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

by George Willis Botsford

CHAPTER XIV
THE JUDICIAL FUNCTIONS OF THE COMITIA TRIBUTA
From 287 to the End of the Republic

I. Tribunician Jurisdiction

Whereas the sources assume that the tribunes of the plebs as early at least as the decemviral legislation had cognizance of both finable and capital cases,[1925] an examination of the recorded trials leads to the conclusion that they made little use of this power till the period between the legislation of Publilius Philo (339) and that of Hortensius (287).[1926] Whether their activity after 339 was due to the Publilian enactment of that year[1927] or merely to the gradual evolution of popular rights cannot be determined. However that may be, it was not till after the Hortensian legislation that we find the tribunician jurisdiction at its highest point of development and free from every restriction.[1928]

The capital actions brought by the tribunes before the centuries in the period from Hortensius to the end of the republic have already been reviewed.[1929] We have now to consider the finable cases brought before the comitia tributa in the same period. It is characteristic of the era immediately following the Hortensian legislation, 287-232, described in the following chapter as politically stagnant,[1930] that only one tribunician prosecution is mentioned, and that against the consuls of 249 for contempt of the auspices. Appius Claudius Pulcher, one of the consuls, was fined a hundred and twenty thousand asses, after the action had been transferred from the centuries to the tribes in the way described in an earlier chapter.[1931]

In accord with the spirit of the Flaminian era, 232-201, on the other hand, is the prosecution of the retired consuls, M. Livius Salinator and L. Aemilius Paulus, on the ground that they had unjustly distributed the booty gained in war. Technically the charge seems to have been peculatus;[1932] it was brought before the tribes in 218, doubtless by tribunes of the plebs. Aemilius narrowly escaped condemnation; Livius was fined. The popular feeling against them was extremely bitter.[1933] In 214 M. Atilius Regulus and P. Furius Philus, censors, degraded to the condition of aerarius[1934] L. Caecilius Metellus,[1935] who after the battle of Cannae had tried to persuade the knights to abandon Italy.[1936] He was elected tribune of the plebs for the following year, and made use of his office in an attempt to prosecute the censors before the close of their administration. His purpose was thwarted, however, by the intercession of the remaining nine tribunes,[1937] who in this way saved for a time a conservative principle of the constitution—the inviolability of the magistrate from prosecutions while in office.[1938] The trial of Postumius the publican, beginning in a finable action and ending as perduellio, has been treated elsewhere.[1939] In the same period falls the trial of the tresviri nocturni for appearing too late at a fire. They were accused by the tribunes and condemned by a vote of the tribes.[1940]

The era of the full-grown plutocracy, 201-134, is characterized by the great number of prosecutions of eminent persons for political objects. M. Porcius Cato was several times brought to trial for the conduct of his consulship, 195, with the result that the speeches delivered in his own defence filled a volume.[1941] In 189 M’. Acilius Glabrio, then candidate for the censorship, was accused of peculatus of booty by two tribunes in a finable action of a hundred thousand asses. The crime was alleged to have been committed in the preceding year, when as proconsul the accused gained over the Aetolians and Antiochus a victory by which he won the right to a triumph.[1942] Cato, formerly his military tribune and now a competitor for the censorship, appearing as a witness, delivered at least four speeches against him. These proceedings forced Acilius to drop the candidacy, whereupon the accusation was withdrawn.[1943] The attack upon this man is to be regarded as a manoeuvre of Cato and his supporters against his political adversaries, the Scipios, who numbered the accused among their friends. In 185 Cato was ready for a direct assault. In that year two of his supporters, both named Q. Petillius, tribunes of the plebs, made in the senate at his instance a demand that L. Scipio Asiagenus[1944] should render an account of the three thousand talents paid him as war indemnity by Antiochus among the conditions of peace. His brother Publius, knowing well that the blow was in reality aimed at himself, resolved to measure his full strength with that of his adversaries. When accordingly the record of the transaction was produced, Publius, complaining that an account of three thousand talents should be demanded of a man who had brought fifteen thousand into the treasury from booty, tore the document in pieces.[1945] In this proceeding he kept strictly within his legal rights.[1946] Nothing further seems to have been accomplished for the present;[1947] but M. Naevius, tribune of the plebs, after entering office December 10, 185, brought against Publius Scipio a prosecution, not for peculatus, but for official misconduct. The specific charge was that in return for the restoration of his son from captivity he, as legatus of his brother, had granted too favorable terms of peace to Antiochus. In the first contio the accused recited his services to the state; in the second, which happened to fall on the anniversary of his victory over Hannibal, he invited the people there assembled to go with him to the Capitoline temple to give thanks to Jupiter, Juno, Minerva, and the gods who kept the place, for having endowed him with the will and the ability to achieve that and other similar deeds in behalf of the commonwealth.[1948] Naturally the dissolution of the assembly vexed the tribunes. Before the day came for the third contio he withdrew from Rome. His brother tried to excuse his absence on the plea of sickness, and Ti. Sempronius Gracchus, tribune of the plebs, prevented his colleagues from causing further annoyance to the great man. The general circumstances indicate that the trial was to take place before the tribes, and that the penalty in case of conviction was accordingly to be a fine. His brother was still in danger. Early in 184 C. Minucius Augurinus brought a finable action[1949] against Lucius concerning the money received from Antiochus.[1950] He was condemned by the tribes, whereupon the prosecutor demanded surety (praedes) for the payment of the fine. But when Scipio failed to comply, the tribune attempted to imprison him. Returning suddenly to Rome, Publius appealed to the tribunes in behalf of his brother. Whereas eight members of the college sustained the prosecutor, one of them, Ti. Gracchus, prevented the imprisonment and consequently the collection of the fine.[1951] But the total result of the proceedings was the overthrow of the Scipios, and the conqueror of Hannibal retired heart-broken to his country estate.[1952]

In the same year, 184, M. Porcius Cato, at that time censor, was prosecuted for official misconduct by tribunes in a finable action for two talents, but was in all probability acquitted.[1953] In this period the tribes must have been unusually active in a judicial capacity,[1954] as Cato was himself prosecuted forty-four times, often doubtless before the comitia tributa, but was always given a favorable verdict.[1955]

C. Lucretius, praetor in 171, was accused in the senate by Chalcidian ambassadors of merciless cruelties and robberies perpetrated by him on their community. Thereupon two tribunes of the plebs, M’. Juventius Thalna and Cn. Aufidius, prosecuted him before the people, technically on a charge of furtum and iniuria. He was condemned by all the tribes to a fine of a million asses.[1956] But after 149 most cases of misgovernment in the provinces came before the quaestio repetundarum instituted in that year.[1957] There were occasional prosecutions for beginning war without authorization.[1958] Toward the end of the pre-Gracchan oligarchy C. Laelius Sapiens, the friend of Scipio Aemilianus, seems to have been brought to trial for malversation in his consulship of the year 140, but was probably acquitted.[1959] A peculiar case, yet characteristic of the time, was that against Cn. Tremellius, praetor in 160, for having “contended injuriously” with the supreme pontiff. It is stated merely that he was fined. If the action came before the people, it must have been brought by a tribune, as the pontiff’s jurisdiction was restricted, so far as is known, to the sacerdotes under his supervision. Whatever may have been the procedure, the effect was to place the religious official above the magistrate[1960]—a policy which could be expected of the generation that adopted the Aelian and Fufian laws.[1961]