The Roman assemblies from their origin to the end of the Republic

by George Willis Botsford

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 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 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 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 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 historical, the prosecution may possibly have been for perduellio, and in that case it would have come before the centuries.