Chapter V The People and Its Powers
We have already noticed the duality of procedure by which the powers of the people were exercised, and seen that every popular act was dependent on a rogatio.1160 But different spheres of popular activity may conveniently be distinguished. They may be divided into (i.) legislative or quasi-legislative acts; (ii.) elective; (iii.) judicial.
(i.) With respect to legislation proper, the Roman, like every other government which recognises the theory of parliamentary sovereignty and has no provision for a constituent assembly, drew no distinction between constitutional and other laws. But in our enumeration we may conveniently distinguish between those ordinances which altered the structure of the constitution and affected public rights, and those which dealt merely with the private relations of the citizens to one another.
In constitutional legislation the power of the people was unlimited. They could create new parliaments, as they did the comitia tributa populi;1161 they could delegate full powers of legislation to parliaments already existing, as they did to the concilium plebis.1162 They could devolve powers almost amounting to sovereign rights on an individual, as they devolved them ultimately on the Princeps. They might suspend the constitution and set up a provisional government, as they did when they gave constitutive powers to the decemvirs or to Sulla.
They might also observe or create rules which limited their own power of utterance. A result of observance of a rule is a formula which appears in Roman laws declaring their operation invalid in so far as they conflict with any fundamental obligation—the fas or jus which lies at the background of the state and which the people themselves dare not infringe. The scruple was expressed in the saving clause—
Si quid jus non esset rogarier, ejus ea lege nihilum rogatum.1163
Primarily this clause guarded a law against being a breach of a religious obligation;1164 but, as interpreted by Cicero, it was a profession of respect even for certain ultimate secular rights—the rights for instance, to the possession of citizenship.
The creation of limitations may be instanced by the provision of the Twelve Tables, which forbade enactments to the detriment of individuals (privilegia),1165 and by a principle—perhaps rather a rule of procedure analogous to the formalities of legislation—which forbade laws on different subjects to be passed en bloc (per saturam), a provision re-enacted by a lex Caecilia Didia of 98 B.C.1166
The creation of new magistracies was also within the power of the people, and, originally, the extension of an office beyond its proper term. In the year 327 B.C., at the commencement of the second Samnite war, the consul Q. Publilius Philo had his imperium prolonged by a plebiscitum;1167 although, as early as 308 B.C., in the prorogation of the command of the consul Q. Fabius Maximus, the Senate alone is mentioned as giving its sanction.1168
The establishment of special judicial commissions to decide without appeal, in cases where the ordinary authorities were felt to be unable to cope with crime or conspiracy, was, in the strict theory of the constitution, entirely in the people’s hands. Commissions of this kind are found in 187,1169 172,1170 and 1411171 B.C. In all these cases there was co-operation between the Senate and people, and it is not until the revolutionary period that the people ventures on its own authority to establish a commission for criminal investigation.1172
The public rights of the individual were also under the control of the comitia, and the conferment of citizenship was solely the people’s gift. As originally the patrician comitia could alone coopt patricians,1173 so in later times the assembly of the whole Populus could alone admit new partners to its rights. Civic rights could be conferred on individuals or communities, in whole or in part, and the Plebs was for this purpose equally competent with the Populus.1174 A mediate grant of the citizenship could be made by the conferment of the power by the people on a magistrate entrusted with the founding of a settlement, as when the lex Appuleia of 100 B.C. granted the right to Marius to raise three persons to the citizenship in any colony which he planted.1175 Citizenship might also be conferred by an imperator for good service in the field; but the power had to be given, or perhaps in some cases the grant retrospectively sanctioned, by the people. Such a power was given by law to Pompeius after the war with Sertorius;1176 but Pompeius may provisionally have conferred the citizenship during the campaign. Marius granted the boon on the field of battle;1177 he may have already had the power given him by the people,1178 or he may have calculated on the subsequent ratification of his act.
