[i]

THE ROMAN ASSEMBLIES

[ii]

THE MACMILLAN COMPANY
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MACMILLAN & CO., Limited
LONDON. BOMBAY. CALCUTTA
MELBOURNE

THE MACMILLAN CO. OF CANADA, Ltd.
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[iii]

THE
ROMAN ASSEMBLIES

FROM THEIR ORIGIN TO THE END
OF THE REPUBLIC

BY
GEORGE WILLIS BOTSFORD
PROFESSOR OF HISTORY IN COLUMBIA UNIVERSITY
AUTHOR OF “THE DEVELOPMENT OF THE ATHENIAN CONSTITUTION,”
“A HISTORY OF GREECE,” “A HISTORY OF ROME,”
“AN ANCIENT HISTORY,” ETC.

New York
THE MACMILLAN COMPANY
1909
All rights reserved

[iv]

Copyright, 1909,
By THE MACMILLAN COMPANY.

Set up and electrotyped. Published September, 1909.

Norwood Press
J. S. Cushing Co.—Berwick & Smith Co.
Norwood, Mass., U.S.A.

[vi]

This volume is the first to offer in monographic form a detailed treatment of the popular assemblies of ancient Rome. Necessarily much of the material in it may be found in earlier works; but recent progress in the field, involving a reaction against certain theories of Niebuhr and Mommsen affecting the comitia, justifies a systematic presentation of existing knowledge of the subject. This task has required patient labor extending through many years. The known sources and practically all the modern authorities have been utilized. A determination to keep free from conventional ideas, so as to look at the sources freshly and with open mind, has brought views of the assemblies not found in other books. The reader is earnestly requested not to reject an interpretation because it seems new but to examine carefully the grounds on which it is given. In general the aim has been to follow a conservative historical method as opposed to the radical juristic, to build up generalizations on facts rather than to estimate sources by the criterion of a preconceived theory. The primary object of the volume, however, is not to defend a point of view but to serve as a book of study and reference for those who are interested in the history, law, and constitution of ancient Rome and in comparative institutional research.

In the preparation of the volume, I have been generously aided by my colleagues in Columbia University. To Professor William M. Sloane, Head of the Department of History, I owe a great debt of gratitude for kindly sympathy and encouragement in the work. It is an especial good fortune that the proofs have been read by Professor James C. Egbert. Many improvements are due to his scholarship and editorial experience. Professor George N. Olcott has advised me on various numismatic matters, and I am indebted to Dr. John L. Gerig[viii] for information on two or three etymologies. The proofs have also been read and corrections made by Dr. Richard R. Blews of Cornell University. It is a pleasure to remember gratefully these able friends who have helped me with their special knowledge, and to add the name of Mr. Frederic W. Erb of the Columbia University Library, whose courtesy has facilitated the borrowing of books for the study from other institutions.

Notwithstanding every effort to make the work accurate, mistakes and inconsistencies will doubtless be found in it, and I shall thankfully welcome suggestions from any reader for its further correction and improvement.

GEORGE WILLIS BOTSFORD.

Mount Vernon, New York, June 7, 1909.

I. The Populus

The derivation of populus, “people,” “folk,” is unknown. Attempts have been made to connect it with populari, “to devastate,” so as to give it primarily a military signification—perhaps simply “the army.”[1] In the opinion of others it is akin to plēnus, plēbes, πλῆθος, πολύς, πίμπλημι,[2] in which case it would signify “multitude,” “mass,” with the idea of collective strength, which might readily pass into “army” as a secondary meaning.[3] Fundamentally personal, it included all those individuals, not only the grown men but their families as well, who collectively made up the state, whether Roman or foreign, monarchical or republican.[4] Only in a transferred sense did it apply to territory.[5] The ancient definition, “an association based on the common acceptance of the same body of laws and[2] on the general participation in public benefits,”[6] is doubtless too abstract for the beginnings of Rome. Citizenship—membership in the populus—with all that it involved is elaborately defined by the Roman jurists;[7] but for the earlier period it will serve the purpose of the present study to mention that the three characteristic public functions of the citizen were military service, participation in worship, and attendance at the assembly.[8] In a narrower sense populus signifies “the people,” “masses,” in contrast with the magistrates or with the senate, as in the well known phrase, senatus populusque Romanus.

II. The Three Primitive Tribes

The Romans believed that the three tribes which composed the primitive populus were created by one act in close relation with the founding of the city.[9] For some unknown reason they were led to connect the myth of Titus Tatius, the eponymous hero of the Tities,[10] with the Quirinal,[11] and with the Sabines,[12] who were generally supposed to have occupied that[3] hill.[13] Consequently some of their historians felt compelled to defer their account of the institution of the tribes till they had told of the union of the Sabines with the Romans, which at the same time gave them an opportunity to derive the names of the curiae from those of the Sabine women. Varro,[14] however, who protests against this derivation, refers the organization of the people in the three tribes to an earlier date, connecting it immediately with the founding of Rome. Though he affirmed that one tribe was named after Romulus, another after Titus Tatius, and the third, less positively, after an Etruscan Lucumo, Caeles Vibenna, who came to the aid of Romulus against Titus Tatius,[15] neither he nor any other ancient writer identified the Tities with the Sabines, whose quarter in the city was really unknown,[16] or the Luceres with an Etruscan settlement under Caeles whether in the Vicus Tuscus[17] or on the Caelian hill.[18] Since the Romans knew the tribe in no other relation than as a part of the state, they could not have thought of their city as consisting originally of a single tribe, to which a second and afterward a third were added, or that any one of these three tribes had ever been an independent community. These views are modern;[19] there is no trace of them in the ancient writers.[20][4] Even if it could be proved that they took this point of view, the question at issue would not thereby be settled; for no genuine tradition regarding the origin of the primitive tribes came down to the earliest annalists; the only possible knowledge they possessed on this point was deduced from the names of the tribes and from surviving institutions presumably connected with them in the period of their existence.[21] Under these circumstances modern speculations as to their independent character and diverse nationality seem absurd. The proper method of solving the problem is to test and to supplement the scant sources by a comparative study of the institution.

The low political vitality of the three primitive Roman tribes, as of the corresponding Greek phylae,[22] when we first meet with them in history, points to the artificiality of these groups—a condition indicated further both by their number and by their occurrence in other Italian states.[23] Far from being confined[5] to Rome, the tripartite division of the community belonged to many Greek and to most Italian peoples,[24] and has entered largely into the organization of communities and nations the world over.[25] A derivation of tribus, Umbrian trifu, accepted by many scholars, connects it with the number three.[26] The wide use of this conventional number, and more particularly the regular recurrence of the same three Dorian tribes in many Dorian cities—as of the same four Ionic tribes in many Ionic cities[27]—and of the same three Latin (or Etruscan?) tribes in several old Latin cities, could not result from chance combinations[6] in all these places, but point unmistakably to the systematic imitation of a common pattern. That pattern must be ultimately sought in the pre-urban populus, ἔθνος, folk. If we assume that before the rise of city-states the Ionian folk was organized in four tribes (phylae) and the Dorian and Latin folks in three tribes, we shall have a condition such as will satisfactorily explain the tribal organization of the city-states which grew up within the areas occupied by these three folks respectively. The thirty votes of the Latins may be best explained by assuming a division of their populus into three tribes, subdivided each into ten groups corresponding to the Roman curiae. Whereas in Umbria the decay of the pre-urban populus allowed its tribes to become independent,[28] in Latium a development in that direction was prevented by the rise of city-states, which completely overshadowed the preëxisting organization.

The Italian city-state grew not from a tribe or a combination of tribes, but from the pagus,[29] “canton,” a district of the pre-urban populus with definite consecrated boundaries,[30] usually centering in an oppidum—a place of defence and refuge.[31] In the beginning the latter enjoyed no superior right over the territory in which it was situated.[32] A pagus became a populus at the point of time when it asserted its political independence of the folk. The new state organized itself in tribes and curiae after the pattern of the folk. In the main this arrangement[7] was artificial, yet it must have taken some account of existing ties of blood.[33] At the same time the oppidum became an urbs[34]—a city, the seat of government of the new populus. Thus arose the city-state. In the case of Rome several oppida with parts of their respective pagi[35] were merged in one urbs—that known as the city of the four regions.[36] Urbs and ager excluded each other, just as the oppidani contrasted with the pagani;[37] but both were included in the populus.

Most ancient writers represent the three tribes as primarily local,[38] and the members as landowners from the founding of the city.[39] Although their view may be a mere inference from the character of the so-called Servian tribes, the continuity of name from the earlier to the later institution points to some degree of similarity between them. It can be easily understood, too, how in time the personal feature might have so overcome the local as to make the old tribes appear to be based on birth in contrast with the territorial aspect of the new.[40]

It was probably on the institution of the later tribes that the earlier were dissolved. They left their names to the three double centuries of patrician knights.[41] Their number appears also as a factor in the number of curiae, of senators, and of members of the great sacerdotal colleges. Other survivals may be found in the name “tribunus,” in the tribuni militum, the tribuni[8] celerum,[42] the ludus Troiae,[43] and less certainly in the Sodales Titii.[44]

III. The Curiae

The curia as well as the tribe was a common Italian institution. We know that it belonged to the Etruscans,[45] the Latins,[46] and several other peoples of Italy.[47] There were ten curiae to the tribe, making thirty in all.[48] The association was composed, not of gentes as many have imagined, but of families.[49] For the[9] performance of its social and religious functions it had a house of assembly, also called curia,[50] in which the members—curiales—gathered for religious festivals. The place of meeting was a part of an edifice belonging to the collective curiae. In historical time there were two such buildings—the Curiae Veteres[51] on the northeast slope of the Palatine near the Arch of Constantine, containing seven curial meeting-places, and the Novae Curiae[52] near the Compitum Fabricium, containing the others. Their deities were Juno[53] and Tellus;[54] and their chief festivals were the Fornacalia and the Fordicidia.[55] As the worship was public, the expense was paid by the state.[56] At the head of the curia stood the curio—who in historical time was merely a[10] priest[57]—assisted in his religious functions by his wife and children,[58] by a lictor[59] and a flamen.[60] The fact that the curio had these officials proves that he was originally a magistrate.[61] One of the curiones the people elected curio maximus to exercise general supervision over the worship and festivals of the association.[62]

Another function of the curiae was political. The grown male members, meeting in the comitium, constituted the earliest assembly organized in voting divisions—the comitia curiata—in which each curia cast a single vote.[63] Religious and political functions the curia continued to exercise far down into historical time; and for that reason they have never been doubted by the moderns. For the primitive period Dionysius[64] ascribes to them military functions as well. His idea is that the three original tribes furnished military divisions each under a tribune, and the curiae as subdivisions of the tribe furnished companies, commanded each by a curio chosen for his valor.[65] Doubtless the writer fairly describes the military system which Rome employed before the introduction of the phalanx,[66] and which corresponds[11] closely with the system prevalent among the early Greeks,[67] Germans,[68] and other European peoples.[69] The military organization was everywhere a parallel of the civil. The Roman army, however, was by no means identical with the curiate assembly, for many belonged to the tribes and the curiae who for various reasons were exempt from military service.[70]

It is probable, too, that the curiae, as well as the tribes,[71] were territorial divisions. Not only have we the authority of Dionysius[72] that each curia occupied a district of the state, but also two of the seven known curial names—Foriensis and Veliensis[73]—are local. Though the two mentioned refer to places within the city, the country people were also included in the associations.[74]

Since Niebuhr the opinion has generally prevailed that the curia was composed of gentes. A passage which at first glance seems to have a bearing on the question is Dion. Hal. ii. 7. 4: “Romulus divided the curiae into decades, each commanded by a[12] leader, who in the language of the country is called decurion.”[75] The word decurion proves, however, that in speaking of decades Dionysius is thinking of the military divisions called decuriae, each commanded by a decurion. In historical times the troop of cavalry—turma—was divided into three decuriae of ten each, as the word itself indicates. There were accordingly three decurions to the turma, and ten turmae ordinarily went with the legion.[76] From Varro[77] we learn that the three primitive tribes furnished turmae and decuriae of cavalry, the decuriae commanded by decurions. Dionysius accordingly refers to military companies—either to the well known decuriae of cavalry or to corresponding companies of footmen which probably existed before the adoption of the phalanx.[78] Had he meant gentes, he would have used the corresponding Greek word γένη. Niebuhr[79] inferred from this passage that each curia was divided into ten gentes, making three hundred gentes for the entire state; but a careful interpretation shows that no reference to the gentes is intended. We cannot infer therefore from this citation that the curia was divided into gentes.

The other passage relative to the question is Gellius xv. 27. 4,[80] in which Laelius Felix states that the voting in the comitia curiata was by genera hominum in contrast with the census et aetas of the centuriate assembly and with the regiones et loca of the comitia tributa. Niebuhr identifies genera with gentes.[81] It is clear, however, that in this passage Laelius is not concretely defining the voting units of the various assemblies, but is stating in a general way the principles underlying their[13] organization into voting units. In the comitia centuriata the principle is wealth and age; census et aetas is not to be identified with centuria or with any other group of individuals in this assembly. In like manner regiones et loca expresses the principle of organization of the tribal assembly; or if used concretely, it must designate the tribes themselves, and not subdivisions of the tribes, for none existed. Correspondingly genera hominum signifies that the principle of organization of the curiate assembly is hereditary connection; but so far as the expression is applied concretely, it must denote the curiae themselves not subdivisions of these associations. The curia, a religious, social, and political group based on birth, might well be called genus hominum in contrast with the local tribe and with the century, composed artificially of men of similar wealth and age. It is well known, too, that voting within the curiae was not by gentes but by heads.[82] As no other passage from the sources, besides these two, has even the appearance of lending support to the proposition advanced by Niebuhr, and favored by others, that the curia was a group of gentes, we may conclude that this proposition is groundless. The result is that the gens had no connection with the comitial organization.

This chapter[83] is primarily an inquiry into the social composition of the comitia curiata. At the same time it seeks to solve a problem which is doubtless the most fundamental in the early political and constitutional history of Rome. The result we reach will determine our conception of the whole course of constitutional development, and of the accompanying political struggles, to the complete equalization of the social ranks. For if we believe, as do many of the moderns,[84] that the primitive Roman state was made up exclusively of patricians, we are forced to the conclusion that the constitutional development to the passing of the Hortensian laws centred in the gradual admission of the plebeians and the clients to citizenship—perhaps even in the amalgamation of two distinct peoples. If on the other hand we take the ground that from the beginning the plebeians and the clients were citizens and voted in the comitia curiata, we must think of these inferior classes as struggling through the early history of their country for the acquisition not of citizenship but of various rights and privileges, social, economic, religious, and political, formerly monopolized by a patrician aristocracy. In attempting to solve the problem here proposed it will be advantageous to consider (1) the ancient view, (2) the conventional modern view, (3) the comparative-sociological view.

I. The Ancient View

The three social classes of freemen—plebeians, patricians, and clients—were formed within the citizen body by official recognition of existing distinctions not of nationality but of worth. The first step in the process was the differentiation of[17] the patricians from the plebeians. According to Cicero, Romulus constituted a number of chief men into a royal council, the senate, whose members he so highly esteemed as to have them called patres, and their children patricians.[85] Cicero thinks of the multitude as existing at first without a politically recognized nobility, yet showing natural distinctions of worth. By calling into the senate the ablest and best men, the state ennobled them and their families.[86] Livy’s[87] view is similar: Romulus selected from the multitude a hundred senators, whom he named patres, and whose descendants were called patricians. They were chosen because of their wisdom;[88] on that ground the state granted them nobility,[89] which accordingly in Rome, as in every early community, was founded on personal merit.[90] In the more detailed theory of Dionysius,[91] Romulus “distinguished those who were eminent for their birth and celebrated for their virtue, and whom he knew to be rich in the account of those times and who had children, from the obscure and mean and poor. The lower class he called plebeians, Greek δημοτικοί, and the higher patres, either because they were older than the others, or had children, or were of higher birth, or for all these reasons.... The most trustworthy historians of the Roman constitution assert that owing to these facts they were called patres and their descendants patricians.” According to Plutarch,[92] “Romulus, after forming the army, employed the rest of the people as the citizen body (δῆμος); the multitude he called[18] populus, and appointed a hundred nobles to be councillors, whom he called patricians, and their assembly the senate.”[93]

There can be no doubt, therefore, as to the opinion of the ancient writers. They believed that from the beginning social distinctions existed naturally within the populus Romanus, and that these distinctions were made the basis of an official division of the people into nobles and commons, patricii and plebs, by the government. This view is not only reasonable in itself, but is supported, as we shall see, by analogies drawn from many other states.

All the sources make the patriciate depend upon connection with the senate, Dionysius alone showing some inconsistency on this point.[94] Why the senators were called patres the ancients give various reasons. Cicero[95] thinks patres a term of endearment; Sallust[96] believes that the name was applied either because of age or because of the similarity of their duty; Livy[97] sets it down as a title of honor; Festus[98] thinks chiefly of their age and wisdom; Paulus,[99] his epitomator, suggests that they were so called because they divided their lands among the poorer class as fathers among children; Dionysius[100] gives three possible reasons, (1) greater age, (2) possession of children, (3) family reputation. The sources generally agree in representing the patres as men who in age, honor, authority and duty stood toward the rest of the citizens as a father toward his children, and in identifying these social-political patres with the[19] senators.[101] An examination of the word itself will tend to confirm the ancient view. It seems to have originally signified “protector,” “keeper,” “nourisher,”[102] hence “owner,” “master.” Pater familias is nourisher, protector, and master of a household.[103] In late Roman law the term continued to refer not necessarily to actual parentage but rather to the legal position of the head of a household;[104] in fact it is only in a distantly derived sense that pater comes to signify the male parent. Ideas early attaching to the word, accordingly, are those of power or authority and age. The senate, as this word indicates, was originally made up of elderly men, senatores, maiores natu.[105] It would be natural to call them patres because of their authority over the community or of their age. As a designation of rank, pater, excepting in jest, is always plural—an indication that the authority and dignity did not attach to the individual noble but to the senators collectively; they were collectively patres of the community, not individually patres of children, clients or gentes.[106] But when in time a limited number of families monopolized the senate, the term could easily be extended to the entire privileged circle, meaning those with hereditary right to authority over the rest of the community.[107] Though in the sources the patres are generally senators the word is sometimes synonymous with patricii.[108]

[20]

Regarding patricius the Romans reasoned with somewhat less care. They were right in deriving it from pater, but they made it signify “descended from,” whereas in fact it means “belonging to,”[109] and designates accordingly the families of the political patres. Probably it was formed after patres began to be applied to the entire governing class—a development which would tend to throw the latter word back to its earlier and narrower sense.

Had the investigation of these words on the part of the ancients rested at this point, all would have been well; but an unfortunate guess as to the derivation of patricii by some unknown antiquarian has brought into the study of the social ranks unutterable confusion lasting down to the present day. This conjecture derives patricius from patrem ciere, making it signify “one who can cite a father.” The attempted etymology, clearly a failure, would perhaps have been harmless, had it not connected itself with the ambiguous word ingenuus. Cincius[110] says, “Those used to be called patricians who are now called ingenui.” Livy has the two ideas in mind when he represents a plebeian orator as inquiring, “Have ye never heard it said that those first created patricians were not beings sent down from heaven, but such as could cite their fathers, that is, nothing more than ingenui? I can now cite my father—a consul—and my son will be able to cite a grandfather.”[111] There should be no doubt as to the meaning of these passages; the antiquarian who conjectured that patricius was derived from patrem ciere, and therefore defined patricii as those who could cite[21] their fathers, meant merely those who had distinguished fathers, and hence were of respectable birth. Ordinarily in extant Latin literature ingenui are simply the freeborn; and in making Appius Claudius Crassus in 368 include in the term the whole body of citizens Livy[112] dates this meaning back to the period before the Licinian-Sextian laws. Elsewhere are indications that in early times ingenui connoted rather respectable birth, and so applied especially to the patricians.[113] The quotations from Cincius and the attempted derivation of patricius from patrem ciere, accordingly, are sufficiently explained without resorting to the strange hypothesis, held by some, that in primitive Rome the patricians were the only men of free birth.

In summarizing the ancient view as to the origin and nature of the patriciate, it will be enough to say that the king chose from the people men who were eminent for the experience of age, for ability and reputation, to sit in his council, the senate; the men so distinguished were called patres, whereas the adjective patricius applied as well to their families—the patricii being those who could cite illustrious fathers.[114] From this point of view the Roman nobility did not differ from that of most other countries.

The plebs,[115] then, were the mass of common freemen, from whom the nobility was differentiated in the way described above.[22] From the ancient point of view they existed from the beginning, prior even to the patriciate itself.

It is equally true that in the opinion of the ancients the plebs were prior to the clients. Cicero[116] records that Romulus distributed the plebs in clientage among the chief men; Dionysius[117] adds that he gave the plebeians liberty to choose their patrons from among the patricians. Thus far their view is in complete accord with modern sociology, which teaches that such class distinctions first arise through the differentiation of freemen. Although aware of the fact that clientage existed in other states which were presumably older than Rome,[118] her historians doubtless felt that the institution could have been legalized in their own country by recognition only on the part of the government. They did not, however, work out a consistent theory of the relation between this class and the plebeians. Certain passages[119] hint, though they do not expressly assert, that at one epoch all the plebeians were in clientage, whereas in their accounts of political struggles the ancient writers uniformly array clients against plebeians almost from the beginning of the state.[120] The latter view is historically better founded.

There must have been various origins of clientage, with corresponding gradations of privilege. The libertini were citizens with straitly limited rights; other clients, certainly the greater part of the class, not only followed their patron to war[121] and to the forum,[122] but also testified and brought accusations in the courts[123] and voted in the assemblies;[124] and when the plebeians gained the right to hold offices the clients were admitted along with them to the same privilege.[125] In his relation with the state,[23] therefore, the ordinary client did not differ essentially from the plebeian.

From the preceding examination of the social ranks it at once becomes evident that the ancients made the populus comprise both patricians and plebeians; in further proof of their view may be cited the following juristic definition: “Plebs differs from populus in that by the word populus all the citizens are meant, including even the patricians, whereas plebs signifies the rest of the citizens, excepting the patricians.”[126] Since the sources generally consider the patricians the descendants of the hundred original senators,[127] they cannot help regarding the populus as composed chiefly of plebeians. In common speech the term, like our word people, often applies to the lower class as distinguished from the higher, in which sense it is interchangeable with plebs; often, too, it signifies the people in contrast with the senate.[128] It is clear, then, as Mommsen has pointed out,[129] that if populus signifies first the whole body of citizens and secondly the commons as distinguished from the nobles, it could not possibly have as a third equivalent the patricians as distinguished from the plebeians. In certain formulae found in addresses, wills, prayers, and oracles, populus is so joined with plebs (populus plebesque or the like) as to suggest the possible[24] meaning patricians.[130] The combination of the two words with senatus,[131] however, reveals at once the overlapping of the terms so joined. In these passages reference is to the modes by which an individual may approach the state; he may address the consuls, praetors, or plebeian tribunes, and in the same way the senate, populus, or plebs.[132] Hence in these formulae, merely representing groups of institutions through which the state is accustomed to act, the word populus does not apply solely to the patricians, and the same may be said of its use in all other connections. We may conclude, therefore, that the Latin language gives no hint of an exclusively patrician populus.

Regarding the populus as made up of patricians, plebeians, and clients, our sources necessarily ascribe the same social composition to its divisions, the three old tribes and the thirty curiae.[133] With perfect consistency they mention repeated enlargements of the populus and of the tribes and curiae, through the admission of masses of aliens, most of whom must have remained plebeian. In fact the sources uniformly represent all the kings as freely admitting conquered aliens without exception to the citizenship and to the tribes and the curiae, even compelling some forcibly to enter this condition.[134]

Might the plebeians and clients belong in a restricted sense to the populus and curiae, and yet remain so far inferior to the patricians as to be excluded from the political meetings of the curiae—the comitia curiata? There can be no uncertainty as to the answer to this question, for the ancient writers agree that the comitia curiata included plebeians and clients as well as[25] patricians.[135] Not only did the lower classes attend this assembly, but they also voted in it, and constituted the majority.[136]

II. The Conventional Modern View

The passages cited above suffice to prove that the ancient writers thought of the populus, and consequently of the comitia curiata, as composed from the earliest times of patricians, clients, and plebeians. Another question, far more difficult, is whether the ancients were right in their view.

As none of the authorities on whom we directly depend for our knowledge of Roman affairs lived earlier than the last century of the republic, they could have had no first-hand acquaintance with primitive Roman conditions, but must have drawn their information concerning the remote past from earlier writers—the annalists—now lost. Niebuhr, who in the opening years of the last century introduced the modern method of investigating Roman history, was convinced that writers of the late republic and of the empire, lacking historical perspective and interpreting their sources in the false light of existing or recent conditions, came to wrong conclusions in regard to the primitive Roman state. He believed he could point to instances of such misunderstanding, and he thought it within the power of a well-equipped modern historian to eliminate much of the error so as to come near to the standpoint of the earlier and more trustworthy annalists.[137]

The position of Niebuhr has in the main proved untenable. Notwithstanding all the source-sifting of modern times, pursued most zealously by the Germans, we are obliged to admit that it is rarely possible with any fair degree of certainty to discover the view of an annalist on a given subject excepting in the few cases in which the citation is by name. We must also[26] admit that though Cicero and the Augustan writers might misinterpret Fabius Pictor in minor details, it is inconceivable that they should fail to understand his presentation of so fundamental a subject as the character of the original populus or the composition of the earliest assembly. Present scholarship accordingly insists that in such weighty matters there was no essential difference of view between earlier and later writers.[138]

These considerations have simplified but not solved the problem. Scholars now agree that no contemporary account of the regal period—ending 509 (?) B.C.—ever existed; and even if it be conceded that the earliest Roman annalist—Fabius Pictor, born about 250 B.C.—had access to traditional or documentary[139] information reaching back to the close of that period, no historian will admit such a possibility for the beginnings of Rome. It follows then that for the origin and character of her earliest institutions Cicero, Livy, and Dionysius, or their sources, have relied wholly on inference from later conditions, in so far as they have not resorted to outright invention. Though with their abundant material they were in a far better position for making such deductions than we are, they lacked the experience and the acute critical method of the moderns.[140] Of the three writers above mentioned—our main sources for the subject under discussion—Cicero was essentially an orator, Dionysius a rhetorician, and Livy, though historian in name, was in spirit rhetorical and dramatic rather than critical. Naturally therefore they or their sources, who on the whole were equally uncritical, made mistakes in the difficult work of drawing inferences as to the history and institutions of the regal period. Such is the view of historians today. It was formerly argued that Dionysius, a rhetorician and a Greek, failed in spite of his twenty-two years of preparation at Rome to understand the[27] spirit and character of the Roman constitution and has therefore been an especial fountain of error;[141] but it is now clear that though in his treatment of early Rome he shows far greater amplitude than Livy and is for that reason proportionally more liable to error in detail, he follows good Roman sources for institutions, and is in this field, with the reservation here mentioned, not essentially inferior to the extant native writers.[142]

Considering the sources untrustworthy and following certain clues which he believed they afforded to a right understanding of the annalists, Niebuhr came to his theory as to the composition of the primitive Roman state. Although he asserts that it was made up of “patrons and clients,”[143] he does not rest satisfied with this view, but proceeds to trace clientage to the following origins, as though in his opinion this institution did not exist from the beginning: (1) some native Siculians perhaps, who were conquered by Latin invaders; (2) strangers settling on Roman territory and choosing a Roman as protector; (3) inhabitants of communities which were obliged to take refuge under Roman protection; (4) manumitted slaves.[144] Logically he goes back to a state made up exclusively of patricians.

He sought evidence for this hypothesis in the scheme of tribal organization of Rome. The primitive city was divided into three tribes, thirty curiae and, as he believed, three hundred gentes. As no one could be a citizen without membership in a gens,[145] and as the patricians alone were active members of the gentes,[146] it must follow that the patricians alone were citizens.[28] It is doubtful whether he would have proposed this hypothesis had it not been for the analogy of the Attic tribal scheme. An imperfect quotation from the lost part of Aristotle’s Constitution of Athens[147] seems to signify that the Athenian state was once divided into four tribes (φυλαί), twelve phratries and three hundred and sixty gentes (γένη). On this authority Niebuhr supposes that the phratry was a group of gentes, and he assumes further that both phratries and gentes were composed exclusively of eupatrids.[148] But the suppositions (1) that there were three hundred and sixty gentes, (2) that the phratry was a group of gentes, (3) that both phratries and gentes contained only eupatrids are contradicted by well known facts. From the earliest times the Greek tribes and phratries included commons as well as nobles. This is true of the Homeric Greeks,[149] and a law of Draco[150] proves that the early Attic phratry comprised both nobles and commons. In historical times all citizens belonged to the phratries; whereas but few were members of the gentes.[151] Most of the gentes were in fact composed of the old landed nobility, though a few, like the Chalkidae and the Eupyridae, were apparently industrial guilds, which had received the privileges of the gentes. So far therefore from supporting Niebuhr in his peculiar view of the Roman gentes and curiae, the Attic analogy militates in every way against him. As his assumption that the curia was a group of ten gentes has already been disproved,[152] it remains only to consider whether the gens was an exclusively patrician institution. From the circumstance that patricianism is not given as an element of Scaevola’s definition, quoted by Cicero,[153] we may at once conclude that in their[29] time plebeians, too, were gentiles. This conclusion is supported by a variety of evidence.

Several plebeian gentes are mentioned, including the Minucia and the Octavia,[154] the Lutatia,[155] the Calpurnia,[156] the Domitia,[157] the Fonteia,[158] the Aurelia,[159] and the Licinia.[160] Some gentes comprised both patrician and plebeian families, as the Cassia,[161] the Claudia,[162] the Cornelia,[163] the Manlia,[164] the Papiria,[165] the Publilia or Poplilia,[166] the Aebutia,[167] and the Servilia.[168] Not only do the sources refer to several plebeian gentes by name, but they clearly imply in other ways the existence of such associations. Livy[169] expresses[30] the patrician sentiment that “it would seem an affront to the gods for honors to be vulgarized and for the distinction between gentes to be confused at auspicated comitia” (by the election of plebeians to the consular tribunate). “The distinction between gentes” can only mean the distinction between patrician and plebeian gentes—an interpretation confirmed by a similar statement of Cicero[170] to Clodius, who had passed by arrogation from a patrician to a plebeian gens: “You have disturbed the sacra and contaminated the gentes, both the one you have deserted and the one you have defiled” (by your admission into it). To our other proofs we may add the consideration that the very expression gentes patriciae[171] implies the existence of plebeian gentes. It is natural then that Varro[172] should make gentilitas a condition of men in general. In asserting that there were a thousand gentile names the same authority[173] must have included those of plebeians, for scarcely a hundred belonging to patricians could have been known to him. By no means the weakest argument in favor of the view here presented is the fact that the laws of the Twelve Tables concerning inheritance, tutelage,[174] etc.—which apply not to the patricians alone but to the whole citizen body—assume that every citizen in full possession of his civil rights belonged to a gens.

A passage often interpreted against the existence of plebeian gentes is Livy x. 8. 9: “Vos solos gentem habere.” In this case a plebeian speaker says the patricians claim that they alone have gens (not gentes). The context shows clearly, however, that gens does not here denote an association but is used in the sense of illustrious birth or pedigree,[175] as is sometimes our word[31] family.[176] Wherever a nobility exists it necessarily lays greater stress on descent than do the people, and in all countries the nobles are in a far better position to keep up family connections than are the commons. Naturally therefore at Rome we hear more of patrician than of plebeian gentes. But in view of all the facts mentioned above there should be no doubt as to the existence of the latter. The result of this discussion is that neither in the composition of the gens nor in its position in the community can support be found for Niebuhr’s assumption of a patrician state.[177]

Other evidence for his hypothesis Niebuhr thinks he finds in a statement of Labeo,[178] that the curiate assembly was convoked by a lictor, the centuriate by a horn-blower; while Dionysius[179] says that the patricians were summoned by name through a messenger, the people by the blowing of a horn. Thus Niebuhr maintains that Labeo and Dionysius agree unequivocally in designating the curiae as the assembly of the patricians. But in fact these two sources refer to the customs of the historical age, when the curiate assembly was ordinarily attended by only three augurs and thirty lictors. Horn-blowing under these circumstances would have been absurd. The summoning of the patricians by their own name and that of their father, on the other hand, proves them too few to compose a popular assembly. These citations therefore are far from supporting his hypothesis. His last and greatest proof is the identification of the lex de imperio, passed by the curiae, with the patrum auctoritas. If these are merely two terms for the same act, the curiae must have been made up of patres. But by establishing the fact that the patrum auctoritas belonged to the senate or to its patrician members, Willems[180] and Mommsen[181] have deprived Niebuhr’s hypothesis of its main prop.

Niebuhr evidently believed that the curiae continued exclusively[32] patrician through the whole republican period.[182] This idea, however, must be dismissed for the following reasons: (1) Our sources agree that in the early republic the plebeians and clients continued to vote in the curiate assembly.[183] (2) The plebeians were in the curiae in 208 B.C., when the first curio maximus was chosen from the plebs.[184] (3) In the time of Cicero thirty plebeian[185] lictors represented the comitia curiata, and gave the votes.[186] (4) Arrogations by plebeians took place in this assembly; in the well-known case of Clodius it must be borne in mind that it was a plebeian who arrogated him. (5) The extinction of the patriciate did not involve the downfall of the comitia curiata.[187] (6) The confirmation by the curiae (lex de imperio) of elections in the centuriate assembly was conceived as a second vote of the community.[188] (7) The resolutions of the comitia curiata are always thought of as resolutions of the populus, which Latin literature nowhere restricts to the patrician body. (8) In all ancient literature there is nowhere the slightest hint of a change in the social composition of the curiae or of the comitia curiata in the whole course of their history. What the ancients believed to be true of either institution at any particular period will hold therefore for its entire history.[189]

Of the arguments in favor of Niebuhr’s hypothesis either added by Schwegler[190] or brought by him into greater prominence, one only demands attention. He reasons that if the[33] plebs were in the curiate assembly, it would be impossible to explain the political advance made by the institution of the comitia centuriata; and the constitutional history of Rome would be reduced to an insoluble riddle. Here we have to deal with a subjective argument—the rejection of sources because they do not agree with a preconceived theory. Arguments of the kind, however, which may be easily invented for the support or overthrow of every imaginable proposition, carry little weight. Besides it is easy to show by analogies from the history of other peoples that the presence of the commons in the primitive assembly does not make the constitutional history of Rome a real enigma. In the primitive German assembly, for instance, were included all the warriors; and yet in the more developed German states were monarchies and aristocracies which gave the people little or no voice in the management of public affairs.[191] The Homeric Greek assembly included all freemen, who, however, had little to do with the government in that period, and still less under the aristocracy which followed.[192] In like manner, although the plebeians attended the comitia curiata and had a majority of votes in this assembly, they could not thereby control the government, for they absolutely lacked initiative.[193] The comitia centuriata, a timocratic institution, elevated the rich and degraded the poor. Here as elsewhere the poor lost by the substitution of aristocracy for kingship; but a real constitutional advance was made in the gradations of privilege, which were based on wealth and which reached like a ladder from the humblest member of the proletarian century to the patrician knight in the sex suffragia.[194] These gradations prepared the way for an ultimate equalization of rights. We conclude, then, that the presence of the commons in the primitive assembly is perfectly compatible with a rational view of constitutional development.

With Schwegler, who grants however reluctantly that the commons were received into the curiae before 208,[195] the theory enters upon its present phase; for the great majority of writers since his time have accepted his view, yet with varying opinions as to the date of the change. Mommsen,[196][34] who more than any one else has made it clear that, so far back as our sources reach, the populus comprised both patricians and commons, nevertheless assumes that the latter were originally outside the populus but were admitted no later than the beginning of the republic.[197] In his reconstruction of the primitive state he supposes that the citizens were all patres, in so far as they, and they alone, could be fathers; or adjectively patricii, in so far as they, and they alone, had fathers.[198] Added to the citizens and their slaves was a class of persons termed clients, half way between freedom and slavery—a class made up from various origins but chiefly by the conquest of neighbors.[199] These clients belonged, as dependents of the gentes, to the curiae, but had no vote in the assembly.[200] Later the plebs were formed from the clients as the bond which united the latter with their patrons relaxed.[201] The plebs, who were free citizens of inferior rank, came into being at the moment when the patricio-plebeian comitia centuriata acquired the right to express the will of the community.[202]

Although Mommsen knows well the weakness of the evidence offered by earlier writers, he adopts the hypothesis of an original patrician state, without attempting a systematic defence. Here and there in his works, however, he mentions some fact or condition which he would like to have considered proof. The following are the chief passages of this kind:

(1) The lack of right to the auspicia[203] and to the imperium[204] on the part of the plebeians proves that the patriciate was the original citizenship.

But we could as reasonably say, with reference to the auspices, that the two Attic gentes which furnished the sacred exegetes contained the only Athenian citizens.[205] The auspicia, as Soltau[206][35] has noticed, belonged to the ius honorum, as did also the imperium; hence they were both privileges of the nobility. In brief Mommsen’s reasoning would make a governing nobility everywhere impossible.

(2) The cavalry were patrician; therefore the infantry must have been.[207]

With the same kind of reasoning we could conclude that because in the Homeric age of Greece chariots were used in war by nobles only, the infantry must also have been exclusively noble; whereas we know that the rank and file were common men.[208] That the Roman army before Servius was similarly composed is supported not only by this and many other analogies, but also by the unanimous testimony of the sources. As in other primitive states the warriors belonged to the assembly and were the citizens.

(3) Of the sixteen local tribes named after gentes it can be proved that ten have the names of patrician gentes, and not one name is known to be plebeian. This is evident proof that from the beginning the patriciate was not nobility but citizenship.[209]

His premises prove no more than that at the time when these tribes were instituted the patricians were influential enough to give their names to ten, probably to all sixteen. In all the three cases mentioned, Mommsen reasons that because the patricians alone enjoyed the honors, privileges, and influence usually considered appropriate to a nobility, they must therefore have constituted not the nobility simply but the whole citizen body.

(4) He identifies patres with gentiles and assumes that the primitive state was an aggregate of gentes, thus making the patres the only members of the state.[210]

These are not proofs but unsupported assumptions. The only connection of patres with gentes given in Latin literature is in the well-known phrases patres maiorum and minorum gentium; and Cicero[211] makes it clear that these patres were senators.[36] The phrase means senators from, or belonging to, the greater or lesser gentes. Furthermore it has been proved (1) that the patricians were not the only gentiles,[212] (2) that the curia, and hence the state, was not an aggregation of gentes.[213]

(5) We are informed, says Mommsen, (a) that the body of full Roman citizens consisted originally of a hundred families, whose fathers, the patres, regarded more or less concretely as the ancestors of the individual gentes, composed the senate, and together with them their descendants, the patricians, made up the citizen body; or expressed in other words (b) patrician originally meant just what was afterward included under the term ingenuus.[214]

For (a) Mommsen cites those passages by which it has been shown[215] that the Romans looked upon the original hundred senators as the fathers neither of the “citizen body” nor of the “full citizens,” but of the nobility. His statement of the case is directly contradicted by the authorities he quotes. As regards (b) it has been sufficiently proved[216] that ingenuus when made equivalent to patricius most naturally signifies not “of free birth,” but “of respectable, noble birth.”

Most scholars have wisely avoided bringing the myth of the asylum[217] into the argument. Pellegrino,[218] however, identifies the refugees at that place with the entire plebeian body. As the asylum was not an Italian but a Greek institution,[219] the story connected with it is doubtless a myth. It seems to have been invented by the Greeks of southern Italy, most probably in the fourth century B.C. At that time they began to view with alarm the southward advance of the Romans, and to disparage them accordingly by falsifications representing their origin as obscure and disreputable.[220] Similar calumnies against other peoples were[37] concocted by their Greek enemies.[221] Notwithstanding the fact that the story had not even a kernel of historical truth the Romans accepted it with more or less modification[222] and used it to some extent for partisan objects.[223] They could not oppose the plebs to patricians as foreigners to natives, however, for (1) they supposed that plebeians as well as patricians participated in the original settlement of Rome, (2) they derived patrician as well as plebeian families from foreign sources.[224] We are warranted in concluding that in adopting the Greek myth of the asylum they looked upon it as a cause of increase in the plebeian population without finding in it the origin of the plebeian class.

To the theory of an exclusively patrician populus the following objections may be summarily urged: (1) It is opposed by the unanimous testimony of the ancient authorities. (2) It rests upon a wrong explanation of the words patres, patricii, as designations of the nobles. (3) It is further propped up by reasons so feeble as to testify at once to its weakness, the more substantial basis having been overthrown partly by Mommsen himself. (4) The number of patricians is too small for the theory.[225] (5) It ignores the meaning of the word plebs, which evidently signifies “the masses,” in contrast with the few nobles, and hence could not apply to a class gradually formed by the liberation of clients, or by the admission of foreigners. No one who holds the theory has attempted to show what these liberated clients were called when they were but few compared with the patricians—before they became “the multitude.” (6) It is contradicted by everything we know of Rome’s attitude[38] towards aliens. So far back as our knowledge reaches, she was extremely liberal in bestowing the citizenship, even forcing it upon some communities. Only when she acquired the rule over a considerable part of Italy did she begin to show illiberality in this respect. Down to 353 the citizenship thus freely extended included the right to vote.[226] (7) It assumes the existence of a community politically far advanced yet showing no inequalities of rank among the freemen—a condition outside the range of human experience. It aims to explain the origin of the social classes on purely Roman ground, ignoring the fact that distinctions of rank are far older than the city, and exist, at least in germ, in the most primitive communities of which we have knowledge.[227]

III. The Comparative-Sociological View

As social classes belong to all society,[228] they cannot be explained by the peculiar conditions of any one community. The[39] only scientific approach to this subject is through comparative study; the inferences of the ancient historians relative to primitive Rome are not to be displaced by purely subjective theories, but are to be tested by comparison with conditions in other communities of equal or less cultural advancement.

Distinctions of rank depend ultimately upon physical, mental, and moral inequalities,[229] which differentiate the population of a community into leaders and followers.[230] The exhibition of physical strength and skill on the part of young men and of knowledge and wisdom on the part of the elders are often “the foundation of leadership and of that useful subordination in mutual aid which depends on voluntary deference.”[231] In an age in which men were largely under the control of religion the possession of an oracle or skill in divination or prophecy might contribute as much to the elevation of an individual above his fellows.[232] Leadership, once obtained, could display and strengthen itself in various ways. In primitive society the strong, brave, intelligent man was especially qualified to take command in war. Success brought the chief not only renown but a large share of the booty and in later time acquired land. The same result might be obtained by other means than by war;[233] but in any case wealth and influence inherited through[40] several generations made nobility.[234] Primarily grounded on ability, wealth, and renown, this preëminence was often heightened by a claim to divine lineage or other close connection with the gods.[235]

There was evidently a stage of development—before the association of the nobles into a class—in which chieftains alone held preëminence. This condition is common in primitive society, as among the American Indians.[236] Also among the Germans, who had advanced somewhat beyond this stage, each chief or lord appears to have been noble “less with reference to other noblemen than with reference to the other free tribesmen comprised in the same group with himself.”[237] From Brehon law we infer that the Irish lords were individually heads of their several groups of kinsmen or of vassals;[238] and in Wales the nobles were a hierarchy of chieftains.[239] As soon as leadership became hereditary there arose noble families, in which the younger members were often sub-chieftains;[240] and finally through intermarriage among these families, as well as through the discovery of common interests, the nobles associated themselves into a class.

Among the ancient Germans,[241] the Greeks of the Homeric[41] age,[242] and in some early Italian states[243] certain families had become noble, and others were on the way to nobility. For ancient Ireland the entire process can be followed. A common freeman enters the service of some chief, from whom he receives permission to use large portions of the tribe land.[244] By pasturing cattle, he grows wealthy, becomes a bo-aire (cow-nobleman) and secures a band of dependents. Supported by these followers, he preys upon his neighbors and, if successful, becomes in time a powerful noble.[245] After “a certain number of generations” he can no longer be distinguished from the blooded nobility.[246] Here is an instance of a common freeman’s becoming noble through service to a chief. In like manner among the Saxons who had conquered England the ceorl who “thrived so that he had fully five hides of land,” or the merchant who had “fared twice over the wide sea by his own means,” became a thane; “and if the thane thrived, so that he became an eorl, then was he henceforth worthy of eorl-right.”[247] “The thanes were the immediate companions of the king—his comitatus—and from their first appearance in English history they took rank above the earlier nobility of Saxon eorls, who were descended from ancient tribal chiefs. Thus the thanes as a nobility of newly rich corresponded to the cow-noblemen of an earlier time.”[248] In the way just described many rose from the lower ranks to nobility. In fact, eminent authorities assert that the inferior[42] nobles, especially of the middle age, were more often of servile than of free origin, as the common freemen were inclined to think it degrading to be seen among the comites of a chief.[249]

It has now been sufficiently established that even in the tribal condition people were differentiated into social ranks. We have traced the beginning of nobility to leadership and have found, in both ancient and mediaeval society, new noble families forming by the side of the old. Social distinctions were well developed long before the founding of cities. When a community, whether a tribe or a city, is far enough advanced to begin the conquest of neighbors, “it has already differentiated into royal, noble, free, and servile families.”[250] This was true of Sparta. In her “the conquerors nevertheless, notwithstanding great differences among themselves, remain sharply separated in social function from the conquered.... The conquerors became a religious, military, and political class, and the conquered an industrial class.”[251] Even in the case of Sparta, however, which is perhaps our best example of the exclusiveness of a ruling city, there is evidence of mingling between the conquering Spartans and the conquered Laconians before the former became exclusive.[252] In like manner there was much mixing of the invading “Aryans” with the natives of India—the more intelligent of the natives rising to the higher classes and the less gifted of the invaders sinking to the lower—before the crystallization of the castes.[253] We find the same mingling of conquerors and conquered in varying degrees in ancient Ireland,[254] in England under the Normans,[255] and throughout the Roman empire in the[43] period of Germanic settlements.[256] It becomes doubtful, therefore, whether a nobility was ever formed purely by the superposition of one community upon another. The effect of conquest was rather to accentuate existing class distinctions, and by a partial substitution of strangers in place of native nobles to stir up antagonism between the classes. Even where the differences between the social ranks seem to be racial, it would be hazardous to resort to the race theory in explanation; for such a condition could be produced in the course of generations by different modes of life, education, nurture, and marriage regulations of the nobles and commons respectively.[257]

The study pursued thus far will enable us to understand how there came to be social classes at Rome before the beginning of conquest. But for a long time after the Romans began to annex territory we may seek in vain for a distinction between conquerors and conquered, like that which we find in Laconia. We are forbidden to identify the plebs with the conquered and the patricians with the conquerors by many considerations mentioned above—for instance, by tradition,[258] by the derivation of several patrician gentes from various foreign states,[259] by the fewness of the patricians,[260] and by the fact that the latter show no differentiations of rank, such as we find among the conquering Spartans; they were not a folk but a nobility pure and simple. We are to regard Rome’s early annexations of territory and of populations not as subjugations, but as incorporations on terms of equality. The people incorporated were of the same great folk, the Latins, or of a closely related folk, the Sabines. Accordingly they were not reduced to subjection, but were[44] admitted to citizenship, to the tribes and the curiae, and their nobles were granted the patriciate.[261] Only communities of alien speech, like the Etruscan, or distant Italian communities like the Campanian, were ordinarily given the inferior civitas sine suffragio; and this restricted citizenship does not appear in history before the middle of the fourth century B.C.

The analogies offered in this chapter, by proving that the conditions they illustrate are possible for early Rome, tend to confirm the authority of the sources. By similar comparative study it would be practicable to illustrate in detail and to corroborate the statements of ancient writers as to the organization of the plebs, as well as of the patricians, in tribes and curiae, the participation of the clients and plebeians in war and politics, and the deterioration of the free commons through the strengthening of the nobility—all of which are rejected by eminent modern historians, who merely imagine them incompatible with primitive conditions or with a rational theory of constitutional development. The inquiry has been pursued far enough, however, to indicate that from a comparative-sociological point of view the conception[45] of early Rome handed down to us by the ancients is sound and consistent, and that the method of subjective reconstruction of history introduced by Niebuhr and still extensively employed by scholars is unscientific.

That among the Romans the conception of property first attached to movable objects is attested by the words “pecunia” and “mancipatio.”[262] There was probably a period during which the citizens cultivated the lots of arable land assigned them by the state without regarding these holdings as property either public or private. In view of the well-established fact that the gens was a relatively late institution, we should for this remote period exclude the idea of gentile tenure.[263] The land was distributed among the families according to tribes and curiae; and when the idea of ownership extended to the soil, it took the form of family ownership of the ager privatus and state ownership of the public domain.[264]

The condition of tenure anterior to the conception of property in land left little trace of itself in the language and institutions and absolutely none in tradition. The sources declare that family[49] ownership existed in Rome from her foundation as well as in her earliest colonies—a view confirmed by the comparative study of language.[265] Each family, they assume, held two iugera—the heredium[266]—or we may more correctly say, at least two iugera.[267] This small lot has generally been explained[268] as the private landed property of the individual, in contrast with the public land and with the common land of the gens, and thus it is taken as evidence of a condition prior to the extension of private ownership to the arable fields. Should we grant this to be the true explanation, we might still assume that public and gentile tenure had developed into private ownership of arable land long before Servius, or that Servius himself converted the fields into private holdings. For the second alternative we could find apparent support in the sources, which have much to say of the distribution of land among the citizens by Servius.[269] For the continued absence of private ownership after the Servian reforms not even the shadow of an authority can be found.

But the explanation of heredium given above is by no means necessary; in fact the sources regard it not as the only private land, but rather as the smallest share allotted to any citizen, the rich and noble possessing more.[270] While accordingly the wealthy man owned many iugera, the poor man, limited to his heredium, was obliged to earn part of his living by labor as a tenant or as a wage-earner in the field of his rich neighbor;[271] and in the early colonies the bina iugera were granted on the same aristocratic principle. If this is the true explanation of heredium, the[50] strongest argument in support of the theory of public ownership at Rome in the late regal period is taken away; we must either abandon the theory or relegate it to a time far anterior to the Servian reforms. Mommsen’s assumption[272] that the sixteen oldest rural tribes were instituted some time after the city tribes by the division of gentile lands is untenable on other grounds. The gens which gave its name to the tribe could not have owned all the land in the tribe; for in that case all but the sixteen gentes would have been landless. Again, assuming, as he does, that all the land belonged to the gentes, which he supposes to have been exclusively patrician, we should be forced to conclude that the division left the plebeians landless. And further, if we bear in mind that the gens developed from the family, we must also believe that the undivided gentile land was once a family estate, which according to Roman usage had to be registered in some tribe, even if the land of the gens was not so registered. Mommsen’s theory proves therefore not only to be unsupported by the sources but actually unthinkable. In conclusion we may safely say that though some land remained public, and though the gens after it had come into existence owned some common land, individual, or at most family,[273] ownership was in full force in the earliest times of which we have knowledge.

The clearest and most detailed account of the origin of the Servian tribes is given by Dionysius iv. 14. 1 f.: “When Tullius had surrounded the seven hills with one wall, he divided the city into four parts, and giving to the parts the names of the hills—to one Palatina, to another Suburana, to the third Collina, and to the fourth Esquilina—he made the city to consist of four tribes, whereas up to that time it had comprised but three.... And he ordained that the men who lived in each of the four parts should not change their abode or give in their census elsewhere. The enlistment of soldiers also and the collection of taxes, which they were to pay individually to the treasury for military and other purposes, were distributed no longer among the three gentile tribes but among the four local tribes instituted by him.... [15. 1:] And the whole country[51] he divided, as Fabius says,[274] into twenty-six parts, also called tribes, adding to them the four city tribes; but Venonius is authority for thirty-one rural tribes, which with those of the city would complete the thirty-five of our own time. Cato, however, who is more trustworthy than either of these two, says that all the tribes in the time of Tullius amounted to thirty, though he does not separate the number of parts” (into urban and rural).

A great variety of opinion has arisen regarding the original number of the Servian tribes. Niebuhr[275] believed that Servius created in all thirty, afterward reduced by unfortunate war with the Etruscans to twenty. This view found supporters but was refuted by Huschke.[276] Those who rejected it generally agreed that Servius divided the city into four tribes and the country into districts, regiones, pagi.[277] Mommsen[278] gave a new phase to the theory of the subject by assuming that the four so-called city tribes, which all the sources agree in ascribing to Servius,[279] included the country as well as the city. According to this hypothesis Alba[280] and Ostia,[281] for instance, belonged to the Palatine tribe. His opinion has found wide acceptance.[282][52] Afterward changing his mind, he asserted that the four urban tribes were confined within the pomerium—a view which now seems to be established beyond doubt.[283] With this final position of Mommsen the creation of theories as to the number and limitations of the Servian tribes has not been exhausted; for against the view that Servius instituted only the four urban tribes may be placed that of Pais,[284] who assigns their origin to the censors of the year 304. The theory of Pais implies that the sixteen rural tribes which bore gentile names were far older than the four urban tribes.

