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

by George Willis Botsford

While colonization and the assignment of land individually to citizens, which Gaius planned on an extensive scale, as will soon be noticed, were to provide for the agricultural population at the expense of the state, and while the nobles and knights continued to reap an unfailing harvest of wealth in the administration of the provinces, the democratic reformer could think it only just and expedient to subsidize the populace of the capital. The artificial growth of Rome as a political centre, with no sound economic basis but with a most unfavorable geographical situation, rendered the problem of living difficult for the masses even in time of prosperity; and recently circumstances had so diminished the grain supply that relief from the government seemed the only resource against threatening famine.[2297] Before the time of the Gracchi on occasions of especial scarcity or of especial plenty the state had sold grain at a reduced rate; and the aediles, we know not how often, had made similar reductions at their own expense.[2298] There can be no doubt, too, that individual nobles in a private capacity often distributed free or cheap grain among the poor to secure their support in elections. Attached by such means to the nobles and the senate, the rabble had been in the main conservative. There was a certain degree of justice in giving the populace a share in the profits of empire and some wisdom in substituting system for the existing irregularity. A political result, we may also say aim, of the frumentarian plebiscite of Gaius was to disattach the city populace from its conservative moorings and to enlist it in the service of reform. His measure, the first frumentarian law in Roman history, provided for the monthly sale to every citizen who applied for it—practically to those only who resided in or near Rome—of a fixed number of modii of wheat at six and a third asses a modius,[2299] which was probably about half the average market price. The law won for him the good will of the populace,[2300] but his opponents complained that it depleted the treasury and excited the mob to seditions.[2301] It set an example for further reductions at the expense of the state. Hence notwithstanding some good features the effect of the law was pernicious, as it tended to increase the number of idlers, to make the populace improvident, and to encourage demagogism. It must be said, on the other hand, that had Gaius lived to carry out his wide scheme of colonization, he would have so relieved the capital of its semi-pauper population as to render frumentations unnecessary, whereupon the law would naturally have been repealed.[2302]

After providing in the frumentarian act an expedient which, we may believe, he looked upon as temporary, he resumed the work of construction[2303] by reviving his brother’s agrarian law.[2304] The continuance of the assignations as long as there remained any public land that could be distributed was a most essential element of his plan. Among the articles retained were those which subjected the holders of assigned lots to a tax[2305] and exempted from distribution the Campanian territory not set apart for his colony at Capua,[2306] as well as various other lands excepted both by the agrarian law of Tiberius and by that of 111.[2307] Doubtless it also reinvested the three commissioners with judicial power, without which they could accomplish nothing. Through this agrarian law, or possibly through a subsequent lex viaria, the triumviri were empowered to build roads for the accommodation of the new peasantry.[2308] Though introducing no new principle,[2309] his lex agraria was not a simple reaffirmation of his brother’s law with amendments and additions; but “a comprehensive statute, so completely covering the ground of the earlier Sempronian law that later legislation cites the law of Gaius, not that of Tiberius Gracchus, as the authority for the regulations which had revolutionized the tenure of the public land.”[2310]