Deprivation of the citizenship of a community, the legality of which by any power was questioned in the later Republic,1179 could be effected, if at all, only by the people, and the people might in this particular be represented by the Plebs. It was this body which pronounced on the fate of Capua in 210 B.C., and their decision entailed a criminal condemnation, the penalty of being sold into slavery. The people, however, did not itself pronounce deprivation of citizenship, but left the fate of the Capuan burghers to the Senate.1180
The people might also give the right of voting to those who already possessed citizenship without it. This was so entirely a popular gift that even the previous deliberation of the Senate was not considered necessary for such a conferment. When a tribune proposed to grant the right of suffrage to the municipia of Formiae, Fundi, and Arpinum in 188 B.C., he was met by the veto of four of his colleagues, who insisted that the Senate’s judgment should first be taken. But, yielding to instruction on the true principle of such gifts, they eventually withdrew their opposition.1181
The deprivation of voting power—tribu movere in the extreme sense—seems to have been retained by the censor,1182 although a protest against its use to disfranchise a whole class was raised in 169 B.C.1183. The people alone could impose a new burden on itself, and taxation belonged wholly to the comitia.1184
Passing to legislation on private matters, we find that any fundamental change in the legal relations of citizens to one another must be effected by the people. The law of the Twelve Tables is itself a lex centuriata, and we need only think of laws, such as those on usury, or the lex Voconia on inheritance, as types of a multitude of others. In the matter of civil procedure also a fundamental change, such as that permitting the use of the formula in place of the legis actio in cases falling under the jus civile, required legislation.1185 Yet we feel that it is only a question of degree whether such changes are effected by the people or by the authority of individuals. In matters of substantive law immense changes were brought about by the interpreting authority of the praetor;1186 while in procedure also much was left to the discretion of pontiffs, magistrates, and jurists. The same principle of division of authority applies to police regulations. Wide as were the coercive powers of the magistrates, sweeping infringements on individual liberty, such as those created by the sumptuary laws, were the work of the people.
We may pause here to examine the form of a lex, and especially that portion of it which secured its validity—its sanction. A complete law contained three parts: (1) its preamble (praescriptio), which described the formal circumstances of its enactment;1187 (2) the text, in which a minute and exhaustive formalism was rigorously preserved; (3) the sanction, which contained the pains and penalties pronounced against those who violated the provisions of the enactment. A poena, however, was not of itself sufficient to constitute a perfect law. A lex perfecta was one which declared an act invalid and imposed a penalty for disobedience. The imposition of a penalty without the declaration of invalidity constituted a lex minus quam perfecta.1188 A law without a sanction was imperfecta.1189 The method of repeal most frequently practised at Rome was rather that of supersession than of the declaration of the nullity of the former enactment. Hence the sanction of laws often gives impunity to those who by obedience incur the pains and penalties pronounced by some previous measure.1190 Repeal might be either complete or partial, and a series of technical terms was evolved to express this difference.1191
The attempt of certain laws to secure finality by prohibiting repeal was necessarily futile, as opposed to the whole theory of parliamentary sovereignty.1192 It is possible, however, that the leges sacratae of the early Republic, such as that which made the tribune sacrosanct, were regarded as unalterable. The execratio, which was their sanction, may have been regarded as a fundamental religious obligation, and have been held, as such, to be one of those sacred rights which, as we have seen,1193 no law professed to infringe.
The sovereign privilege of exempting individuals from laws was naturally possessed at first by the legislative body itself; but by a curious revolution, which we shall trace elsewhere,1194 this singular privilege became a prerogative of the Senate.
The people’s control of external matters, although it is still, from a juristic point of view, legislative, bears a closer resemblance to the administrative functions of a Greek or modern government. Here the magistrate was empowered to act in all matters of detail, and we shall see how this magisterial sphere was usurped by the Senate. The people had only the control of the fundamental relations of Rome with foreign states. Their activity was confined to the declaration of war, the making of treaties, and the giving of charters.
