Chapter XIII
THE COMITIA TRIBUTA AND THE RISE OF POPULAR SOVEREIGNTY FROM 449 TO 287
For a time after the Valerian-Horatian legislation the senate and magistrates, as was intimated at the close of the preceding chapter, maintained their authority but slightly impaired against the rising popular power. It is true that in 427 the centuries acquired the right to declare a war of aggression.[1695] Defensive wars in behalf either of Rome or of an ally were regularly decided upon by the senate;[1696] and the question whether the war was necessary for the safety of the state admitted of a broad interpretation.[1697] From the beginning of the period to the year 321 treaties of peace and of alliance were still made either by a magistrate, with the authorization of the senate,[1698] or more commonly by the senate itself, even though the alliance or offer of protection was such as to render war with other states inevitable;[1699] and at the close of a conquest the senate disposed of the acquired territory and population.[1700] Through its authority alone, till 332, the censor bestowed the perfect or the limited citizenship.[1701]
In the affairs of peace it retained almost as absolute power of administration as in the preceding period.[1702] We find it, accordingly, authorizing a magistrate to vow games and the erection of a temple in the event of victory,[1703] providing for the restoration of the city after the Gallic conflagration,[1704] for the building of temples,[1705] introducing pay for military service,[1706] levying the taxes,[1707] dividing the public lands among the citizens,[1708] founding colonies,[1709] and recalling under penalty of death those who without permission had gone out to colonize a captured city,[1710] directing the appropriate college to consult the Sibylline books,[1711] and ordering the aediles to take measures against the inroad of foreign superstitions,[1712] and the consuls to punish with rods and beheading the instigators to revolt among the allies.[1713] It was in obedience to a decree of the senate that the consul, or military tribune with consular power, suspended his own imperium and that of his colleague or colleagues by the appointment of a dictator,[1714] who had power to compel the resignation of all other magistrates.[1715] Or the senate could directly order the magistrates to retire from office, with or without a scruple as to the auspices.[1716] It rewarded successful commanders with triumphs[1717] at the expense of the state[1718] and in time of especial danger it armed the consuls with absolute imperium.[1719] In the face of an opposing force so vast as here indicated, the assemblies for a time made slow headway. The development of their functions through the period between the Valerian-Horatian and the Hortensian legislation will now be followed.
I. Elective
Appreciating the great possibilities of the tribunate, the patricians attempted to fill the college with men of their own rank. If we are to trust our authorities, an effort was made in that direction immediately after the fall of the decemvirs, when it was agreed that the pontifex maximus should preside over the tribal comitia for the election of the first tribunes of the plebs under the restored constitution.[1720] Among the men chosen were some so closely attached to patrician interests that at the end of the year they secured the election of successors who coöpted into the college two patricians of consular rank.[1721] At this crisis there was great danger that the college of tribunes might become a possession of the patricians. It was averted, however, by a certain tribune, L. Trebonius, who succeeded in carrying a law that whoever presided over the comitia for the election of tribunes should continue till ten tribunes were elected, the object being to preclude coöptation. The tribune who violated this law was to be burned alive.[1722] That part of Livy’s account which assigns the author of the law to the year 448 is improbable. A half century later (401) he informs us, it happened that two places left vacant in the college were again filled by the coöptation of patricians and, by the strangest accident, a Cn. Trebonius was among their colleagues. His complaint that the Trebonian plebiscite and the leges sacratae were being violated had, in Livy’s opinion,[1723] no result. Probability greatly favors the later date for the law, especially as an instance of coöptation is mentioned between the two dates;[1724] the name of Trebonius or of one or more patricians in the college of 448[1725] was enough to lead the historian astray. The later date fits well the political condition of the time; the patricians, almost succeeding in monopolizing the military tribunate with consular power, proceeded to lay hands on the plebeian tribunate—a far more valuable prize. After 401, however, the Trebonian law proved effective in excluding patricians from the tribunate of the plebs. Henceforth all plebeian officials were elected by the tribes under tribunician presidency.[1726]
In granting the tribal assembly a share in law-making the senate must have hoped to convert it into an organ of the patrician government. Shortly after the Valerian-Horatian legislation, accordingly, patrician magistrates began to convoke this assembly for the election of quaestors (447)—previously appointed by the chief magistrates[1727]—and afterward of curule aediles (367),[1728] military tribunes,[1729] and other minor officials.[1730]
II. Judicial
a. TRIBUNICIAN
By an arrangement referred to in the preceding chapter,[1731] partly based on the law of the Twelve Tables relating to capital cases[1732] and further developed in 449, possibly by an article of the Valerian-Horatian statute, a division of popular jurisdiction was made between the centuriate and the tribal assemblies, on the basis of a distinction in the nature, not of the crime, but of the penalty.[1733] The tribes punished with fines, the centuries with the extreme penalty—banishment or death, to which was always added total confiscation of property. The prosecutor, accordingly, first thought of the penalty, to which he then attempted to adapt the form of action. The people were not guided to their decision by legal formalities and precedents,[1734] but were often swayed by the emotions of favor and anger.[1735] No juror’s oath was imposed upon them to decide according to law and without personal or party bias, such as the Athenian heliasts swore. If the prosecutor, in addition to believing that the case merited the severest punishment, hoped to persuade the people to vote the death or banishment of the accused, he pronounced a capital condemnation, and the case was accordingly appealed to the centuriate assembly. If on the other hand he doubted whether he would be able sufficiently to excite the anger of the populace against the accused, however heinous the crime may have been in his own opinion, he satisfied himself with a finable action, and allowed it to go before the tribes. Sometimes while the evidence was being taken in the latter form of action, the rage of the people was so inflamed against the accused that they clamored for the extreme penalty, in which case the prosecutor might change the form of action agreeably to their wishes.[1736] The greater ease with which the tribes were summoned, together with the growing disinclination of the people to pronouncing the death penalty, induced the magistrates more and more to make use of finable rather than of capital actions. Fines were generally estimated in cattle and sheep till in 430 the consuls L. Julius and L. Papirius Crassus passed a centuriate law establishing a hundred pounds of copper as equivalent to an ox and ten to a sheep.[1737] Probably the same law provided that no fine should exceed half the value of the estate on which it was levied.[1738]
For the period immediately following 449 the authorities—uncritically as will soon be made evident—assign to the tribunes of the plebs a formidable jurisdiction in finable actions, not only over private persons,[1739] but also, on account of official misconduct, over functionaries of every grade from ambassadors and tresviri coloniae deducendae to consuls and dictators. Such prosecutions were usually brought after the retirement of the accused from office. A chronological list of the principal cases reported will be instructive.
In 442 the three commissioners for conducting a colony to Ardea were prosecuted by the tribunes on the ground that, by enrolling Ardeates in place of Romans in the list of colonists, they had circumvented the law which called their commission into being. The action would probably have been finable; but the accused avoided trial by remaining in the colony.[1740] In 423 M. Postumius and T. Quinctius, retired tribunes with consular power, were tried for mismanagement of the war with Veii. The former was fined 10,000 asses; the latter was exculpated by all the tribes.[1741] In 401 two other retired tribunes with consular power were prosecuted by the tribunes of the plebs and fined each 10,000 asses.[1742] The imposition of a fine on Camillus, 391, has already been considered.[1743] In 389 a tribune of the plebs brought an accusation against Q. Fabius on the ground that the latter while ambassador to the Gauls had fought against them in violation of the law of nations. The accused suddenly died, possibly by suicide, before the day of trial.[1744] In 362 the dictator of the preceding year, L. Manlius, was prosecuted by a tribune because, though appointed for the sole purpose of driving the nail, he had nevertheless made a levy of troops and that with extreme cruelty. But the prosecutor dropped the accusation, intimidated by the son of the accused.[1745] This is the view of Livy, whereas Cicero[1746] states the ground of the charge to have been the addition of a few days to his dictatorship. If historical, the prosecution may possibly have been for perduellio, and in that case it would have come before the centuries.
The following cases are historically more certain. Lucius Postumius, prosecuted by the tribunes of the plebs in 293 for the misuse of his consulship of the preceding year, escaped trial by becoming the legatus of the consul Carvilius. The charge was that in his campaign he had not limited himself to the province assigned him by the senate.[1747] Evidently the intention of the prosecutor was not serious.[1748] The consul Q. Fabius Gurges of the year 292, defeated in battle, was recalled, and his conduct was impugned before the people. The past services and the promises of his father saved him, and he continued his consulship with greater success. The accusation probably did not take the form of a trial, but was presented in a resolution to remove him from office[1749] or at least from the command of the army. L. Postumius, third time consul in 291, employed his army to work on his own estate; and on the expiration of his office he was brought to trial therefor by the tribunes and condemned.[1750]
In the period under discussion, 449-287, a single effort to hold the plebeian tribunes responsible for their official conduct is reported. In 293 two retired tribunes were condemned to a fine of 10,000 asses each on a charge of having favored the patres by interceding against the proposals of colleagues.[1751] This instance, if historical, is the only one of the kind before the revolution. The tribunes doubtless felt that the prosecution of their predecessors rendered their own future unsafe.
Several attempts were also made by legislation to reach results equivalent to judicial sentences. In spite of the prohibition of privilegia by a law of the Twelve Tables, Sp. Maelius, a tribune of the plebs in 436, tried to carry a resolution for the confiscation of the property of Servilius Ahala; but the people rejected it.[1752] Another privilegium was the resolution of the plebs of 368 which threatened M. Furius Camillus with a fine of 500,000 asses, should he use his dictatorship to obstruct the Licinian-Sextian bills then under discussion.[1753] It was certainly not supported by a senatus consultum, and probably the proposers had no serious intention of carrying it into effect.
In reviewing the finable actions alleged to have been brought by the plebeian tribunes during the two centuries which intervened between the institution of their office and the Hortensian legislation, as in the case of the capital actions,[1754] we are struck by the relatively small number belonging to the latter part of the period; in fact to the time following 362 two cases only are assigned, one of which is insignificant. The conclusion we must draw from this fact is similar to that expressed with relation to the capital cases—that the finable actions attributed to the earlier period are in all probability largely unhistorical, and that before the enactment of the Hortensian law the jurisdiction of the tribunes in finable cases was limited and rare.
b. AEDILICIAN
For some time after their institution the tribunes of the plebs, having no viatores or at least none that were recognized as public officials,[1755] depended upon the two plebeian aediles as bailiffs for making arrests and for executing sentences.[1756] The latter functionaries seem to have stood in some such relation to the tribunes as the quaestors toward the consuls. It was accordingly as deputies of the tribunes that they acquired jurisdiction.[1757] The earliest mentioned case, 454, is the trial and condemnation of a retired consul in a finable action for official misconduct.[1758] It should be placed in the same mythical category with the numerous tribunician prosecutions of the period.[1759] After the institution of curule aediles, 367, the aediles of the plebs continued indeed to serve occasionally as bailiffs of the tribunes,[1760] but acquired in addition, along with those of curule rank, an independent jurisdiction. In 357 C. Licinius Stolo was prosecuted by M. Popillius Laenas on the charge of having circumvented his own law by emancipating his son in order that he and his son might each possess five hundred iugera of the public land. He was fined 10,000 asses.[1761] From the cases to be mentioned below the inference may be drawn that the accuser was an aedile. In 298 several persons were prosecuted by the aediles, whether curule or plebeian is not stated, for violation of the same law, and hardly one was acquitted.[1762] In 295 the plebeian aediles made considerable money by fining those who had trespassed against the article of the Licinian-Sextian statute which related to pasturage;[1763] and two years afterward violators of the same provision were again fined, on this occasion by the curule aediles.[1764] Actions against usurers were brought by aediles in 344,[1765] 304,[1766] and 295.[1767]
Shortly before 328, M. Flavius was prosecuted before the people by the aediles for the crimen stupratae matris familiae, and acquitted.[1768] In 295 Q. Fabius Gurges, a curule aedile,[1769] accused several matrons before the people, also of stuprum, and fined them.
In the period between the Licinian-Sextian and the Hortensian legislation, accordingly, the jurisdiction of the aediles, so far as is known, was limited to usury, stuprum, and the violation of laws regarding the occupation and pasturage of the public land. They had nothing to do with perduellio or related offences, or with the accountability of magistrates, or with any capital actions whatsoever. All their trials were finable, and in case the fine exceeded thirty cattle and two sheep, or the equivalent, 3020 heavy asses,[1770] an appeal could be made to the tribes. The plebeian aediles equally with the tribunes[1771] lacked the power to summon patricians, whereas the curule aediles as patrician magistrates[1772] possessed the right; but no distinction in the composition of these tribal assemblies, corresponding to the form of presidency, is suggested by the sources.[1773]
III. Legislative
The legislative function of the tribal assembly under tribunician presidency after the decemvirate (451-450)[1774] is represented as bringing forthwith into being the Icilian and Duillian plebiscites of 449. That of Icilius granted amnesty to those who had seceded from the decemvirs.[1775] The first plebiscite of Duillius provided for the election of consuls cum provocatione.[1776] Both acts are alleged to have been passed, however, before the resolutions of the plebs had acquired the force of law. The second Duillian plebiscite, which followed the enactment of the Valerian-Horatian statute, and which was therefore valid for all the citizens, threatened with scourging and death any one who left the plebs without tribunes or who caused the election of a magistrate without appeal.[1777] Its first provision was merely the expression of a principle on which the plebeians, had from the beginning insisted as essential to the continuance of the office from year to year;[1778] the second clause precluded the recurrence of an elective magistracy like the decemvirate just past.[1779] According to Diodorus[1780] an agreement was made in this year between the patricians and plebeians by which one consul at least should be a plebeian. Although Diodorus generally drew from sources more ancient than those of Livy, he is wrong in assigning this provision to so early a date.[1781]
For the same year is recorded another Icilian plebiscite, which granted the privilege of a triumph to the consuls after the senate had refused it.[1782] The alleged act is suspicious, in the first place, because the two consuls must have had the support of a majority in the senate, as the acceptance of their great constitutional statute proves. Then, too, a resolution of the people for granting the triumph could not avail in this period without the consent of the senate. The last observation applies as well to the alleged refusal of the senate to ratify an act of the people in 356 for granting a triumph to the first plebeian dictator.[1783] Such a resolution merely assured the triumphator that the people would be present at the festival. Without the consent of the senate, they could not appropriate the necessary funds for the occasion;[1784] but the general always had a right to triumph, in earlier time within the city and later on the Alban Mount, at his own expense.[1785] If the senate decreed the triumph, as remained the rule,[1786] ratification by the people was unnecessary, though it sometimes occurred.[1787]
The Trebonian plebiscite, 448 or more probably 401, has already been discussed.[1788] The interest of the plebs in enhancing the dignity and importance of their own order manifested itself not only in this act but also in the Canuleian plebiscite of 445, which reëstablished conubium between the patricians and plebeians after it had been forbidden by a law of the Twelve Tables.[1789] Closely related is the centuriate law of the same year for the institution of tribunes of the soldiers with consular power to be elected indiscriminately from the two social classes.[1790]
Slightly earlier, if we may trust our sources, the people were given an unwonted opportunity to share in the decision of questions relating to foreign affairs; and the favor fell to the comitia tributa under patrician presidency, which had convened in this form for the first time in 447 for the election of quaestors.[1791] The question before this assembly in 446 was the arbitration of a dispute between Ardea and Aricia concerning a piece of territory. The contestants brought the case before the Roman senate, which usually decided such matters on its own responsibility, but which in this instance requested the consuls to refer the business to the tribes. The aim of the senate must have been to throw the odium of the decision upon the people, who, disregarding the claims of the two contestants, lost little time in adjudging the disputed property to Rome.[1792] This act did not serve as a precedent for further interference of the assembly in foreign affairs; and when in 427 the people acquired the right to declare an offensive war,[1793] the function fell to the centuries rather than to the tribes. Apart from this gain the comitia made little progress[1794] in the period between the Canuleian and the Licinian-Sextian legislation, 445-367. Few legislative acts of the tribes are recorded: the plebiscite which provided in a time of famine for the election of a prefect of the market, 440;[1795] the historically questionable plebiscite which forbade candidates for office to whiten their garments, 432;[1796] the plebiscite of 414 for the creation of a special court to try a case of murder;[1797] the act, probably a plebiscite, which forbade a patrician to dwell on the Capitoline, 384.[1798]
Doubtless in this period there was much agrarian agitation on the part of the tribunes, although we cannot be sure that any of the bills mentioned by Livy[1799] are historical. In like manner the leaders of the plebs, as candidates for the consular tribunate, are represented as agitating for the institution of pay for military service, the money to be derived from rents of public lands.[1800] When the reform came, however, it was by a voluntary concession of the senate extremely annoying to the tribunes, who found themselves thus deprived of a useful ground for complaint, 406.[1801] Epoch-making were the Licinian-Sextian laws, the first, 368, increasing the duoviri sacris faciundis to decemviri and providing that five should be plebeian,[1802] the second, 367, containing in Livy’s opinion four articles: (1) that one consul must be plebeian,[1803] (2) that the interest already paid on debts should be deducted from the principal and the balance rendered in three equal annual instalments, (3) that no one should occupy more than five hundred iugera of the public land,[1804] (4) that the right to pasture cattle and sheep on the public land should also be limited.[1805]
Thereafter we find the tribal assembly more active in legislation. To the year 358 is assigned the first well-authenticated lex de ambitu, the Poetelian plebiscite, which forbade candidates for office to visit markets and meeting-places outside the city for electioneering purposes.[1806] The motive, however, which Livy attributes to the author—to prevent the further enlargement of the patricio-plebeian nobility through the admission of new men—was hardly possible at this early date.
