BOOK VI. With regard to legislation, the comitia centuriata lost even more of their ancient authority than they did in their influence upon foreign affairs. After the peace between powers of patricians and plebeians the legislation completely passed Legislative the comitia. Increasing importance of the comitia of tribes. over into the hands of the comitia tributa. After the Hortensian law (287 B.C.), there is no indication of laws having been passed in the centuries. In the fully-developed republican constitution we can therefore regard the comitia centuriata as being limited on the whole to the election of the highest magistrates, to the formal decision in questions of peace and war, and to the supreme penal jurisdiction. Whilst the public action of the comitia centuriata was shrinking within narrower limits, the assemblies of the tribes gained more and more ground. From the moment. the tribuneship was established the rights of the plebeians steadily increased, and with them grew the competency of their comitia. On the foundation of the leges sacrate the omnipotence of the tribunes of the people and of the decrees of the plebeian tribes was gradually built up. The right of making laws binding on the whole people was formally granted to the plebs by the Publilian law in the year 471 B.C., and was repeatedly confirmed after the second and after the last secession by the laws of 449 and 287 B.C. With the last of these laws, the Hortensian law, the long struggle of the two classes came to an end, and the republic reached the highest development, which carried it victoriously through all the wars for the dominion of the world. But even before this last formal I have endeavoured to show (Rhein. Museum, 1873, pp. 353-379) that the three laws which conferred on the tribes the full right of legislation for the Roman people-the Lex Valeria Horatia of 449 B.C., the Lex Publilia of 339 B.C., and the Lex Hortensia of 287 B.C.-were substantially identical, and that the Lex Publilia of 471 B. C. ought to be considered as the foundation or original charter of all these laws which established the democratic constitution. I have, moreover, suggested that this Publilian law of 471 B.c. ought to be substituted for the Publilian law of 339 B.C.; that the latter had nothing to do with the confirmation or extension of the right of the tribes; that it ought to be struck out of the list of the three laws affecting the legislative rights of the plebeians; and that it was only inserted in this list by a mistake, being confounded with the Publilian law of 471 B.C. acknowledgment of their unlimited competency, the comitia tributa had assumed and practically exercised the right of legislation and of determining the actions of the executive in a manner corresponding to the admitted sovereign rights of the people. The constitutional development of the republic is principally the work of the comitia tributa. By degrees the comitia centuriata now retire from the field of legislation, which remains in undisputed possession of the younger and more democratic assembly. Public law and private law were both elaborated by a long line of plebiscites. Thus the prerogatives of the magistrates were more accurately defined by the Porcian laws, which restricted their power of inflicting corporal punishment; the age requisite for filling the various magistracies in succession was fixed by the lex annalis of the tribune L. Villius (180 B.C.); the number of quæstors was raised to eight (267 B.C.); re-election of the same person to the censorship was prohibited (265 в.C.); a prætor peregrinus was appointed (probably 242 B.C.); two prætors were appointed for the provinces (227 B.C.); the number of prætors was increased to six (198 B.C.); the senators were forbidden to engage in commercial transactions (219 B.C.). All these plebiscites refer to public law. Of the large number of enactments passed by the assembly of tribes in the department of private law we will mention only the Voconian law, on the right of women to inherit property (169 B.C.), and the Sempronian law (193 B.C.), on debts contracted by allies. The great change effected in the mode of criminal prosecutions through the establishment of permanent law-courts (the quæstiones perpetua) is also attributable to the comitia tributa, which in the year 149 B.C. established the first law-court of this kind through the Lex Calpurnia; and thus it is evident beyond dispute that the comitia tributa were throughout the whole period acknowledged as that assembly by which the Roman people exercised their sovereign legislative rights. With little success, also, though with never daunted CHAP. I. BOOK Executive power of of tribes. zeal, the popular legislators endeavoured to improve public morality by a series of luxury laws-for instance, the Lex Oppia (215 B.C.), which will be discussed lower down. The tribes made dispositions affecting the state property, as we see by a law (the Plebiscitum Lucretium, 172 B.C.) regarding the farming of the revenues of Campania. Nay, even matters of religion and public worship were settled by plebiscites; thus, for instance, in the year 208 B.C. a decree of the tribes introduced the Apollinarian games in Rome. Apart from this extensive legislative power, the comithe comitia tia of tribes had the right to decide in all questions of administration and government. In conformity with the spirit of the constitution, the people entrusted all matters of government and administration to the magistrates elected by them, who were assisted by the senate as permanent councillors. It was taken for granted that the magistrates would carry out the intention of the people who had appointed them. It was therefore advisable, whenever there was any doubt concerning the popular