A declaration of war was, according to Roman notions, strictly necessary only when treaty relations, or even at times relations which approximated to those of a treaty,1195 had been broken. Such a declaration could be made only by the people.1196 But the international point of view was not the only dominant one in this matter. The people must have been consulted in many cases where there were no treaty relations, and the reason would have been simply the advisability of its declaring its will on a matter which might be of vital importance to the community. The comitia centuriata seems invariably to have represented the people in this capacity.1197 With respect to the conclusion of international relations, we shall touch elsewhere on the controverted question1198 whether the magistracy had the right of binding the popular conscience by a sworn treaty, or whether this required the consent of the people. The survival of the controversy into as late a period as that of the Jugurthine war seems to prove that the federative power was once a magisterial privilege; and the fact is also attested by the inclusion in agreements made by commanders of a clause specifying that the agreement should only be valid if ratified by the people.1199 In the middle Republic there was no question that treaty relations were the prerogative of the people,1200 and, unlike the case of the declaration of war, the Plebs is here included in the conception of the people.1201 By the nature of the case it could only be the outlines of an agreement that were thus laid before the comitia, and details of settlement were left to the commander, assisted by a commission.1202 The organisation of a province and the lex provinciae that followed the subjection of a district were not usually interpreted in the light of treaty relations; they were the work of a commander and a senatorial commission. On the other hand, cities with treaties (civitates foederatae) and cities with charters (civitates liberae) have their rights given them by the people. In the one case the rights are guaranteed by an irrevocable agreement sworn to by the fetiales; in the other by a revocable charter (lex data), which as late as 71 B.C. is still an utterance of the people (lex rogata).1203 We shall see, in dealing with the Senate, that, even in this matter of granting treaties or charters to separate states, senatorial authority encroached on that of the people.
(ii.) We have already seen how in theory the popular power of election was a modification of a principle of nomination;1204 after its recognition the principles regulating it were practically those of legislation, the magistrate questioning and the people commanding. The representation of the dual community is here rather more marked than in the case of legislation; for while a plebiscitum is often spoken of as a lex, no one credits the tribune with the position of a magistratus populi, and however wide his powers may have become, he always remains in theory the head of the plebeian community. The preliminaries to election necessary to the candidate for office have already been considered,1205 and the further process of election will be dealt with when we describe the procedure of the comitia as a whole.
(iii.) The origin of the jurisdiction of the people is, as we have seen, obscure; but it is probable that it did not spring wholly from the provocatio,1206 and even in cases where it did, the appeal tended to become extinct, from the fact that a magistrate who recognised the restrictions imposed on his imperium by law would not pronounce a sentence, but would bring the case immediately before the people. A trial before the people (judicium populi) took place when a magistrate recognised the limitations on his power; the provocatio—an extremely rare occurrence in the later Republic—was required to start the same procedure when the magistrate refused to recognise these limitations.
The judicial competence of the different magistrates and comitia was determined partly by law, partly by custom. Two fundamental principles were recognised:—
(1) That capital cases should be reserved for the centuries. To this there is the exception furnished by the special capital jurisdiction of the Plebs.1207
(2) That a case initiated by a magistrate could be tried only in that assembly which the magistrate was competent to approach. To this principle there were two exceptions: first, the consular delegates—the quaestors and the duumviri perduellionis—although possessing no jus agendi cum populo, yet guided the assemblies in which an appeal from their decision was made;1208 and secondly, the tribune, when conducting a capital prosecution before the comitia centuriata, approached, and perhaps had the presidency of, this body.1209
But, as a rule, the official character of the magistrate who conducts the prosecution, and the nature of the penalty which he proposes, are signs of what assembly passes its final judgment on the case.
The capital jurisdiction of the consuls, expressed through the quaestors, was exercised in the comitia centuriata; an appeal against the coercitio of consuls and praetors, when the fine which they imposed passed the limit of the multa suprema1210 came before the comitia tributa populi. The jurisdiction of the aediles1211 was always exercised before the tribes; the curule aediles as magistratus populi must have brought their case before the comitia tributa populi; the plebeian aediles, who, as magistrates of the Plebs, had no right of approaching the people, appeared before the concilium plebis. With regard to the tribunes, where their jurisdiction was capital, it may in certain cases have been exercised by the concilium plebis, but usually necessitated an appearance before the comitia centuriata,1212 where it was pecuniary, the tribune would invariably have brought the case before his own assembly of the Plebs.
