path: root/68419-0.txt

*** START OF THE PROJECT GUTENBERG EBOOK 68419 ***

THE ROMAN ASSEMBLIES

                              [Illustration]

                          THE MACMILLAN COMPANY
                        NEW YORK. BOSTON. CHICAGO
                          ATLANTA. SAN FRANCISCO

                         MACMILLAN & CO., LIMITED
                         LONDON. BOMBAY. CALCUTTA
                                MELBOURNE

                    THE MACMILLAN CO. OF CANADA, LTD.
                                 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.

                                 New York
                          THE MACMILLAN COMPANY
                                   1909
                          _All rights reserved_

                             COPYRIGHT, 1909,
                        BY THE MACMILLAN COMPANY.

           Set up and electrotyped. Published September, 1909.

                              Norwood Press
                  J. S. Cushing Co.—Berwick & Smith Co.
                          Norwood, Mass., U.S.A.




To MY WIFE


      Οὐ μὲν γὰρ τοῦ γε κρεῖσσον καὶ ἄρειον,
    Ἢ ὅθ’ ὁμοφρονέοντε νοήμασιν οἶκον ἔχητον
    Ἀνὴρ ἠδὲ γυνή· πόλλ’ ἄλγεα δυσμενέεσσι,
    Χάρματα δ’ εὐμενέτησι· μάλιστα δέ τ’ ἔκλυον αὐτοί.




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 practically
all the modern authorities have been utilized. A determination 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 conservative 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 encouragement 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 experience.
Professor George N. Olcott has advised me on various numismatic matters,
and I am indebted to Dr. John L. Gerig 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
knowledge, 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


                                                                     PAGES

                                 PART I

    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                                          119-138

                               CHAPTER VII

    THE CONTIO                                                     139-151

                              CHAPTER VIII

    THE CALATA COMITIA                                             152-167

                               CHAPTER IX

    THE COMITIA CURIATA                                            168-200

                                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 REPUBLIC    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




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 plēnus, plēbes, πλῆθος, πολύς,
πίμπλημι,[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.[3] Fundamentally personal, it included all those
individuals, 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 on the general participation in public
benefits,”[6] is doubtless too abstract for the beginnings of Rome.
Citizenship—membership in the populus—with all that it involved is
elaborately defined by the Roman jurists;[7] 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 assembly.[8] 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 relation with the founding
of the city.[9] For some unknown reason they were led to connect the
myth of Titus Tatius, the eponymous hero of the Tities,[10] with the
Quirinal,[11] and with the Sabines,[12] who were generally supposed to
have occupied that hill.[13] 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,[14] 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,[15]
neither he nor any other ancient writer identified the Tities with the
Sabines, whose quarter in the city was really unknown,[16] or the Luceres
with an Etruscan settlement under Caeles whether in the Vicus Tuscus[17]
or on the Caelian hill.[18] 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 consisting originally of a single tribe, to which a second
and afterward a third were added, or that any one of these three tribes
had ever been an independent community. These views are modern;[19] there
is no trace of them in the ancient writers.[20] 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 possessed 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.[21] Under these circumstances modern
speculations as to their independent character and diverse nationality
seem absurd. The proper method of solving 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,[22] 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.[23] Far from being confined to Rome, the tripartite division of
the community belonged to many Greek and to most Italian peoples,[24]
and has entered largely into the organization of communities and nations
the world over.[25] A derivation of tribus, Umbrian trifu, accepted by
many scholars, connects it with the number three.[26] 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[27]—and of the same three Latin
(or Etruscan?) tribes in several old Latin cities, could not result from
chance combinations in all these places, but point unmistakably to the
systematic imitation of a common pattern. That pattern must be ultimately
sought in the pre-urban populus, ἔθνος, 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 satisfactorily explain the tribal organization of
the city-states which grew up within the areas occupied by these three
folks respectively. 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 populus allowed its tribes to become
independent,[28] in Latium a development in that direction was prevented
by the rise of city-states, which completely overshadowed the preëxisting
organization.

The Italian city-state grew not from a tribe or a combination of
tribes, but from the pagus,[29] “canton,” a district of the pre-urban
populus with definite consecrated boundaries,[30] usually centering
in an oppidum—a place of defence and refuge.[31] In the beginning the
latter enjoyed no superior right over the territory in which it was
situated.[32] 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 was artificial, yet it must have taken some account
of existing ties of blood.[33] At the same time the oppidum became an
urbs[34]—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[35] were merged in one urbs—that known as the city of the
four regions.[36] Urbs and ager excluded each other, just as the oppidani
contrasted with the pagani;[37] but both were included in the populus.

Most ancient writers represent the three tribes as primarily local,[38]
and the members as landowners from the founding of the city.[39] 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.[40]

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.[41] 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 celerum,[42] the ludus Troiae,[43] and less
certainly in the Sodales Titii.[44]


III. _The Curiae_

The curia as well as the tribe was a common Italian institution. We know
that it belonged to the Etruscans,[45] the Latins,[46] and several other
peoples of Italy.[47] There were ten curiae to the tribe, making thirty
in all.[48] The association was composed, not of gentes as many have
imagined, but of families.[49] For the performance of its social and
religious functions it had a house of assembly, also called curia,[50] 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 historical time there were two such buildings—the Curiae Veteres[51]
on the northeast slope of the Palatine near the Arch of Constantine,
containing seven curial meeting-places, and the Novae Curiae[52] near the
Compitum Fabricium, containing the others. Their deities were Juno[53]
and Tellus;[54] and their chief festivals were the Fornacalia and the
Fordicidia.[55] As the worship was public, the expense was paid by the
state.[56] At the head of the curia stood the curio—who in historical
time was merely a priest[57]—assisted in his religious functions by
his wife and children,[58] by a lictor[59] and a flamen.[60] The fact
that the curio had these officials proves that he was originally a
magistrate.[61] One of the curiones the people elected curio maximus
to exercise general supervision over the worship and festivals of the
association.[62]

Another function of the curiae was political. The grown 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.[63] Religious and political 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[64]
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.[65] Doubtless the writer fairly
describes the military system which Rome employed before the introduction
of the phalanx,[66] and which corresponds closely with the system
prevalent among the early Greeks,[67] Germans,[68] and other European
peoples.[69] The military organization was everywhere a parallel of
the civil. The Roman army, however, was by no means identical with the
curiate assembly, for many belonged to the tribes and the curiae who for
various reasons were exempt from military service.[70]

It is probable, too, that the curiae, as well as the tribes,[71] were
territorial divisions. Not only have we the authority of Dionysius[72]
that each curia occupied a district of the state, but also two of the
seven known curial names—Foriensis and Veliensis[73]—are local. Though
the two mentioned refer to places within the city, the country people
were also included in the associations.[74]

       *       *       *       *       *

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 leader, who in the language of
the country is called decurion.”[75] 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 the
legion.[76] From Varro[77] we learn that the three primitive tribes
furnished turmae and decuriae of cavalry, the decuriae commanded 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.[78]
Had he meant gentes, he would have used the corresponding Greek word
γένη. Niebuhr[79] 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,[80] 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.[81] It is clear, however, that in this
passage Laelius is not concretely defining the voting units of the
various assemblies, but is stating in a general way the principles
underlying their organization into voting units. In the comitia
centuriata the principle is wealth and age; census et aetas is not to
be identified with centuria or with any other group of individuals in
this assembly. In like manner regiones et loca expresses the principle
of organization of the tribal assembly; or if used concretely, it must
designate the tribes themselves, and not subdivisions 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 themselves 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.[82] 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.,
    _Römische Geschichte_, I. bk. viii; Peter, C., _Geschichte
    Roms_, i. 17 ff.; Niese, B., _Grundriss der röm. Geschichte_,
    16 ff., 28 ff.; Jordan, H., _Topographie der Stadt Rom im
    Altertum_, I. i. 153 ff; iii. 34; Gilbert, O., _Geschichte
    und Topographie der Stadt Rom im Altertum_, i, ii; Richter,
    _Topographie 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 Landeskunde_, ii. 488
    ff.; Kornemann, E., _Polis und Urbs_, in _Klio_, 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 frühesten zeiten Roms_,
    in _Correspbl. d. deutsch. Gesellsch. f. Anthr. Ethn. u.
    Urgesch._ xxxv (1904). 122; Pöhlmann, R., _Die Anfänge Roms_;
    Schrader, O., _Sprachvergleichung und Urgeschichte_, bk. IV.
    ch. xii; _Heer, König, Sippe, Stamm_ in _Reallexikon der
    indogermanischen Altertumskunde_; Fustel de Coulanges, _Ancient
    City_, bk. iii; Leist, _Graeco-italische Rechtsgeschichte_,
    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; _Röm. Staatsrecht_, iii. 3
    ff., 112-22; Marquardt, J., _Röm. Staatsverwaltung_, i. 3
    ff.; Lange, L., _Röm. Altertümer_, i. 55-284; _Das röm.
    Königtum_, in _Kleine Schriften_, i. 77-104; Herzog, E.,
    _Geschichte und System der röm. Staatsverfassung_, i. 3-23,
    969 ff.; Willems, P., _Droit public Romain_, 17 ff.; Karlowa,
    O., _Röm. Rechtsgeschichte_, i. 30 ff.; Greenidge, A. H. J.,
    _Roman Public Life_, ch. i; Bernhöft, F., _Staat und Recht
    der röm. Königszeit_, 69 ff.; Genz, _Das patricische Röm_, 51
    ff.; Morlot, E., _Les comices électoraux sous la république
    Romaine_, ch. i.

    II. THE PRIMITIVE TRIBES: Niebuhr, B. G., _Röm. 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 Könige im alten Italien_, 35-7; controverted by
    W. Soltau, in _Woch. f. Kl. Philol._ xxv (1908). 220-3;
    Mommsen, _Röm. Staatsr._ iii. 95-100, 109-12; _Rom. Tribus_,
    1 f.; Lange, _Rom. Alt._ i. 81-101; Herzog, ibid. i. 23 ff.;
    Madvig, J. N., _Röm. Staat_, i. 95-8; Mispoulet, J. B., _Les
    institutions politiques des Romains_, i. 3-6; Soltau, W.,
    _Altröm. Volksversammlungen_, 46-51; Willems, P., _Le sénat
    de la république Romaine_, I. ch. i; Bloch, G., _Les origines
    du sénat Romain_, 1-16, 32-8; Bernhöft, 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 romanorum tribuum origine ac propagatione_
    1 ff.; Volquardsen, C. A., _Die drei ältesten röm. Tribus_, in
    _Rhein. Mus._ N. F. xxxiii (1878). 538-64; Bormann, E., _die
    älteste Gliederung Roms_, in _Eranos Vindobonensis_, 345-58;
    Holzapfel, L., _Die drei ältesten röm. Tribus_, in _Beiträge
    zur alten Geschichte_, i (1902). 228-55; Bertolini, C. I., _I
    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; Vaniček,
    A., _Etymologisches Wörterbuch der lat. Sprache_, 160;
    _Griech.-lat. etym. Wörterbuch_, 1116; Niebuhr, ibid. i.
    321-54; Schwegler, ibid. i. 610-12; Gilbert, ibid, index s.
    Curia; Richter, ibid. index s. Curia; Mommsen, _Röm. Staatsr_.
    iii. 89 ff.; Lange, ibid. i. 275-84, and index, s. Curia;
    Willems, P., _Sén. Rom._ ibid.; Bloch, G., _Orig. d. sén._ 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; Müller, J. J., _Studien zur röm. Verfassungsgeschichte_,
    in _Philol._ xxxiv (1875). 96 ff.; Ihne, Wm., _History of
    Rome_, i. 113 f.; Newman, F. W., _Dr. Ihne on the Early Roman
    Constitution_, in _Classical Museum_, vi (1849). 15 ff.;
    Hoffmann, E., _Patricische und plebeiische Curien_; Kübler and
    Hülsen, _Curia_, in Pauly-Wissowa, _Real-Encycl._ iv. 1815-26;
    Pelham, H., _The Roman Curiae_, in (English) _Journal of
    Philology_, ix (1880). 266-79.

    IV. THE GENTES: Fustel de Coulanges, ibid. bk. ii; Leist,
    _Graeco-ital. Rechtsgesch._ 11 ff.; _Alt-arisches Ius 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 _Annales de l’institut 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. 211-59, and see index, s. v.; Mommsen, _Röm. Forsch_,
    i. 1-127; _Röm. Staatsr._ iii. 9-53, and see index s. v.;
    Mispoulet, ibid. i. 9-14; Willems, _Sén. Rom._ i. chs. i-iii;
    Müller, J. J., _Studien z. röm. Verfassungsgesch._ in _Philol._
    xxxiv (1876). 96-104; Bloch, G., ibid. 102 ff.; _Recherches
    sur quelques gentes patriciennes_, in _Mélanges d’archéologie
    et d’histoire de l’école Française de Rome_, 1882. 241-76;
    Soltau, ibid. 58-64, 652-5; Bernhöft, ibid.; Genz, ibid.
    1-31; Bloch, L., _Die ständischen und sozialen Kämpfe in der
    röm. Republik_; Holzapfel, L., _Il numero dei senatori Romani
    durante il periodo dei rei_, in _Rivista di storia antica_,
    ii. 2 (1897). 52-64; Marquardt, J., _Privatleben der Römer_,
    1-26, 353 f.; Deecke, ibid. 275 ff. (on Italian names); Michel,
    N. H., _Du droit de cité Romaine_; Köhm, J., _Altlateinische
    Forschungen_, 1-21; Lécrivain, C., _Gens_, in Daremberg et
    Saglio, _Dict._ 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 über 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[83] is primarily an inquiry into the social composition
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,[84] 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 admission 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 (1) 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 the patricians from the
plebeians. According to Cicero, Romulus constituted a number of chief men
into a royal council, the senate, whose members he so highly esteemed as
to have them called patres, and their children patricians.[85] Cicero
thinks of the multitude as existing at first without a politically
recognized nobility, yet showing natural distinctions of worth. By
calling into the senate the ablest and best men, the state ennobled them
and their families.[86] Livy’s[87] 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;[88] on that ground the state granted them nobility,[89] which
accordingly in Rome, as in every early community, was founded on personal
merit.[90] In the more detailed theory of Dionysius,[91] 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 δημοτικοί, 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
Plutarch,[92] “Romulus, after forming the army, employed the rest of the
people as the citizen body (δῆμος); the multitude he called populus, and
appointed a hundred nobles to be councillors, whom he called patricians,
and their assembly the senate.”[93]

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.[94]
Why the senators were called patres the ancients give various reasons.
Cicero[95] thinks patres a term of endearment; Sallust[96] believes that
the name was applied either because of age or because of the similarity
of their duty; Livy[97] sets it down as a title of honor; Festus[98]
thinks chiefly of their age and wisdom; Paulus,[99] his epitomator,
suggests that they were so called because they divided their lands
among the poorer class as fathers among children; Dionysius[100] gives
three possible reasons, (1) greater age, (2) possession of children,
(3) family reputation. The sources generally agree in representing 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 senators.[101] An examination
of the word itself will tend to confirm the ancient view. It seems to
have originally signified “protector,” “keeper,” “nourisher,”[102] hence
“owner,” “master.” Pater familias is nourisher, protector, and master
of a household.[103] 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;[104] 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 indicates, was originally made up of elderly men, senatores,
maiores natu.[105] It would be natural to call them patres because of
their authority over the community or of their age. As a designation 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 collectively patres of the community,
not individually patres of children, clients or gentes.[106] 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.[107] Though
in the sources the patres are generally senators the word is sometimes
synonymous with patricii.[108]

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,”[109] 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 unknown 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[110] 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, nothing
more than ingenui? I can now cite my father—a consul—and my son will be
able to cite a grandfather.”[111] There should be no doubt as to the
meaning of these passages; the antiquarian who conjectured that patricius
was derived from patrem ciere, and therefore defined patricii as those
who could cite 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 making Appius Claudius
Crassus in 368 include in the term the whole body of citizens Livy[112]
dates this meaning back to the period before the Licinian-Sextian laws.
Elsewhere are indications that in early times ingenui connoted rather
respectable birth, and so applied especially to the patricians.[113] The
quotations from Cincius and the attempted derivation of patricius from
patrem ciere, accordingly, are sufficiently explained without 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 adjective patricius applied as well
to their families—the patricii being those who could cite illustrious
fathers.[114] From this point of view the Roman nobility did not differ
from that of most other countries.

The plebs,[115] then, were the mass of common freemen, from whom the
nobility was differentiated in the way described above. 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[116] records that Romulus distributed the
plebs in clientage among the chief men; Dionysius[117] 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,[118] her
historians doubtless 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[119] 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.[120] The latter view is historically better
founded.

There must have been various origins of clientage, with corresponding
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[121] and to the forum,[122] but
also testified and brought accusations in the courts[123] and voted
in the assemblies;[124] and when the plebeians gained the right to
hold offices the clients were admitted along with them to the same
privilege.[125] In his relation with the state, 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.”[126] Since the sources generally consider the patricians
the descendants of the hundred original senators,[127] they cannot
help regarding the populus 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 interchangeable
with plebs; often, too, it signifies the people in contrast with the
senate.[128] It is clear, then, as Mommsen has pointed out,[129] 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 distinguished 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 meaning patricians.[130] The combination of the
two words with senatus,[131] 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.[132] 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 composition to its
divisions, the three old tribes and the thirty curiae.[133] With perfect
consistency they mention repeated enlargements 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 exception to
the citizenship and to the tribes and the curiae, even compelling some
forcibly to enter this condition.[134]

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 patricians.[135] Not only did the lower classes
attend this assembly, but they also voted in it, and constituted the
majority.[136]


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 century of the republic,
they could have had no first-hand acquaintance with primitive Roman
conditions, but must have drawn their information concerning the
remote past from earlier writers—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.[137]

The position of Niebuhr has in the main proved untenable. Notwithstanding
all the source-sifting of modern times, pursued 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 admit that though Cicero and the Augustan writers might
misinterpret 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 composition of
the earliest assembly. Present scholarship accordingly insists that in
such weighty matters there was no essential difference of view between
earlier and later writers.[138]

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 documentary[139] 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 experience and the acute critical method of the
moderns.[140] 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 therefore they or
their sources, who on the whole were equally uncritical, made mistakes
in the difficult work of drawing inferences 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 spirit and character of the Roman constitution and has therefore
been an especial fountain of error;[141] 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 mentioned, not essentially inferior to the extant
native writers.[142]

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 composition of the primitive
Roman state. Although he asserts that it was made up of “patrons and
clients,”[143] he does not rest satisfied with this view, but proceeds to
trace clientage to the following 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.[144] Logically 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 hundred gentes. As no one could
be a citizen without membership in a gens,[145] and as the patricians
alone were active members of the gentes,[146] it must follow that the
patricians alone were citizens. 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 Aristotle’s
_Constitution of Athens_[147] seems to signify that the Athenian state
was once divided into four tribes (φυλαί), twelve phratries and three
hundred and sixty gentes (γένη). 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.[148] But the
suppositions (1) 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,[149] and a law of Draco[150]
proves that the early Attic phratry comprised both nobles and commons.
In historical times all citizens belonged to the phratries; whereas but
few were members of the gentes.[151] 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,[152] 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
definition, quoted by Cicero,[153] we may at once conclude that in their
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,[154] the Lutatia,[155] the Calpurnia,[156] the Domitia,[157]
the Fonteia,[158] the Aurelia,[159] and the Licinia.[160] Some gentes
comprised both patrician and plebeian families, as the Cassia,[161] the
Claudia,[162] the Cornelia,[163] the Manlia,[164] the Papiria,[165] the
Publilia or Poplilia,[166] the Aebutia,[167] and the Servilia.[168] 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[169]
expresses 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 statement of Cicero[170] 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[171] implies the existence of plebeian gentes. It is
natural then that Varro[172] should make gentilitas a condition of men
in general. In asserting that there were a thousand gentile names the
same authority[173] must have included those of plebeians, for scarcely a
hundred belonging to patricians could have been known to him. By no means
the weakest argument in favor of the view here presented is the fact that
the laws of the Twelve Tables concerning inheritance, tutelage,[174]
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,[175] as is sometimes our word family.[176] 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.[177]

Other evidence for his hypothesis Niebuhr thinks he finds in a statement
of Labeo,[178] that the curiate assembly was convoked by a lictor,
the centuriate by a horn-blower; while Dionysius[179] 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[180] and Mommsen[181] have deprived Niebuhr’s hypothesis
of its main prop.

Niebuhr evidently believed that the curiae continued exclusively
patrician through the whole republican period.[182] This idea, however,
must be dismissed for the following reasons: (1) Our sources agree that
in the early republic the plebeians and clients continued to vote in
the curiate assembly.[183] (2) The plebeians were in the curiae in 208
B.C., when the first curio maximus was chosen from the plebs.[184] (3) In
the time of Cicero thirty plebeian[185] lictors represented the comitia
curiata, and gave the votes.[186] (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.[187]
(6) The confirmation by the curiae (lex de imperio) of elections in the
centuriate assembly was conceived as a second vote of the community.[188]
(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.[189]

Of the arguments in favor of Niebuhr’s hypothesis either added by
Schwegler[190] or brought by him into greater prominence, one only
demands attention. He reasons that if the 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 support 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.[191]
The Homeric Greek assembly included all freemen, who, however, had
little to do with the government in that period, and still less under
the aristocracy which followed.[192] 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.[193] 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.[194] 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 constitutional development.

With Schwegler, who grants however reluctantly that the commons were
received into the curiae before 208,[195] 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,[196] who more than any one else has made it clear that,
so far back as our sources reach, the populus comprised both patricians
and commons, nevertheless assumes that the latter were originally
outside the populus but were admitted no later than the beginning of the
republic.[197] In his reconstruction of the primitive state he supposes
that the citizens were all patres, in so far as they, and they alone,
could be fathers; or adjectively patricii, in so far as they, and they
alone, had fathers.[198] Added to the citizens and their slaves was a
class of persons termed clients, half way between freedom and slavery—a
class made up from various origins but chiefly by the conquest of
neighbors.[199] These clients belonged, as dependents of the gentes, to
the curiae, but had no vote in the assembly.[200] Later the plebs were
formed from the clients as the bond which united the latter with their
patrons relaxed.[201] 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.[202]

Although Mommsen knows well the weakness of the evidence offered by
earlier writers, he adopts the hypothesis of an original 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:

(1) The lack of right to the auspicia[203] and to the imperium[204] 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.[205] The auspicia, as Soltau[206] has noticed,
belonged to the ius honorum, as did also the imperium; 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.[207]

With the same kind of reasoning we could conclude that because 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.[208] That the Roman army before Servius
was similarly composed 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.[209]

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 patricians alone enjoyed the honors, privileges,
and influence usually 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.[210]

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[211] makes it clear that
these patres were senators. The phrase means senators from, or belonging
to, the greater or lesser gentes. Furthermore it has been proved (1) that
the patricians were not the only gentiles,[212] (2) that the curia, and
hence the state, was not an aggregation of gentes.[213]

(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.[214]

For (a) Mommsen cites those passages by which it has been shown[215]
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 regards (b) it has been sufficiently
proved[216] 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[217]
into the argument. Pellegrino,[218] however, identifies the refugees
at that place with the entire plebeian body. As the asylum was not
an Italian but a Greek institution,[219] 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.[220] Similar calumnies against other
peoples were concocted by their Greek enemies.[221] Notwithstanding
the fact that the story had not even a kernel of historical truth the
Romans accepted it with more or less modification[222] and used it to
some extent for partisan objects.[223] 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.[224] We are warranted 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 following
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.[225] (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 compared with the patricians—before they became
“the multitude.” (6) It is contradicted by everything we know of Rome’s
attitude 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 illiberality in this respect. Down to 353 the
citizenship thus freely extended included the right to vote.[226] (7) It
assumes the existence 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.[227]


III. _The Comparative-Sociological View_

As social classes belong to all society,[228] they cannot be explained
by the peculiar conditions of any one community. The 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,[229] which differentiate the population of a community
into leaders and followers.[230] 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.”[231] 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.[232] 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;[233] but in any case wealth and influence inherited
through several generations made nobility.[234] Primarily grounded on
ability, wealth, and renown, this preëminence was often heightened by a
claim to divine lineage or other close connection with the gods.[235]

There was evidently a stage of development—before the association of
the nobles into a class—in which chieftains alone held preëminence.
This condition is common in primitive society, as among the American
Indians.[236] Also among the Germans, 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.”[237] From Brehon law
we infer that the Irish lords were individually heads of their several
groups of kinsmen or of vassals;[238] and in Wales the nobles were a
hierarchy of chieftains.[239] As soon as leadership became hereditary
there arose noble families, in which the younger members were often
sub-chieftains;[240] and finally through intermarriage among these
families, as well as through the discovery of common interests, the
nobles associated themselves into a class.

Among the ancient Germans,[241] the Greeks of the Homeric age,[242]
and in some early Italian states[243] certain families had become
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.[244] 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.[245] After “a certain number of generations”
he can no longer be distinguished from the blooded nobility.[246] 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.”[247] “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.”[248] In the way just described many rose from the lower ranks to
nobility. In fact, eminent authorities assert that the inferior 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.[249]

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 forming by the side
of the old. Social distinctions were well developed 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.”[250] This
was true of Sparta. In her “the conquerors nevertheless, notwithstanding
great differences among themselves, remain sharply separated in social
function from the conquered.... The conquerors became a religious,
military, and political class, and the conquered an industrial
class.”[251] 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 exclusive.[252] 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.[253] We find the same mingling of conquerors and
conquered in varying degrees in ancient Ireland,[254] in England under
the Normans,[255] and throughout the Roman empire in the period of
Germanic settlements.[256] It becomes doubtful, therefore, whether a
nobility was ever formed purely by the superposition 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 hazardous to resort to the race theory in explanation; for such a
condition could be produced in the course of generations by different
modes of life, education, nurture, and marriage regulations of the nobles
and commons respectively.[257]

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 conquerors and conquered, like that which
we find in Laconia. We are forbidden to identify the plebs with the
conquered and the patricians with the conquerors by many considerations
mentioned above—for instance, by tradition,[258] by the derivation
of several patrician gentes from various foreign states,[259] by the
fewness of the patricians,[260] and by the fact that the latter show
no differentiations 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 populations
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 admitted to citizenship, to the tribes and
the curiae, and their nobles were granted the patriciate.[261] 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 corroborate 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 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., _Römische Geschichte_,
    i. 321 ff.; English, 158 ff.; Schwegler, A., _Römische
    Geschichte_, I. bk. xiv; Wigger, J., _Verteidigung der
    nieburschen Ansicht über den Ursprung der röm. Plebs_; Peter,
    C., _Geschichte Roms_, i. 31-3; _Verfassungsgeschichte der
    röm. Republik_; _Studien zur röm. Geschichte mit besonderer
    Beziehung auf Th. Mommsen_; Ihne, W., _History of Rome_,
    i. 109 ff.; _Early Rome_, ch. ix; _Asylum of Romulus_, in
    _Classical Museum_, iii (1846). 190-3; _Forschungen auf dem
    Gebiete der röm. Verfassungsgeschichte_ (also translated into
    English by Heywood); Lange, L., _Röm. Alt._ i. 414 ff., and
    see indices s. Patres, Plebs, etc.; Mommsen, Th., _History
    of Rome_, bk. 1. chs. v, vi; _Röm. Forschungen_, i. 131-284;
    _Röm. Staatsrecht_, iii. 127 ff., and see indices s. Patres,
    Plebs, etc.; _Abriss d. röm. Staatsrechts_, 3 ff.; Herzog,
    E., _Geschichte und System der röm. Staatsverfassung_, i.
    32 ff.; Meyer, E., _Geschichte des Altertums_, ii. 515-7,
    521 f.; v. 141-3; _Plebs_, in _Handiwörterb. d. Staatswiss._
    vi. 98-106; Niese, B., _Grundriss der röm. Geschichte_, 36
    f.; Ampère, J. J., _Histoire Romaine à Rome_, i. 440 ff.;
    ii. 15 ff.; Zöller, M., _Latium und Rom_, 163; Ridgeway,
    W., _Early Age of Greece_, i. 254 ff.; Oberziner, G.,
    _Origine della plebe Romana_; Conway, R. S., _I due strati
    di populazione Indo-Europea del Lazio e dell’Italia antica_,
    in _Rivista di storia antica_, vii (1903). 422-4; Hüllmann,
    K. D., _Ursprünge der röm. Verfassung durch Vergleichungen
    erläutert_; Mispoulet, J. B., _Institutions politiques des
    Romains_, i. 14 ff.; Greenidge, A. H. J., _Roman Public Life_,
    4 ff.; Abbott, F. F., _Roman Political Institutions_, 6 ff.;
    Naudet, M., _De la noblesse et des récompenses d’honneur
    chez les Romains_; Hoffmann, _Patricische und plebeiische
    Curien_; Pelham, H., _Roman Curiae_, in (English) _Journal
    of Philology_, ix (1880). 266-79; Soltau, W., _Altröm.
    Volksversamml._ 58 ff., 625 ff.; Bernhöft, F., _Staat und Recht
    der röm. Königsz._ 145 f.; Genz, H., _Das patricische Rom_;
    Clason, D. O., _Kritische Erörterungen über den röm. Staat_;
    Fustel de Coulanges, _Ancient City_, bk. iv; Pellegrino, D.,
    _Andeutungen über den ursprünglichen Religionsunterschied
    der röm. Patricier und Plebeier_; Hennebert, A., _Histoire
    de la lutte entre les patriciens et les plébeiens à Rome_;
    Bloch, L., _Die ständischen und sozialen Kämpfe in der röm.
    Republik_; Wallinder, _De statu plebeiorum romanorum ante
    primam in montem sacrum secessionem quaestiones_; Neumann,
    K. J., _Grundherrschaft der röm. Republik, Bauernbefreiung
    und Entstehung der servianischen Verfassung_; Holzapfel, L.,
    _Die drei ältesten römischen Tribus_, in _Beiträge zur alten
    Geschichte_, i (1902). 228-55; Heydenreich, E., _Livius und die
    röm. Plebs_, in _Samml. gemeinverständlicher wissenschaftlicher
    Vorträge_, xvii (1882). 581-628; Christensen, H., _Die
    ursprüngliche 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; Köhm, J., _Altlateinische Forschungen_, ch. i;
    Bröcker, L. O., _Untersuchungen über die Glaubwürdigkeit der
    altröm. 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 reproduction of this article); _Some Problems
    connected with the Roman Gens_, ibid, xxii (1907). 663-92.

    II. COMPARATIVE VIEW: Achelis, Th., _Moderne Völkerkunde,
    deren Entwickelung und Aufgaben_, (Stuttgart, 1896) 406 ff.;
    Ammon, O., _Die Gesellschaftsordnung und ihre natürlichen
    Grundlagen_, (Jena, 1895) Teil i; D’Arbois de Jubainville,
    _La civilisation des Celtes et celle de l’épopée Homerique_,
    (Paris, 1899) ch. ii; Arnd, K., _Die materiellen Grundlagen und
    sittlichen Forderungen der europäischen Kultur_, (Stuttgart,
    1835) 444 f.; Barth, P., _Die Philosophie der Geschichte
    als Sociologie_, i. (Leipzig, 1897) 382; Bastion, A., _Der
    Mensch in der Geschichte_, iii. (Leipzig, 1860) 323-38;
    _Allerlei aus Volks- und Menschenkunde_, ii. (Berlin, 1888)
    138-54; _Rechtsverhältnisse bei verschiedenen Völkern 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 problème de la vie: Essai
    de sociologie générale_, (Paris, 1901) 95; Brunner, H.,
    _Grundzüge der deutschen Rechtsgeschichte_, i (Leipzig, 1901);
    Bücher, C., _Industrial Evolution_, ch. ix; Buchholz, E.,
    _Homerische Realien_, II. bk. i (Leipzig, 1881); Caspari, O.,
    _Die Urgeschichte der Menschheit_, I. bk. ii. ch. 3 (Leipzig,
    1877); Cherbuliez, A. E., _Simples notions de l’ordre social
    à l’usage de tout le monde_, (Paris, 1881) ch. vi; Combes de
    Lestrade, _Éléments de sociologie_, (Paris, 1896) bk. vi;
    Cooley, C. H., _Human Nature and the Social Order_, (New York,
    1902) ch. ix (analysis of leadership); Craig, J., _Elements
    of Political Science_, i. (Edinburgh, 1814) 183-95; Duchesne,
    L., _La conception du droit et les idées nouvelles_, (Paris,
    1902) 36; Demolins, E., _Comment la route crée 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_, (London, 1894) 291-6; Frazer, J. G., _Lectures on
    the Early History of the Kingship_ (New York, 1905); Freeman,
    E. A., _History of the Norman Conquest of England_, iv (New
    York, 1873); Frohschammer, J., _Ueber die Organisation und
    Cultur der Menschlichen Gesellschaft_, (Munich, 1885) 84
    f.; Funck-Brentano, Th., _Civilisation et ses lois, morale
    sociale_, (Paris, 1876) chs. v-viii; Fustel de Coulanges,
    _Ancient City_, bk. iv; _De l’inégalité 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., _L’individu
    et la société_, (3d ed. Paris, 1897) ch. ii; Gumplowicz, L.,
    _Rassenkampf_ (Innsbruck, 1883); Harris, G., _Civilization
    considered as a Science_, (new ed. New York, 1873) ch. vii;
    Hellwald, Fr. von, _Culturgeschichte in ihrer natürlichen
    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.; ii. 37, 72; Hodgkin, _Italy and
    her Invaders_, (2d ed. Oxford, 1892, 1896) ii, iii; Jenks,
    E., _History of Politics_ (London, 1900); Kaufmann, G., _Die
    Germanen der Urzeit_ (Leipzig, 1880); Krauss, F. S., _Sitte
    und Brauch der Südslaven_ (Vienna, 1885); Lepelletier de la
    Sarthe, _Du système social, ses applications pratiques à
    l’individu, à la famille, à la société_, (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.; Müller-Deecke, _Die Etrusker_, 2. vols. (Stuttgart,
    1877); 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; Schröder, R.,
    _Lehrbuch der deutschen Rechtsgeschichte_ (4th ed. Leipzig,
    1902); Schurtz, H., _Urgeschichte der Kultur_, (Leipzig, 1900)
    ch. ii; Seebohm, F., _Tribal System in Wales_ (New York, 1895);
    _Tribal Custom in Anglo-Saxon Law_ (New York, 1902); Seeck,
    O., _Geschichte 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., _Anthropologie der Naturvölker_, ii.
    (Leipzig, 1860) 126-67; iii. (1862) 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.”[262]
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.[263]
The land was distributed 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 ownership of the
public domain.[264]

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 ownership
existed in Rome from her foundation as well as in her earliest colonies—a
view confirmed by the comparative study of language.[265] Each family,
they assume, held two iugera—the heredium[266]—or we may more correctly
say, at least two iugera.[267] This small lot has generally been
explained[268] 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.[269] 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.[270] 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;[271] and in the early colonies the bina iugera were granted
on the same aristocratic principle. If this is the true explanation of
heredium, the 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[272] that the sixteen oldest 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,[273] 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 consist 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 collection 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
he divided, as Fabius says,[274] 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[275] 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.[276] Those
who rejected it generally agreed that Servius divided the city into four
tribes and the country into districts, regiones, pagi.[277] Mommsen[278]
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,[279] included the country as well as the city. According to
this hypothesis Alba[280] and Ostia,[281] for instance, belonged to the
Palatine tribe. His opinion has found wide acceptance.[282] 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.[283] 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,[284] 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 centuriarum”—a document in the censors’
office. Though ascribed to Servius Tullius as author,[285] 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.[286] 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 existing, 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 organization 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
than the ascription to Servius of the whole centuriate organization 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.[287] Cato, who also states the original number as
thirty, without separating them into rural and urban,[288] may have been
influenced by Fabius, though it is likely that he drew from the same
source. Vennonius in making Servius the author of all thirty-five tribes
but slightly exceeds the absurdity of earlier writers.[289] 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 difficulty 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[290]—a superficial explanation in the true Varronian style.[291]
Following Varro, however, later authorities generally speak of the four
urban tribes of Servius without mentioning those of the country.[292] 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.[293] 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[294] is slightly troubled by the
Varronian notion that these country districts were not so much tribes as
regiones, πάγοι, but which served all the purposes of tribes including
the taking of the census.[295]

The various contradictory statements of the ancients regarding 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.[296] A less certain indication of the admission of
one or possibly two tribes still earlier in the republic may have
existed;[297] but here we reach the extreme limit of their knowledge.
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[298] and Meyer[299] 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[300] that in the time of Servius
there was no private property in land outside of the city.[301] If then
we bear in mind two points which Mommsen has himself established, (1)
that the local tribe was an aggregate of private estates,[302] (2) that
the four urban tribes of Servius were limited to the city,[303] we must
conclude that in the time of Servius the country estates were registered
in rural tribes—in other words that Servius instituted rural as well
as urban tribes.[304] The view of Meyer that all the citizens lived
in the city and the dependents in the country[305]—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,[306] 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 equalization of city and country.[307] 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 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 unknown. It was
increased by the acquisition of territory. Possibly 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.[308]
Wissowa[309] suggests that the immigration of the Claudian gens, the date
of which did not appear in the original tradition,[310] 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.[311] It must have been
the Clustumina.[312] We are certain that there were only twenty-one
till 387, when four new tribes were formed, bringing the number up to
twenty-five.[313] The twenty-sixth and twenty-seventh were admitted in
358,[314] the twenty-eighth and twenty-ninth in 332,[315] the thirtieth
and thirty-first in 318,[316] the thirty-second and thirty-third in
300[317], the thirty-fourth and thirty-fifth in 241.[318] 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[319] 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[320] as to the creation of two new tribes at about
that time. Velleius[321] 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.[322] As the authority of Sisenna, if not that
of Appian, compels us to accept the fact of new tribes, it is better to
interpret Velleius in that light.[323] 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[324] 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 among our sources; and we have no reasonable
ground for doubting an increase, though we may remain uncertain as to the
number added.[325]

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.[326]
His plebiscite was annulled by the senate on the ground that it had
been passed by violence;[327] but the provisions contained in it were
afterward legalized by a senatus consultum, and it was finally carried
into effect by Cinna as consul in 84.[328] This settlement of the
question was approved by Sulla[329] for all the Italians excepting
the Marsians and the Paelignians, who were enrolled in one tribe—the
Sergia.[330]

The nature of the tribes may be inferred from their object. The
intention of the organizer was to introduce the Greek military system,
comprising heavy and light infantry, in which the kind of service to be
performed depended upon financial ability to provide equipments.[331]
Seeing that a classification of citizens with respect to property was
necessary for this purpose, Servius instituted the tribes as a basis
for the census. That they contained the ager privatus only is indicated
by the exclusion from them of the Capitoline and Aventine hills.[332]
Their local character is established by the concurrent testimony of
ancient writers.[333] 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 individuals 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 process 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.[334] Thereafter the annexation of
new territory tended more and more to render the tribes geographically
indeterminate.[335] The process was far advanced by the admission (90-84)
of the Latins and Italians with their lands to the existing tribes,[336]
which were further enlarged in the imperial period by the incorporation
of provincial communities.[337] As consisting of lands, though no longer
necessarily adjacent, they were still considered local.[338]

The tribe was also a group of persons; in fact the word applies far more
frequently to persons than to territory.[339] During the early republic
a considerable degree of harmony was maintained between the two aspects
of the institution (1) possibly by a restriction on the transfer of
residence,[340] (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 landless, irrespective
of domicile, in the urban tribes in 304,[341] but continued to such
a degree that a hundred years later the rural voters generally still
resided in their own tribes.[342] In the last century of the republic
the personal tribe, emancipated from the local, depended solely on
inheritance and the will of the censors.[343]

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.[344]
Not all landowners were enrolled in the tribes; for Latin residents,[345]
freedmen,[346] widows and orphans,[347] all of whom might possess land,
lacked membership. Those proprietors, too, were excluded whom the
censors assigned to the aerarii as a punishment. Tribesmen were all the
other landowners—adsidui[348] et locupletes[349]—together with the male
descendants of military age under their potestas.[350]

Another object of the tribes, referred to Servius by our sources,
was the collection of taxes.[351] We know that they afterward served
this purpose; and the ancient writers, who could have had no direct
knowledge of the intentions of Servius 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_.[352] 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 subject 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 regular direct taxes on the citizens in
general. Every man equipped himself for war even after the introduction
of the phalanx;[353] doubtless at first the knights provided their
own horses;[354] and in short campaigns the soldiers carried their
provisions from their own farms.[355] 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.[356] Other early sources of revenue were tolls levied for the
use of harbors, boundaries, temples, bridges, roads, sewers, and salt
works.[357] 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.[358] Those men, also, who were
exempt from service because they possessed no land[359] 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 merchants. Sometimes the censors assigned to
it as a punishment 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.[360] 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 they were in a distinct list.[361] Whereas the
cives sine suffragio either wholly lacked the franchise, as the phrase
implies, or at most had but the right of the Latins,[362] the other
aerarii must have voted in the proletarian century.[363]

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 apportion,” because it was distributed
among the citizens in proportion to their ratable property.[364] We hear
of such a tax levied for ransoming the city from the Gauls[365] and
another for the building of a wall;[366] but the most common use was for
the payment of soldiers, hence the tributum was thought of primarily as
a war tax.[367] For this reason tributum came to be correlative with
stipendium.[368] It was not often imposed before the introduction of pay
in 406.[369] Even then it was not levied every year; it was sometimes
refunded when the condition of the treasury permitted; and it fell into
disuse after 167.[370] As it was imposed on those only who were liable
to military duty,[371] the tribe lists were followed in its collection,
and in this sense we may say that it was collected tributim.[372] The
work was done by state functionaries, as the tribe, so far as we know,
had neither fiscal officers[373] nor a treasury; and possessing no
property, it could not be held financially responsible.

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.[374] Cives sine suffragio were alone excepted.[375]
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,[376] whereas the landless were confined to those of
the city.[377] It was a permanent gain that henceforth tribal membership
was a test of perfect citizenship. 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,
for that would be tantamount to depriving him of the citizenship.[378]
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.[379]
Although the ordinary urban tribesmen were usually exempt from military
duty, the aerarii were required to serve, at times under especially
hard conditions,[380] and were not disqualified for office.[381] 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 valuation; and in order to treat all tribesmen alike, he must
have changed the terms of valuation of the landholders’ estates from
iugera to money.[382]

    Niebuhr, B. G., _Römische Geschichte_, i. 422-50, Eng. 200-12;
    Schwegler, _Römische Geschichte_, I. bk. xvii; Huschke, Ph.
    E., _Verfassung des Königs Servius Tullius_, ch. iii; Ihne,
    W., _History of Rome_, i. 62, 114; Nissen, H., _Templum_,
    144 ff.; _Italische Landeskunde_, ii. 503 f.; Beloch, J.,
    _Italischer Bund unter Roms Hegemonie_, ch. ii; Soltau, W.,
    _Altröm. Volksversammlungen_, 375-548; Meyer, E., _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; Neumann, K. J., _Grundherrschaft der röm.
    Republik_; Siebert, W., _Ueber Appius Claudius Caecus_;
    Mommsen, Th., _History of Rome_, bk. I. ch. vi; _Röm.
    Tribus_; _Röm. Staatsrecht_, iii. 161-98; _Abriss des röm.
    Staatsrechts_, 28-36; Marquardt, J., _Röm. Staatsv._ ii.
    149-80; Willems, P., _Droit public Romain_, 40 ff., 98 ff.;
    Mispoulet, J. B., _Institutions politiques des Romains_, i.
    37-42; _Études d’institutions Romaines_, 3-48; Lange, L., _Röm.
    Altertümer_, i. 501-22, and see index s. Tribus; Madvig, J. N.,
    _Verfassung und Verwaltung des röm. Staates_, i. 100-8; Herzog,
    E., _Geschichte und System der röm. Staatsverfassung_, i. 39,
    101 ff., 1016-31; Grotefend, C. L., _Imperium romanum tributim
    descriptum_; Kubitschek, J. W., _De romanorum tribuum origine
    ac propogatione_; _Imperium romanum tributim discriptum_;
    Pauly-Wissowa, _Real-Encycl._ i. 674-6: Aerarius (Kubitschek);
    682-4: Aes equestre (idem); 780-93: Ager (idem); iii. 1281-3:
    Caere (Hülsen); 2650 f.: Claudia (Wissowa); iv. 117 f.:
    Clustumina (Kubitschek); Daremberg et Saglio, _Dict._ i. 125:
    Aes equestre and hordearium (Humbert).




CHAPTER IV

THE CENTURIES AND THE CLASSES


The ancient authorities represent Servius Tullius as the founder 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[383]—

    “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 centuries
    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,[384] sometimes termed the “discriptio centuriarum,”[385]
sometimes “Commentarii Servi Tullii”[386] on the supposition that Servius
was the author. In reality it belonged to the Censoriae Tabulae[387]
of the period immediately following 269.[388] 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,[389] they could not have been described in the document.
The account of them found in our sources must, therefore, have been
supplied by antiquarian study.[390] The annalist who first used these
Tabulae in the censorial archives was Fabius Pictor.[391] Whether Livy
and Dionysius derived their account directly from him or through a later
annalist cannot be determined.[392] Though Cicero’s source may ultimately
have been the same, he seems to have depended largely on his memory 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.[393]

A brief analysis of this description, as presented by Livy or Dionysius,
will prove that it could not apply at the same time to an army and a
political assembly: (1) The century of proletarians, which formed a part
of the comitia, and which according to Dionysius was larger than all the
rest together, was exempt from military service.[394] (2) The unarmed
supernumeraries termed accensi velati must in their military function
have lacked the centuriate organization, as will hereafter be made
clear.[395] (3) The musicians and the skilled workmen who accompanied
the army must also be eliminated from the centuriate organization of
the army.[396] (4) The seniors, too, lacked the centuriate military
organization.[397] (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 voting century; and as
time progressed, the one group diverged more and more widely from the
other.[398]

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 military centuries constituted,[399] not of
the comitia.[400] This result harmonizes with the view of the ancient
writers that the comitia centuriata exercised no functions—hence we have
a right to infer that it had no existence—before the beginning of the
republic.[401]

The following sketch of the development of the Roman military 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 centuriata in the form described by Livy and Dionysius developed
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 former doubtless being derived in large
part from the latter.[402] The nobleman,[403] equipped in heavy armor,
rode forth in his chariot[404] 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),[405] as in Homeric
Greece[406] and among the early Europeans[407] before the development 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.[408] Yet in the Homeric
age of Greece some attempt was made to keep the fighters in line, and to
prevent the champions from advancing beyond it to single combat.[409]
A similar tendency to even, rhythmic movement may be inferred for
the Latin army.[410] The great innovators in this direction were the
Lacedaemonians, to whom the honor of inventing the phalanx is chiefly
due.[411] 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.[412] The depth varied as the occasion demanded;
it was not necessarily uniform throughout the line, but for Lacedaemon
eight may be considered normal.[413] The heavy-armed trooper carried
a large shield, which covered the entire body, a helmet, and greaves;
his offensive weapons were sword and spear.[414] Tyrtaeus mentions also
a coat of mail though not as an essential part of the equipment.[415]
The metal of their defensive armor was mostly bronze; their swords and
spear-points were probably iron, which the mines of Laconia abundantly
supplied.[416] 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,[417]
divided into companies of fifty or perhaps a hundred,[418] which were
made up of still smaller groups. The military age extended from the
twentieth to the sixtieth year.[419]

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,[420] 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.,[421] 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,[422] from one of these neighbors.


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 similar way, without
gradations of equipment. The complex system 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[423] was
originally limited to the first or highest census group, all the rest
being “infra classem.”[424]

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 Etruscan buckler[425] instead of the man-covering
Dorian shield. They were grouped in centuries,[426] forty of which
composed the classis in the fully developed phalanx.[427] The age of
service of the juniors, who alone fought in the field, extended from the
completed seventeenth to the completed forty-sixth year,[428] 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.[429] 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.[430] 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.[431] It is a curious fact
that some horsemen, Roman as well as Greek, were provided each with two
horses,[432] one for the warrior and the other for his squire,[433]
and that the mounted soldiers of Etruria were in these respects the
same.[434] A further resemblance between the earliest Greek and Roman
horsemen lies in the fact that they were noble.[435]

In their account of the growth of the mounted service during the regal
period the ancient authorities show great inconsistencies. 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.[436] Then
Tarquinius Priscus doubled the number, making six in all, and Servius
finally increased 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[437] at about 5000; hence the
assumption of 200 or even 300 knights to the century as early as the
reign of Romulus.[438] 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.[439] The idea of the sources
is that there came to be three troops of horsemen, furnished by the
tribes,[440] 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 accordingly after the tribes Ramnenses, Titienses,
and Lucerenses priores and posteriores respectively.[441] The priores
had each two horses, the posteriores one.[442] Hence the essential
difference 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.[443] As the centuriate organization of Servius
applied to the infantry, the cavalry remained little affected by it. The
six troops with their old names survived, 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.[444]
When with the institution of the republic the phalanx was split into
two legions, ten turmae of cavalry were assigned to each legion.[445]
As in historical time the number of horsemen to a legion did not exceed
300,[446] and as we have no reason to suppose 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 Servian 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,[447] (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 bearing on the organization of the
comitia centuriata. After a time[448] 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.[449] It numbered sixty
centuries of heavy infantry, composed of three grades which depended
upon the census rating.[450] 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.[451] 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.[452]

In making the levy the military tribunes selected the soldiers from
the lists of tribesmen, taking one tribe after another as the lot
determined.[453] The early Romans must have striven to distribute the
population as equally as possible among the tribes in order to render
them approximately equal in capacity for military 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.[454] 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 tribes from which to make the levy.[455] It was an
easy matter as long as the heavy troops were limited to the classis;[456]
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;[457] 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 inexpedient to make a corresponding enlargement of the
legion,[458] 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 proportionate
to its capacity.[459] 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),[460] 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
for the desperate economic condition of the poorer peasants of that epoch.

