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.