The procedure in a judicium populi consisted of two stages. In the first, the magistrate who intended to impose a sentence which was beyond the limits of his personal jurisdiction held a preliminary examination (anquisitio).1213 This is conducted with the fullest publicity before an informal assembly or contio which he has summoned. This preliminary investigation is repeated three times, on days not necessarily consecutive. The magistrate is represented as a prosecutor, and his expressions of opinion at these meetings are spoken of as accusationes. His final judgment, consequent on the proceedings of the third contio, is a bill (rogatio), which he gives notice of his intention to bring before the comitia. The penalty proposed in this bill need not be that originally suggested, for the investigation may have led the magistrate to amend his original proposal.1214
The legal interval for promulgation—three weeks—then elapsed, and at its close the proposal was brought by the magistrate before the comitia. It was then either accepted or rejected (necessarily without amendment) by the assembled people. This formal assembly (comitia) was, in judicial as in legislative acts, preceded by a contio; and the magistrate’s final statement of his proposal before this contio is spoken of as his “fourth accusation” (quarta accusatio).1215 If, through any chance, such as evil auspices, the bill was not carried through the comitia, a fresh promulgation, with another interval of three weeks, was necessary for a revival of the trial. This necessity made a repetition of a prosecution by the same magistrate on the same charge very infrequent.1216
Hitherto we have been treating the case of a judicium populi consequent on the magistrate’s recognising the limitations on his power. But there is a possibility of his refusing this recognition, and in this case the matter can be brought to the people only by means of an appeal (provocatio) lodged by the accused. This contingency was, in the middle and later Republic, unusual but not unknown, for the jurisdiction of the duumviri perduellionis was, as we know from the case of Rabirius,1217 regulated at times in such a manner that an appeal to the people was an essential part of the procedure.
In such a case there were two magisterial investigations instead of one. The first was the quaestio, as a result of which the magistrate had pronounced the appellable sentence; the second was the anquisitio before the people preceding the decision in the comitia. It must occasionally have happened that different magistrates conducted these two stages of procedure; for if an individual appealed against the decision of a magistrate in a province or in the field, this magistrate might himself be unable to conduct the case at Rome.
The people is represented from a very early time as rescinding its own sentences.1218 This rescission was simply the repeal of a law, and was perhaps not regarded originally as the revision of its own sentence by a court. No provision was made that the particular assembly which had pronounced the sentence should repeal it. This was, indeed, sometimes the case. Popilius, for instance, who had been held responsible for the judicial murders following the fate of Ti. Gracchus, was both banished and restored by plebiscita.1219 But, on the other hand, Metellus, “interdicted” by a consular bill, which must have been passed at the comitia centuriata,1220 was restored by the rogatio of a tribune,1221 while Cicero himself, banished by a tribunician enactment, was recalled from exile by a consular law passed at the comitia centuriata.1222
A further step in the exercise of this power was taken when attempts were made to rescind the decisions of the judices of criminal commissions by decrees of the people. This was first attempted in 88 B.C. by the tribune P. Sulpicius Rufus, who carried a plebiscitum for the restoration of exiles who had been condemned by the Varian commission.1223 Other tentative steps in the same direction led up to Caesar’s bill of 49, by which he effected the restoration of those who had been condemned under the Pompeian laws of 52 B.C.1224 The instances of this period generally illustrate the rescission of the decrees of special commissions, which were themselves political weapons evoked by party conflict, but M. Antonius when tribune is said to have effected the restoration of a man who had been condemned for an ordinary crime,1225 and, therefore, presumably by an ordinary quaestio perpetua, and it seems clear that by Cicero’s time this power of restitution by the comitia had come to be regarded as practically one of pardon. Each of the three legislative assemblies was competent to “restore” (restituere). The proposals are usually tribunician, but Caesar also employed praetorian rogations (probably before the comitia tributa) for the purpose.1226
Two powers analogous to that of the rescission of a sentence are the remission of outlawry and amnesty.
