VII. THE CONTIO
Contio, derived from conventio,[766] originally signified “a coming together,” “a meeting” of any kind. In an early stage of its history it must have been a general term for public assembly, especially comitia. This meaning appears most clearly in a passage of Macrobius,[767] in which, quoting the treatise of Lucius Julius Caesar on the Auspices, he declares (1) that on market days a contio cannot be called, (2) in other words, that on such days business cannot be transacted with the people, (3) that for this reason the Romans cannot hold comitia on market days. Cicero,[768] too, states with reference to a certain market day that “for two days no contio can be held”—for the day of the market and the one following. From the context it is evident that he, like Macrobius, is thinking of comitia, which, as is well known, could not legally meet on market days.[769] Doubtless in the conservative nomenclature of the pontiffs and augurs, quoted by Macrobius and Cicero, contio still included comitia; it must in fact have applied more particularly to the formal, voting assembly; for informal meetings were not forbidden on such days.[770] But in the time of Cicero this use of the word was obsolete excepting in the archaic formulae of the sacerdotal colleges. In the political language of his age contio had come to be restricted to the non-voting assembly—either organized[771] or more commonly unorganized—summoned by a magistrate or a sacerdos,[772] and in this sense it will be used in the present volume. Still farther removed from its origin is the meaning “oration” delivered to the people in such a gathering.[773]
Because of the passive character of this form of assembly the magistrate admitted all who wished to attend, without inquiring whether they were citizens and in full possession of their political rights.[774] It might be composed either of soldiers[775] or of civilians, presided over in the field by the commander, in the city by any magistrate who had a right to hold comitia in their own or in another’s name, including the king,[776] interrex, dictator, master of horse, and tribunes of the plebs;[777] also the quaestors[778] and aediles,[779] the pontifex maximus and the rex sacrorum.[780] Necessarily the right belonged as well to all extraordinary magistrates, as the decemviri legibus scribundis, who possessed consular power within the city.[781] But promagistrates and any others who held an exclusively military imperium could summon neither the comitia nor the civil contio.[782] The censors held contiones for the taking of the census,[783] for imposing fines,[784] and for the lustration. In the last-named function the assembly was also called comitia centuriata or exercitus urbanus.[785] The quaestors, the curule aediles, and the plebeian aediles exercised their jurisdiction in contiones and comitia, which for this purpose they called not in their own name but by permission of a higher magistrate.[786]
As the contio did not, like the comitia, theoretically include all the people, any number of magistrates could simultaneously hold meetings of the kind.[787] A minor officer had no right to take charge of, or to summon the people from, a contio called by another. A higher officer exercised this right against a lower; the consul, for instance, could take the meeting from the hands of any ordinary patrician magistrate,[788] though not of a tribune of the plebs. No one dared disturb a meeting of any kind under the presidency of the latter,[789] and at least in the late republic a tribune sometimes forbade a patrician magistrate to address an assembly;[790] but otherwise consuls and plebeian tribunes might hold simultaneous contiones.[791]
Sometimes the contio was summoned merely to witness a public act. The consuls called the people together outside the walls by the sound of the war-trumpet to see an execution for treason. On this occasion the citizens were arrayed in centuries on the Campus Martius, in an assembly called at once comitia centuriata and contio.[792] We hear of a similar execution of an astrologer or magician outside the Esquiline gate, according to a primitive custom;[793] and it was most probably in a contio that the supreme pontiff scourged to death a man who had wronged a Vestal.[794] The people gathered in the same kind of meeting to witness an oath,[795] a judicial process,[796] or the levy of a fine.[797] But it was preëminently the listening assembly, hence the definition offered by Gellius,[798] “To hold a contio is to address the people, without calling on them for a vote.” It applied not only to the isolated meeting summoned to hear edicts, reports, communications of every kind, including arguments and appeals for or against a given policy,[799] but also to the preparatory stage of the voting assembly whether addresses were delivered or not. Occasionally in early times there was speaking on the merits of candidates at the opening of an electoral assembly, and the voting was sometimes interrupted for the purpose.[800] Before the age of Cicero this rare proceeding had disappeared. In his day the canvass for candidates had been made before the holding of the preliminary contio, which accordingly was brief and formal. Because much time was required for the voting of the centuries,[801] speaking on the day of their assembly had to be minimized. For this reason the contio for advising the adoption of a resolution by the comitia centuriata was held on an earlier day. Such was the meeting summoned in the Campus Martius by the consul P. Lentulus for the purpose of urging the people to vote in the ensuing centuriate assembly for the recall of Cicero.[802] In judicial proceedings before any of the assemblies the testimonies of witnesses and the pleadings occupied the greater part of the time, and for this reason judicial assemblies were frequently termed simply contiones. They will be described in a later chapter.[803]
Informal contiones could be called at any time while the sun was up,[804] with or without[805] an interval between the summons and the meeting, and in any place[806] at the pleasure of the person who convoked them. In public assemblies of every kind the people remained standing throughout the session.[807] The magistrate who was about to summon an auspicated contio repaired to the templum which he intended to occupy during the meeting.[808] After taking the auspices there, and finding the omens favorable, he ordered the crier to call the citizens.[809] His directions to this assistant were prefaced by a solemn wish that the gathering of the citizens might be well, fortunate, auspicious, and advantageous to the Roman people, the commonwealth, himself, his colleague or colleagues, and his magistracy.[810] After first issuing the summons from the templum the crier repeated it while making the circuit of the walls.[811] Meantime the presiding officer invited the senators, his colleague or colleagues, and the various other magistrates to assist him with their presence and advice.[812] The invitation was extended even to opposing tribunes;[813] and on the other hand a presiding tribune was especially anxious to secure the presence and favorable influence of patrician magistrates and of the leading men of the state.[814] When the president saw his friends about him and the people gathered, he called the contio to order,[815] and proceeded to open the meeting with a prayer.[816] In the case of a resolution to be brought before the assembly the magistrate was accustomed first to submit it to the senate, which considered the bill and perhaps suggested alterations;[817] but sometimes measures were brought into the comitia without this senatorial deliberation.[818] In the contio the presiding officer had power to exclude or to limit discussion of his proposals. Ordinarily he found it advantageous to instruct the people regarding the subject on which they were to vote; and it was for this purpose that one or more contiones were held previous to the comitia. The right to address the people belonged primarily to the presiding magistrate. Although the king enjoyed the superior right, the notion that in the regal period no private persons spoke in the assembly seems to be unwarranted.[819] The custom of the republic prescribed that the president should grant the privilege not only to his colleagues[820] but also to all the higher magistrates.[821] In some cases the invitation was extended to senators[822] and to other distinguished private persons.[823] The tribunes sometimes gave the privilege to freedmen,[824] to foreign kings,[825] and to ambassadors.[826] The early republic did not allow women to be present in political meetings;[827] but in time this severity began to relax. Livy[828] represents the elder Cato as saying that his generation permitted women to take part in affairs of state and to interfere in contiones and comitia—evidently an exaggeration, as the context proves that the women referred to did not actually come into the assembly, and the speaker intimates that custom disapproved of their doing so. From the time of the Gracchi they occasionally spoke in public. Dio Cassius[829] states that Tiberius Gracchus brought his mother and children into a contio to join their entreaties with his; and according to Valerius Maximus[830] a tribune of the plebs required Sempronia, sister of the Gracchi, to come forward in a similar meeting and give her opinion on the subject under consideration. In the year 43 some ladies attended a contio to protest against being taxed by the triumvirs. Hortensia spoke for the complainants.[831] It was an accepted custom that no tribune should intercede against a measure till an opportunity had been afforded private persons to speak for or against it.[832] When after the victory of Pydna a tribune of the plebs had introduced a motion to grant a triumph to Aemilius Paulus, and the debate had been thrown open to the assembly, all for a time remained silent, for no doubt was entertained as to its passing; but finally Servius Galba, who as a military tribune had served under Paulus and was his enemy, came forward and obstructed the measure by a long harangue.[833] Although the president could, and perhaps often did, throw the debate open to the citizens in this way, he was not compelled to do so. The tribunician assembly was more deliberative than any other—a circumstance which accounts for its designation as a concilium.[834] Those invited to speak, if citizens, had to be of good standing and not under disqualification through a special law or usage. The rex sacrorum was prohibited not only from holding any other office but also from addressing an assembly.[835] The spendthrift[836] and the man condemned for extortion[837] were likewise forbidden. When the right was granted as a special distinction, the receiver was probably placed thereby on a footing of equal dignity with the magistrates.[838]
The president could also compel a citizen to speak. The holder of the imperium had a right to summon any man into a public meeting, and order him to answer any question put to him.[839] Tribunes of the plebs, however, who lacked the power of summoning, exercised this coercive function against citizens and even consuls, not through a direct right but by a usurpation, probably based on their power to arrest and imprison.[840]
The president extended permission by asking a man to give his opinion on the subject under discussion, and it was not in good order even for a magistrate to address the assembly unless invited, though he had ground for resentment if he was passed over in favor of private persons.[841] When Caesar as consul, 59, brought his agrarian bill before the comitia without the consent of the senate and in spite of its silent disapproval,[842] he first asked his colleague whether he had any objection to the proposal. Bibulus offered none but declared that he would allow no innovation during his consulship. Thereupon Caesar begged him for support, and requested the people to join in the entreaty, saying, “You will have the law on the sole condition that he is willing.” Then Bibulus, answering in a loud voice, “You will not have this law the present year, even if all of you want it,” left the assembly. Slighting the other magistrates, Caesar invited Pompey and Crassus to address the meeting, though they were but senators and therefore, as contrasted with magistrates, merely private citizens. After Pompey had spoken at length, commending the details of the law, Caesar asked if he would support it against opponents, at the same time requesting the people to beg of him this favor. They did so, doubtless by acclamation; and Pompey, greatly flattered because the consul and the people besought help of him, a private citizen, promised to stand by the law.[843]
A magistrate spoke from the platform, a private person from a lower position, presumably from one of the steps; for the chairman to bring a private speaker upon the stage was a cause of offence to his colleagues.[844] When the president granted an opportunity to speak, he had a right to fix the amount of time to be used. In the debate on the law for assigning provinces to Caesar and Pompey, 55, the presiding tribune granted one hour to Favorinus and two hours to Cato, both opponents of the measure.[845] The speaker could use the time in whatever way he pleased; a few persons by concert might waste the whole day in trivialities, as is sometimes done in the senate of the United States of America, so as to prevent voting on the subject for that date. In the case above mentioned Favorinus, doubtless for lack of real argument, exhausted his hour in lamentation over the shortness of the time allowed him,[846] and Cato spent his two hours on irrelevant or minor matters, merely that he might be silenced by the president while still appearing to have something to say. He persisted in speaking accordingly till an officer dragged him from the rostra and ejected him from the Forum. Even then he returned several times to interrupt the proceedings with his shouting.[847] If the speaker approved the measure, he might close with the words, “This law of yours and your purpose and sentiments I praise and most heartily approve”;[848] or more formally, “In my opinion this bill as presented ought to be passed, and may it prove well, auspicious, and fortunate both to yourselves and to the republic”;[849] or if opposed to the proposition, he might conclude with this form of disapproval, “It is my judgment that this law should by no means be repealed.”[850]
Sometimes the magistrates were invited in the order of their rank and afterward private citizens; in other cases, especially in tribunician contiones, private persons were called first that they might speak with perfect freedom, uninfluenced by the opinion of their magistrates.[851] As the president had absolute control, he could alter the usage to suit his own interest, and could certainly reserve to himself the advantage of speaking last.[852] It often happened that there was not enough time in one day for the discussion of a question. In that case the magistrate adjourned the meeting to a specified date.[853]
After the deliberation, or after the formality of opening the contio which was merely preliminary to the comitia, the president ordered the assembly to form into voting groups—curiae, centuries, or tribes. He could say, for instance, “I order you to take your proper places in the comitia centuriata,”[854] or more generally, “If you think fit, quirites, move apart (into your voting groups).”[855] At the same time he ordered the departure of all who lacked the qualification for voting.[856] The lictors of the magistrates with imperium and the beadle (viator) of the tribune attended to clearing away the unqualified.[857]
Schulze, C. F., Volksversammlungen der Römer, 141 ff., 243 ff.; Rubino, J., Röm. Verfassung und Geschichte, 240-53; Lange, L., Röm. Altertümer, ii. 715-23, and see indices s. v.; Mommsen, Th., Röm. Staatsrecht, i. 191-209; iii. 370-8, and see index s. v.; Willems, P., Droit public Rom. 158 f.; Herzog, E., Röm. Staatsverfassung, i. 632-6, 1057 f., and see index s. v.; Karlowa, O., Röm. Rechtsgeschichte, i. 48 f., 379-81; Madvig, J. N., Verf. u. Verw. d. röm. Staates, i. 219; Soltau, W., Altröm. Volksversammlungen, 37 ff.; Humbert, G., Contio, in Daremberg et Saglio, Dict. i. 1484 f.; Liebenam, W., Contio, in Pauly-Wissowa, Real-Encycl. iv. 1149-53; Ruggiero, Diz. ep. ii. 1185, s. Contio; Lodge, G., Lex. Plaut. i. 307, s. Contio; Forcellini, Tot. Lat. Lex. ii. 349 f., s. Concio; Dupond, A., Constitution et magistratures Rom. 60-3; Ihne, History of Rome, iv. 40-2.
VIII. THE CALATA COMITIA
In seeking for the origin and primitive character of the Roman assembly we are enabled by comparative study to reach a stage of growth far anterior to the beginnings of Roman tradition. In its earliest known form the European popular assembly had the following characteristics, provisionally enumerated here, but established in the next chapter: (1) the people who attended were the mass of freemen of a tribe, especially the warriors; (2) they stood or sat promiscuously, without reference to sub-tribal groups; (3) measures were proposed by none but chiefs or nobles, generally after previous discussion in council, the common members wholly lacking initiative; (4) the speakers were as a rule, though not exclusively, chieftains; (5) the vote was by acclamation, the clash of weapons, or some similar demonstration; as a correlate of (3) and (4) may be added, (6) sovereignty, so far as the idea existed, resided not in the assembly, which of itself could take no action, but in the king and chieftains, who made use of the assembly (a) for the publication of news or of projects, (b) for securing by their eloquence the coöperation of the tribe in a plan already formed in council. However far developed beyond this crude institution the comitia curiata or the comitia centuriata of the republican period may have been, traces of all the characteristics above mentioned may be found in the historical Roman assembly[858]—a fact which justifies the comparative method of approach to the subject.
We need not hesitate to begin with the unorganized contio as the earliest form of Roman assembly, to which we may attach the other features of the European gathering named above. The first problem is to determine under what influence and for what purpose the gathering of the people came to be organized in curiae. The notion that the object was primarily for voting is groundless. The Athenians had the germ of a tribal assembly in the division of the people by phylae on the occasion of ostracophory[859] and of the passing of other privilegia (νόμοι ἐπ’ ἀνδρί). The organization was not in this case for the purpose of using the tribes as voting units, but merely for bringing order and solemnity to the proceeding. Apparently the assembly of Alamanni was arrayed in military form for ratifying emancipations,[860] though in the process the military companies did not vote as units. In like manner, but for a wider range of functions, we find at Rome the meeting of the people in curiae, less frequently in centuries, merely for listening, for witnessing, or for receiving purification. The circumstances that the business of such assemblies was largely religious, and of such a character that it must have originated in the earliest Roman times, and that in the greater number of cases these gatherings were under sacerdotal presidency suggest that the sacerdotes, particularly the pontiffs, introduced the curiate organization from the army to make their religious meetings more orderly and dignified.[861]
All assemblies which met under pontifical presidency for religious purposes were called calata,[862] evidently from “calare,” a verb which must originally have been in common use in the sense of “to call,” but which in historical time was restricted to the technical language of the sacerdotes.[863] In the latter connection it designates the peculiar method of summoning used by the pontiffs.[864] Probably, at least in earlier time, their calatores acted as curiate lictors in convoking the calata comitia curiata,[865] over which they presided. In all meetings of the kind in the regal period the people were grouped in curiae; under the republic the centuriata comitia calata were also used for certain purposes.[866] The usual meeting-place of the calata comitia curiata was in front of the curia Calabra on the Capitoline Hill.[867] With reference to their object, they may be classed as non-voting and voting; the former were purely religious, the latter were for the settlement of questions which were in part civil.[868] First to be noted of the non-voting assemblies were those in which the people gathered in comitia under the presidency of the king,[869] in the republic under the rex sacrorum, to hear the proclamation of the fasti. On the calends of each month a pontifex minor, as clerk of the college,[870] announced to them on what day, whether the fifth or seventh, the nones would come.[871] On the nones the king again summoned the people to hear the calendar of the month,[872] read probably by the same pontifex minor. This custom fell into disuse with the publication of the calendar in the Forum, beginning in 304.[873]
Equally passive were those comitia calata which under the presidency of the supreme pontiff witnessed the inauguration of the three flamines maiores,[874] probably of the king in the regal period, and certainly of the rex sacrorum under the republic.[875] As warlike Mars had his shrines outside the pomerium,[876] his chief temple being in the Campus Martius,[877] it is a probable conclusion that his flamen was inaugurated there—in the regal period in some form of military assembly, under the republic in the comitia centuriata.[878] The inaugural ceremonies were performed by an augur;[879] in the case of the sacerdotes it was the supreme pontiff who requested this service of him,[880] whereas the king could doubtless command an augur without the coöperation of the pontiff. A closely related function was the appointment of Vestals by lot, under the conduct of the supreme pontiff in a public assembly, probably the calata comitia.[881] The destatio sacrorum and the abjuration of social rank, other acts which these comitia merely witnessed, will be considered in connection with the transitio ad plebem and the adrogatio.[882] The ceremonies attended to by the rex sacrorum on March 24 and again on May 24 may have been in comitia calata, though this is doubtful.[883]
Assemblies of the people were organized in curiae by the pontiffs for the religious purposes mentioned above, while political measures, so far as submitted to the people, continued for a time, we may suppose, to be decided by din in contiones. But when a desire for a more precise vote began to be felt, the curiate organization naturally offered itself as most convenient for the purpose. The contention that in primitive Rome, as among other early peoples,[884] the assembly expressed its feeling or opinion by noisy demonstration finds strong support in the most probable derivation of suffragium, “vote,” which connects it with frangere, fragor, “a breaking,” “crash,” “din,” “applause,”[885] the prefix sub- expressing the dependence of the action upon the proposal of the speaker, as in the military succlamare, succlamatio.[886] We may well believe that even after the organization of the assembly as comitia—that is, in curiate, centuriate, or tribal divisions[887]—the voting within the component groups continued for a time to be by din, as is suggested by the phrase sex suffragia, applied to the six oldest groups of knights in the comitia centuriata.[888] Voting by heads in large gatherings is in fact a slow, cumbersome process, the product of a well-developed political life. In all probability it originated in the centuriate assembly—in which the military array facilitated the taking of individual opinion[889]—and afterward extended to the other comitia. This line of reasoning suggests that when in the regal period a desire began to be felt for a more precise vote, and the curiate organization readily offered itself for the purpose, the expedient was adopted of taking the vote of each curia in order by din and then of deciding the question at issue by a majority of the thirty curial votes.[890] There can be little doubt that this step also was first taken by the pontiffs.
The testamentary calata comitia met twice a year, probably on fixed days.[891] It has been a disputed question whether the oldest form of testament here referred to required a vote of the people. Rubino[892] strongly upheld the negative on the ground (1) of analogy with the procedure in inaugurations, (2) of analogy with other forms of testament, none of which required a vote, (3) of the word testamentum itself, which refers to witnessing, (4) of the conviction that the patricians would not leave to the popular assembly the making of private law, (5) on the authority of Theophilus,[893] who mentions the people’s witnessing of the testament, (6) on the statement of Gellius[894] that wills of the kind were made “in populi contione.” Against this reasoning may be urged (1) the analogy from the adrogatio, (2) the analogy from the testamentary adoption, to both of which cases the simple testament was similar, and both of which required a vote of the people,[895] (3) the consideration that the act of witnessing in the assembly did not necessarily exclude a vote, (4) the statement of Gaius[896] that calata comitia were convoked “for making”—not for witnessing—testaments, (5) the circumstance that the contio was often a preliminary stage of the voting assembly[897] in addition to the fact that pontifical language applies the term to comitia in general.[898] These arguments offset all the points offered by Rubino, unless it be the fourth, which is a purely subjective consideration. Arguments (1), (2), and (4) are especially effective for establishing the fact of a vote in the case under consideration. But the problem can be most satisfactorily solved (6) by comparative investigation. In the constitution of the early Indo-European family the estate belonged jointly to all the male members, and for that reason could not be given away by the pater.[899] The primitive Germans accordingly made no wills, but left their property to their children, or in failure of children to the near kin.[900] In Attica the right to bequeath was instituted by a law of Solon, which allowed it to those only who had no legitimate sons;[901] in Sparta the right was introduced by Epitadeus, perhaps early in the fourth century B.C.[902] Testaments were unknown in Gortyn at the time when the Twelve Tables of this city were published,[903] and similar conditions existed in other states of Greece.[904] The rule holds, too, for ancient India.[905] The Slavic householder could not alienate his land without the consent of the community.[906] As there is no reason to assume a more advanced condition for primitive Rome, we may conclude that, as indicated above, the calata comitia not only witnessed but ratified testaments.[907]
Mommsen has attempted to fix these days as March 24 and May 24,[908] on which the rex sacrificulus performed comitial ceremonies not clearly described by the sources.[909] He admits, however, that the testamentary comitia met under the pontifex maximus rather than under the rex sacrorum[910]—a fact directly opposed to his contention. We should be surprised also to find the testamentary days so close together.[911] But the most effective argument against his view is that this function performed by the rex sacrorum could not have been the holding of comitia, for the time during which it continued was nefas.[912] The ancient authorities state that “the sacrificial king, after performing sacred rites, comes into, or makes a sacrifice in (venit or litat), the comitium,”[913] but they do not mention an assembly; hence we may infer that in the fasti for these days reference is to some other function than the holding of comitia. The form of testament above described fell early into disuse,[914] so that the conditions and ceremonies attending it became a subject of study for antiquarians.
