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THE ROMAN ASSEMBLIES 
 
THE MACMILLAN COMPANY 
 
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 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. 
 
 Nefa gotfe 
 
 THE MACMILLAN COMPANY 
 
 1909 
 
 All rights reserved 
 
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 Copyright, 1909, 
 By THE MACMILLAN COMPANY. 
 
 Set up and electrotyped. Published September, 1909. 
 
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MY WIFE 
 
 Ov fiiv yap rov ye Kpiicrcrov Kal apaov, 
 H off 6/io<j>poviovT€ vo/qfuUTiv oTkov Zyyfrov 
 Kvqp rj8k yvvy • iroW aAyea Bvo-fxtvcecrcri, 
 Xa.pfj.aTa 8 tvixeven](Tt ' piAiora 8c T IkXvov avrot. 
 
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 prac- 
 tically all the modern authorities have been utilized. A deter- 
 mination 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 conserva- 
 tive 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 encourage- 
 ment 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 experi- 
 ence. Professor George N. Olcott has advised me on various 
 numismatic matters, and I am indebted to Dr. John L. Gerig 
 
viii PREFACE 
 
 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 knowl- 
 edge, 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 
 PART I 
 
 PAGES 
 
 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 1 19-138 
 
 CHAPTER VII 
 The Contio 139-15 1 
 
 CHAPTER VIII 
 The Calata Comitia 152-167 
 
 ix 
 
x CONTENTS 
 
 CHAPTER IX 
 
 PAGES 
 
 ThE COMITIA CURIATA I<58-200 
 
 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 Re- 
 public 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 
 
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 plenus, plebes, trXfjdo'i, ttoXus, 7rifnrXrj/j.i, 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. 8 Fundamentally personal, it included all those indi- 
 viduals, 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 
 
 1 Cf. Mommsen, Rom. Forsch. i. 168 and n. I. Schrader, Reallex. 920 f., accepts 
 this explanation as most probable, and connecting it with Skt. cakra-, interprets it as 
 referring to a wheel formation of the army. But Vanicek, Griech.-lat. etym. 
 Worterb. 1085 f., connects populari with spol-iu-m. 
 
 2 Curtius, Griech. Etym. 260, English, 344; Corssen, Ausspr. i. 368, 422; Vanicek, 
 Etym. Worterb. d. lat. Spr. 90; Grieck.-lat. etym. Worterb. 506; Walde, Lai. etym. 
 Worterb. 480 f.; cf. Schrader, ibid.; Genz, Patr. Rom, 51 f. 
 
 8 This interpretation would explain magister populi and populari. Plebs, on the 
 other hand, denoted the multitude as distinguished from the leaders; hence it dif- 
 fered from populus, notwithstanding Herzog, Rom. Staatsverf. i. 98, n. 2. 
 
 4 Cf. Mommsen, Rom. Staatsr. iii. 3. 6 Livy xxi. 34. I. 
 
 B I 
 
2 THE ROMAN ASSEMBLIES 
 
 on the general participation in public benefits," 1 is doubtless 
 too abstract for the beginnings of Rome. Citizenship — mem- 
 bership in the populus — with all that it involved is elaborately 
 defined by the Roman jurists; 2 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 as- 
 sembly. 3 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 rela- 
 tion with the founding of the city.* For some unknown rea- 
 son they were led to connect the myth of Titus Tatius, the 
 eponymous hero of the Tities, 5 with the Quirinal, 6 and with the 
 Sabines, 7 who were generally supposed to have occupied that 
 
 1 Cic. Rep. i. 25. 39; Livy i. 8. I ; Isid. Etym. ix. 6. 5. 
 
 2 Cf. Madvig, Rom. Staat. i. 34 ft.; Schiller, Rom. Alt. 612 ff. 
 
 8 " Arma sumere, sacris adesse, concilium inire"; Tac. Germ. 6. 6; 13. I. On the 
 Indo-European relation of the army to the folk, see Schrader, Rcallex. 349 f. For 
 Rome, Mommsen, Rom. Staatsr. iii. 3 f. 
 
 4 Cic. Rep. ii. 8. 14 ; Dion. Hal. ii. 7. 2 ; Plut. Rom. 14, 20; Ovid, Fast. iii. 131 ; 
 Dio Cass. Frag. 5. 8 ; Varro, Z. Z. v. 55 ; Colum. v. I. 9. 
 
 6 As Romulus was the eponymous hero of the Ramnes (or of all the Romans ?) 
 and Lucerus (Fest. ep. 1 19) of the Luceres. 
 
 6 The original seat of the hero at Rome was on the Capitoline near the site of 
 the later temple of Juno Moneta ; Plut. Rom. 20. It was closely connected, there- 
 fore, with the auguraculum on the spot ; Varro, L. Z. v. 47 ; Cic. Off. iii. 16. 66 ; 
 Fest. ep. 16. Perhaps his name has some etymological relation with titiare, "to 
 chirp as a sparrow " ; Varro, Z. Z. v. 85 (titiis avibus) ; Pais, Storia di Roma, I. i. 
 277 and n. 3 ; Forcellini, Lex. s. v. The Sodales Titii, who attended to his worship 
 (cf. Dion. Hal. ii. 52. 5 ; Tac. Ann. i. 54 ; Hist. ii. 95) were accustomed to take a 
 certain kind of auspices from birds ; Varro, ibid. His tomb was in a place called 
 Lauretum on the Aventine (Pais, ibid. 279), confused probably with Laurentum, 
 where he is said to have been killed. All these circumstances indicate that Titus 
 Tatius was an indigenous Roman, or at most a Latin hero, and that his connection 
 with the Sabines is an ill-founded, relatively late idea. The primary origin of the 
 word Titienses is Etruscan; Schulze, Lat. Eigcnnam. 218. 
 
 7 Possibly because the rites of the Titian sodales seemed to be Sabine (cf. Tac. 
 Ann. i. 54) ; hut even if they were, this circumstance would not make the Titian 
 tribe Sabine. 
 
THE POPULUS 3 
 
 hill. 1 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, 2 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, 3 neither he nor any other ancient writer identified the Tities 
 with the Sabines, whose quarter in the city was really unknown, 4 
 or the Luceres with an Etruscan settlement under Caeles 
 whether in the Vicus Tuscus 6 or on the Caelian hill. 6 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 con- 
 sisting originally of a single tribe, to which a second and after- 
 ward a third were added, or that any one of these three tribes 
 had ever been an independent community. These views are 
 modern; 7 there is no trace of them in the ancient writers. 8 
 
 1 Varro, however, placed them on the Aventine. A Sabine settlement on the 
 Quirinal has not been proved; cf. Lecrivain, in Daremberg et Saglio, Diet. ii. 1514. 
 s In Dion. Hal. ii. 47. 4; cf. 7. 2; Plut. Rom. 13. 
 8 L. L. v. 46, 55 ; Serv. in Aen. v. 560. 
 4 P. 2, n. 6, and n. I above. 
 
 6 Serv. ibid. 
 
 8 Cf. Hulsen, in Pauly-Wissowa, Real-Encyel. iii. 1273. 
 
 7 Proposed by Niebuhr, Rom. Gesch. i. 311 ff., English, i. 153 ff. In his opinion 
 the three tribes were of different nationalities. His view, with or without the theory 
 of national syncretism, has been accepted by many scholars, including Schwegler, 
 Rom. Gesch. i. 480 ff., 497-514; Lange, Rom. Alt. i. 82 ff.; Peter, Gesch. Rorns, 
 i. 60; Madvig, Rom. Staat. i. 97 f.; Herzog, Rom. Staatsverf. i. 23 f. (with some 
 reserve); Schiller, Rom. Alt. 621; Ihering, Geist des rbm. Rechts, i. 309, 313; 
 Genz, Pair. Rom, 89 ff.; Bernhoft, Rom. Kbnigsz. 79; Puchta, Curs. d. Inst. i. 73; 
 Soltau, Rbm. Volksversamml. 46 f. ; Kubitschek, Rom. trib. or. 4; Mommsen, Rbm. 
 Staatsr. iii. 96 (.; Willems, Sen. Rom. i. 7; Schrader, Rcallcx. 801; Nissen, Tem- 
 plum, 145 f.; Ital. Landesk. ii. 496. 
 
 ° Against the view that the three tribes were once independent communities are 
 Volquardsen, in Rhein. Mas. xxxiii. 542 ff.; Meyer, Gesch. d. Alt. ii. 510; Lecrivain, 
 in Daremberg et Saglio, Diet. ii. 1514 a; Holzapfel, in Beitr. z. alt. Gesch. i. 241, 
 249 ft.; Platner, Top. and Man. of Anc. Rome, 33. Ihne, Hist, of Rome, i. 114, 
 thinks they probably had reference only to the army. The double nature of many 
 
4 THE ROMAN ASSEMBLIES 
 
 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 pos- 
 sessed 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. 1 Under these circumstances 
 modern speculations as to their independent character and 
 diverse nationality seem absurd. The proper method of solv- 
 ing 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, 2 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. 3 Far from being con- 
 Roman institutions — a phenomenon on which scholars chiefly rely for their theory 
 of a once existent two-tribe state — may better be explained by the union of the 
 Sabines with the Romans after the institution of the three tribes; as this relatively 
 later date would at the same time explain the six-fold character of various institutions. 
 That the union took place in the beginning of the fifth century B.C. is believed by 
 Pais, Storia di Roma, I. i. 277. Or the stated increase in the number of members of 
 the vestals, augurs, pontiffs, and more particularly of senators, may be due to an 
 ancient theory, dimly hinted at in the sources, of an admission of the second and 
 third tribes successively to representation in these bodies; cf. Niebuhr, Rom. Gesch. 
 i. 320 f., English, i. 157; Bloch, Orig. d. sen. 32 ff. 
 
 1 Bormann, in Eran. Vind. 345-58, following a hint offered by Niese, Rom. 
 Gesch. (1st ed. 1886) 585, has gone so far as to deny their existence, setting them 
 down as an invention of Varro; but Holzapfel, in Beitr. *. alt. Gesch. i. 230 ff., 
 proves that Cicero and other sources did not draw from Varro their information 
 regarding the tribes. Against Bormann, see also Pais, ibid. I. i. 279, n. 1. 
 
 2 That the primitive Roman tribes were in character substantially identical with 
 the primitive Greek phylae cannot be doubted. Apparently the four Ionic phylae 
 in Attica offered no resistance to dissolution at the hands of Cleisthenes; cf. Hdt. v. 
 66; Arist. Ath. Pol. 21. (For the best treatment of the Greek phylae, see Szanto, 
 E., Ausgewahlte Abhandlungcn, 216-88, who maintains that the institution was arti- 
 ficial.) In like manner the three Roman tribes disappeared, leaving but scant traces; 
 p. 7. 
 
 8 Mantua, till late an Etruscan city, had three tribes; Serv. in Aen. x. 202. In 
 this connection it is significant that Volnius, an Etruscan poet, declared the primi- 
 tive tribal names to be Etruscan; Varro, L. L. v. 55. The information suggests the 
 possibility that some Etruscan cities had these same tribes; cf. Fest. 285. 25; 
 CIL. ix. 4204 (locality unknown). In fact these names can be ultimately traced to 
 Etruscan gentilicia; Schulze, Lat. Eigennam. 218, 581. The triplet champions of 
 
I 
 
 THE POPULUS 5 
 
 fined to Rome, the tripartite division of the community belonged 
 to many Greek and to most Italian peoples, 1 and has entered 
 largely into the organization of communities and nations the 
 world over. 2 A derivation of tribus, Umbrian trifu, accepted 
 by many scholars, connects it with the number three. 3 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 4 — and of the same three Latin (or Etruscan?) tribes 
 in several old Latin cities, could not result from chance combi- 
 
 Alba point to a division of this community into three tribes; Niebuhr, Rom. Gesch. 
 i. 386; Schwegler, Rom. Gesch. i. 502. The story that T. Tatius was killed at 
 Lavinium indicates the existence of a tomb of the hero in that place — a clear sign 
 of a tribe of Tities there; Livy i. 14. 2; Dion. Hal. ii. 52; cf. Varro, L. L. v. 152. 
 A trace of Ramnes is found at Ardea; Serv. in Aen. ix. 358. There were Ram- 
 nennii in Ostia {CIL. xiv. 1542) and Rammi in Capua; ibid. x. 3772; Schulze, Lot. 
 Eigcnnam. 218. The existence of a tribe of Luceres in Ardea is vouched for by 
 Lucerus, its eponymous hero, king of that city; Fest. ep. 1 19; Pais, Storia di Roma, 
 I. i. 279. The word in various forms occurs in certain Etruscan towns; Schulze, 
 ibid. 182. These facts make it probable that some at least of the Latin as well as 
 Etruscan cities had the same three tribes. 
 
 1 The Etruscans had twelve cities in each of their three districts; Strabo v. 4. 3; 
 Livy v. 33. Each city had three consecrated gates and three temples to Jupiter, 
 Juno, and Minerva; Serv. in A en. i. 422. The Umbrians had three hundred cities 
 in the Po valley, destroyed by the Etruscans; Pliny, N. H. iii. 14. 113. The Brut- 
 tians were organized in a confederation of twelve cities; Livy xxv. 1. 2. The Iapy- 
 gians were divided into three branches (Polyb. iii. 88. 4), each of which comprised 
 twelve smaller groups; Bloch, Orig. d. sin. 9 f.; Holzapfel, in Beitr. z. alt. Gesch. 
 i. 245 S., 252 f. The tripartite division also existed in many pagi which continued 
 to historical time; Kornemann, in Klio, v. 83. 
 
 ' These facts are too well known to need illustration; cf. Nissen, Templum, 144; 
 Bloch, Orig. d. sin. 1 ff. 
 
 * Varro, L. L. v. 55. Tribus = tri-bu-s : bu- is related to 0w- " to grow,'' Skt. 
 bhu-; tribus, corresponding to <t>v-\j, would then signify "three-branch ;" Corssen, 
 Ausspr. i. 163; Pott, Etym. Forsch. i. in, 217; ii. 441; Vanicek, Etym. Wbrterb. 
 d. lot. Sfr. 69; Griech.-lat. etym. Wbrterb. 636; Bloch, ibid. 9. Schlossman, in 
 Archiv f. lot. Lexicog. xiv (1905). 25-40, connecting tribus with tres, interprets it 
 not as a third but as an indefinite part, cf. entzweien with the meaning to divide in 
 several parts. Schrader, Real/ex. 801, is doubtful as to the etymology; cf. Walde, 
 Lat. etym. Wbrterb. 636. The connection of the word with tres is denied by Madvig, 
 Rom. Staat. i. 96; Nissen, Ital. Landesk. ii. 8, n. 5. Christ, in Sitzb. d. bayer. Aiad. 
 1906. 204, prefers to connect it with Celt *trebo- (Old Irish treb), " house," Goth, 
 thaurp, " village." Oscan trebo- also means " house." 
 
 * The existence of four Ionic tribes in all Ionic cities cannot be maintained; cf. 
 Wilamowitz-Mallendorff, in Sitzb. d. Berl. Aiad. 1906. 71. 
 
6 THE ROMAN ASSEMBLIES 
 
 nations in all these places, but point unmistakably to the sys- 
 tematic imitation of a common pattern. That pattern must be 
 ultimately sought in the pre-urban populus, eOvos, 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 satisfac- 
 torily explain the tribal organization of the city-states which 
 grew up within the areas occupied by these three folks respec- 
 tively. 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 pop- 
 ulus allowed its tribes to become independent, 1 in Latium a 
 development in that direction was prevented by the rise of 
 city-states, which completely overshadowed the preexisting or- 
 ganization. 
 
 The Italian city-state grew not from a tribe or a combination 
 of tribes, but from the pagus, 2 " canton," a district of the pre- 
 urban populus with definite consecrated boundaries, 3 usually 
 centering in an oppidum — a place of defence and refuge.* In 
 the beginning the latter enjoyed no superior right over the 
 territory in which it was situated. 5 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 
 
 1 The tribus Sapinia was the territory of the Sapinian community (Livy xxxi. 2. 
 6; xxxiii. 37. 1), just as the trifu Tarinate was the territory of the community (tuta, 
 tota, Osc. touto; Tab. Bant. 2) Tadinum; Tab. Iguv. vi. b. 54; cf. iii. 24; Buck, 
 Grammar of Oscan and Umbrian, 278 f., 298; Biicheler, Umbrica, see index, s. 
 Tref, Trefiper; Kornemann, in Klio, v. 87. 
 
 2 Christ, in Sitzb. d. bayer. Akad. 1906. 207. 
 
 8 Livy i. 55. 3 f.; CIL. ix. 1618, 5565; Nissen, Ital. Landesk. ii. 8 ff.; Korne- 
 mann, in Klio, v. 80. 
 
 4 Dion. Hal. iv. 15; Nissen, Ital. Landesk. ii. 9-15. Doubtless oppidum applied 
 primarily to the enclosing wall, thence to the space enclosed; Caes. B. G. v. 21 ; 
 Varro, Z. Z. v. 153. From the beginning it must have been the chief or central 
 settlement of the pagus, though the organization was not urban but territorial-tribal; 
 cf. Pohlmann, Anfdnge Horns, 40 ff. 
 
 6 Livy ix. 41. 6; x. 18. 8; CIL. i. 199; Isid. Etym. xv. 2. 11 : " Vici et castella 
 et pagi sunt quae nulla dignitate civitatis ornantur, sed vulgari hominum conventu 
 incolunturet propter parvitatem sui maioribus civitatibusattribuuntur;" Fest. ep. 72; 
 Nissen, ibid. 11. 
 
THE POPULUS 7 
 
 was artificial, yet it must have taken some account of existing 
 ties of blood. 1 At the same time the oppidum became an urbs a 
 — 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 3 were merged in one urbs — that 
 known as the city of the four regions. 4 Urbs and ager excluded 
 each other, just as the oppidani contrasted with the pagani; 5 
 but both were included in the populus. 
 
 Most ancient writers represent the three tribes as primarily 
 local, 6 and the members as landowners from the founding of 
 the city. 7 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. 8 
 
 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. 9 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 
 
 1 Thus the three tribes of Cyrene were made up each of a nationality or group of 
 nationalities (Hdt. iy. 161), and the ten tribes of Thurii were named after the 
 nationalities of which they were respectively composed; Diod. xii. n. 3. 
 
 a The Romans founded their colonies according to Etruscan rites, and they be- 
 lieved their city to have been established in the same way; Varro, Z. Z. v. 143; Cato, 
 in Serv. in Aen. v. 755; Fest. 237. 18; Kornemann, in Klio, v. 88. The word Roma 
 is now declared to be Etruscan; Schultze, Lat. Eigennam. 579 ff.; Schmidt, Karl 
 Fr. W., in Berl. Philol. Woch. 1906. 1656. 
 
 8 Richter, Top. d. Stadt Rom, 30 ff., still believes that the earliest settlement was 
 on the Palatine. His view is controverted by Degering, H., in Berl. Philol. Woch. 
 xxiii (1903). 1645 f., who prefers the Quirinal; cf. also Carter, J. B., in Am. Journ. 
 ofArchaeol. xii (1908). 172-83. 
 
 * Cf. Richter, ibid. 38; Meyer, E., in Hermes, xxx. 13. 
 
 6 Cf. Nissen, Ital. Landesk. ii. 504. 
 
 8 Cf. Varro, Z. Z. v. 55 ; Verrius Flaccus, in Gell. xviii. 7. 5. The idea of Isidorus, 
 Etym. ix. 6. 7, is of course absurd. 
 
 7 This subject will be considered in connection with the Servian tribes ; p. 48 f. 
 
 8 Dion. Hal. iv. 14. 2. 
 •P-74. 
 
8 THE ROMAN ASSEMBLIES 
 
 celerum, 1 the ludus Troiae, 2 and less certainly in the Sodales 
 Titii. 3 
 
 III. The Curiae 
 
 The curia as well as the tribe was a common Italian institu- 
 tion. We know that it belonged to the Etruscans, 4 the Latins, 5 
 and several other peoples of Italy. 6 There were ten curiae to 
 the tribe, making thirty in all. 7 The association was composed, 
 not of gentes as many have imagined, but of families. 8 For the 
 
 1 Like the Attic phylobasileis they continued through historical time to perform 
 sacerdotal functions; Dion. Hal. ii. 64. 3; Fast. Praen. Mar. 19, in CIL. i 2 . p. 234: 
 ■"(Sali) faciunt in comitio saltu (adstantibus po)ntificibus et trib. celer;" Holzapfel, 
 in Beitr. z. alt. Gesch. i. 242. 
 
 2 Verg. Aen. v. 553 ff.; Serv. in Aen. v. 560; Holzapfel, ibid. 243. 
 8 P. 2, n. 6. 
 
 * Fest. 285. 25 ; cf. Serv. in Aen. x. 202. 
 
 6 There were curiae in Lanuvium, an old Latin town; CIL. xiv. 2120. Juno 
 Curis, Cur(r)itis, Quiritis, goddess of the curiae, was worshipped in Tibur (Serv. 
 in Aen. i. 17), and in Falerii (Tertul. Apol. 24; CIL. xi. 3100, 3125, 3126; cf. Holz- 
 apfel, Beitr. a. alt. Gesch. i. 247; Roscher, Lex. d. griech. «. rom. Myth. II. i. 596 f.). 
 A connection between Curis and curia is not clear; Deecke, Falisker, 86. 
 
 6 Aristotle, Politics, 1329, b 8, considers Italus, king of the Oenotrians, to have 
 been author of the mess-associations (avaalrta), adding that the institution was 
 derived from the country of the Opici and the Chaonians. With the Opici he in- 
 cludes Latins as well as Ausonians; Dion. Hal. i. 72. 3. On the relation of these 
 peoples to one another, see especially Pais, Anc. Italy, ch. i. Greek writers identify 
 the curia with the phratry (Dion. Hal. ii. 7. 3 f.; Dio Cass. Frag. 4. 8), the iraipeta, 
 and the syssition (Dion. Hal. ii. 23. 3; Dio Cass. ibid.). Although the institutions 
 designated by these four names show considerable variety of form and function, they 
 are similar in general character and may have a common origin; Meyer, Gesch. d. 
 Alt. ii. 514. 
 
 The myth which names the curiae after the Sabine women suggests that some of 
 the curial names, and perhaps the curiae themselves, might be found among the 
 Sabines. On Rapta and Titia however see p. 11, n. 7. 
 
 T Dion. Hal. ii. 7. 2; Dio Cass. Frag. 5. 8; Plut. Pom. 20; Fest. 174. 8; ep. 49; 
 (Aurel. Vict.) Vir. III. ii. 12; Serv. in Aen. viii. 638; Pomponius, in Dig. i. 2. 2. 2. 
 Soltau, Altrom. Volksversamml. 47 f., entertains the peculiar idea that the curiae, 
 invented to counteract the independent tendencies of the tribes, were not divisions 
 of the tribes, the members of each curia being drawn from all three tribes. His 
 view is contradicted by the sources and he admits that he cannot prove it. 
 
 St. Augustine, Enarr. in Psalm. 121. 7 (iv. 2. 1624 ed. Migne), and still later 
 Paulus, the epitomator of Festus, 54, suppose that there were thirty-five curiae. Not- 
 withstanding Hoffmann, Pair. u. pleb. Cur. 44 ft., the opinion of these late writers 
 doubtless arose from an identification of the curiae with the tribes; cf. Kiibler, in 
 Pauly-Wissowa, Rcal-Encycl. iv. 1818. 8 P. II f. 
 
THE POPULUS 9 
 
 performance of its social and religious functions it had a house 
 of assembly, also called curia, 1 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 his- 
 torical time there were two such buildings — the Curiae Veteres 2 
 on the northeast slope of the Palatine near the Arch of Con- 
 stantine, containing seven curial meeting-places, and the Novae 
 Curiae 3 near the Compitum Fabricium, containing the others. 
 Their deities were Juno 4 and Tellus ; 5 and their chief festivals 
 were the Fornacalia and the Fordicidia. 6 As the worship was 
 public, the expense was paid by the state. 7 At the head of the 
 curia stood the curio — who in historical time was merely a 
 
 1 The word is derived from * co-viria, " a dwelling together," " an assembly," by Pott, 
 Etym. Forsch. ii. 373 f. (cf. Vanicek, Etym. Worterb. d, lat. Spr. 160; Walde, Lat. etytn. 
 Wbrterb. 161), who is followed by Schwegler, Rom. Gesch. i. 496, n. 8, 610, n. 4; 
 Herzog, Rom. Staatsverf. i. 96. Mommsen, Rom. Staatsr. iii. 5, 90 and notes, gives 
 the word the meaning " an association of citizens," deriving it from quiris (cf. Abriss, 
 11), which he connects with Kvpos, xipiot, as did Lange in 1853 (JCleine Schriften, i. 
 147). Afterward — Rom. Alt. i. (1876) 91 — Lange expressed some doubt as to this 
 connection. But the fact that curia applies to the house not only of the curiales, but 
 also of the senate and of the Salii, as well as to various other buildings, seems to 
 indicate that the meaning " house " is primary for the Latin language if not ulti- 
 mately original. Corssen, who accepts this meaning, derives cu- from sku-, "to 
 cover," "to protect" {Aitsspr. i. 353 f.; Vanicek, Griech.-lat. etym. Wbrterb. 1116), 
 cf. Old High Germ, hu-t, hu-s, Eng. " house." Although Mommsen, Rom. Staatsr. 
 iii. 90, n. 2, protests against this explanation, it is accepted by Meyer, Gesch. d. Alt. 
 ii. 511, Soltau, Altrom. Volksversamml. 52, and others. Far less probable is a con- 
 nection with cura, curare, assumed by most ancient writers; cf. Varro, L. L. v. 155; 
 vi. 46; Vit.pop. rom. in Non. Marc. 57; Fest. ep. 49; Pomponius, in Dig. i. 2. 2. 2 ; 
 Dio Cass. Frag. 5. 8; Isid. Etym. xv. 2. 28. These sources have misled Genz, Patr. 
 Rom, 32, into fruitless speculation on the functions of the curia. 
 
 2 Tac. Ann. xii. 24. 
 
 8 Fest. 174. 6; Jordan, Top. d. Stadt Rom, I. i. 165 f.; iii. 43 { -l Gilbert, Gesch. u. 
 Top. d. Stadt Rom, i. 102 f.; 195 ff.j Richter, Top. d. Stadt Rom, 33, 340; Lanciani, 
 Ruins and Excavations of Ancient Rome, map opp. 58; Mommsen, Rom. Staatsr. 
 iii. 99. 
 
 4 P. 8, n. 5; Dion. Hal. ii. 50. 3; Fest. 254. 25; ep. 64; cf. Roscher, Lex. II. i. 
 596. 
 
 6 Worshipped in the Fordicidia; Ovid, Fast. iv. 634; Lyd. De Mens. lv. 49; Wis- 
 sowa, Rel. u. Kult. d. Rom. 159. 
 
 6 On the curial worship, see Varro, L. L. vi. 13; Fest. 254. 25; 317. 12; Dion. 
 Hal. ii. 23. 1-3; 50. 3; 65. 4; Ovid, Fast. ii. 527 ff.; iv. 629 ff.; Plut. Q. R. 89; 
 cf. Fowler, Roman Festivals, 71-2, 302-6. On the stultorum feriae, see Wissowa, 
 ibid. 142; Fowler, ibid. 304 ff. 
 
 7 Dion. Hal ii. 23. 1; Fest. 245. 28. 
 
io THE ROMAN ASSEMBLIES 
 
 priest 1 — assisted in his religious functions by his wife and 
 children, 2 by a lictor 3 and a flamen. 4 The fact that the curio 
 had these officials proves that he was originally a magistrate. 5 
 One of the curiones the people elected curio maximus to exercise 
 general supervision over the worship and festivals of the as- 
 sociation. 6 
 
 Another function of the curiae was political. The gro'wh 
 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. 7 Religious and polit- 
 ical 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 8 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. 9 Doubtless 
 the writer fairly describes the military system which Rome em- 
 ployed before the introduction of the phalanx, 10 and which cor- 
 
 1 Varro, L. L. v. 83; vi. 46; Dion. Hal. 64. I; 65. 4; Fest. ep. 49, 62; Lyd. 
 De Mag. i. 9. 
 
 2 Dion. Hal. ii. 22. 1. 
 
 8 CIL. vi. 1892; xiv. 296; Gell. xv. 27. 2; cf. Cic. Leg. Agr. ii. 12. 31. 
 
 * Fest. ep. 64 : " Curiales flatnines curiarum sacerdotes." For the flamen of the 
 Curia Iovis of Simitthus, see CIL. viii. 14683; cf. 2596 and 1 1008. The statement 
 of Festus, 154. 26, that there were but fifteen flamines must be modified. But there 
 may have been fewer than thirty curial flamines; Mommsen, Rom. Staatsr. i. 390. 
 Of the two curial officials mentioned by Dionysius, ii. 21. 2, therefore, one was the 
 curio and the other a lictor (Mommsen, ibid. 309, n. 5 ; Genz, Pair. Rom, 47) or a 
 flamen (Holzapfel, in Beitr. z. alt. Gesch. i. 242). 
 
 6 Cf. Wissowa, Rel. u. Kult. d. Rom. 338, u. 3, 413, n. 2. 
 
 6 Livy iii. 7. 7; xxvii. 8. 1; Fest. ep. 126. This official was probably instituted 
 after the curiones had become mere priests; Genz, ibid. 48. 
 
 7 P. 157. The comitium was a place of assembly adjoining the Forum. 
 » II. 7. 2 f.; 23. 3. 
 
 9 Soltau, Altrbm. Volksversamml. 52, 65, following J. J. Muller, in Philol. xxxiv 
 (1874). 96-136, refuses to credit a military character to the curiae because it is men- 
 tioned by no other writer and because we can find no trace of it in historical time. 
 His reasoning is not cogent. The curia may have lost its earlier military function, 
 as did the phratry (//. ii. 362 f.). 
 
 10 That the antiquarians had some evidence as to the military character of the 
 curiae is suggested by Fest. ep. 54 : " Centuriata comitia item curiata dicebantur, 
 quia populus Romanus per cetenas turmas divisus erat." 
 
THE POPULUS ii 
 
 responds closely with the system prevalent among the early 
 Greeks, 1 Germans, 2 and other European peoples. 3 The military 
 organization was everywhere a parallel of the civil. The Roman 
 army, however, was by no means identical with the curiate as- 
 sembly, for many belonged to the tribes and the curiae who for 
 various reasons were exempt from military service.* 
 ^■t is probable, too, that the curiae, as well as the tribes, 6 were 
 territorial divisions. Not only have we the authority of Dionys- 
 ius 6 that each curia occupied a district of the state, but also 
 two of the seven known curial names — Foriensis and Veliensis 7 
 — are local. Though the two mentioned refer to places within 
 the city, the country people were also included in the associa- 
 tions. 8 
 
 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 
 
 !//. ii. 362 f. 
 
 2 Tac. Germ. 7. 3. 
 
 8 Schrader, Reallex. 349 f. 
 
 4 All adult male citizens had a right to attend this assembly, all who were physically 
 qualified and of military age were liable to service when called to it; but probably 
 on no occasion were those present in the assembly identical with the military levy 
 of the year ; cf. p. 203. 
 
 5 P. 7- 
 
 6 II. 7. 4. The curiales must have been neighbors in order to use a common dry- 
 ing oven ; n. 8 below. 
 
 7 Fest. 174. 12. The first is evidently named after the Forum, the second after the 
 Velia; cf. Plut. Rom. 20, who states that many were named after places. Of the other 
 five Velitia (Fest. ibid.), Titia (ibid. ep. 366), Faucia (Livy ix. 38. 15), and Acculeia 
 (Varro, L. L. vi. 23) have gentile endings. We should not imagine these four to be 
 named after gentes, which were of later origin; Botsford, in Pol. Sci. Quart, xxi. 
 (1907). 685 ff. It would be safer to assume that they, like gentilicia, are derived 
 from the names of persons real or imaginary. Rapta (Fest. 174. 12) and Titia pos- 
 sibly suggested to the ancients the derivation of the curial names from those of the 
 captive Sabine women ; cf. p. 8, n. 6. 
 
 8 Dion. Hal. iv. 12. 2. This statement is confirmed by the nature of the Fornacalia, 
 the chief festival of the curiae; it was celebrated in connection with the drying of 
 the far in ovens; Pliny N. H. xviii. 2. 8; Fest. ep. 83, 93. Evidently the members 
 of a curia were those who had a common drying oven ; Wissowa, Rel. u. Kult. d. 
 Rom. 142. 
 
12 THE ROMAN ASSEMBLIES 
 
 leader, who in the language of the country is called decurion." x 
 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 IP 
 legion. 2 From Varro 3 we learn that the three primitive tribes 
 furnished turmae and decuriae of cavalry, the decuriae com- 
 manded 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. 4 Had he meant gentes, he 
 would have used the corresponding Greek word ^evt]. Niebuhr 6 
 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, 6 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. 7 
 It is clear, however, that in this passage Laelius is not con- 
 cretely defining the voting units of the various assemblies, but 
 is stating in a general way the principles underlying their 
 
 1 AtiprivTai Si koX els SeKiSas ai (ppirpat, irp&s airov, Kal tiyen&v iici(rTT)v 4k6<j/mi 
 SexiSa, ScKovpluv /caret t^v iirixupiov y\uTTav TrpotrayopfuSftevos. 
 
 2 Polyb. vi. 25. 1; cf. 20. 9. a Z. Z. v. 91. 
 
 4 There is no need of assuming, with Bloch, Origints da s'enat Romain, 102-5, 
 that the decuriae mentioned by Dionysius are " purely imaginary." 
 
 6 Rom. Gesch. i. 334 f.; Eng. 163; cf. also Schwegler, Rom. Gesch. i. 612 f. The 
 antiquated view is still held by Herzog, Rom. Staatsverf. i. 96, and by Lecrivain, in 
 Daremberg et Saglio, Diet. ii. 1504. Though Ihne, History of Rome, i. 113, n. 3, 
 believes that the curiae were composed of gentes, he is doubtful as to the number. 
 
 6 "Cum ex generibus hominum sufiragium feratur, curiata comitia esse; cum ex 
 censu et aetate, centuriata; cum ex regionibus et locis, tributa." 
 
 7 Mommsen, too, supposes that genera here means gentes but is used so as to in- 
 clude also the plebeian stirpes ; nevertheless he knows that the voting in the curiate 
 assembly was by heads rather than by gentes; Rom. Staatsr. iii. 9, n. 2; 90, u. 5. 
 
THE POPULUS 13 
 
 organization into voting units. In the comitia centuriata the 
 principle is wealth and age ; census et aetas is not to be identi- 
 fied with centuria or with any other group of individuals in this 
 assembly. In like manner regiones et loca expresses the prin- 
 ciple of organization of the tribal assembly ; or if used con- 
 cretely, it must designate the tribes themselves, and not 
 s^rWnvisions 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 them- 
 selves 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. 1 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., Romische 
 Geschichte, I. bk. viii ; Peter, C, Geschichte Roms, i. 17 ff. ; Niese, B., Grund- 
 riss der r'om. Geschichte, 16 ff., 28 ff. ; Jordan, H., Topographic der Stadt 
 Rom im Altertum, I. i. 153 ff.; iii. 34; Gilbert, O., Geschichte und Topogra- 
 phic der Stadt Rom im Altertum, i, ii ; Richter, Topographic 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 
 Landcskunde, ii. 488 ff. ; Kornemann, E., Palis und Urbs, iaKlio, 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 friihesten zeiten Roms, in Correspbl. d. deutsch. Gesellsch. f. Anthr. 
 Ethn. u. Urgesch. xxxv (1904). 122; Pohlmann, R., Die Anfange Roms; 
 Schrader, O., Sprachvergleichung und Urgeschichte, bk. IV. ch. xii ; Heer, 
 Konig, Sippe, Stamm in Reallexikon der indogermanischen Altertumskunde ; 
 Fustel de Coulanges, Ancient City, bk. iii; Leist, Graeco-italische Rechtsge- 
 
 1 Livy i. 43. 10 : " Viritim suffragium . . . omnibus datum est " (i.e. in the 
 curiate assembly). This statement of the lack of relation between the gens and the 
 curia is repeated from Pol. Sci. Quart, xxi. 511 f. 
 
14 THE ROMAN ASSEMBLIES 
 
 schichte, 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; Rom. 
 Staatsrecht, iii. 3 ff., 1 12-22 ; Marquardt, J., Rom. Staatsverwaltung, i. 3 ff- ; 
 Lange, L., Rom. Alterfumer, i. 55-284 ; Das rbm. Konigtum, in Kleme 
 Schriften, i. 77-104 ; Herzog, E., Geschichte und System der rbm. Staatsver- 
 fassung, i. 3-23, 969 ff. ; Willems, P., Droit public Romain, 17 ff ; Karlowa, 
 O., Rom. Rechtsgeschichte, i. 30 ff. ; Greenidge, A. H. J., Roman Public Life, 
 ch. i ; Bernhoft, F., Staat und Recht der rbm. Kbnigszeit, 69 ff. ; Genz,fl^J 
 patricische Rom, 51 ff. ; Morlot, E., Les cornices ilectoraux sous la ripublique 
 Romaine, ch. i. 
 
 II. The Primitive Tribes: Niebuhr, B. G., Rom. 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 
 Kbnige im alten Italien, 35-7 ; controverted by W. Soltau, in Woch. f. Kl. 
 Philol. xxv (1908). 220-3; Mommsen, Rom. Staatsr. iii. 95-100, 109-12; 
 Rom. Tribus, if.; Lange, Rom. Alt. i. 81-101 ; Herzog, ibid. i. 23 ff. ; Madvig, 
 J. N., Rom. Staat. i. 95-8 ; Mispoulet, J. B., Les institutions politiques des 
 Romains, i. 3-6; Soltau, W., Altrbm. Volksversammlutigen, 46-51 ; Willems, 
 P., Le sinat de la ripublique Romaine, I. ch. i ; Bloch, G., Les origines du 
 sinat Romain, 1-16, 32-8; Bernhoft, 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 ro?nanonm tribuum origine ac propogatione 
 1 ff. ; Volquardsen, C. A., Die drei altesten rom. Tribus, in Rhein. Mus. 
 N. F. xxxiii (1878). 538-64; Bormann, E., die dlteste Gliederung Roms, in 
 Eranos Vindobonensis, 345-58 ; Holzapfel, L., Die drei altesten rom. Tribus, 
 in Beitrdge zur alten Geschichte,! (1902). 228-55; Bertolini, C. I., 1 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 ; Vanicek, A., Etymologisches Worterbuch 
 der lat. Sprache, 160 ; Griech.-lat. etym. Worterbuch, 11 16; Niebuhr, ibid. i. 
 321-54; Schwegler, ibid. i. 610-12; Gilbert, ibid, index s. Curia ; Richter, ibid, 
 index s. Curia ; Mommsen, Rom. Staatsr. iii. 89 ff. ; Lange, ibid. i. 275-84, and 
 index, s. Curia ; Willems, P., Sin. Rom. ibid. ; Bloch, G., Orig. d. sin. 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 ; Muller, J. J., Studien zur rom. Verfassungsgeschichte, 
 in Philol. xxxiv (1875). 96 ff. ; Ihne, Wm., History of Rome, i. 113 f . ; New- 
 man, F. W., Dr. Ihne on the Early Roman Constitution, in Classical Museum, 
 vi (1849). J 5 ff-! Hoffmann, E., Patricische und plebeiische Curien; Kubler 
 and Hulsen, Curia, in Pauly-Wissowa, Real-Encycl. iv. 1815-26; Pelham H. 
 The Roman Curiae, in (English) Journal of Philology, ix (1880). 266-79. 
 
THE POPULUS 15 
 
 IV. The Gentes : Fustel de Coulanges, ibid. bk. ii*; Leist, Graeco-ital. 
 Rechtsgesch. 11 ff. ; Alt-arisches lus 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 Annates de Vinstitut 
 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. 2H-59, and see index, s. v.; Mommsen, Rom. Forsch. i. 1-127; 
 Rom. Staatsr. iii. 9-53, and see index s. v.; Mispoulet, ibid. i. 9-14; 
 Willems, Sen. Rom. i. chs. i-iii; Muller, J. J., Studien z. rom. Verfassungs- 
 gesch. in Philol. xxxiv (1876). 96-104; Bloch, G., ibid. 102 ff. ; Recherches 
 .sur quelques gentes patriciennes, in Milanges d^archiologie et d^histoire de 
 Vkole Francaise de Rome, 1882. 241-76; Soltau, ibid. 58-64, 652-5; Bern- 
 hoft, ibid. ; Genz,ibid. 1-31; Bloch, L., Die standischen und sozialen Kampfe 
 in der rom. Republik ; Holzapfel, L., // numero dei senatori Romani dttrante 
 il periodo deirei, in Rivista di storia antica, ii. 2 (1897). 52-64; Marquardt, 
 J., Privatleben der R'dmer, 1-26, 353 f. ; Deecke, ibid. 275 ff. (on Italian 
 names) ; Michel, N. H., Du droit de cite Romaine ; Kohm, J., Altlateinische 
 Forschungen, 1-21 ; Le'crivain, C, Gens, in Daremberg et Saglio, Diet. 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 uber 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 x is primarily an inquiry into the social composi- 
 tion 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, 2 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 ad- 
 mission 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 (i) 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 
 
 1 It is in the main a reproduction of my article on the subject in Pol. Sci. Quart. 
 xxi (J906). 498-526. 2 P. 25 ff. 
 
 16 
 
SOCIAL COMPOSITION OF THE POPULUS 17 
 
 the patricians from the plebeians. According to Cicero, 
 Romulus constituted a number of chief men into a royal coun- 
 cil, the senate, whose members he so highly esteemed as to have 
 them called patres, and their children patricians. 1 Cicero thinks 
 of the multitude as existing at first without a politically recog- 
 nized nobility, yet showing natural distinctions of worth. By 
 calling into the senate the ablest and best men, the state en- 
 nobled them and their families. 2 Livy's 3 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 ; 4 on that ground 
 the state granted them nobility, 5 which accordingly in Rome, as 
 in every early community, was founded on personal merit. 6 In 
 the more detailed theory of Dionysius, 7 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 8j)/j.otiko(, 
 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 Plu- 
 tarch, 8 " Romulus, after forming the army, employed the rest of 
 the people as the citizen body (S^/ios) ; the multitude he called 
 
 1 Rep. ii. 8. 14; 12. 23: " Senatus, qui constabat ex optimatibus, quibus ipse rex 
 tantum tribuisset, ut eos patres vellet nominari patriciosque eorum liberos." 
 
 3 In the expression " omnibus patriciis, omnibus antiquissimis civibus," Cicero 
 (Caec. 35. 101) intends no more than to include the patricians among the oldest 
 citizens, whom he is contrasting with the newly-admitted municipes. Only the 
 most superficial examination of the passage (cf. Willems, Sen. Rom. i. 7) could make 
 " omnibus patriciis " equivalent to " omnibus antiquissimis civibus." 
 
 8 I. 8. 7. 
 
 4 Ibid. : " Consilium deinde viribus parat : centum creat senatores." 
 
 6 Livy iv. 4. 7 : " Nobilitatem istam vestram quam plerique oriundi ex Albanis et 
 Sabinis non genere nee sanguine sed per cooptationem in patres habetis, aut ab re- 
 gibus lecti aut post reges exactos iussu populi." 
 
 * Livy i. 34. 6 : "In novo populo, ubi omnis repentina atque ex virtute nobilitas 
 sit." 
 
 7 II. 8. 1-3. In 12. I, he shifts his point of view: Romulus chose the hundred 
 original senators from the patricians. 
 
 • Rom. 13; cf. Q. R. 58. 
 
 c 
 
1 8 THE ROMAN ASSEMBLIES 
 
 populus, and appointed a hundred nobles to be councillors, 
 whom he called patricians, and their assembly the senate. 1 
 
 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. 2 Why the senators were called patres the ancients 
 give various reasons. Cicero 3 thinks patres a term of endear- 
 ment; Sallust 4 believes that the name was applied either be- 
 cause of age or because of the similarity of their duty ; Livy 5 
 sets it down as a title of honor; Festus 6 thinks chiefly of their 
 age and wisdom; Paulus, 7 his epitomator, suggests that they 
 were so called because they divided their lands among the 
 poorer class as fathers among children ; Dionysius 8 gives three 
 possible reasons, (i) greater age, (2) possession of children, 
 (3) family reputation. The sources generally agree in repre- 
 senting 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 
 
 1 Cf. further Ovid, Fast. iii. 127; Veil. i. 8. 6; Fest. 246. 23; 339. 11. 
 
 2 There is no inconsistency, however, in the fact that some noble gentes claimed 
 descent from Aeneas or from deities (cf. Seeley, Livy, 57) or from Alban or Sabine 
 ancestors (cf. Livy i. 30. 2; iv. 4. 7; Dion. Hal. ii. 46. 3; iii. 29. 7); they were 
 nobles in their original homes before the founding of Rome, but became patricians 
 by an act only of the Roman government. 
 
 Although after the creation of the first hundred patres, the ancients do not dis- 
 tinctly state that each newly-made senator was the founder of a new patrician family, 
 they do represent the enlargement of the senate and of the patriciate as going hand 
 in hand; in this way they continue to make the patriciate depend upon membership 
 in the senate; cf. Livy i. 30. 2; 35. 6; Dion. Hal. ii. 47. 1; iii. 67. 1; Madvig, 
 Rom. Staat. i. 75. 
 
 8 Sep., ii. 8. 14; cf. (Aurel. Vict.) Vir. III. ii. u. 
 
 * Cat. 6. 6; cf. Isid. Etym. ix. 6. 10: "Nam sicut patres suos, ita illi rem pub- 
 licam habebant " (or " alebant "). 
 
 6 I. 8- 7- "339- "• 7 2 47 . 8 ii. 8. 1. 
 
SOCIAL COMPOSITION OF THE POPULUS 19 
 
 senators. 1 An examination of the word itself will tend to con- 
 firm the ancient view. It seems to have originally signified 
 "protector," " keeper," "nourisher," 2 hence "owner," " master." 
 Pater familias is nourisher, protector, and master of a house- 
 hold. 8 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 ; * 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 indi- 
 cates, was originally made up of elderly men, senatores, maiores 
 natu. 6 It would be natural to call them patres because of their 
 authority over the community or of their age. As a designa- 
 tion 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 col- 
 lectively patres of the community, not individually patres of 
 children, clients or gentes. 6 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. 7 
 Though in the sources the patres are generally senators the 
 word is sometimes synonymous with patricii. 8 
 
 1 Cf. Mommsen, Rom. Forsch. i. 227. 
 
 2 From the root pa, to protect, preserve, conservare ; Pott, Wurzel- Wbrterb. d. 
 Indog. Spr. (2d ed.), 221 ; Corssen, Ausspr. i. 424; Schrader, Sprachvergl. u. Urgesch. 
 538; Lecrivain, in Daremberg et Saglio, Diet. ii. 1507. 
 
 8 Dig. X. 16. 195. 2: "Pater familias appellatur qui in domo dominium habet." 
 In like manner patronus is protector of clients, pater patriae protector of his coun- 
 try; Pott, ibid. 227. 
 
 4 Ulpian, in Dig., ibid. ; " Pater autem familias recte hoc nomine appellatur, 
 quamvis iilium non habeat; non enim solam personam eius, sed et ius demonstramus : 
 denique et pupillum patrem familias appellamus." 
 
 6 Livy i. 32. 10 (from a fetial formula). 
 
 6 Rubino, Rom. Verfassung und Geschichte, 186; Mommsen, Rom. Forsch. i. 228, 
 u. 16. 
 
 7 In the same way reges is made to include the whole family of the rex; Livy i. 
 39. 2. For other illustrations of the same principle, see Rubino, ibid. 188, u. I. 
 
 8 The Twelve Tables seem to apply it to all patricians, not to senators alone : 
 Cicero, Rep. ii. 37. 63: "Conubia . . . ut ne plebei cum patribus essent;" Livy iv. 
 4. 5 : " Ne conubium patribus cum plebe esset." These passages, however, do not 
 afford absolute proof; for Gaius, bk. vi ad legem Duodeeim Tabular um {Dig. 1. 16. 
 
ao THE ROMAN ASSEMBLIES 
 
 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," 1 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 un- 
 known 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 2 
 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, noth- 
 ing more than ingenui ? I can now cite my father — a consul — 
 and my son will be able to cite a grandfather." 3 There should 
 be no doubt as to the meaning of these passages; the anti- 
 quarian who conjectured that patricius was derived from patrem 
 ciere, and therefore defined patricii as those who could cite 
 
 238: " Plebs est ceteri cives sine senatoribus"), probably commenting on the very 
 law quoted by Cicero and Livy, seems to understand patres as senators ; cf. the pro- 
 hibition of intermarriage between senators and their agnatic descendants on the one 
 hand and freed persons on the other; Dig. xxii. 2. 44; Roby, Rom. Priv. Law, 
 i. 130; Vassis, in Athena, xii. 57 f. In some instances, however, as in the expres- 
 sion "a patribus transire ad plebem" (Veil. ii. 45. 1) patres is certainly equivalent 
 to patricii. 
 
 1 Cf. gentilicius from gentilis; tribunicius from tribunus, Pott, ibid. 227. Patricius 
 is an adjective signifying paternal, ancestral, belonging to parents or progenitors; 
 Corssen, ibid. i. 53. 
 
 a In his work on the Comitia, quoted by Fest. 241. 21 : " Patricios eos appellari 
 solitos qui nunc ingenui vocentur." 
 
 * X. 8. 10 : " En umquam fando audistis patricios primo esse factos non de caelo 
 demissos, sed qui patrem ciere possent, id est nihil ultra quam ingenuos . . . ? " 
 
SOCIAL COMPOSITION OF THE POPULUS 21 
 
 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 mak- 
 ing Appius Claudius Crassus in 368 include in the term the 
 whole body of citizens Livy 1 dates this meaning back to the 
 period before the Licinian-Sextian laws. Elsewhere are indi- 
 cations that in early times ingenui connoted rather respectable 
 birth, and so applied especially to the patricians. 2 The quota- 
 tions from Cincius and the attempted derivation of patricius 
 from patrem ciere, accordingly, are sufficiently explained with- 
 out 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 ad- 
 jective patricius applied as well to their families — the patricii 
 being those who could cite illustrious fathers. 3 From this point 
 of view the Roman nobility did not differ from that of most 
 other countries. 
 
 The plebs, 4 then, were the mass of common freemen, from 
 whom the nobility was differentiated in the way described above. 
 
 1 VI. 40. 6. The speaker contrasts ingenui with patricii. 
 
 2 Plut. Q. R. 58 : Those who were first constituted senators by Romulus were 
 called patres and patricii as being men of good birth, who could show their pedigree. 
 In its adjectival and adverbial uses ingenuus connotes not the quality of free birth, 
 but respectability, nobility. The original meaning is " born within," hence indige- 
 ous, native; cf. Forcellini, Totius LaHnitatis Lexicon, s. v. In this sense it could 
 not apply to the patricians, who generally claimed a foreign origin. But native is 
 superior to alien; doubtless in this secondary meaning of excellence it attached to 
 the nobility, the close relation of the word to gens (family, lineage) attracting it in 
 that direction. Afterward it was so democratized as to include all the freeborn. 
 With this meaning we find it as early as Plautus, Mil. 784, 961. According to 
 Dionysius, ii. 8. 3, the identification of patricii with ingenui in its sense of freeborn 
 was accepted not by the most trustworthy historians, but by certain malicious 
 slanderers: "Some say they were called patricians because they alone could cite 
 their fathers, the rest being fugitives and unable to cite free fathers." 
 
 8 P. 30. 
 
 4 The word is probably derived from the same root as populus; Corssen, Aasspr. 
 i. 368; cf. p. I, u. 3 above. 
 
22 THE ROMAN ASSEMBLIES 
 
 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 1 records that Romulus dis- 
 tributed the plebs in clientage among the chief men ; Dionysius 2 
 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, 3 her historians doubt- 
 less 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 4 
 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. 6 The 
 latter view is historically better founded. 
 
 There must have been various origins of clientage, with cor- 
 responding 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 6 and to 
 the forum, 7 but also testified and brought accusations in the 
 courts 8 and voted in the assemblies ; 9 and when the plebeians 
 gained the right to hold offices the clients were admitted along 
 with them to the same privilege. 10 In his relation with the state, 
 
 1 Rep. ii. 9. 16. 2 ii. 9. 2 . 
 
 8 Notably among the Sabines, Livy ii. 16. 4; Dion. Hal. ii. 46. 3. 
 4 Cicero, Rep. ii. 9. 16; Dion. Hal. ii. 9. 2. 
 
 6 Cf. the citations in Mommsen, Rom. Staatsr. iii. 71, n. 1. Dionysius, ii. 63. 3, 
 distinguished the two classes as early as the interregnum which followed Romulus. 
 
 6 Dion. Hal. v. 40. 3; vi. 47. i; vii. 19. 2; x. 43. As late as 134 Scipio called 
 his clients to follow him to the Numantine war; Appian, Iber. 84. 
 
 7 Livy iii. 58. 1. 8 D ; on . Hal. ii. 10. 3. 
 
 9 Livy ii. 56. 3; 64. 2; Dion. Hal. ii. 10. 3; iv. 23. 6; ix. 41. 5. 
 
 10 Dion. Hal. ii. 10. 3 (it was not lawful for either patron or client to vote against 
 the other). Marius, a client of Herennius, was elected to the praetorship; Plut. 
 Mar. 5. A law declared that election to a. curule office (according to Plutarch, or 
 
SOCIAL COMPOSITION OF THE POPULUS 23 
 
 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." 1 Since the 
 sources generally consider the patricians the descendants of the 
 hundred original senators, 2 they cannot help regarding the pop- 
 ulus 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 interchange- 
 able with plebs; often, too, it signifies the people in contrast 
 with the senate. 8 It is clear, then, as Mommsen has pointed 
 out, 4 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 dis- 
 tinguished 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 
 
 as Marius asserted to any office) freed a man and his family from clientage. Evi- 
 dently this law was passed in or after 367 B.C. Mucius, a client of Ti. Gracchus, 
 was elected to the plebeian tribunate ; Hut. Ti. Gracch. 13. Cn. Flavius, who was 
 the son of a freedman and probably therefore a client, was elected curule aedile for 
 304; Livy ix. 46. 1; Val. Max. ii. 5. 2. 
 
 1 Gaius 1. 3: "Plebs autem a populo eo distat, quod populi appellatione universi 
 cives significantur connumeratis etiam patriciis; plebis autem appellatione sine 
 patriciis ceteri cives significantur." Evidently Pomponius held the same view; Dig. 
 i. 2. 2. 1-6; cf. Capito, in Gell. x. 20. 5; Fest. 233. 29; 330. 19; Isid. Etym. ix. 6. 
 5 f.; Mommsen, Rom. Staatsr. iii. 4, n. 2. 
 
 2 Cicero, Rep. ii. 12. 23; Livy i. 8. 7; Zon. vii. 9; Isid. Etym. ix. 6. 6. 
 
 8 Illustrations of this common use are Cicero, Rep. ii. 8. 14; 12. 23; Livy ii. 54. 
 3; iv. 51. 3; x. 13. 9; xxv. 2. 9; 3. 13; 3. 16; xxx. 27. 3; xxxiv. 54. 4; xxxvii. 58. 
 I ; xliii. 8. 9. The Greeks always regard populus as the equivalent of Sijfuis; cf. Plut. 
 Rom. 13. Not only does the tribune in addressing the plebs call them populus 
 Romanus (Sail. lug. 31), but the consuls also apply the term to the same class 
 (Livy xxv. 4. 4); and a statement of Cicero {Leg. Agr. ii. 7. 17), which has the 
 appearance of a legal definition, makes the people of the thirty-five tribes under a 
 tribune the universus populus Romanus. * Rom. Forsch. i. 172. 
 
24 THE ROMAN ASSEMBLIES 
 
 meaning patricians. 1 The combination of the two words with 
 senatus, 2 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. 3 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 com- 
 position to its divisions, the three old tribes and the thirty 
 curiae. 4 With perfect consistency they mention repeated en- 
 largements 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 excep- 
 tion to the citizenship and to the tribes and the curiae, even 
 compelling some forcibly to enter this condition. 5 
 
 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 
 
 1 Cic. Fam. x. 35; Verr. v. 14. 36; Mur. I. I; Livy xxix. 27. 2: Tac. Ann. 1. 8; 
 Macrob. Sat. 1. 17. 28; cf. Mommsen, Rom. Forsch. i. 169, n. 4. 
 
 2 E.g. senatui populo plebique Romanae; Cicero, Fam. x. 35 (address). 
 
 s Mommsen, Rom. Staatsr. iii. 6, n. 4; Soltau, Allrbm. Volksversamml. 84. 
 
 4 For the division of the populus into tribes and curiae, see Cic. Rep. ii. 8. 14; 
 Livy i. 13. 6; Dion. Hal. ii. 7. 2; App. B. C. iii. 94. The author of Vir. III. 2. 12, 
 in supposing that the plebs alone were assigned to the tribes is certainly wrong; 
 but his mistake is pardonable in view of the general agreement among our sources 
 that the populus, 7rXij0os, contained in the curiae were mainly plebeian. 
 
 6 Cic. Rep. ii. 7. 13; 8. 14; 18. 33; Livy i. 13. 4; 13. 6; 28. 7; 30. I; 33. 1-5; 
 Dion. Hal. ii. 46. 2 f.; 47. I; 50. 4 f.; 55.6; iii. 29. 7; 30.3; 31.3; 37.4; 4 8. 2; 
 iv. 22. 3. 
 
SOCIAL COMPOSITION OF THE POPULUS 25 
 
 patricians. 1 Not only did the lower classes attend this assembly, 
 but they also voted in it, and constituted the majority. 2 
 
 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 cen- 
 tury of the republic, they could have had no first-hand acquaint- 
 ance with primitive Roman conditions, but must have drawn 
 their information concerning the remote past from earlier writ- 
 ers — 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. 3 
 
 The position of Niebuhr has in the main proved untenable. 
 Notwithstanding all the source-sifting of modern times, pur- 
 sued 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 
 
 1 Cf. Dion. Hal. ii. 8. 4. 
 
 2 Livy i. 17. 11; 35. 2; 43. 10; 46. 1; Dion. Hal.ii. 10. 3; 14. 3; 60. 3; 62. 3; 
 iv. 12. 3; 20. 2. 
 
 8 Cf. Lectures on the History of Rome, i. 80, 83 : "I beg you to mark this well 
 . . . that even ingenious and learned men like Livy and Dionysius did not compre- 
 hend the ancient institutions and yet have preserved a number of expressions from 
 their predecessors from which we, with much labor and difficulty, may elicit the 
 truth." 
 
26 THE ROMAN ASSEMBLIES 
 
 admit that though Cicero and the Augustan writers might mis- 
 interpret 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 composi- 
 tion of the earliest assembly. Present scholarship accordingly 
 insists that in such weighty matters there was no essential dif- 
 ference of view between earlier and later writers. 1 
 
 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 docu- 
 mentary 2 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 experi- 
 ence and the acute critical method of the moderns. 3 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 there- 
 fore they or their sources, who qn the whole were equally un- 
 critical, made mistakes in the difficult work of drawing infer- 
 ences 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 
 
 1 The school of Mommsen, which still clings to Niebuhr's theory of an exclusively 
 patrician populus, has abandoned the attempt to support it by a reconstruction of 
 lost sources. 
 
 2 The late regal period may have left a few documents which, if used by the annal- 
 ists, might have thrown light on the condition of that time. It has not yet been de- 
 termined whether the inscription recently found in the Roman Forum belongs to the 
 late regal or to the early republican period. 
 
 8 Mommsen, Rom. Siaatsr. iii. 69, grants to the ancients far more knowledge of 
 their own history, but claims a " wider horizon." 
 
SOCIAL COMPOSITION OF THE POPULUS 27 
 
 spirit and character of the Roman constitution and has there- 
 fore been an especial fountain of error; 1 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 men- 
 tioned, not essentially inferior to the extant native writers. 2 
 
 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 composi- 
 tion of the primitive Roman state. Although he asserts that it 
 was made up of " patrons and clients," 3 he does not rest satis- 
 fied with this view, but proceeds to trace clientage to the fol- 
 lowing 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. 4 Log- 
 ically 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 hun- 
 dred gentes. As no one could be a citizen without membership 
 in a gens, 6 and as the patricians alone were active members of 
 the gentes, 6 it must follow that the patricians alone were citi- 
 
 1 Niebuhr treats Dionysius with great respect ; cf. Lectures, i. liv : " The longer and 
 more carefully the work is examined, the more must true criticism acknowledge that 
 it is deserving of all respect, and the more it will be found a storehouse of most 
 solid information." Schwegler, Rom. Gesch. i. 621 f., and 626 f., assumes that Dionys- 
 ius is alone responsible for the view that the plebeians were in the primitive tribes 
 and the curiae. A glance at the citations given above, p. 24 f., will show, however, 
 that Cicero and Livy shared this view. 
 
 2 Cf. Pais, Storia di Roma, I. I. 82. The usual opinion (cf. Bernhoft, Rom. 
 JCbnigsz. 8 f.) is that the sources of Dionysius are later and less trustworthy than 
 those of Livy, but Pais asserts that on the whole the two authors drew from the same 
 sources. s Rom. Gesch. i. 339, Eng. 165. 
 
 4 Lectures on Roman History, i. 81, 100 f. 6 Rom. Gesch. i. 332, Eng. 158. 
 
 6 In ibid. i. 330, Eng. 162, he excludes the " freed clients " from the gens; in 339, 
 Eng. 165, he states that the nobles alone had the gens, the clients belonged to it in a 
 dependent capacity. 
 
28 THE ROMAN ASSEMBLIES 
 
 zens. 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 Aris- 
 totle's Constitution of Athens J seems to signify that the Athenian 
 state was once divided into four tribes (<f>v\a(), twelve phratries 
 and three hundred and sixty gentes (yevrj). 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. 2 But the suppositions (i) 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, 3 and a 
 law of Draco 4 proves that the early Attic phratry comprised 
 both nobles and commons. In historical times all citizens be- 
 longed to the phratries ; whereas but few were members of the 
 gentes. 5 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, 6 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 defini- 
 tion, quoted by Cicero, 7 we may at once conclude that in their 
 
 1 Cf. the edition of Sandys, 252; Rose, Aristotelis Frag. 385. 
 
 2 Rom. Gesch. i. 326, Eng. 160. Genz, Patricisches Rom, 6, has the same idea. 
 *Il. ii. 362 f.; ix. 63 f. * CIA. i. 61; cf. Dem. xliii. 57. 
 6 This is illustrated, for instance, by a law quoted by Philochorus, in Miiller, Frag. 
 
 Hist. Grace, i. 399. 94 : Tois Si (ppiroptu iirimyices Six^9ai nal roiit dpyewvas ical 
 robs 6/io7dXoKTos, oit ye vvrjTas KaXoO/ier (" The members of the phratry must receive 
 the orgeones as well as the homogalaktes, whom we call gennetae ") . This fact is 
 now too well known to need further proof; cf. Gilbert, Constitutional Antiquities of 
 Sparta and Athens, 148 f.; Thumser, Griechische Staatsaltertumer, 324 f. 
 
 6 P. II. 
 
 7 Top. 6. 29 : " Gentiles sunt inter se, qui eodem nomine sunt. Non est satis. 
 Qui ab ingenuis oriundi sunt. Ne id quidem satis est. Quorum maiorum nemo 
 servitutem servivit. Abest etiam nunc. Qui capite non sunt deminuti. Hoc for- 
 
SOCIAL COMPOSITION OF THE POPULUS 29 
 
 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, 1 the Lutatia, 2 the Calpurnia, 3 the Domitia,* the 
 Fonteia, 6 the Aurelia, 6 and the Licinia. 7 Some gentes comprised 
 both patrician and plebeian families, as the Cassia, 8 the Claudia, 9 
 the Cornelia, 10 the Manlia, 11 the Papiria, 12 the Publilia or Poplilia, 13 
 the Aebutia, 14 and the Servilia. 15 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 16 expresses 
 
 tasse satis est. Nihil enim video Scaevolam pontificem ad hanc definitionem addi- 
 disse ; " cf. Cincius, in Fest. ep. 94. 
 
 As the word itself indicates, gentiles are members of a gens, and no other 
 members are known to the sources. If it were true, as Mommsen, Rom. Staatsr. iii. 
 66, supposes, that there were dependent members not termed gentiles, a name would 
 have been given this dependent relation, or the jurists would have denned it, or 
 some ancient writer would at least have mentioned it. The attempt of Kiibler, 
 Wochenschr. f. kl. Philol. xxv (1908). 541 f., to prove, on the authority of Cicero, 
 Tim. 11. 41, that clients were termed quasi gentiles is simply absurd. The passage 
 does not even hint at clientage ; and the quasi gentiles of the immortal gods, accord- 
 ing to this passage, were related to the gods by birth, as the word gignatis proves. 
 From this point of view men might be called the children of the gods; but because 
 the divine element in both men and gods comes alike from the Creator, it is 
 possible to place them more nearly on a level with one another — in a relation like 
 that of gentiles. Kiibler's other remarks on the gens, S39 - 43> are equally uncon- 
 vincing. 
 
 1 Cic. Brut. 16. 32; Livy iv. 16. 3; Suet. Aug. 2. Whether these two gentes had 
 ever been patrician does not affect the question at issue. 
 
 2 Val. Max. ix. 2. I. 
 
 8 Cic. Har. Resp. 15. 32, mentions sac rihcia gentilicia of the Calpurnia. 
 
 4 Suet. Ner. 1. 6 Cic. Dom. 13. 35. 6 Fest. ep. 23. 7 Varro, R. R. L 2. 10. 
 
 8 Unless Sp. Cassius, consul 502, 493, 486 B.C. and author of the first agrarian 
 rogation, is a myth ; cf. Drumann-Grobe, Gesch. Rams, ii. 94. 
 
 9 Cf. Cic. Oral. i. 39. 176. The patrician and plebeian branches are sometimes 
 spoken of as distinct gentes; Suet. Tib. 1. 
 
 10 Mommsen, Rom. Forsch. i. 113 f.; Drumann-Grobe, ibid. 359. 
 
 11 Cic. Phil. i. 13. 32; Gell. ix. 2. 11; Fest. ep. 125. M Mommsen, ibid. 116. 
 18 L. Foplilius Volscus, patrician; Livy v. 12. 10. Q. Publilius Philo, plebeian; 
 
 Livy viii. 15. 9. 
 
 14 This patrician gens included an Aebutius who was tribune of the plebs (Cic. 
 Leg. Agr. ii. 8. 21) and several other plebeians; Klebs, in Pauly-Wissowa, Real- 
 Encycl. i. 442 f. 
 
 15 Mommsen, ibid. 1 1 7 ff . 
 
 16 V. 14. 4: "Comitiis auspicate quae fierent indignum dis visum honores volgari 
 discriminaque gentium confundi." 
 
3 o THE ROMAN ASSEMBLIES 
 
 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 state- 
 ment of Cicero 1 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 2 implies the existence of plebeian 
 gentes. It is natural then that Varro 8 should make gentilitas a 
 condition of men in general. In asserting that there were a 
 thousand gentile names the same authority 4 must have included 
 those of plebeians, for scarcely a hundred belonging to patricians 
 could have been known to him. By no means the weakest argu- 
 ment in favor of the view here presented is the fact that the laws 
 of the Twelve Tables concerning inheritance, tutelage, 5 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, 6 as is sometimes our word 
 
 1 Dom. 13. 35 : "Ita perturbatis sacris, contaminatis gentibus, et quam deseruisti 
 et quam poluisti." 
 
 2 Sail. lug. 95. 3; Livy iii. 27. I; 33. 9; vi. II. 2; Gell. x. 20. 5; cf. ix. 2. II. 
 
 8 L. L. viii. 4 : " Ut in hominibus quaedam sunt agnationes ac gentilitates, sic in 
 verbis." * In Lib. Praen. 3. 
 
 6 It will suffice to quote Gaius iii. 17: "Si nullus agnatus sit, eadem lex XII Tab- 
 ularum gentiles ad hereditatem vocat"; cf. Cic. Vcrr. i. 45. 115: "Lege hereditas 
 ad gentem Minuciam veniebat." The Minucian gens was plebeian. Its right to the 
 inheritance in question rested on this law of the Twelve Tables. For the gentile 
 right of tutelage, see the so-called Laudatio Turiae, 15, 22 {CIL. vi. 1527; Girard, 
 Textes, 778). 
 
 6 Cf. p. 20; see also Auct. Inc. De Diff. 527 (Keil) : "Gens seriem maiorum 
 explicat." 
 
SOCIAL COMPOSITION OF THE POPULUS 31 
 
 family. 1 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. 2 
 
 Other evidence for his hypothesis Niebuhr thinks he finds in 
 a statement of Labeo, 8 that the curiate assembly was convoked 
 by a lictor, the centuriate by a horn-blower ; while Dionysius * 
 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 6 and Mommsen 6 have 
 deprived Niebuhr's hypothesis of its main prop. 
 
 Niebuhr evidently believed that the curiae continued ex- 
 
 1 E.g. "Family will take a person everywhere"; C. D. Warner, quoted by the 
 Standard Dictionary, s. v. 
 
 2 Mommsen's theory of the gens — a development from Niebuhr's — is criticized 
 in Pol. Set. Quart, xxii (1907). 668 f. The distinction between patrician gentes and 
 plebeian stirpes, on which he especially relies, is there shown to be groundless. 
 
 8 Gell. xv. 27. 2. 4 II. 8. 4. 6 Sen. Rom. ii. 34 f. 
 
 6 Rom. Forsch. i. 233 f.; 247 f.; cf. Genz, Patr. Rom, 70. On the patrum 
 auctoritas, see p. 235 below. 
 
32 THE ROMAN ASSEMBLIES 
 
 clusively patrician through the whole republican period. 1 This 
 idea, however, must be dismissed for the following reasons : 
 (i) Our sources agree that in the early republic the plebe- 
 ians and clients continued to vote in the curiate assembly. 2 
 (2) The plebeians were in the curiae in 208 B.C., when the 
 first curio maximus was chosen from the plebs. 3 (3) In the time 
 of Cicero thirty plebeian * lictors represented the comitia curiata, 
 and gave the votes. 8 (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. 6 (6) The confirmation 
 by the curiae (lex de imperio) of elections in the centuriate 
 assembly was conceived as a second vote of the community. 7 
 (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. 8 
 
 Of the arguments in favor of Niebuhr's hypothesis either 
 added by Schwegler 9 or brought by him into greater promi- 
 nence, one only demands attention. He reasons that if the 
 
 1 E.g. Rom. Gesch. ii. 359; iii. 168; Eng. ii. 147; iii. 73: "the common council 
 of the patres — the curies." 
 
 a Cic. Frag. A. vii. 48; Livy ii. 56, especially § 3; Dion. Hal. vi. 89. I; ix. 41. 
 » Livy xxvii. 8. 3. « Mommsen, Rom. Forsch. i. 148. 
 
 6 Cic. Leg. Agr. ii. 12. 31. » Cic. Dom. 14. 38; Livy vi. 41. 10. 
 
 7 P. 185 below; cf. Mommsen, Rom. Forsch. i. 147 f. 
 
 8 In the face of all evidence to the contrary two or three scholars persist in main- 
 taining essentially the opinion of Niebuhr that through the republic the curiae con- 
 tinued patrician. Herzog, Rom. Staatsvcrf. i. 98 f., 108, 1014, n. 2, imagines that 
 from the beginning the clients belonged to the curia in its administrative capacity, 
 shared in its sacra, attended its meetings, but did not vote. The plebs, however, 
 were not even passive members. His reasons do not deserve mention. Vassis 
 'Ytopatuv noXireio ^ ^ocriXeiKy^ij K al i) itevBtpa (Athens, 1903), also excludes the 
 commons from the curiate assembly throughout its history. The fancies of Hoffmann 
 Pair, undplcb. Curien, need not detain us. 
 
 9 Rom. Gesch. i. 623 f. 
 
SOCIAL COMPOSITION OF THE POPULUS 33 
 
 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 sup- 
 port 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. 1 The Homeric Greek assembly included all free- 
 men, who, however, had little to do with the government in 
 that period, and still less under the aristocracy which followed. 2 
 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. 8 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.* 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 consti- 
 tutional development. 
 
 With Schwegler, who grants however reluctantly that the 
 commons were received into the curiae before 208, 6 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, 6 
 
 1 Cf. p. 152, 172. ' P. 173 H., 345. 6 Rom. Gesch. i. 625, n. 3. 
 
 2 Cf. p. 170, 172. 4 P. 75, 96, 2og. • Horn. Forsch. i. 140 f. 
 
 D 
 
34 THE ROMAN ASSEMBLIES 
 
 who more than any one else has made it clear that, so far 
 back as our sources reach, the populus comprised both patri- 
 cians and commons, nevertheless assumes that the latter were 
 originally outside the populus but were admitted no later than 
 the beginning of the republic. 1 In his reconstruction of the prim- 
 itive state he supposes that the citizens were all patres, in so far 
 as they, and they alone, could be fathers; or adjectively patri- 
 cii, in so far as they, and they alone, had fathers. 2 Added to 
 the citizens and their slaves was a class of persons termed cli- 
 ents, half way between freedom and slavery — a class made up 
 from various origins but chiefly by the conquest of neighbors. 3 - 
 These clients belonged, as dependents of the gentes, to the 
 curiae, but had no vote in the assembly. 4 Later the plebs were: 
 formed from the clients as the bond which united the latter with 
 their patrons relaxed. 5 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. 6 
 
 Although Mommsen knows well the weakness of the evidence, 
 offered by earlier writers, he adopts the hypothesis of an origi- 
 nal 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 : 
 
 (i) The lack of right to the auspicia 7 and to the imperium 8 
 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. 9 The auspicia, as Soltau 10 
 
 1 Rom. Forsch. i. 269; Rom. Staatsr. iii. 92. Clason, Krit. Erbrt. uber den ram- 
 Staat, 12, supposes they were admitted by the Ogulnian law, in 300. Genz, Pair. 
 Rom, 41, 62, places their admission not earlier than the institution of the Servian. 
 tribes and not later than the decemvirate, greatly preferring the latter date. 
 
 2 Rom. Staatsr. iii. 13; Abriss, 5. s Rom. Staatsr. iii. 54 f. 
 4 Ibid. iii. 91. 6 Ibid. iii. 63. « j^M. iii. 67 f. 
 
 7 Ibid. i. 91, n. I; cf. Lange, Rom. Alt. i. 261 f. Reference here is only to> 
 the auspicia publica of the magistrates. It is established below (p. 101 ff.) that: 
 from the beginning the plebeians had a right to private auspices. 
 
 8 Rom. Staatsr. iii. 77. » Cf. Topffer, Attischc Genealogie, 177.. 
 
 10 Altrbm. Volksversamml. 93. 
 
SOCIAL COMPOSITION OF THE POPULUS 35 
 
 has noticed, belonged to the ius honorum, as did also the im- 
 perium; 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. 1 
 
 With the same kind of reasoning we could conclude that be- 
 cause 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. 2 That the Roman army before Servius was similarly com- 
 posed 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. 8 
 
 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 pa- 
 tricians alone enjoyed the honors, privileges, and influence usu- 
 ally 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. 4 
 
 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 6 makes it clear that these patres were senators. 
 
 1 Rom. Staatsr. iii. 109. 8 Rom. Forsch. i. 106 f. and n. 80. 
 
 2 P. 69. 4 Rom. Staatsr. iii. 13. 
 
 6 Rep. ii. 20. 35 : " Duplicavit ilium pristinum patrum numerum et antiquos patres 
 maiorum gentium appellavit, quos priores sententiam rogabat, a se adscitos mino- 
 rum." The connection shows that Cicero is speaking of two classes of senators dis- 
 tinguished by the rank of the gentes from which they respectively came. 
 
36 THE ROMAN ASSEMBLIES 
 
 The phrase means senators from, or belonging to, the greater 
 or lesser gentes. Furthermore it has been proved (i) that the 
 patricians were not the only gentiles, 1 (2) that the curia, and 
 hence the state, was not an aggregation of gentes. 2 
 
 (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. 3 
 
 For (a) Mommsen cites those passages by which it has been 
 shown 4 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 re- 
 gards (b) it has been sufficiently proved 5 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 6 into the argument. Pellegrino, 7 however, identifies the 
 refugees at that place with the entire plebeian body. As the 
 asylum was not an Italian but a Greek institution, 8 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. 9 Similar calumnies against other peoples were 
 
 1 P. 28 f. a P. II f. 8 Rom. Staatsr. iii. 14. * P. 17 f. and notes. 6 P. 20 f. 
 
 6 For the sources, see Schwegler, Rom. GescA. i. 459 f.; Stengel, in Pauly-Wis- 
 sowa, Rcal-Encycl. ii. 1885. 
 
 7 Andeutungen uber dm urspr. Religionsunterschied der rom. Pair, und Pleb. I f. 
 
 8 Cf. Livy xxxv. 51. 2; Serv. in Aen. ii. 761. Schwegler, ibid. 464-8, who insists 
 on this fact, shows clearly that no historical value attaches to the myth; see also 
 Pais, Storia di Roma, I. i. 218, 11. I. 
 
 9 Pais, ibid. 21 7 ff. Dionysius, i. 4. 2 f., expressly states that this story is a Greek 
 falsification. 
 
SOCIAL COMPOSITION OF THE POPULUS 37 
 
 concocted by their Greek enemies. 1 Notwithstanding the fact 
 that the story had not even a kernel of historical truth the 
 Romans accepted it with more or less modification 2 and used it 
 to some extent for partisan objects. 3 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. 4 We are war- 
 ranted 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 follow- 
 ing 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. 5 (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 com- 
 pared with the patricians — before they became " the multitude." 
 (6) It is contradicted by everything we know of Rome's attitude 
 
 1 See the examples collected by Pais, ibid. 
 
 2 Cf. Livy i. 8. 5. 8 Cf. ibid. ii. I. 4. 
 
 * Dionysius, i. 85. 3, states that the colonists from Alba were mostly plebeians, but 
 that a considerable number of the highest nobility accompanied them. It is a sig- 
 nificant fact, however, that no patrician family is known to have derived its origin 
 from this earliest colony. Those who claimed Alban and Trojan descent preferred 
 to connect their admission to citizenship with the Roman annexation of Alba Longa, 
 e.g. the Tullii, Servilii, Quinctii, Geganii, Curiatii, and Cloelii; Livy i. 30. 2. On the 
 Alban and Sabine origin of most of the nobility, Livy iv. 4. 7. In so far as the local 
 cognomina are indicative of origin (cf. Willems, Sen. Horn, i. 11 ff.), they point to a 
 diversity of foreign connections. The Tarquinian gens, which in later time was 
 thought of as patrician, came from Etruria, ultimately from Greece. The Aemilii 
 were Greek (Plut Attn. I ; Fest. ep. 23) or Sabine (Plut. Num. 8) or Oscan (Fest. 
 130. 1). » Cf. p. 31 above. For details, see Pol. Set. Quart, xxii. 679 ff. 
 
38 THE ROMAN ASSEMBLIES 
 
 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 illiber- 
 ality in this respect. Down to 353 the citizenship thus freely 
 extended included the right to vote. 1 (7) It assumes the exist- 
 ence 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. 2 
 
 III. The Comparative-Sociological View 
 
 As social classes belong to all society, 3 they cannot be ex- 
 plained by the peculiar conditions of any one community. The 
 
 1 That Caere was the first community to receive the civitas sine suffragio may 
 justly be inferred from the expression " Caerite franchise," which designates this kind 
 of limited citizenship (cf. p. 62). The general fact stated in (6) is further confirmed 
 by the law which granted the right of extending the pomerium to those magistrates 
 only who had acquired new territory for Rome ; Gell. xiii. 14. 3 ; Tacitus, Ann. 
 xii. 23. 
 
 2 Since the publication of the Staatsrecht, writers have made slight modifications or 
 extensions of the conventional theory. Greenidge, in Poste, Gaii Inslitutiones, xix, 
 suggests that the dual forms in Roman law may have as their basis a racial distinction 
 between the patricians and the plebeians. A serious objection to this kind of reason- 
 ing is that if we are on the lookout for dualities, trinities, and the like, we shall find 
 them in abundance everywhere. All sorts of theories as to the racial connections 
 of the two social classes have been proposed. Zoller, Latium und Rom, 23 ft., 
 supposes that the patricians were Sabine and the plebeians Latin. Ridgeway, Early 
 Age of Greece, i. 257, holds that the plebeians were Ligurians, whereas Conway, in 
 Riv. di Stor. ant. vii (1903). 422-4, prefers to consider them Volscians. These no- 
 tions are equally worthless. Undoubtedly race is a potent factor in history ; but 
 Gumplowicz, Rassenkampf (1883), has killed the theory by overwork. 
 
 Among the writers who have rejected the conventional view are Soltau, Altrom. 
 Volksversamml. (1880); Bernhoft, Rom. Konigsz. (1882); Pelham, Outlines of Roman 
 History (1893; reprint of his article on "Roman History," in the Encycl. Brit.); 
 Meyer, Gesch. d. Alt. ii (1893); Holzapfel, in Beitr. *. alt. Gesch. i (1902). 254. 
 
 8 Meyer, Gesch. d. Alt. ii. 80 ; Featherman, Social History of the Races of Man- 
 kind, ii. 408 ; Hellwald, Culturgeschichte, i. 1 75 ; Barth, Philosophic der Geschichte, 
 i. 382. It would be practicable by the citation of authorities to prove the existence 
 of such distinctions in nearly every community, present or past, whose social condi- 
 tion is sufficiently known. 
 
SOCIAL COMPOSITION OF THE POPULUS 39 
 
 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, 1 which differentiate the population of a 
 community into leaders and followers. 2 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." 3 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.* 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; 6 but in any case wealth and influence inherited through 
 
 1 Giddings, Principles of Sociology, 124; Tarde, Laws of Imitation, 233 f. ; 
 Fairbanks, Introduction to Sociology, 158 ; Grave, L'individu et la societe, 23 ; 
 Funck-Brentano, Civilisation et ses lois, 71 f.; Caspari, Urgeschichte der Mensch- 
 heit, i. 125 f.; Hellwald, ibid. i. 175, 177; Ross, Social Control, 80. 
 
 2 Giddings, ibid. 262 ; Ammon, Gesellschaftsordnung, 133 f.; Cherbuliez, Simples 
 notions de Vordre social a Pusage de tout le monde, 38 f. ; Dechesne, Conception du 
 droit, 36 ; Grave, ibid. 23 f. ; Caspari, ibid. i. 133 f. ; Harris, Civilization considered 
 as a Science, 211 ; Lepelletier de la Sarthe, Systeme sociale, i. 329 ; Mismer, Prin- 
 cipes sociologiques, 63 f. ; Rossbach, Geschichte der Gesellschaft, i. 13 f.; Schurtz, 
 Urgeschichte der Kultur, 385 ; Hittell, Mankind in Ancient Times, i. 228 f. ; 
 Maine, Early History of Institutions, 130 ; Seebohm, Tribal System in Wales, 139; 
 Post, A. H., Anfdnge des Staats- und Rechtslebens, 150 f. 
 
 * Giddings, ibid. 262 ; cf. Arnd, Die materiellen Grundlagen . . . der europaischen 
 Kultur, 444 f. ; Frohschammer, Organisation und Kultur der mensch. Gesellschaft, 
 84 f. ; Bastian, Rechtsverhaltnisse bei verschiedenen Volkern der Erde, 20 f. ; Spencer, 
 Principles of Sociology, ii. 333, 335. 
 
 4 Frazer, Early Hist, of the Kingship ; Spencer, ibid. ii. 338 f. ; cf. for the 
 Malays, Skeat and Blagden, Pagan Races of the Malay Peninsula, 499. 
 
 6 Cf. Rubino, RSm. Verf. 183 ; Spencer, ibid. ii. 334 f. ; Seebohm, Tribal System 
 in Wales, 72. 
 
4 o THE ROMAN ASSEMBLIES 
 
 several generations made nobility. 1 Primarily grounded on 
 ability, wealth, and renown, this preeminence was often height- 
 ened by a claim to divine lineage or other close connection with 
 the gods. 2 
 
 There was evidently a stage of development — before the 
 association of the nobles into a class — in which chieftains alone 
 held preeminence. This condition is common in primitive so- 
 ciety, as among the American Indians. 3 Also among the Ger- 
 mans, 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." 4 From Brehon 
 law we infer that the Irish lords were individually heads of 
 their several groups of kinsmen or of vassals ; 6 and in Wales 
 the nobles were a hierarchy of chieftains. 6 As soon as leader- 
 ship became hereditary there arose noble families, in which the 
 younger members were often sub-chieftains; 7 and finally 
 through intermarriage among these families, as well as through 
 the discovery of common interests, the nobles associated them- 
 selves into a class. 
 
 Among the ancient Germans, 8 the Greeks of the Homeric 
 
 1 Aristotle, Politics, 1294, a 21 ; Giddings, Principles of Sociology, 293 f.; Jenks, 
 History of Politics, 30 f. ; Grave, L'individu ct la societe, 25 ; Combes de Lestrade, 
 Aliments de sociologie, 185 ; Schurtz, Urgeschichte der Kultur, 148, 385 ; Feather- 
 man, Social History of the Races of Mankind, see index, s. Classes ; Hittell, Man- 
 kind in Ancient Times, i. 228 ; Maine, Early History of Institutions, 134 ; Ginnell, 
 Brehon Laws, 60 f. ; Farrand, Basis of American History, 114, 201 ; Bluntschli, 
 Theory of the State, 149. 
 
 3 Grave, ibid. 30 f. ; Combes de Lestrade, ibid. 184 f. ; Funck-Brentano, Civilisa- 
 tion et ses lois, 68 (.; Spencer, ibid. ii. 348 f.; Schurtz, ibid. 150 f.; Featherman, ibid, 
 ii. 128, 197 f., 311 ; Letourneau, Sociology, 480 {.; Bastian, Rechtsverh'dltnisse, 8 f. 
 
 8 Cf. Schurtz, ibid. 148; Farrand, ibid. 114,129,141. For the Malays, see 
 Skeat and Blagden, ibid. 494 ff. 
 
 4 Maine, ibid. 132. 
 
 6 Maine, ibid. ; Ginnell, Brehon Laws, 63 f., 93 f. 
 6 Seebohm, Tribal System in Wales, 134 f. 
 
 ' As in Wales ; Seebohm, ibid. 139 ; cf. the Inca grandees, who all claimed 
 descent from the founder of the monarchy ; Letourneau, Sociology, 479. 
 
 9 Tac. Germ. 13. 3: "Insignis nobilitas aut magna patrummerita principis digna- 
 tionem etiam adulescentulis adsignant." It is clear that the family of a youth who 
 receives an office or dignity because of the merits of his ancestors is coming near to 
 nobility. 
 
SOCIAL COMPOSITION OF THE POPULUS 41 
 
 age, 1 and in some early Italian states 2 certain families had be- 
 come 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. 3 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.* After " a certain number of generations " 
 he can no longer be distinguished from the blooded nobility. 6 
 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." 6 " 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." 7 In 
 the way just described many rose from the lower ranks to 
 nobility. In fact, eminent authorities assert that the inferior 
 
 1 A certain man of illegitimate birth, hence of inferior social standing, through 
 martial skill and daring becomes a leader of warriors, acquires wealth, marries the 
 daughter of a notable, "waxes dread and honorable" among his countrymen, who 
 elect him to a high military command by the side of their hereditary chief; the taint 
 of his birth is forgotten; Od., xiv. 199; cf. Bernhoft, Rom. Kbnigsz. 123. 
 
 2 Livy viii. 39. 12; x. 38. 7: " Nobilissimum quemque genere factisque," with 
 reference to the Samnites; some were nobles by birth, others by prowess; cf. 46. 4: 
 " Nobiles aliquot captivt clari suis patrumque factis ducti; " some of these captives 
 were noble through their own prowess, others through that of their ancestors. The 
 Samnite nobility was in the formative stage like that of the German nobility in the 
 time of Tacitus. The Yakonan of California are in this condition; Farrand, Basis 
 of American History, 129. 
 
 8 Maine, Early Hist, of Inst. 135 f.; Giddings, Principles of Sociology, 294 f. 
 
 4 Cf. Giddings, ibid. 6 Maine, ibid. 136. 6 Laws of Athelstan. 
 
 7 Giddings, Principles of Sociology, 296; cf. Maine, Early Hist, of Inst. 141. Thus 
 in the time of Tacitus the German youth of common blood who entered the comitatus 
 of a chief had a fair opportunity to become noble; Germ. 13. 3-5; 14. 1 f. Among 
 the Danes, too, some noble families were once peasant; Maine, ibid. 135. 
 
42 THE ROMAN ASSEMBLIES 
 
 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. 1 
 
 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 form- 
 ing by the side of the old. Social distinctions were well devel- 
 oped 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." 2 This was true of Sparta. 
 In her " the conquerors nevertheless, notwithstanding great dif- 
 ferences among themselves, remain sharply separated in social 
 function from the conquered . . . The conquerors became a 
 religious, military, and political class, and the conquered an in- 
 dustrial class." 3 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 exclu- 
 sive. 4 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. 6 We find the same mingling of conquerors and 
 conquered in varying degrees in ancient Ireland, 6 in England 
 under the Normans, 7 and throughout the Roman empire in the 
 
 1 Brunner, Deutsche Rechtsgeschichte, i. 235 f., 252; Maine, ibid. 138; Ammon, 
 Gcselhchaftsordrmng, 135; Schurtz, Urgeschichte der Kultur, 148 f. ; Bluntschli, 
 Theory of the State, 131, 155; Tarde, Laws of Imitation, 237. 
 
 2 Giddings, Principles of Sociology, 315; cf. Combes de Lestrade, Elements de 
 sociologie, 185 ; Rossbach, Gesck. der Gesellsch. i. 14. A nobility formed purely by con- 
 quest, if such indeed exists, must be rare, and can hardly be lasting ; Schurtz, 
 Urgesch. der Kul. 149. 
 
 8 Giddings, ibid. 315; cf. Grave, L'individu et la socieie, 32. 
 4 Strabo viii. 4. 4, p. 364; Aristotle, Politics, 1270, a 34. 
 6 Schurtz, Urgesch. der Kult. 165. 
 
 6 Ginnell, Brehon Laws, 145. 
 
 7 Bluntschli, Theory of the State, 142; Freeman, Norman Conquest, iv. II. There 
 were nobles both in England and in Normandy before the conquest. After the 
 battle of Senlac most of the English nobles submitted to William, and were allowed to 
 
SOCIAL COMPOSITION OF THE POPULUS 43 
 
 period of Germanic settlements. 1 It becomes doubtful, there- 
 fore, whether a nobility was ever formed purely by the super- 
 position 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 hazard- 
 ous to resort to the race theory in explanation ; for such a con- 
 dition could be produced in the course of generations by 
 different modes of life, education, nurture, and marriage regula- 
 tions of the nobles and commons respectively. 2 
 
 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 conquer- 
 ors and conquered, like that which we find in Laconia. We are 
 forbidden to identify the plebs with the conquered and the pa- 
 tricians with the conquerors by many considerations mentioned 
 above — for instance, by tradition, 3 by the derivation of several 
 patrician gentes from various foreign states, 4 by the fewness of 
 the patricians, 5 and by the fact that the latter show no differentia- 
 tions 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 popula- 
 tions 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 
 
 redeem their lands; Freeman, ibid. iv. 13 f., 36 f. It was only in punishment for 
 later rebellion that they lost their holdings, and some English thanes were never 
 displaced; cf. Powell, in Traill, Social England,\. 240. 
 
 1 The most violent and oppressive Germanic invaders are supposed to have been 
 the Vandals, and yet they doubtless retained for the administration of the government 
 the trained Roman officials; Hodgkin, Italy and her Invaders, ii. 263. The Ostro- 
 goths were more liberal in their treatment of the Romans (ibid. iv. 250, 271, 282), 
 and the Franks still more liberal; Brunner, Deutsche Rechtsgesch. ii. 202. 
 
 2 Featherman, Social History of the Races of Mankind, ii. 354 ; Tarde, Laws of 
 Imitation, 238, n. I, 239; Hellwald, Kulturgesch. i. 175 f. ; Schurtz, Urgesch.der Kull. 
 149; cf. Demolins, Comment la route cree le type social. 
 
 8 P. 16. " P. 37. »• 4- 
 
 6 P. 31; Pol. Sci. Quart, xxii (1907). 679 H. 
 
44 THE ROMAN ASSEMBLIES 
 
 admitted to citizenship, to the tribes and the curiae, and their 
 nobles were granted the patriciate. 1 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 corrobo- 
 rate 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 
 
 1 The idea that the primitive community is essentially illiberal with its membership 
 is erroneous. For the mingling of conquerors and conquered, see p. 42 f. and notes. 
 On the ethnic heterogeneity of states in general, see Gumplowicz, Rassenkampf, 181. 
 The laws of Solon granted citizenship to alien residents who were in perpetual exile 
 from their own country, or who had settled with their families in Attica with a view 
 to plying their trade; Plut. Sol. 24. Under his laws, too, a valid marriage could be 
 contracted between an Athenian and an alien; Hdt. vi. 130. The Athenians, like 
 the Romans, believed that many of their noble families were of foreign origin. In 
 Ireland " strangers settling in the district, conducting themselves well, and inter- 
 marrying with the clan, were after a few generations indistinguishable from it ; " 
 Ginnell, Brehon Laws, 103. Nearly the same rule holds for South Wales; Seebohm, 
 Tribal System in Wales, 131. To the Germans before their settlement within the 
 empire the idea of an exclusive community must have been foreign; for as yet the 
 individual was but loosely attached to his tribe. Persons of many tribes were united 
 in the comitatus of a chief ; the two halves of a tribe often fought on opposite sides 
 in war; a tribe often chose its chief from another tribe. Intermarriage among the 
 tribes was common, even between Germans and Sarmatians. A single tribe often 
 split into several independent tribes, and conversely new tribes were formed of the 
 most diverse elements; Seeck, Geschichte des Untcrgangs der an tike n Welt, i. 209 
 with notes; Kaufmann, Die Germanen der Urzeit, 136 f. Under these circumstances 
 the primitive German community cannot be described as exclusive. In like manner 
 our sources unanimously testify to the liberality of early Rome in granting the 
 citizenship to strangers. It is no longer possible to oppose to this authority the 
 objection that such generosity does not accord with primitive conditions. 
 
SOCIAL COMPOSITION OF THE POPULUS 45 
 
 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., Romische Geschichte, i. 321 ff. ; 
 English, 158 ff. ; Schwegler, A., Romische Geschichte, I. bk. xiv; Wig- 
 ger, J., Verteidigung der nieburschen Ansicht iiber den Ursprung der rom. 
 Plebs ; Peter, C, Geschichte Roms, i. 31^3 ; Verfassungsgeschichte der rom. 
 Republik ; Studien zur rom. Geschichte mit besonderer Beziehung auf Th. 
 Mommsen ; Ihne, W., History of Rome, i. 109 ff. ; Early Rome, ch. ix ; Asy- 
 lum of Romulus, in Classical Museum, iii (1846). 190-3 ; Forschungen auf 
 dem Gebiete der rom. Verfassungsgeschichte (also translated into English by 
 Heywood) ; Lange, L., Rom. Alt. i. 414 ff., and see indices s. Patres, Plebs, 
 etc.; Mommsen, Th., History of Rome, bk. I. chs. v, vi; Rom. Forschungen, 
 i. 131-284; Rom. Staatsrecht, iii. 127 ff., and see indices s. Patres, Plebs, etc. ; 
 Abriss d. rom. Staatsreckts, 3 ff. ; Herzog, E., Geschichte und System der 
 rom. Staatsverfassung, i. 32 ff. ; Meyer, E., Geschichte des AUertums, ii. 515-7, 
 521 f. ; v. 141-3 ; Plebs, in Handworterb. d. Staatsviiss. vi. 98-106; Niese, B., 
 Grundriss der rom. Geschichte, 36 f. ; Ampere, J. J., Histoire Romaine a Rome, 
 i. 440 ff.; ii. 15 ff. ; Zoller, M., Laiium und Rom, 163; Ridgeway, W., Early 
 Age of Greece, i. 254 ff. ; Oberziner, G., Origine delta plebe Romana ; Conway, 
 R. S., / due strati di populazimie Indo-Europea del Lazio e deW Italia antica, 
 in Rivista di storia antica, vii (1903). 422-4 ; Hullmann, K. D., Urspriinge 
 der rom. Verfassung durch Vergleichungen erlautert ; Mispoulet, J. B., Insti- 
 tutions politiques des Remains, i. 14 ff. ; Greenidge, A. H. J., Roman Public 
 Life, 4ff. ; Abbott, F. F., Roman Political Institutions, 6ff. ; Naudet, M., De 
 la noblesse et des recompenses d^honneur chez les Romains ; Hoffmann, Pa- 
 tricische und plebeiische Curien ; Pelham, H., Roman Curiae, in (English) 
 Journal of Philology, ix (1880). 266-79; Soltau, W., Altrom. Volksversamml. 
 58 ff., 625 ff. ; Bernhoft, F., Staat und Recht der rom. Kbnigsz. 145 f. ; Genz, 
 H., Das patricische Rom ; Clason, D. O., Kritische Erorterungen iiber den rom. 
 Staat; Fustel de Coulanges, Ancient City,bk. iv; Pellegrino, D., Andeutungen 
 iiber den ursprunglichen Religionsunterschied der rom. Patricier und Plebeier ; 
 Hennebert, A., Histoire de la lutte entre les patriciens et les plebeiens a Rome; 
 Bloch, L., Die standischen und sozialen Kdmpfe in der rom. Republik ; 
 Wallinder, De statu plebeiorum romanorum ante primam in montem sacrum 
 secessionem quaestiones; Neumann, K. J., Grundherrschaft der rom. Republik, 
 Bauernbefreiung und Entstehung der servianischen Verfassung; Holzapfel, 
 L., Die drei altesten rbmischen Tribus, in Beitrage zur alten Geschichte, 
 i (1902). 228-55; Heydenreich, E., Livius und die rom. Plebs, in Samml. 
 gemeinverstandlicher wissenschaftlicher Vortrage, xvii (1882). 581-628 ; 
 Christensen, H., Die ursprungliche 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; Kohm, 
 J., Altlateinische Forschungen, ch. i ; Brocker, L. O., Untersuchungen iiber die 
 
46 THE ROMAN ASSEMBLIES 
 
 Glaubwurdigkeit der altrom. 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 repro- 
 duction of this article) ; Some Problems connected with the Roman Gens, ibid, 
 xxii (1907). 663-92. 
 
 II. Comparative View: Achelis, Th., Moderne Volkerkunde, deren Ent- 
 wickelung und Aufgaben, (Stuttgart, 1896) 406 ff. ; Ammon, O., Die Gesell- 
 schaftsordnung und ihre natiirlichen Grundlagen, (Jena, 1895) Teili ; D'Arbois 
 de Jubainville, La civilisation des Celtes et celle de fepopee Homerique, (Paris, 
 1899) ch. ii; Arnd, K., Die materiellen Grundlagen und sitt lichen Forde- 
 rwigen der europdischen Kultur, (Stuttgart, 1835) 444 f. ; Barth, P., Die Phi- 
 losophic der Geschichte als Sociologie, i. (Leipzig, 1897) 382 ; Bastion, A., Der 
 Mensch in der Geschichte, iii. (Leipzig, i860) 323-38 ; Allerlei aus Volks- 
 und Menschenkunde, ii. (Berlin, 1888) 138-54; Rechtsverhaltnisse bei ver- 
 schiedenen Volkern 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 probltme de la vie: Essai de sociologie genirale, (Paris, 1901) 
 95 ; Brunner, H., Grundziige der deutschen Rechtsgeschichte, i (Leipzig, 
 1901) ; Biicher, C, Industrial Evolution, ch. ix; Buchholz, E., Homerische 
 Realien, II. bk. i (Leipzig, 1881) ; Caspari, O., Die Urgeschichte der Mensch- 
 heit, I. bk. ii. ch. 3 (Leipzig, 1877) ; Cherbuliez, A. E., Simples notions de 
 Vordre social It Vusage de tout le monde, (Paris, 1881) ch. vi ; Combes de Les- 
 trade, Elements de sociologie, (Paris, 1896) bk. vi ; Cooley, C. H., Human 
 Nature and the Social Order, (New York, 1902) ch. ix (analysis of leader- 
 ship) ; Craig, J., Elements of Political Science, i. (Edinburgh, 1814) 183-95; 
 Duchesne, L., La conception du droit et les idees nouvelles, (Paris, 1902) 36; 
 Demolins, E., Comment la route crte 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, (Lon- 
 don, 1894) 291-6; Frazer, J. G., Lectures on the Early History of the King- 
 ship (New York, 1905) ; Freeman, E. A., History of the Norman Conquest of 
 England, iv (New York, 1873) i Frohschammer, ]., Ueber die Organisation 
 und Cultur der Menschlichen Gesellschaft, (Munich, 1885) 84 f . ; Funck- 
 Brentano, Th., Civilisation et ses his, morale sociale, (Paris, 1876) chs. 
 v-viii ; Fustel de Coulanges, Ancient City, bk. iv ; De IHnkgaliU 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., LHndividu et la societt, (3d ed. Paris, 1897) ch. ii; Gumplowicz, L., Ras- 
 senkampf (Innsbruck, 1883); Harris, G., Civilization considered as a Science, 
 (new ed. New York, 1873) ch. vii ; Hellwald, Fr. von, Culturgeschichte in 
 ihrer natiirlichen 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. ; 
 "• 37> 7 2 ! Hodgkin, Italy and her Invaders, (2d ed. Oxford, 1892, 1896) ii, 
 
SOCIAL COMPOSITION OF THE POPULUS 
 
 47 
 
 iii; Jenks, E., History of Politics (London, 1900); Kaufmann, G., Die Ger- 
 manen der Urzeit (Leipzig, 1880) ; Krauss, F. S., Sitte und Brauch der S'ud- 
 slaven (Vienna, 1885) ; Lepelletier de la Sarthe, Du systeme social, ses ap- 
 plications pratiques d Vindividu, a lafamille, a la sociitt, (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. ; Muller-Deecke, Die Etrusker, 2 vols. (Stuttgart, 1877) i 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; Schroder, R., Lehrbuch der deutschen Rechtsge- 
 schichte (4th ed. Leipzig, 1902) ; Schurtz, H., Urgeschichte der Kultur, (Leip- 
 zig, 1900) ch. ii; Seebohm, F., Tribal System in Wales (New York, 1895); 
 Tribal Custom in Anglo-Saxon Law (New York, 1902) ; Seeck, O., Ge- 
 schichte 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., Anthropologic der JVaturvolker, iii (Leipzig, i860) 126-67; iii. 
 ( (i862) 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." 1 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. 2 The land was dis- 
 tributed 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 owner- 
 ship of the public domain. 3 
 
 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 
 
 1 Gaius i. 120 f. 
 
 2 Mommsen's theory of gentile ownership, adopted by Kubitschek, in Pauly-Wis- 
 sowa, Real-Encycl. i. 790, depends upon his view that the gens was as old as the 
 state ; in his opinion it was originally stronger but gradually weakened, whereas the 
 state went through the opposite process ; Rom Staatsr. iii. 25. But if, as I have else- 
 where pointed out (Pol. Set. Quart, xxii, 685 ff.), the gens developed from the family 
 during the decline of the kingship and the rise of aristocracy, the theory of a primi- 
 tive gentile ownership falls to the ground. 
 
 8 We are not to think of the state as granting a certain district to the tribe, which 
 then parcelled it among the component curiae, etc., for this reason that the tribes and 
 the curiae did not themselves possess common lands. Rather the state divided a 
 given district among the families which were already included, or which it wished to 
 include, in a given curia or tribe. In this way the later tribes were formed in his- 
 torical time, and in this way the Claudian tribe was originally constituted ; Livy ii. 
 16. 4 f. ; cf. Plut. Popl. 21. When therefore Dionysius, ii. 7. 4, states that Romulus 
 divided the land into thirty lots and assigned a lot to each of the thirty curiae, he 
 means, if he correctly understands the matter, that land was assigned not to the curia, 
 as a whole but to the families which composed the curia, unless indeed the curiae 
 once had a right of landholding not possessed in historical time. 
 
 48 
 
THE THIRTY-FIVE TRIBES 49 
 
 ownership existed in Rome from her foundation as well as in her 
 earliest colonies — a view confirmed by the comparative study 
 of language. 1 Each family, they assume, held two iugera — the 
 heredium 2 — or we may more correctly say, at least two iugera. 3 
 This small lot has generally been explained* 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. 8 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. 6 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 ; 7 and in the early 
 colonies the bina iugera were granted on the same aristocratic 
 principle. If this is the true explanation of heredium, the 
 
 1 Christ, W., in Sitzt. d. Berl. Akad. d. Wiss. 1906. 207. 
 
 a In the Twelve Tables heredium has the meaning of hortus, "garden ; " Pliny, 
 N.N. xix. 4. 50. It was a praedium parvulum consisting of two iugera; Fest. ep. 99. 
 
 * In the earliest colonies this was the amount assigned to each man ; cf. Livy iv. 
 47. 6 (Labici) ; vi. 16. 6 (Satricum); viii. 21. 11 (Tarracina, founded 329). The 
 first two are not so distinctly historical as the third; Mommsen, Rom. Staatsr. iii. 24, n. 
 I. Supposing Rome to have been a colony, the historians infer that Romulus made 
 a similar distribution among its earliest settlers ; cf. Varro, R. R. i. 10. 2 ; Pliny, 
 JV. H. xviii. 2. 7; Fest. ep. 53 ; Juvenal xiv. 163 f.; Siculus Flaccus 153; Livy vi. 
 36. 11; Plut. Popl. 21; Columella v. 1. 9 ; Nissen, Ital. Landtsk. ii. 507. 
 
 4 Cf. Mommsen, Rom. Staatsr. iii. 23 f. 
 
 6 Dion. Hal.iv.13. '! Varro, De vit.pop.rom. i, in Non. Marc. 43 ; Livyi.46.1. 
 
 6 Dion. Hal. v. 57. 3; Plut. Popl. 21. Moreover the division into the five classes 
 was based on unequal holdings. 
 
 7 Cf. Meyer, Gesch. d. Alt. ii. 518, n. 
 
 £ 
 
5 o THE ROMAN ASSEMBLIES 
 
 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 1 that the sixteen old- 
 est 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, 2 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 con- 
 sist 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 col- 
 lection 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 
 
 1 Rom. Staatsr. iii. 168. 
 
 2 Dion. Hal. iv. 14. 2 might refer to a condition in which land was still inalienable 
 and the right of changing residence restricted. 
 
THE THIRTY-FIVE TRIBES 51 
 
 he divided, as Fabius says, 1 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 2 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. 3 Those who rejected it generally agreed 
 that Servius divided the city into four tribes and the country 
 into districts, regiones, pagi.* Mommsen 5 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, 6 
 included the country as well as the city. According to this 
 hypothesis Alba 7 and Ostia, 8 for instance, belonged to the 
 Palatine tribe. His opinion has found wide acceptance. 9 
 
 1 The text followed is that of Jacoby. The reading represented by Jordan, Cato, 
 p. 8, is not satisfactory. We have no ground for impugning the statement of 
 Dionysius that Fabius actually called the country districts phylae, tribes. He may 
 have termed them at once /loipai, " regions," and phylae with perfect consistency ; 
 cf. Kubitschek, Rom. trib. or. 7, n. 34. 
 
 2 Rom. Gesck. i. 434-7 ; English, 205 f. 8 Verf. d. Sera. 95 f. 
 
 * Cf. Huschke, Vcrf. d. Serv. 72 ff., who supposed that the twenty-six rural re- 
 giones were in most respects like tribes, but contained only plebeians, who were 
 politically inferior to the city people ; see also Schwegler, Rom. Gesck. i. 736 f. 
 
 6 Rom. Tribus, followed by Grotefend, Imp. rom. trib. descr. 
 
 8 The supposition that there were originally but four rests upon those passages 
 which mention only that number in connection with Servius, as Livy 1. 43. 13 ; Fest. 
 ep. 368 ; (Aurel. Vict.) Vir. III. 7. 7 ; the discussion of the four city tribes as 
 though they were the only Servian tribes by Dionysius (iv. 14. 1), whereas in the 
 next chapter he describes those also of the country ; and the designation of the 
 rural districts as regiones rather than tribes by Varro, De vit. pop. rom. i, in Non. 
 Marc. 43 : " Et extra urbem in regiones xxvi agros viritim liberis attribuit." In L. L. 
 v. 56, however, he calls the country districts tribes. 7 Grotefend, ibid. 27. 
 
 8 Inferred from an obscure passage in Fest. 213. 13, and from inscriptions cited by 
 Mommsen, Rom. Trib. 215 ; Grotefend, ibid. 67. 
 
 9 Lange, Rom. Alt. i. 504 ; Herzog, Rom. Staatsverf. i. 39 and n. 2 ; Pelham, 
 Rom. Hist. 39; Soltau, Altrom. Volksversamml. 457 ff.j Greenidge, Rom. Pub. 
 Life, 67. 
 
52 THE ROMAN ASSEMBLIES 
 
 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. 1 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, 2 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 cen- 
 turiarum" — a document in the censors' office. Though as- 
 cribed to Servius Tullius as author, 3 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. 4 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 exist- 
 ing, 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 organiza- 
 tion 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 
 
 1 Rom. Staatsr. iii. 163 ff. Mommsen calls attention to epigraphic evidence, 
 cited more fully by Kubitschek, Imp. rom. trib. discr. 26 f., which assigns Ostia un- 
 mistakably to the Voturia tribus. He notices further that the same sort of evidence 
 which places Ostia in the Falatina would give Puteoli, Sutrium, Canusium, and Fundi 
 to the same city tribe, which is impossible. The error of including Alba and Ostia 
 in the Palatina is due to neglect of the fact that men excluded from the country 
 tribes were assigned to those of the city irrespective of domicile ; cf. Rom. Staatsr. 
 iii. 442 f., with notes. 
 
 2 Star, di Rom. I. i. 320, n. I, relying on Livy ix. 46. 14. 
 
 8 Fest. 246. 30 : " ' Pro censu classis iuniorum ' Ser. Tullius cum dixerit in de- 
 scriptione centuriarum ; " cf. 249. I ; Livy 1. 60. 4 ; iv. 4. 2. Cicero, Rep. ii. 22. 39, 
 writes discriptio, which Lange, Rom. Alt. i. 464, following BScheler, in Rhein. Mus. 
 xiii (1858). 598, accepts as the correct form. 
 
 1 P. 67. 
 
THE THIRTY-FIVE TRIBES 53 
 
 than the ascription to Servius of the whole centuriate organ- 
 ization 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. 1 Cato, who also 
 states the original number as thirty, without separating them 
 into rural and urban, 2 may have been influenced by Fabius, 
 though it is likely that he drew from the same source. Venno- 
 nius in making Servius the author of all thirty-five tribes but 
 slightly exceeds the absurdity of earlier writers. 3 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 dif- 
 ficulty 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 * — a superficial explanation in the true Varronian style. 5 
 Following Varro, however, later authorities generally speak of 
 the four urban tribes of Servius without mentioning those of 
 the country. 6 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. 7 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 8 is slightly troubled by the 
 
 1 Fabius Pictor, in Livy i. 44. 2. Altogether unnecessary therefore is Soltau's 
 supposition (Altrom. Volksvcrsamml. 458, n. 2), in itself improbable, that Fabius, 
 who wrote his annals in Greek, applied the word <j>v\ai incorrectly to the rural dis- 
 tricts. However that may be, Cato, as good an authority, spoke of these same dis- 
 tricts as tribes. If the number thirty was suggested to Fabius by the curiate organ- 
 ization (cf. Ullrich, Centuriatcomitien, 9), this circumstance would be no argument 
 against the existence of country tribes. On the strength of the army in the early re- 
 public, see p. 83. 
 
 8 P. 57. 8 Ibid. ; cf. Pais, Leg. of Rom. Hist. 140. 
 
 4 Just as he supposed the Suburana to have been evolved, name and all, from the 
 pagus Succusanus ; L. L. v. 48 ; cf. Fest. 302. 15 ; ep. 115. 
 
 6 Varro, De vit. pop. rom. i, in Non. Marc. 43 : " Et extra urbem in regiones xxvi 
 agros viritim liberis attribuit." As this statement does not rest upon an independent 
 source, but is merely an interpretation of Fabius and Cato, it has not the value which 
 Huschke (Virf. d. Serv. 72 f., 85 f.), Mommsen {Rem. Staatsr. iii. 168 f.), and 
 Meyer (in Hermes, xxx. 11) attach to it. 
 
 6 Cf. Livy i. 43. 13 ; Fest. ep. 368. 7 IV. 14. " Dion. Hal. iv. 15. 
 
54 THE ROMAN ASSEMBLIES 
 
 Varronian notion that these country districts were not so much 
 tribes as regiones, ird^oi, but which served all the purposes of 
 tribes including the taking of the census. 1 
 
 The various contradictory statements of the ancients regard- 
 ing 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. 2 A less certain indication of the admission of one 
 or possibly two tribes still earlier in the republic may have 
 existed ; 3 but here we reach the extreme limit of their knowl- 
 edge. 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* and 
 Meyer 6 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 6 that in the time 
 of Servius there was no private property in land outside of the 
 city. 7 If then we bear in mind two points which Mommsen has 
 himself established, (1) that the local tribe was an aggregate of 
 private estates, 8 (2) that the four urban tribes of Servius were 
 limited to the city, 9 we must conclude that in the time of Servius 
 the country estates were registered in rural tribes — in other 
 
 1 Dion. Hal. iv. 15. 4-6. His idea of a census of the country people he derived 
 from Lucius Piso (§ 5 f.) and from the censors' office through Fabius (22. 2) — a 
 fact which militates against Mommsen's theory that under Servius the country was 
 not yet ager privatus. 
 
 2 Livy vi. 5. 8. s P. 56. * Rom. Staatsr. iii. 162 ff. 
 6 Gesch. d. Alt. v. 135, 142 ; Hermes, xxx. 1 1 ; accepted by Neumann, Grundherrsch. 
 
 d. rbm. Rep. 14 f. ; Kornemann, in Klio, v. 90. 
 
 6 Rom. Staatsr. iii. 168. 
 
 7 P. 5°- 
 
 8 Rom. Staatsr. iii. 164 f. 
 
 9 Ibid. 163 and n. 3, in opposition to his former view and that of Grotefend ; cf. 
 p. 52. 
 
THE THIRTY-FIVE TRIBES 55 
 
 words that Servius instituted rural as well as urban tribes. 1 
 The view of Meyer that all the citizens lived in the city and 
 the dependents in the country 2 — 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, 3 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 equal- 
 ization of city and country.* 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 
 
 1 There might remain the conjecture that the regiones, or pagi, had the same 
 constitution as the tribes, but in that case the difference between pagus and tribus 
 would be one of name only, and would therefore be without historical significance. 
 Meyer's view (GescA. d. Alt. v. 135, 142) that the sixteen earliest country tribes 
 were not formed till after the institution of the plebeian tribunate depends partly on 
 his notion that the tribunes were originally the heads of the four urban tribes and 
 partly on the difference in the naming, the city tribes being named after localities 
 and the country tribes after gentes; cf. Hermes, xxx. II. The latter circumstance, 
 he asserts, establishes a later origin for the rural tribes. This argument is by no 
 means convincing ; the difference may have arisen from different conditions in 
 country and city; probably no urban ward had one patrician gens so predominant 
 as to give its name. If one kind of name is earlier than another, we should 
 naturally suppose the gentile name to be the earlier, and in that case we should 
 prefer the view of Pais, Stor. di Rom. I. i. 320, n. I ; Leg. of Rom. Hist. 140; cf. 
 above, p. 52, n. 2. 
 
 The patrician gentile name does not imply patrician domination any more than 
 the eupatrid name of an Attic deme implies eupatrid domination of that deme. 
 
 a Hermes, xxx. 12; followed by Neumann, Grundherrsch. d. rom. Rep. 13 f.; 
 Kornemann, in Klio, v. 90 f. 
 
 8 P. 6. 
 
 4 Among the scholars who insist that originally country as well as city was 
 divided into tribes are Miiller, J. J., in Philol. xxxiv (1876). 112 ff., and more 
 recently Kubitschek, De trib. or. (1882) ; Imp. rom. trib. discr. (1889), 2. Beloch, 
 Ital. Bund (1880), 28, begins with twenty-one tribes in 495, considering it impos- 
 sible to penetrate earlier conditions. Niese, Rom. Gesch. (1906). 38 and n. 3, more 
 positively assigns the creation of twenty-one tribes to that date. 
 
5 6 THE ROMAN ASSEMBLIES 
 
 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 un- 
 known. It was increased by the acquisition of territory. Pos- 
 sibly 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. 1 Wissowa 2 
 suggests that the immigration of the Claudian gens, the date of 
 which did not appear in the original tradition, 3 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.* It must have been the Clustumina. 5 We are certain that 
 
 1 Livy ii. 16. 5; cf. Dion. Hal. v. 40. 5. 
 
 2 In Pauly- Wissowa, Real- Encycl. iii. 2650. 
 
 s Some place the immigration in the time of Titus Tatius; Verg. Aen. vii. 706 ff.; 
 Suet. Tib. 1; Appian, Reg. 12; Mommsen, Rom. Forsc/i. i. 293; Rom. Staatsr. iii. 
 26, 11. I. That the earlier tradition assigned the event to the date mentioned in the 
 text is asserted by Miinzer, in Pauly-Wissowa, ibid. iii. 2663. 
 
 4 Livy ii. 21. 7 (495) : "Romae tribus una et xxx factae." This statement is not 
 that thirty-one tribes were instituted in that year, but that the number thirty-one 
 was reached, " factae " being copulative. If " una et xxx " is not a copyist's error, it 
 probably depends on the Fabian view that there were originally thirty tribes. At 
 all events it is inconsistent with the later statement (vi. 5. 8) that the number 
 twenty-five was not reached till 387. The epitomator of Livy accordingly corrected 
 the number to twenty-one, which most editors now write in the text itself. That 
 there were twenty-one tribes in 491, when Coriolanus was tried, is assumed too by 
 Dion. Hal. vii. 64. 6 : MiSs yip xal etxoiri tAte $v\wv owwv, ofs 17 \prj<pos dveSidr/, tos 
 &Tro\vo6(ras 0uXds %ax* v ° Mapxios ivvia.' &<tt el duo irpoff7J\0ov atfr$ $v\aL, 5ia rty 
 laoif/Tjtplav d.ire\i\vT* &v, tiiairep 6 vbpos ij^iov ("There being at the time twenty- 
 one tribes, to whom the vote was given, Marcius received the votes of nine tribes 
 for acquittal; so that, had two more tribes been favorable, he would have been 
 acquitted by an equality of votes, as the law required ") . This is not a mistake, as 
 many assume, but an understatement; cf. Muller, J. J., in Philol. xxxiv (1876). 
 nof. Meyer's explanation {Hermes, xxx. 10, n. 2), which makes 5i& rifv iao^iiiiplav 
 signify " owing to the equal value of the votes," is improbable and unnecessary. 
 
 6 For the form of the word, see Mommsen, Rom. Staatsr. iii. 171; Kubitschek, in 
 Pauly-Wissowa, Real-Encycl. iv. 117. Crustumeria had been taken four years 
 earlier (Livy ii. 19. 2, 499); so that a tribe of the same name could have been 
 admitted in 495. 
 
THE THIRTY-FIVE TRIBES 57 
 
 there were only twenty-one till 387, when four new tribes were 
 formed, bringing the number up to twenty-five. 1 The twenty- 
 sixth and twenty-seventh were admitted in 3S8, 2 the twenty- 
 eighth and twenty-ninth in 332, s the thirtieth and thirty-first in 
 318,* the thirty-second and thirty-third in 300, 6 the thirty- 
 fourth and thirty-fifth in 24 1. 6 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 7 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 8 as to the creation of two new tribes at about that 
 time. Velleius 9 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. 10 As the authority of Sisenna, if not that of Appian, 
 compels us to accept the fact of new tribes, it is better to inter- 
 
 1 Livy vi. 5. 8. * Ibid. 17. 11. 6 Ibid. a. 9. 14. 
 
 2 Ibid. viii. 15. 12. 4 Ibid. ix. 20. 6. * Ibid. ep. xix. 
 'AC. i. 49. 214: 'Pw/uuot lUv Si] roiaSe rois woitoX(tos oix is ris ir/jre xal 
 
 rpi&KovTa <pv\as, at rire fj<rav atrols, KariXel-av, Xva /it) tup apxa-loiv ir\hves 6vtcs ii> 
 TO.lt X'ftiwliu! tiriKparoTev, dXXi SenaTciovres airitprivav Irtpas, iv ofs tx&poThvovv 
 taxaroi. For SeKareiWret scholars have attempted to substitute diKa, Siica. lrirre, 
 Sim iveSpeiovres (Mendelssohn, App. ii. p. 53, n.). The meaning given in the 
 rendering offered above, though not found elsewhere, is possible. The passage has 
 reference to the Latins and faithful Italians admitted by the Julian law of 90. 
 
 8 III. 17 (Peter, Reliquiae, i. 280) : " L. Calpurnius Piso ex senati consulto duas 
 novas tribus." 
 
 9 II. 20. 2. 
 
 10 Kubitschek, Imp. rom. trib. discr. 2-6, tries to prove that the lex Iulia, 90, pro- 
 vided for the enrolment of the Latins and faithful allies in fifteen old rural tribes, 
 and that the lex Plautia Papiria, 89, assigned the more obstinate rebels to eight 
 other existing rural tribes. 
 
58 THE ROMAN ASSEMBLIES 
 
 pret Velleius in that light. 1 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 2 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 
 y among our sources ; and we have no reasonable ground for 
 doubting an increase, though we may remain uncertain as to the 
 number added. 3 
 
 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. 4 His plebiscite was annulled by the sen- 
 ate on the ground that it had been passed by violence ; 5 but the 
 provisions contained in it were afterward legalized by a sena- 
 tus consultum, and it was finally carried into effect by Cinna 
 as consul in 84.* This settlement of the question was ap- 
 proved by Sulla 7 for all the Italians excepting the Marsians 
 and the Paelignians, who were enrolled in one tribe — the 
 Sergia. 8 
 
 The nature of the tribes may be inferred from their object. 
 J The intention of the organizer was to introduce the Greek 
 / military system, comprising heavy and light infantry, in which 
 J the kind of service to be performed depended upon financial 
 
 / 1 Cf. Madvig, Rom. Staat. i. 26 f. * B. C. i. 53. 231. 
 
 8 That there was an increase is held by Mommsen, Rom. Staatsr. iii. 179, n. I; 
 Drumann-Grobe, Rom. Gesch. ii. 370. This view is favored by Long, Rom. Rep. ii. 
 199 f. Lange, Rom. Alt. iii. inf., compromises. 
 
 * Livy, ep. lxxvii; App. B. C. i. 55. 242; p. 404. 
 
 6 App. B. C. i. 59. 268; Cic. Phil. viii. 2. 7. 
 
 6 Veil. ii. 20. 2; Livy, ep. lxxxiv; App. B. C. i. 64. 287; Cic. ibid.; Exup. 4; 
 Mommsen, RSm. Staatsr. iii. 180,439. 
 
 7 Livy, ep. lxxxvi. 
 
 8 Mommsen, ibid. 180. 
 
THE THIRTY-FIVE TRIBES 59 
 
 I 
 
 / ability to provide equipments. 1 Seeing that a classification of 
 ■ citizens with respect to property was necessary for this purpose, 
 J Servius instituted the tribes as a basis for the census. That 
 they contained the ager privatus only is indicated by the exclu- 
 sion from them of the Capitoline and Aventine hills. 2 Their 
 local character is established by the concurrent testimony of 
 ancient writers. 3 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 individ- 
 uals 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 pro- 
 cess 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. 4 Thereafter the annexation of new terri- 
 tory tended more and more to render the tribes geographically in- 
 determinate. 5 The process was far advanced by the admission 
 (90-84) of the Latins and Italians with their lands to the exist- 
 ing tribes, 6 which were further enlarged in the imperial period 
 by the incorporation of provincial communities. 7 As consisting 
 of lands, though no longer necessarily adjacent, they were still 
 considered local. 8 
 
 The tribe was also a group of persons; in fact the word 
 applies far more frequently to persons than to territory. 9 During 
 
 1 P. 71. Their military purpose is recognized by Dion. Hal. iv. 14. 2, whereas 
 Livy, i. 43. 13, connects with them nothing but the collection of taxes. 
 
 2 Livy i. 43. 13; Pliny, N.H. xviii. 3. 13; Varro, L. L. v. 45; Mommsen, Rom. 
 Staalsr. iii. 166, n. I. 
 
 8 Dion. Hal. iv. 14. 2; Laelius Felix, in Gell. xv. 27. 5; Flaccus, in Gell. xvii. 7. 5. 
 In referring to the year 204 Livy, xxix. 37. 3 f., represents the tribes as districts. 
 The Pupinian tribe is often spoken of as a district, as by Varro, R. R. i. 9. 5. On 
 the local nature of the urban tribes, see Varro, L. L. v. 56; Livy i. 43. 13; Dion. 
 Hal. iv. 14. 1. 
 
 4 Kubitschek, Rom. trib. or. 24 f.; Imp. rom. trib. discr. 2. 
 
 6 Cf. Grotefend, Imp. rom. trib. descr. 7. 
 
 6 Kubitschek, Imp. rom. trib. discr. 2 f. 
 
 7 Cic. Flac. 32. 79 f. On the growth of the tribe, see Mommsen, Rom. Staatsr. iii. 
 175 ft.; Kubitschek, ibid. See also the maps in the latter work. 
 
 8 Flaccus, in Gell. xvii. 7. 5. A list was kept of the estates comprising a tribe; 
 Cic. ibid. 
 
 9 Cf. the admission of new tribes; Livy vi. 5. 8: "Tribus quattuor ex novis 
 civibus additae;" viii. 17. 11. 
 
60 THE ROMAN ASSEMBLIES 
 
 the early republic a considerable degree of harmony was main- 
 tained between the two aspects of the institution (i) possibly 
 by a restriction on the transfer of residence, 1 (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 land- 
 less, irrespective of domicile, in the urban tribes in 304, 2 but 
 continued to such a degree that a hundred years later the 
 rural voters generally still resided in their own tribes. 8 In 
 the last century of the republic the personal tribe, emanci- 
 pated from the local, depended solely on inheritance and the 
 will of the censors. 4 
 
 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. 5 Not all landowners were enrolled in 
 the tribes ; for Latin residents, 6 freedmen, 7 widows and or- 
 phans, 8 all of whom might possess land, lacked membership. 
 Those proprietors, too, were excluded whom the censors as- 
 signed to the aerarii as a punishment. Tribesmen were all 
 
 1 Dion. Hal. iv. 14. 2. 
 
 2 P. 64. 
 
 8 Livy xxix. 37. 3 f.; Soltau, Altrom. Volksversamml. 379, n. 3. 
 
 4 Somewhat different is the view of Mommsen, Rom. Trib. 2 f. ; Rom. Forsck. i. 
 151; Rom. Staatsr. ii. 402; controverted by Soltau, ibid. 384 ff. 
 
 6 The Romans had but two pursuits, agriculture and war, for the sedentary occu- 
 pations were given to slaves and strangers; Dion. Hal. ii. 28; ix. 25. 2. It was 
 assumed that those who were without property could take no interest in the state; 
 ibid. iv. 9. 3 f. ; Livy viii. 20. 4. 
 
 6 Cf. Mommsen, Rom. Staatsr. iii. 630. 
 
 7 It is well known too that freedmen were not regularly employed in military 
 service; Livy x. 21. 4; p. 354 f. below. 
 
 8 Widows and orphans were enrolled in a different list from that of the tribes, 
 and hence were not included in the statistics of population which have come down 
 to us; cf. Livy iii. 3. 9 ; ep. lix; Plut. Popl. 12; Mommsen, Rom. Staatsr. ii. 365 f., 
 401. Livy, ii. 56. 3, seems to exclude the clients. Only those lacked membership, 
 however, who possessed no land. Clients of free birth were as liable to military ser- 
 vice, according to their ratable property, as any other class of citizens; p. 22. 
 
THE THIRTY-FIVE TRIBES 61 
 
 the other landowners — adsidui 1 et locupletes 2 — together with 
 the male descendants of military age under their potestas. 3 
 
 Another object of the tribes, referred to Servius by our 
 sources, was the collection of taxes. 4 We know that they 
 afterward served this purpose; and the ancient writers, who 
 could have had no direct knowledge of the intentions of Ser- 
 vius 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. 5 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 sub- 
 ject 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 regu- 
 lar direct taxes on the citizens in general. Every man equipped 
 himself for war even after the introduction of the phalanx;* 
 
 1 Law of the Twelve Tables, in Gell. xvi. 10. 5; Scholl, Leg. Diud. Tab.Rcl. 116; 
 Brans, Font. iur. 18 f. ; Cic. Rose. Am. 18. 51; Att. iv. 8 a. 3; Fest. ep. 9; Charis. 
 p. 75 (Keil). The derivation from ab asse dando proposed by Aelius Stilo, though 
 absurd, was accepted by Cic. Rep. ii. 22. 40 ; Top. 2. 10; Fest. ep. 9 (as an alterna- 
 tive); Isid. Etym. x. 27; Quint. Inst. v. 10. 55. The derivation ab assidendo is, 
 nearer the truth; Vanicek, Griech.-lat. Worterb. 1012; Lange, Rom. Alt. i. 466; 
 Mommsen, Rom. Staatsr. iii. 237 f. ; Kubitschek, in Pauly-Wissowa, Real-Encycl. 
 i. 426. See also Varro, Z>« vit. pop. rom. i, in Non. Marc. 67; Gell. xix. 8. 15. 
 
 2 Cic. Rep. ii. 9. 16; 22. 40; P. Nigidius, in Gell. x. 5. 2; Fest. ep. 9, 119; 
 Pliny, N. H. xviii. 3. 11; Quint, v. 10. 55; Ovid, Fast. v. 281; Vanicek, ibid. 506, 
 1 149. 
 
 8 The army in the field must have consisted largely of men in patris aut avi 
 potestate, whose names were reported to the censors, not for taxation but for military 
 service, by those who had authority over them; cf. Livy xxiv. II. 7 ; xliii. 14; Dion. 
 Hal. ix. 36. 3; Fest. ep. 66. Scipio's complaint (Gell. v. 19. 16: "In alia tribu 
 patrem, in alia filium suffragium ferre ") indicates that the sons were regularly en- 
 rolled in the tribe of the father. That the list comprised plebeians only (Niebuhr, 
 Rom. Gesch. i. 457 f.) has proved untenable; Mommsen, Rom. Forsch. i. 153 f. 
 
 * Dion. Hal. iv. 14. 2; Livy i. 43. 14; Varro, L. L. v. 181. 
 
 6 Livy, ibid.; Varro, ibid.; cf. p. 63, n. 4 below. 
 
 6 Dion. Hal. iv. 19. 3; Fest. ep. 9; Ennius, in Gell. xvi. 10. I; cf. 12 f. Before 
 the introduction of pay for military service in 406 the soldiers bore their own 
 expenses; Livy iv. 59. 11; v. 4. 5; viii. 8. 3; Flor. i. 6. 8; Diod. xiv. 16. 5; Lyd. 
 De mag. i. 45 f.; p. 71 ff. below. 
 
62 THE ROMAN ASSEMBLIES 
 
 doubtless at first the knights provided their own horses ; 1 and 
 in short campaigns the soldiers carried their provisions from 
 their own farms. 2 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. 8 Other early sources of revenue were 
 tolls levied for the use of harbors, boundaries, temples, bridges, 
 roads, sewers, and salt works. 4 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. 5 Those men, also, who were exempt 
 from service because they possessed no land 6 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 mer- 
 chants. Sometimes the censors assigned to it as a punish- 
 ment 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. 7 
 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 
 
 1 Plutarch, Cam. 2, makes Camillas the author of the tax on orphans for the 
 support of the knights' horses, thus connecting this measure with the general intro- 
 duction of pay — a statement of some importance notwithstanding Kubitschek, in 
 Pauly-Wissowa, Real-Encycl. i. 683. 
 
 2 Zon. vii. 20 : OlKbanoi iarpaTeiovro. 
 
 3 Cic. Rep. v. 2. 3. 
 
 4 Marquardt, Rom. Staatsv. ii. 150 {., 159 f. with citations. 
 
 5 Cic. Rep. ii. 20. 36; Livy i. 43. 9; Plut. Cam. 2. 
 
 B Lange, Rom. Alt. i. 469, is of the opinion that before Servius all the plebeians 
 had this standing, and that Servius left the newly conquered plebeians in that 
 class, because if admitted to the army, they' might revolt ! Cf. Herzog, Rom. Staats- 
 verf. i. 95. 
 
 7 On the meaning of the word, see Pseud. Ascon. 103: "Ut pro capite suo 
 tributi nomine aera praeberet." On the removal from the tribe into this class; 
 Livy iv. 24. 7; xxiv. 18. 6, 8; 43. 3; xliv. 16. 8. The removal from the tribe is 
 understood when it is not mentioned j Varro, in Non. Marc. 190 ; Livy ix. 34. 9; 
 xxvii. 11. 15 ; Gell. iv. 12. 
 
THE THIRTY-FIVE TRIBES 63 
 
 they were in a distinct list. 1 Whereas the cives sine suffragio 
 either wholly lacked the franchise, as the phrase implies, or at 
 most had but the right of the Latins, 2 the other aerarii must 
 have voted in the proletarian century. 3 
 
 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 appor- 
 tion," because it was distributed among the citizens in proportion 
 to their ratable property. 4 We hear of such a tax levied for 
 ransoming the city from the Gauls 6 and another for the building 
 of a wall ; 6 but the most common use was for a the payment of 
 soldiers, hence the tributum was thought of primarily as a war 
 tax. 7 For this reason tributum came to be correlative with sti- 
 pendium. 8 It was not often imposed before the introduction of 
 pay in 406. 9 Even then it was not levied every year ; it was 
 sometimes refunded when the condition of the treasury per- 
 mitted; and it fell into disuse after 167. 10 As it was imposed 
 
 1 Livy vii. 20. 7 ; Dio Cass. Frag. 33 ; Strabo v. 2. 3 ; Gell. xvi. 13. 7 ; Schol. 
 Hor. lip. i. 6. 62. On the aerarii and Caerites, see further Mommsen, Rom. Staatsr. ii. 
 392-4, 401 ff., 406 ; Kubitschek, in Pauly-Wissowa, Real-Encycl. i. 674-6 ; iii. 
 1284 f. ; Hulsen, ibid. iii. 1281 f. ; see also the works of Herzog, Lange, Madvig, 
 and Willems. 
 
 2 P. 466, n. 2. 
 
 8 It would be absurd to suppose that while the absolutely poor citizens could vote 
 in the proletarian century, those who possessed considerable wealth, though not in 
 land, were excluded. 
 
 4 Unutterable confusion was brought into this subject by Varro, L. L. v. 181 : 
 " Tributum dictum a tribubus, quod ea pecunia, quae populo imperata erat, tributim 
 a singulis pro portione census exigebatur ;" cf. Livy i. 43. 13 ; Isid. Etym. xvi. 18. 7. 
 Neither is tributum derived from tribus nor vice versa. Tribuere signifies "to 
 divide," " to apportion ; " tributum, " that which is apportioned," tribus being only 
 indirectly connected with these words ; Schlossmann, in Archiv f. lat. Lexicog. 
 xiv (1905). 25-40. 
 
 6 Livy vi. 14. 12. 
 
 6 Ibid. 32. I. 
 
 7 Dion. Hal. v. 20 ; cf. iv. II. 2 ; xi. 63. 2 ; Plut. Popl. 12. 
 
 8 Livy ii. 9. 6 ; xxiii. 48. 8 ; xxxiii. 42. 4 ; xxxix. 7. 5 ; Pliny, N. ff. xxxiv. 6. 23 ; 
 Marquardt, Rom. Staatsv. ii. 162, n. 4. 
 
 9 Instances of public expenditure for the equipment or pay of troops before this 
 date (Dion. Hal. y. 47. I ; viii. 68. 3 ; ix. 59. 4 ; Livy iv. 36. 2) are either excep- 
 tional or more probably historical anticipations of later usage. That before 406 
 the soldiers drew pay from their tribes (Mommsen, Rom. Trib. 32 ; Lange, Rom. Alt. 
 i. 540) is disproved by Soltau, Altrbm Volksversamml. 407 f. 
 
 10 Marquardt, ibid. 164-7. 
 
64 THE ROMAN ASSEMBLIES 
 
 on those only who were liable to military duty, 1 the tribe lists 
 were followed in its collection, and in this sense we may say 
 that it was collected tributim. 2 The work was done by state 
 functionaries, as the tribe, so far as we know, had neither fiscal 
 officers 3 nor a treasury; and possessing no property, it could 
 not be held financially responsible. 
 I 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. 4 Cives sine suffragio were 
 alone excepted. 5 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, 6 whereas the landless 
 were confined to those of the city. 7 It was a permanent gain 
 that henceforth tribal membership was a test of perfect citizen- 
 ship. 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, 
 
 1 Cf. Mommsen, Rom. Staatsr. ii. 392. ' 2 Varro, L. L. v. 181. 
 
 8 The function of the tribuni aerarii was to pay the soldiers ; Cato, Epist. Quaes/. 
 i, in Gell. vi (vii). 10. 2; Varro, v. 181 ; Fest. ep. 2; Pliny, N.ff. xxxiv. 1. 1. 
 Perhaps they also collected money into the treasury ; Cic. Atl. i. 16. 3. From Cato's 
 statement they appear to have been financially responsible ; and we are informed 
 that as early as 100 they constituted a rank (ordo) evidently next below the equites; 
 Cic. Rab. Perd. 9. 27. Under the Aurelian law of 70 they made up a decury of 
 jurors ; Cic. Att. i. 16. 3 ; Pliny, N. H. xxxiii. I. 31. From these facts it is clear 
 that the aerarian tribunes were officers of the aerarium, but no connection with the 
 tribes can be discovered ; Soltau, Altrom. Volksversamml. 409-12. 
 
 4 Diod. xx. 46; Livy jx. 46. 10 f.; cf. Mommsen, Rom. Staatsr. ii. 403. 
 
 6 Mommsen, ibid. This class came to an end in the Social War; Kubitschek, in 
 Pauly-Wissowa, Real-Encycl. iii. 1285. 
 
 6 In Mommsen's opinion {Rom. Staatsr. ii. 403) these censors transferred to the 
 country tribes as many landholding members of the urban tribes as possible. 
 
 7 Livy ix. 46. 13 f. 
 
THE THIRTY-FIVE TRIBES 65 
 
 for that would be tantamount to depriving him of the citizen- 
 ship. 1 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. 2 Although the ordinary urban tribesmen were usually 
 exempt from military duty, the aerarii were required to serve, at 
 times under especially hard conditions, 3 and were not disqualified 
 for office. 4 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 valua- 
 tion ; and in order to treat all tribesmen alike, he must have 
 changed the terms of valuation of the landholders' estates from 
 iugera to money. 5 
 
 Niebuhr, B. G., Romische Geschichte, i. 422-50, Eng. 200-12 ; Schwegler, 
 Romische Geschichte, I. bk. xvii; Huschke, Ph. E., Verfassung des Konigs 
 Servius Tullius, ch. iii; Ihne, W ., History of Rome, i. 62, 114; Nissen, H., 
 Templum, 144 ff. ; Italische Landeskundc, ii. 503 f. ; Beloch, J., Italischer 
 Bund unter Roms Hegemonie, ch. ii ; Soltau, W., Altrom. Volksversamm- 
 lungen, 375-548 ; Meyer, E., Ursprung des Tribunats unci 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 rom. Re- 
 publik ; Siebert, W., Ueber Appius Claudius Caecus ; Mommsen, Th., His- 
 tory of Rome, bk. I. ch. vi; Rom. Tribus; Rom. Staatsrecht, iii. 161-98; 
 Abriss des rom. Staatsrechts, 28-36; Marquardt, J., Rom. Staatsv. ii. 
 149-80; Willems, P., Droit public Romain, 40 ff., 98 ff. ; Mispoulet, J. B., 
 Institutions politiques des Romains, i. 37-42 ; Etudes d "'institutions Romaines, 
 3-48 ; Lange, L., Rom. Altert'umer, i. 501-22, and see index s. Tribus ; 
 Madvig, J. N., Verfassung und Verwaltung des rom. Staates, i. 100-8 ; 
 Herzog, E., Geschichte und System der rom. Staatsverfassung, i. 39, 10 1 ff., 
 1016-31; Grotefend, C. L., Imperium romanum tributim descriplum; 
 Kubitschek, J. W., De romaporum tribuum origine ac propogatione ; 
 Imperium romanum tributim idiscriptum ; Pauly-Wissowa, Real-Encycl. i. 
 ■674-6: Aerarius (Kubitschek) 1 ; 682-4: Aes equestre (idem); 780-93: 
 Ager (idem) ; iii. 1281-3 : Caere (Hulsen) ; 2650 f. : Claudia (Wissowa) ; 
 iv. 117 f. . Clustumina (Kubitschek); Daremberg et Saglio, Diet. i. 125: 
 Aes equestre and hordearium (Humbert). 
 
 1 Livy xlv. 15. 
 
 2 The expression tribu movere or in aerarios referre was still used, but meant no 
 more than the transfer from a rural to an urban tribe and to the aerarian class within 
 the latter; p. 62, u. 7. 
 
 8 Cf. Livy xxiv. 18. 8 f. 
 
 4 Livy xxiv. 43. 2 f.; Cic. Cluent. 42. 120. 6 P. 86. 
 
 F 
 
CHAPTER IV 
 
 THE CENTURIES AND THE CLASSES 
 
 The ancient authorities represent Servius Tullius as the- 
 f ounder 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 1 — 
 
 " 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 cen- 
 turies 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, 2 sometimes termed the "discriptio cen- 
 
 1 1. 43. The account given by Dionysius Hal. iv. 16 f. ; vii. 59, is the same in: 
 principle, though slightly different in detail. 2 P. 52. 
 
 66 
 
THE CENTURIES AND THE CLASSES 67 
 
 turiarum," 1 sometimes " Commentarii Servi Tullii " 2 on the 
 supposition that Servius was the author. In reality it belonged 
 to the Censoriae Tabulae 3 of the period immediately following 
 269.* 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, 6 they could not have been described in the docu- 
 ment. The account of them found in our sources must, there- 
 fore, have been supplied by antiquarian study. 6 The annalist 
 who first used these Tabulae in the censorial archives was 
 Fabius Pictor. 7 Whether Livy and Dionysius derived their 
 account directly from him or through a later annalist cannot 
 be determined. 8 Though Cicero's source may ultimately have 
 been the same, he seems to have depended largely on his mem- 
 ory 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. 9 
 
 A brief analysis of this description, as presented by Livy or 
 Dionysius, will prove that it could not apply at the same time to 
 
 1 Fest. 246. 30; or " discriptio classium," ibid. 249. I. 
 
 3 Livy i. 60. 4. 
 
 'Quoted by Cic. Orat. 46. 156, for the forms "centuria fabrum" and "procuni." 
 Varro, L. L. vi. 86-8, is an extract from the Tabulae of later time; cf. Mommsen, 
 Mint. Staatsr. iii. 245, n. I. 
 
 4 P. 52. Proof of the date is the fact that the ratings are in the sextantarian as, 
 legally adopted in 269 or 268 (page 86). The as of this standard was valued 
 at one tenth of a denarius, so that 1000 asses = 100 denarii = I mina; Dion. Hal. 
 iv. 16 f.; Polyb. vi. 23. 15: OJ ivtp ris paiptas Tip.ihp.evoi Spaxp-is, descriptive of the 
 highest rating — 100,000 asses; Mommsen, Rom. Staatsr. iii. 249, n. 4; Hill, Greek 
 and Roman Coins, 47. It could not have been later than 241, in which year the 
 reform of the centuriate assembly must have been far advanced, if not completed; 
 page 215. 
 
 6 P. 84. \ 
 
 6 It is wrong to suppose witlkSoltau, in Jahrb.f. cl. Philol. xli (1895). 4 ,2 > n> 6, 
 that all the details of the Servian system were known only in this way. 
 
 7 Cf. Livy i. 44. 2 ; Dion. Hal. iv. 15. 1. 
 
 'Smith, Rom. Timokr. 9 ff., supposes Calpurnius Piso to have been the inter- 
 mediary. But a problem in which so many of the quantities are unknown is 
 incapable of solution. 
 
 9 P. 205, n. 5, 215. 
 
68 THE ROMAN ASSEMBLIES 
 
 an army and a political assembly: (i) The century of proleta- 
 rians, which formed a part of the comitia, and which according 
 to Dionysius was larger than all the rest together, was exempt 
 from military service. 1 (2) The unarmed supernumeraries 
 termed accensi velati must in their military function have lacked 
 the centuriate organization, as will hereafter be made clear. 2 
 (3) The musicians and the skilled workmen who accompanied 
 the army must also be eliminated from the centuriate organiza- 
 tion of the army. 3 (4) The seniors, too, lacked the centuriate 
 military organization. 4 (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 vot- 
 ing century ; and as time progressed, the one group diverged 
 more and more widely from the other. 5 
 
 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 mili- 
 tary centuries constituted, 6 not of the comitia. 7 This result 
 harmonizes with the view of the ancient writers that the co- 
 mitia centuriata exercised no functions — hence we have a right to 
 infer that it had no existence — before the beginning of the 
 republic. 8 
 
 The following sketch of the development of the Roman mili- 
 tary 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 
 
 1 Livy i. 43. 8 ; Dion. Hal. iv. 1 8. 2 ; p. 207. 
 
 a P. 80. »P. 81. 4 P. 81. 6 P.82f. 
 
 6 Livy viii. 8. 3 ; Dion. Hal. iv. 22. 1. 
 
 7 It is unnecessary here to consider the question as to the historical personality of 
 Servius Tullius. In this volume the name will be given to the king (or group of 
 kings?) who instituted the so-called Servian tribes and the military centuries and 
 made a beginning of the census. 8 p. 2 oi. 
 
THE CENTURIES AND THE CLASSES 69 
 
 centuriata in the form described by Livy and Dionysius de- 
 veloped 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 for- 
 mer doubtless being derived in large part from the latter. 1 The 
 nobleman, 2 equipped in heavy armor, rode forth in his chariot 3 
 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),* as in Homeric 
 
 1 Helbig, Sur les attributes des saliens, in Memoires de Vacad. d. inscr. et belles- 
 let, xxxvii (1906). 230 ff. ; cf. Comptes rendus de Pacad. etc. 1904. ii. 206-12. 
 Helbig finds that the Latino- Etruscan equipments of the time preceding Hellenic 
 influence, as shown by archaeology, correspond closely with those of the Salii, whom 
 he regards therefore as religious survivals from that early civilization. It is from 
 archaeological data, combined with the well-known equipment of the Salii, that the 
 close resemblance between the early Latino-Etruscan and the Mycenaean military 
 system is established. 
 
 2 Not merely the chief, as Helbig, Comptes rendus, 1900. 517, supposes. The 
 Tivtoxoi Kal Trapapireu who fought at Delium, and whom he rightly regards as a 
 survival from the age of war-chariots, acted as a company not as individuals ; Diod. 
 xii. 70. 1. 
 
 8 Helbig, Le Currus du roi Romain, in Melanges Perrot, 167 f. It was like 
 that chiseled on a gravestone found by Dr. Schliemann on the acropolis of 
 Mycenae, in the main identical with the Homeric chariot, represented in later time 
 on the famous sarcophagus at Qazomenae; Pellegrini, in Milani, Studi e materiali, 
 i. 91-3, 98. 
 
 4 That the army of Romulus — the primitive Roman army — was a single legion, 
 and that the Servian reform consisted accordingly in doubling it, is an ancient 
 hypothesis accepted by some moderns, as Smith, Rom. Timokr. 38 f. An organ- 
 ization in definite numbers, however, as 1000 from each tribe, cannot arise till the 
 state has grown sufficiently populous to mike up the army of a part only of its 
 available strength, when folk and army have ceased to be identical (Schrader, 
 Reallex. 350), and it is agreed that this condition was not reached till after the 
 adoption of the Servian reform; Delbruck, Gei(A d. Kriegsk. i. 225; Smith, ibid. 
 52 f., 56. 
 
 Gesch 
 
70 THE ROMAN ASSEMBLIES 
 
 Greece 1 and among the early Europeans 2 before the develop- 
 ment 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. 3 Yet in the Homeric age of Greece some at- 
 tempt was made to keep the fighters in line, and to prevent the 
 champions from advancing beyond it to single combat. 4 A sim- 
 ilar tendency to even, rhythmic movement may be inferred for 
 the Latin army. 5 The great innovators in this direction were 
 the Lacedaemonians, to whom the honor of inventing the 
 phalanx is chiefly due. 6 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. 7 The depth varied as the occasion demanded ; 
 it was not necessarily uniform throughout the line, but for 
 Lacedaemon eight may be considered normal. 8 The heavy -armed 
 trooper carried a large shield, which covered the entire body, a 
 helmet, and greaves; his offensive weapons were sword and 
 spear. 9 Tyrtaeus mentions also a coat of mail though not as 
 an essential part of the equipment. 10 The metal of their defen- 
 
 !//. ii. 362. 
 
 2 Schrader, ibid. For the Sueves, see Caesar, B. G. iv. 1 ; for the Lacedaemonian 
 army, see p. 71. The assumption of Helbig, Comptes rendus, 1904. ii. 209, that the 
 army was composed of patricians only is altogether unwarranted. Equally ground- 
 less is the notion of Soltau, Altrom. Volksversamml. 250, that the Homeric army 
 was composed chiefly of nobles with a few light-armed dependents. 
 
 8 Cf. Liers, Kriegswesen der Alien, 78; Niese in Hist. Zeitschr. xcviii (1907). 264, 
 266,289. *//. iv. 293 ft". 
 
 6 Represented by the dances of the Salii ; Helbig, ibid. 211 f. 
 
 6 Paus. iv. 8. 11; Polyaen. i. 10; Delbriick, Gesch. d. Kriegsk. i. 30 f.; Niese, in 
 Hist. Zeitschr. xcviii (1907). 274 ff. 'Cf. Thuc. v. 70; Polyaen. i. 10. 
 
 8 Cf. Thuc. v. 69. For this and other depths, see Delbriick, ibid. i. 25; Liers, 
 Kriegswesen der Alten, 45; Lammert, in N.Jahrb.f. kl. Philol. xiii (1904). 276 f. 
 
 9 Tyrtaeus, Frag, xi (Bergk). For the shield which covered "hips, legs, breast, 
 and shoulders," v. 23 f. It was abolished by Cleomenes III; Plut. CUom. II; cf. 
 Liers, ibid. 34; Lammert, ibid. 276 f. 
 
 XII. 26; Xen. Anab. i. 2. 16. A public gift of a bronze cuirass is mentioned by 
 Aristotle, Lac. Pol. 75, Miiller, Frag. Hist. Grace, ii. p. 127. Gilbert, Const. Antio. 
 73; Delbriick, ibid. 25, maintain that the cuirass was a regular part of the equip- 
 ment. This is true of soldiers who carried smaller shields. 
 
THE CENTURIES AND THE CLASSES 71 
 
 sive armor was mostly bronze ; their swords and spear-points 
 were probably iron, which the mines of Laconia abundantly 
 supplied. 1 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, 2 divided into companies of fifty or perhaps a 
 hundred, 3 which were made up of still smaller groups. The 
 military age extended from the twentieth to the sixtieth year. 4 
 
 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, 6 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., 6 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, 7 from one of 
 these neighbors. 
 
 1 BeIoch, Griech. Gesch. i. 200 f.; cf. Liers, Kriegswesen der Alten, 34 f.; Droysen f 
 Griech. Kriegsalt. 3 ff. 
 
 2 Cf. the name of one of these regiments Me<r<roiTi;s (Schol. Thuc. iv. 8) derived 
 from the village or local tribe Messoa. Schol. Aristoph. Lysistr. 453, mentions five by 
 name; cf. Aristotle, Frag. 541. Perhaps a sixth for guarding the kings was drawn 
 from all the tribes; Busolt, Griech. Gesch. i. 535 ff. with notes. Lenschau, in Jahresb. 
 it. Altwiss. cxxxv. 83, holds that there were but four phylae. 
 
 "The name pentecosty indicates that it originally comprised fifty men, which 
 suggests that the century may have been a higher group. Before the Feloponnesian 
 War (Thuc. v. 68) the Lacedaemonian organization had departed far from its original 
 form. jL^~~ 
 
 4 Droysen, Griech. Kriegsalt. 70; Gilbert, Const. Antiq. 72. Compulsory service 
 beyond the border ceased with the fortieth year; Xen. Hell. v. 4. 13. 
 
 6 Cf. Liers, Kriegsw. der Alten, 14. 
 
 • Busolt, Griech. Gesch. ii. 180 ff.; Helbig, m Mem. de I'acad. des inscr. xxxvii 1 
 (1904). 164. But the Athenian army did not become efficient till long after Solon; 
 cf. Niese, in Hist. Zeitschr. xcviii (1907). 278-82. 
 
 7 The Romans believed that they got the phalanx from the Etruscans; Ined. Vat., 
 in Hermes, xxvii (1892). 121 from an early historian, Fabius Pictor or Posidonius 
 or Polybius (Pais, Anc. Italy, 323); Diod. Jpriii. 2 (Muller); Athen. vi. 106. 
 
72 THE ROMAN ASSEMBLIES 
 
 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 sim- 
 ilar way, without gradations of equipment. The complex sys- 
 tem 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 1 was originally 
 limited to the first or highest census group, all the rest being 
 "infra classem." 2 
 
 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 Etrus- 
 can buckler 3 instead of the man-covering Dorian shield. They 
 
 p. 273 f.; Wendling, in Hermes, xxviii (1893). 335 ff.; Muller-Decke, Etrusker, i. 
 364 ff.; Smith, Rbm. Timokr. 40. The circumstance does not prove that the 
 Romans were then in subjection to the Etruscans. 
 
 1 Some of the ancients derive classis from calare, " to call," hence " summoning;" 
 Dion. Hal. iv. 18. 2; Quint. Inst. i. 6. 33; accepted by Walde, Lat. Etym. Wbrterb. 
 125; Soltau, Altrbm. Volksvcrsamml. 242; Lange, Rom. Alt. i. 464. Others con- 
 nected it with /caXos "firewood," hence "gathering;" Serv. in Aen. i. 39; Isid. 
 Etym. xix. I. 15; Schol. Luc. i. 306. Corssen, Ausspr. i. 494, proposes to derive it 
 from a root "clat," which appears in the Greek KX^Teiieii' (Lat. *clat-e-re), Germ, 
 laden, which would still give the meaning " summoning; " cf. Curtius, Griech. Etym. 
 139; Vanicek, Griech. Lat. etym. Wbrterb. 143 (*cla-t, cla-t-ti-s). Mommsen 
 accepted the meaning " summoning " in the early editions of his History, but rejects 
 it in the Staatsrecht, iii. 262 f. (cf. his History, English ed. i. 1900. 115 f., 118) on 
 the ground that however adapted it may have been to the later political classes, it 
 could not well apply to the fleet and army, and hence could not belong to the earlier 
 use of the word, which denoted the line in contrast with those who fought outside 
 the line. But against his reasoning it could be urged that classis with the idea of 
 " summoning " first applied to the line of heavy infantry — the only effective part 
 of the army; and when once the connotation of "line" had been established, it 
 could easily extend to the fleet. 
 
