The third book of Cicero’s political dialogue On the Laws (De Legibus) provides an important testimony. In this sequel to his On the Commonwealth (De re publica), written in the late 50s and perhaps still under revision until his death, Cicero describes the laws of a well-governed commonwealth as nearly identical to those of the Roman Republic - which seemed to him, in its uncorrupted form, the nearest approximation possible to an ideal state. Cicero, who had adopted in the earlier work Polybius’ definition of Rome as a ‘‘mixed and balanced polity’’ combining the royal, aristocratic, and democratic elements (represented by the consuls, the Senate, and the assemblies), now introduces in his code of laws two of the most conspicuously popular features of republican politics: the powers of the tribunes of the plebs, and secret voting in the assemblies. On both these points he is vigorously opposed by his brother Quintus. In the two ensuing debates, Quintus represents an undiluted ‘‘optimate’’ point of view - (i. e., one that favored maintaining the authority of the Senate and the social influence of the elite). Marcus (who had started his career with some moderately ‘‘Popular’’ credentials but later adopted a pragmatic but distinctly optimate stance) defends his proposals and the need to concede those two rights to the People. The two debates touch, directly or indirectly, on almost every point of controversy in the modern argument about the political character of the Republic.
Quintus (Leg. 3.19-22) attacks the tribunate as ‘‘a pernicious thing, born in sedition [during the so-called Struggle of the Orders] and promoting sedition’’:
What damage it caused! First, true to its impious nature, it deprived the senators of every honor, made whatever was base equal to the best, upset and confused everything. Even after it had overthrown the authority of the leading men it never rested. For, to say nothing of Gaius Flaminius and the events of the distant past, what rights did Tiberius Gracchus’ tribunate leave good citizens? (Leg. 3.19-20)
But the troubles did not start in 133: Quintus relates that five years earlier a ‘‘mean and vile’’ tribune of the plebs had cast two eminent consuls into prison. He then marshals the turbulent ‘‘Popular’’ tribunes of the Late Republic: Gaius Gracchus, who ‘‘wholly subverted the constitution’’; ‘‘Saturninus, Sulpicius and the rest whose assaults the Republic could not repel without resorting to arms’’ (Leg. 3.20); and finally, P. Clodius Pulcher, M. Cicero’s nemesis who briefly drove him into exile for unlawfully executing the Catilinarian conspirators, and who carried the law conferring on the Roman plebs a privilege it would retain for centuries - free grain. Concluding his speech, Quintus praises Sulla for curtailing the tribunes’ powers during his dictatorship; on Pompey’s restoration of them in 70 he will say nothing, being unable to praise and unwilling to criticize.
Quintus’ claims that the tribunate robbed the Roman elite of all its influence should naturally be taken with a considerable amount of salt. Nevertheless, the passage clearly portrays the tribunate as more than a minor irritation from the senatorial point of view. Moreover, the tribunate of Tiberius Gracchus was not, according to Quintus, the first ‘‘modern’’ realization of this institution’s subversive potential. In his second speech, Quintus deals with the ballot laws. This, again, brings him to the good old days before the Gracchi. These days, it turns out, were not quite so good as to rule out mischievous popular legislation undermining the power of the elite. This time, Marcus Cicero himself professes to be uncertain on the ‘‘difficult and much debated question’’ whether votes should be recorded openly or secretly. In principle, of course, open voting is preferable, but ‘‘the question is whether or not this can be obtained’’ (Leg. 3.33). But Quintus refuses to accept his brother’s implied assumption that one cannot swim against the tide of public opinion:
This view.. .is very frequently injurious to the state: namely, when something that is thought to be right and proper is considered unattainable on the grounds that the people cannot be opposed. But firstly they can be opposed, if one acts with determination; moreover, it is better to be violently overthrown while defending a good cause than to yield to an evil one. For who is unaware that the ballot laws have deprived the champions of the senate of all their influence? ... A hiding-place should not have been given to the people where the ballot can conceal a mischievous vote while keeping good citizens in ignorance of each voter’s opinions. (Leg. 3.34.)
He proceeds with a hostile account of the history of the four ballot laws (that incrementally introduced the secret ballot for all types of popular voting), assailing each of the tribunes who carried them.4 The first two - the Gabinian Law of 139 and the Cassian Law of 137, regarding electoral and judicial assemblies (except for cases of treason - perduellio), respectively - predate the tribunate of Tiberius Gracchus. It has often been claimed that Tiberius revived the long-dormant powers of the tribunate in order to carry his law in the teeth of senatorial opposition. But the possibility of such legislation, mentioned by Polybius (6.16.3), had not been merely theoretical before 133.