The outlawry referred to is not that following on aquae et ignis interdictio, which was an act of the people and the confirmation of a criminal sentence, but that consequent on a decree of the Senate, which had pronounced individuals to be hostes. Although we might have expected that the Senate, which passed, would be the body to rescind such a decree, we find the belief that the restitution of the outlawed required a lex or plebiscitum. Marius pretended that such a permit was necessary for his entrance into Rome in 87 B.C.,1227 and Octavian in 43 B.C. had a law passed which rescinded the outlawry of Dolabella.1228
Amnesty is an act which implies that no trial and no condemnation, whether pronounced by a court or other body, have taken place; it gives immunity from the consequence of criminal acts that have not yet been judged. This, however, is a prerogative, not of the people, but of the Senate. It was a decree of this body that gave an immunity (not subsequently respected) to Caesar’s murderers in 44 B.C.,1229 and a similar act in 33 B.C. granted an amnesty to senators who had during the civil war raised troops at their own cost.1230
The occasional grounds of invalidity of these legislative or quasi-legislative acts of the people have already been incidentally considered. We have spoken of the conditions of the auspices and the intercession,1231 neglect of either of which made a law ipso jure invalid, and the same consequence followed a breach of the formal rules which the people had made for its own guidance, such as the rules of promulgation which we shall soon discuss, or the provision against the union of heterogeneous measures in the same bill.1232 In the earlier period of Republican history such invalid ordinances were, when they took the form of election, subjected to a procedure resembling repeal, and there are many instances of magistrates vitio creati forced to abdicate their office, a renewal of the elective procedure following on their abdication;1233 and even in the case of laws which offended against fundamental principles of the constitution, it was at all times considered safer to secure their formal repeal.1234 But the more logical idea of absolute nullity, which required no repeal, subsequently prevailed, and we shall find that it is the Senate which, as the guide of the executive power, pronounces enactments to be invalid in consequence of formal flaws.
When we turn from the “people” in general to its manifestations in the separate comitia and in the concilium of the Plebs, we find that, although historically we are dealing with different parliaments, practically we are treating the Roman community engaged with different orders of the day under different formal rules. The people require to be organised in one way for one function, in another way for another,1235 but under the changing forms there is a unity of personnel which forbids us regarding the different assemblies as different sovereigns.1236 The only disturbance to this unity is found in the fact that the Patricians were always excluded from the concilium of the Plebs.1237
The comitia curiata, the oldest sovereign in Rome, was a mere shadow of its former self. Its main constitutional function was that of passing the lex curiata, which was necessary for the ratification originally of the imperium1238 and, with the creation of fresh patrician magistracies, of the potestas which these involved.1239 Yet although in theory no magistracy was properly constituted (justus) until its holder had received the ratification of the curiae, we know that in the case of those with imperium, and we may conclude that in that of others, most of the ordinary functions could be exercised without this sanction. It was only the full exercise of the imperium, whether in jurisdiction, in military command, or in the transmission of office, that was in suspense until the lex had been elicited. Without it the praetor could not give justice from his tribunal,1240 the consul could not hold an assembly for the creation of his successor,1241 and whether as magistrate or pro-magistrate could not exercise the full imperium in the field,1242 until the ambiguous wording of the lex Cornelia de provinciis ordinandis made the requirement in this last particular a doubtful point.1243
For the purpose of this conferment the comitia curiata was in Cicero’s day often represented by but thirty lictors,1244 and the same scanty attendance may have sufficed for the other formal acts which it retained from antiquity. These are the acts of the comitia calata.1245 The public will and testament made at this assembly was extinct at the close of the Republic; but the comitia still met, under the presidency of the pontifex maximus, for the inauguration of the rex sacrorum and the flamines, and under the same guidance for the detestatio sacrorum made by one who passed from his gens either by an act of adrogation or by transition from the patrician to the plebeian order.1246
The comitia centuriata, once known as the “greatest of the comitia” (comitiatus maximus),1247 not only from its importance as expressing the sovereign will, but from the possibility of enforcing the attendance of the assembled army, always retained something of its military character and its association with the imperium. Its summons and presidency belong by right only to the magistrates with imperium. The consuls are its normal presidents for elections and for laws; the praetor approaches it for purposes of jurisdiction, and the interrex for the election of a consul. The election of magistrates with imperium and of the censors was confined to this body, and we have already seen how its supreme judicial authority was asserted and infringed.1248 The army alone could declare war,1249 but its legislative power, though never lost, was infrequently asserted after the recognition of sovereignty in the two assemblies of the tribes which were more easily summoned and organised.
