It is solely with the place of the assemblies in this system that we are at present concerned. Inasmuch as the consuls were supreme masters of the home administration, as well as of the actual conduct of war,[2110] and as the senate controlled finance, diplomacy, and all interstate judicial business affecting the Italian allies,[2111] what part in the government could have been left to the people? Polybius answers a most weighty part. They are constitutionally the sole fountain of honor and punishment, by which alone governments and societies are held together. Not only are they in a position to discriminate between the fit and the unfit in elections to office, but they are the sole court for trying cases involving life and death. The death penalty, however, may be avoided by voluntary exile, if undertaken before a majority has been reached in the process of voting.[2112] Even finable actions in which the proposed penalty is considerable, especially when the accused has held a higher magistracy, come before them. It is they who bestow offices on the deserving—the most honorable reward which the constitution grants to virtue. It is they who have absolute power to decide concerning the adoption or repeal of laws; and most important of all, it is they who deliberate concerning war and peace, and who ratify or reject proposals for alliances, truces, and treaties.[2113] These facts might lead one to suppose that the supreme power is with the people and that the government is a democracy.[2114] In the domestic administration the consuls are dependent on them for authorizing various kinds of business and are under obligations to execute their decrees.[2115] In war, however distant from home, the consul must still court their favor, to secure their ratification of his arrangements for peace; and on laying down his office he is liable to prosecution before them for maladministration.[2116] Hence he can afford to neglect them no more than he can the senate.[2117]
The senate, too, is dependent upon the people for ratifying all serious penalties imposed by the courts, which are made up of senators.[2118] Similarly in matters directly concerning that body, the people have power to accept or reject proposals for diminishing its traditional authority, for depriving its members of dignities or offices, or even for lessening their means of livelihood.[2119] But the greatest popular restriction upon its authority is the tribunician veto, which can prevent it from passing a decree or even from holding a meeting. As the tribunes are under obligations to carry into effect the decisions of the people and in every way to have regard for their wishes,—for this and for the other reasons mentioned, the senate respects the people and cannot fail to neglect their feelings.[2120]
From the foregoing remarks of Polybius it is clear that in the political theory of his time the will of the multitude when expressed by a comitial act prevailed, in other words that the people were sovereign. Several checks on their action from the side of the senate and magistrates he mentions, especially the absolute power of life and death exercised by the consuls in war over those under their command,[2121] and the control over the citizens wielded by the senate through the management of public contracts and through filling the courts from its own number. But the most important limitation, implied throughout this discussion though never expressly mentioned, is the lack of popular initiative. The people could convene for no business whatever unless summoned by a magistrate. They could consider no other subject than that proposed to them by the president; they could take no part in the deliberation excepting in so far as the president granted permission to individuals; they could merely vote yes or no on the question presented to them.[2122] Notwithstanding the theory of popular sovereignty these conditions prevented the rise of a real democracy; they placed the assemblies under the control of the magistrates, who as a rule, including even the tribunes, were willing ministers of the senate. The bridled masses were rendered more obedient by the disasters of the war with Hannibal, and the nobles were soon to grow arrogant and violent through a surfeit of wealth and power.[2123] Under these new circumstances the docility of the commons made possible the thorough organization of plutocracy on the basis of a democratic theory of government.
III. The Era of the Completed Plutocracy, based on a Recognition of Popular Sovereignty
201-134
The period from the close of the war with Hannibal to the tribunate of Ti. Gracchus is marked by no such display of comitial energy as that which characterized either the pre-Hortensian age or the epoch introduced by Flaminius. In return for a spurious freedom and a pretended share in the administration the assembly became the handmaid of the plutocracy.
