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Title: The Roman assemblies from their origin to the end of the
Republic

Author: George Willis Botsford

Release date: June 28, 2022 [eBook #68419]
Most recently updated: October 18, 2024

Language: English

Original publication: United States: The Macmillan Company, 1909

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*** START OF THE PROJECT GUTENBERG EBOOK THE ROMAN
ASSEMBLIES FROM THEIR ORIGIN TO THE END OF THE
REPUBLIC ***

THE ROMAN ASSEMBLIES

THE MACMILLAN COMPANY
NEW YORK. BOSTON. CHICAGO
ATLANTA. SAN FRANCISCO

MACMILLAN & CO., Limited
LONDON. BOMBAY. CALCUTTA
MELBOURNE

THE MACMILLAN CO. OF CANADA, Ltd.
TORONTO

THE
ROMAN ASSEMBLIES
FROM THEIR ORIGIN TO THE END
OF THE REPUBLIC

BY
GEORGE WILLIS BOTSFORD
PROFESSOR OF HISTORY IN COLUMBIA UNIVERSITY
AUTHOR OF “THE DEVELOPMENT OF THE ATHENIAN CONSTITUTION,”
“A HISTORY OF GREECE,” “A HISTORY OF ROME,”
“AN ANCIENT HISTORY,” ETC.

New York
THE MACMILLAN COMPANY
1909
All rights reserved

Copyright, 1909,
By THE MACMILLAN COMPANY.
Set up and electrotyped. Published September, 1909.

Norwood Press
J. S. Cushing Co.—Berwick & Smith Co.
Norwood, Mass., U.S.A.

To
MY WIFE
Οὐ μὲν γὰρ τοῦ γε κρεῖσσον καὶ ἄρειον,
Ἢ ὅθ’ ὁμοφρονέοντε νοήμασιν οἶκον ἔχητον
Ἀνὴρ ἠδὲ γυνή· πόλλ’ ἄλγεα δυσμενέεσσι,
Χάρματα δ’ εὐμενέτησι· μάλιστα δέ τ’ ἔκλυον αὐτοί.

PREFACE
This volume is the first to offer in monographic form a detailed treatment
of the popular assemblies of ancient Rome. Necessarily much of the
material in it may be found in earlier works; but recent progress in the field,
involving a reaction against certain theories of Niebuhr and Mommsen
affecting the comitia, justifies a systematic presentation of existing
knowledge of the subject. This task has required patient labor extending
through many years. The known sources and practically all the modern
authorities have been utilized. A determination to keep free from
conventional ideas, so as to look at the sources freshly and with open mind,
has brought views of the assemblies not found in other books. The reader is
earnestly requested not to reject an interpretation because it seems new but
to examine carefully the grounds on which it is given. In general the aim
has been to follow a conservative historical method as opposed to the
radical juristic, to build up generalizations on facts rather than to estimate
sources by the criterion of a preconceived theory. The primary object of the
volume, however, is not to defend a point of view but to serve as a book of
study and reference for those who are interested in the history, law, and
constitution of ancient Rome and in comparative institutional research.
In the preparation of the volume, I have been generously aided by my
colleagues in Columbia University. To Professor William M. Sloane, Head
of the Department of History, I owe a great debt of gratitude for kindly
sympathy and encouragement in the work. It is an especial good fortune
that the proofs have been read by Professor James C. Egbert. Many
improvements are due to his scholarship and editorial experience. Professor
George N. Olcott has advised me on various numismatic matters, and I am
indebted to Dr. John L. Gerig for information on two or three etymologies.
The proofs have also been read and corrections made by Dr. Richard R.
Blews of Cornell University. It is a pleasure to remember gratefully these
able friends who have helped me with their special knowledge, and to add
the name of Mr. Frederic W. Erb of the Columbia University Library, whose
courtesy has facilitated the borrowing of books for the study from other
institutions.

Notwithstanding every effort to make the work accurate, mistakes and
inconsistencies will doubtless be found in it, and I shall thankfully welcome
suggestions from any reader for its further correction and improvement.
GEORGE WILLIS BOTSFORD.
Mount Vernon, New York, June 7, 1909.

CONTENTS
PAGES

PART I
Elements of the Comitial Constitution 1-118

CHAPTER I
The Populus and its Earliest Political Divisions 1-15

CHAPTER II
The Social Composition of the Primitive Populus 16-47

CHAPTER III
The Thirty-five Tribes 48-65

CHAPTER IV
The Centuries and the Classes 66-99

CHAPTER V
The Auspices 100-118

PART II
The Assemblies: Organization, Procedure, and Functions,
Resolutions, Statutes, and Cases 119-477

CHAPTER VI
Comitia and Concilium 119-138

CHAPTER VII
The Contio 139-151

CHAPTER VIII

The Calata Comitia 152-167

CHAPTER IX
The Comitia Curiata 168-200

CHAPTER X
The Organization of the Comitia Centuriata 201-228

CHAPTER XI
The Functions of the Comitia Centuriata 229-261

CHAPTER XII
The Comitia Tributa and the Rise of Popular Sovereignty, to
449 262-282

CHAPTER XIII
The Comitia Tributa and the Rise of Popular Sovereignty,
from 449 to 287 283-316

CHAPTER XIV
The Judicial Functions of the Comitia Tributa, from 287 to the
End of the Republic 317-329

CHAPTER XV
Comitial Legislation, from Hortensius to the Gracchi 330-362

CHAPTER XVI
Comitial Legislation, from the Gracchi to Sulla 363-411

CHAPTER XVII
Comitial Legislation, from Sulla to the End of the Republic 412-461

CHAPTER XVIII
The Composition and Preservation of Statutes, Comitial
Procedure, and Comitial Days 462-472

CHAPTER XIX
A Summary of Comitial History 473-477
Bibliography 479-498
Index 499-521

THE ROMAN ASSEMBLIES

PART I
ELEMENTS OF THE COMITIAL CONSTITUTION

CHAPTER I
THE POPULUS AND ITS EARLIEST POLITICAL DIVISIONS

I. The Populus

The derivation of populus, “people,” “folk,” is unknown. Attempts have
been made to connect it with populari, “to devastate,” so as to give it
primarily a military signification—perhaps simply “the army.”[1] In the
opinion of others it is akin to plēnus, plēbes, πλῆθος, πολύς, πίμπλημι,[2] in
which case it would signify “multitude,” “mass,” with the idea of collective
strength, which might readily pass into “army” as a secondary meaning.[3]
Fundamentally personal, it included all those individuals, not only the
grown men but their families as well, who collectively made up the state,
whether Roman or foreign, monarchical or republican.[4] Only in a
transferred sense did it apply to territory.[5] The ancient definition, “an
association based on the common acceptance of the same body of laws and
on the general participation in public benefits,”[6] is doubtless too abstract
for the beginnings of Rome. Citizenship—membership in the populus—
with all that it involved is elaborately defined by the Roman jurists;[7] but
for the earlier period it will serve the purpose of the present study to
mention that the three characteristic public functions of the citizen were
military service, participation in worship, and attendance at the assembly.[8]
In a narrower sense populus signifies “the people,” “masses,” in contrast
with the magistrates or with the senate, as in the well known phrase, senatus
populusque Romanus.

II. The Three Primitive Tribes

The Romans believed that the three tribes which composed the primitive
populus were created by one act in close relation with the founding of the
city.[9] For some unknown reason they were led to connect the myth of Titus
Tatius, the eponymous hero of the Tities,[10] with the Quirinal,[11] and with
the Sabines,[12] who were generally supposed to have occupied that hill.[13]
Consequently some of their historians felt compelled to defer their account

of the institution of the tribes till they had told of the union of the Sabines
with the Romans, which at the same time gave them an opportunity to
derive the names of the curiae from those of the Sabine women. Varro,[14]
however, who protests against this derivation, refers the organization of the
people in the three tribes to an earlier date, connecting it immediately with
the founding of Rome. Though he affirmed that one tribe was named after
Romulus, another after Titus Tatius, and the third, less positively, after an
Etruscan Lucumo, Caeles Vibenna, who came to the aid of Romulus against
Titus Tatius,[15] neither he nor any other ancient writer identified the Tities
with the Sabines, whose quarter in the city was really unknown,[16] or the
Luceres with an Etruscan settlement under Caeles whether in the Vicus
Tuscus[17] or on the Caelian hill.[18] Since the Romans knew the tribe in no
other relation than as a part of the state, they could not have thought of their
city as consisting originally of a single tribe, to which a second and
afterward a third were added, or that any one of these three tribes had ever
been an independent community. These views are modern;[19] there is no
trace of them in the ancient writers.[20] Even if it could be proved that they
took this point of view, the question at issue would not thereby be settled;
for no genuine tradition regarding the origin of the primitive tribes came
down to the earliest annalists; the only possible knowledge they possessed
on this point was deduced from the names of the tribes and from surviving
institutions presumably connected with them in the period of their
existence.[21] Under these circumstances modern speculations as to their
independent character and diverse nationality seem absurd. The proper
method of solving the problem is to test and to supplement the scant sources
by a comparative study of the institution.
The low political vitality of the three primitive Roman tribes, as of the
corresponding Greek phylae,[22] when we first meet with them in history,
points to the artificiality of these groups—a condition indicated further both
by their number and by their occurrence in other Italian states.[23] Far from
being confined to Rome, the tripartite division of the community belonged
to many Greek and to most Italian peoples,[24] and has entered largely into
the organization of communities and nations the world over.[25] A derivation
of tribus, Umbrian trifu, accepted by many scholars, connects it with the
number three.[26] The wide use of this conventional number, and more

particularly the regular recurrence of the same three Dorian tribes in many
Dorian cities—as of the same four Ionic tribes in many Ionic cities[27]—and
of the same three Latin (or Etruscan?) tribes in several old Latin cities,
could not result from chance combinations in all these places, but point
unmistakably to the systematic imitation of a common pattern. That pattern
must be ultimately sought in the pre-urban populus, ἔθνος, folk. If we
assume that before the rise of city-states the Ionian folk was organized in
four tribes (phylae) and the Dorian and Latin folks in three tribes, we shall
have a condition such as will satisfactorily explain the tribal organization of
the city-states which grew up within the areas occupied by these three folks
respectively. The thirty votes of the Latins may be best explained by
assuming a division of their populus into three tribes, subdivided each into
ten groups corresponding to the Roman curiae. Whereas in Umbria the
decay of the pre-urban populus allowed its tribes to become independent,
[28]
in Latium a development in that direction was prevented by the rise of
city-states, which completely overshadowed the preëxisting organization.
The Italian city-state grew not from a tribe or a combination of tribes, but
from the pagus,[29] “canton,” a district of the pre-urban populus with
definite consecrated boundaries,[30] usually centering in an oppidum—a
place of defence and refuge.[31] In the beginning the latter enjoyed no
superior right over the territory in which it was situated.[32] A pagus became
a populus at the point of time when it asserted its political independence of
the folk. The new state organized itself in tribes and curiae after the pattern
of the folk. In the main this arrangement was artificial, yet it must have
taken some account of existing ties of blood.[33] At the same time the
oppidum became an urbs[34]—a city, the seat of government of the new
populus. Thus arose the city-state. In the case of Rome several oppida with
parts of their respective pagi[35] were merged in one urbs—that known as
the city of the four regions.[36] Urbs and ager excluded each other, just as
the oppidani contrasted with the pagani;[37] but both were included in the
populus.
Most ancient writers represent the three tribes as primarily local,[38] and
the members as landowners from the founding of the city.[39] Although their
view may be a mere inference from the character of the so-called Servian
tribes, the continuity of name from the earlier to the later institution points

to some degree of similarity between them. It can be easily understood, too,
how in time the personal feature might have so overcome the local as to
make the old tribes appear to be based on birth in contrast with the
territorial aspect of the new.[40]
It was probably on the institution of the later tribes that the earlier were
dissolved. They left their names to the three double centuries of patrician
knights.[41] Their number appears also as a factor in the number of curiae,
of senators, and of members of the great sacerdotal colleges. Other
survivals may be found in the name “tribunus,” in the tribuni militum, the
tribuni celerum,[42] the ludus Troiae,[43] and less certainly in the Sodales
Titii.[44]

III. The Curiae

The curia as well as the tribe was a common Italian institution. We know
that it belonged to the Etruscans,[45] the Latins,[46] and several other peoples
of Italy.[47] There were ten curiae to the tribe, making thirty in all.[48] The
association was composed, not of gentes as many have imagined, but of
families.[49] For the performance of its social and religious functions it had
a house of assembly, also called curia,[50] in which the members—curiales
—gathered for religious festivals. The place of meeting was a part of an
edifice belonging to the collective curiae. In historical time there were two
such buildings—the Curiae Veteres[51] on the northeast slope of the Palatine
near the Arch of Constantine, containing seven curial meeting-places, and
the Novae Curiae[52] near the Compitum Fabricium, containing the others.
Their deities were Juno[53] and Tellus;[54] and their chief festivals were the
Fornacalia and the Fordicidia.[55] As the worship was public, the expense
was paid by the state.[56] At the head of the curia stood the curio—who in
historical time was merely a priest[57]—assisted in his religious functions by
his wife and children,[58] by a lictor[59] and a flamen.[60] The fact that the
curio had these officials proves that he was originally a magistrate.[61] One
of the curiones the people elected curio maximus to exercise general
supervision over the worship and festivals of the association.[62]

Another function of the curiae was political. The grown male members,
meeting in the comitium, constituted the earliest assembly organized in
voting divisions—the comitia curiata—in which each curia cast a single
vote.[63] Religious and political functions the curia continued to exercise far
down into historical time; and for that reason they have never been doubted
by the moderns. For the primitive period Dionysius[64] ascribes to them
military functions as well. His idea is that the three original tribes furnished
military divisions each under a tribune, and the curiae as subdivisions of the
tribe furnished companies, commanded each by a curio chosen for his valor.
[65]
Doubtless the writer fairly describes the military system which Rome
employed before the introduction of the phalanx,[66] and which corresponds
closely with the system prevalent among the early Greeks,[67] Germans,[68]
and other European peoples.[69] The military organization was everywhere a
parallel of the civil. The Roman army, however, was by no means identical
with the curiate assembly, for many belonged to the tribes and the curiae
who for various reasons were exempt from military service.[70]
It is probable, too, that the curiae, as well as the tribes,[71] were territorial
divisions. Not only have we the authority of Dionysius[72] that each curia
occupied a district of the state, but also two of the seven known curial
names—Foriensis and Veliensis[73]—are local. Though the two mentioned
refer to places within the city, the country people were also included in the
associations.[74]

Since Niebuhr the opinion has generally prevailed that the curia was
composed of gentes. A passage which at first glance seems to have a
bearing on the question is Dion. Hal. ii. 7. 4: “Romulus divided the curiae
into decades, each commanded by a leader, who in the language of the
country is called decurion.”[75] The word decurion proves, however, that in
speaking of decades Dionysius is thinking of the military divisions called
decuriae, each commanded by a decurion. In historical times the troop of
cavalry—turma—was divided into three decuriae of ten each, as the word
itself indicates. There were accordingly three decurions to the turma, and
ten turmae ordinarily went with the legion.[76] From Varro[77] we learn that
the three primitive tribes furnished turmae and decuriae of cavalry, the

decuriae commanded by decurions. Dionysius accordingly refers to military
companies—either to the well known decuriae of cavalry or to
corresponding companies of footmen which probably existed before the
adoption of the phalanx.[78] Had he meant gentes, he would have used the
corresponding Greek word γένη. Niebuhr[79] inferred from this passage that
each curia was divided into ten gentes, making three hundred gentes for the
entire state; but a careful interpretation shows that no reference to the
gentes is intended. We cannot infer therefore from this citation that the curia
was divided into gentes.
The other passage relative to the question is Gellius xv. 27. 4,[80] in
which Laelius Felix states that the voting in the comitia curiata was by
genera hominum in contrast with the census et aetas of the centuriate
assembly and with the regiones et loca of the comitia tributa. Niebuhr
identifies genera with gentes.[81] It is clear, however, that in this passage
Laelius is not concretely defining the voting units of the various assemblies,
but is stating in a general way the principles underlying their organization
into voting units. In the comitia centuriata the principle is wealth and age;
census et aetas is not to be identified with centuria or with any other group
of individuals in this assembly. In like manner regiones et loca expresses
the principle of organization of the tribal assembly; or if used concretely, it
must designate the tribes themselves, and not subdivisions of the tribes, for
none existed. Correspondingly genera hominum signifies that the principle
of organization of the curiate assembly is hereditary connection; but so far
as the expression is applied concretely, it must denote the curiae themselves
not subdivisions of these associations. The curia, a religious, social, and
political group based on birth, might well be called genus hominum in
contrast with the local tribe and with the century, composed artificially of
men of similar wealth and age. It is well known, too, that voting within the
curiae was not by gentes but by heads.[82] As no other passage from the
sources, besides these two, has even the appearance of lending support to
the proposition advanced by Niebuhr, and favored by others, that the curia
was a group of gentes, we may conclude that this proposition is groundless.
The result is that the gens had no connection with the comitial organization.

I. The Populus; the beginnings of Rome: Schwegler, A., Römische Geschichte, I. bk. viii; Peter,
C., Geschichte Roms, i. 17 ff.; Niese, B., Grundriss der röm. Geschichte, 16 ff., 28 ff.; Jordan, H.,
Topographie der Stadt Rom im Altertum, I. i. 153 ff; iii. 34; Gilbert, O., Geschichte und Topographie

der Stadt Rom im Altertum, i, ii; Richter, Topographie der Stadt Rom, 30 ff. (see review by H.
Degering, in Berl. Philol. Woch. 1903. 1645 f.); Platner, S. B., Topography and Monuments of
Ancient Rome, ch. iv; Schulze, W., Zur Geschichte lateinischer Eigennamen, 579-82; Pais, E.,
Ancient Legends of Roman History, ch. xii; Nissen, H., Das Templum, ch. v; Italische Landeskunde,
ii. 488 ff.; Kornemann, E., Polis und Urbs, in Klio, v (1905). 72-92; Carter, J. B., Roma Quadrata
and the Septimontium, in Am. Journ. of Archaeol. xii (1908). 172-83; Deecke, Wm., Die Falisker;
Montelius, Die frühesten zeiten Roms, in Correspbl. d. deutsch. Gesellsch. f. Anthr. Ethn. u. Urgesch.
xxxv (1904). 122; Pöhlmann, R., Die Anfänge Roms; Schrader, O., Sprachvergleichung und
Urgeschichte, bk. IV. ch. xii; Heer, König, Sippe, Stamm in Reallexikon der indogermanischen
Altertumskunde; Fustel de Coulanges, Ancient City, bk. iii; Leist, Graeco-italische Rechtsgeschichte,
103 ff.; Alt-arisches Jus Civile, i. 319-36; Meyer, E., Geschichte des Altertums, ii. 510 ff.; Mommsen,
History of Rome, bk. I. chs. iii, iv; Röm. Staatsrecht, iii. 3 ff., 112-22; Marquardt, J., Röm.
Staatsverwaltung, i. 3 ff.; Lange, L., Röm. Altertümer, i. 55-284; Das röm. Königtum, in Kleine
Schriften, i. 77-104; Herzog, E., Geschichte und System der röm. Staatsverfassung, i. 3-23, 969 ff.;
Willems, P., Droit public Romain, 17 ff.; Karlowa, O., Röm. Rechtsgeschichte, i. 30 ff.; Greenidge, A.
H. J., Roman Public Life, ch. i; Bernhöft, F., Staat und Recht der röm. Königszeit, 69 ff.; Genz, Das
patricische Röm, 51 ff.; Morlot, E., Les comices électoraux sous la république Romaine, ch. i.
II. The Primitive Tribes: Niebuhr, B. G., Röm. Geschichte, i. 300-321; English, i. 149-58;
Schwegler, ibid. I. bk. IX. ch. xiv. § 2; Niese, ibid. 30 f.; De Sanctis, G., Storia dei Romani, i. 249-55;
Gilbert, ibid. ii. 329-79; Nissen, Templum, 144-6; Ital. Landesk. ii. 7-15, 496 ff.; Jordan, H., Die
Könige im alten Italien, 35-7; controverted by W. Soltau, in Woch. f. Kl. Philol. xxv (1908). 220-3;
Mommsen, Röm. Staatsr. iii. 95-100, 109-12; Rom. Tribus, 1 f.; Lange, Rom. Alt. i. 81-101; Herzog,
ibid. i. 23 ff.; Madvig, J. N., Röm. Staat, i. 95-8; Mispoulet, J. B., Les institutions politiques des
Romains, i. 3-6; Soltau, W., Altröm. Volksversammlungen, 46-51; Willems, P., Le sénat de la
république Romaine, I. ch. i; Bloch, G., Les origines du sénat Romain, 1-16, 32-8; Bernhöft, ibid. 79
ff.; Genz, ibid. 89-106; Meyer, ibid.; Der Ursprung des Tribunats und die Gemeinde der vier Tribus,
in Hermes, xxx (1895). 1-24; controverted by Sp. Vassis, in Athena, ix (1897). 470-2; Kubitschek,
W., De romanorum tribuum origine ac propagatione 1 ff.; Volquardsen, C. A., Die drei ältesten röm.
Tribus, in Rhein. Mus. N. F. xxxiii (1878). 538-64; Bormann, E., die älteste Gliederung Roms, in
Eranos Vindobonensis, 345-58; Holzapfel, L., Die drei ältesten röm. Tribus, in Beiträge zur alten
Geschichte, i (1902). 228-55; Bertolini, C. I., I celeres ed il tribunus celerum; Zimmermann, A., Zu
Titus, etc., in Rhein. Mus. N. F. 1 (1895). 159 f.; Schlossmann, S., Tributum, tribuere, tribus, in
Archiv f. lat. Lexicog. xiv (1906). 25-40; Schulze, W., Zur Gesch. lateinischer Eigennamen, see
index, s. Ramnenses, etc.
III. The Curiae: Pott, A. F., Etymologische Forschungen, ii. 373 ff.; Corssen, W., Ausspr. index, s.
Curia; Vaniček, A., Etymologisches Wörterbuch der lat. Sprache, 160; Griech.-lat. etym. Wörterbuch,
1116; Niebuhr, ibid. i. 321-54; Schwegler, ibid. i. 610-12; Gilbert, ibid, index s. Curia; Richter, ibid.
index s. Curia; Mommsen, Röm. Staatsr. iii. 89 ff.; Lange, ibid. i. 275-84, and index, s. Curia;
Willems, P., Sén. Rom. ibid.; Bloch, G., Orig. d. sén. 290 ff.; Mispoulet, J. B., ibid. i. 7-9; Fustel de
Coulanges, ibid. 154-7; Karlowa, ibid.; Genz, ibid. 32-50; Hoffmeister, K., Die Wirtschaftliche
Entwickelung Roms, 5 f.; Soltau, ibid. 46-67; Müller, J. J., Studien zur röm. Verfassungsgeschichte, in
Philol. xxxiv (1875). 96 ff.; Ihne, Wm., History of Rome, i. 113 f.; Newman, F. W., Dr. Ihne on the
Early Roman Constitution, in Classical Museum, vi (1849). 15 ff.; Hoffmann, E., Patricische und
plebeiische Curien; Kübler and Hülsen, Curia, in Pauly-Wissowa, Real-Encycl. iv. 1815-26; Pelham,
H., The Roman Curiae, in (English) Journal of Philology, ix (1880). 266-79.
IV. The Gentes: Fustel de Coulanges, ibid. bk. ii; Leist, Graeco-ital. Rechtsgesch. 11 ff.; Alt-
arisches Ius Gentium; Alt-arisch. Jus Civ. i. 461-76 (Irish Kin); Hirt, H., Indogermanen, ii. 409-56;
Engels, F., Der Ursprung der Familie, des Privateigentums und des Staats, ch. v; Howard, G. E.,
History of Matrimonial Institutions, I. pt. i; Levison, W., Die Beurkundung des Zivilstandes im

Altertum; Wildebrandt, M., Die politische und sociale Bedeutung der attischen Geschlechter vor
Solon, in Philologus, Supplb. vii (1899). 135-227; Kovalevsky, M., La gens et le clan, in Annales de
l’institut international de sociologie, vii (1900). 57-100; Ruggiero, E., La gens in Roma avanti la
formazione del comune; Schwegler, ibid. i. 612-15; Lange, ibid. i. 211-59, and see index, s. v.;
Mommsen, Röm. Forsch, i. 1-127; Röm. Staatsr. iii. 9-53, and see index s. v.; Mispoulet, ibid. i. 9-14;
Willems, Sén. Rom. i. chs. i-iii; Müller, J. J., Studien z. röm. Verfassungsgesch. in Philol. xxxiv
(1876). 96-104; Bloch, G., ibid. 102 ff.; Recherches sur quelques gentes patriciennes, in Mélanges
d’archéologie et d’histoire de l’école Française de Rome, 1882. 241-76; Soltau, ibid. 58-64, 652-5;
Bernhöft, ibid.; Genz, ibid. 1-31; Bloch, L., Die ständischen und sozialen Kämpfe in der röm.
Republik; Holzapfel, L., Il numero dei senatori Romani durante il periodo dei rei, in Rivista di storia
antica, ii. 2 (1897). 52-64; Marquardt, J., Privatleben der Römer, 1-26, 353 f.; Deecke, ibid. 275 ff.
(on Italian names); Michel, N. H., Du droit de cité Romaine; Köhm, J., Altlateinische Forschungen,
1-21; Lécrivain, C., Gens, in Daremberg et Saglio, Dict. ii. 1504-16; Ruggiero, E., Diz. ep. iii (1906).
482-6; Casagrandi, V., Le minores gentes ed i patres minorum gentium; Staaf, E., De origine gentium
patriciarum; Lieboldt, K., Die Ansichten über die Entstehung und das Wesen der Gentes patriciae
aus der Zeit der Humanisten bis auf unsere Tage; Botsford, G. W., Some Problems connected with
the Roman Gens, in Political Science Quarterly, xxii (1907). 663-92.

CHAPTER II
THE SOCIAL COMPOSITION OF THE PRIMITIVE POPULUS

This chapter[83] is primarily an inquiry into the social composition of the
comitia curiata. At the same time it seeks to solve a problem which is
doubtless the most fundamental in the early political and constitutional
history of Rome. The result we reach will determine our conception of the
whole course of constitutional development, and of the accompanying
political struggles, to the complete equalization of the social ranks. For if
we believe, as do many of the moderns,[84] that the primitive Roman state
was made up exclusively of patricians, we are forced to the conclusion that
the constitutional development to the passing of the Hortensian laws
centred in the gradual admission of the plebeians and the clients to
citizenship—perhaps even in the amalgamation of two distinct peoples. If
on the other hand we take the ground that from the beginning the plebeians
and the clients were citizens and voted in the comitia curiata, we must think
of these inferior classes as struggling through the early history of their
country for the acquisition not of citizenship but of various rights and
privileges, social, economic, religious, and political, formerly monopolized
by a patrician aristocracy. In attempting to solve the problem here proposed
it will be advantageous to consider (1) the ancient view, (2) the
conventional modern view, (3) the comparative-sociological view.

I. The Ancient View

The three social classes of freemen—plebeians, patricians, and clients—
were formed within the citizen body by official recognition of existing
distinctions not of nationality but of worth. The first step in the process was
the differentiation of the patricians from the plebeians. According to Cicero,
Romulus constituted a number of chief men into a royal council, the senate,
whose members he so highly esteemed as to have them called patres, and
their children patricians.[85] Cicero thinks of the multitude as existing at
first without a politically recognized nobility, yet showing natural
distinctions of worth. By calling into the senate the ablest and best men, the
state ennobled them and their families.[86] Livy’s[87] view is similar:

Romulus selected from the multitude a hundred senators, whom he named
patres, and whose descendants were called patricians. They were chosen
because of their wisdom;[88] on that ground the state granted them nobility,
[89]
which accordingly in Rome, as in every early community, was founded
on personal merit.[90] In the more detailed theory of Dionysius,[91] Romulus
“distinguished those who were eminent for their birth and celebrated for
their virtue, and whom he knew to be rich in the account of those times and
who had children, from the obscure and mean and poor. The lower class he
called plebeians, Greek δημοτικοί, and the higher patres, either because
they were older than the others, or had children, or were of higher birth, or
for all these reasons.... The most trustworthy historians of the Roman
constitution assert that owing to these facts they were called patres and their
descendants patricians.” According to Plutarch,[92] “Romulus, after forming
the army, employed the rest of the people as the citizen body (δῆμος); the
multitude he called populus, and appointed a hundred nobles to be
councillors, whom he called patricians, and their assembly the senate.”[93]
There can be no doubt, therefore, as to the opinion of the ancient writers.
They believed that from the beginning social distinctions existed naturally
within the populus Romanus, and that these distinctions were made the
basis of an official division of the people into nobles and commons, patricii
and plebs, by the government. This view is not only reasonable in itself, but
is supported, as we shall see, by analogies drawn from many other states.
All the sources make the patriciate depend upon connection with the
senate, Dionysius alone showing some inconsistency on this point.[94] Why
the senators were called patres the ancients give various reasons. Cicero[95]
thinks patres a term of endearment; Sallust[96] believes that the name was
applied either because of age or because of the similarity of their duty;
Livy[97] sets it down as a title of honor; Festus[98] thinks chiefly of their age
and wisdom; Paulus,[99] his epitomator, suggests that they were so called
because they divided their lands among the poorer class as fathers among
children; Dionysius[100] gives three possible reasons, (1) greater age, (2)
possession of children, (3) family reputation. The sources generally agree in
representing the patres as men who in age, honor, authority and duty stood
toward the rest of the citizens as a father toward his children, and in
identifying these social-political patres with the senators.[101] An

examination of the word itself will tend to confirm the ancient view. It
seems to have originally signified “protector,” “keeper,” “nourisher,”[102]
hence “owner,” “master.” Pater familias is nourisher, protector, and master
of a household.[103] In late Roman law the term continued to refer not
necessarily to actual parentage but rather to the legal position of the head of
a household;[104] in fact it is only in a distantly derived sense that pater
comes to signify the male parent. Ideas early attaching to the word,
accordingly, are those of power or authority and age. The senate, as this
word indicates, was originally made up of elderly men, senatores, maiores
natu.[105] It would be natural to call them patres because of their authority
over the community or of their age. As a designation of rank, pater,
excepting in jest, is always plural—an indication that the authority and
dignity did not attach to the individual noble but to the senators
collectively; they were collectively patres of the community, not
individually patres of children, clients or gentes.[106] But when in time a
limited number of families monopolized the senate, the term could easily be
extended to the entire privileged circle, meaning those with hereditary right
to authority over the rest of the community.[107] Though in the sources the
patres are generally senators the word is sometimes synonymous with
patricii.[108]
Regarding patricius the Romans reasoned with somewhat less care. They
were right in deriving it from pater, but they made it signify “descended
from,” whereas in fact it means “belonging to,”[109] and designates
accordingly the families of the political patres. Probably it was formed after
patres began to be applied to the entire governing class—a development
which would tend to throw the latter word back to its earlier and narrower
sense.
Had the investigation of these words on the part of the ancients rested at
this point, all would have been well; but an unfortunate guess as to the
derivation of patricii by some unknown antiquarian has brought into the
study of the social ranks unutterable confusion lasting down to the present
day. This conjecture derives patricius from patrem ciere, making it signify
“one who can cite a father.” The attempted etymology, clearly a failure,
would perhaps have been harmless, had it not connected itself with the
ambiguous word ingenuus. Cincius[110] says, “Those used to be called

patricians who are now called ingenui.” Livy has the two ideas in mind
when he represents a plebeian orator as inquiring, “Have ye never heard it
said that those first created patricians were not beings sent down from
heaven, but such as could cite their fathers, that is, nothing more than
ingenui? I can now cite my father—a consul—and my son will be able to
cite a grandfather.”[111] There should be no doubt as to the meaning of these
passages; the antiquarian who conjectured that patricius was derived from
patrem ciere, and therefore defined patricii as those who could cite their
fathers, meant merely those who had distinguished fathers, and hence were
of respectable birth. Ordinarily in extant Latin literature ingenui are simply
the freeborn; and in making Appius Claudius Crassus in 368 include in the
term the whole body of citizens Livy[112] dates this meaning back to the
period before the Licinian-Sextian laws. Elsewhere are indications that in
early times ingenui connoted rather respectable birth, and so applied
especially to the patricians.[113] The quotations from Cincius and the
attempted derivation of patricius from patrem ciere, accordingly, are
sufficiently explained without resorting to the strange hypothesis, held by
some, that in primitive Rome the patricians were the only men of free birth.
In summarizing the ancient view as to the origin and nature of the
patriciate, it will be enough to say that the king chose from the people men
who were eminent for the experience of age, for ability and reputation, to sit
in his council, the senate; the men so distinguished were called patres,
whereas the adjective patricius applied as well to their families—the patricii
being those who could cite illustrious fathers.[114] From this point of view
the Roman nobility did not differ from that of most other countries.
The plebs,[115] then, were the mass of common freemen, from whom the
nobility was differentiated in the way described above. From the ancient
point of view they existed from the beginning, prior even to the patriciate
itself.
It is equally true that in the opinion of the ancients the plebs were prior to
the clients. Cicero[116] records that Romulus distributed the plebs in
clientage among the chief men; Dionysius[117] adds that he gave the
plebeians liberty to choose their patrons from among the patricians. Thus
far their view is in complete accord with modern sociology, which teaches
that such class distinctions first arise through the differentiation of freemen.

Although aware of the fact that clientage existed in other states which were
presumably older than Rome,[118] her historians doubtless felt that the
institution could have been legalized in their own country by recognition
only on the part of the government. They did not, however, work out a
consistent theory of the relation between this class and the plebeians.
Certain passages[119] hint, though they do not expressly assert, that at one
epoch all the plebeians were in clientage, whereas in their accounts of
political struggles the ancient writers uniformly array clients against
plebeians almost from the beginning of the state.[120] The latter view is
historically better founded.
There must have been various origins of clientage, with corresponding
gradations of privilege. The libertini were citizens with straitly limited
rights; other clients, certainly the greater part of the class, not only followed
their patron to war[121] and to the forum,[122] but also testified and brought
accusations in the courts[123] and voted in the assemblies;[124] and when the
plebeians gained the right to hold offices the clients were admitted along
with them to the same privilege.[125] In his relation with the state, therefore,
the ordinary client did not differ essentially from the plebeian.
From the preceding examination of the social ranks it at once becomes
evident that the ancients made the populus comprise both patricians and
plebeians; in further proof of their view may be cited the following juristic
definition: “Plebs differs from populus in that by the word populus all the
citizens are meant, including even the patricians, whereas plebs signifies the
rest of the citizens, excepting the patricians.”[126] Since the sources
generally consider the patricians the descendants of the hundred original
senators,[127] they cannot help regarding the populus as composed chiefly of
plebeians. In common speech the term, like our word people, often applies
to the lower class as distinguished from the higher, in which sense it is
interchangeable with plebs; often, too, it signifies the people in contrast
with the senate.[128] It is clear, then, as Mommsen has pointed out,[129] that
if populus signifies first the whole body of citizens and secondly the
commons as distinguished from the nobles, it could not possibly have as a
third equivalent the patricians as distinguished from the plebeians. In
certain formulae found in addresses, wills, prayers, and oracles, populus is
so joined with plebs (populus plebesque or the like) as to suggest the

possible meaning patricians.[130] The combination of the two words with
senatus,[131] however, reveals at once the overlapping of the terms so
joined. In these passages reference is to the modes by which an individual
may approach the state; he may address the consuls, praetors, or plebeian
tribunes, and in the same way the senate, populus, or plebs.[132] Hence in
these formulae, merely representing groups of institutions through which
the state is accustomed to act, the word populus does not apply solely to the
patricians, and the same may be said of its use in all other connections. We
may conclude, therefore, that the Latin language gives no hint of an
exclusively patrician populus.
Regarding the populus as made up of patricians, plebeians, and clients,
our sources necessarily ascribe the same social composition to its divisions,
the three old tribes and the thirty curiae.[133] With perfect consistency they
mention repeated enlargements of the populus and of the tribes and curiae,
through the admission of masses of aliens, most of whom must have
remained plebeian. In fact the sources uniformly represent all the kings as
freely admitting conquered aliens without exception to the citizenship and
to the tribes and the curiae, even compelling some forcibly to enter this
condition.[134]
Might the plebeians and clients belong in a restricted sense to the populus
and curiae, and yet remain so far inferior to the patricians as to be excluded
from the political meetings of the curiae—the comitia curiata? There can be
no uncertainty as to the answer to this question, for the ancient writers agree
that the comitia curiata included plebeians and clients as well as patricians.
[135]
Not only did the lower classes attend this assembly, but they also voted
in it, and constituted the majority.[136]

II. The Conventional Modern View

The passages cited above suffice to prove that the ancient writers thought
of the populus, and consequently of the comitia curiata, as composed from
the earliest times of patricians, clients, and plebeians. Another question, far
more difficult, is whether the ancients were right in their view.
As none of the authorities on whom we directly depend for our
knowledge of Roman affairs lived earlier than the last century of the

republic, they could have had no first-hand acquaintance with primitive
Roman conditions, but must have drawn their information concerning the
remote past from earlier writers—the annalists—now lost. Niebuhr, who in
the opening years of the last century introduced the modern method of
investigating Roman history, was convinced that writers of the late republic
and of the empire, lacking historical perspective and interpreting their
sources in the false light of existing or recent conditions, came to wrong
conclusions in regard to the primitive Roman state. He believed he could
point to instances of such misunderstanding, and he thought it within the
power of a well-equipped modern historian to eliminate much of the error
so as to come near to the standpoint of the earlier and more trustworthy
annalists.[137]
The position of Niebuhr has in the main proved untenable.
Notwithstanding all the source-sifting of modern times, pursued most
zealously by the Germans, we are obliged to admit that it is rarely possible
with any fair degree of certainty to discover the view of an annalist on a
given subject excepting in the few cases in which the citation is by name.
We must also admit that though Cicero and the Augustan writers might
misinterpret Fabius Pictor in minor details, it is inconceivable that they
should fail to understand his presentation of so fundamental a subject as the
character of the original populus or the composition of the earliest
assembly. Present scholarship accordingly insists that in such weighty
matters there was no essential difference of view between earlier and later
writers.[138]
These considerations have simplified but not solved the problem.
Scholars now agree that no contemporary account of the regal period—
ending 509 (?) b.c.—ever existed; and even if it be conceded that the
earliest Roman annalist—Fabius Pictor, born about 250 b.c.—had access to
traditional or documentary[139] information reaching back to the close of
that period, no historian will admit such a possibility for the beginnings of
Rome. It follows then that for the origin and character of her earliest
institutions Cicero, Livy, and Dionysius, or their sources, have relied
wholly on inference from later conditions, in so far as they have not
resorted to outright invention. Though with their abundant material they
were in a far better position for making such deductions than we are, they
lacked the experience and the acute critical method of the moderns.[140] Of

the three writers above mentioned—our main sources for the subject under
discussion—Cicero was essentially an orator, Dionysius a rhetorician, and
Livy, though historian in name, was in spirit rhetorical and dramatic rather
than critical. Naturally therefore they or their sources, who on the whole
were equally uncritical, made mistakes in the difficult work of drawing
inferences as to the history and institutions of the regal period. Such is the
view of historians today. It was formerly argued that Dionysius, a
rhetorician and a Greek, failed in spite of his twenty-two years of
preparation at Rome to understand the spirit and character of the Roman
constitution and has therefore been an especial fountain of error;[141] but it
is now clear that though in his treatment of early Rome he shows far greater
amplitude than Livy and is for that reason proportionally more liable to
error in detail, he follows good Roman sources for institutions, and is in this
field, with the reservation here mentioned, not essentially inferior to the
extant native writers.[142]
Considering the sources untrustworthy and following certain clues which
he believed they afforded to a right understanding of the annalists, Niebuhr
came to his theory as to the composition of the primitive Roman state.
Although he asserts that it was made up of “patrons and clients,”[143] he
does not rest satisfied with this view, but proceeds to trace clientage to the
following origins, as though in his opinion this institution did not exist from
the beginning: (1) some native Siculians perhaps, who were conquered by
Latin invaders; (2) strangers settling on Roman territory and choosing a
Roman as protector; (3) inhabitants of communities which were obliged to
take refuge under Roman protection; (4) manumitted slaves.[144] Logically
he goes back to a state made up exclusively of patricians.
He sought evidence for this hypothesis in the scheme of tribal
organization of Rome. The primitive city was divided into three tribes,
thirty curiae and, as he believed, three hundred gentes. As no one could be a
citizen without membership in a gens,[145] and as the patricians alone were
active members of the gentes,[146] it must follow that the patricians alone
were citizens. It is doubtful whether he would have proposed this
hypothesis had it not been for the analogy of the Attic tribal scheme. An
imperfect quotation from the lost part of Aristotle’s Constitution of
Athens[147] seems to signify that the Athenian state was once divided into

four tribes (φυλαί), twelve phratries and three hundred and sixty gentes
(γένη). On this authority Niebuhr supposes that the phratry was a group of
gentes, and he assumes further that both phratries and gentes were
composed exclusively of eupatrids.[148] But the suppositions (1) that there
were three hundred and sixty gentes, (2) that the phratry was a group of
gentes, (3) that both phratries and gentes contained only eupatrids are
contradicted by well known facts. From the earliest times the Greek tribes
and phratries included commons as well as nobles. This is true of the
Homeric Greeks,[149] and a law of Draco[150] proves that the early Attic
phratry comprised both nobles and commons. In historical times all citizens
belonged to the phratries; whereas but few were members of the gentes.[151]
Most of the gentes were in fact composed of the old landed nobility, though
a few, like the Chalkidae and the Eupyridae, were apparently industrial
guilds, which had received the privileges of the gentes. So far therefore
from supporting Niebuhr in his peculiar view of the Roman gentes and
curiae, the Attic analogy militates in every way against him. As his
assumption that the curia was a group of ten gentes has already been
disproved,[152] it remains only to consider whether the gens was an
exclusively patrician institution. From the circumstance that patricianism is
not given as an element of Scaevola’s definition, quoted by Cicero,[153] we
may at once conclude that in their time plebeians, too, were gentiles. This
conclusion is supported by a variety of evidence.
Several plebeian gentes are mentioned, including the Minucia and the
Octavia,[154] the Lutatia,[155] the Calpurnia,[156] the Domitia,[157] the
Fonteia,[158] the Aurelia,[159] and the Licinia.[160] Some gentes comprised
both patrician and plebeian families, as the Cassia,[161] the Claudia,[162] the
Cornelia,[163] the Manlia,[164] the Papiria,[165] the Publilia or Poplilia,[166]
the Aebutia,[167] and the Servilia.[168] Not only do the sources refer to
several plebeian gentes by name, but they clearly imply in other ways the
existence of such associations. Livy[169] expresses the patrician sentiment
that “it would seem an affront to the gods for honors to be vulgarized and
for the distinction between gentes to be confused at auspicated comitia” (by
the election of plebeians to the consular tribunate). “The distinction
between gentes” can only mean the distinction between patrician and
plebeian gentes—an interpretation confirmed by a similar statement of

Cicero[170] to Clodius, who had passed by arrogation from a patrician to a
plebeian gens: “You have disturbed the sacra and contaminated the gentes,
both the one you have deserted and the one you have defiled” (by your
admission into it). To our other proofs we may add the consideration that
the very expression gentes patriciae[171] implies the existence of plebeian
gentes. It is natural then that Varro[172] should make gentilitas a condition of
men in general. In asserting that there were a thousand gentile names the
same authority[173] must have included those of plebeians, for scarcely a
hundred belonging to patricians could have been known to him. By no
means the weakest argument in favor of the view here presented is the fact
that the laws of the Twelve Tables concerning inheritance, tutelage,[174] etc.
—which apply not to the patricians alone but to the whole citizen body—
assume that every citizen in full possession of his civil rights belonged to a
gens.
A passage often interpreted against the existence of plebeian gentes is
Livy x. 8. 9: “Vos solos gentem habere.” In this case a plebeian speaker
says the patricians claim that they alone have gens (not gentes). The context
shows clearly, however, that gens does not here denote an association but is
used in the sense of illustrious birth or pedigree,[175] as is sometimes our
word family.[176] Wherever a nobility exists it necessarily lays greater stress
on descent than do the people, and in all countries the nobles are in a far
better position to keep up family connections than are the commons.
Naturally therefore at Rome we hear more of patrician than of plebeian
gentes. But in view of all the facts mentioned above there should be no
doubt as to the existence of the latter. The result of this discussion is that
neither in the composition of the gens nor in its position in the community
can support be found for Niebuhr’s assumption of a patrician state.[177]
Other evidence for his hypothesis Niebuhr thinks he finds in a statement
of Labeo,[178] that the curiate assembly was convoked by a lictor, the
centuriate by a horn-blower; while Dionysius[179] says that the patricians
were summoned by name through a messenger, the people by the blowing
of a horn. Thus Niebuhr maintains that Labeo and Dionysius agree
unequivocally in designating the curiae as the assembly of the patricians.
But in fact these two sources refer to the customs of the historical age, when
the curiate assembly was ordinarily attended by only three augurs and thirty

lictors. Horn-blowing under these circumstances would have been absurd.
The summoning of the patricians by their own name and that of their father,
on the other hand, proves them too few to compose a popular assembly.
These citations therefore are far from supporting his hypothesis. His last
and greatest proof is the identification of the lex de imperio, passed by the
curiae, with the patrum auctoritas. If these are merely two terms for the
same act, the curiae must have been made up of patres. But by establishing
the fact that the patrum auctoritas belonged to the senate or to its patrician
members, Willems[180] and Mommsen[181] have deprived Niebuhr’s
hypothesis of its main prop.
Niebuhr evidently believed that the curiae continued exclusively
patrician through the whole republican period.[182] This idea, however, must
be dismissed for the following reasons: (1) Our sources agree that in the
early republic the plebeians and clients continued to vote in the curiate
assembly.[183] (2) The plebeians were in the curiae in 208 b.c., when the
first curio maximus was chosen from the plebs.[184] (3) In the time of
Cicero thirty plebeian[185] lictors represented the comitia curiata, and gave
the votes.[186] (4) Arrogations by plebeians took place in this assembly; in
the well-known case of Clodius it must be borne in mind that it was a
plebeian who arrogated him. (5) The extinction of the patriciate did not
involve the downfall of the comitia curiata.[187] (6) The confirmation by the
curiae (lex de imperio) of elections in the centuriate assembly was
conceived as a second vote of the community.[188] (7) The resolutions of the
comitia curiata are always thought of as resolutions of the populus, which
Latin literature nowhere restricts to the patrician body. (8) In all ancient
literature there is nowhere the slightest hint of a change in the social
composition of the curiae or of the comitia curiata in the whole course of
their history. What the ancients believed to be true of either institution at
any particular period will hold therefore for its entire history.[189]
Of the arguments in favor of Niebuhr’s hypothesis either added by
Schwegler[190] or brought by him into greater prominence, one only
demands attention. He reasons that if the plebs were in the curiate assembly,
it would be impossible to explain the political advance made by the
institution of the comitia centuriata; and the constitutional history of Rome
would be reduced to an insoluble riddle. Here we have to deal with a

subjective argument—the rejection of sources because they do not agree
with a preconceived theory. Arguments of the kind, however, which may be
easily invented for the support or overthrow of every imaginable
proposition, carry little weight. Besides it is easy to show by analogies from
the history of other peoples that the presence of the commons in the
primitive assembly does not make the constitutional history of Rome a real
enigma. In the primitive German assembly, for instance, were included all
the warriors; and yet in the more developed German states were monarchies
and aristocracies which gave the people little or no voice in the
management of public affairs.[191] The Homeric Greek assembly included
all freemen, who, however, had little to do with the government in that
period, and still less under the aristocracy which followed.[192] In like
manner, although the plebeians attended the comitia curiata and had a
majority of votes in this assembly, they could not thereby control the
government, for they absolutely lacked initiative.[193] The comitia
centuriata, a timocratic institution, elevated the rich and degraded the poor.
Here as elsewhere the poor lost by the substitution of aristocracy for
kingship; but a real constitutional advance was made in the gradations of
privilege, which were based on wealth and which reached like a ladder from
the humblest member of the proletarian century to the patrician knight in
the sex suffragia.[194] These gradations prepared the way for an ultimate
equalization of rights. We conclude, then, that the presence of the commons
in the primitive assembly is perfectly compatible with a rational view of
constitutional development.
With Schwegler, who grants however reluctantly that the commons were
received into the curiae before 208,[195] the theory enters upon its present
phase; for the great majority of writers since his time have accepted his
view, yet with varying opinions as to the date of the change. Mommsen,[196]
who more than any one else has made it clear that, so far back as our
sources reach, the populus comprised both patricians and commons,
nevertheless assumes that the latter were originally outside the populus but
were admitted no later than the beginning of the republic.[197] In his
reconstruction of the primitive state he supposes that the citizens were all
patres, in so far as they, and they alone, could be fathers; or adjectively
patricii, in so far as they, and they alone, had fathers.[198] Added to the
citizens and their slaves was a class of persons termed clients, half way

between freedom and slavery—a class made up from various origins but
chiefly by the conquest of neighbors.[199] These clients belonged, as
dependents of the gentes, to the curiae, but had no vote in the assembly.[200]
Later the plebs were formed from the clients as the bond which united the
latter with their patrons relaxed.[201] The plebs, who were free citizens of
inferior rank, came into being at the moment when the patricio-plebeian
comitia centuriata acquired the right to express the will of the community.
[202]

Although Mommsen knows well the weakness of the evidence offered by
earlier writers, he adopts the hypothesis of an original patrician state,
without attempting a systematic defence. Here and there in his works,
however, he mentions some fact or condition which he would like to have
considered proof. The following are the chief passages of this kind:
(1) The lack of right to the auspicia[203] and to the imperium[204] on the
part of the plebeians proves that the patriciate was the original citizenship.
But we could as reasonably say, with reference to the auspices, that the
two Attic gentes which furnished the sacred exegetes contained the only
Athenian citizens.[205] The auspicia, as Soltau[206] has noticed, belonged to
the ius honorum, as did also the imperium; hence they were both privileges
of the nobility. In brief Mommsen’s reasoning would make a governing
nobility everywhere impossible.
(2) The cavalry were patrician; therefore the infantry must have been.[207]
With the same kind of reasoning we could conclude that because in the
Homeric age of Greece chariots were used in war by nobles only, the
infantry must also have been exclusively noble; whereas we know that the
rank and file were common men.[208] That the Roman army before Servius
was similarly composed is supported not only by this and many other
analogies, but also by the unanimous testimony of the sources. As in other
primitive states the warriors belonged to the assembly and were the citizens.
(3) Of the sixteen local tribes named after gentes it can be proved that ten
have the names of patrician gentes, and not one name is known to be
plebeian. This is evident proof that from the beginning the patriciate was
not nobility but citizenship.[209]

His premises prove no more than that at the time when these tribes were
instituted the patricians were influential enough to give their names to ten,
probably to all sixteen. In all the three cases mentioned, Mommsen reasons
that because the patricians alone enjoyed the honors, privileges, and
influence usually considered appropriate to a nobility, they must therefore
have constituted not the nobility simply but the whole citizen body.
(4) He identifies patres with gentiles and assumes that the primitive state
was an aggregate of gentes, thus making the patres the only members of the
state.[210]
These are not proofs but unsupported assumptions. The only connection
of patres with gentes given in Latin literature is in the well-known phrases
patres maiorum and minorum gentium; and Cicero[211] makes it clear that
these patres were senators. The phrase means senators from, or belonging
to, the greater or lesser gentes. Furthermore it has been proved (1) that the
patricians were not the only gentiles,[212] (2) that the curia, and hence the
state, was not an aggregation of gentes.[213]
(5) We are informed, says Mommsen, (a) that the body of full Roman
citizens consisted originally of a hundred families, whose fathers, the
patres, regarded more or less concretely as the ancestors of the individual
gentes, composed the senate, and together with them their descendants, the
patricians, made up the citizen body; or expressed in other words (b)
patrician originally meant just what was afterward included under the term
ingenuus.[214]
For (a) Mommsen cites those passages by which it has been shown[215]
that the Romans looked upon the original hundred senators as the fathers
neither of the “citizen body” nor of the “full citizens,” but of the nobility.
His statement of the case is directly contradicted by the authorities he
quotes. As regards (b) it has been sufficiently proved[216] that ingenuus
when made equivalent to patricius most naturally signifies not “of free
birth,” but “of respectable, noble birth.”
Most scholars have wisely avoided bringing the myth of the asylum[217]
into the argument. Pellegrino,[218] however, identifies the refugees at that
place with the entire plebeian body. As the asylum was not an Italian but a
Greek institution,[219] the story connected with it is doubtless a myth. It

seems to have been invented by the Greeks of southern Italy, most probably
in the fourth century b.c. At that time they began to view with alarm the
southward advance of the Romans, and to disparage them accordingly by
falsifications representing their origin as obscure and disreputable.[220]
Similar calumnies against other peoples were concocted by their Greek
enemies.[221] Notwithstanding the fact that the story had not even a kernel
of historical truth the Romans accepted it with more or less
modification[222] and used it to some extent for partisan objects.[223] They
could not oppose the plebs to patricians as foreigners to natives, however,
for (1) they supposed that plebeians as well as patricians participated in the
original settlement of Rome, (2) they derived patrician as well as plebeian
families from foreign sources.[224] We are warranted in concluding that in
adopting the Greek myth of the asylum they looked upon it as a cause of
increase in the plebeian population without finding in it the origin of the
plebeian class.
To the theory of an exclusively patrician populus the following objections
may be summarily urged: (1) It is opposed by the unanimous testimony of
the ancient authorities. (2) It rests upon a wrong explanation of the words
patres, patricii, as designations of the nobles. (3) It is further propped up by
reasons so feeble as to testify at once to its weakness, the more substantial
basis having been overthrown partly by Mommsen himself. (4) The number
of patricians is too small for the theory.[225] (5) It ignores the meaning of the
word plebs, which evidently signifies “the masses,” in contrast with the few
nobles, and hence could not apply to a class gradually formed by the
liberation of clients, or by the admission of foreigners. No one who holds
the theory has attempted to show what these liberated clients were called
when they were but few compared with the patricians—before they became
“the multitude.” (6) It is contradicted by everything we know of Rome’s
attitude towards aliens. So far back as our knowledge reaches, she was
extremely liberal in bestowing the citizenship, even forcing it upon some
communities. Only when she acquired the rule over a considerable part of
Italy did she begin to show illiberality in this respect. Down to 353 the
citizenship thus freely extended included the right to vote.[226] (7) It
assumes the existence of a community politically far advanced yet showing
no inequalities of rank among the freemen—a condition outside the range
of human experience. It aims to explain the origin of the social classes on

purely Roman ground, ignoring the fact that distinctions of rank are far
older than the city, and exist, at least in germ, in the most primitive
communities of which we have knowledge.[227]

III. The Comparative-Sociological View

As social classes belong to all society,[228] they cannot be explained by
the peculiar conditions of any one community. The only scientific approach
to this subject is through comparative study; the inferences of the ancient
historians relative to primitive Rome are not to be displaced by purely
subjective theories, but are to be tested by comparison with conditions in
other communities of equal or less cultural advancement.
Distinctions of rank depend ultimately upon physical, mental, and moral
inequalities,[229] which differentiate the population of a community into
leaders and followers.[230] The exhibition of physical strength and skill on
the part of young men and of knowledge and wisdom on the part of the
elders are often “the foundation of leadership and of that useful
subordination in mutual aid which depends on voluntary deference.”[231] In
an age in which men were largely under the control of religion the
possession of an oracle or skill in divination or prophecy might contribute
as much to the elevation of an individual above his fellows.[232] Leadership,
once obtained, could display and strengthen itself in various ways. In
primitive society the strong, brave, intelligent man was especially qualified
to take command in war. Success brought the chief not only renown but a
large share of the booty and in later time acquired land. The same result
might be obtained by other means than by war;[233] but in any case wealth
and influence inherited through several generations made nobility.[234]
Primarily grounded on ability, wealth, and renown, this preëminence was
often heightened by a claim to divine lineage or other close connection with
the gods.[235]
There was evidently a stage of development—before the association of
the nobles into a class—in which chieftains alone held preëminence. This
condition is common in primitive society, as among the American Indians.
[236]
Also among the Germans, who had advanced somewhat beyond this
stage, each chief or lord appears to have been noble “less with reference to

other noblemen than with reference to the other free tribesmen comprised in
the same group with himself.”[237] From Brehon law we infer that the Irish
lords were individually heads of their several groups of kinsmen or of
vassals;[238] and in Wales the nobles were a hierarchy of chieftains.[239] As
soon as leadership became hereditary there arose noble families, in which
the younger members were often sub-chieftains;[240] and finally through
intermarriage among these families, as well as through the discovery of
common interests, the nobles associated themselves into a class.
Among the ancient Germans,[241] the Greeks of the Homeric age,[242] and
in some early Italian states[243] certain families had become noble, and
others were on the way to nobility. For ancient Ireland the entire process
can be followed. A common freeman enters the service of some chief, from
whom he receives permission to use large portions of the tribe land.[244] By
pasturing cattle, he grows wealthy, becomes a bo-aire (cow-nobleman) and
secures a band of dependents. Supported by these followers, he preys upon
his neighbors and, if successful, becomes in time a powerful noble.[245]
After “a certain number of generations” he can no longer be distinguished
from the blooded nobility.[246] Here is an instance of a common freeman’s
becoming noble through service to a chief. In like manner among the
Saxons who had conquered England the ceorl who “thrived so that he had
fully five hides of land,” or the merchant who had “fared twice over the
wide sea by his own means,” became a thane; “and if the thane thrived, so
that he became an eorl, then was he henceforth worthy of eorl-right.”[247]
“The thanes were the immediate companions of the king—his comitatus—
and from their first appearance in English history they took rank above the
earlier nobility of Saxon eorls, who were descended from ancient tribal
chiefs. Thus the thanes as a nobility of newly rich corresponded to the cow-
noblemen of an earlier time.”[248] In the way just described many rose from
the lower ranks to nobility. In fact, eminent authorities assert that the
inferior nobles, especially of the middle age, were more often of servile
than of free origin, as the common freemen were inclined to think it
degrading to be seen among the comites of a chief.[249]
It has now been sufficiently established that even in the tribal condition
people were differentiated into social ranks. We have traced the beginning
of nobility to leadership and have found, in both ancient and mediaeval

society, new noble families forming by the side of the old. Social
distinctions were well developed long before the founding of cities. When a
community, whether a tribe or a city, is far enough advanced to begin the
conquest of neighbors, “it has already differentiated into royal, noble, free,
and servile families.”[250] This was true of Sparta. In her “the conquerors
nevertheless, notwithstanding great differences among themselves, remain
sharply separated in social function from the conquered.... The conquerors
became a religious, military, and political class, and the conquered an
industrial class.”[251] Even in the case of Sparta, however, which is perhaps
our best example of the exclusiveness of a ruling city, there is evidence of
mingling between the conquering Spartans and the conquered Laconians
before the former became exclusive.[252] In like manner there was much
mixing of the invading “Aryans” with the natives of India—the more
intelligent of the natives rising to the higher classes and the less gifted of
the invaders sinking to the lower—before the crystallization of the castes.
[253]
We find the same mingling of conquerors and conquered in varying
degrees in ancient Ireland,[254] in England under the Normans,[255] and
throughout the Roman empire in the period of Germanic settlements.[256] It
becomes doubtful, therefore, whether a nobility was ever formed purely by
the superposition of one community upon another. The effect of conquest
was rather to accentuate existing class distinctions, and by a partial
substitution of strangers in place of native nobles to stir up antagonism
between the classes. Even where the differences between the social ranks
seem to be racial, it would be hazardous to resort to the race theory in
explanation; for such a condition could be produced in the course of
generations by different modes of life, education, nurture, and marriage
regulations of the nobles and commons respectively.[257]
The study pursued thus far will enable us to understand how there came
to be social classes at Rome before the beginning of conquest. But for a
long time after the Romans began to annex territory we may seek in vain
for a distinction between conquerors and conquered, like that which we find
in Laconia. We are forbidden to identify the plebs with the conquered and
the patricians with the conquerors by many considerations mentioned above
—for instance, by tradition,[258] by the derivation of several patrician gentes
from various foreign states,[259] by the fewness of the patricians,[260] and by
the fact that the latter show no differentiations of rank, such as we find

among the conquering Spartans; they were not a folk but a nobility pure and
simple. We are to regard Rome’s early annexations of territory and of
populations not as subjugations, but as incorporations on terms of equality.
The people incorporated were of the same great folk, the Latins, or of a
closely related folk, the Sabines. Accordingly they were not reduced to
subjection, but were admitted to citizenship, to the tribes and the curiae, and
their nobles were granted the patriciate.[261] Only communities of alien
speech, like the Etruscan, or distant Italian communities like the
Campanian, were ordinarily given the inferior civitas sine suffragio; and
this restricted citizenship does not appear in history before the middle of the
fourth century b.c.
The analogies offered in this chapter, by proving that the conditions they
illustrate are possible for early Rome, tend to confirm the authority of the
sources. By similar comparative study it would be practicable to illustrate in
detail and to corroborate the statements of ancient writers as to the
organization of the plebs, as well as of the patricians, in tribes and curiae,
the participation of the clients and plebeians in war and politics, and the
deterioration of the free commons through the strengthening of the nobility
—all of which are rejected by eminent modern historians, who merely
imagine them incompatible with primitive conditions or with a rational
theory of constitutional development. The inquiry has been pursued far
enough, however, to indicate that from a comparative-sociological point of
view the conception of early Rome handed down to us by the ancients is
sound and consistent, and that the method of subjective reconstruction of
history introduced by Niebuhr and still extensively employed by scholars is
unscientific.

