THE JUDICIAL FUNCTIONS OF THE COMITIA TRIBUTA FROM 287 TO THE END OF THE
REPUBLIC
I. _Tribunician Jurisdiction_
Whereas the sources assume that the tribunes of the plebs as early at
least as the decemviral legislation had cognizance of both finable and
capital cases,[1925] an examination of the recorded trials leads to
the conclusion that they made little use of this power till the period
between the legislation of Publilius Philo (339) and that of Hortensius
(287).[1926] Whether their activity after 339 was due to the Publilian
enactment of that year[1927] or merely to the gradual evolution of
popular rights cannot be determined. However that may be, it was not
till after the Hortensian legislation that we find the tribunician
jurisdiction at its highest point of development and free from every
restriction.[1928]
The capital actions brought by the tribunes before the centuries in the
period from Hortensius to the end of the republic have already been
reviewed.[1929] We have now to consider the finable cases brought before
the comitia tributa in the same period. It is characteristic of the era
immediately following the Hortensian legislation, 287-232, described
in the following chapter as politically stagnant,[1930] that only one
tribunician prosecution is mentioned, and that against the consuls
of 249 for contempt of the auspices. Appius Claudius Pulcher, one of
the consuls, was fined a hundred and twenty thousand asses, after the
action had been transferred from the centuries to the tribes in the way
described in an earlier chapter.[1931]
In accord with the spirit of the Flaminian era, 232-201, on the other
hand, is the prosecution of the retired consuls, M. Livius Salinator
and L. Aemilius Paulus, on the ground that they had unjustly distributed
the booty gained in war. Technically the charge seems to have been
peculatus;[1932] it was brought before the tribes in 218, doubtless by
tribunes of the plebs. Aemilius narrowly escaped condemnation; Livius
was fined. The popular feeling against them was extremely bitter.[1933]
In 214 M. Atilius Regulus and P. Furius Philus, censors, degraded to
the condition of aerarius[1934] L. Caecilius Metellus,[1935] who after
the battle of Cannae had tried to persuade the knights to abandon
Italy.[1936] He was elected tribune of the plebs for the following year,
and made use of his office in an attempt to prosecute the censors before
the close of their administration. His purpose was thwarted, however,
by the intercession of the remaining nine tribunes,[1937] who in this
way saved for a time a conservative principle of the constitution—the
inviolability of the magistrate from prosecutions while in office.[1938]
The trial of Postumius the publican, beginning in a finable action and
ending as perduellio, has been treated elsewhere.[1939] In the same
period falls the trial of the tresviri nocturni for appearing too late at
a fire. They were accused by the tribunes and condemned by a vote of the
tribes.[1940]
The era of the full-grown plutocracy, 201-134, is characterized by the
great number of prosecutions of eminent persons for political objects.
M. Porcius Cato was several times brought to trial for the conduct of
his consulship, 195, with the result that the speeches delivered in his
own defence filled a volume.[1941] In 189 M’. Acilius Glabrio, then
candidate for the censorship, was accused of peculatus of booty by two
tribunes in a finable action of a hundred thousand asses. The crime was
alleged to have been committed in the preceding year, when as proconsul
the accused gained over the Aetolians and Antiochus a victory by which he
won the right to a triumph.[1942] Cato, formerly his military tribune and
now a competitor for the censorship, appearing as a witness, delivered
at least four speeches against him. These proceedings forced Acilius to
drop the candidacy, whereupon the accusation was withdrawn.[1943] The
attack upon this man is to be regarded as a manoeuvre of Cato and his