Light will be thrown on this obscure subject by an inquiry into the relation of the sources to one another. It seems certain that Fabius derived his information concerning the tribes and the entire centuriate organization from the “discriptio centuriarum”—a document in the censors’ office. Though ascribed to Servius Tullius as author,[285] it set forth the centuriate system as it existed in reality before the reform—that is in the time of the first war with Carthage.[286] It was this late form of the centuriate organization which Fabius had in mind. He must have been prevented, however, from ascribing to Servius the institution of all the thirty-three tribes then existing, by the recollection that two tribes were added as recently as 299 from territory too far from Rome to have formed a part of her domain under Servius; and perhaps the curiate organization led him to favor the number thirty. He made Servius the author of thirty tribes, accordingly, in spite of the fact that this number was not reached till 318. His error is not more absurd[53] than the ascription to Servius of the whole centuriate organization as it stood at the opening of the First Punic War, or the assumption that in the first Servian census were enrolled eighty thousand men fit for military service.[287] Cato, who also states the original number as thirty, without separating them into rural and urban,[288] may have been influenced by Fabius, though it is likely that he drew from the same source. Vennonius in making Servius the author of all thirty-five tribes but slightly exceeds the absurdity of earlier writers.[289] Evidently Fabius and Cato were the sources for all future annalists. While depending on them, Varro seems to have noticed the error of ascribing twenty-six rural tribes to Servius, as there were but seventeen of this class before 387. To avoid the difficulty and at the same time to retain the Fabian number, he supposed that the country districts of Servius were not yet tribes but the regiones from which the tribes were afterward formed[290]—a superficial explanation in the true Varronian style.[291] Following Varro, however, later authorities generally speak of the four urban tribes of Servius without mentioning those of the country.[292] So Dionysius, after referring to the four city tribes, proceeds to describe their character and functions, as though these were all the tribes then existing.[293] Thus far he depends upon Varro. Fortunately, however, he gained from Fabius the information that there were also twenty-six rural tribes, his description of which[294] is slightly troubled by the[54] Varronian notion that these country districts were not so much tribes as regiones, πάγοι, but which served all the purposes of tribes including the taking of the census.[295]

The various contradictory statements of the ancients regarding the original number of Servian tribes can now be appreciated at their respective values. In the course of the discussion it has become evident, too, that Fabius and Cato, the sources of later annalists, had no tenable ground for their assumption of thirty original tribes. Had they examined the records, perhaps the succeeding parts of their own chronicles, they would have found that before 387 there could have been only twenty-one tribes in all.[296] A less certain indication of the admission of one or possibly two tribes still earlier in the republic may have existed;[297] but here we reach the extreme limit of their knowledge. Any investigation of the number in the regal period, whether by the ancients or by the moderns, must rest not upon contemporary records but upon inference pure and simple. We may inquire, accordingly, whether the view of Mommsen[298] and Meyer[299] that the four city tribes were created first and existed for a time before the institution of the rural tribes, having no trustworthy foundation in the sources, can be deduced from our knowledge of the general conditions of the time. We must by all means avoid the supposition of Mommsen[300] that in the time of Servius there was no private property in land outside of the city.[301] If then we bear in mind two points which Mommsen has himself established, (1) that the local tribe was an aggregate of private estates,[302] (2) that the four urban tribes of Servius were limited to the city,[303] we must conclude that in the time of Servius the country estates were registered in rural tribes—in other[55] words that Servius instituted rural as well as urban tribes.[304] The view of Meyer that all the citizens lived in the city and the dependents in the country[305]—which would afford a ground for assuming the urban tribes to have been earlier than the rural—has no basis either in institutions or in tradition. If originally the country was all-important,[306] and if at the dawn of history we find the country and city politically equal, as is actually the case, we have no motive for the insertion of an intermediate stage in which the city was all-important. There was indeed a tendency toward the concentration of political power within the city, but it did not advance beyond the equalization of city and country.[307] To maintain Meyer’s view we should be obliged to complicate the early history of Rome with two revolutions—one by which the city gained supremacy over the country, and the other in which the supremacy was lost. It is mainly to defend the early history of the comitia, and of the constitution in general, against this complication that the[56] present discussion of the early land tenure and of the origin of the Servian tribes is offered.

The original number of tribes, as has been stated, is unknown. It was increased by the acquisition of territory. Possibly the annalists found an obscure trace of the admission of the sixteenth rural tribe—the Claudia—in 504. To that year Livy assigns the coming of Attius Clausus with his host of clients, who were formed into the Claudian tribe.[308] Wissowa[309] suggests that the immigration of the Claudian gens, the date of which did not appear in the original tradition,[310] was arbitrarily assigned to the year in which was recorded the admission of the tribe. This conjecture is supported by the situation of the Claudia, which would place it among the latest of the twenty.

With more confidence we may assign the admission of the seventeenth rural tribe—the twenty-first in the entire list—to 495.[311] It must have been the Clustumina.[312] We are certain that[57] there were only twenty-one till 387, when four new tribes were formed, bringing the number up to twenty-five.[313] The twenty-sixth and twenty-seventh were admitted in 358,[314] the twenty-eighth and twenty-ninth in 332,[315] the thirtieth and thirty-first in 318,[316] the thirty-second and thirty-third in 300[317], the thirty-fourth and thirty-fifth in 241.[318] To the year 90 that number is known to have remained unchanged, and the evidence of a temporary increase during the Social War is obscure. On this point Appian[319] states that “the Romans did not enroll the newly admitted citizens in the existing thirty-five tribes for fear that, being more numerous, they might outvote the old citizens in the comitia; but by dividing them into ten parts (?) they made new tribes, in which the new citizens voted last.” This view of an increase in number is confirmed by a statement of Sisenna[320] as to the creation of two new tribes at about that time. Velleius[321] however informs us that the new citizens were enrolled in eight tribes. In the object of the arrangement he agrees with Appian. Next he mentions the promise of Cinna to enroll the Italians in all the tribes. From the connection we should naturally infer that in the opinion of Velleius the new citizens were enrolled before Cinna in eight old tribes; and yet it is difficult to understand how the assembly could be persuaded to visit any group of rural tribes with this disgrace and political disability.[322] As the authority of Sisenna, if not that of Appian, compels us to accept the fact of new tribes, it is better to interpret[58] Velleius in that light.[323] We may suppose then that the eight tribes which he mentions were provided for by the Julian law of 90; and we must accept the statement of Sisenna that in 89 the Calpurnian law “ex senati consulto” created two other new tribes, in which were to be enrolled the citizens admitted under this law. Thus we could account for the ten (?) new tribes mentioned by Appian. As regards the Lucanians and the Samnites, who held out obstinately against Rome, the same historian[324] states that they were respectively enrolled in tribes, as in the former instances. He does not inform us, however, that for this purpose other new tribes were instituted. At all events there seems to be no essential disagreement among our sources; and we have no reasonable ground for doubting an increase, though we may remain uncertain as to the number added.[325]

The arrangement was only temporary. In 88 Sulpicius, tribune of the plebs, carried a law containing a provision for the distribution of the new citizens and the libertini among all the thirty-five tribes.[326] His plebiscite was annulled by the senate on the ground that it had been passed by violence;[327] but the provisions contained in it were afterward legalized by a senatus consultum, and it was finally carried into effect by Cinna as consul in 84.[328] This settlement of the question was approved by Sulla[329] for all the Italians excepting the Marsians and the Paelignians, who were enrolled in one tribe—the Sergia.[330]

The nature of the tribes may be inferred from their object. The intention of the organizer was to introduce the Greek military system, comprising heavy and light infantry, in which the kind of service to be performed depended upon financial[59] ability to provide equipments.[331] Seeing that a classification of citizens with respect to property was necessary for this purpose, Servius instituted the tribes as a basis for the census. That they contained the ager privatus only is indicated by the exclusion from them of the Capitoline and Aventine hills.[332] Their local character is established by the concurrent testimony of ancient writers.[333] Yet even in the beginning they could but roughly be described as districts, for they excluded all public land and all waters and waste places claimed neither by individuals nor by the government. They retained the approximate character of districts so long only as the territory of annexed communities continued to be formed into new tribes. The process came to an end in 241; and it was as early at least as this date that the Roman colonies, not originally in the tribes, were incorporated in them.[334] Thereafter the annexation of new territory tended more and more to render the tribes geographically indeterminate.[335] The process was far advanced by the admission (90-84) of the Latins and Italians with their lands to the existing tribes,[336] which were further enlarged in the imperial period by the incorporation of provincial communities.[337] As consisting of lands, though no longer necessarily adjacent, they were still considered local.[338]

The tribe was also a group of persons; in fact the word applies far more frequently to persons than to territory.[339] During[60] the early republic a considerable degree of harmony was maintained between the two aspects of the institution (1) possibly by a restriction on the transfer of residence,[340] (2) by the change in membership from tribe to tribe, through the censors, on the basis of a transfer of domicile, (3) by the assignment of new citizens to the tribe in or near which they had their homes, (4) by the creation of new tribes for new citizens who did not live in or near the existing tribes. This harmony experienced its first serious disturbance through the enrolment of the landless, irrespective of domicile, in the urban tribes in 304,[341] but continued to such a degree that a hundred years later the rural voters generally still resided in their own tribes.[342] In the last century of the republic the personal tribe, emancipated from the local, depended solely on inheritance and the will of the censors.[343]

The original composition of the personal tribe is determined by its purely military object. It comprised accordingly those only who were liable to service in war. From the early Roman point of view those citizens were qualified who found their livelihood in agriculture.[344] Not all landowners were enrolled in the tribes; for Latin residents,[345] freedmen,[346] widows and orphans,[347] all of whom might possess land, lacked membership. Those proprietors, too, were excluded whom the censors assigned to the aerarii as a punishment. Tribesmen were all[61] the other landowners—adsidui[348] et locupletes[349]—together with the male descendants of military age under their potestas.[350]

Another object of the tribes, referred to Servius by our sources, was the collection of taxes.[351] We know that they afterward served this purpose; and the ancient writers, who could have had no direct knowledge of the intentions of Servius but who assigned to him without hesitation all the later developments of his organization, were in this case especially misled by their false derivation of tributum from tribus or vice versa.[352] A brief study of the facts in the case will prove their inference to be wrong. The most obvious consideration is that had Servius intended the tribes for the levy of taxes as well as for military purposes, he would have included all who were subject to taxation as well as all who were liable to service in the army, whereas in fact he admitted those only who were to serve. It is to be noted that primitive Rome imposed no regular direct taxes on the citizens in general. Every man equipped himself for war even after the introduction of the phalanx;[353][62] doubtless at first the knights provided their own horses;[354] and in short campaigns the soldiers carried their provisions from their own farms.[355] Fortifications and public buildings were erected by forced task-work. The king supported himself partly by gifts from his subjects and partly from the public property, including land.[356] Other early sources of revenue were tolls levied for the use of harbors, boundaries, temples, bridges, roads, sewers, and salt works.[357] In time the idea arose, too, that the person who did not perform military service should help with his property in the defence of the country. The estates of widows and orphans were accordingly taxed to support the horses of the knights.[358] Those men, also, who were exempt from service because they possessed no land[359] and yet had other property were required to pay on it a regular tax. From this connection with the public treasury (aerarium) they were termed aerarii. This class comprised shopkeepers and merchants. Sometimes the censors assigned to it as a punishment men who owned land. The fact that such persons were at the same time removed from their tribes is sufficient proof that the aerarii were originally outside these associations.[360] The cives sine suffragio, or Caerites, after this class had come into existence in 353, were like the aerarii in (1) that they did not belong to the tribes, (2) that they paid a regular tax, (3) that men were placed on their list as a punishment. They may accordingly be regarded as a special class of aerarii, enrolled as[63] they were in a distinct list.[361] Whereas the cives sine suffragio either wholly lacked the franchise, as the phrase implies, or at most had but the right of the Latins,[362] the other aerarii must have voted in the proletarian century.[363]

The ordinary taxes sufficed for the usual light expenses; but in case of especial need an extraordinary tax was imposed upon the citizens. It was called tributum from tribuere, “to apportion,” because it was distributed among the citizens in proportion to their ratable property.[364] We hear of such a tax levied for ransoming the city from the Gauls[365] and another for the building of a wall;[366] but the most common use was for the payment of soldiers, hence the tributum was thought of primarily as a war tax.[367] For this reason tributum came to be correlative with stipendium.[368] It was not often imposed before the introduction of pay in 406.[369] Even then it was not levied every year; it was sometimes refunded when the condition of the treasury permitted; and it fell into disuse after 167.[370] As it was imposed[64] on those only who were liable to military duty,[371] the tribe lists were followed in its collection, and in this sense we may say that it was collected tributim.[372] The work was done by state functionaries, as the tribe, so far as we know, had neither fiscal officers[373] nor a treasury; and possessing no property, it could not be held financially responsible.

An epoch in the history of the tribes was made in 312 by Appius Claudius Caecus the censor, who enrolled the landless citizens, proletarians as well as aerarii, in the existing thirty-three tribes without discrimination.[374] Cives sine suffragio were alone excepted.[375] By giving the landless the upper hand in the assemblies this measure roused the animosity of the proprietors, and thus endangered the peace of the state. In order to soothe the excited feelings of the better class, Q. Fabius Rullianus, censor in 304, supported by his colleague Decius, removed the landless from the rural tribes; but not to deprive them wholly of tribal privileges, he registered them in the four urban tribes. Hence his measure is spoken of as a compromise. Thereafter the landholding and hence more respectable citizens were preferably enrolled in the rural tribes,[376] whereas the landless were confined to those of the city.[377] It was a permanent gain that henceforth tribal membership was a test of perfect citizenship. The censors still had the power to transfer a man from one tribe to another, for instance, from a rural to an urban tribe; but they could not exclude him wholly from the tribes,[65] for that would be tantamount to depriving him of the citizenship.[378] There were still aerarii; individuals and sometimes large groups of citizens were still assigned as a punishment to this class, which, however, was henceforth included in the tribes of the city.[379] Although the ordinary urban tribesmen were usually exempt from military duty, the aerarii were required to serve, at times under especially hard conditions,[380] and were not disqualified for office.[381] In registering them in the tribes Claudius made them, like the landowners, liable to military service and to the tributum according to their means. To effect this object he necessarily assessed their personal property on a money valuation; and in order to treat all tribesmen alike, he must have changed the terms of valuation of the landholders’ estates from iugera to money.[382]

The ancient authorities represent Servius Tullius as the founder of an organization at once military and political—on the one hand the army composed of classes and centuries, and on the other the comitia centuriata. According to Livy[383]—

The ultimate source of this description, as well as of the similar account given by Dionysius, is the censorial document already mentioned,[384] sometimes termed the “discriptio[67] centuriarum,”[385] sometimes “Commentarii Servi Tullii”[386] on the supposition that Servius was the author. In reality it belonged to the Censoriae Tabulae[387] of the period immediately following 269.[388] The document gave a list of the classes, centuries, and ratings, and furnished directions for holding the centuriate assembly. As the military divisions and equipments mentioned by Livy in the passage above had been discarded long before this date,[389] they could not have been described in the document. The account of them found in our sources must, therefore, have been supplied by antiquarian study.[390] The annalist who first used these Tabulae in the censorial archives was Fabius Pictor.[391] Whether Livy and Dionysius derived their account directly from him or through a later annalist cannot be determined.[392] Though Cicero’s source may ultimately have been the same, he seems to have depended largely on his memory and is chronologically, though not in substance, less exact. In assigning seventy rather than eighty centuries to the first class he most probably has in mind a stage of transition from the earlier to the reformed organization.[393]

A brief analysis of this description, as presented by Livy or Dionysius, will prove that it could not apply at the same time to[68] an army and a political assembly: (1) The century of proletarians, which formed a part of the comitia, and which according to Dionysius was larger than all the rest together, was exempt from military service.[394] (2) The unarmed supernumeraries termed accensi velati must in their military function have lacked the centuriate organization, as will hereafter be made clear.[395] (3) The musicians and the skilled workmen who accompanied the army must also be eliminated from the centuriate organization of the army.[396] (4) The seniors, too, lacked the centuriate military organization.[397] (5) Thus the only pedites in the original centuriate system were the juniors. Even the military century of juniors was not in the beginning strictly identical with a voting century; and as time progressed, the one group diverged more and more widely from the other.[398]

Chiefly from these facts, which will become clear in the course of this study, we are warranted in concluding that the army was at no time identical with the comitia centuriata. As one was necessarily an outgrowth of the other, the military organization must have been the earlier. If therefore the original form of the centuriate system is to be referred to Servius Tullius, he will be considered the organizer of the phalanx, which the military centuries constituted,[399] not of the comitia.[400] This result harmonizes with the view of the ancient writers that the comitia centuriata exercised no functions—hence we have a right to infer that it had no existence—before the beginning of the republic.[401]

The following sketch of the development of the Roman military system from the earliest times to the institution of the manipular legion includes those features only which are essential to an understanding of the origin and early character of the centuriate assembly. The view maintained in this volume is, as suggested in the preceding paragraph, that the comitia[69] centuriata in the form described by Livy and Dionysius developed from the early republican military organization, which was itself the result of a gradual growth. Reference is made to equipments chiefly for the purpose of throwing light on the relation of the Roman to the Greek organization and of the various Roman military divisions to one another.

I. The Primitive Graeco-Italic Army and the Origin of the Phalanx

Recent research has brought to light a period of Italian history during which the military system of the Latins and Etruscans closely resembled that of the Mycenaeans, the former doubtless being derived in large part from the latter.[402] The nobleman,[403] equipped in heavy armor, rode forth in his chariot[404] to challenge his peer among the enemy to personal combat. The mass of common footmen were probably grouped in tribes and curiae (Greek phratries, brotherhoods),[405] as in Homeric[70] Greece[406] and among the early Europeans[407] before the development of an organization based on a numerical system. The arms of the footmen must have been lighter, and probably varied with the individual’s financial resources. These common troops could have had no special training or discipline, as they counted for little in war.[408] Yet in the Homeric age of Greece some attempt was made to keep the fighters in line, and to prevent the champions from advancing beyond it to single combat.[409] A similar tendency to even, rhythmic movement may be inferred for the Latin army.[410] The great innovators in this direction were the Lacedaemonians, to whom the honor of inventing the phalanx is chiefly due.[411] This improvement, which made an epoch in European warfare, could not have been later than the eighth century B.C. The phalanx was a line, several ranks deep, of heavy-armed warriors, who moved as a unit to the sound of music.[412] The depth varied as the occasion demanded; it was not necessarily uniform throughout the line, but for Lacedaemon eight may be considered normal.[413] The heavy-armed trooper carried a large shield, which covered the entire body, a helmet, and greaves; his offensive weapons were sword and spear.[414] Tyrtaeus mentions also a coat of mail though not as an essential part of the equipment.[415] The metal of their defensive[71] armor was mostly bronze; their swords and spear-points were probably iron, which the mines of Laconia abundantly supplied.[416] Although it is well known that the phalanx was composed of smaller units, the original organization can only be conjectured. It is not unlikely that in the beginning there were tribal regiments,[417] divided into companies of fifty or perhaps a hundred,[418] which were made up of still smaller groups. The military age extended from the twentieth to the sixtieth year.[419]

The phalanx was readily adopted by other Greek states, which modified it to suit their several conditions. In Athens and probably elsewhere the army had a tribal organization,[420] but a census was introduced in order to determine who possessed sufficient wealth for service on horseback, in the heavy infantry, and in the light infantry; and when once the census classes were adopted, it was easy to extend them to political uses. In this way the four property classes at Athens, probably instituted about the middle of the seventh century B.C.,[421] became under Solon if not earlier a basis for the distribution of offices and other political privileges. Naturally the Greeks of Sicily and Italy adopted the phalanx, and it is reasonable to suppose that the Romans derived it, through the Etruscans,[422] from one of these neighbors.

[72]

II. The Servian Army

As the heavy troops of the Greek line were all armed alike, the Romans probably at first composed their phalanx in a similar way, without gradations of equipment. The complex system of census groupings in the army as we find it immediately before the institution of the manipular legion could only have resulted from a long development. The statement last made finds justification in the fact that the term classis[423] was originally limited to the first or highest census group, all the rest being “infra classem.”[424]

Not only was the organization like that of the Greeks, but the arms, too, were in the main Greek. The soldiers of the classis were equipped with helmet, shield, greaves, spear, and sword; as they wore a cuirass, they used a large round Etruscan buckler[425] instead of the man-covering Dorian shield. They[73] were grouped in centuries,[426] forty of which composed the classis in the fully developed phalanx.[427] The age of service of the juniors, who alone fought in the field, extended from the completed seventeenth to the completed forty-sixth year,[428] whereas the seniors from the forty-seventh to the sixtieth year formed a reserve.

A still nearer connection can be found between the Roman and the Greek horsemen. As is proved by archaeology, the earliest Greek knights had no specialized weapons or armor and were not accustomed to fight on horseback, but were heavy infantry who used their horses simply as conveyance.[429] The same is true of the earliest Roman equites, whose equipment closely resembled that of the Greek horsemen. On account of their swiftness they were primitively called celeres.[430] Although these mounted footmen are generally known as equites, which in this sense may but loosely be translated knights, the Romans did not institute a true cavalry till the period of the Samnite wars.[431] It is a curious fact that some horsemen, Roman as well as Greek, were provided each with two horses,[432] one for the warrior and the other for his squire,[433] and that the mounted[74] soldiers of Etruria were in these respects the same.[434] A further resemblance between the earliest Greek and Roman horsemen lies in the fact that they were noble.[435]

In their account of the growth of the mounted service during the regal period the ancient authorities show great inconsistencies. It seems probable that the early annalists pictured the increase in the knights in a way analogous to that of the senate: at first Romulus formed a troop, or century, from the Ramnes; afterward a second was added from the Tities; and still later the Luceres furnished a third.[436] Then Tarquinius Priscus doubled the number, making six in all, and Servius finally increased it to eighteen centuries. This simple development, itself a reconstruction, was complicated by the desire of the historians to make the number of knights under Servius agree with the number under Augustus, given by Dionysius[437] at about 5000; hence the assumption of 200 or even 300 knights to the century as early as the reign of Romulus.[438] It is possible by clearing away these evident misconceptions to discover the approximate truth.

When the chariot gave way to the horseback rider is not definitely known; at all events the change seems to have taken place under Hellenic influence, and could hardly therefore have been earlier than the beginning of the seventh century B.C.[439] The idea of the sources is that there came to be three troops of horsemen, furnished by the tribes,[440] as well as three regiments of foot, that before Servius the number of troops of horse was doubled, and that the six troops thus formed were named accordingly after the tribes Ramnenses, Titienses, and Lucerenses priores and posteriores respectively.[441] The priores had each two horses, the posteriores one.[442] Hence the essential difference[75] between these divisions was in rank and wealth rather than in the relative time of their institution. Long after Servius both divisions continued to be patrician.[443] As the centuriate organization of Servius applied to the infantry, the cavalry remained little affected by it. The six troops with their old names survived, and eventually became a part of the comitia centuriata. In the military sphere, however, the troop no longer retained its identity; but the whole body was divided into twenty turmae, each composed of three decuries commanded by decurions.[444] When with the institution of the republic the phalanx was split into two legions, ten turmae of cavalry were assigned to each legion.[445] As in historical time the number of horsemen to a legion did not exceed 300,[446] and as we have no reason to suppose[76] that at an earlier period this arm of the service was proportionally stronger, we may conclude that in the Servian phalanx, or double legion, the number did not exceed 600.

From the foregoing discussion it appears clear that the Servian military system rested upon a division of the citizens into four groups, closely corresponding to the Athenian census divisions: (1) the equites priores, like the pentacosiomedimni, (2) the equites posteriores, like the hippeis,[447] (3) the classis, like the zeugitae, (4) the light troops infra classem, like the thetes. The distinction between priores and posteriores rested not upon an assessment but upon a less precise difference in wealth, whether determined by the individual concerned or by the state we cannot know; it represented, too, a gradation of nobility. The distinction between the knights and the classici was one of rank; that between the classis and the soldiers infra classem was alone determined by the census.

III. The Development of the Five Post-Servian Military Divisions on the Basis of Census Ratings

This arrangement was by no means final. Further changes were made in both foot and horse which were to have a bearing on the organization of the comitia centuriata. After a time[448] two additions of men less heavily armed than the classici were made to the phalanx, whether simultaneously or successively cannot be determined. There were now forty centuries of classici, and the additions comprised ten centuries each, the second less heavily armed than the first, though they may both be considered heavy in contrast with the light troops. Perhaps the state according to its ability made up the deficiency in the equipment, so as to render the entire phalanx as evenly armed as possible.[449] It numbered sixty centuries of heavy infantry,[77] composed of three grades which depended upon the census rating.[450] The light troops were also grouped in two divisions on the same principle. The first comprised ten centuries; originally the second may have contained the same number, in which case four were afterward added to make the fourteen known to exist in the fully developed system.[451] There were five divisions of infantry amounting to eighty-four centuries of a hundred men each. Undoubtedly the growth of the army to this degree of strength was gradual, though the successive steps cannot be more minutely traced.[452]

In making the levy the military tribunes selected the soldiers from the lists of tribesmen, taking one tribe after another as the lot determined.[453] The early Romans must have striven to distribute the population as equally as possible among the tribes in order to render them approximately equal in capacity for military service. As long as this equality continued, the officials could constitute the army of an equal number of men from each tribe. These considerations explain the close relation in early time between the number of tribes and of centuries as well as the suggestions offered by our sources as to an early connection between the centuries and the tribes.[454] While there were but twenty tribes we may suppose that the legion comprised but 4000 men, which was raised to 4200 when the twenty-first tribe was added. In this way can we account for the number of centuries to the legion. If but half the available military strength was required, the magistrates might draw by lot ten[78] tribes from which to make the levy.[455] It was an easy matter as long as the heavy troops were limited to the classis;[456] but when two other ratings were added, and when meantime the tribes must have grown unlike in population, it became practically impossible to maintain for each rating a just proportion from the tribes;[457] and perhaps this was the chief reason for the modification in the method of recruiting. When therefore the tribes were increased to twenty-five, and it was deemed inexpedient to make a corresponding enlargement of the legion,[458] a new principle was adopted for the levy: after determining the ratio between the number of men needed and the whole number available, the officers drew from each tribe a number proportionate to its capacity.[459] It would agree well with all the known facts to suppose that the addition of the second and third ratings, followed by a more thorough organization of the light troops, belongs to the early republic (509-387),[460] when Rome needed all her strength in her life and death struggle with hostile neighbors. At the same time the purchase of armor and the increased burden of military duty would help account[79] for the desperate economic condition of the poorer peasants of that epoch.

The proportions of the five ratings—20-15-10-5-2½ or 2—to be discussed hereafter,[461] suggest an explanation of their origin. It would be reasonable to assume that the normal holding of the well-to-do citizen was a twenty-iugera lot and that the Servian phalanx was composed of possessors of that amount, the light-armed being their sons and others distinctly inferior in wealth. In course of a few generations as the population grew, with no corresponding territorial expansion or colonization or industrial development, and with only a limited conversion of waste to arable land, many of the lots became divided and subdivided. The result was a weakening of the phalanx at a time when the state was in the most pressing need of military resources. The institution of the five ratings as a basis for the reorganization of the army was a temporary expedient for meeting the crisis, to be superseded not long afterward by a better system founded on military pay. In all probability the introduction of the five ratings, or at least the beginning of the movement in that direction, should be closely connected with the institution of the censorship in 443 or 435.[462] The supposition would give us a sufficient reason for the creation of this new office at that time, and the strengthening of the army would explain the success of the Romans in the wars immediately following.

How the five ratings were arrayed in battle is unknown. If the front counted a thousand men (milites),[463] the classis comprised four ranks (4000), the second and third ratings one rank each, making in all six ranks of heavy troops (6000).[464] Twenty centuries could be drawn from the two ratings of light troops to complete the eight ranks when needed.[465] But the Romans[80] undoubtedly exercised the same good judgment as the Lacedaemonians in varying their formation to suit the emergency;[466] and for that reason it is wrong to assume the same depth for all occasions or an even depth for any one occasion. The management of long lines one-man deep must have been extremely difficult, if not impossible.[467] The explanation already suggested, that the state supplied the deficiency in equipment,[468] would greatly simplify the case, for there would then exist no need of arraying the census groups in successive lines. Whatever may have been the tactic arrangement, it did not continue long, for soon after the introduction of regular pay, about 400 B.C.,[469] the distinction between the ratings ceased to have an importance for military affairs.

IV. The Question as to the Connection of the Supernumeraries and the Seniors with the Military Centuries

A number of supernumeraries termed accensi velati accompanied the army. The epithet accensi proves them to have been outside the five ratings, while velati describes them as wearing civilian dress. We are informed by the sources that they carried water and weapons to the fighting men, stepped into the places of the dead and wounded, and acted as servants to the lower officers.[470] These men could not have been organized in centuries,[471] for they were drawn up in the rear behind[81] the light troops; they extended along the entire breadth of the army,[472] and must have greatly exceeded one hundred or even two hundred. The musicians,[473] too, who accompanied the army were not grouped in two centuries, for they were distributed throughout the army.[474] There is no reason for assuming exactly two hundred musicians[475] or exactly two hundred workmen,[476] or for supposing that any of the men of this description were organized in centuries in the army. Reasoning in a similar way in regard to the seniors, we conclude that their organization in centuries could not have belonged to the original Servian system. A military century, as the name indicates, must have contained a hundred men.[477] But in any static population there are three times as many men between seventeen and forty-six as between forty-six and sixty[478]—in Rome there were three times as many juniors as seniors; and as the number of junior and senior centuries was equal, the latter could have contained only about thirty-three each, on the supposition that the whole male population between seventeen and forty-six years was organized in centuries.

The mere fact that the senior century contained so few men suggests that it was not a military institution. This impression is confirmed by the information that the seniors were reserved for the defence of the city, while the juniors took the field in[82] active service.[479] When we reflect that even in the early republic the seniors could not often have been called on for defence, as the juniors were ordinarily sufficient for the purpose,[480] that the manning of the walls did not necessarily require a division into companies or an equipment like that for field service, and that when it was thought expedient for the seniors to serve in centuries or cohorts, their enrolment in these companies is especially mentioned, our conviction that the senior centuries did not belong to the original Servian organization grows into a certainty.[481]

V. Conclusions as to the Servian and Early Republican Organizations; Transition to the Manipular Legion

In our search for the Servian and post-Servian schemes of military organization we found it necessary to eliminate from the discriptio centuriarum all the centuries of pedites with the exception of the juniors. But even a military century of juniors could not have remained identical with a voting century; for the[83] former comprised a fixed number and the same for all ratings, whereas in the comitia of historical time the centuries varied greatly in size, many of them containing far more than a hundred men each. In the four lower classes each century contained as many men as the entire first class;[482] and individuals constantly shifted from one class to another as their several properties increased or diminished.[483] It is a mistake, therefore, to think of the army as identical with even the junior centuries of the comitia.[484] Doubtless when the Servian army was first introduced, its organization was made to fit actual conditions, so that all who were liable to service found their place in it; but as the political assembly of centuries was instituted many years afterward, the army with its various enlargements could have kept meanwhile no more than approximate pace with the changing population, and at no time could it include the physically disqualified, who nevertheless had a right to vote in the junior centuries of the political assembly. On the other hand there were soldiers in the army too young to be in the comitia centuriata.[485]

The conclusion as to the strength of the army in the first years of the republic, before the latter had acquired any considerable accession of territory, corresponds closely with a moderate estimate of the population under the conditions then existing. The area of the state was about 983 square kilometers (equivalent to 379.5 sq. mi. or 242,899 acres).[486] Estimating the population of this agricultural community at its maximum of sixty to the square kilometer, we should have less than 60,000 for the entire area.[487] The number of men from seventeen[84] to sixty, the Roman military age, should be about thirty per cent of the population[488]—less therefore than 18,000. If the ratio of juniors to seniors was about three to one,[489] we should have about 13,000 juniors to 5000 seniors. But a deduction must be made for slaves and for the physically incapacitated, leaving perhaps 9000 or 10,000 juniors and 3000 or 4000 seniors. These results are not unreasonable. Making allowance for several hundred supernumeraries,[490] we should then have no more than enough juniors to fill the eighty-four centuries of foot and the six troops of horse. It is clear, therefore, that all available forces were included in the army and that the junior centuries could not have contained more than a hundred men each.

Even before the phalanx had thus been brought to perfection, modifications were being made in the equipment under the influence of the Gallic invasion.[491] The introduction of pay, about 400 B.C., as has been said,[492] broke down the distinction of equipment based on degree of wealth, and not long afterward, probably in the time of the Samnite wars, the phalanx gave way to the manipular legion, which reached its full development in the Punic wars.[493]

VI. The Five Classes and their Ratings

Though originally denoting the men of the first rating, who possessed the fullest equipment,[494] the term classis with an explanatory adjective came to apply to the entire army[495] or to its component parts.[496] The plural “classes” came finally to mean the five census groups, represented by the five timocratic gradations of the comitia centuriata. What had formerly been the classis then came to be known as classis prima, and the “infra classem” ratings were numbered downward second, third,[85] fourth, and fifth. Probably this extension in the use of the word was not made till after the disappearance of the ratings from the army—how much later we do not know. In a speech delivered in 169 in favor of the lex Voconia the elder Cato more than once examined into the meaning of classicus and infra classem.[497] A hasty inference would be that at this late date classis was still strictly limited to the first rating. It is to be noted, however, that the early meaning might be retained in a legal formula long after it had disappeared from general use, that classicus certainly preserved its original meaning notwithstanding the new development of the noun from which it is derived, and especially that the early sense of the terms classicus and infra classem was not generally known in 169, else Cato would not have taken such pains to define them. We know that the ratings were termed classes in 111,[498] and from what has just been said on the Voconian law it seems probable that the development took place long before 169. The circumstance that in their “discriptio centuriarum” Livy and Dionysius make no reference to the distinction between classis and infra classem would favor the supposition that they found no such distinction in their common source—ultimately Fabius Pictor. Hence it is not unlikely that classis was used in its historical meaning of property class in the censorial document from which Fabius derived his knowledge of the fully developed comitia centuriata, and which belonged to the period immediately following 269.[499]

[86]

Before the censorship of Appius Claudius Caecus, 312, military service within the census ratings was based on the possession of land, and the gradations of equipment, while they lasted, must therefore have been determined by the size of the estate reckoned in iugera.[500] Huschke[501] rightly inferred that the number of iugera marking the lower limit of each division must have been proportioned to the later money ratings, and assumed accordingly 20, 15, 10, 5, 2½ or 2 iugera as the respective minimal holdings of the five divisions. Although absolute certainty is unattainable, most scholars accept his conclusions as probable.[502] Before the change was made in the appraisements from amount of land to money, the census gradations ceased to serve a military purpose. In the further discussion of these groups reference is therefore solely to their political character, especially as expressed in the organization of the comitia centuriata. Till the time of Marius, however, the soldiers were ordinarily recruited from the classes—that is, from the citizens who possessed at least the qualification of the lowest group.[503]

The money ratings of 312 are not recorded; we know those only of the time following 269. The ratings of the earlier date must have been in the nominally libral asses then current. For a long time, probably down to 312, the as remained at eleven[87] to nine ounces in weight, then sank rapidly to four, three, and two ounces, reaching the last-mentioned weight in or shortly before 269. In this year or the following was legally adopted the lighter as, weighing two ounces, or a sixth of a pound, and hence termed sextantarian, and the heavier asses still in circulation were henceforth reckoned as sesterces, which now became the unit of value.[504] Two and a half sextantarian asses made a sesterce, and four sesterces made a denarius.[505] The as continued to be copper, whereas the sesterce and the denarius were silver. In consequence of the use of the sextantarian as the ratings must have been elevated to correspond with the decline of the standard; and the result of this change is the well-known series, 100,000, 75,000, 50,000, 25,000, 11,000.[506] There can be no doubt that under the standard used in 312 the ratings were lower than those given. It is incredible that the classis should ever have been appraised so high as 100,000 asses of ten-ounce weight or even of the value of sesterces (5 oz.).[507] But the ratings of 312 have not been definitely ascertained. Assuming but one elevation between the two dates and in the proportion of 4:10:: sextantarian as: heavy as or sesterce, Mommsen[508][88] concludes that the appraisements of 312 were 40,000, 30,000, 20,000, 10,000, and 4400 asses respectively for the five classes. The adjustment however may have been gradual, as was the decline of the standard, and the former need not have corresponded exactly with the latter. But in so far as the Romans failed to bring about this adjustment, the censors must have found it necessary continually to advance the citizens from the lower to the higher divisions.

The ratings mentioned above as established on the basis of the sextantarian standard, namely 100,000, 75,000, 50,000, 25,000, and 11,000 asses for the five classes respectively, are those given by Livy.[509] Several variations affecting the highest and lowest classes are offered by other writers. Dionysius[510] states the appraisement of the fifth class at 12½ minae, which would be 12,500 asses. The usual explanation is that he is dealing in round numbers without especial regard to accuracy, for which reason Livy should be given the preference. It is doubtful however whether Dionysius was so inexact. More probably his estimate depended ultimately on the idea that the minimal number of iugera of the highest class was twenty-five,[511] taken in connection with the decimal ratio between the extreme classes—an interpretation which would help explain variations in the rating of the highest class to be mentioned hereafter; or with less reason we might assume that the statements of Dionysius and Livy represent earlier and later conditions.[512] The limit of 400 drachmas given by Polybius[513] proves a lowering of the minimal rating between 269 and the publication of his history.[514] It may have been made in 217, when the money system was again changed. As Polybius probably considered the drachma, or denarius, to be worth ten asses,[515] the limit which he mentions[89] would be 4000 asses. Cicero states the minimal limit at 1500 asses,[516] and a still lower sum of 375, mentioned by Gellius,[517] marked the line of division between the taxable proletarians and the capite censi, who were exempt from taxation. As the differentiation between the two groups last named must have been effected before 167, when the Romans were relieved of the tributum,[518] the rating given by Cicero could not have been later than that vouched for by Polybius. The limit of 4000 asses, accordingly, had reference merely to military service, whereas 1500 marked at once the political and tributary line of separation between the fifth class and the taxable proletarians.[519] The limit of 375 asses, on the other hand, was far below the fifth class, and had nothing to do with it.[520] The relation of these numbers to one another may be summarized as follows: Those assessed at 4000 or more asses belonged to the fifth class, enjoyed the political rights of that class, and were subject to military service as well as to taxation (tributum); those rated at 1500-4000 asses also belonged to the fifth class, enjoyed the political rights of that class, and were subject to taxation but exempt from military service; those rated at 375-1500 asses were proletarians, below the fifth class but subject to taxation; those rated below 375 asses, the capite censi, were exempt from taxation.

As regards the rating of the highest class, the elder Pliny[521] states it at 110,000 asses, which may be a copyist’s error for 100,000 or for 120,000; the estimate of Paulus Diaconus[522] is 120,000 and of Gellius[523] 125,000. If the manuscripts have correctly preserved these numbers, they may represent computations based on a varying number of iugera, from twenty-two to twenty-five[524] at the rate of 5000 asses a iugerum—a valuation[90] which may have been given in the original annalistic source (Fabius Pictor). From the fact that Pliny assigns this rating to Servius as author, and that Gellius speaks of it in the past, we must infer that it was not due to a relatively late change. Indeed the rating must have remained unaltered to the time of Polybius,[525] who states that those appraised at 10,000 drachmas wore the cuirass—according to Livy[526] and Dionysius,[527] the distinctive equipment of the first class.[528] In the same age the Voconian law, 169, provided that a man registered by the censors as worth 100,000 asses or more should not bequeath his property to a woman.[529] While speaking in favor of the measure the elder Cato expounded the distinction between the classici and those who were “infra classem.”[530] Strictly following Cato’s definition, Gellius[531] explains the classici as those of the first class in contrast with the members of the lower classes, who are infra classem. Evidently the classici are to be identified with those rated at 100,000 asses, as given by Gaius.[532] The sum of 100,000 sesterces, in place of asses, represented by later writers[533] as the one fixed by this law, is due either to a late interpretation or to[91] an amendment.[534] The minimal qualification of the first class must therefore have continued unchanged from 269 to the passing of the Voconian law, 169, and the composition of the History of Polybius.[535] From the latter event to the tribuneship of Tiberius Gracchus little time was left for an increase, which certainly the Gracchi and their successors would take no interest in bringing about. Further depreciation in the weight of the as, by the reduction to a half ounce through the Papirian law of 89,[536] had no effect on the valuation, as the standard was the silver sesterce, the as having merely the fiduciary value of a quarter sesterce. Apart from the accounts of Livy and Dionysius already considered, no reference is made to the valuation of the intermediate classes, unless it be a passage in Livy[537] to the effect that freedmen possessing country estates worth at least 30,000 sesterces were enrolled in the rural tribes by the censors of 169, which is interpreted by Mommsen[538] to refer to the qualification of the second class. This is true if, as has been assumed above, the censors still reckoned two and a half asses to the sesterce.[539]

VII. Belot’s Theory as to the Ratings

Notice must be taken of a theory proposed by Belot,[540] that at the time of the First Punic War, owing to an economic revolution which enhanced prices, and to the decrease in the weight of the as, the five ratings as stated by Dionysius for the earlier period were multiplied by ten, giving for the future 1,000,000, 750,000, 500,000, 250,000, 125,000 asses for the five classes respectively.[541] The theory is supported with remarkable learning and skill. There can be no doubt as to the lowering of the weight of the as or of the economic revolution which increased prices. Large valuations of estates such as he mentions are[92] found in the sources. For example in 214 the government ordered[542] that—

Belot’s attempt to identify the highest of these appraisements with the rating of the first class is unsuccessful, as will immediately appear. The object of the order issued by the government in 214 was to provide crews for the fleet of that year. Although the hundred and fifty ships to be manned[543] seem to have been triremes, we may consider them quinqueremes so as not to underestimate the number of men necessary. Reckoning 375 men to the ship,[544] we should have 56,250 men for the entire fleet. But according to Belot[545] there were 22,000 knights at this time, whose census rating was 1,000,000 asses, and who accordingly would have to furnish seven men each for the navy, which would amount to 154,000, or more than enough to man three such fleets as that of the year under consideration. But as the knights constituted only a twelfth of the total number of registered citizens of that period,[546] most if not all of whom must according to Belot have been assessed at 50,000 or above, we shall be obliged at least to double the 154,000 sailors furnished by the knights to obtain the whole number demanded by the government. The absurdity of the result condemns the premises. The minimal census of the knight could not have been materially if at all above 100,000 asses,[547] and the great mass of citizens must have been rated below that sum. Other features of his theory need not be considered here. The truth is that the great accumulation of wealth benefited but few; and notwithstanding the advance in the money value of property,[93] the mass of people remained so poor that the state could not disturb the census ratings, however out of harmony with the new conditions they seem to have become. No suspicion should be thrown on the continuance of these small valuations by the circumstance that occasionally the state compelled the wealthy to contribute to the burden of war according to their ability, as in 214, and increased the penalties for the crimes and misdemeanors which the rich and powerful were wont to commit.[548]

VIII. The Post-Servian Equites

The classes, as developed after Servius, have now been considered sufficiently for an appreciation of their relation to the comitia centuriata. It remains to discuss from the same point of view the post-Servian alterations in the equestrian organization.

In the earliest period when the warriors in general equipped themselves at their own expense,[549] the equites provided their own horses. But in time as the patricians ceased to be the only wealthy class in the community, and as they began to lose their political advantages, their duty of keeping one or two horses came to be felt as onerous, and some means of lightening it was sought for. The only private property which was free from the burden of supporting military service was that of widows and orphans. The government determined accordingly to levy a regular contribution on this class of estates in the interest of the equites. The eques was allowed ten thousand asses, or one thousand denarii (aes equestre), with which to purchase his horse or horses for the ten years of service and two thousand asses (aes hordearium) annually for maintenance.[550] He was not paid the money in advance, but was given security for the required sums,[551] which were gradually to be made good from the special kind of tax here described. When these equestrian funds were first granted cannot be absolutely determined. Cicero[552] assigns their institution to Tarquinius Priscus, Livy[553] to Servius,[94] Plutarch[554] to Camillus in the year of his censorship, 377. For obvious reasons the earlier dates are suspicious, whereas the last has the advantage of connecting the institution of these funds with the general movement for the public support of military service. When in the war with Veii regular military pay was introduced, the eques on account of his more burdensome duty, perhaps too because of his higher rank, was allowed three times the pay of the legionary.[555] It was afterward decided to deduct the aes hordearium, probably also the aes equestre, from his pay.[556] Meanwhile as wars were waged on an ever increasing scale, the patricians, who were dwindling in number, could not furnish all the cavalry needed. This want was especially felt in the struggle with Veii, whereupon wealthy plebeian youths[557] came forward and offered to serve with their own horses.[558] This is the first known instance of voluntary equestrian duty, doubtless often repeated at crises during the remainder of the republican period. In the first case at least the state provided for the keep of the horses. The volunteers were of the same grade of wealth as the conscripts; they were held in equal honor,[559] and most probably their years of voluntary service were counted in with their regular duty in making up the required number.[560] Service equo privato could also be imposed as a punishment. The only known instance, however, was that required by the censors of 209 of the equites who had disgraced themselves at[95] Cannae. Their horses were taken from them, their campaigns equo publico were not counted to their credit, but they were required to serve ten years equis privatis.[561] These are the only instances of service with private horses mentioned in history. In all ancient literature is no suggestion that the equites equo privato formed a rank by themselves or were an institution.[562] It should also be said that the injustice of furnishing some with horses and of compelling others to go to war at their own expense, unless by way of punishment, was contrary to the spirit of the constitution. This conclusion is supported by the elder Pliny’s[563] definition of the military equites, which makes the public horse an essential. From the time therefore when the state began to support the mounted service in the way described above, the equites equis publicis continued to be the only regular citizen horsemen.

The number of equites with public horses is approximately determined for any time by the number of legions then enrolled. The Servian phalanx, as has been noted,[564] consisted of two legions, which remained the normal number through the fifth century. But in the wars with Samnium and Pyrrhus Rome was able regularly to support four legions.[565] The military force could not have been doubled before the incorporation of the Veientan territory early in the fourth century;[566] most probably the enlargement belongs to still later time. The increase in the[96] infantry required a corresponding enlargement of the mounted service. At least twelve hundred equites were henceforth required for active duty. Making allowance for reserves and ineffectives, the government raised the number of equites equo publico to eighteen hundred. The twelve new centuries were open alike to patricians and plebeians, whereas the old six remained for a time exclusively patrician. This seems to have been the condition at the opening of the first war with Carthage. During the Punic wars the number varied greatly, sometimes reaching a total of more than five thousand in the field, not counting reserves.[567] After the war with Hannibal the state, drained of men and money, allowed the cavalry to dwindle.[568] Viewing this condition with alarm, the elder Cato[569] urged that the number should be increased, and that a minimal limit be fixed at 2200. Probably at the same time he proposed that the legion should be strengthened. His measure must have been adopted, for after his censorship we find the legion regularly consisting of 5200 foot and 300 horse.[570] Under Augustus there were times when 5000 equites[571] equo publico took part in the parade which he revived.[572] As no reason can be found why Augustus should suddenly increase this class, we must conclude that there were probably about 5000 equites equo publico in the late republic.

As long as the cavalry remained exclusively patrician, a census qualification was precluded. Though Cicero and Livy refer the equestrian census to Servius Tullius, their vagueness[97] on this point shows that they lacked definite information.[573] It must have been introduced at the time when the patriciate ceased to be an essential qualification, when the levy came to be made on the basis of wealth rather than of blood. This change should be assigned to the early part of the fourth century B.C.[574] For a time the census was that of the first class.[575] In 214 it was still 100,000 asses, or not much above, as has already been proved.[576] In the late republic and under the emperors the minimal rating was 400,000 sesterces.[577] When it was raised to this amount is unknown.

I. Auspicia Privata

Auspices (auspicia) were signs sent by the gods through which they declared their will to men. Those given in answer to prayer were impetrativa (or impetrita), those sent unasked oblativa. The first were necessarily favorable; the second might be either favorable or the contrary.[578] To take or to hold auspices was to seek such signs in due form. Auspicia, or the singular auspicium, also designated the right or the power to perform the function. They were not a means of prophecy of future events but of ascertaining whether the deity approved a proposed action.[579] With reference to their object and to the persons qualified to take them, they were of two kinds, private and public. Whereas the public auspices, taken in behalf of the state, belonged exclusively to magistrates, the private were open to all;[580] and in early times a Roman always resorted to them before beginning any important business.[581] Though it was permissible to consult any deity,[582] the greatest weight attached to the approval of the supreme god Jupiter.[583]

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The plebeians, who as long as they were excluded from the magistracies were necessarily debarred from the auspicia publica, enjoyed equally with the patricians all private rights of religion; in fact if the nobles had wished, they possessed no legal means of preventing the holding of auspices or the performance of any other sacred rite in private plebeian houses. Not only is it stated that all had a right to auspicate,[584] but the formula for summoning troops given by Cincius[585] implies that the soldiers, who were mainly plebeian, were accustomed to perform the rite. We find accordingly the elder Cato, a plebeian, attending to the ceremony in his own home.[586] The patricians, however, who believed themselves to be nearer and dearer to the gods than were the plebeians, and who in their struggle to keep themselves a closed caste and the offices barred against the lower social class, declared that conubium if granted would disturb the private as well as public auspices.[587] But this assertion need not signify that the plebeians had no private auspices, it might indicate merely a difference between the plebeian and patrician ceremonies, naturally implying the superiority of the latter. Again when on a certain occasion according to Livy a tribune of the plebs inquired of a patrician why a plebeian could not be made consul, the reply was that no plebeian had the auspices, reiterating that the decemvirs had forbidden conubium to prevent the disturbance of the ceremony by uncertainty of birth.[588] Reference might here be simply to the auspicia publica, with which alone the consul was concerned. However this may be, the patrician claim was indignantly repudiated by the plebeians, and the historian can say no more than that it was “perhaps true.” Another passage from Livy usually interpreted in support of the theory[102] that the patricians alone had private auspices represents them, before the opening of the offices to the commons, as saying, “So peculiar to us are the auspices that not only the patrician magistrates whom the people choose are elected under the auspices, but we ourselves under the sanction of the same rite without a vote of the people appoint the interrex, and we as private persons hold auspices, which they do not hold even as magistrates.”[589] This passage is perfectly intelligible to one who bears in mind that in the late republic private auspices had disappeared,[590] and that therefore when the word auspicia is used without qualification by a late republican or imperial writer, it always has reference to the public ceremonies.[591] In the quotation just given, accordingly, nothing more is meant than that the patricians, who have the exclusive right to the offices, are alone competent to perform the public religious ceremonies which belong to the magistrates. Reference in the quotation to the auspices of private persons signifies that when there was no magistrate competent to hold the election of consuls, the public auspices returned to the senate, the patrician members of which proceeded under auspication to appoint an interrex for holding the elections. In this case the senatorial patricians, it was asserted, attended to the ceremony not as magistrates but as private persons, though the rites were themselves public. As distinguished from magistrates, the senators were privati. It was not, then, as mere citizens but as patrician members of the senate that they performed the rite. Further light is thrown on this subject by the fact that in the agitation for the opening of the augural and pontifical colleges to the plebeians in 300, the patricians repeated the assertion that with them alone were auspices, they alone had family (gens), they alone possessed true imperium and auspicium in peace and war.[592] This claim they had the effrontery to make despite the fact that plebeian consuls had been taking public auspices for more than[103] sixty years. In the pride of their blood they claimed that theirs alone were strictly legal (iustum). Notwithstanding such partisan assertions the facts thus far adduced lead unmistakably to the conclusion that the plebeians equally with the patricians enjoyed the right to private auspices.[593]

II. Auspicia Publica Impetrativa

The right to public auspices belonged primarily to patrician magistracies[594]—those which in the early republic were filled only by patricians, but which continued to be called patrician after they were open to plebeians. All elections and appointments to such offices were auspicated;[595] and their incumbents were expected to seek the previous approval of Jupiter for every important act of their administration.[596] The king, interrex, dictator, consuls, praetors, and censors had the auspicia maxima; the others the minora.[597] The praetor, as colleague of the consuls, was elected under the same auspices with them, that is, in the same meeting of the assembly, whereas the censors, not being colleagues of the consuls, were elected under different auspices. Between magistrates who were not colleagues there could be no collision in the auspicia impetrativa; those of the censors neither strengthened nor vitiated those of the consuls or praetors, nor were strengthened or vitiated by them. In case of a conflict between colleagues, the greater auspices annulled the lesser, and equal auspices annulled each other.[598] For the exercise of a function properly belonging to a magistracy, the incumbent performed[104] the ceremony at his own will and pleasure, unless expressly forbidden by a superior;[599] but one who undertook a deputed duty had to ask the auspicium of a magistrate who was competent to perform the duty in his own right. Thus the quaestor, who was not qualified by right of his office to call the comitia centuriata, found it necessary to do so in his capital prosecutions. In such a case he asked of the praetor or consul the right to hold auspices for summoning this assembly.[600] Whether the pontifex maximus held auspices in his own name, or was obliged, like the quaestor, to apply for them to a higher secular official, is unknown; at all events it was necessary for him to auspicate the comitia calata, over which he presided.[601] It seems probable that the tribunes originally did not have the right as they were not magistrates; but when they came to be so considered, they acquired the auspicium. All magistrates—necessarily including the tribunes—who convoked the senate had previously to perform the ceremony;[602] Cicero[603] seems to include the tribunes among the magistrates who had the auspicium; and as further proof the very expression “patriciorum (magistratuum) auspicia”[604] used by Messala implies the existence of “plebeiorum magistratuum auspicia.” It was not the custom of the tribunes, however, to auspicate their assemblies of the plebs.[605]

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For assistance in auspication the magistrate summoned any person he pleased, who was rarely if ever a public augur.[606] An augur,[607] whether private or official, was a person who knew how to hold and to interpret auspices.[608] A college of public augurs[609] for the service of the state was established in the most primitive times. Probably comprising three members, one from each tribe, it was gradually increased till under Sulla it reached fifteen.[610] The members of the college were neither[106] magistrates[611] nor prophets. They were rather the wise,[612] experienced[613] keepers and expounders of a sacred science and art[614]—the “interpreters of Jupiter All-Great and Good.”[615] Having to do with religion, they were sacerdotes, like the pontiffs, though not offerers of sacrifice (flamines).[616] The functions which they exercised independently of the magistrates included the inauguration of religious officials (inaugurare sacerdotes), the blessing of fields twice a year, and of the people after the close of a war.[617] In attending to such duties (auguria) only did they exercise their right to the auspices.[618] In a dependent though far more influential position they acted as the professionally skilled advisers and assistants of the magistrates in all matters of peace and war.[619] If a magistrate was not himself an augur,[620] it was of the utmost importance to have their service; for the science of discovering and interpreting the divine omens was intricate, mistakes were easy, and the slightest oversight might vitiate the whole business in hand. When in doubt as to the validity of the ceremony, either the magistrate to whom it belonged or the senate could refer the case to the college of augurs, which thereupon gave an opinion[107] in the form of a decree. The senate then acted on the matter according to its judgment.[621] In case a law had been passed, a magistrate elected, or any public act performed against its wishes, it could inquire of the college of augurs whether the election or other act had been duly auspicated; and should a defect be alleged, the senate could annul the act or request the magistrate to resign. It required unusual courage in a man to keep himself in office in defiance of the authority of the senate and of the religious feeling of the whole people.[622] These considerations account for the great importance attaching to the presence of augurs in the comitia—a subject to be treated in another connection.[623]

The service of augurs was most needed in establishing the terrestrial templum[624]—a carefully marked out, oriented spot which the magistrate occupied while performing the rite.[625] Whereas the commander of an army generally made use of chicken auspices (signa ex tripudiis), which did not require their assistance,[626] they were doubtless always called upon to[108] institute templa in or near the city.[627] For the exercise of their art they divided the world, so far as known to them, into augural districts. The central district was the city, limited by the pomerium,[628] beyond which, probably extending to the first milestone,[629] lay a zone termed ager effatus,[630] whose boundaries were marked by cippi.[631] The rest of the world within their sphere of knowledge they divided into ager Romanus, which in its larger sense included the two districts above mentioned, Gabinus, peregrinus, hosticus, and incertus.[632] For the comitia the two inner regions were alone important: (1) the auspication of assemblies held in the city had to be performed within the pomerium; (2) as often as the magistrate in passing from the city to the Campus Martius to hold the comitia centuriata crossed the pomerium,[633] or more strictly the brook Petronia,[634] he was obliged to take the special auspices of crossing. Beyond the ager effatus assemblies were not ordinarily held.

