CHAPTER XV

COMITIAL LEGISLATION FROM HORTENSIUS TO THE GRACCHI 287-134

I. _An Era of Repose_

287-232

The Hortensian enactment which raised the plebiscite to an equality with the lex and gave the tribunician initiative full constitutional freedom[2003] seems to have been especially calculated to prepare for a splendid outburst of legislative energy. No such result, however, was actually reached. Circumstances prove the leaders of the plebs to have been well satisfied with the political gains thus far made as regards (1) their place in the senate assured them by the Ovinian statute,[2004] (2) their right to the magistracies, confirmed by various laws, (3) the powers of the tribunate and its relation to the senate established by the Hortensian statute. Content with their position as a branch of the widened nobility, inferior neither politically nor socially to the patrician branch, and happy in the enjoyment of authority, they were now as much inclined as the patricians to discourage and to resist further aggression on the part of the plain citizens. Their control of the initiative in legislation was the chief means of forwarding this policy. Their respect for the senate, in which they were now rapidly becoming the dominant party, was such that they were willing to forego the recently acquired privilege of bringing their rogations before the people without the senatorial sanction. But in case a tribune was so bold and so out of harmony with his political peers as to offer an unsanctioned bill, they could count on the intercession of one of his colleagues; if matters came to an extremity, the senate could annul the act after its adoption by declaring it illegal or contrary to the auspices.[2005] Evidently the plebeian nobles were aware, too, that with the increase in the number of citizens and with their dispersion over Italy the assembly had ceased to represent the citizen body, and was failing in ability to grapple with the new and increasingly complex problems of administration created by the widening of the Roman domain.[2006]

Under these new conditions the assemblies continued, it is true, to elect their annual magistrates and to receive appeals from the judicial decisions of the latter, more rarely to declare war or to ratify a treaty. Occasionally they passed a law to increase the number of magistrates or to regulate elections; but for the fifty-five years following the Hortensian legislation, 287-232, there is no record of the enactment of a distinctly administrative law. The silence of history on this point is due not so much to the exceptionally scant sources[2007] as to a lack of comitial activity.

First among the statutes relating to the election of magistrates is to be placed the Maenian plebiscite, adopted in 287 or thereabout, which directed the patres in case of elections, as the Publilian statute had directed them in case of rogations,[2008] to give their auctoritas before the voting began, while the issue was still uncertain.[2009] Blocking the last efforts of the patricians to monopolize the consulship,[2010] the act completed the reduction of the patrum auctoritas to a formality. The sources represent Appius Claudius Caecus as the chief offender whom this law was designed to rebuke. His personality had brought to the censorship an enormous accretion of power which disturbed the constitutional balance. In this period that magistracy assumed also the function of supervising the morals of the citizens.[2011] To check this disproportionate growth a law, probably tribunician, of 265 forbade reëlection to the office.[2012]

The Romans created no more absolutely new magistratus ordinarii. In 267, however, probably by an act of the comitia tributa, they doubled the number of quaestors—from four to eight—in order that the new members of the college might attend to the financial business of the government at various points in Italy.[2013] A second praetor was created in 242,[2014] doubtless by a law, not only for jurisdiction inter peregrinos but also for increasing the number of magistrates available for military commands.[2015] The tresviri capitales, instituted in 289,[2016] were given the rank of magistrate by a plebiscite of L. Papirius, adopted after 242, which directed the urban praetor to elect these officials in the comitia tributa.[2017] In 241 the people, probably in tribal assembly, granted to L. Caecilius Metellus on account of his blindness the privilege of riding to the Curia in a carriage.[2018]

One statute referred to this period[2019] belongs to the domain of private law. The first chapter of the tribunician lex Aquilia provided “that if a slave of another man, or a quadruped of his cattle, be unlawfully slain, whatever within a year is the highest value thereof, that amount the offender shall pay to the owner.”[2020] The second chapter secured the principal stipulator against adstipulators, and the third provided for all other kinds of damage.[2021] It superseded all previous statutes on the subject, including that of the Twelve Tables.

II. _The Flaminian Era_[2022]

232-201

Such is the scant list of legislative acts of the half century following the dictatorship of Hortensius (287-232), none of them as innovating as, for instance, the reform of the comitia centuriata brought about in approximately the same period by the power of the censors alone.[2023] The nobles had a certain degree of reason for feeling secure in their control of the administration. But in this respect they miscalculated. The long war with Carthage, which had diverted the attention of all the citizens from politics, ended without bringing in the wake of victory the usual rewards to the masses. No lands in Sicily were assigned to the citizens, while on their northeastern border the Picene district and the territory recently taken from the Gauls in the neighborhood of Ariminum were reserved by the nobles for their own occupation. Popular discontent at these short-sighted, selfish proceedings found expression in the rogation of C. Flaminius, tribune of the plebs in 232, for the assignment of the lands here mentioned to the citizens who were willing to settle on the frontier.[2024] It was vehemently opposed by the nobility,[2025] and was finally passed without the authorization of a senatus consultum.[2026] From a statement of Cicero[2027] that as long afterward as 228 Q. Fabius Maximus, then consul a second time, was hindering Flaminius from dividing the land, we may infer that the author of the law was elected among the tresviri charged with its administration.[2028] Most of the settlers in that region were assigned to the tribe Velina, probably in pursuance of an article of the Flaminian statute.[2029] The enactment came as a disagreeable interruption to the quiet happiness of the nobles—as a sign that the political battle fought out between comitia and senate in the period ending with the Hortensian legislation was to be renewed with perhaps even greater bitterness. Hence Polybius, echoing the complaints of the nobles, denounces the measure as the first step toward the demoralization of the people.[2030] The lasting hatred felt by the senators for this new and powerful enemy is seen in their refusal to grant him a triumph for military successes he had won as consul in 223. A plebiscite without their authorization gave the desired privilege to the champion of popular rights.[2031] It was probably in this connection—at least we are soon to hear of it for the first time—that an act of the people was made essential to a triumph within the city. Henceforth even when the senate was willing to allow a triumph or an ovation, the person thus honored could not hold imperium in the city on the day of such festival excepting by a comitial lex. Usually in cases of the kind the senate, after voting the privilege, instructed a praetor to request one of the tribunes to bring a rogatio de imperio before the tribes.[2032] The earliest known act of the kind is the plebiscite of 211 which granted the imperium to M. Marcellus, proconsul on the day of his ovation.[2033]