supporters against his political adversaries, the Scipios, who numbered
the accused among their friends. In 185 Cato was ready for a direct
assault. In that year two of his supporters, both named Q. Petillius,
tribunes of the plebs, made in the senate at his instance a demand that
L. Scipio Asiagenus[1944] should render an account of the three thousand
talents paid him as war indemnity by Antiochus among the conditions of
peace. His brother Publius, knowing well that the blow was in reality
aimed at himself, resolved to measure his full strength with that of his
adversaries. When accordingly the record of the transaction was produced,
Publius, complaining that an account of three thousand talents should
be demanded of a man who had brought fifteen thousand into the treasury
from booty, tore the document in pieces.[1945] In this proceeding he
kept strictly within his legal rights.[1946] Nothing further seems to
have been accomplished for the present;[1947] but M. Naevius, tribune
of the plebs, after entering office December 10, 185, brought against
Publius Scipio a prosecution, not for peculatus, but for official
misconduct. The specific charge was that in return for the restoration
of his son from captivity he, as legatus of his brother, had granted too
favorable terms of peace to Antiochus. In the first contio the accused
recited his services to the state; in the second, which happened to
fall on the anniversary of his victory over Hannibal, he invited the
people there assembled to go with him to the Capitoline temple to give
thanks to Jupiter, Juno, Minerva, and the gods who kept the place, for
having endowed him with the will and the ability to achieve that and
other similar deeds in behalf of the commonwealth.[1948] Naturally the
dissolution of the assembly vexed the tribunes. Before the day came for
the third contio he withdrew from Rome. His brother tried to excuse his
absence on the plea of sickness, and Ti. Sempronius Gracchus, tribune of
the plebs, prevented his colleagues from causing further annoyance to
the great man. The general circumstances indicate that the trial was to
take place before the tribes, and that the penalty in case of conviction
was accordingly to be a fine. His brother was still in danger. Early in
184 C. Minucius Augurinus brought a finable action[1949] against Lucius
concerning the money received from Antiochus.[1950] He was condemned
by the tribes, whereupon the prosecutor demanded surety (praedes) for
the payment of the fine. But when Scipio failed to comply, the tribune
attempted to imprison him. Returning suddenly to Rome, Publius appealed
to the tribunes in behalf of his brother. Whereas eight members of the
college sustained the prosecutor, one of them, Ti. Gracchus, prevented
the imprisonment and consequently the collection of the fine.[1951] But
the total result of the proceedings was the overthrow of the Scipios,
and the conqueror of Hannibal retired heart-broken to his country
estate.[1952]
In the same year, 184, M. Porcius Cato, at that time censor, was
prosecuted for official misconduct by tribunes in a finable action for
two talents, but was in all probability acquitted.[1953] In this period
the tribes must have been unusually active in a judicial capacity,[1954]
as Cato was himself prosecuted forty-four times, often doubtless before
the comitia tributa, but was always given a favorable verdict.[1955]
C. Lucretius, praetor in 171, was accused in the senate by Chalcidian
ambassadors of merciless cruelties and robberies perpetrated by him on
their community. Thereupon two tribunes of the plebs, M’. Juventius
Thalna and Cn. Aufidius, prosecuted him before the people, technically on
a charge of furtum and iniuria. He was condemned by all the tribes to a
fine of a million asses.[1956] But after 149 most cases of misgovernment
in the provinces came before the quaestio repetundarum instituted in that
year.[1957] There were occasional prosecutions for beginning war without
authorization.[1958] Toward the end of the pre-Gracchan oligarchy C.