The proportions of the five ratings—20-15-10-5-2½ or 2—to be discussed
hereafter,[461] 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 direction, should be closely
connected with the institution of the censorship in 443 or 435.[462] 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),[463] the classis comprised four
ranks (4000), the second and third ratings one rank each, making in
all six ranks of heavy troops (6000).[464] Twenty centuries could be
drawn from the two ratings of light troops to complete the eight ranks
when needed.[465] But the Romans undoubtedly exercised the same good
judgment as the Lacedaemonians in varying their formation to suit the
emergency;[466] 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.[467] The explanation already suggested, that the state
supplied the deficiency in equipment,[468] would greatly simplify the
case, for there would then exist no need of arraying the census groups in
successive lines. Whatever may have been the tactic arrangement, it did
not continue long, for soon after the introduction of regular pay, about
400 B.C.,[469] 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 accompanied 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.[470] These men could not have been organized
in centuries,[471] for they were drawn up in the rear behind the
light troops; they extended along the entire breadth of the army,[472]
and must have greatly exceeded one hundred or even two hundred. The
musicians,[473] too, who accompanied the army were not grouped in two
centuries, for they were distributed throughout the army.[474] There is
no reason for assuming exactly two hundred musicians[475] or exactly
two hundred workmen,[476] or for supposing that any of the men of this
description were organized 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 system. A
military century, as the name indicates, must have contained a hundred
men.[477] But in any static population there are three times as many men
between seventeen and forty-six as between forty-six and sixty[478]—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 active service.[479] 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,[480] 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 centuries
or cohorts, their enrolment in these companies is especially mentioned,
our conviction that the senior centuries did not belong to the original
Servian organization grows into a certainty.[481]


V. _Conclusions as to the Servian and Early Republican Organizations;
Transition to the Manipular Legion_

In our search for the Servian and post-Servian schemes of military
organization we found it necessary to eliminate from the discriptio
centuriarum all the centuries of pedites with the exception of the
juniors. But even a military century of juniors could not have remained
identical with a voting century; for the 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 hundred men each. In the four lower classes each century contained
as many men as the entire first class;[482] and individuals constantly
shifted from one class to another as their several properties increased
or diminished.[483] It is a mistake, therefore, to think of the army as
identical with even the junior centuries of the comitia.[484] 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 physically 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.[485]

The conclusion as to the strength of the army in the first years of the
republic, before the latter had acquired any considerable accession of
territory, corresponds closely with a moderate estimate of the population
under the conditions then existing. The area of the state was about 983
square kilometers (equivalent to 379.5 sq. mi. or 242,899 acres).[486]
Estimating the population of this agricultural community at its maximum
of sixty to the square kilometer, we should have less than 60,000 for the
entire area.[487] The number of men from seventeen to sixty, the Roman
military age, should be about thirty per cent of the population[488]—less
therefore than 18,000. If the ratio of juniors to seniors was about three
to one,[489] 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 allowance for several hundred
supernumeraries,[490] we should then have no more than enough juniors to
fill the eighty-four centuries 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 influence of the
Gallic invasion.[491] The introduction of pay, about 400 B.C., as has
been said,[492] broke down the distinction of equipment based on degree
of wealth, and not long afterward, probably in the time of the Samnite
wars, the phalanx gave way to the manipular legion, which reached its
full development in the Punic wars.[493]


VI. _The Five Classes and their Ratings_

Though originally denoting the men of the first rating, who possessed the
fullest equipment,[494] the term classis with an explanatory adjective
came to apply to the entire army[495] or to its component parts.[496] The
plural “classes” came finally to mean the five census groups, represented
by the five timocratic gradations 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, 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.[497] 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 notwithstanding the new
development of the noun from which it is derived, and especially that the
early sense of the terms classicus 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 111,[498] 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 269.[499]

Before the censorship of Appius Claudius Caecus, 312, military service
within the census ratings was based on the possession of land, and
the gradations of equipment, while they lasted, must therefore have
been determined by the size of the estate reckoned in iugera.[500]
Huschke[501] rightly inferred that the number 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, 2½ or 2 iugera
as the respective minimal holdings of the five divisions. Although
absolute certainty is unattainable, most scholars accept his conclusions
as probable.[502] 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 centuriata. 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.[503]

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 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
circulation were henceforth reckoned as sesterces, which now became
the unit of value.[504] Two and a half sextantarian asses made a
sesterce, and four sesterces made a denarius.[505] The _as_ continued
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, 11,000.[506] 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.).[507] But
the ratings 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[508] 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 corresponded 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.[509]
Several variations affecting the highest and lowest classes are offered
by other writers. Dionysius[510] states the appraisement of the fifth
class at 12½ minae, which would be 12,500 asses. The usual explanation is
that he is dealing in round numbers without especial regard to accuracy,
for which reason Livy should be given the preference. It is doubtful
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,[511] 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.[512] The
limit of 400 drachmas given by Polybius[513] proves a lowering of the
minimal rating between 269 and the publication of his history.[514] 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,[515] the limit which he mentions would be 4000 asses. Cicero
states the minimal limit at 1500 asses,[516] and a still lower sum of
375, mentioned by Gellius,[517] 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,[518]
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
proletarians.[519] The limit of 375 asses, on the other hand, was far
below the fifth class, and had nothing to do with it.[520] The relation
of these numbers to one another may be summarized as follows: 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 1500-4000 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[521] states
it at 110,000 asses, which may be a copyist’s error for 100,000 or
for 120,000; the estimate of Paulus Diaconus[522] is 120,000 and of
Gellius[523] 125,000. If the manuscripts have correctly preserved these
numbers, they may represent computations based on a varying number of
iugera, from twenty-two to twenty-five[524] at the rate of 5000 asses a
iugerum—a valuation 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,[525] who states
that those appraised at 10,000 drachmas wore the cuirass—according to
Livy[526] and Dionysius,[527] the distinctive equipment of the first
class.[528] In the same age the Voconian law, 169, provided that a
man registered by the censors as worth 100,000 asses or more should
not bequeath his property to a woman.[529] While speaking in favor
of the measure the elder Cato expounded the distinction between the
classici and those who were “infra classem.”[530] Strictly following
Cato’s definition, Gellius[531] 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.[532] The sum of 100,000
sesterces, in place of asses, represented by later writers[533] as
the one fixed by this law, is due either to a late interpretation or
to an amendment.[534] The minimal qualification of the first class
must therefore have continued unchanged from 269 to the passing of the
Voconian law, 169, and the composition of the _History_ of Polybius.[535]
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 interest in bringing about. Further depreciation
in the weight of the _as_, by the reduction to a half ounce through the
Papirian law of 89,[536] 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 Dionysius already
considered, no reference is made to the valuation of the intermediate
classes, unless it be a passage in Livy[537] 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[538] 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.[539]


VII. _Belot’s Theory as to the Ratings_

Notice must be taken of a theory proposed by Belot,[540] that at the time
of the First Punic War, owing to an economic revolution 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 respectively.[541] 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 found in the
sources. For example in 214 the government ordered[542] 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 immediately appear.
The object of the order issued by the government in 214 was to provide
crews for the fleet of that year. Although the hundred and fifty ships
to be manned[543] 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,[544] we should have 56,250 men for the
entire fleet. But according to Belot[545] 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,[546] 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 154,000 sailors furnished by
the knights to obtain the whole number 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,[547]
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 property, 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 misdemeanors which the
rich and powerful were wont to commit.[548]


VIII. _The Post-Servian Equites_

The classes, as developed after Servius, have now been considered
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,[549] 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.[550] He was not paid the money in advance, but was given
security for the required sums,[551] 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[552]
assigns their institution to Tarquinius Priscus, Livy[553] to Servius,
Plutarch[554] 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.[555] It was afterward decided to
deduct the aes hordearium, probably also the aes equestre, from his
pay.[556] 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[557] came forward and offered to serve
with their own horses.[558] This is the first known instance of voluntary
equestrian duty, doubtless often repeated at crises during the remainder
of the republican 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,[559] and most
probably their years of voluntary service were counted in with their
regular duty in making up the required number.[560] 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 Cannae. Their horses were taken from them, their campaigns
equo publico were not counted to their credit, but they were required
to serve ten years equis privatis.[561] 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.[562] It should also be said that
the injustice of furnishing some with horses and of compelling others to
go to war at their own expense, unless by way of punishment, was contrary
to the spirit of the constitution. This conclusion is supported by the
elder Pliny’s[563] 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 regular 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,[564] 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.[565] The
military force could not have been doubled before the incorporation of
the Veientan territory early in the fourth century;[566] most probably
the enlargement belongs to still later time. The increase in the
infantry required a corresponding enlargement of the mounted service. At
least twelve hundred equites were henceforth required for active duty.
Making allowance for reserves and ineffectives, 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 remained 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.[567] After
the war with Hannibal the state, drained of men and money, allowed the
cavalry to dwindle.[568] Viewing this condition with alarm, the elder
Cato[569] 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 consisting of 5200
foot and 300 horse.[570] Under Augustus there were times when 5000
equites[571] equo publico took part in the parade which he revived.[572]
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 on this point shows that they
lacked definite information.[573] 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.[574] For a time the census was that of the first class.[575] In
214 it was still 100,000 asses, or not much above, as has already been
proved.[576] In the late republic and under the emperors the minimal
rating was 400,000 sesterces.[577] When it was raised to this amount is
unknown.

    I. THE EARLY GRAECO-ITALIAN PHALANX: Busolt, _Griechische
    Geschichte_, i, ii (see Contents); Bauer, A., _Griechische
    Kriegsaltertümer_; Droysen, H., _Kriegsalterthümer der
    Griechen_, in Hermann’s _Lehrb. der griech. Antiquitäten_,
    ii. 1-74; Gilbert, _Constitutional Antiquities of Sparta and
    Athens_ (see Index and Contents); Lammert, E., _Geschichtliche
    Entwickelung der griech. Taktik_, in _N. Jahrb. f. kl. Alt._
    iii (1899). 1-29; _Die neuesten Forschungen auf antiken
    Schlachtfeldern im Griechenland_, in _N. 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; Fröhlich, F., _Beiträge zur
    Kriegsführung und Kriegskunst der Römer zur Zeit der Republik_;
    Schiller, _Röm. Kriegsaltertümer_, in Müller’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 Verhältniss von Heer und Staat in
    der röm. Republik_, in _Hist. Zeitschr._ vii (1862). 133-58;
    Liers, H., _Kriegswesen der Alten_; Delbrück, _Geschichte
    der Kriegskunst im Rahmen der politischen Geschichte_, bks.
    i, iv, best authority; _Die römische Manipulartaktik_, in
    _Hist. Zeitschr._ N. F. xv (1884). 239-64; Niese, B., _Ueber
    Wehrverfassung, Dienstpflicht, und Heerwesen Griechenlands_,
    ibid, xcviii (1907). 263-301, 473-506; Arnim, H., _Ineditum
    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 the source of
    the _Ined Vat._; Bruncke, H., in _N. Philol. Rundschau_ (1888)
    40-4; Müller-Deecke, _Etrusker_, i. 364-72; Müller, J. J.,
    _Studien zur röm. Verfassungsgeschichte_, in _Philol._ xxxiv
    (1876). 96-136; Helbig, _Sur les attributs des saliens_, in
    _Mémoires de l’académie des inscriptions et belles-lettres_,
    xxxvii² (1905). 205-76; on the same subject, in _Comptes rendus
    de l’acad._ etc. 1904. ii. 206-12.

    II. THE MILITARY AND POLITICAL CENTURIES AND CLASSES: Niebuhr,
    B. G., _Röm. Geschichte_, i. 451-511, Eng. 197-236; Schwegler,
    _Röm. Geschichte_, I. bk. xvii; Huschke, Ph. E., _Verfassung
    des Königs Servius Tullius_, especially chs. iv, vii, viii;
    Peter, C., _Epochen der Verfassungsgeschichte der röm.
    Republik; Studien zur röm. 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; _Röm. Tribus_,
    59-72, 121-143, 160 ff.; _Röm. Staatsr._ iii. 240 ff.; _Röm.
    Forschungen_, i. 134-40; Willems, P., _Droit public Rom._
    40, 43, 84-92; Mispoulet, J. B., _Institutions politiques
    des Romains_, i. 203-7; Lange, L., _Röm. Altertümer_, i.
    522-66; _Cicero über die servianische Centurienverfassung_,
    in _Kleine Schriften_, i. 227-234; Herzog, _Geschichte und
    System der röm. 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 Centurienverfassung des Servius Tullius_; Genz, H.,
    _Servianische Centurien-Verfassung_; Soltau, W., _Altröm.
    Volksversammlungen_, 229-96; Ullrich, J., _Centuriatcomitien_;
    Le Tellier, M., _L’Organisation centuriate et les comices par
    centuries_, ch. i; Hallays, A., _Les comices à Rome_; Morlot,
    É., _Les comices électoraux_, ch. iii; Moye, M., _Élections
    politiques sous la république Rom._ chs. iii, iv, vii; Müller,
    ibid.; Neumann, K. J., _Grundherrschaft der röm. Republik,
    die Bauernbefreiung, und die Entstehung der servianischen
    Verfassung_, speculative but very suggestive; Greenidge, A. H.
    J., _Roman Public Life_, 65-76; _Legal Procedure of Cicero’s
    Time_, 307 ff.; Schott, P. O., _Röm. Geschichte im Lichte
    der neuesten Forschungen_; Smith, F., _Röm. Timokratie_;
    Pardon, _De aerariis_; Maue, H., _Der praefectus fabrum_;
    Bloch, A., _Le praefectus Fabrum_, pt. ii, in _Musée Belge_,
    ix (1905). 352-78; Babelon, E., _Monnaies de la république
    Rom._ I. pts. i, ii; _Traité des monnaies Grecq. et Rom._
    i; _Origines de la monnaie_; Samwer-Bahrfeldt, _Geschichte
    des alten röm. Münzwesens_; Hill, G. F., _Greek and Roman
    Coins_, 45-9; Regling, _Zum älteren röm. und ital. Münzen_,
    in _Klio_, vi (1906). 489-524; Belot, É., _De la révolution
    économique et monétaire ... à 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 (idem);
    _Capite censi_, iii. 1521-3 (Kübler); _Census_, iii. 1914-24
    (Kubitschek); _Centuria_, iii. 1952-62 (Kübler, Domazewski,
    Kubitschek); _Classis_, iii. 2630-32 (Kübler); _Collegium_,
    iv. 380-480 (Kornemann); _Comitia_, iv. 679-715 (Liebenam);
    _Cornicines_, iv. 1602 f. (Fiebiger); _Denarius_, v. 202-15
    (Hultsch); articles in Daremberg et Saglio, _Dict.: Accensus_,
    i. 16 ff. (Humbert and others); _As_, i. 454-64 (Lenormant);
    _Census_, ii. 1003-17 (Humbert); _Centuria_, ii. 1017 (idem);
    _Classis_, i. 1224 f. (idem); _Comices centuriates_, s.
    _Comitia_, ii. 1378 ff. (idem); articles in Ruggiero, E.,
    _Dizionario epigrafico: Accensus_, i. 18-21; _Aerarius_, i.
    311-3; _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, _Thes. ling. lat. ep._ 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, _Röm. Alt._ i. 444-7, 523,
    547-51; _Recension über K. Niemeyer, De equitibus romanis
    commentatio historica_, in _Kleine Schriften_, i. 113-37;
    Mommsen, _Röm. Staatsr._ ii. 397-400; iii. 106-9, 253-62;
    Madvig, J. N., _Verfassung und Verwaltung des röm. Staates_,
    i. 155-82; Mispoulet, J. B., _Études d’institutions Rom._
    151-226; Bloch, G., _Origines du sénat Rom._ 46-95; Marquardt,
    J., _Historiae equitum romanorum libri iv_; Gomont, M. H.,
    _Chevaliers Rom. depuis Romulus jusqu’à Galba_; Niemeyer, K.,
    _De equitibus romanis commentatio historica_; Rubino, J.,
    _Ueber das Verhältniss der VI Suffragia zur röm. Ritterschaft_,
    in _Zeitschr. f. d. Altertumswiss._ iv (1846). 212-39;
    Bertolini, C. I., _I celeres ed il tribunus celerum_; Belot,
    É., _Histoire des chevaliers Rom._ 2 vols.; Gerathewohl,
    H., _Die Reiter und die Rittercenturien zur Zeit der röm.
    Republik_, valuable; Kubitschek, J. W., _Aes equestre_, in
    Pauly-Wissowa, _Real-Encycl._ i. 682-4; Kübler, _Equites
    Romani_, ibid. vi. 272-312; Martin, A., _Equites_ (Greek), in
    Daremberg et Saglio, _Dict._ ii. 752-71; Cagnat, R., _Equites_
    (Roman), ibid. ii. 771-89; Helbig, W., _Observations sur
    les ἱππεῖς Athéniens_, in _Comptes rendus de l’académie des
    inscriptions et belles-lettres_, 1900. 516-22; _Les ἱππεῖς
    Athéniens_, in _Mémoires de l’acad._ etc. xxxvii¹ (1904).
    157-264; _Die ἱππεῖς und ihre Knappen_, in _Jahreshefte des
    österr. archäol instituts_, viii. 2. 185-202; Peterson, E., _Zu
    Helbigs ἱππεῖς_, etc., ibid., 125 f.; Helbig, _Zur Geschichte
    des röm. Equitatus, A. Die Equites als berittene Hopliten_, in
    _Abhdl. d. bayer. Akad. d. Wiss._ xxiii (1905). 267-317; _Die
    Castores als Schutzgötter des röm. Equitatus_, in _Hermes_, xl
    (1905). 101-15; _Contribution à l’histoire de l’equitatus_, in
    _Comptes rendus de l’acad. des inscriptions et belles-lettres_,
    1904. ii. 190-201; Pellegrini, G., _Fregi arcaici etruschi
    in terracotta_, etc., in Milani, L. A., _Studi e materiali
    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.[578] 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.[579] 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;[580] and in early
times a Roman always resorted to them before beginning any important
business.[581] Though it was permissible to consult any deity,[582] the
greatest weight attached to the approval of the supreme god Jupiter.[583]

The plebeians, who as long as they were excluded from the magistracies
were necessarily debarred from the auspicia publica, 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 performance of any other sacred rite in private plebeian
houses. Not only is it stated that all had a right to auspicate,[584]
but the formula for summoning troops given by Cincius[585] implies that
the soldiers, who were mainly plebeian, were accustomed to perform the
rite. We find accordingly the elder Cato, a plebeian, attending to the
ceremony in his own home.[586] The patricians, 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.[587]
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 patrician why a plebeian could not be made
consul, the reply was that no plebeian had the auspices, reiterating that
the decemvirs had forbidden conubium to prevent the disturbance of the
ceremony by uncertainty of birth.[588] Reference might here be simply
to the auspicia publica, with which alone the consul was concerned.
However this may be, the patrician claim was indignantly repudiated
by the plebeians, and the historian can say no more than that it was
“perhaps true.” Another passage from Livy usually interpreted in support
of the theory 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 auspices, 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.”[589] This passage is perfectly intelligible
to one who bears in mind that in the late republic private auspices had
disappeared,[590] 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.[591] In the quotation 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.[592] This claim they had the effrontery to make despite the fact
that plebeian consuls had been taking public auspices for more than
sixty years. In the pride of their blood they claimed that theirs alone
were strictly legal (iustum). Notwithstanding such partisan assertions
the facts thus far adduced lead unmistakably to the conclusion that
the plebeians equally with the patricians enjoyed the right to private
auspices.[593]


II. _Auspicia Publica Impetrativa_

The right to public auspices belonged primarily to patrician
magistracies[594]—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 appointments to such offices were
auspicated;[595] and their incumbents were expected to seek the previous
approval of Jupiter for every important act of their administration.[596]
The king, interrex, dictator, consuls, praetors, and censors had the
auspicia maxima; the others the minora.[597] 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.[598] For the exercise of a function properly belonging to a
magistracy, the incumbent performed the ceremony at his own will and
pleasure, unless expressly forbidden by a superior;[599] 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.[600] 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.[601] It seems probable that the tribunes originally did not
have the right as they were not magistrates; but when they came to be
so considered, they acquired the auspicium. All magistrates—necessarily
including the tribunes—who convoked the senate had previously to perform
the ceremony;[602] Cicero[603] seems to include the tribunes among
the magistrates who had the auspicium; and as further proof the very
expression “patriciorum (magistratuum) auspicia”[604] 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.[605]

For assistance in auspication the magistrate summoned any person he
pleased, who was rarely if ever a public augur.[606] An augur,[607]
whether private or official, was a person who knew how to hold and to
interpret auspices.[608] A college of public augurs[609] 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.[610] The members of the college were
neither magistrates[611] nor prophets. They were rather the wise,[612]
experienced[613] keepers and expounders of a sacred science and
art[614]—the “interpreters of Jupiter All-Great and Good.”[615] Having
to do with religion, they were sacerdotes, like the pontiffs, though not
offerers of sacrifice (flamines).[616] 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.[617] In attending to such
duties (auguria) only did they exercise their right to the auspices.[618]
In a dependent though far more influential position they acted as the
professionally skilled advisers and assistants of the magistrates in
all matters of peace and war.[619] If a magistrate was not himself an
augur,[620] 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 magistrate to whom it belonged or the senate could
refer the case to the college of augurs, which thereupon gave an opinion
in the form of a decree. The senate then acted on the matter according
to its judgment.[621] 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.[622]
These considerations account for the great importance attaching to the
presence of augurs in the comitia—a subject to be treated in another
connection.[623]

The service of augurs was most needed in establishing the terrestrial
templum[624]—a carefully marked out, oriented spot which the magistrate
occupied while performing the rite.[625] Whereas the commander of an
army generally made use of chicken auspices (signa ex tripudiis), which
did not require their assistance,[626] they were doubtless always
called upon to institute templa in or near the city.[627] 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,[628] beyond which, probably extending to the first
milestone,[629] lay a zone termed ager effatus,[630] whose boundaries
were marked by cippi.[631] 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, Gabinus, peregrinus,
hosticus, and incertus.[632] For the comitia the two inner regions
were alone important: (1) 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,[633] or more strictly the brook
Petronia,[634] 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 ceremony that
the word auspicium is derived.[635] Legend accordingly asserts that
Romulus founded the city on the Palatine under the auspices of twelve
vultures.[636] 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 thunder.[637] 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
undertakings during the entire day.[638] The effect of heavenly signs on
assemblies of the people, however, was peculiar. Not only were comitia
and contiones interrupted by storms;[639] not only was it impious to hold
an assembly while it was lightning or thundering,[640] but even while the
magistrate was auspicating at daybreak, 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.[641] Some favorable comitial sign the
magistrate was supposed to perceive,[642] 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, dedicated for all time;[643] for assemblies in the
comitium the rostra, also a templum;[644] and for the comitia centuriata
the president’s platform in the Campus Martius.[645] Not only patrician
magistrates but also tribunes of the plebs occupied templa in transacting
business with the people.[646]

Between midnight and morning[647] on the day of assembly the magistrate
repaired to the templum.[648] There, placing himself on a solid[649] seat
at the door, usually facing eastward, he watched the heavens (spectio).
Meanwhile he first asked the attendant, who always sat near,[650]
whether there was silence.[651] If the answer was affirmative, he
prayed Jupiter for a sign, which he described in a formula termed legum
dictio,[652] whereupon the attendant declared he saw it.[653] In case
of non-appearance of the sign or of a disturbance of the observation,
the auspication was deferred to another morning.[654] Before the time
of Cicero, however, the ceremony had been so reduced to a pretence as
practically to eliminate the possibility of failure.[655]

Both curiate[656] and centuriate[657] 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,[658] plebeian magistrates (tribunes and
aediles of the plebs) did not.[659]

As to whether contiones were auspicated we are not clearly informed. The
question concerns those only which were held by patrician magistrates.
The auspication of comitia necessarily extended to the contio immediately
preceding.[660] It is known, too, that the censors auspicated the
lustral gathering of the centuries,[661] hence we may infer that
magistrates and sacerdotes were accustomed to take auspices for formal
religious assemblies.[662] With these exceptions contiones were doubtless
held without auspices by patrician as well as by plebeian magistrates.


III. _Auspicia Publica Oblativa_

If Jupiter had approved the holding of an assembly, the magistrate
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 sanctioned; and the warning omen might come at
any time before the act was completed. Sometimes the magistrate himself
discovered, or for the accomplishment of his purpose pretended to
discover, the evil omen. When for instance Pompey was holding 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.[663] Sometimes the magistrate
was informed of the omen by (1) a private person, (2) an augur, or
(3) another magistrate. In the first two cases the report was termed
nuntiatio, in the third obnuntiatio.[664] Information received from a
private citizen the president could credit or not as he saw fit, or he
could declare it irrelevant;[665] 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.[666] A
case of epilepsy, by vitiating the business of the assembly, required
an adjournment; and for that reason the malady was called the comitial
sickness.[667] 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 another. 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.[668]

Although the augurs had neither the auspicia impetrativa nor the right
to watch the sky for unfavorable omens,[669] they were competent to
report (nuntiatio) unexpected oblativa to the magistrates.[670] Their
object in attending the comitia accordingly was not only to assist the
president with their special knowledge,[671] but also to witness the
religious legality of the proceeding. In the latter function the augur
derived great influence[672] 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.[673] For this reason witnessing
augurs were granted the privilege of adjourning the assembly in case they
perceived unfavorable omens.[674] Cicero[675] describes in detail such an
adjournment of an electoral assembly of centuries: “Behold the day for
the election of Dolabella! The prerogative century is drawn by lot, he
(the augur) remains quiet. The vote is announced, he is silent. The first
class is called and the announcement 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 certainty predict an evil omen,[676] it was evident
that Antony, acting merely as augur, made a fictitious report.

Augurs were always present at meetings of the curiae,[677] of the
centuries,[678] and of the tribes under the presidency of a patrician
magistrate.[679] 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[680] 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;[681] 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,[682] 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.[683] A consul for instance could prevent a quaestor from
scanning the heavens on any particular day; and the senate on the rare
occasions when it felt itself sufficiently strong, suspended for a
particular act of the assembly the right of all magistrates to receive
and to announce unfavorable omens.[684] In the absence of senatorial
interference it remained possible for any higher magistrate 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 obnuntiating against a colleague[685] and against the pontifex
maximus,[686] a praetor against a tribune of the plebs,[687] and a
tribune against a consul[688] or a censor,[689] as well as against a
colleague.[690]

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.”[691] If accordingly a
magistrate announced that he intended to scan the heavens on the day
appointed for an assembly, 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 declaring
his intention to observe the sky on all comitial days.[692] Strictly the
observation had to be made and reported before the assembly met. “Can
any one divine beforehand,” Cicero[693] 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 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.[694]

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 business in assembly.[695]

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[696] passed
about 150.[697] What features of these statutes were new has not been
precisely determined. It is certain, 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
magistrates 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 reasonable to conclude
that the Aelian and Fufian statutes gave the patrician magistrates the
obnuntiatio against that body.[698] It was equivalent to a power of veto,
which the aristocracy could now exercise upon tribunician legislation,
hence Cicero[699] regards the two statutes as most holy[700] means of
“weakening and repressing the fury of the tribunes,” and as the “surest
protection of the commonwealth.”[701] Notwithstanding the opinion of
Lange,[702] that the obnuntiatio was restricted to legislation, it
seems clear from the words of Cicero,[703] 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 Saturninus, and the tribunes were again acting
independently of the senate as in the early history of their office,
optimates and populares, 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 disintegration.
Vatinius, tribune of the plebs in 59, had the boldness utterly to
disregard these statutes;[704] and in 58 the tribune Clodius repealed
them in so far as they affected legislation,[705] whereas for elections
the obnuntiatio still remained in force.[706] The misuse of auspices for
political purposes dates back, according to Livy,[707] to the beginning
of the Samnite wars. 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.[708] 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.[709]

    Rubino, J., _Untersuchungen über röm. Verfassung und
    Geschichte_, 34-106; Nissen, H., _Das Templum_; Mommsen,
    _Röm. Staatsrecht_, i. 76-116; Marquardt, J., _Röm.
    Staatsverwaltung_, iii. 397-415; Lange, L., _Röm. Altertümer_,
    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 röm.
    Staatsverfassung_, 621-30, see also index s. Augures,
    Auspicien; Müller-Deecke, _Etrusker_, ii. 114-27; Gilbert,
    O., _Geschichte und Topographie der Stadt Rom im Altertum_, 3
    vols., index s. Auguraculum, Augures; Wissowa, G., _Religion
    und Kultus der Römer_, 450-60; _Augures_, in Pauly-Wissowa,
    _Real-Encycl._ ii. 2313-44; _Auspicium_, ibid. ii. 2580-7;
    Aust, E., _Religion der Römer_, index s. Auguraculum,
    Augurn, Auspicia, etc.; _Iuppiter Elicius_, in Roscher,
    _Ausführliches Lexikon der griech. und röm. Mythologie_, ii.
    656-61; Bouché-Leclerq, A., _Histoire de la Divination dans
    Antiquité_, iv. 134-285 (sources and modern literature, p. 180
    f.); _Augures_, in Daremberg et Saglio, _Dict._ 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., _Il Culto privato di Roma
    antica_, i. 152 ff., 232 ff.; Valeton, I. M. J., _De modis
    auspicandi Romanorum_, in _Mnemosyne_, 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 Romanis_, ibid. xx (1892). 338-90; xxi. 62-91, 397-440;
    xxiii. 15-79; xxv. 93-144, 361-85; xxvi. 1-93 (papers in the
    last two vols. are on the pomerium); Luterbacher, F., _Der
    Prodigienglaube und Prodigienstil der Römer_, 2 ed.; Wülker,
    L., _Die geschichtliche Entwickelung des Prodigienswesens bei
    den Römern_; Willoughby, W. W., _Political Theories of the
    Ancient World_, ch. xv.




PART II

THE ASSEMBLIES

ORGANIZATION, PROCEDURE, AND FUNCTIONS, RESOLUTIONS, 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,[710]
quoted by Gellius,[711] “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 discussion,
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 assemblies 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 adhered 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 comitia and concilium is not a difference between the
whole people and a part of the people.[712]

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);[713] 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, 11: (plebeian 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. 11; 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 consular 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.[714] 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).

    (3) i. 36. 6: “Auguriis certe sacerdotioque augurum tantus
    honos accessit, ut nihil belli domique postea nisi auspicato
    gereretur, concilia populi, exercitus vocati, summa rerum, ubi
    aves non admississent, dirimerentur.”

    (4) ii. 7. 7: “Vocato ad concilium populo” (representing the
    consul as calling the people to an assembly).

    (5) iii. 71. 3: “Concilio populi a magistratibus dato” (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 discussed. 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[715] 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 example (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[716] 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 contionem escendit”), and afterward laws
were passed on the subject of which he treated in his speech—evidently
by the same assembly; hence the concilium populi here mentioned was
something 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 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.”[717] The passage refers to a meeting
of the Ardeates 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.[718] 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.[719]

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 Mommsen[720] 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 assumes to have been free
from the auspices.[721] He concludes, therefore, that it denotes the
“patricio-plebeian” tribal assemblies.[722] 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 required 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[723] 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 assemblies 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. 11—the concilium populi
which condemned Marcus Manlius, example (6), p. 121. Evidently this
was the centuriate assembly, which alone 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. 1. 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, 11;
    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. 1; 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. 1; xxxix. 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; Thessalians,
    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. 6); and twice, at Capua, we hear of a
plebis concilium; Livy xxiii. 4. 4; xxvi. 16. 9. From the frequency of
the first-mentioned 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 relation 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; iii. 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 Lucius Julius Caesar’s[724] 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 centuriate gathering (_Cat._ 24, 26;
_Iug._ 36, 44), in _Iug._ 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”)[725] 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 support of the
definition of Laelius. Following Berns,[726] they say Cicero has violated
the rule but once, _Att._ i. 1. 1, in which occurs 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—having 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.”[727]

The tribunician comitia are the only comitia concerned in Cato’s
transaction. Again in _Att._ ii. 23. 3 (“It is of great interest 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”)[728] 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.[729] Another important passage is
_Sest._ 51. 109:

    “I come now to the comitia whether for electing magistrates or
    for enacting 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 compliance 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?”[730]

The law which Cicero dwells on with such bitterness at the beginning
of this passage and recurs to at the end is the tribunician 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 persons except by the comitia centuriata. For when
    the people are organized 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 insisted 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 privilegia.
    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 concerning that same
    person against whom some slaves and robbers declared they had
    passed a decree.”[731]

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[732] can make this citation refer to his “patricio-plebeian”
comitia tributa no one can possibly explain. 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 assembly as comitia. In many passages comitia
seems to include all the elections of the year, of plebeian as well as
of patrician magistrates; for the elections were usually held in the
same season, and could not well be separated in thought.[733] 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.”[734]
    Cf. also 54. 115; 59. 125.

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 following
expression; _Rep._ i. 33. 50: “The nobles who have arrogated to
themselves this name, not with the consent of the people, but by their
own comitia.”[735] 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. Vell.
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. 16 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 condition, but by
    the favor of sortition, to usurp the liberty of all.”[736]

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.[737] 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
distinction 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 himself about such
unpractical matters.[738]

From the evidence as to Cicero’s usage given above, we must draw the
following conclusions:

    1. 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. 13 (3). 13: “Nihil est enim illi principi
deo ... acceptius quam concilia coetusque hominum iure sociati, quae
civitates appellantur (Nothing is more agreeable 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, concilia, 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
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 sentiments 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.[739]

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 republic.[740] 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 discussion. 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.[741] 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:

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 (applied to the
meeting of a collegium); Livy i. 21. 3 (Camenarum concilia); ii. 38. 4;
xxvii. 35. 4.[742]

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 organized assembly.

(_a_) Concilium is the more general term in Cicero, _Fin._ iii. 19. 63;
ii. 24. 77; _Rep._ vi. 13 (3). 13.[743] In all these citations concilia,
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 intercessum 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.[744]

(_a_) Comitia is used in its most general sense in Cicero, _Div._ i. 45.
103; ii. 18. 42 f.; 35. 74; _Tusc._ iv. 1. 1.[745]

V. (_a_) Applied to foreign institutions, comitia always designates
electoral assemblies; (_b_) as at Rome, concilia are always legislative
or judicial assemblies.[746]

(_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. 1; 26. 16; 27. 1; xxxii. 25. 2; xxxiii.
    27. 8; xxxiv. 51. 5.

(_b_) 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.[747]

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; Sall. _Cat._ 24; _Iug._ 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.
    1; 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; _Planc._ 3. 7, 8;
    4. 9, 10; 6. 15; 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. 1. 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; 11. 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, 11; 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, 14; vii.
    9. 4; 17. 10, 13; 19. 5; 21. 1; 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. 1, 6; xxxviii. 35. 1; 42. 1, 2, 4;
    xxxix. 6. 1; 23. 1; chs. 32, 39, 40, 41, 45; xl. 18, 37, 45,
    59; xli. 6, 8, 14, 16, 17, 18, 28; xlii. 9, 28; xliii. 11, 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; _Sest._ 30. 65; 34. 73; 51.
    109; _Leg._ iii. 19. 45; _Rep._ ii. 31. 53; 35. 60; 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. 11; xlii.
    30; xliii. 16; xlv. 35.

As these lists are nearly exhaustive, they represent substantially the
relative frequency of the two uses of comitia.

VII. (_a_) Rarely is either the centuriate assembly or the so-called
patricio-plebeian tribal assembly termed concilium; (_b_) 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. 11.[748] (_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.

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 therefore 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.[749]

As a non-political gathering is not made up of groups—similar to the
voting divisions of the national assemblies—it cannot be called comitia.
Concilium is the only term appropriate to it; hence we have the second
general use of the two words.[750]

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 assemblies organized in
voting divisions. This is the third general use.[751]

For explaining the four remaining uses it is necessary to inquire
into the fundamental meaning of concilium. Although the etymology is
uncertain, probability favors the ancient conjecture which derives
it from “con-calare.”[752] People could only 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.[753] In the manuscripts and editions it is
frequently interchanged with consilium,[754] and in the sources these
two words are often placed in punning juxtaposition.[755] Possibly their
close resemblance, 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.[756] With this meaning the word could not designate an electoral
assembly, which did not allow discussion;[757] it was restricted to
legislative and judicial assemblies, in which the voting was preceded by
deliberation. This is the fourth use.[758]

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 assemblies referred to by Roman writers was
concerned with international affairs—was legislative—and hence foreign
assemblies are usually termed concilia.[759] This consideration accounts
for the fifth general use.[760]

The sixth[761] 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[762] 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. Furthermore the assembly over which
the tribunes presided was far more deliberative than any other. Hence
the centuriate assembly became _the_ comitia, and the plebeian tribal
assembly _the_ concilium.[763]

The cause of the error into which Laelius[764] fell is now apparent.
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 discussion 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.

A result of this inquiry is to banish the expressions “concilium 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.[765] 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., _Röm. Forschungen_, i. 129-217; Berns, C., _De
    comitiorum tributorum et conciliorum plebis discrimine_;
    Soltau, W., _Altröm. Volksversammlungen_, 37-46; Humbert,
    G., _Comitia_, in Daremberg et Saglio, _Dict._ i. 1374 ff.;
    _Concilium_, ibid. 1432 f.; Liebenam, W., _Comitia_, in
    Pauly-Wissowa, _Real-Encycl._ iv. 679 ff.; Kornemann, E.,
    _Concilium_, ibid. iv. 801 ff.; Vaglieri, D., _Concilium_, in
    Ruggiero, _Diz. ep._ 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.




CHAPTER VII

THE CONTIO


Contio, derived from conventio,[766] originally signified “a coming
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,[767] in
which, quoting the treatise of Lucius Julius Caesar on the Auspices, he
declares (1) 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,[768] 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.[769] 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.[770] But in the time of Cicero this use of the word was
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[771] or more commonly
unorganized—summoned by a magistrate or a sacerdos,[772] 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.[773]

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.[774] It might
be composed either of soldiers[775] 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,[776] interrex, dictator, master of horse, and tribunes of the
plebs;[777] also the quaestors[778] and aediles,[779] the pontifex
maximus and the rex sacrorum.[780] Necessarily the right belonged as well
to all extraordinary magistrates, as the decemviri legibus scribundis,
who possessed consular power within the city.[781] But promagistrates
and any others who held an exclusively military imperium could summon
neither the comitia nor the civil contio.[782] The censors held contiones
for the taking of the census,[783] for imposing fines,[784] and for the
lustration. In the last-named function the assembly was also called
comitia centuriata or exercitus urbanus.[785] The quaestors, the curule
aediles, and the plebeian aediles exercised their jurisdiction in
contiones and comitia, which for this purpose they called not in their
own name but by permission of a higher magistrate.[786]

As the contio did not, like the comitia, theoretically include all the
people, any number of magistrates could simultaneously hold meetings of
the kind.[787] 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 lower; the consul, for instance,
could take the meeting from the hands of any ordinary patrician
magistrate,[788] though not of a tribune of the plebs. No one dared
disturb a meeting of any kind under the presidency of the latter,[789]
and at least in the late republic a tribune sometimes forbade a patrician
magistrate to address an assembly;[790] but otherwise consuls and
plebeian tribunes might hold simultaneous contiones.[791]

Sometimes the contio was summoned merely to witness a public 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 centuriata and contio.[792] We hear of a similar
execution of an astrologer or magician outside the Esquiline gate,
according to a primitive custom;[793] and it was most probably in a
contio that the supreme pontiff scourged to death a man who had wronged a
Vestal.[794] The people gathered in the same kind of meeting to witness
an oath,[795] a judicial process,[796] or the levy of a fine.[797] But
it was preëminently the listening assembly, hence the definition offered
by Gellius,[798] “To hold a contio is to address the people, without
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,[799] but also to
the preparatory stage of the voting assembly whether addresses were
delivered or not. Occasionally in early times there was speaking on the
merits of candidates at the opening of an electoral assembly, and the
voting was sometimes interrupted for the purpose.[800] 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,[801] speaking on the day of their
assembly had to be minimized. For this reason the contio for advising
the adoption of a resolution by the comitia centuriata was held on an
earlier day. Such was the meeting summoned in the Campus Martius by the
consul P. Lentulus for the purpose of urging the people to vote in the
ensuing centuriate assembly for the recall of Cicero.[802] 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.[803]

Informal contiones could be called at any time while the sun was up,[804]
with or without[805] an interval between the summons and the meeting, and
in any place[806] at the pleasure of the person who convoked them. In
public assemblies of every kind the people remained standing throughout
the session.[807] The magistrate who was about to summon an auspicated
contio repaired to the templum which he intended to occupy during the
meeting.[808] After taking the auspices there, and finding the omens
favorable, he ordered the crier to call the citizens.[809] His directions
to this assistant were prefaced by a solemn wish that the gathering of
the citizens might be well, fortunate, auspicious, and advantageous to
the Roman people, the commonwealth, himself, his colleague or colleagues,
and his magistracy.[810] After first issuing the summons from the templum
the crier repeated it while making the circuit of the walls.[811]
Meantime the presiding officer invited the senators, his colleague or
colleagues, and the various other magistrates to assist him with their
presence and advice.[812] The invitation was extended even to opposing
tribunes;[813] and on the other hand a presiding tribune was especially
anxious to secure the presence and favorable influence of patrician
magistrates and of the leading men of the state.[814] When the president
saw his friends about him and the people gathered, he called the contio
to order,[815] and proceeded to open the meeting with a prayer.[816] In
the case of a resolution to be brought before the assembly the magistrate
was accustomed first to submit it to the senate, which considered the
bill and perhaps suggested alterations;[817] but sometimes measures were
brought into the comitia without this senatorial deliberation.[818]
In the contio the presiding officer had power to exclude or to limit
discussion of his proposals. 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 previous to
the comitia. The right to address the people belonged primarily to the
presiding magistrate. Although the king enjoyed the superior right, the
notion that in the regal period no private persons spoke in the assembly
seems to be unwarranted.[819] The custom of the republic prescribed that
the president should grant the privilege not only to his colleagues[820]
but also to all the higher magistrates.[821] In some cases the
invitation was extended to senators[822] and to other distinguished
private persons.[823] The tribunes sometimes gave the privilege to
freedmen,[824] to foreign kings,[825] and to ambassadors.[826] The early
republic did not allow women to be present in political meetings;[827]
but in time this severity began to relax. Livy[828] 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—evidently
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. From the time of the Gracchi they
occasionally spoke in public. Dio Cassius[829] states that Tiberius
Gracchus brought his mother and children into a contio to join their
entreaties with his; and according to Valerius Maximus[830] 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 complainants.[831]
It was an accepted custom that no tribune should intercede against a
measure till an opportunity had been afforded private persons to speak
for or against it.[832] 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.[833] Although the president could, and perhaps 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 accounts for its designation as a concilium.[834]
Those invited to speak, if citizens, had to be of good standing and not
under disqualification through a special law or usage. The rex sacrorum
was prohibited not only from holding any other office but also from
addressing an assembly.[835] The spendthrift[836] and the man condemned
for extortion[837] were likewise forbidden. When the right was granted
as a special distinction, the receiver was probably placed thereby on a
footing of equal dignity with the magistrates.[838]

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.[839] 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 usurpation, probably based on their power to arrest and
imprison.[840]

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.[841] 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,[842] he first asked his colleague whether he had
any objection to the proposal. 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 entreaty,
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
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 requesting the people to beg of him
this favor. They did so, doubtless by acclamation; and Pompey, greatly
flattered because the consul and the people besought help of him, a
private citizen, promised to stand by the law.[843]

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.[844] 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.[845] 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,[846] 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 accordingly 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.[847] 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”;[848] or more formally, “In my opinion this
bill as presented ought to be passed, and may it prove well, auspicious,
and fortunate both to yourselves and to the republic”;[849] 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.”[850]

Sometimes the magistrates were invited in the order of their 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.[851]
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.[852] 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.[853]

After the deliberation, or after the formality of opening the contio
which was merely preliminary to the comitia, the president 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,”[854] or more generally, “If you think fit, quirites,
move apart (into your voting groups).”[855] At the same time he ordered
the departure of all who lacked the qualification for voting.[856] The
lictors of the magistrates with imperium and the beadle (viator) of the
tribune attended to clearing away the unqualified.[857]

    Schulze, C. F., _Volksversammlungen der Römer_, 141 ff., 243
    ff.; Rubino, J., _Röm. Verfassung und Geschichte_, 240-53;
    Lange, L., _Röm. Altertümer_, ii. 715-23, and see indices s.
    v.; Mommsen, Th., _Röm. Staatsrecht_, i. 191-209; iii. 370-8,
    and see index s. v.; Willems, P., _Droit public Rom._ 158 f.;
    Herzog, E., _Röm. Staatsverfassung_, i. 632-6, 1057 f., and
    see index s. v.; Karlowa, O., _Röm. Rechtsgeschichte_, i. 48
    f., 379-81; Madvig, J. N., _Verf. u. Verw. d. röm. Staates_,
    i. 219; Soltau, W., _Altröm. Volksversammlungen_, 37 ff.;
    Humbert, G., _Contio_, in Daremberg et Saglio, _Dict._ i. 1484
    f.; Liebenam, W., _Contio_, in Pauly-Wissowa, _Real-Encycl._
    iv. 1149-53; Ruggiero, _Diz. ep._ ii. 1185, s. Contio; 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 tradition. In its earliest known
form the European popular assembly had the following characteristics,
provisionally enumerated here, but established in the next chapter: (1)
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 proposed by none but chiefs
or nobles, generally after previous discussion in council, the common
members wholly lacking initiative; (4) the speakers were as a rule,
though not exclusively, 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, (_b_) for securing by their eloquence
the coöperation of the tribe in a plan already formed in council. However
far developed beyond this crude institution the comitia curiata or the
comitia centuriata of the republican period may have been, traces of all
the characteristics above mentioned may be found in the historical Roman
assembly[858]—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 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[859] and of the passing of other privilegia (νόμοι ἐπ’
ἀνδρί). 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 emancipations,[860] though in the process the
military companies did not vote as units. In like manner, but for a wider
range of functions, 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.[861]

All assemblies which met under pontifical presidency for religious
purposes were called calata,[862] 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 the technical language of
the sacerdotes.[863] In the latter connection it designates the peculiar
method of summoning used by the pontiffs.[864] Probably, at least in
earlier time, their calatores acted as curiate lictors in convoking the
calata comitia curiata,[865] 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.[866] The usual meeting-place of the calata comitia curiata
was in front of the curia Calabra on the Capitoline Hill.[867] 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.[868] First to be noted of the
non-voting assemblies were those in which the people gathered in comitia
under the presidency of the king,[869] in the republic under the rex
sacrorum, to hear the proclamation of the fasti. On the calends of each
month a pontifex minor, as clerk of the college,[870] announced to them
on what day, whether the fifth or seventh, the nones would come.[871] On
the nones the king again summoned the people to hear the calendar of the
month,[872] read probably by the same pontifex minor. This custom fell
into disuse with the publication of the calendar in the Forum, beginning
in 304.[873]

Equally passive were those comitia calata which under the presidency of
the supreme pontiff witnessed the inauguration of the three flamines
maiores,[874] probably of the king in the regal period, and certainly
of the rex sacrorum under the republic.[875] As warlike Mars had his
shrines outside the pomerium,[876] his chief temple being in the Campus
Martius,[877] 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.[878] The inaugural ceremonies were
performed by an augur;[879] in the case of the sacerdotes it was the
supreme pontiff who requested this service of him,[880] whereas the king
could doubtless command an augur without the coöperation 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.[881] 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.[882] 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.[883]

Assemblies of the people were organized in curiae by the pontiffs for
the religious purposes mentioned above, while political 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 among other early peoples,[884] 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
frangere, fragor, “a breaking,” “crash,” “din,” “applause,”[885] the
prefix sub- expressing the dependence of the action upon the proposal
of the speaker, as in the military succlamare, succlamatio.[886] We
may well believe that even after the organization of the assembly as
comitia—that is, in curiate, centuriate, or tribal divisions[887]—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.[888] 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[889]—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 purpose, 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.[890] 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.[891] It has been a disputed question whether the oldest form of
testament here referred to required a vote of the people. Rubino[892]
strongly upheld the negative on the ground (1) of analogy with the
procedure in inaugurations, (2) of analogy with other forms of testament,
none of which required a vote, (3) of the word testamentum itself, which
refers to witnessing, (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,[893] who mentions the people’s witnessing of the
testament, (6) on the statement of Gellius[894] that wills of the kind
were made “in populi contione.” Against this reasoning 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,[895] (3) the consideration
that the act of witnessing in the assembly did not necessarily exclude a
vote, (4) the statement of Gaius[896] that calata comitia were convoked
“for making”—not for witnessing—testaments, (5) the circumstance that
the contio was often a preliminary stage of the voting assembly[897] in
addition to the fact that pontifical language applies the term to comitia
in general.[898] These arguments offset 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.[899] The primitive Germans accordingly made no wills,
but left their property to their children, or in failure of children to
the near kin.[900] In Attica the right to bequeath was instituted by
a law of Solon, which allowed it to those only who had no legitimate
sons;[901] in Sparta the right was introduced by Epitadeus, perhaps
early in the fourth century B.C.[902] Testaments were unknown in Gortyn
at the time when the _Twelve Tables_ of this city were published,[903]
and similar conditions existed in other states of Greece.[904] The rule
holds, too, for ancient India.[905] The Slavic householder could not
alienate his land without the consent of the community.[906] As there is
no reason to assume a more advanced condition for primitive Rome, we may
conclude that, as indicated above, the calata comitia not only witnessed
but ratified testaments.[907]

Mommsen has attempted to fix these days as March 24 and May 24,[908] on
which the rex sacrificulus performed comitial ceremonies not clearly
described by the sources.[909] He admits, however, that the testamentary
comitia met under the pontifex maximus rather than under the rex
sacrorum[910]—a fact directly opposed to his contention. We should be
surprised also to find the testamentary days so close together.[911]
But the most effective 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.[912] The
ancient authorities state that “the sacrificial king, after performing
sacred rites, comes into, or makes a sacrifice in (venit or litat), the
comitium,”[913] 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 testament above described fell early
into disuse,[914] so that the conditions 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.[915]
Adrogatio was the adoption of a person who was his own master and who
accordingly 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.[916] It was not undertaken rashly or without careful
consideration.[917] 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.”[918]
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.[919] 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 condition;[920] and the testimonies
were confirmed by an oath formulated by Q. Mucius Scaevola.[921]

If the pontiffs gave their consent, the case came before the comitia
curiata under the presidency of the chief of the college,[922] 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.”[923] The curiae decided by vote.[924] 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[925]—and by a
similar declaration the adrogator received him into the sacra of the new
family.[926] 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 guardians were not allowed under any
circumstances to place their wards in the power of another.[927]

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;[928] afterward he was declared adopted by a vote of the
curiae.[929] 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.[930]

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,[931] or more generally to widen the range of
one’s eligibility to office.[932] The history of the republic affords
several instances of the transition of individuals;[933] and two plebeian
gentes, the Octavia[934] and the Minucia,[935] boasted of having passed
over from the patricians. Even if these boasts rest upon genealogical
falsifications,[936] the Romans thought such an act legally possible; and
they formulated 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 without recourse to adrogatio. First
he abdicated his nobility by an oath, probably taken in the comitia
calata;[937] then coming before an assembly of the plebs, he held himself
ready to receive plebeian rights through a resolution introduced by the
tribune Herennius.[938] The process allowed the retention of the name,
sacra, and all other privileges not dependent on the patriciate.[939]
But Metellus, the consul, objected that a curiate law was needed to
make the act valid, and the senate evidently agreed with him.[940]
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.[941] The complete process accordingly would have
been the abjuration of the patriciate, 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
therefore 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,[942]
he yielded for the present, and in the following year had himself
arrogated by a plebeian named Fonteius, from whom he was forthwith
emancipated.[943] This procedure, too, allowed him to retain the gentile
name of his birth,[944] his imagines and sacra,[945] 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 privileges, with the understanding that in this case the
arrogatio was not for the customary object but to enable him to change
his rank.[946]

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
coöptation into the senate.[947] 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[948]
apparently has in mind the consuls’ function of recruiting the senate
before the Ovinian legislation,[949] 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,[950] proposed by L. Cassius Longinus and supported by a
senatus consultum,[951] empowered Caesar to recruit the patrician rank.
Octavianus proceeded in a similar manner except that a consular law,[952]
approved also by a senatus consultum,[953] was passed for the purpose.
As the object was religious, we may suppose that the qualifications of
the candidates were previously examined by the pontifical college. On the
analogy of the transitio 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.[954]

But whether the Romans were right in supposing patricians to have been
created in the early republic has been doubted. Mommsen[955] takes the
ground that when the curiae ceased to be exclusively patrician, elevation
to the rank became impossible, 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.[956] 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.[957]

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[958] 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 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 membership, which was at the disposal of the kings.[959]
This view is well adapted to explain the creation of the senate; but
for the period after its establishment Livy[960] adds to the adlectio
of the king a coöptatio 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 monarchy, if not from the beginning, plebeians
were admitted to the senate, and through it to the patriciate, by the
coöperation of the king and the senate, the people having nothing to do
with the matter.[961] But after the overthrow of the monarchy the vote of
the people was substituted for the will of the king, coöptation by the
senate continuing as before.[962]

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.[963] The act took place before
the praetor[964] and did not concern the comitia. Probably a preliminary
examination by the pontiffs was necessary to adoptions as well as to
arrogations.[965]

    Rubino, J., _Röm. Verfassung_, 241-53; Mommsen, _Röm.
    Forschungen_, i. 123-7, 397-409; _Röm. Chronologie_, 241 ff.;
    _Röm. Staatsrecht_, ii. 33-41; iii. 38-40; Lange, L., _Röm.
    Altertümer_, i. 131-4, 177 f., 356 f., 362, 398-401, 459, 795;
    ii. 518, see also indices s. Adrogatio, Calatores, Detestatio
    sacrorum; _Transitio ad plebem_, in _Kleine Schriften_,
    ii. 1-90; Madvig, J. N., _Verf. u. Verw. d. röm. Staates_,
    i. 222-6; Herzog, E., _Röm. Staatsverfassung_, i. 108-11,
    1062-4, 1075; Mispoulet, J. B., _Institutions politiques
    des Romains_, i. 202 f.; Willems, P., _Droit public Rom._
    53 f.; Drumann-Gröbe, _Gesch. Roms_, ii. 187 ff.; Wissowa,
    G., _Religion und Kultus der Römer_, 440 f.; Hallays, A.,
    _Comices à Rome_, 16-9; Mercklein, D. L., _Coöptation der
    Römer_, 11-44 (of the gentes and of the senate); Helbig, W.,
    in _Comptes rendus de l’acad. des inscr. et belles-lettres_,
    xxi (1893). 350-3; Büdinger, M., _Cicero und die Patriciat_,
    in _Denkschr. d. Kaiserl. Akad. d. Wiss. Phil.-hist. Cl._
    xxxi (1881). 211-73; _Der Patriciat und das Fehderecht in den
    letzten Jahrzehnten der röm. Rep._, ibid. xxxvi (1888). 81-125;
    Baudry, F., _Adrogatio_, in Daremberg et Saglio, _Dict._ 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.; Kübler, _Calata
    comitia_, ibid. iii. 1330-4; Ruggiero, E., _Diz. ep._ ii.
    1185; Smith, _Dict._ i. 26 f.; Nettleship, _Contrib. to Lat.
    Lexicog._ 400.




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 usual tendency
of development was toward the abridgment of popular powers to the
advantage of the nobles or of the king;[966] but in some instances may be
discovered a growth in the opposite direction.

Generally the assembly did not have fixed times of meeting but convened
only when called by the king or chiefs. This is known to be true of the
Homeric Greeks,[967] of the Slavs,[968] and of the Romans,[969] 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[970]—a right which gave the people a valuable
political advantage. In like manner the Lacedaemonians met once a
month;[971] the Athenians probably once a prytany (tenth of a year) after
Cleisthenes, and certainly four times a prytany after Pericles.[972] The
Celtic assemblies convened annually or triennially at fixed seasons.[973]
Among all these peoples, however, subjects for consideration were
presented by none but the king or chief, the assembly itself being
wholly without initiative. Such subjects were as a rule previously
discussed in a council of chiefs or nobles.[974] The person who summoned
the assembly naturally made the first speech, 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 coöperation
of the community, he attempted to rouse for it the enthusiasm of his
hearers.[975] The discussion might then be continued by the chiefs or any
others distinguished for age, military prowess, or eloquence.[976] 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;[977] and conditions at Rome, as well
as in Etruria,[978] seem to have been equally unfavorable to the ordinary
freeman.

