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

by George Willis Botsford

While the praetor urbanus and praetor peregrinus still busied themselves with civil jurisdiction, the six other praetors presided over these courts; but as the number was insufficient, past aediles were appointed to preside as iudices quaestionis. This arrangement was especially necessary for the quaestio inter sicarios, overburdened as it was with a variety of crimes.

As these courts were vested with the function of trying without appeal all crimes, including those formerly brought before the comitia, the result was that the people were practically, though not constitutionally, deprived of their judicial power. The tendency of the Cornelian legislation in this as in other respects was oligarchic.

Among the statutes passed in the winter or early spring of 81 we must place the lex de proscriptione,[2621] which added certain regulations to those of the Valerian law for the creation of the Cornelian dictatorship,[2622] and which Sulla considered essential to the execution of his policy and the maintenance of its results. The Cornelian statute concerning proscription forbade the giving of relief or aid to a proscribed person;[2623] it legalized the previous slayings and confiscations of property,[2624] and provided also that the estates not only of the proscribed but also of enemies who had fallen in battle should be sold for the benefit of the treasury.[2625] It excepted from the sale ten thousand of the youngest and strongest slaves, who were given their freedom; and it debarred from the ius honorum the sons, grandsons, and other descendants of the proscribed,[2626] with a view to keeping from them the means of vengeance; and lastly, it fixed the date for closing the proscriptions at June 1, 81.[2627]

During the winter of 82-81 Sulla gave his attention not only to law-making but also to the sale of confiscated property and to the regulation of Italy. The latter work was carried out by the administrative power of the dictator through the destruction of the fortifications of rebellious communities, their punishment by fines and extraordinary taxes, and the confiscation of some of their lands, to be assigned to his discharged veterans.[2628] The Cornelian agrarian laws,[2629] which brought about these confiscations and assignments, seem to have been not acts of the comitia but dictatorial orders.[2630] They must have been issued from time to time as occasion demanded, probably through the entire year 81.[2631] The legions were kept together till after the triumph (January 27, 28 of the year 81)[2632] and then disbanded, to be led off gradually to their lands. Some of the municipia to which soldiers were assigned, most obstinately Volaterrae and Nola, resisted their admission by force of arms. To punish these rebels Sulla carried through the comitia centuriata his lex de civitate Volaterranis adimenda,[2633] which disfranchised not only Volaterrae but also other rebellious municipia.[2634] Those who by this act were deprived of the citizenship received the so-called Latin rights of Ariminum.[2635]

Among the regulations for the improvement of the finances, which he found in bad condition,[2636] was his abolition of the distributions of grain.[2637] Whether it was effected by a lex frumentaria or a dictatorial order cannot be determined.[2638] The levy of taxes on Italian and transmarine communities[2639] could be brought about by senatus consulta,[2640] as the people had nothing to do with such matters. Credit had been shattered by the law of L. Valerius Flaccus concerning debts, 86,[2641] which Sulla repealed by one of his own on the same subject, 81.[2642]

In connection with the Circensian games which he celebrated in the autumn of 81, and which in honor of Victoria were thereafter repeated annually from October 26 to November 1,[2643] Sulla must have passed a lex de ludis Victoriae instituendis.[2644] Lastly came the sumptuary law, through which he attempted to regulate the manners and morals of the citizens.[2645] It was the restoration, in a revised form, of the lex Licinia of 104,[2646] which had been repealed by M. Duronius in 97.[2647] The Cornelian statute permitted the expenditure of no more than three hundred sesterces for meals on the calends, nones, ides, ludi, and certain other holidays, and only thirty for ordinary meals; and it fixed the prices of various luxuries.[2648] Another article of the same statute limited funeral expenses.[2649] The author’s object seems to have been to restore the morals and manners as well as the constitution and laws of the good old time before they were corrupted by the demagogues.

Sulla’s legislation was substantially complete on January 1, 80, when he entered upon his second consulship with Q. Caecilius Metellus Pius as colleague.[2650] Retiring into private life early in 79, he left the constitution to its fate. No better comment on its value could be offered than the history of its decline and overthrow in a single decade. Opposition began to manifest itself from the time of his abdication; and he was hardly in his grave when M. Aemilius Lepidus, consul in 78, promulgated bills for the abolition of some of the Cornelian statutes; but the opposition of his colleague, Q. Lutatius Catulus, and of the senate prevented their ratification.[2651] The right of retired tribunes to sue for other offices,[2652] however, was restored by a statute of the consul C. Aurelius Cotta, 75.[2653]