The popular party had not long to wait for an opportunity to retaliate upon the senate for the slight it had offered their champion. On the precedent of the Ovinian law[2034] the people had a right to legislate concerning the honors, privileges, and qualifications of its individual members.[2035] In 219 accordingly the plebiscite of Q. Claudius, known to have been supported in the senate by C. Flaminius alone, who was then censor, prohibited senators and their sons from owning sea-going ships of more than three hundred amphoras capacity.[2036] It was probably an article of this statute which forbade the same class of persons to take contracts from the government, with the reservation of such economically insignificant agreements as concerned worship.[2037] The peasants, whose interests Flaminius represented, opposed the renewal of the war with Carthage, regarding it as a means of extending the field of commerce and speculation of the nobles. This law therefore expresses the determination of the country people that the senatorial families should no longer share the advantages of such wars. From the point of view of the statesman it was the first step toward the separation of the governing class from the commercial class, with a view to guarding against the administration of the government in the sole interest of capital. The result was not all that could be desired; the senatorial families found secret ways of placing a great part of their funds in commercial companies; and in so far as the law was actually effective, it compelled senators to invest money in Italian land[2038]—a proceeding which contributed largely to the economic ruin of the peninsula.

In the administration of finance, which in spite of occasional interference on the part of the comitia remained with the senate, is included the regulation of coinage. The comitia passed few acts relating to the subject. The earliest known to history is the misnamed lex minus solvendi of C. Flaminius, consul in 217, which introduced the uncial standard for the as, making for ordinary use sixteen asses of an ounce weight equivalent to ten old—in other words, to the denarius.[2039] In the payment of soldiers, however, the denarius was still reckoned at ten asses.[2040] Probably the same law regulated the issue of plated silver denarii[2041] and of gold coins.[2042] The debtor’s gain was offset by the actual decrease in the weight of the _as_ to a little more than an ounce before the enactment of the law.[2043] This measure was followed the next year by the plebiscite of M. Minucius, which created the triumviri mensarii, a banking commission for relieving the great lack of money (216).[2044] The board managed some of the financial business of the state,[2045] and undoubtedly did what it could to strengthen private credit, which at this time was at a low ebb.[2046] The next step taken by the comitia was the enactment of a plebiscite within a field properly belonging to the censors under senatorial supervision—the building and repair of public works.[2047] In 212 the act of an unknown tribune, carried through the comitia with the consent of the senate, created three temporary administrative boards—quinqueviri for repairing the defences of the city, triumviri to seek for property belonging to the temples and to register gifts, and another board of three for repairing the temples of Fortune, Mater Matuta, and Hope. These officials were to be elected by the tribes under the chairmanship of the urban praetor.[2048] Nearly related is the plebiscite of 210, which in pursuance of a senatus consultum directed the censors to farm the vectigalia of the Campanian territory.[2049] Evidently in the trying time of the war with Hannibal the senate found it advisable to conciliate the citizens by voluntarily bringing a few administrative measures of the kind before it. All this legislation was due more or less directly to the influence of Flaminius. A succession of sumptuary laws may be likewise traced to his second consulship, 217. The Twelve Tables contained a number of laws relating to funerals, designed to preserve good order and to prevent extravagant expense.[2050] After their ratification the authority of the magistrates and especially of the censors sufficed for the maintenance of good conduct, till in the period of the Punic wars the character of the people began to suffer deterioration, whereupon the assemblies undertook to enact new laws for the enforcement of morality. One of the earliest was the lex alearia, which prohibited the game of dice. Its mention by Plautus makes it prior to 204.[2051] The name of the author is not given; and for that reason we cannot be sure that it was a comitial law.[2052] To the same period belongs the plebiscite of P. and M. Silius concerning weights and measures.[2053] The first comitial sumptuary statute is the lex Metilia (217), probably tribunician, passed under the influence of C. Flaminius and L. Aemilius, who were censors in 220. It prescribed certain rules for the preparation of cloth.[2054] The object, in Lange’s[2055] opinion, was to strike at the luxury of the nobles through the guild of fullers. It was a warning to them, he asserts, which however they failed to heed. If this was indeed the object, the means were surprisingly feeble. The next sumptuary law was the plebiscite of C. Oppius, 215, directed against the luxury of wealthy women. It forbade a woman to wear more than a half ounce of gold or a dress of various colors or to ride in a carriage in a city or town or within a mile of either, excepting when engaged in public worship.[2056] The author must have sympathized with the tendency of Flaminius, and the law was supported, or at least not opposed, by the nobility. Twenty years afterward their best representatives strove in vain to maintain it against the rising tide of wealth and luxury.[2057]