A considerable variety of business came before the assembly. It might
be summoned to hear the announcement of news of interest to the
community,[979] the reading of the calendar for the month,[980] the
declaration of a policy or opinion by a king or chief,[981] or for
witnessing acts affecting the interests of the community.[982] More
important were judicial cases,[983] questions of war and peace,[984] and
elections.[985]

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,[986] the Germans by clashing their weapons,[987] and the
Celts by both;[988] either demonstration aimed to express, not the will
of the majority,[989] 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.[990] The Achaeans in assembly approved the petition of Chryses,
a suppliant priest; nevertheless King Agamemnon rejected it.[991] After
the people had divided the spoils of war, Agamemnon seized the prize
they had given another.[992] The Trojans were ready to surrender Helen
for the sake of peace; but Priam, to gratify his son, refused, and the
war went on.[993] In his relations with individuals the king often acted
unjustly and tyrannically. Even in affairs which concerned the entire
community he might take large liberty. Without consulting the assembly 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 families,[994] 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 of the magistrate to conclude
peace with or without discussion in the council or senate was recognized
by the states of Italy as late as the Second Samnite war.[995] The
king might even declare an offensive war on his own responsibility, if
without consulting the people he could feel sure of their support.[996]
Enterprises requiring their coöperation he usually submitted to them
to win their approval, as he had no means of coercing the entire
community. His independence of the assembly increased with the growth
of heredity. The idea of sovereignty, strictly speaking, was unknown to
primitive times; yet so far as people thought of political power, they
assigned it to the king and council.[997] 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 assembly
or the prohibition of carrying arms to the meeting was looked upon as
intolerable tyranny.[998] For the disturbance of an Irish assembly the
penalty was death.[999] Public opinion was a check on royalty,[1000] and
in extreme cases the people rebelled and killed their king.[1001]

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 obstructed this power was
accursed;[1002] if, too, in anything the people gave a wrong decision,
the kings and council could set it right.[1003] 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,[1004] in a form which took little account of the commons.[1005]
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.[1006] In Russia Tartar domination,
converting the legitimate princes into tyrants, effected the downfall of
the assemblies.[1007] The building up of large states, too, necessarily
degrades or destroys popular gatherings.[1008]

The heritage of the Roman assembly from the earlier tribal time must
have been slight as well as vague—a heritage diminished further by the
growing power of the king and nobles. 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 concurrence 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.[1009] 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 imperium, whereas the
people enjoyed but a limited degree of freedom, right, and power.[1010]
Their condition was not liberty but a preparation for it.[1011] Their
assembly, like that of other early Europeans, had no power of initiative;
it met only when summoned by the king, and could consider those matters
only which the king brought before it. Its object must have been chiefly
to receive information and to witness acts of public importance. In no
case did the king call upon the assembly for advice; counsel belonged
exclusively to the wise elders, who composed the senate;[1012] 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.[1013] In other than
judicial assemblies the privilege of speaking must have been sparingly
granted.[1014] Finally no elective or legislative act of the curiae was
valid without the authorization of the senate (patrum auctoritas).[1015]

With reference to the specific rights of the assembly, Dionysius[1016]
states that Romulus granted the commons three prerogatives, (1) to elect
magistrates, (2) to ratify laws, (3) to decide concerning war, whenever
the king should refer the matter to them. Livy’s[1017] 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 people, but a concession on the
part of the sovereign.[1018] Still more important, these generalizations
are in great part invalidated, as Rubino[1019] 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
proceedings.[1020] It is significant, too, that the formula of treaty
makes the king the only actor, taking no account of the people.[1021]
Usually peace continued merely through the lifetime of the king who
contracted it,[1022] but a truce for a definite period was binding to
the end, even after his death.[1023] Under the republic to the time
of the decemvirs the treaty-making power resided in the consuls and
senate.[1024] Ordinarily either a senatus consultum empowered the
magistrates to use their discretion[1025] or sanctioned the agreement
when made.[1026] More rarely the senate treated directly with ambassadors
from the enemy.[1027] The clamor of the plebeians sometimes prevailed
upon the senate to negotiate for peace;[1028] and at other times it
was merely by accident that the people heard of the conclusion of a
treaty.[1029] After the decemviral legislation the plebeian assembly
of tribes slowly acquired the right of ratification;[1030] in fact
it was not till the Second Samnite war that their vote came to be
essential.[1031] Among the archives devoted to treaties and alliances,
accordingly, senatus consulta and plebiscites alone are mentioned.[1032]
The very fact that in the later republic the ratification of treaties
belonged exclusively to the tribal assembly[1033] 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.[1034]

As regards the right of the people to declare war a distinction must
be drawn between defensive wars, which, admitting neither choice nor
delay,[1035] could not be referred to their decision, and aggressive
wars, which were in the option of the state to undertake 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 not complied with, the ambassador,
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
substantially 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.[1036] 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 populus
Romanus declare and make war on the peoples of the ancient Latins.”[1037]
In this connection, as in all formulae applying 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.[1038] 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,[1039] 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 and war
are represented as depending upon the character and inclinations of the
king[1040] further establishes the real view of the Roman historians.
In a succeeding chapter[1041] 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,[1042] 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.[1043] 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—θέμιστες—and even his thoughts from the gods.[1044] The mythical or
semi-mythical legislators of Greece, as Minos, Lycurgus, and Zaleucus,
were given their laws by revelation. In like manner Numa, who may be
considered a typical legislator for primitive Rome,[1045] received
his sacred laws and institutions from the goddess Egeria;[1046] and
Romulus, the first great law-giver,[1047] was a demi-god, who passed
without dying to the dwelling-place of the immortals.[1048] Roughly
distinguished, Romulus was the author of the secular law, Numa of the
sacred.[1049] In general the Romans of later time looked back to their
kings, the founders of their state,[1050] as the authors not only
of their fundamental laws and institutions but even of their moral
principles.[1051] Doubtless the Roman view of the ancient king is an
image of the republican dictatorship, of the extraordinary magistratus
rei publicae constituendae, of the consul freed from his various
limitations;[1052] 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,[1053] 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.[1054]
After this stage was reached, the transaction between king and people
had the following form: “I ask you, quirites, whether you will consent
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.”[1055] The
magistrate brought his formulated request before the people (legem
ferre), who accepted it (legem accipere); the question (rogatio) was
directed not to the assembly as a whole but to the component citizens,
who individually replied ut rogas, “yes,” or antiquo, “no.”[1056]
By this procedure the citizens bound themselves to the acceptance of
the proposition on an oral promise, which was the strongest form of
obligation 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 obligation which the citizens
took upon themselves at the request of the magistrate.[1057] 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;”[1058] others from judh, an extension of
the root ju, “to bind.”[1059] 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,[1060] in
which alone the obligations are reciprocal, to the instruction imposed by
a superior magistrate upon an inferior,[1061] to the auspicium which the
magistrate formulates and the god accepts,[1062] to the ordinance which
the subject, without being consulted, receives willingly or unwillingly
from the ruler (lex data),[1063] 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.[1064]
A lex of the kind was not necessarily general,[1065] but applied as
readily to an individual citizen[1066] as to the entire body, to a
declaration of war,[1067] or the banishment of a citizen,[1068] 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.[1069] 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,[1070] and in the latter sense the word
is used in this volume.

The acceptance of a proposition by the citizens obligated
themselves[1071] 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 revolution. Although the
republican magistrates possessed remarkably great power, as temporary
functionaries they belonged to the people, along with whom they were
bound by the laws.[1072]

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[1073] on the supposition that they were passed by
the assembly under royal presidency,[1074] was little more than the ius
pontificum—the customary religious law—with whose making the curiae had
nothing to do.[1075] If the king wished to admit new citizens,[1076]
erect public works, levy forced labor on the citizens,[1077] reform the
military organization,[1078] punish a man with chains or death,[1079]
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 coöperation in national enterprises, or more
rarely in a legal innovation,[1080] 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 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 consideration here. Among
the early Indo-Europeans the settlement 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.[1081] The
religious ideas attaching to crime and punishment[1082] 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.[1083]
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,[1084] but according to
Livy[1085] Numa’s appointment was made by the senate alone; and Servius
ruled long and introduced his great reforms before his election.[1086]
Tarquin the Proud to the end of his reign was neither appointed by the
senate nor chosen by the people.[1087] 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 successor to the monarch—were filled by
appointment, we might infer that the kingship was not elective.[1088]
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 primitive
European peoples, may be added to the authority of our sources[1089]
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
suppose, was in the beginning legal without further action on the part
of the people. But the accession of a king was a momentous 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 predecessor or
by the interrex, and after the acclamation in contio if such action took
place, convoked the curiae on the first convenient comitial day of his
reign,[1090] having held favorable auspices in the morning, and proposed
to them a rogation[1091] 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.[1092] The informal acclamation, if it was the custom, must
have disappeared in time, and the passing of the curiate law was looked
upon as the election proper.[1093]

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.[1094]

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 interpretation of the peculiarity. According to Cicero it
was provided 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 conferred an office on
any person. In the case of the censors this second vote was cast in
the comitia centuriata; all other elective magistrates received it in
the curiate assembly.[1095] Rubino[1096] 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,[1097] 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.[1098]

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 original 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.[1099] That this interpretation is not a
mere invention of Cicero is proved by a statement of Messala[1100] that
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 adsignandis 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.”[1101] In other
words, the person 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.”[1102] Closely related to this meaning is
that of “perfect formality,” as in making a bequest[1103] or in creating
a sacerdos[1104] or a magistrate.[1105] In this sense optimo iure is
interchangeable with optima lege. Developed in another direction, either
phrase readily gives the idea of completeness or perfection of title,
not only to property,[1106] but also to office.[1107] One who holds a
perfect title to a property, or has been granted a civil status[1108]
or an office[1109] in a perfectly legal way, necessarily enjoys all the
immunities, honors, and powers inherent in such absolute condition.
To indicate that due legality 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
appointment or election. These words continued to be used, for example,
in the creation of the dictator as long as his power remained absolute,
but after it became subject to appeal, they were dropped.[1110] 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 consul; in the creation of a promagistrate or
the assignment of a province it might be the senate.[1111] Laws must
often have contained provisions that the magistrates created under them
should be ut qui optima lege.[1112] The Servilian bill most probably
included an article of the kind for the decemviri agris adsignandis
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,[1113] that the decemviri might be officials optima lege[1114] even
without the curiate sanction. 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 formalities,[1115] 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 imperium by
the curiate law or of deriving the imperium from that law by any process
whatsoever. But mention is made of conferring the imperium by a decree of
the senate or by the suffrages of the people in the centuriate or tribal
assembly[1116] and of _confirming_ it by the curiate law.[1117]

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.[1118] 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.[1119] 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 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.[1120] Something 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:[1121] till then the praetor could not undertake
judicial business; the consul could have nothing to do with military
affairs[1122] or hold comitia for the election of his successor.[1123]
Some of Cicero’s contemporaries asserted that a magistrate who failed to
pass the law could not as promagistrate govern a province.[1124] Or if
without a curiate law he made the attempt, he would be obliged to conduct
the administration at his own expense;[1125] and if as promagistrate
he gained a victory in war, he was denied a triumph.[1126] 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
provision for the election of functionaries might include a dispensing
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.”[1127] Yet even without this
special provision the magistrate regularly 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 acceptable to the gods;[1128] and another auspication was
held for the meeting of the curiae.[1129] 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.[1130] 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.[1131] 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;[1132] and it is significant
that the unlimited imperium and iudicium were granted the magistrates
not by the curiae but by the senate.[1133] The law was indeed considered
indispensable to the dictator in 310.[1134] It is generally assumed by
the moderns that C. Flaminius, consul in 217, lacked the law;[1135] their
reason is the statement of Livy[1136] 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 the war[1137] 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.[1138] 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.[1139]

A more valuable instance is that of L. Marcius, elected propraetor by
the army in Spain in 212.[1140] 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.[1141] 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 prevented
by this circumstance from holding military commands during their year
of office or from continuing in command into the following year as
promagistrates.[1142] 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 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 pretorian presidency.[1143] Although the want of the
law involved him in inconvenience, he finally accomplished his purpose
without 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.[1144]
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 sanctioning act to be unnecessary. Cicero, who informs us of this
matter, inclines to the interpretation of Appius. Our conclusion,
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,[1145] 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,[1146] 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[1147] and to
prosecutions of the candidates for bribery.[1148] Their competence to
hold the elective comitia is further established by the senate’s desire
that they should hold them at the earliest possible moment.[1149] The
ultimate failure of these consuls to elect successors was not owing to
any one’s objecting to their competence.[1150]

Scholars have attached great weight to the case of the magistrates of
49, who with the Pompeian party, as has been stated,[1151] 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.[1152] But the case requires careful examination. The
Pompeians had with them two hundred senators, enough in their opinion
to constitute 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.[1153] All these circumstances
clearly imply an intention to assume a temporary transfer of the city
of Rome to the camp and to conduct the government in that place on the
basis of this constitutional 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.[1154] Or in case 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 themselves, 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 respective offices
had not been sanctioned by the curiae governing provinces and holding
military commands; we have seen consuls who lacked the curiate sanction
attending with less inconvenience 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 disturbance 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.[1155] The quaestors entered office regularly on December
5;[1156] 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 sanctioned. It seems clear that ordinarily one curiate
law was passed each year, under the joint presidency of the consuls and
praetors, for all the officials who required it.[1157] 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 important. 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.[1158] In 390, according to Livy,[1159] it voted the restoration
of a citizen from exile. Rubino[1160] 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.[1161] 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 attending the comitia curiata,[1162]
(2) because without a statute a resolution of the assembly was valid,
if each voting division was represented by a single person,[1163] (3)
because the measure, accordingly, 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,[1164] we have a right to infer from the extant fragment (1)
that in the year mentioned, owing to the nearness of Hannibal, 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.[1165] It is known that the consul Q. Fabius Maximus
presided at the consular elections for 214.[1166] He and M. Claudius
Marcellus, who as proconsul was at the time in command of an army, were
elected.[1167] Down to this time the custom had probably been for men who
were reëlected to an office or who passed from a promagistracy to the
corresponding magistracy, or the reverse, to reënact 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,[1168] 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
control over the commanders it had insisted that they should begin their
terms with all due formality at Rome.[1169] 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 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 consequence of it[1170] 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[1171]
and thirty lictors,[1172] who meekly[1173] cast the votes in obedience to
the command of the presiding magistrates.[1174] It is a noteworthy fact
that whereas the statesman Cicero has much to say of the curiate 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 connect its revival closely with their
origin. Cicero[1175] 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,[1176] but
in reality as a part of the religious 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 unessential 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.[1177] 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.[1178] 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.[1179] 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.[1180]

    I. COMPARATIVE VIEW: Spencer, H., _Principles of Sociology_,
    ii. chs. viii, ix; Post, A. H., _Grundlagen des Rechts_,
    130-6; _Die Anfänge des Staats- und Rechtsleben_, 113 f.;
    Jenks, E., _History of Politics_, chs. ix, xi, xii; Schrader,
    O., _Reallexikon_, 923-5; _Sprachv. u. Urgesch._ ii³ (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; Schröder, 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.
    Staatsaltertümer_, 67-9 (Homeric); 166-76 (Lacedaemonian);
    504-38 (Athenian); Gilbert, G., _Constitutional Antiquities of
    Sparta and Athens_, 50-2 (Lacedaemonian); 285-310 (Athenian);
    Buchholz, E., _Homerische Realien_, ii. 24-7; Seymour, T. D.,
    _Life in the Hom. Age_, 101-9; Moreau, F., _Les assemblées
    politiques d’apres l’Iliade et l’Odyssée_, in _Revue des études
    Grecques_, vi (1893). 204-50; Finsler, G., _Das homerische
    Königtum_, in _N. Jahrb. für kl. Alt._ ix (1906). 313-36;
    Fustel de Coulanges, _Ancient City_, 216 f., 244 ff., 329;
    _Histoire des institutions politiques de l’ancienne France:
    La Gaule Romaine_ (1891); _L’invasion germanique_ (1891); _La
    monarchie Franque_ (1888); Farrand, L., _Basis of American
    History_, see index, s. Council; Bernhöft, F., _Staat und Recht
    der röm. Königszeit_, 145-56.

    II. THE COMITIA CURIATA: Schulze, C. F., _Von den
    Volksversammlungen der Römer_, 282-307; Newman, _On the
    Comitia Curiata_, in _Classical Museum_, xx (1848). 101-27;
    Mommsen, _Die patricisch-plebejischen Comitien der Republik_,
    in _Röm. Forschungen_, i. 140-50; _Nichtexistenz patricischer
    Sonderversammlungen in republikanischen Zeit_, ibid. i. 167-76;
    _Bürgerschaft und Senat der vorgeschichtlichen 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;
    _Röm. Staatsrecht_, i. 609-15; iii. 33-42, 316-21; Obudzinski,
    _Die Kuriat- und Centuriatkomitien der Römer_; Kappeyne van
    de Coppello, J., _Comitien_, 60-86; Hallays, A., _Comices
    à Rome_, ch. i; Morlot, E., _Comices électoraux_, ch. ii;
    Soltau, W., _Altröm. Volksversammlungen_, 37-106; Humbert, G.,
    _Comitia_, in Daremberg et Saglio, _Dict._ i. 1374-7; Liebenam,
    W., _Comitia: I. Curiata_, in Pauly-Wissowa, _Real-Encycl._
    iv. 682-6; _Curiata Lex_, ibid. iv. 1826-30; Hüllmann, K.
    D., _Ursprünge der röm. Verfassung_, 96-8; Rubino, J., _Röm.
    Verfassung und Geschichte_, 233 ff.; Madvig, J. N., _Verfassung
    und Verwaltung des röm. Staates_, i. 222-6; Lange, L., _Röm.
    Altertümer_, i. 396-413; Mispoulet, J. B., _Institutions
    politiques des Romains_, i. 194-203; Willems, P., _Droit public
    Romain_, 49-54; Herzog, E., _Röm. Staatsverfassung_, i. 106-18,
    1059-65; Schiller, H., _Röm. Alt._ iv. 628 f.; Karlowa, O.,
    _Röm. Rechtsgeschichte_, 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.
    sächs. Gesellsch. d. Wiss._ vii (1879). 555-826; Bernhöft,
    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 Erörterungen über den röm.
    Staat_, 1-30; Hoffmann, E., _Patricische und plebeiische
    Curien_; Nissen, A., _Beiträge zum röm. Staatsrecht_, 39 ff.;
    Le Jeune, M. L., _L’imperium des magistrats de Rome sous le
    République_; Schwegler, A., _Röm. 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 (ius), 515-7
    (lex); Rothstein, M., _Suffragium_, in _Festschrift zu Otto
    Hirschfelds 60stem Geburtstage_, 30-3; Botsford, G. W., _Lex
    Curiata_, in _Pol. Sci. Quart._ xxiii (1908). 498-517.




CHAPTER X

THE ORGANIZATION OF THE COMITIA CENTURIATA


I. _In the Early Republic_

From the point of view of the Roman historians the centuriate
assembly,[1181] 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[1182] and its earliest statute the Valerian
law of appeal.[1183] Though they could not know precisely when it voted
for the first time, they were right in understanding 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,[1184] and it certainly 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 commands 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,[1185] for promising the reward of spoil in case of victory,[1186]
for reprimanding as well as for encouraging.[1187] On one occasion
the master of horse, calling a contio of soldiers, appealed to them
for protection from the dictator,[1188] and they replied with a shout
that they would allow no harm to befall him.[1189] Thereupon the
dictator summoned another contio to witness the court-martial of the
rebellious officer.[1190] On another occasion the consuls asked the
soldiers to decide a question by acclamation, and they obeyed.[1191]
We hear of the adjournment of a meeting on the motion of a military
tribune.[1192] After a victory, honors and rewards were granted by
vote of the soldiers.[1193] For acclamation, the regular form of
voting,[1194] was sometimes substituted a division of the army to right
and left for the sake of silence.[1195] A military assembly, meeting
at Veii, decided upon the appointment of Camillus, then in exile, to
the dictatorship, and despatched the resolution to Rome.[1196] 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.[1197] Long afterward the army in Spain
elected a propraetor.[1198] It may be that much other political business
was decided by the army in the troublous 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 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;[1199] before the reform it met ordinarily in military
array under its officers and with banners displayed;[1200] 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.[1201] For these reasons it was frequently, even
in official language, termed exercitus.[1202] The use of this word,
however, should not mislead us into supposing that the assembly was an
actual army. Though Dionysius[1203] represents the first meeting as
armed—a mere supposition, apparently to account for its known military
features—the fact is that the citizens carried weapons to none of the
assemblies.[1204] Strictly, too, the centuriate gathering was termed
exercitus urbanus in contrast with the real army designated as exercitus
armatus or classis procincta.[1205] The facts thus far adduced amply
warrant us in refusing to consider the voting assembly an army.

But some imagine the censorial assembly for the assessment and lustration
of the citizens to have been an army.[1206] For this view they rely upon
Dionysius,[1207] who states that the people came armed to the first
lustrum, and upon an uncertain passage from the Censoriae Tabulae, quoted
by Varro,[1208] 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;[1209]
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 burdens 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,[1210] as well as the women and
children.[1211] 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 condition, 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.[1212] On the contrary, the soldiers were enrolled
directly from the tribes.[1213] 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 purpose the men of military age
who were free from duty for the time being, or who had served the
required number of campaigns—sixteen in the infantry or ten in the
cavalry[1214]—or who were exempt on account of bodily infirmity or for
any other reason, had to be admitted to the junior centuries, thus
materially 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.[1215] The mechanics who
were liable to skilled service in the army[1216] were then grouped
for voting purposes in two centuries, that of the smiths and that of
the carpenters,[1217] based on the two guilds in which these artisans
were already organized.[1218] Authorities differ as to the classes with
which they were associated. Livy[1219] adds them to the first class.
Cicero,[1220] too, places a century of carpenters with that group, making
no mention of the smiths, whereas Dionysius[1221] assigns both centuries
of mechanics to the second class. The explanation 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
tradition 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.[1222] In like manner the trumpeters (tubicines, liticines) and the
hornblowers (cornicines) were grouped each in a century for voting in the
comitia,[1223] also on the basis of their guild organizations.[1224]
The accensi velati, who as we are informed followed the army in civilian
dress and without weapons,[1225] also received a centuriate organization.
As to the number of centuries belonging to them opinion has differed.
Some, formerly including Mommsen,[1226] have assumed two. Livy,[1227]
however, gives but one century; Cicero[1228] seems to have only one in
mind; and in imperial time there was a single collegium, or century, of
accensi,[1229] 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.[1230] Lowest in rank of the supernumerary centuries was that of
the proletarians.[1231] The government so designated those citizens
who owned no land,[1232] and hence were poor. They were exempt from
military duty, excepting in so far as they served with arms furnished
by the state.[1233] Though few in the beginning, their number gradually
increased till in the time of Dionysius[1234] 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,[1235]
which was not counted with any class but was reported after all the
others. Dionysius[1236] wrongly speaks of it as a sixth class. The
existence of this century is due to the principle that no one should be
excluded from the right to vote on account of poverty.[1237]

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.[1238]
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.[1239] Two of the thirty centuries
assigned to that class In the comitia centuriata must therefore have
been in fact supernumerary. If one was the accensi, what was the other?
Most probably it was the century of the tardy described by Festus,[1240]
made up at each meeting of those who came too late to vote in their own
classes. Obviously all writers who apply the discriptio centuriarum to
the army view this century, as well as that of the proletarians, with
suspicion.[1241] The two centuries of the accensi and the tardy should be
included among, not added to, the thirty of the fifth class.[1242] Having
reached this result, it might seem advisable for us to assume no further
supernumerary centuries for the fifth class, but to follow the authority
of Dionysius in assigning the musicians to the fourth. Or as the
trumpeters 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 unattainable. The notion of Dionysius
that one century of musicians voted with the seniors, the other with the
juniors, and so of the mechanics,[1243] is erroneous; for the seniors did
not vote separately from the juniors.

In the centuriate assembly each of the six tribal troops of knights[1244]
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.[1245] Afterward as new voting groups were added
to the equites they came to be called centuries, and thence the term
extended to the old.[1246] The centuriate organization of the comitia did
not demand the creation 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,[1247] 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,[1248] the eques retained his public horse, and consequently
his membership in an equestrian century, long after his retirement from
active duty.[1249] The increase in the number of equestrian votes was
owing to the participation of plebeians in the mounted service.[1250]
From them twelve equestrian centuries were formed for the centuriate
assembly, and added to the six groups already existing. This increase
probably came about in the course of the fourth century, accompanying or
following the enlargement of the infantry from two to four legions.[1251]
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,[1252] (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        12
    =========+=====================+===========+==================
     CLASSES |  JUNIOR CENTURIES   |  SENIOR   | RATINGS IN ASSES
             |                     | CENTURIES | ACCORDING TO LIVY
    ---------+---------------------+---------—+-------------------
       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

Before the reform this assembly met in military array with banners
displayed, each company under its centurion.[1253] The voting was
oral. Probably it was at first by acclamation; if so the suggestion 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.[1254] The centurions may originally have served as rogatores,
to collect and report the votes.[1255] Each century cast a single vote,
which in historical time the majority of its members decided.[1256] The
voting proceeded according 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.[1257] The
announcement of the prerogative votes greatly influenced the action of
those which followed.[1258]


II. _The Reform_

The study of the centuriate assembly begun earlier in the volume[1259]
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 impetus to the activity of the assemblies in general, as is
manifested in the Genucian, Publilian, and Hortensian legislation. In
312 when the change was made in the appraisements from land to money,
many aerarii who had voted with the proletarians must have been advanced
to the higher classes.[1260] This step toward the democratization of
the comitia centuriata, following 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.[1261] 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 century from the first
class on each occasion before the voting began; (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[1262]
and of 383[1263] seems to imply that they had been introduced before
these dates.[1264] But the passages here referred to are uncertain; and
at all events they belong to a period in which the centuries may still
have been closely connected with the tribes.[1265] 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[1266] account of the year 296 has reference to a feature of the
old organization. This disposition of the three passages is supported by
the following consideration. Had the reform been introduced 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);[1267] and in that case all memory of the
original Servian system would have been lost. The circumstance that we
are acquainted with it in some detail is proof of its survival into the
third century B.C. In fact Livy’s[1268] chief reference to the reform
indicates that it was completed, if not undertaken, after the number 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.[1269] The contention 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.[1270] The
censor commonly assumed to be the author of the change is either Fabius
Buteo, 241, or Flaminius, 220.[1271] Against the latter may be urged
the silence of Polybius[1272] and Livy,[1273] 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.[1274]

A little reflection, however, will convince us of the impossibility 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.[1275]
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,[1276] who supposes the change to
have come about naturally with the increase in the number of tribes,
and of Dionysius,[1277] who ascribes the innovation, or a part of it,
to no 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.[1278]
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[1279]
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.[1280] The abolition of the equestrian prerogative may likewise
have been gradual; it may have been retained in one class of comitial
acts—elections 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.[1281]

As no description of the reformed organization has come down to us, we
are obliged to reconstruct it from the scant references of various
writers. It is to be noted first that the five classes continued in the
new system.[1282] They were still based on the census,[1283] and were
called to vote in their order as before.[1284] The distinction between
juniors and seniors was retained;[1285] and as these comitia were still
called centuriata, the centuries necessarily continued as the voting
units.[1286] But the 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[1287] 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,[1288] Voturia
iuniorum,[1289] Galeria iuniorum,[1290] as well as by those which in a
more general way refer to voting or the announcement of the votes by
or according to tribes in the centuriate assembly.[1291] It accords
perfectly with other evidence that the century was an integral part of
the tribe.[1292] This is the view adopted by Niebuhr.[1293] It is open,
however, to the fatal objection of abolishing the classes, which in
fact continued through the republic, as has already been shown.[1294]
He does indeed allow for a first class comprising the country tribes
and a second class made up of the others;[1295] but this hypothesis is
overthrown by those citations which imply the continuance of all five
classes,[1296] as well as by those which make the census an element of
the later organization.[1297] Huschke,[1298] who places the reform in the
earliest times of the republic, adopts Niebuhr’s view as to the number
of centuries; but maintaining the continuance of the five classes,[1299]
he considers them to be groups of tribes, the seventeen old rural tribes
being distributed as follows: in the first class eight, in the second,
third, and fourth respectively two, in the fifth three.[1300] 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 retaining 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 invalidated by the fact that the centuries continued to
be divisions of the classes, which were still called to vote in their
order.[1301]

The assumption of a diminution in number having proved untenable, the
conclusion is that there was an increase.[1302] In view of the facts
(1) that the reformed organization rested on a tribal basis,[1303] (2)
that the centuries were divisions not only of the tribes[1304] but also
of the classes,[1305] (3) that the tribes could not have been divisions
of the classes,[1306] it is necessary to conclude that the classes were
themselves divisions of the tribes with the centuries 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,[1307] 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, amounting
to a total of three hundred and seventy-three. This is substantially the
view of Pantagathus.[1308] Convincing evidence is afforded by a group of
inscriptions of the imperial period.[1309] From them we learn that under
the emperors the urban tribes comprised severally (1) a corpus seniorum,
(2) a corpus iuniorum, (3) the tribus Sucusana a corpus Iulianum, and the
Palatine and Esquiline each a corpus Augustale. Every corpus consisted 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.[1310] 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 corpus as it must
have stood in the period immediately following the reform. This result
confirms the view suggested by Pantagathus.

It was accepted by Mommsen in his _Römische Tribus_ (1844) and in the
first seven editions of his _History of Rome_; but in his _Römisches
Staatsrecht_[1311] 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
× 2 = 70 centuries, each with one vote, whereas the remaining classes
together, made up of 4 × 35 × 2 = 280 centuries, cast but 100 votes.
How the centuries 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 component centuries, for according to the theory some groups
comprised 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 organization given in
Cicero’s _Republic_,[1312] which speaks of a hundred and ninety-three
centuries, and which Mommsen[1313] believes to be a description of the
reformed organization. Cicero’s[1314] 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[1315] are
the chief points in Mommsen’s favor. Against his interpretation it
may be urged (1) that the passage is exceedingly uncertain;[1316]
(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,[1317] being in this case especially liable to error because in
the reformed organization 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 (_n_) 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,[1318] 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 unnatural to
commend itself to the understanding. Apart from its lack of support in
the sources, an objection to the theory is its extreme impracticability.
Holding that juniors and seniors could not have been brought together in
the same voting divisions, 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    4 votes |
                 |           |   27 in groups of three  9 votes |
                 |           |                         --       |
                 |           |                         13 votes |
                 |           | 35 of juniors                    |
                 |           |    2 in a group          1 vote  |
                 |           |   33 in groups of three 11 votes |
                 |           |                         12 votes |
                 |           |                         --       |
                 |           |    Total                         |  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                 | 193[1319]
  ===============+===========+==================================+==========

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 numbers 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
more clearly than ever the inequality of rights in the comitia,[1320]
and therefore could not have been called democratic by Dionysius.[1321]
It is contradicted also by Livy,[1322] 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,[1323] and is refuted by the many citations which assume the
voting or the announcement of the votes to have proceeded according to
tribes[1324] as well as according to classes.[1325]

Lange,[1326] 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, severally 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.[1327] 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.[1328] This view as to the announcement is
contradicted by the sources,[1329] which clearly imply that 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
opinion cast one vote in the closing announcement,[1330] as well as (2)
the fact that the sources give more than six votes to the equites in the
late republic.[1331] 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.[1332]

A solution of the problem as to the order of voting suggested by
Klebs[1333] 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;[1334] and a second announcement, made in that
order, decided the election or other act of the people. Each candidate
was declared elected when a majority of votes was reached in his favor.

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,[1335] however, speaks of
a single century of artisans for his time. The two industrial colleges,
which had existed from an early age,[1336] seem to have been joined in
one and to have continued into the imperial period after nearly all
the other guilds had been abolished.[1337] 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[1338] and were probably given one vote. The
accensi velati, too, formed a college composed of wealthy freedmen,
freeborn, and even knights.[1339] 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,[1340] which were as
necessary after the reform as before it.[1341] Although new centuries
were added, possibly by the later republican censors and certainly by
the emperors,[1342] the principle of the reformed organization remained
unchanged.[1343]

In the reformed assembly the equestrian centuries ceased to be
prerogative.[1344] A century was drawn from the first class[1345] by
lot[1346] 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;[1347] and the sex
suffragia, no longer exclusively patrician,[1348] 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 supernumerary 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.[1349]

    I. THE EARLIER ORGANIZATION: the literature on this subject is
    essentially the same as for ch. iv.

    II. THE REFORM: Schulze, C. F., _Volksversamml. der Römer_, 69
    ff.; Huschke, Ph. E., _Verfass. des Königs Servius Tullius_,
    ch. xii; Peter, C., _Epochen der Verfassungsgesch. der röm.
    Republik_, 42 ff.; Savigny, F. C., _Verbindung der Centurien
    mit den Tribus_, in _Vermischte Schriften_, i. 1-13; for
    other early literature, see Lange, _Röm. Alt._ ii. 495 ff.,
    notes; Neumann, C., _Zeitalter der punischen Kriege_, 187
    ff.; Nitzsch, K. W., _Gesch. der röm. Republik_, i. 146 f.;
    Mommsen, _Röm. Tribus_, 66-113, 143-149; _Röm. Staatsr._ iii.
    269 ff.; Lange, L., _De magistratuum romanorum renuntiatione
    et de centuriatorum comitiorum forma recentiore_, in _Kleine
    Schriften_, ii. 463-493; _Röm. Alt._ ii. 494-516; Madvig,
    J. N., _Verfass. und Verw. des röm. Staates_, i. 117-23;
    Herzog, E., _Röm. 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 Romains_, i. 46-8; Greenidge, A. H. J., _Roman Public
    Life_, 252 f.; Abbott, F. F., _Roman Political Institutions_,
    74-6; Karlowa, O., _Röm. Rechtsgesch._ i. 384-8; Soltau, W.,
    _Altröm. Volksversamml._ 358-71; _Cicero de Re Publica und
    die servianische Centurienordnung_, in _Jahrb. f. Philol._
    xli (1895). 410-4; Kappeyne Van de Coppello, J., _Comitien_,
    20 ff.; Morlot, E., _Comices électoraux sous la république
    Rom._ ch. v; Goguet, R., _Centuries_, ch. iv; Le Tellier, M.,
    _L’organisation centuriate_, ch. ii; Hallays, A., _Comices à
    Rome_, 25-31; Plüss, H. T., _Entwick. der Centurienverfass._;
    Ullrich, J., _Centuriatcomitien_; Clason, O., _Zur Frage
    über die reformierte Centurienverfass._ in Heidelb. _Jahrb._
    lxv (1872). 221-37; Ritschl, F. W., _Opuscula Philologica_,
    iii. 637-73; Genz, H., _Centuriat-Comitien nach der Reform_;
    Guiraud, P., _De la Reforme des Comices centuriates au III
    Siècle av. J.-C._ in _Rev. hist._ xvii (1881). 1-24; Klebs,
    E., _Stimmenzahl und Abstimmungsordnung der ref. servianischen
    Verf._, in _Zeitschr. d. Savignystift. f. Rechtsgesch.
    Röm._ Abt. xii (1892). 181-244; Meyer, E., _Die angebliche
    Centurienreform Sullas_, in _Hermes_, xxxiiii (1898). 652-4;
    Humbert, G., in Daremberg et Saglio, _Dict._ ii. 1389 f.;
    Kübler, 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,[1350] who has
certainly placed the beginning of its functions at the earliest possible
date,[1351] was the election of the first two consuls. Thereafter
these comitia not only continued to elect the consuls, but also
naturally acquired the right to choose all elective higher magistrates,
extraordinary as well as ordinary, who were entrusted temporarily
or permanently with some or all of the consular power—including the
decemviri legibus scribundis, 451, 450, the tribuni militum consulari
potestate, beginning in 444, the two censors, beginning in 443 (or 435?),
and the praetors, increased gradually from one in 366 to sixteen under
Caesar.[1352] The activity of this assembly in elections expanded with
the growth in the number of offices; and its importance was further
enhanced by the opening of the patrician magistracies to plebeians.
The validity of a centuriate elective act depended upon the subsequent
curiate law, which soon became a mere form, and upon the patrum
auctoritas. The latter, too, was deprived of all vitality by the Maenian
plebiscite,[1353] which required the act to be passed before the election
while the issue was uncertain.[1354] The date of this plebiscite is
unknown; but it probably followed close upon the Hortensian legislation
(287).[1355]


II. _Legislative_

In an earlier chapter[1356] it was shown that primitive Rome, like
primitive Greece, regarded law as god-given—a conception which left no
scope for legislation by a popular assembly. Though under the kings
the people may occasionally have been called to vote on a resolution
affecting their customs, the comitia curiata never acquired a law-making
function.[1357] Even the declaration of war, which historical Rome
looked upon as a lex, was issued by the king without the consent of
the community, his only need being to secure the hearty support of the
warriors.[1358] It seems probable therefore that this question came,
not before the comitia, but before a military contio.[1359] From the
custom of the soldiers to participate in the settlement of questions
touching their interests[1360] developed the function of declaring war.
The people, however, were slow in acquiring the right. It is true that
several such acts are mentioned by Dionysius for the early republic—for
the war against the Volscians, 489,[1361] against Veii, 482,[1362] and
against the Aequians and Volscians in 462.[1363] These instances may be
explained either as acclamations in contio or as exceptional votes in
the comitia centuriata, or with more probability, owing to the character
of our sources for those early times, as anticipations of later usage.
The decisive fact in the problem is that as late as 427 a controversy
arose as to whether war could be declared by order of the people only,
or whether a senatus consultum was sufficient. It was settled in favor
of the people by the threats of the plebeian tribunes to impede the
levy.[1364] For the next hundred years mention is often made of the
exercise of this function by the people;[1365] and when a declaration
was once issued by them, it could be recalled only by their vote.[1366]
During the period of the Samnite wars the assembly still more frequently
made use of this right.[1367] In better known times we find it firmly
established. The people declared war against Carthage in 264,[1368]
against the Illyrians in 229,[1369] against Carthage again in 218,[1370]
against Macedon in 200,[1371] against Antiochus in 191,[1372] against
Macedon again in 171,[1373] against Jugurtha in 111.[1374] In the case of
the two Macedonian wars here referred to, the declaration is mentioned as
an act of the comitia centuriata.[1375] In 167 the praetor M. Juventus
Thalna attempted to pass through the tribal assembly a lex de bello
indicendo against the Rhodians, but was effectually opposed by a tribune
of the plebs;[1376] so that the function continued to be exclusively
centuriate. Cn. Manlius Volso in 189 made war upon the Gallograeci
without an order of the people or a decree of the senate, and was on that
ground accused in the senate by two of his legati.[1377] We conclude,
however, that the charge was fruitless from the circumstance that the
senate finally decreed him a triumph.[1378] For beginning war against
the Histrians on his own responsibility the consul A. Manlius, 178,
was threatened with a prosecution, which was quashed by a tribunician
veto.[1379] Licinius Lucullus was not even brought to trial for the war
he waged without an order of the people against the Vaccaei in 151.[1380]
Hence it appears that though a magistrate could not legally begin war
on his own initiative, there was no real danger of condemnation for so
doing. The reason is that those in authority attached little importance
to the right of the comitia in the matter. Only once is mentioned a
fear lest the people may not give their consent to a war.[1381] One
case of rejection is recorded, and even here the centuries at a second
session obediently accepted the consul’s proposition.[1382] The control
of diplomacy and of the revenues by the senate and magistrates assured
these powers the practical decision of questions of war and peace to
such an extent that ratification by the assembly could ordinarily be
counted on as certain; and its influence decreased with the expansion
of the empire. Meantime, however, the idea of popular sovereignty,
which was expressing itself in other spheres of government, effectually
demanded, if only in form, some concession to the assembly in this field
as well; and accordingly in the formula of declaration “populus” wholly
takes the place of the once all-important “senatus.”[1383] By such empty
concessions the nobility rendered the people more docile. Thus to the
end of the republic the centuriate assembly retained the constitutional
right to decide questions of aggressive war, although in practice the
magistrates nearly regained the place which they and the senate had held
during the century following the overthrow of kingship.[1384]

The nature of our sources does not allow a precise judgment regarding
the importance of the comitia curiata in the early republic. To the
time of the Gallic invasion it may occasionally have passed resolutions
affecting the status of citizens.[1385] But as legislation never became
an acknowledged function of the curiae, we are in a position to assert
that through the comitia centuriata the people were first introduced into
this sphere of public life.[1386]

The earliest legislation of this assembly, in fact the earliest recorded
legislative act of the Roman people, was the lex de provocatione
attributed to Valerius Publicola, consul in the first year of the
republic, 509.[1387] It was also through the centuriate assembly that
the consuls Valerius and Horatius in 449 passed a law which forbade the
election of a magistrate without appeal, and affixed as a penalty the
outlawing of the trespasser.[1388] The third Valerian law of appeal in
300[1389] was an act of the same assembly, whereas all three Porcian
laws on the same subject seem to have been tribal.[1390] The legislative
function of the centuriate assembly, resting in the pre-decemviral period
simply on precedent, brought into being the statute of 471 to establish
a tribal assembly for the transaction of plebeian business, improperly
known as the Publilian law,[1391] the lex sacrata for the division of
the Aventine among the plebeians, erroneously termed Icilian, 456,[1392]
the lex Aternia Tarpeia de multae dictione, 454,[1393] the lex Menenia
Sextia on the same subjects in 452,[1394] the laws ratifying the Twelve
Tables in 451, 449[1395]—all excepting the second having reference to the
limitation of the magisterial power. Regarding the creation of offices,
no mention is made of a law for the institution of the consulate itself;
but the centuries passed a law for the creation of the dictatorship,
501,[1396] and of the decemviri legibus scribundis, which should be named
Sestian after the consul who undoubtedly proposed it, 452.[1397] Thus
far popular legislation had no basis excepting precedent, but a law of
the Twelve Tables now provided that there should be resolutions and
votes of the people, and whatever the people voted last should be law and
valid—the first clear enunciation of the principle that the will of the
people, whenever expressed, prevailed over every other authority.[1398]
It was far from establishing popular sovereignty, however, for the
initiative remained with the magistrates.

The activity of the comitia centuriata, thus authoritatively established,
manifested itself in the passing of the Valerian-Horatian laws of
449,[1399] the lex Iulia Papiria de multarum aestimatione, 430,[1400] the
law for the election of six military tribunes by the comitia tributa,
362,[1401] the law of the dictator Publilius Philo, 339,[1402] the third
Valerian law concerning appeal, 300,[1403] and finally the Hortensian
law, 287.[1404] All have reference to the regulation of magistracies
or of assemblies. Meantime the centuriate comitia passed the law for
instituting tribunes of the soldiers with consular power, 445,[1405] and
censors, 443[1406] (or 435?), for increasing the number of quaestors,
421,[1407] for instituting the praetorship, 367,[1408] and the curule
aedileship in the same year.[1409] All the laws thus far mentioned,
excepting that for the division of the Aventine, effected important
modifications of the constitution, the most of them forced upon the
senate and magistrates in the struggle for equal rights in which the
commons were engaged with the nobility. In like manner two provisions
of the Valerian law of 342, (1) that the name of no soldier should be
erased from the muster roll without his consent. (2) that no military
tribune should be degraded to the rank of centurion,[1410] established
under the sanction of an oath certain fundamental rights on which the
soldiers and their officers respectively insisted. Another provision,
the total abolition of debts,[1411] if indeed it is historical, was
administrative, and is considered therefore in another connection.[1412]
Of the same nature, though less sweeping, was the Hortensian provision
for the relief of debtors.

As soon as there came to be plebeian senators (about 400), the patricians
reserved to themselves the right to decide on the legality of legislative
and elective acts of the people under patrician presidency—a right
designated by the phrase patrum auctoritas, which signified originally
the authorization of the senators, thereafter of the patrician senators.
Till 339 the patres were at liberty to give or withhold the auctoritas;
but in that year an article of the Publilian law required them to grant
it to legislative acts of the centuries before the voting began and
while the issue was still in doubt, reducing it in this way to a mere
formality.[1413] The effect was to free centuriate legislation from the
constitutional control hitherto exercised by patrician senators.[1414]
Henceforth the resolutions of this assembly could be declared illegal
by no less than a majority of the entire senate. The Publilian statute,
accordingly, deprived the patricians of an important power, whereas
the senate as a whole continued through its consulta to exercise an
increasing influence over the comitia centuriata. Polybius rightly
ascribes to the consuls, therefore, the function of bringing the
resolutions of the senate before the assembly. It could not have been
the intention of Publilius Philo to energize the comitia centuriata
by this provision; for another article of the same statute, confirming
the validity of the tribunician assembly of tribes, as then actually
constituted exclusively of plebeians, paved the way for the Hortensian
law, which by making the acts of the tribunician assembly in every
respect equal to those of the centuries, deprived the latter of their
great importance as a factor in constitutional progress. From the time
of Hortensius to the time of Sulla no constitutional statute is known to
have been enacted by the centuriate assembly; though our sources do not
give us clear information on the point, it is highly probable that the
consuls and dictators of this period preferred to bring their measures
however important before the tribes.[1415] In Sulla’s time the lex
Valeria, 82,[1416] clothing him with his extraordinary dictatorship rei
publicae constituendae, must have been passed by the centuries, which
alone in addition to the politically obsolete comitia curiata could be
summoned by an interrex, as was the author of the law. This act, Lange
remarks, cannot well be considered a revival of the legislative power of
the centuries, as it was not only passed through intimidation and under a
magistrate who had no constitutional right to initiate legislation, but
it also created a legalized tyranny destructive of popular freedom.[1417]
In the words of Cicero it was the most iniquitous of all laws and most
unlike a law.[1418] Only one of Sulla’s statutes, the lex de civitate
Volaterranis adimenda, 81, which, depriving the Volaterrani of their
civitas cum suffragio, placed them in the condition of the Latins
of Ariminum, is known to have been an act of the centuries.[1419]
Probably all his other laws were ratified by the tribes.[1420] C.
Julius Caesar preferably used the tribes, although it is possible that
his lex de provinciis and his lex iudiciaria came before the comitia
centuriata.[1421]

Sulla’s constitutional legislation curtailed the powers of the plebeian
tribunes and of their assembly, proportionally increasing the importance
of the centuries; and although his form of government was of short
duration, the optimates thereafter naturally preferred the comitia
centuriata for the ratification of senatorial resolutions.[1422] To
this assembly accordingly belong the leges Vibiae of the consul C.
Vibius Pansa, 43, which confirmed the acts of Caesar, and took the place
of Antony’s leges de coloniis deducendis and of his lex de dictatura
tollenda.[1423]

On the institution of the censorship, and by the law which called the
office into being, it was enacted that elections of censors should be
ratified, not by the curiae as in the case of other magistrates, but
by the centuries themselves.[1424] Before this date the principle was
already established that the people should vote twice in the election of
every magistrate in order that if they repented of their choice, they
might recall it by a second vote.[1425] As the primary function of the
censors was the periodical reconstitution of the comitia centuriata, it
was doubtless thought appropriate that this assembly alone should be
concerned with the election. The lex centuriata de potestate censoria,
evidently passed under consular presidency, remained, like the curiate
law in confirmation of elections to other offices, a mere form. It
was of too little practical significance ever to be noticed by the
historians; in fact no individual instance of the passing of this act
is mentioned by any extant writer. Characteristically the lex Aemilia,
433, which is alleged to have cut down the term of censorship to eighteen
months,[1426] and the lex Publilia Philonis, 339, which provided that
at least one censor must be a plebeian,[1427] were centuriate, whereas
the Licinian-Sextian law, 367, which provided that one consul must be a
plebeian,[1428] and the Genucian law, 342, permitting both to be,[1429]
were plebiscites.

An occasional attempt was made by a magistrate to usurp for the comitia
centuriata a share in the administration. The first which is worthy of
notice,[1430] even though it may be mythical, is the agrarian proposal
of Sp. Cassius, 486. According to the sources it was opposed by the
senate and the colleague of the mover. Far from enacting it into a law,
the author, on the expiration of his consulship, was himself accused
of attempting to usurp the royal power, and was, in one version of the
story, condemned to death by the assembly to which he had offered the
bill.[1431] The senate must have taken very seriously this first attempt
of a magistrate to transfer some of its administrative power to the
comitia. The law for the division of the Aventine Hill among the people,
456, was actually passed, most probably by the centuries.[1432] It was
forced upon the government by the plebeians, and did not serve as a
precedent for the future. The Valerian law of 342,[1433] which abolished
debts, was an extraordinary administrative measure similar in character,
but far more sweeping, to the clause for the relief of debtors in the
Licinian-Sextian plebiscite.

If then the centuriate assembly was excluded from the field of
administration, it must certainly in pre-decemviral times have had no
part in religious legislation. The law which regulated the intercalary
month inscribed on a bronze column by Pinarius and Furius, consuls in
472,[1434] and the ancient law composed in archaic letters, mentioned
in connection with the year 363,[1435] requiring the praetor maximus to
drive the nail on the ides of September, must accordingly have been acts,
not of the centuriate assembly, but of the pontifical college. By the
ratification of the Twelve Tables, composed chiefly of private laws and
of closely connected religious regulations, an example was set for the
invasion of both of these legal spheres by the centuriate assembly. But
the precedent remained unproductive; for at this time the tribal assembly
under plebeian or patrician magistrates was recognized as competent for
legislation, and naturally took to itself the function of enacting the
less weighty, for a time generally the non-constitutional, laws.[1436]
We are not to imagine the field of legislation clearly divided into
constitutional, private, religious, and other departments; aside from
the question of declaring an offensive war, which remained strictly the
province of the comitia centuriata, the distinction in legislation was
simply between the more and the less important; the dignified assembly of
centuries, organized on an aristocratic-timocratic basis, was entrusted
with the weightier business, whereas the simpler tribal assembly, which
was easier to summon and more expeditious in action, served well enough
for the despatch of lighter business. The question of the assembly to
be employed was largely one of inertia; it required a far greater force
of circumstances to set in motion for legislative purposes the cumbrous
centuriate assembly than the relatively mobile gathering of the tribes.


III. _Judicial_

The jurisdiction of the people in whatever assembly was confined to
cases of crime and of serious disobedience to magistrates.[1437] It was
not exercised by them in the first instance but only by way of appeal.
In the opinion of the Romans Tullus Hostilius was the first to grant
an appeal,[1438] necessarily to the comitia curiata, which under the
kings remained the only formally voting assembly.[1439] During the regal
period, the well attested appellate function of the comitia[1440] was
simply precarious, depending wholly on the pleasure of the king.[1441]
The Romans represented the advance in liberty brought by the republic
as consisting partly in the establishment of the right of appeal for
every citizen through the lex de provocatione of Valerius,[1442] a
consul of the first year of the republic—according to Cicero the first
law carried through the comitia centuriata—providing that no magistrate
should scourge or put to death a citizen without granting him an appeal
to the people.[1443] Although the historical existence of this Valerius
has been questioned, and though his law has the appearance of being an
anticipation of the Valerian law of 449, or more closely of that of
300,[1444] we must admit in favor of its reality that the decemvirs were
themselves exceptionally above appeal and that their laws guaranteed to
the citizens an extensive use of the right.[1445] The appellant, however,
had no legal means of enforcing his right against the magistrate; he
could do no more than “throw himself on the mercy of the crowd, and
trust that their shouts or murmurs would bend the magistrate to respect
the law.”[1446] The first lex Valeria, accordingly, brought little
real benefit to the citizens.[1447] The right was recognized and its
application extended, as intimated above, by the Twelve Tables, in which
various laws relating not only to capital crimes but to some of less
importance granted an appeal to the people.[1448] It was provided also by
a special statute of the code that judgments as well as laws involving
life or citizenship could be passed only by the comitiatus maximus, which
is evidently the comitia centuriata.[1449]

The Valerian-Horatian law of appeal, 449, was directed against the
recurrence of the decemvirate or any similar magistracy with absolute
jurisdiction, and hence resembled neither the laws of the Twelve Tables
referring to the subject nor the Valerian law of 509. It provided that
any one who brought about the election of such a magistracy might be put
to death with impunity,[1450] and is alleged to have been reinforced by a
Duillian plebiscite of the same year, which set the penalty of scourging
and death for the same offence.[1451] These regulations could not refer
to the dictatorship, which was appointive not elective, and which
continued to possess absolute jurisdiction for more than a century after
the decemviral legislation.[1452]

But legal rights by no means imply actual enjoyment; and the decemviral
laws of appeal must have long remained substantially inoperative through
lack of a power sufficiently interested in their enforcement; “the might
of the few was stronger than the liberty of the commons.”[1453] The
right was limited, too, by the first milestone,[1454] and hence did not
affect the imperium militiae.[1455] The only punishment of a magistrate
for refusal to grant an appeal even by the Valerian law of 300, was to
be deemed wicked.[1456] Furthermore the oft-recurring dictatorship was
unrestricted by the law, being in this respect a temporary restoration of
the regal office.[1457] Not till after the enactment of the last Valerian
statute did the people begin to enjoy in fact the privilege which had
long been constitutionally theirs. The enforcement of the law, as in
general of the rights of the citizens, was chiefly due to the plebeian
tribunate, “the only sure protection even of oppressed patricians,”[1458]
but itself a limitation on the jurisdiction of the assembly.[1459] At
some unknown date after 325[1460] the dictator’s authority within the
city was subjected to appeal; and it has accordingly been suggested that
this limitation was due to the Valerian law of 300.[1461]

The practical establishment of the right of appeal ordinarily led the
magistrate in the exercise of his disciplinary power to substitute light
fines and imprisonment, which he had full power to enforce, for the
heavier penalty of scourging.[1462] But in case of crimes, especially
perduellio and parricidium, public sentiment compelled him to prosecute
the accused to the full extent of the law. In the former accusation the
consul of the early republic appointed duumviri perduellioni iudicandae
for each case as it arose.[1463] This office is obscure because, without
being formally abolished, it fell early into disuse, its function
passing to the tribunate of the plebs. Of the three cases attributed by
the sources to these duumviri, that of Horatius[1464] belongs to the
regal period, and is a mythical prototype of the republican procedure.
The offence has the appearance of parricidium. Only by the broadest
interpretation could perduellio be made to cover the murder of a
sister.[1465] The second case is that of M. Manlius, 384, according
to the more credible account,[1466] whereas Livy[1467] himself is of
the opinion that the prosecutors were the plebeian tribunes. We may
conclude, then, that the duumviri were still employed at this date.[1468]
The third case is an unsuccessful attempt in 63 to revive the office
for the trial of C. Rabirius.[1469] The first republican law of appeal
must have empowered the comitia to order the appointment of these
officials by the magistrate;[1470] and it seems probable that at a later
date unknown to us they began to be elected by the people.[1471] The
function of the duumviri was to try the case and pronounce sentence, from
which if condemnatory the accused had a right to appeal to the comitia
centuriata.[1472] From the analogy offered by the questorian procedure we
may infer that the duumviri requested from a higher magistrate permission
to take auspices for that assembly, over which they presided in the final
trial.[1473]

All capital crimes committed by a citizen against another were in a
similar way referred by the consuls to the quaestores parricidii as
their deputies.[1474] The activity of these officials is first mentioned
by the annalists in connection with the trial of Sp. Cassius, not for
murder but for perduellio.[1475] Lange’s[1476] explanation that the
quaestors were appointed duumviri for the trial would satisfy all
requirements; yet in myths of this kind we need not expect absolute legal
consistency.[1477] According to another, perhaps even earlier, version he
was tried and condemned at home by his father.[1478] The second instance
is the trial of M. Volscius, 459, for false testimony,[1479] which was
likewise a capital crime. Their judicial competence was recognized by
the Twelve Tables;[1480] and two capital cases are assigned to their
jurisdiction after the decemvirate, (1) that of Camillus on an accusation
variously stated by the ancient authorities;[1481] he avoided capital
prosecution before the centuries by retiring into exile, and in his
absence was condemned by the tribes to a fine of 15,000 or perhaps
100,000 asses: (2) that of T. Quinctius Trogus brought by the quaestor M.
Sergius,[1482] which must have taken place after 242.[1483] The reason
for the fewness of the known cases is to be sought in the circumstance
that their jurisdiction was substantially limited to common crimes,
whereas political crimes came at first before the duumviri and afterward
before the tribunes of the plebs.[1484] The criminal jurisdiction of
the quaestors must have continued till the institution of standing
quaestiones.[1485]

While the importance of the comitia centuriata as a criminal court was
enhanced by the lex Valeria Horatia and the Duillian plebiscite of 449,
which prohibited the election of a magistrate with absolute jurisdiction,
the number of officials competent to bring capital actions before this
assembly was increased as a result of that law of the Twelve Tables which
enacted that all resolutions concerning the caput of a Roman citizen
should be offered to the centuries only.[1486] Thereafter the tribunes
were required to prefer their capital accusations before this assembly,
for the summoning of which they, like the quaestors and the duumviri
perduellioni iudicandae, requested the auspices of a higher magistrate,
ordinarily after 367 of a praetor.[1487] For a time, probably till
the Hortensian legislation, they were dependent upon the patrician
magistrates for this privilege.[1488] According to our sources the
tribunes, with the approval of the consuls,[1489] entered upon their new
sphere of judicial activity by bringing a capital charge against Appius
Claudius and Sp. Oppius, past decemvirs, for misconduct in office, the
specific charge being the abuse of justice in the interest of a person or
of a party.[1490] The suicide of the accused prevented the trial. On the
eight remaining decemvirs they passed in the same assembly a sentence of
exile.[1491] M. Claudius, too, condemned for false testimony, was exiled,
the death penalty being mitigated also in his case.[1492] The tribunes
of 439 are said to have accused L. Minucius and C. Servilius Ahala for
the part they had taken in the death of Sp. Maelius, and two years
afterward Servilius was sentenced to exile by the comitia centuriata, to
be recalled later by the same body. The charge against the former was
false testimony, against the latter the putting to death of a citizen
who had not been legally sentenced.[1493] Livy next mentions a charge,
probably of perduellio, brought by the tribunes against Q. Fabius, 390,
for having, in violation of the ius gentium, fought against the Gauls
while he was an ambassador to them. He, too, is said to have died before
the trial.[1494] All these cases are uncertain. If historical, they
may represent the beginnings of capital jurisdiction of the tribunes,
in rivalry with the duumviri; or they may in reality, like the case
of M. Manlius, 384, already mentioned, have been duumviral. On either
alternative they came before the centuriate comitia.