Originally the most common form of divination must have been the watching of the flight of birds, for it is from this ceremony that the word auspicium is derived.[635] Legend accordingly asserts that Romulus founded the city on the Palatine under the auspices of twelve vultures.[636] Before the end of the republic, however, all other forms of public auspicia impetrativa in the city had given way to the caelestia, especially the lightning and[109] thunder.[637] The reason is that the heavenly signs could be most easily understood and carried greatest weight; whereas other auspices had to be held for each individual act, the celestial omens of the morning served the magistrate for all his undertakings during the entire day.[638] The effect of heavenly signs on assemblies of the people, however, was peculiar. Not only were comitia and contiones interrupted by storms;[639] not only was it impious to hold an assembly while it was lightning or thundering,[640] but even while the magistrate was auspicating at daybreak, if a flash of lightning appeared on the left—a sign favorable for every other undertaking—he dared not hold the assembly on that day.[641] Some favorable comitial sign the magistrate was supposed to perceive,[642] but what it was we do not know.

The general rule that the auspices should be taken for an act on the very spot on which the magistrate intended to perform the act applied to the comitial auspices. For meetings on the Capitoline Hill they probably used the temple of Jupiter, dedicated for all time;[643] for assemblies in the comitium the rostra, also a templum;[644] and for the comitia centuriata the president’s platform in the Campus Martius.[645] Not only patrician magistrates but also tribunes of the plebs occupied templa in transacting business with the people.[646]

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Between midnight and morning[647] on the day of assembly the magistrate repaired to the templum.[648] There, placing himself on a solid[649] seat at the door, usually facing eastward, he watched the heavens (spectio). Meanwhile he first asked the attendant, who always sat near,[650] whether there was silence.[651] If the answer was affirmative, he prayed Jupiter for a sign, which he described in a formula termed legum dictio,[652] whereupon the attendant declared he saw it.[653] In case of non-appearance of the sign or of a disturbance of the observation, the auspication was deferred to another morning.[654] Before the time of Cicero, however, the ceremony had been so reduced to a pretence as practically to eliminate the possibility of failure.[655]

Both curiate[656] and centuriate[657] assemblies were auspicated. Although for the tribal assemblies the question is more difficult, it seems reasonably certain that whereas a patrician magistrate took the auspices for the comitia tributa,[658] plebeian magistrates (tribunes and aediles of the plebs) did not.[659]

As to whether contiones were auspicated we are not clearly informed. The question concerns those only which were held by patrician magistrates. The auspication of comitia necessarily extended to the contio immediately preceding.[660] It is[111] known, too, that the censors auspicated the lustral gathering of the centuries,[661] hence we may infer that magistrates and sacerdotes were accustomed to take auspices for formal religious assemblies.[662] With these exceptions contiones were doubtless held without auspices by patrician as well as by plebeian magistrates.

III. Auspicia Publica Oblativa

If Jupiter had approved the holding of an assembly, the magistrate was not for that reason necessarily done with auspices. Though the impetrativa may have favored, prohibitive oblativa were still possible, for circumstances might cause the god to change his mind so as to forbid what he had previously sanctioned; and the warning omen might come at any time before the act was completed. Sometimes the magistrate himself discovered, or for the accomplishment of his purpose pretended to discover, the evil omen. When for instance Pompey was holding an assembly for the election of praetors, and Cato, a political opponent, offered himself as a candidate, Pompey, seeing the assembly unanimous for this man, declared that he heard a clap of thunder, and thus by an adjournment succeeded in preventing the election.[663] Sometimes the magistrate was informed of the omen by (1) a private person, (2) an augur, or (3) another magistrate. In the first two cases the report was termed nuntiatio, in the third obnuntiatio.[664] Information received from a[112] private citizen the president could credit or not as he saw fit, or he could declare it irrelevant;[665] but the law compelled him to accept the nuntiatio of an augur or the obnuntiatio of another magistrate.

Prohibitive auspicia oblativa included evil omens of all kinds. When in 310 the dictator called the curiae for passing the lex de imperio, it chanced that the Curia Faucia was the first to vote (principium). Now this curia was ill omened because on two earlier occasions it had happened to be principium at a time of great national disaster. The dictator accordingly adjourned the meeting till the following day, when he again summoned it after renewing the auspicia impetrativa.[666] A case of epilepsy, by vitiating the business of the assembly, required an adjournment; and for that reason the malady was called the comitial sickness.[667] In the later republic the chief oblativa had come to be caelestia; and it could happen that the auspicia impetrativa of any magistrate might as oblativa vitiate the comitia of another. For this reason when a higher magistrate was about to hold an assembly, he forbade the taking of auspices by all inferior to him, for fear they might annul his proceedings.[668]

Although the augurs had neither the auspicia impetrativa nor the right to watch the sky for unfavorable omens,[669] they were competent to report (nuntiatio) unexpected oblativa to the magistrates.[670] Their object in attending the comitia accordingly was[113] not only to assist the president with their special knowledge,[671] but also to witness the religious legality of the proceeding. In the latter function the augur derived great influence[672] from the possibility of an investigation into such legality by the augural college and the senate, which might result in the annulment of the act.[673] For this reason witnessing augurs were granted the privilege of adjourning the assembly in case they perceived unfavorable omens.[674] Cicero[675] describes in detail such an adjournment of an electoral assembly of centuries: “Behold the day for the election of Dolabella! The prerogative century is drawn by lot, he (the augur) remains quiet. The vote is announced, he is silent. The first class is called and the announcement made. Then as usual the suffragia (of the equites?) were summoned; then the second class is called. All this happened more quickly than I have told it.

“When the business is over, that excellent augur says, ‘We adjourn to another day.’ O remarkable impudence! What (omen) had you seen? What had you felt? What had you heard?” Antony, who was both consul and augur, presiding over the electoral assembly, allowed the voting to continue till a majority was nearly reached in favor of Dolabella, when, making use of the augural formula, he adjourned the meeting. This procedure was in itself legal; but Antony had from the beginning of the year boasted of his intention to prevent through augury this man’s election. As only magistrates, through their right to the spectio, to be explained hereafter, could with certainty predict an evil omen,[676] it was evident that Antony, acting merely as augur, made a fictitious report.

Augurs were always present at meetings of the curiae,[677] of[114] the centuries,[678] and of the tribes under the presidency of a patrician magistrate.[679] That they attended the meetings of the plebs as well and had the same relation to the plebeian as to the other assemblies is necessarily implied in Cicero’s[680] question, “What shows greater religious power than to be able to grant or refuse to grant the right to transact business with the people or with the plebs?”

If the person who reported the evil omen was not an augur but a magistrate, the president was equally bound to heed it and to dismiss the assembly;[681] and the force of the obnuntiatio was not in any way affected by the relative official rank of the two persons concerned. When accordingly a higher magistrate had set a day for an assembly, he forbade all inferior magistrates not only to take the auspicia impetrativa,[682] but also to watch the sky—de caelo servare—for any purpose on that day, for fear that some omen unfavorable to the comitia might be seen.[683] A consul for instance could prevent a quaestor from scanning the heavens on any particular day; and the senate on the rare occasions when it felt itself sufficiently strong, suspended for a particular act of the assembly the right of all magistrates to receive and to announce unfavorable omens.[684] In the absence of senatorial interference it remained possible for any higher magistrate to scan the heavens—de caelo servare—on an assembly day appointed by another, and to vitiate the comitia by reporting an unfavorable omen. We find accordingly a consul obnuntiating against a colleague[685] and against the pontifex maximus,[686][115] a praetor against a tribune of the plebs,[687] and a tribune against a consul[688] or a censor,[689] as well as against a colleague.[690]

So certain was it that a magistrate who looked for a bad omen would see one that the expression “to watch the sky” became equivalent to discovering an unpropitious sign. The rule was therefore formulated that “religion forbade the transaction of any business with the people when it was known that the sky was watched.”[691] If accordingly a magistrate announced that he intended to scan the heavens on the day appointed for an assembly, this declaration was in itself sufficient in the ordinary course of events to compel a postponement. In the year 57 Milo, a tribune of the plebs, pushed the custom to extremes by declaring his intention to observe the sky on all comitial days.[692] Strictly the observation had to be made and reported before the assembly met. “Can any one divine beforehand,” Cicero[693] asks, “what defect there will be in the auspices, except the man who has already determined to watch the heavens? This in the first place the law forbids to be done in the time of an assembly; and if any one has been observing the sky, he is bound to give notice of it, not after the comitia are assembled, but before they meet.” In the case belonging to the year 57 referred to above, Milo, the tribune, came into the Campus Martius before midnight in order to anticipate the arrival of the consul Metellus, who wished to hold the elections. The assembly ordinarily met at sunrise, and[116] could not convene after midday. Milo accordingly remained on that day till noon, without seeing the consul. Then Metellus demanded that for the future the obnuntiatio should be served on him in the Forum; it was unnecessary, he said, to go to the Campus before daybreak; he promised to be in the comitium at the first hour of the day. As Milo was coming into the Forum before sunrise on the next comitial day, he discovered Metellus stealing hurriedly to the Campus by an unusual route. The tribune came upon him and served the notice.[694]

The consul’s announcement of intention to watch the sky might be strengthened by a proclamation declaring certain or all comitial days for the remainder of the year to be holidays, on which the people could not legally transact business in assembly.[695]

Although the obnuntiatio doubtless originated in the early republic, it played no considerable part in political strife till after the Gracchi. A great impetus to the abuse of the power was given by the Aelian and Fufian laws, which were probably two plebiscites[696] passed about 150.[697] What features of these statutes were new has not been precisely determined. It is certain, however, that they made possible the condition in which we find the spectio and obnuntiatio before the legislation of Clodius on the subject in 58. As the tribune did not originally have the obnuntiatio, we may infer that in all probability these laws granted him the right to exercise it against patrician magistrates[117] in the way described above. Similarly from the fact that the plebeian tribal assembly was not originally subject to religious obstruction on the part of the government, it is reasonable to conclude that the Aelian and Fufian statutes gave the patrician magistrates the obnuntiatio against that body.[698] It was equivalent to a power of veto, which the aristocracy could now exercise upon tribunician legislation, hence Cicero[699] regards the two statutes as most holy[700] means of “weakening and repressing the fury of the tribunes,” and as the “surest protection of the commonwealth.”[701] Notwithstanding the opinion of Lange,[702] that the obnuntiatio was restricted to legislation, it seems clear from the words of Cicero,[703] as well as from the lack of reference in the sources to such a limitation, that it applied equally to elections. So long, however, as the nobility could depend for support upon the tribunes, it had little need of such a power. But in the last years of the republic, after the tribunician veto had been undermined by Ti. Gracchus and Appuleius Saturninus, and the tribunes were again acting independently of the senate as in the early history of their office, optimates and populares, taking full advantage of the Aelian and Fufian laws, alike exploited the auspices recklessly for partisan objects. Their behavior was a sign of both religious and political disintegration. Vatinius, tribune of the plebs in 59, had the boldness utterly to disregard these statutes;[704] and in 58 the tribune Clodius repealed them in so far as they affected legislation,[705] whereas for elections the obnuntiatio still remained in force.[706] The misuse of auspices for political purposes dates back, according to Livy,[707] to the beginning of the Samnite wars.[118] Although this may be an anticipation of later conditions, there can be no doubt as to the attitude of statesmen toward the custom in the closing years of the Punic wars.[708] In the time of Clodius and Cicero, while some maintained a sincere belief in these ceremonies, doubtless the great majority of public men saw in their use nothing more than political chicanery calculated, by deceiving the multitude, to keep the real power in the hands of a few.[709]

In treating of the distinction between comitia and concilium scholars have invariably begun with the juristic definition of Laelius Felix,[710] quoted by Gellius,[711] “He who orders not the whole people but some part of it to be present (in assembly) ought to proclaim not comitia but a concilium;” they have limited themselves to illustrating this definition, and to setting down as lax or inaccurate the many uses of the two words which cannot be forced into line with it. The object of this discussion, on the contrary, is to consider all the occurrences of these words in the principal extant literature, especially prose, of the republic and of the Augustan age—a period in which the assemblies were still in existence—for the purpose of testing the definition of Laelius, and of establishing new definitions by induction in case his should prove wrong.

It is convenient to begin with Livy, who though an imperial writer, and under the stylistic influence of his age, probably adhered in the main to the technical terminology of the republican annalists from whom he drew. The first point which will be established is that in Livy’s usage the difference between[120] comitia and concilium is not a difference between the whole people and a part of the people.[712]

The plebeian tribal assembly is termed comitia in Livy ii. 56. 1, 2; ii. 58. 1; ii. 60. 4; iii. 13. 9 (“Verginio comitia habente conlegae appellati dimisere concilium,” in which comitia and concilium in one sentence are applied to the same assembly); iii. 17. 4 (the comitia for passing the Terentilian law, which from Livy’s point of view was the plebeian assembly);[713] iii. 24. 9; iii. 30. 6; iii. 51. 8 (comitia of plebeian soldiers for electing military tribunes and tribunes of the plebs); iii. 54. 9, 11: (plebeian comitia under the pontifex maximus); iv. 44. 1; v. 10. 10; vi. 35. 10 (“Comitia praeter aedilium tribunorumque plebi nulla sunt habita”); vi. 36. 9 (the comitia for voting on the Licinian-Sextian laws); vi. 39. 5; xxv. 4. 6; xxxiv. 2. 11; xlv. 35. 7. Other examples of comitia of a part of the people are Livy ii. 64. 1 (as the plebeians refused to participate in the consular election, the patricians and clients held the comitia); xxvi. 2. 2 (comitia held by the soldiers, and hence by only a part of the people, for the election of a propraetor). Still more to the point are the comitia sacerdotum: for electing a chief pontiff, Livy xxv. 5. 2; for electing an augur, xxxix. 45. 8; for electing a chief curio, xxvii. 8. 1. Comitia sacerdotum were composed of seventeen tribes, and hence of only a part of the people.[714] Lastly is to be noted the fact that the plebeian assembly met on a comitialis dies; Livy iii. 11. 3.

It is now sufficiently established that Livy often applies the term comitia to the assembly of plebs and to other assemblies which included but a part of the people. It is equally true that he uses concilium to denote an assembly of the whole people. The principal instances of Roman assemblies are:

These instances are well known, and have often been discussed. It is enough for our purpose to note here that they prove Livy’s willingness to designate assemblies of the whole Roman people as concilia. But Mommsen[715] was not satisfied with regarding all these cases as inaccurate. In spite of Laelius he believed that concilium could sometimes properly apply to assemblies of all the people. With reference to the first example given above he says that where concilium denotes an assembly of all the people, the contio is meant—in other words, a concilium of all the people is an assembly which has not been summoned with a view to voting, and is not organized in voting divisions. This new definition might explain example (1), for possibly Livy did not think of the first Roman assembly as voting on the laws which Romulus gave, or even as organized. Unfortunately Mommsen tries to support his definition by example (2), which refers to the assembly for the trial of Horatius. But in ch. 26. 12 the same assembly, which must have been the gathering of the curiae, and which Cicero[716] speaks of as comitia, voted the acquittal of the accused. Hence it could not have been a mere contio. Another passage cited in support of his view, Livy ii. 7. 7, example (4), represents the consul as calling the people to a concilium. First he addressed them (“in contionem escendit”), and afterward laws were passed on the subject of which he treated in his speech—evidently by the same assembly; hence the concilium populi here mentioned was something more than a contio. Another illustration which Mommsen offers, but which, having to do with a Roman assembly only by implication, is not included in the list of examples given[122] above, is Livy v. 43. 8: “When he had pushed into the midst of the contio, though hitherto accustomed to keep away from such concilia.”[717] The passage refers to a meeting of the Ardeates for consulting in regard to the sudden approach of the Gauls. Gatherings of the kind were called concilia, but the word contio is also introduced into the passage with reference to a speech made in the assembly. The implication is that such concilia of all the people for deliberation were held also at Rome. The circumstances indicate that it met with a view also to taking action, and that it was therefore not a simple contio. This passage accordingly offers no support to Mommsen’s view that when applied to the whole people concilium is merely a listening, not an acting, assembly.[718] Summing up the evidence for the new definition of concilium, we may say that, were it true, it might apply to Livy i. 8. 1, though it is unessential to the explanation either of this passage or of any other. A single case, too, even if it were clear, is not a sufficient basis for a generalization; and though we must agree with Mommsen that the juristic definition does not cover the cases cited above, it is necessary to reject his amendment as unsatisfactory.[719]

In fact Mommsen soon discovers cases which, from his own admission, neither his definition nor that of Laelius will explain, for instance, Livy i. 36. 6, example (3). On this citation Mommsen[720] remarks that concilia in this connection could not mean contiones, with which in his opinion the auspices had nothing to do; it could not refer to the plebeian assemblies, which he also[123] assumes to have been free from the auspices.[721] He concludes, therefore, that it denotes the “patricio-plebeian” tribal assemblies.[722] But why Livy should here be thinking merely of the tribal assemblies, especially in connection with a time before they had come into existence, no one could possibly explain. It is far more reasonable to assume that he intended to include all kinds of assemblies, curiate, centuriate, and tribal, which required the auspices. The next citation which Mommsen finds difficult is Livy iii. 71. 3, example (5)—an assembly of the tribes meeting under the consuls to decide the dispute between Ardea and Aricia over a piece of territory. The assembly voted (ch. 72. 6) that the land in question belonged to the Roman people. Mommsen’s[723] explanation of concilium in this connection is that the resolution adopted by this assembly affected foreign states only, and was not binding on Rome; hence he assumes that comitia are an assembly whose resolutions are binding on the Roman state. Here then we have a third definition of concilium based like the second on a single case. But Mommsen thinks he finds some evidence for his last definition in the fact that assemblies of foreign states are usually termed concilia; and he assumes the reason to be that their resolutions were not binding on Rome. It would be strange, however, if in calling foreign institutions by Latin names (rex, senatus, populus, plebs, praetor, dictator, etc.) Roman writers attempted to show a connection between these institutions and Rome, seeing that in most cases no such connection could exist. The proposed explanation of this use of concilium becomes actually absurd when it is extended to foreign comitia; Mommsen certainly would not say that the resolutions of the Syracusan comitia, mentioned by Livy, were binding on Rome.

His last and most difficult case is Livy vi. 20. 11—the concilium populi which condemned Marcus Manlius, example (6), p. 121. Evidently this was the centuriate assembly, which alone[124] had the right to try capital cases, and which alone had to meet outside the pomerium. Various feeble explanations have been proposed; but Mommsen, with others, prefers to consider the word wrongly used. It is true that if we accept the juristic definition, we must conclude that Livy is guilty of error not only in this case but wherever he applies the term concilium to an assembly of all the people, Roman or foreign; but as we shall proceed by induction, we must, at least provisionally, consider all the cases correct, and frame our definitions accordingly.

We have now reviewed a number of passages in Livy in which concilium includes all the Romans. There remains a large group of passages which refer to foreign assemblies. In considering these cases we are to bear in mind that the Romans apply to foreign institutions in general the Latin terms with which they are familiar, and in the same sense in which these terms are used of Roman institutions; in this way only could they make themselves understood.

Though most of these concilia are known to have been assemblies of the whole people, nobles and commons, very rarely, as in Livy x. 16. 3, the word signifies a council of a few men—in this case, of the leading men of Etruria (cf. xxxvi. 6.[125] 6); and twice, at Capua, we hear of a plebis concilium; Livy xxiii. 4. 4; xxvi. 16. 9. From the frequency of the first-mentioned use we must conclude that Livy does not hesitate to designate as concilia assemblies of the whole people.

Comitia, on the other hand, more rarely applies to foreign assemblies. We hear of comitia of the Veientans (Livy v. 1. 1), of the Syracusans (Livy xxiv. 23. 1; 26. 16; 27. 1), of the Argives (Livy xxxii. 25. 2), of the Boeotians (Livy xxxiii. 27. 8), and of the Thessalians (Livy xxxiv. 51. 5).

The conclusions thus far reached are as follows:

I. As to Comitia:

II. As to Concilium:

Mommsen and others admit, however, that Livy’s usage does not conform strictly to the definition of Laelius Felix; they assume accordingly that the exact meaning of comitia was lost in imperial times, that for the correct usage we should look to the republican writers.

As Caesar has little occasion for employing the terms in relation to the Roman assemblies, his usage on purely Roman grounds cannot be made out. Foreign assemblies—that is, of Gauls—he generally designates as concilia: B. G. i. 30, 31; iii. 18; v. 2, 6, 24, 56 f.; vi. 3, 20; vii. 63, 89; viii. 20 (Hirtius). In all these cases the concilium is a tribal or national assembly including both nobles and commons; more rarely the word signifies a council of chiefs; B. G. i. 33; vii. 75; and perhaps vii. 1. Once he applies comitia to Gallic assemblies; B. G. vii. 67. So far, therefore, as his usage can be determined, it does not differ from Livy’s. From Macrobius, Sat. i. 16. 29 (“Contra Julius Caesar XVI auspiciorum negat, nundinis contionem advocari posse: id est cum populo agere: ideoque nundinis Romanorum haberi comitia non posse”), it appears that in[126] Lucius Julius Caesar’s[724] augural language, which must certainly have been conservative, contio was a general word including comitia. This passage, with the similar one in Cicero, Att. iv. 3. 4, suggests that the distinctions between contio, comitia, and concilium, far from breaking down in late republican times, were only then taking form.

The material furnished by Sallust is more conclusive. In Hist. ii. 22, concilium Gallorum doubtless signifies a national assembly; and although generally comitia refers to the centuriate gathering (Cat. 24, 26; Iug. 36, 44), in Iug. 37 (“P. Lucullus and L. Annius, tribunes of the plebs, against the efforts of their colleagues strove to prolong their office, and this dissension put off the comitia through all the rest of the year”)[725] it clearly designates the assembly of the plebs. His usage accordingly, which allows concilium sometimes to apply to an assembly of the whole people and comitia to an assembly of a part of the people, does not differ from that of Livy.

Cicero, however, is the author on whom scholars rely in support of the definition of Laelius. Following Berns,[726] they say Cicero has violated the rule but once, Att. i. 1. 1, in which occurs the phrase comitiis tribuniciis. Berns’ examination of Cicero must have been exceedingly hasty, as he has left a number of instances unnoticed. The following passage is especially to the point, Q. Fr. ii. 14 (15 b). 4:

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The tribunician comitia are the only comitia concerned in Cato’s transaction. Again in Att. ii. 23. 3 (“It is of great interest to me that you should be present at Rome, if not at the comitia for his election, at least after he has been declared elected”)[728] Cicero is thinking of the election of Clodius to the tribuneship, and hence the comitia he refers to are the assembly of plebs. In Fam. viii. 4. 3, “aedilium plebis comitiis” must refer to the plebeian assembly, in which the plebeian aediles were elected.[729] Another important passage is Sest. 51. 109:

The law which Cicero dwells on with such bitterness at the beginning of this passage and recurs to at the end is the tribunician law which pronounced on him the sentence of exile; in this connection, therefore, comitia distinctly includes the plebeian assembly in its legislative capacity.

Even more telling is Leg. iii. 19. 44-45:

Cicero is here contrasting the comitia centuriata, which recalled him, with the tribal assembly of the plebs, which pronounced the sentence of exile. Now as he was condemned by the plebeian assembly, it is clear that in this passage Cicero calls the plebeian assembly comitia. How Mommsen[732] can make this citation refer to his “patricio-plebeian” comitia tributa no one can possibly explain. In Att. iii. 12. 1, comitia expressly includes the tribunician elections. The same elections are twice called comitia in Att. iii. 14; and in iii. 13. 1, Cicero, again mentioning these comitia, says: “In tribunis plebis designatis reliqua spes est.” From all these passages it becomes evident that Cicero regards the plebeian assembly as comitia. In many passages comitia seems to include all the elections of the year, of plebeian as well as of patrician magistrates; for the elections were usually held in the same season, and could not well be separated in thought.[733] In fact, according to Cicero’s usage, comitia includes all kinds of national assemblies which do not come under the term contiones; cf. Sest. 50. 106:

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The very phrase comitia populi (Rep. ii. 32. 56; Div. ii. 18. 42) implies the existence of other comitia, for instance comitia plebis. It is not strange, therefore, that Cicero should use the following expression; Rep. i. 33. 50: “The nobles who have arrogated to themselves this name, not with the consent of the people, but by their own comitia.”[735] Here he makes it evident that there may be comitia of the nobles in contrast with the “consent of the people.” Should the senate usurp the elective function, Cicero would not hesitate to call that small body comitia, as appears from his ironical expressions in Phil. xi. 8. 19 (“Quod si comitia placet in senatu haberi” and “Quae igitur haec comitia”), in which he anticipates imperial usage; cf. Vell. ii. 124; Tac. Ann. i. 15.

Furthermore he speaks of comitia, consisting of but seventeen tribes, for the election of sacerdotes; Cael. 8. 19; Leg. Agr. ii. 7. 18; Ad Brut. i. 5. 3 f.; 14. 1; Fam. viii. 12. 4; 14. 1.

From his point of view, a tribal assembly of the whole people was one which consisted of all thirty-five tribes, irrespective of the number present in the several tribes, irrespective, too, of the rank of those who attended. An assembly tributim of a part of the people, on the other hand, was one in which some of the tribes were unrepresented. All this is clearly expressed in Leg. Agr. ii. 7. 16 f.:

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Even if the tribes were represented by no more than five men each, and these men not voting in their own tribes, the assembly was nevertheless comitia tributa populi.[737] This distinction—recognized by Cicero and his contemporaries—between an assembly of the whole people as represented by all the voting divisions and an assembly of a part of the people as represented by some of the voting divisions, is incompatible with the distinction formulated by Laelius. Though an antiquarian might make much of the presence or absence of a few patricians, a man who lived in the present, as did Cicero, probably never troubled himself about such unpractical matters.[738]

From the evidence as to Cicero’s usage given above, we must draw the following conclusions:

Concilium is comparatively rare in Cicero’s works. In a few cases he seems to make concilia include all kinds of organized national gatherings; cf. Rep. vi. 13 (3). 13: “Nihil est enim illi principi deo ... acceptius quam concilia coetusque hominum iure sociati, quae civitates appellantur (Nothing is more agreeable to the Supreme Being than assemblies and gatherings of men which are joined in societies by law and which are called states”); Fin. iii. 19. 63: “Natura sumus apti ad coetus, concilia, civitates.” In the first citation concilium must, and in the second it may, include all the citizens. Cicero could hardly mean that we are by nature adapted to assemblies of a part of[131] the people, or that nothing could be more satisfactory to the Supreme Being than the concilium plebis which interdicted him from fire and water. In Fin. ii. 24. 77 (“To me those sentiments seem genuine which are honorable, praiseworthy, and creditable, which may be expressed in the senate, before the people, and in every gathering and concilium”) he could not be thinking simply of the plebeian assembly, for he placed far greater value on the opinions expressed in and by the comitia centuriata.[739]

From all that has been said it is evident that Cicero’s usage as well as Sallust’s does not differ from that of Livy. In fact no variation can be found in all the extant literature of the republic.[740] But it may be asked whether there was not a juristic tradition separate from the literary and preserving from early time the true distinction between the two words under discussion. A negative answer is compelled by the fact that history had its origin with jurisprudence in the pontifical college, that from the beginning historian and jurist were often united in the same person.[741] Hence the juristic usage was the same as the literary. It is thoroughly established, therefore, that in the late republic, as well as in the early empire, the distinction between comitia and concilium was not a distinction between the whole and a part; in fact, it becomes doubtful whether the definition of Laelius was known to the writers of this period.

The results thus far reached are of great importance; the definition of comitia and concilium formulated by Laelius has been set aside, and the ground prepared for the establishment of new definitions by induction. From the material afforded by the authors under discussion, the following conclusions relative to the general uses of the two words may be drawn:

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I. (a) The phrases comitia curiata, comitia centuriata, comitia tributa constantly occur; whereas (b) the phrases concilium curiatum (or -tim), concilium centuriatum (or -tim), concilium tributum (or -tim) cannot be found.

(a) The former is too well known to need illustration; (b) the latter may be sufficiently established by an examination of the references for concilium given in this chapter.

II. (a) Concilium may apply to a non-political as well as to a political gathering; (b) comitia is wholly restricted to the political sphere.

(a) Concilium is non-political in Cicero, Div. i. 24. 49 (deorum concilium); Tusc. iv. 32. 69; N. D. i. 8. 18; Off. iii. 5. 25; 9. 38: Senec. 23. 84; Fin. ii. 4. 12 (virtutum concilium); Rep. i. 17. 28 (doctissimorum hominum in concilio); Sest. 14. 32 (applied to the meeting of a collegium); Livy i. 21. 3 (Camenarum concilia); ii. 38. 4; xxvii. 35. 4.[742]

III. Within the political sphere, again, (a) concilium is the more general term,—it suggests neither organization nor lack of organization; whereas (b) comitia is restricted to the organized assembly.

(a) Concilium is the more general term in Cicero, Fin. iii. 19. 63; ii. 24. 77; Rep. vi. 13 (3). 13.[743] In all these citations concilia, denoting assemblies of the whole people, must certainly include organized meetings, without excluding the unorganized. In Leg. iii. 19. 42 (“Invito eo qui cum populo ageret, seditionem non posse fieri, quippe cui liceat concilium, simul atque intercessum turbarique coeptum sit, dimittere”) concilium is probably the organized assembly. On the other hand, the concilium of all the people mentioned by Livy, i. 8. 1, may have been unorganized.

IV. Within the province of organized national gatherings, on the other hand, (a) comitia is the wider term, applying as it does to all assemblies of the kind, whatever their function; whereas (b) concilium as an organized national assembly is wholly restricted to legislative and judicial functions.[744]

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(a) Comitia is used in its most general sense in Cicero, Div. i. 45. 103; ii. 18. 42 f.; 35. 74; Tusc. iv. 1. 1.[745]

V. (a) Applied to foreign institutions, comitia always designates electoral assemblies; (b) as at Rome, concilia are always legislative or judicial assemblies.[746]

(a) Comitia is used of foreign states in:

(b) Foreign concilia are mentioned by:

VI. In the Roman state, in a great majority of cases comitia are electoral assemblies; in fact, the word may generally be understood to signify that kind of assembly, or simply elections, unless the context indicates a different meaning.

Comitia are electoral in:

Comitia are legislative or judicial in:

As these lists are nearly exhaustive, they represent substantially the relative frequency of the two uses of comitia.

VII. (a) Rarely is either the centuriate assembly or the so-called patricio-plebeian tribal assembly termed concilium; (b) the plebeian tribal assembly is rarely termed comitia except when electoral.

The principal instances of the rare use of concilium under (a) are Livy i. 26. 5; 36. 6; iii. 71. 3; vi. 20. 11.[748] (b) In its legislative or judicial capacity the plebeian tribal assembly is called comitia in Cicero, Leg. iii. 19. 45; Sest. 51. 109; Livy iii. 13. 9; 17. 4; vi. 36. 9; xxv. 4. 6; xxxiv. 2. 11; xlv. 35.

This classification covers without exception all the cases in the authors under discussion. An attempt may now be made to trace the development of these uses.

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The first thing to be considered is that whereas concilium is singular, comitia is plural. Undoubtedly it is a plural of the parts of which the whole is composed; in other words, the curiae, or centuries, or tribes were originally thought of as little assemblies, whose sum total formed the comitia. Comitia therefore always has reference to the parts—the voting units—of which the assembly is composed, whereas concilium as a singular views the assembly without reference to its parts. For this reason, whenever it is advisable to add a modifier to indicate the kind of organization of the assembly, comitia is always used. We find, accordingly, comitia curiata, comitia centuriata, and comitia tributa in common use, but never concilium curiatum (or -tim), concilium centuriatum (or -tim), or concilium tributum (or -tim). These last expressions, which are modern inventions, do not accord with the Roman way of viewing the assemblies. This consideration satisfactorily explains the first general use.[749]

As a non-political gathering is not made up of groups—similar to the voting divisions of the national assemblies—it cannot be called comitia. Concilium is the only term appropriate to it; hence we have the second general use of the two words.[750]

The same consideration makes concilium the more general term within the political sphere; the assembly it designates may be organized or unorganized, whereas comitia applies only to assemblies organized in voting divisions. This is the third general use.[751]

For explaining the four remaining uses it is necessary to inquire into the fundamental meaning of concilium. Although the etymology is uncertain, probability favors the ancient conjecture which derives it from “con-calare.”[752] People could only[136] be called together for a purpose, which would most naturally be conversation, discussion, deliberation. Whatever may have been its origin, concilium certainly developed this meaning.[753] In the manuscripts and editions it is frequently interchanged with consilium,[754] and in the sources these two words are often placed in punning juxtaposition.[755] Possibly their close resemblance, founded on no etymological connection of the roots, helped create in concilium the idea of deliberation. At all events in the prose authors of the period under discussion this is the primary meaning. The deliberative character of most non-political concilia is very evident.[756] With this meaning the word could not designate an electoral assembly, which did not allow discussion;[757] it was restricted to legislative and judicial assemblies, in which the voting was preceded by deliberation. This is the fourth use.[758]

Rarely did a Roman writer have occasion to mention an election in a foreign state. Whenever he did so, however, he always used comitia. Most of the business of foreign assemblies[137] referred to by Roman writers was concerned with international affairs—was legislative—and hence foreign assemblies are usually termed concilia.[759] This consideration accounts for the fifth general use.[760]

The sixth[761] may be easily explained. The tendency was to restrict comitia to electoral assemblies, just as concilium was restricted to legislative and judicial assemblies, though this tendency never became a rule.

The seventh[762] may be accounted for by the fact that after the passing of the Hortensian Law, the centuriate comitia came to be almost wholly electoral, while the plebeian tribal gathering became the chief statute-making body in the state. Furthermore the assembly over which the tribunes presided was far more deliberative than any other. Hence the centuriate assembly became the comitia, and the plebeian tribal assembly the concilium.[763]

The cause of the error into which Laelius[764] fell is now apparent. Finding the plebeian tribal assembly frequently termed concilium and the centuriate assembly of the whole people generally termed comitia, he hastily concluded that comitia should be restricted to assemblies of the whole people and concilia to assemblies of a part of the people. This discussion has proved, against Laelius, that for the republic and for the age of Augustus the distinction between the two words was not a distinction between the whole and a part, and that all the uses of comitia and concilium in this period may be explained by two simple facts: (1) that whereas concilium is singular, comitia is plural; (2) that concilium suggests deliberation, discussion.

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A result of this inquiry is to banish the expressions “concilium tributum plebis” and “patricio-plebeian comitia tributa”—the former as impossible, the latter as unnecessary—from the nomenclature of Roman public law. There were but three forms of organized assembly—curiate, centuriate, and tribal—all equally entitled to the name “comitia.” The difference between the “comitia tributa populi” and “comitia tributa plebis” was chiefly in the presidency, as will be shown in a later chapter.[765] Contio, on the other hand, denotes the listening or witnessing assembly, unorganized or organized but never voting, whereas concilium, overlapping contio and comitia, may include voting in addition to deliberation.

Contio, derived from conventio,[766] originally signified “a coming together,” “a meeting” of any kind. In an early stage of its history it must have been a general term for public assembly, especially comitia. This meaning appears most clearly in a passage of Macrobius,[767] in which, quoting the treatise of Lucius Julius Caesar on the Auspices, he declares (1) that on market days a contio cannot be called, (2) in other words, that on such days business cannot be transacted with the people, (3) that for this reason the Romans cannot hold comitia on market days. Cicero,[768] too, states with reference to a certain market day that “for two days no contio can be held”—for the day of the market and the one following. From the context it is evident that he, like Macrobius, is thinking of comitia, which, as is well known, could not legally meet on market days.[769] Doubtless in the conservative nomenclature of the pontiffs and augurs, quoted by Macrobius and Cicero, contio still included comitia; it must in fact have applied more particularly to the formal, voting assembly; for informal meetings were not forbidden on such days.[770] But in the time of Cicero this use of the word was[140] obsolete excepting in the archaic formulae of the sacerdotal colleges. In the political language of his age contio had come to be restricted to the non-voting assembly—either organized[771] or more commonly unorganized—summoned by a magistrate or a sacerdos,[772] and in this sense it will be used in the present volume. Still farther removed from its origin is the meaning “oration” delivered to the people in such a gathering.[773]

Because of the passive character of this form of assembly the magistrate admitted all who wished to attend, without inquiring whether they were citizens and in full possession of their political rights.[774] It might be composed either of soldiers[775] or of civilians, presided over in the field by the commander, in the city by any magistrate who had a right to hold comitia in their own or in another’s name, including the king,[776] interrex, dictator, master of horse, and tribunes of the plebs;[777] also the quaestors[778][141] and aediles,[779] the pontifex maximus and the rex sacrorum.[780] Necessarily the right belonged as well to all extraordinary magistrates, as the decemviri legibus scribundis, who possessed consular power within the city.[781] But promagistrates and any others who held an exclusively military imperium could summon neither the comitia nor the civil contio.[782] The censors held contiones for the taking of the census,[783] for imposing fines,[784] and for the lustration. In the last-named function the assembly was also called comitia centuriata or exercitus urbanus.[785] The quaestors, the curule aediles, and the plebeian aediles exercised their jurisdiction in contiones and comitia, which for this purpose they called not in their own name but by permission of a higher magistrate.[786]

As the contio did not, like the comitia, theoretically include all the people, any number of magistrates could simultaneously hold meetings of the kind.[787] A minor officer had no right to take charge of, or to summon the people from, a contio called by another. A higher officer exercised this right against a[142] lower; the consul, for instance, could take the meeting from the hands of any ordinary patrician magistrate,[788] though not of a tribune of the plebs. No one dared disturb a meeting of any kind under the presidency of the latter,[789] and at least in the late republic a tribune sometimes forbade a patrician magistrate to address an assembly;[790] but otherwise consuls and plebeian tribunes might hold simultaneous contiones.[791]

Sometimes the contio was summoned merely to witness a public act. The consuls called the people together outside the walls by the sound of the war-trumpet to see an execution for treason. On this occasion the citizens were arrayed in centuries on the Campus Martius, in an assembly called at once comitia centuriata and contio.[792] We hear of a similar execution of an astrologer or magician outside the Esquiline gate, according to a primitive custom;[793] and it was most probably in a contio that the supreme pontiff scourged to death a man who had wronged a Vestal.[794] The people gathered in the same kind of meeting to witness an oath,[795] a judicial process,[796] or the levy of a fine.[797] But it was preëminently the listening assembly, hence the definition offered by Gellius,[798] “To hold a contio is to address the people, without[143] calling on them for a vote.” It applied not only to the isolated meeting summoned to hear edicts, reports, communications of every kind, including arguments and appeals for or against a given policy,[799] but also to the preparatory stage of the voting assembly whether addresses were delivered or not. Occasionally in early times there was speaking on the merits of candidates at the opening of an electoral assembly, and the voting was sometimes interrupted for the purpose.[800] Before the age of Cicero this rare proceeding had disappeared. In his day the canvass for candidates had been made before the holding of the preliminary contio, which accordingly was brief and formal. Because much time was required for the voting of the centuries,[801] speaking on the day of their assembly had to be minimized. For this reason the contio for advising the adoption of a resolution by the comitia centuriata was held on an earlier day. Such was the meeting summoned in the Campus Martius by the consul P. Lentulus for the purpose of urging the people to vote in the ensuing centuriate assembly for the recall of Cicero.[802] In judicial proceedings before any of the assemblies the testimonies of witnesses and the pleadings occupied the greater part of the time, and for this reason judicial assemblies were frequently termed simply contiones. They will be described in a later chapter.[803]

Informal contiones could be called at any time while the sun was up,[804] with or without[805] an interval between the summons and the meeting, and in any place[806] at the pleasure of the person[144] who convoked them. In public assemblies of every kind the people remained standing throughout the session.[807] The magistrate who was about to summon an auspicated contio repaired to the templum which he intended to occupy during the meeting.[808] After taking the auspices there, and finding the omens favorable, he ordered the crier to call the citizens.[809] His directions to this assistant were prefaced by a solemn wish that the gathering of the citizens might be well, fortunate, auspicious, and advantageous to the Roman people, the commonwealth, himself, his colleague or colleagues, and his magistracy.[810] After first issuing the summons from the templum the crier repeated it while making the circuit of the walls.[811] Meantime the presiding officer invited the senators, his colleague or colleagues, and the various other magistrates to assist him with their presence and advice.[812] The invitation was extended even to opposing tribunes;[813] and on the other hand a presiding tribune was especially anxious to secure the presence and favorable influence of patrician magistrates and of the leading men of the state.[814] When the president saw his friends about him and the people gathered, he called the contio to order,[815] and proceeded to open the meeting with a[145] prayer.[816] In the case of a resolution to be brought before the assembly the magistrate was accustomed first to submit it to the senate, which considered the bill and perhaps suggested alterations;[817] but sometimes measures were brought into the comitia without this senatorial deliberation.[818] In the contio the presiding officer had power to exclude or to limit discussion of his proposals. Ordinarily he found it advantageous to instruct the people regarding the subject on which they were to vote; and it was for this purpose that one or more contiones were held previous to the comitia. The right to address the people belonged primarily to the presiding magistrate. Although the king enjoyed the superior right, the notion that in the regal period no private persons spoke in the assembly seems to be unwarranted.[819] The custom of the republic prescribed that the president should grant the privilege not only to his colleagues[820] but also to all the[146] higher magistrates.[821] In some cases the invitation was extended to senators[822] and to other distinguished private persons.[823] The tribunes sometimes gave the privilege to freedmen,[824] to foreign kings,[825] and to ambassadors.[826] The early republic did not allow women to be present in political meetings;[827] but in time this severity began to relax. Livy[828] represents the elder Cato as saying that his generation permitted women to take part in affairs of state and to interfere in contiones and comitia—evidently an exaggeration, as the context proves that the women referred to did not actually come into the assembly, and the speaker intimates that custom disapproved of their doing so.[147] From the time of the Gracchi they occasionally spoke in public. Dio Cassius[829] states that Tiberius Gracchus brought his mother and children into a contio to join their entreaties with his; and according to Valerius Maximus[830] a tribune of the plebs required Sempronia, sister of the Gracchi, to come forward in a similar meeting and give her opinion on the subject under consideration. In the year 43 some ladies attended a contio to protest against being taxed by the triumvirs. Hortensia spoke for the complainants.[831] It was an accepted custom that no tribune should intercede against a measure till an opportunity had been afforded private persons to speak for or against it.[832] When after the victory of Pydna a tribune of the plebs had introduced a motion to grant a triumph to Aemilius Paulus, and the debate had been thrown open to the assembly, all for a time remained silent, for no doubt was entertained as to its passing; but finally Servius Galba, who as a military tribune had served under Paulus and was his enemy, came forward and obstructed the measure by a long harangue.[833] Although the president could, and perhaps often did, throw the debate open to the citizens in this way, he was not compelled to do so. The tribunician assembly was more deliberative than any other—a circumstance which accounts for its designation as a concilium.[834] Those invited to speak, if citizens, had to be of good standing and not under disqualification through a special law or usage. The rex sacrorum was prohibited not only from holding any other office but also from addressing an assembly.[835] The spendthrift[836] and the man condemned for extortion[837] were likewise forbidden. When the right was granted as a special distinction, the receiver was probably placed thereby on a footing of equal dignity with the magistrates.[838]

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The president could also compel a citizen to speak. The holder of the imperium had a right to summon any man into a public meeting, and order him to answer any question put to him.[839] Tribunes of the plebs, however, who lacked the power of summoning, exercised this coercive function against citizens and even consuls, not through a direct right but by a usurpation, probably based on their power to arrest and imprison.[840]

The president extended permission by asking a man to give his opinion on the subject under discussion, and it was not in good order even for a magistrate to address the assembly unless invited, though he had ground for resentment if he was passed over in favor of private persons.[841] When Caesar as consul, 59, brought his agrarian bill before the comitia without the consent of the senate and in spite of its silent disapproval,[842] he first asked his colleague whether he had any objection to the proposal. Bibulus offered none but declared that he would allow no innovation during his consulship. Thereupon Caesar begged him for support, and requested the people to join in the entreaty, saying, “You will have the law on the sole condition that he is willing.” Then Bibulus, answering in a loud voice, “You will not have this law the present year, even if all of you want it,” left the assembly. Slighting the other magistrates, Caesar invited Pompey and Crassus to address the meeting, though they were but senators and therefore, as contrasted with[149] magistrates, merely private citizens. After Pompey had spoken at length, commending the details of the law, Caesar asked if he would support it against opponents, at the same time requesting the people to beg of him this favor. They did so, doubtless by acclamation; and Pompey, greatly flattered because the consul and the people besought help of him, a private citizen, promised to stand by the law.[843]

A magistrate spoke from the platform, a private person from a lower position, presumably from one of the steps; for the chairman to bring a private speaker upon the stage was a cause of offence to his colleagues.[844] When the president granted an opportunity to speak, he had a right to fix the amount of time to be used. In the debate on the law for assigning provinces to Caesar and Pompey, 55, the presiding tribune granted one hour to Favorinus and two hours to Cato, both opponents of the measure.[845] The speaker could use the time in whatever way he pleased; a few persons by concert might waste the whole day in trivialities, as is sometimes done in the senate of the United States of America, so as to prevent voting on the subject for that date. In the case above mentioned Favorinus, doubtless for lack of real argument, exhausted his hour in lamentation over the shortness of the time allowed him,[846] and Cato spent his two hours on irrelevant or minor matters, merely that he might be silenced by the president while still appearing to have something to say. He persisted in speaking accordingly till an officer dragged him from the rostra and ejected him from the Forum. Even then he returned several times to interrupt the proceedings with his shouting.[847] If the speaker approved the measure, he might close with the words, “This law of yours and your purpose and sentiments I praise and most heartily approve”;[848] or more formally, “In my opinion[150] this bill as presented ought to be passed, and may it prove well, auspicious, and fortunate both to yourselves and to the republic”;[849] or if opposed to the proposition, he might conclude with this form of disapproval, “It is my judgment that this law should by no means be repealed.”[850]

Sometimes the magistrates were invited in the order of their rank and afterward private citizens; in other cases, especially in tribunician contiones, private persons were called first that they might speak with perfect freedom, uninfluenced by the opinion of their magistrates.[851] As the president had absolute control, he could alter the usage to suit his own interest, and could certainly reserve to himself the advantage of speaking last.[852] It often happened that there was not enough time in one day for the discussion of a question. In that case the magistrate adjourned the meeting to a specified date.[853]

After the deliberation, or after the formality of opening the contio which was merely preliminary to the comitia, the president ordered the assembly to form into voting groups—curiae, centuries, or tribes. He could say, for instance, “I order you to take your proper places in the comitia centuriata,”[854] or more generally, “If you think fit, quirites, move apart (into your voting groups).”[855] At the same time he ordered the departure of all who lacked the qualification for voting.[856] The lictors of the magistrates with imperium and the beadle (viator) of the tribune attended to clearing away the unqualified.[857]

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In seeking for the origin and primitive character of the Roman assembly we are enabled by comparative study to reach a stage of growth far anterior to the beginnings of Roman tradition. In its earliest known form the European popular assembly had the following characteristics, provisionally enumerated here, but established in the next chapter: (1) the people who attended were the mass of freemen of a tribe, especially the warriors; (2) they stood or sat promiscuously, without reference to sub-tribal groups; (3) measures were proposed by none but chiefs or nobles, generally after previous discussion in council, the common members wholly lacking initiative; (4) the speakers were as a rule, though not exclusively, chieftains; (5) the vote was by acclamation, the clash of weapons, or some similar demonstration; as a correlate of (3) and (4) may be added, (6) sovereignty, so far as the idea existed, resided not in the assembly, which of itself could take no action, but in the king and chieftains, who made use of the assembly (a) for the publication of news or of projects, (b) for securing by their eloquence the coöperation of the tribe in a plan already formed in council. However far developed beyond this crude institution the comitia curiata or the comitia centuriata of the republican period may have been, traces of all the characteristics above mentioned may be found in the historical Roman assembly[858]—a fact which justifies the comparative method of approach to the subject.

We need not hesitate to begin with the unorganized contio as the earliest form of Roman assembly, to which we may attach the other features of the European gathering named above. The first problem is to determine under what influence and for[153] what purpose the gathering of the people came to be organized in curiae. The notion that the object was primarily for voting is groundless. The Athenians had the germ of a tribal assembly in the division of the people by phylae on the occasion of ostracophory[859] and of the passing of other privilegia (νόμοι ἐπ’ ἀνδρί). The organization was not in this case for the purpose of using the tribes as voting units, but merely for bringing order and solemnity to the proceeding. Apparently the assembly of Alamanni was arrayed in military form for ratifying emancipations,[860] though in the process the military companies did not vote as units. In like manner, but for a wider range of functions, we find at Rome the meeting of the people in curiae, less frequently in centuries, merely for listening, for witnessing, or for receiving purification. The circumstances that the business of such assemblies was largely religious, and of such a character that it must have originated in the earliest Roman times, and that in the greater number of cases these gatherings were under sacerdotal presidency suggest that the sacerdotes, particularly the pontiffs, introduced the curiate organization from the army to make their religious meetings more orderly and dignified.[861]

All assemblies which met under pontifical presidency for religious purposes were called calata,[862] evidently from “calare,” a verb which must originally have been in common use in the sense of “to call,” but which in historical time was restricted to[154] the technical language of the sacerdotes.[863] In the latter connection it designates the peculiar method of summoning used by the pontiffs.[864] Probably, at least in earlier time, their calatores acted as curiate lictors in convoking the calata comitia curiata,[865] over which they presided. In all meetings of the kind in the regal period the people were grouped in curiae; under the republic the centuriata comitia calata were also used for certain purposes.[866] The usual meeting-place of the calata comitia curiata was in front of the curia Calabra on the Capitoline Hill.[867] With reference to their object, they may be classed as non-voting and voting; the former were purely religious, the latter were for the settlement of questions which were in part civil.[868] First to be noted of the non-voting assemblies were those in which the people gathered in comitia under the presidency of the king,[869] in the republic under the rex sacrorum, to hear the proclamation of the fasti. On the calends of each month a[155] pontifex minor, as clerk of the college,[870] announced to them on what day, whether the fifth or seventh, the nones would come.[871] On the nones the king again summoned the people to hear the calendar of the month,[872] read probably by the same pontifex minor. This custom fell into disuse with the publication of the calendar in the Forum, beginning in 304.[873]

Equally passive were those comitia calata which under the presidency of the supreme pontiff witnessed the inauguration of the three flamines maiores,[874] probably of the king in the[156] regal period, and certainly of the rex sacrorum under the republic.[875] As warlike Mars had his shrines outside the pomerium,[876] his chief temple being in the Campus Martius,[877] it is a probable conclusion that his flamen was inaugurated there—in the regal period in some form of military assembly, under the republic in the comitia centuriata.[878] The inaugural ceremonies were performed by an augur;[879] in the case of the sacerdotes it was the supreme pontiff who requested this service of him,[880] whereas the king could doubtless command an augur without the coöperation of the pontiff. A closely related function was the appointment of Vestals by lot, under the conduct of the supreme pontiff in a public assembly, probably the calata comitia.[881] The destatio sacrorum and the abjuration of social rank, other acts which these comitia merely witnessed, will be considered in connection with the transitio ad plebem and the adrogatio.[882] The ceremonies attended to by the rex sacrorum on March 24 and again on May 24 may have been in comitia calata, though this is doubtful.[883]

Assemblies of the people were organized in curiae by the pontiffs for the religious purposes mentioned above, while political measures, so far as submitted to the people, continued for a time, we may suppose, to be decided by din in contiones. But when a desire for a more precise vote began to be felt, the curiate organization naturally offered itself as most convenient for the purpose. The contention that in primitive Rome, as[157] among other early peoples,[884] the assembly expressed its feeling or opinion by noisy demonstration finds strong support in the most probable derivation of suffragium, “vote,” which connects it with frangere, fragor, “a breaking,” “crash,” “din,” “applause,”[885] the prefix sub- expressing the dependence of the action upon the proposal of the speaker, as in the military succlamare, succlamatio.[886] We may well believe that even after the organization of the assembly as comitia—that is, in curiate, centuriate, or tribal divisions[887]—the voting within the component groups continued for a time to be by din, as is suggested by the phrase sex suffragia, applied to the six oldest groups of knights in the comitia centuriata.[888] Voting by heads in large gatherings is in fact a slow, cumbersome process, the product of a well-developed political life. In all probability it originated in the centuriate assembly—in which the military array facilitated the taking of individual opinion[889]—and afterward extended to the other comitia. This line of reasoning suggests that when in the regal period a desire began to be felt for a more precise vote, and the curiate organization readily offered itself for the purpose, the expedient was adopted of taking the vote of each curia in order by din and then of deciding the question at issue by a majority of the thirty curial votes.[890] There can be little doubt that this step also was first taken by the pontiffs.