In 357 tribal comitia under patrician chairmanship passed a law for placing a tax of five per cent on manumissions of slaves. The circumstances attending this meeting were peculiar; the consul Cn. Manlius summoned to it the soldiers of his army in the camp at Sutrium.[1807] It must have been composed, therefore, of a small minority of the citizens, lacking not only those who were too old for service, but doubtless a majority of the men of military age. Difficulties regarding the auspices, too, and other formalities might have arisen; and yet in spite of the fact that the enactment of the law was an intrusion within the administrative domain of the senate, the patres gave their sanction;[1808] and the legality of the measure was never called in question.[1809] In contrast with the general prevalence of free labor in early Rome, the number of slaves since the conquest of Veii had become considerable; and wealthy individuals were evidently beginning the practice of building up a political following through the clientage of their freedmen, to the disadvantage of the older plebs. The majority of the patricians must have been in sympathy with the effort of their consul to check this new development, although they could not approve the peculiar means by which the law was passed. Nor could the tribunes of the plebs allow legislation to be thus removed beyond the sphere of their control. The repetition of the procedure was immediately forbidden accordingly by a plebiscite which threatened with the death penalty any magistrate who held comitia away from the city.[1810] In the same year the people took a further step in the administration of finance by enacting the Duillian-Menenian plebiscite for establishing the rate of interest at ten per cent[1811]—thereby confirming a law of the Twelve Tables[1812]—and five years later the consular law of P. Valerius Publicola and C. Marcius Rutilus for the institution of a bank under the direction of five commissioners to assist debtors in meeting their obligations (352).[1813] The latter was followed in 347 by a plebiscite which reduced the maximal rate of interest to five per cent and provided for the payment of the principal in four equal annual instalments.[1814]
This activity of the people in financial legislation is to be explained by the economic distress which lasted many years, and which the measures thus far mentioned failed to remedy. There can be no doubt that the general indebtedness and the resultant discontent of the masses, assigned by the annalists to the earliest years of the republic, belong in reality to the period now under consideration. The murmurings of the debtors culminated in 342 in a military mutiny, with which the masses of citizens seem to have been in full sympathy. The demands of the soldiers and civilians were met (1) by a law of the dictator Valerius, which, remedying other grievances of the soldiers, is said to have proclaimed an abolition of debts,[1815] (2) by the plebiscite of L. Genucius, tribune of the same year. The provisions of the latter were as follows: (1) it forbade the lending of money on interest; (2) it ordered that no one should fill the same office within a period of ten years, or two offices at the same time;(3) it allowed both consuls to be plebeian.[1816] Although Livy, failing to find the Genucian law in all his sources, hesitates to accept it as historical, there seems to be no cogent ground for disbelieving that such a statute was actually passed.[1817] The legal rate of interest had recently been lowered one-half; and the plebeians, not satisfied with the temporary relief afforded by the cancellation of debts, hoped for all time to free themselves from an intolerable affliction by one sweeping legislative act. This article of the plebiscite, however, probably remained from the beginning a dead letter. The second continued unenforced for many years,[1818] whereas the provision regarding two consuls had to wait more than a century for its first practical application.[1819] The patricians had often violated the Licinian-Sextian statute by placing two of their number together in the consulship. Perhaps the third article of the Genucian law was intended to make them respect the earlier statute by a threat to exclude them entirely from this office. If this was the object of Genucius, his means certainly proved effective.[1820]
Three years later the dictator Publilius Philo passed through the centuriate assembly the statute (1) that plebi scita should be binding on all the quirites; (2) that before the voting began the patres should give their auctoritas to proposals brought before the comitia centuriata; (3) that one censor at least should be plebeian (339).[1821] All three articles were alike aimed against the political dominance of the patricians. The second freed centuriate legislation from their control;[1822] the third[1823] assured to the plebeians a just share in the function of determining the composition of the tribes, hence of the civil and political status of every Roman. It was not long afterward that the censors were to be given in addition the function of revising the list of senators.[1824]
The first article has substantially the same form as the corresponding provision of the Valerian-Horatian statute, 449, and of the Hortensian, 287.[1825] All manner of conjectures as to the relation of these three laws to one another has been offered, the readiest theory being that the Valerian-Horatian statute had become obsolete, and required reënactment.[1826] The explanation is proved impossible by the circumstance that important plebi scita were passed under the Valerian-Horatian provision, the last being the Genucian. The Valerian-Horatian law could not have become obsolete in three years. The true explanation is to be found in the fact, now well known to historians, that the political ideas and political struggles assigned by our sources to the fifth century B.C. belong mostly to the fourth. The setting of the law of Publilius Volero, 471, was inaccurately transferred to it from the law of Publilius Philo, 339. The very existence of the latter statute is proof that the patricians were at that time declaring plebi scita invalid on the ground that they were passed by only a part of the people—a complaint recorded against neither the Canuleian nor the Licinian plebiscite. Hence, as the sources indicate, the patricians were in the assembly which passed these two measures. We may legitimately apply to the period from 449 to 339 the story of the long but finally successful struggle on the part of the tribunes to expel the patricians from the comitia tributa under plebeian chairmanship—a story which the sources assign to the period ending in 367. The struggle must be accepted as historical, for there was in later time no motive for creating it; and as it must have been a matter of tradition rather than of record, it could not well be placed earlier than the fourth century B.C. We may suppose that the patricians yielded the more readily because they at last recognized their inability simply by their votes to control the tribunician assembly, and because from the beginning they disliked to submit to the authority of a plebeian president. Hence their withdrawal from that form of comitia was in the first instance voluntary. The assembly, therefore, which adopted the Genucian plebiscite was de facto, though not de jure, exclusively plebeian. When accordingly the patricians objected to its validity on the ground that it was passed by but a part of the people, Publilius Philo, the most eminent plebeian statesman of his age, carried through the centuriate assembly the law above mentioned, that the resolutions of the tribunician assembly as then constituted, of plebs only, should be valid for all the people. This interpretation throws light on the otherwise inexplicable circumstance that the Genucian plebiscite was so indifferently enforced. The exclusion of the patricians was in line, too, with the general policy followed by the plebeians against them in the fourth century: the plebeians shut the patricians out (1) from the plebeian tribunate, probably 401. (2) from five places in the college of decemviri sacris faciundis, 368, and from one of the consular places, 367. (3) by agreement from the two curule aedileships on alternate years, (4) from one of the censorial places, 339. (5) from a fixed number of places in the college of augurs and of pontiffs, 300. It was in accord with this tendency to convert the earlier privileges of the patricians into disabilities that a vote of the people excluded them from those comitia tributa which were presided over by tribunes. This state of affairs was formulated in the antiquarian and juristic definitions of populus and plebs, lex and plebi scitum. The condition, however, seems to have been only transient. The dwindling of the patriciate in numbers and strength, with the corresponding growth of a plebeian nobility, which converted the tribunate and assembly of plebs into most potent organs of the senatorial government, obliterated distinctions between patricians and plebeians within the political assemblies, to such a degree that for the period after the Hortensian legislation no reference to an exclusively plebeian assembly is made by any ancient author. Although this article of the Publilian statute was never formally repealed, we may feel certain that the principle involved was no longer remembered in the age of Cicero.[1827]
The Publilian statute of 339 is not known to have provided for an extension of the field of competence of the tribal assembly; yet we find the comitia tributa soon afterward attending to business heretofore managed by the senate or in one or two instances by the centuries. Although about a hundred years earlier the centuriate comitia had acquired the right to ratify or reject declarations of offensive war,[1828] we find no record of a ratification of a treaty of peace by the people before the year 321, in which occurred the disaster at Caudium; and in this case it was not only the common opinion in Livy’s time, but also the understanding of Claudius, the historian, that the treaty made by the consuls, without the sanction of the senate or the people, was regular and valid[1829]—a “foedus summae religionis,” as Cicero declares.[1830] Even Livy, who aims to prove the procedure defective, admits that the tribunes of the plebs[1831] and Postumius,[1832] one of the consuls who made it, looked upon it as legitimate. But according to Livy[1833] the senate itself declared the treaty invalid on the ground that it lacked popular confirmation;[1834] and in that body the principle was then enunciated that nothing which was to bind the people could be sanctioned without their order[1835]—the first recorded expression of the doctrine of popular sovereignty among the Romans. In this period, however, the people were never called upon to ratify the acceptance of a submission or of an alliance on unequal terms. Such agreements granting Rome the superior right were negotiated, as in earlier time, by the magistrate or senate or by both in conjunction.[1836] The details, too, of every treaty were still left to the magistrates and senate, so that to the end of the republic the senatus consultum continued to be indispensable.[1837] But from the time of the Caudine misfortune, and in consequence of it, the principle was established that a treaty involving a concession of even equal rights on the part of Rome required the sanction of a popular vote. Recorded instances of such ratification for this period (321-287) are rare.[1838] The function fell to the comitia tributa under patrician or plebeian presidency, which in its exercise showed more independence[1839] than did the comitia centuriata in the declaration of wars. In this way the tribal assembly took its place by the side of the centuriate in international affairs.[1840]
The absolute power to bestow the citizenship exercised by the kings[1841] would naturally pass undiminished to the consuls, and thence to the censors on the institution of the latter. It is in fact the opinion of Lange[1842] that these magistrates respectively exercised full rights in the matter, and that they consulted the senate in important cases only. At all events the question is simply as to the relative participation of the magistrates and the senate in the function. The final settlement of Latium after the war, involving the bestowal of citizenship, 338, the senate seems to have attended to alone through a consultum, no mention being made of the people.[1843] In the whole course of Roman history to 332 there is no record of a grant of citizenship by popular vote.[1844] As the Acerrani were left out of account by the senatus consultum above mentioned, L. Papirius in 332 through the first recorded pretorian law granted them the civitas sine suffragio.[1845] In opinion of Lange,[1846] based upon a statement of Velleius,[1847] the censors of the year, Q. Publilius Philo and Sp. Postumius, while enrolling the new citizens, probably obtained a senatus consultum requesting the praetor to bring this subject before the tribes. That a senatorial decree was essential is proved by the case of the Privernates mentioned below. We may well believe that the great plebeian statesman Publilius gladly embraced the opportunity to make the tribal assembly a partner in the important function of imparting the rights of the city. Three years afterward an order of the people, doubtless of the tribes, ex auctoritate patrum, granted the citizenship to the Privernates, 329.[1848] By what authority the Hernicans received the civitas sine suffragio in 306 is not stated.[1849] Long after the Hortensian legislation the principle was established that the people alone without the authorization of the senate had a right to bestow the ius suffragii on whomsoever they pleased.[1850] Logically the function should have fallen to the comitia centuriata as the source of censorial power; but the tribal assembly assumed it because of its connection with the making of treaties.[1851]
It was the province of the centuriate assembly to introduce permanent regulations of existing magistracies and to institute new ones;[1852] but the function was now transferred, silently so far as we know, to the tribes. Far-reaching in its effect was the creation of the promagistracy in 327. No prolongation of an official power is known to have occurred before this date. The extension of the territory of Rome and of her military operations was now calling for greater elasticity in the duration of commands; but in the face of a strong movement toward popular rights the senate dared not assume the responsibility of so sweeping an innovation. It placed in the hands of the tribunes, accordingly, the business of bringing before the people a rogation for prolonging the imperium of the consul Q. Publilius Philo to the end of the war with Naples, instituting by this precedent the promagistracy.[1853] Again in 295 the imperium of the consul Volumnius was prolonged for a year by a decree of the senate ratified by a plebiscite.[1854] After the custom had been established, however, the senate ordinarily attended to the prolonging of the imperium, as in 308,[1855] in 296,[1856] and in 294,[1857] consulting the people, as it seems, only in cases of tribunician opposition.[1858] No instance of popular interference in the assignment of provinces is mentioned before 295, when a resolution of the comitia tributa, under what form of presidency is not stated, granted Etruria to the patrician Fabius in preference to the plebeian Decius.[1859] This act was an inroad upon the right of the magistrates to divide the business of their office among themselves by agreement or lot. In 292 another resolution of the people recalled from the field the consul Q. Fabius Gurges because of ill-success in war with the Samnites. The senate was the prime mover in the matter, but the form of assembly is unknown. The question concerned either the abrogation of his magistracy or more probably his transfer to some other activity.[1860] Even in the latter case the act of the people was a remarkable deviation from their usual modest policy of dealing with officials.
In 318 a law, doubtless tribal, was passed for sending praefecti iure dicundo to Capua;[1861] and similar laws were from time to time enacted for assigning the same kind of officials to other communities of Italy.[1862] These prefects continued to be appointed by the urban praetor till after 124.[1863] Whether the law of 318 was pretorian or tribunician cannot be determined.[1864] Similar in character was the Atilian-Marcian plebiscite for the election of sixteen military tribunes instead of six, 311.[1865] The substitution of election for appointment was in effect the institution of a magistracy—in this case merely an increase in number within a magisterial college which had existed since 362. In the act of 311 the tribes usurped a function which had hitherto belonged to the centuries.[1866] Although the elective military tribunes remained subordinate to the consuls, the change increased their dignity and in some degree their independence, while it tended to impair the efficiency of the service. Naturally the office became a stepping-stone to political honors. The Decian plebiscite of the same year instituted the duumviri navales charged with the function of repairing, equipping, and commanding the fleet.[1867] The two plebiscites of this year have the appearance of a compromise between continental and commercial interests under the influence of Appius Claudius Caecus the censor. Closely related is the article of the Ogulnian plebiscite, 300, which provided for an increase in the number of augurs and pontiffs.[1868] Here, too, belongs the plebiscite of 296 for the appointment of commissioners for conducting colonies.[1869] Henceforth it was the custom of the senate to refer to the people the creation of all extraordinary offices, and their election to the comitia tributa usually under pretorian presidency.[1870]
The people made a further advance when they undertook to regulate by law the composition of the senate itself. To the period between the Publilian legislation of 339 and the censorship of Appius Claudius Caecus, 312, belongs the famous Ovinian plebiscite concerning the revision of the senate list.[1871] It transferred the function from the consuls to the censors, and required the latter under oath (iurati; MS. curiati) to enroll all who were worthy among the retired magistrates of every rank, from the curule functionaries down through those of plebeian standing to the quaestors.[1872]
The Valerian-Horatian and Publilian statutes are evidence of the right of the people to legislate regarding the composition and powers of their assemblies. No longer content, however, with the making and repeal of laws,—a right guaranteed by the Twelve Tables,[1873]—they began the practice of occasionally suspending laws to the advantage or disadvantage of individuals or of classes—in other words, the voting of privilegia.[1874] There were repeated violations of that article of the Genucian plebiscite which forbade reëlection to an office within a period of ten years,[1875] and no mention is made of the necessity of a dispensation before the year 298, when Q. Fabius Maximus is alleged to have objected to further reëlection on the ground that such conduct was forbidden by law. Thereupon the tribunes of the plebs declared that to remove the obstacle they would propose to the people that he should be absolved from the legal requirement.[1876] But in fact, as Lange[1877] has noticed, Fabius had not been consul for ten years and was therefore legally eligible. Lange suggests that this story of the dispensation may belong to his next election in 295.[1878] At all events the custom of granting dispensations began about this time,[1879] although we need not suppose that the patricians attached much importance to the Genucian statute, which was adopted by an exclusively plebeian assembly. This function assumed by the people of freeing from the power of the law, often exercised in historical time by the senate as well, marks a great advance toward popular sovereignty. The idea that the law was sovereign, which had arisen in the early republic, was now yielding to the idea that it was subject to the caprice of every popular gathering.[1880] The aristocracy was giving way to a democracy, which under the conditions destined to prevail at Rome could only mean mob-rule.
The right of the people in their tribal assemblies to legislate concerning religion had already been established by the precedent of the Licinian-Sextian plebiscite on the decemviri sacris faciundis[1881] and of other less important acts.[1882] Immediately after the Publilian legislation the comitia of tribes became more active in this field. To the period of the great Latin war according to Cicero,[1883] hence necessarily to 338,[1884] belongs the consular lex Maenia, which added to the Ludi Romani the day called instauraticius,[1885] although less trustworthy accounts assign the establishment of this day to 491.[1886] The law initiated by the senate in 304 forbidding the dedication of a temple or altar except by permission of the senate or of a majority of the college of tribunes[1887] was probably passed by the comitia tributa plebis. In the opinion of Lange[1888] it was either identical with, or afterward supplemented by, the lex Papiria tribunicia, which forbade the consecration of a temple, precinct, or altar without an order of the plebs.[1889] The latter is the more probable; it seems reasonable that, as Lange suggests, the right of the people in this matter developed from the necessity of referring to them cases in which the senate and the tribunes could not agree. Technically religious, though of vast political consequence, was the Ogulnian plebiscite of 300, which increased the number of augurs and pontiffs to nine each, and provided that four augurs and five pontiffs should be plebeian.[1890] It was the last step in the opening of offices to the plebs.
In their effort to gain control of the more important judicial business the people made slower progress. In all probability it was not till after the Publilian legislation that the centuriate and tribal assemblies began regularly to exercise the function of appellate courts—a right established long before by legislation[1891] and confirmed for the centuries by the Valerian law of appeal in 300.[1892] The creation of special judicial commissions—quaestiones extraordinariae—belonged originally to the senate; and the establishment of such a court de caede through a plebiscite in 414, if historical, was merely the execution of a senatus consultum.[1893] The task of trying and condemning the matrons for poisoning in 331 must have fallen to such a quaestio extraordinaria not expressly mentioned. Whether it was instituted by the senate or the tribes cannot be known.[1894] The special quaestio, too, concerning conspiracy, at first under dictatorial and afterward under consular presidency, seems to have been instituted solely by a senatus consultum.[1895] The Flavian rogation of 323 for punishing the Tusculans for having given aid and encouragement to the enemies of Rome[1896] may have aimed to create a special court for the purpose, or it may have been an attempt to dispense justice by means of legislation.[1897] However that may be, it was rejected by all the tribes but one. The Satricans, who revolted to the Samnites after the Caudine disaster and were conquered in 319, were punished by the senate acting as a special court on the authority of the Antistian plebiscite.[1898]
The right of the people both in the centuries and in the tribes to legislate on finance had before 339 been well established by precedent. Economic as well as social in character was the lex Poetelia, which prohibited loans on the security of the person,[1899] and which was proposed to the tribes, or possibly to the centuries, by C. Poetelius Libo as consul in 326 or as dictator in 313.[1900] It abolished contractual but not judicial servitude, though it probably mitigated the latter.[1901] Politically more significant than this individual act was the long-continued popular effort to gain control of the disposal of the public land. It was to the detriment of the senatorial prerogative that the tribunes of the plebs took up the agrarian question from the time of Sp. Cassius,[1902] and continued almost unceasingly to agitate for the limitation of the use of public land by the rich and the division of the surplus among the poor, till they succeeded in embodying their ideas in the Licinian-Sextian law on these subjects. Equally to the province of the senate belonged the planting of colonies[1903] both from the military and from the financial point of view. Here, too, the tribunes in the economic interest of their constituents began early to agitate for a share in the administration.[1904] It was not till 296 that they met with any success in this direction, and then at the will of the senate, which charged the tribunes with the business of introducing a plebiscite for ordering the praetor to appoint triumviri for conducting colonies to certain specified places.[1905] This was the modest outcome of centuries of agrarian and colonial agitation on the part of the tribunes.
The fact is that after the enactment of the Genucian and Publilian laws the plebeians continued for about a generation relatively content with their economic condition. Frequent victories brought booty,[1906] and conquests made extensive assignments of land possible.[1907] But the people must have found the third Samnite war oppressive. Although of far shorter duration than the second, it required larger armies and longer and more distant campaigns. Under the burden of military service the plebs again fell into debt, in spite of the unusual distributions of booty among the soldiers when victorious.[1908] Their burden was rendered the heavier by the circumstance that many of the wealthy were violating the Licinian-Sextian restrictions on the use of public land and pasture, and were doubtless failing to pay their dues[1909]—a course of conduct which rendered necessary not only the assignment of the spoil of 293 to the aerarium but also the imposition of a tributum especially vexatious to the plebs.[1910] The distress was augmented by a pestilence which began in 295 and continued for several years.[1911] Whereas all on actual service were by law exempt from prosecution for debt, many citizens who remained at home were the victims of the usurers, who were occasionally fined for their illegal exactions.[1912] Again all the commons incurred hopeless debts, which at the close of the war (290) the creditors must have proceeded to exact with their usual ruthlessness. The institution of the tresviri capitales in the following year[1913] is proof of the intention of the government to enforce the criminal law with the utmost rigor. A new movement for the relief of debtors had already set in, and the creditors were organizing resistance to the popular demands. As long as the nobility could rely upon the tribunate of the plebs,[1914] they felt secure. Even if a bill for the benefit of the poor should be presented, they believed their interests to be well fortified by tribunician intercession and by the senate, which, composed chiefly of creditors, would certainly refuse its sanction to such a measure. The grave economic distress, however, at length filled the tribunate with men who were at one in demanding a radical measure of relief, and who accordingly presented a bill for the abolition of debts. Many times they offered it to the tribes in vain; the senate refused its assent; for the creditors, among whom must be counted a majority of the senators, hoped to recover both principal and interest. Willing to compromise, the tribunes then offered the senate, if it should yield, a choice of two alternatives, neither of which can be deduced with certainty from the mutilated fragment of Dio Cassius, our authority for this event. One of them, however, is conjectured to be that the principal alone should be recovered,[1915] in what way cannot be made out; and the other that the interest already paid should be deducted from the principal, and the balance rendered in three equal annual instalments—a repetition of the Licinian-Sextian provision regarding debts. At first the debtors were willing to grant this concession through fear of failing to obtain any degree of relief; but the creditors, now hoping to recover everything, refused to be conciliated. After a time both parties shifted their attitude; the creditors expressed themselves as satisfied to recover the principal merely, while the debtors would no longer accept either alternative of the compromise. The sedition, for such the conflict became, continued interminably; and although the creditors yielded, little by little, far more than they had intended in the beginning, the debtors made each concession the basis of a new demand. They brought the long, serious struggle to a climax by seceding to the Janiculum, at the very time when the Tarentines were completing the organization of a coalition of Etruscans, Gauls, Samnites, and several other peoples against Rome.[1916] Q. Hortensius, appointed dictator to meet this crisis, carried through the comitia centuriata a group of provisions for satisfying the demands of the seceders:
(1) Doubtless a clause for the relief of debtors, of which no mention is made in our scant sources.
(2) A provision that without the consent either of the senate or of the patrician portion of it a resolution of the plebs should be valid for all the citizens.[1917]
At the time when the Valerian-Horatian statute provided that with the consent of the senate resolutions of the tribunician comitia tributa should have the force of law, the senate was still composed exclusively of patricians; and the phrase senatus consultum in this law was therefore considered a full equivalent of the patrum auctoritas, the only difference being that the consultum was given in advance of a popular vote and the auctoritas subsequently to it. But when with the appearance of plebeians in the senate the two acts began to drift more widely apart, the patricians successfully claimed an exclusive right to the auctoritas, which, as we have seen,[1918] was reduced to a formality, so far as centuriate legislation was concerned, by an article of the Publilian law. So long as the patricians voted in the tribunician comitia tributa, however, and constituted a majority in the senate, they were willing to abide by the specific declaration of the Valerian-Horatian statute which conditioned the validity of the plebiscite on the senatus consultum. But from 339 they were legally excluded from the tribunician comitia tributa, and they foresaw, moreover, the end of their majority in the senate. In the period between 339 and 287, accordingly, they set up a new claim, based doubtless on the practical intention of the Valerian-Horatian law, to be free from plebi scita because the latter were passed without their auctoritas.[1919] If they could make good their intention, they would remain unaffected by tribunician laws for the abolition of debt. But the Hortensian statute settled finally the controversy to their disadvantage. That it also rendered the consultum unessential to the validity of the plebiscite is proved not only by later usage but also by the statement of our sources that resolutions of the plebs were placed by the Hortensian act on an equal footing with laws.
(3) Now that the tribunes were given equal freedom with the patrician higher magistrates in initiating legislation, it was of advantage to the nobility to bring the former into the closest possible touch with the senate. Probably therefore the right of the tribunes not only to sit in the senate, but also in the interest of their business to summon that body and to preside over its sessions when so convoked, was due to a provision of the Hortensian law.[1920]
(4) A correlate of the full power to initiate legislation was the right to veto acts of the government, probably acquired by the Hortensian statute.