Adoptions ordinarily came before the praetor. The legal object was the perpetuation of the family and its religion. The law granted the privilege accordingly to those only who had no children and who were incapable of having children. It required further that the act should not imperil the continuance of the family from whom the adopted came.[915] Adrogatio was the adoption of a person who was his own master and who accordingly consented to pass under the paternal power of another. The word signifies that the act to which it applies required a vote of the people.[916] It was not undertaken rashly or without careful consideration.[917] The persons concerned were required first to present the case to the college of pontiffs, who took into account “what reason any one has for adopting children, what considerations of family or dignity are involved, what principles of religion are concerned.”[918] The age of the man who wished to arrogate was considered—whether in this respect he was capable of having children of his own, and care was taken that the property of the arrogated person should not be insidiously coveted.[919] The adrogator was asked whether he wished the candidate for adoption to be his real son, and the candidate was asked whether he would allow himself to be placed in this condition;[920] and the testimonies were confirmed by an oath formulated by Q. Mucius Scaevola.[921]
If the pontiffs gave their consent, the case came before the comitia curiata under the presidency of the chief of the college,[922] who put the question in the following form: “Do you wish and order that L. Valerius be the son of L. Titus by the same legal rights as if born of the father and mother of that family, and that the latter have the power of life and death over the former as a father over a son? This order I request of you, Romans, to grant, just as I have pronounced the words.”[923] The curiae decided by vote.[924] At the same meeting the arrogated son was required to declare that he forsook the religion of the family or gens of his birth—detestatio sacrorum[925]—and by a similar declaration the adrogator received him into the sacra of the new family.[926] This form of adoption could not apply to youths before they had put on the manly gown, or to wards or women; for children and women had no part in an assembly, and guardians were not allowed under any circumstances to place their wards in the power of another.[927]
A modification of adrogatio is testamentary adoption, of which the only well-known case is that of Octavius, the heir of the dictator Caesar. Octavius came before a praetor with witnesses and formally accepted the inheritance;[928] afterward he was declared adopted by a vote of the curiae.[929] As this case is nearly akin to the adrogatio, there can be no doubt that the vote was taken in the calata comitia under pontifical presidency.[930]
Distinct from the adrogatio, though analogous to it, was the direct passing of individuals and of gentes from the patrician to the plebeian rank—transitio ad plebem. The motive was a desire to qualify for the tribunate of the plebs,[931] or more generally to widen the range of one’s eligibility to office.[932] The history of the republic affords several instances of the transition of individuals;[933] and two plebeian gentes, the Octavia[934] and the Minucia,[935] boasted of having passed over from the patricians. Even if these boasts rest upon genealogical falsifications,[936] the Romans thought such an act legally possible; and they formulated a process applicable to every case whether of individuals or of gentes. It was through some other ceremony than the adrogatio, for the latter could not apply to groups of persons. Clodius was following the more general procedure here referred to when in the year 60 he tried to make himself a plebeian without recourse to adrogatio. First he abdicated his nobility by an oath, probably taken in the comitia calata;[937] then coming before an assembly of the plebs, he held himself ready to receive plebeian rights through a resolution introduced by the tribune Herennius.[938] The process allowed the retention of the name, sacra, and all other privileges not dependent on the patriciate.[939] But Metellus, the consul, objected that a curiate law was needed to make the act valid, and the senate evidently agreed with him.[940] Metellus may have had in mind the transition through the adrogatio, which required a curiate law, or more probably he was thinking of a vote of the curiae in addition to the other formalities which Clodius was passing through.[941] The complete process accordingly would have been the abjuration of the patriciate, confirmed by a curiate law, and the reception of plebeian rights through a plebi scitum. Clodius was not so foolish as to suppose that a process of transitio invented by himself would prove acceptable to the senate and magistrates, and must therefore have followed as closely as possible the formula which he believed to be legal. But when Metellus raised the objection, and when the tribunes persisted in interceding against the plebi scitum,[942] he yielded for the present, and in the following year had himself arrogated by a plebeian named Fonteius, from whom he was forthwith emancipated.[943] This procedure, too, allowed him to retain the gentile name of his birth,[944] his imagines and sacra,[945] and consequently his inheritance. The oath taken in the calata comitia accordingly was not the detestatio sacrorum usual in arrogations, but a form of declaration which reserved these privileges, with the understanding that in this case the arrogatio was not for the customary object but to enable him to change his rank.[946]
Analogous to the transitio ad plebem is the elevation of a plebeian to the patrician rank. The Romans believed that eminent plebeians, including foreigners of distinction newly admitted to citizenship, were sometimes granted the patriciate not only through the regal period but also in the opening years of the republic. For the republican age they represented the bestowal as a double act, a resolution of the people followed by coöptation into the senate.[947] In stating that the first consuls chose the best men from the commons, made them patricians, and with them filled the senate to the number of three hundred, Dionysius[948] apparently has in mind the consuls’ function of recruiting the senate before the Ovinian legislation,[949] together with their initiative in granting the patriciate. The Roman view that the bestowal required a vote of the people is further proved by the procedure of Julius Caesar and of Octavianus in creating new patricians; for in this function they doubtless followed tradition as nearly as possible. In 45 a plebi scitum,[950] proposed by L. Cassius Longinus and supported by a senatus consultum,[951] empowered Caesar to recruit the patrician rank. Octavianus proceeded in a similar manner except that a consular law,[952] approved also by a senatus consultum,[953] was passed for the purpose. As the object was religious, we may suppose that the qualifications of the candidates were previously examined by the pontifical college. On the analogy of the transitio ad plebem it may be assumed further that the candidate abjured his plebeian rank in the calata comitia, which then confirmed his declaration by vote.[954]
But whether the Romans were right in supposing patricians to have been created in the early republic has been doubted. Mommsen[955] takes the ground that when the curiae ceased to be exclusively patrician, elevation to the rank became impossible, and that therefore no cases of the kind occurred after the fall of the kings. But in such a matter it is absurd to speak of impossibilities; everything was possible which the governing power approved, and the argument falls when its basis, the purely patrician state, has been removed.[956] The cessation was in fact due to the growing exclusiveness of the patricians, who as they came to supplant the king in the government, learned to value their privileged position so highly they were unwilling longer to share it with others. Just when the closing of their rank was effected has not been ascertained, but there is no good reason for rejecting the Roman view that for a time after the fall of the kings plebeians continued to be admitted: in reality the indications are strong for a relatively late closing.[957]
We may next inquire how patricians were created in the time of the kings. As the history of the regal period is in general a reconstruction with material drawn from later time, so in this particular case ancient writers sometimes date back to the age of the kings the usage of the republic. Dionysius[958] accordingly states that “the Romans by vote transferred Servius Tullius from the plebeian to the patrician order, just as they had previously transferred Tarquin the Elder and still earlier Numa Pompilius.” But the Romans preferred to reconstruct the process on an entirely different principle. Regarding the kings as the founders of all the fundamental institutions, the patricians looked upon their superior rank as a gift of these monarchs. The patriciate depended upon senatorial membership, which was at the disposal of the kings.[959] This view is well adapted to explain the creation of the senate; but for the period after its establishment Livy[960] adds to the adlectio of the king a coöptatio by the patres (senators). Livy’s account of the usage here given is reasonable; the king indicated his preference as to the choice of advisers, but a powerful council, such as the senate must have been, at least in the later regal period, would have the final decision on the question of admitting a new member. The conclusion is that toward the end of the monarchy, if not from the beginning, plebeians were admitted to the senate, and through it to the patriciate, by the coöperation of the king and the senate, the people having nothing to do with the matter.[961] But after the overthrow of the monarchy the vote of the people was substituted for the will of the king, coöptation by the senate continuing as before.[962]
The patriciate was acquired not only through bestowal by the state, but also through the adoption of a plebeian into a patrician family. Several cases of the kind have been ascertained.[963] The act took place before the praetor[964] and did not concern the comitia. Probably a preliminary examination by the pontiffs was necessary to adoptions as well as to arrogations.[965]
Rubino, J., Röm. Verfassung, 241-53; Mommsen, Röm. Forschungen, i. 123-7, 397-409; Röm. Chronologie, 241 ff.; Röm. Staatsrecht, ii. 33-41; iii. 38-40; Lange, L., Röm. Altertümer, i. 131-4, 177 f., 356 f., 362, 398-401, 459, 795; ii. 518, see also indices s. Adrogatio, Calatores, Detestatio sacrorum; Transitio ad plebem, in Kleine Schriften, ii. 1-90; Madvig, J. N., Verf. u. Verw. d. röm. Staates, i. 222-6; Herzog, E., Röm. Staatsverfassung, i. 108-11, 1062-4, 1075; Mispoulet, J. B., Institutions politiques des Romains, i. 202 f.; Willems, P., Droit public Rom. 53 f.; Drumann-Gröbe, Gesch. Roms, ii. 187 ff.; Wissowa, G., Religion und Kultus der Römer, 440 f.; Hallays, A., Comices à Rome, 16-9; Mercklein, D. L., Coöptation der Römer, 11-44 (of the gentes and of the senate); Helbig, W., in Comptes rendus de l’acad. des inscr. et belles-lettres, xxi (1893). 350-3; Büdinger, M., Cicero und die Patriciat, in Denkschr. d. Kaiserl. Akad. d. Wiss. Phil.-hist. Cl. xxxi (1881). 211-73; Der Patriciat und das Fehderecht in den letzten Jahrzehnten der röm. Rep., ibid. xxxvi (1888). 81-125; Baudry, F., Adrogatio, in Daremberg et Saglio, Dict. i. 83 f.; Saglio, E., Calator, ibid. i. 814; Humbert, G., ibid. i. 1375 f.; Detestatio sacrorum, ibid. ii. 113; Leonhard, Adrogatio, in Pauly-Wissowa, Real-Encycl. i. 419-21; Samter, Calatores, ibid. iii. 1335 f.; Kübler, Calata comitia, ibid. iii. 1330-4; Ruggiero, E., Diz. ep. ii. 1185; Smith, Dict. i. 26 f.; Nettleship, Contrib. to Lat. Lexicog. 400.
IX. THE COMITIA CURIATA
The primitive European assembly, of which the Roman is a variety, may be reconstructed in broad outline by a comparison of the forms and functions of the institution as found among the earliest Italians, Greeks, Celts, Germans, Slavs, and kindred peoples, among whom it differed in detail while possessing the same general features. The usual tendency of development was toward the abridgment of popular powers to the advantage of the nobles or of the king;[966] but in some instances may be discovered a growth in the opposite direction.
Generally the assembly did not have fixed times of meeting but convened only when called by the king or chiefs. This is known to be true of the Homeric Greeks,[967] of the Slavs,[968] and of the Romans,[969] and may be regarded as the more primitive condition. In addition to extraordinary sessions the German assembly acquired the right to meet regularly twice a month at fixed times[970]—a right which gave the people a valuable political advantage. In like manner the Lacedaemonians met once a month;[971] the Athenians probably once a prytany (tenth of a year) after Cleisthenes, and certainly four times a prytany after Pericles.[972] The Celtic assemblies convened annually or triennially at fixed seasons.[973] Among all these peoples, however, subjects for consideration were presented by none but the king or chief, the assembly itself being wholly without initiative. Such subjects were as a rule previously discussed in a council of chiefs or nobles.[974] The person who summoned the assembly naturally made the first speech, which explained the purpose of the meeting and the character of the subject to be considered. If it was an enterprise in which he desired the support or coöperation of the community, he attempted to rouse for it the enthusiasm of his hearers.[975] The discussion might then be continued by the chiefs or any others distinguished for age, military prowess, or eloquence.[976] Among the Germans, who possessed more than the average degree of liberty, any one spoke who could gain a hearing; in the Homeric assembly a commoner who dared lift up his voice against king or noble was liable to severe chastisement as a disorderly person;[977] and conditions at Rome, as well as in Etruria,[978] seem to have been equally unfavorable to the ordinary freeman.
A considerable variety of business came before the assembly. It might be summoned to hear the announcement of news of interest to the community,[979] the reading of the calendar for the month,[980] the declaration of a policy or opinion by a king or chief,[981] or for witnessing acts affecting the interests of the community.[982] More important were judicial cases,[983] questions of war and peace,[984] and elections.[985]
The problem as to the relative power of the king and council on the one hand and of the assembly on the other is difficult. It was a disadvantage to the people, over and above their lack of initiative, to have no means of precisely expressing their will. The Greeks signified their approval by acclamation,[986] the Germans by clashing their weapons,[987] and the Celts by both;[988] either demonstration aimed to express, not the will of the majority,[989] but the intensity of conviction on the part of the assembly as a whole. It lacked as well the means of legally enforcing its will.[990] The Achaeans in assembly approved the petition of Chryses, a suppliant priest; nevertheless King Agamemnon rejected it.[991] After the people had divided the spoils of war, Agamemnon seized the prize they had given another.[992] The Trojans were ready to surrender Helen for the sake of peace; but Priam, to gratify his son, refused, and the war went on.[993] In his relations with individuals the king often acted unjustly and tyrannically. Even in affairs which concerned the entire community he might take large liberty. Without consulting the assembly he could count on the support of the people in a war of defence. Treaties of peace, which were often guest-friendships and intermarriages between royal families,[994] did not come before the people for ratification as a right, but only in cases in which their pledge seemed necessary for the prevention of private warfare. The right of the magistrate to conclude peace with or without discussion in the council or senate was recognized by the states of Italy as late as the Second Samnite war.[995] The king might even declare an offensive war on his own responsibility, if without consulting the people he could feel sure of their support.[996] Enterprises requiring their coöperation he usually submitted to them to win their approval, as he had no means of coercing the entire community. His independence of the assembly increased with the growth of heredity. The idea of sovereignty, strictly speaking, was unknown to primitive times; yet so far as people thought of political power, they assigned it to the king and council.[997] Nevertheless the fact of the assembly’s existence and the need of eloquence for persuading it prove it to have been a real force. The suppression of the German assembly or the prohibition of carrying arms to the meeting was looked upon as intolerable tyranny.[998] For the disturbance of an Irish assembly the penalty was death.[999] Public opinion was a check on royalty,[1000] and in extreme cases the people rebelled and killed their king.[1001]
The strengthening of the kingship naturally tended to weaken the assembly. The Lacedaemonian kings had a right to make war on whatever state they pleased, and any citizen who obstructed this power was accursed;[1002] if, too, in anything the people gave a wrong decision, the kings and council could set it right.[1003] Under the Frankish monarchy the general assembly seems to have entirely disappeared in the sixth century A.D., to be revived in the latter part of the seventh,[1004] in a form which took little account of the commons.[1005] In the other Germanic tribes which entered the Empire the effect of the migration was to strengthen the king and to weaken in a corresponding degree the power of the people.[1006] In Russia Tartar domination, converting the legitimate princes into tyrants, effected the downfall of the assemblies.[1007] The building up of large states, too, necessarily degrades or destroys popular gatherings.[1008]
The heritage of the Roman assembly from the earlier tribal time must have been slight as well as vague—a heritage diminished further by the growing power of the king and nobles. The assumption has often been made that from the beginning the Roman assembly was sovereign. The view rests in part, however, on a confusion of two ideas which should be kept distinct. In its broadest sense populus designates the state, which is sovereign whether it expresses its will through the king, the senate, or the popular assembly, or through the concurrence of two or more of these elements. In interstate relations it always has this meaning. More narrowly populus signifies the masses of citizens in contrast with the magistrates or with the senate.[1009] In the latter sense it cannot be said that the populus was from the beginning sovereign. The Romans themselves of later time understood that in the regal period the senate had the wisdom to advise, the king possessed the imperium, whereas the people enjoyed but a limited degree of freedom, right, and power.[1010] Their condition was not liberty but a preparation for it.[1011] Their assembly, like that of other early Europeans, had no power of initiative; it met only when summoned by the king, and could consider those matters only which the king brought before it. Its object must have been chiefly to receive information and to witness acts of public importance. In no case did the king call upon the assembly for advice; counsel belonged exclusively to the wise elders, who composed the senate;[1012] and should he wish to instruct the people in the merits of a proposed measure, he would himself address them and perhaps invite the most respected senators or his most trustworthy supporters among the private citizens to give the masses the benefit of their wisdom.[1013] In other than judicial assemblies the privilege of speaking must have been sparingly granted.[1014] Finally no elective or legislative act of the curiae was valid without the authorization of the senate (patrum auctoritas).[1015]
With reference to the specific rights of the assembly, Dionysius[1016] states that Romulus granted the commons three prerogatives, (1) to elect magistrates, (2) to ratify laws, (3) to decide concerning war, whenever the king should refer the matter to them. Livy’s[1017] stricture on the absolutism of Tarquin the Proud implies, too, that constitutionally the assembly should have had power to decide on peace and war. But stress should be laid on the admission of Dionysius that probably all the questions above enumerated, or at least those of peace and war, were referred to the assembly at the pleasure only of the king—that the decision of them was not a right of the people, but a concession on the part of the sovereign.[1018] Still more important, these generalizations are in great part invalidated, as Rubino[1019] has shown, by the testimony of their authors. When either refers to individual cases of treaty-making under the kings, he never connects the assembly with the proceedings.[1020] It is significant, too, that the formula of treaty makes the king the only actor, taking no account of the people.[1021] Usually peace continued merely through the lifetime of the king who contracted it,[1022] but a truce for a definite period was binding to the end, even after his death.[1023] Under the republic to the time of the decemvirs the treaty-making power resided in the consuls and senate.[1024] Ordinarily either a senatus consultum empowered the magistrates to use their discretion[1025] or sanctioned the agreement when made.[1026] More rarely the senate treated directly with ambassadors from the enemy.[1027] The clamor of the plebeians sometimes prevailed upon the senate to negotiate for peace;[1028] and at other times it was merely by accident that the people heard of the conclusion of a treaty.[1029] After the decemviral legislation the plebeian assembly of tribes slowly acquired the right of ratification;[1030] in fact it was not till the Second Samnite war that their vote came to be essential.[1031] Among the archives devoted to treaties and alliances, accordingly, senatus consulta and plebiscites alone are mentioned.[1032] The very fact that in the later republic the ratification of treaties belonged exclusively to the tribal assembly[1033] proves that it was an acquired right of the people; for we may set it down as a fixed principle that the curiae and the centuries yielded none of their prerogatives to the tribes.[1034]
As regards the right of the people to declare war a distinction must be drawn between defensive wars, which, admitting neither choice nor delay,[1035] could not be referred to their decision, and aggressive wars, which were in the option of the state to undertake or avoid. Yet even in the case of offensive wars, though the approval of the people was doubtless often sought, they exercised under the kings and in the early republic no real right. When the king or magistrate felt that Rome had suffered injury from a neighboring state, he despatched an ambassador to seek reparation. If the demand was not complied with, the ambassador, calling Jupiter and the other gods to witness the injustice, added: “But we shall consult the elders in our own country concerning these matters, to determine in what way we may obtain justice.” When the messenger had returned to Rome and had made his report, the king consulted the senate substantially in these words: “Concerning such matters, differences, and disagreements as the pater patratus of the Roman people, the quirites, has conferred with the pater patratus of the ancient Latins and of the ancient Latin peoples—which matters ought to be given up, performed, discharged, but which they have neither given up nor performed nor discharged—declare,” said he to the senator whose opinion he wished first to obtain, “what you think.” Then the elder thus questioned replied, “I think the demand should be enforced by a just and pious war; and therefore I consent to it and vote for it.” Then the rest were asked in order, and when a majority agreed in this opinion, war was thereby voted.[1036] In all this account there is no mention of the people; but afterward when the fetialis reached the border of the enemy’s country, and pronounced the formula for the declaration of war, he included a statement that the populus Romanus had ordered it: “Forasmuch as the populus Romanus of the quirites have ordered that there should be war with the ancient Latins, and the senate of the populus Romanus of the quirites have given their opinion, consented, etc., I and the populus Romanus declare and make war on the peoples of the ancient Latins.”[1037] In this connection, as in all formulae applying to international relations, populus means not the assembly but the state; hence the use of the word cannot be taken as evidence of the existence of a popular right to declare war.[1038] Besides this formula we have in support of such a right the general statement only of Dionysius and the implied idea of Livy, referred to above,[1039] neither of which is in itself of especial weight. On the other hand the individual kings seem to have been free to make war at their discretion. The fact that peace and war are represented as depending upon the character and inclinations of the king[1040] further establishes the real view of the Roman historians. In a succeeding chapter[1041] it will be made clear that not till 427 did the centuriate assembly acquire the right to declare an aggressive war; probably not till some time afterward was this right established as inalienable. Previous to that date the warriors, perhaps in a contio, were occasionally called on to give their approval, doubtless, as has been explained above,[1042] to increase their enthusiasm for the war.
With reference to the legislative activity of the assembly under the kings, it is necessary to call attention to the fact that among all peoples in the earlier stages of their growth law is chiefly customary.[1043] At the time of her founding Rome inherited from the Latin stock, to which her people mainly belonged, a mass of private and public customs, which, owing their existence to no legislative power, were the result of gradual evolution. Under such conditions, as in Homeric Greece, the king or chief settled disputes in accordance with these usages, though in the general belief his individual judgments came directly to him from some god. The Homeric king received his dooms—θέμιστες—and even his thoughts from the gods.[1044] The mythical or semi-mythical legislators of Greece, as Minos, Lycurgus, and Zaleucus, were given their laws by revelation. In like manner Numa, who may be considered a typical legislator for primitive Rome,[1045] received his sacred laws and institutions from the goddess Egeria;[1046] and Romulus, the first great law-giver,[1047] was a demi-god, who passed without dying to the dwelling-place of the immortals.[1048] Roughly distinguished, Romulus was the author of the secular law, Numa of the sacred.[1049] In general the Romans of later time looked back to their kings, the founders of their state,[1050] as the authors not only of their fundamental laws and institutions but even of their moral principles.[1051] Doubtless the Roman view of the ancient king is an image of the republican dictatorship, of the extraordinary magistratus rei publicae constituendae, of the consul freed from his various limitations;[1052] but the picture, stripped of the distinctness which came with the gradual formulation of constitutional usage, is, as comparative study shows, true to the primitive condition which it aims to represent.