The testamentary calata comitia met twice a year, probably on fixed days.[891] It has been a disputed question whether the oldest form of testament here referred to required a vote of the people. Rubino[892] strongly upheld the negative on the ground (1) of analogy with the procedure in inaugurations, (2) of analogy with other forms of testament, none of which required a[158] vote, (3) of the word testamentum itself, which refers to witnessing, (4) of the conviction that the patricians would not leave to the popular assembly the making of private law, (5) on the authority of Theophilus,[893] who mentions the people’s witnessing of the testament, (6) on the statement of Gellius[894] that wills of the kind were made “in populi contione.” Against this reasoning may be urged (1) the analogy from the adrogatio, (2) the analogy from the testamentary adoption, to both of which cases the simple testament was similar, and both of which required a vote of the people,[895] (3) the consideration that the act of witnessing in the assembly did not necessarily exclude a vote, (4) the statement of Gaius[896] that calata comitia were convoked “for making”—not for witnessing—testaments, (5) the circumstance that the contio was often a preliminary stage of the voting assembly[897] in addition to the fact that pontifical language applies the term to comitia in general.[898] These arguments offset all the points offered by Rubino, unless it be the fourth, which is a purely subjective consideration. Arguments (1), (2), and (4) are especially effective for establishing the fact of a vote in the case under consideration. But the problem can be most satisfactorily solved (6) by comparative investigation. In the constitution of the early Indo-European family the estate belonged jointly to all the male members, and for that reason could not be given away by the pater.[899] The primitive Germans accordingly made no wills, but left their property to their children, or in failure of children to the near kin.[900] In Attica the right to bequeath was instituted by a law of Solon, which allowed it to those only who had no legitimate sons;[901] in Sparta[159] the right was introduced by Epitadeus, perhaps early in the fourth century B.C.[902] Testaments were unknown in Gortyn at the time when the Twelve Tables of this city were published,[903] and similar conditions existed in other states of Greece.[904] The rule holds, too, for ancient India.[905] The Slavic householder could not alienate his land without the consent of the community.[906] As there is no reason to assume a more advanced condition for primitive Rome, we may conclude that, as indicated above, the calata comitia not only witnessed but ratified testaments.[907]

Mommsen has attempted to fix these days as March 24 and May 24,[908] on which the rex sacrificulus performed comitial ceremonies not clearly described by the sources.[909] He admits, however, that the testamentary comitia met under the pontifex maximus rather than under the rex sacrorum[910]—a fact directly opposed to his contention. We should be surprised also to find the testamentary days so close together.[911] But the most effective argument against his view is that this function performed by the rex sacrorum could not have been the holding of comitia, for the time during which it continued was nefas.[912] The ancient[160] authorities state that “the sacrificial king, after performing sacred rites, comes into, or makes a sacrifice in (venit or litat), the comitium,”[913] but they do not mention an assembly; hence we may infer that in the fasti for these days reference is to some other function than the holding of comitia. The form of testament above described fell early into disuse,[914] so that the conditions and ceremonies attending it became a subject of study for antiquarians.

Adoptions ordinarily came before the praetor. The legal object was the perpetuation of the family and its religion. The law granted the privilege accordingly to those only who had no children and who were incapable of having children. It required further that the act should not imperil the continuance of the family from whom the adopted came.[915] Adrogatio was the adoption of a person who was his own master and who accordingly consented to pass under the paternal power of another. The word signifies that the act to which it applies required a vote of the people.[916] It was not undertaken rashly or without careful consideration.[917] The persons concerned were required first to present the case to the college of pontiffs, who took into account “what reason any one has for adopting children, what considerations of family or dignity are involved, what principles of religion are concerned.”[918] The age of the man who wished to arrogate was considered—whether in this respect he was capable of having children of his own, and care was taken that the property of the arrogated person should not be insidiously coveted.[919] The adrogator was asked whether he wished the candidate for adoption to be his real son, and the candidate was asked whether he would allow himself to be placed in this condition;[920] and the testimonies were confirmed by an oath formulated by Q. Mucius Scaevola.[921]

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If the pontiffs gave their consent, the case came before the comitia curiata under the presidency of the chief of the college,[922] who put the question in the following form: “Do you wish and order that L. Valerius be the son of L. Titus by the same legal rights as if born of the father and mother of that family, and that the latter have the power of life and death over the former as a father over a son? This order I request of you, Romans, to grant, just as I have pronounced the words.”[923] The curiae decided by vote.[924] At the same meeting the arrogated son was required to declare that he forsook the religion of the family or gens of his birth—detestatio sacrorum[925]—and by a similar declaration the adrogator received him into the sacra of the new family.[926] This form of adoption could not apply to youths before they had put on the manly gown, or to wards or women; for children and women had no part in an assembly, and guardians were not allowed under any circumstances to place their wards in the power of another.[927]

A modification of adrogatio is testamentary adoption, of which the only well-known case is that of Octavius, the heir of the dictator Caesar. Octavius came before a praetor with witnesses and formally accepted the inheritance;[928] afterward he was declared adopted by a vote of the curiae.[929] As this case is nearly akin to the adrogatio, there can be no doubt that the vote was taken in the calata comitia under pontifical presidency.[930]

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Distinct from the adrogatio, though analogous to it, was the direct passing of individuals and of gentes from the patrician to the plebeian rank—transitio ad plebem. The motive was a desire to qualify for the tribunate of the plebs,[931] or more generally to widen the range of one’s eligibility to office.[932] The history of the republic affords several instances of the transition of individuals;[933] and two plebeian gentes, the Octavia[934] and the Minucia,[935] boasted of having passed over from the patricians. Even if these boasts rest upon genealogical falsifications,[936] the Romans thought such an act legally possible; and they formulated a process applicable to every case whether of individuals or of gentes. It was through some other ceremony than the adrogatio, for the latter could not apply to groups of persons. Clodius was following the more general procedure here referred to when in the year 60 he tried to make himself a plebeian without recourse to adrogatio. First he abdicated his nobility by an oath, probably taken in the comitia calata;[937] then coming before an assembly of the plebs, he held himself ready to receive plebeian rights through a resolution introduced by the tribune Herennius.[938] The process allowed the retention of the name, sacra, and all other privileges not dependent on the patriciate.[939][163] But Metellus, the consul, objected that a curiate law was needed to make the act valid, and the senate evidently agreed with him.[940] Metellus may have had in mind the transition through the adrogatio, which required a curiate law, or more probably he was thinking of a vote of the curiae in addition to the other formalities which Clodius was passing through.[941] The complete process accordingly would have been the abjuration of the patriciate, confirmed by a curiate law, and the reception of plebeian rights through a plebi scitum. Clodius was not so foolish as to suppose that a process of transitio invented by himself would prove acceptable to the senate and magistrates, and must therefore have followed as closely as possible the formula which he believed to be legal. But when Metellus raised the objection, and when the tribunes persisted in interceding against the plebi scitum,[942] he yielded for the present, and in the following year had himself arrogated by a plebeian named Fonteius, from whom he was forthwith emancipated.[943] This procedure, too, allowed him to retain the gentile name of his birth,[944] his imagines and sacra,[945] and consequently his inheritance. The oath taken in the calata comitia accordingly was not the detestatio sacrorum usual in arrogations, but a form of declaration which reserved these privileges, with the understanding that in this case the arrogatio was not for the customary object but to enable him to change his rank.[946]

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Analogous to the transitio ad plebem is the elevation of a plebeian to the patrician rank. The Romans believed that eminent plebeians, including foreigners of distinction newly admitted to citizenship, were sometimes granted the patriciate not only through the regal period but also in the opening years of the republic. For the republican age they represented the bestowal as a double act, a resolution of the people followed by coöptation into the senate.[947] In stating that the first consuls chose the best men from the commons, made them patricians, and with them filled the senate to the number of three hundred, Dionysius[948] apparently has in mind the consuls’ function of recruiting the senate before the Ovinian legislation,[949] together with their initiative in granting the patriciate. The Roman view that the bestowal required a vote of the people is further proved by the procedure of Julius Caesar and of Octavianus in creating new patricians; for in this function they doubtless followed tradition as nearly as possible. In 45 a plebi scitum,[950] proposed by L. Cassius Longinus and supported by a senatus consultum,[951] empowered Caesar to recruit the patrician rank. Octavianus proceeded in a similar manner except that a consular law,[952] approved also by a senatus consultum,[953] was passed for the purpose. As the object was religious, we may suppose that the qualifications of the candidates were previously examined by the pontifical college. On the analogy of the transitio[165] ad plebem it may be assumed further that the candidate abjured his plebeian rank in the calata comitia, which then confirmed his declaration by vote.[954]

But whether the Romans were right in supposing patricians to have been created in the early republic has been doubted. Mommsen[955] takes the ground that when the curiae ceased to be exclusively patrician, elevation to the rank became impossible, and that therefore no cases of the kind occurred after the fall of the kings. But in such a matter it is absurd to speak of impossibilities; everything was possible which the governing power approved, and the argument falls when its basis, the purely patrician state, has been removed.[956] The cessation was in fact due to the growing exclusiveness of the patricians, who as they came to supplant the king in the government, learned to value their privileged position so highly they were unwilling longer to share it with others. Just when the closing of their rank was effected has not been ascertained, but there is no good reason for rejecting the Roman view that for a time after the fall of the kings plebeians continued to be admitted: in reality the indications are strong for a relatively late closing.[957]

We may next inquire how patricians were created in the time of the kings. As the history of the regal period is in general a reconstruction with material drawn from later time, so in this particular case ancient writers sometimes date back to the age of the kings the usage of the republic. Dionysius[958] accordingly states that “the Romans by vote transferred Servius Tullius from the plebeian to the patrician order, just as they had previously transferred Tarquin the Elder and still earlier Numa Pompilius.” But the Romans preferred to reconstruct[166] the process on an entirely different principle. Regarding the kings as the founders of all the fundamental institutions, the patricians looked upon their superior rank as a gift of these monarchs. The patriciate depended upon senatorial membership, which was at the disposal of the kings.[959] This view is well adapted to explain the creation of the senate; but for the period after its establishment Livy[960] adds to the adlectio of the king a coöptatio by the patres (senators). Livy’s account of the usage here given is reasonable; the king indicated his preference as to the choice of advisers, but a powerful council, such as the senate must have been, at least in the later regal period, would have the final decision on the question of admitting a new member. The conclusion is that toward the end of the monarchy, if not from the beginning, plebeians were admitted to the senate, and through it to the patriciate, by the coöperation of the king and the senate, the people having nothing to do with the matter.[961] But after the overthrow of the monarchy the vote of the people was substituted for the will of the king, coöptation by the senate continuing as before.[962]

The patriciate was acquired not only through bestowal by the state, but also through the adoption of a plebeian into a patrician family. Several cases of the kind have been ascertained.[963] The act took place before the praetor[964] and did not concern the comitia. Probably a preliminary examination by the pontiffs was necessary to adoptions as well as to arrogations.[965]

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The primitive European assembly, of which the Roman is a variety, may be reconstructed in broad outline by a comparison of the forms and functions of the institution as found among the earliest Italians, Greeks, Celts, Germans, Slavs, and kindred peoples, among whom it differed in detail while possessing the same general features. The usual tendency of development was toward the abridgment of popular powers to the advantage of the nobles or of the king;[966] but in some instances may be discovered a growth in the opposite direction.

Generally the assembly did not have fixed times of meeting but convened only when called by the king or chiefs. This is known to be true of the Homeric Greeks,[967] of the Slavs,[968] and of the Romans,[969] and may be regarded as the more primitive condition. In addition to extraordinary sessions the German assembly acquired the right to meet regularly twice a month at fixed times[970]—a right which gave the people a valuable political advantage. In like manner the Lacedaemonians met once a month;[971] the Athenians probably once a prytany (tenth of a year) after Cleisthenes, and certainly four times a prytany after Pericles.[972] The Celtic assemblies convened annually or triennially at fixed seasons.[973] Among all these peoples, however, subjects for consideration were presented by none but the king[169] or chief, the assembly itself being wholly without initiative. Such subjects were as a rule previously discussed in a council of chiefs or nobles.[974] The person who summoned the assembly naturally made the first speech, which explained the purpose of the meeting and the character of the subject to be considered. If it was an enterprise in which he desired the support or coöperation of the community, he attempted to rouse for it the enthusiasm of his hearers.[975] The discussion might then be continued by the chiefs or any others distinguished for age, military prowess, or eloquence.[976] Among the Germans, who possessed more than the average degree of liberty, any one spoke who could gain a hearing; in the Homeric assembly a commoner who dared lift up his voice against king or noble was liable to severe chastisement as a disorderly person;[977] and conditions at Rome, as well as in Etruria,[978] seem to have been equally unfavorable to the ordinary freeman.

A considerable variety of business came before the assembly. It might be summoned to hear the announcement of news of interest to the community,[979] the reading of the calendar for the month,[980] the declaration of a policy or opinion by a king or chief,[981] or for witnessing acts affecting the interests of the community.[982][170] More important were judicial cases,[983] questions of war and peace,[984] and elections.[985]

The problem as to the relative power of the king and council on the one hand and of the assembly on the other is difficult. It was a disadvantage to the people, over and above their lack of initiative, to have no means of precisely expressing their will. The Greeks signified their approval by acclamation,[986] the Germans by clashing their weapons,[987] and the Celts by both;[988] either demonstration aimed to express, not the will of the majority,[989] but the intensity of conviction on the part of the assembly as a whole. It lacked as well the means of legally enforcing its will.[990] The Achaeans in assembly approved the petition of[171] Chryses, a suppliant priest; nevertheless King Agamemnon rejected it.[991] After the people had divided the spoils of war, Agamemnon seized the prize they had given another.[992] The Trojans were ready to surrender Helen for the sake of peace; but Priam, to gratify his son, refused, and the war went on.[993] In his relations with individuals the king often acted unjustly and tyrannically. Even in affairs which concerned the entire community he might take large liberty. Without consulting the assembly he could count on the support of the people in a war of defence. Treaties of peace, which were often guest-friendships and intermarriages between royal families,[994] did not come before the people for ratification as a right, but only in cases in which their pledge seemed necessary for the prevention of private warfare. The right of the magistrate to conclude peace with or without discussion in the council or senate was recognized by the states of Italy as late as the Second Samnite war.[995] The king might even declare an offensive war on his own responsibility, if without consulting the people he could feel sure of their support.[996] Enterprises requiring their coöperation he usually submitted to them to win their approval, as he had no means of coercing the entire community. His independence of the assembly increased with the growth of heredity. The idea of sovereignty, strictly speaking, was unknown to primitive times;[172] yet so far as people thought of political power, they assigned it to the king and council.[997] Nevertheless the fact of the assembly’s existence and the need of eloquence for persuading it prove it to have been a real force. The suppression of the German assembly or the prohibition of carrying arms to the meeting was looked upon as intolerable tyranny.[998] For the disturbance of an Irish assembly the penalty was death.[999] Public opinion was a check on royalty,[1000] and in extreme cases the people rebelled and killed their king.[1001]

The strengthening of the kingship naturally tended to weaken the assembly. The Lacedaemonian kings had a right to make war on whatever state they pleased, and any citizen who obstructed this power was accursed;[1002] if, too, in anything the people gave a wrong decision, the kings and council could set it right.[1003] Under the Frankish monarchy the general assembly seems to have entirely disappeared in the sixth century A.D., to be revived in the latter part of the seventh,[1004] in a form which took little account of the commons.[1005] In the other Germanic tribes which entered the Empire the effect of the migration was to strengthen the king and to weaken in a corresponding degree the power of the people.[1006] In Russia Tartar domination, converting the legitimate princes into tyrants, effected the downfall of[173] the assemblies.[1007] The building up of large states, too, necessarily degrades or destroys popular gatherings.[1008]

The heritage of the Roman assembly from the earlier tribal time must have been slight as well as vague—a heritage diminished further by the growing power of the king and nobles. The assumption has often been made that from the beginning the Roman assembly was sovereign. The view rests in part, however, on a confusion of two ideas which should be kept distinct. In its broadest sense populus designates the state, which is sovereign whether it expresses its will through the king, the senate, or the popular assembly, or through the concurrence of two or more of these elements. In interstate relations it always has this meaning. More narrowly populus signifies the masses of citizens in contrast with the magistrates or with the senate.[1009] In the latter sense it cannot be said that the populus was from the beginning sovereign. The Romans themselves of later time understood that in the regal period the senate had the wisdom to advise, the king possessed the imperium, whereas the people enjoyed but a limited degree of freedom, right, and power.[1010] Their condition was not liberty but a preparation for it.[1011] Their assembly, like that of other early Europeans, had no power of initiative; it met only when summoned by the king, and could consider those matters only which the king brought before it. Its object must have been chiefly to receive information and to witness acts of public importance. In no case did the king call upon the assembly for advice; counsel belonged exclusively to the wise elders, who composed the senate;[1012] and should he wish to instruct the people in the merits of a proposed measure, he would himself address them and perhaps invite the most respected senators or his most trustworthy supporters among the private citizens to give the masses the benefit of their wisdom.[1013] In other than judicial[174] assemblies the privilege of speaking must have been sparingly granted.[1014] Finally no elective or legislative act of the curiae was valid without the authorization of the senate (patrum auctoritas).[1015]

With reference to the specific rights of the assembly, Dionysius[1016] states that Romulus granted the commons three prerogatives, (1) to elect magistrates, (2) to ratify laws, (3) to decide concerning war, whenever the king should refer the matter to them. Livy’s[1017] stricture on the absolutism of Tarquin the Proud implies, too, that constitutionally the assembly should have had power to decide on peace and war. But stress should be laid on the admission of Dionysius that probably all the questions above enumerated, or at least those of peace and war, were referred to the assembly at the pleasure only of the king—that the decision of them was not a right of the people, but a concession on the part of the sovereign.[1018] Still more important, these generalizations are in great part invalidated, as Rubino[1019] has shown, by the testimony of their authors. When either refers to individual cases of treaty-making under the kings, he never connects the assembly with the proceedings.[1020] It is significant, too, that the formula of treaty makes the king the only actor, taking no account of the people.[1021] Usually peace continued merely through the lifetime of the king who contracted it,[1022] but a truce for a definite period was binding to the end, even after his death.[1023] Under the republic to the time of the decemvirs the treaty-making power resided in the consuls[175] and senate.[1024] Ordinarily either a senatus consultum empowered the magistrates to use their discretion[1025] or sanctioned the agreement when made.[1026] More rarely the senate treated directly with ambassadors from the enemy.[1027] The clamor of the plebeians sometimes prevailed upon the senate to negotiate for peace;[1028] and at other times it was merely by accident that the people heard of the conclusion of a treaty.[1029] After the decemviral legislation the plebeian assembly of tribes slowly acquired the right of ratification;[1030] in fact it was not till the Second Samnite war that their vote came to be essential.[1031] Among the archives devoted to treaties and alliances, accordingly, senatus consulta and plebiscites alone are mentioned.[1032] The very fact that in the later republic the ratification of treaties belonged exclusively to the tribal assembly[1033] proves that it was an acquired right of the people; for we may set it down as a fixed principle that the curiae and the centuries yielded none of their prerogatives to the tribes.[1034]

As regards the right of the people to declare war a distinction must be drawn between defensive wars, which, admitting neither choice nor delay,[1035] could not be referred to their decision, and aggressive wars, which were in the option of the state to undertake or avoid. Yet even in the case of offensive wars, though the approval of the people was doubtless often sought, they exercised under the kings and in the early republic no real right. When the king or magistrate felt that Rome had suffered injury from a neighboring state, he despatched an ambassador to seek reparation. If the demand was not complied with, the ambassador,[176] calling Jupiter and the other gods to witness the injustice, added: “But we shall consult the elders in our own country concerning these matters, to determine in what way we may obtain justice.” When the messenger had returned to Rome and had made his report, the king consulted the senate substantially in these words: “Concerning such matters, differences, and disagreements as the pater patratus of the Roman people, the quirites, has conferred with the pater patratus of the ancient Latins and of the ancient Latin peoples—which matters ought to be given up, performed, discharged, but which they have neither given up nor performed nor discharged—declare,” said he to the senator whose opinion he wished first to obtain, “what you think.” Then the elder thus questioned replied, “I think the demand should be enforced by a just and pious war; and therefore I consent to it and vote for it.” Then the rest were asked in order, and when a majority agreed in this opinion, war was thereby voted.[1036] In all this account there is no mention of the people; but afterward when the fetialis reached the border of the enemy’s country, and pronounced the formula for the declaration of war, he included a statement that the populus Romanus had ordered it: “Forasmuch as the populus Romanus of the quirites have ordered that there should be war with the ancient Latins, and the senate of the populus Romanus of the quirites have given their opinion, consented, etc., I and the populus Romanus declare and make war on the peoples of the ancient Latins.”[1037] In this connection, as in all formulae applying to international relations, populus means not the assembly but the state; hence the use of the word cannot be taken as evidence of the existence of a popular right to declare war.[1038] Besides this formula we have in support of such a right the general statement only of Dionysius and the implied idea of Livy, referred to above,[1039] neither of which is in itself of especial weight. On the other hand the individual kings seem to have been free to make war at their discretion. The fact that peace[177] and war are represented as depending upon the character and inclinations of the king[1040] further establishes the real view of the Roman historians. In a succeeding chapter[1041] it will be made clear that not till 427 did the centuriate assembly acquire the right to declare an aggressive war; probably not till some time afterward was this right established as inalienable. Previous to that date the warriors, perhaps in a contio, were occasionally called on to give their approval, doubtless, as has been explained above,[1042] to increase their enthusiasm for the war.

With reference to the legislative activity of the assembly under the kings, it is necessary to call attention to the fact that among all peoples in the earlier stages of their growth law is chiefly customary.[1043] At the time of her founding Rome inherited from the Latin stock, to which her people mainly belonged, a mass of private and public customs, which, owing their existence to no legislative power, were the result of gradual evolution. Under such conditions, as in Homeric Greece, the king or chief settled disputes in accordance with these usages, though in the general belief his individual judgments came directly to him from some god. The Homeric king received his dooms—θέμιστες—and even his thoughts from the gods.[1044] The mythical or semi-mythical legislators of Greece, as Minos, Lycurgus, and Zaleucus, were given their laws by revelation. In like manner Numa, who may be considered a typical legislator for primitive Rome,[1045] received his sacred laws and institutions from the goddess Egeria;[1046] and Romulus, the first great law-giver,[1047] was a demi-god, who passed without dying to the dwelling-place of the immortals.[1048] Roughly distinguished, Romulus was the author of the secular law, Numa of the sacred.[1049] In general the Romans[178] of later time looked back to their kings, the founders of their state,[1050] as the authors not only of their fundamental laws and institutions but even of their moral principles.[1051] Doubtless the Roman view of the ancient king is an image of the republican dictatorship, of the extraordinary magistratus rei publicae constituendae, of the consul freed from his various limitations;[1052] but the picture, stripped of the distinctness which came with the gradual formulation of constitutional usage, is, as comparative study shows, true to the primitive condition which it aims to represent.

From this early conception the idea of human legislation gradually emerged. Not daring on his own responsibility to change a traditional usage which the people held sacred, the magistrate found it expedient to obtain their consent to any serious departure,[1053] with a view not to legalizing the proposal, but to pledging the people to its practical adoption. When and how the primitive acclamation gave way to the orderly vote of the comitia curiata cannot be ascertained from the sources.[1054] After this stage was reached, the transaction between king and people had the following form: “I ask you, quirites, whether you will consent to, and consider it right, that T. Valerius be a son to L. Titus as rightfully and legally as if born of the father and mother of the family of the latter, and that the latter have the power of life and death over the former as a father over his son. These (questions) in the form in which I have pronounced them, thus, quirites, I ask you.”[1055] The magistrate brought his formulated request before the people (legem ferre), who accepted it (legem accipere); the question (rogatio) was directed not to the assembly as a whole but to the component citizens, who individually[179] replied ut rogas, “yes,” or antiquo, “no.”[1056] By this procedure the citizens bound themselves to the acceptance of the proposition on an oral promise, which was the strongest form of obligation known to them. Herein is involved the fundamental idea of lex, which was not a command addressed by the sovereign to the people or a contract between ruler and ruled, but an obligation which the citizens took upon themselves at the request of the magistrate.[1057] The verb iubere, which designates the people’s part (populus iubet) in the passing of laws and resolutions, did not originally have the meaning “to order,” which belonged to it in the age of Cicero. Some have derived it from ius habere, “to regard as right;”[1058] others from judh, an extension of the root ju, “to bind.”[1059] In either case it seems to mean no more than to accept or hold as right or as binding. In its widest sense lex denotes any obligation which one party takes upon himself on the offer of another. In this meaning it may apply to a business contract,[1060] in which alone the obligations are reciprocal, to the instruction imposed by a superior magistrate upon an inferior,[1061] to the auspicium which the magistrate formulates and the god accepts,[1062] to the ordinance which the subject, without being consulted, receives willingly or unwillingly from the ruler[180] (lex data),[1063] as well as to the statute established by the question of the magistrate and the affirmative answer of the citizens (lex rogata). The leges of the community, with which alone the present discussion is concerned, were distinguished as publicae.[1064] A lex of the kind was not necessarily general,[1065] but applied as readily to an individual citizen[1066] as to the entire body, to a declaration of war,[1067] or the banishment of a citizen,[1068] as well as to a universal rule of conduct. In the earlier time the lex rogata, or simply lex, seems to have designated any act of an assembly, elective or judicial as well as law-making in the modern sense.[1069] But in the time of Cicero it had come to mean any act of an assembly which was neither an election nor a judicial decision,[1070] and in the latter sense the word is used in this volume.

The acceptance of a proposition by the citizens obligated themselves[1071] but not the government. The king, who retained office for life and was irresponsible, could not be held amenable to law; against a tyrannical ruler the only resource was revolution. Although the republican magistrates possessed remarkably[181] great power, as temporary functionaries they belonged to the people, along with whom they were bound by the laws.[1072]

To the end of the regal period the legislative activity of the people remained narrowly restricted. The body of leges regiae, described as curiate by Pomponius[1073] on the supposition that they were passed by the assembly under royal presidency,[1074] was little more than the ius pontificum—the customary religious law—with whose making the curiae had nothing to do.[1075] If the king wished to admit new citizens,[1076] erect public works, levy forced labor on the citizens,[1077] reform the military organization,[1078] punish a man with chains or death,[1079] make a treaty, or even declare an offensive war, no power compelled him to submit the measure to the citizens. Although he must often have found it expedient to engage their coöperation in national enterprises, or more rarely in a legal innovation,[1080] it may be stated with confidence that before the beginning of the republic the curiate assembly had not acquired the right to be consulted on any of these matters—that its slight activity in legislation and administration was a concession from the king rather than a right; for under the republic such activity, gradually increasing, belonged to the centuries and the tribes. We may accept without hesitation the[182] principle that in form if not in substance the curiae retained all the powers which they had ever actually possessed.

Judicial business, which no one has ever assumed to be a primitive function of the Roman assembly, needs no long consideration here. Among the early Indo-Europeans the settlement of disputes and the punishment of most crimes were in the hands of the families and brotherhoods; only treason and closely related offences were noticed by the state; and these cases were tried by the king in the presence of the assembly.[1081] The religious ideas attaching to crime and punishment[1082] in early Rome suggest that the priests had the same connection with these matters there as among the Celts and Germans. That condition yielded to the growing authority of the king, who is represented by the ancients as wielding an absolute power of life and death over his people and as allowing in capital cases an appeal to the assembly at his own discretion.[1083] From the general conception of the relation between king and assembly as established in this chapter, it is necessary to infer that if the people had any claim to a share in the jurisdiction, it must have been slight as well as vague, and one which they were in no position to enforce.

A review of the individual kings might give the impression that an act of the assembly was unessential to filling the regal office. Not only were Romulus and Tatius kings without election,[1084] but according to Livy[1085] Numa’s appointment was made by the senate alone; and Servius ruled long and introduced his great reforms before his election.[1086] Tarquin the Proud to the end of his reign was neither appointed by the senate nor chosen by the people.[1087] From these four or five instances of kings who ruled without election, as well as from the fact that both the dictatorship—a temporary return to monarchy—and the office of rex sacrorum—the priestly successor to the monarch—were filled by appointment, we might[183] infer that the kingship was not elective.[1088] But on the other hand the word interregnum, which could not have been invented in the republican period and which involves the idea of election, as well as the general custom of choosing kings among primitive European peoples, may be added to the authority of our sources[1089] in favor of an elective monarchy in earliest Rome. The nomination of the king by the competent person was perhaps acclaimed in a contio in some such way as among the early Germans. Such an election, we may suppose, was in the beginning legal without further action on the part of the people. But the accession of a king was a momentous event in the life of a generation—far more important than the annual declaration of war upon a neighbor—and the advantage of a formal vote of the curiate assembly, after its institution, was obvious both to the king and to the sacerdotes; it gave to the former the solemn oral pledge of obedience from the citizens, and to the latter an opportunity to influence the proceedings through the auspices and through the manipulation of the calendar.

Under this system the king after his appointment by his predecessor or by the interrex, and after the acclamation in contio if such action took place, convoked the curiae on the first convenient comitial day of his reign,[1090] having held favorable auspices in the morning, and proposed to them a rogation[1091] in some such form as the following: “Do you consent, and regard it as just and legal, that I, whom the populus has designated king, should exercise imperium over you?” This rogation, answered affirmatively by a majority of the curiae, became a lex curiata de imperio.[1092] The informal acclamation, if it was the custom,[184] must have disappeared in time, and the passing of the curiate law was looked upon as the election proper.[1093]

Concessions to the people develop into popular rights. The citizens, deeply interested in the choice of a man who for the remainder of his life was to represent their community before the gods, lead them in war, and exercise over them the power of life and death, claimed as their first active political right the ius suffragii in the passing of this lex curiata de imperio. Hence after the institution of the republic and of the comitia centuriata, the curiae clung obstinately to this inalienable prerogative.[1094]

The development of the elective process outlined above is offered in explanation of the curious phenomenon that under the republic, while all other acts of the centuriate and tribal assemblies required no confirmation by the curiae, elections by these assemblies did require such a sanction. This explanation is the only one proposed which accords with the Roman interpretation of the peculiarity. According to Cicero it was provided[185] that in the case of all elective magistrates the people should vote twice on each that they might have an opportunity to correct what they had done, if they repented of having conferred an office on any person. In the case of the censors this second vote was cast in the comitia centuriata; all other elective magistrates received it in the curiate assembly.[1095] Rubino[1096] and others have objected that Cicero’s interpretation of the curiate law is biassed by his desire to contrast the essentially antipopular character of the demagogue Rullus,[1097] who by the terms of his agrarian law would deprive the people of their right to vote even once in the election of officials, with the wise and moderate statesmen of old, who were so devoted to the people as to allow them two opportunities to express their choice in the case of each magistrate. The orator, it is urged, could not himself know the original intention of the usage; and his interpretation is contradicted by the fact that the person who proposed the lex curiata was already a magistrate, the voting on this lex being subsequent to the election and forming no part of it.[1098]

In favor of Cicero’s interpretation it may in the first place be stated that he was not simply offering a conjecture as to the original intention of the usage, but was interpreting the formula of the law as it existed in his own day. There would be no point to his interpretation unless the formula ran somewhat like that of an election; and he affirms definitely that the law bestows the magistracy upon a person who has already received the same office from other comitia—that it is, in other words, a second bestowal of the office.[1099] That this interpretation is not a mere invention of Cicero is proved by a statement of Messala[1100] that[186] the magistracy in the strict legal sense of the term is granted by the curiate law. And the point maintained by Messala is further confirmed by that article of the agrarian rogation of P. Servilius Rullus which provides that the decemviri agris adsignandis may, if necessary, dispense with the curiate law and yet be “decemvirs in as legal a sense as are those who hold the office according to the strictest law.”[1101] In other words, the person who has been elected by the comitia centuriata or tributa is a magistratus, though not a magistratus iustus or optimo iure (optima lege); the completion of all formalities, ending with a second election (by the curiae), is essential to the latter.

Optimo iure requires explanation. It often signifies “with perfect justice,” “most deservedly.”[1102] Closely related to this meaning is that of “perfect formality,” as in making a bequest[1103] or in creating a sacerdos[1104] or a magistrate.[1105] In this sense optimo iure is interchangeable with optima lege. Developed in another direction, either phrase readily gives the idea of completeness or perfection of title, not only to property,[1106] but also to office.[1107] One who holds a perfect title to a property, or has[187] been granted a civil status[1108] or an office[1109] in a perfectly legal way, necessarily enjoys all the immunities, honors, and powers inherent in such absolute condition. To indicate that due legality has been observed in the creation of a magistrate, and that the latter has accordingly complete possession of his office, and of all the honors and powers belonging to it, the phrase ut qui optima lege sunt, erunt is often inserted in the formula of appointment or election. These words continued to be used, for example, in the creation of the dictator as long as his power remained absolute, but after it became subject to appeal, they were dropped.[1110] The author of the act was at the same time author of the condition attaching to it expressed by the phrase under consideration: in the appointment of a dictator it was the consul; in the creation of a promagistrate or the assignment of a province it might be the senate.[1111] Laws must often have contained provisions that the magistrates created under them should be ut qui optima lege.[1112] The Servilian bill most probably included an article of the kind for the decemviri agris adsignandis to be elected under it. But as the title to an office was impaired by any informality in the elective process, and as Servilius foresaw that the lex curiata might be prevented by tribunician intercession or other cause, he inserted in his bill a further provision, referred to above,[1113] that the decemviri might be officials optima lege[1114] even without the curiate sanction.[188] From what is here said it is clear that the condition of iustus or optima lege was not obtained for a magistrate by the passing of the curiate act alone, but rather by due attention to all formalities,[1115] which were brought to completion by that act.

The formula for the curiate law, in addition to its resemblance to that for elections, must have contained some reference to the imperium, as we may infer from the frequent designation of the law as a lex de imperio by Cicero. From this phrase modern writers infer that the curiate act conferred the imperium upon newly elected magistrates. The question whether it granted to a magistrate powers which he did not already possess will be considered below. For the present it is enough to state that in no instance do the ancients speak of “conferring” the imperium by the curiate law or of deriving the imperium from that law by any process whatsoever. But mention is made of conferring the imperium by a decree of the senate or by the suffrages of the people in the centuriate or tribal assembly[1116] and of confirming it by the curiate law.[1117]

[189]

The consuls and the praetor were elected by the centuries, and their imperium was sanctioned by the curiae. The dictator, too, was obliged to carry a curiate law.[1118] But the quaestors, the curule aediles, and other inferior magistrates, after their election by the tribes, did not themselves convoke the curiae for sanctioning their election; the lex was proposed in their behalf by a higher magistrate.[1119] As the origin of this custom we may suppose that the kings, and after them the higher magistrates of the early republic, used to ask the people[190] for a pledge of loyalty not only to themselves but also to their assistants, and that this custom continued even after they had come to be elective magistrates. To functionaries who lacked the imperium the expression lex de imperio could not apply; lex de potestate, though not occurring in our sources, would be the appropriate phrase.

It has generally been assumed that the curiate law bestowed a power in addition to that received through election.[1120] Something can in fact be said in favor of this view. We are told that the newly elected magistrate could attend to no serious public business till he had secured the passage of the act:[1121] till then the praetor could not undertake judicial business; the consul could have nothing to do with military affairs[1122] or hold comitia for the election of his successor.[1123] Some of Cicero’s contemporaries asserted that a magistrate who failed to pass the law could not as promagistrate govern a province.[1124] Or if without a curiate law he made the attempt, he would be obliged to conduct the administration at his own expense;[1125] and if as promagistrate he gained a victory in war, he was denied a triumph.[1126] Under such conditions it might well be said that a magistrate could engage in no serious public business before he had carried for himself the sanctioning law. But practice diverged widely from these rules. An act containing a provision for the election of functionaries might include a dispensing clause to the effect that the persons elected shall, in the lack of a curiate law, “be magistrates in as legal a sense as those who are elected according to the strictest forms of law.”[1127] Yet even without this special provision the magistrate regularly[191] attended to much business before passing the law. The first public act of the consul, praetor, or other magistrate was to take the auspices, to determine whether his magistracy was acceptable to the gods;[1128] and another auspication was held for the meeting of the curiae.[1129] It was customary, too, for the consul to make his vows to the Capitoline Jupiter and to hold a session of the senate, both of which acts had to be auspicated.[1130] These facts disprove the theory that the curiate law conferred the auspicium. In the first session of the senate here mentioned not only religious affairs but civil and military matters of great importance were discussed and finally arranged, all of which business was regularly managed without a curiate law.[1131] As to other administrative acts it is probable that the want of a lex curiata never hindered the performance of necessary business civil or military. In case of danger to the state the interrex, who wholly lacked the curiate law, or the consul before passing the law could doubtless take command of the army;[1132] and it is significant that the unlimited imperium and iudicium were granted the magistrates not by the curiae but by the senate.[1133] The law was indeed considered indispensable to the dictator in 310.[1134] It is generally assumed by the moderns that C. Flaminius, consul in 217, lacked the law;[1135] their reason is the statement of Livy[1136] that he entered upon his office not at Rome but at Ariminum. The fact, however, that in this year he carried a monetary statute before his departure for[192] the war[1137] proves that he began his official duties at Rome, and that Livy’s tirade to the contrary is empty rhetoric. Probably because he departed without attending to the usual auspices, his political opponents were unwilling to admit that he had entered on his office. But the army obeyed his command, his name remained in the fasti as consul, and his monetary law continued in force. Livy, while complaining at length of his failure to take the auspices, says nothing of the curiate law. His silence is significant.[1138] We cannot be certain that the lex curiata was not passed in his case; but we have no right to imagine that it was not and then draw far-reaching deductions from our fancy.[1139]

A more valuable instance is that of L. Marcius, elected propraetor by the army in Spain in 212.[1140] Although he could not have had a lex curiata, the senate, while censuring the election because it transferred the auspices to the camp, did not make the want of the law a ground for declaring the magistracy illegal.[1141] A still more famous case is that of the magistrates of the year 49, who with the Pompeian party fled from Rome before carrying a lex curiata, and yet were not prevented by this circumstance from holding military commands during their year of office or from continuing in command into the following year as promagistrates.[1142] A further instance is that of Pomptinus, praetor in 63, who had no curiate law; nevertheless as propraetor in 61 he governed Narbonensis where he gained a victory over the Gauls. This fact, too, is evidence that the want of the law did not in practice debar from military commands. From 58 to 54 he waited outside the[193] gates of Rome for a triumph. The senate would not grant it and some of the magistrates opposed his effort to obtain it. The privilege was at last given him by the comitia under pretorian presidency.[1143] Although the want of the law involved him in inconvenience, he finally accomplished his purpose without it. Appius Claudius, consul in 54, insisted that, should he fail to carry the sanctioning act, he should nevertheless, since he was in possession of a province decreed the consuls of his year in accordance with the Sempronian plebiscite, have imperium by virtue of a Cornelian statute until such time as he should re-enter the city.[1144] The law of Sulla, to which he referred, probably stated simply that the promagistrate was to retain his imperium till his return to the city, without mentioning the curiate law; and for that reason Appius believed the sanctioning act to be unnecessary. Cicero, who informs us of this matter, inclines to the interpretation of Appius. Our conclusion, accordingly, is that in practice, if not in legal theory, the lex curiata, however convenient it may have been, was not essential to the government of a province or to a military command. It remains to consider whether it was indispensable to the holding of comitia centuriata for elections. The same Appius Claudius maintained that though a curiate law was appropriate to the consul, it was not a necessity,[1145] implying that without the law he was competent to perform all the functions of that office. He and his colleague, therefore, who was equally without the law,[1146] were ready to hold comitia for the election of successors; and although party complications opposed the election, no one objected to it on the ground that the consuls were incompetent; for postponing the election they resorted to auspical obnuntiations[1147] and to prosecutions of the candidates for bribery.[1148] Their competence to hold the elective comitia is further established by the senate’s desire that they[194] should hold them at the earliest possible moment.[1149] The ultimate failure of these consuls to elect successors was not owing to any one’s objecting to their competence.[1150]

Scholars have attached great weight to the case of the magistrates of 49, who with the Pompeian party, as has been stated,[1151] left the city before carrying a lex curiata. Though desiring, in the Pompeian camp at Thessalonica, to hold comitia for the election of successors, it was decided that the want of the law rendered the consuls incompetent for the function.[1152] But the case requires careful examination. The Pompeians had with them two hundred senators, enough in their opinion to constitute a quorum, and their augurs had consecrated a place for taking auspices; so that it was assumed that the populus Romanus and the entire city were now located in the camp.[1153] All these circumstances clearly imply an intention to assume a temporary transfer of the city of Rome to the camp and to conduct the government in that place on the basis of this constitutional fiction. But suddenly the execution of the plan was stopped by the plea that the consuls had no curiate law! The difficulty, however, was not so serious as Dio Cassius and the moderns have supposed. The assumption of the Pompeians that the city of Rome temporarily existed in the camp implied as well the existence of a pomerium, within which the consuls could legally have held a meeting of the curiae.[1154] Or in case[195] they felt any scruple about the matter, the senate could have decreed the consuls a dispensation from the law for the purpose of holding the elections. That they allowed a mere formality to baulk them is out of the question. The whole situation is made clear by the understanding that the consuls themselves, or more probably Pompey, did not wish elections to be held or a civil government established in the camp; such a proceeding would have disturbed still further the discipline of the army and would have roused jealousies inimical to the cause. On this interpretation the want of a law, especially as it has the appearance of an afterthought, was a mere pretext.

We have seen promagistrates whose election to their respective offices had not been sanctioned by the curiae governing provinces and holding military commands; we have seen consuls who lacked the curiate sanction attending with less inconvenience to all their official duties. The same looseness characterized the application of the law to minor officials. The want of the sanction legally involved curule aediles, quaestors, and all other officials who lacked the right to convoke the curiae; and yet it is impossible that in 54, for instance, when the consuls failed to pass the law, the curule aediles and the quaestors should have remained inactive through the entire year without leaving in our sources some trace of the disturbance caused by the suspension of their administrative functions. Dio Cassius states that no judicial process could be undertaken before the enactment of the law; nevertheless Clodius as aedile in 56 prosecuted Milo before the people prior to the vote on the sanctioning act.[1155] The quaestors entered office regularly on December 5;[1156] and as the curiate law was carried for them by the consuls, they were necessarily in official duty for some time every year before their election could be sanctioned. It seems clear that ordinarily one curiate law was passed each year, under the joint presidency of the consuls and[196] praetors, for all the officials who required it.[1157] If that is true, a postponement of the law, or a failure to pass it, affected all the magistrates of the year.

The question as to the meaning of this wide divergence between constitutional theory and actual practice can find an answer only in the history of the curiate assembly. For a time after the founding of the republic it remained politically important. From the institution of the plebeian tribunate (494) to the enactment of the so-called law of Publilius Volero (471) the curiate assembly elected tribunes of the plebs.[1158] In 390, according to Livy,[1159] it voted the restoration of a citizen from exile. Rubino[1160] maintained that this assembly continued to be a real gathering of the people to the year after the battle of Cannae, 215, when the exigencies of the war with Hannibal brought into being a statute whereby the curiate act was passed by a vote of thirty lictors as the representatives of their respective curiae; in consequence the sanction was reduced to a formality.[1161] The passage in Festus on which his theory depends is seriously mutilated; and his attempted restoration is objectionable chiefly (1) because it required no statute to keep the people from attending the comitia curiata,[1162] (2) because without a statute a resolution of the assembly was valid, if each voting division was represented by a single person,[1163] (3) because the measure, accordingly, to be a relief to existing conditions, must have freed the commander rather than the men from the necessity of going to Rome to enact the curiate law. Whatever may be the true reading,[1164] we have a right to infer from the extant fragment[197] (1) that in the year mentioned, owing to the nearness of Hannibal, something was done to relieve officers in the field from the necessity of coming to Rome to propose the law for themselves, (2) that the regulation was permanent.[1165] It is known that the consul Q. Fabius Maximus presided at the consular elections for 214.[1166] He and M. Claudius Marcellus, who as proconsul was at the time in command of an army, were elected.[1167] Down to this time the custom had probably been for men who were reëlected to an office or who passed from a promagistracy to the corresponding magistracy, or the reverse, to reënact the lex curiata. But we may suppose that after the election of 215 Fabius, fearing that both he and Marcellus might be absent on military duty at the opening of their official year, secured the passage of a measure, most likely a senatus consultum,[1168] which exempted from the need of repeating the curiate law holders of the imperium who were making the transition above described. In consenting to the arrangement the senate was making a great sacrifice to the exigencies of the situation. For to maintain control over the commanders it had insisted that they should begin their terms with all due formality at Rome.[1169] The lex curiata had proved a material help to this end. But now the person already in command might continue from year to year at his[198] post, relieved of the need of coming to the capital, where he would be temporarily subject to senatorial control.

This provision of 215 was therefore an important step in the development of the imperium; and at the same time it tended to destroy the little importance still attaching to the curiate law. It seems to have been after this event and partly in consequence of it[1170] that the comitia curiata, which had long been declining, became at last a mere formality, attended by none but three augurs as witnesses to the proceedings[1171] and thirty lictors,[1172] who meekly[1173] cast the votes in obedience to the command of the presiding magistrates.[1174] It is a noteworthy fact that whereas the statesman Cicero has much to say of the curiate law, Livy and Dionysius make little reference to it. Our conclusion must be that it was more important in the late republic than in the earlier time. Probably it nearly fell into disuse after 215, to be revived some time before Cicero. Its rehabilitation was the work of the optimates, for we find the senatorial party chiefly interested in maintaining it during the age of Cicero. Since the lex curiata, subject as it was to impetrative auspices and to obnuntiations, correlated closely with the Aelian and Fufian statutes, we may reasonably connect its revival closely with their origin. Cicero[1175] tells us accordingly that the comitia curiata have continued merely for the sake of the auspices. The curtailment of the power of this assembly is analogous to the curtailment of the power of the king; as the latter was reduced, in the rex sacrorum, to a shadow continued merely for a religious purpose, the curiate comitia were likewise reduced to a shadow maintained in appearance merely for keeping up an ancient custom and for the auspices connected therewith,[1176] but in reality as a part of the religious[199] machinery operated with more or less effect for controlling refractory office-holders. During the age of Cicero the senate strove to uphold its theory of the necessity of the law, while individuals in office and even the entire group of magistrates for the year looked upon it as appropriate indeed but unessential to their functions. At its best the theory could be but partially realized in practice.

Naturally the lictors never refused to vote the lex curiata, but it was often prevented or delayed by the intercession of the plebeian tribunes.[1177] As we hear nothing of such action of the tribunes in the early republic we may well conclude that it was a late usurpation. Their veto could be offset by a special resolution of the people for dispensing the persons elected from the need of the curiate sanction.[1178] In destroying the tribunician power Sulla, perhaps consciously, strengthened the lex curiata as a weapon in the hands of the senate. He did not treat the subject, however, with his usual precision; for in 54 we find Appius Claudius appealing to a Cornelian law in justification of his intention to govern a province without the sanction.[1179] The procedure of Appius must have robbed the sanctioning act of the little vitality which it still possessed. With the downfall of the republic it fell completely into disuse.[1180]

I. In the Early Republic

From the point of view of the Roman historians the centuriate assembly,[1181] planned by Servius Tullius, came into existence at the beginning of the republic; its earliest act in their opinion was the election of the first consuls[1182] and its earliest statute the Valerian law of appeal.[1183] Though they could not know precisely when it voted for the first time, they were right in understanding it to have been the basal comitia of the republic during the patrician supremacy. It may not have been instituted till some time after the downfall of the kingship,[1184] and it certainly[202] did not reach its full complement of a hundred and ninety-three centuries till more than a hundred years after that event.

Through the early republic Rome was engaged in an almost unceasing struggle for existence. The army was constantly in the field; and the consuls from the praetorium issued their commands for the protection and the government of the city. Their measures, after discussion in the council of war, they must often have submitted to the approval of the army. The military contio was sometimes summoned for exhorting the men,[1185] for promising the reward of spoil in case of victory,[1186] for reprimanding as well as for encouraging.[1187] On one occasion the master of horse, calling a contio of soldiers, appealed to them for protection from the dictator,[1188] and they replied with a shout that they would allow no harm to befall him.[1189] Thereupon the dictator summoned another contio to witness the court-martial of the rebellious officer.[1190] On another occasion the consuls asked the soldiers to decide a question by acclamation, and they obeyed.[1191] We hear of the adjournment of a meeting on the motion of a military tribune.[1192] After a victory, honors and rewards were granted by vote of the soldiers.[1193] For acclamation, the regular form of voting,[1194] was sometimes substituted a division of the army to right and left for the sake of silence.[1195] A military assembly, meeting at Veii, decided upon the appointment of Camillus, then in exile, to the dictatorship, and despatched the resolution to Rome.[1196] In the year 357 the consul Cn. Manlius held a tribal assembly of his troops at Sutrium, and passed in it a law which imposed a tax of five per cent on the manumission of slaves.[1197] Long afterward the army in Spain elected a propraetor.[1198] It may be that much other political business was decided by the army in the troublous times which followed the overthrow of the kings. Although such acts were valid, they were always of an exceptional nature, and they ran counter to the spirit of the constitution, which[203] granted to all the citizens, not to those merely who chanced to be on military duty, a voice in the decision of such public affairs as came before the people.

It is true that the centuriate assembly, having developed from the army, showed pronounced military features. It could not be convoked within the pomerium, for the reason that the army had to be kept outside the city;[1199] before the reform it met ordinarily in military array under its officers and with banners displayed;[1200] the usual place of gathering was the Campus Martius; and no one but a magistrate cum imperio could under his own auspices convoke it for the purpose of taking a vote.[1201] For these reasons it was frequently, even in official language, termed exercitus.[1202] The use of this word, however, should not mislead us into supposing that the assembly was an actual army. Though Dionysius[1203] represents the first meeting as armed—a mere supposition, apparently to account for its known military features—the fact is that the citizens carried weapons to none of the assemblies.[1204] Strictly, too, the centuriate gathering was termed exercitus urbanus in contrast with the real army designated as exercitus armatus or classis procincta.[1205] The facts thus far[204] adduced amply warrant us in refusing to consider the voting assembly an army.

But some imagine the censorial assembly for the assessment and lustration of the citizens to have been an army.[1206] For this view they rely upon Dionysius,[1207] who states that the people came armed to the first lustrum, and upon an uncertain passage from the Censoriae Tabulae, quoted by Varro,[1208] which possibly speaks of the citizens in the lustral assembly as armati. If this word should be supplied in the passage, it might refer to an inspection of arms of the men of military age;[1209] but that circumstance would by no means imply that all who attended the lustrum were armed or were liable to military duty. It is certain that as the census-taking had primary reference to property for the purpose of apportioning taxes and other burdens of citizenship, those only were summoned who were legally capable of holding property in their own name. The list excluded all the men “in patris aut avi potestate,” however liable they were to military duty,[1210] as well as the women and[205] children.[1211] All such persons were reported by the father or guardian. It included, on the other hand, many who were exempt from military service on account of age, physical condition, or want of the necessary property qualification. Hence the censorial assembly could not have been identical with the army. Furthermore the centuriate assembly was not a basis for the levy.[1212] On the contrary, the soldiers were enrolled directly from the tribes.[1213] These facts warrant the conclusion that the relation between the army and the assembly must have been one of origin only; the organization of the assembly developed from that of the army, but at no time was the political assembly an army or the army otherwise than exceptionally or irregularly a political assembly. The truth is that an army regularly officiating as a political body would require for its explanation two revolutions—one to bring it into existence and another to abolish it; but of both cataclysms history is silent.