The influence of Flaminius on legislation may be traced still farther. Under the economic distress of the war with Hannibal the plebs began to lapse into clientage to the nobles. In spite of the principle that the patron should accept no honorarium for legal service,[2058] the nobles began by the requisition of gifts to render the commons tributary to themselves.[2059] The chief occasion for these exactions was found in the Saturnalia, which was reconstituted in 217.[2060] To check the abuse the Publician plebiscite mentioned by Macrobius,[2061] undoubtedly of C. Publicius Bibulus, the popular tribune of 209,[2062] prohibited all gifts from the poor to the rich on that festival with the exception of wax candles. It was supplemented in 204 by the plebiscite of M. Cincius Alimentus,[2063] which absolutely forbade gifts and fees for legal service.[2064] The prohibition of a magistrate’s acceptance of gifts for the performance of official duty was undoubtedly included in it.[2065] Moreover it forbade all gifts above a specified amount, but with exceptions in favor of various relatives and benefactors.[2066]

It is not unlikely that the Flaminian age saw the earliest comitial legislation governing judicial procedure in private cases.[2067] Some changes were wrought, too, in family law by popular vote. In early time intermarriage between persons of the sixth degree of kinship was forbidden by usage;[2068] but in the period between the first and second Punic wars the right was extended to relatives of the fifth and sixth degrees,[2069] and shortly afterward to those of the fourth degree (consobrini).[2070] Another law, the lex Atilia, enacted between 242 and 186,[2071] probably in the second Punic war,[2072] directed the urban praetor to appoint a tutor for a woman or child who was left without a natural protector.[2073] It now became possible, too, for a magistrate under justifying circumstances to place a young man under twenty-five in the care of a curator, in accordance with the Plaetorian law,[2074] which was enacted before 192,[2075] and which belongs therefore to the Flaminian age.[2076]

In the same period we find the comitia active in other fields. In 215 a tribal law of an unknown author granted the citizenship to three hundred Campanian knights who had remained faithful to Rome, and assigned them to the municipium of Cumae.[2077] Following a precedent set by the Antistian plebiscite of 319,[2078] L. Atilius, tribune of the plebs in 210, carried a law, in pursuance of a senatus consultum, for granting the senate absolute power over the Campanians who had revolted;[2079] and the senate accordingly not only punished them with loss of citizenship but reduced them to miserable subjection.[2080] The right of the comitia to ratify a vow of a sacred spring was recognized in 217 by an opinion rendered by the pontiffs,[2081] and was first exercised through a plebiscite of that year.[2082] The appointment of commissioners for the dedication of temples also belonged to the assembly,[2083] as well as the regulation of religious festivals.[2084] The greatest gain made by the people within the province of religious legislation in the third century B.C. was the provision for electing the pontifex maximus by seventeen tribes drawn by lot from the whole number thirty-five and presided over by a pontiff. This innovation probably belongs to the Flaminian era and certainly to the time before 212, when the first instance of such an election is given.[2085] The act was followed by another, before 209, which authorized the election of the chief curio in the same way.[2086] The object was to take the control of these places from the nobles, who looked upon the great sacerdotal collegia as a main support of their political power.[2087] It was but the beginning of a movement for transferring the appointment of all members of these collegia to the comitia sacerdotum, made up as above described. In the peculiar composition of assemblies of this character we see an attempt to make the gods in some degree coadjutors of the populace in filling the sacred places.[2088]

The assembly was merely exercising a long-recognized right[2089] in the institution of two new praetors in 227, for which we are warranted in assuming a legislative act.[2090] The same observation applies to the increase in the number of elective military tribunes from sixteen to twenty-four in 207,[2091] which was evidently a concession to the commons. As the senate generally attended to the prolongation of the imperium,[2092] the confirmation of a senatorial decree to that effect by an act of the people in 208[2093] was exceptional. Far more radical was the plebiscite of M. Metilius, 217, for equalizing the power of the dictator with that of the master of horse.[2094] This act and the resort to election for filling the office[2095] destroyed the value of the institution.[2096] A violent departure from usage was attempted in 209 by the rogation of C. Publicius Bibulus, tribune of the plebs, for abrogating the proconsular imperium of M. Claudius Marcellus. On this occasion not merely the plebs but all classes attended the assembly, which by an overwhelming vote rejected the proposition.[2097] Three quarters of a century were to pass before a law of the kind could actually carry.[2098]

A plebiscite known to have been in force in the time of the second Punic war[2099] debarred from the tribunate and aedileship of the plebs any person during the lifetime of a father or grandfather who had filled a curule office. As the aim was to free the plebeian officials from the influence of the nobility, exercised through the patria potestas, that they might be in a better position to serve the interests of their constituents, we may reasonably suppose this measure to have passed in the time of Flaminius and under his influence. The tendency was to widen the breach then forming between the nobility and the commons.[2100] The right of the people to dispense from the law was acknowledged by the senate in 217, when, after the destruction of the army at Trasimene and the death of Flaminius, the patres authorized a plebiscite for dispensing the consulars for the remainder of the war from the Genucian plebiscite which forbade reëlection to the same office excepting after an interval of ten years.[2101]

From what has been given above it is clear that Flaminius began a new era in legislation, by no change in the constitution, but rather by assuming the free initiative granted the tribunes of the plebs through the Hortensian statute. Under the influence of his personality the comitia recovered the share in the administration which they had lost in the half century of lethargy just passed, and even made new inroads into the province of magisterial and senatorial authority. While the disaster at Cannae, following hard upon that of Trasimene, subdued the rising spirit of popular independence, it made the senate more conciliatory,[2102] with the result that neither did the comitia lapse into its former repose nor did the nobles lose their hold on the government. It was to this era, more definitely to the opening of the war with Hannibal, that the description of the constitution by Polybius[2103] applies. The political condition of Rome was improving,[2104] or was just at its zenith.[2105] As the senate was at the height of its power, public measures were deliberated upon, not by the many, but by the best men.[2106] Political life was sound, elections were pure, and a scrupulous fear of the gods remained the strongest support of the commonwealth.[2107] At this epoch the three chief constitutional elements—magistrates, senate, and comitia—were so perfectly balanced that even a native would hardly be able to say whether the form of government was monarchy, aristocracy, or democracy.[2108] In this equilibrium of forces, in this mutual power of checking or strengthening, lay the might and the excellence of the constitution.[2109]