As we approach firmer historical ground, we hear of three accusations
of unnatural lust alleged to have been brought by the tribunes of the
plebs before the same comitia: (1) that against L. Papirius, 326,[1495]
(2) that against L. or M. Laetorius Mergus, a military tribune, quod
cornicularium suum stupri causa appellasset,[1496] (3) the case mentioned
by Pliny and others against a person of unknown name, which probably
belongs to this period.[1497] The second case seems to be a trial of
official accountability, which fell within tribunician jurisdiction
according to the usage of historical time; the others are too little
known to be legally formulated.

In this period falls the attempted prosecution of Appius Claudius Caecus,
310, on the ground that he had not laid down the censorship at the end of
the limit of eighteen months.[1498] The accusing tribune ordered him to
be seized and imprisoned, but three colleagues interceded.[1499] About
the same time M. Atilius Calatinus was unsuccessfully prosecuted on a
charge of having betrayed Sora,[1500] probably in connection with the
defection of that town to the Samnites in 315.[1501]

In reviewing the cases said to have been brought by tribunes before
the comitia centuriata it is surprising to find the period from the
institution of the office to the trial of Q. Fabius, 390, swarming with
such prosecutions, whereas for the century intervening between that date
and the Hortensian legislation comparatively few cases are recorded and
those of little significance.[1502] These circumstances tend to prove
that the cases assigned to the earlier and less known period either
belong mostly to the jurisdiction of the duumviri or of the quaestors
rather than of the tribunes, or are in great part mythical, and that
the tribunes, therefore, exercised no extensive capital jurisdiction
before the enactment of the Hortensian law.[1503] We are led thence to
the conclusion that either by an article of the statute of Hortensius or
at least as a recognized consequence of the high place in the government
assured the tribunes by it, the jurisdiction of these magistrates in
political cases was freed from every restraint. At this time they
succeeded wholly to the place of the duumviri. The cases of which the
tribunes had cognizance were thereafter exclusively political, whereas
the questorian jurisdiction was confined to murder and other common
crimes. This distinction was not a limitation upon the power of the
tribunes, who if they chose might have superseded the quaestors as
easily as they had superseded the duumviri. It was rather a division
of functions adopted by the tribunes themselves in view of their own
political character and on the basis of the relative dignity of the two
offices. The chief judicial function of the tribunes, accordingly, was to
hold officials responsible for their administration, though occasionally
they called private persons to account for their conduct as citizens. All
grades of officials were within their jurisdiction, but most of the cases
were against the higher magistrates.

The first tribunician case of the kind after the Hortensian legislation,
and the first which is absolutely free from historical doubt, is that
brought against P. Claudius Pulcher on the ground that as consul, 249,
he fought the naval battle off Drepana contrary to auspices, thereby
losing his fleet. After the comitia had been interrupted by a storm, the
intercession of colleagues against the resumption of the trial saved him
from the death penalty. As the result of a new trial before the tribes,
however, he was fined 120,000 asses, 1000 for each ship lost.[1504]
His colleague, L. Junius, by suicide escaped condemnation on a charge
of perduellio.[1505] In 212 two tribunes of the plebs prosecuted M.
Postumius Pyrgensis, a publican, before the tribes for fraud, setting
the penalty at 200,000 asses; but the accused with his friends violently
broke up the assembly, whereupon the tribunes, dropping the original
charge, prosecuted him for perduellio,[1506] we should suppose before the
centuries.[1507] Among the complaints urged against him by the consuls
in the senate were that “he had wrested from the Roman people the right
of suffrage, had broken up a concilium plebis, had reduced the tribunes
to the rank of private persons, had marshalled an army against the Roman
people, seized a position, and cut the tribunes off from the plebs,
and had prevented the tribes from being called to vote.” Specifically
the crime must have been perduellio.[1508] Before the day of trial he
withdrew into exile. In his absence the plebs on the motion of Sp.
and L. Carvilius decreed that he was legally in banishment, that his
property should be confiscated, and that he should be interdicted from
fire and water. In this connection it should be noticed that whereas the
banishment of a citizen by lex or iudicium was the exclusive right of the
centuries,[1509] the tribes were competent to decree him an exile after
his voluntary retirement.[1510] Some of the coadjutors in the violence
of the publican above mentioned left their bail and followed him into
exile; others were imprisoned to await capital trial, with what result
the historian does not inform us.[1511]

In the same year Cn. Fulvius, a praetor, met with military reverses
through gross cowardice,[1512] and in the following was prosecuted in a
finable action by a tribune of the plebs for having corrupted his army
by the example of his unsoldierly habits. Finding in the course of the
trial that the fault of the magistrate was far more serious than had
been imagined, and that the people were in a temper to vote the extreme
penalty, the prosecutor changed the form of accusation to perduellio
on the ground that such cowardly conduct in a commander threatened the
existence of the state. In this instance, too, the accused avoided trial
by withdrawing into exile.[1513] In 204 by a decree of the senate a
special commission, consisting of the praetor for Sicily with a council
of ten senators,[1514] was appointed for the trial of a legate of
Scipio, Q. Pleminius, on the charge that he had robbed the temple of
Persephone in Locri and had violently oppressed the Locrians.[1515] The
commission brought him and his accomplices in chains to Rome and cast
them in prison to await their trial for life before the centuries.[1516]
The day of trial was continually deferred, till finally Pleminius, now
charged with the instigation of a plot to burn the city, was put to
death in prison.[1517] The fate of his accomplices is unknown.[1518]
Livy[1519] remarks that while Pleminius was languishing in jail the
wrath of the populace gradually changed to sympathy, to such an extent
doubtless as to convince the authorities of their inability to secure a
popular verdict in favor of the death penalty. In fact since the death
of M. Manlius Capitolinus, 384, no example of the execution of a death
sentence pronounced by the assembly is recorded in history.[1520] But
the magistrate probably often inflicted corporal punishment in violation
of the third Valerian law. To put an end to this abuse, and at the same
time to embody in legal form the popular feeling against the application
of the death penalty to citizens, a Porcian law absolutely forbade the
scourging or slaying of a citizen under the imperium domi, the article
prohibiting the sentence of death being afterward reënforced by other
enactments.[1521] There has been much discussion as to the authorship
of this law; probably it was the work of M. Porcius Cato the Elder in
his praetorship, 198.[1522] Another Porcian law, probably of P. Porcius
Laeca, praetor in 195, extended the right of appeal to Roman citizens
who were engaged in the affairs of peace outside the city, in Italy and
the provinces, and were therefore under the military imperium.[1523]
According to this law the citizen who appealed was sent to Rome for trial
by the appropriate civil authorities. Still later the third Porcian law,
which Lange[1524] conjecturally assigns to L. Porcius Licinus, consul in
the year of the elder Cato’s censorship, 184, seems to have been passed
for the benefit of Roman soldiers. We learn from Polybius,[1525] who
wrote later than the date last mentioned, that the military tribunes
were accustomed in court-martial to condemn common soldiers for neglect
of sentinel duty and that the condemned were cudgeled and stoned, often
to death, by their fellow-soldiers. He also speaks of the punishment of
entire maniples by decimation. Under Scipio Aemilianus, 133, the Roman
who neglected duty was flogged with vine stocks, the foreigner with
cudgels.[1526] Cicero[1527] intimates that in his own time there was no
appeal from the judgment of commanders; and in fact it is impossible to
understand how discipline could otherwise be maintained. Evidence to the
contrary is scant and uncertain. The person against whom an accusation
of desertion was brought before the tribunes of the plebs in 138 seems
to have claimed to be a civilian, and on that ground appealed to the
tribunes. When proved guilty he was flogged and sold as a slave, probably
by a judgment of the military authorities.[1528] In 122 Livius Drusus
proposed to exempt Latin soldiers from flogging.[1529] While informing
us that in 108 a commander had a right to scourge and put to death a
Latin official, Sallust[1530] intimates that he had less authority over
a Roman. In the time of the emperors, on the other hand, soldiers were
subject to the death penalty as in the time of Polybius.[1531] All
these circumstances may be best explained by supposing that the third
Porcian law permitted the infliction of flogging and death on Roman
soldiers by the judgment only of a court-martial.[1532] This difficult
subject is further complicated by the statement of Cicero[1533] that
the three Porcian statutes introduced nothing new excepting by way of
penalty. Interpreted in the light of other information given by various
authors, including Cicero himself, these statutes simply extended the
right of appeal by adapting the Valerian principle to new conditions,
and substituted exile in place of scourging and death. In the relation
between the accused and the civil court the cry “civis Romanus sum” was
thereafter a sufficient protection from bodily injury.[1534]

In the period to which the Porcian laws belong falls the accusation of
perduellio brought by the tribune P. Rutilius Rufus against the censors
C. Claudius and Ti. Sempronius Gracchus, while they were in office, 169.
The charge against Gracchus was disregard of the tribunician auxilium,
against his colleague the interruption of a concilium plebis (quod
contionem ab se avocasset). The accused, foregoing the privilege of
their magistracy, consented to a trial, which came before the comitia
centuriata. Claudius narrowly escaped condemnation, whereupon the case
against Gracchus was dropped.[1535]

The increasing number of special judiciary commissions and the
institution of standing courts limited more and more the judicial
activity of the centuriate assembly; but the tribunes of the plebs kept
alive the feeling of popular sovereignty in this sphere by the occasional
prosecution of some notorious offender.[1536] The continuance of the
centuriate judicial function is proved by the Cassian plebiscite of 137,
which provided for the use of the ballot in all iudicia populi excepting
in perduellio,[1537] and by the lex Caelia, 108, which removed the
exception.[1538]

The limitation upon popular jurisdiction by the special court is said
to have begun as early as 414, when, according to Livy,[1539] a senatus
consultum authorized the appointment of a quaestio extraordinaria to
discover and punish the murderers of M. Postumius, a tribune of the
soldiers with consular power. The plebs, consulted as to the presidency
of the court, left it to the consuls. The instance may be an anticipation
of later usage. The case of wholesale poisoning by Roman matrons, 331,
was investigated, and a hundred and seventy matrons were condemned,
by an extraordinary court, which evidently owed its existence to a
senatus consultum without the coöperation of the people.[1540] The
same is true of the quaestio appointed by the senate under dictatorial
presidency in 314 to inquire into charges of conspiracy of the leading
men in certain allied states. The dictator extended the inquiry to
Rome, and after his resignation the consuls continued the work. Livy’s
account of this affair assumes that the senate had full power to appoint
such commissions.[1541] It did in fact possess the right without the
coöperation of the people to institute quaestiones extraordinariae for
the trial of allies or other aliens in crimes which menaced the security
of Rome. In the period between the Hortensian legislation and the Gracchi
in two recorded instances it dared on its own responsibility to appoint
such courts for the trial of citizens.[1542] These were usurpations; for
as the laws of appeal forbade the putting to death of a citizen unless
condemned by the people, a special court with capital jurisdiction
over citizens could not be constitutionally established excepting with
the consent of the assembly. This right of the people was considered a
legislative equivalent of their judicial power, which the vast expansion
of their state made it impossible for them directly to exercise.[1543]
The court which tried and condemned the insurgent garrison of Rhegium
in 270 was instituted accordingly by a plebiscite authorized by a
senatus consultum.[1544] Most probably the court in this case was the
senate itself, just as in 210, when the plebiscite of L. Atilius gave
it full power to judge and punish the Campanians for revolt.[1545] The
appointment of special courts for the detection and punishment of aliens
for illegal usurpation of the citizenship, which belonged originally to
the senate, began in 177 to be shared by the people.[1546]

Similar in character to the special judiciary commission appointed by
the senate, but far more sweeping in effect, was the senatus consultum
ultimum (“videant consules, ne quid respublica detrimenti capiat”),
which in crises armed the consuls with absolute power of life and death
over the citizens.[1547] By these means the senate at its pleasure
circumvented the laws of appeal on the plea that the accused had
ceased to be citizens.[1548] Against this abuse Ti. Gracchus planned
a new law of appeal, which he did not live to see enacted.[1549]
His own followers were ruthlessly condemned without the privilege
of appeal by an extraordinary quaestio under P. Popillius Laenas,
consul in 132.[1550] Probably a similar court was appointed after the
revolt of Fregellae.[1551] To put an end to such circumvention of a
well-established right of the people, C. Gracchus in his first tribunate,
123, carrying into effect the plan of his brother, passed the often
mentioned lex Sempronia de provocatione, which absolutely forbade capital
sentence upon a citizen without an order of the people.[1552] The
wording indicates that it was intended not to do away with extraordinary
courts and powers, but to allow their establishment in no other way than
by popular vote.[1553] It reiterated, too, the article of the Porcian
statute which absolutely forbade the infliction of the death penalty on
civilians.[1554] Far, however, from transferring the jurisdiction of
the assembly to the quaestiones, the Sempronian law evidently confirmed
the right of the people by enacting that the tribunes might bring the
violator of that law before the comitia on a charge of perduellio, for
which it mentioned the penalty of interdict from fire and water.[1555] It
held responsible not only the magistrate charged with the extraordinary
commission, but probably also the senator who moved or supported the
measure which called it into being.[1556] The entire Sempronian law was
made retroactive, so as to cover the case of Popillius, who thereupon
fled into exile to avoid trial. The interdict was accordingly decreed
by the tribes on the motion of Gaius.[1557] Rupilius, the colleague of
Popillius, seems to have suffered a similar punishment.[1558]

In 120 the tribune Decius prosecuted for perduellio L. Opimius, who,
as consul in 121, armed with the senatus consultum ultimum, had caused
the death of C. Gracchus. The accused was acquitted.[1559] Ihne[1560]
considers this prosecution to have been instigated by the optimates
in order to settle once for all and in their favor the question as to
the legality of special courts which were called into being by an act
of the senate alone. In that case acquittal was a foregone conclusion.
In 119 the popular party met with greater success in the prosecution of
C. Papirius Carbo, whom it hated as a renegade.[1561] The charge was
probably perduellio, though the details are unknown.[1562]

The jurisdiction of the comitia in criminal cases suffered more extensive
curtailment from the standing courts,—quaestiones perpetuae,—the first
of which was established in 149 for the trial of Roman officials accused
of extortion—repetundae—committed in the provinces or in Italy.[1563] As
the object of the prosecutors was in the main the recovery of extorted
property, the court was essentially civil, and seemed, therefore, to
the Romans no infringement of popular rights; yet even before Sulla
the principle began to apply to distinctly criminal cases.[1564]
Notwithstanding this development several accusations were brought
before the centuriate assembly in the period between the Gracchi and
Sulla.[1565] The latter increased the number of quaestiones to seven and
brought all crimes within their cognizance. The questorian jurisdiction
in cases of murder had already passed to the quaestio inter sicarios,
established between 149 and 141;[1566] and now Sulla transferred cases
of perduellio from the jurisdiction of the tribunes to the quaestio
maiestatis.[1567] Although restored to the tribunes in 70, it was for the
remainder of the republican period exercised by them on special occasions
only, for the quaestio maiestatis still existed. With the establishment
of the principate the jurisdiction of the people finally vanished.[1568]

The revolutionary character of the period after Sulla is illustrated
by the case of perduellio against C. Rabirius[1569] brought in 63 by
a tribune of the plebs, T. Atius Labienus. Rabirius was charged with
complicity in the murder of L. Appuleius Saturninus, the famous tribune
of the year 100. Labienus proposed and carried a plebiscite requiring the
praetor to appoint duumviri for the trial, whereas it was generally held
at the time that these officials should have been elected by the people.
It was also enacted, in violation of the Porcian and Sempronian laws,
that in case of conviction the accused should be crucified on the Campus
Martius. C. and L. Caesar, appointed duumviri, brought the case before
the comitia centuriata, which were prevented from giving their verdict
by the removal of the flag from Janiculum.[1570] The object of the trial
was not to punish the guilty, but to discredit the senate, to which the
accused belonged.[1571] The decline of the idea of popular sovereignty is
further indicated by the agrarian rogation of the tribune P. Servilius
Rullus, 63, an article of which, in violation of the lex Valeria Horatia
de provocatione, ordered the appointment of decemviri agris adsignandis
without appeal.[1572]

The procedure was the same in all finable and capital actions. In a
case subject to appeal the magistrate, after a preliminary inquiry
(quaestio), summoned the people to contio on the third day[1573] for a
thorough examination (anquisitio).[1574] The trumpeter blew his horn
before the door of the accused, and cited him to appear at daybreak in
the place of assembly.[1575] Acting as accuser, the magistrate addressed
the contio and produced his witnesses. Then came the witnesses for the
defence, the statement of the accused, and the pleading of his counsel.
These proceedings filled three contiones separated from one another by
a day’s interval. At the end of the third day’s session the magistrate
acquitted the accused or condemned him and fixed the penalty. In case
of condemnation, the accused if dissatisfied appealed. The magistrate
then put his sentence in the form of a rogation and set a date for the
comitia,[1576] which could be held only after an interval of a trinum
nundinum,[1577] unless the accused desired an earlier trial.[1578]
Some scholars, however, hold the theory that a magistrate, recognizing
the limitation of his competence, might bring the case directly to the
comitia without the formality of a condemnation and appeal.[1579] The
penalty proposed in the rogation was not necessarily the same as at
first announced; for the trial might bring to light facts to mitigate or
to aggravate the sentence. The presentation of the case to the comitia
by the magistrate was termed the fourth accusation.[1580] If anything
prevented the voting in the comitia, the accused was discharged,[1581]
and could not be legally brought to trial again for the same offence
excepting under a different form of action.[1582]

    Schulze, C. F., _Volksversammlungen der Römer_, 307-40;
    Hüllmann, K. D., _Staatsrecht des Altertums_, 334-54; Huschke,
    Ph. E., _Verfassung des Königs Servius Tullius_, chs. vii, xi;
    Wöniger, A. T., _Sacralsystem und das Provocationsverfahren der
    Römer_; Peter, C., _Epochen der Verfassungsgeschichte der röm.
    Republik, mit besonderer Berücksichtigung der Centuriatcomitien
    und der mit diesen vorgegangenen Veränderungen; Studien zur
    röm. Geschichte_, 54 ff.; Schwegler, A., _Röm. Geschichte_,
    see index, s. Centuriatcomitien; Ihne, W., _History of Rome_,
    iv. 10 ff.; Mommsen, _Röm. Staatsrecht_, iii. 300 ff.; _Röm.
    Strafrecht_, 151-74, 473-8, 632-5; Mommsen and others, _Zum
    ältesten Strafrecht der Kulturvölker_, especially 31-51 by H.
    F. Hitzig; Lange, L., _Röm. Altertümer_, ii. 516-33, 541-65,
    597-613, see also indices of vols. i-iii, s. v.; Madvig, J.
    N., _Verfassung und Verwaltung des röm. Staates_, i. 226-34;
    Herzog, E., _Geschichte und System der röm. Staatsverfassung_,
    i. 1068-1119, see also index, s. v.; Willems, P., _Droit
    public Romain_, 159 f., 172, 176 ff.; Mispoulet, J. B.,
    _Institutions politiques des Romaines_, i. 203-7; _Études
    d’institutions Romaines_, 63-6; Liebenam, W., _Comitia_ II,
    in Pauly-Wissowa, _Real-Encycl._ iv. 686-700; Humbert, G.
    (s. _Comitia_), in Daremberg et Saglio, _Dict._ i. 1378 f.;
    Voigt, M., _XII Tafeln_, i. 673-82; ii. 781-845; Karlowa, O.,
    _Röm. Rechtsgeschichte_, i. 409; Girard, P. F., _Histoire de
    l’organisation judiciaire des Romains_, i. 104-59; Usener, H.,
    _Italische Volksjustiz_, in _Rhein. Mus._ lvi (1901). 1 ff.;
    Müller, A., _Strafjustiz im röm. Heere_, in _N. Jahrb. f. kl.
    Altertum_, xvii (1906). 550-77; Vassis, Sp., _Leges valeriae de
    provocatione_, in _Athena_, xvii (1905). 160-5; Küspert, O.,
    _Ueber die Bedeutung und Gebrauch des Wortes ‘Caput’ im älteren
    Latein_; Dupond, A., _De la constitution et des magistratures
    Romaines sous la république_, 67-74; Moye, M., _Élections
    politiques sous la république Romaine_; Hallays, A., _Comices
    à Rome_, ch. ii; Morlot, E., _Comices électoraux_, ch. vi;
    Kappeyne van de Coppello, J., _Comitien_, 105-7; Borgeaud,
    C., _Histoire du plébiscite_, 45-57; Pantaleoni, D., _Della
    auctoritas patrum nell’ antica Roma_; Greenidge, A. H. J.,
    _Legal Procedure of Cicero’s Time_, see index, s. Centuriata
    Comitia, Lex, Provocatio, etc.; _Roman Public Life_, 75, 252
    f., 255; Abbott, F. F., _Roman Political Institutions_, 253-9;
    Wirz, H., _Perduellionsprocess des C. Rabirius_, in _Jahrb. f.
    Philol._ xxv (1879). 177-201; Mirabelli, G., _Di un processo
    politico avvenuto negli ultimi tempi della republica Romana_;
    Schulthess, O., _Der Process des C. Rabirius vom Jahre 63 v.
    Chr._; Baron, in _Berl. Philol. Woch._ 1893. 658-60.




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, originally two,
were instituted in 494 as a concession to the seceding commons to win
them back to the state.[1583] 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.[1584] The change in the form of
organization in 471, from curiate to tribal, will be considered below.
The president of the comitia which elected the first plebeian tribunes
was necessarily a patrician magistrate,[1585] probably the pontifex
maximus;[1586] 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 business and for the enactment of plebiscites (plebi scita).

The object of the office of tribune was the protection of individual
citizens, plebeian and patrician alike,[1587] from oppression; and the
means was the auxilium (official aid),[1588] which could be rendered
in no other way than by personal contact; hence the law prohibiting a
tribune from being absent over night from the city[1589] and requiring
him to leave the door of his house open during the night.[1590] In the
further interest of the citizens the tribunes had the unrestricted 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, plebiscites being from the beginning
binding on the plebeian body in so far as they harmonized with the laws
of the state.[1591]

These were the two original functions from which the vast powers of the
later tribunes gradually developed. As strictly plebeian officials they
had no authority to summon patricians, to exclude them from the place
of assembly,[1592] or to condemn them judicially.[1593] It follows that
their alleged prosecutions of past consuls for maladministration[1594]
are fictions[1595]—an anticipation of their jurisdiction at a later age.
Directly they possessed no power of judgment or of coercion;[1596] 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,[1597] 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.[1598]
The avenger was necessarily either a private plebeian or an official of
the plebs.[1599] 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 of plebs, (2) that
the offender against it became a homo sacer and could be put to death
with impunity.[1600] This idea of sanctity the plebeians may have derived
partly from the Greek asylum;[1601] 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 institutions as based on a treaty ratified with fetial ceremonies
between the patrician government and the seceding plebs.[1602] 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 acknowledging the sanctity of their officials;
so that the patricians, by asserting that Roman law did not recognize
an inviolability founded purely on religion,[1603] could afterward deny
that the tribunes were really sacrosanct. Till the enactment of the
Valerian-Horatian laws of 449,[1604] accordingly, the inviolability of
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 preserved should be credited to the
orderly character of the great mass of citizens.

Applied to the holding of contiones and comitia, this inviolability
protected the presiding tribune from interruption, contradiction, and
every disturbance. The principle was afterward extended to verbal abuse
anywhere publicly indulged in.[1605] 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.[1606] Under normal
conditions, however, the rigorous 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 formulated in an alleged
Icilian plebiscite of the year 492.[1607] From what has just been said
it is clear that the tribune’s coercive[1608] and judicial functions
resulted, not from usurpation as has often been asserted,[1609] 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 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 mythical; 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 Coriolanus, the
accused, had advocated in the senate the abolition of the tribunician
office,[1610] 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 officials. Instead of declaring him
a homo sacer, a tribune brought him to trial before the tribes, which
condemned him by a narrow majority.[1611] 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.[1612]

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.[1613] After providing sureties the accused
went into exile,[1614] and the sentence of banishment was passed—in
Cicero’s opinion by the comitia centuriata, in Livy’s by the tribal
comitia of plebs, 461.[1615] 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.[1616] Naturally 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 sacrosanctitas, so far as it existed,[1617] might protect the
person of the tribune, it gave him no authority over a patrician;[1618]
and their position as the sole holders of political power and the
sole repositories of law and usage enabled them before the decemviral
legislation by stubborn, skilful perseverance in the details of political
warfare almost to throw the tribunician sanctity into oblivion.[1619]
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.[1620] Dio Cassius[1621] 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 recognized 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 appealed 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 affecting the caput of a citizen should be brought only
before the comitiatus maximus—evidently the comitia centuriata.[1622]

If the tribunes presumed to condemn men to death, they certainly 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.[1623] In the opinion of Dionysius[1624] 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 proposers may not have so intended it.[1625]

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 government though probably
not recognized by it as just or constitutional. For the same period
their method of agitation by the obstruction of the levy,[1626] by
haranguing the people in contiones,[1627] and occasionally by sedition,
proves clearly the lack of legislative 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, 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 rendered himself
liable to tribunician prosecution.[1628] 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 competence 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.[1629] 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 compel them to bring it before the
centuriate assembly in regular form.[1630]

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,[1631] which however
may not have been free from agitation of the kind.

A law of the year 471 gave the tribunician assembly a tribal
organization. This measure, brought about by the agitation of Publilius
Volero, tribune of the plebs of that year,[1632] must, for the reason
above mentioned, have been an act of the comitia centuriata.[1633] The
motive given by Livy was the desire of the tribunes to free themselves
from the influence which the patricians through the votes of their
clients exercised on the assembly.[1634] The curiae contained all
the citizens,[1635] the tribes none but the landowners. The tribal
organization, therefore, excluded not all the clients but those only,
together with any other citizens, who were landless.[1636] 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[1637] that the essence of the change from the curiate to the
tribal comitia consisted in the elimination of auspical influence. That
the law forbade the patricians to take part in tribunician assemblies, as
Zonaras[1638] 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.[1639] In fact we have evidence of the
presence of patricians in tribunician assemblies after this date.[1640]
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.[1641]

The statute of 471 imparted to the tribunician assembly no new function.
Although in mentioning the bill Dionysius[1642] includes a proposal to
grant the assembly legislative power, 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.[1643]

In the same year four tribunes of the plebs were elected for the first
time.[1644] The increase was probably effected by an article of the
statute under discussion.

Till after the decemviral legislation the comitia tributa,[1645]
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[1646] and condemnations of retired
magistrates.[1647] In reality the only political weapon of the tribunes,
aside from general agitation, continued to be the obstruction of the
levy,[1648] as is proved by their increase in number to ten.[1649]
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.[1650] The very circumstance that this mild concession to the
plebs was couched in a lex sacrata[1651] shows how little faith the
commons had in the government.[1652]

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.[1653]
These acts imply legislative as well as administrative competence.
Foreign affairs,[1654] including the decision of war and peace, were in
its hands. It resolved not to restore the property of the Tarquins,[1655]
decreed triumphs to victorious generals,[1656] the celebration of
games,[1657] the expulsion of the Volscians from the city in the time
of a festival,[1658] controlled the magistrates, including the plebeian
tribunate, by means of the dictatorship,[1659] or clothed the consuls
with absolute authority.[1660] Little room was left for the activity of
the assemblies.

Notwithstanding these unfavorable conditions the tribunes of the
plebs through obstruction of the levy and through their harangues
in contiones[1661] were chiefly instrumental in bringing about the
institution of the decemviri legibus scribundis. Actual votes in
tribunician comitia on proposals looking to that end[1662] could have had
no more than moral weight. Under popular pressure the consul Sestius,
452, referred the question to the senate,[1663] 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,[1664] and
the quasi-judicial decision of cases appealed to it by those who were
accused of violating the tribunician sanctity.[1665]

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[1666] 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.[1667] According
to Livy,[1668] who here represents the tribunician point of view, the
original lex sacrata, passed on the Sacred Mount, was first renewed with
appropriate ceremonies, thus reëstablishing the religious inviolability
of the plebeian officials, whom then the article of the Valerian-Horatian
statute here mentioned rendered legally inviolable. 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,
clothing them thus in the same kind of inviolability as that which
protected the ordinary magistrates.[1669] The object, according to this
view, was not only to eliminate from the government the anomaly of a
power sanctioned by religion only,[1670] but also to convert the plebeian
officials into state officials. The leaders of the plebs gladly accepted
the new position tendered them, without being willing however to withdraw
from the old. Henceforth we have to deal, accordingly, with a group
of legally recognized 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 should be
valid for the people”;[1671] 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 similar to a provision of the
later Publilian and of the still later Hortensian statute that we should
incline to reject it as an anticipation 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.[1672] 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.[1673] Dionysius[1674] 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[1675] thinks of them as still present in the tribunician meetings
as late as the struggle for the Licinian-Sextian laws. The problem must
be considered in connection with the development of the voting function
of the assembly. Primitively the leaders (nobles) in council decided
upon a measure, which they then submitted to the people to be accepted
with clamor and din.[1676] Although the acclamation was essentially an
act of the masses, nothing forbade the nobles to join in the shouting.
Doubtless in the tribal assemblies the expression of opinion within
the tribe continued for a time to be by acclamation.[1677] As long as
this primitive condition existed, a distinction 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;[1678]
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.[1679] Much less could they exclude the nobles.
If the presiding tribune 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 patricians 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 to exclude them,
attempted to establish the principle that tribunician assemblies were
exclusively plebeian. This question was settled by the law of Publilius
Philo, 339.[1680]

This article of the Valerian-Horatian statute was a concession extorted
from the patrician government by the strongest pressure, perhaps by a
plebeian secession. The actual advantage 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.[1681] The patricians could urge in support of this
arrangement that as their magistrates according to long established
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,[1682] 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 assumed by the sources for the
following period.[1683] The same thing is clearly implied, too, in the
long series of political struggles which came after the enactment of the
Valerian-Horatian statute.[1684] Had the tribunes been free to legislate
without 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).[1685]

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.[1686] We cannot look
upon these officials as keepers of the senatorial archives of that
time,[1687] and hence must conclude that the documents in their charge
were those decrees which authorized the presentation of tribunician
bills, for with those alone the plebeians were directly concerned.

The patricians expected to find a further safeguard in the tribunician
veto, which could be directed against a colleague.[1688] 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,[1689] we must infer that as yet their intercession did not
prevail against a patrician magistrate.[1690] Various popular seditions,
too, are mentioned for the same period (449-287).[1691] 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.[1692] Livy[1693] reports that in 293 the tribunes
resigned because of a faulty election, held probably 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).[1694] It had the advantage of the comitia centuriata
(1) in freedom from the impetrative 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
composition, 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 permission 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 forcing 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
enlarging the field of its activity.

    The following literature is for the whole period from 449 to
    287.

    Schulze, C. F., _Volksversammlungen der Römer_, 341-70;
    Hüllmann, K. D., _Staatsrecht des Altertums_, 354-67; Niebuhr,
    B. G., _Römische Geschichte_, i. 624 ff., Eng. 283 ff.;
    see also index, s. Tributcomitien; Schwegler, A., _Röm.
    Geschichte_, see index, s. Tributcomitien; Mommsen, Th.,
    _Röm. Staatsrecht_, iii. 300 ff.; _Röm. Forschungen_, i.
    151-66; _Röm. Strafrecht_, 462-8, 473-8, 1014-6, et passim;
    Ihne, W., _History of Rome_, bk. VI. chs. i, viii; _Ueber die
    Entstehung und die ältesten Befugnisse des röm. 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., _Röm.
    Altertümer_, i. 586-681, 821-56; ii. 459-94, 533-42, 565-97,
    613-42; _De legibus Porciis libertatis civium vindicibus_,
    in _Kleine Schriften_, i. 342-429; _De plebiscitis Ovinio et
    Atinio disputatio_, ibid. ii. 393-446; _Ueber das poetelische
    Gesetz de ambitu_, ibid. ii. 195-202; Kleineidam, F., _Beitr.
    z. 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 röm. Staates_,
    i. 234-46; Voigt, M., _XII Tafeln_, i. 683-90; Karlowa, O.,
    _Röm. Rechtsgeschichte_, i. 409; Girard, P. F., _Histoire
    de l’organisation judiciaire des Romains_, i. 149-59, 237
    ff.; Puchta, G. F., _Cursus der Institutionen_, i. (10th
    ed. 1893) 166-9 (on lex and plebiscite); Mispoulet, J. B.,
    _Institutions politiques des Romains_, i. 207-30; _Études
    d’institutions Romaines_, 66-81; Willems, P., _Droit public
    Romain_, 160 ff., 173 ff.; Greenidge, _Legal Procedure of
    Cicero’s Time_, 327-49; Herzog, E., _Geschichte und System der
    röm. Staatsverfassung_, i. 153 ff., 189-96, 216 ff., 248-64,
    279-88, 1128-88; _Glaubwürdigkeit 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 république Romaine_, 75
    ff.; Borgeaud, C., _Histoire du plébiscite_, 57-76, 117-67;
    Hallays, A., _Comices à Rome_, ch. iii; Morlot, E., _Comices
    électoraux sous la république Romaine_, ch. iv; Ptaschnik,
    J., _Die Wahl der Volkstribunen vor der Rogation des Volero
    Publilius_, in _Zeitschr. f. österreich. 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 473 U. C._ ibid. xxiii (1872). 241-53;
    _Stimmrecht der Patricier in den Tributcomitien_, ibid. xxxii
    (1881). 81-102; Ruppel, K. W., _Teilnahme der Patrizier an den
    Tributkomitien_; Soltau, W., _Gültigkeit der Plebiscite_, in
    _Berliner Studien_, ii (1885). 1-176; Clason, D. O., _Kritische
    Erörterungen über den röm. Staat_, 30-9; Schmidt, J., _Die
    Einsetzung der röm. Volkstribunen_, in _Hermes_, xxi (1886).
    460-6; Meyer, E., _Der Ursprung des Tribunats und die Gemeinde
    der vier 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., _L’origine e l’elezione
    dei tribuni e degli edili della plebe con un indice alfabetico
    dei loro nomi_; Podestà, G., _Il tribunato della plebe in
    Roma dalla secessione sul monte sacro all’approvazione della
    legge di Publilio Volerone_; Eigenbrodt, A., _De magistratuum
    Romanorum iure intercedendi_; Ackermann, H., _Ueber die
    raümlichen Schranken der tribunizischen Gewalt_; 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 Pauly-Wissowa,
    _Real-Encycl._ i. 448-64; Humbert, G., _Aedilis_, in Daremberg
    et Saglio, _Dict._ i. 95-100; Bloch, L., _Die ständischen
    und sozialen Kämpfe in der römischen 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 lois
    agraires sous la république Romaine_, pt. I. chs. i-iii; De
    Sanctis, G., _Storia dei Romani_, I. chs. xiii, xiv, 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.[1695] Defensive wars in behalf either of
Rome or of an ally were regularly decided upon by the senate;[1696] and
the question whether the war was necessary for the safety of the state
admitted of a broad interpretation.[1697] 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,[1698] 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;[1699]
and at the close of a conquest the senate disposed of the acquired
territory and population.[1700] Through its authority alone, till 332,
the censor bestowed the perfect or the limited citizenship.[1701]

In the affairs of peace it retained almost as absolute power of
administration as in the preceding period.[1702] We find it, accordingly,
authorizing a magistrate to vow games and the erection of a temple
in the event of victory,[1703] providing for the restoration of
the city after the Gallic conflagration,[1704] for the building of
temples,[1705] introducing pay for military service,[1706] levying
the taxes,[1707] dividing the public lands among the citizens,[1708]
founding colonies,[1709] and recalling under penalty of death those
who without permission had gone out to colonize a captured city,[1710]
directing the appropriate college to consult the Sibylline books,[1711]
and ordering the aediles to take measures against the inroad of foreign
superstitions,[1712] and the consuls to punish with rods and beheading
the instigators to revolt among the allies.[1713] 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,[1714] who had power to compel the
resignation of all other magistrates.[1715] Or the senate could directly
order the magistrates to retire from office, with or without a scruple
as to the auspices.[1716] It rewarded successful commanders with
triumphs[1717] at the expense of the state[1718] and in time of especial
danger it armed the consuls with absolute imperium.[1719] 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 the Valerian-Horatian and the Hortensian legislation will now be
followed.


I. _Elective_

Appreciating the great possibilities of the tribunate, the patricians
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.[1720] 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
coöpted into the college two patricians of consular rank.[1721] 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 coöptation.
The tribune who violated this law was to be burned alive.[1722] 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 coöptation 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,[1723] no result. Probability greatly favors the later date for
the law, especially as an instance of coöptation is mentioned between
the two dates;[1724] the name of Trebonius or of one or more patricians
in the college of 448[1725] 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, proceeded 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.[1726]

In granting the tribal assembly a share in law-making the senate 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 assembly for the election of quaestors
(447)—previously appointed by the chief magistrates[1727]—and afterward
of curule aediles (367),[1728] military tribunes,[1729] and other minor
officials.[1730]


II. _Judicial_


_a._ TRIBUNICIAN

By an arrangement referred to in the preceding chapter,[1731] partly
based on the law of the Twelve Tables relating to capital cases[1732] 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.[1733] The tribes
punished with fines, the centuries with the extreme penalty—banishment
or death, to which was always added total confiscation of property.
The prosecutor, accordingly, first thought of the penalty, to which he
then attempted to adapt the form of action. The people were not guided
to their decision by legal formalities and precedents,[1734] but were
often swayed by the emotions of favor and anger.[1735] 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
accordingly 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 himself 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.[1736] 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
Crassus passed a centuriate law establishing a hundred pounds of copper
as equivalent to an ox and ten to a sheep.[1737] Probably the same law
provided that no fine should exceed half the value of the estate on which
it was levied.[1738]

For the period immediately following 449 the authorities—uncritically
as will soon be made evident—assign to the tribunes of the plebs a
formidable jurisdiction in finable actions, not only over private
persons,[1739] but also, on account of official misconduct, over
functionaries of every grade from ambassadors 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.[1740] 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.[1741] In 401 two other retired tribunes with consular power
were prosecuted by the tribunes of the plebs and fined each 10,000
asses.[1742] The imposition of a fine on Camillus, 391, has already been
considered.[1743] 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.[1744] In 362 the dictator of the preceding year, L. Manlius, was
prosecuted by a tribune because, though appointed for the sole purpose of
driving the nail, he had nevertheless made a levy of troops and that with
extreme cruelty. But the prosecutor dropped the accusation, intimidated
by the son of the accused.[1745] This is the view of Livy, whereas
Cicero[1746] states the ground of the charge to have been the addition
of a few days to his dictatorship. If historical, the prosecution may
possibly have been for perduellio, 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.[1747]
Evidently the intention of the prosecutor was not serious.[1748] 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 continued 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[1749] 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.[1750]

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.[1751] This instance, if historical, is the only
one of the kind before the revolution. The tribunes doubtless felt that
the prosecution 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 prohibition of
privilegia by a law of the Twelve Tables, Sp. Maelius, a tribune of
the plebs in 436, tried to carry a resolution for the confiscation of
the property of Servilius Ahala; but the people rejected it.[1752]
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.[1753] It was certainly not supported by a senatus consultum,
and probably the proposers had no serious intention of carrying it into
effect.

In reviewing the finable actions alleged to have been brought by the
plebeian tribunes during the two centuries which intervened between the
institution of their office and the Hortensian legislation, as in the
case of the capital actions,[1754] 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 jurisdiction 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,[1755] depended upon the two plebeian aediles as bailiffs
for making arrests and for executing sentences.[1756] 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.[1757] The earliest
mentioned case, 454, is the trial and condemnation of a retired consul in
a finable action for official misconduct.[1758] It should be placed in
the same mythical category with the numerous tribunician prosecutions
of the period.[1759] After the institution of curule aediles, 367, the
aediles of the plebs continued indeed to serve occasionally as bailiffs
of the tribunes,[1760] 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.[1761] 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.[1762] 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;[1763] and two years afterward violators of the same
provision were again fined, on this occasion by the curule aediles.[1764]
Actions against usurers were brought by aediles in 344,[1765] 304,[1766]
and 295.[1767]

Shortly before 328, M. Flavius was prosecuted before the people by the
aediles for the crimen stupratae matris familiae, and acquitted.[1768]
In 295 Q. Fabius Gurges, a curule aedile,[1769] accused several matrons
before the people, also of stuprum, and fined them.

In the period between the Licinian-Sextian and the Hortensian
legislation, accordingly, the jurisdiction of the aediles, so far as is
known, was limited to usury, stuprum, and the violation of laws regarding
the occupation and pasturage of the public 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 equivalent, 3020 heavy asses,[1770] an appeal could be made
to the tribes. The plebeian aediles equally with the tribunes[1771]
lacked the power to summon patricians, whereas the curule aediles as
patrician magistrates[1772] possessed the right; but no distinction in
the composition of these tribal assemblies, corresponding to the form of
presidency, is suggested by the sources.[1773]


III. _Legislative_

The legislative function of the tribal assembly under tribunician
presidency after the decemvirate (451-450)[1774] is represented as
bringing forthwith into being the Icilian and Duillian plebiscites of
449. That of Icilius granted amnesty to those who had seceded from the
decemvirs.[1775] The first plebiscite of Duillius provided for the
election of consuls cum provocatione.[1776] Both acts are alleged to have
been passed, however, before the resolutions of the plebs had acquired
the force of law. The second Duillian plebiscite, which followed the
enactment of the Valerian-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 magistrate without appeal.[1777] Its first provision was merely
the expression of a principle on which the plebeians, had from the
beginning insisted as essential to the continuance of the office from
year to year;[1778] the second clause precluded the recurrence of an
elective magistracy like the decemvirate just past.[1779] According to
Diodorus[1780] an agreement was made in this year between 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 assigning this provision to so early a date.[1781]

For the same year is recorded another Icilian plebiscite, which granted
the privilege of a triumph to the consuls after the senate had refused
it.[1782] 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 constitutional 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.[1783] 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;[1784] but the
general always had a right to triumph, in earlier time within the city
and later on the Alban Mount, at his own expense.[1785] If the senate
decreed the triumph, as remained the rule,[1786] ratification by the
people was unnecessary, though it sometimes occurred.[1787]

The Trebonian plebiscite, 448 or more probably 401, has already been
discussed.[1788] The interest of the plebs in enhancing the dignity and
importance of their own order manifested itself not only in this act but
also in the Canuleian plebiscite of 445, which reëstablished conubium
between the patricians and plebeians after it had been forbidden by a law
of the Twelve Tables.[1789] 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.[1790]

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 quaestors.[1791] The question before
this assembly in 446 was the arbitration 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.[1792] This act did not serve as a precedent
for further interference of the assembly in foreign affairs; and when in
427 the people acquired the right to declare an offensive war,[1793] the
function fell to the centuries rather than to the tribes. Apart from this
gain the comitia made little progress[1794] in the period between the
Canuleian and the Licinian-Sextian legislation, 445-367. Few legislative
acts of the tribes are recorded: the plebiscite which provided in a
time of famine for the election of a prefect of the market, 440;[1795]
the historically questionable plebiscite which forbade candidates for
office to whiten their garments, 432;[1796] the plebiscite of 414 for
the creation of a special court to try a case of murder;[1797] the
act, probably a plebiscite, which forbade a patrician to dwell on the
Capitoline, 384.[1798]

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[1799] are historical. In like manner the leaders of the plebs, as
candidates for the consular tribunate, are represented as agitating for
the institution of pay for military service, the money to be derived from
rents of public lands.[1800] 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.[1801] Epoch-making were the Licinian-Sextian laws, the first, 368,
increasing the duoviri sacris faciundis to decemviri and providing that
five should be plebeian,[1802] the second, 367, containing in Livy’s
opinion four articles: (1) that one consul must be plebeian,[1803] (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,[1804] (4) that the right to pasture cattle and sheep on the public
land should also be limited.[1805]

Thereafter we find the tribal assembly more active in legislation. 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.[1806] The motive, however, which Livy attributes to the
author—to prevent the further enlargement 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.[1807] 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
sanction;[1808] and the legality of the measure was never called in
question.[1809] 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 following through the clientage
of their freedmen, to the disadvantage 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 plebiscite which threatened with the death penalty
any magistrate who held comitia away from the city.[1810] 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[1811]—thereby confirming a law of the Twelve
Tables[1812]—and five years later the consular law of 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).[1813] 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.[1814]

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 culminated 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,[1815] (2) by the plebiscite 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 time;(3) it allowed both consuls to be plebeian.[1816]
Although Livy, failing to find the Genucian law in all his sources,
hesitates to accept it as historical, there seems to be no cogent
ground for disbelieving that such a statute was actually passed.[1817]
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 themselves 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 unenforced for many years,[1818] whereas the
provision regarding two consuls had to wait more than a century for its
first practical application.[1819] 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.[1820]

Three years later the dictator Publilius Philo passed through the
centuriate assembly the statute (1) that plebi scita should be 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).[1821]
All three articles were alike aimed against the political dominance
of the patricians. The second freed centuriate legislation from their
control;[1822] the third[1823] 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.[1824]

The first article has substantially the same form as the corresponding
provision of the Valerian-Horatian statute, 449, and of the Hortensian,
287.[1825] 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 reënactment.[1826] The explanation 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 complaint 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 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 interpretation
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 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 principle involved was no longer remembered in the
age of Cicero.[1827]

The Publilian statute of 339 is not known to have provided for an
extension of the field of competence of the tribal assembly; 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,[1828] 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[1829]—a “foedus summae
religionis,” as Cicero declares.[1830] Even Livy, who aims to prove the
procedure defective, admits that the tribunes of the plebs[1831] and
Postumius,[1832] one of the consuls who made it, looked upon it as
legitimate. But according to Livy[1833] the senate itself declared the
treaty invalid on the ground that it lacked popular confirmation;[1834]
and in that body the principle was then enunciated that nothing which
was to bind the people could be sanctioned without their order[1835]—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 acceptance 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 conjunction.[1836] 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.[1837] But from the time
of the Caudine misfortune, and in consequence of it, the principle was
established that a treaty involving a concession of even equal rights
on the part of Rome required the sanction of a popular vote. Recorded
instances of such ratification for this period (321-287) are rare.[1838]
The function fell to the comitia tributa under patrician or plebeian
presidency, which in its exercise showed more independence[1839] 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.[1840]

The absolute power to bestow the citizenship exercised by the kings[1841]
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[1842] 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.[1843] In the whole course of Roman history to
332 there is no record of a grant of citizenship by popular vote.[1844]
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.[1845] In opinion of Lange,[1846]
based upon a statement of Velleius,[1847] 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 the tribes, ex auctoritate patrum,
granted the citizenship to the Privernates, 329.[1848] By what authority
the Hernicans received the civitas sine suffragio in 306 is not
stated.[1849] 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.[1850]
Logically the function should have fallen to the comitia centuriata as
the source of censorial power; but the tribal assembly assumed it because
of its connection with the making of treaties.[1851]

It was the province of the centuriate assembly to introduce permanent
regulations of existing magistracies and to institute new ones;[1852]
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 movement 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
Naples, instituting by this precedent the promagistracy.[1853] Again
in 295 the imperium of the consul Volumnius was prolonged for a year
by a decree of the senate ratified by a plebiscite.[1854] After the
custom had been established, however, the senate ordinarily attended
to the prolonging of the imperium, as in 308,[1855] in 296,[1856] and
in 294,[1857] consulting the people, as it seems, only in cases of
tribunician opposition.[1858] No instance of popular interference in
the assignment of provinces is mentioned before 295, when a resolution
of the comitia tributa, under what form of presidency is not stated,
granted Etruria to the patrician Fabius in preference to the plebeian
Decius.[1859] 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.[1860] Even in the
latter case the act of the people was a remarkable deviation from their
usual modest policy of dealing with officials.