Nor was the figure of an aristocratic radical espousing highly controversial ‘‘Popular’’ causes, well known to the students of the Late Republic, wholly absent from Roman politics before 133. L. Cassius Longinus Ravilla, who, as tribune of the plebs, carried the ballot law in 137, was, according to Quintus, ‘‘a noble, but - I mean no offence to his family - he broke ranks with the good citizens, and was always hunting for approving chatter in popularis fashion’’ (Leg. 3.35). The passage of the Cassian Law appears to have been accompanied by a dramatic confrontation. According to Cicero’s testimony elsewhere, ‘‘the tribune of the plebs Marcus Antius Briso long resisted the ballot law [of Cassius], supported by the consul Marcus Lepidus, and this was a source of reproach to Publius [Scipio Aemilianus] Africanus because Briso was believed to have relented due to his influence’’ (Brut. 97). Quintus recalls this criticism and warns his brother that he will be similarly blamed for introducing the ballot into his code of laws; Marcus refers to Scipio’s defense, which has not survived (Leg. 3.37-8). The matter was well remembered, almost a century after the event, as a classic example of a great political controversy.5 The prevailing senatorial opinion at the time, and the senatorial tradition thereafter, were clearly hostile to the reform and its supporters.
While the author of the Cassian law is described as an aristocrat who played the demagogue, the first ballot law, relating to elections, is said to have been carried by ‘‘an unknown man of lowly origin,’’ Aulus Gabinius. How ‘‘low’’ could the origin of a tribune of the plebs have been? An evidently hostile tradition calls him a slave’s grandson (Livy Oxy. Per. 54.193). Whether true or not, this was probably at least believable. Of course, a slave’s grandson could have been a wealthy man. But this example should remind us that when referring to the Roman elite, we are not talking about a few aristocratic clans. The class of office holders and office seekers was much wider. Many of those people, while certainly belonging to the ‘‘upper class’’ from the viewpoint of the poor, must have seemed ‘‘low’’ indeed to true aristocrats. The nobilitas itself - an elite within the elite - which maintained a strong hold on the consulship, was not a closed caste. From time to time its ranks were joined by ‘‘new men’’ who made their way to the top - with the help of the electorate of the centuriate assembly (see also Chapters 1 and 17).6 Aulus Gabinius, allegedly the grandson of a slave, made history as tribune of the plebs. He is not known to have held office thereafter; but it is possible that two of his sons rose to the praetorship, and Aulus Gabinius (the consul of 58) may have been his grandson.7
It has been argued that in 133, Marcus Octavius’ persistence in sticking to his veto against an obviously popular law was far more unconventional than Tiberius’ determination to pass his agrarian law without consultation with the Senate and contrary to its wishes (see Chapter 8).8 This is possible, though there is no certainty as to the conventions governing the use of the tribunes’ powers. In 137, in any case, a tribune acting in the interests of the Senate was persuaded to withdraw his veto (though the fact that Scipio was ‘‘blamed’’ for this implies that such a result was not a foregone conclusion). In this, to be sure, he deferred to the authority of a great noble; a mere M. Antius Briso might well defer to Scipio Aemilianus. We are not told whether considerations of his own popularity - or rather, fear of unpopularity, in case he insisted on obstructing the law - played a part in his decision. Possibly it did - after all, the tribune’s earlier stance had been supported by the consul and, presumably, by the majority of the Senate, which might be thought to outweigh the influence even of Scipio Aemilianus.
Marcus Octavius, at all events, does not appear to have held any magistracy after 133 - though the Senate and ‘‘the wealthy’’ in general might have been expected to wish to reward their loyal champion. This was, probably, the real price that Octavius had to pay for his opposition to the agrarian law. His wholly unprecedented and, surely, unexpected deposition by a popular vote could in itself, despite the humiliation involved, have only been considered as a long-term political boon - if not for the power of the People. A tribune wishing to continue his political career after the tribunate might think twice before standing in the way of a highly popular law. On the other hand, when a man had reached the pinnacle of his career and no longer expected to need the People’s votes for himself, he might well be thinking about the political career of his son, or perhaps his younger brother; moreover, his power and prestige among his friends and fellow-‘‘oligarchs’’ depended to a large extent on the efficacy of his public support for other candidates. Family and faction are quite properly described as major sources of the Roman elite’s power; but here too, it would be wrong to analyze the elitist and popular aspects of Roman politics as a ‘‘zero-sum game.’’ Furthermore, unpopularity (however incurred) might spell disaster at a trial before the People. Whether one chooses to regard those trials primarily as inspired by personal and factional rivalry within the Senate (which engendered prosecutions), or as an exercise of popular control over the elite, in any case it is obvious that an unpopular aristocrat was easy prey for his aristocratic rivals - and a popular one, doubly formidable to them.
