From what has been said on the judicial functions of the comitia in this and earlier chapters, it is clear that the jurisdiction of the people is inseparably connected with the political and constitutional history of Rome. Beginning feebly in the early republic, the right of appeal was most intensely exercised from the middle of the third to the middle of the second century B.C. Its decline thereafter, owing mainly to the rise of the quaestiones, was a symptom of the general decay of the republic.
Peter, C., Epochen der Verfassungsgesch. der röm. Republik, 118-140 (on the general character of the period); Ihne, W., History of Rome, iv. 125 ff., 171-3, 321-32; Mommsen, Röm. Staatsrecht, ii. 317-27, 491-7; Die Scipionenprocesse, in Röm. Forsch. ii. 417-510; Lange, Röm. Altertümer, ii. 582-93; Herzog, Gesch. u. Syst. der röm. Staatsverfassung, i. 811 f., 1177 f.; Greenidge, A. H. J., Legal Procedure of Cicero’s Time, 327-66; Mispoulet, J. B., Les institutions politiques des Romains, i. 228 f.; Willems, Droit public Romain, 175 ff.; Girard, P. F., Histoire de l’organisation judiciaire des Romains, i. 235 ff.; Hallays, A., Comices à Rome, 70 f.; Stella Maranca, Il tribunato della plebe dalla lex Hortensia alla lex Cornelia; Gerlach, De vita P. Cornelii Scipionis Africani Superioris; P. Cornelius Scipio Africanus der Aeltere und seine Zeit; Nissen, Kritische Untersuchungen über die Quellen der vierten und fünften Dekade des Livius, 213 ff.; Bloch, G., Observations sur le procès des Scipions, in Revue des études anciennes, viii (1906). 93-110, 191-228, 287-322; Pascal, C., Studi Romani, i: Il processo degli Scipioni; ibid. iii: L’Esilio di Scipione Africano Maggiore; Di un studio recente sul processo degli Scipioni, in Riv. d. storia ant. iv (1899). 268-71; Niccolini, G., La questione dei processi degli Scipioni, ibid. iii. fasc. 4 (1898). 28-75; articles in Pauly-Wissowa, Real-Encycl. i. 448-64: Aedilis (Kubitschek); 584-8: M. Aemilius Scaurus (Klebs); iv. 702-5: Comitia, part of (Liebenam); 1462-70: P. Cornelius Scipio Africanus Major (Henze); 1471-83: L. Cornelius Scipio Asiagenus (Münzer); v. 1324-7: Cn. Domitius Ahenobarbus (ibid.); Daremberg et Saglio, Dict. i. 95-100: Aedilis (Humbert); see also ibid. s. Comitia.
CHAPTER XV
COMITIAL LEGISLATION
From Hortensius to the Gracchi
287-134
I. An Era of Repose
287-232
The Hortensian enactment which raised the plebiscite to an equality with the lex and gave the tribunician initiative full constitutional freedom[2003] seems to have been especially calculated to prepare for a splendid outburst of legislative energy. No such result, however, was actually reached. Circumstances prove the leaders of the plebs to have been well satisfied with the political gains thus far made as regards (1) their place in the senate assured them by the Ovinian statute,[2004] (2) their right to the magistracies, confirmed by various laws, (3) the powers of the tribunate and its relation to the senate established by the Hortensian statute. Content with their position as a branch of the widened nobility, inferior neither politically nor socially to the patrician branch, and happy in the enjoyment of authority, they were now as much inclined as the patricians to discourage and to resist further aggression on the part of the plain citizens. Their control of the initiative in legislation was the chief means of forwarding this policy. Their respect for the senate, in which they were now rapidly becoming the dominant party, was such that they were willing to forego the recently acquired privilege of bringing their rogations before the people without the senatorial sanction. But in case a tribune was so bold and so out of harmony with his political peers as to offer an unsanctioned bill, they could count on the intercession of one of his colleagues; if matters came to an extremity, the senate could annul the act after its adoption by declaring it illegal or contrary to the auspices.[2005] Evidently the plebeian nobles were aware, too, that with the increase in the number of citizens and with their dispersion over Italy the assembly had ceased to represent the citizen body, and was failing in ability to grapple with the new and increasingly complex problems of administration created by the widening of the Roman domain.[2006]
Under these new conditions the assemblies continued, it is true, to elect their annual magistrates and to receive appeals from the judicial decisions of the latter, more rarely to declare war or to ratify a treaty. Occasionally they passed a law to increase the number of magistrates or to regulate elections; but for the fifty-five years following the Hortensian legislation, 287-232, there is no record of the enactment of a distinctly administrative law. The silence of history on this point is due not so much to the exceptionally scant sources[2007] as to a lack of comitial activity.
First among the statutes relating to the election of magistrates is to be placed the Maenian plebiscite, adopted in 287 or thereabout, which directed the patres in case of elections, as the Publilian statute had directed them in case of rogations,[2008] to give their auctoritas before the voting began, while the issue was still uncertain.[2009] Blocking the last efforts of the patricians to monopolize the consulship,[2010] the act completed the reduction of the patrum auctoritas to a formality. The sources represent Appius Claudius Caecus as the chief offender whom this law was designed to rebuke. His personality had brought to the censorship an enormous accretion of power which disturbed the constitutional balance. In this period that magistracy assumed also the function of supervising the morals of the citizens.[2011] To check this disproportionate growth a law, probably tribunician, of 265 forbade reëlection to the office.[2012]
The Romans created no more absolutely new magistratus ordinarii. In 267, however, probably by an act of the comitia tributa, they doubled the number of quaestors—from four to eight—in order that the new members of the college might attend to the financial business of the government at various points in Italy.[2013] A second praetor was created in 242,[2014] doubtless by a law, not only for jurisdiction inter peregrinos but also for increasing the number of magistrates available for military commands.[2015] The tresviri capitales, instituted in 289,[2016] were given the rank of magistrate by a plebiscite of L. Papirius, adopted after 242, which directed the urban praetor to elect these officials in the comitia tributa.[2017] In 241 the people, probably in tribal assembly, granted to L. Caecilius Metellus on account of his blindness the privilege of riding to the Curia in a carriage.[2018]
One statute referred to this period[2019] belongs to the domain of private law. The first chapter of the tribunician lex Aquilia provided “that if a slave of another man, or a quadruped of his cattle, be unlawfully slain, whatever within a year is the highest value thereof, that amount the offender shall pay to the owner.”[2020] The second chapter secured the principal stipulator against adstipulators, and the third provided for all other kinds of damage.[2021] It superseded all previous statutes on the subject, including that of the Twelve Tables.