The statute which established the first standing court—quaestio perpetua—was the lex Calpurnia de repetundis of the tribune L. Calpurnius Piso Frugi, 149.[2217] His motive was undoubtedly a sincere desire to protect Italy[2218] and the provinces from official rapacity. The court was made up of a considerable number of jurors drawn from the senate and presided over by a praetor, who had hitherto exercised civil jurisdiction only. In fact a trial for extortion was at first thought of as a civil suit for the recovery of wealth illegally taken—a conception which determined the organization of the Calpurnian quaestio. But from time to time new standing courts were instituted each with cognizance of a specified class of crimes, till before the end of the republic they had taken upon themselves practically all criminal jurisdiction, retaining little trace of their civil origin.[2219] Between 149 and 141, for instance, was established a standing quaestio for the trial of cases of murder.[2220]
It was in keeping with the oligarchic tendency of the age that a consular law of M’. Acilius Glabrio, 191, gave the pontiffs the function of determining which years should be intercalary and of how many days such years should consist. Thus these functionaries secured the means of bringing the solar and civil years into accord; but they used their new power mostly in the interests of their party, with the result that the confusion in the calendar increased rather than lessened.[2221] The nobles made their greatest gain in the control of legislation and of elections about the middle of the century through the statutes of Aelius and Fufius, probably tribunes of the plebs. By granting the patrician magistrates the obnuntiatio against the tribunes, or perhaps by confirming the former in a usurped power of the kind, it enabled the nobles to exercise a practical veto on tribunician legislation, and may for that reason be looked upon as the firmest support of the plutocracy.[2222] An article of the statute forbade the bringing of a rogation before the people in the interval between the announcement and the holding of elective comitia.[2223]
Toward the close of the period a democratic movement preliminary to the revolution began with the enactment of two important ballot laws. The first was the plebiscite of Q. Gabinius, 139, whom the optimates took pleasure in representing as ignoble and mean.[2224] It introduced the ballot in elections with a view to freeing the voter from the influence of the nobility; for many of the poor were at this time falling into economic, and hence political, dependence on the rich.[2225] The other was the plebiscite of L. Cassius Longinus Ravilla, 137, for extending the use of the ballot to all trials before the people with the exception of perduellio.[2226] Cases coming under the law were those which involved fines imposed by the tribes under aedilician or tribunician presidency. Probably in the opinion of the author, a conscientious noble,[2227] cases of perduellio were too rare to need the change or too solemn to admit of a disturbance of traditional usage. These measures had little immediate effect, for the nobles were as clever as the commons at exploiting the secret ballot for partisan objects[2228]; yet the principle, when carried to completion by the supplementary laws on the subject in the years immediately following, contributed greatly to the success of the revolution.[2229] Not without significance for the general trend of affairs is the circumstance that in these latter years of the completed plutocracy two dispensations were granted P. Scipio Aemilianus from laws which had been designed to secure it against the rise of great personalities. In 148 when he offered himself for the aedileship, being still too young for the consulship,[2230] the people insisted on electing him to the latter office. “When the consuls showed them the law they became more importunate and urged all the more, exclaiming that by the laws handed down from Tullius and Romulus the people were judges of the elections, and of the laws pertaining thereto they could set aside or confirm whichever they pleased.[2231] Finally one of the tribunes of the people declared that he would take from the consuls the power of holding an election unless they yielded to the people in this matter. Then the senate allowed the tribunes to repeal this law and after one year they reënacted it.”[2232] From this event it can be seen that when the tribunes and people were unitedly determined upon a measure, they were irresistible. It is evident, too, that in popular theory no laws could prevent the citizens from having the magistrates whom they chose to elect. Again in 135 a plebiscite, authorized by a senatus consultum, granted more speedily on this occasion though doubtless with as great regret, exempted him from the law which absolutely forbade reëlection to the consulship.[2233] It was equally ominous that in the preceding year the proconsulship of M. Aemilius Lepidus was abrogated, probably by an act of the comitia.[2234]
