CHAPTER XVIII

THE COMPOSITION AND PRESERVATION OF STATUTES, COMITIAL PROCEDURE, AND

COMITIAL DAYS

I. _The Composition and Preservation of Statutes_

Laws were drawn up in technically exact language. If the proposer of a

rogation lacked the necessary knowledge, he sought the advice of learned

friends.[2936] The bill, as first presented to the senate and published

in the city on wooden tablets,[2937] was merely tentative; for discussion

in the senate or the expression of public opinion might suggest

changes[2938] or even induce the author to withdraw the proposal.[2939]

At the head of the law after its adoption was inserted the index and

praescriptio,[2940] of which the consular lex Quinctia de aquaeductibus,

accepted by the tribes in the year 9 B.C., offers a good example:[2941]

“T. Quinctius Crispinus consul populum iure rogavit, populusque iure

scivit in foro pro rostris aedis divi Iulii pr(idie) _K_ Iulias.

Tribus Sergia principium fuit, pro tribu Sex.... L. f. Virro _primus

scivit_.”[2942]

It contains the name of the rogator,[2943] his office, the body of

citizens, whether populus or plebs, to which the proposal is offered,

the place of the assembly,[2944] the date, the century (praerogativa) or

the tribe or curia (principium) which voted first, and the name of the

citizen who has been granted the honor of casting the first vote for his

praerogativa or principium.[2945] If the senate has given its sanction,

that fact is indicated by the insertion of the phrase “de s(enatus)

s(ententia).”[2946] In case the proposal is by a tribune of the plebs, it

is strictly a plebi scitum; but that its equivalence to a lex may be made

clear, it is described as a lex plebeive scitum.[2947]

The body of the law is divided into chapters separated by spaces,

sometimes numbered, and occasionally bearing individual titles.[2948]

Last comes the sanction,[2949] which provides for the enforcement. Some

laws, however,—termed leges imperfectae—lack this part.[2950] Usually the

sanction prescribes the form of procedure according to which offenders

are to be tried.[2951]

If the author of the new proposal has no desire to disturb any existing

law, this fact is indicated by the insertion of the formula E(x) H(ac)

L(ege) N(ihilum) R(ogatur).[2952] As a protection from the operation of

earlier laws left in whole or in part unrepealed by the new statute, the

latter is provided with a declaration that no attempt is hereby made to

legalize anything illegal.[2953] By an analogous statement unconscious

trespassing upon the rights of religion is rendered harmless.[2954] In

accordance with a law of the Twelve Tables[2955] provision is further

made against the consequences of conflict with other laws by the

declaration that if any one in carrying out this law shall trespass

against other statutes or senatus consulta, his act shall render him in

no way liable to such earlier laws or decrees.[2956] A provision may

also be added against illegal alteration or repeal.[2957] Sometimes the

proposer includes an article for compelling senators and magistrates

to uphold his law, should it be enacted,[2958] or for otherwise

overcoming opposition to its enforcement,[2959] or for making repeal

difficult.[2960] It becomes binding from the moment when the author

announces its adoption by the comitia, excepting in case time has to be

given the senators and magistrates for swearing to it.[2961] The law is

then engraved on a bronze tablet,[2962] the original copy of which is

kept by the quaestors in the aerarium.[2963] Other copies are posted in

public places where all can read it.[2964]

II. _Comitial Procedure_

The tribal assembly convened under the presidency of a tribune or aedile

of the plebs,[2965] in which case the gathering was technically the

plebs;[2966] or as the populus under a patrician magistrate—dictator,

consul, praetor,[2967] curule aedile,[2968] pontifex maximus,[2969]

or any extraordinary magistrate who possessed the ius agendi cum

populo.[2970] It met indifferently within or without the pomerium,

usually on the Capitoline hill in the precinct of the temple of

Jupiter,[2971] in the Forum and comitium,[2972] the Campus Martius,[2973]

and within the latter in the Flaminian meadow or Flaminian Circus.[2974]