From this early conception the idea of human legislation gradually emerged. Not daring on his own responsibility to change a traditional usage which the people held sacred, the magistrate found it expedient to obtain their consent to any serious departure,[1053] with a view not to legalizing the proposal, but to pledging the people to its practical adoption. When and how the primitive acclamation gave way to the orderly vote of the comitia curiata cannot be ascertained from the sources.[1054] After this stage was reached, the transaction between king and people had the following form: “I ask you, quirites, whether you will consent to, and consider it right, that T. Valerius be a son to L. Titus as rightfully and legally as if born of the father and mother of the family of the latter, and that the latter have the power of life and death over the former as a father over his son. These (questions) in the form in which I have pronounced them, thus, quirites, I ask you.”[1055] The magistrate brought his formulated request before the people (legem ferre), who accepted it (legem accipere); the question (rogatio) was directed not to the assembly as a whole but to the component citizens, who individually replied ut rogas, “yes,” or antiquo, “no.”[1056] By this procedure the citizens bound themselves to the acceptance of the proposition on an oral promise, which was the strongest form of obligation known to them. Herein is involved the fundamental idea of lex, which was not a command addressed by the sovereign to the people or a contract between ruler and ruled, but an obligation which the citizens took upon themselves at the request of the magistrate.[1057] The verb iubere, which designates the people’s part (populus iubet) in the passing of laws and resolutions, did not originally have the meaning “to order,” which belonged to it in the age of Cicero. Some have derived it from ius habere, “to regard as right;”[1058] others from judh, an extension of the root ju, “to bind.”[1059] In either case it seems to mean no more than to accept or hold as right or as binding. In its widest sense lex denotes any obligation which one party takes upon himself on the offer of another. In this meaning it may apply to a business contract,[1060] in which alone the obligations are reciprocal, to the instruction imposed by a superior magistrate upon an inferior,[1061] to the auspicium which the magistrate formulates and the god accepts,[1062] to the ordinance which the subject, without being consulted, receives willingly or unwillingly from the ruler (lex data),[1063] as well as to the statute established by the question of the magistrate and the affirmative answer of the citizens (lex rogata). The leges of the community, with which alone the present discussion is concerned, were distinguished as publicae.[1064] A lex of the kind was not necessarily general,[1065] but applied as readily to an individual citizen[1066] as to the entire body, to a declaration of war,[1067] or the banishment of a citizen,[1068] as well as to a universal rule of conduct. In the earlier time the lex rogata, or simply lex, seems to have designated any act of an assembly, elective or judicial as well as law-making in the modern sense.[1069] But in the time of Cicero it had come to mean any act of an assembly which was neither an election nor a judicial decision,[1070] and in the latter sense the word is used in this volume.
The acceptance of a proposition by the citizens obligated themselves[1071] but not the government. The king, who retained office for life and was irresponsible, could not be held amenable to law; against a tyrannical ruler the only resource was revolution. Although the republican magistrates possessed remarkably great power, as temporary functionaries they belonged to the people, along with whom they were bound by the laws.[1072]
To the end of the regal period the legislative activity of the people remained narrowly restricted. The body of leges regiae, described as curiate by Pomponius[1073] on the supposition that they were passed by the assembly under royal presidency,[1074] was little more than the ius pontificum—the customary religious law—with whose making the curiae had nothing to do.[1075] If the king wished to admit new citizens,[1076] erect public works, levy forced labor on the citizens,[1077] reform the military organization,[1078] punish a man with chains or death,[1079] make a treaty, or even declare an offensive war, no power compelled him to submit the measure to the citizens. Although he must often have found it expedient to engage their coöperation in national enterprises, or more rarely in a legal innovation,[1080] it may be stated with confidence that before the beginning of the republic the curiate assembly had not acquired the right to be consulted on any of these matters—that its slight activity in legislation and administration was a concession from the king rather than a right; for under the republic such activity, gradually increasing, belonged to the centuries and the tribes. We may accept without hesitation the principle that in form if not in substance the curiae retained all the powers which they had ever actually possessed.
Judicial business, which no one has ever assumed to be a primitive function of the Roman assembly, needs no long consideration here. Among the early Indo-Europeans the settlement of disputes and the punishment of most crimes were in the hands of the families and brotherhoods; only treason and closely related offences were noticed by the state; and these cases were tried by the king in the presence of the assembly.[1081] The religious ideas attaching to crime and punishment[1082] in early Rome suggest that the priests had the same connection with these matters there as among the Celts and Germans. That condition yielded to the growing authority of the king, who is represented by the ancients as wielding an absolute power of life and death over his people and as allowing in capital cases an appeal to the assembly at his own discretion.[1083] From the general conception of the relation between king and assembly as established in this chapter, it is necessary to infer that if the people had any claim to a share in the jurisdiction, it must have been slight as well as vague, and one which they were in no position to enforce.
A review of the individual kings might give the impression that an act of the assembly was unessential to filling the regal office. Not only were Romulus and Tatius kings without election,[1084] but according to Livy[1085] Numa’s appointment was made by the senate alone; and Servius ruled long and introduced his great reforms before his election.[1086] Tarquin the Proud to the end of his reign was neither appointed by the senate nor chosen by the people.[1087] From these four or five instances of kings who ruled without election, as well as from the fact that both the dictatorship—a temporary return to monarchy—and the office of rex sacrorum—the priestly successor to the monarch—were filled by appointment, we might infer that the kingship was not elective.[1088] But on the other hand the word interregnum, which could not have been invented in the republican period and which involves the idea of election, as well as the general custom of choosing kings among primitive European peoples, may be added to the authority of our sources[1089] in favor of an elective monarchy in earliest Rome. The nomination of the king by the competent person was perhaps acclaimed in a contio in some such way as among the early Germans. Such an election, we may suppose, was in the beginning legal without further action on the part of the people. But the accession of a king was a momentous event in the life of a generation—far more important than the annual declaration of war upon a neighbor—and the advantage of a formal vote of the curiate assembly, after its institution, was obvious both to the king and to the sacerdotes; it gave to the former the solemn oral pledge of obedience from the citizens, and to the latter an opportunity to influence the proceedings through the auspices and through the manipulation of the calendar.
Under this system the king after his appointment by his predecessor or by the interrex, and after the acclamation in contio if such action took place, convoked the curiae on the first convenient comitial day of his reign,[1090] having held favorable auspices in the morning, and proposed to them a rogation[1091] in some such form as the following: “Do you consent, and regard it as just and legal, that I, whom the populus has designated king, should exercise imperium over you?” This rogation, answered affirmatively by a majority of the curiae, became a lex curiata de imperio.[1092] The informal acclamation, if it was the custom, must have disappeared in time, and the passing of the curiate law was looked upon as the election proper.[1093]
Concessions to the people develop into popular rights. The citizens, deeply interested in the choice of a man who for the remainder of his life was to represent their community before the gods, lead them in war, and exercise over them the power of life and death, claimed as their first active political right the ius suffragii in the passing of this lex curiata de imperio. Hence after the institution of the republic and of the comitia centuriata, the curiae clung obstinately to this inalienable prerogative.[1094]
The development of the elective process outlined above is offered in explanation of the curious phenomenon that under the republic, while all other acts of the centuriate and tribal assemblies required no confirmation by the curiae, elections by these assemblies did require such a sanction. This explanation is the only one proposed which accords with the Roman interpretation of the peculiarity. According to Cicero it was provided that in the case of all elective magistrates the people should vote twice on each that they might have an opportunity to correct what they had done, if they repented of having conferred an office on any person. In the case of the censors this second vote was cast in the comitia centuriata; all other elective magistrates received it in the curiate assembly.[1095] Rubino[1096] and others have objected that Cicero’s interpretation of the curiate law is biassed by his desire to contrast the essentially antipopular character of the demagogue Rullus,[1097] who by the terms of his agrarian law would deprive the people of their right to vote even once in the election of officials, with the wise and moderate statesmen of old, who were so devoted to the people as to allow them two opportunities to express their choice in the case of each magistrate. The orator, it is urged, could not himself know the original intention of the usage; and his interpretation is contradicted by the fact that the person who proposed the lex curiata was already a magistrate, the voting on this lex being subsequent to the election and forming no part of it.[1098]
In favor of Cicero’s interpretation it may in the first place be stated that he was not simply offering a conjecture as to the original intention of the usage, but was interpreting the formula of the law as it existed in his own day. There would be no point to his interpretation unless the formula ran somewhat like that of an election; and he affirms definitely that the law bestows the magistracy upon a person who has already received the same office from other comitia—that it is, in other words, a second bestowal of the office.[1099] That this interpretation is not a mere invention of Cicero is proved by a statement of Messala[1100] that the magistracy in the strict legal sense of the term is granted by the curiate law. And the point maintained by Messala is further confirmed by that article of the agrarian rogation of P. Servilius Rullus which provides that the decemviri agris adsignandis may, if necessary, dispense with the curiate law and yet be “decemvirs in as legal a sense as are those who hold the office according to the strictest law.”[1101] In other words, the person who has been elected by the comitia centuriata or tributa is a magistratus, though not a magistratus iustus or optimo iure (optima lege); the completion of all formalities, ending with a second election (by the curiae), is essential to the latter.
Optimo iure requires explanation. It often signifies “with perfect justice,” “most deservedly.”[1102] Closely related to this meaning is that of “perfect formality,” as in making a bequest[1103] or in creating a sacerdos[1104] or a magistrate.[1105] In this sense optimo iure is interchangeable with optima lege. Developed in another direction, either phrase readily gives the idea of completeness or perfection of title, not only to property,[1106] but also to office.[1107] One who holds a perfect title to a property, or has been granted a civil status[1108] or an office[1109] in a perfectly legal way, necessarily enjoys all the immunities, honors, and powers inherent in such absolute condition. To indicate that due legality has been observed in the creation of a magistrate, and that the latter has accordingly complete possession of his office, and of all the honors and powers belonging to it, the phrase ut qui optima lege sunt, erunt is often inserted in the formula of appointment or election. These words continued to be used, for example, in the creation of the dictator as long as his power remained absolute, but after it became subject to appeal, they were dropped.[1110] The author of the act was at the same time author of the condition attaching to it expressed by the phrase under consideration: in the appointment of a dictator it was the consul; in the creation of a promagistrate or the assignment of a province it might be the senate.[1111] Laws must often have contained provisions that the magistrates created under them should be ut qui optima lege.[1112] The Servilian bill most probably included an article of the kind for the decemviri agris adsignandis to be elected under it. But as the title to an office was impaired by any informality in the elective process, and as Servilius foresaw that the lex curiata might be prevented by tribunician intercession or other cause, he inserted in his bill a further provision, referred to above,[1113] that the decemviri might be officials optima lege[1114] even without the curiate sanction. From what is here said it is clear that the condition of iustus or optima lege was not obtained for a magistrate by the passing of the curiate act alone, but rather by due attention to all formalities,[1115] which were brought to completion by that act.
The formula for the curiate law, in addition to its resemblance to that for elections, must have contained some reference to the imperium, as we may infer from the frequent designation of the law as a lex de imperio by Cicero. From this phrase modern writers infer that the curiate act conferred the imperium upon newly elected magistrates. The question whether it granted to a magistrate powers which he did not already possess will be considered below. For the present it is enough to state that in no instance do the ancients speak of “conferring” the imperium by the curiate law or of deriving the imperium from that law by any process whatsoever. But mention is made of conferring the imperium by a decree of the senate or by the suffrages of the people in the centuriate or tribal assembly[1116] and of confirming it by the curiate law.[1117]
The consuls and the praetor were elected by the centuries, and their imperium was sanctioned by the curiae. The dictator, too, was obliged to carry a curiate law.[1118] But the quaestors, the curule aediles, and other inferior magistrates, after their election by the tribes, did not themselves convoke the curiae for sanctioning their election; the lex was proposed in their behalf by a higher magistrate.[1119] As the origin of this custom we may suppose that the kings, and after them the higher magistrates of the early republic, used to ask the people for a pledge of loyalty not only to themselves but also to their assistants, and that this custom continued even after they had come to be elective magistrates. To functionaries who lacked the imperium the expression lex de imperio could not apply; lex de potestate, though not occurring in our sources, would be the appropriate phrase.
It has generally been assumed that the curiate law bestowed a power in addition to that received through election.[1120] Something can in fact be said in favor of this view. We are told that the newly elected magistrate could attend to no serious public business till he had secured the passage of the act:[1121] till then the praetor could not undertake judicial business; the consul could have nothing to do with military affairs[1122] or hold comitia for the election of his successor.[1123] Some of Cicero’s contemporaries asserted that a magistrate who failed to pass the law could not as promagistrate govern a province.[1124] Or if without a curiate law he made the attempt, he would be obliged to conduct the administration at his own expense;[1125] and if as promagistrate he gained a victory in war, he was denied a triumph.[1126] Under such conditions it might well be said that a magistrate could engage in no serious public business before he had carried for himself the sanctioning law. But practice diverged widely from these rules. An act containing a provision for the election of functionaries might include a dispensing clause to the effect that the persons elected shall, in the lack of a curiate law, “be magistrates in as legal a sense as those who are elected according to the strictest forms of law.”[1127] Yet even without this special provision the magistrate regularly attended to much business before passing the law. The first public act of the consul, praetor, or other magistrate was to take the auspices, to determine whether his magistracy was acceptable to the gods;[1128] and another auspication was held for the meeting of the curiae.[1129] It was customary, too, for the consul to make his vows to the Capitoline Jupiter and to hold a session of the senate, both of which acts had to be auspicated.[1130] These facts disprove the theory that the curiate law conferred the auspicium. In the first session of the senate here mentioned not only religious affairs but civil and military matters of great importance were discussed and finally arranged, all of which business was regularly managed without a curiate law.[1131] As to other administrative acts it is probable that the want of a lex curiata never hindered the performance of necessary business civil or military. In case of danger to the state the interrex, who wholly lacked the curiate law, or the consul before passing the law could doubtless take command of the army;[1132] and it is significant that the unlimited imperium and iudicium were granted the magistrates not by the curiae but by the senate.[1133] The law was indeed considered indispensable to the dictator in 310.[1134] It is generally assumed by the moderns that C. Flaminius, consul in 217, lacked the law;[1135] their reason is the statement of Livy[1136] that he entered upon his office not at Rome but at Ariminum. The fact, however, that in this year he carried a monetary statute before his departure for the war[1137] proves that he began his official duties at Rome, and that Livy’s tirade to the contrary is empty rhetoric. Probably because he departed without attending to the usual auspices, his political opponents were unwilling to admit that he had entered on his office. But the army obeyed his command, his name remained in the fasti as consul, and his monetary law continued in force. Livy, while complaining at length of his failure to take the auspices, says nothing of the curiate law. His silence is significant.[1138] We cannot be certain that the lex curiata was not passed in his case; but we have no right to imagine that it was not and then draw far-reaching deductions from our fancy.[1139]
A more valuable instance is that of L. Marcius, elected propraetor by the army in Spain in 212.[1140] Although he could not have had a lex curiata, the senate, while censuring the election because it transferred the auspices to the camp, did not make the want of the law a ground for declaring the magistracy illegal.[1141] A still more famous case is that of the magistrates of the year 49, who with the Pompeian party fled from Rome before carrying a lex curiata, and yet were not prevented by this circumstance from holding military commands during their year of office or from continuing in command into the following year as promagistrates.[1142] A further instance is that of Pomptinus, praetor in 63, who had no curiate law; nevertheless as propraetor in 61 he governed Narbonensis where he gained a victory over the Gauls. This fact, too, is evidence that the want of the law did not in practice debar from military commands. From 58 to 54 he waited outside the gates of Rome for a triumph. The senate would not grant it and some of the magistrates opposed his effort to obtain it. The privilege was at last given him by the comitia under pretorian presidency.[1143] Although the want of the law involved him in inconvenience, he finally accomplished his purpose without it. Appius Claudius, consul in 54, insisted that, should he fail to carry the sanctioning act, he should nevertheless, since he was in possession of a province decreed the consuls of his year in accordance with the Sempronian plebiscite, have imperium by virtue of a Cornelian statute until such time as he should re-enter the city.[1144] The law of Sulla, to which he referred, probably stated simply that the promagistrate was to retain his imperium till his return to the city, without mentioning the curiate law; and for that reason Appius believed the sanctioning act to be unnecessary. Cicero, who informs us of this matter, inclines to the interpretation of Appius. Our conclusion, accordingly, is that in practice, if not in legal theory, the lex curiata, however convenient it may have been, was not essential to the government of a province or to a military command. It remains to consider whether it was indispensable to the holding of comitia centuriata for elections. The same Appius Claudius maintained that though a curiate law was appropriate to the consul, it was not a necessity,[1145] implying that without the law he was competent to perform all the functions of that office. He and his colleague, therefore, who was equally without the law,[1146] were ready to hold comitia for the election of successors; and although party complications opposed the election, no one objected to it on the ground that the consuls were incompetent; for postponing the election they resorted to auspical obnuntiations[1147] and to prosecutions of the candidates for bribery.[1148] Their competence to hold the elective comitia is further established by the senate’s desire that they should hold them at the earliest possible moment.[1149] The ultimate failure of these consuls to elect successors was not owing to any one’s objecting to their competence.[1150]
Scholars have attached great weight to the case of the magistrates of 49, who with the Pompeian party, as has been stated,[1151] left the city before carrying a lex curiata. Though desiring, in the Pompeian camp at Thessalonica, to hold comitia for the election of successors, it was decided that the want of the law rendered the consuls incompetent for the function.[1152] But the case requires careful examination. The Pompeians had with them two hundred senators, enough in their opinion to constitute a quorum, and their augurs had consecrated a place for taking auspices; so that it was assumed that the populus Romanus and the entire city were now located in the camp.[1153] All these circumstances clearly imply an intention to assume a temporary transfer of the city of Rome to the camp and to conduct the government in that place on the basis of this constitutional fiction. But suddenly the execution of the plan was stopped by the plea that the consuls had no curiate law! The difficulty, however, was not so serious as Dio Cassius and the moderns have supposed. The assumption of the Pompeians that the city of Rome temporarily existed in the camp implied as well the existence of a pomerium, within which the consuls could legally have held a meeting of the curiae.[1154] Or in case they felt any scruple about the matter, the senate could have decreed the consuls a dispensation from the law for the purpose of holding the elections. That they allowed a mere formality to baulk them is out of the question. The whole situation is made clear by the understanding that the consuls themselves, or more probably Pompey, did not wish elections to be held or a civil government established in the camp; such a proceeding would have disturbed still further the discipline of the army and would have roused jealousies inimical to the cause. On this interpretation the want of a law, especially as it has the appearance of an afterthought, was a mere pretext.
We have seen promagistrates whose election to their respective offices had not been sanctioned by the curiae governing provinces and holding military commands; we have seen consuls who lacked the curiate sanction attending with less inconvenience to all their official duties. The same looseness characterized the application of the law to minor officials. The want of the sanction legally involved curule aediles, quaestors, and all other officials who lacked the right to convoke the curiae; and yet it is impossible that in 54, for instance, when the consuls failed to pass the law, the curule aediles and the quaestors should have remained inactive through the entire year without leaving in our sources some trace of the disturbance caused by the suspension of their administrative functions. Dio Cassius states that no judicial process could be undertaken before the enactment of the law; nevertheless Clodius as aedile in 56 prosecuted Milo before the people prior to the vote on the sanctioning act.[1155] The quaestors entered office regularly on December 5;[1156] and as the curiate law was carried for them by the consuls, they were necessarily in official duty for some time every year before their election could be sanctioned. It seems clear that ordinarily one curiate law was passed each year, under the joint presidency of the consuls and praetors, for all the officials who required it.[1157] If that is true, a postponement of the law, or a failure to pass it, affected all the magistrates of the year.
The question as to the meaning of this wide divergence between constitutional theory and actual practice can find an answer only in the history of the curiate assembly. For a time after the founding of the republic it remained politically important. From the institution of the plebeian tribunate (494) to the enactment of the so-called law of Publilius Volero (471) the curiate assembly elected tribunes of the plebs.[1158] In 390, according to Livy,[1159] it voted the restoration of a citizen from exile. Rubino[1160] maintained that this assembly continued to be a real gathering of the people to the year after the battle of Cannae, 215, when the exigencies of the war with Hannibal brought into being a statute whereby the curiate act was passed by a vote of thirty lictors as the representatives of their respective curiae; in consequence the sanction was reduced to a formality.[1161] The passage in Festus on which his theory depends is seriously mutilated; and his attempted restoration is objectionable chiefly (1) because it required no statute to keep the people from attending the comitia curiata,[1162] (2) because without a statute a resolution of the assembly was valid, if each voting division was represented by a single person,[1163] (3) because the measure, accordingly, to be a relief to existing conditions, must have freed the commander rather than the men from the necessity of going to Rome to enact the curiate law. Whatever may be the true reading,[1164] we have a right to infer from the extant fragment (1) that in the year mentioned, owing to the nearness of Hannibal, something was done to relieve officers in the field from the necessity of coming to Rome to propose the law for themselves, (2) that the regulation was permanent.[1165] It is known that the consul Q. Fabius Maximus presided at the consular elections for 214.[1166] He and M. Claudius Marcellus, who as proconsul was at the time in command of an army, were elected.[1167] Down to this time the custom had probably been for men who were reëlected to an office or who passed from a promagistracy to the corresponding magistracy, or the reverse, to reënact the lex curiata. But we may suppose that after the election of 215 Fabius, fearing that both he and Marcellus might be absent on military duty at the opening of their official year, secured the passage of a measure, most likely a senatus consultum,[1168] which exempted from the need of repeating the curiate law holders of the imperium who were making the transition above described. In consenting to the arrangement the senate was making a great sacrifice to the exigencies of the situation. For to maintain control over the commanders it had insisted that they should begin their terms with all due formality at Rome.[1169] The lex curiata had proved a material help to this end. But now the person already in command might continue from year to year at his post, relieved of the need of coming to the capital, where he would be temporarily subject to senatorial control.