Before coming to the restoration of the tribunician power it is necessary to mention the statutes passed under the Cornelian constitution. To 78 or 77 probably belongs the lex Plautia de vi, generally regarded as tribunician, which established a quaestio perpetua for the trial of persons charged with violence. It also forbade the acquisition by long use of things stolen or violently seized.[2654] As no censors were elected, an order of the people of unknown authorship in 75, pursuant to a senatus consultum, empowered the consuls of the year to farm the vectigalia.[2655] The approaching end of the Cornelian régime was foreboded in the Plautian law for the recall of Cinna and other exiled democrats, if indeed this measure belongs to 73,[2656] and certainly in the consular law of Cn. Cornelius Lentulus Clodianus, 72, which directed the consuls of the year to collect the money remitted by Sulla to the purchasers of confiscated estates.[2657] A popular tendency may be discovered as well in the final settlement of the question of conflict between sessions of the senate and of the comitia by the lex Pupia, which seems to have been a statute of M. Pupius Piso Calpurnianus, praetor in 71.[2658] It forbade the magistrates to convoke the senate on those comitial days on which an assembly actually met,[2659] the prohibition applying to that part only of the day which preceded the dismissal of the comitia.[2660] It was probably this year which saw the enactment of the lex Antonia de Termessibus—a plebiscite proposed de senatus sententia by C. Antonius, tribune of the plebs, and several of his colleagues, for granting to Termessus Major in Pisidia the rights of a free state in friendship and alliance with Rome, and for regulating on that basis the relations which were to exist between the inhabitants and the Romans.[2661]

The struggle for the rehabilitation of the tribunes began in 78, when those officials applied to the consuls for legislation on the subject. Even Aemilius Lepidus[2662] declined, as he could see no advantage in the unhampered tribunate.[2663] Though generally in these early years of the Cornelian régime the tribunes were mere puppets of the senate, one of them in 76, L. Sicinius, dared in a contio to plead for the full restoration of their office.[2664] In the following year Q. Opimius, another tribune, continued the struggle, with such success that he secured the passage of the Aurelian law above mentioned.[2665] This measure narrowly escaped annulment, and Opimius after retiring from office was exorbitantly fined on the ground that he had interceded in violation of a Cornelian law.[2666] In the year of the condemnation of Opimius, 74, L. Quinctius, who had risen to the tribunate from the lowest social class, strove energetically for the same object,[2667] though he could effect no more than the maintenance of the Aurelian law. Toward the close of his term, however, he opened battle against the senatorial courts, which had fallen into disfavor because of their corruption.[2668] In 73 the contest was resumed by Licinius Macer the annalist, then tribune of the plebs, who demanded in vain the full restoration of the tribunician power.[2669] In his efforts he had the support of C. Julius Caesar.[2670] The struggle died down as the danger from Spartacus rose; but at the close of the servile war it was a tribune of the plebs, M. Lollius Palicanus, a man of low birth, who in a contio held outside the walls in order that Pompey, a proconsul, might attend, persuaded the latter to commit himself publicly to a definite promise to bring about a repeal of the lex Cornelia de tribunicia potestate.[2671] Inveighing against the corruption of the senatorial courts,[2672] Pompey in the same speech intimated an intention to propose a bill on this subject as well.

Shortly after entering upon the office of consul in 70, or at all events before the elections of the year,[2673] Pompey promulgated his rogation for the restoration of the tribunician power. The senate yielded in spite of its dislike for the measure,[2674] and Licinius Crassus, his colleague,[2675] added his name to the proposal.[2676] The people gladly accepted it. Those articles of the Cornelian statute which remained untouched by the Aurelian law of 75 were thereby repealed, and every restriction on the tribunes removed.[2677] By destroying the chief support of the Cornelian constitution this measure paved the way to its overthrow. Notwithstanding the popular clamor for a reform of the courts,[2678] Pompey hesitated to propose a law for that purpose, as he hoped rather to purify the senatorial order through a severe censorial revision so as to make a judiciary law unnecessary. The reform, however, was taken in hand by L. Aurelius Cotta, praetor in the same year, youngest brother of the consul of 75.[2679] The rogation was promulgated while the trial of Verres was in progress and while the people were excited by lack of confidence in the senatorial jurors.[2680] The first project seems to have been the retransfer of the courts to the equites;[2681] but when the senators saw that they were destined to lose in the contest, they were able to save something by compromise. It was agreed that there should be three decuries of jurors, composed in equal numbers of senators, knights, and tribuni aerarii respectively.[2682] The last-named decury was included because the Plautian judiciary law of 89 had opened the courts to common citizens in addition to senators and knights,[2683] and it was now thought that no less liberality should be shown. The Aurelian statute provided accordingly that the urban praetor[2684] should make up the annual album iudicum of an equal number of men from each of the three classes.[2685] The good feature of the law is obvious. As experience had proved the equestrian courts, as well as the senatorial, to be partisan and corrupt, it was hoped that a combination of the two with an equal proportion of the most responsible and respectable common citizens would be just and impartial. If these expectations were not realized, it was the fault of the Romans, not of their law.