These measures were passed before the tribunician elections of the year,[2311] which took place as usual in midsummer.[2312] It was his frumentarian law, together with the hope aroused by the long array of promulgated measures, which secured his reëlection. Soon afterward, though still in 123, he brought before the comitia a rogation concerning the qualification of iudices. As the quaestiones extraordinariae from the earliest times were made up of senators, it was natural that the standing courts also from the time of their institution should be similarly composed.[2313] Under such conditions the judicial authority afforded no efficient check upon maladministration; and this immunity from the law, together with the temptations to the misuse of power especially in provincial commands, tended in the course of generations to make of the senate, with individual exceptions, a class of grand criminals. To remedy this evil and at the same time to remove from the senate the strongest foundation of its political power,[2314] Ti. Sempronius Gracchus had proposed his rogatio iudiciaria either for transferring the courts entirely to the knights, or more probably for making up the juries of an equal number of senators and knights.[2315] It failed to become a law; but Gaius now took up the matter, and after experimenting unsuccessfully with one or two projects,[2316] he finally, 122, carried a plebiscite which substituted knights for senators in the alba iudicum,[2317] from which not only standing courts but also special commissions were to be filled.[2318] It is uncertain whether mention was made of equites or whether the result was reached merely by exclusion and definition. There can be no doubt that the qualifications were identical with those described in the extant lex repetundarum,[2319] attributed by scholars to M’. Acilius Glabrio, a colleague of Gaius, and adopted accordingly soon after the Sempronian judiciary law. The terms of the Acilian statute excluded tribunes of the plebs, quaestors, tresviri capitales, military tribunes of the first four legions, tresviri for assigning lands, persons who had fought in the arena for pay or had been condemned by a quaestio or by the people. It excluded further all under thirty or over sixty years of age, and all who had their domicile more than a mile from Rome, the fathers, brothers, and sons of those who held the offices above enumerated, senators, and their fathers, brothers and sons, as well as persons living beyond the sea. A part of the statute missing from the inscription may have contained a minimal property qualification, which could have been no other than four hundred thousand sesterces; or it may have restricted jury service to those who “possess a public horse.”[2320] According to Plutarch Gaius was allowed the privilege of selecting the jurors. Had he remained in power and continued in this function, he doubtless could have compelled the courts of his choosing to do justice. But the privilege seems to have been restricted to the first list; thereafter, as provided by the lex repetundarum of Acilius the praetor qui inter peregrinos ius dicit was to attend to the matter.[2321] The relation between the Sempronian lex iudiciaria and the lex Acilia repetundarum has not been precisely determined.[2322] If the Sempronian statute preceded the Acilian,[2323] as is not unlikely, it was the intention of Gaius to pass a general law regarding the qualifications and mode of appointment of jurors, to be superseded in large part by a succession of laws, which dealing with individual courts, should regulate the qualification and appointment of their several juries as well as the procedure and the penalties. This policy indicates a conviction that he could give the reformed judicial system greater stability by making the separate laws here referred to entirely independent of his original lex iudiciaria.[2324]

The lex Acilia, described above as a plebiscite of M’. Acilius Glabrio, colleague of C. Gracchus in 122,[2325] took the place of the lex Iunia of 126,[2326] and is to be identified with a lex repetundarum extensive fragments of which are preserved in an inscription.[2327] Whereas earlier laws on the subject rendered governors of provinces, and perhaps administrative officers in Italy, alone liable to punishment, the Acilian statute includes magistrates and senators and the sons of both as well as the holders of promagisterial imperium.[2328] The crime consists in taking in any one year from those whom the law is designed to protect—from the allies, Latins, provincials, and exterior nations under the sway or in the friendship of the Roman people[2329]—by gift, seizure, compulsion, or other illegal means money or property exceeding a specified sum, which a lacuna in the inscription leaves unknown, but which is supposed to be four thousand sesterces.[2330] Holders of magistracies and imperia cannot be brought to trial for the crime till after the expiration of their terms,[2331] on the general principle which exempts from prosecution those who are engaged in the service of the state.[2332] The praetor qui inter peregrinos ius dicit within ten days after the passage of the statute, and in future within ten days after entering upon his office, is to choose for this court four hundred and fifty persons with the qualifications for jury service described above in connection with the Sempronian judiciary law. From this group the accused is to reject under oath his kinsmen within a specified degree and his sodales. The accuser is to draw from the remainder a hundred persons, taking oath that he has chosen no kinsman within a specified degree or sodalis. The accused rejects fifty of the hundred, and the remaining fifty constitute the jury for trying the case.[2333] The rules of procedure in the trial and the amount of liability of the accused in the event of conviction are given. The accuser, if an alien, is granted as a reward for a successful prosecution the Roman citizenship for himself and his born sons and grandsons. If he is a Latin and does not want the citizenship, he is given instead the right of appeal.[2334] Probably the law contained provisions for the punishment of corruption in the patrons of the accusers and in the praetor and jurors.[2335]

It is certain that Gaius carried a law also for reconstituting the quaestio inter sicarios et veneficos,[2336] which had originally been established shortly before 141.[2337] The Sempronian law on this subject contained a provision for the punishment of bribery or conspiracy committed in trials of the kind. The article referred to included the words “Ne quis iudicio circumveniretur,”[2338] a principle repeated as “Qui coisset, quo quis condemnaretur”[2339] in the corresponding article of the Cornelian law which superseded the Sempronian. There was no quaestio for dealing especially with judicial corruption and conspiracy, but the accused was brought to trial before the very court in relation to which his crime was alleged to have been committed.[2340] The provision was directed against the accuser, against magistrates and senators who presided over such courts, and presumably against equestrian jurors who accepted bribes.[2341]