It is solely with the place of the assemblies in this system that we are at present concerned. Inasmuch as the consuls were supreme masters of the home administration, as well as of the actual conduct of war,[2110] and as the senate controlled finance, diplomacy, and all interstate judicial business affecting the Italian allies,[2111] what part in the government could have been left to the people? Polybius answers a most weighty part. They are constitutionally the sole fountain of honor and punishment, by which alone governments and societies are held together. Not only are they in a position to discriminate between the fit and the unfit in elections to office, but they are the sole court for trying cases involving life and death. The death penalty, however, may be avoided by voluntary exile, if undertaken before a majority has been reached in the process of voting.[2112] Even finable actions in which the proposed penalty is considerable, especially when the accused has held a higher magistracy, come before them. It is they who bestow offices on the deserving—the most honorable reward which the constitution grants to virtue. It is they who have absolute power to decide concerning the adoption or repeal of laws; and most important of all, it is they who deliberate concerning war and peace, and who ratify or reject proposals for alliances, truces, and treaties.[2113] These facts might lead one to suppose that the supreme power is with the people and that the government is a democracy.[2114] In the domestic administration the consuls are dependent on them for authorizing various kinds of business and are under obligations to execute their decrees.[2115] In war, however distant from home, the consul must still court their favor, to secure their ratification of his arrangements for peace; and on laying down his office he is liable to prosecution before them for maladministration.[2116] Hence he can afford to neglect them no more than he can the senate.[2117]

The senate, too, is dependent upon the people for ratifying all serious penalties imposed by the courts, which are made up of senators.[2118] Similarly in matters directly concerning that body, the people have power to accept or reject proposals for diminishing its traditional authority, for depriving its members of dignities or offices, or even for lessening their means of livelihood.[2119] But the greatest popular restriction upon its authority is the tribunician veto, which can prevent it from passing a decree or even from holding a meeting. As the tribunes are under obligations to carry into effect the decisions of the people and in every way to have regard for their wishes,—for this and for the other reasons mentioned, the senate respects the people and cannot fail to neglect their feelings.[2120]

From the foregoing remarks of Polybius it is clear that in the political theory of his time the will of the multitude when expressed by a comitial act prevailed, in other words that the people were sovereign. Several checks on their action from the side of the senate and magistrates he mentions, especially the absolute power of life and death exercised by the consuls in war over those under their command,[2121] and the control over the citizens wielded by the senate through the management of public contracts and through filling the courts from its own number. But the most important limitation, implied throughout this discussion though never expressly mentioned, is the lack of popular initiative. The people could convene for no business whatever unless summoned by a magistrate. They could consider no other subject than that proposed to them by the president; they could take no part in the deliberation excepting in so far as the president granted permission to individuals; they could merely vote yes or no on the question presented to them.[2122] Notwithstanding the theory of popular sovereignty these conditions prevented the rise of a real democracy; they placed the assemblies under the control of the magistrates, who as a rule, including even the tribunes, were willing ministers of the senate. The bridled masses were rendered more obedient by the disasters of the war with Hannibal, and the nobles were soon to grow arrogant and violent through a surfeit of wealth and power.[2123] Under these new circumstances the docility of the commons made possible the thorough organization of plutocracy on the basis of a democratic theory of government.

III. _The Era of the Completed Plutocracy, based on a Recognition of Popular Sovereignty_

201-134

The period from the close of the war with Hannibal to the tribunate of Ti. Gracchus is marked by no such display of comitial energy as that which characterized either the pre-Hortensian age or the epoch introduced by Flaminius. In return for a spurious freedom and a pretended share in the administration the assembly became the handmaid of the plutocracy.

There was, as usual, some legislation of the old kind concerning magistrates. In 198 the number of praetors was increased to six.[2124] The arrangement was modified by the consular statute of M. Baebius, 181, which provided for the election of four and six on alternate years,[2125] with the object of giving the governors of the Spains a biennial term.[2126] The greedy office-seekers by another statute brought about the repeal of this arrangement in 179.[2127] The only new office was that of the tresviri epulones, instituted by a plebiscite of C. Licinius Lucullus, 196. Their function was to attend to certain religious festivals, especially to the feast of Jupiter held on November 13. The law provided that these officials should wear the toga praetexta just as did the pontiffs.[2128]