In 318 a law, doubtless tribal, was passed for sending praefecti
iure dicundo to Capua;[1861] and similar laws were from time to time
enacted for assigning the same kind of officials to other communities
of Italy.[1862] These prefects continued to be appointed by the urban
praetor till after 124.[1863] Whether the law of 318 was pretorian or
tribunician cannot be determined.[1864] Similar in character was the
Atilian-Marcian plebiscite for the election of sixteen military tribunes
instead of six, 311.[1865] 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.[1866] Although the elective military tribunes
remained subordinate 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 fleet.[1867] 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.[1868]
Here, too, belongs the plebiscite of 296 for the appointment of
commissioners for conducting colonies.[1869] Henceforth 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.[1870]

The people made a further 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 censorship of Appius Claudius Caecus, 312,
belongs the famous Ovinian plebiscite concerning the revision of the
senate list.[1871] 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.[1872]

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,[1873]—they
began the practice of occasionally suspending laws to the advantage or
disadvantage of individuals or of classes—in other words, the voting
of privilegia.[1874] There were repeated violations of that article of
the Genucian plebiscite which forbade reëlection to an office within a
period of ten years,[1875] and no mention is made of the necessity of a
dispensation before the year 298, when Q. Fabius Maximus is alleged to
have objected to further reëlection 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 requirement.[1876] But in fact, as Lange[1877]
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.[1878] At all events the custom
of granting dispensations began about this time,[1879] 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 sovereignty. 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.[1880] The
aristocracy was giving way to a democracy, which under the conditions
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 precedent of
the Licinian-Sextian plebiscite on the decemviri sacris faciundis[1881]
and of other less important acts.[1882] 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,[1883] hence
necessarily to 338,[1884] belongs the consular lex Maenia, which added
to the Ludi Romani the day called instauraticius,[1885] although less
trustworthy accounts assign the establishment of this day to 491.[1886]
The law initiated by the senate in 304 forbidding the dedication of a
temple or altar except by permission of the senate or of a majority of
the college of tribunes[1887] was probably passed by the comitia tributa
plebis. In the opinion of Lange[1888] it was either identical with, or
afterward supplemented by, the lex Papiria tribunicia, which forbade the
consecration of a temple, precinct, or altar without an order of the
plebs.[1889] The latter is the more probable; it seems reasonable 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. Technically 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.[1890] 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[1891] and confirmed for the
centuries by the Valerian law of appeal in 300.[1892] The creation
of special judicial commissions—quaestiones 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 consultum.[1893] The task of trying and condemning the
matrons for poisoning in 331 must have fallen to such a quaestio
extraordinaria not expressly mentioned. Whether it was instituted by the
senate or the tribes cannot be known.[1894] The special quaestio, too,
concerning conspiracy, at first under dictatorial and afterward under
consular presidency, seems to have been instituted solely by a senatus
consultum.[1895] The Flavian rogation of 323 for punishing the Tusculans
for having given aid and encouragement to the enemies of Rome[1896] 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.[1897] 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.[1898]

The right of the people both in the centuries and in the tribes to
legislate on finance had before 339 been well established by precedent.
Economic as well as social in character was the lex Poetelia, which
prohibited loans on the security of the person,[1899] 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.[1900] It abolished
contractual but not judicial servitude, though it probably mitigated the
latter.[1901] 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,[1902] and continued almost unceasingly 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[1903] both from the
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.[1904] 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.[1905] 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,[1906] and
conquests made extensive assignments of land possible.[1907] 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.[1908] 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[1909]—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 especially
vexatious to the plebs.[1910] The distress was augmented by a pestilence
which began in 295 and continued for several years.[1911] Whereas all
on actual service were by law exempt from prosecution for debt, many
citizens who remained at home were the victims of the usurers, who were
occasionally fined for their illegal exactions.[1912] Again all the
commons incurred 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[1913] 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,[1914] 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,[1915] 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 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, continued 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.[1916] Q. Hortensius, 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.[1917]

    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
    senatus consultum in this law was therefore considered a full
    equivalent 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,[1918] 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 comitia 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 intention of the Valerian-Horatian
    law, to be free from plebi scita because the latter were passed
    without their auctoritas.[1919] If they could make good their
    intention, they would remain unaffected by tribunician laws
    for the abolition of debt. But the Hortensian statute settled
    finally the controversy to their disadvantage. 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.[1920]

    (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.[1921]
    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
    centuriata. With the establishment of their absolute power of
    intercession 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.[1922]
    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.[1923] This Hortensian provision was conservative in
    so far as it placed the tribunician assembly under the same
    pontifical regulations of the calendar as those which were to
    control the other forms of comitia.[1924]

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 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 conduct 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 precedent rather
than by statute, over the whole field of the constitution 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 magistrates, so
this theory asserted, still retained large administrative powers for the
sole reason that the assemblies, unable to manage 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
confirmation 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 preceding 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,[1925] 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) and that of Hortensius
(287).[1926] Whether their activity after 339 was due to the Publilian
enactment of that year[1927] 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.[1928]

The capital actions brought by the tribunes before the centuries in the
period from Hortensius to the end of the republic have already been
reviewed.[1929] 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,[1930] that only one
tribunician prosecution 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.[1931]

In accord with the spirit of the Flaminian era, 232-201, on the other
hand, is the prosecution of the retired consuls, M. Livius Salinator
and L. Aemilius Paulus, on the ground that they had unjustly distributed
the booty gained in war. Technically the charge seems to have been
peculatus;[1932] it was brought before the tribes in 218, doubtless by
tribunes of the plebs. Aemilius narrowly escaped condemnation; Livius
was fined. The popular feeling against them was extremely bitter.[1933]
In 214 M. Atilius Regulus and P. Furius Philus, censors, degraded to
the condition of aerarius[1934] L. Caecilius Metellus,[1935] who after
the battle of Cannae had tried to persuade the knights to abandon
Italy.[1936] 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 administration. His purpose was thwarted, however,
by the intercession of the remaining nine tribunes,[1937] who in this
way saved for a time a conservative principle of the constitution—the
inviolability of the magistrate from prosecutions while in office.[1938]
The trial of Postumius the publican, beginning in a finable action and
ending as perduellio, has been treated elsewhere.[1939] 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.[1940]

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.[1941] 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 proconsul
the accused gained over the Aetolians and Antiochus a victory by which he
won the right to a triumph.[1942] 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.[1943] 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[1944] 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 accordingly 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.[1945] In this proceeding he
kept strictly within his legal rights.[1946] Nothing further seems to
have been accomplished for the present;[1947] but M. Naevius, tribune
of the plebs, after entering office December 10, 185, brought against
Publius Scipio a prosecution, 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.[1948] 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 conviction
was accordingly to be a fine. His brother was still in danger. Early in
184 C. Minucius Augurinus brought a finable action[1949] against Lucius
concerning the money received from Antiochus.[1950] He was condemned
by the tribes, whereupon the prosecutor demanded surety (praedes) for
the payment 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 prosecutor, one of them, Ti. Gracchus, prevented
the imprisonment and consequently the collection of the fine.[1951] 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.[1952]

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.[1953] In this period
the tribes must have been unusually active in a judicial capacity,[1954]
as Cato was himself prosecuted forty-four times, often doubtless before
the comitia tributa, but was always given a favorable verdict.[1955]

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 furtum and iniuria. He was condemned by all the tribes to a
fine of a million asses.[1956] But after 149 most cases of misgovernment
in the provinces came before the quaestio repetundarum instituted in that
year.[1957] There were occasional prosecutions for beginning war without
authorization.[1958] Toward the end of the pre-Gracchan oligarchy C.
Laelius Sapiens, the friend of Scipio Aemilianus, seems to have been
brought to trial for malversation in his consulship of the year 140, but
was probably acquitted.[1959] 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 jurisdiction 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 magistrate[1960]—a policy which could be expected of the
generation that adopted the Aelian and Fufian laws.[1961]

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, challenged 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 permission 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 temper, 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.[1962] But the fact that Annius made a speech against
Tiberius[1963] indicates that the proceedings went farther. Evidently
the accused in some way escaped condemnation. The same political
significance attaches to the tribunician capital prosecutions of the
time, mentioned in an earlier chapter.[1964] No more actions, however,
are known to have been brought by the tribunes before the tribes till
103,[1965] when Cn. Domitius Ahenobarbus, a popular tribune of the plebs,
author of the famous statute concerning the election of sacerdotes,[1966]
prosecuted M. Junius Silanus for misconduct as consul in 109. The
charge was that he had begun war on the Cimbri without an order of the
people. Notwithstanding the stigma of defeat borne by the accused, he
was acquitted by thirty-three of the thirty-five tribes.[1967] 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.[1968] These prosecutions,
together with the plebiscite just mentioned, excited against Domitius an
antipathy among the optimates which reveals itself in the sources but
which his character hardly deserved.[1969]

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.[1970] In one of
the contiones for the trial of this case the citizens would not listen
to the defence of the accused but tore him in pieces. In the same year
Appuleius prosecuted L. Valerius Flaccus, curule aedile, on what charge
is unknown. His own condemnation to exile, 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.[1971]

Sulla’s completion of the system of standing courts and his restriction
of the tribunician function of prosecution[1972] substantially withdrew
all judicial power from the tribal assembly under the presidency of
tribunes. The overthrow of the Cornelian constitutional arrangements left
the standing courts with jurisdiction unimpaired. Though constitutionally
the tribunes by this overthrow regained their right to prosecute, they
exercised it rarely and feebly during the remainder of the republic. C.
Memmius, tribune of the plebs in 66, brought M. Terentius Varro Lucullus
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.[1973] Early in 58 L. Antistius, tribune of the plebs, in the
interest of the optimates 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.[1974] In the year 44 C. Epidius
Marullus and L. Caesetius Flavius, tribunes, 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 withdrawal.[1975] In incomplete trials, like those last
mentioned, it is seldom possible to determine whether they were to come
before the centuries or the tribes.[1976]


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.[1977]
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,[1978] 196,[1979]
and 193.[1980] Closely related is the fining of usurers in 192,[1981]
and of grain dealers for cornering the market in 189.[1982] 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.[1983]

There are several known cases of criminal lust which fell within the
aedilician cognizance. In 227 C. Scantinus Capitolinus 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.[1984]
Most 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.[1985] About the
time of the war with Hannibal a charge of incest, based on the fact of
intermarriage between close relatives and brought doubtless by an aedile,
was judged favorably to the accused by the people.[1986] 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 accordingly had to be dropped.[1987]

One case of perduellio under aedilician jurisdiction is recorded. In
246 Claudia, sister of that P. Claudius Pulcher who lost his fleet off
Drepanum,[1988] 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.[1989] The case is described as a
iudicium maiestatis apud populum Romanum.[1990]

The jurisdiction of the aediles as well as that of the tribunes suffered
from the growth of standing courts.[1991] 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 proceedings instituted by C. Flavius Fimbria,
aedile in 86, against Q. Scaevola. Evidently the case did not come to
vote.[1992] Interesting is the threat of Cicero[1993] 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.[1994] Another anomaly is the prosecution begun by P. Clodius against
T. Annius Milo on the charge of violence (vis).[1995] 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.[1996] After the analogy of the civil magistrate the
pontiff presided over the assembly during the trial.[1997] 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 taken to the people, who decided that the flamen must obey the
pontifex maximus, and on that condition remitted the fine.[1998] In 180
L. Cornelius Dolabella was fined for refusal to resign his office of
naval duumvir that he might be inaugurated rex sacrificulus. The case
was decided as the preceding, but an unfavorable omen which dissolved
the assembly deterred the pontiffs from inaugurating him.[1999] A
similar case occurred in 131.[2000] 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.[2001] These are the few recorded cases of appeal from sacerdotal
jurisdiction. The moderation of the pontifex maximus, together 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 optimates had
now brought the religious machinery of their political system.[2002]

From what has been said on the judicial functions of the comitia in this
and earlier chapters, it is clear that the jurisdiction 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 century 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 röm. Republik_,
    118-140 (on the general character of the period); Ihne, W.,
    _History of Rome_, iv. 125 ff., 171-3, 321-32; Mommsen, _Röm.
    Staatsrecht_, ii. 317-27, 491-7; _Die Scipionenprocesse_, in
    _Röm. Forsch._ ii. 417-510; Lange, _Röm. Altertümer_, ii.
    582-93; Herzog, _Gesch. u. Syst. der röm. Staatsverfassung_,
    i. 811 f., 1177 f.; Greenidge, A. H. J., _Legal Procedure of
    Cicero’s Time_, 327-66; Mispoulet, J. B., _Les institutions
    politiques des Romains_, i. 228 f.; Willems, _Droit public
    Romain_, 175 ff.; Girard, P. F., _Histoire de l’organisation
    judiciaire des Romains_, i. 235 ff.; Hallays, A., _Comices à
    Rome_, 70 f.; Stella Maranca, _Il tribunato della plebe dalla
    lex Hortensia alla lex Cornelia_; Gerlach, _De vita P. Cornelii
    Scipionis Africani Superioris_; _P. Cornelius Scipio Africanus
    der Aeltere und seine Zeit_; Nissen, _Kritische Untersuchungen
    über die Quellen der vierten und fünften Dekade des Livius_,
    213 ff.; Bloch, G., _Observations sur le procès des Scipions_,
    in _Revue des études anciennes_, viii (1906). 93-110, 191-228,
    287-322; Pascal, C., _Studi Romani_, i: _Il processo degli
    Scipioni_; ibid. iii: _L’Esilio 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
    (Münzer); v. 1324-7: Cn. Domitius Ahenobarbus (ibid.);
    Daremberg et Saglio, _Dict._ 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[2003] 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,[2004]
(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 authority, they were now
as much inclined as the patricians to discourage 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 senate could annul the act after its adoption by
declaring it illegal or contrary to the auspices.[2005] 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.[2006]

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[2007] as
to a lack of comitial activity.

First among the statutes relating to the election of magistrates 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,[2008] to give their auctoritas before
the voting began, while the issue was still uncertain.[2009] Blocking
the last efforts of the patricians to monopolize the consulship,[2010]
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
to the censorship an enormous accretion of power which disturbed the
constitutional balance. In this period that magistracy assumed also the
function of supervising the morals of the citizens.[2011] To check this
disproportionate growth a law, probably tribunician, of 265 forbade
reëlection to the office.[2012]

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.[2013] A second praetor was created in 242,[2014]
doubtless by a law, not only for jurisdiction inter peregrinos but
also for increasing the number of magistrates available for military
commands.[2015] The tresviri capitales, instituted in 289,[2016] 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.[2017] In 241 the people, probably in tribal
assembly, granted to L. Caecilius Metellus on account of his blindness
the privilege of riding to the Curia in a carriage.[2018]

One statute referred to this period[2019] belongs to the domain of
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.”[2020] The second
chapter secured the principal stipulator against adstipulators, and the
third provided for all other kinds of damage.[2021] It superseded all
previous statutes on the subject, including that of the Twelve Tables.


II. _The Flaminian Era_[2022]

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.[2023]
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 short-sighted, selfish proceedings found expression in the
rogation of C. Flaminius, tribune of the plebs in 232, for the assignment
of the lands here mentioned to the citizens who were willing to settle
on the frontier.[2024] It was vehemently opposed by the nobility,[2025]
and was finally passed without the authorization of a senatus
consultum.[2026] From a statement of Cicero[2027] 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.[2028]
Most of the settlers in that region were assigned to the tribe Velina,
probably in pursuance of an article of the Flaminian statute.[2029] The
enactment 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 Hortensian 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.[2030] 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.[2031] 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 the day of such
festival excepting by a comitial lex. Usually in cases of the kind the
senate, after voting the privilege, instructed a praetor to request one
of the tribunes to bring a rogatio de imperio before the tribes.[2032]
The earliest known act of the kind is the plebiscite of 211 which granted
the imperium to M. Marcellus, proconsul on the day of his ovation.[2033]

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[2034] the people had a right to legislate
concerning the honors, privileges, and qualifications of its individual
members.[2035] In 219 accordingly the plebiscite of Q. Claudius, known
to have been supported in the senate by C. Flaminius alone, who was then
censor, prohibited senators and their sons from owning sea-going ships
of more than three hundred amphoras capacity.[2036] 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 worship.[2037] 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 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[2038]—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.[2039] In
the payment of soldiers, however, the denarius was still reckoned at ten
asses.[2040] Probably the same law regulated the issue of plated silver
denarii[2041] and of gold coins.[2042] 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.[2043] This measure was followed
the next year by the plebiscite of M. Minucius, which created the
triumviri mensarii, a banking commission for relieving the great lack of
money (216).[2044] The board managed some of the financial business of
the state,[2045] and undoubtedly did what it could to strengthen private
credit, which at this time was at a low ebb.[2046] The next step taken
by the comitia was the enactment of a plebiscite within a field properly
belonging to the censors under senatorial supervision—the building and
repair of public works.[2047] In 212 the act of an unknown tribune,
carried through the comitia with the consent of the senate, created three
temporary administrative boards—quinqueviri 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.[2048]
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.[2049] 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 measures 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
consulship, 217. The Twelve Tables contained a number of laws relating
to funerals, designed to preserve good order and to prevent extravagant
expense.[2050] After their ratification the authority 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 alearia, which prohibited the game of dice. Its mention by
Plautus makes it prior to 204.[2051] The name of the author is not given;
and for that reason we cannot be sure that it was a comitial law.[2052]
To the same period belongs the plebiscite of P. and M. Silius concerning
weights and measures.[2053] The first comitial sumptuary 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.[2054] The object, in Lange’s[2055]
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.[2056] The author must have sympathized
with the tendency of Flaminius, 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.[2057]

The influence of Flaminius on legislation may be traced still farther.
Under the economic distress of the war with Hannibal the plebs began to
lapse into clientage to the nobles. In spite of the principle that the
patron should accept no honorarium for legal service,[2058] the nobles
began by the requisition of gifts to render the commons tributary to
themselves.[2059] The chief occasion for these exactions was found in
the Saturnalia, which was reconstituted in 217.[2060] To check the abuse
the Publician plebiscite mentioned by Macrobius,[2061] undoubtedly of
C. Publicius Bibulus, the popular tribune of 209,[2062] prohibited all
gifts from the poor to the rich on that festival with the exception of
wax candles. It was supplemented in 204 by the plebiscite of M. Cincius
Alimentus,[2063] which absolutely forbade gifts and fees for legal
service.[2064] The prohibition of a magistrate’s acceptance of gifts for
the performance of official duty was undoubtedly included in it.[2065]
Moreover it forbade all gifts above a specified amount, but with
exceptions in favor of various relatives and benefactors.[2066]

It is not unlikely that the Flaminian age saw the earliest comitial
legislation governing judicial procedure in private cases.[2067] 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;[2068] but in the period between the first and second
Punic wars the right was extended to relatives of the fifth and sixth
degrees,[2069] and shortly afterward to those of the fourth degree
(consobrini).[2070] Another law, the lex Atilia, enacted between 242 and
186,[2071] probably in the second Punic war,[2072] directed the urban
praetor to appoint a tutor for a woman or child who was left without a
natural protector.[2073] 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,[2074]
which was enacted before 192,[2075] and which belongs therefore to the
Flaminian age.[2076]

In the same period we find the comitia active in other fields. In 215 a
tribal law of an unknown author granted the citizenship to three hundred
Campanian knights who had remained faithful to Rome, and assigned them to
the municipium of Cumae.[2077] Following a precedent set by the Antistian
plebiscite of 319,[2078] L. Atilius, tribune of the plebs in 210, carried
a law, in pursuance of a senatus consultum, for granting the senate
absolute power over the Campanians who had revolted;[2079] and the senate
accordingly not only punished them with loss of citizenship but reduced
them to miserable subjection.[2080] The right of the comitia to ratify
a vow of a sacred spring was recognized in 217 by an opinion rendered
by the pontiffs,[2081] and was first exercised through a plebiscite of
that year.[2082] The appointment of commissioners for the dedication of
temples also belonged to the assembly,[2083] as well as the regulation
of religious festivals.[2084] 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.[2085] The act was followed by another, before 209,
which authorized the election of the chief curio in the same way.[2086]
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.[2087] 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 assemblies of this character we see an attempt to make
the gods in some degree coadjutors of the populace in filling the sacred
places.[2088]

The assembly was merely exercising a long-recognized right[2089] in the
institution of two new praetors in 227, for which we are warranted
in assuming a legislative act.[2090] The same observation applies to
the increase in the number of elective military tribunes from sixteen
to twenty-four in 207,[2091] which was evidently a concession to the
commons. As the senate generally attended to the prolongation of the
imperium,[2092] the confirmation of a senatorial decree to that effect
by an act of the people in 208[2093] 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.[2094] This act and the
resort to election for filling the office[2095] destroyed the value of
the institution.[2096] A violent departure from usage was attempted in
209 by the rogation 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 proposition.[2097] Three
quarters of a century were to pass before a law of the kind could
actually carry.[2098]

A plebiscite known to have been in force in the time of the second Punic
war[2099] 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 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.[2100] 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 reëlection to the same office excepting after an interval
of ten years.[2101]

From what has been given above it is clear that Flaminius began a new era
in legislation, by no change in the constitution, 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,[2102] 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[2103] applies. The political
condition of Rome was improving,[2104] or was just at its zenith.[2105]
As the senate was at the height of its power, public measures were
deliberated upon, not by the many, but by the best men.[2106] Political
life was sound, elections were pure, and a scrupulous fear of the
gods remained the strongest support of the commonwealth.[2107] 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.[2108] In this equilibrium of forces, in this mutual power
of checking or strengthening, lay the might and the excellence of the
constitution.[2109]

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,[2110]
and as the senate controlled finance, diplomacy, and all interstate
judicial business affecting the Italian allies,[2111] 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 discriminate 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 voluntary exile, if undertaken before a majority has been
reached in the process of voting.[2112] 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.[2113] These facts might lead one to
suppose that the supreme power is with the people and that the government
is a democracy.[2114] In the domestic administration the consuls are
dependent on them for authorizing various kinds of business and are under
obligations to execute their decrees.[2115] 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.[2116]
Hence he can afford to neglect them no more than he can the senate.[2117]

The senate, too, is dependent upon the people for ratifying all serious
penalties imposed by the courts, which are made up of senators.[2118]
Similarly in matters directly concerning that body, the people have power
to accept or reject proposals for diminishing its traditional authority,
for depriving its members of dignities or offices, or even for lessening
their means of livelihood.[2119] 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.[2120]

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,[2121] 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 discussion though
never expressly mentioned, is the lack of popular initiative. The people
could convene for no business whatever 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.[2122] Notwithstanding
the theory of popular sovereignty these conditions 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 disasters of the war with Hannibal, and the nobles were soon to
grow arrogant and violent through a surfeit of wealth and power.[2123]
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 concerning
magistrates. In 198 the number of praetors was increased to six.[2124]
The arrangement was modified by the consular statute of M. Baebius,
181, which provided for the election of four and six on alternate
years,[2125] with the object of giving the governors of the Spains a
biennial term.[2126] The greedy office-seekers by another statute brought
about the repeal of this arrangement in 179.[2127] 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.[2128]

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,[2129] but also, developing a custom already
in existence, established an interval, evidently of two years,[2130]
between consecutive magistracies. The stated object was to curb the
greed for office which the young nobles were manifesting[2131] as well
as the eagerness of the people to favor such ambitious persons, and for
that reason it received the support of Cato.[2132] 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.[2133] To the same period, at all events after 194,[2134]
belong the Licinian and Aebutian plebiscites, which 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
Marcellus,[2135] to check the further aggrandizement of this man as well
as the rise of similar personalities, a law, supported by Cato,[2136]
absolutely forbade reëlection to the consulship.[2137] Cato’s idea
may have been to expedite the advancement of novi homines; but so far
from accomplishing this object, the measure contributed to the further
subordination of the individual to the plutocratic machine.[2138] It may
well have been in the same partisan 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.[2139]
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.[2140] 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 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.[2141] The last of these acts affected the administration
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
governor.[2142] To prevent conflicts in the provinces between the
incoming 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.[2143] It was still more unusual
for the people to take part in the organization of a new province; but in
146 a lex Livia, probably tribunician, commissioned P. Scipio Aemilianus,
assisted by ten legati, to organize the province of Africa.[2144]

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.[2145] In 149 L.
Scribonius Libo, tribune of 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.[2146] No less
characteristic 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.[2147] The deterioration in the character of Roman generalship and
warfare is indicated by a statute of unknown authorship, enacted after
180,[2148] which forbade a triumph to a commander who had not killed at
least five thousand of the enemy in a single battle.[2149] The intention
of the law, however, which obviously was to prevent commanders from
triumphing for fictitious or insignificant victories, was circumvented by
falsifications regarding the number of enemies slain or by triumphs on
the Alban Mount.[2150]

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 exercised by the people three or
four times in quick succession. In 197 was enacted the tribunician
statute of C. Atinius for planting 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.[2151] 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.[2152] In the same year a tribunician law of
M. Baebius Tamphilus provided for the establishment of three Roman
colonies.[2153] Mention of colonial legislation by the people then
ceases. Although the phenomenon may be due in some cases to the sources,
this explanation does not generally hold good, especially as the
colonization of the years 189[2154] and 184[2155] is expressly attributed
to the senate, and because Velleius[2156] 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 conducting colonies were as a rule
elected by the tribes after 296,[2157] the people were given but a taste
of power within this administrative field.[2158]

Early in the second century B.C. we find creditors rioting in usury,
unchecked by the various statutes which had been enacted against the
evil. They discovered a way of circumventing 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 transaction,
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 committed in circumvention of the law and of the senatorial
act, 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.[2159] This is one of the earliest instances
of unfairness introduced by Rome into the private relations between her
citizens and those of her allies.[2160]

Family law underwent some modification. A plebiscite of Q. Voconius
Saxa, 169,[2161] provided that no citizen assessed at a hundred thousand
asses or more should will his property to a woman.[2162] Another article
limited to a half of the estate the amount which any legatee, male or
female, could receive.[2163] Dowries were regulated by a lex Maenia,
which seems to belong to 186.[2164]

In the bestowal of the citizenship the people were unhampered. Doubtless
for some time after the Hortensian legislation comitial acts for this
purpose were commonly authorized by senatus consulta; but in the year
188 we first hear the enunciation of the principle that the people
without the authority of the senate had the power to bestow the ius
suffragii on whomsoever they pleased.[2165] 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 legislative act of admission.[2166]
The citizenship granted in this period continued occasionally to be
limited. The Campanians, excluded forever from the rights of the state
in 210,[2167] were in 188 placed under the census by a senatus consultum
of the preceding year and were given intermarriage probably by a similar
act.[2168] 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 citizenship
in accordance with such a law.[2169] 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.[2170] 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.[2171] Such grants to single individuals by the people,
however, must have been rare.[2172] A Roman taken captive in war,
recovered all his rights simply by returning home (postliminium).[2173]
But even when an entire community 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.[2174] It was permissible for
independent communities and individuals to reject the offer of the
franchise,[2175] whereas subjects and partial citizens were compelled
to accept it.[2176] 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.[2177] 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.[2178] 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.[2179]

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 proprietors were undoubtedly enrolled
in the tribes in which their estates were situated.[2180] From the
beginning, however, custom deprived them of the ius honorum[2181] and
of conubium. The former they acquired along with the other plebeians,
although they were less readily admitted to the actual enjoyment of
it;[2182] the latter they continued to lack.[2183] They were exempt,
too, from ordinary military service.[2184] In time their condition
became worse. C. Flaminius as censor in 220, in the interest of the rural
plebs,[2185] began arbitrarily to assign all the libertini, whether they
had lands or not, to the four city tribes,[2186] doubtless at the same
time to the supernumerary centuries of the comitia centuriata.[2187]
But the sons of freedmen, themselves originally libertini,[2188] 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.[2189]
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,[2190] on the basis of the existing custom of enlisting such
persons in military service at crises.[2191] 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.[2192]

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 significance. The first act,
however, was to undo the Oppian law of 215[2193] through the plebiscite
of M. Valerius, 195, enacted probably without a senatus consultum.[2194]
It was the senate which initiated the tribunician statute of C. Orchius,
181, for limiting the number of guests at banquets.[2195] Cato opposed
the enactment of this measure on the ground that it was too easy,[2196]
but twenty years afterward he protected it from abolition.[2197] 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.[2198] It also forbade the use of fowls
excepting one unfattened hen.[2199] 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 violated
the law but also the guests at such illegal repasts.[2200]

Closely akin to sumptuary laws are those for the regulation of theatres
and games. A plebiscite of Cn. Aufidius of unknown date, possibly
170,[2201] permitted the importation of wild beasts from Africa for use
in the circensian games. The statute repealed a senatus consultum which
had prohibited such importation.[2202] 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,[2203]
who reserved the front seats for senators.[2204] The assignment of
fourteen rows to the knights next to those of the senators was effected
by a plebiscite, possibly of 146, the author of which is unknown.[2205]

For a long time the laws of the Twelve Tables administered by the
magistrates, more rarely by a special court created sometimes by the
senate but oftener and in better right during this period by the
people,[2206] 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.[2207]
One of the earliest may have been the lex Fabia de plagiariis,[2208]
against the usurpation of ownership over a Roman citizen without his
consent or over his slave without the consent of the owner.[2209] The
date of its origin is unknown; but if Plautus[2210] refers to it, as
Voigt asserts,[2211] it must have been in force before 197. For this
and other reasons Voigt assigns it to Q. Fabius Verrucossus, consul in
209.[2212] Lange prefers Q. Fabius Labeo, consul in 183,[2213] whereas
Mommsen places it after the Social war.[2214] 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,[2215] 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.[2216]

The statute which established the first standing court—quaestio
perpetua—was the lex Calpurnia de repetundis of the tribune L. Calpurnius
Piso Frugi, 149.[2217] His motive was undoubtedly a sincere desire to
protect Italy[2218] 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
determined the organization of the Calpurnian quaestio. But from time
to time new standing courts were instituted each with cognizance 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.[2219] Between 149 and 141, for
instance, was established a standing quaestio for the trial of cases of
murder.[2220]

It was in keeping with the oligarchic tendency of the age that a consular
law of M’. Acilius Glabrio, 191, gave the pontiffs the function of
determining which years should be intercalary 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.[2221]
The nobles made their greatest gain in the control of legislation and
of elections about the middle of the century through the statutes of
Aelius and Fufius, probably tribunes of the plebs. By granting 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 tribunician legislation,
and may for that reason be looked upon as the firmest support of the
plutocracy.[2222] An article of the statute forbade the bringing of a
rogation before the people in the interval between the announcement and
the holding of elective comitia.[2223]

Toward the close of the period a democratic movement preliminary to the
revolution began with the enactment of two important ballot laws. The
first was the plebiscite of Q. Gabinius, 139, whom the optimates took
pleasure in representing as ignoble and mean.[2224] 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.[2225] 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.[2226] Cases coming under the law were those which involved
fines imposed by the tribes under aedilician or tribunician presidency.
Probably in the opinion of the author, a conscientious noble,[2227] 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[2228]; yet the principle, when
carried to completion by the supplementary laws on the subject in the
years immediately following, contributed greatly to the success of the
revolution.[2229] Not without significance for the general trend of
affairs is the circumstance that in these latter years of the completed
plutocracy two dispensations were granted P. Scipio Aemilianus from
laws which had been designed to secure it against the rise of great
personalities. In 148 when he offered himself for the aedileship, being
still too young for the consulship,[2230] 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
laws handed down from Tullius and Romulus the people were judges of the
elections, and of the laws pertaining thereto they could set aside or
confirm whichever they pleased.[2231] 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 reënacted it.”[2232] From this event it can be seen that when
the tribunes and people were unitedly determined upon a measure, they
were irresistible. It is evident, 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 occasion though doubtless with as great
regret, exempted him from the law which absolutely forbade reëlection to
the consulship.[2233] It was equally ominous that in the preceding year
the proconsulship of M. Aemilius Lepidus was abrogated, probably by an
act of the comitia.[2234]

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 endangering the state—a feeling which
found expression in the agrarian rogation of C. Laelius, praetor in
145.[2235] The measure must have been similar to the Licinian-Sextian
law as it threatened the interests of the rich.[2236] 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 majority 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,
growing 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 contentious 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.”[2237] These words, which we may suppose to have been
written after the tribunate of Ti. Gracchus,[2238] accurately describe
the interplay of constitutional forces in the period of the completed
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 constitution, 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
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 constitution contained the cure of
every evil which new conditions should breed within the state.[2239]

    Schulze, C. F., _Volksversammlungen der Römer_, 100-10; Peter,
    C., _Epochen der Verfassungsgesch. der röm. Republik_, 118-140
    (on the general character 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. III,
    ch. xi; _Röm. Staatsrecht_, see index s. the various laws;
    Lange, L., _Röm. Altertümer_, 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 nächsten
    Vorgänger_, bks. i, ii; Willems, _Droit public Romain_, 178
    ff.; Mispoulet, J. B., _Les institutions politiques des
    Romains_, I. 220 ff.; Hallays, A., _Les comices à Rome_, 67 f.;
    Maranca, _Il tribunato della plebe dalla lex Hortensia alla 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 568 der Stadt_;
    _Die lex Fabia de plagiariis_, in _Verhdl. d. sächs. Gesellsch.
    d. Wiss._ xxxvii (1885). 319-345; Savigny, F. C. von, _Lex
    Cincia de donis et muneribus_, in _Vermischte Schriften_, i.
    315-85; _Ueber die lex Voconia_, ibid. i. 407-46; _Schutz
    der Minderjährigen und die lex Plaetoria_, ibid. ii. 321-95;
    Garofalo, F. P., _Lex Cincia de donis et muneribus_, in _Bull.
    dell’ ist. di diritt. Röm._ xv (1903). 310-2; Krüger, P. and
    Mommsen, Th., _Anecdoton Livianum_, in _Hermes_, iv (1870).
    371-6; Babelon, E., _Monnaies de la république Rom._ i. 37-69;
    Hill, G. F., _Greek and Roman Coins_, 44 ff.; Haeberlin,
    E. J., _Del più antico sistema monetario presso i Romani_,
    V, in _Rivista Italiana numismatica e scienze affini_, xix
    (1906). 611-46; Cunz, O., _Polybius und sein Werk_; Pais, E.,
    _L’elezione del pontefice massimo Romano per mezzo delle_ XVII
    _tribù_; articles in Pauly-Wissowa, _Real-Encycl._ i. 576-80:
    L. Aimilius Paullus (Klebs); ii. 2728 f.: Baebius (idem); iii.
    2738-55: M. Claudius Marcellus (Münzer); iv. 1112-38: Consul
    (Kübler). 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.




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,[2240]
was taken up in a more determined spirit by Ti. Sempronius 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 trespassers against the earlier law given in our imperfect
records belongs to 193,[2241] and it must still have been in force in
167 when Cato[2242] recited its terms in his “Oration in behalf of the
Rhodians.” Probably about the time of Flaminius the agrarian provisions
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.[2243]

Tiberius had matured his plan before entering office. Assisted 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.[2244] 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.[2245]

(2) The occupier shall receive compensation for improvements on the lands
which the law compels him to surrender.[2246]

(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.[2247]

(4) The lands thus accruing to the state shall be divided among the
needy[2248] in lots, the maximal size of which seems to have been set at
thirty iugera,[2249] to be held not as private property but as permanent,
heritable leaseholds inalienable and subject to a specified rent.[2250]
The Latins and Italians are to be included among the beneficiaries of
this provision.[2251]

(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 111:[2252]

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.[2253] 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.[2254]

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.[2255]

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.[2256] As the unit was doubtless the individual, much of
the land of this description must have remained undivided.[2257]

d. Public roads.[2258]

e. Other portions of the public domain specifically designated as exempt
from distribution, including the Campanian lands, which are leased out by
the censors.[2259]

f. Certain pasture lands let out to any who wish to feed their live stock
thereon, who pay a tax (scriptura) for the privilege.[2260]

(6) The distribution of the lands shall be effected by a standing
magistracy elected annually by the tribes[2261]—the triumviri agris
dandis adsignandis.[2262]

(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 occupation of land is thereby
precluded.[2263]

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.[2264] 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.[2265]
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.[2266] As the election of these persons was a violation
of the Licinian and Aebutian plebiscites,[2267] a dispensation was
probably granted by vote of the people.[2268] When the commission found
itself hampered by legal inability to distinguish between 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.[2269] It was by virtue of this second enactment
that the word iudicandis was introduced into the phrase descriptive
of their functions—“iudicandis adsignandis” or “dandis adsignandis
iudicandis.”[2270] 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,[2271] 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 resolution. 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.[2272] 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.[2273]

The deposition of Octavius[2274] requires especial consideration. In
136 the proconsular imperium had been abrogated, probably by a popular
vote[2275]; but no instance of the abrogation of an actual magistracy had
thus far occurred. Most scholars consider the act unconstitutional.[2276]
It did indeed involve a sweeping departure from long-established custom;
but in favor of its 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 people voted last should be
law and valid[2277]; 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 introduce 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 wisdom 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 overthrow of the senatorial government. This idea, which
he now clearly grasped, found expression in his new political platform,
(1) to shorten the period of military service, (2) by means of a law of
appeal to vest the supreme jurisdiction solely in the people, so as to
deprive the senate of its extra-constitutional judicial power,[2278]
(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.[2279] 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,[2280] they would have prevailed either with or without an act
of dispensation passed by the senate or by themselves[2281]; but the
weakness of his supporters rather than any illegality in the proceeding
proved his ruin. To free the future reformer from this limitation,
however, a rogation of C. Papirius Carbo, tribune of the plebs in 131,
proposed that a tribune should be eligible to reëlection as many times
as he chose to offer himself as a candidate. This rogation failed[2282];
but before the tribunate of C. Gracchus, 123, “a certain law had already
been enacted,” as Appian[2283] 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 provided that if
the returns showed the election of only nine tribunes from the candidates
proposed, the people could proceed 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.[2284] The
object was to enable the people to continue in office an especially
popular 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.[2285] Trials of perduellio alone retained the
oral vote. Doubtless this improvement greatly strengthened the rising
popular party. A plebiscite 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 governing aristocracy from the commercial class begun by the Claudian
statute of 219.[2286]

At some unknown time before the tribunate of C. Gracchus a plebiscite of
M. Junius modified the lex Calpurnia concerning extortion,[2287] in what
way we are not informed. The act is with a high degree of probability
attributed to M. Junius Pennus, tribune of the plebs in 126.[2288] 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.[2289] 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 Italians, 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.[2290] 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 various 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 reëlection to the tribunate, and the increase
of discontent with the plutocracy were the only gains. Extraordinary
progress was now to be made under the leadership of a great creative
statesman. The chronological succession 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, including the seventy
days’ journey to Carthage,[2291] consumed much of the second year, and
after his defeat for the third term—about July, 122—he carried no more
plebiscites.[2292] Among his first thoughts was that of strengthening
the legality of the deposition of Octavius[2293] 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 principle
than as a legislative project. The measure was never offered to vote,
but was withdrawn, we are told, at the request of his mother.[2294] Far
more serious, and of lasting importance, was his lex de provocatione,
which, carrying into effect the idea of his brother,[2295] forbade the
establishment of a special court or the placing of the state under
martial law without an act of the people.[2296] Further judicial
legislation was postponed in the interest of more pressing matters.

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 situation,
rendered the problem of living difficult for the masses even in time
of prosperity; and recently circumstances had so diminished the grain
supply that relief from the government seemed the only resource against
threatening famine.[2297] 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.[2298] 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, provided 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,[2299] which
was probably about half the average market price. The law won for him
the good will of the populace,[2300] but his opponents complained that
it depleted the treasury and excited the mob to seditions.[2301] 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
improvident, 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 unnecessary, whereupon the law would naturally have
been repealed.[2302]

After providing in the frumentarian act an expedient which, we
may believe, he looked upon as temporary, he resumed the work of
construction[2303] by reviving his brother’s agrarian law.[2304] 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[2305] and exempted from distribution the Campanian
territory not set apart for his colony at Capua,[2306] as well as various
other lands excepted both by the agrarian law of Tiberius and by that
of 111.[2307] Doubtless 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 accommodation of the
new peasantry.[2308] Though introducing no new principle,[2309] his
lex agraria was not a simple reaffirmation of his brother’s law with
amendments and additions; but “a comprehensive statute, so completely
covering the ground of the earlier Sempronian law that later legislation
cites the law of Gaius, not that of Tiberius Gracchus, as the authority
for the regulations which had revolutionized the tenure of the public
land.”[2310]

These measures were passed before the tribunician elections of the
year,[2311] which took place as usual in midsummer.[2312] It was his
frumentarian law, together with the hope aroused by the long array of
promulgated measures, which secured his reëlection. 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.[2313] Under such conditions the judicial authority afforded
no efficient 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 generations 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 political power,[2314] 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.[2315] It failed to become a law;
but Gaius now took up the matter, and after experimenting unsuccessfully
with one or two projects,[2316] he finally, 122, carried a plebiscite
which substituted knights for senators in the alba iudicum,[2317] from
which not only standing courts but also special commissions were to
be filled.[2318] 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,[2319] 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
excluded 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.”[2320]
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 compelled the courts of his choosing to do
justice. But the privilege 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.[2321]
The relation between the Sempronian lex iudiciaria and the lex Acilia
repetundarum has not been precisely determined.[2322] If the Sempronian
statute preceded the Acilian,[2323] as is not unlikely, it was the
intention 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 referred to entirely independent of his original lex
iudiciaria.[2324]

The lex Acilia, described above as a plebiscite of M’. Acilius Glabrio,
colleague of C. Gracchus in 122,[2325] took the place of the lex
Iunia of 126,[2326] and is to be identified with a lex repetundarum
extensive fragments of which are preserved in an inscription.[2327]
Whereas earlier laws on the subject rendered governors of provinces, and
perhaps administrative officers in Italy, alone liable to punishment,
the Acilian statute includes magistrates and senators and the sons of
both as well as the holders of promagisterial imperium.[2328] 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[2329]—by gift,
seizure, compulsion, or other illegal means money or property exceeding
a specified sum, which a lacuna in the inscription leaves unknown,
but which is supposed to be four thousand sesterces.[2330] Holders of
magistracies and imperia cannot be brought to trial for the crime till
after the expiration of their terms,[2331] on the general principle which
exempts from prosecution those who are engaged in the service of the
state.[2332] 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,
taking 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.[2333] The rules of
procedure in the trial and the amount of liability of the accused in the
event of conviction are given. The accuser, if an alien, is granted as
a reward for a successful 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.[2334] Probably the
law contained provisions for the punishment of corruption in the patrons
of the accusers and in the praetor and jurors.[2335]

It is certain that Gaius carried a law also for reconstituting the
quaestio inter sicarios et veneficos,[2336] which had originally been
established shortly before 141.[2337] 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 circumveniretur,”[2338] a principle repeated as
“Qui coisset, quo quis condemnaretur”[2339] 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.[2340] The provision
was directed against the accuser, against magistrates and senators who
presided over such courts, and presumably against equestrian jurors who
accepted bribes.[2341]

We have in an inscription the concluding articles of a criminal law[2342]
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.[2343] A reference
to the triumviri agris dandis adsignandis, who seem to have been those
elected under the Sempronian agrarian law, places the document between
133 and 118. It is concerned with a quaestio.[2344] An attempt has been
made to identify it with the lex Iunia repetundarum and to assign it
accordingly to 126.[2345] The circumstance, however, that it was passed
without the authorization 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 lands, or a index 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 ascertaining
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 index appointed under
this law shall in future take the oath within five days after entering
upon their magistracies or imperia. 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 intercession 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.[2346] Under such an arrangement, however, no sufficient guarantee
could be provided for the security of the provincials from publican
exactions.[2347] The political result of this legislation in favor of
the knights was to invest them not only with an important share in the
administration, but through the courts with a superiority even over the
senate.[2348] 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,[2349] 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.[2350] For a few months their
benefactor may have cherished the delusion that he could depend upon
their grateful support; he lived to discover 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
proletariate.

The right which the senate had hitherto possessed of assigning the
provinces to the magistrates and promagistrates according to its pleasure
gave a great opportunity for favoritism and partisanship; it could thwart
the will of the people by assigning 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.[2351] An article forbade tribunician intercession against
such action of the senate.[2352] Far from improving the administration,
however, this statute tended to foster that routine which was one of the
most marked defects of oligarchic rule.[2353]

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.[2354] 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;[2355] 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.[2356] 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 certainly insistence on the legal age limitation was prudent as well
as humane. There is no ground, then, for imagining with Diodorus[2357]
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,[2358] 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.[2359] The two actually founded
were Scolacium and Neptunia,[2360] both in situations favorable for
commerce. Several other settlements in Italy are attributed to his
colonial or agrarian statute.[2361] As his colonies were exclusively
citizen,[2362] 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 Junonia on the
site of Carthage.[2363] But the most liberal and statesmanlike 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.[2364] The rejection of the bill by a popular vote proved the
leader far too liberal and too progressive for his supporters. Deceived
by the spurious proposals of M. Livius Drusus,[2365] a colleague of
Gaius, for the founding of twelve colonies, the members of which
were to hold their lots by fee simple and consequently exempt from
rents, and for depriving the Roman magistrates of the right to inflict
corporal punishment on Latins even when in military service under their
commands,[2366] the populace, readily accepting the new proposals,[2367]
turned against their true champion, and defeated him in the election
for the tribunate for the ensuing year.[2368] 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.[2369] In
the ensuing struggle between the senate and Gaius they took the side of
the former.[2370]

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 accomplish when directed by the
personality of a great statesman.[2371] 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 vitalized. These results might have been achieved, had Gaius
lived out his natural life and retained the support of the populace
and the knights.[2372] 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 colonization of Junonia (Carthage).[2373] Soon
afterward, certainly not later than 118, a plebiscite, whose author is
unknown, permitted the beneficiaries of the Sempronian agrarian laws to
sell the lots they had received.[2374] This enactment was followed in 118
by a plebiscite which Appian[2375] assigns to Spurius Borius (?), a name
not otherwise known.[2376] It put an end to the distributions, and must
therefore have abolished the agrarian triumvirate. 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
recently distributed in small lots as well as those retained by the
occupiers. Lastly it enacted that the revenues accruing from the rents
should be used for distributions—probably of cheap grain.[2377] In 111
another tribune, whom Cicero[2378] names Sp. Thorius, through a law which
has partially survived in an inscription, 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.[2379]

(1) 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.[2380]

(2) Land assigned to a colony and afterward restored to its former
occupier (veteri possessori).[2381]

(3) Land within the legal limit (of five hundred iugera) left to the
occupier by the three commissioners.[2382]

(4) Land assigned after 133 to colonies of Roman citizens.[2383]

(5) Land given and assigned by the three commissioners after 133.[2384]

(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.[2385]

(7) Land which by the provision of this law is to be sold, granted, or
restored.[2386]

All the lands above enumerated are declared private and free from
vectigal and scriptura.[2387]

II. The lands which the law declares public are those reserved from
distribution by the law of Ti. Gracchus.[2388] 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.[2389]

III. In the regulation of the agrarian conditions of Africa the statute
deals with three kinds of land, (1) private ex iure quiritium,[2390] (2)
private ex iure peregrino,[2391] (3) public domain of the Roman people
of various sub-classes.[2392] Lastly the statute aims to settle the
status of the lands of Corinth.[2393] 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.[2394]

Through this series of reactionary laws, from the Minucian (121) to the
Thorian (111), the optimates succeeded in nullifying the good results of
the Sempronian agrarian reforms. It was while the Minucian rogation[2395]
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 C. Gracchus and his followers.[2396] 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 appointment of
special commissions and to the decretum ultimum[2397]—a right on which
the optimates continued to insist to the end of the republic. Through
the plebiscite of L. Calpurnius Bestia (also 120)[2398] they put the
stamp of legitimacy upon the murder of the followers of Ti. 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.[2399]
An attempt was made by Q. Servilius Caepio, consul in 106, to restore
the courts to the senate,[2400] or possibly to compromise by providing
for an album composed of both senators and equites.[2401] 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.[2402]
Within this period of reaction, and perhaps as a part of it, falls the
lex de libertinorum suffragiis of the consul M. Aemilius Scaurus, 115.
Although nothing certain is known of it, we may suppose that it attempted
again[2403] to restrict the libertini to the four city tribes.[2404]
About this time, too, several acts seem to have been passed for
diminishing the pay of soldiers, probably undoing the Sempronian law on
the subject.[2405]

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[2406] and of the peasants, opposed as
tribune of the plebs the senatorial aristocracy, which now had to depend
for immediate support upon the populace.[2407] 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[2408]—in elections
selected by the candidates[2409]—who used their influence with the
voters, especially of the principium or of the prerogative century,[2410]
thereby maintaining for the aristocrats a high degree of control over the
comitia in spite of the ballot laws.[2411] 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.[2412] The politicians,
however, soon found means of circumventing this law as well as the use
of the ballot.[2413] 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.[2414]

We find another sign of popular recovery in the assembly’s resumption of
the appointment of special judiciary commissions.[2415] 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 absolute authority over the Vestals, had already pronounced
judgment, 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.[2416] To such an extent did the tribune
apply the theory of popular sovereignty.[2417] 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.[2418]
In 105 the tribal comitia abrogated the proconsular imperium of Q.
Servilius Caepio,[2419] and in the following year, they not only
appointed a special court to try him for embezzlement of the gold found
at Tolosa,[2420] but through the plebiscite of L. Cassius Longinus, they
disqualified for membership of the senate any person whom the people
had judicially condemned or whose imperium they had abrogated.[2421]
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 condemned 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,[2422] which gave the tribunes the ius sententiae dicendae in the
senate with the same right to censorial enrolment as that enjoyed by the
curule magistrates.[2423]

The growing strength of the people and at the same time the increasing
dependence of the optimates on religion for the control of politics are
indicated by a law of 103 concerning the election of sacerdotes. More
than a hundred years earlier[2424] 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 régime 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.[2425] The proposal was defeated by the eloquence of
C. Laelius,[2426] 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.[2427] According to the 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, composed
as above described, made a choice.[2428] 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.[2429] 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.[2430] His immediate object
was to encourage enlistments.[2431] 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
determination, the proposer readily allowed it to be voted down.[2432]
The monetary lex Clodia, which probably belongs to the same year, has no
political significance.[2433]


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 legislative power after
the overthrow of C. Sempronius Gracchus. We are now approaching a
second crisis in which the aristocracy had to struggle for existence.
Against it was formed a combination of three powerful men, C. Marius,
supported by the knights and the municipes,[2434] C. Servilius Glaucia,
and L. Appuleius Saturninus. It is almost certain that this Servilius
is to be identified with the author of the lex repetundarum of 111
or thereabout, probably a plebiscite, which repealed the Acilian law
on the same subject.[2435] 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 hearing’—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[2436]—and he also made it possible to
recover damages, not only from the chief malefactor, but from all who
had dishonestly shared his spoils.”[2437] These principles were taken up
into the Cornelian law which superseded it in 81.[2438] 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,[2439] 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, interceded, 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.[2440] 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.[2441] Either to this
tribunate or more probably to his second belongs the lex de maiestate
(minuta),[2442] 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.[2443] The same statute provided for the establishment of a
court which seems to have been standing rather than special.[2444]

In his second tribunate, 100, 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.[2445] Marius was to 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.[2446] 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.[2447] 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.[2448] It is not known whether the colonial,
agrarian, and frumentarian measures were separate enactments 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[2449]
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.[2450] 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 passed against him by the tribes on the motion of Saturninus.[2451]
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;[2452] nevertheless
Mariana was founded by Marius in Corsica, apparently under the colonial
provision.[2453] The import of the agrarian law of Sex. Titius, tribune
of the plebs in 99, is unknown.[2454] It may have been merely a
reënactment 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.[2455]

The optimates, having again triumphed over the democracy, adopted a
policy of moderation. Their consuls of 98, Q. Caecilius 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[2456] and ordered that the
promulgation should precede the voting by at least a trinum nundinum—an
interval which included three market days.[2457] Similarly in 95 their
consuls, L. Licinius Crassus and Q. Mucius Scaevola, aimed by an equally
moderate law to check the usurpation of the citizenship on the part of
aliens. It forbade peregrini to perform the functions of citizens, though
it did not order the innocent among them to leave Rome.[2458] It provided
for the appointment of a special commission to discover and punish
usurpers of the citizenship.[2459] Those found guilty were sent back to
their communities.[2460] 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,[2461] as it helped drive the Italians
to revolt.[2462]

The next attempt at reform proceeded from the inmost circle of the
aristocracy.[2463] 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.[2464] Regarding his
aims and the quality of his statesmanship 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.[2465]
Appian[2466] 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.[2467] It probably abolished the statute of 111
and ordered the division not only of the Campanian lands,[2468] 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;[2469] and it
established a board of ten for making the assignments.[2470] Livy[2471]
attributes to the author a frumentarian 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.[2472]

He further proposed to mix with the silver coinage an eighth part of
copper,[2473] the proceeds of this gain to be applied perhaps to the
execution of his frumentarian project.[2474] There is much controversy
as to the intent of his judiciary reform. Appian[2475] supposes that
he wished to add three hundred knights to the senate and to draw the
jurors from that body thus enlarged. Velleius[2476] is of the opinion
that his aim was to transfer the iudicia to the senate; whereas the
epitomator of Livy[2477] 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
compose 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,[2478] while serving the interests of the
senate and ridding the state of the corrupt and tyrannical rule of the
knights.[2479] By a special article of the rogation a quaestio, probably
perpetua, was to be appointed to inquire into the cases of bribery
of jurors and to punish the guilty.[2480] His most radical measure,
introduced after opposition to his other reforms began to develop,[2481]
was for extending the citizenship to the Latins[2482] and to all the
Italians.[2483] This group of proposals, designed for the benefit of
all parties, proved distasteful to all. The senators found a ground
for complaint in the circumstance 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 distribution of lands.[2484] The
agrarian, frumentarian, monetary, and judiciary measures were combined
in one statute, and passed with violence[2485] and contrary to the
omens.[2486] 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.[2487] Although Drusus might
have interposed his veto against this decree, he preferred rather to
disregard it, most probably on the theory that the senatorial authority
did not avail against the sovereign will of the people.[2488] Aware that
his intercession would but postpone the annulment to another 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.[2489] A plebiscite of Saufeius, a
colleague, established a commission of five in addition to the ten
provided for by the Livian statute; and Livius was elected a member of
both commissions.[2490] After his murder the Livian and Saufeian statutes
were both considered null and void.[2491]

The lex Remmia de calumniatoribus, which was enacted before 80, may
belong to the year of the Livian attempt at reform, 91;[2492] 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 branding of his forehead with the letter K (for Kalumniator).[2493]
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 Appuleian law on the subject by a severe provision against those
who encouraged the Italians to demand the citizenship or in any way to
conspire or to revolt against the Roman people. It must have contained an
article, too, concerning seditions.[2494] The court which it established
was to sit on all ordinary dies fasti, undisturbed by iustitia,[2495] and
was to be a quaestio perpetua.[2496] Now that two attempts, the Appuleian
and the Livian, to substitute more popular measures for the Sempronian
frumentarian law had failed, the optimates found themselves strong
enough to supersede the Sempronian act by one less popular. This was the
Octavian law,[2497] the contents of which are unknown, but which received
the praise of Cicero for its moderation.[2498]

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[2499]
and on all the Italians who had not taken arms against Rome[2500] and
who were willing to accept the gift.[2501] The same statute probably
regulated the assignment of these new citizens to the tribes.[2502]
In the following year a law of L. Calpurnius Piso, probably a tribune,
granted the commanding general power, apparently absolute, to bestow
the right of the city upon the soldiers under his orders.[2503] Another
statute of 89, carried by M. Plautius Silvanus and C. Papirius Carbo,
tribunes 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.[2504] The object of this measure
was not only to expedite the reconciliation, 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.[2505] In the same year Cn. Pompeius Strabo, a consul,
proposed and carried a law which seems to have empowered 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.[2506]

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.[2507]

Mommsen[2508] supposes that these jurors were for the quaestio de
maiestate only. For this opinion he depends upon the assertion of
Cicero[2509] 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. However 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.[2510] The lex Papiria, which introduced the semiuncial _as_, is
doubtless to be assigned to C. Papirius Carbo, the colleague 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.[2511]


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 Mithridates 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[2512]—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
patrician who had forsaken his rank to qualify himself for the plebeian
tribunate.[2513] A man of marvellous eloquence, he had been an adherent
of Drusus, though more inclined to the equestrian 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: (1)
that the new citizens and the libertini should be distributed among all
the tribes,[2514] with a view to completing the plan of Livius Drusus
for the political equalization of Italy; (2) that those who had been
driven from the state by violence should be recalled.[2515] This article
was probably for the benefit of those knights against whom the Varian
law had been turned.[2516] His rogation provided further, (3) that no
one who owed more than two thousand denarii should be a senator.[2517]
Money was scarce because of the war;[2518] 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 promoting 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.[2519] 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,[2520] 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 senate ratified by a popular vote.[2521] There is no need
of assuming that the supporters of the tribune turned against him; the
optimates 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.[2522]

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 effectually 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[2523] that no measure should ever
again be brought before the people which had not been previously
considered and agreed to by the senate.[2524] 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.”[2525] 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 intelligence he could not have failed to see the insuperable
difficulty of restoring the ancient definitions of the classes in
terms of iugera or even on the later basis of the libral _as_.[2526]
Furthermore 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 revitalization of the antique
mummy. Such a measure, too, as Meyer[2527] has pointed out, would place
the control of the assembly 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.[2528] If this reasoning is correct, the
act under consideration totally abolished the legislative initiative
of the tribunes.[2529] The other Cornelian-Pompeian law mentioned by
Appian must have applied, accordingly, not to the tribunate but to the
other magistracies.[2530] The current interpretation, which involves
the theory of a return to the original centuriate system, requires
further examination. Its chief basis is the statement of Appian that no
law should be brought before the πλῆθος which had not been previously
considered in the senate. It is commonly assumed that he uses δῆμος to
designate the whole citizen body, and πλῆθος the exclusively plebeian
assembly under tribunician presidency. A study of his usage, however,
proves that he makes no such discrimination. Δῆμος is ordinarily the
people in general, especially as distinguished from the βουλή,[2531]
parallel to Livy’s common distinction between plebs and senatus. It
is the technical term for the plebs in their tribal comitia under
tribunician presidency.[2532] Rarely it signifies the state[2533] with
reference to the interest of the people. Πλῆθος, on the other hand,
ordinarily denotes the masses, multitude, rabble,[2534] including the
crowd gathered not only in a tribunician assembly[2535] but also in
the ἐκκλησία (here meaning contio) under the presidency of a patrician
magistrate.[2536] But πλῆθος 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 Cornelian-Pompeian law is
εἰσηγοῦντό τε μηδὲν ἔτι ἀπροβούλευτον ἐς τὸν δῆμον ἐσφέρεσθαι, in which
he uses δῆμος 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 πλῆθος for δῆμος for the purpose, not of
defining the assembly as tribunician, but of contrasting the masses in
the assembly with the nobles in the senate: ἐσ τὸ πλῆθος is substantially
equivalent to ἐν τοῖς πένησι καὶ θρασυτάτοις used just below; Sulla
wished nothing to be submitted to the masses in the comitia centuriata
before it had been considered by the senate.