This provision of 215 was therefore an important step in the development of the imperium; and at the same time it tended to destroy the little importance still attaching to the curiate law. It seems to have been after this event and partly in consequence of it[1170] that the comitia curiata, which had long been declining, became at last a mere formality, attended by none but three augurs as witnesses to the proceedings[1171] and thirty lictors,[1172] who meekly[1173] cast the votes in obedience to the command of the presiding magistrates.[1174] It is a noteworthy fact that whereas the statesman Cicero has much to say of the curiate law, Livy and Dionysius make little reference to it. Our conclusion must be that it was more important in the late republic than in the earlier time. Probably it nearly fell into disuse after 215, to be revived some time before Cicero. Its rehabilitation was the work of the optimates, for we find the senatorial party chiefly interested in maintaining it during the age of Cicero. Since the lex curiata, subject as it was to impetrative auspices and to obnuntiations, correlated closely with the Aelian and Fufian statutes, we may reasonably connect its revival closely with their origin. Cicero[1175] tells us accordingly that the comitia curiata have continued merely for the sake of the auspices. The curtailment of the power of this assembly is analogous to the curtailment of the power of the king; as the latter was reduced, in the rex sacrorum, to a shadow continued merely for a religious purpose, the curiate comitia were likewise reduced to a shadow maintained in appearance merely for keeping up an ancient custom and for the auspices connected therewith,[1176] but in reality as a part of the religious machinery operated with more or less effect for controlling refractory office-holders. During the age of Cicero the senate strove to uphold its theory of the necessity of the law, while individuals in office and even the entire group of magistrates for the year looked upon it as appropriate indeed but unessential to their functions. At its best the theory could be but partially realized in practice.
Naturally the lictors never refused to vote the lex curiata, but it was often prevented or delayed by the intercession of the plebeian tribunes.[1177] As we hear nothing of such action of the tribunes in the early republic we may well conclude that it was a late usurpation. Their veto could be offset by a special resolution of the people for dispensing the persons elected from the need of the curiate sanction.[1178] In destroying the tribunician power Sulla, perhaps consciously, strengthened the lex curiata as a weapon in the hands of the senate. He did not treat the subject, however, with his usual precision; for in 54 we find Appius Claudius appealing to a Cornelian law in justification of his intention to govern a province without the sanction.[1179] The procedure of Appius must have robbed the sanctioning act of the little vitality which it still possessed. With the downfall of the republic it fell completely into disuse.[1180]
I. COMPARATIVE VIEW: Spencer, H., Principles of Sociology, ii. chs. viii, ix; Post, A. H., Grundlagen des Rechts, 130-6; Die Anfänge des Staats- und Rechtsleben, 113 f.; Jenks, E., History of Politics, chs. ix, xi, xii; Schrader, O., Reallexikon, 923-5; Sprachv. u. Urgesch. ii³ (1907). 376; Leist, B. W., Alt-arisches Jus Gentium, see index, s. Jus; Alt-arisches Jus Civile, i. 337 ff., 368 ff. (fas, ius, lex); Hirt, H., Indogermanen, ii. 522-31 (fundamental ideas of right and law); Brunner, H., Deutsche Rechtsgeschichte, i. 128-32; Schröder, R., Lehrbuch der deutschen Rechtsgeschichte, 21-7; Cramer, J., Verfassungsgeschichte der Germanen und Kelten (Berlin, 1906); Seeck, O., Geschichte des Untergangs der antiken Welt, i. 212-4; Kovalevsky, M., Modern Customs and Ancient Laws of Russia, chs. iv, v; Ginnell, L., Brehon Laws, ch. iv; Hermann-Thumser, Griech. Staatsaltertümer, 67-9 (Homeric); 166-76 (Lacedaemonian); 504-38 (Athenian); Gilbert, G., Constitutional Antiquities of Sparta and Athens, 50-2 (Lacedaemonian); 285-310 (Athenian); Buchholz, E., Homerische Realien, ii. 24-7; Seymour, T. D., Life in the Hom. Age, 101-9; Moreau, F., Les assemblées politiques d’apres l’Iliade et l’Odyssée, in Revue des études Grecques, vi (1893). 204-50; Finsler, G., Das homerische Königtum, in N. Jahrb. für kl. Alt. ix (1906). 313-36; Fustel de Coulanges, Ancient City, 216 f., 244 ff., 329; Histoire des institutions politiques de l’ancienne France: La Gaule Romaine (1891); L’invasion germanique (1891); La monarchie Franque (1888); Farrand, L., Basis of American History, see index, s. Council; Bernhöft, F., Staat und Recht der röm. Königszeit, 145-56.
II. THE COMITIA CURIATA: Schulze, C. F., _Von den Volksversammlungen der Römer_, 282-307; Newman, _On the Comitia Curiata_, in Classical Museum, xx (1848). 101-27; Mommsen, Die patricisch-plebejischen Comitien der Republik, in Röm. Forschungen, i. 140-50; _Nichtexistenz patricischer Sonderversammlungen in republikanischen Zeit_, ibid. i. 167-76; Bürgerschaft und Senat der vorgeschichtlichen Zeit, ibid. i. 269-84; Die lex curiata de imperio, in Rhein. Mus. N. F. xiii (1858). 565-73; History of Rome, bk. 1. ch. v; Röm. Staatsrecht, i. 609-15; iii. 33-42, 316-21; Obudzinski, Die Kuriat- und Centuriatkomitien der Römer; Kappeyne van de Coppello, J., Comitien, 60-86; Hallays, A., _Comices à Rome_, ch. i; Morlot, E., Comices électoraux, ch. ii; Soltau, W., Altröm. Volksversammlungen, 37-106; Humbert, G., Comitia, in Daremberg et Saglio, Dict. i. 1374-7; Liebenam, W., Comitia: I. Curiata, in Pauly-Wissowa, Real-Encycl. iv. 682-6; Curiata Lex, ibid. iv. 1826-30; Hüllmann, K. D., Ursprünge der röm. Verfassung, 96-8; Rubino, J., _Röm. Verfassung und Geschichte_, 233 ff.; Madvig, J. N., _Verfassung und Verwaltung des röm. Staates_, i. 222-6; Lange, L., _Röm. Altertümer_, i. 396-413; Mispoulet, J. B., _Institutions politiques des Romains_, i. 194-203; Willems, P., _Droit public Romain_, 49-54; Herzog, E., Röm. Staatsverfassung, i. 106-18, 1059-65; Schiller, H., Röm. Alt. iv. 628 f.; Karlowa, O., Röm. Rechtsgeschichte, i. 48-54, 382-4; Greenidge, A. H. J., Roman Public Life, 250 f.; _Legal Procedure of Cicero’s Time_, 297-307; Abbott, F. F., Roman Political Institutions, 14 f., 18-20, 252 f.; Voigt, M., XII Tafeln, i. 97-124 (ethical laws, fas, ius, etc.); Leges regiae, in _Abhdl. d. sächs. Gesellsch. d. Wiss._ vii (1879). 555-826; Bernhöft, ibid. 145-160; Genz, H., Das patricische Rom, 51 ff.; Seeley, J. R., Livy, 62-70; Munderloh, Aus der Zeit der Quiriten, 4 f.; Clason, D. O., _Kritische Erörterungen über den röm. Staat_, 1-30; Hoffmann, E., _Patricische und plebeiische Curien_; Nissen, A., Beiträge zum röm. Staatsrecht, 39 ff.; Le Jeune, M. L., _L’imperium des magistrats de Rome sous le République_; Schwegler, A., Röm. Geschichte, i. 663-7; Ihne, W., History of Rome, i. 113 f.; Peter, C., Geschichte Roms, i. 59 f.; Dunning, W. A., _History of Political Theories Ancient and Mediaeval_, 107 ff.; Willoughby, W. W., _Political Theories of the Ancient World_, ch. xvi; Nettleship, H., Contributions to Latin Lexicography, 497-500 (ius), 515-7 (lex); Rothstein, M., Suffragium, in _Festschrift zu Otto Hirschfelds 60stem Geburtstage_, 30-3; Botsford, G. W., _Lex Curiata_, in Pol. Sci. Quart. xxiii (1908). 498-517.
X. THE ORGANIZATION OF THE COMITIA CENTURIATA
I. In the Early Republic
From the point of view of the Roman historians the centuriate assembly,[1181] planned by Servius Tullius, came into existence at the beginning of the republic; its earliest act in their opinion was the election of the first consuls[1182] and its earliest statute the Valerian law of appeal.[1183] Though they could not know precisely when it voted for the first time, they were right in understanding it to have been the basal comitia of the republic during the patrician supremacy. It may not have been instituted till some time after the downfall of the kingship,[1184] and it certainly did not reach its full complement of a hundred and ninety-three centuries till more than a hundred years after that event.
Through the early republic Rome was engaged in an almost unceasing struggle for existence. The army was constantly in the field; and the consuls from the praetorium issued their commands for the protection and the government of the city. Their measures, after discussion in the council of war, they must often have submitted to the approval of the army. The military contio was sometimes summoned for exhorting the men,[1185] for promising the reward of spoil in case of victory,[1186] for reprimanding as well as for encouraging.[1187] On one occasion the master of horse, calling a contio of soldiers, appealed to them for protection from the dictator,[1188] and they replied with a shout that they would allow no harm to befall him.[1189] Thereupon the dictator summoned another contio to witness the court-martial of the rebellious officer.[1190] On another occasion the consuls asked the soldiers to decide a question by acclamation, and they obeyed.[1191] We hear of the adjournment of a meeting on the motion of a military tribune.[1192] After a victory, honors and rewards were granted by vote of the soldiers.[1193] For acclamation, the regular form of voting,[1194] was sometimes substituted a division of the army to right and left for the sake of silence.[1195] A military assembly, meeting at Veii, decided upon the appointment of Camillus, then in exile, to the dictatorship, and despatched the resolution to Rome.[1196] In the year 357 the consul Cn. Manlius held a tribal assembly of his troops at Sutrium, and passed in it a law which imposed a tax of five per cent on the manumission of slaves.[1197] Long afterward the army in Spain elected a propraetor.[1198] It may be that much other political business was decided by the army in the troublous times which followed the overthrow of the kings. Although such acts were valid, they were always of an exceptional nature, and they ran counter to the spirit of the constitution, which granted to all the citizens, not to those merely who chanced to be on military duty, a voice in the decision of such public affairs as came before the people.
It is true that the centuriate assembly, having developed from the army, showed pronounced military features. It could not be convoked within the pomerium, for the reason that the army had to be kept outside the city;[1199] before the reform it met ordinarily in military array under its officers and with banners displayed;[1200] the usual place of gathering was the Campus Martius; and no one but a magistrate cum imperio could under his own auspices convoke it for the purpose of taking a vote.[1201] For these reasons it was frequently, even in official language, termed exercitus.[1202] The use of this word, however, should not mislead us into supposing that the assembly was an actual army. Though Dionysius[1203] represents the first meeting as armed—a mere supposition, apparently to account for its known military features—the fact is that the citizens carried weapons to none of the assemblies.[1204] Strictly, too, the centuriate gathering was termed exercitus urbanus in contrast with the real army designated as exercitus armatus or classis procincta.[1205] The facts thus far adduced amply warrant us in refusing to consider the voting assembly an army.
But some imagine the censorial assembly for the assessment and lustration of the citizens to have been an army.[1206] For this view they rely upon Dionysius,[1207] who states that the people came armed to the first lustrum, and upon an uncertain passage from the Censoriae Tabulae, quoted by Varro,[1208] which possibly speaks of the citizens in the lustral assembly as armati. If this word should be supplied in the passage, it might refer to an inspection of arms of the men of military age;[1209] but that circumstance would by no means imply that all who attended the lustrum were armed or were liable to military duty. It is certain that as the census-taking had primary reference to property for the purpose of apportioning taxes and other burdens of citizenship, those only were summoned who were legally capable of holding property in their own name. The list excluded all the men “in patris aut avi potestate,” however liable they were to military duty,[1210] as well as the women and children.[1211] All such persons were reported by the father or guardian. It included, on the other hand, many who were exempt from military service on account of age, physical condition, or want of the necessary property qualification. Hence the censorial assembly could not have been identical with the army. Furthermore the centuriate assembly was not a basis for the levy.[1212] On the contrary, the soldiers were enrolled directly from the tribes.[1213] These facts warrant the conclusion that the relation between the army and the assembly must have been one of origin only; the organization of the assembly developed from that of the army, but at no time was the political assembly an army or the army otherwise than exceptionally or irregularly a political assembly. The truth is that an army regularly officiating as a political body would require for its explanation two revolutions—one to bring it into existence and another to abolish it; but of both cataclysms history is silent.
The growth of the political from the military organization was somewhat as follows. After the Romans had determined to use the centuries regularly as voting units for the decision of questions not purely military, they proceeded forthwith to extend the organization so as to include all the citizens. For this purpose the men of military age who were free from duty for the time being, or who had served the required number of campaigns—sixteen in the infantry or ten in the cavalry[1214]—or who were exempt on account of bodily infirmity or for any other reason, had to be admitted to the junior centuries, thus materially increasing their number and making them unequal with one another. In a state, too, in which great reverence was paid to age the seniors could not be ignored. They were accordingly organized in a number of centuries (84) equal to that of the juniors—an arrangement which made one senior count as much as three juniors.[1215] The mechanics who were liable to skilled service in the army[1216] were then grouped for voting purposes in two centuries, that of the smiths and that of the carpenters,[1217] based on the two guilds in which these artisans were already organized.[1218] Authorities differ as to the classes with which they were associated. Livy[1219] adds them to the first class. Cicero,[1220] too, places a century of carpenters with that group, making no mention of the smiths, whereas Dionysius[1221] assigns both centuries of mechanics to the second class. The explanation of the difference of opinion seems to be that information as to this point was not contained in the censorial document from which the annalist (Fabius Pictor) drew his knowledge of the earlier comitia centuriata; the Romans knew only by tradition that the industrial centuries were associated in the assembly with one of the higher classes. The weight of authority inclines in favor of the first class, and the reason for the respectable place occupied by the mechanics is the high value placed on their service in early time.[1222] In like manner the trumpeters (tubicines, liticines) and the hornblowers (cornicines) were grouped each in a century for voting in the comitia,[1223] also on the basis of their guild organizations.[1224] The accensi velati, who as we are informed followed the army in civilian dress and without weapons,[1225] also received a centuriate organization. As to the number of centuries belonging to them opinion has differed. Some, formerly including Mommsen,[1226] have assumed two. Livy,[1227] however, gives but one century; Cicero[1228] seems to have only one in mind; and in imperial time there was a single collegium, or century, of accensi,[1229] probably a survival of the old political group. These considerations led Mommsen to abandon his former view, to assume instead a single century of the kind; and recent writers are inclined to follow him.[1230] Lowest in rank of the supernumerary centuries was that of the proletarians.[1231] The government so designated those citizens who owned no land,[1232] and hence were poor. They were exempt from military duty, excepting in so far as they served with arms furnished by the state.[1233] Though few in the beginning, their number gradually increased till in the time of Dionysius[1234] it exceeded all the five classes together. At some time in the early history of the comitia centuriata they were formed into a century and given one vote,[1235] which was not counted with any class but was reported after all the others. Dionysius[1236] wrongly speaks of it as a sixth class. The existence of this century is due to the principle that no one should be excluded from the right to vote on account of poverty.[1237]
Six supernumerary centuries have now been mentioned and the place of three—the two industrial and the one proletarian—in the voting system has been considered. With reference to the others Dionysius assigns the musicians to the fourth class, Livy to the fifth. The settlement of this question is aided by an examination into the total number of comitial centuries of the fifth class. It is given as thirty by the sources.[1238] Assuming this to be the correct number and adding to the sum of centuries in the five classes (170) the six supernumerary centuries and the eighteen centuries of knights to be considered below, we should have in all a hundred and ninety-four, which would be one too many. In an earlier chapter, however, the conclusion was reached that there were but fourteen military centuries in the fifth class.[1239] Two of the thirty centuries assigned to that class In the comitia centuriata must therefore have been in fact supernumerary. If one was the accensi, what was the other? Most probably it was the century of the tardy described by Festus,[1240] made up at each meeting of those who came too late to vote in their own classes. Obviously all writers who apply the discriptio centuriarum to the army view this century, as well as that of the proletarians, with suspicion.[1241] The two centuries of the accensi and the tardy should be included among, not added to, the thirty of the fifth class.[1242] Having reached this result, it might seem advisable for us to assume no further supernumerary centuries for the fifth class, but to follow the authority of Dionysius in assigning the musicians to the fourth. Or as the trumpeters preceded the hornblowers in rank, it might be plausibly argued that the former belonged to the fourth and the latter to the fifth. In this way a compromise could be effected between Livy and Dionysius, and Livy’s three supernumerary centuries of the fifth class could be explained. Absolute certainty is unattainable. The notion of Dionysius that one century of musicians voted with the seniors, the other with the juniors, and so of the mechanics,[1243] is erroneous; for the seniors did not vote separately from the juniors.
In the centuriate assembly each of the six tribal troops of knights[1244] had one vote, and was called, therefore, a suffragium. As the term centuria had not previously applied to these groups, it was for a time withheld from them in the comitia, the six divisions being known simply as the sex suffragia.[1245] Afterward as new voting groups were added to the equites they came to be called centuries, and thence the term extended to the old.[1246] The centuriate organization of the comitia did not demand the creation of suffragia seniorum, to correspond with the centuriae seniorum of the infantry, perhaps because the six votes in the comitia centuriata adequately represented the whole number of patricians. As the equites originally provided their own horses,[1247] they held their rank for life, not merely through the period of service. After the state had undertaken to furnish money for the purchase and keeping of the horses,[1248] the eques retained his public horse, and consequently his membership in an equestrian century, long after his retirement from active duty.[1249] The increase in the number of equestrian votes was owing to the participation of plebeians in the mounted service.[1250] From them twelve equestrian centuries were formed for the centuriate assembly, and added to the six groups already existing. This increase probably came about in the course of the fourth century, accompanying or following the enlargement of the infantry from two to four legions.[1251] Thus the total number of one hundred and ninety-three centuries could not have been reached till shortly before 269.
The foregoing discussion has made it evident that from the time when the comitia centuriata came into being, there were two centuriate organizations; (1) the military, which continued as before till it changed to the manipular formation,[1252] (2) the political, which developed from the military but which was at no time identical with it.