A stage in the development of the plutocracy and of its control over the plebeian tribunate is marked by the enactment of the lex annalis of L. Villius, tribune of the plebs in 180. This statute not only fixed the ages at which men might sue for and hold the various patrician magistracies,[2129] but also, developing a custom already in existence, established an interval, evidently of two years,[2130] between consecutive magistracies. The stated object was to curb the greed for office which the young nobles were manifesting[2131] as well as the eagerness of the people to favor such ambitious persons, and for that reason it received the support of Cato.[2132] While it prevented the Scipios and the Flaminini from creating a dynastic oligarchy, by checking the growth of exceptional talent and by subjecting statesmen to a fixed routine of honors and functions it subordinated the individual to the class, and in this way aided the consolidation of the senatorial plutocracy.[2133] To the same period, at all events after 194,[2134] belong the Licinian and Aebutian plebiscites, which prohibited the presiding magistrate from offering as candidates for any extraordinary office himself, his colleagues, and his relations by blood or marriage. This measure, too, was to prevent the formation of governing cliques and dynasties. In 151, the year after the third consulship of M. Claudius Marcellus,[2135] to check the further aggrandizement of this man as well as the rise of similar personalities, a law, supported by Cato,[2136] absolutely forbade reëlection to the consulship.[2137] Cato’s idea may have been to expedite the advancement of novi homines; but so far from accomplishing this object, the measure contributed to the further subordination of the individual to the plutocratic machine.[2138] It may well have been in the same partisan spirit rather than in the interest of political morality that P. Cornelius and M. Baebius Tamphilus, consuls in 181, carried a law ex auctoritate senatus for the prosecution of bribery. It disqualified for office for ten years any person found guilty of influencing an election through bribery or other illegal means.[2139] Probably through this measure the nobles aimed to curb the greed of office in the more ambitious and unscrupulous of their number; but it accomplished nothing, and was followed in 159 by another consular lex de ambitu of Cn. Cornelius Dolabella and M. Fulvius Nobilior, which increased the penalty to death.[2140] Practically the punishment was exile. This law had no more effect than the earlier; and the conduct of the nobles both before and after its enactment proves that they did not intend by it to open the consulship to the competition of novi homines.

The limitation upon the judicial imperium of magistrates and promagistrates by the three Porcian laws of appeal, which belong to this period, has been considered in connection with popular jurisdiction.[2141] The last of these acts affected the administration of the provinces and of military affairs, which belonged originally to the magistrates and the senate. It was only by degrees that the people interfered in this department. The earliest known act of the kind was the consular lex de sumptu provinciali of M. Porcius Cato, 195, for limiting the expenses of provincials in the support and honor of the governor.[2142] To prevent conflicts in the provinces between the incoming and the retiring governor, Cato favored a regulation, adopted probably in 177, whether a lex or a senatus consultum has not been determined, to the effect that the imperium of the outgoing functionary should cease on the arrival of the new.[2143] It was still more unusual for the people to take part in the organization of a new province; but in 146 a lex Livia, probably tribunician, commissioned P. Scipio Aemilianus, assisted by ten legati, to organize the province of Africa.[2144]

In foreign affairs the assemblies took the same part as in the preceding period; the centuries continued to declare war and the tribes to ratify peace. In 196 the tribunician lex Marcia Atinia compelled the consuls against their will to conclude a treaty with Macedon.[2145] In 149 L. Scribonius Libo, tribune of the plebs, attempted in vain to secure the adoption of a rogation for restoring liberty to the Lusitanians, whom the praetor Servius Galba had treacherously enslaved.[2146] No less characteristic of the age is the consular lex of L. Furius and Ser. Atilius, 136, for surrendering C. Mancinus to the Numantines because without the consent of the senate he had made an unfavorable treaty with them.[2147] The deterioration in the character of Roman generalship and warfare is indicated by a statute of unknown authorship, enacted after 180,[2148] which forbade a triumph to a commander who had not killed at least five thousand of the enemy in a single battle.[2149] The intention of the law, however, which obviously was to prevent commanders from triumphing for fictitious or insignificant victories, was circumvented by falsifications regarding the number of enemies slain or by triumphs on the Alban Mount.[2150]

Whereas before the second century B.C. no mention is made of a comitial act for the founding of a colony, in the beginning of the period now under consideration the function was exercised by the people three or four times in quick succession. In 197 was enacted the tribunician statute of C. Atinius for planting five colonies—Vulturnum, Liternum, Puteoli, Salernum, and Buxentum—on the coast of Italy, each to consist of three hundred families, the execution of the measure to be in the hands of triumviri, who were to hold their office three years.[2151] Not long afterward a plebiscite of Q. Aelius Tubero provided for founding two Latin colonies, one in Bruttium, the other at Thurii, each by triumviri, who likewise held office three years. The measure was authorized by a senatus consultum, 194.[2152] In the same year a tribunician law of M. Baebius Tamphilus provided for the establishment of three Roman colonies.[2153] Mention of colonial legislation by the people then ceases. Although the phenomenon may be due in some cases to the sources, this explanation does not generally hold good, especially as the colonization of the years 189[2154] and 184[2155] is expressly attributed to the senate, and because Velleius[2156] credits that body with the founding of all the colonies from the Gallic conflagration to his own time. Probably before the Gracchi a senatorial decree was issued in every case, and though the commissioners for conducting colonies were as a rule elected by the tribes after 296,[2157] the people were given but a taste of power within this administrative field.[2158]

Early in the second century B.C. we find creditors rioting in usury, unchecked by the various statutes which had been enacted against the evil. They discovered a way of circumventing the law by transferring their securities to citizens of an allied state, who had a right to force the collection of debts under the law of their own community. To put a stop to this kind of fraud the senate decreed that after a stated date allies who lent money to Roman citizens should register the transaction, and that in suits for the collection of such money the debtor should have the privilege of choosing under which law, whether that of Rome or of the allied community, the suit against him should be tried. As the registers provided for the purpose showed that an enormous amount of fraud was still being committed in circumvention of the law and of the senatorial act, M. Sempronius, tribune of the plebs in 193, ex auctoritate patrum proposed and carried a statute which ordered that money lent between a Roman citizen and one of a Latin or other allied state should be collected under Roman law.[2159] This is one of the earliest instances of unfairness introduced by Rome into the private relations between her citizens and those of her allies.[2160]

Family law underwent some modification. A plebiscite of Q. Voconius Saxa, 169,[2161] provided that no citizen assessed at a hundred thousand asses or more should will his property to a woman.[2162] Another article limited to a half of the estate the amount which any legatee, male or female, could receive.[2163] Dowries were regulated by a lex Maenia, which seems to belong to 186.[2164]