(5) But the veto depended upon the power to prosecute.[1921] The unlimited veto implied a right to bring finable or capital actions independently of the will of the patrician magistrates. Either by a provision of the Hortensian statute or as a direct consequence of it, the tribunes acquired an unconditioned right to prosecute, being now competent in capital cases to compel the praetor to grant the auspices for holding the comitia centuriata. With the establishment of their absolute power of intercession and jurisdiction they ceased to resort to sedition.
(6) Another article provided that the market-days should be fasti, allowing judicial business to be done thereon, but forbade the meeting of voting assemblies on such days.[1922] The peasants who came into the city to use the markets were thus afforded an opportunity to have their law suits settled without being engrossed by the duty of voting, though the magistrates were at liberty to invite them to informal contiones.[1923] This Hortensian provision was conservative in so far as it placed the tribunician assembly under the same pontifical regulations of the calendar as those which were to control the other forms of comitia.[1924]
The right of the people to elect their magistrates, with the exception of the dictator and the master of horse, existed from the beginning of the republic. Their right also to create new offices began with the institution of the consulship, and was frequently exercised during the period treated in this chapter. In the age which begins with the Valerian-Horatian legislation we find the people regulating by law the qualifications and conduct of candidates as well as the powers and functions of the magistrates themselves. They had the same right to deal with the organization and competence of the assemblies. From 358 to 287 they rapidly extended their legislative power, by precedent rather than by statute, over the whole field of the constitution and over the administration in all its departments; they ventured even to regulate the senate and to interfere with the imperium. Controlled originally by the senate, in the end they won their freedom from that body, whereas the initiative in every act always remained with the presiding magistrate. Meantime they had acquired supreme judicial power. In constitutional theory they were at last sovereign. The senate and the magistrates, so this theory asserted, still retained large administrative powers for the sole reason that the assemblies, unable to manage the current details of public business, were content with occasional participation and regulation. Most of these gains had been made by the tribes under the presidency of tribunes or of patrician magistrates, usually praetors. In legislation the comitia tributa had rendered the centuriate assembly dispensable excepting in declarations of offensive war and in the confirmation of censorial elections. The question whether the people in their centuries and tribes were to realize their sovereignty in actual public life was left to the following period.
The literature on this subject is included in the bibliography for the preceding chapter.
Chapter XIV
THE JUDICIAL FUNCTIONS OF THE COMITIA TRIBUTA FROM 287 TO THE END OF THE REPUBLIC
I. Tribunician Jurisdiction
Whereas the sources assume that the tribunes of the plebs as early at least as the decemviral legislation had cognizance of both finable and capital cases,[1925] an examination of the recorded trials leads to the conclusion that they made little use of this power till the period between the legislation of Publilius Philo (339) and that of Hortensius (287).[1926] Whether their activity after 339 was due to the Publilian enactment of that year[1927] or merely to the gradual evolution of popular rights cannot be determined. However that may be, it was not till after the Hortensian legislation that we find the tribunician jurisdiction at its highest point of development and free from every restriction.[1928]
The capital actions brought by the tribunes before the centuries in the period from Hortensius to the end of the republic have already been reviewed.[1929] We have now to consider the finable cases brought before the comitia tributa in the same period. It is characteristic of the era immediately following the Hortensian legislation, 287-232, described in the following chapter as politically stagnant,[1930] that only one tribunician prosecution is mentioned, and that against the consuls of 249 for contempt of the auspices. Appius Claudius Pulcher, one of the consuls, was fined a hundred and twenty thousand asses, after the action had been transferred from the centuries to the tribes in the way described in an earlier chapter.[1931]
In accord with the spirit of the Flaminian era, 232-201, on the other hand, is the prosecution of the retired consuls, M. Livius Salinator and L. Aemilius Paulus, on the ground that they had unjustly distributed the booty gained in war. Technically the charge seems to have been peculatus;[1932] it was brought before the tribes in 218, doubtless by tribunes of the plebs. Aemilius narrowly escaped condemnation; Livius was fined. The popular feeling against them was extremely bitter.[1933] In 214 M. Atilius Regulus and P. Furius Philus, censors, degraded to the condition of aerarius[1934] L. Caecilius Metellus,[1935] who after the battle of Cannae had tried to persuade the knights to abandon Italy.[1936] He was elected tribune of the plebs for the following year, and made use of his office in an attempt to prosecute the censors before the close of their administration. His purpose was thwarted, however, by the intercession of the remaining nine tribunes,[1937] who in this way saved for a time a conservative principle of the constitution—the inviolability of the magistrate from prosecutions while in office.[1938] The trial of Postumius the publican, beginning in a finable action and ending as perduellio, has been treated elsewhere.[1939] In the same period falls the trial of the tresviri nocturni for appearing too late at a fire. They were accused by the tribunes and condemned by a vote of the tribes.[1940]
The era of the full-grown plutocracy, 201-134, is characterized by the great number of prosecutions of eminent persons for political objects. M. Porcius Cato was several times brought to trial for the conduct of his consulship, 195, with the result that the speeches delivered in his own defence filled a volume.[1941] In 189 M’. Acilius Glabrio, then candidate for the censorship, was accused of peculatus of booty by two tribunes in a finable action of a hundred thousand asses. The crime was alleged to have been committed in the preceding year, when as proconsul the accused gained over the Aetolians and Antiochus a victory by which he won the right to a triumph.[1942] Cato, formerly his military tribune and now a competitor for the censorship, appearing as a witness, delivered at least four speeches against him. These proceedings forced Acilius to drop the candidacy, whereupon the accusation was withdrawn.[1943] The attack upon this man is to be regarded as a manoeuvre of Cato and his supporters against his political adversaries, the Scipios, who numbered the accused among their friends. In 185 Cato was ready for a direct assault. In that year two of his supporters, both named Q. Petillius, tribunes of the plebs, made in the senate at his instance a demand that L. Scipio Asiagenus[1944] should render an account of the three thousand talents paid him as war indemnity by Antiochus among the conditions of peace. His brother Publius, knowing well that the blow was in reality aimed at himself, resolved to measure his full strength with that of his adversaries. When accordingly the record of the transaction was produced, Publius, complaining that an account of three thousand talents should be demanded of a man who had brought fifteen thousand into the treasury from booty, tore the document in pieces.[1945] In this proceeding he kept strictly within his legal rights.[1946] Nothing further seems to have been accomplished for the present;[1947] but M. Naevius, tribune of the plebs, after entering office December 10, 185, brought against Publius Scipio a prosecution, not for peculatus, but for official misconduct. The specific charge was that in return for the restoration of his son from captivity he, as legatus of his brother, had granted too favorable terms of peace to Antiochus. In the first contio the accused recited his services to the state; in the second, which happened to fall on the anniversary of his victory over Hannibal, he invited the people there assembled to go with him to the Capitoline temple to give thanks to Jupiter, Juno, Minerva, and the gods who kept the place, for having endowed him with the will and the ability to achieve that and other similar deeds in behalf of the commonwealth.[1948] Naturally the dissolution of the assembly vexed the tribunes. Before the day came for the third contio he withdrew from Rome. His brother tried to excuse his absence on the plea of sickness, and Ti. Sempronius Gracchus, tribune of the plebs, prevented his colleagues from causing further annoyance to the great man. The general circumstances indicate that the trial was to take place before the tribes, and that the penalty in case of conviction was accordingly to be a fine. His brother was still in danger. Early in 184 C. Minucius Augurinus brought a finable action[1949] against Lucius concerning the money received from Antiochus.[1950] He was condemned by the tribes, whereupon the prosecutor demanded surety (praedes) for the payment of the fine. But when Scipio failed to comply, the tribune attempted to imprison him. Returning suddenly to Rome, Publius appealed to the tribunes in behalf of his brother. Whereas eight members of the college sustained the prosecutor, one of them, Ti. Gracchus, prevented the imprisonment and consequently the collection of the fine.[1951] But the total result of the proceedings was the overthrow of the Scipios, and the conqueror of Hannibal retired heart-broken to his country estate.[1952]
In the same year, 184, M. Porcius Cato, at that time censor, was prosecuted for official misconduct by tribunes in a finable action for two talents, but was in all probability acquitted.[1953] In this period the tribes must have been unusually active in a judicial capacity,[1954] as Cato was himself prosecuted forty-four times, often doubtless before the comitia tributa, but was always given a favorable verdict.[1955]
C. Lucretius, praetor in 171, was accused in the senate by Chalcidian ambassadors of merciless cruelties and robberies perpetrated by him on their community. Thereupon two tribunes of the plebs, M’. Juventius Thalna and Cn. Aufidius, prosecuted him before the people, technically on a charge of furtum and iniuria. He was condemned by all the tribes to a fine of a million asses.[1956] But after 149 most cases of misgovernment in the provinces came before the quaestio repetundarum instituted in that year.[1957] There were occasional prosecutions for beginning war without authorization.[1958] Toward the end of the pre-Gracchan oligarchy C. Laelius Sapiens, the friend of Scipio Aemilianus, seems to have been brought to trial for malversation in his consulship of the year 140, but was probably acquitted.[1959] A peculiar case, yet characteristic of the time, was that against Cn. Tremellius, praetor in 160, for having “contended injuriously” with the supreme pontiff. It is stated merely that he was fined. If the action came before the people, it must have been brought by a tribune, as the pontiff’s jurisdiction was restricted, so far as is known, to the sacerdotes under his supervision. Whatever may have been the procedure, the effect was to place the religious official above the magistrate[1960]—a policy which could be expected of the generation that adopted the Aelian and Fufian laws.[1961]
Several prosecutions in the era extending from the Gracchi to Sulla partake of the revolutionary nature of the time. The inconsistency in the position of Ti. Gracchus, who depended on the sanctity of the tribunate while technically violating it in the person of his colleague Octavius, is illustrated by his attack on T. Annius Luscus. The latter, a man of consular rank, challenged Tiberius in the senate to answer definitely whether or not he had branded with infamy a brother tribune whom the law declared sacred and inviolable. The senators applauded the challenge; but Tiberius, hurrying from the Curia, convoked the plebs, and ordered Annius to come forward and defend himself against the charge of violating by his words the tribunician sanctity. Before the proceedings could begin, Annius by permission asked his accuser: “If you intend to deprive me of my rank and disgrace me, and I appeal to a colleague of yours, and he comes to my support, and you thereupon lose your temper, will you deprive him of his office?” Plutarch, who tells this story, alleges further that Tiberius, not knowing what to reply, dismissed the assembly and withdrew his accusation.[1962] But the fact that Annius made a speech against Tiberius[1963] indicates that the proceedings went farther. Evidently the accused in some way escaped condemnation. The same political significance attaches to the tribunician capital prosecutions of the time, mentioned in an earlier chapter.[1964] No more actions, however, are known to have been brought by the tribunes before the tribes till 103,[1965] when Cn. Domitius Ahenobarbus, a popular tribune of the plebs, author of the famous statute concerning the election of sacerdotes,[1966] prosecuted M. Junius Silanus for misconduct as consul in 109. The charge was that he had begun war on the Cimbri without an order of the people. Notwithstanding the stigma of defeat borne by the accused, he was acquitted by thirty-three of the thirty-five tribes.[1967] In the same year Domitius prosecuted M. Aemilius Scaurus for having as consul neglected the sacra of the di Penates at Lavinium. The accused was acquitted by the votes of thirty-two tribes.[1968] These prosecutions, together with the plebiscite just mentioned, excited against Domitius an antipathy among the optimates which reveals itself in the sources but which his character hardly deserved.[1969]
Another popular tribune, C. Appuleius Decianus, 98, brought against P. Furius the accusation that in the preceding year the latter as tribune of the plebs had betrayed the people’s cause. Acquitted of that charge, he was accused later in the year by C. Canuleius, another tribune, on the ground that he had impeded the return of Metellus.[1970] In one of the contiones for the trial of this case the citizens would not listen to the defence of the accused but tore him in pieces. In the same year Appuleius prosecuted L. Valerius Flaccus, curule aedile, on what charge is unknown. His own condemnation to exile, more probably by the centuries than by a quaestio, on the ground that in his accusation of Furius he lamented the death of Appuleius Saturninus, his gentilis, is mentioned in an earlier chapter.[1971]
Sulla’s completion of the system of standing courts and his restriction of the tribunician function of prosecution[1972] substantially withdrew all judicial power from the tribal assembly under the presidency of tribunes. The overthrow of the Cornelian constitutional arrangements left the standing courts with jurisdiction unimpaired. Though constitutionally the tribunes by this overthrow regained their right to prosecute, they exercised it rarely and feebly during the remainder of the republic. C. Memmius, tribune of the plebs in 66, brought M. Terentius Varro Lucullus to trial for what he had done long before in his quaestorship at the dictation of Sulla. As the motive was evidently personal, the accused was acquitted.[1973] Early in 58 L. Antistius, tribune of the plebs, in the interest of the optimates threatened to prosecute C. Julius Caesar, who had just retired from his consulship and was on the point of setting out for his provinces. Caesar appealed to the other tribunes, who suspended the prosecution on the ground that the accused was to be necessarily absent in the service of the state.[1974] In the year 44 C. Epidius Marullus and L. Caesetius Flavius, tribunes, instituted proceedings against the man who took the lead in acclaiming Caesar king as he was returning from Alba. The evident displeasure of Caesar at the accusation caused its withdrawal.[1975] In incomplete trials, like those last mentioned, it is seldom possible to determine whether they were to come before the centuries or the tribes.[1976]
II. Aedilician Jurisdiction
Before the Hortensian legislation the curule and plebeian aediles alike had cognizance of usury, stuprum, and violation of the law concerning the limitation of occupation and pasturage of the public lands.[1977] In the period now under consideration, beginning in 287, they continued to exercise the same function besides taking upon themselves some new cases. Aedilician actions for violation of the pasturage clause of the Licinian-Sextian statute took place in 240,[1978] 196,[1979] and 193.[1980] Closely related is the fining of usurers in 192,[1981] and of grain dealers for cornering the market in 189.[1982] In 157 C. Furius Chresimus was prosecuted by a curule aedile for injuring the crops of others by magic, and the case came before the tribes in the Forum. By bringing his farm tools into the assembly and calling them his instruments of magic he induced the citizens to vote his acquittal.[1983]
There are several known cases of criminal lust which fell within the aedilician cognizance. In 227 C. Scantinus Capitolinus during his term of office as tribune or aedile of the plebs was prosecuted by M. Claudius Marcellus, curule aedile, on a charge of attempted paederastia. He called attention to the sanctity of his person; but as the tribunes refused to protect him on that ground, he was condemned by the people.[1984] Most of the known cases of this general character were against women. Several matrons, accused of stuprum by the plebeian aediles of 213 and fined by the comitia tributa, retired into exile.[1985] About the time of the war with Hannibal a charge of incest, based on the fact of intermarriage between close relatives and brought doubtless by an aedile, was judged favorably to the accused by the people.[1986] The curule aedile A. Hostilius Mancinus, 183, brought to trial before the tribal assembly Manilia, a courtesan, who, he alleged, had thrown a stone at him in the night and had wounded him. Manilia, appealing to the tribunes, explained that he was attempting violently to break into her house, when she repulsed him with stones. Thereupon the tribunes decreed that the prosecutor deserved the treatment he had received. They interceded against his action, which accordingly had to be dropped.[1987]
One case of perduellio under aedilician jurisdiction is recorded. In 246 Claudia, sister of that P. Claudius Pulcher who lost his fleet off Drepanum,[1988] was jostled by the crowd as she came from the games. She was heard to say on this occasion that she wondered what would have happened to herself, had her brother not caused the death of so many of the citizens, and to wish that he were again living, to lose another fleet together with the crowd that troubled her. For these words she was brought to trial by the aediles of the plebs, and the people imposed on her a fine of 25,000 heavy asses.[1989] The case is described as a iudicium maiestatis apud populum Romanum.[1990]
The jurisdiction of the aediles as well as that of the tribunes suffered from the growth of standing courts.[1991] The fact that the power remained, provided the holder was in a position to use it, is proved by the occasional recurrence of a prosecution in the lifetime of Cicero. First may be mentioned the proceedings instituted by C. Flavius Fimbria, aedile in 86, against Q. Scaevola. Evidently the case did not come to vote.[1992] Interesting is the threat of Cicero[1993] as curule aedile to bring to trial before the people C. Verres and all who should by bribery aid his acquittal. The circumstance that Cicero was ready to place so great a function upon the aedileship is proof of the confusion into which the ideas of popular jurisdiction had fallen through infrequent use.[1994] Another anomaly is the prosecution begun by P. Clodius against T. Annius Milo on the charge of violence (vis).[1995] It took place in the Forum before the comitia tributa, but we do not know whether it came to a vote.
III. Pontifical Jurisdiction
In the exercise of his disciplinary power the supreme pontiff sometimes imposed a fine on a sacerdos under his authority. An appeal to the thirty-five tribes was allowed, if the amount of the penalty reached the appealable limit.[1996] After the analogy of the civil magistrate the pontiff presided over the assembly during the trial.[1997] In 189 Q. Fabius Pictor, who was at the same time praetor and flamen Quirinalis, was forbidden by the supreme pontiff to go to the province assigned him. After much contention the pontiff imposed a fine, and an appeal was taken to the people, who decided that the flamen must obey the pontifex maximus, and on that condition remitted the fine.[1998] In 180 L. Cornelius Dolabella was fined for refusal to resign his office of naval duumvir that he might be inaugurated rex sacrificulus. The case was decided as the preceding, but an unfavorable omen which dissolved the assembly deterred the pontiffs from inaugurating him.[1999] A similar case occurred in 131.[2000] In the appeal of Claudius, an augur, from a pontifical fine, the date of which is unknown, though it probably followed the trials above mentioned, the people sustained the accused.[2001] These are the few recorded cases of appeal from sacerdotal jurisdiction. The moderation of the pontifex maximus, together with the respect of his sacerdotes for religion, usually served to prevent the need of recourse to the people. It is a noteworthy fact that the custom was practically conterminous with the era of the most highly developed plutocracy. The circumstance that in all the cases known to have fallen within this period the people confirmed the authority of the pontiff affords striking evidence of the perfection to which the optimates had now brought the religious machinery of their political system.[2002]
From what has been said on the judicial functions of the comitia in this and earlier chapters, it is clear that the jurisdiction of the people is inseparably connected with the political and constitutional history of Rome. Beginning feebly in the early republic, the right of appeal was most intensely exercised from the middle of the third to the middle of the second century B.C. Its decline thereafter, owing mainly to the rise of the quaestiones, was a symptom of the general decay of the republic.
Peter, C., Epochen der Verfassungsgesch. der röm. Republik, 118-140 (on the general character of the period); Ihne, W., History of Rome, iv. 125 ff., 171-3, 321-32; Mommsen, Röm. Staatsrecht, ii. 317-27, 491-7; Die Scipionenprocesse, in Röm. Forsch. ii. 417-510; Lange, Röm. Altertümer, ii. 582-93; Herzog, Gesch. u. Syst. der röm. Staatsverfassung, i. 811 f., 1177 f.; Greenidge, A. H. J., Legal Procedure of Cicero’s Time, 327-66; Mispoulet, J. B., Les institutions politiques des Romains, i. 228 f.; Willems, Droit public Romain, 175 ff.; Girard, P. F., Histoire de l’organisation judiciaire des Romains, i. 235 ff.; Hallays, A., Comices à Rome, 70 f.; Stella Maranca, Il tribunato della plebe dalla lex Hortensia alla lex Cornelia; Gerlach, De vita P. Cornelii Scipionis Africani Superioris; P. Cornelius Scipio Africanus der Aeltere und seine Zeit; Nissen, Kritische Untersuchungen über die Quellen der vierten und fünften Dekade des Livius, 213 ff.; Bloch, G., Observations sur le procès des Scipions, in Revue des études anciennes, viii (1906). 93-110, 191-228, 287-322; Pascal, C., Studi Romani, i: Il processo degli Scipioni; ibid. iii: L’Esilio di Scipione Africano Maggiore; Di un studio recente sul processo degli Scipioni, in Riv. d. storia ant. iv (1899). 268-71; Niccolini, G., La questione dei processi degli Scipioni, ibid. iii. fasc. 4 (1898). 28-75; articles in Pauly-Wissowa, Real-Encycl. i. 448-64: Aedilis (Kubitschek); 584-8: M. Aemilius Scaurus (Klebs); iv. 702-5: Comitia, part of (Liebenam); 1462-70: P. Cornelius Scipio Africanus Major (Henze); 1471-83: L. Cornelius Scipio Asiagenus (Münzer); v. 1324-7: Cn. Domitius Ahenobarbus (ibid.); Daremberg et Saglio, Dict. i. 95-100: Aedilis (Humbert); see also ibid. s. Comitia.