Laelius Sapiens, the friend of Scipio Aemilianus, seems to have been
brought to trial for malversation in his consulship of the year 140, but
was probably acquitted.[1959] A peculiar case, yet characteristic of
the time, was that against Cn. Tremellius, praetor in 160, for having
“contended injuriously” with the supreme pontiff. It is stated merely
that he was fined. If the action came before the people, it must have
been brought by a tribune, as the pontiff’s jurisdiction was restricted,
so far as is known, to the sacerdotes under his supervision. Whatever may
have been the procedure, the effect was to place the religious official
above the magistrate[1960]—a policy which could be expected of the
generation that adopted the Aelian and Fufian laws.[1961]
Several prosecutions in the era extending from the Gracchi to Sulla
partake of the revolutionary nature of the time. The inconsistency in the
position of Ti. Gracchus, who depended on the sanctity of the tribunate
while technically violating it in the person of his colleague Octavius,
is illustrated by his attack on T. Annius Luscus. The latter, a man of
consular rank, challenged Tiberius in the senate to answer definitely
whether or not he had branded with infamy a brother tribune whom the law
declared sacred and inviolable. The senators applauded the challenge; but
Tiberius, hurrying from the Curia, convoked the plebs, and ordered Annius
to come forward and defend himself against the charge of violating by
his words the tribunician sanctity. Before the proceedings could begin,
Annius by permission asked his accuser: “If you intend to deprive me of
my rank and disgrace me, and I appeal to a colleague of yours, and he
comes to my support, and you thereupon lose your temper, will you deprive
him of his office?” Plutarch, who tells this story, alleges further that
Tiberius, not knowing what to reply, dismissed the assembly and withdrew
his accusation.[1962] But the fact that Annius made a speech against
Tiberius[1963] indicates that the proceedings went farther. Evidently
the accused in some way escaped condemnation. The same political
significance attaches to the tribunician capital prosecutions of the
time, mentioned in an earlier chapter.[1964] No more actions, however,
are known to have been brought by the tribunes before the tribes till
103,[1965] when Cn. Domitius Ahenobarbus, a popular tribune of the plebs,
author of the famous statute concerning the election of sacerdotes,[1966]
prosecuted M. Junius Silanus for misconduct as consul in 109. The
charge was that he had begun war on the Cimbri without an order of the
people. Notwithstanding the stigma of defeat borne by the accused, he
was acquitted by thirty-three of the thirty-five tribes.[1967] In the
same year Domitius prosecuted M. Aemilius Scaurus for having as consul
neglected the sacra of the di Penates at Lavinium. The accused was
acquitted by the votes of thirty-two tribes.[1968] These prosecutions,
together with the plebiscite just mentioned, excited against Domitius an
antipathy among the optimates which reveals itself in the sources but
which his character hardly deserved.[1969]
Another popular tribune, C. Appuleius Decianus, 98, brought against P.
Furius the accusation that in the preceding year the latter as tribune
of the plebs had betrayed the people’s cause. Acquitted of that charge,
he was accused later in the year by C. Canuleius, another tribune, on
the ground that he had impeded the return of Metellus.[1970] In one of
the contiones for the trial of this case the citizens would not listen
to the defence of the accused but tore him in pieces. In the same year
Appuleius prosecuted L. Valerius Flaccus, curule aedile, on what charge
is unknown. His own condemnation to exile, more probably by the centuries
than by a quaestio, on the ground that in his accusation of Furius he
lamented the death of Appuleius Saturninus, his gentilis, is mentioned in
an earlier chapter.[1971]
Sulla’s completion of the system of standing courts and his restriction
of the tribunician function of prosecution[1972] substantially withdrew
all judicial power from the tribal assembly under the presidency of
tribunes. The overthrow of the Cornelian constitutional arrangements left
the standing courts with jurisdiction unimpaired. Though constitutionally
the tribunes by this overthrow regained their right to prosecute, they
exercised it rarely and feebly during the remainder of the republic. C.
Memmius, tribune of the plebs in 66, brought M. Terentius Varro Lucullus
to trial for what he had done long before in his quaestorship at the
dictation of Sulla. As the motive was evidently personal, the accused was
acquitted.[1973] Early in 58 L. Antistius, tribune of the plebs, in the
interest of the optimates threatened to prosecute C. Julius Caesar, who
had just retired from his consulship and was on the point of setting out
for his provinces. Caesar appealed to the other tribunes, who suspended
the prosecution on the ground that the accused was to be necessarily
absent in the service of the state.[1974] In the year 44 C. Epidius
Marullus and L. Caesetius Flavius, tribunes, instituted proceedings
against the man who took the lead in acclaiming Caesar king as he was
returning from Alba. The evident displeasure of Caesar at the accusation
caused its withdrawal.[1975] In incomplete trials, like those last
mentioned, it is seldom possible to determine whether they were to come
before the centuries or the tribes.[1976]
II. _Aedilician Jurisdiction_
Before the Hortensian legislation the curule and plebeian aediles alike
had cognizance of usury, stuprum, and violation of the law concerning
the limitation of occupation and pasturage of the public lands.[1977]
In the period now under consideration, beginning in 287, they continued
to exercise the same function besides taking upon themselves some
new cases. Aedilician actions for violation of the pasturage clause
of the Licinian-Sextian statute took place in 240,[1978] 196,[1979]
and 193.[1980] Closely related is the fining of usurers in 192,[1981]
and of grain dealers for cornering the market in 189.[1982] In 157 C.
