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.