Appian[2537] attributes to Sulla for this early date an attempt to
increase the number of senators. “They (the consuls) enrolled three
hundred nobles in the senate, which had been reduced in numbers and for
that reason had come to be despised.” He does not state, however, by what
authority the consuls made this extraordinary adlectio; and it is in fact
improbable that the senate had so dwindled. However that may be, the
increase did not take permanent effect at this time.[2538] Two other laws
of these consuls are briefly mentioned: (1) for planting colonies,[2539]
of which nothing is known; (2) a lex unciaria.[2540] The latter may have
been a reduction of existing debts by one-twelfth of the principle, or a
lowering of the maximal rate of interest to 8⅓ per cent;[2541] or it may
have been a general insolvency law, providing for the payment of debts in
instalments.[2542] The chief value of these measures, even if we knew
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.[2543]

Cinna then proposed (1) a renewal of the Sulpician plebiscite for
the enrolment of the new citizens and the libertini among all the
tribes,[2544] (2) a recall of Marius and the other exiles.[2545]
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.[2546] 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.[2547] As the senate, reversing its earlier action,[2548] had
already legalized the Sulpician provision concerning the distribution of
the libertini and the new citizens among the thirty-five tribes,[2549] it
was without reënactment carried into effect in 84.[2550] The execution
of this measure completed 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
with one-fourth of the amount due.[2551] 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.[2552]

    Schulze, C. F., _Volksversammlungen der Römer_, 110-26;
    Peter, C., _Epochen der Verfassungsgesch. der röm. 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, _Röm. Altertümer_, iii. 1-146, and see indices s.
    the various laws; _Die promulgatio trinum nundinum, die
    lex Caecilia Didia und nochmals die lex Pupia_, in _Kleine
    Schriften_, ii. 214-70; Mommsen, Th., _History of Rome_, bk.
    iv; _Röm. Staatsr._ see index s. the various laws; _Ueber das
    thorische Ackergesetz_, in _Ber. sächs. 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., _Röm. Agrargeschichte_,
    151 ff.; Dreyfus, _Lois agr. sous la république Rom._ 77-196;
    Voigt, M., _Ueber die staatsrechtliche Possessio und den Ager
    compascuus_, in _Abhdl. sächs. Gesellsch. d. Wiss._ x (1880).
    221-72; _Ueber das röm. System der Wege im alten Italien_, in
    _Ber. sächs. Gesellsch. d. Wiss._ xxiv (1872). 29-90; Babeion,
    E., _Monnaies de la république Rom._ i. 69-79; Billeter, G.,
    _Geschichte des Zinsfusses im griechisch-röm. Altertum_,
    155 ff.; Fowler, W. W., _Notes on Gaius Gracchus_, in _Eng.
    Hist. Rev._ xx (1905). 209-27, 417-33; _Gaius Gracchus and
    the Senate_, in _Class. Rev._ x (1896). 278-80; Pöhlmann, 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 Verhältniss 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; Krüger-Brissaud, _Hist. d. sources d. droit Rom._ 94
    f.; Hegewisch, D. H., _Geschichte der gracchischen Unruhen_;
    Ahren, E. A. J., _Die drei Volkstribunen Ti. Gracchus, M.
    Drusus, und P. Sulpicius_; Nitzsch, K. W., _Die Gracchen und
    ihre nächsten Vorgänger_, bks. iii, iv; Blasel, J., _Die
    Motiven der Gesetzgebung des C. Gracchus_; Callegari, E., _La
    legislazione di Caio Gracco_; Meyer, E., _Untersuchungen zur
    Geschichte der Gracchen_, in _Festschriften ... der vereinigten
    Friedrichs-Universität_, etc. 1894. _Philos. Fak._ 79-109;
    controverted by Schwartz, E., in _Göttingische gelehrte
    Anzeigen_, clviii (1896). 792-811; Hesky, R., _Anmerkungen zur
    lex Acilia repetundarum_, in _Wiener Studien_, xxv (1903).
    272-87; Brassloff, S., _Beiträge zur Erläuterung der lex Acilia
    repetundarum_, ibid. xxvi. 106-17; Hagge, _Einige Bemerkungen
    über die lex Servilia repetundarum_; Mühl, F. V., _De L.
    Appuleio Saturnino tribuno plebis_; Pappritz, R., _Marius
    und Sulla_; Vassis, S., Ζητληματα Ῥωμαϊκά, 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 (Hülsen); iii. 1414-21:
    Calumnia (Hitzig); 1441 f.: Campanus Ager (Kubitschek); iv. 195
    f.: C. Coelius Caldus (Münzer); 510-88: Coloniae (Kornemann);
    v. 407-10: T. Didius (Münzer); articles in Daremberg et Saglio,
    _Dict._ i. 133-8: Ager Publicus (Humbert); 1301-21: 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,[2553] were dead, and as Sulla desired above all
things to give his legislation a constitutional 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 accordingly 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 publicae constituendae for
an indefinite time with absolute power over the lives and property of the
citizens,[2554] (2) which legalized all his past acts, both as consul and
as proconsul,[2555] including his arrangements in Asia as well as his
proscriptions and confiscations.[2556] He returned to the city, appointed
Valerius his magister equitum,[2557] and took to himself twenty-four
lictors in addition to a less formal guard of servants and friends.[2558]
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 tribunate, an
institution in which centred the strength of the democracy. A statute for
that purpose he must have felt compelled to draw up and pass before the
next tribunician election. Instead of renewing his earlier law, however,
for absolutely depriving the tribunes of initiative in legislation,[2559]
he enacted simply that the previous consent of the senate should be
necessary to bills brought by them before the tribes.[2560] By another
article of this law he limited the right of tribunes to address the
people in contiones.[2561] The range of their intercession was also
greatly limited.[2562] Their function of bringing prosecutions before
the people underwent restriction not only through the laws affecting the
quaestiones but also by special enactment;[2563] for had they retained
their unlimited right to prosecute, they could at once have regained
all their other power.[2564] Little was left them but their original
auxilii latio adversus imperium.[2565] Finally the office was made
unattractive to the ambitious by the provision that those who held it
were thereby disqualified for other magistracies.[2566] By these measures
the most vital and powerful institution in the state was reduced to a
shadow without substance.[2567] The return to conditions preceding the
Hortensian legislation, in some respects even the Decemviral legislation,
was, as Fröhlich[2568] remarks, a backward step such as finds few
parallels in history.

About a year[2569] after limiting the power of the tribunes Sulla
proceeded to regulate the other offices through his lex de magistratibus,
81. This statute, making use of the principle contained in the lex
Villia annalis,[2570] prescribed (1) that no one could be consul before
he had been praetor or praetor before he had been quaestor,[2571] (2)
that a space of two years should intervene between the holding of
consecutive offices.[2572] (3) The minimal age of the quaestor it fixed
at thirty-seven.[2573] 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.[2574] The quaestorship
Sulla made the sole avenue to the senate, so as to dispense with the
revision of the list by the censors.[2575] The statute of 151, forbidding
reëlection to the consulship,[2576] he repealed, and substituted for
it the article of the Genucian plebiscite of 442[2577] which fixed an
interval of ten years between the expiration of any office and reëlection
to the same.[2578] He increased the number of quaestors, at this time
certainly more than eight,[2579] to twenty, with the object not only of
supplying an administrative need but also of creating the required number
of senators.[2580] It was necessary also to raise the number of praetors
from six to eight in order to provide presidents for the new quaestiones
perpetuae.[2581]

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 decemviri sacris faciundis were made
quindecemviri.[2582] Another measure, which seems to have been an article
of the same act, repealed the Domitian lex de sacerdotiis,[2583] and thus
restored to these colleges, and at the same time to the epulones, their
right of filling vacancies by coöptation,[2584] leaving to the people the
function only of electing the head of the pontifical college from among
the members.[2585] As the object of the first article was evidently to
provide places for some of the new magistrates and senators,[2586] the
coöptation doubtless immediately followed the enactment of the law.

In increasing the number of praetors to eight[2587] 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 themselves as propraetors the
command of provinces. In like manner 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.[2588] The lex de provinciis
ordinandis[2589] recognized the right of the senate to determine which
provinces should be consular and which pretorian in the way provided for
by the Sempronian law on this subject.[2590] 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.[2591] But it established the
rule (1) that the two consuls should receive for a year of promagisterial
imperium the provinces declared to be consular; and that they should
either agree as to which each should take or cast lots for them;[2592]
(2) that the senate should annually assign the eight retiring praetors
to the remaining provinces, also for a year of promagistracy.[2593] 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,[2594] provided he merited one. To avoid
conflicts between retiring and incoming governors it ordained that the
former should leave the province within thirty days after the latter had
entered it.[2595] The law further contained the definite regulation of
the supplies and honors granted the legati by the provincials.[2596] The
tendency of Sulla’s legislation thus far considered was to weaken the
civil functionaries (1) by restricting the tribunician initiative. (2)
by increasing the number of quaestors and praetors. (3) by depriving the
higher civil magistrates of the military 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,[2597] 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.[2598] Appian[2599] states that these new senators were elected
by the tribes, possibly meaning the tribal comitia.[2600] 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.[2601] This addition would raise the number to about four
hundred and fifty. As the normal membership from Sulla to Caesar was
about six hundred,[2602] 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.[2603] Henceforth it was to be recruited automatically
by this process, without any action on the part of the censors,
who were thus deprived of the only important function remaining to
them.[2604] Closely connected with the increase in membership is the lex
iudiciaria,[2605] which restored the quaestiones to the senators.[2606]
It was enacted near the end of 81, but prior to the increase in the
number of quaestors.[2607] 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.[2608]

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.[2609] His reform increased
the number to seven, four of which were concerned almost wholly with
maladministration of office: (1) quaestio repetundarum, extortion,[2610]
(2) quaestio ambitus, bribery in elections,[2611] (3) quaestio peculatus,
misappropriation of public funds[2612] and sacrilege,[2613] (4)
quaestio maiestatis, injury to the majesty of the Roman name, of which
a private person as well as a magistrate might be guilty.[2614] The
three following were concerned with common crimes: (5) quaestio inter
sicarios et veneficos, assassination, poisoning, and arson,[2615] (6)
quaestio de falsis, counterfeiting and falsification of testaments and
other forgery,[2616] (7) quaestio iniuriarum, acute personal violence,
housebreaking, and probably defamation of character.[2617] These laws
concerning quaestiones contained provisions for granting the accused the
privilege of deciding whether the vote should be oral or by ballot,[2618]
and they directed that the order of voting should be determined by
lot.[2619] 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.[2620]

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 without 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 81 we must
place the lex de proscriptione,[2621] which added certain regulations
to those of the Valerian law for the creation of the Cornelian
dictatorship,[2622] and which Sulla considered essential to the execution
of his policy and the maintenance of its results. The Cornelian
statute concerning proscription forbade the giving of relief or aid
to a proscribed person;[2623] it legalized the previous slayings and
confiscations of property,[2624] and provided also that the estates not
only of the proscribed but also of enemies who had fallen in battle
should be sold for the benefit of the treasury.[2625] 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,[2626] 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.[2627]

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.[2628] The Cornelian agrarian
laws,[2629] which brought about these confiscations and assignments,
seem to have been not acts of the comitia but dictatorial orders.[2630]
They must have been issued from time to time as occasion demanded,
probably through the entire year 81.[2631] The legions were kept together
till after the triumph (January 27, 28 of the year 81)[2632] and then
disbanded, to be led off gradually to their lands. Some of the municipia
to which soldiers were assigned, most obstinately Volaterrae and Nola,
resisted their admission by force of arms. To punish these rebels Sulla
carried through the comitia centuriata his lex de civitate Volaterranis
adimenda,[2633] which disfranchised not only Volaterrae but also other
rebellious municipia.[2634] Those who by this act were deprived of the
citizenship received the so-called Latin rights of Ariminum.[2635]

Among the regulations for the improvement of the finances, which he
found in bad condition,[2636] was his abolition of the distributions
of grain.[2637] Whether it was effected by a lex frumentaria or a
dictatorial order cannot be determined.[2638] The levy of taxes on
Italian and transmarine communities[2639] could be brought about by
senatus consulta,[2640] as the people had nothing to do with such
matters. Credit had been shattered by the law of L. Valerius Flaccus
concerning debts, 86,[2641] which Sulla repealed by one of his own on the
same subject, 81.[2642]

In connection with the Circensian games which he celebrated in the
autumn of 81, and which in honor of Victoria were thereafter repeated
annually from October 26 to November 1,[2643] Sulla must have passed
a lex de ludis Victoriae instituendis.[2644] Lastly came the sumptuary
law, through which he attempted to regulate the manners and morals of
the citizens.[2645] It was the restoration, in a revised form, of the
lex Licinia of 104,[2646] which had been repealed by M. Duronius in
97.[2647] 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.[2648] Another article of the same statute
limited funeral expenses.[2649] The author’s object seems to have been to
restore the morals and manners as well as the constitution 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.[2650] 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 overthrow 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 opposition of his colleague, Q. Lutatius Catulus, and of the
senate prevented their ratification.[2651] The right of retired tribunes
to sue for other offices,[2652] however, was restored by a statute of
the consul C. Aurelius Cotta, 75.[2653]

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 quaestio perpetua for the trial
of persons charged with violence. It also forbade the acquisition by
long use of things stolen or violently seized.[2654] As no censors were
elected, an order of the people of unknown authorship in 75, pursuant
to a senatus consultum, empowered the consuls of the year to farm the
vectigalia.[2655] The approaching end of the Cornelian régime was
foreboded in the Plautian law for the recall of Cinna and other exiled
democrats, if indeed this measure belongs to 73,[2656] and certainly in
the consular law of Cn. Cornelius Lentulus Clodianus, 72, which directed
the consuls of the year to collect the money remitted by Sulla to the
purchasers of confiscated estates.[2657] A popular tendency may be
discovered as well in the 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 71.[2658] It forbade the magistrates to convoke the senate on those
comitial days on which an assembly actually met,[2659] the prohibition
applying to that part only of the day which preceded the dismissal of the
comitia.[2660] 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 alliance with Rome, and for regulating on that basis
the relations which were to exist between the inhabitants and the
Romans.[2661]

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[2662] declined, as he could see no advantage in
the unhampered tribunate.[2663] Though generally in these early years
of the Cornelian régime 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.[2664] 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.[2665] This
measure narrowly escaped annulment, and Opimius after retiring from
office was exorbitantly fined on the ground that he had interceded in
violation of a Cornelian law.[2666] 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,[2667] 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.[2668]
In 73 the contest was resumed by Licinius Macer the annalist, then
tribune of the plebs, who demanded in vain the full restoration of the
tribunician power.[2669] In his efforts he had the support of C. Julius
Caesar.[2670] 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 Palicanus, 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.[2671] Inveighing
against the corruption of the senatorial courts,[2672] Pompey 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,[2673] Pompey promulgated his rogation
for the restoration of the tribunician power. The senate yielded in
spite of its dislike for the measure,[2674] and Licinius Crassus, his
colleague,[2675] added his name to the proposal.[2676] The people gladly
accepted it. Those articles of the Cornelian statute which remained
untouched by the Aurelian law of 75 were thereby repealed, and every
restriction on the tribunes removed.[2677] By destroying the chief
support of the Cornelian constitution this measure paved the way to
its overthrow. Notwithstanding the popular clamor for a reform of the
courts,[2678] 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 unnecessary. The reform, however,
was taken in hand by L. Aurelius Cotta, praetor in the same year,
youngest brother of the consul of 75.[2679] 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.[2680] The
first project seems to have been the retransfer of the courts to the
equites;[2681] 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, composed in equal
numbers of senators, knights, and tribuni aerarii respectively.[2682]
The last-named decury was included because the Plautian judiciary law
of 89 had opened the courts to common citizens in addition to senators
and knights,[2683] and it was now thought that no less liberality
should be shown. The Aurelian statute provided accordingly that the
urban praetor[2684] should make up the annual album iudicum of an equal
number of men from each of the three classes.[2685] The good feature of
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 proportion of the most responsible
and respectable common citizens 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[2686] 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 participation of candidates and of magistrates in dinners
away from home, doubtless with a view to curtailing ambitus practiced by
such means.[2687] Far however from being a partisan measure, this statute
seems to have been suggested by the censors of the year, to reënforce
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[2688]—reëstablished between senators and
knights, when representatives 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.[2689] The nobles were willing to concede
something to the equites to make permanent the alliance with this
powerful order.[2690] L. Roscius Otho, tribune of the plebs in 67, as
spokesman of the optimates[2691] “railroaded”[2692] through the assembly
a statute which ordered that there should be reserved in the theatre for
those in possession of the equestrian census[2693] fourteen rows of seats
just back of the orchestra, in which sat the senators.[2694] It was more
than a restoration of the concession made to the knights in 146, which
evidently Sulla had withdrawn.[2695]

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.[2696] It was in this month that delegations from
other states generally came. Often to obtain a hearing they had to bribe
the senators and magistrates.[2697] For that month the Gabinian law
reversed the Pupian[2698] by making senatorial sessions compulsory and
forbidding the concurrence of comitia.[2699] 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.[2700] 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 unknown. A
supplementary measure on the same subject was 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[2701] of his character, which contrasts
with the reputed vileness of Gabinius. But the senate rejected the
proposal on the ground that it had already made sufficient provision
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.[2702] 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).[2703] It had
come to be regarded as inseparable from the sovereignty of the people
to such an extent that all senatus consulta for dispensing 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.[2704] A disturbance
in the assembly, started by the interference of Piso the consul, caused
Cornelius to dismiss the concilium. 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 present, and
that when a resolution of the kind was brought down from the senate to
the people, no one should intercede against the act.[2705] The victory
was with the senate; it gained a legal right to a function which it had
usurped, provision being merely made against abuse. But it exercised
this function by the sufferance of the tribunes, any one of whom could
insist on bringing the dispensing resolution before the people, in which
case his colleagues were forbidden to intercede.[2706]

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.[2707] 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.[2708] Here was a comical 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.[2709]
The lex Acilia Calpurnia, enacted in this way,[2710] inflicted on those
found guilty of the crime a heavy fine, and forever disqualified them
from holding office or sitting in the senate.[2711] Cornelius proposed
other measures, all of which were vetoed by colleagues excepting his
lex concerning the edict of the praetor, described as follows by Dio
Cassius:[2712] “All the praetors themselves compiled and published the
principles according to which they intended 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 written, but often made changes in them and incidentally
a number 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.[2713]

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 consulares 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 provinces for 6000 talents.[2714] 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
Antonius such a command,[2715] which now served Gabinius as a precedent.
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,[2716] and
L. Trebellius, attempted to prevent comitial action. The tribes began
to vote the deposition of Trebellius; but before the eighteenth was
called he desisted.[2717] Thereafter both remained silent, and the law
was passed. Pompey was then elected to the command by the tribes.[2718]
They enacted further that he should have two quaestors, twenty-four
legati pro praetore, 500 ships, 120,000 men, and 5000 cavalry. On one
point only the senate refused its sanction; it would not permit Gabinius
to be a legatus.[2719] 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.[2720] The Gabinian law led to
far-reaching 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.[2721]

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.[2722] It was said by some, though
probably without ground, that the real author was Cornelius.[2723] 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.[2724] 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 Compitalia, 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 invalid.[2725] The behavior of Manilius exposed him to certain
prosecution unless he could win powerful support. This is the motive
ascribed to him by Dio Cassius[2726] for his famous law which conferred
extraordinary power on Pompey for the conduct of the war against
Mithridates.[2727] It gave the Roman general, 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.[2728] The province thus
granted him included 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.[2729] 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.[2730] Its leading
supporters were Caesar and Cicero.[2731] It was so enthusiastically
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 expelling 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,[2732] the Junian of 126,[2733] and in
some respects after the Licinian-Mucian of 95.[2734] Probably to the same
Papius belongs the lex Papia de Vestalium lectione, which limited the
power of choice exercised by the supreme pontiff.[2735]

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[2736] and abolished
by Sulla.[2737]

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 promulgated a bill, comprising
more than forty articles,[2738] with the intention of having it
voted on in January.[2739] The administration of the law was to
be in the hands of ten men elected by seventeen tribes after the
manner of the comitia pontificis maximi,[2740] to hold office five
years.[2741] Candidates should be required to present themselves in
person[2742] (so as to exclude Pompey). This commission was to have the
irresponsible[2743] management of large resources[2744] for the purchase
of land in Italy,[2745] on which they were to plant colonies at their
discretion.[2746] 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
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,[2747] 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.[2748] 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.[2749] Later
in the summer, after the elections of the year had been announced,
a dispensation from the Aelian-Fufian law[2750] enabled him and C.
Antonius, his colleague,[2751] to propose and carry a new statute
concerning bribery at elections.[2752] It increased the penalty on the
divisores,[2753] and forbade any one within the two years preceding the
announcement of a candidacy to give gladiatorial shows excepting in
fulfilment of a testament.[2754] The penalty for the convicted candidate
was ten years’ exile.[2755] 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.[2756] A measure certainly
passed in this year, and probably forming an article of the Tullian lex
de ambitu, forbade candidacies in absentia.[2757] 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 travelling 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.[2758] In this capacity a senator represented the state,[2759]
and could have lictors assigned him by the provincial governors.[2760]
Abuses of this privilege were to the provincials an especially vexatious
form of oppression.[2761] 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,[2762] and
hence did little to remedy the mischief.[2763] 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 prevent the
introduction of forged statutes in the archives,[2764] 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.[2765] 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.[2766] For the year 60 must be mentioned the
pretorian law of Q. Caecilius Metellus Nepos, which abolished vectigalia
in Italy,[2767] and the tribunician rogation of L. Flavius for granting
lands to Pompey’s veterans. The latter failed through the disapproval
of the senate.[2768] Far more interesting because of the procedure,
though otherwise of little consequence, 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.[2769]

The year of Caesar’s consulship was one of unusual legislative activity.
Resuming the agrarian policy of the Gracchi, which had been undone by
the statute of 111,[2770] he promulgated early in the year a bill for
the distribution of lands, which exempted the Campanian[2771] and
Stellatine[2772] territory as well as that of Volaterrae, which Sulla
had confiscated without ejecting the inhabitants.[2773] 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
census.[2774] The beneficiaries were the needy citizens and the veterans
of Pompey.[2775] The lots assigned were to remain inalienable twenty
years.[2776] The work of distribution was to be in the hands of a board
of twenty—vigintiviri[2777]—which should not include the author of
the law.[2778] A sub-committee of this large board must have been the
Vviri agris dandis adsignandis iudicandis,[2779] who in the opinion
of Mommsen[2780] 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,[2781] Caesar without its
sanction presented the bill to the people.[2782] Bibulus, his colleague,
backed by three tribunes of the plebs, not only protested against
the bill,[2783] but resorted to sky-watching and the proclamation of
festivals to prevent its adoption.[2784] Disregarding this opposition,
Caesar with the support of Pompey and Crassus offered his rogation to the
tribes,[2785] 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 enactment or formed a new bill.
In favor of the second alternative it is to be noticed in the first
place that Cicero and others mention Julian agrarian laws,[2786] and
that Cicero’s expression “Campanian lex”[2787] could describe a measure
relating to the Campanian territory but not the whole group of agrarian
provisions of that year. Moreover although Cicero was acquainted with
the Julian rogation from the beginning of the year,[2788] he did not
at Formiae hear of the inclusion of the Campanian territory till near
the end of April.[2789] It might be assumed that after the senate and
Bibulus showed opposition Caesar modified the original rogation before
putting it to vote, but no mention is made of an alteration. Finally Dio
Cassius[2790] and Plutarch[2791] speak distinctly of an earlier and a
later law.[2792] On the whole it seems probable therefore that toward the
end of April Caesar promulgated 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.[2793] The
complete execution of the law would dispose of all public lands in Italy
from which a revenue might be derived. An article required not only
senators within a specified time to swear that they would support the
measures[2794] but also candidates for office for the following year to
give their oath in contio that they would not propose any modification or
repeal of them.[2795]

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, increasing correspondingly the financial
burden on the provinces; it brought relief to many proletarians, while
encouraging militarism through a provision for Pompey’s veterans.
Ostensibly democratic, it cemented and announced to the world the
triumvirate of Caesar, Crassus, and Pompey—a combination of democratic,
plutocratic, and military bossism, which proved more dangerous to
political liberty than had been the dictatorship of Sulla. The last
great agrarian law of the republic contained 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,[2796] the concession from Caesar and the
people served to alienate the feelings of the knights from the optimates
and to attach them to the ambitious consul.[2797] Next to the agrarian
statute, however, the lex de pecuniis repetundis was the most important
piece of legislation of his consulship. Comprising at least a hundred
and one articles,[2798] including much material from earlier laws on
extortion, 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.[2799] 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 officium, including shelter and sustenance for man and beast.[2800]
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,[2801] or to demand of the cities
crown gold for a triumph not decreed by the senate.[2802] On retiring
from his command he was to leave copies of his administrative accounts in
two cities of his province and an exact duplicate in the aerarium.[2803]
It provided further for the punishment of corrupt accusers, jurors, and
witnesses in cases under the law.[2804] A man convicted of the crime
was fined and compelled 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.[2805] He was also to be expelled from
the senate and banished.[2806] The severity of the law is commended by
Cicero.[2807] Caesar’s legislation concerning extortion was reënforced
(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 which however are not definitely known;[2808]
(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.[2809] 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,[2810] Caesar in the beginning of his consulship[2811] carried a
resolution for acknowledging the latter as an ally and friend of the
Roman people.[2812] Later in the year, to repay Pompey for his support
of the agrarian statute, Caesar secured against the will of the senate
the enactment of a law for confirming his ally’s arrangements in the
East.[2813] Lastly may be mentioned the lex curiata for the arrogation
of P. Clodius Pulcher proposed by Caesar in the capacity of pontifex
maximus, a measure considered in an earlier chapter.[2814] 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 provided for by a plebiscite of his friend Vatinius, which
granted him Cisalpine Gaul and Illyricum as a province for five years
beginning March 1, 59.[2815] He was to have three legions[2816] and to
name his own legati, who were to enjoy propretorian rank.[2817] The
senate, which had looked unwillingly upon these proceedings, 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 without Cisalpina as a support, and partly through
fear lest the popular party might gain the additional credit of bestowing
it.[2818] In one respect the position was far better than that held by
Pompey in the East: while winning prestige in a popular conquest[2819]
and attaching to himself a powerful army, Caesar would be near enough to
Rome to control the political situation.[2820] Intellectual 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.[2821]

P. Clodius Pulcher, tribune of the plebs in 58, seems to have worked
partly as an agent of Caesar for the more complete 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.[2822] In vain the optimates complained that the abolition of the
existing price, which was that prescribed by the Sempronian law,[2823]
would rob the treasury of nearly a fifth of its income.[2824] Accepted
by the tribes, the law proved a most effective means of maintaining 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 permitted the free organization of
clubs (collegia),[2825] which a senatus consultum of 64 had strictly
limited,[2826] but which now became an active part of the democratic
organization.[2827] 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.[2828] An article of the same statute declared all dies fasti
available for legislation.[2829] This measure went far toward abolishing
a usage which had made religion a mockery and public 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
testimony.[2830] Another comitial act prohibited the secretaries of the
quaestors from engaging in business in the provinces.[2831] 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.[2832]
Strengthening the Sempronian law of appeal,[2833] 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[2834]—a principle which the populares held to be destructive
of liberty. From a democratic point of view the Clodian law was just
and necessary; but unfortunately Cicero, who in putting to death the
associates 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 plebiscite declared the interdict
to be legally in operation.[2835] 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.[2836]
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.[2837] In spite of such 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 outshone his fellow-triumviri. The only hope
for their ambition was to be found in the good will and favor of the
great proconsul. 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.[2838] As proconsuls
Pompey and Crassus were to be given advantageous commands, and Caesar
was to receive as his reward a prolongation of his governorship.[2839]
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.[2840]
The intercessions of tribunes and all other opposition were violently
overborne, and the rogation was readily accepted by the people.[2841]
Thereupon the two consuls secured the passage of an act for extending
Caesar’s command.[2842]

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 carried through the assembly a lex de
sodaliciis, which increased the penalty for ambitus committed through
the agency of clubs.[2843] It also ordered that the jury in such cases
be made up by the accuser from any four tribes he should choose, however
unfavorable they might be to the accused,[2844] who had merely the
right to reject one of the four tribal decuries thus presented,[2845]
in so far as the court itself did not grant him the further privilege
of rejecting individuals.[2846] It is difficult to understand how
impartial 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.[2847] The attention of
Pompey in his second consulship 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.[2848] 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.[2849] A sumptuary rogation for restricting personal expenditure
he voluntarily withdrew on the advice of Hortensius, who persuaded him
that luxury and delicacy of life were but the fitting adornments of
empire.[2850] His lex iudiciaria ordered the urban praetor to begin the
selection of jurors from the wealthiest of each of the three classes, and
thence to descend 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.[2851] The lex de vi of 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 composition of the court and the penalty to be inflicted.[2852]
Of his statute 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,[2853] and as Pompey did
not dare antagonize him by abolishing the plebiscite here mentioned, he
secured the adoption of an additional law for excepting such candidates
as had been or should be dispensed by comitial action.[2854] 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,[2855]
ordered that five years should intervene between the expiration of a
magistracy and the beginning of the corresponding promagistracy.[2856]
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 prolonging 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,[2857] 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 senate was
given an opportunity to appoint a successor to him on or after March 1,
50.[2858]

From the close of the second consulship of Pompey to the beginning of
Caesar’s dictatorship there was no important legislation.[2859]


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 beginning of his supremacy
essentially a time of decline. Although Caesar continued to submit his
plans to the assemblies for legalization, 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 success 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.[2860] 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.[2861] About the middle of
October, 48, when the senate and people heard of the death of Pompey,
they conferred on him by law (1) absolute judicial authority over the
partisans of Pompey,[2862] (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,[2863] (4) the dictatorship for an indefinite period, to
which he was appointed by his colleague in the consulship,[2864] (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.[2865] 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
extraordinary offices. These powers were doubtless conferred by comitial
action. At the same time great honors were heaped upon him, probably
through senatus consulta.[2866] Again in April, 45, after the battle
of Munda honors were showered on him in still greater profusion.[2867]
Politically the most important were the lifelong, hereditary title of
imperator, which he bore as a second cognomen,[2868] the sole right to
command soldiers and to manage the public funds, the privilege of being
consul ten years in succession (which he did not use), the prefecture
of morals and the dictatorship for life, and finally deification under
the title of the “Invincible God.”[2869] 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[2870]
and the right to have as many wives as he pleased—the latter granted by
a plebiscite of C. Helvius Cinna.[2871] The theocratic monarchy which
the Romans were erecting for him on the ruins of the republic left no
independence to the senate or the assemblies. The functions of the latter
were especially abridged by the large power of nominating and appointing
officials possessed by the monarch.[2872] 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.[2873]
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.[2874] The third
article was a renewal of an old law.[2875] Another statute,[2876] 47,
released from a 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.[2877] These houses were private property, and the law was
therefore a partial abolition of private debts.[2878] 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 150,000.[2879] He provided
for the surplus population as well as for his veterans by colonies in
Gaul, Spain, Africa, Macedonia, Greece, and Asia.[2880] Eighty thousand
citizens found homes in these provincial settlements.[2881]

Among Caesar’s most admirable traits was his liberality in restoring to
their civil rights those who were under disfranchisement and in granting
the citizenship to aliens. At his suggestion M. Antonius, tribune of the
plebs in 49, secured the enactment of a plebiscite for restoring the ius
honorum to the children of those whom Sulla had proscribed.[2882] 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.[2883] 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.[2884]
Another law of unknown authorship confirmed the grant of the franchise
already made on his own responsibility to the people of Gades.[2885]

Among his administrative improvements was the increase in the number of
praetors from eight to ten[2886] in 47, for which a comitial statute may
be assumed.[2887] The people surrendered to him a large part of their
electoral right through the plebiscite of L. Antonius,[2888] December,
45, which granted him the privilege of nominating and presenting to
the comitia a half of the candidates below the consulship.[2889] 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.[2890]

To the year 46 belongs Caesar’s legislation on judicial matters. First
disqualifying the tribuni aerarii for jury service,[2891] he ordered
through the comitia that the courts be composed exclusively of the
senators and knights.[2892] 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 association with himself in the
administration.[2893] It is known that he enacted laws on individual
crimes.[2894] A lex de vi and a lex de maiestate are mentioned,[2895]
but it is not known in what they differed from those of earlier or later
date.[2896] His sumptuary statute of the same year[2897] restricted the
expense of the table,[2898] sepulchral monuments, dwellings,[2899]
furniture, clothing, jewels, and other luxuries, covering the ground
in great detail.[2900] A Cassian plebiscite empowered him to recruit
the patrician rank[2901]—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,[2902] 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.[2903]
Although there has been much controversy regarding the nature of the
document,[2904] it is most probably a general municipal statute. Far
from exhaustive, it had to be supplemented by special laws for the
several cities.[2905] The extant fragment, which seems to begin with the
second table, regulates (1) applications of citizens resident at Rome
for free grain,[2906] (2) the aedilician supervision of the streets,
buildings, and games of the capital,[2907] (3) the qualifications for
the magistracies and the decurionate in the municipia,[2908] (4) the
introduction of the Roman census in the municipia,[2909] and (5) of
individual Roman statutes in those municipia which enjoyed the laws of
Rome.[2910] 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.[2911]

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.[2912] 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.[2913]
It was arbitrarily used by the consul for legalizing every whim of his
own. His colonial law, passed shortly after Caesar’s assassination,[2914]
seems to have been used by him for establishing in Italy a permanent
support for himself.[2915] 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 cultivation[2916]—and other
extensive tracts.[2917] The execution of the measure was in the hands of
septemviri,[2918] including the author[2919] and his two brothers.[2920]
It was annulled in the following year by the senate on the ground that it
had been violently passed.[2921]

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 seventeen tribes.[2922]
Next to colonization, however, his chief legislative interest was in
the reform of the courts. He repealed the Julian statute concerning the
qualifications of jurors;[2923] and instead of restoring the eligibility
of the tribuni aerarii, he made up a third decury of retired centurions
and other veterans.[2924] His law for granting an appeal to the people
from the quaestiones de vi and de maiestate,[2925] 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 these crimes must
necessarily be under conditions as they then existed.[2926] 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.[2927]

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.[2928] 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.[2929] 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.[2930] We are less
certain that the measure of Octavianus in 41 for a partial remission of
rents was offered to the people.[2931] 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.[2932] We need not be surprised to find that the
rulers gladly allowed the people to vote them honors. In their first
year they were awarded civic crowns by a comitial act, doubtless of the
tribes;[2933] and in 35 the honors bestowed upon Octavia and Livia
probably came through a plebiscite, as did certainly the triumph voted
to Octavianus.[2934] Last may be mentioned the law of L. Saenius, consul
in 30, supported by a senatus consultum, which empowered Octavianus to
create new patricians.[2935]

    Schulze, C. F., _Volksversammlungen der Römer_, 124-39; Peter,
    C., _Epochen der Verfassungsgeschichte der röm. Republik_,
    165 ff.; _Gesch. Roms_, bk. VII. ch. v; bks. VIII-X; Ihne,
    _Hist. of Rome_, bk. VII. chs. xxi-xxiii; Lange, _Röm.
    Alt._ iii. 146-597; cf. ii, see index s. the various laws;
    _Commentationes 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 trinum nundinum_, etc., ibid. ii. 214-70;
    Long, G., _Decline of the Roman Republic_, 5 vols.; Herzog,
    E., _Gesch. und System der röm. Staatsverf._ i. 509-65; ii.
    1-130; Mommsen, _History of Rome_, bk. IV. ch. x; bk. V; _Röm.
    Staatsr._ and _Röm. Strafr._ see indices s. the various laws,
    courts, etc.; _Ein zweites Bruchstück 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).
    1-11; _Ueber die lex Mamilia Roscia Peducaea Alliena Fabia_,
    in _Röm. Feldmess._ ii. 221-6; Neumann, C., _Gesch. Roms_,
    i. 602-23; ii. entire; Ferrero, G., _Greatness and Decline
    of Rome_; Schiller, H., _Geschichte der röm. Kaiserzeit_,
    I. bk. i; Lengle, _Sullanische Verfassung_; Sunden, J. M.,
    _De tribunicia potestate a L. Sulla imminuta quaestiones_;
    Freeman, E. A., _Lucius Cornelius Sulla_, in _Hist. Essays_,
    ii. 271-306; Wilmanns, _Ueber die Gerichtshöfe während des
    Bestehens der lex Cornelia iudiciaria_, in _Rhein. Mus._ N.
    F. xix (1864). 528-41; Voigt, M., _Ueber die lex Cornelia
    sumptuaria_, in _Ber. sächs. Gesellsch. d. Wiss._ xlii
    (1890). 244-79; Nipperdey, K., _Die leges annales der röm.
    Republik_, in _Abhdl. sächs. Gesellsch. d. Wiss._ v. (1870).
    1-88; Keil, J., _Zur lex Cornelia de viginti quaestoribus_, in
    _Wiener Studien_, xxiv (1902). 548-51; Ritschl, F., _In leges
    Viselliam Antoniam Corneliam observationes 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
    “Verbesserung” des clodianischen Gesetzwurfes de exilio
    Ciceronis_, in _Philol._ N. F. xiii (1900). 272-304; _Noch
    einmal die correctio der lex Clodia de exilio_, ibid. xv.
    42-70; Gurlitt, _Lex Clodia de exilio Ciceronis_, ibid.
    xiii. 578-83; Greenidge, A. H. J., _The lex Sempronia and
    the Banishment of Cicero_, in _Cl. Rev._ vii (1893). 347 f.;
    Schmidt, O. E., _Der Briefwechsel des M. Tullius Cicero von
    seinem Prokonsulat in Cicilien bis zu Cäsars Ermordung_;
    John, C., _Die Entstehungsgeschichte der catilinarischen
    Verschwörung_, in _Jahrb. f. cl. Philol. Supplb._ viii (1875,
    1876). 701-819; Abbott, F. F., _The Constitutional Argument in
    the Fourth Catilinarian Oration_, in _Cl. Journ._ ii (1907).
    123-5; Napoleon III, _Jules César_, 2 vols.; Fowler, W.,
    _Julius Caesar_; Nissen, H., _Der Ausbruch des Bürgerkrieges
    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 Cäsar: das Recht über Krieg und Frieden_; _Caesar und
    die tribunizische Gewalt_; Hackel, H., _Die Hypothesen über
    die lex Iulia municipalis_, in _Wiener Studien_, xxiv (1902).
    552-62; Cuq, E., _Juges plébéiens de colonie de Narbonne_,
    in _Mélanges d’archéologie et d’histoire_ (1881). 297-311;
    Kornemann, _Die cäsarische Kolonie Karthago und die Einführung
    röm. Gemeindeordnung in Africa_, in _Philol._ N. F. xiv
    (1901). 402-26; Liebenam, W., _Gesch. und Organisation d. röm.
    Vereinswesens_; Waltzing, J. P., _Corporations professionelles
    chez les Romains_, i. 78 ff.; Babelon, E., _Monnaies de la
    république Romaine_, i. 79-88; Dreyfus, R., _Lois agraires_,
    pt. iii; Toutain, J., _Municipium_, in Daremberg et Saglio,
    _Dict._ iii. 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: Apparitores (Habel);
    2482-4: C. Aurelius Cotta (Klebs); 2485-7: L. Aurelius Cotta
    (idem); iii. 1376 f.: C. Calpurnius Piso (Münzer); iv. 82-8: P.
    Clodius Pulcher (Fröhlich); 1252-5: C. Cornelius (Münzer); iv.
    1287 f.: L. Cornelius Cinna—son of the famous democratic consul
    (idem); 1380 f.: Cn. Cornelius Lentulus Clodianus (idem);
    1522-66: L. Cornelius Sulla Felix (Fröhlich); 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.[2936] The bill, as first presented to the senate and published
in the city on wooden tablets,[2937] was merely tentative; for discussion
in the senate or the expression of public opinion might suggest
changes[2938] or even induce the author to withdraw the proposal.[2939]

At the head of the law after its adoption was inserted the index and
praescriptio,[2940] of which the consular lex Quinctia de aquaeductibus,
accepted by the tribes in the year 9 B.C., offers a good example:[2941]

“T. Quinctius Crispinus consul populum iure rogavit, populusque iure
scivit in foro pro rostris aedis divi Iulii pr(idie) _K_ Iulias.
Tribus Sergia principium fuit, pro tribu Sex.... L. f. Virro _primus
scivit_.”[2942]

It contains the name of the rogator,[2943] his office, the body of
citizens, whether populus or plebs, to which the proposal is offered,
the place of the assembly,[2944] the date, the century (praerogativa) or
the tribe or curia (principium) which voted first, and the name of the
citizen who has been granted the honor of casting the first vote for his
praerogativa or principium.[2945] If the senate has given its sanction,
that fact is indicated by the insertion of the phrase “de s(enatus)
s(ententia).”[2946] In case the proposal is by a tribune of the plebs, it
is strictly a plebi scitum; but that its equivalence to a lex may be made
clear, it is described as a lex plebeive scitum.[2947]

The body of the law is divided into chapters separated by spaces,
sometimes numbered, and occasionally bearing individual titles.[2948]
Last comes the sanction,[2949] which provides for the enforcement. Some
laws, however,—termed leges imperfectae—lack this part.[2950] Usually the
sanction prescribes the form of procedure according to which offenders
are to be tried.[2951]

If the author of the new proposal has no desire to disturb any existing
law, this fact is indicated by the insertion of the formula E(x) H(ac)
L(ege) N(ihilum) R(ogatur).[2952] As a protection from the operation of
earlier laws left in whole or in part unrepealed by the new statute, the
latter is provided with a declaration that no attempt is hereby made to
legalize anything illegal.[2953] By an analogous statement unconscious
trespassing upon the rights of religion is rendered harmless.[2954] In
accordance with a law of the Twelve Tables[2955] provision is further
made against the consequences of conflict with other laws by the
declaration that if any one in carrying out this law shall trespass
against other statutes or senatus consulta, his act shall render him in
no way liable to such earlier laws or decrees.[2956] A provision may
also be added against illegal alteration or repeal.[2957] Sometimes the
proposer includes an article for compelling senators and magistrates
to uphold his law, should it be enacted,[2958] or for otherwise
overcoming opposition to its enforcement,[2959] or for making repeal
difficult.[2960] It becomes binding from the moment when the author
announces its adoption by the comitia, excepting in case time has to be
given the senators and magistrates for swearing to it.[2961] The law is
then engraved on a bronze tablet,[2962] the original copy of which is
kept by the quaestors in the aerarium.[2963] Other copies are posted in
public places where all can read it.[2964]


II. _Comitial Procedure_

The tribal assembly convened under the presidency of a tribune or aedile
of the plebs,[2965] in which case the gathering was technically the
plebs;[2966] or as the populus under a patrician magistrate—dictator,
consul, praetor,[2967] curule aedile,[2968] pontifex maximus,[2969]
or any extraordinary magistrate who possessed the ius agendi cum
populo.[2970] It met indifferently within or without the pomerium,
usually on the Capitoline hill in the precinct of the temple of
Jupiter,[2971] in the Forum and comitium,[2972] the Campus Martius,[2973]
and within the latter in the Flaminian meadow or Flaminian Circus.[2974]
Meetings called by tribunes had to convene within the first milestone,
which bounded the authority of these officials,[2975] whereas we hear
of a tribal assembly called by a consul in the military camp at Sutrium
(357).[2976] The contio, described in an earlier chapter, was transformed
into comitia by order of the presiding magistrate directing the people
to take their places in their respective tribes.[2977] Before this
command was given a tribe was drawn by lot to receive the Latins who
were at Rome.[2978] A second tribe was then drawn as a principium
to cast the first vote.[2979] The bringing of the urn[2980] and the
sortition were the last acts of the contio. To facilitate the division
ropes were stretched across the Forum or other assembly-place, forming
as many compartments as there were tribes.[2981] In time a permanent
enclosure, termed Saepta,[2982] was built for the comitia.[2983] If the
magistrate found that an entire tribe was absent, he assigned to it for
the occasion a few citizens from some other, in order that in theory all
thirty-five tribes—the universus populus Romanus—might be present.[2984]
After the tribes were assembled in their comitia as here described,
the principium was called to vote. This point terminated the right
of intercession[2985] and of obnuntiating an evil omen discovered in
watching the sky.[2986] When the suffrage of the principium was given and
announced,[2987] all the remaining tribes voted simultaneously.[2988] In
earlier time a rogator stood at the exit of each saeptum, and received
the oral votes of the citizens as they passed out one by one.[2989] After
the introduction of the ballot,[2990] the state provided little tablets
inscribed with abbreviations for “ut rogas” and “antiquo” for affirmative
and negative votes respectively,[2991] and for elections blank tablets
on which the names of the candidates could be written.[2992] They were
deposited in boxes (cistae) placed at the exits above mentioned,[2993]
under the charge of rogatores, who, having lost their original function,
were now often, and more aptly, called custodes.[2994] They counted
(diribitio) the ballots, and reported (renuntiatio) the results to the
president.[2995] The latter had a right to announce to the public the
returns from the tribes in whatever order he pleased, but he usually
preferred to determine the succession by lot.[2996] In the election of
any college of magistrates each citizen voted for as many candidates as
there were places to be filled, and the announcements for each continued
till a majority was reached in his favor. Precedence in honor within the
college depended upon priority of election.[2997] The declaration of the
vote by the praeco at the command of the president closed the comitial
act.[2998] If for any reason the presiding magistrate discontinued
the announcement before a majority was reached, the vote was without
effect.[2999] The session of any assembly had to begin and end between
sunrise and sunset.[3000]

The comitia curiata, presided over by the king, the interrex, and
possibly by the tribunus celerum,[3001] and in the republican period
by the dictator,[3002] consul,[3003] interrex,[3004] praetor,[3005]
pontifex maximus,[3006] or rex sacrorum,[3007] met always within the
pomerium,[3008] usually in the comitium,[3009] or for religious purposes
in front of the Curia Calabra on the Capitoline hill.[3010] It was
called together by a curiate lictor[3011] at the sound of the lituus or
tuba.[3012] The procedure, which in general was like that of the tribal
assembly, and which has been touched upon in the chapters on the comitia
calata and curiata, does not require further consideration here.[3013]

The comitia centuriata could be summoned for voting by no magistrates
in their own name and under their own auspices excepting those who were
vested with the imperium[3014]—the dictator, consul, interrex for holding
elections, the praetor for judicial business,[3015] and all extraordinary
magistrates with consular power. The duoviri perduellioni iudicandae, the
quaestors, and the tribunes of the plebs could summon this assembly for
judicial business under the auspices only of a magistrate cum imperio, as
the consul or more especially the praetor.[3016] It always met outside
the pomerium, usually in the Campus Martius,[3017] at the call of an
accensus, who sounded the trumpet (classicum) at daybreak along the city
wall.[3018] During the session the citizens in the assembly could see a
flag waving above the Janiculum to signify that this post was occupied by
a garrison as a protection for the city while they were engaged outside
in a public duty.[3019] As in the case of the tribal assembly, the contio
was transformed into comitia by an order of the president commanding
the citizens to separate into their respective voting groups.[3020] The
place of meeting, termed ovile[3021] (sheepfold), was divided by ropes
or wooden fences into as many compartments as there were centuries in
the largest voting division—probably eighty-seven.[3022] An elevated
passage (pons) formed the exit of each compartment.[3023] The members of
a century, while passing out one by one, gave their votes to the rogator,
in the same way as the tribesmen in the comitia tributa. After the ballot
was introduced, it was used in all assemblies alike.[3024] The order
of voting before and after the reform has been sufficiently explained
in an earlier chapter.[3025] In general the principles governing the
announcement of votes, interruptions, and adjournments were the same
for all three assemblies. The length of the assemblies must have varied
according to the form of organization, the number of voters present, and
various other circumstances. In the time of Caesar the process in the
comitia centuriata, on an occasion in which there was no delay, lasted
five hours.[3026] We should therefore assume at least an hour for the
voting of the tribes.[3027]


III. _Comitial Days_

The people could meet for voting on comitial days only[3028]—marked
=C= in the calendar.[3029] They excluded the dies nefasti—marked =N=,
=NP=, or =NF=—on which religion forbade that public business should be
done.[3030] They excluded further the two days marked Q(uando) R(ex)
C(omitiavit) F(as),[3031] the one day marked Q(uando) ST(ercus) D(eletum)
F(as)[3032]—because on these days it was impossible to open the assembly
in the morning as usage prescribed—and the eight days marked =EN=,[3033]
the morning and evening of which were alone nefasti, the intervening
part being free for business. Equally distinct from the comitial days
were the dies fasti non comitiales, marked =F=, and in this volume
termed simply fasti.[3034] They were reserved for judicial business.
The pre-Julian year contained a hundred and eight nefasti[3035] and
forty-five fasti, leaving a hundred and ninety-one comitial days.[3036]
The ten days added by Caesar are all marked =F=.[3037] It is to be
noticed, however, that those days marked =C= on which fell in any year
extraordinary or changeable festivals were thereby rendered unfit for
comitia.[3038]

It seems probable that in early time market-days (nundinae) were
not wholly devoted to trade[3039] and to the settlement of cases
at law,[3040] but that they could be used equally well for voting
assemblies,[3041] till the Hortensian statute of 287 declared those
marked =F= and =C= to be fasti, reserving them thus for judicial business
and prohibiting from them voting assemblies of every kind.[3042] The
general tendency during the republic was to restrict the power of the
people by lessening the number of days on which they could meet for
passing resolutions.[3043]

    Lange, _Römische Altertümer_, ii. 649-54; Madvig, _Verfass, und
    Verw. d. röm. Staates_, i. 246-73; Herzog, _Röm. Staatsverf._
    i. 1105-13; Karlowa, _Röm. Rechtsgesch._ i. 388-448; Mommsen,
    _Röm. Staatsr._ iii. 314 f., 396-419; in _CIL._ i. p. 203
    ff., 290 ff.; Liebenam, in Pauly-Wissowa, _Real-Encycl._ iv.
    482-4, 687-93, 705-8; Humbert, in Daremberg et Saglio, _Dict._
    i. 1377, 1379 f.; Cuq, ibid. iii. 1122 ff.; Hübner, A., _De
    senatus populique Romani actis_; Ritschl, F., _In leges
    Viselliam Antoniam Corneliam observationes epigraphicae_, in
    _Opuscula Philol._ iv. 427-45; Egbert, _Latin Inscriptions_,
    348-50; Cagnat, _Épigraphie Lat._ 265-7; Marquardt, _Röm.
    Staatsv._ iii. 289 ff.; Wissowa, _Religion und Kultus der
    Römer_, 368 ff.; _Comitiales dies_, in Pauly-Wissowa,
    _Real-Encycl._ iv. 716; Fowler, _Roman Festivals_, 8 ff.




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 sacerdotal 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 centuries, classes, and tribes, originally
existed independently of the assembly for various administrative purposes
and were brought into connection with that institution as convenient
systems 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 suffrage. Its power was at first slight vague, and
chiefly receptive. 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 legislation (509-450)
the magistrates and senate exercised almost absolute control over the
administration. At the very beginning the comitia centuriata—a newly
established timocratic institution—assumed the right to enact laws, which
for a long time were substantially limited to matters directly affecting
the constitution; 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 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 centuriata, whence it was adopted by
the other assemblies.

The Twelve Tables (451-450) confirmed the comitia centuriata in the
rights it had previously assumed; and if not expressly, at least
by implication they granted legislative and judicial power 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 auctoritas) 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 ratification 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 judicial commission placed the
citizens at the mercy of the government. 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 appointment 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 plebiscite. Meanwhile in administrative and in
constitutional legislation 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 (1) 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, however, before this
incompetency became serious. Though henceforth 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 enactment of the Hortensian statute the comitia tributa enjoyed
almost exclusive possession of the legislative function. The larger share
fell to the tribunician assembly, which excelled in aggressiveness, 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 outburst of activity (232-201). The assemblies now recovered all
they had lost in the preceding age and made fresh gains. Noteworthy
are the sumptuary, monetary, private, and family statutes, 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 admitted the theory of popular sovereignty,
as they could well afford to do in view of their thorough control of
all governmental 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 judicia 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 special courts. In these ways
the nobility was making great inroads on popular liberty.

In the beginning of the revolutionary period (134-30) the tribal
assembly, liberated for a time from servitude to the plutocracy, 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 regeneration of society. But its variable composition
precluded consistency 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 destroying 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 violence 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 reaction 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 Cæesar 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 assassination 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 plebeian 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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    Casagrandi, V. Le minores gentes ed i patres minorum gentium,
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    Cassiodorus, Magnus Aurelius. Opera omnia, (in) Patrologiae
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    Charis. = Charisius, F. S. Ars grammatica (or Instit. Gram.),
    (in) Grammatici Latini, i, ed. Keil. Leipzig, 1857.

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    Clason, O. Kritische Erörterungen über die römischen Staat.
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    Corp. Gloss. Lat. = Corpus glossariorum Latinorum. 7 vols. Ed.
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    Corssen, W. [Ausspr.]. Ueber Aussprache Vokalismus und Betonung
    der lateinischen Sprache. 2d ed. 2 vols. Leipzig, 1868, 1870.

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    Cuntz, O. Polybius und sein Werk. Leipzig, 1902.

    Cuq, E. Les juges plébéiens de la colonie de Narbonne, (in)
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    ⸺ Lex publica, (in) Daremberg et Saglio, Dict. iii. 1121-74.


    Daremberg et Saglio, [Dict.]. Dictionnaire des antiquités
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    Deecke, W. Die Falisker: eine geschichtlich-sprachliche
    Untersuchung. Strassburg, 1888.

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    Rahmen der politischen Geschichte, i: das Altertum. Berlin,
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    Deloume, A. Les manieurs d’argent à Rome. Paris, 1890.

    _Denkschr. d. kaiserl. Akad. d. Wiss._ = _Denkschriften
    der kaiserlichen Akademie der Wissenschaften.
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    De Sanctis, G. Storia dei Romani: la conquista del primato in
    Italia. 2 vols. Milan, Turin, etc., 1907.

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    Drumann-Gröbe, Gesch. Roms = Drumann, W., Geschichte Roms in
    seinem Uebergange von der republikanischen zur monarchischen
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    Dupond, A. De la constitution et des magistratures Romaines
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    Egbert, J. C. Introduction to the Study of Latin Inscriptions.
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    _Ephem. Ep._ = _Ephemeris epigraphica._ Rome and Berlin.

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    Sertorii bellis civilibus, (in) Sallust, Omnia opera, 507-15.
    Paris, 1821. This work is also referred to as Jul. Exuper.


    Ferrero, G. Greatness and Decline of Rome. Translated into
    English by Zimmern and others. 5 vols. New York, 1907-1909.
    Suggestive but untrustworthy.

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    Fowler, W. W. Julius Caesar. New York and London, 1894.

    ⸺ Notes on Gaius Gracchus. _English Historical Review_, xx
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    ⸺ Gaius Gracchus and the Senate. _Classical Review_, x (1896).
    278-80.

    ⸺ The Roman Festivals of the Period of the Republic. London,
    1899.