I. Roman Society: Niebuhr, B. G., Römische Geschichte, i. 321 ff.; English, 158 ff.; Schwegler,
A., Römische Geschichte, I. bk. xiv; Wigger, J., Verteidigung der nieburschen Ansicht über den
Ursprung der röm. Plebs; Peter, C., Geschichte Roms, i. 31-3; Verfassungsgeschichte der röm.
Republik; Studien zur röm. Geschichte mit besonderer Beziehung auf Th. Mommsen; Ihne, W.,
History of Rome, i. 109 ff.; Early Rome, ch. ix; Asylum of Romulus, in Classical Museum, iii (1846).
190-3; Forschungen auf dem Gebiete der röm. Verfassungsgeschichte (also translated into English by
Heywood); Lange, L., Röm. Alt. i. 414 ff., and see indices s. Patres, Plebs, etc.; Mommsen, Th.,
History of Rome, bk. 1. chs. v, vi; Röm. Forschungen, i. 131-284; Röm. Staatsrecht, iii. 127 ff., and
see indices s. Patres, Plebs, etc.; Abriss d. röm. Staatsrechts, 3 ff.; Herzog, E., Geschichte und System
der röm. Staatsverfassung, i. 32 ff.; Meyer, E., Geschichte des Altertums, ii. 515-7, 521 f.; v. 141-3;
Plebs, in Handiwörterb. d. Staatswiss. vi. 98-106; Niese, B., Grundriss der röm. Geschichte, 36 f.;
Ampère, J. J., Histoire Romaine à Rome, i. 440 ff.; ii. 15 ff.; Zöller, M., Latium und Rom, 163;
Ridgeway, W., Early Age of Greece, i. 254 ff.; Oberziner, G., Origine della plebe Romana; Conway,

R. S., I due strati di populazione Indo-Europea del Lazio e dell’Italia antica, in Rivista di storia
antica, vii (1903). 422-4; Hüllmann, K. D., Ursprünge der röm. Verfassung durch Vergleichungen
erläutert; Mispoulet, J. B., Institutions politiques des Romains, i. 14 ff.; Greenidge, A. H. J., Roman
Public Life, 4 ff.; Abbott, F. F., Roman Political Institutions, 6 ff.; Naudet, M., De la noblesse et des
récompenses d’honneur chez les Romains; Hoffmann, Patricische und plebeiische Curien; Pelham,
H., Roman Curiae, in (English) Journal of Philology, ix (1880). 266-79; Soltau, W., Altröm.
Volksversamml. 58 ff., 625 ff.; Bernhöft, F., Staat und Recht der röm. Königsz. 145 f.; Genz, H., Das
patricische Rom; Clason, D. O., Kritische Erörterungen über den röm. Staat; Fustel de Coulanges,
Ancient City, bk. iv; Pellegrino, D., Andeutungen über den ursprünglichen Religionsunterschied der
röm. Patricier und Plebeier; Hennebert, A., Histoire de la lutte entre les patriciens et les plébeiens à
Rome; Bloch, L., Die ständischen und sozialen Kämpfe in der röm. Republik; Wallinder, De statu
plebeiorum romanorum ante primam in montem sacrum secessionem quaestiones; Neumann, K. J.,
Grundherrschaft der röm. Republik, Bauernbefreiung und Entstehung der servianischen Verfassung;
Holzapfel, L., Die drei ältesten römischen Tribus, in Beiträge zur alten Geschichte, i (1902). 228-55;
Heydenreich, E., Livius und die röm. Plebs, in Samml. gemeinverständlicher wissenschaftlicher
Vorträge, xvii (1882). 581-628; Christensen, H., Die ursprüngliche Bedeutung der Patres, in Hermes,
ix (1875). 196-216; Staaf, E., De origine gentium patriciarum commentatio academica; Terpstra, D.,
Quaestiones literariae de populo, etc., ch. i; Köhm, J., Altlateinische Forschungen, ch. i; Bröcker, L.
O., Untersuchungen über die Glaubwürdigkeit der altröm. Verfassungsgeschichte, 3 ff.; Botsford, G.
W., Social Composition of the Primitive Roman Populus, in Political Science Quarterly, xxi (1906).
498-526 (the present chapter is in the main a reproduction of this article); Some Problems connected
with the Roman Gens, ibid, xxii (1907). 663-92.
II. Comparative View: Achelis, Th., Moderne Völkerkunde, deren Entwickelung und Aufgaben,
(Stuttgart, 1896) 406 ff.; Ammon, O., Die Gesellschaftsordnung und ihre natürlichen Grundlagen,
(Jena, 1895) Teil i; D’Arbois de Jubainville, La civilisation des Celtes et celle de l’épopée
Homerique, (Paris, 1899) ch. ii; Arnd, K., Die materiellen Grundlagen und sittlichen Forderungen
der europäischen Kultur, (Stuttgart, 1835) 444 f.; Barth, P., Die Philosophie der Geschichte als
Sociologie, i. (Leipzig, 1897) 382; Bastion, A., Der Mensch in der Geschichte, iii. (Leipzig, 1860)
323-38; Allerlei aus Volks- und Menschenkunde, ii. (Berlin, 1888) 138-54; Rechtsverhältnisse bei
verschiedenen Völkern der Erde, (Berlin, 1872) 8 ff.; Bluntschli, J. K., Theory of the State, (2d ed.
from the 6th German: Oxford 1892) bk. II. chs. vi-xiii; Bordeau, L., Le problème de la vie: Essai de
sociologie générale, (Paris, 1901) 95; Brunner, H., Grundzüge der deutschen Rechtsgeschichte, i
(Leipzig, 1901); Bücher, C., Industrial Evolution, ch. ix; Buchholz, E., Homerische Realien, II. bk. i
(Leipzig, 1881); Caspari, O., Die Urgeschichte der Menschheit, I. bk. ii. ch. 3 (Leipzig, 1877);
Cherbuliez, A. E., Simples notions de l’ordre social à l’usage de tout le monde, (Paris, 1881) ch. vi;
Combes de Lestrade, Éléments de sociologie, (Paris, 1896) bk. vi; Cooley, C. H., Human Nature and
the Social Order, (New York, 1902) ch. ix (analysis of leadership); Craig, J., Elements of Political
Science, i. (Edinburgh, 1814) 183-95; Duchesne, L., La conception du droit et les idées nouvelles,
(Paris, 1902) 36; Demolins, E., Comment la route crée le type social, i (Paris); Farrand, L. F., Basis
of American History, (New York, 1904) see index s. Social organization; Featherman, A., Social
History of the Races of Mankind, ii. (London, 1888) see indices s. Classes; Thoughts and Reflections
on Modern Society, (London, 1894) 291-6; Frazer, J. G., Lectures on the Early History of the
Kingship (New York, 1905); Freeman, E. A., History of the Norman Conquest of England, iv (New
York, 1873); Frohschammer, J., Ueber die Organisation und Cultur der Menschlichen Gesellschaft,
(Munich, 1885) 84 f.; Funck-Brentano, Th., Civilisation et ses lois, morale sociale, (Paris, 1876) chs.
v-viii; Fustel de Coulanges, Ancient City, bk. iv; De l’inégalité du wergeld dans les lois Franques, in
Revue historique, ii. (1876) 460-89; Giddings, F. H., Principles of Sociology, (New York, 1896) bk.
III. chs. iii, iv; Ginnell, L., Brehon Laws, a Legal Handbook, (London, 1894) chs. iv, v; Grave, J.,
L’individu et la société, (3d ed. Paris, 1897) ch. ii; Gumplowicz, L., Rassenkampf (Innsbruck, 1883);
Harris, G., Civilization considered as a Science, (new ed. New York, 1873) ch. vii; Hellwald, Fr. von,

Culturgeschichte in ihrer natürlichen Entwickelung bis zur Gegenwart, 2 vols. (Augsburg, 1876);
Hirt, H., Indogermanen, 2 vols. (1905, 1907); Hittell, J. S., History of the Mental Growth of Mankind
in Ancient Times, (New York, 1893) i. 228 f.; ii. 37, 72; Hodgkin, Italy and her Invaders, (2d ed.
Oxford, 1892, 1896) ii, iii; Jenks, E., History of Politics (London, 1900); Kaufmann, G., Die
Germanen der Urzeit (Leipzig, 1880); Krauss, F. S., Sitte und Brauch der Südslaven (Vienna, 1885);
Lepelletier de la Sarthe, Du système social, ses applications pratiques à l’individu, à la famille, à la
société, (Paris, 1855) i. 329 ff.; Letourneau, Ch., Sociology based on Ethnography, (new ed. London,
1893) chs. vi-viii; Maine, H. S., Lectures on the Early History of Institutions, (London, 1875) ch. v;
Mismer, Ch., Principes sociologiques, (2d ed. Paris, 1898) 63 ff.; Müller-Deecke, Die Etrusker, 2.
vols. (Stuttgart, 1877); Rhys, J. and Brynmor-Jones, The Welsh People (New York, 1900); Ridgeway,
W., Early Age of Greece, i (Cambridge, 1901); Ross, E. A., Social Control (New York, 1901);
Rossbach, J. J., Geschichte der Gesellschaft, 3 vols. (1868); Schrader, O., Reallexikon der
indogermanischen Altertumskunde, (Strassburg, 1901) 802-19; Schröder, R., Lehrbuch der deutschen
Rechtsgeschichte (4th ed. Leipzig, 1902); Schurtz, H., Urgeschichte der Kultur, (Leipzig, 1900) ch.
ii; Seebohm, F., Tribal System in Wales (New York, 1895); Tribal Custom in Anglo-Saxon Law (New
York, 1902); Seeck, O., Geschichte des Untergangs der antiken Welt, I. (2d ed. Berlin, 1897) bk. II.
chs. i, iv; Seymour, Life in the Homeric Age, (New York, 1907) 106 f; Skeat and Blagden, Pagan
Races of the Malay Peninsula, i (New York, 1906) 494-520; Spencer, H., Principles of Sociology, II.
(New York, 1883) chs. iv-viii; Tarde, G., Laws of Imitation, trans. from the French, (New York, 1903)
233 ff.; Traill, H. D., Social England, i (New York, 1901); Tribhovandas, Hindu Castes, in Journal of
the Anthropological Society of Bombay, v (1899-1901). 74-91; Vinogradoff, P., Growth of the Manor
(New York, 1905); Waitz, Th., Anthropologie der Naturvölker, ii. (Leipzig, 1860) 126-67; iii. (1862)
119-28; v. (1870) 112 ff.

CHAPTER III
THE THIRTY-FIVE TRIBES

That among the Romans the conception of property first attached to
movable objects is attested by the words “pecunia” and “mancipatio.”[262]
There was probably a period during which the citizens cultivated the lots of
arable land assigned them by the state without regarding these holdings as
property either public or private. In view of the well-established fact that
the gens was a relatively late institution, we should for this remote period
exclude the idea of gentile tenure.[263] The land was distributed among the
families according to tribes and curiae; and when the idea of ownership
extended to the soil, it took the form of family ownership of the ager
privatus and state ownership of the public domain.[264]
The condition of tenure anterior to the conception of property in land left
little trace of itself in the language and institutions and absolutely none in
tradition. The sources declare that family ownership existed in Rome from
her foundation as well as in her earliest colonies—a view confirmed by the
comparative study of language.[265] Each family, they assume, held two
iugera—the heredium[266]—or we may more correctly say, at least two
iugera.[267] This small lot has generally been explained[268] as the private
landed property of the individual, in contrast with the public land and with
the common land of the gens, and thus it is taken as evidence of a condition
prior to the extension of private ownership to the arable fields. Should we
grant this to be the true explanation, we might still assume that public and
gentile tenure had developed into private ownership of arable land long
before Servius, or that Servius himself converted the fields into private
holdings. For the second alternative we could find apparent support in the
sources, which have much to say of the distribution of land among the
citizens by Servius.[269] For the continued absence of private ownership
after the Servian reforms not even the shadow of an authority can be found.
But the explanation of heredium given above is by no means necessary;
in fact the sources regard it not as the only private land, but rather as the
smallest share allotted to any citizen, the rich and noble possessing more.
[270]
While accordingly the wealthy man owned many iugera, the poor man,

limited to his heredium, was obliged to earn part of his living by labor as a
tenant or as a wage-earner in the field of his rich neighbor;[271] and in the
early colonies the bina iugera were granted on the same aristocratic
principle. If this is the true explanation of heredium, the strongest argument
in support of the theory of public ownership at Rome in the late regal period
is taken away; we must either abandon the theory or relegate it to a time far
anterior to the Servian reforms. Mommsen’s assumption[272] that the sixteen
oldest rural tribes were instituted some time after the city tribes by the
division of gentile lands is untenable on other grounds. The gens which
gave its name to the tribe could not have owned all the land in the tribe; for
in that case all but the sixteen gentes would have been landless. Again,
assuming, as he does, that all the land belonged to the gentes, which he
supposes to have been exclusively patrician, we should be forced to
conclude that the division left the plebeians landless. And further, if we bear
in mind that the gens developed from the family, we must also believe that
the undivided gentile land was once a family estate, which according to
Roman usage had to be registered in some tribe, even if the land of the gens
was not so registered. Mommsen’s theory proves therefore not only to be
unsupported by the sources but actually unthinkable. In conclusion we may
safely say that though some land remained public, and though the gens after
it had come into existence owned some common land, individual, or at most
family,[273] ownership was in full force in the earliest times of which we
have knowledge.
The clearest and most detailed account of the origin of the Servian tribes
is given by Dionysius iv. 14. 1 f.: “When Tullius had surrounded the seven
hills with one wall, he divided the city into four parts, and giving to the
parts the names of the hills—to one Palatina, to another Suburana, to the
third Collina, and to the fourth Esquilina—he made the city to consist of
four tribes, whereas up to that time it had comprised but three.... And he
ordained that the men who lived in each of the four parts should not change
their abode or give in their census elsewhere. The enlistment of soldiers
also and the collection of taxes, which they were to pay individually to the
treasury for military and other purposes, were distributed no longer among
the three gentile tribes but among the four local tribes instituted by him....
[15. 1:] And the whole country he divided, as Fabius says,[274] into twenty-
six parts, also called tribes, adding to them the four city tribes; but Venonius

is authority for thirty-one rural tribes, which with those of the city would
complete the thirty-five of our own time. Cato, however, who is more
trustworthy than either of these two, says that all the tribes in the time of
Tullius amounted to thirty, though he does not separate the number of parts”
(into urban and rural).
A great variety of opinion has arisen regarding the original number of the
Servian tribes. Niebuhr[275] believed that Servius created in all thirty,
afterward reduced by unfortunate war with the Etruscans to twenty. This
view found supporters but was refuted by Huschke.[276] Those who rejected
it generally agreed that Servius divided the city into four tribes and the
country into districts, regiones, pagi.[277] Mommsen[278] gave a new phase
to the theory of the subject by assuming that the four so-called city tribes,
which all the sources agree in ascribing to Servius,[279] included the country
as well as the city. According to this hypothesis Alba[280] and Ostia,[281] for
instance, belonged to the Palatine tribe. His opinion has found wide
acceptance.[282] Afterward changing his mind, he asserted that the four
urban tribes were confined within the pomerium—a view which now seems
to be established beyond doubt.[283] With this final position of Mommsen
the creation of theories as to the number and limitations of the Servian
tribes has not been exhausted; for against the view that Servius instituted
only the four urban tribes may be placed that of Pais,[284] who assigns their
origin to the censors of the year 304. The theory of Pais implies that the
sixteen rural tribes which bore gentile names were far older than the four
urban tribes.
Light will be thrown on this obscure subject by an inquiry into the
relation of the sources to one another. It seems certain that Fabius derived
his information concerning the tribes and the entire centuriate organization
from the “discriptio centuriarum”—a document in the censors’ office.
Though ascribed to Servius Tullius as author,[285] it set forth the centuriate
system as it existed in reality before the reform—that is in the time of the
first war with Carthage.[286] It was this late form of the centuriate
organization which Fabius had in mind. He must have been prevented,
however, from ascribing to Servius the institution of all the thirty-three
tribes then existing, by the recollection that two tribes were added as
recently as 299 from territory too far from Rome to have formed a part of

her domain under Servius; and perhaps the curiate organization led him to
favor the number thirty. He made Servius the author of thirty tribes,
accordingly, in spite of the fact that this number was not reached till 318.
His error is not more absurd than the ascription to Servius of the whole
centuriate organization as it stood at the opening of the First Punic War, or
the assumption that in the first Servian census were enrolled eighty
thousand men fit for military service.[287] Cato, who also states the original
number as thirty, without separating them into rural and urban,[288] may
have been influenced by Fabius, though it is likely that he drew from the
same source. Vennonius in making Servius the author of all thirty-five tribes
but slightly exceeds the absurdity of earlier writers.[289] Evidently Fabius
and Cato were the sources for all future annalists. While depending on
them, Varro seems to have noticed the error of ascribing twenty-six rural
tribes to Servius, as there were but seventeen of this class before 387. To
avoid the difficulty and at the same time to retain the Fabian number, he
supposed that the country districts of Servius were not yet tribes but the
regiones from which the tribes were afterward formed[290]—a superficial
explanation in the true Varronian style.[291] Following Varro, however, later
authorities generally speak of the four urban tribes of Servius without
mentioning those of the country.[292] So Dionysius, after referring to the
four city tribes, proceeds to describe their character and functions, as
though these were all the tribes then existing.[293] Thus far he depends upon
Varro. Fortunately, however, he gained from Fabius the information that
there were also twenty-six rural tribes, his description of which[294] is
slightly troubled by the Varronian notion that these country districts were
not so much tribes as regiones, πάγοι, but which served all the purposes of
tribes including the taking of the census.[295]
The various contradictory statements of the ancients regarding the
original number of Servian tribes can now be appreciated at their respective
values. In the course of the discussion it has become evident, too, that
Fabius and Cato, the sources of later annalists, had no tenable ground for
their assumption of thirty original tribes. Had they examined the records,
perhaps the succeeding parts of their own chronicles, they would have
found that before 387 there could have been only twenty-one tribes in all.
[296]
A less certain indication of the admission of one or possibly two tribes

still earlier in the republic may have existed;[297] but here we reach the
extreme limit of their knowledge. Any investigation of the number in the
regal period, whether by the ancients or by the moderns, must rest not upon
contemporary records but upon inference pure and simple. We may inquire,
accordingly, whether the view of Mommsen[298] and Meyer[299] that the
four city tribes were created first and existed for a time before the
institution of the rural tribes, having no trustworthy foundation in the
sources, can be deduced from our knowledge of the general conditions of
the time. We must by all means avoid the supposition of Mommsen[300] that
in the time of Servius there was no private property in land outside of the
city.[301] If then we bear in mind two points which Mommsen has himself
established, (1) that the local tribe was an aggregate of private estates,[302]
(2) that the four urban tribes of Servius were limited to the city,[303] we
must conclude that in the time of Servius the country estates were registered
in rural tribes—in other words that Servius instituted rural as well as urban
tribes.[304] The view of Meyer that all the citizens lived in the city and the
dependents in the country[305]—which would afford a ground for assuming
the urban tribes to have been earlier than the rural—has no basis either in
institutions or in tradition. If originally the country was all-important,[306]
and if at the dawn of history we find the country and city politically equal,
as is actually the case, we have no motive for the insertion of an
intermediate stage in which the city was all-important. There was indeed a
tendency toward the concentration of political power within the city, but it
did not advance beyond the equalization of city and country.[307] To
maintain Meyer’s view we should be obliged to complicate the early history
of Rome with two revolutions—one by which the city gained supremacy
over the country, and the other in which the supremacy was lost. It is
mainly to defend the early history of the comitia, and of the constitution in
general, against this complication that the present discussion of the early
land tenure and of the origin of the Servian tribes is offered.
The original number of tribes, as has been stated, is unknown. It was
increased by the acquisition of territory. Possibly the annalists found an
obscure trace of the admission of the sixteenth rural tribe—the Claudia—in
504. To that year Livy assigns the coming of Attius Clausus with his host of
clients, who were formed into the Claudian tribe.[308] Wissowa[309] suggests

that the immigration of the Claudian gens, the date of which did not appear
in the original tradition,[310] was arbitrarily assigned to the year in which
was recorded the admission of the tribe. This conjecture is supported by the
situation of the Claudia, which would place it among the latest of the
twenty.
With more confidence we may assign the admission of the seventeenth
rural tribe—the twenty-first in the entire list—to 495.[311] It must have been
the Clustumina.[312] We are certain that there were only twenty-one till 387,
when four new tribes were formed, bringing the number up to twenty-five.
[313]
The twenty-sixth and twenty-seventh were admitted in 358,[314] the
twenty-eighth and twenty-ninth in 332,[315] the thirtieth and thirty-first in
318,[316] the thirty-second and thirty-third in 300[317], the thirty-fourth and
thirty-fifth in 241.[318] To the year 90 that number is known to have
remained unchanged, and the evidence of a temporary increase during the
Social War is obscure. On this point Appian[319] states that “the Romans did
not enroll the newly admitted citizens in the existing thirty-five tribes for
fear that, being more numerous, they might outvote the old citizens in the
comitia; but by dividing them into ten parts (?) they made new tribes, in
which the new citizens voted last.” This view of an increase in number is
confirmed by a statement of Sisenna[320] as to the creation of two new tribes
at about that time. Velleius[321] however informs us that the new citizens
were enrolled in eight tribes. In the object of the arrangement he agrees
with Appian. Next he mentions the promise of Cinna to enroll the Italians in
all the tribes. From the connection we should naturally infer that in the
opinion of Velleius the new citizens were enrolled before Cinna in eight old
tribes; and yet it is difficult to understand how the assembly could be
persuaded to visit any group of rural tribes with this disgrace and political
disability.[322] As the authority of Sisenna, if not that of Appian, compels us
to accept the fact of new tribes, it is better to interpret Velleius in that light.
[323]
We may suppose then that the eight tribes which he mentions were
provided for by the Julian law of 90; and we must accept the statement of
Sisenna that in 89 the Calpurnian law “ex senati consulto” created two other
new tribes, in which were to be enrolled the citizens admitted under this
law. Thus we could account for the ten (?) new tribes mentioned by Appian.
As regards the Lucanians and the Samnites, who held out obstinately

against Rome, the same historian[324] states that they were respectively
enrolled in tribes, as in the former instances. He does not inform us,
however, that for this purpose other new tribes were instituted. At all events
there seems to be no essential disagreement among our sources; and we
have no reasonable ground for doubting an increase, though we may remain
uncertain as to the number added.[325]
The arrangement was only temporary. In 88 Sulpicius, tribune of the
plebs, carried a law containing a provision for the distribution of the new
citizens and the libertini among all the thirty-five tribes.[326] His plebiscite
was annulled by the senate on the ground that it had been passed by
violence;[327] but the provisions contained in it were afterward legalized by
a senatus consultum, and it was finally carried into effect by Cinna as
consul in 84.[328] This settlement of the question was approved by Sulla[329]
for all the Italians excepting the Marsians and the Paelignians, who were
enrolled in one tribe—the Sergia.[330]
The nature of the tribes may be inferred from their object. The intention
of the organizer was to introduce the Greek military system, comprising
heavy and light infantry, in which the kind of service to be performed
depended upon financial ability to provide equipments.[331] Seeing that a
classification of citizens with respect to property was necessary for this
purpose, Servius instituted the tribes as a basis for the census. That they
contained the ager privatus only is indicated by the exclusion from them of
the Capitoline and Aventine hills.[332] Their local character is established by
the concurrent testimony of ancient writers.[333] Yet even in the beginning
they could but roughly be described as districts, for they excluded all public
land and all waters and waste places claimed neither by individuals nor by
the government. They retained the approximate character of districts so
long only as the territory of annexed communities continued to be formed
into new tribes. The process came to an end in 241; and it was as early at
least as this date that the Roman colonies, not originally in the tribes, were
incorporated in them.[334] Thereafter the annexation of new territory tended
more and more to render the tribes geographically indeterminate.[335] The
process was far advanced by the admission (90-84) of the Latins and
Italians with their lands to the existing tribes,[336] which were further
enlarged in the imperial period by the incorporation of provincial

communities.[337] As consisting of lands, though no longer necessarily
adjacent, they were still considered local.[338]
The tribe was also a group of persons; in fact the word applies far more
frequently to persons than to territory.[339] During the early republic a
considerable degree of harmony was maintained between the two aspects of
the institution (1) possibly by a restriction on the transfer of residence,[340]
(2) by the change in membership from tribe to tribe, through the censors, on
the basis of a transfer of domicile, (3) by the assignment of new citizens to
the tribe in or near which they had their homes, (4) by the creation of new
tribes for new citizens who did not live in or near the existing tribes. This
harmony experienced its first serious disturbance through the enrolment of
the landless, irrespective of domicile, in the urban tribes in 304,[341] but
continued to such a degree that a hundred years later the rural voters
generally still resided in their own tribes.[342] In the last century of the
republic the personal tribe, emancipated from the local, depended solely on
inheritance and the will of the censors.[343]
The original composition of the personal tribe is determined by its purely
military object. It comprised accordingly those only who were liable to
service in war. From the early Roman point of view those citizens were
qualified who found their livelihood in agriculture.[344] Not all landowners
were enrolled in the tribes; for Latin residents,[345] freedmen,[346] widows
and orphans,[347] all of whom might possess land, lacked membership.
Those proprietors, too, were excluded whom the censors assigned to the
aerarii as a punishment. Tribesmen were all the other landowners—
adsidui[348] et locupletes[349]—together with the male descendants of
military age under their potestas.[350]
Another object of the tribes, referred to Servius by our sources, was the
collection of taxes.[351] We know that they afterward served this purpose;
and the ancient writers, who could have had no direct knowledge of the
intentions of Servius but who assigned to him without hesitation all the later
developments of his organization, were in this case especially misled by
their false derivation of tributum from tribus or vice versa.[352] A brief study
of the facts in the case will prove their inference to be wrong. The most
obvious consideration is that had Servius intended the tribes for the levy of

taxes as well as for military purposes, he would have included all who were
subject to taxation as well as all who were liable to service in the army,
whereas in fact he admitted those only who were to serve. It is to be noted
that primitive Rome imposed no regular direct taxes on the citizens in
general. Every man equipped himself for war even after the introduction of
the phalanx;[353] doubtless at first the knights provided their own horses;
[354]
and in short campaigns the soldiers carried their provisions from their
own farms.[355] Fortifications and public buildings were erected by forced
task-work. The king supported himself partly by gifts from his subjects and
partly from the public property, including land.[356] Other early sources of
revenue were tolls levied for the use of harbors, boundaries, temples,
bridges, roads, sewers, and salt works.[357] In time the idea arose, too, that
the person who did not perform military service should help with his
property in the defence of the country. The estates of widows and orphans
were accordingly taxed to support the horses of the knights.[358] Those men,
also, who were exempt from service because they possessed no land[359]
and yet had other property were required to pay on it a regular tax. From
this connection with the public treasury (aerarium) they were termed aerarii.
This class comprised shopkeepers and merchants. Sometimes the censors
assigned to it as a punishment men who owned land. The fact that such
persons were at the same time removed from their tribes is sufficient proof
that the aerarii were originally outside these associations.[360] The cives sine
suffragio, or Caerites, after this class had come into existence in 353, were
like the aerarii in (1) that they did not belong to the tribes, (2) that they paid
a regular tax, (3) that men were placed on their list as a punishment. They
may accordingly be regarded as a special class of aerarii, enrolled as they
were in a distinct list.[361] Whereas the cives sine suffragio either wholly
lacked the franchise, as the phrase implies, or at most had but the right of
the Latins,[362] the other aerarii must have voted in the proletarian century.
[363]

The ordinary taxes sufficed for the usual light expenses; but in case of
especial need an extraordinary tax was imposed upon the citizens. It was
called tributum from tribuere, “to apportion,” because it was distributed
among the citizens in proportion to their ratable property.[364] We hear of
such a tax levied for ransoming the city from the Gauls[365] and another for

the building of a wall;[366] but the most common use was for the payment of
soldiers, hence the tributum was thought of primarily as a war tax.[367] For
this reason tributum came to be correlative with stipendium.[368] It was not
often imposed before the introduction of pay in 406.[369] Even then it was
not levied every year; it was sometimes refunded when the condition of the
treasury permitted; and it fell into disuse after 167.[370] As it was imposed
on those only who were liable to military duty,[371] the tribe lists were
followed in its collection, and in this sense we may say that it was collected
tributim.[372] The work was done by state functionaries, as the tribe, so far
as we know, had neither fiscal officers[373] nor a treasury; and possessing no
property, it could not be held financially responsible.
An epoch in the history of the tribes was made in 312 by Appius
Claudius Caecus the censor, who enrolled the landless citizens, proletarians
as well as aerarii, in the existing thirty-three tribes without discrimination.
[374]
Cives sine suffragio were alone excepted.[375] By giving the landless
the upper hand in the assemblies this measure roused the animosity of the
proprietors, and thus endangered the peace of the state. In order to soothe
the excited feelings of the better class, Q. Fabius Rullianus, censor in 304,
supported by his colleague Decius, removed the landless from the rural
tribes; but not to deprive them wholly of tribal privileges, he registered
them in the four urban tribes. Hence his measure is spoken of as a
compromise. Thereafter the landholding and hence more respectable
citizens were preferably enrolled in the rural tribes,[376] whereas the
landless were confined to those of the city.[377] It was a permanent gain that
henceforth tribal membership was a test of perfect citizenship. The censors
still had the power to transfer a man from one tribe to another, for instance,
from a rural to an urban tribe; but they could not exclude him wholly from
the tribes, for that would be tantamount to depriving him of the citizenship.
[378]
There were still aerarii; individuals and sometimes large groups of
citizens were still assigned as a punishment to this class, which, however,
was henceforth included in the tribes of the city.[379] Although the ordinary
urban tribesmen were usually exempt from military duty, the aerarii were
required to serve, at times under especially hard conditions,[380] and were
not disqualified for office.[381] In registering them in the tribes Claudius
made them, like the landowners, liable to military service and to the

tributum according to their means. To effect this object he necessarily
assessed their personal property on a money valuation; and in order to treat
all tribesmen alike, he must have changed the terms of valuation of the
landholders’ estates from iugera to money.[382]

Niebuhr, B. G., Römische Geschichte, i. 422-50, Eng. 200-12; Schwegler, Römische Geschichte, I.
bk. xvii; Huschke, Ph. E., Verfassung des Königs Servius Tullius, ch. iii; Ihne, W., History of Rome, i.
62, 114; Nissen, H., Templum, 144 ff.; Italische Landeskunde, ii. 503 f.; Beloch, J., Italischer Bund
unter Roms Hegemonie, ch. ii; Soltau, W., Altröm. Volksversammlungen, 375-548; Meyer, E.,
Ursprung des Tribunats und die Gemeinde der vier Tribus, in Hermes, xxx (1895). 1-24;
controverted by Sp. Vassis, in Athena, ix (1897). 470-2; Neumann, K. J., Grundherrschaft der röm.
Republik; Siebert, W., Ueber Appius Claudius Caecus; Mommsen, Th., History of Rome, bk. I. ch. vi;
Röm. Tribus; Röm. Staatsrecht, iii. 161-98; Abriss des röm. Staatsrechts, 28-36; Marquardt, J., Röm.
Staatsv. ii. 149-80; Willems, P., Droit public Romain, 40 ff., 98 ff.; Mispoulet, J. B., Institutions
politiques des Romains, i. 37-42; Études d’institutions Romaines, 3-48; Lange, L., Röm. Altertümer,
i. 501-22, and see index s. Tribus; Madvig, J. N., Verfassung und Verwaltung des röm. Staates, i. 100-
8; Herzog, E., Geschichte und System der röm. Staatsverfassung, i. 39, 101 ff., 1016-31; Grotefend,
C. L., Imperium romanum tributim descriptum; Kubitschek, J. W., De romanorum tribuum origine ac
propogatione; Imperium romanum tributim discriptum; Pauly-Wissowa, Real-Encycl. i. 674-6:
Aerarius (Kubitschek); 682-4: Aes equestre (idem); 780-93: Ager (idem); iii. 1281-3: Caere (Hülsen);
2650 f.: Claudia (Wissowa); iv. 117 f.: Clustumina (Kubitschek); Daremberg et Saglio, Dict. i. 125:
Aes equestre and hordearium (Humbert).

CHAPTER IV
THE CENTURIES AND THE CLASSES

The ancient authorities represent Servius Tullius as the founder of an
organization at once military and political—on the one hand the army
composed of classes and centuries, and on the other the comitia centuriata.
According to Livy[383]—

“From those whose rating was 100,000 asses or more he made 80
centuries, 40 of seniors and 40 of juniors, and termed them all the
first class. The seniors were to be ready for guarding the city and the
juniors were to serve in the field. The arms required of them were a
helmet, round shield, greaves, and cuirass,—all bronze,—for the
protection of the body. Their offensive weapons were a spear and a
sword. To this class were added two centuries of sappers who were
to serve without arms. Their duty was to convey the engines of war.
The second class was made up of those whose rating was between
75,000 and 100,000 asses, 20 centuries of seniors and juniors
together. They were equipped with an oblong shield (scutum)
instead of a round one, and they lacked the cuirass, but in all other
respects their arms were the same. The minimal rating of the third
class was 50,000 asses, and the number of centuries was the same
with the same distinction of age, and there was no change in arms
excepting that greaves were not required. In the fourth were those
appraised at 25,000 asses. They had the same number of centuries
but their arms were changed, nothing being assigned them but a
spear and a long javelin. The fifth class was larger, composed of 30
centuries. They carried slings and stones for throwing. Among them
were counted the accensi, the hornblowers, and the trumpeters, 3
centuries. This class was appraised at 11,000 asses. Those whose
rating was less formed one century exempt from military service.
Having thus armed and organized the infantry, he levied 12
centuries of equites from among the chief men of the state. Also the
3 centuries instituted by Romulus he made into 6 others of the same
names as those under which the three had originally been

inaugurated.” Afterward Livy speaks of the votes of the centuries in
the comitia.

The ultimate source of this description, as well as of the similar account
given by Dionysius, is the censorial document already mentioned,[384]
sometimes termed the “discriptio centuriarum,”[385] sometimes
“Commentarii Servi Tullii”[386] on the supposition that Servius was the
author. In reality it belonged to the Censoriae Tabulae[387] of the period
immediately following 269.[388] The document gave a list of the classes,
centuries, and ratings, and furnished directions for holding the centuriate
assembly. As the military divisions and equipments mentioned by Livy in
the passage above had been discarded long before this date,[389] they could
not have been described in the document. The account of them found in our
sources must, therefore, have been supplied by antiquarian study.[390] The
annalist who first used these Tabulae in the censorial archives was Fabius
Pictor.[391] Whether Livy and Dionysius derived their account directly from
him or through a later annalist cannot be determined.[392] Though Cicero’s
source may ultimately have been the same, he seems to have depended
largely on his memory and is chronologically, though not in substance, less
exact. In assigning seventy rather than eighty centuries to the first class he
most probably has in mind a stage of transition from the earlier to the
reformed organization.[393]
A brief analysis of this description, as presented by Livy or Dionysius,
will prove that it could not apply at the same time to an army and a political
assembly: (1) The century of proletarians, which formed a part of the
comitia, and which according to Dionysius was larger than all the rest
together, was exempt from military service.[394] (2) The unarmed
supernumeraries termed accensi velati must in their military function have
lacked the centuriate organization, as will hereafter be made clear.[395] (3)
The musicians and the skilled workmen who accompanied the army must
also be eliminated from the centuriate organization of the army.[396] (4) The
seniors, too, lacked the centuriate military organization.[397] (5) Thus the
only pedites in the original centuriate system were the juniors. Even the
military century of juniors was not in the beginning strictly identical with a

voting century; and as time progressed, the one group diverged more and
more widely from the other.[398]
Chiefly from these facts, which will become clear in the course of this
study, we are warranted in concluding that the army was at no time identical
with the comitia centuriata. As one was necessarily an outgrowth of the
other, the military organization must have been the earlier. If therefore the
original form of the centuriate system is to be referred to Servius Tullius, he
will be considered the organizer of the phalanx, which the military centuries
constituted,[399] not of the comitia.[400] This result harmonizes with the view
of the ancient writers that the comitia centuriata exercised no functions—
hence we have a right to infer that it had no existence—before the
beginning of the republic.[401]
The following sketch of the development of the Roman military system
from the earliest times to the institution of the manipular legion includes
those features only which are essential to an understanding of the origin and
early character of the centuriate assembly. The view maintained in this
volume is, as suggested in the preceding paragraph, that the comitia
centuriata in the form described by Livy and Dionysius developed from the
early republican military organization, which was itself the result of a
gradual growth. Reference is made to equipments chiefly for the purpose of
throwing light on the relation of the Roman to the Greek organization and
of the various Roman military divisions to one another.

I. The Primitive Graeco-Italic Army and the Origin of the Phalanx

Recent research has brought to light a period of Italian history during
which the military system of the Latins and Etruscans closely resembled
that of the Mycenaeans, the former doubtless being derived in large part
from the latter.[402] The nobleman,[403] equipped in heavy armor, rode forth
in his chariot[404] to challenge his peer among the enemy to personal
combat. The mass of common footmen were probably grouped in tribes and
curiae (Greek phratries, brotherhoods),[405] as in Homeric Greece[406] and
among the early Europeans[407] before the development of an organization
based on a numerical system. The arms of the footmen must have been
lighter, and probably varied with the individual’s financial resources. These

common troops could have had no special training or discipline, as they
counted for little in war.[408] Yet in the Homeric age of Greece some attempt
was made to keep the fighters in line, and to prevent the champions from
advancing beyond it to single combat.[409] A similar tendency to even,
rhythmic movement may be inferred for the Latin army.[410] The great
innovators in this direction were the Lacedaemonians, to whom the honor
of inventing the phalanx is chiefly due.[411] This improvement, which made
an epoch in European warfare, could not have been later than the eighth
century b.c. The phalanx was a line, several ranks deep, of heavy-armed
warriors, who moved as a unit to the sound of music.[412] The depth varied
as the occasion demanded; it was not necessarily uniform throughout the
line, but for Lacedaemon eight may be considered normal.[413] The heavy-
armed trooper carried a large shield, which covered the entire body, a
helmet, and greaves; his offensive weapons were sword and spear.[414]
Tyrtaeus mentions also a coat of mail though not as an essential part of the
equipment.[415] The metal of their defensive armor was mostly bronze; their
swords and spear-points were probably iron, which the mines of Laconia
abundantly supplied.[416] Although it is well known that the phalanx was
composed of smaller units, the original organization can only be
conjectured. It is not unlikely that in the beginning there were tribal
regiments,[417] divided into companies of fifty or perhaps a hundred,[418]
which were made up of still smaller groups. The military age extended from
the twentieth to the sixtieth year.[419]
The phalanx was readily adopted by other Greek states, which modified
it to suit their several conditions. In Athens and probably elsewhere the
army had a tribal organization,[420] but a census was introduced in order to
determine who possessed sufficient wealth for service on horseback, in the
heavy infantry, and in the light infantry; and when once the census classes
were adopted, it was easy to extend them to political uses. In this way the
four property classes at Athens, probably instituted about the middle of the
seventh century b.c.,[421] became under Solon if not earlier a basis for the
distribution of offices and other political privileges. Naturally the Greeks of
Sicily and Italy adopted the phalanx, and it is reasonable to suppose that the
Romans derived it, through the Etruscans,[422] from one of these neighbors.

II. The Servian Army

As the heavy troops of the Greek line were all armed alike, the Romans
probably at first composed their phalanx in a similar way, without
gradations of equipment. The complex system of census groupings in the
army as we find it immediately before the institution of the manipular
legion could only have resulted from a long development. The statement
last made finds justification in the fact that the term classis[423] was
originally limited to the first or highest census group, all the rest being
“infra classem.”[424]
Not only was the organization like that of the Greeks, but the arms, too,
were in the main Greek. The soldiers of the classis were equipped with
helmet, shield, greaves, spear, and sword; as they wore a cuirass, they used
a large round Etruscan buckler[425] instead of the man-covering Dorian
shield. They were grouped in centuries,[426] forty of which composed the
classis in the fully developed phalanx.[427] The age of service of the juniors,
who alone fought in the field, extended from the completed seventeenth to
the completed forty-sixth year,[428] whereas the seniors from the forty-
seventh to the sixtieth year formed a reserve.
A still nearer connection can be found between the Roman and the Greek
horsemen. As is proved by archaeology, the earliest Greek knights had no
specialized weapons or armor and were not accustomed to fight on
horseback, but were heavy infantry who used their horses simply as
conveyance.[429] The same is true of the earliest Roman equites, whose
equipment closely resembled that of the Greek horsemen. On account of
their swiftness they were primitively called celeres.[430] Although these
mounted footmen are generally known as equites, which in this sense may
but loosely be translated knights, the Romans did not institute a true cavalry
till the period of the Samnite wars.[431] It is a curious fact that some
horsemen, Roman as well as Greek, were provided each with two horses,
[432]
one for the warrior and the other for his squire,[433] and that the
mounted soldiers of Etruria were in these respects the same.[434] A further
resemblance between the earliest Greek and Roman horsemen lies in the
fact that they were noble.[435]

In their account of the growth of the mounted service during the regal
period the ancient authorities show great inconsistencies. It seems probable
that the early annalists pictured the increase in the knights in a way
analogous to that of the senate: at first Romulus formed a troop, or century,
from the Ramnes; afterward a second was added from the Tities; and still
later the Luceres furnished a third.[436] Then Tarquinius Priscus doubled the
number, making six in all, and Servius finally increased it to eighteen
centuries. This simple development, itself a reconstruction, was
complicated by the desire of the historians to make the number of knights
under Servius agree with the number under Augustus, given by
Dionysius[437] at about 5000; hence the assumption of 200 or even 300
knights to the century as early as the reign of Romulus.[438] It is possible by
clearing away these evident misconceptions to discover the approximate
truth.
When the chariot gave way to the horseback rider is not definitely
known; at all events the change seems to have taken place under Hellenic
influence, and could hardly therefore have been earlier than the beginning
of the seventh century b.c.[439] The idea of the sources is that there came to
be three troops of horsemen, furnished by the tribes,[440] as well as three
regiments of foot, that before Servius the number of troops of horse was
doubled, and that the six troops thus formed were named accordingly after
the tribes Ramnenses, Titienses, and Lucerenses priores and posteriores
respectively.[441] The priores had each two horses, the posteriores one.[442]
Hence the essential difference between these divisions was in rank and
wealth rather than in the relative time of their institution. Long after Servius
both divisions continued to be patrician.[443] As the centuriate organization
of Servius applied to the infantry, the cavalry remained little affected by it.
The six troops with their old names survived, and eventually became a part
of the comitia centuriata. In the military sphere, however, the troop no
longer retained its identity; but the whole body was divided into twenty
turmae, each composed of three decuries commanded by decurions.[444]
When with the institution of the republic the phalanx was split into two
legions, ten turmae of cavalry were assigned to each legion.[445] As in
historical time the number of horsemen to a legion did not exceed 300,[446]
and as we have no reason to suppose that at an earlier period this arm of the

service was proportionally stronger, we may conclude that in the Servian
phalanx, or double legion, the number did not exceed 600.
From the foregoing discussion it appears clear that the Servian military
system rested upon a division of the citizens into four groups, closely
corresponding to the Athenian census divisions: (1) the equites priores, like
the pentacosiomedimni, (2) the equites posteriores, like the hippeis,[447] (3)
the classis, like the zeugitae, (4) the light troops infra classem, like the
thetes. The distinction between priores and posteriores rested not upon an
assessment but upon a less precise difference in wealth, whether determined
by the individual concerned or by the state we cannot know; it represented,
too, a gradation of nobility. The distinction between the knights and the
classici was one of rank; that between the classis and the soldiers infra
classem was alone determined by the census.

III. The Development of the Five Post-Servian Military Divisions on the
Basis of Census Ratings

This arrangement was by no means final. Further changes were made in
both foot and horse which were to have a bearing on the organization of the
comitia centuriata. After a time[448] two additions of men less heavily armed
than the classici were made to the phalanx, whether simultaneously or
successively cannot be determined. There were now forty centuries of
classici, and the additions comprised ten centuries each, the second less
heavily armed than the first, though they may both be considered heavy in
contrast with the light troops. Perhaps the state according to its ability made
up the deficiency in the equipment, so as to render the entire phalanx as
evenly armed as possible.[449] It numbered sixty centuries of heavy infantry,
composed of three grades which depended upon the census rating.[450] The
light troops were also grouped in two divisions on the same principle. The
first comprised ten centuries; originally the second may have contained the
same number, in which case four were afterward added to make the
fourteen known to exist in the fully developed system.[451] There were five
divisions of infantry amounting to eighty-four centuries of a hundred men
each. Undoubtedly the growth of the army to this degree of strength was
gradual, though the successive steps cannot be more minutely traced.[452]

In making the levy the military tribunes selected the soldiers from the
lists of tribesmen, taking one tribe after another as the lot determined.[453]
The early Romans must have striven to distribute the population as equally
as possible among the tribes in order to render them approximately equal in
capacity for military service. As long as this equality continued, the officials
could constitute the army of an equal number of men from each tribe. These
considerations explain the close relation in early time between the number
of tribes and of centuries as well as the suggestions offered by our sources
as to an early connection between the centuries and the tribes.[454] While
there were but twenty tribes we may suppose that the legion comprised but
4000 men, which was raised to 4200 when the twenty-first tribe was added.
In this way can we account for the number of centuries to the legion. If but
half the available military strength was required, the magistrates might draw
by lot ten tribes from which to make the levy.[455] It was an easy matter as
long as the heavy troops were limited to the classis;[456] but when two other
ratings were added, and when meantime the tribes must have grown unlike
in population, it became practically impossible to maintain for each rating a
just proportion from the tribes;[457] and perhaps this was the chief reason for
the modification in the method of recruiting. When therefore the tribes were
increased to twenty-five, and it was deemed inexpedient to make a
corresponding enlargement of the legion,[458] a new principle was adopted
for the levy: after determining the ratio between the number of men needed
and the whole number available, the officers drew from each tribe a number
proportionate to its capacity.[459] It would agree well with all the known
facts to suppose that the addition of the second and third ratings, followed
by a more thorough organization of the light troops, belongs to the early
republic (509-387),[460] when Rome needed all her strength in her life and
death struggle with hostile neighbors. At the same time the purchase of
armor and the increased burden of military duty would help account for the
desperate economic condition of the poorer peasants of that epoch.
The proportions of the five ratings—20-15-10-5-2½ or 2—to be
discussed hereafter,[461] suggest an explanation of their origin. It would be
reasonable to assume that the normal holding of the well-to-do citizen was a
twenty-iugera lot and that the Servian phalanx was composed of possessors
of that amount, the light-armed being their sons and others distinctly
inferior in wealth. In course of a few generations as the population grew,

with no corresponding territorial expansion or colonization or industrial
development, and with only a limited conversion of waste to arable land,
many of the lots became divided and subdivided. The result was a
weakening of the phalanx at a time when the state was in the most pressing
need of military resources. The institution of the five ratings as a basis for
the reorganization of the army was a temporary expedient for meeting the
crisis, to be superseded not long afterward by a better system founded on
military pay. In all probability the introduction of the five ratings, or at least
the beginning of the movement in that direction, should be closely
connected with the institution of the censorship in 443 or 435.[462] The
supposition would give us a sufficient reason for the creation of this new
office at that time, and the strengthening of the army would explain the
success of the Romans in the wars immediately following.
How the five ratings were arrayed in battle is unknown. If the front
counted a thousand men (milites),[463] the classis comprised four ranks
(4000), the second and third ratings one rank each, making in all six ranks
of heavy troops (6000).[464] Twenty centuries could be drawn from the two
ratings of light troops to complete the eight ranks when needed.[465] But the
Romans undoubtedly exercised the same good judgment as the
Lacedaemonians in varying their formation to suit the emergency;[466] and
for that reason it is wrong to assume the same depth for all occasions or an
even depth for any one occasion. The management of long lines one-man
deep must have been extremely difficult, if not impossible.[467] The
explanation already suggested, that the state supplied the deficiency in
equipment,[468] would greatly simplify the case, for there would then exist
no need of arraying the census groups in successive lines. Whatever may
have been the tactic arrangement, it did not continue long, for soon after the
introduction of regular pay, about 400 b.c.,[469] the distinction between the
ratings ceased to have an importance for military affairs.

