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was forbidden by usage;[2068] but in the period between the first and
second Punic wars the right was extended to relatives of the fifth and
sixth degrees,[2069] and shortly afterward to those of the fourth
degree (consobrini).[2070] Another law, the lex Atilia, enacted
between 242 and 186,[2071] probably in the second Punic war,[2072]
directed the urban praetor to appoint a tutor for a woman or child
who was left without a natural protector.[2073] It now became
possible, too, for a magistrate under justifying circumstances to
place a young man under twenty-five in the care of a curator, in
accordance with the Plaetorian law,[2074] which was enacted before
192,[2075] and which belongs therefore to the Flaminian age.[2076]
In the same period we find the comitia active in other fields. In 215
a tribal law of an unknown author granted the citizenship to three
hundred Campanian knights who had remained faithful to Rome, and
assigned them to the municipium of Cumae.[2077] Following a
precedent set by the Antistian plebiscite of 319,[2078] L. Atilius,
tribune of the plebs in 210, carried a law, in pursuance of a senatus
consultum, for granting the senate absolute power over the
Campanians who had revolted;[2079] and the senate accordingly not
only punished them with loss of citizenship but reduced them to
miserable subjection.[2080] The right of the comitia to ratify a vow of
a sacred spring was recognized in 217 by an opinion rendered by
the pontiffs,[2081] and was first exercised through a plebiscite of that
year.[2082] The appointment of commissioners for the dedication of
temples also belonged to the assembly,[2083] as well as the
regulation of religious festivals.[2084] The greatest gain made by the
people within the province of religious legislation in the third century
b.c. was the provision for electing the pontifex maximus by
seventeen tribes drawn by lot from the whole number thirty-five and
presided over by a pontiff. This innovation probably belongs to the
Flaminian era and certainly to the time before 212, when the first
instance of such an election is given.[2085] The act was followed by
another, before 209, which authorized the election of the chief curio
in the same way.[2086] The object was to take the control of these
places from the nobles, who looked upon the great sacerdotal
collegia as a main support of their political power.[2087] It was but the
beginning of a movement for transferring the appointment of all
members of these collegia to the comitia sacerdotum, made up as
above described. In the peculiar composition of assemblies of this
character we see an attempt to make the gods in some degree
coadjutors of the populace in filling the sacred places.[2088]
The assembly was merely exercising a long-recognized right[2089]
in the institution of two new praetors in 227, for which we are
warranted in assuming a legislative act.[2090] The same observation
applies to the increase in the number of elective military tribunes
from sixteen to twenty-four in 207,[2091] which was evidently a
concession to the commons. As the senate generally attended to the
prolongation of the imperium,[2092] the confirmation of a senatorial
decree to that effect by an act of the people in 208[2093] was
exceptional. Far more radical was the plebiscite of M. Metilius, 217,
for equalizing the power of the dictator with that of the master of
horse.[2094] This act and the resort to election for filling the
office[2095] destroyed the value of the institution.[2096] A violent
departure from usage was attempted in 209 by the rogation of C.
Publicius Bibulus, tribune of the plebs, for abrogating the proconsular
imperium of M. Claudius Marcellus. On this occasion not merely the
plebs but all classes attended the assembly, which by an
overwhelming vote rejected the proposition.[2097] Three quarters of a
century were to pass before a law of the kind could actually carry.
[2098]
From what has been given above it is clear that Flaminius began a
new era in legislation, by no change in the constitution, but rather by
assuming the free initiative granted the tribunes of the plebs through
the Hortensian statute. Under the influence of his personality the
comitia recovered the share in the administration which they had lost
in the half century of lethargy just passed, and even made new
inroads into the province of magisterial and senatorial authority.
While the disaster at Cannae, following hard upon that of Trasimene,
subdued the rising spirit of popular independence, it made the
senate more conciliatory,[2102] with the result that neither did the
comitia lapse into its former repose nor did the nobles lose their hold
on the government. It was to this era, more definitely to the opening
of the war with Hannibal, that the description of the constitution by
Polybius[2103] applies. The political condition of Rome was
improving,[2104] or was just at its zenith.[2105] As the senate was at
the height of its power, public measures were deliberated upon, not
by the many, but by the best men.[2106] Political life was sound,
elections were pure, and a scrupulous fear of the gods remained the
strongest support of the commonwealth.[2107] At this epoch the three
chief constitutional elements—magistrates, senate, and comitia—
were so perfectly balanced that even a native would hardly be able
to say whether the form of government was monarchy, aristocracy, or
democracy.[2108] In this equilibrium of forces, in this mutual power of
checking or strengthening, lay the might and the excellence of the
constitution.[2109]
It is solely with the place of the assemblies in this system that we
are at present concerned. Inasmuch as the consuls were supreme
masters of the home administration, as well as of the actual conduct
of war,[2110] and as the senate controlled finance, diplomacy, and all
interstate judicial business affecting the Italian allies,[2111] what part
in the government could have been left to the people? Polybius
answers a most weighty part. They are constitutionally the sole
fountain of honor and punishment, by which alone governments and
societies are held together. Not only are they in a position to
discriminate between the fit and the unfit in elections to office, but
they are the sole court for trying cases involving life and death. The