In the bestowal of the citizenship the people were unhampered. Doubtless for some time after the Hortensian legislation comitial acts for this purpose were commonly authorized by senatus consulta; but in the year 188 we first hear the enunciation of the principle that the people without the authority of the senate had the power to bestow the ius suffragii on whomsoever they pleased.[2165] The principle was carried into immediate effect by the tribunician statute of C. Valerius Tappo, which without a senatus consultum conferred the right of suffrage on the Formiani, Fundani, and Arpinates, who hitherto had been cives sine suffragio. The determination of the tribe to which new citizens should belong was also provided for by the legislative act of admission.[2166] The citizenship granted in this period continued occasionally to be limited. The Campanians, excluded forever from the rights of the state in 210,[2167] were in 188 placed under the census by a senatus consultum of the preceding year and were given intermarriage probably by a similar act.[2168] In early time, at least before 184, the custom arose of granting to the founders of a colony the right to enroll as citizens a specified number of aliens. The first recorded instance belongs to the year mentioned, in which the poet Ennius received the citizenship in accordance with such a law.[2169] It was by the pretorian comitia tributa that the priestesses of Ceres, who were Greeks from Naples, Velia, or Sicily, were admitted to the citizenship.[2170] Perhaps by the same assembly, at all events by an act of the people, a slave who deserved well of the state was given his liberty, which involved citizenship.[2171] Such grants to single individuals by the people, however, must have been rare.[2172] A Roman taken captive in war, recovered all his rights simply by returning home (postliminium).[2173] But even when an entire community was brought into the state by a single vote, the wording of the law indicates that the inhabitants received the honor as individuals and not in mass.[2174] It was permissible for independent communities and individuals to reject the offer of the franchise,[2175] whereas subjects and partial citizens were compelled to accept it.[2176] From the facts here stated it will immediately appear that after the people had acquired an unconditioned right to extend the Roman franchise, they made little use of the opportunity. The senate could well afford to concede to them a power which they cherished a growing disinclination to use. The expansion of the empire had at length so enhanced the value of citizenship that the masses were unwilling except on the rarest occasions to share its advantages with others.[2177] Any attempt, therefore, on the part of aliens to usurp the rights of the city was resented. In 187 we find the senate appointing the praetor Q. Terentius Culleo extraordinary commissioner for determining by investigation who from the Latin towns had recently usurped the citizenship, and for expelling from Rome those found guilty of the offence.[2178] Soon afterward the people extended their power over such cases; in 177 a second expulsion of the Latins was brought about by a consular law of C. Claudius Pulcher.[2179]

The same spirit prompted the citizens to limit the political rights of freedmen. There can be no doubt that early Rome was as liberal in the treatment of this class as of aliens. From earliest times they had a right to acquire land; and such proprietors were undoubtedly enrolled in the tribes in which their estates were situated.[2180] From the beginning, however, custom deprived them of the ius honorum[2181] and of conubium. The former they acquired along with the other plebeians, although they were less readily admitted to the actual enjoyment of it;[2182] the latter they continued to lack.[2183] They were exempt, too, from ordinary military service.[2184] In time their condition became worse. C. Flaminius as censor in 220, in the interest of the rural plebs,[2185] began arbitrarily to assign all the libertini, whether they had lands or not, to the four city tribes,[2186] doubtless at the same time to the supernumerary centuries of the comitia centuriata.[2187] But the sons of freedmen, themselves originally libertini,[2188] came in time to be looked upon as ingenui, with the same legal rights as the old citizens. This change seems to have been effected by the plebiscite of Q. Terentius Culleo, 189, for compelling the censors to admit to the senate the sons of free parents—undoubtedly those sons of libertini who were born after the emancipation of the father.[2189] The law must have involved the principle of treating such persons as citizens optimo iure, and have therefore required their enrolment in the country tribes, provided they owned land. As the acquisition of full rights came only with the death of the father, which made the son sui iuris, the application of the principle must have required the enrolment of the fathers along with the sons in the rural tribes; in other words, it recognized as citizens optimo iure those libertini who had children,[2190] on the basis of the existing custom of enlisting such persons in military service at crises.[2191] The political connections of the author of this statute leads us to interpret it as a measure of the oligarchs for strengthening their position by the votes of their dependents.[2192]

The increasing wealth and luxury of the age naturally gave rise to sumptuary legislation; and the nobility could allow the comitia to revel in this field, devoid as it was of political significance. The first act, however, was to undo the Oppian law of 215[2193] through the plebiscite of M. Valerius, 195, enacted probably without a senatus consultum.[2194] It was the senate which initiated the tribunician statute of C. Orchius, 181, for limiting the number of guests at banquets.[2195] Cato opposed the enactment of this measure on the ground that it was too easy,[2196] but twenty years afterward he protected it from abolition.[2197] It was reinforced in 161 by the lex cibaria of the consul C. Fannius Strabo, which prescribed that ordinary meals should cost no more than ten asses; on ten days of the month meals should cost no more than thirty; and on the days of the ludi plebeii, Saturnalia, and certain other great festivals, no more than a hundred.[2198] It also forbade the use of fowls excepting one unfattened hen.[2199] The lex Didia cibaria, pretorian or tribunician, 143, extended the application of the Fannian statute to all Italy, and rendered liable to punishment not only the host who violated the law but also the guests at such illegal repasts.[2200]