IV. The Question as to the Connection of the Supernumeraries and the
Seniors with the Military Centuries

A number of supernumeraries termed accensi velati accompanied the
army. The epithet accensi proves them to have been outside the five ratings,

while velati describes them as wearing civilian dress. We are informed by
the sources that they carried water and weapons to the fighting men,
stepped into the places of the dead and wounded, and acted as servants to
the lower officers.[470] These men could not have been organized in
centuries,[471] for they were drawn up in the rear behind the light troops;
they extended along the entire breadth of the army,[472] and must have
greatly exceeded one hundred or even two hundred. The musicians,[473] too,
who accompanied the army were not grouped in two centuries, for they
were distributed throughout the army.[474] There is no reason for assuming
exactly two hundred musicians[475] or exactly two hundred workmen,[476] or
for supposing that any of the men of this description were organized in
centuries in the army. Reasoning in a similar way in regard to the seniors,
we conclude that their organization in centuries could not have belonged to
the original Servian system. A military century, as the name indicates, must
have contained a hundred men.[477] But in any static population there are
three times as many men between seventeen and forty-six as between forty-
six and sixty[478]—in Rome there were three times as many juniors as
seniors; and as the number of junior and senior centuries was equal, the
latter could have contained only about thirty-three each, on the supposition
that the whole male population between seventeen and forty-six years was
organized in centuries.
The mere fact that the senior century contained so few men suggests that
it was not a military institution. This impression is confirmed by the
information that the seniors were reserved for the defence of the city, while
the juniors took the field in active service.[479] When we reflect that even in
the early republic the seniors could not often have been called on for
defence, as the juniors were ordinarily sufficient for the purpose,[480] that
the manning of the walls did not necessarily require a division into
companies or an equipment like that for field service, and that when it was
thought expedient for the seniors to serve in centuries or cohorts, their
enrolment in these companies is especially mentioned, our conviction that
the senior centuries did not belong to the original Servian organization
grows into a certainty.[481]

V. Conclusions as to the Servian and Early Republican Organizations;
Transition to the Manipular Legion

In our search for the Servian and post-Servian schemes of military
organization we found it necessary to eliminate from the discriptio
centuriarum all the centuries of pedites with the exception of the juniors.
But even a military century of juniors could not have remained identical
with a voting century; for the former comprised a fixed number and the
same for all ratings, whereas in the comitia of historical time the centuries
varied greatly in size, many of them containing far more than a hundred
men each. In the four lower classes each century contained as many men as
the entire first class;[482] and individuals constantly shifted from one class
to another as their several properties increased or diminished.[483] It is a
mistake, therefore, to think of the army as identical with even the junior
centuries of the comitia.[484] Doubtless when the Servian army was first
introduced, its organization was made to fit actual conditions, so that all
who were liable to service found their place in it; but as the political
assembly of centuries was instituted many years afterward, the army with
its various enlargements could have kept meanwhile no more than
approximate pace with the changing population, and at no time could it
include the physically disqualified, who nevertheless had a right to vote in
the junior centuries of the political assembly. On the other hand there were
soldiers in the army too young to be in the comitia centuriata.[485]
The conclusion as to the strength of the army in the first years of the
republic, before the latter had acquired any considerable accession of
territory, corresponds closely with a moderate estimate of the population
under the conditions then existing. The area of the state was about 983
square kilometers (equivalent to 379.5 sq. mi. or 242,899 acres).[486]
Estimating the population of this agricultural community at its maximum of
sixty to the square kilometer, we should have less than 60,000 for the entire
area.[487] The number of men from seventeen to sixty, the Roman military
age, should be about thirty per cent of the population[488]—less therefore
than 18,000. If the ratio of juniors to seniors was about three to one,[489] we
should have about 13,000 juniors to 5000 seniors. But a deduction must be
made for slaves and for the physically incapacitated, leaving perhaps 9000
or 10,000 juniors and 3000 or 4000 seniors. These results are not

unreasonable. Making allowance for several hundred supernumeraries,[490]
we should then have no more than enough juniors to fill the eighty-four
centuries of foot and the six troops of horse. It is clear, therefore, that all
available forces were included in the army and that the junior centuries
could not have contained more than a hundred men each.
Even before the phalanx had thus been brought to perfection,
modifications were being made in the equipment under the influence of the
Gallic invasion.[491] The introduction of pay, about 400 b.c., as has been
said,[492] broke down the distinction of equipment based on degree of
wealth, and not long afterward, probably in the time of the Samnite wars,
the phalanx gave way to the manipular legion, which reached its full
development in the Punic wars.[493]

VI. The Five Classes and their Ratings

Though originally denoting the men of the first rating, who possessed the
fullest equipment,[494] the term classis with an explanatory adjective came
to apply to the entire army[495] or to its component parts.[496] The plural
“classes” came finally to mean the five census groups, represented by the
five timocratic gradations of the comitia centuriata. What had formerly been
the classis then came to be known as classis prima, and the “infra classem”
ratings were numbered downward second, third, fourth, and fifth. Probably
this extension in the use of the word was not made till after the
disappearance of the ratings from the army—how much later we do not
know. In a speech delivered in 169 in favor of the lex Voconia the elder
Cato more than once examined into the meaning of classicus and infra
classem.[497] A hasty inference would be that at this late date classis was
still strictly limited to the first rating. It is to be noted, however, that the
early meaning might be retained in a legal formula long after it had
disappeared from general use, that classicus certainly preserved its original
meaning notwithstanding the new development of the noun from which it is
derived, and especially that the early sense of the terms classicus and infra
classem was not generally known in 169, else Cato would not have taken
such pains to define them. We know that the ratings were termed classes in
111,[498] and from what has just been said on the Voconian law it seems

probable that the development took place long before 169. The
circumstance that in their “discriptio centuriarum” Livy and Dionysius
make no reference to the distinction between classis and infra classem
would favor the supposition that they found no such distinction in their
common source—ultimately Fabius Pictor. Hence it is not unlikely that
classis was used in its historical meaning of property class in the censorial
document from which Fabius derived his knowledge of the fully developed
comitia centuriata, and which belonged to the period immediately following
269.[499]
Before the censorship of Appius Claudius Caecus, 312, military service
within the census ratings was based on the possession of land, and the
gradations of equipment, while they lasted, must therefore have been
determined by the size of the estate reckoned in iugera.[500] Huschke[501]
rightly inferred that the number of iugera marking the lower limit of each
division must have been proportioned to the later money ratings, and
assumed accordingly 20, 15, 10, 5, 2½ or 2 iugera as the respective minimal
holdings of the five divisions. Although absolute certainty is unattainable,
most scholars accept his conclusions as probable.[502] Before the change
was made in the appraisements from amount of land to money, the census
gradations ceased to serve a military purpose. In the further discussion of
these groups reference is therefore solely to their political character,
especially as expressed in the organization of the comitia centuriata. Till the
time of Marius, however, the soldiers were ordinarily recruited from the
classes—that is, from the citizens who possessed at least the qualification of
the lowest group.[503]
The money ratings of 312 are not recorded; we know those only of the
time following 269. The ratings of the earlier date must have been in the
nominally libral asses then current. For a long time, probably down to 312,
the as remained at eleven to nine ounces in weight, then sank rapidly to
four, three, and two ounces, reaching the last-mentioned weight in or
shortly before 269. In this year or the following was legally adopted the
lighter as, weighing two ounces, or a sixth of a pound, and hence termed
sextantarian, and the heavier asses still in circulation were henceforth
reckoned as sesterces, which now became the unit of value.[504] Two and a
half sextantarian asses made a sesterce, and four sesterces made a denarius.
[505]
The as continued to be copper, whereas the sesterce and the denarius

were silver. In consequence of the use of the sextantarian as the ratings
must have been elevated to correspond with the decline of the standard; and
the result of this change is the well-known series, 100,000, 75,000, 50,000,
25,000, 11,000.[506] There can be no doubt that under the standard used in
312 the ratings were lower than those given. It is incredible that the classis
should ever have been appraised so high as 100,000 asses of ten-ounce
weight or even of the value of sesterces (5 oz.).[507] But the ratings of 312
have not been definitely ascertained. Assuming but one elevation between
the two dates and in the proportion of 4:10:: sextantarian as: heavy as or
sesterce, Mommsen[508] concludes that the appraisements of 312 were
40,000, 30,000, 20,000, 10,000, and 4400 asses respectively for the five
classes. The adjustment however may have been gradual, as was the decline
of the standard, and the former need not have corresponded exactly with the
latter. But in so far as the Romans failed to bring about this adjustment, the
censors must have found it necessary continually to advance the citizens
from the lower to the higher divisions.
The ratings mentioned above as established on the basis of the
sextantarian standard, namely 100,000, 75,000, 50,000, 25,000, and 11,000
asses for the five classes respectively, are those given by Livy.[509] Several
variations affecting the highest and lowest classes are offered by other
writers. Dionysius[510] states the appraisement of the fifth class at 12½
minae, which would be 12,500 asses. The usual explanation is that he is
dealing in round numbers without especial regard to accuracy, for which
reason Livy should be given the preference. It is doubtful however whether
Dionysius was so inexact. More probably his estimate depended ultimately
on the idea that the minimal number of iugera of the highest class was
twenty-five,[511] taken in connection with the decimal ratio between the
extreme classes—an interpretation which would help explain variations in
the rating of the highest class to be mentioned hereafter; or with less reason
we might assume that the statements of Dionysius and Livy represent
earlier and later conditions.[512] The limit of 400 drachmas given by
Polybius[513] proves a lowering of the minimal rating between 269 and the
publication of his history.[514] It may have been made in 217, when the
money system was again changed. As Polybius probably considered the
drachma, or denarius, to be worth ten asses,[515] the limit which he

mentions would be 4000 asses. Cicero states the minimal limit at 1500
asses,[516] and a still lower sum of 375, mentioned by Gellius,[517] marked
the line of division between the taxable proletarians and the capite censi,
who were exempt from taxation. As the differentiation between the two
groups last named must have been effected before 167, when the Romans
were relieved of the tributum,[518] the rating given by Cicero could not have
been later than that vouched for by Polybius. The limit of 4000 asses,
accordingly, had reference merely to military service, whereas 1500 marked
at once the political and tributary line of separation between the fifth class
and the taxable proletarians.[519] The limit of 375 asses, on the other hand,
was far below the fifth class, and had nothing to do with it.[520] The relation
of these numbers to one another may be summarized as follows: Those
assessed at 4000 or more asses belonged to the fifth class, enjoyed the
political rights of that class, and were subject to military service as well as
to taxation (tributum); those rated at 1500-4000 asses also belonged to the
fifth class, enjoyed the political rights of that class, and were subject to
taxation but exempt from military service; those rated at 375-1500 asses
were proletarians, below the fifth class but subject to taxation; those rated
below 375 asses, the capite censi, were exempt from taxation.
As regards the rating of the highest class, the elder Pliny[521] states it at
110,000 asses, which may be a copyist’s error for 100,000 or for 120,000;
the estimate of Paulus Diaconus[522] is 120,000 and of Gellius[523] 125,000.
If the manuscripts have correctly preserved these numbers, they may
represent computations based on a varying number of iugera, from twenty-
two to twenty-five[524] at the rate of 5000 asses a iugerum—a valuation
which may have been given in the original annalistic source (Fabius Pictor).
From the fact that Pliny assigns this rating to Servius as author, and that
Gellius speaks of it in the past, we must infer that it was not due to a
relatively late change. Indeed the rating must have remained unaltered to
the time of Polybius,[525] who states that those appraised at 10,000
drachmas wore the cuirass—according to Livy[526] and Dionysius,[527] the
distinctive equipment of the first class.[528] In the same age the Voconian
law, 169, provided that a man registered by the censors as worth 100,000
asses or more should not bequeath his property to a woman.[529] While
speaking in favor of the measure the elder Cato expounded the distinction

between the classici and those who were “infra classem.”[530] Strictly
following Cato’s definition, Gellius[531] explains the classici as those of the
first class in contrast with the members of the lower classes, who are infra
classem. Evidently the classici are to be identified with those rated at
100,000 asses, as given by Gaius.[532] The sum of 100,000 sesterces, in
place of asses, represented by later writers[533] as the one fixed by this law,
is due either to a late interpretation or to an amendment.[534] The minimal
qualification of the first class must therefore have continued unchanged
from 269 to the passing of the Voconian law, 169, and the composition of
the History of Polybius.[535] From the latter event to the tribuneship of
Tiberius Gracchus little time was left for an increase, which certainly the
Gracchi and their successors would take no interest in bringing about.
Further depreciation in the weight of the as, by the reduction to a half ounce
through the Papirian law of 89,[536] had no effect on the valuation, as the
standard was the silver sesterce, the as having merely the fiduciary value of
a quarter sesterce. Apart from the accounts of Livy and Dionysius already
considered, no reference is made to the valuation of the intermediate
classes, unless it be a passage in Livy[537] to the effect that freedmen
possessing country estates worth at least 30,000 sesterces were enrolled in
the rural tribes by the censors of 169, which is interpreted by Mommsen[538]
to refer to the qualification of the second class. This is true if, as has been
assumed above, the censors still reckoned two and a half asses to the
sesterce.[539]

VII. Belot’s Theory as to the Ratings

Notice must be taken of a theory proposed by Belot,[540] that at the time
of the First Punic War, owing to an economic revolution which enhanced
prices, and to the decrease in the weight of the as, the five ratings as stated
by Dionysius for the earlier period were multiplied by ten, giving for the
future 1,000,000, 750,000, 500,000, 250,000, 125,000 asses for the five
classes respectively.[541] The theory is supported with remarkable learning
and skill. There can be no doubt as to the lowering of the weight of the as or
of the economic revolution which increased prices. Large valuations of

estates such as he mentions are found in the sources. For example in 214 the
government ordered[542] that—

Those rated at 50,000- 100,000 asses should furnish one sailor.
Those rated at 100,000- 300,000 asses should furnish three sailors.
Those rated at 300,000- 1,000,000 asses should furnish five sailors.
Those rated at above 1,000,000 asses should furnish seven sailors.
Senators should furnish eight sailors.

Belot’s attempt to identify the highest of these appraisements with the
rating of the first class is unsuccessful, as will immediately appear. The
object of the order issued by the government in 214 was to provide crews
for the fleet of that year. Although the hundred and fifty ships to be
manned[543] seem to have been triremes, we may consider them
quinqueremes so as not to underestimate the number of men necessary.
Reckoning 375 men to the ship,[544] we should have 56,250 men for the
entire fleet. But according to Belot[545] there were 22,000 knights at this
time, whose census rating was 1,000,000 asses, and who accordingly would
have to furnish seven men each for the navy, which would amount to
154,000, or more than enough to man three such fleets as that of the year
under consideration. But as the knights constituted only a twelfth of the
total number of registered citizens of that period,[546] most if not all of
whom must according to Belot have been assessed at 50,000 or above, we
shall be obliged at least to double the 154,000 sailors furnished by the
knights to obtain the whole number demanded by the government. The
absurdity of the result condemns the premises. The minimal census of the
knight could not have been materially if at all above 100,000 asses,[547] and
the great mass of citizens must have been rated below that sum. Other
features of his theory need not be considered here. The truth is that the great
accumulation of wealth benefited but few; and notwithstanding the advance
in the money value of property, the mass of people remained so poor that
the state could not disturb the census ratings, however out of harmony with
the new conditions they seem to have become. No suspicion should be
thrown on the continuance of these small valuations by the circumstance
that occasionally the state compelled the wealthy to contribute to the burden
of war according to their ability, as in 214, and increased the penalties for

the crimes and misdemeanors which the rich and powerful were wont to
commit.[548]

VIII. The Post-Servian Equites

The classes, as developed after Servius, have now been considered
sufficiently for an appreciation of their relation to the comitia centuriata. It
remains to discuss from the same point of view the post-Servian alterations
in the equestrian organization.
In the earliest period when the warriors in general equipped themselves at
their own expense,[549] the equites provided their own horses. But in time as
the patricians ceased to be the only wealthy class in the community, and as
they began to lose their political advantages, their duty of keeping one or
two horses came to be felt as onerous, and some means of lightening it was
sought for. The only private property which was free from the burden of
supporting military service was that of widows and orphans. The
government determined accordingly to levy a regular contribution on this
class of estates in the interest of the equites. The eques was allowed ten
thousand asses, or one thousand denarii (aes equestre), with which to
purchase his horse or horses for the ten years of service and two thousand
asses (aes hordearium) annually for maintenance.[550] He was not paid the
money in advance, but was given security for the required sums,[551] which
were gradually to be made good from the special kind of tax here described.
When these equestrian funds were first granted cannot be absolutely
determined. Cicero[552] assigns their institution to Tarquinius Priscus,
Livy[553] to Servius, Plutarch[554] to Camillus in the year of his censorship,
377. For obvious reasons the earlier dates are suspicious, whereas the last
has the advantage of connecting the institution of these funds with the
general movement for the public support of military service. When in the
war with Veii regular military pay was introduced, the eques on account of
his more burdensome duty, perhaps too because of his higher rank, was
allowed three times the pay of the legionary.[555] It was afterward decided to
deduct the aes hordearium, probably also the aes equestre, from his pay.[556]
Meanwhile as wars were waged on an ever increasing scale, the patricians,
who were dwindling in number, could not furnish all the cavalry needed.

This want was especially felt in the struggle with Veii, whereupon wealthy
plebeian youths[557] came forward and offered to serve with their own
horses.[558] This is the first known instance of voluntary equestrian duty,
doubtless often repeated at crises during the remainder of the republican
period. In the first case at least the state provided for the keep of the horses.
The volunteers were of the same grade of wealth as the conscripts; they
were held in equal honor,[559] and most probably their years of voluntary
service were counted in with their regular duty in making up the required
number.[560] Service equo privato could also be imposed as a punishment.
The only known instance, however, was that required by the censors of 209
of the equites who had disgraced themselves at Cannae. Their horses were
taken from them, their campaigns equo publico were not counted to their
credit, but they were required to serve ten years equis privatis.[561] These
are the only instances of service with private horses mentioned in history. In
all ancient literature is no suggestion that the equites equo privato formed a
rank by themselves or were an institution.[562] It should also be said that the
injustice of furnishing some with horses and of compelling others to go to
war at their own expense, unless by way of punishment, was contrary to the
spirit of the constitution. This conclusion is supported by the elder
Pliny’s[563] definition of the military equites, which makes the public horse
an essential. From the time therefore when the state began to support the
mounted service in the way described above, the equites equis publicis
continued to be the only regular citizen horsemen.
The number of equites with public horses is approximately determined
for any time by the number of legions then enrolled. The Servian phalanx,
as has been noted,[564] consisted of two legions, which remained the normal
number through the fifth century. But in the wars with Samnium and
Pyrrhus Rome was able regularly to support four legions.[565] The military
force could not have been doubled before the incorporation of the Veientan
territory early in the fourth century;[566] most probably the enlargement
belongs to still later time. The increase in the infantry required a
corresponding enlargement of the mounted service. At least twelve hundred
equites were henceforth required for active duty. Making allowance for
reserves and ineffectives, the government raised the number of equites equo
publico to eighteen hundred. The twelve new centuries were open alike to

patricians and plebeians, whereas the old six remained for a time
exclusively patrician. This seems to have been the condition at the opening
of the first war with Carthage. During the Punic wars the number varied
greatly, sometimes reaching a total of more than five thousand in the field,
not counting reserves.[567] After the war with Hannibal the state, drained of
men and money, allowed the cavalry to dwindle.[568] Viewing this condition
with alarm, the elder Cato[569] urged that the number should be increased,
and that a minimal limit be fixed at 2200. Probably at the same time he
proposed that the legion should be strengthened. His measure must have
been adopted, for after his censorship we find the legion regularly
consisting of 5200 foot and 300 horse.[570] Under Augustus there were
times when 5000 equites[571] equo publico took part in the parade which he
revived.[572] As no reason can be found why Augustus should suddenly
increase this class, we must conclude that there were probably about 5000
equites equo publico in the late republic.
As long as the cavalry remained exclusively patrician, a census
qualification was precluded. Though Cicero and Livy refer the equestrian
census to Servius Tullius, their vagueness on this point shows that they
lacked definite information.[573] It must have been introduced at the time
when the patriciate ceased to be an essential qualification, when the levy
came to be made on the basis of wealth rather than of blood. This change
should be assigned to the early part of the fourth century b.c.[574] For a time
the census was that of the first class.[575] In 214 it was still 100,000 asses, or
not much above, as has already been proved.[576] In the late republic and
under the emperors the minimal rating was 400,000 sesterces.[577] When it
was raised to this amount is unknown.

I. The Early Graeco-Italian Phalanx: Busolt, Griechische Geschichte, i, ii (see Contents);
Bauer, A., Griechische Kriegsaltertümer; Droysen, H., Kriegsalterthümer der Griechen, in
Hermann’s Lehrb. der griech. Antiquitäten, ii. 1-74; Gilbert, Constitutional Antiquities of Sparta and
Athens (see Index and Contents); Lammert, E., Geschichtliche Entwickelung der griech. Taktik, in N.
Jahrb. f. kl. Alt. iii (1899). 1-29; Die neuesten Forschungen auf antiken Schlachtfeldern im
Griechenland, in N. Jahrb. f. d. kl. Philol. xiii (1904). 195-212, 252-79, contains some matters of
interest for the present subject, though it treats mainly of the time after Alexander; Fröhlich, F.,
Beiträge zur Kriegsführung und Kriegskunst der Römer zur Zeit der Republik; Schiller, Röm.
Kriegsaltertümer, in Müller’s Hdb. d. kl. Altwiss. iv. 707 ff.; on earlier literature, 714 f., 728 f., 733,
737, 741, 744; Leinveber, A., Die Legion von Livius, in Philol. lxi. N. F. xv (1902). 32-41, a specialist
in military science; Nitzsch, K. W., Das Verhältniss von Heer und Staat in der röm. Republik, in Hist.
Zeitschr. vii (1862). 133-58; Liers, H., Kriegswesen der Alten; Delbrück, Geschichte der Kriegskunst

im Rahmen der politischen Geschichte, bks. i, iv, best authority; Die römische Manipulartaktik, in
Hist. Zeitschr. N. F. xv (1884). 239-64; Niese, B., Ueber Wehrverfassung, Dienstpflicht, und
Heerwesen Griechenlands, ibid, xcviii (1907). 263-301, 473-506; Arnim, H., Ineditum Vaticanum, in
Hermes, xxvii (1892). 118-30, the portion of Greek text used is on p. 121; Wendling, E., Zu
Posidonius und Varro, in Hermes, xxviii (1893). 335-53, on the source of the Ined Vat.; Bruncke, H.,
in N. Philol. Rundschau (1888) 40-4; Müller-Deecke, Etrusker, i. 364-72; Müller, J. J., Studien zur
röm. Verfassungsgeschichte, in Philol. xxxiv (1876). 96-136; Helbig, Sur les attributs des saliens, in
Mémoires de l’académie des inscriptions et belles-lettres, xxxvii² (1905). 205-76; on the same
subject, in Comptes rendus de l’acad. etc. 1904. ii. 206-12.
II. The Military and Political Centuries and Classes: Niebuhr, B. G., Röm. Geschichte, i. 451-
511, Eng. 197-236; Schwegler, Röm. Geschichte, I. bk. xvii; Huschke, Ph. E., Verfassung des Königs
Servius Tullius, especially chs. iv, vii, viii; Peter, C., Epochen der Verfassungsgeschichte der röm.
Republik; Studien zur röm. Geschichte, controverts Mommsen’s view as to the military character of
the Servian institutions; Mommsen, History of Rome, bk. I. ch. vi; De apparitoribus magistratuum
romanorum, in Rhein. Mus. N. F. vi (1846). 1-57, includes some account of the accensi; Röm. Tribus,
59-72, 121-143, 160 ff.; Röm. Staatsr. iii. 240 ff.; Röm. Forschungen, i. 134-40; Willems, P., Droit
public Rom. 40, 43, 84-92; Mispoulet, J. B., Institutions politiques des Romains, i. 203-7; Lange, L.,
Röm. Altertümer, i. 522-66; Cicero über die servianische Centurienverfassung, in Kleine Schriften, i.
227-234; Herzog, Geschichte und System der röm. Staatsverfassung, i. 37-43, 1066 f.; Ihne, W.,
History of Rome, bk. I. ch. vii; Early Rome, 51-4, 79, 132-9; Entstehung der servianischen
Verfassung, in Symbola Philologorum Bonnensium (1864-1867). 629-44; Breda, Die
Centurienverfassung des Servius Tullius; Genz, H., Servianische Centurien-Verfassung; Soltau, W.,
Altröm. Volksversammlungen, 229-96; Ullrich, J., Centuriatcomitien; Le Tellier, M., L’Organisation
centuriate et les comices par centuries, ch. i; Hallays, A., Les comices à Rome; Morlot, É., Les
comices électoraux, ch. iii; Moye, M., Élections politiques sous la république Rom. chs. iii, iv, vii;
Müller, ibid.; Neumann, K. J., Grundherrschaft der röm. Republik, die Bauernbefreiung, und die
Entstehung der servianischen Verfassung, speculative but very suggestive; Greenidge, A. H. J.,
Roman Public Life, 65-76; Legal Procedure of Cicero’s Time, 307 ff.; Schott, P. O., Röm. Geschichte
im Lichte der neuesten Forschungen; Smith, F., Röm. Timokratie; Pardon, De aerariis; Maue, H., Der
praefectus fabrum; Bloch, A., Le praefectus Fabrum, pt. ii, in Musée Belge, ix (1905). 352-78;
Babelon, E., Monnaies de la république Rom. I. pts. i, ii; Traité des monnaies Grecq. et Rom. i;
Origines de la monnaie; Samwer-Bahrfeldt, Geschichte des alten röm. Münzwesens; Hill, G. F.,
Greek and Roman Coins, 45-9; Regling, Zum älteren röm. und ital. Münzen, in Klio, vi (1906). 489-
524; Belot, É., De la révolution économique et monétaire ... à Rome; articles in Pauly-Wissowa,
Real-Encycl.: Accensi, i. 135-7 (Kubitschek); Adscriptivi, i. 422 (Cichorius); Adsiduus, i. 426
(Kubitschek); Aerarius, i. 674-6 (idem); As, ii. 1499-1513 (idem); Capite censi, iii. 1521-3 (Kübler);
Census, iii. 1914-24 (Kubitschek); Centuria, iii. 1952-62 (Kübler, Domazewski, Kubitschek);
Classis, iii. 2630-32 (Kübler); Collegium, iv. 380-480 (Kornemann); Comitia, iv. 679-715
(Liebenam); Cornicines, iv. 1602 f. (Fiebiger); Denarius, v. 202-15 (Hultsch); articles in Daremberg
et Saglio, Dict.: Accensus, i. 16 ff. (Humbert and others); As, i. 454-64 (Lenormant); Census, ii.
1003-17 (Humbert); Centuria, ii. 1017 (idem); Classis, i. 1224 f. (idem); Comices centuriates, s.
Comitia, ii. 1378 ff. (idem); articles in Ruggiero, E., Dizionario epigrafico: Accensus, i. 18-21;
Aerarius, i. 311-3; Aes, i. 313 f.; Centuria, ii. 183-9; Censor, ii. 157 ff.; Census, ii. 174-7;
Cornicines, ii. 1213-6; Fabri, iii. 4-18 (Libenam); Olcott, Thes. ling. lat. ep. i. 51: Accensus; Pais, E.,
Ancient Legends of Roman History, ch. vii.
III. The Equites: Niebuhr, ibid. i. 415-22, Eng. 197-200; Schwegler, ibid. i. 756-60; Lange, Röm.
Alt. i. 444-7, 523, 547-51; Recension über K. Niemeyer, De equitibus romanis commentatio historica,
in Kleine Schriften, i. 113-37; Mommsen, Röm. Staatsr. ii. 397-400; iii. 106-9, 253-62; Madvig, J. N.,
Verfassung und Verwaltung des röm. Staates, i. 155-82; Mispoulet, J. B., Études d’institutions Rom.

151-226; Bloch, G., Origines du sénat Rom. 46-95; Marquardt, J., Historiae equitum romanorum
libri iv; Gomont, M. H., Chevaliers Rom. depuis Romulus jusqu’à Galba; Niemeyer, K., De equitibus
romanis commentatio historica; Rubino, J., Ueber das Verhältniss der VI Suffragia zur röm.
Ritterschaft, in Zeitschr. f. d. Altertumswiss. iv (1846). 212-39; Bertolini, C. I., I celeres ed il tribunus
celerum; Belot, É., Histoire des chevaliers Rom. 2 vols.; Gerathewohl, H., Die Reiter und die
Rittercenturien zur Zeit der röm. Republik, valuable; Kubitschek, J. W., Aes equestre, in Pauly-
Wissowa, Real-Encycl. i. 682-4; Kübler, Equites Romani, ibid. vi. 272-312; Martin, A., Equites
(Greek), in Daremberg et Saglio, Dict. ii. 752-71; Cagnat, R., Equites (Roman), ibid. ii. 771-89;
Helbig, W., Observations sur les ἱππεῖς Athéniens, in Comptes rendus de l’académie des inscriptions
et belles-lettres, 1900. 516-22; Les ἱππεῖς Athéniens, in Mémoires de l’acad. etc. xxxvii¹ (1904). 157-
264; Die ἱππεῖς und ihre Knappen, in Jahreshefte des österr. archäol instituts, viii. 2. 185-202;
Peterson, E., Zu Helbigs ἱππεῖς, etc., ibid., 125 f.; Helbig, Zur Geschichte des röm. Equitatus, A. Die
Equites als berittene Hopliten, in Abhdl. d. bayer. Akad. d. Wiss. xxiii (1905). 267-317; Die Castores
als Schutzgötter des röm. Equitatus, in Hermes, xl (1905). 101-15; Contribution à l’histoire de
l’equitatus, in Comptes rendus de l’acad. des inscriptions et belles-lettres, 1904. ii. 190-201;
Pellegrini, G., Fregi arcaici etruschi in terracotta, etc., in Milani, L. A., Studi e materiali archeol. e
numis. i. 87-118.

CHAPTER V
THE AUSPICES

I. Auspicia Privata

Auspices (auspicia) were signs sent by the gods through which they
declared their will to men. Those given in answer to prayer were
impetrativa (or impetrita), those sent unasked oblativa. The first were
necessarily favorable; the second might be either favorable or the contrary.
[578]
To take or to hold auspices was to seek such signs in due form.
Auspicia, or the singular auspicium, also designated the right or the power
to perform the function. They were not a means of prophecy of future
events but of ascertaining whether the deity approved a proposed action.
[579]
With reference to their object and to the persons qualified to take them,
they were of two kinds, private and public. Whereas the public auspices,
taken in behalf of the state, belonged exclusively to magistrates, the private
were open to all;[580] and in early times a Roman always resorted to them
before beginning any important business.[581] Though it was permissible to
consult any deity,[582] the greatest weight attached to the approval of the
supreme god Jupiter.[583]
The plebeians, who as long as they were excluded from the magistracies
were necessarily debarred from the auspicia publica, enjoyed equally with
the patricians all private rights of religion; in fact if the nobles had wished,
they possessed no legal means of preventing the holding of auspices or the
performance of any other sacred rite in private plebeian houses. Not only is
it stated that all had a right to auspicate,[584] but the formula for summoning
troops given by Cincius[585] implies that the soldiers, who were mainly
plebeian, were accustomed to perform the rite. We find accordingly the
elder Cato, a plebeian, attending to the ceremony in his own home.[586] The
patricians, however, who believed themselves to be nearer and dearer to the
gods than were the plebeians, and who in their struggle to keep themselves
a closed caste and the offices barred against the lower social class, declared
that conubium if granted would disturb the private as well as public
auspices.[587] But this assertion need not signify that the plebeians had no

private auspices, it might indicate merely a difference between the plebeian
and patrician ceremonies, naturally implying the superiority of the latter.
Again when on a certain occasion according to Livy a tribune of the plebs
inquired of a patrician why a plebeian could not be made consul, the reply
was that no plebeian had the auspices, reiterating that the decemvirs had
forbidden conubium to prevent the disturbance of the ceremony by
uncertainty of birth.[588] Reference might here be simply to the auspicia
publica, with which alone the consul was concerned. However this may be,
the patrician claim was indignantly repudiated by the plebeians, and the
historian can say no more than that it was “perhaps true.” Another passage
from Livy usually interpreted in support of the theory that the patricians
alone had private auspices represents them, before the opening of the
offices to the commons, as saying, “So peculiar to us are the auspices that
not only the patrician magistrates whom the people choose are elected
under the auspices, but we ourselves under the sanction of the same rite
without a vote of the people appoint the interrex, and we as private persons
hold auspices, which they do not hold even as magistrates.”[589] This
passage is perfectly intelligible to one who bears in mind that in the late
republic private auspices had disappeared,[590] and that therefore when the
word auspicia is used without qualification by a late republican or imperial
writer, it always has reference to the public ceremonies.[591] In the quotation
just given, accordingly, nothing more is meant than that the patricians, who
have the exclusive right to the offices, are alone competent to perform the
public religious ceremonies which belong to the magistrates. Reference in
the quotation to the auspices of private persons signifies that when there
was no magistrate competent to hold the election of consuls, the public
auspices returned to the senate, the patrician members of which proceeded
under auspication to appoint an interrex for holding the elections. In this
case the senatorial patricians, it was asserted, attended to the ceremony not
as magistrates but as private persons, though the rites were themselves
public. As distinguished from magistrates, the senators were privati. It was
not, then, as mere citizens but as patrician members of the senate that they
performed the rite. Further light is thrown on this subject by the fact that in
the agitation for the opening of the augural and pontifical colleges to the
plebeians in 300, the patricians repeated the assertion that with them alone
were auspices, they alone had family (gens), they alone possessed true

imperium and auspicium in peace and war.[592] This claim they had the
effrontery to make despite the fact that plebeian consuls had been taking
public auspices for more than sixty years. In the pride of their blood they
claimed that theirs alone were strictly legal (iustum). Notwithstanding such
partisan assertions the facts thus far adduced lead unmistakably to the
conclusion that the plebeians equally with the patricians enjoyed the right to
private auspices.[593]

II. Auspicia Publica Impetrativa

The right to public auspices belonged primarily to patrician
magistracies[594]—those which in the early republic were filled only by
patricians, but which continued to be called patrician after they were open
to plebeians. All elections and appointments to such offices were
auspicated;[595] and their incumbents were expected to seek the previous
approval of Jupiter for every important act of their administration.[596] The
king, interrex, dictator, consuls, praetors, and censors had the auspicia
maxima; the others the minora.[597] The praetor, as colleague of the consuls,
was elected under the same auspices with them, that is, in the same meeting
of the assembly, whereas the censors, not being colleagues of the consuls,
were elected under different auspices. Between magistrates who were not
colleagues there could be no collision in the auspicia impetrativa; those of
the censors neither strengthened nor vitiated those of the consuls or
praetors, nor were strengthened or vitiated by them. In case of a conflict
between colleagues, the greater auspices annulled the lesser, and equal
auspices annulled each other.[598] For the exercise of a function properly
belonging to a magistracy, the incumbent performed the ceremony at his
own will and pleasure, unless expressly forbidden by a superior;[599] but
one who undertook a deputed duty had to ask the auspicium of a magistrate
who was competent to perform the duty in his own right. Thus the quaestor,
who was not qualified by right of his office to call the comitia centuriata,
found it necessary to do so in his capital prosecutions. In such a case he
asked of the praetor or consul the right to hold auspices for summoning this
assembly.[600] Whether the pontifex maximus held auspices in his own
name, or was obliged, like the quaestor, to apply for them to a higher
secular official, is unknown; at all events it was necessary for him to

auspicate the comitia calata, over which he presided.[601] It seems probable
that the tribunes originally did not have the right as they were not
magistrates; but when they came to be so considered, they acquired the
auspicium. All magistrates—necessarily including the tribunes—who
convoked the senate had previously to perform the ceremony;[602]
Cicero[603] seems to include the tribunes among the magistrates who had the
auspicium; and as further proof the very expression “patriciorum
(magistratuum) auspicia”[604] used by Messala implies the existence of
“plebeiorum magistratuum auspicia.” It was not the custom of the tribunes,
however, to auspicate their assemblies of the plebs.[605]
For assistance in auspication the magistrate summoned any person he
pleased, who was rarely if ever a public augur.[606] An augur,[607] whether
private or official, was a person who knew how to hold and to interpret
auspices.[608] A college of public augurs[609] for the service of the state was
established in the most primitive times. Probably comprising three
members, one from each tribe, it was gradually increased till under Sulla it
reached fifteen.[610] The members of the college were neither
magistrates[611] nor prophets. They were rather the wise,[612]
experienced[613] keepers and expounders of a sacred science and art[614]—
the “interpreters of Jupiter All-Great and Good.”[615] Having to do with
religion, they were sacerdotes, like the pontiffs, though not offerers of
sacrifice (flamines).[616] The functions which they exercised independently
of the magistrates included the inauguration of religious officials
(inaugurare sacerdotes), the blessing of fields twice a year, and of the
people after the close of a war.[617] In attending to such duties (auguria)
only did they exercise their right to the auspices.[618] In a dependent though
far more influential position they acted as the professionally skilled advisers
and assistants of the magistrates in all matters of peace and war.[619] If a
magistrate was not himself an augur,[620] it was of the utmost importance to
have their service; for the science of discovering and interpreting the divine
omens was intricate, mistakes were easy, and the slightest oversight might
vitiate the whole business in hand. When in doubt as to the validity of the
ceremony, either the magistrate to whom it belonged or the senate could
refer the case to the college of augurs, which thereupon gave an opinion in
the form of a decree. The senate then acted on the matter according to its

judgment.[621] In case a law had been passed, a magistrate elected, or any
public act performed against its wishes, it could inquire of the college of
augurs whether the election or other act had been duly auspicated; and
should a defect be alleged, the senate could annul the act or request the
magistrate to resign. It required unusual courage in a man to keep himself in
office in defiance of the authority of the senate and of the religious feeling
of the whole people.[622] These considerations account for the great
importance attaching to the presence of augurs in the comitia—a subject to
be treated in another connection.[623]
The service of augurs was most needed in establishing the terrestrial
templum[624]—a carefully marked out, oriented spot which the magistrate
occupied while performing the rite.[625] Whereas the commander of an army
generally made use of chicken auspices (signa ex tripudiis), which did not
require their assistance,[626] they were doubtless always called upon to
institute templa in or near the city.[627] For the exercise of their art they
divided the world, so far as known to them, into augural districts. The
central district was the city, limited by the pomerium,[628] beyond which,
probably extending to the first milestone,[629] lay a zone termed ager
effatus,[630] whose boundaries were marked by cippi.[631] The rest of the
world within their sphere of knowledge they divided into ager Romanus,
which in its larger sense included the two districts above mentioned,
Gabinus, peregrinus, hosticus, and incertus.[632] For the comitia the two
inner regions were alone important: (1) the auspication of assemblies held
in the city had to be performed within the pomerium; (2) as often as the
magistrate in passing from the city to the Campus Martius to hold the
comitia centuriata crossed the pomerium,[633] or more strictly the brook
Petronia,[634] he was obliged to take the special auspices of crossing.
Beyond the ager effatus assemblies were not ordinarily held.
Originally the most common form of divination must have been the
watching of the flight of birds, for it is from this ceremony that the word
auspicium is derived.[635] Legend accordingly asserts that Romulus founded
the city on the Palatine under the auspices of twelve vultures.[636] Before
the end of the republic, however, all other forms of public auspicia
impetrativa in the city had given way to the caelestia, especially the

lightning and thunder.[637] The reason is that the heavenly signs could be
most easily understood and carried greatest weight; whereas other auspices
had to be held for each individual act, the celestial omens of the morning
served the magistrate for all his undertakings during the entire day.[638] The
effect of heavenly signs on assemblies of the people, however, was peculiar.
Not only were comitia and contiones interrupted by storms;[639] not only
was it impious to hold an assembly while it was lightning or thundering,
[640]
but even while the magistrate was auspicating at daybreak, if a flash of
lightning appeared on the left—a sign favorable for every other undertaking
—he dared not hold the assembly on that day.[641] Some favorable comitial
sign the magistrate was supposed to perceive,[642] but what it was we do not
know.
The general rule that the auspices should be taken for an act on the very
spot on which the magistrate intended to perform the act applied to the
comitial auspices. For meetings on the Capitoline Hill they probably used
the temple of Jupiter, dedicated for all time;[643] for assemblies in the
comitium the rostra, also a templum;[644] and for the comitia centuriata the
president’s platform in the Campus Martius.[645] Not only patrician
magistrates but also tribunes of the plebs occupied templa in transacting
business with the people.[646]
Between midnight and morning[647] on the day of assembly the
magistrate repaired to the templum.[648] There, placing himself on a
solid[649] seat at the door, usually facing eastward, he watched the heavens
(spectio). Meanwhile he first asked the attendant, who always sat near,[650]
whether there was silence.[651] If the answer was affirmative, he prayed
Jupiter for a sign, which he described in a formula termed legum dictio,[652]
whereupon the attendant declared he saw it.[653] In case of non-appearance
of the sign or of a disturbance of the observation, the auspication was
deferred to another morning.[654] Before the time of Cicero, however, the
ceremony had been so reduced to a pretence as practically to eliminate the
possibility of failure.[655]
Both curiate[656] and centuriate[657] assemblies were auspicated. Although
for the tribal assemblies the question is more difficult, it seems reasonably

certain that whereas a patrician magistrate took the auspices for the comitia
tributa,[658] plebeian magistrates (tribunes and aediles of the plebs) did not.
[659]

As to whether contiones were auspicated we are not clearly informed.
The question concerns those only which were held by patrician magistrates.
The auspication of comitia necessarily extended to the contio immediately
preceding.[660] It is known, too, that the censors auspicated the lustral
gathering of the centuries,[661] hence we may infer that magistrates and
sacerdotes were accustomed to take auspices for formal religious
assemblies.[662] With these exceptions contiones were doubtless held
without auspices by patrician as well as by plebeian magistrates.

III. Auspicia Publica Oblativa

If Jupiter had approved the holding of an assembly, the magistrate was
not for that reason necessarily done with auspices. Though the impetrativa
may have favored, prohibitive oblativa were still possible, for
circumstances might cause the god to change his mind so as to forbid what
he had previously sanctioned; and the warning omen might come at any
time before the act was completed. Sometimes the magistrate himself
discovered, or for the accomplishment of his purpose pretended to discover,
the evil omen. When for instance Pompey was holding an assembly for the
election of praetors, and Cato, a political opponent, offered himself as a
candidate, Pompey, seeing the assembly unanimous for this man, declared
that he heard a clap of thunder, and thus by an adjournment succeeded in
preventing the election.[663] Sometimes the magistrate was informed of the
omen by (1) a private person, (2) an augur, or (3) another magistrate. In the
first two cases the report was termed nuntiatio, in the third obnuntiatio.[664]
Information received from a private citizen the president could credit or not
as he saw fit, or he could declare it irrelevant;[665] but the law compelled
him to accept the nuntiatio of an augur or the obnuntiatio of another
magistrate.
Prohibitive auspicia oblativa included evil omens of all kinds. When in
310 the dictator called the curiae for passing the lex de imperio, it chanced
that the Curia Faucia was the first to vote (principium). Now this curia was

ill omened because on two earlier occasions it had happened to be
principium at a time of great national disaster. The dictator accordingly
adjourned the meeting till the following day, when he again summoned it
after renewing the auspicia impetrativa.[666] A case of epilepsy, by vitiating
the business of the assembly, required an adjournment; and for that reason
the malady was called the comitial sickness.[667] In the later republic the
chief oblativa had come to be caelestia; and it could happen that the
auspicia impetrativa of any magistrate might as oblativa vitiate the comitia
of another. For this reason when a higher magistrate was about to hold an
assembly, he forbade the taking of auspices by all inferior to him, for fear
they might annul his proceedings.[668]
Although the augurs had neither the auspicia impetrativa nor the right to
watch the sky for unfavorable omens,[669] they were competent to report
(nuntiatio) unexpected oblativa to the magistrates.[670] Their object in
attending the comitia accordingly was not only to assist the president with
their special knowledge,[671] but also to witness the religious legality of the
proceeding. In the latter function the augur derived great influence[672] from
the possibility of an investigation into such legality by the augural college
and the senate, which might result in the annulment of the act.[673] For this
reason witnessing augurs were granted the privilege of adjourning the
assembly in case they perceived unfavorable omens.[674] Cicero[675]
describes in detail such an adjournment of an electoral assembly of
centuries: “Behold the day for the election of Dolabella! The prerogative
century is drawn by lot, he (the augur) remains quiet. The vote is
announced, he is silent. The first class is called and the announcement
made. Then as usual the suffragia (of the equites?) were summoned; then
the second class is called. All this happened more quickly than I have told
it.
“When the business is over, that excellent augur says, ‘We adjourn to
another day.’ O remarkable impudence! What (omen) had you seen? What
had you felt? What had you heard?” Antony, who was both consul and
augur, presiding over the electoral assembly, allowed the voting to continue
till a majority was nearly reached in favor of Dolabella, when, making use
of the augural formula, he adjourned the meeting. This procedure was in
itself legal; but Antony had from the beginning of the year boasted of his

intention to prevent through augury this man’s election. As only
magistrates, through their right to the spectio, to be explained hereafter,
could with certainty predict an evil omen,[676] it was evident that Antony,
acting merely as augur, made a fictitious report.
Augurs were always present at meetings of the curiae,[677] of the
centuries,[678] and of the tribes under the presidency of a patrician
magistrate.[679] That they attended the meetings of the plebs as well and had
the same relation to the plebeian as to the other assemblies is necessarily
implied in Cicero’s[680] question, “What shows greater religious power than
to be able to grant or refuse to grant the right to transact business with the
people or with the plebs?”
If the person who reported the evil omen was not an augur but a
magistrate, the president was equally bound to heed it and to dismiss the
assembly;[681] and the force of the obnuntiatio was not in any way affected
by the relative official rank of the two persons concerned. When
accordingly a higher magistrate had set a day for an assembly, he forbade
all inferior magistrates not only to take the auspicia impetrativa,[682] but
also to watch the sky—de caelo servare—for any purpose on that day, for
fear that some omen unfavorable to the comitia might be seen.[683] A consul
for instance could prevent a quaestor from scanning the heavens on any
particular day; and the senate on the rare occasions when it felt itself
sufficiently strong, suspended for a particular act of the assembly the right
of all magistrates to receive and to announce unfavorable omens.[684] In the
absence of senatorial interference it remained possible for any higher
magistrate to scan the heavens—de caelo servare—on an assembly day
appointed by another, and to vitiate the comitia by reporting an unfavorable
omen. We find accordingly a consul obnuntiating against a colleague[685]
and against the pontifex maximus,[686] a praetor against a tribune of the
plebs,[687] and a tribune against a consul[688] or a censor,[689] as well as
against a colleague.[690]
So certain was it that a magistrate who looked for a bad omen would see
one that the expression “to watch the sky” became equivalent to discovering
an unpropitious sign. The rule was therefore formulated that “religion
forbade the transaction of any business with the people when it was known

that the sky was watched.”[691] If accordingly a magistrate announced that
he intended to scan the heavens on the day appointed for an assembly, this
declaration was in itself sufficient in the ordinary course of events to
compel a postponement. In the year 57 Milo, a tribune of the plebs, pushed
the custom to extremes by declaring his intention to observe the sky on all
comitial days.[692] Strictly the observation had to be made and reported
before the assembly met. “Can any one divine beforehand,” Cicero[693]
asks, “what defect there will be in the auspices, except the man who has
already determined to watch the heavens? This in the first place the law
forbids to be done in the time of an assembly; and if any one has been
observing the sky, he is bound to give notice of it, not after the comitia are
assembled, but before they meet.” In the case belonging to the year 57
referred to above, Milo, the tribune, came into the Campus Martius before
midnight in order to anticipate the arrival of the consul Metellus, who
wished to hold the elections. The assembly ordinarily met at sunrise, and
could not convene after midday. Milo accordingly remained on that day till
noon, without seeing the consul. Then Metellus demanded that for the
future the obnuntiatio should be served on him in the Forum; it was
unnecessary, he said, to go to the Campus before daybreak; he promised to
be in the comitium at the first hour of the day. As Milo was coming into the
Forum before sunrise on the next comitial day, he discovered Metellus
stealing hurriedly to the Campus by an unusual route. The tribune came
upon him and served the notice.[694]
The consul’s announcement of intention to watch the sky might be
strengthened by a proclamation declaring certain or all comitial days for the
remainder of the year to be holidays, on which the people could not legally
transact business in assembly.[695]
Although the obnuntiatio doubtless originated in the early republic, it
played no considerable part in political strife till after the Gracchi. A great
impetus to the abuse of the power was given by the Aelian and Fufian laws,
which were probably two plebiscites[696] passed about 150.[697] What
features of these statutes were new has not been precisely determined. It is
certain, however, that they made possible the condition in which we find the
spectio and obnuntiatio before the legislation of Clodius on the subject in
58. As the tribune did not originally have the obnuntiatio, we may infer that
in all probability these laws granted him the right to exercise it against

patrician magistrates in the way described above. Similarly from the fact
that the plebeian tribal assembly was not originally subject to religious
obstruction on the part of the government, it is reasonable to conclude that
the Aelian and Fufian statutes gave the patrician magistrates the obnuntiatio
against that body.[698] It was equivalent to a power of veto, which the
aristocracy could now exercise upon tribunician legislation, hence
Cicero[699] regards the two statutes as most holy[700] means of “weakening
and repressing the fury of the tribunes,” and as the “surest protection of the
commonwealth.”[701] Notwithstanding the opinion of Lange,[702] that the
obnuntiatio was restricted to legislation, it seems clear from the words of
Cicero,[703] as well as from the lack of reference in the sources to such a
limitation, that it applied equally to elections. So long, however, as the
nobility could depend for support upon the tribunes, it had little need of
such a power. But in the last years of the republic, after the tribunician veto
had been undermined by Ti. Gracchus and Appuleius Saturninus, and the
tribunes were again acting independently of the senate as in the early
history of their office, optimates and populares, taking full advantage of the
Aelian and Fufian laws, alike exploited the auspices recklessly for partisan
objects. Their behavior was a sign of both religious and political
disintegration. Vatinius, tribune of the plebs in 59, had the boldness utterly
to disregard these statutes;[704] and in 58 the tribune Clodius repealed them
in so far as they affected legislation,[705] whereas for elections the
obnuntiatio still remained in force.[706] The misuse of auspices for political
purposes dates back, according to Livy,[707] to the beginning of the Samnite
wars. Although this may be an anticipation of later conditions, there can be
no doubt as to the attitude of statesmen toward the custom in the closing
years of the Punic wars.[708] In the time of Clodius and Cicero, while some
maintained a sincere belief in these ceremonies, doubtless the great majority
of public men saw in their use nothing more than political chicanery
calculated, by deceiving the multitude, to keep the real power in the hands
of a few.[709]

Rubino, J., Untersuchungen über röm. Verfassung und Geschichte, 34-106; Nissen, H., Das
Templum; Mommsen, Röm. Staatsrecht, i. 76-116; Marquardt, J., Röm. Staatsverwaltung, iii. 397-
415; Lange, L., Röm. Altertümer, 3 vols, index s. Augures, Auspicia, Inauguratio, etc.; De legibus
Aelia et Fufia commentatio, in Kleine Schriften, i. 274-341; Herzog, E., Geschichte und System der
röm. Staatsverfassung, 621-30, see also index s. Augures, Auspicien; Müller-Deecke, Etrusker, ii.

114-27; Gilbert, O., Geschichte und Topographie der Stadt Rom im Altertum, 3 vols., index s.
Auguraculum, Augures; Wissowa, G., Religion und Kultus der Römer, 450-60; Augures, in Pauly-
Wissowa, Real-Encycl. ii. 2313-44; Auspicium, ibid. ii. 2580-7; Aust, E., Religion der Römer, index
s. Auguraculum, Augurn, Auspicia, etc.; Iuppiter Elicius, in Roscher, Ausführliches Lexikon der
griech. und röm. Mythologie, ii. 656-61; Bouché-Leclerq, A., Histoire de la Divination dans
Antiquité, iv. 134-285 (sources and modern literature, p. 180 f.); Augures, in Daremberg et Saglio,
Dict. i. 550-60; Auspicia, ibid. i. 580-5; Spinazzola, V., Augures, in Ruggiero, Dizionario epigrafico,
i. 778-810; Ruggiero, ibid. i. 950 f.; De Marchi, A., Il Culto privato di Roma antica, i. 152 ff., 232 ff.;
Valeton, I. M. J., De modis auspicandi Romanorum, in Mnemosyne, N. S. xvii (1889). 275-325, 418-
52; xviii. 208-64, 406-56; De iure obnuntiandi comitiis et conciliis, ibid. xix (1891). 75-113, 229-70;
De templis Romanis, ibid. xx (1892). 338-90; xxi. 62-91, 397-440; xxiii. 15-79; xxv. 93-144, 361-85;
xxvi. 1-93 (papers in the last two vols. are on the pomerium); Luterbacher, F., Der Prodigienglaube
und Prodigienstil der Römer, 2 ed.; Wülker, L., Die geschichtliche Entwickelung des
Prodigienswesens bei den Römern; Willoughby, W. W., Political Theories of the Ancient World, ch.
xv.

PART II
THE ASSEMBLIES
ORGANIZATION, PROCEDURE, AND FUNCTIONS,
RESOLUTIONS, STATUTES, AND CASES

CHAPTER VI
COMITIA AND CONCILIUM

In treating of the distinction between comitia and concilium scholars
have invariably begun with the juristic definition of Laelius Felix,[710]
quoted by Gellius,[711] “He who orders not the whole people but some part
of it to be present (in assembly) ought to proclaim not comitia but a
concilium;” they have limited themselves to illustrating this definition, and
to setting down as lax or inaccurate the many uses of the two words which
cannot be forced into line with it. The object of this discussion, on the
contrary, is to consider all the occurrences of these words in the principal
extant literature, especially prose, of the republic and of the Augustan age—
a period in which the assemblies were still in existence—for the purpose of
testing the definition of Laelius, and of establishing new definitions by
induction in case his should prove wrong.
It is convenient to begin with Livy, who though an imperial writer, and
under the stylistic influence of his age, probably adhered in the main to the
technical terminology of the republican annalists from whom he drew. The
first point which will be established is that in Livy’s usage the difference
between comitia and concilium is not a difference between the whole
people and a part of the people.[712]
The plebeian tribal assembly is termed comitia in Livy ii. 56. 1, 2; ii. 58.
1; ii. 60. 4; iii. 13. 9 (“Verginio comitia habente conlegae appellati dimisere
concilium,” in which comitia and concilium in one sentence are applied to
the same assembly); iii. 17. 4 (the comitia for passing the Terentilian law,
which from Livy’s point of view was the plebeian assembly);[713] iii. 24. 9;
iii. 30. 6; iii. 51. 8 (comitia of plebeian soldiers for electing military
tribunes and tribunes of the plebs); iii. 54. 9, 11: (plebeian comitia under the
pontifex maximus); iv. 44. 1; v. 10. 10; vi. 35. 10 (“Comitia praeter
aedilium tribunorumque plebi nulla sunt habita”); vi. 36. 9 (the comitia for
voting on the Licinian-Sextian laws); vi. 39. 5; xxv. 4. 6; xxxiv. 2. 11; xlv.
35. 7. Other examples of comitia of a part of the people are Livy ii. 64. 1 (as
the plebeians refused to participate in the consular election, the patricians
and clients held the comitia); xxvi. 2. 2 (comitia held by the soldiers, and

hence by only a part of the people, for the election of a propraetor). Still
more to the point are the comitia sacerdotum: for electing a chief pontiff,
Livy xxv. 5. 2; for electing an augur, xxxix. 45. 8; for electing a chief curio,
xxvii. 8. 1. Comitia sacerdotum were composed of seventeen tribes, and
hence of only a part of the people.[714] Lastly is to be noted the fact that the
plebeian assembly met on a comitialis dies; Livy iii. 11. 3.
It is now sufficiently established that Livy often applies the term comitia
to the assembly of plebs and to other assemblies which included but a part
of the people. It is equally true that he uses concilium to denote an assembly
of the whole people. The principal instances of Roman assemblies are:

(1) Livy i. 8. 1: “Vocataque ad concilium multitudine, quae
coalescere in populi unius corpus nulla re praeterquam legibus
poterat, iura dedit.”
(2) i. 26. 5: “Concilio populi advocato” (for the trial of Horatius).
(3) i. 36. 6: “Auguriis certe sacerdotioque augurum tantus honos
accessit, ut nihil belli domique postea nisi auspicato gereretur,
concilia populi, exercitus vocati, summa rerum, ubi aves non
admississent, dirimerentur.”
(4) ii. 7. 7: “Vocato ad concilium populo” (representing the consul
as calling the people to an assembly).
(5) iii. 71. 3: “Concilio populi a magistratibus dato” (for settling
the dispute between Ardea and Aricia).
(6) vi. 20. 11: “Concilium populi indictum est” (an assembly of
the people which condemned Marcus Manlius).

