Chapter 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 interests1360 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 3001389 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, 4491395—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, 4431406 (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 comitia1440 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 3251460 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 Horatius1464 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 Livy1467 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’s1476 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 Livy1519 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 Lange1524 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 Cicero1527 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, Sallust1530 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 Cicero1533 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 Ihne1560 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. Rabirius1569 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 day1573 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.