Moreover, facing an angry crowd is not a pleasant experience, whether or not it consists of potential voters. And a Roman senator constantly faced crowds (see also Chapter 20). He had to face them not just in the assemblies and in the mass meetings (contiones), not seldom unruly and tumultuous, where public affairs were debated but no voting took place.9 Trials before magistrates or standing courts were conducted not in some well-guarded ‘‘Palace of Justice’’ but in the Forum, with a large popular audience present, visible and often audible.10 And, of course, a senator met the Roman plebs in the theater and the Circus, not to mention the streets of the city. He did not have to face those crowds alone, to be sure, but accompanied by a respectable number of attendants. Still, it seems that a modern democracy often shields its senior politicians, the people’s representatives and servants, from day-today contact with the common people, far better than was the case in Rome with proud nobles pursuing a senatorial career. A Roman aristocratic politician was not sped through the city in a convoy of cars with closed curtains. Nor was the Roman elite protected by a police force. Unpopularity was not something that a Roman ‘‘oligarch’’ would incur lightly. It has been suggested that, owing to the various limitations and constraints imposed by the system, ‘‘the Roman populus exercised influence not through participation in the formal machinery of government... but by taking to the streets, by agitation, demonstrations and riots.’’11 But formal and informal expressions of popular will were in fact closely connected and largely complementary; the latter might greatly reinforce the efficacy of the former. Members of the elite who acted in flagrant defiance of public opinion might have to pay a heavy price - formally and informally. It is often said that Roman magistrates, though elected by the People, were not conceived of as ‘‘people’s representatives’’ and, once elected, were under no obligation to follow the People’s wishes. However, the system provided them with plenty of good egoistic reasons to seek popularity and to eschew unpopularity.
It is against this background that we should consider the political significance of the various procedural devices enabling members ofthe elite to prevent popular assemblies from expressing their will - the veto, the wide powers of the presiding magistrate, religious obstruction (see also Chapter 12). These were powerful weapons, and powerful incentives could exist for using them in the interests of the elite; but there might also be good reasons to refrain from using them. It was far from inevitable that a friendly tribune would be available with his veto at the Senate’s call. Marcus Cicero, replying to his brother’s attack on the tribunate, and referring to Octavius’ veto, implies that at least one of the ten tribunes could always be counted on: ‘‘Has there ever been a college of tribunes so desperate that not one of the ten maintained his sanity?’’ (Leg. 3.24). When this is said in light of the experience of the Late Republic, it is, obviously, special pleading. This rhetorical exaggeration (on a par with Quintus’ claims that the power of the boni was wholly subverted by the tribunate and the ballot) has sometimes been echoed by modern historians who overstate the ease with which the Senate could, especially in the days ofpre-Gracchan ‘‘harmony,’’ wield this weapon in defense ofits interests. Roman assemblies have been described as legally ‘‘sovereign’’ on the grounds that they possessed unfettered powers of legislation. On the other hand, it can be argued that even in the strictly formal sense, these assemblies cannot be properly defined as sovereign, given the various legal possibilities that existed for obstructing their will before a decision could be voted on. But the argument over the precise meaning and applicability of this non-Roman term to Roman politics is somewhat beside the point. The real (as opposed to formal) power, and the real weaknesses, of the Roman assemblies depended, to a large degree, on whether those members of the elite who were in a position to obstruct the popular will thought it expedient (or even safe) to do so. This might depend on a delicate balance ofincentives and disincentives - widely varying from occasion to occasion. A similar balance of considerations might encourage or deter an elected official (usually a tribune) to activate the People’s power of legislation by proposing a ‘‘Popular’’ bill, or to put his legal authority to other ‘‘Popular’’ uses (see also Chapter 20).
World History