 2 Gell. vi (vii). 13: "'Classici' dicebantur non omnes, qui in quinque classibus 
 erant, sed primae tantum classis homines, qui centum et viginti quinque milia aeris 
 ampliusve censi erant. ' Infra classem ' autem appellabantur secundae classis cetera- 
 rumque omnium classium, qui minore summa aeris, quod supra dixi, censebantur. 
 Hoc eo strictim notavi, quoniam in M. Catonis oratione, qua Voconiam legem suasit, 
 quaeri solet, quid sit ' classicus,' quid ' infra classem; ' " Fest. ep. 1 13; cf. Cic. Verr. 
 II. i. 41. 104; Pseud. Ascon. 188; Gaius ii. 274. 
 
 8 The statement of Diod. xxiii. 2 (Miiller) , and of the Ined. Vat. (in Hermes, xxvii. 
 121) that the Romans derived their round shield from the Etruscans accords with 
 
THE CENTURIES AND THE CLASSES 
 
 73 
 
 were grouped in centuries, 1 forty of which composed the classis 
 in the fully developed phalanx. 2 The age of service of the 
 juniors, who alone fought in the field, extended from the com- 
 pleted seventeenth to the completed forty-sixth year, 3 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. 4 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. 6 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. 6 It is a curious fact that some horsemen, Roman as well 
 as Greek, were provided each with two horses, 7 one for the 
 warrior and the other for his squire, 8 and that the mounted 
 
 archaeological evidence for the use of the round shield by the early Etruscans; 
 Pellegrini, in Milani, Studi e matcriali, i. 91 ff.; Helbig, in Comptes rendus de 
 I'acad. des inscr. 1904. ii. 196. 
 
 1 The notion of Delbrfick, Gesch. d. Kriegsk. i. 227, that the army was not organ- 
 ized in centuries till after the beginning of the republic has no foundation whatever. 
 
 2 P. 76. The original number cannot be determined. 
 
 8 Tubero, in Gell. x. 28. I ; Non. Marc. 523. 24. From this fact it appears that 
 military conditions made a far greater demand upon the early Romans than upon 
 the Lacedaemonians. 
 
 * Helbig, in Comptes rendus de I'acad. des inscr. 1900. 516 ff.; Mem. de Pacad. 
 etc. xxxvii 1 (1904). 157 ff.; Hermes xl (1905). 109. The objection of Smith, Rom. 
 Timokr. 37, n. 3, is not well founded. 
 
 6 Incertus Auctor (Huschke), p. I. 
 
 6 Ined. Vat.,'m Hermes xxvii (1892). 121; Helbig, ibid, xl (1905). 114. The 
 transvectio equitum was instituted in 304; Livy ix. 46. 15. On the close connection 
 of the Roman cavalry with that of the Greeks of southern Italy, see Pais, Sloria di 
 Roma, I. ii. 607, n. I. 
 
 7 The priores had each two horses; Granius Licinianus xxvi, p. 29: "Verum de 
 equitibus non omittam, quos Tarquinius ita constituit, ut priores equites binos equos 
 in proelium ducerent; " cf. Fest. ep. 221. On the Tarentine cavalry, see Livy xxxiii. 
 29, 5. The inference is that the posteriores had one horse each. 
 
 8 Helbig, in Hermes xl (1905). 107. Notizie degli Scavi, 1899. 167, fig. 17 (cf. 
 p. 157) ; 1900. 325, fig. 28; Pellegrini, in Milani, Studi e matcriali, i. 106. 
 
74 THE ROMAN ASSEMBLIES 
 
 soldiers of Etruria were in these respects the same. 1 A further 
 resemblance between the earliest Greek and Roman horsemen 
 lies in the fact that they were noble. 2 
 
 In their account of the growth of the mounted service during 
 the regal period the ancient authorities show great inconsisten- 
 cies. 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. 3 Then Tarquinius Priscus 
 doubled the number, making six in all, and Servius finally in- 
 creased 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 4 at about 
 5000 ; hence the assumption of 200 or even 300 knights to the 
 century as early as the reign of Romulus. 5 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. 6 
 The idea of the sources is that there came to be three troops 
 of horsemen, furnished by the tribes, 7 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 ac- 
 cordingly after the tribes Ramnenses, Titienses, and Lucerenses 
 priores and posteriores respectively. 8 The priores had each 
 two horses, the posteriores one. 9 Hence the essential difference 
 
 1 Pellegrini, ibid. i. 97, fig. 5; 104, fig. 10. 2 P. 75. a P. 3, n. 8. * VI. 13. 4. 
 
 6 The principal sources are Cic. Rep. ii. 20. 36; 22. 39; Livy i. 13. 8; 15. 8; 
 36. 7; 43. 8 f.; Dion. Hal. ii. 13; vi. 13. 4; Pliny, N.H. xxxiii. (9.) 35; Fest. ep. 
 55; Plut. Rom. 13. On the basis of these sources we could reckon an increase to 
 1800, 3600, or 54°° according to our assumption as to the number of horsemen to 
 the century; cf. Gerathewohl, Die Reiter und die Rittercenturien, 3-8. 
 
 6 Helbig, in Hermes, xl (1905). 101, 105, 107. 
 
 7 Livy i. 13. 8; Dion. Hal. ii. 13. 1 f. ; Fest. ep. 55. 
 
 8 Cic. Rep. ii. 20. 36; Livy i. 36. 2, 7; Fest. 344. 20; ep. 349. Writers differ 
 slightly in the form of the names. 9 p_ « n » 
 
THE CENTURIES AND THE CLASSES 75 
 
 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. 1 As the centuriate organ- 
 ization of Servius applied to the infantry, the cavalry remained 
 little affected by it. The six troops with their old names sur- 
 vived, 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. 2 
 When with the institution of the republic the phalanx was 
 split into two legions, ten turmae of cavalry were assigned to 
 each legion. 3 As in historical time the number of horsemen to 
 a legion did not exceed 300, 4 and as we have no reason to sup- 
 
 1 This distinction of rank among, the patrician centuries of the comitia centuriata 
 is proved by the expression " proceres patricii " in the Censoriae Tabulae, quoted by 
 Fest. 249. 1 : " Frocum patricium in descriptione classium, quam fecit Ser. Tullius, 
 significat procerum. I enim sunt principes; " Cic. Oral. 46. 156 : " Centuriam fabrum 
 et procum, ut censoriae tabulae loquuntur, audeo dicere, non fabrorum aut procorum." 
 Mommsen, Rom. Staatsr. iii. log, n. I, has rightly referred it to one of the sex suf- 
 fragia, for no century outside this group could have been so designated; cf. Livy ii. 
 20. 11, who speaks of the cavalry as proceres iuventutis. The mention of a century 
 of leading patricians implies the existence of one or more centuries of the less dis- 
 tinguished members of the same rank, which must have been the rest of the sex 
 suffragia. The superior rank of the equites in early Rome is proved by Dion. Hal. 
 ii. 13. 1; iv. 18. 1; Livy i. 43. 8 f.; ii. 20. 11. In ii. 24. 2 Livy implies that the 
 patricians did not serve on foot (militare), and in iii. 27. I he speaks of a patrician 
 who, as an exception among his rank, served on foot because of his poverty. In 
 ii. 42 f. he distinguishes the cavalry from the infantry as patricians from plebeians. 
 The fact that in the political conflict between the two social classes the patricians 
 often threatened to carry on foreign wars with the aid merely of their clients (cf. 
 Dion. Hal. *. 15, 27 f.,43) proves that the phalanx was essentially plebeian. On the 
 honorable place of the equites in the camp,'see Nitzsch, in Hist. Zeitschr. vii (1862). 
 145. That the sex suffragia remained patrician down to the reform of the comitia 
 centuriata is probable; cf. Sallust, Hist. i. 11, who represents the struggle between 
 the social classes as continuing to the opening of the war with Hannibal; see also 
 Mommsen, Rom. Staatsr. iii. 254. 
 
 a Dion. Hal. ii. 7. 4; cf. Polyb. vi. 25. 1; Varro, L. L. v. 91 : "Turma terima (e 
 in u abiit) quod ter deni equites ex tribus tribubus Titiensium Ramnium Lucerum 
 fiebant : itaque primi singularum decuriones dicti, qui ab eo in singulis turmis sunt 
 etiamnunc terni; " cf. Curiatius, in Fest. 355. 6. 8 Cf. Polyb. vi. 25. I. 
 
 4 Three hundred is given as normal by Polyb. i. 16. 2; vi. 20. 9. In iii. 107. 10 f. 
 he states it at 200, increased to 300 when to meet extraordinary cases the legion 
 was strengthened to 5000; cf. ii. 24. 3. Livy, xxii. 36. 3, agrees with the latter state- 
 ment. Mommsen, Rom. Staatsr. iii. 477, believes that the normal number was 300, 
 decreased to 200 when a greater number of legions was levied. 
 
76 THE ROMAN ASSEMBLIES 
 
 pose 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 Ser- 
 vian 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, 1 (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 bear- 
 ing on the organization of the comitia centuriata. After a time 2 
 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. 3 It numbered sixty centuries of heavy infantry, 
 
 1 'Niese, ffist. Zeitschr. xcviii (1907). 283, rightly assumes that the first and second 
 classes at Athens were not cavalry; Helbig is right in understanding them to be 
 mounted hoplites. Niese's criticism (ibid. 287 and n. 1) of Helbig's view is not 
 convincing. 
 
 2 Considerable time was required for the establishment of the earliest known 
 meaning of classis before the second and third divisions were added. 
 
 8 This is a conjecture of Bruncke, in Philol. xl (1881). 362, favored by Delbruck, 
 Gesch. d. Kriegsk. i. 222. 
 
THE CENTURIES AND THE CLASSES 77 
 
 composed of three grades which depended upon the census 
 rating. 1 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. 2 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. 3 
 
 In making the levy the military tribunes selected the soldiers 
 from the lists of tribesmen, taking one tribe after another as the 
 lot determined. 4 The early Romans must have striven to dis- 
 tribute the population as equally as possible among the tribes in 
 order to render them approximately equal in capacity for mili- 
 tary 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. 6 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 
 
 1 p. 79, 86. 
 
 2 Usually scholars (cf. Domazewski, in Pauly-Wissowa, Real-Encycl. iii. 1953 f. ; 
 Delbriick, Cesck. d. Kriegsk. i. 227 ; Smith, R'om. Timokr. 39) assume fifteen centu- 
 ries for the fifth rating, on the authority of Livy i. 43. 7; Dion. Hal. iv. 17. 2 ; vii. 
 59. 5. But our knowledge of the phalanx is only inference, which to be acceptable 
 must have at least the merit of possibility. The number fifteen is wrong because it 
 could not have been divided evenly between the two legions ; and on the other hand 
 it will be shown later (p. 208) that in all probability the fifteenth century was not 
 military but was added in the make up of the comitia centuriata. 
 
 8 Miiller, in Philol. xxxiv (1876). 129, is right in supposing that the legion was 
 strengthened between the time of Servius and 387, but it was not in the way he 
 assumes. The tradition of a legion (half phalanx) of 4000 men is preserved in 
 Livy vi. 22. 8. 
 
 * Polyb. vi. 20. 
 
 6 Cf. Smith, R'om. Timokr. 1 21 ff. 
 
7 8 THE ROMAN ASSEMBLIES 
 
 tribes from which to make the levy. 1 It was an easy matter as 
 long as the heavy troops were limited to the classis; 2 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; 3 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 inex- 
 pedient to make a corresponding enlargement of the legion, 4 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 propor- 
 tionate to its capacity. 5 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), 6 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 
 
 1 Livy iv. 46. I : " Dilectum haberi non ex toto passim populo placuit : decern 
 tribus sorte ductae sunt. Ex his scriptos iuniores duo tribuni ad bellum duxere." 
 If this passage does not state a historical fact, at least it gives the idea of the writer 
 as to the custom of earlier time. 2 P. 72, 7°- 
 
 s Cf. Smith, Rom. Timokr. 51 ff. 
 
 * In time of especial danger, however, the legion was increased to five thousand; 
 Polyb. vi. 20. 8. 
 
 6 Cf. Mommsen, Rom. Staatsr. iii. 268, n. 2. 
 
 6 That the phalanx was a comparatively late institution at Rome, or that it was 
 slow in becoming the only military system, is indicated by the survival in tradition 
 of a more primitive mode of warfare. Sometimes in the early republic a single gens 
 with its clients took the field ; for the Fabian gens, see Livy ii. 48 ff. Often the 
 patricians threatened to arm their clients, to carry on a war without the aid of the 
 troublesome plebeians ; cf. Dion. Hal. x. 15, 27 f., 43. As there was no motive in 
 later time for the invention of such stories, they must contain a kernel of real tradi- 
 tion ; hence they could not go back to the sixth century, and it is difficult to 
 believe that they are so old as the fifth. 
 
 Collateral evidence that the second and third divisions were instituted relatively 
 late may be found in the circumstance that the scutum, the distinctive piece of armor 
 of these divisions, was introduced no earlier than the age of Camillus — the period 
 of the war with Veii and the Gallic conflagration ; Livy viii. 8. 3 ; Miiller-Deecke, 
 Mlrusker, i. 366. It was Samnite (Athen. vi. 106, p. 273 f. ; cf. Sail. Cat. 51), and 
 was therefore probably adopted in the fourth century when Rome first came into 
 contact with that people. 
 
THE CENTURIES AND THE CLASSES 79 
 
 for the desperate economic condition of the poorer peasants of 
 that epoch. 
 
 The proportions of the five ratings — 20-15-10-5-2^ or 2 — 
 to be discussed hereafter, 1 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 direc- 
 tion, should be closely connected with the institution of the 
 censorship in 443 or 43 5. 2 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), 3 the classis com- 
 prised four ranks (4000), the second and third ratings one rank 
 each, making in all six ranks of heavy troops (6000) . 4 Twenty 
 centuries could be drawn from the two ratings of light troops 
 to complete the eight ranks when needed. 6 But the Romans 
 
 1 It is evident to the reader that these proportions are those of the discriptio cen- 
 turiarum of Livy and Dionysius (p. 66 above), and it will be made clear below 
 (p. 86) that the ratings were originally in terms of iugera, the minima of the five 
 ratings being in all probability 20, 15, 10, 5, and 2.\ or 2 iugera respectively. 
 
 2 For the date, see Mommsen, Rom. Staatsr. ii. 334 f. ; Kubitschek, in Pauly- 
 Wissowa, Real-Encycl. iii. 1902 f. ; Pais, Storia di Roma, I. ii. 13, 33 f. 
 
 11 There may be some truth in the etymology suggested by Varro, L. L. v. 89 ; cf. 
 'Soltau, Altrbm. Volksversamml. 256. 4 Cf. Liers, Kriegsw. d. Alten, 46. 
 
 6 Dionysius Hal. iv. 17. I, includes the fourth rating in the phalanx of heavy in- 
 .fantry. For other possibilities of arrangement, see Smith, Rom. Timokr. 46 f. 
 
80 THE ROMAN ASSEMBLIES 
 
 undoubtedly exercised the same good judgment as the Lacedae- 
 monians in varying their formation to suit the emergency; 1 
 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. 2 The explanation already 
 suggested, that the state supplied the deficiency in equipment, 3 
 would greatly simplify the case, for there would then exist no 
 need of arraying the census groups in successive lines. What- 
 ever may have been the tactic arrangement, it did not continue 
 long, for soon after the introduction of regular pay, about 
 400 b.c., 4 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 accom- 
 panied 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. 6 These men could not have been organ- 
 ized in centuries, 6 for they were drawn up in the rear behind 
 
 1 Thuc. v. 68 ; p. 86 above. 
 
 2 Delbruck, Gesch. d. Kriegsk. i. 229 ; Smith, Rom. Timokr. 45 ff. That the 
 second and third divisions of the phalanx were sometimes withdrawn to operate 
 on the flanks (Soltau, Altrbm. Volksversamml. 249) is possible, though we have no 
 proof of it. 
 
 8 P. 76. From early times the Greek and Italian states kept arsenals with which- 
 to arm the poor in crises ; Liers, Kriegsio. d. Alien, 36 f. * P. 84. 
 
 6 Fest. ep. 14, 18, 369 ; Varro, L. L. vii. 56-58. From them the centurions and. 
 decurions engaged their servants ; Cato, in Varro, L. L. vii. 58 ; Varro, Vit. pop. rom. 
 iii, in Non. Marc. 520 ; Veget. ii. 19. Hence they served the civil magistrates as- 
 attendants ; cf. Censoriae Tabulae, in Varro, L. L. vi. 88 ; Livy iii. 33. 8 ; Suet. 
 Caes. 20 ; Non. Marc. 59. They must have corresponded with the squires of the 
 Greek and Roman cavalry ; p. 73. They were sometimes called adscriptivi, or as 
 carriers ferentarii. If, as has been suggested, the secretaries and other attendants 
 of the higher officers were also drawn from them, this circumstance would help- 
 explain the honor attaching to the collegium accensorum velatorum of imperial, 
 time ; Mommsen, Rom. Staatsr. iii. 289 ; Delbruck, Gesch. d. Kriegsk. i. 233. 
 
 6 Notwithstanding Kubitschek, in Pauly-Wissowa, Real-Encycl. i. 135 f. 
 
THE CENTURIES AND THE CLASSES 81 
 
 the light troops ; they extended along the entire breadth of the 
 army, 1 and must have greatly exceeded one hundred or even 
 two hundred. The musicians, 2 too, who accompanied the army 
 were not grouped in two centuries, for they were distributed 
 throughout the army. 3 There is no reason for assuming exactly 
 two hundred musicians* or exactly two hundred workmen, 5 or 
 for supposing that any of the men of this description were organ- 
 ized 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 sys- 
 tem. A military century, as the name indicates, must have 
 contained a hundred men. 6 But in any static population there 
 are three times as many men between seventeen and forty-six 
 as between forty-six and sixty 7 — 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 
 
 1 Livy viii. 8. 8. Leinveber, in Philol. N. F. xv (1902). 36, estimates 558 accensi 
 to the legion. 
 
 a The cornicines tubicinesque ; Livy i. 43. 7. 
 
 8 The cornicines marched in front of the banners ; Joseph. Bell. lud. v. 48 ; 
 Fiebiger, in Pauly-Wissowa, Real-Encycl. iv. 1602. 
 
 4 The number is unknown. In the legio III Augusta there were thirty-six corni- 
 cines ; CIL. vii. 2557 ; Fiebiger, ibid. 1603. 
 
 6 Livy i. 43. 3. 
 
 6 Varro, L. L. v. 88 : " Centuria qui sub uno centurione sunt, quorum centenarius 
 iustusnumerus;"Fest. ep. 53 : "Centuria . . . significat . . . in re militari centum 
 homines ; " Isid. Etym. ix. 3. 48 ; cf. Huschke, Verf. d. Serv. 107. 
 
 7 Estimates have been made by Miiller, in Philol. xxxiv (1876). 127; Delbruck, 
 Gesch. d. Kriegsk. i. 224; Beloch, Bevblk. d. griech.-rbm. Welt, 42 f.; Smith, Rom. 
 Timokr. 67. In the United States the ratio is more than four to one ; Special 
 Reports : Suppl. Analysis and Derivative Tables, Twelfth Census of the United 
 States, 1900, Washington, 1906. p. 170 f. The estimate given in the text is based 
 upon the "Deutsche Sterbetafel" for men, in E. Czuber, Warscheinlichkeits- 
 rechnung (Leipzig, 1903), p. 572, 574. The ratio is almost exactly three. 
 
 G 
 
82 THE ROMAN ASSEMBLIES 
 
 active service. 1 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, 2 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 cen- 
 turies or cohorts, their enrolment in these companies is espe- 
 cially mentioned, our conviction that the senior centuries did 
 not belong to the original Servian organization grows into a 
 certainty. 3 
 
 V. Conclusions as to the Servian and Early Republican Organ- 
 izations ; Transition to the Manipular Legion 
 
 In our search for the Servian and post-Servian schemes of mili- 
 tary organization we found it necessary to eliminate from the 
 discriptio centuriarum all the centuries of pedites with the ex- 
 ception of the juniors. But even a military century of juniors 
 could not have remained identical with a voting century; for the 
 
 1 Livy i. 43. 2. For the year 401, see Livy v. 10. 4 : "Nee iuniores modo con- 
 scripti, sed seniores etiam coacti nomina dare, ut urbis custodiam agerent ; " for 389, 
 vi. 2. 6 ; for 386, vi. 6. 14 ; for 296, x. 21. 4 : " Nee ingenui modo aut iuniores Sacra- 
 mento adacti, sed seniorum etiam cohortes factae libertinique centuriati. Et defen- 
 dendae urbis consilia agitabantur ; " cf. Mommsen, Rom. Staatsr. ii. 409, n. 5. The 
 last of the definite instances here mentioned could alone be historical, and in this 
 case not centuriae or legiones but cohortes seniorum are spoken of. 
 
 2 Cf. Delbriick, Gesch. d. Kriegsk. i. 227 f. 
 
 8 If the senior centuries were formed in the way assumed by Mommsen, Rom. 
 Staatsr. iii. 261 (" Nicht selbstandig gebildet worden, sondern daraus hervorge- 
 gangen, dass wer aus einer Centurie des ersten Aufgebots Alters halber ausschied, 
 damit in die entsprechende Centurie des zweiten Aufgebots eintrat "), about a half 
 generation must have been required to evolve them. An objection to his idea is that 
 the military centuries as well as the legions were formed anew at each year's levy 
 (Polyb. vi. 20, 24), whereas the political centuries were made up by the censors 
 (cf. Cic. Rep. ii. 22. 40 : " In una centuria censebantur ") , doubtless modified annu- 
 ally by the consuls. A military century and a political century accordingly could not 
 have been composed of the same men. 
 
 The Tabulae Iuniorum contained the names of all juniors in honorable service in 
 the field; Livy xxiv. 18. 7. Tabulae Seniorum are not mentioned. Classis Iuniorum 
 (Fest. 246. 30) may apply to all eighty-five (or eighty-four) centuries of juniors, as 
 Lange, Rom. Alt. i. 474, supposes, or to the first class ; Tubero, Historiae, i, in Gell. 
 x. 28. I : " Scripsit Servium Tullium regem, populi Romani cum illas quinque classes 
 iuniorum census faciendi gratia institueret." It is doubtful whether there was a 
 separate list of seniors. 
 
THE CENTURIES AND THE CLASSES 83 
 
 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 hun- 
 dred men each. In the four lower classes each century con- 
 tained as many men as the entire first class ; 1 and individuals 
 constantly shifted from one class to another as their several 
 properties increased or diminished. 2 It is a mistake, therefore, 
 to think of the army as identical with even the junior centuries 
 of the comitia. 8 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 physi- 
 cally 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. 4 
 
 The conclusion as to the strength of the army in the first 
 years of the republic, before the latter had acquired any con- 
 siderable accession of territory, corresponds closely with a mod- 
 erate estimate of the population under the conditions then 
 existing. The area of the state was about 983 square kilome- 
 ters (equivalent to 379.5 sq. mi. or 242,899 acres). 5 Estimat- 
 ing the population of this agricultural community at its maxi- 
 mum of sixty to the square kilometer, we should have less than 
 60,000 for the entire area. 6 The number of men from seventeen 
 
 1 Cic. Rep. ii. 22. 40: "Illarum autem sex et nonaginta centuriarum in una cen- 
 turia turn quidem plures censebantur quam paene in prima classe tota." 
 
 2 Soltau, Altrbm. Volksversamml. 240. 
 
 8 The confusion of the comitia with the army, which the ancient writers began, 
 the moderns have intensified till the subject has become utterly incomprehensible. 
 Chiefly to Genz, Servianische Centurienverfassung (1874) and Soltau, Alrom. Volks- 
 versammlungen (1880) belongs the credit of putting in a clear light the fact that the 
 original Servian organization was an army. Both authors, however, have made the 
 fundamental mistake of supposing that for a time during the early republic the army 
 officiated as an assembly. * Livy xxiv. 8. 19. 
 
 6 After the inclusion of the Tribus Clustumina ; Beloch, Ital. Bund, 74 ; Smith, 
 Rom. Timokr. 58, n. 1. 
 
 6 Delbriick, Gesch. d. Kriegsk. i. 223 f. ; Smith, Rom. Timokr. 58. 
 
84 THE ROMAN ASSEMBLIES 
 
 to sixty, the Roman military age, should be about thirty per 
 cent of the population 1 — less therefore than 18,000. If the 
 ratio of juniors to seniors was about three to one, 2 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 allow- 
 ance for several hundred supernumeraries, 3 we should then 
 have no more than enough juniors to fill the eighty-four centu- 
 ries 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 influ- 
 ence of the Gallic invasion. 4 The introduction of pay, about 
 400 b.c, as has been said, 5 broke down the distinction of equip- 
 ment based on degree of wealth, and not long afterward, prob- 
 ably in the time of the Samnite wars, the phalanx gave way 
 to the manipular legion, which reached its full development in 
 the Punic wars. 6 
 
 VI. The Five Classes and their Ratings 
 
 Though originally denoting the men of the first rating, who 
 possessed the fullest equipment, 7 the term classis with an ex- 
 planatory adjective came to apply to the entire army 8 or to its 
 component parts. 9 The plural " classes " came finally to mean 
 the five census groups, represented by the five timocratic grada- 
 tions 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, 
 
 1 Beloch, Bevblk. d. griech.-rbm. Welt, 53 ; Meyer, Forsch. s. alt.Gesch. ii. 162, u. 
 3 ; Delbruck, ibid. i. 14. Ferrero's estimate {Greatness and Decline of Rome, i. 1) 
 of a total population of 150,000 seems to be too large. 
 
 2 p - 81. 8 Cf. Liers, Kriegsw. d. Alien, 10. 
 
 4 Ascribed to Camillus ; Plut. Cam. 40 ; cf. FroWlich, Gesck. d. Kriegsfuhrung 
 und Kricgskunst der Rbmer zur Zeit der Rep. ; Schiller, Rom. Alt. 708. 
 
 6 P. So; cf. 63. 6 Frohlich, ibid. 21 f. ; Schiller, ibid. 1 P. 76. 
 
 8 Fest. 189. 13; ep. 56, 225; Fabius Pictor, Annales, i, in Gell. x. 15. 3 f. 
 9 Gell. i. 1 1. 3 ; Vergil, Aen. vii. 716 : " Hortinae classes." 
 
THE CENTURIES AND THE CLASSES 85 
 
 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. 1 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 notwith- 
 standing the new development of the noun from which it is 
 derived, and especially that the early sense of the terms classi- 
 cus 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 in, 2 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 26g. a 
 
 1 Ge\\. vi (vii). 13. 3: "In M. Catonis oratione, quaVoconiam legem suasit, quaeri 
 solet, quid sit classicus, quid infra classem ; " p. 90 below. 
 
 2 CJL. i. 200 (Lex Agr.). 37 : (" Recuperatores ex ci)vibus L quei classis primae 
 sient, XI dato." 
 
 8 P. 66 f. ; cf. Fest. 249. 1 : "In descriptione classium quam fecit Ser. Tullius." 
 The attempt of Smith, Rom. Timokr., especially 140 ff.,to prove that the five classes 
 were introduced by the censors of 1 79 has nothing in its favor. It rests upon Livy 
 xl. 51. 9: "Mutarunt suffragia, regionatimque generibus hominum causisque et 
 quaestibus tribus descripserunt." This passage makes no reference to the classes. In 
 " generibus hominum " are included chiefly the " genus ingenuum " and the " genus 
 libertinum." " Causis " applies to those conditions of the libertini, such as the pos- 
 session of children of a definite age, which might serve as a ground for enrolment 
 in a rural tribe ; and " quaestibus " refers to the distinction between landowners and 
 the " opifices et sellularii " of the city. " They changed the arrangement for voting, 
 and drew up the tribal lists on a local basis according to the social orders, the con- 
 ditions, and the callings of men; " cf. Lange, Rom. Alt. ii. 265 f.; p. 354 f. below. 
 
86 THE ROMAN ASSEMBLIES 
 
 Before the censorship of Appius Claudius Caecus, 312, mili- 
 tary service within the census ratings was based on the posses- 
 sion of land, and the gradations of equipment, while they lasted, 
 must therefore have been determined by the size of the estate 
 reckoned in iugera. 1 Huschke 2 rightly inferred that the num- 
 ber 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, 2^ or 2 iugera as the respective mini- 
 mal holdings of the five divisions. Although absolute certainty 
 is unattainable, most scholars accept his conclusions as prob- 
 able. 3 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 cen- 
 turiata. 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. 4 
 
 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 
 
 Among the many objections to Smith's theory these two may be mentioned : if the 
 classes were introduced at this late historical time, (i) they would not have been 
 ascribed to Servius Tullius ; (2) they would have been adapted to the economic 
 conditions of the second century B.C., whereas in 179 they were largely outgrown by 
 the depreciation of the standard of value, the increase in the cost of living, and 
 the growth of enormous estates. The Rbmische Timokratie is ably written, but its 
 main thesis — the institution of the classes in the second century B.C. — remains 
 unproved. 1 P. 64. 
 
 2 Verf. d. Serv. 643 f. et passim. He made a mistake however in supposing that 
 from the beginning land was valued in terms of money. 
 
 8 Mommsen, Horn. Trib. ill; Rom. Staatsr. iii. 247 ff. ; Kfibler, in Pauly- 
 Wissowa, Real-Encycl. iii. 2631. When the change was made from a land to a 
 money rating, the land of the fifth class was appraised relatively higher than that of 
 the others. Neumann, Grundherrsch. d. rom. Rep. 9 f., prefers to assume 
 16 (= 2 + 14) iugera for the highest class in order to explain the often mentioned 
 estates of seven and fourteen iugera. But it is difficult to work out a consistent 
 scheme on this basis. Smith, Rom. Timokr. 78 ff. et passim, strongly objects to the 
 view in any form, as he doubts the existence of the Servian classes. In general he 
 has greatly exaggerated the difficulties of their administration. 
 
 4 Sail. lug. 86 ; Gell. xvi. 10. 14, 16 ; cf. Cass. Hem. 21 (Peter, Reliquiae, i. 102 f.). 
 
 I I I 
 
THE CENTURIES AND THE CLASSES 87 
 
 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 circu- 
 lation were henceforth reckoned as sesterces, which now became 
 the unit of value. 1 Two and a half sextantarian asses made a 
 sesterce, and four sesterces made a denarius. 2 The as con- 
 tinued 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, n,ooo. 3 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.).* But the rat- 
 ings 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 6 
 
 1 Haeberlin, in Riv. Hal. numis. xix (1906). 614 f. 
 
 2 Samwer-Bahrfeldt, Gesch. d. alt. rbm. Miinzw. 1 76 f. ; Hill, Greek and Roman 
 Coins, 47, 49, n. 1 ; Kubitschek, in Pauly-Wissowa, Real-Encycl. ii. 1509 ff. ; Hultsch, 
 ibid. v. 206; Regling, in Klio, vi (1906). 503. Babelon, Trait, d. mon. Grecq. et 
 Rom. i. 595, still holds the view that the triental as was introduced in 269 ; cf. his 
 Orig. d. la mon. 376; Mon. d. la rep. Rom. i. 37. 3 P. 66 f. 
 
 4 As silver is at present worth 51 \ cents an ounce (so quoted in New York, 
 Sept. 5, 1908), a denarius (= ^ lb. Troy) of the coinage preceding 217 is worth by 
 weight today 8J cents. A more just comparison would be based on the present 
 coined values. As a dollar contains 37 1 \ grains of silver, a denarius would be worth 
 2l£ cents ; or with a liberal allowance for the alloy, we might say about 20 cents. 
 The sesterce, J denarius, would therefore be equivalent to five cents. An estate of 
 ioo.oqfv asses of heavy weight (sesterces) would be worth about $ 5000, of the sex- 
 tantarian standard $ 2000. It is hardly possible that so large a proportion of the 
 population as was contained in the first class should average the former amount of 
 wealth to the family. In fact the purchasing power of money was enormously higher 
 than these equivalents indicate. In 430 the value of an ox or cow was legally set at 
 100 libral asses and of a sheep at ten. Reckoning a beef at the low modern value 
 of 1 45, and a sheep at $4.50, we obtain a value of 45 cents for the libral as, or 22 J 
 cents for one of 5 oz. weight (sesterce), which would give the denarius a purchasing 
 power of 90 cents. 
 
 6 Rom. Staatsr. iii. 249. In his JJislory (Eng. ed. 1900), iii. 50, he expresses 
 some doubt as to the numbers. 
 
88 THE ROMAN ASSEMBLIES 
 
 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 cor- 
 responded 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. 1 Several variations affecting the highest 
 and lowest classes are offered by other writers. Dionysius 2 
 states the appraisement of the fifth class at 12J minae, which 
 would be 12,500 asses. The usual explanation is that he is deal- 
 ing in round numbers without especial regard to accuracy, for 
 which reason Livy should be given the preference. It is doubt- 
 ful 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, 3 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. 4 The limit of 
 400 drachmas given by Polybius 5 proves a lowering of the mini- 
 mal rating between 269 and the publication of his history. 6 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, 7 the limit which he mentions 
 
 1 1. 43; cf. p. 66. a IV. 17. 2. » Plut. Popl. 21. 
 
 * The view of Goguet, Centuries, 29 (following Niebuhr), that Livy has made a 
 mistake, is not so likely. 
 
 6 VI. 19. 2 : (All must serve in war) jt\V t5>v iirb ris TcrpoKOirJos Spaxpfc tcti- 
 pitlttvwv ■ roirovs Si wapiaai ir<£>ras ei's t^v vavrmiiv. That it was the minimal rat- 
 ing of the fifth class, and not a still lower rating for military use only, is proved by a 
 statement of Sail. lug. 86, that till the time of Marius the soldiers were drawn from 
 the classes. 6 cf. Mommsen, RSm. Staatsr. iii. 251. 
 
 7 Commercially the denarius was then, after 217, worth sixteen asses; Hultsch, in 
 Pauly-Wissowa, Real-Encycl. v. 209. 
 
THE CENTURIES AND THE CLASSES 89 
 
 would be 4000 asses. Cicero states the minimal limit at 1 500 
 asses, 1 and a still lower sum of 375, mentioned by Gellius, 2 
 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, 3 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 prole- 
 tarians. 4 The limit of 375 asses, on the other hand, was far 
 below the fifth class, and had nothing to do with it. 6 The rela- 
 tion of these numbers to one another may be summarized as fol- 
 lows : 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 1 500-4000 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 6 
 states it at 1 10,000 asses, which may be a copyist's error for 
 100,000 or for 120,000; the estimate of Paulus Diaconus 7 is 
 120,000 and of Gellius 8 125,000. If the manuscripts have 
 correctly preserved these numbers, they may represent compu- 
 tations based on a varying number of iugera, from twenty-two 
 to twenty-five 9 at the rate of 5000 asses a iugerum — a valua- 
 
 1 Cic. Rep. ii. 22. 40; Gell. xvi. 10. 10. 2 XVI. 10. 10. 
 
 8 Cf. Kfibler, in Pauly-Wissowa, Real-Encycl. iii. 1522. 
 
 4 This interpretation differs slightly from that of Mommsen, Rom. Staatsr. iii. 
 
 237- 
 
 6 In like manner those possessing above 100,000 asses were at times divided into 
 groups for the distribution of military burdens according to wealth ; cf. Livy xxiv. 
 1 1. 7-9. This too has no reference to the organization of the comitia. 
 
 • N. j}. xxxiii. 3. 43 : j " Maximus census CX assium fuit illo (Servio) rege, et ideo 
 haec prima classis." 7 Fest. ep. 113. 8 VI (VII). 13. 
 
 Plut. Popl. 21 ; Huschke, Verf. d. Serv. 164. 
 
 / 
 
9 o THE ROMAN ASSEMBLIES 
 
 tion 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, 1 who states that those appraised at 10,000 drachmas 
 wore the cuirass — according to Livy 2 and Dionysius, 3 the dis- 
 tinctive equipment of the first class. 4 In the same age the Vo- 
 conian law, 169, provided that a man registered by the censors 
 as worth 100,000 asses or more should not bequeath his prop- 
 erty to a woman. 5 While speaking in favor of the measure 
 the elder Cato expounded the distinction between the classici 
 and those who were " infra classem." 6 Strictly following Cato's 
 definition, Gellius 7 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. 8 The sum of 100,000 
 sesterces, in place of asses, represented by later writers 9 as the 
 one fixed by this law, is due either to a late interpretation or to 
 
 1 VI. 23. 15. 2 1. 43. 2. » IV. 16. 2. 
 
 4 After the adoption of the as of an ounce weight in 21 7, sixteen asses of this stand- 
 ard were considered equivalent to a denarius or a drachma, which would give a rating 
 of 160,000 asses for those who wore the cuirass. But the military pay was still reck- 
 oned at ten asses to the denarius (Pliny, N. H. xxxiii. 3. 45) ; the censors seem to 
 have used the same ratio (Livy xxxix. 44. 2 f. compared with Plut. Cat. Mai. 18) ; 
 and it is therefore highly probable that in this statement Polybius intended to ex- 
 press in drachmas the value of 100,000 asses. Taken in its entirety, the passage 
 sufficiently proves that reference is to the highest class; the majority (ol 7ro\\oi) 
 of soldiers, he says, have breastplates, but those rated above 10,000 drachmas wear 
 cuirasses. If, as Belot, Rev. icon, it mon. 77 ff., imagines, the sum of 100,000 asses 
 fell below the rating of the lowest class, there would hardly have been a soldier with- 
 out the cuirass. 
 
 6 Gaius ii. 274. That registration was necessary is proved by Cic. Verr. II. i. 41. 
 104 ff . By the word " censi " Cicero does not mean to designate any group or divi- 
 sion of citizens; he simply refers to the fact of registration. P. Annius Asellus, of 
 whom he speaks, had not been registered, or in any case at that sum, and hence was 
 not technically liable to the law; but the value of his estate could be ascertained by 
 authority of a court of justice, according to Greenidge, Leg. Proctd. 95 f. Mommsen 
 held the opinion, on the contrary (AbhaT. d. Akad. d. Wiss. zu Berlin, 1863. 468 f.), 
 that the incensi were absolutely free from the law. 
 
 6 P. 85 above. 
 
 7 VI (VII). 13. For his rating of 125,000 asses for the first class, see p. 89. 
 
 8 N. 5 above. 9 Dio Cass. lvi. 10. 2; Psued. Ascon. 188. 
 
THE CENTURIES AND THE CLASSES 91 
 
 an amendment. 1 The minimal qualification of the first class 
 must therefore have continued unchanged from 269 to the pass- 
 ing of the Voconian law, 169, and the composition of the His- 
 tory of Polybius. 2 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 inter- 
 est in bringing about. Further depreciation in the weight of 
 the as, by the reduction to a half ounce through the Papirian 
 law of 89, 3 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 Dio- 
 nysius already considered, no reference is made to the valuation 
 of the intermediate classes, unless it be a passage in Livy 4 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 5 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. 6 
 
 VII. Belots Theory as to the Ratings 
 
 Notice must be taken of a theory proposed by Belot, 7 that at 
 the time of the First Punic War, owing to an economic revolu- 
 tion 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 re- 
 spectively. 8 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 
 
 1 Cf. Mommsen, Rom. Staatsr. iii. 249, n. 4; Greenidge, Leg. Proced. 95. 
 
 2 The part containing this reference was not essentially later than the enactment 
 of the Voconian law (p. 361). 8 P. 4°3- 
 
 * XLV. 15. 2. 6 Rom. Staatsr. iii. 249, n. 2. 6 P. 90, n. 4. 
 
 7 First offered in his Histoire des chevaliers, i (Paris, 1866), and afterward de- 
 fended in his Revolution economique et monetaire . . . a Rome (1885). 
 
 8 Cf. Rev. icon, et mon. 82. 
 
92 THE ROMAN ASSEMBLIES 
 
 found in the sources. For example in 214 the government 
 
 ordered 1 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 imme- 
 diately appear. The object of the order issued by the govern- 
 ment in 214 was to provide crews for the fleet of that year. 
 Although the hundred and fifty ships to be manned 2 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, 3 we should have 56,250 men 
 for the entire fleet. But according to Belot 4 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, 5 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 
 1 54,000 sailors furnished by the knights to obtain the whole num- 
 ber 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, 6 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 prop- 
 
 1 Livy xxiv. II. 7 f. 2 Ibid. § 5. 3 Marquardt, Rom. Staatsv. ii. 498 f. 
 
 * Rev. econ. et mon. 50. The Roman and Campanian (cives sine suffragio) 
 knights together amounted to 23,000 ; Polyb. ii. 24. 14. 
 
 6 About 270,000 in 220 ; Livy ep. xx. 
 
 6 Even with this understanding we shall have to assume for the requisition of 214 a 
 division between 100,000 and 300,000 — those rated at 100,000-200,000 asses furnish- 
 ing two and those at 200,000-300,000 asses three sailors. Otherwise the number of 
 sailors will be greatly in excess of the need. 
 
THE CENTURIES AND THE CLASSES 93 
 
 erty, 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 misde- 
 meanors which the rich and powerful were wont to commit. 1 
 
 VIII. The Post-Servian Equites 
 
 The classes, as developed after Servius, have now been con- 
 sidered 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, 2 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. 3 He was not paid 
 the money in advance, but was given security for the required 
 sums, 4 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 6 assigns 
 their institution to Tarquinius Priscus, Livy 6 to Servius, Plu- 
 
 1 Similar conditions exist at present in America. The monstrous luxury of the 
 few and the heavy fines recently imposed on the Standard Oil Company do not prove- 
 all Americans to be wealthy. 2 P. 61 f. 
 
 8 Livy i. 43. 9 ; Cic. Repi-ii. 20. 36 ; Fest. ep. 81, 221 ; Gaius iv. 27. 
 
 * Gaius iv. 27. 6 Rep. ii. 20. 36. 6 I. 43. 9. 
 
94 THE ROMAN ASSEMBLIES 
 
 tarch 1 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. 2 It was afterward decided to deduct 
 the aes hordearium, probably also the aes equestre, from his 
 pay. 3 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 4 
 came forward and offered to serve with their own horses. 5 This 
 is the first known instance of voluntary equestrian duty, doubt- 
 less often repeated at crises during the remainder of the re- 
 publican 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, 6 and 
 most probably their years of voluntary service were counted in 
 with their regular duty in making up the required number. 7 
 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 
 
 1 Cam. 2. This statement is valuable notwithstanding Kubitschek, in Pauly- 
 Wissowa, Real-Encycl. i. 683. 
 
 2 Payment is mentioned by Livy v. 7. 12 (403) but triple pay is first spoken of in 
 ch. 12. 12 (400); cf. Polyb. vi. 39. 12; Fest. 234. 26. 
 
 8 Polyb. vi. 39. 15. The statement of Varro, L. L. viii. 71 ("Debet igitur dici 
 . . . non equum publicum mille assarium esse, sed mille assariorum"), seems to 
 signify that in practice the cost of a public horse meant a payment to the eques of a 
 thousand asses a year ; cf. Gerathewohl, Die Reiter und die Jtittercent. 49 fT., whose 
 interpretation is preferable to that of Mommsen, Rb'm. Staatsr. iii. 257, n. 5. The 
 fact that the support of one knight was considered equal to that of three legionaries 
 (Livy xxix. 15. 7) is further evidence that the triple pay covered the purchase and 
 keep of the horse. Reference in Livy vii. 41. 8, may be to the sums (aera) for the 
 purchase and keep of the horse ; cf. Mommsen, Rom. Staatsr. iii. 257, n. 3. 
 
 4 Oionysius Hal. vi. 44. 2, assigns the first recruiting of the equites from the ple- 
 beians to the year 494, dating the event about a century too early; cf. Mommsen, 
 Rom. Staatsr. iii. 478, n. I. 6 Livy v. 7. 5. 
 
 All this may be gathered from Livy v. 7. 4-13 ; cf. Gerathewohl, Die Reiter und 
 die Rittercent. 16 fT. 1 Polyb. vi. 19. 2; Livy xxvii. 11. 14. 
 
THE CENTURIES AND THE CLASSES 95 
 
 Cannae. Their horses were taken from them, their campaigns 
 equo publico were not counted to their credit, but they were re- 
 quired to serve ten years equis privatis. 1 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. 2 It 
 should also be said that the injustice of furnishing some with 
 horses and of compelling others to go to war at their own ex- 
 pense, unless by way of punishment, was contrary to the spirit 
 of the constitution. This conclusion is supported by the elder 
 Pliny's 3 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 regu- 
 lar 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, 4 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. 5 The military force 
 could not have been doubled before the incorporation of the 
 Veientan territory early in the fourth century ; 6 most probably 
 the enlargement belongs to still later time. The increase in the 
 
 1 Livy xxvii. n. 14, 16. This passage does not refer to those who avoided duty 
 equo privato, as Mommsen, Rom. Staatsr. iii. 478, n. i, supposes. Those were pun- 
 ished who were qualified to serve equo publico but had avoided military duty alto- 
 gether. Gerathewohl, ibid. 20 f., believes that Livy has made a mistake in assigning 
 this judgment to the censors of 209, as it would much better suit the conditions of 
 214. 
 
 2 The credit of establishing this fact beyond a doubt is due to Gerathewohl, Die 
 Reiter und die Rittercent. 14-34. 
 
 s JV. H. xxxiii. I. 30: "Equitum nomen subsistebat in turmis equorum publi- 
 corum; " cf. Fest. ep. 8l : "Equitare antiqui dicebant equum publicum merere." 
 
 4 P- 75- 
 
 6 There were four legions each with 4000 infantry and 300 horse at the opening 
 
 of the First Punic War; Polvb. i. 16. 2. Four legions fought against Pyrrhus at 
 Asculum, 279; Dion. Hal. xx. I. This was the normal number for the Samnite 
 wars; cf. Mommsen, Rom. Staatsr. iii. 477. 
 
 6 Two legions of juniors was the maximal limit of Rome's military strength dur- 
 ing the period of twenty-one tribes; cf. p. 77, 84. The incorporation of the Veientan 
 territory, 387, could not at once have doubled this force. 
 
96 THE ROMAN ASSEMBLIES 
 
 infantry required a corresponding enlargement of the mounted 
 service. At least twelve hundred equites were henceforth re- 
 quired for active duty. Making allowance for reserves and in- 
 effectives, 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 re- 
 mained 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. 1 After the war with Hannibal the state, 
 drained of men and money, allowed the cavalry to dwindle. 2 
 Viewing this condition with alarm, the elder Cato 3 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 con- 
 sisting of 5200 foot and 300 horse. 4 Under Augustus there were 
 times when 5000 equites 5 equo publico took part in the parade 
 which he revived. 6 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 
 
 1 Livy xxv. 3. 1-7; cf. Gerathewohl, Die Reiter und die Rittercent. 54. The 
 sources do not suggest that the number after reaching eighteen hundred remained 
 unalterable. In Cic. Rep. ii. 20. 36 (" Deinde equitum ad hunc morem constituit, 
 qui usque adhuc est retentus") reference is not to number but to character; 
 Gerathewohl, ibid. 8 f. Mommsen's interpretation {Rom. Staatsr. iii. 259, n. 5) 
 is therefore wrong. 
 
 2 In 200 the seven legions contained twenty-one hundred equites or fewer; 
 Gerathewohl, Die Reiter und die Rittercent. 56. 
 
 3 Oral, lxiv : " Nunc ego arbitror oportere restitui (Mommsen's emendation 
 'institui' is unnecessary), quin minus duobus milibus ac ducentis sit aerum 
 equestrium." Mommsen, Rom. Staatsr. iii. 259, wrongly holds the opinion that 
 the measure failed to pass. 
 
 4 See citations collected by Gerathewohl, ibid. 56, 11. I. 
 
 6 Dion. Hal. vi. 13. 4: "En-ric tire shows that the number varied; cf. Madvig, 
 Rom. Staat. i. 171. 6 g uet- ^ ug jg_ 
 
THE CENTURIES AND THE CLASSES 97 
 
 on this point shows that they lacked definite information. 1 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. 2 
 For a time the census was that of the first class. 3 In 214 it was 
 still 100,000 asses, or not much above, as has already been 
 proved. 4 In the late republic and under the emperors the 
 minimal rating was 400,000 sesterces. 6 When it was raised to 
 this amount is unknown. 
 
 I. The Early Graeco-Italian Phalanx : Busolt, Griechische Geschichte, 
 3, ii (see Contents); Bauer, A., Griechische Kriegsaltertumer ; Droysen, H., 
 Kriegsalterthiimer der Griechen, in Hermann's Lehrb. der griech. Antiqui- 
 taten, ii. 1-74 ; Gilbert, Constitutional Antiquities of Sparta and Athens 
 (see Index and Contents) ; Lammert, E., Geschichtliche Entwickelung der 
 griech. Taktik, in JV. Jahrb. f. kl. Alt. iii (1899). 1-29 ; Die neuesten For- 
 schungen auf antiken Schlachtfeldern im Griechenland, in JV.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 ; Frohlich, 
 F., Beitrage zur Kriegsfuhrung und Kriegskunst der Romer zur Zeit der 
 Republik ; Schiller, Rom. Kriegsaltertumer, in Muller'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 Verhdltniss von Heer und Staat in 
 der rom. Republik, in Hist. Zeilschr. vii (1862). 133-58 ; Liers, H., Kriegs. 
 wesen der Alten ; Delbriick, Geschichte der Kriegskunst im Rahmen der 
 jiolitischen Geschichte, bks. i, iv, best authority ; Die romische Manipular- 
 
 1 Cic. Rep. ii. 22. 39; Livy i. 43. 8 f. ; Dion. Hal. iv. 18. 1. High birth and great 
 wealth are emphasized, but no definite rating of the class is given. Their treat- 
 ment of the subject is compatible with the view that the knights were then patri- 
 cian — a view however which these writers did not have clearly in mind. Livy's 
 statement (iii. 27. 1) that a certain patrician served in the infantry because of his 
 poverty harmonizes well with the same view; for as the aes equestre and hordea- 
 rium were not yet introduced, a poor patrician would be unable to own and keep a 
 horse. Those scholars therefore seem to be wrong who, like Grathewohl, ibid. 67, 
 following Rubino, in Zeitschr. f. d. Alterlumswiss. iv (1846). 219, refer the 
 -equestrian census to Servius Tullius. 
 
 2 P. 94. It is for about this time (403) that Livy, v. 7. 5, first refers definitely 
 to an equestrian census. 
 
 8 This fact is most clearly stated by Dion. Hal. vii. 59. 3, and is confirmed by 
 Cic. Rep. ii. 22. 39.; cf. Pliny, JV. H. xxxiii. 3. 43; for further evidence, see Belot, 
 Rev. Icon, et mon. 5 ff. 4 P. 92. 
 
 5 Hor. Ep. I. i. 57; Pliny, JV. H. xxxiii. 2. 32; Mart. iv. 67; v. 23, 25, 38; Pliny ? 
 £p. 1. 19. 2; Juv. i. 105; v. 132; xiv. 326; Suet. Caes. 38. 
 H 
 
98 THE ROMAN ASSEMBLIES 
 
 taktik, in Hist. Zeitschr. N. F. xv (1884). 239-64 ; Niese, B., Ueber Wehr- 
 verfassung, Dienstpflicht, und Heerwesen Griechenlands, ibid, xcviii (1907). 
 263-301, 473-506 ; Arnim, H.,fneditum 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 tne source of 
 the fried Vat.; Bruncke, H., in AT. Philol. Rundschau (1888) 40-4 ; Miiller- 
 Deecke, Etrusker, i. 364-72 ; Muller, J. J., Studien zur rom. Verfassungs- 
 geschichte, in Philol. xxxiv (1876). 96-136 ; Helbig, Sur les attributs des- 
 saliens, in Mimoires de Vacademie des inscriptions et belles-lettres, xxxvii 2 
 (1905). 205-76 ; on the same subject, in Comptes rendus de Vacad. etc. 1904- 
 ii. 206-12. 
 
 II. The Military and Political Centuries and Classes : Niebuhr,. 
 B.G.,Rom. Geschichte,!. 451-51 1, Eng. 197-236; Schwegler, Rom. Geschichte, 
 I. bk. xvii ; Huschke, Ph. E., Verfassung des K'onigs Servius Tullius, especially 
 chs. iv, vii, viii ; Peter, C, Epochen der Verfassungsgeschichte der rom. Re- 
 publik; Studien zur rom. 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 ; Rom. Tribus,, 
 59-72, 121-143, 160 ff. ; Rom. Staatsr. iii. 240 ff. ; Rom. Forschungen, i. 134-- 
 40 ; Willems, P., Droit public Rom. 40, 43, 84-92 ; Mispoulet, J. B., fnstitu- 
 tions politiques des Romains, i. 203-7 ; Lange, L., Rom. Altertumer, i. 
 522-66 ; Cicero iiber die servianische Centurienverfassung, in Kleine Schrif- 
 ten, i. 227-234 ; Herzog, Geschichte und System der rom. 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 Centurienverfas-- 
 sung des Servius Tullius; Genz, H., Servianische Centurien- Verfassung; 
 Soltau, W., Altrom. Volksversammlungen, 229-96 ; Ullrich, J., Centuriat- 
 comitien ; Le Tellier, M., L 1 Organisation centuriate et les cornices par centuries, 
 ch. i ; Hallays, A., Les cornices a Rome; Morlot, E., Les cornices ilectoraux, 
 ch. iii ; Moye, M., Elections politiques sous la republique Rom. chs. iii, iv, vii ; 
 Muller, ibid. ; Neumann, K. J., Grundherrschaft der rom. Republik, die- 
 Bauernbefreiung, und die Entstehung der servianischen Verfassung, specu- 
 lative but very suggestive; Greenidge, A. H. J., Roman Public Life, 65-76; 
 Legal Procedure of Cicero^s Time, 307 ff. ; Schott, P. O., Rom. Geschichte im 
 Lichte der neuesten Forschungen; Smith, F., Rom. Timokratie ; Pardon, De~ 
 aerariis; Maue, H., Der praefectus fabrum; Bloch, A., Le praefectus 
 Fabrum, pt. ii, in Mush Beige, ix (1905). 352-78; Babelon, E., Monnaies de- 
 la rtpublique Rom. I. pts. i, ii ; Traiti des monnaies Grecq. et Rom. i ; Ori- 
 gines de la monnaie ; Samwer-Bahrfeldt, Geschichte des alten rom. Munzwe- 
 sens; Hill, G. F., Greek and Roman Coins, 45-9; Regling, Zum dlteren 
 rom. undital. Munzen, in Klio, vi (1906). 489-524 ; Belot, E., De la revolu- 
 tion Iconomique et monitaire . . . a 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 . 
 
THE CENTURIES AND THE CLASSES 99 
 
 (idem) ; Capite censi, iii. 1521-3 (Kiibler) ; Census, iii. 1914-24 (Kubitschek) ; 
 Centuria, iii. 1952-62 (Kiibler, Domazewski, Kubitschek) ; Classis, iii. 2630- 
 32 (Kiibler); Collegium, iv. 380-480 (Kornemann) ; Comitia, iv. 679-715 
 (Liebenam) ; Carnitines, iv. 1602 f. (Fiebiger) ; Denarius,v. 202-15 (Hultsch) ; 
 articles in Daremberg et Saglio, Diet. : Accensus, i. 16 ff. (Humbert and 
 others) ; As, i. 454-64 (Lenormant) ; Census, ii. 1003-17 (Humbert) ; Cen- 
 turia, ii. 1017 (idem) ; Classis, i. 1224 f. (idem) ; Cornices centuriates, s. 
 Comitia, ii. 1378 ff. (idem) ; articles in Ruggiero, E., Dizionario epigrafico: 
 Accensus, i. 18-21 ; Aerarius, i. 31 1-3; 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, 7%«. /*'«£'. to. <r/. 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, Rom. Alt. i. 444-7, 523, 547-51 ; Recension uber K. 
 Niemeyer, De equitibus romanis commentatio historica, in Kleine Schriften, i. 
 113-37; Mommsen, Rom. Staatsr. ii. 397-400; iii. 106-9, 253-62 ; Madvig, 
 J. N., Verfassung und Verwaltung des rom. Staates, i. 155-82 ; Mispoulet, 
 J. B., Etudes d' 1 institutions Rom. 151-226 ; Bloch, G., Origines du sinat 
 Rom. 46-95 ; Marquardt, J., Historiae equitum romanorum libri iv ; Gomont, 
 M. H., Chevaliers Rom. depuis Romulus jusqu'a Galba ; Niemeyer, K., De 
 equitibus romanis commentatio historica ; Rubino, J., Ueber das Verhdltniss 
 der VI Suffragia zur rom. Ritterschaft, in Zeitschr. f. d. Alter iumswiss. iv 
 (1846). 212-39 i Bertolini, C. I., T celeres ed il tribunus celerum; Belot, E, 
 Histoire des chevaliers Rom. 2 vols. ; Gerathewohl, H., Die Reiter und die 
 Rittercenturien zur Zeit der rom. Republik, valuable ; Kubitschek, J. W., 
 Aes equestre, in Pauly-Wissowa, Real-Encycl. i. 682-4 i Kiibler, Equites Ro- 
 mani, ibid. vi. 272-312 ; Martin, A., Equites (Greek), in Daremberg et Saglio, 
 Diet. ii. 752-71 ; Cagnat, R., Equites (Roman), ibid. ii. 771-89; Helbig, W., 
 Observations sur les t7T7reTs Atheniens, in Comptes rendus de Vacademie des 
 inscriptions et belles-lettres, 1900. 516-22 ; Les vmr&i Athiniens, in Memoir es 
 de I'acad. etc. xxxvii 1 (1904). 157-264 ; Die Mrereis und ihre Knappen, in 
 Jahreshefte des osterr. archaol instituts, viii. 2. 185-202 ; Peterson, E., Zu 
 Helbigs iiriran, etc., ibid., 125 f. ; Helbig, Zur Geschichte des rom. Equitatus, 
 A. Die Equites als berittene Hopliten, in Abhdl. d. bayer. Akad. d. Wiss. 
 xxiii (1905). 267-317 ; Die Castores als Schutzgotter des rom. Equitatus, in 
 Hermes, xl (1905). 101-15 ; Contribution a Vhistoire de P equitatus, va. Comptes 
 rendus de Vacad. des inscriptions et belles-lettres, 1904. ii. 190-201 ; Pellegrini, 
 G., Fregi arcaici etruschi in terracotta, etc., in Milani, L. A., Studi e materials 
 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. 1 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. 2 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; 3 and in early times a Roman always resorted to them 
 before beginning any important business. 4 Though it was per- 
 missible to consult any deity, 5 the greatest weight attached to 
 the approval of the supreme god Jupiter. 6 
 
 1 Serv. in Aen. iii. 89; vi. 190; xii. 259. 
 
 2 Cic. Div. 16. 29 f.: " Dirae, sicut cetera auspicia, ut omina, ut signa, non causas 
 adferunt, cur quid eveniat, sed nuntiant eventura, nisi provideris." The last state- 
 ment means only that a misfortune will happen, if an evil omen is unheeded. Cic. 
 Div. ii. 33. 70: "Non enim sumus ii nos augures, qui . . . futura dicamus; " cf. 
 Lange, R'orn. Alt. i. 331; Aust, Relig. d. Romer, 198. 
 
 3 Serv. in. Aen. iii. 20: "Auspicari enim cuivis . . . licet." 
 
 4 Cic. Div. i. 16. 28 : " Nihil fere quondam maioris rei nisi auspicato ne privatim 
 quidem gerebatur, quod etiam nunc nuptiaruni auspices declarant, qui re omissa 
 nomen tantum tenent;" 46. 104; Val. Max. ii. 1. 1. On the nuptial auspices, see 
 De Marchi, Cult.priv. di Rom. i. 152-5. 
 
 6 Romulus consulted the rest of the gods along with Jupiter; Dion. Hal. ii. 5. I. 
 
 6 The public auspices were Jupiter's alone ; Cic. Leg. ii. 8. 20. So were the aus- 
 pical chickens; Div. ii. 34. 72; 35. 73; cf. Mommsen, Rom. Staatsr. i. 77, u. 2. 
 In historical time the sign called for was Jupiter's lightning; Cic. Div. ii. 18. 42; 
 
 100 
 
THE AUSPICES 101 
 
 The plebeians, who as long as they were excluded from the 
 magistracies were necessarily debarred from the auspicia pub- 
 lica, 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 per- 
 formance of any other sacred rite in private plebeian houses. 
 Not only is it stated that all had a right to auspicate, 1 but the 
 formula for summoning troops given by Cincius 2 implies that 
 the soldiers, who were mainly plebeian, were accustomed to 
 perform the rite. We find accordingly the elder Cato, a plebe- 
 ian, attending to the ceremony in his own home. 3 The patri- 
 cians, 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. 4 
 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 patri- 
 cian why a plebeian could not be made consul, the reply was 
 that no plebeian had the auspices, reiterating that the decem- 
 virs had forbidden conubium to prevent the disturbance of the 
 ceremony by uncertainty of birth. 5 Reference might here be 
 simply to the auspicia publica, with which alone the consul was 
 concerned. However this may be, the patrician claim was in- 
 dignantly repudiated by the plebeians, and the historian can 
 say no more than that it was "perhaps true." Another pas- 
 sage from Livy usually interpreted in support of the theory 
 
 Vatin. 8. 20; Phil. v. 3. 7. The epithet Elicius, notwithstanding Varro, Z. L. vi. 
 95; Livy i. 20. 7; 31. 8, does not find its explanation in the auspices; Aust, in 
 Roscher, Lex. Myth. ii. 656 ff.; Wissowa, Relig. u. Kult. d. Rom. 106. 
 
 1 P. 100, n. 3. 2 In Gell. xvi. 4. 4. 
 
 8 Cato, De sacrilegio commisso, in Fest. 234. 30. No one could imagine Attus Na- 
 vius, the swineherd, to have been a patrician, and yet he was the most famous of 
 private augurs; Cic. Div. i. 17. It is significant, too, that the great authority on 
 private auspices, P. Nigidius Figulus, author of Augurium privatum in several 
 books (Gell. vii. 6. 10), was a plebeian. 
 
 4 Livy iv. 2. 5 f. 6 Livy iv. 6. 1 f. 
 
ioz THE ROMAN ASSEMBLIES 
 
 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 aus- 
 pices, 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." x This passage is perfectly intelligible to one who 
 bears in mind that in the late republic private auspices had 
 disappeared, 2 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. 3 In the quota- 
 tion 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. 4 
 This claim they had the effrontery to make despite the fact that 
 plebeian consuls had been taking public auspices for more than 
 
 1 Livy vi. 41. 5 f. 
 
 2 Cic. Div. ii. 36. 76 : " Nos, nisi dum a populo auspicia accepta habemus, quam 
 multum iis utimur ? " i. 16. 28. 
 
 3 Rubino, Rom. Verf. 46, n. 2, has pointed out that the phrase auspicia publica oc- 
 curs only in Livy iv. *. 5, where he believes it to be used in a special sense. In the 
 time of Cicero no one but an antiquarian ever thought of any other kind of auspices. 
 
 4 Livy x. 8. 9. 
 
THE AUSPICES 103 
 
 sixty years. In the pride of their blood they claimed that theirs 
 alone were strictly legal (iustum). Notwithstanding such par- 
 tisan assertions the facts thus far adduced lead unmistakably 
 to the conclusion that the plebeians equally with the patricians 
 enjoyed the right to private auspices. 1 
 
 II. Auspicia Publico, Impetrativa 
 
 The right to public auspices belonged primarily to patrician 
 magistracies 2 — 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 appoint- 
 ments to such offices were auspicated ; 3 and their incumbents 
 were expected to seek the previous approval of Jupiter for every 
 important act of their administration.* The king, interrex, dicta- 
 tor, consuls, praetors, and censors had the auspicia maxima ; the 
 others the minora. 6 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. 6 For the exercise of a 
 function properly belonging to a magistracy the incumbent per- 
 
 1 The usual view, represented by Mommsen, Rom. Staatsr. i. 89, n. 1, is that the 
 plebeians did not possess this right originally but acquired it later; cf. also Wissowa 
 in Pauly- Wissowa, Real-Encycl. ii. 2581; Di Marchi, Cult. priv. di. Rom. i. 233. 
 This hypothesis not only lacks support, but is also vitiated by the fact that at the 
 time of the supposed equalization private auspices must have been declining, as 
 Cicero found them extinct. 
 
 The treatment of private auspices here given is supplementary to the study of the 
 social classes made in ch. ii. 
 
 2 Messala, in Gell. xiii. 15. 4; Fest. 157. 21; Rubino, Rom. Verf. 71 ff.; Bouche- 
 Leclerq, in Daremberg et Saglio, Diet. i. 580. 
 
 • Cic. Leg. iii. 3. 9; Livy vi. 41. 6; viii. 23. 15 f. 
 
 4 Mommsen, Rom. Staatsr. i. 96 ff. 
 
 6 Messala, De auspiciis, i, in Gell. xiii. 15. 4; Bouche-Leclerq, ibid. ii. 581. 
 
 6 Messala, ibid. 
 
104 THE ROMAN ASSEMBLIES 
 
 formed the ceremony at his own will and pleasure, unless ex- 
 pressly forbidden by a superior; 1 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. 2 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. 3 It seems 
 probable that the tribunes originally did not have the right as 
 they were not magistrates ; but when they came to be so con- 
 sidered, they acquired the auspicium. All magistrates — neces- 
 sarily including the tribunes — who convoked the senate had 
 previously to perform the ceremony ; 4 Cicero 5 seems to include 
 the tribunes among the magistrates who had the auspicium ; 
 and as further proof the very expression " patriciorum (magis- 
 tratuum) auspicia " 6 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. 7 
 
 1 As when for instance the consul forbids the minor magistrate to " watch the sky " 
 on an appointed comitial day; Gell. xiii. 15. I : "In edicto consulum, quo edicunt, 
 quis dies comitiis centuriatis futurus sit, scribitur ex vetere forma perpetua : ne quis 
 magistratus minor de caelo servasse velit." 
 
 2 Commentarium Anquisitionis of a quaestor, in Varro, L. L. vi. 91 : "Auspicio 
 operam des et in templo auspices, dum aut ad praetorem aut ad consulem mittas 
 auspicium petitum." This passage shows that the quaestor, though asking permis- 
 sion, himself holds the auspices. 
 
 8 The first alternative is held by Mommsen, Rom. Staatsr. i. 89, whereas Wissowa, 
 in Pauly- Wissowa, Real-Encycl. ii. 2584, is inclined to the latter. 
 
 * Gell. xiv. 7. 4, 8, quoting Varro. 
 
 6 Zig-. iii. 3. 10: "Omnes magistratus auspicium iudiciumque habento." The 
 previous paragraph is concerned with the tribunes, and in this citation the use of 
 iudicium instead of imperium points to the tribunes. It is hardly possible that 
 Cicero in his Laws would give the tribunes a right they did not possess. 
 
 6 In Gell. xiii. 15. 4. Wissowa, in Pauly- Wissowa, Real-Encycl. ii. 2583, seems 
 therefore to be incorrect in excluding the tribunes from the right. 
 
 7 In stating that the tribunes were given the right to take auspices for their assem- 
 blies, Zonaras, vii. 19, evidently confuses the oblativa with the impetrativa. It is an 
 
THE AUSPICES 105 
 
 For assistance in auspication the magistrate summoned any 
 person he pleased, who was rarely if ever a public augur. 1 An 
 augur, 2 whether private or official, was a person who knew 
 how to hold and to interpret auspices. 8 A college of public 
 augurs 4 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. 6 The members of the college were neither 
 
 interesting fact that according to Cicero the first college of tribunes was elected under 
 auspices in the comitia curiata; Frag. A. vii. 48 : " Itaque auspiciato postero anno 
 tr. pi. comitiis curiatis creati sunt." 
 
 1 Cic. Div. ii. 34. 71 : " Hie apud maiores nostras adhibebatur peritus, nunc 
 quilubet." As in the time of Cicero auspices had come to be a mere pretence 
 (p. 118), an attendant without skill or scruple would best serve the magistrate's 
 purpose. In Livy iv. 18. 6, the augurs see the omen for the dictator, but some 
 other attendant might serve the purpose. Being a paid functionary, the bird-seer 
 mentioned by Dion. Hal. ii. 6. 2 as assisting in an auspication could not have 
 been a public augur ; Valeton, in Mnemos. xviii. 406 ff. ; Wissowa, Relig. «. 
 Kult. d. Romer, 456, u. 8. The magistrate requested assistance in the following 
 form: "Q. Fabi, te mihi in auspicio esse volo; " and the reply was "Audivi; " Cic. 
 Div. ii. 34. 71; cf. § 72. From this formula it appears that the person summoned 
 did not hold, but assisted in, the auspices; Lange, Rom. Alt. i. 338. The auspices 
 are always said to belong not to the augurs, but to the magistrates; Cic. Leg. 
 iii. 3. IO; Messala, in Gell. xiii. 15. 4. Instead of remaining with the augurs in 
 the city the auspices followed a duly elected consul into the field; Livy xxii. I. 6. 
 Auspicari is strictly a function of the magistrate (cf. Varro, Rer. hum. xx, in 
 Non. Marc. 92) though the word is sometimes applied to the observation made 
 by augurs (Fest. ep. 18), whose function is properly termed augurium, augurare; 
 Aust, Relig. d. Romer, 200 f.; Wissowa, in Pauly-Wissowa, Real-Encycl. ii. 2580 f. 
 
 2 The derivation is unknown. Wissowa, in Pauly-Wissowa, Real-Encycl. ii. 
 2313 f., summarizes the principal theories. Probability seems to favor the view 
 that it is a combination of the root of avis with a verbal noun meaning " to see " 
 or the like; Walde, Lat. etym. Wbrtcrb. 55. 
 
 8 Attus Navius from his boyhood was renowned for his augural skill; Cic. Div. i. 
 17; Livyi. 36; Dion. Hal. iii. 70 f.; cf. Lange, Rom. Alt. i. 333. Romulus, too, 
 is said to have been an excellent augur; Remus possessed similar skill (Cic. Div. i. 
 2. 3; 17. 30; 40. 89; Ennius, in Cic. Div. i. 48. 107), and in the opinion of 
 Livy, i. 18. 6; iv. 4. 2, there was no augural college before Numa. 
 
 4 Varro, L. L. v. 33; Cic. Fam. vi. 6. 7; Senec. 18. 64; Fest. 161. 20; CIL. vi. 
 503, 504, 511, 1233, 1449; x. 211; Wissowa, in Pauly-Wissowa, Real-Encycl. ii. 2314. 
 
 6 Cic. Rep. ii. 9. 16; 14. 26; Livy x. 6. 7; ep. lxxxix; Marquardt, Rom. Staatsv. 
 iii. 398; Lange, Rom. Alt. i. 334 f.; Wissowa, Relig. u. Kult. d. Romer, 451; also 
 his article in Pauly-Wissowa, Real-Encycl. ii. 2316 f. In adding a supernumerary 
 (Dio Cass. xlii. 51. 4) Caesar set an example extensively followed by the principes; 
 cf. Dio Cass. Ii. 20. 3; Wissowa, ibid. ii. 2317. 
 
106 THE ROMAN ASSEMBLIES 
 
 magistrates 1 nor prophets. They were rather the wise, 2 experi- 
 enced 3 keepers and expounders of a sacred science and art 4 — 
 the "interpreters of Jupiter All-Great and Good." 6 Having 
 to do with religion, they were sacerdotes, like the pontiffs, 
 though not offerers of sacrifice (flamines). 6 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. 7 In attending to such duties (auguria) only 
 did they exercise their right to the auspices. 8 In a dependent 
 though far more influential, position they acted as the profes- 
 sionally skilled advisers and assistants of the magistrates in 
 all matters of peace and war. 9 If a magistrate was not himself 
 an augur, 10 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 magis- 
 trate to whom it belonged or the senate could refer the case 
 to the college of augurs, which thereupon gave an opinion 
 
 1 As distinguished from magistrates they were privati; Cic. Div. i. 40. 89. 
 
 2 Auctor Incertus (Huschke) p. 4 : " Collegium augurum ordo hominum pruden- 
 tum erat, qui prodigiis publicis praeerant ; " cf. Lange, Rom. Alt. i. 330. 
 
 8 Cic. Div. ii. 34. 71 f.; cf. Livy xli. 18. * Hut. Q. R. 99. 
 
 6 Cic. Leg. ii. 8. 20; Phil. xiii. 5. 12. 
 
 6 They are never called flamines, and no flamen was attached to their office; 
 "Wissowa, Relig. «. Kult. d. R'omer, 451. The great sacerdotal colleges were more 
 political than religious, and the college of augurs was the most thoroughly political 
 of all; Bouche-Leclerq, in Daremberg et Saglio, Diet. i. 564. 
 
 7 Cic. Leg. ii. 8. 20; Dio Cass, xxxvii. 24 f.; Aust, Relig. d. R'omer, 199; Wissowa, 
 in Pauly- Wissowa, Real-Encycl. ii. 2325-30. 
 
 8 Fest. 333. 9: "Spectio in auguralibus ponitur pro aspectione; (data est) 
 et nuntiatio, qui omne ius auspiciorum habent, auguribus non spectio dumtaxat, 
 quorum consilio rem gererent magistratus, ut possent impedire, nuntiando quae- 
 cumque vidissent; privatis spectio sine nuntiatione data est, ut ipsi auspicio rem 
 gererent, non ut alios impedirent nuntiando.'' — Valeton's emendation, in Mnemos. 
 xviii (1890). 45s f. 
 
 9 Cic. Leg. ii. 8. 21 : "Quique agent rem duelli quique domi popularem, auspi- 
 cium praemonento ollique obtemperanto ; " cf. Lange, Rom. Alt. i. 332. 
 
 10 It generally happened that both the augural and pontifical colleges were filled 
 by statesmen, so that Cicero could lay down the principle that the sacred and 
 political offices were held by the same persons; Div. i. 40. 89; cf. Wissowa, in 
 Pauly-Wissowa, Real-Encycl. ii. 2321. 
 
THE AUSPICES 107 
 
 in the form of a decree. The senate then acted on the 
 matter according to its judgment. 1 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. 2 These considerations account for the great 
 importance attaching to the presence of augurs in the comitia — 
 a subject to be treated in another connection. 3 
 
 The service of augurs was most needed in establishing the 
 terrestrial templum 4 — a carefully marked out, oriented spot 
 which the magistrate occupied while performing the rite. 5 
 Whereas the commander of an army generally made use of 
 chicken auspices (signa ex tripudiis), which did not require 
 their assistance, 6 they were doubtless always called upon to 
 
 1 Livy iv. 7.3; viii. 23. 14-17; xxiii. 31. 13; xlv. 12. 10; Cic. Phil. ii. 33.83; 
 Leg. ii. 12. 31; N. D. ii. 4. II. A defect in the auspicia impetrativa was expressed 
 by the formula "vitio tabernaculum captum esse " (Cic. N. D. ii. 4. 11; Div. i. 17. 
 33; Livy iv. 7. 3; Serv. in Aen. ii. 178), whereas the phrase "vitio creatum esse" 
 or the like (Livy viii. 15. 6; 23. 14; xxiii. 31. 13; xlv. 12. 10; Plut. Marctll. 4) de- 
 noted a failure to take the auspices or to heed unfavorable omens; Wissowa, in Pauly- 
 Wissowa, Real-Encycl. ii. 2334. On the annulment of laws through augural decrees, 
 see Cic. Leg. 8. 21 ; 12.31; Div. ii. 35. 74. The decree was no more than an opinion, 
 on which the senate acted; Rubino, Rom. Verf. 88. n. 3; Aust, Relig. d. Rdmer, 201. 
 
 2 An example of such boldness was that of C. Flaminius; Livy xxi. 63; cf. Plut. 
 Marcell. 4; Zon. vii. 20. For the case of Appius Claudius Pulcher, see Livy ep. 
 xix; Polyb. i. 52. 8 P. 112. 
 
 4 Cic. Leg. ii. 8. 21. Strictly it was the templum minus as distinguished from 
 the templum magnum, a region of the sky; Varro, L.L. vii. 7; Fest. 157. 24; 
 Serv. in Aen. i. 92. 
 
 8 Varro, L. L. vi. 86, 91. It was always rectangular, and was usually covered with 
 a tent; Fest. 157. 24; Serv. in Aen. ii. 512; iv. 200; Nissen, Templum, 162 ff. ; 
 Wissowa, Relig. «. Kult. d. Rdmer, 455; in Pauly- Wissowa, Real-Encycl. ii. 2337 ff.; 
 Valeton, in Mnemos. xx (1892). 338-90; xxi. 62-91, 397-440; xxiii. 15-79; xxv. 
 93-144, 361-385; xxvi. 1-93; Bouch£-Leclerq, in Daremberg et Saglio, Did. i. 554 f. 
 
 6 When wars were waged in the immediate vicinity of Rome the augurs could 
 easily accompany the commander; cf. Livy iv. 18. 6; Cic. Leg. ii. 8. 21. But they 
 certainly did not often go as far as Samnium; cf. Livy viii. 23. 16; ix. 38. 14. 
 Though the augurs remained at Rome, the auspices followed the commander into 
 the field; Livy xxii. I. 6; p. 105, n. I. 
 
108 THE ROMAN ASSEMBLIES 
 
 institute templa in or near the city. 1 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, 2 beyond which, probably extending to the first 
 milestone, 3 lay a zone termed ager effatus, 4 whose boundaries 
 were marked by cippi. 6 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, Gabi- 
 nus, peregrinus, hosticus, and incertus. 6 For the comitia the 
 two inner regions were alone important: (i) 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, 7 or more strictly the brook Petronia, 8 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 cere- 
 mony that the word auspicium is derived. 9 Legend accordingly 
 asserts that Romulus founded the city on the Palatine under the 
 auspices of twelve vultures. 10 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 
 
 1 Livy iii. 20. 6; Aust, Relig. d. Romer, 201. 
 
 2 Gell. xiii. 14. 1; Varro, L.L. v. 143; Wissowa, Relig. u. Kult. d. Romer, 456, 
 n. 1. 8 Wissowa, in Pauly-Wissowa, Real-Encyd. ii. 2339. 
 
 4 Serv. in Aen. vi. 197; Varro, L. L. vi. 53; Wissowa, Relig. u. Kult. d. Romer, 
 456; also his article in Pauly-Wissowa, Real-Encyd. ii. 2339. 
 
 5 Varro, L. L. v. 143; Cic. Leg. ii. 8. 21 ; CIL. vi. 1233; Wissowa, Relig. u. Kult. 
 d. Romer, 456 and notes. 6 Varro, L.L. v. 33. 
 
 ' The elder Tiberius Gracchus vitiated the election of his successors in the con- 
 sulship by forgetting to renew the auspices, when, after entering the city to preside 
 over the senate, he recrossed the pomerium to hold the election in the Campus; Cic. 
 N.D. ii. 4. 11; Div. i. 17. 33; cf. Tac. Ann. iii. 19. 
 
 8 Fest. 250. 12; 157. 29; cf. Mommsen, Rom. Staatsr. i, 97, n. I; Valeton, in 
 Mnemos. xviii (1890). 209 f. The reason for the auspication on such occasions is 
 differently stated by the authorities, but the interpretation given by Jordan-Hiilsen, 
 Top. d. Sladl Rom, I. iii. 472 f., that this brook marked the boundary of the city 
 auspices, seems preferable. 
 
 9 Avispex, auspex, bird-seer; Wissowa, in Pauly-Wissowa, Real-Encyd. ii. 2580. 
 10 Livy i. 7. 1. 
 
THE AUSPICES 109 
 
 thunder. 1 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 under- 
 takings during the entire day. 2 The effect of heavenly signs 
 on assemblies of the people, however, was peculiar. Not only 
 were comitia and contiones interrupted by storms ; 3 not only was 
 it impious to hold an assembly while it was lightning or thun- 
 dering, 4 but even while the magistrate was auspicating at day- 
 break, 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. 5 Some favorable comitial sign the mag- 
 istrate was supposed to perceive, 6 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, dedi- 
 cated for all time ; 7 for assemblies in the comitium the rostra, 
 also a templum ; 8 and for the comitia centuriata the president's 
 platform in the Campus Martius. 9 Not only patrician magis- 
 trates but also tribunes of the plebs occupied templa in transact- 
 ing business with the people. 10 
 
 1 Fest. ep. 64; Cic. Div. ii. 33. 71 : " Haec certe quibus utimur, sive tripudio sive 
 de caelo" (the auspicia tripudio being used in the military sphere, leaving only the 
 auspicia de caelo for the city); cf. i. 16. 28; Mommsen, Rom. Staatsr. i. 79, n. 1; 
 Aust, Rtlig. d. Romer, 203; Wissowa, in Pauly-Wissowa, Real-Encyd. ii. 2333. 
 
 2 Dio Cass, xxxviii. 13. 3. Lightning from left to right especially in a clear sky 
 was favorable; Dion. Hal. ii. 5. 2; Verg. Aen. ii. 692; vii. 141; ix. 628 (on the last, 
 see Servius). A thunderclap was unfavorable to one entering office; xxiii. 31. 13; 
 Flut. Marcell. 12; cf. Mommsen, Rom. Staatsr. i. 80, n. 2. 
 
 8 Tac. Hist. i. 18. * Cic. Div. ii. 18. 42. 
 
 6 Cic. Div. ii. 35. 74; 18. 43; Dio Cass, xxxviii. 13. 3 f. 
 
 Censoriae Tabulae, in Varro, L. L. vi. 86 : " Ubi noctu in templum censor aus- 
 picaverit atque de caelo nuntium erit, praeconi sic imperato ut viros vocet." 
 
 7 Wissowa, in Pauly-Wissowa, Real-Encycl. ii. 2585. The auguraculum was doubt- 
 less used only by the augurs, not as Mommsen {Rom. Staatsr. i. 103, n. 2) supposes, 
 by the magistrates. 
 
 * Livy viii. 14. 12 ; Cic. Vatin. 10. 24 ; " In rostris, in illo inquam augurato templo 
 ac loco." 
 
 9 Varro, L.L. vi. 91; Val. Max. iv. 5. 3; Cic. Rab. Perd. 4. 11; Wissowa, in 
 Pauly-Wissowa, Real-Encycl. ii. 2585 f. 10 Valeton, in Mnemos. xxiii (1895). 2 ^ "• 
 
no THE ROMAN ASSEMBLIES 
 
 Between midnight and morning a on the day of assembly the 
 magistrate repaired to the templum. 2 There, placing himself on 
 a solid 3 seat at the door, usually facing eastward, he watched 
 the heavens (spectio). Meanwhile he first asked the attendant, 
 who always sat near,* whether there was silence. 5 If the 
 answer was affirmative, he prayed Jupiter for a sign, which he 
 described in a formula termed legum dictio, 6 whereupon the 
 attendant declared he saw it. 7 In case of non-appearance of the 
 sign or of a disturbance of the observation, the auspication was 
 deferred to another morning. 8 Before the time of Cicero, how- 
 ever, the ceremony had been so reduced to a pretence as practi- 
 cally to eliminate the possibility of failure. 9 
 
 Both curiate 10 and centuriate 11 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, 12 plebeian magistrates 
 (tribunes and aediles of the plebs) did not. 13 
 
 As to whether condones were auspicated we are not clearly 
 informed. The question concerns those only which were held 
 by patrician magistrates. The auspication of comitia neces- 
 sarily extended to the contio immediately preceding. 14 It is 
 
 1 Censorial Tabulae, in Varro, L. L. vi. 86; Livy viii. 23. 15; x. 40. 2. 
 
 3 The auspices had to be taken on the day the business was to be transacted, 
 counting the day from midnight to midnight ; Gell. iii. 2. 10; Consorinus xxiii. 4. 
 
 3 Verrius, in Fest. 347. 17; Serv. in Aen. ix. 4 ; Statius, Theb. iii. 459. Romulus, 
 however, stood upright; Dion. Hall. ii. 5. 1. * P. 105. 
 
 5 Silence was essential to perfect auspices; Fest. 348. 29; ep. 64; livy viii. 23. 15; 
 ix. 38. 14; x.40. 2; Pliny, Wl .& viii. 57. 223. 6 Serv. in Aen . iii. 89 ; Livyi. iS. 9. 
 
 7 Cf. Livy xli. 18. 14. 8 Cf. Livy ix. 38. 15; 39.1. 9 Cf. p. 115, 118, n. 2. 
 
 loiivyv. 52. 15; ix.38.15f.; 39.1; Dion.HaLix.41. 3; Cic. Ait. ii. 7. 2; 12. I; 
 viii. 3. 3. Hoffmann, Patric. u. pleb. Curien, 29 ff., is of the opinion that the assem- 
 bly which passed the lex curiata was not auspicated, his idea being that the lex curi- 
 ata itself conferred the ins auspiciorum publicorum. There is no ground, however, 
 for either of these suppositions. 
 
 11 Gc N. D. ii. 4. ii; Dion. Hal. vii. 59. 2. On the censorial auspication of the 
 comitia centuriata for the lustrum, see Varro, Z. L. vi. 86. Mommsen, Rom. Staatsr. 
 i. 98, n. 6, supposes this to be the auspication of the censor's entrance into office (cf. 
 81, n. 1), believing that assemblies which did not vote were unauspicated. But cf. 
 p. Ill, n. I below. 
 
 13 Dio Cass. liv. 24. I; Gc. Fam. vii. 30. I; cf. Varro, R. R. iii. 2. I. 
 
 13 Dion. Hal. ix. 41. 3; 49. 5. 
 
 14 This is shown by the Commcntarium Anquisitionis of M. Sergius, a quaestor, in 
 Varro, L. Z. vi. 91. 
 
THE AUSPICES m 
 
 known, too, that the censors auspicated the lustral gathering of 
 the centuries, 1 hence we may infer that magistrates and sacer- 
 dotes were accustomed to take auspices for formal religious 
 assemblies. 2 With these exceptions contiones were doubtless 
 held without auspices by patrician as well as by plebeian magis- 
 trates. 
 
 III. Auspicia Publica Oblativa 
 
 If Jupiter had approved the holding of an assembly, the mag- 
 istrate 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 sanc- 
 tioned; and the warning omen might come at any time before 
 the act was completed. Sometimes the magistrate himself dis- 
 covered, or for the accomplishment of his purpose pretended to 
 discover, the evil omen. When for instance Pompey was hold- 
 ing 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. 3 Sometimes the magistrate was informed of the 
 omen by (i) a private person, (2) an augur, or (3) another 
 magistrate. In the first two cases the report was termed nunti- 
 atio, in the third obnuntiatio. 4 Information received from a 
 
 1 Censorial Tabulae, in Varro, L. L. vi. 86 f. : " Ubi noctu in templum censor 
 ; auspicaverit atque de caelo nuntium erit . . . turn conventionem habet qui lustrum 
 
 conditurus est." Mommsen's interpretation {Rom. Staatsr. i. 81, n. i, 98, n. 6) 
 which applies these auspices to the censor's entrance upon his office seems forced. It 
 is not necessary, however, to suppose that this magistrate had to renew the auspices 
 for every day of the census-taking ; Mommsen, ibid. i. 113, n. 4. 
 
 2 The current view (cf. Lange, Rom. Alt. ii. 718; Mommsen, Rom. Staatsr. i. 98; 
 Karlowa, Rom. Rechtsgesch. i. 380; Liebenam, in Pauly-Wissowa, Real-Encycl. iv. 
 1 1 50) that no contio was auspicated appears therefore to require modification. 
 
 8 Plut. Pomp. 52 ; Cato Mitt. 42. 
 
 4 Ael. Don. in Terent. Ad. iv. 2. 8 : " Qui malam rem nuntiat, obnuntiat, qui 
 bonam, adnuntiat : nam proprie obnuntiare dicuntur augures, qui aliquid mali omi- 
 nis scaevumque viderint." In this late author (350 A.D.) obnuntiatio is ascribed to 
 the augurs. When Cicero says to Antony {Phil. ii. 33. 83) " Augur auguri, consul 
 consuli obnuntiasti," he does it only to find fault with the proceeding ; cf. Momm- 
 
ii2 THE ROMAN ASSEMBLIES 
 
 private citizen the president could credit or not as he saw fit, or 
 he could declare it irrelevant ; 1 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. 2 A case of epilepsy, 
 by vitiating the business of the assembly, required an adjourn- 
 ment ; and for that reason the malady was called the comitial 
 sickness. 3 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 an- 
 other. 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. 4 
 
 Although the augurs had neither the auspicia impetrativa nor 
 the right to watch the sky for unfavorable omens, 5 they were 
 competent to report (nuntiatio) unexpected oblativa to the mag- 
 istrates. 6 Their object in attending the comitia accordingly was 
 
 sen, Rom. Staatsr. i. 1 1 1, n. 2. These are the only instances known to us in which the 
 distinction is not observed ; Mommsen, ibid.; Wissowa, in Pauly-Wissowa, Real- 
 Encycl. ii. 2335; Valeton, in Mnemos. xix (1891). 75 ff., 229 ff.; Bouche-Leclerq,. 
 in Daremberg et Saglio, Diet, i. 582. 
 
 1 Cato, De sacr. comm. in Fest. 234. 33 : " Quod ego non sensi, nullum mihi vitium 
 facit; " Pliny, N. H. xxviii. 2. 17; Serv. in Aen. xii. 259 : " In oblativis auguriis in 
 potestate videntis est, utrum id ad se pertinere velit, an refutet et abominetur ; " cf. 
 Cic. Div. ii. 36. 77 ; Wissowa, ibid. ii. 2335. An example of an evil omen privately 
 reported is given by App. B. C. i. 30. 
 
 2 Livy ix. 38. 16 with ch. 39. I. a Fest. 234. 27. 
 
 4 P. 104; Cato, De re mil. in Fest. 214-7 : "Magistratus nihil audent imperare, ne~ 
 quid consul auspici peremat." E P. 1 14. 
 
 6 Cic. Phil. ii. 32. 8 1 : "Nos (augures) nuntiationem solum habemus, consules et 
 reliqui magistratus etiam spectionem ; " Varro, Rer. hum. xx, in Non. Marc. 92 : " D& 
 caelo auspicari ius neminist praeter magistratum; " Fest. 333. 9 (quoted p. 106, n. 
 8). Madvig, Rom. Staat. i. 267, supposes that the augurs had both the spectio and 
 the nuntiatio; but this view contradicts the clear statement of Cicero; Mommsen,. 
 
THE AUSPICES 113 
 
 not only to assist the president with their special knowledge, 1 
 but also to witness the religious legality of the proceeding. In 
 the latter function the augur derived great influence 2 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. 3 For this reason witnessing augurs were granted the 
 privilege of adjourning the assembly in case they perceived 
 unfavorable omens.* Cicero 6 describes in detail such an ad- 
 journment of an electoral assembly of centuries : " Behold the 
 day for the election of Dolabella ! The prerogative cerftury is 
 drawn by lot, he (the augur) remains quiet. The vote is an- 
 nounced, he is silent. The first class is called and the announce- 
 ment 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 cer- 
 tainty predict an evil omen, 6 it was evident that Antony, acting 
 merely as augur, made a fictitious report. 
 
 Augurs were always present at meetings of the curiae, 7 of 
 
 Rom. Staatsr. 1. 109, n. I. The fact is, as has been stated (p. 106), they had the 
 spectio for their own functions only, and as assistants of the magistrates simply the 
 nuntiatio. 1 The formula used is " in auspicio esse; " Cic. Att. ii. 12. I. 
 
 8 Cic. Leg.ii. 8. 20 f.; iii.4.11; 19.43; N - D - "• 3- 8 5 Div - "■ 33- 7 « i cf. Lange, 
 Rom. Alt. i. 339. 8 P- 106 f. 
 
 4 Cic. Phil. ii. 33. 83; Div. i. 40.89: "Privati eodem sacerdotio praediti rem 
 publicam religionum auc tori tat e rexerunt," an exaggeration; Leg. ii. 12. 31; Livy i. 
 36. 6. In this capacity the augur did not look for omens with a view to reporting 
 them, but merely announced those which came unexpectedly. 
 
 6 Phil. ii. 33. 82 f. "P. 115. 
 
 7 Three were present at curiate assemblies; Cic. Att. iv. 17. 2; cf. ii. 7. 2. 
 
 I 
 
ii4 THE ROMAN ASSEMBLIES 
 
 the centuries, 1 and of the tribes under the presidency of a patri- 
 cian magistrate. 2 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 3 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 ; 4 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, 6 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. 6 A 
 consul for instance could prevent a quaestor from scanning the 
 heavens on any particular day ; and the senate on the rare occa- 
 sions when it felt itself sufficiently strong, suspended for a par- 
 ticular act of the assembly the right of all magistrates to receive 
 and to announce unfavorable omens. 7 In the absence of sena- 
 torial interference it remained possible for any higher magis- 
 trate 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 obnun- 
 tiating against a colleague 8 and against the pontifex maximus, 9 
 
 1 In this case the augur not only assisted with his special knowledge, but also 
 acted as crier; Varro, L. L. vi. 95. 2 Varro, X. £. iii. 2. 2; 7. 1. 
 
 3 Leg. ii. 12. 31. * Cic. Phil. ii. 32. 81. 6 P. 104, 112. 
 
 6 Gell. xiii. 15. 1 ; cf. Rubino, Rom. Verf. 79. 
 
 7 Cic. Att. i. 16. 13 : " Lurco tribunus pi. solutus est et Aelia et Fufia, ut legem de 
 ambitu ferret; " Sest. 61. 129: "Decretum in curia . . . ne quis de caelo servaret, 
 ne quis moram ullam adferret " (that no one should watch the heavens or interpose 
 any delay in the proceedings for the recall of Cicero). Both measures here referred 
 to were so popular and the magistrates were so nearly unanimous in their support 
 that the senate felt it could in these cases forestall the opposition of one or two 
 opponents. 
 
 8 In the famous case of Bibulus against Caesar, 59 ; Suet. Cats. 20 ; cf. Dio Cass, 
 xxxviii. 4. 2 f. ; 
 
 9 Proved by the fact that the watching of the sky by Bibulus should have annulled 
 the arrogation of Clodius (Cic. Dom. 15. 39 f.; Har. Resp. 23. 48; Att. ii. 12. 2; 16. 
 
THE AUSPICES 115 
 
 a praetor against a tribune of the plebs, 1 and a tribune against 
 a consul 2 or a censor, 3 as well as against a colleague.* 
 
 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." 6 If accordingly a magistrate announced that he 
 intended to scan the heavens on the day appointed for an as- 
 sembly, 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 declar- 
 ing his intention to observe the sky on all comitial days. 6 Strictly 
 the observation had to be made and reported before the assembly 
 met. "Can any one divine beforehand," Cicero 7 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 
 
 2; Prov. Cons. 19. 45; Mommsen, Rom. Staatsr. i. 113, n. 2), which was brought 
 about by an act of the curiae under the presidency of the supreme pontiff. Any one 
 competent to observe the heavens necessarily had the obnuntiatio. 
 
 1 Cic. Sest. 36. 78. Probably obnuntiatio against tribunes is referred to by Cic. 
 Phil. v. 3. 7 f. and by Ascon. 68 (the last is the abolition of the Livian laws of 91), 
 but the obnuntiating magistrate is not known. In Cic. Vatin. 7. 1 7 (" Num quem 
 post urbem conditam scias tribunum pi. egisse cum plebe, cum constaret servatum 
 esse de caelo ") the principle is laid down that any one who has the right to obnun- 
 tiate may use this power against a tribune. The validity of the tribunician law for 
 the interdiction of Cicero from fire and water was maintained on the ground that no 
 one was then watching the sky ; Cic. Prov. Cons. 19. 45. 
 
 2 Cic. Sest. 37. 79; cf. 38. 83 ; Phil. ii. 38. 99; AU. iv. 3. 3 f.; 17. 4; Q. Fr. iii. 3. 
 2 (cf. Drumann-Grobe, Gesch. Poms, iii. 6; Mommsen, Pom. Staatsr. i. 113, n. 3); 
 Dio Cass, xxxix. 39; Plut. Crass. 16; App. B. C. ii. 18. 66 (cf. Cic. Div. i. 16. 29); 
 iii. 7. 25. 8 Cic. Att. iv. 9. I. 4 Cic. Vatin. 7. 16. 
 
 6 Cic. Dom. 15. 39 : " (Augures) negant fas esse agi cum populo, cum de caelo ser- 
 vatum sit." • Cic. AU. iv. 3. 3, 7 Cic. Phil. ii. 32. 81. 
 
n6 THE ROMAN ASSEMBLIES 
 
 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. 1 
 
 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 busine3S in 
 assembly. 2 
 
 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 3 passed about 150* What features of these 
 statutes were new has not been precisely determined. It is cer- 
 tain, 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 mag- 
 
 1 Cic. All. iv. 3. 4. In like manner Bibulus, after obnuntiating in vain against 
 Caesar's agrarian law (p. 439), determined to remain at home and continually to watch 
 the sky for the remainder of the year. This procedure invalidated all acts passed 
 during that time by the assembly; Cic. Dom. 15. 39 f-; Har. Jiesp. 23.48; Prov. 
 Cons. 19. 45. 
 
 2 This procedure too was followed by Bibulus; Dio Cass, xxxviii. 6. 1; cf. 
 Mommsen, Rom. Staatsr. i. 82, n. 3. 
 
 8 That they were two separate enactments, and not one complex statute by joint 
 authors, is clearly indicated by Cic. Har. Jiesp. 27. 58 : " Sustulit duas leges 
 Aeliam et Fufiam; " Sest. 15. 33. Generally they are spoken of as separate laws, 
 though Cicero occasionally, as Vatin. 5. 7, groups them in one. That they were 
 plebiscites is held probable by Mommsen, Rom. Staatsr. i. m, n. 4. 
 
 4 When Cicero, Vatin. 9. 23, states that these laws survived the ferocity of the 
 Gracchi, the audacity of Saturninus, etc., he places their origin in the times before 
 the Gracchi; and when he speaks of their abolition, 58, he tells us that they had 
 been in force about a hundred years (Pis. 5. 10). 
 
THE AUSPICES 
 
 117 
 
 istrates 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 reason- 
 able to conclude that the Aelian and Fufian statutes gave the 
 patrician magistrates the obnuntiatio against that body. 1 It was 
 equivalent to a power of veto, which the aristocracy could now 
 exercise upon tribunician legislation, hence Cicero 2 regards the 
 two statutes as most holy s means of " weakening and repressing 
 the fury of the tribunes," and as the " surest protection of the 
 commonwealth." * Notwithstanding the opinion of Lange, 6 that 
 the obnuntiatio was restricted to legislation, it seems clear from 
 the words of Cicero, 6 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 Satur- 
 ninus, and the tribunes were again acting independently of the 
 senate as in the early history of their office, optimates and pop- 
 ulares, 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 disin- 
 tegration. Vatinius, tribune of the plebs in 59, had the bold- 
 ness utterly to disregard these statutes ; 7 and in 58 the tribune 
 Clodius repealed them in so far as they affected legislation, 8 
 whereas for elections the obnuntiatio still remained in force. 9 
 The misuse of auspices for political purposes dates back, 
 according to Livy, 10 to the beginning of the Samnite wars. 
 
 1 Dio Cass, xxxviii. 13. 2 Vatin, 7. 18. * Ibid. 9. 13. 
 
 4 Red. in Sen. 5. II; cf. Har. Resp. 27. 58; Pis. 4. 9: " Propugnacula murique 
 tranquillitatis atque otii." With other provisions of these statutes (cf. Cic. Att. i. 16. 
 13; Schol. Bob. 319 f.) the present discussion is not concerned. See further on 
 these laws, p. 358 f. below. 
 
 6 Kleine Schriften, i. 274 ff., 341; Rom. Alt. ii. 315, 477 f. 
 
 6 Att. iv. 3. 4; 16. 5; Phil. ii. 32. 81. 7 Cic. Vatin. 6. 15; 7. 18. 
 
 8 Cic. Red. in Sen. 5. n : "Legem tribunus pi. tulit, ne auspiciis obtemperaretur, 
 ne obnuntiare concilio aut comitiis, ne intercedere liceret, ut lex Aelia et Fufia ne 
 valeret;" Har. Resp. 27.58; Sest. 15.33; Prov. Cons. 19. 46; Pis. 4. 9; 5. II; 
 Dio Cass, xxxviii. 13. 5 f.; 14. 2; Ascon. 9; Schol. Bob. 319 f. 
 
 9 Cic. Att. iv. 3. 4; 16. 5; Phil. ii. 32. 81; cf. Frohlich, in Pauly-Wissowa, Real- 
 Encycl. iv. 84; Drumann-Grobe, Gesch. Roms, ii. 204 f. 10 VIII. 23. 13 ff. 
 
n8 THE ROMAN ASSEMBLIES 
 
 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. 1 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. 2 
 
 Rubino, J., Untersuchungen iiber rom. Verfassung und GeschickU, 34- 
 106; Nissen, H., Das Templum ; Mommsen, Rom. Staatsrecht, i. 76-116; 
 Marquardt, J., Rom. Staatsverwaltung, iii. 397-415 ; Lange, L., Rom. Alter- 
 tiimer, 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 rom. Staatsverfassung, 621-30, see also index s. 
 Augures, Auspicien; Miiller-Deecke, Etrusker, ii. 114-27; Gilbert, O., Ge- 
 schichte und Topographie der Stadt Rom im Altertum, 3 vols., index s. Augu- 
 raculum, Augures; Wissowa, G., Religion und Kultus der Romer, 450-60; 
 Augures, in Pauly-Wissowa, Real-Encycl. ii. 2313-44; Auspicium, ibid. ii. 
 2580-7 ; Aust, E., Religion der Romer, index s. Auguraculum, Augurn, Aus- 
 picia, etc. ; luppiter Elicius, in Roscher, Aitsfuhr Itches Lexikon dergriech. und 
 rom. Mythologie, ii. 656-61 ; Bouche'-Leclerq, A., Histoire de la Divination 
 dans Antiquiti, iv. 134-285 (sources and modern literature, p. 180 f.) ; 
 Augures, in Daremberg et Saglio, Diet. 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., 77 Culto privato di Roma antica, i. 
 i52ff.,232ff. ; Valeton, I.M. J.,De modis auspicandi Romanorum, in Mnemo- 
 syne, 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 Romqnis, ibid, xx (1892). 338-90; xxi. 62-91, 397-440; xxiii. 15-79; 
 xxv. 93-144* 3 6l -85; xxvi. 1-93 (papers in the last two vols, are on the 
 pomerium) ; Luterbacher, F., Der Prodigienglaube und Prodigienstil der 
 Romer, 2 ed. ; Wiilker, L., Die geschkhtliche Entwickelung des Prodigiens- 
 wesens bei den Rbmern; Willoughby, W. W., Political Theories of the Ancient 
 World, ch. xv. 
 
 1 Polyb. vi. 56. 6 ff. 
 
 2 The former view was taken by Appius Claudius Pulcher, consul in 54 and author 
 of a work De disciplina augurali (Fest. 298. 26), and the latter by C. Claudius Mar- 
 cellus, consul in 50, and by Cicero — all three being public augurs ; Cic. Div. i. 47. 
 105; ii. 18. 42; 33. 70; 35. 75; Leg. ii. 13. 32 f.; N. D. i. 42. 118; in general 
 Div. ii. At that time auspices were a mere pretence; the chicken omens were forced, 
 and the celestial signs were not seen; Cic. Div. ii. 33 f., 71 f.; Dion. Hal. ii. 6. On 
 the decline of augury and the auspices, see Wissowa, in Pauly-Wissowa, Real-Encycl. 
 ii. 2315, 2333. 
 
PART II 
 
 THE ASSEMBLIES 
 
 ORGANIZATION, PROCEDURE, AND FUNCTIONS, RESOLU- 
 TIONS, 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, 1 quoted by Gellius, 2 " 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 discus- 
 sion, 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 as- 
 semblies 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 ad- 
 hered 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 
 
 1 Probably the jurist of that name who lived under Hadrian, and who is mentioned 
 by Paulus, in Dig. v. 4. 3. 
 
 2 XV. 27. 4 : "Is qui non universum populum, sed partem aliquam adesse iubet, 
 non comitia, sed concilium edicere debet." 
 
 119 
 
120 THE ROMAN ASSEMBLIES 
 
 comitia and concilium is not a difference between the whole 
 people and a part of the people. 1 
 
 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) ; 2 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, 1 1 : (ple- 
 beian 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. 1 1 ; 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 con- 
 sular 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. 3 
 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) . 
 
 1 For the purpose of the present discussion the plebeian assembly — that is, the 
 assembly which convened under the tribunes of the plebs and which issued plebi 
 scita — is assumed to be a gathering of only a part of the people. If it admitted 
 patricians (p. 300), and if therefore there was no assembly comprised exclusively of 
 plebeians, no argument would be needed to prove the error of the conventional dis- 
 tinction between comitia and concilium. 
 
 2 In Livy iii. 16. 6, this meeting is called a concilium.' 3 P. 341. 
 
COMITIA AND CONCILIUM 121 
 
 (3) '• 3^- 6 : " Auguriis certe sacerdotioque augurum tantus honos accessit, ut 
 
 nihil belli domique postea nisi auspicate gereretur, concilia populi, 
 exercitus vocati, summa rerun), ubi aves non admississent, dirime- 
 rentur.'' 
 
 (4) ii. 7. 7 : " Vocato ad concilium populo " (representing the consul as call- 
 
 ing the people to an assembly). 
 
 (5) iii. 71.3: " Concilio populi a magistratibus date " (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 dis- 
 cussed. 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 x 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 ex- 
 ample (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 2 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 con- 
 tionem escendit "), and afterward laws were passed on the sub- 
 ject of which he treated in his speech — evidently by the same 
 assembly ; hence the concilium populi here mentioned was some- 
 thing 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 
 
 1 Rom. Forsch. i. 170, n. 8 ; Rom. Staatsr. iii. 149, n. 3. 
 8 Mil. 3. 7 ; cf. p. 122, n. 3 below. 
 
122 THE ROMAN ASSEMBLIES 
 
 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." 1 The passage refers to a meeting of the Arde- 
 ates 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. 2 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. 3 
 
 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 Momm- 
 sen 4 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 
 
 1 " Cum se in mediam contionem intulissent, abstinere suetus ante talibus con- 
 ciliis." 
 
 2 His last citation on this point, Livy v. 47. 7 (" Vocatis ad concilium militibus ") 
 has reference to the soldiers only — to a part of the people — and is therefore 
 altogether unlike the others. For an explanation of it, see p. 135 f. 
 
 8 A closely related question is whether concilium is ever restricted to the delibera- 
 tive stage of a session preliminary to the division into voting units, with comitia 
 limited in a corresponding manner to the final, voting stage of the session. A few 
 passages, as examples (2) and (4), might be explained by such a conjecture, but 
 others, as Livy iii. 13. 9 ("Virginio comitia habente conlegae appellati dimisere con- 
 cilium") prove the supposition impossible. Concilium denotes the assembly in its 
 final as well as in its initial stage, voting as well as deliberating, whereas in ordinary 
 political language contio is used to denote the merely listening or witnessing assem- 
 bly, whether organized or unorganized, whether called to prepare the citizens for 
 voting or for any other purpose. 4 Rom. Forsch. i. 1 70, n. 8. 
 
COMITIA AND CONCILIUM 123 
 
 assumes to have been free from the auspices. 1 He concludes, 
 therefore, that it denotes the " patricio-plebeian " tribal assem- 
 blies. 2 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 re- 
 quired 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 8 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 as- 
 semblies 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. n — the con- 
 cilium populi which condemned Marcus Manlius, example (6), 
 p. I2i. Evidently this was the centuriate assembly, which alone 
 
 1 Ibid. i. 195 f. It is true that the plebeian assembly came to be subject to the 
 obnuntiatio (p. 117), but it would be absurd on this ground to suppose that Livy's 
 statement refers especially to gatherings of the kind. 
 
 2 This statement admits that concilium here designates an assembly of the whole 
 people ; but Mommsen does not tell us why the word applies with greater propriety 
 to the " patricio-plebeian " tribal assembly than to the centuriate assembly. For the 
 true reason, see p. 137, u. 5. 8 Rom. Staatsr. iii. 149, n. 3. 
 
124 THE ROMAN ASSEMBLIES 
 
 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. I. 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, 1 1 ; 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. I ; 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- ! ! x xxix. 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 ; Thessa- 
 lians, 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. 
 
COMITIA AND CONCILIUM 125 
 
 6); and twice, at Capua, we hear of a plebis concilium; Livy 
 xxiii. 4. 4 ; xxvi. 16. 9. From the frequency of the first-men- 
 tioned 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 rela- 
 tion 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; iiL 
 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 
 
126 THE ROMAN ASSEMBLIES 
 
 Lucius Julius Caesar's 1 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 centu- 
 riate gathering {Cat. 24, 26 ; lug. 36, 44), in lug. 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") 2 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 sup- 
 port of the definition of Laelius. Following Berns, 8 they say 
 Cicero has violated the rule but once, Att. i. 1. 1, in which oc- 
 curs 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 — hav- 
 ing 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." 4 
 
 1 Undoubtedly the Caesar who was consul in 64 B.C.; Teuffel and Schwabe, Rom. 
 Lit. i. 348. § 3; Drumann-Grobe, Gesck. Roms, iii. 120, n. 6. 
 
 2 " P. Lucullus et L. Annius, tribuni plebis, resistentibus collegis continuare 
 magistratum nitebantur, quae dissensio totius anni comitia impediebat." 
 
 8 De com, trib. et conc.pl. discr. (1875) ; Mommsen, Rom. Staatsr, iii. 149, n. 1 ; 
 Kornemann, in Pauly-Wissowa, Rcal-Encycl. iv. 802. The correctness of my results 
 is acknowledged in the Thesaurus linguae latinae, iv. 44 ff. 
 
 4 " Tribunicii candidati compromiserunt HS quingenis in singulos apud M. Cato- 
 nem depositis petere eius arbitratu, ut, qui contra fecisset, ab eo condemnaretur. 
 Quae quidem comitia si gratuita fuerint, ut putantur, plus unus Cato potuerit quam 
 omnes leges omnesque iudices." The translation given above is Shuckburgh's. 
 
COMITIA AND CONCILIUM 127 
 
 The tribunician comitia are the only comitia concerned in 
 Cato's transaction. Again in Att. ii. 23. 3 (" It is of great in- 
 terest 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") 1 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. 2 Another important passage is Sest. 51. 109: 
 
 " I come now to the comitia whether for electing magistrates or for enact- 
 ing 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 com- 
 pliance 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 ? " 8 
 
 The law which Cicero dwells on with such bitterness at the be- 
 ginning of this passage and recurs to at the end is the tribuni- 
 cian 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 
 ■aersons except by the comitia centuriata. For when the people are organized 
 
 1 " Permagni nostra interest te, si comitiis non potueris, at, declarato illo, esse 
 Romae." * Cf. Mommsen, Rom. Staatsr. ii. 482. 
 
 8 " Venio ad comitia, sive magistratuum placet sive legum. Leges videmus saepe 
 ferri multas. Omitto eas, quae feruntur ita, vix ut quini, et ii ex aliena tribu, qui 
 suffragium ferant, reperiantur. De me, quem tyrannum atque ereptorem libertatis 
 esse dicebat ilia ruina rei publicae, dicit se legem tulisse. Quis est, qui se, cum con- 
 tra me ferebatur, inisse suffragium confiteatur ? cum autem de me eodem ex senatus 
 consulto comitiis centuriatis ferebatur, quis est, qui non profiteatur se adfuisse et suf- 
 fragium de salute mea tulisse? Utra igitur causa popularis debet videri, in qua 
 omnes honestates civitatis, omnes aetates, omnes ordines una mente consentiunt, an 
 in qua Curiae concitatae tamquam ad funus rei publicae convolant ? " 
 
128 THE ROMAN ASSEMBLIES 
 
 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 in- 
 sisted 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 privi- 
 legia. 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 con- 
 cerning that same person against whom some slaves and robbers declared 
 they had passed a decree." * 
 
 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 2 can make this citation refer 
 to his " patricio-plebeian " comitia tributa no one can possibly ex- 
 plain. 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 as- 
 sembly as comitia. In many passages comitia seems to include all 
 the elections of the year, of plebeian as well as of patrician magis- 
 trates ; for the elections were usually held in the same season, 
 and could not well be separated in thought. 3 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." 4 Cf. also 54. 115 ; 59. 125. 
 
 1 " Ferri de singulis nisi centuriatis comitiis noluerunt. Descriptus enim populus 
 censu, ordinibus, aetatibus plus adhibet ad suffragium consilii quam fuse in tribus 
 convocatus. Quo verius in causa nostra vir magni ingenii summaque prudentia, L. 
 Cotta, dicebat nihil omnino actum esse de nobis ; praeter enim quam quod comitia 
 ilia essent armis gesta servilibus, praeterea neque tributa capitis comitia rata esse 
 posse neque ulla privilegii: quocirca nihil nobis opus esse lege, de quibus nihil 
 omnino actum esset legibus. Sed visum est et vobis et clarissimis viris melius, de 
 quo servi et latrones scivisse se aliquid dicerent, de hoc eodem cunctam Italiam 
 quid sentiret, ostendere." 2 Rom. Forsch. i. 161, n. 53. 
 
 3 See list of citations for electoral assemblies, p. 133. 
 
 * " Tribus locis significari maxime populi Romani iudicium ac voluntas potest, 
 contione, comitiis, ludorum gladiatorumque consessu." 
 
COMITIA AND CONCILIUM 129 
 
 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 fol- 
 lowing expression ; Rep. i. 33. 50 : " The nobles who have arro- 
 gated to themselves this name, not with the consent of the people, 
 but by their own comitia." 1 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. Veil. 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. 1 6 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 condi- 
 tion, but by the favor of sortition, to usurp the liberty of all." 2 
 
 1 " Qui (optimates) non populi concessu, sed suis comitiis hoc sibi nomen adroga- 
 verunt." 
 
 2 " Iubet enim tribunum plebis, qui earn legem tulerit, creare decemviros per tri- 
 bus septemdecim, ut, quem novem tribus fecerint, is decemvir sit. Hie quaero, quam 
 -ob causam initium rerum ac legum suarum bine duxerit, ut populus Romanus suffra- 
 
 K 
 
130 THE ROMAN ASSEMBLIES 
 
 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. 1 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 distinc- 
 tion 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 him- 
 self about such unpractical matters. 2 
 
 From the evidence as to Cicero's usage given above, we must 
 draw the following conclusions : 
 
 i. 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. 1 3 (3). 13:" Nihil est enim ML 
 principi deo . . . acceptius quam concilia coetusque hominum 
 iure sociati, quae civitates appellantur (Nothing is more agreea- 
 ble 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, con- 
 cilia, 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 
 
 gio privaretur . . . Etenim cum omnes potestates, imperia, curationes ab universo 
 populo Romano proficisci convenit, turn eas profecto maxime, quae constituuntur ad 
 populi fructum aliquem et commodum, in quo et universi deligant, quem populo 
 Romano maxime consulturum putent, et unus quisque studio et suffragio suo viam- 
 sibi ad beneficium impetrandum munire possit. Hoc tribuno plebis potissimum venit 
 in mentem, populum Romanum universum privare suffrages, paucas tribus non certa 
 condicione iuris, sed sortis beneficio fortuito ad usurpandam libertatem vocare ; " cf.. 
 Imp. Pomp. 15. 44; 22.64. J Sest. 51, 109. 2 P. 301 f. 
 
COMITIA AND CONCILIUM 
 
 I 3 1 
 
 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 senti- 
 ments 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. 1 
 
 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 re- 
 public. 2 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 discus- 
 sion. 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. 3 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 : 
 
 1 " Mihi quidem eae verae videntur opiniones, quae honestae, quae laudabiles, 
 quae glotiosae, quae in senatu, quae ad populum, quae in omni coetu concilioque 
 profitendae sint;" cf. Leg. iii. 19. 44, quoted p. 127. 
 
 2 The writers not included in this discussion, as Nepos and the poets, contain 
 nothing at variance with the results here reached. Gudeman's article on Concilium 
 in the Ties. ling. /at. iv. 44-8, in most respects excellent, still retains the groundless 
 distinction between republican and imperial usage. 
 
 8 It will suffice here to mention the elder Cato ; Livy xxxix. 40. 6 : "Si ius con- 
 suleres, peritissumus ; " Cic. Senec. 1 1. 38 : " Ius augurium, pontificium, civile tracto." 
 On the subject in general, see Pais, Stor. d. Rom. I. i. 68 and notes. 
 
132 THE ROMAN ASSEMBLIES 
 
 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 (ap- 
 plied to the meeting of a collegium); Livy i. 21. 3 (Camenarum 
 concilia); ii. 38. 4; xxvii. 35. 4. 1 
 
 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 or- 
 ganized assembly. 
 
 (a) Concilium is the more general term in Cicero, Fin. iii. 19. 
 63; ii. 24. Tj; Rep. vi. 13 (3). 13. 2 In all these citations con- 
 cilia, 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 inter- 
 cessum 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. 3 
 
 1 For citations of other authors, see Gudeman, in This. ling. lat. iv. 45. 
 
 2 All three passages are quoted, p. 130 f. 
 
 8 The classification of comitial functions into elective, legislative, and judicial 
 follows Cicero, Div. ii. 35. 74: "Ut comitiorum vel in iudiciis populi vel in iure 
 
COMITIA AND CONCILIUM 133 
 
 (a) Comitia is used in its most general sense in Cicero, 
 Div. i. 45. 103 ; ii. 18. 42 f. ; 35. 74; Tusc. iv. I. I. 1 
 
 V. (a) Applied to foreign institutions, comitia always des- 
 ignates electoral assemblies ; (b) as at Rome, concilia are 
 always legislative or judicial assemblies. 2 
 
 (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. I ; 26. 
 16; 27. 1; xxxii. 25. 2; xxxiii. 27. 8; xxxiv. 51. 5. 
 
 (3) 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. 8 
 
 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 ; Sail. Cat. 24 ; lug. 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. I ; 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 ; Plane. 3. 7, 8 ; 4. 9, 10 ; 6. 15 ; 
 
 legum vel in creandis magistratibus." In this volume, accordingly, " legislative " 
 refers not merely to lawmaking in the narrower sense, but also to the passing of 
 resolutions on all affairs, domestic and foreign, including necessarily the lex de bello 
 indicendo. 
 
 1 For separate lists of the elective and the legislative and judicial comitia, see 
 VI (below), where will be found sufficient illustrations of (£). 
 
 2 Only one instance of concilium as an elective body has been found; Lex Julia 
 Municipalis, in CIL. i. 206. 1 32 : the election of magistrates " comitieis conciliove." 
 The explanation is that the usage of some of the Italian municipia differed from 
 the Roman, and the author of the law had to adapt his language to local custom. 
 With this exception the inscriptions are in line with the literature. 8 P. 124. 
 
i 3 4 THE ROMAN ASSEMBLIES 
 
 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. i. 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 ; 
 1 1. 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, "! 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, J 4i vii. 9. 4; 17- 10, 13; '9- 5! 2I - l i 
 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. I, 6; xxxviii. 35. I ; 42. 1, 2, 4; xxxix. 6. 1 ; 23. I ; chs. 32, 39, 
 40, 41, 45 ; xl. 18, 37, 45, 59; xli. 6, 8, 14, 16, 17, 18, 28 ; xlii. 9, 28 ; xliii. u r 
 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; 
 Sent. 30. 65; 34-73! 5 1 - I0 9! Leg- m - '9- 45 ; R'P- »• 3*- 53 5 35- &>; 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. 1 1 ; xlii. 30 ; xliii. 16 ; xlv. 35. 
 
 As these lists are nearly exhaustive, they represent substan- 
 tially the relative frequency of the two uses of comitia. 
 
 VII. («) Rarely is either the centuriate assembly or the so- 
 called patricio-plebeian tribal assembly termed concilium; (3) 
 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. ii. 1 (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. 
 1 Discussed on p. 1 23 f. 
 
COMITIA AND CONCILIUM 135 
 
 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 there- 
 fore 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. 1 
 
 As a non-political gathering is not made up of groups — simi- 
 lar to the voting divisions of the national assemblies — it can- 
 not be called comitia. Concilium is the only term appropriate 
 to it ; hence we have the second general use of the two words. 2 
 
 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 assem- 
 blies organized in voting divisions. This is the third general use. 3 
 
 For explaining the four remaining uses it is necessary to in- 
 quire into the fundamental meaning of concilium. Although 
 the etymology is uncertain, probability favors the ancient con- 
 jecture which derives it from " con-calare." * People could only 
 
 1 P. 132. 2 Ibid. 8 Ibid. 
 
 * Fest. ep. 38 : " Concilium dicitur a concalando, id est vocando." It is accepted 
 byCurtius, Griech. Etym. 139; Vanicek, Griech.-lat. ctym. Worterd. 143; Walde, Lat. 
 etym. Worterb. 136. But Corssen, Beitr. *. ital. Sprachk. 41 f., rejects this etymol- 
 ogy on the ground that it does not harmonize with all the meanings of the word and of 
 its derivative " conciliare"; also Gudeman, in TAes. ling. lat. iv. 44. Corssen, analyz- 
 ing it into con-cil-iu-m, and connecting -cil- with a root kal-, " to cover," supposes 
 the original meaning to be simply " a joining together," " a union," — giving that 
 signification which he considers primary. It is equally reasonable, however, to as- 
 sume the development to be (1) "a calling together," (2) "a meeting for consulta- 
 tion," (3) " a natural union of individuals of any kind." In the third sense it is ap- 
 plied perhaps figuratively to inanimate things, especially the union of atoms to form 
 objects, by Lucretius i. 183, 484, 772, 1082; ii. 120 ; iii. 805; cf. Ovid, Met. i. 710. 
 
136 THE ROMAN ASSEMBLIES 
 
 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. 1 
 In the manuscripts and editions it is frequently interchanged 
 with consilium, 2 and in the sources these two words are often 
 placed in punning juxtaposition. 3 Possibly their close resem- 
 blance, 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. 4 With this meaning the 
 word could not designate an electoral assembly, which did not 
 allow discussion; 6 it was restricted to legislative and judicial 
 assemblies, in which the voting was preceded by deliberation. 
 This is the fourth use. 6 
 
 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 assem- 
 
 1 The meaning consultation, deliberation, clearly appears in Plaut. Mil. 597 ff. : 
 " Sinite me priu' perspectare, ne uspiam insidiae sient 
 Concilium quod habere volumus. Nam opus est nunc tuto loco 
 Unde inimicus ne quis nostri spolia capiat consili. 
 Nam bene consultum inconsultumst, si id inimicis usuist, 
 Neque potest quin, si id inimicis usuist, opsit tibi; 
 Nam bene (consultum) consilium surrupitur saepissume." 
 Also in 249, 1013: " Socium tuorum conciliorum et participem consiliorum " ; 
 Cic. Rep. 17. 28: " Doctissimorum hominum in concilio"; Caes. B. C. i. 19; 
 Nep. Epam. 3. 5; Verg. Aen. ii. 89 (or consiliis); iii. 679; v. 75; xi. 234; Livy 1. 
 21. 3; see also II (a), p. 132, and Forcellini, Lat. Lex. ii. 347. It is never a chance 
 crowd ; Diff. ed. Beck, p. 47. 43 : " Concilium est convocata multitudo, conventus 
 ex diversis locis populum in unum contrahit, coetus fortuitu congregatur." The 
 ancients understood this to be the meaning of the word ; Varro L. L. vi. 43 : "A 
 cogitatione concilium, inde consilium,'' an unsuccessful though instructive guess; 
 Pest. ep. 38: "Concilium dicitur » populo consensu;" Isid. Etym. vi. 16. 12: 
 " Concilium a communi intentione ductum, quasi communicilium." This interpreta- 
 tion is supported by several glosses; <pi\owoteta (Corp. Gloss. Lai. ii. 471. 49), 
 (ru^oi/Xiop (ibid. ii. 107. 5), coenobulium, caenobulium (ibid. iv. 321. 27). Lastly 
 our derivative "council" points in the same direction. The meaning "deliberative 
 assembly " has been accepted by Gudeman, in Thes. ling. lat. iv. 46, who has added 
 citations from the whole range of Latin literature. 
 
 2 Lodge, Lex. Plaut. i. 288; Gudeman, Thes. ling. lat. iv. 45. 
 
 8 Cf. Gudeman, ibid. iv. 48. * Cf. n. 1 and p. 132, II (a). 
 
 6 P. 143- * P. 132. 
 
COMITIA AND CONCILIUM 137 
 
 blies referred to by Roman writers was concerned with 
 international affairs — was legislative — and hence foreign 
 assemblies are usually termed concilia. 1 This consideration 
 accounts for the fifth general use. 2 
 
 The sixth 3 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 4 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. Further- 
 more the assembly over which the tribunes presided was far 
 more deliberative than any other. Hence the centuriate as- 
 sembly became the comitia, and the plebeian tribal assembly the 
 concilium. 6 
 
 The cause of the error into which Laelius 6 fell is now ap- 
 parent. 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 discus- 
 sion 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. 
 
 1 The notion sometimes expressed that the 'word applies more appropriately to a 
 body of representatives of the component states of a league is without foundation, 
 though it is true that some foreign concilia are of this character. 
 
 2 P. 133. 8 Ibid. * P. 134. 
 6 Thus is explained a phenomenon for which Mommsen could find no adequate 
 
 reason — that the so-called " patricio-plebeian " tribal assembly was more apt to be 
 called concilium than were the comitia centuriata. The deliberative feature of the 
 concilium also explains the close approach of the word to contio — another fact 
 which Mommsen knew but did not understand. 
 
 6 Cf. p. 131. Notwithstanding all the confidence reposed by the moderns in this 
 utterance of Laelius, ' debet ' suggests that he is proposing an ideal distinction 
 rather than stating an actual usage. 
 
138 THE ROMAN ASSEMBLIES 
 
 A result of this inquiry is to banish the expressions "con- 
 cilium 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. 1 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., Rom. Forschungen, i. 129-217 ; Berns, C, De comitiorum 
 tributorum et conciliorum plebis discrimine; Soltau, W., Altrom. Volksver- 
 sammlungen, 37-46 ; Humbert, G., Comitia, in Daremberg et Saglio, Diet. i. 
 1374 ff. ; Concilium, ibid. 1432 f.; Liebenam, W., Comitia, in Pauly-Wissowa, 
 Real-Encycl. iv. 679 if. ; Kornemann, E., Concilium, ibid. iv. 801 ff. ; 
 Vaglieri, D., Concilium, in Ruggiero, Diz. efi. 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. 
 
 1 P. 286, 292, 301 f. 
 
CHAPTER VII 
 
 THE CONTIO 
 
 Contio, derived from conventio, 1 originally signified " a com- 
 ing 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, 2 in which, quoting the treatise of Lucius 
 Julius Caesar on the Auspices, he declares (i) 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, 3 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. 4 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. 6 But in the time of Cicero this use of the word was 
 
 1 Corssen, Ausspr. i. 51; ii. 683; Vanicek, Griech.-lat. etym. Worterb. 184; 
 Walde, Lat. etym. Worterb. 140; cf. SC de Bacch. in CIL. i. 196. 23 : " In con- 
 ventionid"; Fest. ep. 113: " In conventione in contio " ; Commentaria Consularia, 
 in Varro, Z. Z. vi. 88; Corp. Gloss. Lat. v. 280. 13; vi. 270, s. v. 
 
 2 Sat. i. 16. 29 : " Contra Iulius Caesar XVI auspiciorum libro negat nundinis 
 contionem advocari posse, id est cum populo agi, ideoque nundinis Romanorum 
 haberi comitia non posse ; " cf. p. 125 f. 
 
 8 Ait. iv. 3. 4 : " Contio biduo nulla." 
 
 4 Cf. Pliny, N. H. xviii. 3. 13 : "Nundinis urbem revisitabant et ideo comitia nun- 
 dinis habere non licebat, ne plebs avocaretur ;" Fest. 173. 30-3. 
 
 6 Cic. Att. i. 14. I ; Lex Gen. 81, in CIL. ii. Supplb. 5439 : " In contione palam 
 luci nundinis." Another illustration is the statement of Gellius, xv. 27. 3, that wills 
 were made in comitia calata, in a contio of the people. Mommsen's assumption 
 {Rom. Staatsr. i. 199 and n. 3) that no contio was held on a market day as a rule, 
 
 139 
 
140 THE ROMAN ASSEMBLIES 
 
 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 1 
 or more commonly unorganized — summoned by a magistrate 
 or a sacerdos, 2 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. 3 
 
 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. 4 It might be composed either of soldiers 5 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, 6 interrex, dictator, 
 master of horse, and tribunes of the plebs ; 7 also the quaestors 8 
 
 to which there were exceptions, is altogether unsatisfactory. The passages cited refer 
 to a law, not to a mere custom to be observed or not at the will of the magistrate. 
 The contio which met on a market day must have been essentially different in nature 
 from the contio which was forbidden for market days ; cf. also Varro, L. L. vi. 93; 
 Cic. Rab. Perd. 4. 11. 
 
 1 The calata comitia curiata is termed contio by Gell. xv. 27. 3 : " Quod calatis 
 comitiis in populi contione fieret." Cicero, Rab. Perd. 4. 11 (cf. 5. 15) speaks of 
 the witnessing comitia centuriata as contio, and the lustral centuriate assembly was 
 similarly termed ; Censorial Tabulae, in Varro, L. L. vi. 87: " Conventionem habet 
 qui lustrum conditurus est." A widespread idea (held by Karlowa, Pom. Rechtsgcsch. 
 i. 379; Liebenam, in Pauly-Wissowa, Real-Encycl. iv. 1149; Soltau, Allr'dm. 
 Volksversamml. 37, and others) that all contiones were unorganized is therefore 
 wrong. 2 Fest. ep. 38. 
 
 8 Cic. Vatin. i. 3; Alt. xiv. II. 1; 20. 3; xv. 2. 3; Fam. ix. 14. 7; x. 33. 2; 
 Livy xxiv. 22. I; Gell. xviii. 7. 6 f.; Gloss. Corp. Lat. ii. 114. 25; 269. 27; 575. 8. 
 
 4 P. 150. 
 
 6 Examples of military contiones are Caes. B. G. v. 48; vii. 52 f.; Livy i. 16. I; 
 ii. 59. 4 ff. ; vii. 36. 9; viii. 7. 14; 31 f. ; xxvi. 48. 13; xxx. 17. 9; xli. 10. 6; 
 see also p. 202 f. 
 
 6 Dion. Hal. iv. 37; v. II. 2; Plut. Popl. 3; the candidate, too, for the regal 
 office ; Livy i. 35. 2. 
 
 7 Cic. Leg. iii. 4. 10 : " Cum populo . . . agendi ius esto consuli, praetori, magis- 
 tro populi equitumque eique, quem patres prodent consulum rogandorum ergo; 
 tribunisque, quos sibi plebes creassit . . . ad plebem, quod oesus erit, ferunto; " 
 Varro, L. L. vi. 93 : " Censor, consul, dictator, interrex potest (exercitum urbanum 
 vocare) ." 
 
 8 Schol. Bob. 330 ; cf. Mommsen, Rom. Slaatsr. I. p. xix. This passage proves 
 that a quaestor could call a contio in his own right ; and the same holds probable 
 for the aediles. 
 
THE CONTIO 141 
 
 and aediles, 1 the pontifex maximus and the rex sacrorum. 2 
 Necessarily the right belonged as well to all extraordinary 
 magistrates, as the decemviri legibus scribundis, who possessed 
 consular power within the city. 3 But promagistrates and any 
 others who held an exclusively military imperium could sum- 
 mon neither the comitia nor the civil contio. 4 The censors held 
 contiones for the taking of the census, 6 for imposing fines, 6 and 
 for the lustration. In the last-named function the assembly 
 was also called comitia centuriata or exercitus urbanus. 7 The 
 quaestors, the curule aediles, and the plebeian aediles exercised 
 their jurisdiction in contiones and comitia, which for this pur- 
 pose they called not in their own name but by permission of a 
 higher magistrate. 8 
 
 As the contio did not, like the comitia, theoretically include 
 all the people, any number of magistrates could simultaneously 
 hold meetings of the kind. 9 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 
 
 1 It is necessary to include them in the general statement of Messala, in Gell. 
 xiii. 16 (17). I, that the lower magistrates had the right; cf. the note above. 
 
 2 Fest. ep. 38 : " Contio signincat conventum, non tamen alium, quam eum, qui a 
 magistratu vel a sacerdote publico per praeconem convocatur." The sacerdos is the 
 rex sacrorum as well as the supreme pontiff. It was necessary for the latter to hold 
 judicial contiones ; p. 259, 327. For the former, see Varro, L. L. vi. 28; Macrob. 
 Sat. i. 15. 9-12; Serv. in Aen. viii. 654. Strictly the contiones of the rex sacrorum 
 were calata comitia curiata ; p. 155. 
 
 8 Mommsen, Rom. Staatsr. i. 193. For a contio of the Xviri leg. scrib. see Livy 
 iii. 34. I. On the duumviri for presiding at the election of consuls in 43, see Dio 
 Cass. xlvi. 45. 3. In the opinion of the Romans the tribunus celerum, an officer 
 under the kings, possessed the right; Livy i. 59. 7; Dion. Hal. iv. 71. 6; 75. 1; 
 Serv. in Aen. viii. 646 ; Pomponius, in Dig. i. 2. 2. 3 : " Exactis regibus lege tribuni- 
 cia." These authors suppose that L. Junius Brutus held an assembly in the capacity 
 of tribunus celerum, whereas Cicero, Rep. ii. 25. 46, speaks of him as a private 
 citizen. 
 
 * Mommsen, Rom. Staatsr. i. 193. But the promagistrate had a. right to attend 
 and to address a contio called for him outside the walls by a competent person; cf. 
 Veil. i. 10. 4; p. 426 below. 
 
 6 Varro, L. L. vi. 90. * Livy xliii. 16. 5. ' Varro, Z. X. vi. 93. 
 
 8 For the quaestor, see Com. Anq. in Varro, L. L. vi. 91 f. For the curule aediles, 
 Cic. Verr. i. 12. 36; v. 67. 173; Livy x. 23. 11; 31. 9; 47. 4; xxxv. 10. II; 41. 
 9; Val. Max. vi. I. 7; viii. I. damn. 7; Pliny, N. H. xviii. 6. 42. For the plebeian 
 aediles, Livy x. 23. 13; xxv. 2. 9; xxxiii. 42. 10; Gell. x. 6. 3; p. 290, 325 below; 
 Mommsen, Rom. Staatsr. i. 196, 11. 2 f. 
 
 9 Messala, De Auspiciis, in Gell. xiii. 16 (15). 1. 
 
142 THE ROMAN ASSEMBLIES 
 
 lower; the consul, for instance, could take the meeting from 
 the hands of any ordinary patrician magistrate, 1 though not of a 
 tribune of the plebs. No one dared disturb a meeting of any 
 kind under the presidency of the latter, 2 and at least in the late 
 republic a tribune sometimes forbade a patrician magistrate to 
 address an assembly; 3 but otherwise consuls and plebeian 
 tribunes might hold simultaneous contiones. 4 
 
 Sometimes the contio was summoned merely to witness a pub- 
 lic 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 centuri- 
 ata and contio. 5 We hear of a similar execution of an astrologer 
 or magician outside the Esquiline gate, according to a primitive 
 custom ; 6 and it was most probably in a contio that the supreme 
 pontiff scourged to death a man who had wronged a Vestal. 7 
 The people gathered in the same kind of meeting to witness an 
 oath, 8 a judicial process, 9 or the levy of a fine. 10 But it was 
 preeminently the listening assembly, hence the definition offered 
 by Gellius, 11 " To hold a contio is to address the people, without 
 
 1 Messala, De Auspiciis, in Gell. xiii. 16 (15). I. 
 
 2 Dion. Hal. vii. 16. 4; 17. 5; 22. 2; x. 41; Cic. Sesl. 37. 79; Livy iii. II. 8; 
 xxv. 3 f.; xliii. 16. 7-9; (Aur. Vict.) Vir. III. 65. 5; cf. Lange, Rom. Alt. i. 604, 
 826; p. 266 below. 
 
 8 Cic. Fam. v. 2. 7 : Q. Metellus Nepos forbade Cicero to address the people in 
 contio on the occasion of his retiring from the consulship — a prohibition which 
 Cicero declares was never before heard of. For another case, see Dio Cass, xxxviii. 
 12. 3; Lange, Rom. Alt. ii. 716; iii. 299 f. 
 
 4 Lange's supposition {Rom. Alt. ii. 716) that by the holding of a contio a tribune 
 could prevent a patrician magistrate's convoking comitia is not well founded. Livy, 
 iv. 25. 1 ("Tribuni plebi adsiduiis contionibus prohibendo consularia comitia"), does 
 not intend to express a constitutional principle; cf. Mommsen, Rom. Staatsr. ii. 289; 
 Liebenam, in Pauly-Wissowa, Real-Encycl. iv. 1150. 
 
 6 Cic. Rab. Perd. 4. 1 1 : " Tune, qui civibus Romanis in contione ipsa carnificem, 
 qui vincla adhiberi putas oportere, qui in Campo Martio comitiis centuriatis auspicato 
 in loco crucem ad civium supplicium defigi et constitui iubes, an ego, qui funestari 
 contionem contagione carnificis veto ... qui castam contionem, sanctum Campum 
 . . . defendo servari oportere;" cf. 5. 15. « Tac. Ann. ii. 32. 
 
 7 Fest. 241. 29; Livy xxii. 57.3; Suet. Dom. 8; DioCass. lxxix. 9. 3 f.; cf. Momm- 
 sen, Rom. Staatsr. ii. 56, a. 4. 
 
 8 Cf. Livy xli. 15. 10; Lex Gen. 81, in CIL. ii. Supplb. 5439. 
 
 Q Livy iii. 66. 2; v. 11. 15; 12. 1; xxxviii. 52. 4; 53. 6. On the judicial contio, 
 see p. 259. 10 Livy xliii. 16. £. 11 XIII. 16. 13. 
 
THE CONTIO 143 
 
 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, 1 but also to the preparatory stage of the voting 
 assembly whether addresses were delivered or not. Occasion- 
 ally in early times there was speaking on the merits of candi- 
 dates at the opening of an electoral assembly, and the voting 
 was sometimes interrupted for the purpose. 2 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, 3 
 speaking on the day of their assembly had to be minimized. 
 For this reason the contio for advising the adoption of a resolu- 
 tion by the comitia centuriata was held on an earlier day. Such 
 was the meeting summoned in the Campus Martius by the con- 
 sul P. Lentulus for the purpose of urging the people to vote in 
 the ensuing centuriate assembly for the recall of Cicero. 4 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. 5 
 
 Informal contiones could be called at any time while the sun 
 was up, 6 with or without 7 an interval between the summons 
 and the meeting, and in any place 8 at the pleasure of the person 
 
 1 Cic. Alt. ii. 21. 5; Verr. i. 15. 44; Sest. 12. 29; Rep. i. 4. 7; Nep. Tim. iv. 3; 
 Them. i. 3; Livy ii. 2. 4; 24. 4-6; 27. 2; iii. 31. 2; 41. 5 ff.; 54. 6; 67 f.; iv. 15; 
 
 sell. 10. 13. 
 
 2 Livy *. 13, 21; (Cic.) Herenn. iv. 55. 68. A contio, described by Livy vi. 
 39-41, was held by the tribunes Licinius and Sextius in the ninth year of their 
 itribunate, after the day of election for the following year had been set. This meet- 
 ing however was as much for the consideration of the proposed laws as of their own 
 candidacy, and hence could not be thought of as strictly pertaining to the election. 
 Mommsen's opinion (Rdm. Staatsr. iii. 392, u. 1) that stories of the kind prove noth- 
 ing does not accord with his own general attitude toward the sources for the earlier 
 iistory of Rome. 8 P- 47°- 
 
 4 Cic. Sest. 50. 107 f. ; Rea. in Sen. 10. 26; Pis. 15. 34. 6 P. 259 f. 
 
 6 Livy xxxix. 17. 4f.; Plut. Aem. 30; Pseud. Sail. Declam. in Cat. 19; cf. the 
 Twelve Tables, in Censorin. 24. 3. 7 Livy xlii. 33. 2. 
 
 8 Besides the Forum or Comitium (Dion. Hal. ix. 41. 4) it sometimes met in the 
 Area Capitolina (Cic. Frag. A. vii. 49; Livy xxxiii. 25. 6; xxxiv. 1. 4), or in the Circus 
 
i 4 4 THE ROMAN ASSEMBLIES 
 
 who convoked them. In public assemblies of every kind the 
 people remained standing throughout the session. 1 The magis- 
 trate who was about to summon an auspicated contio repaired to 
 the templum which he intended to occupy during the meeting. 2 
 After taking the auspices there, and finding the omens favorable, 
 he ordered the crier to call the citizens. 3 His directions to this 
 assistant were prefaced by a solemn wish that the gathering of 
 the citizens might be well, fortunate, auspicious, and advan- 
 tageous to the Roman people, the commonwealth, himself, his 
 colleague or colleagues, and his magistracy. 4 After first issu- 
 ing the summons from the templum the crier repeated it while 
 making the circuit of the walls. 5 Meantime the presiding officer 
 invited the senators, his colleague or colleagues, and the various 
 other magistrates to assist him with their presence and advice. 6 
 The invitation was extended even to opposing tribunes ; 7 and on 
 the other hand a presiding tribune was especially anxious to se- 
 cure the presence and favorable influence of patrician magistrates 
 and of the leading men of the state. 8 When the president 
 saw his friends about him and the people gathered, he called 
 the contio to order, 9 and proceeded to open the meeting with a 
 
 Flaminius (Livy xxvii. 21. I; Cic. Att. i. 14. I; Sat. 14. 33). In general, see Lie- 
 benara, in Pauly-Wissowa, Real-Encycl. iv. 11515 Karlowa, Rom. Rechtsgach. i. 380.. 
 
 1 Cic. Flacc. 7. 16 (contrasting the sitting contio of the Greeks); Brut. 84. 289; 
 Leg- Agr. ii. 5. 13; Acad. Pr. 47. 144; Tusc. iii. 20. 48; Orat. 63. 213. But prob- 
 ably the contio in the Flaminian circus was seated; Mommsen, Rom. Staalsr. iii.. 
 396, n. 3. 
 
 2 P. 107, no. Although the tribune of the plebs did not auspicate their assem- 
 blies, they like other magistrates occupied a templum during the meeting; Livy ii. 
 56. 10. 
 
 8 Censoriae Tabulae, in Varro L. L. vi. 86. For the summons by the consul, 
 see the Commentaria Consularia, ibid. 88; and by the quaestor, Commentarium 
 Anquisitionis of M. Sergius, ibid. 91. 
 
 4 Varro, L. L. vi. 86. 
 
 6 Censoriae Tabulae, in Varro, L. L. vi. 87 : " Praeco in templo primum vocat, 
 postea de moeris item vocat; " cf. 90 f.; Livy xxxix. 32. II; Cic. Fam. vii. 30. I. 
 
 6 Documents, in Varro, L. L. vi. 86, 91. 
 
 7 Livy xxv. 3. 17; Cic. Sat. 50. 107 f. 
 
 8 Caesar, a praetor and friend of the presiding tribune, sat with him on the porch 
 of the temple of Castor and Pollux — used on that occasion as the speaker's plat- 
 form; Plut. Cat. Min. 27; Cic. Vatin. 10. 24 : " In rostris, in illo, inquam, augurato 
 templo ac loco . . . quo auctoritatis exquirendae causa ceteri tribuni pi. principes- 
 civitatis producere consuerunt." 
 
 9 Documents, in Varro, L. L. vi. 8S, 91 ; cf. 93. 
 
THE CONTIO i4S 
 
 prayer. 1 In the case of a resolution to be brought before the as- 
 sembly the magistrate was accustomed first to submit it to the 
 senate, which considered the bill and perhaps suggested altera- 
 tions ; 2 but sometimes measures were brought into the comitia 
 without this senatorial deliberation. 3 In the contio the presiding 
 officer had power to exclude or to limit discussion of his pro- 
 posals. 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 previ- 
 ous to the comitia. The right to address the people belonged 
 primarily to the presiding magistrate. Although the king en- 
 joyed the superior right, the notion that in the regal period no 
 private persons spoke in the assembly seems to be unwarranted. 4 
 The custom of the republic prescribed that the president should 
 grant the privilege not only to his colleagues 5 but also to all the 
 
 1 Livy xxxix. 15. 1 : "Consules in rostra escenderunt, et contione advocata cum 
 solemne carmen precationis, quod praefari, priusquam populus adloquantur, magistratus 
 solent, peregisset consul, ita coepit : Nulli umquam contioni, quirites, tam non solum 
 apta sed etiam necessaria haec sollemnis deorum comprecatio fuit." The prayer was 
 made at the opening of elective as well as of deliberative assemblies (Cic. Mur. I ; 
 Plin. Paneg. 63) by plebeian as well as by patrician magistrates ; (Cic.) Herenn. iv. 
 55. 68. Every speech addressed to the people began with a prayer; Serv. in Aen. 
 xi. 301; Cic. Caecil. 13. 43; Gell. xiii. 23. 1; Mommsen, ^8«. Staatsr. iii. 390, n. 2. 
 
 2 P. 430, 439. 
 
 8 Caesar first brought his agrarian bill before the senate; and calling on the 
 senators one after another by name to say whether they found any fault with it, he 
 promised to amend it or to drop it altogether, if any clause proved unsatisfactory to 
 any member. As the senators would not debate the merits of the proposal, but did 
 all they could to delay its consideration, he offered the bill to the assembly without 
 their consent; and for the remainder of his consulship he brought no more bills 
 before the senate, but referred them directly to the people; Dio Cass, xxxviii. 2-4; 
 cf. p. 148. 
 
 4 Dion. Hal. v. 11. 2; Plut. Popl. 3. Besides the king it was supposed that the 
 interrex and the tribunus celerum alone were competent; Dion. Hal. iv. 71. 6; 75. 1. 
 The ancient writers seem to have been brought to this conception by a desire to con- 
 trast the despotism of the monarchy with the liberty of the republic. But accord- 
 ing to Livy, i. 16. 5 ff., and Cicero, Rep. ii. 10. 20 (cf. Mommsen, Rom. Staatsr. 
 i. 200, n. 6) Proculus Julius, a private person, made a speech in a contio of 
 the regal period; and in judicial assemblies speaking by private persons was neces- 
 sary; cf. Livy i. 26. For the general usage in the primitive European assembly, 
 see p. 169. 
 
 6 In presenting his agrarian bill to the people Caesar first called on his colleague, 
 despite the fact that the latter was known to be opposed to the measure; Dio Cass, 
 xxxviii. 4. 1. 
 
 L 
 
146 THE ROMAN ASSEMBLIES 
 
 higher magistrates. 1 In some cases the invitation was extended 
 to senators 2 and to other distinguished private persons. 3 The 
 tribunes sometimes gave the privilege to freedmen, 4 to foreign 
 kings, 5 and to ambassadors. 6 The early republic did not allow 
 women to be present in political meetings ; 7 but in time this 
 severity began to relax. Livy 8 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 — evi- 
 dently 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. 
 
 1 Commentarium Anquisitionis, in Varro, L. L. vi. 91. Clodius, tribune of the 
 plebs, brought forward the two consuls into the Flaminian circus, where they gave 
 their sanction and formal approval of all the tribune had been saying against Cicero; 
 Cic. Sest. 14. 33. On this occasion the consul Piso condemned Cicero's consulship 
 for its cruelty; Cic. Pis. 6. 14; Red. in Sen. 6. 13. In 44 Cannutius, a tribune of 
 the plebs, introduced into a contio the consul Mark Antony, who spoke regarding 
 the assassins of Caesar; Cic. Fam. xii. 3. 2. Earlier instances are Livy iii. 64. 6; 
 iv. 6. 1 f. A tribune brought the augurs into a contio, to ask of them information 
 concerning the auspices; Cic. Dom. 15. 40. 
 
 2 Although the senators were invited to sit on the platform ( Comm. Anq. in Varro, 
 L. L. vi. 91), speaking by them was exceptional; in the assembly they were no more 
 than eminent private persons; Dio Cass, xxxviii. 4. 4; cf. ch. 5. 
 
 8 E.g. Cic. Alt. iv. I. 6: "Habui contionem. Omnes magistratus praesentes 
 praeter unum praetorem et duos tribunos dederunt." In a certain contio a tribune 
 asked Scipio Aemilianus what he thought of the conduct of Ti. Gracchus; Val. Max. 
 vi. 2. 3. At the suggestion of the consul Piso, Fufius, a tribune, brought Pompey 
 upon the platform and asked his opinion as to the selection of jurors for a particular 
 case; Cic. Att. i. 14. I; cf. Ascon. 50. The tribune M. Servilius invited Cicero to 
 speak in a contio in support of C. Cassius (Cic. Fam. xii. 7. 1), and it was in response 
 to an invitation of another tribune, P. Appuleius {Phil. vi. 1), that he delivered the 
 sixth Philippic. Other references to tribunician invitations are Cic. Att. xiv. 20. 5 ; 
 Dio Cass. xlv. 6. 3. 4 Ascon. 38. 6 Sail. lug. 33 f. 
 
 6 The Rhodian ambassadors were introduced by the tribune Antony to the senate 
 (Polyb. xxx. 4. 6), as the context (cf. § 8) indicates, not as Mommsen, Rom. Staatsr. 
 ii. 313, u. 1, supposes, to the people. There is no question, however, as to the right 
 of a magistrate to bring such persons before the popular assembly. 
 
 7 Val. Max. iii. 8. 6: "Quid feminae cum contione? Si patrius mos sevetur, 
 nihil." The lex Horatia, which is alleged to have granted the Vestal Gaia Taracia 
 among many honors the right to give testimony [Gell. vii (vi). 7. 1-3], and which 
 is assigned by Cuq {Inst, jurid. d. Rom. i. 255; and in Daremb. et Saglio, Diet. iv. 
 1145) to the consul Horatius, 509, is a myth (Lange, Rom. Alt. ii. 608), though 
 doubtless in the course of the republic laws of the kind were occasionally passed, the 
 language of which might be quoted by the annalists (Gell. 1. c). The rule that 
 women were intestabiles is proved by such exceptions. 8 XXXIV. 2. 11. 
 
THE CONTIO 
 
 '+7 
 
 From the time of the Gracchi they occasionally spoke in public. 
 Dio Cassius 1 states that Tiberius Gracchus brought his mother 
 and children into a contio to join their entreaties with his ; and 
 according to Valerius Maximus 2 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 com- 
 plainants. 3 It was an accepted custom that no tribune should 
 intercede against a measure till an opportunity had been af- 
 forded private persons to speak for or against it. 4 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. 5 Although the president could, and per- 
 haps 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 ac- 
 counts for its designation as a concilium. 6 Those invited to 
 speak, if citizens, had to be of good standing and not under dis- 
 qualification through a special law or usage. The rex sacrorum 
 was prohibited not only from holding any other office but also 
 from addressing an assembly. 7 The spendthrift 8 and the man 
 condemned for extortion 9 were likewise forbidden. When the 
 right was granted as a special distinction, the receiver was prob- 
 ably placed thereby on a footing of equal dignity with the 
 magistrates. 10 
 
 1 Frag. 83. 8. 2 III. 8. 6. 
 
 8 Appian, B. C. iv. 32-4; see also p. 326. 4 Livy xlv. 21. 6; 36. 1. 
 
 6 Livy xlv. 36; cf. the statement of Dion. Hal. a. 41. I, that on a certain occasion 
 the crier invited all who wished to speak. These two passages are credible, notwith- 
 standing the doubt expressed by Mommsen, Rom. Staatsr. iii. 395, n. 2, if we regard 
 the general invitation as a concession on the part of the presiding magistrate rather 
 than as a right of the people. 6 P. 136. ' Plut. Q. R. 63. 
 
 8 Quint. Inst. iii. II. 13: "Qui bona paterna consumpserit, ne contionetur." 
 
 9 (Cic.) Herenn. i. 11. 20; cf. Lex Bant. (133-118 B.C.) in CIL. i. 197. 2 f. 
 
 10 Such a grant in Alexandria Troas, mentioned by CIL. iii. 392, Mommsen (Rom. 
 Staatsr. i. 201, .1. 3) believes to have been in imitation of Roman usage. 
 
148 THE ROMAN ASSEMBLIES 
 
 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. 1 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 usur- 
 pation, probably based on their power to arrest and imprison. 2 
 
 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. 3 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, 4 he first 
 asked his colleague whether he had any objection to the pro- 
 posal. 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 en- 
 treaty, 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 
 
 1 Varro, Rer. hum. xxi, in Gell. xiii. 12. 6. 
 
 2 Ibid. ; cf. Val. Max. iii. 7. 3 : " C. Curiatius tr. pi. productos in contionem con- 
 sules compellebat ut de frumento emendo referrent." Mommsen's interpretation 
 (Rom. Staatsr. ii. 313, n. 2), that the tribunes could not summon the consuls but 
 could compel them to speak when present, is not altogether satisfactory. The com- 
 ment of Gellius (§ 7 f. : " Hums ego juris, quod M. Varro tradit, Labeonem arbitror 
 vana tunc fiducia, cum privatus esset, vocatum a tribunis non isse. Quae, malum, 
 autem ratio fuit vocantibus nolle obsequi, quos confiteare ius habere prendendi? 
 Nam qui iure prendi potest, et in vincula duci potest ") supports the view given above 
 in the text. A magistracy might afford some degree of protection, but on the prin- 
 ciple enunciated by Gellius the tribune, who had the power to arrest a consul, was 
 in a position practically to compel him to appear at a public meeting. As further 
 examples of the president's power to force speaking, Cato, a tribune of the plebs, 
 compelled the keepers of the Sibylline books to come before the people in contio 
 and declare the prophecy ; Dio Cass, xxxix. 15. 4 ; cf. also Cic. Vatin. 10. 24; 
 Att. ii. 24; Plut. Cic. 9; Dio Cass, xxxvi. 44. 1. 
 
 3 P- 146. * P. 145, «• 3- 
 
THE CONTIO 149 
 
 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 re- 
 questing the people to beg of him this favor. They did so, 
 doubtless by acclamation; and Pompey, greatly flattered be- 
 cause the consul and the people besought help of him, a private 
 citizen, promised to stand by the law. 1 
 
 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. 2 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. 3 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, 4 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 accord- 
 ingly 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. 6 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 " ; 6 or more formally, " In my opinion 
 
 1 Dio Cass, xxxviii. 2-5. 
 
 2 Cic. Att. ii. 24. 3 : " Caesar, is qui olim praetor cum esset, Q. Catulum ex in- 
 feriore loco iusserat dicere, Vettium in rostra produxit; " Vatin. 10. 24: "Cum 
 L. Vettium ... in contionem produxeris, indicem in rostris, in illo, inquam, augu- 
 rato templo ac loco collocaris, quo auctoritatis exquirendae causa ceteri tribuni pi. 
 principes civitatis producere consuerunt." 
 
