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

by George Willis Botsford

e. Other portions of the public domain specifically designated as exempt from distribution, including the Campanian lands, which are leased out by the censors.[2259]

f. Certain pasture lands let out to any who wish to feed their live stock thereon, who pay a tax (scriptura) for the privilege.[2260]

(6) The distribution of the lands shall be effected by a standing magistracy elected annually by the tribes[2261]—the triumviri agris dandis adsignandis.[2262]

(7) As all available public land is to be utilized in the various ways described above, and as the holders of lands once public are to be guaranteed in their possession, further occupation of land is thereby precluded.[2263]

Afterward as Tiberius found it impossible to reconcile the optimates to his measure, he withdrew the second article and proposed to eject illegal holders without compensation.[2264] When the nobles induced Octavius, a colleague in the tribunate, to veto the bill, Tiberius had him deposed by a vote of the tribes, and then passed the agrarian law without further opposition, unauthorized however by the senate.[2265] The triumviri elected to take charge of the work of distribution were the author of the law, his brother Gaius, and his father-in-law Appius Claudius Pulcher.[2266] As the election of these persons was a violation of the Licinian and Aebutian plebiscites,[2267] a dispensation was probably granted by vote of the people.[2268] When the commission found itself hampered by legal inability to distinguish between public and private land, Tiberius carried a second agrarian law which invested the triumviri with the necessary judicial power for determining what land was public and what private.[2269] It was by virtue of this second enactment that the word iudicandis was introduced into the phrase descriptive of their functions—“iudicandis adsignandis” or “dandis adsignandis iudicandis.”[2270] In the year 129, probably at the time of the election to this office, Publius Scipio Aemilianus brought about the transfer of the judicial function to the consuls. Appian,[2271] our sole authority for the latter act, speaks only of its discussion in the senate, implying that this body rather than the people passed the resolution. In that case the senate must have annulled the second agrarian law on the ground that it was illegally passed; for in no other way could it set aside a comitial statute.[2272] Some land, already delimited, may still have been subject to distribution; but as the consuls avoided the disagreeable function received from the commissioners, the work of assignment came speedily to an end. The agrarian law of Ti. Gracchus fell thus into disuse till it was revived by his brother.[2273]

The deposition of Octavius[2274] requires especial consideration. In 136 the proconsular imperium had been abrogated, probably by a popular vote[2275]; but no instance of the abrogation of an actual magistracy had thus far occurred. Most scholars consider the act unconstitutional.[2276] It did indeed involve a sweeping departure from long-established custom; but in favor of its legality may be urged the fact that nearly all the powers ever possessed by the assembly are known to have been acquired in the way in which Tiberius was attempting to establish for it the right to remove from office—by precedent rather than by law. A statute of the Twelve Tables declared that whatever the people voted last should be law and valid[2277]; and through the ages preceding the Gracchi they had often applied this principle to the extension of their power at the expense of the senate and magistrates. They were sovereign; and if they chose to introduce the custom of deposing a magistrate whom they regarded as the betrayer of their dearest interests, they had the legal right. The wisdom of the proceeding may be questioned, but he who has followed the history of the assemblies thus far must regard the measure as merely one of the many steps by which the people advanced toward the realization of their sovereignty.

