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

by George Willis Botsford

II. The Flaminian Era[2022]
232-201

Such is the scant list of legislative acts of the half century following the dictatorship of Hortensius (287-232), none of them as innovating as, for instance, the reform of the comitia centuriata brought about in approximately the same period by the power of the censors alone.[2023] The nobles had a certain degree of reason for feeling secure in their control of the administration. But in this respect they miscalculated. The long war with Carthage, which had diverted the attention of all the citizens from politics, ended without bringing in the wake of victory the usual rewards to the masses. No lands in Sicily were assigned to the citizens, while on their northeastern border the Picene district and the territory recently taken from the Gauls in the neighborhood of Ariminum were reserved by the nobles for their own occupation. Popular discontent at these short-sighted, selfish proceedings found expression in the rogation of C. Flaminius, tribune of the plebs in 232, for the assignment of the lands here mentioned to the citizens who were willing to settle on the frontier.[2024] It was vehemently opposed by the nobility,[2025] and was finally passed without the authorization of a senatus consultum.[2026] From a statement of Cicero[2027] that as long afterward as 228 Q. Fabius Maximus, then consul a second time, was hindering Flaminius from dividing the land, we may infer that the author of the law was elected among the tresviri charged with its administration.[2028] Most of the settlers in that region were assigned to the tribe Velina, probably in pursuance of an article of the Flaminian statute.[2029] The enactment came as a disagreeable interruption to the quiet happiness of the nobles—as a sign that the political battle fought out between comitia and senate in the period ending with the Hortensian legislation was to be renewed with perhaps even greater bitterness. Hence Polybius, echoing the complaints of the nobles, denounces the measure as the first step toward the demoralization of the people.[2030] The lasting hatred felt by the senators for this new and powerful enemy is seen in their refusal to grant him a triumph for military successes he had won as consul in 223. A plebiscite without their authorization gave the desired privilege to the champion of popular rights.[2031] It was probably in this connection—at least we are soon to hear of it for the first time—that an act of the people was made essential to a triumph within the city. Henceforth even when the senate was willing to allow a triumph or an ovation, the person thus honored could not hold imperium in the city on the day of such festival excepting by a comitial lex. Usually in cases of the kind the senate, after voting the privilege, instructed a praetor to request one of the tribunes to bring a rogatio de imperio before the tribes.[2032] The earliest known act of the kind is the plebiscite of 211 which granted the imperium to M. Marcellus, proconsul on the day of his ovation.[2033]

The popular party had not long to wait for an opportunity to retaliate upon the senate for the slight it had offered their champion. On the precedent of the Ovinian law[2034] the people had a right to legislate concerning the honors, privileges, and qualifications of its individual members.[2035] In 219 accordingly the plebiscite of Q. Claudius, known to have been supported in the senate by C. Flaminius alone, who was then censor, prohibited senators and their sons from owning sea-going ships of more than three hundred amphoras capacity.[2036] It was probably an article of this statute which forbade the same class of persons to take contracts from the government, with the reservation of such economically insignificant agreements as concerned worship.[2037] The peasants, whose interests Flaminius represented, opposed the renewal of the war with Carthage, regarding it as a means of extending the field of commerce and speculation of the nobles. This law therefore expresses the determination of the country people that the senatorial families should no longer share the advantages of such wars. From the point of view of the statesman it was the first step toward the separation of the governing class from the commercial class, with a view to guarding against the administration of the government in the sole interest of capital. The result was not all that could be desired; the senatorial families found secret ways of placing a great part of their funds in commercial companies; and in so far as the law was actually effective, it compelled senators to invest money in Italian land[2038]—a proceeding which contributed largely to the economic ruin of the peninsula.