The growth of the political from the military organization was somewhat as follows. After the Romans had determined to use the centuries regularly as voting units for the decision of questions not purely military, they proceeded forthwith to extend the organization so as to include all the citizens. For this purpose the men of military age who were free from duty for the time being, or who had served the required number of campaigns—sixteen in the infantry or ten in the cavalry[1214]—or who were exempt on account of bodily infirmity or for any other reason, had to be admitted to the junior centuries, thus materially increasing their number and making them unequal with one another. In a state, too, in which great reverence was paid to age the seniors could not be ignored. They were accordingly organized in a number of centuries (84) equal to that of the juniors—an arrangement which made one senior count as much as three juniors.[1215] The mechanics who were liable to skilled[206] service in the army[1216] were then grouped for voting purposes in two centuries, that of the smiths and that of the carpenters,[1217] based on the two guilds in which these artisans were already organized.[1218] Authorities differ as to the classes with which they were associated. Livy[1219] adds them to the first class. Cicero,[1220] too, places a century of carpenters with that group, making no mention of the smiths, whereas Dionysius[1221] assigns both centuries of mechanics to the second class. The explanation of the difference of opinion seems to be that information as to this point was not contained in the censorial document from which the annalist (Fabius Pictor) drew his knowledge of the earlier comitia centuriata; the Romans knew only by tradition that the industrial centuries were associated in the assembly with one of the higher classes. The weight of authority inclines in favor of the first class, and the reason for the respectable place occupied by the mechanics is the high value placed on their service in early time.[1222] In like manner the trumpeters (tubicines, liticines) and the hornblowers (cornicines) were grouped each in a century for voting in the comitia,[1223] also on[207] the basis of their guild organizations.[1224] The accensi velati, who as we are informed followed the army in civilian dress and without weapons,[1225] also received a centuriate organization. As to the number of centuries belonging to them opinion has differed. Some, formerly including Mommsen,[1226] have assumed two. Livy,[1227] however, gives but one century; Cicero[1228] seems to have only one in mind; and in imperial time there was a single collegium, or century, of accensi,[1229] probably a survival of the old political group. These considerations led Mommsen to abandon his former view, to assume instead a single century of the kind; and recent writers are inclined to follow him.[1230] Lowest in rank of the supernumerary centuries was that of the proletarians.[1231] The government so designated those citizens who owned no land,[1232] and hence were poor. They were exempt from military duty, excepting in so far as they served with arms furnished by the state.[1233] Though few in the beginning, their number gradually increased till in the time of Dionysius[1234] it exceeded all the five classes together. At some time in the early history of the comitia centuriata they were formed into a century and given one vote,[1235] which was not counted with any class but was reported[208] after all the others. Dionysius[1236] wrongly speaks of it as a sixth class. The existence of this century is due to the principle that no one should be excluded from the right to vote on account of poverty.[1237]

Six supernumerary centuries have now been mentioned and the place of three—the two industrial and the one proletarian—in the voting system has been considered. With reference to the others Dionysius assigns the musicians to the fourth class, Livy to the fifth. The settlement of this question is aided by an examination into the total number of comitial centuries of the fifth class. It is given as thirty by the sources.[1238] Assuming this to be the correct number and adding to the sum of centuries in the five classes (170) the six supernumerary centuries and the eighteen centuries of knights to be considered below, we should have in all a hundred and ninety-four, which would be one too many. In an earlier chapter, however, the conclusion was reached that there were but fourteen military centuries in the fifth class.[1239] Two of the thirty centuries assigned to that class In the comitia centuriata must therefore have been in fact supernumerary. If one was the accensi, what was the other? Most probably it was the century of the tardy described by Festus,[1240] made up at each meeting of those who came too late to vote in their own classes. Obviously all writers who apply the discriptio centuriarum to the army view this century, as well as that of the proletarians, with suspicion.[1241] The two centuries of the accensi and the tardy should be included among, not added to, the thirty of the fifth class.[1242] Having reached this result, it[209] might seem advisable for us to assume no further supernumerary centuries for the fifth class, but to follow the authority of Dionysius in assigning the musicians to the fourth. Or as the trumpeters preceded the hornblowers in rank, it might be plausibly argued that the former belonged to the fourth and the latter to the fifth. In this way a compromise could be effected between Livy and Dionysius, and Livy’s three supernumerary centuries of the fifth class could be explained. Absolute certainty is unattainable. The notion of Dionysius that one century of musicians voted with the seniors, the other with the juniors, and so of the mechanics,[1243] is erroneous; for the seniors did not vote separately from the juniors.

In the centuriate assembly each of the six tribal troops of knights[1244] had one vote, and was called, therefore, a suffragium. As the term centuria had not previously applied to these groups, it was for a time withheld from them in the comitia, the six divisions being known simply as the sex suffragia.[1245] Afterward as new voting groups were added to the equites they came to be called centuries, and thence the term extended to the old.[1246] The centuriate organization of the comitia did not demand the creation of suffragia seniorum, to correspond with the centuriae seniorum of the infantry, perhaps because the six votes in the comitia centuriata adequately represented the whole number of patricians. As the equites originally provided their own horses,[1247] they held their rank for life, not merely through the period of service. After the state had undertaken to furnish money for the purchase and keeping of the horses,[1248] the eques retained his public horse, and consequently his membership in an equestrian century, long after his retirement from active duty.[1249] The increase in the number of equestrian votes was owing to the[210] participation of plebeians in the mounted service.[1250] From them twelve equestrian centuries were formed for the centuriate assembly, and added to the six groups already existing. This increase probably came about in the course of the fourth century, accompanying or following the enlargement of the infantry from two to four legions.[1251] Thus the total number of one hundred and ninety-three centuries could not have been reached till shortly before 269.

The foregoing discussion has made it evident that from the time when the comitia centuriata came into being, there were two centuriate organizations; (1) the military, which continued as before till it changed to the manipular formation,[1252] (2) the political, which developed from the military but which was at no time identical with it.

Discriptio Centuriarum of the Comitia Centuriata

[211]

Before the reform this assembly met in military array with banners displayed, each company under its centurion.[1253] The voting was oral. Probably it was at first by acclamation; if so the suggestion of individual voting, as we find it in historical time, must have come from the orderly military array, which offered itself conveniently for the purpose.[1254] The centurions may originally have served as rogatores, to collect and report the votes.[1255] Each century cast a single vote, which in historical time the majority of its members decided.[1256] The voting proceeded according to classes; the equites were asked first, hence their centuries were termed prerogative (praerogativae), then the eighty centuries of the first class. If the votes of these two groups were unanimous, they decided the question at issue; as ninety-seven was a majority, they had one to spare from their total number. If they disagreed, the second class was called and then the third and so on to the proletarian century. But the voting ceased as soon as a majority was reached, which was often with the first class; and it rarely happened that the proletarians were called on to decide the issue.[1257] The announcement of the prerogative votes greatly influenced the action of those which followed.[1258]

II. The Reform

The study of the centuriate assembly begun earlier in the volume[1259] and continued in the preceding part of this chapter shows it gradually developing its organization during the fifth and fourth centuries B.C. The main line of progress has been traced though details are unknown. The growth of popular rights in the latter half of the fourth century gave a great impetus to the activity of the assemblies in general, as is manifested in the Genucian, Publilian, and Hortensian legislation.[212] In 312 when the change was made in the appraisements from land to money, many aerarii who had voted with the proletarians must have been advanced to the higher classes.[1260] This step toward the democratization of the comitia centuriata, following upon the reduction of the patrum auctoritas to a mere formality, could not help adding new energy to the institution, leading to further changes in a popular direction. The class ratings which are known to history were established no earlier than 269.[1261] Two other more important changes, which can be but approximately dated, must now be considered in detail. They are (1) the abolition of the equestrian prerogative and the introduction of the custom of drawing by lot a prerogative century from the first class on each occasion before the voting began; (2) the division of the citizens into classes and centuries within the several tribes. These two innovations are commonly grouped together under the name of the “reform.” As they have no necessary connection with one another, they need not have been simultaneous. Livy’s narrative of the happenings of 396[1262] and of 383[1263] seems to imply that they had been introduced before these dates.[1264] But the passages here referred to[213] are uncertain; and at all events they belong to a period in which the centuries may still have been closely connected with the tribes.[1265] But should they be so interpreted as to apply to the reformed centuriate assembly, they might still be looked upon as historical anticipations for the reason that Livy’s[1266] account of the year 296 has reference to a feature of the old organization. This disposition of the three passages is supported by the following consideration. Had the reform been introduced much earlier than 269, the annalists would have assigned it to Servius Tullius, just as they assigned to him thirty tribes (reached in 318), all thirty-five tribes (reached in 241), and the census ratings in the sextantarian asses (established in or after 269);[1267] and in that case all memory of the original Servian system would have been lost. The circumstance that we are acquainted with it in some detail is proof of its survival into the third century B.C. In fact Livy’s[1268] chief reference to the reform indicates that it was completed, if not undertaken, after the number of tribes had been brought up to thirty-five (241). On the other hand it came before the opening of his third decade (218), which takes the new arrangement for granted.[1269] The contention is often made that Livy must have given an account of the reform in his second decade (292-219) now lost; and there is a universal agreement that the reform was brought about not by statute, but by arbitrary censorial disposition.[1270] The censor commonly assumed to be the author of the change is either Fabius Buteo, 241, or Flaminius, 220.[1271] Against the latter may[214] be urged the silence of Polybius[1272] and Livy,[1273] who in speaking at length of his opposition to the nobles makes no reference to this reform. In favor of Fabius it may be said that in 241 the full number of tribes was completed; and the name of the thirty-fifth, Quirina, corresponding to Romilia, the first rural tribe, suggests that the Romans intended to create no more. In naming the last tribe the censors seem to have had in mind the completion of the new system, to each component part of which they apparently guaranteed a definite share of political power, which would have been impaired by the further creation of tribes.[1274]

A little reflection, however, will convince us of the impossibility of assigning the reform to any one censor or to a definite date. Livy could not have made much of it in the lost part of his history without leaving some trace in the epitome, which mentions far more trivial matters.[1275] The only explanation of the epitomator’s silence is that the reform was so gradual as to escape marked attention. This view is supported by a strict interpretation of Livy,[1276] who supposes the change to have come about naturally with the increase in the number of tribes, and of Dionysius,[1277] who ascribes the innovation, or a part of it, to no[215] individual but to “certain powerful forces.” A conclusion as to the date of the reform, to be acceptable, must satisfy the conditions above mentioned. In earlier time, when there was a single classis, the centuries were made up within the tribes; but this simple system was rendered impossible by the increase in the number of classes.[1278] For convenience of administration the censors must soon after this enlargement have begun an effort to reduce the discord to harmony. One class may have been brought into agreement with the tribes more readily than another, and thus the readaptation may have extended through many lustra. The number of centuries probably did not long remain at one hundred and ninety-three. It may have received its first increase above that sum in 304, for instance, the date to which Niebuhr[1279] assigns the reform. The process may have been far advanced in 241, the date preferred by a majority of scholars, and completed by Flaminius in 220.[1280] The abolition of the equestrian prerogative may likewise have been gradual; it may have been retained in one class of comitial acts—elections or legislation, for instance—longer than in another. The conclusion that the changes were gradually introduced in the period from 304 to 220 would best explain all the known facts.[1281]

As no description of the reformed organization has come down to us, we are obliged to reconstruct it from the scant[216] references of various writers. It is to be noted first that the five classes continued in the new system.[1282] They were still based on the census,[1283] and were called to vote in their order as before.[1284] The distinction between juniors and seniors was retained;[1285] and as these comitia were still called centuriata, the centuries necessarily continued as the voting units.[1286] But the[217] reform brought them into direct relation with the tribes, which now served as a basis for the division into centuries and for their distribution according to age and class. On this point Livy[1287] remarks, “We ought not to wonder that the arrangement which now exists after the tribes have been increased to thirty-five, their number being doubled in the centuries of juniors and seniors, does not agree with the total number instituted by Servius Tullius; for he divided the city into four parts, ... which he called tribes.... Nor did those tribes have any relation to the distribution and number of the centuries.” From this passage we may infer (1) that in the reformed assembly the number and distribution of the centuries depended closely upon the tribes—a conclusion supported by other citations to be given hereafter, (2) that the number of centuries was changed, although we are not distinctly informed whether by diminution or increase. According to one interpretation the number of tribes was doubled by the number of centuries of juniors and seniors, and there were therefore seventy of these centuries, thirty-five juniors and as many seniors, each century forming a half tribe. This view is supported by passages in which the century bears the name of the tribe, as Aniensis iuniorum,[1288] Voturia iuniorum,[1289] Galeria iuniorum,[1290] as well as by those which in a more general way refer to voting or the announcement of the votes by or according to tribes in the centuriate assembly.[1291] It accords perfectly with other evidence that[218] the century was an integral part of the tribe.[1292] This is the view adopted by Niebuhr.[1293] It is open, however, to the fatal objection of abolishing the classes, which in fact continued through the republic, as has already been shown.[1294] He does indeed allow for a first class comprising the country tribes and a second class made up of the others;[1295] but this hypothesis is[219] overthrown by those citations which imply the continuance of all five classes,[1296] as well as by those which make the census an element of the later organization.[1297] Huschke,[1298] who places the reform in the earliest times of the republic, adopts Niebuhr’s view as to the number of centuries; but maintaining the continuance of the five classes,[1299] he considers them to be groups of tribes, the seventeen old rural tribes being distributed as follows: in the first class eight, in the second, third, and fourth respectively two, in the fifth three.[1300] But bearing in mind that these tribes were primarily local, we cannot at the same time regard them as census groups without ascribing to them an impossibly artificial character. For this reason the theory of Huschke should be rejected. To avoid this difficulty, while retaining the classes, the assumption has been made that the classes were subdivisions of the century, in other words that each century contained men of every class. This view is invalidated by the fact that the centuries continued to be divisions of the classes, which were still called to vote in their order.[1301]

The assumption of a diminution in number having proved untenable, the conclusion is that there was an increase.[1302] In view of the facts (1) that the reformed organization rested on a tribal basis,[1303] (2) that the centuries were divisions not only of the tribes[1304] but also of the classes,[1305] (3) that the tribes could not have been divisions of the classes,[1306] it is necessary to conclude that the classes were themselves divisions of the tribes with the centuries[220] as subdivisions. In other words, the work of organization took place within the tribe: the members of a tribe were first divided into five classes according to their wealth; within each class the men were grouped on the basis of age into juniors and seniors,[1307] one century for each within the several classes, making ten centuries of juniors to the tribe, or in all three hundred and fifty tribal centuries, to which are to be added eighteen centuries of knights and probably five supernumerary centuries, amounting to a total of three hundred and seventy-three. This is substantially the view of Pantagathus.[1308] Convincing evidence is afforded by a group of inscriptions of the imperial period.[1309] From them we learn that under the emperors the urban tribes comprised severally (1) a corpus seniorum, (2) a corpus iuniorum, (3) the tribus Sucusana a corpus Iulianum, and the Palatine and Esquiline each a corpus Augustale. Every corpus consisted of several centuries. In the corpus Sucusana iuniorum were eight centuries divided into two groups of five and three respectively, the first group being evidently superior to the second. At the head of the century was a centurio or curator.[1310] Eliminating the corpora which were named after emperors and which must have been instituted in their time, eliminating also the inferior centuries of the corpora seniorum and iuniorum, which were undoubtedly added either by the emperors or by the late republican censors, we have remaining five centuries to the[221] corpus as it must have stood in the period immediately following the reform. This result confirms the view suggested by Pantagathus.

It was accepted by Mommsen in his Römische Tribus (1844) and in the first seven editions of his History of Rome; but in his Römisches Staatsrecht[1311] he has offered a radical modification: while holding to the 373 centuries, he maintains that they were so combined as to cast in all 193 votes. According to this theory the first class comprised 35 × 2 = 70 centuries, each with one vote, whereas the remaining classes together, made up of 4 × 35 × 2 = 280 centuries, cast but 100 votes. How the centuries were combined Mommsen does not presume to say. He considers it possible, however, that for instance sixty of the seventy centuries of the second class were grouped by threes and ten by twos, making twenty-five voting groups in all. Had he attempted to follow out in detail the practical working of the theory, he would hardly have offered it to the public. The votes could not have been determined by a majority of component centuries, for according to the theory some groups comprised but two. Or if the group voted by individuals without regard to the component centuries, the four lower classes were practically composed not of centuries but of larger, nameless voting divisions.

His main support is the account of the centuriate organization given in Cicero’s Republic,[1312] which speaks of a hundred and ninety-three centuries, and which Mommsen[1313] believes to be a description of the reformed organization. Cicero’s[1314] assumption that the essential facts were known to the friends of the younger Scipio—the leader in the dialogue—and the discrepancy in the number of centuries of the first class between the Servian system as given by the annalists (Livy and Dionysius) and the organization which Cicero describes[1315] are the chief points in Mommsen’s favor. Against his interpretation it may be urged[222] (1) that the passage is exceedingly uncertain;[1316] (2) that Cicero makes Servius Tullius the author of the organization which he describes; (3) that though the reform affected the details of the comitial organization, the principle—a distribution of the people according to ordines, census, aetates—remained the same from the time of Servius to the time of Cicero, so that he could assume that it was known to the hearers of Scipio; (4) that as to the discrepancy in the number of centuries in the first class, on the assumption that the text is correct, (a) Cicero, who was by no means infallible, may have made a mistake,[1317] being in this case especially liable to error because in the reformed organization the first class comprised seventy centuries, or (b) in case Cicero is right, either (m) the annalists may be in error in assigning eighty centuries to the first class, or (n) in an early stage of transition from the old to the new organization the number of centuries in the first class may have been cut down to seventy with a corresponding increase of ten in some other part of the system; (5) that Mommsen’s theory is refuted by the language of Cicero,[1318] who speaks of the voting divisions of the four lower classes not as groups of centuries but simply as centuries, the absence of a name for such a group being one of the strongest arguments against its existence. Mommsen’s interpretation of the passage is in brief too strained and unnatural to commend itself to the understanding. Apart from its lack of support in the sources, an objection to the theory is[223] its extreme impracticability. Holding that juniors and seniors could not have been brought together in the same voting divisions, and assuming that the combinations were made by twos and threes and that the four lower classes had an equal number of votes, Klebs has worked out the simplest arrangement as follows:

This complex system would make the action of the centuriate assembly exceedingly slow and difficult, and would be as useless as impracticable; for if the object was to reduce the votes of the first class by ten and to make the other classes equal, that end could have been easily attained by the readjustment of numbers on the old basis, without the invention of this awkward grouping, the like of which is not known to have existed in any ancient or modern state. Such a reform, too, would bring out[224] more clearly than ever the inequality of rights in the comitia,[1320] and therefore could not have been called democratic by Dionysius.[1321] It is contradicted also by Livy,[1322] who distinctly states that the number of centuries was changed. Lastly the objection must be made that the joining of centuries of different tribes into voting units cannot be reconciled with the imperial grouping of centuries of the same tribe into corpora,[1323] and is refuted by the many citations which assume the voting or the announcement of the votes to have proceeded according to tribes[1324] as well as according to classes.[1325]

Lange,[1326] not thinking it necessary to preserve a total of a hundred and ninety-three votes but accepting in the main the view of Pantagathus, tries to bring the centuries into relation with the tribes by assuming that the seventy half-tribes, severally comprising five centuries of juniors or seniors, were given each one vote in the “concluding announcement” (Schlussrenuntiation), this vote being determined by a majority of the five component centuries. In like manner the eighteen centuries of knights were grouped in divisions of three centuries each, so as to count six votes in the final announcement, hence the name sex suffragia. The supernumerary centuries were grouped in one or two voting divisions, so that in all seventy-seven or seventy-eight votes were cast.[1327] As to the process, he believed that after the prerogative the seventy centuries of the first class and the eighteen centuries of cavalry voted simultaneously, and while their votes were being counted the second class was voting, the votes, in his opinion, not being announced as soon as known.[1328] This view as to the announcement is contradicted by the sources,[1329] which clearly imply that[225] the reports were made public as they came in. Against his theory may be urged also (1) the fact that no name existed for the half-tribe, which in his opinion cast one vote in the closing announcement,[1330] as well as (2) the fact that the sources give more than six votes to the equites in the late republic.[1331] Lange is right, however, in understanding that the voting did not now, as formerly, cease when a majority was reached, but continued till all the centuries had voted.[1332]

A solution of the problem as to the order of voting suggested by Klebs[1333] seems to satisfy all conditions. The centuries gave their votes by classes, each being announced as soon as it was ascertained. Then when all the centuries had voted, a count was taken by tribes in the order determined by lot;[1334] and a second announcement, made in that order, decided the election or other act of the people. Each candidate was declared elected when a majority of votes was reached in his favor.

[226]

Regarding the supernumerary centuries our information is extremely meagre. As it does not seem likely that influential corporations would be robbed of a privilege they once enjoyed, we may reasonably believe that the artisans, musicians, and accensi velati retained centuries of their own in the reformed organization. Cicero,[1335] however, speaks of a single century of artisans for his time. The two industrial colleges, which had existed from an early age,[1336] seem to have been joined in one and to have continued into the imperial period after nearly all the other guilds had been abolished.[1337] When the two were united, they were probably reduced to a single vote in the assembly. In like manner the liticines, or tubicines, and the cornicines were united in one college of musicians[1338] and were probably given one vote. The accensi velati, too, formed a college composed of wealthy freedmen, freeborn, and even knights.[1339] We may well suppose that it still possessed a vote in the centuriate assembly. Lastly may be mentioned the century of proletarians and that of the tardy,[1340] which were as necessary after the reform as before it.[1341] Although new centuries were added, possibly by the later republican censors and certainly by the emperors,[1342] the principle of the reformed organization remained unchanged.[1343]

In the reformed assembly the equestrian centuries ceased to[227] be prerogative.[1344] A century was drawn from the first class[1345] by lot[1346] to take the lead in voting. Then came the remainder of the class, including the equestrian centuries and the single century of artisans, eighty-eight in all. In the announcement the votes of the equites were distinguished from those of the class;[1347] and the sex suffragia, no longer exclusively patrician,[1348] were reported after the other eighty-two. The inferior place assigned to the suffragia was evidently to remove them far from their earlier prerogative position so as to free the assembly from patrician influence. Next the lower classes, among which other supernumerary centuries were distributed as in the earlier republic, voted in order; and finally came the summing up by tribes in the way described above. The old military array gave place to a civilian grouping like that already established for the curiate and tribal assemblies.[1349]

I. Elective

The first act of the centuriate assembly according to Livy,[1350] who has certainly placed the beginning of its functions at the earliest possible date,[1351] was the election of the first two consuls. Thereafter these comitia not only continued to elect the consuls, but also naturally acquired the right to choose all elective higher magistrates, extraordinary as well as ordinary, who were entrusted temporarily or permanently with some or all of the consular power—including the decemviri legibus scribundis, 451, 450, the tribuni militum consulari potestate, beginning in 444, the two censors, beginning in 443 (or 435?), and the praetors, increased gradually from one in 366 to sixteen under Caesar.[1352] The activity of this assembly in elections expanded with the growth in the number of offices; and its importance was further enhanced by the opening of the patrician magistracies to plebeians. The validity of a centuriate elective act depended upon the subsequent curiate law, which soon became a mere form, and upon the patrum auctoritas. The latter, too,[230] was deprived of all vitality by the Maenian plebiscite,[1353] which required the act to be passed before the election while the issue was uncertain.[1354] The date of this plebiscite is unknown; but it probably followed close upon the Hortensian legislation (287).[1355]

II. Legislative

In an earlier chapter[1356] it was shown that primitive Rome, like primitive Greece, regarded law as god-given—a conception which left no scope for legislation by a popular assembly. Though under the kings the people may occasionally have been called to vote on a resolution affecting their customs, the comitia curiata never acquired a law-making function.[1357] Even the declaration of war, which historical Rome looked upon as a lex, was issued by the king without the consent of the community, his only need being to secure the hearty support of the warriors.[1358] It seems probable therefore that this question came, not before the comitia, but before a military contio.[1359] From the custom of the soldiers to participate in the settlement of questions touching their interests[1360] developed the function of declaring war. The people, however, were slow in acquiring the right. It is true that several such acts are mentioned by Dionysius for the early republic—for the war against the Volscians, 489,[1361] against Veii, 482,[1362] and against the Aequians and Volscians in 462.[1363] These instances may be explained either as acclamations in contio or as exceptional votes in the comitia centuriata, or with more probability, owing to the character of our sources for those early times, as anticipations of later usage. The decisive fact in the problem is that as late as 427 a controversy arose as to whether war could be declared by order of the people only, or whether a senatus consultum was sufficient. It was settled in favor of the people by the threats of the plebeian tribunes to impede the levy.[1364] For the next hundred years mention is often[231] made of the exercise of this function by the people;[1365] and when a declaration was once issued by them, it could be recalled only by their vote.[1366] During the period of the Samnite wars the assembly still more frequently made use of this right.[1367] In better known times we find it firmly established. The people declared war against Carthage in 264,[1368] against the Illyrians in 229,[1369] against Carthage again in 218,[1370] against Macedon in 200,[1371] against Antiochus in 191,[1372] against Macedon again in 171,[1373] against Jugurtha in 111.[1374] In the case of the two Macedonian wars here referred to, the declaration is mentioned as an act of the comitia centuriata.[1375] In 167 the praetor M. Juventus Thalna attempted to pass through the tribal assembly a lex de bello indicendo against the Rhodians, but was effectually opposed by a tribune of the plebs;[1376] so that the function continued to be exclusively centuriate. Cn. Manlius Volso in 189 made war upon the Gallograeci without an order of the people or a decree of the senate, and was on that ground accused in the senate by two of his legati.[1377] We conclude, however, that the charge was fruitless from the circumstance that the senate finally decreed him a triumph.[1378] For beginning war against the Histrians on his own responsibility the consul A. Manlius, 178, was threatened with a prosecution, which was quashed by a tribunician veto.[1379] Licinius Lucullus was not even brought to trial for the war he waged without an order of the people against the Vaccaei in 151.[1380] Hence it appears that though a magistrate could not legally begin war on his own initiative, there was no real[232] danger of condemnation for so doing. The reason is that those in authority attached little importance to the right of the comitia in the matter. Only once is mentioned a fear lest the people may not give their consent to a war.[1381] One case of rejection is recorded, and even here the centuries at a second session obediently accepted the consul’s proposition.[1382] The control of diplomacy and of the revenues by the senate and magistrates assured these powers the practical decision of questions of war and peace to such an extent that ratification by the assembly could ordinarily be counted on as certain; and its influence decreased with the expansion of the empire. Meantime, however, the idea of popular sovereignty, which was expressing itself in other spheres of government, effectually demanded, if only in form, some concession to the assembly in this field as well; and accordingly in the formula of declaration “populus” wholly takes the place of the once all-important “senatus.”[1383] By such empty concessions the nobility rendered the people more docile. Thus to the end of the republic the centuriate assembly retained the constitutional right to decide questions of aggressive war, although in practice the magistrates nearly regained the place which they and the senate had held during the century following the overthrow of kingship.[1384]

The nature of our sources does not allow a precise judgment regarding the importance of the comitia curiata in the early republic. To the time of the Gallic invasion it may occasionally have passed resolutions affecting the status of citizens.[1385] But as legislation never became an acknowledged function of the curiae, we are in a position to assert that through the comitia centuriata the people were first introduced into this sphere of public life.[1386]

The earliest legislation of this assembly, in fact the earliest recorded legislative act of the Roman people, was the lex de provocatione attributed to Valerius Publicola, consul in the first[233] year of the republic, 509.[1387] It was also through the centuriate assembly that the consuls Valerius and Horatius in 449 passed a law which forbade the election of a magistrate without appeal, and affixed as a penalty the outlawing of the trespasser.[1388] The third Valerian law of appeal in 300[1389] was an act of the same assembly, whereas all three Porcian laws on the same subject seem to have been tribal.[1390] The legislative function of the centuriate assembly, resting in the pre-decemviral period simply on precedent, brought into being the statute of 471 to establish a tribal assembly for the transaction of plebeian business, improperly known as the Publilian law,[1391] the lex sacrata for the division of the Aventine among the plebeians, erroneously termed Icilian, 456,[1392] the lex Aternia Tarpeia de multae dictione, 454,[1393] the lex Menenia Sextia on the same subjects in 452,[1394] the laws ratifying the Twelve Tables in 451, 449[1395]—all excepting the second having reference to the limitation of the magisterial power. Regarding the creation of offices, no mention is made of a law for the institution of the consulate itself; but the centuries passed a law for the creation of the dictatorship, 501,[1396] and of the decemviri legibus scribundis, which should be named Sestian after the consul who undoubtedly proposed it, 452.[1397] Thus far popular legislation had no basis excepting precedent, but a law of the Twelve Tables now provided that there should be resolutions[234] and votes of the people, and whatever the people voted last should be law and valid—the first clear enunciation of the principle that the will of the people, whenever expressed, prevailed over every other authority.[1398] It was far from establishing popular sovereignty, however, for the initiative remained with the magistrates.

The activity of the comitia centuriata, thus authoritatively established, manifested itself in the passing of the Valerian-Horatian laws of 449,[1399] the lex Iulia Papiria de multarum aestimatione, 430,[1400] the law for the election of six military tribunes by the comitia tributa, 362,[1401] the law of the dictator Publilius Philo, 339,[1402] the third Valerian law concerning appeal, 300,[1403] and finally the Hortensian law, 287.[1404] All have reference to the regulation of magistracies or of assemblies. Meantime the centuriate comitia passed the law for instituting tribunes of the soldiers with consular power, 445,[1405] and censors, 443[1406] (or 435?), for increasing the number of quaestors, 421,[1407] for instituting the praetorship, 367,[1408] and the curule aedileship in the same year.[1409] All the laws thus far mentioned, excepting that for the division of the Aventine, effected important modifications of the constitution, the most of them forced upon the senate and magistrates in the struggle for equal rights in which the commons were engaged with the nobility. In like manner two provisions of the Valerian law of 342, (1) that the name of no soldier should be erased[235] from the muster roll without his consent. (2) that no military tribune should be degraded to the rank of centurion,[1410] established under the sanction of an oath certain fundamental rights on which the soldiers and their officers respectively insisted. Another provision, the total abolition of debts,[1411] if indeed it is historical, was administrative, and is considered therefore in another connection.[1412] Of the same nature, though less sweeping, was the Hortensian provision for the relief of debtors.

As soon as there came to be plebeian senators (about 400), the patricians reserved to themselves the right to decide on the legality of legislative and elective acts of the people under patrician presidency—a right designated by the phrase patrum auctoritas, which signified originally the authorization of the senators, thereafter of the patrician senators. Till 339 the patres were at liberty to give or withhold the auctoritas; but in that year an article of the Publilian law required them to grant it to legislative acts of the centuries before the voting began and while the issue was still in doubt, reducing it in this way to a mere formality.[1413] The effect was to free centuriate legislation from the constitutional control hitherto exercised by patrician senators.[1414] Henceforth the resolutions of this assembly could be declared illegal by no less than a majority of the entire senate. The Publilian statute, accordingly, deprived the patricians of an important power, whereas the senate as a whole continued through its consulta to exercise an increasing influence over the comitia centuriata. Polybius rightly ascribes to the consuls, therefore, the function of bringing the resolutions of the senate before the assembly. It could not have been the intention of Publilius Philo to energize the comitia centuriata[236] by this provision; for another article of the same statute, confirming the validity of the tribunician assembly of tribes, as then actually constituted exclusively of plebeians, paved the way for the Hortensian law, which by making the acts of the tribunician assembly in every respect equal to those of the centuries, deprived the latter of their great importance as a factor in constitutional progress. From the time of Hortensius to the time of Sulla no constitutional statute is known to have been enacted by the centuriate assembly; though our sources do not give us clear information on the point, it is highly probable that the consuls and dictators of this period preferred to bring their measures however important before the tribes.[1415] In Sulla’s time the lex Valeria, 82,[1416] clothing him with his extraordinary dictatorship rei publicae constituendae, must have been passed by the centuries, which alone in addition to the politically obsolete comitia curiata could be summoned by an interrex, as was the author of the law. This act, Lange remarks, cannot well be considered a revival of the legislative power of the centuries, as it was not only passed through intimidation and under a magistrate who had no constitutional right to initiate legislation, but it also created a legalized tyranny destructive of popular freedom.[1417] In the words of Cicero it was the most iniquitous of all laws and most unlike a law.[1418] Only one of Sulla’s statutes, the lex de civitate Volaterranis adimenda, 81, which, depriving the Volaterrani of their civitas cum suffragio, placed them in the condition of the Latins of Ariminum, is known to have been an act of the centuries.[1419] Probably all his other laws were ratified by the tribes.[1420] C. Julius Caesar preferably used the tribes, although it is possible that his lex de provinciis and his lex iudiciaria came before the comitia centuriata.[1421]

Sulla’s constitutional legislation curtailed the powers of the plebeian tribunes and of their assembly, proportionally increasing[237] the importance of the centuries; and although his form of government was of short duration, the optimates thereafter naturally preferred the comitia centuriata for the ratification of senatorial resolutions.[1422] To this assembly accordingly belong the leges Vibiae of the consul C. Vibius Pansa, 43, which confirmed the acts of Caesar, and took the place of Antony’s leges de coloniis deducendis and of his lex de dictatura tollenda.[1423]

On the institution of the censorship, and by the law which called the office into being, it was enacted that elections of censors should be ratified, not by the curiae as in the case of other magistrates, but by the centuries themselves.[1424] Before this date the principle was already established that the people should vote twice in the election of every magistrate in order that if they repented of their choice, they might recall it by a second vote.[1425] As the primary function of the censors was the periodical reconstitution of the comitia centuriata, it was doubtless thought appropriate that this assembly alone should be concerned with the election. The lex centuriata de potestate censoria, evidently passed under consular presidency, remained, like the curiate law in confirmation of elections to other offices, a mere form. It was of too little practical significance ever to be noticed by the historians; in fact no individual instance of the passing of this act is mentioned by any extant writer. Characteristically the lex Aemilia, 433, which is alleged to have cut down the term of censorship to eighteen months,[1426] and the lex Publilia Philonis, 339, which provided that at least one censor must be a plebeian,[1427] were centuriate, whereas the Licinian-Sextian law, 367, which provided that one consul must be a[238] plebeian,[1428] and the Genucian law, 342, permitting both to be,[1429] were plebiscites.

An occasional attempt was made by a magistrate to usurp for the comitia centuriata a share in the administration. The first which is worthy of notice,[1430] even though it may be mythical, is the agrarian proposal of Sp. Cassius, 486. According to the sources it was opposed by the senate and the colleague of the mover. Far from enacting it into a law, the author, on the expiration of his consulship, was himself accused of attempting to usurp the royal power, and was, in one version of the story, condemned to death by the assembly to which he had offered the bill.[1431] The senate must have taken very seriously this first attempt of a magistrate to transfer some of its administrative power to the comitia. The law for the division of the Aventine Hill among the people, 456, was actually passed, most probably by the centuries.[1432] It was forced upon the government by the plebeians, and did not serve as a precedent for the future. The Valerian law of 342,[1433] which abolished debts, was an extraordinary administrative measure similar in character, but far more sweeping, to the clause for the relief of debtors in the Licinian-Sextian plebiscite.

If then the centuriate assembly was excluded from the field of administration, it must certainly in pre-decemviral times have had no part in religious legislation. The law which regulated the intercalary month inscribed on a bronze column by Pinarius and Furius, consuls in 472,[1434] and the ancient law composed in archaic letters, mentioned in connection with the year 363,[1435] requiring the praetor maximus to drive the nail on the ides of September, must accordingly have been acts, not of the centuriate[239] assembly, but of the pontifical college. By the ratification of the Twelve Tables, composed chiefly of private laws and of closely connected religious regulations, an example was set for the invasion of both of these legal spheres by the centuriate assembly. But the precedent remained unproductive; for at this time the tribal assembly under plebeian or patrician magistrates was recognized as competent for legislation, and naturally took to itself the function of enacting the less weighty, for a time generally the non-constitutional, laws.[1436] We are not to imagine the field of legislation clearly divided into constitutional, private, religious, and other departments; aside from the question of declaring an offensive war, which remained strictly the province of the comitia centuriata, the distinction in legislation was simply between the more and the less important; the dignified assembly of centuries, organized on an aristocratic-timocratic basis, was entrusted with the weightier business, whereas the simpler tribal assembly, which was easier to summon and more expeditious in action, served well enough for the despatch of lighter business. The question of the assembly to be employed was largely one of inertia; it required a far greater force of circumstances to set in motion for legislative purposes the cumbrous centuriate assembly than the relatively mobile gathering of the tribes.

III. Judicial

The jurisdiction of the people in whatever assembly was confined to cases of crime and of serious disobedience to magistrates.[1437] It was not exercised by them in the first instance but only by way of appeal. In the opinion of the Romans Tullus Hostilius was the first to grant an appeal,[1438] necessarily to the comitia curiata, which under the kings remained the only formally voting assembly.[1439] During the regal period, the well attested[240] appellate function of the comitia[1440] was simply precarious, depending wholly on the pleasure of the king.[1441] The Romans represented the advance in liberty brought by the republic as consisting partly in the establishment of the right of appeal for every citizen through the lex de provocatione of Valerius,[1442] a consul of the first year of the republic—according to Cicero the first law carried through the comitia centuriata—providing that no magistrate should scourge or put to death a citizen without granting him an appeal to the people.[1443] Although the historical existence of this Valerius has been questioned, and though his law has the appearance of being an anticipation of the Valerian law of 449, or more closely of that of 300,[1444] we must admit in favor of its reality that the decemvirs were themselves exceptionally above appeal and that their laws guaranteed to the citizens an extensive use of the right.[1445] The appellant, however, had no legal means of enforcing his right against the magistrate; he could do no more than “throw himself on the mercy of the crowd, and trust that their shouts or murmurs would bend the magistrate to respect the law.”[1446] The first lex Valeria, accordingly, brought little real benefit to the citizens.[1447] The[241] right was recognized and its application extended, as intimated above, by the Twelve Tables, in which various laws relating not only to capital crimes but to some of less importance granted an appeal to the people.[1448] It was provided also by a special statute of the code that judgments as well as laws involving life or citizenship could be passed only by the comitiatus maximus, which is evidently the comitia centuriata.[1449]

The Valerian-Horatian law of appeal, 449, was directed against the recurrence of the decemvirate or any similar magistracy with absolute jurisdiction, and hence resembled neither the laws of the Twelve Tables referring to the subject nor the Valerian law of 509. It provided that any one who brought about the election of such a magistracy might be put to death with impunity,[1450] and is alleged to have been reinforced by a Duillian plebiscite of the same year, which set the penalty of scourging and death for the same offence.[1451] These regulations could not refer to the dictatorship, which was appointive not elective, and which continued to possess absolute jurisdiction for more than a century after the decemviral legislation.[1452]

But legal rights by no means imply actual enjoyment; and the decemviral laws of appeal must have long remained substantially inoperative through lack of a power sufficiently interested in their enforcement; “the might of the few was stronger than the liberty of the commons.”[1453] The right was limited, too, by the first milestone,[1454] and hence did not affect the imperium militiae.[1455] The only punishment of a magistrate for refusal to[242] grant an appeal even by the Valerian law of 300, was to be deemed wicked.[1456] Furthermore the oft-recurring dictatorship was unrestricted by the law, being in this respect a temporary restoration of the regal office.[1457] Not till after the enactment of the last Valerian statute did the people begin to enjoy in fact the privilege which had long been constitutionally theirs. The enforcement of the law, as in general of the rights of the citizens, was chiefly due to the plebeian tribunate, “the only sure protection even of oppressed patricians,”[1458] but itself a limitation on the jurisdiction of the assembly.[1459] At some unknown date after 325[1460] the dictator’s authority within the city was subjected to appeal; and it has accordingly been suggested that this limitation was due to the Valerian law of 300.[1461]

The practical establishment of the right of appeal ordinarily led the magistrate in the exercise of his disciplinary power to substitute light fines and imprisonment, which he had full power to enforce, for the heavier penalty of scourging.[1462] But[243] in case of crimes, especially perduellio and parricidium, public sentiment compelled him to prosecute the accused to the full extent of the law. In the former accusation the consul of the early republic appointed duumviri perduellioni iudicandae for each case as it arose.[1463] This office is obscure because, without being formally abolished, it fell early into disuse, its function passing to the tribunate of the plebs. Of the three cases attributed by the sources to these duumviri, that of Horatius[1464] belongs to the regal period, and is a mythical prototype of the republican procedure. The offence has the appearance of parricidium. Only by the broadest interpretation could perduellio be made to cover the murder of a sister.[1465] The second case is that of M. Manlius, 384, according to the more credible account,[1466] whereas Livy[1467] himself is of the opinion that the prosecutors were the plebeian tribunes. We may conclude, then, that the duumviri were still employed at this date.[1468] The third case is an unsuccessful attempt in 63 to revive the office for the trial of C. Rabirius.[1469] The first republican law of appeal must have empowered the comitia to order the appointment of these officials by the magistrate;[1470] and it seems probable that at a later date unknown to us they began to be elected by the[244] people.[1471] The function of the duumviri was to try the case and pronounce sentence, from which if condemnatory the accused had a right to appeal to the comitia centuriata.[1472] From the analogy offered by the questorian procedure we may infer that the duumviri requested from a higher magistrate permission to take auspices for that assembly, over which they presided in the final trial.[1473]

All capital crimes committed by a citizen against another were in a similar way referred by the consuls to the quaestores parricidii as their deputies.[1474] The activity of these officials is first mentioned by the annalists in connection with the trial of Sp. Cassius, not for murder but for perduellio.[1475] Lange’s[1476] explanation that the quaestors were appointed duumviri for the trial would satisfy all requirements; yet in myths of this kind we need not expect absolute legal consistency.[1477] According to another, perhaps even earlier, version he was tried and condemned at home by his father.[1478] The second instance is the trial of M. Volscius, 459, for false testimony,[1479] which was likewise a capital crime. Their judicial competence was recognized by the Twelve Tables;[1480] and two capital cases are assigned to their jurisdiction after the decemvirate, (1) that of Camillus on an accusation variously stated by the ancient authorities;[1481] he[245] avoided capital prosecution before the centuries by retiring into exile, and in his absence was condemned by the tribes to a fine of 15,000 or perhaps 100,000 asses: (2) that of T. Quinctius Trogus brought by the quaestor M. Sergius,[1482] which must have taken place after 242.[1483] The reason for the fewness of the known cases is to be sought in the circumstance that their jurisdiction was substantially limited to common crimes, whereas political crimes came at first before the duumviri and afterward before the tribunes of the plebs.[1484] The criminal jurisdiction of the quaestors must have continued till the institution of standing quaestiones.[1485]

While the importance of the comitia centuriata as a criminal court was enhanced by the lex Valeria Horatia and the Duillian plebiscite of 449, which prohibited the election of a magistrate with absolute jurisdiction, the number of officials competent to bring capital actions before this assembly was increased as a result of that law of the Twelve Tables which enacted that all resolutions concerning the caput of a Roman citizen should be offered to the centuries only.[1486] Thereafter the tribunes were required to prefer their capital accusations before this assembly, for the summoning of which they, like the quaestors and the duumviri perduellioni iudicandae, requested the auspices of a higher magistrate, ordinarily after 367 of a praetor.[1487] For a time, probably till the Hortensian legislation, they were dependent[246] upon the patrician magistrates for this privilege.[1488] According to our sources the tribunes, with the approval of the consuls,[1489] entered upon their new sphere of judicial activity by bringing a capital charge against Appius Claudius and Sp. Oppius, past decemvirs, for misconduct in office, the specific charge being the abuse of justice in the interest of a person or of a party.[1490] The suicide of the accused prevented the trial. On the eight remaining decemvirs they passed in the same assembly a sentence of exile.[1491] M. Claudius, too, condemned for false testimony, was exiled, the death penalty being mitigated also in his case.[1492] The tribunes of 439 are said to have accused L. Minucius and C. Servilius Ahala for the part they had taken in the death of Sp. Maelius, and two years afterward Servilius was sentenced to exile by the comitia centuriata, to be recalled later by the same body. The charge against the former was false testimony, against the latter the putting to death of a citizen who had not been legally sentenced.[1493] Livy next mentions a charge, probably of perduellio, brought by the tribunes against Q. Fabius, 390, for having, in violation of the ius gentium, fought against the Gauls while he was an ambassador to them. He, too, is said to have died before the trial.[1494] All these cases are uncertain. If historical, they may represent the beginnings of capital jurisdiction of the tribunes, in rivalry with the duumviri; or they may in reality, like the case of M. Manlius, 384, already mentioned, have been duumviral. On either alternative they came before the centuriate comitia.

[247]

As we approach firmer historical ground, we hear of three accusations of unnatural lust alleged to have been brought by the tribunes of the plebs before the same comitia: (1) that against L. Papirius, 326,[1495] (2) that against L. or M. Laetorius Mergus, a military tribune, quod cornicularium suum stupri causa appellasset,[1496] (3) the case mentioned by Pliny and others against a person of unknown name, which probably belongs to this period.[1497] The second case seems to be a trial of official accountability, which fell within tribunician jurisdiction according to the usage of historical time; the others are too little known to be legally formulated.

In this period falls the attempted prosecution of Appius Claudius Caecus, 310, on the ground that he had not laid down the censorship at the end of the limit of eighteen months.[1498] The accusing tribune ordered him to be seized and imprisoned, but three colleagues interceded.[1499] About the same time M. Atilius Calatinus was unsuccessfully prosecuted on a charge of having betrayed Sora,[1500] probably in connection with the defection of that town to the Samnites in 315.[1501]

In reviewing the cases said to have been brought by tribunes before the comitia centuriata it is surprising to find the period from the institution of the office to the trial of Q. Fabius, 390, swarming with such prosecutions, whereas for the century intervening between that date and the Hortensian legislation comparatively few cases are recorded and those of little significance.[1502] These circumstances tend to prove that the cases assigned to the earlier and less known period either belong mostly to the jurisdiction of the duumviri or of the quaestors rather than of the tribunes, or are in great part mythical, and that the tribunes, therefore, exercised no extensive capital jurisdiction[248] before the enactment of the Hortensian law.[1503] We are led thence to the conclusion that either by an article of the statute of Hortensius or at least as a recognized consequence of the high place in the government assured the tribunes by it, the jurisdiction of these magistrates in political cases was freed from every restraint. At this time they succeeded wholly to the place of the duumviri. The cases of which the tribunes had cognizance were thereafter exclusively political, whereas the questorian jurisdiction was confined to murder and other common crimes. This distinction was not a limitation upon the power of the tribunes, who if they chose might have superseded the quaestors as easily as they had superseded the duumviri. It was rather a division of functions adopted by the tribunes themselves in view of their own political character and on the basis of the relative dignity of the two offices. The chief judicial function of the tribunes, accordingly, was to hold officials responsible for their administration, though occasionally they called private persons to account for their conduct as citizens. All grades of officials were within their jurisdiction, but most of the cases were against the higher magistrates.

The first tribunician case of the kind after the Hortensian legislation, and the first which is absolutely free from historical doubt, is that brought against P. Claudius Pulcher on the ground that as consul, 249, he fought the naval battle off Drepana contrary to auspices, thereby losing his fleet. After the comitia had been interrupted by a storm, the intercession of colleagues against the resumption of the trial saved him from the death penalty. As the result of a new trial before the tribes, however, he was fined 120,000 asses, 1000 for each ship lost.[1504] His colleague, L. Junius, by suicide escaped condemnation on a charge of perduellio.[1505] In 212 two tribunes of the plebs prosecuted[249] M. Postumius Pyrgensis, a publican, before the tribes for fraud, setting the penalty at 200,000 asses; but the accused with his friends violently broke up the assembly, whereupon the tribunes, dropping the original charge, prosecuted him for perduellio,[1506] we should suppose before the centuries.[1507] Among the complaints urged against him by the consuls in the senate were that “he had wrested from the Roman people the right of suffrage, had broken up a concilium plebis, had reduced the tribunes to the rank of private persons, had marshalled an army against the Roman people, seized a position, and cut the tribunes off from the plebs, and had prevented the tribes from being called to vote.” Specifically the crime must have been perduellio.[1508] Before the day of trial he withdrew into exile. In his absence the plebs on the motion of Sp. and L. Carvilius decreed that he was legally in banishment, that his property should be confiscated, and that he should be interdicted from fire and water. In this connection it should be noticed that whereas the banishment of a citizen by lex or iudicium was the exclusive right of the centuries,[1509] the tribes were competent to decree him an exile after his voluntary retirement.[1510] Some of the coadjutors in the violence of the publican above mentioned left their bail and followed him into exile; others were imprisoned to await capital trial, with what result the historian does not inform us.[1511]

In the same year Cn. Fulvius, a praetor, met with military reverses through gross cowardice,[1512] and in the following was prosecuted in a finable action by a tribune of the plebs for having corrupted his army by the example of his unsoldierly habits. Finding in the course of the trial that the fault of the magistrate was far more serious than had been imagined, and that the people were in a temper to vote the extreme penalty, the prosecutor[250] changed the form of accusation to perduellio on the ground that such cowardly conduct in a commander threatened the existence of the state. In this instance, too, the accused avoided trial by withdrawing into exile.[1513] In 204 by a decree of the senate a special commission, consisting of the praetor for Sicily with a council of ten senators,[1514] was appointed for the trial of a legate of Scipio, Q. Pleminius, on the charge that he had robbed the temple of Persephone in Locri and had violently oppressed the Locrians.[1515] The commission brought him and his accomplices in chains to Rome and cast them in prison to await their trial for life before the centuries.[1516] The day of trial was continually deferred, till finally Pleminius, now charged with the instigation of a plot to burn the city, was put to death in prison.[1517] The fate of his accomplices is unknown.[1518] Livy[1519] remarks that while Pleminius was languishing in jail the wrath of the populace gradually changed to sympathy, to such an extent doubtless as to convince the authorities of their inability to secure a popular verdict in favor of the death penalty. In fact since the death of M. Manlius Capitolinus, 384, no example of the execution of a death sentence pronounced by the assembly is recorded in history.[1520] But the magistrate probably often inflicted corporal punishment in violation of the third Valerian law. To put an end to this abuse, and at the same time to embody in legal form the popular feeling against the application of the death penalty to citizens, a Porcian law absolutely forbade the scourging or slaying of a citizen under the imperium domi, the article prohibiting[251] the sentence of death being afterward reënforced by other enactments.[1521] There has been much discussion as to the authorship of this law; probably it was the work of M. Porcius Cato the Elder in his praetorship, 198.[1522] Another Porcian law, probably of P. Porcius Laeca, praetor in 195, extended the right of appeal to Roman citizens who were engaged in the affairs of peace outside the city, in Italy and the provinces, and were therefore under the military imperium.[1523] According to this law the citizen who appealed was sent to Rome for trial by the appropriate civil authorities. Still later the third Porcian law, which Lange[1524] conjecturally assigns to L. Porcius Licinus, consul in the year of the elder Cato’s censorship, 184, seems to have been passed for the benefit of Roman soldiers. We learn from Polybius,[1525] who wrote later than the date last mentioned, that the military tribunes were accustomed in court-martial to condemn common soldiers for neglect of sentinel duty and that the condemned were cudgeled and stoned, often to death, by their fellow-soldiers. He also speaks of the punishment of entire maniples by decimation. Under Scipio Aemilianus, 133, the Roman who neglected duty was flogged with vine stocks, the[252] foreigner with cudgels.[1526] Cicero[1527] intimates that in his own time there was no appeal from the judgment of commanders; and in fact it is impossible to understand how discipline could otherwise be maintained. Evidence to the contrary is scant and uncertain. The person against whom an accusation of desertion was brought before the tribunes of the plebs in 138 seems to have claimed to be a civilian, and on that ground appealed to the tribunes. When proved guilty he was flogged and sold as a slave, probably by a judgment of the military authorities.[1528] In 122 Livius Drusus proposed to exempt Latin soldiers from flogging.[1529] While informing us that in 108 a commander had a right to scourge and put to death a Latin official, Sallust[1530] intimates that he had less authority over a Roman. In the time of the emperors, on the other hand, soldiers were subject to the death penalty as in the time of Polybius.[1531] All these circumstances may be best explained by supposing that the third Porcian law permitted the infliction of flogging and death on Roman soldiers by the judgment only of a court-martial.[1532] This difficult subject is further complicated by the statement of Cicero[1533] that the three Porcian statutes introduced nothing new excepting by way of penalty. Interpreted in the light of other information given by various authors, including Cicero himself, these statutes simply extended the right of appeal by adapting the Valerian principle to new conditions, and substituted exile in[253] place of scourging and death. In the relation between the accused and the civil court the cry “civis Romanus sum” was thereafter a sufficient protection from bodily injury.[1534]

In the period to which the Porcian laws belong falls the accusation of perduellio brought by the tribune P. Rutilius Rufus against the censors C. Claudius and Ti. Sempronius Gracchus, while they were in office, 169. The charge against Gracchus was disregard of the tribunician auxilium, against his colleague the interruption of a concilium plebis (quod contionem ab se avocasset). The accused, foregoing the privilege of their magistracy, consented to a trial, which came before the comitia centuriata. Claudius narrowly escaped condemnation, whereupon the case against Gracchus was dropped.[1535]

The increasing number of special judiciary commissions and the institution of standing courts limited more and more the judicial activity of the centuriate assembly; but the tribunes of the plebs kept alive the feeling of popular sovereignty in this sphere by the occasional prosecution of some notorious offender.[1536] The continuance of the centuriate judicial function is proved by the Cassian plebiscite of 137, which provided for the use of the ballot in all iudicia populi excepting in perduellio,[1537] and by the lex Caelia, 108, which removed the exception.[1538]

The limitation upon popular jurisdiction by the special court is said to have begun as early as 414, when, according to Livy,[1539] a senatus consultum authorized the appointment of a quaestio extraordinaria to discover and punish the murderers of M. Postumius, a tribune of the soldiers with consular power. The plebs, consulted as to the presidency of the court, left it to the consuls. The instance may be an anticipation of later usage. The case of wholesale poisoning by Roman matrons, 331, was investigated, and a hundred and seventy matrons were condemned, by an extraordinary court, which evidently owed its existence to a senatus consultum without the coöperation of[254] the people.[1540] The same is true of the quaestio appointed by the senate under dictatorial presidency in 314 to inquire into charges of conspiracy of the leading men in certain allied states. The dictator extended the inquiry to Rome, and after his resignation the consuls continued the work. Livy’s account of this affair assumes that the senate had full power to appoint such commissions.[1541] It did in fact possess the right without the coöperation of the people to institute quaestiones extraordinariae for the trial of allies or other aliens in crimes which menaced the security of Rome. In the period between the Hortensian legislation and the Gracchi in two recorded instances it dared on its own responsibility to appoint such courts for the trial of citizens.[1542] These were usurpations; for as the laws of appeal forbade the putting to death of a citizen unless condemned by the people, a special court with capital jurisdiction over citizens could not be constitutionally established excepting with the consent of the assembly. This right of the people was considered a legislative equivalent of their judicial power, which the vast expansion of their state made it impossible for them directly to exercise.[1543] The court which tried and condemned the insurgent garrison of Rhegium in 270 was instituted accordingly by a plebiscite authorized by a senatus consultum.[1544] Most probably the court in this case was the senate itself, just as in 210, when the plebiscite of L. Atilius gave it full power to judge and punish the Campanians for revolt.[1545] The appointment of special courts for the detection and punishment of aliens for illegal usurpation of the citizenship,[255] which belonged originally to the senate, began in 177 to be shared by the people.[1546]

Similar in character to the special judiciary commission appointed by the senate, but far more sweeping in effect, was the senatus consultum ultimum (“videant consules, ne quid respublica detrimenti capiat”), which in crises armed the consuls with absolute power of life and death over the citizens.[1547] By these means the senate at its pleasure circumvented the laws of appeal on the plea that the accused had ceased to be citizens.[1548] Against this abuse Ti. Gracchus planned a new law of appeal, which he did not live to see enacted.[1549] His own followers were ruthlessly condemned without the privilege of appeal by an extraordinary quaestio under P. Popillius Laenas, consul in 132.[1550] Probably a similar court was appointed after the revolt of Fregellae.[1551] To put an end to such circumvention of a well-established right of the people, C. Gracchus in his first tribunate, 123, carrying into effect the plan of his brother, passed the often mentioned lex Sempronia de provocatione, which absolutely forbade capital sentence upon a citizen without an order[256] of the people.[1552] The wording indicates that it was intended not to do away with extraordinary courts and powers, but to allow their establishment in no other way than by popular vote.[1553] It reiterated, too, the article of the Porcian statute which absolutely forbade the infliction of the death penalty on civilians.[1554] Far, however, from transferring the jurisdiction of the assembly to the quaestiones, the Sempronian law evidently confirmed the right of the people by enacting that the tribunes might bring the violator of that law before the comitia on a charge of perduellio, for which it mentioned the penalty of interdict from fire and water.[1555] It held responsible not only the magistrate charged with the extraordinary commission, but probably also the senator who moved or supported the measure which called it into being.[1556] The entire Sempronian law was made retroactive, so as to cover the case of Popillius, who thereupon fled into exile to avoid trial. The interdict was accordingly decreed by the tribes on the motion of Gaius.[1557] Rupilius, the colleague of Popillius, seems to have suffered a similar punishment.[1558]

In 120 the tribune Decius prosecuted for perduellio L. Opimius, who, as consul in 121, armed with the senatus consultum ultimum, had caused the death of C. Gracchus. The accused was acquitted.[1559] Ihne[1560] considers this prosecution to have been[257] instigated by the optimates in order to settle once for all and in their favor the question as to the legality of special courts which were called into being by an act of the senate alone. In that case acquittal was a foregone conclusion. In 119 the popular party met with greater success in the prosecution of C. Papirius Carbo, whom it hated as a renegade.[1561] The charge was probably perduellio, though the details are unknown.[1562]

The jurisdiction of the comitia in criminal cases suffered more extensive curtailment from the standing courts,—quaestiones perpetuae,—the first of which was established in 149 for the trial of Roman officials accused of extortion—repetundae—committed in the provinces or in Italy.[1563] As the object of the prosecutors was in the main the recovery of extorted property, the court was essentially civil, and seemed, therefore, to the Romans no infringement of popular rights; yet even before Sulla the principle began to apply to distinctly criminal cases.[1564] Notwithstanding this development several accusations were brought before the centuriate assembly in the period between the Gracchi and Sulla.[1565] The latter increased the number[258] of quaestiones to seven and brought all crimes within their cognizance. The questorian jurisdiction in cases of murder had already passed to the quaestio inter sicarios, established between 149 and 141;[1566] and now Sulla transferred cases of perduellio from the jurisdiction of the tribunes to the quaestio maiestatis.[1567] Although restored to the tribunes in 70, it was for the remainder of the republican period exercised by them on special occasions only, for the quaestio maiestatis still existed. With the establishment of the principate the jurisdiction of the people finally vanished.[1568]

The revolutionary character of the period after Sulla is illustrated by the case of perduellio against C. Rabirius[1569] brought in 63 by a tribune of the plebs, T. Atius Labienus. Rabirius was charged with complicity in the murder of L. Appuleius Saturninus, the famous tribune of the year 100. Labienus proposed and carried a plebiscite requiring the praetor to appoint duumviri for the trial, whereas it was generally held at the time that these officials should have been elected by the people. It was also enacted, in violation of the Porcian and Sempronian laws, that in case of conviction the accused should be crucified on the Campus Martius. C. and L. Caesar, appointed duumviri, brought the case before the comitia centuriata, which were prevented from giving their verdict by the removal of the flag from Janiculum.[1570] The object of the trial was not to[259] punish the guilty, but to discredit the senate, to which the accused belonged.[1571] The decline of the idea of popular sovereignty is further indicated by the agrarian rogation of the tribune P. Servilius Rullus, 63, an article of which, in violation of the lex Valeria Horatia de provocatione, ordered the appointment of decemviri agris adsignandis without appeal.[1572]

The procedure was the same in all finable and capital actions. In a case subject to appeal the magistrate, after a preliminary inquiry (quaestio), summoned the people to contio on the third day[1573] for a thorough examination (anquisitio).[1574] The trumpeter blew his horn before the door of the accused, and cited him to appear at daybreak in the place of assembly.[1575] Acting as accuser, the magistrate addressed the contio and produced his witnesses. Then came the witnesses for the defence, the statement of the accused, and the pleading of his counsel. These proceedings filled three contiones separated from one another by a day’s interval. At the end of the third day’s session the magistrate acquitted the accused or condemned him and fixed the penalty. In case of condemnation, the accused if dissatisfied appealed. The magistrate then put his sentence in the form of a rogation and set a date for the comitia,[1576] which could be held only after an interval of a trinum[260] nundinum,[1577] unless the accused desired an earlier trial.[1578] Some scholars, however, hold the theory that a magistrate, recognizing the limitation of his competence, might bring the case directly to the comitia without the formality of a condemnation and appeal.[1579] The penalty proposed in the rogation was not necessarily the same as at first announced; for the trial might bring to light facts to mitigate or to aggravate the sentence. The presentation of the case to the comitia by the magistrate was termed the fourth accusation.[1580] If anything prevented the voting in the comitia, the accused was discharged,[1581] and could not be legally brought to trial again for the same offence excepting under a different form of action.[1582]

In the belief of the Romans the tribunes of the plebs, originally two, were instituted in 494 as a concession to the seceding commons to win them back to the state.[1583] The historical truth of the first secession need not be discussed here; but there is no good ground for rejecting the view of the ancients either that the tribunate of the plebs owed its existence to a revolution or that it began at as early a date. According to our sources the plebeian tribunes, hence we may infer also the aediles, were for a time elected, and other business affecting the interests of the common people was transacted, in comitia curiata composed potentially of all the citizens.[1584] The change in the form of organization in 471, from curiate to tribal, will be considered below. The president of the comitia which[263] elected the first plebeian tribunes was necessarily a patrician magistrate,[1585] probably the pontifex maximus;[1586] thereafter, with the exception of the comitia for the election of the first plebeian officials after the overthrow of the decemvirs, tribunes of the plebs presided not only for elections but also for judicial business and for the enactment of plebiscites (plebi scita).