    Freeman, E. A. Lucius Cornelius Sulla, (in) Historical Essays,
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    Fröhlich, F. Beiträge zur Kriegsführung und Kriegskunst der
    Römer zur Zeit der Republik. Berlin, 1886.

    Fröhlich (no initial given). P. Clodius Pulcher, (in)
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    ibid. iv. 1522-66.

    Frontin. Contr. = Frontinus, Julius. De controversiis, (in)
    Grom. Vet. 9-26, ed. Lachmann. Berlin, 1848.

    Fronto, M. Cornelius. Epistulae, ed. S. A. Naber. Leipzig,
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    Fustel de Coulanges. The Ancient City. Translated from the
    French. Boston and New York, 1889.


    Gardner, P. As, (in) Smith, W., Dict. i. 201-8. 3d ed. 2 vols.
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    Garofalo, F. P. I fasti dei tribuni della plebe della
    repubblica Romana. Catania, 1889.

    ⸺ L’origine e l’elezione dei tribuni e degli edili della plebe,
    etc. Catania, 1890. Not altogether accurate.

    ⸺ Sul plebiscitum Atinium. Catania, 1896.

    ⸺ Lex Cincia de donis et muneribus. _Bulletino dell’istituto di
    diritto Romano_, xv (1903). 310-12.

    Genz, H. [Centurienverf.]. Die servianische
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    ⸺ [Patr. Rom.] Das patricische Rom. Berlin, 1878.

    ⸺ Die Centuriatcomitien nach der Reform. Freienwald, 1882.

    Gerathewohl, H. [Reiter und Rittercent.] Die Reiter und die
    Rittercenturien zur Zeit der römischen Republik. Munich, 1886.

    Gilbert, O. Geschichte und Topographie der Stadt Rom im
    Altertum. 3 parts. Leipzig, 1883-1890.

    Girard, P. F. [Hist. d. org. jud.] Histoire de l’organisation
    judiciaire des Romains, i. Paris, 1901.

    ⸺ [Textes] Textes de droit Romain. 3d. ed. Paris, 1903.

    Goguet, R. [Cent.] Droit Romain des centuries. Thesis. Paris,
    1890. Of little value.

    Gomont, M. H. Les chevaliers Romains depuis Romulus jusqu’à
    Galba. Paris, 1854.

    Göttling, K. W. Geschichte der römischen Staatsverfassung.
    Halle, 1840.

    Gramm. Lat. = Grammatici Latini, ed. H. G. T. Keil. 7 vols.
    Leipzig, 1855-1880.

    Gran. Licin. = Granius Licinianus. Annalium quae supersunt, ed.
    Pertz. Berlin, 1857.

    Greenidge, A. H. J. The Lex Sempronia and the Banishment of
    Cicero. _Classical Review_, vii (1893). 347 f.

    ⸺ Roman Public Life. London and New York, 1901.

    ⸺ Legal Procedure of Cicero’s Time. London and New York, 1901.

    ⸺ A History of Rome during the Later Republic and the Early
    Principate, i. New York, 1903.

    Greenidge, A. H. J. The Authenticity of the Twelve Tables.
    _English Historical Review_, xx (1905). 1-21.

    Greenidge and Clay. Sources for Roman History, 133-70 B.C.
    Oxford, 1903.

    Grenfell, B. P., and Hunt, A. S. Oxyrhynchus Papiri, iv.
    90-116. London, 1904. For the newly discovered epitome of Livy,
    including text and commentary. See also Kornemann.

    Grom. Vet. = Gromatici veteres, ed. K. Lachmann. Berlin, 1848.

    Grotefend, C. L. Imperium Romanum tributim descriptum.
    Hannover, 1863.

    Gudeman, A. Concilium, (in) Thesaurus linguae Latinae, iv. 44-8.

    Guiraud, P. De la réforme des comices centuriates au IIIe
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    Gurlitt, L. Lex Clodia de exilio Ciceronis. _Philol._ N. F.
    xiii (1900). 578-83.


    Habel, P. Apparitores, (in) Pauly-Wissowa, Real-Encycl. ii.
    191-4.

    Hackel, H. Die Hypothesen über die sogenannte lex Iulia
    municipalis. _Wiener Studien_ (1902). 552-62.

    Haeberlin, E. J. Del più antico sistema monetario presso
    i Romani, v. _Rivista italiana di numismatica_, xix
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    Münzblätter_, 1905, 1906.

    Hagge. Einige Bemerkungen über die lex Servilia repetundarum.
    Glückstadt, 1845.

    Hallays, A. Les comices à Rome. Dissertation. Paris, 1890. Of
    little worth.

    Hartmann, Ambitus. (in) Pauly-Wissowa, Real-Encycl. i. 1800-3.

    Hegewisch, D. H. Geschichte der gracchischen Unruhen in der
    römischen Republik. Hamburg, 1801.

    Helbig, W. Die Italiker in der Poebene. Leipzig, 1879.

    ⸺ (An illustration of Adrogatio.) _Comptes rendus de l’acad.
    des inscriptions et belles-lettres_, xxi (1893). 350-3.

    ⸺ Contribution à l’histoire de l’equitatus Romain. ibid. 1904.
    ii. 190-201.

    ⸺ Les attributs des saliens. ibid. 206-12.

    ⸺ Sur les attributs des saliens. _Mémoires de l’acad. des
    inscriptions et belles-lettres_, xxvii² (1905). 205-76.

    ⸺ Zur Geschichte des römischen Equitatus A. Die Equites als
    berittene Hopliten. _Abhdl. d. bayer. Akad. d. Wiss._ xxiii
    (1905). 267-317.

    ⸺ Die Castores als Schutzgötter des römischen Equitatus.
    _Hermes_, xl (1905). 101-15.

    Hennebert, A. Histoire de la lutte entre les patriciens et les
    plébéiens à Rome. Gand, 1845.

    Hennes. Das dritte valerisch-horatische Gesetz und seine
    Wiederholungen. Program. Bonn, 1880.

    Henze. Publius Cornelius Scipio Africanus (Maior), (in)
    Pauly-Wissowa, Real-Encycl. iv. 1462-70.

    _Hermes_ = _Hermes: Zeitschrift für classische Philologie._
    Berlin.

    Herzog, E. Lex sacrata und das Sacrosanctum. _Jahrb. f. cl.
    Philol._ xxii (1876). 139-50.

    ⸺ Die Charakter der Tributcomitien im fünften und sechsten
    Jahrhundert der Stadt und die Reform der Centuriatcomitien.
    _Philol._ xxiv (1876). 312-29.

    ⸺ Glaubwürdigkeit der Gesetze bis 387 der Stadt. Tübingen, 1881.

    ⸺ [Röm. Staatsverf.] Geschichte und System der römischen
    Staatsverfassung. 2 vols. Leipzig, 1884, 1887.

    Hesky, R. Anmerkungen zur lex Acilia repetundarum. _Wiener
    Studien_, xxv (1903). 272-87.

    Heydenreich, E. Livius und die römische Plebs, (in) Sammlung
    gemeinverständlicher wissenschaftlicher Vorträge, xvii (1882).
    581-628.

    Hill, G. F. Handbook of Greek and Roman Coins. New York, 1899.

    Hirschfeld, O. Der Endtermin der gallischen Statthalterschaft
    Caesars. _Klio_, iv (1904). 76-87.

    Hoffman, E. Die patricischen und plebeiischen Curien. Vienna,
    1879.

    Hoffmeister, K. Die wirtschaftliche Entwickelung Roms. Vienna,
    1899.

    Holzapfel, L. Il numero dei senatori Romani durante il periodo
    dei re. _Rivista di storia antica_, ii. 2 (1897). 52-64.

    ⸺ Die drei ältesten römischen Tribus. _Beitr. z. alt. Gesch._ i
    (1901). 228-55.

    Hüllmann, K. D. Römische Grundverfassung. Bonn, 1832.

    ⸺ Ursprünge der römischen Verfassung durch Vergleichungen
    erläutert. Bonn, 1835.

    Hülsen, C. Caere, (in) Pauly-Wissowa, Real-Encycl. iii. 1281-3.

    ⸺ The Roman Forum. Translated from the 2d German edition by J.
    B. Carter. 2d English ed. Rome, 1909.

    Hultsch, F. Denarius, (in) Pauly-Wissowa, Real-Encycl. v.
    202-15.

    Humbert, G. Accensus, (in) Daremberg et Saglio, Dict. i. 16
    ff. Aedilis. ibid. 95-100. Ager publicus. ibid. 133-8. Census.
    ibid. 1003-17. Classis. ibid. 1224 f. Comitia. ibid. 1374-1401.
    Concilium. ibid. 1432 f. Contio. ibid. 1484 f. Frumentariae
    leges. ibid. ii. 1346-8.

    Huschke, Ph. E. [Verf. d. Serv.] Die Verfassung des
    Königs Servius Tullius als Grundlage zu einer römischen
    Verfassungsgeschichte. Heidelberg, 1838.

    ⸺ Die lex Sempronia iudiciaria und ihr Verhältniss zur lex
    Acilia repetundarum. _Zeitschr. f. Rechtsgesch._ v (1866).
    46-84.

    Hyg. Cond. Agr. = Hyginus. De condicionibus agrorum, (in)
    Grom. Vet. ed. K. Lachmann, 113-24. [Lim. Const.] De limitibus
    constituendis ibid. 166-208.


    Ihne, W. The Asylum of Romulus. _Classical Museum_, iii (1846).
    190-3.

    ⸺ Forschungen auf dem Gebiete der römischen
    Verfassungsgeschichte. Frankfurt am Main, 1847. This study is
    translated into English by Haywood under the title, Researches
    into the History of the Roman Constitution. London, 1853.

    ⸺ Ueber die Entstehung und die ältesten Befugnisse des
    römischen Tribunats. _Rhein. Mus._ xxi (1866). 161-79.

    ⸺ Die Entstehung der servianischen Verfassung, (in) Symbola
    philologorum Bonnensium, 629-44. 1864-1867.

    ⸺ History of Rome. 5 vols. London, 1871-1882.

    ⸺ Die Entwickelung der Tributcomitien. _Rhein. Mus._ N. F.
    xxviii (1873). 353-79.

    ⸺ Early Rome. New York, 1890.

    Inc. Auct. = Incertus Auctor. Magistratuum et sacerdotiorum P.
    R. expositiones ineditae, ed. Ph. E. Huschke. Vratislavia, 1829.

    Ined. Vat. See Arnim, H. von.

    Isid. Etym. = Isidorus Hispalensis. Etymologiae, (in) Opera
    omnia, iii, ed. Migne. Paris, 1878.

    Isler, M. Ueber das poetelische Gesetz de ambitu. _Rhein. Mus._
    xxviii (1873). 473-7.


    _Jahrb. f. Philol._ = _Neue Jahrbücher für Philologie und
    Paedagogik._ Second title: _Jahrbücher für classische
    Philologie._ Leipzig.

    _Jahresb. ü. Altwiss._ = _Jahresbericht über die Fortschritte
    der classischen Altertumswissenschaft._ Leipzig.

    John, C. Entstehungsgeschichte der catilinarischen
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    ⸺ Die Könige im alten Italien. Berlin, 1887.

    Jul. Exuper. See Exup.

    Julius Victor, C. Ars Rhetorica, (in) Orelli-Baiter, Ciceronis
    Opera, V. 195-269. Turici, 1833.


    Kalb, W. Jahresbericht über römischen Juristen für 1901-1905.
    _Jahresb. ü. Altwiss._ cxxxiv (1906). 1-48.

    Kappeyne van de Coppello, J. [Comitien] Drei Abhandlungen zum
    römischen Staats- und Privatrecht, i: Betrachtungen über die
    Comitien. 2d ed. Berlin, 1891.

    Karlowa, O. Der römische Civilprocess zur Zeit der
    Legisactionen. Berlin, 1872.

    ⸺ Römische Rechtsgeschichte. 2 vols. Leipzig, 1885, 1901.

    Keil, J. Zur lex Cornelia de viginti quaestoribus. _Wiener
    Studien_, xxiv (1902). 548-51.

    Klebs, E. Die Stimmenzahl und die Abstimmungsordnung der
    reformierten servianischen Verfassung. _Zeitschr. d.
    Savignyst._ xii (1891). 181-244.

    Klebs, L. Aimilius Paullus, (in) Pauly-Wissowa, Real-Encycl. i.
    576-80. M. Aemilius Scaurus. ibid. 584-8. Appuleius. ibid. ii.
    261-9.

    Kleineidam, F. Beiträge zur Kentniss der lex Poetelia, (in)
    Festg. f. F. Dahn, ii. 1-30. Breslau, 1905.

    _Klio._ See _Beiträge zur alten Geschichte_.

    Kniep. Societas publicanorum. Jena, 1896.

    Köhm, J. Altlateinische Forschungen. Leipzig, 1905.

    Kornemann, E. Die cäsarische Kolonie Karthago und die
    Einführung römischer Gemeindeordnung in Africa. _Philol._ N. F.
    xiv (1901). 402-26.

    ⸺ Zur Geschichte der Gracchenzeit. Reprinted from _Beitr. z.
    alt. Gesch._ Beiheft i. 1903.

    ⸺ Die neue Livius-Epitome aus Oxyrhynchus. _Beitr. z. alt.
    Gesch._ Beiheft ii. 1904.

    ⸺ Polis und Urbs. _Klio_, v (1905). 72-92.

    ⸺ Collegium, (in) Pauly-Wissowa, Real-Encycl. iv. 380-480.
    Coloniae. ibid. 511-88. Concilium. ibid. 801 ff.

    Krüger, P., and Mommsen, Th. Anecdoton Livianum. _Hermes_, iv
    (1870). 371-6.

    Krüger-Brissaud, Sourc. d. Droit Rom. = Krüger, P. Histoire des
    sources du droit Romain. Trad. de l’Allemand par M. Brissaud.
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    Kubitschek, J. W. De Romanorum tribuum origine ac propogatione.
    Vienna, 1882.

    ⸺ Imperium Romanum tributim discriptum. Leipzig, 1889.

    ⸺ Aedilis, (in) Real-Encycl. i. 448-64. Aerarius. ibid.
    674-6. Aes equestre. ibid. 682-4. Ager. ibid. 780-93. As. ii.
    1499-1513. Census. ibid. iii. 1914-24.

    Kübler, B. Calata comitia, (in) Pauly-Wissowa, Real-Encycl.
    iii. 1330-4. Capite censi. ibid. 1521-3. Centuria. ibid.
    1952-62. Classis. ibid. 2630-2. Consul. ibid. iv. 1112-38.
    Equites Romani. ibid. vi. 272-312.

    Kübler, B., and Hülsen, C. Curia, (in) Pauly-Wissowa,
    Real-Encycl. iv. 1815-26.


    Labatut, E. Corruption électorale chez les Romains. Paris, 1876.

    Lambert, E. L’histoire traditionelle des XII Tables et les
    critères d’authenticité des traditions en usage dans l’école de
    Mommsen, (in) Mélanges Ch. Appleton, 503-626. Lyons and Paris,
    1903.

    ⸺ La fonction du droit civil comparé, 390-718. Paris, 1903.

    Lanciani, R. Ruins and Excavations of Ancient Rome. Boston,
    1897.

    ⸺ New Tales of Old Rome. Boston, 1901.

    Lange, L. Römische Altertümer. 3 vols. 2d and 3d eds. Berlin,
    1876, 1879.

    ⸺ Kleine Schriften. 2 vols. Göttingen, 1887.

    Lécrivain, C. Gens, (in) Daremberg et Saglio, Dict. ii.
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    Leinveber, A. Die Legion des Livius. _Philol._ N. F. xv (1902).
    32-41.

    Leist, B. W. Graeco-italische Rechtsgeschichte. Jena, 1884.

    ⸺ Alt-arisches Ius Gentium. Jena, 1889.

    ⸺ Alt-arisches Ius Civile. 2 vols. Jena, 1892, 1896.

    Lengle, J. Untersuchungen über die sullanische Verfassung.
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    Lenormant, F. As, (in) Daremberg et Saglio, Dict. i. 454-64.

    ⸺ Colonies Romains, ibid. i. 1303-21.

    Leonhard, R. Adoptio, (in) Pauly-Wissowa, Real-Encycl. i.
    398-400. Adrogatio. ibid. 419-21.

    Le Tellier, M. [Organ. cent.] L’organisation centuriale et les
    comices par centuries. Thesis. Paris, 1896.

    Liebenam, W. Zur Geschichte und Organisation des römischen
    Vereinswesens. Leipzig, 1890.

    ⸺ Comitia, (in) Pauly-Wissowa, Real-Encycl. iv. 679-715.
    Curiata lex. ibid. iv. 1826-30. Fabri, (in) Ruggiero, Diz. Ep.
    iii. 4-18.

    Lieboldt, K. Die Ansichten über die Entstehung und das Wesen
    der gentes patriciae in Rom aus der Zeit der Humanisten bis auf
    unsere Tage, i, ii. Meerane, 1890.

    Liers, H. [Kriegsw. d. Alt.] Das Kriegswesen der Alten mit
    besonderer Berücksichtigung der Strategie. Breslau, 1895.

    Livy, new epitome of. See Grenfell and Hunt; also Kornemann.

    Long, G. The Decline of the Roman Republic. 5 vols. London,
    1864-1874.


    Madvig, J. N. [Röm. Staat.] Die Verfassung und Verwaltung des
    römischen Staates. 2 vols. Leipzig, 1881, 1882.

    Marchi, A. de. Il culto privato di Roma antica. 2 vols. Milan,
    1896, 1903. Uncritical, but to some extent useful.

    Marquardt, J. Historiae equitum Romanorum. Berlin, 1840.

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    ⸺ Das Privatleben der Römer. 2d ed. Leipzig, 1886.

    Matzat, H. Römische Chronologie. 2 vols. Berlin, 1883, 1884.

    Maue, H. Der praefectus fabrum. Halle, 1887.

    Mélanges d’archéologie et d’histoire de l’école Française de
    Rome.

    Mercklein, D. L. Die Coöptation der Römer. Leipzig, 1848.

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    1877-1887.

    Meyer, E. Untersuchungen über Diodor’s römische Geschichte.
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    1893 (and Berlin), 1902.

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    der Gracchen, (in) Festschriften ... der vereinigten
    Friedrichs-Universität Halle-Wittenberg, 1894. Philos. Fak.
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    ⸺ Der Ursprung des Tribunats und die Gemeinde der vier Tribus.
    _Hermes_, xxx (1895). 1-24.

    ⸺ Die angebliche Centurienreform Sullas. _Hermes_, xxxiii
    (1898). 652-4.

    ⸺ Plebs, (in) Handwörterbuch der Staatswissenschaft, vi.
    98-106. 2d ed. Jena, 1901.

    Michel, N. H. Du droit de cité Romaine: études d’épigraphie
    juridique. Paris, 1885.

    Milani, L. A. Studi e materiali di archaeologia e numismatica.
    3 vols. Florence, 1899-1905.

    Mispoulet, J. B. Les institutions politiques des Romains. 2
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    ⸺ Études d’institutions Romaines. Paris, 1887.

    Mommsen, Th. [Röm. Tribus.] Die römischen Tribus in
    administrativer Beziehung. Altona, 1834.

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FOOTNOTES


[1] Cf. Mommsen, _Röm. Forsch._ i. 168 and n. 1. Schrader, _Reallex._ 920
f., accepts this explanation as most probable, and connecting it with
Skt. cakrá-, interprets it as referring to a wheel formation of the army.
But Vaniček, _Griech.-lat. etym. Wörterb._ 1085 f., connects populari
with spol-iu-m.

[2] Curtius, _Griech. Etym._ 260, English, 344; Corssen, _Ausspr._ i.
368, 422; Vaniček, _Etym. Wörterb. d. lat. Spr._ 90; _Griech.-lat. etym.
Wörterb._ 506; Walde, _Lat. etym. Wörterb._ 480 f.; cf. Schrader, ibid.;
Genz, _Patr. Rom._, 51 f.

[3] This interpretation would explain magister populi and populari.
Plebs, on the other hand, denoted the multitude as distinguished from the
leaders; hence it differed from populus, notwithstanding Herzog, _Röm.
Staatsverf._ i. 98, n. 2.

[4] Cf. Mommsen, _Röm. Staatsr._ iii. 3.

[5] Livy xxi. 34. 1.

[6] Cic. _Rep._ i. 25. 39; Livy i. 8. 1; Isid. _Etym._ ix. 6. 5.

[7] Cf. Madvig, _Röm. Staat._ i. 34 ff.; Schiller, _Röm. Alt._ 612 ff.

[8] “Arma sumere, sacris adesse, concilium inire”; Tac. _Germ._ 6. 6; 13.
1. On the Indo-European relation of the army to the folk, see Schrader,
_Reallex._ 349 f. For Rome, Mommsen, _Röm. Staatsr._ iii. 3 f.

[9] Cic. _Rep._ ii. 8. 14; Dion. Hal. ii. 7. 2; Plut. _Rom._ 14, 20;
Ovid, _Fast._ iii. 131; Dio Cass. Frag. 5. 8; Varro, _L. L._ v. 55;
Colum. v. 1. 9.

[10] As Romulus was the eponymous hero of the Ramnes (or of all the
Romans?) and Lucerus (Fest. ep. 119) of the Luceres.

[11] 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, therefore, with the auguraculum on the spot; Varro,
_L. L._ 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, _L. L._ 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. Eigennam._ 218.

[12] Possibly because the rites of the Titian sodales seemed to be Sabine
(cf. Tac. _Ann._ i. 54); but even if they were, this circumstance would
not make the Titian tribe Sabine.

[13] Varro, however, placed them on the Aventine. A Sabine settlement on
the Quirinal has not been proved; cf. Lécrivain, in Daremberg et Saglio,
_Dict._ ii. 1514.

[14] In Dion. Hal. ii. 47. 4; cf. 7. 2; Plut. _Rom._ 13.

[15] _L. L._ v. 46, 55; Serv. _in Aen._ v. 560.

[16] P. 2, n. 6, and n. 1 above.

[17] Serv. ibid.

[18] Cf. Hülsen, in Pauly-Wissowa, _Real-Encycl._ iii. 1273.

[19] Proposed by Niebuhr, _Röm. 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, _Röm. Gesch._ i. 480
ff., 497-514; Lange, _Röm. Alt._ i. 82 ff.; Peter, _Gesch. Roms._ i.
60; Madvig, _Röm. Staat._ i. 97 f.; Herzog, _Röm. Staatsverf._ i. 23
f. (with some reserve); Schiller, _Röm. Alt._ 621; Ihering, _Geist
des röm. Rechts_, i. 309, 313; Genz, _Patr. Rom_, 89 ff.; Bernhöft,
_Röm. Königsz._ 79; Puchta, _Curs. d. Inst._ i. 73; Soltau, _Röm.
Volksversamml._ 46 f.; Kubitschek, _Rom. trib. or._ 4; Mommsen, _Röm.
Staatsr._ iii. 96 f.; Willems, _Sén. Rom._ i. 7; Schrader, _Reallex._
801; Nissen, _Templum_, 145 f.; _Ital. Landesk._ ii. 496.

[20] Against the view that the three tribes were once independent
communities are Volquardsen, in _Rhein. Mus._ xxxiii. 542 ff.; Meyer,
_Gesch. d. Alt._ ii. 510; Lécrivain, in Daremberg et Saglio, _Dict._ ii.
1514 a; Holzapfel, in _Beitr. z. alt. Gesch._ i. 241, 249 ff.; Platner,
_Top. and Mon. of Anc. Rome_, 33. Ihne, _Hist. of Rome_, i. 114, thinks
they probably had reference only to the army. The double nature of many
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 at
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, _Röm. Gesch._ i. 320 f., English, i. 157; Bloch,
_Orig. d. sén._ 32 ff.

[21] Bormann, in _Eran. Vind._ 345-58, following a hint offered by Niese,
_Röm. 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. z. 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.

[22] 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., _Ausgewählte
Abhandlungen_, 216-88, who maintains that the institution was
artificial.) In like manner the three Roman tribes disappeared, leaving
but scant traces; p. 7.

[23] 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 primitive 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 Alba point to a division of this community into three
tribes; Niebuhr, _Röm. Gesch._ i. 386; Schwegler, _Röm. 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
Ramnennii in Ostia (_CIL._ xiv. 1542) and Ramnii in Capua; ibid. x. 3772;
Schulze, _Lat. Eigennam._ 218. The existence of a tribe of Luceres in
Ardea is vouched for by Lucerus, its eponymous hero, king of that city;
Fest. ep. 119; 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.

[24] 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 Aen._ i. 422. The
Umbrians had three hundred cities in the Po valley, destroyed by the
Etruscans; Pliny, _N. H._ iii. 14. 113. The Bruttians were organized in
a confederation of twelve cities; Livy xxv. 1. 2. The Iapygians were
divided into three branches (Polyb. iii. 88. 4), each of which comprised
twelve smaller groups; Bloch, _Orig. d. sén._ 9 f.; Holzapfel, in _Beitr.
z. alt. Gesch._ i. 245 ff., 252 f. The tripartite division also existed
in many pagi which continued to historical time; Kornemann, in _Klio_, v.
83.

[25] These facts are too well known to need illustration; cf. Nissen,
_Templum_, 144; Bloch, _Orig. d. sén._ 1 ff.

[26] Varro, _L. L._ v. 55. Tribus = tri-bu-s: bu- is related to φυ- “to
grow,” Skt. bhū-; tribus, corresponding to φυ-λή, would then signify
“three-branch;” Corssen, _Ausspr._ i. 163; Pott, _Etym. Forsch._ i. 111,
217; ii. 441; Vaniček, _Etym. Wörterb. d. lat. Spr._ 69; _Griech.-lat.
etym. Wörterb._ 636; Bloch, ibid. 9. Schlossman, in _Archiv f. lat.
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, _Reallex._ 801, is doubtful as to
the etymology; cf. Walde, _Lat. etym. Wörterb._ 636. The connection of
the word with tres is denied by Madvig, _Röm. Staat._ i. 96; Nissen,
_Ital. Landesk._ ii. 8, n. 5. Christ, in _Sitzb. d. bayer. Akad._ 1906.
204, prefers to connect it with Celt *trebo- (Old Irish treb), “house,”
Goth. thaúrp, “village.” Oscan trebo- also means “house.”

[27] The existence of four Ionic tribes in all Ionic cities cannot be
maintained; cf. Wilamowitz-Möllendorff, in _Sitzb. d. Berl. Akad._ 1906.
71.

[28] 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; Bücheler, _Umbrica_, see index, s. Tref, Trefiper; Kornemann, in
_Klio_, v. 87.

[29] Christ, in _Sitzb. d. bayer. Akad._ 1906. 207.

[30] Livy i. 55. 3 f.; _CIL._ ix. 1618, 5565; Nissen, _Ital. Landesk._
ii. 8 ff.; Kornemann, in _Klio_, v. 80.

[31] 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, _L. L._ 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. Pöhlmann,
_Anfänge Roms_, 40 ff.

[32] 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 incoluntur et propter parvitatem sui
maioribus civitatibus attribuuntur;” Fest. ep. 72; Nissen, ibid. 11.

[33] Thus the three tribes of Cyrene were made up each of a nationality
or group of nationalities (Hdt. iv. 161), and the ten tribes of Thurii
were named after the nationalities of which they were respectively
composed; Diod. xii. 11. 3.

[34] The Romans founded their colonies according to Etruscan rites,
and they believed their city to have been established in the same way;
Varro, _L. L._ 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.

[35] 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. of Archaeol._ xii
(1908). 172-83.

[36] Cf. Richter, ibid. 38; Meyer, E., in _Hermes_, xxx. 13.

[37] Cf. Nissen, _Ital. Landesk._ ii. 504.

[38] Cf. Varro, _L. L._ v. 55; Verrius Flaccus, in Gell. xviii. 7. 5. The
idea of Isidorus, _Etym._ ix. 6. 7, is of course absurd.

[39] This subject will be considered in connection with the Servian
tribes; p. 48 f.

[40] Dion. Hal. iv. 14. 2.

[41] P. 74.

[42] Like the Attic phylobasileis they continued through historical time
to perform sacerdotal functions; Dion. Hal. ii. 64. 3; _Fast. Praen. Mar.
19_, in _CIL._ i². p. 234: “(Sali) faciunt in comitio saltu (adstantibus
po)ntificibus et trib. celer;” Holzapfel, in _Beitr. z. alt. Gesch._ i.
242.

[43] Verg. _Aen._ v. 553 ff.; Serv. _in Aen._ v. 560; Holzapfel, ibid.
243.

[44] P. 2, n. 6.

[45] Fest. 285. 25; cf. Serv. _in Aen._ x. 202.

[46] 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. Holzapfel, _Beitr. z. alt. Gesch._
i. 247; Roscher, _Lex. d. griech. u. röm. Myth._ II. i. 596 f.). A
connection between Cūris and cūria is not clear; Deecke, _Falisker_, 86.

[47] Aristotle, _Politics_, 1329, b 8, considers Italus, king of the
Oenotrians, to have been author of the mess-associations (συσσίτια),
adding that the institution was derived from the country of the Opici and
the Chaonians. With the Opici he includes 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 ἑταιρεία, 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.

[48] Dion. Hal. ii. 7. 2; Dio Cass. Frag. 5. 8; Plut. _Rom._ 20; Fest.
174. 8; ep. 49; (Aurel. Vict.) _Vir. Ill._ ii. 12; Serv. _in Aen._ viii.
638; Pomponius, in _Dig._ i. 2. 2. 2.

Soltau, _Altröm. 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. Notwithstanding Hoffmann, _Patr. u.
pleb. Cur._ 44 ff., the opinion of these late writers doubtless arose
from an identification of the curiae with the tribes; cf. Kübler, in
Pauly-Wissowa, _Real-Encycl._ iv. 1818.

[49] P. 11 f.

[50] The word is derived from *co-viria, “a dwelling together,” “an
assembly,” by Pott, _Etym. Forsch._ ii. 373 f. (cf. Vaniček, _Etym.
Wörterb. d. lat. Spr._ 160; Walde, _Lat. etym. Wörterb._ 161), who is
followed by Schwegler, _Röm. Gesch._ i. 496, n. 8, 610, n. 4; Herzog,
_Röm. Staatsverf._ i. 96. Mommsen, _Röm. 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 κῦρος, κῦριος, as
did Lange in 1853 (_Kleine Schriften_, i. 147). Afterward—_Röm. 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 ultimately original. Corssen, who accepts this meaning, derives
cu- from sku-, “to cover,” “to protect” (_Ausspr._ i. 353 f.; Vaniček,
_Griech.-lat. etym. Wörterb._ 1116), cf. Old High Germ. hū-t, hū-s,
Eng. “house.” Although Mommsen, _Röm. Staatsr._ iii. 90, n. 2, protests
against this explanation, it is accepted by Meyer, _Gesch. d. Alt._ ii.
511, Soltau, _Altröm. Volksversamml._ 52, and others. Far less probable
is a connection 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.

[51] Tac. _Ann._ xii. 24.

[52] Fest. 174. 6; Jordan, _Top. d. Stadt Rom_, I. i. 165 f.; iii. 43
f.; Gilbert, _Gesch. u. Top. d. Stadt Rom_, i. 102 f.; 195 ff.; Richter,
_Top. d. Stadt Rom_, 33, 340; Lanciani, _Ruins and Excavations of Ancient
Rome_, map opp. 58; Mommsen, _Röm. Staatsr._ iii. 99.

[53] P. 8, n. 5; Dion. Hal. ii. 50. 3; Fest. 254. 25; ep. 64; cf.
Roscher, _Lex._ II. i. 596.

[54] Worshipped in the Fordicidia; Ovid, _Fast._ iv. 634; Lyd. _De Mens._
iv. 49; Wissowa, _Rel. u. Kult. d. Röm._ 159.

[55] 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.

[56] Dion. Hal. ii. 23. 1; Fest. 245. 28.

[57] Varro, _L. L._ v. 83; vi. 46; Dion. Hal. 64. 1; 65. 4; Fest. ep. 49,
62; Lyd. _De Mag._ i. 9.

[58] Dion. Hal. ii. 22. 1.

[59] _CIL._ vi. 1892; xiv. 296; Gell. xv. 27. 2; cf. Cic. _Leg. Agr._ ii.
12. 31.

[60] Fest. ep. 64: “Curiales flamines curiarum sacerdotes.” For the
flamen of the Curia Iovis of Simitthus, see _CIL._ viii. 14683; cf. 2596
and 11008. 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, _Röm. 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, _Patr. Rom._, 47)
or a flamen (Holzapfel, in _Beitr. z. alt. Gesch._ i. 242).

[61] Cf. Wissowa, _Rel. u. Kult. d. Röm._ 338, n. 3, 413, n. 2.

[62] 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.

[63] P. 157. The comitium was a place of assembly adjoining the Forum.

[64] II. 7. 2 f.; 23. 3.

[65] Soltau, _Altröm. Volksversamml._ 52, 65, following J. J. Müller, in
_Philol._ xxxiv (1874), 96-136, refuses to credit a military character
to the curiae because it is mentioned 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
(_Il._ ii. 362 f.).

[66] 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.”

[67] _Il._ ii. 362 f.

[68] Tac. _Germ._ 7. 3.

[69] Schrader, _Reallex._ 349 f.

[70] 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.

[71] P. 7.

[72] II. 7. 4. The curiales must have been neighbors in order to use a
common drying oven; n. 8 below.

[73] 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 possibly suggested to the ancients the derivation of
the curial names from those of the captive Sabine women; cf. p. 8, n. 6.

[74] 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. Röm._ 142.

[75] Διῄρηνται δὲ καὶ εἰς δεκάδας αἰ φράτραι, πρὸς αὑτοῦ, καὶ ἡγεμὼν
ἐκὰστην ἐκόσμει δεκάδα, δεκουρίων κατὰ τὴν ἐπιχώριον, γλῶτταν
προσαγομευόμενος.

[76] Polyb. vi. 25. 1; cf. 20. 9.

[77] _L. L._ v. 91.

[78] There is no need of assuming, with Bloch, _Origines du sénat
Romain_, 102-5, that the decuriae mentioned by Dionysius are “purely
imaginary.”

[79] _Röm. Gesch._ i. 334 f.; Eng. 163; cf. also Schwegler, _Röm. Gesch._
i. 612 f. The antiquated view is still held by Herzog, _Röm. Staatsverf._
i. 96, and by Lécrivain, in Daremberg et Saglio, _Dict._ 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.

[80] “Cum ex generibus hominum suffragium feratur, curiata comitia esse;
cum ex censu et aetate, centuriata; cum ex regionibus et locis, tributa.”

[81] Mommsen, too, supposes that genera here means gentes but is used so
as to include also the plebeian stirpes; nevertheless he knows that the
voting in the curiate assembly was by heads rather than by gentes; _Röm.
Staatsr._ iii. 9, n. 2; 90, n. 5.

[82] 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.

[83] It is in the main a reproduction of my article on the subject in
_Pol. Sci. Quart._ xxi (1906). 498-526.

[84] P. 25 ff.

[85] _Rep._ ii. 8. 14; 12. 23: “Senatus, qui constabat ex optimatibus,
quibus ipse rex tantum tribuisset, ut eos patres vellet nominari
patriciosque eorum liberos.”

[86] 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, _Sén. Rom._ i. 7) could make “omnibus patriciis”
equivalent to “omnibus antiquissimis civibus.”

[87] I. 8. 7.

[88] Ibid.: “Consilium deinde viribus parat: centum creat senatores.”

[89] Livy iv. 4. 7: “Nobilitatem istam vestram quam plerique oriundi ex
Albanis et Sabinis non genere nec sanguine sed per coöptationem in patres
habetis, aut ab regibus lecti aut post reges exactos iussu populi.”

[90] Livy i. 34. 6: “In novo populo, ubi omnis repentina atque ex virtute
nobilitas sit.”

[91] II. 8. 1-3. In 12. 1, he shifts his point of view: Romulus chose the
hundred original senators from the patricians.

[92] _Rom._ 13; cf. _Q. R._ 58.

[93] Cf. further Ovid, _Fast._ iii. 127; Vell. i. 8. 6; Fest. 246. 23;
339. 11.

[94] 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 distinctly 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, _Röm. Staat._ i. 75.

[95] _Rep._, ii. 8. 14; cf. (Aurel. Vict.) _Vir. Ill._ ii. 11.

[96] _Cat._ 6. 6; cf. Isid. _Etym._ ix. 6. 10: “Nam sicut patres suos,
ita illi rem publicam habebant” (or “alebant”).

[97] I. 8. 7.

[98] 339. 11.

[99] 247.

[100] ii. 8. 1.

[101] Cf. Mommsen, _Röm. Forsch._ i. 227.

[102] From the root pa, to protect, preserve, conservare; Pott,
_Wurzel-Wörterb. d. Indog. Spr._ (2d ed.), 221; Corssen, _Ausspr._ i.
424; Schrader, _Sprachvergl. u. Urgesch._ 538; Lécrivain, in Daremberg et
Saglio, _Dict._ ii. 1507.

[103] _Dig._ 1. 16. 195. 2: “Pater familias appellatur qui in domo
dominium habet.” In like manner patronus is protector of clients, pater
patriae protector of his country; Pott, ibid. 227.

[104] Ulpian, in _Dig._, ibid.: “Pater autem familias recte hoc nomine
appellatur, quamvis filium non habeat; non enim solam personam eius, sed
et ius demonstramus: denique et pupillum patrem familias appellamus.”

[105] Livy i. 32. 10 (from a fetial formula).

[106] Rubino, _Röm. Verfassung und Geschichte_, 186; Mommsen, _Röm.
Forsch._ i. 228, n. 16.

[107] 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, n. 1.

[108] 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 Duodecim Tabularum_ (_Dig._ 1. 16. 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 prohibition
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 expression “a patribus transire ad plebem” (Vell. ii.
45. 1) patres is certainly equivalent to patricii.

[109] 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.

[110] In his work on the Comitia, quoted by Fest. 241. 21: “Patricios eos
appellari solitos qui nunc ingenui vocentur.”

[111] 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...?”

[112] VI. 40. 6. The speaker contrasts ingenui with patricii.

[113] 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 indigenous, native; cf.
Forcellini, _Totius Latinitatis 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.”

[114] P. 30.

[115] The word is probably derived from the same root as populus;
Corssen, _Ausspr._ i. 368; cf. p. 1, n. 3 above.

[116] _Rep._ ii. 9. 16.

[117] ii. 9. 2.

[118] Notably among the Sabines, Livy ii. 16. 4; Dion. Hal. ii. 46. 3.

[119] Cicero, _Rep._ ii. 9. 16; Dion. Hal. ii. 9. 2.

[120] Cf. the citations in Mommsen, _Röm. Staatsr._ iii. 71, n. 1.
Dionysius, ii. 63. 3, distinguished the two classes as early as the
interregnum which followed Romulus.

[121] Dion. Hal. v. 40. 3; vi. 47. 1; vii. 19. 2; x. 43. As late as 134
Scipio called his clients to follow him to the Numantine war; Appian,
_Iber._ 84.

[122] Livy iii. 58. 1.

[123] Dion. Hal. ii. 10. 3.

[124] Livy ii. 56. 3; 64. 2; Dion. Hal. ii. 10. 3; iv. 23. 6; ix. 41. 5.

[125] 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 as Marius asserted to any office) freed
a man and his family from clientage. Evidently this law was passed in
or after 367 B.C. Mucius, a client of Ti. Gracchus, was elected to the
plebeian tribunate; Plut. _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.

[126] 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, _Röm. Staatsr._ iii. 4, n. 2.

[127] Cicero, _Rep._ ii. 12. 23; Livy i. 8. 7; Zon. vii. 9; Isid. _Etym._
ix. 6. 6.

[128] 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. 1; xliii. 8. 9. The Greeks always regard
populus as the equivalent of δῆμος; cf. Plut. _Rom._ 13. Not only does
the tribune in addressing the plebs call them populus Romanus (Sall.
_Iug._ 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.

[129] _Röm. Forsch._ i. 172.

[130] Cic. _Fam._ x. 35; _Verr._ v. 14. 36; _Mur._ 1. 1; Livy xxix.
27. 2: Tac. _Ann._ 1. 8; Macrob. _Sat._ 1. 17. 28; cf. Mommsen, _Röm.
Forsch._ i. 169, n. 4.

[131] E.g. senatui populo plebique Romanae; Cicero, _Fam._ x. 35
(address).

[132] Mommsen, _Röm. Staatsr._ iii. 6, n. 4; Soltau, _Altröm.
Volksversamml._ 84.

[133] 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. Ill._ 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, πλῆθος, contained in the curiae were mainly plebeian.

[134] Cic. _Rep._ ii. 7. 13; 8. 14; 18. 33; Livy i. 13. 4; 13. 6; 28. 7;
30. 1; 33. 1-5; Dion. Hal. ii. 46. 2 f.; 47. 1; 50. 4 f.; 55. 6; iii. 29.
7; 30. 3; 31. 3; 37. 4; 48. 2; iv. 22. 3.

[135] Cf. Dion. Hal. ii. 8. 4.

[136] 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.

[137] 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 comprehend 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.”

[138] 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.

[139] The late regal period may have left a few documents which, if used
by the annalists, might have thrown light on the condition of that time.
It has not yet been determined whether the inscription recently found
in the Roman Forum belongs to the late regal or to the early republican
period.

[140] Mommsen, _Röm. Staatsr._ iii. 69, grants to the ancients far more
knowledge of their own history, but claims a “wider horizon.”

[141] 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,
_Röm. Gesch._ i. 621 f., and 626 f., assumes that Dionysius 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.

[142] Cf. Pais, _Storia di Roma_, I. 1. 82. The usual opinion (cf.
Bernhöft, _Röm. Königsz._ 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.

[143] _Röm. Gesch._ i. 339, Eng. 165.

[144] _Lectures on Roman History_, i. 81, 100 f.

[145] _Röm. Gesch._ i. 332, Eng. 158.

[146] 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.

[147] Cf. the edition of Sandys, 252; Rose, _Aristotelis Frag._ 385.

[148] _Röm. Gesch._ i. 326, Eng. 160. Genz, _Patricisches Rom_, 6, has
the same idea.

[149] _Il._ ii. 362 f.; ix. 63 f.

[150] _CIA._ i. 61; cf. Dem. xliii. 57.

[151] This is illustrated, for instance, by a law quoted by Philochorus,
in Müller, _Frag. Hist. Graec._ i. 399. 94: Τοὺς δὲ φράτορας ἐπάναγκες
δέχεσθαι καὶ τοὺς ὀργεῶνας καὶ τοὺς ὁμογάλακτας, οὺς γεννῆτας καλοῦμεν
(“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 Staatsaltertümer_, 324 f.

[152] P. 11.

[153] _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 fortasse satis est. Nihil enim video Scaevolam pontificem
ad hanc definitionem addidisse;” 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,
_Röm. 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 defined it, or some ancient writer would at least
have mentioned it. The attempt of Kübler, _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, according 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. Kübler’s
other remarks on the gens, 539-43, are equally unconvincing.

[154] 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.

[155] Val. Max. ix. 2. 1.

[156] Cic. _Har. Resp._ 15. 32, mentions sacrificia gentilicia of the
Calpurnia.

[157] Suet. _Ner._ 1.

[158] Cic. _Dom._ 13. 35.

[159] Fest. ep. 23.

[160] Varro, _R. R._ i. 2. 10.

[161] Unless Sp. Cassius, consul 502, 493, 486 B.C. and author of the
first agrarian rogation, is a myth; cf. Drumann-Gröbe, _Gesch. Roms_, ii.
94.

[162] Cf. Cic. _Orat._ i. 39. 176. The patrician and plebeian branches
are sometimes spoken of as distinct gentes; Suet. _Tib._ 1.

[163] Mommsen, _Röm. Forsch._ i. 113 f.; Drumann-Gröbe, ibid. 359.

[164] Cic. _Phil._ i. 13. 32; Gell. ix. 2. 11; Fest. ep. 125.

[165] Mommsen, ibid. 116.

[166] L. Poplilius Volscus, patrician; Livy v. 12. 10. Q. Publilius
Philo, plebeian; Livy viii. 15. 9.

[167] 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.

[168] Mommsen, ibid. 117 ff.

[169] V. 14. 4: “Comitiis auspicato quae fierent indignum dis visum
honores volgari discriminaque gentium confundi.”

[170] _Dom._ 13. 35: “Ita perturbatis sacris, contaminatis gentibus, et
quam deseruisti et quam poluisti.”

[171] Sall. _Iug._ 95. 3; Livy iii. 27. 1; 33. 9; vi. 11. 2; Gell. x. 20.
5; cf. ix. 2. 11.

[172] _L. L._ viii. 4: “Ut in hominibus quaedam sunt agnationes ac
gentilitates, sic in verbis.”

[173] In _Lib. Praen._ 3.

[174] It will suffice to quote Gaius iii. 17: “Si nullus agnatus sit,
eadem lex XII Tabularum gentiles ad hereditatem vocat”; cf. Cic. _Verr._
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).

[175] Cf. p. 20; see also Auct. Inc. _De Diff._ 527 (Keil): “Gens seriem
maiorum explicat.”

[176] E.g. “Family will take a person everywhere”; C. D. Warner, quoted
by the _Standard Dictionary_, s. v.

[177] Mommsen’s theory of the gens—a development from Niebuhr’s—is
criticized in _Pol. Sci. Quart._ xxii (1907). 668 f. The distinction
between patrician gentes and plebeian stirpes, on which he especially
relies, is there shown to be groundless.

[178] Gell. xv. 27. 2.

[179] II. 8. 4.

[180] _Sén. Rom._ ii. 34 f.

[181] _Röm. Forsch._ i. 233 f.; 247 f.; cf. Genz, _Patr. Rom_, 70. On the
patrum auctoritas, see p. 235 below.

[182] E.g. _Röm. Gesch._ ii. 359; iii. 168; Eng. ii. 147; iii. 73: “the
common council of the patres—the curies.”

[183] _Cic._ Frag. A. vii. 48; Livy ii. 56, especially § 3; Dion. Hal.
vi. 89. 1; ix. 41.

[184] Livy xxvii. 8. 3.

[185] Mommsen, _Röm. Forsch._ i. 148.

[186] _Cic. Leg. Agr._ ii. 12. 31.

[187] _Cic. Dom._ 14. 38; Livy vi. 41. 10.

[188] P. 185 below; cf. Mommsen, _Röm. Forsch._ i. 147 f.

[189] In the face of all evidence to the contrary two or three scholars
persist in maintaining essentially the opinion of Niebuhr that through
the republic the curiae continued patrician. Herzog, _Röm. Staatsverf._
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,
Ῥωμαών Πολιτεία ἡ βασιλευομένη κα ἡ ἐλευθέρα (Athens, 1903), also
excludes the commons from the curiate assembly throughout its history.
The fancies of Hoffmann, _Patr. und pleb. Curien_, need not detain us.

[190] _Röm. Gesch._ i. 623 f.

[191] Cf. p. 152, 172.

[192] Cf. p. 170, 172.

[193] P. 173 ff., 345.

[194] P. 75, 96, 209.

[195] _Röm. Gesch._ i. 625, n. 3.

[196] _Röm. Forsch._ i. 140 f.

[197] _Röm. Forsch._ i. 269; _Röm. Staatsr._ iii. 92. Clason, _Krit.
Erört. über den röm. Staat_, 12, supposes they were admitted by the
Ogulnian law, in 300. Genz, _Patr. 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.

[198] _Röm. Staatsr._ iii. 13; _Abriss_, 5.

[199] _Röm. Staatsr._ iii. 54 f.

[200] Ibid. iii. 91.

[201] Ibid. iii. 63.

[202] Ibid. iii. 67 f.

[203] Ibid. i. 91, n. 1; cf. Lange, _Röm. 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.

[204] _Röm. Staatsr._ iii. 77.

[205] Cf. Töpffer, _Attische Genealogie_, 177.

[206] _Altröm. Volksversamml._ 93.

[207] _Röm. Staatsr._ iii. 109.

[208] P. 69.

[209] _Röm. Forsch._ i. 106 f. and n. 80.

[210] _Röm. Staatsr._ iii. 13.

[211] _Rep._ ii. 20. 35: “Duplicavit illum pristinum patrum numerum et
antiquos patres maiorum gentium appellavit, quos priores sententiam
rogabat, a se adscitos minorum.” The connection shows that Cicero is
speaking of two classes of senators distinguished by the rank of the
gentes from which they respectively came.

[212] P. 28 f.

[213] P. 11 f.

[214] _Röm. Staatsr._ iii. 14.

[215] P. 17 f. and notes.

[216] P. 20 f.

[217] For the sources, see Schwegler, _Röm. Gesch._ i. 459 f.; Stengel,
in Pauly-Wissowa, _Real-Encycl._ ii. 1885.

[218] _Andeutungen über den urspr. Religionsunterschied der röm. Patr.
und Pleb._ 1 f.

[219] 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, n. 1.

[220] Pais, ibid. 217 ff. Dionysius, i. 4. 2 f., expressly states that
this story is a Greek falsification.

[221] See the examples collected by Pais, ibid.

[222] Cf. Livy i. 8. 5.

[223] Cf. ibid. ii. 1. 4.

[224] 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 significant 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, _Sén. Rom._ 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. _Aem._ 1; Fest. ep. 23) or Sabine (Plut. _Num._ 8) or Oscan
(Fest. 130. 1).

[225] Cf. p. 31 above. For details, see _Pol. Sci. Quart._ xxii. 679 ff.

[226] 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.

[227] Since the publication of the _Staatsrecht_, writers have made
slight modifications or extensions of the conventional theory. Greenidge,
in Poste, _Gaii Institutiones_, 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
reasoning 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. Zöller, _Latium und Rom_, 23 ff., 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
notions 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,
_Altröm. Volksversamml._ (1880); Bernhöft, _Röm. Königsz._ (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. z. alt. Gesch._ i (1902). 254.

[228] Meyer, _Gesch. d. Alt._ ii. 80; Featherman, _Social History of
the Races of Mankind_, ii. 408; Hellwald, _Culturgeschichte_, i. 175;
Barth, _Philosophie 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 condition is
sufficiently known.

[229] Giddings, _Principles of Sociology_, 124; Tarde, _Laws of
Imitation_, 233 f.; Fairbanks, _Introduction to Sociology_, 158; Grave,
_L’individu et la société_, 23; Funck-Brentano, _Civilisation et ses
lois_, 71 f.; Caspari, _Urgeschichte der Menschheit_, i. 125 f.;
Hellwald, ibid. i. 175, 177; Ross, _Social Control_, 80.

[230] Giddings, ibid. 262; Ammon, _Gesellschaftsordnung_, 133 f.;
Cherbuliez, _Simples notions de l’ordre social à l’usage 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, _Système sociale_, i. 329;
Mismer, _Principes 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.,
_Anfänge des Staats- und Rechtslebens_, 150 f.

[231] Giddings, ibid. 262; cf. Arnd, _Die materiellen Grundlagen ...
der europäischen Kultur_, 444 f.; Frohschammer, _Organisation und
Kultur der mensch. Gesellschaft_, 84 f.; Bastian, _Rechtsverhältnisse
bei verschiedenen Völkern der Erde_, 20 f.; Spencer, _Principles of
Sociology_, ii. 333, 335.

[232] 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.

[233] Cf. Rubino, _Röm. Verf._ 183; Spencer, ibid. ii. 334 f.; Seebohm,
_Tribal System in Wales_, 72.

[234] Aristotle, _Politics_, 1294, a 21; Giddings, _Principles of
Sociology_, 293 f.; Jenks, _History of Politics_, 30 f.; Grave,
_L’individu et la société_, 25; Combes de Lestrade, _Éléments de
sociologie_, 185; Schurtz, _Urgeschichte der Kultur_, 148, 385;
Featherman, _Social History of the Races of Mankind_, see index, s.
Classes; Hittell, _Mankind 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.

[235] Grave, ibid. 30 f.; Combes de Lestrade, ibid. 184 f.;
Funck-Brentano, _Civilisation et ses lois_, 68 f.; Spencer, ibid. ii.
348 f.; Schurtz, ibid. 150 f.; Featherman, ibid. ii. 128, 197 f., 311;
Letourneau, _Sociology_, 480 f.; Bastian, _Rechtsverhältnisse_, 8 f.

[236] Cf. Schurtz, ibid. 148; Farrand, ibid. 114, 129, 141. For the
Malays, see Skeat and Blagden, ibid. 494 ff.

[237] Maine, ibid. 132.

[238] Maine, ibid.; Ginnell, _Brehon Laws_, 63 f., 93 f.

[239] Seebohm, _Tribal System in Wales_, 134 f.

[240] As in Wales; Seebohm, ibid. 139; cf. the Inca grandees, who
all claimed descent from the founder of the monarchy; Letourneau,
_Sociology_, 479.

[241] Tac. _Germ._ 13. 3: “Insignis nobilitas aut magna patrum merita
principis dignationem 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.

[242] 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. Bernhöft, _Röm. Königsz._ 123.

[243] 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 captivi 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.

[244] Maine, _Early Hist. of Inst._ 135 f.; Giddings, _Principles of
Sociology_, 294 f.

[245] Cf. Giddings, ibid.

[246] Maine, ibid. 136.

[247] Laws of Athelstan.

[248] 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.

[249] Brunner, _Deutsche Rechtsgeschichte_, i. 235 f., 252; Maine, ibid.
138; Ammon, _Gesellschaftsordnung_, 135; Schurtz, _Urgeschichte der
Kultur_, 148 f.; Bluntschli, _Theory of the State_, 131, 155; Tarde,
_Laws of Imitation_, 237.

[250] Giddings, _Principles of Sociology_, 315; cf. Combes de Lestrade,
_Éléments de sociologie_, 185; Rossbach, _Gesch. der Gesellsch._ i. 14. A
nobility formed purely by conquest, if such indeed exists, must be rare,
and can hardly be lasting; Schurtz, _Urgesch. der Kul._ 149.

[251] Giddings, ibid. 315; cf. Grave, _L’individu et la société_, 32.

[252] Strabo viii. 4. 4, p. 364; Aristotle, _Politics_, 1270, a 34.

[253] Schurtz, _Urgesch. der Kult._ 165.

[254] Ginnell, _Brehon Laws_, 145.

[255] Bluntschli, _Theory of the State_, 142; Freeman, _Norman Conquest_,
iv. 11. 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 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_, i. 240.

[256] 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 Ostrogoths 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.