In the administration of finance, which in spite of occasional interference on the part of the comitia remained with the senate, is included the regulation of coinage. The comitia passed few acts relating to the subject. The earliest known to history is the misnamed lex minus solvendi of C. Flaminius, consul in 217, which introduced the uncial standard for the as, making for ordinary use sixteen asses of an ounce weight equivalent to ten old—in other words, to the denarius.[2039] In the payment of soldiers, however, the denarius was still reckoned at ten asses.[2040] Probably the same law regulated the issue of plated silver denarii[2041] and of gold coins.[2042] The debtor’s gain was offset by the actual decrease in the weight of the as to a little more than an ounce before the enactment of the law.[2043] This measure was followed the next year by the plebiscite of M. Minucius, which created the triumviri mensarii, a banking commission for relieving the great lack of money (216).[2044] The board managed some of the financial business of the state,[2045] and undoubtedly did what it could to strengthen private credit, which at this time was at a low ebb.[2046] The next step taken by the comitia was the enactment of a plebiscite within a field properly belonging to the censors under senatorial supervision—the building and repair of public works.[2047] In 212 the act of an unknown tribune, carried through the comitia with the consent of the senate, created three temporary administrative boards—quinqueviri for repairing the defences of the city, triumviri to seek for property belonging to the temples and to register gifts, and another board of three for repairing the temples of Fortune, Mater Matuta, and Hope. These officials were to be elected by the tribes under the chairmanship of the urban praetor.[2048] Nearly related is the plebiscite of 210, which in pursuance of a senatus consultum directed the censors to farm the vectigalia of the Campanian territory.[2049] Evidently in the trying time of the war with Hannibal the senate found it advisable to conciliate the citizens by voluntarily bringing a few administrative measures of the kind before it. All this legislation was due more or less directly to the influence of Flaminius. A succession of sumptuary laws may be likewise traced to his second consulship, 217. The Twelve Tables contained a number of laws relating to funerals, designed to preserve good order and to prevent extravagant expense.[2050] After their ratification the authority of the magistrates and especially of the censors sufficed for the maintenance of good conduct, till in the period of the Punic wars the character of the people began to suffer deterioration, whereupon the assemblies undertook to enact new laws for the enforcement of morality. One of the earliest was the lex alearia, which prohibited the game of dice. Its mention by Plautus makes it prior to 204.[2051] The name of the author is not given; and for that reason we cannot be sure that it was a comitial law.[2052] To the same period belongs the plebiscite of P. and M. Silius concerning weights and measures.[2053] The first comitial sumptuary statute is the lex Metilia (217), probably tribunician, passed under the influence of C. Flaminius and L. Aemilius, who were censors in 220. It prescribed certain rules for the preparation of cloth.[2054] The object, in Lange’s[2055] opinion, was to strike at the luxury of the nobles through the guild of fullers. It was a warning to them, he asserts, which however they failed to heed. If this was indeed the object, the means were surprisingly feeble. The next sumptuary law was the plebiscite of C. Oppius, 215, directed against the luxury of wealthy women. It forbade a woman to wear more than a half ounce of gold or a dress of various colors or to ride in a carriage in a city or town or within a mile of either, excepting when engaged in public worship.[2056] The author must have sympathized with the tendency of Flaminius, and the law was supported, or at least not opposed, by the nobility. Twenty years afterward their best representatives strove in vain to maintain it against the rising tide of wealth and luxury.[2057]

The influence of Flaminius on legislation may be traced still farther. Under the economic distress of the war with Hannibal the plebs began to lapse into clientage to the nobles. In spite of the principle that the patron should accept no honorarium for legal service,[2058] the nobles began by the requisition of gifts to render the commons tributary to themselves.[2059] The chief occasion for these exactions was found in the Saturnalia, which was reconstituted in 217.[2060] To check the abuse the Publician plebiscite mentioned by Macrobius,[2061] undoubtedly of C. Publicius Bibulus, the popular tribune of 209,[2062] prohibited all gifts from the poor to the rich on that festival with the exception of wax candles. It was supplemented in 204 by the plebiscite of M. Cincius Alimentus,[2063] which absolutely forbade gifts and fees for legal service.[2064] The prohibition of a magistrate’s acceptance of gifts for the performance of official duty was undoubtedly included in it.[2065] Moreover it forbade all gifts above a specified amount, but with exceptions in favor of various relatives and benefactors.[2066]

It is not unlikely that the Flaminian age saw the earliest comitial legislation governing judicial procedure in private cases.[2067] Some changes were wrought, too, in family law by popular vote. In early time intermarriage between persons of the sixth degree of kinship was forbidden by usage;[2068] but in the period between the first and second Punic wars the right was extended to relatives of the fifth and sixth degrees,[2069] and shortly afterward to those of the fourth degree (consobrini).[2070] Another law, the lex Atilia, enacted between 242 and 186,[2071] probably in the second Punic war,[2072] directed the urban praetor to appoint a tutor for a woman or child who was left without a natural protector.[2073] It now became possible, too, for a magistrate under justifying circumstances to place a young man under twenty-five in the care of a curator, in accordance with the Plaetorian law,[2074] which was enacted before 192,[2075] and which belongs therefore to the Flaminian age.[2076]