These instances are well known, and have often been discussed. It is
enough for our purpose to note here that they prove Livy’s willingness to
designate assemblies of the whole Roman people as concilia. But
Mommsen[715] was not satisfied with regarding all these cases as inaccurate.
In spite of Laelius he believed that concilium could sometimes properly
apply to assemblies of all the people. With reference to the first example
given above he says that where concilium denotes an assembly of all the
people, the contio is meant—in other words, a concilium of all the people is

an assembly which has not been summoned with a view to voting, and is
not organized in voting divisions. This new definition might explain
example (1), for possibly Livy did not think of the first Roman assembly as
voting on the laws which Romulus gave, or even as organized.
Unfortunately Mommsen tries to support his definition by example (2),
which refers to the assembly for the trial of Horatius. But in ch. 26. 12 the
same assembly, which must have been the gathering of the curiae, and
which Cicero[716] speaks of as comitia, voted the acquittal of the accused.
Hence it could not have been a mere contio. Another passage cited in
support of his view, Livy ii. 7. 7, example (4), represents the consul as
calling the people to a concilium. First he addressed them (“in contionem
escendit”), and afterward laws were passed on the subject of which he
treated in his speech—evidently by the same assembly; hence the concilium
populi here mentioned was something more than a contio. Another
illustration which Mommsen offers, but which, having to do with a Roman
assembly only by implication, is not included in the list of examples given
above, is Livy v. 43. 8: “When he had pushed into the midst of the contio,
though hitherto accustomed to keep away from such concilia.”[717] The
passage refers to a meeting of the Ardeates for consulting in regard to the
sudden approach of the Gauls. Gatherings of the kind were called concilia,
but the word contio is also introduced into the passage with reference to a
speech made in the assembly. The implication is that such concilia of all the
people for deliberation were held also at Rome. The circumstances indicate
that it met with a view also to taking action, and that it was therefore not a
simple contio. This passage accordingly offers no support to Mommsen’s
view that when applied to the whole people concilium is merely a listening,
not an acting, assembly.[718] Summing up the evidence for the new
definition of concilium, we may say that, were it true, it might apply to Livy
i. 8. 1, though it is unessential to the explanation either of this passage or of
any other. A single case, too, even if it were clear, is not a sufficient basis
for a generalization; and though we must agree with Mommsen that the
juristic definition does not cover the cases cited above, it is necessary to
reject his amendment as unsatisfactory.[719]
In fact Mommsen soon discovers cases which, from his own admission,
neither his definition nor that of Laelius will explain, for instance, Livy i.
36. 6, example (3). On this citation Mommsen[720] remarks that concilia in

this connection could not mean contiones, with which in his opinion the
auspices had nothing to do; it could not refer to the plebeian assemblies,
which he also assumes to have been free from the auspices.[721] He
concludes, therefore, that it denotes the “patricio-plebeian” tribal
assemblies.[722] But why Livy should here be thinking merely of the tribal
assemblies, especially in connection with a time before they had come into
existence, no one could possibly explain. It is far more reasonable to
assume that he intended to include all kinds of assemblies, curiate,
centuriate, and tribal, which required the auspices. The next citation which
Mommsen finds difficult is Livy iii. 71. 3, example (5)—an assembly of the
tribes meeting under the consuls to decide the dispute between Ardea and
Aricia over a piece of territory. The assembly voted (ch. 72. 6) that the land
in question belonged to the Roman people. Mommsen’s[723] explanation of
concilium in this connection is that the resolution adopted by this assembly
affected foreign states only, and was not binding on Rome; hence he
assumes that comitia are an assembly whose resolutions are binding on the
Roman state. Here then we have a third definition of concilium based like
the second on a single case. But Mommsen thinks he finds some evidence
for his last definition in the fact that assemblies of foreign states are usually
termed concilia; and he assumes the reason to be that their resolutions were
not binding on Rome. It would be strange, however, if in calling foreign
institutions by Latin names (rex, senatus, populus, plebs, praetor, dictator,
etc.) Roman writers attempted to show a connection between these
institutions and Rome, seeing that in most cases no such connection could
exist. The proposed explanation of this use of concilium becomes actually
absurd when it is extended to foreign comitia; Mommsen certainly would
not say that the resolutions of the Syracusan comitia, mentioned by Livy,
were binding on Rome.
His last and most difficult case is Livy vi. 20. 11—the concilium populi
which condemned Marcus Manlius, example (6), p. 121. Evidently this was
the centuriate assembly, which alone had the right to try capital cases, and
which alone had to meet outside the pomerium. Various feeble explanations
have been proposed; but Mommsen, with others, prefers to consider the
word wrongly used. It is true that if we accept the juristic definition, we
must conclude that Livy is guilty of error not only in this case but wherever
he applies the term concilium to an assembly of all the people, Roman or

foreign; but as we shall proceed by induction, we must, at least
provisionally, consider all the cases correct, and frame our definitions
accordingly.
We have now reviewed a number of passages in Livy in which concilium
includes all the Romans. There remains a large group of passages which
refer to foreign assemblies. In considering these cases we are to bear in
mind that the Romans apply to foreign institutions in general the Latin
terms with which they are familiar, and in the same sense in which these
terms are used of Roman institutions; in this way only could they make
themselves understood.

Concilium populi and concilia populorum are frequent (e.g. Livy
vii. 25. 5; x. 10. 11; 14. 3; xxi. 14. 1; xxiv. 37. 11), and most of the
assemblies of foreign states designated as concilia are known to
have admitted both nobles and commons.
Instances of concilia in foreign states are: Alba Longa, Livy i. 6.
1; Latins, Livy i. 50-52; vi. 10. 7; vii. 25. 5; viii. 3. 10; xxvii. 9. 2;
Aequians, Livy iii. 2. 3; ix. 45. 8; Antium, Roman colony at, Livy
iii. 10. 8; Veii, Livy v. 1. 8; Etruria, Livy v. 17. 6; x. 10. 11; 13. 3;
14. 3; Gauls, Livy v. 36. 1; xxi. 20. 1; Hernicans, Livy vi. 10. 7;
Samnites, Livy x. 12. 2; Saguntines, Livy xxi. 14. 1; Iberians, Livy
xxi. 19. 9, 11; xxix. 3. 1, 4; Enna, Livy xxiv. 37. 11; Aetolians, Livy
xxvi. 24. 1; xxvii. 29. 10; xxxi. 29. 1, 2, 8; 32. 3, 4; xxxiii. 3. 7; 12.
6: xxxiv. 41. 5; xxxv. 32. 3, 5; 33. 1, 4; 34. 2; 43. 7; xxxvi. 26. 1; 28.
7, 9; xxxviii. 9. 11; 10. 2; xlii. 6; Achaeans, Livy xxvii. 30. 6; xxxi.
25. 2; xxxii. 19. 4, 5, 9; 20. 1; 21. 2; 22. 3, 9, 12; xxxv. 25. 4; 27. 11;
48. 1; xxxvi. 31. 9, 10; 32. 9; 34. 1; 35. 7; xxxviii. 31. 1; 32. 3; 34.
5; 35. 1; xxxix. 33, 35, 36, 37, 48, 50; xli. 24; xlii. 12; xliii. 17;
Epirus, Livy xxxii. 10. 2; xlii. 38. 1: Boeotians, Livy xxxiii. 1. 7; 2.
1, 7; xxxvi. 6. 3; xlii. 43, 44, 47; Acarnanians, Livy xxxiii. 16. 3, 5,
8; xliii. 17; Thessalians, Livy xxxiv. 51. 5; xxxv. 31. 3; xxxvi. 8. 2;
xlii. 38; Argos, Livy xlii. 44; Macedonians, Livy xlv. 18.

Though most of these concilia are known to have been assemblies of the
whole people, nobles and commons, very rarely, as in Livy x. 16. 3, the
word signifies a council of a few men—in this case, of the leading men of

Etruria (cf. xxxvi. 6. 6); and twice, at Capua, we hear of a plebis concilium;
Livy xxiii. 4. 4; xxvi. 16. 9. From the frequency of the first-mentioned use
we must conclude that Livy does not hesitate to designate as concilia
assemblies of the whole people.
Comitia, on the other hand, more rarely applies to foreign assemblies. We
hear of comitia of the Veientans (Livy v. 1. 1), of the Syracusans (Livy xxiv.
23. 1; 26. 16; 27. 1), of the Argives (Livy xxxii. 25. 2), of the Boeotians
(Livy xxxiii. 27. 8), and of the Thessalians (Livy xxxiv. 51. 5).
The conclusions thus far reached are as follows:
I. As to Comitia:

1. Livy frequently uses comitia to denote the tribal assembly of
the plebs.
2. He always uses comitia to denote the assembly for the election
of priests, consisting of but seventeen tribes, and hence of a
minority of the people.

II. As to Concilium:

1. He frequently uses concilia (rarely comitia) to denote foreign
assemblies of all the people.
2. Less frequently he uses concilia to denote Roman assemblies
of all the people.

Mommsen and others admit, however, that Livy’s usage does not
conform strictly to the definition of Laelius Felix; they assume accordingly
that the exact meaning of comitia was lost in imperial times, that for the
correct usage we should look to the republican writers.
As Caesar has little occasion for employing the terms in relation to the
Roman assemblies, his usage on purely Roman grounds cannot be made
out. Foreign assemblies—that is, of Gauls—he generally designates as
concilia: B. G. i. 30, 31; iii. 18; v. 2, 6, 24, 56 f.; vi. 3, 20; vii. 63, 89; viii.
20 (Hirtius). In all these cases the concilium is a tribal or national assembly

including both nobles and commons; more rarely the word signifies a
council of chiefs; B. G. i. 33; vii. 75; and perhaps vii. 1. Once he applies
comitia to Gallic assemblies; B. G. vii. 67. So far, therefore, as his usage
can be determined, it does not differ from Livy’s. From Macrobius, Sat. i.
16. 29 (“Contra Julius Caesar XVI auspiciorum negat, nundinis contionem
advocari posse: id est cum populo agere: ideoque nundinis Romanorum
haberi comitia non posse”), it appears that in Lucius Julius Caesar’s[724]
augural language, which must certainly have been conservative, contio was
a general word including comitia. This passage, with the similar one in
Cicero, Att. iv. 3. 4, suggests that the distinctions between contio, comitia,
and concilium, far from breaking down in late republican times, were only
then taking form.
The material furnished by Sallust is more conclusive. In Hist. ii. 22,
concilium Gallorum doubtless signifies a national assembly; and although
generally comitia refers to the centuriate gathering (Cat. 24, 26; Iug. 36,
44), in Iug. 37 (“P. Lucullus and L. Annius, tribunes of the plebs, against the
efforts of their colleagues strove to prolong their office, and this dissension
put off the comitia through all the rest of the year”)[725] it clearly designates
the assembly of the plebs. His usage accordingly, which allows concilium
sometimes to apply to an assembly of the whole people and comitia to an
assembly of a part of the people, does not differ from that of Livy.
Cicero, however, is the author on whom scholars rely in support of the
definition of Laelius. Following Berns,[726] they say Cicero has violated the
rule but once, Att. i. 1. 1, in which occurs the phrase comitiis tribuniciis.
Berns’ examination of Cicero must have been exceedingly hasty, as he has
left a number of instances unnoticed. The following passage is especially to
the point, Q. Fr. ii. 14 (15 b). 4:

“The candidates for the tribuneship have made a mutual compact
—having deposited five hundred sestertia apiece with Cato, they
agree to conduct their canvass according to his direction, with the
understanding that any one offending against it is to be condemned
by him. If these comitia, then, turn out to be pure, Cato will have
been of more avail than all laws and jurors put together.”[727]

The tribunician comitia are the only comitia concerned in Cato’s
transaction. Again in Att. ii. 23. 3 (“It is of great interest to me that you
should be present at Rome, if not at the comitia for his election, at least
after he has been declared elected”)[728] Cicero is thinking of the election of
Clodius to the tribuneship, and hence the comitia he refers to are the
assembly of plebs. In Fam. viii. 4. 3, “aedilium plebis comitiis” must refer
to the plebeian assembly, in which the plebeian aediles were elected.[729]
Another important passage is Sest. 51. 109:

“I come now to the comitia whether for electing magistrates or
for enacting laws. We often see laws passed in great numbers. I say
nothing of those which are enacted in such a manner that scarcely
five of each tribe, and those not from their own tribe, voted for
them. He (Clodius) says that at the time of that ruin of the republic
he carried a law concerning me, whom he called a tyrant and the
destroyer of liberty. Who is there who will confess that he gave a
vote when this law was passed against me? But when in compliance
with the same resolution of the senate, a law was passed about me in
the comitia centuriata, who is there who does not profess that then
he was present, and that he gave a vote in favor of my safety?
Which cause, then, is the one which ought to appear popular? That
in which everything that is honorable in the city, and every age, and
every rank of men agree? Or that to the carrying of which some
excited furies fly as if hastening to a banquet on the funeral of the
republic?”[730]

The law which Cicero dwells on with such bitterness at the beginning of
this passage and recurs to at the end is the tribunician law which
pronounced on him the sentence of exile; in this connection, therefore,
comitia distinctly includes the plebeian assembly in its legislative capacity.
Even more telling is Leg. iii. 19. 44-45:

“They (our ancestors) forbade the enactment of laws regarding
particular persons except by the comitia centuriata. For when the
people are organized according to wealth, rank, and age, they use

more consideration in giving their votes than when summoned
promiscuously by tribes. In our case, therefore, a man of great
ability and of consummate prudence, Lucius Cotta, truly insisted
that no act whatever had been passed regarding us; for in addition to
the fact that those comitia had been held wholly under the fear of
armed slaves, the comitia tributa could not legally pass capital
sentences or privilegia. Consequently there was no need of a law to
reinstate us, against whom exile had not been legally pronounced.
But it seemed better both to you and to other most illustrious men
that all Italy should show what it felt concerning that same person
against whom some slaves and robbers declared they had passed a
decree.”[731]

Cicero is here contrasting the comitia centuriata, which recalled him,
with the tribal assembly of the plebs, which pronounced the sentence of
exile. Now as he was condemned by the plebeian assembly, it is clear that
in this passage Cicero calls the plebeian assembly comitia. How
Mommsen[732] can make this citation refer to his “patricio-plebeian”
comitia tributa no one can possibly explain. In Att. iii. 12. 1, comitia
expressly includes the tribunician elections. The same elections are twice
called comitia in Att. iii. 14; and in iii. 13. 1, Cicero, again mentioning these
comitia, says: “In tribunis plebis designatis reliqua spes est.” From all these
passages it becomes evident that Cicero regards the plebeian assembly as
comitia. In many passages comitia seems to include all the elections of the
year, of plebeian as well as of patrician magistrates; for the elections were
usually held in the same season, and could not well be separated in thought.
[733]
In fact, according to Cicero’s usage, comitia includes all kinds of
national assemblies which do not come under the term contiones; cf. Sest.
50. 106:

“In three places can the judgment and the will of the Roman
people be best discovered, in contio, in comitia, and in the gathering
for the festivals and the gladiatorial shows.”[734] Cf. also 54. 115;
59. 125.

The very phrase comitia populi (Rep. ii. 32. 56; Div. ii. 18. 42) implies
the existence of other comitia, for instance comitia plebis. It is not strange,
therefore, that Cicero should use the following expression; Rep. i. 33. 50:
“The nobles who have arrogated to themselves this name, not with the
consent of the people, but by their own comitia.”[735] Here he makes it
evident that there may be comitia of the nobles in contrast with the “consent
of the people.” Should the senate usurp the elective function, Cicero would
not hesitate to call that small body comitia, as appears from his ironical
expressions in Phil. xi. 8. 19 (“Quod si comitia placet in senatu haberi” and
“Quae igitur haec comitia”), in which he anticipates imperial usage; cf. Vell.
ii. 124; Tac. Ann. i. 15.
Furthermore he speaks of comitia, consisting of but seventeen tribes, for
the election of sacerdotes; Cael. 8. 19; Leg. Agr. ii. 7. 18; Ad Brut. i. 5. 3 f.;
14. 1; Fam. viii. 12. 4; 14. 1.
From his point of view, a tribal assembly of the whole people was one
which consisted of all thirty-five tribes, irrespective of the number present
in the several tribes, irrespective, too, of the rank of those who attended. An
assembly tributim of a part of the people, on the other hand, was one in
which some of the tribes were unrepresented. All this is clearly expressed in
Leg. Agr. ii. 7. 16 f.:

“For it orders the tribune of the plebs who has passed this law to
elect ten decemvirs by the votes of seventeen tribes in such a way
that he shall be decemvir whom nine tribes (a majority of the
seventeen) have elected. Here I ask on what account he (the
proposer of the law) has made a beginning of his measures and
statutes in such form as to deprive the Roman people of their right
to vote.... For since it is fitting for every power, command, and
commission to proceed from the entire Roman people, those
especially ought to do so which are established for some use or
advantage of the people, in which case they all together choose also
the man who they think will look out more carefully for the interest
of the Roman people, and each one by his own zeal and his own
vote assists to make a road by which he may obtain some individual
benefit for himself. This is the tribune to whom it has occurred,
more than to any one else, to deprive the entire Roman people of the

right to vote, and to summon a few tribes, not by any fixed legal
condition, but by the favor of sortition, to usurp the liberty of
all.”[736]

Even if the tribes were represented by no more than five men each, and
these men not voting in their own tribes, the assembly was nevertheless
comitia tributa populi.[737] This distinction—recognized by Cicero and his
contemporaries—between an assembly of the whole people as represented
by all the voting divisions and an assembly of a part of the people as
represented by some of the voting divisions, is incompatible with the
distinction formulated by Laelius. Though an antiquarian might make much
of the presence or absence of a few patricians, a man who lived in the
present, as did Cicero, probably never troubled himself about such
unpractical matters.[738]
From the evidence as to Cicero’s usage given above, we must draw the
following conclusions:

1. He often uses comitia to denote the plebeian tribal assembly,
just as Livy does.
2. He regularly uses comitia to denote the assembly of seventeen
tribes for the election of sacerdotes. In this respect his usage is the
same as Livy’s.
3. He is ready to call the senate comitia, should it usurp the
elective function—an anticipation of imperial usage.
4. His distinction between an assembly of the whole people and
an assembly of a part of the people is incompatible with the
definition of Laelius.

Concilium is comparatively rare in Cicero’s works. In a few cases he
seems to make concilia include all kinds of organized national gatherings;
cf. Rep. vi. 13 (3). 13: “Nihil est enim illi principi deo ... acceptius quam
concilia coetusque hominum iure sociati, quae civitates appellantur
(Nothing is more agreeable to the Supreme Being than assemblies and
gatherings of men which are joined in societies by law and which are called

states”); Fin. iii. 19. 63: “Natura sumus apti ad coetus, concilia, civitates.”
In the first citation concilium must, and in the second it may, include all the
citizens. Cicero could hardly mean that we are by nature adapted to
assemblies of a part of the people, or that nothing could be more
satisfactory to the Supreme Being than the concilium plebis which
interdicted him from fire and water. In Fin. ii. 24. 77 (“To me those
sentiments seem genuine which are honorable, praiseworthy, and creditable,
which may be expressed in the senate, before the people, and in every
gathering and concilium”) he could not be thinking simply of the plebeian
assembly, for he placed far greater value on the opinions expressed in and
by the comitia centuriata.[739]
From all that has been said it is evident that Cicero’s usage as well as
Sallust’s does not differ from that of Livy. In fact no variation can be found
in all the extant literature of the republic.[740] But it may be asked whether
there was not a juristic tradition separate from the literary and preserving
from early time the true distinction between the two words under
discussion. A negative answer is compelled by the fact that history had its
origin with jurisprudence in the pontifical college, that from the beginning
historian and jurist were often united in the same person.[741] Hence the
juristic usage was the same as the literary. It is thoroughly established,
therefore, that in the late republic, as well as in the early empire, the
distinction between comitia and concilium was not a distinction between
the whole and a part; in fact, it becomes doubtful whether the definition of
Laelius was known to the writers of this period.
The results thus far reached are of great importance; the definition of
comitia and concilium formulated by Laelius has been set aside, and the
ground prepared for the establishment of new definitions by induction.
From the material afforded by the authors under discussion, the following
conclusions relative to the general uses of the two words may be drawn:
I. (a) The phrases comitia curiata, comitia centuriata, comitia tributa
constantly occur; whereas (b) the phrases concilium curiatum (or -tim),
concilium centuriatum (or -tim), concilium tributum (or -tim) cannot be
found.
(a) The former is too well known to need illustration; (b) the latter may
be sufficiently established by an examination of the references for

concilium given in this chapter.
II. (a) Concilium may apply to a non-political as well as to a political
gathering; (b) comitia is wholly restricted to the political sphere.
(a) Concilium is non-political in Cicero, Div. i. 24. 49 (deorum
concilium); Tusc. iv. 32. 69; N. D. i. 8. 18; Off. iii. 5. 25; 9. 38: Senec. 23.
84; Fin. ii. 4. 12 (virtutum concilium); Rep. i. 17. 28 (doctissimorum
hominum in concilio); Sest. 14. 32 (applied to the meeting of a collegium);
Livy i. 21. 3 (Camenarum concilia); ii. 38. 4; xxvii. 35. 4.[742]
III. Within the political sphere, again, (a) concilium is the more general
term,—it suggests neither organization nor lack of organization; whereas
(b) comitia is restricted to the organized assembly.
(a) Concilium is the more general term in Cicero, Fin. iii. 19. 63; ii. 24.
77; Rep. vi. 13 (3). 13.[743] In all these citations concilia, denoting
assemblies of the whole people, must certainly include organized meetings,
without excluding the unorganized. In Leg. iii. 19. 42 (“Invito eo qui cum
populo ageret, seditionem non posse fieri, quippe cui liceat concilium,
simul atque intercessum turbarique coeptum sit, dimittere”) concilium is
probably the organized assembly. On the other hand, the concilium of all
the people mentioned by Livy, i. 8. 1, may have been unorganized.
IV. Within the province of organized national gatherings, on the other
hand, (a) comitia is the wider term, applying as it does to all assemblies of
the kind, whatever their function; whereas (b) concilium as an organized
national assembly is wholly restricted to legislative and judicial functions.
[744]

(a) Comitia is used in its most general sense in Cicero, Div. i. 45. 103; ii.
18. 42 f.; 35. 74; Tusc. iv. 1. 1.[745]
V. (a) Applied to foreign institutions, comitia always designates electoral
assemblies; (b) as at Rome, concilia are always legislative or judicial
assemblies.[746]
(a) Comitia is used of foreign states in:

Caesar, B. G. vii. 67; Cicero, Verr. II. ii. 52. 128 (three
occurrences), 129, 130; 53. 133; 54. 136; Fam. viii. 1. 2; Livy v. 1.

1; xxiv. 23. 1; 26. 16; 27. 1; xxxii. 25. 2; xxxiii. 27. 8; xxxiv. 51. 5.

(b) Foreign concilia are mentioned by:

Caesar, B. G. i. 18, 19, 30, 31, 33; iii. 18; v. 2, 6, 24, 56 f.; vi. 3,
20; vii. 1, 14, 15, 63, 75, 89; viii. 20 (Hirtius); Sallust, Hist. ii. 22;
Nepos, Tim. iv. 2; Livy i. 6. 1; 50-52; iii. 2. 3; 10. 8; v. 1. 8; 17. 6;
36. 1; vi. 10. 7; vii. 25. 5; viii. 3. 10; ix. 45. 8; x. 10. 11; 12. 2; 13. 3;
14. 3; xxi. 14. 1; 19. 9, 11; 20. 1; xxiv. 37. 11; xxvi. 24. 1; xxvii. 9.
2; 29. 10; 30. 6; xxix. 3. 1, 4; xxxi. 25. 2.; 29. 1, 2, 8; 32. 3, 4; xxxii.
10. 2; 19. 4, 5, 9; 20. 1; 21. 2; 22. 3, 9, 12; xxxiii. 1. 7; 2. 1, 7; 3. 7;
12. 6; 16. 3, 5, 8; xxxiv. 41. 5; 51. 5; xxxv. 25. 4; 27. 11; 31. 3; 32.
3, 5; 33. 1, 4; 34. 2; 43. 7; 48. 1; xxxvi. 6. 3; 8. 2; 26. 1; 28. 7, 9; 31.
9, 10; 32. 9; 34. 1; 35. 7; xxxviii. 9. 11; 10. 2; 31. 1; 32. 3; 34. 5; 35.
1; xxxix. 33, 35, 36, 37, 48, 50; xli. 24; xlii. 6, 12, 38, 43, 44, 47;
xliii. 17; xlv. 18. Most of these concilia are known to have been
assemblies of the whole people, noble and common.[747]

VI. In the Roman state, in a great majority of cases comitia are electoral
assemblies; in fact, the word may generally be understood to signify that
kind of assembly, or simply elections, unless the context indicates a
different meaning.
Comitia are electoral in:

Caes. B. C. i. 9; iii. 1, 2, 82; Sall. Cat. 24; Iug. 36, 37; Cic. Imp.
Pomp. 1. 2; Leg. Agr. ii. 7. 18; 8. 20; 10. 26; 11. 27; 12. 31; Mil. 9.
24, 25; 15. 41; 16. 42; Mur. 1. 1; 17. 35; 18. 38; 19. 38; 25. 51; 26.
53; Phil. ii. 32. 80, 81; 33. 82; 38. 99; viii. 9. 27; xi. 8. 19; Planc. 3.
7, 8; 4. 9, 10; 6. 15; 8. 21; 20. 49, 50; 22. 53, 54; Verr. 1. 6. 17; 7.
19; 8. 22, 23; 9. 24, 25; 18. 54; II. i. 7. 19; Frag. A. vii. 48; Rep. ii.
13. 25; 17. 31; 31. 53; Att. i. 1. 1, 2; 4. 1; 10. 6; 11. 2; 16. 13; ii. 20.
6; 21. 5; 23. 3; iii. 12. 1; 13. 1; 18. 1; iv. 2. 6; 3. 3, 5; 13. 1; 17. 7;
19. 1; xii. 8; Ad Brut. i. 5. 3; 14. 1; Fam. i. 4. 1; vii. 30. 1; viii. 2. 2;
4. 3; 14. 1; x. 26; Q. Fr. ii. 1. 2; 2. 1; 11. 3; 15. 3; iii. 2. 3; 3. 2;
Varro, R. R. iii. 2. 1; Nepos, Att. v. 4; Livy i. 32. 1; 35. 1; 60. 4; ii. 8.

3; 56. 1, 2; 58. 1; 60. 4, 5; iii. 6. 1; 19. 2; 20. 8; 24. 9; 30. 6; 34. 7;
35. 1, 7, 8; 37. 5, 6; 39. 8; 51. 8; 54. 9, 11; iv. 6. 9; 16. 6; 25. 14; 35.
6; 36. 4; 41. 2; 44. 1, 2, 5; 50. 8; 51. 1; 53. 13; 54. 8; 55. 4, 8; 56. 1;
57. 9; v. 9. 1, 8; 10. 10; 14. 1; 31. 1; vi. 1. 5; 22. 7; 35. 10; 36. 3, 9;
37. 4; 39. 5; 42. 9, 14; vii. 9. 4; 17. 10, 13; 19. 5; 21. 1; 22. 7, 11;
viii. 3. 4; 13. 10; 16. 12; 20. 1; 23. 11, 14, 17; ix. 7. 12, 14; x. 5. 14;
11. 3; 15. 7; 16. 1; 21. 13; 22. 8; xxi. 53. 6; xxii. 33. 9, 10; 34. 1, 3,
9; 35. 2, 4; xxiii. 24. 3; 31. 7, 12; xxiv. 7. 11; 9. 5, 9; 10. 2; 11. 6; 43.
5, 9; xxv. 2. 3, 5; 5. 2; 7. 5; 41. 10; xxvi. 2. 2; 18. 4; 22. 2; 23. 1, 2;
xxvii. 4. 1; 8. 1; xxviii. 10. 1, 4; 38. 11; xxix. 10. 1, 2; 11. 9, 10;
xxx. 40. 5; xxxi. 49. 12; 50. 6; xxxii. 7. 8, 12; 27. 5, 6; xxxiii. 21. 9;
xxxiv. 42. 3, 4; 44. 4; 53. 2; xxxv. 6. 2; 8. 1; 10. 1, 9; 20. 7; 24. 3;
xxxvi. 45. 9; xxxvii. 47. 1, 6; xxxviii. 35. 1; 42. 1, 2, 4; xxxix. 6. 1;
23. 1; chs. 32, 39, 40, 41, 45; xl. 18, 37, 45, 59; xli. 6, 8, 14, 16, 17,
18, 28; xlii. 9, 28; xliii. 11, 14; xliv. 17.

Comitia are legislative or judicial in:

Cic. Dom. 28. 75; 30. 79; 32. 86; 33. 87; Har. Resp. 6. 11; Mil. 3.
7; Phil. i. 8. 19; x. 8. 17; xiii. 15. 31; Pis. 15. 35, 36; Red. in Sen. 11.
27; Sest. 30. 65; 34. 73; 51. 109; Leg. iii. 19. 45; Rep. ii. 31. 53; 35.
60; 36. 61; Att. i. 14. 5; ii. 15. 2; iv. 1. 4; xiv. 12. 1; Livy iii. 13. 9;
17. 4; 20. 7; 24. 17; 29. 6; 55. 3; vi. 36. 9; viii. 12. 15; xxv. 4. 6;
xxvi. 3. 9, 12; xxxi. 6. 3, 5; xxxiv. 2. 11; xlii. 30; xliii. 16; xlv. 35.

As these lists are nearly exhaustive, they represent substantially the
relative frequency of the two uses of comitia.
VII. (a) Rarely is either the centuriate assembly or the so-called patricio-
plebeian tribal assembly termed concilium; (b) the plebeian tribal assembly
is rarely termed comitia except when electoral.
The principal instances of the rare use of concilium under (a) are Livy i.
26. 5; 36. 6; iii. 71. 3; vi. 20. 11.[748] (b) In its legislative or judicial capacity
the plebeian tribal assembly is called comitia in Cicero, Leg. iii. 19. 45;
Sest. 51. 109; Livy iii. 13. 9; 17. 4; vi. 36. 9; xxv. 4. 6; xxxiv. 2. 11; xlv. 35.

This classification covers without exception all the cases in the authors
under discussion. An attempt may now be made to trace the development of
these uses.
The first thing to be considered is that whereas concilium is singular,
comitia is plural. Undoubtedly it is a plural of the parts of which the whole
is composed; in other words, the curiae, or centuries, or tribes were
originally thought of as little assemblies, whose sum total formed the
comitia. Comitia therefore always has reference to the parts—the voting
units—of which the assembly is composed, whereas concilium as a singular
views the assembly without reference to its parts. For this reason, whenever
it is advisable to add a modifier to indicate the kind of organization of the
assembly, comitia is always used. We find, accordingly, comitia curiata,
comitia centuriata, and comitia tributa in common use, but never concilium
curiatum (or -tim), concilium centuriatum (or -tim), or concilium tributum
(or -tim). These last expressions, which are modern inventions, do not
accord with the Roman way of viewing the assemblies. This consideration
satisfactorily explains the first general use.[749]
As a non-political gathering is not made up of groups—similar to the
voting divisions of the national assemblies—it cannot be called comitia.
Concilium is the only term appropriate to it; hence we have the second
general use of the two words.[750]
The same consideration makes concilium the more general term within
the political sphere; the assembly it designates may be organized or
unorganized, whereas comitia applies only to assemblies organized in
voting divisions. This is the third general use.[751]
For explaining the four remaining uses it is necessary to inquire into the
fundamental meaning of concilium. Although the etymology is uncertain,
probability favors the ancient conjecture which derives it from “con-
calare.”[752] People could only be called together for a purpose, which
would most naturally be conversation, discussion, deliberation. Whatever
may have been its origin, concilium certainly developed this meaning.[753]
In the manuscripts and editions it is frequently interchanged with consilium,
[754]
and in the sources these two words are often placed in punning
juxtaposition.[755] Possibly their close resemblance, founded on no
etymological connection of the roots, helped create in concilium the idea of

deliberation. At all events in the prose authors of the period under
discussion this is the primary meaning. The deliberative character of most
non-political concilia is very evident.[756] With this meaning the word could
not designate an electoral assembly, which did not allow discussion;[757] it
was restricted to legislative and judicial assemblies, in which the voting was
preceded by deliberation. This is the fourth use.[758]
Rarely did a Roman writer have occasion to mention an election in a
foreign state. Whenever he did so, however, he always used comitia. Most
of the business of foreign assemblies referred to by Roman writers was
concerned with international affairs—was legislative—and hence foreign
assemblies are usually termed concilia.[759] This consideration accounts for
the fifth general use.[760]
The sixth[761] may be easily explained. The tendency was to restrict
comitia to electoral assemblies, just as concilium was restricted to
legislative and judicial assemblies, though this tendency never became a
rule.
The seventh[762] may be accounted for by the fact that after the passing of
the Hortensian Law, the centuriate comitia came to be almost wholly
electoral, while the plebeian tribal gathering became the chief statute-
making body in the state. Furthermore the assembly over which the tribunes
presided was far more deliberative than any other. Hence the centuriate
assembly became the comitia, and the plebeian tribal assembly the
concilium.[763]
The cause of the error into which Laelius[764] fell is now apparent.
Finding the plebeian tribal assembly frequently termed concilium and the
centuriate assembly of the whole people generally termed comitia, he
hastily concluded that comitia should be restricted to assemblies of the
whole people and concilia to assemblies of a part of the people. This
discussion has proved, against Laelius, that for the republic and for the age
of Augustus the distinction between the two words was not a distinction
between the whole and a part, and that all the uses of comitia and concilium
in this period may be explained by two simple facts: (1) that whereas
concilium is singular, comitia is plural; (2) that concilium suggests
deliberation, discussion.

A result of this inquiry is to banish the expressions “concilium tributum
plebis” and “patricio-plebeian comitia tributa”—the former as impossible,
the latter as unnecessary—from the nomenclature of Roman public law.
There were but three forms of organized assembly—curiate, centuriate, and
tribal—all equally entitled to the name “comitia.” The difference between
the “comitia tributa populi” and “comitia tributa plebis” was chiefly in the
presidency, as will be shown in a later chapter.[765] Contio, on the other
hand, denotes the listening or witnessing assembly, unorganized or
organized but never voting, whereas concilium, overlapping contio and
comitia, may include voting in addition to deliberation.
Mommsen, Th., Röm. Forschungen, i. 129-217; Berns, C., De comitiorum tributorum et
conciliorum plebis discrimine; Soltau, W., Altröm. Volksversammlungen, 37-46; Humbert, G.,
Comitia, in Daremberg et Saglio, Dict. i. 1374 ff.; Concilium, ibid. 1432 f.; Liebenam, W., Comitia,
in Pauly-Wissowa, Real-Encycl. iv. 679 ff.; Kornemann, E., Concilium, ibid. iv. 801 ff.; Vaglieri, D.,
Concilium, in Ruggiero, Diz. ep. ii. 566 ff.; see also indices s. Comitia, Concilium, in the works of
Niebuhr, Schwegler, Lange, Mommsen, Marquardt, Willems, Herzog, etc. The authorities thus far
named represent the usual theory as to the distinction between comitia and concilium based on the
definition of Laelius Felix discussed in this chapter. A new view is presented by Botsford, G. W., On
the Distinction between Comitia and Concilium, in Transactions of the American Philological
Association, xxxv (1904). 21-32—a paper reproduced with additions in the present chapter. See also
Lodge, G., Lexicon Plautinum, i. 277 f. (Comitia), 289 (Concilium); Forcellini, Totius Latinitatis
Lexicon, ii. 297 f. (Comitia), 347 f. (Concilium); Gudeman, Concilium, in Thesaurus linguae latinae,
iv. 44-8.

CHAPTER VII
THE CONTIO

Contio, derived from conventio,[766] originally signified “a coming
together,” “a meeting” of any kind. In an early stage of its history it must
have been a general term for public assembly, especially comitia. This
meaning appears most clearly in a passage of Macrobius,[767] in which,
quoting the treatise of Lucius Julius Caesar on the Auspices, he declares (1)
that on market days a contio cannot be called, (2) in other words, that on
such days business cannot be transacted with the people, (3) that for this
reason the Romans cannot hold comitia on market days. Cicero,[768] too,
states with reference to a certain market day that “for two days no contio
can be held”—for the day of the market and the one following. From the
context it is evident that he, like Macrobius, is thinking of comitia, which,
as is well known, could not legally meet on market days.[769] Doubtless in
the conservative nomenclature of the pontiffs and augurs, quoted by
Macrobius and Cicero, contio still included comitia; it must in fact have
applied more particularly to the formal, voting assembly; for informal
meetings were not forbidden on such days.[770] But in the time of Cicero
this use of the word was obsolete excepting in the archaic formulae of the
sacerdotal colleges. In the political language of his age contio had come to
be restricted to the non-voting assembly—either organized[771] or more
commonly unorganized—summoned by a magistrate or a sacerdos,[772] and
in this sense it will be used in the present volume. Still farther removed
from its origin is the meaning “oration” delivered to the people in such a
gathering.[773]
Because of the passive character of this form of assembly the magistrate
admitted all who wished to attend, without inquiring whether they were
citizens and in full possession of their political rights.[774] It might be
composed either of soldiers[775] or of civilians, presided over in the field by
the commander, in the city by any magistrate who had a right to hold
comitia in their own or in another’s name, including the king,[776] interrex,
dictator, master of horse, and tribunes of the plebs;[777] also the
quaestors[778] and aediles,[779] the pontifex maximus and the rex sacrorum.

[780]
Necessarily the right belonged as well to all extraordinary magistrates,
as the decemviri legibus scribundis, who possessed consular power within
the city.[781] But promagistrates and any others who held an exclusively
military imperium could summon neither the comitia nor the civil contio.
[782]
The censors held contiones for the taking of the census,[783] for
imposing fines,[784] and for the lustration. In the last-named function the
assembly was also called comitia centuriata or exercitus urbanus.[785] The
quaestors, the curule aediles, and the plebeian aediles exercised their
jurisdiction in contiones and comitia, which for this purpose they called not
in their own name but by permission of a higher magistrate.[786]
As the contio did not, like the comitia, theoretically include all the
people, any number of magistrates could simultaneously hold meetings of
the kind.[787] A minor officer had no right to take charge of, or to summon
the people from, a contio called by another. A higher officer exercised this
right against a lower; the consul, for instance, could take the meeting from
the hands of any ordinary patrician magistrate,[788] though not of a tribune
of the plebs. No one dared disturb a meeting of any kind under the
presidency of the latter,[789] and at least in the late republic a tribune
sometimes forbade a patrician magistrate to address an assembly;[790] but
otherwise consuls and plebeian tribunes might hold simultaneous contiones.
[791]

Sometimes the contio was summoned merely to witness a public act. The
consuls called the people together outside the walls by the sound of the war-
trumpet to see an execution for treason. On this occasion the citizens were
arrayed in centuries on the Campus Martius, in an assembly called at once
comitia centuriata and contio.[792] We hear of a similar execution of an
astrologer or magician outside the Esquiline gate, according to a primitive
custom;[793] and it was most probably in a contio that the supreme pontiff
scourged to death a man who had wronged a Vestal.[794] The people
gathered in the same kind of meeting to witness an oath,[795] a judicial
process,[796] or the levy of a fine.[797] But it was preëminently the listening
assembly, hence the definition offered by Gellius,[798] “To hold a contio is
to address the people, without calling on them for a vote.” It applied not
only to the isolated meeting summoned to hear edicts, reports,

communications of every kind, including arguments and appeals for or
against a given policy,[799] but also to the preparatory stage of the voting
assembly whether addresses were delivered or not. Occasionally in early
times there was speaking on the merits of candidates at the opening of an
electoral assembly, and the voting was sometimes interrupted for the
purpose.[800] Before the age of Cicero this rare proceeding had disappeared.
In his day the canvass for candidates had been made before the holding of
the preliminary contio, which accordingly was brief and formal. Because
much time was required for the voting of the centuries,[801] speaking on the
day of their assembly had to be minimized. For this reason the contio for
advising the adoption of a resolution by the comitia centuriata was held on
an earlier day. Such was the meeting summoned in the Campus Martius by
the consul P. Lentulus for the purpose of urging the people to vote in the
ensuing centuriate assembly for the recall of Cicero.[802] In judicial
proceedings before any of the assemblies the testimonies of witnesses and
the pleadings occupied the greater part of the time, and for this reason
judicial assemblies were frequently termed simply contiones. They will be
described in a later chapter.[803]
Informal contiones could be called at any time while the sun was up,[804]
with or without[805] an interval between the summons and the meeting, and
in any place[806] at the pleasure of the person who convoked them. In public
assemblies of every kind the people remained standing throughout the
session.[807] The magistrate who was about to summon an auspicated contio
repaired to the templum which he intended to occupy during the meeting.
[808]
After taking the auspices there, and finding the omens favorable, he
ordered the crier to call the citizens.[809] His directions to this assistant were
prefaced by a solemn wish that the gathering of the citizens might be well,
fortunate, auspicious, and advantageous to the Roman people, the
commonwealth, himself, his colleague or colleagues, and his magistracy.
[810]
After first issuing the summons from the templum the crier repeated it
while making the circuit of the walls.[811] Meantime the presiding officer
invited the senators, his colleague or colleagues, and the various other
magistrates to assist him with their presence and advice.[812] The invitation
was extended even to opposing tribunes;[813] and on the other hand a
presiding tribune was especially anxious to secure the presence and

favorable influence of patrician magistrates and of the leading men of the
state.[814] When the president saw his friends about him and the people
gathered, he called the contio to order,[815] and proceeded to open the
meeting with a prayer.[816] In the case of a resolution to be brought before
the assembly the magistrate was accustomed first to submit it to the senate,
which considered the bill and perhaps suggested alterations;[817] but
sometimes measures were brought into the comitia without this senatorial
deliberation.[818] In the contio the presiding officer had power to exclude or
to limit discussion of his proposals. Ordinarily he found it advantageous to
instruct the people regarding the subject on which they were to vote; and it
was for this purpose that one or more contiones were held previous to the
comitia. The right to address the people belonged primarily to the presiding
magistrate. Although the king enjoyed the superior right, the notion that in
the regal period no private persons spoke in the assembly seems to be
unwarranted.[819] The custom of the republic prescribed that the president
should grant the privilege not only to his colleagues[820] but also to all the
higher magistrates.[821] In some cases the invitation was extended to
senators[822] and to other distinguished private persons.[823] The tribunes
sometimes gave the privilege to freedmen,[824] to foreign kings,[825] and to
ambassadors.[826] The early republic did not allow women to be present in
political meetings;[827] but in time this severity began to relax. Livy[828]
represents the elder Cato as saying that his generation permitted women to
take part in affairs of state and to interfere in contiones and comitia—
evidently an exaggeration, as the context proves that the women referred to
did not actually come into the assembly, and the speaker intimates that
custom disapproved of their doing so. From the time of the Gracchi they
occasionally spoke in public. Dio Cassius[829] states that Tiberius Gracchus
brought his mother and children into a contio to join their entreaties with
his; and according to Valerius Maximus[830] a tribune of the plebs required
Sempronia, sister of the Gracchi, to come forward in a similar meeting and
give her opinion on the subject under consideration. In the year 43 some
ladies attended a contio to protest against being taxed by the triumvirs.
Hortensia spoke for the complainants.[831] It was an accepted custom that
no tribune should intercede against a measure till an opportunity had been
afforded private persons to speak for or against it.[832] When after the

victory of Pydna a tribune of the plebs had introduced a motion to grant a
triumph to Aemilius Paulus, and the debate had been thrown open to the
assembly, all for a time remained silent, for no doubt was entertained as to
its passing; but finally Servius Galba, who as a military tribune had served
under Paulus and was his enemy, came forward and obstructed the measure
by a long harangue.[833] Although the president could, and perhaps often
did, throw the debate open to the citizens in this way, he was not compelled
to do so. The tribunician assembly was more deliberative than any other—a
circumstance which accounts for its designation as a concilium.[834] Those
invited to speak, if citizens, had to be of good standing and not under
disqualification through a special law or usage. The rex sacrorum was
prohibited not only from holding any other office but also from addressing
an assembly.[835] The spendthrift[836] and the man condemned for
extortion[837] were likewise forbidden. When the right was granted as a
special distinction, the receiver was probably placed thereby on a footing of
equal dignity with the magistrates.[838]
The president could also compel a citizen to speak. The holder of the
imperium had a right to summon any man into a public meeting, and order
him to answer any question put to him.[839] Tribunes of the plebs, however,
who lacked the power of summoning, exercised this coercive function
against citizens and even consuls, not through a direct right but by a
usurpation, probably based on their power to arrest and imprison.[840]
The president extended permission by asking a man to give his opinion
on the subject under discussion, and it was not in good order even for a
magistrate to address the assembly unless invited, though he had ground for
resentment if he was passed over in favor of private persons.[841] When
Caesar as consul, 59, brought his agrarian bill before the comitia without
the consent of the senate and in spite of its silent disapproval,[842] he first
asked his colleague whether he had any objection to the proposal. Bibulus
offered none but declared that he would allow no innovation during his
consulship. Thereupon Caesar begged him for support, and requested the
people to join in the entreaty, saying, “You will have the law on the sole
condition that he is willing.” Then Bibulus, answering in a loud voice, “You
will not have this law the present year, even if all of you want it,” left the
assembly. Slighting the other magistrates, Caesar invited Pompey and

Crassus to address the meeting, though they were but senators and
therefore, as contrasted with magistrates, merely private citizens. After
Pompey had spoken at length, commending the details of the law, Caesar
asked if he would support it against opponents, at the same time requesting
the people to beg of him this favor. They did so, doubtless by acclamation;
and Pompey, greatly flattered because the consul and the people besought
help of him, a private citizen, promised to stand by the law.[843]
A magistrate spoke from the platform, a private person from a lower
position, presumably from one of the steps; for the chairman to bring a
private speaker upon the stage was a cause of offence to his colleagues.[844]
When the president granted an opportunity to speak, he had a right to fix the
amount of time to be used. In the debate on the law for assigning provinces
to Caesar and Pompey, 55, the presiding tribune granted one hour to
Favorinus and two hours to Cato, both opponents of the measure.[845] The
speaker could use the time in whatever way he pleased; a few persons by
concert might waste the whole day in trivialities, as is sometimes done in
the senate of the United States of America, so as to prevent voting on the
subject for that date. In the case above mentioned Favorinus, doubtless for
lack of real argument, exhausted his hour in lamentation over the shortness
of the time allowed him,[846] and Cato spent his two hours on irrelevant or
minor matters, merely that he might be silenced by the president while still
appearing to have something to say. He persisted in speaking accordingly
till an officer dragged him from the rostra and ejected him from the Forum.
Even then he returned several times to interrupt the proceedings with his
shouting.[847] If the speaker approved the measure, he might close with the
words, “This law of yours and your purpose and sentiments I praise and
most heartily approve”;[848] or more formally, “In my opinion this bill as
presented ought to be passed, and may it prove well, auspicious, and
fortunate both to yourselves and to the republic”;[849] or if opposed to the
proposition, he might conclude with this form of disapproval, “It is my
judgment that this law should by no means be repealed.”[850]
Sometimes the magistrates were invited in the order of their rank and
afterward private citizens; in other cases, especially in tribunician
contiones, private persons were called first that they might speak with
perfect freedom, uninfluenced by the opinion of their magistrates.[851] As

the president had absolute control, he could alter the usage to suit his own
interest, and could certainly reserve to himself the advantage of speaking
last.[852] It often happened that there was not enough time in one day for the
discussion of a question. In that case the magistrate adjourned the meeting
to a specified date.[853]
After the deliberation, or after the formality of opening the contio which
was merely preliminary to the comitia, the president ordered the assembly
to form into voting groups—curiae, centuries, or tribes. He could say, for
instance, “I order you to take your proper places in the comitia
centuriata,”[854] or more generally, “If you think fit, quirites, move apart
(into your voting groups).”[855] At the same time he ordered the departure of
all who lacked the qualification for voting.[856] The lictors of the
magistrates with imperium and the beadle (viator) of the tribune attended to
clearing away the unqualified.[857]

Schulze, C. F., Volksversammlungen der Römer, 141 ff., 243 ff.; Rubino, J., Röm. Verfassung und
Geschichte, 240-53; Lange, L., Röm. Altertümer, ii. 715-23, and see indices s. v.; Mommsen, Th.,
Röm. Staatsrecht, i. 191-209; iii. 370-8, and see index s. v.; Willems, P., Droit public Rom. 158 f.;
Herzog, E., Röm. Staatsverfassung, i. 632-6, 1057 f., and see index s. v.; Karlowa, O., Röm.
Rechtsgeschichte, i. 48 f., 379-81; Madvig, J. N., Verf. u. Verw. d. röm. Staates, i. 219; Soltau, W.,
Altröm. Volksversammlungen, 37 ff.; Humbert, G., Contio, in Daremberg et Saglio, Dict. i. 1484 f.;
Liebenam, W., Contio, in Pauly-Wissowa, Real-Encycl. iv. 1149-53; Ruggiero, Diz. ep. ii. 1185, s.
Contio; Lodge, G., Lex. Plaut. i. 307, s. Contio; Forcellini, Tot. Lat. Lex. ii. 349 f., s. Concio;
Dupond, A., Constitution et magistratures Rom. 60-3; Ihne, History of Rome, iv. 40-2.