Meetings called by tribunes had to convene within the first milestone,

which bounded the authority of these officials,[2975] whereas we hear

of a tribal assembly called by a consul in the military camp at Sutrium

(357).[2976] The contio, described in an earlier chapter, was transformed

into comitia by order of the presiding magistrate directing the people

to take their places in their respective tribes.[2977] Before this

command was given a tribe was drawn by lot to receive the Latins who

were at Rome.[2978] A second tribe was then drawn as a principium

to cast the first vote.[2979] The bringing of the urn[2980] and the

sortition were the last acts of the contio. To facilitate the division

ropes were stretched across the Forum or other assembly-place, forming

as many compartments as there were tribes.[2981] In time a permanent

enclosure, termed Saepta,[2982] was built for the comitia.[2983] If the

magistrate found that an entire tribe was absent, he assigned to it for

the occasion a few citizens from some other, in order that in theory all

thirty-five tribes—the universus populus Romanus—might be present.[2984]

After the tribes were assembled in their comitia as here described,

the principium was called to vote. This point terminated the right

of intercession[2985] and of obnuntiating an evil omen discovered in

watching the sky.[2986] When the suffrage of the principium was given and

announced,[2987] all the remaining tribes voted simultaneously.[2988] In

earlier time a rogator stood at the exit of each saeptum, and received

the oral votes of the citizens as they passed out one by one.[2989] After

the introduction of the ballot,[2990] the state provided little tablets

inscribed with abbreviations for “ut rogas” and “antiquo” for affirmative

and negative votes respectively,[2991] and for elections blank tablets

on which the names of the candidates could be written.[2992] They were

deposited in boxes (cistae) placed at the exits above mentioned,[2993]

under the charge of rogatores, who, having lost their original function,

were now often, and more aptly, called custodes.[2994] They counted

(diribitio) the ballots, and reported (renuntiatio) the results to the

president.[2995] The latter had a right to announce to the public the

returns from the tribes in whatever order he pleased, but he usually

preferred to determine the succession by lot.[2996] In the election of

any college of magistrates each citizen voted for as many candidates as

there were places to be filled, and the announcements for each continued

till a majority was reached in his favor. Precedence in honor within the

college depended upon priority of election.[2997] The declaration of the

vote by the praeco at the command of the president closed the comitial

act.[2998] If for any reason the presiding magistrate discontinued

the announcement before a majority was reached, the vote was without

effect.[2999] The session of any assembly had to begin and end between

sunrise and sunset.[3000]

The comitia curiata, presided over by the king, the interrex, and

possibly by the tribunus celerum,[3001] and in the republican period

by the dictator,[3002] consul,[3003] interrex,[3004] praetor,[3005]

pontifex maximus,[3006] or rex sacrorum,[3007] met always within the

pomerium,[3008] usually in the comitium,[3009] or for religious purposes

in front of the Curia Calabra on the Capitoline hill.[3010] It was

called together by a curiate lictor[3011] at the sound of the lituus or

tuba.[3012] The procedure, which in general was like that of the tribal

assembly, and which has been touched upon in the chapters on the comitia

calata and curiata, does not require further consideration here.[3013]