 8 Dio Cass, xxxix. 34. 2; Plut. Cat. Min. 43. 
 
 * Or as Foster translates, " about the distressing condition of the times." 
 
 5 Dio Cass, xxxix. 34 ; Plut. ibid. 6 Cic. Imp. Pomp. 24. 69. 
 
i 5 o THE ROMAN ASSEMBLIES 
 
 this bill as presented ought to be passed, and may it prove well, 
 auspicious, and fortunate both to yourselves and to the re- 
 public"; 1 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." 2 
 
 Sometimes the magistrates were invited in the order of then- 
 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. 3 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. 4 
 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. 5 
 
 After the deliberation, or after the formality of opening the 
 contio which was merely preliminary to the comitia, the presi- 
 dent 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," 6 or more 
 generally, " If you think fit, quirites, move apart (into your 
 voting groups)." 7 At the same time he ordered the departure 
 of all who lacked the qualification for voting. 8 The lictors of 
 the magistrates with imperium and the beadle (viator) of the 
 tribune attended to clearing away the unqualified. 9 
 
 1 Livy x. 8. 12. 2 Ibid, xxxiv. 4. 20. s Dio Cass, xxxix. 35. 1. * Ibid. 
 
 6 Livy ii. 56. 9 : " Quirites, . . . crastino die adeste." 
 
 6 Commentaria Consularia, in Varro, L. L. vi. 88 : " Impero qua convenit ad 
 comitia centuriata." 7 Livy ii. 56. 12 : *' Si vobis videtur, discedite, quirites." 
 
 8 Preparatory to voting, the plebeian tribune Laetorius ordered the removal of 
 all, including patricians, who were not to vote; Livy ii. 56. 10: "Submoveri Laeto- 
 rius iubet praeterquam qui suffragium ineant." 
 
 9 In the case referred to in the note above, some of the young patricians stood 
 their ground and refused to give way before the viator; § II; cf. Dion. Hal. ix. 48. 
 Again on other occasions the patricians when ordered refused to withdraw before the 
 voting (cf. Livy iii. n. 4), from which we may infer that the right to attend the 
 comitia presided over by tribunes was claimed by the patricians but denied them by 
 the tribunes. The word used in these passages to designate the removal of the 
 unqualified is " submovere." In Livy xxv. 3. 16 (cf. Cic. Flacc. 7. 15) " tribuni pop- 
 ulum summoverunt " has reference to the adjournment of the people to their voting 
 divisions, and probably also to the exclusion of those who had no right to vote ; cf. 
 Mommsen, Rom. Staatsr. iii. 390, n. 1. 
 
THE CONTIO 151 
 
 Schulze, C. F., Volksversammlungen der Romer, 141 ff., 243 ff. ; Rubino, 
 J., Rom. Verfassung und Geschichte, 240-53 ; Lange, L., Rom. Altert'umer, ii. 
 715-23, and see indices s. v. ; Mommsen, Th., Rom. Staatsrecht, i. 191-209; 
 iii. 370-8, and see index s. v. ; Willems, P., Droit public Rom. 158 f. ; Herzog, 
 E., Rom. Staatsverfassung, i. 632-6, 1057 f., and see index s. v. ; Karlowa, O., 
 Rom. Rechtsgeschichte, L 48 f., 379-81 ; Madvig, J. N., Verf. u. Verw. d. rom. 
 Staates,'\. 219; Soltau, W., Attrbm. Volksversammlungen, 37.fr. ; Humbert,, 
 G., Contio, in Daremberg et Saglio, Diet. i. 1484 f. ; Liebenam, W., Contio, in 
 Pauly-Wissowa, Real-Encycl. iv. 1149-53; Ruggiero, Diz. ep. ii. 1185, s. Con- 
 tio; 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 tra- 
 dition. In its earliest known form the European popular 
 assembly had the following characteristics, provisionally enu- 
 merated here, but established in the next chapter: (i) 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 pro- 
 posed by none but chiefs or nobles, generally after previous 
 discussion in council, the common members wholly lacking ini- 
 tiative; (4) the speakers were as a rule, though not exclu- 
 sively, 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, (6) for 
 securing by their eloquence the cooperation of the tribe in a 
 plan already formed in council. However far developed beyond 
 this crude institution the comitia curiata or the comitia centu- 
 riata of the republican period may have been, traces of all the 
 characteristics above mentioned may be found in the histori- 
 cal Roman assembly 1 — 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 
 
 1 Acclamation was retained as a regular form of voting by the army; p. 202; 
 cf. Bernhoft, Rom. Konigsz. 153. 
 
 152 
 
THE CALATA COMITIA 153 
 
 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 1 and of the passing of other privilegia (vo/ioi iir 
 avSpi). 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 emancipa- 
 tions, 2 though in the process the military companies did not 
 vote as units. In like manner, but for a wider range of func- 
 tions, 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. 3 
 
 All assemblies which met under pontifical presidency for 
 religious purposes were called calata, 4 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 
 
 1 Philochorus, 79 b, in Muller, Frag. Hist. Graec. i. 396. The condemnation of 
 the generals who fought at Arginusae was voted in the same way ; Xen. Hell. i. 7. 9. 
 
 2 Cf. Schroder, Deutsche Rechtsgesch. 16. 
 
 8 It is interesting in this connection that in the Homeric assembly the heralds 
 (K-flpvuei), who were a sacerdotal class, kept order ; cf. II. ii. 97 f. In the German 
 assembly the priests with coercive power maintained quiet; Tac. Germ. ii. 3; 
 Schroder, Deutsche Rechtsgesch. 22 f. The Irish assemblies were of religious origin, 
 and maintained some religious features till after the introduction of Christianity ; 
 Ginnell, Brehon Laws, 42, 44. 
 
 4 They excluded on the one hand comitia for religious purposes presided over by 
 a political magistrate — for instance, the comitia centuriata under the censor for the 
 lustrum (p. 141 ) — and on the other the meetings of the people under pontifical presi- 
 dency for secular business, such as an appeal to the comitia from the pontifical impo- 
 sition of fines (cf. Livy, xl. 42. 9), the meeting of the plebs under the supreme 
 pontiff for the election of plebeian tribunes after the fall of the decemvirate (Cic. 
 Cornel, in Ascon. 77; Livy, iii. 54. 5, n), and the meeting of seventeen tribes for 
 the election of sacerdotes. In the three exceptional instances last mentioned the 
 comitia are tributa, which are never calata. 
 
154 THE ROMAN ASSEMBLIES 
 
 the technical language of the sacerdotes. 1 In the latter connec- 
 tion it designates the peculiar method of summoning used by 
 the pontiffs. 2 Probably, at least in earlier time, their calatores 
 acted as curiate lictors in convoking the calata comitia curiata, 3 
 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. 4 The usual meeting-place of the calata comitia 
 curiata was in front of the curia Calabra on the Capitoline Hill. 6 
 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. 6 
 First to be noted of the non-voting assemblies were those in 
 which the people gathered in comitia under the presidency of 
 the king, 7 in the republic under the rex sacrorum, to hear the 
 proclamation of the fasti. On the calends of each month a 
 
 1 Kindred words are calendae, Calabra, calator. As late as Plautus (Pseud. 1009 ; 
 Merc. 852 ; Rud. 335) a common use of calatores was to designate slave messen- 
 gers ; cf. Fest. ep. 38 ; Corp. Gloss. Lat. ii. 95. 42 : Sov\oi SijfJiaioi. This use 
 became obsolete, but the word continued to apply to certain assistants of the sacer- 
 dotes ; Serv. in Georg. i. 268 ; Corp. Gloss. Lat. ii. 96. 3 ; iv. 214. I ; v. 275. I ; 
 595. 34, 63; 563. 66; CIL. vi. 712, 2053. 5; 2184-90, 3878; x. 1726; also the 
 inscr. recently discovered in the Forum; cf. Holzapfel, in Jahresb.f. Altwiss. 1905. 
 263, 265 H. ; Warren, in Am. Journ. of Philol. xxviii (1907). 249-72. In all the 
 known instances they were freemen, often freedmen ; Saglio, in Daremberg et 
 Saglio, Diet, i. 814. For other citations, see Samter, in Pauly-Wissowa, Real-Encycl. 
 iii. 1335 f. They correspond to the lictors of the magistrates. 
 1 2 Varro, L. L. v. 13 : "Nee curia Calabra sine calatione potest aperiri." 
 
 8 Saglio, in Daremberg et Saglio, Did. i. 814 ; Humbert, ibid. i. 1375. But the 
 comitia curiata were convoked by lictors according to Gell. xv. 27. 2 : " Curiata 
 (comitia) per lictorem curiatum calari, id est convocari " ; Theophilus, Paraphr. 
 Inst. ii. 10. I. Possibly the lictor curiatius (or curiatus; CIL. iii. 6078) should in 
 this case be identified with the calator. 
 
 4 Labeo, in Gell. xv. 27. if.: " Calata comitia esse, quae pro collegio pontificum 
 habentur aut regis aut flaminum inaugurandorum causa ; eorum autem alia esse 
 curiata, alia centuriata." From this statement we learn that the calate assemblies 
 for inaugural purposes were organized either in curiae or in centuries. As " comitia " 
 connotes organization (p. 135), we may be sure that in all calata comitia the people 
 stood in their voting groups. On the centuriate comitia calata, see p. 156. 
 
 5 Varro, L. L. v. 13; vi. 27; Fest. ep. 49; Macrob. Sat. i. 15. 9 f. ; Fast. 
 Praenest. Kal. Ian., in CIL. i. 2 p. 231 ; Jordan, Top. d. Stadt Rom, I. ii. 51 ; 
 Rubino, Rom. Verf. 245, n. I ; Lange, Rom. All. i. 398 f. ; Hulsen, in Pauly-Wis- 
 sowa, Real-Encyd. iv. 1821. R Humbert, in Daremberg et Saglio, Did. i. 1376. 
 
 7 He may have appointed a priestly substitute for such functions. 
 
THE CALATA COMITIA 155 
 
 pontifex minor, as clerk of the college, 1 announced to them on 
 what day, whether the fifth or seventh, the nones would come. 2 
 On the nones the king again summoned the people to hear the 
 calendar of the month, 3 read probably by the same pontifex 
 minor. This custom fell into disuse with the publication of the 
 calendar in the Forum, beginning in 304. 4 
 
 Equally passive were those comitia calata which under the 
 presidency of the supreme pontiff witnessed the inauguration 
 of the three flamines maiores, 5 probably of the king in the 
 
 1 Livy xxii. 57. 3; "Scriba pontificis, quos nunc minores pontifices adpellant." 
 That he acted in behalf of the college is proved by Varro, Z. L. vi. 27 (note below) . 
 
 2 Varro, Z. Z. vi. 27 : " Frimi dies mensium nominati Kalendae, quod his diebus 
 calantur eius mensis nonae a pontifkibus, quintanae an septimanae sint futurae in 
 Capitolio in curia Calabra"; Hemerol. Pracnest. Ian. I, in CIL. \? p. 231 : " Hae et 
 (aliae pri) mae calendae appellantur, quia (eorum pri) mus is dies est quos pont(i)fex 
 minor quo(vis anni) mense ad nonas sin(gulas currere edicit in capi)tolio in curia 
 cala(bra)"; Macrob. Sat. i. 15. 9 f. : "Pontifici minori haec provincia delegabatur, 
 ut novae lunae primum observaret aspectum visamque regi sacrificulo nuntiaret. 
 Itaque sacrificio a rege et minore pontifice celebrato idem pontifex calata, id est 
 vocata in Capitolium plebe iuxta curiam Calabram . . . quot numero dies a Kalendis 
 ad Nonas superessent pronuntiabat." Serv. in Aen. viii. 654 and Plut. Q. R. 24 are 
 inexact, and still more confused is Lyd. Mens. iii. 7 ; cf. Mommsen, Rom. Siaatsr. 
 ii. 39, n. I. In the opinion of Mommsen the announcement on the calends was not 
 to an assembly, but was merely preparatory to the assembly on the nones ; but the 
 words of Macrobius (vocata . . . plebe) clearly indicate a gathering of the people on 
 that day. 
 
 8 Varro, Z. Z. vi. 13, 28 ; Macrob. Sat. i. 15. 12 ; cf. Herzog, RSm. Staatsverf. i. 
 109 and n. I. Mommsen, Rom. Siaatsr. ii. 40, n. 2, warns us against confusing " this 
 unorganized contio " with the comitia calata, which are always organized in curiae or 
 in centuries. Labeo, in Gell. xv. 27. 1, states, however, that calata comitia were held 
 for the inauguration of the king and priests. If for this occasion the purely passive 
 assembly was organized in voting divisions, there can be no reason for doubting that 
 it was organized also on the occasion in question, when it met in the assembly-place 
 of the calata comitia — a place which could not be opened sine calatione — and its 
 convocation was designated by " calare " not " vocare." It is significant that the 
 phrase " calata contio " is never used. Mommsen gives no authority or reason for 
 his assumption ; cf. Lange, Rom. Alt. i. 398 ; Herzog, Rom. Staatsverf. i. m; 
 Marquardt, Rom. Staatsv. iii. 283, 323 ; Wissowa, Relig. u. Kult. d. Romer, 440, for 
 the view here maintained that the assembly for hearing the calendar was calata. 
 
 4 Macrob. Sat. i. 15. 9. 
 
 6 For the inauguration of the flamen Dialis, see Gaius i. 130 ; iii. 1 14 ; Ulpian, 
 Frag. 10. 5 ; Livy xxvii. 8. 4 ; xli. 28. 7; the flamen Martialis, Livy xxix. 38. 6; xlv. 
 15. 10; Macrob. Sat. iii. 13. n; the flamen Quirinalis, Livy xxxvii. 47. 8; cf. Wis- 
 sowa, Relig. u. Kult. d. Romer, 420, n. 3. The inauguration of augurs probably took 
 place in their own college. 
 
156 THE ROMAN ASSEMBLIES 
 
 regal period, and certainly of the rex sacrorum under the re- 
 public. 1 As warlike Mars had his shrines outside the pome- 
 rium, 2 his chief temple being in the Campus Martius, 3 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. 4 The inaugural ceremonies 
 were performed by an augur ; 6 in the case of the sacerdotes it 
 was the supreme pontiff who requested this service of him, 6 
 whereas the king could doubtless command an augur without 
 the cooperation 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. 7 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. 8 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. 9 
 
 Assemblies of the people were organized in curiae by the 
 pontiffs for the religious purposes mentioned above, while polit- 
 ical 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 
 
 J For the inauguration of the rex sacrorum, see Livy xxvii. 36. 5; xl. 42. 8. Livy's 
 description of the inauguration of Numa (i. 18. 6-9) probably follows the historical 
 usage in the case of the rex sacrorum. 
 
 2 Serv. in Aen. vi. 859. * Aust, Relig. d. Romer, 130. 
 
 * Mommsen, Rom. Staatsr. iii. 307, n. 1. This is the only function discovered for 
 the calata comitia centuriata, mentioned by Labeo, in Gell. xv. 27. 2. The origin of 
 the inauguration must have preceded that of the centuriate assembly; it must there- 
 fore have taken place for a time in some other form of meeting. Kubler, in Pauly- 
 Wissowa, Real-Encycl. iii. 1331, objects to this interpretation but finds nothing better. 
 
 5 Cic. Brut. I (of an augur); Phil. ii. 43. no (of a flamen); Leg. ii. 8. 21 (uf 
 sacerdotes); Macrob. Sat. iii. 13. II (of the flamen Martialis); Livy. i. 18. 6 (of the 
 king). 
 
 6 Fest. 343. 8; Wissowa, Relig. u. Kult. d. Romer, 420, n. 5, 421, n. I. 
 
 ' Gell. i. 12. n, citing the lex Papia. Gellius calls this assembly a contio, which 
 includes the calata comitia; cf. xv. 27. 3: "Calatiis comitiis in populi contione." 
 8 P. 161, 163, 165. o P. 157 f. 
 
THE CALATA COMITIA 157 
 
 among other early peoples, 1 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 f rangere, fragor, " a breaking," " crash," " din," ap- 
 plause," 2 the prefix sub- expressing the dependence of the action 
 upon the proposal of the speaker, as in the military succlamare, 
 succlamatio. 3 We may well believe that even after the organ- 
 ization of the assembly as comitia — that is, in curiate, cen- 
 turiate, or tribal divisions * — 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. 5 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 6 — 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 pur- 
 pose, 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. 7 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. 8 It has been a disputed question whether the 
 oldest form of testament here referred to required a vote of the 
 people. Rubino 9 strongly upheld the negative on the ground 
 (1) of analogy with the procedure in inaugurations, (2) of anal- 
 ogy with other forms of testament, none of which required a 
 
 1 P. 170. 2 Quint. Inst. viii. 3. 3: fragor here signifies "thunders of applause.'* 
 
 8 Cic. Fam. xi. 13. 3; Livy xxviii. 26. 12; xl. 36. 4; xlii. 53. 1. 
 
 4 P. 135. 6 P. 74 f., 96. 6 P. 21 1. 
 
 7 On the meaning of suffragium, see the excellent article by Rothstein, in Fest- 
 schrift zu Otto Hirschfelds 6ostem Geburtstage, 30-3. 
 
 8 Gell. xv. 27. 3 : " Isdem comitiis, quae calata appellari diximus, . . . testamenta 
 fieri solebant "; Gaius ii. 101 : " Calatis comitiis testamentum faciebant, quae comitia 
 bis in anno testamentis facienclis destinata erant"; Theophilus, Paraphr. Inst. ii. 
 IO. I. 
 
 9 Rom. Verf. 242-5, with notes, following J. H. Dernburg, Beitr. zur Gesch. der 
 rbm. Testament!, i. 53-78. 
 
158 THE ROMAN ASSEMBLIES 
 
 vote, (3) of the word testamentum itself, which refers to wit- 
 nessing, (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, 1 who mentions the people's witnessing 
 of the testament, (6) on the statement of Gellius 2 that wills of 
 the kind were made " in populi contione." Against this rea- 
 soning 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, 3 (3) the consideration that the act of witness- 
 ing in the assembly did not necessarily exclude a vote, (4) the 
 statement of Gaius 4 that calata comitia were convoked "for 
 making" — not for witnessing — testaments, (5) the circum- 
 stance that the contio was often a preliminary stage of the 
 voting assembly 6 in addition to the fact that pontifical language 
 applies the term to comitia in general. 6 These arguments off- 
 set 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. 7 The primitive Germans 
 accordingly made no wills, but left their property to their chil- 
 dren, or in failure of children to the near kin. 8 In Attica the 
 right to bequeath was instituted by a law of Solon, which 
 allowed it to those only who had no legitimate sons ; 9 in Sparta 
 
 1 Paraphr. Inst. ii. IO. I, p. 154 ed. Ferrini : '0 Pov\6fiemt fori /xiprvpt SterWero 
 
 2 XV. 27. 3. This view is accepted by Lange, Rom. Alt. i. 398 f.; Schiller, Rom. 
 Alt. 628; Soltau, Altrbm. Volksversamml. 39; Mommsen, Rom. Forsch. i. 126, 239, 
 270; Madvig, Rom. Staat. i. 221; Kubler, in Pauly-Wissowa, Real-Encycl. iii. 1333; 
 Mispoulet, Inst, polit. Rom. i. 202 f., 
 
 3 P. 161. * II. 101. 6 P. 143. « P. 139. 
 
 7 Schrader, Reallex. 221, 864; Leist, Alt-arisch. Jus Gent. 419; Alt-arisch. Jus 
 Civ. ii. 171 ; Fustel de Coulanges, Ancient City, 104. 
 
 8 Tac. Germ. 20. 5. The oldest Frankish laws make no mention of testaments; 
 Schrader, ibid. 865. 
 
 9 Demosth. xx. 102; Plut. Sol. 21 ; Telfy.in CJA. 1399-1412, with comment, p. 6l3ff. 
 
THE CALATA COMITIA 159 
 
 the right was introduced by Epitadeus, perhaps early in the 
 fourth century B.C. 1 Testaments were unknown in Gortyn at 
 the time when the Twelve Tables of this city were published, 2 
 and similar conditions existed in other states of Greece. 3 The 
 rule holds, too, for ancient India. 4 The Slavic householder 
 could not alienate his land without the consent of the commu- 
 nity. 5 As there is no reason to assume a more advanced con- 
 dition for primitive Rome, we may conclude that, as indicated 
 above, the calata comitia not only witnessed but ratified testa- 
 ments. 6 
 
 Mommsen has attempted to fix these days as March 24 and 
 May 24/ on which the rex sacrificulus performed comitial 
 ceremonies not clearly described by the sources. 8 He admits, 
 however, that the testamentary comitia met under the pontifex 
 maximus rather than under the rex sacrorum 9 — a fact directly 
 opposed to his contention. We should be surprised also to find 
 the testamentary days so close together. 10 But the most effec- 
 tive 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. 11 The ancient 
 
 1 Plut. Agis, 5 ; cf. Thumser, Griech. Staatsalt. 259. 
 
 2 Biicheler und Zitelmann, Rechtvon Gortyn, 134. 
 
 8 Aristot. Polit. 1309, a 24; cf. Thalheim, Griech. Rechtsalt. 61. 
 
 4 Fustel de Coulanges, Anc. City, 105; Leist, Alt-arisch. Jus Civ. ii. 171. 
 
 6 Schrader, Sprachv. und Urgesch. ii. 8 (1907). 374 f. 
 
 6 This view is held by Schrader, ibid. 865 ; Ihering, Geist des rotn. Rechts, i. 
 145 ff.; Mommsen, Rom. Staatsr. ii. 37 f.; iii. 318 ff.; Kappeyne van de Coppello, 
 Comitien, 67; Poste, Gai Inst. 178; Hallays, Cornices, 18; and with some hesitation 
 by Herzog, Rom. Staatsverf. i. no, 1 1 8, 1063. 
 
 7 Rom. Chronol. 241 ff.; Rom. Staatsr. ii. 38, n. 2; iii. 319; CIL. i? p. 289; 
 accepted by Lange, Rom. Alt.'i. 399; Kfibler, in Pauly-Wissowa, Real-Encycl. iii. 
 1331; Marquardt, Rom. Staatsv. iii. 323. 
 
 8 Q(uando) R(ex) C(omitiavit) ; CIL. i. p. 291 f. after the two days men- 
 tioned; cf. Varro, Z. Z. vi. 31: "Dies, qui vocatur sic, 'Quando Rex Comitiavit, 
 Fas ' is dictus ab eo quod eo die rex sacrifiolus litat (or perhaps venit, MS. dicat) ad 
 comitium, ad quod tempus est nefas, ab eo fas; itaque post id tempus lege actum 
 saepe"; Fest. ep. 259: "Quando Rex Comitiavit Fas, in fastis notari solet, et hoc 
 videtur sign ificare, quando rex sacrificul us divinis rebus perfectis in comitium venit " ; 
 Ovid, Fast. v. 727; Plut. Q. R. 63; Fast. Praenest. Mart. 24; for other citations, see 
 CIL. i 2 . p. 289. 
 
 9 Rom. Staatsr. ii. 38, n. 2. 10 Herzog, Rom. Staatsverf. i. 1 10, n. 2. 
 11 See note 8 above; cf. Wissowa, Rclig. u. Kult. d. Rbmer, 440, n. 6. 
 
160 THE ROMAN ASSEMBLIES 
 
 authorities state that "the sacrificial king, after performing 
 sacred rites, comes into, or makes a sacrifice in (venit or litat), 
 the comitium," 1 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 testa- 
 ment above described fell early into disuse, 2 so that the condi- 
 tions 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. 3 Adrogatio was the 
 adoption of a person who was his own master and who accord- 
 ingly 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. 4 It was not undertaken rashly or without 
 careful consideration. 5 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." 6 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. 7 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 con- 
 dition ; 8 and the testimonies were confirmed by an oath formu- 
 lated by Q. Mucius Scaevola. 9 
 
 1 See p. 159, n. 8 above. a Gaius ii. 101, 103. 
 
 8 Cic. Dom. 13. 34; cf. Leonhard, in Pauly-Wissowa, Real-Encycl. i. 398 ft. 
 * Gell. v. 19. 4, 6 f. ; Gaius i. 99; Cic. Alt. ii. 12. 2; Dom. 15. 39. 
 
 5 Gell. v. 19. 5. « Cic. Dom. 13. 34. ' Gell. v. 19. 6. 8 Gaius i. 99. 
 
 9 Gell. v. 19. 6; cf. the leaden tessera showing on the face a man taking another 
 by the hand and the word Adoptio beneath; on the back are three officials seated, 
 doubtless pontiffs, with the word Collegium beneath; Helbig, in Compt. rend. d. 
 I'acad. d. inscr. et bdl.-Ul. xxi (1893). 35°-3- It evidently illustrates the preliminary 
 stage of an adrogatio ; see also Tac. Hist. i. 15. 
 
THE CALATA COMITIA 161 
 
 If the pontiffs gave their consent, the case came before the 
 comitia curiata under the presidency of the chief of the college, 1 
 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." 2 The curiae 
 decided by vote. 3 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 4 — and by a similar 
 declaration the adrogator received him into the sacra of the 
 new family. 5 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 guar- 
 dians were not allowed under any circumstances to place their 
 wards in the power of another. 6 
 
 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 ; 7 afterward he 
 "was declared adopted by a vote of the curiae. 8 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. 9 
 
 1 Gell. v. 19. 5 f . : " Adrogationes non temere neque inexplorata committuntur; 
 nam comitia arbitris pontificibus praebentur, quae curiata appellantur "; Tac. Hist. i. 
 15 : " Si te privatus lege curiata apud pontifices, lit moris est, adoptarem." Rubino, 
 Horn. Verf. 253, supposes that these comitia were under a civil magistrate; but the 
 expressions " arbitris pontificibus " and " apud pontifices " prove pontifical manage- 
 ment. Caesar, who passed the curiate law for the arrogation of Clodius, was supreme 
 pontiff as well as consul. 2 Gell. v. 19. 9. 
 
 8 Gell. v. 19. 8; Tac. Hist. i. 15; Cic. Dom. 15. 39; All. ii. 12. 2; Dio Cass. 
 xxxvii. 51. if. Mommsen, Rom. Forsch. i. 1 26, 270, supposed that the curiae simply 
 witnessed the transaction, without giving their vote; but afterward (Rom. Staatsr. 
 -iii. 38) he changed his mind. * Gell. xv. 27. 3. 
 
 6 This seems to be the meaning of Serv. in Aen. ii. 156 : " Consuetude apud anti- 
 quos fuit, ut qui in familiam vel gentem transiret, prius se abdicaret ab ea in qua 
 fuerat et sic ab alia acciperetur." 6 Gell. v. 19. 8, 10. 
 
 7 Appian, B. C. iii. 14. 49. 8 Ibid. iii. 94. 389; Dio Cass. xlv. 5. 3. 
 
 9 On the testamentary adoption, see further Leonhard, in Pauly-Wissowa, Real- 
 JLncycl. i. 420 f. 
 
 M 
 
1 62 THE ROMAN ASSEMBLIES 
 
 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, 1 or more gener- 
 ally to widen the range of one's eligibility to office. 2 The his- 
 tory of the republic affords several instances of the transition of 
 individuals; 3 and two plebeian gentes, the Octavia 4 and the 
 Minucia, 5 boasted of having passed over from the patricians. 
 Even if these boasts rest upon genealogical falsifications, 6 the 
 Romans thought such an act legally possible ; and they formu- 
 lated 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 with- 
 out recourse to adrogatio. First he abdicated his nobility by an. 
 oath, probably taken in the comitia calata; 7 then coming before 
 an assembly of the plebs, he held himself ready to receive 
 plebeian rights through a resolution introduced by the tribune 
 Herennius. 8 The process allowed the retention of the name, 
 sacra, and all other privileges not dependent on the patriciate. 9 
 
 1 Zon. vii. 15. 9. 2 Cic. Dom. 14. 37; Scaur. 33; Ascon. 25.. 
 
 3 Mommsen, Rom. Forsch. i. 1 23 ff., has collected the cases. 
 
 4 Suet. Aug. m. 6 Livy iv. 16. 3. 6 Cic. Brut. 16. 62* 
 
 7 Dio Cass, xxxvii. 51. 1 : Ti}k re eiyiveiav IJu/idtraTO. The similarity of this oath 
 to the detestatio sacrorum warrants the conclusion that it, too, was taken in the 
 calata comilia. The abjuration of one's rank, however, was not a detestatio sacro- 
 rum, for the reason given in n. 8 below. 
 
 8 Dio Cass, xxxvii. 51. I : Kal wp&s ra tov irX^ffous Straiti/utra, h airiv <r<puiv rbr 
 aiWoyov iatXB&v, neriaTi) ; Cic. Alt. i. 18. 4: " C. Herennius . . . tribunus pi. 
 ... ad plebem P. Clodium traducit." Cicero's following statement (" Idemque 
 fert, ut universus populus in campo Martio suffragium de re Clodi ferat ") signifies- 
 that Herennius was proposing to bring the question not before the centuries, as 
 Drumann-Grobe, Gcsch. Roms, ii. 188, n. 3, imagines, for a tribune had no means of 
 doing so, but before the thirty-five tribes, who were the universus populus (Cic. Leg, 
 Agr. ii. 7. i6f.) in contrast with the curiate comitia represented by thirty lictors; cf_ 
 p. 129 f. 
 
 9 The falsification of pedigrees by plebeian families to prove descent from 
 patrician ancestors of the same name is sufficient evidence that the name was- 
 retained through the transition; cf. Lange, Kleine Schriften, ii. 7 f. Were not the- 
 sacra retained, the transition of an entire gens would mean the destruction of its old 
 religion and the creation of a new one — which is impossible. For this reason it 
 appears that the detestatio sacrorum did not apply to such cases of transition. 
 
THE CALATA COMITIA 163 
 
 But Metellus, the consul, objected that a curiate law was needed 
 to make the act valid, and the senate evidently agreed with him. 1 
 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. 2 The complete 
 process accordingly would have been the abjuration of the patri- 
 ciate, 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 there- 
 fore 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, 3 he yielded for the present, and in the following year 
 had himself arrogated by a plebeian named Fonteius, from whom 
 he was forthwith emancipated. 4 This procedure, too, allowed 
 him to retain the gentile name of his birth, 6 his imagines and 
 sacra, 6 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 privi- 
 leges, with the understanding that in this case the arrogatio was 
 not for the customary object but to enable him to change his rank. 7 
 
 1 Lange, ibid. ii. 19. 
 
 2 The fact that he promulgated a bill of the same tenor as that of Herennius, even 
 if it was merely for the sake of appearance, as Cicero, Alt. i. 18. 5, alleges, favors the 
 latter view. 8 Cic. Alt. i. 19. 5. 
 
 4 Dio Cass, xxxvii. 51. 2; xxxviii. 12. 1 {.; Cic. Dom. 13. 35; 29. 77. 
 
 s Cic. Dom. 14. 37 : " Nam adopt atum emancipari statim, ne sit eius filius qui 
 adoptarit"; 13. 35: "Tu (Clodi) neque Fonteius es, qui esse debebas, neque patris 
 heres neque amissis sacris paternis in haec adoptiva venisti." In Har. Resp. 27. 57 
 ("Iste parentum nomen, sacra, memoriam, gentem Fonteiano nomine obruit") 
 Cicero does not say that Clodius assumed the gentile name of Fonteius, but rather 
 that he used this name as a means of destroying the name, sacra, etc. of his parents; 
 and.in fact he continued to be called Clodius; cf. Dio Cass, xxxix. 23. 2 (official use). 
 He claimed still to belong to the Clodian gens rather than to the Fonteian (Cic. 
 Dom. 44. 116), whereas Cicero, looking upon the emancipation as a sham, insists 
 that he was a Fonteian. 
 
 6 That he retained the Claudian imagines is implied in Cic. Mil. 13. 33; 32. 86. 
 He must therefore have kept the rest of the sacra. 
 
 7 Lange, Kltine Schriftcn, ii. 23 ff. Cicero aims to bring the greatest possible 
 confusion into the case by representing Clodius as having given up his native religion 
 
164 THE ROMAN ASSEMBLIES 
 
 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 cooptation into the senate. 1 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 2 apparently has in mind the consuls' function of 
 recruiting the senate before the Ovinian legislation, 3 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, 4 
 proposed by L. Cassius Longinus and supported by a senatus 
 consultum, 6 empowered Caesar to recruit the patrician rank. 
 Octavianus proceeded in a similar manner except that a con- 
 sular law, 6 approved also by a senatus consultum, 7 was passed 
 for the purpose. As the object was religious, we may suppose 
 that the qualifications of the candidates were previously ex- 
 amined by the pontifical college. On the analogy of the transitio 
 
 without receiving that of Fonteius, as being a gentilis of the Claudii though he had 
 left the Claudian gens, etc.; Dom. 13. 35; 49. 127. 
 
 1 This double act is most clearly stated by Livy iv. 4. 7 : " Nobilitatem istam 
 vestram . . . non genere nee sanguine sed per cooptationem in patres habetis . . . 
 post reges exactos iussu populi"; p. 17, u. 5; cf. Dion. Hal. v. 40. 5: 'H Pov\i) Kal 
 6 Srjfwt ets re rois warpiKlovs airbv (Appius Claudius) Iptypwf/e. This passage 
 shows that Dionysius regards the process as an act of the people and of the senate, 
 though he does not speak of the latter as coaptation. In the case of Appius Claudius 
 Livy, ii. 16. 5, says simply that he was enrolled among the patres ("inter patres 
 lectus "), and in like manner Suetonius, Tib. i, states that the patrician gens Claudia 
 was coopted into the class of patrician gentes. 2 V. 13. 2. 3 Fest. 246. 23. 
 
 4 This measure is called the lex Cassia; Tac. Ann. xi. 25 ; p. 456 below. There 
 can be no doubt that the author was L. Cassius Longinus, a faithful friend of the 
 dictator, who entered upon his tribunate Dec. 10, 45; Drumann-Grobe, Gesch. Roms, 
 ii. 128 f.; iii. 602. 6 Dio Cass, xliii. 47. 3; xlv. 2. 7; Suet. Caes. 41. 
 
 6 The lex Saenia; Tac. Ann. xi. 25. 
 
 7 Augustus, Mon. Ancyr. 8; Dio Cass. Iii. 42. 5. 
 
THE CALATA COMITIA 165 
 
 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. 1 
 
 But whether the Romans were right in supposing patricians 
 to have been created in the early republic has been doubted. 
 Mommsen 2 takes the ground that when the curiae ceased 
 to be exclusively patrician, elevation to the rank became impos- 
 sible, 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. 3 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. 4 
 
 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 6 
 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 
 
 1 Neither the pontifical examination nor the curiate law is noticed by the author- 
 ities, who refer briefly to the two acts. Lange, Rom. Alt. iii. 472, and Mommsen, 
 Rom. Staatsr. ii. iioi, suppose that Caesar as supreme pontiff made the adlectio, 
 although, as Mommsen notices, Octavianus had not yet attained to that office when 
 he attended to the same function. Both writers (cf. Lange, ibid. i. 412) understand 
 the curiate assembly to have been a factor in the process. On these late adlectiones, 
 see also Herzog, Rom. Staatsverf. ii. 38 f., 130; Drumann-Grobe, Gesch. Roms, iii. 
 602; Biidinger, in Denkschr. d. kaiser I. Akad. d. Wiss. Phil.-hist. CI. xxxi (1881). 
 211-73; xxxvi (1888). 81-125. 
 
 2 Rom. Staatsr. iii. 32. 8 Ch. ii above; also p. 166, n. 3 below. 
 * Botsford, in Pol. Sci. Quart, xxii (1907). 689-92. 6 IV. 3. 4. 
 
166 THE ROMAN ASSEMBLIES 
 
 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 member- 
 ship, which was at the disposal of the kings. 1 This view is well 
 adapted to explain the creation of the senate ; but for the period 
 after its establishment Livy 2 adds to the adlectio of the king a 
 cooptatio 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 mon- 
 archy, if not from the beginning, plebeians were admitted to the 
 senate, and through it to the patriciate, by the cooperation of the 
 king and the senate, the people having nothing to do with 
 the matter. 3 But after the overthrow of the monarchy the vote 
 of the people was substituted for the will of the king, coopta- 
 tion by the senate continuing as before. 4 
 
 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. 6 The 
 act took place before the praetor 6 and did not concern the 
 comitia. Probably a preliminary examination by the pontiffs 
 was necessary to adoptions as well as to arrogations. 7 
 
 1 P. 17. 
 
 2 IV. 4. 7; p. 24, n. 5, 200, u. 1; cf. Suet. Tib. 1 : " Patricia gens Claudia ... in 
 patricias cooptata." 
 
 a Mommsen's theory {Rom. Staatsr. iii. 29 and n. 2) that the patriciate was con- 
 ferred through the cooperation of the king and the comitia appears accordingly to rest 
 on a weak foundation. He gives no evidence, but bases his contention on the argument 
 (1) that the community was sovereign, (2) that — the patriciate being in his opinion 
 equivalent to the citizenship and the comitia curiata being a group of gentes — the 
 downfall of the comitia made the reception of gentes impossible. Ground is taken 
 against the theory of popular sovereignty in the following chapter. Against his 
 second point it can be urged that the original comitia were neither patrician nor 
 " gentile " ; hence there is no occasion for speaking of the downfall of such comitia or 
 of its sweeping consequences. * Livy iv. 4. 7; p. 17, n. 5, 164, n. 6. 
 
 6 Mommsen, Rom. Forsch. i. 74 ff. 6 Gell. v. 19. 1-3. 
 
 7 Such an examination was the only means by which the patricians could protect 
 their order from being flooded by plebeians; cf. Mommsen, ibid. i. 77, who notices 
 
THE CALATA COMITIA 167 
 
 Rubino, J., Rom. Verfassung, 241-53 ; Mommsen, Rom. Forschungen, i. 
 123-7, 397-409; Rom. Chronologie, 241 ff. ; Rom. Staatsrecht, ii. 33-41 ; iii. 
 38-40; Lange, L., Rom. Altertumer, i. 131-4, 177 f., 356 f., 362, 398-401, 
 459, 79s ; ii. 518, see also indices s. Adrogatio, Calatores, Detestatio sacrorum ; 
 Transitu) ad plebem, in Kleine Schriften, ii. 1-90; Madvig, J. N., Verf. u. 
 Verw. d. rom. Staates, i. 222-6; Herzog, E., Rom. Staatsverfassung, i. 
 108-11, 1062-4, I0 75 j Mispoulet, J. B., Institutions politiques des Romains, 
 i. 202 f. ; Willems, P., Droit public Rom. 53 f. ; Drumann-Grobe, Gesch. 
 Roms, ii. 187 ff. ; Wissowa, G., Religion und Kultus der Romer, 440 f . ; 
 Hallays, A., Cornices a Rome, 16-9; Mercklein, D. L., Cobptation der Romer, 
 1 1-44 (of the gentes and of the senate) ; Helbig, W., in Comptes rendus de 
 Pacad. des inscr. et belles-lettres, xxi (1893). 350-3 ; Budinger, M., Cicero und 
 die Patriciat, in Denkschr. d. Kaiserl. Akad. d. Wiss. Phil.-hist. CI. xxxi 
 (1881). 211-73; Der Patriciat und das Fehderecht in den letzten Jahrzehnten 
 der rom. Rep., ibid, xxxvi (1888). 81-125 > Baudry, F., Adrogatio, in Darem- 
 berg et Saglio, Diet. 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 . ; 
 Kiibler, Calata comitia, ibid. iii. 1330-4; Ruggiero, E., Diz. ep. ii. 1185; 
 Smith, Diet. i. 26 f. ; Nettleship, Contrib. to Lai. Lexicog. 400. 
 
 that no known instance of this kind of adoption took place before the admission of 
 plebeians to the pontifical college through the Ogulnian law, 300; p. 309 below. 
 
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 us ual tendency of develo pment was 
 toward the a bridgment of popular__powers to the advantage 
 of the nobles or of the T5ngj" r but in some instances may be 
 discovered a growth in the opposite direction. 
 
 Generally the assembly did not have fixed times of meeti ng 
 but convened only when called by theJiing^ac-cMefji, This is 
 known to be true of the Homeric Greeks, 2 of the Slavs, 3 and 
 of the Romans, 4 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 5 — a right which gave the people a valuable political 
 advantage. In like manner the Lacedaemonians met once a 
 month; 6 the Athenians probably once a prytany (tenth of 
 a year) after Cleisthenes, and certainly four times a prytany 
 after Pericles. 7 The Celtic assemblies convened annually or 
 triennially at fixed seasons. 8 Among all these peoples, however, 
 subjects for consideration were presented by none but the king 
 
 1 Schrader, Reallexikon, 924; Spencer, Principles of Sociology, ii. 407. 
 
 2 //. i. 54 ; ii. 50 ; xix. 40 «.; Od. ii. 6 f. 
 
 8 Kovalevsky, Modern Customs and Ancient Laws of Russia, 122, 124. 
 4 We must except the purely sacerdotal meetings of the curiae described in the 
 preceding chapter. 
 
 6 Tac. Germ. 11. 2; cf. Schroder, Deutsche Rechtsgesch. 22 f. 
 
 6 Rhetra of Lycurgus, in Plut. Lye. 6 ; cf. Gilbert, Altspart. Gesch. 131 f. 
 
 7 Arist. Ath. Pol. 43. 4; cf. Gilbert, Const. Antiq. of Sparta and Athens, 285. 
 
 8 This is true of the religious-judicial assemblies of the continental Celts (Caesar, 
 B. G. vi. 13), which may also have exercised political functions, and of the Irish 
 assemblies; Ginnell, Brehon Laws, 44, 51, 54; cf. Schrader, Reallexikon, 924. 
 
 168 
 
THE COMITIA CURIATA 169 
 
 qr_chief, the assgmbly itself being wholly without initiative. 
 Such subjects were as a rule previously discussed in a council 
 of chiefs or nobles. 1 The person who summoned , the assembly 
 naturally made the firjk^peech, 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 
 cooperatio n of the community, he attempted to rouse for it the 
 enthusiasm of his hearers. 2 The discussion might then be con- 
 tinued by the chiefs or any others distinguished for age, military 
 prowess, or eloquence. 3 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 ; 4 and conditions 
 at JljjTflg^jisjwell ^s in Etruria, 5 seem to have bee_n __eg,ually 
 unfavorable to the ordin ary freem an. 
 
 A considerab le variety of busi ness came before the assembly. 
 It might be summoneTrTrrKear the announcementof news of in- 
 te rest to the community , 6 the reading of the calendar for the 
 months 7 the declaration of a policy or opinion by a king or chief, 8 
 or for witnessing acts affecting the interests of the community. 9 
 
 1 The Celtic magistrates disclosed to the people those matters only which they 
 determined to be expedient; and it was unlawful to speak on public affairs outside 
 the assembly ; Caesar, B. G. vi. 20. The German chiefs in council preconsidered 
 every subject to be presented to the assembly; Tac. Germ. II. I; Schroder, ibid. 23. 
 The prominence of the nobles in the Slavic assembly (Kovalevsky, ibid. 123 ff.) 
 would lead to the same conclusion regarding them. For the Homeric age of Greece 
 the meeting of the council previous to the assembly as described by //. ii. 50 ff. is 
 typical, although we could not expect the poet in every case to repeat the procedure 
 with uniform minuteness. The preconsidering power of the Roman senate was of 
 the same nature. 2 //■ ii- 278 ff. 
 
 8 Tac. Germ. II. 4. As a rule the North American Indians enjoy the same free- 
 dom of speech in their councils; Farrand, Basis of American History, 160, ail. 
 
 1 //. ii. 211 ff.; xii. 212 f. Calchas the seer, a man of the people, gained the pro- 
 tection of Achilles before daring to speak against Agamemnon; //. i. 76 ff. 
 
 6 On the control of the Etruscan assembly by the nobles, see Miiller-Deecke, 
 Etrusker, i. 337; Hirt, Indogermanen, i. 55. 
 
 « Od. ii. 28 ff. 7 P. 154 t 
 
 8 Od. ii. 35 ff.; cf. the public complaint made by a Slavic chief of an injury he 
 had received; Kovalevsky, ibid. 131. 
 
 8 Such as the reception of the youth into the warrior class among the Germans; 
 Tac. Germ. 13. 2; for the witnessing assembly at Rome, see p. 155 f. 
 
170 THE ROMAN ASSEMBLIES 
 
 More important were jud icial cas es. 1 questions„ofjwaxand_rjieace, 2 
 and elections. 3 
 
 "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, 4 the Ger- 
 mans by clashing their weapons, 6 and the Celts by both ; 6 either 
 demonstration aimed to express, not the will of the majority, 7 
 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. 8 The Achaeans in assembly approved the petition of 
 
 1 Schrader, Reallexikon, 659, 662, 688. For the Celts; Caesar, B. G. vi. 13; cf. 
 i. 4 (trial of Orgetorix). For the Germans; Tac. Germ. 12. 1 f. For the Slavs; 
 Kovalevsky, Mod. Cust. andAnc. Laws, 126. The famous trial scene in the Homeric 
 assembly; 77. xviii. 497 ff. For the Macedonians; Curt. vi. 8. 25. It is probably 
 true of Vedic India; Schrader, ibid. 688. 
 
 2 For the Germans; Brunner, Deutsche Rcchtsgesch. i. 129. For the Slavs; Kova- 
 levsky, ibid. 128, 130, 141 f. For the Celts; Polyb. iii. 44. 5 f.; Caes. B. G. v. 27, 
 36; Livy xxi. 20. 3; Tac. Hist. iv. 67. The Helvetian assembly probably decided 
 the question of migration; Caesar, B. G. i. 2. As to the Greeks, Agamemnon pro- 
 posed to the assembly to quit the war and return home, the people gladly accepted; 
 II. ii. 86 ff. A proposal of peace came from the Trojans to the Achaean assembly; 
 the people rejected it on the advice of Diomede, and Agamemnon concurred in 
 their opinion; //. vii. 382 ff. 
 
 8 The German mode of electing a king or war-leader is well known; cf. Brunner, 
 ibid. i. 129. The assembly also elected the chiefs of the pagi (Gaue) and of the 
 villages ; Tac. Germ. 12. 3. The Celts who were not ruled by hereditary kings 
 elected their chiefs annually (Caesar, B. G. i. 16) or for a migration; ibid. 3. The 
 Irish kings were generally elected from particular families; Ginnell, Brehon Laws, 
 66. The Slavs elected their king and other officials; Kovalevsky, ibid. 124 f., 127, 
 129, 138 f. In Homeric Greece the kingship was generally hereditary, but the peo- 
 ple might elect a war-leader to take command by the side of the king; Od. xiv. 237; 
 cf. xiii. 266. There are traces of elective kingship, lasting at least a few generations, 
 in the great majority of early European states; Jenks, History of Politics, 87; cf. 35 f. 
 
 4 77. i. 22 ff. For the Lacedaemonians, see Thuc. i. 87. 
 
 6 Tac. Germ. II. 5; Hist. v. 17. Sometimes the Germans mingled clamor with 
 the clash of weapons; Amm. Marc. xvi. 12. 13. 
 
 6 Caesar, B. G. vii. 21. 
 
 ' Majority rule was unknown to primitive times. The members of the council 
 talked together till they came to a unanimous agreement. If the Homeric Greeks 
 in assembly failed to agree, each party went its own way; Od. iii. 150 ff. Among 
 the Slavs the majority forced a unanimous vote by coercing the minority ; Kovalevsky, 
 ibid. 122 ff. For the Germans; Seeck, Gesch.d. Unterg. d. antik. Welt, i. 213. 
 
 8 For the Homeric Greek assembly, see Hermann-Thumser, Griech Staatsalt. 67 f. 
 
THE COMITIA CURIATA 171 
 
 Chryses, a suppliant priest; nevertheless King Agamemnon 
 rejected it. 1 After the people had divided the spoils of war, 
 Agamemnon seized the prize they had given another. 2 The 
 Trojans were ready to surrender Helen for the sake of peace; 
 but Priam, to gratify his son, refused, and the war went on. 3 In 
 his relations with individuals the king often acted unjustly and 
 tyrannically. Even in affairs which concerned the entire com- 
 munity he might take large liberty. Without consulting the as- 
 sembly 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 f amilies, 4 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 qf__the magistrat.e_to_con£lude_peace_with 
 or without di scussion in th ecouncil or seaaiejg as recogniz ed by 
 the states otTtaly as late as the Second Samnite war. 5 The king 
 might even <wiarg_fl« "ff^f jivewaro n his own responsibility, 
 if without consulting the people he could feel sure of their sup- 
 port. 6 Enterprises requiring their cooperation he usually sub- 
 mitted to them to win their approval, as he had no means of 
 coercing the entire community. His independence' of the as- 
 sembly increased with the growth of heredity. The idea of 
 sovereignty, strictly speaking, was unknown to primitive times ; 
 
 1 //. i. 11 ff. 2 Ibid. i. 135 ff., 320 ff. 
 
 8 Ibid. vii. 345 ff. 4 In Italy, Livy i. 45. 2; 49. 8. 
 
 6 This right is proved by the fact that the death of a king freed the neighboring 
 states from their treaty obligations to his community, eg., the Fidenates after the 
 death of Romulus; Dion. Hal. iii. 23. 1; the Latins after the death of Tullus; Dion. 
 Hal. iii. 37. 3; various neighbors after the expulsion of the last Tarquin; Dion. Hal. 
 viii. 64. 2; cf. Rubino, Rdm. Verf. 175, n. 2. At the time of the Candine disaster 
 (321 B.C.) the Samnite leader assumed that the Roman consuls were competent in 
 their own right to conclude a definitive peace ; Livy ix. 2 ff . 
 
 6 Among the Quadi the right to declare war belonged to the council, not to the 
 assembly; Amm. Marc. xxx. 6. 2. With the Saxons the will of the nobles was equiva- 
 lent to the will of the people; Beowulf, cited by Seeck, ibid. i. 217. 7, see also his 
 notes on p. 531. The Sabine senators (senes) are represented as responsible for the 
 continual wars of their people with the Romans; Livy ii. 18. II. In general the 
 leading men and the senate were able by their own oath to bind the community; 
 Caes. B.G. iv. 1 1 ; cf. 13. A chief might work his will by packing an assembly with 
 men on whom he could rely; Tac. Hist. iv. 14. The Grand Duke of Russia, relying 
 on his comitatus, sometimes went to war without consulting the people; Kovalevsky, 
 Mod. Cust. and Anc. Laws, 142. 
 
1 72 THE ROMAN ASSEMBLIES 
 
 yet so far as people thought of political power, they assigned it 
 to the king and council. 1 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 assem- 
 bly or the prohibition of carrying arms to the meeting was 
 looked upon as intolerable tyranny. 2 For the disturbance of an 
 Irish assembly the penalty was death. 3 pu blic op inion, was a 
 check on royalty, 4 and in extreme cases the peoplerebelled and 
 ItiUed theirlcing. 6 
 
 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 ob- 
 structed this power was accursed ; 6 if, too, in anything the peo- 
 ple gave a wrong decision, the kings and council could set it 
 right. 7 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, 8 in a form which 
 took little account of the commons. 9 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. 10 In Russia Tartar domination, convert- 
 ing the legitimate princes into tyrants, effected the downfall of 
 
 1 Leist, Graeco-ital. Rechtsgesch. 130, 136 f. Under favorable conditions the as- 
 sembly acquired sovereignty, as at Athens and for a time in Russia; Kovalevsky, 
 Russian Political Institutions, 17. Schrader, Reallexikon, 923 f., following Mommsen 
 (cf. also Post, Grundlagen des Reckls, 130; Cramer, Verfassungsgesch. d. Germ. a. 
 Kelt. 61 et pass.), is altogether wrong in supposing the assembly to have been 
 originally sovereign. 
 
 2 Tac. Hist. iv. 64. Charlemagne suppressed the assemblies of the Saxons except 
 for receiving communications from his missi and for the administration of justice; 
 Cap. de Part. Sax. i. 70. 34 (Boretius 26. p. 68) . 
 
 8 Ginnell, Brehon Laws, 42. 
 
 4 Od. iii. 214 f.; xiv. 239; xvi. 75, 95 f., 114; xix. 527. 
 
 6 In Homeric Greece; //. i. 231 f.; iii. 57. The Herulians killed their king merely 
 because they were weary of royal government ; Procopius, Bel. Gotk. ii. 14, p. 422 A. 
 Sometimes the Celtic commons massacred both magistrates and council, and took 
 affairs into their own hands; Polyb. ii. 21; Caesar, B. G. iii. 17. 6 Hdt. vi. 56. 
 
 7 Rhetra of Polydorus and Theopompus, in Plut. Lye. 6. This power is essentially 
 the same as the auctoritas of the Roman patres. 
 
 8 Fustel de Coulanges, Monarchic Franque, 598 ff. 
 
 9 Ibid. 638 ff. 
 
 10 Hodgkin, Italy and her Invaders, iii. 239 ff. 
 
THE COMITIA CURIATA 173 
 
 the assemblies. 1 The building up of large states, too, neces- 
 sarily degrades or destroys popular gatherings. 2 
 
 The he ritage oftheRoman assembly from the earlier triha l 
 time must have been slight as well as vague — a heritage dimin- 
 ished further by the gr owin^ powe r of the king and no bles. 
 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 con- 
 currence 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. 3 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 impe- 
 rium, whereas the people enjoyed but a limited degree of 
 freedom, right, and power. 4 Their condition was not liberty 
 but a preparation for it. 5 Their assembly, like that of other 
 early Europeans^ a d up^Jo^wer-aLinitiatiye ; it met only when 
 s ummoned by_ the king, and could consider those matters 
 only which the kingTjrought before it. Its object must have 
 been chiefly to rec eive inform ation and to witness^ acts of n ubfe- 
 imrjortance. In no case did ttie Icfng call upon the assembly 
 foe-advice ; co unse l belonged exclusively to the wise elders, who 
 composed the senate ; 6 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. 7 In other than judicial 
 
 1 Kovalevsky, Mod. Cast, and Anc. Laws, 148. 
 
 2 The rest of this chapter is largely a reproduction of Botsford, Lex Curiata, in 
 Pol. Set. Quart, xxiii (1908). 498-517. 
 
 s P. 2, 176. * Cic. Rep. 28. 50; cf. 23. 43, 
 
 6 Livy i. 46. 3; 60. 3; ii. I. 6 f.; 15. 3. 
 
 6 Cic. Plane. 4. 9 : " Non est consilium in vulgo." 
 
 7 Cf. Livy i. 34. 12. 
 
174 THE ROMAN ASSEMBLIES 
 
 assemblies the privilege of speaking must have been sparingly- 
 granted. 1 5mally_jio_elective or legislative act of the curiae 
 was valid without the authorization of the senate (patrum 
 auctoritasj. 2 
 
 With reference to the specific rights of the assembly, Dio- 
 nysius 3 states that Romulus granted the commons three pre- 
 rogatives, (i) to elect magistrates, (2) to ratify laws, (3) to decide 
 concerning war, whenever the king should refer the matter to 
 them. Livy's 4 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 peo- 
 ple, but a_£OJice6sion on the part of the sovereign. 6 Still more 
 important, these generalizations are in great part invalidated, 
 as Rubino 6 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 proceed- 
 ings. 7 It is significant, too, that the formula of treaty makes the 
 king the only actor, taking no account of the people. 8 Usually 
 peace continued merely through the lifetime of the king who 
 contracted it, 9 but a truce for a definite period was binding to 
 the end, even after his death. 10 Under the republic to the time 
 of the decemvirs the treaty-making power resided in the consuls 
 
 1 P- 145 • 2 P- 235. 
 
 8 II. 14. 3 : T$ Si StiimtikQ 7rXi}0« rpla ToCra iirirp&j/ev • apxaipev to. fin' re nal 
 i>6povs liriicvpovv xal wepl To\4fu>v StayiyvdnrKfiv, trav o f3a<rt\eis i<f>t\. 
 
 4 I. 49- 7- 
 
 6 This interpretation, offered by Rubino, is accepted by Lange, Rom. Alt. ii. 599. 
 
 6 Rom. Verf. 257 ff. 
 
 7 The treaty with the Sabines rested on the oaths of the two kings alone; Livy i. 
 13. 4; Dion. Hal. ii. 46. 3; Plut. Rom. 19. Romulus of his own authority made a 
 hundred years' truce with Veii; Dion. Hal. ii. 55. 5 f. With the advice of the senate 
 he solicited alliances with the neighboring states; Livy i. 9. 2. Numa personally 
 contracted alliances with the surrounding states; Livy i. 19. 4. Tullus Hostilius 
 made a treaty with the Sabines, the indemnity being fixed by a senatus consultum; 
 Dion. Hal. iii. 32. 6. For other citations, see Rubino, ibid. 264, n. 3. 
 
 8 Livy i. 24. 4 ff. 9 P. 171, n . 5 above. 
 10 Livy i. 30. 7. 
 
THE COMITIA CURIATA 175 
 
 and senate. 1 Ordinarily either a senatus consultum empowered 
 the magistrates to use their discretion 2 or sanctioned the agree- 
 ment when made. 8 More rarely the senate treated directly with 
 ambassadors from the enemy. 4 The clamor of the plebeians 
 sometimes prevailed upon the senate to negotiate for peace; 6 
 and at other times it was merely by accident that the people 
 heard of the conclusion of a treaty. 6 After the decemviral 
 legislation the plebeian assembly of tribes slowly acquired the 
 right of ratification ; 7 in fact it was not till the Second Samnite 
 war that their vote came to be essential. 8 Among the archives 
 devoted to treaties and alliances, accordingly, senatus consulta 
 and plebiscites alone are mentioned. 9 The very fact that in the 
 later republic the ratification of treaties belonged exclusively to 
 the tribal assembly 10 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. 11 
 
 As regards the right of the people to declare war a distinction 
 must be drawn between defensive wars, which, admitting neither 
 choice nor delay, 12 could not be referred to their decision, and 
 aggressive wars, which were in the option of the state to under- 
 take 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 hot complied with, the ambas- 
 
 1 Cf. Livy ii. 22. 5. In 495 the consul, in pursuance of a senatus consultum, made 
 peace with the Volscians at their request; Livy ii. 25. 6. In the same form Cassius 
 the consul in 493 made peace with the Latins (Livy ii. 33. 4; Dion. Hal. vi. 18-21, 
 especially 21. 2) and in 486 with the Hernicans; Dion. Hal. viii. 68. 4; 69. 2; Livy 
 ii. 41; cf. Rubino, ibid. 266 f. 2 Cf. Dion. Hal. ix. 17. 2; 59. 4. 
 
 8 Livy iii. I. 8. * Dion. Hal. ix. 36. 2 f.; a. 21. 8. 
 
 6 Livy ii. 39. 9 f. 6 Cf. Dion. Hal. ix. 17. 2, 4. 
 
 7 P. 35 1 ; cf. Rubino, Rom. Verf. 269 ff. 
 
 8 On the epoch-making rejection of the Caudine treaty of 321, see p. 171, n. 5. 
 376. 9 Suet. Vesp. 8; Rubino, ibid. 261. 
 
 10 Cf. Rubino, ibid. 260. u Ibid. 263. 
 
 12 Cf. i. 14. 6; 36. 1. Too much stress should not be laid on this distinction, how- 
 ever, as the Romans always regarded their enemy as the aggressor, and assumed that 
 every war was undertaken for the redress of grievances. 
 
176 THE ROMAN ASSEMBLIES 
 
 sador, 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 substan- 
 tially 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. 1 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 pop- 
 ulus Romanus declare and make war on the peoples of the 
 ancient Latins." 2 In this connection, as in all formulae apply- 
 ing 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. 3 
 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,* 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 
 
 1 Livy i. 32. 2 Ibid. i. 32. 
 
 " P. 1 f., 173. The formula is extremely ancient in origin, but it must have under- 
 gone modifications in time, as is indicated by the word prisci applied to the Latins. 
 Possibly the reference to the populus should be similarly explained. 
 
 4 P. 174. 
 
THE COMITIA CURIATA 177 
 
 and war are represented as depending upon the character and 
 inclinations of the king 1 further establishes the real view of 
 the Roman historians. In a succeeding chapter 2 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, 3 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. 4 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 — Oefuare; — 
 and even his thoughts from the gods. 5 The mythical or semi- 
 mythical legislators of Greece, as Minos, Lycurgus, and Zaleu- 
 cus, were given their laws by revelation. In like manner 
 Numa, who may be considered a typical legislator for primitive 
 Rome, 6 received his sacred laws and institutions from the 
 goddess Egeria ; 7 and Romulus, the first great law-giver, 8 was a 
 demi-god, who passed without dying to the dwelling-place of the 
 immortals. 9 Roughly distinguished, Romulus was the author of 
 the secular law, Numa of the sacred. 10 In general the Romans 
 
 1 Cf. Livy i. 22; 30. 3; 35. 7; 38. 4. 2 P. 230. 8 P. 171. 
 
 4 For the Indo- Europeans, see Schrader, Reallexikon, 655 ff.; Maine, Ancient 
 Law, xv f., 2 ff.; Hirt, Indogermanen, ii. 522 ff. There may have been occasional 
 legislation by the assembly in its earliest history; cf. the prohibition of the importa- 
 tion of wine by the Suevi (Caesar, B. G. iv. 2), which may have been an act of the 
 kind. 6 II. i. 238; ix. 98; Od. vi. 12. 
 
 6 Cic. Rep. v. 2. 3; Livy i. 19. 1. 7 Livy i. 19. 5; cf. 42. 4; Tac. Ann. iii. 26. 
 
 8 Livy i. 8. 1; Verg. Aen. i. 292 f. 9 Cic. Rep. ii. 10. 17; Livy i. 16. 
 
 10 On the legislation of the kings, see Voigt, in Abhdl. d. sacks. Gesellsch. d. Wiss. 
 vii (1879). 555 ff. 
 
 N 
 
178 THE ROMAN ASSEMBLIES 
 
 of later time looked back to their kings, the founders of then- 
 state, 1 as the authors not only of their fundamental laws and 
 institutions but even of their moral principles. 2 Doubtless the 
 Roman view of the ancient king is an image of the republican 
 dictatorship, of the extraordinary magistratus rei publicae con- 
 stituendae, of the consul freed from his various limitations ; 3 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, 4 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. 5 After 
 this stage was reached, the transaction between king and people 
 had the following form : " I ask you, quirites, whether you will con- 
 sent 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." 6 The magistrate brought his formulated 
 request before the people (legem ferre), who accepted it (legem 
 accipere) ; the question (rogatio) was directed not to the assem- 
 bly as a whole but to the component citizens, who individually 
 
 1 Livy ii. 1. I. 
 
 2 Cf. Cic. Rep. i. 2. 2. To the end of the republic resort was had in national crises 
 to the numen deorum as the ultimate source of law; Cic. Phil. xi. 12. 28. 
 
 8 Mommsen, Rom. Staatsr. ii. 11. 
 
 4 Mommsen, ibid. iii. 313; cf. Jenks, History of Politics, 89 f. 
 
 5 In the preceding chapter (p. 153, 157) an attempt is made to determine under 
 what influence the curiate organization and the systematic vote were introduced into 
 the assembly. 
 
 6 Cf. Gell. v. 19. 9 : " Velitis, iubeatis, uti. . . . Haec ita, uti dixi, ita vos, quirites, 
 rogo." This reference to an arrogation is quoted here merely for the sake of the 
 formula. For further citations, see Mommsen, ibid. iii. 312, n. 2. 
 
THE COMITIA CURIATA 179 
 
 replied ut rogas, "yes," or antiquo, "no." 1 By this procedure 
 the citizens bound themselves to the acceptance of the proposi- 
 tion on an oral promise, which was the strongest form of obliga- 
 tion 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 obliga- 
 tion which the citizens took upon themselves at the request of 
 the magistrate. 2 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;" 3 others from judh, an extension of 
 the root ju, "to bind." 4 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, 5 in which alone the obligations are recip- 
 rocal, to the instruction imposed by a superior magistrate upon an 
 inferior, 6 to the auspicium which the magistrate formulates and 
 the god accepts, 7 to the ordinance which the subject, without 
 being consulted, receives willingly or unwillingly from the ruler 
 
 1 For ut rogas, see Livy vi. 38. 5 ; x. 8. 1 2. Antiquo for " no " may be inferred 
 from the use of antiquare to designate the rejection of a proposal; e.g. Livy iv. 58. 
 14; cf. Herzog, Rom. Staatsverf. i. 1108, n. 4; p. 467 below. 
 
 2 Lex may be related to legare, ligare, " to bind " ; Brugmann, Gundriss, I. i. 
 134; Corssen, Aussprache, i. 444; Herzog, Rom. Staatsverf. i. 112, n. I; Lange, 
 Rom. Alt. I. 315 ("bindende Vorschrift "). Mommsen, Rom. Staatsr. iii. 308, n. 4, 
 quotes J. Schmidt for the fundamental meaning of the root leg, " to place in order," 
 connecting it with English " law " (cf. deo-pAs, Gesetz) ; cf. Kretschmer, Einleitung 
 in die Geschichte der griech. Sprache, 165; Schrader, Reallexikon, 657; Christ, in 
 Sitzb d. bayer. Akad d. Wiss. 1906. 215. 
 
 8 Cf. Corssen, Aussprache, i. 684. 
 
 4 Cf. Vanicek, Etym. Wbrtcrb. 227; Herzog, ibid. i. 116, n. 3 (Rechtsetzen). 
 Schrader, Reallexikon, 657, connecting ius with Avest. yaos, "pure," develops its 
 meaning through (1) oath of purification in legal procedure, (2) legal procedure, 
 finally (3) human law, right, as distinguished from fas; cf. Christ, in Sitzb. d. bayer. 
 Akad. d. Wiss. 1906. 2iz (ius = Skt. yos). On the meaning, see further 
 Nettleship, Contributions to Latin Lexicography, 497; Clark, Practical Juris- 
 prudence, 16-20. 
 
 For the leges censoriae, see Mommsen, Rom. Staatsr. ii. 430. 
 
 6 Livy i. 26. 7 : " Hac lege duumviri creati." 
 
 7 On the legum dictio, see Serv. in Aen. iii. 89. 
 
i8o THE ROMAN ASSEMBLIES 
 
 (lex data), 1 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. 2 
 A lex of the kind was not necessarily general, 3 but applied as 
 readily to an individual citizen 4 as to the entire body, to a dec- 
 laration of war, 5 or the banishment of a citizen, 6 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. 7 
 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, 8 
 and in the latter sense the word is used in this volume. 
 
 The acceptance of a proposition by the citizens obligated 
 themselves 9 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 revolu- 
 tion. Although the republican magistrates possessed remarkably 
 
 1 Examples of leges datae are the ordinances of the kings or of extraordinary con- 
 stitutive magistracies, as the triumviri rei publicae constituendae, municipal laws and 
 provincial regulations established by Rome; cf. Mommsen, Rom. Staatsr. iii. 311 
 and notes. 
 
 2 Law of the XII Tables, cited by Gaius, in Dig. xlvii. 22. 4 : " Dum ne quid ex 
 publica lege corrumpant"; Cato, Orig. iv. 13: "Duo exules lege publica (con- 
 demnati) et execrati"; Gaius ii. 104; CIL. vi. 9404, 10235; c ^ Mommsen, Rom. 
 Staatsr. iii. 310, n. 3; Lange, Rom. Alt. ii. 598 f. 
 
 3 Ateius Capito's definition in Gell. x. 20. 2 (" Lex est generale iussum populi aut 
 plebis rogante magistratu ") fails to cover all cases, as Gellius immediately shows. 
 
 * E.g. the granting of the imperium to Pompey or the recall of Cicero from exile; 
 Gell. x. 20. 3. 
 
 6 Livy iv. 60. 9; cf. 58. 14. 6 Cato, Orig. iv. 13; n. 2 above. 
 
 ' Lange, Rom. Alt. ii. 598 f. ; Herzog, Rom. Staatsverf. i. ill ff. The election 
 of a king was a iussus populi, which was equivalent to a lex; Livy i. 22. 1. For an 
 election by the centuriate assembly, see Livy vii. 17. 12. The lex curiata de imperio 
 was regarded strictly as an election; p. 184 ff. On judicial decisions see Lange, 
 ibid. i. 629 f.; ii. 571. 
 
 8 Cic. Div. ii. 35. 74 : " TJt comitiorum vel in iudiciis populi vel in iure legum vel 
 in creandis magistratibus " ; Leg. iii. 3. 10; 15. 33. Iudicia populi practically disap- 
 peared, leaving comitia legum and comitia magistratuum; idem, Sesl. 51. 109; cf. 
 Mommsen, Rom. Staatsr. iii. 326, a. 1. 
 
 9 The usual expression for the validity of a law is lege populus tenetur; cf. Cic. 
 Dom, 16. 41; Phil. v. 4. 10; Gell. xv. 27. 4; Gaius i. 3. For further citations, see 
 Rubino, Rom. Vtrf. 356, n. I; Mommsen, R'dm. Staatsr. iii. 159, u . 1, 309,11. 3. 
 
THE COMITIA CURIATA 181 
 
 great power, as temporary functionaries they belonged to the 
 people, along with whom they were bound by the laws. 1 
 
 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 2 on the supposition that they 
 were passed by the assembly under royal presidency, 3 was little 
 more than the ius pontificum — the customary religious law — 
 with whose making the curiae had nothing to do. 4 If the king 
 wished to admit new citizens, 5 erect public works, levy forced 
 labor on the citizens, 6 reform the military organization, 7 punish a 
 man with chains or death, 8 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 cooperation in national enterprises, or more 
 rarely in a legal innovation, 9 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 
 
 1 Cf. Livy. ix. 34. 8-10. i Dig. i. 2. 2. 2. 
 
 8 Ascribed to Ancus Marcius by Livy (i. 32. 2) and Dionysius (Hi. 36. 2 ff.), to 
 Romulus and his successors by Pomponius (ibid.), but destroyed in the Gallic con- 
 flagration (Livy vi. 1. 1). 
 
 * Lange, Rom. Alt. 1. 314 f.; Voigt, in Abhdl. d. sacks. Gesellesch. d. Wiss. vii 
 (1879). 559; Schrader, Reallexikon, 657 f. 
 
 6 The sources uniformly represent the kings as acting alone in the admission of 
 individuals and of entire communities to citizenship. The view of Mommsen, 
 Rom. Staatsr. Hi. 29, that the assembly cooperated rests upon his theory of an 
 original popular sovereignty and of an original patrician state, neither of which has 
 any basis in fact. 
 
 6 Cic. Rep. v. 2. 3; Livy 1. 38. 7; 44. 3; 56. 1 f. ' Ibid. i. 43. 
 
 8 Ibid. i. 44. I ; cf. especially the summary condemnation and execution of Met- 
 tius; ibid. i. 28. Livy's complaint (i. 49. 4) against Tarquin the Proud is that he 
 decided capital cases without assessors, not that he allowed no appeal. 
 
 9 Lange's view {Rom. Alt. i. 314) that under the kings there was no legislation, 
 except the passing of the lex de imperio, cannot be proved and seems unlikely. Mourn- 
 sen's hypothesis {Rom. Staatsr. iii. 327) that under the kings the comitia were 
 exclusively legislative, elective and judicial functions being a republican innovation, 
 is disproved by the facts presented in this chapter. There is no reason for supposing 
 that the republic brought to the comitia any absolutely new functions. 
 
1 82 THE ROMAN ASSEMBLIES 
 
 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 con- 
 sideration here. Among the early Indo-Europeans the settle- 
 ment 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. 1 
 The religious ideas attaching to crime and punishment 2 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. 3 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, 4 but according to Livy 5 Numa's appointment was 
 made by the senate alone; and Servius ruled long and intro- 
 duced his great reforms before his election. 6 Tarquin the 
 Proud to the end of his reign was neither appointed by the 
 senate nor chosen by the people. 7 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 suc- 
 cessor to the monarch — were filled by appointment, we might 
 
 1 Schrader, Reallexikon, 662. 2 Greenidge, Leg. Proced. 298 f. 
 
 8 Cf. Livy i. 26. 8 ff.; Cic. Mil. 3. 7; Greenidge, Leg. Proced. 8, 305 ff. 
 4 Cic. Rep. ii. 2. 4; 7. 13; Livy i. 13. 4. 
 
 6 I. 17. 11. Cicero {Rep. ii. 13. 25), however, supposes he was elected by the 
 people. 
 
 ' Cic. Rep. ii. 21. 37; Livy i. 41-6; Dion. Hal. iv. 8. 7 Livy i. 49. 3. 
 
THE COMITIA CURIATA 183 
 
 infer that the kingship was not elective. 1 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 primi- 
 tive European peoples, may be added to the authority of 
 our sources 2 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 sup- 
 pose, was in the beginning legal without further action on the 
 part of the people. But the accession of a king was a momen- 
 tous 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 prede- 
 cessor or by the interrex, and after the acclamation in contio 
 if such action took place, convoked the curiae on the first con- 
 venient comitial day of his reign, 8 having held favorable auspices 
 in the morning, and proposed to them a rogation* 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. 5 The informal acclamation, if it was the custom, 
 
 1 Cf. Mommsen, Rom. Staatsr. ii. 6 f. 
 
 2 Cf. Cic. A'tp. ii. 13. 25; 17.31; 18.33; 20-355 tivy I lj. 10; 32. 1; 35. 1, 
 6; 46. 1 ; Jordan, Konige im alt. Ital. 25 ff. 8 Cf. Livy xxii. 35. 4. 
 
 4 Cic. Rep. ii. 13. 25 (Numa); 17. 31 (Tullus Hostilius); 18. 33 (Ancus Mar- 
 cius) ; 20. 35 (Tarquinius Priscus). 
 
 6 The formula for the curiate law is unknown. Lange, Rom. Alt. i. 307 ff. 407 f., 
 459, 461 f., supposes that it not only pledged the people to obedience, but also 
 defined the imperium and bound the king not to exceed the limitations imposed; 
 that every constitutional modification of the imperium required a corresponding 
 modification of the curiate act. Herzog, Rom. Staatsvcrf. i. 1 1 1 f., further assumes 
 that the law contained the formula of treaty on which in his opinion the state rested, 
 
i84\ THE ROMAN ASSEMBLIES 
 
 must have disappeared in time, and the passing of the curiate 
 law was looked upon as the election proper. 1 
 
 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. 2 
 
 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 inter- 
 pretation of the peculiarity. According to Cicero it was pro- 
 
 and that before the age of written documents this treaty was handed down orally 
 through the repetition of the law. Lange's theory, which runs throughout his great 
 work, seems to rest on the single statement of Tacitus, Ann. xi. 22 : " Quaestores 
 regibus etiam turn imperantibus instituti sunt, quod lex curiata ostendit a L. Bruto 
 repetita." But this statement proves only that the quaestors were mentioned in the 
 curiate law, and this circumstance is otherwise explained below, p. 189. That the 
 law defined and limited the imperium is unlikely (i) because in early time, when 
 the act had a real meaning, precise definitions were unknown; (2) because there is 
 no evidence for it. 
 
 P. Servilius Rullus stated, evidently in his rogation, that the object of the curiate act 
 to be passed for the decemviri provided for in his bill was "ut ii decemviratum 
 habeant, quos plebs designaverit " (Cic. Leg. Agr. ii. 10. 26) — a formula probably 
 copied from earlier laws. From this statement and from evidence furnished below 
 (p. 185 f.) it is practically certain that the formula for the curiate act ran somewhat 
 like that for an election. 
 
 1 It is true that Cicero (p. 183, n. 2) supposes the king to have been .elected by 
 the curiate assembly, and the imperium to have been afterward sanctioned by the 
 same assembly. This double vote of the curiae seems as improbable as it was un- 
 necessary. We may reasonably consider the alleged first vote a mistaken inference 
 from the later election of higher magistrates by the centuries. The assumption of 
 an acclamation as the first stage in the process accords far better with primitive 
 conditions. 
 
 2 The people claimed that the right to elect magistrates had come down to them 
 from Servius Tullius; Appian, Lib. 112 (probably from Polyb.); Livy i. 60. 4; 
 p. 3 6 °- 
 
THE COMITIA CURIATA 185 
 
 vided 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 con- 
 ferred an office on any person. In the case of the censors this 
 second vote was cast in the comitia centuriata ; all other elec- 
 tive magistrates received it in the curiate assembly. 1 Rubino 2 
 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, 3 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.* 
 
 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 origi- 
 nal 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. 5 That this interpretation is not a mere 
 invention of Cicero is proved by a statement of Messala 6 that 
 
 1 Cic. Leg. Agr. ii. n. 26: "Maiores de singulis magistratibus bis vos sententiam 
 ferre voluerunt. Nam cum centuriata lex censoribus ferebatur, cum curiata ceteris 
 patriciis magistratibus, turn iterum de eisdem iudicabatur, ut esset reprebendendi 
 potestas, si populum beneficii sui paeniteret"; cf. 10. 26; Rep. ii. 13. 25. 
 
 2 Rom. Verf. 361 f., 379 f. For a summary of the various modern views, see 
 Nissen, Beifr. zum rom. Staatsr. 42-6. 8 P. 435. 
 
 1 It is not probable that an official could pass the law for a colleague, the inten- 
 tion being that each higher magistrate should personally propose and carry it for 
 himself; cf. Mommsen, Rom. Staatsr. i. 610, u. 2. 
 
 5 Leg. Agr. ii. 10. 26 : " Hoc inauditum et plane novum, ut ei curiata lege ma- 
 gistrate detur, cui nullis comitiis ante sit datus." 
 
 6 In Gell. xiii. 15. 4 : " Magistratus . . . iustus curiata datur lege." 
 
186 THE ROMAN ASSEMBLIES 
 
 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 ad- 
 signandis 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." 1 In other words, the per- 
 son 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." 2 Closely related to this 
 meaning is that of " perfect formality," as in making a bequest 3 
 or in creating a sacerdos i or a magistrate. 5 In this sense op- 
 timo iure is interchangeable with optima lege. Developed in 
 another direction, either phrase readily gives the idea of com- 
 pleteness or perfection of title, not only to property, 6 but also 
 to office. 7 One who holds a perfect title to a property, or has 
 
 1 In Cic. Leg. Agr. ii. II. 29: "Turn ii decemviri, inquit, eodem iuresint, quo qui 
 optuma lege. " In keeping with this statement is the object of the curiate act as 
 given by the Servilian rogation (p. 183, n. 5). 
 
 2 Plaut. Most. 713; Cic. Off. i. 31. m; 42. 151; Fin. iv. 12. 31; Sep. iii. 17. 27; 
 Cat. i. 9. 21; Sest. 43. 94; Plane. 36. 88; Marc. I. 4; Fam. iii. 8. 6; Att. xv. 3. 2. 
 
 8 Gaius ii. 197 : " Proinde utile sit legatum atque si optimo iure relictum esset; 
 
 optimum ius est per damnationem legati." It is clear that this statement refers 
 
 merely to the form. 
 
 4 Fabius Pictor, in Gell. i. 12. 14 : " Uti quae optima lege fuit, ita te, Amata, capio." 
 6 Cic. Phil. xi. 12. 30 : " Senatui placere C. Cassium pro consule provinciam opti- 
 
 nere, ut qui optimo iure earn provinciam optinuerit " (with all the formality usual in 
 
 cases of appointment to that province); v. 16. 44: "Sit (Caesar) pro praetore eo 
 
 iure quo qui optimo.'' 
 
 6 Cic. Har. Resp. 7. 14 (reference is to the complete and perfect title with which 
 Cicero holds his dwelling) ; Phil. ix. 7. 1 7 (a burial place granted by the state to a 
 family with a perfect title); Lex Agr. {CIL. 200) 27: "Is ager locus <frmneis priva- 
 tus ita, utei quoi optuma lege privatus est, esto." 
 
 7 Lex Col. Gen. ( CIL. ii. Supplb. 5439) 67 : " Quicumque pontif(ices) quique 
 augures c(oloniae) G(enetivae) I(uliae) post h(anc) l(egem) datam in conlegium 
 pontific(um) augurumq(ue) in demortui damnative loco h(ac) lege lectus cooptatusve 
 erit, is pontif(ex) augurq(ue) in c(olonia) Iul(ia) in conlegium pontifex augurq(ue) 
 esto, ita uti qui optuma lege in quaque colon(ia) pontif(ices) auguresq(ue) sunt 
 erunt"; ch. 66: "Ei pontifices c(oloniae) G(enetivae) I(uliae) sunto, ... ita uti 
 qui optima lege optumo iure in quaque colon(ia) pontif(ices) augures sunt erunt." 
 
THE COMITIA CURIATA 187 
 
 been granted a civil status 1 or an office 2 in a perfectly legal 
 way, necessarily enjoys all the immunities, honors, and powers 
 inherent in such absolute condition. To indicate that due legal- 
 ity 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 ap- 
 pointment or election. These words continued to be used, for 
 example, in the creation of the dictator as long as his power re- 
 mained absolute, but after it became subject to appeal, they were 
 dropped. 3 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 con- 
 sul ; in the creation of a promagistrate or the assignment of a 
 province it might be the senate.* Laws must often have con- 
 tained provisions that the magistrates created under them should 
 be ut qui optima lege. 5 The Servilian bill most probably in- 
 cluded an article of the kind for the decemviri agris adsignan- 
 dis 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, 6 that the decemviri might 
 be officials optima lege 7 even without the curiate sanction. 
 
 Optima lege refers to the perfection of their right to the sacerdotal places (cf. 67 
 above), whereas opturao iure seems to apply to the privileges and honors attaching 
 to these positions. 
 
 1 Papinian, in Dig. iv. 4. 31 (slaves manumitted in the way here described were 
 exempt from payment to maintain their freedom, on the ground that they were 
 emancipated in a perfectly legal way — optimo iure); Lex Salp. (CIL. ii. 1963) 28: 
 " Ut qui optumo iure Latini libertini liberi sunt erunt " (Just as are, or shall be, 
 Latin freedmen or freemen of best standing) ; Cic. Verr. II. v. 22. 58 : " Quae colo- 
 nia est in Italia tarn bono iure, quod tarn immune municipium, quod ... sit usum.'' 
 
 2 Lex Col. Gen. 67, quoted in n. above. 
 
 3 Feist. 198. 32; cf. 189. 21. Applied to the censor, dictator, and interrex in Livy 
 ix. 34. 10-12, it has reference not to amount of power but length of office. 
 
 4 .See p. 186, n. 5. 
 
 6 As the Lex Col. Gen. 66 f.; p. 186, n. I above. 6 P. 186. 
 
 7 Magistratus optuma lege is the same as magistratus iustus; cf. Messala, p. 185, 
 n. 6. In this connection iustus does not signify legal as opposed to illegal, but 
 legally or technically perfect, correct; cf. for the meaning "proper," "perfect," Cic. 
 Jfam. ii. 10. 3 (iusta victoria) ; Caes. B. G. i. 23 (iustum iter) ; Livy i. 4. 4 (iusti cur- 
 
1 88 THE ROMAN ASSEMBLIES 
 
 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 for- 
 malities, 1 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 impe- 
 rium by the curiate law or of deriving the imperium from that 
 law by any process whatsoever. But mention is made of con- 
 ferring the imperium by a decree of the senate or by the suf- 
 frages of the people in the centuriate or tribal assembly 2 and 
 of confirming it by the curiate law. 3 
 
 sum amnis); xxxix. 2. 8 (iusto proelio). When Cicero (Red. in Sen. II. 27), 
 accordingly, speaks of the comitia centuriata as the iusta comitia, he does not imply 
 that the other comitia and their acts lack legality, but rather that they carry less 
 weight ; and when as late as 300 the patricians claimed that they alone had iustum 
 imperium et auspicium (Livy x. 8. 9), they could only mean that their right to these 
 powers was better established than that of the plebeians. C. Flaminius, consul in 
 217, possessed imperium, which he was actually exercising over his troops, but which 
 was not iustum, for he had neglected the auspical formalities appropriate to the 
 entrance upon the consulship (Livy xxii. I. 5). It would be wrong, however, to 
 suppose with Nissen, Beitr. z. rom. Staatsr. 51, that he commanded on the sufferance 
 only of his soldiers. 
 
 1 Including the auspices; see n. above. 
 
 2 The usual expression is " de suo imperio curiatam legem tulit," or " populum 
 consuluit; " Cic. Rep. ii. 13. 25; 17. 31; 18. 33; 20. 35; 21. 38; Livy ix. 38. 15. 
 According to Cicero, Phil. v. 16. 45, the senate grants the imperium to Octavianus, 
 a private citizen. The interrex, who could not have had a curiate law, nevertheless 
 possessed imperium (Livy i. 17. 5 f.), and the absolute imperium was granted by a 
 decree of the senate (Livy iii. 4. 9; Sail. Cat. 29; Hist. i. 77. 22). See also Cic. 
 Leg. iii. 3. 9: "Imperia, potestates, legationes, quom senatus creverit populusve 
 iusserit, ex urbe exeunto ; " Leg. Agr. ii. 7. 1 7 : " Omnes potestates, imperia, cura- 
 tiones ab universo populo proficisci convenit" (reference cannot here be to the 
 curiate assembly, which in this connection Cicero does not recognize as the people). 
 For the centuriate assembly, see Livy xxvi. 18. 9: "Omnes non centuriae modo sed 
 
 8 Cic. Leg. Agr. ii. 1 1 . 27 : " Curiatis earn (potestatem) comitiis . . . confirmavit." 
 
THE COMITIA CURIATA 189 
 
 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. 1 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. 2 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 
 
 etiam homines P. Scipioni imperium esse in Hispania iusserunt; " 22. 15: "Centu- 
 riam vero iuniorum seniores consulere voluisse, quibus imperium suffragio mandarunt." 
 For the tribal assembly, see T. Annius Luscus, Oral. adv. Ti. Gracch. in Fest. 314. 
 30: " Imperium quod plebes . . . dederat." It is a fact, too, that the tribal assembly 
 had power to abrogate the imperium; Livy xxvii. 20. II; 21. 1,4; xxix. 19. 6; cf. 
 p. 342, 360, 367. Also from Cic. Leg. Agr. ii. 11. 28 ("Vidit . . . sine curiata lege 
 decemviros potestatem habere non posse, quoniam per novem tribus essent consti- 
 tuti ") we must infer that had these decemvirs been elected in the regular way, by 
 the thirty-five tribes, they would have had the potestas without a curiate law. The 
 phrase nullis comitiis in II. 29 (" Si hoc fieri potest, ut . . . quisquam nullis comitiis 
 imperium aut potestatem adsequi posset, etc.,") implies that the imperium or potestas 
 may be obtained in more than one form of comitia — either the centuriata or the 
 tributa. In the same paragraph he asserts that on the principle followed by Servilius, 
 whom he is assailing, any one could obtain the imperium or potestas without the vote 
 of any comitia, for he does not consider the comitia curiata real comitia, seeing that 
 they have degenerated into a mere form. From these passages it is clear that Cicero 
 believed the imperium or potestas to be conferred by the centuries or tribes and 
 merely confirmed by the curiae. 
 
 1 Livy ix. 38 f.; Dion. Hal. v. 70. 4: "Ov &p if re fiov\i) irpoiKryrai xal 6 Srjiios 
 iiruj/ri<pl<rQ. To avoid unnecessary delay the sanctioning act was probably always 
 kept free from the obligation of the promulgatio per trinum nundinum; Livy iii. 27. 
 I ; iv. 14. 1 ; p. 396 f. below. 
 
 2 The consuls proposed the curiate law for the quaestors ; Tac. Ann. xi. 22. 
 That these inferior officials required the law is further indicated by Cic. Phil. ii. 20. 
 50. For the lower functionaries in general, see Gell. xiii. 15. 4. The agrarian 
 rogation of Servilius Rullus provided that the praetor should propose the law for 
 the decemviri agris adsignandis required for the administration of his measure; 
 Cic. Leg. Agr. ii. 11. 28. 
 
 That the magisterial helpers who were in need of the curiate law included not 
 only the quaestors but also the lictors seems to be indicated by Cic. Rep. ii. 17. 31 : 
 " Ne insignibus quidem regiis Tullus nisi iussu populi est ausus uti. Nam ut sibi 
 duodecim lictores cum fascibus anteire " (the remainder of the sentence is miss- 
 ing). Dion. Hal. ii. 62. 1 ascribes the introduction of the lictors to Tarquin the 
 Elder. This curiate law, however, may not be thought of by Cicero and Dionysius 
 as a mere sanction, but rather as a legislative act which called the lictors into being; 
 cf. Mommsen, Rom. Staatsr. i. 372, n. I, 613, n. I. 
 
igo THE ROMAN ASSEMBLIES 
 
 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. 1 Some- 
 thing 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 : 2 
 till then the praetor could not undertake judicial business ; the 
 consul could have nothing to do with military affairs 3 or hold 
 comitia for the election of his successor.* Some of Cicero's 
 contemporaries asserted that a magistrate who failed to pass 
 the law could not as promagistrate govern a province. 5 Or if 
 without a curiate law he made the attempt, he would be obliged 
 to conduct the administration at his own expense ; 6 and if as 
 promagistrate he gained a victory in war, he was denied a 
 triumph. 7 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 pro- 
 vision for the election of functionaries might include a dis- 
 pensing 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." 8 
 Yet even without this special provision the magistrate regularly 
 
 1 In the opinion of Lange, Rom. Alt. i. 300 ff., the election conferred potestas 
 only, the lex curiata imperium. 
 
 2 Dio Cass, xxxix. 19. 3. 
 
 8 Ibid.; Cic. Leg. Agr. ii. 12. 30: "Consulisi legem curiatam non habet, at- 
 tingere rem militarem non licet;" Livy v. 52.15: "Comitia curiata, quae rem 
 militarem continent." These statements, however, are not, as some have imagined, 
 to the effect that the lex curiata confers military power upon the magistrate. 
 
 4 Dio Cass. xli. 43. 3. 5 Cic. Fam. i. 9. 25. 
 
 6 Cic. Att. iv. 18. 4: " Appius sine lege suo sumptu in Ciliciam cogitat." 
 
 7 Ibid. 
 
 8 Such an article in favor of the decemviri agris adsignandis appeared in the 
 Servilian agrarian rogation of 63; Cic. Leg. Agr. ii. 11. 29; cf. p. 186. 
 
THE COMITIA CURIATA 191 
 
 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 ac- 
 ceptable to the gods ; 1 and another auspication was held for the 
 meeting of the curiae. 2 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. 3 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. 4 
 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; 5 and it is significant that the unlimited imperium and 
 iudicium were granted the magistrates not by the curiae but by 
 the senate. 6 The law was indeed considered indispensable to 
 the dictator in 310. 7 It is generally assumed by the moderns 
 that C. Flaminius, consul in 217, lacked the law ; 8 their reason 
 is the statement of Livy 9 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 
 
 1 According to Dion. Hal. ii. 5 f., those who are entering upon an office pass 
 the night in tents and in the morning under the open sky take the auspices. Livy, 
 xxi. 63. io, states that the consul dons his official robe in his own house, but 
 neither he nor any other authority intimates ^that the public auspices were taken 
 in his private house, as Mommsen, Rom. Staatsr. i. 616, asserts. 
 
 2 Livy ix. 39. I. s Ibid. xxi. 63. 9 ; Varro, in Gell. xiv. 7. 9. 
 4 Rubino, Rom. Vcrf. 365 S. 6 Mommsen, Rom. Staatsr. i. 612, n. I. 
 
 ' 6 Sail. Cat. 29 : " Ea potestas per senatum more Romano magistratui maxuma 
 permittitur, exercitum parare, bellum gerere, coercere omnibus modis socios atque 
 cives, domi militiaeque imperium atque iudicium sum mum habere ; aliter sine populi 
 iussu nullius earum rerum consuli ius est ; " Hist. i. 77.22: (The senate decreed) 
 " uti Appius Claudius cum Q. Catulo pro consule et ceteris quibus imperium est, 
 urbi praesidio sint operamque dent, ne quid respublica detrimenti capiat." The 
 interpretation which includes the interrex, Appius Claudius, with those who pos- 
 sessed the imperium is confirmed by Livy i. 17. 5 f., who informs us that the im- 
 perium of an interrex lasted five days. 7 Livy ix. 38 f. 
 
 8 Cf. Nissen, Beiir. z. fom. Staatsr. 51 f. • XXI. 63. 5 ffi 
 
192 THE ROMAN ASSEMBLIES 
 
 the war 1 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. 2 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. 3 
 
 A more valuable instance is that of L. Marcius, elected 
 propraetor by the army in Spain in 212. 4 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. 5 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 pre- 
 vented by this circumstance from holding military commands 
 during their year of office or from continuing in command into 
 the following year as promagistrates. 6 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 
 
 1 Fest. 347. 14; p. 336 below. 2 Cf. Livy xxii. 1. 5 ff. 
 
 8 Nissen, ibid., supposes, too, that Appius Claudius, consul in 1 79, went to the 
 army without a curiate law and for that reason the soldiers refused to obey him; 
 Livy xli. 10. Livy mentions the neglect of other formalities, but makes no refer- 
 ence to the curiate act. 
 
 4 Livy xxv. 37. 5 f. ; cf. xxvi. 2. I. 6 Ibid. xxvi. 2. 2. 
 
 B Dio Cass. xli. 43. In this instance the senate had conferred dictatorial power 
 upon the magistrates by its supreme decree (Caesar, B. C. i. 5); that they were 
 constitutionally in command, whereas the general direction of affairs by Pompey, 
 however autocratic, was only informal, is expressly stated by Dio Cass. xl. 43. 5. 
 What Nissen, Beitr. z. rom. Staatsr. 53 f., says of these magistrates' lack of military 
 imperium is therefore baseless. 
 
THE COMITIA CURIATA 193 
 
 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 pre- 
 torian presidency. 1 Although the want of the law involved 
 him in inconvenience, he finally accomplished his purpose with- 
 out 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. 2 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 sanction- 
 ing act to be unnecessary. Cicero, who informs us of this 
 matter, inclines to the interpretation of Appius. Our conclu- 
 sion, 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, 3 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, 4 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 5 and to prosecutions of the 
 candidates for bribery. 6 Their competence to hold the elective 
 comitia is further established by the senate's desire that they 
 
 1 Cic. Att. iv. 18. 4; Q. Fr. iii. 4. 6; Dio Cass, xxxvii. 47; xxxix. 65. The 
 praetor was Ser. Sulpicius Galba. 
 
 2 Cic. Fam. i. 9. 25; cf. Q. Fr. iii. 2. 3; p. 417 below. 
 
 8 Cic. Fam. i. 9. 25 : " Appius . . . dixit . . . legem curiatam consuli ferri opus 
 esse, necesse non esse." 4 Cic. Att. iv. 17. 1. 
 
 6 Cic. Att. iv. 17. 4; Q- Fr. iii. 3. 2; cf. p. Ill above. 
 6 Cic. Att. iv. 17. 3 ff.; 18. 3; Q. Fr. iii. 2. 3; 3. 2 f. 
 O 
 
194 THE ROMAN ASSEMBLIES 
 
 should hold them at the earliest possible moment. 1 The ulti- 
 mate failure of these consuls to elect successors was not owing 
 to any one's objecting to their competence. 2 
 
 Scholars have attached great weight to the case of the magis- 
 trates of 49, who with the Pompeian party, as has been stated, 3 
 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. 4 But the 
 case requires careful examination. The Pompeians had with 
 them two hundred senators, enough in their opinion to con- 
 stitute 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. 5 
 All these circumstances clearly imply an intention to assume a 
 temporary transfer of the city of Rome to the camp and to con- 
 duct the government in that place on the basis of this con- 
 stitutional 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. 6 Or in case 
 
 1 Cic. Alt. iv. 17. 3. 
 
 2 The compact (Cic. Att. iv. 17. 2) made between Appius and his colleague in 
 the consulship, 54, parties of the first part, and Memmius and Domitius, candidates 
 for the consulship for the ensuing year, parties of the second part, that the parties of 
 the second part in the event of their election should produce three augurs to testify 
 that the parties of the first part had proposed and carried a lex curiata, or in failure 
 to produce the witnesses should forfeit to the parties of the first part a specified sum 
 of money, assumes, inasmuch as the evidence was not to be forthcoming till after 
 the election, (1) that the lex curiata was not essential to holding the elective 
 comitia, but (2) that it was highly advantageous to the promagistrate. Cicero, who 
 often refers to the postponement of the elective comitia of this year, never inti- 
 mates that the want of a lex curiata stood in the way. 
 
 Varro, consul in 216, must have found it extremely difficult, though perhaps not 
 impossible, after carrying his lex de imperio in the comitium, to complete the con- 
 sular and pretorian elections in the Campus Martius — all between sunrise and 
 sunset on the same day; Livy xxii. 35. 4. 8 P. 192. 
 
 * Dio Cass. xli. 43. 3. Livy, v. 52. 15, proves that the comitia curiata could meet 
 only within the pomerium. 6 Dio Cass. xli. 43. 2. 6 Cf. Livy v. 52. 15. 
 
THE COMITIA CURIATA I95 
 
 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 them- 
 selves, 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 respec- 
 tive offices had not been sanctioned by the curiae governing 
 provinces and holding military commands ; we have seen con- 
 suls who lacked the curiate sanction attending with less in- 
 convenience 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 dis- 
 turbance 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. 1 The quaestors entered office 
 regularly on December 5 ; 2 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 sanc- 
 tioned. It seems clear that ordinarily one curiate law was 
 passed each year, under the joint presidency of the consuls and 
 
 1 Dio Cass, xxxix. 19. 3. The date of the trial was Feb. 7, 56; Cic. Q. Fr. ii. 3. 2. 
 
 1 Lex Cornelia de XX Quaes/, in CIL. i. 202 ; Cic. Verr. i. 10. 30 ; Schol. 
 Gronov. 395. Mark Antony when quaestor performed the functions of his office 
 through the year without the sanctioning law ; Cic. Phil. ii. 20. 50. 
 
196 THE ROMAN ASSEMBLIES 
 
 praetors, for all the officials who required it. 1 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 impor- 
 tant. 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. 2 In 390, accord- 
 ing to Livy, 3 it voted the restoration of a citizen from exile. 
 Rubino 4 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. 5 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 attend- 
 ing the comitia curiata, 6 (2) because without a statute a resolu- 
 tion of the assembly was valid, if each voting division was 
 represented by a single person, 7 (3) because the measure, accord- 
 ingly, 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, 8 we have a right to infer from the extant fragment 
 
 1 It is always spoken of in the singular, the implication being that one act served 
 for all ; cf. especially Caesar, B. C. i. 6 ; Livy ix. 38. 15; Dio Cass, xxxix. 19. 3. 
 
 2 Cic. Frag. A. vii. 48 : " Itaque auspicato . . . tr. pi. comitiis curiatis creati 
 sunt " ; Dion. Hal. vi. 89. I ; ix. 41. 2 ; cf. Livy ii. 56. 2 ; p. 262 below. 
 
 3 V. 46. 10. 4 Rom. Verf. 381 and n. 2. 
 
 6 Based on his reading of Fest. 351. 34 : " (Triginta lictoribus l)ex curiata fer- 
 tur; quod Hanni(bal in propinquitate) Komae cum esset, nee ex praesidi(is disce- 
 dere liceret), Q. Fabius Maximus Verrucosus egit per tr. pi. et Ma)rcellus cos. 
 facere in(stituit." . . . ). 
 
 6 The attendance on the comitia tributa was sometimes as low as five to the tribe ; 
 Cic. Sat. 51. 109. 
 
 7 Cic. Leg. Agr. ii. 7. 16 f. ; in connection with the preceding note and p. 127. 
 
 8 Mommsen's restoration is, "(Transit imperium nee denuo l)ex curiata fertur, 
 quod Hanni(bal in vicinitate) Romae cum esset nee ex praesidi(is tuto decedi pos- 
 
THE COMITIA CURIATA 197 
 
 (1) that in the year mentioned, owing to the nearness of Hanni- 
 bal, 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. 1 It is known that the 
 consul Q. Fabius Maximus presided at the consular elections 
 for 214. 2 He and M. Claudius Marcellus, who as proconsul was 
 at the time in command of an army, were elected. 3 Down to 
 this time the custom had probably been for men who were 
 reelected to an office or who passed from a promagistracy to the 
 corresponding magistracy, or the reverse, to reenact 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, 4 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 con- 
 trol over the commanders it had insisted that they should begin 
 their terms with all due formality at Rome. 5 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 
 
 set), Q. Fabius Maximus Verru(cossus M. Claudius Ma)rcellus cos. facere in(stitu- 
 erunt) " ; Rom. Forsch. ii. 412; Rom. Staatsr. i. 613,11. 3. Bergk, Rhein. Mus. 
 N. F. xix (1864). 606, with less success proposes translatione imperii ; cf. also Her- 
 zog, Rom. Slaatsverf. i. 679. The passage is in fact past healing, though Momm- 
 sen's reconstruction is an improvement on Rubino's. 
 
 1 The second inference is from the present tense of the verb " fertur." 
 
 2 Livy xxiv. 7-9. 
 8 Ibid. 9. 3. 
 
 4 Cf. Herzog, Rom. Staatsverf. i. 679. It is not to be assumed, however, that the 
 senatus consultum had to be repeated at every such case of transition. Lange, Rom. 
 Alt. ii. 175, 704 f., who gives the measure a wider constitutional scope, assumes that 
 it was a plebiscite. Mommsen, Rom. Forsch. ii. 413, supposes that the two consuls 
 on entering office in 214 simply omitted the curiate sanction on the ground that they 
 already held the imperium, which was unlimited in duration, and that the jurists 
 accepted this procedure as constitutional. The specific motive for this action, Momm- 
 sen asserts, was the fact that they were absent from Rome at the opening of their 
 official year. But the truth is that they were both present (Livy xxiv. 10 f.), and had 
 accordingly no occasion for establishing such precedent on their own responsibility. 
 All they did in the matter, then, was to take advantage of a measure already enacted. 
 
 6 Cf. Livy xxi. 63; xxii. 1. 
 
198 THE ROMAN ASSEMBLIES 
 
 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 con- 
 sequence of it 1 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 2 and thirty 
 lictors, 3 who meekly 4 cast the votes in obedience to the com- 
 mand of the presiding magistrates. 5 It is a noteworthy fact 
 that whereas the statesman Cicero has much to say of the curi- 
 ate 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 con- 
 nect its revival closely with their origin. Cicero 6 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, 7 but in reality as a part of the religious 
 
 1 The existence of the measure of 215 proves that the curiate assembly and 
 curiate law were at the time something more than a mere formality. 
 
 2 Cic. Alt. iv. 17. 2; cf. p.' 113, 194, 11. 2. The Ciceronian passage, our only 
 authority on this point, seems to imply a custom. 3 Cic. Leg. Agr. ii. 12. 30. 
 
 4 On the servility of the lictors, see Cic. Verr. ii. 29. 72 ; Pis. 22. 53. 
 
 6 That the comitia curiata were no longer attended by the people in the time of 
 Cicero is attested by Leg. Agr. ii. II. 27 : " Curiatis . . . comitiis, quae vos non 
 initis " ; cf. n. 6. 
 
 6 Leg. Agr. ii. 11. 27. On the Aelian and Fufian statutes, see p. 116, 358 f. 
 
 7 Cic. Leg. Agr. ii. 12. 31 : " Illis (comitiis) ad speciam atque ad usurpationem 
 vetustatis per . . . Iictores auspiciorum causa adumbratis." 
 
THE COMITIA CURIATA 199 
 
 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 unes- 
 sential 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. 1 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. 2 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. 3 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. 4 
 
 I. Comparative View: Spencer, H., Principles of Sociology, ii. chs. viii, 
 ix ; Post, A. H., Grundlagen des Rechts, 130-6 ; Die Anfdnge des Stoats- und 
 Rechtsleben, 113 f. ; Jenks, E., History of Politics, chs. ix, xi, xii ; Schrader, O., 
 Reallexikon, 923-5; Sprachv. u. Urgesch. ii 8 (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 ; 
 Schroder, 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. Staatsaltert'umer, 67-9 (Homeric) ; 
 166-76 (Lacedaemonian) ; 504-38 (Athenian) ; Gilbert, G., Constitutional An- 
 tiquities of Sparta and Athens, 50-2 (Lacedaemonian) ; 285-310 (Athenian) ; 
 
 1 Cic. Leg. Agr. ii. 12. 30: "Consulibus legem curiatam ferentibus a tribunis 
 plebis saepe est intercessum " ; cf. Dio Cass, xxxix. 19. 3. 
 
 2 Cic. Leg. Agr. ii. n. 29; p. 227 above. 
 
 8 Cic. Fam. i. 9. 25; p. 193 above. * Herzog, Rom. Staatsverf. ii. 905. 
 
200 THE ROMAN ASSEMBLIES 
 
 Buchholz, E., Homer ische Realien, ii. 24-7; Seymour, T. D., Life in the 
 Horn. Age, 101-9 ; Moreau, F., Les assemblies politiques d^apres VIlia.de et 
 VOdyssee, in Revue des etudes Grecques, vi (1893). 204-50; Finsler, G., Das 
 homerische Kbnigtum, in N. Jahrb. fur kl. Alt. ix (1906). 313-36; Fustel 
 de Coulanges, Ancient City, 216 f., 244 ff., 329; Histoire des institutions poli- 
 tiques de Vancienne France: La Gaule Romaine (1891) ; L 'invasion ger- 
 manique (1891) ; La monarchie Franque (1888) ; Farrand, L., Basis of 
 American History, see index, s. Council ; Bernhoft, F., Staat und Recht der 
 rbm. Kbnigszeit, 145-56. 
 
 II. The Comitia Curiata : Schulze, C. F., Von den Volksversammlungen 
 der Rbmer, 282-307 ; Newman, On the Comitia Curiata, in Classical Museum, 
 xx (1848). 101-27; Mommsen, Die patricisch-plebejischen Comitien der 
 Republik, in Rbm. Forschungen, i. 140-50 ; Nichtexistenz patricischer Sonder- 
 versammlungen in republikanischen Zeit ibid. i. 167-76; Burgerschaft und 
 Senat der vorgeschicht lichen 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; 
 Rom. Staatsrecht, i. 609-15 ; iii. 33-42, 316-21 ; Obudzinski, Die Kuriat- und 
 Centuriatkomitien der Romero Kappeyne van de Coppello, J., Comitien, 60- 
 86 ; Hallays, A., Cornices a Rome, ch. i ; Morlot, E., Cornices llectoraux, ch. ii ; 
 Soltau, W., Altrom. Volksversammlungen, 37-106 ; Humbert, G., Comitia, in 
 Daremberg et Saglio, Diet. i. 1374-7; Liebenam, W., Comitia: I. Curiata, 
 in Pauly-Wissowa, Real-Encycl. iv. 682-6; Curiata Lex, ibid. iv. 1826-30; 
 Hullmann, K. D., Urspr'unge der rbm. Verfassung, 96-8 ; Rubino, J., Rbm. 
 Verfassung und Geschichte, 233 ff. ; Madvig, J. N., Verfassung und Ver- 
 waltung des rbm. Staates, i. 222-6 ; Lange, L., Rbm. Altertilmer, i. 396-413 ; 
 Mispoulet, J. B., Institutions politiques des Romains, i. 194-203 ; Willems, P., 
 Droit public Romain, 49-54; Herzog, E., Rbm. Staatsverfassung, i. 106-18, 
 1059-65; Schiller, H., Rbm. Alt. iv. 628 f. ; Karlowa, O., Rbm. Rechts- 
 geschichte, 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. sacks. Gesellsch. d. Wiss. vii 
 (1879). 555-826; Bernhoft, 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 Erbrterungen ilber den rbm. Staat, 1-30; 
 Hoffmann, E., Patricische und plebeiische Curien; Nissen, A., Beilrdge zum 
 rbm. Staatsrecht, 39 ff. ; Le Jeune, M. L., Vimperium des magistrals de Rome 
 sous le Republique; Schwegler, A., Rbm. 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 (ins), 515-7 
 (lex) ; Rothstein, M., Suffragium, in Festschrift zu Otto Hirschfelds 6o' ,cm 
 Geburtstage, 30-3 ; Botsford, G. W., Lex Curiata, in Pol. Sci. Quart, xxiii 
 (1908). 498-5 1 ?- 
 
CHAPTER X 
 
 THE ORGANIZATION OF THE COMITIA CENTURIATA 
 
 I. In the Early Republic 
 
 From the point of view of the Roman historians the centuri- 
 ate assembly, 1 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 2 and its earliest statute the 
 Valerian law of appeal. 3 Though they could not know pre- 
 cisely when it voted for the first time, they were right in under- 
 standing 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,* and it certainly 
 
 1 This chapter historically follows ch. iv. 
 
 2 Livy i. 60. 4. This is the first act which Livy records, and it is his opinion that 
 the last king never consulted the people ; i. 49. 3. His view harmonizes with that 
 of Dionysius, iv. 40. 3, that Servius intended to resign his office and establish a. 
 republic, had he lived. 
 
 8 Cic. Rep. ii. 31. 53 : "(Valerius Poplicola) legem ad populum tulit earn, quae cen- 
 turiatis comitiis prima lata est." Dionysius, iv. 20. 3, supposes that Servius actually 
 used this assembly for elections, legislation, and declarations of war, that Tarquin the 
 Proud set aside the Servian arrangement (iv. 43. 1), which was restored at the be- 
 ginning of the republic. The first of these ideas is an inference from republican 
 usage, not based on knowledge of any definite act of the assembly in the regal period. 
 In this matter, Soltau, Altrom. Volksversamml. 264, has given him too much credit. 
 
 * An objection to the view represented by Soltau, ibid. 270-5, that the cooperation 
 of the army in the overthrow of Tarquin the Proud caused its immediate transforma- 
 tion into the comitia centuriata, is that we have no ground for accepting as historical 
 the details of the overthrow to which he calls attention. In p. 285-96 he attempts 
 to reconstruct the earliest constitution of the republic on the theory that the army 
 elected the consuls (283), that for a time those who were not actually on military 
 duty were excluded from a vote in the centuriate assembly. The sources give no in- 
 formation regarding such an assembly, and we have no right to assume it, at least as 
 a regular, recognized institution, for any period however early. Lange, Rom. Alt. 
 i. 465, supposes that with the founding of the republic the assembly began to diverge 
 from the army, the two institutions having previously been identical; cf. Guiraud, in 
 Rev. hist, xvii (1881). I. 
 
 201 
 
202 THE ROMAN ASSEMBLIES 
 
 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 com- 
 mands 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, 1 for promising 
 the reward of spoil in case of victory, 2 for reprimanding as well 
 as for encouraging. 3 On one occasion the master of horse, call- 
 ing a contio of soldiers, appealed to them for protection from 
 the dictator,* and they replied with a shout that they would allow 
 no harm to befall him. 5 Thereupon the dictator summoned an- 
 other contio to witness the court-martial of the rebellious officer. 6 
 On another occasion the consuls asked the soldiers to decide a 
 question by acclamation, and they obeyed. 7 We hear of the 
 adjournment of a meeting on the motion of a military tribune. 8 
 After a victory, honors and rewards were granted by vote of the 
 soldiers. 9 For acclamation, the regular form of voting, 10 was 
 sometimes substituted a division of the army to right and left 
 for the sake of silence. 11 A military assembly, meeting at Veii, 
 decided upon the appointment of Camillus, then in exile, to the 
 dictatorship, and despatched the resolution to Rome. 12 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. 13 Long afterward 
 the army in Spain elected a propraetor. 14 It may be that much 
 other political business was decided by the army in the troub- 
 lous 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 
 
 1 Livy ix. 13. 1. 2 Livy vii. 16. 4. 3 Livy v. 28. 7; vii. 36. 9. 
 
 4 Livy viii. 31. 6 Ibid. 32. I. 6 Livy viii. 32 f. 
 
 7 Livy x. 19. 1 1. a Livy vii. 36. 9. » u,^ c h. 37, especially § 9. 
 
 10 Cic. Fam. xi. 13. 3 ; Livy vii. 37. 9 ; viii. 32. I ; ix. 13. 1 ; x. 19. 11 ; xxviii. 
 26. 12; xl. 36. 4; xlii. 53. 1 ; Dion. Hal. iii. 13. I. 
 
 11 Livy vii. 35. 1 f. ™ Livy v. 46. 5 ff. M Livy vii. 16. 7; p. 297. 
 14 Livy xxvi. 2. 2 (211 B.C.). On the military contio, see also p. 140. 
 
ORGANIZATION OF COMITIA CENTURIATA 203 
 
 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 ; 1 before the reform it met ordi- 
 narily in military array under its officers and with banners dis- 
 played ; 2 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. 3 For these 
 reasons it was frequently, even in official language, termed ex- 
 ercitus. 4 The use of this word, however, should not mislead us 
 into supposing that the assembly was an actual army. Though 
 Dionysius 5 represents the first meeting as armed — a mere sup- 
 position, apparently to account for its known military features 
 — the fact is that the citizens carried weapons to none of the 
 assemblies. 6 Strictly, too, the centuriate gathering was termed 
 exercitus urbanus in contrast with the real army designated 
 as exercitus armatus or classis procincta. 7 The facts thus far 
 
 1 Laelius Felix, Lib. ad. Muc. in Gell. xv. 27. 5 : " Centuriata autem comitia intra 
 pomerium fieri nefas esse, quia exercitum extra urbem imperari oporteat, intra urbem 
 imperari ius non sit." 
 
 2 Dion. Hal. vii. 59. 3 : Zuk^ci Si rb irXi}0os els rb irpb ttjs ir6\e<i>s 'Apeiov ireSlov 
 inrb XoxaYoit xal ffti/ulois Tcray/itvov &<rirep iv woKipup; p. 211. During the session 
 Janiculum was occupied by a garrison, above which, in view of the Campus Martius, 
 waved a flag; Dio Cass, xxxvii. 27; cf. Gell. xv. 27. 5. 
 
 8 P. 104, 140 f., 244. 
 
 4 Comm. Consular, in Varro, L. L. vi. 88; Livy xxxix. 15. II; Laelius Felix, in 
 Gell. xv. 27. 5; Fest. ep. 103; Macrob. Sat. i. 16. 15; Serv. in Aen. viii. 1. Momm- 
 sen, Rom. Staatsr. iii. 216, 294, n. 2, is of the opinion that the centuriate assembly 
 was termed exercitus because it met for military exercise on the Campus Martius. 
 But we have no evidence that the assembly ever took such exercise ; in fact the drill 
 of the proletarian mob would be hardly less ridiculous than that of the nonagenarians, 
 both of whom had a right to vote in the assembly. 
 
 6 IV. 84. 5. 6 Mommsen, Rom. Staatsr. iii. 216 and n. 3. 
 
 7 Fabius Pictor, Ann. i, in Gell. x. 15. 3 f.: "Dialem flaminem . . . religio 
 est classem procinctam extra pomerium, id est, exercitum armatum, videre ; idcirco 
 rarenter flamen Dialis creatus consul est, cum bella consulibus mandabantur." 
 There was no objection to this flamen's seeing the comitia centuriata, but the armed 
 centuries it was not lawful for him to see. Cf. Varro, L. L. vi. 93 : " Alia de causa 
 hie magistratus (quaestor) non potest exercitum urbanum convocare ; censor, consul, 
 dictator, interrex potest, quod censor exercitum centuriato constituit quinquennalem, 
 
204 THE ROMAN ASSEMBLIES 
 
 adduced amply warrant us in refusing to consider the voting 
 assembly an army. 
 
 But some imagine the censorial assembly for the assess- 
 ment and lustration of the citizens to have been an army. 1 For 
 this view they rely upon Dionysius, 2 who states that the people 
 came armed to the first lustrum, and upon an uncertain passage 
 from the Censoriae Tabulae, quoted by Varro, 3 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;* 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 bur- 
 dens 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, 6 as well as the women and 
 
 cum lustrare et in urbem ad vexillum ducere debet." But the term exercitus urbanus 
 sometimes denotes the body of men enlisted for military service from those who were 
 ordinarily exempt ; Livy xxii. II. 9. 
 
 1 Mommsen, Rom. Staatsr. iii. 265, supposes that in the original form of census- 
 taking the citizens were so arranged in companies under their leaders as to constitute 
 an army ready to be led against the enemy. But the only citation he offers (Dion. 
 Hal. ii. 14, perhaps for iv. 22. I ; see n. below) has no bearing on the matter. 
 
 2 IV. 22, i: Ke\eiJ(ras Toils iro\/Tas a7rapras o-vve\6etv els to fieyttrTov tuv vpb 
 ttjs irAXews ireSlav %x 0VTas T * tfirXa xal rdfas robs O'lirTeis Kord t£\i) xal roiis 
 trefoils iv tfraWayyi ko! Toits i<TTa\fiivovs t6v <pi\tKOv ottXlct^v iv tois tSlois eicdffTovs 
 \6xots KaBapfiov airrwv iTrorfffaTO. 
 
 8 L. L. vi. 86 : " Censor . . . praeconi sic imperato ut viros vocet. . . . 
 Omnes quirites pedites armatos, privatosque curatores omnium tribuum, si quis pro 
 se sive pro alio rationem dari volet, vocato in licium hue ad me " (Mommsen's 
 reading, Rom. Staatsr. ii. 361, 11. 6). Spengel reads, " Omnes quirites, (equites) 
 pedites, magistratos privatosque, curatores," etc., in which armatos does not appear. 
 
 4 Such an inspection by the censors, if it ever existed, must have fallen early into 
 disuse (cf. Mommsen, ibid. iii. 397); but we could more reasonably suppose that 
 the inspection of the arms and of the physical condition of the men always belonged 
 to the officers who attended to the levy; Polyb. vi. 20. 
 
 6 Cf. Livy xliii. 14. 8 : " Censores edixerunt . . . qui in patris aut avi potes- 
 tate essent, eorum nomina ad se ederentur.'' The father gave the census of his son; 
 Fest. ep. 66 : " Duicensus (census of two) dicebatur cum altero, id est cum filio 
 census; " Dion. Hal. ix. 36. 3. The son was classed according to the census of the 
 father; Livy xxiv. II. 7. 
 
ORGANIZATION OF COMITIA CENTURIATA 205 
 
 children. 1 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 con- 
 dition, 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. 2 On the contrary, the soldiers were enrolled directly 
 from the tribes. 3 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 pur- 
 pose the men of military age who were free from duty for the 
 time being, or who had served the required number of cam- 
 paigns — sixteen in the infantry or ten in the cavalry 4 — or 
 who were exempt on account of bodily infirmity or for any other 
 reason, had to be admitted to the junior centuries, thus mate- 
 rially 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. 5 The mechanics who were liable to skilled 
 
 1 Cic. Leg. iii. 3. 7 ; Dion. Hal. iv. 15. 6 ; v. 75. 3 ; Gell. iv. 20. 3 ff. 
 
 2 Notwithstanding Genz, Cenluriatverf. II ; Lange, Rom. Alt. i. 477. 
 
 3 Polyb. vi. 20 ff. The Romans were of the opinion that the same principle held 
 for the earliest times ; Varro, L. L. v. 89 ; Dion. Hal. iv. 14 ; cf. Soltau, Altrom. 
 Volksversamml. 337. 4 Polyb. vi. 19. 2. 
 
 6 The five classes contained accordingly 80, 20, 20, 20, and 28 centuries respec- 
 tively ; cf. p. 66 {., 77 ; see also table on p. 210. A great difference exists between 
 Livy and Dionysius, on the one hand, and Cicero, on the other, as to the number of 
 
206 THE ROMAN ASSEMBLIES 
 
 service in the army 1 were then grouped for voting purposes in 
 two centuries, that of the smiths and that of the carpenters, 2 
 based on the two guilds in which these artisans were already- 
 organized. 3 Authorities differ as to the classes with which 
 they were associated. Livy 4 adds them to the first class. 
 Cicero, 6 too, places a century of carpenters with that group, 
 making no mention of the smiths, whereas Dionysius 6 assigns 
 both centuries of mechanics to the second class. The explana- 
 tion 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 tradi- 
 tion 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. 7 In like manner the trumpeters 
 (tubicines, liticines) and the hornblowers (cornicines) were 
 grouped each in a century for voting in the comitia, 8 also on 
 
 centuries in the highest class. Cicero {Rep. ii. 22. 39 : " Nunc rationem videtis 
 esse talem, ut equitum centuriae cum sex suffrages et prima classis addita centuria, 
 quae ad summon usum urbis fabris tignariis est data, LXXXVIIII centurias ba- 
 bebat ") states that the eighteen centuries of knights, the centuries of the first class, 
 and one century of mechanics amounted to eighty-nine, which would give but seventy 
 to the first class. The most satisfactory explanation of this difficulty seems to be that 
 Cicero, while professing to describe the earlier centuriate system, had in mind a 
 formative stage of the new organization, in which the first class comprised seventy 
 centuries ; p. 67, 215, n. 2. On the number in the fifth class, see p. 66, 77, 208. 
 
 1 P. 68. ' 
 
 2 The two are mentioned by Livy i. 43. 3 and Dion. Hal. iv. 17. 3 ; vii. 59. 4. 
 Pliny, N. H. xxxiv. I. I, speaks of a guild of coppersmiths, and Plut. Num. 17, refers 
 to the same guild and to that of the carpenters, ascribing both to Numa as founder. 
 Cicero, Sep. ii. 22. 39 ; Orat. 46. 156, mentions only the century of carpenters. 
 Placing this century with the first class, he either overlooks that of the smiths or 
 wishes to reckon it with the second class (cf. Huschke, Verf. des Serv. 153). As 
 he reckons the total number of centuries at one hundred and ninety-three, he has 
 allowed for both. 
 
 8 Plut. Num. 17 ; also n. above. 4 I. 43. 3. 
 
 6 Sep. ii. 22. 39 ; cf. n. 2 above. 
 
 6 IV. 17. 3. 
 
 7 Cf. Smith, Som. Timokr. 91 f. with citations. 
 
 8 Cic. Sep. ii. 22. 40 ; Livy i. 43. 7 ; Dion. Hal. iv. 17. 3 f. ; vii. 59. 5 ; cf. Varro, 
 L.L. v. 91 ; Cato, in Gell. xx. 2. 
 
ORGANIZATION OF COMITIA CENTURIATA 207 
 
 the basis of their guild organizations. 1 The accensi velati, who 
 as we are informed followed the army in civilian dress and with- 
 out weapons, 2 also received a centuriate organization. As to 
 the number of centuries belonging to them opinion has differed. 
 Some, formerly including Mommsen, 3 have assumed two. Livy, 4 
 however, gives but one century ; Cicero 5 seems to have only 
 one in mind ; and in imperial time there was a single collegium, 
 or century, of accensi, 6 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. 7 Lowest in rank 
 of the supernumerary centuries was that of the proletarians. 8 
 The government so designated those citizens who owned no 
 land, 9 and hence were poor. They were exempt from military 
 duty, excepting in so far as they served with arms furnished by 
 the state. 10 Though few in the beginning, their number grad- 
 ually increased till in the time of Dionysius u 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, 12 which was not counted with any class but was reported 
 
 1 Flut. Num. 1 7, speaks of only one guild of musicians, the pipers. But the cor- 
 nicines formed a guild in imperial times ; CIL. vi. 524. The two centuries were 
 united in the collegium aeneatorum ; Fest. ep. 20 ; CIL. vi. 10220 f. ; Domazewski, 
 in Pauly-Wissowa, Real-Encycl. iii. 1954. 2 P. 68, 80. 
 
 8 Rom. Trib. 137, accepted by Genz, Ctnturienverf. 3, 8; Soltau, Altrom. Volks- 
 versamml. 254, 317, 520, n. 1. Huschke, Verf. d. Serv. 172, assumes ten and includes 
 them in the fifth class. Lange, Rom. Alt. i. 47 1 , supposes the accensi to have included 
 the entire fifth class, which in his opinion was not instituted till the beginning of the 
 republic. 1 4 1. 43. 7. 
 
 6 Rep. ii. 22. 40 : " Quin etiam accensis velatis, liticinibus, cornicinibus, pro- 
 letariis." 
 
 6 CIL. vi. 9219: " Praef(ectus) c(enturiae) a(ccensorum) v(elatorum) " ; 
 cf. Mommsen, Rom. Staatsr. iii. p. xi, n. I ; Ulpian, Vat. Frag. 138, mentions the 
 privileges of this century. A decuria of the accensi velati is referred to by CIL. vi. 
 1973; °f- Kubitschek, in Pauly-Wissowa, Real-Encycl. i. 136. 
 
 7 Cf. Mommsen, R'om. Staatsr. iii. 282; Kubitschek, in Pauly-Wissowa, Real- 
 Encycl. i. 135 ff.; Domazewski, ibid. iii. 1953 f. 8 P. 68. 
 
 9 XII Tables, in Gell. xvi. 10. 5 : " Adsiduo vindex adsiduus esto. Proletario iam 
 civi, cui, quis volet, vindex esto." 
 
 10 Livy i. 43. 8; Dion. Hal. iv. 18. 2; Ennius, in Gell. xvi. 10. 1. n IV. 18. 2. 
 
 12 That there was a proletarian century, besides the accensi velati, in the comitia 
 centuriata is proved by Livy i. 43. 8; Dion. Hal. iv. 18. 2; Cic. Rep. ii. 22. 40. 
 Mommsen's attempt {Rom. Staatsr. iii. 237 f., 285 f.) to rule this century out of 
 
208 THE ROMAN ASSEMBLIES 
 
 after all the others. Dionysius x wrongly speaks of it as a 
 sixth class. The existence of this century is due to the prin- 
 ciple that no one should be excluded from the right to vote on 
 account of poverty. 2 
 
 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. 3 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. 4 Two of the thirty centuries assigned to that class 
 in the comitia centuriata must therefore have been in fact super- 
 numerary. If one was the accensi, what was the other ? Most 
 probably it was the century of the tardy described by Festus, 5 
 made up at each meeting of those who came too late to vote in 
 their own classes. Obviously all writers who apply the discrip- 
 tio centuriarum to the army view this century, as well as that of 
 the proletarians, with suspicion. 6 The two centuries of the 
 accensi and the tardy should be included among, not added to, 
 the thirty of the fifth class. 7 Having reached this result, it 
 
 existence has failed, notwithstanding the approval of some recent writers, as Doma- 
 zewski, in Pauly-Wissowa, Real-Encycl. iii. 1953. Cf. Kiibler, ibid. iii. 1521 ff. 
 
 1 IV. 17. 2; vii. 59. 3. 2 cf. Livy i. 43. 10. 
 
 3 Cf. p. 66, 77, u . 2. * P. 77 and n. 2. 
 
 6 177. 21: '"Niquis scivit' centuria est, quae dicitur a Ser. Tullio rege consti- 
 tuta, in qua liceret ei suffragium ferre, qui non tulisset in sua, nequis civis suffragii 
 iure privaretur. . . . Sed in ea centuria, neque censetur quisquam, neque centurio 
 praeficitur, neque centurialis potest esse, quia nemo certus est eius centuriae. Est 
 autem ni quis scivit nisi quis scivit." 
 
 6 As does Mommsen, R'om. Staatsr. iii. 285 f. 
 
 7 This view accords best with the words of Livy i. 43. 7 : " In his accensi, corni- 
 cines tubicinesque, in tres centurias distribute " (they were reckoned among the 
 thirty). 
 
ORGANIZATION OF COMITIA CENTURIATA 209 
 
 might seem advisable for us to assume no further supernumerary 
 centuries for the fifth class, but to follow the authority of Diony- 
 sius in assigning the musicians to the fourth. Or as the trump- 
 eters 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 un- 
 attainable. The notion of Dionysius that one century of musi- 
 cians voted with the seniors, the other with the juniors, and so 
 of the mechanics, 1 is erroneous; for the seniors did not vote 
 separately from the juniors. 
 
 In the centuriate assembly each of the six tribal troops of 
 knights 2 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. 3 Afterward 
 as new voting groups were added to the equites they came to be 
 called centuries, and thence the term extended to the old. 4 The 
 centuriate organization of the comitia did not demand the crea- 
 tion 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, 5 
 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, 6 the eques retained 
 his public horse, and consequently his membership in an eques- 
 trian century, long after his retirement from active duty. 7 The 
 increase in the number of equestrian votes was owing to the 
 
 1 Accepted by Huschke, Verf. d. Serv. 152, but rejected by Mommsen, Horn. 
 Staatsr. iii. 283, n. 1. 2 P. 7, 62, 74 ff. 93, 96. 
 
 3 Cic. Rep. ii. 22. 39: " Equitum centuriae cum sex suffragiis"; Fest. 334. 29. 
 Cic. Phil. ii. 33. 82, is uncertain. 
 
 4 Cic. Rep. ii. 22. 39 (n. above); Livy i. 36. 7; 43. 9. 5 P. 62, 93. 
 
 "P-93- 
 
 7 L. Scipio Asiagenus retained his public horse till, six years after his consulship, 
 he was deprived of it by Cato the censor ; Plut. Cat. Mai. 18; Livy xxxix. 44. I. 
 Both censors of the year 204 had public horses ; Livy xxix. 37. 8. The senators 
 were equites and voted in the equestrian centuries as late as 129; Cic. Rep. iv. 2. 2; 
 cf. Gerathewohl, Reiter und Rittercent. 77 and n. 2 f. 
 P 
 
210 
 
 THE ROMAN ASSEMBLIES 
 
 participation of plebeians in the mounted service. 1 From them 
 twelve equestrian centuries were formed for the centuriate assem- 
 bly, and added to the six groups already existing. This increase 
 probably came about in the course of the fourth century, accom- 
 panying or following the enlargement of the infantry from two to 
 four legions. 2 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, 3 (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 iz 
 
 Classes 
 
 Junior Centuries 
 
 Senior 
 Centuries 
 
 Ratings in Asses 
 
 ACCORDING TO LlVY 
 
 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 
 
 1 P. 94- 2 P. 96. 
 
 8 Livy viii. 8, while describing the manipular arrangement under the year 340, 
 assigns the beginning of it to the time of Camillas, considering it due to the intro- 
 duction of pay; Plut. Cam. 40 (for change of armor at time of Camillus); cf. Sol- 
 tau, Altrom. Volksversamml. 278; Marquardt, Rom. Staatsv. ii. 332 f.; Delbruck, 
 Gesck. d. Kriegsk. i. 235. 
 
ORGANIZATION OF COMITIA CENTURIATA 211 
 
 Before the reform this assembly met in military array with ban- 
 ners displayed, each company under its centurion. 1 The voting 
 was oral. Probably it was at first by acclamation ; if so the sug- 
 gestion 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. 2 The centurions may originally 
 have served as rogatores, to collect and report the votes. 8 
 Each century cast a single vote, which in historical time the 
 majority of its members decided. 4 The voting proceeded ac- 
 cording 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. 6 The an- 
 nouncement of the prerogative votes greatly influenced the 
 action of those which followed. 6 
 
 II. The Reform 
 
 The study of the centuriate assembly begun earlier in the 
 volume 7 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 im- 
 petus to the activity of the assemblies in general, as is mani- 
 fested in the Genucian, Publilian, and Hortensian legislation. 
 
 1 Dion. Hal. vii. 59. 3 (p. 203, n. 2). There seems to be no reason for doubting 
 this statement; cf. Herzog, Rom. Staatsverf. i. 1 100. 2 P. 157 b. 
 
 8 Lange, Rom. Alt. i. 563. His citations, however (Fest. 177. 27; Cic. Oral. ii. 
 64. 260), do not prove the point; Herzog, ibid. * Dion. Hal. iv. 21. I; x. 17. 
 
 6 Livy i. 43. 11; Dion. Hal. iv. 20. 3-5; vii. 59. 3-8; x. 17. 3. On the preroga- 
 tive equestrian centuries, see Livy i. 43. 8; v. 18. I: " Praerogativa . . . creant" 
 (corrupt text) ; x. 22. 1 : " Praerogativae et primo vocatae centuriae . . . dicebant " ; 
 Fest. 249. 7. 
 
 6 Cic. Plane. 20. 49; Q. Fr. ii. 14. 4; Div. i. 45. 103; Fest. ibid. 7 Ch. iv. 
 
212 THE ROMAN ASSEMBLIES 
 
 In 312 when the change was made in the appraisements from 
 land to money, many aerarii who had voted with the proleta- 
 rians must have been advanced to the higher classes. 1 This 
 step toward the democratization of the comitia centuriata, fol- 
 lowing 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 269.2 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 cen- 
 tury from the first class on each occasion before the voting be- 
 gan ; (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 s and of 383* seems to imply that they had been intro- 
 duced before these dates. 5 But the passages here referred to 
 
 1 P. 64, 86 f. 2 P. 86 f. 
 
 8 V. 18. 1 f.; "P. Licinium Calvum praerogativa tribunum militum non petentem 
 creant . . . omnesque deinceps ex collegio eiusdem anni refici apparebat. . . . Qui 
 priusquam renuntiarentur iure vocatis tribubus. . . . Calvus ita verba fecit." We 
 might amend this evidently corrupt passage either by changing praerogativa to the 
 plural, as do Miiller (2d ed. 1888) and Weissenborn (8th ed. 1885), thus making it 
 refer to the equestrian centuriae. At the same time we might read iis revocatis 
 (scil. praerogativis). The passage would then apply to the Servian arrangement. 
 Or we could bring it to the support of the reformed order by reading creat (cf. 
 Madvig). The preferable interpretation of the qui priusquam . . . tribubus clause 
 seems to be " Before they could be declared elected on the official reports from the 
 tribes," the official reports being counted tribe by tribe, as will hereafter appear; 
 p. 225. See also on this passage, Pliiss, Centurienverf. 10 ff.; Lange, Rom. Alt. ii. 
 496. Here, as often elsewhere, Ullrich, Centuriatcom. 14, is wrong. But it is im- 
 possible to prove or to disprove anything by the emendation of such a passage. 
 
 4 VI. 21. 5 : " Omnes tribus bellum iusserunt." As the tribal assembly did not de- 
 clare war, this passage must refer to the reformed comitia (Lange, ibid.; Pliiss, ibid. 
 13), unless omnes tribus is carelessly used to designate the unanimous vote of the 
 populus Romanus. The assembly tributim mentioned by Livy vii. 16. 7 for the year 
 357 was tribal, not centuriate as Ullrich, ibid. 15, supposes. 
 
 6 In fact some scholars have assigned the reform to the decemvirs, 451; cf. Peter, 
 Epoch, d. Verfassungsgesch. 75 ; Soltau, Altrom. Volksversamml. 361 ff. 
 
ORGANIZATION OF COMITIA CENTURIATA 213 
 
 are uncertain; and at all events they belong to a period in 
 which the centuries may still have been closely connected with 
 the tribes. 1 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 2 ac- 
 count of the year 296 has reference to a feature of the old or- 
 ganization. This disposition of the three passages is supported 
 by the following consideration. Had the reform been intro- 
 duced 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) ; 3 and in that case all memory of the original Servian sys- 
 tem would have been lost. The circumstance that we are ac- 
 quainted with it in some detail is proof of its survival into the 
 third century b.c. In fact Livy's 4 chief reference to the reform 
 indicates that it was completed, if not undertaken, after the num- 
 ber 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. 5 The conten- 
 tion 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. 6 The censor 
 commonly assumed to be the author of the change is either 
 Fabius Buteo, 241, or Flaminius, 220. 7 Against the latter may 
 
 1 P. 77 (., 214. 
 
 5 X. 22. 1 : " Eumque et praerogativae et primo vocatae omnes centuriae." Prae- 
 rogativae refers to the equestrian centuriae and hence to the Servian organization. 
 It is hazardous, however, to make so much depend on a single letter ; should final t 
 be dropped from this adjective, the sentence would still read correctly. 
 
 8 P. 57 f., 66 f., 86 f. * I. 43- 12- 
 
 8 Cf. xxiv. 7. 12 (215 B.C.) : " Eo die cum sors praerogativae Aniensi iuniorum ex- 
 isset"; 9.3: "Praerogativae suffragium iniit . . . eosdem consules ceterae centu- 
 riae . . . dixerunt " ; xxvi. 22. 2 f. ; xxvii. 6. 3. 
 
 6 Livy xl. 51 is evidence that the censors had power to make changes as extensive 
 as these. 
 
 7 Mommsen, Rom. Trib. 108, preferred Fabius, and his view has been accepted by 
 Lange, Rom. Alt. ii. 499; Herzog, Rom. Staatsverf. i. 326; Kiibler, in Pauly-Wis- 
 sowa, Rtal-Encyd. iii. 1956; Le Tellier, Organ, cent. 75; Willems, Droit public 
 Rom. 93; Karlowa, Rom. Rechtsgesch. i. 384; and others. But in his Slaatsr. iii. 
 
214 THE ROMAN ASSEMBLIES 
 
 be urged the silence of Polybius x and Livy, 2 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. 3 
 
 A little reflection, however, will convince us of the impossi- 
 bility 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. 4 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, 5 who supposes the change to have come 
 about naturally with the increase in the number of tribes, and 
 of Dionysius, 6 who ascribes the innovation, or a part of it, to no 
 
 254, n. 4, 270, n. 3, following Gottling, Gesch. d. rb'm. Staatsvtrf. 383, he changes 
 his preference to Flaminius on the ground that the conflict between the patricians 
 and the plebeians continued to the war with Hannibal (Sail. Hist. i. 9. 11), ending, 
 as he supposes, in the opening of the six patrician centuries of knights to the plebeians 
 — a change which he connects with the reform under discussion. His reasoning as 
 to the date is not cogent, and is outweighed by the consideration given in the text. 
 
 1 II. 21. 
 
 2 XXI. 63; cf. Kiibler, in Pauly-Wissowa, Real-Encycl. iii. 1956. 
 
 8 Lange, Rom. Alt. ii. 499; Pliiss, Centurienverf. 10; Le Tellier, Organ, cent. 
 73 ff. 4 Guiraud, in Rev. hist, xvii (1881). 7. 
 
 5 I. 43. 12:" Nee mirari oportet hunc ordinem, qui nunc est post expletas quin- 
 que et triginta tribus duplicato earum numero centuriis iuniorum seniorumque, ad 
 institutam ab Serv. Tullio summam non convenire " (Nor need we be surprised that 
 the arrangement as it 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). 
 
 6 IV. 21. 3 : Ofrros 6 k6o>os tou TroXiTciJ/AaTos iwl fl-oXX&s diifieive yevebs <pv\a.Tr6- 
 ficvos uiri 'Pia/Aaluv iv Si rots Kafl" jjjuos KciclvriTat xp^pois Kal fi£TafHf}\r}Ktv els rb 
 SimoTiKi&repov, iviyxais rurl fiiatrBeh tox v P a "> °i> T &" ^X""' KOTaKvOivrur, dXX4 
 Tijs Kptffeus (or /cXiJcrews) atirSiv oiiciTt. rijv apxa.Lav &KpL(3eiav <pv\aTToi>ar]s, wy eyvtav 
 rats apxeu-pctrtcus airdv iroXXdfas irapibv. (After this arrangement had continued 
 many generations, carefully preserved by the Romans, it has assumed in our time a 
 
ORGANIZATION OF COMITIA CENTURIATA 215 
 
 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. 1 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 2 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. 8 The abolition 
 of the equestrian prerogative may likewise have been gradual ; 
 it may have been retained in one class of comitial acts — elec- 
 tions 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.* 
 As no description of the reformed organization has come 
 down to us, we are obliged to reconstruct it from the scant 
 
 more democratic character, driven into this new course by certain powerful forces. 
 The centuries were not abolished, but the decision of their votes has lost its former 
 carefulness — or we may read, the calling of the centuries no longer retains its 
 precise order. This fact, he tells us, he himself often noticed when present at 
 elections.) 
 
 If KpUrtaK, supported by most MSS., is retained, it should refer to the equalization 
 of power among the classes; icXi)<re(iis would probably mean that the prerogative cen- 
 tury was now drawn by lot. 
 
 1 P. 77 f- 
 
 2 Rom. Gesch. iii. 374 ff. 
 
 It is not improbable that the first step was the reduction of the first class to seventy 
 centuries, the ten centuries deducted being at the same time added to the lower 
 classes. This view will explain Cic. Rep. ii. 22. 39, which otherwise must be con- 
 sidered a mistake; p. 67, 205, n. 5. 
 
 8 P. 213, n. 5. 
 
 4 Ihne, Hist, of Rome, iv. 12, concludes that the change was gradual. The line of 
 development suggested by Pliiss, Ccnturicnvcrf., however, is ill supported by the 
 evidence. Guiraud, Rev. hist, xvii (1881). 1 ff., also accepts the view of a gradual 
 reform but minimizes its importance. 
 
216 THE ROMAN ASSEMBLIES 
 
 references of various writers. It is to be noted first that the 
 five classes continued in the new system. 1 They were still 
 based on the census, 2 and were called to vote in their order as 
 before. 3 The distinction between juniors and seniors was re- 
 tained; 4 and as these comitia were still called centuriata, the 
 centuries necessarily continued as the voting units. 6 But the 
 
 1 The citations below refer to a plurality of classes for the period following the 
 reform, without mentioning a definite number; Sail. lug. 86; Cic. Rep. iv. 2. 2; 
 Flacc. 7. 15; Red. ad Quir. 7. 17; Symmachus, Pro Patre, 7 (Seeck); Auson. 
 Grat. Act. iii. 13; ix. 44 (Peiper); p. 287, 293 (Bip.). In his speech for the 
 Voconian law, 169, the elder Cato, in Gell. vi. 13. 3, referred to the distinction be- 
 tween the classici and those who were infra classem, from which we may conclude 
 that the distinction existed in his time. The agrarian law of 1 1 1 ( CIL. i. 200. 37) 
 mentions the first class; also Livy xliii. 16. 14. The first and second are spoken of 
 by Cic. Phil. ii. 33. 82. Ullrich's view ( CenturiatcomJ), resting on these passages, 
 is that there were but two classes, one of seniors another of juniors. Besides involv- 
 ing many impossibilities, it is refuted by the frequent references to the continuance 
 of the census as an element in the system (see note below) and by the occasional 
 mention of the five classes. The latter number for the time of C. Gracchus is given 
 by Pseud. Sail. Rep. Ord. 2. 8. This work, though late, is generally considered good 
 authority ; cf. Greenidge, Hist, of Rome, i. 237 f. Five are mentioned also by Gell. 
 vi (vii). 13. I; Serv. in Aen. vii. 716; Arnob. Adv. Nat. ii. 67, with no definite 
 reference to a particular period. Cicero's allusion (Acad. Pr. ii. 23. 73) to the fifth 
 class implies at least that the five classes were then fresh in the memory. The 
 mention of an amplissimus census for the time of Cicero by Ascon. in Pis. 16, proves 
 the existence of more than two classes at the time. These citations, together with 
 the fact that no other definite number but five is ever spoken of by the ancient 
 writers, must lead to the conclusion that there was no change. 
 
 2 To the time of Marius the soldiers were still drawn from the census classes ; 
 Polyb. vi. 19. 2 ; Sail. lug. 86. The first class was distinguished from the rest by 
 its armor, Polyb. vi. 23. 15. That the political classes likewise rested on the census 
 is proved by Cic. Leg. iii. 3. 7 ; 19. 44; Gell. vi (vii). 13; xv. 27. 5; Ascon. in Pis. 
 16. The agrarian law of III (CIL. i. 200. 37) implies a property qualification of 
 the class mentioned (note above). These citations dispose of the hypothesis of Pliiss, 
 Centurienverf. 36 ff., 80, which represents the classes of this period as consisting of 
 groups of tribes resting partly on the census but mainly on differences of rank. 
 
 ■ Cic. Phil. ii. 33. 82; Livy xliii. 16. 14; Pseud. Sail. Rep. Ord. 2. 8; Val. Max. 
 vi. 5. 3; (Aurel. Vict.) Vir. III. 57. 3. 
 
 4 Livy i. 43. 12; xxiv. 7. 12; xxvi. 22. 2 f.; xxvii. 6. 3 (p. 213, n. 5 above); Cic. 
 Rep. iv. 2. 2; Verr. II. v. 15. 38: "Qui (praeco) te totiens seniorum iuniorumque 
 centuriis illo honore (praetorship) adfici pronuntiavit"; Har. Resp. 6. II; Leg. iii. 
 3. 7; Horace, Ars Poet. 341 : "Centuriae seniorum agitant expertia frugis." 
 
 6 Varro, L. L. vii. 42; Cic. Flacc. 7. 15; Suit. 32. 91; Tog. Cand. in Ascon. 85; 
 Red. in Sen. II. 27; Imp. Pomp. I. 2; Brut. 67. 237; Orat. ii. 64. 260; Ascon. 16, 
 95; Pseud. Sail. Rep. Ord. 2. 8; Livy i. 43. 12 f.; xxvi. 18. 9; 22. 4, 8, IO, 13; 
 xxvii. 21. 4; xxviii. 38. 6; xxix. 22. 9; xxxi. 6. 3; 7. 1; xxxvii. 47. 7; xliii. 16. 14, 
 16; Dion. Hal. iv. 21. 3; et passim. 
 
ORGANIZATION OF COMITIA CENTURIATA 217 
 
 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 1 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, 2 Voturia iuniorum, 3 Galeria iuniorum, 4 as well as by 
 those which in a more general way refer to voting or the an- 
 nouncement of the votes by or according to tribes in the centu- 
 riate assembly. 6 It accords perfectly with other evidence that 
 
 1 1. 43. 12 f. " Nee mirari oportet hunc ordinem, qui nunc est post expletas 
 quinque et triginta tribus duplicate earum numero centuriis iuniorum seniorumque, 
 ad institutam ab Servio Tullio summam non convenire. Quadrifariam enim urbe 
 clivisa . . .partes eas tribus appellavit . . . neque eae tribus ad centuriarum dis- 
 tributionem numerumque quicquam pertinuere." 
 
 2 Livy xxiv. 7.12. s Livy xxvi. 22. 2 f. 4 Livy xxvii. 6. 3. 
 
 6 Voting or the announcement of the votes according to tribes is indicated by 
 Polyb. vi. 14. 7 : Tots yap Bo.v6.tov icpivofitvoLs, iirav KctTadacdfarrcu Bldatri rijv 
 iHovirla.il rb trap' airoTs IsSos anaWirreffSai ipavepus, k&v en pla Xefirijrai <pv\ii rup 
 brLKvpomdv tt\v Kpltriv i\f/ri<p6pijT0S, iicoiffiov tavrov KarayvSura <pvyaoeLav. (To those 
 who are on trial for life, while the vote of condemnation is being taken, even if a 
 single tribe of those whose suffrages are needed to ratify the sentence has not voted, 
 the Roman custom grants permission to depart openly, condemning themselves to 
 voluntary exile.) This procedure must have been in the comitia centuriata, and 
 hence the votes of the centuries must have been taken or announced by tribes ; 
 cf. Klebs, in Zcitsckr. d. Savignyst. xii (1892). 220 ; Fluss, Centurienvcrf. 14. See 
 
218 THE ROMAN ASSEMBLIES 
 
 the century was an integral part of the tribe. 1 This is the 
 view adopted by Niebuhr. 2 It is open, however, to the fatal 
 objection of abolishing the classes, which in fact continued 
 through the republic, as has already been shown. 3 He does 
 indeed allow for a first class comprising the country tribes and 
 a second class made up of the others;* but this hypothesis is 
 
 also Cic. Leg. Agr. ii. 2. 4 : " Meis comitiis non tabellam vindicem tacitae libertatis, 
 sed vocem [unam] prae vobis indicem vestrarum erga me voluntatum ac studiorum 
 tulistis. Itaque me non extrema tribus (not diribitio) suffragiorum, sed primi illi 
 vestri concursus, neque singulae voces praeconum, sed una vox universi populi Ro- 
 mani consulem declaravit." The MSS. have tribus and there is nothing against it, 
 though Miiller, following Richter, has adopted diribitio for the Teubner text, 1896. 
 The meaning is " In my election you offered not merely the ballot, the vindication 
 of your silent liberty, but also your unanimous voice as evidence of your good will 
 to me and of your eagerness in my behalf. Hence it was not the last tribal group 
 of votes but your first coming together, not the single announcements of the criers 
 but the unanimous voice of the entire Roman people which declared me consul." 
 From this passage we may infer (1) that the votes were cast or announced by tribes, 
 (2) that the tribe cast more than one vote, (3) that the result was sometimes known 
 before the last tribe was reached. Cf. further Cic. Phil. vi. 5. 12; 6. 16; xi. 8. 18; 
 Livy v. 18. 2; vi. 21. 5; viii. 37. 12; xxix. 37. 13; ep. xlix; Oros. v. 7. 1; Lucan, 
 Phars. v. 391 ff.; Plut. Cat. Min. 42. 
 
 1 Cic. Plane. 20. 49 : " Unius tribus pars " (i.e. the prerogative century) ; 
 Pseudacr. Schol. Cruq. ad Hor. Poet. 341 : "Singulae tribus certas habebant cen- 
 turias seniorum et iuniorum"; Livy i. 43. 12 f. implies that the number of centuries 
 was a multiple of the number of tribes, in other words that the century was an 
 integral part of the tribe; cf.Q. Cic. Petit. 5. I7f.; 8.32; Mommsen, Rom. Trib. 74. 
 The most convincing evidence is that of inscriptions of the imperial period (p. 220) 
 which prove the urban tribes to have comprised each an integral number of centuries. 
 Mommsen, Rom. Staatsr. iii. 274, has therefore failed in his attempt to limit to the 
 first class the division of the tribes into centuries. 
 
 2 Rom. Gesch. iii. 382 f., followed by Pliiss, Centurienverf. 23 ff. Niebuhr places 
 the change in 304, when there were but thirty-one tribes, which would give for that 
 date but sixty-two half-tribe centuries. s P. 216. 
 
 4 Niebuhr, ibid. His authorities for the two classes are Livy xliii. 16. 14: " Cum 
 ex duodecim centuriis equitum octo censorem condemnassent rnultaeque aliae primae 
 classis"; Cic. Phil. ii. 33. 82: "Prima classis vocatur, renuntiatur ; deinde, ita ut 
 adsolet, suffragia ; turn secunda classis vocatur ; quae omnia sunt citius facta, quam 
 dixi. Confecto negotio bonus augur . . . alio die inquit"; cf. p. 113. In the 
 Livian citation, however, the mention of only the first class affords no hint as to the 
 number of classes to follow ; and the keen analysis of the Ciceronian passage made 
 by Huschke, Verf. des Serv. 615 and n. 8, proves confecto negotio to signify not 
 necessarily that the voting had been finished, but rather that the comitia had ad- 
 vanced so far as to preclude the obnuntiatio. It should be served before the assembly 
 convened, not after the meeting began (" Non comitiis habitis, sed priusquam ha- 
 beantur "; § 81). Confecto negotio, equivalent to comitiis habitis, is the negative of 
 
ORGANIZATION OF COMITIA CENTURIATA 219 
 
 overthrown by those citations which imply the continuance of 
 all five classes, 1 as well as by those which make the census an 
 element of the later organization. 2 Huschke, 3 who places the 
 reform in the earliest times of the republic, adopts Niebuhr's 
 view as to the number of centuries; but maintaining the con- 
 tinuance of the five classes, 4 he considers them to be groups of 
 tribes, the seventeen old rural tribes being distributed as fol- 
 lows : in the first class eight, in the second, third, and fourth 
 respectively two, in the fifth three. 6 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 re- 
 taining 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 in- 
 validated by the fact that the centuries continued to be divi- 
 sions of the classes, which were still called to vote in their 
 order. 6 
 
 The assumption of a diminution in number having proved 
 untenable, the conclusion is that there was an increase. 7 In 
 -view of the facts (1) that the reformed organization rested on a 
 tribal basis, 8 (2) that the centuries were divisions not only of the 
 tribes 9 but also of the classes, 10 (3) that the tribes could not have 
 been divisions of the classes, 11 it is necessary to conclude that the 
 -classes were themselves divisions of the tribes with the centuries 
 
 priusquam habeantur. This interpretation deprives the theory of two classes, held 
 by Niebuhr, Ullrich, and others, of its only support. 
 
 1 P. 216, n. I. 2 P. 216, n. 2. 3 Verf. des Scrv. 623. 4 Ibid. 617 ft. 
 
 6 Ibid. 634. Similar is the view of Pliiss, Centurienverf. 36 ff., 8o, that for the 
 period 179-86 the classes were groups of tribes based partly on the census and 
 partly on social rank. 
 
 6 P. 216, 11. 3. The long-known hypothesis here mentioned was sufficiently re- 
 futed by Huschke, ibid. 619 ff., but has been more recently revived by Madvig, Rom. 
 Slaat. i. 117 ff., who, however, so develops it as to make the five classes voting divi- 
 sions of the century. This notion is controverted by Genr, Centuriatcom. nach. der 
 Re/., and defended without success by Gerathewohl, Reit. und Rittercent. 90 f. 
 
 7 This result is in fact suggested by the passage in Livy I. 43. 12 f. (p. 217, n. 1); 
 it is not to be wondered at that an increase in the tribes should bring about an 
 increase in the centuries — a diminution in the centuries could not be spoken of 
 in the same way. 8 P. 217. 9 P. 218, u. I- 10 P. 216, n. 3. " If above. 
 
220 THE ROMAN ASSEMBLIES 
 
 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, 1 
 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, amount- 
 ing to a total of three hundred and seventy-three. This is 
 substantially the view of Pantagathus. 2 Convincing evidence 
 is afforded by a group of inscriptions of the imperial period. 3 
 From them we learn that under the emperors the urban tribes 
 comprised severally (i) a corpus seniorum, (2) a corpus iunio- 
 rum, (3) the tribus Sucusana a corpus Iulianum, and the Palatine 
 and Esquiline each a corpus Augustale. Every corpus con- 
 sisted 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. 4 
 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 
 
 1 P. 216, n. 4. 
 
 2 A monk who lived 1494-1567. For his view see Drackenborch's commentary 
 on Livy i. 43. To the 350 centuries of juniors and seniors he added 35 or 70 
 centuries of knights and a century of proletarians, making =■ total of 386 or 421 
 respectively. No scholar now holds to more than 18 equestrian centuries. With 
 this and a few other variations as to supernumerary centuries his view has been 
 adopted by Savigny, Vermischte Schriflen, i. I ff. ; Mommsen, Rom. Trib. ; Genz, 
 Centuriatcom. nachdcrRcf; Ihne, Hist, of Rome, iv. 15 ; Herzog, Rom. Staatsverf. 
 i. 324; Klebs,]in Zeitschr. d. Savignyst. xii (1892). 181-244; Schiller, Rom. Alt. 
 633 ; Kiibler, in Pauly-Wissowa, Real-Encycl. iii. 1956 ff. ; Greenidge, Rom. Publ. 
 Life, 253 ; Le Tellier, Organ, cent. 89 ff. ; Gottling, Gesch. der rom. Staatsverf. 383 ; 
 Peter, Epoch, d. Verfassungsgesch. 75 ; Morlot, Cornices elect. 85 ff. 
 
 8 CIL. vi. 196-8, 1 104, 10097, 10214-8; Inscr. bull, della comm. di Roma, 1885. 
 161 ; Notizie degli Scavi, 1887. 191. 
 
 4 There must have been in the reformed comitia two curators from each class for 
 every tribe. This connection with the classes was wrongly transferred to the tribunes 
 of the plebs by Livy iii. 30. 7 ; Ascon. 76. 
 
