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—
(1) No one shall hold more than five hundred iugera of the public land, excepting that in case the holder has sons he may occupy an additional two hundred and fifty iugera for each of two sons.[2245]
(2) The occupier shall receive compensation for improvements on the lands which the law compels him to surrender.[2246]
(3) The five hundred to one thousand iugera retained by the occupier shall be granted to him by the state in perpetuity and free from all dues.[2247]
(4) The lands thus accruing to the state shall be divided among the needy[2248] in lots, the maximal size of which seems to have been set at thirty iugera,[2249] to be held not as private property but as permanent, heritable leaseholds inalienable and subject to a specified rent.[2250] The Latins and Italians are to be included among the beneficiaries of this provision.[2251]
(5) Certain specified parts of the public domain shall not be subject to assignment—the same parts which are afterward reserved from assignment by the agrarian law of 111:[2252]
a. Land granted by law or by a senatorial decree to a colony, a municipium, or a Latin town, with the exception of any tracts of such land which this law may expressly order to be sold, assigned, or restored.[2253] Public domain granted by a lex or a senatus consultum can be withdrawn by the same, but the modification of a treaty requires the consent of both parties.[2254]
b. The trientabula—portions of public land granted by the government for a quit rent to its creditors as security for any part of a loan.[2255]
c. The ager compascuus—public land on which a specified group of neighbors have a right to pasture free of charge ten large domestic animals—cattle, horses, mules, and asses—and a fixed number of small animals, unknown to us on account of a lacuna in the inscription but most probably fifty.[2256] As the unit was doubtless the individual, much of the land of this description must have remained undivided.[2257]
d. Public roads.[2258]
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.
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]
As under the government of the nobility military affairs were in the hands of the magistrates and senate, this field was closed to comitial legislation.[2354] One of the most notable indications of growing democracy was the project of Ti. Gracchus, 133, for shortening the period of service. It was not brought to vote;[2355] but his brother Gaius succeeded in passing a plebiscite, 123, which ordered that the state should bear the cost of clothing soldiers, and forbade the enlistment of boys before the close of their seventeenth year.[2356] The pay of the soldiers, which since the war with Hannibal had remained five and a third asses a day, had under new conditions become wholly inadequate; and certainly insistence on the legal age limitation was prudent as well as humane. There is no ground, then, for imagining with Diodorus[2357] that in this salutary measure Gaius was catering for the support of the soldiers by inciting them to disobedience and lawlessness.
His greatest constructive work he aimed to achieve through colonization and through the extension of the franchise. His colonial law, 123, proposed to establish many settlements in Italy,[2358] two of which at least should be made up of men of the best character, not the neediest but traders and workmen of moderate means.[2359] The two actually founded were Scolacium and Neptunia,[2360] both in situations favorable for commerce. Several other settlements in Italy are attributed to his colonial or agrarian statute.[2361] As his colonies were exclusively citizen,[2362] if any aliens took part, they must by virtue of the colonial law have obtained the Roman rights. The statute of his colleague Rubrius the same year (123) provided for the founding of Junonia on the site of Carthage.[2363] But the most liberal and statesmanlike measure was reserved for his second tribunate, 122. It was a proposal to grant full citizenship to the Latins and the ius Latii to the remaining allies.[2364] The rejection of the bill by a popular vote proved the leader far too liberal and too progressive for his supporters. Deceived by the spurious proposals of M. Livius Drusus,[2365] a colleague of Gaius, for the founding of twelve colonies, the members of which were to hold their lots by fee simple and consequently exempt from rents, and for depriving the Roman magistrates of the right to inflict corporal punishment on Latins even when in military service under their commands,[2366] the populace, readily accepting the new proposals,[2367] turned against their true champion, and defeated him in the election for the tribunate for the ensuing year.[2368] It was probably the same measure of Gaius for extending the citizenship which alienated from him the equites, who in every crisis pursued their own selfish ends.[2369] In the ensuing struggle between the senate and Gaius they took the side of the former.[2370]
In the tribunate of Gaius Gracchus the life of the comitia reached the highest point of intensity. The two years of his administration afford evidence of what the assembly could accomplish when directed by the personality of a great statesman.[2371] The sum total of the measures adopted should be estimated not as a completed work, but as a foundation to be strengthened at defective points and to be built upon till the whole structure of the state and empire should be reconstituted and freshly vitalized. These results might have been achieved, had Gaius lived out his natural life and retained the support of the populace and the knights.[2372] His failure proved the comitia a weak, unsafe instrument for constructive statesmanship.
