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

by George Willis Botsford

Early in the second century B.C. we find creditors rioting in usury, unchecked by the various statutes which had been enacted against the evil. They discovered a way of circumventing the law by transferring their securities to citizens of an allied state, who had a right to force the collection of debts under the law of their own community. To put a stop to this kind of fraud the senate decreed that after a stated date allies who lent money to Roman citizens should register the transaction, and that in suits for the collection of such money the debtor should have the privilege of choosing under which law, whether that of Rome or of the allied community, the suit against him should be tried. As the registers provided for the purpose showed that an enormous amount of fraud was still being committed in circumvention of the law and of the senatorial act, M. Sempronius, tribune of the plebs in 193, ex auctoritate patrum proposed and carried a statute which ordered that money lent between a Roman citizen and one of a Latin or other allied state should be collected under Roman law.[2159] This is one of the earliest instances of unfairness introduced by Rome into the private relations between her citizens and those of her allies.[2160]

Family law underwent some modification. A plebiscite of Q. Voconius Saxa, 169,[2161] provided that no citizen assessed at a hundred thousand asses or more should will his property to a woman.[2162] Another article limited to a half of the estate the amount which any legatee, male or female, could receive.[2163] Dowries were regulated by a lex Maenia, which seems to belong to 186.[2164]

In the bestowal of the citizenship the people were unhampered. Doubtless for some time after the Hortensian legislation comitial acts for this purpose were commonly authorized by senatus consulta; but in the year 188 we first hear the enunciation of the principle that the people without the authority of the senate had the power to bestow the ius suffragii on whomsoever they pleased.[2165] The principle was carried into immediate effect by the tribunician statute of C. Valerius Tappo, which without a senatus consultum conferred the right of suffrage on the Formiani, Fundani, and Arpinates, who hitherto had been cives sine suffragio. The determination of the tribe to which new citizens should belong was also provided for by the legislative act of admission.[2166] The citizenship granted in this period continued occasionally to be limited. The Campanians, excluded forever from the rights of the state in 210,[2167] were in 188 placed under the census by a senatus consultum of the preceding year and were given intermarriage probably by a similar act.[2168] In early time, at least before 184, the custom arose of granting to the founders of a colony the right to enroll as citizens a specified number of aliens. The first recorded instance belongs to the year mentioned, in which the poet Ennius received the citizenship in accordance with such a law.[2169] It was by the pretorian comitia tributa that the priestesses of Ceres, who were Greeks from Naples, Velia, or Sicily, were admitted to the citizenship.[2170] Perhaps by the same assembly, at all events by an act of the people, a slave who deserved well of the state was given his liberty, which involved citizenship.[2171] Such grants to single individuals by the people, however, must have been rare.[2172] A Roman taken captive in war, recovered all his rights simply by returning home (postliminium).[2173] But even when an entire community was brought into the state by a single vote, the wording of the law indicates that the inhabitants received the honor as individuals and not in mass.[2174] It was permissible for independent communities and individuals to reject the offer of the franchise,[2175] whereas subjects and partial citizens were compelled to accept it.[2176] From the facts here stated it will immediately appear that after the people had acquired an unconditioned right to extend the Roman franchise, they made little use of the opportunity. The senate could well afford to concede to them a power which they cherished a growing disinclination to use. The expansion of the empire had at length so enhanced the value of citizenship that the masses were unwilling except on the rarest occasions to share its advantages with others.[2177] Any attempt, therefore, on the part of aliens to usurp the rights of the city was resented. In 187 we find the senate appointing the praetor Q. Terentius Culleo extraordinary commissioner for determining by investigation who from the Latin towns had recently usurped the citizenship, and for expelling from Rome those found guilty of the offence.[2178] Soon afterward the people extended their power over such cases; in 177 a second expulsion of the Latins was brought about by a consular law of C. Claudius Pulcher.[2179]