Closely akin to sumptuary laws are those for the regulation of theatres and games. A plebiscite of Cn. Aufidius of unknown date, possibly 170,[2201] permitted the importation of wild beasts from Africa for use in the circensian games. The statute repealed a senatus consultum which had prohibited such importation.[2202] The arrangement of the social classes in the theatre and at the games was determined partly by law. It was the censors of 194, persuaded by Scipio Africanus the Elder,[2203] who reserved the front seats for senators.[2204] The assignment of fourteen rows to the knights next to those of the senators was effected by a plebiscite, possibly of 146, the author of which is unknown.[2205]

For a long time the laws of the Twelve Tables administered by the magistrates, more rarely by a special court created sometimes by the senate but oftener and in better right during this period by the people,[2206] sufficed for controlling crime. But as offences multiplied in consequence of the increasing complexity of life, the people were called upon more and more frequently to legislate on the subject.[2207] One of the earliest may have been the lex Fabia de plagiariis,[2208] against the usurpation of ownership over a Roman citizen without his consent or over his slave without the consent of the owner.[2209] The date of its origin is unknown; but if Plautus[2210] refers to it, as Voigt asserts,[2211] it must have been in force before 197. For this and other reasons Voigt assigns it to Q. Fabius Verrucossus, consul in 209.[2212] Lange prefers Q. Fabius Labeo, consul in 183,[2213] whereas Mommsen places it after the Social war.[2214] A lex Gabinia threatened with scourging and death any one who induced the people to gather in secret meetings. It seems to belong to the time of the Bacchanalian trouble, 186,[2215] and to have been designed against religious associations of the kind; nevertheless the nobility found in it a means of repressing popular agitation.

On the authority of a mutilated passage in the newly found epitome of Livy an attempt has been made to assign to 149 the law of M. Scantinius (or Scatinius), probably tribune of the plebs, for imposing a fine of ten thousand sesterces on any one convicted of violating a man of free birth.[2216]

The statute which established the first standing court—quaestio perpetua—was the lex Calpurnia de repetundis of the tribune L. Calpurnius Piso Frugi, 149.[2217] His motive was undoubtedly a sincere desire to protect Italy[2218] and the provinces from official rapacity. The court was made up of a considerable number of jurors drawn from the senate and presided over by a praetor, who had hitherto exercised civil jurisdiction only. In fact a trial for extortion was at first thought of as a civil suit for the recovery of wealth illegally taken—a conception which determined the organization of the Calpurnian quaestio. But from time to time new standing courts were instituted each with cognizance of a specified class of crimes, till before the end of the republic they had taken upon themselves practically all criminal jurisdiction, retaining little trace of their civil origin.[2219] Between 149 and 141, for instance, was established a standing quaestio for the trial of cases of murder.[2220]

It was in keeping with the oligarchic tendency of the age that a consular law of M’. Acilius Glabrio, 191, gave the pontiffs the function of determining which years should be intercalary and of how many days such years should consist. Thus these functionaries secured the means of bringing the solar and civil years into accord; but they used their new power mostly in the interests of their party, with the result that the confusion in the calendar increased rather than lessened.[2221] The nobles made their greatest gain in the control of legislation and of elections about the middle of the century through the statutes of Aelius and Fufius, probably tribunes of the plebs. By granting the patrician magistrates the obnuntiatio against the tribunes, or perhaps by confirming the former in a usurped power of the kind, it enabled the nobles to exercise a practical veto on tribunician legislation, and may for that reason be looked upon as the firmest support of the plutocracy.[2222] An article of the statute forbade the bringing of a rogation before the people in the interval between the announcement and the holding of elective comitia.[2223]

Toward the close of the period a democratic movement preliminary to the revolution began with the enactment of two important ballot laws. The first was the plebiscite of Q. Gabinius, 139, whom the optimates took pleasure in representing as ignoble and mean.[2224] It introduced the ballot in elections with a view to freeing the voter from the influence of the nobility; for many of the poor were at this time falling into economic, and hence political, dependence on the rich.[2225] The other was the plebiscite of L. Cassius Longinus Ravilla, 137, for extending the use of the ballot to all trials before the people with the exception of perduellio.[2226] Cases coming under the law were those which involved fines imposed by the tribes under aedilician or tribunician presidency. Probably in the opinion of the author, a conscientious noble,[2227] cases of perduellio were too rare to need the change or too solemn to admit of a disturbance of traditional usage. These measures had little immediate effect, for the nobles were as clever as the commons at exploiting the secret ballot for partisan objects[2228]; yet the principle, when carried to completion by the supplementary laws on the subject in the years immediately following, contributed greatly to the success of the revolution.[2229] Not without significance for the general trend of affairs is the circumstance that in these latter years of the completed plutocracy two dispensations were granted P. Scipio Aemilianus from laws which had been designed to secure it against the rise of great personalities. In 148 when he offered himself for the aedileship, being still too young for the consulship,[2230] the people insisted on electing him to the latter office. “When the consuls showed them the law they became more importunate and urged all the more, exclaiming that by the laws handed down from Tullius and Romulus the people were judges of the elections, and of the laws pertaining thereto they could set aside or confirm whichever they pleased.[2231] Finally one of the tribunes of the people declared that he would take from the consuls the power of holding an election unless they yielded to the people in this matter. Then the senate allowed the tribunes to repeal this law and after one year they reënacted it.”[2232] From this event it can be seen that when the tribunes and people were unitedly determined upon a measure, they were irresistible. It is evident, too, that in popular theory no laws could prevent the citizens from having the magistrates whom they chose to elect. Again in 135 a plebiscite, authorized by a senatus consultum, granted more speedily on this occasion though doubtless with as great regret, exempted him from the law which absolutely forbade reëlection to the consulship.[2233] It was equally ominous that in the preceding year the proconsulship of M. Aemilius Lepidus was abrogated, probably by an act of the comitia.[2234]