The object of the office of tribune was the protection of individual citizens, plebeian and patrician alike,[1587] from oppression; and the means was the auxilium (official aid),[1588] which could be rendered in no other way than by personal contact; hence the law prohibiting a tribune from being absent over night from the city[1589] and requiring him to leave the door of his house open during the night.[1590] In the further interest of the citizens the tribunes had the unrestricted right to call the plebs to a contio and address them at any time and on any subject, to form them when so assembled into voting groups, at first curiae and after 471, tribes, and to take their votes on proposals affecting plebeian interests, plebiscites being from the beginning binding on the plebeian body in so far as they harmonized with the laws of the state.[1591]

These were the two original functions from which the vast powers of the later tribunes gradually developed. As strictly[264] plebeian officials they had no authority to summon patricians, to exclude them from the place of assembly,[1592] or to condemn them judicially.[1593] It follows that their alleged prosecutions of past consuls for maladministration[1594] are fictions[1595]—an anticipation of their jurisdiction at a later age. Directly they possessed no power of judgment or of coercion;[1596] but for the enforcement of the auxilium and of the ius agendi cum plebe their persons were made sacred—sacro sancti—by an oath which the plebs swore at the time they instituted the office,[1597] namely that any one who killed a tribune or aedile of the plebs or did him bodily harm, or who commanded another to inflict harm or death upon him might as a person devoted to Jupiter be killed with impunity, and his property be confiscated.[1598] The avenger was necessarily either a private plebeian or an official of the plebs.[1599] The formal act which rendered the tribunes sacred was termed a lex sacrata. The essence of such a law is (1) that it was sworn to by the community—in this instance by the community[265] of plebs, (2) that the offender against it became a homo sacer and could be put to death with impunity.[1600] This idea of sanctity the plebeians may have derived partly from the Greek asylum;[1601] but it seems also to have been influenced by the condition of ambassadors, hence the later, ill-founded conception of the plebs as a state, and of the plebeian officials and other institutions as based on a treaty ratified with fetial ceremonies between the patrician government and the seceding plebs.[1602] Though termed lex sacrata because it was passed and sworn to in the community, as it were, of the plebs, like any plebiscite of this period the resolution had no legal validity for the state or for the patricians. Under compulsion, however, the government yielded to the demands of the plebeians without formally acknowledging the sanctity of their officials; so that the patricians, by asserting that Roman law did not recognize an inviolability founded purely on religion,[1603] could afterward deny that the tribunes were really sacrosanct. Till the enactment of the Valerian-Horatian laws of 449,[1604] accordingly, the inviolability of[266] the tribunes existed in so far only as the plebeians were in a position to maintain it by holding over their opponents and over the government the threat of violence and revolution. That under the circumstances domestic peace was on the whole preserved should be credited to the orderly character of the great mass of citizens.

Applied to the holding of contiones and comitia, this inviolability protected the presiding tribune from interruption, contradiction, and every disturbance. The principle was afterward extended to verbal abuse anywhere publicly indulged in.[1605] Even if a man showed disrespect by not stepping out of the way of a tribune who was passing along the street, he was liable to the death penalty.[1606] Under normal conditions, however, the rigorous execution of this lex sacrata could not be thought of; in place of outlawing the offender against his person the tribune was ordinarily willing to impose a fine upon him, from which an appeal might be made to the plebeian assembly; or in cases of violence to his person, he might resort to capital prosecution, which was likewise appealable. These principles were formulated in an alleged Icilian plebiscite of the year 492.[1607] From what has just been said it is clear that the tribune’s coercive[1608] and judicial functions resulted, not from usurpation as has often been asserted,[1609] but from a mitigation of the harsh lex sacrata. In a word, the ultimate basis of tribunician authority was the revolutionary power of the plebs, upon which rested the sanctity[267] of the tribunes, and thereon their jurisdiction. Of the judicial activity attributed by the annalists to the plebeian officials in the period before the decemvirs we do not know how much is mythical; but it is safe to say that all the capital cases, probably all the cases without qualification, which they actually settled as judges were submitted to by the patrician government for the sake of peace, without being accepted as legal.

To the third year of the tribunate, 491, is assigned the first mentioned exercise of tribunician jurisdiction. C. Marcius Coriolanus, the accused, had advocated in the senate the abolition of the tribunician office,[1610] and had done personal violence to the aediles, in this way rendering himself liable to the penalty of the lex sacrata on which rested the sanctity of the plebeian officials. Instead of declaring him a homo sacer, a tribune brought him to trial before the tribes, which condemned him by a narrow majority.[1611] The story is now regarded by all scholars as a myth. The vote by tribes at this early time is either exceptional or more likely an anticipation of later usage.[1612]

In accordance with the Icilian plebiscite a capital charge is said to have been brought by a tribune of the plebs against Kaeso Quinctius on the ground that he had repeatedly driven the tribunes from the Forum and had dispersed their assembly.[1613] After providing sureties the accused went into exile,[1614] and the sentence of banishment was passed—in Cicero’s opinion by the comitia centuriata, in Livy’s by the tribal comitia of plebs, 461.[1615] Another case prior to the decemvirate is recorded for the year 455. Representatives of three illustrious patrician families were charged with having disturbed an assembly under tribunician presidency. Their estates were forfeited to Ceres.[1616] Naturally[268] under this arrangement between the plebs and the government there was room for much misunderstanding: the leaders of the plebs stretched their claims to the uttermost; and the patricians, after granting the radical concession, endeavored to recall as much of it as possible. They plausibly urged that while the sacrosanctitas, so far as it existed,[1617] might protect the person of the tribune, it gave him no authority over a patrician;[1618] and their position as the sole holders of political power and the sole repositories of law and usage enabled them before the decemviral legislation by stubborn, skilful perseverance in the details of political warfare almost to throw the tribunician sanctity into oblivion.[1619] Livy tells us that in the assembly appointed for the trial of the past consuls L. Furius and C. Manlius, the accusing tribune failed to appear, and was found murdered in his home; and the historian gives us to understand that the crime was the result of a private conference among the patricians.[1620] Dio Cassius[1621] states that they secretly slew a number of the boldest spirits among the plebeians. Though these stories are mythical, they reflect at least the opinion of the historians that in this early period the sanctity of the tribune counted for little. If it failed to protect his person, it could have given him no great degree of recognized judicial competence. Under these circumstances we should not expect to find the tribunes often bringing the power of their questioned sanctity into actual use in the early years of their existence; but that before the decemvirate they exercised jurisdiction to some extent even in capital cases, which were appealed to the assembly under their presidency, is proved by a law of the Twelve Tables, which, to remedy what the legislators must have considered an abuse, provided that accusations affecting the caput of a citizen should be brought only before the comitiatus maximus—evidently the comitia centuriata.[1622]

[269]

If the tribunes presumed to condemn men to death, they certainly would not hesitate to fine them for lighter offences. For checking the power of the magistrates to levy unlimited fines the consuls of 454, A. Aternius and Sp. Tarpeius, passed through the comitia centuriata a law which set the maximum fine to be levied by a magistrate on an individual in any one day at thirty cattle and two sheep, the minimum being a single sheep. In case he exceeded the former amount, an appeal could be made to the assembly.[1623] In the opinion of Dionysius[1624] this law was interpreted to apply to all magistrates, including those of the plebs, and was made accordingly the basis of the tribunician jurisdiction in finable offences. These consequences seem to have been drawn from the statute, although the proposers may not have so intended it.[1625]

Sufficient evidence has now been offered that before the decemviral legislation the plebeian tribunes exercised, on the basis of their sanctity, a vague jurisdiction in both finable and capital cases, occasionally submitted to by the patrician government though probably not recognized by it as just or constitutional. For the same period their method of agitation by the obstruction of the levy,[1626] by haranguing the people in contiones,[1627] and occasionally by sedition, proves clearly the lack of legislative power through the assembly over which they presided, as well as their lack of veto on the acts of the government. With reference to legislation the course of the discussion in the present and following chapters will make it evident that only by a provision of the Hortensian statute did plebiscites become unconditionally binding on the whole people. Although from the beginning a tribune, as a member of a collegial office,[270] could intercede against the act of a colleague, he had in this period no legal right of the kind against the government; for had he now possessed it, as he did at a later age, he would have felt no need of obstructing the levy—a relatively slow, clumsy method of political warfare. It is to be noticed further that the power of veto of the tribunes, after it had been acquired, rested upon their jurisdiction. If a magistrate persisted in ignoring their prohibition, his act remained valid but he rendered himself liable to tribunician prosecution.[1628] Necessarily, then, as long as the tribunes lacked judicial competence (till the Valerian-Horatian legislation, 449) they lacked the veto against governmental action; as long as their judicial competence depended upon the will of the government (probably till the Hortensian legislation, 287), their veto on the government must have been correspondingly limited. Finally it was not till tribunician obstruction of the levy, sedition, and secession disappear (that is, with the enactment of the Hortensian statute) that we have a right to assume the existence of an unrestricted tribunician veto.[1629] The method of the tribunes in the pre-decemviral period was, by the means above indicated, to force a proposed measure upon the patrician magistrates, and to compel them to bring it before the centuriate assembly in regular form.[1630]

In view of the circumstances that passed bills alone were recorded and hence could be known to posterity, we may reject as unauthentic all the alleged proposals of agrarian laws of this period,[1631] which however may not have been free from agitation of the kind.

A law of the year 471 gave the tribunician assembly a tribal organization. This measure, brought about by the agitation of[271] Publilius Volero, tribune of the plebs of that year,[1632] must, for the reason above mentioned, have been an act of the comitia centuriata.[1633] The motive given by Livy was the desire of the tribunes to free themselves from the influence which the patricians through the votes of their clients exercised on the assembly.[1634] The curiae contained all the citizens,[1635] the tribes none but the landowners. The tribal organization, therefore, excluded not all the clients but those only, together with any other citizens, who were landless.[1636] Probably in other ways the patricians had greater control of the curiate than of the tribal assemblies, although it is impossible to believe with Dionysius[1637] that the essence of the change from the curiate to the tribal comitia consisted in the elimination of auspical influence. That the law forbade the patricians to take part in tribunician assemblies, as Zonaras[1638] imagines, is not probable, for it gave the tribune no new authority over the patricians; he had power neither to summon them to his assembly nor to expel them from it.[1639] In fact we have evidence of the presence of patricians in tribunician assemblies after this date.[1640] The so-called law of Publilius Volero, now under discussion, was confused by the sources with the Publilian law of 339, some of the provisions of the later act being uncritically assigned to the earlier.[1641]

The statute of 471 imparted to the tribunician assembly no new function. Although in mentioning the bill Dionysius[1642] includes a proposal to grant the assembly legislative power,[272] when he comes to speak of the statute as actually passed, he refers only to its provisions for the election of plebeian tribunes and aediles by the tribes, herein agreeing with Livy and other authorities.[1643]

In the same year four tribunes of the plebs were elected for the first time.[1644] The increase was probably effected by an article of the statute under discussion.

Till after the decemviral legislation the comitia tributa,[1645] brought into existence by the statute of 471, was restricted, as had been the tribunician comitia curiata, to the transaction of purely plebeian business. In the records of this period we find a continuance of apocryphal agrarian bills[1646] and condemnations of retired magistrates.[1647] In reality the only political weapon of the tribunes, aside from general agitation, continued to be the obstruction of the levy,[1648] as is proved by their increase in number to ten.[1649] The only agrarian law of the period, the so-called lex Icilia for the division of the Aventine among the people, was passed by the comitia centuriata.[1650] The very circumstance that this mild concession to the plebs was couched[273] in a lex sacrata[1651] shows how little faith the commons had in the government.[1652]

During this period the supreme power was the senate. Shortly after the fall of the kings it provided for the purchase of corn among neighboring states in a time of scarcity, made a state monopoly of salt in the interest of the poor, freed the plebs from port dues and tributum, thereby placing the whole burden of these taxes on the wealthy.[1653] These acts imply legislative as well as administrative competence. Foreign affairs,[1654] including the decision of war and peace, were in its hands. It resolved not to restore the property of the Tarquins,[1655] decreed triumphs to victorious generals,[1656] the celebration of games,[1657] the expulsion of the Volscians from the city in the time of a festival,[1658] controlled the magistrates, including the plebeian tribunate, by means of the dictatorship,[1659] or clothed the consuls with absolute authority.[1660] Little room was left for the activity of the assemblies.

Notwithstanding these unfavorable conditions the tribunes of the plebs through obstruction of the levy and through their harangues in contiones[1661] were chiefly instrumental in bringing about the institution of the decemviri legibus scribundis. Actual votes in tribunician comitia on proposals looking to that end[1662] could have had no more than moral weight. Under popular pressure the consul Sestius, 452, referred the question to the senate,[1663] and the bill for their institution was passed by comitia, doubtless of the centuries. The only valid activity, therefore, of the tribal assembly prior to the decemviral legislation, so far as is known, was the enactment of plebiscites, which lacked the force of law, the election of plebeian officials,[1664] and the quasi-judicial decision[274] of cases appealed to it by those who were accused of violating the tribunician sanctity.[1665]

An epoch was made in the history of the tribunate and of the tribal assembly by the consulship of Valerius and Horatius, 449, who proposed and carried a centuriate law[1666] which gave these institutions a legal basis. The article which logically first claims our attention provided that any one who injured the tribunes of the plebs, the aediles, or the decemviral judges should be devoted to Jupiter, and his property should be forfeit to the temple of Ceres, Liber, and Libera.[1667] According to Livy,[1668] who here represents the tribunician point of view, the original lex sacrata, passed on the Sacred Mount, was first renewed with appropriate ceremonies, thus reëstablishing the religious inviolability of the plebeian officials, whom then the article of the Valerian-Horatian statute here mentioned rendered legally inviolable. The constitutional relation of these two ideas was difficult even for the Romans to determine. Certain jurists, controverting the tribunician interpretation, asserted that this law made no person sacrosanct, but merely threatened with capital punishment any one who injured the officials concerned, clothing them thus in the same kind of inviolability as that which protected the ordinary magistrates.[1669] The object, according to this view, was not only to eliminate from the government the anomaly of a power sanctioned by religion only,[1670] but also to convert the plebeian officials into state officials. The leaders of the plebs gladly accepted the new position tendered them, without being willing however to withdraw from the old. Henceforth we have to deal, accordingly, with a group of legally recognized public functionaries who effectively claimed a religious inviolability hard to reconcile with the constitution, in which they were in time to make for themselves a disproportionate place.

The second article of the Valerian-Horatian statute was to the effect that “whatever the plebs ordered in their tribal assembly[275] should be valid for the people”;[1671] so that henceforth plebiscites, when passed under the conditions hereafter specified, were the equivalent of leges, as they were often so called. It is so similar to a provision of the later Publilian and of the still later Hortensian statute that we should incline to reject it as an anticipation of the one or the other, were it not for the fact that under it important plebi scita, as the Canuleian, the Licinian-Sextian, and the Genucian, were passed.[1672] We must accept it, then, as historical, and adapt our interpretation to the few known facts in the case.

Notwithstanding the use of the word plebs to designate the tribal gathering under tribunician presidency, there is no valid reason for supposing that the Valerian-Horatian law altered its composition—that the patricians were now excluded.[1673] Dionysius[1674] is clearly of the opinion that they participated in this form of comitia both before and after the enactment of the statute under consideration; and Livy[1675] thinks of them as still present in the tribunician meetings as late as the struggle for the Licinian-Sextian laws. The problem must be considered in connection with the development of the voting function of the assembly. Primitively the leaders (nobles) in council decided upon a measure, which they then submitted to the people to be accepted[276] with clamor and din.[1676] Although the acclamation was essentially an act of the masses, nothing forbade the nobles to join in the shouting. Doubtless in the tribal assemblies the expression of opinion within the tribe continued for a time to be by acclamation.[1677] As long as this primitive condition existed, a distinction could not be drawn between the right to be present and the right to join in the decision of questions brought before the comitia. Undoubtedly the custom of voting by heads within the tribe was an imitation of a usage adopted by the comitia centuriata some time after the institution of the latter;[1678] hence we could not reasonably assume its use by the tribes so early as the pre-decemviral period. The question therefore as to whether the patricians, who were certainly present in meetings of the tribes, enjoyed the right of voting in them could not have arisen till after the decemviral legislation. The plebeians had found it impossible by their own powers to exclude from their assembly the landless clients, who were inferior to themselves.[1679] Much less could they exclude the nobles. If the presiding tribune could not prevent their remaining after the people had been formed into voting groups, he could not prevent their voting. As the patricians, equally with the plebeians, belonged to the tribes, the former, being men of superior privilege, could not lawfully be debarred from meetings of their associations; and if they chose to attend, it was not for the tribunes of the plebs to decide as to the law in the matter. The word plebs in the statute is susceptible of an easy explanation. As the comitia curiata and comitia centuriata, under patrician presidents, had from the beginning been termed populus, nothing could be more natural than that from the time an assembly convened under plebeian presidency for plebeian objects, the latter should by way of distinction be termed plebs, even though the few patricians were included. Ordinarily the plebeians must have welcomed patricians to their assemblies, as the presence of magistrates and senators and their sons added dignity and weight to the proceedings. But when the patricians used all their superior influence in both lawful and unlawful ways to block a popular measure, the tribunes, naturally wishing then[277] to exclude them, attempted to establish the principle that tribunician assemblies were exclusively plebeian. This question was settled by the law of Publilius Philo, 339.[1680]

This article of the Valerian-Horatian statute was a concession extorted from the patrician government by the strongest pressure, perhaps by a plebeian secession. The actual advantage which it brought to the plebs was minimized, however, by the provision that the previous consent of the senate was essential to the validity of bills brought before the tribunician assembly.[1681] The patricians could urge in support of this arrangement that as their magistrates according to long established custom always obtained the previous consent of the senate (senatus consultum) to measures brought before any assembly, and were absolutely required to obtain senatorial sanction (patrum auctoritas) for curiate and centuriate laws and elections,[1682] the tribunes, who were free from the trammels of the sanction, should be legally compelled to consult the senate before bringing a measure into their assemblies, especially as their legislation was in a field hitherto monopolized by the patrician magistrates and the senate. Although the tribunes of the plebs would have preferred to understand by the term plebiscite all that it had meant before—the unconditioned resolution of the tribal assembly under their presidency—they must have felt satisfied for the time being with the great gain they had made, however strenuous they afterward became to relieve themselves of senatorial control. This condition on the validity of the plebiscite is not expressly mentioned by Livy in connection with the Valerian-Horatian legislation, but is assumed by the sources for the following period.[1683] The same[278] thing is clearly implied, too, in the long series of political struggles which came after the enactment of the Valerian-Horatian statute.[1684] Had the tribunes been free to legislate without interference on the part of the senate, they would have been in a position easily to complete the social and political equalization of the orders, and by one sweeping reform law to place themselves and their constituents in the condition reached by an almost uninterrupted conflict of a hundred and sixty years (449-287).[1685]

It was in accordance with this regulation that another article of the Valerian-Horatian statute directed the aediles of the plebs to preserve the senatus consulta in the temple of Ceres.[1686] We cannot look upon these officials as keepers of the senatorial[279] archives of that time,[1687] and hence must conclude that the documents in their charge were those decrees which authorized the presentation of tribunician bills, for with those alone the plebeians were directly concerned.

The patricians expected to find a further safeguard in the tribunician veto, which could be directed against a colleague.[1688] From the fact, however, that the tribunes continued to resort to the clumsy method of obstructing the levy, and afterward also of impeding the collection of the tributum,[1689] we must infer that as yet their intercession did not prevail against a patrician magistrate.[1690] Various popular seditions, too, are mentioned for the same period (449-287).[1691] That one which led to the Hortensian legislation is historical, and it is hardly possible that all the others are fictions.

Another conservative check was the application of oblative auspices to the plebeian assembly.[1692] Livy[1693] reports that in 293[280] the tribunes resigned because of a faulty election, held probably in violation of oblativa. In general, however, the plebeian gathering was relatively free from religious control till after the enactment of the Aelian and Fufian laws (about 150).[1694] It had the advantage of the comitia centuriata (1) in freedom from the impetrative auspices, (2) in freedom from the patrum auctoritas, (3) in mobility. Immediately after the adoption of the Valerian-Horatian statute it must have become evident that the tribunician assembly, through the character of its presidency, its composition, and its democratic spirit, was to outstrip the centuriate gathering in energy and aggressiveness, and to be in a word the chief factor of progress in legislation.

No enactment affecting the jurisdiction of tribunes is referred to Valerius and Horatius by the ancient writers; and yet the arrangement by which they thereafter brought their capital actions before the centuries could not have been made without the consent of the government. If, on the other hand, the tribunes now possessed an unconditioned power to subject patricians, whether magistrates or private citizens, to capital prosecutions, they would have found it so effective a means of political warfare as no longer to need obstruction and sedition in their struggle for plebeian rights. In capital cases the permission of a higher magistrate, ordinarily after 367 the praetor, was required; and before the enactment of the Hortensian statute, we may well believe, the tribunes had no means of forcing this permission. Some similar restriction must have been placed on their liberty to bring finable actions.

The comitia tributa under tribunician presidency had at length become an effective constitutional factor in legislation and in jurisdiction. But its action in the former sphere was dependent upon the favor of the senate, in the latter on that of a patrician magistrate. The range, too, of its legislation was restricted by the wide administrative powers of the senate. We shall find it in the following period winning freedom and enlarging the field of its activity.

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]

[284]

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[285] 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[286] 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[287] 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[288] 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[289] 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[290] 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[291] 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][292] 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[293] 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,[294] 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[295] 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,[296] 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[297] 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[298] 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[299] 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[300] 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[301] 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[302] 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[303] 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]

[304]

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[305] 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[306] 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[307] 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[308] 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[309] 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,[310] 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[311] 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][312] 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[313] 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:

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[316] 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.

I. Tribunician Jurisdiction

Whereas the sources assume that the tribunes of the plebs as early at least as the decemviral legislation had cognizance of both finable and capital cases,[1925] an examination of the recorded trials leads to the conclusion that they made little use of this power till the period between the legislation of Publilius Philo (339) and that of Hortensius (287).[1926] Whether their activity after 339 was due to the Publilian enactment of that year[1927] or merely to the gradual evolution of popular rights cannot be determined. However that may be, it was not till after the Hortensian legislation that we find the tribunician jurisdiction at its highest point of development and free from every restriction.[1928]

The capital actions brought by the tribunes before the centuries in the period from Hortensius to the end of the republic have already been reviewed.[1929] We have now to consider the finable cases brought before the comitia tributa in the same period. It is characteristic of the era immediately following the Hortensian legislation, 287-232, described in the following chapter as politically stagnant,[1930] that only one tribunician prosecution is mentioned, and that against the consuls of 249 for contempt of the auspices. Appius Claudius Pulcher, one of the consuls, was fined a hundred and twenty thousand asses, after the action had been transferred from the centuries to the tribes in the way described in an earlier chapter.[1931]

In accord with the spirit of the Flaminian era, 232-201, on the other hand, is the prosecution of the retired consuls, M.[318] Livius Salinator and L. Aemilius Paulus, on the ground that they had unjustly distributed the booty gained in war. Technically the charge seems to have been peculatus;[1932] it was brought before the tribes in 218, doubtless by tribunes of the plebs. Aemilius narrowly escaped condemnation; Livius was fined. The popular feeling against them was extremely bitter.[1933] In 214 M. Atilius Regulus and P. Furius Philus, censors, degraded to the condition of aerarius[1934] L. Caecilius Metellus,[1935] who after the battle of Cannae had tried to persuade the knights to abandon Italy.[1936] He was elected tribune of the plebs for the following year, and made use of his office in an attempt to prosecute the censors before the close of their administration. His purpose was thwarted, however, by the intercession of the remaining nine tribunes,[1937] who in this way saved for a time a conservative principle of the constitution—the inviolability of the magistrate from prosecutions while in office.[1938] The trial of Postumius the publican, beginning in a finable action and ending as perduellio, has been treated elsewhere.[1939] In the same period falls the trial of the tresviri nocturni for appearing too late at a fire. They were accused by the tribunes and condemned by a vote of the tribes.[1940]

[319]

The era of the full-grown plutocracy, 201-134, is characterized by the great number of prosecutions of eminent persons for political objects. M. Porcius Cato was several times brought to trial for the conduct of his consulship, 195, with the result that the speeches delivered in his own defence filled a volume.[1941] In 189 M’. Acilius Glabrio, then candidate for the censorship, was accused of peculatus of booty by two tribunes in a finable action of a hundred thousand asses. The crime was alleged to have been committed in the preceding year, when as proconsul the accused gained over the Aetolians and Antiochus a victory by which he won the right to a triumph.[1942] Cato, formerly his military tribune and now a competitor for the censorship, appearing as a witness, delivered at least four speeches against him. These proceedings forced Acilius to drop the candidacy, whereupon the accusation was withdrawn.[1943] The attack upon this man is to be regarded as a manoeuvre of Cato and his supporters against his political adversaries, the Scipios, who numbered the accused among their friends. In 185 Cato was ready for a direct assault. In that year two of his supporters, both named Q. Petillius, tribunes of the plebs, made in the senate at his instance a demand that L. Scipio Asiagenus[1944] should render an account of the three thousand talents paid him as war indemnity by Antiochus among the conditions of peace. His brother Publius, knowing well that the blow was in reality aimed at himself, resolved to measure his full strength with that of his adversaries. When accordingly the record of the transaction was produced, Publius, complaining that an account of three thousand talents should be demanded of a man who had brought fifteen thousand into the treasury from booty, tore the document in pieces.[1945] In this proceeding he kept strictly within his legal rights.[1946] Nothing further seems to have been accomplished for the present;[1947][320] but M. Naevius, tribune of the plebs, after entering office December 10, 185, brought against Publius Scipio a prosecution, not for peculatus, but for official misconduct. The specific charge was that in return for the restoration of his son from captivity he, as legatus of his brother, had granted too favorable terms of peace to Antiochus. In the first contio the accused recited his services to the state; in the second, which happened to fall on the anniversary of his victory over Hannibal, he invited the people there assembled to go with him to the Capitoline temple to give thanks to Jupiter, Juno, Minerva, and the gods who kept the place, for having endowed him with the will and the ability to achieve that and other similar deeds in behalf of the commonwealth.[1948] Naturally the dissolution of the assembly vexed the tribunes. Before the day came for the third contio he withdrew from Rome. His brother tried to excuse his absence on the plea of sickness, and Ti. Sempronius Gracchus, tribune of the plebs, prevented his colleagues from causing further annoyance to the great man. The general circumstances indicate that the trial was to take place before the tribes, and that the penalty in case of conviction was accordingly to be a fine. His brother was still in danger. Early in 184 C. Minucius Augurinus brought a finable action[1949] against Lucius concerning the money received from Antiochus.[1950] He was condemned by the tribes, whereupon the prosecutor demanded surety (praedes) for the payment of the fine. But when Scipio failed to comply, the tribune attempted to imprison him. Returning suddenly to Rome, Publius appealed to the tribunes in behalf of his brother. Whereas eight members of the college sustained the[321] prosecutor, one of them, Ti. Gracchus, prevented the imprisonment and consequently the collection of the fine.[1951] But the total result of the proceedings was the overthrow of the Scipios, and the conqueror of Hannibal retired heart-broken to his country estate.[1952]

In the same year, 184, M. Porcius Cato, at that time censor, was prosecuted for official misconduct by tribunes in a finable action for two talents, but was in all probability acquitted.[1953] In this period the tribes must have been unusually active in a judicial capacity,[1954] as Cato was himself prosecuted forty-four times, often doubtless before the comitia tributa, but was always given a favorable verdict.[1955]

C. Lucretius, praetor in 171, was accused in the senate by Chalcidian ambassadors of merciless cruelties and robberies perpetrated by him on their community. Thereupon two tribunes of the plebs, M’. Juventius Thalna and Cn. Aufidius, prosecuted him before the people, technically on a charge of furtum and iniuria. He was condemned by all the tribes to a fine of a million asses.[1956] But after 149 most cases of misgovernment in the provinces came before the quaestio repetundarum instituted in that year.[1957] There were occasional prosecutions for beginning war without authorization.[1958] Toward the end of the[322] pre-Gracchan oligarchy C. Laelius Sapiens, the friend of Scipio Aemilianus, seems to have been brought to trial for malversation in his consulship of the year 140, but was probably acquitted.[1959] A peculiar case, yet characteristic of the time, was that against Cn. Tremellius, praetor in 160, for having “contended injuriously” with the supreme pontiff. It is stated merely that he was fined. If the action came before the people, it must have been brought by a tribune, as the pontiff’s jurisdiction was restricted, so far as is known, to the sacerdotes under his supervision. Whatever may have been the procedure, the effect was to place the religious official above the magistrate[1960]—a policy which could be expected of the generation that adopted the Aelian and Fufian laws.[1961]

Several prosecutions in the era extending from the Gracchi to Sulla partake of the revolutionary nature of the time. The inconsistency in the position of Ti. Gracchus, who depended on the sanctity of the tribunate while technically violating it in the person of his colleague Octavius, is illustrated by his attack on T. Annius Luscus. The latter, a man of consular rank, challenged Tiberius in the senate to answer definitely whether or not he had branded with infamy a brother tribune whom the law declared sacred and inviolable. The senators applauded the challenge; but Tiberius, hurrying from the Curia, convoked the plebs, and ordered Annius to come forward and defend himself against the charge of violating by his words the tribunician sanctity. Before the proceedings could begin, Annius by permission asked his accuser: “If you intend to deprive me of my rank and disgrace me, and I appeal to a colleague of yours, and he comes to my support, and you thereupon lose your temper, will you deprive him of his office?” Plutarch, who tells this story, alleges further that Tiberius, not knowing what to reply, dismissed the assembly and withdrew his accusation.[1962] But the fact that Annius made a speech against Tiberius[1963] indicates[323] that the proceedings went farther. Evidently the accused in some way escaped condemnation. The same political significance attaches to the tribunician capital prosecutions of the time, mentioned in an earlier chapter.[1964] No more actions, however, are known to have been brought by the tribunes before the tribes till 103,[1965] when Cn. Domitius Ahenobarbus, a popular tribune of the plebs, author of the famous statute concerning the election of sacerdotes,[1966] prosecuted M. Junius Silanus for misconduct as consul in 109. The charge was that he had begun war on the Cimbri without an order of the people. Notwithstanding the stigma of defeat borne by the accused, he was acquitted by thirty-three of the thirty-five tribes.[1967] In the same year Domitius prosecuted M. Aemilius Scaurus for having as consul neglected the sacra of the di Penates at Lavinium. The accused was acquitted by the votes of thirty-two tribes.[1968] These prosecutions, together with the plebiscite just mentioned, excited against Domitius an antipathy among the optimates which reveals itself in the sources but which his character hardly deserved.[1969]

Another popular tribune, C. Appuleius Decianus, 98, brought against P. Furius the accusation that in the preceding year the latter as tribune of the plebs had betrayed the people’s cause. Acquitted of that charge, he was accused later in the year by C. Canuleius, another tribune, on the ground that he had impeded the return of Metellus.[1970] In one of the contiones for the trial of this case the citizens would not listen to the[324] defence of the accused but tore him in pieces. In the same year Appuleius prosecuted L. Valerius Flaccus, curule aedile, on what charge is unknown. His own condemnation to exile, more probably by the centuries than by a quaestio, on the ground that in his accusation of Furius he lamented the death of Appuleius Saturninus, his gentilis, is mentioned in an earlier chapter.[1971]

Sulla’s completion of the system of standing courts and his restriction of the tribunician function of prosecution[1972] substantially withdrew all judicial power from the tribal assembly under the presidency of tribunes. The overthrow of the Cornelian constitutional arrangements left the standing courts with jurisdiction unimpaired. Though constitutionally the tribunes by this overthrow regained their right to prosecute, they exercised it rarely and feebly during the remainder of the republic. C. Memmius, tribune of the plebs in 66, brought M. Terentius Varro Lucullus to trial for what he had done long before in his quaestorship at the dictation of Sulla. As the motive was evidently personal, the accused was acquitted.[1973] Early in 58 L. Antistius, tribune of the plebs, in the interest of the optimates threatened to prosecute C. Julius Caesar, who had just retired from his consulship and was on the point of setting out for his provinces. Caesar appealed to the other tribunes, who suspended the prosecution on the ground that the accused was to be necessarily absent in the service of the state.[1974] In the year 44 C. Epidius Marullus and L. Caesetius Flavius, tribunes,[325] instituted proceedings against the man who took the lead in acclaiming Caesar king as he was returning from Alba. The evident displeasure of Caesar at the accusation caused its withdrawal.[1975] In incomplete trials, like those last mentioned, it is seldom possible to determine whether they were to come before the centuries or the tribes.[1976]

II. Aedilician Jurisdiction

Before the Hortensian legislation the curule and plebeian aediles alike had cognizance of usury, stuprum, and violation of the law concerning the limitation of occupation and pasturage of the public lands.[1977] In the period now under consideration, beginning in 287, they continued to exercise the same function besides taking upon themselves some new cases. Aedilician actions for violation of the pasturage clause of the Licinian-Sextian statute took place in 240,[1978] 196,[1979] and 193.[1980] Closely related is the fining of usurers in 192,[1981] and of grain dealers for cornering the market in 189.[1982] In 157 C. Furius Chresimus was prosecuted by a curule aedile for injuring the crops of others by magic, and the case came before the tribes in the Forum. By bringing his farm tools into the assembly and calling them his instruments of magic he induced the citizens to vote his acquittal.[1983]

There are several known cases of criminal lust which fell within the aedilician cognizance. In 227 C. Scantinus Capitolinus during his term of office as tribune or aedile of the plebs was prosecuted by M. Claudius Marcellus, curule aedile, on a charge of attempted paederastia. He called attention to the sanctity of his person; but as the tribunes refused to protect him on that ground, he was condemned by the people.[1984] Most[326] of the known cases of this general character were against women. Several matrons, accused of stuprum by the plebeian aediles of 213 and fined by the comitia tributa, retired into exile.[1985] About the time of the war with Hannibal a charge of incest, based on the fact of intermarriage between close relatives and brought doubtless by an aedile, was judged favorably to the accused by the people.[1986] The curule aedile A. Hostilius Mancinus, 183, brought to trial before the tribal assembly Manilia, a courtesan, who, he alleged, had thrown a stone at him in the night and had wounded him. Manilia, appealing to the tribunes, explained that he was attempting violently to break into her house, when she repulsed him with stones. Thereupon the tribunes decreed that the prosecutor deserved the treatment he had received. They interceded against his action, which accordingly had to be dropped.[1987]

One case of perduellio under aedilician jurisdiction is recorded. In 246 Claudia, sister of that P. Claudius Pulcher who lost his fleet off Drepanum,[1988] was jostled by the crowd as she came from the games. She was heard to say on this occasion that she wondered what would have happened to herself, had her brother not caused the death of so many of the citizens, and to wish that he were again living, to lose another fleet together with the crowd that troubled her. For these words she was brought to trial by the aediles of the plebs, and the people imposed on her a fine of 25,000 heavy asses.[1989] The case is described as a iudicium maiestatis apud populum Romanum.[1990]

The jurisdiction of the aediles as well as that of the tribunes[327] suffered from the growth of standing courts.[1991] The fact that the power remained, provided the holder was in a position to use it, is proved by the occasional recurrence of a prosecution in the lifetime of Cicero. First may be mentioned the proceedings instituted by C. Flavius Fimbria, aedile in 86, against Q. Scaevola. Evidently the case did not come to vote.[1992] Interesting is the threat of Cicero[1993] as curule aedile to bring to trial before the people C. Verres and all who should by bribery aid his acquittal. The circumstance that Cicero was ready to place so great a function upon the aedileship is proof of the confusion into which the ideas of popular jurisdiction had fallen through infrequent use.[1994] Another anomaly is the prosecution begun by P. Clodius against T. Annius Milo on the charge of violence (vis).[1995] It took place in the Forum before the comitia tributa, but we do not know whether it came to a vote.

III. Pontifical Jurisdiction

In the exercise of his disciplinary power the supreme pontiff sometimes imposed a fine on a sacerdos under his authority. An appeal to the thirty-five tribes was allowed, if the amount of the penalty reached the appealable limit.[1996] After the analogy of the civil magistrate the pontiff presided over the assembly during the trial.[1997] In 189 Q. Fabius Pictor, who was at the same time praetor and flamen Quirinalis, was forbidden by the supreme pontiff to go to the province assigned him. After much contention the pontiff imposed a fine, and an appeal was[328] taken to the people, who decided that the flamen must obey the pontifex maximus, and on that condition remitted the fine.[1998] In 180 L. Cornelius Dolabella was fined for refusal to resign his office of naval duumvir that he might be inaugurated rex sacrificulus. The case was decided as the preceding, but an unfavorable omen which dissolved the assembly deterred the pontiffs from inaugurating him.[1999] A similar case occurred in 131.[2000] In the appeal of Claudius, an augur, from a pontifical fine, the date of which is unknown, though it probably followed the trials above mentioned, the people sustained the accused.[2001] These are the few recorded cases of appeal from sacerdotal jurisdiction. The moderation of the pontifex maximus, together with the respect of his sacerdotes for religion, usually served to prevent the need of recourse to the people. It is a noteworthy fact that the custom was practically conterminous with the era of the most highly developed plutocracy. The circumstance that in all the cases known to have fallen within this period the people confirmed the authority of the pontiff affords striking evidence of the perfection to which the optimates had now brought the religious machinery of their political system.[2002]

From what has been said on the judicial functions of the comitia in this and earlier chapters, it is clear that the jurisdiction of the people is inseparably connected with the political and constitutional history of Rome. Beginning feebly in the early republic, the right of appeal was most intensely exercised from the middle of the third to the middle of the second century B.C. Its decline thereafter, owing mainly to the rise of the quaestiones, was a symptom of the general decay of the republic.

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[331] 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[332] 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[333] 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[334] 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[335] 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[336] 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[337] 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[338] 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[339] 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[340] 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[341] 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[342] 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[343] 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,[344] 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[345] 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[346] 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[347] 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[348] 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[349] 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[350] 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[351] 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,[352] 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[353] 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[354] 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,[355] 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]

[356]

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[357] 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]

[358]

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[359] 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[360] 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[361] 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[362] 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]

I. The Gracchi
134-122

The work of agrarian reform, after the feeble attempt of Laelius,[2240] was taken up in a more determined spirit by Ti. Sempronius Gracchus, who early in his tribunate, upon which he entered December 10, 134, promulgated his famous lex agraria. It was a repetition, with some modifications and additions, of those articles of the Licinian-Sextian statute which related to the same subject. The last instance of the prosecution of trespassers against the earlier law given in our imperfect records belongs to 193,[2241] and it must still have been in force in 167 when Cato[2242] recited its terms in his “Oration in behalf of the Rhodians.” Probably about the time of Flaminius the agrarian provisions of this statute were renewed with the addition of articles, (a) providing that a specified proportion of free laborers should be employed on public lands held in possession. (b) requiring holders to take an oath to obey the law. (c) increasing the penalty for violations.[2243]

Tiberius had matured his plan before entering office. Assisted[364] by experienced friends, among whom were P. Licinius Crassus, P. Mucius Scaevola, the most eminent jurist of his generation, consul designate for 133, and Appius Claudius Pulcher, his father-in-law, he expressed the articles of his rogation in the most careful terms and with especial regard for vested interests.[2244] Its chief provisions were—

(1) No one shall hold more than five hundred iugera of the public land, excepting that in case the holder has sons he may occupy an additional two hundred and fifty iugera for each of two sons.[2245]

(2) The occupier shall receive compensation for improvements on the lands which the law compels him to surrender.[2246]

(3) The five hundred to one thousand iugera retained by the occupier shall be granted to him by the state in perpetuity and free from all dues.[2247]

(4) The lands thus accruing to the state shall be divided among the needy[2248] in lots, the maximal size of which seems to have been set at thirty iugera,[2249] to be held not as private property but as permanent, heritable leaseholds inalienable and subject to a specified rent.[2250] The Latins and Italians are to be included among the beneficiaries of this provision.[2251]

[365]

(5) Certain specified parts of the public domain shall not be subject to assignment—the same parts which are afterward reserved from assignment by the agrarian law of 111:[2252]

a. Land granted by law or by a senatorial decree to a colony, a municipium, or a Latin town, with the exception of any tracts of such land which this law may expressly order to be sold, assigned, or restored.[2253] Public domain granted by a lex or a senatus consultum can be withdrawn by the same, but the modification of a treaty requires the consent of both parties.[2254]

b. The trientabula—portions of public land granted by the government for a quit rent to its creditors as security for any part of a loan.[2255]

c. The ager compascuus—public land on which a specified group of neighbors have a right to pasture free of charge ten large domestic animals—cattle, horses, mules, and asses—and a fixed number of small animals, unknown to us on account of a lacuna in the inscription but most probably fifty.[2256] As the unit was doubtless the individual, much of the land of this description must have remained undivided.[2257]

d. Public roads.[2258]

e. Other portions of the public domain specifically designated[366] as exempt from distribution, including the Campanian lands, which are leased out by the censors.[2259]

f. Certain pasture lands let out to any who wish to feed their live stock thereon, who pay a tax (scriptura) for the privilege.[2260]

(6) The distribution of the lands shall be effected by a standing magistracy elected annually by the tribes[2261]—the triumviri agris dandis adsignandis.[2262]

(7) As all available public land is to be utilized in the various ways described above, and as the holders of lands once public are to be guaranteed in their possession, further occupation of land is thereby precluded.[2263]

Afterward as Tiberius found it impossible to reconcile the optimates to his measure, he withdrew the second article and proposed to eject illegal holders without compensation.[2264] When the nobles induced Octavius, a colleague in the tribunate, to veto the bill, Tiberius had him deposed by a vote of the tribes, and then passed the agrarian law without further opposition, unauthorized however by the senate.[2265] The triumviri elected to take charge of the work of distribution were the author of the law, his brother Gaius, and his father-in-law Appius Claudius Pulcher.[2266] As the election of these persons was a violation of the Licinian and Aebutian plebiscites,[2267] a dispensation was probably granted by vote of the people.[2268] When the commission found itself hampered by legal inability to distinguish between[367] public and private land, Tiberius carried a second agrarian law which invested the triumviri with the necessary judicial power for determining what land was public and what private.[2269] It was by virtue of this second enactment that the word iudicandis was introduced into the phrase descriptive of their functions—“iudicandis adsignandis” or “dandis adsignandis iudicandis.”[2270] In the year 129, probably at the time of the election to this office, Publius Scipio Aemilianus brought about the transfer of the judicial function to the consuls. Appian,[2271] our sole authority for the latter act, speaks only of its discussion in the senate, implying that this body rather than the people passed the resolution. In that case the senate must have annulled the second agrarian law on the ground that it was illegally passed; for in no other way could it set aside a comitial statute.[2272] Some land, already delimited, may still have been subject to distribution; but as the consuls avoided the disagreeable function received from the commissioners, the work of assignment came speedily to an end. The agrarian law of Ti. Gracchus fell thus into disuse till it was revived by his brother.[2273]

The deposition of Octavius[2274] requires especial consideration. In 136 the proconsular imperium had been abrogated, probably by a popular vote[2275]; but no instance of the abrogation of an actual magistracy had thus far occurred. Most scholars consider the act unconstitutional.[2276] It did indeed involve a sweeping departure from long-established custom; but in favor of its[368] legality may be urged the fact that nearly all the powers ever possessed by the assembly are known to have been acquired in the way in which Tiberius was attempting to establish for it the right to remove from office—by precedent rather than by law. A statute of the Twelve Tables declared that whatever the people voted last should be law and valid[2277]; and through the ages preceding the Gracchi they had often applied this principle to the extension of their power at the expense of the senate and magistrates. They were sovereign; and if they chose to introduce the custom of deposing a magistrate whom they regarded as the betrayer of their dearest interests, they had the legal right. The wisdom of the proceeding may be questioned, but he who has followed the history of the assemblies thus far must regard the measure as merely one of the many steps by which the people advanced toward the realization of their sovereignty.

Tiberius attempted to apply the same principle to securing his election to the tribunate. His motive was not a purely selfish desire to save his life; it required no superhuman wisdom to discover that his downfall would mean the collapse of the great reform on which he had set his heart. The continued ascendancy of a popular champion necessarily involved the overthrow of the senatorial government. This idea, which he now clearly grasped, found expression in his new political platform, (1) to shorten the period of military service, (2) by means of a law of appeal to vest the supreme jurisdiction solely in the people, so as to deprive the senate of its extra-constitutional judicial power,[2278] (3) to give the equites equal representation with the senators in the juries, or possibly as Dio Cassius states, to transfer the courts from the senate to the knights.[2279] When the day of election came, his peasant supporters were busy with their harvests, and his platform did not strongly appeal to the city plebs, on whom he had chiefly to rely for votes. Had the people insisted, as they twice did in favor of Scipio,[2280] they would have prevailed either with or without an act of dispensation[369] passed by the senate or by themselves[2281]; but the weakness of his supporters rather than any illegality in the proceeding proved his ruin. To free the future reformer from this limitation, however, a rogation of C. Papirius Carbo, tribune of the plebs in 131, proposed that a tribune should be eligible to reëlection as many times as he chose to offer himself as a candidate. This rogation failed[2282]; but before the tribunate of C. Gracchus, 123, “a certain law had already been enacted,” as Appian[2283] obscurely informs us, “that if a tribune should be wanting on the announcement (of the votes), the people might elect one from the whole body of citizens.” The statute, which Appian has evidently failed to understand clearly, seems to have provided that if the returns showed the election of only nine tribunes from the candidates proposed, the people could proceed to elect a tenth from the whole body of citizens, including the existing tribunician college; or equivalently, if for the tenth place the tribes cast a majority of votes for one who was not a candidate, he would be considered legally elected.[2284] The object was to enable the people to continue in office an especially popular tribune, and was therefore a notable stride in the direction of monarchy.

Papirius was more successful with his lex tabellaria, which extended the ballot to legislation, 131.[2285] Trials of perduellio alone retained the oral vote. Doubtless this improvement greatly strengthened the rising popular party. A plebiscite[370] passed about 129, requiring a knight on entering the senate to sell his public horse, deprived the senators of their votes in the eighteen centuries, and completed the separation of the governing aristocracy from the commercial class begun by the Claudian statute of 219.[2286]

At some unknown time before the tribunate of C. Gracchus a plebiscite of M. Junius modified the lex Calpurnia concerning extortion,[2287] in what way we are not informed. The act is with a high degree of probability attributed to M. Junius Pennus, tribune of the plebs in 126.[2288] If the Junian lex repetundarum was indeed his work, it could have been dictated by no sympathy with the unprivileged classes, for it was this Junius whose plebiscite ordered the expulsion of all aliens from Rome—a measure which Cicero condemns as inhuman.[2289] The act last mentioned was the response of the senate and rabble to the effort of the more enlightened Romans to grant the citizenship to the Latins and Italians. The new idea was embodied in a rogation of M. Fulvius Flaccus, consul in 125, which offered the citizenship, or as an alternative the right of appeal, to the Italians, with the purpose of buying off their opposition to the Sempronian agrarian law; but the measure was so vehemently opposed in the senate that the author withdrew it.[2290] The idea however lived in the minds of the reformers till it was finally realized.