We have in an inscription the concluding articles of a criminal law[2342] of this period. It is on a bronze tablet found on the site of the ancient Italian city Bantia, and is called the Latin Lex Bantina to distinguish it from another lex in Oscan on the opposite face.[2343] A reference to the triumviri agris dandis adsignandis, who seem to have been those elected under the Sempronian agrarian law, places the document between 133 and 118. It is concerned with a quaestio.[2344] An attempt has been made to identify it with the lex Iunia repetundarum and to assign it accordingly to 126.[2345] The circumstance, however, that it was passed without the authorization of the senate, and that its whole spirit is anti-senatorial, would lead us rather to the conclusion that it was the work of C. Gracchus at the time of his most bitter struggle with the optimates yet before he had lost control of the comitia. The fragment contains no more than the sanctio—provisions for enforcement of the statute. The beginning of the first extant article is lost, but it must have described the class of offenders to which the article applies, and the nature of the offence. It speaks merely of disabilities imposed on the offender, among which are the following: he must not address the senate or vote in a public trial (poplico ioudicio) or in comitia or receive or give testimony in court or wear the praetexta and soleae in public or be chosen into the senate or remain in it if already a member. The second article provides that if a tribune of the plebs, a quaestor, a triumvir capitalis, a triumvir for assigning lands, or a index appointed under the law itself, or a senator shall with knowledge and malice prepense violate the law or hinder its operation, he shall be liable to a fine, the amount of which a lacuna in the text leaves unknown. The third article provides that a consul, praetor, aedile, tribune of the plebs, quaestor, triumvir capitalis, or triumvir for the assignment of lands now in office shall, within the next five days after ascertaining that the law has been enacted, swear in the manner described below: also that the dictator, consul, praetor, master of horse, censor, aedile, and other officials as above enumerated, and the index appointed under this law shall in future take the oath within five days after entering upon their magistracies or imperia. They shall give oath to the urban quaestor publicly in front of the temple of Castor, swearing by Jupiter and the di Penates that they will do as the law requires and will not with knowledge and malice prepense violate the law or by intercession or otherwise hinder its administration. He who fails to swear shall not be candidate for a magistracy or imperium, or manage or retain either, or address the senate or be chosen into it; and the quaestor shall keep a list of those who have taken the oath. The fourth article provides that whoever is or shall be a senator, or shall have the right of addressing the senate after this law has been passed, shall within the next ten days after ascertaining the fact of its enactment take an oath like that described in article 3. The penalty for failure to swear is not mentioned in the extant fragment, but must at the mildest have been expulsion from the senate.

Closely connected with the transfer of the iudicia from the senators to the knights is the statute of Gaius concerning the taxation of Asia. It ordered the censors to let out the taxes of this province to the highest bidders; and it limited the right of the senate to lessen the sum agreed upon.[2346] Under such an arrangement, however, no sufficient guarantee could be provided for the security of the provincials from publican exactions.[2347] The political result of this legislation in favor of the knights was to invest them not only with an important share in the administration, but through the courts with a superiority even over the senate.[2348] The opposition of the poorer class to the aristocracy could never be otherwise than uncertain and fitful; but the knights with their immense wealth and their efficient organization were to be henceforth an ever present rival of the senate. The author of the law had given the state a double head,[2349] which was to prove the source of civil discord; or nearly in his own words, he had thrust into the body of the senate a sword which nothing could withdraw.[2350] For a few months their benefactor may have cherished the delusion that he could depend upon their grateful support; he lived to discover that they cared not for him or his reforms but only for their immediate interests. In his work of construction the statesman found them slightly more serviceable than the proletariate.

The right which the senate had hitherto possessed of assigning the provinces to the magistrates and promagistrates according to its pleasure gave a great opportunity for favoritism and partisanship; it could thwart the will of the people by assigning a popular consul to an insignificant province. To deprive the senate of a power which could be so easily perverted to wrong use, C. Gracchus proposed and carried an act which ordered the senate before the election to name the provinces that were to be consular.[2351] An article forbade tribunician intercession against such action of the senate.[2352] Far from improving the administration, however, this statute tended to foster that routine which was one of the most marked defects of oligarchic rule.[2353]