CHAPTER VIII
THE CALATA COMITIA

In seeking for the origin and primitive character of the Roman assembly
we are enabled by comparative study to reach a stage of growth far anterior
to the beginnings of Roman tradition. In its earliest known form the
European popular assembly had the following characteristics, provisionally
enumerated here, but established in the next chapter: (1) the people who
attended were the mass of freemen of a tribe, especially the warriors; (2)
they stood or sat promiscuously, without reference to sub-tribal groups; (3)
measures were proposed by none but chiefs or nobles, generally after
previous discussion in council, the common members wholly lacking
initiative; (4) the speakers were as a rule, though not exclusively, chieftains;
(5) the vote was by acclamation, the clash of weapons, or some similar
demonstration; as a correlate of (3) and (4) may be added, (6) sovereignty,
so far as the idea existed, resided not in the assembly, which of itself could
take no action, but in the king and chieftains, who made use of the assembly
(a) for the publication of news or of projects, (b) for securing by their
eloquence the coöperation of the tribe in a plan already formed in council.
However far developed beyond this crude institution the comitia curiata or
the comitia centuriata of the republican period may have been, traces of all
the characteristics above mentioned may be found in the historical Roman
assembly[858]—a fact which justifies the comparative method of approach
to the subject.
We need not hesitate to begin with the unorganized contio as the earliest
form of Roman assembly, to which we may attach the other features of the
European gathering named above. The first problem is to determine under
what influence and for what purpose the gathering of the people came to be
organized in curiae. The notion that the object was primarily for voting is
groundless. The Athenians had the germ of a tribal assembly in the division
of the people by phylae on the occasion of ostracophory[859] and of the
passing of other privilegia (νόμοι ἐπ’ ἀνδρί). The organization was not in
this case for the purpose of using the tribes as voting units, but merely for
bringing order and solemnity to the proceeding. Apparently the assembly of
Alamanni was arrayed in military form for ratifying emancipations,[860]

though in the process the military companies did not vote as units. In like
manner, but for a wider range of functions, we find at Rome the meeting of
the people in curiae, less frequently in centuries, merely for listening, for
witnessing, or for receiving purification. The circumstances that the
business of such assemblies was largely religious, and of such a character
that it must have originated in the earliest Roman times, and that in the
greater number of cases these gatherings were under sacerdotal presidency
suggest that the sacerdotes, particularly the pontiffs, introduced the curiate
organization from the army to make their religious meetings more orderly
and dignified.[861]
All assemblies which met under pontifical presidency for religious
purposes were called calata,[862] evidently from “calare,” a verb which must
originally have been in common use in the sense of “to call,” but which in
historical time was restricted to the technical language of the sacerdotes.
[863]
In the latter connection it designates the peculiar method of
summoning used by the pontiffs.[864] Probably, at least in earlier time, their
calatores acted as curiate lictors in convoking the calata comitia curiata,[865]
over which they presided. In all meetings of the kind in the regal period the
people were grouped in curiae; under the republic the centuriata comitia
calata were also used for certain purposes.[866] The usual meeting-place of
the calata comitia curiata was in front of the curia Calabra on the Capitoline
Hill.[867] With reference to their object, they may be classed as non-voting
and voting; the former were purely religious, the latter were for the
settlement of questions which were in part civil.[868] First to be noted of the
non-voting assemblies were those in which the people gathered in comitia
under the presidency of the king,[869] in the republic under the rex
sacrorum, to hear the proclamation of the fasti. On the calends of each
month a pontifex minor, as clerk of the college,[870] announced to them on
what day, whether the fifth or seventh, the nones would come.[871] On the
nones the king again summoned the people to hear the calendar of the
month,[872] read probably by the same pontifex minor. This custom fell into
disuse with the publication of the calendar in the Forum, beginning in 304.
[873]

Equally passive were those comitia calata which under the presidency of
the supreme pontiff witnessed the inauguration of the three flamines

maiores,[874] probably of the king in the regal period, and certainly of the
rex sacrorum under the republic.[875] As warlike Mars had his shrines
outside the pomerium,[876] his chief temple being in the Campus Martius,
[877]
it is a probable conclusion that his flamen was inaugurated there—in
the regal period in some form of military assembly, under the republic in
the comitia centuriata.[878] The inaugural ceremonies were performed by an
augur;[879] in the case of the sacerdotes it was the supreme pontiff who
requested this service of him,[880] whereas the king could doubtless
command an augur without the coöperation of the pontiff. A closely related
function was the appointment of Vestals by lot, under the conduct of the
supreme pontiff in a public assembly, probably the calata comitia.[881] The
destatio sacrorum and the abjuration of social rank, other acts which these
comitia merely witnessed, will be considered in connection with the
transitio ad plebem and the adrogatio.[882] The ceremonies attended to by
the rex sacrorum on March 24 and again on May 24 may have been in
comitia calata, though this is doubtful.[883]
Assemblies of the people were organized in curiae by the pontiffs for the
religious purposes mentioned above, while political measures, so far as
submitted to the people, continued for a time, we may suppose, to be
decided by din in contiones. But when a desire for a more precise vote
began to be felt, the curiate organization naturally offered itself as most
convenient for the purpose. The contention that in primitive Rome, as
among other early peoples,[884] the assembly expressed its feeling or
opinion by noisy demonstration finds strong support in the most probable
derivation of suffragium, “vote,” which connects it with frangere, fragor, “a
breaking,” “crash,” “din,” “applause,”[885] the prefix sub- expressing the
dependence of the action upon the proposal of the speaker, as in the military
succlamare, succlamatio.[886] We may well believe that even after the
organization of the assembly as comitia—that is, in curiate, centuriate, or
tribal divisions[887]—the voting within the component groups continued for
a time to be by din, as is suggested by the phrase sex suffragia, applied to
the six oldest groups of knights in the comitia centuriata.[888] Voting by
heads in large gatherings is in fact a slow, cumbersome process, the product
of a well-developed political life. In all probability it originated in the
centuriate assembly—in which the military array facilitated the taking of

individual opinion[889]—and afterward extended to the other comitia. This
line of reasoning suggests that when in the regal period a desire began to be
felt for a more precise vote, and the curiate organization readily offered
itself for the purpose, the expedient was adopted of taking the vote of each
curia in order by din and then of deciding the question at issue by a majority
of the thirty curial votes.[890] There can be little doubt that this step also was
first taken by the pontiffs.
The testamentary calata comitia met twice a year, probably on fixed days.
[891]
It has been a disputed question whether the oldest form of testament
here referred to required a vote of the people. Rubino[892] strongly upheld
the negative on the ground (1) of analogy with the procedure in
inaugurations, (2) of analogy with other forms of testament, none of which
required a vote, (3) of the word testamentum itself, which refers to
witnessing, (4) of the conviction that the patricians would not leave to the
popular assembly the making of private law, (5) on the authority of
Theophilus,[893] who mentions the people’s witnessing of the testament, (6)
on the statement of Gellius[894] that wills of the kind were made “in populi
contione.” Against this reasoning may be urged (1) the analogy from the
adrogatio, (2) the analogy from the testamentary adoption, to both of which
cases the simple testament was similar, and both of which required a vote of
the people,[895] (3) the consideration that the act of witnessing in the
assembly did not necessarily exclude a vote, (4) the statement of Gaius[896]
that calata comitia were convoked “for making”—not for witnessing—
testaments, (5) the circumstance that the contio was often a preliminary
stage of the voting assembly[897] in addition to the fact that pontifical
language applies the term to comitia in general.[898] These arguments offset
all the points offered by Rubino, unless it be the fourth, which is a purely
subjective consideration. Arguments (1), (2), and (4) are especially effective
for establishing the fact of a vote in the case under consideration. But the
problem can be most satisfactorily solved (6) by comparative investigation.
In the constitution of the early Indo-European family the estate belonged
jointly to all the male members, and for that reason could not be given away
by the pater.[899] The primitive Germans accordingly made no wills, but left
their property to their children, or in failure of children to the near kin.[900]
In Attica the right to bequeath was instituted by a law of Solon, which

allowed it to those only who had no legitimate sons;[901] in Sparta the right
was introduced by Epitadeus, perhaps early in the fourth century b.c.[902]
Testaments were unknown in Gortyn at the time when the Twelve Tables of
this city were published,[903] and similar conditions existed in other states of
Greece.[904] The rule holds, too, for ancient India.[905] The Slavic
householder could not alienate his land without the consent of the
community.[906] As there is no reason to assume a more advanced condition
for primitive Rome, we may conclude that, as indicated above, the calata
comitia not only witnessed but ratified testaments.[907]
Mommsen has attempted to fix these days as March 24 and May 24,[908]
on which the rex sacrificulus performed comitial ceremonies not clearly
described by the sources.[909] He admits, however, that the testamentary
comitia met under the pontifex maximus rather than under the rex
sacrorum[910]—a fact directly opposed to his contention. We should be
surprised also to find the testamentary days so close together.[911] But the
most effective argument against his view is that this function performed by
the rex sacrorum could not have been the holding of comitia, for the time
during which it continued was nefas.[912] The ancient authorities state that
“the sacrificial king, after performing sacred rites, comes into, or makes a
sacrifice in (venit or litat), the comitium,”[913] but they do not mention an
assembly; hence we may infer that in the fasti for these days reference is to
some other function than the holding of comitia. The form of testament
above described fell early into disuse,[914] so that the conditions and
ceremonies attending it became a subject of study for antiquarians.
Adoptions ordinarily came before the praetor. The legal object was the
perpetuation of the family and its religion. The law granted the privilege
accordingly to those only who had no children and who were incapable of
having children. It required further that the act should not imperil the
continuance of the family from whom the adopted came.[915] Adrogatio was
the adoption of a person who was his own master and who accordingly
consented to pass under the paternal power of another. The word signifies
that the act to which it applies required a vote of the people.[916] It was not
undertaken rashly or without careful consideration.[917] The persons
concerned were required first to present the case to the college of pontiffs,

who took into account “what reason any one has for adopting children, what
considerations of family or dignity are involved, what principles of religion
are concerned.”[918] The age of the man who wished to arrogate was
considered—whether in this respect he was capable of having children of
his own, and care was taken that the property of the arrogated person should
not be insidiously coveted.[919] The adrogator was asked whether he wished
the candidate for adoption to be his real son, and the candidate was asked
whether he would allow himself to be placed in this condition;[920] and the
testimonies were confirmed by an oath formulated by Q. Mucius Scaevola.
[921]

If the pontiffs gave their consent, the case came before the comitia
curiata under the presidency of the chief of the college,[922] who put the
question in the following form: “Do you wish and order that L. Valerius be
the son of L. Titus by the same legal rights as if born of the father and
mother of that family, and that the latter have the power of life and death
over the former as a father over a son? This order I request of you, Romans,
to grant, just as I have pronounced the words.”[923] The curiae decided by
vote.[924] At the same meeting the arrogated son was required to declare that
he forsook the religion of the family or gens of his birth—detestatio
sacrorum[925]—and by a similar declaration the adrogator received him into
the sacra of the new family.[926] This form of adoption could not apply to
youths before they had put on the manly gown, or to wards or women; for
children and women had no part in an assembly, and guardians were not
allowed under any circumstances to place their wards in the power of
another.[927]
A modification of adrogatio is testamentary adoption, of which the only
well-known case is that of Octavius, the heir of the dictator Caesar.
Octavius came before a praetor with witnesses and formally accepted the
inheritance;[928] afterward he was declared adopted by a vote of the curiae.
[929]
As this case is nearly akin to the adrogatio, there can be no doubt that
the vote was taken in the calata comitia under pontifical presidency.[930]
Distinct from the adrogatio, though analogous to it, was the direct
passing of individuals and of gentes from the patrician to the plebeian rank
—transitio ad plebem. The motive was a desire to qualify for the tribunate

of the plebs,[931] or more generally to widen the range of one’s eligibility to
office.[932] The history of the republic affords several instances of the
transition of individuals;[933] and two plebeian gentes, the Octavia[934] and
the Minucia,[935] boasted of having passed over from the patricians. Even if
these boasts rest upon genealogical falsifications,[936] the Romans thought
such an act legally possible; and they formulated a process applicable to
every case whether of individuals or of gentes. It was through some other
ceremony than the adrogatio, for the latter could not apply to groups of
persons. Clodius was following the more general procedure here referred to
when in the year 60 he tried to make himself a plebeian without recourse to
adrogatio. First he abdicated his nobility by an oath, probably taken in the
comitia calata;[937] then coming before an assembly of the plebs, he held
himself ready to receive plebeian rights through a resolution introduced by
the tribune Herennius.[938] The process allowed the retention of the name,
sacra, and all other privileges not dependent on the patriciate.[939] But
Metellus, the consul, objected that a curiate law was needed to make the act
valid, and the senate evidently agreed with him.[940] Metellus may have had
in mind the transition through the adrogatio, which required a curiate law,
or more probably he was thinking of a vote of the curiae in addition to the
other formalities which Clodius was passing through.[941] The complete
process accordingly would have been the abjuration of the patriciate,
confirmed by a curiate law, and the reception of plebeian rights through a
plebi scitum. Clodius was not so foolish as to suppose that a process of
transitio invented by himself would prove acceptable to the senate and
magistrates, and must therefore have followed as closely as possible the
formula which he believed to be legal. But when Metellus raised the
objection, and when the tribunes persisted in interceding against the plebi
scitum,[942] he yielded for the present, and in the following year had himself
arrogated by a plebeian named Fonteius, from whom he was forthwith
emancipated.[943] This procedure, too, allowed him to retain the gentile
name of his birth,[944] his imagines and sacra,[945] and consequently his
inheritance. The oath taken in the calata comitia accordingly was not the
detestatio sacrorum usual in arrogations, but a form of declaration which
reserved these privileges, with the understanding that in this case the

arrogatio was not for the customary object but to enable him to change his
rank.[946]
Analogous to the transitio ad plebem is the elevation of a plebeian to the
patrician rank. The Romans believed that eminent plebeians, including
foreigners of distinction newly admitted to citizenship, were sometimes
granted the patriciate not only through the regal period but also in the
opening years of the republic. For the republican age they represented the
bestowal as a double act, a resolution of the people followed by coöptation
into the senate.[947] In stating that the first consuls chose the best men from
the commons, made them patricians, and with them filled the senate to the
number of three hundred, Dionysius[948] apparently has in mind the
consuls’ function of recruiting the senate before the Ovinian legislation,[949]
together with their initiative in granting the patriciate. The Roman view that
the bestowal required a vote of the people is further proved by the
procedure of Julius Caesar and of Octavianus in creating new patricians; for
in this function they doubtless followed tradition as nearly as possible. In 45
a plebi scitum,[950] proposed by L. Cassius Longinus and supported by a
senatus consultum,[951] empowered Caesar to recruit the patrician rank.
Octavianus proceeded in a similar manner except that a consular law,[952]
approved also by a senatus consultum,[953] was passed for the purpose. As
the object was religious, we may suppose that the qualifications of the
candidates were previously examined by the pontifical college. On the
analogy of the transitio ad plebem it may be assumed further that the
candidate abjured his plebeian rank in the calata comitia, which then
confirmed his declaration by vote.[954]
But whether the Romans were right in supposing patricians to have been
created in the early republic has been doubted. Mommsen[955] takes the
ground that when the curiae ceased to be exclusively patrician, elevation to
the rank became impossible, and that therefore no cases of the kind
occurred after the fall of the kings. But in such a matter it is absurd to speak
of impossibilities; everything was possible which the governing power
approved, and the argument falls when its basis, the purely patrician state,
has been removed.[956] The cessation was in fact due to the growing
exclusiveness of the patricians, who as they came to supplant the king in the
government, learned to value their privileged position so highly they were

unwilling longer to share it with others. Just when the closing of their rank
was effected has not been ascertained, but there is no good reason for
rejecting the Roman view that for a time after the fall of the kings plebeians
continued to be admitted: in reality the indications are strong for a relatively
late closing.[957]
We may next inquire how patricians were created in the time of the kings.
As the history of the regal period is in general a reconstruction with
material drawn from later time, so in this particular case ancient writers
sometimes date back to the age of the kings the usage of the republic.
Dionysius[958] accordingly states that “the Romans by vote transferred
Servius Tullius from the plebeian to the patrician order, just as they had
previously transferred Tarquin the Elder and still earlier Numa Pompilius.”
But the Romans preferred to reconstruct the process on an entirely different
principle. Regarding the kings as the founders of all the fundamental
institutions, the patricians looked upon their superior rank as a gift of these
monarchs. The patriciate depended upon senatorial membership, which was
at the disposal of the kings.[959] This view is well adapted to explain the
creation of the senate; but for the period after its establishment Livy[960]
adds to the adlectio of the king a coöptatio by the patres (senators). Livy’s
account of the usage here given is reasonable; the king indicated his
preference as to the choice of advisers, but a powerful council, such as the
senate must have been, at least in the later regal period, would have the
final decision on the question of admitting a new member. The conclusion
is that toward the end of the monarchy, if not from the beginning, plebeians
were admitted to the senate, and through it to the patriciate, by the
coöperation of the king and the senate, the people having nothing to do with
the matter.[961] But after the overthrow of the monarchy the vote of the
people was substituted for the will of the king, coöptation by the senate
continuing as before.[962]
The patriciate was acquired not only through bestowal by the state, but
also through the adoption of a plebeian into a patrician family. Several cases
of the kind have been ascertained.[963] The act took place before the
praetor[964] and did not concern the comitia. Probably a preliminary
examination by the pontiffs was necessary to adoptions as well as to
arrogations.[965]

Rubino, J., Röm. Verfassung, 241-53; Mommsen, Röm. Forschungen, i. 123-7, 397-409; Röm.
Chronologie, 241 ff.; Röm. Staatsrecht, ii. 33-41; iii. 38-40; Lange, L., Röm. Altertümer, i. 131-4,
177 f., 356 f., 362, 398-401, 459, 795; ii. 518, see also indices s. Adrogatio, Calatores, Detestatio
sacrorum; Transitio ad plebem, in Kleine Schriften, ii. 1-90; Madvig, J. N., Verf. u. Verw. d. röm.
Staates, i. 222-6; Herzog, E., Röm. Staatsverfassung, i. 108-11, 1062-4, 1075; Mispoulet, J. B.,
Institutions politiques des Romains, i. 202 f.; Willems, P., Droit public Rom. 53 f.; Drumann-Gröbe,
Gesch. Roms, ii. 187 ff.; Wissowa, G., Religion und Kultus der Römer, 440 f.; Hallays, A., Comices à
Rome, 16-9; Mercklein, D. L., Coöptation der Römer, 11-44 (of the gentes and of the senate); Helbig,
W., in Comptes rendus de l’acad. des inscr. et belles-lettres, xxi (1893). 350-3; Büdinger, M., Cicero
und die Patriciat, in Denkschr. d. Kaiserl. Akad. d. Wiss. Phil.-hist. Cl. xxxi (1881). 211-73; Der
Patriciat und das Fehderecht in den letzten Jahrzehnten der röm. Rep., ibid. xxxvi (1888). 81-125;
Baudry, F., Adrogatio, in Daremberg et Saglio, Dict. i. 83 f.; Saglio, E., Calator, ibid. i. 814;
Humbert, G., ibid. i. 1375 f.; Detestatio sacrorum, ibid. ii. 113; Leonhard, Adrogatio, in Pauly-
Wissowa, Real-Encycl. i. 419-21; Samter, Calatores, ibid. iii. 1335 f.; Kübler, Calata comitia, ibid.
iii. 1330-4; Ruggiero, E., Diz. ep. ii. 1185; Smith, Dict. i. 26 f.; Nettleship, Contrib. to Lat. Lexicog.
400.

CHAPTER IX.
THE COMITIA CURIATA

The primitive European assembly, of which the Roman is a variety, may
be reconstructed in broad outline by a comparison of the forms and
functions of the institution as found among the earliest Italians, Greeks,
Celts, Germans, Slavs, and kindred peoples, among whom it differed in
detail while possessing the same general features. The usual tendency of
development was toward the abridgment of popular powers to the
advantage of the nobles or of the king;[966] but in some instances may be
discovered a growth in the opposite direction.
Generally the assembly did not have fixed times of meeting but convened
only when called by the king or chiefs. This is known to be true of the
Homeric Greeks,[967] of the Slavs,[968] and of the Romans,[969] and may be
regarded as the more primitive condition. In addition to extraordinary
sessions the German assembly acquired the right to meet regularly twice a
month at fixed times[970]—a right which gave the people a valuable political
advantage. In like manner the Lacedaemonians met once a month;[971] the
Athenians probably once a prytany (tenth of a year) after Cleisthenes, and
certainly four times a prytany after Pericles.[972] The Celtic assemblies
convened annually or triennially at fixed seasons.[973] Among all these
peoples, however, subjects for consideration were presented by none but the
king or chief, the assembly itself being wholly without initiative. Such
subjects were as a rule previously discussed in a council of chiefs or nobles.
[974]
The person who summoned the assembly naturally made the first
speech, which explained the purpose of the meeting and the character of the
subject to be considered. If it was an enterprise in which he desired the
support or coöperation of the community, he attempted to rouse for it the
enthusiasm of his hearers.[975] The discussion might then be continued by
the chiefs or any others distinguished for age, military prowess, or
eloquence.[976] Among the Germans, who possessed more than the average
degree of liberty, any one spoke who could gain a hearing; in the Homeric
assembly a commoner who dared lift up his voice against king or noble was
liable to severe chastisement as a disorderly person;[977] and conditions at

Rome, as well as in Etruria,[978] seem to have been equally unfavorable to
the ordinary freeman.
A considerable variety of business came before the assembly. It might be
summoned to hear the announcement of news of interest to the community,
[979]
the reading of the calendar for the month,[980] the declaration of a
policy or opinion by a king or chief,[981] or for witnessing acts affecting the
interests of the community.[982] More important were judicial cases,[983]
questions of war and peace,[984] and elections.[985]
The problem as to the relative power of the king and council on the one
hand and of the assembly on the other is difficult. It was a disadvantage to
the people, over and above their lack of initiative, to have no means of
precisely expressing their will. The Greeks signified their approval by
acclamation,[986] the Germans by clashing their weapons,[987] and the Celts
by both;[988] either demonstration aimed to express, not the will of the
majority,[989] but the intensity of conviction on the part of the assembly as a
whole. It lacked as well the means of legally enforcing its will.[990] The
Achaeans in assembly approved the petition of Chryses, a suppliant priest;
nevertheless King Agamemnon rejected it.[991] After the people had divided
the spoils of war, Agamemnon seized the prize they had given another.[992]
The Trojans were ready to surrender Helen for the sake of peace; but Priam,
to gratify his son, refused, and the war went on.[993] In his relations with
individuals the king often acted unjustly and tyrannically. Even in affairs
which concerned the entire community he might take large liberty. Without
consulting the assembly he could count on the support of the people in a
war of defence. Treaties of peace, which were often guest-friendships and
intermarriages between royal families,[994] did not come before the people
for ratification as a right, but only in cases in which their pledge seemed
necessary for the prevention of private warfare. The right of the magistrate
to conclude peace with or without discussion in the council or senate was
recognized by the states of Italy as late as the Second Samnite war.[995] The
king might even declare an offensive war on his own responsibility, if
without consulting the people he could feel sure of their support.[996]
Enterprises requiring their coöperation he usually submitted to them to win
their approval, as he had no means of coercing the entire community. His

independence of the assembly increased with the growth of heredity. The
idea of sovereignty, strictly speaking, was unknown to primitive times; yet
so far as people thought of political power, they assigned it to the king and
council.[997] Nevertheless the fact of the assembly’s existence and the need
of eloquence for persuading it prove it to have been a real force. The
suppression of the German assembly or the prohibition of carrying arms to
the meeting was looked upon as intolerable tyranny.[998] For the disturbance
of an Irish assembly the penalty was death.[999] Public opinion was a check
on royalty,[1000] and in extreme cases the people rebelled and killed their
king.[1001]
The strengthening of the kingship naturally tended to weaken the
assembly. The Lacedaemonian kings had a right to make war on whatever
state they pleased, and any citizen who obstructed this power was accursed;
[1002]
if, too, in anything the people gave a wrong decision, the kings and
council could set it right.[1003] Under the Frankish monarchy the general
assembly seems to have entirely disappeared in the sixth century a.d., to be
revived in the latter part of the seventh,[1004] in a form which took little
account of the commons.[1005] In the other Germanic tribes which entered
the Empire the effect of the migration was to strengthen the king and to
weaken in a corresponding degree the power of the people.[1006] In Russia
Tartar domination, converting the legitimate princes into tyrants, effected
the downfall of the assemblies.[1007] The building up of large states, too,
necessarily degrades or destroys popular gatherings.[1008]
The heritage of the Roman assembly from the earlier tribal time must
have been slight as well as vague—a heritage diminished further by the
growing power of the king and nobles. The assumption has often been made
that from the beginning the Roman assembly was sovereign. The view rests
in part, however, on a confusion of two ideas which should be kept distinct.
In its broadest sense populus designates the state, which is sovereign
whether it expresses its will through the king, the senate, or the popular
assembly, or through the concurrence of two or more of these elements. In
interstate relations it always has this meaning. More narrowly populus
signifies the masses of citizens in contrast with the magistrates or with the
senate.[1009] In the latter sense it cannot be said that the populus was from
the beginning sovereign. The Romans themselves of later time understood

that in the regal period the senate had the wisdom to advise, the king
possessed the imperium, whereas the people enjoyed but a limited degree of
freedom, right, and power.[1010] Their condition was not liberty but a
preparation for it.[1011] Their assembly, like that of other early Europeans,
had no power of initiative; it met only when summoned by the king, and
could consider those matters only which the king brought before it. Its
object must have been chiefly to receive information and to witness acts of
public importance. In no case did the king call upon the assembly for
advice; counsel belonged exclusively to the wise elders, who composed the
senate;[1012] and should he wish to instruct the people in the merits of a
proposed measure, he would himself address them and perhaps invite the
most respected senators or his most trustworthy supporters among the
private citizens to give the masses the benefit of their wisdom.[1013] In other
than judicial assemblies the privilege of speaking must have been sparingly
granted.[1014] Finally no elective or legislative act of the curiae was valid
without the authorization of the senate (patrum auctoritas).[1015]
With reference to the specific rights of the assembly, Dionysius[1016]
states that Romulus granted the commons three prerogatives, (1) to elect
magistrates, (2) to ratify laws, (3) to decide concerning war, whenever the
king should refer the matter to them. Livy’s[1017] stricture on the absolutism
of Tarquin the Proud implies, too, that constitutionally the assembly should
have had power to decide on peace and war. But stress should be laid on the
admission of Dionysius that probably all the questions above enumerated,
or at least those of peace and war, were referred to the assembly at the
pleasure only of the king—that the decision of them was not a right of the
people, but a concession on the part of the sovereign.[1018] Still more
important, these generalizations are in great part invalidated, as Rubino[1019]
has shown, by the testimony of their authors. When either refers to
individual cases of treaty-making under the kings, he never connects the
assembly with the proceedings.[1020] It is significant, too, that the formula
of treaty makes the king the only actor, taking no account of the people.
[1021]
Usually peace continued merely through the lifetime of the king who
contracted it,[1022] but a truce for a definite period was binding to the end,
even after his death.[1023] Under the republic to the time of the decemvirs
the treaty-making power resided in the consuls and senate.[1024] Ordinarily

either a senatus consultum empowered the magistrates to use their
discretion[1025] or sanctioned the agreement when made.[1026] More rarely
the senate treated directly with ambassadors from the enemy.[1027] The
clamor of the plebeians sometimes prevailed upon the senate to negotiate
for peace;[1028] and at other times it was merely by accident that the people
heard of the conclusion of a treaty.[1029] After the decemviral legislation the
plebeian assembly of tribes slowly acquired the right of ratification;[1030] in
fact it was not till the Second Samnite war that their vote came to be
essential.[1031] Among the archives devoted to treaties and alliances,
accordingly, senatus consulta and plebiscites alone are mentioned.[1032] The
very fact that in the later republic the ratification of treaties belonged
exclusively to the tribal assembly[1033] proves that it was an acquired right
of the people; for we may set it down as a fixed principle that the curiae and
the centuries yielded none of their prerogatives to the tribes.[1034]
As regards the right of the people to declare war a distinction must be
drawn between defensive wars, which, admitting neither choice nor delay,
[1035]
could not be referred to their decision, and aggressive wars, which
were in the option of the state to undertake or avoid. Yet even in the case of
offensive wars, though the approval of the people was doubtless often
sought, they exercised under the kings and in the early republic no real
right. When the king or magistrate felt that Rome had suffered injury from a
neighboring state, he despatched an ambassador to seek reparation. If the
demand was not complied with, the ambassador, calling Jupiter and the
other gods to witness the injustice, added: “But we shall consult the elders
in our own country concerning these matters, to determine in what way we
may obtain justice.” When the messenger had returned to Rome and had
made his report, the king consulted the senate substantially in these words:
“Concerning such matters, differences, and disagreements as the pater
patratus of the Roman people, the quirites, has conferred with the pater
patratus of the ancient Latins and of the ancient Latin peoples—which
matters ought to be given up, performed, discharged, but which they have
neither given up nor performed nor discharged—declare,” said he to the
senator whose opinion he wished first to obtain, “what you think.” Then the
elder thus questioned replied, “I think the demand should be enforced by a
just and pious war; and therefore I consent to it and vote for it.” Then the

rest were asked in order, and when a majority agreed in this opinion, war
was thereby voted.[1036] In all this account there is no mention of the
people; but afterward when the fetialis reached the border of the enemy’s
country, and pronounced the formula for the declaration of war, he included
a statement that the populus Romanus had ordered it: “Forasmuch as the
populus Romanus of the quirites have ordered that there should be war with
the ancient Latins, and the senate of the populus Romanus of the quirites
have given their opinion, consented, etc., I and the populus Romanus
declare and make war on the peoples of the ancient Latins.”[1037] In this
connection, as in all formulae applying to international relations, populus
means not the assembly but the state; hence the use of the word cannot be
taken as evidence of the existence of a popular right to declare war.[1038]
Besides this formula we have in support of such a right the general
statement only of Dionysius and the implied idea of Livy, referred to above,
[1039]
neither of which is in itself of especial weight. On the other hand the
individual kings seem to have been free to make war at their discretion. The
fact that peace and war are represented as depending upon the character and
inclinations of the king[1040] further establishes the real view of the Roman
historians. In a succeeding chapter[1041] it will be made clear that not till
427 did the centuriate assembly acquire the right to declare an aggressive
war; probably not till some time afterward was this right established as
inalienable. Previous to that date the warriors, perhaps in a contio, were
occasionally called on to give their approval, doubtless, as has been
explained above,[1042] to increase their enthusiasm for the war.
With reference to the legislative activity of the assembly under the kings,
it is necessary to call attention to the fact that among all peoples in the
earlier stages of their growth law is chiefly customary.[1043] At the time of
her founding Rome inherited from the Latin stock, to which her people
mainly belonged, a mass of private and public customs, which, owing their
existence to no legislative power, were the result of gradual evolution.
Under such conditions, as in Homeric Greece, the king or chief settled
disputes in accordance with these usages, though in the general belief his
individual judgments came directly to him from some god. The Homeric
king received his dooms—θέμιστες—and even his thoughts from the gods.
[1044]
The mythical or semi-mythical legislators of Greece, as Minos,
Lycurgus, and Zaleucus, were given their laws by revelation. In like manner

Numa, who may be considered a typical legislator for primitive Rome,[1045]
received his sacred laws and institutions from the goddess Egeria;[1046] and
Romulus, the first great law-giver,[1047] was a demi-god, who passed
without dying to the dwelling-place of the immortals.[1048] Roughly
distinguished, Romulus was the author of the secular law, Numa of the
sacred.[1049] In general the Romans of later time looked back to their kings,
the founders of their state,[1050] as the authors not only of their fundamental
laws and institutions but even of their moral principles.[1051] Doubtless the
Roman view of the ancient king is an image of the republican dictatorship,
of the extraordinary magistratus rei publicae constituendae, of the consul
freed from his various limitations;[1052] but the picture, stripped of the
distinctness which came with the gradual formulation of constitutional
usage, is, as comparative study shows, true to the primitive condition which
it aims to represent.
From this early conception the idea of human legislation gradually
emerged. Not daring on his own responsibility to change a traditional usage
which the people held sacred, the magistrate found it expedient to obtain
their consent to any serious departure,[1053] with a view not to legalizing the
proposal, but to pledging the people to its practical adoption. When and
how the primitive acclamation gave way to the orderly vote of the comitia
curiata cannot be ascertained from the sources.[1054] After this stage was
reached, the transaction between king and people had the following form: “I
ask you, quirites, whether you will consent to, and consider it right, that T.
Valerius be a son to L. Titus as rightfully and legally as if born of the father
and mother of the family of the latter, and that the latter have the power of
life and death over the former as a father over his son. These (questions) in
the form in which I have pronounced them, thus, quirites, I ask you.”[1055]
The magistrate brought his formulated request before the people (legem
ferre), who accepted it (legem accipere); the question (rogatio) was directed
not to the assembly as a whole but to the component citizens, who
individually replied ut rogas, “yes,” or antiquo, “no.”[1056] By this
procedure the citizens bound themselves to the acceptance of the
proposition on an oral promise, which was the strongest form of obligation
known to them. Herein is involved the fundamental idea of lex, which was
not a command addressed by the sovereign to the people or a contract

between ruler and ruled, but an obligation which the citizens took upon
themselves at the request of the magistrate.[1057] The verb iubere, which
designates the people’s part (populus iubet) in the passing of laws and
resolutions, did not originally have the meaning “to order,” which belonged
to it in the age of Cicero. Some have derived it from ius habere, “to regard
as right;”[1058] others from judh, an extension of the root ju, “to bind.”[1059]
In either case it seems to mean no more than to accept or hold as right or as
binding. In its widest sense lex denotes any obligation which one party
takes upon himself on the offer of another. In this meaning it may apply to a
business contract,[1060] in which alone the obligations are reciprocal, to the
instruction imposed by a superior magistrate upon an inferior,[1061] to the
auspicium which the magistrate formulates and the god accepts,[1062] to the
ordinance which the subject, without being consulted, receives willingly or
unwillingly from the ruler (lex data),[1063] as well as to the statute
established by the question of the magistrate and the affirmative answer of
the citizens (lex rogata). The leges of the community, with which alone the
present discussion is concerned, were distinguished as publicae.[1064] A lex
of the kind was not necessarily general,[1065] but applied as readily to an
individual citizen[1066] as to the entire body, to a declaration of war,[1067] or
the banishment of a citizen,[1068] as well as to a universal rule of conduct. In
the earlier time the lex rogata, or simply lex, seems to have designated any
act of an assembly, elective or judicial as well as law-making in the modern
sense.[1069] But in the time of Cicero it had come to mean any act of an
assembly which was neither an election nor a judicial decision,[1070] and in
the latter sense the word is used in this volume.
The acceptance of a proposition by the citizens obligated themselves[1071]
but not the government. The king, who retained office for life and was
irresponsible, could not be held amenable to law; against a tyrannical ruler
the only resource was revolution. Although the republican magistrates
possessed remarkably great power, as temporary functionaries they
belonged to the people, along with whom they were bound by the laws.
[1072]

To the end of the regal period the legislative activity of the people
remained narrowly restricted. The body of leges regiae, described as curiate

by Pomponius[1073] on the supposition that they were passed by the
assembly under royal presidency,[1074] was little more than the ius
pontificum—the customary religious law—with whose making the curiae
had nothing to do.[1075] If the king wished to admit new citizens,[1076] erect
public works, levy forced labor on the citizens,[1077] reform the military
organization,[1078] punish a man with chains or death,[1079] make a treaty, or
even declare an offensive war, no power compelled him to submit the
measure to the citizens. Although he must often have found it expedient to
engage their coöperation in national enterprises, or more rarely in a legal
innovation,[1080] it may be stated with confidence that before the beginning
of the republic the curiate assembly had not acquired the right to be
consulted on any of these matters—that its slight activity in legislation and
administration was a concession from the king rather than a right; for under
the republic such activity, gradually increasing, belonged to the centuries
and the tribes. We may accept without hesitation the principle that in form if
not in substance the curiae retained all the powers which they had ever
actually possessed.
Judicial business, which no one has ever assumed to be a primitive
function of the Roman assembly, needs no long consideration here. Among
the early Indo-Europeans the settlement of disputes and the punishment of
most crimes were in the hands of the families and brotherhoods; only
treason and closely related offences were noticed by the state; and these
cases were tried by the king in the presence of the assembly.[1081] The
religious ideas attaching to crime and punishment[1082] in early Rome
suggest that the priests had the same connection with these matters there as
among the Celts and Germans. That condition yielded to the growing
authority of the king, who is represented by the ancients as wielding an
absolute power of life and death over his people and as allowing in capital
cases an appeal to the assembly at his own discretion.[1083] From the general
conception of the relation between king and assembly as established in this
chapter, it is necessary to infer that if the people had any claim to a share in
the jurisdiction, it must have been slight as well as vague, and one which
they were in no position to enforce.
A review of the individual kings might give the impression that an act of
the assembly was unessential to filling the regal office. Not only were

Romulus and Tatius kings without election,[1084] but according to Livy[1085]
Numa’s appointment was made by the senate alone; and Servius ruled long
and introduced his great reforms before his election.[1086] Tarquin the Proud
to the end of his reign was neither appointed by the senate nor chosen by
the people.[1087] From these four or five instances of kings who ruled
without election, as well as from the fact that both the dictatorship—a
temporary return to monarchy—and the office of rex sacrorum—the
priestly successor to the monarch—were filled by appointment, we might
infer that the kingship was not elective.[1088] But on the other hand the word
interregnum, which could not have been invented in the republican period
and which involves the idea of election, as well as the general custom of
choosing kings among primitive European peoples, may be added to the
authority of our sources[1089] in favor of an elective monarchy in earliest
Rome. The nomination of the king by the competent person was perhaps
acclaimed in a contio in some such way as among the early Germans. Such
an election, we may suppose, was in the beginning legal without further
action on the part of the people. But the accession of a king was a
momentous event in the life of a generation—far more important than the
annual declaration of war upon a neighbor—and the advantage of a formal
vote of the curiate assembly, after its institution, was obvious both to the
king and to the sacerdotes; it gave to the former the solemn oral pledge of
obedience from the citizens, and to the latter an opportunity to influence the
proceedings through the auspices and through the manipulation of the
calendar.
Under this system the king after his appointment by his predecessor or by
the interrex, and after the acclamation in contio if such action took place,
convoked the curiae on the first convenient comitial day of his reign,[1090]
having held favorable auspices in the morning, and proposed to them a
rogation[1091] in some such form as the following: “Do you consent, and
regard it as just and legal, that I, whom the populus has designated king,
should exercise imperium over you?” This rogation, answered affirmatively
by a majority of the curiae, became a lex curiata de imperio.[1092] The
informal acclamation, if it was the custom, must have disappeared in time,
and the passing of the curiate law was looked upon as the election proper.
[1093]

Concessions to the people develop into popular rights. The citizens,
deeply interested in the choice of a man who for the remainder of his life
was to represent their community before the gods, lead them in war, and
exercise over them the power of life and death, claimed as their first active
political right the ius suffragii in the passing of this lex curiata de imperio.
Hence after the institution of the republic and of the comitia centuriata, the
curiae clung obstinately to this inalienable prerogative.[1094]
The development of the elective process outlined above is offered in
explanation of the curious phenomenon that under the republic, while all
other acts of the centuriate and tribal assemblies required no confirmation
by the curiae, elections by these assemblies did require such a sanction.
This explanation is the only one proposed which accords with the Roman
interpretation of the peculiarity. According to Cicero it was provided that in
the case of all elective magistrates the people should vote twice on each that
they might have an opportunity to correct what they had done, if they
repented of having conferred an office on any person. In the case of the
censors this second vote was cast in the comitia centuriata; all other elective
magistrates received it in the curiate assembly.[1095] Rubino[1096] and others
have objected that Cicero’s interpretation of the curiate law is biassed by his
desire to contrast the essentially antipopular character of the demagogue
Rullus,[1097] who by the terms of his agrarian law would deprive the people
of their right to vote even once in the election of officials, with the wise and
moderate statesmen of old, who were so devoted to the people as to allow
them two opportunities to express their choice in the case of each
magistrate. The orator, it is urged, could not himself know the original
intention of the usage; and his interpretation is contradicted by the fact that
the person who proposed the lex curiata was already a magistrate, the
voting on this lex being subsequent to the election and forming no part of it.
[1098]

In favor of Cicero’s interpretation it may in the first place be stated that
he was not simply offering a conjecture as to the original intention of the
usage, but was interpreting the formula of the law as it existed in his own
day. There would be no point to his interpretation unless the formula ran
somewhat like that of an election; and he affirms definitely that the law
bestows the magistracy upon a person who has already received the same
office from other comitia—that it is, in other words, a second bestowal of

the office.[1099] That this interpretation is not a mere invention of Cicero is
proved by a statement of Messala[1100] that the magistracy in the strict legal
sense of the term is granted by the curiate law. And the point maintained by
Messala is further confirmed by that article of the agrarian rogation of P.
Servilius Rullus which provides that the decemviri agris adsignandis may, if
necessary, dispense with the curiate law and yet be “decemvirs in as legal a
sense as are those who hold the office according to the strictest law.”[1101]
In other words, the person who has been elected by the comitia centuriata or
tributa is a magistratus, though not a magistratus iustus or optimo iure
(optima lege); the completion of all formalities, ending with a second
election (by the curiae), is essential to the latter.
Optimo iure requires explanation. It often signifies “with perfect justice,”
“most deservedly.”[1102] Closely related to this meaning is that of “perfect
formality,” as in making a bequest[1103] or in creating a sacerdos[1104] or a
magistrate.[1105] In this sense optimo iure is interchangeable with optima
lege. Developed in another direction, either phrase readily gives the idea of
completeness or perfection of title, not only to property,[1106] but also to
office.[1107] One who holds a perfect title to a property, or has been granted
a civil status[1108] or an office[1109] in a perfectly legal way, necessarily
enjoys all the immunities, honors, and powers inherent in such absolute
condition. To indicate that due legality has been observed in the creation of
a magistrate, and that the latter has accordingly complete possession of his
office, and of all the honors and powers belonging to it, the phrase ut qui
optima lege sunt, erunt is often inserted in the formula of appointment or
election. These words continued to be used, for example, in the creation of
the dictator as long as his power remained absolute, but after it became
subject to appeal, they were dropped.[1110] The author of the act was at the
same time author of the condition attaching to it expressed by the phrase
under consideration: in the appointment of a dictator it was the consul; in
the creation of a promagistrate or the assignment of a province it might be
the senate.[1111] Laws must often have contained provisions that the
magistrates created under them should be ut qui optima lege.[1112] The
Servilian bill most probably included an article of the kind for the
decemviri agris adsignandis to be elected under it. But as the title to an
office was impaired by any informality in the elective process, and as

Servilius foresaw that the lex curiata might be prevented by tribunician
intercession or other cause, he inserted in his bill a further provision,
referred to above,[1113] that the decemviri might be officials optima
lege[1114] even without the curiate sanction. From what is here said it is
clear that the condition of iustus or optima lege was not obtained for a
magistrate by the passing of the curiate act alone, but rather by due
attention to all formalities,[1115] which were brought to completion by that
act.
The formula for the curiate law, in addition to its resemblance to that for
elections, must have contained some reference to the imperium, as we may
infer from the frequent designation of the law as a lex de imperio by Cicero.
From this phrase modern writers infer that the curiate act conferred the
imperium upon newly elected magistrates. The question whether it granted
to a magistrate powers which he did not already possess will be considered
below. For the present it is enough to state that in no instance do the
ancients speak of “conferring” the imperium by the curiate law or of
deriving the imperium from that law by any process whatsoever. But
mention is made of conferring the imperium by a decree of the senate or by
the suffrages of the people in the centuriate or tribal assembly[1116] and of
confirming it by the curiate law.[1117]
The consuls and the praetor were elected by the centuries, and their
imperium was sanctioned by the curiae. The dictator, too, was obliged to
carry a curiate law.[1118] But the quaestors, the curule aediles, and other
inferior magistrates, after their election by the tribes, did not themselves
convoke the curiae for sanctioning their election; the lex was proposed in
their behalf by a higher magistrate.[1119] As the origin of this custom we
may suppose that the kings, and after them the higher magistrates of the
early republic, used to ask the people for a pledge of loyalty not only to
themselves but also to their assistants, and that this custom continued even
after they had come to be elective magistrates. To functionaries who lacked
the imperium the expression lex de imperio could not apply; lex de
potestate, though not occurring in our sources, would be the appropriate
phrase.
It has generally been assumed that the curiate law bestowed a power in
addition to that received through election.[1120] Something can in fact be

said in favor of this view. We are told that the newly elected magistrate
could attend to no serious public business till he had secured the passage of
the act:[1121] till then the praetor could not undertake judicial business; the
consul could have nothing to do with military affairs[1122] or hold comitia
for the election of his successor.[1123] Some of Cicero’s contemporaries
asserted that a magistrate who failed to pass the law could not as
promagistrate govern a province.[1124] Or if without a curiate law he made
the attempt, he would be obliged to conduct the administration at his own
expense;[1125] and if as promagistrate he gained a victory in war, he was
denied a triumph.[1126] Under such conditions it might well be said that a
magistrate could engage in no serious public business before he had carried
for himself the sanctioning law. But practice diverged widely from these
rules. An act containing a provision for the election of functionaries might
include a dispensing clause to the effect that the persons elected shall, in the
lack of a curiate law, “be magistrates in as legal a sense as those who are
elected according to the strictest forms of law.”[1127] Yet even without this
special provision the magistrate regularly attended to much business before
passing the law. The first public act of the consul, praetor, or other
magistrate was to take the auspices, to determine whether his magistracy
was acceptable to the gods;[1128] and another auspication was held for the
meeting of the curiae.[1129] It was customary, too, for the consul to make his
vows to the Capitoline Jupiter and to hold a session of the senate, both of
which acts had to be auspicated.[1130] These facts disprove the theory that
the curiate law conferred the auspicium. In the first session of the senate
here mentioned not only religious affairs but civil and military matters of
great importance were discussed and finally arranged, all of which business
was regularly managed without a curiate law.[1131] As to other
administrative acts it is probable that the want of a lex curiata never
hindered the performance of necessary business civil or military. In case of
danger to the state the interrex, who wholly lacked the curiate law, or the
consul before passing the law could doubtless take command of the army;
[1132]
and it is significant that the unlimited imperium and iudicium were
granted the magistrates not by the curiae but by the senate.[1133] The law
was indeed considered indispensable to the dictator in 310.[1134] It is
generally assumed by the moderns that C. Flaminius, consul in 217, lacked

the law;[1135] their reason is the statement of Livy[1136] that he entered upon
his office not at Rome but at Ariminum. The fact, however, that in this year
he carried a monetary statute before his departure for the war[1137] proves
that he began his official duties at Rome, and that Livy’s tirade to the
contrary is empty rhetoric. Probably because he departed without attending
to the usual auspices, his political opponents were unwilling to admit that
he had entered on his office. But the army obeyed his command, his name
remained in the fasti as consul, and his monetary law continued in force.
Livy, while complaining at length of his failure to take the auspices, says
nothing of the curiate law. His silence is significant.[1138] We cannot be
certain that the lex curiata was not passed in his case; but we have no right
to imagine that it was not and then draw far-reaching deductions from our
fancy.[1139]
A more valuable instance is that of L. Marcius, elected propraetor by the
army in Spain in 212.[1140] Although he could not have had a lex curiata, the
senate, while censuring the election because it transferred the auspices to
the camp, did not make the want of the law a ground for declaring the
magistracy illegal.[1141] A still more famous case is that of the magistrates
of the year 49, who with the Pompeian party fled from Rome before
carrying a lex curiata, and yet were not prevented by this circumstance from
holding military commands during their year of office or from continuing in
command into the following year as promagistrates.[1142] A further instance
is that of Pomptinus, praetor in 63, who had no curiate law; nevertheless as
propraetor in 61 he governed Narbonensis where he gained a victory over
the Gauls. This fact, too, is evidence that the want of the law did not in
practice debar from military commands. From 58 to 54 he waited outside
the gates of Rome for a triumph. The senate would not grant it and some of
the magistrates opposed his effort to obtain it. The privilege was at last
given him by the comitia under pretorian presidency.[1143] Although the
want of the law involved him in inconvenience, he finally accomplished his
purpose without it. Appius Claudius, consul in 54, insisted that, should he
fail to carry the sanctioning act, he should nevertheless, since he was in
possession of a province decreed the consuls of his year in accordance with
the Sempronian plebiscite, have imperium by virtue of a Cornelian statute
until such time as he should re-enter the city.[1144] The law of Sulla, to
which he referred, probably stated simply that the promagistrate was to

retain his imperium till his return to the city, without mentioning the curiate
law; and for that reason Appius believed the sanctioning act to be
unnecessary. Cicero, who informs us of this matter, inclines to the
interpretation of Appius. Our conclusion, accordingly, is that in practice, if
not in legal theory, the lex curiata, however convenient it may have been,
was not essential to the government of a province or to a military command.
It remains to consider whether it was indispensable to the holding of
comitia centuriata for elections. The same Appius Claudius maintained that
though a curiate law was appropriate to the consul, it was not a necessity,
[1145]
implying that without the law he was competent to perform all the
functions of that office. He and his colleague, therefore, who was equally
without the law,[1146] were ready to hold comitia for the election of
successors; and although party complications opposed the election, no one
objected to it on the ground that the consuls were incompetent; for
postponing the election they resorted to auspical obnuntiations[1147] and to
prosecutions of the candidates for bribery.[1148] Their competence to hold
the elective comitia is further established by the senate’s desire that they
should hold them at the earliest possible moment.[1149] The ultimate failure
of these consuls to elect successors was not owing to any one’s objecting to
their competence.[1150]
Scholars have attached great weight to the case of the magistrates of 49,
who with the Pompeian party, as has been stated,[1151] left the city before
carrying a lex curiata. Though desiring, in the Pompeian camp at
Thessalonica, to hold comitia for the election of successors, it was decided
that the want of the law rendered the consuls incompetent for the function.
[1152]
But the case requires careful examination. The Pompeians had with
them two hundred senators, enough in their opinion to constitute a quorum,
and their augurs had consecrated a place for taking auspices; so that it was
assumed that the populus Romanus and the entire city were now located in
the camp.[1153] All these circumstances clearly imply an intention to assume
a temporary transfer of the city of Rome to the camp and to conduct the
government in that place on the basis of this constitutional fiction. But
suddenly the execution of the plan was stopped by the plea that the consuls
had no curiate law! The difficulty, however, was not so serious as Dio
Cassius and the moderns have supposed. The assumption of the Pompeians
that the city of Rome temporarily existed in the camp implied as well the

existence of a pomerium, within which the consuls could legally have held
a meeting of the curiae.[1154] Or in case they felt any scruple about the
matter, the senate could have decreed the consuls a dispensation from the
law for the purpose of holding the elections. That they allowed a mere
formality to baulk them is out of the question. The whole situation is made
clear by the understanding that the consuls themselves, or more probably
Pompey, did not wish elections to be held or a civil government established
in the camp; such a proceeding would have disturbed still further the
discipline of the army and would have roused jealousies inimical to the
cause. On this interpretation the want of a law, especially as it has the
appearance of an afterthought, was a mere pretext.
We have seen promagistrates whose election to their respective offices
had not been sanctioned by the curiae governing provinces and holding
military commands; we have seen consuls who lacked the curiate sanction
attending with less inconvenience to all their official duties. The same
looseness characterized the application of the law to minor officials. The
want of the sanction legally involved curule aediles, quaestors, and all other
officials who lacked the right to convoke the curiae; and yet it is impossible
that in 54, for instance, when the consuls failed to pass the law, the curule
aediles and the quaestors should have remained inactive through the entire
year without leaving in our sources some trace of the disturbance caused by
the suspension of their administrative functions. Dio Cassius states that no
judicial process could be undertaken before the enactment of the law;
nevertheless Clodius as aedile in 56 prosecuted Milo before the people prior
to the vote on the sanctioning act.[1155] The quaestors entered office
regularly on December 5;[1156] and as the curiate law was carried for them
by the consuls, they were necessarily in official duty for some time every
year before their election could be sanctioned. It seems clear that ordinarily
one curiate law was passed each year, under the joint presidency of the
consuls and praetors, for all the officials who required it.[1157] If that is true,
a postponement of the law, or a failure to pass it, affected all the magistrates
of the year.
The question as to the meaning of this wide divergence between
constitutional theory and actual practice can find an answer only in the
history of the curiate assembly. For a time after the founding of the republic
it remained politically important. From the institution of the plebeian

tribunate (494) to the enactment of the so-called law of Publilius Volero
(471) the curiate assembly elected tribunes of the plebs.[1158] In 390,
according to Livy,[1159] it voted the restoration of a citizen from exile.
Rubino[1160] maintained that this assembly continued to be a real gathering
of the people to the year after the battle of Cannae, 215, when the
exigencies of the war with Hannibal brought into being a statute whereby
the curiate act was passed by a vote of thirty lictors as the representatives of
their respective curiae; in consequence the sanction was reduced to a
formality.[1161] The passage in Festus on which his theory depends is
seriously mutilated; and his attempted restoration is objectionable chiefly
(1) because it required no statute to keep the people from attending the
comitia curiata,[1162] (2) because without a statute a resolution of the
assembly was valid, if each voting division was represented by a single
person,[1163] (3) because the measure, accordingly, to be a relief to existing
conditions, must have freed the commander rather than the men from the
necessity of going to Rome to enact the curiate law. Whatever may be the
true reading,[1164] we have a right to infer from the extant fragment (1) that
in the year mentioned, owing to the nearness of Hannibal, something was
done to relieve officers in the field from the necessity of coming to Rome to
propose the law for themselves, (2) that the regulation was permanent.[1165]
It is known that the consul Q. Fabius Maximus presided at the consular
elections for 214.[1166] He and M. Claudius Marcellus, who as proconsul
was at the time in command of an army, were elected.[1167] Down to this
time the custom had probably been for men who were reëlected to an office
or who passed from a promagistracy to the corresponding magistracy, or the
reverse, to reënact the lex curiata. But we may suppose that after the
election of 215 Fabius, fearing that both he and Marcellus might be absent
on military duty at the opening of their official year, secured the passage of
a measure, most likely a senatus consultum,[1168] which exempted from the
need of repeating the curiate law holders of the imperium who were making
the transition above described. In consenting to the arrangement the senate
was making a great sacrifice to the exigencies of the situation. For to
maintain control over the commanders it had insisted that they should begin
their terms with all due formality at Rome.[1169] The lex curiata had proved
a material help to this end. But now the person already in command might

continue from year to year at his post, relieved of the need of coming to the
capital, where he would be temporarily subject to senatorial control.
This provision of 215 was therefore an important step in the development
of the imperium; and at the same time it tended to destroy the little
importance still attaching to the curiate law. It seems to have been after this
event and partly in consequence of it[1170] that the comitia curiata, which
had long been declining, became at last a mere formality, attended by none
but three augurs as witnesses to the proceedings[1171] and thirty lictors,[1172]
who meekly[1173] cast the votes in obedience to the command of the
presiding magistrates.[1174] It is a noteworthy fact that whereas the
statesman Cicero has much to say of the curiate law, Livy and Dionysius
make little reference to it. Our conclusion must be that it was more
important in the late republic than in the earlier time. Probably it nearly fell
into disuse after 215, to be revived some time before Cicero. Its
rehabilitation was the work of the optimates, for we find the senatorial party
chiefly interested in maintaining it during the age of Cicero. Since the lex
curiata, subject as it was to impetrative auspices and to obnuntiations,
correlated closely with the Aelian and Fufian statutes, we may reasonably
connect its revival closely with their origin. Cicero[1175] tells us accordingly
that the comitia curiata have continued merely for the sake of the auspices.
The curtailment of the power of this assembly is analogous to the
curtailment of the power of the king; as the latter was reduced, in the rex
sacrorum, to a shadow continued merely for a religious purpose, the curiate
comitia were likewise reduced to a shadow maintained in appearance
merely for keeping up an ancient custom and for the auspices connected
therewith,[1176] but in reality as a part of the religious machinery operated
with more or less effect for controlling refractory office-holders. During the
age of Cicero the senate strove to uphold its theory of the necessity of the
law, while individuals in office and even the entire group of magistrates for
the year looked upon it as appropriate indeed but unessential to their
functions. At its best the theory could be but partially realized in practice.
Naturally the lictors never refused to vote the lex curiata, but it was often
prevented or delayed by the intercession of the plebeian tribunes.[1177] As
we hear nothing of such action of the tribunes in the early republic we may
well conclude that it was a late usurpation. Their veto could be offset by a

special resolution of the people for dispensing the persons elected from the
need of the curiate sanction.[1178] In destroying the tribunician power Sulla,
perhaps consciously, strengthened the lex curiata as a weapon in the hands
of the senate. He did not treat the subject, however, with his usual precision;
for in 54 we find Appius Claudius appealing to a Cornelian law in
justification of his intention to govern a province without the sanction.[1179]
The procedure of Appius must have robbed the sanctioning act of the little
vitality which it still possessed. With the downfall of the republic it fell
completely into disuse.[1180]

I. Comparative View: Spencer, H., Principles of Sociology, ii. chs. viii, ix; Post, A. H.,
Grundlagen des Rechts, 130-6; Die Anfänge des Staats- und Rechtsleben, 113 f.; Jenks, E., History of
Politics, chs. ix, xi, xii; Schrader, O., Reallexikon, 923-5; Sprachv. u. Urgesch. ii³ (1907). 376; Leist,
B. W., Alt-arisches Jus Gentium, see index, s. Jus; Alt-arisches Jus Civile, i. 337 ff., 368 ff. (fas, ius,
lex); Hirt, H., Indogermanen, ii. 522-31 (fundamental ideas of right and law); Brunner, H., Deutsche
Rechtsgeschichte, i. 128-32; Schröder, R., Lehrbuch der deutschen Rechtsgeschichte, 21-7; Cramer,
J., Verfassungsgeschichte der Germanen und Kelten (Berlin, 1906); Seeck, O., Geschichte des
Untergangs der antiken Welt, i. 212-4; Kovalevsky, M., Modern Customs and Ancient Laws of
Russia, chs. iv, v; Ginnell, L., Brehon Laws, ch. iv; Hermann-Thumser, Griech. Staatsaltertümer, 67-
9 (Homeric); 166-76 (Lacedaemonian); 504-38 (Athenian); Gilbert, G., Constitutional Antiquities of
Sparta and Athens, 50-2 (Lacedaemonian); 285-310 (Athenian); Buchholz, E., Homerische Realien,
ii. 24-7; Seymour, T. D., Life in the Hom. Age, 101-9; Moreau, F., Les assemblées politiques d’apres
l’Iliade et l’Odyssée, in Revue des études Grecques, vi (1893). 204-50; Finsler, G., Das homerische
Königtum, in N. Jahrb. für kl. Alt. ix (1906). 313-36; Fustel de Coulanges, Ancient City, 216 f., 244
ff., 329; Histoire des institutions politiques de l’ancienne France: La Gaule Romaine (1891);
L’invasion germanique (1891); La monarchie Franque (1888); Farrand, L., Basis of American
History, see index, s. Council; Bernhöft, F., Staat und Recht der röm. Königszeit, 145-56.
II. The Comitia Curiata: Schulze, C. F., Von den Volksversammlungen der Römer, 282-307;
Newman, On the Comitia Curiata, in Classical Museum, xx (1848). 101-27; Mommsen, Die
patricisch-plebejischen Comitien der Republik, in Röm. Forschungen, i. 140-50; Nichtexistenz
patricischer Sonderversammlungen in republikanischen Zeit, ibid. i. 167-76; Bürgerschaft und Senat
der vorgeschichtlichen Zeit, ibid. i. 269-84; Die lex curiata de imperio, in Rhein. Mus. N. F. xiii
(1858). 565-73; History of Rome, bk. 1. ch. v; Röm. Staatsrecht, i. 609-15; iii. 33-42, 316-21;
Obudzinski, Die Kuriat- und Centuriatkomitien der Römer; Kappeyne van de Coppello, J., Comitien,
60-86; Hallays, A., Comices à Rome, ch. i; Morlot, E., Comices électoraux, ch. ii; Soltau, W., Altröm.
Volksversammlungen, 37-106; Humbert, G., Comitia, in Daremberg et Saglio, Dict. i. 1374-7;
Liebenam, W., Comitia: I. Curiata, in Pauly-Wissowa, Real-Encycl. iv. 682-6; Curiata Lex, ibid. iv.
1826-30; Hüllmann, K. D., Ursprünge der röm. Verfassung, 96-8; Rubino, J., Röm. Verfassung und
Geschichte, 233 ff.; Madvig, J. N., Verfassung und Verwaltung des röm. Staates, i. 222-6; Lange, L.,
Röm. Altertümer, i. 396-413; Mispoulet, J. B., Institutions politiques des Romains, i. 194-203;
Willems, P., Droit public Romain, 49-54; Herzog, E., Röm. Staatsverfassung, i. 106-18, 1059-65;
Schiller, H., Röm. Alt. iv. 628 f.; Karlowa, O., Röm. Rechtsgeschichte, i. 48-54, 382-4; Greenidge, A.
H. J., Roman Public Life, 250 f.; Legal Procedure of Cicero’s Time, 297-307; Abbott, F. F., Roman
Political Institutions, 14 f., 18-20, 252 f.; Voigt, M., XII Tafeln, i. 97-124 (ethical laws, fas, ius, etc.);
Leges regiae, in Abhdl. d. sächs. Gesellsch. d. Wiss. vii (1879). 555-826; Bernhöft, ibid. 145-160;
Genz, H., Das patricische Rom, 51 ff.; Seeley, J. R., Livy, 62-70; Munderloh, Aus der Zeit der

Quiriten, 4 f.; Clason, D. O., Kritische Erörterungen über den röm. Staat, 1-30; Hoffmann, E.,
Patricische und plebeiische Curien; Nissen, A., Beiträge zum röm. Staatsrecht, 39 ff.; Le Jeune, M.
L., L’imperium des magistrats de Rome sous le République; Schwegler, A., Röm. Geschichte, i. 663-
7; Ihne, W., History of Rome, i. 113 f.; Peter, C., Geschichte Roms, i. 59 f.; Dunning, W. A., History
of Political Theories Ancient and Mediaeval, 107 ff.; Willoughby, W. W., Political Theories of the
Ancient World, ch. xvi; Nettleship, H., Contributions to Latin Lexicography, 497-500 (ius), 515-7
(lex); Rothstein, M., Suffragium, in Festschrift zu Otto Hirschfelds 60stem Geburtstage, 30-3;
Botsford, G. W., Lex Curiata, in Pol. Sci. Quart. xxiii (1908). 498-517.