DISCRIPTIO CENTURIARUM OF THE COMITIA CENTURIATA
Old centuries of knights 6 New centuries of knights 12 =========+=====================+===========+================== CLASSES | JUNIOR CENTURIES | SENIOR | RATINGS IN ASSES | | CENTURIES | ACCORDING TO LIVY ---------+---------------------+---------—+------------------- I | 40 + 2 of artisans | 40 | 100,000 II | 10 | 10 | 75,000 III | 10 | 10 | 50,000 | | | IV | 10 + 2 of musicians | 10 | 25,000 V | 14 + 1 of accensi | | | + 1 of the tardy | 14 | 11,000 =========+=====================+===========+==================
Below the classes: 1 century of proletarians
SUMMARY
Knights 18 Seniors and juniors 168 Supernumerary 7 --- Total 193
Before the reform this assembly met in military array with banners displayed, each company under its centurion.[1253] The voting was oral. Probably it was at first by acclamation; if so the suggestion of individual voting, as we find it in historical time, must have come from the orderly military array, which offered itself conveniently for the purpose.[1254] The centurions may originally have served as rogatores, to collect and report the votes.[1255] Each century cast a single vote, which in historical time the majority of its members decided.[1256] The voting proceeded according to classes; the equites were asked first, hence their centuries were termed prerogative (praerogativae), then the eighty centuries of the first class. If the votes of these two groups were unanimous, they decided the question at issue; as ninety-seven was a majority, they had one to spare from their total number. If they disagreed, the second class was called and then the third and so on to the proletarian century. But the voting ceased as soon as a majority was reached, which was often with the first class; and it rarely happened that the proletarians were called on to decide the issue.[1257] The announcement of the prerogative votes greatly influenced the action of those which followed.[1258]
II. The Reform
The study of the centuriate assembly begun earlier in the volume[1259] and continued in the preceding part of this chapter shows it gradually developing its organization during the fifth and fourth centuries B.C. The main line of progress has been traced though details are unknown. The growth of popular rights in the latter half of the fourth century gave a great impetus to the activity of the assemblies in general, as is manifested in the Genucian, Publilian, and Hortensian legislation. In 312 when the change was made in the appraisements from land to money, many aerarii who had voted with the proletarians must have been advanced to the higher classes.[1260] This step toward the democratization of the comitia centuriata, following upon the reduction of the patrum auctoritas to a mere formality, could not help adding new energy to the institution, leading to further changes in a popular direction. The class ratings which are known to history were established no earlier than 269.[1261] Two other more important changes, which can be but approximately dated, must now be considered in detail. They are (1) the abolition of the equestrian prerogative and the introduction of the custom of drawing by lot a prerogative century from the first class on each occasion before the voting began; (2) the division of the citizens into classes and centuries within the several tribes. These two innovations are commonly grouped together under the name of the “reform.” As they have no necessary connection with one another, they need not have been simultaneous. Livy’s narrative of the happenings of 396[1262] and of 383[1263] seems to imply that they had been introduced before these dates.[1264] But the passages here referred to are uncertain; and at all events they belong to a period in which the centuries may still have been closely connected with the tribes.[1265] But should they be so interpreted as to apply to the reformed centuriate assembly, they might still be looked upon as historical anticipations for the reason that Livy’s[1266] account of the year 296 has reference to a feature of the old organization. This disposition of the three passages is supported by the following consideration. Had the reform been introduced much earlier than 269, the annalists would have assigned it to Servius Tullius, just as they assigned to him thirty tribes (reached in 318), all thirty-five tribes (reached in 241), and the census ratings in the sextantarian asses (established in or after 269);[1267] and in that case all memory of the original Servian system would have been lost. The circumstance that we are acquainted with it in some detail is proof of its survival into the third century B.C. In fact Livy’s[1268] chief reference to the reform indicates that it was completed, if not undertaken, after the number of tribes had been brought up to thirty-five (241). On the other hand it came before the opening of his third decade (218), which takes the new arrangement for granted.[1269] The contention is often made that Livy must have given an account of the reform in his second decade (292-219) now lost; and there is a universal agreement that the reform was brought about not by statute, but by arbitrary censorial disposition.[1270] The censor commonly assumed to be the author of the change is either Fabius Buteo, 241, or Flaminius, 220.[1271] Against the latter may be urged the silence of Polybius[1272] and Livy,[1273] who in speaking at length of his opposition to the nobles makes no reference to this reform. In favor of Fabius it may be said that in 241 the full number of tribes was completed; and the name of the thirty-fifth, Quirina, corresponding to Romilia, the first rural tribe, suggests that the Romans intended to create no more. In naming the last tribe the censors seem to have had in mind the completion of the new system, to each component part of which they apparently guaranteed a definite share of political power, which would have been impaired by the further creation of tribes.[1274]
A little reflection, however, will convince us of the impossibility of assigning the reform to any one censor or to a definite date. Livy could not have made much of it in the lost part of his history without leaving some trace in the epitome, which mentions far more trivial matters.[1275] The only explanation of the epitomator’s silence is that the reform was so gradual as to escape marked attention. This view is supported by a strict interpretation of Livy,[1276] who supposes the change to have come about naturally with the increase in the number of tribes, and of Dionysius,[1277] who ascribes the innovation, or a part of it, to no individual but to “certain powerful forces.” A conclusion as to the date of the reform, to be acceptable, must satisfy the conditions above mentioned. In earlier time, when there was a single classis, the centuries were made up within the tribes; but this simple system was rendered impossible by the increase in the number of classes.[1278] For convenience of administration the censors must soon after this enlargement have begun an effort to reduce the discord to harmony. One class may have been brought into agreement with the tribes more readily than another, and thus the readaptation may have extended through many lustra. The number of centuries probably did not long remain at one hundred and ninety-three. It may have received its first increase above that sum in 304, for instance, the date to which Niebuhr[1279] assigns the reform. The process may have been far advanced in 241, the date preferred by a majority of scholars, and completed by Flaminius in 220.[1280] The abolition of the equestrian prerogative may likewise have been gradual; it may have been retained in one class of comitial acts—elections or legislation, for instance—longer than in another. The conclusion that the changes were gradually introduced in the period from 304 to 220 would best explain all the known facts.[1281]
As no description of the reformed organization has come down to us, we are obliged to reconstruct it from the scant references of various writers. It is to be noted first that the five classes continued in the new system.[1282] They were still based on the census,[1283] and were called to vote in their order as before.[1284] The distinction between juniors and seniors was retained;[1285] and as these comitia were still called centuriata, the centuries necessarily continued as the voting units.[1286] But the reform brought them into direct relation with the tribes, which now served as a basis for the division into centuries and for their distribution according to age and class. On this point Livy[1287] remarks, “We ought not to wonder that the arrangement which now exists after the tribes have been increased to thirty-five, their number being doubled in the centuries of juniors and seniors, does not agree with the total number instituted by Servius Tullius; for he divided the city into four parts, ... which he called tribes.... Nor did those tribes have any relation to the distribution and number of the centuries.” From this passage we may infer (1) that in the reformed assembly the number and distribution of the centuries depended closely upon the tribes—a conclusion supported by other citations to be given hereafter, (2) that the number of centuries was changed, although we are not distinctly informed whether by diminution or increase. According to one interpretation the number of tribes was doubled by the number of centuries of juniors and seniors, and there were therefore seventy of these centuries, thirty-five juniors and as many seniors, each century forming a half tribe. This view is supported by passages in which the century bears the name of the tribe, as Aniensis iuniorum,[1288] Voturia iuniorum,[1289] Galeria iuniorum,[1290] as well as by those which in a more general way refer to voting or the announcement of the votes by or according to tribes in the centuriate assembly.[1291] It accords perfectly with other evidence that the century was an integral part of the tribe.[1292] This is the view adopted by Niebuhr.[1293] It is open, however, to the fatal objection of abolishing the classes, which in fact continued through the republic, as has already been shown.[1294] He does indeed allow for a first class comprising the country tribes and a second class made up of the others;[1295] but this hypothesis is overthrown by those citations which imply the continuance of all five classes,[1296] as well as by those which make the census an element of the later organization.[1297] Huschke,[1298] who places the reform in the earliest times of the republic, adopts Niebuhr’s view as to the number of centuries; but maintaining the continuance of the five classes,[1299] he considers them to be groups of tribes, the seventeen old rural tribes being distributed as follows: in the first class eight, in the second, third, and fourth respectively two, in the fifth three.[1300] But bearing in mind that these tribes were primarily local, we cannot at the same time regard them as census groups without ascribing to them an impossibly artificial character. For this reason the theory of Huschke should be rejected. To avoid this difficulty, while retaining the classes, the assumption has been made that the classes were subdivisions of the century, in other words that each century contained men of every class. This view is invalidated by the fact that the centuries continued to be divisions of the classes, which were still called to vote in their order.[1301]
The assumption of a diminution in number having proved untenable, the conclusion is that there was an increase.[1302] In view of the facts (1) that the reformed organization rested on a tribal basis,[1303] (2) that the centuries were divisions not only of the tribes[1304] but also of the classes,[1305] (3) that the tribes could not have been divisions of the classes,[1306] it is necessary to conclude that the classes were themselves divisions of the tribes with the centuries as subdivisions. In other words, the work of organization took place within the tribe: the members of a tribe were first divided into five classes according to their wealth; within each class the men were grouped on the basis of age into juniors and seniors,[1307] one century for each within the several classes, making ten centuries of juniors to the tribe, or in all three hundred and fifty tribal centuries, to which are to be added eighteen centuries of knights and probably five supernumerary centuries, amounting to a total of three hundred and seventy-three. This is substantially the view of Pantagathus.[1308] Convincing evidence is afforded by a group of inscriptions of the imperial period.[1309] From them we learn that under the emperors the urban tribes comprised severally (1) a corpus seniorum, (2) a corpus iuniorum, (3) the tribus Sucusana a corpus Iulianum, and the Palatine and Esquiline each a corpus Augustale. Every corpus consisted of several centuries. In the corpus Sucusana iuniorum were eight centuries divided into two groups of five and three respectively, the first group being evidently superior to the second. At the head of the century was a centurio or curator.[1310] Eliminating the corpora which were named after emperors and which must have been instituted in their time, eliminating also the inferior centuries of the corpora seniorum and iuniorum, which were undoubtedly added either by the emperors or by the late republican censors, we have remaining five centuries to the corpus as it must have stood in the period immediately following the reform. This result confirms the view suggested by Pantagathus.
It was accepted by Mommsen in his Römische Tribus (1844) and in the first seven editions of his History of Rome; but in his Römisches Staatsrecht[1311] he has offered a radical modification: while holding to the 373 centuries, he maintains that they were so combined as to cast in all 193 votes. According to this theory the first class comprised 35 × 2 = 70 centuries, each with one vote, whereas the remaining classes together, made up of 4 × 35 × 2 = 280 centuries, cast but 100 votes. How the centuries were combined Mommsen does not presume to say. He considers it possible, however, that for instance sixty of the seventy centuries of the second class were grouped by threes and ten by twos, making twenty-five voting groups in all. Had he attempted to follow out in detail the practical working of the theory, he would hardly have offered it to the public. The votes could not have been determined by a majority of component centuries, for according to the theory some groups comprised but two. Or if the group voted by individuals without regard to the component centuries, the four lower classes were practically composed not of centuries but of larger, nameless voting divisions.
His main support is the account of the centuriate organization given in Cicero’s Republic,[1312] which speaks of a hundred and ninety-three centuries, and which Mommsen[1313] believes to be a description of the reformed organization. Cicero’s[1314] assumption that the essential facts were known to the friends of the younger Scipio—the leader in the dialogue—and the discrepancy in the number of centuries of the first class between the Servian system as given by the annalists (Livy and Dionysius) and the organization which Cicero describes[1315] are the chief points in Mommsen’s favor. Against his interpretation it may be urged (1) that the passage is exceedingly uncertain;[1316] (2) that Cicero makes Servius Tullius the author of the organization which he describes; (3) that though the reform affected the details of the comitial organization, the principle—a distribution of the people according to ordines, census, aetates—remained the same from the time of Servius to the time of Cicero, so that he could assume that it was known to the hearers of Scipio; (4) that as to the discrepancy in the number of centuries in the first class, on the assumption that the text is correct, (a) Cicero, who was by no means infallible, may have made a mistake,[1317] being in this case especially liable to error because in the reformed organization the first class comprised seventy centuries, or (b) in case Cicero is right, either (m) the annalists may be in error in assigning eighty centuries to the first class, or (n) in an early stage of transition from the old to the new organization the number of centuries in the first class may have been cut down to seventy with a corresponding increase of ten in some other part of the system; (5) that Mommsen’s theory is refuted by the language of Cicero,[1318] who speaks of the voting divisions of the four lower classes not as groups of centuries but simply as centuries, the absence of a name for such a group being one of the strongest arguments against its existence. Mommsen’s interpretation of the passage is in brief too strained and unnatural to commend itself to the understanding. Apart from its lack of support in the sources, an objection to the theory is its extreme impracticability. Holding that juniors and seniors could not have been brought together in the same voting divisions, and assuming that the combinations were made by twos and threes and that the four lower classes had an equal number of votes, Klebs has worked out the simplest arrangement as follows:
===============+===========+==================================+========= CLASS | CENTURIES | | VOTES ---------------+-----------+----------------------------------+--------- I | 70 | One vote each | 70 II | 70 | 35 of seniors | | | 8 in groups of two 4 votes | | | 27 in groups of three 9 votes | | | -- | | | 13 votes | | | 35 of juniors | | | 2 in a group 1 vote | | | 33 in groups of three 11 votes | | | 12 votes | | | -- | | | Total | 25 | | | If the remaining classes are like the second, we shall have: | | | III | 70 | | 25 IV | 70 | | 25 V | 70 | | 25 Equites | 18 | One vote each | 18 Supernumeraries| 5 | One vote each | 5 | | | --- | | Total | 193[1319] ===============+===========+==================================+==========
This complex system would make the action of the centuriate assembly exceedingly slow and difficult, and would be as useless as impracticable; for if the object was to reduce the votes of the first class by ten and to make the other classes equal, that end could have been easily attained by the readjustment of numbers on the old basis, without the invention of this awkward grouping, the like of which is not known to have existed in any ancient or modern state. Such a reform, too, would bring out more clearly than ever the inequality of rights in the comitia,[1320] and therefore could not have been called democratic by Dionysius.[1321] It is contradicted also by Livy,[1322] who distinctly states that the number of centuries was changed. Lastly the objection must be made that the joining of centuries of different tribes into voting units cannot be reconciled with the imperial grouping of centuries of the same tribe into corpora,[1323] and is refuted by the many citations which assume the voting or the announcement of the votes to have proceeded according to tribes[1324] as well as according to classes.[1325]
Lange,[1326] not thinking it necessary to preserve a total of a hundred and ninety-three votes but accepting in the main the view of Pantagathus, tries to bring the centuries into relation with the tribes by assuming that the seventy half-tribes, severally comprising five centuries of juniors or seniors, were given each one vote in the “concluding announcement” (Schlussrenuntiation), this vote being determined by a majority of the five component centuries. In like manner the eighteen centuries of knights were grouped in divisions of three centuries each, so as to count six votes in the final announcement, hence the name sex suffragia. The supernumerary centuries were grouped in one or two voting divisions, so that in all seventy-seven or seventy-eight votes were cast.[1327] As to the process, he believed that after the prerogative the seventy centuries of the first class and the eighteen centuries of cavalry voted simultaneously, and while their votes were being counted the second class was voting, the votes, in his opinion, not being announced as soon as known.[1328] This view as to the announcement is contradicted by the sources,[1329] which clearly imply that the reports were made public as they came in. Against his theory may be urged also (1) the fact that no name existed for the half-tribe, which in his opinion cast one vote in the closing announcement,[1330] as well as (2) the fact that the sources give more than six votes to the equites in the late republic.[1331] Lange is right, however, in understanding that the voting did not now, as formerly, cease when a majority was reached, but continued till all the centuries had voted.[1332]
A solution of the problem as to the order of voting suggested by Klebs[1333] seems to satisfy all conditions. The centuries gave their votes by classes, each being announced as soon as it was ascertained. Then when all the centuries had voted, a count was taken by tribes in the order determined by lot;[1334] and a second announcement, made in that order, decided the election or other act of the people. Each candidate was declared elected when a majority of votes was reached in his favor.
Regarding the supernumerary centuries our information is extremely meagre. As it does not seem likely that influential corporations would be robbed of a privilege they once enjoyed, we may reasonably believe that the artisans, musicians, and accensi velati retained centuries of their own in the reformed organization. Cicero,[1335] however, speaks of a single century of artisans for his time. The two industrial colleges, which had existed from an early age,[1336] seem to have been joined in one and to have continued into the imperial period after nearly all the other guilds had been abolished.[1337] When the two were united, they were probably reduced to a single vote in the assembly. In like manner the liticines, or tubicines, and the cornicines were united in one college of musicians[1338] and were probably given one vote. The accensi velati, too, formed a college composed of wealthy freedmen, freeborn, and even knights.[1339] We may well suppose that it still possessed a vote in the centuriate assembly. Lastly may be mentioned the century of proletarians and that of the tardy,[1340] which were as necessary after the reform as before it.[1341] Although new centuries were added, possibly by the later republican censors and certainly by the emperors,[1342] the principle of the reformed organization remained unchanged.[1343]
In the reformed assembly the equestrian centuries ceased to be prerogative.[1344] A century was drawn from the first class[1345] by lot[1346] to take the lead in voting. Then came the remainder of the class, including the equestrian centuries and the single century of artisans, eighty-eight in all. In the announcement the votes of the equites were distinguished from those of the class;[1347] and the sex suffragia, no longer exclusively patrician,[1348] were reported after the other eighty-two. The inferior place assigned to the suffragia was evidently to remove them far from their earlier prerogative position so as to free the assembly from patrician influence. Next the lower classes, among which other supernumerary centuries were distributed as in the earlier republic, voted in order; and finally came the summing up by tribes in the way described above. The old military array gave place to a civilian grouping like that already established for the curiate and tribal assemblies.[1349]
I. THE EARLIER ORGANIZATION: the literature on this subject is essentially the same as for ch. iv.
II. THE REFORM: Schulze, C. F., Volksversamml. der Römer, 69 ff.; Huschke, Ph. E., Verfass. des Königs Servius Tullius, ch. xii; Peter, C., Epochen der Verfassungsgesch. der röm. Republik, 42 ff.; Savigny, F. C., Verbindung der Centurien mit den Tribus, in Vermischte Schriften, i. 1-13; for other early literature, see Lange, Röm. Alt. ii. 495 ff., notes; Neumann, C., Zeitalter der punischen Kriege, 187 ff.; Nitzsch, K. W., Gesch. der röm. Republik, i. 146 f.; Mommsen, Röm. Tribus, 66-113, 143-149; Röm. Staatsr. iii. 269 ff.; Lange, L., De magistratuum romanorum renuntiatione et de centuriatorum comitiorum forma recentiore, in Kleine Schriften, ii. 463-493; Röm. Alt. ii. 494-516; Madvig, J. N., Verfass. und Verw. des röm. Staates, i. 117-23; Herzog, E., Röm. Staatsverf. i. 320-7; Die Charakter der Tributcomitien ... und die Reform der Centuriatcomitien, in Philol. xxiv (1876). 312-29; Willems, P., Droit public Romain, 92-8; Mispoulet, J. B., Institutions politiques des Romains, i. 46-8; Greenidge, A. H. J., Roman Public Life, 252 f.; Abbott, F. F., Roman Political Institutions, 74-6; Karlowa, O., Röm. Rechtsgesch. i. 384-8; Soltau, W., Altröm. Volksversamml. 358-71; Cicero de Re Publica und die servianische Centurienordnung, in Jahrb. f. Philol. xli (1895). 410-4; Kappeyne Van de Coppello, J., Comitien, 20 ff.; Morlot, E., Comices électoraux sous la république Rom. ch. v; Goguet, R., Centuries, ch. iv; Le Tellier, M., L’organisation centuriate, ch. ii; Hallays, A., Comices à Rome, 25-31; Plüss, H. T., Entwick. der Centurienverfass.; Ullrich, J., Centuriatcomitien; Clason, O., Zur Frage über die reformierte Centurienverfass. in Heidelb. Jahrb. lxv (1872). 221-37; Ritschl, F. W., Opuscula Philologica, iii. 637-73; Genz, H., Centuriat-Comitien nach der Reform; Guiraud, P., De la Reforme des Comices centuriates au III Siècle av. J.-C. in Rev. hist. xvii (1881). 1-24; Klebs, E., Stimmenzahl und Abstimmungsordnung der ref. servianischen Verf., in Zeitschr. d. Savignystift. f. Rechtsgesch. Röm. Abt. xii (1892). 181-244; Meyer, E., Die angebliche Centurienreform Sullas, in Hermes, xxxiiii (1898). 652-4; Humbert, G., in Daremberg et Saglio, Dict. ii. 1389 f.; Kübler, in Pauly-Wissowa, Real-Encycl. iii. 1956-60.
XI. THE FUNCTIONS OF THE COMITIA CENTURIATA
I. Elective
The first act of the centuriate assembly according to Livy,[1350] who has certainly placed the beginning of its functions at the earliest possible date,[1351] was the election of the first two consuls. Thereafter these comitia not only continued to elect the consuls, but also naturally acquired the right to choose all elective higher magistrates, extraordinary as well as ordinary, who were entrusted temporarily or permanently with some or all of the consular power—including the decemviri legibus scribundis, 451, 450, the tribuni militum consulari potestate, beginning in 444, the two censors, beginning in 443 (or 435?), and the praetors, increased gradually from one in 366 to sixteen under Caesar.[1352] The activity of this assembly in elections expanded with the growth in the number of offices; and its importance was further enhanced by the opening of the patrician magistracies to plebeians. The validity of a centuriate elective act depended upon the subsequent curiate law, which soon became a mere form, and upon the patrum auctoritas. The latter, too, was deprived of all vitality by the Maenian plebiscite,[1353] which required the act to be passed before the election while the issue was uncertain.[1354] The date of this plebiscite is unknown; but it probably followed close upon the Hortensian legislation (287).[1355]
II. Legislative
In an earlier chapter[1356] it was shown that primitive Rome, like primitive Greece, regarded law as god-given—a conception which left no scope for legislation by a popular assembly. Though under the kings the people may occasionally have been called to vote on a resolution affecting their customs, the comitia curiata never acquired a law-making function.[1357] Even the declaration of war, which historical Rome looked upon as a lex, was issued by the king without the consent of the community, his only need being to secure the hearty support of the warriors.[1358] It seems probable therefore that this question came, not before the comitia, but before a military contio.[1359] From the custom of the soldiers to participate in the settlement of questions touching their interests[1360] developed the function of declaring war. The people, however, were slow in acquiring the right. It is true that several such acts are mentioned by Dionysius for the early republic—for the war against the Volscians, 489,[1361] against Veii, 482,[1362] and against the Aequians and Volscians in 462.[1363] These instances may be explained either as acclamations in contio or as exceptional votes in the comitia centuriata, or with more probability, owing to the character of our sources for those early times, as anticipations of later usage. The decisive fact in the problem is that as late as 427 a controversy arose as to whether war could be declared by order of the people only, or whether a senatus consultum was sufficient. It was settled in favor of the people by the threats of the plebeian tribunes to impede the levy.[1364] For the next hundred years mention is often made of the exercise of this function by the people;[1365] and when a declaration was once issued by them, it could be recalled only by their vote.[1366] During the period of the Samnite wars the assembly still more frequently made use of this right.[1367] In better known times we find it firmly established. The people declared war against Carthage in 264,[1368] against the Illyrians in 229,[1369] against Carthage again in 218,[1370] against Macedon in 200,[1371] against Antiochus in 191,[1372] against Macedon again in 171,[1373] against Jugurtha in 111.[1374] In the case of the two Macedonian wars here referred to, the declaration is mentioned as an act of the comitia centuriata.[1375] In 167 the praetor M. Juventus Thalna attempted to pass through the tribal assembly a lex de bello indicendo against the Rhodians, but was effectually opposed by a tribune of the plebs;[1376] so that the function continued to be exclusively centuriate. Cn. Manlius Volso in 189 made war upon the Gallograeci without an order of the people or a decree of the senate, and was on that ground accused in the senate by two of his legati.[1377] We conclude, however, that the charge was fruitless from the circumstance that the senate finally decreed him a triumph.[1378] For beginning war against the Histrians on his own responsibility the consul A. Manlius, 178, was threatened with a prosecution, which was quashed by a tribunician veto.[1379] Licinius Lucullus was not even brought to trial for the war he waged without an order of the people against the Vaccaei in 151.[1380] Hence it appears that though a magistrate could not legally begin war on his own initiative, there was no real danger of condemnation for so doing. The reason is that those in authority attached little importance to the right of the comitia in the matter. Only once is mentioned a fear lest the people may not give their consent to a war.[1381] One case of rejection is recorded, and even here the centuries at a second session obediently accepted the consul’s proposition.[1382] The control of diplomacy and of the revenues by the senate and magistrates assured these powers the practical decision of questions of war and peace to such an extent that ratification by the assembly could ordinarily be counted on as certain; and its influence decreased with the expansion of the empire. Meantime, however, the idea of popular sovereignty, which was expressing itself in other spheres of government, effectually demanded, if only in form, some concession to the assembly in this field as well; and accordingly in the formula of declaration “populus” wholly takes the place of the once all-important “senatus.”[1383] By such empty concessions the nobility rendered the people more docile. Thus to the end of the republic the centuriate assembly retained the constitutional right to decide questions of aggressive war, although in practice the magistrates nearly regained the place which they and the senate had held during the century following the overthrow of kingship.[1384]
The nature of our sources does not allow a precise judgment regarding the importance of the comitia curiata in the early republic. To the time of the Gallic invasion it may occasionally have passed resolutions affecting the status of citizens.[1385] But as legislation never became an acknowledged function of the curiae, we are in a position to assert that through the comitia centuriata the people were first introduced into this sphere of public life.[1386]
The earliest legislation of this assembly, in fact the earliest recorded legislative act of the Roman people, was the lex de provocatione attributed to Valerius Publicola, consul in the first year of the republic, 509.[1387] It was also through the centuriate assembly that the consuls Valerius and Horatius in 449 passed a law which forbade the election of a magistrate without appeal, and affixed as a penalty the outlawing of the trespasser.[1388] The third Valerian law of appeal in 300[1389] was an act of the same assembly, whereas all three Porcian laws on the same subject seem to have been tribal.[1390] The legislative function of the centuriate assembly, resting in the pre-decemviral period simply on precedent, brought into being the statute of 471 to establish a tribal assembly for the transaction of plebeian business, improperly known as the Publilian law,[1391] the lex sacrata for the division of the Aventine among the plebeians, erroneously termed Icilian, 456,[1392] the lex Aternia Tarpeia de multae dictione, 454,[1393] the lex Menenia Sextia on the same subjects in 452,[1394] the laws ratifying the Twelve Tables in 451, 449[1395]—all excepting the second having reference to the limitation of the magisterial power. Regarding the creation of offices, no mention is made of a law for the institution of the consulate itself; but the centuries passed a law for the creation of the dictatorship, 501,[1396] and of the decemviri legibus scribundis, which should be named Sestian after the consul who undoubtedly proposed it, 452.[1397] Thus far popular legislation had no basis excepting precedent, but a law of the Twelve Tables now provided that there should be resolutions and votes of the people, and whatever the people voted last should be law and valid—the first clear enunciation of the principle that the will of the people, whenever expressed, prevailed over every other authority.[1398] It was far from establishing popular sovereignty, however, for the initiative remained with the magistrates.