Another premonition of the revolution was the renewal of agrarian agitation, with which in a varying degree some of the more enlightened nobles sympathized. It began slowly to dawn upon them that the economic ruin of the peasant class was endangering the state—a feeling which found expression in the agrarian rogation of C. Laelius, praetor in 145.[2235] The measure must have been similar to the Licinian-Sextian law as it threatened the interests of the rich.[2236] When he saw that their opposition would be such as to disturb the public peace, he dropped the proposal. If he was in truth called Sapiens because of this speedy retreat, the epithet was too easily earned. Reform, while there was yet time, was blocked as much by the cowardice of the well-minded as by the enormous selfishness of the majority of nobles. It was in this time of extraordinary imperial prosperity that, in the opinion of Polybius, the constitution was successfully put to its severest test. “When these external alarms are past, and the people are enjoying their good fortune and the fruits of their victories, and, as usually happens, growing corrupted by flattery and sloth, show a tendency to violence and arrogance—it is in these circumstances more than ever that the constitution is seen to possess within itself the power of correcting abuses. For when any one of the three classes becomes puffed up, and manifests an inclination to be contentious and unduly encroaching, the mutual interdependence of all the three, and the possibility of the pretensions of any one’s being curbed and thwarted by the others, must plainly check this tendency; and so the proper equilibrium is maintained by the impulsiveness of the one part’s being checked by its fear of the other.”[2237] These words, which we may suppose to have been written after the tribunate of Ti. Gracchus,[2238] accurately describe the interplay of constitutional forces in the period of the completed plutocracy and of the incipient revolution. Controlled in some instances by self-satisfaction and the spirit of repose and in others by greed and arrogance, the dominant institutions of government tended in the one case to sluggishness and decay, in the other to violence; whereas the harmony of the constitution, or its equivalent the soundness of Roman character, like a central sun, held the various institutions in the main to their respective orbits, compelling each to attend to its appropriate function. No retrospect of the Gracchan troubles induced the great historian to revise the view here expressed; for with his boundless faith in Rome he could never doubt that her constitution contained the cure of every evil which new conditions should breed within the state.[2239]

Schulze, C. F., _Volksversammlungen der Römer_, 100-10; Peter, C., _Epochen der Verfassungsgesch. der röm. Republik_, 118-140 (on the general character of the period); Ihne, W., _History of Rome_, bk. vi; Long, G., _Decline of the Roman Republic_, I. chs. v, vii, viii; Mommsen, Th., _History of Rome_, bk. III, ch. xi; _Röm. Staatsrecht_, see index s. the various laws; Lange, L., _Röm. Altertümer_, ii. 116-351, and see index s. the various laws; _De legibus Aelia et Fufia commentatio_, in _Kleine Schriften_, i. 274-341; Neumann, C., _Geschichte Roms_, I. ch. i; Nitzsch, K. W., _Die Gracchen und ihre nächsten Vorgänger_, bks. i, ii; Willems, _Droit public Romain_, 178 ff.; Mispoulet, J. B., _Les institutions politiques des Romains_, I. 220 ff.; Hallays, A., _Les comices à Rome_, 67 f.; Maranca, _Il tribunato della plebe dalla lex Hortensia alla lex Cornelia_; Arndts, _Die lex Maenia de dote vom Jahr der Stadt Rom 568_, in _Zeitschr. f. Rechtsgesch._ vii (1868). 1-44; Voigt, M., _Die lex Maenia de dote vom Jahre 568 der Stadt_; _Die lex Fabia de plagiariis_, in _Verhdl. d. sächs. Gesellsch. d. Wiss._ xxxvii (1885). 319-345; Savigny, F. C. von, _Lex Cincia de donis et muneribus_, in _Vermischte Schriften_, i. 315-85; _Ueber die lex Voconia_, ibid. i. 407-46; _Schutz der Minderjährigen und die lex Plaetoria_, ibid. ii. 321-95; Garofalo, F. P., _Lex Cincia de donis et muneribus_, in _Bull. dell’ ist. di diritt. Röm._ xv (1903). 310-2; Krüger, P. and Mommsen, Th., _Anecdoton Livianum_, in _Hermes_, iv (1870). 371-6; Babelon, E., _Monnaies de la république Rom._ i. 37-69; Hill, G. F., _Greek and Roman Coins_, 44 ff.; Haeberlin, E. J., _Del più antico sistema monetario presso i Romani_, V, in _Rivista Italiana numismatica e scienze affini_, xix (1906). 611-46; Cunz, O., _Polybius und sein Werk_; Pais, E., _L’elezione del pontefice massimo Romano per mezzo delle_ XVII _tribù_; articles in Pauly-Wissowa, _Real-Encycl._ i. 576-80: L. Aimilius Paullus (Klebs); ii. 2728 f.: Baebius (idem); iii. 2738-55: M. Claudius Marcellus (Münzer); iv. 1112-38: Consul (Kübler). Grenfell, B. P., and Hunt, A. S., _Oxyrhynchus Papyri_, iv (1904). 90-116 for the newly discovered epitome of Livy, including text and commentary. The lost books xlviii-lv, covering the years 150-137, are represented. See also Kornemann, E., _Die neue Livius-Epitome aus Oxyrhynchus_, in _Beitr. zur alt. Gesch._ Beiheft ii (1904); Sanders, H. A., _The Oxyrhynchus Epitome of Livy_, in _Trans. of the Am. Philol. Assoc._ xxxvi (1905). 5-31, and a brief notice by Liebenam, W., in _Jahresb. d. Geschichtswiss._ xxvii (1904). 124 f.

##