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.

The Roman assemblies from their origin to the end of the Republic · 第 9 / 20 章