Tiberius attempted to apply the same principle to securing his election to the tribunate. His motive was not a purely selfish desire to save his life; it required no superhuman wisdom to discover that his downfall would mean the collapse of the great reform on which he had set his heart. The continued ascendancy of a popular champion necessarily involved the overthrow of the senatorial government. This idea, which he now clearly grasped, found expression in his new political platform, (1) to shorten the period of military service, (2) by means of a law of appeal to vest the supreme jurisdiction solely in the people, so as to deprive the senate of its extra-constitutional judicial power,[2278] (3) to give the equites equal representation with the senators in the juries, or possibly as Dio Cassius states, to transfer the courts from the senate to the knights.[2279] When the day of election came, his peasant supporters were busy with their harvests, and his platform did not strongly appeal to the city plebs, on whom he had chiefly to rely for votes. Had the people insisted, as they twice did in favor of Scipio,[2280] they would have prevailed either with or without an act of dispensation passed by the senate or by themselves[2281]; but the weakness of his supporters rather than any illegality in the proceeding proved his ruin. To free the future reformer from this limitation, however, a rogation of C. Papirius Carbo, tribune of the plebs in 131, proposed that a tribune should be eligible to reëlection as many times as he chose to offer himself as a candidate. This rogation failed[2282]; but before the tribunate of C. Gracchus, 123, “a certain law had already been enacted,” as Appian[2283] obscurely informs us, “that if a tribune should be wanting on the announcement (of the votes), the people might elect one from the whole body of citizens.” The statute, which Appian has evidently failed to understand clearly, seems to have provided that if the returns showed the election of only nine tribunes from the candidates proposed, the people could proceed to elect a tenth from the whole body of citizens, including the existing tribunician college; or equivalently, if for the tenth place the tribes cast a majority of votes for one who was not a candidate, he would be considered legally elected.[2284] The object was to enable the people to continue in office an especially popular tribune, and was therefore a notable stride in the direction of monarchy.

Papirius was more successful with his lex tabellaria, which extended the ballot to legislation, 131.[2285] Trials of perduellio alone retained the oral vote. Doubtless this improvement greatly strengthened the rising popular party. A plebiscite passed about 129, requiring a knight on entering the senate to sell his public horse, deprived the senators of their votes in the eighteen centuries, and completed the separation of the governing aristocracy from the commercial class begun by the Claudian statute of 219.[2286]

At some unknown time before the tribunate of C. Gracchus a plebiscite of M. Junius modified the lex Calpurnia concerning extortion,[2287] in what way we are not informed. The act is with a high degree of probability attributed to M. Junius Pennus, tribune of the plebs in 126.[2288] If the Junian lex repetundarum was indeed his work, it could have been dictated by no sympathy with the unprivileged classes, for it was this Junius whose plebiscite ordered the expulsion of all aliens from Rome—a measure which Cicero condemns as inhuman.[2289] The act last mentioned was the response of the senate and rabble to the effort of the more enlightened Romans to grant the citizenship to the Latins and Italians. The new idea was embodied in a rogation of M. Fulvius Flaccus, consul in 125, which offered the citizenship, or as an alternative the right of appeal, to the Italians, with the purpose of buying off their opposition to the Sempronian agrarian law; but the measure was so vehemently opposed in the senate that the author withdrew it.[2290] The idea however lived in the minds of the reformers till it was finally realized.

Ten years after the tribunate of Ti. Gracchus his brother Gaius entered upon the same office. Since the beginning of the decennium the leaders of the popular party had made various proposals but had accomplished little. The agrarian law was still nominally in force, though its execution was effectually blocked. The plan of extending the franchise had found its most bitter opponents in the men of the street, on whom the tribunes had chiefly to depend. The ballot in legislation, the possibility of continuous reëlection to the tribunate, and the increase of discontent with the plutocracy were the only gains. Extraordinary progress was now to be made under the leadership of a great creative statesman. The chronological succession of his comitial enactments cannot be determined with absolute certainty. We do not in every instance know whether a given proposal was carried in his first or second year. This much, however, is clear, that most of his measures belong to 123 and to the early part of 122. The execution of the laws, including the seventy days’ journey to Carthage,[2291] consumed much of the second year, and after his defeat for the third term—about July, 122—he carried no more plebiscites.[2292] Among his first thoughts was that of strengthening the legality of the deposition of Octavius[2293] by a rogation which provided that a person so deposed should thereby be debarred forever from office. He probably meant it more as an enunciation of a principle than as a legislative project. The measure was never offered to vote, but was withdrawn, we are told, at the request of his mother.[2294] Far more serious, and of lasting importance, was his lex de provocatione, which, carrying into effect the idea of his brother,[2295] forbade the establishment of a special court or the placing of the state under martial law without an act of the people.[2296] Further judicial legislation was postponed in the interest of more pressing matters.