CHAPTER X
THE ORGANIZATION OF THE COMITIA CENTURIATA

I. In the Early Republic

From the point of view of the Roman historians the centuriate assembly,
[1181]
planned by Servius Tullius, came into existence at the beginning of
the republic; its earliest act in their opinion was the election of the first
consuls[1182] and its earliest statute the Valerian law of appeal.[1183] Though
they could not know precisely when it voted for the first time, they were
right in understanding it to have been the basal comitia of the republic
during the patrician supremacy. It may not have been instituted till some
time after the downfall of the kingship,[1184] and it certainly did not reach its
full complement of a hundred and ninety-three centuries till more than a
hundred years after that event.
Through the early republic Rome was engaged in an almost unceasing
struggle for existence. The army was constantly in the field; and the consuls
from the praetorium issued their commands for the protection and the
government of the city. Their measures, after discussion in the council of
war, they must often have submitted to the approval of the army. The
military contio was sometimes summoned for exhorting the men,[1185] for
promising the reward of spoil in case of victory,[1186] for reprimanding as
well as for encouraging.[1187] On one occasion the master of horse, calling a
contio of soldiers, appealed to them for protection from the dictator,[1188]
and they replied with a shout that they would allow no harm to befall him.
[1189]
Thereupon the dictator summoned another contio to witness the court-
martial of the rebellious officer.[1190] On another occasion the consuls asked
the soldiers to decide a question by acclamation, and they obeyed.[1191] We
hear of the adjournment of a meeting on the motion of a military tribune.
[1192]
After a victory, honors and rewards were granted by vote of the
soldiers.[1193] For acclamation, the regular form of voting,[1194] was
sometimes substituted a division of the army to right and left for the sake of
silence.[1195] A military assembly, meeting at Veii, decided upon the

appointment of Camillus, then in exile, to the dictatorship, and despatched
the resolution to Rome.[1196] In the year 357 the consul Cn. Manlius held a
tribal assembly of his troops at Sutrium, and passed in it a law which
imposed a tax of five per cent on the manumission of slaves.[1197] Long
afterward the army in Spain elected a propraetor.[1198] It may be that much
other political business was decided by the army in the troublous times
which followed the overthrow of the kings. Although such acts were valid,
they were always of an exceptional nature, and they ran counter to the spirit
of the constitution, which granted to all the citizens, not to those merely
who chanced to be on military duty, a voice in the decision of such public
affairs as came before the people.
It is true that the centuriate assembly, having developed from the army,
showed pronounced military features. It could not be convoked within the
pomerium, for the reason that the army had to be kept outside the city;[1199]
before the reform it met ordinarily in military array under its officers and
with banners displayed;[1200] the usual place of gathering was the Campus
Martius; and no one but a magistrate cum imperio could under his own
auspices convoke it for the purpose of taking a vote.[1201] For these reasons
it was frequently, even in official language, termed exercitus.[1202] The use
of this word, however, should not mislead us into supposing that the
assembly was an actual army. Though Dionysius[1203] represents the first
meeting as armed—a mere supposition, apparently to account for its known
military features—the fact is that the citizens carried weapons to none of
the assemblies.[1204] Strictly, too, the centuriate gathering was termed
exercitus urbanus in contrast with the real army designated as exercitus
armatus or classis procincta.[1205] The facts thus far adduced amply warrant
us in refusing to consider the voting assembly an army.
But some imagine the censorial assembly for the assessment and
lustration of the citizens to have been an army.[1206] For this view they rely
upon Dionysius,[1207] who states that the people came armed to the first
lustrum, and upon an uncertain passage from the Censoriae Tabulae, quoted
by Varro,[1208] which possibly speaks of the citizens in the lustral assembly
as armati. If this word should be supplied in the passage, it might refer to an
inspection of arms of the men of military age;[1209] but that circumstance
would by no means imply that all who attended the lustrum were armed or

were liable to military duty. It is certain that as the census-taking had
primary reference to property for the purpose of apportioning taxes and
other burdens of citizenship, those only were summoned who were legally
capable of holding property in their own name. The list excluded all the
men “in patris aut avi potestate,” however liable they were to military duty,
[1210]
as well as the women and children.[1211] All such persons were
reported by the father or guardian. It included, on the other hand, many who
were exempt from military service on account of age, physical condition, or
want of the necessary property qualification. Hence the censorial assembly
could not have been identical with the army. Furthermore the centuriate
assembly was not a basis for the levy.[1212] On the contrary, the soldiers
were enrolled directly from the tribes.[1213] These facts warrant the
conclusion that the relation between the army and the assembly must have
been one of origin only; the organization of the assembly developed from
that of the army, but at no time was the political assembly an army or the
army otherwise than exceptionally or irregularly a political assembly. The
truth is that an army regularly officiating as a political body would require
for its explanation two revolutions—one to bring it into existence and
another to abolish it; but of both cataclysms history is silent.
The growth of the political from the military organization was somewhat
as follows. After the Romans had determined to use the centuries regularly
as voting units for the decision of questions not purely military, they
proceeded forthwith to extend the organization so as to include all the
citizens. For this purpose the men of military age who were free from duty
for the time being, or who had served the required number of campaigns—
sixteen in the infantry or ten in the cavalry[1214]—or who were exempt on
account of bodily infirmity or for any other reason, had to be admitted to
the junior centuries, thus materially increasing their number and making
them unequal with one another. In a state, too, in which great reverence was
paid to age the seniors could not be ignored. They were accordingly
organized in a number of centuries (84) equal to that of the juniors—an
arrangement which made one senior count as much as three juniors.[1215]
The mechanics who were liable to skilled service in the army[1216] were
then grouped for voting purposes in two centuries, that of the smiths and
that of the carpenters,[1217] based on the two guilds in which these artisans
were already organized.[1218] Authorities differ as to the classes with which

they were associated. Livy[1219] adds them to the first class. Cicero,[1220]
too, places a century of carpenters with that group, making no mention of
the smiths, whereas Dionysius[1221] assigns both centuries of mechanics to
the second class. The explanation of the difference of opinion seems to be
that information as to this point was not contained in the censorial
document from which the annalist (Fabius Pictor) drew his knowledge of
the earlier comitia centuriata; the Romans knew only by tradition that the
industrial centuries were associated in the assembly with one of the higher
classes. The weight of authority inclines in favor of the first class, and the
reason for the respectable place occupied by the mechanics is the high value
placed on their service in early time.[1222] In like manner the trumpeters
(tubicines, liticines) and the hornblowers (cornicines) were grouped each in
a century for voting in the comitia,[1223] also on the basis of their guild
organizations.[1224] The accensi velati, who as we are informed followed the
army in civilian dress and without weapons,[1225] also received a centuriate
organization. As to the number of centuries belonging to them opinion has
differed. Some, formerly including Mommsen,[1226] have assumed two.
Livy,[1227] however, gives but one century; Cicero[1228] seems to have only
one in mind; and in imperial time there was a single collegium, or century,
of accensi,[1229] probably a survival of the old political group. These
considerations led Mommsen to abandon his former view, to assume instead
a single century of the kind; and recent writers are inclined to follow him.
[1230]
Lowest in rank of the supernumerary centuries was that of the
proletarians.[1231] The government so designated those citizens who owned
no land,[1232] and hence were poor. They were exempt from military duty,
excepting in so far as they served with arms furnished by the state.[1233]
Though few in the beginning, their number gradually increased till in the
time of Dionysius[1234] it exceeded all the five classes together. At some
time in the early history of the comitia centuriata they were formed into a
century and given one vote,[1235] which was not counted with any class but
was reported after all the others. Dionysius[1236] wrongly speaks of it as a
sixth class. The existence of this century is due to the principle that no one
should be excluded from the right to vote on account of poverty.[1237]
Six supernumerary centuries have now been mentioned and the place of
three—the two industrial and the one proletarian—in the voting system has

been considered. With reference to the others Dionysius assigns the
musicians to the fourth class, Livy to the fifth. The settlement of this
question is aided by an examination into the total number of comitial
centuries of the fifth class. It is given as thirty by the sources.[1238]
Assuming this to be the correct number and adding to the sum of centuries
in the five classes (170) the six supernumerary centuries and the eighteen
centuries of knights to be considered below, we should have in all a
hundred and ninety-four, which would be one too many. In an earlier
chapter, however, the conclusion was reached that there were but fourteen
military centuries in the fifth class.[1239] Two of the thirty centuries assigned
to that class In the comitia centuriata must therefore have been in fact
supernumerary. If one was the accensi, what was the other? Most probably
it was the century of the tardy described by Festus,[1240] made up at each
meeting of those who came too late to vote in their own classes. Obviously
all writers who apply the discriptio centuriarum to the army view this
century, as well as that of the proletarians, with suspicion.[1241] The two
centuries of the accensi and the tardy should be included among, not added
to, the thirty of the fifth class.[1242] Having reached this result, it might
seem advisable for us to assume no further supernumerary centuries for the
fifth class, but to follow the authority of Dionysius in assigning the
musicians to the fourth. Or as the trumpeters preceded the hornblowers in
rank, it might be plausibly argued that the former belonged to the fourth and
the latter to the fifth. In this way a compromise could be effected between
Livy and Dionysius, and Livy’s three supernumerary centuries of the fifth
class could be explained. Absolute certainty is unattainable. The notion of
Dionysius that one century of musicians voted with the seniors, the other
with the juniors, and so of the mechanics,[1243] is erroneous; for the seniors
did not vote separately from the juniors.
In the centuriate assembly each of the six tribal troops of knights[1244]
had one vote, and was called, therefore, a suffragium. As the term centuria
had not previously applied to these groups, it was for a time withheld from
them in the comitia, the six divisions being known simply as the sex
suffragia.[1245] Afterward as new voting groups were added to the equites
they came to be called centuries, and thence the term extended to the old.
[1246]
The centuriate organization of the comitia did not demand the creation
of suffragia seniorum, to correspond with the centuriae seniorum of the

infantry, perhaps because the six votes in the comitia centuriata adequately
represented the whole number of patricians. As the equites originally
provided their own horses,[1247] they held their rank for life, not merely
through the period of service. After the state had undertaken to furnish
money for the purchase and keeping of the horses,[1248] the eques retained
his public horse, and consequently his membership in an equestrian century,
long after his retirement from active duty.[1249] The increase in the number
of equestrian votes was owing to the participation of plebeians in the
mounted service.[1250] From them twelve equestrian centuries were formed
for the centuriate assembly, and added to the six groups already existing.
This increase probably came about in the course of the fourth century,
accompanying or following the enlargement of the infantry from two to
four legions.[1251] Thus the total number of one hundred and ninety-three
centuries could not have been reached till shortly before 269.
The foregoing discussion has made it evident that from the time when the
comitia centuriata came into being, there were two centuriate organizations;
(1) the military, which continued as before till it changed to the manipular
formation,[1252] (2) the political, which developed from the military but
which was at no time identical with it.
Discriptio Centuriarum of the Comitia Centuriata

Old centuries of knights 6
New centuries of knights 12

Ratings in Asses
Classes Junior Centuries Senior Centuries
according to Livy

I 40 + 2 of artisans 40 100,000
II 10 10 75,000
III 10 10 50,000
IV 10 + 2 of musicians 10 25,000
V 14 + 1 of accensi
+ 1 of the tardy 14 11,000

Below the classes:

1 century of proletarians
SUMMARY
Knights 18
Seniors and juniors 168
Supernumerary 7
Total 193

Before the reform this assembly met in military array with banners
displayed, each company under its centurion.[1253] The voting was oral.
Probably it was at first by acclamation; if so the suggestion of individual
voting, as we find it in historical time, must have come from the orderly
military array, which offered itself conveniently for the purpose.[1254] The
centurions may originally have served as rogatores, to collect and report the
votes.[1255] Each century cast a single vote, which in historical time the
majority of its members decided.[1256] The voting proceeded according to
classes; the equites were asked first, hence their centuries were termed
prerogative (praerogativae), then the eighty centuries of the first class. If the
votes of these two groups were unanimous, they decided the question at
issue; as ninety-seven was a majority, they had one to spare from their total
number. If they disagreed, the second class was called and then the third
and so on to the proletarian century. But the voting ceased as soon as a
majority was reached, which was often with the first class; and it rarely
happened that the proletarians were called on to decide the issue.[1257] The
announcement of the prerogative votes greatly influenced the action of
those which followed.[1258]

II. The Reform

The study of the centuriate assembly begun earlier in the volume[1259]
and continued in the preceding part of this chapter shows it gradually
developing its organization during the fifth and fourth centuries b.c. The
main line of progress has been traced though details are unknown. The
growth of popular rights in the latter half of the fourth century gave a great
impetus to the activity of the assemblies in general, as is manifested in the
Genucian, Publilian, and Hortensian legislation. In 312 when the change
was made in the appraisements from land to money, many aerarii who had

voted with the proletarians must have been advanced to the higher classes.
[1260]
This step toward the democratization of the comitia centuriata,
following upon the reduction of the patrum auctoritas to a mere formality,
could not help adding new energy to the institution, leading to further
changes in a popular direction. The class ratings which are known to history
were established no earlier than 269.[1261] Two other more important
changes, which can be but approximately dated, must now be considered in
detail. They are (1) the abolition of the equestrian prerogative and the
introduction of the custom of drawing by lot a prerogative century from the
first class on each occasion before the voting began; (2) the division of the
citizens into classes and centuries within the several tribes. These two
innovations are commonly grouped together under the name of the
“reform.” As they have no necessary connection with one another, they
need not have been simultaneous. Livy’s narrative of the happenings of
396[1262] and of 383[1263] seems to imply that they had been introduced
before these dates.[1264] But the passages here referred to are uncertain; and
at all events they belong to a period in which the centuries may still have
been closely connected with the tribes.[1265] But should they be so
interpreted as to apply to the reformed centuriate assembly, they might still
be looked upon as historical anticipations for the reason that Livy’s[1266]
account of the year 296 has reference to a feature of the old organization.
This disposition of the three passages is supported by the following
consideration. Had the reform been introduced much earlier than 269, the
annalists would have assigned it to Servius Tullius, just as they assigned to
him thirty tribes (reached in 318), all thirty-five tribes (reached in 241), and
the census ratings in the sextantarian asses (established in or after 269);
[1267]
and in that case all memory of the original Servian system would have
been lost. The circumstance that we are acquainted with it in some detail is
proof of its survival into the third century b.c. In fact Livy’s[1268] chief
reference to the reform indicates that it was completed, if not undertaken,
after the number of tribes had been brought up to thirty-five (241). On the
other hand it came before the opening of his third decade (218), which takes
the new arrangement for granted.[1269] The contention is often made that
Livy must have given an account of the reform in his second decade (292-
219) now lost; and there is a universal agreement that the reform was
brought about not by statute, but by arbitrary censorial disposition.[1270] The

censor commonly assumed to be the author of the change is either Fabius
Buteo, 241, or Flaminius, 220.[1271] Against the latter may be urged the
silence of Polybius[1272] and Livy,[1273] who in speaking at length of his
opposition to the nobles makes no reference to this reform. In favor of
Fabius it may be said that in 241 the full number of tribes was completed;
and the name of the thirty-fifth, Quirina, corresponding to Romilia, the first
rural tribe, suggests that the Romans intended to create no more. In naming
the last tribe the censors seem to have had in mind the completion of the
new system, to each component part of which they apparently guaranteed a
definite share of political power, which would have been impaired by the
further creation of tribes.[1274]
A little reflection, however, will convince us of the impossibility of
assigning the reform to any one censor or to a definite date. Livy could not
have made much of it in the lost part of his history without leaving some
trace in the epitome, which mentions far more trivial matters.[1275] The only
explanation of the epitomator’s silence is that the reform was so gradual as
to escape marked attention. This view is supported by a strict interpretation
of Livy,[1276] who supposes the change to have come about naturally with
the increase in the number of tribes, and of Dionysius,[1277] who ascribes
the innovation, or a part of it, to no individual but to “certain powerful
forces.” A conclusion as to the date of the reform, to be acceptable, must
satisfy the conditions above mentioned. In earlier time, when there was a
single classis, the centuries were made up within the tribes; but this simple
system was rendered impossible by the increase in the number of classes.
[1278]
For convenience of administration the censors must soon after this
enlargement have begun an effort to reduce the discord to harmony. One
class may have been brought into agreement with the tribes more readily
than another, and thus the readaptation may have extended through many
lustra. The number of centuries probably did not long remain at one
hundred and ninety-three. It may have received its first increase above that
sum in 304, for instance, the date to which Niebuhr[1279] assigns the reform.
The process may have been far advanced in 241, the date preferred by a
majority of scholars, and completed by Flaminius in 220.[1280] The abolition
of the equestrian prerogative may likewise have been gradual; it may have
been retained in one class of comitial acts—elections or legislation, for
instance—longer than in another. The conclusion that the changes were

gradually introduced in the period from 304 to 220 would best explain all
the known facts.[1281]
As no description of the reformed organization has come down to us, we
are obliged to reconstruct it from the scant references of various writers. It
is to be noted first that the five classes continued in the new system.[1282]
They were still based on the census,[1283] and were called to vote in their
order as before.[1284] The distinction between juniors and seniors was
retained;[1285] and as these comitia were still called centuriata, the centuries
necessarily continued as the voting units.[1286] But the reform brought them
into direct relation with the tribes, which now served as a basis for the
division into centuries and for their distribution according to age and class.
On this point Livy[1287] remarks, “We ought not to wonder that the
arrangement which now exists after the tribes have been increased to thirty-
five, their number being doubled in the centuries of juniors and seniors,
does not agree with the total number instituted by Servius Tullius; for he
divided the city into four parts, ... which he called tribes.... Nor did those
tribes have any relation to the distribution and number of the centuries.”
From this passage we may infer (1) that in the reformed assembly the
number and distribution of the centuries depended closely upon the tribes—
a conclusion supported by other citations to be given hereafter, (2) that the
number of centuries was changed, although we are not distinctly informed
whether by diminution or increase. According to one interpretation the
number of tribes was doubled by the number of centuries of juniors and
seniors, and there were therefore seventy of these centuries, thirty-five
juniors and as many seniors, each century forming a half tribe. This view is
supported by passages in which the century bears the name of the tribe, as
Aniensis iuniorum,[1288] Voturia iuniorum,[1289] Galeria iuniorum,[1290] as
well as by those which in a more general way refer to voting or the
announcement of the votes by or according to tribes in the centuriate
assembly.[1291] It accords perfectly with other evidence that the century was
an integral part of the tribe.[1292] This is the view adopted by Niebuhr.[1293]
It is open, however, to the fatal objection of abolishing the classes, which in
fact continued through the republic, as has already been shown.[1294] He
does indeed allow for a first class comprising the country tribes and a
second class made up of the others;[1295] but this hypothesis is overthrown

by those citations which imply the continuance of all five classes,[1296] as
well as by those which make the census an element of the later
organization.[1297] Huschke,[1298] who places the reform in the earliest times
of the republic, adopts Niebuhr’s view as to the number of centuries; but
maintaining the continuance of the five classes,[1299] he considers them to
be groups of tribes, the seventeen old rural tribes being distributed as
follows: in the first class eight, in the second, third, and fourth respectively
two, in the fifth three.[1300] But bearing in mind that these tribes were
primarily local, we cannot at the same time regard them as census groups
without ascribing to them an impossibly artificial character. For this reason
the theory of Huschke should be rejected. To avoid this difficulty, while
retaining the classes, the assumption has been made that the classes were
subdivisions of the century, in other words that each century contained men
of every class. This view is invalidated by the fact that the centuries
continued to be divisions of the classes, which were still called to vote in
their order.[1301]
The assumption of a diminution in number having proved untenable, the
conclusion is that there was an increase.[1302] In view of the facts (1) that
the reformed organization rested on a tribal basis,[1303] (2) that the centuries
were divisions not only of the tribes[1304] but also of the classes,[1305] (3)
that the tribes could not have been divisions of the classes,[1306] it is
necessary to conclude that the classes were themselves divisions of the
tribes with the centuries as subdivisions. In other words, the work of
organization took place within the tribe: the members of a tribe were first
divided into five classes according to their wealth; within each class the
men were grouped on the basis of age into juniors and seniors,[1307] one
century for each within the several classes, making ten centuries of juniors
to the tribe, or in all three hundred and fifty tribal centuries, to which are to
be added eighteen centuries of knights and probably five supernumerary
centuries, amounting to a total of three hundred and seventy-three. This is
substantially the view of Pantagathus.[1308] Convincing evidence is afforded
by a group of inscriptions of the imperial period.[1309] From them we learn
that under the emperors the urban tribes comprised severally (1) a corpus
seniorum, (2) a corpus iuniorum, (3) the tribus Sucusana a corpus Iulianum,
and the Palatine and Esquiline each a corpus Augustale. Every corpus

consisted of several centuries. In the corpus Sucusana iuniorum were eight
centuries divided into two groups of five and three respectively, the first
group being evidently superior to the second. At the head of the century was
a centurio or curator.[1310] Eliminating the corpora which were named after
emperors and which must have been instituted in their time, eliminating
also the inferior centuries of the corpora seniorum and iuniorum, which
were undoubtedly added either by the emperors or by the late republican
censors, we have remaining five centuries to the corpus as it must have
stood in the period immediately following the reform. This result confirms
the view suggested by Pantagathus.
It was accepted by Mommsen in his Römische Tribus (1844) and in the
first seven editions of his History of Rome; but in his Römisches
Staatsrecht[1311] he has offered a radical modification: while holding to the
373 centuries, he maintains that they were so combined as to cast in all 193
votes. According to this theory the first class comprised 35 × 2 = 70
centuries, each with one vote, whereas the remaining classes together, made
up of 4 × 35 × 2 = 280 centuries, cast but 100 votes. How the centuries
were combined Mommsen does not presume to say. He considers it
possible, however, that for instance sixty of the seventy centuries of the
second class were grouped by threes and ten by twos, making twenty-five
voting groups in all. Had he attempted to follow out in detail the practical
working of the theory, he would hardly have offered it to the public. The
votes could not have been determined by a majority of component
centuries, for according to the theory some groups comprised but two. Or if
the group voted by individuals without regard to the component centuries,
the four lower classes were practically composed not of centuries but of
larger, nameless voting divisions.
His main support is the account of the centuriate organization given in
Cicero’s Republic,[1312] which speaks of a hundred and ninety-three
centuries, and which Mommsen[1313] believes to be a description of the
reformed organization. Cicero’s[1314] assumption that the essential facts
were known to the friends of the younger Scipio—the leader in the dialogue
—and the discrepancy in the number of centuries of the first class between
the Servian system as given by the annalists (Livy and Dionysius) and the
organization which Cicero describes[1315] are the chief points in
Mommsen’s favor. Against his interpretation it may be urged (1) that the

passage is exceedingly uncertain;[1316] (2) that Cicero makes Servius Tullius
the author of the organization which he describes; (3) that though the
reform affected the details of the comitial organization, the principle—a
distribution of the people according to ordines, census, aetates—remained
the same from the time of Servius to the time of Cicero, so that he could
assume that it was known to the hearers of Scipio; (4) that as to the
discrepancy in the number of centuries in the first class, on the assumption
that the text is correct, (a) Cicero, who was by no means infallible, may
have made a mistake,[1317] being in this case especially liable to error
because in the reformed organization the first class comprised seventy
centuries, or (b) in case Cicero is right, either (m) the annalists may be in
error in assigning eighty centuries to the first class, or (n) in an early stage
of transition from the old to the new organization the number of centuries in
the first class may have been cut down to seventy with a corresponding
increase of ten in some other part of the system; (5) that Mommsen’s theory
is refuted by the language of Cicero,[1318] who speaks of the voting
divisions of the four lower classes not as groups of centuries but simply as
centuries, the absence of a name for such a group being one of the strongest
arguments against its existence. Mommsen’s interpretation of the passage is
in brief too strained and unnatural to commend itself to the understanding.
Apart from its lack of support in the sources, an objection to the theory is its
extreme impracticability. Holding that juniors and seniors could not have
been brought together in the same voting divisions, and assuming that the
combinations were made by twos and threes and that the four lower classes
had an equal number of votes, Klebs has worked out the simplest
arrangement as follows:

Class Centuries Votes
I 70 One vote each 70
II 70 35 of seniors
8 in groups of 4 votes
two
27 in groups of 9 votes
three
13 votes
35 of juniors

2 in a group 1 vote
33 in groups of 11 votes
three
12 votes
Total 25
If the remaining classes are like the second, we shall have:
III 70 25
IV 70 25
V 70 25
Equites 18 One vote each 18
Supernumeraries 5 One vote each 5
Total 193
[1319]

This complex system would make the action of the centuriate assembly
exceedingly slow and difficult, and would be as useless as impracticable;
for if the object was to reduce the votes of the first class by ten and to make
the other classes equal, that end could have been easily attained by the
readjustment of numbers on the old basis, without the invention of this
awkward grouping, the like of which is not known to have existed in any
ancient or modern state. Such a reform, too, would bring out more clearly
than ever the inequality of rights in the comitia,[1320] and therefore could
not have been called democratic by Dionysius.[1321] It is contradicted also
by Livy,[1322] who distinctly states that the number of centuries was
changed. Lastly the objection must be made that the joining of centuries of
different tribes into voting units cannot be reconciled with the imperial
grouping of centuries of the same tribe into corpora,[1323] and is refuted by
the many citations which assume the voting or the announcement of the
votes to have proceeded according to tribes[1324] as well as according to
classes.[1325]
Lange,[1326] not thinking it necessary to preserve a total of a hundred and
ninety-three votes but accepting in the main the view of Pantagathus, tries
to bring the centuries into relation with the tribes by assuming that the
seventy half-tribes, severally comprising five centuries of juniors or seniors,
were given each one vote in the “concluding announcement”

(Schlussrenuntiation), this vote being determined by a majority of the five
component centuries. In like manner the eighteen centuries of knights were
grouped in divisions of three centuries each, so as to count six votes in the
final announcement, hence the name sex suffragia. The supernumerary
centuries were grouped in one or two voting divisions, so that in all
seventy-seven or seventy-eight votes were cast.[1327] As to the process, he
believed that after the prerogative the seventy centuries of the first class and
the eighteen centuries of cavalry voted simultaneously, and while their
votes were being counted the second class was voting, the votes, in his
opinion, not being announced as soon as known.[1328] This view as to the
announcement is contradicted by the sources,[1329] which clearly imply that
the reports were made public as they came in. Against his theory may be
urged also (1) the fact that no name existed for the half-tribe, which in his
opinion cast one vote in the closing announcement,[1330] as well as (2) the
fact that the sources give more than six votes to the equites in the late
republic.[1331] Lange is right, however, in understanding that the voting did
not now, as formerly, cease when a majority was reached, but continued till
all the centuries had voted.[1332]
A solution of the problem as to the order of voting suggested by
Klebs[1333] seems to satisfy all conditions. The centuries gave their votes by
classes, each being announced as soon as it was ascertained. Then when all
the centuries had voted, a count was taken by tribes in the order determined
by lot;[1334] and a second announcement, made in that order, decided the
election or other act of the people. Each candidate was declared elected
when a majority of votes was reached in his favor.
Regarding the supernumerary centuries our information is extremely
meagre. As it does not seem likely that influential corporations would be
robbed of a privilege they once enjoyed, we may reasonably believe that the
artisans, musicians, and accensi velati retained centuries of their own in the
reformed organization. Cicero,[1335] however, speaks of a single century of
artisans for his time. The two industrial colleges, which had existed from an
early age,[1336] seem to have been joined in one and to have continued into
the imperial period after nearly all the other guilds had been abolished.[1337]
When the two were united, they were probably reduced to a single vote in
the assembly. In like manner the liticines, or tubicines, and the cornicines

were united in one college of musicians[1338] and were probably given one
vote. The accensi velati, too, formed a college composed of wealthy
freedmen, freeborn, and even knights.[1339] We may well suppose that it still
possessed a vote in the centuriate assembly. Lastly may be mentioned the
century of proletarians and that of the tardy,[1340] which were as necessary
after the reform as before it.[1341] Although new centuries were added,
possibly by the later republican censors and certainly by the emperors,[1342]
the principle of the reformed organization remained unchanged.[1343]
In the reformed assembly the equestrian centuries ceased to be
prerogative.[1344] A century was drawn from the first class[1345] by lot[1346]
to take the lead in voting. Then came the remainder of the class, including
the equestrian centuries and the single century of artisans, eighty-eight in
all. In the announcement the votes of the equites were distinguished from
those of the class;[1347] and the sex suffragia, no longer exclusively
patrician,[1348] were reported after the other eighty-two. The inferior place
assigned to the suffragia was evidently to remove them far from their earlier
prerogative position so as to free the assembly from patrician influence.
Next the lower classes, among which other supernumerary centuries were
distributed as in the earlier republic, voted in order; and finally came the
summing up by tribes in the way described above. The old military array
gave place to a civilian grouping like that already established for the curiate
and tribal assemblies.[1349]

I. The Earlier Organization: the literature on this subject is essentially the same as for ch. iv.
II. The Reform: Schulze, C. F., Volksversamml. der Römer, 69 ff.; Huschke, Ph. E., Verfass. des
Königs Servius Tullius, ch. xii; Peter, C., Epochen der Verfassungsgesch. der röm. Republik, 42 ff.;
Savigny, F. C., Verbindung der Centurien mit den Tribus, in Vermischte Schriften, i. 1-13; for other
early literature, see Lange, Röm. Alt. ii. 495 ff., notes; Neumann, C., Zeitalter der punischen Kriege,
187 ff.; Nitzsch, K. W., Gesch. der röm. Republik, i. 146 f.; Mommsen, Röm. Tribus, 66-113, 143-
149; Röm. Staatsr. iii. 269 ff.; Lange, L., De magistratuum romanorum renuntiatione et de
centuriatorum comitiorum forma recentiore, in Kleine Schriften, ii. 463-493; Röm. Alt. ii. 494-516;
Madvig, J. N., Verfass. und Verw. des röm. Staates, i. 117-23; Herzog, E., Röm. Staatsverf. i. 320-7;
Die Charakter der Tributcomitien ... und die Reform der Centuriatcomitien, in Philol. xxiv (1876).
312-29; Willems, P., Droit public Romain, 92-8; Mispoulet, J. B., Institutions politiques des Romains,
i. 46-8; Greenidge, A. H. J., Roman Public Life, 252 f.; Abbott, F. F., Roman Political Institutions,
74-6; Karlowa, O., Röm. Rechtsgesch. i. 384-8; Soltau, W., Altröm. Volksversamml. 358-71; Cicero
de Re Publica und die servianische Centurienordnung, in Jahrb. f. Philol. xli (1895). 410-4;
Kappeyne Van de Coppello, J., Comitien, 20 ff.; Morlot, E., Comices électoraux sous la république
Rom. ch. v; Goguet, R., Centuries, ch. iv; Le Tellier, M., L’organisation centuriate, ch. ii; Hallays,
A., Comices à Rome, 25-31; Plüss, H. T., Entwick. der Centurienverfass.; Ullrich, J.,

Centuriatcomitien; Clason, O., Zur Frage über die reformierte Centurienverfass. in Heidelb. Jahrb.
lxv (1872). 221-37; Ritschl, F. W., Opuscula Philologica, iii. 637-73; Genz, H., Centuriat-Comitien
nach der Reform; Guiraud, P., De la Reforme des Comices centuriates au III Siècle av. J.-C. in Rev.
hist. xvii (1881). 1-24; Klebs, E., Stimmenzahl und Abstimmungsordnung der ref. servianischen Verf.,
in Zeitschr. d. Savignystift. f. Rechtsgesch. Röm. Abt. xii (1892). 181-244; Meyer, E., Die angebliche
Centurienreform Sullas, in Hermes, xxxiiii (1898). 652-4; Humbert, G., in Daremberg et Saglio, Dict.
ii. 1389 f.; Kübler, in Pauly-Wissowa, Real-Encycl. iii. 1956-60.

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 interests[1360] developed the
function of declaring war. The people, however, were slow in acquiring the
right. It is true that several such acts are mentioned by Dionysius for the
early republic—for the war against the Volscians, 489,[1361] against Veii,
482,[1362] and against the Aequians and Volscians in 462.[1363] These
instances may be explained either as acclamations in contio or as
exceptional votes in the comitia centuriata, or with more probability, owing
to the character of our sources for those early times, as anticipations of later
usage. The decisive fact in the problem is that as late as 427 a controversy
arose as to whether war could be declared by order of the people only, or
whether a senatus consultum was sufficient. It was settled in favor of the
people by the threats of the plebeian tribunes to impede the levy.[1364] For
the next hundred years mention is often made of the exercise of this
function by the people;[1365] and when a declaration was once issued by
them, it could be recalled only by their vote.[1366] During the period of the
Samnite wars the assembly still more frequently made use of this right.[1367]
In better known times we find it firmly established. The people declared
war against Carthage in 264,[1368] against the Illyrians in 229,[1369] against
Carthage again in 218,[1370] against Macedon in 200,[1371] against Antiochus
in 191,[1372] against Macedon again in 171,[1373] against Jugurtha in 111.
[1374]
In the case of the two Macedonian wars here referred to, the
declaration is mentioned as an act of the comitia centuriata.[1375] In 167 the
praetor M. Juventus Thalna attempted to pass through the tribal assembly a
lex de bello indicendo against the Rhodians, but was effectually opposed by
a tribune of the plebs;[1376] so that the function continued to be exclusively
centuriate. Cn. Manlius Volso in 189 made war upon the Gallograeci
without an order of the people or a decree of the senate, and was on that
ground accused in the senate by two of his legati.[1377] We conclude,
however, that the charge was fruitless from the circumstance that the senate
finally decreed him a triumph.[1378] For beginning war against the Histrians
on his own responsibility the consul A. Manlius, 178, was threatened with a
prosecution, which was quashed by a tribunician veto.[1379] Licinius

Lucullus was not even brought to trial for the war he waged without an
order of the people against the Vaccaei in 151.[1380] Hence it appears that
though a magistrate could not legally begin war on his own initiative, there
was no real danger of condemnation for so doing. The reason is that those
in authority attached little importance to the right of the comitia in the
matter. Only once is mentioned a fear lest the people may not give their
consent to a war.[1381] One case of rejection is recorded, and even here the
centuries at a second session obediently accepted the consul’s proposition.
[1382]
The control of diplomacy and of the revenues by the senate and
magistrates assured these powers the practical decision of questions of war
and peace to such an extent that ratification by the assembly could
ordinarily be counted on as certain; and its influence decreased with the
expansion of the empire. Meantime, however, the idea of popular
sovereignty, which was expressing itself in other spheres of government,
effectually demanded, if only in form, some concession to the assembly in
this field as well; and accordingly in the formula of declaration “populus”
wholly takes the place of the once all-important “senatus.”[1383] By such
empty concessions the nobility rendered the people more docile. Thus to the
end of the republic the centuriate assembly retained the constitutional right
to decide questions of aggressive war, although in practice the magistrates
nearly regained the place which they and the senate had held during the
century following the overthrow of kingship.[1384]
The nature of our sources does not allow a precise judgment regarding
the importance of the comitia curiata in the early republic. To the time of
the Gallic invasion it may occasionally have passed resolutions affecting the
status of citizens.[1385] But as legislation never became an acknowledged
function of the curiae, we are in a position to assert that through the comitia
centuriata the people were first introduced into this sphere of public life.
[1386]

The earliest legislation of this assembly, in fact the earliest recorded
legislative act of the Roman people, was the lex de provocatione attributed
to Valerius Publicola, consul in the first year of the republic, 509.[1387] It
was also through the centuriate assembly that the consuls Valerius and
Horatius in 449 passed a law which forbade the election of a magistrate
without appeal, and affixed as a penalty the outlawing of the trespasser.

[1388]
The third Valerian law of appeal in 300[1389] was an act of the same
assembly, whereas all three Porcian laws on the same subject seem to have
been tribal.[1390] The legislative function of the centuriate assembly, resting
in the pre-decemviral period simply on precedent, brought into being the
statute of 471 to establish a tribal assembly for the transaction of plebeian
business, improperly known as the Publilian law,[1391] the lex sacrata for the
division of the Aventine among the plebeians, erroneously termed Icilian,
456,[1392] the lex Aternia Tarpeia de multae dictione, 454,[1393] the lex
Menenia Sextia on the same subjects in 452,[1394] the laws ratifying the
Twelve Tables in 451, 449[1395]—all excepting the second having reference
to the limitation of the magisterial power. Regarding the creation of offices,
no mention is made of a law for the institution of the consulate itself; but
the centuries passed a law for the creation of the dictatorship, 501,[1396] and
of the decemviri legibus scribundis, which should be named Sestian after
the consul who undoubtedly proposed it, 452.[1397] Thus far popular
legislation had no basis excepting precedent, but a law of the Twelve Tables
now provided that there should be resolutions and votes of the people, and
whatever the people voted last should be law and valid—the first clear
enunciation of the principle that the will of the people, whenever expressed,
prevailed over every other authority.[1398] It was far from establishing
popular sovereignty, however, for the initiative remained with the
magistrates.
The activity of the comitia centuriata, thus authoritatively established,
manifested itself in the passing of the Valerian-Horatian laws of 449,[1399]
the lex Iulia Papiria de multarum aestimatione, 430,[1400] the law for the
election of six military tribunes by the comitia tributa, 362,[1401] the law of
the dictator Publilius Philo, 339,[1402] the third Valerian law concerning
appeal, 300,[1403] and finally the Hortensian law, 287.[1404] All have
reference to the regulation of magistracies or of assemblies. Meantime the
centuriate comitia passed the law for instituting tribunes of the soldiers with
consular power, 445,[1405] and censors, 443[1406] (or 435?), for increasing
the number of quaestors, 421,[1407] for instituting the praetorship, 367,[1408]
and the curule aedileship in the same year.[1409] All the laws thus far
mentioned, excepting that for the division of the Aventine, effected
important modifications of the constitution, the most of them forced upon

the senate and magistrates in the struggle for equal rights in which the
commons were engaged with the nobility. In like manner two provisions of
the Valerian law of 342, (1) that the name of no soldier should be erased
from the muster roll without his consent. (2) that no military tribune should
be degraded to the rank of centurion,[1410] established under the sanction of
an oath certain fundamental rights on which the soldiers and their officers
respectively insisted. Another provision, the total abolition of debts,[1411] if
indeed it is historical, was administrative, and is considered therefore in
another connection.[1412] Of the same nature, though less sweeping, was the
Hortensian provision for the relief of debtors.
As soon as there came to be plebeian senators (about 400), the patricians
reserved to themselves the right to decide on the legality of legislative and
elective acts of the people under patrician presidency—a right designated
by the phrase patrum auctoritas, which signified originally the authorization
of the senators, thereafter of the patrician senators. Till 339 the patres were
at liberty to give or withhold the auctoritas; but in that year an article of the
Publilian law required them to grant it to legislative acts of the centuries
before the voting began and while the issue was still in doubt, reducing it in
this way to a mere formality.[1413] The effect was to free centuriate
legislation from the constitutional control hitherto exercised by patrician
senators.[1414] Henceforth the resolutions of this assembly could be declared
illegal by no less than a majority of the entire senate. The Publilian statute,
accordingly, deprived the patricians of an important power, whereas the
senate as a whole continued through its consulta to exercise an increasing
influence over the comitia centuriata. Polybius rightly ascribes to the
consuls, therefore, the function of bringing the resolutions of the senate
before the assembly. It could not have been the intention of Publilius Philo
to energize the comitia centuriata by this provision; for another article of the
same statute, confirming the validity of the tribunician assembly of tribes,
as then actually constituted exclusively of plebeians, paved the way for the
Hortensian law, which by making the acts of the tribunician assembly in
every respect equal to those of the centuries, deprived the latter of their
great importance as a factor in constitutional progress. From the time of
Hortensius to the time of Sulla no constitutional statute is known to have
been enacted by the centuriate assembly; though our sources do not give us
clear information on the point, it is highly probable that the consuls and

dictators of this period preferred to bring their measures however important
before the tribes.[1415] In Sulla’s time the lex Valeria, 82,[1416] clothing him
with his extraordinary dictatorship rei publicae constituendae, must have
been passed by the centuries, which alone in addition to the politically
obsolete comitia curiata could be summoned by an interrex, as was the
author of the law. This act, Lange remarks, cannot well be considered a
revival of the legislative power of the centuries, as it was not only passed
through intimidation and under a magistrate who had no constitutional right
to initiate legislation, but it also created a legalized tyranny destructive of
popular freedom.[1417] In the words of Cicero it was the most iniquitous of
all laws and most unlike a law.[1418] Only one of Sulla’s statutes, the lex de
civitate Volaterranis adimenda, 81, which, depriving the Volaterrani of their
civitas cum suffragio, placed them in the condition of the Latins of
Ariminum, is known to have been an act of the centuries.[1419] Probably all
his other laws were ratified by the tribes.[1420] C. Julius Caesar preferably
used the tribes, although it is possible that his lex de provinciis and his lex
iudiciaria came before the comitia centuriata.[1421]
Sulla’s constitutional legislation curtailed the powers of the plebeian
tribunes and of their assembly, proportionally increasing the importance of
the centuries; and although his form of government was of short duration,
the optimates thereafter naturally preferred the comitia centuriata for the
ratification of senatorial resolutions.[1422] To this assembly accordingly
belong the leges Vibiae of the consul C. Vibius Pansa, 43, which confirmed
the acts of Caesar, and took the place of Antony’s leges de coloniis
deducendis and of his lex de dictatura tollenda.[1423]
On the institution of the censorship, and by the law which called the
office into being, it was enacted that elections of censors should be ratified,
not by the curiae as in the case of other magistrates, but by the centuries
themselves.[1424] Before this date the principle was already established that
the people should vote twice in the election of every magistrate in order that
if they repented of their choice, they might recall it by a second vote.[1425]
As the primary function of the censors was the periodical reconstitution of
the comitia centuriata, it was doubtless thought appropriate that this
assembly alone should be concerned with the election. The lex centuriata de
potestate censoria, evidently passed under consular presidency, remained,

like the curiate law in confirmation of elections to other offices, a mere
form. It was of too little practical significance ever to be noticed by the
historians; in fact no individual instance of the passing of this act is
mentioned by any extant writer. Characteristically the lex Aemilia, 433,
which is alleged to have cut down the term of censorship to eighteen
months,[1426] and the lex Publilia Philonis, 339, which provided that at least
one censor must be a plebeian,[1427] were centuriate, whereas the Licinian-
Sextian law, 367, which provided that one consul must be a plebeian,[1428]
and the Genucian law, 342, permitting both to be,[1429] were plebiscites.
An occasional attempt was made by a magistrate to usurp for the comitia
centuriata a share in the administration. The first which is worthy of notice,
[1430]
even though it may be mythical, is the agrarian proposal of Sp.
Cassius, 486. According to the sources it was opposed by the senate and the
colleague of the mover. Far from enacting it into a law, the author, on the
expiration of his consulship, was himself accused of attempting to usurp the
royal power, and was, in one version of the story, condemned to death by
the assembly to which he had offered the bill.[1431] The senate must have
taken very seriously this first attempt of a magistrate to transfer some of its
administrative power to the comitia. The law for the division of the
Aventine Hill among the people, 456, was actually passed, most probably
by the centuries.[1432] It was forced upon the government by the plebeians,
and did not serve as a precedent for the future. The Valerian law of 342,
[1433]
which abolished debts, was an extraordinary administrative measure
similar in character, but far more sweeping, to the clause for the relief of
debtors in the Licinian-Sextian plebiscite.
If then the centuriate assembly was excluded from the field of
administration, it must certainly in pre-decemviral times have had no part in
religious legislation. The law which regulated the intercalary month
inscribed on a bronze column by Pinarius and Furius, consuls in 472,[1434]
and the ancient law composed in archaic letters, mentioned in connection
with the year 363,[1435] requiring the praetor maximus to drive the nail on
the ides of September, must accordingly have been acts, not of the
centuriate assembly, but of the pontifical college. By the ratification of the
Twelve Tables, composed chiefly of private laws and of closely connected
religious regulations, an example was set for the invasion of both of these

legal spheres by the centuriate assembly. But the precedent remained
unproductive; for at this time the tribal assembly under plebeian or patrician
magistrates was recognized as competent for legislation, and naturally took
to itself the function of enacting the less weighty, for a time generally the
non-constitutional, laws.[1436] We are not to imagine the field of legislation
clearly divided into constitutional, private, religious, and other departments;
aside from the question of declaring an offensive war, which remained
strictly the province of the comitia centuriata, the distinction in legislation
was simply between the more and the less important; the dignified assembly
of centuries, organized on an aristocratic-timocratic basis, was entrusted
with the weightier business, whereas the simpler tribal assembly, which was
easier to summon and more expeditious in action, served well enough for
the despatch of lighter business. The question of the assembly to be
employed was largely one of inertia; it required a far greater force of
circumstances to set in motion for legislative purposes the cumbrous
centuriate assembly than the relatively mobile gathering of the tribes.