inclination, to consult the will of the people in important questions, and thus it happened that the Roman tribes were called upon to take an actual part in the government in a manner which almost threatened the permanence of the aristocratic rule. Conduct of foreign policy. Of all the more important political decisions, the only one which remained uncurtailed in the hands of the comitia centuriata was the declaration of war.2 On the The cases are very numerous in which administrative questions were decided by the people (Lange, Röm. Alterth. ii. p. 166, 629 ff.). An instance which occurred in the year 169 B C. is especially instructive. In that year Rutilius, a tribune of the people, attacked the censors for their proceedings in managing the public contracts and the collection of the revenue. He declared he would ask the people to annul the censorian contracts. Liv. xliii. 16, 6: Rogatio sub unius tribuni nomine promulgatur, quæ publica vectigalia aut ultro tributa C. Claudius et Ti. Sempronius locassent, ea rata locatio ne esset; ab integro locarentur. The dispute led to a formal impeachment of the which was a violent and illegal stretch of the tribunician power, and caused a great constitutional conflict. But the right of the people to cancel an administrative measure of the censors was not questioned by anyone. censors, 2 See above, p. 20. 4 other hand, treaties with foreign states and alliances were generally presented for approval to the comitia tributa,1 whereby the final decision on all points of foreign policy was placed in the power of this assembly. Closely allied to this was the right of the tribes to interfere in the detail of the management of war,2 to prorogue the imperium,3 nay, even to confer it on men who had not been consuls the year before or at all, to allot provinces to the generals, and to mark out to them the line within which they were authorised to command. Thus in the year 202 B.C. Scipio by a decree of the tribes obtained the prolongation of his command in Africa and the right to conclude peace with Carthage. Similarly in 147 B.C., the younger Scipio obtained the province of Africa, and afterwards, in 134 B.C., the command in Spain, by an extraordinary decision of the assembly of tribes." CHAP. I. revenue. There was one department in which the share of the Finance people in the government of the state was fraught with and great danger. This was the disposal of the public funds, the use to be made of the ager publicus, the sending out of colonies and the provision to be made for poor citizens by allotments of land. Here was an unsound spot in the otherwise healthy organisation of the Roman commonwealth, and here the irregular manner of disposing of public property produced evils of the greatest magnitude. 1 Lange (Röm. Alterth. ii. p. 632) gives a complete list of such public treaties. 2 Even in the critical period of the Hannibalic war the popular assembly of the tribes ventured to meddle directly with military matters. A plebiscitum decreed that Minucius, the Master of the Horse, should have an equal command with the dictator Fabius. Liv. xxii. 25. Polyb. iii. 103, 106. See vol. ii. p. 223. 3 Liv. xxvii. 22, 6. In the prorogation of the imperium the annalists generally omitted to mention the vote of the people, so that it almost appears that a decree of the senate alone was sufficient. Compare what has been said above, p. 21, on the omission by the annalists of the co-operation of the comitia in treaties of peace. Liv. xxiii. 30, 19; xxvi. 2, 5. See Lange, Röm. Alt. i. p. 629. 5 Vol. ii. p. 456. Liv. xxx. 27, 3; xxx. 40, 9. • Vol. iii. pp. 353, 403. Liv. epit. 51. Valer. Max. viii. 15, 4. Appian, Libyc. 112. BOOK Absence of opposition to The custom of allowing conquered land to be occupied by the first comer had even in the most ancient times led to abuse on the part of the rich, and to the oppression of the weak and poor. The agrarian law of Licinius' was a vain endeavour to restrain the rapacity and violence by which the nobility contrived to appropriate to themselves the fruits of victory. The patience with which the mass of the commons submitted to the selfish and even illegal proceedings of the nobles. the nobility would be indeed astonishing, if the general course of events did not show that there was no organised political opposition to the rule of the nobility during the whole period from the final peace between patricians and plebeians to the time of the Hannibalic war. In this long period the people were without leaders; the nobility, united in all political questions, were in fact all-powerful. The legislative omnipotence and sovereignty of the people was therefore a harmless theory which did not interfere with the government of the nobles, at least so long as no popular leaders stood up against the ruling faction. As soon as a resolute man placed himself at the head of the people to defend their material interests, the rule of the nobility would be overthrown, unless they resolved to oppose by force the right guaranteed to the people by the constitution. This time seemed to have arrived when, shortly before the Hannibalic war, a resolute statesman once more undertook to defend the cause of the people. Caius Flaminius was the first who, after a long interval,. offered a decided resistance to the hitherto untroubled rule of the nobility. In spite of the opposition of the senate, he proposed and carried a law for the distribution of the coastland of Picenum among poor settlers; a measure calculated to be salutary, not to the poor population alone, but to the whole state. This policy of C. Flaminius was regarded by the nobility as the first symptom of a decay of the old state of things, because it 2 Vol. ii. pp. 126, 194 ff. Career of 3 1 Vol. i. p. 314 ff. |