The same spirit prompted the citizens to limit the political rights of freedmen. There can be no doubt that early Rome was as liberal in the treatment of this class as of aliens. From earliest times they had a right to acquire land; and such proprietors were undoubtedly enrolled in the tribes in which their estates were situated.[2180] From the beginning, however, custom deprived them of the ius honorum[2181] and of conubium. The former they acquired along with the other plebeians, although they were less readily admitted to the actual enjoyment of it;[2182] the latter they continued to lack.[2183] They were exempt, too, from ordinary military service.[2184] In time their condition became worse. C. Flaminius as censor in 220, in the interest of the rural plebs,[2185] began arbitrarily to assign all the libertini, whether they had lands or not, to the four city tribes,[2186] doubtless at the same time to the supernumerary centuries of the comitia centuriata.[2187] But the sons of freedmen, themselves originally libertini,[2188] came in time to be looked upon as ingenui, with the same legal rights as the old citizens. This change seems to have been effected by the plebiscite of Q. Terentius Culleo, 189, for compelling the censors to admit to the senate the sons of free parents—undoubtedly those sons of libertini who were born after the emancipation of the father.[2189] The law must have involved the principle of treating such persons as citizens optimo iure, and have therefore required their enrolment in the country tribes, provided they owned land. As the acquisition of full rights came only with the death of the father, which made the son sui iuris, the application of the principle must have required the enrolment of the fathers along with the sons in the rural tribes; in other words, it recognized as citizens optimo iure those libertini who had children,[2190] on the basis of the existing custom of enlisting such persons in military service at crises.[2191] The political connections of the author of this statute leads us to interpret it as a measure of the oligarchs for strengthening their position by the votes of their dependents.[2192]

The increasing wealth and luxury of the age naturally gave rise to sumptuary legislation; and the nobility could allow the comitia to revel in this field, devoid as it was of political significance. The first act, however, was to undo the Oppian law of 215[2193] through the plebiscite of M. Valerius, 195, enacted probably without a senatus consultum.[2194] It was the senate which initiated the tribunician statute of C. Orchius, 181, for limiting the number of guests at banquets.[2195] Cato opposed the enactment of this measure on the ground that it was too easy,[2196] but twenty years afterward he protected it from abolition.[2197] It was reinforced in 161 by the lex cibaria of the consul C. Fannius Strabo, which prescribed that ordinary meals should cost no more than ten asses; on ten days of the month meals should cost no more than thirty; and on the days of the ludi plebeii, Saturnalia, and certain other great festivals, no more than a hundred.[2198] It also forbade the use of fowls excepting one unfattened hen.[2199] The lex Didia cibaria, pretorian or tribunician, 143, extended the application of the Fannian statute to all Italy, and rendered liable to punishment not only the host who violated the law but also the guests at such illegal repasts.[2200]

Closely akin to sumptuary laws are those for the regulation of theatres and games. A plebiscite of Cn. Aufidius of unknown date, possibly 170,[2201] permitted the importation of wild beasts from Africa for use in the circensian games. The statute repealed a senatus consultum which had prohibited such importation.[2202] The arrangement of the social classes in the theatre and at the games was determined partly by law. It was the censors of 194, persuaded by Scipio Africanus the Elder,[2203] who reserved the front seats for senators.[2204] The assignment of fourteen rows to the knights next to those of the senators was effected by a plebiscite, possibly of 146, the author of which is unknown.[2205]

For a long time the laws of the Twelve Tables administered by the magistrates, more rarely by a special court created sometimes by the senate but oftener and in better right during this period by the people,[2206] sufficed for controlling crime. But as offences multiplied in consequence of the increasing complexity of life, the people were called upon more and more frequently to legislate on the subject.[2207] One of the earliest may have been the lex Fabia de plagiariis,[2208] against the usurpation of ownership over a Roman citizen without his consent or over his slave without the consent of the owner.[2209] The date of its origin is unknown; but if Plautus[2210] refers to it, as Voigt asserts,[2211] it must have been in force before 197. For this and other reasons Voigt assigns it to Q. Fabius Verrucossus, consul in 209.[2212] Lange prefers Q. Fabius Labeo, consul in 183,[2213] whereas Mommsen places it after the Social war.[2214] A lex Gabinia threatened with scourging and death any one who induced the people to gather in secret meetings. It seems to belong to the time of the Bacchanalian trouble, 186,[2215] and to have been designed against religious associations of the kind; nevertheless the nobility found in it a means of repressing popular agitation.

On the authority of a mutilated passage in the newly found epitome of Livy an attempt has been made to assign to 149 the law of M. Scantinius (or Scatinius), probably tribune of the plebs, for imposing a fine of ten thousand sesterces on any one convicted of violating a man of free birth.[2216]