ORGANIZATION OF COMITIA CENTURIATA 221 
 
 corpus as it must have stood in the period immediately follow- 
 ing the reform. This result confirms the view suggested by 
 Pantagathus. 
 
 It was accepted by Mommsen in his Romische Tribus (1844) 
 and in the first seven editions of his History of Rome ; but in 
 his Romisches Staatsreckt 1 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 x 2 = 70 centuries, each with 
 one vote, whereas the remaining classes together, made up of 
 4x35 X 2 = 280 centuries, cast but 100 votes. How the centu- 
 ries 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 compo- 
 nent centuries, for according to the theory some groups com 
 prised 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 organiza- 
 tion given in Cicero's Republic? which speaks of a hundred and 
 ninety-three centuries, and which Mommsen 3 believes to be a 
 description of the reformed organization. Cicero's 4 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 5 are the chief points in 
 Mommsen's favor. Against his interpretation it may be urged 
 
 1 III. 274 ff.; cf. his History of Rome (Eng. ed. 1900), iii. 52 f. 2 II. 22. 
 
 8 Rom, Staatsr. iii. 274 with notes ; cf. Guiraud, in Rev. hist, xvii (1881). 16. 
 
 4 Rep. ii. 22. 39 : "Quae discriptio, si esset ignota vobis, explicaretur a me; nunc 
 rationem videtis esse talem." 
 
 6 Seventy in Cicero's description, eighty according to the annalists ; p. 67 I., 
 205, 11. 5. 
 
222 THE ROMAN ASSEMBLIES 
 
 (i) that the passage is exceedingly uncertain; 1 (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, 2 being in this 
 case especially liable to error because in the reformed organiza- 
 tion 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 (») 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, 3 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 unnat- 
 ural to commend itself to the understanding. Apart from its 
 lack of support in the sources, an objection to the theory is 
 
 1 It is unnecessary here to enter into the controversy regarding the text. Evidently 
 the second hand has drawn from a reliable source (Klebs, ibid. 200-210); yet in 
 view of its uncertainty the passage should not be made the foundation of a theory 
 so thoroughly objectionable as Mommsen's. 
 
 2 To Soltau, Jahrb. f. cl. Philol. xli (1895). 4 XI > n> 3> ""s explanation seems "too 
 cheap.'' 
 
 8 In the clause " Ut equitum centuriae cum sex suffragiis et prima classis addita 
 centuria, quae . . data, LXXXVIIII centuriae habeat," centuriae applies to the 
 centuries proper, but in the clause immediately following, " Quibus ex centum quat- 
 tuor centuriis (tot enim reliquae sunt) octo solae accesserunt," the word on Momm- 
 sen's supposition must denote not the centuries themselves but the voting groups of 
 centuries. Though Mommsen usually avoids the application of the term century to 
 the assumed voting units, he allows himself to do so on p. 274 and in n. 2. Granting 
 that in this instance he has used the word correctly, we should have the first class 
 composed of simple centuries and the others of centuries which were themselves 
 composed of centuries — an evidently absurd result of his assumption. 
 
ORGANIZATION OF COMITIA CENTURIATA 
 
 223 
 
 its extreme impracticability. Holding that juniors and seniors 
 could not have been brought together in the same voting divi- 
 sions, 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 two . . 
 27 in groups of three . 
 
 35 of juniors 
 
 33 in groups of three . 
 Total 
 
 4 votes 
 
 9 votes 
 
 13 votes 
 
 1 vote 
 
 11 votes 
 
 12 votes 
 
 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 
 
 I93 1 
 
 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 num- 
 bers 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 
 
 1 Klebs, in Zeitschr. d. Savignyst. xii (1892). 197. Not less complicated is Le 
 Tellier's supposition {Organ, cent. 88, n. 1) that the four classes may have differed 
 in number of votes (for example, 30, 28, 28, 14), and that the several voting groups 
 of a class comprised the same number of centuries, in some cases with a fraction of a 
 century, e.g., 2, 2J, 2$, 5 centuries for the four classes respectively. This combination 
 would be as undemocratic and as impracticable as any of those proposed by Klebs. 
 
224 THE ROMAN ASSEMBLIES 
 
 more clearly than ever the inequality of rights in the comitia, 1 
 and therefore could not have been called democratic by Diony- 
 sius. 2 It is contradicted also by Livy, 3 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, 4 and is refuted by 
 the many citations which assume the voting or the announce- 
 ment of the votes to have proceeded according to tribes 6 as well 
 as according to classes. 6 
 
 Lange, 7 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, sev- 
 erally 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. 8 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. 9 This view as to the announce- 
 ment is contradicted by the sources, 10 which clearly imply that 
 
 1 Klebs, ibid. 187. 2 P. 214, n. 6. 
 
 8 I. 43. 12. * P. 220. 6 P. 217. 
 
 6 P. 216, n. 3. Soltau's modifications, Jahrb. f. Philol. xli (1895). 410-4, of 
 Mommsen's hypothesis are no improvement on the original. 
 
 7 Rom. Alt. ii. 510 ff. 
 
 8 In this way the prerogative century, after serving as an omen (Cic. Mur. 18. 39), 
 would be joined with four others of the same half-tribe. 
 
 9 Lange, Rom. Alt. ii. 526. 
 
 10 Livy xliii. 16. 14 (171 B.C. ) : "Cum ex duodecim centuriis equitum octo cen- 
 sorem condemnassent multaeque aliae primae classis, extemplo principes civitatis 
 . . . vestem mutarunt." This proves that the votes were made public early in 
 
ORGANIZATION OF COMITIA CENTURIATA 225 
 
 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 opinjon cast one vote in the closing 
 announcement, 1 as well as (2) the fact that the sources give 
 more than six votes to the equites in the late republic. 2 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. 3 
 
 A solution of the problem as to the order of voting suggested 
 by Klebs 4 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; 5 and 
 a second announcement, made in that order, decided the elec- 
 tion or other act of the people. Each candidate was declared 
 elected when a majority of votes was reached in his favor. 
 
 the course of the voting, though not necessarily before the second class began; 
 cf. Cic. Phil. ii. 33. 82. Lange too hastily rejects the evidence of these two pas- 
 sages. The vote of each century was announced separately; Varro, L. L. vii. 
 42: "Quod . . . comitiis cum recitatur a praecone dicitur olla centuria," which 
 would not be true, if, as Lange supposes, the announcement was by tribal groups 
 of five. 
 
 1 Cf. Gerathewohl, Reit. und Ritttrcent. 90, n. 2. 
 
 2 As authority for the six votes of the eighteen equestrian centuries Lange cites 
 Cic. Rep. ii. 22. 39: "Equitum centuriae cum sex suffragiis"; Phil. ii. 33. 82; 
 "Prima classis vocatur, renuntiatur; deinde, ita ut adsolet, suffragia." So far as 
 these two passages are concerned, Lange could be right; but his view is contradicted 
 by Festus 334. 29 (" Sex suffragia appellantur in equitum centuriis, quae sunt 
 adiecta — MS. adfectae — ei numero centuriarum, quas Priscus Tarquinius rex 
 constituit"), which distinguishes the sex suffragia from the remaining centuries 
 of cavalry, and by Livy xliii. 16. 14, which gives each century a vote. 
 
 "AH the tribes voted; Livy vi. 21. 5 (a historical anticipation but useful for 
 showing later custom); viii. 37. 12; xxix. 37. 13 f.; ep. xlix; Val. Max. ix. 10. I. 
 All the centuries voted; Livy xxiv. 9. 3; xxvi. 18. 9; 22. 13; xxvii. 21. 4; xxviii. 
 38. 6; xxix. 22. 5; xxxi. 6. 3; Cic. Sull. 32. 91; Pis. 1. 2; Imp. Pomp. 1. 2. 
 
 4 In Zeitschr. d. Savignyst. xii (1892). 230 ff. 
 
 6 Lucan v. 392 ff. : 
 
 " Fingit solemnia campi 
 
 Et non admissae diribet suffragia plebis 
 
 Decantatque tribus et vana versat in urna." 
 
 These verses picture a sham election held by Caesar in 49; he pretends to hold 
 comitia, counts the votes of the plebs, who are not really permitted to be present, 
 calls off the tribes, and draws lots for them from the empty urn. 
 Q 
 
226 THE ROMAN ASSEMBLIES 
 
 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, 1 however, speaks of a single century 
 of artisans for his time. The two industrial colleges, which 
 had existed from an early age, 2 seem to have been joined 
 in one and to have continued into the imperial period after 
 nearly all the other guilds had been abolished. 3 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 4 and 
 were probably given one vote. The accensi velati, too, formed 
 a college composed of wealthy freedmen, freeborn, and even 
 knights. 5 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, 6 which were as 
 necessary after the reform as before it. 7 Although new cen- 
 turies were added, possibly by the later republican censors 
 and certainly by the emperors, 8 the principle of the reformed 
 organization remained unchanged. 9 
 
 In the reformed assembly the equestrian centuries ceased to 
 
 1 Or at. 46. 156: "Centuriam, ut Censoriae Tabulae loquuntur, fabrum audeo 
 dicere, non fabrorum." Cicero seems to refer to recent Tabulae Censoriae; though 
 he might quote ancient poets, he was not the man to ransack old documents even 
 to learn the ancient usage of words. 
 
 2 Plut. Num. 17; Pliny, N. H. xxxiv. I. I. 
 
 3 Ascon. 75 : " Postea collegia S. C. et pluribus legibus sunt sublata praeter 
 pauca atque certa, quae utilitas civitatis desiderasset, qualia sunt (MS. quasi, ut) 
 fabrorum fictorumque." 
 
 4 P. 207, n. I. 
 
 6 See citations in Olcott, Thes. ling. lag. ep. i. 51. 
 
 6 P. 208 f. 
 
 7 That these supernumerary centuries were abolished at the time of the reform 
 is argued by Huschke, Verf. des. Serv. 622 f.; Pliiss, Cenlurienverf. 28, 34; Genz, 
 Centuriatcom. nach der Ref. 12; Klebs, in Zeitschr. d. Savignyst. xii. 218. That 
 they continued in the new system is the belief of Mommsen, Rom. Staatsr. iii. 
 281 ff. ; Lange, Rom. Alt. ii. 512; Le Tellier, Organ, cent. 90. 
 
 8 P. 220 f. 
 
 9 The supposed Sullan reaction to the earlier form of the centuriate comitia is 
 not well founded; p. 406. 
 
ORGANIZATION OF COMITIA CENTURIATA 227 
 
 be prerogative. 1 A century was drawn from the first class 2 by 
 lot 3 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 ; * and 
 the sex suffragia, no longer exclusively patrician, 5 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 super- 
 numerary 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. 6 
 
 I. The Earlier Organization: the literature on this subject is essen- 
 tially the same as for ch. iv. 
 
 II. The Reform : Schulze, C. F., Volksversamml. der Rbmer, 69 ff. ; 
 Huschke, Ph. E., Verfass. des Konigs Servius Tullius, ch. xii; Peter, C, 
 Epochen der Verfassungsgcsch. der ront. Republik, 42 ff. ; Savigny, F. C, 
 Verbindung der Centurien mil den Tribus, in Vermischte Sckriften, i. 1-13; 
 for other early literature, see Lange, Rom. Alt. ii. 495 ff., notes ; Neumann, 
 
 1 P. 212. 
 
 2 P. 217. This is a necessary inference from the term used to describe a preroga- 
 tive centuria, e.g., Aniensis iuniorum. Had the drawing been from a group of classes, 
 the number of the class would have been added, e.g., Aniensis iuniorum sccundae 
 classis. 8 Cic. Phil. ii. 33. 82. 
 
 4 Livy xliii. 16. 14: "Cum ex duodecim centuriis equitum octo censorem condem- 
 nassent multaeque aliae primae classis " (171 B.C.). This passage proves that the 
 announcement distinguished the votes of the twelve equestrian centuries both from 
 the sex suffragia and from those of the class. Cic. Phil. ii. 33. 82 : " Sortitio prae- 
 rogativae; quiescit. Renuntiatur; tacet. Prima classis vocatur, renuntiatur; deinde, 
 ita ut adsolet, suffragia; turn secunda classis vocatur.'' Here Cicero informs us that 
 the (sex) suffragia were announced after the report of the first class had been given. 
 The circumstance that he does not mention the separate calling of the suffragia indi- 
 cates that their separation from the first class was limited to the announcement. 
 There is no reason why the Romans should have added to the length of the centu- 
 riate sessions by assigning a part of the day to the exclusive use of these six centuries. 
 Livy, i. 43. 8 f., has their inferiority in mind. It is unnecessary to amend the Cicero- 
 nian passage. The attempt of Holzapfel, in Beitrage zur alien Gesch. i (1902). 
 254 {., is unsuccessful. Klebs, in Zeitschr. d. Savignyst. xii (1892). 237 ff., fruitlessly 
 opposes the division of the equites into these two groups. 
 
 6 P. 74 f., 95 f., 209 f. • P. 21 1, 467, 469. 
 
228 THE ROMAN ASSEMBLIES 
 
 C, Zeitalter der punischen Kriege, 187 ff. ; Nitzsch, K. W., Gesch. der rom. 
 Republik, i. 146 f. ; Mommsen, Rom. Tribus, 66-113, 143-149; Rom. Staatsr. 
 iii. 269 ff. ; Lange, L,., De magistratuum romanorum renuntiatione et de cen- 
 turiatorum comitiorum forma recentiore, in Kleine Schriften, ii. 463-493 ; 
 Rom. Alt. ii. 494-516; Madvig, J. N., Verfass. und Verw. des rom. Staates, 
 i. 117-23; Herzog, E., Rom. 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 Remains, i. 46-8 ; Greenidge, A. H. J., Roman 
 Public Life, 252 f. ; Abbott, F. F., Roman Political Institutions, 74-6 ; 
 Karlowa, O., Rom. Rechtsgesch. i. 384-8 ; Soltau, W., Altrbm. Volksver- 
 samml. 358-71 ; Cicero de Re Publica und die servianische Centurienord- 
 nung, in Jahrb. f. Philol. xli (1895). 410-4; Kappeyne Van de Coppello, 
 J., Comitien, 20 ff. ; Morlot, E., Cornices llectoraux sous la republique Rom. 
 ch. v ; Goguet, R., Centuries, ch. iv ; Le Tellier, M., V organisation centuri- 
 ate, ch. ii; Hallays, A., Cornices a Rome, 25-31 ; Pluss, H. T., Entwick. der 
 Centurienverfass. ; Ullrich, J., Centuriatcomitien ; Clason, O., Zur Frage uber 
 die reformierte Centurienverfass. in Heidelb. Jahrb. lxv (1872). 221-37; 
 Ritschl, F. W., Opuscula Philologica, iii. 637-73 ; Genz, H., Centuriat-Comi- 
 tien nach der Reform ; Guiraud, P., De la Reforme des Cornices centuriates au 
 III Siecle av.J.-C. in Rev. hist, xvii (1881). 1-24; Klebs, E., Stimmenzahl 
 und Abslimmungsordnung der ref. servianischen Verf, in Zeitschr. d. Savigny- 
 stift. f. Rechtsgesch. Rom. Abt. xii (1892). 181-244; Meyer, E., Die ange- 
 bliche Centurienreform Sullas, in Hermes, xxxiiii (1898). 652-4; Humbert, 
 G., in Daremberg et Saglio, Diet. ii. 1389 f. ; Kubler, 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, 1 
 -who has certainly placed the beginning of its functions at the 
 earliest possible date, 2 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 prae- 
 tors, increased gradually from one in 366 to sixteen under 
 Caesar. 8 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 magis- 
 tracies 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, 
 
 1 P. 201, n. 2. 
 
 2 The idea that Servius Tullius gave this assembly the right to elect kings (Dion. 
 Hal. v. 12. 3; Lange, Rom. Alt. i. 458 ; ii. S31) is proved wrong by the circum- 
 stance that the organization attributed to him was purely military, from which the 
 comitia centuriata slowly developed ; p. 203 ff. 
 
 8 Lange, Rom. Alt. ii. 531. On the number of praetors, see Mommsen, Rom. 
 Staatsr. ii. 202. The election of a centurion to the function of dedicating a temple 
 (Livy ii. 27. 6) in the period before the first secession Lange (ibid. i. 917 ; ii. 532) 
 -with good reason considers a myth. It is doubtful, however, whether he is right in 
 viewing as historical the so-called lex Valeria de candidatis, assigned to the first year 
 of the republic (Plut. Popl. 11 ; Lange, ibid. ii. 532), which ordered the presiding 
 magistrate to accept as candidates all qualified patricians who offered themselves for 
 the consulship — a principle said to have been afterward applied to other patrician 
 offices. 
 
 229 
 
230 THE ROMAN ASSEMBLIES 
 
 was deprived of all vitality by the Maenian plebiscite, 1 which 
 required the act to be passed before the election while the issue 
 was uncertain. 2 The date of this plebiscite is unknown ; but it 
 probably followed close upon the Hortensian legislation (287). 3 
 
 II. Legislative 
 
 In an earlier chapter 4 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. 5 Even the decla- 
 ration 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. 6 
 It seems probable therefore that this question came, not before 
 the comitia, but before a military contio. 7 From the custom of 
 the soldiers to participate in the settlement of questions touch- 
 ing their interests 8 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,* against 
 Veii, 482, 10 and against the Aequians and Volscians in 462. 11 
 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. 32 For the next hundred years mention is often 
 
 1 P- 331. 
 
 2 Cic. Brut. 14. 55; cf. Lange, Rom. Alt. i. 409; ii. 115, 532. 
 
 8 On the centuriate elective function in general, see Lange, ibid. ii. 531—3. 
 Willems, Sen. Rom. ii. 69 ff., contends unconvincingly that the Maenian statute 
 should be assigned to 338. 4 P. 177. » p. 181 f, 
 
 6 P. 177. 1 P. 177. 8 P. 202 f. ; cf. Lange, Rom. Alt. ii. 599 f. 
 
 9 Dion. Hal. viii. 15. 3. *> VIII. 91. 4. "■ IX. 69. 2. 12 Livy iv. 30. 15. 
 
FUNCTIONS OF THE CENTURIES 231 
 
 made of the exercise of this function by the people ; 1 and when 
 a declaration was once issued by them, it could be recalled only 
 by their vote. 2 During the period of the Samnite wars the 
 assembly still more frequently made use of this right. 3 In 
 better known times we find it firmly established. The people 
 declared war against Carthage in 264,* against the Illyrians in 
 229, 5 against Carthage again in 218, 6 against Macedon in 200, 7 
 against Antiochus in 191, 8 against Macedon again in 171, 9 
 against Jugurtha in in. 10 In the case of the two Macedonian 
 wars here referred to, the declaration is mentioned as an act of 
 the comitia centuriata. 11 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 ; 12 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. 13 We conclude, however, that the charge was 
 fruitless from the circumstance that the senate finally decreed 
 him a triumph. 14 For beginning war against the Histrians on 
 his own responsibility the consul A. Manlius, 178, was threat- 
 ened with a prosecution, which was quashed by a tribunician 
 veto. 15 Licinius Lucullus was not even brought to trial for the 
 war he waged without an order of the people against the Vac- 
 caei in 151. 16 Hence it appears that though a magistrate could 
 not legally begin war on his own initiative, there was no real 
 
 1 Livy iv. 58. 8, 14; 60. 9 (406); vi. 21. 3 (383) 22. 4 (382); vii. 6. 7 (362); 
 12. 6 (358); 19. 10 (353); 32. 1 (343). 2 Livy vii. 20. 3. 
 
 8 Livy viii. 22. 8 (327); 25. 2 with Dion. Hal. xv. 14 (326); Livy viii. 29. 6 
 (325); ix. 43. 2 (306); 45. 8 (304); x. 12. 3 (298); 45. 6 f. (293). 
 
 4 Polyb. i. 11. 6 Dio Cass. Frag. 49. 5; Zon. viii. 19. 4. 6 Livy xxi. 17. 4. 
 
 7 Livy xxxi. 5-8; especially 6. I, 3 ; 7. 1. 8 Livy xxxvi. I. 4 f.j *. 2 f. 
 
 8 Livy xlii. 30. 10 f.; 36. 2. 10 Oros. v. 15. 1 : "Consensu populi." 
 n Livy xxxi. 6. 3; 7. 1; xlii. 30. 10; cf. 36. I. 
 
 n Livy xlv. 21 ; Polyb. xxx. 4. 4 ff. 
 
 18 Livy xxx viii. 42. 11 ; 45. 4 ff. M Livy xxxviii. 50. 3. 
 
 16 Livy xli. 6; 7. 8; cf. Mommsen, R'dm. Staatsr. ii. 320, u. 3. 
 
 16 Appian, Iber. 51, 55. The condemnation of M. Aemilius Lepidus, proconsul in 
 136, to a fine by a judgment of the people seems to have been more for the failure of 
 his war upon the same state than for beginning it without authorization; Appian, 
 Jber. 80-82; Livy, ep. lvi; Oros. v. 5. 14. 
 
232 THE ROMAN ASSEMBLIES 
 
 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. 1 One case of rejection 
 is recorded, and even here the centuries at a second session 
 obediently accepted the consul's proposition. 2 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, how- 
 ever, 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." 3 
 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. 4 
 
 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 occasion- 
 ally have passed resolutions affecting the status of citizens. 5 
 But as legislation never became an acknowledged function of 
 the curiae, we are in a position to assert that through the comi- 
 tia centuriata the people were first introduced into this sphere 
 of public life. 6 
 
 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 
 
 1 Livy iv. 58. 14. 
 
 2 This is the Macedonian war beginning in 200; p. 231 ; cf. Lange, Rom. Alt. ii. 
 602. 'P. 176; Gell. xvi. 4. 1 ; Livy xxxvi. 2. 2. 
 
 * Dio Cass, xxxviii. 41. 1 ff.; Cic. Pis. 21. 48 f. 
 
 6 E.g., the act which recalled Camillus from exile; Livy v. 46. 10; xxii. 14. 11; 
 Cic. Dom. 32. 86. 6 P. 181 f. 
 
FUNCTIONS OF THE CENTURIES 233 
 
 year of the republic, 509. 1 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. 2 The third 
 Valerian law of appeal in 300 3 was an act of the same assembly, 
 whereas all three Porcian laws on the same subject seem to 
 have been tribal. 4 The legislative function of the centuriate 
 assembly, resting in the pre-decemviral period simply on prece- 
 dent, brought into being the statute of 471 to establish a tribal 
 assembly for the transaction of plebeian business, improperly 
 known as the Publilian law, 5 the lex sacrata for the division of 
 the Aventine among the plebeians, erroneously termed Icilian, 
 456,® the lex Aternia Tarpeia de multae dictione, 4S4, 7 the lex 
 Menenia Sextia on the same subjects in 452, 8 the laws ratifying 
 the Twelve Tables in 45 1, 449 s — all excepting the second having 
 reference to the limitation of the magisterial power. Regard- 
 ing 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, 10 and of the decem- 
 viri legibus scribundis, which should be named Sestian after 
 the consul who undoubtedly proposed it, 452. 11 Thus far popu- 
 lar legislation had no basis excepting precedent, but a law of 
 the Twelve Tables now provided that there should be resolu- 
 
 1 P. 201, 240. 2 Livy iii. 55. 4; Cic. Rep. ii. 31. 54. 
 
 8 Livy x. 9. 5 ; cf. p. 242 below. 4 P. 250 f. 349. 
 
 6 P. 270 f. 6 P. 272. 7 P. 269. 
 
 8 Fest. 237. 17; Lange, Rom. Alt. i. 622; ii. 603. The contents are unknown. 
 
 9 Livy iii. 34. 6. Doubt has been thrown on the early date of the Twelve Tables 
 by Pais, Storia di Roma, I. i. 558-606, and on their official character as well by 
 Lambert, La question de I' autkenticite des XII Tables et les annates maximi ; L'his- 
 toire traditionelle des XII Tables et les criteres d' inautkenticite des traditions en usage 
 dans Vecole de Mommsen in Melanges Ch. Appleton, 503-626; La fonction du droit 
 civil compare, 390-718 ; Le probleme de I'origine des XII Tables, in Revue generate 
 de droit, 1902. 385 ff., 481 ff. Their views are controverted by Greenidge, in Eng. 
 Hist. Rev. xx (1905). 1-21. For other literature on the subject, see Jahresb. ii. 
 Altwiss. cxxxiv (1907). 17 ff. 
 
 According to Diod. xii. 26. I, the last two tables were drawn up by Valerius and 
 Horatius, consuls in 449. 
 
 10 Livy ii. 18. 5; Dion. Hal. v. 70. 5; Lange, Rom. Alt. i. 585; ii. 603. Dion. 
 Hal. vi. 90. 2, assumes the enactment of a statute for the creation of the plebeian 
 tribunate, 494. n Livy iii. 33. 4; Dion. Hal. x. 55. 3 (cf. p. 273). 
 
234 THE ROMAN ASSEMBLIES 
 
 tions 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, pre- 
 vailed over every other authority. 1 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, 2 the lex Iulia Papiria de multarum aesti- 
 matione, 430, 3 the law for the election of six military tribunes by 
 the comitia tributa, 362,* the law of the dictator Publilius Philo, 
 339, 5 the third Valerian law concerning appeal, 300, 6 and finally 
 the Hortensian law, 2%y? 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 con- 
 sular power, 44s, 8 and censors, 443 9 (or 435?), for increasing 
 the number of quaestors, 42 1, 10 for instituting the praetorship, 
 367, 11 and the curule aedileship in the same year. 12 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 Vale- 
 rian law of 342, (1) that the name of no soldier should be erased 
 
 1 Livy vii. 17. 12 : "In Duodecim Tabulis legem esse, ut, quodcumque postremum 
 populus iussisset, id ius ratumque esset ; iussum populi et suffragia esse." After 
 the decemviral legislation an attempt was made to extend the principle to elections, 
 as in the case here mentioned by Livy. * P. 274 ff. 8 P. 287. 
 
 4 Livy vii. 5. 9; Sail. lug. 63; Cic. Cluent. 54. 148; Leg. iii. 3. 6; Lange, Rom. 
 Alt. ii. 25, 604. It is only an inference that this important constitutional change was 
 brought about by the centuries rather than by the tribes. 
 
 6 P. 299 f. 6 P. 233, 241 f. ' P. 313. 
 
 8 Livy iv. 6. 8. A law is not mentioned but must be inferred ; Lange, Rom. Alt. 
 i. 650; ii. 603. 
 
 9 Livy ix. 34. 7: " Illi antiquae (legi), qua primum censores creati sunt"; cf. 
 Lange, ibid. i. 664. In 433 a law, doubtless centuriate, of the dictator Mam. Aemil- 
 ius cut down the term of the censors to eighteen months ; Livy iv. 24. 5 f.; ix. 33. 
 6 ; ch. 34. 
 
 10 Livy iv. 43; Tac. Ann. xi. 22; cf. Lange, ibid. i. 666. ll Livy vi. 42. 11. 
 
 12 Ibid. § 13. The laws last named, relating to the quaestorship, praetorship, and 
 aedileship, are not mentioned by the ancient authorities but are necessarily assumed; 
 Lange, Rom. Alt. i. 476, 479. 
 
FUNCTIONS OF THE CENTURIES 235 
 
 from the muster roll without his consent, (2) that no military- 
 tribune should be degraded to the rank of centurion, 1 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, 2 if indeed it is 
 historical, was administrative, and is considered therefore in 
 another connection. 3 Of the same nature, though less sweep- 
 ing, 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. 4 The effect was to free centuriate legisla- 
 tion from the constitutional control hitherto exercised by patri- 
 cian senators. 6 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 patri- 
 cians of an important power, whereas the senate as a whole 
 continued through its consulta to exercise an increasing influ- 
 ence 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 
 
 1 Livy vii. 41. 4. 2 Appian, Samn. i. 3; cf. p. 298. 8 P. 238. 
 
 4 Livy viii. 12. 15; cf. i. 17. 9. The auctoritas applied to comitia curiata as well 
 as centuriata ; Cic.Dom. 14. 38; Livy vi. 41. 10. On the comitia tributa, see p. 314. 
 
 6 The view maintained by Willems, Sen. Rom. ii. 33 ff., that the patres auctores 
 were all the senators, not merely the patrician members, is disproved by Cic. Dom. 
 14. 38 (Should the patriciate become extinct, there would no longer be " auctores 
 centuriatorum et curiatorum comitiorum "). In spite of some looseness of statement 
 in the passage cited, there seems to be no good ground for considering either the 
 whole oration spurious or the particular reference to the auctoritas inaccurate. The 
 question, too complex for detailed treatment in this volume, is of practical impor- 
 tance for the period only from about 400 to 339. 
 
236 THE ROMAN ASSEMBLIES 
 
 by this provision; for another article of the same statute, con- 
 firming 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 cen- 
 turies, 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. 1 In Sulla's 
 time the lex Valeria, 82, 2 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 cen- 
 turies, as it was not only passed through intimidation and under 
 a magistrate who had no constitutional right to initiate legisla- 
 tion, but it also created a legalized tyranny destructive of popu- 
 lar freedom. 3 In the words of Cicero it was the most iniquitous 
 of all laws and most unlike a law. 4 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. 5 Probably all his other laws were 
 ratified by the tribes. 6 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. 7 
 
 Sulla's constitutional legislation curtailed the powers of the 
 plebeian tribunes and of their assembly, proportionally increas- 
 
 1 Lange, Rom. Alt. ii. 605 f. 2 p, 412. 
 
 8 Lange, Rom. Alt. i. 553 ; ii. 606. 
 
 4 Leg. Agr. iii. 2. 5; cf. Leg. i. 15. 42; Rose. Am. 43. 125; Schol. Gron. 435; 
 Appian, B. C. i. 98. 458 ff.; Plut. Sull. 33. 
 
 5 C | c - Dom - 30. 79; Caecin. 33. 95; 35. 102. 6 p. 4 , 6) n . , 
 
 7 Cic. Phil. i. 8. 19 obscurely suggests that these two laws were centuriate, though 
 Lange, Rom. Alt. ii. 606, doubts it ; cf. p. 455. 
 
FUNCTIONS OF THE CENTURIES 237 
 
 ing 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. 1 To this assembly accordingly belong 
 the leges Vibiae of the consul C. Vibius Pansa, 43, which con- 
 firmed the acts of Caesar, and took the place of Antony's leges 
 de coloniis deducendis and of his lex de dictatura tollenda. 2 
 
 On the institution of the censorship, and by the law which 
 called the office into being.it was enacted that elections of cen- 
 sors should be ratified, not by the curiae as in the case of other 
 magistrates, but by the centuries themselves. 3 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. 4 As the primary function of the censors was the periodi- 
 cal reconstitution of the comitia centuriata, it was doubtless 
 thought appropriate that this assembly alone should be con- 
 cerned with the election. The lex centuriata de potestate cen- 
 soria, 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, 6 and the 
 lex Publilia Philonis, 339, which provided that at least one cen- 
 sor must be a plebeian, 6 were centuriate, whereas the Licinian- 
 Sextian law, 367, which provided that one consul must be a 
 
 1 Cf. Appian, B. C. Hi. 30. 117. 
 
 2 Cic. Phil. x. 8. 17; xiii. 15. 31; cf. v. 19. 53. 
 
 8 Cic. Leg. Agr. ii. II. 26: "Centuriata lex censoribus ferebatur." 
 
 * P. 185. Before the institution of the censorship the original motive of the sanc- 
 tioning act — to leave the curiae a share in the elective function — must have given 
 way to the purpose stated by Cicero and represented here in the text. 
 
 6 Livy iv. 24. 3 ff. ; cf. ix. 33 f. 
 
 6 Livy viii. 12. 16; cf. p. 300. Livy's words referring to the censorship are corrupt, 
 but the passage seems to have the meaning here given ; cf. Mommsen, Rom. Staatsr. 
 ii. 340, n. 2. It was not till 131 that advantage was taken of the provision; Livy, 
 ep. lix. Herzog, Rom. Staatsverf. i. 257, refuses to believe that both censors might 
 now be plebeian. 
 
238 THE ROMAN ASSEMBLIES 
 
 plebeian, 1 and the Genucian law, 342, permitting both to be, 2 
 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, 3 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 expi- 
 ration 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. 4 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. 5 It was forced upon the government by the 
 plebeians, and did not serve as a precedent for the future. The 
 Valerian law of 342 , 6 which abolished debts, was an extraordi- 
 nary 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/ and the ancient law composed in 
 archaic letters, mentioned in connection with the year 363, 8 re- 
 quiring the praetor maximus to drive the nail on the ides of 
 September, must accordingly have been acts, not of the centu- 
 
 1 Livy vi. 35. 5. The provision that " at least " one should be plebeian is doubt- 
 less an anticipation of the Genucian law. 3 Livy vii. 42. 2 ; cf. p. 299. 
 
 3 The alleged centuriate resolution granting a place for a dwelling to P. Valerius 
 Publicola, passed under his own presidency (Ascon. 13), is still earlier and less 
 trustworthy. 4 Livy ii. 41; Dion Hal. viii. 71, 73 ff. 
 
 6 Livy iii. 31. 1. In 32. 7 he calls it the Icilian law with the idea that it was tri- 
 bunician; but Dion. Hal. x. 32. 4, referring to the document kept in the temple of 
 Diana, states that it was passed by the centuriate assembly; cf. Herzog, Rom. 
 Staatsverf. i. 169, n. 1. Lange, Rom. Alt. i. 619; ii. 607 f., wrongly asserts that it 
 was a plebiscite; cf. p. 272 below. 
 
 6 P. 234 f., 298. ' Macrob. Sat. i. 13. 21. 8 Livy vii. 3. 5. 
 
FUNCTIONS OF THE CENTURIES 239 
 
 riate 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 magis- 
 trates was recognized as competent for legislation, and natu- 
 rally took to itself the function of enacting the less weighty, 
 for a time generally the non-constitutional, laws. 1 We are not 
 to imagine the field of legislation clearly divided into constitu- 
 tional, 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 legis- 
 lation 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 sum- 
 mon 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 con- 
 fined to cases of crime and of serious disobedience to magis- 
 trates. 2 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, 3 necessarily to the comi- 
 tia curiata, which under the kings remained the only formally 
 voting assembly.* During the regal period, the well attested 
 
 1 Lange, Rom. Alt. ii. 608 f. 
 
 2 Lange, Rom. Alt. ii. 541, and note on earlier literature; Mommsen, Rom. 
 Staatsr. i. 148 i., 160 f; iii. 353. 
 
 8 Livy i. 26. 5-14; viii. 33. 8. For the theory that the popular assembly was 
 sometimes a court of the first instance, see p. 260. 
 
 4 Lange's idea (ibid. i. 457 f.; ii. 542) that Servius Tullius transferred appellate 
 jurisdiction to the comitia centuriata rests upon his view that Servius was the author 
 of the political centuriate organization. 
 
240 THE ROMAN ASSEMBLIES 
 
 appellate function of the comitia 1 was simply precarious, de- 
 pending wholly on the pleasure of the king. 2 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, 3 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. 4 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, 6 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. 6 The appellant, however, 
 had no legal means of enforcing his right against the magis- 
 trate ; 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." r The first lex Valeria, 
 accordingly, brought little real benefit to the citizens. 8 The 
 
 1 Cf. Fest. 297. 11-24; Cic. Mil. 3. 7; Sep. ii. 31. 54; Livy i. 26. 
 
 2 Dion. Hal. iv. 25. 2; Livy i. 26. 5; Mommsen, Som. Staatsr. ii. II; Som. 
 Strafr. 474. 
 
 3 For the earlier literature on the ius provocationis, see Lange, Som. Alt. ii. 
 542, n. 
 
 4 Cic. Sep. i. 40. 62; ii. 31. 53: "Legem ad populum tulit earn, quae centuriatis 
 comitiis prima lata est, ne quis magistratus civem Romanum adversus provocationem 
 necaret neve verberaret"; 36. 61; Livy ii. 8. 2; 30. 5 f.; Hi. 33. 9 f.; Val. Max. iv. 
 I. 1; Plut. Popl. 11; Pomponius, in Dig. i. 2. 2. 16; Dion. Hal. v. 19. 4; cf. Ihne, 
 in Skein. Mus. xxi (1866). 168. 
 
 6 Cic. Sep. ii. 31. 54; Livy iii. 55. 4; x. 9. 3-6; cf. Pais, Storia di Soma, I. i. 489. 
 
 6 Cic. Rep. ii. 31. 54 : " Ab omni iudicio poenaque provocari indicant XII Tabulae 
 compluribus legibus; et quod proditum memoriae est, X viros, qui leges scripserint, 
 sine provocatione creatos, satis ostenderit reliquos sine provocatione magistratus non 
 fuisse." 
 
 7 Greenidge, Leg. Proced. 311. Varro, L. L. vi. 68 : " Quiritare dicitur is qui qui- 
 ritium fidem clamans implorat"; cf. Cic. Sam. 32. 3; Livy ii. 55. 5 f.; iv. 14 f. 
 
 8 Ihne, in Skein. Mus. xxi (1886). 165 S. Two cases of appeal, which indeed 
 may be mythical, are mentioned by the annalists for the time before the decemviral 
 legislation — that of Sp. Cassius, which is only one of several views as to his condem- 
 nation and death (Livy ii. 41; iv. 15. 4; Dion. Hal. viii. 77 f.; ix. I. 1; 3. 2; 51. 
 2; x. 38. 3; Diod. xi. 37. 7; Cic. Sep. ii. 35. 60; Flor. i. 26. 7), and that of the 
 plebeian M. Volscius Fictor for false testimony; Livy iii. 25. 2 f. 
 
FUNCTIONS OF THE CENTURIES 241 
 
 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. 1 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. 2 
 
 The Valerian-Horatian law of appeal, 449, was directed 
 against the recurrence of the decemvirate or any similar magis- 
 tracy 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, 3 and is alleged to have been reinforced by a Duil- 
 lian plebiscite of the same year, which set the penalty of scourg- 
 ing and death for the same offence. 4 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. 6 
 
 But legal rights by no means imply actual enjoyment; and 
 the decemviral laws of appeal must have long remained sub- 
 stantially inoperative through lack of a power sufficiently inter- 
 ested in their enforcement ; " the might of the few was stronger 
 than the liberty of the commons." 6 The right was limited, too, 
 by the first milestone, 7 and hence did not affect the imperium 
 militiae. 8 The only punishment of a magistrate for refusal to 
 
 1 Cic. Rep. ii. 31. 54, quoted p. 240, n. 6. The statement of Cicero is too general; 
 Greenidge, Leg. Proced. 312. 
 
 2 Cic. Leg. iii. 4. 1 1 : " De capite civis Romani nisi per maximum comitiatum ol- 
 losque, quos censores in partibus populi locassint, ne ferunto"; 19. 44; Sest. 30. 65; 
 34. 73 : " De capite non modo ferri, sed ne iudicari quidem posse nisi comitiis cen- 
 turiatis"; cf. Rep. ii. 36. 61; Plaut. Pseud. 1232; Mommsen, Rom. Staatsr. ii. 578; 
 Karlowa, Rom. Rechtsgesch. i. 409; Greenidge, Leg. Proced. 317; p. 268. 
 
 8 Cic. Rep. ii. 31. 54; Livy iii. 55. 4; cf. Mommsen, Rom. Staatsr. iii. 352, 11. 2; 
 Lange, Rom. Alt. i. 638; ii. 551; Greenidge, Leg. Proced. 318. 
 
 4 Livy iii. 55. 14; cf. 54. 15. 
 
 6 Livy iv. 13. II f.; vi. 16. 3 (385); vii. 4. 2 (362); viii. 33-35 (325; see p. 242, 
 n. 5); Mommsen, Rom. Staatsr. ii. 164 f. with notes; Rom. Strafr. 476; Green- 
 idge, Leg. Proced. 318; cf. p. 242. 6 Livy x. 9. 4. 
 
 'Livy iii. 20. 7; Mommsen, Rom. Staatsr. i. 66 f.; iii. 352. 
 
 8 Lange, Rom. Alt. ii. 543 ; Mommsen, ibid. 
 
242 THE ROMAN ASSEMBLIES 
 
 grant an appeal even by the Valerian law of 300, was to be deemed 
 wicked. 1 Furthermore the oft-recurring dictatorship was un- 
 restricted by the law, being in this respect a temporary restora- 
 tion of the regal office. 2 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," 3 but itself a limi- 
 tation on the jurisdiction of the assembly. 4 At some unknown 
 date after 325 s the dictator's authority within the city was sub- 
 jected to appeal; and it has accordingly been suggested that 
 this limitation was due to the Valerian law of 300. 6 
 
 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. 7 But 
 
 1 Livy x. 9. 5 : " Improbe factum." This denunciation might involve penal con- 
 sequences according to Greenidge, Leg. Proced. 319 f. Mommsen, Rom. Strafr. 167, 
 632 f., supposes the expression to signify that the offending magistrate was to be 
 treated as a private person and punished for murder. Some are of the opinion that 
 it involved loss of citizenship, whereas others suppose its effect was simply moral; 
 cf. Karlowa, Rom. Rechtsgesch. i. 429. 
 
 2 Livy ii. 18. 8; 30. 5; iii. 20. 8; viii. 33 (dictator permits appeal); Dion. Hal. 
 v. 75. 2 f.; vi. 58. 2; Zon. vii. 13. 13; Pomponius, in Dig. i. 2. 2. 18; Lydus, 
 Mag. i. 37; Mommsen, Rom. Staatsr. ii. 163, n. I; Lange, Rom. Alt. i. 756 f. 
 
 8 Livy ii. 55. 5; iii. 45. 8; 55. 6, 14; 56. 5; 67. 9; viii. 33. 7: "Tribunos 
 plebis appello et provoco ad populum"; xxxvii. 51.4; Dion. Hal. ix. 39. I f.; 
 Mommsen, Rom. Staatsr. i. 277. 
 
 4 Livy iii. 24. 7; 25.2; 29.6; Lange, Rom. Alt. i. 840; ii. 544. 
 
 6 The appeal of Fabius from the jurisdiction of the dictator in 325 was granted 
 not under compulsion but in grace; Livy viii. 35. 5. On the freedom of the dicta- 
 torship from this restriction in the period between 449 and 325, see p. 241, n. 5. 
 The court mentioned by Livy ix. 26. 6 ff. (314) seems to have been an extraordinary 
 quaestio under the presidency of a dictator; Mommsen, Rom. Staatsr. ii. 165, n. 6. 
 On the subjection of his authority to appeal, see Fest. 198. 32 : " Optima lex . . . 
 in magistro populi faciendo, qui vulgo dictator appellatur, quam plenissimum posset 
 ius eius esse significabat, ut fuit M\ Valerio M. f. Volusi nepotis, qui primus magis- 
 ter populi creatus est. Postquam vero provocatio ab eo magistratu ad populum 
 data est, quae ante non erat, desitum est adici, ' ut optima lege,' utpote imminuto 
 iure priorum magistrorum." 
 
 6 Mommsen, Rom. Staatsr. ii. 165; Greenidge, Leg. Proced. 319. 
 
 ' Cic. Leg. iii. 3. 6; Livy ii. 29. 4: "Ab lictore nihil aliud quam prendere pro- 
 hibito"; ii. 55. 5; Dion. Hal. vi. 24. 2. 
 
FUNCTIONS OF THE CENTURIES 243 
 
 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. 1 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 2 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. 3 The second case is 
 that of M. Manlius, 384, according to the more credible ac- 
 count,* whereas Livy 6 himself is of the opinion that the prose- 
 cutors were the plebeian tribunes. We may conclude, then, 
 that the duumviri were still employed at this date. 6 The third 
 case is an unsuccessful attempt in 63 to revive the office for the 
 trial of C. Rabirius.* The first republican law of appeal must 
 have empowered the comitia to order the appointment of these 
 officials by the magistrate ; 8 and it seems probable that at a 
 later date unknown to us they began to be elected by the 
 
 1 Livy i. 26. 5 : " Duumviros . . . qui . . . perduellionem iudicent secundum 
 legem facio"; § 7: "Hac lege duumviri creati"; vi. 20. 12: "Sunt qui per duum- 
 viros, qui de perduellione anquirerent creatos auctores sint damnatum." Creare 
 applies to appointments though less commonly than to elections; cf. Livy ii. 18. 
 4 {.; 30. 5; iv. 26. 6; Fest. 198. 4 (of the dictator); Livy iv. 46. 11; 57. 6 (of the 
 magister equitum). In vi. 20. 12, quoted above, Livy may possibly be thinking of 
 election, which seems to have become the rule before the disuse of the office ; cf. 
 Greenidge, Leg. Proced. 304, 309. 
 
 2 Livy i. 26; Fest. 297. 11. 
 
 8 Dig. xlviii. 4. 1 1 : "Qui perduellionis reus est, hostili animo aduersus rem pub- 
 licam uel principem animatus "5 cf. Greenidge, Leg. Proced. 303. 
 
 *Livy vi. 20. 12; see n. 1 above. 
 
 6 Ibid. vi. 19. 6 ff. 
 
 6 Cf. Ihne, in Rhein. Mus. xxi (1866). 177. 7 P. 258. 
 
 8 This comitial resolution may be anticipated in the account of the process against 
 Horatius given by Livy i. 26. 5 : " Duumviros . . . secundum legem facio "; cf. 
 § 7 : " Hac lege duumviri creati." The king, whose judgments were absolute, could 
 not have thus been forced ; hence more probably lex in these phrases is not a 
 comitial act but the formula of appointment ; Greenidge, Leg. Proced. 356 and n. I. 
 The procedure in the trial of C. Rabirius was in this respect similar ; a law compell- 
 ing the praetor to appoint duumviri is suggested by Cic. Rab. Perd. 4. 12. 
 
244 THE ROMAN ASSEMBLIES 
 
 people. 1 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. 2 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. 3 
 
 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.* 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. 6 Lange's 6 ex- 
 planation 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. 7 According to 
 another, perhaps even earlier, version he was tried and con- 
 demned at home by his father. 8 The second instance is the 
 trial of M. Volscius, 459, for false testimony, 9 which was like- 
 wise a capital crime. Their judicial competence was recognized 
 by the Twelve Tables ; 10 and two capital cases are assigned to 
 their jurisdiction after the decern virate, (1) that of Camillus on 
 an accusation variously stated by the ancient authorities ; u he 
 
 1 Dio Cassius, xxxvii. 27. 2, finds fault with the procedure against Rabirius on 
 the ground that the duumviri for judging him were appointed by the praetor, not 
 elected as they should have been " according to ancestral usage." 
 
 2 Livy i. 26. 5; Pomponius, in Dig. i. 2. 2. 16; Cic. Leg. iii. 12. 27; Lange, 
 Rom. Alt. ii. 544; Mommsen, Rom. Staatsr. ii. 617 f. 
 
 3 P. i°4- * Greenidge, Leg. Proced. 303-5. 
 
 6 Cic. Rep. ii. 35. 60; Livy ii. 41. 11; Dion. Hal. viii. 77. I; cf. Greenidge, Leg. 
 Proced. 309. 6 ji omi Au _ ;. OI0 . j;. J45 _ 
 
 7 Cf. the trial of Horatius for murder by the duumviri perduellioni iudicandae; 
 P- 2 43- 8 Livy ii. 41. 10. 9 Livy iii. 24. 3; 25.2. 
 
 10 Pomponius, in Dig. i. 2. 2. 23 : " Quia . . . de capite civis Romani iniussu 
 populi non erat lege permissum consulibus ius dicere, propterea quaestores con- 
 stituebantur a populo, qui capitalibus rebus praeessent : his appellabantur quaestores 
 parricidii, quorum etiam meminit lex Duodecim Tabularum"; cf. Fest. 258. 29; ep. 
 221. 
 
 11 Pliny N. H. xxxiv. 4. 13 : " Camillo inter crimina obiecerit Sp. Carvilius quaestor, 
 quod aerata ostia haberet in domo." According to Livy v. 23. II; 32. 8 f„ it was 
 misappropriation of the Veientan spoil. Diodorus, xiv. 117. 6, states that according 
 to one report the accusation was that he had driven white horses in his triumph. 
 The appeal was to the comitia centuriata; Cic. Dom. 32. 86. This case indicates 
 
FUNCTIONS OF THE CENTURIES 245 
 
 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, 1 which must have 
 taken place after 242. 2 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. 3 The criminal jurisdiction of 
 the quaestors must have continued till the institution of standing 
 quaestiones. 4 
 
 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. 5 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. 6 For a 
 time, probably till the Hortensian legislation, they were de- 
 
 either inconsistency in legal usage, quite possible in early time, or more probably the 
 union of inconsistent traditions. The facts that Pliny mentions a quaestor appar- 
 ently as prosecutor, not simply as witness ( Lange, Rom. Alt. ii. 582), and that Cicero 
 represents the trial as belonging to the centuries suffice to indicate a questorian 
 prosecution before that assembly. Should we venture to bring consistency to so 
 uncertain a story, we could suppose that in his absence, the tribunes, taking up the 
 case, lightened the penalty to a fine. 
 
 1 Varro, L. L. 90-92 (mutilated excerpts from the record of this trial, preserved in 
 the Commcntaria Quaestorum and containing part of the edict for summoning the 
 assembly and the accused). 
 
 2 That is, after the increase in the number of praetors ; Lange, Rom. Alt. i. 884 ; 
 ii. 551; Mommsen, Rom. Staatsr. ii. 543, n. 2. 
 
 « P. 243, 248. 
 
 4 Cf. Mommsen, Rom. Staatsr. ii. 543 f.; Lange, Rom. Alt. i. 389, 884, 910 ; ii. 
 555. 5 P. 241. 
 
 6 Cf. Livy xxvi. 3. 9; xliii. 16. 11 ; Gell. vi. 9. 9; Karlowa, Rom. Rechtsgtsch. i. 
 409. 
 
246 THE ROMAN ASSEMBLIES 
 
 pendent upon the patrician magistrates for this privilege. 1 
 According to our sources the tribunes, with the approval of 
 the consuls, 2 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. 8 The suicide of the accused prevented the trial. 
 On the eight remaining decemvirs they passed in the same 
 assembly a sentence of exile. 4 M. Claudius, too, condemned 
 for false testimony, was exiled, the death penalty being miti- 
 gated also in his case. 6 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. 6 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 am- 
 bassador to them. He, too, is said to have died before the 
 trial. 7 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 duum- 
 viral. On either alternative they came before the centuriate 
 comitia. 
 
 1 Cf. Herzog, Rom. Staatsverf. i. 196. 
 
 2 Livy Hi. 59. 4; Dion. Hal. xi. 49. 3. 
 8 Livy iii. 56-8; Dion. Hal. xi. 46, 49. 
 
 4 Livy iii. 58. 10; Dion. Hal. xi. 49; Zon. vii. 18. II. 
 
 6 Livy iii. 58. 10; Dion. Hal. xi. 46. 5; Gell. xx. 1. 53. False testimony in a 
 case of this kind, which was vindicia not murder, was not capital; hence it did not 
 ordinarily come before the tribunes; Mommsen, Rom. Staatsr. ii. 324, 11. 6. The 
 political importance of the case, however, was a sufficient motive to their under- 
 taking it. 
 
 6 Livy iv. 16. 5 f.; 21. 3 f.; Cic. Dom. 32. 86; Rep. i. 3. 6; Val. Max. v. 3. 2 g; 
 Lange, Rom. Alt. i. 668; ii. 553. Roman law regarded false testimony in capital 
 cases as murder; hence the prosecution of Minucius might legally have come 
 before the quaestors; Mommsen, Rom. Staatsr. ii. 324, u. 6. 
 
 7 Livy vi. 1. 6. 
 
FUNCTIONS OF THE CENTURIES 247 
 
 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, 1 (2) that against L. or M. Laetorius 
 Mergus, a military tribune, quod cornicularium suum stupri 
 causa appellasset, 2 (3) the case mentioned by Pliny and others 
 against a person of unknown name, which probably belongs to 
 this period. 3 The second case seems to be a trial of official 
 accountability, which fell within tribunician jurisdiction accord- 
 ing 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.* 
 The accusing tribune ordered him to be seized and imprisoned, 
 but three colleagues interceded. 6 About the same time M. 
 Atilius Calatinus was unsuccessfully prosecuted on a charge of 
 having betrayed Sora, 6 probably in connection with the defec- 
 tion of that town to the Samnites in 315. 7 
 
 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 signifi- 
 cance. 8 These circumstances tend to prove that the cases as- 
 signed 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 
 
 1 Livy viii. 28; Dion. Hal. xvi. 5 (9) ; Suid. s. r<£<os AatriSpios. Mommsen, /Tom. 
 Staatsr. ii. 325, n. 1, denies that a case of the kind could come before the tribunes. 
 
 2 Dion. Hal. xvi. 4 (8); Val. Max. vi. 1. II; Suid. ibid. This prosecution could 
 be brought on the ground of misconduct of office; Mommsen, ibid. 
 
 8 Pliny, N. H. viii. 45. 180; Val. Max. viii. I. 8. 
 * Livy ix. 33. 4 f. 
 6 Ibid. 34. 26. 
 
 6 Val. Max. viii. 1. abs. 9. 
 
 7 Livy ix. 23. 2; Mommsen, Horn. Staatsr. ii. 323, n. 5. 
 
 8 The same thing is true of the finable actions of this period; p. 290. 
 
248 THE ROMAN ASSEMBLIES 
 
 before the enactment of the Hortensian law. 1 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 com- 
 mon 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 offi- 
 cials responsible for their administration, though occasionally 
 they called private persons to account for their conduct as citi- 
 zens. 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, how- 
 ever, he was fined 120,000 asses, 1000 for each ship lost. 2 His 
 colleague, L. Junius, by suicide escaped condemnation on a 
 charge of perduellio. 3 In 212 two tribunes of the plebs prose- 
 
 1 This view has no other warrant than the uncertainty of our sources for the fifth 
 and early fourth centuries B.C. That the tribunes should make early gains in juris- 
 diction, to be afterward partially lost, is thoroughly consistent with the law of ple- 
 beian progress, which consisted, not in a steady forward movement, but in succes- 
 sive advances and retreats. 
 
 2 Livy, ep. xix; Cic. Div. ii. 33. 71; IV. D. ii. 3. 7 ; Polyb. i. 52. 1-3 ; Schol. 
 Bob - 337 ; Val - Max. viii. I. abs. 4 ; Lange, Rom. Alt. ii. 556 ; Mommsen, Rom. 
 Staaisr. ii. 321, 11. 1; iii. 357, n. I; p. 317 below. 
 
 8 Cic. Div. ii. 33. 71; N. D. ii. 3. 7; Val. Max. i. 4. 3. 
 
FUNCTIONS OF THE CENTURIES 249 
 
 cuted 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 per- 
 duellio, 1 we should suppose before the centuries. 2 Among the 
 complaints urged against him by the consuls in the senate were 
 that " he had wrested from the Roman people the right of suf- 
 frage, had broken up a concilium plebis, had reduced the trib- 
 unes to the rank of private persons, had marshalled an army 
 against the Roman people, seized a position, and cut the trib- 
 unes off from the plebs, and had prevented the tribes from being 
 called to vote." Specifically the crime must have been per- 
 duellio. 8 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, 4 the tribes were competent to 
 decree him an exile after his voluntary retirement. 6 Some of 
 the coadjutors in the violence of the publican above mentioned 
 left their bail and followed him into exile; others were impris- 
 oned to await capital trial, with what result the historian does 
 not inform us. 6 
 
 In the same year Cn. Fulvius, a praetor, met with military re- 
 verses through gross cowardice, 7 and in the following was prose- 
 cuted 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 peo- 
 ple were in a temper to vote the extreme penalty, the prosecutor 
 
 1 P. 318. 
 
 2 Greenidge, Leg. Proced. 328 f., wrongly assumes that in this case the charge of 
 perduellio came before the tribes ; the interdiction of the man by the tribes after 
 his departure was not a iudicium but a lex. 
 
 8 Cf. Mommsen, Rom Staatsr. ii. 299. 
 
 * p. 241. 6 P. 267, 446. 
 
 6 Livy xxv. 3 f. 
 
 7 Livy xxv. 20. 6 ft.; p. 318, n. 8 below. Livy gives us to understand that defeat 
 resulting from ignorance or temerity could not be made a ground of prosecution. 
 
250 THE ROMAN ASSEMBLIES 
 
 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. 1 In 204 by a decree of the senate a 
 special commission, consisting of the praetor for Sicily with a 
 council of ten senators, 2 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. 8 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. 4 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. 5 The fate 
 of his accomplices is unknown. 6 Livy 7 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. 8 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 pro- 
 
 1 Livy xxvi. 2. 7 through ch. 3 ; Mommsen, Rom. Staatsr. ii. 320, n. 2, 321, n. 2 ; 
 Lange, Rom. Alt. ii. 556; Greenidge, Leg. Proced. 329 f. On the right to change the 
 form of action, see p. 287. 
 
 2 The two plebeian tribunes and the aedile who accompanied this commission 
 were sent to recall Scipio, should he be found responsible for the conduct of his 
 legate ; Livy xxix. 20. 11. They do not seem to have been members of the com- 
 mission. 
 
 8 Livy xxix. 8. 6 ft". ; chs. 16-22. 
 
 4 Livy xxix. 19. 5; 22. 7. The form of comitia is inferred from the circumstances. 
 
 6 Livy xxxiv. 44. 7 f. 
 
 6 Livy xxix. 22. 8 f. (cf. xxxi. 12. 2); Diod. xxvii. 4; cf. Val. Max. i. 2. 21; 
 Appian, Hann. 55. 
 
 7 XXIX. 22. 8. 
 
 8 Lange, Rom. Alt. ii. 557. The date of the execution of C. Veturius in pursu- 
 ance of a vote of the people (Plut. C. Gracch. 3) is unknown. 
 
FUNCTIONS OF THE CENTURIES 251 
 
 hibiting the sentence of death being afterward reenforced by 
 other enactments. 1 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. 2 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. 3 According to this law 
 the citizen who appealed was sent to Rome for trial by the ap- 
 propriate civil authorities. Still later the third Porcian law, 
 ■which Lange 4 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, 5 who wrote later than the date last mentioned, that 
 the military tribunes were accustomed in court-martial to con- 
 demn 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 
 
 1 Sail. Cat. 51. 21 f. : "Quamobrem in sentcntiam non addidisti, ut prius verbe- 
 ribus in eos animadvorteretur ? An quia lex Porcia vetat ? At aliae leges item 
 condemnatis civibus non animam eripi sed exilium permitti iubent"; 51. 40: 
 " Postquam res publica adolevit et multitudine civium factiones valuere, circumvenire 
 innocentes, alia huiusce modi fieri coepere, turn lex Porcia aliaeque paratae sunt, 
 quibus legibus exilium damnatis permissum est"; Cic. A'ab. Perd. 3. 8: "De 
 civibus Romanis contra legem Porciam verberatis aut necatis"; Pseud. Sail, in Cic. 
 i. 5 : charges against Cicero that in putting Roman citizens to death he has 
 abolished the lex Porcia. Livy x. 9. 4 : " Porcia tamen lex . . . gravi poena, si 
 •quis verberasset necassetve civem Romanum, sanxit " ; cf. Cic. Rab. Perd. 4. 1 2 f. ; 
 
 Verr. v. 63. 163 ; Gell. x. 3. 13. Greenidge, Leg. Proced. 320, doubts whether it 
 allowed exile to one condemned by a vote of the people. Against him is Polyb. 
 vi. 14. 7, quoted p. 217, n. 5. 
 
 2 Livy xxxii. 7. 8; Fest. 234. 10; The opinion here given is that of Lange, Rom. 
 Alt. ii. 205, 558. A different view is represented by Orelli-Baiter, Cic. Op. viii. 3. 
 252 f. 
 
 8 The decisive evidence is a coin, described by Mommsen, Rom. Munzwcsen, 552, 
 representing an armed man evidently in the act of condemning a civilian, whose 
 appeal is indicated by the word PROVOCO beneath. The inscription on the ob- 
 verse P. LAECA reveals the author of the law. 
 
 4 Rom. Alt. i. 249; ii. 559. 
 
 6 VI. 37 f. 
 
252 THE ROMAN ASSEMBLIES 
 
 foreigner with cudgels. 1 Cicero 2 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 other- 
 wise be maintained. Evidence to the contrary is scant and un- 
 certain. 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. 3 In 
 122 Livius Drusus proposed to exempt Latin soldiers from flog- 
 ging.* While informing us that in 108 a commander had a right 
 to scourge and put to death a Latin official, Sallust 6 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. 6 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. 7 This difficult subject 
 is further complicated by the statement of Cicero 8 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 
 
 1 Livy, ep. lvii; cf. Cic. Rep. i. 40. 63: "Noster populus in bello sic paret ut 
 regi." 
 
 2 Leg. iii. 3. 6 : " Militiae ab eo qui imperabit provocatio nee esto," which how- 
 ever, Mommsen, Rom. Staatsr. ii. 117, u. 2 (cf. Rom. Stra.fr. 31, n. 3) sets down as 
 merely a pious wish of the author. 
 
 8 Livy, ep. lv : (In the consulship of P. Cornelius Nasica and D. Junius Brutus) 
 " C. Matienus accusatus est apud tribunos plebis, quod exercitum in Hispania de- 
 seruisset, damnatusque sub furca diu virgis caesus est, et sestertio nummo veniit." 
 The new epitome, 1. 207-9, speaks of desertores who on this occasion were thus 
 flogged and sold. It is not known that the tribunes tried cases of desertion or that 
 they inflicted the kind of punishment here described. C. Titius, sent for trial to the 
 tribunes on the charge of having stirred up a mutiny (Dio. Cass. Frag. 100 ; year 
 89), may have been a civilian. 
 
 4 Plut. C. Gracch. 9. 6 lug. 69. 
 
 6 Modestinus, in Dig. xlix. 16. 3. 15; Menander, ibid. 16. 6. I f. 
 
 7 An example of a military consilium is given by Livy xxix. 20 f. 
 
 8 Rep. ii. 31. 54: "Neque vero leges Porciae, quae tres sunt trium Porciorum, ut 
 scitis, quicquam praeter sanctionem attulerunt novi." 
 
FUNCTIONS OF THE CENTURIES 253 
 
 place of scourging and death. In the relation between the ac- 
 cused and the civil court the cry " civis Romanus sum " was 
 thereafter a sufficient protection from bodily injury. 1 
 
 In the period to which the Porcian laws belong falls the accu- 
 sation 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 mag- 
 istracy, consented to a trial, which came before the comitia 
 centuriata. Claudius narrowly escaped condemnation, where- 
 upon the case against Gracchus was dropped. 2 
 
 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. 3 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 perdu- 
 ellio, 4 and by the lex Caelia, 108, which removed the exception. 5 
 
 The limitation upon popular jurisdiction by the special court 
 is said to have begun as early as 414, when, according to Livy, 6 
 a senatus consultum authorized the appointment of a quaestio 
 extraordinaria to discover and punish the murderers of M. Pos- 
 tumius, 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 con- 
 demned, by an extraordinary court, which evidently owed its 
 existence to a senatus consultum without the cooperation of 
 
 1 Cic. Verr. v. 62. 162. 2 Livy xliii. 16. 8 ff. 
 
 8 Polyb. vi. 14. 6; cf. Lange, Rom. Alt. ii. 560. 
 
 * Cic. Brut. 25. 97; 27. 106; Leg. iii. 16. 37; Sest. 48. 103; Schol. Bob. 303; 
 Cic. Frag. A. vii. 50; Ascon. 78; Pseud. Ascon. 141 (.; Orelli-Baiter, Cic. Op. viii. 
 
 3- 278 f- 
 
 6 Cic. Plane. 6. 16. • IV. 50. 6 ff. 
 
254 THE ROMAN ASSEMBLIES 
 
 the people. 1 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. 2 It did in fact possess the right without 
 the cooperation of the people to institute quaestiones extraor- 
 dinariae 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 in- 
 stances it dared on its own responsibility to appoint such courts 
 for the trial of citizens. 3 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 juris- 
 diction 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 impos- 
 sible for them directly to exercise.* The court which tried and 
 condemned the insurgent garrison of Rhegium in 270 was 
 instituted accordingly by a plebiscite authorized by a senatus 
 consultum. 5 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. 6 The appointment of special courts for the detection 
 and punishment of aliens for illegal usurpation of the citizen- 
 
 1 Livy viii. 18; Val. Max. ii. 5. 3. 
 
 2 IX. 26. 
 
 3 (l) In 186 for the trial of the Bacchanalians (Livy xxxix. 8-19); (2) in 
 180 two courts for the detection and trial of poisoners in Rome and Italy 
 (Livy xl. 37). The two courts established in 186 for the trial of poisoners and 
 for putting down the last of the Bacchanalians are mentioned by Livy xxxix. 41 
 without a hint as to the manner of their appointment; cf. Greenidge, Hist, of Rome, 
 i. 135, n. 4. 
 
 4 Polyb. vi. 1 6. 2; Cic. Dom. 13. 33. 
 
 5 Dion. Hal. xx. 7. Though no mention is here made of a quaestio extraordi- 
 naria, we may assume one for every such instance. In actual iudicia populi the 
 senate had no part. 
 
 6 Livy xxvi. 33 f. 
 
FUNCTIONS OF THE CENTURIES 255 
 
 ship, which belonged originally to the senate, began in 177 to 
 be shared by the people. 1 
 
 Similar in character to the special judiciary commission ap- 
 pointed by the senate, but far more sweeping in effect, was the 
 senatus consultum ultimum ("videant consules, ne quid res- 
 publica detrimenti capiat"), which in crises armed the consuls 
 with absolute power of life and death over the citizens. 2 By 
 these means the senate at its pleasure circumvented the laws of 
 appeal on the plea that the accused had ceased to be citizens. 3 
 Against this abuse Ti. Gracchus planned a new law of appeal, 
 which he did not live to see enacted. 4 His own followers were 
 ruthlessly condemned without the privilege of appeal by an 
 extraordinary quaestio under P. Popillius Laenas, consul in 132. 5 
 Probably a similar court was appointed after the revolt of 
 Fregellae. 6 To put an end to such circumvention of a well- 
 established right of the people, C. Gracchus in his first tribu- 
 nate, 123, carrying into effect the plan of his brother, passed 
 the often mentioned lex Sempronia de provocatione, which abso- 
 lutely forbade capital sentence upon a citizen without an order 
 
 1 The following pre-Gracchan quaestiones extraordinariae, according to our 
 authorities, owed their existence to a popular vote, (i) The lex de pecunia regis 
 Antiochi of the two Q. Fetilii, tribunes in 185, for the establishment of a special 
 court to try L. Scipio Asiagenus and some others for the misappropriation of public 
 money; Livy xxxviii. 54, p. 399 below. — (2) The plebiscite of M. Marcius Sermo 
 and Q. Marcius Scylla, tribunes in 172, directed the senate to establish a special 
 court for the trial of M. Popillius on the charge of having unjustly subjugated and 
 enslaved the Ligurians; Livy xlii. 21.5. — (3) By the lex Caecilia, 154, a special 
 quaestio repetundarum was established for the trial of L. Lentulus, retired consul of 
 156; Val. Max. vi. 9. 10. — (4) Another special court for the trial of L. Hostilius 
 Tubulus on the charge of having accepted bribes while president of a murder court 
 (quaestio inter sicarios) was ordered by a plebiscite of P. Mucius Scaevola in 141, 
 whereupon the accused went into exile; Cic. Fin. ii. 16. 54; iv. 28. 77; v. 22. 62; 
 N. D. i. 23. 63; iii. 30. 74; Alt. xii. 5 b; Ascon. 22; Mommsen, Rom. Strafr. 197. 
 
 2 Lange, Rom. Alt. i. 728. The formula varied with the occasion, and other 
 magistrates were often associated with the consuls in this supreme power. 
 
 3 Cic. Cat. i. 11. 28: "Numquam in hac urbe, qui a re publica defecerunt, 
 civium iura tenuerunt"; Mommsen, Rom. Staatsr. iii. 359; Lange, Rom. Alt. ii. 
 560. 
 
 4 Plut. Ti. Gracch. 16; p. 368 below. The idea of Tiberius is to be inferred 
 from the law which his brother afterward passed. 
 
 6 Plut. C. Gracch. 4; Cic. Lael. 11. 37; CIL. i 2 . p. 148. 
 a Plut. C. Gracch. 3; cf. Greenidge, Hist, of Rome, i. 172. 
 
256 THE ROMAN ASSEMBLIES 
 
 of the people. 1 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. 2 It 
 reiterated, too, the article of the Porcian statute which absolutely 
 forbade the infliction of the death penalty on civilians. 3 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 per- 
 duellio, for which it mentioned the penalty of interdict from 
 fire and water.* 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. 5 The entire Sempronian law was made retroac- 
 tive, 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. 6 Rupilius, the colleague of 
 Popillius, seems to have suffered a similar punishment. 7 
 
 In 120 the tribune Decius prosecuted for perduellio L. Opi- 
 mius, who, as consul in 121, armed with the senatus consultum 
 ultimum, had caused the death of C. Gracchus. The accused 
 was acquitted. 8 Ihne 9 considers this prosecution to have been 
 
 1 Cic. Rab. Perd. 4. 12: "C. Gracchus legem tulit, ne de capite civium Romano- 
 rum iniussu vestro iudicaretur " ; Cat. iv. 5. 10; Verr. v. 63. 163; Sest. 28. 61; 
 Schol. Gronov. 412: "Lex Sempronia iniussu populi non licebat quaeti de capite 
 civis Romani"; Schol. Ambros. 370; Plut. C. Gracch. 4; p. 371 below. 
 
 2 For examples of special courts afterward instituted, see p. 390. 
 8 Sail. Cat. 51. 40; Cic. Cat. i. 11. 28; iv. 5. 10. 
 
 4 Cic. Dom. 31. 82 f. ; Plut. C. Gracch. 4; cf. Lange, Rom. Alt. ii. 561. It is not 
 probable, as Greenidge, Leg. Proced. 330 ; Hist, of Rome, i. 201, has assumed, that 
 the Sempronian law transferred jurisdiction in such cases from the centuries to the 
 tribes. The comitia tributa had long exercised the right to condemn those who had 
 fled into exile to avoid trial; p. 249, 267, 257, n. 5 (3). 
 
 6 Cic. Sest. 28. 61; cf. Dio Cass, xxxviii. 14.5; Greenidge, Hist, of Rome, i. 200 f. 
 
 6 Cic. Dom. 31. 82; Leg. iii. 11.26; cf. Cluent. 35. 95; Herzog, Rom. Staatsverf. 
 i. 465. 
 
 7 Veil. ii. 7. 4. 
 
 8 Livy, ep. lxi : " Quod indemnatos cives in carcerem coniecisset " (Mommsen 
 reads "in carcere necasset" or "in carcerem coniectos necasset"; Rom. Staatsr. ii. 
 in, u. 1); Cic. Part. Or. 30. 104, 106; Oral. ii. 25. 106; 30. 132; Lange, Rom. 
 Alt. ii. 562; iii. 50; Greenidge, Hist, of Rome, i. 278-80. 
 
 9 History of Rome, v. 5-7. His view is an inference from the circumstances. 
 
FUNCTIONS OF THE CENTURIES 257 
 
 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 1 19 the popular 
 party met with greater success in the prosecution of C. Papirius 
 Carbo, whom it hated as a renegade. 1 The charge was probably 
 perduellio, though the details are unknown. 2 
 
 The jurisdiction of the comitia in criminal cases suffered 
 more extensive curtailment from the standing courts, — quaes- 
 tiones perpetuae, — the first of which was established in 149 
 for the trial of Roman officials accused of extortion — repetun- 
 dae — committed in the provinces or in Italy. 8 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. 4 Notwithstanding this development several accusations 
 were brought before the centuriate assembly in the period be- 
 tween the Gracchi and Sulla. 5 The latter increased the number 
 
 1 The prosecutor was L. Crassus; Cic. Brut. 43. 159; cf. Oral. i. 10. 40; ii. 40. 
 170; Verr. II. iii. 1. 3; Val. Max. vi. 5. 6. 
 
 2 Valerius Maximus, iii. 7. 6, assumes that the accused went into exile; Cicero, 
 Fam. ix. 21. 3, informs us of a rumor that he committed suicide. Both reports may 
 be true; Greenidge, Hist, of Rome, i. 282; cf. Lange, Rom. Alt. iii. 51. 
 
 8 P. 358. 4 Mommsen, Rom. Staatsr. ii. 223 ff. 
 
 6 (1) After the case against Carbo may be mentioned the accusation of perduellio 
 against C. Popillius Laenas, 107, on the ground of a disgraceful surrender to the 
 Tigurini. It was on this occasion that the ballot was first used in a trial for per- 
 duellio. The accused seems to have been condemned to exile; Cic. Leg. iii. 16. 36; 
 Herenn. i. 15. 25; iv. 24. 34; Oros. v. 15. 24. This case, which resembles those 
 of far earlier time, has nothing to do with violation of the right of appeal; (Cic.) 
 Herenn. ibid. — (2) Similar in this respect was the prosecution of Q. Fabius Maxi- 
 mus Servilianus for the murder of his son. The accused went into exile before judg- 
 ment was pronounced; Oros. v. 16. 8; Val. Max. vi. I. 5. — (3) More famous is the 
 prosecution of Q. Caecilius Metellus Numidicus, 100, by L. Appuleius Saturninus 
 because the former refused to swear to maintain the agrarian law of the latter. 
 Technically the charge was that Metellus refused to do his duty as a senator. The 
 accused withdrew into exile before the trial, whereupon, by vote of the assembly, he 
 was interdicted from fire and water; Livy, ep. lxix; Appian, B. C. i. 31. 137-40; 
 Cic. Dom. 31. 82; Best. 16. 37; 47. 101. — (4) Decianus, tribune of the plebs, 97, in 
 accusing P. Furius, tribune of the preceding year, let fall some complaint regarding 
 the murder of Saturninus, and on that ground was accused, probably by a tribune of 
 the plebs, and condemned to exile; Cic. Rab. Perd. 9. 24; Schol. Bob. 230. — 
 s 
 
258 THE ROMAN ASSEMBLIES 
 
 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 j 1 and now Sulla transferred cases of per- 
 duellio from the jurisdiction of the tribunes to the quaestio 
 maiestatis. 2 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. 3 
 
 The revolutionary character of the period after Sulla is 
 illustrated by the case of perduellio against C. Rabirius* 
 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 prae- 
 tor 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, ap- 
 pointed duumviri, brought the case before the comitia centuriata, 
 which were prevented from giving their verdict by the removal 
 of the flag from Janiculum. 6 The object of the trial was not to 
 
 (5) The prosecution of M. Aemilius Scaurus for maiestas'by Q. Varius, tribune, 
 Dec. 91, was withdrawn in the second anquisitio; Ascon. 19, 21 f.; (Aurel. Vict.) 
 Vir. III. 72. 11; Quintil. v. 12. 10; Cic. Scaur. I, 3; Sest. 47. 101. — (6) L. Cor- 
 nelius Merula and Q. Lutatius Catulus, 87, avoided trial, probably for perduellio, by 
 suicide; Diod. xxxviii. 4; Appian, B. C. i. 74. 341 f. — (7) On the first day of the 
 following year, 86, P. Popillius Laenas, tribune of the plebs, hurled from the Tar- 
 peian Rock Sextus Lucilius (or Licinius ?), tribune of the preceding year, and set a 
 day of trial for the colleagues of the latter. The accused fled to Sulla and in their 
 absence were interdicted from fire and water. They were charged with perduellio; 
 their offence was the veto of the popular measures of Cornelius Cinna. This is the 
 only certain case of calling retired tribunes to account for their official conduct, and 
 may be regarded as a symptom of the revolution then in progress; Veil. ii. 24; 
 Livy, ep. lxxx; Dio Cass. Frag. 102. 12; Plut. Mar. 45. 
 
 1 P. 255, n. 1 (4). 
 
 2 Cic. Verr. i. 13. 38; cf. Mommsen, R'otn. Staatsr. ii. 326. 
 
 8 Dio Cass. lvi. 40. 4; Mommsen, Horn. Staatsr. ii. 326; iii. 359 f. 
 
 * P- 243. 6 p, 2o 3j n> 2i 
 
FUNCTIONS OF THE CENTURIES 259 
 
 punish the guilty, but to discredit the senate, to which the 
 accused belonged. 1 The decline of the idea of popular sov- 
 ereignty 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 appoint- 
 ment of decemviri agris adsignandis without appeal. 2 
 
 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 8 for a thorough examination (anquisitio).* 
 The trumpeter blew his horn before the door of the accused, 
 and cited him to appear at daybreak in the place of assembly. 6 
 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 con- 
 demned 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, 6 which could be held only after an interval of a trinum 
 
 1 Cic. Rab. Perd.; Dio Cass, xxxvii. 26 ff.; Suet. Cats. 12 ; Lange, Rom. Alt. ii. 
 563 (.; Hi. 240; Drumann-Grobe, Gesch. Roms, iii. 150-5; Wirz, in Jahrb. f. Philol. 
 xxv (1879). 177-201. In the opinion of Mommsen, Rom. Staatsr.M. 298,^3; 
 615, n. 2, following Niebuhr, a tribunician accusation involving a fine was then intro- 
 duced, and the oration of Cicero was delivered in this second trial. Drumann-Grobe, 
 ibid.; Greenidge, Leg. Proced. 357 f.; Schneider, Process des Rabirius (Zurich, 1899), 
 and others maintain that Cicero spoke in the trial conducted by the duumviri and 
 that after it was dropped no further accusation was brought. Wirz, ibid., supposes 
 that the senate quashed the process of the duumviri on the ground of illegality, that 
 the accuser (Labienus) then brought a tribunician accusation for perduellio, but 
 intimated a possible finable action in addition, and that the trial was ended, without 
 resumption, by the hauling down of the flag. 
 
 2 Cic. Leg. Agr. ii. 13. 33: "Orbis terrarum gentiumque omnium datur cognitio 
 sine consilio, poena sine provocatione, animadversio sine auxilio " ; p. 435. 
 
 8 Cic. Har. Resp. 4. 7. 
 
 4 Anquisitio seems to mean an examination on both sides — including testimony 
 for and against the accused; Fest. ep. 22; Greenidge, Leg. Proced. 345, u. 3. 
 
 6 Varro, L. L. vi. 91 f. 
 
 6 Cic. Dom. 1 7. 45 : " Cum tarn moderata iudicia populi sint a maioribus consti- 
 tuta . . . ne inprodicta die quis accusetur, ut ter ante magistratus accuset intermissa 
 
2 6o THE ROMAN ASSEMBLIES 
 
 nundinum, 1 unless the accused desired an earlier trial. 2 Some 
 scholars, however, hold the theory that a magistrate, recogniz- 
 ing the limitation of his competence, might bring the case 
 directly to the comitia without the formality of a condemnation 
 and appeal. 3 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. 4 If anything prevented the 
 voting in the comitia, the accused was discharged, 5 and could 
 not be legally brought to trial again for the same offence except- 
 ing under a different form of action. 6 
 
 Schulze, C. F., Volksversammlungen der Romer, 307-40; Hullmann, 
 K. D., Staatsrecht des Altertums, 334-54 ; Huschke, Ph. E., Verfassung des 
 Kbnigs Servius Tullius, chs. vii, xi; Wdniger, A. T., Sacralsystem und das 
 Provocationsverfahren der Romer; Peter, C, Epochen der Verfassungs- 
 geschichte der rb?n. Republik, mit besonderer Berucksichtigung der Centuriat- 
 comitien und der mit diesen vorgegangenen Ver Under ungen; Studien zur 
 rbm. Geschichte, 54 ff. ; Schwegler, A., Rom. Geschichte, see index, s. Cen- 
 turiatcomitien ; Ihne, W., History of Rome, iv. 10 ff. ; Mommsen, Rom. 
 Staatsrecht, iii. 300 ff. ; Rom. Strafrecht, 151-74, 473-8, 632-5; Mommsen 
 and others, Zum altesten Strafrecht der Kulturvolker, especially 31-51 by 
 H. F. Hitzig; Lange, L., Rom. Altertumer, ii. 516-33, 541-65, 597-613, see 
 also indices of vols, i-iii, s.v. ; Madvig, J. N., Verfassung und Verwaltung 
 des rbm. Staates, i. 226-34; Herzog, E., Geschichte und System der rbm. 
 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 
 
 die, quam multam inroget aut iudicet, quarta sit accusatio trinum nundinum prodicta 
 die, quo die iudicium sit futurum, turn multa etiam ad placandum atque ad miseri- 
 cordiam reis concessa sint, deinde exorabilis populus, facilis suffragatio pro salute, 
 denique etiam, si qua res ilium diem aut auspiciis aut excusatione sustulit, tota causa 
 iudiciumque sublatum sit." 
 
 1 The trinum nundinum, which included three market days (Macrob. Sat. i. 16. 34), 
 could not have contained less than seventeen days or more than twenty-four. 
 
 2 Livy, xliii. 16. II. 
 
 8 E.g. Greenidge, Leg. Proced. 306, 344. The theory has little in its favor and is 
 not generally accepted; cf. Mommsen, Rom. Strafr. 167 f. 
 
 4 On the quarta accusatio, see Cic. Dom. 17. 45, quoted p. 259, n. 6. An example 
 of the mitigation of a capital to a finable action is the case against T. Menenius for 
 the mismanagement of a campaign which he had conducted as consul; Livy ii. 52. 
 3-5 (476). Two examples of change in the form of action in the opposite direction 
 are given on p. 249 f. 6 Cic. Dom. 17. 45, quoted p. 259, u. 6. 
 
 6 Cf. the case of Appius Claudius Pulcher, p. 248. 
 
FUNCTIONS OF THE CENTURIES 261 
 
 Romaines, i. 203-7 ; Etudes d" 1 institutions Romaines, 63-6 ; Liebenam, W., 
 Comitia II, in Pauly-Wissowa, ReaUEncycl. iv. 686-700 ; Humbert, G. (s. 
 Comitia), in Daremberg et Saglio, Diet. i. 1378 f. ; Voigt, M., XII Tafeln, 
 i. 673-82; ii. 781-845; Karlowa, O., Rom. RechtsgeschicAte, i. 409; Girard, 
 P. F., Histoire de V organisation judiciaire des Remains, i. 104-59 i Usener, H., 
 Italische Volksjustiz, in Rhein. Mus. lvi (1901). I ff . ; Miiller, A., Straf- 
 j'ustiz im rom. Heere, in JV. Jahrb. f. kl. Altertum, xvii (1906). 550-77 ; 
 Vassis, Sp., Leges valeriae de provocatione, in Athena, xvii (1905). 160-5; 
 Kuspert, O., Ueber die Bedeutung und Gebrauch des Wortes ' Caput ' im 
 alter en Latein ; Dupond, A., De la constitution et des magistratures Romaines 
 sous la rlpublique, 67-74; Moye, M., Elections politiques sous la republique 
 Romaine; Hallays, A., Cornices a Rome, ch. ii; Morlot, E., Cornices tlec- 
 toraux, ch. vi ; Kappeyne van de Coppello, ]., Comitien, 105-7 ; Borgeaud, C, 
 Histoire du plebiscite, 45-57 ; Pantaleoni, D., Delia 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 awenuto negli ultimi tempi delta re- 
 publica 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, origi- 
 nally two, were instituted in 494 as a concession to the seced- 
 ing commons to win them back to the state. 1 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. 2 The change 
 in the form of organization in 471, from curiate to tribal, will 
 be considered below. The president of the comitia which 
 
 1 Livy ii. 33. I; Calpurnius Piso, in ibid. § 3; 58. I; Dion. Hal. vi. 89. 1; cf. 
 Cic. Rep. ii. 33. 58; Mommsen, Rom. Staatsr. ii. 274 f. with notes. Meyer, in 
 Rhein. Mus. xxxvii (1882). 616 f., suggests a doubt as to whether they were in- 
 stituted at that time. Niese, De annalibus Romanis observations (1886), and 
 Meyer, in Hermes, xxx (1895), I-2 4> nave tried to prove that they were not insti- 
 tuted till 47 1 and that their original number was four. Niese's view is controverted 
 by Joh. Schmidt, in Hermes, :xi (1886). 464-6. Pais, Anc. Italy, 260, 275, assumes 
 that they came into existence ss a result of the abolition of the decemvirate. 
 
 2 Cic. Frag. A. vii. 48 : " Tar ta igitur in illis virtus fuit, ut anno XVI post reges 
 exactos propter nimiam dominationem potentium secederent . . . duos tribunos 
 crearent, . . . Itaque auspicato oostero anno tr. pi. comitiis curiatis sunt"; Dion. 
 Hal. vi. 89. 1; cf. ix. 41. 4 f. (included clients and patricians) ; Livy ii. 56, especially 
 § 3, 10. These authors represent the tribunes as trying vainly to force the patricians 
 from the assembly while the voting was under way. The question of excluding the 
 patricians, however, is connected with the statute of Publilius Philo (339) rather 
 than with the so-called plebiscite of Publilius Volero (471); p. 300 f. 
 
 Dion. Hal. vii. 59. 2, places the s first tribal meeting in 491, twenty years before 
 the date to which its institution is otherwise assigned. If his account is not an 
 anticipation of later usage, it is exceptional. 
 
 262 
 \ 
 
 \ 
 
COMITIA TRIBUTA, TO 449 263 
 
 elected the first plebeian tribunes was necessarily a patrician 
 magistrate, 1 probably the pontifex maximus ; 2 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 busi- 
 ness and for the enactment of plebiscites (plebi scita). 
 
 The object of the office of tribune was the protection of indi- 
 vidual citizens, plebeian and patrician alikg , 3 from oppression ; and 
 the means was the auxilium (official aid), 4 which could be rendered 
 in no other way than by personal contact; hence the law prohibit- 
 ing a tribune from being absent over night from the city 5 and re- 
 quiring him to leave the door of his house open during the night. 6 
 In the further interest of the citizens the tribunes had the unre- 
 stricted 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, plebi- 
 scites being from the beginning binding on the plebeian body 
 in so far as they harmonized with the laws of the state. 7 
 
 These were the two original functions from which the vast 
 powers of the later tribunes gradually developed. As strictly 
 
 1 (1) Because there were no other magistrates at the time, (2) because the meet- 
 ing was auspicated; p. 262, n. 2. 
 
 2 Inferred from the circumstance that this dignitary presided over the assembly 
 which elected the first college of tribunes after the fall of the decemvirs; Livy iii. 
 54.5,9, n; p. 285 below. 
 
 8 Livy iii. 13. 6; 56. 5; viii. 33. 7; ix. 26. 16; xxxviii. 52. 8; Suet. Caes. 23. 
 Naturally the plebeians were in most need of protection; cf. Ihne, in Rhein. Mus. 
 xxi (1866). 169. 
 
 4 Livy ii. 33. 3 : " Auxilii non poenae ius datum illi potestati " ; cf. Ihne, ibid. 
 170. 
 
 6 Gell. iii. 2. 11; xiii. 12. 9; Macrob. Sat. i. 3. 8; Dion. Hal. viii. 87. 6; Serv. in 
 Am. v. 738; cf. Mommsen, Rom. Staatsr. ii. 291, n. 2. 
 
 « Plut. Q. R. 81. 
 
 7 In this respect the plebeian body was analogous to a corporation; Gaius, in Dig. 
 xlvii. 22. 4 (quoting a law of the Twelve Tables) . But it was not a private associa- 
 tion. It could neither limit its membership nor change its organization. Proof of 
 these two facts is that the change of organization from curiate to tribal and the con- 
 sequent exclusion of the landless resulted from a centuriate law; p. 271. Notwith- 
 standing the fact that its resolutions lacked the force of law, the close relation exist- 
 ing between it and the state gave it from the beginning a prominent place in the 
 constitution. 
 
264 THE ROMAN ASSEMBLIES 
 
 plebeian officials they had no authority to summon patricians, 
 to exclude them from the place of assembly, 1 or to condemn 
 them judicially. 2 It follows that their alleged prosecutions of 
 past consuls for maladministration 3 are fictions i — an anticipa- 
 tion of their jurisdiction at a later age. Directly they possessed 
 no power of judgment or of coercion ; 5 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, 6 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. 7 The avenger was 
 necessarily either a private plebeian or an official of the plebs. 8 
 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 
 
 1 Livy ii. 56. 11-13 (The consul asserted that according to ancestral usage he 
 himself had no right to remove any one from the place of assembly) ; cf. 35. 3 : 
 *' Plebis non patrum tribunos esse." 
 
 2 Livy ii. 35. 3: "Auxilii non poenae ius datum illi potestati"; 56. 11-13. 
 
 3 Cf. Livy ii. 35. 2; 52. 3 ff.; 54. 3 ff. ; 61. 
 
 4 Cf. Mommsen, Rom. Staatsr. ii. 320, n. 2; Ihne, in Rhein. Mus. xxi (1866). 
 175 fi.; Herzog, Rom. Staatsvcrf. i. 157. 
 
 6 Hence they had no viatores; so that for a time after they assumed criminal 
 jurisdiction the aediles acted as their bailiffs; p. 290. 
 
 6 Livy iii. 55. 10: (In the opinion of some iuris interpretates) "Tribunos vetere 
 iure iurando plebis, cum primum earn potestatem creavit, sacrosanctos esse." 
 
 7 Fest. 318; Livy iii. 55. 6-10; Dion. Hal. vi. 89. 3. The wording of the oath 
 as given above is derived from the law which, according to Livy, was carried by the 
 consuls Valerius and Horatius in 449; but there can be no doubt that this statute 
 confirmed the oath taken long before by the plebs. As to the connection of Ceres 
 with the plebeian organization, Pais, Anc. Italy, 272 ft, believes that her temple 
 was not built before the middle of the fifth century, whereas Wissowa, Relig. «. Kull. 
 d. Rom. 45, holds to the traditional date (493) ; cf. De Sanctis, Storia d. Romani, 
 ii. 30. The building of the templb did not necessarily precede the institution of the 
 tribunate. On the sacrosanctitas Wf the aediles, see Cato, in Fest. 318. 8; Momm- 
 sen, Rom. Staatsr. ii. 472 f. \ 
 
 8 As late as 131 a tribune of thevplebs, C. Atinius Labeo, regarding the censor 
 Q. Caecilius Metellus as a homo sacs for alleged violation of the tribunician sanc- 
 tity, attempted without legal trial to hurl him from the Tarpeian Rock; Livy, ep. lix; 
 Pliny, N. H. vii. 44. 142 f., 146; Cic. \om. 47. 123. See also Veil. ii. 24. 2; CAurel. 
 Vict.) Vir. III. 66. 8. 
 
COMITIA TRIBUTA, TO 449 265 
 
 of plebs, (2) that the offender against it became a homo sacer 
 and could be put to death with impunity. 1 This idea of sanc- 
 tity the plebeians may have derived partly from the Greek asy- 
 lum ; 2 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 institu- 
 tions as based on a treaty ratified with fetial ceremonies between 
 the patrician government and the seceding plebs. 3 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 ac- 
 knowledging the sanctity of their officials ; so that the patri- 
 cians, by asserting that Roman law did not recognize an invio- 
 lability founded purely on religion, 4 could afterward deny that 
 the tribunes were really sacrosanct. Till the enactment of the 
 Valerian-Horatian laws of 449, 5 accordingly, the inviolability of 
 
 1 Cic. Bali. 14. 33; Fest. 318. 9; Herzog, Rom. Siaatsverf. i. 147; also va/ahrb. 
 f. el. Philol. xxii (1876). 139-50; cf. Mommsen, Rom. Staatsr. ii. 286. Ihne, in 
 Rhein. Mas. xxi (1866). 176, expresses the belief that the lex sacrata had nothing 
 more than a religious influence, that the offender suffered in his conscience and in 
 public opinion only. The known leges sacratae, collected by Herzog, were (1) the 
 first Valerian law of appeal; Livy ii. 8. 2 (cf. ii. I. 9); (2) the act which rendered 
 the persons of the tribunes sacred, and which, as intimated above, was not strictly a 
 statute; Livy ii. 33. 1, 3; Fest. 318. 30; Dion. Hal. vi. 89. 2; Cic. Frag. A. vii. 48; 
 (3) the lex de Aventino; Livy iii. 31. I; 32. 7; Dion. Hal. x. 32. 4; (4) the Vale- 
 rian-Horatian law of appeal; Livy iii. 55. 4; (5) the military lex sacrata of 342; 
 Livy vii. 41. 3; (6) the law of M. Antonius for the abolition of the dictatorship, 44; 
 Appian, B. C. iii. 25. 94; Dio Cass. xliv. 51. 2. 
 
 2 Pais, Anc. Italy, 263. 
 
 8 Dion. Hal. vi. 84, 89. I; cf. vii. 40; xi. 55. 3; Fest. 318; Livy iv. 6. 7. The 
 idea that there was such a treaty is represented among moderns by Schwegler, Rom. 
 Gesck. ii. 249 f.; Lange, Rom. Alt. i. 591; ii. 566, and opposed by Herzog, Rom. 
 Staatsvtrf. i. 146 f. ; De Sanctis, Storia d. Romani, ii. 29. 
 
 * Plut. Ti. Gracch. 15; Mommsen, Rom. Staatsr. ii. 287, a. I. The fictitious 
 character of the legal basis on which the plebeians are represented as acting in this 
 early period of their history may be illustrated, as Mommsen, Rom. Staatsr. ii. 299, 
 n. 3, has pointed out, by their assumption of the agrarian proposal of Sp. Cassius as 
 one of their fundamental principles, the application of which neither magistrates nor 
 private individuals were at liberty to impede; cf. Livy ii. 54, 61; Dion. Hal. ix. 37, 
 54; Schwegler, Rom. Gesck. ii. 480, 531, 567. The fault is not all with the annalists. 
 
 6 P- 274- 
 
266 THE ROMAN ASSEMBLIES 
 
 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 pre- 
 served should be credited to the orderly character of the great 
 mass of citizens. 
 
 Applied to the holding of contiones and comitia, this inviola- 
 bility protected the presiding tribune from interruption, contra- 
 diction, and every disturbance. The principle was afterward 
 extended to verbal abuse anywhere publicly indulged in. 1 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. 2 Under normal conditions, however, the rigor- 
 ous 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 formu- 
 lated in an alleged Icilian plebiscite of the year 492. 3 From 
 what has just been said it is clear that the tribune's coercive 4 
 and judicial functions resulted, not from usurpation as has often 
 been asserted, 5 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 
 
 1 Livy, ep. lviii ; Plut. 77. Gracch. 10. 2 Plut. C. Gracch. 3. 
 
 8 Dion. Hal. vii. 17. 5 : Ati/uipxov yv&Fqv iyopeiovros iv drf/up /tijSeis Xcy^tw 
 fitlSky imvrlov /i-qBe fieroXafietTW rbv ~Kbr/ov. 'E4v Si Tts Trapk Tavra iro«7<rjj, SiSira 
 rots 8i)ftdpxots iyyvriras alrr/Scis els inTiaiv fls &i> iiriBuunv airSi fa/das. 'OSe/iij SiSois 
 iyyvfirijv Sa.vi.rif (inuoiaBu, Kal tA xP^f iaT ' aflrou lepi. carta, tun S' &.pApia$T)Toiv- 
 tuv vpbs rairas rds fi)/i(as a! Kpiaeis iaruaav M tov JtJ/iod ; cf. x. 32. I ; 42. 4. 
 Although we may feel uncertain as to the author and the date of this plebiscite, we 
 need not doubt its existence, especially as the principle it contains is derived from 
 leges sacratae by Cicero (5«/. 37. 79; cf. Pliny, Ep. i. 23), and was often put into 
 practice; Livy iii. 11. 8; xxv. 3 f.; Dion. Hal. x. 41 f.; Cic. Inv. ii. 17. 52; Val. 
 Max. ix. 5. 2 ; (Aurel. Vict.) Vir. III. 65; cf. Mommsen, Rom. Staatsr. i. 260 n. 2; 
 ii. 289, 11. 1 ; Lange, Rom. Alt. i. 602 f. ; ii. 567. For the state, however, it had no 
 more validity than had the original lex sacrata, of which the so-called Icilian plebi- 
 scite was an expansion. 
 
 4 Gell. xiii. 12. 9 : "Tribuni, qui haberent summam coercendi potestatem." 
 
 6 Cf. Mommsen, Rom. Forsch. i. 179 ; Ihne, in Rhein. Mus. xxi (1866). 174. 
 
COMITIA TRIBUTA, TO 449 267 
 
 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 myth- 
 ical ; 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 Cori- 
 olanus, the accused, had advocated in the senate the abolition 
 of the tribunician office, 1 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 offi- 
 cials. Instead of declaring him a homo sacer, a tribune brought 
 him to trial before the tribes, which condemned him by a narrow 
 majority. 2 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. 3 
 
 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. 4 
 After providing sureties the accused went into exile, 5 and the 
 sentence of banishment was passed — in Cicero's opinion by the 
 comitia centuriata, in Livy's by the tribal comitia of plebs, 46 1. 6 
 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. 7 Naturally 
 
 1 Mommsen, Rom. Staalsr. ii. 299, a. 1, expresses the opinion that the original 
 form of the story represented Coriolanus as consul proposing a law for the abolition 
 of the tribunate. 
 
 2 Dion. Hal. vii. 20-67, especially 59. 9 f.; 65; Livy ii. 34 ff. ; Plut. Cor. 16-20; 
 Lange, Rom. Alt. i. 605 ; ii. 565. 8 P. 56, n. 4, 270 f. 
 
 4 Livy iii. II. 8 f.; Dion. Hal. a. 5 ff. 6 Livy iii. 13. 8; Dion. Hal. x. 8. 3. 
 
 6 Livy's idea that this assembly met in the Forum (iii. 13. 8) is sufficient evidence 
 of his point of view. Cicero's opinion {Dom. 32. 86 ; cf. Sest. 30. 65) maybe biassed 
 by his personal feelings; p. 268, n. 6. 
 
 'Dion. Hal. x.41 f. Various attempts of tribunes in this period to punish retired 
 magistrates for abuse of office are also alleged by the ancient writers; cf. p. 264. 
 
268 THE ROMAN ASSEMBLIES 
 
 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 sa- 
 crosanctitas, so far as it existed, 1 might protect the person of the 
 tribune, it gave him no authority over a patrician ; 2 and their po- 
 sition as the sole holders of political power and the sole reposito- 
 ries of law and usage enabled them before the decemviral legis- 
 lation by stubborn, skilful perseverance in the details of political" 
 warfare almost to throw the tribunician sanctity into oblivion. 3 
 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. 4 Dio Cassius 5 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 recog- 
 nized 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 ap- 
 pealed 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 affect- 
 ing the caput of a citizen should be brought only before the 
 comitiatus maximus — evidently the comitia centuriata. 6 
 
 1 P. 265 f. 2 Livy ii. 35.3 ; cf. 56. n(, » Livy iii. 55. 6. 
 
 4 Livy ii. 54. 6 Frag. 22. I. 
 
 6 P. 241 ; cf. also Herzog, Rom. Staatsverf. i. 157. A far different view as to the 
 form of assembly which received appeals in tribunician capital cases is represented 
 by Cicero, in whose opinion the comitia centuriata were established as the sole power 
 to judge concerning the caput of a citizen even in pre- decemviral time by the leges 
 sacratae (Stst 30. 65) ; and accordingly he believes that the sentence of exile was 
 passed on Kaeso Quinctius by that body (Dom. 32. 86). But in this opinion Cicero's 
 personal bias already referred to (p. 267, .1. 6) cannot be neglected : in discrediting 
 
COMITIA TRIBUTA, TO 449 269 
 
 If the tribunes presumed to condemn men to death, they cer- 
 tainly 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. 1 In the opinion of Dionysius 2 
 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 pro- 
 posers may not have so intended it. 8 
 
 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 govern- 
 ment though probably not recognized by it as just or constitu- 
 tional. For the same period their method of agitation by the 
 obstruction of the levy,* by haranguing the people in contiones, 8 
 and occasionally by sedition, proves clearly the lack of legisla- 
 tive 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, 
 
 the decree of exile passed against himself by the tribal comitia, it was agreeable to 
 his purpose to deny that this assembly ever had enjoyed such competence. The 
 view given in the text, represented by the annalists and confirmed by a law of the 
 Twelve Tables, is obviously preferable. 
 
 1 Cic. Rep. ii. 35. 60; Gell. xi. 1. 2 f.; Fest. 202. II; 237. 13; ep. 144; cf. 
 p. 233 above. Dionysius, x. 50. I f., wrongly gives two cattle and thirty sheep as 
 the maximum. 2 X. 50. I f. 
 
 8 With less probability Latige, Rom. Alt. i. 620; ii. 576 (., regards it as a conces- 
 sion to the plebs to satisfy their craving for the limitation of the consular power by 
 written law. 
 
 4 Livy ii. 43. 3; 44. 6; Dion. Hal. viii. 87. 4; ix. 5. 1; 18. I; x. 26. 4; Dio 
 Cass. Frag. 22. 3; Zon. vii. 17. 7. 6 Livy iii. 11. 1. 
 
270 THE ROMAN ASSEMBLIES 
 
 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 ren- 
 dered himself liable to tribunician prosecution. 1 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 compe- 
 tence 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. 2 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 com- 
 pel them to bring it before the centuriate assembly in regular 
 form. 3 
 
 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, 4 which however may not have been free from agita- 
 tion of the kind. 
 
 A law of the year 471 gave the tribunician assembly a tribal 
 organization. This measure, brought about by the agitation of 
 
 1 Mommsen, Rom. Staatsr. ii. 297. 
 
 2 The veto of governmental acts, assigned them for the pre-decemviral period by 
 the historians (cf. Livy ii. 44), is therefore an anachronism. The very fact men- 
 tioned by Livy, in the chapter here cited, of the patrician attempt to win as many 
 tribunes as possible points to obstruction rather than to the veto as their weapon. 
 The increase in the number of tribunes from two to ten indicates the same condi- 
 tion. 
 
 8 Cf. Herzog, Rom. Staatsverf. i. 157. 
 
 4 Cf. Livy ii. 42. 6; 43. 3; 44. i; 48. 2 f.; 52. 2 f.; 54- 2; Dion. Hal. viii. 87. 
 4f.; ix. 5. 1; 37. I f. 
 
COMITIA TRIBUTA, TO 449 27! 
 
 Tublilius Volero, tribune of the plebs of that year, 1 must, for 
 the reason above mentioned, have been an act of the comitia 
 centuriata. 2 The motive given by Livy was the desire of the 
 tribunes to free themselves from the influence which the patri- 
 cians through the votes of their clients exercised on the assem- 
 bly. 3 The curiae contained all the citizens, 4 the tribes none but 
 the landowners. The tribal organization, therefore, excluded 
 not all the clients but those only, together with any other citi- 
 zens, who were landless. 6 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 6 that the 
 essence of the change from the curiate to the tribal comitia con- 
 sisted in the elimination of auspical influence. That the law 
 forbade the patricians to take part in tribunician assemblies, as 
 Zonaras 7 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. 8 In 
 fact we have evidence of the presence of patricians in tribuni- 
 cian assemblies after this date. 9 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. 10 
 
 The statute of 471 imparted to the tribunician assembly no 
 new function. Although in mentioning the bill Dionysius 11 
 includes a proposal to grant the assembly legislative power, 
 
 1 Livy ii. 56. 2 : " Rogationem tulit ad populum, ut plebei magistrates tributis 
 comitiis fierent." 
 
 2 The senate gave its consent; Livy ii. 57; Dion. Hal. ix. 49. 3 f. 
 
 8 Livy ii. 56. 3 : " Haud parva res sub titulo prima specie minime atroci fereba- 
 tur, sed quae patriciis omnem potestatem per clientium suffragia creandi quos vellent 
 tribunos auferret "; cf. Dion. Hal. ix. 41. 5. 
 
 4 That the ancients had this conception of the curiate assembly which elected 
 tribunes cannot be doubted; p. 24, 32; cf. Mommsen, Rom. Forsch. ii. 283, n. I. 
 6 P. 54, 60 f. 
 
 6 IX. 49. 5; cf. 41. 3. Patrician magistrates auspicated their comitia, plebeian 
 magistrates did not; p. 104. 
 
 7 VII. 17. 6: Kal rives run Sim&pxuv SXka re kotA tu>v eiwa.Tpi.8tZv avviypatpav, 
 Kal t6 i£etvai tQ »rXi}0« Kal Ka$' iavri avvitvai Kal ivev ixetvuv f5ov\tvea8ai xal 
 XpiHxnTlcai irdva" Saa 4c iBeXfay ;'cf. Livy ii. 60. 4 f. 8 Livy ii. 56. II f. 
 
 9 Livy iii. 11. 4; vi. 35. 7; Dion. Hal. x. 3. 5; ch. 4; 40. 3 f.; 41. 
 
 10 P. 300 f. " IX. 43. 4. 
 
272 THE ROMAN ASSEMBLIES 
 
 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. 1 
 
 In the same year four tribunes of the plebs were elected for 
 the first time. 3 The increase was probably effected by an article 
 of the statute under discussion. 
 
 Till after the decemviral legislation the comitia tributa, a 
 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 4 and condemnations 
 of retired magistrates. 5 In reality the only political weapon of 
 the tribunes, aside from general agitation, continued to be the 
 obstruction of the levy, 6 as is proved by their increase in 
 number to ten. 7 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. 8 The very cir- 
 cumstance that this mild concession to the plebs was couched 
 
 1 Dion. Hal. ix. 49. 5; Livy ii. 56. 2; Dio Cass, xxxix. 32. 3; Suet. Caes. 76; cC 
 Herzog, Rom. Staatsverf. i. 799, n. 2. 
 
 2 Diod. xi. 68. 8 : 'E» tj 'P<i/*fl t6tc irpiirus KareaTi.St\<ra.v 8-fi/xapxoi rerrapes, 
 Tdios SiWxios Kal AeiKtos Neperiipios, irpis di toAtois Mdpicos AouiWios nal Sir6piot 
 'AiclXtos. Livy, ii. 58. I, following Fiso, supposes that the number was now increased 
 from two to five. Dio Cassius probably placed the increase from five to ten at this 
 date ; Zon. vii. 15. 1; 17. 6 ; Dio Cass. Frag. 22. I. In the opinion of Meyer, in 
 Hermes, xxx (1895). 1-24; Gesch. d. Alt. v. 141 f., the plebeian tribunate was in- 
 stituted at this time and the original number was four ; cf. p. 55, n. 1 above. But 
 Diodorus does not say so ; indeed his grouping of the four tribunes in pairs suggests 
 a doubling — a fact which he has perhaps condensed from his source. 
 
 8 It has been shown above (119 ft, 126 ff.) that the assembly of tribes under tri- 
 bunician presidency is rightly so designated. 
 
 4 Livy ii. 61. 1 ; 63. 2 ; iii. I. 2 f. ; Dion. Hal. ix. 51 f. 
 
 6 Livy iii. 31. 5 f. (454) ; Dion. Hal. x. 34 f., 42, 48 ; Pliny, N. H. vii. 28. 101.. 
 
 6 Livy iii. 10 ; 25.9; 30. 5 ; Dion. Hal. x. 15. 3; 20. 4; 26. 4; Dio Cass.. 
 Frag. 21. 
 
 7 Livy iii. 30. 5 ; Dion. Hal. x. 30. 6 (457). The object, as stated by Livy, was 
 increased protection for the commons. Any enlargement of the number after they 
 had acquired the veto would have been a positive disadvantage ; Herzog, Rom- 
 Staatsverf. i. 161 ; cf. above p. 270, n. 2. The change was made with the consent 
 of the senate, doubtless through a centuriate law. 
 
 8 P. 233, 265, n. 1 (3). 
 
COMITIA TRIBUTA, TO 449 273 
 
 in a lex sacrata 1 shows how little faith the commons had in the 
 government. 2 
 
 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. 3 These acts imply legislative as 
 well as administrative competence. Foreign affairs, 4 including 
 the decision of war and peace, were in its hands. It resolved 
 not to restore the property of the Tarquins, 5 decreed triumphs 
 to victorious generals, 6 the celebration of games, 7 the expulsion 
 of the Volscians from the city in the time of a festival, 8 con- 
 trolled the magistrates, including the plebeian tribunate, by 
 means of the dictatorship, 9 or clothed the consuls with absolute 
 authority. 10 Little room was left for the activity of the assem- 
 blies. 
 
 Notwithstanding these unfavorable conditions the tribunes of 
 the plebs through obstruction of the levy and through their ha- 
 rangues in contiones 11 were chiefly instrumental in bringing about 
 the institution of the decemviri legibus scribundis. Actual votes 
 in tribunician comitia on proposals looking to that end 12 could 
 have had no more than moral weight. Under popular pressure 
 the consul Sestius, 452, referred the question to the senate, 13 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, 11 and the quasi-judicial decision 
 
 1 P. 265, 11. I (3). a Herzog, Rom. Staatsverf. i. 170. 
 
 8 Livy. ii. 9. 6. Even if these acts are not historical, there can be no doubt that 
 the senate had the power which they imply. 
 
 4 Cf. Livy ii. 15. if. 6 Livy ii. 3. 5 ; 5. 1. 
 
 •Cf. Livy iii. 70. 14. 7 Livy ii. 36. 1 ; 37. I. 
 
 8 Livy ii. 37. 8. • Cf. Livy iii. 21. if. 
 
 10 Livy iii. 4. 9 (464). As long as the dictatorship was in use (till near the end 
 of the third century B. c.) there was no need of resorting to this measure, although it 
 cannot be doubted that the senate had the right. u Cf. Livy iii. II. I. 
 
 M Livy iii. II. 4; 14. 5 ; 16. 6; 17. 4; Dion. Hal. x. 3. 3 f. ; 4. 2. 
 
 18 Livy iii. 33. 4 ; Dion. Hal. x. 55. 3 ; p. 233 above. 
 
 M Cf. Livy ii. 58. I ; iii. 24. 9 ; 30. 6. 
 
 T 
 
274 THE ROMAN ASSEMBLIES 
 
 of cases appealed to it by those who were accused of violating 
 the tribunician sanctity. 1 
 
 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 2 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. 3 According to Livy, 4 who 
 here represents the tribunician point of view, the original lex 
 sacrata, passed on the Sacred Mount, was first renewed with ap- 
 propriate ceremonies, thus reestablishing the religious inviola- 
 bility, of_t he plebe jan_ official s, whom then the article of the 
 Valerian-Horatian statute here mentioned rendered legally in- 
 violable. 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, cloth- 
 ing them thus in the same kind of inviolability as that which 
 protected the ordinary magistrates. 5 The object, according to 
 this view, was not only to eliminate from the government the 
 anomaly of a power sanctioned by religion only, 6 but also to 
 convert the plebeian officials into state officials. The leaders of 
 the plebs gladly accepted the new position tendered them, with- 
 out being willing however to withdraw from the old. Hence- 
 forth we have to deal, accordingly, with a group of legally rec- 
 ognized 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 
 
 1 Cf. p. 264 ff. 2 p. 234. 
 
 3 Livy. iii. 55. 7 ; cf. p. 264. * Ibid. § 6 f . 
 
 6 Livy iii. 55. 8 ff.; cf. Cic. Bali. 14. 33; Tull. 20. 47; Appian, B.C. ii. 108. 
 453; Mommsen, Rom. Staatsr. ii. 303 with notes. 
 6 Plut. Ti. Gracck. 15. 
 
COMITIA TRIBUTA, TO 449 275 
 
 should be valid for the people " ; 1 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 simi- 
 lar to a provision of the later Publilian and of the still later 
 Hortensian statute that we should incline to reject it as an an- 
 ticipation 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. 2 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. 3 Diony- 
 sius * 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 5 thinks of them as still present 
 in the tribunician meetings as late as the struggle for the Licin- 
 ian-Sextian laws. The problem must be considered in connec- 
 tion with the development of the voting function of the assembly. 
 Primitively the leaders (nobles) in council decided upon a meas- 
 ure, which they then submitted to the people to be accepted 
 
 1 Livy iii. 55. 3 : " Cum velut in controverso iure esset, tenerenturne patres plebi 
 scitis, legem centuriatis comitiis tulere, ut quod tributim plebis iussisset, populum 
 teneret, qua lege tribuniciis rogationibus telum acerrimum datum est"; cf. 67. 9; 
 Dion. Hal. xi. 45. 1. 
 
 2 On the tribunician legislation of the period 449-339, see p. 292 ff. 
 8 P. 271. 
 
 4 XI. 45. 3 : El/njrai di Kal irpSrepov, 6ti iv /liv Tats 0vXeTiKats iKK\i)<rlais ol 
 SijfiOTiKol Kal TrtvTjTts inpaTovp r&v iraTpiicLiiiv. 
 
 6 VI. 35. 7 : " Qui (patres) ubi tribus ad suffragium ineundum citari a Licinio 
 Sextioque viderunt, stipati patrum praesidiis nee recitari rogationes nee sollemne 
 quidquam aliud ad sciscendum plebi fieri passi sunt." When the tribes were again 
 called for voting, the dictator, accompanied by a crowd of patricians, took a seat in 
 the assembly and supported the tribunician protest ; Livy vi. 38. 5 ff. On another 
 occasion some years earlier the patres old and young came into the Forum, and tak- 
 ing their places in the several tribes, appealed to their tribesmen to vote against the 
 proposal of the tribunes; Livy v. 30. 4 f. Still earlier C. Claudius and other senior 
 patricians spoke in a tribuncian assembly against the measure then before the plebs. 
 Soltau's objection (Jlerl. Stud. ii. 47) to the interpretation here represented has little 
 weight, as it rests upon the theory that from the beginning everything was carefully 
 defined and regulated by law. 
 
276 THE ROMAN ASSEMBLIES 
 
 with clamor and din. 1 Although the acclamation was essen- 
 tially an act of the masses, nothing forbade the nobles to join 
 in the shouting. Doubtless in the tribal assemblies the expres- 
 sion of opinion within the tribe continued for a time to be by 
 acclamation. 2 As long as this primitive condition existed, a dis- 
 tinction 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; 3 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. 4 
 Much less could they exclude the nobles. If the presiding trib- 
 une 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 pa- 
 tricians 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 
 
 !P. 153, 156 f. » P. 157,211. ! P.2ii. * p. 271, n. 3. 
 
COMITIA TRIBUTA, TO 449 277 
 
 to exclude them, attempted to establish the principle that tribu- 
 nician assemblies were exclusively plebeian. This question was 
 settled by the law of Publilius Philo, 339. 1 
 
 This article of the Valerian-Horatian statute was a con- 
 cession extorted from the patrician government by the strongest 
 pressure, perhaps by a plebeian secession. The actual ad- 
 vantage 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. 2 The patricians could urge in support of this ar- 
 rangement that as their magistrates according to long estab- 
 lished 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, 3 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 as- 
 sumed by the sources for the following period.* The same 
 
 1 P. 300 f. 
 
 2 Mommsen, Kom. Staatsr. iii. 157, regarding the alleged pre-decemviral plebi- 
 scites as genuine acts of the plebs, believes that this conditioned validity of such 
 acts was established at some unknown time prior to the decemvirate. The view of 
 Herzog that certain statutes termed plebiscites in the sources were in reality cen- 
 turiate laws is accepted in this chapter. " P. 235. 
 
 4 Livy iii. 55. 15; iv. 6. 3 (Canuleian plebiscite); 12. 8 (for the election of a 
 prefect of the market, 440) ; 49. 6 (" Temptatum ab L. Sextio tribuno plebis, ut 
 rogationem ferret, qua Bolas quoque sicut Labicos coloni mitterentur, per inter- 
 cessionem collegarum, qui nullum plebi scitum nisi ex auctoritate senatus passuros 
 se perferri ostenderunt, discussum est," 415); 51. 2 f. (413); vi. 42.9 (Licinian- 
 
278 THE ROMAN ASSEMBLIES 
 
 thing is clearly implied, too, in the long series of political 
 struggles which came after the enactment of the Valerian- 
 Horatian statute. 1 Had the tribunes been free to legislate with- 
 out 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). 2 
 
 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. 3 We 
 cannot look upon these officials as keepers of the senatorial 
 
 Sextian plebiscite); vii. 15. 12 f. (law against bribery, 356); 27. 3 (347); viii. 23. 
 1 1 f. (the plebiscite for prolonging the consular imperium, 327) ; *.. 6. 9 (Ogulnian 
 plebiscite, 300); 21. 9 (plebiscite ordering the praetor to appoint triumviri for con- 
 ducting colonies, 296). Cf. also Dion. Hal. x. 26. 4 f. (457); 30. I; 48. I (454); 
 50.3; xi. 54. 4 (444); Mommsen, ^ow, Forsch. i. 208 ff. All the citations from 
 Dionysius, excepting the last, refer to pre-decemviral time, and hence are anticipa- 
 tions of a later condition. 
 
 The first triumph by order of the people, without the consent of the senate, ac- 
 cording to Livy iii. 63. 11 (cf. Dion. Hal. xi. 50. 1), took place in 449. It is to be 
 noticed, however, that a magistrate always had a right to triumph without permis- 
 sion either of the senate or of the people (Mommsen, Rom. Forsch. i. 214 f.), pro- 
 vided he paid his own expenses; Polyb. vi. 15. 8; Livy xxxiii. 23. 8. The resolu- 
 tion of the people on this occasion, if historical, may have been a mere pledge of 
 sympathy and confidence; cf. p. 293. But Herzog, Rom. Staatsverf. i. 194, doubts 
 its reality. 
 
 The " ancient law long ago abolished," which required the consent of the senate 
 to proposals brought before the people, and which Sulla is said to have renewed 
 (Appian, B. C. i. 59. 266; cf. p. 406), is ordinarily referred, as by Mommsen, 
 Rom. Staatsr. iii. 158; Herzog,, Rom. Staatsverf. i. 193, to the condition on the 
 validity of the plebiscite under discussion. Appian may have had this restriction in 
 mind, for we know at least that under the constitution as reformed by Sulla the 
 tribunes did propose laws de senatus sententia; CIL. i. 204 (year 71); Bruns, Font. 
 Iur. 94; Girard, Textes, 66; Lange, Rom. Alt. iii. 154; Mommsen, Rom. Staatsr. 
 iii. 158; Frohlich, in Pauly-Wissowa, Real-Encycl. iv. 1559. 
 
 1 Cf. Mommsen, Rom. Staatsr. iii. 157. 
 
 2 Lange's idea {Rom. Alt. ii. 619; cf. i. 611, 614, 642) that there was no statute 
 which made the consent of the senate essential to the validity of the plebiscite does 
 not appear to be well considered. Had the tribunes not been bound by written 
 enactment, they would have felt themselves free to legislate without the senate's 
 cooperation, and even the law they tried in vain to disregard. 
 
 8 Livy iii. 55. 13. 
 
COMITIA TRIBUTA, TO 449 279 
 
 archives of that time, 1 and hence must conclude that the docu- 
 ments in their charge were those decrees which authorized the 
 presentation of tribunician bills, for with those alone the plebe- 
 ians were directly concerned. 
 
 The patricians expected to find a further safeguard in the 
 tribunician veto, which could be directed against a colleague. 2 
 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, 3 we must infer that as 
 yet their intercession did not prevail against a patrician magis- 
 trate. 4 Various popular seditions, too, are mentioned for the 
 same period (449~287). 5 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. 6 Livy 7 reports that in 293 
 
 1 Cf. Mommsen, Rom. Staatsr. iii. 1 58. 
 
 2 Diod. xii. 25. 3 : 'Eav Si 0! i-q^apx 01 M>? <rvti<pup£>ai lrp&s oXXtjXous, nipiot efwu rbv 
 &v& fUaov Kcl/ievov nr) K<a\ietr$cu ; Livy iv. 48. 10-16 (416) ; 53. 6; v. 25. I (395) ; 
 vi. 36. 8; 37. 3; 38. 5. The same passages show the dependence of the govern- 
 ment upon the tribunes for checking innovations. 
 
 8 Livy iii. 69. 5 (.; iv. i. 6; 30. 15; 53. z, 6 (407); 55. 1-5 (406); 60. 5 (403); 
 v. 12. 3. 7 (397); «. 27. 9 f. (376); 31. 4 (cf. 31. I f., year 374); vi. 36. 3 f.; 
 Dion. Hal. xi. 54. 3 (444). 
 
 4 It is true that Livy (iv. 50. 6, 8; 56. 10-13, vear 4°8; v. 9. 4 ft., year 402; vi. 
 35. 9) assigns the tribune this right; but on one occasion (vii. 17. 12, year 356) he 
 informs us that such a protest was disregarded by the magistrate. We may suppose 
 that in this period they often attempted the power, but usually without success. 
 They possessed a growing influence in the right to address the people, which must 
 often have added an overwhelming force to their protests; cf. Livy iv. 25. I (434); 
 58. 14 (406) ; v. 2. 2 ff. (403) ; ch. 6 (403). This kind of obstruction may be meant 
 by Livy iv. 36. 3 (424); 43. 3 (421); v. 17. 5 (397); vii. 21. 1 ff. (353). The gov- 
 ernment, on the other hand, continued to use the levy for the obstruction of tribuni- 
 cian bills; Livy iv. 55. 1 (409); v. 11. 9 (401). 
 
 6 The principal recorded seditions are (1) the revolt against the decemvirate in 
 449 (Livy iii. 50 ff.) ; (2) a plebeian secession to the Janiculum in the struggle for 
 the Canuleian law (Florus i. 25); (3) a state of anarchy in 376 (Diod. xv. 61. 1), 
 which, according to Matzat {Rom. Chron. ii. no), lasted about four months; (4) a 
 state of anarchy in the struggle for the Licinian-Sextian laws (Diod. xv. 75. 1; 
 Livy vi. 35. 10), which, according to Matzat (ibid. ii. 112), continued three years, 
 376-373; (5) a secession of the plebs to the Janiculum in the struggle which 
 resulted in the Hortensian legislation, 287 (Livy, ep. xi; Dio Cass. Frag. 37; Zon. 
 viii. 2. 1). • P. 104, no, 116 f. 7 X. 47. 1. 
 
28o THE ROMAN ASSEMBLIES 
 
 the tribunes resigned because of a faulty election, held prob- 
 ably 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). 1 It had 
 the advantage of the comitia centuriata (1) in freedom from the 
 imperative 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 compo- 
 sition, 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 per- 
 mission 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 forc- 
 ing 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 enlarg- 
 ing the field of its activity. 
 
 The following literature is for the whole period from 449 to 287. 
 Schulze, C. F., Volksversammlungen der Romer, 341-70 ; Hiillmann, K. D., 
 Staatsrecht ties Altertums, 354-67 ; Niebuhr, B. G., Romische Geschichte, i. 
 
 'P. n6f. 
 
COMITIA TRIBUTA, TO 449 281 
 
 624 ff., Eng. 283 fF. ; see also index, s. Tributcomitien ; Schwegler, A., Rom. 
 Geschichte, see index, s. Tributcomitien; Mommsen, Th., Rom. Staatsrecht, 
 iii. 300 fF. ; Rom. Forschungen, i. 151-66; Rom. Strafrecht, 462-8, 473-8, 
 1014-6, et passim ; Ihne, W., History of Rome, bk. VI. chs. i, viii ; Ueber 
 die Entstehung und die altesten Befugnisse des rom. 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., 
 Rom. Altertumer, i. 586-681, 821-56; ii. 459-94, 533-42, 565-97, 613-42; De 
 legibus Porciis liber talis civium vindicibus, in Kleine Schriften, i. 342-429; 
 De plebiscitis Ovinio et Atinio disputatio, ibid. ii. 393-446 ; Ueber das poete- 
 lische Gesetz de ambilu, ibid. ii. 195-202 ; Kleineidam, F., Beitr. a. 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. rom. 
 Slaates, i. 234-46; Voigt, M., XII Tafeln, i. 683-90; Karlowa, O., Rom. 
 Rechtsgeschichte, i. 409 ; Girard, P. F., Histoire de ^organisation judiciaire des 
 Romains, i. 149-59, 2 37 ^- i Puchta, G. F., Cursus der Institutionen, i. (10th 
 ed. 1893) 166-9 ( on l ex an d plebiscite) ; Mispoulet, J. B., Institutions poli- 
 tiques des Romains, i. 207-30; Etudes d 'institutions Romaines, 66-81 ; Wil- 
 lems, P., Droit public Romain, 160 fF., 173 fF. ; Greenidge, Legal Procedure 
 of Cicero's Time, 327-49 ; Herzog, E., Geschichte und System der rom. Staats- 
 verfassung, i. 153 fF., 189-96, 216 fF., 248-64, 279-88, 1128-88; Glaubwurdig- 
 keit 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 rlpublique Romaine, 75 fF. ; Borgeaud, C, 
 Histoire du plebiscite, 57-76, 117-67; Hallays, A., Cornices a Rome, ch. iii; 
 Morlot, E., Cornices Hectoraux sous la rlpublique Romaine, ch. iv ; Ptaschnik, 
 J., Die Wahl. der Volkstribunen vor der Rogation des Volero Publilius, in 
 Zeitschr. f. osterreich. 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 475 U. C. ibid, xxiii (1872). 241-53 ; Slimm- 
 recht der Patricier in den Tributcomitien, ibid, xxxii (1881). 81-102 ; Ruppel, 
 K. W., Teilnahme der Patrizier an den Tributkomitien ; Soltau, W., Giiltig- 
 keit der Plebiscite, in Berliner Studien, ii (1885). 1-176; Clason, D. O., 
 Kritische Erorterungen fiber den rom. Staat, 30-9 ; Schmidt, J., Die Einsetzung 
 der rd>n. Volkstribunen, in Hermes, xxi (1886). 460-6; Meyer, E., Der Ursp- 
 rungdes Tribunats und die Gemeinde dervier 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., Dorigine e I'elezione dei tribuni e degli 
 edili della plebe con un indict alfabetico dei loro nomi; Podesta, G., II tribu- 
 nato della plebe in Roma dalla secessione sul monte sacro all' approvazione della 
 legge di Publilio Volerone; Eigenbrodt, A., De magistratuum Romanorum 
 iure inter cedendi ; Ackermann, H., Ueber die raiimlichen Schranken der 
 tribunizischen Gewall; 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 
 
282 THE ROMAN ASSEMBLIES 
 
 Pauly-Wissowa, Real-Encycl. i. 448-64 ; Humbert, G., Aedilis, in Daremberg 
 et Saglio, Diet. i. 95-100 ; Bloch, L., Die standische und soziale Kamfife in der 
 romischen 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 lots agraires sous la repub- 
 lique Romaine, pt. I. chs. i-iii ; De Sanctis, G., Storia dei Romani, I. chs. xiii, 
 Jtiv, 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. 1 Defensive 
 wars in behalf either of Rome or of an ally were regularly 
 decided upon by the senate; 2 and the question whether the 
 war was necessary for the safety of the state admitted of a 
 broad interpretation. 3 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, 4 
 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 ; 5 and at the close of a conquest 
 the senate disposed of the acquired territory and population. 6 
 Through its authority alone, till 332, the censor bestowed the 
 perfect or the limited citizenship. 7 
 
 1 P. 230. 
 
 2 Cf. Livy vi. 3. 2 (389); 33. 7 f. (377); vii. 19. 7 (353). 
 
 8 Livy vi. 14. I : "Dictator . . . mini me dubius bellum cum his populis patres 
 iussuros" (385). In 381 the senate decreed that the Tusculans should be punished 
 with war (Livy vi. 25. 5), no mention being made of the people; and the declara- 
 tion of war against the Latins in 340 appears to have been merely acclaimed by 
 the people who chanced at the time to be in front of the senate-house; Livy 
 viii. 6. 4-8. 4 Livy v. 49. 2 (390). 
 
 6 Livy iv. 58. 1 f.; v. 28. 5 (394); 50. 3 (390); vi. 10. 9 (382); vii. 19. 4 (353); 
 22- 5 (350; 38- 1 (343); viii. 2. 1 (341); 19. 1-3 (330); *. 11. 13 with 12. I, 13 
 (298); 45-4ff- (293); P-3°2. 
 
 6 Livy viii. 11 f., 14 (340, 338). It punished for revolt; ibid. viii. 20. 7 (329). 
 
 7 Livy vi. 26. 8; viii. 11. 16; p. 304. 
 
 283 
 
284 THE ROMAN ASSEMBLIES 
 
 In the affairs of peace it retained almost as absolute power 
 of administration as in the preceding period. 1 We find it, 
 accordingly, authorizing a magistrate to vow games and the 
 erection of a temple in the event of victory, 2 providing for 
 the restoration of the city after the Gallic conflagration, 3 for 
 the building of temples, 4 introducing pay for military service, 5 
 levying the taxes, 6 dividing the public lands among the citizens, 7 
 founding colonies, 8 and recalling under penalty of death those 
 who without permission had gone out to colonize a captured 
 city, 9 directing the appropriate college to consult the Sibylline 
 books, 10 and ordering the aediles to take measures against the 
 inroad of foreign superstitions, 11 and the consuls to punish 
 with rods and beheading the instigators to revolt among the 
 allies. 12 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, 13 who had power to compel the 
 resignation of all other magistrates. 14 Or the senate could 
 directly order the magistrates to retire from office, with or 
 without a scruple as to the auspices. 15 It rewarded successful 
 commanders with triumphs 16 at the expense of the state 17 and 
 in time of especial danger it armed the consuls with absolute 
 imperium. 18 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 
 
 1 p - 2 73- 2 Livy v. 19. 6 (396) ; cf. iv. 27. 1 (431). 
 
 8 Livy v. 50 (390). « Cf.-Livy vii. 28. 5 f. (345). 
 
 6 Livy iv. 59. 11 (406); p. 367. The statement of Diodorus, xiv. 16. 5, that the 
 Romans voted to pay for military service does not necessarily point to an act of 
 the assembly; and the opposition of the tribunes to the measure indicates that at 
 least in Livy's opinion it was an act of the senate alone. 
 
 6 Cf. the tributum for the new wall; Livy vi. 32. 1. 
 
 7 Cf. Livy v. 30. 8 (393); p. 295, 310. 
 
 8 Livy iv. 11; 47. 6; v. 24. 4; 30. 8; ix. 28. 8 (313); Veil. i. 14. 1; p. 310. 
 
 9 L "7 "• 4- S (389)- 10 Livy v. 13. 5 (399). 
 11 Livy iv. 30. 9 (428). 12 Livy x. 1. 3 (303). 
 
 18 Livy iv. 46. 10; 56. 8; vi. 11. 10; vii. 6. 12; 21. 9; vii. 3. 4; viii. 17. 3; 29. 
 9 (32S)- " Livy v. 9. 6 (402). 
 
 15 Livv v - 95 17- 2 f- (397); 31 f- (392, 390; viii. 3. 4 (341). 
 18 Livy viii. 16. n; 20. 7; 39. 15 (322). 
 17 P- 277, n. 4. is Li vy vii Ig 3 ( 3g4 ) 
 
COMITIA TRIBUTA, 449-287 285 
 
 the Valerian-Horatian and the Hortensian legislation will now 
 be followed. 
 
 I. Elective 
 
 Appreciating the great possibilities of the tribunate, the patri- 
 cians 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. 1 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 coopted into the college two patricians of consular rank. 2 
 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 cooptation. The 
 tribune who violated this law was to be burned alive. 3 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 cooptation 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, 4 no result. Probability greatly favors the later date 
 for the law, especially as an instance of cooptation is men- 
 
 iLivy Hi. 54.5,9, 11 (449). 
 
 2 Livy iii. 65. 1 (448). That the cooptation of tribunes was once legal is proved 
 by a formula quoted by Livy iii. 61. 10. That the coopted tribunes were patrician 
 is now generally disbelieved (cf. Herzog, Rom. Staatsverf. i. 195) because it does 
 not accord with the conventional view of a constitution kept in perfect working 
 order from the beginning to the end of Roman history. The irregular is possible 
 and is less likely to be invented. 
 
 8 Livy iii. 65. 1-4; Diod. xii. 25. 3. Diodorus, who mentions the penalty, 
 connects the law closely in time, as does Livy, with the reestablishment of the 
 constitution. 4 V. 10. 11; 11. 1-3. 
 
286 THE ROMAN ASSEMBLIES 
 
 tioned between the two dates; 1 the name of Trebonius or of 
 one or more patricians in the college of 448 2 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, pro- 
 ceeded 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. 3 
 
 In granting the tribal assembly a share in law-making the sen- 
 ate 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 as- 
 sembly for the election of quaestors (447) — previously ap- 
 pointed by the chief magistrates 4 — and afterward of curule 
 aediles (367), 6 military tribunes, 6 and other minor officials. 7 
 
 II. Judicial 
 
 a. TRIBUNICIAN 
 
 By an arrangement referred to in the preceding chapter, 8 
 partly based on the law of the Twelve Tables relating to capital 
 cases 9 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. 10 The tribes punished with fines, the centuries 
 with the extreme penalty — banishment or death, to which was 
 
 1 Livy iv. 16. 3 (439). 
 
 2 Continuous fasti tribunicii, however, did not exist. 
 
 8 Thereafter when a vacancy occurred during the year, it was filled by election; 
 Appian, B. C. i. 13. 54; Plut. Ti. Gracch. 13. 
 
 4 Tac. Ann. xi. 22; Cic. Fam. vii. 30. 1 ; cf. Gell. xiii. 15. 4. 
 
 6 Livy ix. 46. 1 f. ; xxv. 2. 7; Varro, R. R. iii. 17. 1 ; Cic. Plane. 20. 49; Piso, in 
 Gell. vii. 9. j. 6 Sa n. Iug _ 63 _ 
 
 7 Gell. xiii. 15. 4. s P- 28a 9 p 24I> 2&8 
 
 10 Cf. Cic. Le ? . iii. 19. 45; Livy xxvi. 3. This subject is admirably presented by 
 Lange, Rom. Alt. ii. 578-80. 
 
COMITIA TRIBUTA, 449-287 287 
 
 always added total confiscation of property. The prosecutor, 
 accordingly, first thought of the penalty, to which he then at- 
 tempted to adapt the form of action. The people were not 
 guided to their decision by legal formalities and precedents, 1 
 but were often swayed by the emotions of favor and anger. 2 
 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 accord- 
 ingly 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 him- 
 self 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. 3 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 Cras- 
 sus passed a centuriate law establishing a hundred pounds of 
 copper as equivalent to an ox and ten to a sheep. 4 Probably 
 the same law provided that no fine should exceed half the value 
 of the estate on which it was levied. 6 
 
 For the period immediately following 449 the authorities — 
 
 1 Cic. Inv. i. 38. 68. 
 
 2 Cf. Livy v. 11. 4; 12. 2; 29. 6 f.; viii. 33. 17; xxvi. 3. 6. 
 8 Livy xxvi. 3. 6-9; p. 307 f., 322 above. 
 
 4 P. 234, 269 above; Cic. Rep. ii. 35. 60; Livy iv. 30. 3. The equivalents are 
 mentioned in connection with the lex Aternia Tarpeia; Gell. xi. I. 2; Fest. 202. 
 II; 237. 13; ep. 144; Lange, Rom. Alt. i. 622; Herzog, Rom. Staatsvtrf. i. 172, 
 639. The law is no proof of the existence of coins at that time. 
 
 6 Cato, Orig. v. 5; Fest. 246 (lex Silia); Cic. Rep. 35. 60; Livy iv. 30. 3; Kar- 
 lowa, Rom. Recktsgesch. i. 409; Lange, Rom. Alt. ii. 580. 
 
288 THE ROMAN ASSEMBLIES 
 
 uncritically as will soon be made evident — assign to the trib- 
 unes of the plebs a formidable jurisdiction in finable actions, 
 not only over private persons, 1 but also, on account of official 
 misconduct, over functionaries of every grade from ambassa- 
 dors 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. 2 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. 3 In 401 two other retired tribunes with consular 
 power were prosecuted by the tribunes of the plebs and fined 
 each 10,000 asses.* The imposition of a fine on Camillus, 391, 
 has already been considered. 6 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. 6 In 362 the dicta- 
 tor of the preceding year, L. Manlius, was prosecuted by a 
 tribune because, though appointed for the sole purpose of driv- 
 ing the nail, he had nevertheless made a levy of troops and 
 that with extreme cruelty. But the prosecutor dropped the ac- 
 cusation, intimidated by the son of the accused. 7 This is the 
 view of Livy, whereas Cicero 8 states the ground of the charge 
 to have been the addition of a few days to his dictatorship. If 
 
 1 Livy viii. 37. 8 ff . A tribune of the plebs brought before the tribes certain Tus- 
 culans, accused of having incited neighboring states against Rome, 323. They were 
 acquitted; p. 310. 
 
 2 Livy iv. 11. 3-7. This is one of the few prosecutions of inferior officials for 
 maladministration; Mommsen, Rdm. Staatsr. ii. 323, u. 2. The event is too early 
 to be certain. 8 Livy iv. 40. 4; 41. 10 f.; Lange, Rom. Alt. ii. 581. 
 
 4 Livy v. II. 4 ff.; 12. 1. 6 p. 244 f_ 
 
 " Livy vi. 1.6. * Livy vii. 3-3. » Off. ii. 31. 1 12. 
 
COMITIA TRIBUTA, 449-287 289 
 
 historical, the prosecution may possibly have been for perduel- 
 Jio, 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. 1 Evidently the in- 
 tention of the prosecutor was not serious. 2 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 con- 
 tinued 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 3 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. 4 
 
 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. 5 
 This instance, if historical, is the only one of the kind before 
 the revolution. The tribunes doubtless felt that the prosecu- 
 tion 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 pro- 
 hibition of privilegia by a law of the Twelve Tables, Sp. Mae- 
 lius, a tribune of the plebs in 436, tried to carry a resolution 
 for the confiscation of the property of Servilius Ahala ; but the 
 
 1 Livy x. 37. 7; cf. xxix. 19. 6 f.; Mommsen, Rom. Staatsr. ii. 320, u. 3. 
 
 1 Livy x. 46. 16. 8 Livy, ep. xi; cf. p. 306 below. 
 
 4 Livy, ep.xi; Dion. Hal. xvii. 4f.; Dio Cass. Frag. 36. 32. Dionysius states 
 the fine at 50,000 denarii. 
 
 6 Livy v. 29. 6 f. Lange, Rom. Alt. i. 823; ii. 581, looks with suspicion on this 
 case because it is the only one of the kind in the period. Mommsen, Rom. Staatsr. 
 ii. 323, n. 1, considers it an anticipation of the condemnation of the tribunes in 84 
 *or having taken the side of Sulla, 
 u 
 
290 THE ROMAN ASSEMBLIES 
 
 people rejected it. 1 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. 2 It was 
 certainly not supported by a senatus consultum, and probably 
 the proposers had no serious intention of carrying it inta 
 effect. 
 
 In reviewing the finable actions alleged to have been brought 
 by the plebeian tribunes during the two centuries which inter- 
 vened between the institution of their office and the Hortensian 
 legislation, as in the case of the capital actions, 3 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 jurisdic- 
 tion 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, 4 depended upon the two plebeian aediles as- 
 bailiffs for making arrests and for executing sentences. 5 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. 6 The earliest mentioned case, 454, is the triaL 
 and condemnation of a retired consul in a finable action for 
 official misconduct. 7 It should be placed in the same mythi- 
 
 1 Livy iv. 21. 3 f. 2 Livy vi. 38. 9; Hut. Cam. 39. 8 P. 247, 248, n. I, 
 
 4 Cf. Mommsen, Rom. Staatsr. ii. 282, 475. In time the aediles themselves re- 
 ceived viatores through a lex Papiria of unknown date; CIL. vi. 1933. 
 
 6 Dion. Hal. vii. 35. 4; Plut. Cor. 18. For this reason tribunician sentences con- 
 tinued to the end to be executed by a tribune or an aedile; Mommsen, Rom. 
 Staatsr. i. 146. 
 
 6 Dion. Hal. vi. 90. 2; cf. 95. 4; Zon. vii. 15. 10. 
 
 ' Livy iii. 31. 4-6; Dion. Hal. x. 48; Pliny, N. H. vii. 29. 201. 
 
COMITIA TRIBUTA, 449-287 291 
 
 cal category with the numerous tribunician prosecutions of 
 the period. 1 After the institution of curule aediles, 367, the 
 aediles of the plebs continued indeed to serve occasionally as 
 bailiffs of the tribunes, 2 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. 3 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.* 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 ; 6 and two years 
 afterward violators of the same provision were again fined, on 
 this occasion by the curule aediles. 6 Actions against usurers 
 were brought by aediles in 344, 7 304, 8 and 295.® 
 
 Shortly before 328, M. Flavius was prosecuted before the 
 people by the aediles for the crimen stupratae matris familiae, 
 and acquitted. 10 In 295 Q. Fabius Gurges, a curule aedile, 11 
 
 1 P. 264, 272. Mommsen, Rom. Staatsr. ii. 475, n. 3, however, who looks upon 
 it as a legally credible tradition, remarks that the competence of the aediles, at that 
 time coextensive with that of the tribunes, must afterward have been limited by the 
 Twelve Tables. 
 
 2 As in 204, when an aedile was sent to arrest Scipio, should circumstances favor 
 his apprehension: Livy xxix. 20. II; xxxviii. 52. 7. More frequently they exe- 
 cuted the sentence ; p. 290, n. 5. 
 
 8 Livy vii. 16. 9; Dion. Hal. xiv. 12 (22); Pliny, N. H. xviii. 3. 17; Plut. Cam. 
 39; Val. Max. viii. 6. 3. * Livy x. 13. 14; cf. Greenidge, Leg. Proced. 341. 
 
 5 Livy x. 23. 13. We are not informed whether these cases came before the 
 assembly. 6 Livy x. 47. 4. 
 
 7 Livy vii. 28. 9. The rank of the prosecutor cannot be more definitely stated. 
 
 8 Pliny, N. H. xxxiii. (6.) 19. The accuser, Cn. Flavius, was curule aedile; Livy 
 ix. 46. 1. 9 Livy x. 23. II f. The prosecutors were curule aediles. 
 
 10 Livy viii. 22. 3; Val. Max. viii. 1. 7. Fourteen of the twenty-nine tribes then 
 existing had declared against him, when the prosecuting aedile by an unintentional 
 expression turned the vote in his favor. This result is to be explained on the sup- 
 position that the proceedings were at that point interrupted, and the whole vote 
 taken again; Lange, Rom. Alt. ii. 486. 
 
 11 Mommsen, Rom. Staatsr. ii. 493, n. 3; Large, Rom. Alt. ii. 584. From the 
 
292 THE ROMAN ASSEMBLIES 
 
 accused several matrons before the people, also of stuprum, and 
 fined them. 
 
 In the period between the Licinian-Sextian and the Horten- 
 sian legislation, accordingly, the jurisdiction of the aediles, so 
 far as is known, was limited to usury, stuprum, and the viola- 
 tion of laws regarding the occupation and pasturage of the pub- 
 lic 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 equiva- 
 lent, 3020 heavy asses, 1 an appeal could be made to the tribes. 
 The plebeian aediles equally with the tribunes 2 lacked the 
 power to summon patricians, whereas the curule aediles as 
 patrician magistrates 3 possessed the right; but no distinction 
 in the composition of these tribal assemblies, corresponding to 
 the form of presidency, is suggested by the sources. 4 
 
 III. Legislative 
 
 The legislative function of the tribal assembly under tribu- 
 nician presidency after the decemvirate (45 1-450) 6 is represented 
 as bringing forthwith into being the Icilian and Duillian plebis- 
 cites of 449. That of Icilius granted amnesty to those who had 
 seceded from the decemvirs. 6 The first plebiscite of Duillius 
 provided for the election of consuls cum provocatione. 7 Both 
 acts are alleged to have been passed, however, before the reso- 
 lutions of the plebs had acquired the force of law. The second 
 Duillian plebiscite, which followed the enactment of the Vale- 
 rian-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 mag- 
 istrate without appeal. 8 Its first provision was merely the ex- 
 pression of a principle on which the plebeians had from the 
 beginning insisted as essential to the continuance of the office 
 from year to year ; 9 the second clause precluded the recurrence 
 
 nature of the process we infer that it was aedilician; and as the accuser was a patri- 
 cian, his aedileship must have been curule. 
 
 1 P. 233, 269, 287. 2 P. 264. « P. 103. * P. 102, n. I. 
 
 5 P. 273 ff. « Livy iii. 54. 14. ' Ibid. § 15. 8 Livy iii. 55. 14. 
 
 9 Mommsen, Rom. Slaatsr. ii. 279, n. 1, 302. 
 
COMITIA TRIBUTA, 449-287 293 
 
 of an elective magistracy like the decemvirate just past. 1 Ac- 
 cording to Diodorus 2 an agreement was made in this year be- 
 tween 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 assign- 
 ing this provision to so early a date. 3 
 
 For the same year is recorded another Icilian plebiscite, which 
 granted the privilege of a triumph to the consuls after the sen- 
 ate had refused it. 4 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 constitu- 
 tional 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. 5 
 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 ; 6 but the general always had a right to tri- 
 umph, in earlier time within the city and later on the Alban 
 Mount, at his own expense. 7 If the senate decreed the triumph, 
 
 1 We have no means of testing the historical truth of these three alleged plebi- 
 scites. The first Icilian was of transient character, and the first Duillian was un- 
 necessary, though not especially suspicious on that account. The second Duillian 
 represents constitutional principles known to have been early established. They are 
 •doubted by Herzog, Rom. Staatsverf. i. 149 f. 
 
 2 XII. 25. 2. He does not state that this arrangement was embodied in a law, 
 although otherwise it could not have been effective. 
 
 8 Pais, Stor. di Rom. I. i. 558 f. The fact that Fabius Pictor (in Gell. v. 4. 3) 
 places the election of the first plebeian consul in the twenty-second year after the 
 Gallic conflagration indicates (1) that Diodorus did not depend upon Fabius, (2) 
 that Livy's view of this constitutional change is essentially that of Fabius; cf. Pais, 
 ibid. I. ii. 136, n. 2. 
 
 * Livy iii. 63. 8-1 1; Dion. Hal. xi. 50. I; Act. Triumph. Capit., in CJL. i 2 . p. 
 44; cf. Herzog, Rom. Staatsverf. i. 194. 
 
 6 Livy vii. 17. 9; Act. Triumph. Capit., in CIL. i 2 . p. 44. In this case it is pos- 
 sible that the senate for a time resisted, to yield finally under pressure. 
 
 6 Cf. Polyb. vi. 15. 8; Dio Cass. Frag. 74. 2; Lange, Rom. Alt. ii. 623. 
 
 ' Postumius, consul in 294, when refused a triumph by the senate, refrained from 
 bringing the case before the people because he foresaw tribunician resistance, but 
 declared his intention to triumph by right of his consular imperium; Livy a. 37. 
 
294 THE ROMAN ASSEMBLIES 
 
 as remained the rule, 1 ratification by the people was' unneces- 
 sary, though it sometimes occurred. 2 
 
 The Trebonian plebiscite, 448 or more probably 401, has 
 already been discussed. 8 The interest of the plebs in enhanc- 
 ing the dignity and importance of their own order manifested 
 itself not only in this act but also in the Canuleian plebiscite of 
 445, which reestablished conubium between the patricians and 
 plebeians after it had been forbidden by a law of the Twelve 
 Tables. 4 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. 5 
 
 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 quaes- 
 tors. 6 The question before this assembly in 446 was the arbi- 
 tration 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. 7 This act 
 did not serve as a precedent for further interference of the as- 
 
 6-12; Dion. Hal. xvii, xviii. 5. 3 (18); Act. Triumph. Capit. in CTL. i 2 . p. 45. Q. 
 Minucius, consul in 197, when refused by the senate, asserted that he would triumph 
 on the Alban Mount, also by right of his consular imperium and after the example 
 of many illustrious men; Livy xxxiii. 23. 3; CIL. i 2 . p. 48; cf. Mommsen, Rom. 
 Forsch. i. 214 {.; Horn. Staatsr. iii. 134. 
 
 1 P. 273, 284. 2 Cf. Livy iv. 20. 1; vi. 42. 8. 8 P. 285 ; cf. p. 301. 
 
 4 Cic. Rep. ii. 37. 63; Livy iv. 1-6; Flor. i. 17. 25. The commonly accepted 
 theory that this decemviral enactment merely confirmed a custom which had existed 
 from the beginning of Rome is supported neither by the sources nor by a comparison 
 of early usage in other states. 
 
 6 P. 234. 6 P. 286. 
 
 7 Livy iii. 71 f. ; Dion. Hal. xi. 52. Herzog, Rom. Staatsvtrf. i. 198, n. 4, finds 
 difficulties in the details ; but we are not warranted in denying the truth of the 
 event on the ground of irregularity in the proceedings, even while we admit that 
 much is uncertain in the history of the period to which the act is assigned. 
 
COMITIA TRIBUTA, 449-287 295 
 
 sembly in foreign affairs ; and when in 427 the people acquired 
 the right to declare an offensive war, 1 the function fell to the 
 centuries rather than to the tribes. Apart from this gain the 
 comitia made little progress 2 in the period between the Canule- 
 ian and the Licinian-Sextian legislation, 445-367. Few legisla- 
 tive acts of the tribes are recorded : the plebiscite which pro- 
 vided in a time of famine for the election of a prefect of the 
 market, 440 ; 3 the historically questionable plebiscite which 
 forbade candidates for office to whiten their garments, 432 ; 4 
 the plebiscite of 414 for the creation of a special court to try a 
 case of murder ; 6 the act, probably a plebiscite, which forbade 
 a patrician to dwell on the Capitoline, 384. 6 
 
 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 7 are historical. In like manner 
 the leaders of the plebs, as candidates for the consular tribu- 
 nate, are represented as agitating for the institution of pay for 
 military service, the money to be derived from rents of public 
 lands. 8 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. 9 Epoch-making were the Licinian-Sextian laws, 
 
 1 P. 230, 283. 
 
 2 The institution of new offices and the increase in number within existing magis- 
 terial colleges by act of the centuries (cf. p. 234) is merely the application of a long- 
 recognized popular right. 
 
 8 Livy iv. 12. 8. This alleged act of the tribes is suspicious because of its isola- 
 tion ; for in this period offices were instituted by the centuries. It is either excep- 
 tional or an anticipation of later usage ; cf. p. 306. 
 
 * Livy iv. 25. 13 f. The same author, vii. 15. 12 f., states that the first lex de 
 ambitu was enacted in 358 ; p. 296. 
 
 6 Livy iv. 51. 2 f. ; Flor. i. 17. 2 (22); Zon. vii. 20. 5. The act, like that of 
 440, is either exceptional or an anticipation of later usage; cf. p. 309. 
 
 6 Livy vi. 20. 13. The context indicates that in Livy's opinion it was a resolution 
 of the plebs. Dio Cass. Frag. 25. 
 
 Whether the order of the people, 437, directing the dictator at public expense to 
 present a golden crown of a pound weight to Jupiter was dictatorial or tribunician 
 cannot be determined ; Livy iv. 20. 4. 
 
 ' Cf. iv. 48. 1; S3- 6; v. 12. 3 ; vi. 5. 2; 6. I. 
 
 8 Livy iv. 36. 2 (424). 
 
 9 Livy iv. 59. 11 ; Diod. xiv. 16. 5; Zon. vii. 20. 6; Flor. i. 6 (12). 8; cf. Lange, 
 Rom. Alt. i. 540, 668 f. ; ii. 627 ; Herzog, RSm. Staatsverf. i. 212 f. ; p. 284 above. 
 
296 THE ROMAN ASSEMBLIES 
 
 the first, 368, increasing the duoviri sacris faciundis to decem- 
 viri and providing that five should be plebeian, 1 the second, 367, 
 containing in Livy's opinion four articles: (1) that one consul 
 must be plebeian, 2 (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, 3 (4) that the 
 right to pasture cattle and sheep on the public land should also 
 be limited. 4 
 
 Thereafter we find the tribal assembly more active in legisla- 
 tion. 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. 6 The motive, however, which Livy 
 attributes to the author — to prevent the further enlargement 
 
 1 Livy vi. 42. 2; cf. Wissowa, Relig. u. Kult. d. Rom. 461. 
 
 2 The word utique, " at least," inserted in this article by Livy, vi. 35. 5, belongs 
 to the Genucian law of 342 ; p. 299. 
 
 8 Livy vi. 35. 4 f.; 42. 9; xxxiv. 4. 9. 
 
 4 In his account of the Licinian-Sextian legislation he makes no mention of this 
 last regulation, but assumes its existence for the following period; cf. p. 291 f., on 
 aedilician prosecutions for violations of this article. 
 
 Other sources for the second Licinian-Sextian plebiscite are Varro, R. R. i. 2. 9; 
 Plut. Cam. 39; Ti. Gracch. 8; Appian, B. C. i. 8. 33; Veil. ii. 6. 3; Val. Max. 
 viii. 6. 3; (Aurel. Vict.), Vir. III. 20. 
 
 The statute, especially the agrarian portion, is discussed by Meyer, in Rhein. 
 Mus. xxxvii (1882). 610-27; Niese, in Hermes, xxiii (1888). 410-23 ; Rom. 
 Gesch. 55, 148; Soltau, in Hermes, xxx (1895). 624-9; Pais, Stor. di Rom. I. ii. 72 ff., 
 134 ff. Niese refuses to believe that this agrarian legislation came so early, and 
 prefers a date shortly after the close of the war with Hannibal. Soltau, controvert- 
 ing Niese's view, insists that the chief regulation mentioned by Livy — the limitation 
 of occupation to five hundred iugera — belongs to Licinius and Sextius, and that the 
 article was afterward renewed, with the addition of the other provisions stated by 
 Appian, probably about the time of the Hortensian legislation. Against the earlier 
 date is especially urged the circumstance that the large number of iugera allowed to 
 the individual is incongruous with the narrow limits of the Roman territory at that 
 time. The provision for the relief of debtors, too, has the appearance of an antici- 
 pation of a plebiscite on the same subject passed in 447; p. 298 below; cf. Matzat, 
 Rom. Chron. ii. 113, n. 9; 128, n. 6. 
 
 6 Livy vii. 15. 12 f.; Isler, Ueber das poetelische Geselz de ambitu, in Rhein. Mus. 
 xxviii (1873). 473-7; Lange, Kleine Schriften, ii. 195-213; Rom. Alt. i. 716; 
 Herzog, Rom. Staatsverf. i. 241 f.; Ihm, in Pauly- Wissowa, Real-Encycl. i. 1801; 
 cf. p. 295 above. 
 
COMITIA TRIBUTA, 449-287 297 
 
 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. 1 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 sanc- 
 tion; 2 and the legality of the measure was never called in 
 question. 8 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 fol- 
 lowing through the clientage of their freedmen, to the disadvan- 
 tage 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 plebi- 
 scite which threatened with the death penalty any magistrate 
 who held comitia away from the city. 4 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 6 — thereby confirming a law of 
 the Twelve Tables 6 — and five years later the consular law of 
 
 1 P. 202. 2 P. 235, 314. 
 
 8 Livy vii. 1 6. 7 f. ; cf. Herzog, R'om. Slaatsverf. i. 246-8; Lange, Rom. Alt. i. 
 191 ; ii. 26, 621. * Livy vii. 16. 8. 
 
 6 Livy vii. 16. I. Two laws of 356 have a certain degree of financial interest: 
 the dictatorial law which made provision for an impending war (Livy vii. 17. 7); 
 and the alleged resolution of the people (p. 293) to grant the same dictator the 
 privilege of a triumph. 
 
