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 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 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 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 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 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, 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 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] 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 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: