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.