The optimates waited only for the expiration of the tribunate of Gaius Gracchus to begin undoing his work, and they found the comitia ready to aid in the demolition. In 121 a plebiscite of M. Minucius Rufus repealed the Rubrian law for the colonization of Junonia (Carthage).[2373] Soon afterward, certainly not later than 118, a plebiscite, whose author is unknown, permitted the beneficiaries of the Sempronian agrarian laws to sell the lots they had received.[2374] This enactment was followed in 118 by a plebiscite which Appian[2375] assigns to Spurius Borius (?), a name not otherwise known.[2376] It put an end to the distributions, and must therefore have abolished the agrarian triumvirate. The same law confirmed all holders of the ager publicus in their possession, without converting any of this land into private property, and it continued the imposition of rents. We may assume that the lands here referred to included those recently distributed in small lots as well as those retained by the occupiers. Lastly it enacted that the revenues accruing from the rents should be used for distributions—probably of cheap grain.[2377] In 111 another tribune, whom Cicero[2378] names Sp. Thorius, through a law which has partially survived in an inscription, aimed to settle definitely and for all time in the interest of the nobles the questions raised by the Sempronian agrarian legislation.
I. This epigraphic lex agraria converts into private property the following classes of lands.[2379]
(1) Land assigned to a colony or in any way made public, and afterward restored to the original owners (domneis). It is to be private optuma lege.[2380]
(2) Land assigned to a colony and afterward restored to its former occupier (veteri possessori).[2381]
(3) Land within the legal limit (of five hundred iugera) left to the occupier by the three commissioners.[2382]
(4) Land assigned after 133 to colonies of Roman citizens.[2383]
(5) Land given and assigned by the three commissioners after 133.[2384]
(6) Land which has been occupied after 133 (not assigned by the commissioners) to the extent of not more than thirty iugera to the occupier.[2385]
(7) Land which by the provision of this law is to be sold, granted, or restored.[2386]
All the lands above enumerated are declared private and free from vectigal and scriptura.[2387]
II. The lands which the law declares public are those reserved from distribution by the law of Ti. Gracchus.[2388] It retains further as public all lands along public roads which have been granted by the commissioners on condition that the recipients (viasieis vicaneis) in return for the use of the land undertake the duty of keeping the roads in repair. Though heritable and alienable, they remain subject to the burden here described.[2389]
III. In the regulation of the agrarian conditions of Africa the statute deals with three kinds of land, (1) private ex iure quiritium,[2390] (2) private ex iure peregrino,[2391] (3) public domain of the Roman people of various sub-classes.[2392] Lastly the statute aims to settle the status of the lands of Corinth.[2393] As regards the Latins and aliens, whatever has already been permitted them by treaty or law is allowed them by this statute, provided the same thing is allowed a Roman citizen; but it is forbidden them if forbidden a citizen. Rights granted the citizens which up to this time are not enjoyed by aliens are not by this law communicated to aliens.[2394]
Through this series of reactionary laws, from the Minucian (121) to the Thorian (111), the optimates succeeded in nullifying the good results of the Sempronian agrarian reforms. It was while the Minucian rogation[2395] was under discussion that the senate took advantage of a disturbance in the concilium to arm the consul Opimius with absolute power for putting down C. Gracchus and his followers.[2396] The failure of an attempt in the following year (120) to call Opimius to account for these proceedings established the right of the senate to the appointment of special commissions and to the decretum ultimum[2397]—a right on which the optimates continued to insist to the end of the republic. Through the plebiscite of L. Calpurnius Bestia (also 120)[2398] they put the stamp of legitimacy upon the murder of the followers of Ti. Gracchus by recalling from exile P. Popillius Laenas, who as consul in 132 and head of a special court was chiefly responsible for that judicial crime.[2399] An attempt was made by Q. Servilius Caepio, consul in 106, to restore the courts to the senate,[2400] or possibly to compromise by providing for an album composed of both senators and equites.[2401] The sources imply that the measure was accepted by the comitia; but if so, it must have been immediately annulled, as it was not carried into effect.[2402] Within this period of reaction, and perhaps as a part of it, falls the lex de libertinorum suffragiis of the consul M. Aemilius Scaurus, 115. Although nothing certain is known of it, we may suppose that it attempted again[2403] to restrict the libertini to the four city tribes.[2404] About this time, too, several acts seem to have been passed for diminishing the pay of soldiers, probably undoing the Sempronian law on the subject.[2405]