There was, as usual, some legislation of the old kind concerning magistrates. In 198 the number of praetors was increased to six.[2124] The arrangement was modified by the consular statute of M. Baebius, 181, which provided for the election of four and six on alternate years,[2125] with the object of giving the governors of the Spains a biennial term.[2126] The greedy office-seekers by another statute brought about the repeal of this arrangement in 179.[2127] The only new office was that of the tresviri epulones, instituted by a plebiscite of C. Licinius Lucullus, 196. Their function was to attend to certain religious festivals, especially to the feast of Jupiter held on November 13. The law provided that these officials should wear the toga praetexta just as did the pontiffs.[2128]
A stage in the development of the plutocracy and of its control over the plebeian tribunate is marked by the enactment of the lex annalis of L. Villius, tribune of the plebs in 180. This statute not only fixed the ages at which men might sue for and hold the various patrician magistracies,[2129] but also, developing a custom already in existence, established an interval, evidently of two years,[2130] between consecutive magistracies. The stated object was to curb the greed for office which the young nobles were manifesting[2131] as well as the eagerness of the people to favor such ambitious persons, and for that reason it received the support of Cato.[2132] While it prevented the Scipios and the Flaminini from creating a dynastic oligarchy, by checking the growth of exceptional talent and by subjecting statesmen to a fixed routine of honors and functions it subordinated the individual to the class, and in this way aided the consolidation of the senatorial plutocracy.[2133] To the same period, at all events after 194,[2134] belong the Licinian and Aebutian plebiscites, which prohibited the presiding magistrate from offering as candidates for any extraordinary office himself, his colleagues, and his relations by blood or marriage. This measure, too, was to prevent the formation of governing cliques and dynasties. In 151, the year after the third consulship of M. Claudius Marcellus,[2135] to check the further aggrandizement of this man as well as the rise of similar personalities, a law, supported by Cato,[2136] absolutely forbade reëlection to the consulship.[2137] Cato’s idea may have been to expedite the advancement of novi homines; but so far from accomplishing this object, the measure contributed to the further subordination of the individual to the plutocratic machine.[2138] It may well have been in the same partisan spirit rather than in the interest of political morality that P. Cornelius and M. Baebius Tamphilus, consuls in 181, carried a law ex auctoritate senatus for the prosecution of bribery. It disqualified for office for ten years any person found guilty of influencing an election through bribery or other illegal means.[2139] Probably through this measure the nobles aimed to curb the greed of office in the more ambitious and unscrupulous of their number; but it accomplished nothing, and was followed in 159 by another consular lex de ambitu of Cn. Cornelius Dolabella and M. Fulvius Nobilior, which increased the penalty to death.[2140] Practically the punishment was exile. This law had no more effect than the earlier; and the conduct of the nobles both before and after its enactment proves that they did not intend by it to open the consulship to the competition of novi homines.
The limitation upon the judicial imperium of magistrates and promagistrates by the three Porcian laws of appeal, which belong to this period, has been considered in connection with popular jurisdiction.[2141] The last of these acts affected the administration of the provinces and of military affairs, which belonged originally to the magistrates and the senate. It was only by degrees that the people interfered in this department. The earliest known act of the kind was the consular lex de sumptu provinciali of M. Porcius Cato, 195, for limiting the expenses of provincials in the support and honor of the governor.[2142] To prevent conflicts in the provinces between the incoming and the retiring governor, Cato favored a regulation, adopted probably in 177, whether a lex or a senatus consultum has not been determined, to the effect that the imperium of the outgoing functionary should cease on the arrival of the new.[2143] It was still more unusual for the people to take part in the organization of a new province; but in 146 a lex Livia, probably tribunician, commissioned P. Scipio Aemilianus, assisted by ten legati, to organize the province of Africa.[2144]
In foreign affairs the assemblies took the same part as in the preceding period; the centuries continued to declare war and the tribes to ratify peace. In 196 the tribunician lex Marcia Atinia compelled the consuls against their will to conclude a treaty with Macedon.[2145] In 149 L. Scribonius Libo, tribune of the plebs, attempted in vain to secure the adoption of a rogation for restoring liberty to the Lusitanians, whom the praetor Servius Galba had treacherously enslaved.[2146] No less characteristic of the age is the consular lex of L. Furius and Ser. Atilius, 136, for surrendering C. Mancinus to the Numantines because without the consent of the senate he had made an unfavorable treaty with them.[2147] The deterioration in the character of Roman generalship and warfare is indicated by a statute of unknown authorship, enacted after 180,[2148] which forbade a triumph to a commander who had not killed at least five thousand of the enemy in a single battle.[2149] The intention of the law, however, which obviously was to prevent commanders from triumphing for fictitious or insignificant victories, was circumvented by falsifications regarding the number of enemies slain or by triumphs on the Alban Mount.[2150]
Whereas before the second century B.C. no mention is made of a comitial act for the founding of a colony, in the beginning of the period now under consideration the function was exercised by the people three or four times in quick succession. In 197 was enacted the tribunician statute of C. Atinius for planting five colonies—Vulturnum, Liternum, Puteoli, Salernum, and Buxentum—on the coast of Italy, each to consist of three hundred families, the execution of the measure to be in the hands of triumviri, who were to hold their office three years.[2151] Not long afterward a plebiscite of Q. Aelius Tubero provided for founding two Latin colonies, one in Bruttium, the other at Thurii, each by triumviri, who likewise held office three years. The measure was authorized by a senatus consultum, 194.[2152] In the same year a tribunician law of M. Baebius Tamphilus provided for the establishment of three Roman colonies.[2153] Mention of colonial legislation by the people then ceases. Although the phenomenon may be due in some cases to the sources, this explanation does not generally hold good, especially as the colonization of the years 189[2154] and 184[2155] is expressly attributed to the senate, and because Velleius[2156] credits that body with the founding of all the colonies from the Gallic conflagration to his own time. Probably before the Gracchi a senatorial decree was issued in every case, and though the commissioners for conducting colonies were as a rule elected by the tribes after 296,[2157] the people were given but a taste of power within this administrative field.[2158]