 6 Tac. Ann. vi. 16 ; cf. Herzog, Rom. Staatsvcrf. i. 183, n. 3. 
 
298 THE ROMAN ASSEMBLIES 
 
 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)- 1 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. 2 
 
 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 cul- 
 minated 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, 3 (2) by the plebi- 
 scite 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 
 
 1 Livy vii. 21, 5 ; cf. Herzog. Rom. Staatsvcrf. i. 245. That the bank commission 
 owed its existence to a law is an inference from the circumstances. The form of 
 assembly is unknown. With this Valerian-Marcian law, 352, Lange, Rom. Alt. ii. 
 621 f., conjecturally identifies the lex Marcia against usurers; Gaius ir. 23. In his 
 opinion also (ibid. ii. 622; cf. Rudorff, Rom. Rechtsgesch. i. 51) the lex Furia de 
 sponsu mentioned by Gaius, iii. 121 ; iv. 22, "discharging the sponsor and fide- 
 promissor of liability in two years and limiting the liability of each to a proportionate 
 part " (Poste's interpretation) belongs to L. Furius, dictator in 345 (Livy vii. 28. 2) ; 
 whereas others assign it to the year 95 (cf. Poste, Gat. Inst. 359) and others to a 
 time subsequent to Cicero (cf. Roby, Rom. Priv. Law, ii. 30). It was later than the 
 lex Appuleia de sponsu, which is referred to by Gaius iii. 122, and which must have 
 been enacted after the establishment of the provincial system. It is to be attributed, 
 accordingly, to the famous tribune of 103, 100 (Poste, ibid. 359) rather than to the 
 like-named tribune of 390 (Livy v. 32. 8 ; Lange, Rom. Alt. ii. 621). These con- 
 siderations render the later dating of the lex Furia the more probable. The lex 
 Publilia de sponsu, the date of which is also unknown, granted the surety (sponsor) 
 an action against the principal debtor in case the latter failed to reimburse him 
 within six months ; Gaius iii. 127; iv. 22, cf. 171. 
 
 2 Livy vii. 27. 3 ; Tac. Ann. vi. 16. The author is not named. 
 8 P. 238. 
 
COMITIA TRIBUTA, 449-287 299 
 
 time; (3) it allowed both consuls to be plebeian. 1 Although 
 Livy, failing to find the Genucian law in all his sources, hesi- 
 tates to accept it as historical, there seems to be no cogent ground 
 for disbelieving that such a statute was actually passed. 2 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 them- 
 selves 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 unen- 
 forced for many years, 3 whereas the provision regarding two 
 consuls had to wait more than a century for its first practical 
 application. 4 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. 6 
 
 Three years later the dictator Publilius Philo passed through 
 the centuriate assembly the statute (1) that plebi scita should be 
 
 1 Livy vii. 42. 1-3. Appian, B.C. i. 54, testifies to the existence of an ancient law- 
 forbidding interest ; cf. Tac. Ann. vi. 16. 
 
 2 Pais, Stor. di Rom. I. ii. 270, with his usual acumen has argued against the 
 existence of the Genucian as well as of the Fublilian statute ; but the reasons urged 
 by this eminent scholar do not seem to me to be convincing. The period in which 
 they fall is certainly within the reach of tradition. The abolition of debts through 
 the Valerian law was in keeping with the populistic spirit of the masses in that age, 
 as was the prohibition of interest. 
 
 8 Pais, Stor. di Rom. I. ii. 278, n. 4 : " Thus C. Junius Bubulcus and Aemilius 
 Barbula, consuls in 317, reappear in 311 B.C. ; L. Papirius Cursor is consul in 320, 
 319, 315, 313 ; P. Decius is consul in 312 and in 308," etc. ; cf. further Mommsen, 
 Rom. Staalsr. i. 519, n. 5. It is true that on one occasion Livy, x. 13. 8 f. (298), 
 speaks of the law and of a proposal of the tribunes to obtain a dispensation for the 
 candidate Fabius by a vote of the people, oblivious of the violation of the law by 
 this same Fabius as well as by many others. 
 
 * Livy xxiii. 31. 13 f. ; Plut. Marc. 12 (215). On that occasion when the people 
 were told that the election of two plebeians as colleagues in the consulship was 
 displeasing to the gods, they proceeded to choose a patrician in place of the second 
 plebeian ; cf. Herzog, Rom. Staatsverf. i. 253, u. 2. The first definitive election 
 of two plebeians was in 172; Fast. Cos. Capit., in CIL. i' 2 . p. 25 : "Ambo primi de 
 plebe." 
 
 6 Cf. Herzog, Rom. Staatsverf. i. 253. 
 
300 THE ROMAN ASSEMBLIES 
 
 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). 1 All three articles were alike aimed against 
 the political dominance of the patricians. The second freed 
 centuriate legislation from their control ; 2 the third 3 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.* 
 
 The first article has substantially the same form as the 
 corresponding provision of the Valerian-Horatian statute, 449, 
 and of the Hortensian, 287- 5 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 reenactment. 6 The explana- 
 tion 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 com- 
 plaint 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 
 
 1 Livy viii. 12. 14-16. 2 P. 235. 
 
 8 P- 237- 4 P. 307- 
 
 6 P. 274, 313. 
 
 6 The most detailed study of this subject, including a critique of the principal 
 modern views, is made by Soltau, Gultigieit der Plebiscite, in Berl. Stud, ii (1885). 
 1-1 76. His criticism is more satisfactory than his construction. 
 
COMITIA TRIBUTA, 449-287 301 
 
 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 interpre- 
 tation 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 
 
302 THE ROMAN ASSEMBLIES 
 
 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 princi- 
 ple involved was no longer remembered in the age of Cicero. 1 
 
 The Publilian statute of 339 is not known to have provided 
 for an extension of the field of competence of the tribal assem- 
 bly ; 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, 2 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 3 — a " f oedus summae re- 
 ligionis," as Cicero declares. 4 Even Livy, who aims to prove 
 the procedure defective, admits that the tribunes of the plebs 6 
 and Postumius, 6 one of the consuls who made it, looked upon it 
 
 1 This point is established by the circumstances (1) that no writer of the period 
 refers to the principle mentioned; (2) that Cicero regards the thirty-five tribes 
 under tribunician presidency as the universus populus Romanus — a definition which 
 is incompatible with the legal exclusion of the patricians from that form of assembly 
 (p. 129 f.); (3) that on one occasion, 209, after the Hortensian legislation Livy 
 (xxvii. 21. 1-4) represents the voting assembly under tribunician presidency as 
 composed not only of plebs but of all ranks (concursu plebisque et omnium ordi- 
 num), and that the patricians were evidently free to take part in the debates of 
 the concilium; cf. Livy xliii. 16. 8; (4) Caesar, B. C. iii. I, seems to represent 
 the praetors and tribunes as presiding together over the same comitia (" praetoribus 
 tribunisque plebis rogationes ad populum ferentibus") — which would prove that 
 no difference of composition existed between the pretorian and the tribunician 
 assemblies of tribes. 2 P. 230. s Livy ix. 5. 2. 4 Inv. ii. 30. 92. 
 
 6 Livy ix. 8. 14: the tribunes protested against breaking it. 
 
 * Livy ix. 10. 10 : the circumstance that he assaulted the Roman fetialis is suffi- 
 cient evidence of his view. 
 
COMITIA TRIBUTA, 449-287 303 
 
 as legitimate. But according to Livy 1 the senate itself declared 
 the treaty invalid on the ground that it lacked popular confirma- 
 tion ; 2 and in that body the principle was then enunciated that 
 nothing which was to bind the people could be sanctioned with- 
 out their order 3 — 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 accept- 
 ance 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 con- 
 junction. 4 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. 6 But from 
 the time of the Caudine misfortune, and in consequence of it, 
 the principle was established that a treaty involving a conces- 
 sion of even equal rights on the part of Rome required the 
 sanction of a popular vote. Recorded instances of such ratifi- 
 cation for this period (321-287) are rare. 6 The function fell to 
 the comitia tributa under patrician or plebeian presidency, 
 which in its exercise showed more independence 7 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. 8 
 
 1 IX. 9. 4. Gellius, xvii. 21. 36, less credibly states that the treaty was repudiated 
 by order of the people. 
 
 2 Livy ix. 5-1 1; Cic. Off. iii. 30. 109; Inv. ii. 30. 92; Zon. vii. 26. 15. 
 8 Livy ix. 9. 4. 
 
 4 Livy viii. 36. 11 f. (ambassadors of the Samnites, applying for peace to the dicta- 
 tor, are ordered by him to address the senate, which replies that it will accept the 
 arrangements of the magistrate, 324) ; ix. 20. 8 (an unequal alliance with Apulia 
 negotiated by the consul, 317); ix. 43. 6 f. (the Hernicans, beaten in war, apply to the 
 senate, and are referred to the consuls, who accept their submission, 307); ix. 45. 
 1-3 (Samnite ambassadors ask peace of the senate, which replies that the consul will 
 pass through their country and will report to the senate on the conditions which he 
 finds there, 304) ; x. 3. 5 (the dictator, fining the Marsians of a part of their terri- 
 tory, grants them a renewal of the treaty, 302). In none of these instances is men- 
 tion made of the people ; and most of them preclude a popular vote. 
 
 6 Sail. Itig. 39. 
 
 6 Cf. Livy ix. 20. 2 f. (318), in which a proposal of peace was rejected by the 
 people. In the treaty with the Lucanians, 298, Livy, *. n. 13; 12. 1, mentions the 
 senate only; Dionysius, xvii, xviii (xvi. 12). 1. 3, speaks of both senate and assembly. 
 
 ' Cf. Livy ix. 20. 2 f. 8 Polyb. vi. 14. 10 f.; 15. 9. 
 
304 THE ROMAN ASSEMBLIES 
 
 The absolute power to bestow the citizenship exercised by 
 the kings 1 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 2 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. 3 In the whole course of 
 Roman history to 332 there is no record of a grant of citizen- 
 ship by popular vote. 4 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. 5 In opinion of Lange, 6 based upon a statement 
 of Velleius, 7 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 
 
 1 P. 181. a Horn. Alt. i. 514; ii. 638; p. 283 above. 
 
 8 Livy viii. 13. 10 ff.; ch. 14. 
 
 4 The gift of citizenship, adprobantibus cunctis, to L. Mamilius, dictator of Tus- 
 culum, 458, does not necessarily imply a public vote; Livy iii. 29. 6. Even if this 
 were the opinion of Livy, it need be no more than an anticipation of later usage. 
 In 381 the Tusculans received the citizenship, how we are not informed; Livy vi. 26. 
 8 : Dio Cass. Frag. 28. 2. In the account of the settlement of Latium and Cam- 
 pania in 340, involving the grant of citizenship to the Capuan equites, no mention is 
 made of either senate or people; Livy viii. II. 13-16. The sources are likewise 
 silent as to a popular vote in the grant of citizenship sine suffragio to the Caerites; 
 Livy vii. 20. 8; Dio Cass. Frag. 33 (Boissevain i. p. 138); Strabo v. 2. 3, p. 220; 
 Gell. xvi. 13. 7. From Livy and Dio Cassius it may be reasonably inferred that the 
 event took place after 353, though Boissevain's date, 273, seems to be too late. 
 Probably they were admitted between 353 and 332 — before the hundred years' 
 peace had far advanced. 
 
 6 Livy viii. 17. 12. 6 R6m. Alt. ii. 638. 1 1. 14. 4. 
 
COMITIA TRIBUTA, 449-287 305 
 
 the tribes, ex auctoritate patrum, granted the citizenship to the 
 Privernates, 329. 1 By what authority the Hernicans received 
 the civitas sine suffragio in 306 is not stated. 2 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. 3 Logi- 
 cally the function should have fallen to the comitia centuriata 
 as the source of censorial power; but the tribal assembly as- 
 sumed it because of its connection with the making of treaties. 4 
 It was the province of the centuriate assembly to introduce 
 permanent regulations of existing magistracies and to institute 
 new ones ; 6 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 move- 
 ment 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 Na- 
 ples, instituting by this precedent the promagistracy. 6 Again 
 in 295 the imperium of the consul Volumnius was prolonged 
 for a year by a decree of the senate ratified by a plebiscite. 7 
 After the custom had been established, however, the senate 
 ordinarily attended to the prolonging of the imperium, as in 
 308, 8 in 296, 9 and in 294, 10 consulting the people, as it seems, 
 only in cases of tribunician opposition. 11 No instance of popu- 
 lar interference in the assignment of provinces is mentioned 
 before 295, when a resolution of the comitia tributa, under 
 
 1 Livy viii. 21. 10. Nothing is said as to the chairmanship of the assembly. The 
 event is referred to by Dio Cass. Frag. 35. 11. 
 
 2 Livy ix. 43. 24. s P. 352. * Lange, Rom. Alt. ii. 610 (., 638. 
 
 5 P. 234. The only exception is the creation of a prefecture of the market by a 
 plebiscite in 440; p. 295. 6 Livy viii. 23. II f. 
 
 7 Livy x. 22. 9. 8 Livy ix. 42. 2. 
 
 9 Livy x. 16. 1. 10 Dion. Hal. xvii, xviii (xvi. 16). 4. 4. 
 
 11 Lange, Horn. Alt. ii. 640. 
 x 
 
306 THE ROMAN ASSEMBLIES 
 
 what form of presidency is not stated, granted Etruria to the 
 patrician Fabius in preference to the plebeian Decius. 1 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. 2 Even in the 
 latter case the act of the people was a remarkable deviation 
 from their usual modest policy of dealing with officials. 
 
 In 3 1 8 a law, doubtless tribal, was passed for sending prae- 
 fecti iure dicundo to Capua; 8 and similar laws were from 
 time to time enacted for assigning the same kind of officials to 
 other communities of Italy. 4 These prefects continued to 
 be appointed by the urban praetor till after 124. 5 Whether 
 the law of 318 was pretorian or tribunician cannot be deter- 
 mined. 6 Similar in character was the Atilian-Marcian plebi- 
 scite for the election of sixteen military tribunes instead of six, 
 3 1 1. 7 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. 8 
 Although the elective military tribunes remained subordi- 
 nate 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 
 
 1 Livy x. 24. 18; cf. Willems, Sen. Rom. ii. 531. For other versions of the 
 event, see Livy x. 26. 5 f. 
 
 2 Livy, ep. xi; p. 359 above. Probability favors the tribunician assembly. 
 8 Livy ix. 20. 5. * Fest. 233. 14. 
 
 6 Mommsen, Rom. Staatsr. ii. 609. 
 
 6 Lange, Rom. Alt. ii. 73, 632. Cuq, in Daremberg et Saglio, Diet. Hi. 1 144, 
 assumes that it was proposed by L. Furius, praetor in that year. 
 
 7 Livy ix. 30. 3. 8 p 2 ^ m 
 
COMITIA TRIBUTA, 449-287 307 
 
 fleet. 1 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. 2 Here, too, belongs the plebiscite of 296 for the ap- 
 pointment of commissioners for conducting colonies. 3 Hence- 
 forth 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. 4 
 
 The people made a furthur 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 cen- 
 sorship of Appius Claudius Caecus, 312, belongs the famous 
 Ovinian plebiscite concerning the revision of the senate list. 5 
 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. 6 
 
 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, 7 — they began the practice of occasionally sus- 
 pending laws to the advantage or disadvantage of individuals or 
 of classes — in other words, the voting of privilegia. 8 There 
 were repeated violations of that article of the Genucian plebi- 
 scite which forbade reelection to an office within a period of ten 
 
 1 Livy ix. 30. 3 f. In ix. 38. 2 he refers to a naval commander whom the senate 
 placed in charge of the coast, and whom Mommsen, Rom. Staatsr. ii. 580, n. I, 
 supposes to have been a duovir. That a duovir commanded a fleet in 282 is 
 proved by Livy, ep. xii; Dio Cass. Frag. 39. 4. Probably the triumviri capitales, 
 289, were created by a similar act of the tribes; Livy, ep. xi; p. 312. 
 
 2 P. 309. 8 P. 311. 
 
 4 Lange, Rom. Alt. ii. 534, 636. 6 Fest. 246. 19. 
 
 6 The brief statement of Festus, ibid., is here interpreted in the light of Livy 
 xxiii. 23. 6. In general on the Ovinian plebiscite, see Lange, Kleins Schriften, ii. 
 393-446; Willems, Sen. Rom. i. 153-173, 668-89; Herzog, Rom. Staatsverf. i. 
 259 ff.; Mommsen, Rom. Staatsr. ii. 418 ; iii. 873, 879. 
 
 7 Cf. Livy iv. 5. 2; p. 287 above. 8 Cf. Gell. x. 20. 4, 9 f. 
 
3 o8 THE ROMAN ASSEMBLIES 
 
 years, 1 and no mention is made of the necessity of a dispensa- 
 tion before the year 298, when Q. Fabius Maximus is alleged 
 to have objected to further reelection 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 require- 
 ment. 2 But in fact, as Lange 3 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.* At all events the custom of grant- 
 ing dispensations began about this time, 5 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 sover- 
 eignty. 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. 6 The aristoc- 
 racy was giving way to a democracy, which under the condi- 
 tions 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 prece- 
 ^n7"of~thTTIclnian-Sextian plebiscite on the decemviri sacris 
 faciundis 7 and of other less important acts. 8 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, 9 hence necessarily to 338, 10 belongs the consular lex 
 Maenia, which added to the Ludi Romani the day called 
 instauraticius, 11 although less trustworthy accounts assign the 
 
 1 Cf. Livy viii. 16. 4; ix. 7. 15; 28. 2; Diod. xix. 66. 1; p. 299, n. 3. 
 
 2 Livy x. 13. 8 f. 8 Rom. Alt. ii. 641. 4 Livy x. 22. 9. 
 6 It is the only instance mentioned for this early time. 
 
 6 Livy x. 13. 10: "lam regi leges, non regere"; cf. Appian, Lib. 112; Lange, 
 Rom. Alt. ii. 641. 7 P. 295 f. B P. 293, 295, n. 6. 
 
 9 Div. i. 26. 55; Macrob. Sat. i. 11. 13 (on the reading, see Mommsen, in Hermes 
 iv (1870). 7; Lange, Rom. Alt. ii. 634. 10 Livy viii. 13. I. 
 
 11 Macrob. Sat. i. 11. 5; Cuq, in Daremberg et Saglio, Diet. iii. 11. 54. On these 
 games, see Marquardt, Rom. Staatsv. iii. 497; Wissowa, Relig. u. Kult. d. Rom. 
 inf., 385 f. 
 
COMITIA TRIBUTA, 449-287 309 
 
 establishment of this day to 49 1. 1 The law initiated by the 
 senate in 304 forbidding the dedication of a temple or altar ex- 
 cept by permission of the senate or of a majority of the college 
 of tribunes 2 was probably passed by the comitia tributa plebis. 
 In the opinion of Lange 3 it was either identical with, or after- 
 ward supplemented by, the lex Papiria tribunicia, which forbade 
 the consecration of a temple, precinct, or altar without an order 
 of the plebs. 4 The latter is the more probable; it seems rea- 
 sonable 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. Techni- 
 cally 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. 5 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 6 
 and confirmed for the centuries by the Valerian law of appeal 
 in 300. 7 The creation of special judicial commissions — quaes- 
 tiones 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 con- 
 sultum. 8 The task of trying and condemning the matrons for 
 poisoning in 331 must have fallen to such a quaestio extraordi- 
 naria not expressly mentioned. Whether it was instituted by 
 the senate or the tribes cannot be known. 9 The special quaes- 
 
 1 Livy ii. 36; Dion. Hal. vii. 68; Plut. Cor. 24; Val. Max. i. 7. 4; cf. Lange, 
 Horn. Alt. ii. 634. 2 Livy ix. 46. 7. 8 Rom. Alt. i. 828; ii. 634. 
 
 * Cic. Dom. 49. 127 (.; Alt. iv. 2. 3. 
 
 6 Livy x. 6 f. He has evidently made a mistake in supposing the number of 
 pontiffs to have been increased to only eight (chs. 6. 6; 8. 3; 9. 2; cf. Bardt, 
 Priester der vier grossen Collegien, 32 f. ; Wissowa, Relig. u. Kult. d. Rom. 432, n. 4. 
 
 6 P. 240, 241, 269, 280. 7 P. 241 f. 8 P. 295. 
 
 9 Livy viii. 18. 3 ff.; Val. Max. ii. 5. 3; Oros. iii. 10; August. Civ. Dei, iii. 17. p. 
 124 Domb. The lex de veneficio mentioned by Livy, ep. viii, may refer to the act 
 which established this court; but it would not be legitimate to argue from this 
 
3 io THE ROMAN ASSEMBLIES 
 
 tio, too, concerning conspiracy, at first under dictatorial and 
 afterward under consular presidency, seems to have been insti- 
 tuted solely by a senatus consultum. 1 The Flavian rogation of 
 323 for punishing the Tusculans for having given aid and en- 
 couragement to the enemies of Rome 2 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. 3 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. 4 
 
 The right of the people both in the centuries and in the 
 tribes to legislate on finance had before 339 been well estab- 
 lished by precedent. Economic as well as social in character 
 was the lex Poetelia, which prohibited loans on the security 
 of the person, 6 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. 6 It abolished contractual but not judicial servi- 
 tude, though it probably mitigated the latter. 7 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, 8 and continued almost unceas- 
 ingly 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 9 both from the 
 
 expression a popular vote. The epitomator undoubtedly drew all his information 
 from the text. 
 
 1 Livy ix. 26. 6 ff.; cf. however, Lange, Rom. Alt. ii. 637. 
 
 2 Livy viii. 37. 8; Val. Max. ix. 10. I; Pliny, N. H. vii. 42. 43. 136; p. 288, n. I. 
 
 3 Lange, Rom. Alt. ii. 637. * Livy ix. 16. 10; xxvi. 33. 10. 
 
 6 Cic. Rep. ii. 34. 59; Livy viii. 28; Varro, L. L. vii. 105; Dion. Hal. xvi. 
 J (9); Suidas, s. v. Titos kairibpios j cf. Kleineidam, in Festg.f. F. Dahn, ii. 1-30. 
 
 6 Varro, ibid., assigns the law to a dictator, C. Popillius, which may be a mistake 
 for C. Poetelius, dictator in 313; Livy ix. 28. 2. 
 
 7 Greenidge, Leg. Proced. 74. 
 
 8 P. 238. » P. 284 
 
COMITIA TRIBUTA, 449-287 311 
 
 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. 1 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. 2 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, 8 and conquests made extensive assign- 
 ments of land possible. 4 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. 6 
 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 6 — 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 espe- 
 cially vexatious to the plebs. 7 The distress was augmented by a 
 pestilence which began in 295 and continued for several years. 8 
 
 1 Livy, iv. 1 1. 3-7, represents the tribunes of 442 as attempting to call to account 
 the colonial commissioners of that year (cf. p. 288). In 418 they planned to offer 
 a bill for colonizing Labici (Livy iv. 47. 6). In 415 a bill for colonizing Bolae, 
 introduced by a tribune of the plebs, was vetoed by a colleague; Livy iv. 49. 6; 
 cf. Diod. xiii. 42. 6. Many similar instances are given for the time immediately 
 following; cf. Lange, Rom. Alt. ii. 626 f. with citations. Although we may question 
 the truth of these individual cases, we have no ground for doubting that such 
 agitation continued long before the tribunes succeeded in carrying a colonial law. 
 
 2 Livy x. 21. 9; p. 307. 8 Livy viii. 36. 9 f.; ix. 42. 5. 
 * Cf. Livy x. 6. 3; 21. 9; Herzog, Rom. Staatsverf. i. 282 f. 
 
 6 Cf. Livy x. 17. 10; 20. 16; 25. 3; 30. 10: "Praemia ilia tempestate militiae 
 haudquaquam spernenda"; 31.4; 44. I; 45. 14; 46- 15. 
 " Livy x. 13. 14; 23. 13; 47. 4. 7 Livy x. 46. 5 f. 
 
 8 Livy x. 31. 8; 47. 6; ep. xi; Zon. viii. I. 10; Val. Max. i. 8. 2. 
 
312 THE ROMAN ASSEMBLIES 
 
 Whereas all on actual service were by law exempt from pros- 
 ecution for debt, many citizens who remained at home 
 were the victims of the usurers, who were occasionally fined 
 for their illegal exactions. 1 Again all the commons in- 
 curred 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 2 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, 3 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,* 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 
 
 1 Liy y x - 23- 11 £ 2 P. 307, n. 1, 332. 
 
 ^ 2 79- 4 Boissevain's reading. 
 
COMITIA TRIBUTA, 449-287 313 
 
 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, con- 
 tinued 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. 1 Q. Hor- 
 tensius, 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. 2 
 
 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 sena- 
 tus consultum in this law was therefore considered a full equiva- 
 
 1 The chief source is a mutilated fragment of Dio Cassius viii. 37. 2-4, which 
 is paraphrased in the text above. The account given by Zonaras viii. 2 is a 
 brief epitome of the fragment, adding the circumstance of the foreign war. The 
 restoration of the fragment is due chiefly to Niebuhr, Rhein. Mus. ii (1828). 588 ff. 
 See also the edition of Dio Cassius by Boissevain, i. 1 10 f. and by Melber, i. 108 f. 
 The secession to the Janiculum is mentioned by Livy, ep. xi, and by Pliny, N. H. 
 xvi. 10. 37. 
 
 2 Pliny, N. H. xvi. 10. 37 : " Q. Hortensius dictator, cum plebes secessisset in 
 Ianiculum, legem in aesculeto tulit, ut quod ea iussisset omnes quirites teneret"; 
 Gaius i. 3: "Untie olim patricii dicebant plebiscitis se non teneri, quia sine 
 auctoritate eorum facta essent; sed postea lex Hortensia lata est, qua cautum est 
 ut plebiscita universum populum tenerent; itaque eo modo legibus exaequata sunt "; 
 Laelius, in Gell. xv. 27. 4: "Ita ne leges quidem proprie, sed plebisscita appellan- 
 tur, quae tribunis plebis ferentibus accepta sunt, quibus rogationibus ante patricii 
 non tenebantur, donee Q. Hortensius dictator legem tulit, ut eo iure, quod plebs 
 statuisset, omnes quirites tenerentur"; Pomponius, in Dig. i. 2. 2. 8: "Quia 
 multae discordiae nascebantur de his plebis scitis, pro legibus placuit et ea observari 
 lege Hortensia: et ita factum est, ut inter plebis scita et legem species constituendi 
 interesset, potestas eadem esset." 
 
3H THE ROMAN ASSEMBLIES 
 
 lent 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, 1 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 comi- 
 tia 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 inten- 
 tion of the Valerian-Horatian law, to be free from plebi scita 
 because the latter were passed without their auctoritas. 2 If 
 they could make good their intention, they would remain unaf- 
 fected by tribunician laws for the abolition of debt. But the 
 Hortensian statute settled finally the controversy to their dis- 
 advantage. 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. 3 
 
 1 p - 2 35, 37 2 - 
 
 2 This fact is clearly expressed by Gaius; see p. 313, u. 2 above. 
 
 3 Before acquiring this right they had been accustomed to sit on their bench at 
 the door of the curia, in order to watch the proceedings within. Though as yet 
 without an unrestricted legal right of intercession, they had attempted to force their 
 
COMITIA TRIBUTA, 449-287 315 
 
 (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. 1 
 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 centu- 
 riata. With the establishment of their absolute power of inter- 
 cession 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. 2 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. 3 This Horten- 
 sian provision was conservative in so far as it placed the tribu- 
 nician assembly under the same pontifical regulations of the 
 calendar as those which were to control the other forms of 
 comitia. 4 
 
 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 
 
 -veto upon the senate; Val. Max. ii. 2. 7; Zon. vii. 15. 8; cf. Mommsen, Rom. 
 Staatsr. ii. 316 f. The wording of the law of 304 regarding the dedication of a 
 temple or altar indicates that the tribunes had not yet acquired the right to convoke 
 the senate and bring measures formally before it; Mommsen, ibid. p. x, u. 2. 
 
 1 P. 270. 
 
 2 Granius Licinianus, in Macrob. Sat. i. 16. 30: "Lege Hortensia effectum, ut 
 fastae essent (nundinae), uti rustici, qui nundiniandi causa in urbem veniebant, lites 
 componerent. Nefasto enim die praetori fari non licebat"; § 29: "Iulius Caesar 
 sexto decimo auspiciorum libro negat nundinis contionem advocari posse, id est cum 
 populo agi : ideoque nundinis Romanorum haberi comitia non posse " ; cf. p. 47 1 
 below. 8 P. 139. 
 
 4 P. 471 below; cf. Lange, Rom. Alt. ii. 644; Herzog, Rom. Staatsverf. i. 287 f. ; 
 Mommsen, Rom. Staatsr. iii. 372 f. 
 
316 THE ROMAN ASSEMBLIES 
 
 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 con- 
 duct 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 prece- 
 dent rather than by Statute, over the whole field of the constitu- 
 tion 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 magis- 
 trates, so this theory asserted, still retained large administrative 
 powers for the sole reason that the assemblies, unable to man- 
 age 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 confirma- 
 tion 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 pre- 
 ceding 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, 1 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) an d that of Hortensius (287). 2 Whether their activity 
 after 339 was due to the Publilian enactment of that year 3 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. 4 
 
 The capital actions brought by the tribunes before the centu- 
 ries in the period from Hortensius to the end of the republic 
 have already been reviewed. 5 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, 6 that only one tribunician prose- 
 cution 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. 7 
 
 In accord with the spirit of the Flaminian era, 232-201, on 
 the other hand, is the prosecution of the retired consuls, M. 
 
 1 p. 243, 287 f. 
 
 2 p. 247, 289. 
 
 8 P. 3°9- 
 
 * p. 290. 
 
 6 P. 248 ff. 
 
 « P. 330 ff. 
 
 ' p. 248. 
 
 
 
 317 
 
3 i8 THE ROMAN ASSEMBLIES 
 
 Livius Salinator and L. Aemilius Paulus, on the ground that 
 they had unjustly distributed the booty gained in war. Techni- 
 cally the charge seems to have been peculatus ; * it was 
 brought before the tribes in 21 8, doubtless by tribunes of the 
 plebs. Aemilius narrowly escaped condemnation ; Livius was 
 fined. The popular feeling against them was extremely 
 bitter. 2 In 214 M. Atilius Regulus and P. Furius Philus, 
 censors, degraded to the condition of aerarius 3 L. Caecilius 
 Metellus, 4 who after the battle of Cannae had tried to persuade 
 the knights to abandon Italy. 6 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 ad- 
 ministration. His purpose was thwarted, however, by the 
 intercession of the remaining nine tribunes, 6 who in this way 
 saved for a time a conservative principle of the constitution — 
 the inviolability of the magistrate from prosecutions while in 
 office. 7 The trial of Postumius the publican, beginning in a 
 finable action and ending as perduellio, has been treated else- 
 where. 8 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. 9 
 
 1 (Aurel. Vict.) Vir. III. 50. I. 
 
 2 Livy xxii. 35. 3; 40. 3; 49. u; xxvii. 34. 3 f.; xxix. 37. 13 f. 
 
 8 P. 62. 4 Livy xxiv. 18. 3, 6. 6 Livy xxii. 53. 4 f. 
 
 6 Livy xxiv. 43. 1-3; cf. Klebs, in Pauly-Wissowa, Real-Encycl. ii. 2093. 
 
 ' A similar attempt in 204 by Cn. Baebius, tribune of the plebs, to prosecute the 
 censors C. Claudius and M. Livius while in office was quashed by the senate; Livy 
 xxix. 37; Val. Max. vii. 2. 6; cf. Mommsen, Rdm. Staatsr. ii. 322, n. 4. 
 
 8 P. 249. The state agreed to insure from the enemy and from storms cargoes 
 shipped for the use of the army; Livy xxiii. 49. 1-3; xxv. 3. 10. Postumius took 
 advantage of this insurance to send out old, unseaworthy ships with cargoes of little 
 value, and after wrecking them, to report many times the real amount of the loss; 
 ibid. § 10 f. The senate, fearing to give offence to the powerful order of publicans, 
 failed to act when informed by the praetor; § 12. Thereupon the tribunes brought 
 the accusation. For the trial, see ibid. § 13-9 and ch. 4; cf. Lange, Rom. Alt. 
 ii. 177, 588. The weight of the as in which the fine was estimated is not given by 
 Livy xxv. 3. 13. 
 
 For a similar transfer of the case against Cn. Fulvius, retired praetor, from the 
 tribes to the centuries, 211, see p. 249. 
 
 9 Val. Max. viii. 1. damn. 5. Here, too, should be mentioned the condemna- 
 tion of a member of the same board in a similar action for neglect to inspect the 
 watchmen; Val. Max. ibid. § 6. 
 
JURISDICTION OF THE TRIBES 319 
 
 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. 1 
 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 pro- 
 consul the accused gained over the Aetolians and Antiochus 
 a victory by which he won the right to a triumph. 2 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. 3 
 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 4 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 accord- 
 ingly 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. 5 In 
 this proceeding he kept strictly within his legal rights. 6 Noth- 
 ing further seems to have been accomplished for the present ; 7 
 
 1 Cato, Orat. i : " Dierum dictarum de consulatu suo." 
 
 2 Livy xxvii. 46. I f. 
 
 8 Cato, Orat. xiii; Livy xxxviii. 57. 10 ; cf. Mommsen, Rom. Forsch. ii. 459 ff. 
 4 For the cognomen, see Mfinzer, in Pauly-Wissowa, Real-Encycl. iv. 1475. 
 6 Polyb. xxiii. 14; Gell. iv. 3-5, 7-12; Diod. xxix. 24 (from Polyb.) ; Livy xxxviii. 
 54; Val. Max. iii. 7. 1 d; (Aurel. Vict.) Vir. III. 49. 16-9. 
 
 6 Mommsen, Rom. Forsch. ii. 464 f. 
 
 7 In the story of the trial given by Antias the two Petilii were the prosecutors of 
 
320 THE ROMAN ASSEMBLIES 
 
 but M. Naevius, tribune of the plebs, after entering office 
 December 10, 185, brought against Publius Scipio a prosecu- 
 tion, 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. 1 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 con- 
 viction was accordingly to be a fine. His brother was still 
 in danger. Early in 184 C. Minucius Augurinus brought a 
 finable action 2 against Lucius concerning the money received 
 from Antiochus. 3 He was condemned by the tribes, where- 
 upon the prosecutor demanded surety (praedes) for the pay- 
 ment 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 
 
 Publius (Livy xxxviii. 50 f.). In ch. 54 f. Livy, again following Antias, represents 
 these tribunes as authors of a plebiscite for the appointment of a special court to 
 inquire concerning the money received from King Antiochus, and states that L. 
 Scipio was condemned by this court. The story may not be without foundation; 
 but if such a plebiscite was adopted, it could not have had the desired result. 
 
 J This incident is considered doubtful by Bloch, in Rev. d. etud. anc. viii (1906). 
 109. 
 
 2 According to Diod. xxix. 21, Scipio was threatened with the death penalty; 
 but the trial actually took the form described above in the text. 
 
 8 Gell. vi. 19. 2. It was probably in connection with this trial that Cato de- 
 livered his speech " Concerning the money of King Antiochus"; Livy xxxviii. 54. 
 11; Plut. Cat. Mai. 15; Cato, Orat. xv. 
 
JURISDICTION OF THE TRIBES 321 
 
 prosecutor, one of them, Ti. Gracchus, prevented the imprison- 
 ment and consequently the collection of the fine. 1 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. 2 
 
 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. 3 In 
 this period the tribes must have been unusually active in a 
 judicial capacity, 4 as Cato was himself prosecuted forty-four 
 times, often doubtless before the comitia tributa, but was always 
 given a favorable verdict. 5 
 
 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 
 f urtum and iniuria. He was condemned by all the tribes to a 
 fine of a million asses. 6 But after 149 most cases of misgovern- 
 ment in the provinces came before the quaestio repetundarum 
 instituted in that year. 7 There were occasional prosecutions for 
 beginning war without authorization. 8 Toward the end of the 
 
 1 The edicts of these conflicting tribunes are given by Gell. vi. 19. 5, 7; cf. Livy 
 xxxviii. 56. 10; Cic. Prov. Cons. 8. 18. The dissenting edict states that the fine was 
 imposed nullo exemplo, yet it was within the competence of the tribune; Mommsen, 
 Horn. Staatsr. ii. 322, u. 2. 
 
 2 The account here given closely follows Mommsen, Rom. Forsch. ii. 417-510. 
 For other authorities on the trial, see p. 329. 
 
 8 Plut. Cat. Mai. 19 ; Lange, Rom. Alt. ii. 590 ; Mommsen, Rom. Staatsr. ii. 
 322, n. 4. 
 
 In 142 F. Scipio Aemilianus when censor had deprived Ti. Claudius Asellus of his 
 public horse. Afterward this man as tribune of the plebs brought against him an 
 accusation for malversation in his censorship ; Gell. iii. 4. 1 ; cf. ii. 20. 6. It was 
 a finable case (ibid. vi. II. 9), in which was charged against him a lustrum malum 
 infelixque; Lucilius, in Gell. iv. 17. I ; cf. Cic. Orat. ii. 64. 258; 66. 268. The 
 prosecution probably failed ; Lange, Rom. Alt. ii. 591 ; Mommsen, Rom. Staatsr. ii. 
 322, n. 4. 4 Cf. Plautus, Capt. 476. 
 
 6 Pliny, N. H. vii. 27. 100 ; Plut. Cat. Mai. 15. Cato's Oration liv was delivered 
 on one of these occasions. For his general character and activity, see Livy xxxix. 40. 
 
 6 Livy xliii. 7 f. With this trial was concerned the senatus consultum of 1 70 ; cf. 
 Bruns, Font. iur. p. 162. See further Lange, Rom. Alt. ii. 287, 591 ; Mommsen, 
 Rom. Staatsr. ii. 322, n. 3 ; cf. i. 699 f. 7 P. 358. 8 P. 231 f. 
 
 Y 
 
322 THE ROMAN ASSEMBLIES 
 
 pre-Gracchan oligarchy C. Laelius Sapiens, the friend of Scipio 
 Aemilianus, seems to have been brought to trial for malver- 
 sation in his consulship of the year 140, but was probably 
 acquitted. 1 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 juris- 
 diction 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 magis- 
 trate 2 — a policy which could be expected of the generation 
 that adopted the Aelian and Fufian laws. 3 
 
 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, chal- 
 lenged 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 per- 
 mission 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 tem- 
 per, 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. 4 
 But the fact that Annius made a speech against Tiberius 5 indi- 
 
 1 Fest. 193. 21; 314. 33 ; cf. Lange, Rom. Alt. ii. 591. 
 
 2 Livy, ep. xlvii; cf. Lange, ibid. ii. 313, 591. 
 8 P- 359- 
 
 4 Plut. Ti. Gracch. 14; cf. Greenidge, Hist, of Rome, i. I3lf. ; Klebs, in Pauly- 
 Wissowa, Real-Encycl. i. 2270. 
 
 6 Fest. 314. 30; cf. Livy, ep. lviii. 
 
JURISDICTION OF THE TRIBES 323 
 
 cates that the proceedings went farther. Evidently the accused 
 in some way escaped condemnation. The same political signifi- 
 cance attaches to the tribunician capital prosecutions of the 
 time, mentioned in an earlier chapter. 1 No more actions, how- 
 ever, are known to have been brought by the tribunes before 
 the tribes till 103, 2 when Cn. Domitius Ahenobarbus, a popular 
 tribune of the plebs, author of the famous statute concerning the 
 election of sacerdotes, 3 prosecuted M. Junius Silanus for mis- 
 conduct as consul in 109. The charge was that he had begun 
 war on the Cimbri without an order of the people. Notwith- 
 standing the stigma of defeat borne by the accused, he was 
 acquitted by thirty-three of the thirty-five tribes.* 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. 6 
 These prosecutions, together with the plebiscite just men- 
 tioned, excited against Domitius an antipathy among the 
 optimates which reveals itself in the sources but which his 
 character hardly deserved. 6 
 
 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. 7 In one of the contiones 
 for the trial of this case the citizens would not listen to the 
 
 1 p. 256 f. 
 
 2 Veil. ii. 12. 3 assigns the tribunate of Domitius to 103, Ascon. 80 f. to 104. 
 Probably the latter refers to his entrance upon the office, December 10, 104 ; but 
 see Bardt, Priester der vier grossen Collegien, 7 f. 
 
 8 P. 39'- 
 
 4 Ascon. 80 ; Cic. Caecil. 20. 67 ; Verr. ii. 47. 1 18 (in both Ciceronian passages 
 the motive of the accusation is said to have been personal) ; cf. Lange, Rom. Alt. ii. 
 592 ; iii. 70 ; Mommsen, Rom. Staatsr. ii. 320, n. 3. 
 
 6 Ascon. i; Cic. Deiot. 11. 31; Val. Max. vi. 5. 5; Dio Cass. Frag. 92. A per- 
 sonal motive is suggested for this trial also by the sources. 
 
 6 Cf. Miinzer, in Pauly-Wissowa, Rcal-Encyd. v. 1324-7. 
 
 7 Dio Cass. Frag. 95. 3; App. B. C, i. 33. 148; Schol. Bob. 230; Cic. Rab. Perd. 
 9. 24; Place. 32. 77; Val. Max. viii. I. damn. 2; Lange, Rom. Alt. ii. 592; iii. 86; 
 Mommsen, Rom. Staatsr. ii. 323, n. I; Miihl, App. Sat. 94 ff., 105 f.; Rohden, in 
 Pauly-Wissowa, Rtal-Encycl. ii. 259. 
 
324 THE ROMAN ASSEMBLIES 
 
 defence of the accused but tore him in pieces. In the same 
 year Appuleins prosecuted L. Valerius Flaccus, euraie aedfle, 
 on what charge is unknown. His own condemnation to esue, 
 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. 1 
 
 Sulla s completion of the system of standing courts and his 
 restriction of the tribunician function of prosecution- substan- 
 tially withdrew all iudicial power from the tribal assembly under 
 the presidency of tribunes. The overthrow of the Cornelian con- 
 stitutional arrangements left the standing courts with jurisdic- 
 tion unimpaired. Though constitutionally the tribunes by this 
 overthrow regained their right to prosecute, they exercised it 
 rarely and feeblv during the remainder of the republic. C. 
 Memmius, tribune of the plebs in 66, brought M. Terentius 
 Varro Lucuilus 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. 3 Early in 58 
 L. Antistius, tribune of the plebs, in the interest of the opti- 
 mates 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.* In the 
 year 44 C Epidius Marullus and L. Caesetius Flavins, tribunes, 
 
 1 F. 257. b. 5 ^i\ Greenidge, Lig. Prtczd. 352, balds the inns-ad opinion that be 
 was cc-jdemned by 2 qnaestio. 
 
 To lis time shortly preceding the dictatorship of $-31* belong carrain rtirpa*^ zi 
 tribniacian jr-asec-soa which rr^y be mentioned here. In S7 a day was set for the 
 trial of L. Cornelius Soils himself by the tribune M. VergEics. Tie -.rinsed, tikirg 
 no notice of the prcsecrctkn, departed for the East; Gc Brut. 48. 1 ~c : Phst. 5ac_i 10; 
 cf. Frlalici, in f 1 2.i;7-Yfissowa,.fta«££'nfwi iv. 1537. In the suae year Arri-s Qao- 
 clhs Palcher, summoned to trial by a tribane of the plebs, retired into exile, where- 
 upon his propretorian imperiam was abrogated; Qc Ds>rr. 31. S3: MSmer, in 
 Psaly-Wissowa, ReaX-Emeyd. m. 2489; Greenidge, Leg. Priced. 35 z. In 84 Gm. 
 Fapirrzs Carbo, oottsal, was threatened with a prosecTiti;n. :z more strictly with an 
 abrogaricn of his oSce, if be sbc-id tail tj return to Rome :: hold the election of a 
 cc-Bea^ae : App. S.uijS. 35S f. -P. 414. 
 
 * ItaL Zauac?. 37: Langs, Sim. AH. in. 221 ; Greenidge, Ltg. Prvced. 353. 
 
 4 Saet. Ceo. 23; c£ p. 377 below. 
 
JURISDICTION OF THE TRIBES 325 
 
 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 with- 
 drawal. 1 In incomplete trials, like those last mentioned, it is 
 seldom possible to determine whether they were to come before 
 the centuries or the tribes. 2 
 
 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. 3 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,* 196, 6 and 193. 6 Closely 
 related is the fining of usurers in 192, 7 and of grain dealers for 
 cornering the market in 189. 8 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. 9 
 
 There are several known cases of criminal lust which fell 
 within the aedilician cognizance. In 227 C. Scantinus Capitoli- 
 nus 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. 10 Most 
 
 1 Dio Cass. xliv. 10. 
 
 2 Whether the case against Rabirius in 63, begun as perduellio, was transformed 
 into a finable action is uncertain; p. 258. The attack of Cloriius on Cicero in 58 
 -took the form, not of a judicial case, but of an interdict through a plebiscite; p. 446. 
 
 8 P. 291. 
 
 4 Fest. 238. 28; Varro, L. L. v. 158; Ovid, Fast. v. 283 ff.; Tac. Ann. ii. 49. 
 6 Livy xxxiii. 42. IO. 6 Livy xxxv. 10. II. 
 
 ' Livy xxxv. 41.9. 8 Livy xxxviii. 35. 5 f. 
 
 9 Piso, in Pliny, N. H. xviii. 6. 41 ; Serv. in Ed. viii. 99; Mommsen, Rom. Staatsr. 
 ii. 493, n. 2. 
 
 10 Val. Max. vi. 17; Plut. Marcell. 2; Lange, Rom. Alt. i. 823; ii. 585. 
 
326 THE ROMAN ASSEMBLIES 
 
 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. 1 About the time of the war with Hannibal a charge of 
 incest, based on the fact of intermarriage between close rela- 
 tives and brought doubtless by an aedile, was judged favorably to 
 the accused by the people. 2 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 ac- 
 cordingly had to be dropped. 3 
 
 One case of perduellio under aedilician jurisdiction is recorded. 
 In 246 Claudia, sister of that P. Claudius Pulcher who lost his 
 fleet off Drepanum, 4 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. 5 The case is described as a 
 iudicium maiestatis apud populum Romanum. 6 
 
 The jurisdiction of the aediles as well as that of the tribunes 
 
 1 Livy xxv. 2. 9; cf. Lange, Rom. Alt. ii. 585. The statement of Gellius v. 19. 
 10, that women had nothing to do with comitia (" Feminis nulla comitiorum com- 
 munio est "), does not refer to their lack of suffrage, as Lange assumes, for Gellius is 
 explaining why women could not be arrogated. Originally they had no right to be 
 present in contiones or comitia; but in time the principle was modified to a limited 
 extent ; p. 147. It was not necessary, however, that the accused should be present 
 in person during the trial ; Mommsen, Rom. Staatsr. ii. 496. 
 
 2 Plut. Q. R. 6; Lange, Rom. Alt. i. 126; ii. 585. 
 
 8 Ateius Capito, in Gell. iv. 14. i P. 248, 317. 
 
 6 Ateius Capito, in Gell. x. 6; Livy, ep. xix; Val. Max. viii. I. damn. 4; Suet. Tib. 
 2; Mommsen, Rom. Staatsr. ii. 492, n. 4. This, says Mommsen, is the only 
 aedilician prosecution for a crime committed directly against the state in the period 
 after the decemviral legislation. With this case compare Cicero's threat mentioned 
 in the text below. 6 Suet. Tib. 2. 
 
JURISDICTION OF THE TRIBES 327 
 
 suffered from the growth of standing courts. 1 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 proceed- 
 ings instituted by C. Flavius Fimbria, aedile in 86, against Q. 
 Scaevola. Evidently the case did not come to vote. 2 Interest- 
 ing is the threat of Cicero 8 as curule aedile to bring to trial 
 before the people C. Verres and all who should by bribery aid 
 his acquittal. The circumstance that Cicero was ready to place 
 so great a function upon the aedileship is proof of the confusion 
 into which the ideas of popular jurisdiction had fallen through 
 infrequent use.* Another anomaly is the prosecution begun by 
 P. Clodius against T. Annius Milo on the charge of violence 
 (vis). 6 It took place in the Forum before the comitia tributa, 
 but we do not know whether it came to a vote. 
 
 III. Pontifical Jurisdiction 
 
 In the exercise of his disciplinary power the supreme pontiff 
 sometimes imposed a fine on a sacerdos under his authority. 
 An appeal to the thirty-five tribes was allowed, if the amount of 
 the penalty reached the appealable limit. 6 After the analogy 
 of the civil magistrate the pontiff presided over the assembly 
 during the trial. 7 In 189 Q. Fabius Pictor, who was at the 
 same time praetor and flamen Quirinalis, was forbidden by the 
 supreme pontiff to go to the province assigned him. After 
 much contention the pontiff imposed a fine, and an appeal was 
 
 1 Lange, Rom. Alt. ii. 586; Mommsen, Rom. Staatsr. ii. 496. 
 
 2 Cic. Rose. Am. 12. 33; Val. Max. ix. 11. 2; Lange, ibid. iii. 134; Greenidge, 
 Leg. Proced. 352. 
 
 Valerius Maximus, vi. 1. 8, refers to a prosecution (probably aedilician) of Cn. 
 Sergius by Metellus Celer for stuprum, which seems to have occurred about this 
 time ; cf. Mommsen, Rom. Staatsr. ii. 493, n. 4. 
 
 8 Verr. i. 12. 36; v. 58. 151; 67. 173; 69. 178; 71. 183. 
 
 4 Cf. Lange, Rom. Alt. ii. 586. 
 
 6 Cic. Q. Fr. ii. 3; Sest. 44. 95; Vat. 17. 40; Ascon. 49; Dio Cass, xxxix. 18 ff.; 
 Lange, Rom. All. ii. 586; Mommsen, Rom. Staatsr. ii. 493, n. I; Greenidge, Leg. 
 Proced. 341, 353. 
 
 On the aedilician jurisdiction in general, see especially Girard, Org.jud. d. Rom. 
 243 ff. 6 P. 269, 287. 
 
 7 Wissowa, Relig. u. Kult. d. Romer, 439 f.; Mommsen, Rom. Staatsr. i. 195 f.; 
 ii. 36- 
 
328 THE ROMAN ASSEMBLIES 
 
 taken to the people, who decided that the flamen must obey the 
 pontifex maximus, and on that condition remitted the fine. 1 In 
 1 80 L. Cornelius Dolabella was fined for refusal to resign his 
 office of naval duumvir that he might be inaugurated rex sacri- 
 ficulus. The case was decided as the preceding, but an unfa- 
 vorable omen which dissolved the assembly deterred the pontiffs 
 from inaugurating him. 2 A similar case occurred in 13 1. 3 In 
 the appeal of Claudius, an augur, from a pontifical fine, the 
 date of which is unknown, though it probably followed the 
 trials above mentioned, the people sustained the accused.* 
 These are the few recorded cases of appeal from sacerdotal 
 jurisdiction. The moderation of the pontifex maximus, to- 
 gether with the respect of his sacerdotes for religion, usually 
 served to prevent the need of recourse to the people. It is a 
 noteworthy fact that the custom was practically conterminous 
 with the era of the most highly developed plutocracy. The 
 circumstance that in all the cases known to have fallen within 
 this period the people confirmed the authority of the pontiff 
 affords striking evidence of the perfection to which the opti- 
 mates had now brought the religious machinery of their politi- 
 cal system. 6 
 
 From what has been said on the judicial functions of the 
 comitia in this and earlier chapters, it is clear that the jurisdic- 
 tion of the people is inseparably connected with the political 
 and constitutional history of Rome. Beginning feebly in the 
 early republic, the right of appeal was most intensely exercised 
 from the middle of the third to the middle of the second cen- 
 tury b.c. Its decline thereafter, owing mainly to the rise of the 
 quaestiones, was a symptom of the general decay of the republic. 
 
 *_ Peter, C, Epochen der Verfassungsgesch. der rom. Republik, 1 18-140 (on 
 the general character of the period) ; Ihne, W., History of Rome, iv. 125 ff., 
 x 7 1- 3> 321-32 ; Mommsen, Rom. Staatsrecht, ii. 317-27,491-7 ; Die Scipionen- 
 processe, in Rom. Forsch. ii. 417-510; Lange, Rom. AltertUmer, ii. 582-93; 
 Herzog, Gesch. u. Syst. der. rom. Staatsverfassung, i. 811 f., 11 77 f. ; Green- 
 idge, A. H. ]., Legal Procedure of Cicero's Time, 327-66 ; Mispoulet, J. B., 
 
 JLivyxxxvii. 51. 4 f . 2 Livy xl. 42. 9 f. » Cic. Pkil. xi. 8. 18. 
 
 4 Fest. 343. 6; Wissowa, Relig. u. JCult. d. Homer, 439, n. 8. For the pontifical 
 cases above mentioned, see also Lange, Rom. Alt. ii. 593-5. 
 6 Cf. ch. v and p. 322. 
 
JURISDICTION OF THE TRIBES 329 
 
 Les institutions politiques des Romains, i. 228 f. ; Willems, Droit public Romain, 
 175 ff. ; Girard, P. F., Histoire de V organisation judiciaire des Romains, i. 
 235 ff. ; Hallays, A., Cornices a Rome, 70 f. ; Stella Maranca, // tribunato 
 della plebe dalla lex Hortensia alia lex Cornelia ; Gerlach, De vita P. Cornelii 
 Scipionis Africani Superioris; P. Cornelius Scipio Africanus der Aeltere 
 und seine Zeit ; Nissen, Kritische Untersuchungen uber die Quellen der vierten 
 und funften Dekade des Livius, 213 ff . ; Bloch, G., Observations sur le proces 
 des Scipions, in Revue des itudes anciennes, viii (1906). 93-110, 191-228, 287- 
 322; Pascal, C, Studi Rotnani, i: II processo degli Scipioni ; ibid, iii: DEsilio 
 di Scipione Africano Maggiore; Di un studio recente sul processo degli 
 Scipioni, in Riv. d. storia ant. iv (1899). 268-71 ; Niccolini, G., La questione 
 dei processi degli Scipioni, ibid. iii. fasc. 4 (1898). 28-75; articles in Pauly- 
 Wissowa, Real-Encycl. i. 448-64: Aedilis (Kubitschek) ; 584-8 : M. Aemilius 
 Scaurus (Klebs) ; iv. 702-5 : Comitia, part of (Liebenam) ; 1462-70 : P. 
 Cornelius Scipio Africanus Major (Henze) ; 1471-83 : L. Cornelius Scipio 
 Asiagenus (Miinzer) ; v. 1324-7 : Cn. Domitius Ahenobarbus (ibid.) ; Darem- 
 berg et Saglio, Diet. i. 95-100 : Aedilis (Humbert) ; see also ibid. s. Comitia. 
 
CHAPTER XV 
 
 COMITIAL LEGISLATION 
 
 From Hortensius to the Gracchi 
 287-134 
 
 I. An Era of Repose 
 287-232 
 
 The Hortensian enactment which raised the plebiscite to an 
 equality with the lex and gave the tribunician initiative full 
 constitutional freedom 1 seems to have been especially calculated 
 to prepare for a splendid outburst of legislative energy. No 
 such result, however, was actually reached. Circumstances 
 prove the leaders of the plebs to have been well satisfied with 
 the political gains thus far made as regards (1) their place in 
 the senate assured them by the Ovinian statute, 2 (2) their right 
 to the magistracies, confirmed by various laws, (3) the powers 
 of the tribunate and its relation to the senate established by the 
 Hortensian statute. Content with their position as a branch 
 of the widened nobility, inferior neither politically nor socially 
 to the patrician branch, and happy in the enjoyment of author- 
 ity, they were now as much inclined as the patricians to dis- 
 courage and to resist further aggression on the part of the plain 
 citizens. Their control of the initiative in legislation was the 
 chief means of forwarding this policy. Their respect for the 
 senate, in which they were now rapidly becoming the dominant 
 party, was such that they were willing to forego the recently 
 acquired privilege of bringing their rogations before the people 
 without the senatorial sanction. But in case a tribune was so 
 bold and so out of harmony with his political peers as to offer 
 an unsanctioned bill, they could count on the intercession of 
 one of his colleagues; if matters came to an extremity, the 
 
 1 P. 3»3 £ 2 P- 307. 
 
 330 
 
COMITIAL LEGISLATION, 287-134 331 
 
 senate could annul the act after its adoption by declaring it 
 illegal or contrary to the auspices. 1 Evidently the plebeian 
 nobles were aware, too, that with the increase in the number of 
 citizens and with their dispersion over Italy the assembly had 
 ceased to represent the citizen body, and was failing in ability 
 to grapple with the new and increasingly complex problems of 
 administration created by the widening of the Roman domain. 2 
 
 Under these new conditions the assemblies continued, it is 
 true, to elect their annual magistrates and to receive appeals 
 from the judicial decisions of the latter, more rarely to declare 
 war or to ratify a treaty. Occasionally they passed a law to 
 increase the number of magistrates or to regulate elections; 
 but for the fifty-five years following the Hortensian legislation, 
 287-232, there is no record of the enactment of a distinctly 
 administrative law. The silence of history on this point is due 
 not so much to the exceptionally scant sources 8 as to a lack of 
 comitial activity. 
 
 First among the statutes relating to the election of magis- 
 trates is to be placed the Maenian plebiscite, adopted in 287 or 
 thereabout, which directed the patres in case of elections, as 
 the Publilian statute had directed them in case of rogations, 4 
 to give their auctoritas before the voting began, while the 
 issue was still uncertain. 5 Blocking the last efforts of the pa- 
 tricians to monopolize the consulship, 6 the act completed the 
 reduction of the patrum auctoritas to a formality. The sources 
 represent Appius Claudius Caecus as the chief offender whom 
 this law was designed to rebuke. His personality had brought 
 
 'P. 107, 113. 
 
 2 On the lack of a popular opposition to the nobility during this period, see Ihne, 
 Hist, of Rome, iv. 26. On the antiquated character of the assemblies, ibid. 39 f. 
 
 8 For this era we have to depend upon the epitome of Livy and occasional 
 notices of other authors. The complete Livian narrative which treats of the age, 
 should it ever be discovered, would doubtless reveal a considerable number of other 
 comitial measures ; but we could hardly expect to find any of more importance than 
 those which are actually known. 4 P. 235, 300. 
 
 6 Cic. Brut. 14. 55. Cicero informs us that the law under consideration was 
 passed after the tribunate of M\ Curius, which must have preceded his consulship 
 (290). The enactment should preferably be placed after that of Hortensius, when 
 the patres were no longer in a position to oppose it; cf. Lange, Rom. Alt. i. 409; 
 ii. 216, 654; Herzog, Rom. Staatsvtrf. i. 281 f. Willems, Sen. Rom. ii. 69 ff., 
 attempts to assign it to 338. 6 Livy x. 15. 7 B.; Cic. ibid. 
 
332 THE ROMAN ASSEMBLIES 
 
 to the censorship an enormous accretion of power which dis- 
 turbed the constitutional balance. In this period that magistracy 
 assumed also the function of supervising the morals of the 
 citizens. 1 To check this disproportionate growth a law, probably 
 tribunician, of 265 forbade reelection to the office. 2 
 
 The Romans created no more absolutely new magistratus 
 ordinarii. In 267, however, probably by an act of the comitia 
 tributa, they doubled the number of quaestors — from four to 
 eight — in order that the new members of the college might 
 attend to the financial business of the government at various 
 points in Italy. 3 A second praetor was created in 242,* doubt- 
 less by a law, not only for jurisdiction inter peregrinos but also 
 for increasing the number of magistrates available for military 
 commands. 6 The tresviri capitales, instituted in 28c), 6 were 
 given the rank of magistrate by a plebiscite of L. Papirius, 
 adopted after 242, which directed the urban praetor to elect 
 these officials in the comitia tributa. 7 In 241 the people, prob- 
 ably in tribal assembly, granted to L. Caecilius Metellus on 
 account of his blindness the privilege of riding to the Curia in a 
 carriage. 8 
 
 One statute referred to this period 9 belongs to the domain of 
 
 1 Dion Hal. xix. 16. 5 (xviii. 19); xx. 13 (3). 3. 
 
 2 In this year C. Marcius Rutilus, elected censor a second time (Fast. cos. cafit., 
 in CIL. i 2 . p. 22), persuaded the people to adopt this law; Val. Max. iv. i. 3; Pint. 
 Cor. 1; Lange, Rom. All. 1. 797; ii. 122, 654; Herzog, Rom. Staatsverf. i. 317-20; 
 Mommsen, Rom. Staatsr. i. 520. 
 
 8 Livy, ep. xv; Tac. Ann. xi. 22. Lydus, Mag. i. 27, supposes the newly created 
 quaestors to have been naval officers, and wrongly states their number at twelve. 
 Whether the lex Titia de provinciis quaestoriis (Cic. Mur. 8. 18; Schol. Bob. 316) 
 belongs to this date or to some later time cannot be determined; Mommsen, Rom. 
 Staatsr. ii. 532, n. 3; Lange, Rom. Alt. ii. 654. See further on the act of 267, 
 Mommsen, ibid. ii. 527, 570 ff.; Lange, ibid. i. 891; ii. 124. 
 
 4 Livy, ep. xix; Lyd. Mag. i. 38, 45. 
 
 6 Val. Max. ii. 8. 2; Zon. viii. 17. I; 18. 10; Polyb. ii. 23. 5. 
 
 6 P- 3°7. »• '. 3'z- 
 
 7 Fest. 347. 3; cf. Lange, Rom.Alt.i. 884, 910; ii.654; Mommsen, Rom. Staatsr. 
 «• 594 f-; Girard, Organ, jud. d. Rom. i. 263 ff. 
 
 8 Pliny, N. H. vii. 43. 141; cf. Polyb. vi. 16. 3. 
 
 9 We are informed by Theophilus, iv. 3. 15, that this statute was a plebiscite 
 adopted at a secession of the plebs, meaning most probably that of 287. But his 
 view may be merely an inference from Ulpian, in Dig. ix. 2. 1 and Pomponius, ibid, 
 i. 2. 2. 8; cf. Roby, Rom. Priv. Law, ii. 186. The law is the subject of Dig. 
 
COMITIAL LEGISLATION, 287-134 333 
 
 private law. The first chapter of the tribunician lex Aquilia 
 provided " that if a slave of another man, or a quadruped of his 
 cattle, be unlawfully slain, whatever within a year is the highest 
 value thereof, that amount the offender shall pay to the owner." 1 
 The second chapter secured the principal stipulator against 
 adstipulators, and the third provided for all other kinds of 
 damage. 2 It superseded all previous statutes on the subject, 
 including that of the Twelve Tables. 
 
 II. The Flaminian Era 3 
 
 232-201 
 
 Such is the scant list of legislative acts of the half century 
 following the dictatorship of Hortensius (287-232), none of 
 them as innovating as, for instance, the reform of the comitia 
 centuriata brought about in approximately the same period by 
 the power of the censors alone.* The nobles had a certain 
 degree of reason for feeling secure in their control of the 
 administration. But in this respect they miscalculated. The 
 long war with Carthage, which had diverted the attention of all 
 the citizens from politics, ended without bringing in the wake 
 of victory the usual rewards to the masses. No lands in Sicily 
 were assigned to the citizens, while on their northeastern border 
 the Picene district and the territory recently taken from the 
 Gauls in the neighborhood of Ariminum were reserved by the 
 nobles for their own occupation. Popular discontent at these 
 
 ix. 2 f. ; Justinian, Inst. iv. 3 ; Theoph. Inst. iv. 3. Voigt, Rom. Rechtsgesch. i. 69, 
 assigns it to 287. On p. 71 f. he adds other chapters which he has gathered from 
 various sources. See also Karlowa, Rom. Rechtsgesch. ii. 793 ff. Injury committed 
 by dogs was made actionable by the lex Pesolania of unknown though early date; 
 Paul. Sent. i. 15. 1; cf. Dig. ix. I. I. 15. Voigt, Rom. Rechtsgesch. i. 39, n. 18, 
 assigns it to the time closely following the decemviral legislation; cf. Cuq, in 
 Daremberg et Saglio, Diet. iii. 1 158. 
 
 The lex Mamilia concerning arbitri, but not more definitely known (Cic. Leg. 
 i. 21. 55), may belong to the consul C Mamilius, 239. 
 
 1 Gaius iii. 210, Poste's rendering; cf. also the following §§; Justin. Inst. iv. 
 
 3- "5- 
 
 2 Gaius iii. 215, 217; cf. Ulpian, in Dig. vii. 1. 13. 2; Cic. Brut. 34. 131. 
 
 8 As here used, " Flaminian " is not confined to the lifetime of Flaminius, but 
 designates the period during which lasted the impetus given by him to the activity 
 of the assemblies — approximately to the end of the war with Hannibal. 
 
 4 P. 213, 215. 
 
334 THE ROMAN ASSEMBLIES 
 
 short-sighted, selfish proceedings found expression in the roga- 
 tion of C. Flaminius, tribune of the plebs in 232, for the assign- 
 ment of the lands here mentioned to the citizens who were 
 willing to settle on the frontier. 1 It was vehemently opposed 
 by the nobility, 2 and was finally passed without the authoriza- 
 tion of a senatus consultum. 3 From a statement of Cicero* that 
 as long afterward as 228 Q. Fabius Maximus, then consul a 
 second time, was hindering Flaminius from dividing the land, 
 we may infer that the author of the law was elected among the 
 tresviri charged with its administration. 5 Most of the settlers 
 in that region were assigned to the tribe Velina, probably in 
 pursuance of an article of the Flaminian statute. 6 The enact- 
 ment came as a disagreeable interruption to the quiet happiness 
 of the nobles — as a sign that the political battle fought out 
 between comitia and senate in the period ending with the Hor- 
 tensian legislation was to be renewed with perhaps even greater 
 bitterness. Hence Polybius, echoing the complaints of the 
 nobles, denounces the measure as the first step toward the 
 demoralization of the people. 7 The lasting hatred felt by the 
 senators for this new and powerful enemy is seen in their 
 refusal to grant him a triumph for military successes he had 
 won as consul in 223. A plebiscite without their authorization 
 gave the desired privilege to the champion of popular rights. 8 
 It was probably in this connection — at least we are soon to 
 hear of it for the first time — that an act of the people was 
 made essential to a triumph within the city. Henceforth even 
 when the senate was willing to allow a triumph or an ovation, 
 the person thus honored could not hold imperium in the city on 
 
 1 Cato, Orig. ii. 10 (in Varro, P. P. i. 2. 7) : " Ager Gallicus Romanus vocatur, 
 qui vititim cis Ariminum datus est ultra agrum Picentium''; Cic. BrtU. 14. 57; 
 Acad. Pr. ii. 5. 13. There is reason for believing that about this time the Licinian- 
 Sextian agrarian enactments were revived and extended by a comitial statute; 
 p. 296, 363. 
 
 2 Cf. Cic. Inv. ii. 17. 52; Val. Max. v. 4. 5. 
 8 Cic. Acad. Pr. ii. 5. 13; Val. Max. ibid. 
 
 4 Since. 4. ii. 6 cf. Lange, Pom. Alt. ii. 149. 
 
 6 Kubitschek, Pom. trib. or. 26 f.; Mommsen, Rom. Staatsr. iii. 176. 
 
 7 II. 21. 8. On this law in general, see further Ihne, Hist, of Pome, ii. 125-7; 
 iv. 26 f.; Herzog, Pom. Staatsverf. i. 344 ff. ; Long, Pom. Pep. i. 157 f.; Ferrero, 
 Pome, i. 15. 
 
 8 Zon. viii. 20. 7; Plut. Mar cell. 4; cf. Livy xxi. 63. 2. 
 
COMITIAL LEGISLATION, 287-134 335 
 
 the day of such festival excepting by a comitial lex. Usu- 
 ally in cases of the kind the senate, after voting the privi- 
 lege, instructed a praetor to request one of the tribunes to 
 bring a rogatio de imperio before the tribes. 1 The earliest 
 known act of the kind is the plebiscite of 2 1 1 which granted 
 the imperium to M. Marcellus, proconsul on the day of his 
 ovation. 2 
 
 The popular party had not long to wait for an opportunity 
 to retaliate upon the senate for the slight it had offered their 
 champion. On the precedent of the Ovinian law 3 the people 
 had a right to legislate concerning the honors, privileges, and 
 qualifications of its individual members. 4 In 219 accordingly 
 the plebiscite of Q. Claudius, known to have been supported 
 in the senate by C. Flaminius alone, who was then censor, pro- 
 hibited senators and their sons from owning sea-going ships of 
 more than three hundred amphoras capacity. 6 It was probably 
 an article of this statute which forbade the same class of persons 
 to take contracts from the government, with the reservation of 
 such economically insignificant agreements as concerned wor- 
 ship. 6 The peasants, whose interests Flaminius represented, 
 opposed the renewal of the war with Carthage, regarding it as 
 a means of extending the field of commerce and speculation of 
 the nobles. This law therefore expresses the determination of 
 
 1 Livy xlv. 35. 4. 
 
 2 Livy xxvi. 21. 5. Next is mentioned the plebiscite of Ti. Sempronius, 167, for 
 granting the imperium to three promagistrates ; Livy xlv. 35-40; cf. xxxii. 7. 4; 
 xxxviii. 47. I; Plut. Aetnil. 30 ff. The triumphs of Pompey, 80 and 71, must have 
 been made possible by leges de eius imperio, though none are mentioned; Plut. 
 Pomp. 14, 21 ; Cic. Imp. Pomp. 21. 61 f. The lex Cornelia, 80, which permitted 
 Pompey to bring his army home from Africa, was essential to the triumph but was 
 not the law which granted the imperium; Sail. Hist. ii. 21; Gell. x. 20. 10; Plut. 
 Pomp. 13; Lange, Rom. Alt. ii. 678. The law for the triumph over Juba was 
 passed for Caesar in 48 in advance of his victory; Dio' Cass, xliii. 14. 3. There 
 must have been many other such plebiscites not mentioned by the sources. Magis- 
 trates had no more right than promagistrates without especial authorization to 
 command troops within the city limits, though the triumph on the Alban Mount 
 continued to be permissible without an act either of the senate or of the comitia; 
 p. 293. 8 P. 307. 4 Polyb. vi. 16. 3. 
 
 6 Livy xxi. 63. 3; cf. Herzog, Rom. Staatsverf. i. 353, 898; Nitzsch, Rom. Rep. 
 i. 156 f. 
 
 6 Ascon. 94; Dio Cass. Iv. 10. 5; Lange, Rom. Alt. ii. 162, 657; Herzog, Rom. 
 Staatsverf. i. 898. 
 
336 THE ROMAN ASSEMBLIES 
 
 the country people that the senatorial families should no longer 
 share the advantages of such wars. From the point of view 
 of the statesman it was the first step toward the separation 
 of the governing class from the commercial class, with a view to 
 guarding against the administration of the government in the 
 sole interest of capital. The result was not all that could be 
 desired ; the senatorial families found secret ways of placing a 
 great part of their funds in commercial companies; and in so 
 far as the law was actually effective, it compelled senators to 
 invest money in Italian land 1 — a proceeding which contributed 
 largely to the economic ruin of the peninsula. 
 
 In the administration of finance, which in spite of occasional 
 interference on the part of the comitia remained with the senate, 
 is included the regulation of coinage. The comitia passed few 
 acts relating to the subject. The earliest known to history is 
 the misnamed lex minus solvendi of C. Flaminius, consul in 
 217, which introduced the uncial standard for the as, making 
 for ordinary use sixteen asses of an ounce weight equivalent to 
 ten old — in other words, to the denarius. 2 In the payment of 
 soldiers, however, the denarius was still reckoned at ten asses. 3 
 Probably the same law regulated the issue of plated silver 
 denarii 4 and of gold coins. 5 The debtor's gain was offset by 
 the actual decrease in the weight of the as to a little more than 
 an ounce before the enactment of the law. 6 This measure was 
 followed the next year by the plebiscite of M. Minucius, which 
 created the triumviri mensarii, a banking commission for re- 
 lieving the great lack of money (216). 7 The board managed 
 some of the financial business of the state, 8 and undoubtedly 
 did what it could to strengthen private credit, which at this 
 
 1 App. B. C. 1. 7. 29; Plut. Ti. Gracch. 8. 
 
 2 Fest. 347. 14; Pliny, N. H. xxxiii. 3. 45; cf. Hill, Greek and Rom. Coins, 48. 
 According to Festus, Flaminius was author, whereas Pliny states that the change 
 was made under the dictatorship of Q. Fabius Maximus. One seems to refer to the 
 enactment of the law, the other to its administration. 
 
 8 P. 90. 4 Zon. viii. 26. 14. 6 Pliny, N. H. xxxiii. 3. 47. 
 
 6 Bockh, Metrologische Utersuchungcn, p. 472; Mommsen-Blacas, Hist. d. monn. 
 Rom. ii. 67, n. 1; Lange, Rom. Alt. i. 496; ii. 167, 674; Herzog, Rom. Staatsvcrf. i. 
 365; Kubitschek, in Pauly-Wissowa, Real-Encycl. ii. 151 1; Samwer-Bahrfeldt, Rom. 
 Mutism. 190 f. 
 
 ' Livy xxiii. 21. 6; cf. Ihne, Hist, of Rome, ii. 289. 
 
 8 Livy xxiv. 18. 12; xxvi. 36. 8. 
 
COMITIAL LEGISLATION, 287-134 337 
 
 time was at a low ebb. 1 The next step taken by the comitia 
 was the enactment of a plebiscite within a field properly belong- 
 ing to the censors under senatorial supervision — the building 
 and repair of public works. 2 In 212 the act of an unknown 
 tribune, carried through the comitia with the consent of the 
 senate, created three temporary administrative boards — quin- 
 queviri for repairing the defences of the city, triumviri to seek 
 for property belonging to the temples and to register gifts, and 
 another board of three for repairing the temples of Fortune, 
 Mater Matuta, and Hope. These officials were to be elected 
 by the tribes under the chairmanship of the urban praetor. 3 
 Nearly related is the plebiscite of 210, which in pursuance of a 
 senatus consultum directed the censors to farm the vectigalia 
 of the Campanian territory. 4 Evidently in the trying time of 
 the war with Hannibal the senate found it advisable to conciliate 
 the citizens by voluntarily bringing a few administrative meas- 
 ures of the kind before it. All this legislation was due more or 
 less directly to the influence of Flaminius. A succession of 
 sumptuary laws may be likewise traced to his second consul- 
 ship, 217. The Twelve Tables contained a number of laws re- 
 lating to funerals, designed to preserve good order and to pre- 
 vent extravagant expense. 5 After their ratification the author- 
 ity of the magistrates and especially of the censors sufficed for 
 the maintenance of good conduct, till in the period of the Punic 
 wars the character of the people began to suffer deterioration, 
 whereupon the assemblies undertook to enact new laws for the 
 enforcement of morality. One of the earliest was the lex alea- 
 ria, which prohibited the game of dice. Its mention by Plautus 
 makes it prior to 204. 6 The name of the author is not given; 
 and for that reason we cannot be sure that it was a comitial law. 7 
 To the same period belongs the plebiscite of P. and M. Silius 
 
 1 Livy xxxvii. 51. 10; cf. Lange, R'dm. Alt. ii. 173 f.; Herzog, Rom. Staatsverf. i. 
 365. 2 Cf. Livy xli. 27; Polyb. vi. 17. 
 
 8 Livy xxv. 7. 5 f. 4 Livy xxvii. 11. 8. 
 
 5 Tab. x, in Scholl, Duod. Tab. Rel. 153 ff.; Marquardt, Privatl. d. Rom. 345. 
 
 6 Mil. 164; Hor. Od. iii. 24. 58; Ovid, Trist. ii. 471 ff.; cf. Cic. Phil. ii. 23. 56; 
 Pseud. Ascon. no; Hartmann, in Pauly-Wissowa, Real-Encycl. i. 1359. It re- 
 mained in force to the end of the republic. Other laws on gambling, which cannot 
 be assigned to dates, were the lex Cornelia (Dig. xi. 5. 3), the lex Publicia (ibid.), 
 and the lex Titia (ibid.). 7 Lange, Rom. Alt. ii. 663, 670. 
 
 z 
 
338 THE ROMAN ASSEMBLIES 
 
 concerning weights and measures. 1 The first comitial sumptu- 
 ary statute is the lex Metilia (217), probably tribunician, passed 
 under the influence of C. Flaminius and L. Aemilius, who were 
 censors in 220. It prescribed certain rules for the preparation 
 of cloth. 2 The object, in Lange's 3 opinion, was to strike at the 
 luxury of the nobles through the guild of fullers. It was a 
 warning to them, he asserts, which however they failed to heed. 
 If this was indeed the object, the means were surprisingly feeble. 
 The next sumptuary law was the plebiscite of C. Oppius, 215, 
 directed against the luxury of wealthy women. It forbade a 
 woman to wear more than a half ounce of gold or a dress of 
 various colors or to ride in a carriage in a city or town or within 
 a mile of either, excepting when engaged in public worship. 4 
 The author must have sympathized with the tendency of Fla- 
 minius, and the law was supported, or at least not opposed, by 
 the nobility. Twenty years afterward their best representatives 
 strove in vain to maintain it against the rising tide of wealth 
 and luxury. 5 
 
 The influence of Flaminius on legislation may be traced still 
 farther. Under the economic distress of the war with Hanni- 
 bal the plebs began to lapse into clientage to the nobles. In 
 spite of the principle that the patron should accept no honora- 
 rium for legal service, 6 the nobles began by the requisition of 
 gifts to render the commons tributary to themselves. 7 The 
 chief occasion for these exactions was found in the Saturnalia, 
 which was reconstituted in 217. 8 To check the abuse the Pub- 
 lician plebiscite mentioned by Macrobius, 9 undoubtedly of C. 
 Publicius Bibulus, the popular tribune of 209, 10 prohibited all 
 gifts from the poor to the rich on that festival with the excep- 
 
 1 Fest. 246. 32; Lange, Rom. Alt. ii. 662. 
 
 2 Pliny, N. H. xxxv. 17. 197. AM. Metilius was tribune in 217. 
 8 Rom. Alt. ii. 161 f., 670; cf. Herzog, R'om. Staatsverf. i. 354. 
 
 4 Livy xxxiv. I ff.; Tac. Ann. iii. 33 f.; Oros. iv. 20. 14; Zon. ix. 17; cf. Ihne, 
 Hist, of Rome, ii. 290. 
 
 6 P. 356. The lex lenonia mentioned by Plautus (Fest. ep. 143), if indeed it is 
 not a mere joke, should also be classed as sumptuary; cf. p. 528, n. 2. 
 
 6 Polyb. vi. 56; Plut. Rom. 13. 
 
 7 Livy xxxiv. 4. 9 : " Vectigalis iam et stipendiaria plebs esse senatui coeperat." 
 
 8 Livy xxii. I. 19; Wissowa, Relig. u. Kult. d. Rom. 170. 
 
 9 Sat. i. 7. 33. 1° Livy xxvii. 20. II. 
 
COMITIAL LEGISLATION, 287-134 339 
 
 tion of wax candles. It was supplemented in 204 by the plebi- 
 scite of M. Cincius Alimentus, 1 which absolutely forbade gifts 
 and fees for legal service. 2 The prohibition of a magistrate's 
 acceptance of gifts for the performance of official duty was un- 
 doubtedly included in it. 3 Moreover it forbade all gifts above a 
 specified amount, but with exceptions in favor of various rela- 
 tives and benefactors.* 
 
 It is not unlikely that the Flaminian age saw the earliest 
 comitial legislation governing judicial procedure in private 
 cases. 5 Some changes were wrought, too, in family law by 
 popular vote. In early time intermarriage between persons of 
 the sixth degree of kinship was forbidden by usage ; 6 but in the 
 period between the first and second Punic wars the right was 
 
 1 Livy xxix. 20. 1 1. 
 
 2 Livy xxxiv. 4.9; Cic. Since. 4. 10; Oral. ii. 71. 286; Alt. i. 20. 7; Fest. ep. 
 143, including a quotation from Plautus; Tac. Ann. xi. 5; xiii. 42; xv. 20; Frag. 
 Vat. 260 ff. (Ad legem Cinciam de donationibus) ; Bruns, Quid conferattt Vaticana 
 fragmenta ad melius cognosemdum ius Romanum, 1 1 2 ff . ; Herzog, Rom. Staatsverf. 
 i. 366; Garofalo, in Bull, dell' ist. di diritt. Rom. xv (1903). 310-2. In the opin- 
 ion of Lange, Rom. Alt. ii. 191, the law may have resulted in part from the selfish- 
 ness of the rich, with a view to checking the presentation of gifts among them- 
 selves. 
 
 8 CicLeg. iii. 4. II; Lex Jul. Col. Gen. 93; Mommsen, Ephem. Ep. ii. 139; Bruns, 
 Font. Iur. p. 123. 
 
 4 Vat. Frag. 294, 298-309; Faulus, Sent. v. II. 6; Roby, Rom. Priv. Law, i. 526 f. 
 
 6 Such was the lex Pinaria, which ordered the appointment of a judge on the 
 thirtieth day after an action was instituted (Gaius iv. 15); also the lex Silia creating 
 the legis actio per condictionem, for the recovery of a certain sum of money, ex- 
 tended by the lex Calpurnia so as to apply to any certain object; Gaius iv. 18 f., and 
 comment by Poste; Greenidge, Leg. Proced. see index, s. Lex Calpurnia and Silia; 
 Roby, Rom. Priv. Law, ii. 71 ; Karlowa, Rom. Rechtsgesch. ii. 594; Rom. Civilprocess, 
 230 ff.; Voigt, Rom. Rechtsgesch. i. 44 ff. On the probable date, Lange, Rom. Alt. 
 see indices, s. v. — The lex Crepereia, having to do with a legis actio before the cen- 
 tumviral court, set the sponsia at a hundred and twenty-five sesterces; Gaius iv. 95. 
 — The lex Aebutia tended to substitute for the legis actio the formulary process of 
 later time; Gaius iv. 30 f.; Gell. xvi. 10. 8; Greenidge, ibid. 93, 170 ff.; Roby, ibid, 
 ii. 347; Karlowa, Rom. Civilproc. 216, 324; Voigt, ibid. 124 ff. Lange assigns these 
 laws to the period of the war with Hannibal, Voigt to earlier time. 
 
 To the year 214 Lange, Rom. Alt. ii. 660, assigns the lex Atinia on the usucapio 
 of stolen property; Gell. xvii. 7; Just. Lnst. ii. 6. 2; Dig. xli. 3. 4. 6; cf. Roby, ibid, 
 i. 475. — No date can be found for the lex Licinnia de actione communi dividundo; 
 Marcianus, in Dig. iv. 7. 12. 
 
 6 Livy xx, Frag.; Kruger and Mommsen, in Hermes,'\v (1870). 371-6; Tac. Ann. 
 xii. 6. Livy states that a marriage of a patrician with a relative of the sixth degree 
 caused a riot of the plebs, which drove the patres for refuge to the Capitol. 
 
340 THE ROMAN ASSEMBLIES 
 
 extended to relatives of the fifth and sixth degrees, 1 and shortly 
 afterward to those of the fourth degree (consobrini). 2 Another 
 law, the lex Atilia, enacted between 242 and 186, 3 probably in 
 the second Punic war, 4 directed the urban praetor to appoint a 
 tutor for a woman or child who was left without a natural pro- 
 tector. 6 It now became possible, too, for a magistrate under 
 justifying circumstances to place a young man under twenty- 
 five in the care of a curator, in accordance with the Plaetorian 
 law, 6 which was enacted before 192, 7 and which belongs there- 
 fore to the Flaminian age. 8 
 
 In the same period we find the comitia active in other fields. 
 In 215 a tribal law of an unknown author granted the citizen- 
 ship to three hundred Campanian knights who had remained 
 faithful to Rome, and assigned them to the municipium of 
 Cumae. 9 Following a precedent set by the Antistian plebiscite 
 of 3I9, 10 L. Atilius, tribune of the plebs in 210, carried a law, in 
 pursuance of a senatus consultum, for granting the senate abso- 
 lute power over the Campanians who had revolted ; u and the 
 senate accordingly not only punished them with loss of citizen- 
 ship but reduced them to miserable subjection. 12 The right of 
 the comitia to ratify a vow of a sacred spring was recognized in 
 217 by an opinion rendered by the pontiffs, 13 and was first exer- 
 cised through a plebiscite of that year. 14 The appointment of 
 commissioners for the dedication of temples also belonged to 
 
 1 Ulpian, Frag. v. 6; cf. De gradibus cognationum. 
 
 2 Plut. Q.J?. 6; Livy xlii. 34. 2 (case of a man's marrying his cousin shortly after 
 the war with Hannibal); Lange, Rom. Alt. i. 126; ii. 659 f.; Marquardt, Privatl. 
 d. Rom. 30 f. 
 
 B Livy xxxix. 9. 7. * Lange, Rom. Alt. ii. 659 f. 
 
 6 Cf. Lange, ibid. i. 231; Karlowa, Rom. Rechtsgesch. ii. 27. It supplemented the 
 Twelve Tables, v. 1 f. (Gaius i. 144; ii. 47; Scholl, Duod. Tab. Rel. 126). 
 
 6 Cic. Off. iii. 15. 6i; N.D. iii. 30. 74; Varro, L. L. vi. 5; Lex Iul. Munic. 
 H2- 7 Plaut. Pseud. 303; Rud. 1382. 
 
 8 The author may have been the Plaetorius who carried a law concerning the ur- 
 ban praetor; p. 342, n. 1 ; Karlowa, Rom. Rechtsgesch. ii. 306, thinks it the result of 
 continual war, which while giving young men experience in military affairs, deprived 
 them of the opportunity to acquaint themselves with the management of property. 
 
 9 Livy xxiii. 31. 10. 10 P. 310. 
 
 11 Livy xxvi. 33. 10-4. For the decree of the plebs, § 14: " Quod senatus iuratus, 
 maxima pars, censeat, qui adsient, id volumus iubemusque." 
 
 12 Ibid. ch. 34. is Livy xxii. 10. 1. 
 
 14 It is given in full by Livy xxii. 10; cf. xxxiii. 44. 1 {.; xxxiv. 44. 1-3. 
 
COMITIAL LEGISLATION, 287-134 341 
 
 the assembly, 1 as well as the regulation of religious festivals. 2 
 The greatest gain made by the people within the province of 
 religious legislation in the third century b.c. was the provision 
 for electing the pontifex maximus by seventeen tribes drawn by 
 lot from the whole number thirty-five and presided over by a 
 pontiff. This innovation probably belongs to the Flaminian era 
 and certainly to the time before 212, when the first instance of 
 such an election is given. 3 The act was followed by another, 
 before 209, which authorized the election of the chief curio in 
 the same way. 4 The object was to take the control of these 
 places from the nobles, who looked upon the great sacerdotal 
 collegia as a main support of their political power. 5 It was but 
 the beginning of a movement for transferring the appointment 
 of all members of these collegia to the comitia sacerdotum, made 
 up as above described. In the peculiar composition of assem- 
 blies of this character we see an attempt to make the gods in 
 some degree coadjutors of the populace in filling the sacred 
 places. 6 
 
 The assembly was merely exercising a long-recognized right 7 
 in the institution of two new praetors in 227, for which we are 
 
 1 The consular law of Ti. Sempronius Longus, 215, appointing duumviri, one of 
 them the builder, Q. Fabius, for dedicating the temple of Venus Erucina; Livy xxiii. 
 30. 13. f. — The lex granting Q. Lutatius Catulus permission to dedicate the Capito- 
 line temple, 78; Cic. Verr. II. iv. 31. 69; 38.82; CIL. i. 592. — The rogation of the 
 praetor Caesar, 62, which threatened to deprive Catulus of the function; Suet, Cats. 
 15; Dio Cass, xxxvii. 44. 2. 
 
 2 In consequence of a pestilence a pretorian law of F. Licinius Varus, 208, placed 
 the games in honor of Apollo in the class called stativi — those which were cele- 
 brated annually on stated days; Livy xxvii. 23. 7; xxx. 38. 10 f.; cf. Wissowa, Relig. 
 u. Kult. d. Rom. 241; Fowler, Roman Festivals, 179 f. 
 
 8 Livy xxv. 5. 2, for the first instance and for the pontifical presidency. Such a 
 departure in favor of the people was hardly possible in the period of comitial stagna- 
 tion preceding the tribunate of Flaminius, 232; and the law must have been passed, 
 or at least amended, after the institution of the last two tribes; for it specified 
 definitely seventeen tribes; Cic. Leg. Agr. ii. 7. 16. On this measure, see Mommsen, 
 Rom. Staatsr. ii. 27 f.; Wissowa, Relig. u. Kult. d. Rom. 437; Lange, Rom. Alt. ii. 
 131. Pais, Velezione del pontefice massimo, etc. (1908), maintains on the contrary 
 that the plebiscite in question was passed about 254, and that it resorted to seventeen 
 tribes as the legal half of the total number (33) then existing. On the use of the 
 word comitia, see p. 130 above. 
 
 4 The first recorded instance occurs at the date mentioned; Livy xxvii. 8. 1-3. 
 
 6 Cf. Cic. Sest. 46. 98. 6 P. 391. 7 P. 234, 305, 306. 
 
342 THE ROMAN ASSEMBLIES 
 
 warranted in assuming a legislative act. 1 The same observation 
 applies to the increase in the number of elective military 
 tribunes from sixteen to twenty-four in 207, 2 which was evi- 
 dently a concession to the commons. As the senate generally 
 attended to the prolongation of the imperium, 8 the confirmation 
 of a senatorial decree to that effect by an act of the people in 
 208 4 was exceptional. Far more radical was the plebiscite of 
 M. Metilius, 217, for equalizing the power of the dictator with 
 that of the master of horse. 5 This act and the resort to election 
 for filling the office 6 destroyed the value of the institution. 7 A 
 violent departure from usage was attempted in 209 by the roga- 
 tion of C. Publicius Bibulus, tribune of the plebs, for abrogating 
 the proconsular imperium of M. Claudius Marcellus. On this 
 occasion not merely the plebs but all classes attended the 
 assembly, which by an overwhelming vote rejected the proposi- 
 tion. 8 Three quarters of a century were to pass before a law of 
 the kind could actually carry. 9 
 
 A plebiscite known to have been in force in the time of the 
 second Punic war 10 debarred from the tribunate and aedileship 
 of the plebs any person during the lifetime of a father or 
 grandfather who had filled a curule office. As the aim was 
 to free the plebeian officials from the influence of the nobility, 
 exercised through the patria potestas, that they might be in 
 
 1 Livy, ep. xx ; Dig. i. 2. 2. 32. Lange, Rom. Alt. i. 784 ; ii. 152, 654, conjectu- 
 rally identifies it with the Plaetorian plebiscite, which assigned two lictors to the 
 urban praetor when acting as judge, and defined his jurisdiction; Censorin. 24. 3. 
 
 2 Livy xxvii. 36. 14; p. 306 above. In 171 because of the impending Macedonian 
 war the consular lex Licinia Cassia permitted the consuls to name their tribuni mili- 
 tum (Livy xliii. 31) — a precedent followed thereafter in emergencies. 
 
 8 P. 305; Polyb. vi. 15. 6. 
 
 4 Livy xxvii. 22. 6. On the comparatively frequent use of the promagistracy dur- 
 ing the war with Hannibal, see Ihne, Hist, of Rome, iv. 310. 
 6 Livy xxii. 25; Herzog, Rom. Staatsvtrf. i. 355. 
 
 6 Polyb. iii. 87. 6; Livy xxii. 8. 5 f. 
 
 7 Cf. Herzog, ibid. i. 358 f.; Mommsen, Rom. Staatsr. ii. 169. 
 
 8 Livy xxvii. 20. 11-3; 21. 1-4; Plut. Marcell. 27. It is surprising that in 204 
 the question of abrogating the proconsular imperium of Scipio through a plebiscite 
 was discussed in the senate; Livy xxix. 19. 6. 
 
 The grant of a burial place "virtutis caussa senatus consulto populique iussu" 
 (CIL i. 635) to a C. Poplicius Bibulus was not to this Bibulus but to some unknown 
 person of the same name near the close of the republic. 
 
 9 P. 360. 10 Livy xxvii. 21. 10; xxx. 19. 9. 
 
COMITIAL LEGISLATION, 287-134 343 
 
 a better position to serve the interests of their constituents, 
 we may reasonably suppose this measure to have passed in 
 the time of Flaminius and under his influence. The tendency 
 was to widen the breach then forming between the nobility 
 and the commons. 1 The right of the people to dispense from 
 the law was acknowledged by the senate in 217, when, after 
 the destruction of the army at Trasimene and the death of 
 Flaminius, the patres authorized a plebiscite for dispensing 
 the consulars for the remainder of the war from the Genucian 
 plebiscite which forbade reelection to the same office excepting 
 after an interval of ten years. 2 
 
 From what has been given above it is clear that Flaminius 
 began a new era in legislation, by no change in the constitu- 
 tion, but rather by assuming the free initiative granted the 
 tribunes of the plebs through the Hortensian statute. Under 
 the influence of his personality the comitia recovered the 
 share in the administration which they had lost in the half 
 century of lethargy just passed, and even made new inroads 
 into the province of magisterial and senatorial authority. While 
 the disaster at Cannae, following hard upon that of Trasimene, 
 subdued the rising spirit of popular independence, it made 
 the senate more conciliatory, 3 with the result that neither did 
 the comitia lapse into its former repose nor did the nobles 
 lose their hold on the government. It was to this era, more 
 definitely to the opening of the war with Hannibal, that the 
 description of the constitution by Polybius 4 applies. The 
 political condition of Rome was improving, 6 or was just at its 
 zenith. 6 As the senate was at the height of its power, public 
 measures were deliberated upon, not by the many, but by 
 the best men. 7 Political life was sound, elections were pure, 
 
 1 Lange, Rom. Alt. i. 850, 861; ii. 151, 654. 
 
 2 Livy xxvii. 6. 7; cf. p. 298 above. Two other dispensations from laws by act 
 of the people are recorded for the latter part of this century: (1) the plebiscite 
 of 203, which exempted C. Servilius from the law prohibiting the election of a 
 man to the plebeian tribunate or aedileship in the lifetime of a father who had 
 filled a curule office (Livy xxx. 19. 9) ; (2) a plebiscite of 200 for permitting 
 L. Valerius Flaccus to take the oath of office for the aedileship as a proxy for his 
 brother, who being flamen Dialis was forbidden to swear; Livy xxxi. 50. 7-9. 
 
 3 Cf. Herzog, Rom. Siaatsverf. i. 369. 
 
 «VI. 11. 1. 6 VI. si. 3. 
 
 6 Ibid. § 5. 7 Ibid. § 7. 
 
344 THE ROMAN ASSEMBLIES 
 
 and a scrupulous fear of the gods remained the strongest 
 support of the commonwealth. 1 At this epoch the three chief 
 constitutional elements — magistrates, senate, and comitia — 
 were so perfectly balanced that even a native would hardly 
 be able to say whether the form of government was monarchy, 
 aristocracy, or democracy. 2 In this equilibrium of forces, in 
 this mutual power of checking or strengthening, lay the might 
 and the excellence of the constitution. 3 
 
 It is solely with the place of the assemblies in this system 
 that we are at present concerned. Inasmuch as the consuls 
 were supreme masters of the home administration, as well 
 as of the actual conduct of war, 4 and as the senate controlled 
 finance, diplomacy, and all interstate judicial business affecting 
 the Italian allies, 6 what part in the government could have 
 been left to the people? Polybius answers a most weighty 
 part. They are constitutionally the sole fountain of honor 
 and punishment, by which alone governments and societies 
 are held together. Not only are they in a position to discrimi- 
 nate between the fit and the unfit in elections to office, but 
 they are the sole court for trying cases involving life and 
 death. The death penalty, however, may be avoided by volun- 
 tary exile, if undertaken before a majority has been reached 
 in the process of voting. 6 Even finable actions in which the 
 proposed penalty is considerable, especially when the accused 
 has held a higher magistracy, come before them. It is they 
 who bestow offices on the deserving — the most honorable 
 reward which the constitution grants to virtue. It is they 
 who have absolute power to decide concerning the adoption 
 or repeal of laws; and most important of all, it is they who 
 deliberate concerning war and peace, and who ratify or reject 
 proposals for alliances, truces, and treaties. 7 These facts 
 might lead one to suppose that the supreme power is with 
 the people and that the government is a democracy. 8 In the 
 
 1 Polyb. vi. 56. 2 Ibid. n. 11. s yi. 18. 
 
 4 VI. 12. s VI. 13. 6 p. 2ly> n , s- 
 
 7 A plebiscite of M\ Acilius and Q. Minucius, 201, ordered the senate to negotiate 
 peace with Carthage; Livy xxx. 43. 2. Tribal ratification may be assumed for every 
 treaty, and for that reason is generally not mentioned in this volume. 
 
 8 Polyb. vi. 14. 
 
COMITIAL LEGISLATION, 287-134 345 
 
 domestic administration the consuls are dependent on them 
 for authorizing various kinds of business and are under obli- 
 gations to execute their decrees. 1 In war, however distant 
 from home, the consul must still court their favor, to secure 
 their ratification of his arrangements for peace; and on laying 
 down his office he is liable to prosecution before them for 
 maladministration. 2 Hence he can afford to neglect them no 
 more than he can the senate. 8 
 
 The senate, too, is dependent upon the people for ratifying 
 all serious penalties imposed by the courts, which are made up 
 of senators. 4 Similarly in matters directly concerning that body, 
 the people have power to accept or reject proposals for dimin- 
 ishing its traditional authority, for depriving its members of 
 dignities or offices, or even for lessening their means of liveli- 
 hood. 5 But the greatest popular restriction upon its authority 
 is the tribunician veto, which can prevent it from passing a 
 decree or even from holding a meeting. As the tribunes are 
 under obligations to carry into effect the decisions of the people 
 and in every way to have regard for their wishes, — for this and 
 for the other reasons mentioned, the senate respects the people 
 and cannot fail to neglect their feelings. 6 
 
 From the foregoing remarks of Polybius it is clear that in 
 the political theory of his time the will of the multitude when 
 expressed by a comitial act prevailed, in other words that the 
 people were sovereign. Several checks on their action from 
 the side of the senate and magistrates he mentions, especially 
 the absolute power of life and death exercised by the consuls in 
 war over those under their command, 7 and the control over the 
 citizens wielded by the senate through the management of public 
 contracts and through filling the courts from its own number. 
 But the most important limitation, implied throughout this dis- 
 cussion though never expressly mentioned, is the lack of popular 
 initiative. The people could convene for no business whatever 
 
 1 Polyb. vi. 12. 4. 2 VI. 15. 9 f. 8 Ibid. § n. 
 
 4 VI. 16. if. Polybius speaks of the decisions of the senate; but since that body 
 as a whole was not a court, and since there was no appeal from either the special or 
 the standing quaestiones, he must be thinking here of the consilia of the magistrates, 
 which also were composed of senators. 
 
 6 VI. 16. 3. Doubtless he has in mind the Claudian statute of 219; p. 335. 
 
 6 VI. 16. 4f. 7 VI. 17. 9. 
 
346 THE ROMAN ASSEMBLIES 
 
 unless summoned by a magistrate. They could consider no 
 other subject than that proposed to them by the president; 
 they could take no part in the deliberation excepting in so far 
 as the president granted permission to individuals ; they could 
 merely vote yes or no on the question presented to them. 1 
 Notwithstanding the theory of popular sovereignty these con- 
 ditions prevented the rise of a real democracy ; they placed the 
 assemblies under the control of the magistrates, who as a rule, 
 including even the tribunes, were willing ministers of the senate. 
 The bridled masses were rendered more obedient by the dis- 
 asters of the war with Hannibal, and the nobles were soon 
 to grow arrogant and violent through a surfeit of wealth and 
 power. 2 Under these new circumstances the docility of the 
 commons made possible the thorough organization of plutocracy 
 on the basis of a democratic theory of government. 
 
 III. The Era of the Completed Plutocracy, based on 
 a Recognition of Popular Sovereignty 
 
 201-134 
 
 The period from the close of the war with Hannibal to 
 the tribunate of Ti. Gracchus is marked by no such display of 
 comitial energy as that which characterized either the pre- 
 Hortensian age or the epoch introduced by Flaminius. In 
 return for a spurious freedom and a pretended share in the 
 administration the assembly became the handmaid of the 
 plutocracy. 
 
 There was, as usual, some legislation of the old kind concern- 
 ing magistrates. In 198 the number of praetors was increased 
 to six. 3 The arrangement was modified by the consular statute 
 of M. Baebius, 181, which provided for the election of four and 
 six on alternate years, 4 with the object of giving the governors 
 of the Spains a biennial term. 6 The greedy office-seekers by 
 another statute brought about the repeal of this arrangement 
 
 1 P- 33. 173- 2 Polyb. vi. 18. 5-8; Sail. lug. 41. 
 
 8 Livy xxxii. 27. 6. A law may be assumed for this act. 
 
 4 Livy xl. 44. 2; cf. Mommsen, Rom. Staatsr. ii. 198, n. 4; more accurately, 
 Lange, Rom. All. ii. 259, 655; Klebs, in Pauly-Wissowa, Real-Encyd. ii. 2728. 
 6 Cf. Arnold, Rom. Prov. Administr. 47. 
 
COMITIAL LEGISLATION, 287-134 347 
 
 in 1 79. 1 The only new office was that of the tresviri epulones, 
 instituted by a plebiscite of C. Licinius Lucullus, 196. Their 
 function was to attend to certain religious festivals, especially to 
 the feast of Jupiter held on November 13. The law provided 
 that these officials should wear the toga praetexta just as did 
 the pontiffs. 2 
 
 A stage in the development of the plutocracy and of its 
 control over the plebeian tribunate is marked by the enactment 
 of the lex annalis of L. Villius, tribune of the plebs in 180. This 
 statute not only fixed the ages at which men might sue for and 
 hold the various patrician magistracies, 3 but also, developing a 
 custom already in existence, established an interval, evidently of 
 two years, 4 between consecutive magistracies. The stated object 
 was to curb the greed for office which the young nobles were 
 manifesting 6 as well as the eagerness of the people to favor 
 •such ambitious persons, and for that reason it received the 
 ■support of Cato. 6 While it prevented the Scipios and the 
 Flaminini from creating a dynastic oligarchy, by checking 
 the growth of exceptional talent and by subjecting statesmen 
 to a fixed routine of honors and functions it subordinated the 
 individual to the class, and in this way aided the consolidation 
 of the senatorial plutocracy. 7 To the same period, at all events 
 after 194, 8 belong the Licinian and Aebutian plebiscites, which 
 
 1 Cato, Oral, xxv; Fest. 282. 28; Non. Marc. 470; Livy xl. 59. 5. 
 
 a Livy xxxiii. 42. 1; cf. Cic. Orat. iii. 19. 73; Lange, Rom. Alt. ii. 211 f., 675; 
 Wissowa, Relig. u. Kult. d. Rom. 357, 446. The people continued occasionally to 
 .create temporary magistracies and commissions. A lex Plaetoria for the appointment 
 of duoviri aedi dedicandae (CIL. vi. 3732) probably belongs to 151 ; cf. Mommsen, 
 Rom. Staatsr. ii. 621, n. 1. 
 
 8 Livy xl. 44. 1. Cf. in general on the leges annates, Fest. ep. 27; Cic. Phil. 
 v. 17. 47; Leg. iii. 3. 9; Ovid, Fast. v. 65 {.; Tac. Ann. xi. 22; Arnob. ii. 67. A 
 rogation of similar import was offered by a certain M. Pinarius Rusca (Cic. Orat. ii. 
 -65. 261), who is perhaps to be identified with a praetor of that name in 182; Livy 
 xl. 18. 2; Mommsen, Rom. Staatsr. i. 529, n. 1. 
 
 4 This interval is assigned to the lex Villia by none of the ancient authorities, but 
 is found to be the practice after its enactment; Mommsen, Rom. Staatsr. i. 526 f. 
 
 6 Cic. Phil. v. 17. 47. 6 Cf. Plut. Cat. Mai. 8. 
 
 7 Wex, in Rhein. Mas. iii (1845). 276-88; Nipperdey, in Abhdl. sacks. Gescllsch. 
 ji. Wiss. zu Leipzig, v. (1870). 1-88; Lange, Rom. Alt. i. 707; ii. 259-61, 655; 
 
 Mommsen, Rom. Staatsr. i. 529 f., 537; Herzog, Rom. Staatsverf. i. 386 f., 664 ff. ; 
 JMadvig, Rdm. Staat. i. 335 ff.; Kiibler, in Pauly-Wissowa, Real-Encycl. iv. 1 1 14. 
 
 8 They were not in force in 196 (Livy xxxiii. 42. 1) or in 194 (Livy xxxiv. 53. 1 f.; 
 
348 THE ROMAN ASSEMBLIES 
 
 prohibited the presiding magistrate from offering as candidates 
 for any extraordinary office himself, his colleagues, and his 
 relations by blood or marriage. This measure, too, was to 
 prevent the formation of governing cliques and dynasties. In 
 151, the year after the third consulship of M. Claudius Mar- 
 cellus, 1 to check the further aggrandizement of this man as well 
 as the rise of similar personalities, a law, supported by Cato, 2 
 absolutely forbade reelection to the consulship. 3 Cato's idea 
 may have been to expedite the advancement of novi homines ; 
 but so far from accomplishing this object, the measure con- 
 tributed to the further subordination of the individual to the 
 plutocratic machine. 4 It may well have been in the same par- 
 tisan spirit rather than in the interest of political morality that 
 P. Cornelius and M. Baebius Tamphilus, consuls in 181, carried 
 a law ex auctoritate senatus for the prosecution of bribery. It 
 disqualified for office for ten years any person found guilty of 
 influencing an election through bribery or other illegal means. 5 
 Probably through this measure the nobles aimed to curb the 
 greed of office in the more ambitious and unscrupulous of their 
 number; but it accomplished nothing, and was followed in 159 
 by another consular lex de ambitu of Cn. Cornelius Dolabella 
 and M. Fulvius Nobilior, which increased the penalty to death. 6 
 Practically the punishment was exile. This law had no more 
 effect than the earlier; and the conduct of the nobles both 
 before and after its enactment proves that they did not intend 
 
 xxxv. 9. 7). On the other hand Cicero's description (Dom. 20. 51; Leg. Agr. ii. 8. 
 21) of these laws as veteres should place them a hundred years or more before his 
 time. The two passages of Cicero are the only sources; cf. Lange, Rom. Alt. i. 919; 
 ii. 315 f., 655; Herzog, Rom. Staaisverf. i. 835. Mommsen, Rom. Staatsr. i. 501, 
 thinks they may have resulted from the Gracchan agitation. 
 
 1 CIL. i 2 . p. 146; Obseq. 18. 
 
 2 Orat. xxxvi. 
 
 3 Livy, ep. lvi (mentioned in connection with the year 1 34); Long, Rom. Rep. 
 i. 85-7. Long does not consider the date settled ; but see Mommsen, Rom. Staatsr. 
 i. 521; Greenidge, Hist, of Rome, i. 485; Kiibler, in Pauly-Wissowa, Real-Encycl. 
 iv. 1117. 
 
 4 Lange, Rom. Alt. i. 712; ii. 316, 655. 
 
 5 Livy xl. 19. 11; Schol. Bob. 361 ; Lange, Rom. Alt. i. 717; ii. 257,663; Ihne, 
 Hist, of Rome, iv. 92; Herzog, Rom. Staatsverf. i. 391 ; Hartmann, in Pauly-Wissowa, 
 Real-Encycl. i. 1801, Mommsen, Strafr. 867, u. z. 
 
 6 Polyb. vi. 56. 4; Livy, ep. xlvii; Lange, Rom. Alt. i. 717; ii. 312, 663; Ihne, 
 Hist, of Rome, iv. 92; Hartmann, ibid. 
 
COMITIAL LEGISLATION, 287-134 349 
 
 by it to open the consulship to the competition of novi 
 homines. 
 
 The limitation upon the judicial imperium of magistrates and 
 promagistrates by the three Porcian laws of appeal, which 
 belong to this period, has been considered in connection with 
 popular jurisdiction. 1 The last of these acts affected the ad- 
 ministration of the provinces and of military affairs, which 
 belonged originally to the magistrates and the senate. It was 
 only by degrees that the people interfered in this department. 
 The earliest known act of the kind was the consular lex de 
 sumptu provinciali of M. Porcius Cato, 195, for limiting the 
 expenses of provincials in the support and honor of the gov- 
 ernor. 2 To prevent conflicts in the provinces between the in- 
 coming and the retiring governor, Cato favored a regulation, 
 adopted probably in 177, whether a lex or a senatus consultum 
 has not been determined, to the effect that the imperium of the 
 outgoing functionary should cease on the arrival of the new. 3 
 It was still more unusual for the people to take part in the 
 organization of a new province ; but in 146 a lex Li via, proba- 
 bly tribunician, commissioned P. Scipio Aemilianus, assisted by 
 ten legati, to organize the province of Africa. 4 
 
 In foreign affairs the assemblies took the same part as in the 
 preceding period; the centuries continued to declare war and 
 the tribes to ratify peace. In 196 the tribunician lex Marcia 
 Atinia compelled the consuls against their will to conclude a 
 treaty with Macedon. 6 In 149 L. Scribonius Libo, tribune of 
 
 1 P. 250. — Of minor importance is the lex Rutilia, 169, which besides confirming 
 the earlier statute for the election of twenty-four military tribunes (p. 342) defined 
 the rights of the tribuni "rufuli" and "apopulo" respectively; Fest. 261. 29; ep. 
 260; cf. Livy vii. 5. 9; xxvii. 36. 14; Marquardt, Rom. Staatsv. ii. 365. — The roga- 
 tion of Ti. Sempronius, tr. pi. in 167, for granting the imperium to certain promagis- 
 trates for the day of their triumph has been considered above; p. 335, n. 2. 
 
 2 Lex Ant. de Termess, in CIL. I. 204. ii. 13-7; cf. Livy xxxii. 27. 3 f. (cutting 
 down such expenses in Sardinia); xxxiv. 4; cf. Lange, Rom. Alt. ii. 207, 673; Ihne, 
 Hist, of Rome, iv. 307. 
 
 8 Cato, Oral, lxix, in Gell. xx. 2. 1; cf. Livy xxxii. 8. 3; xli. 14. 11 ; Lange, Rom. 
 Alt. ii. 280, 673. 
 
 4 App. Lib. 135; Cic. Leg. Agr. ii. 19. 51. Appian and Cicero speak of a senatus 
 consultum only; but a lex Livia is vouched for by the Lex Agr. of 1 1 1 ; CIL. i. 200. 
 81; cf. Mommsen, Rom. Staatsr. ii. 643; Marquardt, Rom. Staatsv. i. 465. 
 
 6 Livy xxxiii. 25. 6. A lex Maevia, seemingly on Asiatic affairs, supported by 
 Cato but otherwise unknown, belongs perhaps to 189; Cato, Orat. lxxv. 
 
350 THE ROMAN ASSEMBLIES 
 
 the plebs, attempted in vain to secure the adoption of a rogation 
 for restoring liberty to the Lusitanians, whom the praetor 
 Servius Galba had treacherously enslaved. 1 No less character- 
 istic of the age is the consular lex of L. Furius and Ser. Atilius, 
 136, for surrendering C. Mancinus to the Numantines because 
 without the consent of the senate he had made an unfavorable 
 treaty with them. 2 The deterioration in the character of Roman 
 generalship and warfare is indicated by a statute of unknown 
 authorship, enacted after 180, 3 which forbade a triumph to a 
 commander who had not killed at least five thousand of the 
 enemy in a single battle. 4 The intention of the law, however, 
 which obviously was to prevent commanders from triumphing 
 for fictitious or insignificant victories, was circumvented by falsi- 
 fications regarding the number of enemies slain or by triumphs 
 on the Alban Mount. 5 
 
 Whereas before the second century b.c. no mention is made 
 of a comitial act for the founding of a colony, in the beginning 
 of the period now under consideration the function was exer- 
 cised by the people three or four times in quick succession. In 
 197 was enacted the tribunician statute of C. Atinius for plant- 
 ing five colonies — Vulturnum, Liternum, Puteoli, Salernum, 
 and Buxentum — on the coast of Italy, each to consist of three 
 hundred families, the execution of the measure to be in the 
 hands of triumviri, who were to hold their office three years. 6 
 Not long afterward a plebiscite of Q. Aelius Tubero provided 
 for founding two Latin colonies, one in Bruttium, the other at 
 Thurii, each by triumviri, who likewise held office three years. 
 The measure was authorized by a senatus consultum, 194. 7 In 
 the same year a tribunician law of M. Baebius Tamphilus pro- 
 vided for the establishment of three Roman colonies. 8 Mention 
 
 1 Livy, ep. xlix; new ep. I. 98-100; Cic. Brut. 23. 89; Alt. xii. 5. 3; Val. Max. 
 viii. 1. absol. 2. 
 
 2 Cic. Off. iii. 30. 109. 8 Livy xl. 38. 9; cf. 59. 1 (179 B.C.). 
 
 4 Val. Max. ii. 8. I; Oros. v. 4. 7; cf. Cic. Pis. 26.62; Livy xxxvii. 46. I f.; 
 xl. 38. 9; Gell. v. 6. 21; Lange, Rom. Alt. ii. 262, 676; Mommsen, Rom. Staatsr. 
 »■ 133- 6 P. 293. 
 
 6 Livy xxxii. 29. 3 f. These colonies were actually founded in 194; Livy xxxiv. 
 45. 1; Veil. i. 15. 3. 
 
 7 Livy xxxiv. 53. 1 f. The former was founded in 192; Livy xxxv. 40. 5. 
 
 8 Lex Agr. of 1 1 1, in CIL. i. 200. 43; Livy xxxiv. 45. 
 
COMITIAL LEGISLATION, 287-134 351 
 
 of colonial legislation by the people then ceases. Although the 
 phenomenon may be due in some cases to the sources, this ex- 
 planation does not generally hold good, especially as the colo- 
 nization of the years 189 1 and 184 2 is expressly attributed to 
 the senate, and because Velleius 3 credits that body with the 
 founding of all the colonies from the Gallic conflagration to his 
 own time. Probably before the Gracchi a senatorial decree was 
 issued in every case, and though the commissioners for conduct- 
 ing colonies were as a rule elected by the tribes after 296,* the 
 people were given but a taste of power within this administra- 
 tive field. 5 
 
 Early in the second century B.C. we find creditors rioting in 
 usury, unchecked by the various statutes which had been en- 
 acted against the evil. They discovered a way of circumvent- 
 ing the law by transferring their securities to citizens of an 
 allied state, who had a right to force the collection of debts 
 under the law of their own community. To put a stop to this 
 kind of fraud the senate decreed that after a stated date allies 
 who lent money to Roman citizens should register the transac- 
 tion, and that in suits for the collection of such money the debtor 
 should have the privilege of choosing under which law, whether 
 that of Rome or of the allied community, the suit against him 
 should be tried. As the registers provided for the purpose 
 •showed that an enormous amount of fraud was still being com- 
 mitted in circumvention of the law and of the senatorial act, 
 
 1 Livy xxxvii. 57. 7. 
 
 2 Livy xxxix. 55. 5. On the colonies of 181, see Livy xl. 29. 1 ; 34. 2; Veil. i. 15 ; 
 CIL. i. 538, in which nothing is said either of the senate or of the people. 
 
 8 I. 4«- «• * P. 307, 311. 
 
 6 It was in the capacity of administrator of public property that the senate con- 
 trolled this field. The only other instance of popular legislation in this period touch- 
 ing state economy was the plebiscite of M. Lucretius, 172 (Livy xlii. 19. I f.; cf. 
 xxvii. II. 8; Gran. Licin. xxviii), for renewing the tribunician law of 210, which 
 directed the censors to farm the vectigalia of Campania; p. 337 above. — In 169 a 
 tribunician rogation of P. Rutilius threatened to annul the censorial contracts (Livy 
 xliii. 1 6. 6) as a rebuke to the censors for their arbitrary management of the busi- 
 ness. When this object was secured, the bill was allowed to drop. It is true, as 
 Ihne, Hist, of Rome, iv. 24, n. 1, remarks, that no one questioned the right of the 
 people to cancel an administrative act of the censors; but it was quite another thing 
 to find a college of tribunes unanimously disposed to interfere. The significant fact 
 is that in all the time between the peace with Hannibal and the tribunate of Ti. 
 Gracchus no important financial act was passed by the comitia. 
 
352 THE ROMAN ASSEMBLIES 
 
 M. Sempronius, tribune of the plebs in 193, ex auctoritate 
 patrum proposed and carried a statute which ordered that 
 money lent between a Roman citizen and one of a Latin or 
 other allied state should be collected under Roman law. 1 This 
 is one of the earliest instances of unfairness introduced by 
 Rome into the private relations between her citizens and those 
 of her allies. 2 
 
 Family law underwent some modification. A plebiscite of 
 Q. Voconius Saxa, r6c., 3 provided that no citizen assessed at a 
 hundred thousand asses or more should will his property to a 
 woman.* Another article limited to a half of the estate tbe 
 amount which any legatee, male or female, could receive. 5 
 Dowries were regulated by a lex Maenia, which seems to 
 belong to 186. 6 
 
 In the bestowal of the citizenship the people were un- 
 hampered. Doubtless for some time after the Hortensian leg- 
 islation comitial acts for this purpose were commonly authorized 
 by senatus consulta; but in the year 188 we first hear the enun- 
 ciation of the principle that the people without the authority of 
 the senate had the power to bestow the ius suffragii on whom- 
 soever they pleased. 7 The principle was carried into immediate 
 effect by the tribunician statute of C. Valerius Tappo, which 
 without a senatus consultum conferred the right of suffrage on 
 the Formiani, Fundani, and Arpinates, who hitherto had been 
 cives sine suffragio. The determination of the tribe to which 
 new citizens should belong was also provided for by the legisla- 
 
 1 Livy xxxv. 7 ; cf. Lange. Horn. Alt. ii. 221, 660. 
 
 2 A rogatio Iunia concerning usury, known only through Cato's opposition to it 
 (Orat. vi), belongs to this period — perhaps to 195 (Livy xxriv. I. 4; xxxv. 41. 9 f.) 
 or to 191 (Livy xxxvi. 2. 6). s Livy, ep. xli. 
 
 4 Cic I'crr. TL i. 41. 104 ff.; Rep. in. 10. 17; Gaius ii. 274; Dio Cass. lvi. 10. 2; 
 Pseud. Ascon. 188; Gell. vi (vii). 13; xx. i. 23; p. 90 above. 
 
 5 Gaius ii. 226 and Poste's comment; Lange, Rom. Alt. ii. 298, 660; Greenidge, 
 Leg. Proced. 95, 128; Roby, Rom. Priv. Law, i. 345. It took the place of a lex 
 Furia of earlier date for limiting to one thousand asses the amount which a legatee 
 or, in view of death, a donee could accept; Gaius, ibid., Karlowa, Rom. Rechtsgcsck. 
 ii. 940 ft Voigt, Rom. Rcchtsgesch, i. 502, places the lex Furia between 203 and 170. 
 
 6 Cato, Orat. lxviii, lxxv; Lange, Rom. Alt. ii. 660 ; Voigt, Die lex Maenia de dote 
 ■vom Jahrc 568 der Stadt ; Rom. Rechtsgcsck. i. 789-801, attempts to determine 
 the contents as well as the date; cf. Amdts, in Zeitschr. f. Rechtsgcsck. vii (1868). 
 I_ 44- 7 Livy xxxvii. 36. 7 f.; cf. Cic Verr. II. i. 5. 13. 
 
COMITIAL LEGISLATION, 287-134 353 
 
 tive act of admission. 1 The citizenship granted in this period 
 continued occasionally to be limited. The Campanians, excluded 
 forever from the rights of the state in 210, 2 were in 188 placed 
 under the census by a senatus consultum of the preceding year 
 and were given intermarriage probably by a similar act. 3 In 
 early time, at least before 184, the custom arose of granting to 
 the founders of a colony the right to enroll as citizens a specified 
 number of aliens. The first recorded instance belongs to the 
 year mentioned, in which the poet Ennius received the citizen- 
 ship in accordance with such a law. 4 It was by the pretorian 
 comitia tributa that the priestesses of Ceres, who were Greeks 
 from Naples, Velia, or Sicily, were admitted to the citizenship. 5 
 Perhaps by the same assembly, at all events by an act of the 
 people, a slave who deserved well of the state was given his 
 liberty, which involved citizenship. 6 Such grants to single in- 
 dividuals by the people, however, must have been rare. 7 A 
 Roman taken captive in war, recovered all his rights simply by 
 returning home (postliminium). 8 But even when an entire com- 
 munity was brought into the state by a single vote, the wording 
 of the law indicates that the inhabitants received the honor as 
 individuals and not in mass. 9 It was permissible for indepen- 
 dent communities and individuals to reject the offer of the fran- 
 chise, 10 whereas subjects and partial citizens were compelled to 
 
 1 Ibid. § 9; p. 57 f., 334 above. 2 P. 340. 8 Livy xxxviii. 36. 5 f. 
 
 * Cic. Brut. 20. 79; cf. Momrasen, Rom. Staatsr. iii. 135, n. 1. 
 
 6 A pretorian law of Valerius Flaccus, 98, for the purpose is mentioned by Cic. 
 Bali. 24. 55; cf. CIL. vi. 2181 f.; Pais, Anc. Italy, 309. Naturally before the 
 establishment of the right of the people in this matter (p. 283, 304) the grant was 
 made by the consuls and the censors. 6 Cic. Bald. 9. 24. 
 
 7 Cf. the bestowal of citizenship upon the Carthaginian Muttines bya plebiscite ex 
 auctoritate patrum in 210; Livy xxvii. 5. 7; Varro, in Ascon. 13. 
 
 8 See the literature on the ius postliminii in Schiller, Rom. Staatsalt. 618. There 
 were certain cases of restoration of citizenship, however, which were thought to re- 
 quire a comitial vote; Cic. Bali. 11. 28. But on this question opinions differed; 
 cf. Mommsen, Rom. Staatsr. iii. 656, n. 1. 
 
 9 Cf. the lex Plautia Papiria, in Cic. Arch. 4. 7 : "Data est civitas Silvani lege et 
 Carbonis : Si qui foederatis civitatibus adscripti fuissent, si turn, cum lex ferebatur, 
 in Italia domicilium habuissent et si sexaginta diebus apud praetorem essent pro- 
 fessi"; aho Bali. 8. 19 (singillatim) ; CIL.il. 159; iii. 5232 (viritim); Mommsen, 
 Rom. Staatsr. iii. 132. 
 
 10 Gell. xvi. 13. 6 ; Cic. Bali. 8. 21. Heraclea and Naples preferred their freedom ; 
 Cic. ibid. ; Fam. xiii. 30. 1. 
 2 A 
 
354 THE ROMAN ASSEMBLIES 
 
 accept it. 1 From the facts here stated it will immediately 
 appear that after the people had acquired an unconditioned 
 right to extend the Roman franchise, they made little use of the 
 opportunity. The senate could well afford to concede to them 
 a power which they cherished a growing disinclination to use. 
 The expansion of the empire had at length so enhanced the 
 value of citizenship that the masses were unwilling except on 
 the rarest occasions to share its advantages with others. 2 Any 
 attempt, therefore, on the part of aliens to usurp the rights of 
 the city was resented. In 187 we find the senate appointing 
 the praetor Q. Terentius Culleo extraordinary commissioner 
 for determining by investigation who from the Latin towns had 
 recently usurped the citizenship, and for expelling from Rome 
 those found guilty of the offence. 3 Soon afterward the people 
 extended their power over such cases ; in 177 a second expulsion 
 of the Latins was brought about by a consular law of C. 
 Claudius Pulcher.* 
 
 The same spirit prompted the citizens to limit the political 
 rights of freedmen. There can be no doubt that early Rome 
 was as liberal in the treatment of this class as of aliens. From 
 earliest times they had a right to acquire land; and such pro- 
 prietors were undoubtedly enrolled in the tribes in which their 
 estates were situated. 6 From the beginning, however, custom 
 deprived them of the ius honorum 6 and of conubium. The 
 former they acquired along with the other plebeians, although 
 they were less readily admitted to the actual enjoyment of it; 7 
 the latter they continued to lack. 8 They were exempt, too, 
 
 1 Mommsen, Rom. Staatsr. iii. 133. 
 
 2 This spirit expressed itself in the lex Minicia of unknown date, though prob- 
 ably anterior to the social war. It ordered that children born of a union between a 
 Roman and a person of a nationality with which there was no conubium should fol- 
 low the condition of the alien parent ; Gaius i. 78 f.; Ulp. v. 8; Karlowa, Rom. 
 Rechtsgesch. ii. 182. 
 
 8 Livy xxxix. 3. 5 f. 
 
 L Livy xli. 9. 9-1 1; Neumann, Gesch. Roms, i. 21, 115; Herzog, Rom. Staatsverf. 
 i. 964, n. 1; Meyer, Gesch. d. Gracch. 92, n. I. 
 
 6 Mommsen, Rom. Staatsr. iii. 435 f.; cf. however Lange, Rom. Alt. ii. 27; 
 Herzog, Rom. Staatsverf. i. 993. 
 
 6 Lange, Rom. Alt. i. 705; ii. 27. 7 Livy ix. 46; Plut. Mar. 5. 
 
 8 Livy xxxix. 19. 5 f. ; Cic. Sest. 52. 1 10; PAH. ii. 2. 3. A law of Augustus, 18 B.C., 
 permitted all excepting senators to marry freedwomen; Dio Cass. liv. 16. 2; 
 
COMITIAL LEGISLATION, 287-134 355 
 
 from ordinary military service. 1 In time their condition became 
 worse. C. Flaminius as censor in 220, in the interest of the rural 
 plebs, 2 began arbitrarily to assign all the libertini, whether they 
 had lands or not, to the four city tribes, 8 doubtless at the same 
 time to the supernumerary centuries of the comitia centuriata.* 
 But the sons of freedmen, themselves originally libertini, 5 came 
 in time to be looked upon as ingenui, with the same legal rights 
 as the old citizens. This change seems to have been effected 
 by the plebiscite of Q. Terentius Culleo, 189, for compelling 
 the censors to admit to the senate the sons of free parents — 
 undoubtedly those sons of libertini who were born after the 
 emancipation of the father. 6 The law must have involved the 
 principle of treating such persons as citizens optimo iure, and 
 have therefore required their enrolment in the country tribes, 
 provided they owned land. As the acquisition of full rights 
 came only with the death of the father, which made the son sui 
 iuris, the application of the principle must have required the 
 enrolment of the fathers along with the sons in the rural tribes ; 
 in other words, it recognized as citizens optimo iure those 
 libertini who had children, 7 on the basis of the existing custom 
 of enlisting such persons in military service at crises. 8 The 
 political connections of the author of this statute leads us to 
 interpret it as a measure of the oligarchs for strengthening 
 their position by the votes of their dependents. 9 
 
 Ivi. 7. 2. Conubium bad not been impossible, but had been considered disgraceful 
 both by society and by the law. 
 
 1 Cf. Livy x. 21. 4; Lange, Rom. Alt. i. 515; ii. 27; p. 60 above. 
 
 2 P-334- 
 
 * Livy, ep. xx; cf. Mommsen, Rom. Staatsr. iii. 436, n. 3. The statement of the 
 epitomator is that by the censors " Libertini in quattuor tribus redacti sunt, cum 
 antea dispersi per omnes fuissent, Esquilinam," etc. It refers either to the censor- 
 ship of Flaminius (Herzog, Rom. Staatsverf. i. 995) or far less probably to the one 
 immediately preceding. On the city tribes, see p. 64. 
 
 4 P. 205 f. 
 
 6 Suet. Claud. 24; Livy vi. 46. 6; Pliny, N. H. xxxiii. 2. 32; cf. Mommsen, Rom. 
 Staatsr. iii. 422; Herzog, ibid. i. 977. 6 Plut. Flamin. 18. 
 
 7 Lange, Rom. Alt. ii. 234; Mommsen, Rom. Staatsr. iii. 436 f. This inter- 
 pretation seems necessary notwithstanding Herzog, Rom. Staatsverf. i. 884. 
 
 8 As in 217; Livy xxii. 11. 8. 
 
 * In general, see Ihne, Hist, of Rome, iv. 26-38; Mommsen, Rom. Staatsr. iii. 
 420 ff.; Herzog, Rom. Staatsverf. i. 976 ff., 992 ff. ; Lange, Rom. Alt., see index, s. 
 Libertini. On the censorial distribution of the libertini in 179, see p. 85, n. 3. 
 
356 THE ROMAN ASSEMBLIES 
 
 The increasing wealth and luxury of the age naturally gave 
 rise to sumptuary legislation ; and the nobility could allow the 
 comitia to revel in this field, devoid as it was of political signifi- 
 cance. The first act, however, was to undo the Oppian law of 
 215 1 through the plebiscite of M. Valerius, 195, enacted prob- 
 ably without a senatus consultum. 2 It was the senate which 
 initiated the tribunician statute of C. Orchius, 181, for limiting 
 the number of guests at banquets. 3 Cato opposed the enact- 
 ment of this measure on the ground that it was too easy, 4 but 
 twenty years afterward he protected it from abolition. 5 It was 
 reinforced in 161 by the lex cibaria of the consul C. Fannius 
 Strabo, which prescribed that ordinary meals should cost no 
 more than ten asses ; on ten days of the month meals should 
 cost no more than thirty ; and on the days of the ludi plebeii, 
 Saturnalia, and certain other great festivals, no more than a 
 hundred. 6 It also forbade the use of fowls excepting one un- 
 fattened hen. 7 The lex Didia cibaria, pretorian or tribunician, 
 143, extended the application of the Fannian statute to all Italy, 
 and rendered liable to punishment not only the host who vio- 
 lated the law but also the guests at such illegal repasts. 8 
 
 Closely akin to sumptuary laws are those for the regulation 
 of theatres and games. A plebiscite of Cn. Aufidius of un- 
 known date, possibly 170, 9 permitted the importation of wild 
 beasts from Africa for use in the circensian games. The statute 
 repealed a senatus consultum which had prohibited such impor- 
 tation. 10 The arrangement of the social classes in the theatre 
 and at the games was determined partly by law. It was the 
 censors of 194, persuaded by Scipio Africanus the Elder, 11 who 
 
 1 P- 338. 
 
 2 Lange, Horn. All. ii. 174, 211, 670; Ferrero, Rome, i. 23. 
 
 8 Macrob. Sat. iii. 17. 2; Diod. xxxvii. 3. 5; Ferrero, Rome, i. 23; Herzog, Rom. 
 Staatsverf. i. 425. 
 
 4 Macrob. ibid. § 3; Schol. Bob. 310; Fest. 242. 12. 
 6 Fest. 201. 31; Cato, Oral, xxvii. 
 
 6 Gell. ii. 24. 3; Macrob. Sat. iii. 17. 3-5; Athen. vi. 274 C. 
 
 7 Pliny, N. H. x. 50. 139. 8 Macrob. Sat. iii. 17. 6. 
 
 9 The author may, as Lange, Rom. Alt. ii. 311, 672, assumes, be identical with 
 the Cn. Aufidius who was tribune in that year; Livy xliii. 8. 2. Klebs, in Pauly- 
 Wissowa, Real-Encycl. ii. 2288 f., regards the identity as no more than possible. 
 
 10 Pliny, N. H. viii. 17. 64. 
 
 11 Cic. Cornel, i. 25 (Frag. A. vii) ; Ascon. 69. 
 
COMITIAL LEGISLATION, 287-134 357 
 
 reserved the front seats for senators. 1 The assignment of four- 
 teen rows to the knights next to those of the senators was 
 effected by a plebiscite, possibly of 146, the author of which is 
 unknown. 2 
 
 For a long time the laws of the Twelve Tables administered 
 by the magistrates, more rarely by a special court created some- 
 times by the senate but oftener and in better right during this 
 period by the people, 3 sufficed for controlling crime. But as 
 offences multiplied in consequence of the increasing complexity 
 of life, the people were called upon more and more frequently 
 to legislate on the subject. 4 One of the earliest may have been 
 the lex Fabia de plagiariis, 6 against the usurpation of owner- 
 ship over a Roman citizen without his consent or over his slave 
 without the consent of the owner. 6 The date of its origin is 
 unknown ; but if Plautus 7 refers to it, as Voigt asserts, 8 it must 
 have been in force before 197. For this and other reasons 
 Voigt assigns it to Q. Fabius Verrucossus, consul in 209. 9 
 Lange prefers Q. Fabius Labeo, consul in 183, 10 whereas 
 Mommsen places it after the Social war. u A lex Gabinia 
 threatened with scourging and death any one who induced the 
 people to gather in secret meetings. It seems to belong to the 
 time of the Bacchanalian trouble, 186, 12 and to have been designed 
 against religious associations of the kind ; nevertheless the 
 nobility found in it a means of repressing popular agitation. 
 
 On the authority of a mutilated passage in the newly found 
 epitome of Livy an attempt has been made to assign to 149 
 the law of M. Scantinius (or Scatinius), probably tribune of the 
 plebs, for imposing a fine of ten thousand sesterces on any one 
 convicted of violating a man of free birth. 13 
 
 1 Livy xxxiv. 44. 4. 
 
 2 Mention of this law is made in connection only with the Roscian statute of 67, 
 which is spoken of as a restoration of an earlier act; p. 428 f. below. 
 
 * P. 253 ff. * Cic. Off. ii. 31. 75. 
 
 6 Cic. Rab. Pcrd. 3. 8. • Dig. xlviii. 15. 
 
 7 Cure. 621 f.; Merc. 664 f. 
 
 8 In Verhdl. d. sacks. Gcstllsch. d. Wiss. xxxvii (1885). 320. 
 
 » Ibid. 327. 10 Rom. Alt. ii. 663; cf. CIL. P. p. 144. 
 
 11 Rom. Strafr. 780, n. 4. 
 
 12 Declam. in Cat. 19. Lange, Rom. Alt. ii. 664 f., prefers to assign it to the 
 tribune of 139; Mommsen, Rom. Strafr. 563, u. 4, doubts its existence. 
 
 18 Cic. Fam.vm. 12. 3; 14. 4; Suet. Dom. 8. 3 (Scantinius; Ihm); Juv. ii. 44; 
 
358 THE ROMAN ASSEMBLIES 
 
 The statute which established the first standing court — quaes- 
 tio perpetua — was the lex Calpurnia de repetundis of the tribune 
 L. Calpurnius Piso Frugi, 149. 1 His motive was undoubtedly a 
 sincere desire to protect Italy 2 and the provinces from official 
 rapacity. The court was made up of a considerable number of 
 jurors drawn from the senate and presided over by a praetor, 
 who had hitherto exercised civil jurisdiction only. In fact a 
 trial for extortion was at first thought of as a civil suit for the 
 recovery of wealth illegally taken — a conception which deter- 
 mined the organization of the Calpurnian quaestio. But from 
 time to time new standing courts were instituted each with cog- 
 nizance of a specified class of crimes, till before the end of the 
 republic they had taken upon themselves practically all criminal 
 jurisdiction, retaining little trace of their civil origin. 3 Between 
 149 and 141, for instance, was established a standing quaestio 
 for the trial of cases of murder.* 
 
 It was in keeping with the oligarchic tendency of the age 
 that a consular law of M'. Acilius Glabrio, 191, gave the pon- 
 tiffs the function of determining which years should be inter- 
 calary and of how many days such years should consist. Thus 
 these functionaries secured the means of bringing the solar and 
 civil years into accord ; but they used their new power mostly 
 in the interests of their party, with the result that the confusion 
 in the calendar increased rather than lessened. 6 The nobles 
 made their greatest gain in the control of legislation and of 
 
 Quint. Inst. iv. 2. 69. Voigt, in Verhdl. d. sacks. Gesellsck. d. Wiss. xlii (1890). 
 273, assigns it to 226 or 225. Lange, Rom. Alt. ii. 667 f., places it between 227 and 
 50. The date 149 rests upon W. W. Fowler's restoration of the new epitome, 1 15 f. : 
 "M. Sca(n)ti(ni)us ... am tulit (de) in stupro deprehensi(s)." Quite another 
 matter, however, is referred to in this passage, if Kornemann's reading is correct : 
 "Sca(n)tius (qui repuls)am tulit in stupro deprehens(us se occidit)." The date 
 of the law, therefore, still remains in doubt. 
 
 1 Schol. Bob. 233; Cic. Brut. 27. 106; Off. ii. 21. 75; Verr. iii. 84. 195; iv. 25. 
 56; Val. Max. vi. 9. 10; Tac. Ann. xv. 20; Lex Acil. in CIL. i. 198. 23, 74, 81; 
 Mommsen, ibid. p. 54 f. ; Strafr. 708; Lange, Rom. Alt. ii. 321 f., 664; Greenidge, 
 Leg. Proced. 419. 
 
 2 In general the leges repetundarum were for the protection of Italy as well as of 
 the provinces; cf. p. 376, 377, 442. 
 
 3 Lengle, Sull. Verf. 17; Greenidge, Leg. Proced. 415 f. 
 * P. 25s, n. 1 (3). 
 
 6 Macrob. Sat. i. 13. 21; Censor, xx. 6. f.; Livy xliii. n. 3; Lange, Rom. Alt. i. 
 3535 «• 223, 676; Mommsen, Rom. Chron. 40 ff.; Matzat, Rom. Chron. i. 46. 
 
COMITIAL LEGISLATION, 287-134 359 
 
 elections about the middle of the century through the statutes 
 of Aelius and Fufius, probably tribunes of the plebs. By grant- 
 ing the patrician magistrates the obnuntiatio against the tribunes, 
 or perhaps by confirming the former in a usurped power of the 
 kind, it enabled -the nobles to exercise a practical veto on tribu- 
 nician legislation, and may for that reason be looked upon as the 
 firmest support of the plutocracy. 1 An article of the statute for- 
 bade the bringing of a rogation before the people in the interval 
 between the announcement and the holding of elective co- 
 mitia. 2 
 
 Toward the close of the period a democratic movement pre- 
 liminary to the revolution began with the enactment of two im- 
 portant ballot laws. The first was the plebiscite of Q. Gabinius, 
 139, whom the optimates took pleasure in representing as ignoble 
 and mean. 3 It introduced the ballot in elections with a view to 
 freeing the voter from the influence of the nobility ; for many 
 of the poor were at this time falling into economic, and hence 
 political, dependence on the rich.* The other was the plebiscite 
 of L. Cassius Longinus Ravilla, 137, for extending the use of 
 the ballot to all trials before the people with the exception of 
 perduellio. 6 Cases coming under the law were those which in- 
 volved fines imposed by the tribes under aedilician or tribunician 
 presidency. Probably in the opinion of the author, a conscientious 
 noble, 6 cases of perduellio were too rare to need the change or 
 too solemn to admit of a disturbance of traditional usage. These 
 measures had little immediate effect, for the nobles were as 
 clever as the commons at exploiting the secret ballot for partisan 
 objects 7 ; yet the principle, when carried to completion by the 
 supplementary laws on the subject in the years immediately 
 
 J P. 116; cf. Ihne, Hist, of Rome, iv. 308 f. 
 
 s Schol. Bob. 319; cf. Cic. Sest. 26. 56: "De tempore legum rogandorum." 
 
 8 Livy, new ep. liv. 193 f. : "A. Gabinius verna(e . . . rogationem tulit) suffra- 
 giura per ta(bellam ferri)," indicates servile descent. 
 
 4 Cic. Leg. iii. 16. 35; cf. 15. 34; Amic. 12. 41; Leg. Agr. ii. 2. 4. 
 
 6 Cic. Leg. iii. 16. 35 f.; Brut. 25. 97; 27. 106; Sest. 48. 103; Amic. 12. 41; 
 Ascon. 78; Pseud. Ascon. 141 f.; Schol. Bob. 303; Long, Rom. Rep. i. 105-10; 
 Lange, Rom. Alt. ii. 658; Herzog, Rom. Staatsverf. i. 422; Ihne, Hist, of Rome, iv. 
 
 34° f- 
 
 6 Cic. Rose. Am. 30. 84; Ascon. 46; Val. Max. iii. 7. 9; cf. Cic. Brut. 25. 97; 
 Veil. ii. 10. I ; Val. Max. viii. I. damn. 7. 
 
 7 Cf. Lange, Rom. Alt. ii. 344; Ihne, Hist, of Rome, iv. 94. 
 
360 THE ROMAN ASSEMBLIES 
 
 following, contributed greatly to the success of the revolution. 1 
 Not without significance for the general trend of affairs is the 
 circumstance that in these latter years of the completed plutoc- 
 racy two dispensations were granted P. Scipio Aemilianus from 
 laws which had been designed to secure it agajnst the rise of 
 /great personalities. In 148 when he offered^ himself for the 
 aedileship, being still too young for the consulship, 2 the people 
 insisted on electing him to the latter office. /' When the consuls 
 showed them the law they became more importunate and urged 
 all the more, exclaiming that by the law£ handed down from 
 Tullius and Romulus the people were judges of the elections, 
 and of the laws pertaining thereto they could set aside or con- 
 firm whichever they pleased. 3 Finally one of the tribunes of 
 the people declared that he would take from the consuls the 
 power of holding an election unless they yielded to the people in 
 this matter. Then the senate allowed the tribunes to repeal this 
 law and after one year they reenacted it."\ 4 From this event it 
 can be seen that when the tribunes and people were unitedly 
 determined upon a measure, they were irresistible. It is evi- 
 dent, too, that in popular theory no laws could prevent the 
 citizens from having the magistrates whom they chose to elect. 
 Again in 135 a plebiscite, authorized by a senatus consultum, 
 granted more speedily on this ocasion though doubtless with as 
 great regret, exempted him from the law which absolutely for- 
 bade reelection to the consulship. 5 It was equally ominous that 
 in the preceding year the proconsulship of M. Aemilius Lepidus 
 was abrogated, probably by an act of the comitia. 6 
 
 Another premonition of the revolution was the renewal of 
 agrarian agitation, with which in a varying degree some of the 
 more enlightened nobles sympathized. It began slowly to dawn 
 upon them that the economic ruin of the peasant class was en- 
 dangering the state — a feeling which found expression in the 
 agrarian rogation of C. Laelius, praetor in 145J The measure 
 
 1 See especially Cic. Leg. Hi. 15. 34: "Quis autem non sen tit omnem auctoritatem 
 optimatium tabellariam legem abstulisse?" 
 2 P. 347- 8 P. 184. 
 
 *App. Lib. 112 (White's rendering); cf. Livy, ep. 1. 
 
 6 Livy, ep. lvi; App. Iter. 84. » App. Iber. 83; cf. p. 188, ■■. 2, 342, 367. 
 
 7 Cic. Amic. 25. 96; Lange, Rom. Alt. ii. 335, 688. 
 
COMIJIAL LEGISLATION, 287-134 361 
 
 must have been similar to the Licinian-Sextian law as it threatened 
 the interests of the rich. 1 When he saw that their opposition 
 would be such as to disturb the public peace, he dropped the 
 proposal. If he was in truth called Sapiens because of this 
 speedy retreat, the epithet was too easily earned. Reform, 
 while there was yet time, was blocked as much by the cowardice 
 of the well-minded as by the enormous selfishness of the major- 
 ity of nobles. It was in this time of extraordinary imperial 
 prosperity that, in the opinion of Polybius, the constitution was 
 successfully put to its severest test. "When these external 
 alarms are past, and the people are enjoying their good fortune 
 and the fruits of their victories, and, as usually happens, grow- 
 ing corrupted by flattery and sloth, show a tendency to violence 
 and arrogance — it is in these circumstances more than ever 
 that the constitution is seen to possess within itself the power of 
 correcting abuses. For when any one of the three classes 
 becomes puffed up, and manifests an inclination to be conten- 
 tious and unduly encroaching, the mutual interdependence of 
 all the three, and the possibility of the pretensions of any one's 
 being curbed and thwarted by the others, must plainly check 
 this tendency ; and so the proper equilibrium is maintained by 
 the impulsiveness of the one part's being checked by its fear of 
 the other." 2 These words, which we may suppose to have been 
 written after the tribunate of Ti. Gracchus, 3 accurately describe 
 the interplay of constitutional forces in the period of the com- 
 pleted plutocracy and of the incipient revolution. Controlled 
 in some instances by self-satisfaction and the spirit of repose 
 and in others by greed and arrogance, the dominant institutions 
 of government tended in the one case to sluggishness and decay, 
 in the other to violence ; whereas the harmony of the constitu- 
 tion, or its equivalent the soundness of Roman character, like a 
 central sun, held the various institutions in the main to their 
 respective orbits, compelling each to attend to its appropriate 
 
 I Hut. Ti. Gracch. 8. 
 
 II Polyb. vi. 18. 5-8 (Shuckburgh's rendering). 
 
 8 The main part of his history was composed before the third war with Carthage; 
 Christ, W., Gesch. d.griech. Litteraiur (4th ed. 1905), 585; Cuntz, O., Polybius und 
 sein Werk (1902), 82. It is understood, however, that certain parts were inserted 
 after the beginning of the revolutionary period. 
 
362 THE ROMAN ASSEMBLIES 
 
 function. No retrospect of the Gracchan troubles induced the 
 great historian to revise the view here expressed; for with his 
 boundless faith in Rome he could never doubt that her constitu- 
 tion contained the cure of every evil which new conditions 
 should breed within the state. 1 
 
 Schulze, C. F., Volksversammlungen der Romer, 100-10 ; Peter, C, Epo- 
 chen der Verfassungsgesch. der rbm. Republik, 118-140 (on the general char- 
 acter of the period) ; Ihne, W., History of Rome, bk. vi ; Long, G., Decline 
 of the Roman Republic, I. chs. v, vii, viii ; Mommsen, Th., History of Rome, 
 bk. Ill, ch. xi ; Rom. Staatsrecht, see index s. the various laws ; Lange, L., 
 Rom. Altertiimer, ii. 116-351, and see index s. the various laws ; De legibus 
 Aelia et Fufia commentatio, in Kleine Schriften, i. 274-341 ; Neumann, C, 
 Geschichte Roms, I. ch. i; Nitzsch, K. W., Die Gracchen und ihre nachsten 
 Vorganger, bks. i, ii ; Willems, Droit public Romain, 178 ff. ; Mispoulet, J. B., 
 Les institutions politiques des Romains, I. 220 if. ; Hallays, A., Les cornices a 
 Rome, 67 f. ; Maranca, // tribunato della plebe dalla lex Hortensia alia lex 
 Cornelia; Arndts, Die lex Maenia de dote vom Jahr der Stadt Rom 568, in 
 Zeitschr. f. Rechtsgesch. vii (1868). 1-44 ; Voigt, M., Die lex Maenia de dote 
 vom Jahre j68 der Stadt ; Die lex Fabia de plagiariis, in Verhdl. d. sacks. 
 Gesellsch. d. Wiss. xxxvii (1885). 319-345; Savigny, F. C. von, Lex Cincia 
 de donis et muneribus, in Vermischte Schriften, i. 3 1 5-85 ; Ueber die lex Voconia, 
 ibid. i. 407-46 ; Schutz der Minderjdhrigen und die lex Plaetoria, ibid. ii. 
 321-95 ; Garofalo, F. P., Lex Cincia de donis et muneribus, in Bull. deW ist. 
 di diritt. Rom. xv (1903). 310-2 ; Kriiger, P. and Mommsen, Th., Anecdoton 
 Livianum, in Hermes, iv (1870). 371-6; Babelon, E., Monnaies de la rtpu- 
 blique Rom. i. 37-69 ; Hill, G. F., Greek and Roman Coins, 44 ff. ; Haeberlin, 
 E. J., Del piii antico sistema monetario presso i Romani, V, in Rivista It alia na 
 numismatica e scienze affini, xix (1906). 611-46; Cunz, O., Polybius und 
 sein Werk ; Pais, E., L 1 elezione del pontefi.ee massimo Romano per mezzo delle 
 xvn tribit; articles in Pauly-Wissowa, Real-Encycl. i. 576-80: L. Aimilius 
 Paullus (Klebs) ; ii. 2728 f. : Baebius (idem) ; iii. 2738-55 : M. Claudius 
 Marcellus (Munzer) ; iv. 1112-38: Consul (Kiibler). Grenfell, B. P., and 
 Hunt, A. S., Oxyrhynchus Papyri, iv (1904). 90-116 for the newly discovered 
 epitome of Livy, including text and commentary. The lost books xlviii-lv, 
 covering the years 150-137, are represented. See also Kornemann, E., Die 
 neue Livius-Epitome aus Oxyrhynchus, in Beitr. zur alt. Gesch. Beiheft ii 
 (1904) ; Sanders, H. A., The Oxyrhynchus Epitome of Livy, in Trans, of the 
 Am. Philol. Assoc, xxxvi (1905). 5-31, and a brief notice by Liebenam, W., 
 in Jahresb. d. Geschichtswiss. xxvii (1904). 124 f. 
 
 J It is true that the Gracchan trouble opened his eyes to some of the defects in 
 the constitution ; but the aristocratic recovery after the tribunate of Tiberius (and 
 perhaps after that of Gaius) confirmed his belief in the fundamental soundness and 
 in the recuperative power of the state. 
 
CHAPTER XVI 
 
 COMITIAL LEGISLATION 
 
 From the Gracchi to Sulla 
 
 134-82 
 
 I. The Gracchi 
 134-122 
 
 The work of agrarian reform, after the feeble attempt of 
 Laelius, 1 was taken up in a more determined spirit by Ti. Sem- 
 pronius Gracchus, who early in his tribunate, upon which he 
 entered December 10, 134, promulgated his famous lex agraria. 
 It was a repetition, with some modifications and additions, of 
 those articles of the Licinian-Sextian statute which related to 
 the same subject. The last instance of the prosecution of tres- 
 passers against the earlier law given in our imperfect records 
 belongs to 193, 2 and it must still have been in force in 167 when 
 Cato 3 recited its terms in his "Oration in behalf of the Rho- 
 dians." Probably about the time of Flaminius the agrarian pro- 
 visions of this statute were renewed with the addition of articles, 
 (a) providing that a specified proportion of free laborers should 
 be employed on public lands held in possession, (b) requiring 
 holders to take an oath to obey the law, (c) increasing the 
 penalty for violations.* 
 
 Tiberius had matured his plan before entering office. Assisted 
 
 1 P. 360 f. 
 
 2 Livy xxxv. 10. 12 : " Multos pecuarios damnarunt." In Livy xxxiv. 4. 9 Cato 
 while speaking in defence of the Oppian law, in 195, is represented as mentioning 
 the article which established the limit of five hundred iugera. 
 
 3 Orig. v. 5. 
 
 4 These are provisions of an agrarian law passed before the tribunate of Ti. 
 Gracchus (App. B. C. i. 8. 33 f.) but not expressly referred to Licinius and Sextius 
 in any ancient source. The first article seems to assume a greater development of 
 slavery than could be true of the year 367, and the second would belong more nat- 
 urally to a repetition than to the original enactment; p. 296, n. 4, 334, n. 1. 
 
 3 6 3 
 
364 THE ROMAN ASSEMBLIES 
 
 by experienced friends, among whom were P. Licinius Crassus, 
 P. Mucius Scaevola, the most eminent jurist of his generation, 
 consul designate for 133, and Appius Claudius Pulcher, his 
 father-in-law, he expressed the articles of his rogation in the 
 most careful terms and with especial regard for vested interests. 1 
 Its chief provisions were — 
 
 (1) No one shall hold more than five hundred iugera of the 
 public land, excepting that in case the holder has sons he may- 
 occupy an additional two hundred and fifty iugera for each of 
 two sons. 2 
 
 (2) The occupier shall receive compensation for improve- 
 ments on the lands which the law compels him to surrender. 3 
 
 (3) The five hundred to one thousand iugera retained by 
 the occupier shall be granted to him by the state in perpetuity 
 and free from all dues. 4 
 
 (4) The lands thus accruing to the state shall be divided 
 among the needy 6 in lots, the maximal size of which seems to 
 have been set at thirty iugera, 6 to be held not as private 
 property but as permanent, heritable leaseholds inalienable and 
 subject to a specified rent. 7 The Latins and Italians are to be 
 included among the beneficiaries of this provision. 8 
 
 1 Plut. Ti. Gracch. 9. 
 
 - App. B. C. i. 9. 37 and 11. 46 states that an additional two hundred and fifty 
 iugera were allowed for each son, and Livy, ep. lviii, sets the maximum at a thousand 
 iugera. Combining the two sources, we reach the probable result given in the text ; 
 cf. also (Aurel. Vict.) Vir. III. 64. 3; Siculus Flacc. p. 136. 10 (CC is a corruption 
 of 00). See Herzog, Rom. Staatsverf. i. 450, n. 3; Greenidge, Hist, of Rome, i. 
 114; Mommsen, in CIL. i. p. 87. 
 
 8 Plut. Ti. Gracch. 9; cf. Greenidge, ibid. 
 
 4 App. B. C. i. II. 46. It is not stated that these lots should become private 
 property. Appian mentions this article as the only compensation for improvements 
 on the lands surrendered. The fact that article 2 was withdrawn from the bill 
 before it became a law may account for its omission from this source. 
 
 6 Plut. Ti. Gracch. 9; App. B. C.i. 11. 
 
 6 CIL. i. 200. 14: " Sei quis . . . agri iugra non amplius xxx possidebit 
 habebitve." In all probability this specification came originally from the Sem- 
 pronian law. 
 
 'Mommsen, in CIL. i. p. 88; Plut. Ti. Gracch. 9; App. B. C. i. 27. 121; 
 Weber, Rom. Agrargesch. 151. 
 
 8 This is a necessary deduction from a speech of Tiberius quoted by App. B. C. 
 i. 9. 35; cf. 11. 43; Plut. Ti. Gracch. 9. The Lex Agr. of III {CIL. i. 200. 21) 
 refers to assignments made by C. Gracchus to Latins and allies as compensation for 
 public lands surrendered by them to the government for colonial purposes; cf. § 31. 
 
COMITIAL LEGISLATION, 134-82 365 
 
 (5) Certain specified parts of the public domain shall not be 
 subject to assignment — the same parts which are afterward 
 reserved from assignment by the agrarian law of 1 1 1 : 1 
 
 a. Land granted by law or by a senatorial decree to a 
 colony, a municipium, or a Latin town, with the exception of 
 any tracts of such land which this law may expressly order to 
 be sold, assigned, or restored. 2 Public domain granted by a 
 lex or a senatus consultum can be withdrawn by the same, but 
 the modification of a treaty requires the consent of both 
 parties. 8 
 
 b. The trientabula — portions of public land granted by the 
 government for a quit rent to its creditors as security for any 
 part of a loan.* 
 
 c. The ager compascuus — public land on which a specified 
 group of neighbors have a right to pasture free of charge ten 
 large domestic animals — cattle, horses, mules, and asses — and 
 a fixed number of small animals, unknown to us on account of a 
 lacuna in the inscription but most probably fifty. 6 As the unit 
 was doubtless the individual, much of the land of this descrip- 
 tion must have remained undivided. 6 
 
 d. Public roads. 7 
 
 e. Other portions of the public domain specifically desig- 
 
 Doubtless a similar provision was included in the statute of Tiberius. Although 
 viritim assignments had hitherto benefited citizens only, Latins and Italians had been 
 admitted to Latin colonies founded by Rome; Meyer, Gesch. d. Gracch. 91. 
 