Ten years after the tribunate of Ti. Gracchus his brother Gaius entered upon the same office. Since the beginning of the decennium the leaders of the popular party had made various[371] proposals but had accomplished little. The agrarian law was still nominally in force, though its execution was effectually blocked. The plan of extending the franchise had found its most bitter opponents in the men of the street, on whom the tribunes had chiefly to depend. The ballot in legislation, the possibility of continuous reëlection to the tribunate, and the increase of discontent with the plutocracy were the only gains. Extraordinary progress was now to be made under the leadership of a great creative statesman. The chronological succession of his comitial enactments cannot be determined with absolute certainty. We do not in every instance know whether a given proposal was carried in his first or second year. This much, however, is clear, that most of his measures belong to 123 and to the early part of 122. The execution of the laws, including the seventy days’ journey to Carthage,[2291] consumed much of the second year, and after his defeat for the third term—about July, 122—he carried no more plebiscites.[2292] Among his first thoughts was that of strengthening the legality of the deposition of Octavius[2293] by a rogation which provided that a person so deposed should thereby be debarred forever from office. He probably meant it more as an enunciation of a principle than as a legislative project. The measure was never offered to vote, but was withdrawn, we are told, at the request of his mother.[2294] Far more serious, and of lasting importance, was his lex de provocatione, which, carrying into effect the idea of his brother,[2295] forbade the establishment of a special court or the placing of the state under martial law without an act of the people.[2296] Further judicial legislation was postponed in the interest of more pressing matters.

[372]

While colonization and the assignment of land individually to citizens, which Gaius planned on an extensive scale, as will soon be noticed, were to provide for the agricultural population at the expense of the state, and while the nobles and knights continued to reap an unfailing harvest of wealth in the administration of the provinces, the democratic reformer could think it only just and expedient to subsidize the populace of the capital. The artificial growth of Rome as a political centre, with no sound economic basis but with a most unfavorable geographical situation, rendered the problem of living difficult for the masses even in time of prosperity; and recently circumstances had so diminished the grain supply that relief from the government seemed the only resource against threatening famine.[2297] Before the time of the Gracchi on occasions of especial scarcity or of especial plenty the state had sold grain at a reduced rate; and the aediles, we know not how often, had made similar reductions at their own expense.[2298] There can be no doubt, too, that individual nobles in a private capacity often distributed free or cheap grain among the poor to secure their support in elections. Attached by such means to the nobles and the senate, the rabble had been in the main conservative. There was a certain degree of justice in giving the populace a share in the profits of empire and some wisdom in substituting system for the existing irregularity. A political result, we may also say aim, of the frumentarian plebiscite of Gaius was to disattach the city populace from its conservative moorings and to enlist it in the service of reform. His measure, the first frumentarian law in Roman history, provided for the monthly sale to every citizen who applied for it—practically to those only who resided in or near Rome—of a fixed number of modii of wheat at six and a third asses a modius,[2299] which was probably about half the average market price. The law won for him the good will of the populace,[2300] but his opponents complained that it depleted the treasury and excited the[373] mob to seditions.[2301] It set an example for further reductions at the expense of the state. Hence notwithstanding some good features the effect of the law was pernicious, as it tended to increase the number of idlers, to make the populace improvident, and to encourage demagogism. It must be said, on the other hand, that had Gaius lived to carry out his wide scheme of colonization, he would have so relieved the capital of its semi-pauper population as to render frumentations unnecessary, whereupon the law would naturally have been repealed.[2302]

After providing in the frumentarian act an expedient which, we may believe, he looked upon as temporary, he resumed the work of construction[2303] by reviving his brother’s agrarian law.[2304] The continuance of the assignations as long as there remained any public land that could be distributed was a most essential element of his plan. Among the articles retained were those which subjected the holders of assigned lots to a tax[2305] and exempted from distribution the Campanian territory not set apart for his colony at Capua,[2306] as well as various other lands excepted both by the agrarian law of Tiberius and by that of 111.[2307] Doubtless it also reinvested the three commissioners with judicial power, without which they could accomplish nothing. Through this agrarian law, or possibly through a subsequent lex viaria, the triumviri were empowered to build roads for the accommodation of the new peasantry.[2308] Though introducing no new principle,[2309] his lex agraria was not a simple reaffirmation of his brother’s law with amendments and additions; but “a comprehensive statute, so completely covering the ground of the earlier Sempronian law that later legislation cites the law of Gaius, not[374] that of Tiberius Gracchus, as the authority for the regulations which had revolutionized the tenure of the public land.”[2310]

These measures were passed before the tribunician elections of the year,[2311] which took place as usual in midsummer.[2312] It was his frumentarian law, together with the hope aroused by the long array of promulgated measures, which secured his reëlection. Soon afterward, though still in 123, he brought before the comitia a rogation concerning the qualification of iudices. As the quaestiones extraordinariae from the earliest times were made up of senators, it was natural that the standing courts also from the time of their institution should be similarly composed.[2313] Under such conditions the judicial authority afforded no efficient check upon maladministration; and this immunity from the law, together with the temptations to the misuse of power especially in provincial commands, tended in the course of generations to make of the senate, with individual exceptions, a class of grand criminals. To remedy this evil and at the same time to remove from the senate the strongest foundation of its political power,[2314] Ti. Sempronius Gracchus had proposed his rogatio iudiciaria either for transferring the courts entirely to the knights, or more probably for making up the juries of an equal number of senators and knights.[2315] It failed to become a law; but Gaius now took up the matter, and after experimenting unsuccessfully with one or two projects,[2316] he finally, 122, carried a[375] plebiscite which substituted knights for senators in the alba iudicum,[2317] from which not only standing courts but also special commissions were to be filled.[2318] It is uncertain whether mention was made of equites or whether the result was reached merely by exclusion and definition. There can be no doubt that the qualifications were identical with those described in the extant lex repetundarum,[2319] attributed by scholars to M’. Acilius Glabrio, a colleague of Gaius, and adopted accordingly soon after the Sempronian judiciary law. The terms of the Acilian statute excluded tribunes of the plebs, quaestors, tresviri capitales, military tribunes of the first four legions, tresviri for assigning lands, persons who had fought in the arena for pay or had been condemned by a quaestio or by the people. It excluded further all under thirty or over sixty years of age, and all who had their domicile more than a mile from Rome, the fathers, brothers, and sons of those who held the offices above enumerated, senators, and their fathers, brothers and sons, as well as persons living beyond the sea. A part of the statute missing from the inscription may have contained a minimal property qualification, which could have been no other than four hundred thousand sesterces; or it may have restricted jury service to those who “possess a public horse.”[2320] According to Plutarch Gaius was allowed the privilege of selecting the jurors. Had he remained in power and continued in this function, he doubtless could have[376] compelled the courts of his choosing to do justice. But the privilege seems to have been restricted to the first list; thereafter, as provided by the lex repetundarum of Acilius the praetor qui inter peregrinos ius dicit was to attend to the matter.[2321] The relation between the Sempronian lex iudiciaria and the lex Acilia repetundarum has not been precisely determined.[2322] If the Sempronian statute preceded the Acilian,[2323] as is not unlikely, it was the intention of Gaius to pass a general law regarding the qualifications and mode of appointment of jurors, to be superseded in large part by a succession of laws, which dealing with individual courts, should regulate the qualification and appointment of their several juries as well as the procedure and the penalties. This policy indicates a conviction that he could give the reformed judicial system greater stability by making the separate laws here referred to entirely independent of his original lex iudiciaria.[2324]

The lex Acilia, described above as a plebiscite of M’. Acilius Glabrio, colleague of C. Gracchus in 122,[2325] took the place of the lex Iunia of 126,[2326] and is to be identified with a lex repetundarum extensive fragments of which are preserved in an inscription.[2327] Whereas earlier laws on the subject rendered governors of provinces, and perhaps administrative officers in[377] Italy, alone liable to punishment, the Acilian statute includes magistrates and senators and the sons of both as well as the holders of promagisterial imperium.[2328] The crime consists in taking in any one year from those whom the law is designed to protect—from the allies, Latins, provincials, and exterior nations under the sway or in the friendship of the Roman people[2329]—by gift, seizure, compulsion, or other illegal means money or property exceeding a specified sum, which a lacuna in the inscription leaves unknown, but which is supposed to be four thousand sesterces.[2330] Holders of magistracies and imperia cannot be brought to trial for the crime till after the expiration of their terms,[2331] on the general principle which exempts from prosecution those who are engaged in the service of the state.[2332] The praetor qui inter peregrinos ius dicit within ten days after the passage of the statute, and in future within ten days after entering upon his office, is to choose for this court four hundred and fifty persons with the qualifications for jury service described above in connection with the Sempronian judiciary law. From this group the accused is to reject under oath his kinsmen within a specified degree and his sodales. The accuser is to draw from the remainder a hundred persons, taking oath that he has chosen no kinsman within a specified degree or sodalis. The accused rejects fifty of the hundred, and the remaining fifty constitute the jury for trying the case.[2333] The rules of procedure in the trial and the amount of[378] liability of the accused in the event of conviction are given. The accuser, if an alien, is granted as a reward for a successful prosecution the Roman citizenship for himself and his born sons and grandsons. If he is a Latin and does not want the citizenship, he is given instead the right of appeal.[2334] Probably the law contained provisions for the punishment of corruption in the patrons of the accusers and in the praetor and jurors.[2335]

It is certain that Gaius carried a law also for reconstituting the quaestio inter sicarios et veneficos,[2336] which had originally been established shortly before 141.[2337] The Sempronian law on this subject contained a provision for the punishment of bribery or conspiracy committed in trials of the kind. The article referred to included the words “Ne quis iudicio circumveniretur,”[2338] a principle repeated as “Qui coisset, quo quis condemnaretur”[2339] in the corresponding article of the Cornelian law which superseded the Sempronian. There was no quaestio for dealing especially with judicial corruption and conspiracy, but the accused was brought to trial before the very court in relation to which his crime was alleged to have been committed.[2340] The provision was directed against the accuser, against magistrates and senators who presided over such courts, and presumably against equestrian jurors who accepted bribes.[2341]

[379]

We have in an inscription the concluding articles of a criminal law[2342] of this period. It is on a bronze tablet found on the site of the ancient Italian city Bantia, and is called the Latin Lex Bantina to distinguish it from another lex in Oscan on the opposite face.[2343] A reference to the triumviri agris dandis adsignandis, who seem to have been those elected under the Sempronian agrarian law, places the document between 133 and 118. It is concerned with a quaestio.[2344] An attempt has been made to identify it with the lex Iunia repetundarum and to assign it accordingly to 126.[2345] The circumstance, however, that it was passed without the authorization of the senate, and that its whole spirit is anti-senatorial, would lead us rather to the conclusion that it was the work of C. Gracchus at the time of his most bitter struggle with the optimates yet before he had lost control of the comitia. The fragment contains no more than the sanctio—provisions for enforcement of the statute. The beginning of the first extant article is lost, but it must have described the class of offenders to which the article applies, and the nature of the offence. It speaks merely of disabilities imposed on the offender, among which are the following: he must not address the senate or vote in a public trial (poplico ioudicio) or in comitia or receive or give testimony in court or wear the praetexta and soleae in public or be chosen into the senate or remain in it if already a member. The second article provides that if a tribune of the plebs, a quaestor, a triumvir capitalis, a triumvir for assigning[380] lands, or a index appointed under the law itself, or a senator shall with knowledge and malice prepense violate the law or hinder its operation, he shall be liable to a fine, the amount of which a lacuna in the text leaves unknown. The third article provides that a consul, praetor, aedile, tribune of the plebs, quaestor, triumvir capitalis, or triumvir for the assignment of lands now in office shall, within the next five days after ascertaining that the law has been enacted, swear in the manner described below: also that the dictator, consul, praetor, master of horse, censor, aedile, and other officials as above enumerated, and the index appointed under this law shall in future take the oath within five days after entering upon their magistracies or imperia. They shall give oath to the urban quaestor publicly in front of the temple of Castor, swearing by Jupiter and the di Penates that they will do as the law requires and will not with knowledge and malice prepense violate the law or by intercession or otherwise hinder its administration. He who fails to swear shall not be candidate for a magistracy or imperium, or manage or retain either, or address the senate or be chosen into it; and the quaestor shall keep a list of those who have taken the oath. The fourth article provides that whoever is or shall be a senator, or shall have the right of addressing the senate after this law has been passed, shall within the next ten days after ascertaining the fact of its enactment take an oath like that described in article 3. The penalty for failure to swear is not mentioned in the extant fragment, but must at the mildest have been expulsion from the senate.

Closely connected with the transfer of the iudicia from the senators to the knights is the statute of Gaius concerning the taxation of Asia. It ordered the censors to let out the taxes of this province to the highest bidders; and it limited the right of the senate to lessen the sum agreed upon.[2346] Under such an arrangement, however, no sufficient guarantee could be provided for the security of the provincials from publican[381] exactions.[2347] The political result of this legislation in favor of the knights was to invest them not only with an important share in the administration, but through the courts with a superiority even over the senate.[2348] The opposition of the poorer class to the aristocracy could never be otherwise than uncertain and fitful; but the knights with their immense wealth and their efficient organization were to be henceforth an ever present rival of the senate. The author of the law had given the state a double head,[2349] which was to prove the source of civil discord; or nearly in his own words, he had thrust into the body of the senate a sword which nothing could withdraw.[2350] For a few months their benefactor may have cherished the delusion that he could depend upon their grateful support; he lived to discover that they cared not for him or his reforms but only for their immediate interests. In his work of construction the statesman found them slightly more serviceable than the proletariate.

The right which the senate had hitherto possessed of assigning the provinces to the magistrates and promagistrates according to its pleasure gave a great opportunity for favoritism and partisanship; it could thwart the will of the people by assigning a popular consul to an insignificant province. To deprive the senate of a power which could be so easily perverted to wrong use, C. Gracchus proposed and carried an act which ordered the senate before the election to name the provinces that were to be consular.[2351] An article forbade tribunician intercession[382] against such action of the senate.[2352] Far from improving the administration, however, this statute tended to foster that routine which was one of the most marked defects of oligarchic rule.[2353]

As under the government of the nobility military affairs were in the hands of the magistrates and senate, this field was closed to comitial legislation.[2354] One of the most notable indications of growing democracy was the project of Ti. Gracchus, 133, for shortening the period of service. It was not brought to vote;[2355] but his brother Gaius succeeded in passing a plebiscite, 123, which ordered that the state should bear the cost of clothing soldiers, and forbade the enlistment of boys before the close of their seventeenth year.[2356] The pay of the soldiers, which since the war with Hannibal had remained five and a third asses a day, had under new conditions become wholly inadequate; and certainly insistence on the legal age limitation was prudent as well as humane. There is no ground, then, for imagining with Diodorus[2357] that in this salutary measure Gaius was catering for the support of the soldiers by inciting them to disobedience and lawlessness.

His greatest constructive work he aimed to achieve through colonization and through the extension of the franchise. His colonial law, 123, proposed to establish many settlements in Italy,[2358] two of which at least should be made up of men of the best character, not the neediest but traders and workmen of moderate means.[2359] The two actually founded were Scolacium and Neptunia,[2360] both in situations favorable for commerce.[383] Several other settlements in Italy are attributed to his colonial or agrarian statute.[2361] As his colonies were exclusively citizen,[2362] if any aliens took part, they must by virtue of the colonial law have obtained the Roman rights. The statute of his colleague Rubrius the same year (123) provided for the founding of Junonia on the site of Carthage.[2363] But the most liberal and statesmanlike measure was reserved for his second tribunate, 122. It was a proposal to grant full citizenship to the Latins and the ius Latii to the remaining allies.[2364] The rejection of the bill by a popular vote proved the leader far too liberal and too progressive for his supporters. Deceived by the spurious proposals of M. Livius Drusus,[2365] a colleague of Gaius, for the founding of twelve colonies, the members of which were to hold their lots by fee simple and consequently exempt from rents, and for depriving the Roman magistrates of the right to inflict corporal punishment on Latins even when in military service under their commands,[2366] the populace, readily accepting the new[384] proposals,[2367] turned against their true champion, and defeated him in the election for the tribunate for the ensuing year.[2368] It was probably the same measure of Gaius for extending the citizenship which alienated from him the equites, who in every crisis pursued their own selfish ends.[2369] In the ensuing struggle between the senate and Gaius they took the side of the former.[2370]

In the tribunate of Gaius Gracchus the life of the comitia reached the highest point of intensity. The two years of his administration afford evidence of what the assembly could accomplish when directed by the personality of a great statesman.[2371] The sum total of the measures adopted should be estimated not as a completed work, but as a foundation to be strengthened at defective points and to be built upon till the whole structure of the state and empire should be reconstituted and freshly vitalized.[385] These results might have been achieved, had Gaius lived out his natural life and retained the support of the populace and the knights.[2372] His failure proved the comitia a weak, unsafe instrument for constructive statesmanship.

II. The Aristocratic Reaction and the Popular Recovery
122-103

The optimates waited only for the expiration of the tribunate of Gaius Gracchus to begin undoing his work, and they found the comitia ready to aid in the demolition. In 121 a plebiscite of M. Minucius Rufus repealed the Rubrian law for the colonization of Junonia (Carthage).[2373] Soon afterward, certainly not later than 118, a plebiscite, whose author is unknown, permitted the beneficiaries of the Sempronian agrarian laws to sell the lots they had received.[2374] This enactment was followed in 118 by a plebiscite which Appian[2375] assigns to Spurius Borius (?), a name not otherwise known.[2376] It put an end to the distributions, and must therefore have abolished the agrarian triumvirate. The same law confirmed all holders of the ager publicus in their possession, without converting any of this land into private property, and it continued the imposition of rents. We may assume that the lands here referred to included those recently distributed in small lots as well as those retained by the occupiers. Lastly it enacted that the revenues accruing from[386] the rents should be used for distributions—probably of cheap grain.[2377] In 111 another tribune, whom Cicero[2378] names Sp. Thorius, through a law which has partially survived in an inscription, aimed to settle definitely and for all time in the interest of the nobles the questions raised by the Sempronian agrarian legislation.

I. This epigraphic lex agraria converts into private property the following classes of lands.[2379]

(1) Land assigned to a colony or in any way made public, and afterward restored to the original owners (domneis). It is to be private optuma lege.[2380]

(2) Land assigned to a colony and afterward restored to its former occupier (veteri possessori).[2381]

(3) Land within the legal limit (of five hundred iugera) left to the occupier by the three commissioners.[2382]

(4) Land assigned after 133 to colonies of Roman citizens.[2383]

(5) Land given and assigned by the three commissioners after 133.[2384]

(6) Land which has been occupied after 133 (not assigned by the commissioners) to the extent of not more than thirty iugera to the occupier.[2385]

[387]

(7) Land which by the provision of this law is to be sold, granted, or restored.[2386]

All the lands above enumerated are declared private and free from vectigal and scriptura.[2387]

II. The lands which the law declares public are those reserved from distribution by the law of Ti. Gracchus.[2388] It retains further as public all lands along public roads which have been granted by the commissioners on condition that the recipients (viasieis vicaneis) in return for the use of the land undertake the duty of keeping the roads in repair. Though heritable and alienable, they remain subject to the burden here described.[2389]

III. In the regulation of the agrarian conditions of Africa the statute deals with three kinds of land, (1) private ex iure quiritium,[2390] (2) private ex iure peregrino,[2391] (3) public domain of the Roman people of various sub-classes.[2392] Lastly the statute aims to settle the status of the lands of Corinth.[2393] As regards the Latins and aliens, whatever has already been permitted them by treaty or law is allowed them by this statute, provided the same thing is allowed a Roman citizen; but it is forbidden them if forbidden a citizen. Rights granted the citizens which up to this time are not enjoyed by aliens are not by this law communicated to aliens.[2394]

Through this series of reactionary laws, from the Minucian (121) to the Thorian (111), the optimates succeeded in nullifying the good results of the Sempronian agrarian reforms. It was while the Minucian rogation[2395] was under discussion that the senate took advantage of a disturbance in the concilium to arm the consul Opimius with absolute power for putting down[388] C. Gracchus and his followers.[2396] The failure of an attempt in the following year (120) to call Opimius to account for these proceedings established the right of the senate to the appointment of special commissions and to the decretum ultimum[2397]—a right on which the optimates continued to insist to the end of the republic. Through the plebiscite of L. Calpurnius Bestia (also 120)[2398] they put the stamp of legitimacy upon the murder of the followers of Ti. Gracchus by recalling from exile P. Popillius Laenas, who as consul in 132 and head of a special court was chiefly responsible for that judicial crime.[2399] An attempt was made by Q. Servilius Caepio, consul in 106, to restore the courts to the senate,[2400] or possibly to compromise by providing for an album composed of both senators and equites.[2401] The sources imply that the measure was accepted by the comitia; but if so, it must have been immediately annulled, as it was not carried into effect.[2402] Within this period of reaction, and perhaps as a part of it, falls the lex de libertinorum suffragiis of the consul M. Aemilius Scaurus, 115. Although nothing certain is known of it, we may suppose that it attempted again[2403] to restrict the libertini to the four city tribes.[2404] About this time, too,[389] several acts seem to have been passed for diminishing the pay of soldiers, probably undoing the Sempronian law on the subject.[2405]

A glance at these reactionary measures alone would leave the impression that the senate was recovering its entire supremacy. This result might have been reached had it not been on the one hand for the lasting inspiration of the Gracchan spirit in the plebs and their leaders, and on the other the new position of the equites. In 119 C. Marius, at once a representative of the knights[2406] and of the peasants, opposed as tribune of the plebs the senatorial aristocracy, which now had to depend for immediate support upon the populace.[2407] The optimates had greatly impaired the value of the secret ballot through the custodes tabellarum, who stood on the pontes as well as by the boxes (cistae) to keep watch over the voting. They were often influential men[2408]—in elections selected by the candidates[2409]—who used their influence with the voters, especially of the principium or of the prerogative century,[2410] thereby maintaining for the aristocrats a high degree of control over the comitia in spite of the ballot laws.[2411] For this reason C. Marius when tribune of the plebs carried an act for making the pontes narrower that there might be room on them for the voters only.[2412] The politicians, however, soon found means of circumventing[390] this law as well as the use of the ballot.[2413] The populares could expect little therefore from the plebiscite of C. Caelius, 107, which by extending the ballot to trials of perduellio, completed the abolition of oral voting in the comitia.[2414]

We find another sign of popular recovery in the assembly’s resumption of the appointment of special judiciary commissions.[2415] One of the most remarkable courts of the kind was that created in 113 for the trial of three Vestal virgins on a charge of incest. The pontifex maximus, who possessed absolute authority over the Vestals, had already pronounced judgment, condemning one and acquitting the other two, when a plebiscite of Sex. Peducaeus, taking the case out of his hands, transferred it to a quaestio extraordinaria.[2416] To such an extent did the tribune apply the theory of popular sovereignty.[2417] The plebiscite of C. Mamilius, 109, ordered the appointment of a court for the detection and punishment of those who had accepted money from Jugurtha for aid rendered him against the decrees of the senate and the interests of Rome. As it was a blow aimed at the nobility, the people in the hatred they then cherished against the governing class voted it with great spirit.[2418] In 105 the tribal comitia abrogated the proconsular imperium of Q. Servilius Caepio,[2419] and in the following year, they not only appointed a special court to try him for embezzlement of the gold found at Tolosa,[2420] but through the plebiscite of L. Cassius Longinus, they disqualified for membership of the senate any[391] person whom the people had judicially condemned or whose imperium they had abrogated.[2421] These acts confirmed and applied the principles underlying the deposition of Octavius and the rogation of C. Gracchus concerning persons deposed from office (abacti). In theory the people indirectly chose the senators through their function of electing magistrates; and they were only claiming this right when they insisted that he should be prohibited from membership whom they had condemned in either of the two ways described by the statute. It must have seemed to the people, on the other hand, that the tribunes, who were once more their true representatives, had as good a right as any other magistrates to seats in the senate. This feeling found expression in the Atinian plebiscite, enacted between 122 and 102,[2422] which gave the tribunes the ius sententiae dicendae in the senate with the same right to censorial enrolment as that enjoyed by the curule magistrates.[2423]

The growing strength of the people and at the same time the increasing dependence of the optimates on religion for the control of politics are indicated by a law of 103 concerning the election of sacerdotes. More than a hundred years earlier[2424] was instituted the custom of electing the supreme pontiff and the chief curio in comitia of seventeen tribes designated by lot. Toward the end of the plutocratic régime C. Licinius Crassus in the interest of the people attempted in vain to pass a law for extending the principle to all the members of the more important sacerdotal colleges.[2425] The proposal was defeated by the eloquence of C. Laelius,[2426] but at length it was passed as the lex de sacerdotiis of Cn. Domitius, tribune of the plebs in 103. The statute affected the pontifical and augural colleges, the decemviri sacris faciundis, and the epulones.[2427] According to the[392] new arrangement when a place became vacant in any one of these colleges, the members of the college drew up a list of eligible candidates from whom the comitia sacerdotum, composed as above described, made a choice.[2428] In spite of this law religion remained a political tool of the optimates.

Meantime the popular party succeeded in enacting economic laws. A Porcian statute concerning interest, which may well have aimed to benefit the poor, seems to be the work of M. Porcius Cato, consul in 118. The author had to defend the act against several attempts to repeal it.[2429] In 109 under the stress of the Cimbric war the consul M. Junius Silanus passed an act for repealing several earlier laws which had diminished the pay of soldiers. We may reasonably believe that it restored the Sempronian law on the subject.[2430] His immediate object was to encourage enlistments.[2431] An agrarian rogation was offered by L. Marcius Philipus, tribune of the plebs in 104. As the author was at heart a democrat, his measure was doubtless inspired with the spirit of the Gracchi. Perhaps it aimed to restore their law; but lacking determination, the proposer readily allowed it to be voted down.[2432] The monetary lex Clodia, which probably belongs to the same year, has no political significance.[2433]

III. The Appuleian Legislation and the Rule of the Moderate Optimates
103-88

Through the legislative acts above described we can trace the speedy restoration of the democracy and of comitial legislative[393] power after the overthrow of C. Sempronius Gracchus. We are now approaching a second crisis in which the aristocracy had to struggle for existence. Against it was formed a combination of three powerful men, C. Marius, supported by the knights and the municipes,[2434] C. Servilius Glaucia, and L. Appuleius Saturninus. It is almost certain that this Servilius is to be identified with the author of the lex repetundarum of 111 or thereabout, probably a plebiscite, which repealed the Acilian law on the same subject.[2435] In important respects his statute was an improvement on earlier regulations of the crime. “Glaucia’s alteration in procedure was thorough and permanent. He introduced the system of the ‘second hearing’—an obligatory renewal of the trial, which rendered it possible for counsel to discuss evidence which had already been given, and for jurors to get a grasp of the mass of scattered data which had been presented to their notice[2436]—and he also made it possible to recover damages, not only from the chief malefactor, but from all who had dishonestly shared his spoils.”[2437] These principles were taken up into the Cornelian law which superseded it in 81.[2438] The circumstance that the man whom the optimates regarded as merely a vulgar demagogue was the author of so statesmanlike a measure ought to militate against their opinion, not only of him, but also of his associates. He, too, represented the knights,[2439] whereas Appuleius was a champion of the rural plebs against the senate and the populace. As tribune of the plebs in 103 the latter proposed a law for the assignment of lands in the province of Africa to the retiring veterans of Marius in lots of a hundred iugera each. When Baebius, a colleague, interceded,[394] the people pelted him with stones and drove him from the assembly. Thus the law was violently carried, but we hear nothing more of it. Probably it was not enforced.[2440] This act marks an epoch in the history of Roman colonization; through it the government first expressed its intention to provide discharged soldiers with farms, a departure made necessary by the Marian policy of filling the army with capite censi.[2441] Either to this tribunate or more probably to his second belongs the lex de maiestate (minuta),[2442] the first of the kind in Roman history. It defined the crime and made general provisions for the prosecution of those who were accused of it.[2443] The same statute provided for the establishment of a court which seems to have been standing rather than special.[2444]

In his second tribunate, 100, supported by Marius, consul a sixth time, and by Servilius, Appuleius proposed and carried a law for the founding of settlements of the Marian veterans in Sicily, Corsica, Achaia, and Macedonia.[2445] Marius was to[395] be a commissioner for conducting these colonies, and was to have the right to enroll as citizens in each settlement a specified number of aliens.[2446] The object of the latter clause was doubtless to provide for the Italian veterans in his army. He proposed further that certain Transpadane lands which the Cimbri had taken from the Gauls and which Marius had recovered should be distributed among the citizens and the Italians.[2447] Another proposal was for the monthly sale of a specified number of modii of grain to every citizen resident of Rome who desired it at five-sixths of an as to the modius—a merely nominal price.[2448] It is not known whether the colonial, agrarian, and frumentarian measures were separate enactments or articles of one statute; or the colonial and agrarian provisions may alone have been combined. However that may be, we are informed by Appian[2449] that attached to the agrarian measure—whether to the others also is nowhere stated—was an article which provided that if the bill should become a law, the senators within five days should swear to uphold it, or if any senator refused to take the oath, he should be expelled from the senate and should be liable to a fine of twenty talents, the Greek equivalent of about five hundred thousand sesterces.[2450] The rural plebs, including many discharged soldiers of Marius, swarmed into the comitia at the call of the tribune and violently passed the law. Marius, who as a consul and a knight disapproved of such illegality, set for the senators the example of swearing to the law, “in so far as it was a law,” which left them a loophole of escape from its provisions should they afterward so determine. Metellus, who alone of the senators refused the oath, was forced into exile and an interdict from fire and water was[396] passed against him by the tribes on the motion of Saturninus.[2451] Soon afterward an election riot gave the senate a pretext for martial law. Placed under custody, Saturninus and some fellow officials were stoned to death by a mob. His measures were then annulled by the senate on the ground that they had been violently passed;[2452] nevertheless Mariana was founded by Marius in Corsica, apparently under the colonial provision.[2453] The import of the agrarian law of Sex. Titius, tribune of the plebs in 99, is unknown.[2454] It may have been merely a reënactment of the Appuleian measure. At all events before it could be put into force it was annulled by the senate on the ground that it had been passed by violence and against the intercession of colleagues.[2455]

The optimates, having again triumphed over the democracy, adopted a policy of moderation. Their consuls of 98, Q. Caecilius Metellus and T. Didius, attempted by a mild statute to check the most flagrant abuses of tribunician legislation, (1) the combination of various dissimilar provisions in one bill (lex satura) for the purpose of drawing the votes of all parties, (2) the passing of bills through the assembly by surprise. Their law accordingly, reviving usages once in force but recently neglected, forbade such combinations[2456] and ordered that the[397] promulgation should precede the voting by at least a trinum nundinum—an interval which included three market days.[2457] Similarly in 95 their consuls, L. Licinius Crassus and Q. Mucius Scaevola, aimed by an equally moderate law to check the usurpation of the citizenship on the part of aliens. It forbade peregrini to perform the functions of citizens, though it did not order the innocent among them to leave Rome.[2458] It provided for the appointment of a special commission to discover and punish usurpers of the citizenship.[2459] Those found guilty were sent back to their communities.[2460] Though the authors were eminent in justice and cherished the best intentions, their law proved to be not merely useless but most pernicious to the state,[2461] as it helped drive the Italians to revolt.[2462]

The next attempt at reform proceeded from the inmost circle of the aristocracy.[2463] M. Livius Drusus, tribune of the plebs in 91, was a man of the highest nobility, wealthy, eloquent, and upright at heart, the son of that Livius who had opposed C. Gracchus.[2464] Regarding his aims and the quality of his statesmanship conflicting opinions have been expressed by modern scholars. The sources intimate that he wished primarily to strengthen the senate by breaking away from its hide-bound conservatism and undertaking various pressing reforms. His agrarian measure was conceived in the Gracchan spirit but was more radical.[2465] Appian[2466] states that it proposed the founding of colonies voted long ago but not yet established. Reference must be to the twelve colonies planned by his father.[2467] It probably[398] abolished the statute of 111 and ordered the division not only of the Campanian lands,[2468] but also of those public domains which were held by the allied communities—in brief, of all the public land remaining in Italy and Sicily;[2469] and it established a board of ten for making the assignments.[2470] Livy[2471] attributes to the author a frumentarian proposal, though we are not informed of its character. The aim must have been to win the support of the populace for his other measures.[2472]

He further proposed to mix with the silver coinage an eighth part of copper,[2473] the proceeds of this gain to be applied perhaps to the execution of his frumentarian project.[2474] There is much controversy as to the intent of his judiciary reform. Appian[2475] supposes that he wished to add three hundred knights to the senate and to draw the jurors from that body thus enlarged. Velleius[2476] is of the opinion that his aim was to transfer the iudicia to the senate; whereas the epitomator of Livy[2477] directly states that he provided for making up the iudicia of senators and knights in equal numbers. We may partially reconcile these conflicting statements by supposing that he planned to compose the jurors’ album of six hundred senators and knights in equal numbers, by which expedient he hoped to bring these two hostile orders back to their former harmony,[2478] while serving the[399] interests of the senate and ridding the state of the corrupt and tyrannical rule of the knights.[2479] By a special article of the rogation a quaestio, probably perpetua, was to be appointed to inquire into the cases of bribery of jurors and to punish the guilty.[2480] His most radical measure, introduced after opposition to his other reforms began to develop,[2481] was for extending the citizenship to the Latins[2482] and to all the Italians.[2483] This group of proposals, designed for the benefit of all parties, proved distasteful to all. The senators found a ground for complaint in the circumstance that the knights would have equal power with them in the courts; the knights were unwilling to surrender their judicial control or to grant the franchise to the Italians; the wealthy Italians feared they might lose the public lands which they still held. Only the poor among the Romans and allies supported the proposal in the hope of profiting by the distribution of lands.[2484] The agrarian, frumentarian, monetary, and judiciary measures were combined in one statute, and passed with violence[2485] and contrary to the omens.[2486] On these grounds and furthermore because they violated the article of the Caecilian-Didian statute forbidding the passing of a lex satura, they were annulled by the senate.[2487] Although Drusus might have interposed his veto against this decree, he preferred rather to disregard it, most probably on the theory that the senatorial authority did not avail against the sovereign will of the people.[2488] Aware that his intercession would but postpone the annulment to another[400] year, he contented himself with informing his opponents that his measures were absolutely necessary for the security of the state, and that those who offended against them did it at their peril. He proceeded to carry his statute into immediate effect.[2489] A plebiscite of Saufeius, a colleague, established a commission of five in addition to the ten provided for by the Livian statute; and Livius was elected a member of both commissions.[2490] After his murder the Livian and Saufeian statutes were both considered null and void.[2491]

The lex Remmia de calumniatoribus, which was enacted before 80, may belong to the year of the Livian attempt at reform, 91;[2492] and in that case it would be most natural to regard it as a piece of counter legislation to offset the proposal for establishing a court for the trial of jurors accused of bribery. The complainant who was proved malicious it rendered liable to trial and punishment with the loss of citizenship and the branding of his forehead with the letter K (for Kalumniator).[2493] This we may believe was the defiance offered by the knights to those who were attempting to bring them to account for their conduct as judges. Exulting in their victory over Drusus, they expressed their antipathy to the Italian movement in a lex de maiestate of Q. Varius, tribune of the plebs in 90. They stood round the Rostra with drawn daggers and forced it through the comitia in spite of tribunician intercession. It supplanted the Appuleian law on the subject by a severe provision against those who encouraged the Italians to demand the citizenship or in[401] any way to conspire or to revolt against the Roman people. It must have contained an article, too, concerning seditions.[2494] The court which it established was to sit on all ordinary dies fasti, undisturbed by iustitia,[2495] and was to be a quaestio perpetua.[2496] Now that two attempts, the Appuleian and the Livian, to substitute more popular measures for the Sempronian frumentarian law had failed, the optimates found themselves strong enough to supersede the Sempronian act by one less popular. This was the Octavian law,[2497] the contents of which are unknown, but which received the praise of Cicero for its moderation.[2498]

The Social War, following close upon the murder of Livius Drusus, compelled the Romans to grant the citizenship to the Italians. This result was brought about by a succession of statutes. A law of the consul L. Julius Caesar, 90, bestowed the citizenship upon the Latins[2499] and on all the Italians who had not taken arms against Rome[2500] and who were willing to accept the gift.[2501] The same statute probably regulated the assignment[402] of these new citizens to the tribes.[2502] In the following year a law of L. Calpurnius Piso, probably a tribune, granted the commanding general power, apparently absolute, to bestow the right of the city upon the soldiers under his orders.[2503] Another statute of 89, carried by M. Plautius Silvanus and C. Papirius Carbo, tribunes of the plebs, granted the citizenship to all members of allied communities who were domiciled in Italy at the time the statute was passed and who within sixty days should signify to the praetor at Rome their willingness to accept the offer.[2504] The object of this measure was not only to expedite the reconciliation, but also to make the work of the next censors practicable. The citizenship thus granted involved the right of suffrage, though in new tribes which voted after the others. Many Italians, especially the Lucanians and the Samnites, took no notice of the offer.[2505] In the same year Cn. Pompeius Strabo, a consul, proposed and carried a law which seems to have empowered himself at his discretion to invest with full citizenship those Transpadani who already enjoyed the Latin rights, and to confer upon the rest the ius Latii.[2506]

The question as to the composition of the courts, still left unsettled, was taken up by M. Plautius Silvanus, the tribune referred to above. His statute transferred the filling of the album from the urban praetor to the tribes, which were to elect each fifteen members. The law made the qualifications of the iudices independent of the social classes. Under it accordingly senators and a few common plebeians in addition to equites served as jurors, so that the equestrian control of the courts was partially checked.[2507]

[403]

Mommsen[2508] supposes that these jurors were for the quaestio de maiestate only. For this opinion he depends upon the assertion of Cicero[2509] that the equites remained till Sulla’s legislation in uninterrupted possession of the courts. The authority of Cicero, however, would allow us to assume that while the equites lost the legal monopoly they retained practical control. However that may be, it is hardly possible that this reactionary measure survived the proletarian uprising under Marius and Cinna. The lex agraria of the same Plautius seems to have been intended for supplying the veterans of the Social War with farms.[2510] The lex Papiria, which introduced the semiuncial as, is doubtless to be assigned to C. Papirius Carbo, the colleague of Plautius above mentioned. If so, the object was to relieve slightly the financial embarrassment caused by the war, and more particularly to bring the small coins of Rome into correspondence with those of Italy.[2511]

IV. The Political Equalization of Italy
88-83

With many Italians still in revolt and the others smarting under the inferior citizenship eked out to them, and with Mithridates threatening the existence of the empire, Rome should have adopted a policy of domestic conciliation. Under these circumstances Sulla, consul in 88, showed a lamentable want of tact in expressing the sentiment that there could be no peace in Italy as long as a single Samnite lived[2512]—a curiously antiquated frame of mind for a statesman of his shrewdness. The cause of the new citizens was taken up by P. Sulpicius Rufus, a patrician who had forsaken his rank to qualify himself for the plebeian tribunate.[2513] A man of marvellous eloquence, he had[404] been an adherent of Drusus, though more inclined to the equestrian interests. As tribune of the plebs, 88, he seems to have tried to win the support of the senate and of the equestrian order to his policy; but failing in the attempt, he looked for aid to the commons and to a small band of knights who were faithful to him. His rogation contained the following articles: (1) that the new citizens and the libertini should be distributed among all the tribes,[2514] with a view to completing the plan of Livius Drusus for the political equalization of Italy; (2) that those who had been driven from the state by violence should be recalled.[2515] This article was probably for the benefit of those knights against whom the Varian law had been turned.[2516] His rogation provided further, (3) that no one who owed more than two thousand denarii should be a senator.[2517] Money was scarce because of the war;[2518] and Sulpicius must have felt that if the senators, most of whom were abundantly able, should pay their debts, it would go far toward relieving the stringency, and that if any were ejected because of failure to pay, an opportunity would be afforded of promoting equites to the vacant places. The consuls of the year, L. Cornelius Sulla and Q. Pompeius Rufus, attempted to prevent a vote on these radical measures by interposing a cessation of business for many days through the proclamation of a festival.[2519] With his armed followers Sulpicius forced the consuls to recall the proclamation, whereupon Sulla fled for safety to his army at Nola. Sulpicius then added to his statute a fourth article to the effect that the imperium of Sulla should be abrogated and that the province of Asia, involving the conduct of the war against Mithridates, should be given to Marius as proconsul,[2520][405] although the latter was now but a private citizen. Doubtless Sulpicius understood that there could be no guarantee for the execution of his statute as long as Sulla remained in power, and furthermore that the advancement of Marius would be a great gain for the knights. The bill was passed by the comitia of tribes; but Sulla, far from delivering up his command, marched his army into Rome to settle the question in his own interest by the sword. On his initiative Sulpicius, Marius, and ten of their associates were declared public enemies by a decree of the senate ratified by a popular vote.[2521] There is no need of assuming that the supporters of the tribune turned against him; the optimates were as clever as their opponents at packing assemblies. The absurdity of continuing the worn-out comitial machinery as a factor of government is nowhere more apparent than on this page of history, which records that the comitia a few days after adopting the measures of Sulpicius, voted to outlaw him and his friends. Marius fled; Sulpicius and several adherents were killed. Thereupon the senate annulled the entire Sulpician statute on the ground that it had been violently passed.[2522]

No statesman, however opposed to popular government, could think of abolishing the comitia or even of putting an end to their legislative function. But the democracy could be effectually[406] checked by reducing the legislative power of the assemblies to the harmless function of ratifying decrees of the senate. This result Sulla and Pompeius aimed to reach by renewing an ancient law[2523] that no measure should ever again be brought before the people which had not been previously considered and agreed to by the senate.[2524] A closely related law of the same consuls ordered that “the voting should not be by tribes but by centuries, as King Tullius had ordained.”[2525] This statement has often been interpreted to signify the restoration of the earlier form of comitia centuriata. But it seems most improbable that, on the point of setting out for a long, distant war, Sulla should think of restoring an organization which had been obsolete for more than a century and a half, and which could have been known to none but antiquarians. With his clear, practical intelligence he could not have failed to see the insuperable difficulty of restoring the ancient definitions of the classes in terms of iugera or even on the later basis of the libral as.[2526] Furthermore no censors were then at hand to undertake the work, and it was altogether unlikely that during his absence any could be elected who would be willing to apply themselves to the revitalization of the antique mummy. Such a measure, too, as Meyer[2527] has pointed out, would place the control of the assembly in the hands, not of the senate, but of the knights, his mortal enemies. It is far more reasonable to suppose that this act transferred the function of ratifying laws from the tribal to the centuriate comitia, to restore the arrangement supposed to have been introduced by Servius Tullius.[2528] If this reasoning is[407] correct, the act under consideration totally abolished the legislative initiative of the tribunes.[2529] The other Cornelian-Pompeian law mentioned by Appian must have applied, accordingly, not to the tribunate but to the other magistracies.[2530] The current interpretation, which involves the theory of a return to the original centuriate system, requires further examination. Its chief basis is the statement of Appian that no law should be brought before the πλῆθος which had not been previously considered in the senate. It is commonly assumed that he uses δῆμος to designate the whole citizen body, and πλῆθος the exclusively plebeian assembly under tribunician presidency. A study of his usage, however, proves that he makes no such discrimination. Δῆμος is ordinarily the people in general, especially as distinguished from the βουλή,[2531] parallel to Livy’s common distinction between plebs and senatus. It is the technical term for the plebs in their tribal comitia under tribunician presidency.[2532] Rarely it signifies the state[2533] with reference to the interest of the[408] people. Πλῆθος, on the other hand, ordinarily denotes the masses, multitude, rabble,[2534] including the crowd gathered not only in a tribunician assembly[2535] but also in the ἐκκλησία (here meaning contio) under the presidency of a patrician magistrate.[2536] But πλῆθος is never technically or officially used to denote any assembly either of the populus or of the plebs. In the passage under discussion Appian’s statement of the Cornelian-Pompeian law is εἰσηγοῦντό τε μηδὲν ἔτι ἀπροβούλευτον ἐς τὸν δῆμον ἐσφέρεσθαι, in which he uses δῆμος according to his custom to designate the popular assembly without specifying whether it is of the populus or of the plebs. In commenting on it he substitutes πλῆθος for δῆμος for the purpose, not of defining the assembly as tribunician, but of contrasting the masses in the assembly with the nobles in the senate: ἐσ τὸ πλῆθος is substantially equivalent to ἐν τοῖς πένησι καὶ θρασυτάτοις used just below; Sulla wished nothing to be submitted to the masses in the comitia centuriata before it had been considered by the senate.

Appian[2537] attributes to Sulla for this early date an attempt to increase the number of senators. “They (the consuls) enrolled three hundred nobles in the senate, which had been reduced in numbers and for that reason had come to be despised.” He does not state, however, by what authority the consuls made this extraordinary adlectio; and it is in fact improbable that the senate had so dwindled. However that may be, the increase did not take permanent effect at this time.[2538] Two other laws of these consuls are briefly mentioned: (1) for planting colonies,[2539] of which nothing is known; (2) a lex unciaria.[2540] The latter may have been a reduction of existing debts by one-twelfth of the principle, or a lowering of the maximal rate of interest to 8⅓ per cent;[2541] or it may have been a general insolvency law, providing for the payment of debts in instalments.[2542] The chief value of these measures, even if we knew[409] them in detail, would be to reveal the idea of their authors; for they were all repealed in the following year on the initiative of the consul L. Cornelius Cinna, probably by a comitial vote.[2543]

Cinna then proposed (1) a renewal of the Sulpician plebiscite for the enrolment of the new citizens and the libertini among all the tribes,[2544] (2) a recall of Marius and the other exiles.[2545] Before these measures could be carried, the consul was driven from Rome and deposed from office by an act of the senate on the motion of Cn. Octavius, the other consul.[2546] This is the only certain instance of the abrogation of the civil imperium known to the history of the republic. Cinna returned at the head of an army; and after taking forcible possession of the city, he carried his law concerning the exiles through the assembly either on his own motion or that of a tribune.[2547] As the senate, reversing its earlier action,[2548] had already legalized the Sulpician provision concerning the distribution of the libertini and the new citizens among the thirty-five tribes,[2549] it was without reënactment carried into effect in 84.[2550] The execution of this measure completed the political unification of Italy. Meantime L. Valerius Flaccus, consul suffectus in 86, to relieve the financial distress, passed a law which compelled creditors to satisfy themselves[410] with one-fourth of the amount due.[2551] In 83 M. Junius Brutus, tribune of the plebs, proposed and carried, as a milder measure of relief, a law for the colonization of Capua.[2552]

I. The Cornelian Reaction
82-70

In November, 82, after destroying his political enemies by war and proscription, Sulla was ready to begin the work of restoring the aristocratic constitution. As both consuls, Cn. Papirius Carbo and C. Marius the younger,[2553] were dead, and as Sulla desired above all things to give his legislation a constitutional basis, he advised the senate to appoint an interrex. The choice fell on L. Valerius Flaccus, princeps senatus, a moderate in politics. Thereupon Sulla withdrew from Rome, leaving the civil authorities free in appearance to act at their discretion. In reality he had determined to retain control of affairs; and accordingly he wrote to Valerius advising the appointment of a dictator, not for a fixed time but till the general unrest should be quieted. He suggested himself as a suitable person for the place. Valerius obediently proposed and carried a law through the comitia centuriata, (1) which made Sulla dictator rei publicae constituendae for an indefinite time with absolute power over the lives and property of the citizens,[2554] (2) which legalized all his past acts, both as consul and as proconsul,[2555] including his arrangements in Asia as well as his proscriptions and confiscations.[2556] He returned to the city, appointed Valerius his magister[413] equitum,[2557] and took to himself twenty-four lictors in addition to a less formal guard of servants and friends.[2558] Without delay he began the promulgation of laws, which undoubtedly he had long been planning. They are here grouped according to subject, with an occasional reference to their chronological relation.

First he applied himself to curbing the power of the tribunate, an institution in which centred the strength of the democracy. A statute for that purpose he must have felt compelled to draw up and pass before the next tribunician election. Instead of renewing his earlier law, however, for absolutely depriving the tribunes of initiative in legislation,[2559] he enacted simply that the previous consent of the senate should be necessary to bills brought by them before the tribes.[2560] By another article of this law he limited the right of tribunes to[414] address the people in contiones.[2561] The range of their intercession was also greatly limited.[2562] Their function of bringing prosecutions before the people underwent restriction not only through the laws affecting the quaestiones but also by special enactment;[2563] for had they retained their unlimited right to prosecute, they could at once have regained all their other power.[2564] Little was left them but their original auxilii latio adversus imperium.[2565] Finally the office was made unattractive to the ambitious by the provision that those who held it were thereby disqualified for other magistracies.[2566] By these measures the most vital and powerful institution in the state was reduced to a shadow without substance.[2567] The return to conditions preceding the Hortensian legislation, in some respects even the Decemviral legislation, was, as Fröhlich[2568] remarks, a backward step such as finds few parallels in history.

[415]

About a year[2569] after limiting the power of the tribunes Sulla proceeded to regulate the other offices through his lex de magistratibus, 81. This statute, making use of the principle contained in the lex Villia annalis,[2570] prescribed (1) that no one could be consul before he had been praetor or praetor before he had been quaestor,[2571] (2) that a space of two years should intervene between the holding of consecutive offices.[2572] (3) The minimal age of the quaestor it fixed at thirty-seven.[2573] The fortieth year was therefore the age for the praetorship and the forty-third for the office of consul. The aedileship, while bringing the holder a positive advantage for his future career, was never an essential step to a higher place. But in case this office was taken, the biennial interval had to be observed.[2574] The quaestorship Sulla made the sole avenue to the senate, so as to dispense with the revision of the list by the censors.[2575] The statute of 151, forbidding reëlection to the consulship,[2576] he repealed, and substituted for it the article of the Genucian plebiscite of 442[2577] which fixed an interval of ten years between the expiration of any office and reëlection to the same.[2578] He increased the number of quaestors, at this time certainly more than eight,[2579] to twenty, with[416] the object not only of supplying an administrative need but also of creating the required number of senators.[2580] It was necessary also to raise the number of praetors from six to eight in order to provide presidents for the new quaestiones perpetuae.[2581]

The reforms above mentioned, together with the doubling of the number of senators to be considered below, naturally led to the enlargement of the chief sacerdotal colleges. The augurs and pontiffs were increased from nine to fifteen and the decemviri sacris faciundis were made quindecemviri.[2582] Another measure, which seems to have been an article of the same act, repealed the Domitian lex de sacerdotiis,[2583] and thus restored to these colleges, and at the same time to the epulones, their right of filling vacancies by coöptation,[2584] leaving to the people the function only of electing the head of the pontifical college from among the members.[2585] As the object of the first article was evidently to provide places for some of the new magistrates and[417] senators,[2586] the coöptation doubtless immediately followed the enactment of the law.

In increasing the number of praetors to eight[2587] Sulla provided that during their year of office they were to remain in the city and devote their whole time to the administration of justice. After the expiration of their term they were to take upon themselves as propraetors the command of provinces. In like manner the consuls were to remain in Italy during their term, in the ordinary course of events to give their entire attention to the affairs of peace; only after they had retired from office were they expected as proconsuls to govern provinces. In brief, Sulla by law established an absolute distinction between the civil magistrate and the military promagistrate.[2588] The lex de provinciis ordinandis[2589] recognized the right of the senate to determine which provinces should be consular and which pretorian in the way provided for by the Sempronian law on this subject.[2590] The Cornelian statute did not, however, any more than the Sempronian, forbid the assignment of a province to a promagistrate by popular vote; and it recognized the right of the senate to create promagistracies.[2591] But it established the rule (1) that the two consuls should receive for a year of promagisterial imperium the provinces declared to be consular; and that they should either agree as to which each should take or cast lots for them;[2592] (2) that the senate should annually assign the eight retiring praetors to the remaining provinces, also for a year of promagistracy.[2593] The same law directed that the promagistrate, who had received the imperium in legal form, should retain it till his return to the city and the celebration of his triumph,[2594] provided he merited one. To avoid conflicts between retiring and incoming governors it ordained that the former should leave the province within thirty days after the latter had entered it.[2595] The law further contained the definite regulation of the supplies and honors granted the legati by the[418] provincials.[2596] The tendency of Sulla’s legislation thus far considered was to weaken the civil functionaries (1) by restricting the tribunician initiative. (2) by increasing the number of quaestors and praetors. (3) by depriving the higher civil magistrates of the military imperium. The last-mentioned loss was in some measure an advantage to the senate but in a far higher degree to the promagistrates, who from this time began to overshadow the republic.

The power taken from the tribunes necessarily went to the senate, to restore to it the full control of legislation which it had possessed before the enactment of the Hortensian statute. Under the reformed constitution it was to be supreme. As it had dwindled during the recent civil war and proscription,[2597] and as the performance of jury service, which Sulla was restoring to its members, required a large number of men, he added three hundred, mostly from the equestrian rank, but including some centurions and other insignificant persons who were likely to do his bidding.[2598] Appian[2599] states that these new senators were elected by the tribes, possibly meaning the tribal comitia.[2600] But as that process of selection would have required an enormous length of time, it is far more probable that each tribe had the privilege of choosing a definite number, perhaps nine, after the precedent of the lex Plautia iudiciaria.[2601] This addition would raise the number to about four hundred and fifty. As the normal membership from Sulla to Caesar was about six hundred,[2602] we may assume either that, independently of the extraordinary adlectio by the tribes, he made the usual censorial enrolment of the recently retired magistrates, or that he left it to time to fill up the senate to the desired number by the annual admission of retired quaestors.[2603] Henceforth it was to be recruited automatically[419] by this process, without any action on the part of the censors, who were thus deprived of the only important function remaining to them.[2604] Closely connected with the increase in membership is the lex iudiciaria,[2605] which restored the quaestiones to the senators.[2606] It was enacted near the end of 81, but prior to the increase in the number of quaestors.[2607] Before this act the courts had remained under the control of the knights in spite of the lex Plautia of 89, which seems not to have continued long in force.[2608]

In the reorganization of the criminal courts (year 81) Sulla passed criminal laws, in which he regulated the procedure of the existing courts and created new quaestiones perpetuae.[2609] His reform increased the number to seven, four of which were concerned almost wholly with maladministration of office: (1) quaestio repetundarum, extortion,[2610] (2) quaestio ambitus, bribery in elections,[2611] (3) quaestio peculatus, misappropriation of public funds[2612] and sacrilege,[2613] (4) quaestio maiestatis, injury to the majesty of the Roman name, of which a private person as well as a magistrate might be guilty.[2614] The three following were concerned with common crimes: (5) quaestio inter sicarios et[420] veneficos, assassination, poisoning, and arson,[2615] (6) quaestio de falsis, counterfeiting and falsification of testaments and other forgery,[2616] (7) quaestio iniuriarum, acute personal violence, housebreaking, and probably defamation of character.[2617] These laws concerning quaestiones contained provisions for granting the accused the privilege of deciding whether the vote should be oral or by ballot,[2618] and they directed that the order of voting should be determined by lot.[2619] The first of these two articles aimed to make the jurors individually responsible, and the second to prevent influential men from prejudicing the case by giving their opinions first.[2620]

While the praetor urbanus and praetor peregrinus still busied themselves with civil jurisdiction, the six other praetors presided over these courts; but as the number was insufficient, past aediles were appointed to preside as iudices quaestionis. This arrangement was especially necessary for the quaestio inter sicarios, overburdened as it was with a variety of crimes.