XV. COMITIAL LEGISLATION FROM HORTENSIUS TO THE GRACCHI 287-134
I. An Era of Repose
287-232
The Hortensian enactment which raised the plebiscite to an equality with the lex and gave the tribunician initiative full constitutional freedom[2003] seems to have been especially calculated to prepare for a splendid outburst of legislative energy. No such result, however, was actually reached. Circumstances prove the leaders of the plebs to have been well satisfied with the political gains thus far made as regards (1) their place in the senate assured them by the Ovinian statute,[2004] (2) their right to the magistracies, confirmed by various laws, (3) the powers of the tribunate and its relation to the senate established by the Hortensian statute. Content with their position as a branch of the widened nobility, inferior neither politically nor socially to the patrician branch, and happy in the enjoyment of authority, they were now as much inclined as the patricians to discourage and to resist further aggression on the part of the plain citizens. Their control of the initiative in legislation was the chief means of forwarding this policy. Their respect for the senate, in which they were now rapidly becoming the dominant party, was such that they were willing to forego the recently acquired privilege of bringing their rogations before the people without the senatorial sanction. But in case a tribune was so bold and so out of harmony with his political peers as to offer an unsanctioned bill, they could count on the intercession of one of his colleagues; if matters came to an extremity, the senate could annul the act after its adoption by declaring it illegal or contrary to the auspices.[2005] Evidently the plebeian nobles were aware, too, that with the increase in the number of citizens and with their dispersion over Italy the assembly had ceased to represent the citizen body, and was failing in ability to grapple with the new and increasingly complex problems of administration created by the widening of the Roman domain.[2006]
Under these new conditions the assemblies continued, it is true, to elect their annual magistrates and to receive appeals from the judicial decisions of the latter, more rarely to declare war or to ratify a treaty. Occasionally they passed a law to increase the number of magistrates or to regulate elections; but for the fifty-five years following the Hortensian legislation, 287-232, there is no record of the enactment of a distinctly administrative law. The silence of history on this point is due not so much to the exceptionally scant sources[2007] as to a lack of comitial activity.
First among the statutes relating to the election of magistrates is to be placed the Maenian plebiscite, adopted in 287 or thereabout, which directed the patres in case of elections, as the Publilian statute had directed them in case of rogations,[2008] to give their auctoritas before the voting began, while the issue was still uncertain.[2009] Blocking the last efforts of the patricians to monopolize the consulship,[2010] the act completed the reduction of the patrum auctoritas to a formality. The sources represent Appius Claudius Caecus as the chief offender whom this law was designed to rebuke. His personality had brought to the censorship an enormous accretion of power which disturbed the constitutional balance. In this period that magistracy assumed also the function of supervising the morals of the citizens.[2011] To check this disproportionate growth a law, probably tribunician, of 265 forbade reëlection to the office.[2012]
The Romans created no more absolutely new magistratus ordinarii. In 267, however, probably by an act of the comitia tributa, they doubled the number of quaestors—from four to eight—in order that the new members of the college might attend to the financial business of the government at various points in Italy.[2013] A second praetor was created in 242,[2014] doubtless by a law, not only for jurisdiction inter peregrinos but also for increasing the number of magistrates available for military commands.[2015] The tresviri capitales, instituted in 289,[2016] were given the rank of magistrate by a plebiscite of L. Papirius, adopted after 242, which directed the urban praetor to elect these officials in the comitia tributa.[2017] In 241 the people, probably in tribal assembly, granted to L. Caecilius Metellus on account of his blindness the privilege of riding to the Curia in a carriage.[2018]
One statute referred to this period[2019] belongs to the domain of private law. The first chapter of the tribunician lex Aquilia provided “that if a slave of another man, or a quadruped of his cattle, be unlawfully slain, whatever within a year is the highest value thereof, that amount the offender shall pay to the owner.”[2020] The second chapter secured the principal stipulator against adstipulators, and the third provided for all other kinds of damage.[2021] It superseded all previous statutes on the subject, including that of the Twelve Tables.
II. The Flaminian Era[2022]
232-201
Such is the scant list of legislative acts of the half century following the dictatorship of Hortensius (287-232), none of them as innovating as, for instance, the reform of the comitia centuriata brought about in approximately the same period by the power of the censors alone.[2023] The nobles had a certain degree of reason for feeling secure in their control of the administration. But in this respect they miscalculated. The long war with Carthage, which had diverted the attention of all the citizens from politics, ended without bringing in the wake of victory the usual rewards to the masses. No lands in Sicily were assigned to the citizens, while on their northeastern border the Picene district and the territory recently taken from the Gauls in the neighborhood of Ariminum were reserved by the nobles for their own occupation. Popular discontent at these short-sighted, selfish proceedings found expression in the rogation of C. Flaminius, tribune of the plebs in 232, for the assignment of the lands here mentioned to the citizens who were willing to settle on the frontier.[2024] It was vehemently opposed by the nobility,[2025] and was finally passed without the authorization of a senatus consultum.[2026] From a statement of Cicero[2027] that as long afterward as 228 Q. Fabius Maximus, then consul a second time, was hindering Flaminius from dividing the land, we may infer that the author of the law was elected among the tresviri charged with its administration.[2028] Most of the settlers in that region were assigned to the tribe Velina, probably in pursuance of an article of the Flaminian statute.[2029] The enactment came as a disagreeable interruption to the quiet happiness of the nobles—as a sign that the political battle fought out between comitia and senate in the period ending with the Hortensian legislation was to be renewed with perhaps even greater bitterness. Hence Polybius, echoing the complaints of the nobles, denounces the measure as the first step toward the demoralization of the people.[2030] The lasting hatred felt by the senators for this new and powerful enemy is seen in their refusal to grant him a triumph for military successes he had won as consul in 223. A plebiscite without their authorization gave the desired privilege to the champion of popular rights.[2031] It was probably in this connection—at least we are soon to hear of it for the first time—that an act of the people was made essential to a triumph within the city. Henceforth even when the senate was willing to allow a triumph or an ovation, the person thus honored could not hold imperium in the city on the day of such festival excepting by a comitial lex. Usually in cases of the kind the senate, after voting the privilege, instructed a praetor to request one of the tribunes to bring a rogatio de imperio before the tribes.[2032] The earliest known act of the kind is the plebiscite of 211 which granted the imperium to M. Marcellus, proconsul on the day of his ovation.[2033]
The popular party had not long to wait for an opportunity to retaliate upon the senate for the slight it had offered their champion. On the precedent of the Ovinian law[2034] the people had a right to legislate concerning the honors, privileges, and qualifications of its individual members.[2035] In 219 accordingly the plebiscite of Q. Claudius, known to have been supported in the senate by C. Flaminius alone, who was then censor, prohibited senators and their sons from owning sea-going ships of more than three hundred amphoras capacity.[2036] It was probably an article of this statute which forbade the same class of persons to take contracts from the government, with the reservation of such economically insignificant agreements as concerned worship.[2037] The peasants, whose interests Flaminius represented, opposed the renewal of the war with Carthage, regarding it as a means of extending the field of commerce and speculation of the nobles. This law therefore expresses the determination of the country people that the senatorial families should no longer share the advantages of such wars. From the point of view of the statesman it was the first step toward the separation of the governing class from the commercial class, with a view to guarding against the administration of the government in the sole interest of capital. The result was not all that could be desired; the senatorial families found secret ways of placing a great part of their funds in commercial companies; and in so far as the law was actually effective, it compelled senators to invest money in Italian land[2038]—a proceeding which contributed largely to the economic ruin of the peninsula.
In the administration of finance, which in spite of occasional interference on the part of the comitia remained with the senate, is included the regulation of coinage. The comitia passed few acts relating to the subject. The earliest known to history is the misnamed lex minus solvendi of C. Flaminius, consul in 217, which introduced the uncial standard for the as, making for ordinary use sixteen asses of an ounce weight equivalent to ten old—in other words, to the denarius.[2039] In the payment of soldiers, however, the denarius was still reckoned at ten asses.[2040] Probably the same law regulated the issue of plated silver denarii[2041] and of gold coins.[2042] The debtor’s gain was offset by the actual decrease in the weight of the as to a little more than an ounce before the enactment of the law.[2043] This measure was followed the next year by the plebiscite of M. Minucius, which created the triumviri mensarii, a banking commission for relieving the great lack of money (216).[2044] The board managed some of the financial business of the state,[2045] and undoubtedly did what it could to strengthen private credit, which at this time was at a low ebb.[2046] The next step taken by the comitia was the enactment of a plebiscite within a field properly belonging to the censors under senatorial supervision—the building and repair of public works.[2047] In 212 the act of an unknown tribune, carried through the comitia with the consent of the senate, created three temporary administrative boards—quinqueviri for repairing the defences of the city, triumviri to seek for property belonging to the temples and to register gifts, and another board of three for repairing the temples of Fortune, Mater Matuta, and Hope. These officials were to be elected by the tribes under the chairmanship of the urban praetor.[2048] Nearly related is the plebiscite of 210, which in pursuance of a senatus consultum directed the censors to farm the vectigalia of the Campanian territory.[2049] Evidently in the trying time of the war with Hannibal the senate found it advisable to conciliate the citizens by voluntarily bringing a few administrative measures of the kind before it. All this legislation was due more or less directly to the influence of Flaminius. A succession of sumptuary laws may be likewise traced to his second consulship, 217. The Twelve Tables contained a number of laws relating to funerals, designed to preserve good order and to prevent extravagant expense.[2050] After their ratification the authority of the magistrates and especially of the censors sufficed for the maintenance of good conduct, till in the period of the Punic wars the character of the people began to suffer deterioration, whereupon the assemblies undertook to enact new laws for the enforcement of morality. One of the earliest was the lex alearia, which prohibited the game of dice. Its mention by Plautus makes it prior to 204.[2051] The name of the author is not given; and for that reason we cannot be sure that it was a comitial law.[2052] To the same period belongs the plebiscite of P. and M. Silius concerning weights and measures.[2053] The first comitial sumptuary statute is the lex Metilia (217), probably tribunician, passed under the influence of C. Flaminius and L. Aemilius, who were censors in 220. It prescribed certain rules for the preparation of cloth.[2054] The object, in Lange’s[2055] opinion, was to strike at the luxury of the nobles through the guild of fullers. It was a warning to them, he asserts, which however they failed to heed. If this was indeed the object, the means were surprisingly feeble. The next sumptuary law was the plebiscite of C. Oppius, 215, directed against the luxury of wealthy women. It forbade a woman to wear more than a half ounce of gold or a dress of various colors or to ride in a carriage in a city or town or within a mile of either, excepting when engaged in public worship.[2056] The author must have sympathized with the tendency of Flaminius, and the law was supported, or at least not opposed, by the nobility. Twenty years afterward their best representatives strove in vain to maintain it against the rising tide of wealth and luxury.[2057]
The influence of Flaminius on legislation may be traced still farther. Under the economic distress of the war with Hannibal the plebs began to lapse into clientage to the nobles. In spite of the principle that the patron should accept no honorarium for legal service,[2058] the nobles began by the requisition of gifts to render the commons tributary to themselves.[2059] The chief occasion for these exactions was found in the Saturnalia, which was reconstituted in 217.[2060] To check the abuse the Publician plebiscite mentioned by Macrobius,[2061] undoubtedly of C. Publicius Bibulus, the popular tribune of 209,[2062] prohibited all gifts from the poor to the rich on that festival with the exception of wax candles. It was supplemented in 204 by the plebiscite of M. Cincius Alimentus,[2063] which absolutely forbade gifts and fees for legal service.[2064] The prohibition of a magistrate’s acceptance of gifts for the performance of official duty was undoubtedly included in it.[2065] Moreover it forbade all gifts above a specified amount, but with exceptions in favor of various relatives and benefactors.[2066]
It is not unlikely that the Flaminian age saw the earliest comitial legislation governing judicial procedure in private cases.[2067] Some changes were wrought, too, in family law by popular vote. In early time intermarriage between persons of the sixth degree of kinship was forbidden by usage;[2068] but in the period between the first and second Punic wars the right was extended to relatives of the fifth and sixth degrees,[2069] and shortly afterward to those of the fourth degree (consobrini).[2070] Another law, the lex Atilia, enacted between 242 and 186,[2071] probably in the second Punic war,[2072] directed the urban praetor to appoint a tutor for a woman or child who was left without a natural protector.[2073] It now became possible, too, for a magistrate under justifying circumstances to place a young man under twenty-five in the care of a curator, in accordance with the Plaetorian law,[2074] which was enacted before 192,[2075] and which belongs therefore to the Flaminian age.[2076]
In the same period we find the comitia active in other fields. In 215 a tribal law of an unknown author granted the citizenship to three hundred Campanian knights who had remained faithful to Rome, and assigned them to the municipium of Cumae.[2077] Following a precedent set by the Antistian plebiscite of 319,[2078] L. Atilius, tribune of the plebs in 210, carried a law, in pursuance of a senatus consultum, for granting the senate absolute power over the Campanians who had revolted;[2079] and the senate accordingly not only punished them with loss of citizenship but reduced them to miserable subjection.[2080] The right of the comitia to ratify a vow of a sacred spring was recognized in 217 by an opinion rendered by the pontiffs,[2081] and was first exercised through a plebiscite of that year.[2082] The appointment of commissioners for the dedication of temples also belonged to the assembly,[2083] as well as the regulation of religious festivals.[2084] The greatest gain made by the people within the province of religious legislation in the third century B.C. was the provision for electing the pontifex maximus by seventeen tribes drawn by lot from the whole number thirty-five and presided over by a pontiff. This innovation probably belongs to the Flaminian era and certainly to the time before 212, when the first instance of such an election is given.[2085] The act was followed by another, before 209, which authorized the election of the chief curio in the same way.[2086] The object was to take the control of these places from the nobles, who looked upon the great sacerdotal collegia as a main support of their political power.[2087] It was but the beginning of a movement for transferring the appointment of all members of these collegia to the comitia sacerdotum, made up as above described. In the peculiar composition of assemblies of this character we see an attempt to make the gods in some degree coadjutors of the populace in filling the sacred places.[2088]
The assembly was merely exercising a long-recognized right[2089] in the institution of two new praetors in 227, for which we are warranted in assuming a legislative act.[2090] The same observation applies to the increase in the number of elective military tribunes from sixteen to twenty-four in 207,[2091] which was evidently a concession to the commons. As the senate generally attended to the prolongation of the imperium,[2092] the confirmation of a senatorial decree to that effect by an act of the people in 208[2093] was exceptional. Far more radical was the plebiscite of M. Metilius, 217, for equalizing the power of the dictator with that of the master of horse.[2094] This act and the resort to election for filling the office[2095] destroyed the value of the institution.[2096] A violent departure from usage was attempted in 209 by the rogation of C. Publicius Bibulus, tribune of the plebs, for abrogating the proconsular imperium of M. Claudius Marcellus. On this occasion not merely the plebs but all classes attended the assembly, which by an overwhelming vote rejected the proposition.[2097] Three quarters of a century were to pass before a law of the kind could actually carry.[2098]
A plebiscite known to have been in force in the time of the second Punic war[2099] debarred from the tribunate and aedileship of the plebs any person during the lifetime of a father or grandfather who had filled a curule office. As the aim was to free the plebeian officials from the influence of the nobility, exercised through the patria potestas, that they might be in a better position to serve the interests of their constituents, we may reasonably suppose this measure to have passed in the time of Flaminius and under his influence. The tendency was to widen the breach then forming between the nobility and the commons.[2100] The right of the people to dispense from the law was acknowledged by the senate in 217, when, after the destruction of the army at Trasimene and the death of Flaminius, the patres authorized a plebiscite for dispensing the consulars for the remainder of the war from the Genucian plebiscite which forbade reëlection to the same office excepting after an interval of ten years.[2101]
From what has been given above it is clear that Flaminius began a new era in legislation, by no change in the constitution, but rather by assuming the free initiative granted the tribunes of the plebs through the Hortensian statute. Under the influence of his personality the comitia recovered the share in the administration which they had lost in the half century of lethargy just passed, and even made new inroads into the province of magisterial and senatorial authority. While the disaster at Cannae, following hard upon that of Trasimene, subdued the rising spirit of popular independence, it made the senate more conciliatory,[2102] with the result that neither did the comitia lapse into its former repose nor did the nobles lose their hold on the government. It was to this era, more definitely to the opening of the war with Hannibal, that the description of the constitution by Polybius[2103] applies. The political condition of Rome was improving,[2104] or was just at its zenith.[2105] As the senate was at the height of its power, public measures were deliberated upon, not by the many, but by the best men.[2106] Political life was sound, elections were pure, and a scrupulous fear of the gods remained the strongest support of the commonwealth.[2107] At this epoch the three chief constitutional elements—magistrates, senate, and comitia—were so perfectly balanced that even a native would hardly be able to say whether the form of government was monarchy, aristocracy, or democracy.[2108] In this equilibrium of forces, in this mutual power of checking or strengthening, lay the might and the excellence of the constitution.[2109]
It is solely with the place of the assemblies in this system that we are at present concerned. Inasmuch as the consuls were supreme masters of the home administration, as well as of the actual conduct of war,[2110] and as the senate controlled finance, diplomacy, and all interstate judicial business affecting the Italian allies,[2111] what part in the government could have been left to the people? Polybius answers a most weighty part. They are constitutionally the sole fountain of honor and punishment, by which alone governments and societies are held together. Not only are they in a position to discriminate between the fit and the unfit in elections to office, but they are the sole court for trying cases involving life and death. The death penalty, however, may be avoided by voluntary exile, if undertaken before a majority has been reached in the process of voting.[2112] Even finable actions in which the proposed penalty is considerable, especially when the accused has held a higher magistracy, come before them. It is they who bestow offices on the deserving—the most honorable reward which the constitution grants to virtue. It is they who have absolute power to decide concerning the adoption or repeal of laws; and most important of all, it is they who deliberate concerning war and peace, and who ratify or reject proposals for alliances, truces, and treaties.[2113] These facts might lead one to suppose that the supreme power is with the people and that the government is a democracy.[2114] In the domestic administration the consuls are dependent on them for authorizing various kinds of business and are under obligations to execute their decrees.[2115] In war, however distant from home, the consul must still court their favor, to secure their ratification of his arrangements for peace; and on laying down his office he is liable to prosecution before them for maladministration.[2116] Hence he can afford to neglect them no more than he can the senate.[2117]
The senate, too, is dependent upon the people for ratifying all serious penalties imposed by the courts, which are made up of senators.[2118] Similarly in matters directly concerning that body, the people have power to accept or reject proposals for diminishing its traditional authority, for depriving its members of dignities or offices, or even for lessening their means of livelihood.[2119] But the greatest popular restriction upon its authority is the tribunician veto, which can prevent it from passing a decree or even from holding a meeting. As the tribunes are under obligations to carry into effect the decisions of the people and in every way to have regard for their wishes,—for this and for the other reasons mentioned, the senate respects the people and cannot fail to neglect their feelings.[2120]
From the foregoing remarks of Polybius it is clear that in the political theory of his time the will of the multitude when expressed by a comitial act prevailed, in other words that the people were sovereign. Several checks on their action from the side of the senate and magistrates he mentions, especially the absolute power of life and death exercised by the consuls in war over those under their command,[2121] and the control over the citizens wielded by the senate through the management of public contracts and through filling the courts from its own number. But the most important limitation, implied throughout this discussion though never expressly mentioned, is the lack of popular initiative. The people could convene for no business whatever unless summoned by a magistrate. They could consider no other subject than that proposed to them by the president; they could take no part in the deliberation excepting in so far as the president granted permission to individuals; they could merely vote yes or no on the question presented to them.[2122] Notwithstanding the theory of popular sovereignty these conditions prevented the rise of a real democracy; they placed the assemblies under the control of the magistrates, who as a rule, including even the tribunes, were willing ministers of the senate. The bridled masses were rendered more obedient by the disasters of the war with Hannibal, and the nobles were soon to grow arrogant and violent through a surfeit of wealth and power.[2123] Under these new circumstances the docility of the commons made possible the thorough organization of plutocracy on the basis of a democratic theory of government.
III. The Era of the Completed Plutocracy, based on a Recognition of Popular Sovereignty
201-134
The period from the close of the war with Hannibal to the tribunate of Ti. Gracchus is marked by no such display of comitial energy as that which characterized either the pre-Hortensian age or the epoch introduced by Flaminius. In return for a spurious freedom and a pretended share in the administration the assembly became the handmaid of the plutocracy.