 1 Cf. Lex Agr. in CIL. i. 200. 6 : " Extra eum agrum, qui ager ex lege plebive 
 scito, quod C. Sempronius Ti. f. tr(ibunus) pl(ebei) rog(avit), exceptum cavitum- 
 que est nei divideretur." The exceptions numbered from a to g in the text above are 
 taken from the agrarian law of III. As these exceptions were made in the agra- 
 rian law of C. Gracchus, it is here assumed that they were made previously by 
 Tiberius. 
 
 2 Lex Agr. in CIL. i. 200. 31 f.; cf. Cic. Leg. Agr. i. 4. 10; ii. 22. 58 (land held 
 similarly in Africa). 8 Cf. Mommsen, in CIL. i. p. 90. 
 
 4 In the earliest arrangement of the kind the part was one third, as the name 
 indicates; Livy xxxi. 13. 9; CIL. i. 200. 31 f.; cf. Greenidge, Hist, of Home, i. 113; 
 Weber, Rom. Agrargesch. 149-51. The word is derived from trientare, as stabulum 
 from stare ; Mommsen, in CIL. i. p. 90. 
 
 6 CIL. i. 200. 14; cf. 25 f. See Mommsen's comment, p. 91; Frontin. Contr. p. 
 15; Hygin. Cond. Agr. p. 116.23; Lim. Const, ■p. 201. 12; Siculus Flacc. p. 157; 
 Weber, Horn. Agrargesch. 1 20 f. 
 
 6 Voigt, in Abhdl. sacks. Gesellsch. d. Wiss. x (1888). 229; Greenidge, Hist, of 
 Rome, i. 113. 7 CIL. ibid. 28. 
 
366 THE ROMAN ASSEMBLIES 
 
 nated as exempt from distribution, including the Campanian 
 lands, which are leased out by the censors. 1 
 
 f. Certain pasture lands let out to any who wish to feed 
 their live stock thereon, who pay a tax (scriptura) for the 
 privilege. 2 
 
 (6) The distribution of the lands shall be effected by a stand- 
 ing magistracy elected annually by the tribes 3 — the triumviri 
 agris dandis adsignandis.* 
 
 (7) As all available public land is to be utilized in the 
 various ways described above, and as the holders of lands once 
 public are to be guaranteed in their possession, further occupa- 
 tion of land is thereby precluded. 5 
 
 Afterward as Tiberius found it impossible to reconcile the 
 optimates to his measure, he withdrew the second article and 
 proposed to eject illegal holders without compensation. 6 When 
 the nobles induced Octavius, a colleague in the tribunate, to 
 veto the bill, Tiberius had him deposed by a vote of the tribes, 
 and then passed the agrarian law without further opposition, 
 unauthorized however by the senate. 7 The triumviri elected 
 to take charge of the work of distribution were the author of 
 the law, his brother Gaius, and his father-in-law Appius Claudius 
 Pulcher. 8 As the election of these persons was a violation of 
 the Licinian and Aebutian plebiscites, 9 a dispensation was prob- 
 ably granted by vote of the people. 10 When the commission 
 found itself hampered by legal inability to distinguish between 
 
 1 CIL. 200. 1,4, 6, 13, 22; cf. Cic. Leg. Agr. i. 7. 21; ii. 29. 81; Alt. i. 19. 4; 
 Mommsen, in CIL. i. p. 91; Greenidge, ibid. 112 f. 
 
 2 CIL. ibid. 24-6; Voigt, ibid. 227. The classification of public land reserved 
 from distribution by the agrarian law -of 11 1 is that of Mommsen, in CIL. i. p. 90 f. 
 
 3 Cic. Leg. Agr. ii. 12. 31; App. B. C. i. 9. 37; Livy, ep. lviii. 
 
 * They are so called in Lex Lai. Bant. 15, in CIL. i. 197; Lex Rep. 13, 16, 22, 
 ibid. 198; Lex Agr. 16, ibid. 200. 
 
 6 Lex Agr. in CIL. i. 200. 13 f., 17, 21-3; Cic. Att. i. 19. 4; Mommsen, in CIL. 
 i. p. 87. Illegal occupations alone are thereafter mentioned; Cic. Orat. ii. 70. 284; 
 App. B. C. i. 36. 162. 
 
 6 Plut. Ti. Gracch. 10; cf. Greenidge, Hist, of Rome, i. 121; Strachan-Davidson's 
 explanation (Appian, p. 13) seems to be incorrect. 
 
 7 Livy, ep. lviii; Plut. Ti. Gracch. 10-3; App. B. C. i. 12 f.; Cic. N. D. i. 38. 
 106. 
 
 8 Livy, ep. lviii; App. B. C. i. 13. 55; Veil. ii. 2. 3; Flor. ii. 2. 6. 
 
 9 P- 347 f - 10 Lange, Rom. Alt. Hi. 13. 
 
COMITIAL LEGISLATION, 134-82 367 
 
 public and private land, Tiberius carried a second agrarian law 
 ■which invested the triumviri with the necessary judicial power 
 for determining what land was public and what private. 1 It was 
 by virtue of this second enactment that the word iudicandis was 
 introduced into the phrase descriptive of their functions — " iudi- 
 candis adsignandis " or " dandis adsignandis iudicandis." 2 In 
 the year 129, probably at the time of the election to this office, 
 Publius Scipio Aemilianus brought about the transfer of the 
 judicial function to the consuls. Appian, 3 our sole authority 
 for the latter act, speaks only of its discussion in the senate, 
 implying that this body rather than the people passed the reso- 
 lution. In that case the senate must have annulled the second 
 agrarian law on the ground that it was illegally passed ; for in 
 no other way could it set aside a comitial statute.* Some land, 
 already delimited, may still have been subject to distribution ; 
 but as the consuls avoided the disagreeable function received 
 from the commissioners, the work of assignment came speedily 
 to an end. The agrarian law of Ti. Gracchus fell thus into 
 •disuse till it was revived by his brother. 5 
 
 The deposition of Octavius 6 requires especial consideration. 
 In 136 the proconsular imperium had been abrogated, probably 
 by a popular vote 7 ; but no instance of the abrogation of an 
 actual magistracy had thus far occurred. Most scholars con- 
 sider the act unconstitutional. 8 It did indeed involve a sweep- 
 ing departure from long-established custom ; but in favor of its 
 
 1 Livy, ep. lviii : " Promulgavit et aliam legem agrariam, qua sibi latius agrum 
 patefaceret, ut iidem triumviri iudicarent, qua publicus ager, qua privatus esset." 
 
 * CIL. i. 552-5, 583; ix. 1024 f. 
 
 8 B. C. i. 19. 78 f. The context indicates that in Appian's opinion the people had 
 nothing to do with the measure. 
 
 4 Lange, Rom. Alt. ii. 688 (cf. iii. 22) and Greenidge, Hist, of Rome, i. 158, suppose 
 without evidence that Scipio effected his object by means of a law. 
 
 5 P. 373 below. On the agrarian law of Ti. Gracchus, see further Long, Rom. 
 Rep. i. 159-91; Herzog, Rom. Staatsverf. i. 445-52; Ihne, Hist, of Rome, iv. 382- 
 400; Greenidge, Hist, of Rome,'\. 110-28; Neumann, Gesch. Roms, i. 156-84. 
 
 6 Livy, ep. lviii; Veil. ii. z. 3 : " Octavio collegae pro bono publico stanti impe- 
 iriura abrogavit"; Plut. Ti. Gracch. 12; App. B. C. i. 12; Cic. Leg. iii. 10. 24; Dio 
 -Cass. Frag. 83. 4. ' P. 3°°- 
 
 8 Cf. Lange, Rom. Alt. iii. 12; Ihne, Hist, of Rome, iv. 80, 395; Long, Rom. Rep. 
 i. 185 ff. Greenidge, Hist, of Rome, i. 125-7, and Pohlmann, in Sitzb. d. bayer. Akad. 
 J 907. 465 ff., contend for its legality. 
 
368 THE ROMAN ASSEMBLIES 
 
 legality may be urged the fact that nearly all the powers ever 
 possessed by the assembly are known to have been acquired in 
 the way in which Tiberius was attempting to establish for it the 
 right to remove from office — by precedent rather than by law. 
 A statute of the Twelve Tables declared that whatever the peo- 
 ple voted last should be law and valid 1 ; and through the ages 
 preceding the Gracchi they had often applied this principle to 
 the extension of their power at the expense of the senate and 
 magistrates. They were sovereign ; and if they chose to intro- 
 duce the custom of deposing a magistrate whom they regarded 
 as the betrayer of their dearest interests, they had the legal 
 right. The wisdom of the proceeding may be questioned, but 
 he who has followed the history of the assemblies thus far must 
 regard the measure as merely one of the many steps by which 
 the people advanced toward the realization of their sovereignty. 
 Tiberius attempted to apply the same principle to securing 
 his election to the tribunate. His motive was not a purely 
 selfish desire to save his life; it required no superhuman wis- 
 dom to discover that his downfall would mean the collapse of 
 the great reform on which he had set his heart. The continued 
 ascendancy of a popular champion necessarily involved the over- 
 throw of the senatorial government. This idea, which he now 
 clearly grasped, found expression in his new political platform, 
 (i) to shorten the period of military service, (2) by means of a 
 law of appeal to vest the supreme jurisdiction solely in the peo- 
 ple, so as to deprive the senate of its extra-constitutional judicial 
 power, 2 (3) to give the equites equal representation with the 
 senators in the juries, or possibly as Dio Cassius states, to 
 transfer the courts from the senate to the knights. 8 When 
 the day of election came, his peasant supporters were busy 
 with their harvests, and his platform did not strongly appeal 
 to the city plebs, on whom he had chiefly to rely for votes. 
 Had the people insisted, as they twice did in favor of Scipio,* 
 they would have prevailed either with or without an act of dis- 
 
 1 p. 233 f. 2 p. 255. 
 
 8 Plut. Ti. Gracch. 16; Dio Cass. Frag. 83. 7. These sources are obscure and 
 somewhat inconsistent. The proposals of Tiberius can, better than in any other 
 way though not with absolute certainty, be inferred from the laws of his brother. 
 
 * P. 360. 
 
COMITIAL LEGISLATION, 134-82 369 
 
 pensation passed by the senate or by themselves 1 ; but the weak- 
 ness of his supporters rather than any illegality in the proceeding 
 proved his ruin. To free the future reformer from this limita- 
 tion, however, a rogation of C. Papirius Carbo, tribune of the 
 plebs in 131, proposed that a tribune should be eligible to reelec- 
 tion as many times as he chose to offer himself as a candidate. 
 This rogation failed 2 ; but before the tribunate of C. Gracchus, 
 123, "a certain law had already been enacted," as Appian 3 
 obscurely informs us, " that if a tribune should be wanting on 
 the announcement (of the votes), the people might elect one 
 from the whole body of citizens." The statute, which Appian 
 has evidently failed to understand clearly, seems to have pro- 
 vided that if the returns showed the election of only nine 
 tribunes from the candidates proposed, the people could pro- 
 ceed to elect a tenth from the whole body of citizens, including 
 the existing tribunician college ; or equivalently, if for the tenth 
 place the tribes cast a majority of votes for one who was not a 
 candidate, he would be considered legally elected. 4 The object 
 was to enable the people to continue in office an especially popu- 
 lar tribune, and was therefore a notable stride in the direction 
 of monarchy. 
 
 Papirius was more successful with his lex tabellaria, which 
 extended the ballot to legislation, 131. 6 Trials of perduellio 
 alone retained the oral vote. Doubtless this improvement 
 greatly strengthened the rising popular party. A plebiscite 
 
 1 P. 307 f. 2 Livy, ep. lix; Cic. Antic. 25. 96. 
 
 8 B. C. i. 21. 90: Ka! yap ra tfS-ri vbpot Kenipwro el Srfftapxos IvSioi rats irapay- 
 yeKUut, rbv Sijpov in itivrav iiriKtyeirStu. White translates, " For in cases where 
 there was not a sufficient number of candidates, the law authorizes the people to 
 choose from the whole number then in office " ; and scholars usually suppose that in 
 the first clause reference is to candidates. But if tribunus, the equivalent of 8-fipap- 
 xos, stood in the law, it must have signified tribune, not candidate ; and in that 
 case TrapayyMaa, however Appian may have understood it, must be the equivalent 
 of renuntiationibus, " announcements of votes." 
 
 4 Cf. Strachan-Davidson, Appian, p. 23. It was under the second contingency 
 that C. Gracchus was reelected tribune without being a candidate; Plut. C. Gracch. 8. 
 The third time, though as some averred he had a majority of votes, the presiding 
 tribune dared reject them; ibid. 12; Meyer, Gesch. d. Gracch. 94, 11. 3. Fowler's 
 suggestion (Eng. Hist. Rev. xx. 217) that the law permitted but one reelection of 
 an individual is on the whole unlikely. 
 
 6 Cic. Leg. iii. 16. 35; Herzog, Rom. Staatsverf, i. 461; Greenidge, Hist, of Rome, 
 i. 163 f. 
 
 2 B 
 
370 THE ROMAN ASSEMBLIES 
 
 passed about 129, requiring a knight on entering the senate to 
 sell his public horse, deprived the senators of their votes in 
 the eighteen centuries, and completed the separation of the gov- 
 erning aristocracy from the commercial class begun by the 
 Claudian statute of 219. 1 
 
 At some unknown time before the tribunate of C. Gracchus a 
 plebiscite of M. Junius modified the lex Calpurnia concerning 
 extortion, 2 in what way we are not informed. The act is with a 
 high degree of probability attributed to M. Junius Pennus, trib- 
 une of the plebs in 126. 3 If the Junian lex repetundarum was 
 indeed his work, it could have been dictated by no sympathy 
 with the unprivileged classes, for it was this Junius whose 
 plebiscite ordered the expulsion of all aliens from Rome — a 
 measure which Cicero condemns as inhuman. 4 The act last 
 mentioned was the response of the senate and rabble to the 
 effort of the more enlightened Romans to grant the citizenship 
 to the Latins and Italians. The new idea was embodied in a 
 rogation of M. Fulvius Flaccus, consul in 125, which offered the 
 citizenship, or as an alternative the right of appeal, to the Ital- 
 ians, with the purpose of buying off their opposition to the 
 Sempronian agrarian law ; but the measure was so vehemently 
 opposed in the senate that the author withdrew it. 5 The idea 
 however lived in the minds of the reformers till it was finally 
 realized. 
 
 Ten years after the tribunate of Ti. Gracchus his brother 
 Gaius entered upon the same office. Since the beginning of 
 the decennium the leaders of the popular party had made vari- 
 
 1 The measure was being agitated at the time to which Cicero referred the dia- 
 logue On the Republic, iv. 2; cf. Q. Cic. Petit. Cons. 8. 33; Lange, Rom. Alt. ii. 
 657; iii. 25. On the Claudian law, see p. 335 above. 
 
 SP.358. 
 
 8 Lex Acil. Rep. 23, 74, in CIL. i. 198; Zumpt, in Abhdl. d. Akad. zu Berlin, 
 1845. I- 7°' 475-515; Lange, Rom. Alt. ii. 664; iii. 26; Greenidge, Leg. Proced. 
 420; Hist, of Rome, i. 135, 211. The Latin Lex Bantina {CIL. i. 197), identified by 
 some with the Lex Iunia, seems rather to belong to the tribunate of C. Gracchus; 
 P- 379- 
 
 4 Cic. Off. iii. 11. 47; Brut. 28. 109; Fest. 286. 10; Long, Rom. Rep. i. 237 !.; 
 Greenidge, Hist, of Rome, i. 166 f. 
 
 5 App. B. C, i. 21, 34. 152; Val. Max. ix. 5. I ; Ihne, Hist, of Rome, iv. 418-21; 
 Long, ibid. 241; Herzog, Rom. Staatsverf. i. 462; Greenidge, ibid. 167 fif. ; Meyer, 
 Gesch. d. Gracch. 93; Fowler, in Eng. Hist. Rev. xx. 422. 
 
COMITIAL LEGISLATION, 134-82 371 
 
 ous proposals but had accomplished little. The agrarian law- 
 was still nominally in force, though its execution was effectually 
 blocked. The plan of extending the franchise had found its 
 most bitter opponents in the men of the street, on whom the 
 tribunes had chiefly to depend. The ballot in legislation, the 
 possibility of continuous reelection to the tribunate, and the in- 
 crease of discontent with the plutocracy were the only gains. 
 Extraordinary progress was now to be made under the leader- 
 ship of a great creative statesman. The chronological succes- 
 sion of his comitial enactments cannot be determined with 
 absolute certainty. We do not in every instance know whether 
 a given proposal was carried in his first or second year. This 
 much, however, is clear, that most of his measures belong to 123 
 and to the early part of 122. The execution of the laws, includ- 
 ing the seventy days' journey to Carthage, 1 consumed much 
 of the second year, and after his defeat for the third term — 
 about July, 122 — he carried no more plebiscites. 2 Among his 
 first thoughts was that of strengthening the legality of the 
 deposition of Octavius 3 by a rogation which provided that a 
 person so deposed should thereby be debarred forever from 
 office. He probably meant it more as an enunciation of a prin- 
 ciple than as a legislative project. The measure was never 
 offered to vote, but was withdrawn, we are told, at the request 
 of his mother. 4 Far more serious, and of lasting importance, 
 was his lex de provocatione, which, carrying into effect the idea 
 of his brother, 5 forbade the establishment of a special court or 
 the placing of the state under martial law without an act of the 
 people. 6 Further judicial legislation was postponed in the 
 interest of more pressing matters. 
 
 1 In March, April, and May, according to Kornemann, Gesch. d. Gracch. 44. 
 
 2 On the order of his enactments, see Lange, Rom. Alt. iii. 38; Greenidge, Hist, 
 of Rome, i. 210; Herzog, Rom. Staatsvcrf. i. 466; Meyer, Gesch. d. Gracch. 95, n. 
 4; Kornemann, Gesch. d. Gracch. 42 ff. ; Fowler, in Eng. Hist. Rev. xx. (1905). 
 216 ff. Meyer calls attention to the fact that while Appian, B.C. i. 21 f., states the 
 enactments in substantially correct order, he wrongly identifies the date of reelection 
 — midsummer 123 — with the date of entrance upon his second term — December 
 10, 123 — in this way pushing forward into the second year a large group of enact- 
 ments which belong to the latter part of his first term. s P. 367. 
 
 4 Plut. C. Gracch. 4; Diod. xxxv. 25, 2; Fest. ep. 23 (abacti); Lange, Rdm. Alt. 
 ii. 655; iii. 30 f.; Greenidge, Hist, of Rome, i. 202. 5 P. 368. 
 
 6 P. 255 f. For the comitial interdict against Popillius, see p. 256. 
 
372 THE ROMAN ASSEMBLIES 
 
 While colonization and the assignment of land individually to 
 citizens, which Gaius planned on an extensive scale, as will soon 
 be noticed, were to provide for the agricultural population at the 
 expense of the state, and while the nobles and knights continued 
 to reap an unfailing harvest of wealth in the administration of 
 the provinces, the democratic reformer could think it only just 
 and expedient to subsidize the populace of the capital. The 
 artificial growth of Rome as a political centre, with no sound 
 economic basis but with a most unfavorable geographical situa- 
 tion, rendered the problem of living difficult for the masses even 
 in time of prosperity ; and recently circumstances had so dimin- 
 ished the grain supply that relief from the government seemed 
 the only resource against threatening famine. 1 Before the time 
 of the Gracchi on occasions of especial scarcity or of especial 
 plenty the state had sold grain at a reduced rate; and the 
 aediles, we know not how often, had made similar reductions at 
 their own expense. 2 There can be no doubt, too, that individual 
 nobles in a private capacity often distributed free or cheap grain 
 among the poor to secure their support in elections. Attached 
 by such means to the nobles and the senate, the rabble had been 
 in the main conservative. There was a certain degree of justice 
 in giving the populace a share in the profits of empire and some 
 wisdom in substituting system for the existing irregularity. A 
 political result, we may also say aim, of the frumentarian 
 plebiscite of Gaius was to disattach the city populace from its 
 conservative moorings and to enlist it in the service of reform. 
 His measure, the first frumentarian law in Roman history, pro- 
 vided for the monthly sale to every citizen who applied for it — 
 practically to those only who resided in or near Rome — of a 
 fixed number of modii of wheat at six and a third asses a modius, 3 
 which was probably about half the average market price. The 
 law won for him the good will of the populace, 4 but his oppo- 
 nents complained that it depleted the treasury and excited the 
 
 1 Cf. Greenidge, Hist, of Rome, i. 204 f. ; Fowler, Eng. Hist. Rev. xx. 224. 
 
 2 Humbert, in Daremberg et Saglio, Diet. ii. 1346. For examples, see Marquardt, 
 Rom. Staatsv. ii. 114, and especially, Oliver, Roman Economic Conditions, 61 ff. 
 
 3 Livy, ep. lx; App. B. C. i. 21. 89; Schol. Bob. 303; Veil. ii. 6.3; Plut. 
 C. Gracch. 5. 
 
 4 App. ibid. § 90; Diod. xxxv. 25; Cic. Scst. 48. 103. 
 
COMITIAL LEGISLATION, 134-82 373 
 
 mob to seditions. 1 It set an example for further reductions at 
 the expense of the state. Hence notwithstanding some good 
 features the effect of the law was pernicious, as it tended to 
 increase the number of idlers, to make the populace improvi- 
 dent, and to encourage demagogism. It must be said, on 
 the other hand, that had Gaius lived to carry out his wide 
 scheme of colonization, he would have so relieved the capital 
 of its semi-pauper population as to render frumentations un- 
 necessary, whereupon the law would naturally have been 
 repealed. 2 
 
 After providing in the frumentarian act an expedient which, 
 we may believe, he looked upon as temporary, he resumed the 
 work of construction 3 by reviving his brother's agrarian law. 4 
 The continuance of the assignations as long as there remained 
 any public land that could be distributed was a most essential 
 element of his plan. Among the articles retained were those 
 which subjected the holders of assigned lots to a tax 6 and ex- 
 empted from distribution the Campanian territory not set apart 
 for his colony at Capua, 6 as well as various other lands excepted 
 both by the agrarian law of Tiberius and by that of in J Doubt- 
 less it also reinvested the three commissioners with judicial 
 power, without which they could accomplish nothing. Through 
 this agrarian law, or possibly through a subsequent lex viaria, 
 the triumviri were empowered to build roads for the accommo- 
 dation of the new peasantry. 8 Though introducing no new 
 principle, 9 his lex agraria was not a simple reaffirmation of his 
 brother's law with amendments and additions ; but " a compre- 
 hensive statute, so completely covering the ground of the earlier 
 Sempronian law that later legislation cites the law of Gaius, not 
 
 1 Cic. Off ii. 21. 72; Tusc. iii. 20. 48; Diod. ibid; Oros. v. 12. 4; cf. Long, Rom. 
 Rep. i. 261-3; Greenidge, Hist, of Rome, i. 203-7. 
 
 2 The view here offered was suggested in Botsford, History of Rome (1901), 156. 
 It is presented in greater detail by Fowler, in Eng. Hist. Rev. xx (1905). 221 ff. 
 
 8 Begun by his lex de provocatione ; p. 371. 
 
 4 Placed before the frumentarian law by Lange, Rom. Alt. iii. 31. Meyer, Gesck. 
 d. Gracch. 95, n. 4, and Kornemann, Gesch. d. Gracch. 43, hold the view represented 
 above in the text. 6 Plut. C. Gracch. 9. 
 
 6 CIL. i. 200. 6, 22 ; cf. Lange, Rom. Alt. iii. 32. 7 P. 364 f., 386. 
 
 8 App. B. C. i. 23. 98; Plut. C. Gracch. 6 f. ; cf. Voigt, in Verhdl. sacks. 
 Gesellsch. d. Wiss. xxiv (1872). 68 ff. 9 Livy, ep. lx ; Mommsen, in CIL. i. p. 88. 
 
374 THE ROMAN ASSEMBLIES 
 
 that of Tiberius Gracchus, as the authority for the regulations 
 which had revolutionized the tenure of the public land." 1 
 
 These measures were passed before the tribunician elections 
 of the year, 2 which took place as usual in midsummer. 3 It was 
 his frumentarian law, together with the hope aroused by the long 
 array of promulgated measures, which secured his reelection. 
 Soon afterward, though still in 123, he brought before the 
 comitia a rogation concerning the qualification of iudices. As 
 the quaestiones extraordinariae from the earliest times were 
 made up of senators, it was natural that the standing courts also 
 from the time of their institution should be similarly composed.* 
 Under such conditions the judical authority afforded no effi- 
 cient check upon maladministration ; and this immunity from 
 the law, together with the temptations to the misuse of power 
 especially in provincial commands, tended in the course of gener- 
 ations to make of the senate, with individual exceptions, a class 
 of grand criminals. To remedy this evil and at the same time 
 to remove from the senate the strongest foundation of its po- 
 litical power, 6 Ti. Sempronius Gracchus had proposed his rogatio 
 iudiciaria either for transferring the courts entirely to the 
 knights, or more probably for making up the juries of an equal 
 number of senators and knights. 6 It failed to become a law ; 
 but Gaius now took up the matter, and after experimenting un- 
 successfully with one or two projects, 7 he finally, 122, carried a 
 
 1 Greenidge, Hist, of Rome, i. 209 ; cf. CIL. i. 200, 1, 3, 4, 6, 22. Dio Cassius, 
 Frag. 84. 2, intimates that after the death of Scipio the distribution of the public land 
 was renewed with energy. Reference must accordingly be to the operation of the 
 law of Gaius. 
 
 2 Cf. App. B. C. i. 21 f. 3 App. B. C. i. 14. 58. 
 
 * P- 358- 6 P- 345- 
 
 6 P. 368. The measure is referred to as a lex iudiciaria by Macrob. Sat. iii. 14. 6. 
 
 7 The epitomator of Livy, lx, supposes that Gaius offered and actually carried a 
 measure for adding six hundred knights to the senate with the understanding that 
 the jurors were to be drawn from that body thus enlarged; cf. Mommsen, R'otn. Staatsr. 
 iii. 530, n. 1. Such an act, however, could not have been termed a lex iudiciaria, as 
 it would have been concerned simply with the composition of the senate. Everything 
 is opposed to the assumption that the bill in this form passed or at least that it was 
 put into effect. Plutarch, C. Gracch. 5 f., seems to signify that his law provided for 
 an album of six hundred jurors, one half to be drawn from the senate, the rest from 
 the knights. It is by no means necessary, with Fowler, in Eng. Hist. Rev. xx (1905). 
 426, n. 16, to interpret the expression Si rpiaKofflovs t&v linrioiv 7rpo<r/taWXe£ei' abrois 
 o$<n Tpiaitoo-fois, koI tAs Kpleeis koiv&.stu>v 4£aica<rimi iirolr/o-f (cf. Ag. et Cleom. et Gracch. 
 
COMITIAL LEGISLATION, 134-82 375 
 
 plebiscite which substituted knights for senators in the alba 
 iudicum, 1 from which not only standing courts but also special 
 commissions were to be filled. 2 It is uncertain whether mention 
 was made of equites or whether the result was reached merely 
 by exclusion and definition. There can be no doubt that the 
 qualifications were identical with those described in the extant 
 lex repetundarum, 3 attributed by scholars to M'. Acilius Glabrio, 
 a colleague of Gaius, and adopted accordingly soon after the 
 Sempronian judiciary law. The terms of the Acilian statute ex- 
 cluded tribunes of the plebs, quaestors, tresviri capitales, military 
 tribunes of the first four legions, tresviri for assigning lands, 
 persons who had fought in the arena for pay or had been 
 condemned by a quaestio or by the people. It excluded further 
 all under thirty or over sixty years of age, and all who had their 
 domicile more than a mile from Rome, the fathers, brothers, 
 and sons of those who held the offices above enumerated, 
 senators, and their fathers, brothers and sons, as well as persons 
 living beyond the sea. A part of the statute missing from the 
 inscription may have contained a minimal property qualification, 
 which could have been no other than four hundred thousand 
 sesterces ; or it may have restricted jury service to those who 
 " possess a public horse."* According to Plutarch Gaius was 
 allowed the privilege of selecting the jurors. Had he remained 
 in power and continued in this function, he doubtless could have 
 
 Comp. 2) as " adding three hundred equites to the senate to form the body of iudices." 
 These sources have confused the projects with the law as actually passed ; cf. 
 Strachan-Davidson, Appian, p. 23. 
 
 1 App. B. C. i. 22. 92; Veil. ii. 6. 3; 32. 3; Varro, inNon. Marc. 454; Tac. Ann. 
 xii. 60; Pseud. Ascon. 103, 145; Flor. ii. I. 6; 5. 3 (iii. 13. 17); Diod. xxxv. 25; 
 Plut. C. Gracch. 5; Livy, ep. lx; cf. Lange, Rom. Alt. ii. 668; iii. 38-40; Herzog, 
 Rom. Slaatsverf. i. 466 f. ; Long, Rom. Rep. i. 263-9; Greenidge, Leg. Proced. 434; 
 Hist, of Rome, i. 212-7 > Ihne, Hist, of Rome, iv. 457-64; Madvig, Rom. Staat. ii. 
 219-21. 
 
 2 This is true at least of the extraordinary quaestio established by the Mamilian 
 law of no; Cic. Brut. 34. 128; cf. 33. 127; Schol. Bob. 311; Greenidge, Leg. 
 Proced. 381 f., 435. s CIL. i. 198. 
 
 4 CIL. i. 198. 16. There was under the republic a census qualification for the 
 knights who acted as iudices (Cic. Phil. i. 8. 20), though we have no authority that 
 the limit of four hundred thousand sesterces existed before the principate. Originally 
 Mommsen supplied the lacuna with a statement of the money qualification as here 
 given ; but afterward, changing his mind, he filled the gap with " equum publicum 
 habebit habuerit." 
 
376 THE ROMAN ASSEMBLIES 
 
 compelled the courts of his choosing to do justice. But the privi- 
 lege seems to have been restricted to the first list ; thereafter, as 
 provided by the lex repetundarum of Acilius the praetor qui inter 
 peregrinos ius dicit was to attend to the matter. 1 The relation be- 
 tween the Sempronian lex iudiciaria and the lex Acilia repetun- 
 darum has not been precisely determined. 2 If the Sempronian 
 statute preceded the Acilian, 3 as is not unlikely, it was the inten- 
 tion of Gaius to pass a general law regarding the qualifications and 
 mode of appointment of jurors, to be superseded in large part 
 by a succession of laws, which dealing with individual courts, 
 should regulate the qualification and appointment of their several 
 juries as well as the procedure and the penalties. This policy 
 indicates a conviction that he could give the reformed judicial 
 system greater stability by making the separate laws here re- 
 ferred to entirely independent of his original lex iudiciaria. 4 
 
 The lex Acilia, described above as a plebiscite of M'. Acilius 
 Glabrio, colleague of C. Gracchus in 122, 6 took the place of the 
 lex Iunia of 126, 6 and is to be identified with a lex repetun- 
 darum extensive fragments of which are preserved in an 
 inscription. 7 Whereas earlier laws on the subject rendered 
 governors of provinces, and perhaps administrative officers in 
 
 a An article of the lex Acilia provides that within ten days after the enactment of 
 this statute the said praetor shall choose the four hundred and fifty persons from 
 whom the jurors of that court are to be drawn; thereafter the revision is to be 
 annual; CIL. i. 198. 12, 14. 
 
 2 Strachan-Davidson, Appian, p. 23, followed by Fowler, in Eng. Hist. Rev. xx. 
 429, identifies the two — on untenable ground, for the reliable sources speak dis- 
 tinctly of a Sempronian law and an Acilian law. 
 
 8 Mommsen, Rom. Staatsr. iii. 531, n. 1, preferably regards the Sempronian as 
 the later ; but in that case the transfer would have been achieved in substance by 
 the Acilian statute — a view which is contradicted by the sources. 
 
 * This idea would explain the fact that the extant fragments of the lex Acilia 
 contain no reference to a Sempronian lex iudiciaria. 
 
 6 Cic. Verr. i. 17. 51 f.; II. i. 9. 26; Brut. 68. 239; Pseud. Ascon. 149, 165. 
 
 6 P. 37°- 
 
 7 CIL. i. 198. Reference to the Illviri of the Sempronian agrarian law (§ 13, 
 16, 22) proves it to belong to 133-119, while the fact that it does not admit senators 
 among the jurors requires it to follow the judiciary law of C. Gracchus; and more 
 particularly, the implication that at the time of its enactment the lex Rubria (p. 383 
 below) was in force places it between 123 and 121 ; Mommsen, in CIL. i. p. 55; 
 Ruggiero, Diz. Ep. i. 41. In general on the law, see Rudorff, Ad legem Aciliam; 
 Zumpt, in Abhdl. d. A&ad. zu Berlin, 1845. '-7°. 47S - S I S; R ° m - Criminalr. i. 
 99 ff.; Buschke, in Zeitschr. f. Rechtsgesch. v (1866). 46-84; Hesky, in Wiener 
 
COMITIAL LEGISLATION, 134-82 377 
 
 Italy, alone liable to punishment, the Acilian statute includes mag- 
 istrates and senators and the sons of both as well as the holders 
 of pro magisterial imperium. 1 The crime consists in taking in any 
 one year from those whom the law is designed to protect — 
 from the allies, Latins, provincials, and exterior nations under 
 the sway or in the friendship of the Roman people 2 — by 
 gift, seizure, compulsion, or other illegal means money or 
 property exceeding a specified sum, which a lacuna in the in- 
 scription leaves unknown, but which is supposed to be four 
 thousand sesterces. 8 Holders of magistracies and imperia can- 
 not be brought to trial for the crime till after the expiration 
 of their terms,* on the general principle which exempts from 
 prosecution those who are engaged in the service of the 
 state. 6 The praetor qui inter peregrinos ius dicit within ten 
 days after the passage of the statute, and in future within ten 
 days after entering upon his office, is to choose for this court 
 four hundred and fifty persons with the qualifications for jury 
 service described above in connection with the Sempronian 
 judiciary law. From this group the accused is to reject under 
 oath his kinsmen within a specified degree and his sodales. The 
 accuser is to draw from the remainder a hundred persons, tak- 
 ing oath that he has chosen no kinsman within a specified 
 degree or sodalis. The accused rejects fifty of the hundred, 
 and the remaining fifty constitute the jury for trying the 
 case. 6 The rules of procedure in the trial and the amount of 
 
 Studien, xxv (1903). 272-87; Brassloff, ibid. xxvi. 106-17; Lange, Rom. Alt. ii. 
 664; iii. 40; Mommsen, Rom. Staatsr, Hi. 642; Rom. Strafr. 708 f.; Greenidge, 
 Leg. Proced. 420; Hist, of Rome, i. 214, u. 2; Ruggiero, ibid. 41-4; Klebs, in 
 Pauly-Wissowa, Real-Encycl. i. 256. 
 
 1 Lex Rep. 2 f.; cf. 8 f. 2 Lex Rep. 1. 
 
 8 Veil. ii. 8. 1 ; cf. Cic. Verr. iii. 80. 184; Ruggiero, Viz. Ep. i. 42. 
 
 * Lex Rep. 8 f. 
 
 6 The principle was expressed in an article of the lex Memmia de incestu of 1 1 1 
 (Val. Max. iii. 7. 9), and probably in every law for the establishment of a court. It 
 was used throughout the history of the republic; cf. Livyx. 37. 7; 46. 16 (year 293); 
 p. 289 above; Suet. Caes. 23 (59); Dio Cass, xxxix. 7. 3 (57). 
 
 In this connection mention may be made of the lex Hostilia, which allowed ac- 
 tions for theft to be brought in behalf of persons absent in the service of the state or 
 in captivity or in wardship; Just. Inst. iv. 10. The date is unknown, though Voigt 
 Rom. Rechtsgesch. i. 282, n. 14, inclines to assign it to 209 or 207. 
 
 6 Lex Rep. 19-26; Mommsen, Rom. Strafr. 216 f. Ruggiero, ibid. 43, is obviously 
 wrong. 
 
378 THE ROMAN ASSEMBLIES 
 
 liability of the accused in the event of conviction are given. 
 The accuser, if an alien, is granted as a reward for a success- 
 ful prosecution the Roman citizenship for himself and his born 
 sons and grandsons. If he is a Latin and does not want the 
 citizenship, he is given instead the right of appeal. 1 Probably 
 the law contained provisions for the punishment of corruption 
 in the patrons of the accusers and in the praetor and jurors. 2 
 
 It is certain that Gaius carried a law also for reconstituting 
 the quaestio inter sicarios et veneficos, 3 which had originally 
 been established shortly before 141. 4 The Sempronian law on 
 this subject contained a provision for the punishment of bribery 
 or conspiracy committed in trials of the kind. The article 
 referred to included the words " Ne quis iudicio circumvenire- 
 tur," 6 a principle repeated as " Qui coisset, quo quis condem- 
 naretur" 6 in the corresponding article of the Cornelian law 
 which superseded the Sempronian. There was no quaestio for 
 dealing especially with judicial corruption and conspiracy, but 
 the accused was brought to trial before the very court in relation 
 to which his crime was alleged to have been committed. 7 The 
 provision was directed against the accuser, against magistrates 
 and senators who presided over such courts, and presumably 
 against equestrian jurors who accepted bribes. 8 
 
 1 Lex Rep. 76-8; cf. 83-5. 
 
 2 § 28 states that money within a specified limit might legally be received — 
 perhaps by the patron of the accuser — from which we may infer that the law 
 defined precisely what was permitted and what forbidden all persons participating 
 in the trial; cf. Brassloff, in Wiener Studien, xxvi. 109 f. 
 
 3 Cic. Cluent. 56. 154 : " Mi (senatus) non hoc recusabant, ne ea lege accusarentur, 
 qua nunc Habitus accusatur, quae turn erat Sempronia, nunc est Cornelia " (" They did 
 not object to being accused under that law under which Habitus is now being tried, 
 which was then the Sempronian but is now the Cornelian statute"). The trial was 
 before the quaestio veneficis under the Cornelian law which constituted this court and 
 which is described as essentially identical with a Sempronian law. CIL. i. p. 200. 
 xxxiii: ("C. Claud. Ap. F. C. N. Pulcher) . . . Iudex. Q. Veneficis," aedile 
 99, praetor 95, consul 92, corroborates the existence of such a court before Sulla. 
 For other proofs, see Lengle, Bull. Verf. 36 ff.; cf. Lange, Rom. Alt. ii. 664. 
 
 4 P. 255, n. 1 (4), 358. 6 Cic. Cluent. 55. 151. 6 Ibid. 52. 144. 
 
 ' In 66 Cluentius Habitus was brought to trial before the quaestio inter sicarios 
 et veneficos on the charge (1) of having corrupted the jurors in an earlier trial of the 
 kind, (2) of poisoning; Cic. Cluent.; cf. Miinzer, in Pauly-Wissowa, Real-Encycl. iv. 12. 
 
 8 The whole tenor of Cicero's Pro Cluentio is to the effect that the knights were 
 not bound by the provision against bribery. He had a strong motive, however, 
 for bringing into prominence the article which provided for the punishment of mag- 
 
COMITIAL LEGISLATION, 134-82 379 
 
 We have in an inscription the concluding articles of a 
 criminal law 1 of this period. It is on a bronze tablet found on 
 the site of the ancient Italian city Bantia, and is called the 
 Latin Lex Bantina to distinguish it from another lex in 
 Oscan on the opposite face. 2 A reference to the triumviri 
 agris dandis adsignandis, who seem to have been those elected 
 under the Sempronian agrarian law, places the document be- 
 tween 133 and 118. It is concerned with a quaestio. 3 An 
 attempt has been made to identify it with the lex Iunia 
 repetundarum and to assign it accordingly to 126. 4 The cir- 
 cumstance, however, that it was passed without the authoriza- 
 tion of the senate, and that its whole spirit is anti-senatorial, 
 would lead us rather to the conclusion that it was the work of 
 C. Gracchus at the time of his most bitter struggle with the 
 optimates yet before he had lost control of the comitia. The 
 fragment contains no more than the sanctio — provisions for 
 enforcement of the statute. The beginning of the first extant 
 article is lost, but it must have described the class of offenders 
 to which the article applies, and the nature of the offence. It 
 speaks merely of disabilities imposed on the offender, among 
 which are the following : he must not address the senate or 
 vote in a public trial (poplico ioudicio) or in comitia or receive 
 or give testimony in court or wear the praetexta and soleae in 
 public or be chosen into the senate or remain in it if already a 
 member. The second article provides that if a tribune of the 
 plebs, a quaestor, a triumvir capitalis, a triumvir for assigning 
 
 istrates and senators, and for suppressing the one, if there was one, concerning the 
 punishment of equites ; and this suppression was rendered easy by the fact that the 
 Cornelian law then in force mentioned senatorial jurors only. Appian, B. C. i. 22. 
 97 (cf. 35. 158, 161), assumes that under the Sempronian law there were trials for 
 the bribery of jurors, rendered useless, however, and finally done away with by the 
 conspiracy and violence of the knights; cf. Lengle, Sull. Verf. 18 f. This interpre- 
 tation of the known facts seems preferable to the view of Cicero, which, however, is 
 accepted by most scholars; cf. Mommsen, Rom. Strafr.635; Greenidge, Leg. Proced. 
 421; Hist, of Rome, i. 216 f. 
 
 1 CIL.'x. 197; Ritschl, Prise, tat. mon. epigr. tab. xix. 
 
 2 Bruns, Font. Iur. p. 48-53 ; Girard, Textes, p. 26-9. 
 
 8 As indicated by the " Ioudex, quei ex hace lege plebeive scito factus erit " ; § 2. 
 
 * Karlowa, Rom. Rechtsgesch. i. 431. Kirchhoff, Stadtrecht von Bantia, 90-7, re- 
 gards it as a part of a judiciary law. Mommsen, in CIL. i. p. 46 f., connects it with a 
 treaty between Rome and Bantia. See also Kriiger-Brissaud, Hist. d. source d. droit 
 Rom. 94. 
 
380 THE ROMAN ASSEMBLIES 
 
 lands, or a iudex appointed under the law itself, or a senator 
 shall with knowledge and malice prepense violate the law or 
 hinder its operation, he shall be liable to a fine, the amount of 
 which a lacuna in the text leaves unknown. The third article 
 provides that a consul, praetor, aedile, tribune of the plebs, 
 quaestor, triumvir capitalis, or triumvir for the assignment of 
 lands now in office shall, within the next five days after ascertain- 
 ing that the law has been enacted, swear in the manner described 
 below : also that the dictator, consul, praetor, master of horse, 
 censor, aedile, and other officials as above enumerated, and the 
 iudex appointed under this law shall in future take the oath 
 within five days after entering upon their magistracies or impe- 
 ria. They shall give oath to the urban quaestor publicly in 
 front of the temple of Castor, swearing by Jupiter and the di 
 Penates that they will do as the law requires and will not with 
 knowledge and malice prepense violate the law or by interces- 
 sion or otherwise hinder its administration. He who fails to 
 swear shall not be candidate for a magistracy or imperium, or 
 manage or retain either, or address the senate or be chosen into 
 it ; and the quaestor shall keep a list of those who have taken 
 the oath. The fourth article provides that whoever is or shall 
 be a senator, or shall have the right of addressing the senate 
 after this law has been passed, shall within the next ten days 
 after ascertaining the fact of its enactment take an oath like 
 that described in article 3. The penalty for failure to swear 
 is not mentioned in the extant fragment, but must at the mildest 
 have been expulsion from the senate. 
 
 Closely connected with the transfer of the iudicia from the 
 senators to the knights is the statute of Gaius concerning the 
 taxation of Asia. It ordered the censors to let out the taxes of 
 this province to the highest bidders ; and it limited the right of 
 the senate to lessen the sum agreed upon. 1 Under such an 
 arrangement, however, no sufficient guarantee could be pro- 
 vided for the security of the provincials from publican exac- 
 
 1 Cic. Verr. iii. 6. 12; Alt. i. 17. 9; Schol. Bob. 259; Veil. ii. 6. 3; Gell. xi. 10; 
 App. B. C. v. 4. 17 f.; Fronto, Ad Vtrum, p. 125; Lange, Rom. Alt. ii. 674 f.; iii. 
 34; Herzog, Rom. Slaatsverf. i. 468 f.; Greenidge, Hist, of Rome, i. 217-21. 
 Hitherto the senate had exercised unrestricted power in granting such remissions; 
 Polyb. vi. 17. 5. 
 
COMITIAL LEGISLATION, 134-82 381 
 
 tions. 1 The political result of this legislation in favor of the 
 knights was to invest them not only with an important share 
 in the adminstration, but through the courts with a superiority 
 even over the senate. 2 The opposition of the poorer class to 
 the aristocracy could never be otherwise than uncertain and 
 fitful ; but the knights with their immense wealth and their 
 efficient organization were to be henceforth an ever present 
 rival of the senate. The author of the law had given the state 
 a double head, 8 which was to prove the source of civil discord ; 
 or nearly in his own words, he had thrust into the body of the 
 senate a sword which nothing could withdraw. 4 For a few 
 months their benefactor may have cherished the delusion that 
 he could depend upon their grateful support ; he lived to dis- 
 cover that they cared not for him or his reforms but only for 
 their immediate interests. In his work of construction the 
 statesman found them slightly more serviceable than the pro- 
 letariate. 
 
 The right which the senate had hitherto possessed of assign- 
 ing the provinces to the magistrates and promagistrates accord- 
 ing to its pleasure gave a great opportunity for favoritism and 
 partisanship ; it could thwart the will of the people by assign- 
 ing a popular consul to an insignificant province. To deprive 
 the senate of a power which could be so easily perverted to 
 wrong use, C. Gracchus proposed and carried an act which 
 ordered the senate before the election to name the provinces 
 that were to be consular. 6 An article forbade tribunician inter- 
 
 1 App. B. C. v. 4. 19; Diod. xxxv. 25. 2 App. B. C. i. 22. 94-7. 
 
 8 Varro, in Non. Marc. 454; Flor. ii. 5. 3 (iii. 17). 
 
 4 Diod. xxxvii. 9; cf. Cic. Leg. iii. 9. 20. As a substitute for his law concerning 
 the taxation of Asia his opponents vainly offered the rogatio Aufeia, probably 
 pretorian, on the same subject; Gell. xi. 10; Lange, Rom. Alt. ii. 675; iii. 35. 
 
 6 Cic. Prov. Cons. 2. 3; Bali. 27. 61; Dom. 9. 24; Fam. i. 7. 10; Sail. lug. 27; 
 Lange, Rom. Alt. iii. 41; Herzog, Rom. Staatsvtrf. i. 470. Before the enactment of 
 this law it was possible for the people to grant a province to whomsoever it pleased, 
 whether magistrate or private person. A lex of 131, probably tribunician, had given 
 the province of Asia to P. Licinius Crassus, consul; Livy, ep. lix; Cic. Phil. xi. 8. 
 18. The Sempronian law did not affect their right. In 107 a plebiscite of C. 
 Manlius granted Numidia, with the conduct of the Jugurthine war, to C. Marius, 
 consul; Sail. lug. 73; Gell. vii. II. 2; CIL. i. p. 290 f. On the Sulpician law for 
 granting the conduct of the Mithridatic war to Marius, then a private citizen, see 
 p. 404. 
 
382 THE ROMAN ASSEMBLIES 
 
 cession against such action of the senate. 1 Far from improving 
 the administration, however, this statute tended to foster that rou- 
 tine which was one of the most marked defects of oligarchic rule. 2 
 
 As under the government of the nobility military affairs were 
 in the hands of the magistrates and senate, this field was closed 
 to comitial legislation. 3 One of the most notable indications of 
 growing democracy was the project of Ti. Gracchus, 133, for 
 shortening the period of service. It was not brought to vote ; * 
 but his brother Gaius succeeded in passing a plebiscite, 123, 
 which ordered that the state should bear the cost of clothing 
 soldiers, and forbade the enlistment of boys before the close of 
 their seventeenth year. 5 The pay of the soldiers, which since the 
 war with Hannibal had remained five and a third asses a day, 
 had under new conditions become wholly inadequate ; and cer- 
 tainly insistence on the legal age limitation was prudent as well 
 as humane. There is no ground, then, for imagining with 
 Diodorus 6 that in this salutary measure Gaius was catering for 
 the support of the soldiers by inciting them to disobedience and 
 lawlessness. 
 
 His greatest constructive work he aimed to achieve through 
 colonization and through the extension of the franchise. His 
 colonial law, 123, proposed to establish many settlements in 
 Italy, 7 two of which at least should be made up of men of the 
 best character, not the neediest but traders and workmen of 
 moderate means. 8 The two actually founded were Scolacium 
 and Neptunia, 9 both in situations favorable for commerce. 
 
 1 Cic. Prov. Cons. 7. 17. 2 Cf. Greenidge, Hist, of Rome, i. 222 f. 
 
 8 Lange, Rom. Alt. ii. 672. 4 P. 368. 
 
 5 Plut. C. Gracch. 5; cf. Livy xxv. 5. 5-8. In speaking on the rogation of Cn. 
 Marcius Censorinus, a proposal not otherwise known, Gaius is said to have remarked : 
 " Si vobis probati essent homines adulescentes, tamen necessario vobis tribuni mili- 
 tares veteres faciundi essent " ; Charis. 208. The new epitome of Livy proves that 
 the military question was more prominently before the public at this time than has 
 hitherto been supposed. 
 
 6 XXXV. 25. For the Gracchi in general Diodorus draws from Posidonius, an 
 exceedingly hostile source. 
 
 7 Livylx; App. B. C. i. 23 f.; Plut. C. Gracch. 6, 8 f.; (Aurel. Vict.) Vir. III. 
 65. 3. The date is established by Veil. i. 15. 4; Oros. v. 12. I; cf. Meyer, Gesch, 
 d. Gracch. 95, n. 4; Mommsen, in CIL. p. 87, 96. 
 
 8 Plut. C. Gracch. 9; cf. Greenidge, Hist, of Rome, i. 224 f. 
 
 9 Veil. i. 15. 4; (Aurel. Vict.) Vir. III. 65. 3; cf. Kornemann, in Pauly-Wissowa, 
 
COMITIAL LEGISLATION, 134-82 383 
 
 Several other settlements in Italy are attributed to his colonial 
 or agrarian statute. 1 As his colonies were exclusively citizen, 2 
 if any aliens took part, they must by virtue of the colonial law 
 have obtained the Roman rights. The statute of his colleague 
 Rubrius the same year (123) provided for the founding of Juno- 
 nia on the site of Carthage. 3 But the most liberal and states- 
 manlike measure was reserved for his second tribunate, 122. 
 It was a proposal to grant full citizenship to the Latins and the 
 ius Latii to the remaining allies. 4 The rejection of the bill by a 
 popular vote proved the leader far too liberal and too progress- 
 ive for his supporters. Deceived by the spurious proposals of 
 M. Livius Drusus, 5 a colleague of Gaius, for the foundirtg of 
 twelve colonies, the members of which were to hold their lots by 
 fee simple and consequently exempt from rents, and for depriv- 
 ing the Roman magistrates of the right to inflict corporal pun- 
 ishment on Latins even when in military service under their 
 commands, 6 the populace, readily accepting the new propo- 
 
 Real-Encycl. iv. 522; Ferrero, Rome, i. 55. His plan to colonize Capua (Plut. C. 
 Cracch. 8) was not carried out. 
 
 1 The lex Sempronia or Graccana, mentioned in the Liber Coloniarum, in Gro- 
 malici (Lachmann), p. 229, 233, 237, 238; cf. p. 216, 219, 228, 255; cf. Greenidge, 
 Hist, of Rome, i. 224, n. 2. 
 
 2 This fact is deduced from the literary references to the subject and from the 
 terms of the agrarian law of 1 1 1 ; CIL. i. 200. 5, 13; cf. Mommsen's comment, p. 90. 
 The same principle holds for any other colonies founded in Italy between 133 
 and in. 
 
 8 Lex Acil., in CIL. i. 198. 22; Lex Agr,, CIL. i. 200. 59; Veil. i. 15. 4; ii. 7. 8; 
 Plut. C. Gracch. 10 f.; App. B. C. i. 24; Pun. 136; Livy, ep. lx; Fronto, Ad 
 Verum, ii. p. 125; Sol. 28. For the date, see Veil. i. 15. 4; Oros. v. 12. 1; 
 Eutrop. iv. 21. 
 
 4 Veil. ii. 6. 2; Plut. C. Gracch. 5, 8 f. ; App. B. C. i. 23. 99; 34. 153; cf. Her- 
 zog, Rom. Staatsverf. i. 474 f. ; Greenidge, Hist, of Rome, 233-7. About the end of 
 123 or the beginning of 122 Gaius had proposed to give the Latins equal suffrage 
 with the Romans; Plut. ibid. 8 f. ; Kornemann, Gesch. d. Gracch. 45. The promul- 
 gation of this earlier rogation must have preceded that of the Livian bills. 
 
 The bill (or possibly bills) which included the Italians among the recipients of 
 the citizenship could have been offered only between his return from Carthage and 
 the elections of midsummer, 122; Kornemann, ibid. 51; Fowler, in Eng. Hist. Rev. 
 xx. 425. 
 
 6 Cf. Fannius, in Jul. Victor vi. 6. p. 224 Or. ; Charisius, p. 143 Keil. 
 
 6 Appian, B. C. i. 23. 101 ; Plut. C. Gracch. 9. Plutarch, who alone speaks of 
 the exemption from rent, seems to consider the measure to have applied retroactively 
 to the Sempronian settlements as well as to those proposed by Livius. Although 
 this could hardly have been the intention of the Livian act, the exemption of the 
 
384 THE ROMAN ASSEMBLIES 
 
 sals, 1 turned against their true champion, and defeated him in the 
 election for the tribunate for the ensuing year. 2 It was probably 
 the same measure of Gaius for extending the citizenship which 
 alienated from him the equites, who in every crisis pursued their 
 own selfish ends. 3 In the ensuing struggle between the senate 
 and Gaius they took the side of the former. 4 
 
 In the tribunate of Gaius Gracchus the life of the comitia 
 reached the highest point of intensity. The two years of his 
 administration afford evidence of what the assembly could ac- 
 complish when directed by the personality of a great statesman. 6 
 The sum total of the measures adopted should be estimated not 
 as a completed work, but as a foundation to be strengthened at 
 defective points and to be built upon till the whole structure of 
 the state and empire should be reconstituted and freshly vital- 
 colonists under it would naturally lead to the extension of equal privileges to the 
 beneficiaries of the Sempronian agrarian laws. 
 
 1 Appian, B. C. i. 35. 156 (cf. p. 397 below) assumes that the colonial bill of 
 Livius became a law. If that is true, there is no reason for supposing that the other 
 was dropped before being brought to vote. Gaius might have prevented both by 
 his veto (Lange, Rom. Alt. iii. 45) ; but even if he felt the intention to be mischiev- 
 ous, he could not have afforded to oppose so popular measures. Mommsen, in CIL. 
 i. p. 87, is of the opinion that Minervia may have been a Livian colony; but he can- 
 not understand why the others provided for were not founded. The reason doubt- 
 less is that the senate, which had used Livius as a tool, never seriously intended to 
 execute the law. 
 
 2 A rogation of Gaius, proposed about the same time as the lex de civitate danda, 
 concerning the order of voting in the comitia centuriata is mentioned by (Sail.) 
 Rep. Ord. ii. 8 : " Mihi . . . placet lex quam C. Gracchus in tribunatu promulga- 
 verit, ut ex confusis quinque classibus sorte centuriae vocarentur : ita coaequatur 
 dignitate pecunia." His object, to eliminate the influence of wealth, could be 
 achieved by determining by lot the order of voting of the five classes; or a new 
 grouping of the centuries could be substituted for the classes; but he could not 
 have proposed that the centuries should vote one by one. 
 
 8 We know that in 91 they vehemently opposed the admission of the allies; p. 
 399, 400 below; cf. Meyer, Gesch. d. Gracch. 106, n. 1. 
 
 4 Opimius, consul in 121, ordered the equites to come each with two armed 
 slaves to the support of the government; Plut. C. Gracch. 14. Sallust, lug. 42, 
 states that the senate, by holding out to the equites the hope of an alliance with the 
 aristocracy, detached them from the plebs; cf. Meyer, ibid. 106. 
 
 The lex Acilia Rubria, passed most probably in 122, seems to have had to do 
 with the participation of aliens in the worship of Jupiter Capitolinus; S. C. dc 
 Astypalaeensibus, in CIG. ii. 2485. II (cf. Bockh's comment); Lange, Rom. Alt. 
 iii. 42. It is to be connected with the rogation for granting the citizenship to the 
 allies, and probably aimed to liberalize the worship in the Sempronian spirit. 
 
 5 Cf. Greenidge, Hist, of Rome, i. 231. 
 
COMITIAL LEGISLATION, 134-82 385 
 
 ized. These results might have been achieved, had Gaius lived 
 out his natural life and retained the support of the populace and 
 the knights. 1 His failure proved the comitia a weak, unsafe 
 instrument for constructive statesmanship. 
 
 II. The Aristocratic Reaction and the Popular Recovery 
 
 122-103 
 
 The optimates waited only for the expiration of the tribunate 
 of Gaius Gracchus to begin undoing his work, and they found 
 the comitia ready to aid in the demolition. In 121 a plebiscite 
 of M. Minucius Rufus repealed the Rubrian law for the colo- 
 nization of Junonia (Carthage). 2 Soon afterward, certainly not 
 later than 1 1 8, a plebiscite, whose author is unknown, permitted 
 the beneficiaries of the Sempronian agrarian laws to sell the 
 lots they had received. 8 This enactment was followed in 118 
 by a plebiscite which Appian * assigns to Spurius Borius (?), a 
 name not otherwise known. 5 It put an end to the distribu- 
 tions, and must therefore have abolished the agrarian triumvi- 
 rate. The same law confirmed all holders of the ager publicus 
 in their possession, without converting any of this land into 
 private property, and it continued the imposition of rents. We 
 may assume that the lands here referred to included those re- 
 cently distributed in small lots as well as those retained by the 
 occupiers. Lastly it enacted that the revenues accruing from 
 
 1 Dio Cassius, Frag. 85. 3, in a mutilated passage seems to refer to the great pos- 
 sibilities of a longer career. It would be unreasonable to suppose that so creative a 
 mind could rest content at any given point. 
 
 s Fest. 201. 19; Flor. ii. 3. 4 (iii. 15); Diod. xxxiv. 28 a (from Posidonius); 
 (Aurel. Vict.) Vir. III. 65. 5; Oros. v. 12. 5; Plut. C. Gracch. 13; App. B. C. i. 24. 
 105; Pun. 136; Lange, Rom. Alt. iii. 47; Greenidge, Hist, of Rome, i. 248; Momm- 
 sen, in CIL. i. p. 96. 
 
 8 App. B. C. i. 27. 121; cf. Long, Rom. Rep. i. 352; Greenidge, ibid. i. 285; 
 Ihne, Hist, of Rome, v. 4 f. 
 
 * Ibid. § 122. 
 
 6 It seems to be a mistake for Spurius Thorius (Cic. Brut. 36. 136: "Sp. Tho- 
 rius .... qui agrum publicum vitiosa et inutili lege vectigali levavit "). By inter- 
 preting this sentence " Sp. Thorius . . . who relieved the public land of a defective 
 and useless law by the imposition of a vectigal," Mommsen (in Verhdl. sacks. Gesellsch. 
 d. Wiss. 92 f.) attempts to bring Cicero into agreement with Appian. But the in- 
 terpretation is violent and is not generally accepted. The statement of Cicero applies 
 to the law of III far better than to that which Appian mentions under the name of 
 Borius. 
 
386 THE ROMAN ASSEMBLIES 
 
 the rents should be used for distributions — probably of cheap 
 grain. 1 In in another tribune, whom Cicero 2 names Sp. Tho- 
 rius, through a law which has partially survived in an inscrip- 
 tion, aimed to settle definitely and for all time in the interest 
 of the nobles the questions raised by the Sempronian agrarian 
 legislation. 
 
 I. This epigraphic lex agraria converts into private property 
 the following classes of lands. 3 
 
 (i) Land assigned to a colony or in any way made public, 
 and afterward restored to the original owners (domneis). It is 
 to be private optuma lege. 4 
 
 (2) Land assigned to a colony and afterward restored to its 
 former occupier (veteri possessori). 5 
 
 (3) Land within the legal limit (of five hundred iugera) left, 
 to the occupier by the three commissioners. 6 
 
 (4) Land assigned after 133 to colonies of Roman citizens. 7 
 
 (5) Land given and assigned by the three commissioners after 
 
 I33- 8 
 
 (6) Land which has been occupied after 133 (not assigned 
 by the commissioners) to the extent of not more than thirty 
 iugera to the occupier. 9 
 
 1 App. ibid.; Lange, Rom. Alt. ii. 688; iii. 51; Long, Rom. Rep. i. 353 f.; lime. 
 Hist, of Rome, v. 9; Greenidge, Hist, of Rome, i. 285-8. If, as Greenidge supposes, 
 the Livian colonial rogation became a law, it did not affect the vectigal imposed by 
 the Sempronian statutes (p. 383 above). 
 
 It may have been as a compensation for the repeal of this Sempronian statute and 
 of that of Rubrius that a lex of an unknown author provided in this year for the 
 establishment of the colony of Narbo Martius in Narbonensis; Veil. i. 15. 5; ii. 7. 
 8; Eutrop. iv. 23; Cic. Brut. 43. 160; Cluent. 51. 140; Font. 5. 13; Kornemann, 
 in Pauly-Wissowa, Real-Encycl. iv. 522. 
 
 2 Brut. 36. 136 (quoted p. 385, 11. 5 above); cf. Orat. ii. 70. 284; App. B. C. i. 
 27. 123; CIL. i. 200; Rudorff, in Zeitschr. f. gesch. Rechtswiss. x (1842). 1-194; 
 Mommsen, in CIL. i. p. 75 ff.; Herzog, Rom. Staatsverf. i. 478; Long, Rom. Rep. i. 
 351-86; Greenidge, Hist, of Rome, i. 288. 
 
 3 The classification here given is a close reproduction of Mommsen, in CIL. i. p. 
 87-106; cf. Verhdl. sacks. Gesellsck. d. Wiss. i. 89-101. 
 
 4 Lex Agr. 27 (cf. 4), in CIL. i. 200. 
 
 6 Ibid. 20-23. ' 6 Ibid. 2; cf. 13 f. 
 
 7 Ibid. 3, 1 5 f. The word sortito in these passages, e.g. " Illvir sortito ceivi 
 Romano dedit adsignavit," proves a reference to the founding of colonies, as viritim 
 assignations were not by lot; Mommsen, in CIL. i. p. 87. 
 
 8 Ibid. 5. 
 
 9 Ibid. 13 f. Although occupation was forbidden by the agrarian law of TL 
 
COMITIAL LEGISLATION, 134-82 387 
 
 (7) Land which by the provision of this law is to be sold, 
 granted, or restored. 1 
 
 All the lands above enumerated are declared private and free 
 from vectigal and scriptura. 2 
 
 II. The lands which the law declares public are those reserved 
 from distribution by the law of Ti. Gracchus. 3 It retains further 
 as public all lands along public roads which have been granted 
 by the commissioners on condition that the recipients (viasieis 
 vicaneis) in return for the use of the land undertake the duty of 
 keeping the roads in repair. Though heritable and alienable, 
 they remain subject to the burden here described. 4 
 
 III. In the regulation of the agrarian conditions of Africa the 
 statute deals with three kinds of land, (1) private ex iure quiri- 
 tium, 5 (2) private ex iure peregrino, 6 (3) public domain of the 
 Roman people of various sub-classes. 7 Lastly the statute aims 
 to settle the status of the lands of Corinth. 8 As regards the 
 Latins and aliens, whatever has already been permitted them 
 by treaty or law is allowed them by this statute, provided the 
 same thing is allowed a Roman citizen ; but it is forbidden 
 them if forbidden a citizen. Rights granted the citizens which 
 up to this time are not enjoyed by aliens are not by this law 
 communicated to aliens. 9 
 
 Through this series of reactionary laws, from the Minucian 
 (121) to the Thorian (m), the optimates succeeded in nullify- 
 ing the good results of the Sempronian agrarian reforms. It 
 was while the Minucian rogation 10 was under discussion that 
 the senate took advantage of a disturbance in the concilium to 
 arm the consul Opimius with absolute power for putting down 
 
 Gracchus (p. 366 above), they did take place, and are legalized by this article 
 of the law of 1 1 1, in so far as they do not exceed the specified limit. 
 
 x Lex Agr. 12 : " Eum agrum quem ex h (ace) 1 (ege) venire dari reddive oporte- 
 bit "; cf. 32. We do not know what land is meant. Perhaps Sipontia is included 
 in this category; cf. 43; Mommsen, in CIL. i. p. 89. 
 
 ''■Lex Agr. 19 f.; App. B. C. i. 27. 123; Cic. Brut. 36. 136: "Sp. Thorius . . . 
 qui agrum publicum vitiosa et inutili lege vectigali levavit " (" Sp. Thorius . . . who 
 by a mischievous and useless law freed the public land of vectigal "). 
 
 8 P. 365. * Lex Agr. 1 1-3; Mommsen, in CIL. i. p. 90. 
 
 & Lex Agr. 45, 55, 59-61, 66-9, 79, 89. 8 Ibid. 75 f., 79 U 85. 
 
 7 Mommsen, in CIL. i. p. 98 ff. 
 
 8 Lex Agr. 96. This part of the inscription is hopelessly mutilated. 
 
 9 Ibid. 29. 10 P. 385. 
 
388 THE ROMAN ASSEMBLIES 
 
 C Gracchus and his followers. 1 The failure of an attempt in 
 the following year (120) to call Opimius to account for these 
 proceedings established the right of the senate to the appoint- 
 ment of special commissions and to the decretum urtimum 8 — a 
 right on which the optimates continued to insist to the end of 
 the republic Through the plebiscite of L. Carpurnius Bestia 
 (also 120) 3 they put the stamp of legitimacy upon the murder 
 of the followers of TL Gracchus by recalling from exile P. 
 Popillius Laenas, who as consul in 132 and head of a special 
 court was chiefly responsible for that judicial crime.* An 
 attempt was made by Q. Servilius Caepio, consul in 106, to 
 restore the courts to the senate, 5 or possibly to compromise by 
 providing for an album composed of both senators and equites. 6 
 The sources imply that the measure was accepted by the comitia ; 
 but if so, it must have been immediately annulled, as it was not 
 carried into effect 7 Within this period of reaction, and per- 
 haps as a part of it, falls the lex de libertinorum suffragiis of the 
 consul M. Aemuius Scaurus, 115. Although nothing certain 
 is known of it, we may suppose that it attempted again s to re- 
 strict the Kbertini to the four city tribes. 9 About this time, too, 
 
 ip.255. S P.256£ 
 
 * Gc Brut. 34. 128; cf. Red. in Sac 15. 38; Red. cd Qaar. 4. 9; 5. II; Green- 
 idge, Hist. e/Rsme, L 279 £.; Hme, Nisi. t/Reme, t. 6 £. 
 
 4 P. 255- 
 
 6 Tac Aitm. xn. 60, confirmed by a statement of Cicero, in Ascon. 79, that senators 
 and knights first sat together as jurors under the Plautian law of 89 (p. 402 below). 
 
 • Cassiod. Ciren, 3S4 C : " Per Servifium Caepionem consulem indicia equita- 
 tions et senatoribus comraunicata '"; Obseq. 41 (101). 
 
 ' CC. farther Gc Ar. i. 49. 92; Brut. 43. 161; 44. 164; Chiact. 51. 140; Lange, 
 Rem. AU. H. 66S; Si. 67 £.; Long, Ram. Rep. n. 2 £; Greenidge, Hist, ef Rami, i. 
 477-82. Bat that the knights continued in uninterrupted possession of the courts s 
 prored by Cicero, Verr. i. 13. 3S; Pseud. Ascon. 103, 145. 
 
 sp --.- 
 
 9 (AureL Vict.) Vir. IB. 72. 5; Lange, Rem. AIL m. 53; Hereog, RSm. Steats- 
 txrf. i. 478. His lex sumptuaria of the same year, perhaps combined in one lav 
 with the provision concerning the Kbertini, limited not only the fippnse of meals 
 but also the kind of food and the mode of preparing it; PKnv, S*. H. thi. 57. 223; 
 cf. GeU. ii. 24. 12; (AureL Vict.) ibid. — Two other sumptuary laws, both of which 
 were enacted before 97, may be mentioned here. The statute of P. Licinins Crassus, 
 pretorian or tribnnirian, ex senatus consulto, perhaps 104, made some changes in 
 the lex Fannia and the lex Didia; Geu. ii. 24. 7; xt. 8; Macrob. Set. iii. 17. 7: 
 FesL ep. 54; p. 356 above. — It was repealed by the plebiscite of XL Duronius be- 
 fore 97; YaL Max. iL 9. 5; Lange, Rim. Alt. in. 71, 88. 
 
COMITIAL LEGISLATION, 134-82 389 
 
 several acts seem to have been passed for diminishing the 
 pay of soldiers, probably undoing the Sempronian law on the 
 subject. 1 
 
 A glance at these reactionary measures alone would leave the 
 impression that the senate was recovering its entire supremacy. 
 This result might have been reached had it not been on the one 
 hand for the lasting inspiration of the Gracchan spirit in the 
 plebs and their leaders, and on the other the new position of 
 the equites. In 119 C. Marius, at once a representative of 
 the knights 2 and of the peasants, opposed as tribune of the 
 plebs the senatorial aristocracy, which now had to depend for 
 immediate support upon the populace. 3 The optimates had 
 greatly impaired the value of the secret ballot through the 
 custodes tabellarum, who stood on the pontes as well as by 
 the boxes (cistae) to keep watch over the voting. They were 
 often influential men* — in elections selected by the candi- 
 dates 5 — who used their influence with the voters, especially 
 of the principium or of the prerogative century, 6 thereby main- 
 taining for the aristocrats a high degree of control over the 
 comitia in spite of the ballot laws. 7 For this reason C. Marius 
 when tribune of the plebs carried an act for making the pontes 
 narrower that there might be room on them for the voters only. 8 
 The politicians, however, soon found means of circumventing 
 
 1 Ascon. 67 (.; cf. p. 382, 392. 
 
 * The reading of the MS. of Velleius, iL 11. I ("natus equestri loco ") should not 
 be corrected to " agresti loco " to conform with Hut Mar. 3. Velleius has men- 
 tioned his equestrian birth to explain his connections with the publicans referred to 
 in the following sentence. 
 
 * The opposition of Marius to the populace is proved by his intercession against 
 a frumentarian rogation of the same year, the purport of which is not definitely 
 stated; Hut. Mar. 4, 
 
 * Cic Pis. 15. 36; Red. in Sen. 11. 28. On the pontes, see p. 469. 
 s Varro, R. R. iii. 5. 18. On the custodes, see also p. 467 below. 
 
 * Cic Pis. 5. II; Red. in Sen. 7. 17; cf. p. 466. 
 7 Cic. Leg. iit 17. 38. 
 
 > Hut. Mar. 4; Cic. ibid.; Lange, Rom. Alt. ii. 490; iii. 51; Long, Rom. Rep. 
 i. 322 f.; Greenidge, Hist, of Rome, i. 304-6. The opposition of the consuls to this 
 measure, and the consequent threat of Marius to imprison them, Ihne, Hist, of Rome, 
 v. 8, regards as a farce. This interpretation of the circumstances, however, is unnec- 
 essary for explaining the policy of Marius; as a champion of the peasants, rather 
 than of the plebs as a whole, he consistently passed his election law and opposed the 
 frumentarian bill. 
 
390 THE ROMAN ASSEMBLIES 
 
 this law as well as the use of the ballot. 1 The populares could 
 expect little therefore from the plebiscite of C. Caelius, 107, 
 which by extending the ballot to trials of perduellio, completed 
 the abolition of oral voting in the comitia. 2 
 
 We find another sign of popular recovery in the assembly's 
 resumption of the appointment of special judiciary commis- 
 sions. 3 One of the most remarkable courts of the kind was 
 that created in 113 for the trial of three Vestal virgins on a 
 charge of incest. The pontifex maximus, who possessed abso- 
 lute authority over the Vestals, had already pronounced judg- 
 ment, condemning one and acquitting the other two, when a 
 plebiscite of Sex. Peducaeus, taking the case out of his hands, 
 transferred it to a quaestio extraordinaria.* To such an extent 
 did the tribune apply the theory of popular sovereignty. 5 The 
 plebiscite of C. Mamilius, 109, ordered the appointment of a 
 court for the detection and punishment of those who had 
 accepted money from Jugurtha for aid rendered him against 
 the decrees of the senate and the interests of Rome. As it was 
 a blow aimed at the nobility, the people in the hatred they then 
 cherished against the governing class voted it with great spirit. 6 
 In 105 the tribal comitia abrogated the proconsular imperium 
 of Q. Servilius Caepio, 7 and in the following year, they not only 
 appointed a special court to try him for embezzlement of the 
 gold found at Tolosa, 8 but through the plebiscite of L. Cassius 
 Longinus, they disqualified for membership of the senate any 
 
 1 Plut. Cat. Min. 42. 
 
 2 Cic. Leg. iii. 16. 36; Oros. v. 15. 24; cf. Miinzer, in Pauly-Wissowa, Real-Encycl. 
 iv. 195 f. ; Lange, Rom. Alt. ii. 527; iii. 66. On the leges tabellariae in general, see 
 Ihne, Hist, of Rome, iv. 94, 340; Long, Rom. Rep. i. 105-10 ; Lange, ibid, see 
 indices, s. v. a P. 388. 
 
 * Cic. N. D. iii. 30. 74; Ascon. 46; Livy, ep. lxiii; Dio Cass. Frag. 87; Macrob. 
 Sat. i. 10. 5 f. A plebiscite of C. Memmius, III, de incestu (p. 377, n. 5) refers to 
 the same subject. 6 Lange, Rom. Alt. ii. 697 f. 
 
 6 Sail. lug. 40. 65; Cic. Brut. 33. 127 f.; Schol. Bob. 311. In ill a plebiscite 
 of the C. Memmius mentioned in n. 4 had commissioned L. Cassius, praetor, to bring 
 Jugurtha to Rome as a witness against those accused of having bribed him; Sail. 
 lug. 32. 
 
 7 Livy, ep. lxvii; Ascon. 78; cf. (Cic.) Hercnn. i. 14. 24, which refers to a defence 
 against the tribunes. For the earliest case of the kind, see p. 360; cf. p. 342. 
 
 8 The court was established by a plebiscite of C. Norbanus, 104 ; Dio Cass. 
 Frag. 90; Gell. iii. 9. 7; Strabo iv. 1. 13; Cic. N. D. iii. 30. 74; Bali. 11. 28; Val. 
 Max. iv. 7. 3; vi. 9. 13. 
 
COMITIAL LEGISLATION, 134-82 391 
 
 person whom the people had judicially condemned or whose 
 imperium they had abrogated. 1 These acts confirmed and 
 applied the principles underlying the deposition of Octavius 
 and the rogation of C. Gracchus concerning persons deposed 
 from office (abacti). In theory the people indirectly chose the 
 senators through their function of electing magistrates; and 
 they were only claiming this right when they insisted that he 
 should be prohibited from membership whom they had con- 
 demned in either of the two ways described by the statute. It 
 must have seemed to the people, on the other hand, that the 
 tribunes, who were once more their true representatives, had as 
 good a right as any other magistrates to seats in the senate. 
 This feeling found expression in the Atinian plebiscite, enacted 
 between 122 and 102, 2 which gave the tribunes the ius sententiae 
 dicendae in the senate with - the same right to censorial enrol- 
 ment as that enjoyed by the curule magistrates. 3 
 
 The growing strength of the people and at the same time the 
 increasing dependence of the optimates on religion for the con- 
 trol of politics are indicated by a law of 103 concerning the 
 election of sacerdotes. More than a hundred years earlier 4 was 
 instituted the custom of electing the supreme pontiff and the 
 chief curio in comitia of seventeen tribes designated by lot. 
 Toward the end of the plutocratic regime C. Licinius Crassus 
 in the interest of the people attempted in vain to pass a law 
 for extending the principle to all the members of the more 
 important sacerdotal colleges. 5 The proposal was defeated by 
 the eloquence of C. Laelius, 6 but at length it was passed as the 
 lex de sacerdotiis of Cn. Domitius, tribune of the plebs in 103. 
 The statute affected the pontifical and augural colleges, the 
 decemviri sacris faciundis, and the epulones. 7 According to the 
 
 1 Ascon. 78 : " Ut, quem populus damnasset cuive imperium abrogasset, in senatu 
 non esset." The disgraceful defeat of Caepio in Gaul and his embezzlement of the 
 treasury found at Tolosa excited the people to this line of action; cf. Herzog, Rom. 
 Staatsverf. i. 484. On the author, see Miinzer, in Pauly-Wissowa, Real-Encycl. iii. 
 
 1738.63. 
 
 2 The lex Acilia repetundarum (CVZ. i. 198. 13, 16), adopted in 122, implies that 
 they did not have the right; but they must have acquired it before 102; App. B. C. 
 i. 28. 126. 8 Ateius Capito, in Gell. xiv. 8. 2; Willems, Sen. Rom. i. 228. 
 
 * P. 341. 6 Cic. Amic. 25. 96. 
 
 « Cic. ibid.; Brut. 21. 83; N. D. iii. 2. 5; 17. 43. 7 P. 347. 
 
392 THE ROMAN ASSEMBLIES 
 
 new arrangement when a place became vacant in any one of 
 these colleges, the members of the college drew up a list of 
 eligible candidates from whom the comitia sacerdotum, com- 
 posed as above described, made a choice. 1 In spite of this law 
 religion remained a political tool of the optimates. 
 
 Meantime the popular party succeeded in enacting economic 
 laws. A Porcian statute concerning interest, which may well 
 have aimed to benefit the poor, seems to be the work of 
 M. Porcius Cato, consul in 118. The author had to defend 
 the act against several attempts to repeal it. 2 In 109 under 
 the stress of the Cimbric war the consul M. Junius Silanus 
 passed an act for repealing several earlier laws which had 
 diminished the pay of soldiers. We may reasonably believe 
 that it restored the Sempronian law on the subject. 3 His 
 immediate object was to encourage enlistments. 4 An agrarian 
 rogation was offered by L. Marcius Philipus, tribune of the 
 plebs in 104. As the author was at heart a democrat, his 
 measure was doubtless inspired with the spirit of the Gracchi. 
 Perhaps it aimed to restore their law; but lacking determina- 
 tion, the proposer readily allowed it to be voted down. 5 The 
 monetary lex Clodia, which probably belongs to the same 
 year, has no political significance. 6 
 
 III. The Appuleian Legislation and the Rule of the Moderate 
 
 Optimates 
 103-88 
 
 Through the legislative acts above described we can trace 
 the speedy restoration of the democracy and of comitial legis- 
 
 1 Cic. Leg. Agr. ii. 7. 18; Fam. viii. 4. I; Ad Brut. i. 5. 3; Phil. ii. 2. 4; xiii. 5. 
 • 12; Suet, Ner. 2; Veil. ii. 12. 3; Lange, Rom. Alt. ii. 537, 675; iii. 71; Wissowa, 
 
 Relig. u. Kult. d. Rom, 418; Long, Rom. Rep. i. 49 f.; ii. 40-2; Herzog, Rom. 
 Staatsverf. i. 484 f. 
 
 2 Priscian, Inst. Gram. p. 90 : " Cato nepos de actionibus ad populum, ne lex 
 sua abrogetur : facite vobis in mentem veniat, quirites, ex aere alieno in hac civitate 
 et in aliis omnibus propter diem atque fenus saepissimam discordiam fuisse." This 
 is the only source for the measure. 8 P. 388/ 
 
 4 Ascon. 67 f. 5 The only source is Cic. Off. ii. 21. 73. 
 
 6 Pliny, N. H. xxxiii. 3. 46; Mommsen-Blacas, Hist. d. mon. Rom, ii. 101 (for 
 date and character). 
 
COMITIAL LEGISLATION, 134-82 393 
 
 lative power after the overthrow of C. Sempronius Gracchus. 
 We are now approaching a second crisis in which the aris- 
 tocracy had to struggle for existence. Against it was formed 
 a combination of three powerful men, C. Marius, supported 
 by the knights and the municipes, 1 C. Servilius Glaucia, and 
 L. Appuleius Saturninus. It is almost certain that this Ser- 
 vilius is to be identified with the author of the lex repetundarum 
 of in or thereabout, probably a plebiscite, which repealed 
 the Acilian law on the same subject. 2 In important respects 
 his statute was an improvement on earlier regulations of the 
 crime. "Glaucia's alteration in procedure was thorough and 
 permanent. He introduced the system of the 'second hear- 
 ing' — an obligatory renewal of the trial, which rendered it 
 possible for counsel to discuss evidence which had already 
 been given, and for jurors to get a grasp of the mass of 
 scattered data which had been presented to their notice 8 — 
 and he also made it possible to recover damages, not only 
 from the chief malefactor, but from all who had dishonestly 
 shared his spoils." 4 These principles were taken up into 
 the Cornelian law which superseded it in 81. 6 The circumstance 
 that the man whom the optimates regarded as merely a vulgar 
 demagogue was the author of so statesmanlike a measure 
 ought to militate against their opinion, not only of him, but also 
 of his associates. He, too, represented the knights, 6 whereas 
 Appuleius was a champion of the rural plebs against the 
 senate and the populace. As tribune of the plebs in 103 
 the latter proposed a law for the assignment of lands in the 
 province of Africa to the retiring veterans of Marius in lots 
 of a hundred iugera each. When Baebius, a colleague, inter- 
 
 1 P. 389- 
 
 * Ascon. 21; Cic. Rab. Post. 4. 9; Bali. 23. 53; 24. 54. Cicero here informs 
 us that by a provision of this law citizenship was offered to Latins as a reward 
 for evidence in cases arising under it. This article was borrowed from the lex 
 Acilia; p. 378. See also Val. Max. viii. 1. 8; Cic. Brut. 62. 224; Greenidge, Hist, of 
 Rome, i. 309-11. Proof of the repeal of the Acilian law no later than that year is 
 the circumstance that on the reverse of the stone which contains it is inscribed 
 the agrarian law of in; Mommsen, CIL. i. p. 55 f. 
 
 8 Cic. Verr. i. 9. 26. 
 
 4 Cic. Rab. Post. 4. 8 f. The quotation is from Greenidge, Hist, of Rome, i. 310. 
 
 6 Cic. Rab. Post. 4. 9; cf. Mommsen. Rom. Slrafr. 709; Greenidge, Leg. 
 Proced. 423. 6 Cic. Brut. 62. 224. 
 
394 THE ROMAN ASSEMBLIES 
 
 ceded, the people pelted him with stones and drove him from 
 the assembly. Thus the law was violently carried, but we 
 hear nothing more of it. Probably it was not enforced. 1 This 
 act marks an epoch in the history of Roman colonization; 
 through it the government first expressed its intention to 
 provide discharged soldiers with farms, a departure made 
 necessary by the Marian policy of filling the army with capite 
 censi. 2 Either to this tribunate or more probably to his second 
 belongs the lex de maiestate (minuta), 3 the first of the kind 
 in Roman history. It defined the crime and made general 
 provisions for the prosecution of those who were accused of 
 it. 4 The same statute provided for the establishment of a 
 court which seems to have been standing rather than special. 5 
 
 In his second tribunate, ioo, supported by Marius, consul 
 a sixth time, and by Servilius, Appuleius proposed and carried 
 a law for the founding of settlements of the Marian veterans 
 in Sicily, Corsica, Achaia, and Macedonia. 6 Marius was to 
 
 1 (Aurel. Vict.) Vir. III. 73. I: "Ut gratiam Marianorum militum pararet, 
 legem tulit, ut veteranis centena agri iugera in Africa dividerentur, intercedentem 
 Baebium collegam facta per populum lapidatione submovit"; Lange, Rom. Alt. 
 iii. 76; Herzog, Rom. Staatsverf. i. 485; Klebs, in Pauly-Wissowa, Real-Encycl. 
 ii. 262. In the opinion of Mubl, App. Sat. 77 f., the colonia Mariana (p. 396 below) 
 was founded under this law. * P. 86, 89. 
 
 8 Cic. Orat. ii. 25. 107; 49. 201; N. D. iii. 30. 74. 
 
 4 As indicated by the fact that the trial of C. Norbanus in 95 took place under 
 the law; Cic. Orat. 21. 89; 25. 107; 50. 203; Off. ii. 14. 49; Val. Max. viii. 5. 2. 
 
 6 The theory that the court established by the Appuleian law was special is 
 held by Mommsen, Hist, of Rome, iii (1898). 440, u. I; Rom. Staatsr. ii. 664, n. 1; 
 Rom. Strafr. 198. Lange, Rom. Alt. iii. 76, 82, supposes that in his first tribunate 
 he established a special court and in his second by his lex maiestatis a quaestio 
 perpetua. Miihl, App. Sat. 74, also strongly favors the second. The statement of 
 Gran. Licin. xxxiii (?). 4 — "Cn. Manilius (for Manlius or Mallius; cf. CIL. i 2 . 
 p. 152 f.) ob eandem causam quam et Cepio L. Saturnini rogatione e civitate est cito 
 (for plebiscito ?) eiectus" — Lange applies to the rogation for a special court. 
 The circumstance that the trial of Norbanus took place no less than five years 
 after the enactment of the law and the general tenor of Cicero's account of that 
 trial (see 11. 4 above) point clearly to the existence of a standing court ; cf. Herzog, 
 Rom. Staatsverf. i. 485; Madvig, Rom. Staat. ii. 275; Klebs, in Pauly-Wissowa, 
 Real-Encycl. ii. 262 f.; Lengle, Suit. Verf. 23-32. 
 
 To the same tribune, either in 103 or in 100, may belong the lex Appuleia de 
 sponsu (Gaius iii. 122; p. 298, n. I above). In that case the lex Furia de sponsu 
 (Gaius iii. 121; iv. 22; cf. same page above) must belong to the first century B.C. 
 
 6 (Aurel. Vict.) Vir. III. 73. 5 : "Tribunus plebis refectus (Saturninus) Siciliam, 
 
COMITIAL LEGISLATION, 134-82 395 
 
 be a commissioner for conducting these colonies, and was 
 to have the right to enroll as citizens in each settlement a 
 specified number of aliens. 1 The object of the latter clause 
 was doubtless to provide for the Italian veterans in his 
 army. He proposed further that certain Transpadane lands 
 which the Cimbri had taken from the Gauls and which Marius 
 had recovered should be distributed among the citizens and 
 the Italians. 2 Another proposal was for the monthly sale 
 of a specified number of modii of grain to every citizen resident 
 of Rome who desired it at five-sixths of an as to the modius — 
 a merely nominal price. 3 It is not known whether the colonial, 
 agrarian, and frumentarian measures were separate enact- 
 ments or articles of one statute ; or the colonial and agrarian 
 provisions may alone have been combined. However that 
 may be, we are informed by Appian 4 that attached to the 
 agrarian measure — whether to the others also is nowhere 
 stated — was an article which provided that if the bill should 
 become a law, the senators within five days should swear to 
 uphold it, or if any senator refused to take the oath, he 
 should be expelled from the senate and should be liable to 
 a fine of twenty talents, the Greek equivalent of about five 
 hundred thousand sesterces. 6 The rural plebs, including many 
 discharged soldiers of Marius, swarmed into the comitia at 
 the call of the tribune and violently passed the law. Marius, 
 who as a consul and a knight disapproved of such illegality, 
 set for the senators the example of swearing to the law, 
 "in so far as it was a law," which left them a loophole of 
 escape from its provisions should they afterward so determine. 
 Metellus, who alone of the senators refused the oath, was 
 forced into exile and an interdict from fire and water was 
 
 Achaiam, Macedoniam novis colonis destinavit et aurum (Tolosanum), dolo an 
 scelere Caepionis partum, ad emptionem agrorum convertit." For Corsica, see 
 
 P- 396. 
 
 1 Cic. Bali. 21. 48. The MS. reads "ternos," which may be a mistake for a 
 larger number (trecenos?). 
 
 2 App. B. C. i. 29. 130, 132; Long, Rom. Rep. ii. m f.; Herzog, Rom. Staatsvcrf. 
 i. 486. 
 
 8 (Cic.) Herenn. i. 12. 21; Long, Rom. Rep. ii. 114 f.; Herzog, ibid. i. 486 f. 
 
 4 B. C. i. 29. 131; cf. Plut. Mar. 29. 
 
 6 Cf. Klebs, in Pauly-Wissowa, Rcal-Encycl. ii. 265. 
 
396 THE ROMAN ASSEMBLIES 
 
 passed against him by the tribes on the motion of Saturninus. 1 
 Soon afterward an election riot gave the senate a pretext 
 for martial law. Placed under custody, Saturninus and some 
 fellow officials were stoned to death by a mob. His measures 
 were then annulled by the senate on the ground that they had 
 been violently passed; 2 nevertheless Mariana was founded by 
 Marius in Corsica, apparently under the colonial provision. 8 
 The import of the agrarian law of Sex. Titius, tribune of the 
 plebs in 99, is unknown. 4 It may have been merely a reenact- 
 ment of the Appuleian measure. At all events before it could 
 be put into force it was annulled by the senate on the ground 
 that it had been passed by violence and against the intercession 
 of colleagues. 5 
 
 The optimates, having again triumphed over the democracy, 
 adopted a policy of moderation. Their consuls of 98, Q. Cae- 
 cilius Metellus and T. Didius, attempted by a mild statute to 
 check the most flagrant abuses of tribunician legislation, (1) the 
 combination of various dissimilar provisions in one bill (lex 
 satura) for the purpose of drawing the votes of all parties, 
 (2) the passing of bills through the assembly by surprise. Their 
 law accordingly, reviving usages once in force but recently 
 neglected, forbade such combinations 6 and ordered that the 
 
 1 App. B. C. i. 30 f.; Plut. Mar. 29; (Aurel. Vict.) Vir. III. 73; 8; Veil. ii. 
 15. 4; Val. Max. iii. 8. 4; Cic. Dom. 31. 82; Har. Resp. 19. 41; Sat. 47. 101; Leg. 
 iii. II. 26. After the downfall of Appuleius, Metellus was recalled by a plebiscite 
 of Q. Calidius, 98; Cic. Plane. 28. 69; Dom. 32. 87; Red. ad Quir. 4. 9; 5. 11; 
 Val. Max. v. 2. 7; App. B. C. i. 33. 147-9; Dio Cass. Frag. 95. 1; (Aurel. Vict.) 
 
 Vir. III. 62. 3. On this Calidius, see further Miinzer, in Pauly-Wissowa, Real- 
 Encycl. iii. 1354- 5. A fruitless attempt to recall Metellus had been made in 99 
 through the tribunician rogatio Porcia Fompeia; Oros. v. 17. 11; App. B. C. i. 
 
 33- 
 
 2 Cic. Leg. ii. 6. 14. According to Oros. v. 12. 10, P. Furius, tribune in 99, 
 secured the enactment of a law for confiscating the property of those who conspired 
 against the state. 
 
 8 Pliny, N. H. iii. 12. 80 : " Marianam a C. Mario deductam "; Seneca, Ad. Helv. 
 vii. 9; Solin. iii. 3; Mela ii. 7. 122; Mommsen, in CIL. x. p. 838, 997; Kornemann, 
 in Pauly Wissowa, Real-Encycl. iv. 522. 
 
 4 Obseq. 46 (106); Val. Max. viii. I. damn. 3; cf. Cic. Oral. ii. II. 48. 
 
 6 Cic. Leg. ii. 6. 14; 12. 31; Obseq. ibid. A criminal lex Titia, the contents of 
 which also are unknown — Auson. Epigr. 92 (89). 4 — may belong to this tribune; 
 Lange, Rom. Alt. ii. 661, 668. 
 
 6 Cic. Dom. 20. 53; Leg. iii. 4. II; 19. 43. The enactment was merely the con- 
 
COMITIAL LEGISLATION, 134-82 397 
 
 promulgation should precede the voting by at least a trinum 
 nundinum — an interval which included three market days. 1 
 Similarly in 95 their consuls, L. Licinius Crassus and Q. Mucius 
 Scaevola, aimed by an equally moderate law to check the usur- 
 pation of the citizenship on the part of aliens. It forbade pere- 
 grini to perform the functions of citizens, though it did not order 
 the innocent among them to leave Rome. 2 It provided for the 
 appointment of a special commission to discover and punish 
 usurpers of the citizenship. 3 Those found guilty were sent 
 back to their communities. 4 Though the authors were eminent 
 in justice and cherished the best intentions, their law proved to 
 be not merely useless but most pernicious to the state, 6 as it 
 helped drive the Italians to revolt. 6 
 
 The next attempt at reform proceeded from the inmost circle 
 of the aristocracy. 7 M. Livius Drusus, tribune of the plebs in 
 91, was a man of the highest nobility, wealthy, eloquent, and 
 upright at heart, the son of that Livius who had opposed C. 
 Gracchus. 8 Regarding his aims and the quality of his states- 
 manship conflicting opinions have been expressed by modern 
 scholars. The sources intimate that he wished primarily to 
 strengthen the senate by breaking away from its hide-bound 
 conservatism and undertaking various pressing reforms. His 
 agrarian measure was conceived in the Gracchan spirit but was 
 more radical. 9 Appian M states that it proposed the founding 
 of colonies voted long ago but not yet established. Reference 
 must be to the twelve colonies planned by his father. 11 It prob- 
 
 firmation of an old custom or law introduced between the Licinian-Sextian legisla- 
 tion and 122; cf. Lex Acil. 72, in CIL. i. 198. 
 
 1 Cic. Dom. 16. 41; Sest. 64. 135; Schol. Bob. 310. This, too, was a confirma- 
 tion ofan earlier usage; Dion. Hal. vii. 58. 3; x. 3. 5; Livy iii. 35. I; p. 189, 260, 
 n. I above; cf. Mommsen, Rom. Staatsr. iii. 336, 376 f. 
 
 1 Cic. Off. iii. 11. 47; cf. p. 354, 370. a Cic. Balb. 21. 48. 
 
 4 Cic Brut. 16. 63; Schol. Bob. 296. 6 Cic. Frag. A. vii. 20. 
 
 6 Ascon. 67. On the law in general, see Lange, Rom. AH. iii. 90; Long, Rom. 
 Rep. ii. 128; Herzog, Rom. Staatsvcrf. i. 490. On Caecilius and Didius, see Mfinzer, 
 in Pauly-Wissowa, Real-Encycl. iii. 1216. 95; v. 407-10. 
 
 7 Veil. ii. 13. I; Dio Cass. Frag. 96. 2; Diod. xxxvii. 10. 
 
 8 The citations of the preceding note, and Ascon. 68; Livy, ep. lxx; less clearly 
 Flor. ii. 5. I, 4 (iii. 17). 
 
 9 (Aurel. Vict) Vir. III. 66. 4 f.; CIL. vi. 1 31 2 (i. p. 279 vii). Livy, ep. lxxi, 
 merely mentions them. 10 B. C. i. 35. 156. u P. 383 above. 
 
398 THE ROMAN ASSEMBLIES 
 
 ably abolished the statute of 1 1 1 and ordered the division not 
 only of the Campanian lands, 1 but also of those public domains 
 which were held by the allied communities — in brief, of all the 
 public land remaining in Italy and Sicily ; 2 and it established a 
 board of ten for making the assignments. 3 Livy i attributes to 
 the author a f rumentarian proposal, though we are not informed 
 of its character. The aim must have been to win the support of 
 the populace for his other measures. 5 
 
 He further proposed to mix with the silver coinage an eighth 
 part of copper, 6 the proceeds of this gain to be applied perhaps 
 to the execution of his f rumentarian project. 7 There is much 
 controversy as to the intent of his judiciary reform. Appian 8 
 supposes that he wished to add three hundred knights to the 
 senate and to draw the jurors from that body thus enlarged. 
 Velleius 9 is of the opinion that his aim was to transfer the 
 iudicia to the senate ; whereas the epitomator of Livy 10 directly 
 states that he provided for making up the iudicia of senators and 
 knights in equal numbers. We may partially reconcile these 
 conflicting statements by supposing that he planned to com- 
 pose the jurors' album of six hundred senators and knights in 
 equal numbers, by which expedient he hoped to bring these two 
 hostile orders back to their former harmony, 11 while serving the 
 
 1 This may be inferred from the silence of Cicero, Leg. Agr. i. 7. 21 ; ii. 29. 81 ; 
 cf. Lange, Rom. Alt. iii. 102; Ihne, Hist, of Rome, v. 181 ; Herzog, Rom. Staatsverf. 
 i. 490. 
 
 2 App. B. C. 36. 162 f.; Flor. ii. 5. 6 (iii. 17) : "Exstat vox ipsius nihil se ad 
 largitionem ulli reliquisse nisi siquis aut caenum dividere vellet aut caelum." 
 
 8 CIL. vi. 1312 ; cf. i. p. 279. vii. A beginning was actually made of the coloniza- 
 tion; and this is all that could be indicated by the verb ivfiyero (App. B. C. i. 35. 
 156), "he was for conducting." 4 Ep. lxxi. 
 
 6 Cf. Veil. ii. 13. 2; Livy, ep. lxx f. 
 
 6 Pliny, N. H. xxxiii. 3. 46. The idea was to issue one silver-plated copper de- 
 narius to every seven silver denarii; Mommsen, Rom. Munzw. 387 (Mommsen- 
 Blacas, Hist. d. 7non. Rom, ii. 41 f., 82); Babelon, Mon. d. la rep. Rom, I. introd. p. 
 Hx. 7 Lange, Rom. Alt. ii. 674; iii. 103. 
 
 8 B. C. i. 35. 157 f. The same view seems to be held by (Aurel. Vict.) Vir. III. 
 66. 4. It is accepted by Lange, Rom. Alt. iii. 97; Greenidge, Leg. Proced. 436. 
 The objection is that a judiciary measure, as the Livian, could not have dealt prima- 
 rily with the composition of the senate; Herzog, Rom. Staatsverf. i. 489. 
 
 9 II. 13. 2. Florus, ii. 5. 4 (iii. 17), is non-committal. 
 10 LXXI; accepted by Ihne, Hist, of Rome, v. 177. 
 
 " Cf. App. B. C. i. 35. 157. 
 
COMITIAL LEGISLATION, 134-82 399 
 
 interests of the senate and ridding the state of the corrupt and 
 tyrannical rule of the knights. 1 By a special article of the ro- 
 gation a quaestio, probably perpetua, was to be appointed to in- 
 quire into the cases of bribery of jurors and to punish the guilty. 2 
 His most radical measure, introduced after opposition to his 
 other reforms began to develop, 3 was for extending the citizen- 
 ship to the Latins 4 and to all the Italians. 5 This group of pro- 
 posals, designed for the benefit of all parties, proved distasteful 
 to all. The senators found a ground for complaint in the cir- 
 cumstance that the knights would have equal power with them 
 in the courts; the knights were unwilling to surrender their 
 judicial control or to grant the franchise to the Italians ; the 
 wealthy Italians feared they might lose the public lands which 
 they still held. Only the poor among the Romans and allies 
 supported the proposal in the hope of profiting by the distribu- 
 tion of lands. 6 The agrarian, frumentarian, monetary, and ju- 
 diciary measures were combined in one statute, and passed with 
 violence 7 and contrary to the omens. 8 On these grounds and 
 furthermore because they violated the article of the Caecilian- 
 Didian statute forbidding the passing of a lex satura, they were 
 annulled by the senate. 9 Although Drusus might have inter- 
 posed his veto against this decree, he preferred rather to disre- 
 gard it, most probably on the theory that the senatorial authority 
 did not avail against the sovereign will of the people. 10 Aware 
 that his intercession would but postpone the annulment to another 
 
 1 Flor.ii. 5. 3 (iii. 17); App. B. C. i. 35. 158. 
 
 a Cic. Rab. Post. 7. 16; Cluent. 56. 153; Ihne, Hist, of Rome, v. 177 f. 
 
 8 Velleius, ii. 14. I, regards it as an afterthought, whereas Appian, B. C. i. 35. 
 155, asserting that, petitioned by the Italians for the citizenship, he had already 
 promised to grant it, intimates that this was his main object. At all events the 
 Italians expected it of him and were prepared to support him in his effort by force of 
 arms. 
 
 » (Aurel. Vict.) Vir. III. 66.4; Oros. v. 18. 2. 
 
 6 Veil. ii. 14. 1; App. B. C. i. 35. 155 f.; 36. 162; Livy, ep. lxxi; Flor. ii. 5. 6. 
 Most probably he combined this measure with his colonial rogation ; App. B. C. 
 i. 36. 6 App. B. C. i. 35 f. 
 
 7 Livy, ep. lxxi; Flor. ii. 5. 7 (iii. 17). 8 Ascon. 68. 
 
 9 Cic. Leg. ii. 6. 14; 12. 31; Dom. 16. 41; Frag. A. vii {Cornel, i. 24); Ascon. 
 68; Diod. xxxvii. 10. 3. 
 
 10 According to Diod. xxxvii. 10. 3, he declared that though he had full power to 
 prevent the decree, he would not willingly exert it; for he knew well that the wrong- 
 doers in this matter would speedily suffer merited punishment. 
 
4 oo THE ROMAN ASSEMBLIES 
 
 year, he contented himself with informing his opponents that 
 his measures were absolutely necessary for the security of the 
 state, and that those who offended against them did it at their 
 peril. He proceeded to carry his statute into immediate effect. 1 
 A plebiscite of Saufeius, a colleague, established a commission 
 of five in addition to the ten provided for by the Livian stat- 
 ute; and Livius was elected a member of both commissions. 2 
 After his murder the Livian and Saufeian statutes were both 
 considered null and void. 3 
 
 The lex Remmia de calumniatoribus, which was enacted 
 before 80, may belong to the year of the Livian attempt at 
 reform, 91 ; * and in that case it would be most natural to 
 regard it as a piece of counter legislation to offset the proposal 
 for establishing a court for the trial of jurors accused of bribery. 
 The complainant who was proved malicious it rendered liable to. 
 trial and punishment with the loss of citizenship and the brand- 
 ing of his forehead with the letter K (for Kalumniator). 5 This 
 we may believe was the defiance offered by the knights to those 
 who were attempting to bring them to account for their conduct 
 as judges. Exulting in their victory over Drusus, they expressed 
 their antipathy to the Italian movement in a lex de maiestate of 
 Q. Varius, tribune of the plebs in 90. They stood round the: 
 Rostra with drawn daggers and forced it through the comitia 
 in spite of tribunician intercession. It supplanted the Appu- 
 leian law on the subject by a severe provision against those 
 who encouraged the Italians to demand the citizenship or in 
 
 1 Cf. the elogium, n. below. 
 
 2 Elogium, in CIL. vi. 1312 = 1. p. 279. vii: *'M. Livius M.F.C. N. Drusus, Pon- 
 tifex, tr. mil. X. vir. stlit. iudic. tr. pi. X. vir. a. d. a. lege sua et eodem anno V. vir. a.- 
 d. a. lege Saufe(i)a, in magistratu occisus est." 
 
 3 On M. Livius Drusus, see Lange, Rom. Alt. iii. 96-106; Long, Rom. Rep. II- 
 ch. xiii; Herzog, Rom. Staatsverf. i. 488-93; Ihne, Hist, of Rome, V. ch. xiii; 
 Mommsen, Hist, of Rome, bk. IV. ch. vi; Neumann, Gesch. Roms, i. 451-74; Fer- 
 rero, Rome, i. 79 f. 
 
 * (Aurel. Vict.) Vir. III. 66. 2; Cic. Rose. Am. 19. 55; Schol. Gronov. 431;: 
 Ascon. 30; Dig. xxii. 5. 13; xlviii. 16. 3. 2; Lange, Rom. Alt. ii. 665; iii. 101; 
 Mommsen, Rom. Stra.fr. 491, 494. Hitzig, in Pauly-Wissowa, Real-Encyd. iii. 1416, 
 places it earlier. 
 
 6 Cic. Rose. Am. 20.57; Pliny, Pancg. 35; Seneca, De Ira, iii. 3. 6; Mommsen, 
 Rom. Strafr. 495. It is almost certain that the punishment mentioned was pre- 
 scribed by this law; Hitzig, ibid. 
 
COMITIAL LEGISLATION, 134-82 401 
 
 any way to conspire or to revolt against the Roman people. 
 It must have contained an article, too, concerning seditions. 1 
 The court which it established was to sit on all ordinary dies 
 fasti, undisturbed by iustitia, 2 and was to be a quaestio per- 
 petua. 3 Now that two attempts, the Appuleian and the Livian, 
 to substitute more popular measures for the Sempronian fru- 
 mentarian law had failed, the optimates found themselves strong 
 enough to supersede the Sempronian act by one less popular. 
 This was the Octavian law, 4 the contents of which are unknown, 
 but which received the praise of Cicero for its moderation. 5 
 
 The Social War, following close upon the murder of Livius 
 Drusus, compelled the Romans to grant the citizenship to the 
 Italians. This result was brought about by a succession of 
 statutes. A law of the consul L. Julius Caesar, 90, bestowed 
 the citizenship upon the Latins 6 and on all the Italians who had 
 not taken arms against Rome 7 and who were willing to accept 
 the gift. 8 The same statute probably regulated the assignment 
 
 1 This conclusion is deduced from the circumstance that Varius was tried under 
 his own law. The charge could not possibly have been that of favoring the Italians, 
 but must rather have been the instigation of the sedition by which his statute was 
 originally carried; Lengle, Sull. Verf. 35. 
 
 2 Cic. Brut. 89. 304 : " Exercebatur una lege iudicium Varia, ceteris propter 
 bellum intermissis." 
 
 * This is an inference from the fact that the court which tried Cn. Pompeius 
 Strabo in 88, and which sat under the Varian law, was composed in accordance with 
 the subsequent Flautian judiciary law (Cic. Frag. A. vii. Cornel, i. 53). A special 
 court was composed in no other way than by the law which established it. In 
 general on the Varian law, see Ascon. 21 f., 73, 79; Val. Max. viii. 6. 4; App. 
 B. C. i. 37; Cic. Tusc. ii. 24. 57. From Appian we learn that the law was passed 
 before the outbreak of the Social War, and Cicero, Brut. 89. 305, informs us that the 
 prosecutions under it continued through the war. The last trial mentioned is that 
 of Cn. Pompeius Strabo in 88, referred to above. See also Lange, Rom. Alt. iii. 108; 
 Herzog, Rom. Staatsverf. i. 493; Mommsen, Rom. Strafr. 198; Long, Rom. Rep. ii. 
 164 f.; Greenidge, Leg. Proced. 384 f.; lhne, Jfist. of Rome, v. 1 88 f.; and especially 
 Lengle, Sull. Verf. 32-6, where further sources are cited. 
 
 * Cic. Brut. 62. 222. It belongs to about 90; Lange, Rom. Alt. ii. 693. 
 
 6 Off. ii. 21. 72. It is an interesting fact that, as this passage shows, Cicero did 
 not object to frumentarian laws on principle, but condemned the Sempronian act 
 because it was burdensome to the treasury. 6 Gell. iv. 4. 3. 
 
 7 Veil. ii. 16. 4; cf. App. B. C. i. 49. 212 (who speaks merely of a senatus con- 
 sultum). This statute seems to have considered the Po the northern boundary of 
 Italy; Sail. Hist. i. 20. 
 
 8 Cic. Bali. 8. 21 : " Ipsa Iulia lege civitas ita est sociis et Latinis data, ut, qui 
 
 2D 
 
402 THE ROMAN ASSEMBLIES 
 
 of these new citizens to the tribes. 1 In the following year a law 
 of L. Calpurnius Piso, probably a tribune, granted the command- 
 ing general power, apparently absolute, to bestow the right of 
 the city upon the soldiers under his orders. 2 Another statute of 
 89, carried by M. Plautius Silvan us and C. Papirius Carbo, trib- 
 unes of the plebs, granted the citizenship to all members of allied 
 communities who were domiciled in Italy at the time the statute 
 was passed and who within sixty days should signify to the 
 praetor at Rome their willingness to accept the offer. 3 The 
 object of this measure was not only to expedite the reconcilia- 
 tion, but also to make the work of the next censors practicable. 
 The citizenship thus granted involved the right of suffrage, 
 though in new tribes which voted after the others. Many 
 Italians, especially the Lucanians and the Samnites, took no 
 notice of the offer. 4 In the same year Cn. Pompeius Strabo, a 
 consul, proposed and carried a law which seems to have em- 
 powered himself at his discretion to invest with full citizenship 
 those Transpadani who already enjoyed the Latin rights, and 
 to confer upon the rest the ius Latii. 6 
 
 The question as to the composition of the courts, still left 
 unsettled, was taken up by M. Plautius Silvanus, the tribune 
 referred to above. His statute transferred the filling of the 
 album from the urban praetor to the tribes, which were to 
 elect each fifteen members. The law made the qualifications 
 of the iudices independent of the social classes. Under it 
 accordingly senators and a few common plebeians in addition to 
 equites served as jurors, so that the equestrian control of the 
 courts was partially checked. 6 
 
 fundi populi facti non essent, civitatem non haberent." On fundus see Fest. ep. 89. 
 Heraclea and Naples declined the citizenship; Cic. ibid. ! P. 57 f. 
 
 2 Cic. Arch. 10. 26; Balt.S.ig; 14.32; 22.50; Fam. xiii. 36; Sisenna, Frag. 17, 
 in Peter, Hist. Rom. Reliq. i. 280; Frag. 120, ibid. 293: " Milites, ut lex Calpurnia 
 concesserat, virtutis ergo civitate donari"; cf. Kiene, Rom. Bundesgenossenkrieg, 
 224 f., 229 f. The identity of the author is uncertain; he may be the Calpurnius 
 who was praetor in 74; Miinzer, in Pauly-Wissowa, Real-Encycl. iii. 1395. 98. 
 
 8 Cic. Arch. 4. 7 : Schol. Bob. 353. * Dio Cass. Frag. 102. 7. 
 
 6 Dio Cass, xxxvii. 9. 3; Ascon. p. 3; Pliny, N. H. iii. 20. 138; Lange, Rom. Alt. 
 iii. 118; cf. however Herzog, Rom. Staatsverf. i. 497 f. 
 
 6 Cic. Frag. A. vii. 53; Ascon. 79; Lange, Rom. Alt. ii. 539,668 f.; iii. 115; 
 Herzog, Rom. Staatsverf. i. 499; Greenidge, Leg. Proced. 385; Long, Rom. Rep. ii. 
 
COMITIAL LEGISLATION, 134-82 403 
 
 Mommsen 1 supposes that these jurors were for the quaestio 
 de maiestate only. For this opinion he depends upon the asser- 
 tion of Cicero 2 that the equites remained till Sulla's legislation 
 in uninterrupted possession of the courts. The authority of 
 Cicero, however, would allow us to assume that while the equites 
 lost the legal monopoly they retained practical control. How- 
 ever that may be, it is hardly possible that this reactionary 
 measure survived the proletarian uprising under Marius and 
 Cinna. The lex agraria of the same Plautius seems to have 
 been intended for supplying the veterans of the Social War 
 with farms. 3 The lex Papiria, which introduced the semiuncial 
 as, is doubtless to be assigned to C. Papirius Carbo, the col- 
 league of Plautius above mentioned. If so, the object was to 
 relieve slightly the financial embarrassment caused by the war, 
 and more particularly to bring the small coins of Rome into 
 correspondence with those of Italy. 4 
 
 IV. The Political Equalization of Italy 
 
 88-83 
 
 With many Italians still in revolt and the others smarting 
 under the inferior citizenship eked out to them, and with Mith- 
 ridates threatening the existence of the empire, Rome should 
 have adopted a policy of domestic conciliation. Under these 
 circumstances Sulla, consul in 88, showed a lamentable want of 
 tact in expressing the sentiment that there could be no peace in 
 Italy as long as a single Samnite lived 6 — a curiously antiquated 
 frame of mind for a statesman of his shrewdness. The cause 
 of the new citizens was taken up by P. Sulpicius Rufus, a pa- 
 trician who had forsaken his rank to qualify himself for the 
 plebeian tribunate. 6 A man of marvellous eloquence, he had 
 
 213 f. We may connect with this change the prosecution and condemnation of Q. 
 Varius; p. 401, n. I above; Ihne, Hist, of Rome, v. 224 f. 
 
 1 Rom. Strafr. 198, it. I, followed by Greenidge, Leg. Proced. 386. A difficulty 
 with this interpretation is the great number of jurors provided for, apparently enough 
 to supply all the courts. 
 
 2 Verr. i. 13. 38. 8 Cic. Att. i. 18. 6. 
 
 * Pliny, N. H. xxxiii. 3. 46; Kubitschek, in Pauly-Wissowa, Real-Encycl. ii. 1512; 
 Gardner, in Smith, Diet. i. 206; Babelon, Monn. de la rep. Rom. i. 74 f. 
 
 6 Strabov. 4. 11. 6 P. 162. 
 
4.04 THE ROMAN ASSEMBLIES 
 
 been an adherent of Drusus, though more inclined to the eques- 
 trian interests. As tribune of the plebs, 88, he seems to have 
 tried to win the support of the senate and of the equestrian order 
 to his policy ; but failing in the attempt, he looked for aid to the 
 commons and to a small band of knights who were faithful to 
 him. His rogation contained the following articles: (i) that 
 the new citizens and the libertini should be distributed among all 
 the tribes, 1 with a view to completing the plan of Livius Dru- 
 sus for the political equalization of Italy ; (2) that those who 
 had been driven from the state by violence should be recalled. 2 
 This article was probably for the benefit of those knights against 
 whom the Varian law had been turned. 3 His rogation provided 
 further, (3) that no one who owed more than two thousand denarii 
 should be a senator. 4 Money was scarce because of the war ; 6 and 
 Sulpicius must have felt that if the senators, most of whom were 
 abundantly able, should pay their debts, it would go far toward 
 relieving the stringency, and that if any were ejected because 
 of failure to pay, an opportunity would be afforded of promot- 
 ing equites to the vacant places. The consuls of the year, L. 
 Cornelius Sulla and Q. Pompeius Rufus, attempted to prevent a 
 vote on these radical measures by interposing a cessation of 
 business for many days through the proclamation of a festival. 6 
 With his armed followers Sulpicius forced the consuls to recall 
 the proclamation, whereupon Sulla fled for safety to his army 
 at Nola. Sulpicius then added to his statute a fourth article to 
 the effect that the imperium of Sulla should be abrogated and 
 that the province of Asia, involving the conduct of the war 
 against Mithridates, should be given to Marius as proconsul, 7 
 
 1 Livy, ep. lxxvii; App. B. C. i. 55. 242 f.; Veil. ii. 18. 6 ; Ascon. 64; Frohlich, 
 in Pauly-Wissowa, Real-Encycl. iv. 1532. The libertini may have been those who 
 fought in the recent war; App. B. C. i. 49. 212; Macrob. Sat. i. 11. 32. 
 
 2 (Cic.) Herenn. ii. 28. 45; Livy, ep. lxxvii; Lange, Rom. Alt. hi. 123; Herzog, 
 Rom. Staatsverf. i. 501. 3 P. 400 f. 
 
 4 Plut. Sull. 8. 6 p, 403 a bove; also Ferrero, Rome, i. 84. 
 
 6 In this way a justitium, cessation of civil business, was indirectly brought about ; 
 Plut. Sull. 8; Mar. 35; App. B. C. i. 55. 244; p. 141 above; Long, Rom. Rep. ii. 
 221; Neumann, Gesch. Roms, i. 513; Frohlich, in Pauly-Wissowa, Real-Encycl. iv. 
 ^SZZi Mommsen, Rom. Slaalsr. i. 263, n. 6. 
 
 7 For the abrogation of Sulla's imperium Veil. ii. 18. 6 is authority. Plutarch, 
 Sull. 8, states that Pompeius, not Sulla, was deprived of the consulship and that 
 from Sulla was taken merely the provincial command. Appian, B. C. i. 56. 249 (cf. 
 
COMITIAL LEGISLATION, 134-82 405 
 
 although the latter was now but a private citizen. Doubtless 
 Sulpicius understood that there could be no guarantee for the 
 execution of his statute as long as Sulla remained in power, and 
 furthermore that the advancement of Marius would be a great 
 gain for the knights. The bill was passed by the comitia of 
 tribes ; but Sulla, far from delivering up his command, marched 
 his army into Rome to settle the question in his own interest by 
 the sword. On his initiative Sulpicius, Marius, and ten of their 
 associates were declared public enemies by a decree of the sen- 
 ate ratified by a popular vote. 1 There is no need of assuming 
 that the supporters of the tribune turned against him ; the opti- 
 mates were as clever as their opponents at packing assemblies. 
 The absurdity of continuing the worn-out comitial machinery as 
 a factor of government is nowhere more apparent than on this 
 page of history, which records that the comitia a few days after 
 adopting the measures of Sulpicius, voted to outlaw him and his 
 friends. Marius fled; Sulpicius and several adherents were 
 killed. Thereupon the senate annulled the entire Sulpician 
 statute on the ground that it had been violently passed. 2 
 
 No statesman, however opposed to popular government, could 
 think of abolishing the comitia or even of putting an end to 
 their legislative function. But the democracy could be effectu- 
 
 Plut. Mar. 35; Schol. Gronov. 410) speaks only of the transfer of the command. 
 That the fourth article was added after the departure of Sulla from Rome, and that 
 the latter knew nothing of it till summoned to deliver up his command is clearly 
 stated by Appian, ibid. ch. 56 f.; cf. Frohlich, in Pauly-Wissowa, Real-Encycl. iv. 
 
 1533 f- 
 
 1 Plutarch, Sull. 8 and Livy, ep. lxxvii, speak of a decree of the senate only, 
 whereas the account of Appian, 3. C. i. 60. 271 (Jlotepdovs 'Pa/talav tyiiQiaro 
 elrai) implies a vote of the assembly. Velleius, ii. 19. 1 (" Lege lata exules fecit ") 
 distinctly mentions a comitial act, though he is wrong in supposing it to be a sen- 
 tence of exile, as may be gathered from his context ; cf. Ihne, Hist, of Rome, v. 237. 
 
 2 App. B. C. i. 59. 268; Cic. Phil. viii. 2. 7. Scholars are at variance as regards 
 the character and motives of Sulpicius. Herzog, Rom. Staatsverf. i. 501 (cf. Fer- 
 rero, Rome, i. 85 f.) , can see in his measures no earnest purpose of reform. Ihne, Hist, of 
 Rome, v. 225 f., 233 f., hesitatingly inclines to regard him as a demagogue. Frohlich, 
 in Pauly-Wissowa, Real-Encycl. iv. 1532, looks upon him as a statesman with a mind 
 and heart for the best interests of his country. In the opinion of Mommsen, Hist, of 
 Rome, iii. (1898). 531 f., he was essentially the successor of Drusus, a reformer in the 
 interest of the senate, yet led by the force of circumstances to adopt revolutionary 
 methods. Cf. also Lange, Rom. Alt. iii. 1 2 1-5; Long, Rom. Rep. II. ch. xvii; Neu- 
 mann, Gesch. Roms, i. 507-17. 
 
4 o6 THE ROMAN ASSEMBLIES 
 
 ally checked by reducing the legislative power of the assemblies 
 to the harmless function of ratifying decrees of the senate. 
 This result Sulla and Pompeius aimed to reach by renewing an 
 ancient law 1 that no measure should ever again be brought 
 before the people which had not been previously considered 
 and agreed to by the senate. 2 A closely related law of the same 
 consuls ordered that " the voting should not be by tribes but by 
 centuries, as King Tullius had ordained." 3 This statement has 
 often been interpreted to signify the restoration of the earlier 
 form of comitia centuriata. But it seems most improbable that, 
 on the point of setting out for a long, distant war, Sulla should 
 think of restoring an organization which had been obsolete for 
 more than a century and a half, and which could have been 
 known to none but antiquarians. With his clear, practical in- 
 telligence he could not have failed to see the insuperable diffi- 
 culty of restoring the ancient definitions of the classes in terms 
 of iugera or even on the later basis of the libral as.* Further- 
 more no censors were then at hand to undertake the work, and 
 it was altogether unlikely that during his absence any could be 
 elected who would be willing to apply themselves to the revi- 
 talization of the antique mummy. Such a measure, too, as 
 Meyer 6 has pointed out, would place the control of the assem- 
 bly in the hands, not of the senate, but of the knights, his 
 mortal enemies. It is far more reasonable to suppose that this 
 act transferred the function of ratifying laws from the tribal to 
 the centuriate comitia, to restore the arrangement supposed to 
 have been introduced by Servius Tullius. 6 If this reasoning is 
 
 1 P- 277> 313 f- 
 
 2 App. B. C. i. 59. 266: Ei(r7)7oBn-5 re iniSkv (n &irpof}ot\evrov is rbv Sij/wv iffipi- 
 peaOai, vevofuff/xivov /i£j> o'vru ko.1 ird\cu, irapa\e\vii{pov 5' in iroXXoO. 
 
 8 Ibid. : E&nj7o5n-o . . . ko.1 t&s x el P 0T <"'^ as P^l «*t4 $v\ds, dXX& kotoi \6xovs, 
 ws TiJXXios /3a<riXei>s £Ta£e yiveadai. 
 
 4 P. 86. 5 i n Hermes, xxxiii (1898). 652. 
 
 6 This view is held by Sunden, De trib. pot. imm. (1897) 21 ff.; Meyer, ibid. 
 652-4; Vassis,inyiMe»3,xii (1900). 54-7. Frohlich, in Pauly-Wissowa, Real-Encycl. 
 iv - J 537> supposes that elections simply were thereby transferred to the comitia cen- 
 turiata ; but the word x^ l P 0T0V ^ al use ^ by Appian, though often denoting elections 
 (as in B. C. i. 14. 58-60; 15. 66; 28. 127, where the meaning is easily derived from 
 the context), includes also voting on laws, as in B. C. i. 23. 100 ; 55. 244. Had he 
 meant elections, he would here have written dpxotpeo-ta (cf. i. 1 . 1 ; 44. 196), as other- 
 wise the meaning would have been doubtful. The view represented by Frohlich, 
 
COMITIAL LEGISLATION, 134-82 407 
 
 correct, the act under consideration totally abolished the legis- 
 lative initiative of the tribunes. 1 The other Cornelian-Pompeian 
 law mentioned by Appian must have applied, accordingly, not 
 to the tribunate but to the other magistracies. 2 The current 
 interpretation, which involves the theory of a return to the origi- 
 nal centuriate system, requires further examination. Its chief 
 basis is the statement of Appian that no law should be brought 
 before the 7r\?j0o? which had not been previously considered in 
 the senate. It is commonly assumed that he uses Stj/iof to des- 
 ignate the whole citizen body, and irXfjffos the exclusively ple- 
 beian assembly under tribunician presidency. A study of his 
 usage, however, proves that he makes no such discrimination. 
 Arjfios is ordinarily the people in general, especially as distin- 
 guished from the /SouXtj, 3 parallel to Livy's common distinc- 
 tion between plebs and senatus. It is the technical term for 
 the plebs in their tribal comitia under tribunician presidency. 4 
 Rarely it signifies the state 5 with reference to the interest of the 
 
 moreover, would in no way explain the passage, nor was it likely that Sulla would 
 leave to the tribes the ratification of laws but deprive them of the politically unim- 
 portant right to elect minor officials. 
 
 1 Appian's words iroXXci re &\\a rijs run Byn&pxon' &PXV* • • • irepteXiwej (i. 59. 
 267) imply an extensive curtailment of the tribunician power not definitely specified. 
 The statement of Livy, ep. lxxxix, that Sulla afterward (82) deprived the tribunes of 
 all legislative power (p. 413 below) is not true of his dictatorial law-giving, but be- 
 longs properly to the year under consideration. 
 
 2 Lengle (Sull. Verf. 10) argues, on the contrary, that the measure could be 
 intended for the tribunes only, because, as he supposes, a patrician magistrate always 
 consulted the senate concerning his legislative proposals. But Lengle has reckoned 
 without the facts. An examination of the sources will show that from the time of 
 the dictator Publilius Philo (Livy viii. 12. 14) to the time of the dictator Julius 
 Caesar (Dio Cass, xxxviii. 3 f.; Plut. Cats. 14; App. B. C. ii. 10) patrician magis- 
 trates occasionally brought rogations before the comitia without the senatorial sanc- 
 tion. But it is possible that in speaking of " an ancient law long disused " (p. 406, 
 n. 2) Appian may wrongly have had in mind the pre-Hortensian restriction on the 
 plebiscite; p. 277, n. 4. 
 
 3 B. C. i. 1. 1,2, 3; 19. 81; 20. 83; 22. 91; 29. 132 (city people); 30. 136; 
 32. 143; 33. 147; 35. 155; 36. 162; 38. 169; 100. 469. AtiiiSrat always means 
 plebeians; i. 24. 106; 25. 109; 33. 146; 100. 469. Sometimes Stj/u>s is exactly 
 equivalent to 7rX^8os, multitude, as in i. 26. 119. 
 
 'ACi.i2.51j '3-5S; 20.83; 21.90; 22.92; 23.101; 25.107; 28.128; 
 29. 131. 
 
 6 B. C. i. 27. 122. In 33. 148 it applies to the judicial contio preliminary to 
 the comitia centuriata. 
 
4 o8 THE ROMAN ASSEMBLIES 
 
 people. IlXfjOoi, on the other hand, ordinarily denotes the 
 masses, multitude, rabble, 1 including the crowd gathered not 
 only in a tribunician assembly 2 but also in the eKKXrjcria (here 
 meaning contio) under the presidency of a patrician magis- 
 trate. 3 But TrXrjdos is never technically or officially used to 
 denote any assembly either of the populus or of the plebs. In 
 the passage under discussion Appian's statement of the Cor- 
 nelian-Pompeian law is ela-qyovvro re firjSev cti cnrpo/3ov\evTov e? 
 rov Brj/Jiov ia-^e'pea-ffai, in which he uses S^/xo? according to his 
 custom to designate the popular assembly without specifying 
 whether it is of the populus or of the plebs. In commenting 
 on it he substitutes 7r\?}0o? for Bfj/iov for the purpose, not of 
 defining the assembly as tribunician, but of contrasting the 
 masses in the assembly with the nobles in the senate : e? to 
 TrXrjdos is substantially equivalent to iv rols irevrjai ical 6paavrd- 
 tok used just below ; Sulla wished nothing to be submitted to 
 the masses in the comitia centuriata before it had been consid- 
 ered by the senate. 
 
 , Appian 4 attributes to Sulla for this early date an attempt to 
 increase the number of senators. "They (the consuls) en- 
 rolled three hundred nobles in the senate, which had been 
 reduced in numbers and for that reason had come to be de- 
 spised." He does not state, however, by what authority the 
 consuls made this extraordinary adlectio ; and it is in fact im- 
 probable that the senate had so dwindled. However that may 
 be, the increase did not take permanent effect at this time. 5 
 Two other laws of these consuls are briefly mentioned : (i) for 
 planting colonies, 6 of which nothing is known ; (2) a lex 
 unciafia. 7 The latter may have been a reduction of existing 
 debts by one-twelfth of the principle, or a lowering of the maxi- 
 mal rate of interest to 8^ per cent ; 8 or it may have been a gen- 
 eral insolvency law, providing for the payment of debts in in- 
 stalments. 9 The chief value of these measures, even if we knew 
 
 1 B. C i. 13. 56; 25. 112; 32. 143; 54. 236; 104. 485. 
 
 2 B. C. i. 12. 49 ; 32. 141. 8 B. C. i. 101. 472. 
 
 4 B. C. i. 59. 267. 6 Willems, Sen. Bom. i. 402 f. 
 
 6 Livy, ep. Ixxvii. 1 Fest. 375. 7. 
 
 8 Cf. the law of 357; p. 297. See also Lange, Bom. Alt. iii. 126 f.; Herzog, 
 Bom. Staatsvcrf. i. 502; Frohlich, in Pauly-Wissowa, Rcal-Encycl. iv. 1537. 
 
 9 Billeter, Gesch. d. Zinsfusses, 155-7. 
 
COMITIAL LEGISLATION, 134-82 409 
 
 them in detail, would be to reveal the idea of their authors ; for 
 they were all repealed in the following year on the initiative 
 of the consul L. Cornelius Cinna, probably by a comitial 
 vote. 1 
 
 Cinna then proposed (1) a renewal of the Sulpician plebiscite 
 for the enrolment of the new citizens and the libertini among all 
 the tribes, 2 (2) a recall of Marius and the other exiles. 3 Before 
 these measures could be carried, the consul was driven from 
 Rome and deposed from office by an act of the senate on the 
 motion of Cn. Octavius, the other consul. 4 This is the only 
 certain instance of the abrogation of the civil imperium known 
 to the history of the republic. Cinna returned at the head of 
 an army ; and after taking forcible possession of the city, he 
 carried his law concerning the exiles through the assembly either 
 on his own motion or that of a tribune. 8 As the senate, reversing 
 its earlier action, 6 had already legalized the Sulpician provision 
 concerning the distribution of the libertini and the new citi- 
 zens among the thirty-five tribes, 7 it was without reenactment 
 carried into effect in 84.* The execution of this measure com- 
 pleted the political unification of Italy. Meantime L. Valerius 
 Flaccus, consul suffectus in 86, to relieve the financial distress, 
 passed a law which compelled creditors to satisfy themselves 
 
 1 App. B. C. i. 73. 339. No mention is here made of the manner of repeal, but 
 we may infer a comitial act from the public policy of Cinna. It seems probable that 
 at this time, or after his return from exile, the Flautian judiciary law of 89 was also 
 repealed; p. 402. 
 
 2 Cic. Phil. viii. (3.) 7; Veil. ii. 20. 2 f.; Schol. Gronov. 410; Jul. Exuper. 4; 
 App. B. C. i. 64. 287; Mommsen, Rom. Staatsr. iii. 180, 439; Miinzer, in Pauly- 
 Wissowa, Real-Encycl. iv. 1283. 
 
 8 App. ibid.; Flor. ii. 9. 9 (iii. 21) ; (Aurel. Vict.) Vir. III. 69. 2. 
 4 Livy, ep. lxxix; Veil. ii. 20. 3; App. B. C. i. 65. 296; (Aurel. Vict.) Vir. III. 
 69. 2; Plut. Mar. 41. 
 
 6 Cinna is represented as the author by Veil. ii. 21. 6; Plut. Mar. 43; Dio Cass. 
 Frag. 102. 8; whereas Appian, B. C. i. 70. 324, mentions tribunes. Cf. Diod. 
 xxxviii, xxxix. 1-4; Miinzer, in Pauly-Wissowa, Real-Encycl. iv. 1285; Long, Rom. 
 Rep. ii. 244. 6 P. 4°S- 
 
 7 Livy, ep. lxxxiv: "Novis civibus senatus consult o suffragium datum est." 
 
 8 P. 58 above. Lange, Rom. Alt. iii. 141, unnecessarily assumes a consular lex 
 Papiria for the purpose. 
 
 In the year 87 the propretorian imperium of Appius Claudius Pulcher, father of 
 the famous tribune of 58, was abrogated by a lex of an unknown tribune. The 
 ground was a refusal to obey the summons of the tribune in question; Cic. Dom. 31. 
 83; Miinzer, in Pauly-Wissowa, Real-Encycl. iii. 2848 f. 
 
410 THE ROMAN ASSEMBLIES 
 
 with one-fourth of the amount due. 1 In 83 M. Junius Brutus, 
 tribune of the plebs, proposed and carried, as a milder measure 
 of relief, a law for the colonization of Capua. 2 
 
 Schulze, C. F., Volksversammlungen der Rbmer, 110-26; Peter, C-, Epo- 
 then der Verfassungsgesch. der rom. Republik, 141-65 ; Geschichte Roms, bks. 
 VI, VII. chs. i-iv ; Ihne, W., History of Rome, bk. VII. chs. ii-xix ; Researches 
 into the History of the Roman Constitution, 161 ff. ; Long, G., Decline of the 
 Roman Republic, I. ch. x-II. ch. xxiv; Lange, Rom. Altertumer, iii. 1-146, 
 and see indices s. the various laws ; Die promulgatio trinutn nundinum, die 
 lex Caecilia Didia und nochmals die lex Pupia, in Kleine Schriften, ii. 214-70 ; 
 Mommsen, Th., History of Rome, bk. iv; Rom. Staatsr. see index s. the va- 
 rious laws ; Ueber das thorische Ackergesetz, in Ber. sachs. Gesellsch. d. Wiss. 
 i (1849). 89-101; Neumann, C, Geschichte Roms, I. chs. ii-v; Ferrero, 
 Greatness and Decline of Rome, I. chs. ii-v ; Greenidge, A. H. J., History of 
 Rome, i ; The Lex Sempronia and the Banishment of Cicero, in Class. Rev. 
 vii (1893). 347 f . ; Greenidge and Clay, Sources for Roman History, 133-70 
 B.C.; Strachan-Davidson, J. L., ed. Appian, Civil Wars, bk. i, with notes; 
 Weber, M., Rom. Agrargeschichte, 151 ff. ; Dreyfus, Lois agr. sous la repub- 
 lique Rom. 77-196 ; Voigt, M., Ueber die staatsrechtliche Possessio und den 
 Ager compascuus, in Abhdl. sachs. Gesellsch. d. Wiss. x (1880). 221-72 ; Ueber 
 das rom. System der Wege im alten Italien, in Ber. sachs. Gesellsch. d. Wiss. 
 xxiv (1872). 29-90; Babelon, E., Monnaies de la ripublique Rom. i. 69-79; 
 Billeter, G., Geschichte des Zinsfusses im grieckisch-rom. Aliertum, 155 ff. ; 
 Fowler, W. W., Notes on Ga'ius Gracchus, in Eng. Hist. Rev. xx (1905). 209- 
 27, 417-33 ; Gaius Gracchus and the Senate, in Class. Rev. x (1896). 278-80 ; 
 Pohlmann, R., Zur Geschichte der Gracchen, in Sitzb. d. bayer. Akad. d. Wiss. 
 1907. 443-93; Oman, C, Seven Roman Statesmen, i-iv; Huschke, Ph. E., 
 Die lex Sempronia und ihr Verhdltniss zur lex Acilia repetundarum, in 
 Zeitschr.f. Rechtsgesch. v. (1866). 46-84; Rudorff, A. E., Ad legem Aciliam 
 de pecuniis repentundis latam anno ab urbe condita 631 vel 632, in Philol. u. 
 hist. Abhdl. d.k. Akad. d. Wiss. zu Berlin, 1861. 411-553 ; Kruger-Brissaud, 
 Hist. d. sources d. droit Rom. 94 f. ; Hegewisch, D. H., Geschichte der grac- 
 chischen Unruhen ; Ahren, E. A. J., Die drei Volkstribunen Ti. Gracchus, M. 
 Drusus, und P. Sulpicius ; Nitzsch, K. W., Die Gracchen und ihre nachsten 
 Vorganger, bks. iii, iv; Blasel, J., Die Motiven der Gesetzgebung des C. 
 Gracchus; Callegari, E., La legislazione di Caio Gracco; Meyer, E., Unter- 
 suchungen zur Geschichte der Gracchen, in Festschriften . . . der vereinigten 
 Friedrichs-Universitat, etc. 1894. Philos. Fak. 79-109; controverted by 
 Schwartz, E.,in Gottingische gelehrte Anzeigen, clviii (1896). 792-811 ; Hesky, 
 R., Anmerkungen zur lex Acilia repetundarum, in Wiener Studien, xxv (1903). 
 272-87 ; Brassloff, S., Beitrage zur Erlauterung der lex Acilia repetundarum, 
 
 1 Veil. ii. 23. 2; Cic. Font. 1. I; Quince. 4. 17; Sail. Cat. 33; Mommsen, Rom. 
 Miimwesen, 385; Long, Rom. Rep. ii. 25 1 ; Ferrero, Rome, i. 92. 
 1 Cic. Leg. Agr. ii. 33. 89; 34. 92; 36. 98. 
 
COMITIAL LEGISLATION, 134-82 411 
 
 ibid. xxvi. 106-17; Hagge, Einige Betnerkungen iiber die lex Servilia repe- 
 tundarum ; Muhl, F. V., De L. Appuleio Saturnino tribuno plebis ; Pappritz, 
 R., Marius und Sulla; Vassis, S., Zijrij/jaTa 'Pgi/uhko, in Athena, xii (1900). 
 54-7 (on the Cornelian-Pompeian laws of 88 concerning the assemblies) ; 
 Lengle, J., Sullanische Verfassung; articles in Pauly-Wissowa, Real-Encycl. 
 i. 426-8 : Adsignatio (Kubitschek) ; 256 : (M\) Acilius Glabrio (Klebs) ; 
 584-8 : M. Aemilius Scaurus (Klebs) ; 780-93 Ager (idem) ; ii. 261-9 : 
 Appuleius (Klebs) ; 2848 f. : Bantia (Hiilsen) ; iii. 1414-21 : Calumnia (Hit- 
 zig) ; 1441 f. : Campanus Ager (Kubitschek) ; iv. 195 f. : C. Coelius Caldus 
 (Munzer) ; 510-88 : Coloniae (Kornemann) ; v. 407-10 : T. Didius (Munzer) ; 
 articles in Daremberg et Saglio, Diet. i. 133-8 : Ager Publicus (Humbert) ; 
 1 301-21 : Colonies Romains (Lenormant) ; ii. 1346-8: Frumentariae leges 
 (Humbert). 
 
CHAPTER XVII 
 
 COMITIAL LEGISLATION 
 From Sulla to the End of the Republic, 82 to about 30 
 
 I. The Cornelian Reaction 
 82-70 
 
 In November, 82, after destroying his political enemies by 
 war and proscription, Sulla was ready to begin the work of 
 restoring the aristocratic constitution. As both consuls, Cn. 
 Papirius Carbo and C. Marius the younger, 1 were dead, and as 
 Sulla desired above all things to give his legislation a constitu- 
 tional basis, he advised the senate to appoint an interrex. The 
 choice fell on L. Valerius Flaccus, princeps senatus, a "moderate 
 in politics. Thereupon Sulla withdrew from Rome, leaving the 
 civil authorities free in appearance to act at their discretion. In 
 reality he had determined to retain control of affairs ; and ac- 
 cordingly he wrote to Valerius advising the appointment of a 
 dictator, not for a fixed time but till the general unrest should 
 be quieted. He suggested himself as a suitable person for the 
 place. Valerius obediently proposed and carried a law through 
 the comitia centuriata, (1) which made Sulla dictator rei pub- 
 licae constituendae for an indefinite time with absolute power 
 over the lives and property of the citizens, 2 (2) which legalized 
 all his past acts, both as consul and as proconsul, 8 including his 
 arrangements in Asia as well as his proscriptions and confisca- 
 tions. 4 He returned to the city, appointed Valerius his magister 
 
 1 CIL. i 2 . p. 154. 
 
 2 App. B. C. i. 3, 98 f.; Plut. Sull. 33; Veil. ii. 28. 2; Oros. v. 21. 12; Diod. 
 xxxviii, xxxix. 15; cf. Mommsen, Rom. Staatsr. ii. 703 f. The office had been dis- 
 used for a hundred and twenty years; Plut. ibid.; Veil, ibid.; CIL. i 2 . p. 23. On 
 the form of comitia, see p. 236. 
 
 8 App. B. C. i. 97. 451; Cic. Leg. Agr. iii. 2. 5. 
 
 4 Cic. Rose. Am. 43. 126; Frohlich, in Pauly-Wissowa, Real-Encycl. iv. 1556; 
 Drumann-Grobe, Gesch. Roms, ii. 404. From this Ciceronian passage it is necessary 
 
 412 
 
COMITIAL LEGISLATION, 82-30 413 
 
 equitum, 1 and took to himself twenty-four lictors in addition to 
 a less formal guard of servants and friends. 2 Without delay he 
 began the promulgation of laws, which undoubtedly he had long 
 been planning. They are here grouped according to subject, 
 with an occasional reference to their chronological relation. 
 
 First he applied himself to curbing the power of the tribu- 
 nate, an institution in which centred the strength of the democ- 
 racy. A statute for that purpose he must have felt compelled 
 to draw up and pass before the next tribunician election. In- 
 stead of renewing his earlier law, however, for absolutely 
 depriving the tribunes of initiative in legislation, 3 he enacted 
 simply that the previous consent of the senate should be 
 necessary to bills brought by them before the tribes. 4 By 
 another article of this law he limited the right of tribunes to 
 
 to infer that the Valerian law contained an article similar to the later Cornelian lex 
 de proscriptione ; p. 421 below. 
 
 1 CIL. i 2 . p. 27. 
 
 2 Livy, ep. lxxxix; App. B. C. i. 100. 465; Sail. Hist. i. 55. 2. 
 8 P. 406 f. 
 
 * Livy, ep. lxxxix: "Tribunorum plebis potestatem minuit, et omne ius legum 
 ferendarum ademit." We should infer from this statement, which is the sole author- 
 ity for the view it presents, that he absolutely deprived the tribunes of legislative in- 
 itiative, were it not that under his constitutional arrangements they actually proposed 
 laws de senatus sententia; CIL. i. 204 (year 71); Bruns, Font. iur. p. 94; Dessau, 
 Inscr. Lat. i. p. n; Lange, Rom. Alt. iii. 154; Frohlich, in Pauly-Wissowa, Real- 
 Encycl. iv. 1559; Mommsen, Rom. Slaatsr. iii. 158; Lengle, Suit. Vtrf. II; 
 Drumann-Grobe, Gesch. Roms, i. 390 f., 411. The conference between Sulla and 
 Scipio, mentioned by Cic. Phil. xii. II. 27, referred to this arrangement. Sunden, De 
 rib. pot. imm. 10 ff. (cf. Long, Rom. Rep. ii. 399 ff.), holding that Sulla abolished 
 the right of the tribunes to propose laws, refuses to accept 71 as the date of the epi- 
 graphic lex above mentioned. 
 
 It seems probable (Lange, Rom. Alt. iii. 1 75 ; Mommsen, Rom. Strafr. 654, 
 n. 2), though it is not certain (Greenidge, Leg. Proced. 424, 430 f.), that the lex 
 Plautia de vi was proposed by a tribune of 78 or 77 as the agent of Q. Lutatius 
 Catulus, proconsul; Sail. Cat. 31; Schol. Bob. 368; Cic. Cael. 29. 70; p. 424 
 below. Probably the lex Plautia which recalled from exile L. Cornelius Cinna, 
 brother-in-law of Caesar, and others who, having shared in the insurrection of Lepi- 
 dus, had gone over to Sertorius, was a plebiscite de senatus sententia of 73; Suet. 
 Caes. 5; Gell. xiii. 3. 5; Val. Max. vii. 7. 6; Dio Cass. xliv. 47. 4; Lange, Rom. Alt. 
 iii. 185; Maurembrecher, Sail. Hist. Proleg. 78; Miinzer, in Pauly-Wissowa, Real- 
 Encycl. iv. 1287. Others assign the measure to 70; cf. Long, Rom. Rep. iii. 53. 
 For other laws, see. p. 424. 
 
 The statement of Livy's epitomator concerning the lex Cornelia de tribunicia po- 
 testate would apply more accurately to the Cornelian- Pompeian law of 88; p. 406. 
 
4 i4 THE ROMAN ASSEMBLIES 
 
 address the people in contiones. 1 The range of their interces- 
 sion was also greatly limited. 2 Their function of bringing prose- 
 cutions before the people underwent restriction not only through 
 the laws affecting the quaestiones but also by special enact- 
 ment; 3 for had they retained their unlimited right to prose- 
 cute, they could at once have regained all their other power. 4 
 Little was left them but their original auxilii latio adversus 
 imperium. 5 Finally the office was made unattractive to the 
 ambitious by the provision that those who held it were thereby 
 disqualified for other magistracies. 6 By these measures the 
 most vital and powerful institution in the state was reduced to a 
 shadow without substance. 7 The return to conditions preceding 
 the Hortensian legislation, in some respects even the Decem- 
 viral legislation, was, as Frohlich 8 remarks, a backward step 
 such as finds few parallels in history. 
 
 1 From Cic. Cluent. 40. 1 10 (cf. Long, Rom. Rep. ii. 400) we should infer that under 
 the Cornelian government no tribunician contio was held; but we know that this is 
 not true. In 76 a contio was summoned by L. Sicinius, tribune of the plebs; Oral. 
 of Licinius Macer, in Sail. Hist. iii. 48. 8 : " L. Sicinius primus de potestate tribu- 
 nicia loqui ausus mussantibus vobis"; cf. Pseud. Ascon. 103; Plut. Cats. 7; Cic. 
 Brut. 60. 216 f. In 74 the tribune Quinctius held contiones; Cic. Cluent. 34. 93; 
 Sail. Hist. ibid. § 11. The oration of Licinius Macer, quoted by Sallust, Hist. iii. 
 48, is a tribunician harangue. Finally in 71 the tribune Palicanus held a contio 
 outside the city that Pompey might attend; p. 426. 
 
 2 Cic. Verr. II. i. 60. 155 : Q. Opimius was prosecuted in a finable action on the 
 ground that as tribune in 75 (Pseud. Ascon. 200) he had interceded in violation of 
 a Cornelian law, which must have fixed the fine. The statement of Caesar, B. C. i. 
 5.1; 7. 3, that Sulla left the tribunes the right of intercession proves no more than 
 that he did not wholly abolish it. Cf. further Sunden, De trib. pot. imm. 4; Dru- 
 mann-Grobe, Gesch. Roms, ii. 411, n. 10. 
 
 8 Cic. Verr. i. 13. 38 : " Sublata populi Romani in unum quemque vestrum potes- 
 tate." 
 
 4 P. 245, 266, 315. * Cic. Leg. iii. 9. 22. 
 
 6 App. B. C. i. 100.467; Ascon. 78 (repealed by Cotta); Pseud. Ascon. 200. 
 
 7 Veil. ii. 30. 4; Dion. Hal. v. 77. 5; Sail. Hist. i. 55. 23; iii. 48.3; Pseud. 
 Ascon. 102. 
 
 The following sources assume more or less definitely an abolition of the tribunicia 
 potestas; Sail. Hist. i. 55. 23; 77. 14; iii. 48. 1; Cat. 38. 1; Plut. Romp. 21; 
 Pseud. Ascon. 102. The following speak of a limitation; Caes. B. C. i. 5. 1; 7. 3 ; 
 Livy, ep. lxxxix; Dion. Hal. v. 77. 5; Veil. ii. 30. 4; Suet. Caes. 5; (Aurel. Vict.) 
 Fir. III. 75. 11; App. B. C. ii. 29. 113. Tacitus, Ann. iii. 27, is non-committal. 
 In general on the lex de tribunicia potestate, see Lange, Rom. Alt. iii. 153 f.; Froh- 
 lich, in Pauly-Wissowa, Real-Encycl. iv. 1559; Drumann-Grobe, Gesch. Roms, ii. 
 410 ff.; Lengle, Sull. Verf. 10-16; Sunden, De trib. pot. imm. 
 
 8 In Pauly-Wissowa, Real-Encycl. iv. 1559. 
 
COMITIAL LEGISLATION, 82-30 415 
 
 About a year 1 after limiting the power of the tribunes Sulla 
 proceeded to regulate the other offices through his lex de magis- 
 tratibus, 81. This statute, making use of the principle con- 
 tained in the lex Villia annalis, 2 prescribed (1) that no one could 
 be consul before he had been praetor or praetor before he had 
 been quaestor, 3 (2) that a space of two years should intervene 
 between the holding of consecutive offices.* (3) The minimal 
 age of the quaestor it fixed at thirty-seven. 6 The fortieth year 
 was therefore the age for the praetorship and the forty-third for 
 the office of consul. The aedileship, while bringing the holder 
 a positive advantage for his future career, was never an essential 
 step to a higher place. But in case this office was taken, the 
 biennial interval had to be observed. 6 The quaestorship Sulla 
 made the sole avenue to the senate, so as to dispense with the 
 revision of the list by the censors. 7 The statute of 151, forbid- 
 ding reelection to the consulship, 8 he repealed, and substituted 
 for it the article of the Genucian plebiscite of 442 s which 
 fixed an interval of ten years between the expiration of any 
 office and reelection to the same. 10 He increased the number of 
 quaestors, at this time certainly more than eight, 11 to twenty, with 
 
 1 The law concerning the quaestors was preceded by the judiciary statute (Tac. 
 Ann. xi. 22), which must have been enacted near the end of 81, for the senators 
 remained ten years (80-70) in control of the courts; Cic. Verr. i. 13. 37. 
 
 2 P. 347. The relation of this Cornelian provision to the lex Villia is not more 
 definitely known. 
 
 8 App. B. C. i. 100. 466; cf. 121. 560. 
 
 4 Cf. Mommsen, Rom. Staatsr. i. 529. 
 
 6 In the thirty-sixth year of his age Pompey was not yet qualified for the quaestor- 
 ship; Cic. Imp. Pomp. 21. 62. Cicero, who was consul in his forty-third year, states 
 that he obtained the office at the earliest legal age; Leg. Agr. ii. 2. 3. An interval 
 of two years between successive offices would place the quaestorship in the thirty- 
 seventh year; cf. Mommsen, Rom. Staatsr. i. 527, 569; Frohlich, in Pauly-Wissowa, 
 Real-Encycl. iv. 1560; but soon after Sulla it came about, probably through further 
 legislation, that the office was often filled in the thirty-first year; Mommsen, ibid. 
 570 ffi 
 
 6 Cic. Dom. 43. 112; Fam. x. 25. 2; 26. 2 f. 
 
 7 Tac. Ann. xi. 22; cf. Frohlich, ibid. iv. 1560. 
 
 " P. 348. » P. 298. 
 
 10 App. B. C. i. 100. 466; cf. Cic. Leg. iii. 3. 9; Caes. B. C. i. 32; Dio Cass. xl. 
 51. 2. 
 
 11 P- 33 2> There were probably twelve; Lange, Rom. Alt. iii. 163; Mommsen, 
 Rom. Staatsr. i. 543. 
 
416 THE ROMAN ASSEMBLIES 
 
 the object not only of supplying an administrative need but also 
 of creating the required number of senators. 1 It was necessary 
 also to raise the number of praetors from six to eight in order 
 to provide presidents for the new quaestiones perpetuae. 2 
 
 The reforms above mentioned, together with the doubling of 
 the number of senators to be considered below, naturally led to 
 the enlargement of the chief sacerdotal colleges. The augurs 
 and pontiffs were increased from nine to fifteen and the decem- 
 viri sacris faciundis were made quindecemviri. 8 Another 
 measure, which seems to have been an article of the same act, 
 repealed the Domitian lex de sacerdotiis, 4 and thus restored to 
 these colleges, and at the same time to the epulones, their right 
 of filling vacancies by cooptation, 5 leaving to the people the 
 function only of electing the head of the pontifical college from 
 among the members. 6 As the object of the first article was 
 evidently to provide places for some of the new magistrates and 
 
 1 Tac. Ann. xi. 22 : " Lege Sullae viginti creati supplendo senatui." The eighth 
 chapter of this law concerning the twenty quaestors is preserved in an inscription; 
 CIL. i. 202; Bruns, Font. Iur. p. 90; Girard, Textes, p. 64. It regulates the quali- 
 fications, appointment, and pay of the apparitores of the quaestors. An important 
 fact derived from the praescriptio is that the law was adopted in the tribal assembly. 
 Since in the case of one law the centuriate assembly is mentioned as if exceptional 
 (p. 422), we may infer that most of Sulla's enactments were tribal. On the appari- 
 tores, see Mommsen, in Rhein. Mus. N. F. vi (1846). 1-57; Rom. Staatsr. i. 332- 
 46; Habel, in Pauly-Wissowa, Real-Encycl. ii. 191-4; Keil, J., in Wiener Studien, 
 xxiv (1902). 548-51. 
 
 2 Pomponius, in Dig. i. 2. 2. 32, wrongly says to ten — a number reached by the 
 legislation of Caesar; Dio Cass. xlii. 51. 3; p. 454 below. On the relation of the 
 praetors to the courts, see p. 420. 
 
 s Livy, ep. lxxxix, who connects it closely with the increase in the number of sena- 
 tors, placing it thus among his earlier measures; (Aurel. Vict.) Vir. III. 75. n; 
 Servius, in Aen. vi. 73; cf. Tac. Ann. vi. 12; Lange, Rom. Alt. iii. 157; Frohlich, 
 in Pauly-Wissowa, Real-Encycl. iv. 1559 f.; Lengle, Suit. Verf. 1-9. That the in- 
 crease in the last-named college was due to Sulla seems certain, though it is nowhere 
 stated. It is possible, too, that the increase of the epulones from three to seven was 
 his work; Lengle, ibid. z. 4 P. 391. 
 
 6 Livy, ep. lxxxix; Dio Cass, xxxvii. 37. i; Pseud. Ascon. 102; wrongly Plut. 
 Caes. I; Serv. in Aen. vi. 73; cf. Lange, Rom. Alt. iii. 157. 
 
 6 Cic. Leg. Agr. ii. 7. 18; Lange, ibid. The Servilian agrarian rogation, 63 (p. 
 435 below), drawn up before the enactment of the Atian plebiscite of that year 
 which restored the election of sacerdotes, assumes that the comitia pontificis maximi 
 were at the time in use. Most authorities, as Wissowa, Relig. u. Kult. d. Rom. 418; 
 Drumann-Grobe, Gesck. Roms, iii. 156; Mommsen, Rom. Staatsr. ii. 30, have failed 
 to notice this important fact. 
 
COMITIAL LEGISLATION, 82-30 417 
 
 senators, 1 the cooptation doubtless immediately followed the 
 ■enactment of the law. 
 
 In increasing the number of praetors to eight 2 Sulla provided 
 that during their year of office they were to remain in the city 
 -and devote their whole time to the administration of justice. 
 After the expiration of their term they were to take upon them- 
 selves as propraetors the command of provinces. In like man- 
 ner the consuls were to remain in Italy during their term, in the 
 •ordinary course of events to give their entire attention to the 
 -affairs of peace; only after they had retired from office were 
 they expected as proconsuls to govern provinces. In brief, 
 Sulla by law established an absolute distinction between the 
 •civil magistrate and the military promagistrate. 8 The lex de 
 provinciis ordinandis 4 recognized the right of the senate to de- 
 termine which provinces should be consular and which preto- 
 rian in the way provided for by the Sempronian law on this 
 subject. 6 The Cornelian statute did not, however, any more 
 than the Sempronian, forbid the assignment of a province to a 
 promagistrate by popular vote; and it recognized the right of 
 the senate to create promagistracies. 6 But it established the 
 rule (1) that the two consuls should receive for a year of pro- 
 magisterial imperium the provinces declared to be consular; 
 and that they should either agree as to which each should take 
 or cast lots for them ; 7 (2) that the senate should annually as- 
 sign the eight retiring praetors to the remaining provinces, also 
 for a year of promagistracy. 8 The same law directed that the 
 promagistrate, who had received the imperium in legal form, 
 should retain it till his return to the city and the celebration of 
 his triumph, 9 provided he merited one. To avoid conflicts be- 
 tween retiring and incoming governors it ordained that the for- 
 mer should leave the province within thirty days after the latter 
 had entered it. 10 The law further contained the definite regu- 
 lation of the supplies and honors granted the legati by the pro- 
 
 1 P. 106, n. 10. 2 P. 416. 
 
 8 Mommsen, Rom. Staatsr. ii. 200; Frohlicb, in Pauly-Wissowa, Real-Encycl. iv. 
 ■1560. * Lange, Rom. All. iii. 164. 
 
 6 P. 381. 6 Lange, Rom. Alt. ii. 705. 
 
 7 Cic. Ram. i. 9. 25. 8 Cf. Cic. Fam. viii. 8. 8. 
 
 9 Cic. Fam. i. 9. 25. On the relation of the Cornelian legislation to the curiate 
 law, see p. 193, 199. 10 Cic. Fam. iii. 6. 3, 6. 
 