Furius Chresimus was prosecuted by a curule aedile for injuring the
crops of others by magic, and the case came before the tribes in the
Forum. By bringing his farm tools into the assembly and calling them his
instruments of magic he induced the citizens to vote his acquittal.[1983]
There are several known cases of criminal lust which fell within the
aedilician cognizance. In 227 C. Scantinus Capitolinus during his term of
office as tribune or aedile of the plebs was prosecuted by M. Claudius
Marcellus, curule aedile, on a charge of attempted paederastia. He called
attention to the sanctity of his person; but as the tribunes refused
to protect him on that ground, he was condemned by the people.[1984]
Most of the known cases of this general character were against women.
Several matrons, accused of stuprum by the plebeian aediles of 213
and fined by the comitia tributa, retired into exile.[1985] About the
time of the war with Hannibal a charge of incest, based on the fact of
intermarriage between close relatives and brought doubtless by an aedile,
was judged favorably to the accused by the people.[1986] The curule
aedile A. Hostilius Mancinus, 183, brought to trial before the tribal
assembly Manilia, a courtesan, who, he alleged, had thrown a stone at him
in the night and had wounded him. Manilia, appealing to the tribunes,
explained that he was attempting violently to break into her house,
when she repulsed him with stones. Thereupon the tribunes decreed that
the prosecutor deserved the treatment he had received. They interceded
against his action, which accordingly had to be dropped.[1987]
One case of perduellio under aedilician jurisdiction is recorded. In
246 Claudia, sister of that P. Claudius Pulcher who lost his fleet off
Drepanum,[1988] was jostled by the crowd as she came from the games.
She was heard to say on this occasion that she wondered what would have
happened to herself, had her brother not caused the death of so many of
the citizens, and to wish that he were again living, to lose another
fleet together with the crowd that troubled her. For these words she was
brought to trial by the aediles of the plebs, and the people imposed
on her a fine of 25,000 heavy asses.[1989] The case is described as a
iudicium maiestatis apud populum Romanum.[1990]
The jurisdiction of the aediles as well as that of the tribunes suffered
from the growth of standing courts.[1991] The fact that the power
remained, provided the holder was in a position to use it, is proved by
the occasional recurrence of a prosecution in the lifetime of Cicero.
First may be mentioned the proceedings instituted by C. Flavius Fimbria,
aedile in 86, against Q. Scaevola. Evidently the case did not come to
vote.[1992] Interesting is the threat of Cicero[1993] as curule aedile to
bring to trial before the people C. Verres and all who should by bribery
aid his acquittal. The circumstance that Cicero was ready to place so
great a function upon the aedileship is proof of the confusion into
which the ideas of popular jurisdiction had fallen through infrequent
use.[1994] Another anomaly is the prosecution begun by P. Clodius against
T. Annius Milo on the charge of violence (vis).[1995] It took place in
the Forum before the comitia tributa, but we do not know whether it came
to a vote.
III. _Pontifical Jurisdiction_
In the exercise of his disciplinary power the supreme pontiff sometimes
imposed a fine on a sacerdos under his authority. An appeal to the
thirty-five tribes was allowed, if the amount of the penalty reached the
appealable limit.[1996] After the analogy of the civil magistrate the
pontiff presided over the assembly during the trial.[1997] In 189 Q.