A glance at these reactionary measures alone would leave the impression that the senate was recovering its entire supremacy. This result might have been reached had it not been on the one hand for the lasting inspiration of the Gracchan spirit in the plebs and their leaders, and on the other the new position of the equites. In 119 C. Marius, at once a representative of the knights[2406] and of the peasants, opposed as tribune of the plebs the senatorial aristocracy, which now had to depend for immediate support upon the populace.[2407] The optimates had greatly impaired the value of the secret ballot through the custodes tabellarum, who stood on the pontes as well as by the boxes (cistae) to keep watch over the voting. They were often influential men[2408]—in elections selected by the candidates[2409]—who used their influence with the voters, especially of the principium or of the prerogative century,[2410] thereby maintaining for the aristocrats a high degree of control over the comitia in spite of the ballot laws.[2411] For this reason C. Marius when tribune of the plebs carried an act for making the pontes narrower that there might be room on them for the voters only.[2412] The politicians, however, soon found means of circumventing this law as well as the use of the ballot.[2413] The populares could expect little therefore from the plebiscite of C. Caelius, 107, which by extending the ballot to trials of perduellio, completed the abolition of oral voting in the comitia.[2414]
We find another sign of popular recovery in the assembly’s resumption of the appointment of special judiciary commissions.[2415] One of the most remarkable courts of the kind was that created in 113 for the trial of three Vestal virgins on a charge of incest. The pontifex maximus, who possessed absolute authority over the Vestals, had already pronounced judgment, condemning one and acquitting the other two, when a plebiscite of Sex. Peducaeus, taking the case out of his hands, transferred it to a quaestio extraordinaria.[2416] To such an extent did the tribune apply the theory of popular sovereignty.[2417] The plebiscite of C. Mamilius, 109, ordered the appointment of a court for the detection and punishment of those who had accepted money from Jugurtha for aid rendered him against the decrees of the senate and the interests of Rome. As it was a blow aimed at the nobility, the people in the hatred they then cherished against the governing class voted it with great spirit.[2418] In 105 the tribal comitia abrogated the proconsular imperium of Q. Servilius Caepio,[2419] and in the following year, they not only appointed a special court to try him for embezzlement of the gold found at Tolosa,[2420] but through the plebiscite of L. Cassius Longinus, they disqualified for membership of the senate any person whom the people had judicially condemned or whose imperium they had abrogated.[2421] These acts confirmed and applied the principles underlying the deposition of Octavius and the rogation of C. Gracchus concerning persons deposed from office (abacti). In theory the people indirectly chose the senators through their function of electing magistrates; and they were only claiming this right when they insisted that he should be prohibited from membership whom they had condemned in either of the two ways described by the statute. It must have seemed to the people, on the other hand, that the tribunes, who were once more their true representatives, had as good a right as any other magistrates to seats in the senate. This feeling found expression in the Atinian plebiscite, enacted between 122 and 102,[2422] which gave the tribunes the ius sententiae dicendae in the senate with the same right to censorial enrolment as that enjoyed by the curule magistrates.[2423]
The growing strength of the people and at the same time the increasing dependence of the optimates on religion for the control of politics are indicated by a law of 103 concerning the election of sacerdotes. More than a hundred years earlier[2424] was instituted the custom of electing the supreme pontiff and the chief curio in comitia of seventeen tribes designated by lot. Toward the end of the plutocratic régime C. Licinius Crassus in the interest of the people attempted in vain to pass a law for extending the principle to all the members of the more important sacerdotal colleges.[2425] The proposal was defeated by the eloquence of C. Laelius,[2426] but at length it was passed as the lex de sacerdotiis of Cn. Domitius, tribune of the plebs in 103. The statute affected the pontifical and augural colleges, the decemviri sacris faciundis, and the epulones.[2427] According to the new arrangement when a place became vacant in any one of these colleges, the members of the college drew up a list of eligible candidates from whom the comitia sacerdotum, composed as above described, made a choice.[2428] In spite of this law religion remained a political tool of the optimates.