The activity of the comitia centuriata, thus authoritatively established, manifested itself in the passing of the Valerian-Horatian laws of 449,[1399] the lex Iulia Papiria de multarum aestimatione, 430,[1400] the law for the election of six military tribunes by the comitia tributa, 362,[1401] the law of the dictator Publilius Philo, 339,[1402] the third Valerian law concerning appeal, 300,[1403] and finally the Hortensian law, 287.[1404] All have reference to the regulation of magistracies or of assemblies. Meantime the centuriate comitia passed the law for instituting tribunes of the soldiers with consular power, 445,[1405] and censors, 443[1406] (or 435?), for increasing the number of quaestors, 421,[1407] for instituting the praetorship, 367,[1408] and the curule aedileship in the same year.[1409] All the laws thus far mentioned, excepting that for the division of the Aventine, effected important modifications of the constitution, the most of them forced upon the senate and magistrates in the struggle for equal rights in which the commons were engaged with the nobility. In like manner two provisions of the Valerian law of 342, (1) that the name of no soldier should be erased from the muster roll without his consent. (2) that no military tribune should be degraded to the rank of centurion,[1410] established under the sanction of an oath certain fundamental rights on which the soldiers and their officers respectively insisted. Another provision, the total abolition of debts,[1411] if indeed it is historical, was administrative, and is considered therefore in another connection.[1412] Of the same nature, though less sweeping, was the Hortensian provision for the relief of debtors.
As soon as there came to be plebeian senators (about 400), the patricians reserved to themselves the right to decide on the legality of legislative and elective acts of the people under patrician presidency—a right designated by the phrase patrum auctoritas, which signified originally the authorization of the senators, thereafter of the patrician senators. Till 339 the patres were at liberty to give or withhold the auctoritas; but in that year an article of the Publilian law required them to grant it to legislative acts of the centuries before the voting began and while the issue was still in doubt, reducing it in this way to a mere formality.[1413] The effect was to free centuriate legislation from the constitutional control hitherto exercised by patrician senators.[1414] Henceforth the resolutions of this assembly could be declared illegal by no less than a majority of the entire senate. The Publilian statute, accordingly, deprived the patricians of an important power, whereas the senate as a whole continued through its consulta to exercise an increasing influence over the comitia centuriata. Polybius rightly ascribes to the consuls, therefore, the function of bringing the resolutions of the senate before the assembly. It could not have been the intention of Publilius Philo to energize the comitia centuriata by this provision; for another article of the same statute, confirming the validity of the tribunician assembly of tribes, as then actually constituted exclusively of plebeians, paved the way for the Hortensian law, which by making the acts of the tribunician assembly in every respect equal to those of the centuries, deprived the latter of their great importance as a factor in constitutional progress. From the time of Hortensius to the time of Sulla no constitutional statute is known to have been enacted by the centuriate assembly; though our sources do not give us clear information on the point, it is highly probable that the consuls and dictators of this period preferred to bring their measures however important before the tribes.[1415] In Sulla’s time the lex Valeria, 82,[1416] clothing him with his extraordinary dictatorship rei publicae constituendae, must have been passed by the centuries, which alone in addition to the politically obsolete comitia curiata could be summoned by an interrex, as was the author of the law. This act, Lange remarks, cannot well be considered a revival of the legislative power of the centuries, as it was not only passed through intimidation and under a magistrate who had no constitutional right to initiate legislation, but it also created a legalized tyranny destructive of popular freedom.[1417] In the words of Cicero it was the most iniquitous of all laws and most unlike a law.[1418] Only one of Sulla’s statutes, the lex de civitate Volaterranis adimenda, 81, which, depriving the Volaterrani of their civitas cum suffragio, placed them in the condition of the Latins of Ariminum, is known to have been an act of the centuries.[1419] Probably all his other laws were ratified by the tribes.[1420] C. Julius Caesar preferably used the tribes, although it is possible that his lex de provinciis and his lex iudiciaria came before the comitia centuriata.[1421]
Sulla’s constitutional legislation curtailed the powers of the plebeian tribunes and of their assembly, proportionally increasing the importance of the centuries; and although his form of government was of short duration, the optimates thereafter naturally preferred the comitia centuriata for the ratification of senatorial resolutions.[1422] To this assembly accordingly belong the leges Vibiae of the consul C. Vibius Pansa, 43, which confirmed the acts of Caesar, and took the place of Antony’s leges de coloniis deducendis and of his lex de dictatura tollenda.[1423]
On the institution of the censorship, and by the law which called the office into being, it was enacted that elections of censors should be ratified, not by the curiae as in the case of other magistrates, but by the centuries themselves.[1424] Before this date the principle was already established that the people should vote twice in the election of every magistrate in order that if they repented of their choice, they might recall it by a second vote.[1425] As the primary function of the censors was the periodical reconstitution of the comitia centuriata, it was doubtless thought appropriate that this assembly alone should be concerned with the election. The lex centuriata de potestate censoria, evidently passed under consular presidency, remained, like the curiate law in confirmation of elections to other offices, a mere form. It was of too little practical significance ever to be noticed by the historians; in fact no individual instance of the passing of this act is mentioned by any extant writer. Characteristically the lex Aemilia, 433, which is alleged to have cut down the term of censorship to eighteen months,[1426] and the lex Publilia Philonis, 339, which provided that at least one censor must be a plebeian,[1427] were centuriate, whereas the Licinian-Sextian law, 367, which provided that one consul must be a plebeian,[1428] and the Genucian law, 342, permitting both to be,[1429] were plebiscites.
An occasional attempt was made by a magistrate to usurp for the comitia centuriata a share in the administration. The first which is worthy of notice,[1430] even though it may be mythical, is the agrarian proposal of Sp. Cassius, 486. According to the sources it was opposed by the senate and the colleague of the mover. Far from enacting it into a law, the author, on the expiration of his consulship, was himself accused of attempting to usurp the royal power, and was, in one version of the story, condemned to death by the assembly to which he had offered the bill.[1431] The senate must have taken very seriously this first attempt of a magistrate to transfer some of its administrative power to the comitia. The law for the division of the Aventine Hill among the people, 456, was actually passed, most probably by the centuries.[1432] It was forced upon the government by the plebeians, and did not serve as a precedent for the future. The Valerian law of 342,[1433] which abolished debts, was an extraordinary administrative measure similar in character, but far more sweeping, to the clause for the relief of debtors in the Licinian-Sextian plebiscite.
If then the centuriate assembly was excluded from the field of administration, it must certainly in pre-decemviral times have had no part in religious legislation. The law which regulated the intercalary month inscribed on a bronze column by Pinarius and Furius, consuls in 472,[1434] and the ancient law composed in archaic letters, mentioned in connection with the year 363,[1435] requiring the praetor maximus to drive the nail on the ides of September, must accordingly have been acts, not of the centuriate assembly, but of the pontifical college. By the ratification of the Twelve Tables, composed chiefly of private laws and of closely connected religious regulations, an example was set for the invasion of both of these legal spheres by the centuriate assembly. But the precedent remained unproductive; for at this time the tribal assembly under plebeian or patrician magistrates was recognized as competent for legislation, and naturally took to itself the function of enacting the less weighty, for a time generally the non-constitutional, laws.[1436] We are not to imagine the field of legislation clearly divided into constitutional, private, religious, and other departments; aside from the question of declaring an offensive war, which remained strictly the province of the comitia centuriata, the distinction in legislation was simply between the more and the less important; the dignified assembly of centuries, organized on an aristocratic-timocratic basis, was entrusted with the weightier business, whereas the simpler tribal assembly, which was easier to summon and more expeditious in action, served well enough for the despatch of lighter business. The question of the assembly to be employed was largely one of inertia; it required a far greater force of circumstances to set in motion for legislative purposes the cumbrous centuriate assembly than the relatively mobile gathering of the tribes.
III. Judicial
The jurisdiction of the people in whatever assembly was confined to cases of crime and of serious disobedience to magistrates.[1437] It was not exercised by them in the first instance but only by way of appeal. In the opinion of the Romans Tullus Hostilius was the first to grant an appeal,[1438] necessarily to the comitia curiata, which under the kings remained the only formally voting assembly.[1439] During the regal period, the well attested appellate function of the comitia[1440] was simply precarious, depending wholly on the pleasure of the king.[1441] The Romans represented the advance in liberty brought by the republic as consisting partly in the establishment of the right of appeal for every citizen through the lex de provocatione of Valerius,[1442] a consul of the first year of the republic—according to Cicero the first law carried through the comitia centuriata—providing that no magistrate should scourge or put to death a citizen without granting him an appeal to the people.[1443] Although the historical existence of this Valerius has been questioned, and though his law has the appearance of being an anticipation of the Valerian law of 449, or more closely of that of 300,[1444] we must admit in favor of its reality that the decemvirs were themselves exceptionally above appeal and that their laws guaranteed to the citizens an extensive use of the right.[1445] The appellant, however, had no legal means of enforcing his right against the magistrate; he could do no more than “throw himself on the mercy of the crowd, and trust that their shouts or murmurs would bend the magistrate to respect the law.”[1446] The first lex Valeria, accordingly, brought little real benefit to the citizens.[1447] The right was recognized and its application extended, as intimated above, by the Twelve Tables, in which various laws relating not only to capital crimes but to some of less importance granted an appeal to the people.[1448] It was provided also by a special statute of the code that judgments as well as laws involving life or citizenship could be passed only by the comitiatus maximus, which is evidently the comitia centuriata.[1449]
The Valerian-Horatian law of appeal, 449, was directed against the recurrence of the decemvirate or any similar magistracy with absolute jurisdiction, and hence resembled neither the laws of the Twelve Tables referring to the subject nor the Valerian law of 509. It provided that any one who brought about the election of such a magistracy might be put to death with impunity,[1450] and is alleged to have been reinforced by a Duillian plebiscite of the same year, which set the penalty of scourging and death for the same offence.[1451] These regulations could not refer to the dictatorship, which was appointive not elective, and which continued to possess absolute jurisdiction for more than a century after the decemviral legislation.[1452]
But legal rights by no means imply actual enjoyment; and the decemviral laws of appeal must have long remained substantially inoperative through lack of a power sufficiently interested in their enforcement; “the might of the few was stronger than the liberty of the commons.”[1453] The right was limited, too, by the first milestone,[1454] and hence did not affect the imperium militiae.[1455] The only punishment of a magistrate for refusal to grant an appeal even by the Valerian law of 300, was to be deemed wicked.[1456] Furthermore the oft-recurring dictatorship was unrestricted by the law, being in this respect a temporary restoration of the regal office.[1457] Not till after the enactment of the last Valerian statute did the people begin to enjoy in fact the privilege which had long been constitutionally theirs. The enforcement of the law, as in general of the rights of the citizens, was chiefly due to the plebeian tribunate, “the only sure protection even of oppressed patricians,”[1458] but itself a limitation on the jurisdiction of the assembly.[1459] At some unknown date after 325[1460] the dictator’s authority within the city was subjected to appeal; and it has accordingly been suggested that this limitation was due to the Valerian law of 300.[1461]
The practical establishment of the right of appeal ordinarily led the magistrate in the exercise of his disciplinary power to substitute light fines and imprisonment, which he had full power to enforce, for the heavier penalty of scourging.[1462] But in case of crimes, especially perduellio and parricidium, public sentiment compelled him to prosecute the accused to the full extent of the law. In the former accusation the consul of the early republic appointed duumviri perduellioni iudicandae for each case as it arose.[1463] This office is obscure because, without being formally abolished, it fell early into disuse, its function passing to the tribunate of the plebs. Of the three cases attributed by the sources to these duumviri, that of Horatius[1464] belongs to the regal period, and is a mythical prototype of the republican procedure. The offence has the appearance of parricidium. Only by the broadest interpretation could perduellio be made to cover the murder of a sister.[1465] The second case is that of M. Manlius, 384, according to the more credible account,[1466] whereas Livy[1467] himself is of the opinion that the prosecutors were the plebeian tribunes. We may conclude, then, that the duumviri were still employed at this date.[1468] The third case is an unsuccessful attempt in 63 to revive the office for the trial of C. Rabirius.[1469] The first republican law of appeal must have empowered the comitia to order the appointment of these officials by the magistrate;[1470] and it seems probable that at a later date unknown to us they began to be elected by the people.[1471] The function of the duumviri was to try the case and pronounce sentence, from which if condemnatory the accused had a right to appeal to the comitia centuriata.[1472] From the analogy offered by the questorian procedure we may infer that the duumviri requested from a higher magistrate permission to take auspices for that assembly, over which they presided in the final trial.[1473]
All capital crimes committed by a citizen against another were in a similar way referred by the consuls to the quaestores parricidii as their deputies.[1474] The activity of these officials is first mentioned by the annalists in connection with the trial of Sp. Cassius, not for murder but for perduellio.[1475] Lange’s[1476] explanation that the quaestors were appointed duumviri for the trial would satisfy all requirements; yet in myths of this kind we need not expect absolute legal consistency.[1477] According to another, perhaps even earlier, version he was tried and condemned at home by his father.[1478] The second instance is the trial of M. Volscius, 459, for false testimony,[1479] which was likewise a capital crime. Their judicial competence was recognized by the Twelve Tables;[1480] and two capital cases are assigned to their jurisdiction after the decemvirate, (1) that of Camillus on an accusation variously stated by the ancient authorities;[1481] he avoided capital prosecution before the centuries by retiring into exile, and in his absence was condemned by the tribes to a fine of 15,000 or perhaps 100,000 asses: (2) that of T. Quinctius Trogus brought by the quaestor M. Sergius,[1482] which must have taken place after 242.[1483] The reason for the fewness of the known cases is to be sought in the circumstance that their jurisdiction was substantially limited to common crimes, whereas political crimes came at first before the duumviri and afterward before the tribunes of the plebs.[1484] The criminal jurisdiction of the quaestors must have continued till the institution of standing quaestiones.[1485]
While the importance of the comitia centuriata as a criminal court was enhanced by the lex Valeria Horatia and the Duillian plebiscite of 449, which prohibited the election of a magistrate with absolute jurisdiction, the number of officials competent to bring capital actions before this assembly was increased as a result of that law of the Twelve Tables which enacted that all resolutions concerning the caput of a Roman citizen should be offered to the centuries only.[1486] Thereafter the tribunes were required to prefer their capital accusations before this assembly, for the summoning of which they, like the quaestors and the duumviri perduellioni iudicandae, requested the auspices of a higher magistrate, ordinarily after 367 of a praetor.[1487] For a time, probably till the Hortensian legislation, they were dependent upon the patrician magistrates for this privilege.[1488] According to our sources the tribunes, with the approval of the consuls,[1489] entered upon their new sphere of judicial activity by bringing a capital charge against Appius Claudius and Sp. Oppius, past decemvirs, for misconduct in office, the specific charge being the abuse of justice in the interest of a person or of a party.[1490] The suicide of the accused prevented the trial. On the eight remaining decemvirs they passed in the same assembly a sentence of exile.[1491] M. Claudius, too, condemned for false testimony, was exiled, the death penalty being mitigated also in his case.[1492] The tribunes of 439 are said to have accused L. Minucius and C. Servilius Ahala for the part they had taken in the death of Sp. Maelius, and two years afterward Servilius was sentenced to exile by the comitia centuriata, to be recalled later by the same body. The charge against the former was false testimony, against the latter the putting to death of a citizen who had not been legally sentenced.[1493] Livy next mentions a charge, probably of perduellio, brought by the tribunes against Q. Fabius, 390, for having, in violation of the ius gentium, fought against the Gauls while he was an ambassador to them. He, too, is said to have died before the trial.[1494] All these cases are uncertain. If historical, they may represent the beginnings of capital jurisdiction of the tribunes, in rivalry with the duumviri; or they may in reality, like the case of M. Manlius, 384, already mentioned, have been duumviral. On either alternative they came before the centuriate comitia.
As we approach firmer historical ground, we hear of three accusations of unnatural lust alleged to have been brought by the tribunes of the plebs before the same comitia: (1) that against L. Papirius, 326,[1495] (2) that against L. or M. Laetorius Mergus, a military tribune, quod cornicularium suum stupri causa appellasset,[1496] (3) the case mentioned by Pliny and others against a person of unknown name, which probably belongs to this period.[1497] The second case seems to be a trial of official accountability, which fell within tribunician jurisdiction according to the usage of historical time; the others are too little known to be legally formulated.
In this period falls the attempted prosecution of Appius Claudius Caecus, 310, on the ground that he had not laid down the censorship at the end of the limit of eighteen months.[1498] The accusing tribune ordered him to be seized and imprisoned, but three colleagues interceded.[1499] About the same time M. Atilius Calatinus was unsuccessfully prosecuted on a charge of having betrayed Sora,[1500] probably in connection with the defection of that town to the Samnites in 315.[1501]
In reviewing the cases said to have been brought by tribunes before the comitia centuriata it is surprising to find the period from the institution of the office to the trial of Q. Fabius, 390, swarming with such prosecutions, whereas for the century intervening between that date and the Hortensian legislation comparatively few cases are recorded and those of little significance.[1502] These circumstances tend to prove that the cases assigned to the earlier and less known period either belong mostly to the jurisdiction of the duumviri or of the quaestors rather than of the tribunes, or are in great part mythical, and that the tribunes, therefore, exercised no extensive capital jurisdiction before the enactment of the Hortensian law.[1503] We are led thence to the conclusion that either by an article of the statute of Hortensius or at least as a recognized consequence of the high place in the government assured the tribunes by it, the jurisdiction of these magistrates in political cases was freed from every restraint. At this time they succeeded wholly to the place of the duumviri. The cases of which the tribunes had cognizance were thereafter exclusively political, whereas the questorian jurisdiction was confined to murder and other common crimes. This distinction was not a limitation upon the power of the tribunes, who if they chose might have superseded the quaestors as easily as they had superseded the duumviri. It was rather a division of functions adopted by the tribunes themselves in view of their own political character and on the basis of the relative dignity of the two offices. The chief judicial function of the tribunes, accordingly, was to hold officials responsible for their administration, though occasionally they called private persons to account for their conduct as citizens. All grades of officials were within their jurisdiction, but most of the cases were against the higher magistrates.