But not only did the tribe assemblies infringe the power of those of the centuries, they became the later model of the latter, and the tendency to detract from the influence of wealth was shown in the reorganisation of the comitia centuriata on a tribal basis.1250 The date of this change is unknown; but, as the redistribution of the centuries in its final form assumes the existence of thirty-five tribes, the alteration may not be earlier than the year 241 B.C. The leading principle of the new arrangement was that the five classes were distributed over all the tribes in such a manner that there were two centuries of each class—one century of seniores and one of juniores—in a single tribe. Each class thus had two votes in a tribe and seventy votes in all. The eighteen centuries of knights still stood outside the tribe; so did the four centuries of fabri, accensi, tibicines and cornicines, and the fifth century of proletarii which probably existed at this time.1251 The total number of centuries would thus be 373 (350 + 18 + 5). The majority of this number is 187, but the first class and the equites together now have but 88 votes, thus losing their preponderance in voting power. In spite of this arrangement by tribes there is no tribal vote. The unit of voting is still the century, and it is the number of centuries that decides the question. The organisation is still by classes, the seventy centuries of each class voting as distinct bodies.1252 The equites seem still to have had the right of voting first,1253 and the first class took precedence of the others; for the lot which designated the centuria praerogativa1254 seems to have been cast only amongst the seventy groups of seniores and juniores belonging to this class.1255
The restoration by Sulla of the older method of voting (88 B.C.)1256 was not a permanent reform. It disappeared during the Cinnan reaction, and it is questionable whether it was renewed by the dictator. If it was, it soon vanished with other items of his aristocratic reorganisation.
The comitia tributa was the most handy of all the assemblies of the full Populus, and was, consequently, the most frequently employed for the passing of leges. Its presidents were the patrician magistrates, usually the consuls and praetors and, for purposes of jurisdiction, the curule aediles. It elected these aediles and other lower magistrates of the people, as well as the twenty-four tribunes of the first four legions. Its jurisdiction was limited to pecuniary penalties.
The concilium plebis, practically the sovereign body of the state, differed from this last assembly in two respects. It could be summoned only by plebeian magistrates and it never included the Patricians.1257 Besides issuing universally valid decrees (plebiscita), it elected the magistrates of the Plebs, and in its judicial capacity was the body which considered the penalties which they had formulated. By the strict letter of the Twelve Tables this jurisdiction should have been limited to the imposition of fines,1258 but, besides instances of its capital jurisdiction at an early period of its history, it continued to possess the unquestioned right of pronouncing outlawry (aquae et ignis interdictio) against any one already in exile,1259 and after the time of Caius Gracchus there are traces of an independent capital jurisdiction which it exercised against magistrates who had violated the provocatio.1260
The freedom of this plebeian assembly was for a time limited by Sulla’s ordinance (88 B.C.) directing that no measure should be brought before it which had not received the previous sanction of the Senate;1261 but the old powers of unimpeded legislation were restored in 70 B.C. If Sulla also took the right of prosecution from the tribune,1262 the higher jurisdiction of the Plebs was restored by the enactment which gave it back its legislative power, for tribunician prosecutions continue to the end of the Republic.