In the same period we find the comitia active in other fields. In 215 a tribal law of an unknown author granted the citizenship to three hundred Campanian knights who had remained faithful to Rome, and assigned them to the municipium of Cumae.[2077] Following a precedent set by the Antistian plebiscite of 319,[2078] L. Atilius, tribune of the plebs in 210, carried a law, in pursuance of a senatus consultum, for granting the senate absolute power over the Campanians who had revolted;[2079] and the senate accordingly not only punished them with loss of citizenship but reduced them to miserable subjection.[2080] The right of the comitia to ratify a vow of a sacred spring was recognized in 217 by an opinion rendered by the pontiffs,[2081] and was first exercised through a plebiscite of that year.[2082] The appointment of commissioners for the dedication of temples also belonged to the assembly,[2083] as well as the regulation of religious festivals.[2084] The greatest gain made by the people within the province of religious legislation in the third century B.C. was the provision for electing the pontifex maximus by seventeen tribes drawn by lot from the whole number thirty-five and presided over by a pontiff. This innovation probably belongs to the Flaminian era and certainly to the time before 212, when the first instance of such an election is given.[2085] The act was followed by another, before 209, which authorized the election of the chief curio in the same way.[2086] The object was to take the control of these places from the nobles, who looked upon the great sacerdotal collegia as a main support of their political power.[2087] It was but the beginning of a movement for transferring the appointment of all members of these collegia to the comitia sacerdotum, made up as above described. In the peculiar composition of assemblies of this character we see an attempt to make the gods in some degree coadjutors of the populace in filling the sacred places.[2088]

The assembly was merely exercising a long-recognized right[2089] in the institution of two new praetors in 227, for which we are warranted in assuming a legislative act.[2090] The same observation applies to the increase in the number of elective military tribunes from sixteen to twenty-four in 207,[2091] which was evidently a concession to the commons. As the senate generally attended to the prolongation of the imperium,[2092] the confirmation of a senatorial decree to that effect by an act of the people in 208[2093] was exceptional. Far more radical was the plebiscite of M. Metilius, 217, for equalizing the power of the dictator with that of the master of horse.[2094] This act and the resort to election for filling the office[2095] destroyed the value of the institution.[2096] A violent departure from usage was attempted in 209 by the rogation of C. Publicius Bibulus, tribune of the plebs, for abrogating the proconsular imperium of M. Claudius Marcellus. On this occasion not merely the plebs but all classes attended the assembly, which by an overwhelming vote rejected the proposition.[2097] Three quarters of a century were to pass before a law of the kind could actually carry.[2098]

A plebiscite known to have been in force in the time of the second Punic war[2099] debarred from the tribunate and aedileship of the plebs any person during the lifetime of a father or grandfather who had filled a curule office. As the aim was to free the plebeian officials from the influence of the nobility, exercised through the patria potestas, that they might be in a better position to serve the interests of their constituents, we may reasonably suppose this measure to have passed in the time of Flaminius and under his influence. The tendency was to widen the breach then forming between the nobility and the commons.[2100] The right of the people to dispense from the law was acknowledged by the senate in 217, when, after the destruction of the army at Trasimene and the death of Flaminius, the patres authorized a plebiscite for dispensing the consulars for the remainder of the war from the Genucian plebiscite which forbade reëlection to the same office excepting after an interval of ten years.[2101]

From what has been given above it is clear that Flaminius began a new era in legislation, by no change in the constitution, but rather by assuming the free initiative granted the tribunes of the plebs through the Hortensian statute. Under the influence of his personality the comitia recovered the share in the administration which they had lost in the half century of lethargy just passed, and even made new inroads into the province of magisterial and senatorial authority. While the disaster at Cannae, following hard upon that of Trasimene, subdued the rising spirit of popular independence, it made the senate more conciliatory,[2102] with the result that neither did the comitia lapse into its former repose nor did the nobles lose their hold on the government. It was to this era, more definitely to the opening of the war with Hannibal, that the description of the constitution by Polybius[2103] applies. The political condition of Rome was improving,[2104] or was just at its zenith.[2105] As the senate was at the height of its power, public measures were deliberated upon, not by the many, but by the best men.[2106] Political life was sound, elections were pure, and a scrupulous fear of the gods remained the strongest support of the commonwealth.[2107] At this epoch the three chief constitutional elements—magistrates, senate, and comitia—were so perfectly balanced that even a native would hardly be able to say whether the form of government was monarchy, aristocracy, or democracy.[2108] In this equilibrium of forces, in this mutual power of checking or strengthening, lay the might and the excellence of the constitution.[2109]