BOOK VI. Decay of the centuriate comitia. from carrying it into practice; that his successor ruled independently of it; and that on his expulsion the Romans drew it forth from the public archive, and applied it to their wants in the emergency of a revolution. The whole story is fantastic and absurd. The scheme of the centuriate assemblies, without any doubt, grew slowly, gradually, and naturally out of the conditions and necessities of the time; and as it had not been called into existence by one act of legislation, so it was not reformed by another single act of legislation, but was kept in working order and repair, and was improved and enlarged by the wisdom of generation after generation. Simultaneously with the gradual division and weakening of the power of the chief magistrates, and with the establishment of the tribuneship and the comitia tributa, the centuriate eomitia lost ground. The greater part of the judicial power immediately passed over to the tribes. Although the right of inflicting capital punishment remained with the centuries, the so-called comitiatus maximus, yet the tribes judged all minor offences and exercised an effective control chiefly by fines, the infliction of capital punishment being from the first exceedingly With the establishment of the lower magistrates, from the ædiles downwards, the right of election also for these offices was vested in the tribes. All that now remained unimpaired in the hands of the centuries was the election of the consuls, censors and prætors, and their supreme right of deciding questions of war and peace.1 rare. 1 With regard to treaties of peace, it has been maintained by Rubino (Untersuchungen über röm. Verfassung, 1839, p. 258 ff) that the centuriate comitia never possessed the right of giving or withholding their sanction; that in the earlier periods down to the Samnite wars the magistrates and the senate were alone competent to conclude treaties of peace, though in declarations of war the people in their assemblies of centuries had to be consulted. It is true that in the earlier ages the concurrence of the centuries to such negotiation is not mentioned, and that the statement of Dionysius, iv. 20, who asserts their constitutional right, is not of great weight; but we must bear in mind that the narrative of the earlier wars is very short, that the consent of the people to the conclusion of peace, which released them from further services and burdens, was mostly a matter of course, and needed not to be specially mentioned, so that no inference can be drawn from the silence of the I. the exten dominion. If this right appears to be less prominent in later CHAP. times than at first, this circumstance is explained by the extension of the Roman dominion. As long as the wars Effects of that had to be waged threatened the immediate vicinity sion of of the town, and extended no further than Latium, Roman Campania, Samnium, or Etruria, the people fully comprehended and took a lively interest in the policy pursued by the senate and the magistrates. But when the theatre of war was removed to countries beyond the sea, the questions which had to be decided were no longer within the reach of the popular comprehension, and the approval of the actions of the government by the comitia was so much a matter of course that only one case is mentioned of a declaration of war being negatived; but even this isolated opposition was soon overcome the popular resolution was cancelled and the policy of the senate obtained the approbation of the people. In most cases the annalists no longer thought it worth while to mention the popular approval of the foreign policy of the senate, and nothing proves more clearly the complete establishment of the rule of the nobility and the entire absence of opposition on the part of the people than the circumstance that it was possible, nay, apparently easy, for the senate and the nobility to carry on, year after year, the bloody wars in Spain and Northern Italy, which were so oppressive for the people and lucrative only for those who governed. No opposition was offered, and scarcely an occasional murmur of discontent was heard among the ranks of the men in the centuriate assemblies who formally decreed the wars, and who in reality were obliged to wage those wars and pay for them with their blood. meagre annals. It is therefore, after all, probable that the centuries, as they had to be consulted before war was declared, had also the corresponding right of approving the conclusion of peace. See vol. iii. At the beginning of the second Macedonian war, in 200 B.C. p. 18. Liv. xxxi. 6, 3: Rogatio de bello Macedonico primis comitiis ab omnibus ferme centuriis antiquata est. After the consul had made a speech to explain and recommend the senatorial policy, the people were called upon to vote again, and, as Livy says, ch. 8, 1: In suffragium missi, uti rogarat, bellum iusserunt. BOOK VI. Legislative powers of the comitia. Increasing import comitia of tribes. With regard to legislation, the comitia centuriata lost even more of their ancient authority than they did in their influence upon foreign affairs. After the peace between patricians and plebeians the legislation completely passed over into the hands of the comitia tributa. After the Hortensian law (287 B.C.), there is no indication of laws having been passed in the centuries. In the fully-developed republican constitution we can therefore regard the comitia centuriata as being limited on the whole to the election of the highest magistrates, to the formal decision in questions of peace and war, and to the supreme penal jurisdiction. Whilst the public action of the comitia centuriata was ance of the shrinking within narrower limits, the assemblies of the tribes gained more and more ground. From the moment the tribuneship was established the rights of the plebeians steadily increased, and with them grew the competency of their comitia. On the foundation of the leges sacratæ the omnipotence of the tribunes of the people and of the decrees of the plebeian tribes was gradually built up. The right of making laws binding on the whole people was formally granted to the plebs by the Publilian law in the year 471 B.C., and was repeatedly confirmed after the second and after the last secession by the laws of 449 and 287 B.C. With the last of these laws, the Hortensian law, the long struggle of the two classes came to an end, and the republic reached the highest development, which carried it victoriously through all the wars for the dominion of the world. But even before this last formal 1 I have endeavoured to show (Rhein. Museum, 1873, pp. 353-379) that the three laws which conferred on the tribes the full right of legislation for the Roman people-the Lex Valeria Horatia of 449 B.C., the Lex Publilia of 339 B.C., and the Lex Hortensia of 287 B.C.