Meantime the popular party succeeded in enacting economic laws. A Porcian statute concerning interest, which may well have aimed to benefit the poor, seems to be the work of M. Porcius Cato, consul in 118. The author had to defend the act against several attempts to repeal it.[2429] In 109 under the stress of the Cimbric war the consul M. Junius Silanus passed an act for repealing several earlier laws which had diminished the pay of soldiers. We may reasonably believe that it restored the Sempronian law on the subject.[2430] His immediate object was to encourage enlistments.[2431] An agrarian rogation was offered by L. Marcius Philipus, tribune of the plebs in 104. As the author was at heart a democrat, his measure was doubtless inspired with the spirit of the Gracchi. Perhaps it aimed to restore their law; but lacking determination, the proposer readily allowed it to be voted down.[2432] The monetary lex Clodia, which probably belongs to the same year, has no political significance.[2433]
Through the legislative acts above described we can trace the speedy restoration of the democracy and of comitial legislative power after the overthrow of C. Sempronius Gracchus. We are now approaching a second crisis in which the aristocracy had to struggle for existence. Against it was formed a combination of three powerful men, C. Marius, supported by the knights and the municipes,[2434] C. Servilius Glaucia, and L. Appuleius Saturninus. It is almost certain that this Servilius is to be identified with the author of the lex repetundarum of 111 or thereabout, probably a plebiscite, which repealed the Acilian law on the same subject.[2435] In important respects his statute was an improvement on earlier regulations of the crime. “Glaucia’s alteration in procedure was thorough and permanent. He introduced the system of the ‘second hearing’—an obligatory renewal of the trial, which rendered it possible for counsel to discuss evidence which had already been given, and for jurors to get a grasp of the mass of scattered data which had been presented to their notice[2436]—and he also made it possible to recover damages, not only from the chief malefactor, but from all who had dishonestly shared his spoils.”[2437] These principles were taken up into the Cornelian law which superseded it in 81.[2438] The circumstance that the man whom the optimates regarded as merely a vulgar demagogue was the author of so statesmanlike a measure ought to militate against their opinion, not only of him, but also of his associates. He, too, represented the knights,[2439] whereas Appuleius was a champion of the rural plebs against the senate and the populace. As tribune of the plebs in 103 the latter proposed a law for the assignment of lands in the province of Africa to the retiring veterans of Marius in lots of a hundred iugera each. When Baebius, a colleague, interceded, the people pelted him with stones and drove him from the assembly. Thus the law was violently carried, but we hear nothing more of it. Probably it was not enforced.[2440] This act marks an epoch in the history of Roman colonization; through it the government first expressed its intention to provide discharged soldiers with farms, a departure made necessary by the Marian policy of filling the army with capite censi.[2441] Either to this tribunate or more probably to his second belongs the lex de maiestate (minuta),[2442] the first of the kind in Roman history. It defined the crime and made general provisions for the prosecution of those who were accused of it.[2443] The same statute provided for the establishment of a court which seems to have been standing rather than special.[2444]