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人性论 2 英汉对照 全四册 1st Edition Ying Xiu Mo full chapter download PDF
人性论 2 英汉对照 全四册 1st Edition Ying Xiu Mo full chapter download PDF
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d. Public roads.[2258]
e. Other portions of the public domain specifically designated 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 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 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 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 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 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.
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 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 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 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
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 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
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]
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