 2E 
 
4 i8 THE ROMAN ASSEMBLIES 
 
 vincials. 1 The tendency of Sulla's legislation thus far considered 
 was to weaken the civil functionaries (i) by restricting the tri- 
 bunician initiative, (2) by increasing the number of quaestors and 
 praetors, (3) by depriving the higher civil magistrates of the mili- 
 tary imperium. The last-mentioned loss was in some measure 
 an advantage to the senate but in a far higher degree to the 
 promagistrates, who from this time began to overshadow the 
 republic. 
 
 The power taken from the tribunes necessarily went to the 
 senate, to restore to it the full control of legislation which it 
 had possessed before the enactment of the Hortensian statute. 
 Under the reformed constitution it was to be supreme. As it 
 had dwindled during the recent civil war and proscription, 2 and 
 as the performance of jury service, which Sulla was restoring 
 to its members, required a large number of men, he added three 
 hundred, mostly from the equestrian rank, but including some 
 centurions and other insignificant persons who were likely to- 
 do his bidding. 3 Appian 4 states that these new senators were 
 elected by the tribes, possibly meaning the tribal comitia. 5 But 
 as that process of selection would have required an enormous- 
 length of time, it is far more probable that each tribe had the 
 privilege of choosing a definite number, perhaps nine, after the: 
 precedent of the lex Plautia iudiciaria. 6 This addition would 
 raise the number to about four hundred and fifty. As the nor- 
 mal membership from Sulla to Caesar was about six hundred, 7 
 we may assume either that, independently of the extraordinary 
 adlectio by the tribes, he made the usual censorial enrolment of 
 the recently retired magistrates, or that he left it to time to fill 
 up the senate to the desired number by the annual admission of 
 retired quaestors. 8 Henceforth it was to be recruited automat- 
 
 1 Cic. Fam. iii. 10. 6; Q. Fr. i. i. 9, 26. 
 
 2 App. B. C. i. 103. 482; Oros. v. 22. 4; Eutrop. v. 9. Willems, Sen. Rom. i- 
 404, calculates that the number was reduced to about a hundred and fifty. 
 
 3 Livy, ep. lxxxix; cf. Cic. Rose. Am. 3. 8; Dion. Hal. v. 77. 5; Sail. Cat. 37. 
 
 4 B. C. i. 100. 468. 6 Cf. Frohlich, in Pauly-Wissowa, Real-Encycl. iv. 1559^ 
 
 6 P. 402. The second view, which seems more reasonable, is held by Lange,, 
 Rom. Alt. iii. 156. 
 
 7 No authority gives this number, which however may be deduced from well- 
 known facts; Willems, Sen. Rom. i. 405 f. 
 
 8 Willems, ibid. 406 f. 
 
COMITIAL LEGISLATION, 82-30 419 
 
 ically by this process, without any action on the part of the 
 censors, who were thus deprived of the only important function 
 remaining to them. 1 Closely connected with the increase in 
 membership is the lex iudiciaria, 2 which restored the quaestiones 
 to the senators. 3 It was enacted near the end of 81, but prior 
 to the increase in the number of quaestors. 4 Before this act 
 the courts had remained under the control of the knights in 
 spite of the lex Plautia of 89, which seems not to have continued 
 long in force. 5 
 
 In the reorganization of the criminal courts (year 81) Sulla 
 passed criminal laws, in which he regulated the procedure of 
 the existing courts and created new quaestiones perpetuae. 6 
 His reform increased the number to seven, four of which 
 were concerned almost wholly with maladministration of office : 
 (1) quaestio repetundarum, extortion, 7 (2) quaestio ambitus, bri- 
 bery in elections, 8 (3) quaestio peculatus, misappropriation of pub- 
 lic funds 9 and sacrilege, 10 (4) quaestio maiestatis, injury to the 
 majesty of the Roman name, of which a private person as well 
 as a magistrate might be guilty. 11 The three following were 
 concerned with common crimes : (5) quaestio inter sicarios et 
 
 1 Frohlich, in Pauly-Wissowa, Real-Encycl. iv. 1560. 
 
 2 Lange, Rom. Alt. iii. 156. 
 
 8 Veil. ii. 32. 3; Cic. Verr. i. 13. 37 f.; Pseud. Ascon. 99, 102, 103, 145, 149, 
 161; Schol. Gronov. 384,426; Greenidge, Leg. Proced. 436 ff.; Long, Rom. Rep. 
 ii. 419 ff.; Wilmanns, in Rhein. Mus. N. F. xix (1864). 528. 
 
 4 Tac. Ann. xi. 22 : " Lege Sullae viginti creati (quaestores) supplendo senatui, 
 cui iudicia tradiderat." 5 P. 402. 6 Dig. i. 2. 2. 32. 
 
 7 Cic. Rait. Post. 4. 9. It took the place of the lex Servilia of 1 1 1 ; p. 393. 
 
 8 Schol. Bob. 361. From Plut. Mar. 5 it seems evident that a quaestio de ambitu 
 existed as early as 116; Greenidge, Leg. Proced. 422, n. 3; Lengle, Sull. Verf. 21 i., 
 who has collected the cases de ambitu anterior to Sulla; Lange, Rom. Alt. ii. 665 ; 
 Herzog, Rom. Staatsverf. i. 521 ; Lohse, De quaestionum perpetuarum origine, 
 praesidibus, consiliis. 
 
 9 Cic. Verr. i. 13. 39; II. i. 4- " U '"• 3 6 - 83; Cluent. 53. 147; cf. Mur. 20. 
 42; Lange, Rom. Alt. ii. 665; iii. 166. The trial of Pompeius Magnus in 86 for 
 misappropriation of booty by his father in 89 seems to have come before a quaestio 
 de peculatu; Cic. Brut. 64. 230; Plut. Pomp. 4; Lengle, ibid. 40 f. If this suppo- 
 sition is right, the court must have existed before Sulla. A Cornelian law on the 
 subject is not expressly mentioned but may be reasonably assumed. 
 
 10 Mommsen, Rom. Strafr. 203. 
 
 11 Cic. Pis. 21. 50; Ascon. 59; cf. Cic. Fam. iii. 11. 2; Cluent. 35. 97; Verr. II. 
 i. 5. 12. This law took the place of the lex Appuleia, probably of 100; cf. Lange, 
 Rom. Alt. iii. 165; Greenidge, Leg. Proced. 423, 507. 
 
420 THE ROMAN ASSEMBLIES 
 
 veneficos, assassination, poisoning, and arson, 1 (6) quaestio de 
 falsis, counterfeiting and falsification of testaments and other 
 forgery, 2 (7) quaestio iniuriarum, acute personal violence, house- 
 breaking, and probably defamation of character. 3 These laws 
 concerning quaestiones contained provisions for granting the 
 accused the privilege of deciding whether the vote should be 
 oral or by ballot, 4 and they directed that the order of voting 
 should be determined by lot. 8 The first of these two articles 
 aimed to make the jurors individually responsible, and the 
 second to prevent influential men from prejudicing the case by 
 giving their opinions first. 6 
 
 While the praetor urbanus and praetor peregrinus still busied 
 themselves with civil jurisdiction, the six other praetors presided 
 over these courts; but as the number was insufficient, past 
 aediles were appointed to preside as iudices quaestionis. This 
 arrangement was especially necessary for the quaestio inter 
 sicarios, overburdened as it was with a variety of crimes. 
 
 As these courts were vested with the function of trying with- 
 
 1 Cic. Cluent. 20.55; 54- M^i 55- t S I i S 6 - '54: Frag. A. ii. (Var.) 6; Mil. 4. 
 11; Tac. Ann. xiii. 44; Justin. Inst. iv. 18. 5 f.; Dig. xlviii. 8; Paul. Sent. v. 23. 
 (Girard, Textes, p. 423). 
 
 2 Cic. Verr. i. 42. 108; Paul. Sent. iv. 7; v. 25; Dig. xlviii. 10; Justin. Inst. iv. 
 18. 7; cf. Voigt, Rom. Rechtsgesch. i. 271 f. 
 
 8 Dig. iii. 3. 42. i; xlvii. 10. 5; 10. 37. 1; xlviii. 2. 12. 4; Paul. Sent. v. 4. 8; 
 Justin. Inst. iv. 4. 8; Mommsen, Rom. Strafr. 203; Greenidge, Leg. Proccd. 208, 
 423 f.; Frohlich, in Pauly-Wissowa, Real-Encycl. iv. 1561; Bruns, Font. Iur. 93. In 
 the opinion of Lange, Rom. Alt. ii. 665; iii. 166, this lex did not establish a quaestio. 
 
 * Cic. Cluent. 20. 55; 27. 75; Greenidge, Leg. Proced. 442. 
 
 6 Cic. Cluent. 28. 75. 
 
 6 Greenidge, Leg. Proced. 442. On the Cornelian courts in general, see Long, 
 Rom. Rep. ii. 420 ff.; Herzog, Rom. Staaisverf. i. 520 f.; Drumann-Grobe, Gesch. 
 Roms, ii. 413-6; Mommsen, Rom. Strafr. see index, s. Quaestio and the various 
 crimes belonging thereto; Rom. Staatsr. ii. 200 f. ; Lengle, Sull. Verf. 17-54; 
 Lohse, De quacslionum perpetuarum origine, praesidibus, consiliis ; Frohlich, in 
 Pauly-Wissowa, Real-Encycl. iv. 1561 f. 
 
 In Lange's opinion (Rom. Alt. ii. 665; iii. 166) there must have been a lex Cor- 
 nelia de adulteriis et pudicitia, for it is doubtful whether Sulla's ordinances ircpl yapwv 
 koX aw<j>potsivns could have formed part of his lex de iniuriis; Plut. Comp. Lys. et 
 Sull. 3; cf. Dig. xlviii. 5. 23. It seems to be demonstrated, however, by Voigt, in 
 Per. sacks. Gesellsch. d. Wiss. xlii (189b). 244-79, that all republican regulations of 
 this offence, including the Cornelian, were sumptuary; cf. Cuq, in Daremberg et 
 Saglio, Diet. iii. 1141. No quaestio accordingly was needed for the trial of the 
 offence. 
 
COMITIAL LEGISLATION, 82-30 421 
 
 out appeal all crimes, including those formerly brought before 
 the comitia, the result was that the people were practically, 
 though not constitutionally, deprived of their judicial power. 
 The tendency of the Cornelian legislation in this as in other 
 respects was oligarchic. 
 
 Among the statutes passed in the winter or early spring of 
 8 1 we must place the lex de proscriptione, 1 which added certain 
 regulations to those of the Valerian law for the creation of the 
 Cornelian dictatorship, 2 and which Sulla considered essential to 
 the execution of his policy and the maintenance of its results. 
 The Cornelian statute concerning proscription forbade the giv- 
 ing of relief or aid to a proscribed person; 3 it legalized the 
 previous slayings and confiscations of property, 4 and provided 
 also that the estates not only of the proscribed but also of ene- 
 mies who had fallen in battle should be sold for the benefit of 
 the treasury. 6 It excepted from the sale ten thousand of the 
 youngest and strongest slaves, who were given their freedom ; 
 and it debarred from the ius honorum the sons, grandsons, and 
 other descendants of the proscribed, 6 with a view to keeping 
 from them the means of vengeance ; and lastly, it fixed the date 
 for closing the proscriptions at June 1, 81. 7 
 
 During the winter of 82-81 Sulla gave his attention not only 
 to law-making but also to the sale of confiscated property and 
 to the regulation of Italy. The latter work was carried out by 
 -the administrative power of the dictator through the destruction 
 of the fortifications of rebellious communities, their punishment 
 by fines and extraordinary taxes, and the confiscation of some of 
 their lands, to be assigned to his discharged veterans. 8 The 
 Cornelian agrarian laws, 9 which brought about these confiscations 
 
 1 Lange, Rom. Alt. iii. 158. 2 P. 4 12 - 
 
 8 Cic. Verr. II. i. 47. 123; Pseud. Ascon. 193. 4 Suet. Caes. II. 
 
 6 Cic. Rose. Am. 43. 125 f. Though Cicero says he does not know whether the 
 law in question was the Valerian or Cornelian, he probably knew it was the latter, 
 the terms of which he states : " Ut eorum bona veneant, qui proseripti sunt, . . . 
 aut eorum, qui in adversariorum praesidiis occisi sunt." 
 
 6 Livy lxxxix; Veil. ii. 28. 4; Sail. Hist. i. 55. 6; Plut. Sull. 31; Cic. 12; 
 Dion. Hal. viii. 80. 2. 7 Cic. Rose. Am. 44. 128. 
 
 8 App. B. C. i. 96. 100; Flor. ii. 9 (iii. 21); cf. Suet. ///. Gramm. 11. 
 
 9 Livy, ep. lxxxix; App. B. C. i. 100. 470; 104. 489; Sail. Hist. i. 55. 12; Cic. 
 Mur. 24. 49: Leg. Agr. ii. 28. 78; iii. 2. 6 ff.; 3. 12; Gromat. p. 230 ff. 
 
422 THE ROMAN ASSEMBLIES 
 
 and assignments, seem to have been not acts of the comitia but 
 dictatorial orders. 1 They must have been issued from time to 
 time as occasion demanded, probably through the entire year 
 8 1. 2 The legions were kept together till after the triumph (Jan- 
 uary 27, 28 of the year 81) 3 and then disbanded, to be led off 
 gradually to their lands. Some of the municipia to which sol- 
 diers were assigned, most obstinately Volaterrae and Nola, re- 
 sisted their admission by force of arms. To punish these rebels 
 Sulla carried through the comitia centuriata his lex de civitate 
 Volaterranis adimenda, 4 which disfranchised not only Volaterrae 
 but also other rebellious municipia. 6 Those who by this act 
 were deprived of the citizenship received the so-called Latin 
 rights of Ariminum. 6 
 
 Among the regulations for the improvement of the finances, 
 which he found in bad condition, 7 was his abolition of the dis- 
 tributions of grain. 8 Whether it was effected by a lex frumen- 
 taria or a dictatorial order cannot be determined. 9 The levy of 
 taxes on Italian and transmarine communities 10 could be brought 
 about by senatus consulta, 11 as the people had nothing to do with 
 such matters. Credit had been shattered by the law of L. Vale- 
 rius Flaccus concerning debts, 86, 12 which Sulla repealed by one 
 of his own on the same subject, 8i. 18 
 
 In connection with the Circensian games which he celebrated 
 in the autumn of 81, and which in honor of Victoria were there- 
 after repeated annually from October 26 to November l, u Sulla 
 
 1 Lange, Rom. Alt. iii. 159; cf. ii. 689; Drumann-Grobe, Gesch. Roms, ii. 407 f. 
 
 2 Lange, ibid. iii. 159. 8 CIL. i 2 . p. 49. * Lange, ibid. iii. 161. 
 6 Cic. Dom. 30. 79; Sail. Hist. i. 55. 12; cf. Pseud. Ascon. 102. 
 
 6 Cic. Caecin. 35. 102. 
 
 7 App. B. C. i. 102. 474; cf. Cic. Leg. Agr. ii. 14. 35. 
 
 6 Sail. Hist. i. 55. 11. They were then being made according to the law of M. 
 Octavius (p. 401), or if that was repealed by Cinna, according to the lex Sempronia 
 of 123 (p. 372). 
 
 9 Lange, Rom. Alt. ii. 693. The statement in iii. 161 is less exact. 
 
 10 App. B. C. i. 102. 474. u Cic. Off. iii. 22. 87. 12 P. 409 f. 
 
 18 Hence it was that T. Crispinus, quaestor in the following year, treated the Va- 
 lerian law as no longer in force; Cic. Font. 15; Lange, ibid. iii. 162. To this date 
 seems to belong the lex Cornelia de sponsu (Gaius iii. 124), which Poste, 359, reason- 
 ably assigns to the dictator. 
 
 14 CIL. i 2 . p. 333; Veil. ii. 27.6; Cic. Verr.i. 10.31; Pseud. Ascon. 150; Wissowa, 
 Relig. u. Kult. d. Rom. 128. 
 
COMITIAL LEGISLATION, 82-30 423 
 
 must have passed a lex de ludis Victoriae instituendis. 1 Lastly 
 came the sumptuary law, through which he attempted to regu- 
 late the manners and morals of the citizens. 2 It was the restora- 
 tion, in a revised form, of the lex Licinia of 104, 3 which had 
 been repealed by M. Duronius in 97.* The Cornelian statute 
 permitted the expenditure of no more than three hundred 
 sesterces for meals on the calends, nones, ides, ludi, and certain 
 other holidays, and only thirty for ordinary meals ; and it fixed 
 the prices of various luxuries. 6 Another article of the same 
 statute limited funeral expenses. 6 The author's object seems to 
 have been to restore the morals and manners as well as the con- 
 stitution and laws of the good old time before they were corrupted 
 by the demagogues. 
 
 Sulla's legislation was substantially complete on January 1, 80, 
 when he entered upon his second consulship with Q. Caecilius 
 Metellus Pius as colleague. 7 Retiring into private life early in 
 79, he left the constitution to its fate. No better comment on 
 its value could be offered than the history of its decline and over- 
 throw in a single decade. Opposition began to manifest itself 
 from the time of his abdication ; and he was hardly in his grave 
 when M. Aemilius Lepidus, consul in 78, promulgated bills for 
 the abolition of some of the Cornelian statutes ; but the opposi- 
 tion of his colleague, Q. Lutatius Catulus, and of the senate 
 prevented their ratification. 8 The right of retired tribunes to 
 
 1 Lange, Rom. Alt. ii. 675; iii. 162. 
 
 2 Its existence is assumed for the year 80; Flut. Sull. 35. 
 
 « P. 388, n. 9. * Ibid. 
 
 Gell. ii. 24. II; Macrob. Sat. iii. 17. II. 
 
 " Plut. Sull. 35. Here belongs also his regulation de adulteriis et pudicitia; p. 420, 
 n. 6 above. 
 
 7 CIL. i 3 . p. 154. A proof that he completed his legislation in this year is the fact 
 that he looked upon the following as a time of probation for his system (App. B. C. i. 
 103; Cic. Rose. Am. 48. 139), and that the newly organized criminal courts were in 
 operation for the first time in 80; Cic. ibid. 5. II; 10. 28; Brut. 90. 312; Off. ii. 14. 
 51; Gell. xv. 28. 3; Plut.. Cic. 3. 
 
 On the form of comitia used for the ratification of his measures, see p. 236. 
 
 8 The general character of these proposals, among which the frumentarian alone 
 was adopted, can be gathered from the Oration of Lepidus, in Sail. Hist. i. 55 j cf. 
 Gran. Licin. x. p. 44 : " Legem frumentariam nullo resistente adeptus est, ut annonae 
 quinque modi populo darentur, et alia multa pollicebantur : exules reducere, res gestas 
 a Sulla rescindere"; Tac. Ann. iii. 27; Klebs, in Pauly-Wissowa, Real-Encycl. i. 
 554 £ 
 
424 THE ROMAN ASSEMBLIES 
 
 sue for other offices, 1 however, was restored by a statute of the 
 consul C. Aurelius Cotta, 75. 2 
 
 Before coming to the restoration of the tribunician power it 
 is necessary to mention the statutes passed under the Cornelian 
 constitution. To 78 or 77 probably belongs the lex Plautia de 
 vi, generally regarded as tribunician, which established a quaes- 
 tio perpetua for the trial of persons charged with violence. It 
 also forbade the acquisition by long use of things stolen or vio- 
 lently seized. 3 As no censors were elected, an order of the 
 people of unknown authorship in 75, pursuant to a senatus con- 
 sultum, empowered the consuls of the year to farm the vecti- 
 galia. 4 The approaching end of the Cornelian regime was 
 foreboded in the Plautian law for the recall of Cinna and other 
 exiled democrats, if indeed this measure belongs to 73, 6 and 
 certainly in the consular law of Cn. Cornelius Lentulus Clodi- 
 anus, 72, which directed the consuls of the year to collect the 
 money remitted by Sulla to the purchasers of confiscated es- 
 tates. 6 A popular tendency may be discovered as well in the 
 
 1 P. 414- 
 
 2 Sail. Hist. ii. 49; Ascon. 66, 78; Pseud. Ascon. 200; Lange, Rom. Alt. iii. 
 178 f.; Long, Rom. Rep. iii. 3; Herzog, Rom. Staatsverf. i. 531 f.; Klebs. ibid. ii. 
 2483. 
 
 Cicero, Cornel, i. 18 (Frag. A. vii), states that Cotta proposed to the senate the 
 repeal of his own laws, whereupon Asconius comments that he can find the mention of 
 no law of his except the one concerning retired tribunes above described. Cicero, 
 however, attributes to him a lex de iudiciis privatis, which his brother caused to be 
 repealed in the following year; Cornel, i. 19. It is not otherwise known. 
 
 8 Sail. Cat. 31; Gaius ii. 45; Cuq, in Daremberg et Saglio, Diet. iii. 1 159. For 
 the cases coming before this court, see Greenidge, Leg. Proced. 424, 11. 6. 
 
 4 Cic. Verr. iii. 8. 9. C. Scribonius, consul in the preceding year, may have been 
 author of the lex Scribonia de usucapione servitutum (Dig. xli. 3. 4. 28; cf. Cic. 
 Caecin. 26. 74), or it may belong to the tribune of the same name of the year 50; 
 p. 450, n. v.. 
 
 6 P. 413, n. 4. The consuls of 73 passed a frumentarian measure — the lex Cassia 
 Terentia, considered below; p. 444, n. 6. 
 
 6 Sail. Hist. iv. I, in Gell. xviii. 4. 4. Sallust speaks of nothing more than the 
 promulgation of the law; but we know that afterward an attempt was made to col- 
 lect the moneys; Ascon. 72; cf. Lange, Rom. Alt. iii. 190, 221; Drumann-Grobe, 
 Geseh. Roms, ii. 467. Miinzer, in Pauly-Wissowa, Real-Encycl. iv. 1380, speaks of 
 the measure as a proposal. 
 
 The same consul with his colleague, L. Gellius Poplicola, proposed and carried a 
 law for confirming the grants of citizenship already made by Pompey in Spain; Cic. 
 Bald. 8. 19; 14. 32 f.; Pliny, N. H. v. 5. 36. Their joint proposal that provincials 
 
COMITIAL LEGISLATION, 82-30 425 
 
 final settlement of the question of conflict between sessions of 
 the senate and of the comitia by the lex Pupia, which seems to 
 have been a statute of M. Pupius Piso Calpurnianus, praetor in 
 7 1. 1 It forbade the magistrates to convoke the senate on those 
 comitial days on which an assembly actually met, 2 the prohibi- 
 tion applying to that part only of the day which preceded the 
 dismissal of the comitia. 8 It was probably this year which saw 
 the enactment of the lex Antonia de Termessibus — a plebiscite 
 proposed de senatus sententia by C. Antonius, tribune of the 
 plebs, and several of his colleagues, for granting to Termessus 
 Major in Pisidia the rights of a free state in friendship and alli- 
 ance with Rome, and for regulating on that basis the relations 
 which were to exist between the inhabitants and the Romans. 4 
 The struggle for the rehabilitation of the tribunes began in 
 78, when those officials applied to the consuls for legislation on 
 the subject. Even Aemilius Lepidus 6 declined, as he could see 
 no advantage in the unhampered tribunate. 6 Though generally 
 in these early years of the Cornelian regime the tribunes were 
 mere puppets of the senate, one of them in 76, L. Sicinius, 
 dared in a contio to plead for the full restoration of their office. 7 
 In the following year Q. Opimius, another tribune, continued 
 the struggle, with such success that he secured the passage of 
 the Aurelian law above mentioned. 8 This measure narrowly 
 escaped annulment, and Opimius after retiring from office was 
 
 should not in their absence be tried on a capital charge took the form merely of a 
 senatus consultum; Cic. Verr. II. ii. 38.95; Miinzer, ibid.; Drumann-Grobe, ibid. 
 In 71 {CIL. i. 593 = vi. 1299) and in 62 {CIL. i. 600 = vi. 1305) there was a. 
 curator viarum e lege Visellia. The law mentioned could not have been later than 
 71, but may have been many years earlier. There were curatores viarum in 115; 
 CIL. vi. 3824; Marquardt, Rom. Staatsv. ii. 89, n. 6. 
 
 1 Cic. Flacc. 3. 6; Ascon. 15; cf. Lange, Rom. Alt. iii. 191. 
 
 2 Cic. Q. Fr. ii. 13. 3; Fam. i. 4. 1 ; cf. Q. Fr. ii. 2. 3; Fam. viii. 8. 5; Sest. 34. 74; 
 Caes. B. C. i. 5. 
 
 8 Cic. Att. i. 14. 5 ; Dio Cass, xxxvii. 43. 3. As consul in 63 Cicero adjourned the 
 assembly in order to hold a meeting of the senate on a certain comitial day; Cic. 
 Mur. 25. 51; Plut. Cic. 14. 
 
 4 The first chapter of this law is preserved in an inscription; CIL. i. 204; Bruns, 
 Font. lur. p. 94; Girard, Textes, p. 66. 6 P. 423. 
 
 8 Gran. Licin. x. p. 44. It was charged against him by Philippus in the senate 
 that for the sake of concord he wished to restore the tribunician power; Sail. Hist. 
 i. 77. 14. 
 
 7 Sail. Hist. iii. 48. 8; Pseud. Ascon. 103. 8 P. 423 f. 
 
426 THE ROMAN ASSEMBLIES 
 
 exorbitantly fined on the ground that he had interceded in vio- 
 lation of a Cornelian law. 1 In the year of the condemnation of 
 Opimius, 74, L. Quinctius, who had risen to the tribunate from 
 the lowest social class, strove energetically for the same object, 2 
 though he could effect no more than the maintenance of the 
 Aurelian law. Toward the close of his term, however, he opened 
 battle against the senatorial courts, which had fallen into disfavor 
 because of their corruption. 3 In 73 the contest was resumed by 
 Licinius Macer the annalist, then tribune of the plebs, who de- 
 manded in vain the full restoration of the tribunician power. 4 In 
 his efforts he had the support of C. Julius Caesar. 6 The struggle 
 died down as the danger from Spartacus rose ; but at the close 
 of the servile war it was a tribune of the plebs, M. Lollius Pali- 
 canus, a man of low birth, who in a contio held outside the walls 
 in order that Pompey, a proconsul, might attend, persuaded the 
 latter to commit himself publicly to a definite promise to bring 
 about a repeal of the lex Cornelia de tribunicia potestate. 6 In- 
 veighing against the corruption of the senatorial courts, 7 Pom- 
 pey in the same speech intimated an intention to propose a bill 
 on this subject as well. 
 
 Shortly after entering upon the office of consul in 70, or at all 
 events before the elections of the year, 8 Pompey promulgated 
 his rogation for the restoration of the tribunician power. 
 The senate yielded in spite of its dislike for the measure, 9 and 
 Licinius Crassus, his colleague, 10 added his name to the pro- 
 posal. 11 The people gladly accepted it. Those articles of the 
 Cornelian statute which remained untouched by the Aurelian 
 
 1 Cic. Verr. II. i. 60. 
 
 2 Cic. Cluent. 34. 93 f.; Ascon. 103; Plut. Lucull. 5. 
 
 8 Licinius Macer, Oratio ad plebem, in Sail. Hist. iii. 48. II (cf. iv. 71); Cic. 
 Cluent. 22. 61; 27. 74; 28. 77; 29. 79; Pseud. Ascon. 141; Schol. Gronov. 386, 
 
 395. 441- 
 
 4 Sail. Hist. iii. 48; Cic. Brut. 67. 238. 
 6 Suet. Cats. 5. 
 
 6 Plut. Pomp. 21; App. B. C. i. 121. 560; Sail. Hist. iv. 44 ("Magnara exorsus 
 orationem ") probably refers to his speech in this contio. Frag. 45 (" Si nihil ante 
 adventum suum inter plebem et patres convenisset, coram se daturum operam") 
 seems also to be from this speech. 
 
 7 Sail. Hist. iv. 46. 8 Cic. Verr. i. 16. 46 f. 
 
 9 Ibid. 15. 44; Pseud. Ascon. 147. 1° CIL. i 2 . p. 154. 
 
 11 Livy, ep. xcvii; Cic. Frag. A. vii {Cornel, i). 47; Ascon. 75; Pseud. Ascon. 103. 
 
COMITIAL LEGISLATION, 82-30 427 
 
 law of 75 were thereby repealed, and every restriction on the 
 tribunes removed. 1 By destroying the chief support of the 
 Cornelian constitution this measure paved the way to its over- 
 throw. Notwithstanding the popular clamor for a reform of 
 the courts, 2 Pompey hesitated to propose a law for that purpose, 
 as he hoped rather to purify the senatorial order through a 
 severe censorial revision so as to make a judiciary law unneces- 
 sary. The reform, however, was taken in hand by L. Aurelius 
 Cotta, praetor in the same year, youngest brother of the consul 
 of 75- 3 The rogation was promulgated while the trial of 
 Verres was in progress and while the people were excited by 
 lack of confidence in the senatorial jurors. 4 The first project 
 seems to have been the retransfer of the courts to the equites ; 5 
 but when the senators saw that they were destined to lose in 
 the contest, they were able to save something by compromise. 
 It was agreed that there should be three decuries of jurors, com- 
 posed in equal numbers of senators, knights, and tribuni aerarii 
 respectively. 6 The last-named decury was included because 
 the Plautian judiciary law of 89 had opened the courts to com- 
 mon citizens in addition to senators and knights, 7 and it was 
 now thought that no less liberality should be shown. The 
 Aurelian statute provided accordingly that the urban praetor 8 
 should make up the annual album iudicum of an equal number 
 of men from each of the three classes. 9 The good feature of 
 
 1 Sail. Cat. 38; Veil. ii. 30. 4; Cic. Leg. iii. 9. 22; ii. 26; Plut. Pomp. 22; App. 
 B. C. ii. 29. 113; cf. Cic. Verr. v. 63. 163; 68. 175; Schol. Gronov. 397; Lange, 
 Rom. Alt. iii. 192 f.; Long, Rom. Rep.\\\. 49-51; Herzog, Rom. Staatsverf. i. 553. 
 
 2 Cic. Verr. i. 15. 45. 
 
 8 P. 424. Pompey found it popular to give his assent; Plut. Pomp. 22; cf. 
 Neumann, Gesch. Roms, ii. 75. 
 
 * Cicero, in his In Verrem Actio I, is unacquainted with the rogation and ex- 
 presses the hope that the condemnation of Verres will restore confidence in the sena- 
 torial courts. In Actio II, composed after the exile of Verres and not delivered, he 
 assumes the existence of such a rogation (cf. v. 69. 177}. 
 
 6 Cic. Verr. ii. 71. 174 f.; iii. 96. 223 f.; v. 69. 177 f.; Livy, ep. xcvii; Plut. 
 Pomp. 22; Pseud. Ascon. 127. 
 
 6 On the tribuni aerarii, see p. 64, n. 3. See also Cic. Phil. i. 8. 20; Rab. Perd. 9. 
 27; Cat. iv. 7. 15; Ascon. 16; Schol. Bob. 339. 
 
 7 P. 402. 
 
 8 Cic. Cluent. 43. 121. 
 
 9 Cic. Att. i. 16. 3; Phil. i. 8. 20; Ascon. 16, 30, 53, 67, 78, 90; Pseud. Ascon. 
 103; Schol. Bob. 229, 235, 339; Schol. Gronov. 384, 386; Lange, Rom. Alt. iii. 
 
428 THE ROMAN ASSEMBLIES 
 
 the law is obvious. As experience had proved the equestrian 
 courts, as well as the senatorial, to be partisan and corrupt, it 
 was hoped that a combination of the two with an equal pro- 
 portion of the most responsible and respectable common citi- 
 zens would be just and impartial. If these expectations were 
 not realized, it was the fault of the Romans, not of their law. 
 
 II. Democracy in Alliance with Caesarism 
 70-49 
 
 The first tribunician law under the restored constitution may 
 have been the sumptuary statute of C. Antius Restio, which 
 Lange 1 assigns to the year 70. It limited the amount to be 
 expended on festive meals; it designated some delicacies as 
 allowable and others as forbidden ; and it regulated the partici- 
 pation of candidates and of magistrates in dinners away from 
 home, doubtless with a view to curtailing ambitus practiced by 
 such means. 2 Far however from being a partisan measure, 
 this statute seems to have been suggested by the censors of 
 the year, to reenforce their function of supervising the morals 
 of the citizens. 
 
 Three years passed before the tribunes of the plebs were 
 ready to make independent use of their recovered power. The 
 reason is to be found in the harmony — concordia ordinum 3 — 
 reestablished between senators and knights, when representa- 
 tives of the two classes found themselves sitting together on the 
 jury benches. Although the object of the combination was 
 idealized by contemporaries, it was in fact a governing " trust," 
 which in practice operated for the maintenance of plutocracy 
 and for the ruthless exploitation of the provincials. 4 The no- 
 bles were willing to concede something to the equites to make 
 permanent the alliance with this powerful order. 5 L. Roscius 
 
 197 f.; Herzog, Rom. Staatsverf. i. 533; Greenidge, Leg. Proced. 442 ff.; Long, Rom. 
 Rep. iii. 51-3; Klebs, in Pauly-Wissowa, Real-Encycl. ii. 2485 f. 
 
 The reference to a lex Aurelia in Cic. Q. Fr. i. 3. 8, seems to be, not to a lex de 
 ambitu, as Lange, ibid. iii. 198, supposes, but to the lex iudiciaria under discussion. 
 
 1 Rom. Alt. ii. 199 (cf. ii. 671). It must have been passed between the death of 
 Sulla and 57; Gell. ii. 24. 13; Macrob. Sat. iii. 17. 13; Cic. Fam. vii. 26. 2. 
 
 2 Q. Cic. Petit. Cons. II. 44. s Cic. Cluent. 55. 152 (year 66). 
 4 Cic. Att. i. 17. 9; Off. iii. 22. 88; cf. Lange, Rom. Alt. iii. 202. 
 
 6 Cf. Neumann, Geseh. Roms, ii. 141. 
 
COMITIAL LEGISLATION, 82-30 429 
 
 Otho, tribune of the plebs in 67, as spokesman of the opti- 
 mates 1 " railroaded " 2 through the assembly a statute which 
 ordered that there should be reserved in the theatre for those 
 in possession of the equestrian census 8 fourteen rows of seats 
 just back of the orchestra, in which sat the senators. 4 It was 
 more than a restoration of the concession made to the knights 
 in 146, which evidently Sulla had withdrawn. 6 
 
 There were in this year (67), however, two popular tribunes, 
 A. Gabinius and C. Cornelius, both of whom proposed and 
 carried laws in the interest of the people. Early in the year 
 Gabinius persuaded the tribes to adopt a statute which ordered 
 the senate to sit daily during February to consider embassies. 6 
 It was in this month that delegations from other states gener- 
 ally came. Often to obtain a hearing they had to bribe the 
 senators and magistrates. 7 For that month the Gabinian law 
 reversed the Pupian 8 by making senatorial sessions compulsory 
 and forbidding the concurrence of comitia. 9 The object was to 
 limit the stay of foreign embassies at Rome not only for their 
 own convenience but also for lessening both the need and the 
 opportunity for bribery. Closely related was the purpose of his 
 statute which forbade lending money to provincials at Rome. 10 
 Representatives of subject and allied states, finding it necessary 
 to bribe more extensively than their resources in hand allowed, 
 were tempted to borrow of the capitalists at exorbitant interest. 
 Private individuals from the provinces must often have similarly 
 borrowed to the ruin of their fortunes. The double aim of the 
 statute, accordingly, was to help the provincials and to check 
 bribery. How it passed against senatorial opposition is un- 
 known. A supplementary measure on the same subject was 
 
 1 Dio Cass, xxxvi. 30. 
 
 2 Cic. Frag. A. vii (Cornel, i). 52; Ascon. 78. 
 
 8 Cic. Phil. ii. 18. 44; Hor. Epist. i. 1. 61; Juv. iii. 159; xiv. 324. 
 
 L Livy, ep. xcix; Tac. Ann. xv. 32; Ascon. 79; Cic. Mur. 19. 40; Dio Cass, 
 xxxvi. 42. 1; cf. Hor. Epod. iv. 15. The censors of 194 had given front seats to the 
 senators; p. 356 f. 
 
 6 Veil. ii. 32. 3; Cic. Mur. 19. 40; p. 356 f. above. 
 
 6 Cic. Q. Fr. ii. II. 3. 7 Drumann-Grobe, Gesch. Roms, ii. 526. 
 
 8 P. 425. 9 Cic. Q. Fr. ii. 13. 3; cf. Fam. i. 4. I. 
 
 10 Cic. Alt. v. 21. 12; vi. 2. 7. Loans were sometimes made in violation of the 
 law (Flacc. 20. 46 f.), and sometimes the senate granted a dispensation from it; Att. 
 v. 21. 11 f.; vi. 2. 7; Lange, Rom. Alt. iii. 203. 
 
430 THE ROMAN ASSEMBLIES 
 
 proposed to the senate by C. Cornelius, a colleague of Gabinius, 
 for prohibiting the lending of money to the legati of other states, 
 the idea being identical with that of the two Gabinian laws. 
 The good intention of Cornelius is vouched for by the well- 
 known uprightness 1 of his character, which contrasts with the 
 reputed vileness of Gabinius. But the senate rejected the pro- 
 posal on the ground that it had already made sufficient provi- 
 sion for checking the abuse. Although Cornelius thereupon 
 complained in a contio that the provinces were being exhausted 
 by usury, he does not seem to have urged his measure further. 2 
 He promulgated, however, against the interests of the senate a 
 rogation for ordering that no one should receive a dispensation 
 from a law excepting through a vote of the comitia. This right 
 had been acquired by the people in the period between the 
 Publilian and the Hortensian legislation (339~287). 3 It had 
 come to be regarded as inseparable from the sovereignty of the 
 people to such an extent that all senatus consulta for dispens- 
 ing from the laws contained a provision for bringing the matter 
 before the comitia. Gradually the custom of referring to the 
 people ceased, and at last the provision to that effect was 
 dropped from senatorial decrees. The result was that often a 
 few senators, meeting in the Curia, voted away to acquaintances 
 and relatives the valuable privilege of exemption from a law. 
 The optimates induced a tribune of the plebs, P. Servilius 
 Globulus, to intercede against the bill while it was being read to 
 the assembly prior to the vote. When the dissenting tribune 
 forbade the crier to proceed with the reading, Cornelius himself 
 read it. 4 A disturbance in the assembly, started by the inter- 
 ference of Piso the consul, caused Cornelius to dismiss the con- 
 cilium. Afterward he so compromised with the optimates as to 
 secure the passage of a law that no dispensations should be 
 granted by the senate unless two hundred members were pres- 
 ent, and that when a resolution of the kind was brought down 
 from the senate to the people, no one should intercede against 
 the act. 5 The victory was with the senate ; it gained a legal 
 right to a function which it had usurped, provision being merely 
 
 1 Ascon. 56. 2 Ibid. 57. » P. 307 f. 
 
 4 Cic. Frag. A. vii {Cornel, i). 5; Valin. 2. 5; Ascon. 57 f.; Quintil. Inst. x. 5. 
 3 (iv. 4. 8). 6 Ascon. 58; Dio Cass, xxxvi. 39. 4. 
 
COMITIAL LEGISLATION, 82-30 431 
 
 made against abuse. But it exercised this function by the suf- 
 ferance of the tribunes, any one of whom could insist on bring- 
 ing the dispensing resolution before the people, in which case 
 his colleagues were forbidden to intercede. 1 
 
 Another proposal of this tribune was the rogatio de ambitu, 
 which threatened with severe penalties not only the candidates 
 but also their agents, the divisores, whose duty was to distribute 
 the corruption fund among the tribes. 2 The senate, declaring 
 the penalties so harsh that neither accuser nor jurors could be 
 found to enforce it, put the bill in the hands of the two consuls, 
 C. Calpurnius Piso and M'. Acilius Glabrio. 3 Here was a comi- 
 cal situation ; both consuls were liable to the existing law on 
 the subject ; but for the sake of appearances they had to revise 
 the bill and present it to the comitia in the Forum. 4 The lex 
 Acilia Calpurnia, enacted in this way, 5 inflicted on those found 
 guilty of the crime a heavy fine, and forever disqualified them 
 from holding office or sitting in the senate. 6 Cornelius pro- 
 posed other measures, all of which were vetoed by colleagues 
 excepting his lex concerning the edict of the praetor, described 
 as follows by Dio Cassius : 7 "All the praetors themselves com- 
 piled and published the principles according to which they in- 
 tended to try cases ; for all the decrees regarding contracts had 
 not yet been laid down. Now since they were not in the habit 
 of doing this once for all and did not observe the rules as writ- 
 ten, but often made changes in them and incidentally a number 
 
 1 Cf. Lange, Rom. Alt. iii. 214; Mommsen, Rom. Staatsr. iii. 337 f.j Long, Rom. 
 Rep. iii. 107. Dio Cassius, xxxvi. 39, has wholly misunderstood the matter. Fer- 
 rero's account {Rome, i. 194) of the Cornelian legislation is inaccurate in all points. 
 
 2 Dio Cass, xxxvi. 38. 4; Cic. Frag. A. vii {Cornel, i). 40. 
 
 8 CIL. I 2 , p. 156; Klebs, in Pauly-Wissowa, Real-Encycl. i. 256 f.; Munzer, ibid, 
 iii. 1376 f. 4 Ascon. 75. 
 
 6 Schol. Bob. 361; Ascon. 68, 89; Cic. Mar. 23. 46; 32. 67. It was opposed by 
 the people, who preferred the stricter measure of Cornelius; but Piso with a crowd 
 of followers forced it through the assembly; Dio Cass, xxxvi. 38. 1. 
 
 •Schol. Bob. 361; Dio Cass, xxxvi. 38; xxxvii. 25. 3; Greenidge, Leg. Proced. 
 425, 508, 521 f.; Mommsen, Rom. Strafr. 867; Long, Rom. Rep. iii. 105 f. It was 
 supplemented by the lex Fabia de numero sectatorum, apparently a plebiscite of 66; 
 Cic. Mar. 34. 71; Mommsen, ibid. 871; Drumann-Grobe, Gesch. Roms, ii. 527. 
 
 7 XXXVI. 40. 1 f. (Foster's rendering) ; cf. Ascon. 58; Cic. Fin. ii. 22. 74; Lange, 
 Rom. Alt. ii. 656; iii. 215; Long, Rom. Rep. iii. 107 f.; Drumann-Grobe, Gesch. 
 Roms, ii. 527; Greenidge, Leg. Proced. 95, 97 f., 122. 
 
432 THE ROMAN ASSEMBLIES 
 
 of clauses naturally appeared in some one's favor or to some one's 
 hurt, he moved that they should at the very start announce the 
 principles they would use and not swerve from them at all." 
 The object was to make the administration of the law more just 
 and regular, and to cut off an opportunity for favoritism. 1 
 
 By far the most important measure of the year was the 
 Gabinian law for the appointment of an especial commander 
 against the pirates. The proposition was that from the con- 
 sulares should be chosen a general for putting down the 
 pirates ; that his province should be the entire Mediterranean 
 and a strip of its coasts extending fifty miles inland, including 
 Italy and the islands ; that the command should continue three 
 years ; that the holder of this imperium should have the right 
 to fifteen legati and 200 ships, and the privilege of enlisting 
 soldiers and oarsmen over all his province; that he should have 
 credit with the aerarium at Rome and the publicans in the prov- 
 inces for 6000 talents. 2 The name of Pompey did not appear 
 in the bill, but no one doubted who was to be the man. The 
 optimates were all opposed, though in 74 they had given Anto- 
 nius such a command, 3 which now served Gabinius as a prece- 
 dent. The senate was compelled by threats of the people to 
 yield, but used its influence on the colleagues of Gabinius to 
 have them oppose the measure. Two of them, L. Roscius Otho, 
 author of the lex theatralis,* and L. Trebellius, attempted to 
 prevent comitial action. The tribes began to vote the deposi- 
 tion of Trebellius; but before the eighteenth was called he 
 desisted. 5 Thereafter both remained silent, and the law was 
 passed. Pompey was then elected to the command by the 
 tribes. 6 They enacted further that he should have two quaes- 
 tors, twenty-four legati pro praetore, 500 ships, 120,000 men, 
 
 1 Ascon. 58. The restriction, however, was only partial; Erman, in Melanges Ch. 
 Appleton (1903), 201-304. The author of the law seems to have been a man not 
 only of excellent heart but of remarkably statesmanlike views, though the optimates 
 naturally classed him as seditious. On Cornelius in general, see Munzer, in Pauly- 
 Wissowa, Real-Encycl. iv. 1252-5; Drumann-Grobe, Gesch. Roms, ii. 526-9. 
 
 2 Dio Cass, xxxvi. 23 ff.; Plut. Pomp. 25; Veil. ii. 31; App. Mithr. 94. 
 
 8 Veil. ii. 31; Cic. Verr. ii. 3. 8; iii. 91. 213; Pseud. Ascon. 122, 176, 206; 
 Schol. Bob. 234; Sail. Hist. iii. 4 f . « P. 428 f. 
 
 6 Dio Cass, xxxvi. 30. 2; cf. the deposition of Octavius, p. 367. 
 6 Cic. Imp. Pomp. 15. 44; Livy, ep. xcix; Eutrop. vi. 12. 
 
COMITIAL LEGISLATION, 82-30 433 
 
 and 5000 cavalry. On one point only the senate refused its 
 sanction; it would not permit Gabinius to be a legatus. 1 An 
 article of the statute gave as a province to the outgoing consul, 
 M'. Acilius Glabrio, Bithynia and Pontus with the conduct of the 
 war against Mithridates. 2 The Gabinian law led to far-reach- 
 ing consequences. It established temporarily, not precisely a 
 monarchy, but a dyarchy, as the Roman world was thereby 
 divided ^between the senate and a general with almost absolute 
 power. The arrangement was a prototype of the Augustan 
 system. At the outset the act seemed to be justified by the 
 results, for immediately after its adoption the price of grain fell 
 from the famine height to which the piratical control of the 
 seas had forced it. 3 
 
 An addition to this vast power was made in the following 
 year by the Manilian law. The author, C. Manilius, after 
 entering upon his tribunate on December 10, 67, promulgated 
 a rogation for giving libertini the right to vote in the tribes of 
 their patrons. 4 It was said by some, though probably without 
 ground, that the real author was Cornelius. 5 While in general 
 the optimates disliked the measure, some favored it in the hope 
 that they would gain political influence through the votes of 
 their freedmen. 6 In spite of the fact that constitutionally the 
 comitia could not be held on a festive day, Manilius convoked 
 the assembly on the last day of the year, which was the Com- 
 pitalia, toward evening, gathering to the assembly a few men 
 who he knew favored the proposal. On the following day 
 the senate heard of the enactment and at once declared it in- 
 valid. 7 The behavior of Manilius exposed him to certain prose- 
 cution unless he could win powerful support. This is the 
 motive ascribed to him by Dio Cassius 8 for his famous law 
 
 1 Plut. Pomp. 26; Dio Cass, xxxvi. 37. 1 ; Cic. Imp. Pomp. 19. 57 f. 
 
 2 Sail. Hist. v. 13; cf. Klebs, in Pauly-Wissowa, Real-Encycl. i. 256. 
 
 8 Cf. Drumann-Grobe, Gesch. Horns, ii. 76. Another comitial act on foreign 
 affairs was the plebiscite of unknown authorship providing for a commission of ten 
 to aid Lucullus in settling the affairs of Asia; Dio Cass, xxxvi. 43. 2. 
 
 4 Ascon. p. 64 ff.; Dio Cass, xxxvi. 42. 1-3. 
 
 6 Cic. Frag. A. vii {Cornel, i). 3. 6 Cic. Mur. 23. 47. 
 
 7 Ascon. 65 f. The Cn. Manlius mentioned by Ascon. 45 f. is probably to be 
 identified with this Manilius; Drumann-Grobe, Gesch. Horns, iii. 19, u. 9. 
 
 8 XXXVI. 42. 3. 
 
 IF 
 
434 
 
 THE ROMAN ASSEMBLIES 
 
 which conferred extraordinary power on Pompey for the con- 
 duct of the war against Mithridates. 1 It gave the Roman gen- 
 eral, in addition to his existing command, the provinces of Asia, 
 Bithynia, and Cilicia with the right to declare war and make 
 treaties at his discretion. 2 The province thus granted him in- 
 cluded nearly all the eastern domain of Rome which had not 
 already been conferred by the Gabinian law. No discussion of 
 this measure in the senate is mentioned, though it is difficult to 
 understand how such action could be avoided. 3 The only 
 optimates who opposed the bill in contiones were Q. Lutatius 
 Catulus and Q. Hortensius, who had been the chief opponents 
 of the Gabinian law. Their objection was the monarchical 
 position in which these measures were placing Pompey.* Its 
 leading supporters were Caesar and Cicero. 5 It was so enthu- 
 siastically favored by the knights and the populace that its 
 adoption was from the beginning a foregone conclusion. 
 
 In 65 the conservatives found themselves strong enough to 
 put through the assembly the plebiscite of C. Papius for expel- 
 ling the peregrini from Rome, and for punishing those who had 
 usurped the rights of the citizens. The object was to prevent 
 Latin-speaking foreigners, especially the Transpadane Gauls, 
 from packing the assemblies with a view to passing measures 
 for the further extension of the franchise. The Papian law 
 was modelled after the Claudian of 177, 6 the Junian of 126, 7 
 and in some respects after the Licinian-Mucian of 95. 8 Prob- 
 ably to the same Papius belongs the lex Papia de Vestalium 
 lectione, which limited the power of choice exercised by the 
 supreme pontiff. 9 
 
 1 Ascon. 66, or more simply the " lex de imperio Cn. Pompeii " ; Cic. Imp. Pomp. 
 Inscr. 
 
 2 Dio Cass, xxxvi. 42.4; Plut. Pomp, 30; Lucull. 35; App. Mithr. 97; Livy, 
 ep. c; Veil. ii. 33. I; Eutrop. vi. 12. 
 
 8 Lange, Rom. Alt. iii. 219; Willems, Sen. Pom. ii. 586 f. 
 
 4 Cic. Imp. Pomp. 17. 51 ff.; 20. 59 ff. ; Plut. Pomp. 30. 
 
 5 Dio Cass, xxxvi. 43. 2, and especially Cicero's oration De imperio Pompeii ad 
 quirites. Long, Rom. Rep. iii. 131 f., severely criticises Dio Cassius for his treat- 
 ment of Cicero's motives. B P. 354. 1 p. 370. 
 
 8 P- 397; Cic. Off. iii. 11. 47; Brut. 16. 63; Pali. 21. 48; 23. 52; 24. 54; Arch. 
 5. 10; Leg. Agr. i. 4. 13; Ascon. 67; Schol. Bob. 296, 354; Dio Cass, xxxvii. 9. 5; 
 Lange, Rom. Alt. iii. 229; Drumann-Grobe, Gesch. Roms, iii. 140. 
 
 9 Gell. i. 12. 11 f.; Suet. Aug. 31; Lange, ibid. ii. 675 f.; iii. 229; Wissowa, 
 Relig. u. Kult. d. Rom. 439. 
 
COMITIAL LEGISLATION, 82-30 435 
 
 After the unusual comitial activity of 67-66 there was almost 
 a pause in legislation till the year of Cicero's consulship, 63. 
 To that date belongs the plebiscite of T. Atius Labienus, 
 which restored the form of election of sacerdotes introduced 
 by Domitius in 103 1 and abolished by Sulla. 2 
 
 A remarkable effort at agrarian legislation was made at the 
 beginning of the year by P. Servilius Rullus, tribune of the 
 plebs. In December, 64, shortly after entering office, he pro- 
 mulgated a bill, comprising more than forty articles, 8 with the 
 intention of having it voted on in January. 4 The administra- 
 tion of the law was to be in the hands of ten men elected by 
 seventeen tribes after the manner of the comitia pontificis 
 maximi, 6 to hold office five years. 6 Candidates should be 
 required to present themselves in person 7 (so as to exclude 
 Pompey). This commission was to have the irresponsible 8 
 management of large resources 9 for the purchase of land in 
 Italy, 10 on which they were to plant colonies at their discretion. 11 
 The object of the rogation seems to have been the creation of 
 an oligarchy of ten who with their vast powers and revenues 
 should control Rome and counterbalance the military prestige 
 of Pompey. Caesar and Crassus were probably behind the 
 scheme. Should it by any chance succeed, they would be 
 the dominant members of the board. Its faulty structure and 
 revolutionary demands, however, made failure almost certain 
 from the outset. At all events Cicero, driven into the ranks 
 
 1 P. 391. 
 
 2 P. 416. On the lex Atia, see Dio Cass, xxxvii. 37. I; Lange, Horn. Alt. iii. 243. 
 This act had no effect on the supreme pontificate, which had remained elective 
 (p. 416 above) and which was conferred on Caesar soon after (Drumann-Grobe, 
 Gesck. Roms, iii. 155 f.) the enactment of the Atian law; Dio Cass. ibid, ; Suet. Cats. 
 13; Veil. ii. 43. 3. The same Atius, together with T. Ampius Balbus, a colleague, 
 proposed and carried a plebiscite for granting to Pompey the privilege of wearing the 
 triumphal ornaments in the Circensian games and the toga praetexta and laurel (or 
 golden?) crown at the theatres; Veil. ii. 40. 4; Dio Cass, xxxvii. 21. 3 f. 
 
 8 Cic. Leg. Agr. iii. 2. 4. 4 Ibid. i. 2. 4; ii. 5. 13. 
 
 6 Ibid. ii. 7. 16-8; 8. 21. 6 Ibid. ii. 13. 34; 24. 64. 
 
 7 Ibid. ii. 9. 24. 8 Ibid. i. 5. 15; ii. 13. 33; 27. 72. 
 
 9 From (1) an extensive sale of houses, lands, and other property belonging to 
 the state (ibid. i. 1. 3; 3. 10; ii. 14. 35; 15. 38), (2) vectigalia (i. 4. 10; ii. 21. 56), 
 and (3) other public moneys (i. 4. 12 f.; ii. 22. 59). 
 
 w Ibid. ii. 25. 66. 
 
 u Ibid. i. 5. 16 f.; ii. 13. 34; 20. 55; 24. 63; 25. 66; 26. 68; 27. 74 f. 
 
436 THE ROMAN ASSEMBLIES 
 
 of the optimates by the necessity of opposing it, — so Caesar 
 may have reasoned, — would thus be eliminated from the 
 leadership of the democratic party, while the populace, with 
 appetite whetted for an agrarian law, would be ready for the 
 saner measure which Caesar was himself intending to propose 
 as soon as an opportunity offered. But Cicero out-manoeuvred 
 his adversaries. It was as a friend of the people and an ally of 
 the tribunes that he opposed the bill in two contiones, 1 after 
 which a threat of intercession on the part of a colleague induced 
 Rullus to withdraw it. 
 
 In Cicero's judgment there was pressing need of a new lex 
 de ambitu to cover the loopholes left by the Acilian-Calpurnian 
 statute of 67? Early in the year he passed through the senate 
 a decree which so interpreted that enactment as to make it 
 apply to the hiring of sectatores, the granting of free seats 
 to the tribes at gladiatorial shows, and the entertainment of 
 the public at dinners. 3 Later in the summer, after the elec- 
 tions of the year had been announced, a dispensation from 
 the Aelian-Fufian law 4 enabled him and C. Antonius, his col- 
 league, 5 to propose and carry a new statute concerning bribery 
 at elections. 6 It increased the penalty on the divisores, 7 and 
 forbade any one within the two years preceding the announce- 
 ment of a candidacy to give gladiatorial shows excepting in 
 fulfilment of a testament. 8 The penalty for the convicted candi- 
 date was ten years' exile. 9 The part of the law which had to 
 do with the jurors included a provision for fining those who 
 absented themselves from the trial even on the ground of 
 illness. 10 A measure certainly passed in this year, and prob- 
 ably forming an article of the Tullian lex de ambitu, forbade 
 
 1 These are the second and third Orations on the Agrarian Law, the first having 
 been delivered in the senate. On the purpose of the rogation, see Neumann, Gesch. 
 Horns, ii. 223 ff. ; Drumann-Grobe, Gesch. Horns, iii. 143; Ferrero, Home, i. 231-3. 
 
 2 P. 431. 8 Cic. Mur. 32. 67. 
 4 Cic. Vat. 15. 37; p. 359 above. 6 CIL. i 2 . p. 156. 
 
 Cic. Mur. 2.y, 3. 5; 23. 47; 32. 67; Schol. Bob. 269, 309, 324, 362. 
 
 7 Cic. Mur. 23. 47. 
 
 8 Cic. Vat. 15. 37; Sest. 64. 133 (cf. Har. Resp. 26. 56); Schol. Bob. 309. 
 
 9 Cic. Mur. 23. 47; 41. 89; Plane. 34. 83; Schol. Bob. 269, 362; Dio Cass, 
 xxxvii. 29. 1. 
 
 10 Cic. Mur. 23. 47. On the law in general, see Lange, Rom. Alt. iii. 245; Hart- 
 mann, in Pauly-Wissowa, Real-Encycl. i. 1801. 
 
COMITIAL LEGISLATION, 82-30 437 
 
 candidacies in absentia. 1 Amid the troubles connected with 
 the Catilinarian conspiracy Cicero found time for an attempt 
 to relieve the provincials of one of the most flagrant abuses 
 inflicted on them by the senatorial oligarchy. To increase 
 the dignity and lessen the expense of a member while travel- 
 ling even on private business through the provinces, the senate 
 was accustomed to have the office of public legatus conferred 
 on him by a magistrate, which honor at the same time implied 
 the right to be absent from sessions of the senate. 2 In this 
 capacity a senator represented the state, 3 and could have lictors 
 assigned him by the provincial governors. 4 Abuses of this 
 privilege were to the provincials an especially vexatious form 
 of oppression. 6 Cicero's first rogation on the subject proposed 
 to abolish the free legation, but when a tribune in the service of 
 the illiberals interceded, the measure before enactment was so 
 weakened as to limit the privilege of any one person to a single 
 year, 8 and hence did little to remedy the mischief. 7 There was 
 in fact no hope for the provincials either from the avaricious 
 plutocrats or the hungry proletarians. 
 
 The legislation of the years between the consulships of Cicero 
 and Caesar, 63-59, involved no important principle. To pre- 
 
 1 Cic. Leg. Agr. ii. 9. 24, proves that no such law existed at the beginning of 63, 
 and in 62 its existence is assumed by the Caecilian rogation for dispensing Pompey 
 from its provisions; Schol. Bob. 302. 
 
 In 61 M. Aulidius Lurco, tribune of the plebs, attempted a curious modification of 
 the statute concerning corruption at elections, proposing that promises of money to 
 the tribes should not be binding, but that a candidate who actually paid should 
 be liable for life to a payment — apparently annual — of three thousand sesterces to 
 the tribe. His measure failed to become a law; Cic. Att. i. 16. 12 f.; 18. 3; Hart- 
 mann, ibid. i. 1802. 2 Cic. Fam. xi. I. 2; Att. ii. 18. 3. 
 
 3 Cic. Leg. iii. 8. 18. 4 Cic. Fam. xii. 21. 
 
 6 Cic. Leg. Agr. i. 3. 8; 17. 45; Flacc. 34. 86. 
 
 6 Cic. Leg. iii. 8. 18. 
 
 7 Cic. Flacc. 34. 86; Fam. xii. 21; Att. ii. 18. 3; xv. 11. 4; Suet. Tib. 31; Lange, 
 Rom. Alt. iii. 244. 
 
 Several unpassed bills of the year 63 are mentioned. (1) The rogation of L. 
 Caecilius, tribune of the plebs, for lightening the penalty upon P. Autronius Paetus 
 and P. Cornelius Sulla, who had been condemned for ambitus; Dio Cass, xxxvii. 25. 
 3; Cic. Sull. 22 f.; cf. Leg. Agr. ii. 3. 8; 4. 10. — (2) A proposal to restore to the 
 children of those whom Sulla had proscribed the right to become candidates for 
 offices; Dio Cass, ibid.; Plut. Cic. 12; Cic. Att. ii. I. 3. — (3) A proposal for the 
 cancellation of debts and (4) another for the allotment of lands in Italy. All these 
 measures were quashed by Cicero; Dio Cass. ibid. § 3 f. 
 
438 THE ROMAN ASSEMBLIES 
 
 vent the introduction of forged statutes in the archives, 1 a law 
 of D. Junius Silanus and L. Licinius Murena, consuls in 62, 
 forbade the filing of a statute in the aerarian archives excepting 
 in the presence of witnesses. 2 In this year M. Porcius Cato 
 and L. Marcius, tribunes of the plebs, carried a law which 
 threatened with punishment commanders who reported falsely 
 to the senate the number of the enemy killed and of citizens 
 lost, and required them within ten days after returning to the 
 city to give their oath before the urban quaestors that they had 
 transmitted correct reports. 3 For the year 60 must be men- 
 tioned the pretorian law of Q. Caecilius Metellus Nepos, which 
 abolished vectigalia in Italy, 4 and the tribunician rogation of L. 
 Flavius for granting lands to Pompey's veterans. The latter 
 failed through the disapproval of the senate. 6 Far more inter- 
 esting because of the procedure, though otherwise of little con- 
 sequence, was the tribunician rogation of Herennius of the same 
 year for transferring P. Clodius to the plebeian rank. The 
 subject has been considered in an earlier chapter. 6 
 
 The year of Caesar's consulship was one of unusual legisla- 
 tive activity. Resuming the agrarian policy of the Gracchi, 
 which had been undone by the statute of 11 1, 7 he promulgated 
 early in the year a bill for the distribution of lands, which ex- 
 
 1 Suet. Cues. 28. 3; Plut. Cat. Min. 17. 
 
 2 Schol. Bob. 310. These same magistrates established a penalty for violations of 
 the lex Caecilia Didia (Cic. Phil. v. 3. 8), whether by the law above mentioned or a 
 separate enactment cannot be determined. 
 
 8 Val. Max. ii. 8. 1. In 6z falls the unpassed bill of Q. Caecilius Metellus Nepos, 
 tribune of the plebs (cf. p. 437, n. 1), directing Pompey to come to the defence of 
 Italy against Catiline; Dio Cass, xxxvii. 43; Schol. Bob. 302. In the following year 
 (61) the consuls, M. Pupius Piso and M. Valerius Messala, proposed a resolution for 
 the appointment of a special commission to try Clodius on charge of having intruded 
 in a religious festival exclusively for women; Cic. Att. i. 13. 3; Mil. 5. 13; 22. 59; 
 27. 73; Ascon. 53; Suet. Cats. 6; Dio Cass, xxxvii. 46. The bill provided that the 
 jurors should not be drawn by lot in the usual way but appointed by the praetor; 
 Cic. Alt. i. 14. 1. It was withdrawn in favor of the plebiscite de religione for the 
 same purpose but more favorable to the accused, presented by Q. Fufius Calenus, and 
 accepted by the tribes; Cic. Att. i. 16. 2; Farad, iv. 2. 31; Plut. Cats. 10; Momm- 
 sen, Rom. Strafr. 198 f. 
 
 4 Dio Cass, xxxvii. 51. 3; Cic. Att. ii. 16. I; Q. Fr. i. I. II. 33; Lange, Rom. 
 Alt. iii. 274. These taxes were made unnecessary by Pompey's acquisitions in the 
 East. 
 
 6 Cic. Att. i. 18. 6; 19. 4; Dio Cass, xxxvii. 50; Plut. Cat. Min. 31. 
 
 6 P. 162. » P. 386. 
 
COMITIAL LEGISLATION, 82-30 439 
 
 empted the Campanian 1 and Stellatine 2 territory as well as that 
 of Volaterrae, which Sulla had confiscated without ejecting the 
 inhabitants. 3 As little other public land remained in Italy, the 
 bill ordered that money accruing from the sale of booty taken 
 by Pompey, and from the new revenues of the territory he had 
 won for Rome, be used for the purchase of lands from those 
 who were willing to sell at the values assessed in the last cen- 
 sus.* The beneficiaries were the needy citizens'and the veterans 
 of Pompey. 6 The lots assigned were to remain inalienable 
 twenty years. 6 The work of distribution was to be in the hands 
 of a board of twenty — vigintiviri 7 — which should not include 
 the author of the law. 8 A sub-committee of this large board 
 must have been the Vviri agris dandis adsignandis iudicandis, 9 
 who in the opinion of Mommsen 10 possessed the sole judicial 
 power connected with the work of distribution. As the senate 
 studiously delayed action on the measure, though unable to 
 offer any criticism, 11 Caesar without its sanction presented the 
 bill to the people. 12 Bibulus, his colleague, backed by three 
 tribunes of the plebs, not only protested against the bill, 13 but 
 resorted to sky-watching and the proclamation of festivals to 
 prevent its adoption. 1 * Disregarding this opposition, Caesar 
 with the support of Pompey and Crassus offered his rogation to 
 the tribes, 16 who accepted it with great enthusiasm. For the 
 remainder of his term he ignored the senate in all his legislation. 
 As to his other agrarian provisions, it is difficult to determine 
 whether they were attached to this rogation before its enact- 
 ment or formed a new bill. In favor of the second alternative 
 
 1 Dio Cass, xxxviii. I. 4. On the later inclusion of this territory, see p. 440 below. 
 
 2 Suet. Cats. 20. 8 Cic. Fant. xiii. 4. 2. 
 4 Dio Cass, xxxviii. 1. 4 f.; Cic. Dotn. 9. 23. 
 
 6 Dio Cass, xxxviii. 1. 3; App. B. C. ii. 10. 35; Plut. Cat. Mitt. 31; Pomp. 47; 
 Cic. 26. • App. B. C. iii. 2. 5; 7. 24. 
 
 7 Varro, R. R. i. 2. 10; Cic. Att. ii. 6. 2; 7. 3; ix. 2 a. 1; Veil. ii. 45. 2; Dio 
 Cass, xxxviii. 1. 6 {.; Suet. Aug. 4. s Dio Cass. ibid. 
 
 9 CIL. vi. 3826 (Elogium of M. Valerius Messala, consul in 61) ; Cic. Att. ii. 7. 
 4; Prov. Cons. 17. 41. 
 
 10 Rom. Staatsr. ii. 628, n. 4. u Dio Cass, xxxviii. 2. 
 
 12 Ibid. 3 f.; Plut. Cans. 14; App. B. C. ii. 10. 
 
 18 Dio Cass, xxxviii. 6. 1. M P. 1 16. 
 
 15 The assembly met in the Forum, and was therefore tribal; Suet. Cats. 20; Dio 
 Cass, xxxviii. 6. 2; Plut. Cat. Mitt. 32. 
 
440 THE ROMAN ASSEMBLIES 
 
 it is to be noticed in the first place that Cicero and others 
 mention Julian agrarian laws, 1 and that Cicero's expression 
 "Campanian lex" 2 could describe a measure relating to the 
 Campanian territory but not the whole group of agrarian pro- 
 visions of that year. Moreover although Cicero was acquainted 
 with the Julian rogation from the beginning of the year, 3 he did 
 not at Formiae hear of the inclusion of the Campanian territory 
 till near the end of April.* It might be assumed that after the 
 senate and Bibulus showed opposition Caesar modified the origi- 
 nal rogation before putting it to vote, but no mention is made 
 of an alteration. Finally Dio Cassius 5 and Plutarch 6 speak 
 distinctly of an earlier and a later law. 7 On the whole it seems 
 probable therefore that toward the end of April Caesar promul- 
 gated a second agrarian bill which provided for the distribution 
 of the Campanian and Stellatine lands among needy citizens, 
 preferably those who had three or more children. 8 The com- 
 plete execution of the law would dispose of all public lands in 
 Italy from which a revenue might be derived. An article re- 
 quired not only senators within a specified time to swear that 
 they would support the measures 9 but also candidates for office 
 
 1 Cic. Att. ii. 18. 2 : " Ut ex legibus Iuliis " seems to be official language. The 
 explanation of Marquardt, Rom. Staatsv. i. 114 f., which identifies one of the Julian 
 laws with the lex Mamilia, Roscia, etc., is not satisfactory, though accepted by Dru- 
 mann-Grobe, Gesch. Jloms, iii. 182. A plurality is also mentioned by Livy, ep. ciii; 
 Schol. Bob. 302; Plut. Pomp. 47 f.; Caes. 14; App. B. C. ii. 10-2. 
 
 a Att. ii. 18. 2. » Att- a, 3- 3 ( D ec go), g 2 . 7 . , 
 
 * Att. ii. 16. I. 5 XXXVIII. 1. 4; 7. 3. «Ca/. Min. 31, 33. 
 
 7 Lange, Horn. Alt. iii. 279-88, maintains that there were two agrarian laws; cf. 
 Ferrero, Rome, i. 287-91. The opposite view is held by Marquardt, Rom. Staatsv. i. 
 114 f.; Drumann-Grobe, Gesch. Roms, iii. 182. 
 
 8 Dio Cass, xxxviii. 7. 3; Cat. Min. 33; Suet. Caes. 20; Veil. ii. 44. 4. Whereas 
 Cicero was of the opinion that this district could provide not more than five thousand 
 with lots of ten iugera, Suetonius and Velleius state that twenty thousand were set- 
 tled in it. Some Campanian land remained undivided in 51; Cic. Fam. viii. 10. 4. 
 Many settlements under the Julian law are mentioned in the liber coloniarum, in 
 Gromat. 210, 220, 231, 235, 239, 259, 260. 
 
 It was in accord with Caesar's policy of colonization and of the extension of the 
 franchise that P. Vatinius, tribune of the plebs in this year, carried a law for sending 
 five thousand new settlers to Comum, a Latin colony in northern Italy. Some of 
 the new residents he honored with the citizenship; Strabo v. 16; Suet. Caes. 28; 
 App. B. C. ii. 26. 98; Plut. Caes. 29; Cic Att. v. 11. 2; Ram. xiii. 35. 1. The 
 franchise was afterward withdrawn by a decree of the senate; Suet and Plut. ibid. 
 
 9 Dio Cassius, xxxviii. 7. 1 f. (cf. Schol. Bob. 302; App. B. C. ii. 12. 42), is prob- 
 
COMITIAL LEGISLATION, 82-30 441 
 
 for the following year to give their oath in contio that they 
 would not propose any modification or repeal of them. 1 
 
 This statute was full of significance both in content and in 
 the manner of enactment : it set at defiance the senate and the 
 auspices ; it deprived the state of important revenues, increas- 
 ing correspondingly the financial burden on the provinces ; it 
 brought relief to many proletarians, while encouraging milita- 
 rism through a provision for Pompey's veterans. Ostensibly 
 democratic, it cemented and announced to the world the trium- 
 virate of Caesar, Crassus, and Pompey — a combination of 
 democratic, plutocratic, and military bossism, which proved 
 more dangerous to political liberty than had been the dictator- 
 ship of Sulla. The last great agrarian law of the republic con- 
 tained in itself a prophecy of the monarchy which its author 
 was soon to establish. 
 
 Because of the losses suffered in Asia in the recent war with 
 Mithridates, Caesar carried a law, also early in the year, for a 
 remission of a third of the sum due to the treasury from the 
 publicans of that province. As the senate had failed to pass a 
 measure of relief for the contractors of revenue, 2 the concession 
 from Caesar and the people served to alienate the feelings of 
 the knights from the optimates and to attach them to the ambi- 
 tious consul. 3 Next to the agrarian statute, however, the lex de 
 
 ably wrong in saying that death was the penalty for refusal to swear. Cicero (Sest. 
 28. 61) and Plutarch {Cat. Min. 32) speak simply of heavy penalties. 
 
 1 Cic. Att. ii. 18. 2. The provision regarding the oath was not introduced till it 
 was found that the senate opposed. 
 
 Supplementary to these Julian laws is the lex Mamilia Roscia Feducaea Alliena 
 Fabia, three articles of which are contained in Gromat. 263-6; Bruns, Font. lur. 
 96-8; Girard, Textes, 69 f. Other references to a lex Mamilia are Gromat. II. 5; 
 12. 12; 37. 24; 144. 19; 169. 7; Cic. Leg. i. 21. 55. The last proves it to have been 
 passed before 51. The seeming citation of the third article as an agrarian law of 
 Gaius Caesar by Dig. xlvii. 21. 3, may indicate merely a borrowing of this article 
 from the earlier law of Caesar, just as article 2 is substantially repeated in Lex Col. 
 Genet. 104. Mommsen, in Rom. Fcldmess. ii. 221-6; Rom. Staatsr. ii. 628, u. 4, 
 considers it the work of a second sub-committee (Vviri) of the vigintiviri provided 
 for by the agrarian law, enacted to furnish rules for the administration of the latter. 
 Lange (Rom. All. ii. 690; iii. 288) and more decidedly Willems (Sen. Rom. i. 498, 
 11. 5) prefer to regard it as a tribunician law and to assign it to 55. 
 
 2 Cf. Polyb. vi. 17. 5; p. 345 above. 
 
 3 Suet. Caes. 20; Dio Cass, xxxviii. 7. 4; App. B. C. ii. 13. 48; Cic. Att. ii. 16. 2; 
 Schol. Bob. 259, 261. 
 
442 THE ROMAN ASSEMBLIES 
 
 pecuniis repetundis was the most important piece of legislation 
 of his consulship. Comprising at least a hundred and one 
 articles, 1 including much material from earlier laws on extor- 
 tion, it dealt minutely with all the particulars of the offence, 
 procedure, and punishment so exhaustively as to render further 
 comitial legislation on the subject unnecessary. 2 It aimed to 
 protect alike citizens, provincials, and allies from every form 
 of misrule and oppression by the home and promagisterial 
 authorities. It regulated strictly the supplies due from the 
 provincials to the promagistrate and his ofncium, including 
 shelter and sustenance for man and beast. 3 Under this law 
 the governor was forbidden without an order from Rome to 
 conduct diplomatic business with foreign states, to wage war, 
 or to cross the boundary of his province, 4 or to demand of the 
 cities crown gold for a triumph not decreed by the senate. 5 On 
 retiring from his command he was to leave copies of his admin- 
 istrative accounts in two cities of his province and an exact 
 duplicate in the aerarium. 6 It provided further for the punish- 
 ment of corrupt accusers, jurors, and witnesses in cases under 
 the law. 7 A man convicted of the crime was fined and com- 
 pelled to restore extorted property ; and in case his estate did 
 not suffice to cover the loss, an investigation could be made as 
 to who had shared his gains. 8 He was also to be expelled from 
 the senate and banished. 9 The severity of the law is com- 
 mended by Cicero. 10 Caesar's legislation concerning extortion 
 was reenforced (i) by the judiciary law of P. Vatinius, tribune 
 of the plebs, of the same year, which granted to both accuser 
 and accused greater freedom in the rejection of jurors than had 
 been allowed by the corresponding law of Sulla, the terms of 
 
 1 Cic. Fam. viii. 8. 3. 
 
 2 Pompey in his second consulship, 55, attempted in vain to displace it by a still 
 severer measure; p. 448. * Cic. Att. v. 10. 2; 16. 3. 
 
 i Cic. Pis. 16. 37; 21. 49 f.; 37. 90; Dom. 9. 23; Prov. Cons. 4. 7. 
 6 Cic. Pis. 37. 90. 
 
 6 Cic. Att. vi. 7. 2; Fam. ii. 17. 2, 4; v. 20. 2, 7; Pis. 25. 61; cf. Plut. Cat. Min. 
 38; Dio Cass, xxxix. 23. 3. 
 
 7 Dig. xlviii. II. 8 cic. Rab. Post. 4. 8 f. ; 1 1. 30. 
 9 Suet. Caes. 43; Oiho, 2; Tac. Hist. i. 77; Paul. Sent. v. 28. 
 
 10 Vat. 12. 29. See further on the law, Sest. 64. 135; Schol. Bob. 310, 321; 
 Drumann-Grobe, Gesch. Poms, iii. 195-7; Lange, Rdm. Alt. iii. 292; Mommsen, 
 Rom. Strafr. 709; Greenidge, Leg. Proced. 427, 483, 485. 
 
COMITIAL LEGISLATION, 82-30 443 
 
 which however are not definitely known ; 1 (2) by a statute of 
 Q. Fufius Calenus, praetor in 59, which required the three 
 decuries to deposit their votes in three separate urns, the object 
 being to establish class responsibility. 2 The remaining comitial 
 acts of Caesar were merely administrative. As a favor to 
 Pompey, who in his eastern campaign had received support 
 from Ptolemy Auletes, king of Egypt, 3 Caesar in the beginning 
 of his consulship 4 carried a resolution for acknowledging the 
 latter as an ally and friend of the Roman people. 5 Later in 
 the year, to repay Pompey for his support of the agrarian 
 statute, Caesar secured against the will of the senate the enact- 
 ment of a law for confirming his ally's arrangements in the 
 East. 6 Lastly may be mentioned the lex curiata for the arroga- 
 tion of P. Clodius Pulcher proposed by Caesar in the capacity 
 of pontifex maximus, a measure considered in an earlier chap- 
 ter. 7 Clodius wished to qualify himself for the tribunate of the 
 plebs, and his design was aided by Caesar in the expectation 
 that he would occupy the attention of Cicero, the only strong 
 opponent of the triumviri. Caesar's immediate future was pro- 
 vided for by a plebiscite of his friend Vatinius, which granted 
 him Cisalpine Gaul and Illyricum as a province for five years 
 beginning March 1, 5c). 8 He was to have three legions 9 and to 
 name his own legati, who were to enjoy propretorian rank. 10 
 
 1 Cic. Vat. ii. 27; Plane. 15. 36; Schol. Bob. 235, 321, 323. "It is indifferently 
 described as a method of challenging alternate benches (consilia) and alternate 
 iudices"; Greenidge, Leg. Proced. 451. It seems to have permitted the rejection 
 not simply of individual jurors as heretofore, but of an entire panel; Drumann- 
 Grobe, Gesch. Poms, iii. 197. 
 
 s Dio Cass, xxxviii. 8. I; Schol. Bob. 235. 
 
 8 Pliny, JV. H. xxxiii. 10. 136; Joseph. Ant. Iud. xiv. 34 f. 
 
 4 Cic. Alt. ii. 16. 2. 
 
 5 Caes. B. C. iii. 107. 6; Suet. Caes. 54; Dio Cass, xxxix. 12. 1; Cic. Rab. Post. 
 3- 6. 
 
 6 Dio Cass, xxxviii. 7. 5; App. B. C. ii. 13. 46; Plut. Lucull. 42; Pomp. 48; 
 Veil. ii. 44. 2; Lange, Rom. Alt. iii. 289; Drumann-GrSbe, Gtsch. Roms, iii. 194. 
 Several other laws on foreign affairs, having especial reference to treaties, were 
 proposed and carried by P. Vatinius, tribune of the plebs in this year, acting proba- 
 bly as Caesar's instrument; Cic. Vat. 12. 29; Fam. i. 9. 7; Att. ii. 9. 1. 
 
 7 P. 163. 
 
 8 Dio Cass, xxxviii. 8. 5; Suet. Caes. 22; Cic. Sest. 64. 135; Vat. 15. 35 f.; Prov. 
 Cons. 15. 36; Caes. B. G. ii. 35. 2; iii. 7. I; v. I. 5. 
 
 9 Caes. B. G. i. 10. 10 Caes. B. G. i. 21. 
 
444 THE ROMAN ASSEMBLIES 
 
 The senate, which had looked unwillingly upon these proceed- 
 ings, now added Comata and a fourth legion, partly because of 
 the conviction that in the face of an imminent war with the 
 Helvetians no one would be willing to take that province with- 
 out Cisalpina as a support, and partly through fear lest the 
 popular party might gain the additional credit of bestowing it. 1 
 In one respect the position was far better than that held by 
 Pompev in the East : while winning prestige in a popular con- 
 quest 3 and attaching to himself a powerful army, Caesar would 
 be near enough to Rome to control the political situation. 3 Intel- 
 lectual brilliancy would serve in place of experience. In fact, 
 in addition to maintaining the position of democratic boss of 
 Rome, the outlook seemed to him favorable for wresting from 
 his fellow-triumvir the sceptre of the military monarch.* 
 
 P. Clodius Pulcher, tribune of the plebs in 5$, seems to 
 have worked partly as an agent of Caesar for the more com- 
 plete organization of democracy, and partly from motives of 
 personal hatred for Cicero. He first proposed a frumentarian 
 plebiscite, which provided for the absolutely free distribution 
 of grain monthly among the citizens resident in Rome. 3 In 
 vain the optimates complained that the abolition of the existing 
 price, which was that prescribed by the Sempronian law,* 
 
 1 Suet. Cats. 22: Dio Cass. xxxvui. 8. 5; Pint Cats. 14: &»rtp. 4S: Crass. 14: 
 Cat. Min. 33. The resolutions of people and senate are combined by App. B. C. 
 ii. 13. 49; Veil, n. 44. 5; Zon. x. 6; cf. Drumann-Grobe, Gesdt. Rairts^ in. 198 £. 
 
 2 Cf. Ferrero, Rcrme, i. 290. s Dramans-Grobe, ibid. 
 
 4 On the consulship of Caesar see farther Long, Rom. Rep. III. ch_ m; Larrge, 
 Ram. Alt. in. 278-96; Herzog, Ram. Staatsverf. i. 550—3; Drumann-Grobe, GsaA. 
 Rams, fit 177 ft; the histories of Mommsen, Peter, Ferrero, etc., and the various 
 biographies of Caesar. 
 
 5 Cic. &s£. 25. 55 ; Dto Cass, xxxvin. 13, I; Ascon. 9; SchoL Bob. 300 ft 
 
 6 Six and a third asses to the modius; p. 5-2. The frumentarian law of Appu- 
 leios Satnrnlnos for lowering the price to five-sixths of an as had been assailed 
 (p. 395 f.1. and the law in force in Si whether the Sempronian or the Octavian. 
 was repealed by Sulla (p. 422) . Lepidns, consul in 7S, carried a law for the dis- 
 tribution of Eve mods of grain to the citizen, at what price and at what interval is 
 not stated (p. 423, n. S' . There was also a lex frumentaria of the consols of 73. C. 
 Cassias Varus and >I. Terentius Varro (Cic. Verr. m. 70. 163; v. 21. ;2: cf. SalL 
 Jifzsf. iii. 4S. 19). It must have restored, or maintained, the Sempronian pricev 
 which according to the sources was displaced by the Clodias provision for free grain. 
 Probably by an. article of this law, rather than by a new enactment, Sex. Clodius, a 
 dependent of the tribune, was given charge of the distribution; Cic. Zfew. 10. 25. 
 See further Humbert, is Daremberg et Sagtio, Diet. 5. 1346 f. 
 
COMTTCAL LEGISLATION, 82-30 445 
 
 would rob the treasury of nearly a fifth of its income. 1 Ac- 
 cepted by the tribes, the law proved a most effective means of 
 ma in taming a numerous mob of proletarians ever present and 
 willing to vote for the measures of their political patrons, the 
 leaders of the democracy. A closely related plebiscite per- 
 mitted the free organization of clubs (collegia "J. 2 which a sena- 
 tus consultum of 64 had strictly limited, 8 but which now 
 became an active part of the democratic organization.* His 
 legislation, however, was not utterly devoid of statesmanship. 
 A third act, by repealing those articles of the Aelian and 
 Fufian statutes which applied obnuntiations to law-making 
 assemblies, deprived the nobility of their most effective means 
 of controlling legislation. 5 An article of the same statute de- 
 clared all dies fasti available for legislation* This measure 
 went far toward abolishing a usage which had made religion a 
 mockery and pubic life a farce. To limit the arbitrary power 
 of the censors, Clodius enacted through a plebiscite that these 
 magistrates should place their stigma upon those only whom 
 they had jointly condemned after having heard sufficient testi- 
 mony.' Another comitial act prohibited the secretaries of the 
 quaestors from engaging in business in the provinces. 8 The 
 last three statutes mentioned were useful reforms. His most 
 famous measure was the law which prescribed the penalty of 
 interdict from fire and water for any one who had put to death 
 a Roman citizen without trial* Strengthening the Sempronian 
 law of appeal, 1 * it forced the party issue as to the question 
 whether that act could apply to persons accused of having 
 attempted to overthrow the state. The optimates contended 
 that such persons were no longer citizens but enemies 
 and hence outside the pale of law 11 — a principle which the 
 
 1 Gc -Sii 25. yj. 
 
 - Gc flAL; Jlai. it Sat. 13. 33; Dk> Cas. mr5L 13. 1 1; Pint Gc JO. 
 
 * Gc. Pis. j- 9; Sat. 2i- ; ; : Ascoo. 9, 67 : Dio Cas. mm 13. 2 : Liebenun, 
 JSmt. Verdmsmez. 21 : Wa_:32£. Crry. ~nf. i. 92. 
 
 * CL Ferrer:. Xrwe, i. 300. s P. H-. 
 « Gc- Sat. 15. 33; p. 47»- 
 
 T Ascon.9: Dio Gas. xxxrm. I J. 2: SchoL Boh. 300; c£ Gc Pis. 4. 9; Szi. 25. 
 5 j. *5^ecZW.9.5: lxnge, fit. A± m. 30&. 
 
 " »YeDL 5. 4;. I; Lhy. er.cm; Dio Gas. nnS. i^_ a; Phi. C:.: 30; c£ Drm- 
 Esn=-jr:bc, Gesak. P.:ms, fi. 20S C -* P. 37 1 - 
 
 n We -ear but echoes at this tboxv in the sprrrhrs of Cicero which refer to the 
 
446 THE ROMAN ASSEMBLIES 
 
 populares held to be destructive of liberty. From a demo- 
 cratic point of view the Clodian law was just and necessary ; 
 but unfortunately Cicero, who in putting to death the as- 
 sociates of Catiline had simply acted for the senate, was to be 
 made the scapegoat. Fearing condemnation under the law, 
 Cicero voluntarily retired into exile, whereupon a new plebi- 
 scite declared the interdict to be legally in operation. 1 In the 
 following year he was recalled with great enthusiasm by a 
 resolution of the comitia centuriata proposed by the consuls 
 P. Cornelius Lentulus and Q. Caecilius Metellus. 2 The same 
 magistrates were authors of a law for conferring upon Pompey 
 the care of the grain supply, which he was to administer five 
 years with unlimited proconsular imperium. 3 In spite of such 
 
 Catilinarian conspiracy; cf. Cat. ii. 2. 3; 8. 17; iv. 5. 10 (admitted by C. Caesar) ; 
 7. 15 ; 10. 22. 
 
 1 This act accorded with earlier usage ; p. 249, 267, 395. On the original roga- 
 tion of Clodius concerning the exile of Cicero and its amendment, see Gurlitt, in 
 Philol, N. F. xiii (1900). 578-83; Sternkopf, ibid. 272-304; xv (1902). 42-70. See 
 also Mommsen, Rom. Strafr. 970, u. 2, 978, 11. I. 
 
 The remaining Clodian laws may pass with briefer mention: (1) A plebiscite 
 which converted the kingdom of Cyprus into a province, confiscated the property of 
 the reigning king, and commissioned Cato to bring the treasury of the latter to 
 Rome; Livy, ep. civ; Cic. Dom. 8. 20; Sest. 26. 57; 27. 59; Schol. Bob. 301 f.; 
 Dio Cass, xxxviii. 30. 5; App. B. C. ii. 85 f. — (2) The plebiscite de inuriis publicis, 
 the terms of which are not known; Cic. Dom. 30. 81. — (3) The plebiscite which 
 transferred the title of king and the priesthood of the Great Mother at Pessinus from 
 Deiotarus to his son-in-law Brogitarus; Cic. Sest. 26. 56; Har. Resp. 13. 28 f.; 27. 
 59 ; Dom. 50. 129; Q. Fr. ii. 7. 2; Lange, Rom. Alt. iii. 308; Niese, in Pauly- 
 Wissowa, Real-Encycl. iv. 2401-4. — (4) The plebiscite de provinciis and (5) de 
 permutatione provinciarum, which assigned to the outgoing consuls of the year 
 provinces according to their desires; Cic. Sest. 25. 55; Dom. 9. 23 f.; 26. 70; Prov. 
 Cons. 2. 3; Plut. Cic. 30; (Aurel. Vict.) Vir. III. 81. 4. There were, too, several 
 unpassed rogations. In general on Clodius and his legislation, see Lange, ibid. 296 ff.; 
 Long, Rom. Rep. III. ch. xxi; Drumann-Grobe, Gesch. Roms, ii. 202 ff.; Froh- 
 lich, in Pauly-Wissowa, Real-Encycl. iv. 82-8; White, Cicero, Clodius, and Milo, 
 16 ff. 
 
 2 Cic. Dom. 33. 90; Pis. 15. 35 f.; Red. in Sen. II. 27; p. 127 above. Among 
 the tribunician rogations for the purpose, preceding the enactment of the centuriate 
 law, were the Ninnia (Dio Cass, xxxviii. 30. 4; Cic. Sest. 31. 68), the Messia (Cic. 
 Red. in Sen. 8. 21), that of eight tribunes (Cic. Sest. 33. 72; Pis. 15. 35; Fam. i. 9. 
 16), and the Fabricia (Cic. Red. in Sen. 8. 22; Mil. 14. 38). The last was pro- 
 posed early in 57; the others near the end of 58. 
 
 8 Cic. Att. iv. I. 7; Livy, ep. civ; Dio Cass, xxxix. 9. 2 f.; Plut. Pomp. 49; App. 
 B. C. ii. 18. 67. 
 
 In 56 a rogation of C. Porcius Cato, tribune of the plebs, for abrogating the pro- 
 
COMITIAL LEGISLATION, 82-30 447 
 
 efforts to prop up his power in order to counterpoise that of 
 Caesar, the latter through the prestige of his brilliant victories 
 in Gaul and the liberal use of money in the capital far out- 
 shone his fellow-triumviri. The only hope for their ambition 
 was to be found in the good will and favor of the great pro- 
 consul. As the result of the conference held by the triumviri 
 at Luca, 56, Pompey and Crassus were elected to a second 
 consulship for 55 through the votes of Caesar's soldiers, who 
 were given a furlough to attend the comitia held purposely late 
 in the year. 1 As proconsuls Pompey and Crassus were to be 
 given advantageous commands, and Caesar was to receive as 
 his reward a prolongation of his governorship. 2 Subservient 
 tribunes were found to propose the desired measures, and it had 
 long been an easy matter to obtain a majority in favor of any 
 conceivable bill. C. Trebonius drew up a law for granting 
 Syria to Crassus and the two Spains to Pompey for a period 
 of five years, with a dispensation for both from that article of 
 the lex Iulia repetundarum which forbade promagistrates of 
 their own free will to declare war. 3 The intercessions of trib- 
 unes and all other opposition were violently overborne, and the 
 rogation was readily accepted by the people. 4 Thereupon the 
 two consuls secured the passage of an act for extending Cae- 
 sar's command. 5 
 
 Notwithstanding the fact that these consuls had been elected 
 with the help of the clubs organized under the Clodian law of 
 58, they must have felt such associations to be a menace to 
 themselves as well as to the public peace. Crassus accordingly 
 
 consular imperium of P. Cornelius Lentulus failed to become a law (Cic. Q. Fr. ii. 
 3. I; Fam. I. 5 a. 2); also the rogation of his colleague L. Caninius for com- 
 missioning Pompey with pretorian power for the purpose of restoring Ptolemy, the 
 exiled king of Egypt, to his throne; Dio Cass, xxxix. 12 ff.; Cic. Q. Fr. ii. 2. 3; 
 Plut. Pomp. 49. 
 
 1 An interregnum was forced in order to secure a more favorable chairman for the 
 elections than were the consuls of 56. 
 
 2 Plut. Cats. 21; Pomp. 51; Crass. 14; Cat. Min. 41; App. B. C. ii. 17. 62 f. 
 The postponement of the comitia was effected by C. Porcius Cato (Dio Cass, xxxix. 
 27. 3; Livy, ep. cv; Cic. Q. Fr. ii. 4. 6) and a colleague in the tribunate (Cic. Att. 
 iv. 15. 4). 
 
 • Cic. Att. W: 9. I; Dio Cass, xxxix. 33. I f.; Plut. Cat. Min. 43; Crass. 15; 
 Pomp. 52; App. B. C. ii. 18. 65; Livy, ep. cv; Vell.ii. 46. 1 f.; p. 442 above. 
 
 4 Dio Cass, xxxix. 34 f.; Plut. and Livy, ibid. 6 Dio Cass, xxxix. 33. 3 f. 
 
448 THE ROMAN ASSEMBLIES 
 
 carried through the assembly a lex de sodaliciis, which increased 
 the penalty for ambitus committed through the agency of clubs. 1 
 It also ordered that the jury in such cases be made up by the 
 accuser from any four tribes he should choose, however unfa- 
 vorable they might be to the accused, 2 who had merely the right 
 to reject one of the four tribal decuries thus presented, 3 in so 
 far as the court itself did not grant him the further privilege of 
 rejecting individuals. 4 It is difficult to understand how impar- 
 tial justice could be administered under such a law. But no 
 further legislation concerning ambitus was attempted till 52, 
 when Pompey in his third consulship carried a statute which 
 increased the penalty for the offence and made the procedure 
 more strict. 5 The attention of Pompey in his second consul- 
 ship was directed rather to other classes of crimes. First he 
 had a statute adopted concerning parricide (the murder of a 
 near relative or patron), which hitherto had been provided for 
 by the Cornelian lex de sicariis et veneficis. 6 His project for 
 displacing the lex Iulia repetundarum by a statute which should 
 make the non-senatorial class specifically responsible failed to 
 become a law. 7 A sumptuary rogation for restricting personal 
 expenditure he voluntarily withdrew on the advice of Horten- 
 sius, who persuaded him that luxury and delicacy of life were 
 but the fitting adornments of empire. 8 His lex iudiciaria or- 
 dered the urban praetor to begin the selection of jurors from 
 the wealthiest of each of the three classes, and thence to de- 
 scend gradually to the poorer members, the object being to 
 make the composition of the courts as aristocratic as the terms 
 of the Aurelian statute of 70 would allow. 9 The lex de vi of 
 
 1 Dio Cass, xxxix. 37. I. 2 q C- pi anc , r j_ 3 g. jg. 40 . jy_ 4 ,_ 
 
 8 Ibid. 15. 36 ff.; Schol. Bob. 253 f., 261. 
 
 * Cic. Plane. 16. 40; Schol. Bob. 262; Lange, Rom. All. Hi. 340 f. 
 6 Cic. Att. x. 4. 8; xiii. 49. 1; App. B. C. ii. 23. 87; Dio Cass. xl. 52. 3; 55. 2; 
 Plut. Cat. Min. 48; Pomp. 55. 
 
 6 Paul. Sent. v. 24; Dig. xlviii. 9; cf. i. 2. 2. 2. 32, which is inexact; Lange, Horn. 
 All. ii. 667. 
 
 7 Cic. Rab. Post. 6. 13. As the equites did not participate in the government of 
 Italy and the provinces, they had not been rendered liable to the earlier leges repe- 
 tundarum, although it was possible to bring action against them for corrupt jury 
 service; cf. p. 378, n. 3. s jjio Cass, xxxix. 37. 
 
 9 Cic. Pis. 39. 94 ; Phil. i. 8. 20; Ascon. 16; Pseud. Sail. Rep. Ord. ii. 3. 2 f.; 
 cf. 7. 11 f.; 12. 1 ; cf. Greenidge, Leg. Proced. 448. 
 
COMITIAL LEGISLATION, 82-30 449 
 
 his third consulship, 52, was merely for the appointment of a 
 special commission to try those who were accused of having 
 murdered Clodius, burned the Curia, and besieged the house of 
 the interrex M. Aemilius Lepidus. It determined the composi- 
 tion of the court and the penalty to be inflicted. 1 Of his stat- 
 ute de iure magistratuum, passed in the latter year, that article 
 only is known which reiterated the law of 63 for prohibiting 
 candidacies in absentia. But as a plebiscite had been passed 
 earlier in the year to dispense Caesar from the law of 63, 2 and 
 as Pompey did not dare antagonize him by abolishing the plebi- 
 scite here mentioned, he secured the adoption of an additional 
 law for excepting such candidates as had been or should be dis- 
 pensed by comitial action. 3 But Caesar's prospect of passing 
 immediately from his Gallic command to a second consulship 
 was more effectually blocked by Pompey's lex de provinciis, 
 which, embodying a senatus consultum of the previous year, 4 
 ordered that five years should intervene between the expiration 
 of a magistracy and the beginning of the corresponding pro- 
 magistracy. 6 The general purpose was to dampen the ardor of 
 the ambitious, who sought praetorships and consulships merely 
 as a stepping-stone to lucrative and influential commands in the 
 provinces. Its immediate effect, however, was to precipitate 
 the conflict between Caesar and Pompey which brought the 
 republic to ruin. The relation of the law to this event requires 
 explanation. In the Pompeian-Licinian act of 55 for prolong- 
 ing Caesar's command measures were taken that the senate 
 should not discuss the question of succession to him before 
 March 1, 50. According to the Sempronian law, 6 therefore, 
 the senate could assign his provinces to no consuls earlier than 
 those of 49 ; hence Caesar would continue in command during 
 that year while suing for the consulship for 48. But by the 
 Pompeian law of 52 the Sempronian was abolished, and the 
 
 1 Cic. Mil. 5. 13; 6. 15; 26. 70; 29.79; Ascon. 31 ff., 37, 40, 53; Schol. Bob. 
 276; Schol. Gronov. 443; Gell. x. 20. 
 
 2 Cic. Att. vii. 1. 4; 3.4; viii. 3. 3; Fam. vi. 6. 5; xvi. 12. 3; Phil. ii. 10. 24; 
 Suet. Cats. 26 ; Caes. B. C. i. 32; Dio Cass. xl. 51. 2. 
 
 8 Dio Cass. xl. 56. 1; Suet. Caes. 28. 3. 
 
 4 Dio Cass. xl. 46. 2. 
 
 6 Ibid, and 56. 1; cf. 30. 1. 
 
 6 P. 381. 
 
 2G 
 
450 THE ROMAN ASSEMBLIES 
 
 senate was given an opportunity to appoint a successor to him 
 on or after March i, so. 1 
 
 From the close of the second consulship of Pompey to the 
 beginning of Caesar's dictatorship there was no important legis- 
 lation. 2 
 
 III. The Decline of the Republican Comitia 
 
 From 49 to about 30 
 
 With the dictatorship of Caesar begins the last stage in the 
 life of the republican comitia. For them it was from the begin- 
 ning of his supremacy essentially a time of decline. Although 
 Caesar continued to submit his plans to the assemblies for legal- 
 ization, he rapidly concentrated in his own person powers and 
 functions hitherto exercised by the people ; and the triumviri, 
 his successors, after a sham-republican interregnum, constituted 
 in law as well as in fact a three-headed despot. Mention will 
 first be made of the comitial acts which conferred powers and 
 honors on Caesar during his life. In 49 when news of his suc- 
 cess in Spain reached Rome, M. Aemilius Lepidus, a partisan 
 who was then urban praetor, persuaded the tribes to adopt a 
 resolution empowering the author to name Caesar dictator. 8 
 
 1 Hirschfeld, in Klio, iv (1904). 76-87; Drumann-Grobe, Gesch. Roms, Hi. 720 ff. 
 
 2 It suffices to mention ( 1 ) the unpassed bill of C. Lucilius Hirrus and M. Coelius 
 Vinicianus, 53 (in rivalry with a tribunician rogation for the establishment of tribuni 
 militum consulari potestate), to name Pompey dictator; Cic. Fam. viii. 4. 3; Q. Fr. 
 iii. 8. 4; Plut. Pomp. 54. — (2) The repeal of the Clodian plebiscite of 58 concern- 
 ing the censorial stigma (p. 445) by a law of Q. Caecilius Metellus, colleague of 
 Pompey in 52; Dio Cass. xl. 57. 1. — (3) The unpassed bill of the famous P. Clodius, 
 praetor in 52, concerning the suffrage of the libertini — somewhat similar to the Ma- 
 nilian law of 67 (p. 433) ; Ascon. 52; Schol. Bob. 346. — (4) Possibly a lex Scribo- 
 nia de usucapione servitutum was the work of C. Scribonius Curio, tribune in 50, 
 though more probably it belongs to an earlier date; p. 424, n. 4. — (5) An unpassed 
 alimentary rogation of the same Scribonius for ordering the aediles to control the 
 weights and measures of the markets in a way to give justice to the poor ; Cic. Fam. 
 viii. 6. 5; App. B. C. ii. 27. 102. — (6) Another unpassed Scribonian bill for limiting 
 the travelling expenses of senators; Cic. Ait. vi. 1. 25. — (7) An unpassed Scribo- 
 nian bill concerning the Campanian land; Cic. Fam. viii. 10. 4. — (8) An unpassed 
 Scribonian rogatio viaria, like the agrarian rogation of Servilius Rullus (p. 435); 
 Cic. Fam. viii. 6. 5. — (9) An unpassed Scribonian bill for confiscating the realm of 
 King Juba; Caes. B. C. ii. 25; Dio Cass. xli. 41. 3. One or two other unpassed 
 bills of the same tribune are still less important. 
 
 8 Dio Cass. xli. 36. 1 f.; Caes. B. C. ii. 21; App. B. C. ii. 48. 196; Plut. Caes. 37. 
 
COMITIAL LEGISLATION, 82-30 451 
 
 Entering upon this office after his return to Rome, about the 
 end of November, Caesar used it to secure the ratification of 
 laws — to be considered hereafter — and to hold the electoral 
 comitia. After eleven days he resigned. At this election he 
 was chosen consul with P. Servilius Vatia as colleague. 1 About 
 the middle of October, 48, when the senate and people heard of 
 the death of Pompey, they conferred on him by law(i) absolute 
 judicial authority over the partisans of Pompey, 2 (2) the right 
 to make peace and war at his own pleasure, the pretext being 
 the development of opposition to him in Africa, (3) the right to 
 be candidate for the consulship five years in succession, 3 (4) the 
 dictatorship for an indefinite period, to which he was appointed 
 by his colleague in the consulship, 4 (5) the tribunician authority 
 for life, with the privilege of sitting with the tribunes, (6) the 
 right to preside at the election of all patrician magistrates, for 
 which reason the comitia were postponed till his return to the 
 city, (7) the right to assign the pretorian provinces according to 
 his own judgment, (8) the right to triumph over Juba, king of 
 Mauretania, though at that time he did not know there was to 
 be a war with that state. 6 Near the end of April, 46, when 
 news came of the victory at Thapsus, the Romans granted him 
 (1) the censoria potestas with the title of praefectus morum for 
 three years, (2) the annual dictatorship for ten years, (3) the 
 right to nominate candidates for both ordinary and extraordi- 
 nary offices. These powers were doubtless conferred by comitial 
 action. At the same time great honors were heaped upon him, 
 probably through senatus consulta. 6 Again in April, 45, after 
 the battle of Munda honors were showered on him in still 
 greater profusion. 7 Politically the most important were the 
 lifelong, hereditary title of imperator, which he bore as a second 
 
 1 Caes. B. C. iii. 2; App. B. C. ii. 48. 196 f.; Plut. Cats. 37. 
 
 2 Here seems to belong the plebiscite of A. Hirtius concerning the partisans of 
 Pompey (Cic.Phil. xiii. 16. 32; CIL. i. p. 627 {.; Willems, Sen. Rom. i. 592), though 
 Mommsen (CIL. 1. c.) assigns it to 46. 8 Dio. Cass. xlii. 20. 
 
 * Ibid. 21. That his appointment was for an indefinite time, not for a year as 
 Dio Cassius, ibid. 20, states, is proved by CIL. i. 2 p. 28, 41. He held the office till 
 news of the victory at Thapsus reached Rome. s Dio Cass. xlii. 20. 
 
 6 Dio Cass, xliii. 14 ; cf. Drumann-Grobe, Gesch. Roms, iii. 48 f. 
 
 7 Dio Cassius, xliii. 42-6, describes them at great length, whereas Suetonius, Caes. 
 76, is content with a brief enumeration. 
 
452 THE ROMAN ASSEMBLIES 
 
 cognomen, 1 the sole right to command soldiers and to manage 
 the public funds, the privilege of being consul ten years in suc- 
 cession (which he did not use), the prefecture of morals and the 
 dictatorship for life, and finally deification under the title of the 
 " Invincible God." 2 In fact for the remainder of his life there 
 was no cessation in the bestowal of divine and human honors. 
 Among those of his last year were the tribunician sanctity 3 and 
 the right to have as many wives as he pleased — the latter 
 granted by a plebiscite of C. Helvius Cinna. 4 The theocratic 
 monarchy which the Romans were erecting for him on the ruins 
 of the republic left no independence to the senate or the assem- 
 blies. The functions of the latter were especially abridged by 
 the large power of nominating and appointing officials possessed 
 by the monarch. 5 His important legislative plans, however, he 
 brought before the people, preferably in their tribal comitia. 
 
 In December, 49, after returning from Spain, Caesar sought 
 to relieve somewhat the distress of debtors and at the same time 
 to quiet the general fear that he might decree a cancellation of 
 all debts. 6 This object he accomplished through a law, (1) that 
 interest already paid should be deducted from the principal, 
 (2) that the property of the debtor should be taken in payment 
 of the balance — not at the low values then existing, but on the 
 basis of ante-bellum prices, (3) that no one should hoard more 
 than fifteen thousand denarii in cash. 7 The third article was a 
 renewal of an old law. 8 Another statute, 9 47, released from a 
 
 1 Dio Cass, xliii. 44 ; CIL. ix. 2563 ; cf. Mommsen, Rom. Slaatsr. ii. 767, n. I. 
 
 2 The right to the consulship was granted according to Dio Cassius, xliii. 45. I 
 (rpoexciplvavro), by a vote of the people. In general it is impossible to determine 
 which senatus consulta for conferring these and future honors were ratified by the 
 comitia. The perpetual dictatorship was assumed February, 44; Drumann-Grobe, 
 Gesch. Roms, iii. 739. s Dio Cass. xliv. 5. 3. 
 
 4 Ibid. 7. 3; Suet. Cats. 52. 3. Two laws of the consul M. Antonius were also 
 enacted in his honor, the first changing the name of the month Quinctilis to Julius 
 (Macrob. Sat. i. 12. 34), the second dedicating to Caesar the fifth day of the Roman 
 games (Cic. Phil. ii. 43. no). 
 
 6 Cf. Bondurant, Dec.Jun. Brut. 40. 6 Caes. B. C. iii. I; Cic. Att. vii. II. I. 
 
 7 Caes. B. C. iii. I; Suet. Cats. 42; Dio Cass. xli. 37 f.; App. B. C. ii. 48. 198; 
 Hut. Caes. 37. Possibly the lex Iulia de bonorum cessione (Gaius iii. 78; Theod. 
 Cod. iv. 20; Justin. Cod. vii. 71. 4) may be identical with this law. 
 
 " Dio Cass. xli. 38. 1 f.; Cic. Att. ix. 9. 4. 
 
 8 Agitation leading to this measure found expression in a rogation of M. Caelius 
 Rufus, praetor in 48, for the payment of debts in six years without interest (Caes. 
 
COMITIAL LEGISLATION, 82-30 453 
 
 year's rent tenants of houses in Rome which brought the owner 
 more than 2000 sesterces or of houses outside the city which 
 earned more than 500. 1 These houses were private property, 
 and the law was therefore a partial abolition of private debts. 2 
 Such prosperity came that in another year, 46, Caesar found it 
 possible to cut down the number who received free grain from 
 320,000 to iSO.ooo. 3 He provided for the surplus population 
 as well as for his veterans by colonies in Gaul, Spain, Africa, 
 Macedonia, Greece, and Asia. 4 Eighty thousand citizens found 
 homes in these provincial settlements. 6 
 
 Among Caesar's most admirable traits was his liberality in 
 restoring to their civil rights those who were under disfranchise- 
 ment and in granting the citizenship to aliens. At his suggestion 
 M. Antonius, tribune of the plebs in 49, secured the enactment 
 
 JB. C. iii. 20) and somewhat later in a rogation for an extensive, perhaps complete, 
 abolition of debts (Caes. B. C. iii. 21; Livy, ep. cxi; Veil. ii. 68. I f.; Dio Cass. xlii. 
 22-5) ; in a rogation of P. Cornelius Dolabella, tribune of the plebs in 47, for the 
 complete abolition of debts (Livy, ep. cxiii; Plut. Ant. 9; Dio Cass. xlii. 29. 32); 
 and in rogations by these two officials respectively for the remission of rents (treated 
 by the sources in connection with their bills on insolvency). 
 
 1 Suet. Caes. 38; Dio Cass. xlii. 51. 1. 
 
 2 On the similar measure of Octavianus, see p. 459. See also Lange, Rom. Alt. 
 ii. 694; iii. 435. 
 
 8 This measure seems to have been brought about by no law but merely through 
 his censorial power; Lange, Rom. Alt. iii. 448; Drumann-Grobe, Gesch. Roms, 
 
 i"- 557- 
 
 4 A Julian colonial law is mentioned by Lex Col. Genet. 97. The veterans were 
 settled in Italy probably under the agrarian law of 59; Suet. Caes. 81. 1. The known 
 colonies founded under the dictatorial law are included in Kornemann's list, in 
 Pauly-Wissowa, Real-Encycl. iv. 524 ff.; cf. Drumann-Grtibe, Gesch. Roms, iii. 604-6. 
 His most famous colonies were Carthage (App. Lib. 136; Dio Cass, xliii. 50. 3 f.; 
 Plut. Caes. 57; Strabo xvii. 3. 5) and Coiinth (Dio Cass. ibid. § 4; Plut. ibid.; 
 Strabo viii. 6. 3; xvii. 3. 15; Paus. ii. I. 2; 3. 1). The colonia Genetiva Iulia Urba- 
 norum in Spain was founded in 44 after the death of Caesar, but iussu C. Caesaris 
 diet. imp. et lege Antonia senat(us)que c(onsulto) pl(ebi)que (scito) — by a con- 
 sular law of Antonius for the founding of the colony, supplemented by a plebiscite of 
 unknown authorship. 
 
 The inscription known as the lex Coloniae Genetivae Iuliae (C7Z. ii. supplb. 5439; 
 Bruns, Font. Iur. 123-40; Girard, Textes, 87-103) is a part of the lex data (§ 67), 
 or charter, granted the colony by its founder. It was called Urbanorum because it 
 was made up of proletarians from Rome; cf. Kornemann, ibid. 527. 
 
 6 Suet. Caes. 42. At the same time measures were taken to prevent those resi- 
 dents of Italy who were liable to military service from absenting themselves unduly 
 from the country. To give employment to the poor, the owners of herds were 
 ordered to make up one-third of their shepherds from freemen; ibid. 
 
454 THE ROMAN ASSEMBLIES 
 
 of a plebiscite for restoring the ius honorum to the children of 
 those whom Sulla had proscribed. 1 Near the end of the same 
 year, also at his request, the praetors and tribunes brought 
 before the people and carried proposals for the recall of certain 
 persons who had been exiled, unjustly as he believed, under the 
 Pompeian law on ambitus. 2 It was further at his suggestion 
 that L. Roscius, probably praetor, enacted a comitial law for 
 granting the citizenship to the Transpadani who at this time 
 possessed simply the ius Latii. 3 Another law of unknown 
 authorship confirmed the grant of the franchise already made 
 on his own responsibility to the people of Gades. 4 
 
 Among his administrative improvements was the increase in 
 the number of praetors from eight to ten 6 in 47, for which a 
 comitial statute may be assumed. 6 The people surrendered to 
 
 1 Dio Cass. xli. 18. 2; xliv. 47. 4; Hut. Cars. 37; Suet. Caes. 41; cf. Lange, 
 Rom. All. iii. 416. 
 
 2 Caes. B. C. iii. 1 ; cf. Suet. Caes. 41. 
 
 8 Cic. Phil. xii. 4. 10; Tac. Ann. xi. 24; Dio Cass. xli. 36. 3; cf. xxxvii. 9. 3-5. 
 Mommsen, Rom. Staatsr. iii. 134; 159, n. 1; Kriiger-Brissaud, Sourc. d. droit Rom. 
 97, for the authorship of the law. 
 
 The so-called lex Rubria de Gallia Cisalpina (CIL. i. 205 = xi. 1 146; Brans, Font, 
 fur. 98-102; Girard, Textes, 70-76) seems to be a lex data, probably of 49 [Momm- 
 sen, in Wiener Studien, xxiv(i902). 238 f.; Ephem. Ep. ix. 1903. p. 4]. As the 
 lex Rubria cited in § 20 is not this document but an earlier plebiscite, the name 
 of the author has not been determined. It regulated the administration of justice in 
 Cisalpina, which remained a province till 42. The fragment of a law found at Ateste 
 (Bruns, ibid. 102 f. ; Girard, Textes, 76-8) is of the same nature and belongs to the 
 same period, though probably not to the Rubrian law itself, as Mommsen {Hermes, 
 xvi. 24-41) once assumed. 
 
 4 Dio Cass. xli. 24. I ; cf. Livy, ep. ex. The monarchical quality of his rule shows 
 itself in his bestowal of the citizenship on individuals at his own pleasure; cf. 
 Mommsen, Rom. Staatsr. iii. 134. 
 
 In 44 the lex Iulia de Siculis, published by Antonius after the death of Caesar, 
 gave the full citizenship to the Sicilians, who had received the Latinitas from Caesar. 
 This law, Antonius asserted, had been carried through the comitia by the dictator, 
 whereas Cicero, Alt. xiv. 12. 1, states positively that no mention was even made 
 of such a proposition in the dictator's lifetime. 
 
 6 Dio Cass. xlii. 51. 4; Suet. Caes. 41; wrongly Pomponius, in Dig. i. 2. 2. 2. 32. 
 The two additional aediles (cereales) were not instituted till 44; Dio Cass, xliii. 51.3. 
 
 6 Dio Cass. xlii. 51. 3; cf. Lange, Rom. Alt. iii. 437; p. 416 above. The addition 
 of one to the fifteen members of the great sacerdotal colleges (Dio Cass, ibid.; cf. 
 Cic. Earn. xiii. 68. 2) refers to his right to commend candidates for supernumerary 
 membership (Wissowa, in Pauly-Wissowa, Real-Encycl. ii. 2317), and hence does 
 not imply a comitial act. 
 
COMITIAL LEGISLATION, 82-30 455 
 
 him a large part of their electoral right through the plebiscite 
 of L. Antonius, 1 December, 45, which granted him the privilege 
 of nominating and presenting to the comitia a half of the candi- 
 dates below the consulship. 2 The degradation into which the 
 ordinary magistracies had been brought by the supremacy of 
 Caesar is indicated by the deposition of two tribunes of the 
 plebs, C. Epidius Marullus and L. Caesetius Flavus, because of 
 their opposition to monarchy, 44, through a plebiscite of their 
 colleague, C. Helvius Cinna. 3 
 
 To the year 46 belongs Caesar's legislation on judicial matters. 
 First disqualifying the tribuni aerarii for jury service, 4 he ordered 
 through the comitia that the courts be composed exclusively of 
 the senators and knights. 6 The man who had been carried to 
 supreme power on the shoulders of the common people now 
 spurned even the most respectable of their number from associ- 
 ation with himself in the administration. 6 It is known that he 
 enacted laws on individual crimes. 7 A lex de vi and a lex de 
 maiestate are mentioned, 8 but it is not known in what they 
 differed from those of earlier or later date. 9 His sumptuary 
 statute of the same year 10 restricted the expense of the table, 11 
 
 1 Cic. Phil. vii. 6. 16. 
 
 2 Suet. Cats. 41; cf. Dio Cass, xliii. 51. 3. The pretext was the impending Par- 
 thian war. In 46 he had been given the right to name all the magistrates but had 
 rejected it; Dio Cass, xliii. 14. 5; 45. 1; 47. 1; cf. Drumann-Grobe, Gtsch. Roms, 
 Hi. 612, n. 3. 
 
 8 Livy, ep. cxvi; Dio Cass. xliv. 10. 1-3; xlvi. 49. 2. In the following year a 
 tribune was similarly deposed by a plebiscite of P. Titius, a colleague (Dio Cass. xlvi. 
 49. 1); and in 43, before the establishment of the triumvirate, the city praetor was 
 deprived of his office by his colleagues, probably through a comitial act; App. B.C. 
 iii. 95. 394 f.; Mommsen, Rom. Staatsr. i. 630, 11. 4. 4 P. 427. 
 
 6 Suet. Cats. 41 ; Dio Cass, xliii. 25. 1. Cicero, Phil. i. 8. 19, intimates, without 
 positively stating, that this was a centuriate law; p. 236 above. 
 
 6 Cf. Lange, Rom. Alt. iii. 455; Drumann-Grobe, Gesch. Roms, iii. 558. 
 
 7 We are informed that he increased the penalties for crimes, and enacted that a 
 person condemned to exile should forfeit half his estate, and the murderer of a rela- 
 tive the whole; Suet. Cacs. 42; cf. Dio Cass. xliv. 49. 3. 
 
 8 Cic. Phil. i. 9. 23. 
 
 9 The Julian laws on these subjects in the Digesta, xlviii. 4 (de maiestate), 6 f. (de 
 vi) prove by their contents to belong to Augustus; Drumann-Grobe, Gesch. Roms, 
 iii. 560. 4; cf. Lange, Rom. Alt. iii. 455. The leges Iuliae which abolished what re- 
 mained of the legis actiones (Gaius iv. 30) are also supposed to belong to Augustus; 
 Poste, Gaius, 474. 10 Cic. Att. xiii. 7. 
 
 11 Cic. Fam. ix. 15. 5; 26. 3; Suet. Cats. 43. 
 
456 THE ROMAN ASSEMBLIES 
 
 sepulchral monuments, dwellings, 1 furniture, clothing, jewels, 
 and other luxuries, covering the ground in great detail. 2 A 
 Cassian plebiscite empowered him to recruit the patrician 
 rank 3 — a means of creating a nobility devoted to himself, while 
 supplying a religious need. A law proposed by himself (de 
 provinciis) limited proconsuls to two years of command and 
 propraetors to one, 4 that in future they might not acquire such 
 strength as to overthrow the civil authority, after the pattern 
 set by the author of the regulation. It was by a vote of the 
 people, too, that the famous lex Iulia municipalis was adopted, 
 probably in the autumn of 46. 5 Although there has been much 
 controversy regarding the nature of the document, 6 it is most 
 probably a general municipal statute. Far from exhaustive, it 
 had to be supplemented by special laws for the several cities. 7 
 The extant fragment, which seems to begin with the second 
 table, regulates (i) applications of citizens resident at Rome for 
 free grain, 8 (2) the aedilician supervision of the streets, build- 
 
 1 Cic. Att. xii. 35; 36. I. 
 
 2 Cic. Att. xiii. 7; Suet. Cats. 43; Dio Cass, xliii. 25. 2; cf. Drumann-Grobe, 
 Gesch. Roms, iii. 559; Lange, Rom. Alt. iii. 450. The officials failed to enforce it 
 effectively; Suet. ibid. 3 P. 164. 
 
 4 Dio Cass, xliii. 25; Cic. Phil. i. 8. 9; iii. 15. 38; v. 3. 7; viii. 9. 28. The lex 
 Iulia et Titia, which gave provincial governors the right to name tutors (Gaius i. 185, 
 195; Ulp. xi. 18; frag. d. Sin. 20; Inst. i. 20) may be a part of the lex de pro- 
 vinciis (Voigt, Rom. Rechtsgesch. i. 840 f.), or a supplement to it. The expression 
 may refer either to one law or to two related laws. The Julian lex de liberis lega- 
 tionibus, limiting their duration (Cic. Att. xv. II. 4), also belongs to 46. 
 
 CIL. i. 206; Bruns, Font. Iur. 104-13; Dessau, ii. 6085; Girard, Textes, 78-87. 
 The extant fragment, originally known as the Table of Heraclea (Lucania) from the 
 place where it was found, is inscribed on a bronze tablet now in the National 
 Museum at Naples. As it disqualified for office any who had taken part in the pro- 
 scriptions (§ 121), it must have followed the downfall of the Cornelian regime in 70, 
 and the mention of the month Quinctilis (§ 98) proves that it preceded the renaming 
 of that month in 43. A reference to one of its provisions (§§ 94, 104) by Cicero, 
 Fam. vi. 18. I (Jan., 45) as of a law freshly passed, proves it to be no later than Jan- 
 uary, 45; cf. Savigny, Verm. Schr. iii (1850). 279-412; Karlowa, Rom. Rechtsgesch. 
 i. 438; Girard, Textes, 78. It must have been passed, therefore, before Caesar set 
 out for Spain, about November, 46; Drumann-Grobe, Gesch. Roms, iii. 569. 
 
 6 For the various hypotheses, see Hackel, in Wiener Studien, xxiv (1902). 
 552-62. 
 
 7 Kalb, vajahresb. ii. Altwiss. 1906. 37. The identification of this law with the 
 lex Iulia municipalis cited in an inscription found at Padua {CIL. v. 2864) and with 
 the lex municipalis of the Digests (1. 9. 3; Cod. vii. 9. 1), proposed by Savigny, ibid., 
 is not certain; Girard, Textes, 78. » Lex ltd. Mtin. 1-19. 
 
COMITIAL LEGISLATION, 82-30 457 
 
 ings, and games of the capital, 1 (3) the qualifications for the 
 magistracies and the decurionate in the municipia, 2 (4) the 
 introduction of the Roman census in the municipia, 3 and (5) of 
 individual Roman statutes in those municipia which enjoyed the 
 laws of Rome. 4 The inclusion of the capital with the cities of 
 Roman rights throughout the empire in one general law marks 
 the first step in the monarchical process of reducing Rome to 
 the level of the municipia. 5 
 
 In comparison with the amount of reform work undertaken 
 by Caesar the legislative activity of the people was remarkably 
 slight. The growth of the monarchy wrought the decline of 
 the comitia as well as of the senate ; and the assassination 
 of the monarch brought equally to the republic and to the 
 assemblies but a short interval of pretended liberty. 6 A lex 
 proposed by the consul M. Antonius confirmed the acts of 
 Caesar and established as law the plans which he left in 
 writing at his death. 7 It was arbitrarily used by the consul 
 
 1 Lex Iul. Mutt. 20-82. 2 Ibid. 83-142. 
 
 8 Ibid. 143-59. * Ibid. 160-4. 
 
 6 Savigny, Verm. Schr. iii. 329, was of the opinion that the inclusion of articles 1 
 and 2 with articles 3-5 formed a lex satura (p. 396) having no other motive than 
 convenience. Hackel, Wien. Stud. xxiv. 560, supposes that Caesar had intended to 
 bring the provisions of this measure before the comitia as two separate laws, but in 
 his haste to be off for Spain, combined them in one. At all events the interpretation 
 given above is true of the result if not of the intention. 
 
 6 Many of his regulations were effected through edicts. Such were probably 
 the imposition of duties on goods imported into Italy — an abolition of the law 
 of 60 (Suet. Caes. 43; cf. p. 438), the leasing of the emery mines in Crete (Dig. 
 xxxix. 4. 15), and the suppression of the collegia which had been organized under 
 the Clodian law of 58; Suet. Caes. 42; Joseph. Ant. Iud. xiv. 10. 8. 213 ff.; 
 Lange, Rom. Alt. iii. 435 ; Liebenam, Rom. Vereinswes. 27. 
 
 7 Cic. Phil. v. 4. 10; App. B. C. iii. 5. 16; 22. 81; Dio Cass. xliv. 53. 2; xlv. 23. 
 After the Antonian laws had been ^annulled by the senate, February, 43, on the 
 ground that they had been passed with violence and contrary to the auspices (Cic. 
 Phil. vi. 2. 3; Dio Cass. xlv. 27), the acts of Caesar are confirmed anew by a 
 centuriate law of C. Vibius Pansa, consul in that year; Cic. Phil. x. 8. 17; Lange, 
 Rom. Alt. iii. 526. Thepolicy of using the departed Caesar as a means of self-aggrandize- 
 ment readily lent itself to Octavianus, at whose instigation Q. Pedius, his colleague 
 in the consulship in 43, caused a comitial act to be passed for the establishment 
 of a special court to try the murderers of the dictator. The act specified the 
 punishment to be inflicted on the guilty and offered rewards to informers; Veil, 
 ii. 69. 5; Suet. Ner. 3; Galb. 3; Dio Cass. xlvi. 48 f.; App. B. C. iii. 95; Aug. 
 Mon. Ancyr. i. io; Mommsen, Rom. Strafr. 199. 
 
 The lex Rufrena in honor of Caesar (CIL. i. 626) probably belongs to 42; 
 
458 THE ROMAN ASSEMBLIES 
 
 for legalizing every whim of his own. His colonial law, 
 passed shortly after Caesar's assassination, 1 seems to have 
 been used by him for establishing in Italy a permanent support 
 for himself. 2 The last known agrarian law of the republic 
 is that of his brother, L. Antonius, tribune of the plebs in 
 the same year, 44. It ordered the distribution of the Pomptine 
 marshes — which the author asserted were then ready for culti- 
 vation 3 — and other extensive tracts. 4 The execution of the 
 measure was in the hands of septemviri, 5 including the author 6 
 and his two brothers. 7 It was annulled in the following year 
 by the senate on the ground that it had been violently passed. 8 
 
 Meantime the consul Antonius continued his legislation. An 
 arbitrary act restored to the pontifical college its ancient right 
 to appoint its chief in place of the long-used election by seven- 
 teen tribes. 9 Next to colonization, however, his chief legisla- 
 tive interest was in the reform of the courts. He repealed 
 the Julian statute concerning the qualifications of jurors ; 10 and 
 instead of restoring the eligibility of the tribuni aerarii, he 
 made up a third decury of retired centurions and other veterans. 11 
 His law for granting an appeal to the people from the quaes- 
 tiones de vi and de maiestate, 12 had it remained in force, 
 would as Cicero asserts have abolished these courts and have 
 given free rein to mob violence, such as comitial trials for 
 
 Lange, ibid. 556; Herzog, Rom. Staatsverf. ii. 89, u. 3. In the same year falls the 
 lex of the triumvirs which changed the birthday of Caesar from July 12 to 5 
 (Fowler, Rom. Rest. 174) and compelled all to celebrate it; Dio Cass, xlvii. 18. 5. 
 
 1 Cic. Phil. v. 4. 10; Lex Col. Genet. 104. 
 
 2 Lange, Rom. Alt. iii. 499. After this law had been annulled by a senatus con- 
 sultum (p. 457, n. 7), the settlements made by Antonius were confirmed by a cen- 
 turiate law of C. Vibius Pansa, consul in 43; Cic. Phil. xiii. 15. 31. 
 
 8 Dio Cass. xlv. 9. 1. 
 
 4 Cicero, Phil. v. 3. 7, says all Italy; 7. 20; vi. 5. 13. 
 
 6 Ibid. v. 7. 21; vi. 5. 14; viii. 9. 26; xii. 9. 23. 
 
 6 Ibid. v. 7. 21; vii. 6. 17. 
 
 7 Ibid. ii. 38. 99; v. 12. 33; Att. xv. 19. 2. 
 
 8 Cic. Phil. v. 3; vi. 5. 14; xi. 6. 13. 
 
 9 Dio Cass. xliv. 53. 7; cf. Livy, ep. cxvii; Veil. ii. 63. I; cf. p. 341, 391. No 
 comitial act is suggested, and it may have been one of the false laws of Caesar. 
 Ferrero's theory {Rome, iii. 38) has nothing in its favor. 10 P. 455. 
 
 11 Cic. Phil. i. 8. 19; v. Sf.; viii. 9. 27; cf. Greenidge, Leg. Proced. 449 f. This 
 law with his others was annulled in the following year by the senate; Cic. xiii. 
 3-5; P- 457. n. 7- 12 Cic. Phil. i. 9. 21 f. 
 
COMITIAL LEGISLATION, 82-30 459 
 
 these crimes must necessarily be under conditions as they 
 then existed. 1 Popularity was the aim of this measure as 
 well as of his lex which forever abolished the dictatorship. 
 Along with all his other laws they were annulled by the 
 senate in February 43.2 
 
 The establishment of the triumviri rei publicae constituendae 
 in 43 practically abolished the functions of the comitia, as 
 these three potentates usurped the right of filling all offices by 
 appointment and of managing affairs according to their pleasure 
 without consulting either the senate or the people. 3 The power 
 they had seized was legalized for a period of five years by 
 the plebiscite of P. Titius, November 43, passed without regard 
 to the trinundinum. 4 The reference of business to the people 
 was thereafter a rare indulgence. It may have been through 
 a comitial act that the triumviri resolved upon building a 
 temple to Serapis and Isis in the first year of their rule. 6 We 
 are less certain that the measure of Octavianus in, 41 for a 
 partial remission of rents was offered to the people. 6 To the 
 year 40 belongs the lex Falcidia, of P. Falcidius, tribune 
 of the plebs, which permitted a man to bequeath no more 
 than three-fourths of his estate, leaving one-fourth to his 
 natural heirs. 7 We need not be surprised to find that the 
 rulers gladly allowed the people to vote them honor-s. In 
 their first year they were awarded civic crowns by a comitial 
 act, doubtless of the tribes; 8 and in 35 the honors bestowed 
 
 1 Ibid. 
 
 2 Cic. Phil. v. 4. 10; p. 457, n. 7. The lex Antonia on the dictatorship was 
 doubtless renewed by a lex Vibia; Cic. 1. c. 
 
 8 Dio Cass. xlvi. 55. 3. 
 
 * Aug. Mon. Ancyr. i. 8; App. B. C. iv. 7. 27; Herzog, Rom. Staatsvcrf. ii. 
 84, 89. 
 
 B Dio Cass, xlvii. 15. 4 (ty-qiplaavro ordinarily implies a comitial vote) ; cf. Lange, 
 Rom. Alt. ii. 680. The grant of lictors to the Vestals in 42 may also have been 
 effected by » comitial act; Dio Cass, xlvii. 19. 4. In the same year a consular 
 lex of L. Munatius Plancus ordered the erasure of the names of L. Julius Caesar 
 and Sergius from the list of the proscribed; App. B. C. iv. 37. 158; 45. 193. 
 
 6 Dio Cass, xlviii. 9. 5. Lange, Rom. Alt. iii. 565, assumes a vote of the comitia. 
 
 7 Dio Cass, xlviii. 33. 5; Gaius ii. 227; Dig. 35. 2. Closely related is the lex 
 Glitia of unknown date, mentioned by Gaius only {Dig. v. 2. 4), which aimed to 
 prevent a parent from ill-humoredly wronging a child in his testament. Lange, 
 Rom. All. ii. 662, regards the word Glitia as a copyist's error for Falcidia. 
 
 8 Dio Cass, xlvii. 13. 3. 
 
460 THE ROMAN ASSEMBLIES 
 
 upon Octavia and Livia probably came through a plebiscite, 
 as did certainly the triumph voted to Octavianus. 1 Last may 
 be mentioned the law of L. Saenius, consul in 30, supported 
 by a senatus consultum, which empowered Octavianus to create 
 new patricians. 2 
 
 Schulze, C. F., Volksversammlungen der Romer, 124-39; Peter, C.,Epochen 
 der Verfassungsgeschichte der rom. Republik, 165 ff. ; Gesch. Roms, bk. VII. 
 ch. v; bks. VIII-X ; Ihne, Hist, of Rome, bk. VII. chs. xxi-xxiii ; Lange, 
 Riim. Alt. iii. 146-597; cf. ii, see index s. the various laws; Commentaiiones 
 de legibus Antoniis a Cicerone Phil. v. 4. 10 commemoratis particula prior et 
 posterior, in Kl. Schr. ii. 126-49; Die lex Pupia, etc., ibid. ii. 175-94; Die 
 promulgatio tritium nundinum, etc., ibid. ii. 214-70 ; Long, G., Decline of the 
 Roman Republic, 5 vols. ; Herzog, E., Gesch. und System der rom. Staatsverf. 
 i. 509-65; ii. 1-130; Mommsen, History of Rome, bk. IV. ch. x; bk. V; 
 Rom. Staatsr. and Rom. Strafr. see indices s. the various laws, courts, etc. ; 
 Ein zweites Bruchstiick des rubrischen Gesetzes vom Jahre 705 Roms, in 
 Hermes, xvi (1881). 24-41 ; Lex coloniae Iuliae Genetivae Urbanorum, etc., 
 in Ephem. Ep. ii (1875). 105-51 ; Lex municipii Tarentini, ibid. ix. (1903). 
 1-1 1 ; Ueber die lex Mamilia Roscia Peducaea Alliena Fabia, in Rom. Feld- 
 mess. ii. 221-6; Neumann, C, Gesch. Roms, i. 602-23; ii. entire; Ferrero, G., 
 Greatness and Decline of Rome; Schiller, H., Geschichte der rom. Kaiser zeit, 
 I. bk. i; Lengle, Sullanische Verfassung; Sunden, J. M., De tribunicia potes- 
 tate a L. Sulla imminuta quaestiones ; Freeman, E. A., Lucius Cornelius 
 Sulla, in Hist. Essays, ii. 271-306 ; Wilmanns, Ueber die Gerichtshofe wahrend 
 des Bestehens der lex Cornelia iudiciaria, in Rhein. Mus. N. F. xix (1864). 
 528-41 ; Voigt, M., Ueber die lex Cornelia sumptuaria, in Ber. sachs. Gesellsch. 
 d. Wiss. xlii (1890). 244-79 i Nipperdey, K., Die leges annates der rom. Repub- 
 lic, in Abhdl. sachs. Gesellsch. d. Wiss. v. (1870). 1-88 ; Keil, J., Zur lex Cor- 
 nelia de viginti quaestoribus, in Wiener Studien, xxiv (1902). 548-51 ; Ritschl, 
 F., In leges Viselliam Antoniam Corneliam observations epigraphicae, in 
 Opuscula Philologica, iv (1878). 427-45 ; Oman, C, Seven Roman Statesmen, 
 v-ix; Strachan-Davidson, Cicero; Forsyth, W., Life of Marcus Tullius Cicero, 
 2 vols. ; White, H., Cicero, Clodius, and Milo ; Sternkopf, W., Ueber die " Ver- 
 besserung" des clodianischen Gesetzwurfes de exilio Ciceroni's, in Philol. N. F. 
 xiii (1900). 272-304; AToch einmal die correctio der lex Clodia de exilio, ibid, 
 xv. 42-70 ; Gurlitt, Lex Clodia de exilio Ciceronis, ibid. xiii. 578-83 ; Green- 
 idge, A. H. J., The lex Sempronia and the Banishment of Cicero, in CI. Rev. 
 vii (1893). 347 f. ; Schmidt, O. E., Der Briefwechsel des M. Tullius Cicero 
 von seinem Prokonsulat in Cicilien bis zu Cdsars Ermordung; John, C, Die 
 Entstehungsgeschichle der catilinarischen Verschworung, in Jahrb.f. cl. Philol. 
 Supplb. viii (1875, 1876). 701-819; Abbott, F. F., The Constitutional Argu- 
 
 1 Dio Cass. xlix. 38. I. 
 
 2 Aug. Mon. Ancyr. ii. 1; Tac. Ann. xi. 25; Dio Cass. Iii. 42. 5; cf. Herzog, 
 Rom. Staatsverf. ii. 130. 
 
COMITIAL LEGISLATION, 82-30 461 
 
 ment in the Fourth Catilinarian Oration, in CI. Journ. ii (1907). 123-5 i 
 Napoleon III, Jules Cisar, 2 vols.; Fowler, W '., Julius Caesar; Nissen, H., 
 Der Ausbruch des Biirgerkrieges 49 vor Chr., in Hist. Zeitschr. xliv (1880). 
 409-45; xlvi (1881). 48-105; Hirschfeld, O., Der Endtermin der gallischen 
 Staatshalterschaft Caesars, in Klio, iv (1904). 76-87. Wiegandt, L., Studien 
 zur staatsrechtlichen Stellung des Diktators Cdsar : das Recht iiber Krieg und 
 Frieden; Caesar und die tribunizische Gewalt; Hackel, H., Die Hypothesen 
 iiber die lex lulia ntunicipalis, in Wiener Studien, xxiv (1902). 552-62 ; Cuq, 
 E., Juges pltbeiens de colonie de Narbonne, in Melanges d^archiologie et d^his- 
 toire (1881). 297-31 1 ; Kornemann, Die casarische Kolonie Karthago und die 
 Einfuhrung rom. Gemeindeordnung in Africa, in Philol. N. F. xiv (1901). 
 402-26 ; Liebenam, W., Gesch. und Organisation d. rom. Vereinswesens ; Waltz- 
 ing, J. P., Corporations professionelles chez les Romains, i. 78 ff. ; Babelon, E., 
 Monnaies de la rlpublique Romaine, i. 79-88 ; Dreyfus, R., Lois agraires, 
 pt. iii ; Toutain, J., Municipium, in Daremberg et Saglio, Diet. Hi. 2022-34 ; 
 Pauly-Wissowa, Real-Encycl. i. 256 f . : M' Acilius Glabrio (Klebs) ; 554-6; 
 M. Aemilius Lepidus (idem) ; 1800-3 : Ambitus (Hartmann) ; ii. 191-4: Ap- 
 paritores (Habel) ; 2482-4 : C. Aurelius Cotta (Klebs) ; 2485-7 : L. Aurelius 
 Cotta (idem) ; iii. 1376 f. : C. Calpurnius Piso (Miinzer) ; iv. 82-8 : P. Clodius 
 Pulcher (Frohlich); 1252-5: C. Cornelius (Miinzer) ; iv. 1287 f. : L. Cor- 
 nelius Cinna — son of the famous democratic consul (idem); 1380 f. : Cn. 
 Cornelius Lentulus Clodianus (idem); 1522-66: L. Cornelius Sulla Felix 
 (Frohlich) ; 2401-4 : Deiotarus (Niese). 
 
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. 1 The bill, as first pre- 
 sented to the senate and published in the city on wooden tab- 
 lets, 2 was merely tentative ; for discussion in the senate or the 
 expression of public opinion might suggest changes 3 or even 
 induce the author to withdraw the proposal. 4 
 
 At the head of the law after its adoption was inserted the in- 
 dex and praescriptio, 5 of which the consular lex Quinctia de 
 aquaeductibus, accepted by the tribes in the year 9 B.C., offers 
 a good example : 6 
 
 " T. Quinctius Crispinus consul populum iure rogavit, popu- 
 lusque 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." 7 
 
 1 Plut. Ti. Gracch. 9; Cic. Att. iii. 23. 4; Lange, Rom. Alt. ii. 649; Karlowa, 
 Rom. Reehtsgesch. i. 427. 
 
 2 Cic. Leg. Agr. ii. 5. 13; Dion. Hal. a. 57. 5; Livy iii. 34. I ; Dio Cass. xlii. 32. 
 2 f. A bronze tablet was sometimes used for a mere rogation; Cic. Mil. 32. 87; 
 Suet. Caes. 28. For leges promulgatae, see Livy iii. 9. 5; iv. 1. 1; 48. 1, 9; vi. 35. 
 4> 39- 1; x. 6. 6; xliii. 16. 6. On the requirement of the trinum nundinum, see p. 
 397. The proposer was called rogator or lator (Livy iv. 48. 10) ; his supporters ad- 
 scriptores; Cic. Leg. Agr. ii. 9. 22. The names of the latter, provided they were 
 magistrates, were often published with the bill for the sake of influence; Cic. Pis. 
 '5- 35; R'd- i" Sen. 2. 4; 9. 22; Sest. 33. 72; Fam. i. 9. 16. 
 
 3 Cic. Att. i. 19. 4; Inv. ii. 45. 130 f.; Ascon. 57; Livy iii. 34. 4 ff. 
 
 4 Cic. Sull. 22. 62. 6 Qc. Leg. Agr. ii. 9. 22. 
 
 6 Frontinus, De aquis urbis Romae, ch. 129; Bruns, Font. Iur. 115; Girard, 
 Textes, 103-5; c{ - Lex A gr- I (CIL. i. 200). 
 
 7 The Italics supply lacunae. See also Cic. Phil. i. 10. 26; Probus, in Gramm. 
 Lat. iv. 272 (Keil). 
 
 462 
 
STATUTES, PROCEDURE, AND CALENDAR 463 
 
 It contains the name of the rogator, 1 his office, the body of 
 citizens, whether populus or plebs, to which the proposal is 
 offered, the place of the assembly, 2 the date, the century (prae- 
 rogativa) 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. 3 If the 
 senate has given its sanction, that fact is indicated by the inser- 
 tion of the phrase " de s(enatus) s(ententia)." 4 In case the pro- 
 posal 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 de- 
 scribed as a lex plebeive scitum. 5 
 
 The body of the law is divided into chapters separated by 
 spaces, sometimes numbered, and occasionally bearing individ- 
 ual titles. 6 Last comes the sanction, 7 which provides for the 
 enforcement. Some laws, however, — termed leges imperf ectae 
 — lack this part. 8 Usually the sanction prescribes the form of 
 procedure according to which offenders are to be tried. 9 
 
 1 Or the several names of a group of rogatores (cf. Livy iv. I. 2; Cic. Sest. 33. 
 7. 2), as in the Lex de Termessibus (p. 425) and the lex Mamilia Roscia, etc. (p. 441, 
 n. 1); see also Mommsen, Rom. Staatsr. iii. 315, n. 2. 
 
 2 Cf. Probus, in Gramm. Lat. iv. 272. 
 
 8 He was either taken by lot or appointed by the presiding magistrate; Cic. 
 Plane. 14. 35. 4 As in the Lex de Termess, I. 
 
 6 Ex h(ace)' l(ege) plebive scito; Lex Lat. Bant. (3). 15; Bruns, Font. Iur. 
 55; Girard, Textes, 31; Lex Agr. 2 (CfL. i. 200). 
 
 6 Sometimes K. (kaput) or K. L. (kaput legis) followed by a number is used, or 
 the title may be preceded by R. (rubrica); Egbert, Lat. Inscr. 349; Cagnat, E.pigr. 
 Lat. 266. 
 
 7 Dig. xlviii. 19. 41; Cic. Att. iii. 23. 2 f. The substance of the sanctio compris- 
 ing the extant fragment of the Lex Lat. Bant, is given on p. 379. On the lex 
 sacrata, see p. 264 f. 
 
 8 Macrob. Somn. Scip. ii. 17. 13. A lex minusquam perfecta prescribes a penalty 
 but allows the violating act to stand. The lex Furia testamentaria (p. 35 2) , for instance, 
 declares that the beneficiary of a legacy above the legal limit must pay fourfold, but 
 does not rescind the legacy itself; Ulp. Reg. I. A lex perfecta not only prescribes a 
 penalty but nullifies a contravening act. These distinctions apply only to the civil 
 law. Cf. Ulp. 1. c; Karlowa, Rom. Rtchtsgesch. i. 428; Poste, Gains, 566. Other 
 terms connected with the enactment, repeal, and alteration of laws are explained by 
 Ulp. Reg. 3 : " Lex est rogatur, id est fertur, aut abrogatur, id est prior lex tollitur, 
 aut derogatur, id est pars primae legis tollitur, aut subrogatur, id est adiicitur aliquid 
 primae legi, aut obrogatur, id est mutatur aliquid ex prima lege." The classification 
 of laws as curiate, centuriate, and tribal according to the form of the comitia, and as 
 consular, tribunician, etc. according to the office of the lator does not need explana- 
 tion. 9 Dig. xiii. 2. I ; Gromat. 265. 
 
464 THE ROMAN ASSEMBLIES 
 
 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). 1 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 2 By an 
 analogous statement unconscious trespassing upon the rights of 
 religion is rendered harmless. 3 In accordance with a law of 
 the Twelve Tables * provision is further made against the con- 
 sequences 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. 5 A provision may also be 
 added against illegal alteration or repeal. 6 Sometimes the pro- 
 poser includes an article for compelling senators and magistrates 
 to uphold his law, should it be enacted, 7 or for otherwise over- 
 coming opposition to its enforcement, 8 or for making repeal dif- 
 ficult. 9 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. 10 
 
 1 Cf. Frag. Atest. in Bruns, Font. Iur. 101 ; Girard, Textes, 78; Lex Acil. rep. 78 
 (CIL. i. 198). 
 
 2 " Si quid ius non est rogarier, eius ea lege nihilum rogatur " ; Cic Caec. 33. 95 ; 
 Dom. 40. 106; LexTudert. {CIL. i. 1409) 10 f. A far more detailed formula is 
 given by Cic. Att. iii. 23. 3. 
 
 3 " Si quid sacri sancti est, quod non iure sit rogatum, eius hac lege nihil roga- 
 tur " ; Probus, in Gramm. Lat. iv. 273. 
 
 4 P- 233 f- 
 
 5 Lex de imp. Vesp. in CIL. vi. 930; Bruns, Font. Iur. 193 f.; Girard, Textes, 
 106 : " Si quis huiusce legis ergo adversus leges rogationes plebisve scita senatusve 
 consulta fecit fecerit, sive, quod eum ex lege rogatione plebisve scito senatusve con- 
 sulto facere oportebit, non fecerit huius legis ergo, id ei ne fraudi esto, neve quit ob 
 earn rem populo dare debeto, neve cui de ea re actio neve iudicatio esto, neve quis 
 de ea re apud se agi sinito." Although this document may have been a senatus 
 consult um, it has the form of a law and is so called by itself; cf. Mommsen, Rom. 
 Staalsr. ii. S76-9. All such formulae were indicated by the series of initial letters of 
 the component words; Probus, in Gramm. Lat. iv. 272 f. 
 
 6 Fest. 314. 29: "Neve per saturam abrogato aut derogato"; Lex Tudert. 9; 
 Cic. Att. iii. 23. 3. 
 
 7 This is true of the Lex Lat. Bant. (p. 380), the Appuleian laws (p. 395), and 
 the Julian agrarian law of 59 (p. 440). 
 
 8 As by forbidding tribunician intercession; Lex Mai. 58; Cic. Leg. Agr. ii. 12. 
 30. 9 Cic. Att. iii. 23. 2. w Lange, Rom. Alt ii. 652. 
 
STATUTES, PROCEDURE, AND CALENDAR 465 
 
 The law is then engraved on a bronze tablet, 1 the original copy 
 of which is kept by the quaestors in the aerarium. 2 Other 
 copies are posted in public places where all can read it. 3 
 
 II. Comitial Procedure 
 
 The tribal assembly convened under the presidency of a trib- 
 une or aedile of the plebs, 4 in which case the gathering was 
 technically the plebs ; 6 or as the populus under a patrician 
 magistrate — dictator, consul, praetor, 6 curule aedile, 7 pontifex 
 maximus, 8 or any extraordinary magistrate who possessed the 
 ius agendi cum populo. 9 It met indifferently within or without 
 the pomerium, usually on the Capitoline hill in the precinct of 
 the temple of Jupiter, 10 in the Forum and comitium, 11 the Campus 
 Martius, 12 and within the latter in the Flaminian meadow or Fla- 
 minian Circus. 13 Meetings called by tribunes had to convene 
 within the first milestone, which bounded the authority of these 
 officials, 14 whereas we hear of a tribal assembly called by a con- 
 sul in the military camp at Sutrium (357). 15 The contio, de- 
 scribed in an earlier chapter, was transformed into comitia by 
 order of the presiding magistrate directing the people to take 
 
 1 Livy iii. 57. 10; Cic. Phil. i. 10. 26; Tac. Hist. iv. 40; Suet. Vesp. 8; Serv. 
 in Aen. vi. 622. In earlier time wooden tables were used for laws as well as for 
 rogations; Dion. Hal. iii. 36. 4; iv. 43. I. 
 
 2 P. 438. Plebis cita and the senatus consulta pertaining thereto were originally 
 kept by the aediles of the plebs in the temple of Ceres; p. 278 f. 
 
 8 " Unde de piano recte legi possit " ; Probus, in Gramm. Lat. iv. 273, for exam- 
 ple, the Forum; Dion. Hal. x. 57. 7. Plebiscites and senatus consulta of interna- 
 tional importance could be found in the temple of Faith on the Capitoline hill; Suet. 
 Vesp. 8; Obseq. 68. For other places, see Lange, Rom. Alt. ii. 652 f. 
 
 4 Under the aedile for judicial business only; p. 325. 
 
 6 p. 276. 6 Cf. p. 304. 
 
 7 For judicial business only; p. 292. 8 P. 327. 
 
 9 P. 141. For instance, the dictator; p. 416, u. I. 
 
 10 Livy xxv. 3. 14; xxxiii. 25. 7; xxxiv. 1. 4; 53. 2; xliii. 16. 9; xlv. 36. I; App. 
 B. C.i. 15. 64; Plut. Ti. Gracch. 17; C. Gracch. 13; Aemil. 31; Ascon. 77. 
 
 11 Dion. Hal. vii. 17. 2; ix. 41. 4; x. 9. 3; Livy viii. 14. 12; Varro, R. R. i. 2. 9. 
 For legislation in the Forum, see Lex Quinct. de Aq. praescriptio. 
 
 12 Varro, R. R. iii. 2. 5; Cic. Plane. 9. 16; Att. i. 1. 1; iv. 3. 4; Fam. vii. 30. 1. 
 18 Livy iii. 54. 15; xxvii. 21. 1; cf. Richter, Top. v. Rom, 48, 212 ; Platner, Top. 
 
 and Mon. of Anc. Rome, 343. 
 
 14 Livy iii. 20. 7. 
 
 15 P. 297. Meetings distant from the city were soon afterward forbidden by law. 
 
 2H 
 
466 THE ROMAN ASSEMBLIES 
 
 their places in their respective tribes. 1 Before this command 
 was given a tribe was drawn by lot to receive the Latins who 
 were at Rome. 2 A second tribe was then drawn as a princip- 
 ium to cast the first vote. 3 The bringing of the urn * and the 
 sortition were the last acts of the contio. To facilitate the 
 division ropes were stretched across the Forum or other assem- 
 bly-place, forming as many compartments as there were tribes. 5 
 In time a permanent enclosure, termed Saepta, 6 was built for 
 the comitia. 7 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. 8 After the 
 tribes were assembled in their comitia as here described, the prin- 
 cipium was called to vote. This point terminated the right of 
 
 1 Vocare tribus in (or ad) suffragium (Cic. Plane. 20. 49; Livy iii. 71. 3; iv. 5. 
 2 ; vi. 38. 3; x. 9. 1; xxv. 3. 15), citare tribus ad suffragium ineundum (Livy vi. 35. 
 7), or mittere tribus in suffragium (Livy iii. 64. 5). 
 
 2 Livy xxv. 3. 16; Lex Mai. 53; Fest. 127. I. These sources prove, against 
 Lange, Rom. Alt. ii. 483, that the right to vote in a tribe drawn thus by lot was not 
 restricted to those who were virtually citizens awaiting enrolment. It is probable 
 that, at least in early time, not even residence was a requirement ; cf. Mommsen, 
 Rom. Staalsr. iii. 232, n. 2, 396 f., 643 f. 
 
 8 In the opinion of Mommsen, Rom. Staatsr. iii. 397, n. 4, 411, n. 7; Abhdl. 
 sacks. Gesellsch. d. Wiss. ii (1857). 426, n. 107, the principium had nothing to do 
 with the order of voting. His argument is based chiefly on the fact that according 
 to the Lex Mai. 55 — a constitution evidently based in large part on that of Rome — 
 the curiae voted simultaneously. Reference to the preliminary vote of a single 
 Roman tribe, however, is made by Plut. Aemil. 31 ; App. B. C. i. 12. 52. Further- 
 more it is difficult to understand why so great importance should attach to the 
 principium on Mommsen's supposition that it had merely to do with the order of 
 announcement after the simultaneous vote of all the tribes. His view is accepted by 
 Liebenam, in Pauly-Wissowa, Real-Encycl. iv. 684, but rejected by Lange, Kl. Schr. 
 ii. 477 f.; Herzog, Rom. Slaatsverf. 11 84, and ignored by most other writers, includ- 
 ing Liebenam, inconsistently ; ibid. 706. 
 
 4 " Sitellam deferre." It was filled with water, the lots were thrown in, and the 
 drawing was effected by pouring out the water, which caused the pieces to fall one 
 by one. The process was supervised by the custodes ; cf. Ascon. 70; Cic. Leg. Agr. 
 ii. 9. 22. 
 
 6 Dion. Hal. vii. 59. 1; App. B. C. iii. 30. 117. 
 
 6 Serv. in Bucol. i. 33; Ovid, Fast. i. 53; Cic. Mil. 15. 41. 
 
 7 The marble building, known as the Saepta Julia, begun in 54 by Julius Caesar 
 (Cic. Ait. iv. 16. 14), was finished by Agrippa in 27 B.C. A plan is given by Plat- 
 ner, Top. and Mon. ofAnc. Rome, 365, who describes it at length; cf. Richter, Top. 
 v. Rom, 230 ff. 8 ci c- Sest. 51. 109; p. 129 above. 
 
STATUTES, PROCEDURE, AND CALENDAR 467 
 
 intercession 1 and of obnuntiating an evil omen discovered in 
 watching the sky. 2 When the suffrage of the principium was 
 given and announced, 8 all the remaining tribes voted simulta- 
 neously. 4 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. 5 After the introduction of the ballot, 6 
 the state provided little tablets inscribed with abbreviations for 
 " ut rogas " and " antiquo " for affirmative and negative votes 
 respectively, 7 and for elections blank tablets on which the names 
 of the candidates could be written. 8 They were deposited in 
 boxes (cistae) placed at the exits above mentioned, 9 under the 
 charge of rogatores, who, having lost their original function, 
 were now often, and more aptly, called custodes. 10 They counted 
 (diribitio) the ballots, and reported (renuntiatio) the results to 
 the president. 11 The latter had a right to announce to the pub- 
 lic the returns from the tribes in whatever order he pleased, 
 but he usually preferred to determine the succession by lot. 12 
 
 I The act could take place during the deliberation, the placing of the urn, the 
 sortition, and the separation of the people in their voting groups ; Ascon. 70; (Cic.) 
 Hcrenn. i. 12. 21; Cic. N. D. i. 38. 106. It was most convenient, however, for the 
 tribune to interpose his veto by forbidding the reading of the bill; Ascon. 57 f. (p. 430 
 above); App. B. C. i. 12. 2 P. 115. 
 