There was, as usual, some legislation of the old kind concerning magistrates. In 198 the number of praetors was increased to six.[2124] The arrangement was modified by the consular statute of M. Baebius, 181, which provided for the election of four and six on alternate years,[2125] with the object of giving the governors of the Spains a biennial term.[2126] The greedy office-seekers by another statute brought about the repeal of this arrangement in 179.[2127] The only new office was that of the tresviri epulones, instituted by a plebiscite of C. Licinius Lucullus, 196. Their function was to attend to certain religious festivals, especially to the feast of Jupiter held on November 13. The law provided that these officials should wear the toga praetexta just as did the pontiffs.[2128]
A stage in the development of the plutocracy and of its control over the plebeian tribunate is marked by the enactment of the lex annalis of L. Villius, tribune of the plebs in 180. This statute not only fixed the ages at which men might sue for and hold the various patrician magistracies,[2129] but also, developing a custom already in existence, established an interval, evidently of two years,[2130] between consecutive magistracies. The stated object was to curb the greed for office which the young nobles were manifesting[2131] as well as the eagerness of the people to favor such ambitious persons, and for that reason it received the support of Cato.[2132] While it prevented the Scipios and the Flaminini from creating a dynastic oligarchy, by checking the growth of exceptional talent and by subjecting statesmen to a fixed routine of honors and functions it subordinated the individual to the class, and in this way aided the consolidation of the senatorial plutocracy.[2133] To the same period, at all events after 194,[2134] belong the Licinian and Aebutian plebiscites, which prohibited the presiding magistrate from offering as candidates for any extraordinary office himself, his colleagues, and his relations by blood or marriage. This measure, too, was to prevent the formation of governing cliques and dynasties. In 151, the year after the third consulship of M. Claudius Marcellus,[2135] to check the further aggrandizement of this man as well as the rise of similar personalities, a law, supported by Cato,[2136] absolutely forbade reëlection to the consulship.[2137] Cato’s idea may have been to expedite the advancement of novi homines; but so far from accomplishing this object, the measure contributed to the further subordination of the individual to the plutocratic machine.[2138] It may well have been in the same partisan spirit rather than in the interest of political morality that P. Cornelius and M. Baebius Tamphilus, consuls in 181, carried a law ex auctoritate senatus for the prosecution of bribery. It disqualified for office for ten years any person found guilty of influencing an election through bribery or other illegal means.[2139] Probably through this measure the nobles aimed to curb the greed of office in the more ambitious and unscrupulous of their number; but it accomplished nothing, and was followed in 159 by another consular lex de ambitu of Cn. Cornelius Dolabella and M. Fulvius Nobilior, which increased the penalty to death.[2140] Practically the punishment was exile. This law had no more effect than the earlier; and the conduct of the nobles both before and after its enactment proves that they did not intend by it to open the consulship to the competition of novi homines.
The limitation upon the judicial imperium of magistrates and promagistrates by the three Porcian laws of appeal, which belong to this period, has been considered in connection with popular jurisdiction.[2141] The last of these acts affected the administration of the provinces and of military affairs, which belonged originally to the magistrates and the senate. It was only by degrees that the people interfered in this department. The earliest known act of the kind was the consular lex de sumptu provinciali of M. Porcius Cato, 195, for limiting the expenses of provincials in the support and honor of the governor.[2142] To prevent conflicts in the provinces between the incoming and the retiring governor, Cato favored a regulation, adopted probably in 177, whether a lex or a senatus consultum has not been determined, to the effect that the imperium of the outgoing functionary should cease on the arrival of the new.[2143] It was still more unusual for the people to take part in the organization of a new province; but in 146 a lex Livia, probably tribunician, commissioned P. Scipio Aemilianus, assisted by ten legati, to organize the province of Africa.[2144]
In foreign affairs the assemblies took the same part as in the preceding period; the centuries continued to declare war and the tribes to ratify peace. In 196 the tribunician lex Marcia Atinia compelled the consuls against their will to conclude a treaty with Macedon.[2145] In 149 L. Scribonius Libo, tribune of the plebs, attempted in vain to secure the adoption of a rogation for restoring liberty to the Lusitanians, whom the praetor Servius Galba had treacherously enslaved.[2146] No less characteristic of the age is the consular lex of L. Furius and Ser. Atilius, 136, for surrendering C. Mancinus to the Numantines because without the consent of the senate he had made an unfavorable treaty with them.[2147] The deterioration in the character of Roman generalship and warfare is indicated by a statute of unknown authorship, enacted after 180,[2148] which forbade a triumph to a commander who had not killed at least five thousand of the enemy in a single battle.[2149] The intention of the law, however, which obviously was to prevent commanders from triumphing for fictitious or insignificant victories, was circumvented by falsifications regarding the number of enemies slain or by triumphs on the Alban Mount.[2150]
Whereas before the second century B.C. no mention is made of a comitial act for the founding of a colony, in the beginning of the period now under consideration the function was exercised by the people three or four times in quick succession. In 197 was enacted the tribunician statute of C. Atinius for planting five colonies—Vulturnum, Liternum, Puteoli, Salernum, and Buxentum—on the coast of Italy, each to consist of three hundred families, the execution of the measure to be in the hands of triumviri, who were to hold their office three years.[2151] Not long afterward a plebiscite of Q. Aelius Tubero provided for founding two Latin colonies, one in Bruttium, the other at Thurii, each by triumviri, who likewise held office three years. The measure was authorized by a senatus consultum, 194.[2152] In the same year a tribunician law of M. Baebius Tamphilus provided for the establishment of three Roman colonies.[2153] Mention of colonial legislation by the people then ceases. Although the phenomenon may be due in some cases to the sources, this explanation does not generally hold good, especially as the colonization of the years 189[2154] and 184[2155] is expressly attributed to the senate, and because Velleius[2156] credits that body with the founding of all the colonies from the Gallic conflagration to his own time. Probably before the Gracchi a senatorial decree was issued in every case, and though the commissioners for conducting colonies were as a rule elected by the tribes after 296,[2157] the people were given but a taste of power within this administrative field.[2158]
Early in the second century B.C. we find creditors rioting in usury, unchecked by the various statutes which had been enacted against the evil. They discovered a way of circumventing the law by transferring their securities to citizens of an allied state, who had a right to force the collection of debts under the law of their own community. To put a stop to this kind of fraud the senate decreed that after a stated date allies who lent money to Roman citizens should register the transaction, and that in suits for the collection of such money the debtor should have the privilege of choosing under which law, whether that of Rome or of the allied community, the suit against him should be tried. As the registers provided for the purpose showed that an enormous amount of fraud was still being committed in circumvention of the law and of the senatorial act, M. Sempronius, tribune of the plebs in 193, ex auctoritate patrum proposed and carried a statute which ordered that money lent between a Roman citizen and one of a Latin or other allied state should be collected under Roman law.[2159] This is one of the earliest instances of unfairness introduced by Rome into the private relations between her citizens and those of her allies.[2160]
Family law underwent some modification. A plebiscite of Q. Voconius Saxa, 169,[2161] provided that no citizen assessed at a hundred thousand asses or more should will his property to a woman.[2162] Another article limited to a half of the estate the amount which any legatee, male or female, could receive.[2163] Dowries were regulated by a lex Maenia, which seems to belong to 186.[2164]
In the bestowal of the citizenship the people were unhampered. Doubtless for some time after the Hortensian legislation comitial acts for this purpose were commonly authorized by senatus consulta; but in the year 188 we first hear the enunciation of the principle that the people without the authority of the senate had the power to bestow the ius suffragii on whomsoever they pleased.[2165] The principle was carried into immediate effect by the tribunician statute of C. Valerius Tappo, which without a senatus consultum conferred the right of suffrage on the Formiani, Fundani, and Arpinates, who hitherto had been cives sine suffragio. The determination of the tribe to which new citizens should belong was also provided for by the legislative act of admission.[2166] The citizenship granted in this period continued occasionally to be limited. The Campanians, excluded forever from the rights of the state in 210,[2167] were in 188 placed under the census by a senatus consultum of the preceding year and were given intermarriage probably by a similar act.[2168] In early time, at least before 184, the custom arose of granting to the founders of a colony the right to enroll as citizens a specified number of aliens. The first recorded instance belongs to the year mentioned, in which the poet Ennius received the citizenship in accordance with such a law.[2169] It was by the pretorian comitia tributa that the priestesses of Ceres, who were Greeks from Naples, Velia, or Sicily, were admitted to the citizenship.[2170] Perhaps by the same assembly, at all events by an act of the people, a slave who deserved well of the state was given his liberty, which involved citizenship.[2171] Such grants to single individuals by the people, however, must have been rare.[2172] A Roman taken captive in war, recovered all his rights simply by returning home (postliminium).[2173] But even when an entire community was brought into the state by a single vote, the wording of the law indicates that the inhabitants received the honor as individuals and not in mass.[2174] It was permissible for independent communities and individuals to reject the offer of the franchise,[2175] whereas subjects and partial citizens were compelled to accept it.[2176] From the facts here stated it will immediately appear that after the people had acquired an unconditioned right to extend the Roman franchise, they made little use of the opportunity. The senate could well afford to concede to them a power which they cherished a growing disinclination to use. The expansion of the empire had at length so enhanced the value of citizenship that the masses were unwilling except on the rarest occasions to share its advantages with others.[2177] Any attempt, therefore, on the part of aliens to usurp the rights of the city was resented. In 187 we find the senate appointing the praetor Q. Terentius Culleo extraordinary commissioner for determining by investigation who from the Latin towns had recently usurped the citizenship, and for expelling from Rome those found guilty of the offence.[2178] Soon afterward the people extended their power over such cases; in 177 a second expulsion of the Latins was brought about by a consular law of C. Claudius Pulcher.[2179]
The same spirit prompted the citizens to limit the political rights of freedmen. There can be no doubt that early Rome was as liberal in the treatment of this class as of aliens. From earliest times they had a right to acquire land; and such proprietors were undoubtedly enrolled in the tribes in which their estates were situated.[2180] From the beginning, however, custom deprived them of the ius honorum[2181] and of conubium. The former they acquired along with the other plebeians, although they were less readily admitted to the actual enjoyment of it;[2182] the latter they continued to lack.[2183] They were exempt, too, from ordinary military service.[2184] In time their condition became worse. C. Flaminius as censor in 220, in the interest of the rural plebs,[2185] began arbitrarily to assign all the libertini, whether they had lands or not, to the four city tribes,[2186] doubtless at the same time to the supernumerary centuries of the comitia centuriata.[2187] But the sons of freedmen, themselves originally libertini,[2188] came in time to be looked upon as ingenui, with the same legal rights as the old citizens. This change seems to have been effected by the plebiscite of Q. Terentius Culleo, 189, for compelling the censors to admit to the senate the sons of free parents—undoubtedly those sons of libertini who were born after the emancipation of the father.[2189] The law must have involved the principle of treating such persons as citizens optimo iure, and have therefore required their enrolment in the country tribes, provided they owned land. As the acquisition of full rights came only with the death of the father, which made the son sui iuris, the application of the principle must have required the enrolment of the fathers along with the sons in the rural tribes; in other words, it recognized as citizens optimo iure those libertini who had children,[2190] on the basis of the existing custom of enlisting such persons in military service at crises.[2191] The political connections of the author of this statute leads us to interpret it as a measure of the oligarchs for strengthening their position by the votes of their dependents.[2192]
The increasing wealth and luxury of the age naturally gave rise to sumptuary legislation; and the nobility could allow the comitia to revel in this field, devoid as it was of political significance. The first act, however, was to undo the Oppian law of 215[2193] through the plebiscite of M. Valerius, 195, enacted probably without a senatus consultum.[2194] It was the senate which initiated the tribunician statute of C. Orchius, 181, for limiting the number of guests at banquets.[2195] Cato opposed the enactment of this measure on the ground that it was too easy,[2196] but twenty years afterward he protected it from abolition.[2197] It was reinforced in 161 by the lex cibaria of the consul C. Fannius Strabo, which prescribed that ordinary meals should cost no more than ten asses; on ten days of the month meals should cost no more than thirty; and on the days of the ludi plebeii, Saturnalia, and certain other great festivals, no more than a hundred.[2198] It also forbade the use of fowls excepting one unfattened hen.[2199] The lex Didia cibaria, pretorian or tribunician, 143, extended the application of the Fannian statute to all Italy, and rendered liable to punishment not only the host who violated the law but also the guests at such illegal repasts.[2200]
Closely akin to sumptuary laws are those for the regulation of theatres and games. A plebiscite of Cn. Aufidius of unknown date, possibly 170,[2201] permitted the importation of wild beasts from Africa for use in the circensian games. The statute repealed a senatus consultum which had prohibited such importation.[2202] The arrangement of the social classes in the theatre and at the games was determined partly by law. It was the censors of 194, persuaded by Scipio Africanus the Elder,[2203] who reserved the front seats for senators.[2204] The assignment of fourteen rows to the knights next to those of the senators was effected by a plebiscite, possibly of 146, the author of which is unknown.[2205]
For a long time the laws of the Twelve Tables administered by the magistrates, more rarely by a special court created sometimes by the senate but oftener and in better right during this period by the people,[2206] sufficed for controlling crime. But as offences multiplied in consequence of the increasing complexity of life, the people were called upon more and more frequently to legislate on the subject.[2207] One of the earliest may have been the lex Fabia de plagiariis,[2208] against the usurpation of ownership over a Roman citizen without his consent or over his slave without the consent of the owner.[2209] The date of its origin is unknown; but if Plautus[2210] refers to it, as Voigt asserts,[2211] it must have been in force before 197. For this and other reasons Voigt assigns it to Q. Fabius Verrucossus, consul in 209.[2212] Lange prefers Q. Fabius Labeo, consul in 183,[2213] whereas Mommsen places it after the Social war.[2214] A lex Gabinia threatened with scourging and death any one who induced the people to gather in secret meetings. It seems to belong to the time of the Bacchanalian trouble, 186,[2215] and to have been designed against religious associations of the kind; nevertheless the nobility found in it a means of repressing popular agitation.
On the authority of a mutilated passage in the newly found epitome of Livy an attempt has been made to assign to 149 the law of M. Scantinius (or Scatinius), probably tribune of the plebs, for imposing a fine of ten thousand sesterces on any one convicted of violating a man of free birth.[2216]
The statute which established the first standing court—quaestio perpetua—was the lex Calpurnia de repetundis of the tribune L. Calpurnius Piso Frugi, 149.[2217] His motive was undoubtedly a sincere desire to protect Italy[2218] and the provinces from official rapacity. The court was made up of a considerable number of jurors drawn from the senate and presided over by a praetor, who had hitherto exercised civil jurisdiction only. In fact a trial for extortion was at first thought of as a civil suit for the recovery of wealth illegally taken—a conception which determined the organization of the Calpurnian quaestio. But from time to time new standing courts were instituted each with cognizance of a specified class of crimes, till before the end of the republic they had taken upon themselves practically all criminal jurisdiction, retaining little trace of their civil origin.[2219] Between 149 and 141, for instance, was established a standing quaestio for the trial of cases of murder.[2220]
It was in keeping with the oligarchic tendency of the age that a consular law of M’. Acilius Glabrio, 191, gave the pontiffs the function of determining which years should be intercalary and of how many days such years should consist. Thus these functionaries secured the means of bringing the solar and civil years into accord; but they used their new power mostly in the interests of their party, with the result that the confusion in the calendar increased rather than lessened.[2221] The nobles made their greatest gain in the control of legislation and of elections about the middle of the century through the statutes of Aelius and Fufius, probably tribunes of the plebs. By granting the patrician magistrates the obnuntiatio against the tribunes, or perhaps by confirming the former in a usurped power of the kind, it enabled the nobles to exercise a practical veto on tribunician legislation, and may for that reason be looked upon as the firmest support of the plutocracy.[2222] An article of the statute forbade the bringing of a rogation before the people in the interval between the announcement and the holding of elective comitia.[2223]
Toward the close of the period a democratic movement preliminary to the revolution began with the enactment of two important ballot laws. The first was the plebiscite of Q. Gabinius, 139, whom the optimates took pleasure in representing as ignoble and mean.[2224] It introduced the ballot in elections with a view to freeing the voter from the influence of the nobility; for many of the poor were at this time falling into economic, and hence political, dependence on the rich.[2225] The other was the plebiscite of L. Cassius Longinus Ravilla, 137, for extending the use of the ballot to all trials before the people with the exception of perduellio.[2226] Cases coming under the law were those which involved fines imposed by the tribes under aedilician or tribunician presidency. Probably in the opinion of the author, a conscientious noble,[2227] cases of perduellio were too rare to need the change or too solemn to admit of a disturbance of traditional usage. These measures had little immediate effect, for the nobles were as clever as the commons at exploiting the secret ballot for partisan objects[2228]; yet the principle, when carried to completion by the supplementary laws on the subject in the years immediately following, contributed greatly to the success of the revolution.[2229] Not without significance for the general trend of affairs is the circumstance that in these latter years of the completed plutocracy two dispensations were granted P. Scipio Aemilianus from laws which had been designed to secure it against the rise of great personalities. In 148 when he offered himself for the aedileship, being still too young for the consulship,[2230] the people insisted on electing him to the latter office. “When the consuls showed them the law they became more importunate and urged all the more, exclaiming that by the laws handed down from Tullius and Romulus the people were judges of the elections, and of the laws pertaining thereto they could set aside or confirm whichever they pleased.[2231] Finally one of the tribunes of the people declared that he would take from the consuls the power of holding an election unless they yielded to the people in this matter. Then the senate allowed the tribunes to repeal this law and after one year they reënacted it.”[2232] From this event it can be seen that when the tribunes and people were unitedly determined upon a measure, they were irresistible. It is evident, too, that in popular theory no laws could prevent the citizens from having the magistrates whom they chose to elect. Again in 135 a plebiscite, authorized by a senatus consultum, granted more speedily on this occasion though doubtless with as great regret, exempted him from the law which absolutely forbade reëlection to the consulship.[2233] It was equally ominous that in the preceding year the proconsulship of M. Aemilius Lepidus was abrogated, probably by an act of the comitia.[2234]
Another premonition of the revolution was the renewal of agrarian agitation, with which in a varying degree some of the more enlightened nobles sympathized. It began slowly to dawn upon them that the economic ruin of the peasant class was endangering the state—a feeling which found expression in the agrarian rogation of C. Laelius, praetor in 145.[2235] The measure must have been similar to the Licinian-Sextian law as it threatened the interests of the rich.[2236] When he saw that their opposition would be such as to disturb the public peace, he dropped the proposal. If he was in truth called Sapiens because of this speedy retreat, the epithet was too easily earned. Reform, while there was yet time, was blocked as much by the cowardice of the well-minded as by the enormous selfishness of the majority of nobles. It was in this time of extraordinary imperial prosperity that, in the opinion of Polybius, the constitution was successfully put to its severest test. “When these external alarms are past, and the people are enjoying their good fortune and the fruits of their victories, and, as usually happens, growing corrupted by flattery and sloth, show a tendency to violence and arrogance—it is in these circumstances more than ever that the constitution is seen to possess within itself the power of correcting abuses. For when any one of the three classes becomes puffed up, and manifests an inclination to be contentious and unduly encroaching, the mutual interdependence of all the three, and the possibility of the pretensions of any one’s being curbed and thwarted by the others, must plainly check this tendency; and so the proper equilibrium is maintained by the impulsiveness of the one part’s being checked by its fear of the other.”[2237] These words, which we may suppose to have been written after the tribunate of Ti. Gracchus,[2238] accurately describe the interplay of constitutional forces in the period of the completed plutocracy and of the incipient revolution. Controlled in some instances by self-satisfaction and the spirit of repose and in others by greed and arrogance, the dominant institutions of government tended in the one case to sluggishness and decay, in the other to violence; whereas the harmony of the constitution, or its equivalent the soundness of Roman character, like a central sun, held the various institutions in the main to their respective orbits, compelling each to attend to its appropriate function. No retrospect of the Gracchan troubles induced the great historian to revise the view here expressed; for with his boundless faith in Rome he could never doubt that her constitution contained the cure of every evil which new conditions should breed within the state.[2239]
Schulze, C. F., Volksversammlungen der Römer, 100-10; Peter, C., Epochen der Verfassungsgesch. der röm. Republik, 118-140 (on the general character of the period); Ihne, W., History of Rome, bk. vi; Long, G., Decline of the Roman Republic, I. chs. v, vii, viii; Mommsen, Th., History of Rome, bk. III, ch. xi; Röm. Staatsrecht, see index s. the various laws; Lange, L., Röm. Altertümer, ii. 116-351, and see index s. the various laws; De legibus Aelia et Fufia commentatio, in Kleine Schriften, i. 274-341; Neumann, C., Geschichte Roms, I. ch. i; Nitzsch, K. W., Die Gracchen und ihre nächsten Vorgänger, bks. i, ii; Willems, Droit public Romain, 178 ff.; Mispoulet, J. B., Les institutions politiques des Romains, I. 220 ff.; Hallays, A., Les comices à Rome, 67 f.; Maranca, Il tribunato della plebe dalla lex Hortensia alla lex Cornelia; Arndts, Die lex Maenia de dote vom Jahr der Stadt Rom 568, in Zeitschr. f. Rechtsgesch. vii (1868). 1-44; Voigt, M., Die lex Maenia de dote vom Jahre 568 der Stadt; Die lex Fabia de plagiariis, in Verhdl. d. sächs. Gesellsch. d. Wiss. xxxvii (1885). 319-345; Savigny, F. C. von, Lex Cincia de donis et muneribus, in Vermischte Schriften, i. 315-85; Ueber die lex Voconia, ibid. i. 407-46; Schutz der Minderjährigen und die lex Plaetoria, ibid. ii. 321-95; Garofalo, F. P., Lex Cincia de donis et muneribus, in Bull. dell’ ist. di diritt. Röm. xv (1903). 310-2; Krüger, P. and Mommsen, Th., Anecdoton Livianum, in Hermes, iv (1870). 371-6; Babelon, E., Monnaies de la république Rom. i. 37-69; Hill, G. F., Greek and Roman Coins, 44 ff.; Haeberlin, E. J., Del più antico sistema monetario presso i Romani, V, in Rivista Italiana numismatica e scienze affini, xix (1906). 611-46; Cunz, O., Polybius und sein Werk; Pais, E., L’elezione del pontefice massimo Romano per mezzo delle XVII tribù; articles in Pauly-Wissowa, Real-Encycl. i. 576-80: L. Aimilius Paullus (Klebs); ii. 2728 f.: Baebius (idem); iii. 2738-55: M. Claudius Marcellus (Münzer); iv. 1112-38: Consul (Kübler). Grenfell, B. P., and Hunt, A. S., Oxyrhynchus Papyri, iv (1904). 90-116 for the newly discovered epitome of Livy, including text and commentary. The lost books xlviii-lv, covering the years 150-137, are represented. See also Kornemann, E., Die neue Livius-Epitome aus Oxyrhynchus, in Beitr. zur alt. Gesch. Beiheft ii (1904); Sanders, H. A., The Oxyrhynchus Epitome of Livy, in Trans. of the Am. Philol. Assoc. xxxvi (1905). 5-31, and a brief notice by Liebenam, W., in Jahresb. d. Geschichtswiss. xxvii (1904). 124 f.