III. Judicial

The jurisdiction of the people in whatever assembly was confined to
cases of crime and of serious disobedience to magistrates.[1437] It was not
exercised by them in the first instance but only by way of appeal. In the
opinion of the Romans Tullus Hostilius was the first to grant an appeal,[1438]
necessarily to the comitia curiata, which under the kings remained the only
formally voting assembly.[1439] During the regal period, the well attested
appellate function of the comitia[1440] was simply precarious, depending
wholly on the pleasure of the king.[1441] The Romans represented the
advance in liberty brought by the republic as consisting partly in the
establishment of the right of appeal for every citizen through the lex de
provocatione of Valerius,[1442] a consul of the first year of the republic—
according to Cicero the first law carried through the comitia centuriata—
providing that no magistrate should scourge or put to death a citizen without
granting him an appeal to the people.[1443] Although the historical existence
of this Valerius has been questioned, and though his law has the appearance
of being an anticipation of the Valerian law of 449, or more closely of that
of 300,[1444] we must admit in favor of its reality that the decemvirs were

themselves exceptionally above appeal and that their laws guaranteed to the
citizens an extensive use of the right.[1445] The appellant, however, had no
legal means of enforcing his right against the magistrate; he could do no
more than “throw himself on the mercy of the crowd, and trust that their
shouts or murmurs would bend the magistrate to respect the law.”[1446] The
first lex Valeria, accordingly, brought little real benefit to the citizens.[1447]
The right was recognized and its application extended, as intimated above,
by the Twelve Tables, in which various laws relating not only to capital
crimes but to some of less importance granted an appeal to the people.[1448]
It was provided also by a special statute of the code that judgments as well
as laws involving life or citizenship could be passed only by the comitiatus
maximus, which is evidently the comitia centuriata.[1449]
The Valerian-Horatian law of appeal, 449, was directed against the
recurrence of the decemvirate or any similar magistracy with absolute
jurisdiction, and hence resembled neither the laws of the Twelve Tables
referring to the subject nor the Valerian law of 509. It provided that any one
who brought about the election of such a magistracy might be put to death
with impunity,[1450] and is alleged to have been reinforced by a Duillian
plebiscite of the same year, which set the penalty of scourging and death for
the same offence.[1451] These regulations could not refer to the dictatorship,
which was appointive not elective, and which continued to possess absolute
jurisdiction for more than a century after the decemviral legislation.[1452]
But legal rights by no means imply actual enjoyment; and the decemviral
laws of appeal must have long remained substantially inoperative through
lack of a power sufficiently interested in their enforcement; “the might of
the few was stronger than the liberty of the commons.”[1453] The right was
limited, too, by the first milestone,[1454] and hence did not affect the
imperium militiae.[1455] The only punishment of a magistrate for refusal to
grant an appeal even by the Valerian law of 300, was to be deemed wicked.
[1456]
Furthermore the oft-recurring dictatorship was unrestricted by the law,
being in this respect a temporary restoration of the regal office.[1457] Not till
after the enactment of the last Valerian statute did the people begin to enjoy
in fact the privilege which had long been constitutionally theirs. The
enforcement of the law, as in general of the rights of the citizens, was
chiefly due to the plebeian tribunate, “the only sure protection even of

oppressed patricians,”[1458] but itself a limitation on the jurisdiction of the
assembly.[1459] At some unknown date after 325[1460] the dictator’s authority
within the city was subjected to appeal; and it has accordingly been
suggested that this limitation was due to the Valerian law of 300.[1461]
The practical establishment of the right of appeal ordinarily led the
magistrate in the exercise of his disciplinary power to substitute light fines
and imprisonment, which he had full power to enforce, for the heavier
penalty of scourging.[1462] But in case of crimes, especially perduellio and
parricidium, public sentiment compelled him to prosecute the accused to the
full extent of the law. In the former accusation the consul of the early
republic appointed duumviri perduellioni iudicandae for each case as it
arose.[1463] This office is obscure because, without being formally
abolished, it fell early into disuse, its function passing to the tribunate of the
plebs. Of the three cases attributed by the sources to these duumviri, that of
Horatius[1464] belongs to the regal period, and is a mythical prototype of the
republican procedure. The offence has the appearance of parricidium. Only
by the broadest interpretation could perduellio be made to cover the murder
of a sister.[1465] The second case is that of M. Manlius, 384, according to the
more credible account,[1466] whereas Livy[1467] himself is of the opinion
that the prosecutors were the plebeian tribunes. We may conclude, then, that
the duumviri were still employed at this date.[1468] The third case is an
unsuccessful attempt in 63 to revive the office for the trial of C. Rabirius.
[1469]
The first republican law of appeal must have empowered the comitia
to order the appointment of these officials by the magistrate;[1470] and it
seems probable that at a later date unknown to us they began to be elected
by the people.[1471] The function of the duumviri was to try the case and
pronounce sentence, from which if condemnatory the accused had a right to
appeal to the comitia centuriata.[1472] From the analogy offered by the
questorian procedure we may infer that the duumviri requested from a
higher magistrate permission to take auspices for that assembly, over which
they presided in the final trial.[1473]
All capital crimes committed by a citizen against another were in a
similar way referred by the consuls to the quaestores parricidii as their
deputies.[1474] The activity of these officials is first mentioned by the

annalists in connection with the trial of Sp. Cassius, not for murder but for
perduellio.[1475] Lange’s[1476] explanation that the quaestors were appointed
duumviri for the trial would satisfy all requirements; yet in myths of this
kind we need not expect absolute legal consistency.[1477] According to
another, perhaps even earlier, version he was tried and condemned at home
by his father.[1478] The second instance is the trial of M. Volscius, 459, for
false testimony,[1479] which was likewise a capital crime. Their judicial
competence was recognized by the Twelve Tables;[1480] and two capital
cases are assigned to their jurisdiction after the decemvirate, (1) that of
Camillus on an accusation variously stated by the ancient authorities;[1481]
he avoided capital prosecution before the centuries by retiring into exile,
and in his absence was condemned by the tribes to a fine of 15,000 or
perhaps 100,000 asses: (2) that of T. Quinctius Trogus brought by the
quaestor M. Sergius,[1482] which must have taken place after 242.[1483] The
reason for the fewness of the known cases is to be sought in the
circumstance that their jurisdiction was substantially limited to common
crimes, whereas political crimes came at first before the duumviri and
afterward before the tribunes of the plebs.[1484] The criminal jurisdiction of
the quaestors must have continued till the institution of standing
quaestiones.[1485]
While the importance of the comitia centuriata as a criminal court was
enhanced by the lex Valeria Horatia and the Duillian plebiscite of 449,
which prohibited the election of a magistrate with absolute jurisdiction, the
number of officials competent to bring capital actions before this assembly
was increased as a result of that law of the Twelve Tables which enacted
that all resolutions concerning the caput of a Roman citizen should be
offered to the centuries only.[1486] Thereafter the tribunes were required to
prefer their capital accusations before this assembly, for the summoning of
which they, like the quaestors and the duumviri perduellioni iudicandae,
requested the auspices of a higher magistrate, ordinarily after 367 of a
praetor.[1487] For a time, probably till the Hortensian legislation, they were
dependent upon the patrician magistrates for this privilege.[1488] According
to our sources the tribunes, with the approval of the consuls,[1489] entered
upon their new sphere of judicial activity by bringing a capital charge
against Appius Claudius and Sp. Oppius, past decemvirs, for misconduct in

office, the specific charge being the abuse of justice in the interest of a
person or of a party.[1490] The suicide of the accused prevented the trial. On
the eight remaining decemvirs they passed in the same assembly a sentence
of exile.[1491] M. Claudius, too, condemned for false testimony, was exiled,
the death penalty being mitigated also in his case.[1492] The tribunes of 439
are said to have accused L. Minucius and C. Servilius Ahala for the part
they had taken in the death of Sp. Maelius, and two years afterward
Servilius was sentenced to exile by the comitia centuriata, to be recalled
later by the same body. The charge against the former was false testimony,
against the latter the putting to death of a citizen who had not been legally
sentenced.[1493] Livy next mentions a charge, probably of perduellio,
brought by the tribunes against Q. Fabius, 390, for having, in violation of
the ius gentium, fought against the Gauls while he was an ambassador to
them. He, too, is said to have died before the trial.[1494] All these cases are
uncertain. If historical, they may represent the beginnings of capital
jurisdiction of the tribunes, in rivalry with the duumviri; or they may in
reality, like the case of M. Manlius, 384, already mentioned, have been
duumviral. On either alternative they came before the centuriate comitia.
As we approach firmer historical ground, we hear of three accusations of
unnatural lust alleged to have been brought by the tribunes of the plebs
before the same comitia: (1) that against L. Papirius, 326,[1495] (2) that
against L. or M. Laetorius Mergus, a military tribune, quod cornicularium
suum stupri causa appellasset,[1496] (3) the case mentioned by Pliny and
others against a person of unknown name, which probably belongs to this
period.[1497] The second case seems to be a trial of official accountability,
which fell within tribunician jurisdiction according to the usage of historical
time; the others are too little known to be legally formulated.
In this period falls the attempted prosecution of Appius Claudius Caecus,
310, on the ground that he had not laid down the censorship at the end of
the limit of eighteen months.[1498] The accusing tribune ordered him to be
seized and imprisoned, but three colleagues interceded.[1499] About the
same time M. Atilius Calatinus was unsuccessfully prosecuted on a charge
of having betrayed Sora,[1500] probably in connection with the defection of
that town to the Samnites in 315.[1501]

In reviewing the cases said to have been brought by tribunes before the
comitia centuriata it is surprising to find the period from the institution of
the office to the trial of Q. Fabius, 390, swarming with such prosecutions,
whereas for the century intervening between that date and the Hortensian
legislation comparatively few cases are recorded and those of little
significance.[1502] These circumstances tend to prove that the cases assigned
to the earlier and less known period either belong mostly to the jurisdiction
of the duumviri or of the quaestors rather than of the tribunes, or are in
great part mythical, and that the tribunes, therefore, exercised no extensive
capital jurisdiction before the enactment of the Hortensian law.[1503] We are
led thence to the conclusion that either by an article of the statute of
Hortensius or at least as a recognized consequence of the high place in the
government assured the tribunes by it, the jurisdiction of these magistrates
in political cases was freed from every restraint. At this time they succeeded
wholly to the place of the duumviri. The cases of which the tribunes had
cognizance were thereafter exclusively political, whereas the questorian
jurisdiction was confined to murder and other common crimes. This
distinction was not a limitation upon the power of the tribunes, who if they
chose might have superseded the quaestors as easily as they had superseded
the duumviri. It was rather a division of functions adopted by the tribunes
themselves in view of their own political character and on the basis of the
relative dignity of the two offices. The chief judicial function of the
tribunes, accordingly, was to hold officials responsible for their
administration, though occasionally they called private persons to account
for their conduct as citizens. All grades of officials were within their
jurisdiction, but most of the cases were against the higher magistrates.
The first tribunician case of the kind after the Hortensian legislation, and
the first which is absolutely free from historical doubt, is that brought
against P. Claudius Pulcher on the ground that as consul, 249, he fought the
naval battle off Drepana contrary to auspices, thereby losing his fleet. After
the comitia had been interrupted by a storm, the intercession of colleagues
against the resumption of the trial saved him from the death penalty. As the
result of a new trial before the tribes, however, he was fined 120,000 asses,
1000 for each ship lost.[1504] His colleague, L. Junius, by suicide escaped
condemnation on a charge of perduellio.[1505] In 212 two tribunes of the
plebs prosecuted M. Postumius Pyrgensis, a publican, before the tribes for

fraud, setting the penalty at 200,000 asses; but the accused with his friends
violently broke up the assembly, whereupon the tribunes, dropping the
original charge, prosecuted him for perduellio,[1506] we should suppose
before the centuries.[1507] Among the complaints urged against him by the
consuls in the senate were that “he had wrested from the Roman people the
right of suffrage, had broken up a concilium plebis, had reduced the
tribunes to the rank of private persons, had marshalled an army against the
Roman people, seized a position, and cut the tribunes off from the plebs,
and had prevented the tribes from being called to vote.” Specifically the
crime must have been perduellio.[1508] Before the day of trial he withdrew
into exile. In his absence the plebs on the motion of Sp. and L. Carvilius
decreed that he was legally in banishment, that his property should be
confiscated, and that he should be interdicted from fire and water. In this
connection it should be noticed that whereas the banishment of a citizen by
lex or iudicium was the exclusive right of the centuries,[1509] the tribes were
competent to decree him an exile after his voluntary retirement.[1510] Some
of the coadjutors in the violence of the publican above mentioned left their
bail and followed him into exile; others were imprisoned to await capital
trial, with what result the historian does not inform us.[1511]
In the same year Cn. Fulvius, a praetor, met with military reverses
through gross cowardice,[1512] and in the following was prosecuted in a
finable action by a tribune of the plebs for having corrupted his army by the
example of his unsoldierly habits. Finding in the course of the trial that the
fault of the magistrate was far more serious than had been imagined, and
that the people were in a temper to vote the extreme penalty, the prosecutor
changed the form of accusation to perduellio on the ground that such
cowardly conduct in a commander threatened the existence of the state. In
this instance, too, the accused avoided trial by withdrawing into exile.[1513]
In 204 by a decree of the senate a special commission, consisting of the
praetor for Sicily with a council of ten senators,[1514] was appointed for the
trial of a legate of Scipio, Q. Pleminius, on the charge that he had robbed
the temple of Persephone in Locri and had violently oppressed the Locrians.
[1515]
The commission brought him and his accomplices in chains to Rome
and cast them in prison to await their trial for life before the centuries.[1516]
The day of trial was continually deferred, till finally Pleminius, now

charged with the instigation of a plot to burn the city, was put to death in
prison.[1517] The fate of his accomplices is unknown.[1518] Livy[1519]
remarks that while Pleminius was languishing in jail the wrath of the
populace gradually changed to sympathy, to such an extent doubtless as to
convince the authorities of their inability to secure a popular verdict in
favor of the death penalty. In fact since the death of M. Manlius
Capitolinus, 384, no example of the execution of a death sentence
pronounced by the assembly is recorded in history.[1520] But the magistrate
probably often inflicted corporal punishment in violation of the third
Valerian law. To put an end to this abuse, and at the same time to embody in
legal form the popular feeling against the application of the death penalty to
citizens, a Porcian law absolutely forbade the scourging or slaying of a
citizen under the imperium domi, the article prohibiting the sentence of
death being afterward reënforced by other enactments.[1521] There has been
much discussion as to the authorship of this law; probably it was the work
of M. Porcius Cato the Elder in his praetorship, 198.[1522] Another Porcian
law, probably of P. Porcius Laeca, praetor in 195, extended the right of
appeal to Roman citizens who were engaged in the affairs of peace outside
the city, in Italy and the provinces, and were therefore under the military
imperium.[1523] According to this law the citizen who appealed was sent to
Rome for trial by the appropriate civil authorities. Still later the third
Porcian law, which Lange[1524] conjecturally assigns to L. Porcius Licinus,
consul in the year of the elder Cato’s censorship, 184, seems to have been
passed for the benefit of Roman soldiers. We learn from Polybius,[1525] who
wrote later than the date last mentioned, that the military tribunes were
accustomed in court-martial to condemn common soldiers for neglect of
sentinel duty and that the condemned were cudgeled and stoned, often to
death, by their fellow-soldiers. He also speaks of the punishment of entire
maniples by decimation. Under Scipio Aemilianus, 133, the Roman who
neglected duty was flogged with vine stocks, the foreigner with cudgels.
[1526]
Cicero[1527] intimates that in his own time there was no appeal from
the judgment of commanders; and in fact it is impossible to understand how
discipline could otherwise be maintained. Evidence to the contrary is scant
and uncertain. The person against whom an accusation of desertion was
brought before the tribunes of the plebs in 138 seems to have claimed to be
a civilian, and on that ground appealed to the tribunes. When proved guilty

he was flogged and sold as a slave, probably by a judgment of the military
authorities.[1528] In 122 Livius Drusus proposed to exempt Latin soldiers
from flogging.[1529] While informing us that in 108 a commander had a
right to scourge and put to death a Latin official, Sallust[1530] intimates that
he had less authority over a Roman. In the time of the emperors, on the
other hand, soldiers were subject to the death penalty as in the time of
Polybius.[1531] All these circumstances may be best explained by supposing
that the third Porcian law permitted the infliction of flogging and death on
Roman soldiers by the judgment only of a court-martial.[1532] This difficult
subject is further complicated by the statement of Cicero[1533] that the three
Porcian statutes introduced nothing new excepting by way of penalty.
Interpreted in the light of other information given by various authors,
including Cicero himself, these statutes simply extended the right of appeal
by adapting the Valerian principle to new conditions, and substituted exile
in place of scourging and death. In the relation between the accused and the
civil court the cry “civis Romanus sum” was thereafter a sufficient
protection from bodily injury.[1534]
In the period to which the Porcian laws belong falls the accusation of
perduellio brought by the tribune P. Rutilius Rufus against the censors C.
Claudius and Ti. Sempronius Gracchus, while they were in office, 169. The
charge against Gracchus was disregard of the tribunician auxilium, against
his colleague the interruption of a concilium plebis (quod contionem ab se
avocasset). The accused, foregoing the privilege of their magistracy,
consented to a trial, which came before the comitia centuriata. Claudius
narrowly escaped condemnation, whereupon the case against Gracchus was
dropped.[1535]
The increasing number of special judiciary commissions and the
institution of standing courts limited more and more the judicial activity of
the centuriate assembly; but the tribunes of the plebs kept alive the feeling
of popular sovereignty in this sphere by the occasional prosecution of some
notorious offender.[1536] The continuance of the centuriate judicial function
is proved by the Cassian plebiscite of 137, which provided for the use of the
ballot in all iudicia populi excepting in perduellio,[1537] and by the lex
Caelia, 108, which removed the exception.[1538]

The limitation upon popular jurisdiction by the special court is said to
have begun as early as 414, when, according to Livy,[1539] a senatus
consultum authorized the appointment of a quaestio extraordinaria to
discover and punish the murderers of M. Postumius, a tribune of the
soldiers with consular power. The plebs, consulted as to the presidency of
the court, left it to the consuls. The instance may be an anticipation of later
usage. The case of wholesale poisoning by Roman matrons, 331, was
investigated, and a hundred and seventy matrons were condemned, by an
extraordinary court, which evidently owed its existence to a senatus
consultum without the coöperation of the people.[1540] The same is true of
the quaestio appointed by the senate under dictatorial presidency in 314 to
inquire into charges of conspiracy of the leading men in certain allied states.
The dictator extended the inquiry to Rome, and after his resignation the
consuls continued the work. Livy’s account of this affair assumes that the
senate had full power to appoint such commissions.[1541] It did in fact
possess the right without the coöperation of the people to institute
quaestiones extraordinariae for the trial of allies or other aliens in crimes
which menaced the security of Rome. In the period between the Hortensian
legislation and the Gracchi in two recorded instances it dared on its own
responsibility to appoint such courts for the trial of citizens.[1542] These
were usurpations; for as the laws of appeal forbade the putting to death of a
citizen unless condemned by the people, a special court with capital
jurisdiction over citizens could not be constitutionally established excepting
with the consent of the assembly. This right of the people was considered a
legislative equivalent of their judicial power, which the vast expansion of
their state made it impossible for them directly to exercise.[1543] The court
which tried and condemned the insurgent garrison of Rhegium in 270 was
instituted accordingly by a plebiscite authorized by a senatus consultum.
[1544]
Most probably the court in this case was the senate itself, just as in
210, when the plebiscite of L. Atilius gave it full power to judge and punish
the Campanians for revolt.[1545] The appointment of special courts for the
detection and punishment of aliens for illegal usurpation of the citizenship,
which belonged originally to the senate, began in 177 to be shared by the
people.[1546]
Similar in character to the special judiciary commission appointed by the
senate, but far more sweeping in effect, was the senatus consultum ultimum

(“videant consules, ne quid respublica detrimenti capiat”), which in crises
armed the consuls with absolute power of life and death over the citizens.
[1547]
By these means the senate at its pleasure circumvented the laws of
appeal on the plea that the accused had ceased to be citizens.[1548] Against
this abuse Ti. Gracchus planned a new law of appeal, which he did not live
to see enacted.[1549] His own followers were ruthlessly condemned without
the privilege of appeal by an extraordinary quaestio under P. Popillius
Laenas, consul in 132.[1550] Probably a similar court was appointed after the
revolt of Fregellae.[1551] To put an end to such circumvention of a well-
established right of the people, C. Gracchus in his first tribunate, 123,
carrying into effect the plan of his brother, passed the often mentioned lex
Sempronia de provocatione, which absolutely forbade capital sentence upon
a citizen without an order of the people.[1552] The wording indicates that it
was intended not to do away with extraordinary courts and powers, but to
allow their establishment in no other way than by popular vote.[1553] It
reiterated, too, the article of the Porcian statute which absolutely forbade
the infliction of the death penalty on civilians.[1554] Far, however, from
transferring the jurisdiction of the assembly to the quaestiones, the
Sempronian law evidently confirmed the right of the people by enacting
that the tribunes might bring the violator of that law before the comitia on a
charge of perduellio, for which it mentioned the penalty of interdict from
fire and water.[1555] It held responsible not only the magistrate charged with
the extraordinary commission, but probably also the senator who moved or
supported the measure which called it into being.[1556] The entire
Sempronian law was made retroactive, so as to cover the case of Popillius,
who thereupon fled into exile to avoid trial. The interdict was accordingly
decreed by the tribes on the motion of Gaius.[1557] Rupilius, the colleague
of Popillius, seems to have suffered a similar punishment.[1558]
In 120 the tribune Decius prosecuted for perduellio L. Opimius, who, as
consul in 121, armed with the senatus consultum ultimum, had caused the
death of C. Gracchus. The accused was acquitted.[1559] Ihne[1560] considers
this prosecution to have been instigated by the optimates in order to settle
once for all and in their favor the question as to the legality of special courts
which were called into being by an act of the senate alone. In that case
acquittal was a foregone conclusion. In 119 the popular party met with

greater success in the prosecution of C. Papirius Carbo, whom it hated as a
renegade.[1561] The charge was probably perduellio, though the details are
unknown.[1562]
The jurisdiction of the comitia in criminal cases suffered more extensive
curtailment from the standing courts,—quaestiones perpetuae,—the first of
which was established in 149 for the trial of Roman officials accused of
extortion—repetundae—committed in the provinces or in Italy.[1563] As the
object of the prosecutors was in the main the recovery of extorted property,
the court was essentially civil, and seemed, therefore, to the Romans no
infringement of popular rights; yet even before Sulla the principle began to
apply to distinctly criminal cases.[1564] Notwithstanding this development
several accusations were brought before the centuriate assembly in the
period between the Gracchi and Sulla.[1565] The latter increased the number
of quaestiones to seven and brought all crimes within their cognizance. The
questorian jurisdiction in cases of murder had already passed to the quaestio
inter sicarios, established between 149 and 141;[1566] and now Sulla
transferred cases of perduellio from the jurisdiction of the tribunes to the
quaestio maiestatis.[1567] Although restored to the tribunes in 70, it was for
the remainder of the republican period exercised by them on special
occasions only, for the quaestio maiestatis still existed. With the
establishment of the principate the jurisdiction of the people finally
vanished.[1568]
The revolutionary character of the period after Sulla is illustrated by the
case of perduellio against C. Rabirius[1569] brought in 63 by a tribune of the
plebs, T. Atius Labienus. Rabirius was charged with complicity in the
murder of L. Appuleius Saturninus, the famous tribune of the year 100.
Labienus proposed and carried a plebiscite requiring the praetor to appoint
duumviri for the trial, whereas it was generally held at the time that these
officials should have been elected by the people. It was also enacted, in
violation of the Porcian and Sempronian laws, that in case of conviction the
accused should be crucified on the Campus Martius. C. and L. Caesar,
appointed duumviri, brought the case before the comitia centuriata, which
were prevented from giving their verdict by the removal of the flag from
Janiculum.[1570] The object of the trial was not to punish the guilty, but to
discredit the senate, to which the accused belonged.[1571] The decline of the

idea of popular sovereignty is further indicated by the agrarian rogation of
the tribune P. Servilius Rullus, 63, an article of which, in violation of the lex
Valeria Horatia de provocatione, ordered the appointment of decemviri
agris adsignandis without appeal.[1572]
The procedure was the same in all finable and capital actions. In a case
subject to appeal the magistrate, after a preliminary inquiry (quaestio),
summoned the people to contio on the third day[1573] for a thorough
examination (anquisitio).[1574] The trumpeter blew his horn before the door
of the accused, and cited him to appear at daybreak in the place of
assembly.[1575] Acting as accuser, the magistrate addressed the contio and
produced his witnesses. Then came the witnesses for the defence, the
statement of the accused, and the pleading of his counsel. These
proceedings filled three contiones separated from one another by a day’s
interval. At the end of the third day’s session the magistrate acquitted the
accused or condemned him and fixed the penalty. In case of condemnation,
the accused if dissatisfied appealed. The magistrate then put his sentence in
the form of a rogation and set a date for the comitia,[1576] which could be
held only after an interval of a trinum nundinum,[1577] unless the accused
desired an earlier trial.[1578] Some scholars, however, hold the theory that a
magistrate, recognizing the limitation of his competence, might bring the
case directly to the comitia without the formality of a condemnation and
appeal.[1579] The penalty proposed in the rogation was not necessarily the
same as at first announced; for the trial might bring to light facts to mitigate
or to aggravate the sentence. The presentation of the case to the comitia by
the magistrate was termed the fourth accusation.[1580] If anything prevented
the voting in the comitia, the accused was discharged,[1581] and could not be
legally brought to trial again for the same offence excepting under a
different form of action.[1582]

Schulze, C. F., Volksversammlungen der Römer, 307-40; Hüllmann, K. D., Staatsrecht des
Altertums, 334-54; Huschke, Ph. E., Verfassung des Königs Servius Tullius, chs. vii, xi; Wöniger, A.
T., Sacralsystem und das Provocationsverfahren der Römer; Peter, C., Epochen der
Verfassungsgeschichte der röm. Republik, mit besonderer Berücksichtigung der Centuriatcomitien
und der mit diesen vorgegangenen Veränderungen; Studien zur röm. Geschichte, 54 ff.; Schwegler,
A., Röm. Geschichte, see index, s. Centuriatcomitien; Ihne, W., History of Rome, iv. 10 ff.;
Mommsen, Röm. Staatsrecht, iii. 300 ff.; Röm. Strafrecht, 151-74, 473-8, 632-5; Mommsen and
others, Zum ältesten Strafrecht der Kulturvölker, especially 31-51 by H. F. Hitzig; Lange, L., Röm.
Altertümer, ii. 516-33, 541-65, 597-613, see also indices of vols. i-iii, s. v.; Madvig, J. N., Verfassung

und Verwaltung des röm. Staates, i. 226-34; Herzog, E., Geschichte und System der röm.
Staatsverfassung, i. 1068-1119, see also index, s. v.; Willems, P., Droit public Romain, 159 f., 172,
176 ff.; Mispoulet, J. B., Institutions politiques des Romaines, i. 203-7; Études d’institutions
Romaines, 63-6; Liebenam, W., Comitia II, in Pauly-Wissowa, Real-Encycl. iv. 686-700; Humbert,
G. (s. Comitia), in Daremberg et Saglio, Dict. i. 1378 f.; Voigt, M., XII Tafeln, i. 673-82; ii. 781-845;
Karlowa, O., Röm. Rechtsgeschichte, i. 409; Girard, P. F., Histoire de l’organisation judiciaire des
Romains, i. 104-59; Usener, H., Italische Volksjustiz, in Rhein. Mus. lvi (1901). 1 ff.; Müller, A.,
Strafjustiz im röm. Heere, in N. Jahrb. f. kl. Altertum, xvii (1906). 550-77; Vassis, Sp., Leges valeriae
de provocatione, in Athena, xvii (1905). 160-5; Küspert, O., Ueber die Bedeutung und Gebrauch des
Wortes ‘Caput’ im älteren Latein; Dupond, A., De la constitution et des magistratures Romaines sous
la république, 67-74; Moye, M., Élections politiques sous la république Romaine; Hallays, A.,
Comices à Rome, ch. ii; Morlot, E., Comices électoraux, ch. vi; Kappeyne van de Coppello, J.,
Comitien, 105-7; Borgeaud, C., Histoire du plébiscite, 45-57; Pantaleoni, D., Della auctoritas patrum
nell’ antica Roma; Greenidge, A. H. J., Legal Procedure of Cicero’s Time, see index, s. Centuriata
Comitia, Lex, Provocatio, etc.; Roman Public Life, 75, 252 f., 255; Abbott, F. F., Roman Political
Institutions, 253-9; Wirz, H., Perduellionsprocess des C. Rabirius, in Jahrb. f. Philol. xxv (1879).
177-201; Mirabelli, G., Di un processo politico avvenuto negli ultimi tempi della republica Romana;
Schulthess, O., Der Process des C. Rabirius vom Jahre 63 v. Chr.; Baron, in Berl. Philol. Woch. 1893.
658-60.

CHAPTER XII
THE COMITIA TRIBUTA AND THE RISE OF POPULAR
SOVEREIGNTY
To the Year 449

In the belief of the Romans the tribunes of the plebs, originally two, were
instituted in 494 as a concession to the seceding commons to win them back
to the state.[1583] The historical truth of the first secession need not be
discussed here; but there is no good ground for rejecting the view of the
ancients either that the tribunate of the plebs owed its existence to a
revolution or that it began at as early a date. According to our sources the
plebeian tribunes, hence we may infer also the aediles, were for a time
elected, and other business affecting the interests of the common people
was transacted, in comitia curiata composed potentially of all the citizens.
[1584]
The change in the form of organization in 471, from curiate to tribal,
will be considered below. The president of the comitia which elected the
first plebeian tribunes was necessarily a patrician magistrate,[1585] probably
the pontifex maximus;[1586] thereafter, with the exception of the comitia for
the election of the first plebeian officials after the overthrow of the
decemvirs, tribunes of the plebs presided not only for elections but also for
judicial business and for the enactment of plebiscites (plebi scita).
The object of the office of tribune was the protection of individual
citizens, plebeian and patrician alike,[1587] from oppression; and the means
was the auxilium (official aid),[1588] which could be rendered in no other
way than by personal contact; hence the law prohibiting a tribune from
being absent over night from the city[1589] and requiring him to leave the
door of his house open during the night.[1590] In the further interest of the
citizens the tribunes had the unrestricted right to call the plebs to a contio
and address them at any time and on any subject, to form them when so
assembled into voting groups, at first curiae and after 471, tribes, and to
take their votes on proposals affecting plebeian interests, plebiscites being
from the beginning binding on the plebeian body in so far as they
harmonized with the laws of the state.[1591]

These were the two original functions from which the vast powers of the
later tribunes gradually developed. As strictly plebeian officials they had no
authority to summon patricians, to exclude them from the place of
assembly,[1592] or to condemn them judicially.[1593] It follows that their
alleged prosecutions of past consuls for maladministration[1594] are
fictions[1595]—an anticipation of their jurisdiction at a later age. Directly
they possessed no power of judgment or of coercion;[1596] but for the
enforcement of the auxilium and of the ius agendi cum plebe their persons
were made sacred—sacro sancti—by an oath which the plebs swore at the
time they instituted the office,[1597] namely that any one who killed a
tribune or aedile of the plebs or did him bodily harm, or who commanded
another to inflict harm or death upon him might as a person devoted to
Jupiter be killed with impunity, and his property be confiscated.[1598] The
avenger was necessarily either a private plebeian or an official of the plebs.
[1599]
The formal act which rendered the tribunes sacred was termed a lex
sacrata. The essence of such a law is (1) that it was sworn to by the
community—in this instance by the community of plebs, (2) that the
offender against it became a homo sacer and could be put to death with
impunity.[1600] This idea of sanctity the plebeians may have derived partly
from the Greek asylum;[1601] but it seems also to have been influenced by
the condition of ambassadors, hence the later, ill-founded conception of the
plebs as a state, and of the plebeian officials and other institutions as based
on a treaty ratified with fetial ceremonies between the patrician government
and the seceding plebs.[1602] Though termed lex sacrata because it was
passed and sworn to in the community, as it were, of the plebs, like any
plebiscite of this period the resolution had no legal validity for the state or
for the patricians. Under compulsion, however, the government yielded to
the demands of the plebeians without formally acknowledging the sanctity
of their officials; so that the patricians, by asserting that Roman law did not
recognize an inviolability founded purely on religion,[1603] could afterward
deny that the tribunes were really sacrosanct. Till the enactment of the
Valerian-Horatian laws of 449,[1604] accordingly, the inviolability of the
tribunes existed in so far only as the plebeians were in a position to
maintain it by holding over their opponents and over the government the
threat of violence and revolution. That under the circumstances domestic

peace was on the whole preserved should be credited to the orderly
character of the great mass of citizens.
Applied to the holding of contiones and comitia, this inviolability
protected the presiding tribune from interruption, contradiction, and every
disturbance. The principle was afterward extended to verbal abuse
anywhere publicly indulged in.[1605] Even if a man showed disrespect by
not stepping out of the way of a tribune who was passing along the street,
he was liable to the death penalty.[1606] Under normal conditions, however,
the rigorous execution of this lex sacrata could not be thought of; in place
of outlawing the offender against his person the tribune was ordinarily
willing to impose a fine upon him, from which an appeal might be made to
the plebeian assembly; or in cases of violence to his person, he might resort
to capital prosecution, which was likewise appealable. These principles
were formulated in an alleged Icilian plebiscite of the year 492.[1607] From
what has just been said it is clear that the tribune’s coercive[1608] and
judicial functions resulted, not from usurpation as has often been asserted,
[1609]
but from a mitigation of the harsh lex sacrata. In a word, the ultimate
basis of tribunician authority was the revolutionary power of the plebs,
upon which rested the sanctity of the tribunes, and thereon their jurisdiction.
Of the judicial activity attributed by the annalists to the plebeian officials in
the period before the decemvirs we do not know how much is mythical; but
it is safe to say that all the capital cases, probably all the cases without
qualification, which they actually settled as judges were submitted to by the
patrician government for the sake of peace, without being accepted as legal.
To the third year of the tribunate, 491, is assigned the first mentioned
exercise of tribunician jurisdiction. C. Marcius Coriolanus, the accused, had
advocated in the senate the abolition of the tribunician office,[1610] and had
done personal violence to the aediles, in this way rendering himself liable to
the penalty of the lex sacrata on which rested the sanctity of the plebeian
officials. Instead of declaring him a homo sacer, a tribune brought him to
trial before the tribes, which condemned him by a narrow majority.[1611]
The story is now regarded by all scholars as a myth. The vote by tribes at
this early time is either exceptional or more likely an anticipation of later
usage.[1612]

In accordance with the Icilian plebiscite a capital charge is said to have
been brought by a tribune of the plebs against Kaeso Quinctius on the
ground that he had repeatedly driven the tribunes from the Forum and had
dispersed their assembly.[1613] After providing sureties the accused went
into exile,[1614] and the sentence of banishment was passed—in Cicero’s
opinion by the comitia centuriata, in Livy’s by the tribal comitia of plebs,
461.[1615] Another case prior to the decemvirate is recorded for the year
455. Representatives of three illustrious patrician families were charged
with having disturbed an assembly under tribunician presidency. Their
estates were forfeited to Ceres.[1616] Naturally under this arrangement
between the plebs and the government there was room for much
misunderstanding: the leaders of the plebs stretched their claims to the
uttermost; and the patricians, after granting the radical concession,
endeavored to recall as much of it as possible. They plausibly urged that
while the sacrosanctitas, so far as it existed,[1617] might protect the person
of the tribune, it gave him no authority over a patrician;[1618] and their
position as the sole holders of political power and the sole repositories of
law and usage enabled them before the decemviral legislation by stubborn,
skilful perseverance in the details of political warfare almost to throw the
tribunician sanctity into oblivion.[1619] Livy tells us that in the assembly
appointed for the trial of the past consuls L. Furius and C. Manlius, the
accusing tribune failed to appear, and was found murdered in his home; and
the historian gives us to understand that the crime was the result of a private
conference among the patricians.[1620] Dio Cassius[1621] states that they
secretly slew a number of the boldest spirits among the plebeians. Though
these stories are mythical, they reflect at least the opinion of the historians
that in this early period the sanctity of the tribune counted for little. If it
failed to protect his person, it could have given him no great degree of
recognized judicial competence. Under these circumstances we should not
expect to find the tribunes often bringing the power of their questioned
sanctity into actual use in the early years of their existence; but that before
the decemvirate they exercised jurisdiction to some extent even in capital
cases, which were appealed to the assembly under their presidency, is
proved by a law of the Twelve Tables, which, to remedy what the legislators
must have considered an abuse, provided that accusations affecting the

caput of a citizen should be brought only before the comitiatus maximus—
evidently the comitia centuriata.[1622]
If the tribunes presumed to condemn men to death, they certainly would
not hesitate to fine them for lighter offences. For checking the power of the
magistrates to levy unlimited fines the consuls of 454, A. Aternius and Sp.
Tarpeius, passed through the comitia centuriata a law which set the
maximum fine to be levied by a magistrate on an individual in any one day
at thirty cattle and two sheep, the minimum being a single sheep. In case he
exceeded the former amount, an appeal could be made to the assembly.[1623]
In the opinion of Dionysius[1624] this law was interpreted to apply to all
magistrates, including those of the plebs, and was made accordingly the
basis of the tribunician jurisdiction in finable offences. These consequences
seem to have been drawn from the statute, although the proposers may not
have so intended it.[1625]
Sufficient evidence has now been offered that before the decemviral
legislation the plebeian tribunes exercised, on the basis of their sanctity, a
vague jurisdiction in both finable and capital cases, occasionally submitted
to by the patrician government though probably not recognized by it as just
or constitutional. For the same period their method of agitation by the
obstruction of the levy,[1626] by haranguing the people in contiones,[1627]
and occasionally by sedition, proves clearly the lack of legislative power
through the assembly over which they presided, as well as their lack of veto
on the acts of the government. With reference to legislation the course of
the discussion in the present and following chapters will make it evident
that only by a provision of the Hortensian statute did plebiscites become
unconditionally binding on the whole people. Although from the beginning
a tribune, as a member of a collegial office, could intercede against the act
of a colleague, he had in this period no legal right of the kind against the
government; for had he now possessed it, as he did at a later age, he would
have felt no need of obstructing the levy—a relatively slow, clumsy method
of political warfare. It is to be noticed further that the power of veto of the
tribunes, after it had been acquired, rested upon their jurisdiction. If a
magistrate persisted in ignoring their prohibition, his act remained valid but
he rendered himself liable to tribunician prosecution.[1628] Necessarily, then,
as long as the tribunes lacked judicial competence (till the Valerian-
Horatian legislation, 449) they lacked the veto against governmental action;

as long as their judicial competence depended upon the will of the
government (probably till the Hortensian legislation, 287), their veto on the
government must have been correspondingly limited. Finally it was not till
tribunician obstruction of the levy, sedition, and secession disappear (that is,
with the enactment of the Hortensian statute) that we have a right to assume
the existence of an unrestricted tribunician veto.[1629] The method of the
tribunes in the pre-decemviral period was, by the means above indicated, to
force a proposed measure upon the patrician magistrates, and to compel
them to bring it before the centuriate assembly in regular form.[1630]
In view of the circumstances that passed bills alone were recorded and
hence could be known to posterity, we may reject as unauthentic all the
alleged proposals of agrarian laws of this period,[1631] which however may
not have been free from agitation of the kind.
A law of the year 471 gave the tribunician assembly a tribal organization.
This measure, brought about by the agitation of Publilius Volero, tribune of
the plebs of that year,[1632] must, for the reason above mentioned, have been
an act of the comitia centuriata.[1633] The motive given by Livy was the
desire of the tribunes to free themselves from the influence which the
patricians through the votes of their clients exercised on the assembly.[1634]
The curiae contained all the citizens,[1635] the tribes none but the
landowners. The tribal organization, therefore, excluded not all the clients
but those only, together with any other citizens, who were landless.[1636]
Probably in other ways the patricians had greater control of the curiate than
of the tribal assemblies, although it is impossible to believe with
Dionysius[1637] that the essence of the change from the curiate to the tribal
comitia consisted in the elimination of auspical influence. That the law
forbade the patricians to take part in tribunician assemblies, as Zonaras[1638]
imagines, is not probable, for it gave the tribune no new authority over the
patricians; he had power neither to summon them to his assembly nor to
expel them from it.[1639] In fact we have evidence of the presence of
patricians in tribunician assemblies after this date.[1640] The so-called law of
Publilius Volero, now under discussion, was confused by the sources with
the Publilian law of 339, some of the provisions of the later act being
uncritically assigned to the earlier.[1641]

The statute of 471 imparted to the tribunician assembly no new function.
Although in mentioning the bill Dionysius[1642] includes a proposal to grant
the assembly legislative power, when he comes to speak of the statute as
actually passed, he refers only to its provisions for the election of plebeian
tribunes and aediles by the tribes, herein agreeing with Livy and other
authorities.[1643]
In the same year four tribunes of the plebs were elected for the first time.
[1644]
The increase was probably effected by an article of the statute under
discussion.
Till after the decemviral legislation the comitia tributa,[1645] brought into
existence by the statute of 471, was restricted, as had been the tribunician
comitia curiata, to the transaction of purely plebeian business. In the records
of this period we find a continuance of apocryphal agrarian bills[1646] and
condemnations of retired magistrates.[1647] In reality the only political
weapon of the tribunes, aside from general agitation, continued to be the
obstruction of the levy,[1648] as is proved by their increase in number to ten.
[1649]
The only agrarian law of the period, the so-called lex Icilia for the
division of the Aventine among the people, was passed by the comitia
centuriata.[1650] The very circumstance that this mild concession to the
plebs was couched in a lex sacrata[1651] shows how little faith the commons
had in the government.[1652]
During this period the supreme power was the senate. Shortly after the
fall of the kings it provided for the purchase of corn among neighboring
states in a time of scarcity, made a state monopoly of salt in the interest of
the poor, freed the plebs from port dues and tributum, thereby placing the
whole burden of these taxes on the wealthy.[1653] These acts imply
legislative as well as administrative competence. Foreign affairs,[1654]
including the decision of war and peace, were in its hands. It resolved not to
restore the property of the Tarquins,[1655] decreed triumphs to victorious
generals,[1656] the celebration of games,[1657] the expulsion of the Volscians
from the city in the time of a festival,[1658] controlled the magistrates,
including the plebeian tribunate, by means of the dictatorship,[1659] or
clothed the consuls with absolute authority.[1660] Little room was left for the
activity of the assemblies.

Notwithstanding these unfavorable conditions the tribunes of the plebs
through obstruction of the levy and through their harangues in
contiones[1661] were chiefly instrumental in bringing about the institution of
the decemviri legibus scribundis. Actual votes in tribunician comitia on
proposals looking to that end[1662] could have had no more than moral
weight. Under popular pressure the consul Sestius, 452, referred the
question to the senate,[1663] and the bill for their institution was passed by
comitia, doubtless of the centuries. The only valid activity, therefore, of the
tribal assembly prior to the decemviral legislation, so far as is known, was
the enactment of plebiscites, which lacked the force of law, the election of
plebeian officials,[1664] and the quasi-judicial decision of cases appealed to
it by those who were accused of violating the tribunician sanctity.[1665]
An epoch was made in the history of the tribunate and of the tribal
assembly by the consulship of Valerius and Horatius, 449, who proposed
and carried a centuriate law[1666] which gave these institutions a legal basis.
The article which logically first claims our attention provided that any one
who injured the tribunes of the plebs, the aediles, or the decemviral judges
should be devoted to Jupiter, and his property should be forfeit to the
temple of Ceres, Liber, and Libera.[1667] According to Livy,[1668] who here
represents the tribunician point of view, the original lex sacrata, passed on
the Sacred Mount, was first renewed with appropriate ceremonies, thus
reëstablishing the religious inviolability of the plebeian officials, whom
then the article of the Valerian-Horatian statute here mentioned rendered
legally inviolable. The constitutional relation of these two ideas was
difficult even for the Romans to determine. Certain jurists, controverting the
tribunician interpretation, asserted that this law made no person sacrosanct,
but merely threatened with capital punishment any one who injured the
officials concerned, clothing them thus in the same kind of inviolability as
that which protected the ordinary magistrates.[1669] The object, according to
this view, was not only to eliminate from the government the anomaly of a
power sanctioned by religion only,[1670] but also to convert the plebeian
officials into state officials. The leaders of the plebs gladly accepted the
new position tendered them, without being willing however to withdraw
from the old. Henceforth we have to deal, accordingly, with a group of
legally recognized public functionaries who effectively claimed a religious

inviolability hard to reconcile with the constitution, in which they were in
time to make for themselves a disproportionate place.
The second article of the Valerian-Horatian statute was to the effect that
“whatever the plebs ordered in their tribal assembly should be valid for the
people”;[1671] so that henceforth plebiscites, when passed under the
conditions hereafter specified, were the equivalent of leges, as they were
often so called. It is so similar to a provision of the later Publilian and of the
still later Hortensian statute that we should incline to reject it as an
anticipation of the one or the other, were it not for the fact that under it
important plebi scita, as the Canuleian, the Licinian-Sextian, and the
Genucian, were passed.[1672] We must accept it, then, as historical, and
adapt our interpretation to the few known facts in the case.
Notwithstanding the use of the word plebs to designate the tribal
gathering under tribunician presidency, there is no valid reason for
supposing that the Valerian-Horatian law altered its composition—that the
patricians were now excluded.[1673] Dionysius[1674] is clearly of the opinion
that they participated in this form of comitia both before and after the
enactment of the statute under consideration; and Livy[1675] thinks of them
as still present in the tribunician meetings as late as the struggle for the
Licinian-Sextian laws. The problem must be considered in connection with
the development of the voting function of the assembly. Primitively the
leaders (nobles) in council decided upon a measure, which they then
submitted to the people to be accepted with clamor and din.[1676] Although
the acclamation was essentially an act of the masses, nothing forbade the
nobles to join in the shouting. Doubtless in the tribal assemblies the
expression of opinion within the tribe continued for a time to be by
acclamation.[1677] As long as this primitive condition existed, a distinction
could not be drawn between the right to be present and the right to join in
the decision of questions brought before the comitia. Undoubtedly the
custom of voting by heads within the tribe was an imitation of a usage
adopted by the comitia centuriata some time after the institution of the
latter;[1678] hence we could not reasonably assume its use by the tribes so
early as the pre-decemviral period. The question therefore as to whether the
patricians, who were certainly present in meetings of the tribes, enjoyed the
right of voting in them could not have arisen till after the decemviral

legislation. The plebeians had found it impossible by their own powers to
exclude from their assembly the landless clients, who were inferior to
themselves.[1679] Much less could they exclude the nobles. If the presiding
tribune could not prevent their remaining after the people had been formed
into voting groups, he could not prevent their voting. As the patricians,
equally with the plebeians, belonged to the tribes, the former, being men of
superior privilege, could not lawfully be debarred from meetings of their
associations; and if they chose to attend, it was not for the tribunes of the
plebs to decide as to the law in the matter. The word plebs in the statute is
susceptible of an easy explanation. As the comitia curiata and comitia
centuriata, under patrician presidents, had from the beginning been termed
populus, nothing could be more natural than that from the time an assembly
convened under plebeian presidency for plebeian objects, the latter should
by way of distinction be termed plebs, even though the few patricians were
included. Ordinarily the plebeians must have welcomed patricians to their
assemblies, as the presence of magistrates and senators and their sons added
dignity and weight to the proceedings. But when the patricians used all their
superior influence in both lawful and unlawful ways to block a popular
measure, the tribunes, naturally wishing then to exclude them, attempted to
establish the principle that tribunician assemblies were exclusively
plebeian. This question was settled by the law of Publilius Philo, 339.[1680]
This article of the Valerian-Horatian statute was a concession extorted
from the patrician government by the strongest pressure, perhaps by a
plebeian secession. The actual advantage which it brought to the plebs was
minimized, however, by the provision that the previous consent of the
senate was essential to the validity of bills brought before the tribunician
assembly.[1681] The patricians could urge in support of this arrangement that
as their magistrates according to long established custom always obtained
the previous consent of the senate (senatus consultum) to measures brought
before any assembly, and were absolutely required to obtain senatorial
sanction (patrum auctoritas) for curiate and centuriate laws and elections,
[1682]
the tribunes, who were free from the trammels of the sanction, should
be legally compelled to consult the senate before bringing a measure into
their assemblies, especially as their legislation was in a field hitherto
monopolized by the patrician magistrates and the senate. Although the
tribunes of the plebs would have preferred to understand by the term

plebiscite all that it had meant before—the unconditioned resolution of the
tribal assembly under their presidency—they must have felt satisfied for the
time being with the great gain they had made, however strenuous they
afterward became to relieve themselves of senatorial control. This condition
on the validity of the plebiscite is not expressly mentioned by Livy in
connection with the Valerian-Horatian legislation, but is assumed by the
sources for the following period.[1683] The same thing is clearly implied,
too, in the long series of political struggles which came after the enactment
of the Valerian-Horatian statute.[1684] Had the tribunes been free to legislate
without interference on the part of the senate, they would have been in a
position easily to complete the social and political equalization of the
orders, and by one sweeping reform law to place themselves and their
constituents in the condition reached by an almost uninterrupted conflict of
a hundred and sixty years (449-287).[1685]
It was in accordance with this regulation that another article of the
Valerian-Horatian statute directed the aediles of the plebs to preserve the
senatus consulta in the temple of Ceres.[1686] We cannot look upon these
officials as keepers of the senatorial archives of that time,[1687] and hence
must conclude that the documents in their charge were those decrees which
authorized the presentation of tribunician bills, for with those alone the
plebeians were directly concerned.
The patricians expected to find a further safeguard in the tribunician veto,
which could be directed against a colleague.[1688] From the fact, however,
that the tribunes continued to resort to the clumsy method of obstructing the
levy, and afterward also of impeding the collection of the tributum,[1689] we
must infer that as yet their intercession did not prevail against a patrician
magistrate.[1690] Various popular seditions, too, are mentioned for the same
period (449-287).[1691] That one which led to the Hortensian legislation is
historical, and it is hardly possible that all the others are fictions.
Another conservative check was the application of oblative auspices to
the plebeian assembly.[1692] Livy[1693] reports that in 293 the tribunes
resigned because of a faulty election, held probably in violation of oblativa.
In general, however, the plebeian gathering was relatively free from
religious control till after the enactment of the Aelian and Fufian laws

(about 150).[1694] It had the advantage of the comitia centuriata (1) in
freedom from the impetrative auspices, (2) in freedom from the patrum
auctoritas, (3) in mobility. Immediately after the adoption of the Valerian-
Horatian statute it must have become evident that the tribunician assembly,
through the character of its presidency, its composition, and its democratic
spirit, was to outstrip the centuriate gathering in energy and aggressiveness,
and to be in a word the chief factor of progress in legislation.
No enactment affecting the jurisdiction of tribunes is referred to Valerius
and Horatius by the ancient writers; and yet the arrangement by which they
thereafter brought their capital actions before the centuries could not have
been made without the consent of the government. If, on the other hand, the
tribunes now possessed an unconditioned power to subject patricians,
whether magistrates or private citizens, to capital prosecutions, they would
have found it so effective a means of political warfare as no longer to need
obstruction and sedition in their struggle for plebeian rights. In capital cases
the permission of a higher magistrate, ordinarily after 367 the praetor, was
required; and before the enactment of the Hortensian statute, we may well
believe, the tribunes had no means of forcing this permission. Some similar
restriction must have been placed on their liberty to bring finable actions.
The comitia tributa under tribunician presidency had at length become an
effective constitutional factor in legislation and in jurisdiction. But its
action in the former sphere was dependent upon the favor of the senate, in
the latter on that of a patrician magistrate. The range, too, of its legislation
was restricted by the wide administrative powers of the senate. We shall
find it in the following period winning freedom and enlarging the field of its
activity.
The following literature is for the whole period from 449 to 287.
Schulze, C. F., Volksversammlungen der Römer, 341-70; Hüllmann, K. D., Staatsrecht des
Altertums, 354-67; Niebuhr, B. G., Römische Geschichte, i. 624 ff., Eng. 283 ff.; see also index, s.
Tributcomitien; Schwegler, A., Röm. Geschichte, see index, s. Tributcomitien; Mommsen, Th., Röm.
Staatsrecht, iii. 300 ff.; Röm. Forschungen, i. 151-66; Röm. Strafrecht, 462-8, 473-8, 1014-6, et
passim; Ihne, W., History of Rome, bk. VI. chs. i, viii; Ueber die Entstehung und die ältesten
Befugnisse des röm. Tribunats, in Rhein. Mus. N. F. xxi (1866). 161-79; Entwickelung der
Tributcomitien, in Rhein. Mus. N. F. xxviii (1873). 353-79; Peter, C., Gesch. Roms, bks. ii, iii; Lange,
L., Röm. Altertümer, i. 586-681, 821-56; ii. 459-94, 533-42, 565-97, 613-42; De legibus Porciis
libertatis civium vindicibus, in Kleine Schriften, i. 342-429; De plebiscitis Ovinio et Atinio disputatio,
ibid. ii. 393-446; Ueber das poetelische Gesetz de ambitu, ibid. ii. 195-202; Kleineidam, F., Beitr. z.
Kentniss d. lex Poetelia, in Festg. f. F. Dahn, ii. 1-30; Ihm, Ambitus, in Pauly-Wissowa, Real-Encycl.

i. 1800-3; Madvig, J. N., Verfassung und Verwaltung des röm. Staates, i. 234-46; Voigt, M., XII
Tafeln, i. 683-90; Karlowa, O., Röm. Rechtsgeschichte, i. 409; Girard, P. F., Histoire de l’organisation
judiciaire des Romains, i. 149-59, 237 ff.; Puchta, G. F., Cursus der Institutionen, i. (10th ed. 1893)
166-9 (on lex and plebiscite); Mispoulet, J. B., Institutions politiques des Romains, i. 207-30; Études
d’institutions Romaines, 66-81; Willems, P., Droit public Romain, 160 ff., 173 ff.; Greenidge, Legal
Procedure of Cicero’s Time, 327-49; Herzog, E., Geschichte und System der röm. Staatsverfassung, i.
153 ff., 189-96, 216 ff., 248-64, 279-88, 1128-88; Glaubwürdigkeit der Gesetze bis 387 der Stadt;
Lex Sacrata und das Sacrosanctum, in Jahrb. f. Philol. xxii (1876). 139-50; Dupond, A., De la
constitution et des magistratures Romaines sous la république Romaine, 75 ff.; Borgeaud, C.,
Histoire du plébiscite, 57-76, 117-67; Hallays, A., Comices à Rome, ch. iii; Morlot, E., Comices
électoraux sous la république Romaine, ch. iv; Ptaschnik, J., Die Wahl der Volkstribunen vor der
Rogation des Volero Publilius, in Zeitschr. f. österreich. Gymn. xiv (1863). 627-38; Publilische
Rogation, ibid. xvii (1866). 161-200; Die Centuriatgesetze von 305 und 415 U. C., ibid. xxi (1870).
497-525; Lex Hortensia 473 U. C. ibid. xxiii (1872). 241-53; Stimmrecht der Patricier in den
Tributcomitien, ibid. xxxii (1881). 81-102; Ruppel, K. W., Teilnahme der Patrizier an den
Tributkomitien; Soltau, W., Gültigkeit der Plebiscite, in Berliner Studien, ii (1885). 1-176; Clason, D.
O., Kritische Erörterungen über den röm. Staat, 30-9; Schmidt, J., Die Einsetzung der röm.
Volkstribunen, in Hermes, xxi (1886). 460-6; Meyer, E., Der Ursprung des Tribunats und die
Gemeinde der vier Tribus, in Hermes, xxi (1895). 1-24, controverted by Vassis, in Athena, ix (1897).
470 ff.; Pais, Ancient Italy, chs. xx, xxi; Garofalo, F. P., L’origine e l’elezione dei tribuni e degli edili
della plebe con un indice alfabetico dei loro nomi; Podestà, G., Il tribunato della plebe in Roma dalla
secessione sul monte sacro all’approvazione della legge di Publilio Volerone; Eigenbrodt, A., De
magistratuum Romanorum iure intercedendi; Ackermann, H., Ueber die raümlichen Schranken der
tribunizischen Gewalt; Tophoff, De lege Valeria Horatia, Publilia, Hortensia; Hennes, Das dritte
valerisch-horatische Gesetz und dessen Wiederholungen; Long, G., On the Passage in Appian’s Civil
Wars (i. 8) which relates to the Licinian Law, in Classical Museum, iii (1846). 78 ff.; Kubitschek,
Aedilis, in Pauly-Wissowa, Real-Encycl. i. 448-64; Humbert, G., Aedilis, in Daremberg et Saglio,
Dict. i. 95-100; Bloch, L., Die ständischen und sozialen Kämpfe in der römischen Republik;
Willoughby, W. W., Political Theories of the Ancient World, ch. xvi; Strachan-Davidson, T. L.,
Decrees of the Roman Plebs, in Eng. Hist. Rev. v (1890). 462-74; Dreyfus, R., Les lois agraires sous
la république Romaine, pt. I. chs. i-iii; De Sanctis, G., Storia dei Romani, I. chs. xiii, xiv, xvii;
Billeter, G., Gesch. d. Zinsfusses, 115 ff.

CHAPTER XIII
THE COMITIA TRIBUTA AND THE RISE OF POPULAR
SOVEREIGNTY
From 449 to 287

For a time after the Valerian-Horatian legislation the senate and
magistrates, as was intimated at the close of the preceding chapter,
maintained their authority but slightly impaired against the rising popular
power. It is true that in 427 the centuries acquired the right to declare a war
of aggression.[1695] Defensive wars in behalf either of Rome or of an ally
were regularly decided upon by the senate;[1696] and the question whether
the war was necessary for the safety of the state admitted of a broad
interpretation.[1697] From the beginning of the period to the year 321 treaties
of peace and of alliance were still made either by a magistrate, with the
authorization of the senate,[1698] or more commonly by the senate itself,
even though the alliance or offer of protection was such as to render war
with other states inevitable;[1699] and at the close of a conquest the senate
disposed of the acquired territory and population.[1700] Through its authority
alone, till 332, the censor bestowed the perfect or the limited citizenship.
[1701]

In the affairs of peace it retained almost as absolute power of
administration as in the preceding period.[1702] We find it, accordingly,
authorizing a magistrate to vow games and the erection of a temple in the
event of victory,[1703] providing for the restoration of the city after the
Gallic conflagration,[1704] for the building of temples,[1705] introducing pay
for military service,[1706] levying the taxes,[1707] dividing the public lands
among the citizens,[1708] founding colonies,[1709] and recalling under
penalty of death those who without permission had gone out to colonize a
captured city,[1710] directing the appropriate college to consult the Sibylline
books,[1711] and ordering the aediles to take measures against the inroad of
foreign superstitions,[1712] and the consuls to punish with rods and
beheading the instigators to revolt among the allies.[1713] It was in
obedience to a decree of the senate that the consul, or military tribune with

consular power, suspended his own imperium and that of his colleague or
colleagues by the appointment of a dictator,[1714] who had power to compel
the resignation of all other magistrates.[1715] Or the senate could directly
order the magistrates to retire from office, with or without a scruple as to
the auspices.[1716] It rewarded successful commanders with triumphs[1717] at
the expense of the state[1718] and in time of especial danger it armed the
consuls with absolute imperium.[1719] In the face of an opposing force so
vast as here indicated, the assemblies for a time made slow headway. The
development of their functions through the period between the Valerian-
Horatian and the Hortensian legislation will now be followed.