As these courts were vested with the function of trying without[421] appeal all crimes, including those formerly brought before the comitia, the result was that the people were practically, though not constitutionally, deprived of their judicial power. The tendency of the Cornelian legislation in this as in other respects was oligarchic.

Among the statutes passed in the winter or early spring of 81 we must place the lex de proscriptione,[2621] which added certain regulations to those of the Valerian law for the creation of the Cornelian dictatorship,[2622] and which Sulla considered essential to the execution of his policy and the maintenance of its results. The Cornelian statute concerning proscription forbade the giving of relief or aid to a proscribed person;[2623] it legalized the previous slayings and confiscations of property,[2624] and provided also that the estates not only of the proscribed but also of enemies who had fallen in battle should be sold for the benefit of the treasury.[2625] It excepted from the sale ten thousand of the youngest and strongest slaves, who were given their freedom; and it debarred from the ius honorum the sons, grandsons, and other descendants of the proscribed,[2626] with a view to keeping from them the means of vengeance; and lastly, it fixed the date for closing the proscriptions at June 1, 81.[2627]

During the winter of 82-81 Sulla gave his attention not only to law-making but also to the sale of confiscated property and to the regulation of Italy. The latter work was carried out by the administrative power of the dictator through the destruction of the fortifications of rebellious communities, their punishment by fines and extraordinary taxes, and the confiscation of some of their lands, to be assigned to his discharged veterans.[2628] The Cornelian agrarian laws,[2629] which brought about these confiscations[422] and assignments, seem to have been not acts of the comitia but dictatorial orders.[2630] They must have been issued from time to time as occasion demanded, probably through the entire year 81.[2631] The legions were kept together till after the triumph (January 27, 28 of the year 81)[2632] and then disbanded, to be led off gradually to their lands. Some of the municipia to which soldiers were assigned, most obstinately Volaterrae and Nola, resisted their admission by force of arms. To punish these rebels Sulla carried through the comitia centuriata his lex de civitate Volaterranis adimenda,[2633] which disfranchised not only Volaterrae but also other rebellious municipia.[2634] Those who by this act were deprived of the citizenship received the so-called Latin rights of Ariminum.[2635]

Among the regulations for the improvement of the finances, which he found in bad condition,[2636] was his abolition of the distributions of grain.[2637] Whether it was effected by a lex frumentaria or a dictatorial order cannot be determined.[2638] The levy of taxes on Italian and transmarine communities[2639] could be brought about by senatus consulta,[2640] as the people had nothing to do with such matters. Credit had been shattered by the law of L. Valerius Flaccus concerning debts, 86,[2641] which Sulla repealed by one of his own on the same subject, 81.[2642]

In connection with the Circensian games which he celebrated in the autumn of 81, and which in honor of Victoria were thereafter repeated annually from October 26 to November 1,[2643] Sulla[423] must have passed a lex de ludis Victoriae instituendis.[2644] Lastly came the sumptuary law, through which he attempted to regulate the manners and morals of the citizens.[2645] It was the restoration, in a revised form, of the lex Licinia of 104,[2646] which had been repealed by M. Duronius in 97.[2647] The Cornelian statute permitted the expenditure of no more than three hundred sesterces for meals on the calends, nones, ides, ludi, and certain other holidays, and only thirty for ordinary meals; and it fixed the prices of various luxuries.[2648] Another article of the same statute limited funeral expenses.[2649] The author’s object seems to have been to restore the morals and manners as well as the constitution and laws of the good old time before they were corrupted by the demagogues.

Sulla’s legislation was substantially complete on January 1, 80, when he entered upon his second consulship with Q. Caecilius Metellus Pius as colleague.[2650] Retiring into private life early in 79, he left the constitution to its fate. No better comment on its value could be offered than the history of its decline and overthrow in a single decade. Opposition began to manifest itself from the time of his abdication; and he was hardly in his grave when M. Aemilius Lepidus, consul in 78, promulgated bills for the abolition of some of the Cornelian statutes; but the opposition of his colleague, Q. Lutatius Catulus, and of the senate prevented their ratification.[2651] The right of retired tribunes to[424] sue for other offices,[2652] however, was restored by a statute of the consul C. Aurelius Cotta, 75.[2653]

Before coming to the restoration of the tribunician power it is necessary to mention the statutes passed under the Cornelian constitution. To 78 or 77 probably belongs the lex Plautia de vi, generally regarded as tribunician, which established a quaestio perpetua for the trial of persons charged with violence. It also forbade the acquisition by long use of things stolen or violently seized.[2654] As no censors were elected, an order of the people of unknown authorship in 75, pursuant to a senatus consultum, empowered the consuls of the year to farm the vectigalia.[2655] The approaching end of the Cornelian régime was foreboded in the Plautian law for the recall of Cinna and other exiled democrats, if indeed this measure belongs to 73,[2656] and certainly in the consular law of Cn. Cornelius Lentulus Clodianus, 72, which directed the consuls of the year to collect the money remitted by Sulla to the purchasers of confiscated estates.[2657] A popular tendency may be discovered as well in the[425] final settlement of the question of conflict between sessions of the senate and of the comitia by the lex Pupia, which seems to have been a statute of M. Pupius Piso Calpurnianus, praetor in 71.[2658] It forbade the magistrates to convoke the senate on those comitial days on which an assembly actually met,[2659] the prohibition applying to that part only of the day which preceded the dismissal of the comitia.[2660] It was probably this year which saw the enactment of the lex Antonia de Termessibus—a plebiscite proposed de senatus sententia by C. Antonius, tribune of the plebs, and several of his colleagues, for granting to Termessus Major in Pisidia the rights of a free state in friendship and alliance with Rome, and for regulating on that basis the relations which were to exist between the inhabitants and the Romans.[2661]

The struggle for the rehabilitation of the tribunes began in 78, when those officials applied to the consuls for legislation on the subject. Even Aemilius Lepidus[2662] declined, as he could see no advantage in the unhampered tribunate.[2663] Though generally in these early years of the Cornelian régime the tribunes were mere puppets of the senate, one of them in 76, L. Sicinius, dared in a contio to plead for the full restoration of their office.[2664] In the following year Q. Opimius, another tribune, continued the struggle, with such success that he secured the passage of the Aurelian law above mentioned.[2665] This measure narrowly escaped annulment, and Opimius after retiring from office was[426] exorbitantly fined on the ground that he had interceded in violation of a Cornelian law.[2666] In the year of the condemnation of Opimius, 74, L. Quinctius, who had risen to the tribunate from the lowest social class, strove energetically for the same object,[2667] though he could effect no more than the maintenance of the Aurelian law. Toward the close of his term, however, he opened battle against the senatorial courts, which had fallen into disfavor because of their corruption.[2668] In 73 the contest was resumed by Licinius Macer the annalist, then tribune of the plebs, who demanded in vain the full restoration of the tribunician power.[2669] In his efforts he had the support of C. Julius Caesar.[2670] The struggle died down as the danger from Spartacus rose; but at the close of the servile war it was a tribune of the plebs, M. Lollius Palicanus, a man of low birth, who in a contio held outside the walls in order that Pompey, a proconsul, might attend, persuaded the latter to commit himself publicly to a definite promise to bring about a repeal of the lex Cornelia de tribunicia potestate.[2671] Inveighing against the corruption of the senatorial courts,[2672] Pompey in the same speech intimated an intention to propose a bill on this subject as well.

Shortly after entering upon the office of consul in 70, or at all events before the elections of the year,[2673] Pompey promulgated his rogation for the restoration of the tribunician power. The senate yielded in spite of its dislike for the measure,[2674] and Licinius Crassus, his colleague,[2675] added his name to the proposal.[2676] The people gladly accepted it. Those articles of the Cornelian statute which remained untouched by the Aurelian[427] law of 75 were thereby repealed, and every restriction on the tribunes removed.[2677] By destroying the chief support of the Cornelian constitution this measure paved the way to its overthrow. Notwithstanding the popular clamor for a reform of the courts,[2678] Pompey hesitated to propose a law for that purpose, as he hoped rather to purify the senatorial order through a severe censorial revision so as to make a judiciary law unnecessary. The reform, however, was taken in hand by L. Aurelius Cotta, praetor in the same year, youngest brother of the consul of 75.[2679] The rogation was promulgated while the trial of Verres was in progress and while the people were excited by lack of confidence in the senatorial jurors.[2680] The first project seems to have been the retransfer of the courts to the equites;[2681] but when the senators saw that they were destined to lose in the contest, they were able to save something by compromise. It was agreed that there should be three decuries of jurors, composed in equal numbers of senators, knights, and tribuni aerarii respectively.[2682] The last-named decury was included because the Plautian judiciary law of 89 had opened the courts to common citizens in addition to senators and knights,[2683] and it was now thought that no less liberality should be shown. The Aurelian statute provided accordingly that the urban praetor[2684] should make up the annual album iudicum of an equal number of men from each of the three classes.[2685] The good feature of[428] the law is obvious. As experience had proved the equestrian courts, as well as the senatorial, to be partisan and corrupt, it was hoped that a combination of the two with an equal proportion of the most responsible and respectable common citizens would be just and impartial. If these expectations were not realized, it was the fault of the Romans, not of their law.

II. Democracy in Alliance with Caesarism
70-49

The first tribunician law under the restored constitution may have been the sumptuary statute of C. Antius Restio, which Lange[2686] assigns to the year 70. It limited the amount to be expended on festive meals; it designated some delicacies as allowable and others as forbidden; and it regulated the participation of candidates and of magistrates in dinners away from home, doubtless with a view to curtailing ambitus practiced by such means.[2687] Far however from being a partisan measure, this statute seems to have been suggested by the censors of the year, to reënforce their function of supervising the morals of the citizens.

Three years passed before the tribunes of the plebs were ready to make independent use of their recovered power. The reason is to be found in the harmony—concordia ordinum[2688]—reëstablished between senators and knights, when representatives of the two classes found themselves sitting together on the jury benches. Although the object of the combination was idealized by contemporaries, it was in fact a governing “trust,” which in practice operated for the maintenance of plutocracy and for the ruthless exploitation of the provincials.[2689] The nobles were willing to concede something to the equites to make permanent the alliance with this powerful order.[2690] L. Roscius[429] Otho, tribune of the plebs in 67, as spokesman of the optimates[2691] “railroaded”[2692] through the assembly a statute which ordered that there should be reserved in the theatre for those in possession of the equestrian census[2693] fourteen rows of seats just back of the orchestra, in which sat the senators.[2694] It was more than a restoration of the concession made to the knights in 146, which evidently Sulla had withdrawn.[2695]

There were in this year (67), however, two popular tribunes, A. Gabinius and C. Cornelius, both of whom proposed and carried laws in the interest of the people. Early in the year Gabinius persuaded the tribes to adopt a statute which ordered the senate to sit daily during February to consider embassies.[2696] It was in this month that delegations from other states generally came. Often to obtain a hearing they had to bribe the senators and magistrates.[2697] For that month the Gabinian law reversed the Pupian[2698] by making senatorial sessions compulsory and forbidding the concurrence of comitia.[2699] The object was to limit the stay of foreign embassies at Rome not only for their own convenience but also for lessening both the need and the opportunity for bribery. Closely related was the purpose of his statute which forbade lending money to provincials at Rome.[2700] Representatives of subject and allied states, finding it necessary to bribe more extensively than their resources in hand allowed, were tempted to borrow of the capitalists at exorbitant interest. Private individuals from the provinces must often have similarly borrowed to the ruin of their fortunes. The double aim of the statute, accordingly, was to help the provincials and to check bribery. How it passed against senatorial opposition is unknown. A supplementary measure on the same subject was[430] proposed to the senate by C. Cornelius, a colleague of Gabinius, for prohibiting the lending of money to the legati of other states, the idea being identical with that of the two Gabinian laws. The good intention of Cornelius is vouched for by the well-known uprightness[2701] of his character, which contrasts with the reputed vileness of Gabinius. But the senate rejected the proposal on the ground that it had already made sufficient provision for checking the abuse. Although Cornelius thereupon complained in a contio that the provinces were being exhausted by usury, he does not seem to have urged his measure further.[2702] He promulgated, however, against the interests of the senate a rogation for ordering that no one should receive a dispensation from a law excepting through a vote of the comitia. This right had been acquired by the people in the period between the Publilian and the Hortensian legislation (339-287).[2703] It had come to be regarded as inseparable from the sovereignty of the people to such an extent that all senatus consulta for dispensing from the laws contained a provision for bringing the matter before the comitia. Gradually the custom of referring to the people ceased, and at last the provision to that effect was dropped from senatorial decrees. The result was that often a few senators, meeting in the Curia, voted away to acquaintances and relatives the valuable privilege of exemption from a law. The optimates induced a tribune of the plebs, P. Servilius Globulus, to intercede against the bill while it was being read to the assembly prior to the vote. When the dissenting tribune forbade the crier to proceed with the reading, Cornelius himself read it.[2704] A disturbance in the assembly, started by the interference of Piso the consul, caused Cornelius to dismiss the concilium. Afterward he so compromised with the optimates as to secure the passage of a law that no dispensations should be granted by the senate unless two hundred members were present, and that when a resolution of the kind was brought down from the senate to the people, no one should intercede against the act.[2705] The victory was with the senate; it gained a legal right to a function which it had usurped, provision being merely[431] made against abuse. But it exercised this function by the sufferance of the tribunes, any one of whom could insist on bringing the dispensing resolution before the people, in which case his colleagues were forbidden to intercede.[2706]

Another proposal of this tribune was the rogatio de ambitu, which threatened with severe penalties not only the candidates but also their agents, the divisores, whose duty was to distribute the corruption fund among the tribes.[2707] The senate, declaring the penalties so harsh that neither accuser nor jurors could be found to enforce it, put the bill in the hands of the two consuls, C. Calpurnius Piso and M’. Acilius Glabrio.[2708] Here was a comical situation; both consuls were liable to the existing law on the subject; but for the sake of appearances they had to revise the bill and present it to the comitia in the Forum.[2709] The lex Acilia Calpurnia, enacted in this way,[2710] inflicted on those found guilty of the crime a heavy fine, and forever disqualified them from holding office or sitting in the senate.[2711] Cornelius proposed other measures, all of which were vetoed by colleagues excepting his lex concerning the edict of the praetor, described as follows by Dio Cassius:[2712] “All the praetors themselves compiled and published the principles according to which they intended to try cases; for all the decrees regarding contracts had not yet been laid down. Now since they were not in the habit of doing this once for all and did not observe the rules as written, but often made changes in them and incidentally a number[432] of clauses naturally appeared in some one’s favor or to some one’s hurt, he moved that they should at the very start announce the principles they would use and not swerve from them at all.” The object was to make the administration of the law more just and regular, and to cut off an opportunity for favoritism.[2713]

By far the most important measure of the year was the Gabinian law for the appointment of an especial commander against the pirates. The proposition was that from the consulares should be chosen a general for putting down the pirates; that his province should be the entire Mediterranean and a strip of its coasts extending fifty miles inland, including Italy and the islands; that the command should continue three years; that the holder of this imperium should have the right to fifteen legati and 200 ships, and the privilege of enlisting soldiers and oarsmen over all his province; that he should have credit with the aerarium at Rome and the publicans in the provinces for 6000 talents.[2714] The name of Pompey did not appear in the bill, but no one doubted who was to be the man. The optimates were all opposed, though in 74 they had given Antonius such a command,[2715] which now served Gabinius as a precedent. The senate was compelled by threats of the people to yield, but used its influence on the colleagues of Gabinius to have them oppose the measure. Two of them, L. Roscius Otho, author of the lex theatralis,[2716] and L. Trebellius, attempted to prevent comitial action. The tribes began to vote the deposition of Trebellius; but before the eighteenth was called he desisted.[2717] Thereafter both remained silent, and the law was passed. Pompey was then elected to the command by the tribes.[2718] They enacted further that he should have two quaestors, twenty-four legati pro praetore, 500 ships, 120,000 men,[433] and 5000 cavalry. On one point only the senate refused its sanction; it would not permit Gabinius to be a legatus.[2719] An article of the statute gave as a province to the outgoing consul, M’. Acilius Glabrio, Bithynia and Pontus with the conduct of the war against Mithridates.[2720] The Gabinian law led to far-reaching consequences. It established temporarily, not precisely a monarchy, but a dyarchy, as the Roman world was thereby divided between the senate and a general with almost absolute power. The arrangement was a prototype of the Augustan system. At the outset the act seemed to be justified by the results, for immediately after its adoption the price of grain fell from the famine height to which the piratical control of the seas had forced it.[2721]

An addition to this vast power was made in the following year by the Manilian law. The author, C. Manilius, after entering upon his tribunate on December 10, 67, promulgated a rogation for giving libertini the right to vote in the tribes of their patrons.[2722] It was said by some, though probably without ground, that the real author was Cornelius.[2723] While in general the optimates disliked the measure, some favored it in the hope that they would gain political influence through the votes of their freedmen.[2724] In spite of the fact that constitutionally the comitia could not be held on a festive day, Manilius convoked the assembly on the last day of the year, which was the Compitalia, toward evening, gathering to the assembly a few men who he knew favored the proposal. On the following day the senate heard of the enactment and at once declared it invalid.[2725] The behavior of Manilius exposed him to certain prosecution unless he could win powerful support. This is the motive ascribed to him by Dio Cassius[2726] for his famous law[434] which conferred extraordinary power on Pompey for the conduct of the war against Mithridates.[2727] It gave the Roman general, in addition to his existing command, the provinces of Asia, Bithynia, and Cilicia with the right to declare war and make treaties at his discretion.[2728] The province thus granted him included nearly all the eastern domain of Rome which had not already been conferred by the Gabinian law. No discussion of this measure in the senate is mentioned, though it is difficult to understand how such action could be avoided.[2729] The only optimates who opposed the bill in contiones were Q. Lutatius Catulus and Q. Hortensius, who had been the chief opponents of the Gabinian law. Their objection was the monarchical position in which these measures were placing Pompey.[2730] Its leading supporters were Caesar and Cicero.[2731] It was so enthusiastically favored by the knights and the populace that its adoption was from the beginning a foregone conclusion.

In 65 the conservatives found themselves strong enough to put through the assembly the plebiscite of C. Papius for expelling the peregrini from Rome, and for punishing those who had usurped the rights of the citizens. The object was to prevent Latin-speaking foreigners, especially the Transpadane Gauls, from packing the assemblies with a view to passing measures for the further extension of the franchise. The Papian law was modelled after the Claudian of 177,[2732] the Junian of 126,[2733] and in some respects after the Licinian-Mucian of 95.[2734] Probably to the same Papius belongs the lex Papia de Vestalium lectione, which limited the power of choice exercised by the supreme pontiff.[2735]

[435]

After the unusual comitial activity of 67-66 there was almost a pause in legislation till the year of Cicero’s consulship, 63. To that date belongs the plebiscite of T. Atius Labienus, which restored the form of election of sacerdotes introduced by Domitius in 103[2736] and abolished by Sulla.[2737]

A remarkable effort at agrarian legislation was made at the beginning of the year by P. Servilius Rullus, tribune of the plebs. In December, 64, shortly after entering office, he promulgated a bill, comprising more than forty articles,[2738] with the intention of having it voted on in January.[2739] The administration of the law was to be in the hands of ten men elected by seventeen tribes after the manner of the comitia pontificis maximi,[2740] to hold office five years.[2741] Candidates should be required to present themselves in person[2742] (so as to exclude Pompey). This commission was to have the irresponsible[2743] management of large resources[2744] for the purchase of land in Italy,[2745] on which they were to plant colonies at their discretion.[2746] The object of the rogation seems to have been the creation of an oligarchy of ten who with their vast powers and revenues should control Rome and counterbalance the military prestige of Pompey. Caesar and Crassus were probably behind the scheme. Should it by any chance succeed, they would be the dominant members of the board. Its faulty structure and revolutionary demands, however, made failure almost certain from the outset. At all events Cicero, driven into the ranks[436] of the optimates by the necessity of opposing it,—so Caesar may have reasoned,—would thus be eliminated from the leadership of the democratic party, while the populace, with appetite whetted for an agrarian law, would be ready for the saner measure which Caesar was himself intending to propose as soon as an opportunity offered. But Cicero out-manoeuvred his adversaries. It was as a friend of the people and an ally of the tribunes that he opposed the bill in two contiones,[2747] after which a threat of intercession on the part of a colleague induced Rullus to withdraw it.

In Cicero’s judgment there was pressing need of a new lex de ambitu to cover the loopholes left by the Acilian-Calpurnian statute of 67.[2748] Early in the year he passed through the senate a decree which so interpreted that enactment as to make it apply to the hiring of sectatores, the granting of free seats to the tribes at gladiatorial shows, and the entertainment of the public at dinners.[2749] Later in the summer, after the elections of the year had been announced, a dispensation from the Aelian-Fufian law[2750] enabled him and C. Antonius, his colleague,[2751] to propose and carry a new statute concerning bribery at elections.[2752] It increased the penalty on the divisores,[2753] and forbade any one within the two years preceding the announcement of a candidacy to give gladiatorial shows excepting in fulfilment of a testament.[2754] The penalty for the convicted candidate was ten years’ exile.[2755] The part of the law which had to do with the jurors included a provision for fining those who absented themselves from the trial even on the ground of illness.[2756] A measure certainly passed in this year, and probably forming an article of the Tullian lex de ambitu, forbade[437] candidacies in absentia.[2757] Amid the troubles connected with the Catilinarian conspiracy Cicero found time for an attempt to relieve the provincials of one of the most flagrant abuses inflicted on them by the senatorial oligarchy. To increase the dignity and lessen the expense of a member while travelling even on private business through the provinces, the senate was accustomed to have the office of public legatus conferred on him by a magistrate, which honor at the same time implied the right to be absent from sessions of the senate.[2758] In this capacity a senator represented the state,[2759] and could have lictors assigned him by the provincial governors.[2760] Abuses of this privilege were to the provincials an especially vexatious form of oppression.[2761] Cicero’s first rogation on the subject proposed to abolish the free legation, but when a tribune in the service of the illiberals interceded, the measure before enactment was so weakened as to limit the privilege of any one person to a single year,[2762] and hence did little to remedy the mischief.[2763] There was in fact no hope for the provincials either from the avaricious plutocrats or the hungry proletarians.

The legislation of the years between the consulships of Cicero and Caesar, 63-59, involved no important principle. To prevent[438] the introduction of forged statutes in the archives,[2764] a law of D. Junius Silanus and L. Licinius Murena, consuls in 62, forbade the filing of a statute in the aerarian archives excepting in the presence of witnesses.[2765] In this year M. Porcius Cato and L. Marcius, tribunes of the plebs, carried a law which threatened with punishment commanders who reported falsely to the senate the number of the enemy killed and of citizens lost, and required them within ten days after returning to the city to give their oath before the urban quaestors that they had transmitted correct reports.[2766] For the year 60 must be mentioned the pretorian law of Q. Caecilius Metellus Nepos, which abolished vectigalia in Italy,[2767] and the tribunician rogation of L. Flavius for granting lands to Pompey’s veterans. The latter failed through the disapproval of the senate.[2768] Far more interesting because of the procedure, though otherwise of little consequence, was the tribunician rogation of Herennius of the same year for transferring P. Clodius to the plebeian rank. The subject has been considered in an earlier chapter.[2769]

The year of Caesar’s consulship was one of unusual legislative activity. Resuming the agrarian policy of the Gracchi, which had been undone by the statute of 111,[2770] he promulgated early in the year a bill for the distribution of lands, which exempted[439] the Campanian[2771] and Stellatine[2772] territory as well as that of Volaterrae, which Sulla had confiscated without ejecting the inhabitants.[2773] As little other public land remained in Italy, the bill ordered that money accruing from the sale of booty taken by Pompey, and from the new revenues of the territory he had won for Rome, be used for the purchase of lands from those who were willing to sell at the values assessed in the last census.[2774] The beneficiaries were the needy citizens and the veterans of Pompey.[2775] The lots assigned were to remain inalienable twenty years.[2776] The work of distribution was to be in the hands of a board of twenty—vigintiviri[2777]—which should not include the author of the law.[2778] A sub-committee of this large board must have been the Vviri agris dandis adsignandis iudicandis,[2779] who in the opinion of Mommsen[2780] possessed the sole judicial power connected with the work of distribution. As the senate studiously delayed action on the measure, though unable to offer any criticism,[2781] Caesar without its sanction presented the bill to the people.[2782] Bibulus, his colleague, backed by three tribunes of the plebs, not only protested against the bill,[2783] but resorted to sky-watching and the proclamation of festivals to prevent its adoption.[2784] Disregarding this opposition, Caesar with the support of Pompey and Crassus offered his rogation to the tribes,[2785] who accepted it with great enthusiasm. For the remainder of his term he ignored the senate in all his legislation. As to his other agrarian provisions, it is difficult to determine whether they were attached to this rogation before its enactment or formed a new bill. In favor of the second alternative[440] it is to be noticed in the first place that Cicero and others mention Julian agrarian laws,[2786] and that Cicero’s expression “Campanian lex”[2787] could describe a measure relating to the Campanian territory but not the whole group of agrarian provisions of that year. Moreover although Cicero was acquainted with the Julian rogation from the beginning of the year,[2788] he did not at Formiae hear of the inclusion of the Campanian territory till near the end of April.[2789] It might be assumed that after the senate and Bibulus showed opposition Caesar modified the original rogation before putting it to vote, but no mention is made of an alteration. Finally Dio Cassius[2790] and Plutarch[2791] speak distinctly of an earlier and a later law.[2792] On the whole it seems probable therefore that toward the end of April Caesar promulgated a second agrarian bill which provided for the distribution of the Campanian and Stellatine lands among needy citizens, preferably those who had three or more children.[2793] The complete execution of the law would dispose of all public lands in Italy from which a revenue might be derived. An article required not only senators within a specified time to swear that they would support the measures[2794] but also candidates for office[441] for the following year to give their oath in contio that they would not propose any modification or repeal of them.[2795]

This statute was full of significance both in content and in the manner of enactment: it set at defiance the senate and the auspices; it deprived the state of important revenues, increasing correspondingly the financial burden on the provinces; it brought relief to many proletarians, while encouraging militarism through a provision for Pompey’s veterans. Ostensibly democratic, it cemented and announced to the world the triumvirate of Caesar, Crassus, and Pompey—a combination of democratic, plutocratic, and military bossism, which proved more dangerous to political liberty than had been the dictatorship of Sulla. The last great agrarian law of the republic contained in itself a prophecy of the monarchy which its author was soon to establish.

Because of the losses suffered in Asia in the recent war with Mithridates, Caesar carried a law, also early in the year, for a remission of a third of the sum due to the treasury from the publicans of that province. As the senate had failed to pass a measure of relief for the contractors of revenue,[2796] the concession from Caesar and the people served to alienate the feelings of the knights from the optimates and to attach them to the ambitious consul.[2797] Next to the agrarian statute, however, the lex de[442] pecuniis repetundis was the most important piece of legislation of his consulship. Comprising at least a hundred and one articles,[2798] including much material from earlier laws on extortion, it dealt minutely with all the particulars of the offence, procedure, and punishment so exhaustively as to render further comitial legislation on the subject unnecessary.[2799] It aimed to protect alike citizens, provincials, and allies from every form of misrule and oppression by the home and promagisterial authorities. It regulated strictly the supplies due from the provincials to the promagistrate and his officium, including shelter and sustenance for man and beast.[2800] Under this law the governor was forbidden without an order from Rome to conduct diplomatic business with foreign states, to wage war, or to cross the boundary of his province,[2801] or to demand of the cities crown gold for a triumph not decreed by the senate.[2802] On retiring from his command he was to leave copies of his administrative accounts in two cities of his province and an exact duplicate in the aerarium.[2803] It provided further for the punishment of corrupt accusers, jurors, and witnesses in cases under the law.[2804] A man convicted of the crime was fined and compelled to restore extorted property; and in case his estate did not suffice to cover the loss, an investigation could be made as to who had shared his gains.[2805] He was also to be expelled from the senate and banished.[2806] The severity of the law is commended by Cicero.[2807] Caesar’s legislation concerning extortion was reënforced (i) by the judiciary law of P. Vatinius, tribune of the plebs, of the same year, which granted to both accuser and accused greater freedom in the rejection of jurors than had been allowed by the corresponding law of Sulla, the terms of[443] which however are not definitely known;[2808] (2) by a statute of Q. Fufius Calenus, praetor in 59, which required the three decuries to deposit their votes in three separate urns, the object being to establish class responsibility.[2809] The remaining comitial acts of Caesar were merely administrative. As a favor to Pompey, who in his eastern campaign had received support from Ptolemy Auletes, king of Egypt,[2810] Caesar in the beginning of his consulship[2811] carried a resolution for acknowledging the latter as an ally and friend of the Roman people.[2812] Later in the year, to repay Pompey for his support of the agrarian statute, Caesar secured against the will of the senate the enactment of a law for confirming his ally’s arrangements in the East.[2813] Lastly may be mentioned the lex curiata for the arrogation of P. Clodius Pulcher proposed by Caesar in the capacity of pontifex maximus, a measure considered in an earlier chapter.[2814] Clodius wished to qualify himself for the tribunate of the plebs, and his design was aided by Caesar in the expectation that he would occupy the attention of Cicero, the only strong opponent of the triumviri. Caesar’s immediate future was provided for by a plebiscite of his friend Vatinius, which granted him Cisalpine Gaul and Illyricum as a province for five years beginning March 1, 59.[2815] He was to have three legions[2816] and to name his own legati, who were to enjoy propretorian rank.[2817][444] The senate, which had looked unwillingly upon these proceedings, now added Comata and a fourth legion, partly because of the conviction that in the face of an imminent war with the Helvetians no one would be willing to take that province without Cisalpina as a support, and partly through fear lest the popular party might gain the additional credit of bestowing it.[2818] In one respect the position was far better than that held by Pompey in the East: while winning prestige in a popular conquest[2819] and attaching to himself a powerful army, Caesar would be near enough to Rome to control the political situation.[2820] Intellectual brilliancy would serve in place of experience. In fact, in addition to maintaining the position of democratic boss of Rome, the outlook seemed to him favorable for wresting from his fellow-triumvir the sceptre of the military monarch.[2821]

P. Clodius Pulcher, tribune of the plebs in 58, seems to have worked partly as an agent of Caesar for the more complete organization of democracy, and partly from motives of personal hatred for Cicero. He first proposed a frumentarian plebiscite, which provided for the absolutely free distribution of grain monthly among the citizens resident in Rome.[2822] In vain the optimates complained that the abolition of the existing price, which was that prescribed by the Sempronian law,[2823][445] would rob the treasury of nearly a fifth of its income.[2824] Accepted by the tribes, the law proved a most effective means of maintaining a numerous mob of proletarians ever present and willing to vote for the measures of their political patrons, the leaders of the democracy. A closely related plebiscite permitted the free organization of clubs (collegia),[2825] which a senatus consultum of 64 had strictly limited,[2826] but which now became an active part of the democratic organization.[2827] His legislation, however, was not utterly devoid of statesmanship. A third act, by repealing those articles of the Aelian and Fufian statutes which applied obnuntiations to law-making assemblies, deprived the nobility of their most effective means of controlling legislation.[2828] An article of the same statute declared all dies fasti available for legislation.[2829] This measure went far toward abolishing a usage which had made religion a mockery and public life a farce. To limit the arbitrary power of the censors, Clodius enacted through a plebiscite that these magistrates should place their stigma upon those only whom they had jointly condemned after having heard sufficient testimony.[2830] Another comitial act prohibited the secretaries of the quaestors from engaging in business in the provinces.[2831] The last three statutes mentioned were useful reforms. His most famous measure was the law which prescribed the penalty of interdict from fire and water for any one who had put to death a Roman citizen without trial.[2832] Strengthening the Sempronian law of appeal,[2833] it forced the party issue as to the question whether that act could apply to persons accused of having attempted to overthrow the state. The optimates contended that such persons were no longer citizens but enemies and hence outside the pale of law[2834]—a principle which the[446] populares held to be destructive of liberty. From a democratic point of view the Clodian law was just and necessary; but unfortunately Cicero, who in putting to death the associates of Catiline had simply acted for the senate, was to be made the scapegoat. Fearing condemnation under the law, Cicero voluntarily retired into exile, whereupon a new plebiscite declared the interdict to be legally in operation.[2835] In the following year he was recalled with great enthusiasm by a resolution of the comitia centuriata proposed by the consuls P. Cornelius Lentulus and Q. Caecilius Metellus.[2836] The same magistrates were authors of a law for conferring upon Pompey the care of the grain supply, which he was to administer five years with unlimited proconsular imperium.[2837] In spite of such[447] efforts to prop up his power in order to counterpoise that of Caesar, the latter through the prestige of his brilliant victories in Gaul and the liberal use of money in the capital far outshone his fellow-triumviri. The only hope for their ambition was to be found in the good will and favor of the great proconsul. As the result of the conference held by the triumviri at Luca, 56, Pompey and Crassus were elected to a second consulship for 55 through the votes of Caesar’s soldiers, who were given a furlough to attend the comitia held purposely late in the year.[2838] As proconsuls Pompey and Crassus were to be given advantageous commands, and Caesar was to receive as his reward a prolongation of his governorship.[2839] Subservient tribunes were found to propose the desired measures, and it had long been an easy matter to obtain a majority in favor of any conceivable bill. C. Trebonius drew up a law for granting Syria to Crassus and the two Spains to Pompey for a period of five years, with a dispensation for both from that article of the lex Iulia repetundarum which forbade promagistrates of their own free will to declare war.[2840] The intercessions of tribunes and all other opposition were violently overborne, and the rogation was readily accepted by the people.[2841] Thereupon the two consuls secured the passage of an act for extending Caesar’s command.[2842]

Notwithstanding the fact that these consuls had been elected with the help of the clubs organized under the Clodian law of 58, they must have felt such associations to be a menace to themselves as well as to the public peace. Crassus accordingly[448] carried through the assembly a lex de sodaliciis, which increased the penalty for ambitus committed through the agency of clubs.[2843] It also ordered that the jury in such cases be made up by the accuser from any four tribes he should choose, however unfavorable they might be to the accused,[2844] who had merely the right to reject one of the four tribal decuries thus presented,[2845] in so far as the court itself did not grant him the further privilege of rejecting individuals.[2846] It is difficult to understand how impartial justice could be administered under such a law. But no further legislation concerning ambitus was attempted till 52, when Pompey in his third consulship carried a statute which increased the penalty for the offence and made the procedure more strict.[2847] The attention of Pompey in his second consulship was directed rather to other classes of crimes. First he had a statute adopted concerning parricide (the murder of a near relative or patron), which hitherto had been provided for by the Cornelian lex de sicariis et veneficis.[2848] His project for displacing the lex Iulia repetundarum by a statute which should make the non-senatorial class specifically responsible failed to become a law.[2849] A sumptuary rogation for restricting personal expenditure he voluntarily withdrew on the advice of Hortensius, who persuaded him that luxury and delicacy of life were but the fitting adornments of empire.[2850] His lex iudiciaria ordered the urban praetor to begin the selection of jurors from the wealthiest of each of the three classes, and thence to descend gradually to the poorer members, the object being to make the composition of the courts as aristocratic as the terms of the Aurelian statute of 70 would allow.[2851] The lex de vi of[449] his third consulship, 52, was merely for the appointment of a special commission to try those who were accused of having murdered Clodius, burned the Curia, and besieged the house of the interrex M. Aemilius Lepidus. It determined the composition of the court and the penalty to be inflicted.[2852] Of his statute de iure magistratuum, passed in the latter year, that article only is known which reiterated the law of 63 for prohibiting candidacies in absentia. But as a plebiscite had been passed earlier in the year to dispense Caesar from the law of 63,[2853] and as Pompey did not dare antagonize him by abolishing the plebiscite here mentioned, he secured the adoption of an additional law for excepting such candidates as had been or should be dispensed by comitial action.[2854] But Caesar’s prospect of passing immediately from his Gallic command to a second consulship was more effectually blocked by Pompey’s lex de provinciis, which, embodying a senatus consultum of the previous year,[2855] ordered that five years should intervene between the expiration of a magistracy and the beginning of the corresponding promagistracy.[2856] The general purpose was to dampen the ardor of the ambitious, who sought praetorships and consulships merely as a stepping-stone to lucrative and influential commands in the provinces. Its immediate effect, however, was to precipitate the conflict between Caesar and Pompey which brought the republic to ruin. The relation of the law to this event requires explanation. In the Pompeian-Licinian act of 55 for prolonging Caesar’s command measures were taken that the senate should not discuss the question of succession to him before March 1, 50. According to the Sempronian law,[2857] therefore, the senate could assign his provinces to no consuls earlier than those of 49; hence Caesar would continue in command during that year while suing for the consulship for 48. But by the Pompeian law of 52 the Sempronian was abolished, and the[450] senate was given an opportunity to appoint a successor to him on or after March 1, 50.[2858]

From the close of the second consulship of Pompey to the beginning of Caesar’s dictatorship there was no important legislation.[2859]

III. The Decline of the Republican Comitia
From 49 to about 30

With the dictatorship of Caesar begins the last stage in the life of the republican comitia. For them it was from the beginning of his supremacy essentially a time of decline. Although Caesar continued to submit his plans to the assemblies for legalization, he rapidly concentrated in his own person powers and functions hitherto exercised by the people; and the triumviri, his successors, after a sham-republican interregnum, constituted in law as well as in fact a three-headed despot. Mention will first be made of the comitial acts which conferred powers and honors on Caesar during his life. In 49 when news of his success in Spain reached Rome, M. Aemilius Lepidus, a partisan who was then urban praetor, persuaded the tribes to adopt a resolution empowering the author to name Caesar dictator.[2860][451] Entering upon this office after his return to Rome, about the end of November, Caesar used it to secure the ratification of laws—to be considered hereafter—and to hold the electoral comitia. After eleven days he resigned. At this election he was chosen consul with P. Servilius Vatia as colleague.[2861] About the middle of October, 48, when the senate and people heard of the death of Pompey, they conferred on him by law (1) absolute judicial authority over the partisans of Pompey,[2862] (2) the right to make peace and war at his own pleasure, the pretext being the development of opposition to him in Africa, (3) the right to be candidate for the consulship five years in succession,[2863] (4) the dictatorship for an indefinite period, to which he was appointed by his colleague in the consulship,[2864] (5) the tribunician authority for life, with the privilege of sitting with the tribunes, (6) the right to preside at the election of all patrician magistrates, for which reason the comitia were postponed till his return to the city, (7) the right to assign the pretorian provinces according to his own judgment, (8) the right to triumph over Juba, king of Mauretania, though at that time he did not know there was to be a war with that state.[2865] Near the end of April, 46, when news came of the victory at Thapsus, the Romans granted him (1) the censoria potestas with the title of praefectus morum for three years, (2) the annual dictatorship for ten years, (3) the right to nominate candidates for both ordinary and extraordinary offices. These powers were doubtless conferred by comitial action. At the same time great honors were heaped upon him, probably through senatus consulta.[2866] Again in April, 45, after the battle of Munda honors were showered on him in still greater profusion.[2867] Politically the most important were the lifelong, hereditary title of imperator, which he bore as a second[452] cognomen,[2868] the sole right to command soldiers and to manage the public funds, the privilege of being consul ten years in succession (which he did not use), the prefecture of morals and the dictatorship for life, and finally deification under the title of the “Invincible God.”[2869] In fact for the remainder of his life there was no cessation in the bestowal of divine and human honors. Among those of his last year were the tribunician sanctity[2870] and the right to have as many wives as he pleased—the latter granted by a plebiscite of C. Helvius Cinna.[2871] The theocratic monarchy which the Romans were erecting for him on the ruins of the republic left no independence to the senate or the assemblies. The functions of the latter were especially abridged by the large power of nominating and appointing officials possessed by the monarch.[2872] His important legislative plans, however, he brought before the people, preferably in their tribal comitia.

In December, 49, after returning from Spain, Caesar sought to relieve somewhat the distress of debtors and at the same time to quiet the general fear that he might decree a cancellation of all debts.[2873] This object he accomplished through a law, (1) that interest already paid should be deducted from the principal, (2) that the property of the debtor should be taken in payment of the balance—not at the low values then existing, but on the basis of ante-bellum prices, (3) that no one should hoard more than fifteen thousand denarii in cash.[2874] The third article was a renewal of an old law.[2875] Another statute,[2876] 47, released from a[453] year’s rent tenants of houses in Rome which brought the owner more than 2000 sesterces or of houses outside the city which earned more than 500.[2877] These houses were private property, and the law was therefore a partial abolition of private debts.[2878] Such prosperity came that in another year, 46, Caesar found it possible to cut down the number who received free grain from 320,000 to 150,000.[2879] He provided for the surplus population as well as for his veterans by colonies in Gaul, Spain, Africa, Macedonia, Greece, and Asia.[2880] Eighty thousand citizens found homes in these provincial settlements.[2881]

Among Caesar’s most admirable traits was his liberality in restoring to their civil rights those who were under disfranchisement and in granting the citizenship to aliens. At his suggestion M. Antonius, tribune of the plebs in 49, secured the enactment[454] of a plebiscite for restoring the ius honorum to the children of those whom Sulla had proscribed.[2882] Near the end of the same year, also at his request, the praetors and tribunes brought before the people and carried proposals for the recall of certain persons who had been exiled, unjustly as he believed, under the Pompeian law on ambitus.[2883] It was further at his suggestion that L. Roscius, probably praetor, enacted a comitial law for granting the citizenship to the Transpadani who at this time possessed simply the ius Latii.[2884] Another law of unknown authorship confirmed the grant of the franchise already made on his own responsibility to the people of Gades.[2885]

Among his administrative improvements was the increase in the number of praetors from eight to ten[2886] in 47, for which a comitial statute may be assumed.[2887] The people surrendered to[455] him a large part of their electoral right through the plebiscite of L. Antonius,[2888] December, 45, which granted him the privilege of nominating and presenting to the comitia a half of the candidates below the consulship.[2889] The degradation into which the ordinary magistracies had been brought by the supremacy of Caesar is indicated by the deposition of two tribunes of the plebs, C. Epidius Marullus and L. Caesetius Flavus, because of their opposition to monarchy, 44, through a plebiscite of their colleague, C. Helvius Cinna.[2890]

To the year 46 belongs Caesar’s legislation on judicial matters. First disqualifying the tribuni aerarii for jury service,[2891] he ordered through the comitia that the courts be composed exclusively of the senators and knights.[2892] The man who had been carried to supreme power on the shoulders of the common people now spurned even the most respectable of their number from association with himself in the administration.[2893] It is known that he enacted laws on individual crimes.[2894] A lex de vi and a lex de maiestate are mentioned,[2895] but it is not known in what they differed from those of earlier or later date.[2896] His sumptuary statute of the same year[2897] restricted the expense of the table,[2898][456] sepulchral monuments, dwellings,[2899] furniture, clothing, jewels, and other luxuries, covering the ground in great detail.[2900] A Cassian plebiscite empowered him to recruit the patrician rank[2901]—a means of creating a nobility devoted to himself, while supplying a religious need. A law proposed by himself (de provinciis) limited proconsuls to two years of command and propraetors to one,[2902] that in future they might not acquire such strength as to overthrow the civil authority, after the pattern set by the author of the regulation. It was by a vote of the people, too, that the famous lex Iulia municipalis was adopted, probably in the autumn of 46.[2903] Although there has been much controversy regarding the nature of the document,[2904] it is most probably a general municipal statute. Far from exhaustive, it had to be supplemented by special laws for the several cities.[2905] The extant fragment, which seems to begin with the second table, regulates (1) applications of citizens resident at Rome for free grain,[2906] (2) the aedilician supervision of the streets, buildings,[457] and games of the capital,[2907] (3) the qualifications for the magistracies and the decurionate in the municipia,[2908] (4) the introduction of the Roman census in the municipia,[2909] and (5) of individual Roman statutes in those municipia which enjoyed the laws of Rome.[2910] The inclusion of the capital with the cities of Roman rights throughout the empire in one general law marks the first step in the monarchical process of reducing Rome to the level of the municipia.[2911]

In comparison with the amount of reform work undertaken by Caesar the legislative activity of the people was remarkably slight. The growth of the monarchy wrought the decline of the comitia as well as of the senate; and the assassination of the monarch brought equally to the republic and to the assemblies but a short interval of pretended liberty.[2912] A lex proposed by the consul M. Antonius confirmed the acts of Caesar and established as law the plans which he left in writing at his death.[2913] It was arbitrarily used by the consul[458] for legalizing every whim of his own. His colonial law, passed shortly after Caesar’s assassination,[2914] seems to have been used by him for establishing in Italy a permanent support for himself.[2915] The last known agrarian law of the republic is that of his brother, L. Antonius, tribune of the plebs in the same year, 44. It ordered the distribution of the Pomptine marshes—which the author asserted were then ready for cultivation[2916]—and other extensive tracts.[2917] The execution of the measure was in the hands of septemviri,[2918] including the author[2919] and his two brothers.[2920] It was annulled in the following year by the senate on the ground that it had been violently passed.[2921]

Meantime the consul Antonius continued his legislation. An arbitrary act restored to the pontifical college its ancient right to appoint its chief in place of the long-used election by seventeen tribes.[2922] Next to colonization, however, his chief legislative interest was in the reform of the courts. He repealed the Julian statute concerning the qualifications of jurors;[2923] and instead of restoring the eligibility of the tribuni aerarii, he made up a third decury of retired centurions and other veterans.[2924] His law for granting an appeal to the people from the quaestiones de vi and de maiestate,[2925] had it remained in force, would as Cicero asserts have abolished these courts and have given free rein to mob violence, such as comitial trials for[459] these crimes must necessarily be under conditions as they then existed.[2926] Popularity was the aim of this measure as well as of his lex which forever abolished the dictatorship. Along with all his other laws they were annulled by the senate in February 43.[2927]

The establishment of the triumviri rei publicae constituendae in 43 practically abolished the functions of the comitia, as these three potentates usurped the right of filling all offices by appointment and of managing affairs according to their pleasure without consulting either the senate or the people.[2928] The power they had seized was legalized for a period of five years by the plebiscite of P. Titius, November 43, passed without regard to the trinundinum.[2929] The reference of business to the people was thereafter a rare indulgence. It may have been through a comitial act that the triumviri resolved upon building a temple to Serapis and Isis in the first year of their rule.[2930] We are less certain that the measure of Octavianus in 41 for a partial remission of rents was offered to the people.[2931] To the year 40 belongs the lex Falcidia, of P. Falcidius, tribune of the plebs, which permitted a man to bequeath no more than three-fourths of his estate, leaving one-fourth to his natural heirs.[2932] We need not be surprised to find that the rulers gladly allowed the people to vote them honors. In their first year they were awarded civic crowns by a comitial act, doubtless of the tribes;[2933] and in 35 the honors bestowed[460] upon Octavia and Livia probably came through a plebiscite, as did certainly the triumph voted to Octavianus.[2934] Last may be mentioned the law of L. Saenius, consul in 30, supported by a senatus consultum, which empowered Octavianus to create new patricians.[2935]

I. The Composition and Preservation of Statutes

Laws were drawn up in technically exact language. If the proposer of a rogation lacked the necessary knowledge, he sought the advice of learned friends.[2936] The bill, as first presented to the senate and published in the city on wooden tablets,[2937] was merely tentative; for discussion in the senate or the expression of public opinion might suggest changes[2938] or even induce the author to withdraw the proposal.[2939]

At the head of the law after its adoption was inserted the index and praescriptio,[2940] of which the consular lex Quinctia de aquaeductibus, accepted by the tribes in the year 9 B.C., offers a good example:[2941]

“T. Quinctius Crispinus consul populum iure rogavit, populusque iure scivit in foro pro rostris aedis divi Iulii pr(idie) K Iulias. Tribus Sergia principium fuit, pro tribu Sex.... L. f. Virro primus scivit.”[2942]

[463]

It contains the name of the rogator,[2943] his office, the body of citizens, whether populus or plebs, to which the proposal is offered, the place of the assembly,[2944] the date, the century (praerogativa) or the tribe or curia (principium) which voted first, and the name of the citizen who has been granted the honor of casting the first vote for his praerogativa or principium.[2945] If the senate has given its sanction, that fact is indicated by the insertion of the phrase “de s(enatus) s(ententia).”[2946] In case the proposal is by a tribune of the plebs, it is strictly a plebi scitum; but that its equivalence to a lex may be made clear, it is described as a lex plebeive scitum.[2947]

The body of the law is divided into chapters separated by spaces, sometimes numbered, and occasionally bearing individual titles.[2948] Last comes the sanction,[2949] which provides for the enforcement. Some laws, however,—termed leges imperfectae—lack this part.[2950] Usually the sanction prescribes the form of procedure according to which offenders are to be tried.[2951]

[464]

If the author of the new proposal has no desire to disturb any existing law, this fact is indicated by the insertion of the formula E(x) H(ac) L(ege) N(ihilum) R(ogatur).[2952] As a protection from the operation of earlier laws left in whole or in part unrepealed by the new statute, the latter is provided with a declaration that no attempt is hereby made to legalize anything illegal.[2953] By an analogous statement unconscious trespassing upon the rights of religion is rendered harmless.[2954] In accordance with a law of the Twelve Tables[2955] provision is further made against the consequences of conflict with other laws by the declaration that if any one in carrying out this law shall trespass against other statutes or senatus consulta, his act shall render him in no way liable to such earlier laws or decrees.[2956] A provision may also be added against illegal alteration or repeal.[2957] Sometimes the proposer includes an article for compelling senators and magistrates to uphold his law, should it be enacted,[2958] or for otherwise overcoming opposition to its enforcement,[2959] or for making repeal difficult.[2960] It becomes binding from the moment when the author announces its adoption by the comitia, excepting in case time has to be given the senators and magistrates for swearing to it.[2961][465] The law is then engraved on a bronze tablet,[2962] the original copy of which is kept by the quaestors in the aerarium.[2963] Other copies are posted in public places where all can read it.[2964]

II. Comitial Procedure

The tribal assembly convened under the presidency of a tribune or aedile of the plebs,[2965] in which case the gathering was technically the plebs;[2966] or as the populus under a patrician magistrate—dictator, consul, praetor,[2967] curule aedile,[2968] pontifex maximus,[2969] or any extraordinary magistrate who possessed the ius agendi cum populo.[2970] It met indifferently within or without the pomerium, usually on the Capitoline hill in the precinct of the temple of Jupiter,[2971] in the Forum and comitium,[2972] the Campus Martius,[2973] and within the latter in the Flaminian meadow or Flaminian Circus.[2974] Meetings called by tribunes had to convene within the first milestone, which bounded the authority of these officials,[2975] whereas we hear of a tribal assembly called by a consul in the military camp at Sutrium (357).[2976] The contio, described in an earlier chapter, was transformed into comitia by order of the presiding magistrate directing the people to take[466] their places in their respective tribes.[2977] Before this command was given a tribe was drawn by lot to receive the Latins who were at Rome.[2978] A second tribe was then drawn as a principium to cast the first vote.[2979] The bringing of the urn[2980] and the sortition were the last acts of the contio. To facilitate the division ropes were stretched across the Forum or other assembly-place, forming as many compartments as there were tribes.[2981] In time a permanent enclosure, termed Saepta,[2982] was built for the comitia.[2983] If the magistrate found that an entire tribe was absent, he assigned to it for the occasion a few citizens from some other, in order that in theory all thirty-five tribes—the universus populus Romanus—might be present.[2984] After the tribes were assembled in their comitia as here described, the principium was called to vote. This point terminated the right of[467] intercession[2985] and of obnuntiating an evil omen discovered in watching the sky.[2986] When the suffrage of the principium was given and announced,[2987] all the remaining tribes voted simultaneously.[2988] In earlier time a rogator stood at the exit of each saeptum, and received the oral votes of the citizens as they passed out one by one.[2989] After the introduction of the ballot,[2990] the state provided little tablets inscribed with abbreviations for “ut rogas” and “antiquo” for affirmative and negative votes respectively,[2991] and for elections blank tablets on which the names of the candidates could be written.[2992] They were deposited in boxes (cistae) placed at the exits above mentioned,[2993] under the charge of rogatores, who, having lost their original function, were now often, and more aptly, called custodes.[2994] They counted (diribitio) the ballots, and reported (renuntiatio) the results to the president.[2995] The latter had a right to announce to the public the returns from the tribes in whatever order he pleased, but he usually preferred to determine the succession by lot.[2996][468] In the election of any college of magistrates each citizen voted for as many candidates as there were places to be filled, and the announcements for each continued till a majority was reached in his favor. Precedence in honor within the college depended upon priority of election.[2997] The declaration of the vote by the praeco at the command of the president closed the comitial act.[2998] If for any reason the presiding magistrate discontinued the announcement before a majority was reached, the vote was without effect.[2999] The session of any assembly had to begin and end between sunrise and sunset.[3000]

The comitia curiata, presided over by the king, the interrex, and possibly by the tribunus celerum,[3001] and in the republican period by the dictator,[3002] consul,[3003] interrex,[3004] praetor,[3005] pontifex maximus,[3006] or rex sacrorum,[3007] met always within the pomerium,[3008] usually in the comitium,[3009] or for religious purposes in front of the Curia Calabra on the Capitoline hill.[3010] It was called together by a curiate lictor[3011] at the sound of the lituus or tuba.[3012] The pro