The comitia centuriata could be summoned for voting by no magistrates

in their own name and under their own auspices excepting those who were

vested with the imperium[3014]—the dictator, consul, interrex for holding

elections, the praetor for judicial business,[3015] and all extraordinary

magistrates with consular power. The duoviri perduellioni iudicandae, the

quaestors, and the tribunes of the plebs could summon this assembly for

judicial business under the auspices only of a magistrate cum imperio, as

the consul or more especially the praetor.[3016] It always met outside

the pomerium, usually in the Campus Martius,[3017] at the call of an

accensus, who sounded the trumpet (classicum) at daybreak along the city

wall.[3018] During the session the citizens in the assembly could see a

flag waving above the Janiculum to signify that this post was occupied by

a garrison as a protection for the city while they were engaged outside

in a public duty.[3019] As in the case of the tribal assembly, the contio

was transformed into comitia by an order of the president commanding

the citizens to separate into their respective voting groups.[3020] The

place of meeting, termed ovile[3021] (sheepfold), was divided by ropes

or wooden fences into as many compartments as there were centuries in

the largest voting division—probably eighty-seven.[3022] An elevated

passage (pons) formed the exit of each compartment.[3023] The members of

a century, while passing out one by one, gave their votes to the rogator,

in the same way as the tribesmen in the comitia tributa. After the ballot

was introduced, it was used in all assemblies alike.[3024] The order

of voting before and after the reform has been sufficiently explained

in an earlier chapter.[3025] In general the principles governing the

announcement of votes, interruptions, and adjournments were the same

for all three assemblies. The length of the assemblies must have varied

according to the form of organization, the number of voters present, and

various other circumstances. In the time of Caesar the process in the

comitia centuriata, on an occasion in which there was no delay, lasted

five hours.[3026] We should therefore assume at least an hour for the

voting of the tribes.[3027]

III. _Comitial Days_

The people could meet for voting on comitial days only[3028]—marked

=C= in the calendar.[3029] They excluded the dies nefasti—marked =N=,

=NP=, or =NF=—on which religion forbade that public business should be

done.[3030] They excluded further the two days marked Q(uando) R(ex)

C(omitiavit) F(as),[3031] the one day marked Q(uando) ST(ercus) D(eletum)

F(as)[3032]—because on these days it was impossible to open the assembly

in the morning as usage prescribed—and the eight days marked =EN=,[3033]

the morning and evening of which were alone nefasti, the intervening

part being free for business. Equally distinct from the comitial days

were the dies fasti non comitiales, marked =F=, and in this volume

termed simply fasti.[3034] They were reserved for judicial business.

The pre-Julian year contained a hundred and eight nefasti[3035] and

forty-five fasti, leaving a hundred and ninety-one comitial days.[3036]

The ten days added by Caesar are all marked =F=.[3037] It is to be

noticed, however, that those days marked =C= on which fell in any year

extraordinary or changeable festivals were thereby rendered unfit for

comitia.[3038]

It seems probable that in early time market-days (nundinae) were

not wholly devoted to trade[3039] and to the settlement of cases

at law,[3040] but that they could be used equally well for voting

assemblies,[3041] till the Hortensian statute of 287 declared those

marked =F= and =C= to be fasti, reserving them thus for judicial business

and prohibiting from them voting assemblies of every kind.[3042] The

general tendency during the republic was to restrict the power of the

people by lessening the number of days on which they could meet for

passing resolutions.[3043]

Lange, _Römische Altertümer_, ii. 649-54; Madvig, _Verfass, und

Verw. d. röm. Staates_, i. 246-73; Herzog, _Röm. Staatsverf._

i. 1105-13; Karlowa, _Röm. Rechtsgesch._ i. 388-448; Mommsen,

_Röm. Staatsr._ iii. 314 f., 396-419; in _CIL._ i. p. 203

ff., 290 ff.; Liebenam, in Pauly-Wissowa, _Real-Encycl._ iv.

482-4, 687-93, 705-8; Humbert, in Daremberg et Saglio, _Dict._

i. 1377, 1379 f.; Cuq, ibid. iii. 1122 ff.; Hübner, A., _De

senatus populique Romani actis_; Ritschl, F., _In leges

Viselliam Antoniam Corneliam observationes epigraphicae_, in

_Opuscula Philol._ iv. 427-45; Egbert, _Latin Inscriptions_,

348-50; Cagnat, _Épigraphie Lat._ 265-7; Marquardt, _Röm.

Staatsv._ iii. 289 ff.; Wissowa, _Religion und Kultus der

Römer_, 368 ff.; _Comitiales dies_, in Pauly-Wissowa,

_Real-Encycl._ iv. 716; Fowler, _Roman Festivals_, 8 ff.

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