—were substantially identical, and that the Lex Publilia of 471 B.C. ought to be considered as the foundation or original charter of all these laws which established the democratic constitution. I have, moreover, suggested that this Publilian law of 471 B.c. ought to be substituted for the Publilian law of 339 B.C.; that the latter had nothing to do with the confirmation or extension of the right of the tribes; that it ought to be struck out of the list of the three laws affecting the legislative rights of the plebeians; and that it was only inserted in this list by a mistake, being confounded with the Publilian law of 471 B.C. acknowledgment of their unlimited competency, the comitia tributa had assumed and practically exercised the right of legislation and of determining the actions of the executive in a manner corresponding to the admitted sovereign rights of the people. The constitutional development of the republic is principally the work of the comitia tributa. By degrees the comitia centuriata now retire from the field of legislation, which remains in undisputed possession of the younger and more democratic assembly. Public law and private law were both elaborated by a long line of plebiscites. Thus the prerogatives of the magistrates were more accurately defined by the Porcian laws, which restricted their power of inflicting corporal punishment; the age requisite for filling the various magistracies in succession was fixed by the lex annalis of the tribune L. Villius (180 B.C.); the number of quæstors was raised to eight (267 B.C.); re-election of the same person to the censorship was prohibited (265 в.C.); a prætor peregrinus was appointed (probably 242 B.C.); two prætors were appointed for the provinces (227 B.C.); the number of prætors was increased to six (198 B.C.); the senators were forbidden to engage in commercial transactions (219 B.C.). All these plebiscites refer to public law. Of the large number of enactments passed by the assembly of tribes in the department of private law we will mention only the Voconian law, on the right of women to inherit property (169 B.C.), and the Sempronian law (193 B.C.), on debts contracted by allies. The great change effected in the mode of criminal prosecutions through the establishment of permanent law-courts (the quæstiones perpetuæ) is also attributable to the comitia tributa, which in the year 149 B.C. established the first law-court of this kind through the Lex Calpurnia; and thus it is evident beyond dispute that the comitia tributa were throughout the whole period acknowledged as that assembly by which the Roman people exercised their sovereign legislative rights. With little success, also, though with never daunted СНАР. BOOK VI. Executive power of of tribes. zeal, the popular legislators endeavoured to improve public morality by a series of luxury laws-for instance, the Lex Oppia (215 B.C.), which will be discussed lower down. The tribes made dispositions affecting the state property, as we see by a law (the Plebiscitum Lucretium, 172 B.C.) regarding the farming of the revenues of Campania. Nay, even matters of religion and public worship were settled by plebiscites; thus, for instance, in the year 208 B.C. a decree of the tribes introduced the Apollinarian games in Rome. Apart from this extensive legislative power, the comithe comitia tia of tribes had the right to decide in all questions of administration and government. In conformity with the spirit of the constitution, the people entrusted all matters of government and administration to the magistrates elected by them, who were assisted by the senate as permanent councillors. It was taken for granted that the magistrates would carry out the intention of the people who had appointed them. It was therefore advisable, whenever there was any doubt concerning the popular inclination, to consult the will of the people in important questions, and thus it happened that the Roman tribes were called upon to take an actual part in the government in a manner which almost threatened the permanence of the aristocratic rule. Conduct of foreign policy. 1 Of all the more important political decisions, the only one which remained uncurtailed in the hands of the comitia centuriata was the declaration of war.2 On the The cases are very numerous in which administrative questions were decided by the people (Lange, Röm. Alterth. ii. p. 166, 629 ff.). An instance which occurred in the year 169 B C. is especially instructive. In that year Rutilius, a tribune of the people, attacked the censors for their proceedings in managing the public contracts and the collection of the revenue. He declared he would ask the people to annul the censorian contracts. Liv. xliii. 16, 6: Rogatio sub unius tribuni nomine promulgatur, quæ publica vectigalia aut ultro tributa C. Claudius et Ti. Sempronius locassent, ea rata locatio ne esset; ab integro locarentur. The dispute led to a formal impeachment of the censors, which was a violent and illegal stretch of the tribunician power, and caused a great constitutional conflict. But the right of the people to cancel an administrative measure of the censors was not questioned by anyone. 2 See above, p. 20. |