An anomalous use of the popular suffrage was made in the case of elections to the priestly colleges. Formerly they had been kept distinct from the secular life of the state, and even when the reforming spirit dictated that they should be submitted to the voice of the people, a religious scruple forbade the intervention of the comitia. The electoral body was composed of seventeen tribes selected by lot from the thirty-five, and this body, which was not the Populus,1263 was presided over by a pontiff.1264 This organisation was probably first applied about the middle of the third century B.C. to the creation of the pontifex maximus: it received a great extension at the close of the second century. A Domitian law, a plebiscitum of 104 B.C., applied election in a modified form to the religious collegia—probably to the four great guilds of pontiffs, augurs, quindecemvirs, and epulones. The college in question presented, the people elected and gave to the college again a congé d’élire, whereupon the chosen candidate was solemnly coopted by the members of his guild.1265 Sulla abolished this mode of appointment, and perhaps with it the popular election of the chief pontiff, restoring the aristocratic mode of cooptation; but appointment by the seventeen tribes was restored again in 63 B.C., through a plebiscite of the tribune Labienus.1266
Our final task in connexion with the people and its powers will be to describe the preliminaries to the meetings of the comitia and the concilium, and the mode in which business was transacted at these gatherings.
The legal days of meeting (comitiales dies) were those which were neither holy (nefasti) nor dedicated to the work of justice (fasti). The 194 days thus left clear were further broken into by the nundinae, the first days of the eight-day week, on which not even a contio could be held,1267 and by the movable festivals (feriae conceptivae) which were fixed by the magistrates. These rules of time were binding on all meetings of Populus and Plebs; those of place differed for the various assemblies. The assembly of the curiae met within the pomerium, usually in the Comitium on the north-west of the Forum.1268 The centuries, on the other hand, must meet without the walls, and their place of assembly was usually the Campus Martius, but meetings are sometimes found in other places such as “the Peteline grove outside the river-gate,” and an unknown site called the Aesculetum.1269 The two assemblies of the tribes were originally bound to no locality, except for the fact that the plebeian, as purely city, magistrates could not easily find their way outside the walls. But the eliciting of a rogatio from the tribes by the consul in his camp at Sutrium in 357 B.C. led, through the fear of military influence, to the rule that no resolution should be elicited from the people in the military domain,1270 and since that date the two assemblies of the tribes were held within the first milestone. The open space of the Capitol (area Capitolii) was at one time their usual resort both for elections and for laws, but in the later period of the Republic it was found convenient to conduct the elections both of the lower and plebeian magistrates in the Campus Martius, while the Rostra in the Forum, the usual centre of demagogic strife and the ordinary gathering place for contiones, was chosen as the site for the legislation of the tribes.1271
The first step in the intercourse of a magistrate with the people, which was to produce a binding act, was the setting forth by the former of a decree specifying the day of meeting,1272 and describing the nature of the act which he meant to introduce. This promulgation1273 assumed various forms in accordance with the purpose of the projected meeting. In prosecutions it contained the name of the accused, the nature of the charge, and the penalty proposed; in elections at least the places to be filled, but probably in later times a list of the candidates as well;1274 in legislation the text of the law which was to be the subject of the rogatio. No provision seems to have been made that the text should remain unaltered until a Licinio-Junian law of 62 B.C. provided that a copy of the promulgated enactment should be deposited in the aerarium as a guarantee that no amendment was inserted before the people was asked to accept it.1275
The minimum interval between the promulgation and the meeting was the space of three nundina, i.e. 24 days, and this condition was as necessary for jurisdiction and elections as for laws.1276 On the appointed day the first act of the magistrate, who meant to guide a meeting of the Populus, was the auspicatio in the sacred enclosure (templum) which formed the centre of the gathering. Celestial signs alone1277 seem to have been the object of this morning watch; but no such observation was necessary for plebeian gatherings; they were disturbed only by auspicia oblativa.1278 The auspices had been taken before sunrise, and if they were favourable the herald was then sent round the walls inviting the people to meet the magistrate at dawn.1279 This was sufficient for the comitia of the tribes.1280 For the centuries more elaborate preparations were necessary. Proclamation of the meeting was made from the Rostra, and the red flag flew from the Janiculum to show that it was guarded while the army was busy in the Campus.1281 The military horn was blown on the arx and round the walls, and, if the summons was for a court of justice, before the house of the accused.1282
When the people were assembled the president opened with a prayer,1283 and the rogatio was read with the request whether the quirites “will and order it” (velitis, jubeatis). The magistrate is now addressing a contio, and the rogatio is subjected to a limited discussion. The president explains and advises it, and the officials or senators whom he has assembled express their support or dissent.1284 This discussion always preceded acts of legislation.1285 When the comitia met for jurisdiction there may have been some debate even in the quarta accusatio;1286 it was probably only at elections that it was wholly absent.