XVI. COMITIAL LEGISLATION FROM THE GRACCHI TO SULLA 134-82
I. The Gracchi
134-122
The work of agrarian reform, after the feeble attempt of Laelius,[2240] was taken up in a more determined spirit by Ti. Sempronius Gracchus, who early in his tribunate, upon which he entered December 10, 134, promulgated his famous lex agraria. It was a repetition, with some modifications and additions, of those articles of the Licinian-Sextian statute which related to the same subject. The last instance of the prosecution of trespassers against the earlier law given in our imperfect records belongs to 193,[2241] and it must still have been in force in 167 when Cato[2242] recited its terms in his “Oration in behalf of the Rhodians.” Probably about the time of Flaminius the agrarian provisions of this statute were renewed with the addition of articles, (a) providing that a specified proportion of free laborers should be employed on public lands held in possession. (b) requiring holders to take an oath to obey the law. (c) increasing the penalty for violations.[2243]
Tiberius had matured his plan before entering office. Assisted by experienced friends, among whom were P. Licinius Crassus, P. Mucius Scaevola, the most eminent jurist of his generation, consul designate for 133, and Appius Claudius Pulcher, his father-in-law, he expressed the articles of his rogation in the most careful terms and with especial regard for vested interests.[2244] Its chief provisions were—
(1) No one shall hold more than five hundred iugera of the public land, excepting that in case the holder has sons he may occupy an additional two hundred and fifty iugera for each of two sons.[2245]
(2) The occupier shall receive compensation for improvements on the lands which the law compels him to surrender.[2246]
(3) The five hundred to one thousand iugera retained by the occupier shall be granted to him by the state in perpetuity and free from all dues.[2247]
(4) The lands thus accruing to the state shall be divided among the needy[2248] in lots, the maximal size of which seems to have been set at thirty iugera,[2249] to be held not as private property but as permanent, heritable leaseholds inalienable and subject to a specified rent.[2250] The Latins and Italians are to be included among the beneficiaries of this provision.[2251]
(5) Certain specified parts of the public domain shall not be subject to assignment—the same parts which are afterward reserved from assignment by the agrarian law of 111:[2252]
a. Land granted by law or by a senatorial decree to a colony, a municipium, or a Latin town, with the exception of any tracts of such land which this law may expressly order to be sold, assigned, or restored.[2253] Public domain granted by a lex or a senatus consultum can be withdrawn by the same, but the modification of a treaty requires the consent of both parties.[2254]
b. The trientabula—portions of public land granted by the government for a quit rent to its creditors as security for any part of a loan.[2255]
c. The ager compascuus—public land on which a specified group of neighbors have a right to pasture free of charge ten large domestic animals—cattle, horses, mules, and asses—and a fixed number of small animals, unknown to us on account of a lacuna in the inscription but most probably fifty.[2256] As the unit was doubtless the individual, much of the land of this description must have remained undivided.[2257]
d. Public roads.[2258]
e. Other portions of the public domain specifically designated as exempt from distribution, including the Campanian lands, which are leased out by the censors.[2259]
f. Certain pasture lands let out to any who wish to feed their live stock thereon, who pay a tax (scriptura) for the privilege.[2260]
(6) The distribution of the lands shall be effected by a standing magistracy elected annually by the tribes[2261]—the triumviri agris dandis adsignandis.[2262]
(7) As all available public land is to be utilized in the various ways described above, and as the holders of lands once public are to be guaranteed in their possession, further occupation of land is thereby precluded.[2263]
Afterward as Tiberius found it impossible to reconcile the optimates to his measure, he withdrew the second article and proposed to eject illegal holders without compensation.[2264] When the nobles induced Octavius, a colleague in the tribunate, to veto the bill, Tiberius had him deposed by a vote of the tribes, and then passed the agrarian law without further opposition, unauthorized however by the senate.[2265] The triumviri elected to take charge of the work of distribution were the author of the law, his brother Gaius, and his father-in-law Appius Claudius Pulcher.[2266] As the election of these persons was a violation of the Licinian and Aebutian plebiscites,[2267] a dispensation was probably granted by vote of the people.[2268] When the commission found itself hampered by legal inability to distinguish between public and private land, Tiberius carried a second agrarian law which invested the triumviri with the necessary judicial power for determining what land was public and what private.[2269] It was by virtue of this second enactment that the word iudicandis was introduced into the phrase descriptive of their functions—“iudicandis adsignandis” or “dandis adsignandis iudicandis.”[2270] In the year 129, probably at the time of the election to this office, Publius Scipio Aemilianus brought about the transfer of the judicial function to the consuls. Appian,[2271] our sole authority for the latter act, speaks only of its discussion in the senate, implying that this body rather than the people passed the resolution. In that case the senate must have annulled the second agrarian law on the ground that it was illegally passed; for in no other way could it set aside a comitial statute.[2272] Some land, already delimited, may still have been subject to distribution; but as the consuls avoided the disagreeable function received from the commissioners, the work of assignment came speedily to an end. The agrarian law of Ti. Gracchus fell thus into disuse till it was revived by his brother.[2273]
The deposition of Octavius[2274] requires especial consideration. In 136 the proconsular imperium had been abrogated, probably by a popular vote[2275]; but no instance of the abrogation of an actual magistracy had thus far occurred. Most scholars consider the act unconstitutional.[2276] It did indeed involve a sweeping departure from long-established custom; but in favor of its legality may be urged the fact that nearly all the powers ever possessed by the assembly are known to have been acquired in the way in which Tiberius was attempting to establish for it the right to remove from office—by precedent rather than by law. A statute of the Twelve Tables declared that whatever the people voted last should be law and valid[2277]; and through the ages preceding the Gracchi they had often applied this principle to the extension of their power at the expense of the senate and magistrates. They were sovereign; and if they chose to introduce the custom of deposing a magistrate whom they regarded as the betrayer of their dearest interests, they had the legal right. The wisdom of the proceeding may be questioned, but he who has followed the history of the assemblies thus far must regard the measure as merely one of the many steps by which the people advanced toward the realization of their sovereignty.
Tiberius attempted to apply the same principle to securing his election to the tribunate. His motive was not a purely selfish desire to save his life; it required no superhuman wisdom to discover that his downfall would mean the collapse of the great reform on which he had set his heart. The continued ascendancy of a popular champion necessarily involved the overthrow of the senatorial government. This idea, which he now clearly grasped, found expression in his new political platform, (1) to shorten the period of military service, (2) by means of a law of appeal to vest the supreme jurisdiction solely in the people, so as to deprive the senate of its extra-constitutional judicial power,[2278] (3) to give the equites equal representation with the senators in the juries, or possibly as Dio Cassius states, to transfer the courts from the senate to the knights.[2279] When the day of election came, his peasant supporters were busy with their harvests, and his platform did not strongly appeal to the city plebs, on whom he had chiefly to rely for votes. Had the people insisted, as they twice did in favor of Scipio,[2280] they would have prevailed either with or without an act of dispensation passed by the senate or by themselves[2281]; but the weakness of his supporters rather than any illegality in the proceeding proved his ruin. To free the future reformer from this limitation, however, a rogation of C. Papirius Carbo, tribune of the plebs in 131, proposed that a tribune should be eligible to reëlection as many times as he chose to offer himself as a candidate. This rogation failed[2282]; but before the tribunate of C. Gracchus, 123, “a certain law had already been enacted,” as Appian[2283] obscurely informs us, “that if a tribune should be wanting on the announcement (of the votes), the people might elect one from the whole body of citizens.” The statute, which Appian has evidently failed to understand clearly, seems to have provided that if the returns showed the election of only nine tribunes from the candidates proposed, the people could proceed to elect a tenth from the whole body of citizens, including the existing tribunician college; or equivalently, if for the tenth place the tribes cast a majority of votes for one who was not a candidate, he would be considered legally elected.[2284] The object was to enable the people to continue in office an especially popular tribune, and was therefore a notable stride in the direction of monarchy.
Papirius was more successful with his lex tabellaria, which extended the ballot to legislation, 131.[2285] Trials of perduellio alone retained the oral vote. Doubtless this improvement greatly strengthened the rising popular party. A plebiscite passed about 129, requiring a knight on entering the senate to sell his public horse, deprived the senators of their votes in the eighteen centuries, and completed the separation of the governing aristocracy from the commercial class begun by the Claudian statute of 219.[2286]
At some unknown time before the tribunate of C. Gracchus a plebiscite of M. Junius modified the lex Calpurnia concerning extortion,[2287] in what way we are not informed. The act is with a high degree of probability attributed to M. Junius Pennus, tribune of the plebs in 126.[2288] If the Junian lex repetundarum was indeed his work, it could have been dictated by no sympathy with the unprivileged classes, for it was this Junius whose plebiscite ordered the expulsion of all aliens from Rome—a measure which Cicero condemns as inhuman.[2289] The act last mentioned was the response of the senate and rabble to the effort of the more enlightened Romans to grant the citizenship to the Latins and Italians. The new idea was embodied in a rogation of M. Fulvius Flaccus, consul in 125, which offered the citizenship, or as an alternative the right of appeal, to the Italians, with the purpose of buying off their opposition to the Sempronian agrarian law; but the measure was so vehemently opposed in the senate that the author withdrew it.[2290] The idea however lived in the minds of the reformers till it was finally realized.
Ten years after the tribunate of Ti. Gracchus his brother Gaius entered upon the same office. Since the beginning of the decennium the leaders of the popular party had made various proposals but had accomplished little. The agrarian law was still nominally in force, though its execution was effectually blocked. The plan of extending the franchise had found its most bitter opponents in the men of the street, on whom the tribunes had chiefly to depend. The ballot in legislation, the possibility of continuous reëlection to the tribunate, and the increase of discontent with the plutocracy were the only gains. Extraordinary progress was now to be made under the leadership of a great creative statesman. The chronological succession of his comitial enactments cannot be determined with absolute certainty. We do not in every instance know whether a given proposal was carried in his first or second year. This much, however, is clear, that most of his measures belong to 123 and to the early part of 122. The execution of the laws, including the seventy days’ journey to Carthage,[2291] consumed much of the second year, and after his defeat for the third term—about July, 122—he carried no more plebiscites.[2292] Among his first thoughts was that of strengthening the legality of the deposition of Octavius[2293] by a rogation which provided that a person so deposed should thereby be debarred forever from office. He probably meant it more as an enunciation of a principle than as a legislative project. The measure was never offered to vote, but was withdrawn, we are told, at the request of his mother.[2294] Far more serious, and of lasting importance, was his lex de provocatione, which, carrying into effect the idea of his brother,[2295] forbade the establishment of a special court or the placing of the state under martial law without an act of the people.[2296] Further judicial legislation was postponed in the interest of more pressing matters.
While colonization and the assignment of land individually to citizens, which Gaius planned on an extensive scale, as will soon be noticed, were to provide for the agricultural population at the expense of the state, and while the nobles and knights continued to reap an unfailing harvest of wealth in the administration of the provinces, the democratic reformer could think it only just and expedient to subsidize the populace of the capital. The artificial growth of Rome as a political centre, with no sound economic basis but with a most unfavorable geographical situation, rendered the problem of living difficult for the masses even in time of prosperity; and recently circumstances had so diminished the grain supply that relief from the government seemed the only resource against threatening famine.[2297] Before the time of the Gracchi on occasions of especial scarcity or of especial plenty the state had sold grain at a reduced rate; and the aediles, we know not how often, had made similar reductions at their own expense.[2298] There can be no doubt, too, that individual nobles in a private capacity often distributed free or cheap grain among the poor to secure their support in elections. Attached by such means to the nobles and the senate, the rabble had been in the main conservative. There was a certain degree of justice in giving the populace a share in the profits of empire and some wisdom in substituting system for the existing irregularity. A political result, we may also say aim, of the frumentarian plebiscite of Gaius was to disattach the city populace from its conservative moorings and to enlist it in the service of reform. His measure, the first frumentarian law in Roman history, provided for the monthly sale to every citizen who applied for it—practically to those only who resided in or near Rome—of a fixed number of modii of wheat at six and a third asses a modius,[2299] which was probably about half the average market price. The law won for him the good will of the populace,[2300] but his opponents complained that it depleted the treasury and excited the mob to seditions.[2301] It set an example for further reductions at the expense of the state. Hence notwithstanding some good features the effect of the law was pernicious, as it tended to increase the number of idlers, to make the populace improvident, and to encourage demagogism. It must be said, on the other hand, that had Gaius lived to carry out his wide scheme of colonization, he would have so relieved the capital of its semi-pauper population as to render frumentations unnecessary, whereupon the law would naturally have been repealed.[2302]
After providing in the frumentarian act an expedient which, we may believe, he looked upon as temporary, he resumed the work of construction[2303] by reviving his brother’s agrarian law.[2304] The continuance of the assignations as long as there remained any public land that could be distributed was a most essential element of his plan. Among the articles retained were those which subjected the holders of assigned lots to a tax[2305] and exempted from distribution the Campanian territory not set apart for his colony at Capua,[2306] as well as various other lands excepted both by the agrarian law of Tiberius and by that of 111.[2307] Doubtless it also reinvested the three commissioners with judicial power, without which they could accomplish nothing. Through this agrarian law, or possibly through a subsequent lex viaria, the triumviri were empowered to build roads for the accommodation of the new peasantry.[2308] Though introducing no new principle,[2309] his lex agraria was not a simple reaffirmation of his brother’s law with amendments and additions; but “a comprehensive statute, so completely covering the ground of the earlier Sempronian law that later legislation cites the law of Gaius, not that of Tiberius Gracchus, as the authority for the regulations which had revolutionized the tenure of the public land.”[2310]
These measures were passed before the tribunician elections of the year,[2311] which took place as usual in midsummer.[2312] It was his frumentarian law, together with the hope aroused by the long array of promulgated measures, which secured his reëlection. Soon afterward, though still in 123, he brought before the comitia a rogation concerning the qualification of iudices. As the quaestiones extraordinariae from the earliest times were made up of senators, it was natural that the standing courts also from the time of their institution should be similarly composed.[2313] Under such conditions the judicial authority afforded no efficient check upon maladministration; and this immunity from the law, together with the temptations to the misuse of power especially in provincial commands, tended in the course of generations to make of the senate, with individual exceptions, a class of grand criminals. To remedy this evil and at the same time to remove from the senate the strongest foundation of its political power,[2314] Ti. Sempronius Gracchus had proposed his rogatio iudiciaria either for transferring the courts entirely to the knights, or more probably for making up the juries of an equal number of senators and knights.[2315] It failed to become a law; but Gaius now took up the matter, and after experimenting unsuccessfully with one or two projects,[2316] he finally, 122, carried a plebiscite which substituted knights for senators in the alba iudicum,[2317] from which not only standing courts but also special commissions were to be filled.[2318] It is uncertain whether mention was made of equites or whether the result was reached merely by exclusion and definition. There can be no doubt that the qualifications were identical with those described in the extant lex repetundarum,[2319] attributed by scholars to M’. Acilius Glabrio, a colleague of Gaius, and adopted accordingly soon after the Sempronian judiciary law. The terms of the Acilian statute excluded tribunes of the plebs, quaestors, tresviri capitales, military tribunes of the first four legions, tresviri for assigning lands, persons who had fought in the arena for pay or had been condemned by a quaestio or by the people. It excluded further all under thirty or over sixty years of age, and all who had their domicile more than a mile from Rome, the fathers, brothers, and sons of those who held the offices above enumerated, senators, and their fathers, brothers and sons, as well as persons living beyond the sea. A part of the statute missing from the inscription may have contained a minimal property qualification, which could have been no other than four hundred thousand sesterces; or it may have restricted jury service to those who “possess a public horse.”[2320] According to Plutarch Gaius was allowed the privilege of selecting the jurors. Had he remained in power and continued in this function, he doubtless could have compelled the courts of his choosing to do justice. But the privilege seems to have been restricted to the first list; thereafter, as provided by the lex repetundarum of Acilius the praetor qui inter peregrinos ius dicit was to attend to the matter.[2321] The relation between the Sempronian lex iudiciaria and the lex Acilia repetundarum has not been precisely determined.[2322] If the Sempronian statute preceded the Acilian,[2323] as is not unlikely, it was the intention of Gaius to pass a general law regarding the qualifications and mode of appointment of jurors, to be superseded in large part by a succession of laws, which dealing with individual courts, should regulate the qualification and appointment of their several juries as well as the procedure and the penalties. This policy indicates a conviction that he could give the reformed judicial system greater stability by making the separate laws here referred to entirely independent of his original lex iudiciaria.[2324]
The lex Acilia, described above as a plebiscite of M’. Acilius Glabrio, colleague of C. Gracchus in 122,[2325] took the place of the lex Iunia of 126,[2326] and is to be identified with a lex repetundarum extensive fragments of which are preserved in an inscription.[2327] Whereas earlier laws on the subject rendered governors of provinces, and perhaps administrative officers in Italy, alone liable to punishment, the Acilian statute includes magistrates and senators and the sons of both as well as the holders of promagisterial imperium.[2328] The crime consists in taking in any one year from those whom the law is designed to protect—from the allies, Latins, provincials, and exterior nations under the sway or in the friendship of the Roman people[2329]—by gift, seizure, compulsion, or other illegal means money or property exceeding a specified sum, which a lacuna in the inscription leaves unknown, but which is supposed to be four thousand sesterces.[2330] Holders of magistracies and imperia cannot be brought to trial for the crime till after the expiration of their terms,[2331] on the general principle which exempts from prosecution those who are engaged in the service of the state.[2332] The praetor qui inter peregrinos ius dicit within ten days after the passage of the statute, and in future within ten days after entering upon his office, is to choose for this court four hundred and fifty persons with the qualifications for jury service described above in connection with the Sempronian judiciary law. From this group the accused is to reject under oath his kinsmen within a specified degree and his sodales. The accuser is to draw from the remainder a hundred persons, taking oath that he has chosen no kinsman within a specified degree or sodalis. The accused rejects fifty of the hundred, and the remaining fifty constitute the jury for trying the case.[2333] The rules of procedure in the trial and the amount of liability of the accused in the event of conviction are given. The accuser, if an alien, is granted as a reward for a successful prosecution the Roman citizenship for himself and his born sons and grandsons. If he is a Latin and does not want the citizenship, he is given instead the right of appeal.[2334] Probably the law contained provisions for the punishment of corruption in the patrons of the accusers and in the praetor and jurors.[2335]
It is certain that Gaius carried a law also for reconstituting the quaestio inter sicarios et veneficos,[2336] which had originally been established shortly before 141.[2337] The Sempronian law on this subject contained a provision for the punishment of bribery or conspiracy committed in trials of the kind. The article referred to included the words “Ne quis iudicio circumveniretur,”[2338] a principle repeated as “Qui coisset, quo quis condemnaretur”[2339] in the corresponding article of the Cornelian law which superseded the Sempronian. There was no quaestio for dealing especially with judicial corruption and conspiracy, but the accused was brought to trial before the very court in relation to which his crime was alleged to have been committed.[2340] The provision was directed against the accuser, against magistrates and senators who presided over such courts, and presumably against equestrian jurors who accepted bribes.[2341]
We have in an inscription the concluding articles of a criminal law[2342] of this period. It is on a bronze tablet found on the site of the ancient Italian city Bantia, and is called the Latin Lex Bantina to distinguish it from another lex in Oscan on the opposite face.[2343] A reference to the triumviri agris dandis adsignandis, who seem to have been those elected under the Sempronian agrarian law, places the document between 133 and 118. It is concerned with a quaestio.[2344] An attempt has been made to identify it with the lex Iunia repetundarum and to assign it accordingly to 126.[2345] The circumstance, however, that it was passed without the authorization of the senate, and that its whole spirit is anti-senatorial, would lead us rather to the conclusion that it was the work of C. Gracchus at the time of his most bitter struggle with the optimates yet before he had lost control of the comitia. The fragment contains no more than the sanctio—provisions for enforcement of the statute. The beginning of the first extant article is lost, but it must have described the class of offenders to which the article applies, and the nature of the offence. It speaks merely of disabilities imposed on the offender, among which are the following: he must not address the senate or vote in a public trial (poplico ioudicio) or in comitia or receive or give testimony in court or wear the praetexta and soleae in public or be chosen into the senate or remain in it if already a member. The second article provides that if a tribune of the plebs, a quaestor, a triumvir capitalis, a triumvir for assigning lands, or a index appointed under the law itself, or a senator shall with knowledge and malice prepense violate the law or hinder its operation, he shall be liable to a fine, the amount of which a lacuna in the text leaves unknown. The third article provides that a consul, praetor, aedile, tribune of the plebs, quaestor, triumvir capitalis, or triumvir for the assignment of lands now in office shall, within the next five days after ascertaining that the law has been enacted, swear in the manner described below: also that the dictator, consul, praetor, master of horse, censor, aedile, and other officials as above enumerated, and the index appointed under this law shall in future take the oath within five days after entering upon their magistracies or imperia. They shall give oath to the urban quaestor publicly in front of the temple of Castor, swearing by Jupiter and the di Penates that they will do as the law requires and will not with knowledge and malice prepense violate the law or by intercession or otherwise hinder its administration. He who fails to swear shall not be candidate for a magistracy or imperium, or manage or retain either, or address the senate or be chosen into it; and the quaestor shall keep a list of those who have taken the oath. The fourth article provides that whoever is or shall be a senator, or shall have the right of addressing the senate after this law has been passed, shall within the next ten days after ascertaining the fact of its enactment take an oath like that described in article 3. The penalty for failure to swear is not mentioned in the extant fragment, but must at the mildest have been expulsion from the senate.