I. Elective

Appreciating the great possibilities of the tribunate, the patricians
attempted to fill the college with men of their own rank. If we are to trust
our authorities, an effort was made in that direction immediately after the
fall of the decemvirs, when it was agreed that the pontifex maximus should
preside over the tribal comitia for the election of the first tribunes of the
plebs under the restored constitution.[1720] Among the men chosen were
some so closely attached to patrician interests that at the end of the year
they secured the election of successors who coöpted into the college two
patricians of consular rank.[1721] At this crisis there was great danger that
the college of tribunes might become a possession of the patricians. It was
averted, however, by a certain tribune, L. Trebonius, who succeeded in
carrying a law that whoever presided over the comitia for the election of
tribunes should continue till ten tribunes were elected, the object being to
preclude coöptation. The tribune who violated this law was to be burned
alive.[1722] That part of Livy’s account which assigns the author of the law
to the year 448 is improbable. A half century later (401) he informs us, it
happened that two places left vacant in the college were again filled by the
coöptation of patricians and, by the strangest accident, a Cn. Trebonius was
among their colleagues. His complaint that the Trebonian plebiscite and the
leges sacratae were being violated had, in Livy’s opinion,[1723] no result.
Probability greatly favors the later date for the law, especially as an instance
of coöptation is mentioned between the two dates;[1724] the name of

Trebonius or of one or more patricians in the college of 448[1725] was
enough to lead the historian astray. The later date fits well the political
condition of the time; the patricians, almost succeeding in monopolizing the
military tribunate with consular power, proceeded to lay hands on the
plebeian tribunate—a far more valuable prize. After 401, however, the
Trebonian law proved effective in excluding patricians from the tribunate of
the plebs. Henceforth all plebeian officials were elected by the tribes under
tribunician presidency.[1726]
In granting the tribal assembly a share in law-making the senate must
have hoped to convert it into an organ of the patrician government. Shortly
after the Valerian-Horatian legislation, accordingly, patrician magistrates
began to convoke this assembly for the election of quaestors (447)—
previously appointed by the chief magistrates[1727]—and afterward of
curule aediles (367),[1728] military tribunes,[1729] and other minor officials.
[1730]

II. Judicial

a. TRIBUNICIAN

By an arrangement referred to in the preceding chapter,[1731] partly based
on the law of the Twelve Tables relating to capital cases[1732] and further
developed in 449, possibly by an article of the Valerian-Horatian statute, a
division of popular jurisdiction was made between the centuriate and the
tribal assemblies, on the basis of a distinction in the nature, not of the crime,
but of the penalty.[1733] The tribes punished with fines, the centuries with
the extreme penalty—banishment or death, to which was always added total
confiscation of property. The prosecutor, accordingly, first thought of the
penalty, to which he then attempted to adapt the form of action. The people
were not guided to their decision by legal formalities and precedents,[1734]
but were often swayed by the emotions of favor and anger.[1735] No juror’s
oath was imposed upon them to decide according to law and without
personal or party bias, such as the Athenian heliasts swore. If the
prosecutor, in addition to believing that the case merited the severest
punishment, hoped to persuade the people to vote the death or banishment

of the accused, he pronounced a capital condemnation, and the case was
accordingly appealed to the centuriate assembly. If on the other hand he
doubted whether he would be able sufficiently to excite the anger of the
populace against the accused, however heinous the crime may have been in
his own opinion, he satisfied himself with a finable action, and allowed it to
go before the tribes. Sometimes while the evidence was being taken in the
latter form of action, the rage of the people was so inflamed against the
accused that they clamored for the extreme penalty, in which case the
prosecutor might change the form of action agreeably to their wishes.[1736]
The greater ease with which the tribes were summoned, together with the
growing disinclination of the people to pronouncing the death penalty,
induced the magistrates more and more to make use of finable rather than of
capital actions. Fines were generally estimated in cattle and sheep till in 430
the consuls L. Julius and L. Papirius Crassus passed a centuriate law
establishing a hundred pounds of copper as equivalent to an ox and ten to a
sheep.[1737] Probably the same law provided that no fine should exceed half
the value of the estate on which it was levied.[1738]
For the period immediately following 449 the authorities—uncritically as
will soon be made evident—assign to the tribunes of the plebs a formidable
jurisdiction in finable actions, not only over private persons,[1739] but also,
on account of official misconduct, over functionaries of every grade from
ambassadors and tresviri coloniae deducendae to consuls and dictators.
Such prosecutions were usually brought after the retirement of the accused
from office. A chronological list of the principal cases reported will be
instructive.
In 442 the three commissioners for conducting a colony to Ardea were
prosecuted by the tribunes on the ground that, by enrolling Ardeates in
place of Romans in the list of colonists, they had circumvented the law
which called their commission into being. The action would probably have
been finable; but the accused avoided trial by remaining in the colony.[1740]
In 423 M. Postumius and T. Quinctius, retired tribunes with consular power,
were tried for mismanagement of the war with Veii. The former was fined
10,000 asses; the latter was exculpated by all the tribes.[1741] In 401 two
other retired tribunes with consular power were prosecuted by the tribunes
of the plebs and fined each 10,000 asses.[1742] The imposition of a fine on

Camillus, 391, has already been considered.[1743] In 389 a tribune of the
plebs brought an accusation against Q. Fabius on the ground that the latter
while ambassador to the Gauls had fought against them in violation of the
law of nations. The accused suddenly died, possibly by suicide, before the
day of trial.[1744] In 362 the dictator of the preceding year, L. Manlius, was
prosecuted by a tribune because, though appointed for the sole purpose of
driving the nail, he had nevertheless made a levy of troops and that with
extreme cruelty. But the prosecutor dropped the accusation, intimidated by
the son of the accused.[1745] This is the view of Livy, whereas Cicero[1746]
states the ground of the charge to have been the addition of a few days to
his dictatorship. If historical, the prosecution may possibly have been for
perduellio, and in that case it would have come before the centuries.
The following cases are historically more certain. Lucius Postumius,
prosecuted by the tribunes of the plebs in 293 for the misuse of his
consulship of the preceding year, escaped trial by becoming the legatus of
the consul Carvilius. The charge was that in his campaign he had not
limited himself to the province assigned him by the senate.[1747] Evidently
the intention of the prosecutor was not serious.[1748] The consul Q. Fabius
Gurges of the year 292, defeated in battle, was recalled, and his conduct
was impugned before the people. The past services and the promises of his
father saved him, and he continued his consulship with greater success. The
accusation probably did not take the form of a trial, but was presented in a
resolution to remove him from office[1749] or at least from the command of
the army. L. Postumius, third time consul in 291, employed his army to
work on his own estate; and on the expiration of his office he was brought
to trial therefor by the tribunes and condemned.[1750]
In the period under discussion, 449-287, a single effort to hold the
plebeian tribunes responsible for their official conduct is reported. In 293
two retired tribunes were condemned to a fine of 10,000 asses each on a
charge of having favored the patres by interceding against the proposals of
colleagues.[1751] This instance, if historical, is the only one of the kind
before the revolution. The tribunes doubtless felt that the prosecution of
their predecessors rendered their own future unsafe.
Several attempts were also made by legislation to reach results equivalent
to judicial sentences. In spite of the prohibition of privilegia by a law of the

Twelve Tables, Sp. Maelius, a tribune of the plebs in 436, tried to carry a
resolution for the confiscation of the property of Servilius Ahala; but the
people rejected it.[1752] Another privilegium was the resolution of the plebs
of 368 which threatened M. Furius Camillus with a fine of 500,000 asses,
should he use his dictatorship to obstruct the Licinian-Sextian bills then
under discussion.[1753] It was certainly not supported by a senatus
consultum, and probably the proposers had no serious intention of carrying
it into effect.
In reviewing the finable actions alleged to have been brought by the
plebeian tribunes during the two centuries which intervened between the
institution of their office and the Hortensian legislation, as in the case of the
capital actions,[1754] we are struck by the relatively small number belonging
to the latter part of the period; in fact to the time following 362 two cases
only are assigned, one of which is insignificant. The conclusion we must
draw from this fact is similar to that expressed with relation to the capital
cases—that the finable actions attributed to the earlier period are in all
probability largely unhistorical, and that before the enactment of the
Hortensian law the jurisdiction of the tribunes in finable cases was limited
and rare.

b. AEDILICIAN

For some time after their institution the tribunes of the plebs, having no
viatores or at least none that were recognized as public officials,[1755]
depended upon the two plebeian aediles as bailiffs for making arrests and
for executing sentences.[1756] The latter functionaries seem to have stood in
some such relation to the tribunes as the quaestors toward the consuls. It
was accordingly as deputies of the tribunes that they acquired jurisdiction.
[1757]
The earliest mentioned case, 454, is the trial and condemnation of a
retired consul in a finable action for official misconduct.[1758] It should be
placed in the same mythical category with the numerous tribunician
prosecutions of the period.[1759] After the institution of curule aediles, 367,
the aediles of the plebs continued indeed to serve occasionally as bailiffs of
the tribunes,[1760] but acquired in addition, along with those of curule rank,
an independent jurisdiction. In 357 C. Licinius Stolo was prosecuted by M.
Popillius Laenas on the charge of having circumvented his own law by

emancipating his son in order that he and his son might each possess five
hundred iugera of the public land. He was fined 10,000 asses.[1761] From the
cases to be mentioned below the inference may be drawn that the accuser
was an aedile. In 298 several persons were prosecuted by the aediles,
whether curule or plebeian is not stated, for violation of the same law, and
hardly one was acquitted.[1762] In 295 the plebeian aediles made
considerable money by fining those who had trespassed against the article
of the Licinian-Sextian statute which related to pasturage;[1763] and two
years afterward violators of the same provision were again fined, on this
occasion by the curule aediles.[1764] Actions against usurers were brought
by aediles in 344,[1765] 304,[1766] and 295.[1767]
Shortly before 328, M. Flavius was prosecuted before the people by the
aediles for the crimen stupratae matris familiae, and acquitted.[1768] In 295
Q. Fabius Gurges, a curule aedile,[1769] accused several matrons before the
people, also of stuprum, and fined them.
In the period between the Licinian-Sextian and the Hortensian
legislation, accordingly, the jurisdiction of the aediles, so far as is known,
was limited to usury, stuprum, and the violation of laws regarding the
occupation and pasturage of the public land. They had nothing to do with
perduellio or related offences, or with the accountability of magistrates, or
with any capital actions whatsoever. All their trials were finable, and in case
the fine exceeded thirty cattle and two sheep, or the equivalent, 3020 heavy
asses,[1770] an appeal could be made to the tribes. The plebeian aediles
equally with the tribunes[1771] lacked the power to summon patricians,
whereas the curule aediles as patrician magistrates[1772] possessed the right;
but no distinction in the composition of these tribal assemblies,
corresponding to the form of presidency, is suggested by the sources.[1773]

III. Legislative

The legislative function of the tribal assembly under tribunician
presidency after the decemvirate (451-450)[1774] is represented as bringing
forthwith into being the Icilian and Duillian plebiscites of 449. That of
Icilius granted amnesty to those who had seceded from the decemvirs.[1775]

The first plebiscite of Duillius provided for the election of consuls cum
provocatione.[1776] Both acts are alleged to have been passed, however,
before the resolutions of the plebs had acquired the force of law. The second
Duillian plebiscite, which followed the enactment of the Valerian-Horatian
statute, and which was therefore valid for all the citizens, threatened with
scourging and death any one who left the plebs without tribunes or who
caused the election of a magistrate without appeal.[1777] Its first provision
was merely the expression of a principle on which the plebeians, had from
the beginning insisted as essential to the continuance of the office from year
to year;[1778] the second clause precluded the recurrence of an elective
magistracy like the decemvirate just past.[1779] According to Diodorus[1780]
an agreement was made in this year between the patricians and plebeians by
which one consul at least should be a plebeian. Although Diodorus
generally drew from sources more ancient than those of Livy, he is wrong
in assigning this provision to so early a date.[1781]
For the same year is recorded another Icilian plebiscite, which granted
the privilege of a triumph to the consuls after the senate had refused it.[1782]
The alleged act is suspicious, in the first place, because the two consuls
must have had the support of a majority in the senate, as the acceptance of
their great constitutional statute proves. Then, too, a resolution of the people
for granting the triumph could not avail in this period without the consent of
the senate. The last observation applies as well to the alleged refusal of the
senate to ratify an act of the people in 356 for granting a triumph to the first
plebeian dictator.[1783] Such a resolution merely assured the triumphator
that the people would be present at the festival. Without the consent of the
senate, they could not appropriate the necessary funds for the occasion;[1784]
but the general always had a right to triumph, in earlier time within the city
and later on the Alban Mount, at his own expense.[1785] If the senate
decreed the triumph, as remained the rule,[1786] ratification by the people
was unnecessary, though it sometimes occurred.[1787]
The Trebonian plebiscite, 448 or more probably 401, has already been
discussed.[1788] The interest of the plebs in enhancing the dignity and
importance of their own order manifested itself not only in this act but also
in the Canuleian plebiscite of 445, which reëstablished conubium between
the patricians and plebeians after it had been forbidden by a law of the

Twelve Tables.[1789] Closely related is the centuriate law of the same year
for the institution of tribunes of the soldiers with consular power to be
elected indiscriminately from the two social classes.[1790]
Slightly earlier, if we may trust our sources, the people were given an
unwonted opportunity to share in the decision of questions relating to
foreign affairs; and the favor fell to the comitia tributa under patrician
presidency, which had convened in this form for the first time in 447 for the
election of quaestors.[1791] The question before this assembly in 446 was the
arbitration of a dispute between Ardea and Aricia concerning a piece of
territory. The contestants brought the case before the Roman senate, which
usually decided such matters on its own responsibility, but which in this
instance requested the consuls to refer the business to the tribes. The aim of
the senate must have been to throw the odium of the decision upon the
people, who, disregarding the claims of the two contestants, lost little time
in adjudging the disputed property to Rome.[1792] This act did not serve as a
precedent for further interference of the assembly in foreign affairs; and
when in 427 the people acquired the right to declare an offensive war,[1793]
the function fell to the centuries rather than to the tribes. Apart from this
gain the comitia made little progress[1794] in the period between the
Canuleian and the Licinian-Sextian legislation, 445-367. Few legislative
acts of the tribes are recorded: the plebiscite which provided in a time of
famine for the election of a prefect of the market, 440;[1795] the historically
questionable plebiscite which forbade candidates for office to whiten their
garments, 432;[1796] the plebiscite of 414 for the creation of a special court
to try a case of murder;[1797] the act, probably a plebiscite, which forbade a
patrician to dwell on the Capitoline, 384.[1798]
Doubtless in this period there was much agrarian agitation on the part of
the tribunes, although we cannot be sure that any of the bills mentioned by
Livy[1799] are historical. In like manner the leaders of the plebs, as
candidates for the consular tribunate, are represented as agitating for the
institution of pay for military service, the money to be derived from rents of
public lands.[1800] When the reform came, however, it was by a voluntary
concession of the senate extremely annoying to the tribunes, who found
themselves thus deprived of a useful ground for complaint, 406.[1801]
Epoch-making were the Licinian-Sextian laws, the first, 368, increasing the

duoviri sacris faciundis to decemviri and providing that five should be
plebeian,[1802] the second, 367, containing in Livy’s opinion four articles:
(1) that one consul must be plebeian,[1803] (2) that the interest already paid
on debts should be deducted from the principal and the balance rendered in
three equal annual instalments, (3) that no one should occupy more than
five hundred iugera of the public land,[1804] (4) that the right to pasture
cattle and sheep on the public land should also be limited.[1805]
Thereafter we find the tribal assembly more active in legislation. To the
year 358 is assigned the first well-authenticated lex de ambitu, the Poetelian
plebiscite, which forbade candidates for office to visit markets and meeting-
places outside the city for electioneering purposes.[1806] The motive,
however, which Livy attributes to the author—to prevent the further
enlargement of the patricio-plebeian nobility through the admission of new
men—was hardly possible at this early date.
In 357 tribal comitia under patrician chairmanship passed a law for
placing a tax of five per cent on manumissions of slaves. The circumstances
attending this meeting were peculiar; the consul Cn. Manlius summoned to
it the soldiers of his army in the camp at Sutrium.[1807] It must have been
composed, therefore, of a small minority of the citizens, lacking not only
those who were too old for service, but doubtless a majority of the men of
military age. Difficulties regarding the auspices, too, and other formalities
might have arisen; and yet in spite of the fact that the enactment of the law
was an intrusion within the administrative domain of the senate, the patres
gave their sanction;[1808] and the legality of the measure was never called in
question.[1809] In contrast with the general prevalence of free labor in early
Rome, the number of slaves since the conquest of Veii had become
considerable; and wealthy individuals were evidently beginning the practice
of building up a political following through the clientage of their freedmen,
to the disadvantage of the older plebs. The majority of the patricians must
have been in sympathy with the effort of their consul to check this new
development, although they could not approve the peculiar means by which
the law was passed. Nor could the tribunes of the plebs allow legislation to
be thus removed beyond the sphere of their control. The repetition of the
procedure was immediately forbidden accordingly by a plebiscite which
threatened with the death penalty any magistrate who held comitia away

from the city.[1810] In the same year the people took a further step in the
administration of finance by enacting the Duillian-Menenian plebiscite for
establishing the rate of interest at ten per cent[1811]—thereby confirming a
law of the Twelve Tables[1812]—and five years later the consular law of P.
Valerius Publicola and C. Marcius Rutilus for the institution of a bank under
the direction of five commissioners to assist debtors in meeting their
obligations (352).[1813] The latter was followed in 347 by a plebiscite which
reduced the maximal rate of interest to five per cent and provided for the
payment of the principal in four equal annual instalments.[1814]
This activity of the people in financial legislation is to be explained by
the economic distress which lasted many years, and which the measures
thus far mentioned failed to remedy. There can be no doubt that the general
indebtedness and the resultant discontent of the masses, assigned by the
annalists to the earliest years of the republic, belong in reality to the period
now under consideration. The murmurings of the debtors culminated in 342
in a military mutiny, with which the masses of citizens seem to have been in
full sympathy. The demands of the soldiers and civilians were met (1) by a
law of the dictator Valerius, which, remedying other grievances of the
soldiers, is said to have proclaimed an abolition of debts,[1815] (2) by the
plebiscite of L. Genucius, tribune of the same year. The provisions of the
latter were as follows: (1) it forbade the lending of money on interest; (2) it
ordered that no one should fill the same office within a period of ten years,
or two offices at the same time;(3) it allowed both consuls to be plebeian.
[1816]
Although Livy, failing to find the Genucian law in all his sources,
hesitates to accept it as historical, there seems to be no cogent ground for
disbelieving that such a statute was actually passed.[1817] The legal rate of
interest had recently been lowered one-half; and the plebeians, not satisfied
with the temporary relief afforded by the cancellation of debts, hoped for all
time to free themselves from an intolerable affliction by one sweeping
legislative act. This article of the plebiscite, however, probably remained
from the beginning a dead letter. The second continued unenforced for
many years,[1818] whereas the provision regarding two consuls had to wait
more than a century for its first practical application.[1819] The patricians
had often violated the Licinian-Sextian statute by placing two of their
number together in the consulship. Perhaps the third article of the Genucian

law was intended to make them respect the earlier statute by a threat to
exclude them entirely from this office. If this was the object of Genucius,
his means certainly proved effective.[1820]
Three years later the dictator Publilius Philo passed through the
centuriate assembly the statute (1) that plebi scita should be binding on all
the quirites; (2) that before the voting began the patres should give their
auctoritas to proposals brought before the comitia centuriata; (3) that one
censor at least should be plebeian (339).[1821] All three articles were alike
aimed against the political dominance of the patricians. The second freed
centuriate legislation from their control;[1822] the third[1823] assured to the
plebeians a just share in the function of determining the composition of the
tribes, hence of the civil and political status of every Roman. It was not
long afterward that the censors were to be given in addition the function of
revising the list of senators.[1824]
The first article has substantially the same form as the corresponding
provision of the Valerian-Horatian statute, 449, and of the Hortensian, 287.
[1825]
All manner of conjectures as to the relation of these three laws to one
another has been offered, the readiest theory being that the Valerian-
Horatian statute had become obsolete, and required reënactment.[1826] The
explanation is proved impossible by the circumstance that important plebi
scita were passed under the Valerian-Horatian provision, the last being the
Genucian. The Valerian-Horatian law could not have become obsolete in
three years. The true explanation is to be found in the fact, now well known
to historians, that the political ideas and political struggles assigned by our
sources to the fifth century b.c. belong mostly to the fourth. The setting of
the law of Publilius Volero, 471, was inaccurately transferred to it from the
law of Publilius Philo, 339. The very existence of the latter statute is proof
that the patricians were at that time declaring plebi scita invalid on the
ground that they were passed by only a part of the people—a complaint
recorded against neither the Canuleian nor the Licinian plebiscite. Hence, as
the sources indicate, the patricians were in the assembly which passed these
two measures. We may legitimately apply to the period from 449 to 339 the
story of the long but finally successful struggle on the part of the tribunes to
expel the patricians from the comitia tributa under plebeian chairmanship—
a story which the sources assign to the period ending in 367. The struggle
must be accepted as historical, for there was in later time no motive for

creating it; and as it must have been a matter of tradition rather than of
record, it could not well be placed earlier than the fourth century b.c. We
may suppose that the patricians yielded the more readily because they at
last recognized their inability simply by their votes to control the tribunician
assembly, and because from the beginning they disliked to submit to the
authority of a plebeian president. Hence their withdrawal from that form of
comitia was in the first instance voluntary. The assembly, therefore, which
adopted the Genucian plebiscite was de facto, though not de jure,
exclusively plebeian. When accordingly the patricians objected to its
validity on the ground that it was passed by but a part of the people,
Publilius Philo, the most eminent plebeian statesman of his age, carried
through the centuriate assembly the law above mentioned, that the
resolutions of the tribunician assembly as then constituted, of plebs only,
should be valid for all the people. This interpretation throws light on the
otherwise inexplicable circumstance that the Genucian plebiscite was so
indifferently enforced. The exclusion of the patricians was in line, too, with
the general policy followed by the plebeians against them in the fourth
century: the plebeians shut the patricians out (1) from the plebeian
tribunate, probably 401. (2) from five places in the college of decemviri
sacris faciundis, 368, and from one of the consular places, 367. (3) by
agreement from the two curule aedileships on alternate years, (4) from one
of the censorial places, 339. (5) from a fixed number of places in the
college of augurs and of pontiffs, 300. It was in accord with this tendency to
convert the earlier privileges of the patricians into disabilities that a vote of
the people excluded them from those comitia tributa which were presided
over by tribunes. This state of affairs was formulated in the antiquarian and
juristic definitions of populus and plebs, lex and plebi scitum. The
condition, however, seems to have been only transient. The dwindling of
the patriciate in numbers and strength, with the corresponding growth of a
plebeian nobility, which converted the tribunate and assembly of plebs into
most potent organs of the senatorial government, obliterated distinctions
between patricians and plebeians within the political assemblies, to such a
degree that for the period after the Hortensian legislation no reference to an
exclusively plebeian assembly is made by any ancient author. Although this
article of the Publilian statute was never formally repealed, we may feel
certain that the principle involved was no longer remembered in the age of
Cicero.[1827]

The Publilian statute of 339 is not known to have provided for an
extension of the field of competence of the tribal assembly; yet we find the
comitia tributa soon afterward attending to business heretofore managed by
the senate or in one or two instances by the centuries. Although about a
hundred years earlier the centuriate comitia had acquired the right to ratify
or reject declarations of offensive war,[1828] we find no record of a
ratification of a treaty of peace by the people before the year 321, in which
occurred the disaster at Caudium; and in this case it was not only the
common opinion in Livy’s time, but also the understanding of Claudius, the
historian, that the treaty made by the consuls, without the sanction of the
senate or the people, was regular and valid[1829]—a “foedus summae
religionis,” as Cicero declares.[1830] Even Livy, who aims to prove the
procedure defective, admits that the tribunes of the plebs[1831] and
Postumius,[1832] one of the consuls who made it, looked upon it as
legitimate. But according to Livy[1833] the senate itself declared the treaty
invalid on the ground that it lacked popular confirmation;[1834] and in that
body the principle was then enunciated that nothing which was to bind the
people could be sanctioned without their order[1835]—the first recorded
expression of the doctrine of popular sovereignty among the Romans. In
this period, however, the people were never called upon to ratify the
acceptance of a submission or of an alliance on unequal terms. Such
agreements granting Rome the superior right were negotiated, as in earlier
time, by the magistrate or senate or by both in conjunction.[1836] The details,
too, of every treaty were still left to the magistrates and senate, so that to the
end of the republic the senatus consultum continued to be indispensable.
[1837]
But from the time of the Caudine misfortune, and in consequence of
it, the principle was established that a treaty involving a concession of even
equal rights on the part of Rome required the sanction of a popular vote.
Recorded instances of such ratification for this period (321-287) are rare.
[1838]
The function fell to the comitia tributa under patrician or plebeian
presidency, which in its exercise showed more independence[1839] than did
the comitia centuriata in the declaration of wars. In this way the tribal
assembly took its place by the side of the centuriate in international affairs.
[1840]

The absolute power to bestow the citizenship exercised by the kings[1841]
would naturally pass undiminished to the consuls, and thence to the censors
on the institution of the latter. It is in fact the opinion of Lange[1842] that
these magistrates respectively exercised full rights in the matter, and that
they consulted the senate in important cases only. At all events the question
is simply as to the relative participation of the magistrates and the senate in
the function. The final settlement of Latium after the war, involving the
bestowal of citizenship, 338, the senate seems to have attended to alone
through a consultum, no mention being made of the people.[1843] In the
whole course of Roman history to 332 there is no record of a grant of
citizenship by popular vote.[1844] As the Acerrani were left out of account
by the senatus consultum above mentioned, L. Papirius in 332 through the
first recorded pretorian law granted them the civitas sine suffragio.[1845] In
opinion of Lange,[1846] based upon a statement of Velleius,[1847] the censors
of the year, Q. Publilius Philo and Sp. Postumius, while enrolling the new
citizens, probably obtained a senatus consultum requesting the praetor to
bring this subject before the tribes. That a senatorial decree was essential is
proved by the case of the Privernates mentioned below. We may well
believe that the great plebeian statesman Publilius gladly embraced the
opportunity to make the tribal assembly a partner in the important function
of imparting the rights of the city. Three years afterward an order of the
people, doubtless of the tribes, ex auctoritate patrum, granted the citizenship
to the Privernates, 329.[1848] By what authority the Hernicans received the
civitas sine suffragio in 306 is not stated.[1849] Long after the Hortensian
legislation the principle was established that the people alone without the
authorization of the senate had a right to bestow the ius suffragii on
whomsoever they pleased.[1850] Logically the function should have fallen to
the comitia centuriata as the source of censorial power; but the tribal
assembly assumed it because of its connection with the making of treaties.
[1851]

It was the province of the centuriate assembly to introduce permanent
regulations of existing magistracies and to institute new ones;[1852] but the
function was now transferred, silently so far as we know, to the tribes. Far-
reaching in its effect was the creation of the promagistracy in 327. No
prolongation of an official power is known to have occurred before this

date. The extension of the territory of Rome and of her military operations
was now calling for greater elasticity in the duration of commands; but in
the face of a strong movement toward popular rights the senate dared not
assume the responsibility of so sweeping an innovation. It placed in the
hands of the tribunes, accordingly, the business of bringing before the
people a rogation for prolonging the imperium of the consul Q. Publilius
Philo to the end of the war with Naples, instituting by this precedent the
promagistracy.[1853] Again in 295 the imperium of the consul Volumnius
was prolonged for a year by a decree of the senate ratified by a plebiscite.
[1854]
After the custom had been established, however, the senate ordinarily
attended to the prolonging of the imperium, as in 308,[1855] in 296,[1856] and
in 294,[1857] consulting the people, as it seems, only in cases of tribunician
opposition.[1858] No instance of popular interference in the assignment of
provinces is mentioned before 295, when a resolution of the comitia tributa,
under what form of presidency is not stated, granted Etruria to the patrician
Fabius in preference to the plebeian Decius.[1859] This act was an inroad
upon the right of the magistrates to divide the business of their office
among themselves by agreement or lot. In 292 another resolution of the
people recalled from the field the consul Q. Fabius Gurges because of ill-
success in war with the Samnites. The senate was the prime mover in the
matter, but the form of assembly is unknown. The question concerned either
the abrogation of his magistracy or more probably his transfer to some other
activity.[1860] Even in the latter case the act of the people was a remarkable
deviation from their usual modest policy of dealing with officials.
In 318 a law, doubtless tribal, was passed for sending praefecti iure
dicundo to Capua;[1861] and similar laws were from time to time enacted for
assigning the same kind of officials to other communities of Italy.[1862]
These prefects continued to be appointed by the urban praetor till after 124.
[1863]
Whether the law of 318 was pretorian or tribunician cannot be
determined.[1864] Similar in character was the Atilian-Marcian plebiscite for
the election of sixteen military tribunes instead of six, 311.[1865] The
substitution of election for appointment was in effect the institution of a
magistracy—in this case merely an increase in number within a magisterial
college which had existed since 362. In the act of 311 the tribes usurped a
function which had hitherto belonged to the centuries.[1866] Although the

elective military tribunes remained subordinate to the consuls, the change
increased their dignity and in some degree their independence, while it
tended to impair the efficiency of the service. Naturally the office became a
stepping-stone to political honors. The Decian plebiscite of the same year
instituted the duumviri navales charged with the function of repairing,
equipping, and commanding the fleet.[1867] The two plebiscites of this year
have the appearance of a compromise between continental and commercial
interests under the influence of Appius Claudius Caecus the censor. Closely
related is the article of the Ogulnian plebiscite, 300, which provided for an
increase in the number of augurs and pontiffs.[1868] Here, too, belongs the
plebiscite of 296 for the appointment of commissioners for conducting
colonies.[1869] Henceforth it was the custom of the senate to refer to the
people the creation of all extraordinary offices, and their election to the
comitia tributa usually under pretorian presidency.[1870]
The people made a further advance when they undertook to regulate by
law the composition of the senate itself. To the period between the Publilian
legislation of 339 and the censorship of Appius Claudius Caecus, 312,
belongs the famous Ovinian plebiscite concerning the revision of the senate
list.[1871] It transferred the function from the consuls to the censors, and
required the latter under oath (iurati; MS. curiati) to enroll all who were
worthy among the retired magistrates of every rank, from the curule
functionaries down through those of plebeian standing to the quaestors.
[1872]

The Valerian-Horatian and Publilian statutes are evidence of the right of
the people to legislate regarding the composition and powers of their
assemblies. No longer content, however, with the making and repeal of
laws,—a right guaranteed by the Twelve Tables,[1873]—they began the
practice of occasionally suspending laws to the advantage or disadvantage
of individuals or of classes—in other words, the voting of privilegia.[1874]
There were repeated violations of that article of the Genucian plebiscite
which forbade reëlection to an office within a period of ten years,[1875] and
no mention is made of the necessity of a dispensation before the year 298,
when Q. Fabius Maximus is alleged to have objected to further reëlection
on the ground that such conduct was forbidden by law. Thereupon the
tribunes of the plebs declared that to remove the obstacle they would

propose to the people that he should be absolved from the legal
requirement.[1876] But in fact, as Lange[1877] has noticed, Fabius had not
been consul for ten years and was therefore legally eligible. Lange suggests
that this story of the dispensation may belong to his next election in 295.
[1878]
At all events the custom of granting dispensations began about this
[1879]
time, although we need not suppose that the patricians attached much
importance to the Genucian statute, which was adopted by an exclusively
plebeian assembly. This function assumed by the people of freeing from the
power of the law, often exercised in historical time by the senate as well,
marks a great advance toward popular sovereignty. The idea that the law
was sovereign, which had arisen in the early republic, was now yielding to
the idea that it was subject to the caprice of every popular gathering.[1880]
The aristocracy was giving way to a democracy, which under the conditions
destined to prevail at Rome could only mean mob-rule.
The right of the people in their tribal assemblies to legislate concerning
religion had already been established by the precedent of the Licinian-
Sextian plebiscite on the decemviri sacris faciundis[1881] and of other less
important acts.[1882] Immediately after the Publilian legislation the comitia
of tribes became more active in this field. To the period of the great Latin
war according to Cicero,[1883] hence necessarily to 338,[1884] belongs the
consular lex Maenia, which added to the Ludi Romani the day called
instauraticius,[1885] although less trustworthy accounts assign the
establishment of this day to 491.[1886] The law initiated by the senate in 304
forbidding the dedication of a temple or altar except by permission of the
senate or of a majority of the college of tribunes[1887] was probably passed
by the comitia tributa plebis. In the opinion of Lange[1888] it was either
identical with, or afterward supplemented by, the lex Papiria tribunicia,
which forbade the consecration of a temple, precinct, or altar without an
order of the plebs.[1889] The latter is the more probable; it seems reasonable
that, as Lange suggests, the right of the people in this matter developed
from the necessity of referring to them cases in which the senate and the
tribunes could not agree. Technically religious, though of vast political
consequence, was the Ogulnian plebiscite of 300, which increased the
number of augurs and pontiffs to nine each, and provided that four augurs

and five pontiffs should be plebeian.[1890] It was the last step in the opening
of offices to the plebs.
In their effort to gain control of the more important judicial business the
people made slower progress. In all probability it was not till after the
Publilian legislation that the centuriate and tribal assemblies began
regularly to exercise the function of appellate courts—a right established
long before by legislation[1891] and confirmed for the centuries by the
Valerian law of appeal in 300.[1892] The creation of special judicial
commissions—quaestiones extraordinariae—belonged originally to the
senate; and the establishment of such a court de caede through a plebiscite
in 414, if historical, was merely the execution of a senatus consultum.[1893]
The task of trying and condemning the matrons for poisoning in 331 must
have fallen to such a quaestio extraordinaria not expressly mentioned.
Whether it was instituted by the senate or the tribes cannot be known.[1894]
The special quaestio, too, concerning conspiracy, at first under dictatorial
and afterward under consular presidency, seems to have been instituted
solely by a senatus consultum.[1895] The Flavian rogation of 323 for
punishing the Tusculans for having given aid and encouragement to the
enemies of Rome[1896] may have aimed to create a special court for the
purpose, or it may have been an attempt to dispense justice by means of
legislation.[1897] However that may be, it was rejected by all the tribes but
one. The Satricans, who revolted to the Samnites after the Caudine disaster
and were conquered in 319, were punished by the senate acting as a special
court on the authority of the Antistian plebiscite.[1898]
The right of the people both in the centuries and in the tribes to legislate
on finance had before 339 been well established by precedent. Economic as
well as social in character was the lex Poetelia, which prohibited loans on
the security of the person,[1899] and which was proposed to the tribes, or
possibly to the centuries, by C. Poetelius Libo as consul in 326 or as
dictator in 313.[1900] It abolished contractual but not judicial servitude,
though it probably mitigated the latter.[1901] Politically more significant than
this individual act was the long-continued popular effort to gain control of
the disposal of the public land. It was to the detriment of the senatorial
prerogative that the tribunes of the plebs took up the agrarian question from
the time of Sp. Cassius,[1902] and continued almost unceasingly to agitate

for the limitation of the use of public land by the rich and the division of the
surplus among the poor, till they succeeded in embodying their ideas in the
Licinian-Sextian law on these subjects. Equally to the province of the
senate belonged the planting of colonies[1903] both from the military and
from the financial point of view. Here, too, the tribunes in the economic
interest of their constituents began early to agitate for a share in the
administration.[1904] It was not till 296 that they met with any success in this
direction, and then at the will of the senate, which charged the tribunes with
the business of introducing a plebiscite for ordering the praetor to appoint
triumviri for conducting colonies to certain specified places.[1905] This was
the modest outcome of centuries of agrarian and colonial agitation on the
part of the tribunes.
The fact is that after the enactment of the Genucian and Publilian laws
the plebeians continued for about a generation relatively content with their
economic condition. Frequent victories brought booty,[1906] and conquests
made extensive assignments of land possible.[1907] But the people must
have found the third Samnite war oppressive. Although of far shorter
duration than the second, it required larger armies and longer and more
distant campaigns. Under the burden of military service the plebs again fell
into debt, in spite of the unusual distributions of booty among the soldiers
when victorious.[1908] Their burden was rendered the heavier by the
circumstance that many of the wealthy were violating the Licinian-Sextian
restrictions on the use of public land and pasture, and were doubtless failing
to pay their dues[1909]—a course of conduct which rendered necessary not
only the assignment of the spoil of 293 to the aerarium but also the
imposition of a tributum especially vexatious to the plebs.[1910] The distress
was augmented by a pestilence which began in 295 and continued for
several years.[1911] Whereas all on actual service were by law exempt from
prosecution for debt, many citizens who remained at home were the victims
of the usurers, who were occasionally fined for their illegal exactions.[1912]
Again all the commons incurred hopeless debts, which at the close of the
war (290) the creditors must have proceeded to exact with their usual
ruthlessness. The institution of the tresviri capitales in the following
year[1913] is proof of the intention of the government to enforce the criminal
law with the utmost rigor. A new movement for the relief of debtors had

already set in, and the creditors were organizing resistance to the popular
demands. As long as the nobility could rely upon the tribunate of the plebs,
[1914]
they felt secure. Even if a bill for the benefit of the poor should be
presented, they believed their interests to be well fortified by tribunician
intercession and by the senate, which, composed chiefly of creditors, would
certainly refuse its sanction to such a measure. The grave economic distress,
however, at length filled the tribunate with men who were at one in
demanding a radical measure of relief, and who accordingly presented a bill
for the abolition of debts. Many times they offered it to the tribes in vain;
the senate refused its assent; for the creditors, among whom must be
counted a majority of the senators, hoped to recover both principal and
interest. Willing to compromise, the tribunes then offered the senate, if it
should yield, a choice of two alternatives, neither of which can be deduced
with certainty from the mutilated fragment of Dio Cassius, our authority for
this event. One of them, however, is conjectured to be that the principal
alone should be recovered,[1915] in what way cannot be made out; and the
other that the interest already paid should be deducted from the principal,
and the balance rendered in three equal annual instalments—a repetition of
the Licinian-Sextian provision regarding debts. At first the debtors were
willing to grant this concession through fear of failing to obtain any degree
of relief; but the creditors, now hoping to recover everything, refused to be
conciliated. After a time both parties shifted their attitude; the creditors
expressed themselves as satisfied to recover the principal merely, while the
debtors would no longer accept either alternative of the compromise. The
sedition, for such the conflict became, continued interminably; and although
the creditors yielded, little by little, far more than they had intended in the
beginning, the debtors made each concession the basis of a new demand.
They brought the long, serious struggle to a climax by seceding to the
Janiculum, at the very time when the Tarentines were completing the
organization of a coalition of Etruscans, Gauls, Samnites, and several other
peoples against Rome.[1916] Q. Hortensius, appointed dictator to meet this
crisis, carried through the comitia centuriata a group of provisions for
satisfying the demands of the seceders:

(1) Doubtless a clause for the relief of debtors, of which no
mention is made in our scant sources.

(2) A provision that without the consent either of the senate or of
the patrician portion of it a resolution of the plebs should be valid
for all the citizens.[1917]
At the time when the Valerian-Horatian statute provided that with
the consent of the senate resolutions of the tribunician comitia
tributa should have the force of law, the senate was still composed
exclusively of patricians; and the phrase senatus consultum in this
law was therefore considered a full equivalent of the patrum
auctoritas, the only difference being that the consultum was given in
advance of a popular vote and the auctoritas subsequently to it. But
when with the appearance of plebeians in the senate the two acts
began to drift more widely apart, the patricians successfully claimed
an exclusive right to the auctoritas, which, as we have seen,[1918]
was reduced to a formality, so far as centuriate legislation was
concerned, by an article of the Publilian law. So long as the
patricians voted in the tribunician comitia tributa, however, and
constituted a majority in the senate, they were willing to abide by
the specific declaration of the Valerian-Horatian statute which
conditioned the validity of the plebiscite on the senatus consultum.
But from 339 they were legally excluded from the tribunician
comitia tributa, and they foresaw, moreover, the end of their
majority in the senate. In the period between 339 and 287,
accordingly, they set up a new claim, based doubtless on the
practical intention of the Valerian-Horatian law, to be free from
plebi scita because the latter were passed without their auctoritas.
[1919]
If they could make good their intention, they would remain
unaffected by tribunician laws for the abolition of debt. But the
Hortensian statute settled finally the controversy to their
disadvantage. That it also rendered the consultum unessential to the
validity of the plebiscite is proved not only by later usage but also
by the statement of our sources that resolutions of the plebs were
placed by the Hortensian act on an equal footing with laws.
(3) Now that the tribunes were given equal freedom with the
patrician higher magistrates in initiating legislation, it was of
advantage to the nobility to bring the former into the closest
possible touch with the senate. Probably therefore the right of the

tribunes not only to sit in the senate, but also in the interest of their
business to summon that body and to preside over its sessions when
so convoked, was due to a provision of the Hortensian law.[1920]
(4) A correlate of the full power to initiate legislation was the
right to veto acts of the government, probably acquired by the
Hortensian statute.
(5) But the veto depended upon the power to prosecute.[1921] The
unlimited veto implied a right to bring finable or capital actions
independently of the will of the patrician magistrates. Either by a
provision of the Hortensian statute or as a direct consequence of it,
the tribunes acquired an unconditioned right to prosecute, being
now competent in capital cases to compel the praetor to grant the
auspices for holding the comitia centuriata. With the establishment
of their absolute power of intercession and jurisdiction they ceased
to resort to sedition.
(6) Another article provided that the market-days should be fasti,
allowing judicial business to be done thereon, but forbade the
meeting of voting assemblies on such days.[1922] The peasants who
came into the city to use the markets were thus afforded an
opportunity to have their law suits settled without being engrossed
by the duty of voting, though the magistrates were at liberty to
invite them to informal contiones.[1923] This Hortensian provision
was conservative in so far as it placed the tribunician assembly
under the same pontifical regulations of the calendar as those which
were to control the other forms of comitia.[1924]

The right of the people to elect their magistrates, with the exception of
the dictator and the master of horse, existed from the beginning of the
republic. Their right also to create new offices began with the institution of
the consulship, and was frequently exercised during the period treated in
this chapter. In the age which begins with the Valerian-Horatian legislation
we find the people regulating by law the qualifications and conduct of
candidates as well as the powers and functions of the magistrates
themselves. They had the same right to deal with the organization and
competence of the assemblies. From 358 to 287 they rapidly extended their

legislative power, by precedent rather than by statute, over the whole field
of the constitution and over the administration in all its departments; they
ventured even to regulate the senate and to interfere with the imperium.
Controlled originally by the senate, in the end they won their freedom from
that body, whereas the initiative in every act always remained with the
presiding magistrate. Meantime they had acquired supreme judicial power.
In constitutional theory they were at last sovereign. The senate and the
magistrates, so this theory asserted, still retained large administrative
powers for the sole reason that the assemblies, unable to manage the current
details of public business, were content with occasional participation and
regulation. Most of these gains had been made by the tribes under the
presidency of tribunes or of patrician magistrates, usually praetors. In
legislation the comitia tributa had rendered the centuriate assembly
dispensable excepting in declarations of offensive war and in the
confirmation of censorial elections. The question whether the people in
their centuries and tribes were to realize their sovereignty in actual public
life was left to the following period.

The literature on this subject is included in the bibliography for the preceding chapter.

CHAPTER XIV
THE JUDICIAL FUNCTIONS OF THE COMITIA TRIBUTA
From 287 to the End of the Republic

I. Tribunician Jurisdiction

Whereas the sources assume that the tribunes of the plebs as early at least
as the decemviral legislation had cognizance of both finable and capital
cases,[1925] an examination of the recorded trials leads to the conclusion that
they made little use of this power till the period between the legislation of
Publilius Philo (339) and that of Hortensius (287).[1926] Whether their
activity after 339 was due to the Publilian enactment of that year[1927] or
merely to the gradual evolution of popular rights cannot be determined.
However that may be, it was not till after the Hortensian legislation that we
find the tribunician jurisdiction at its highest point of development and free
from every restriction.[1928]
The capital actions brought by the tribunes before the centuries in the
period from Hortensius to the end of the republic have already been
reviewed.[1929] We have now to consider the finable cases brought before
the comitia tributa in the same period. It is characteristic of the era
immediately following the Hortensian legislation, 287-232, described in the
following chapter as politically stagnant,[1930] that only one tribunician
prosecution is mentioned, and that against the consuls of 249 for contempt
of the auspices. Appius Claudius Pulcher, one of the consuls, was fined a
hundred and twenty thousand asses, after the action had been transferred
from the centuries to the tribes in the way described in an earlier chapter.
[1931]

In accord with the spirit of the Flaminian era, 232-201, on the other hand,
is the prosecution of the retired consuls, M. Livius Salinator and L.
Aemilius Paulus, on the ground that they had unjustly distributed the booty
gained in war. Technically the charge seems to have been peculatus;[1932] it
was brought before the tribes in 218, doubtless by tribunes of the plebs.
Aemilius narrowly escaped condemnation; Livius was fined. The popular

feeling against them was extremely bitter.[1933] In 214 M. Atilius Regulus
and P. Furius Philus, censors, degraded to the condition of aerarius[1934] L.
Caecilius Metellus,[1935] who after the battle of Cannae had tried to
persuade the knights to abandon Italy.[1936] He was elected tribune of the
plebs for the following year, and made use of his office in an attempt to
prosecute the censors before the close of their administration. His purpose
was thwarted, however, by the intercession of the remaining nine tribunes,
[1937]
who in this way saved for a time a conservative principle of the
constitution—the inviolability of the magistrate from prosecutions while in
office.[1938] The trial of Postumius the publican, beginning in a finable
action and ending as perduellio, has been treated elsewhere.[1939] In the
same period falls the trial of the tresviri nocturni for appearing too late at a
fire. They were accused by the tribunes and condemned by a vote of the
tribes.[1940]
The era of the full-grown plutocracy, 201-134, is characterized by the
great number of prosecutions of eminent persons for political objects. M.
Porcius Cato was several times brought to trial for the conduct of his
consulship, 195, with the result that the speeches delivered in his own
defence filled a volume.[1941] In 189 M’. Acilius Glabrio, then candidate for
the censorship, was accused of peculatus of booty by two tribunes in a
finable action of a hundred thousand asses. The crime was alleged to have
been committed in the preceding year, when as proconsul the accused
gained over the Aetolians and Antiochus a victory by which he won the
right to a triumph.[1942] Cato, formerly his military tribune and now a
competitor for the censorship, appearing as a witness, delivered at least four
speeches against him. These proceedings forced Acilius to drop the
candidacy, whereupon the accusation was withdrawn.[1943] The attack upon
this man is to be regarded as a manoeuvre of Cato and his supporters
against his political adversaries, the Scipios, who numbered the accused
among their friends. In 185 Cato was ready for a direct assault. In that year
two of his supporters, both named Q. Petillius, tribunes of the plebs, made
in the senate at his instance a demand that L. Scipio Asiagenus[1944] should
render an account of the three thousand talents paid him as war indemnity
by Antiochus among the conditions of peace. His brother Publius, knowing
well that the blow was in reality aimed at himself, resolved to measure his

full strength with that of his adversaries. When accordingly the record of
the transaction was produced, Publius, complaining that an account of three
thousand talents should be demanded of a man who had brought fifteen
thousand into the treasury from booty, tore the document in pieces.[1945] In
this proceeding he kept strictly within his legal rights.[1946] Nothing further
seems to have been accomplished for the present;[1947] but M. Naevius,
tribune of the plebs, after entering office December 10, 185, brought against
Publius Scipio a prosecution, not for peculatus, but for official misconduct.
The specific charge was that in return for the restoration of his son from
captivity he, as legatus of his brother, had granted too favorable terms of
peace to Antiochus. In the first contio the accused recited his services to the
state; in the second, which happened to fall on the anniversary of his victory
over Hannibal, he invited the people there assembled to go with him to the
Capitoline temple to give thanks to Jupiter, Juno, Minerva, and the gods
who kept the place, for having endowed him with the will and the ability to
achieve that and other similar deeds in behalf of the commonwealth.[1948]
Naturally the dissolution of the assembly vexed the tribunes. Before the day
came for the third contio he withdrew from Rome. His brother tried to
excuse his absence on the plea of sickness, and Ti. Sempronius Gracchus,
tribune of the plebs, prevented his colleagues from causing further
annoyance to the great man. The general circumstances indicate that the
trial was to take place before the tribes, and that the penalty in case of
conviction was accordingly to be a fine. His brother was still in danger.
Early in 184 C. Minucius Augurinus brought a finable action[1949] against
Lucius concerning the money received from Antiochus.[1950] He was
condemned by the tribes, whereupon the prosecutor demanded surety
(praedes) for the payment of the fine. But when Scipio failed to comply, the
tribune attempted to imprison him. Returning suddenly to Rome, Publius
appealed to the tribunes in behalf of his brother. Whereas eight members of
the college sustained the prosecutor, one of them, Ti. Gracchus, prevented
the imprisonment and consequently the collection of the fine.[1951] But the
total result of the proceedings was the overthrow of the Scipios, and the
conqueror of Hannibal retired heart-broken to his country estate.[1952]
In the same year, 184, M. Porcius Cato, at that time censor, was
prosecuted for official misconduct by tribunes in a finable action for two
talents, but was in all probability acquitted.[1953] In this period the tribes

must have been unusually active in a judicial capacity,[1954] as Cato was
himself prosecuted forty-four times, often doubtless before the comitia
tributa, but was always given a favorable verdict.[1955]
C. Lucretius, praetor in 171, was accused in the senate by Chalcidian
ambassadors of merciless cruelties and robberies perpetrated by him on
their community. Thereupon two tribunes of the plebs, M’. Juventius Thalna
and Cn. Aufidius, prosecuted him before the people, technically on a charge
of furtum and iniuria. He was condemned by all the tribes to a fine of a
million asses.[1956] But after 149 most cases of misgovernment in the
provinces came before the quaestio repetundarum instituted in that year.
[1957]
There were occasional prosecutions for beginning war without
authorization.[1958] Toward the end of the pre-Gracchan oligarchy C.
Laelius Sapiens, the friend of Scipio Aemilianus, seems to have been
brought to trial for malversation in his consulship of the year 140, but was
probably acquitted.[1959] A peculiar case, yet characteristic of the time, was
that against Cn. Tremellius, praetor in 160, for having “contended
injuriously” with the supreme pontiff. It is stated merely that he was fined.
If the action came before the people, it must have been brought by a
tribune, as the pontiff’s jurisdiction was restricted, so far as is known, to the
sacerdotes under his supervision. Whatever may have been the procedure,
the effect was to place the religious official above the magistrate[1960]—a
policy which could be expected of the generation that adopted the Aelian
and Fufian laws.[1961]
Several prosecutions in the era extending from the Gracchi to Sulla
partake of the revolutionary nature of the time. The inconsistency in the
position of Ti. Gracchus, who depended on the sanctity of the tribunate
while technically violating it in the person of his colleague Octavius, is
illustrated by his attack on T. Annius Luscus. The latter, a man of consular
rank, challenged Tiberius in the senate to answer definitely whether or not
he had branded with infamy a brother tribune whom the law declared sacred
and inviolable. The senators applauded the challenge; but Tiberius, hurrying
from the Curia, convoked the plebs, and ordered Annius to come forward
and defend himself against the charge of violating by his words the
tribunician sanctity. Before the proceedings could begin, Annius by
permission asked his accuser: “If you intend to deprive me of my rank and

disgrace me, and I appeal to a colleague of yours, and he comes to my
support, and you thereupon lose your temper, will you deprive him of his
office?” Plutarch, who tells this story, alleges further that Tiberius, not
knowing what to reply, dismissed the assembly and withdrew his
accusation.[1962] But the fact that Annius made a speech against
Tiberius[1963] indicates that the proceedings went farther. Evidently the
accused in some way escaped condemnation. The same political
significance attaches to the tribunician capital prosecutions of the time,
mentioned in an earlier chapter.[1964] No more actions, however, are known
to have been brought by the tribunes before the tribes till 103,[1965] when
Cn. Domitius Ahenobarbus, a popular tribune of the plebs, author of the
famous statute concerning the election of sacerdotes,[1966] prosecuted M.
Junius Silanus for misconduct as consul in 109. The charge was that he had
begun war on the Cimbri without an order of the people. Notwithstanding
the stigma of defeat borne by the accused, he was acquitted by thirty-three
of the thirty-five tribes.[1967] In the same year Domitius prosecuted M.
Aemilius Scaurus for having as consul neglected the sacra of the di Penates
at Lavinium. The accused was acquitted by the votes of thirty-two tribes.
[1968]
These prosecutions, together with the plebiscite just mentioned,
excited against Domitius an antipathy among the optimates which reveals
itself in the sources but which his character hardly deserved.[1969]
Another popular tribune, C. Appuleius Decianus, 98, brought against P.
Furius the accusation that in the preceding year the latter as tribune of the
plebs had betrayed the people’s cause. Acquitted of that charge, he was
accused later in the year by C. Canuleius, another tribune, on the ground
that he had impeded the return of Metellus.[1970] In one of the contiones for
the trial of this case the citizens would not listen to the defence of the
accused but tore him in pieces. In the same year Appuleius prosecuted L.
Valerius Flaccus, curule aedile, on what charge is unknown. His own
condemnation to exile, more probably by the centuries than by a quaestio,
on the ground that in his accusation of Furius he lamented the death of
Appuleius Saturninus, his gentilis, is mentioned in an earlier chapter.[1971]
Sulla’s completion of the system of standing courts and his restriction of
the tribunician function of prosecution[1972] substantially withdrew all
judicial power from the tribal assembly under the presidency of tribunes.

The overthrow of the Cornelian constitutional arrangements left the
standing courts with jurisdiction unimpaired. Though constitutionally the
tribunes by this overthrow regained their right to prosecute, they exercised
it rarely and feebly during the remainder of the republic. C. Memmius,
tribune of the plebs in 66, brought M. Terentius Varro Lucullus to trial for
what he had done long before in his quaestorship at the dictation of Sulla.
As the motive was evidently personal, the accused was acquitted.[1973]
Early in 58 L. Antistius, tribune of the plebs, in the interest of the optimates
threatened to prosecute C. Julius Caesar, who had just retired from his
consulship and was on the point of setting out for his provinces. Caesar
appealed to the other tribunes, who suspended the prosecution on the
ground that the accused was to be necessarily absent in the service of the
state.[1974] In the year 44 C. Epidius Marullus and L. Caesetius Flavius,
tribunes, instituted proceedings against the man who took the lead in
acclaiming Caesar king as he was returning from Alba. The evident
displeasure of Caesar at the accusation caused its withdrawal.[1975] In
incomplete trials, like those last mentioned, it is seldom possible to
determine whether they were to come before the centuries or the tribes.[1976]

II. Aedilician Jurisdiction

Before the Hortensian legislation the curule and plebeian aediles alike
had cognizance of usury, stuprum, and violation of the law concerning the
limitation of occupation and pasturage of the public lands.[1977] In the
period now under consideration, beginning in 287, they continued to
exercise the same function besides taking upon themselves some new cases.
Aedilician actions for violation of the pasturage clause of the Licinian-
Sextian statute took place in 240,[1978] 196,[1979] and 193.[1980] Closely
related is the fining of usurers in 192,[1981] and of grain dealers for
cornering the market in 189.[1982] In 157 C. Furius Chresimus was
prosecuted by a curule aedile for injuring the crops of others by magic, and
the case came before the tribes in the Forum. By bringing his farm tools
into the assembly and calling them his instruments of magic he induced the
citizens to vote his acquittal.[1983]

There are several known cases of criminal lust which fell within the
aedilician cognizance. In 227 C. Scantinus Capitolinus during his term of
office as tribune or aedile of the plebs was prosecuted by M. Claudius
Marcellus, curule aedile, on a charge of attempted paederastia. He called
attention to the sanctity of his person; but as the tribunes refused to protect
him on that ground, he was condemned by the people.[1984] Most of the
known cases of this general character were against women. Several
matrons, accused of stuprum by the plebeian aediles of 213 and fined by the
comitia tributa, retired into exile.[1985] About the time of the war with
Hannibal a charge of incest, based on the fact of intermarriage between
close relatives and brought doubtless by an aedile, was judged favorably to
the accused by the people.[1986] The curule aedile A. Hostilius Mancinus,
183, brought to trial before the tribal assembly Manilia, a courtesan, who,
he alleged, had thrown a stone at him in the night and had wounded him.
Manilia, appealing to the tribunes, explained that he was attempting
violently to break into her house, when she repulsed him with stones.
Thereupon the tribunes decreed that the prosecutor deserved the treatment
he had received. They interceded against his action, which accordingly had
to be dropped.[1987]
One case of perduellio under aedilician jurisdiction is recorded. In 246
Claudia, sister of that P. Claudius Pulcher who lost his fleet off Drepanum,
[1988]
was jostled by the crowd as she came from the games. She was heard
to say on this occasion that she wondered what would have happened to
herself, had her brother not caused the death of so many of the citizens, and
to wish that he were again living, to lose another fleet together with the
crowd that troubled her. For these words she was brought to trial by the
aediles of the plebs, and the people imposed on her a fine of 25,000 heavy
asses.[1989] The case is described as a iudicium maiestatis apud populum
Romanum.[1990]
The jurisdiction of the aediles as well as that of the tribunes suffered
from the growth of standing courts.[1991] The fact that the power remained,
provided the holder was in a position to use it, is proved by the occasional
recurrence of a prosecution in the lifetime of Cicero. First may be
mentioned the proceedings instituted by C. Flavius Fimbria, aedile in 86,
against Q. Scaevola. Evidently the case did not come to vote.[1992]