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.
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