Fabius Pictor, who was at the same time praetor and flamen Quirinalis,
was forbidden by the supreme pontiff to go to the province assigned
him. After much contention the pontiff imposed a fine, and an appeal
was taken to the people, who decided that the flamen must obey the
pontifex maximus, and on that condition remitted the fine.[1998] In 180
L. Cornelius Dolabella was fined for refusal to resign his office of
naval duumvir that he might be inaugurated rex sacrificulus. The case
was decided as the preceding, but an unfavorable omen which dissolved
the assembly deterred the pontiffs from inaugurating him.[1999] A
similar case occurred in 131.[2000] In the appeal of Claudius, an
augur, from a pontifical fine, the date of which is unknown, though it
probably followed the trials above mentioned, the people sustained the
accused.[2001] These are the few recorded cases of appeal from sacerdotal
jurisdiction. The moderation of the pontifex maximus, together with the
respect of his sacerdotes for religion, usually served to prevent the
need of recourse to the people. It is a noteworthy fact that the custom
was practically conterminous with the era of the most highly developed
plutocracy. The circumstance that in all the cases known to have fallen
within this period the people confirmed the authority of the pontiff
affords striking evidence of the perfection to which the optimates had
now brought the religious machinery of their political system.[2002]
From what has been said on the judicial functions of the comitia in this
and earlier chapters, it is clear that the jurisdiction of the people is
inseparably connected with the political and constitutional history of
Rome. Beginning feebly in the early republic, the right of appeal was
most intensely exercised from the middle of the third to the middle of
the second century B.C. Its decline thereafter, owing mainly to the rise
of the quaestiones, was a symptom of the general decay of the republic.
Peter, C., _Epochen der Verfassungsgesch. der röm. Republik_,
118-140 (on the general character of the period); Ihne, W.,
_History of Rome_, iv. 125 ff., 171-3, 321-32; Mommsen, _Röm.
Staatsrecht_, ii. 317-27, 491-7; _Die Scipionenprocesse_, in
_Röm. Forsch._ ii. 417-510; Lange, _Röm. Altertümer_, ii.
582-93; Herzog, _Gesch. u. Syst. der röm. Staatsverfassung_,
i. 811 f., 1177 f.; Greenidge, A. H. J., _Legal Procedure of
Cicero’s Time_, 327-66; Mispoulet, J. B., _Les institutions
politiques des Romains_, i. 228 f.; Willems, _Droit public
Romain_, 175 ff.; Girard, P. F., _Histoire de l’organisation
judiciaire des Romains_, i. 235 ff.; Hallays, A., _Comices à
Rome_, 70 f.; Stella Maranca, _Il tribunato della plebe dalla
lex Hortensia alla lex Cornelia_; Gerlach, _De vita P. Cornelii
Scipionis Africani Superioris_; _P. Cornelius Scipio Africanus
der Aeltere und seine Zeit_; Nissen, _Kritische Untersuchungen
über die Quellen der vierten und fünften Dekade des Livius_,
213 ff.; Bloch, G., _Observations sur le procès des Scipions_,
in _Revue des études anciennes_, viii (1906). 93-110, 191-228,
287-322; Pascal, C., _Studi Romani_, i: _Il processo degli
Scipioni_; ibid. iii: _L’Esilio di Scipione Africano Maggiore_;
_Di un studio recente sul processo degli Scipioni_, in _Riv. d.
storia ant._ iv (1899). 268-71; Niccolini, G., _La questione
dei processi degli Scipioni_, ibid. iii. fasc. 4 (1898). 28-75;
articles in Pauly-Wissowa, _Real-Encycl._ i. 448-64: Aedilis
(Kubitschek); 584-8: M. Aemilius Scaurus (Klebs); iv. 702-5:
Comitia, part of (Liebenam); 1462-70: P. Cornelius Scipio
Africanus Major (Henze); 1471-83: L. Cornelius Scipio Asiagenus
(Münzer); v. 1324-7: Cn. Domitius Ahenobarbus (ibid.);
Daremberg et Saglio, _Dict._ i. 95-100: Aedilis (Humbert); see
also ibid. s. Comitia.