 8 Livy ix. 46. 2; Gell. vii (vi). 9. 2. 4 Dion. Hal. vii. 59. 9; 64. 6. 
 
 6 This is true of the comitia centuriata (Cic. Div. ii. 35. 75; N. D. ii. 4. 10), and 
 doubtless applies as well to other forms of assembly; Mommsen, Rom. Staatsr, iii. 
 403, 11. 4. The rogator must have kept a tally of the votes in rogations in some such 
 way as in elections, in which for each vote he placed a mark (punctum) after the 
 name of the candidate in whose favor it was given; Mommsen, ibid. 404. 
 
 6 P. 359. 39°- 
 
 7 U. R. and presumably A. ; Cic. Att. i. 14. 5 ; Mommsen, Rom. Staatsr. iii. 402, 
 n. 2. There were corresponding abbreviations for trials ; Liebenam, in Pauly-Wis- 
 sowa, Real-Encycl. iv. 692; cf. p. 178 f. above. 
 
 8 Plut. Cat. Min. 46; Suet. Caes. 80. These names might also be abbreviated; 
 Cic. Dom. 43. 112. 
 
 9 Sisenna, Frag. 118 (Peter, Reliq. i. 293); (Cic.) Hcrenn. i. 12. 21; Plut. Ti. 
 Gracch. II. The voting within the curiae was also by heads; Livy i. 43. 10; Dion. 
 Hal. iv. 20. 2. 
 
 J P Cic. Red. in Sen. II. 28; Pis. 15. 36; Lex Mai. 55 (Bruns, Font. Lur. 149; 
 Girard, Textes, 112). As they also counted the votes, they were termed diribitores. 
 In the last century of the republic they were drawn from the album iudicum (Pliny, 
 N. H. xxxiii. 2. 31), and hence included some of the most influential men in the 
 state ; cf. Cic. Leg. iii. 3. 10 ; 15. 33 f. 
 
 II Cic. Plane. 20. 49; Pis. 5. 11; 15. 36; Varro, R. R. iii. 5. 18. 
 
 12 Cic. Plane. 14. 35. The order of announcement of the curial votes was like- 
 
468 THE ROMAN ASSEMBLIES 
 
 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. 1 The declaration of the vote by the 
 praeco at the command of the president closed the comitial act. 2 
 If for any reason the presiding magistrate discontinued the 
 announcement before a majority was reached, the vote was 
 without effect. 3 The session of any assembly had to begin and 
 end between sunrise and sunset. 4 
 
 The comitia curiata, presided over by the king, the interrex, 
 and possibly by the tribunus celerum, 5 and in the republican 
 period by the dictator, 6 consul, 7 interrex, 8 praetor, 9 pontifex 
 maximus, 10 or rex sacrorum, 11 met always within the pomerium, 12 
 usually in the comitium, 13 or for religious purposes in front 
 of the Curia Calabra on the Capitoline hill. 14 It was called 
 together by a curiate lictor M at the sound of the lituus or tuba. 16 
 The procedure, which in general was like that of the tribal 
 assembly, and which has been touched upon in the chapters on 
 
 wise determined by lot; Lex Mai. 57. Livy, ix. 38. 15, refers to the sortition for 
 the principium. 
 
 1 Varro, in Gell. x. 1. 6; Cic. Pis. I. 2; Mur. 17. 35; Plut. C. Gracch. 3; Caes. 
 5; Suet. Vesp. j.. In the case of censors alone no declaration was made unless two 
 were elected ; Livy ix. 34. 25. 
 
 2 Lex Mai. 57; Cic. Mur. 1. I; GelL xii. 8. 6. In like manner in the comitia 
 curiata a majority of the curiae decided; Dion. HaL ii. 14. 3. 
 
 3 As in the vote to depose Trebellius from the tribunate in 67 (p. 432) ; cf. the 
 deposition of Octavius in 133; p. 367. The voting as well as the announcement 
 might be interrupted by an evil omen (p. 109, hi, 248), in which case the assembly 
 had to be adjourned. Sometimes the president arbitrarily adjourned the meeting; 
 Livy xlv. 36. 1-6, 10; Plut. Aemil. 31. 
 
 i Twelve Tables i. 9: "Solis occasus suprema tempest as esto"; Documents in 
 Varro, L. L. vi. 87, 92; Dtclam. in Cat. 19; cf. Livy x. 22. 7 f. 
 
 5 For the presidency of the tribunus celerum, see Livy i. 59. 7; cf. Humbert, in 
 Daremberg et Saglio, Diet. i. 1377. It is denied by Liebenam, in Pauly-Wissowa, 
 Real-Encycl. iv. 682. « Livy ix. 38. 15; p. 112 above. 
 
 7 P- 195 f - 8 Cic. Rep. ii. 13. 25; 17. 31. 
 
 9 Cic. Leg. Agr. ii. 11. 28. 10 P. 155. 
 
 u p - '54- u Livy v. 52. 15; Dio Cass. xli. 43. 
 
 13 Varro, L. L. v. 155; Livy, ibid.; cf. Fest. ep. 38. 
 
 14 P- IS4- 15 Gell. xv. 27. 2. 
 
 16 Dion. Hal. ii. 8. 4; p. 31 above; cf. Mommsen, Rom. Staatsr. iii. 386. 
 
STATUTES, PROCEDURE, AND CALENDAR 469 
 
 the comitia calata and curiata, does not require further con- 
 sideration here. 1 
 
 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 2 — the 
 dictator, consul, interrex for holding elections, the praetor for 
 judicial business, 3 and all extraordinary magistrates with consu- 
 lar 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. 4 It always 
 met outside the pomerium, usually in the Campus Martius, 5 at 
 the call of an accensus, who sounded the trumpet (classicum) at 
 daybreak along the city wall. 6 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. 7 
 As in the case of the tribal assembly, the contio was transformed 
 into comitia by an order of the president commanding the citi- 
 zens to separate into their respective voting groups. 8 The place 
 of meeting, termed ovile 9 (sheepf old), was divided by ropes or 
 wooden fences into as many compartments as there were cen- 
 turies in the largest voting division — probably eighty-seven. 10 
 An elevated passage (pons) formed the exit of each compart- 
 ment. 11 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 intro- 
 duced, it was used in all assemblies alike. 12 The order of voting 
 before and after the reform has been sufficiently explained in 
 
 1 On the procedure, see Liebenam, in Pauly-Wissowa, Real-Encycl. iv. 682-4. 
 
 2 p. 103, 140, 203, 244, 245. The censors convoked it for the census and the 
 lustrum only; p. 204. 
 
 8 He could not hold these comitia for elections; Livy xxii. 33. 9. 
 4 See references in the next to the last note above. 
 
 6 Livy v. 52. 15; Gell. xv. 27. 5; Cic. Rab. Perd. 4. II. 
 
 8 Varro, L. L. vi. 88, 91; cf. Verg. Georg. ii. 539. 
 
 7 P. 203, n. *. 8 P. 150. 
 
 9 Livy xxvi. 22. 11; Juv. vi. 529; Serv. in Bucol. i. 33. 
 
 10 70 of the first class — I prerogative + 18 equestrian. 
 
 11 Cic. Att. i. 14. 5; (Cic.) Herenn. i. 21 ; Fest. 334. 16. " P. 359, 390, 467. 
 
47o THE ROMAN ASSEMBLIES 
 
 an earlier chapter. 1 In general the principles governing the 
 announcement of votes, interruptions, and adjournments were 
 the same for all three assemblies. The length of the assem- 
 blies 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. 2 
 We should therefore assume at least an hour for the voting of 
 the tribes. 3 
 
 III. Comitial Days 
 
 The people could meet for voting on comitial days only 4 — 
 marked C in the calendar. 5 They excluded the dies nefasti — 
 marked N, NP, or N 7 — on which religion forbade that public 
 business should be done. 6 They excluded further the two days 
 marked Q(uando) R(ex) C(omitiavit) F(as), 7 the one day marked 
 Q(uando) ST(ercus) D(eletum) F(as) 8 — because on these days 
 it was impossible to open the assembly in the morning as usage 
 prescribed — and the eight days marked EN, 9 the morning and 
 evening of which were alone nefasti, the intervening part being 
 
 1 P. 211, 226 f. 2 Cic. Fam. vii. 30. 
 
 8 In the comitia centuriata in addition to the prerogative there had to be at least 
 four, and possibly seven, successive votings before a majority could be reached. In 
 the tribal assembly there was but one in addition to the principium. After the 
 comitia curiata had come to be represented by thirty lictors the votes could be 
 taken in a few minutes. 
 
 4 Varro, L. L. vi. 29 : " Comitiales dicti quod turn ut coiret populus constitutum 
 est ad suffragium ferendum nisi si quae feriae conceptae essent, propter quas non 
 liceret, (ut) Compitalia et Latinae"; Macrob. Sat. i. 16. 14: "Comitiales sunt, 
 quibus cum populo agi licet, et fastis quidem lege agi potest, cum populo non potest, 
 comitialibus utrumque potest "; Verrius Flaccus, in Fast. Praen. ad Ian. 3 {CIL. i 2 . 
 p. 231); Ovid, Fast. i. 53; Fest. ep. 38. 
 
 6 For the various local Italian calendars with Mommsen's comment, see CIL. i 2 . 
 p. 203 fi. Especially useful is the Diei notarum laterculus, ibid. p. 290 ff. 
 
 6 On the distinction between dies fasti and dies nefasti, see Varro, L. L. vi. 29 f., 
 53; Macrob. Sat. i. 16. 14; Fast. Pram, ad Ian. 2; Ovid, Fast. i. 47; Fest. ep. 93; 
 Gaius iv. 29. 
 
 7 March 24 and May 24; p. 159, n. 8. 
 
 8 J une r 5- F° r tne meaning of this expression and the one given just above, see 
 Varro, L. L. vi. 31 f.; Ovid, Fast. v. 727; vi. 225; Mommsen, in CIL. i 2 . p. 289. 
 These three days were called fissi; Serv. in Am. vi. 37. 
 
 9 Dies endotorcisi or intercisi; Varro, L. L. vi. 31; Macrob. Sat. i. 16.3; Ovid, 
 Fast. i. 49; Mommsen, in CIL. i 2 . p. 290. 
 
STATUTES, PROCEDURE, AND CALENDAR 471 
 
 free for business. Equally distinct from the comitial days were 
 the dies fasti non comitiales, marked F, and in this volume 
 termed simply fasti. 1 They were reserved for judicial business. 
 The pre-Julian year contained a hundred and eight nefasti 2 and 
 forty-five fasti, leaving a hundred and ninety-one comitial days. 3 
 The ten days added by Caesar are all marked F. 4 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. 5 
 
 It seems probable that in early time market-days (nundinae) 
 were not wholly devoted to trade 6 and to the settlement of cases 
 at law, 7 but that they could be used equally well for voting 
 assemblies, 8 till the Hortensian statute of 287 declared those 
 
 1 Cf. Varro, L. L. vi. 30; Macrob. Sat. i. 16. 14. In a wider sense comitial days 
 were fasti. Naturally judicial business could be transacted on those comitial days 
 on which the assembly did not actually meet, or after its adjournment if time 
 remained; p. 315. A Clodian law of 58 permitted comitial legislation on all dies 
 fasti; p. 445. 
 
 2 Mommsen, in CIL. i 2 . p. 296; 109 according to Wissowa, Relig. u. Kult. d. 
 Rom. 368 f. 
 
 8 Mommsen, ibid. Wissowa, ibid., reckons 192 comitial days, which would give 43 
 non-comitial fasti. The following were the dies comitiales according to Mommsen : 
 Jan. 3, 4, 7, 8, 12, 16-28, 31 — in all xix. 
 Feb. 18-20, 22, 25, 28 — vi. 
 Mar. 3-6, 9-12, 18, 20, 21, 25, 26, 28-31 — xvii. 
 Apr. 3,4.24, 27-30— vii. 
 May, 3-6, 10, 12, 14, 17-20, 25-31 — xviii. 
 June, 4, 16-28, 30 — xvi. 
 July, 10-14, J 7> '8, 20, 22, 26-31 — xv. 
 Aug. 3, 4, 7, 8, 10-12, 15, 16, 18, 20, 24, 26, 28, 31 —xv. 
 Sept. 4, 7-1 1, 16-22, 24-28, 30 — xix. 
 Oct. 3-6, 9, 10, 12, 17, 18, 20-31 — xxi. 
 Nov. 3, 4, 7-12, 15-28, 30 — xxiii. 
 Dec. 4, 7-10, .16, 18, 20, 22, 24-28, 31 — xv. 
 
 4 Wissowa, ibid. 378. 
 
 5 Varro, in Macrob, Sat. i. 16. 19; L. L. vi. 29. 
 
 6 Vari;o, R. R. ii. praef. I; Serv. in Georg. i. 275. 
 
 7 That judicial business was done on those nundinae which were not marked 
 N(efasti) is clearly proved by the Twelve Tables, iii. 1-6 (Girard, Textts, p. 13), in 
 Gell. xx. i. 45 ff.; cf. especially § 47: "Trinis nundinis continuis ad praetorem in 
 comitium producebantur, quantaeque pecuniae iudicati essent, praedicabatur." 
 
 8 Dion. Hal. vii. 59. 3 : "&v Si minus (ayopais) <rvn6rres in t&v i.ypwv els rty 
 ir&Kiv 0! SiifUiTiKol tAs t a/jLcltpas ivoiovvTO T&v ibvluv Kal ras SUas reap' aWr/Xuv 
 i\dnPavav, ri re xoivi, iaav ijaav tciptoi Kara toOs p&fiovs Kal 6<ra i) |3ou\t) tiriTptyatv 
 
472 THE ROMAN ASSEMBLIES 
 
 marked F and C to be fasti, reserving them thus for judicial 
 business and prohibiting from them voting assemblies of every 
 kind. 1 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. 2 
 
 Lange, Romische Altertumer, ii. 649-54 ; Madvig, Verfass. und Verw. d. 
 rom. Staates, i. 246-73; Herzog, Rom. Staatsverf. i. 1 105-13; Karlowa, 
 Rom. Rechtsgesch. i. 388-448 ; Mommsen, Rom. Staatsr. iii. 314 f., 396-419; 
 in CIL. i. p. 203 if., 290 ff. ; Liebenam, in Pauly-Wissowa, Real-Encycl. iv. 
 482-4, 687-93, 705-8 ; Humbert, in Daremberg et Saglio, Diet. i. 1377, 1379 f. ; 
 Cuq, ibid. iii. 11 22 ff. ; Htibner, A., De senatus populique Romani aclis; 
 Ritschl, F., In leges Viselliam Antoniam Corneliam observations epigraphicae, 
 in Opuscula Philol. iv. 427-45 ; Egbert, Latin Inscriptions, 348-50 ; Cagnat, 
 Epigraphie Lat. 265-7 ; Marquardt, Rom. Staatsv. iii. 289 ff. ; Wissowa, 
 Religion und Kultus der Rdmer, 368 ff.; Comitiales dies, in Pauly-Wissowa, 
 Real-Encycl. iv. 716; Fowler, Roman Festivals, 8 ff. 
 
 airots, ij/Tjipov draXa/i/Ddroires IveKipovv; Rutilius, in Macrob. Sat. i. 16. 34 : " Ro- 
 manos instituisse nundinas, ut octo quidem diebus in agris rustici opus facerent, nono 
 autem die intermisso rure ad mercatum legesque accipiendas Romam venirent." 
 The words of Dionysius and Rutilius apply to all voting assemblies, not simply to 
 those of the plebs. 
 
 1 Gran. Licinian. in Macrob. Sat. i. 16. 30 (quoted p. 315, n. 2). 
 
 2 Cf. Lange, A'dm. Alt. ii. 518 f. 
 
CHAPTER XIX 
 
 A SUMMARY OF COMITIAL HISTORY 
 
 Originating in the simple gathering (contio) of the primitive 
 folk, the general assembly of Roman citizens came, under sacer- 
 dotal influence, to be grouped in curiae with a view to adding 
 order and solemnity to the meetings. Thus the Romans created 
 the comitia curiata. Not only the curiae, but also the later cen- 
 turies, classes, and tribes, originally existed independently of 
 the assembly for various administrative purposes and were 
 brought into connection with that institution as convenient sys- 
 tems of organization. At first ceremonial, the comitia curiata 
 came to be used for voting on resolutions. Gradually reducing 
 this earliest organized gathering to a formality, the Romans 
 successively introduced the centuriate and the tribal comitia. 
 Excepting for brief, transitional periods the assembly, whatever 
 its form, admitted all citizens who possessed the right of suf- 
 frage. Its power was at first slight vague, and chiefly re- 
 ceptive. Though in the regal period the people occasionally 
 approved or rejected judicial sentences, administrative plans, 
 and even proposals for changes in existing customs submitted 
 to them by the king of his own free will, the only function 
 which at that time they definitely acquired was the election of 
 their chief magistrate. 
 
 From the founding of the republic to the decemviral legisla- 
 tion (509-450) the magistrates and senate exercised almost ab- 
 solute control over the administration. At the very beginning 
 the comitia centuriata — a newly established timocratic institu- 
 tion — assumed the right to enact laws, which for a long time 
 were substantially limited to matters directly affecting the con- 
 stitution ; and the alleged Valerian centuriate statute made of 
 this body a supreme court to which any citizen condemned on a 
 capital charge was granted the privilege of appeal. In practice, 
 however, the law benefited those only of high rank who were 
 
 473 
 
474 THE ROMAN ASSEMBLIES 
 
 accused of political crimes. Meantime a new, more democratic 
 assembly under the presidency of tribunes of the plebs, meeting 
 by tribes after 471, usurped an extensive though ill-defined 
 power of fining and capitally condemning offenders against the 
 sanctity of plebeian officials. But this function, resting upon 
 an act of the plebs only and enforced by threats of violence, 
 was almost nullified by patrician opposition. It was doubtless 
 in this period that voting by heads arose in the comitia centu- 
 riata, whence it was adopted by the other assemblies. 
 
 The Twelve Tables (45 1-450) confirmed the comitia centuriata 
 in the rights it had previously assumed; and if not expressly, 
 at least by implication they granted legislative and judicial pbwer 
 to the tribunician assembly of tribes. A Valerian-Horatian 
 statute of 449 provided that resolutions approved by the senate 
 and carried by the latter assembly should have the force of law, 
 just as from the beginning the senatorial sanction (patrum auc- 
 toritas) was essential to the validity of curiate and centuriate 
 resolutions and elections. At the same time in conformity 
 with a law of the Twelve Tables an arrangement was made by 
 which the tribunes should bring their finable actions before the 
 tribes and those of a capital nature before the centuries. Soon 
 afterward the patrician magistrates began to use the tribes for 
 the election of inferior officials and occasionally for the ratifica- 
 tion of laws. 
 
 During the century following the decemviral legislation (450- 
 358) the almost absolute administrative power of the senate and 
 magistrates remained but slightly affected by the comitia. The 
 appointment of a dictator or the establishment of a special judi- 
 cial commission placed the citizens at the mercy of the govern- 
 ment. Although the comitia centuriata acquired the right to 
 ratify or reject declarations of offensive war (427) and though 
 the tribunes succeeded in enacting a few important plebiscites, 
 like the Canuleian and the Licinian-Sextian, the people made 
 little progress toward the free exercise of legislative and judicial 
 functions. With the enactment of a lex de ambitu in 358 the 
 tribes began to legislate concerning magistrates, with reference 
 not only to candidacy and qualifications but soon also to powers 
 and functions and to the creation of new offices. They passed 
 laws on finance and religion and on the qualification and ap- 
 
SUMMARY 475 
 
 pointment of senators ; they assumed the function of ratifying 
 or rejecting proposals for peace (321) and of admitting aliens 
 to citizenship. The tribes and the centuries began regularly to 
 exercise appellate jurisdiction. About the same time the people 
 acquired the function of appointing special judicial commissions, 
 and subjected the dictator to the law of appeal. In an effort 
 to throw off the control exercised by the nobility the Publilian 
 statute of 339 excluded patricians from the tribunician assembly 
 of tribes (a regulation afterward silently abandoned), and in 287 
 that of Hortensius rendered the approval of the senate and of 
 the patrician portion of it unessential to the validity of the pleb- 
 iscite. Meanwhile in administrative and in constitutional legis- 
 lation the comitia tributa made great gains at the expense of 
 the senate and magistrates and of the centuriate assembly. 
 
 The period extending from 358 to 287 was accordingly the 
 first great age of comitial legislative and judicial activity. The 
 strong popular tendency then manifested might have created a 
 real democracy, had it not been for (i) the cleverness of the 
 nobles in gaining control of the plebeian tribunate and in using 
 religion as a check on comitial freedom, (2) the rapid expansion 
 of the Roman power, which drew the public mind away from 
 internal politics, and which rendered the assembly not only an 
 inadequate representative of the citizens but also incompetent 
 for the functions devolving upon it. Many years passed, how- 
 ever, before this incompetency became serious. Though hence- 
 forth the comitia were in theory sovereign, they remained limited 
 by a want of initiative both in the act of assembling and in the 
 offering of resolutions, by the lack of free deliberation, by the 
 tribunician veto, and by the oblative auspices. After the enact- 
 ment of the Hortensian statute the comitia tributa enjoyed al- 
 most exclusive possession of the legislative function. The larger 
 share fell to the tribunician assembly, which excelled in aggres- 
 siveness, and which admitted as much freedom of debate as was 
 consistent with the spirit of the constitution — hence it was 
 preferably termed concilium. Notwithstanding these relative 
 advantages of the tribal assembly the adverse conditions above 
 mentioned led to an era of comitial stagnation (287-232), at the 
 close of which the tribunate of C. Flaminius brought a new out- 
 burst of activity (232-201). The assemblies now recovered all 
 
476 THE ROMAN ASSEMBLIES 
 
 they had lost in the preceding age and made fresh gains. Note- 
 worthy are the sumptuary, monetary, private, and family stat- 
 utes, and the recognition of the right of the people to grant 
 dispensations from existing laws. In the opinion of Polybius 
 the constitution was in this time at its best. The nobles ad- 
 mitted the theory of popular sovereignty, as they could well 
 afford to do in view of their thorough control of all govern- 
 mental institutions. In the era of the completed plutocracy 
 (201-134) they regularly resorted to the comitia in matters of 
 little political importance or in those in which they felt certain 
 of the results. Under these conditions fewer laws were enacted 
 for the benefit of the masses. The policy of the nobles was to 
 repress individual freedom by subjecting both magistrates and 
 assemblies to the plutocratic machine. Even the comitial ju- 
 dicia were subordinated to this end; and toward the close of 
 the period the people in establishing permanent courts began 
 through legislation to surrender their judicial power to the 
 senatorial class, while the senate, on the other hand, resumed 
 the function of dispensing from the laws and of appointing spe- 
 cial courts. In these ways the nobility was making great in- 
 roads on popular liberty. 
 
 In the beginning of the revolutionary period (134-30) the 
 tribal assembly, liberated for a time from servitude to the plu- 
 tocracy, became under the presidency of reforming tribunes the 
 ruling power at Rome. Its activity not only embraced the 
 whole field of administration but was directed by the Gracchi 
 to the creation of a new political constitution and to the regen- 
 eration of society. But its variable composition precluded con- 
 sistency of action. Though at times, as when controlled by the 
 rural element of the citizen body, it could be induced to adopt 
 liberal, statesmanlike measures such as the agrarian and colonial 
 laws of the Gracchi, the usual dominance of the ignorant and 
 unprincipled poor of the metropolis inclined it to a short-sighted, 
 selfish course of conduct — rendering it a powerful weapon in 
 the hands either of the demagogue or of the plutocratic senate, 
 equally effective for resisting genuine reforms and for destroy- 
 ing the institutions of the republic. As with the progress of 
 the revolution the conservative checks began to weaken and 
 disappear, the comitia became more and more subject to vio- 
 
SUMMARY 477 
 
 lence and coercion. The comitial prosecutions of this period 
 partook of the same revolutionary character. From the time 
 of Sulla the assemblies were overshadowed by the military 
 power. Under his dictation they surrendered to the senatorial 
 courts nearly all that remained of their judicial function, and 
 they seriously crippled their legislative power in favor of a reac- 
 tion to the pre-Hortensian constitution. After a brief interval 
 of bondage to the senate (81-70) they recovered their legislative 
 freedom, only to subserve for the future the alliance now formed 
 between the tribunes of the plebs and the great proconsuls. 
 From the accession of Julius Caesar to the dictatorship (49) 
 their power rapidly declined. They yielded to him a large 
 share of their legislative and even of their elective function. 
 After a brief period of pretended liberty following the assassi- 
 nation of the dictator, they lapsed with the fall of the republic 
 into utter insignificance. 
 
 The comitia had filled a large place in the history of the state. 
 They were the chief factor of constitutional progress and of 
 beneficent legislation. Their development and decline involved 
 the prosperity and the ruin of the republic. For the world they 
 have a higher value. The tribal assembly, supporting the ple- 
 beian tribunate, was the storm centre of long, heroic struggles 
 for human rights. The fact that it championed this cause, that 
 it met with some success in the conflict, that a Gracchus deemed 
 it worthy to undertake the social regeneration of the world, has 
 given the institution a universal and a permanent interest 
 

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498 THE ROMAN ASSEMBLIES 
 
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INDEX 
 
 Abbreviations: c. = consular, d. = dic- 
 tatorial, p. = pretorian, t. = tribunician. 
 The numbers in parentheses are dates 
 B.C. 
 
 Abacti, 391. 
 
 Abjuration of social rank, 156, 162, 163, 
 165. 
 
 Abrogation, of impcrium, 324, n. i, 342, 
 360, 390, 404; of tribunician power, 
 366, 367 f., 432, 455; of pretorian 
 power, 45s, n. 3. 
 
 Accensi velati, 66, 80 f., 207, 208, 228. 
 
 Accensus, summons comitia centuriata, 
 469. 
 
 Accerani, receive citizenship, 304. 
 
 Acclamation, 152, 202, 276. 
 
 Acculeia (curia), n, n. 7. 
 
 Accusation, fourth, 260. 
 
 Acilius Glabrio, M'., trial of (189), 319. 
 
 Adlectio of senators, 166, 418. 
 
 Adoptions, 160, 166; testamentary, 161. 
 
 Adrogatio, 156, 160 f.; of Clodius, 30, 443 ; 
 formula of, 161; for transitio ad ple- 
 bem, 162, 443. 
 
 Adscriptivi, 8o, n. 5. 
 
 Adsidui, 61. 
 
 Aediles, election of, 127; presidency of 
 contio, 141; of comitia, 292, 465 ; juris- 
 diction of before Hortensius, 290-2; 
 after Hortensius, 325-7; limited by 
 standing courts, 326 f. 
 
 Aediles cereales, 454, n. 5. 
 
 Aediles, curule, and lex curiata, 189; in- 
 stituted, 234, 291; presidency of co- 
 mitia, 292, 465 ; jurisdiction before Hor- 
 tensius, 291 f.; after Hortensius, 325-7. 
 
 Aediles, plebeian, instituted, 262; election 
 of, 262, 272; bailiffs of tribunes, 264, 
 n. 5; sacrosancti, n. % 274; Valerian- 
 Horatian law on, 274, 278 f.; relation 
 to tribunes, 290; jurisdiction, before 
 Hortensius, 195, 290-2; after Horten- 
 sius, 325-7; presidency of comitia, 292, 
 
 465- 
 
 Aemilius Lepidus, M., his imperium abro- 
 gated (136), 360, 367. 
 
 Aemilius Lepidus, M., consul (78), 423, 
 42S- 
 
 Aemilius Paulus, L., trial of (218), 318. 
 
 Aemilius Scaurus, M., trial of, for neglect 
 of duty (103), 323; for maiestas (91), 
 =57, n- 5- 
 
 Aerarii, 60, 62, 64, 65, 212, 318. 
 
 Aerarium, 62. 
 
 Aes equestre et hordearium, 93 f. 
 
 Aetates, in comitia centuriata, 222. 
 
 Africa, organized under lex Livia, 349; 
 agrarian conditions of, 387. 
 
 Ager, privatus, ownership of, 48 f.; regis- 
 tration in tribes, 50, 54, 60 f., 64; pub- 
 licus, agitation for assignment of, 270, 
 272, 295, 310 f., 360, 373 f., 435 f.; 
 laws for assignment of, see Legislation, 
 agrarian. 
 
 Ager compascuus, 365. 
 
 Ager, effatus, etc., 108. 
 
 Agrarian laws, see Legislation, agrarian. 
 
 Alba Longa, three tribes in, 4, n. 3. 
 
 Alban Mount, triumphs on, 293, 335, n. 2, 
 
 35°- 
 
 Aliens, treatment of, 38; under jurisdic- 
 tion of senate, 254; of people, 255; ex- 
 pulsions of, 273, 354, 370, 397, 434; 
 enrolment in colonies, 353 ; see Italians, 
 Latins. 
 
 Allies, unfair treatment of, 352; under lex 
 Iulia repetundarum, 442; see Italians, 
 Latins. 
 
 Ambitus, laws on, 295, 296 f., 348 f., 419, 
 
 43 1 . 43° I; 448, 454, 474- 
 
 Aniensis iuniorum, 217, 227, n. 2. 
 
 Annius Luscus, T., prosecution of (133), 
 322. 
 
 Annius Milo, T., prosecution of, 327. 
 
 Anquisitio, 259. 
 
 Antias, Valerius, on Scipionic trial, 319, 
 n. 7. 
 
 Antiquo, 467. 
 
 Antonius, L., tribune (45-44), 455. 
 
 Antonius, M., misuses oblativa, 113; trib- 
 une (49), 453 f.; consul (44), 454, u. 
 
 4, 457-9- 
 
 Apparitores, 416, n. 1. 
 
 Appeal, to comitia curiata, 182, 239; to 
 centuriata, 239 ff., 259, 287; to tributa, 
 259, 266, 268, 286 f., 292, 317, 325, 
 327; limited by first milestone, 241; 
 
 499 
 
500 
 
 INDEX 
 
 Appeal (continued) 
 
 from military imperium, 251 f.; from 
 tribunes in capital cases, 268; when 
 most used, 328; right offered as re- 
 ward, 378. 
 
 Appian, on new tribes (90), 57 f.; reelec- 
 tion of tribunes, 369; liability of jurors 
 for bribery, 378, n. 8; lex Boria (?), 
 385; lex Livia iudiciaria, 398; lex 
 Cornelia Pompeia (88), 407; election 
 of senators, 418. 
 
 Appuleius Decianus, C, tribune (98), 
 
 3=3 *• 
 Appuleius Saturninus, L., weakens veto, 
 117; interdicts Metellus, 257, n. 5; 
 murdered, 258 f., 396; tribune (103, 
 
 , 10°). 393-6- 
 
 Apxaipeirla, 406, n. 6. 
 
 Archives, for senatus consulta, 278 f. ; for 
 statutes, 437 f., 465. 
 
 Ardea, disputes with Aricia, 294. 
 
 Ardeates, concilium of, 122. 
 
 Aricia, disputes with Ardea, 294. 
 
 Army, relation of to folk, 2, 35; pre-Ser- 
 vian, 10 f., 35; Servian, 58 ff., 66 ff., 
 72-6; originally self-supporting, 61 f. ; 
 not identical with comitia centuriata, 
 68; Graeco-Italic, 69-71; primitive 
 Roman, 69, n. 4; like Athenian, 76; 
 post-Servian, 76^80; supernumeraries 
 in, 80-2 ; early republican, 83 f . ; polit- 
 ical importance of, 202. 
 
 Arpinates, receive suffrage, 352. 
 
 Arrogation, see Adrogatio. 
 
 As, sextantarian, 67, n. 4, 87, 213; declines 
 in value, 86 f. ; of ounce weight (uncial), 
 90, n. 4, 336; semiuncial, 91, 403. 
 
 Assembly, German, 33, 153, n. 3, 168, 
 169, 170, 172; Homeric Greek, 33, 
 'S3. n - 3. J 68, 169, 170 f. ; European, 
 152, 168-73; Athenian, 153, 168; 
 Alamannic, 153; Irish, 153, n. 3, 172; 
 Slavic, 168, 172 f. ; Lacedaemonian, 
 168; Celtic, 168, 170; Etruscan, 169; 
 Italian, 171; Frankish, 172. 
 
 Assembly, Roman, affected by omens, 109 ; 
 plebeian tribal, termed comitia, 120, 
 126-30; three organized forms of, 138; 
 origin of, 152; limited by senate in 
 early republic, 273, 284; development 
 of voting in, 275 f. ; laws on, 307; 
 packing of, 405; see Comitia, Con- 
 cilium, Contio. 
 
 Asylum, in theory of patrician state, 36 f . ; 
 connection with tribunate, 265. 
 
 Ateste, law found at, 454, n. 3. 
 
 Atilius Calatinus, M., trial of, 247. 
 
 Atinius Labeo, C, tribune (131), 264, n. 8. 
 
 Atius Labienus, T., tribune (63), 435; 
 prosecutes, Rabirius, 258. 
 
 Attus Navius, 10 1, n. 3, 105, n. 3. 
 
 Auctoritas, see Patrum auctoritas. 
 
 Auguraculum, 109, n. 7. 
 
 Augural districts, 108. 
 
 Auguria, 106. 
 
 Augurs, 105-8; number and character, 
 105 f.; functions, 106-8; have nuntia- 
 tio, in f. ; attend comitia, 107, 112 ff.; 
 election of, 120, 391, 435; in contiones, 
 146, n. 1; increased to fifteen, 416. 
 
 Auspices, 100-18; of Sodales Titii, 2, a. 
 6; private, 100-3; nuptial, 100, n. 4; 
 public, 100, 101, 103-18; impetrativa, 
 103-n; assemblies requiring, no f.; 
 oblativa, in-8; spectio, 112 ff.; under 
 Aelian and Fufian laws, 116 f., 279 f., 
 358 f.; misuse of, 117 f.; essential to 
 magistratus iustus, 187, n. 7; borrow- 
 ing of, 244, 245, 280, 315; violated by 
 consul, 248 ; of first tribunician election, 
 263, 11. 1; support nobility, 330 f. 
 
 Auspicium, 100, 102 f. ; deputed, 104, 244, 
 245, 280, 315; lex for, 179; see Au- 
 spices. 
 
 Auxilium, tribunician, 253, 263, 414. 
 
 Aventine hill, 2, n. 6; outside the Servian 
 tribes, 59; so-called lex Icilia for assign- 
 ment of, 238, 265, u. i, 272 f. 
 
 Bacchanalians, 254, n. 3. 
 
 Ballot, 467; laws on, 359, 369, 371, 389 f.; 
 use of in quaestiones, 420; in all co- 
 mitia, 469 ; boxes, 389, 467. 
 
 Belot, on ratings, 91-3. 
 
 Berns, on comitia and concilium, 126. 
 
 Bibulus, spectio of, 1 1 4, u. 9, 116, u. i, 439. 
 
 Bill, see Rogatio. 
 
 Birds, auspices from, 108. 
 
 Bird-seer, 105, n. 1. 
 
 BouXi;', 407. 
 
 Bribery, in trials, 378, 442; of magistrates, 
 429 f . ; electoral, see Ambitus. 
 
 Caecilius Metellus, L., tribune (213), 318. 
 
 Caecilius Metellus, Q., censor (131), 264, 
 n. 8. 
 
 Caecilius Metellus, Q., consul (60), 163. 
 
 Caecilius Metellus, Q., consul (57), 115. 
 
 Caecilius Metellus Numidicus, Q., prose- 
 cution of (100), 257, n. 5. 
 
 Caedes, see Murder. 
 
 Caeles Vibenna, 3. 
 
 Caelestia (auspicia), impetrativa, 108; 
 oblativa, 112; de caelo servare, 114; 
 of Bibulus, 439. 
 
 Caelian hill, 3. 
 
 Caerite franchise, 38, u. 1. 
 
 Caerites, 62. 
 
 Caesetius Flavius, L., tribune (44), 324, 455- 
 
 Calabra, curia, 154, 468. 
 
INDEX 
 
 SOi 
 
 Calare, 153 f. 
 
 Calatores, 154. 
 
 Calendar, 470-2; pontifical control of, 358. 
 
 Calumniator, Calumny, 400. 
 
 Camillus, see Furius Camillus. 
 
 Campanian land, vectigalia of, 337, 351, n. 
 5. 3 6 5 f •> 373 ; under lex Iulia, 439, 44°- 
 
 Campanians, punished for revolt, 254, 340; 
 senatus consultum on, 353. 
 
 Campus Marti us, meeting place of centuries, 
 108, 203, 469; of tribes, 465; presi- 
 dent's platform in, 109; elections in, 
 115, 194, n. 2; inauguration in, 156; 
 execution in, 258. 
 
 Candidacy, in absentia, 436 f., 449; see 
 Ambitus. - 
 
 Cannae, effect of disaster at, 343. 
 
 Capital punishment, under kings, 182, 
 239 f. ; voted by centuries, 240 ff ., 286 f . ; 
 in early republic by curiae and tribes, 
 266-9; abolished by lex Porcia, 250 f. ; 
 avoided by exile, 344 ; see Appeal. 
 
 Capite censi, 89, 394. 
 
 Capitoline hill, 2; beyond Servian tribes, 
 59; auspication on, 109, 154; comitia 
 tributa on, 465; curiata on, 468. 
 
 Capua, plan to colonize, 373, 382, n. 9; 
 lex Iunia on, 410. 
 
 Carpenters, in comitia centuriata, 206. 
 
 Carthage, colonization of, 383, 385. 
 
 Cassius, Sp., 238, 244, 310. 
 
 Catiline, 437. 
 
 Cato the Elder, see Porcius, M., the Elder. 
 
 Cato the Younger, 111, 126. 
 
 Cattle, standard of value, 269, 287. 
 
 Caudium, effect of defeat at, 302 f. 
 
 Cavalry, see Equites. 
 
 Celeres, 73. 
 
 Censi, 90, n. 5. 
 
 Censoriae Tabulae, 67, 85, 204. 
 
 Censors, make up tribes, 60; relation to 
 aerarii, 60, 62, 64 f. ; instituted, 79, 
 234, 237; auspices of, 103; auspicate 
 lustral comitia, 1 1 1 ; preside over contio, 
 141; inspect arms, 204; election of, 
 229; centuriate sanction, 237; laws on, 
 2 37> 3 00 > 3°7; grant citizenship, 283, 
 304; prosecution of, 318; reelection 
 forbidden, 332; limited by comitia, 
 337; supervise morals, 332, 337, 428; 
 tribunes interfere with, 351, n. 5; assign 
 seats to senators, 356 f.; let out taxes of 
 Asia, 380; stigma of, 445, 450, u. 2. 
 
 Census, connection of with tribes, 50, 54, 
 59 ; money valuation in, 65 ; instituted, 
 S3, 68, 11. 7, 76; Greek, 71; post-Ser- 
 vian, 77; object of, 204; after reform, 
 216; under lex municipalis, 457. 
 
 Centuria procum (patricium), 67, n. 3, 
 75, 11. 1; of the tardy, 208, 226. 
 
 Centuriate organization, Fabius on, 52 f., 
 67; Livy and Dionysius on, 66, 68; 
 Servian, 72-6; post-Servian, 76-80, 
 201 ff.; see Comitia centuriata. 
 
 Centuries, 66 ff. ; number of, in classes, 
 66, 76 f. ; in the classis, 73, 76; in post- 
 Servian phalanx, 76 f . ; in fifth rating, 
 77; supernumerary, 80-82, 205-9, 224; 
 of juniors, 82 f., 205; of seniors, 205; 
 after reform, 216 ff. ; increased, 219 ff. ; 
 see Comitia centuriata. 
 
 Centurions, in comitia centuriata, 211; 
 in jury service, 458. 
 
 Ceres, connection of with plebeian organi- 
 zation, 264, 11. 7; forfeiture of estates 
 to, 267, 274; senatus consulta in tem- 
 ple of, 278 f., 465, n. 2. Priestesses of 
 granted citizenship, 353. 
 
 Chalkidae, an Attic gens, 28. 
 
 Chariot, in war, 69, 74. 
 
 "KeipoTovla, 406, n. 6. 
 
 Chicken auspices, 107, 118, n. 2. 
 
 Cicero, on early Roman history, 26; ac- 
 count of centuriate system, 67, 205, n. 5, 
 215, 11. 2, 221 f. ; criticises Antony's 
 obnuntiation, 1 1 1, n. 4 ; attitude toward 
 auspices, 118, n. 2; usage relative to 
 comitia and concilium, 126-31; dis- 
 tinction between whole and part, 130, 
 466; on curiate law, 184 f.; on capital 
 trials, 267, 268, 11. 6; curule aedile, 327; 
 on frumentations, 401, n. 5; supports 
 Manilian rogation, 434; consul (63), 
 435-7; commends lex Iulia repetun- 
 darum, 442. 
 
 Cinna, see Cornelius Cinna. 
 
 Circus, Flaminius, 465. 
 
 Cistae (ballot boxes), 389, 467. 
 
 Citizenship, early idea of, 2; liberality of 
 Rome in granting, 38, 43 f.; of other 
 states, 44, n. 1; granted by king, 24, 
 181, 304; by censors, 283, 304; by 
 tribes, 304 f ., 352 ; by founder of colony, 
 
 353. 395 ; t° priestesses of Ceres, 353; 
 to Latins and Italians, 401 f. ; less 
 freely, 353 f.; as reward, 393, n. 2; 
 value enhanced, 354; usurpations of, 
 
 354, 397; optimo iure, 355; sine suf- 
 fragio, 62, 63, 64, 304, n. 4, 305, 352. 
 
 City, relation of to country, 55 f. 
 
 City-state, origin of, 6. 
 
 Cives sine suffragio, 44, 62, 63, 64, 352. 
 
 Classes, 66 ff . ; relative size of, 83 ; the five 
 and their ratings, 84-91; Smith on 
 origin, 85, u. 3 ; soldiers recruited from, 
 86, 394; number of centuries in, after 
 reform, 216 f.; parts of tribes, 219 f.; 
 social, 16 ff.; Athenian, 71; in theatre, 
 
 356 *• 
 Classici, 72, n. 2, 76, 85, 90, 216, n. 1. 
 
502 
 
 INDEX 
 
 Classicum, 469. 
 
 Classis, original meaning of, 72, n. 1 ; and 
 infra classem, 72; like zeugitae, 76; 
 array in battle, 79; changed meaning, 
 84 f.; rating of, 87; fifth, 88 f.; first, 
 89 f.; procincta, 203; number of cen- 
 turies in fifth, 208; see Classes. 
 
 Claudia, trial of, for perduellio (246), 326. 
 
 Claudia (tribus), 56. 
 
 Claudius, augur, fined, 328. 
 
 Claudius, historian, on Claudine treaty, 302. 
 
 Claudius, App., decemvir, trial of, 246. 
 
 Claudius, App., consul (179), 192, n. 3. 
 
 Claudius, C, censor (169), trial of, 253. 
 
 Claudius, M., trial of, 246. 
 
 Claudius Caecus, App., 307; prosecution 
 of, 247; alters tribes, 64; appraise- 
 ments, 65, 86; influences censorship, 
 
 33*- 
 
 Claudius Marcellus, C, consul (50), at- 
 titude of toward auspices, 118, n. 2. 
 
 Claudius Marcellus, M., consul (215), and 
 curiate law, 197; lex for abrogating 
 imperium of, 342. 
 
 Claudius Pulcher, App., consul (54), 194, 
 n. 2; author of work on augury, 118, 
 n. 2 ; view of curiate law, 193. 
 
 Claudius Pulcher, P., consul (249), trial of, 
 248, 3T7. 
 
 Clients, ancient view as to origin of, 22; 
 rights, 22 f.; Niebuhr on, 27; Meyer 
 on, 55; in Claudian tribe, 56; in popu- 
 lus, tribes, and curiae, 24, 262, n. 2, 
 271; vote in comitia curiata, 25, 32, 
 271; in assemblies, 120, 276; Momm- 
 sen on, 34 ; in war, 22, 78, n. 6. 
 
 Clodius Pulcher, P., tribune (58), 127, 444- 
 6; transitio ad plebem, 162 f., 443; 
 prosecutes Milo, 195. 
 
 Clustumina (tribus), 56. 
 
 Coinage, earliest copper, 86 f. ; Flaminian 
 law on, 336; Clodian, 392; Papirian, 
 403. 
 
 Coins, plated, 336, 398, n. 6. 
 
 Collegia, laws on, Clodia, 445; Licinia, 
 447 f.; Caesar's edict, 457, n. 6. 
 
 Collegium (College), of accensi velati, 80, 
 207; of fabri, 206, 226; of tubicines 
 and cornicines, 206 f.; tribunician, 269; 
 of sacerdotes, 39 r f. ; connection of 
 latter with tribes, 7 ; political character, 
 106, n. 6, 10, 113; enlarged by Sulla, 
 416; supernumeraries in, 454, a. 6; 
 see Augurs, Epulones, etc. 
 
 Collina (tribus), 50. 
 
 Colonia Genetiva Iulia, 453, n. 4. 
 
 Colonies, founded by senate, 284; trium- 
 viri for conducting, 307, 3ir, 350; laws 
 for founding, 350; founder's right to 
 enroll aliens, 353; Sempronian, 372, 
 
 382 f.; regulations of in Thorian law, 
 386 ; epoch in history of, 394 ; founded 
 by Caesar, 453. 
 
 Comitia, relation of to augural districts, 108; 
 effect of celestial omens on, 109; at- 
 tended by augurs, 112 ff.; meet at sun- 
 rise, 115; distinguished from concilium, 
 119-38; defined by Laelius, 119; Livy's 
 usage relative to, 1^-25; sacerdotal 
 usage, 125 f.; Sallust's, 126; Cicero's, 
 126-30; literary and juristic, 131; true 
 distinctions, 131-8; uses classified, 
 132-4; developed, 135-7; meaning of, 
 135; relation to concilium and contio, 
 138; not summoned by promagistrate, 
 141; formed from contio, 150; connotes 
 organization, 154; iusta, r87, n. 7; 
 in camp, 194; right to establish special 
 courts, 254, 390; judicial procedure in, 
 259 f. ; limited by senate and magis- 
 trates, 273, 284, 344 f.; development of 
 voting in, 275 f.; gain power, 315 f.; 
 permit triumphs, 334 ; regulate festivals, 
 340 f. ; influence of Flaminius on, 343 ; 
 part of in government, 344; lack ini- 
 tiative, 345 f. ; most active under C. 
 Gracchus, 384; worn out, 405; under 
 senatorial control, 406-8; yield judicial 
 function to courts, 420 f. ; decline, 
 450-61 ; limited by Sulla and Caesar, 
 413 f., 420 f., 452, 454 f., 457. 477! Pu- 
 dency of, 465, 468, 469; length of ses- 
 sions, 470; composition of, 473; sum- 
 mary of history, 473-7. 
 
 Comitia calata, 152-67; auspicated, 104; 
 wills made in, 139, n. 5, 157-9; a ^ so 
 termed contio, r4o, n. 1 ; definition of, 
 153 f. ; place of meeting, 154; religious 
 objects, 154-6; centuriata, 154, n. 4, 
 156; voting in, 156 f. ; adrogatio in, 
 160 f.; testamentary adoptions in, 161; 
 transitio ad plebem in, 162 f. ; grant of 
 patriciate in, 164-6. 
 
 Comitia centuriata, principle of, 12 f.; 
 convoked by hornblower, 31; advance 
 beyond curiata, 33, 473; ascribed to 
 Servius, 66 ff., 201 ; described in Cen- 
 soriae Tabulae, 67; non-existent under 
 kings, 68, 201; developed from army, 
 68 f ., 202 ff. ; distinguished from army, 
 83, 203, 205 ff. ; relation to augural 
 districts, 108; place of meeting, 108, 
 143, 203, 469; auspicated, 104, no; 
 attended by augurs, 114; enact privi- 
 legia, 127 f. ; recall Cicero, 128; lustral, 
 141, 204 f. ; no deliberation in, 143; 
 voting in, 157, 211, 469 f.; declare war, 
 177, 230-2, 283, 295; curiate sanction, 
 184, 229; pass lex de censoria potestate, 
 I ^5, 237; confer imperium, 188; elect 
 
INDEX 
 
 503 
 
 Cbmitia centuriata {continued) 
 
 praetor in Spain, 192 ; organization of, 
 201-28; early republican, 201-11; 
 presidency of, 203, 236, 469; supernu- 
 meraries in, 205-9 J sex suffragia in, 209 ; 
 new equestrian centuries in, 209 f.; 
 table of centuries, 210; reform of, 
 211-28; essentials of, 212; date, 212 f.; 
 gradual, 214 f.; five classes after, 2r6; 
 tribes, 216 f.; Niebuhr on, 217-9; 
 Huschke, 219; Pantagathus, 220; 
 Mommsen, 221-4; Lange, 224 f.; 
 Klebs, 225; voting after, 225, 227, 
 469 f. ; supernumeraries, 226; func- 
 tions, 229-61; elective, 229 f. ; legis- 
 lative, 230-9 ; Twelve Tables on, 233 f. ; 
 freed from patrum auctoritas, 235 ; yield 
 to tribes, 239 ; judicial, 239-61 ; appeal 
 to, 239-42, 268; tribunidan cases be- 
 fore, 245-53 ; limited by special courts, 
 3 53 _ 7; try Rabirius, 258 f.; procedure, 
 259 f.; pass lex de Aventino, 272; in- 
 stitute Decemvirate, 273; divide juris- 
 diction with tribes, 286 f.; lose regula- 
 tion of magistracy, 305. 
 
 Comitia curiata, 10, 168-200; not identical 
 with army, 11; voting in by genera 
 hominum, 12; include clients and ple- 
 beians, 24 f., 32 ; convoked by lictor, 31 ; 
 lack initiative, 33, 173; auspicated, iro, 
 112; pass lex deimperio, 112; attended 
 by augurs, T13; origin, 152 f., r68-73, 
 473;. limited rights of, T73 ff. ; subject 
 to patrum auctoritas, 174 f. ; on war 
 and peace, 174-7; legislation in, 177- 
 82; jurisdiction of, 182, 339; elections, 
 182 ff., T96, 473; lex de imperio, 184- 
 96; become formality, T96-8; early 
 republican, 232; presidency of, 262; 
 composition of, 262, 271; place of 
 meeting, 468. 
 
 Comitia sacerdotum, 120, 129, 341, 391, 
 458- 
 
 Comitia tributa, principle of, 12 f. ; alleged 
 trial of Coriolanus, 56, n. 4; auspica- 
 tion of, 104, no; attended by augurs, 
 114; Livy's use of term, 120; Sallust's, 
 126; Cicero's, 126-9; incompetent to 
 pass privilegia, r28; of whole people, 
 129 f. ; curiate sanction, 184; confer 
 imperium, 188; under pretorian presi- 
 dency, r93; ratify Cornelian laws, 236; 
 gain at expense of centuries, 239 ; legal- 
 ize voluntary exile, 249, 256, 257, n. 5, 
 267, 446; procedure in, 259 f., 465-8, 
 origin of, 262, 270-2, 473 f. ; pre- 
 decemviral jurisdiction, 267-9, 273; 
 patricians in, 27T, 275-7; elective, 272; 
 no legislation before Decemvirate, 
 272-4; conditioned legislative power j 
 
 granted to, 274-9; advantages over 
 centuriata, 280; from 449 to 287 B.C., 
 283-316; jurisdiction after Hortensius, 
 317-29; tribunician, 317-25; aedilician 
 325-7; pontifical, 327 f. ; era of repose 
 in legislation, 330-3; Flaminian, 333- 
 46 ; Plutocratic, 346-62 ; from Gracchi 
 to Sulla, 363-411; subjected to senate 
 by Sulla, 413 f. ; from Sulla to Octavia- 
 nus, 412-61; preferred by Caesar, 452; 
 decline of, 450 ff. 
 
 Comitial days, 470-2; vitiated by spectio, 
 Iz 5> by proclamation of holidays, ri6; 
 senatorial sessions forbidden on, 424; 
 lex Gabinia on, 429 ; lex Clodia on, 445. 
 
 Comitiatus maximus, 241, 268. 
 
 Comitium, meeting-place of curiae, 10, 
 468; of tribes, 465 ; auspication in, 109. 
 
 Commentarii Servi Tullii, 67. 
 
 Commission, special, see Quaestio extra- 
 ordinaria. 
 
 Commissioners, see Duumviri, Triumviri, 
 etc. 
 
 Compitum Fabricium, 9. 
 
 Concilium, distinguished from comitia, 
 119-38; defined by Laelius, 1 19 ; Livy's 
 use of term, 119-25; Mommsen on, 
 121-4; Caesar's usage, 125 f. ; Sallust's, 
 r26; Cicero's, r30 f. ; literary and juris- 
 tic, 131; true distinction, 131-8; uses 
 classified, 132-4; developed, 135-7; 
 relation to comitia and contio, 138 ; 
 of nobles, 124, 125; populi, 120-6; 
 plebis at Capua, 125. 
 
 Concordia ordinum, 428. 
 
 Consobrini, intermarriage of, 340. 
 
 Conspiracy, special court for trial of, 254, 
 3ro; judicial, 378; lex Furia on, 396, 
 n. 2. 
 
 Constitution, equilibrium of Roman, 343-6, 
 
 361 f- 
 
 Consuls, auspices of, 103; obnuntiate, 114; 
 watch sky, 115; proclaim holidays, 116; 
 call to concilium, 121; to contio, 142; 
 election of, 189, 229; intermediate 
 between senate and comitia centuriata, 
 235; laws on, 237, 296, 299, 307; given 
 absolute authority, 273; depend on 
 people, 345; minimal age of, 415; presi- 
 dency of assemblies, 465, 468, 469. 
 
 Consulta, see Senatus consulta. 
 
 Contio, 139-51; interrupted by storm, 109; 
 auspicated, no f., 122, 144; sacerdotal 
 use of word, 125 f., 139 f. ; relation to 
 comitia and concilium, 138; derivation 
 of, 139; composition, 140; presidency, 
 140 f. ; tribunician, 142, 144; witness- 
 ing, 142; preliminary to comitia, 143; 
 opening of, r44 f. ; speaking in, 145 f. ; 
 women in, 146 f. ; change to comitia, 
 
5°4 
 
 INDEX 
 
 Contio (continued) 
 
 150, 465, 469; earliest form of assembly, 
 
 152, 156,473; part of in elections, 183; 
 
 military, 202, 230; judicial, 259 f., 320; 
 
 plebeian, 263, 269, 273, 425 f., 430; for 
 
 opposing Manilian law, 434; oath in, 
 
 441. 
 Conubium, connected with auspices, 101; 
 
 between near kin, 339 f.; freedmen 
 
 lack, 354. 
 Conventio, 139, 140, u. 1 ; see Contio. 
 Conway, on social classes, 38, n. 2. 
 Cooptation, of patricians, 164, n. i, 166; 
 
 of sacerdotes, 416. 
 Cornelian constitution, 423-8. 
 Cornelius, C, tribune (67), 429 f. 
 Cornelius Cinna, L., consul (87), 409; 
 
 assigns new citizens to tribes, 58, 409; 
 
 measures of vetoed by tribunes, 257 , n. 5. 
 Cornelius Dolabella, L., naval duumvir 
 
 (180), fined by pontiff, 328. 
 Cornelius Merula, L., prosecution of (87), 
 
 257. n. 5- 
 Cornelius Scipio Aemilianus, P., punishes 
 
 soldiers, 251 f. ; dispensed from laws, 
 
 360; modifies Sempronian agrarian 
 
 law, 367. 
 Cornelius Scipio Africanus, P., trial of 
 
 (185), 319 f. ; favors senators at theatre, 
 
 356 f. 
 Cornelius Scipio Asiagenus, L., trial of 
 
 (185). 255. 319 f- 
 Cornelius Sulla Felix, L., treatment of new 
 citizens, 58; use of assemblies, 236; 
 increases quaestiones, 257 f., 324; re- 
 actionary, 403, 414; consular legisla- 
 tion of (88), 405-8; dictatorial (82-81), 
 412-23; limits comitia, 413 f., 420 f., 
 
 477- 
 Cornicines, 81, n. 2-4, 206; see Musicians. 
 Corpus, Augustale, Iulianum, etc., 220. 
 Cotta, L., opinion of on Cicero's interdict, 
 
 128. 
 Crier, see Praeco. 
 Crimes, treatment of, by Sulla, 258, 419- 
 
 21; early legislation on, 357; standing 
 
 courts on, 358; Julian laws on, 455. 
 Crucifixion, punishment for perduellio, 258. 
 Curatores, of tribes, 220, n. 4; viarum, 424, 
 
 n. 6. 
 Curia Calabra, 154, 468. 
 Curiae, 8-1 1; social composition of, 24, 
 
 32, 271; new citizens admitted to, 44; 
 
 relation of to land, 48; see Comitia 
 
 calata, curiata. 
 Curiales, 9. 
 
 Curio, 9; maximus, 10, 120, 341, 391. 
 Cursus honorum, 347, 415. 
 Custodes tabellarum, 389, 466, u. 4, 467. 
 Cyrene, tribes of, 7, n. i. 
 
 Damnum, lex Aquilia on, 332 f. 
 
 Debts, legislation on, 296, 298, 310, 312, 
 
 313. 3Si f., 408, 409 f., 437. n - 7. 45 2 - • 
 De caelo servare, 114 ff. 
 Decemviri agris adsignandis, under Ser- 
 
 vilian rogation, 186, 187, 259, 435; 
 
 under Livian law, 398, 400. 
 Decemviri legibus scribundis, presidency of 
 
 contio, 141; election of, 229; without 
 
 appeal, 240; instituted, 273. 
 Decemviri sacris faciundis, 296, 308; elec- 
 tion of, 391 ; increased to quindecemviri, 
 
 416. 
 Decianus, see Appuleius Decianus. 
 Decius, censor (304), 64. 
 Decius, tribune (120), 256. 
 Decuriae (decades), of soldiers, n f.; 
 
 (decuries) of jurors, 427, 458. 
 Decurions, 12. 
 Decurionate, municipal, 457. 
 Demagogism, encouraged by fomentations, 
 
 373- 
 
 Democracy, incipient, 308; rise of pre- 
 vented, 346. 
 
 A77/405, 17, 407 f. 
 
 A^jUoriKol, 17. 
 
 Denarius, value of, 87, n. 4, 336. 
 
 Detestatio sacrorum, 156, 161, 162, n. 7, 
 163. 
 
 Di penates, prosecution for neglecting, 
 323; oath by, 380. 
 
 Dice, prohibited, 337. 
 
 Dictator, auspices of, 103, 112; passes lex 
 curiata, 112, 189, 191; presidency of 
 contio, 140; of comitia, 465, 468, 469; 
 temporary monarch, 182 ; optima lege, 
 187; instituted, 233; preferred tribes 
 for legislation, 236, 416, u. 1, 452; 
 abolition of office, 237, 459 ; subjection 
 to appeal, 241 f . ; presides over special 
 court, 254; appointed at command of 
 senate, 273, 284; rei publicae consti- 
 tuendae, 412. 
 
 Dies, comitiales, 470-2; nefasti, 470 f. ; 
 endotorcisi, intercisi, 470, n. 9; fasti, 471. 
 
 Diodorus, on plebeian tribunate, 272, n. 2 ; 
 admission of plebs to consulship, 293; 
 Sempronian law on military service, 
 382. 
 
 Dionysius, on early Roman history, 25, n. 3, 
 26 f. ; Servian tribes, 50, 53 ; centuriate 
 system, 66, n. 1, 67, 201, n. 3 ; first tribal 
 meeting, 262, n. 2; patricians in tribal 
 assembly, 275. 
 
 Diribitio, 467. 
 
 Diribitores, 467, n. 10. 
 
 Dispensations from law, 307 f., 343, 360, 
 366, 368 f ., 449 ; senate versus people on, 
 430 f. ; from lex curiata, 186, 190, 195, 
 199. 
 
INDEX 
 
 5°5 
 
 Divination, forms of, 108 f. ; see Auspices. 
 
 Divisores, 431. 
 
 Domi tius Ahenobarbus, Cn., tribune (103), 
 
 3»3- 
 Draco, law of on phratry, 28. 
 Duoviri, see Duumviri. 
 Duumviri navales, instituted (311), 306 f. 
 Duumviri perduellioni iudicandae, 243 f. ; 
 
 give way to tribunes, 248; for trial of 
 
 Rabirius, 258. 
 Duumviri sacris faciundis, 296. 
 Dyarchy, established by Gabinian law (67), 
 
 433- 
 
 Edicts, pretorian, 431 f.; of Caesar, 457, 
 n. 6. 
 
 Effatus ager, 108. 
 
 Egeria, 177. 
 
 Election, annulment of on religious ground, 
 107; prevented by oblativa, in, 113; 
 of king, 182-4; and curiate law, 184- 
 200; by centuries, 229 f., 331; of ple- 
 beian officials, 262 f. ; by tribes, 271 f., 
 a8 5 f -i 33 1 ; ballot in, 359; theory of 
 popular control, 360; see Ambitus, 
 Magistrates. 
 
 Elicius, 100, 11. 6. 
 
 Emancipation, in German assembly, 153; 
 in transitio ad plebem, 163. 
 
 Ennius, granted citizenship, 353. 
 
 Epidius Marullus, C, tribune (44), 324, 455. 
 
 Epilepsy (morbus comitialis), 112. 
 
 Epulones, instituted, 347; election of, 391 ; 
 increased to seven, 416, n. 3. 
 
 Equites, relation of to tribes, 7; originally 
 self-supporting, 62; in centuriate sys- 
 tem, 66, 209 f. ; before Servius, 73 f. ; 
 in Servian army, 75 f. ; in 214 B.C., 
 92; census of, 92, 96 f. ; post-Servian, 
 93-7; funds for, 93 f.; opened to ple- 
 beians, 94; equo privato, 94 f. ; equo 
 publico, 95 1., 209; in comitia centuriata, 
 209 f.; prerogative, an; after reform, 
 212, 215, 220, 224, 226 f.; given seats 
 at theatre, 357, 428; liable to law against 
 bribery, 378; made superior to senators, 
 381; desert C. Gracchus, 384; associ- 
 ate with senators in courts, 402, 427 f ., 
 
 455- 
 Esquilina (tribus), 50, 220. 
 Eupyridae, Attic gens, 28. 
 Exercitus urbanus, 203. 
 Exile, voluntary, legalized by comitia tri- 
 
 buta, 249, 256, 257, n. 5, 267, 446. 
 Extortion, see Repetundae. 
 
 Fabius, Q., trial of (389), 246, 288. 
 Fabius Buteo, censor (241), 213. 
 Fabius Gurges, Q., consul (292), resolution 
 on imperium of, 289, 306. 
 
 Fabius Maximus, Q., consul (215), and 
 curiate law, 197. 
 
 Fabius Maximus Servilianus, Q., trial of, 
 for murder, 257, u. 5. 
 
 Fabius Pictor, sources of for early Rome, 
 26; on Servian tribes, 51, 52-4; cen- 
 turiate system, 67, 85. 
 
 Fabius Pictor, Q., praetor (189), trial of, 
 3^7 f- 
 
 Fabius Rullianus, Q., alters tribes, 64. 
 
 Fabri (mechanics, sappers, workmen), 66, 
 67, n. 3, 68, 81; assigned to classes, 
 205 f. ; after reform, 226. 
 
 Family law, changes in, 339 f., 352. 
 
 Fasti, read in comitia calata, 154 f. ; dies, 
 471 f. ; Clodian law on, 445. 
 
 Faucia (curia), n, n. 7; ill-omened, 112. 
 
 Ferentarii, 80, n. 5. 
 
 Festivals, regulated by law, 340 f. 
 
 Fetialis, 176, 265. 
 
 Finance, legislation on, 297 f., 310 f., 335- 
 7. 35 1 *•. 39*. 403. 422, 438. 
 
 Fines, appealed to tribes, 259, 269, 286 f., 
 292, 317 ff., 344. 
 
 Flamen, curial, 10; Dialis, 203, n. 7. 
 
 Flaminian, era, 333-46; Circus, 465; Mead- 
 ow, 465. 
 
 Flaminius, C, and curiate law, 191 ; mone- 
 tary law of, 191 f., 336; censor, 213; 
 era of, 333-46; agrarian law, 334 f.; 
 supports Claudian law, 335 ; influences 
 legislation, 337 f., 343; assigns libertini 
 to city tribes, 355; energizes comitia, 
 
 343, 475- 
 
 Flavius, M., trial of, 291. 
 
 Fordicidia, 9. 
 
 Foreign affairs, administered by senate, 
 273; then fell partly to comitia tributa, 
 303 ; laws on, 349 f. 
 
 Forgery, 420. 
 
 Foriensis (curia), n. 
 
 Formiani, Fundani, etc., receive suffrage, 
 352- 
 
 Formulae, legal, 464. 
 
 Foraacalia, 9, n, n. 8. 
 
 Forum, assembly in, 267, 327, 431, 439, 
 n. 15, 465. 
 
 Fowler, W. W., on lex Scantinia, 357, n.13; 
 reelection of tribune, 369, n. 4; Sem- 
 pronian lex iudiciaria, 374, u. 7. 
 
 Freedmen, see Libertini. 
 
 Fregellae, revolt of, 255. 
 
 Frohlich, on Sulpicius, 405, n. 2; Corne- 
 lian-Pompeian law, 406, n. 6; lex 
 Cornelia de tribunicia potestate, 414. 
 
 Frumentations, 372 f., 395, 398, 401; 
 abolished by Sulla, 422; restored by 
 Lepidus, 423, u. 8; further legislation 
 on, 424, n. 5, 444 f. ; curtailed by Caesar, 
 453; under lex municipalis, 456. 
 
506 
 
 INDEX 
 
 Fulvius, Cn., praetor (212), trial of, 240 f. 
 Fundus populus factus, 401, n. 8. 
 Furius, L., past consul, trial of, 268. 
 Furius, P., tribune (98), 257, n. 5, 323. 
 Furius Camillus, M., and equestrian fund, 
 
 94; dictator, 202; trial of, 244 f., 288, 
 
 290. 
 Purtum (theft), 339, n. 5; prosecution for, 
 
 321; under lex Hostilia, 337, u. 5; 
 
 Plautia, 424; see Peculatus. 
 
 Gabinius, A., tribune (67), 429 f., 432 f. 
 
 Gabinius, Q., tribune (139), 359- 
 
 Gabinus ager, 108. 
 
 Gades, receives citizenship, 454. 
 
 Galeria iuniorum, 217. 
 
 Genera, identified with gentes, 12. 
 
 Gens, meaning family, lineage, 30 f., 102. 
 
 Gentes, 11-13; unconnected with curiate 
 system, 13; social composition of, 
 28-31; defined by Scaevola, 28, n. 7; 
 maiores et minores, 35 f. ; origin of 
 patrician, 37, 11. 4; relatively late, 48, 
 n. 2 ; common land of, 49 ; relation to 
 rural tribes, 35, 50, 55, n. 1; in war, 
 78, n. 6. 
 
 Gentiles, Gentilitas, 28, n. 7, 29, 30. 
 
 Gifts, leges Publicia and Cincia on, 338 f. 
 
 Governors, provincial, of the Spains, 346 f. ; 
 under Porcian laws, 349; Sempronian, 
 374, 381 f. ; Adlian, 376 f. ; Julian, 
 442, 45 6 - 
 
 Gracchi, see Sempronius. 
 
 Grain, see Frumentations. 
 
 Greenidge, on social classes, 38, 11. z. 
 
 Guilds, see Collegia. 
 
 Hackel, on lex Iulia municipalis, 457, n. 5. 
 Heredium, 49. 
 
 Herennius, tribune (60), 162, 438. 
 Hernicans, receive civitas sine suffragio, 305. 
 Herzog, on curiate law, 183, a. 5; Sul- 
 
 picius, 405, n. 2. 
 'Ercupela, 8, n. 6. 
 Holidays, non-comitial, 116. 
 Horatius, trial of for perduellio, 121. 
 Hornblowers, in centuriate system, 66. 
 Horsemen, see Equites. 
 Hortensius, Q., dictator (287), 313. 
 Hosticus ager, 108. 
 Hostilius Tubulus, L., trial of (141), 255, 
 
 11. 1. 
 Huschke, on Servian tribes, 51; ratings, 
 
 86; reformed comitia centuriata, 219. 
 
 Ihne, on trial of Opimius, 256 f.; popular 
 interference with censors, 351, n. 5; 
 policy of Marius, 389; Sulpicius, 405, 
 n. 2. 
 
 Imperium, true (iustum), 102 f, 187, n. 7; 
 
 confirmed by curiate law, 188 ; granted 
 by comitia, 188, n. 2; by senate, 191, 
 284; transition of without curiate law, 
 196 f. ; promagisterial, 305 ; abrogated, 
 324, n. 1, 342, 360, 367, 390, 404, 409; 
 limited by Porcian laws, 349 ; regulated 
 by Sulla, 417. 
 
 Impetrativa, impetrita (auspicia), 100, 
 103-n; relation of to oblativa, 112. 
 
 Inaugurare sacerdotes, 106. 
 
 Inaugurations, in comitia calata, 155 f. 
 
 Incertus ager, 108. 
 
 Incest, prosecution for, 326. 
 
 Index legis, 462. 
 
 Ingenuus, 20 f., 36; son of libertinus be- 
 comes, 355. 
 
 Instauraticius dies, creation of by law, 
 308 f. 
 
 Intercession, see Veto. 
 
 Interdict, decreed by tribes, 249, 256, 257, 
 n. 5, 267, 446. 
 
 Interregnum, 183. 
 
 Interrex, appointment of, 102; auspices, 
 103; presidency of contio, 140; right 
 of public speech, 145, n. 4; nominates 
 king, 183; lacks curiate sanction, 191; 
 presides over curiae and centuries, 236, 
 412, 468, 469. 
 
 Italians, benefit by Sempronian agrarian 
 law, 364; revolt of, 397, 401; receive 
 citizenship, 401 f. ; dissatisfied, 403; 
 equalized with Romans, 409. 
 
 Iubere, in legislation, 179. 
 
 Iudices (jurors), originally from senate, 
 345. 358, 374; from knights under 
 leges Sempronia and Acilia, 374 f.; 
 qualifications of under lex Cornelia, 
 419; Aurelia, 427; Licinia and Pom- 
 peia, 448; Antonia, 458; punished for 
 bribery, 442. 
 
 Ius agendi cum populo, 465. 
 
 Ius gentium, violation of, 246. 
 
 Ius pontificum, 181. 
 
 Ius sententiae dicendae, 391. 
 
 Iussus populi, 180, n. 7. 
 
 Iustitium, 401; defined, 404, u. 6. 
 
 Iustum auspicium, imperium, 102 f. 
 
 Janiculum, garrison and flag on, 203, n. 
 2, 258, 469; secession to, 313. 
 
 Judicial process, in contio, 142, 143; in 
 comitia, 259 f. ; choice as to assembly, 
 287; ballot in, 359. 
 
 Jugurtha, 390. 
 
 Julius Caesar, C, usage as to comitia and 
 concilium, 125; creates patricians, 164, 
 456; uses centuriate and tribal assem- 
 blies, 236; threatened with prosecution, 
 324; supports Licinius Macer, 426; 
 Manilian rogation, 434; consul (59), 
 
INDEX 
 
 507 
 
 Julius Caesar {continued) 
 
 438-44; affected by Pompeian laws, 
 
 449; dictator (49-44), 451-7; adds 
 
 10 days to year, 471. 
 Julius Caesar, C, consul (64), usage as to 
 
 contio, 125 f. 
 Julius Caesar Octavianus, creates patri- 
 cians, 164, 460; triumvir, 459 f. 
 Juniors, in centuriate system, 66, 68, 81 ff. ; 
 
 number of, 84, 205; after reform, 216. 
 Junius, L., consul (249), trial of, 248. 
 Junius Silanus, M., prosecution of (103), 
 
 3*3- 
 Juno, Curis, 8, n. 5, 9; Moneta, 2, «. 6. 
 Junonia, colonization of, 383, 385. 
 Jupiter, auspices of, 100, 103; victim to, 
 
 264,274; feast of, 347; oath by, 380. 
 Jurisdiction, of king, 182; comitia centu- 
 
 riata, 239-61, 315; tributa, 264-9, 2 8°, 
 
 286-92, 317-29. 
 Jurors, see Iudices. 
 Juventus Thalna, M., tribal lex de bello 
 
 indicendo of, 231. 
 
 Kalumniator, 400. 
 
 Kaput legis, 463, n. 6. 
 
 K-jpvKes, 153, n. 3. 
 
 King, auspices of, 103 ; presidency of con- 
 tio, 140; of comitia calata, 154; curiata, 
 173 ff.; right to address people, 145, 
 173; as legislator, 177 f.; irresponsible, 
 180; powers of, 181; jurisdiction, 182; 
 election, 182-4, 189 f.; declares war, 
 175 f., 181, 230. 
 
 Klebs, on reformed comitia centuriata, 
 223, 225. 
 
 Knights, see Equites. 
 
 Kornemann, on lex Scantinia, 357, n. 13. 
 
 Laelius Felix, defines comitia and concilium, 
 119; not in accord with Livy, 119-25; 
 view of rejected, 131; error explained, 
 
 137- 
 
 Laelius Sapiens, C, prosecution of, 322; 
 agrarian rogation of, 360 f. 
 
 Laetorius Mergus, L. or M., trial of, 247. 
 
 Land, see Ager. 
 
 Lange, on obnuntiatio, 117; early legisla- 
 tion, 181, 11. 9; transitio imperii, 183, 
 n. 5, 197, n. 4; comitia centuriata, 201, 
 n. 4; reform of, 224 f. ; validity of pleb- 
 iscite, 278, n. 2; right of dedication, 
 309; lex Appuleia de maiestate, 394, n. 
 5; lexAntia, 428; principium, 466, n. 3. 
 
 Lanuvium, curiae in, 8, n. 5. 
 
 Latins, rights of, 63 ; benefit by Sempronian 
 agrarian law, 364; proposal to grant 
 citizenship to, 383; receive citizenship, 
 401 f.; limited suffrage, 466, n. 2. 
 
 Lator legis, 462, u. * . 
 
 Laurentum, 2, n. 6, 3, n. 1. 
 Lauretum, 2, n. 6. 
 Lavinium, Tities in, 4, n. 3. 
 Law, divine, 177; human, 178; sover- 
 eignty of, 308 ; see Legislation, Lex. 
 
 Legion, instituted, 68, 84 ; early republican, 
 
 75 ff- 
 Leges, composition and preservation of, 
 462-5; imperfectae, etc., 463; centu- 
 riate, consular, etc., n. 8; provisions to 
 secure validity of, 464; annulment by 
 senate, 107. 
 Legislation, regal, 177-82, 230; centuriate, 
 2 3°~9; tribal, pre-decemviral, 269-74; 
 pre-Hortensian, 292-316; from Hor- 
 tensius to Gracchi, 330-362; from 
 Gracchi to Sulla, 303-411; late repub- 
 lican, 412-61; freed from obnuntiatio, 
 117, 445; process of, 178 f., 465-70; 
 provided for by Twelve Tables, 233 f., 
 3°7, 3 68 , 464, 474; senatorial, 273; 
 transferred to tribes, 316; to centuries, 
 406-8; ballot in, 369; fields of: ad- 
 ministrative, 238, 306 f.;>agrarian, 238, 
 265, u . 4, 272, 334, 363^7, 373 f., 385-7, 
 392. 39 S. 400, 403, 435 f., 438-41, 458; 
 colonial, 311, 350, 382 f., 393 ff., 457 f-i 
 financial, 310 f., 335-7, 351 f., 392, 403, 
 422, 438; frumentarian, 372 f., 395, 
 4°i, 423, n. 8, 444; judiciary, 358, 374- 
 6, 402 f., 419, 424, 427 f., 442, 448, 455 f., 
 458 f.; religious, 238, 295, n. 6, 308 f., 
 34°, 358 f-, 39 1 *-. 435; sumptuary, 
 337 f -. 35°. 388, n. 9, 423, 428, 448, 
 455 *■_ 
 Legum dictio, no, 179, n. 7. 
 Lengle, on lex Cornelia Pompeia (88), 
 
 407, n. z. 
 Lentus, L., consul (156), trial of, 255, n. 1. 
 Lex, meaning of word, 179; data and ro- 
 
 gata, 180. 
 Lex alearia, (before 204), 337. 
 
 auspical, no. 
 
 centuriata de potestate, 185. 
 
 Coloniae Genetivae, 453, n. 4. 
 
 curiata de imperio, 31, 32, 112, 180, 
 
 n. 7; formula of, 183, 188; sanctioning, 
 184; Messala on, 185 f. ; dispensations 
 from, 186, 190, 195, 199; subject to 
 veto, 187; confirms imperium, 188; 
 functions performed without, 191; 
 lack of in 49 B.C., 192, 194 f. ; one an- 
 nually, 195 ; becomes formality, 196 f . ; 
 revived by optimates, 198; strength- 
 ened by Sulla, 199; de potestate, 190. 
 — lenonia, 338, u. 5. 
 Leges regiae, 181. 
 
 Lex sacrata, so-called Icilian, 233, 272 f. ; 
 on tribunes, 264; meaning of, 264 f. ; 
 
508 
 
 INDEX 
 
 Lex sacrata {continued) 
 
 mitigation of, 266; renewed by Valerius 
 
 and Horatius, 274; list of leges s., 265, 
 
 n. 1; on centuriate trials, 268, n. 6. 
 
 satura, 396, 399. 
 
 ■ de bello indicendo, 231. 
 
 de imperio, for triumphs, 334 f. ; 
 
 Vespasiani, 464, 11. 5 ; see Lex curiata. 
 
 on driving nail, 238. 
 
 found at Ateste, 454, n. 3. 
 
 granting citizenship to priestesses of 
 
 Ceres, 353. 
 
 creating dictatorship (501), 233. 
 
 instituting tribuni militum consulari 
 
 potestate (445). 234, 294. 
 
 creating censors (443?), 234. 
 
 appointing prefect of market (440), 
 
 =95. 3°5. n. 5. 
 on presenting crown to Jupiter (437), 
 
 295, n. 6. 
 
 on garments of candidates (432), 295 . 
 
 increasing quaestors (421), 234. 
 
 creating special murder court (414), 
 
 253, ^95- 
 as to residence on Capitoline hill 
 
 (384), 295- 
 
 creating praetorship (367), 234. 
 
 creating curule aedileship (367), 234. 
 
 for election of 6 military tribunes 
 
 (362), 234. 
 prohibiting comitia away from city 
 
 (357). 297- 
 
 preparing for war (356), 297, n. 5. 
 
 granting triumph (356), 297, n. 5. 
 
 on interest and debts (347), 298. 
 
 granting citizenship to Privernates 
 
 (3 2 9). 3°4 f- 
 
 creating promagistracy (t. 327), 305. 
 
 sending prefects to Capua (318), 306. 
 
 on dedication of temples, etc. (304), 
 
 3°9- 
 dispensing Q. Fabius from law (t. 
 
 298,) 308. 
 creating triumviri coloniis deducendis 
 
 (296), 311. 
 
 prolonging imperium (t. 295), 305. 
 
 granting Etruria to Fabius (295), 
 
 3°5 *• 
 on imperium of consul Q. Fabius 
 
 (292), 289, 306. 
 
 creating special court (270), 254. 
 
 doubling number of quaestors (267), 
 
 332. 
 forbidding reelection to censorship 
 
 (265), 332. 
 
 instituting second praetor (242), 332. 
 
 granting privilege of riding (241), 
 
 332- 
 
 instituting 2 praetors (227), 341 f. 
 
 granting triumph (t. 223), 334. 
 
 Lex on intermarriage of kin (241-219), 
 
 339 f- 
 — — on Sacred Spring (t. 217), 340. 
 dispensing consulars from law (t. 217), 
 
 343- 
 granting citizenship to Campanian 
 
 knights (215), 340. 
 for election of pontifex maximus 
 
 (before 212), 341; for election of chief 
 
 curio (before 209), 341. 
 creating 3 administrative boards (t. 
 
 212), 337- 
 
 on Campanian vectigalia (210), 337. 
 
 granting citizenship (t. 210), 353, n. 7. 
 
 for election of 24 military tribunes 
 
 (207), 342. 
 dispensing C. Servilius from law 
 
 (t. 203), 343, n. 2. 
 permitting oath by proxy (t. 200), 
 
 343. "■ »■ 
 on qualification of plebeian tribunes 
 
 and aediles (Flaminian era), 342 f. 
 
 increasing praetors to 6 (198), 346. 
 
 — — - on triumphs (after 180), 350. 
 
 forbidding reelection of consul (151), 
 
 348; dispensation from, 360; repealed 
 
 by Sulla, 415. 
 Leges, dispensing Scipio Aemilianus from. 
 
 laws (t. 148, 135), 360. 
 Lex, assigning seats to equites at theatre 
 
 (t. 146?), 357. 
 abrogating proconsular imperium 
 
 ('3°). 3°o- 
 granting Asia as province (t. 131), 
 
 381, 11. 5. 
 on qualifications of senators (t. about 
 
 129), 369 f. 
 permitting reelection of tribune (t. 
 
 before 123), 369, 371. 
 agraria, amending Sempronian law 
 
 (t. not after 118), 385. 
 
 founding Narbo Martius, 386, u. 1. 
 
 Leges, repealing Sempronian law on mili- 
 tary service (about 115), 388 f. 
 Lex, on dedication of Capitoline temple 
 
 (78), 341, n. 1. 
 
 on vectigalia (7s), 424. 
 
 appointing decemviri for regulating 
 
 Asia (t. 67), 433. 
 
 dispensing Caesar from law (t. 52), 449. 
 
 granting citizenship to Gades (49), 
 
 454- 
 Leges, recalling certain exiles (p. and t. 49), 
 
 454- 
 Lex, granting Caesar triumph over Juba 
 
 (48), 335. ". 2. 
 Leges, conferring powers on Caesar (48-45), 
 
 45 1 *• 
 Lex, for founding Colonia Genetiva (t. 44), 
 
 453. »• 4- 
 
INDEX 
 
 509 
 
 Lex (?), for building temple to Isis (43), 
 459- 
 
 Lex, honoring triumviri (43), 459. 
 
 on birthday of Caesar (42), 457, n. 7. 
 
 granting lictors to Vestals (42), 459, n. 5. 
 
 Leges, honoring Octavia, Octavianus, and 
 Livia (t. 35), 459 f. 
 
 Leges whose authors are given: 
 
 Lex Acilia de intercalatione (c. 191), 358. 
 
 Acilia repetundarum (t. 122), 375-8. 
 
 Acilia Calpurnia de ambitu (c. 67), 
 
 431; amended by Cicero, 436. 
 
 Acilia Minucia, on peace with Car- 
 thage (t. 201), 344, 11. 7. 
 
 Acilia Rubria, on worship of Jupiter 
 
 (t. 122), 384, n. 4. 
 
 Aebutia, on legis actio, 339, n. 5. 
 
 Leges Aebutia et Licinia, on qualifications 
 of candidates (t. after 194), 347 f. 
 
 Lex Aelia, colonial (t. 194), 350. 
 
 Leges Aelia et Fufia (t. about 150), 116 f., 
 358 f.; amended by lex Clodia, 116 f., 
 445; and curiate law, 198; relation to 
 tribunician comitia, 280. 
 
 Lex Aemilia, on censorship (d. 443), 237. 
 
 Aemilia de libertinorum suffragiis 
 
 (c. 115), 388; Sumptuaria, u. 9. 
 
 Aemilia frumentaria (c. 78), 423, n. 
 
 *, 444, n. 6. 
 
 Aemilia, for naming Caesar dictator 
 
 (P- 49). 450- 
 
 Antia sumptuaria (t. 70 ?), 428. 
 
 Antistia, on punishment of Satricans 
 
 (t. 319), 310; serves as precedent, 340. 
 
 Antonia de Termessibus (t. 71), 425. 
 
 Antonia, on children of proscribed 
 
 (t. 49). 453 f-; colonial (c. 44), 237, 
 453. n. 4, 457 *•; iudiciaria, 458; estab- 
 lishing appeal from quaestiones, 458 f. ; 
 abolishing dictatorship, 237, 459; a 1. 
 sacrata, 265, n. 1; leges honoring 
 Caesar, 452 n. 4; lex confirming acts 
 of Caesar, 457. 
 
 Antonia, on elections (t. 45), 454 f.; 
 
 agraria (t. 44), 458. 
 
 Antonia Tullia de ambitu (c. 63), 
 
 436 f. 
 
 Appuleia agraria (t. 100), 395; colo- 
 nial (t. 103, 100), 393 ff.; frumentaria 
 (t. 100), 395, 444, n. 6; de maiestate, 
 394, 400; de sponsu (103, 100?), 298, 
 n. 1, 394, n. 5; interdicting Metellus 
 (t. 100), 257, n. 5, 395 f. 
 
 Aquilia de damno (t. 287?), 332 f. 
 
 Aternia Tarpeia de multae dictione 
 
 (c. 454), 233. 269- 
 
 Atia, on election of sacerdotes (t. 63), 
 
 416, n. 6, 435. 
 
 Atia Ampia, honoring Pompey (t. 63), 
 
 435. "• »• 
 
 Lex Atilia, appointing special court (t. 
 210). 254, 34°- 
 
 Atilia, on appointing tutors (242- 
 
 186), 340. 
 
 Atilia Furia, for surrendering Man- 
 
 cinus (c. 136), 350. 
 
 Atilia Marcia, for electing 16 military 
 
 tribunes (t. 311), 306. 
 
 Atinia, on stolen property (214?), 
 
 339, n. 5. 
 
 Atinia, for founding colonies (t. 197), 
 
 35o. 
 
 Atinia, on right of tribunes to senator- 
 ship (t. 122-102), 391. 
 
 Atinia Marcia, on treaty with Mace- 
 don (t. 196), 349. 
 
 Aufidia, on importing wild beasts 
 
 (t- 170), 356. 
 
 Aurelia, amending Cornelian law on 
 
 tribunate (c. 75), 423 f.; de iudiciis 
 privatis, 424. 
 
 Aurelia iudiciaria (p: 70), 427, 448. 
 
 Baebia, colonial (t. 194), 350. 
 
 Baebia, on praetors (c. 181), 346. 
 
 — — Bantina, Latin, 370, n. 3, 379 f. 
 Boria (?) agraria (t. 118), 385. 
 
 Caecilia, appointing special court 
 
 (i54), 255. 
 
 Caecilia, abolishing vectigalia (p. 60), 
 
 "438; repealed by Caesar, 457, n. 6. 
 
 Caecilia, repealing lex Clodia on cen- 
 sorial stigma (c. 52), 450, n. *. 
 
 Caecilia Cornelia, recalling Cicero 
 
 (c 57). "4, "• 7. 143. 446; on cura 
 annonae, 446. 
 
 Caecilia Didia, on rogations (c. 98), 
 
 396 f. ; amended, 438, n. 2. 
 
 Caelia tabellaria (t. 107), 253, 390. 
 
 Calidia, recalling Metellus (t. 98), 
 
 396, n. i. 
 
 Calpurnia, for recovery of property, 
 
 339, n- 5- 
 
 Calpurnia repetundarum (t. 149), 358. 
 
 Calpurnia, recalling Popillius (t. 120), 
 
 388. 
 Calpurnia, granting citizenship (t. 89), 
 
 57. n. 5, 58, 402. 
 
 Calpurnia Acilia de ambitu (c. 67) 431. 
 
 Canuleia, on conubium (t. 445), 294. 
 
 Carvilia, legalizing voluntary exile 
 
 (t. 212), 249. 
 
 Cassia tabellaria (t. 137), 253, 359. 
 
 Cassia, on qualifications of senators 
 
 (t. 104), 390 f. 
 Cassia, for creating patricians (t. 45), 
 
 164, 45 6 - 
 Cassia Terentia frumentaria (c. 73), 
 
 424, n. 5, 444, n. 6. 
 
Sio 
 
 INDEX 
 
 Lex Cinda, on gifts (t. 204), 339. 
 
 Claudia, on senatorial qualifications 
 
 and contracts (t. 219), 335, 370. 
 Claudia, for expulsion of Latins (c. 
 
 177). 354- 
 
 Clodia, monetary (104?), 392. 
 
 Clodia, frumentaria (t. 58), 444 f. ; 
 
 de collegiis, 445; amended, 447 f-, 
 457, 11. 6; on secretaries of quaestors, 
 445 ; on censorial stigma, 445 ; repealed, 
 450, n. 2 ; amending Aelian and Fufian 
 laws, 116 f., 445; de provocatione, 
 445 f.; interdicting Cicero, 115, 11. 1, 
 127, 446; leges on minor subjects, 446, 
 11. 1. 
 
 Cornelia, on gambling, 337, n. 6. 
 
 Cornelia (?), outlawing Marius and 
 
 others (88), 403. 
 
 — — ■ Cornelia, repealing Cornelian-Pom- 
 peian laws (Cinna, c. 87), 409. 
 
 Cornelia ( ?), recalling exiles (c. or 
 
 t. 87), 409- 
 
 Cornelia, de tribunicia potestate (d. 
 
 82), 236 f., 413 f., 418; repealed, 423 f., 
 426 f. ; violated by Opimius, 425 f. ; de 
 maiestate (81), 415-7 ; on praetors, 416 ; 
 on quaestors, 415 f.; de sacerdotibus, 
 416 f.; de provinciis ordinandis, 417 f. ; 
 iudiciaria, 419; de adulteriis et pudi- 
 citia, alleged, 420, a. 6, 423, n. 6; de 
 proscriptione, 421; de civitate Vola- 
 terranis adimenda, 236, 422; on debts, 
 422; de sponsu (?), 422, u. 13; insti- 
 tuting ludi Victoriae, 422 f. ; surnptuaria, 
 423; leges, criminal, 419-21; on quaes- 
 tio inter sicarios, 378; amended, 448; 
 agrariae (82, 81), 421 f.; lex on return 
 of Pompey (80), 335, n. 2. 
 
 - Cornelia, on collecting certain moneys 
 
 (Lentulus, c. 72), 424. 
 
 Cornelia, on edicts of praetors (t. 67), 
 
 431 f.; on dispensations, 430 f. 
 
 Cornelia Baebia de ambitu (c. 181), 
 
 348. 
 
 Cornelia Caecilia, recalling Cicero (c. 
 
 57X446; de cura annonae, 446. 
 
 Cornelia Fulvia de ambitu (c. 159), 
 
 348. 
 
 Cornelia Gellia, on granting citizen- 
 ship (c. 72), 424, n. 6. 
 
 Cornelia Pompeia, on assemblies 
 
 (c. 88), 277, n. 4, 406-8; on rogations, 
 406, 407; colonial, 408; unciaria, 408. 
 
 Crepereia, on legis actio, 339, u. 
 
 5- 
 
 Decia, on duumviri navales (t. 311), 
 
 306. 
 — — Didia cibaria (p. or t. 143), 356. 
 Domitia, on election of sacerdotes 
 
 (t. 103), 391 f.; repealed by Sulla, 416; 
 
 renewed, 435. 
 Lex Duillia, on appeal (t. 449), 241, 292. 
 Duillia Menenia, on interest (t. 357), 
 
 297. 
 Duronia, surnptuaria (t. before 97), 
 
 388, u. 9, 423. 
 
 Fabia de plagiariis (c. 209 or 183?), 
 
 357- 
 
 Fabia de numero sectatorum (t. 66), 
 
 431, n. 6. 
 
 Falcidia testamentaria (t. 40), 459. 
 
 Fannia cibaria (c. 161), 356. 
 
 Flaminia, agraria (t. 232), 334; mone- 
 tary (c. 217), 336. 
 
 Flavia, on punishing Tusculans (t. 
 
 323). 3io- 
 — — Fufia de religione (t. 61), 438, n. 3. 
 
 Fufia, on voting in quaestiones (p. 59), 
 
 443- 
 Leges Fufia et Aelia (t. about 150), 116 f., 
 
 198, 280, 358, 445- 
 — ■ — ■ Furia de sponsu, 298, n. 1. 
 Lex Furia testamentaria (203-170?), 352, 
 
 n- 5. 463. n - 8. 
 Furia ( ?), instituting prefects for 
 
 Capua (318), 306, n. 6. 
 Furia, on conspiracy (t. 99), 396, 
 
 11. 2. 
 — — Furia Atilia, surrendering Mancinus 
 
 (c. 136), 350. 
 Furia Quinctia, arbitrating between 
 
 Ardea and Aricia (c. 446), 294 f. 
 
 Gabinia tabellaria (t. 139), 359. 
 
 Gabina, on secret meetings (t. 186 or 
 
 139?) 357- 
 
 Gabinia, on loans to provincials (t. 67), 
 
 429; on sessions of senate, 429; grant- 
 ing imperium to Pompey, 432 f. 
 
 Genucia (t. 342), 298 f.; article of 
 
 on consulship, 238; on reelections, often 
 violated, 307 f.; dispensations from, 
 307 f., 343; renewed by Sulla, 415. 
 
 Glitia testamentaria, 459, u. 7. 
 
 Graccana, 383, u. 1. 
 
 Helvia, abrogating tribunicia potestas 
 
 (t. 44), 455; on wives of Caesar, 452. 
 Hirtia, on partisans of Pompey (t. 
 
 48?), 45"i n. a. 
 
 Horatia, honoring Gaia Taracia, 146, 
 
 «. 7. 
 
 Hortensia (d. 287), 234, 312-6; 
 
 epoch-making in social history, 16; 
 effect on comitia centuriata, 137; for 
 relief of debtors, 235; on plebi scita, 
 236, 269, 330, 475; on tribunirian 
 jurisdiction, 247 f., 270; on veto, 270. 
 
INDEX 
 
 5" 
 
 Lex Hostilia, on prosecutions for theft, 377, 
 n. s . 
 
 Icilia agraria, so called (456), 238; 
 
 sacrata, 265, n. i, 272 f. 
 
 Icilia, granting amnesty to seceders 
 
 ('■ 449). 2 9 2 ; granting triumph, 293. 
 
 Iulia, granting citizenship (c. 90), 57, 
 
 11. 7, 10, 401 f. 
 
 Iulia, on dedication of Capitoline 
 
 temple (p. 62), 341, n. 1 ; agraria (c. 59), 
 J 45> "• 3. I 48, 438-41; relieving pub- 
 licans, 441; repetundarum, 441 f.; 
 dispensation from, 447; attempt to 
 amend, 448 ; confirming acts of Pompey, 
 443 ; on Ptolemy, 443 ; curiata, arrogat- 
 ing Clodius (pont. max.), 443; on 
 debts (d. 49), 452; de bonorum ces- 
 sione ( ?), 452, n. 7 ; on rents (47), 452 f . ; 
 creating 2 praetors, 454; iudiciaria 
 (46), 455; de maiestate, 455; de vi, 
 455; sumptuaria, 455 f.; de provinciis, 
 456; municipalis, 456 f.; colonial (45), 
 453; de Siculis, alleged (44), 434, n. 4. 
 
 Iulia, on rents (Octavianus, 41), 459; 
 
 on conubium of libertini (18), 354, 
 n. 8. 
 
 Iulia Papiria de multarum aestima- 
 
 tione (c. 430), 234, 287. 
 
 Iunia repetundarum (t. 126), 370, 376, 
 
 379; for expelling aliens, 370. 
 
 Iunia, on military pay (c. 109), 392. 
 
 Iunia, colonial (t. 83), 410. 
 
 Iunia Licinia, on filing statutes (c. 62), 
 
 437 f- 
 
 Licinia, on games (p. 208), 341, n. 2. 
 
 Licinia, instituting epulones (t. 196), 
 
 347- 
 Licinia sumptuaria (p. or t. before 97), 
 
 388, n. 9, 423. 
 
 Licinia de sodaliciis (c. 5s), 447 f. 
 
 Leges Licinia et Aebutia, on qualifications 
 
 of candidates (t. after 194), 347 f. 
 Lex Licinia Cassia, on appointment of 
 
 tribuni militum (c. 171), 342, n. 2. 
 Licinia Iunia, on filing statutes (c. 
 
 62), 437 f. 
 
 Licinia Mucia, on aliens (c. 95), 397. 
 
 Licinia Pompeia de tribunicia po- 
 
 testate (c. 70), 426 f.; prolonging 
 
 Caesar's command (SS)> 447- 
 Leges Licinia Sextia (t. 368, 367), 120, 
 
 295 f.; article of on consulship, 237 f.; 
 
 relieving debtors, 238; on pasturage, 
 
 291; violations of, 291, 311, 325, 363; 
 
 limiting occupation of land, 291, 310; 
 
 amended, 334, n. 1, 363, u. 4. 
 Lex Licinnia de actione communi divi- 
 
 dundo, 339, n. 5. 
 
 Lex Livia, on organization of Africa (t. 
 
 146), 349. 
 Livia, colonial (t. 122), 383 f., 397; 
 
 on Latins, 252, 383. 
 Livia agraria, f rumen taria, etc. (t. 91), 
 
 397-400. 
 Lucretia, on Campanian vectigalia 
 
 (t- 172), 3Si. «• 5- 
 
 Maenia, on ludi Romani (c. 338), 
 
 308 f. 
 Maenia, on patrum auctoritas (t. 
 
 287?), 230, 331. 
 
 Maenia, on dowries (188?), 352. 
 
 Maenia Sextia de multae dictione 
 
 (c. 452). 233- 
 Mae via, on Asiatic affairs (about 189), 
 
 349. n. 5. 
 Mamilia, on arbitri (c. 239?), 332, 
 
 n. 9. 
 Mamilia, appointing special court 
 
 (t. 109), 390. 
 Mamilia, Roscia, etc. (t. 55?), 441, 
 
 n. 1. 
 Manilia, on libertini (t. 67), 433; 
 
 granting imperium to Pompey (66), 
 
 433 f- 
 
 Manlia, on manumission of slaves 
 
 (c. 357), 202, 297. 
 
 Manlia, granting Numidia as province 
 
 (t. 107), 381, u. 5. 
 
 Marcia, on usurers (c. 352 ?), 298, 
 
 11. 1. 
 
 Marcia, appointing special court 
 
 (t. 172), 255, n. 1. 
 
 Marcia Atinia, on treaty with Mace- 
 don (t. 196), 349. 
 
 Marcia Porcia, on triumphs (t. 62), 
 
 43»- 
 
 Maria, on pontes (t. 1 19), 389. 
 
 Memmia de incestu (t. m), 377, n. 5, 
 
 390, n. 4. 
 Metilia, on master of horse (t. 217), 
 
 342; on fulling cloth, 338. 
 Minicia, on children of mixed parent- 
 age, 354, n. 2. 
 Minucia, instituting triumviri men- 
 
 sarii (t. 216), 336 f. 
 Minucia, repealing Rubrian colonial 
 
 law (t. 121), 385. 
 Mucia, appointing special court (t. 
 
 141), 255, n. 1. 
 Munatia, pardoning certain persons 
 
 (c. 42), 459. n. 5- 
 
 Norbana, appointing special court (t. 
 
 104), 390. 
 
 Octavia frumentaria (about 90), 
 
 401. 
 
512 
 
 INDEX 
 
 Lex Ogulnia, on sacerdotes (t. 300), 102, 
 
 166, 11. 7, 307, 309. 
 Oppia, on luxury of women (t. 215), 
 
 338; repealed, 356. 
 
 Orchia cibaria (t. 181), 356. 
 
 Ovinia, on senators (t. 339-312), 
 
 164,, 3°7. 335- 
 
 Papia de Vestalium lectione (t. 65?), 
 
 156, n. 7, 434; expelling aliens, 434. 
 
 Papiria, on viatores of aediles, 290, n.4. 
 
 Papiria, granting citizenship (p. 332), 
 
 3°4- 
 
 Papiria, ondedications(t. after 304), 309. 
 
 Papiria, on triumviri capitales (t. 
 
 after 242), 332. 
 
 Papiria tabellaria (t. 131), 369, 371. 
 
 Papiria, monetary (t. 89), 91, 403. 
 
 Pedia, appointing special court (c. 
 
 43). 457. "■ 7- 
 Peducaea, appointing special court 
 
 (t. 113), 390. 
 Pesolania, on injury done by dogs, 
 
 332. n - 9- 
 Petillia, appointing special court (t. 
 
 185), 255, n. 1, 319, n. 7. 
 Pinaria, on appointment of judge, 339, 
 
 n. 5. 
 
 Pinaria annalis (p. 182?), 347, n. 3. 
 
 Pinaria Furia de intercalation (c. 
 
 472). 238- 
 Plaetoria, on urban praetor (after 227), 
 
 342, n. 1. 
 Plaetoria, on cura of young men 
 
 (before 192), 340. 
 Plaetoria, appointing duumviri aedi 
 
 dedicandae (151 ?), 347, n. 2. 
 Plautia iudiciaria (t. 89), 401, n. 3, 
 
 402 f., 427; probably repealed, 409, n. 
 
 1; agraria, 403. 
 
 Plautia de vi (t. 78-77), 424. 
 
 Plautia, recalling exiles (t. 73 ?), 424. 
 
 Plautia Papiria, granting citizenship 
 
 (t- 89), 57. n. 10, 353, n. 9, 402. 
 
 Poetelia de ambitu (t. 358), 296 f. 
 
 Poetelia, on slavery for debt (c. or 
 
 d. 326or3i3), 310. 
 Pompeia, granting citizenship (c. 89), 
 
 402. 
 Pompeia iudiciaria (c. 55), 448; de 
 
 parricidio, 448; de ambitu (52), 448, 
 
 454 ; de provinciis, 449 ; de iure magis- 
 
 tratuum, 449 ; excepting certain persons 
 
 from law, 449. 
 Pompeia Licinia de tribunicia po- 
 
 testate (c. 70), 426 f.; prolonging 
 
 Caesar'scommand (55), 447, 449. 
 
 Poplicia, granting burial place, 342, n. 8. 
 
 Leges Porciae de provocatione (198-184?), 
 
 *5°-3. 25 6 . 349- 
 
 Lex Porcia de sumptu provinciali (c. 195), 
 349; on provincial governors (177 ?), 
 
 349- 
 
 Porcia, on interest (c. 118?), 392. 
 
 Porcia Marcia, on triumphs (t. 62), 
 
 438- 
 
 Publicia, on gambling, 337, n. 6. 
 
 Publicia, on gifts at saturnalia (t. 
 
 209), 338; rogatio for abrogating pro- 
 consular imperium, 342. 
 
 Publilia de sponsu, 298, n. 1. 
 
 Publilia, so-called (471), 196, 233, 
 
 270-2; does not exclude patricians, 
 262, n. 2, 271; confused with L. Pub- 
 lilia Philonis, 300. 
 
 Publilia (d. 339), 299-302; article of 
 
 on patrum auctoritas, 235; on plebi- 
 scita, 236; on consuls, 237; excludes 
 patricians, 262, n. 2, 276 f. ; relation to 
 Valerian-Horatian laws, 300. 
 
 Pupia, on sessions of senate (p. 71), 
 
 424 f . ; amended, 429. 
 
 Quinctia de aquaeductibus (c. 9), 462. 
 
 Quinctia Furia, arbitrating between 
 
 Ardea and Aricia (c. 446), 294 f. 
 
 Remmia de calumniate rib us (91 ?), 
 
 400. 
 Roscia theatralis (t. 67), 357, n. 2, 
 
 428 f. 
 — — Roscia, granting citizenship to Trans- 
 
 padani (p. 49), 454. 
 Rubria de Gallia Cisalpina, so-called, 
 
 454, n. 3. 
 Rubria, for founding Junonia (t. 123), 
 
 383- 
 Rufrena, honoring Caesar (42), 
 
 457, n- 7- 
 Rutilia, on military tribunes (169), 
 
 349. "• '■ 
 
 Saenia, for creating patricians (c. 30), 
 
 164, n. 6, 460. 
 
 Saufeia agraria (t. 91), 400. 
 
 Scribonia de usucapione servitutum 
 
 (c. 76 or t. 50), 424, n. 4, 450, n. 2. 
 Scantinia, on violation of ingenui, 
 
 357- 
 Sempronia, for dedication of temple 
 
 (c. 215), 341, n. x. 
 
 Sempronia, on loans (t. 193), 351 f. 
 
 Sempronia de imperio (t. 167), 335, 
 
 n. 2, 349, n. 1. 
 Sempronia agraria (t. 133), 363-7, 
 
 371; abrogating potestas of colleague, 
 
 366, 367 f., 391. 
 Sempronia de provocatione (t. 123), 
 
 355 *-. 37 1 ; frumentaria, 372 f., 444; 
 
 agraria, 372, 373 f.; on taxation of 
 
INDEX 
 
 513 
 
 Xex Sempronia (continued) 
 
 Asia, 380 f. ; on consular provinces, 
 381; repealed, 449; on military ser- 
 vice, 38a, 389; colonial, 382 f.; viaria 
 ( f ). 373J iudiciaria (122), 374-6; on 
 murder and poisoning, 378. 
 
 Servilia repetundarum (t. 111?), 393. 
 
 Servilia, on qualifications of iudices 
 
 (c. 106), 388. 
 
 Sestia or Sextia, instituting Decem- 
 
 virate (c. 452), 233, 273. 
 
 Silia, on legis actio per condictionem, 
 
 339. n. 5. 
 
 Silia, on weights and measures (t. 
 
 Flaminian era), 337 f. 
 
 Sulpicia, on various subjects (t. 88), 
 
 404 f. ; article of on new citizens, 58; 
 on transferring command to Marius, 
 381, n. 5. 
 
 Terentia, on sons of libertini (t. 189), 
 
 355- 
 
 Terentilia, 120. 
 
 Thoria agraria (t. in), 386 f. 
 
 Titia, on gambling, 337, n. 6. 
 
 Titia, on questorian provinces (267 ?), 
 
 332. n. 3. 
 Titia agraria (t. 99), 396; criminal 
 
 (99?). 39<5. n. 5. 
 Titia, abrogating potestas of col- 
 league (t. 43), 455, n. 3. 
 Trebonia, on tribunician elections 
 
 (t. 448 or 401), 285 f ., 294. 
 Trebonia, granting provinces (t. 5s), 
 
 447- 
 
 Tullia, on free legations (c. 63), 437. 
 
 Tullia Antonia de ambitu (c. 63), 
 
 436 f. ; article of renewed, 449. 
 
 Valeria de provocatione (c. 509), 
 
 232 f., 240, 473 f.; a 1. sacrata, 265, n., 
 1; granting building lot to proposer, 
 238, n. 3. 
 
 Valeria (d. 342), 234 f . ; abolishing 
 
 debts, 238, 298; a 1. sacrata, 265, u. 1. 
 
 Valeria de provocatione (300), 233, 
 
 234, 242, 250; relation of to Porcian 
 laws, 252 f. 
 
 Valeria, repealing Oppian law (t. 19s), 
 
 35°- 
 Valeria, granting suffragium (t. 188), 
 
 35*- 
 
 Valeria, granting citizenship to priest- 
 esses of Ceres (p. 98), 353, n. 5. 
 
 Valeria, on debts (c. 86), 409 f . ; 
 
 repealed, 422. 
 
 Valeria, appointing Sulla dictator 
 
 (interrex, 82), 236, 412, 421. 
 
 Valeria Horatia (c. 449), *34, 274-80, 
 
 474; de provocatione, 233, 241; a 1. 
 
 2L 
 
 sacrata, 265, n. 1; violated by rogatio 
 Servilia, 259; on oath of plebs, 264, a. 
 7; bearing on tribunician jurisdiction, 
 270, 280; on sanctity of plebeian offi- 
 cials, 274; on plebiscita, 274-8. 
 
 Valeria Marcia, instituting bank (c. 
 
 352), 297 f. 
 
 Varia de maiestate (t. 90), 400 f. 
 
 Vatinia iudiciaria (t. 59), 442 ; colo- 
 nial, 440, 11. 8; granting provinces to 
 Caesar, 443 f. ; leges on foreign affairs, 
 443. n- 6. 
 
 Leges Vibiae, confirming acts of Caesar 
 
 (<:■ 43). 237. 457. n- 7. 45 8 . "■ 2 ! a° o1 - 
 ishing dictatorship, 459, n. 2. 
 
 Lex Villia annalis (t. 180), 347; renewed 
 by Sulla, 415. 
 
 Visellia de curatoribus Viarum (be- 
 fore 71), 424, n. 6. 
 
 Voconia, on inheritance (t. 169), 72, 
 
 "• *. 85, 90, 352. 
 
 Levy, obstruction of, 272, 273, 279. 
 
 Liber and Libera, forfeiture of estates to, 
 
 274. 
 Libertini, class of clients, 22; enrolment in 
 
 tribes, 58, 354; deterioration of status, 
 
 354 f.; lex Terentia on, 355; 1. Sulpicia 
 
 on, 404. 
 Licinius Crassus, M., consul (70), 426 f. ; 
 
 triumvir, 441; second consulship (50), 
 
 447 f- 
 
 Licinius Macer, tribune (73), 426. 
 
 Licinius Stolo, C, trial of (357), 291. 
 
 Lictors, curial, 10, 154, 468; curiate sanc- 
 tion, 189, n. 2; cast votes of curiae, 196, 
 198, 199; magisterial, 150; granted 
 to Vestals, 459, n. 5. 
 
 Liticines, in comitia centuriata, 206, 226. 
 
 Lituus, 468. 
 
 Livius Drusus, M., tribune (122), 252, 
 
 383- 
 Livius Drusus, M., tribune (91), 397-400. 
 Livius Salinator, M., trial of (218), 317 f. 
 Livy, on early Roman history, 25, n. 3, 26; 
 
 centuriate system, 66 f. ; comitia and 
 
 concilium, 119-25; patricians in tribal 
 
 assembly, 275; agrees with Fabius 
 
 Pictor, 293, n. 3. 
 Locupletes, 61. 
 Lucerenses, 74. 
 
 Luceres, 3, 74; in Ardea, 4, n. 3. 
 Lucerus, in Ardea, 4, n. 3. 
 Lucilius (Licinius ?), hurled from Tarpeian 
 
 Rock, 257, n. 5. 
 Lucretius, C, praetor (171), prosecution of, 
 
 321. 
 Ludi, Romani, 308; Victoriae, 422 f. 
 Lusitanians, rogation on, 349 f. 
 Lustrum, 204. 
 
5H 
 
 INDEX 
 
 Lutatius Catulus, Q., prosecution of (87), 
 
 »S7. «• 5- 
 Lycurgus, 177. 
 
 Magic, prosecution for, 325. 
 
 Magistracy, bestowed by curiate law, 185 f. 
 
 Magistrates, patrician, 103, 263; higher 
 and lower, 103, 141 f.; occupy templa, 
 109; take auspices, no; have obnun- 
 tiatio, in f. ; spectio, 113; preside 
 over contio, 140 f. ; comitia, 465, 468, 
 469; bound by laws, 180 f.; iusti, op- 
 timoiure, 186-8; and lex curiata, 189 ff.; 
 higher, 229; act as accusers, 259; 
 controlled by dictator, 273, 284; right 
 to divide business, 306; to enrolment 
 in senate, 307; exempt from prosecu- 
 tion, 318; under law of extortion, 377; 
 regulated by Sulla, 413-8; by Pompey, 
 449; swear to uphold laws, 464; mu- 
 nicipal, 4S7. 
 
 Maiestas, 257, n. 5 ; Cornelian court of, 
 258; Claudia tried for, 326, 394; under 
 lex Varia, 400 f. ; Cornelia, 419; Iulia, 
 
 455- 
 Majority rule, primitively unknown, 170, 
 
 n. 7. 
 Mancinus, law for surrendering, 350. 
 Mancipatio, 48. 
 
 Manilia, trial of for violence (183), 336. 
 Manilius, C, tribune (67-66), 433 f. 
 Manlius, A., consul (178), threatened with 
 
 prosecution, 231. 
 Manlius, past consul, trial of, 268. 
 Manlius, Cn., consul (357), holds comitia 
 
 at Sutrium, 297. 
 Manlius, L., past dictator, trial of (362), 
 
 288. 
 Manlius Capitolinus, M., trial of, 123 f., 
 
 243- 
 Manlius Volso, Cn., 231. 
 Mantua, three tribes in, 4, n. 3. 
 Marcius, L., propraetor in Spain, 192 . 
 Marcius Coriolanus, C, trial of (491), 267. 
 Mariana colonia, 394, n. 1, 396. 
 Marius, C, change in recruiting, 86, 394; 
 
 tribune (119), 389; combines with 
 
 Saturninus, 393-5; given command 
 
 against Mithridates, 404. 
 Market days, see Nundinae. 
 Master of horse, presides over contio, 140. 
 Matienus, C, trial of for desertion, 252. 
 Matrons, fined for stuprum, 291 f., 326; 
 
 trial of for poisoning, 253 f., 309. 
 Meadow, Flaminian, 465. 
 Mechanics, see Fabri. 
 Messala, on curiate law, 185 f. 
 Metellus, see Caecilius Metellus. 
 Meyer, E., on four city tribes, 54-6; origin 
 
 of tribunate, 55, n. t, 262, n. 1, 272, n. 
 
 2; Licinian-Sextian laws, 296, n. 4; 
 chronology of Sempronian laws, 371, 
 11. 2; Cornelian-Pompeian law on as- 
 semblies, 406. 
 
 Milo, tribune (57), 115 f. 
 
 Minervia, founding of, 384, u. x. 
 
 Minos, 177. 
 
 Minucius, L., trial of, 246. 
 
 Minucius Augurinus, C, tribune (184), 320. 
 
 Mithridates, 403, 404, 433, 434. 
 
 Mommsen, Th., on patrician state, 33-6; 
 gens, 35 ; gentile ownership of land, 48; 
 urban tribes, 51 f., 54 f.; classis, 72, 
 n. 1; concilium populi, 1 2 1-4; grant of 
 patriciate, 166, n. 3; of citizenship, 
 181, n. s; early legislation, n. 9; tran- 
 sitio imperii, 197, n. 4; exercise of 
 comitia centuriata, 203, n. 4 ; proletarian 
 century, 207, n. 12; reformed comitia 
 centuriata, 221-4; validity of plebiscite, 
 277, 11. 2; Licinian and Aebutian laws, 
 347, 11. 8; qualification of iudices, 375, 
 n. 4; Thorian law, 385, 11. 5; lex Ap- 
 puleia de maiestate, 394, n. 5; lex 
 Plautia iudiciaria, 403; Sulpicius, 405, 
 n. 2 ; principium, 466, n. 3. 
 
 Morals, laws on, 337 f. 
 
 Mucius Scaevola, P., tribune (141), 255, 
 11. 1. 
 
 Mucius Scaevola, Q., formula of oath in 
 arrogations, 160. 
 
 MUM, on lex Appuleia de maiestate, 394, 
 n. 5. 
 
 Municipia, lex Iulia on, 456 f. 
 
 Murder, trial of, 244, 246, n. 6; under 
 questorian jurisdiction, 248; court for, 
 253. 2 55. n - 1. 2 57, n. S, 295, 309, 358; 
 under lex Sempronia, 378; Cornelia, 
 419 f.; of tribune alleged, 268. 
 
 Musicians, in centuriate system, 66, 68, 
 81, 206, 208, 226. 
 
 Naevius, M., tribune (183), 320. 
 
 Narbo Martius, founding of, 386, n. ±. 
 
 Nefas, Nefasti dies, 159, 470. 
 
 Neptunia, founding of, 382. 
 
 Niebuhr, on early Roman history, 25 5.; 
 patrician state, 27-32; gens and curia, 
 II_I 3> 3 1 f-; social composition of 
 gens, 27; Attic tribal system, 28, 31 f.; 
 Servian tribes, 51, 61, n. 3; reformed 
 comitia centuriata, 217-9; unsound- 
 ness of his method, 45. 
 
 Niese, on origin of tribunate, 262, n. 1; 
 Licinian-Sextian law, 296, n. 4. 
 
 Nigidius Figulus, P., on auspices, 101, n. 3. 
 
 Nobility, origin of , 39 ; develops into class, 
 40; among various peoples, 40-2; at 
 Rome, 43; supported by tribunate, 
 312; plebeian, allies of patrician, 330. 
 
INDEX 
 
 515 
 
 Nobles, concilium of Etruscan, 124; of 
 Gallic, 125; comitia of, 129; repre- 
 sented in council, 275; right to vote, 
 276; see Patricians. 
 
 Nola, loses citizenship, 422. 
 
 N6^ot iir ivSpl , 153. 
 
 Norbanus, C, trial of (95), 394, u. 4. 
 
 Novae Curiae, 9. 
 
 Numa, 177. 
 
 Numantines, 330. 
 
 Nundinae, comitia not held on, 139; made 
 fasti by Hortensian law, 31s, 471. 
 
 Nuntiatio, in. 
 
 Oath, in contio, 142; in arrogations, 160; 
 making tribunes sacred, 264, 274; lack 
 of in comitial trials, 287; to support 
 law, 380, 395, 440 f. 
 
 Oblativa (auspicia), 100; publica, 111-8; 
 under Aelian and Fufian laws, 116 f., 
 358 f.; under lex Clodia, 116 f., 445. 
 
 Obnuntiatio, by whom served, in, 114 f., 
 439; when served, n 5-; under Aelian 
 and Fufian laws, 116 f., 358 f. ; under 
 lex Clodia, 116 f., 445; prevents elec- 
 tion, 193; to what point allowable, 467. 
 
 Octavianus, see Julius Caesar Octavianus. 
 
 Octavius, tribune (133), 322; deposed, 
 366, 367 f., 371. 
 
 Opimius, L., trial of (120), 256; given 
 absolute power, 387 f. 
 
 Opimius, Q., trial of, 414, "• 2; tribune 
 (75). 425 f. 
 
 Oppidum, 6 f. 
 
 Oppius, Sp., decemvir, trial of, 246. 
 
 Optima lege, optimo iure, 186-8; cives, 
 355; private land, 386. 
 
 Optimates, prefer centuries, 237; undo 
 Gracchan reforms, 385, 387; policy 
 of as to special courts, 388; depend on 
 religion, 391; moderate rule of, 396 f. 
 
 Ordines, in comitia centuriata, 222. 
 
 Ovation, comitial act on, 334 f. 
 
 Ovile, 469. 
 
 Paederastia, prosecution for (227), 325. 
 
 Pagus, relation of to Servian tribes, 51, 53 f. 
 
 Pais, on urban tribes, 52, 55, u. 1; origin 
 of tribunate, 262, n. 1; connection of 
 Ceres with plebs, 264, n. 7; Genucian 
 and Publilian laws, 299, a. 2; election 
 of pontiff, 341, n. 3. 
 
 Palatine (tribus), 50, 51, 52, n. 1, 220. 
 
 Palatine hill, 7, n. 3, 9. 
 
 Pantagathus, 220. 
 
 Papirius, L., trial of (326), 247. 
 
 Papirius Carbo, C, trial of (119), 257. 
 
 Parricidium, trial of, 244; under lex 
 Pompeia, 448; Iulia, 455, n. 7. 
 
 Pater, meaning of, 19. 
 
 Pater parratus, 176. 
 
 Patrem ciere, 20. 
 
 Patres, meaning senators, 17 ff.; patri- 
 cians, 19; in Mommsen's theory, 34; 
 maiorum et minorum gentium, 35 f. 
 
 Patrician magistrate, defined, 103. 
 
 Patricians, Patricii, origin of, 16 ff ., 37, n. 1 ; 
 Mommsen on, 34; not conquerors, 43; 
 right to auspices, 101-3; and patrum 
 auctoritas, 229, 235; in curiate assembly, 
 262, 11. 2, 271; in tribal assembly, 271, 
 275—7; m plebeian tribunate, 285 f.; 
 affected by Publilian law (339), 300 f.; 
 creation of, 21, 164-6, 456, 460. 
 
 Patriciate, relation of to senate, 18; granted 
 to plebeians, 21, 164-6, 456,460; closing 
 of, 165; acquired by adoption, 166. 
 
 Patricio-plebeian tribal assembly, 123, 128, 
 134; unnecessary term, 138. 
 
 Patricius, meaning of, 20 f. 
 
 Patrum auctoritas, 31, 174; and comitia 
 curia ta, 229, 235, 277; for curiate laws, 
 277; Publilian law on, 300 ; Hortensian 
 law on, 313; Maenian law on, 331. 
 
 Pay, military, introduced, 61, n. 6, 94; 
 by senate, 284, 295; how reckoned, 
 90, u. 4; since war with Hannibal, 
 382; laws on, 382, 388 f., 392. 
 
 Peculatus, trials for, 317 f., 319, 419. 
 
 Pecunia, 48. 
 
 Pellegrino, on asylum, 36. 
 
 Perduellio, 243 f., 248, 249, 253, 256, 257; 
 Sulla transfers to quaestio maiestatis, 
 258; aedilician case of, 326; ballot in, 
 390; trials for: Horatius, 121; Clau- 
 dius, 248, 317; Manlius, 288 f.; Postu- 
 mius, 248 f., 318; Rabirius, 258 f. 
 
 Peregrinus ager, 108. 
 
 Petilii, Q., tribunes (185), 319. 
 
 Petronia (amnis), 108. 
 
 Phalanx, Greek, adopted by Rome, 61 f., 
 68, 71 f.; origin of, 69 ff.; organization 
 and equipment, 72 f.; split in legions, 
 75; post-Servian changes, 76-80; 
 changed to manipular legion, 84. 
 
 Phratry, 8, 11. 6, 28, 69. 
 
 Phyle, 4, 6, 28. 
 
 Phylobasileis, 8, 11. 1. 
 
 Picene district, 333; Flaminian law on, 
 
 334- 
 
 Plebeian assembly, termed comitia, 120, 
 126-30; question as to auspication, 
 122 f. 
 
 Plebeian magistrates, occupy templa, 109; 
 do not auspicate assemblies, no; pre- 
 side over contio, 140 f.; comitia, 465, 
 469; see Aediles, Tribuni plebis. 
 
 Plebi scitum, issued by plebeian assembly, 
 120, 11. 1; originally binding on plebs 
 only, 263, 273; given conditioned valid- 
 
5 i6 
 
 INDEX 
 
 Plebi scitum (continued) 
 
 ity, 274-9; Publilian law on, 300; made 
 unconditionally valid, 313, 463; for in- 
 dividual plebi scita, see Lex. 
 
 Plebs, distinguished from populus, i, 11. 3; 
 origin of, 16, 21; relation to clients, 22; 
 belong to populus, 23 ff . ; to tribes and 
 curiae, 24; to gentes, 28-31; vote in 
 comitia curiata, 25, 32; Mommsen on, 
 34-6; not the conquered, 43; in army, 
 75, n. 1; right to auspices, 101-3; as- 
 sembly of termed comitia, 120; first 
 secession of, 262 ; in contio, 263 ; com- 
 munity of, 264 f.; misunderstanding 
 with government, 268; meaning of 
 word in Valerian-Horatian law, 275-7; 
 Publilian law on, 3or f.; condition of 
 in third Samnite war, 311; leaders of 
 ally with patricians, 330; in comitia 
 under plebeian presidency, 465. 
 
 Pleminius, Q., trial of, 250. 
 
 H\ij8os, 407 f. 
 
 Plutocracy, era of, 346-62, 476; discontent 
 with, 371. 
 
 Poetelius Libo, C, consul (326), dictator 
 
 (3'3). 3!°- 
 
 Poisoning, special court for trial of, 253, 
 254, n. 3. 
 
 Polybius, on Flaminian law, 334; on Roman 
 constitution, 343-6, 361 f. 
 
 Pomerium, limits urban tribes, 52, 54; 
 relation of to augury, 108; to comitia 
 curiata, 194, 468; to comitia cen- 
 turiata, 203, 469; to comitia tribute, 
 
 4°5- 
 
 Pompeius Magnus, Cn., use of oblativa, 
 in; and curiate law, 194 f.; consul 
 (70), 426 f.; given special commands, 
 432-4; cura annonae, 446; second 
 consulship (55), 447-5°; third (52), 
 448. 
 
 Pompeius Strabo, Cn., trial of, 401, n. 3; 
 consul (89), 402. 
 
 Pomptinus, praetor (63), 192 f. 
 
 Pontes, 469; Marian law on, 389. 
 
 Pontifex maximus, auspicium of, 104; 
 elected by comitia, 120, 341, 391; pre- 
 sides over contio, 141; comitia calata, 
 153 ff.; comitia tribute, 153, n. 4, 263; 
 over first tribunician elections, 263; 
 and in 449 B.C., 285; jurisdiction of, 
 327 f., 390; chooses Vestals, 434. 
 
 Pontifex minor, in comitia calata, 155. 
 
 Pontifices, 102, 106, «. 10;. have charge 
 of arrogations, 160; of certain adoptions, 
 166; religious legislation of, 238 f.; 
 opinion on Sacred Spring, 340; control 
 calendar, 358; election of, 391; in- 
 creased to fifteen, 416. 
 
 Popillius, M., trial of (172), 253, 11. 1. 
 
 Popillius Laenas, C, trial of (107), 257, n. 5. 
 
 Popillius Laenas, P., presides over special 
 court (132), 255; interdicted, 256; 
 recalled, 388. 
 
 Popillius Laenas, P., tribune (86), 237, n. 5. 
 
 Population of Rome, in early republic, 83. 
 
 Populus, derivation of word, 1 ; definition, 
 1 f.; political divisions, 1-15; social 
 composition of, 16-47; theory of a 
 patrician, 27 ff.; concilium of, 120-5; 
 sovereignty, 308, 316, 346, 368, 399; 
 yields judicial function to courts, 420 f.; 
 electoral function to Caesar, 454 f. 
 
 Porcius Cato, M., the Elder, on Servian 
 tribes, 51, 53, 54; favors lex Voconia, 
 85, 90; lex Villia, 347; lex forbidding 
 reflections, 348; author of law of ap- 
 peal, 250 f. ; prosecutions of, 319, 321. 
 
 Porcius Laeca, P., praetor (195), 251. 
 
 Porcius Licinus, consul (184), 251. 
 
 Posteriores (equites), 73, n. 7, 74, 76. 
 
 Postliminium, 353. 
 
 Postumius, L., irial of, 289. 
 
 Postumius, M."rial of (423), 288. 
 
 Postumius Pyrgensis, M., trial of, 248 f., 
 318. 
 
 Potestas, tribunicia, destroyed by Sulla, 
 199 ; patria, political influence of, 342 f . ; 
 lex on, 185, 190. 
 
 Praeco (crier), summons contio, 144; 
 invites to speak, 147, n. 5; reads bill, 
 430 ; declares result of vote, 468. 
 
 Praescriptio legis, 462. 
 
 Praetors, auspices of, 103 ; obnuntiate, 115; 
 adoptions before, 160; election of, 189, 
 229; instituted, 234; grant auspices 
 to tribune, 245 f., 280, 315; increased, 
 332, 34i, 416, 454; urban, presides 
 over election of boards, 337; lex Plae- 
 toria on, 342, n. 1; fills album iudicum, 
 37°. 377! minimal age of, 415; edicts 
 of, 431 f. 
 
 Prefecture of market, created (440), 295, 
 3°5. n- 5- 
 
 Prerogative (praerogativa), 211, 463; eques- 
 trian abolished, 212, 215; after reform, 
 212, 224, 227; in elections, 389. 
 
 Presidency, of contio, 140 f.; of comitia, 
 465, 468, 469. 
 
 Principium, 463; in comitia curiata, ri2; 
 elections, 389; comitia tribute, 466 f. 
 
 Priores (equites), 73, n. 7, 74, 76. 
 
 Privernates, receive citizenship, 305. 
 
 Privilegia, enacted by centuries, 127 f., 241; 
 violation of law on, 289 f.; dispensa- 
 tions are, 307 f. 
 
 Procedure, contional, 143 ff.;' comitial, 
 465-70; in trials, 259 f. 
 
 Proceres, Proci, in centuriate system, 67, 
 n. 3, 75, n. 1. 
 
INDEX 
 
 517 
 
 Proletarians, 68, 89, 207 f.; after reform, 
 226. 
 
 Promagistracy, instituted, 305. 
 
 Promagistrates, lack right to summon 
 people, 141; and curiate law, 192 ft.; 
 under lex repetundarum, 377; under 
 lex Cornelia, 417; lex Pompeia, 449. 
 
 Propraetor, elected by army, 192, 202. 
 
 Provinces, assigned exceptionally by law, 
 305, 381, n. 5, 417, 43 2 ~4, 443 '-. 447; 
 Sempronian law on consular, 381 f. ; 
 Cornelian, 417; Julian, 456; pro- 
 tected by Gabinian, 429 f . ; from extor- 
 tion, see Repetundae. 
 
 Publicans, exactions of, 380 f.; law for 
 relief of, 441. 
 
 Publicius Bibulus, C, tribune (209), 338. 
 
 Publilius Philo, consul and dictator (339), 
 23S.299-302; censor (322), 305. 
 
 Punctum, in counting votes, 467, n. 5. 
 • Punic war, first, effect of on politics, 
 
 333- 
 Pupinian tribe, 59, n. 3. 
 
 Quaestio, preliminary inquiry, 259. 
 
 Quaestio extraordinaria (314), 242, 11. 5; 
 for trial of Pleminius (204), 250; af- 
 fects centuriate jurisdiction, 253; ap- 
 pointed by senate and people, 253, 295, 
 '309; by senate alone, 253 f., 255, 309; 
 by people, 255, n. 1 ; for trial of con- 
 spiracy, 310; Satricans, 310; usurpers 
 of citizenship, 354, 397; Vestals, 390; 
 bribery, 390 ; vis, 448 f . ; murderers of 
 Caesar, 457, n. 7 ; composed of senators, 
 374 f. ; under lex Sempronia, 371, 374-6 ; 
 optimate policy as to, 388. 
 
 Quaestio perpetua, affects centuriate juris- 
 diction, 253; repetundarum, 257, 358; 
 number increased by Sulla, 257 f., 324; 
 inter sicarios, 258, 358; limits appeal, 
 328; composed of senators, 374, 419; 
 Sempronian laws on, 374-6; of knights, 
 374 f. ; of senators and knights, 402, 
 455; of three classes, 427, 458; under 
 Latin lex Bantina, 379; Appuleia de 
 maiestate, 394; Livia, 399; Varia, 401; 
 Cornelia, 419-21 ; Licinia and Pompeia, 
 448; Iulia, 455; Antonia, 458; appeal 
 granted from, 458 f. 
 
 Quaestors, auspicate comitia centuriata, 
 104; obnuntiate, 141; preside over 
 contio, 140, 141 ; curiate sanction, 189, 
 195; increased, 234, 332, 415 f-; par- 
 ricidii, 244 f.; relation of to tribunes, 
 248; elected by tribes, 294; minimal 
 age of, 415- 
 
 Quando rex comitiavit fas, 159, n. 8, 470. 
 
 Quinctius, K., trial of (461), 267, 268, n. 6. 
 
 Quinctius, L., tribune (74), 4»6. 
 
 Quinctius, T., past consular tribune, trial 
 
 of, 288. 
 Quinctius Tragus, T., trial of, 245. 
 Quindecemviri sacris faciundis, 416; see 
 
 Decemviri. 
 Quinqueviri, for repairing defences, 337; 
 
 agris adsignandis under lex Saufeia, 
 
 400; lex Iulia, 439. 
 Quirina (tribus), 214. 
 Quirinal hill, *, 3, a. 1. 
 
 Rabirius, C, trial of, 243 f., 2s8f. 
 
 Ramnenii, in Ostia, 4, n. 3. 
 
 Ramnenses, 74. 
 
 Ramnes, 2, n. 5, 74; in Ardea, 4, a. 3. 
 
 Ramnii, in Capua, 4, «. 3. 
 
 Rapta (curia), 8, n. 6, 11, n. 7. 
 
 Ratings, ascribed to Servius, 66; in sex- 
 tantarian as, 67, n. 4; origin of, 79; 
 array in battle, 79 f. ; of five classes, 
 84-91 ; Belot on, 91-3. 
 
 Regiones, connection of with tribes, 51, u. 
 1. 4, 6, S3 f. 
 
 Religion, influences formation of nobility, 
 39 f.; right to legislate on, 308; laws 
 on, see Legislation. 
 
 Remus, an augur, 105, u. 3. 
 
 Renuntiatio, 467. 
 
 Repetundae, court of, 257, 358, 370; under 
 lex lunia, 370, 376, 379; lex Acilia, 
 375-8; Servilia, 393; Cornelia, 419; 
 Iulia, 441 f.; defined, 377. 
 
 Revolution, period of, 363-460, 476 f. 
 
 Rex sacrorum, presides over contio, 141; 
 comitia calata, 154; forbidden to ad- 
 dress populus, 147; ceremonies of in 
 comitium, 156, 159 f.; successor to 
 king, 182; a shadow, 198. 
 
 Rhegium insurgent garrison of, 254. 
 
 Rogatio, meaning of, 178; composition 
 and form of, 462 ff . 
 
 de imperio (t.) for triumph, 335. 
 
 colonizing Bolae (t. 415), 311, n. 1. 
 
 dispensing from law (298), 299, n. 3. 
 
 for abolition of debts (t. 287), 312. 
 
 Rogationes of Cicero's consulship (63), 
 
 437. n. 7- 
 Rogatio, of 8 tribunes, recalling Cicero (58), 
 
 446, n. 2. 
 establishing consular tribunes (t. 53), 
 
 450, 11. a. 
 Rogationes Aemiliae, repealing Cornelian 
 
 laws (c. 78), 423. 
 Rogatio Aufeia, on taxation of Asia (p. 123), 
 
 381, n. 4. 
 
 Aufidia de ambitu (t. 61), 437, n. 1. 
 
 Caecilia, lightening certain penalties 
 
 (t. 63), 437. n. 7- 
 Caecilia, dispensing Pompey from 
 
 law (t. 62), 437, u. i. 
 
5 i8 
 
 INDEX 
 
 Rogationes Caeliae, on debts and rents 
 
 (p. 48), 452. °- 9- 
 Rogatio Caninia, granting imperium to 
 
 Pompey (t. 56), 446, n. 3. 
 
 Cassia agraria (c. 486), 238, 265, n. 4. 
 
 Clodia de suffrages libertinorura (p. 
 
 52), 450, n. *. 
 Cornelia, renewing Sulpician lex 
 
 (c. 87), 409- 
 
 Cornelia de ambitu (t. 67), 431. 
 
 Rogationes Corneliae (t. 47), 452, n. 9. 
 Rogatio Fabricia, recalling Cicero (t. 57), 
 
 446, n. 2. 
 Flavia, for punishing Tusculans, 
 
 (323), 310. 
 
 Flavia agraria (t. 60), 438. 
 
 Fulvia, granting citizenship (c. 125), 
 
 370- 
 Herennia, transferring Clodius to 
 
 plebs (t. 6o), 162, 438. 
 
 Iunia, on usury (195?), 352, n. 2. 
 
 Laelia agraria (p. 145), 360 f., 363. 
 
 Licinia, on election of sacerdotes, 391. 
 
 Lucilia Coelia, for naming Pompey 
 
 dictator (t. 53), 450, 11. 2. 
 Maelia, confiscating property of Ahala 
 
 (436), 289. 
 Marcia (123-122), referring to mili- 
 tary tribunes, 382, n. 5. 
 
 Marcia agraria (t. ro4), 392. 
 
 Messia, recalling Cicero (t. 58), 446, 
 
 n. 2. 
 Ninnia, recalling Cicero (t. 58), 446, 
 
 u. 2. 
 Papiria, permitting reelection of trib- 
 unes (t. 131), 369. 
 
 Pinaria annalis (p. 182?), 347, n. 3. 
 
 Pompeia repetundarum (c. 55), 442, 
 
 u. 2; sumptuaria, 448. 
 Porcia, abrogating imperium (t. 56), 
 
 446, "■ 3- 
 Porcia Pompeia, recalling Metellus 
 
 (t- 99), 39 6 < ». 1. 
 Pupia Valeria, appointing special 
 
 court (c. 61), 438, n. 3. 
 Rutilia, on censorial contracts (t. 169), 
 
 35i, "• 5- 
 Scribonia, on Lusitanians (t. 149), 
 
 349- 
 
 Rogationes Scriboniae, on various subjects 
 (t-5°). 45o, "• *■ 
 
 Rogatio Sempronia de provocatione (t. r33), 
 2 55. 368; iudiciaria, 368, 374; on mili- 
 tary service, 368, 382. 
 
 Sempronia de abactis (t. 124), 371, 
 
 391; granting citizenship to Latins 
 and Italians (123-122), 382, 383 f.; 
 on voting in comitia centuriata (122), 
 384, n. 2. 
 
 Servilia agraria, 129, 183, n. 5, 186, 
 
 435 f'i violates right of appeal, 259; 
 bearing of on election of sacerdotes, 
 416, a.. 6. 
 
 Rogations, discussed in senate, 145; judi- 
 cial, 239; no record of unpassed, 270; 
 apocryphal agrarian, 270, 272, 295; 
 restriction as to bringing, 359; lex 
 Caecilia Didia on, 396 f. 
 
 Rogator legis, 462, n. 2, 463. 
 
 Rogatores, 211, 467, 469. 
 
 Roma, Etruscan origin of, 7, u. ■-. 
 
 Roman us ager, 108. 
 
 Romilia (tribus), 214. 
 
 Romulus, connection of with tribes, 2, n. 5, 
 3; with army, 69, n. 4; with equites, 
 74; an augur, 105, n. 3; as legislator, 
 
 177- 
 Roscius, Otho, L., tribune (67), 428 f., 432. 
 Rostra, a templum, 109. 
 Rubino, on testamentary comitia, 157 f.; 
 
 lex curiata, 185; vote by 30 lictors, 196. 
 Rubrica legis, 463, n. 6. 
 Rupilius, consul (132), condemned, 256. 
 
 Sabines, alleged connection of with Titles, 
 
 2f. 
 
 Sacer homo, 265. 
 
 Sacerdotes, 7; inauguration of, 106; co- 
 mitia, for election of, 120, 129, 341, 391, 
 458; their part in instituting comitia, 
 153; in trials, 182; in election of king, 
 183; see Augurs, Epulones, etc. 
 
 Sacred Mount, lex sacrata passed on, 274. 
 
 Sacred Spring, lex on, 340. 
 
 Sacro sanctitas, 264; origin of, 265; reli- 
 gious and legal basis, 265 f. ; protects 
 plebeian assembly, 266; relation of to 
 tribunician jurisdiction, 266 f., 273 f. ; 
 confirmed by lex Valeria Horatia, 274. 
 
 Saepta, 466. 
 
 Saeptum, 467. 
 
 Salii, 69, n. 1, 70, u. 5. 
 
 Sallust, on comitia and concilium, 126. 
 
 Sanctio, 463; of Latin lex Bantina, 379. 
 
 Sappers, see Fabri. 
 
 Satricans, special court for punishing, 310. 
 
 Saturnalia, gifts at, 338 f. 
 
 Saturninus, see Appuleius Saturninus. 
 
 Savigny, on lex Iulia municipalis, 457, n. 5. 
 
 Scaevbla, on gens, 28, n. 7. 
 
 Scantinus Capitolinus, C, prosecution of, 
 
 3*5- 
 Schmidt, Joh., on origin of tribunate, 262, 
 
 n. 1. 
 Schwegler, on patrician state, 32 f. 
 Scipios, trial of (185), 319 f.; see Cornelius. 
 Scolacium, founding of, 382. 
 Scutum, in centuriate system, 66, 78, n. 6. 
 Secession, first, 262; second, 277; to Janic- 
 
 ulum, 313. 
 
INDEX 
 
 5i9 
 
 Sectatores, 436. 
 
 Seditions, tribunician, 379, 313; Varian 
 law on, 401. 
 
 Sempronius Gracchus, C, legislation of, 
 2 55 f-t 37i-8s; defeat for third trib- 
 unate, 384; energizes comitia, 384 f. 
 
 Sempronius Gracchus, Ti., censor (169), 
 trial of, 253; tribune (184), 320 f. 
 
 Sempronius Gracchus, Ti., tribune (133), 
 weakens veto, 117, 366, 476; prosecutes 
 Annius Luscus, 322; legislation of, 
 363-6; deposes colleague, 366, 367 f.; 
 new platform of, 368; defeated for sec- 
 ond tribunate, 368 f. 
 
 Senate, represents primitive tribes, 3, n. 
 8, 7; relation of to patriciate, 177 ff.; 
 annuls comitial acts, 106 f., 109, 113, 
 396. 399 '-. 4°S, 433. 457. n. 7, 459; 
 comitia in, 129, 130; wisdom in, 173; 
 auctoritas of, 174; grants imperium, 
 188; and curiate law, 197-9; declares 
 war, 230-2; admits plebeians, 235; 
 appoints special courts, 253-5, 3°9 f-> 
 368, 371, 388; passes consultum ulti- 
 mum, 255 *-. 273. 387 f.; grants citizen- 
 ship, 304; prolongs imperium, 305; 
 plants colonies, 310 f., 351; loses legal 
 control of tribunician assembly, 313 f., 
 316; conciliates citizens, 337; depends 
 on people, 345, 351; class of criminals, 
 374; controls tax contracts, 380; de- 
 poses consul, 409; regains control of 
 assemblies, 406-8, 413 f. ; admission 
 to through quaestorship, 415, 418 f.; 
 gains through Sulla, 418; law on ses- 
 sions of, 424 f. ; grants dispensations, 
 430 f.; limited by Caesar, 457; con- 
 siders rogations, 462, 463. 
 
 Senators, privati, 102; mostly creditors, 
 312; given seats at theatre, 356 f. ; 
 monopolize quaestiones, 374; debarred 
 from by Sempronian law, 375; under 
 lex repetundarum, 377; chosen indi- 
 rectly by people, 391; swear to uphold 
 law, 395, 440, 464; associate with 
 equites in courts, 402, 427 f., 455; 
 elected by tribes, 418; qualifications 
 of under lex Ovinia, 307 ; lex Claudia, 
 335; Sulpicia, 404; see Senate. 
 
 Senatus consultum, on treaties, 175, 303, 
 465, n. 3 ; declaring war, 230 ; appoint- 
 ing special court, 253; essential to 
 legality of plebiscite, 277 f.; for settling 
 Latium, 304; Hortensian law on, 313; 
 for founding colonies, 351; on usurpa- 
 tion of citizenship, 354; on importation 
 of wild beasts, 346; on finance, 422; 
 on trial of provincials, 424, n. 6 ; amend- 
 ing lex Acilia Calpurnia, 436; de col- 
 legiis, 445; honoring Caesar, 451; 
 
 ultimum, 192, n. 6, 255, 273, 371, 
 
 387 f- 
 Seniors, in centuriate system, 66, 68, 81 f.; 
 
 number of, 84, 205; after reform, 216. 
 Septemviri agris adsignandis, under lex 
 
 Antonia, 458. 
 Sergia (tribus), 58. 
 Sergius, M., quaestor, 245. 
 Service, public, exempts from prosecution, 
 
 377- 
 Servilius Ahala, G, trial of, 246; rogation 
 
 on property of, 289 f. 
 Servilius Caepio, Q-, imperium of abrogated, 
 
 39°- 
 
 Servilius Glaucia, C, 393. 
 
 Servilius Rullus, P., tribune (64-63), 435 
 
 Servius Tullius, distributes land, 49; in- 
 stitutes new tribes, 50 ff., 217; centu- 
 riate system, 66, 68; personality of, 
 68, n. 7; increases equites, 74; and 
 equestrian fund, 93; reference to in 
 lex Cornelia Pompeia, 406. 
 
 Sesterce, 87. 
 
 Sheep, standard of value, 269, 287. 
 
 Sibylline books, 284. 
 
 Sicilians, receive citizenship, 454, n. 4. 
 
 Sicinus, L., tribune (76), 425. 
 
 Signa ex tripudiis, 107. 
 
 Sisenna, on creation of new tribes, 57 f. 
 
 Slaves, manumission of, 297; grant of 
 citizenship to, 353. 
 
 Smiths, in centuriate system, 206. 
 
 Social classes, ancient view of, 16-25, 44 '•; 
 conventional view, 25-38; comparative- 
 sociological, 38-47; universal, 38 f., 
 origin of in nature, 39; in army, 75 f. 
 
 Social war, 401. 
 
 Sodales Titii, z, u. 6 f., 8. 
 
 Sodalicii, lex on, 447 f. 
 
 Soldiers, and appeal, 251-3; laws on ser- 
 vice of, 382, 388 f ., 392. 
 
 Solon, law of, on citizenship, 44, n. 1; 
 connection with classes, 71. 
 
 Soltau, on comitia centuriata, 201; com- 
 position of tribunician assembly, 275, 
 n. 5; Licinian-Sextian law, 296, n. 4; 
 validity of plebiscite, 300, n. 6. 
 
 Sovereignty, belongs first to king and coun- 
 cil, 171 f.; not popular, 173; popular 
 develops, 303, 308, 316, 368, 399; of 
 law, yielding to democracy, 308; not 
 real, 346. 
 
 Speaking, public, prohibition of, 142, 147 
 on merits of candidates, 143; right of, 
 145 ff. ; compulsion, 148; time limited, 
 149; sparingly granted, 173 f. 
 
 Spectio, no; belongs to magistrates only, 
 113; when forbidden, 114; under 
 Aelian and Fufian laws, 116. 
 
 Statutes, see Leges. 
 
520 
 
 INDEX 
 
 Stipendium, 63. 
 
 Storm, interrupts comitia, 248. 
 
 Stultorum feriae, 9, n. 6. 
 
 Stuprum, prosecutions for, 247, 291 f., 
 
 3 2 °. 327. n - "■ 
 Submovere, 150, n. 9. 
 Suburana (tribus), 50. 
 Sucusana (tribus), 220. 
 SufTragia sex, 75, n. 1, 113, 157, 209, 224, 
 
 227. 
 Suffragium, 157; bestowal of, 352; see 
 
 Citizenship. 
 Sulla, see Cornelius Sulla. 
 Sulpicius Rufus, P., tribune (88), 403-5. 
 Sumptuary laws, 337, f., 356, 388, n. 9, 
 
 428, 455 f - 
 Supernumeraries, in centuriate system, 68, 
 
 80-2, 226. 
 Sutrium, tribal assembly at, 297, 465. 
 Zi/trcrlrm, 8, u. 6. 
 
 Tabulae iuniorum, 82, n. 3. 
 
 Tarpeian Rock, hurling from, 257, n, 5, 
 264, n. 8. 
 
 Tarquinius Priscus (Elder), relation of to 
 equites, 74, 93. 
 
 Tarquinius Superbus, relation of to cen- 
 turiate system, 201, n. 3 f. 
 
 Taxes, in early Rome, 61-4. 
 
 Tellus, 9. 
 
 Temples, dedication of, 340 f., 347, n. 2. 
 
 Templum, 107 f., 144. 
 
 Terentius Varro Lucullus, M., trial of (66), 
 3*4- 
 
 Testaments, in comitia calata, 157-9; laws 
 on. 352. 463. n - 8, 459- 
 
 Testimony, false, prosecution for, 246. 
 
 Theatres, regulation of, 356 f., 428 f. 
 
 Theft, see Furtum. 
 
 e^/xio-ro, 177. 
 
 Thunder, effect of, on comitia, 109, in. 
 
 Thurii, tribes of, 7, n. 1. 
 
 Titia (curia), 8, n. 6, n, n. 7. 
 
 Titienses, Titles, 2, 74. 
 
 Titus Tatius, 2 f., 4, n. 3, 56, u. 3. 
 
 Tolosa, gold found at, 390. 
 
 Transitu) ad plebem, 162 f., 403, 438, 443. 
 
 Transpadani, receive citizenship, 402, 454. 
 
 Trasimene, political effect of disaster at, 343. 
 
 Treaty, alleged between plebs and govern- 
 ment, 265. 
 
 Treaty-making, originally with magistrates 
 and senate, 174!, 273, 283; with king, 
 181; ratification of acquired by tribes, 
 I 75. 283, 302 f., 344, 349. 
 
 Trebellius, L., tribune (67), 431. 
 
 Trebonius, L. and Cn., 285. 
 
 Tremellius, Cn., praetor (160), prosecution 
 of, 322. 
 
 Tresviri (Triumviri) nocturni, trial of, 318. 
 
 Tresviri epulones, 347, 391, 416, u. 3. 
 Tribes, the three primitive, 2-8; and 
 Greek phylae, 4, 28; military function 
 of, 10, 69, 74; social composition, 24; 
 admission of new citizens to, 44. 
 Tribes, the later, 48-65; with gentile names, 
 35, 50; the thirty-five, 48-65; urban, 
 50 ff., 355; rural, 50 ff.; character, 54; 
 temporary increase in Social War, 57 f., 
 402; altered in 312, 304 B.C., 64 f.; 
 made up by censors, 300, 355; relation 
 of to centuries, 77, 212 f., 215, 217 ff.; 
 citizens assigned to, 352 f., 401 f. ; 
 assembly of, see Comitia tributa. 
 
 Tribuni aerarii, 64, n. 3; in jury service, 
 427 f. ; debarred from, 455. 
 
 Tribuni celerum, 7 f. ; preside over contio, 
 141, n. 3; comitia curiata, 468; right 
 of to address people, 145, n. 4. 
 
 Tribuni militum, 7; make levy, 77; Vale- 
 rian law on, 235; hold court-martial, 
 251; elected by people, 234, 306, 342, 
 349, n. 1; rarely appointed, 342, n. 2. 
 
 Tribuni militum consularipotestate, 229, 234, 
 
 Tribuni plebis, auspicium of, 104; obnun- 
 tiate, 115; under Aelian and Fufian 
 laws, 116 f., 358 f.; election of, 127, 
 128, 262, 272; preside over contio, 
 140; comitia, 263, 465, 469; lack 
 power of summoning, 148; veto curiate 
 law, 199; bring capital actions before 
 centuries, 245-53; limited by Sulla, 
 258, 324, 413 f. ; instituted, 262; object 
 of, 263 ; have no power over patricians, 
 264, 268, 276; sacro sancti, 264-6, 
 274; early methods of, 269, 270, 272, 
 2 73. 2 79! pre-decemviral jurisdiction, 
 267-9; number increased, 272; con- 
 trolled by dictatorship, 273; Valerian- 
 Horatian law on, 274, 277 f., 279 f.; 
 later jurisdiction, 280, 286-90, 317-25; 
 agrarian agitation, 310 f. ; right to 
 summon senate, 314; to prosecute 
 unconditionally, 315; limited by courts, 
 326 f.; reelection of permitted, 369; 
 restored after Sulla, 423-7. 
 
 Tribunus, related to tribe, 7. 
 
 Tributum, and tribes, 63 f.; disused, 89; 
 impeded by tribunes, 279; in third 
 Samnite war, 311. 
 
 Trientabula, 368. 
 
 Trifu, 5, 6. 
 
 Trinum nundinum, Trinundinum, 259 f. 
 
 Triumph, deliberated on in contio, 147; 
 depends on curiate law, 190, 192 f. ; 
 decreed by senate, 273, 284, 293 f.; by 
 people, 277, n. 4, 293, 334; comitial 
 act necessary to, 334 f.; on Alban 
 Mount, 293, 335, n. 2, 350; laws on, 
 35°. 417. 4«. 438, 45'- 
 
INDEX 
 
 521 
 
 Triumvirate, so called first, 441; second, 
 459; see Triumviri. 
 
 Triumviri (tresviri) agris adsignandis, under 
 Sempronian laws, 366, 367, 373, 375, 
 379. 386- 
 
 Triumviri capitales, 307, n. 1, 312, 332. 
 
 Triumviri coloniae deducendae, 288, 307, 
 .35° f- 
 
 Triumviri mensarii, 336 f. 
 
 Triumviri rei publicae constituendae, 459. 
 
 Triumviri, for repairing temples, 337; for 
 dedicating, 340. 
 
 Trumpeters (tubicines, liticines), in cen- 
 turiate system, 66, 206; summon ac- 
 cused, 259. 
 
 Tuba, 468. 
 
 Tubicines, 81, n. 2, 206, 226; see Musicians. 
 
 Tullus Hostilius, permits appeal, 239. 
 
 Turma, 12. 
 
 Twelve Tables, law of on inheritance, 30; 
 ratified by laws, 233; provide for legis- 
 lation, 233 f., 307, 368, 464, 474; com- 
 position of, 239; guarantee right of 
 appeal, 240; on privilegia, 241, 245, 
 268; forbid conubium, 294; criminal 
 laws of, 35 7 ; grant jursidiction to tribes, 
 474- 
 
 Urbs, 7. 
 
 Urn, for drawing lots, 466, n. 4. 
 
 Usurers, fined, 291, 312; violate law, 351; 
 
 oppress provinces, 430. 
 Ut rogas, 467. 
 
 Valerius Flaccus, L., prosecution of (98), 
 
 324. 
 
 Valerius Publicola, P., consul (509), 232; 
 existence of questioned, 240. 
 
 Valuation of property, change in from land 
 to money, 65. 
 
 Varius, Q-, tribune (91-90), prosecutes 
 Aemilius, 257, n. 5. 
 
 Varro, on Servian tribes, 53 f. 
 
 Vatinius, tribune (59), 117, 442 f. 
 
 Vectigalia, law on Campanian, 337, 351, n. 
 5; order to farm, 424; in Italy, abol- 
 ished, 438; reimposed, 457. n - 6 - 
 
 Veliensis (curia), 11. 
 
 Velina (tribus), 334. 
 
 Velitia (curia), 11, n. 7. 
 
 Velleius, on admission of socii to tribes, 
 57 f.; colonization, 351; lex Livia iudi- 
 ciaria, 398. 
 
 Vennonius, on Servian tribes, 53. 
 
 Verres, trial of, 427. 
 
 Vestals, trial of, 390 ; choice of, 434. 
 
 Veto (intercession), tribunician, weakened, 
 117; original lack of, 269, 279; estab- 
 lished by Hortensian law, 270, 315; 
 conservative, 330; against senate, 345; 
 oath not to use, 380 f.; against certain 
 consulta forbidden, 381 f.; overborne, 
 393 f-. 43°. 447'. limited by Sulla, 414. 
 425 f. ; to what point allowable, 466 f. ; 
 consular, 423. 439- 
 
 Veturius, C, condemned, 250, n. 8. 
 
 Viatores, 264, n. 5; of tribune, 150; origi- 
 nally lacking, 290; of aedile, n. 4. 
 
 Vicus Tuscus, 3. 
 
 Vigintiviri agris adsignandis, 439. 
 
 Vindicia, 246, n. 5. 
 
 Vis (violence), 326; under lex Plautia, 424; 
 Pompeia, 448 f.; Iulia, 455. 
 
 Vitio creatum esse, etc., 107, n. r. 
 
 Volaterrani, lose citizenship, 236, 422. 
 
 Volscians, expelled, 273. 
 
 Voting, origin of, 156 f., 275 f.; by heads, 
 157; formula for, 179; order of in 
 comitia centuriata, 211, 469 f.; after 
 reform, 217, 224, 227; by ballot, 359 f.; 
 in quaestiones, 420; in comitia tributa, 
 466 f. 
 
 Voturia (tribus), 52, 11. 1. 
 
 Voturia iuniorum, 217. 
 
 Vultures, auspices from, 108. 
 
 War, declarations of, belong originally to 
 magistrates and senate, 175-7, 181, 
 230, 273; acquired by centuries, 177, 
 230, 302, 344; formula of, 176, 232. 
 
 Widows and orphans, tax on, 62, 93. 
 
 Women, debarred from assemblies, 146 f., 
 326, u. 1; luxury of restrained, 338, 
 356; right of inheritance restricted, 
 35*- 
 
 Zaleucus, 177. 
 
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