Closely connected with the transfer of the iudicia from the senators to the knights is the statute of Gaius concerning the taxation of Asia. It ordered the censors to let out the taxes of this province to the highest bidders; and it limited the right of the senate to lessen the sum agreed upon.[2346] Under such an arrangement, however, no sufficient guarantee could be provided for the security of the provincials from publican exactions.[2347] The political result of this legislation in favor of the knights was to invest them not only with an important share in the administration, but through the courts with a superiority even over the senate.[2348] The opposition of the poorer class to the aristocracy could never be otherwise than uncertain and fitful; but the knights with their immense wealth and their efficient organization were to be henceforth an ever present rival of the senate. The author of the law had given the state a double head,[2349] which was to prove the source of civil discord; or nearly in his own words, he had thrust into the body of the senate a sword which nothing could withdraw.[2350] For a few months their benefactor may have cherished the delusion that he could depend upon their grateful support; he lived to discover that they cared not for him or his reforms but only for their immediate interests. In his work of construction the statesman found them slightly more serviceable than the proletariate.
The right which the senate had hitherto possessed of assigning the provinces to the magistrates and promagistrates according to its pleasure gave a great opportunity for favoritism and partisanship; it could thwart the will of the people by assigning a popular consul to an insignificant province. To deprive the senate of a power which could be so easily perverted to wrong use, C. Gracchus proposed and carried an act which ordered the senate before the election to name the provinces that were to be consular.[2351] An article forbade tribunician intercession against such action of the senate.[2352] Far from improving the administration, however, this statute tended to foster that routine which was one of the most marked defects of oligarchic rule.[2353]
As under the government of the nobility military affairs were in the hands of the magistrates and senate, this field was closed to comitial legislation.[2354] One of the most notable indications of growing democracy was the project of Ti. Gracchus, 133, for shortening the period of service. It was not brought to vote;[2355] but his brother Gaius succeeded in passing a plebiscite, 123, which ordered that the state should bear the cost of clothing soldiers, and forbade the enlistment of boys before the close of their seventeenth year.[2356] The pay of the soldiers, which since the war with Hannibal had remained five and a third asses a day, had under new conditions become wholly inadequate; and certainly insistence on the legal age limitation was prudent as well as humane. There is no ground, then, for imagining with Diodorus[2357] that in this salutary measure Gaius was catering for the support of the soldiers by inciting them to disobedience and lawlessness.
His greatest constructive work he aimed to achieve through colonization and through the extension of the franchise. His colonial law, 123, proposed to establish many settlements in Italy,[2358] two of which at least should be made up of men of the best character, not the neediest but traders and workmen of moderate means.[2359] The two actually founded were Scolacium and Neptunia,[2360] both in situations favorable for commerce. Several other settlements in Italy are attributed to his colonial or agrarian statute.[2361] As his colonies were exclusively citizen,[2362] if any aliens took part, they must by virtue of the colonial law have obtained the Roman rights. The statute of his colleague Rubrius the same year (123) provided for the founding of Junonia on the site of Carthage.[2363] But the most liberal and statesmanlike measure was reserved for his second tribunate, 122. It was a proposal to grant full citizenship to the Latins and the ius Latii to the remaining allies.[2364] The rejection of the bill by a popular vote proved the leader far too liberal and too progressive for his supporters. Deceived by the spurious proposals of M. Livius Drusus,[2365] a colleague of Gaius, for the founding of twelve colonies, the members of which were to hold their lots by fee simple and consequently exempt from rents, and for depriving the Roman magistrates of the right to inflict corporal punishment on Latins even when in military service under their commands,[2366] the populace, readily accepting the new proposals,[2367] turned against their true champion, and defeated him in the election for the tribunate for the ensuing year.[2368] It was probably the same measure of Gaius for extending the citizenship which alienated from him the equites, who in every crisis pursued their own selfish ends.[2369] In the ensuing struggle between the senate and Gaius they took the side of the former.[2370]
In the tribunate of Gaius Gracchus the life of the comitia reached the highest point of intensity. The two years of his administration afford evidence of what the assembly could accomplish when directed by the personality of a great statesman.[2371] The sum total of the measures adopted should be estimated not as a completed work, but as a foundation to be strengthened at defective points and to be built upon till the whole structure of the state and empire should be reconstituted and freshly vitalized. These results might have been achieved, had Gaius lived out his natural life and retained the support of the populace and the knights.[2372] His failure proved the comitia a weak, unsafe instrument for constructive statesmanship.
II. The Aristocratic Reaction and the Popular Recovery
122-103
The optimates waited only for the expiration of the tribunate of Gaius Gracchus to begin undoing his work, and they found the comitia ready to aid in the demolition. In 121 a plebiscite of M. Minucius Rufus repealed the Rubrian law for the colonization of Junonia (Carthage).[2373] Soon afterward, certainly not later than 118, a plebiscite, whose author is unknown, permitted the beneficiaries of the Sempronian agrarian laws to sell the lots they had received.[2374] This enactment was followed in 118 by a plebiscite which Appian[2375] assigns to Spurius Borius (?), a name not otherwise known.[2376] It put an end to the distributions, and must therefore have abolished the agrarian triumvirate. The same law confirmed all holders of the ager publicus in their possession, without converting any of this land into private property, and it continued the imposition of rents. We may assume that the lands here referred to included those recently distributed in small lots as well as those retained by the occupiers. Lastly it enacted that the revenues accruing from the rents should be used for distributions—probably of cheap grain.[2377] In 111 another tribune, whom Cicero[2378] names Sp. Thorius, through a law which has partially survived in an inscription, aimed to settle definitely and for all time in the interest of the nobles the questions raised by the Sempronian agrarian legislation.
I. This epigraphic lex agraria converts into private property the following classes of lands.[2379]
(1) Land assigned to a colony or in any way made public, and afterward restored to the original owners (domneis). It is to be private optuma lege.[2380]
(2) Land assigned to a colony and afterward restored to its former occupier (veteri possessori).[2381]
(3) Land within the legal limit (of five hundred iugera) left to the occupier by the three commissioners.[2382]
(4) Land assigned after 133 to colonies of Roman citizens.[2383]
(5) Land given and assigned by the three commissioners after 133.[2384]
(6) Land which has been occupied after 133 (not assigned by the commissioners) to the extent of not more than thirty iugera to the occupier.[2385]
(7) Land which by the provision of this law is to be sold, granted, or restored.[2386]
All the lands above enumerated are declared private and free from vectigal and scriptura.[2387]
II. The lands which the law declares public are those reserved from distribution by the law of Ti. Gracchus.[2388] It retains further as public all lands along public roads which have been granted by the commissioners on condition that the recipients (viasieis vicaneis) in return for the use of the land undertake the duty of keeping the roads in repair. Though heritable and alienable, they remain subject to the burden here described.[2389]
III. In the regulation of the agrarian conditions of Africa the statute deals with three kinds of land, (1) private ex iure quiritium,[2390] (2) private ex iure peregrino,[2391] (3) public domain of the Roman people of various sub-classes.[2392] Lastly the statute aims to settle the status of the lands of Corinth.[2393] As regards the Latins and aliens, whatever has already been permitted them by treaty or law is allowed them by this statute, provided the same thing is allowed a Roman citizen; but it is forbidden them if forbidden a citizen. Rights granted the citizens which up to this time are not enjoyed by aliens are not by this law communicated to aliens.[2394]
Through this series of reactionary laws, from the Minucian (121) to the Thorian (111), the optimates succeeded in nullifying the good results of the Sempronian agrarian reforms. It was while the Minucian rogation[2395] was under discussion that the senate took advantage of a disturbance in the concilium to arm the consul Opimius with absolute power for putting down C. Gracchus and his followers.[2396] The failure of an attempt in the following year (120) to call Opimius to account for these proceedings established the right of the senate to the appointment of special commissions and to the decretum ultimum[2397]—a right on which the optimates continued to insist to the end of the republic. Through the plebiscite of L. Calpurnius Bestia (also 120)[2398] they put the stamp of legitimacy upon the murder of the followers of Ti. Gracchus by recalling from exile P. Popillius Laenas, who as consul in 132 and head of a special court was chiefly responsible for that judicial crime.[2399] An attempt was made by Q. Servilius Caepio, consul in 106, to restore the courts to the senate,[2400] or possibly to compromise by providing for an album composed of both senators and equites.[2401] The sources imply that the measure was accepted by the comitia; but if so, it must have been immediately annulled, as it was not carried into effect.[2402] Within this period of reaction, and perhaps as a part of it, falls the lex de libertinorum suffragiis of the consul M. Aemilius Scaurus, 115. Although nothing certain is known of it, we may suppose that it attempted again[2403] to restrict the libertini to the four city tribes.[2404] About this time, too, several acts seem to have been passed for diminishing the pay of soldiers, probably undoing the Sempronian law on the subject.[2405]
A glance at these reactionary measures alone would leave the impression that the senate was recovering its entire supremacy. This result might have been reached had it not been on the one hand for the lasting inspiration of the Gracchan spirit in the plebs and their leaders, and on the other the new position of the equites. In 119 C. Marius, at once a representative of the knights[2406] and of the peasants, opposed as tribune of the plebs the senatorial aristocracy, which now had to depend for immediate support upon the populace.[2407] The optimates had greatly impaired the value of the secret ballot through the custodes tabellarum, who stood on the pontes as well as by the boxes (cistae) to keep watch over the voting. They were often influential men[2408]—in elections selected by the candidates[2409]—who used their influence with the voters, especially of the principium or of the prerogative century,[2410] thereby maintaining for the aristocrats a high degree of control over the comitia in spite of the ballot laws.[2411] For this reason C. Marius when tribune of the plebs carried an act for making the pontes narrower that there might be room on them for the voters only.[2412] The politicians, however, soon found means of circumventing this law as well as the use of the ballot.[2413] The populares could expect little therefore from the plebiscite of C. Caelius, 107, which by extending the ballot to trials of perduellio, completed the abolition of oral voting in the comitia.[2414]
We find another sign of popular recovery in the assembly’s resumption of the appointment of special judiciary commissions.[2415] One of the most remarkable courts of the kind was that created in 113 for the trial of three Vestal virgins on a charge of incest. The pontifex maximus, who possessed absolute authority over the Vestals, had already pronounced judgment, condemning one and acquitting the other two, when a plebiscite of Sex. Peducaeus, taking the case out of his hands, transferred it to a quaestio extraordinaria.[2416] To such an extent did the tribune apply the theory of popular sovereignty.[2417] The plebiscite of C. Mamilius, 109, ordered the appointment of a court for the detection and punishment of those who had accepted money from Jugurtha for aid rendered him against the decrees of the senate and the interests of Rome. As it was a blow aimed at the nobility, the people in the hatred they then cherished against the governing class voted it with great spirit.[2418] In 105 the tribal comitia abrogated the proconsular imperium of Q. Servilius Caepio,[2419] and in the following year, they not only appointed a special court to try him for embezzlement of the gold found at Tolosa,[2420] but through the plebiscite of L. Cassius Longinus, they disqualified for membership of the senate any person whom the people had judicially condemned or whose imperium they had abrogated.[2421] These acts confirmed and applied the principles underlying the deposition of Octavius and the rogation of C. Gracchus concerning persons deposed from office (abacti). In theory the people indirectly chose the senators through their function of electing magistrates; and they were only claiming this right when they insisted that he should be prohibited from membership whom they had condemned in either of the two ways described by the statute. It must have seemed to the people, on the other hand, that the tribunes, who were once more their true representatives, had as good a right as any other magistrates to seats in the senate. This feeling found expression in the Atinian plebiscite, enacted between 122 and 102,[2422] which gave the tribunes the ius sententiae dicendae in the senate with the same right to censorial enrolment as that enjoyed by the curule magistrates.[2423]
The growing strength of the people and at the same time the increasing dependence of the optimates on religion for the control of politics are indicated by a law of 103 concerning the election of sacerdotes. More than a hundred years earlier[2424] was instituted the custom of electing the supreme pontiff and the chief curio in comitia of seventeen tribes designated by lot. Toward the end of the plutocratic régime C. Licinius Crassus in the interest of the people attempted in vain to pass a law for extending the principle to all the members of the more important sacerdotal colleges.[2425] The proposal was defeated by the eloquence of C. Laelius,[2426] but at length it was passed as the lex de sacerdotiis of Cn. Domitius, tribune of the plebs in 103. The statute affected the pontifical and augural colleges, the decemviri sacris faciundis, and the epulones.[2427] According to the new arrangement when a place became vacant in any one of these colleges, the members of the college drew up a list of eligible candidates from whom the comitia sacerdotum, composed as above described, made a choice.[2428] In spite of this law religion remained a political tool of the optimates.