The first tribunician case of the kind after the Hortensian legislation, and the first which is absolutely free from historical doubt, is that brought against P. Claudius Pulcher on the ground that as consul, 249, he fought the naval battle off Drepana contrary to auspices, thereby losing his fleet. After the comitia had been interrupted by a storm, the intercession of colleagues against the resumption of the trial saved him from the death penalty. As the result of a new trial before the tribes, however, he was fined 120,000 asses, 1000 for each ship lost.[1504] His colleague, L. Junius, by suicide escaped condemnation on a charge of perduellio.[1505] In 212 two tribunes of the plebs prosecuted M. Postumius Pyrgensis, a publican, before the tribes for fraud, setting the penalty at 200,000 asses; but the accused with his friends violently broke up the assembly, whereupon the tribunes, dropping the original charge, prosecuted him for perduellio,[1506] we should suppose before the centuries.[1507] Among the complaints urged against him by the consuls in the senate were that “he had wrested from the Roman people the right of suffrage, had broken up a concilium plebis, had reduced the tribunes to the rank of private persons, had marshalled an army against the Roman people, seized a position, and cut the tribunes off from the plebs, and had prevented the tribes from being called to vote.” Specifically the crime must have been perduellio.[1508] Before the day of trial he withdrew into exile. In his absence the plebs on the motion of Sp. and L. Carvilius decreed that he was legally in banishment, that his property should be confiscated, and that he should be interdicted from fire and water. In this connection it should be noticed that whereas the banishment of a citizen by lex or iudicium was the exclusive right of the centuries,[1509] the tribes were competent to decree him an exile after his voluntary retirement.[1510] Some of the coadjutors in the violence of the publican above mentioned left their bail and followed him into exile; others were imprisoned to await capital trial, with what result the historian does not inform us.[1511]
In the same year Cn. Fulvius, a praetor, met with military reverses through gross cowardice,[1512] and in the following was prosecuted in a finable action by a tribune of the plebs for having corrupted his army by the example of his unsoldierly habits. Finding in the course of the trial that the fault of the magistrate was far more serious than had been imagined, and that the people were in a temper to vote the extreme penalty, the prosecutor changed the form of accusation to perduellio on the ground that such cowardly conduct in a commander threatened the existence of the state. In this instance, too, the accused avoided trial by withdrawing into exile.[1513] In 204 by a decree of the senate a special commission, consisting of the praetor for Sicily with a council of ten senators,[1514] was appointed for the trial of a legate of Scipio, Q. Pleminius, on the charge that he had robbed the temple of Persephone in Locri and had violently oppressed the Locrians.[1515] The commission brought him and his accomplices in chains to Rome and cast them in prison to await their trial for life before the centuries.[1516] The day of trial was continually deferred, till finally Pleminius, now charged with the instigation of a plot to burn the city, was put to death in prison.[1517] The fate of his accomplices is unknown.[1518] Livy[1519] remarks that while Pleminius was languishing in jail the wrath of the populace gradually changed to sympathy, to such an extent doubtless as to convince the authorities of their inability to secure a popular verdict in favor of the death penalty. In fact since the death of M. Manlius Capitolinus, 384, no example of the execution of a death sentence pronounced by the assembly is recorded in history.[1520] But the magistrate probably often inflicted corporal punishment in violation of the third Valerian law. To put an end to this abuse, and at the same time to embody in legal form the popular feeling against the application of the death penalty to citizens, a Porcian law absolutely forbade the scourging or slaying of a citizen under the imperium domi, the article prohibiting the sentence of death being afterward reënforced by other enactments.[1521] There has been much discussion as to the authorship of this law; probably it was the work of M. Porcius Cato the Elder in his praetorship, 198.[1522] Another Porcian law, probably of P. Porcius Laeca, praetor in 195, extended the right of appeal to Roman citizens who were engaged in the affairs of peace outside the city, in Italy and the provinces, and were therefore under the military imperium.[1523] According to this law the citizen who appealed was sent to Rome for trial by the appropriate civil authorities. Still later the third Porcian law, which Lange[1524] conjecturally assigns to L. Porcius Licinus, consul in the year of the elder Cato’s censorship, 184, seems to have been passed for the benefit of Roman soldiers. We learn from Polybius,[1525] who wrote later than the date last mentioned, that the military tribunes were accustomed in court-martial to condemn common soldiers for neglect of sentinel duty and that the condemned were cudgeled and stoned, often to death, by their fellow-soldiers. He also speaks of the punishment of entire maniples by decimation. Under Scipio Aemilianus, 133, the Roman who neglected duty was flogged with vine stocks, the foreigner with cudgels.[1526] Cicero[1527] intimates that in his own time there was no appeal from the judgment of commanders; and in fact it is impossible to understand how discipline could otherwise be maintained. Evidence to the contrary is scant and uncertain. The person against whom an accusation of desertion was brought before the tribunes of the plebs in 138 seems to have claimed to be a civilian, and on that ground appealed to the tribunes. When proved guilty he was flogged and sold as a slave, probably by a judgment of the military authorities.[1528] In 122 Livius Drusus proposed to exempt Latin soldiers from flogging.[1529] While informing us that in 108 a commander had a right to scourge and put to death a Latin official, Sallust[1530] intimates that he had less authority over a Roman. In the time of the emperors, on the other hand, soldiers were subject to the death penalty as in the time of Polybius.[1531] All these circumstances may be best explained by supposing that the third Porcian law permitted the infliction of flogging and death on Roman soldiers by the judgment only of a court-martial.[1532] This difficult subject is further complicated by the statement of Cicero[1533] that the three Porcian statutes introduced nothing new excepting by way of penalty. Interpreted in the light of other information given by various authors, including Cicero himself, these statutes simply extended the right of appeal by adapting the Valerian principle to new conditions, and substituted exile in place of scourging and death. In the relation between the accused and the civil court the cry “civis Romanus sum” was thereafter a sufficient protection from bodily injury.[1534]
In the period to which the Porcian laws belong falls the accusation of perduellio brought by the tribune P. Rutilius Rufus against the censors C. Claudius and Ti. Sempronius Gracchus, while they were in office, 169. The charge against Gracchus was disregard of the tribunician auxilium, against his colleague the interruption of a concilium plebis (quod contionem ab se avocasset). The accused, foregoing the privilege of their magistracy, consented to a trial, which came before the comitia centuriata. Claudius narrowly escaped condemnation, whereupon the case against Gracchus was dropped.[1535]
The increasing number of special judiciary commissions and the institution of standing courts limited more and more the judicial activity of the centuriate assembly; but the tribunes of the plebs kept alive the feeling of popular sovereignty in this sphere by the occasional prosecution of some notorious offender.[1536] The continuance of the centuriate judicial function is proved by the Cassian plebiscite of 137, which provided for the use of the ballot in all iudicia populi excepting in perduellio,[1537] and by the lex Caelia, 108, which removed the exception.[1538]
The limitation upon popular jurisdiction by the special court is said to have begun as early as 414, when, according to Livy,[1539] a senatus consultum authorized the appointment of a quaestio extraordinaria to discover and punish the murderers of M. Postumius, a tribune of the soldiers with consular power. The plebs, consulted as to the presidency of the court, left it to the consuls. The instance may be an anticipation of later usage. The case of wholesale poisoning by Roman matrons, 331, was investigated, and a hundred and seventy matrons were condemned, by an extraordinary court, which evidently owed its existence to a senatus consultum without the coöperation of the people.[1540] The same is true of the quaestio appointed by the senate under dictatorial presidency in 314 to inquire into charges of conspiracy of the leading men in certain allied states. The dictator extended the inquiry to Rome, and after his resignation the consuls continued the work. Livy’s account of this affair assumes that the senate had full power to appoint such commissions.[1541] It did in fact possess the right without the coöperation of the people to institute quaestiones extraordinariae for the trial of allies or other aliens in crimes which menaced the security of Rome. In the period between the Hortensian legislation and the Gracchi in two recorded instances it dared on its own responsibility to appoint such courts for the trial of citizens.[1542] These were usurpations; for as the laws of appeal forbade the putting to death of a citizen unless condemned by the people, a special court with capital jurisdiction over citizens could not be constitutionally established excepting with the consent of the assembly. This right of the people was considered a legislative equivalent of their judicial power, which the vast expansion of their state made it impossible for them directly to exercise.[1543] The court which tried and condemned the insurgent garrison of Rhegium in 270 was instituted accordingly by a plebiscite authorized by a senatus consultum.[1544] Most probably the court in this case was the senate itself, just as in 210, when the plebiscite of L. Atilius gave it full power to judge and punish the Campanians for revolt.[1545] The appointment of special courts for the detection and punishment of aliens for illegal usurpation of the citizenship, which belonged originally to the senate, began in 177 to be shared by the people.[1546]
Similar in character to the special judiciary commission appointed by the senate, but far more sweeping in effect, was the senatus consultum ultimum (“videant consules, ne quid respublica detrimenti capiat”), which in crises armed the consuls with absolute power of life and death over the citizens.[1547] By these means the senate at its pleasure circumvented the laws of appeal on the plea that the accused had ceased to be citizens.[1548] Against this abuse Ti. Gracchus planned a new law of appeal, which he did not live to see enacted.[1549] His own followers were ruthlessly condemned without the privilege of appeal by an extraordinary quaestio under P. Popillius Laenas, consul in 132.[1550] Probably a similar court was appointed after the revolt of Fregellae.[1551] To put an end to such circumvention of a well-established right of the people, C. Gracchus in his first tribunate, 123, carrying into effect the plan of his brother, passed the often mentioned lex Sempronia de provocatione, which absolutely forbade capital sentence upon a citizen without an order of the people.[1552] The wording indicates that it was intended not to do away with extraordinary courts and powers, but to allow their establishment in no other way than by popular vote.[1553] It reiterated, too, the article of the Porcian statute which absolutely forbade the infliction of the death penalty on civilians.[1554] Far, however, from transferring the jurisdiction of the assembly to the quaestiones, the Sempronian law evidently confirmed the right of the people by enacting that the tribunes might bring the violator of that law before the comitia on a charge of perduellio, for which it mentioned the penalty of interdict from fire and water.[1555] It held responsible not only the magistrate charged with the extraordinary commission, but probably also the senator who moved or supported the measure which called it into being.[1556] The entire Sempronian law was made retroactive, so as to cover the case of Popillius, who thereupon fled into exile to avoid trial. The interdict was accordingly decreed by the tribes on the motion of Gaius.[1557] Rupilius, the colleague of Popillius, seems to have suffered a similar punishment.[1558]
In 120 the tribune Decius prosecuted for perduellio L. Opimius, who, as consul in 121, armed with the senatus consultum ultimum, had caused the death of C. Gracchus. The accused was acquitted.[1559] Ihne[1560] considers this prosecution to have been instigated by the optimates in order to settle once for all and in their favor the question as to the legality of special courts which were called into being by an act of the senate alone. In that case acquittal was a foregone conclusion. In 119 the popular party met with greater success in the prosecution of C. Papirius Carbo, whom it hated as a renegade.[1561] The charge was probably perduellio, though the details are unknown.[1562]
The jurisdiction of the comitia in criminal cases suffered more extensive curtailment from the standing courts,—quaestiones perpetuae,—the first of which was established in 149 for the trial of Roman officials accused of extortion—repetundae—committed in the provinces or in Italy.[1563] As the object of the prosecutors was in the main the recovery of extorted property, the court was essentially civil, and seemed, therefore, to the Romans no infringement of popular rights; yet even before Sulla the principle began to apply to distinctly criminal cases.[1564] Notwithstanding this development several accusations were brought before the centuriate assembly in the period between the Gracchi and Sulla.[1565] The latter increased the number of quaestiones to seven and brought all crimes within their cognizance. The questorian jurisdiction in cases of murder had already passed to the quaestio inter sicarios, established between 149 and 141;[1566] and now Sulla transferred cases of perduellio from the jurisdiction of the tribunes to the quaestio maiestatis.[1567] Although restored to the tribunes in 70, it was for the remainder of the republican period exercised by them on special occasions only, for the quaestio maiestatis still existed. With the establishment of the principate the jurisdiction of the people finally vanished.[1568]
The revolutionary character of the period after Sulla is illustrated by the case of perduellio against C. Rabirius[1569] brought in 63 by a tribune of the plebs, T. Atius Labienus. Rabirius was charged with complicity in the murder of L. Appuleius Saturninus, the famous tribune of the year 100. Labienus proposed and carried a plebiscite requiring the praetor to appoint duumviri for the trial, whereas it was generally held at the time that these officials should have been elected by the people. It was also enacted, in violation of the Porcian and Sempronian laws, that in case of conviction the accused should be crucified on the Campus Martius. C. and L. Caesar, appointed duumviri, brought the case before the comitia centuriata, which were prevented from giving their verdict by the removal of the flag from Janiculum.[1570] The object of the trial was not to punish the guilty, but to discredit the senate, to which the accused belonged.[1571] The decline of the idea of popular sovereignty is further indicated by the agrarian rogation of the tribune P. Servilius Rullus, 63, an article of which, in violation of the lex Valeria Horatia de provocatione, ordered the appointment of decemviri agris adsignandis without appeal.[1572]
The procedure was the same in all finable and capital actions. In a case subject to appeal the magistrate, after a preliminary inquiry (quaestio), summoned the people to contio on the third day[1573] for a thorough examination (anquisitio).[1574] The trumpeter blew his horn before the door of the accused, and cited him to appear at daybreak in the place of assembly.[1575] Acting as accuser, the magistrate addressed the contio and produced his witnesses. Then came the witnesses for the defence, the statement of the accused, and the pleading of his counsel. These proceedings filled three contiones separated from one another by a day’s interval. At the end of the third day’s session the magistrate acquitted the accused or condemned him and fixed the penalty. In case of condemnation, the accused if dissatisfied appealed. The magistrate then put his sentence in the form of a rogation and set a date for the comitia,[1576] which could be held only after an interval of a trinum nundinum,[1577] unless the accused desired an earlier trial.[1578] Some scholars, however, hold the theory that a magistrate, recognizing the limitation of his competence, might bring the case directly to the comitia without the formality of a condemnation and appeal.[1579] The penalty proposed in the rogation was not necessarily the same as at first announced; for the trial might bring to light facts to mitigate or to aggravate the sentence. The presentation of the case to the comitia by the magistrate was termed the fourth accusation.[1580] If anything prevented the voting in the comitia, the accused was discharged,[1581] and could not be legally brought to trial again for the same offence excepting under a different form of action.[1582]
Schulze, C. F., Volksversammlungen der Römer, 307-40; Hüllmann, K. D., Staatsrecht des Altertums, 334-54; Huschke, Ph. E., Verfassung des Königs Servius Tullius, chs. vii, xi; Wöniger, A. T., Sacralsystem und das Provocationsverfahren der Römer; Peter, C., Epochen der Verfassungsgeschichte der röm. Republik, mit besonderer Berücksichtigung der Centuriatcomitien und der mit diesen vorgegangenen Veränderungen; Studien zur röm. Geschichte, 54 ff.; Schwegler, A., Röm. Geschichte, see index, s. Centuriatcomitien; Ihne, W., History of Rome, iv. 10 ff.; Mommsen, Röm. Staatsrecht, iii. 300 ff.; Röm. Strafrecht, 151-74, 473-8, 632-5; Mommsen and others, Zum ältesten Strafrecht der Kulturvölker, especially 31-51 by H. F. Hitzig; Lange, L., Röm. Altertümer, ii. 516-33, 541-65, 597-613, see also indices of vols. i-iii, s. v.; Madvig, J. N., Verfassung und Verwaltung des röm. Staates, i. 226-34; Herzog, E., Geschichte und System der röm. Staatsverfassung, i. 1068-1119, see also index, s. v.; Willems, P., Droit public Romain, 159 f., 172, 176 ff.; Mispoulet, J. B., Institutions politiques des Romaines, i. 203-7; Études d’institutions Romaines, 63-6; Liebenam, W., Comitia II, in Pauly-Wissowa, Real-Encycl. iv. 686-700; Humbert, G. (s. Comitia), in Daremberg et Saglio, Dict. i. 1378 f.; Voigt, M., XII Tafeln, i. 673-82; ii. 781-845; Karlowa, O., Röm. Rechtsgeschichte, i. 409; Girard, P. F., Histoire de l’organisation judiciaire des Romains, i. 104-59; Usener, H., Italische Volksjustiz, in Rhein. Mus. lvi (1901). 1 ff.; Müller, A., Strafjustiz im röm. Heere, in N. Jahrb. f. kl. Altertum, xvii (1906). 550-77; Vassis, Sp., Leges valeriae de provocatione, in Athena, xvii (1905). 160-5; Küspert, O., Ueber die Bedeutung und Gebrauch des Wortes ‘Caput’ im älteren Latein; Dupond, A., De la constitution et des magistratures Romaines sous la république, 67-74; Moye, M., Élections politiques sous la république Romaine; Hallays, A., Comices à Rome, ch. ii; Morlot, E., Comices électoraux, ch. vi; Kappeyne van de Coppello, J., Comitien, 105-7; Borgeaud, C., Histoire du plébiscite, 45-57; Pantaleoni, D., Della auctoritas patrum nell’ antica Roma; Greenidge, A. H. J., Legal Procedure of Cicero’s Time, see index, s. Centuriata Comitia, Lex, Provocatio, etc.; Roman Public Life, 75, 252 f., 255; Abbott, F. F., Roman Political Institutions, 253-9; Wirz, H., Perduellionsprocess des C. Rabirius, in Jahrb. f. Philol. xxv (1879). 177-201; Mirabelli, G., Di un processo politico avvenuto negli ultimi tempi della republica Romana; Schulthess, O., Der Process des C. Rabirius vom Jahre 63 v. Chr.; Baron, in Berl. Philol. Woch. 1893. 658-60.
Chapter XII
THE COMITIA TRIBUTA AND THE RISE OF POPULAR SOVEREIGNTY TO THE YEAR 449
In the belief of the Romans the tribunes of the plebs, originally two, were instituted in 494 as a concession to the seceding commons to win them back to the state.[1583] The historical truth of the first secession need not be discussed here; but there is no good ground for rejecting the view of the ancients either that the tribunate of the plebs owed its existence to a revolution or that it began at as early a date. According to our sources the plebeian tribunes, hence we may infer also the aediles, were for a time elected, and other business affecting the interests of the common people was transacted, in comitia curiata composed potentially of all the citizens.[1584] The change in the form of organization in 471, from curiate to tribal, will be considered below. The president of the comitia which elected the first plebeian tribunes was necessarily a patrician magistrate,[1585] probably the pontifex maximus;[1586] thereafter, with the exception of the comitia for the election of the first plebeian officials after the overthrow of the decemvirs, tribunes of the plebs presided not only for elections but also for judicial business and for the enactment of plebiscites (plebi scita).
The object of the office of tribune was the protection of individual citizens, plebeian and patrician alike,[1587] from oppression; and the means was the auxilium (official aid),[1588] which could be rendered in no other way than by personal contact; hence the law prohibiting a tribune from being absent over night from the city[1589] and requiring him to leave the door of his house open during the night.[1590] In the further interest of the citizens the tribunes had the unrestricted right to call the plebs to a contio and address them at any time and on any subject, to form them when so assembled into voting groups, at first curiae and after 471, tribes, and to take their votes on proposals affecting plebeian interests, plebiscites being from the beginning binding on the plebeian body in so far as they harmonized with the laws of the state.[1591]
These were the two original functions from which the vast powers of the later tribunes gradually developed. As strictly plebeian officials they had no authority to summon patricians, to exclude them from the place of assembly,[1592] or to condemn them judicially.[1593] It follows that their alleged prosecutions of past consuls for maladministration[1594] are fictions[1595]—an anticipation of their jurisdiction at a later age. Directly they possessed no power of judgment or of coercion;[1596] but for the enforcement of the auxilium and of the ius agendi cum plebe their persons were made sacred—sacro sancti—by an oath which the plebs swore at the time they instituted the office,[1597] namely that any one who killed a tribune or aedile of the plebs or did him bodily harm, or who commanded another to inflict harm or death upon him might as a person devoted to Jupiter be killed with impunity, and his property be confiscated.[1598] The avenger was necessarily either a private plebeian or an official of the plebs.[1599] The formal act which rendered the tribunes sacred was termed a lex sacrata. The essence of such a law is (1) that it was sworn to by the community—in this instance by the community of plebs, (2) that the offender against it became a homo sacer and could be put to death with impunity.[1600] This idea of sanctity the plebeians may have derived partly from the Greek asylum;[1601] but it seems also to have been influenced by the condition of ambassadors, hence the later, ill-founded conception of the plebs as a state, and of the plebeian officials and other institutions as based on a treaty ratified with fetial ceremonies between the patrician government and the seceding plebs.[1602] Though termed lex sacrata because it was passed and sworn to in the community, as it were, of the plebs, like any plebiscite of this period the resolution had no legal validity for the state or for the patricians. Under compulsion, however, the government yielded to the demands of the plebeians without formally acknowledging the sanctity of their officials; so that the patricians, by asserting that Roman law did not recognize an inviolability founded purely on religion,[1603] could afterward deny that the tribunes were really sacrosanct. Till the enactment of the Valerian-Horatian laws of 449,[1604] accordingly, the inviolability of the tribunes existed in so far only as the plebeians were in a position to maintain it by holding over their opponents and over the government the threat of violence and revolution. That under the circumstances domestic peace was on the whole preserved should be credited to the orderly character of the great mass of citizens.
Applied to the holding of contiones and comitia, this inviolability protected the presiding tribune from interruption, contradiction, and every disturbance. The principle was afterward extended to verbal abuse anywhere publicly indulged in.[1605] Even if a man showed disrespect by not stepping out of the way of a tribune who was passing along the street, he was liable to the death penalty.[1606] Under normal conditions, however, the rigorous execution of this lex sacrata could not be thought of; in place of outlawing the offender against his person the tribune was ordinarily willing to impose a fine upon him, from which an appeal might be made to the plebeian assembly; or in cases of violence to his person, he might resort to capital prosecution, which was likewise appealable. These principles were formulated in an alleged Icilian plebiscite of the year 492.[1607] From what has just been said it is clear that the tribune’s coercive[1608] and judicial functions resulted, not from usurpation as has often been asserted,[1609] but from a mitigation of the harsh lex sacrata. In a word, the ultimate basis of tribunician authority was the revolutionary power of the plebs, upon which rested the sanctity of the tribunes, and thereon their jurisdiction. Of the judicial activity attributed by the annalists to the plebeian officials in the period before the decemvirs we do not know how much is mythical; but it is safe to say that all the capital cases, probably all the cases without qualification, which they actually settled as judges were submitted to by the patrician government for the sake of peace, without being accepted as legal.