Another premonition of the revolution was the renewal of agrarian agitation, with which in a varying degree some of the more enlightened nobles sympathized. It began slowly to dawn upon them that the economic ruin of the peasant class was endangering the state—a feeling which found expression in the agrarian rogation of C. Laelius, praetor in 145.[2235] The measure must have been similar to the Licinian-Sextian law as it threatened the interests of the rich.[2236] When he saw that their opposition would be such as to disturb the public peace, he dropped the proposal. If he was in truth called Sapiens because of this speedy retreat, the epithet was too easily earned. Reform, while there was yet time, was blocked as much by the cowardice of the well-minded as by the enormous selfishness of the majority of nobles. It was in this time of extraordinary imperial prosperity that, in the opinion of Polybius, the constitution was successfully put to its severest test. “When these external alarms are past, and the people are enjoying their good fortune and the fruits of their victories, and, as usually happens, growing corrupted by flattery and sloth, show a tendency to violence and arrogance—it is in these circumstances more than ever that the constitution is seen to possess within itself the power of correcting abuses. For when any one of the three classes becomes puffed up, and manifests an inclination to be contentious and unduly encroaching, the mutual interdependence of all the three, and the possibility of the pretensions of any one’s being curbed and thwarted by the others, must plainly check this tendency; and so the proper equilibrium is maintained by the impulsiveness of the one part’s being checked by its fear of the other.”[2237] These words, which we may suppose to have been written after the tribunate of Ti. Gracchus,[2238] accurately describe the interplay of constitutional forces in the period of the completed plutocracy and of the incipient revolution. Controlled in some instances by self-satisfaction and the spirit of repose and in others by greed and arrogance, the dominant institutions of government tended in the one case to sluggishness and decay, in the other to violence; whereas the harmony of the constitution, or its equivalent the soundness of Roman character, like a central sun, held the various institutions in the main to their respective orbits, compelling each to attend to its appropriate function. No retrospect of the Gracchan troubles induced the great historian to revise the view here expressed; for with his boundless faith in Rome he could never doubt that her constitution contained the cure of every evil which new conditions should breed within the state.[2239]
Schulze, C. F., Volksversammlungen der Römer, 100-10; Peter, C., Epochen der Verfassungsgesch. der röm. Republik, 118-140 (on the general character of the period); Ihne, W., History of Rome, bk. vi; Long, G., Decline of the Roman Republic, I. chs. v, vii, viii; Mommsen, Th., History of Rome, bk. III, ch. xi; Röm. Staatsrecht, see index s. the various laws; Lange, L., Röm. Altertümer, ii. 116-351, and see index s. the various laws; De legibus Aelia et Fufia commentatio, in Kleine Schriften, i. 274-341; Neumann, C., Geschichte Roms, I. ch. i; Nitzsch, K. W., Die Gracchen und ihre nächsten Vorgänger, bks. i, ii; Willems, Droit public Romain, 178 ff.; Mispoulet, J. B., Les institutions politiques des Romains, I. 220 ff.; Hallays, A., Les comices à Rome, 67 f.; Maranca, Il tribunato della plebe dalla lex Hortensia alla lex Cornelia; Arndts, Die lex Maenia de dote vom Jahr der Stadt Rom 568, in Zeitschr. f. Rechtsgesch. vii (1868). 1-44; Voigt, M., Die lex Maenia de dote vom Jahre 568 der Stadt; Die lex Fabia de plagiariis, in Verhdl. d. sächs. Gesellsch. d. Wiss. xxxvii (1885). 319-345; Savigny, F. C. von, Lex Cincia de donis et muneribus, in Vermischte Schriften, i. 315-85; Ueber die lex Voconia, ibid. i. 407-46; Schutz der Minderjährigen und die lex Plaetoria, ibid. ii. 321-95; Garofalo, F. P., Lex Cincia de donis et muneribus, in Bull. dell’ ist. di diritt. Röm. xv (1903). 310-2; Krüger, P. and Mommsen, Th., Anecdoton Livianum, in Hermes, iv (1870). 371-6; Babelon, E., Monnaies de la république Rom. i. 37-69; Hill, G. F., Greek and Roman Coins, 44 ff.; Haeberlin, E. J., Del più antico sistema monetario presso i Romani, V, in Rivista Italiana numismatica e scienze affini, xix (1906). 611-46; Cunz, O., Polybius und sein Werk; Pais, E., L’elezione del pontefice massimo Romano per mezzo delle XVII tribù; articles in Pauly-Wissowa, Real-Encycl. i. 576-80: L. Aimilius Paullus (Klebs); ii. 2728 f.: Baebius (idem); iii. 2738-55: M. Claudius Marcellus (Münzer); iv. 1112-38: Consul (Kübler). Grenfell, B. P., and Hunt, A. S., Oxyrhynchus Papyri, iv (1904). 90-116 for the newly discovered epitome of Livy, including text and commentary. The lost books xlviii-lv, covering the years 150-137, are represented. See also Kornemann, E., Die neue Livius-Epitome aus Oxyrhynchus, in Beitr. zur alt. Gesch. Beiheft ii (1904); Sanders, H. A., The Oxyrhynchus Epitome of Livy, in Trans. of the Am. Philol. Assoc. xxxvi (1905). 5-31, and a brief notice by Liebenam, W., in Jahresb. d. Geschichtswiss. xxvii (1904). 124 f.
CHAPTER XVI
COMITIAL LEGISLATION
From the Gracchi to Sulla
134-82
I. The Gracchi
134-122
The work of agrarian reform, after the feeble attempt of Laelius,[2240] was taken up in a more determined spirit by Ti. Sempronius Gracchus, who early in his tribunate, upon which he entered December 10, 134, promulgated his famous lex agraria. It was a repetition, with some modifications and additions, of those articles of the Licinian-Sextian statute which related to the same subject. The last instance of the prosecution of trespassers against the earlier law given in our imperfect records belongs to 193,[2241] and it must still have been in force in 167 when Cato[2242] recited its terms in his “Oration in behalf of the Rhodians.” Probably about the time of Flaminius the agrarian provisions of this statute were renewed with the addition of articles, (a) providing that a specified proportion of free laborers should be employed on public lands held in possession. (b) requiring holders to take an oath to obey the law. (c) increasing the penalty for violations.[2243]
Tiberius had matured his plan before entering office. Assisted by experienced friends, among whom were P. Licinius Crassus, P. Mucius Scaevola, the most eminent jurist of his generation, consul designate for 133, and Appius Claudius Pulcher, his father-in-law, he expressed the articles of his rogation in the most careful terms and with especial regard for vested interests.[2244] Its chief provisions were—