death penalty, however, may be avoided by voluntary exile, if
undertaken before a majority has been reached in the process of
voting.[2112] Even finable actions in which the proposed penalty is
considerable, especially when the accused has held a higher
magistracy, come before them. It is they who bestow offices on the
deserving—the most honorable reward which the constitution grants
to virtue. It is they who have absolute power to decide concerning
the adoption or repeal of laws; and most important of all, it is they
who deliberate concerning war and peace, and who ratify or reject
proposals for alliances, truces, and treaties.[2113] These facts might
lead one to suppose that the supreme power is with the people and
that the government is a democracy.[2114] In the domestic
administration the consuls are dependent on them for authorizing
various kinds of business and are under obligations to execute their
decrees.[2115] In war, however distant from home, the consul must
still court their favor, to secure their ratification of his arrangements
for peace; and on laying down his office he is liable to prosecution
before them for maladministration.[2116] Hence he can afford to
neglect them no more than he can the senate.[2117]
The senate, too, is dependent upon the people for ratifying all
serious penalties imposed by the courts, which are made up of
senators.[2118] Similarly in matters directly concerning that body, the
people have power to accept or reject proposals for diminishing its
traditional authority, for depriving its members of dignities or offices,
or even for lessening their means of livelihood.[2119] But the greatest
popular restriction upon its authority is the tribunician veto, which can
prevent it from passing a decree or even from holding a meeting. As
the tribunes are under obligations to carry into effect the decisions of
the people and in every way to have regard for their wishes,—for this
and for the other reasons mentioned, the senate respects the people
and cannot fail to neglect their feelings.[2120]
From the foregoing remarks of Polybius it is clear that in the
political theory of his time the will of the multitude when expressed
by a comitial act prevailed, in other words that the people were
sovereign. Several checks on their action from the side of the senate
and magistrates he mentions, especially the absolute power of life
and death exercised by the consuls in war over those under their
command,[2121] and the control over the citizens wielded by the
senate through the management of public contracts and through
filling the courts from its own number. But the most important
limitation, implied throughout this discussion though never expressly
mentioned, is the lack of popular initiative. The people could
convene for no business whatever unless summoned by a
magistrate. They could consider no other subject than that proposed
to them by the president; they could take no part in the deliberation
excepting in so far as the president granted permission to
individuals; they could merely vote yes or no on the question
presented to them.[2122] Notwithstanding the theory of popular
sovereignty these conditions prevented the rise of a real democracy;
they placed the assemblies under the control of the magistrates, who
as a rule, including even the tribunes, were willing ministers of the
senate. The bridled masses were rendered more obedient by the
disasters of the war with Hannibal, and the nobles were soon to grow
arrogant and violent through a surfeit of wealth and power.[2123]
Under these new circumstances the docility of the commons made
possible the thorough organization of plutocracy on the basis of a
democratic theory of government.
Schulze, C. F., Volksversammlungen der Römer, 100-10; Peter, C., Epochen der
Verfassungsgesch. der röm. Republik, 118-140 (on the general character of the
period); Ihne, W., History of Rome, bk. vi; Long, G., Decline of the Roman
Republic, I. chs. v, vii, viii; Mommsen, Th., History of Rome, bk. III, ch. xi; Röm.
Staatsrecht, see index s. the various laws; Lange, L., Röm. Altertümer, ii. 116-351,
and see index s. the various laws; De legibus Aelia et Fufia commentatio, in Kleine
Schriften, i. 274-341; Neumann, C., Geschichte Roms, I. ch. i; Nitzsch, K. W., Die
Gracchen und ihre nächsten Vorgänger, bks. i, ii; Willems, Droit public Romain,
178 ff.; Mispoulet, J. B., Les institutions politiques des Romains, I. 220 ff.; Hallays,
A., Les comices à Rome, 67 f.; Maranca, Il tribunato della plebe dalla lex Hortensia
alla lex Cornelia; Arndts, Die lex Maenia de dote vom Jahr der Stadt Rom 568, in
Zeitschr. f. Rechtsgesch. vii (1868). 1-44; Voigt, M., Die lex Maenia de dote vom
Jahre 568 der Stadt; Die lex Fabia de plagiariis, in Verhdl. d. sächs. Gesellsch. d.
Wiss. xxxvii (1885). 319-345; Savigny, F. C. von, Lex Cincia de donis et
muneribus, in Vermischte Schriften, i. 315-85; Ueber die lex Voconia, ibid. i. 407-
46; Schutz der Minderjährigen und die lex Plaetoria, ibid. ii. 321-95; Garofalo, F. P.,
Lex Cincia de donis et muneribus, in Bull. dell’ ist. di diritt. Röm. xv (1903). 310-2;
Krüger, P. and Mommsen, Th., Anecdoton Livianum, in Hermes, iv (1870). 371-6;
Babelon, E., Monnaies de la république Rom. i. 37-69; Hill, G. F., Greek and
Roman Coins, 44 ff.; Haeberlin, E. J., Del più antico sistema monetario presso i
Romani, V, in Rivista Italiana numismatica e scienze affini, xix (1906). 611-46;
Cunz, O., Polybius und sein Werk; Pais, E., L’elezione del pontefice massimo
Romano per mezzo delle xvii tribù; articles in Pauly-Wissowa, Real-Encycl. i. 576-
80: L. Aimilius Paullus (Klebs); ii. 2728 f.: Baebius (idem); iii. 2738-55: M. Claudius
Marcellus (Münzer); iv. 1112-38: Consul (Kübler). Grenfell, B. P., and Hunt, A. S.,
Oxyrhynchus Papyri, iv (1904). 90-116 for the newly discovered epitome of Livy,
including text and commentary. The lost books xlviii-lv, covering the years 150-137,
are represented. See also Kornemann, E., Die neue Livius-Epitome aus
Oxyrhynchus, in Beitr. zur alt. Gesch. Beiheft ii (1904); Sanders, H. A., The
Oxyrhynchus Epitome of Livy, in Trans. of the Am. Philol. Assoc. xxxvi (1905). 5-
31, and a brief notice by Liebenam, W., in Jahresb. d. Geschichtswiss. xxvii
(1904). 124 f.
CHAPTER XVI
COMITIAL LEGISLATION
From the Gracchi to Sulla
134-82
I. The Gracchi
134-122