To the third year of the tribunate, 491, is assigned the first mentioned exercise of tribunician jurisdiction. C. Marcius Coriolanus, the accused, had advocated in the senate the abolition of the tribunician office,[1610] and had done personal violence to the aediles, in this way rendering himself liable to the penalty of the lex sacrata on which rested the sanctity of the plebeian officials. Instead of declaring him a homo sacer, a tribune brought him to trial before the tribes, which condemned him by a narrow majority.[1611] The story is now regarded by all scholars as a myth. The vote by tribes at this early time is either exceptional or more likely an anticipation of later usage.[1612]
In accordance with the Icilian plebiscite a capital charge is said to have been brought by a tribune of the plebs against Kaeso Quinctius on the ground that he had repeatedly driven the tribunes from the Forum and had dispersed their assembly.[1613] After providing sureties the accused went into exile,[1614] and the sentence of banishment was passed—in Cicero’s opinion by the comitia centuriata, in Livy’s by the tribal comitia of plebs, 461.[1615] Another case prior to the decemvirate is recorded for the year 455. Representatives of three illustrious patrician families were charged with having disturbed an assembly under tribunician presidency. Their estates were forfeited to Ceres.[1616] Naturally under this arrangement between the plebs and the government there was room for much misunderstanding: the leaders of the plebs stretched their claims to the uttermost; and the patricians, after granting the radical concession, endeavored to recall as much of it as possible. They plausibly urged that while the sacrosanctitas, so far as it existed,[1617] might protect the person of the tribune, it gave him no authority over a patrician;[1618] and their position as the sole holders of political power and the sole repositories of law and usage enabled them before the decemviral legislation by stubborn, skilful perseverance in the details of political warfare almost to throw the tribunician sanctity into oblivion.[1619] Livy tells us that in the assembly appointed for the trial of the past consuls L. Furius and C. Manlius, the accusing tribune failed to appear, and was found murdered in his home; and the historian gives us to understand that the crime was the result of a private conference among the patricians.[1620] Dio Cassius[1621] states that they secretly slew a number of the boldest spirits among the plebeians. Though these stories are mythical, they reflect at least the opinion of the historians that in this early period the sanctity of the tribune counted for little. If it failed to protect his person, it could have given him no great degree of recognized judicial competence. Under these circumstances we should not expect to find the tribunes often bringing the power of their questioned sanctity into actual use in the early years of their existence; but that before the decemvirate they exercised jurisdiction to some extent even in capital cases, which were appealed to the assembly under their presidency, is proved by a law of the Twelve Tables, which, to remedy what the legislators must have considered an abuse, provided that accusations affecting the caput of a citizen should be brought only before the comitiatus maximus—evidently the comitia centuriata.[1622]
If the tribunes presumed to condemn men to death, they certainly would not hesitate to fine them for lighter offences. For checking the power of the magistrates to levy unlimited fines the consuls of 454, A. Aternius and Sp. Tarpeius, passed through the comitia centuriata a law which set the maximum fine to be levied by a magistrate on an individual in any one day at thirty cattle and two sheep, the minimum being a single sheep. In case he exceeded the former amount, an appeal could be made to the assembly.[1623] In the opinion of Dionysius[1624] this law was interpreted to apply to all magistrates, including those of the plebs, and was made accordingly the basis of the tribunician jurisdiction in finable offences. These consequences seem to have been drawn from the statute, although the proposers may not have so intended it.[1625]
Sufficient evidence has now been offered that before the decemviral legislation the plebeian tribunes exercised, on the basis of their sanctity, a vague jurisdiction in both finable and capital cases, occasionally submitted to by the patrician government though probably not recognized by it as just or constitutional. For the same period their method of agitation by the obstruction of the levy,[1626] by haranguing the people in contiones,[1627] and occasionally by sedition, proves clearly the lack of legislative power through the assembly over which they presided, as well as their lack of veto on the acts of the government. With reference to legislation the course of the discussion in the present and following chapters will make it evident that only by a provision of the Hortensian statute did plebiscites become unconditionally binding on the whole people. Although from the beginning a tribune, as a member of a collegial office, could intercede against the act of a colleague, he had in this period no legal right of the kind against the government; for had he now possessed it, as he did at a later age, he would have felt no need of obstructing the levy—a relatively slow, clumsy method of political warfare. It is to be noticed further that the power of veto of the tribunes, after it had been acquired, rested upon their jurisdiction. If a magistrate persisted in ignoring their prohibition, his act remained valid but he rendered himself liable to tribunician prosecution.[1628] Necessarily, then, as long as the tribunes lacked judicial competence (till the Valerian-Horatian legislation, 449) they lacked the veto against governmental action; as long as their judicial competence depended upon the will of the government (probably till the Hortensian legislation, 287), their veto on the government must have been correspondingly limited. Finally it was not till tribunician obstruction of the levy, sedition, and secession disappear (that is, with the enactment of the Hortensian statute) that we have a right to assume the existence of an unrestricted tribunician veto.[1629] The method of the tribunes in the pre-decemviral period was, by the means above indicated, to force a proposed measure upon the patrician magistrates, and to compel them to bring it before the centuriate assembly in regular form.[1630]
In view of the circumstances that passed bills alone were recorded and hence could be known to posterity, we may reject as unauthentic all the alleged proposals of agrarian laws of this period,[1631] which however may not have been free from agitation of the kind.
A law of the year 471 gave the tribunician assembly a tribal organization. This measure, brought about by the agitation of Publilius Volero, tribune of the plebs of that year,[1632] must, for the reason above mentioned, have been an act of the comitia centuriata.[1633] The motive given by Livy was the desire of the tribunes to free themselves from the influence which the patricians through the votes of their clients exercised on the assembly.[1634] The curiae contained all the citizens,[1635] the tribes none but the landowners. The tribal organization, therefore, excluded not all the clients but those only, together with any other citizens, who were landless.[1636] Probably in other ways the patricians had greater control of the curiate than of the tribal assemblies, although it is impossible to believe with Dionysius[1637] that the essence of the change from the curiate to the tribal comitia consisted in the elimination of auspical influence. That the law forbade the patricians to take part in tribunician assemblies, as Zonaras[1638] imagines, is not probable, for it gave the tribune no new authority over the patricians; he had power neither to summon them to his assembly nor to expel them from it.[1639] In fact we have evidence of the presence of patricians in tribunician assemblies after this date.[1640] The so-called law of Publilius Volero, now under discussion, was confused by the sources with the Publilian law of 339, some of the provisions of the later act being uncritically assigned to the earlier.[1641]
The statute of 471 imparted to the tribunician assembly no new function. Although in mentioning the bill Dionysius[1642] includes a proposal to grant the assembly legislative power, when he comes to speak of the statute as actually passed, he refers only to its provisions for the election of plebeian tribunes and aediles by the tribes, herein agreeing with Livy and other authorities.[1643]
In the same year four tribunes of the plebs were elected for the first time.[1644] The increase was probably effected by an article of the statute under discussion.
Till after the decemviral legislation the comitia tributa,[1645] brought into existence by the statute of 471, was restricted, as had been the tribunician comitia curiata, to the transaction of purely plebeian business. In the records of this period we find a continuance of apocryphal agrarian bills[1646] and condemnations of retired magistrates.[1647] In reality the only political weapon of the tribunes, aside from general agitation, continued to be the obstruction of the levy,[1648] as is proved by their increase in number to ten.[1649] The only agrarian law of the period, the so-called lex Icilia for the division of the Aventine among the people, was passed by the comitia centuriata.[1650] The very circumstance that this mild concession to the plebs was couched in a lex sacrata[1651] shows how little faith the commons had in the government.[1652]
During this period the supreme power was the senate. Shortly after the fall of the kings it provided for the purchase of corn among neighboring states in a time of scarcity, made a state monopoly of salt in the interest of the poor, freed the plebs from port dues and tributum, thereby placing the whole burden of these taxes on the wealthy.[1653] These acts imply legislative as well as administrative competence. Foreign affairs,[1654] including the decision of war and peace, were in its hands. It resolved not to restore the property of the Tarquins,[1655] decreed triumphs to victorious generals,[1656] the celebration of games,[1657] the expulsion of the Volscians from the city in the time of a festival,[1658] controlled the magistrates, including the plebeian tribunate, by means of the dictatorship,[1659] or clothed the consuls with absolute authority.[1660] Little room was left for the activity of the assemblies.
Notwithstanding these unfavorable conditions the tribunes of the plebs through obstruction of the levy and through their harangues in contiones[1661] were chiefly instrumental in bringing about the institution of the decemviri legibus scribundis. Actual votes in tribunician comitia on proposals looking to that end[1662] could have had no more than moral weight. Under popular pressure the consul Sestius, 452, referred the question to the senate,[1663] and the bill for their institution was passed by comitia, doubtless of the centuries. The only valid activity, therefore, of the tribal assembly prior to the decemviral legislation, so far as is known, was the enactment of plebiscites, which lacked the force of law, the election of plebeian officials,[1664] and the quasi-judicial decision of cases appealed to it by those who were accused of violating the tribunician sanctity.[1665]
An epoch was made in the history of the tribunate and of the tribal assembly by the consulship of Valerius and Horatius, 449, who proposed and carried a centuriate law[1666] which gave these institutions a legal basis. The article which logically first claims our attention provided that any one who injured the tribunes of the plebs, the aediles, or the decemviral judges should be devoted to Jupiter, and his property should be forfeit to the temple of Ceres, Liber, and Libera.[1667] According to Livy,[1668] who here represents the tribunician point of view, the original lex sacrata, passed on the Sacred Mount, was first renewed with appropriate ceremonies, thus reëstablishing the religious inviolability of the plebeian officials, whom then the article of the Valerian-Horatian statute here mentioned rendered legally inviolable. The constitutional relation of these two ideas was difficult even for the Romans to determine. Certain jurists, controverting the tribunician interpretation, asserted that this law made no person sacrosanct, but merely threatened with capital punishment any one who injured the officials concerned, clothing them thus in the same kind of inviolability as that which protected the ordinary magistrates.[1669] The object, according to this view, was not only to eliminate from the government the anomaly of a power sanctioned by religion only,[1670] but also to convert the plebeian officials into state officials. The leaders of the plebs gladly accepted the new position tendered them, without being willing however to withdraw from the old. Henceforth we have to deal, accordingly, with a group of legally recognized public functionaries who effectively claimed a religious inviolability hard to reconcile with the constitution, in which they were in time to make for themselves a disproportionate place.
The second article of the Valerian-Horatian statute was to the effect that “whatever the plebs ordered in their tribal assembly should be valid for the people”;[1671] so that henceforth plebiscites, when passed under the conditions hereafter specified, were the equivalent of leges, as they were often so called. It is so similar to a provision of the later Publilian and of the still later Hortensian statute that we should incline to reject it as an anticipation of the one or the other, were it not for the fact that under it important plebi scita, as the Canuleian, the Licinian-Sextian, and the Genucian, were passed.[1672] We must accept it, then, as historical, and adapt our interpretation to the few known facts in the case.
Notwithstanding the use of the word plebs to designate the tribal gathering under tribunician presidency, there is no valid reason for supposing that the Valerian-Horatian law altered its composition—that the patricians were now excluded.[1673] Dionysius[1674] is clearly of the opinion that they participated in this form of comitia both before and after the enactment of the statute under consideration; and Livy[1675] thinks of them as still present in the tribunician meetings as late as the struggle for the Licinian-Sextian laws. The problem must be considered in connection with the development of the voting function of the assembly. Primitively the leaders (nobles) in council decided upon a measure, which they then submitted to the people to be accepted with clamor and din.[1676] Although the acclamation was essentially an act of the masses, nothing forbade the nobles to join in the shouting. Doubtless in the tribal assemblies the expression of opinion within the tribe continued for a time to be by acclamation.[1677] As long as this primitive condition existed, a distinction could not be drawn between the right to be present and the right to join in the decision of questions brought before the comitia. Undoubtedly the custom of voting by heads within the tribe was an imitation of a usage adopted by the comitia centuriata some time after the institution of the latter;[1678] hence we could not reasonably assume its use by the tribes so early as the pre-decemviral period. The question therefore as to whether the patricians, who were certainly present in meetings of the tribes, enjoyed the right of voting in them could not have arisen till after the decemviral legislation. The plebeians had found it impossible by their own powers to exclude from their assembly the landless clients, who were inferior to themselves.[1679] Much less could they exclude the nobles. If the presiding tribune could not prevent their remaining after the people had been formed into voting groups, he could not prevent their voting. As the patricians, equally with the plebeians, belonged to the tribes, the former, being men of superior privilege, could not lawfully be debarred from meetings of their associations; and if they chose to attend, it was not for the tribunes of the plebs to decide as to the law in the matter. The word plebs in the statute is susceptible of an easy explanation. As the comitia curiata and comitia centuriata, under patrician presidents, had from the beginning been termed populus, nothing could be more natural than that from the time an assembly convened under plebeian presidency for plebeian objects, the latter should by way of distinction be termed plebs, even though the few patricians were included. Ordinarily the plebeians must have welcomed patricians to their assemblies, as the presence of magistrates and senators and their sons added dignity and weight to the proceedings. But when the patricians used all their superior influence in both lawful and unlawful ways to block a popular measure, the tribunes, naturally wishing then to exclude them, attempted to establish the principle that tribunician assemblies were exclusively plebeian. This question was settled by the law of Publilius Philo, 339.[1680]
This article of the Valerian-Horatian statute was a concession extorted from the patrician government by the strongest pressure, perhaps by a plebeian secession. The actual advantage which it brought to the plebs was minimized, however, by the provision that the previous consent of the senate was essential to the validity of bills brought before the tribunician assembly.[1681] The patricians could urge in support of this arrangement that as their magistrates according to long established custom always obtained the previous consent of the senate (senatus consultum) to measures brought before any assembly, and were absolutely required to obtain senatorial sanction (patrum auctoritas) for curiate and centuriate laws and elections,[1682] the tribunes, who were free from the trammels of the sanction, should be legally compelled to consult the senate before bringing a measure into their assemblies, especially as their legislation was in a field hitherto monopolized by the patrician magistrates and the senate. Although the tribunes of the plebs would have preferred to understand by the term plebiscite all that it had meant before—the unconditioned resolution of the tribal assembly under their presidency—they must have felt satisfied for the time being with the great gain they had made, however strenuous they afterward became to relieve themselves of senatorial control. This condition on the validity of the plebiscite is not expressly mentioned by Livy in connection with the Valerian-Horatian legislation, but is assumed by the sources for the following period.[1683] The same thing is clearly implied, too, in the long series of political struggles which came after the enactment of the Valerian-Horatian statute.[1684] Had the tribunes been free to legislate without interference on the part of the senate, they would have been in a position easily to complete the social and political equalization of the orders, and by one sweeping reform law to place themselves and their constituents in the condition reached by an almost uninterrupted conflict of a hundred and sixty years (449-287).[1685]
It was in accordance with this regulation that another article of the Valerian-Horatian statute directed the aediles of the plebs to preserve the senatus consulta in the temple of Ceres.[1686] We cannot look upon these officials as keepers of the senatorial archives of that time,[1687] and hence must conclude that the documents in their charge were those decrees which authorized the presentation of tribunician bills, for with those alone the plebeians were directly concerned.
The patricians expected to find a further safeguard in the tribunician veto, which could be directed against a colleague.[1688] From the fact, however, that the tribunes continued to resort to the clumsy method of obstructing the levy, and afterward also of impeding the collection of the tributum,[1689] we must infer that as yet their intercession did not prevail against a patrician magistrate.[1690] Various popular seditions, too, are mentioned for the same period (449-287).[1691] That one which led to the Hortensian legislation is historical, and it is hardly possible that all the others are fictions.
Another conservative check was the application of oblative auspices to the plebeian assembly.[1692] Livy[1693] reports that in 293 the tribunes resigned because of a faulty election, held probably in violation of oblativa. In general, however, the plebeian gathering was relatively free from religious control till after the enactment of the Aelian and Fufian laws (about 150).[1694] It had the advantage of the comitia centuriata (1) in freedom from the impetrative auspices, (2) in freedom from the patrum auctoritas, (3) in mobility. Immediately after the adoption of the Valerian-Horatian statute it must have become evident that the tribunician assembly, through the character of its presidency, its composition, and its democratic spirit, was to outstrip the centuriate gathering in energy and aggressiveness, and to be in a word the chief factor of progress in legislation.
No enactment affecting the jurisdiction of tribunes is referred to Valerius and Horatius by the ancient writers; and yet the arrangement by which they thereafter brought their capital actions before the centuries could not have been made without the consent of the government. If, on the other hand, the tribunes now possessed an unconditioned power to subject patricians, whether magistrates or private citizens, to capital prosecutions, they would have found it so effective a means of political warfare as no longer to need obstruction and sedition in their struggle for plebeian rights. In capital cases the permission of a higher magistrate, ordinarily after 367 the praetor, was required; and before the enactment of the Hortensian statute, we may well believe, the tribunes had no means of forcing this permission. Some similar restriction must have been placed on their liberty to bring finable actions.
The comitia tributa under tribunician presidency had at length become an effective constitutional factor in legislation and in jurisdiction. But its action in the former sphere was dependent upon the favor of the senate, in the latter on that of a patrician magistrate. The range, too, of its legislation was restricted by the wide administrative powers of the senate. We shall find it in the following period winning freedom and enlarging the field of its activity.
The following literature is for the whole period from 449 to 287.
Schulze, C. F., Volksversammlungen der Römer, 341-70; Hüllmann, K. D., Staatsrecht des Altertums, 354-67; Niebuhr, B. G., Römische Geschichte, i. 624 ff., Eng. 283 ff.; see also index, s. Tributcomitien; Schwegler, A., Röm. Geschichte, see index, s. Tributcomitien; Mommsen, Th., Röm. Staatsrecht, iii. 300 ff.; Röm. Forschungen, i. 151-66; Röm. Strafrecht, 462-8, 473-8, 1014-6, et passim; Ihne, W., History of Rome, bk. VI. chs. i, viii; Ueber die Entstehung und die ältesten Befugnisse des röm. Tribunats, in Rhein. Mus. N. F. xxi (1866). 161-79; Entwickelung der Tributcomitien, in Rhein. Mus. N. F. xxviii (1873). 353-79; Peter, C., Gesch. Roms, bks. ii, iii; Lange, L., Röm. Altertümer, i. 586-681, 821-56; ii. 459-94, 533-42, 565-97, 613-42; De legibus Porciis libertatis civium vindicibus, in Kleine Schriften, i. 342-429; De plebiscitis Ovinio et Atinio disputatio, ibid. ii. 393-446; Ueber das poetelische Gesetz de ambitu, ibid. ii. 195-202; Kleineidam, F., Beitr. z. Kentniss d. lex Poetelia, in Festg. f. F. Dahn, ii. 1-30; Ihm, Ambitus, in Pauly-Wissowa, Real-Encycl. i. 1800-3; Madvig, J. N., Verfassung und Verwaltung des röm. Staates, i. 234-46; Voigt, M., XII Tafeln, i. 683-90; Karlowa, O., Röm. Rechtsgeschichte, i. 409; Girard, P. F., Histoire de l’organisation judiciaire des Romains, i. 149-59, 237 ff.; Puchta, G. F., Cursus der Institutionen, i. (10th ed. 1893) 166-9 (on lex and plebiscite); Mispoulet, J. B., Institutions politiques des Romains, i. 207-30; Études d’institutions Romaines, 66-81; Willems, P., Droit public Romain, 160 ff., 173 ff.; Greenidge, Legal Procedure of Cicero’s Time, 327-49; Herzog, E., Geschichte und System der röm. Staatsverfassung, i. 153 ff., 189-96, 216 ff., 248-64, 279-88, 1128-88; Glaubwürdigkeit der Gesetze bis 387 der Stadt; Lex Sacrata und das Sacrosanctum, in Jahrb. f. Philol. xxii (1876). 139-50; Dupond, A., De la constitution et des magistratures Romaines sous la république Romaine, 75 ff.; Borgeaud, C., Histoire du plébiscite, 57-76, 117-67; Hallays, A., Comices à Rome, ch. iii; Morlot, E., Comices électoraux sous la république Romaine, ch. iv; Ptaschnik, J., Die Wahl der Volkstribunen vor der Rogation des Volero Publilius, in Zeitschr. f. österreich. Gymn. xiv (1863). 627-38; Publilische Rogation, ibid. xvii (1866). 161-200; Die Centuriatgesetze von 305 und 415 U. C., ibid. xxi (1870). 497-525; Lex Hortensia 473 U. C. ibid. xxiii (1872). 241-53; Stimmrecht der Patricier in den Tributcomitien, ibid. xxxii (1881). 81-102; Ruppel, K. W., Teilnahme der Patrizier an den Tributkomitien; Soltau, W., Gültigkeit der Plebiscite, in Berliner Studien, ii (1885). 1-176; Clason, D. O., Kritische Erörterungen über den röm. Staat, 30-9; Schmidt, J., Die Einsetzung der röm. Volkstribunen, in Hermes, xxi (1886). 460-6; Meyer, E., Der Ursprung des Tribunats und die Gemeinde der vier Tribus, in Hermes, xxi (1895). 1-24, controverted by Vassis, in Athena, ix (1897). 470 ff.; Pais, Ancient Italy, chs. xx, xxi; Garofalo, F. P., L’origine e l’elezione dei tribuni e degli edili della plebe con un indice alfabetico dei loro nomi; Podestà, G., Il tribunato della plebe in Roma dalla secessione sul monte sacro all’approvazione della legge di Publilio Volerone; Eigenbrodt, A., De magistratuum Romanorum iure intercedendi; Ackermann, H., Ueber die raümlichen Schranken der tribunizischen Gewalt; Tophoff, De lege Valeria Horatia, Publilia, Hortensia; Hennes, Das dritte valerisch-horatische Gesetz und dessen Wiederholungen; Long, G., On the Passage in Appian’s Civil Wars (i. 8) which relates to the Licinian Law, in Classical Museum, iii (1846). 78 ff.; Kubitschek, Aedilis, in Pauly-Wissowa, Real-Encycl. i. 448-64; Humbert, G., Aedilis, in Daremberg et Saglio, Dict. i. 95-100; Bloch, L., Die ständischen und sozialen Kämpfe in der römischen Republik; Willoughby, W. W., Political Theories of the Ancient World, ch. xvi; Strachan-Davidson, T. L., Decrees of the Roman Plebs, in Eng. Hist. Rev. v (1890). 462-74; Dreyfus, R., Les lois agraires sous la république Romaine, pt. I. chs. i-iii; De Sanctis, G., Storia dei Romani, I. chs. xiii, xiv, xvii; Billeter, G., Gesch. d. Zinsfusses, 115 ff.