Meantime the popular party succeeded in enacting economic laws. A Porcian statute concerning interest, which may well have aimed to benefit the poor, seems to be the work of M. Porcius Cato, consul in 118. The author had to defend the act against several attempts to repeal it.[2429] In 109 under the stress of the Cimbric war the consul M. Junius Silanus passed an act for repealing several earlier laws which had diminished the pay of soldiers. We may reasonably believe that it restored the Sempronian law on the subject.[2430] His immediate object was to encourage enlistments.[2431] An agrarian rogation was offered by L. Marcius Philipus, tribune of the plebs in 104. As the author was at heart a democrat, his measure was doubtless inspired with the spirit of the Gracchi. Perhaps it aimed to restore their law; but lacking determination, the proposer readily allowed it to be voted down.[2432] The monetary lex Clodia, which probably belongs to the same year, has no political significance.[2433]
III. The Appuleian Legislation and the Rule of the Moderate Optimates
103-88
Through the legislative acts above described we can trace the speedy restoration of the democracy and of comitial legislative power after the overthrow of C. Sempronius Gracchus. We are now approaching a second crisis in which the aristocracy had to struggle for existence. Against it was formed a combination of three powerful men, C. Marius, supported by the knights and the municipes,[2434] C. Servilius Glaucia, and L. Appuleius Saturninus. It is almost certain that this Servilius is to be identified with the author of the lex repetundarum of 111 or thereabout, probably a plebiscite, which repealed the Acilian law on the same subject.[2435] In important respects his statute was an improvement on earlier regulations of the crime. “Glaucia’s alteration in procedure was thorough and permanent. He introduced the system of the ‘second hearing’—an obligatory renewal of the trial, which rendered it possible for counsel to discuss evidence which had already been given, and for jurors to get a grasp of the mass of scattered data which had been presented to their notice[2436]—and he also made it possible to recover damages, not only from the chief malefactor, but from all who had dishonestly shared his spoils.”[2437] These principles were taken up into the Cornelian law which superseded it in 81.[2438] The circumstance that the man whom the optimates regarded as merely a vulgar demagogue was the author of so statesmanlike a measure ought to militate against their opinion, not only of him, but also of his associates. He, too, represented the knights,[2439] whereas Appuleius was a champion of the rural plebs against the senate and the populace. As tribune of the plebs in 103 the latter proposed a law for the assignment of lands in the province of Africa to the retiring veterans of Marius in lots of a hundred iugera each. When Baebius, a colleague, interceded, the people pelted him with stones and drove him from the assembly. Thus the law was violently carried, but we hear nothing more of it. Probably it was not enforced.[2440] This act marks an epoch in the history of Roman colonization; through it the government first expressed its intention to provide discharged soldiers with farms, a departure made necessary by the Marian policy of filling the army with capite censi.[2441] Either to this tribunate or more probably to his second belongs the lex de maiestate (minuta),[2442] the first of the kind in Roman history. It defined the crime and made general provisions for the prosecution of those who were accused of it.[2443] The same statute provided for the establishment of a court which seems to have been standing rather than special.[2444]
In his second tribunate, 100, supported by Marius, consul a sixth time, and by Servilius, Appuleius proposed and carried a law for the founding of settlements of the Marian veterans in Sicily, Corsica, Achaia, and Macedonia.[2445] Marius was to be a commissioner for conducting these colonies, and was to have the right to enroll as citizens in each settlement a specified number of aliens.[2446] The object of the latter clause was doubtless to provide for the Italian veterans in his army. He proposed further that certain Transpadane lands which the Cimbri had taken from the Gauls and which Marius had recovered should be distributed among the citizens and the Italians.[2447] Another proposal was for the monthly sale of a specified number of modii of grain to every citizen resident of Rome who desired it at five-sixths of an as to the modius—a merely nominal price.[2448] It is not known whether the colonial, agrarian, and frumentarian measures were separate enactments or articles of one statute; or the colonial and agrarian provisions may alone have been combined. However that may be, we are informed by Appian[2449] that attached to the agrarian measure—whether to the others also is nowhere stated—was an article which provided that if the bill should become a law, the senators within five days should swear to uphold it, or if any senator refused to take the oath, he should be expelled from the senate and should be liable to a fine of twenty talents, the Greek equivalent of about five hundred thousand sesterces.[2450] The rural plebs, including many discharged soldiers of Marius, swarmed into the comitia at the call of the tribune and violently passed the law. Marius, who as a consul and a knight disapproved of such illegality, set for the senators the example of swearing to the law, “in so far as it was a law,” which left them a loophole of escape from its provisions should they afterward so determine. Metellus, who alone of the senators refused the oath, was forced into exile and an interdict from fire and water was passed against him by the tribes on the motion of Saturninus.[2451] Soon afterward an election riot gave the senate a pretext for martial law. Placed under custody, Saturninus and some fellow officials were stoned to death by a mob. His measures were then annulled by the senate on the ground that they had been violently passed;[2452] nevertheless Mariana was founded by Marius in Corsica, apparently under the colonial provision.[2453] The import of the agrarian law of Sex. Titius, tribune of the plebs in 99, is unknown.[2454] It may have been merely a reënactment of the Appuleian measure. At all events before it could be put into force it was annulled by the senate on the ground that it had been passed by violence and against the intercession of colleagues.[2455]
The optimates, having again triumphed over the democracy, adopted a policy of moderation. Their consuls of 98, Q. Caecilius Metellus and T. Didius, attempted by a mild statute to check the most flagrant abuses of tribunician legislation, (1) the combination of various dissimilar provisions in one bill (lex satura) for the purpose of drawing the votes of all parties, (2) the passing of bills through the assembly by surprise. Their law accordingly, reviving usages once in force but recently neglected, forbade such combinations[2456] and ordered that the promulgation should precede the voting by at least a trinum nundinum—an interval which included three market days.[2457] Similarly in 95 their consuls, L. Licinius Crassus and Q. Mucius Scaevola, aimed by an equally moderate law to check the usurpation of the citizenship on the part of aliens. It forbade peregrini to perform the functions of citizens, though it did not order the innocent among them to leave Rome.[2458] It provided for the appointment of a special commission to discover and punish usurpers of the citizenship.[2459] Those found guilty were sent back to their communities.[2460] Though the authors were eminent in justice and cherished the best intentions, their law proved to be not merely useless but most pernicious to the state,[2461] as it helped drive the Italians to revolt.[2462]
The next attempt at reform proceeded from the inmost circle of the aristocracy.[2463] M. Livius Drusus, tribune of the plebs in 91, was a man of the highest nobility, wealthy, eloquent, and upright at heart, the son of that Livius who had opposed C. Gracchus.[2464] Regarding his aims and the quality of his statesmanship conflicting opinions have been expressed by modern scholars. The sources intimate that he wished primarily to strengthen the senate by breaking away from its hide-bound conservatism and undertaking various pressing reforms. His agrarian measure was conceived in the Gracchan spirit but was more radical.[2465] Appian[2466] states that it proposed the founding of colonies voted long ago but not yet established. Reference must be to the twelve colonies planned by his father.[2467] It probably abolished the statute of 111 and ordered the division not only of the Campanian lands,[2468] but also of those public domains which were held by the allied communities—in brief, of all the public land remaining in Italy and Sicily;[2469] and it established a board of ten for making the assignments.[2470] Livy[2471] attributes to the author a frumentarian proposal, though we are not informed of its character. The aim must have been to win the support of the populace for his other measures.[2472]
He further proposed to mix with the silver coinage an eighth part of copper,[2473] the proceeds of this gain to be applied perhaps to the execution of his frumentarian project.[2474] There is much controversy as to the intent of his judiciary reform. Appian[2475] supposes that he wished to add three hundred knights to the senate and to draw the jurors from that body thus enlarged. Velleius[2476] is of the opinion that his aim was to transfer the iudicia to the senate; whereas the epitomator of Livy[2477] directly states that he provided for making up the iudicia of senators and knights in equal numbers. We may partially reconcile these conflicting statements by supposing that he planned to compose the jurors’ album of six hundred senators and knights in equal numbers, by which expedient he hoped to bring these two hostile orders back to their former harmony,[2478] while serving the interests of the senate and ridding the state of the corrupt and tyrannical rule of the knights.[2479] By a special article of the rogation a quaestio, probably perpetua, was to be appointed to inquire into the cases of bribery of jurors and to punish the guilty.[2480] His most radical measure, introduced after opposition to his other reforms began to develop,[2481] was for extending the citizenship to the Latins[2482] and to all the Italians.[2483] This group of proposals, designed for the benefit of all parties, proved distasteful to all. The senators found a ground for complaint in the circumstance that the knights would have equal power with them in the courts; the knights were unwilling to surrender their judicial control or to grant the franchise to the Italians; the wealthy Italians feared they might lose the public lands which they still held. Only the poor among the Romans and allies supported the proposal in the hope of profiting by the distribution of lands.[2484] The agrarian, frumentarian, monetary, and judiciary measures were combined in one statute, and passed with violence[2485] and contrary to the omens.[2486] On these grounds and furthermore because they violated the article of the Caecilian-Didian statute forbidding the passing of a lex satura, they were annulled by the senate.[2487] Although Drusus might have interposed his veto against this decree, he preferred rather to disregard it, most probably on the theory that the senatorial authority did not avail against the sovereign will of the people.[2488] Aware that his intercession would but postpone the annulment to another year, he contented himself with informing his opponents that his measures were absolutely necessary for the security of the state, and that those who offended against them did it at their peril. He proceeded to carry his statute into immediate effect.[2489] A plebiscite of Saufeius, a colleague, established a commission of five in addition to the ten provided for by the Livian statute; and Livius was elected a member of both commissions.[2490] After his murder the Livian and Saufeian statutes were both considered null and void.[2491]
The lex Remmia de calumniatoribus, which was enacted before 80, may belong to the year of the Livian attempt at reform, 91;[2492] and in that case it would be most natural to regard it as a piece of counter legislation to offset the proposal for establishing a court for the trial of jurors accused of bribery. The complainant who was proved malicious it rendered liable to trial and punishment with the loss of citizenship and the branding of his forehead with the letter K (for Kalumniator).[2493] This we may believe was the defiance offered by the knights to those who were attempting to bring them to account for their conduct as judges. Exulting in their victory over Drusus, they expressed their antipathy to the Italian movement in a lex de maiestate of Q. Varius, tribune of the plebs in 90. They stood round the Rostra with drawn daggers and forced it through the comitia in spite of tribunician intercession. It supplanted the Appuleian law on the subject by a severe provision against those who encouraged the Italians to demand the citizenship or in any way to conspire or to revolt against the Roman people. It must have contained an article, too, concerning seditions.[2494] The court which it established was to sit on all ordinary dies fasti, undisturbed by iustitia,[2495] and was to be a quaestio perpetua.[2496] Now that two attempts, the Appuleian and the Livian, to substitute more popular measures for the Sempronian frumentarian law had failed, the optimates found themselves strong enough to supersede the Sempronian act by one less popular. This was the Octavian law,[2497] the contents of which are unknown, but which received the praise of Cicero for its moderation.[2498]
The Social War, following close upon the murder of Livius Drusus, compelled the Romans to grant the citizenship to the Italians. This result was brought about by a succession of statutes. A law of the consul L. Julius Caesar, 90, bestowed the citizenship upon the Latins[2499] and on all the Italians who had not taken arms against Rome[2500] and who were willing to accept the gift.[2501] The same statute probably regulated the assignment of these new citizens to the tribes.[2502] In the following year a law of L. Calpurnius Piso, probably a tribune, granted the commanding general power, apparently absolute, to bestow the right of the city upon the soldiers under his orders.[2503] Another statute of 89, carried by M. Plautius Silvanus and C. Papirius Carbo, tribunes of the plebs, granted the citizenship to all members of allied communities who were domiciled in Italy at the time the statute was passed and who within sixty days should signify to the praetor at Rome their willingness to accept the offer.[2504] The object of this measure was not only to expedite the reconciliation, but also to make the work of the next censors practicable. The citizenship thus granted involved the right of suffrage, though in new tribes which voted after the others. Many Italians, especially the Lucanians and the Samnites, took no notice of the offer.[2505] In the same year Cn. Pompeius Strabo, a consul, proposed and carried a law which seems to have empowered himself at his discretion to invest with full citizenship those Transpadani who already enjoyed the Latin rights, and to confer upon the rest the ius Latii.[2506]
The question as to the composition of the courts, still left unsettled, was taken up by M. Plautius Silvanus, the tribune referred to above. His statute transferred the filling of the album from the urban praetor to the tribes, which were to elect each fifteen members. The law made the qualifications of the iudices independent of the social classes. Under it accordingly senators and a few common plebeians in addition to equites served as jurors, so that the equestrian control of the courts was partially checked.[2507]
Mommsen[2508] supposes that these jurors were for the quaestio de maiestate only. For this opinion he depends upon the assertion of Cicero[2509] that the equites remained till Sulla’s legislation in uninterrupted possession of the courts. The authority of Cicero, however, would allow us to assume that while the equites lost the legal monopoly they retained practical control. However that may be, it is hardly possible that this reactionary measure survived the proletarian uprising under Marius and Cinna. The lex agraria of the same Plautius seems to have been intended for supplying the veterans of the Social War with farms.[2510] The lex Papiria, which introduced the semiuncial as, is doubtless to be assigned to C. Papirius Carbo, the colleague of Plautius above mentioned. If so, the object was to relieve slightly the financial embarrassment caused by the war, and more particularly to bring the small coins of Rome into correspondence with those of Italy.[2511]
IV. The Political Equalization of Italy
88-83
With many Italians still in revolt and the others smarting under the inferior citizenship eked out to them, and with Mithridates threatening the existence of the empire, Rome should have adopted a policy of domestic conciliation. Under these circumstances Sulla, consul in 88, showed a lamentable want of tact in expressing the sentiment that there could be no peace in Italy as long as a single Samnite lived[2512]—a curiously antiquated frame of mind for a statesman of his shrewdness. The cause of the new citizens was taken up by P. Sulpicius Rufus, a patrician who had forsaken his rank to qualify himself for the plebeian tribunate.[2513] A man of marvellous eloquence, he had been an adherent of Drusus, though more inclined to the equestrian interests. As tribune of the plebs, 88, he seems to have tried to win the support of the senate and of the equestrian order to his policy; but failing in the attempt, he looked for aid to the commons and to a small band of knights who were faithful to him. His rogation contained the following articles: (1) that the new citizens and the libertini should be distributed among all the tribes,[2514] with a view to completing the plan of Livius Drusus for the political equalization of Italy; (2) that those who had been driven from the state by violence should be recalled.[2515] This article was probably for the benefit of those knights against whom the Varian law had been turned.[2516] His rogation provided further, (3) that no one who owed more than two thousand denarii should be a senator.[2517] Money was scarce because of the war;[2518] and Sulpicius must have felt that if the senators, most of whom were abundantly able, should pay their debts, it would go far toward relieving the stringency, and that if any were ejected because of failure to pay, an opportunity would be afforded of promoting equites to the vacant places. The consuls of the year, L. Cornelius Sulla and Q. Pompeius Rufus, attempted to prevent a vote on these radical measures by interposing a cessation of business for many days through the proclamation of a festival.[2519] With his armed followers Sulpicius forced the consuls to recall the proclamation, whereupon Sulla fled for safety to his army at Nola. Sulpicius then added to his statute a fourth article to the effect that the imperium of Sulla should be abrogated and that the province of Asia, involving the conduct of the war against Mithridates, should be given to Marius as proconsul,[2520] although the latter was now but a private citizen. Doubtless Sulpicius understood that there could be no guarantee for the execution of his statute as long as Sulla remained in power, and furthermore that the advancement of Marius would be a great gain for the knights. The bill was passed by the comitia of tribes; but Sulla, far from delivering up his command, marched his army into Rome to settle the question in his own interest by the sword. On his initiative Sulpicius, Marius, and ten of their associates were declared public enemies by a decree of the senate ratified by a popular vote.[2521] There is no need of assuming that the supporters of the tribune turned against him; the optimates were as clever as their opponents at packing assemblies. The absurdity of continuing the worn-out comitial machinery as a factor of government is nowhere more apparent than on this page of history, which records that the comitia a few days after adopting the measures of Sulpicius, voted to outlaw him and his friends. Marius fled; Sulpicius and several adherents were killed. Thereupon the senate annulled the entire Sulpician statute on the ground that it had been violently passed.[2522]
No statesman, however opposed to popular government, could think of abolishing the comitia or even of putting an end to their legislative function. But the democracy could be effectually checked by reducing the legislative power of the assemblies to the harmless function of ratifying decrees of the senate. This result Sulla and Pompeius aimed to reach by renewing an ancient law[2523] that no measure should ever again be brought before the people which had not been previously considered and agreed to by the senate.[2524] A closely related law of the same consuls ordered that “the voting should not be by tribes but by centuries, as King Tullius had ordained.”[2525] This statement has often been interpreted to signify the restoration of the earlier form of comitia centuriata. But it seems most improbable that, on the point of setting out for a long, distant war, Sulla should think of restoring an organization which had been obsolete for more than a century and a half, and which could have been known to none but antiquarians. With his clear, practical intelligence he could not have failed to see the insuperable difficulty of restoring the ancient definitions of the classes in terms of iugera or even on the later basis of the libral as.[2526] Furthermore no censors were then at hand to undertake the work, and it was altogether unlikely that during his absence any could be elected who would be willing to apply themselves to the revitalization of the antique mummy. Such a measure, too, as Meyer[2527] has pointed out, would place the control of the assembly in the hands, not of the senate, but of the knights, his mortal enemies. It is far more reasonable to suppose that this act transferred the function of ratifying laws from the tribal to the centuriate comitia, to restore the arrangement supposed to have been introduced by Servius Tullius.[2528] If this reasoning is correct, the act under consideration totally abolished the legislative initiative of the tribunes.[2529] The other Cornelian-Pompeian law mentioned by Appian must have applied, accordingly, not to the tribunate but to the other magistracies.[2530] The current interpretation, which involves the theory of a return to the original centuriate system, requires further examination. Its chief basis is the statement of Appian that no law should be brought before the πλῆθος which had not been previously considered in the senate. It is commonly assumed that he uses δῆμος to designate the whole citizen body, and πλῆθος the exclusively plebeian assembly under tribunician presidency. A study of his usage, however, proves that he makes no such discrimination. Δῆμος is ordinarily the people in general, especially as distinguished from the βουλή,[2531] parallel to Livy’s common distinction between plebs and senatus. It is the technical term for the plebs in their tribal comitia under tribunician presidency.[2532] Rarely it signifies the state[2533] with reference to the interest of the people. Πλῆθος, on the other hand, ordinarily denotes the masses, multitude, rabble,[2534] including the crowd gathered not only in a tribunician assembly[2535] but also in the ἐκκλησία (here meaning contio) under the presidency of a patrician magistrate.[2536] But πλῆθος is never technically or officially used to denote any assembly either of the populus or of the plebs. In the passage under discussion Appian’s statement of the Cornelian-Pompeian law is εἰσηγοῦντό τε μηδὲν ἔτι ἀπροβούλευτον ἐς τὸν δῆμον ἐσφέρεσθαι, in which he uses δῆμος according to his custom to designate the popular assembly without specifying whether it is of the populus or of the plebs. In commenting on it he substitutes πλῆθος for δῆμος for the purpose, not of defining the assembly as tribunician, but of contrasting the masses in the assembly with the nobles in the senate: ἐσ τὸ πλῆθος is substantially equivalent to ἐν τοῖς πένησι καὶ θρασυτάτοις used just below; Sulla wished nothing to be submitted to the masses in the comitia centuriata before it had been considered by the senate.
Appian[2537] attributes to Sulla for this early date an attempt to increase the number of senators. “They (the consuls) enrolled three hundred nobles in the senate, which had been reduced in numbers and for that reason had come to be despised.” He does not state, however, by what authority the consuls made this extraordinary adlectio; and it is in fact improbable that the senate had so dwindled. However that may be, the increase did not take permanent effect at this time.[2538] Two other laws of these consuls are briefly mentioned: (1) for planting colonies,[2539] of which nothing is known; (2) a lex unciaria.[2540] The latter may have been a reduction of existing debts by one-twelfth of the principle, or a lowering of the maximal rate of interest to 8⅓ per cent;[2541] or it may have been a general insolvency law, providing for the payment of debts in instalments.[2542] The chief value of these measures, even if we knew them in detail, would be to reveal the idea of their authors; for they were all repealed in the following year on the initiative of the consul L. Cornelius Cinna, probably by a comitial vote.[2543]
Cinna then proposed (1) a renewal of the Sulpician plebiscite for the enrolment of the new citizens and the libertini among all the tribes,[2544] (2) a recall of Marius and the other exiles.[2545] Before these measures could be carried, the consul was driven from Rome and deposed from office by an act of the senate on the motion of Cn. Octavius, the other consul.[2546] This is the only certain instance of the abrogation of the civil imperium known to the history of the republic. Cinna returned at the head of an army; and after taking forcible possession of the city, he carried his law concerning the exiles through the assembly either on his own motion or that of a tribune.[2547] As the senate, reversing its earlier action,[2548] had already legalized the Sulpician provision concerning the distribution of the libertini and the new citizens among the thirty-five tribes,[2549] it was without reënactment carried into effect in 84.[2550] The execution of this measure completed the political unification of Italy. Meantime L. Valerius Flaccus, consul suffectus in 86, to relieve the financial distress, passed a law which compelled creditors to satisfy themselves with one-fourth of the amount due.[2551] In 83 M. Junius Brutus, tribune of the plebs, proposed and carried, as a milder measure of relief, a law for the colonization of Capua.[2552]
Schulze, C. F., Volksversammlungen der Römer, 110-26; Peter, C., Epochen der Verfassungsgesch. der röm. Republik, 141-65; Geschichte Roms, bks. VI, VII. chs. i-iv; Ihne, W., History of Rome, bk. VII. chs. ii-xix; Researches into the History of the Roman Constitution, 161 ff.; Long, G., Decline of the Roman Republic, I. ch. x-II. ch. xxiv; Lange, Röm. Altertümer, iii. 1-146, and see indices s. the various laws; Die promulgatio trinum nundinum, die lex Caecilia Didia und nochmals die lex Pupia, in Kleine Schriften, ii. 214-70; Mommsen, Th., History of Rome, bk. iv; Röm. Staatsr. see index s. the various laws; Ueber das thorische Ackergesetz, in Ber. sächs. Gesellsch. d. Wiss. i (1849). 89-101; Neumann, C., Geschichte Roms, I. chs. ii-v; Ferrero, Greatness and Decline of Rome, I. chs. ii-v; Greenidge, A. H. J., History of Rome, i; The Lex Sempronia and the Banishment of Cicero, in Class. Rev. vii (1893). 347 f.; Greenidge and Clay, Sources for Roman History, 133-70 B.C.; Strachan-Davidson, J. L., ed. Appian, Civil Wars, bk. i, with notes; Weber, M., Röm. Agrargeschichte, 151 ff.; Dreyfus, Lois agr. sous la république Rom. 77-196; Voigt, M., Ueber die staatsrechtliche Possessio und den Ager compascuus, in Abhdl. sächs. Gesellsch. d. Wiss. x (1880). 221-72; Ueber das röm. System der Wege im alten Italien, in Ber. sächs. Gesellsch. d. Wiss. xxiv (1872). 29-90; Babeion, E., Monnaies de la république Rom. i. 69-79; Billeter, G., Geschichte des Zinsfusses im griechisch-röm. Altertum, 155 ff.; Fowler, W. W., Notes on Gaius Gracchus, in Eng. Hist. Rev. xx (1905). 209-27, 417-33; Gaius Gracchus and the Senate, in Class. Rev. x (1896). 278-80; Pöhlmann, R., Zur Geschichte der Gracchen, in Sitzb. d. bayer. Akad. d. Wiss. 1907. 443-93; Oman, C., Seven Roman Statesmen, i-iv; Huschke, Ph. E., Die lex Sempronia und ihr Verhältniss zur lex Acilia repetundarum, in Zeitschr. f. Rechtsgesch. v. (1866). 46-84; Rudorff, A. E., Ad legem Aciliam de pecuniis repentundis latam anno ab urbe condita 631 vel 632, in Philol. u. hist. Abhdl. d. k. Akad. d. Wiss. zu Berlin, 1861. 411-553; Krüger-Brissaud, Hist. d. sources d. droit Rom. 94 f.; Hegewisch, D. H., Geschichte der gracchischen Unruhen; Ahren, E. A. J., Die drei Volkstribunen Ti. Gracchus, M. Drusus, und P. Sulpicius; Nitzsch, K. W., Die Gracchen und ihre nächsten Vorgänger, bks. iii, iv; Blasel, J., Die Motiven der Gesetzgebung des C. Gracchus; Callegari, E., La legislazione di Caio Gracco; Meyer, E., Untersuchungen zur Geschichte der Gracchen, in Festschriften ... der vereinigten Friedrichs-Universität, etc. 1894. Philos. Fak. 79-109; controverted by Schwartz, E., in Göttingische gelehrte Anzeigen, clviii (1896). 792-811; Hesky, R., Anmerkungen zur lex Acilia repetundarum, in Wiener Studien, xxv (1903). 272-87; Brassloff, S., Beiträge zur Erläuterung der lex Acilia repetundarum, ibid. xxvi. 106-17; Hagge, Einige Bemerkungen über die lex Servilia repetundarum; Mühl, F. V., De L. Appuleio Saturnino tribuno plebis; Pappritz, R., Marius und Sulla; Vassis, S., Ζητληματα Ῥωμαϊκά, in Athena, xii (1900). 54-7 (on the Cornelian-Pompeian laws of 88 concerning the assemblies); Lengle, J., Sullanische Verfassung; articles in Pauly-Wissowa, Real-Encycl. i. 426-8: Adsignatio (Kubitschek); 256: (M’.) Acilius Glabrio (Klebs); 584-8: M. Aemilius Scaurus (Klebs); 780-93 Ager (idem); ii. 261-9: Appuleius (Klebs); 2848 f.: Bantia (Hülsen); iii. 1414-21: Calumnia (Hitzig); 1441 f.: Campanus Ager (Kubitschek); iv. 195 f.: C. Coelius Caldus (Münzer); 510-88: Coloniae (Kornemann); v. 407-10: T. Didius (Münzer); articles in Daremberg et Saglio, Dict. i. 133-8: Ager Publicus (Humbert); 1301-21: Colonies Romains (Lenormant); ii. 1346-8: Frumentariae leges (Humbert).