When the discussion was over the contio was dissolved. Those who had no votes were dismissed from the enclosure;1287 to those with votes the magistrate said, “Si vobis videtur, discedite, quirites,”1288 thus asking them to divide up into their separate compartments, whether tribes or curiae or centuries. The enclosure was deemed large enough to hold all the privileged citizens, although where such a space could have been found on the Capitol or in the Forum is one of the mysteries of Roman topography. This enclosure was divided longitudinally into as many compartments (consaepta) as there were voting divisions. Each division was connected with the magistrate’s tribunal through a gallery (pons) running the whole length of the enclosure, this high gallery being connected with the various voting compartments by separate descending pontes.
The votes in each compartment were taken singly, and were given at the exits of the various pontes. During the greater part of Republican history votes were given verbally, the tellers (rogatores) marking them off on tablets by means of points (puncta).1289 In legislation the affirmative answer was uti rogas, the negative antiquo; in jurisdiction acquittal and condemnation were pronounced by libero and damno; in elections dico and facio seem to have been employed.1290 But in the latter half of the second century of the Republic the ballot was introduced. The change was gradual. Secrecy was first secured for elections by the lex Gabinia of 139, and for jurisdiction, with the exception of cases of treason (perduellio), by the lex Cassia of 137. The lex Papiria of 131 extended the principle to legislation, and finally the lex Caelia of 107 admitted it for cases of treason.1291 In legislation and jurisdiction the old formulae were retained, the tablets which were distributed being marked V and A, or L and C. For the purpose of elections blank tablets were distributed on which the voters wrote the names.1292 The tabellae were now thrown into an urn (cista) at the exit of each pons. The reckoning of the votes (diribitio) was in the hands of tellers who were sometimes called by the old name rogatores, but were also spoken of as diribitores.1293 The cistae were watched by public custodes, and in the case of elections the candidates were allowed to place one guardian at each urn.1294
The issue was decided by the vote of the groups. In the assemblies of the curiae and the tribes the voting of the groups took place simultaneously, in that of the centuries in the order which we have already described.1295 In the two former assemblies the order in which the votes of the groups were proclaimed had thus to be decided by lot.1296 The reading (pronuntatio, recitatio) was continued only to the point at which an absolute majority for or against the measure had been obtained. When sixteen curiae or eighteen tribes were found to have given the same vote, it ceased, and the formal announcement of the result (renuntiatio) was then made by the magistrate. In the comitia centuriata the announcement of the result might be reached without all the centuries being called on to vote, since the result of each vote was proclaimed immediately after the group had given it, and the needful majority might be reached before all the groups had voted. The absolute majority was required in elections as well as in legislative acts, and hence the candidate who gained a mere relative majority was not returned.1297
Records of the voting were kept for some time in case the decision should be challenged.1298 The promulgated lex was, as we saw, deposited in the aerarium, as laws which had passed must have been long before this provision was made, but they were kept without order or method, and skilled assistants were required to ferret out the desired enactment.1299 Little regular provision seems to have been made for the publication even of recent measures; but those which were considered important were originally painted on wood and later engraved on bronze, and fixed in temples or other public places.1300