[257] Featherman, _Social History of the Races of Mankind_, ii. 354;
Tarde, _Laws of Imitation_, 238, n. 1, 239; Hellwald, _Kulturgesch._ i.
175 f.; Schurtz, _Urgesch. der Kult._ 149; cf. Demolins, _Comment la
route crée le type social_.

[258] P. 16.

[259] P. 37, n. 4.

[260] P. 31; _Pol. Sci. Quart._ xxii (1907). 679 ff.

[261] 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 intermarrying 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 Untergangs der antiken 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.

[262] Gaius i. 120 f.

[263] Mommsen’s theory of gentile ownership, adopted by Kubitschek, in
Pauly-Wissowa, _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;
_Röm Staatsr._ iii. 25. But if, as I have elsewhere pointed out (_Pol.
Sci. 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
primitive gentile ownership falls to the ground.

[264] 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 historical 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.

[265] Christ, W., in _Sitzb. d. Berl. Akad. d. Wiss._ 1906. 207.

[266] In the Twelve Tables heredium has the meaning of hortus, “garden;”
Pliny, _N. H._ xix. 4. 50. It was a praedium parvulum consisting of two
iugera; Fest. ep. 99.

[267] 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, _Röm. Staatsr._ iii. 24, n. 1. 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, _N. 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. Landesk._ ii. 507.

[268] Cf. Mommsen, _Röm. Staatsr._ iii. 23 f.

[269] Dion. Hal. iv. 13. 1; Varro, _De vit. pop. rom._ i, in Non. Marc.
43; Livy i. 46. 1.

[270] Dion. Hal. v. 57. 3; Plut. _Popl._ 21. Moreover the division into
the five classes was based on unequal holdings.

[271] Cf. Meyer, _Gesch. d. Alt._ ii. 518, n.

[272] _Röm. Staatsr._ iii. 168.

[273] Dion. Hal. iv. 14. 2 might refer to a condition in which land was
still inalienable and the right of changing residence restricted.

[274] 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 μοῖραι,
“regions,” and phylae with perfect consistency; cf. Kubitschek, _Rom.
trib. or._ 7, n. 34.

[275] _Röm. Gesch._ i. 434-7; English, 205 f.

[276] _Verf. d. Serv._ 95 f.

[277] Cf. Huschke, _Verf. d. Serv._ 72 ff., who supposed that the
twenty-six rural regiones were in most respects like tribes, but
contained only plebeians, who were politically inferior to the city
people; see also Schwegler, _Röm. Gesch._ i. 736 f.

[278] _Röm. Tribus_, followed by Grotefend, _Imp. rom. trib. descr._

[279] 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. Ill._ 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.

[280] Grotefend, ibid. 27.

[281] Inferred from an obscure passage in Fest. 213. 13, and from
inscriptions cited by Mommsen, _Röm. Trib._ 215; Grotefend, ibid. 67.

[282] Lange, _Röm. Alt._ i. 504; Herzog, _Röm. Staatsverf._ i. 39 and n.
2; Pelham, _Rom. Hist._ 39; Soltau, _Altröm. Volksversamml._ 457 ff.;
Greenidge, _Rom. Pub. Life_, 67.

[283] _Röm. Staatsr._ iii. 163 ff. Mommsen calls attention to epigraphic
evidence, cited more fully by Kubitschek, _Imp. rom. trib. discr._ 26
f., which assigns Ostia unmistakably to the Voturia tribus. He notices
further that the same sort of evidence which places Ostia in the Palatina
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.
_Röm. Staatsr._ iii. 442 f., with notes.

[284] _Stor. di Rom._ I. i. 320, n. 1, relying on Livy ix. 46. 14.

[285] Fest. 246. 30: “‘Pro censu classis iuniorum’ Ser. Tullius cum
dixerit in descriptione centuriarum;” cf. 249. 1; Livy 1. 60. 4; iv. 4.
2. Cicero, _Rep._ ii. 22. 39, writes discriptio, which Lange, _Röm. Alt._
i. 464, following Bücheler, in _Rhein. Mus._ xiii (1858). 598, accepts as
the correct form.

[286] P. 67.

[287] Fabius Pictor, in Livy 1. 44. 2. Altogether unnecessary therefore
is Soltau’s supposition (_Altröm. Volksversamml._ 458, n. 2), in itself
improbable, that Fabius, who wrote his annals in Greek, applied the word
φυλαί incorrectly to the rural districts. However that may be, Cato, as
good an authority, spoke of these same districts as tribes. If the number
thirty was suggested to Fabius by the curiate organization (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
republic, see p. 83.

[288] P. 57.

[289] Ibid.; cf. Pais, _Leg. of Rom. Hist._ 140.

[290] 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.

[291] 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 (_Verf. d. Serv._
72 f., 85 f.), Mommsen (_Röm. Staatsr._ iii. 168 f.), and Meyer (in
_Hermes_, xxx. 11) attach to it.

[292] Cf. Livy i. 43. 13; Fest. ep. 368.

[293] IV. 14.

[294] Dion. Hal. iv. 15.

[295] 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.

[296] Livy vi. 5. 8.

[297] P. 56.

[298] _Röm. Staatsr._ iii. 162 ff.

[299] _Gesch. d. Alt._ v. 135, 142; _Hermes_, xxx. 11; accepted by
Neumann, _Grundherrsch. d. röm. Rep._ 14 f.; Kornemann, in _Klio_, v. 90.

[300] _Röm. Staatsr._ iii. 168.

[301] P. 50

[302] _Röm. Staatsr._ iii. 164 f.

[303] Ibid. 163 and n. 3, in opposition to his former view and that of
Grotefend; cf. p. 52.

[304] 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 (_Gesch. 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. 11. 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. 1; _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.

[305] _Hermes_, xxx. 12; followed by Neumann, _Grundherrsch. d. röm.
Rep._ 13 f.; Kornemann, in _Klio_, v. 90 f.

[306] P. 6.

[307] Among the scholars who insist that originally country as well
as city was divided into tribes are Müller, 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 impossible to
penetrate earlier conditions. Niese, _Röm. Gesch._ (1906). 38 and n. 3,
more positively assigns the creation of twenty-one tribes to that date.

[308] Livy ii. 16. 5; cf. Dion. Hal. v. 40. 5.

[309] In Pauly-Wissowa, _Real-Encycl._ iii. 2650.

[310] Some place the immigration in the time of Titus Tatius; Verg.
_Aen._ vii. 706 ff.; Suet. _Tib._ 1; Appian, _Reg._ 12; Mommsen, _Röm.
Forsch._ i. 293; _Röm. Staatsr._ iii. 26, n. 1. That the earlier
tradition assigned the event to the date mentioned in the text is
asserted by Münzer, in Pauly-Wissowa, ibid. iii. 2663.

[311] 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: Μιᾶς γὰρ καὶ εἴκοσι
τότε φυλῶν οὐσῶν, οἶς ἡ ψῆφος ἀνεδόθη, τὰς ἀπολυούσας φυλὰς ἔσχεν ὁ
Μάρκιος ἐννέα· ὤστ’ εἰ δύο προσῆλθον αὐτῷ φυλαί, διὰ τὴν ἰσοψηφίαν
ἀπελέλυτ’ ἄν, ὥσπερ ὁ νόμος ἠξίου (“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. Müller,
J. J., in _Philol._ xxxiv (1876). 110 f. Meyer’s explanation (_Hermes_,
xxx. 10, n. 2), which makes διὰ τὴν ἰσοψηφλίαν signify “owing to the
equal value of the votes,” is improbable and unnecessary.

[312] For the form of the word, see Mommsen, _Röm. 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.

[313] Livy vi, 5. 8.

[314] Ibid. viii, 15. 12.

[315] Ibid. 17. 11.

[316] Ibid. ix, 20. 6.

[317] Ibid. x, 9. 14.

[318] Ibid. ep. xix.

[319] _B.C._ i. 49. 214: Ῥωμαῖοι μὲν δὴ τούσδε τοὺς νεοπολίτας οὐκ ἐς τὰς
πέντε καὶ τριάκοντα φυλὰς, αἳ τότε ἦσαν αὐτοῖς, κατέλεξαν, ἵνα μὴ τῶν
ἀρχαίων πλέονες ὄντες ἐν ταῖς χειροτονίαις ἐπικρατοῖεν, ἀλλὰ δεκατεύοντες
ἀπέφηναν ἑτέρας, ἐν αἷς ἐχειροτόνουν ἔσχατοι. For δεκατεύοντες scholars
have attempted to substitute δέκα, δέκα πέντε, δέκα ἐνεδρεύοντες
(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.

[320] III. 17 (Peter, _Reliquiae_, i. 280): “L. Calpurnius Piso ex senati
consulto duas novas tribus.”

[321] II. 20. 2.

[322] Kubitschek, _Imp. rom. trib. discr._ 2-6, tries to prove that the
lex Iulia, 90, provided 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.

[323] Cf. Madvig, _Röm. Staat._ i. 26 f.

[324] _B. C._ i. 53. 231.

[325] That there was an increase is held by Mommsen, _Röm. Staatsr._ iii.
179, n. 1; Drumann-Gröbe, _Röm. Gesch._ ii. 370. This view is favored by
Long, _Rom. Rep._ ii. 199 f. Lange, _Röm. Alt._ iii. 111 f., compromises.

[326] Livy, ep. lxxvii; App. _B. C._ i. 55. 242; p. 404.

[327] App. _B. C._ i. 59. 268; Cic. _Phil._ viii. 2. 7.

[328] Vell. ii. 20. 2; Livy, ep. lxxxiv; App. _B. C._ i. 64. 287; Cic.
ibid.; Exup. 4; Mommsen, _Röm. Staatsr._ iii. 180, 439.

[329] Livy, ep. lxxxvi.

[330] Mommsen, ibid. 180.

[331] 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.

[332] Livy i. 43. 13; Pliny, _N. H._ xviii. 3. 13; Varro, _L. L._ v. 45;
Mommsen, _Röm. Staatsr._ iii. 166, n. 1.

[333] 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.

[334] Kubitschek, _Rom. trib. or._ 24 f.; _Imp. rom. trib. discr._ 2.

[335] Cf. Grotefend, _Imp. rom. trib. descr._ 7.

[336] Kubitschek, _Imp. rom. trib. discr._ 2 f.

[337] Cic. _Flac._ 32. 79 f. On the growth of the tribe, see Mommsen,
_Röm. Staatsr._ iii. 175 ff.; Kubitschek, ibid. See also the maps in the
latter work.

[338] Flaccus, in Gell. xvii. 7. 5. A list was kept of the estates
comprising a tribe; Cic. ibid.

[339] Cf. the admission of new tribes; Livy vi. 5. 8: “Tribus quattuor ex
novis civibus additae;” viii. 17. 11.

[340] Dion. Hal. iv. 14. 2.

[341] P. 64.

[342] Livy xxix. 37. 3 f.; Soltau, _Altröm. Volksversamml._ 379, n. 3.

[343] Somewhat different is the view of Mommsen, _Röm. Trib._ 2 f.; _Röm.
Forsch._ i. 151; _Röm. Staatsr._ ii. 402; controverted by Soltau, ibid.
384 ff.

[344] The Romans had but two pursuits, agriculture and war, for the
sedentary occupations 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.

[345] Cf. Mommsen, _Röm. Staatsr._ iii. 630.

[346] It is well known too that freedmen were not regularly employed in
military service; Livy x. 21. 4; p. 354 f. below.

[347] 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, _Röm. 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 service,
according to their ratable property, as any other class of citizens; p.
22.

[348] Law of the Twelve Tables, in Gell. xvi. 10. 5; Schöll, _Leg. Duod.
Tab. Rel._ 116; Bruns, _Font. iur._ 18 f.; Cic. _Rosc. 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 alternative);
Isid. _Etym._ x. 27; Quint. _Inst._ v. 10. 55. The derivation ab
assidendo is nearer the truth; Vaniček, _Griech.-lat. Wörterb._ 1012;
Lange, _Röm. Alt._ i. 466; Mommsen, _Röm. Staatsr._ iii. 237 f.;
Kubitschek, in Pauly-Wissowa, _Real-Encycl._ i. 426. See also Varro, _De
vit. pop. rom._ i, in Non. Marc. 67; Gell. xix. 8. 15.

[349] 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; Vaniček, ibid. 506, 1149.

[350] 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. 11. 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 enrolled
in the tribe of the father. That the list comprised plebeians only
(Niebuhr, _Röm. Gesch._ i. 457 f.) has proved untenable; Mommsen, _Röm.
Forsch._ i. 153 f.

[351] Dion. Hal. iv. 14. 2; Livy i. 43. 14; Varro, _L. L._ v. 181.

[352] Livy, ibid.; Varro, ibid.; cf. p. 63, n. 4 below.

[353] Dion. Hal. iv. 19. 3; Fest. ep. 9; Ennius, in Gell. xvi. 10. 1;
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.

[354] Plutarch, _Cam._ 2, makes Camillus the author of the tax on orphans
for the support of the knights’ horses, thus connecting this measure
with the general introduction of pay—a statement of some importance
notwithstanding Kubitschek, in Pauly-Wissowa, _Real-Encycl._ i. 683.

[355] Zon. vii. 20: Οἰκόσιτοι ἐστρατεύοντο.

[356] Cic. _Rep._ v. 2. 3.

[357] Marquardt, _Röm. Staatsv._ ii. 150 f., 159 f. with citations.

[358] Cic. _Rep._ ii. 20. 36; Livy i. 43. 9; Plut. _Cam._ 2.

[359] Lange, _Röm. 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, _Röm. Staatsverf._ i. 95.

[360] 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; Varro, in
Non. Marc. 190; Livy ix. 34. 9; xxvii. 11. 15; Gell. iv. 12.

[361] Livy vii. 20. 7; Dio Cass. Frag. 33; Strabo v. 2. 3; Gell. xvi.
13. 7; Schol. Hor. _Ep._ i. 6. 62. On the aerarii and Caerites, see
further Mommsen, _Röm. Staatsr._ ii. 392-4, 401 ff., 406; Kubitschek, in
Pauly-Wissowa, _Real-Encycl._ i. 674-6; iii. 1284 f.; Hülsen, ibid. iii.
1281 f.; see also the works of Herzog, Lange, Madvig, and Willems.

[362] P. 466, n. 2.

[363] 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.

[364] 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.

[365] Livy vi. 14. 12.

[366] Ibid. 32. 1.

[367] Dion. Hal. v. 20; cf. iv. 11. 2; xi. 63. 2; Plut. _Popl._ 12.

[368] Livy ii. 9. 6; xxiii. 48. 8; xxxiii. 42. 4; xxxix. 7. 5; Pliny, _N.
H._ xxxiv. 6. 23; Marquardt, _Röm. Staatsv._ ii. 162, n. 4.

[369] Instances of public expenditure for the equipment or pay of troops
before this date (Dion. Hal. v. 47. 1; viii. 68. 3; ix. 59. 4; Livy iv.
36. 2) are either exceptional or more probably historical anticipations
of later usage. That before 406 the soldiers drew pay from their tribes
(Mommsen, _Röm. Trib._ 32; Lange, _Röm. Alt._ i. 540) is disproved by
Soltau, _Altröm Volksversamml._ 407 f.

[370] Marquardt, ibid. 164-7.

[371] Cf. Mommsen, _Röm. Staatsr._ ii. 392.

[372] Varro, _L. L._ v. 181.

[373] The function of the tribuni aerarii was to pay the soldiers; Cato,
_Epist. Quaest._ i, in Gell. vi (vii). 10. 2; Varro, v. 181; Fest. ep.
2; Pliny, _N. H._ xxxiv. 1. 1. Perhaps they also collected money into
the treasury; Cic. _Att._ 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. 1. 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,
_Altröm. Volksversamml._ 409-12.

[374] Diod. xx. 46; Livy ix. 46. 10 f.; cf. Mommsen, _Röm. Staatsr._ ii.
403.

[375] Mommsen, ibid. This class came to an end in the Social War;
Kubitschek, in Pauly-Wissowa, _Real-Encycl._ iii. 1285.

[376] In Mommsen’s opinion (_Röm. Staatsr._ ii. 403) these censors
transferred to the country tribes as many landholding members of the
urban tribes as possible.

[377] Livy ix. 46. 13 f.

[378] Livy xlv. 15.

[379] 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, n. 7.

[380] Cf. Livy xxiv. 18. 8 f.

[381] Livy xxiv. 43. 2 f.; Cic. _Cluent._ 42. 120.

[382] P. 86.

[383] I. 43. The account given by Dionysius Hal. iv. 16 f.; vii. 59, is
the same in principle, though slightly different in detail.

[384] P. 52.

[385] Fest. 246. 30; or “discriptio classium,” ibid. 249. 1.

[386] Livy i. 60. 4.

[387] Quoted by Cic. _Orat._ 46. 156, for the forms “centuria fabrum”
and “procum.” Varro, _L. L._ vi. 86-8, is an extract from the Tabulae of
later time; cf. Mommsen, _Röm. Staatsr._ iii. 245, n. 1.

[388] 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 = 1 mina; Dion. Hal. iv. 16 f.; Polyb. vi. 23. 15: Οἱ ὑπὲρ
τὰς μυρίας τιμώμενοι δραχμάς, descriptive of the highest rating—100,000
asses; Mommsen, _Röm. 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.

[389] P. 84.

[390] It is wrong to suppose with Soltau, in _Jahrb. f. cl. Philol._ xli
(1895). 412, n. 6, that all the details of the Servian system were known
only in this way.

[391] Cf. Livy i. 44. 2; Dion. Hal. iv. 15. 1.

[392] Smith, _Röm. Timokr._ 9 ff., supposes Calpurnius Piso to have been
the intermediary. But a problem in which so many of the quantities are
unknown is incapable of solution.

[393] P. 205, n. 5, 215.

[394] Livy i. 43. 8; Dion. Hal. iv. 18. 2; p. 207.

[395] P. 80.

[396] P. 81.

[397] P. 81.

[398] P. 82 f.

[399] Livy viii. 8. 3; Dion. Hal. iv. 22. 1.

[400] 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.

[401] P. 201.

[402] Helbig, _Sur les attributes des saliens_, in _Mémoires de l’acad.
d. inscr. et belles-let._ xxxvii (1906). 230 ff.; cf. _Comptes rendus de
l’acad._ 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.

[403] Not merely the chief, as Helbig, _Comptes rendus_, 1900. 517,
supposes. The ἠνίοχοι καὶ παραβάται 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.

[404] Helbig, _Le Currus du roi Romain_, in _Mélanges 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 Clazomenae;
Pellegrini, in Milani, _Studi e materiali_, i. 91-3, 98.

[405] 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, _Röm.
Timokr._ 38 f. An organization in definite numbers, however, as 1000 from
each tribe, cannot arise till the state has grown sufficiently populous
to make 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; Delbrück, _Gesch d. Kriegsk._ i. 225; Smith, ibid. 52
f., 56.

[406] _Il._ ii. 362.

[407] 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 groundless is the notion of Soltau,
_Altröm. Volksversamml._ 250, that the Homeric army was composed chiefly
of nobles with a few light-armed dependents.

[408] Cf. Liers, _Kriegswesen der Alten_, 78; Niese in _Hist. Zeitschr._
xcviii (1907). 264, 266, 289.

[409] _Il._ iv. 293 ff.

[410] Represented by the dances of the Salii; Helbig, ibid. 211 f.

[411] Paus. iv. 8. 11; Polyaen. i. 10; Delbrück, _Gesch. d. Kriegsk._ i.
30 f.; Niese, in _Hist. Zeitschr._ xcviii (1907). 274 ff.

[412] Cf. Thuc. v. 70; Polyaen. i. 10.

[413] Cf. Thuc. v. 69. For this and other depths, see Delbrück, ibid. i.
25; Liers, _Kriegswesen der Alten_, 45; Lammert, in _N. Jahrb. f. kl.
Philol._ xiii (1904). 276 f.

[414] Tyrtaeus, Frag. xi (Bergk). For the shield which covered “hips,
legs, breast, and shoulders,” v. 23 f. It was abolished by Cleomenes III;
Plut. _Cleom._ 11; cf. Liers, ibid. 34; Lammert, ibid. 276 f.

[415] XII. 26; Xen. _Anab._ i. 2. 16. A public gift of a bronze cuirass
is mentioned by Aristotle, _Lac. Pol._ 75, Müller, _Frag. Hist. Graec._
ii. p. 127. Gilbert, _Const. Antiq._ 73; Delbrück, ibid. 25, maintain
that the cuirass was a regular part of the equipment. This is true of
soldiers who carried smaller shields.

[416] Beloch, _Griech. Gesch._ i. 200 f.; cf. Liers, _Kriegswesen der
Alten_, 34 f.; Droysen, _Griech. Kriegsalt._ 3 ff.

[417] Cf. the name of one of these regiments Μεσσοάτης (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. ü.
Altwiss._ cxxxv. 83, holds that there were but four phylae.

[418] The name pentecosty indicates that it originally comprised fifty
men, which suggests that the century may have been a higher group. Before
the Peloponnesian War (Thuc. v. 68) the Lacedaemonian organization had
departed far from its original form.

[419] Droysen, _Griech. Kriegsalt._ 70; Gilbert, _Const. Antiq._ 72.
Compulsory service beyond the border ceased with the fortieth year; Xen.
_Hell._ v. 4. 13.

[420] Cf. Liers, _Kriegsw. der Alten_, 14.

[421] Busolt, _Griech. Gesch._ ii. 180 ff.; Helbig, in _Mém. de l’acad.
des inscr._ xxxvii¹ (1904). 164. But the Athenian army did not become
efficient till long after Solon; cf. Niese, in _Hist. Zeitschr._ xcviii
(1907). 278-82.

[422] 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.
xxiii. 2 (Müller); Athen. vi. 106. p. 273 f.; Wendling, in _Hermes_,
xxviii (1893). 335 ff.; Müller-Deecke, _Etrusker_, i. 364 ff.; Smith,
_Röm. Timokr._ 40. The circumstance does not prove that the Romans were
then in subjection to the Etruscans.

[423] 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. Wörterb._ 125; Soltau, _Altröm. Volksversamml._ 242;
Lange, _Röm. Alt._ i. 464. Others connected it with κᾶλος “firewood,”
hence “gathering;” Serv. _in Aen._ i. 39; Isid. _Etym._ xix. 1. 15;
Schol. Luc. i. 306. Corssen, _Ausspr._ i. 494, proposes to derive it from
a root “clat,” which appears in the Greek κλητεύειν (Lat. *clat-ē-re),
Germ. laden, which would still give the meaning “summoning;” cf. Curtius,
_Griech. Etym._ 139; Vaniček, _Griech. Lat. etym. Wörterb._ 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.

[424] 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 ceterarumque 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. 113; cf. Cic.
_Verr._ II. i. 41. 104; Pseud. Ascon. 188; Gaius ii. 274.

[425] The statement of Diod. xxiii. 2 (Müller), and of the _Ined. Vat._
(in _Hermes_, xxvii. 121) that the Romans derived their round shield
from the Etruscans accords with archaeological evidence for the use of
the round shield by the early Etruscans; Pellegrini, in Milani, _Studi e
materiali_, i. 91 ff.; Helbig, in _Comptes rendus de l’acad. des inscr._
1904. ii. 196.

[426] The notion of Delbrück, _Gesch. d. Kriegsk._ i. 227, that the army
was not organized in centuries till after the beginning of the republic
has no foundation whatever.

[427] P. 76. The original number cannot be determined.

[428] Tubero, in Gell. x. 28. 1; 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.

[429] Helbig, in _Comptes rendus de l’acad. des inscr._ 1900. 516 ff.;
_Mém. de l’acad._ etc. xxxvii¹ (1904). 157 ff.; _Hermes_ xl (1905). 109.
The objection of Smith, _Röm. Timokr._ 37, n. 3, is not well founded.

[430] Incertus Auctor (Huschke), p. 1.

[431] _Ined. Vat._, in _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, _Storia di Roma_, I. ii. 607, n. 1.

[432] 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.

[433] 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 materiali_, i. 106.

[434] Pellegrini, ibid. i. 97, fig. 5; 104, fig. 10.

[435] P. 75.

[436] P. 3, n. 8.

[437] VI. 13. 4.

[438] 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 5400 according
to our assumption as to the number of horsemen to the century; cf.
Gerathewohl, _Die Reiter und die Rittercenturien_, 3-8.

[439] Helbig, in _Hermes_, xl (1905). 101, 105, 107.

[440] Livy i. 13. 8; Dion. Hal. ii. 13. 1 f.; Fest. ep. 55.

[441] Cic. _Rep._ ii. 20. 36: Livy i. 36. 2, 7; Fest. 344. 20; ep. 349.
Writers differ slightly in the form of the names.

[442] P. 73, n. 7.

[443] 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: “Procum patricium in
descriptione classium, quam fecit Ser. Tullius, significat procerum. I
enim sunt principes;” Cic. _Orat._ 46. 156: “Centuriam fabrum et procum,
ut censoriae tabulae loquuntur, audeo dicere, non fabrorum aut procorum.”
Mommsen, _Röm. Staatsr._ iii. 109, n. 1, has rightly referred it to one
of the sex suffragia, 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 distinguished 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. 1
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. x. 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, _Röm. Staatsr._ iii. 254.

[444] 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.

[445] Cf. Polyb. vi. 25. 1.

[446] 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 statement. Mommsen, _Röm.
Staatsr._ iii. 477, believes that the normal number was 300, decreased to
200 when a greater number of legions was levied.

[447] Niese, _Hist. 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.

[448] Considerable time was required for the establishment of the
earliest known meaning of classis before the second and third divisions
were added.

[449] This is a conjecture of Bruncke, in _Philol._ xl (1881). 362,
favored by Delbrück, _Gesch. d. Kriegsk._ i. 222.

[450] P. 79, 86.

[451] Usually scholars (cf. Domazewski, in Pauly-Wissowa, _Real-Encycl._
iii. 1953 f.; Delbrück, _Gesch. d. Kriegsk._ i. 227; Smith, _Röm.
Timokr._ 39) assume fifteen centuries 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.

[452] Müller, 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.

[453] Polyb. vi. 20.

[454] Cf. Smith, _Röm. Timokr._ 121 ff.

[455] Livy iv. 46. 1: “Dilectum haberi non ex toto passim populo placuit:
decem 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.

[456] P. 72, 76.

[457] Cf. Smith, _Röm. Timokr._ 51 ff.

[458] In time of especial danger, however, the legion was increased to
five thousand; Polyb. vi. 20. 8.

[459] Cf. Mommsen, _Röm. Staatsr._ iii. 268, n. 2.

[460] 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 tradition; 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; Müller-Deecke, _Etrusker_, i. 366. It
was Samnite (Athen. vi. 106, p. 273 f.; cf. Sall. _Cat._ 51), and was
therefore probably adopted in the fourth century when Rome first came
into contact with that people.

[461] It is evident to the reader that these proportions are those of the
discriptio centuriarum 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 2½ or 2 iugera respectively.

[462] For the date, see Mommsen, _Röm. Staatsr._ ii. 334 f.; Kubitschek,
in Pauly-Wissowa, _Real-Encycl._ iii. 1902 f.; Pais, _Storia di Roma_, I.
ii. 13, 33 f.

[463] There may be some truth in the etymology suggested by Varro, _L.
L._ v. 89; cf. Soltau, _Altröm. Volksversamml._ 256.

[464] Cf. Liers, _Kriegsw. d. Alten_, 46.

[465] Dionysius Hal. iv. 17. 1, includes the fourth rating in the phalanx
of heavy infantry. For other possibilities of arrangement, see Smith,
_Röm. Timokr._ 46 f.

[466] Thuc. v. 68; p. 86 above.

[467] Delbrück, _Gesch. d. Kriegsk._ i. 229; Smith, _Röm. Timokr._ 45
ff. That the second and third divisions of the phalanx were sometimes
withdrawn to operate on the flanks (Soltau, _Altröm. Volksversamml._ 249)
is possible, though we have no proof of it.

[468] P. 76. From early times the Greek and Italian states kept arsenals
with which to arm the poor in crises; Liers, _Kriegsw. d. Alten_, 36 f.

[469] P. 84.

[470] 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, _Röm. Staatsr._ iii. 289;
Delbrück, _Gesch. d. Kriegsk._ i. 233.

[471] Notwithstanding Kubitschek, in Pauly-Wissowa, _Real-Encycl._ i. 135
f.

[472] Livy viii. 8. 8. Leinveber, in _Philol._ N. F. xv (1902). 36,
estimates 558 accensi to the legion.

[473] The cornicines tubicinesque; Livy i. 43. 7.

[474] The cornicines marched in front of the banners; Joseph. _Bell.
Iud._ v. 48; Fiebiger, in Pauly-Wissowa, _Real-Encycl._ iv. 1602.

[475] The number is unknown. In the legio III Augusta there were
thirty-six cornicines; _CIL._ vii. 2557; Fiebiger, ibid. 1603.

[476] Livy i. 43. 3.

[477] Varro, _L. L._ v. 88: “Centuria qui sub uno centurione sunt, quorum
centenarius iustus numerus;” Fest. ep. 53: “Centuria ... significat ...
in re militari centum homines;” Isid. _Etym._ ix. 3. 48; cf. Huschke,
_Verf. d. Serv._ 107.

[478] Estimates have been made by Müller, in _Philol._ xxxiv (1876). 127;
Delbrück, _Gesch. d. Kriegsk._ i. 224; Beloch, _Bevölk. d. griech.-röm.
Welt_, 42 f.; Smith, _Röm. 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, _Warscheinlichkeitsrechnung_
(Leipzig, 1903), p. 572, 574. The ratio is almost exactly three.

[479] Livy i. 43. 2. For the year 401, see Livy v. 10. 4: “Nec iuniores
modo conscripti, 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: “Nec ingenui modo aut iuniores sacramento adacti, sed seniorum
etiam cohortes factae libertinique centuriati. Et defendendae urbis
consilia agitabantur;” cf. Mommsen, _Röm. 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.

[480] Cf. Delbrück, _Gesch. d. Kriegsk._ i. 227 f.

[481] If the senior centuries were formed in the way assumed by Mommsen,
_Röm. Staatsr._ iii. 261 (“Nicht selbständig gebildet worden, sondern
daraus hervorgegangen, 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 annually 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, _Röm. Alt._ i. 474,
supposes, or to the first class; Tubero, _Historiae_, i, in Gell. x.
28. 1: “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.

[482] Cic. _Rep._ ii. 22. 40: “Illarum autem sex et nonaginta centuriarum
in una centuria tum quidem plures censebantur quam paene in prima classe
tota.”

[483] Soltau, _Altröm. Volksversamml._ 240.

[484] 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, _Alröm. Volksversammlungen_
(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.

[485] Livy xxiv. 8. 19.

[486] After the inclusion of the Tribus Clustumina; Beloch, _Ital. Bund_,
74; Smith, _Röm. Timokr._ 58, n. 1.

[487] Delbrück, _Gesch. d. Kriegsk._ i. 223 f.; Smith, _Röm. Timokr._ 58.

[488] Beloch, _Bevölk. d. griech.-röm. Welt_, 53; Meyer, _Forsch. z.
alt. Gesch._ ii. 162, n. 3; Delbrück, 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.

[489] P. 81.

[490] Cf. Liers, _Kriegsw. d. Alten_, 10.

[491] Ascribed to Camillus; Plut. _Cam._ 40; cf. Fröhlich, _Gesch. d.
Kriegsführung und Kriegskunst der Römer zur Zeit der Rep._; Schiller,
_Röm. Alt._ 708.

[492] P. 80; cf. 63.

[493] Fröhlich, ibid. 21 f.; Schiller, ibid.

[494] P. 76.

[495] Fest. 189. 13; ep. 56, 225; Fabius Pictor, _Annales_, i, in Gell.
x. 15. 3 f.

[496] Gell. i. 11. 3; Vergil, _Aen._ vii. 716: “Hortinae classes.”

[497] Gell. vi (vii). 13. 3: “In M. Catonis oratione, qua Voconiam legem
suasit, quaeri solet, quid sit classicus, quid infra classem;” p. 90
below.

[498] _CIL._ i. 200 (Lex Agr.). 37: (“Recuperatores ex ci)vibus L quei
classis primae sient, XI dato.”

[499] P. 66 f.; cf. Fest. 249. 1: “In descriptione classium quam fecit
Ser. Tullius.” The attempt of Smith, _Röm. Timokr._, especially 140
ff., to prove that the five classes were introduced by the censors of
179 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 possession 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 conditions, and the callings of men;” cf. Lange, _Röm. Alt._ ii.
265 f.; p. 354 f. below. Among the many objections to Smith’s theory
these two may be mentioned: if the classes were introduced at this
late historical time, (1) 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 _Römische Timokratie_ is
ably written, but its main thesis—the institution of the classes in the
second century B.C.—remains unproved.

[500] P. 64.

[501] _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.

[502] Mommsen, _Röm. Trib._ 111; _Röm. Staatsr._ iii. 247 ff.; Kübler,
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.
röm. 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, _Röm. 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.

[503] Sall. _Iug._ 86; Gell. xvi. 10. 14, 16; cf. Cass. Hem. 21 (Peter,
_Reliquiae_, i. 102 f.).

[504] Haeberlin, in _Riv. ital. numis._ xix (1906). 614 f.

[505] Samwer-Bahrfeldt, _Gesch. d. alt. röm. Münzw._ 176 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 rép. Rom._ i. 37.

[506] P. 66 f.

[507] As silver is at present worth 51¼ cents an ounce (so quoted in
New York, Sept. 5, 1908), a denarius (= ⅟₇₂ lb. Troy) of the coinage
preceding 217 is worth by weight today 8½ cents. A more just comparison
would be based on the present coined values. As a dollar contains 371¼
grains of silver, a denarius would be worth 21½ cents; or with a liberal
allowance for the alloy, we might say about 20 cents. The sesterce, ¼
denarius, would therefore be equivalent to five cents. An estate of
100,000 asses of heavy weight (sesterces) would be worth about $5000, of
the sextantarian 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 $45, and a
sheep at $4.50, we obtain a value of 45 cents for the libral _as_, or 22½
cents for one of 5 oz. weight (sesterce), which would give the denarius a
purchasing power of 90 cents.

[508] _Röm. Staatsr._ iii. 249. In his _History_ (Eng. ed. 1900), iii.
50, he expresses some doubt as to the numbers.

[509] I. 43; cf. p. 66.

[510] IV. 17. 2.

[511] Plut. _Popl._ 21.

[512] The view of Goguet, _Centuries_, 29 (following Niebuhr), that Livy
has made a mistake, is not so likely.

[513] VI. 19. 2: (All must serve in war) πλὴν τῶν ὑπὸ τὰς τετρακοσίας
δραχμὰς τετιμημένων· τούτους δὲ παριᾶσι πάντας εἰς τὴν ναυτικήν. That it
was the minimal rating of the fifth class, and not a still lower rating
for military use only, is proved by a statement of Sall. _Iug._ 86, that
till the time of Marius the soldiers were drawn from the classes.

[514] Cf. Mommsen, _Röm. Staatsr._ iii. 251.

[515] Commercially the denarius was then, after 217, worth sixteen asses;
Hultsch, in Pauly-Wissowa, _Real-Encycl._ v. 209.

[516] Cic. _Rep._ ii. 22. 40; Gell. xvi. 10. 10.

[517] XVI. 10. 10.

[518] Cf. Kübler, in Pauly-Wissowa, _Real-Encycl._ iii. 1522.

[519] This interpretation differs slightly from that of Mommsen, _Röm.
Staatsr._ iii. 237.

[520] 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. II. 7-9. This too has no reference to the
organization of the comitia.

[521] _N. H._ xxxiii. 3. 43: “Maximus census C̅X̅ assium fuit illo
(Servio) rege, et ideo haec prima classis.”

[522] Fest. ep. 113.

[523] VI (VII). 13.

[524] Plut. _Popl._ 21; Huschke, _Verf. d. Serv._ 164.

[525] VI. 23. 15.

[526] I. 43. 2.

[527] IV. 16. 2.

[528] After the adoption of the _as_ of an ounce weight in 217, sixteen
asses of this standard 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 reckoned 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 express 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 (οἱ πολλοί) of soldiers, he says, have
breastplates, but those rated above 10,000 drachmas wear cuirasses. If,
as Belot, _Rév. écon. et 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 without the cuirass.

[529] 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 division 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. Proced._
95 f. Mommsen held the opinion, on the contrary (_Abhdl. d. Akad. d.
Wiss. zu Berlin_, 1863. 468 f.), that the incensi were absolutely free
from the law.

[530] P. 85 above.

[531] VI (VII). 13. For his rating of 125,000 asses for the first class,
see p. 89.

[532] N. 5 above.

[533] Dio Cass. lvi. 10. 2; Pseud. Ascon. 188.

[534] Cf. Mommsen, _Röm. Staatsr._ iii. 249, n. 4; Greenidge, _Leg.
Proced._ 95.

[535] The part containing this reference was not essentially later than
the enactment of the Voconian law (p. 361).

[536] P. 403.

[537] XLV. 15. 2.

[538] _Röm. Staatsr._ iii. 249, n. 2.

[539] P. 90, n. 4.

[540] First offered in his _Histoire des chevaliers_, i (Paris, 1866),
and afterward defended in his _Révolution économique et monétaire ... à
Rome_ (1885).

[541] Cf. _Rév. écon. et mon._ 82.

[542] Livy xxiv. 11. 7 f.

[543] Ibid. § 5.

[544] Marquardt, _Röm. Staatsv._ ii. 498 f.

[545] _Rév. écon. et mon._ 50. The Roman and Campanian (cives sine
suffragio) knights together amounted to 23,000; Polyb. ii. 24. 14.

[546] About 270,000 in 220; Livy ep. xx.

[547] 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 furnishing two and those at 200,000-300,000 asses
three sailors. Otherwise the number of sailors will be greatly in excess
of the need.

[548] 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.

[549] P. 61 f.

[550] Livy i. 43. 9; Cic. _Rep._ ii. 20. 36; Fest. ep. 81, 221; Gaius iv.
27.

[551] Gaius iv. 27.

[552] _Rep._ ii. 20. 36.

[553] I. 43. 9.

[554] _Cam._ 2. This statement is valuable notwithstanding Kubitschek, in
Pauly-Wissowa, _Real-Encycl._ i. 683.

[555] 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.

[556] 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 Rittercent._ 49 ff., whose
interpretation is preferable to that of Mommsen, _Röm. 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, _Röm. Staatsr._ iii. 257, n. 3.

[557] Dionysius Hal. vi. 44. 2, assigns the first recruiting of the
equites from the plebeians to the year 494, dating the event about a
century too early; cf. Mommsen, _Röm. Staatsr._ iii. 478, n. 1.

[558] Livy v. 7. 5.

[559] All this may be gathered from Livy v. 7. 4-13; cf. Gerathewohl,
_Die Reiter und die Rittercent._ 16 ff.

[560] Polyb. vi. 19. 2; Livy xxvii. 11. 14.

[561] Livy xxvii. 11. 14, 16. This passage does not refer to those who
avoided duty equo privato, as Mommsen, _Röm. Staatsr._ iii. 478, n. 2,
supposes. Those were punished who were qualified to serve equo publico
but had avoided military duty altogether. 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.

[562] The credit of establishing this fact beyond a doubt is due to
Gerathewohl, _Die Reiter und die Rittercent._ 14-34.

[563] _N. H._ xxxiii. 1. 30: “Equitum nomen subsistebat in turmis equorum
publicorum;” cf. Fest. ep. 81: “Equitare antiqui dicebant equum publicum
merere.”

[564] P. 75.

[565] There were four legions each with 4000 infantry and 300 horse at
the opening of the First Punic War; Polyb. i. 16. 2. Four legions fought
against Pyrrhus at Asculum, 279; Dion. Hal. xx. 1. This was the normal
number for the Samnite wars; cf. Mommsen, _Röm. Staatsr._ iii. 477.

[566] Two legions of juniors was the maximal limit of Rome’s military
strength during 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.

[567] 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 (_Röm. Staatsr._ iii. 259, n. 5) is therefore wrong.

[568] In 200 the seven legions contained twenty-one hundred equites or
fewer; Gerathewohl, _Die Reiter und die Rittercent._ 56.

[569] _Orat._ lxiv: “Nunc ego arbitror oportere restitui (Mommsen’s
emendation ‘institui’ is unnecessary), quin minus duobus milibus ac
ducentis sit aerum equestrium.” Mommsen, _Röm. Staatsr._ iii. 259,
wrongly holds the opinion that the measure failed to pass.

[570] See citations collected by Gerathewohl, ibid. 56, n. 1.

[571] Dion. Hal. vi. 13. 4: Ἔστιν ὅτε shows that the number varied; cf.
Madvig, _Röm. Staat._ i. 171.

[572] Suet. _Aug._ 38.

[573] 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 treatment of the subject is compatible with
the view that the knights were then patrician—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
hordearium 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.
Altertumswiss._ iv (1846). 219, refer the equestrian census to Servius
Tullius.

[574] P. 94. It is for about this time (403) that Livy, v. 7. 5, first
refers definitely to an equestrian census.

[575] This fact is most clearly stated by Dion. Hal. vii. 59. 3, and is
confirmed by Cic. _Rep._ ii. 22. 39.; cf. Pliny, _N. H._ xxxiii. 3. 43;
for further evidence, see Belot, _Rev. écon. et mon._ 5 ff.

[576] P. 92.

[577] Hor. _Ep._ I. i. 57; Pliny, _N. H._ xxxiii. 2. 32; Mart. iv. 67; v.
23, 25, 38; Pliny, _Ep._ 1. 19. 2; Juv. i. 105; v. 132; xiv. 326; Suet.
_Caes._ 38.

[578] Serv. _in Aen._ iii. 89; vi. 190; xii. 259.

[579] 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 statement 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, _Röm. Alt._ i. 331;
Aust, _Relig. d. Römer_, 198.

[580] Serv. _in. Aen._ iii. 20: “Auspicari enim cuivis ... licet.”

[581] Cic. _Div._ i. 16. 28: “Nihil fere quondam maioris rei nisi
auspicato ne privatim quidem gerebatur, quod etiam nunc nuptiarum
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.

[582] Romulus consulted the rest of the gods along with Jupiter; Dion.
Hal. ii. 5. 1.

[583] The public auspices were Jupiter’s alone; Cic. _Leg._ ii. 8. 20.
So were the auspical chickens; _Div._ ii. 34. 72; 35. 73; cf. Mommsen,
_Röm. Staatsr._ i. 77, n. 2. In historical time the sign called for was
Jupiter’s lightning; Cic. _Div._ ii. 18. 42; _Vatin._ 8. 20; _Phil._ v.
3. 7. The epithet Elicius, notwithstanding Varro, _L. 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. Röm._ 106.

[584] P. 100, n. 3.

[585] In Gell. xvi. 4. 4.

[586] Cato, _De sacrilegio commisso_, in Fest. 234. 30. No one could
imagine Attus Navius, 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.

[587] Livy iv. 2. 5 f.

[588] Livy iv. 6. 1 f.

[589] Livy vi. 41. 5 f.

[590] Cic. _Div._ ii. 36. 76: “Nos, nisi dum a populo auspicia accepta
habemus, quam multum iis utimur?” i. 16. 28.

[591] Rubino, _Röm. Verf._ 46, n. 2, has pointed out that the phrase
auspicia publica occurs only in Livy iv. 2. 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.

[592] Livy x. 8. 9.

[593] The usual view, represented by Mommsen, _Röm. 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.

[594] Messala, in Gell. xiii. 15. 4; Fest. 157. 21; Rubino, _Röm. Verf._
71 ff.; Bouché-Leclerq, in Daremberg et Saglio, _Dict._ i. 580.

[595] Cic. _Leg._ iii. 3. 9; Livy vi. 41. 6; viii. 23. 15 f.

[596] Mommsen, _Röm. Staatsr._ i. 96 ff.

[597] Messala, _De auspiciis_, i, in Gell. xiii. 15. 4; Bouché-Leclerq,
ibid. ii. 581.

[598] Messala, ibid.

[599] As when for instance the consul forbids the minor magistrate to
“watch the sky” on an appointed comitial day; Gell. xiii. 15. 1: “In
edicto consulum, quo edicunt, quis dies comitiis centuriatis futurus sit,
scribitur ex vetere forma perpetua: ne quis magistratus minor de caelo
servasse velit.”

[600] _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 permission, himself holds the auspices.

[601] The first alternative is held by Mommsen, _Röm. Staatsr._ i. 89,
whereas Wissowa, in Pauly-Wissowa, _Real-Encycl._ ii. 2584, is inclined
to the latter.

[602] Gell. xiv. 7. 4, 8, quoting Varro.

[603] _Leg._ 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.

[604] 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.

[605] In stating that the tribunes were given the right to take auspices
for their assemblies, Zonaras, vii. 19, evidently confuses the oblativa
with the impetrativa. It is an 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. pl.
comitiis curiatis creati sunt.”

[606] Cic. _Div._ ii. 34. 71: “Hic apud maiores nostros 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. u. Kult. d.
Römer_, 456, n. 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, _Röm. Alt._ i. 338. The auspices are always said to belong not to
the augurs, but to the magistrates; Cic. _Leg._ iii. 3. 10; 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. 1.
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. Römer_, 200 f.; Wissowa, in
Pauly-Wissowa, _Real-Encycl._ ii. 2580 f.

[607] 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. Wörterb._ 55.

[608] Attus Navius from his boyhood was renowned for his augural skill;
Cic. _Div._ i. 17; Livy i. 36; Dion. Hal. iii. 70 f.; cf. Lange, _Röm.
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.

[609] 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.

[610] Cic. _Rep._ ii. 9. 16; 14. 26; Livy x. 6. 7; ep. lxxxix; Marquardt,
_Röm. Staatsv._ iii. 398; Lange, _Röm. Alt._ i. 334 f.; Wissowa,
_Relig. u. Kult. d. Römer_, 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. li. 20. 3; Wissowa, ibid. ii. 2317.

[611] As distinguished from magistrates they were privati; Cic. _Div._ i.
40. 89.

[612] Auctor Incertus (Huschke) p. 4: “Collegium augurum ordo hominum
prudentum erat, qui prodigiis publicis praeerant;” cf. Lange, _Röm. Alt._
i. 330.

[613] Cic. _Div._ ii. 34. 71 f.; cf. Livy xli. 18.

[614] Plut. _Q. R._ 99.

[615] Cic. _Leg._ ii. 8. 20; _Phil._ xiii. 5. 12.

[616] They are never called flamines, and no flamen was attached to their
office; Wissowa, _Relig. u. Kult. d. Römer_, 451. The great sacerdotal
colleges were more political than religious, and the college of augurs
was the most thoroughly political of all; Bouché-Leclerq, in Daremberg et
Saglio, _Dict._ i. 564.

[617] Cic. _Leg._ ii. 8. 20; Dio Cass, xxxvii. 24 f.; Aust, _Relig. d.
Römer_, 199; Wissowa, in Pauly-Wissowa, _Real-Encycl._ ii. 2325-30.

[618] 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 quaecumque vidissent; privatis spectio sine nuntiatione
data est, ut ipsi auspicio rem gererent, non ut alios impedirent
nuntiando.”—Valeton’s emendation, in _Mnemos._ xviii (1890). 455 f.

[619] Cic. _Leg._ ii. 8. 21: “Quique agent rem duelli quique domi
popularem, auspicium praemonento ollique obtemperanto;” cf. Lange, _Röm.
Alt._ i. 332.

[620] 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.

[621] 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. 11. 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. _Marcell._ 4) denoted 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, _Röm. Verf._ 88. n. 3; Aust, _Relig. d. Römer_,
201.

[622] 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.

[623] P. 112.

[624] 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.

[625] 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. u. Kult. d. Römer_,
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; Bouché-Leclerq, in Daremberg et Saglio, _Dict._ i.
554 f.

[626] 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. 1. 6; p. 105,
n. 1.

[627] Livy iii. 20. 6; Aust, _Relig. d. Römer_, 201.

[628] Gell. xiii. 14. 1; Varro, _L. L._ v. 143; Wissowa, _Relig. u. Kult.
d. Römer_, 456, n. 1.

[629] Wissowa, in Pauly-Wissowa, _Real-Encycl._ ii. 2339.

[630] Serv. _in Aen._ vi. 197; Varro, _L. L._ vi. 53; Wissowa, _Relig. u.
Kult. d. Römer_, 456; also his article in Pauly-Wissowa, _Real-Encycl._
ii. 2339.

[631] Varro, _L. L._ v. 143; Cic. _Leg._ ii. 8. 21; _CIL._ vi. 1233;
Wissowa, _Relig. u. Kult. d. Römer_, 456 and notes.

[632] Varro, _L. L._ v. 33.

[633] The elder Tiberius Gracchus vitiated the election of his successors
in the consulship 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.

[634] Fest. 250. 12; 157. 29; cf. Mommsen, _Röm. Staatsr._ i, 97, n. 1;
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-Hülsen, _Top. d. Stadt Rom_, 1. iii. 472
f., that this brook marked the boundary of the city auspices, seems
preferable.

[635] Avispex, auspex, bird-seer; Wissowa, in Pauly-Wissowa,
_Real-Encycl._ ii. 2580.

[636] Livy i. 7. 1.

[637] 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, _Röm. Staatsr._ i. 79, n. 1; Aust, _Relig. d. Römer_,
203; Wissowa, in Pauly-Wissowa, _Real-Encycl._ ii. 2333.

[638] 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; Plut. _Marcell._ 12;
cf. Mommsen, _Röm. Staatsr._ i. 80, n. 2.

[639] Tac. _Hist._ i. 18.

[640] Cic. _Div._ ii. 18. 42.

[641] Cic. _Div._ ii. 35. 74; 18. 43; Dio Cass, xxxviii. 13. 3 f.

[642] _Censoriae Tabulae_, in Varro, _L. L._ vi. 86: “Ubi noctu in
templum censor auspicaverit atque de caelo nuntium erit, praeconi sic
imperato ut viros vocet.”

[643] Wissowa, in Pauly-Wissowa, _Real-Encycl._ ii. 2585. The auguraculum
was doubtless used only by the augurs, not as Mommsen (_Röm. Staatsr._ i.
103, n. 2) supposes, by the magistrates.

[644] Livy viii. 14. 12; Cic. _Vatin._ 10. 24: “In rostris, in illo
inquam augurato templo ac loco.”

[645] Varro, _L. L._ vi. 91; Val. Max. iv. 5. 3; Cic. _Rab. Perd._ 4. 11;
Wissowa, in Pauly-Wissowa, _Real-Encycl._ ii. 2585 f.

[646] Valeton, in _Mnemos._ xxiii (1895). 28 ff.

[647] _Censoriae Tabulae_, in Varro, _L. L._ vi. 86; Livy viii. 23. 15;
x. 40. 2.

[648] 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.

[649] Verrius, in Fest. 347. 17; Serv. _in Aen._ ix. 4; Statius, _Theb._
iii. 459. Romulus, however, stood upright; Dion. Hall. ii. 5. 1.

[650] P. 105.

[651] Silence was essential to perfect auspices; Fest. 348. 29; ep. 64;
Livy viii. 23. 15; ix. 38. 14; x. 40. 2; Pliny, _N. H._ viii. 57. 223.

[652] Serv. _in Aen._ iii. 89; Livy i. 18. 9.

[653] Cf. Livy xli. 18. 14.

[654] Cf. Livy ix. 38. 15; 39. 1.

[655] Cf. p. 115, 118, n. 2.

[656] Livy v. 52. 15; ix. 38. 15 f.; 39. 1; Dion. Hal. ix. 41. 3; Cic.
_Att._ ii. 7. 2; 12. 1; viii. 3. 3. Hoffmann, _Patric. u. pleb. Curien_,
29 ff., is of the opinion that the assembly which passed the lex curiata
was not auspicated, his idea being that the lex curiata itself conferred
the ius auspiciorum publicorum. There is no ground, however, for either
of these suppositions.

[657] Cic. _N. D._ ii. 4. 11; Dion. Hal. vii. 59. 2. On the censorial
auspication of the comitia centuriata for the lustrum, see Varro, _L.
L._ vi. 86. Mommsen, _Röm. 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. 111, n. 1 below.

[658] Dio Cass. liv. 24. 1; Cic. _Fam._ vii. 30. 1; cf. Varro, _R. R._
iii. 2. 1.

[659] Dion. Hal. ix. 41. 3; 49. 5.

[660] This is shown by the _Commentarium Anquisitionis_ of M. Sergius, a
quaestor, in Varro, _L. L._ vi. 91.

[661] _Censoriae Tabulae_, in Varro, _L. L._ vi. 86 f.: “Ubi noctu
in templum censor auspicaverit atque de caelo nuntium erit ... tum
conventionem habet qui lustrum conditurus est.” Mommsen’s interpretation
(_Röm. Staatsr._ i. 81, n. 2, 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.

[662] The current view (cf. Lange, _Röm. Alt._ ii. 718; Mommsen, _Röm.
Staatsr._ i. 98; Karlowa, _Röm. Rechtsgesch._ i. 380; Liebenam, in
Pauly-Wissowa, _Real-Encycl._ iv. 1150) that no contio was auspicated
appears therefore to require modification.

[663] Plut. _Pomp._ 52; _Cato Min._ 42.

[664] Ael. Don. in Terent. _Ad._ iv. 2. 8: “Qui malam rem nuntiat,
obnuntiat, qui bonam, adnuntiat: nam proprie obnuntiare dicuntur augures,
qui aliquid mali ominis 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. Mommsen, _Röm. Staatsr._
i. 111, 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.; Bouché-Leclerq, in Daremberg et Saglio, _Dict._ i. 582.

[665] 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.

[666] Livy ix. 38. 16 with ch. 39. 1.

[667] Fest. 234. 27.

[668] P. 104; Cato, _De re mil._ in Fest. 214-7: “Magistratus nihil
audent imperare, ne quid consul auspici peremat.”

[669] P. 114.

[670] Cic. _Phil._ ii. 32. 81: “Nos (augures) nuntiationem solum
habemus, consules et reliqui magistratus etiam spectionem;” Varro, _Rer.
hum._ xx, in Non. Marc. 92: “De caelo auspicari ius neminist praeter
magistratum;” Fest. 333. 9 (quoted p. 106, n. 8). Madvig, _Röm. Staat._
i. 267, supposes that the augurs had both the spectio and the nuntiatio;
but this view contradicts the clear statement of Cicero; Mommsen, _Röm.
Staatsr._ 1. 109, n. 1. 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.

[671] The formula used is “in auspicio esse;” Cic. _Att._ ii. 12. 1.

[672] Cic. _Leg._ ii. 8. 20 f.; iii. 4. 11; 19. 43; _N. D._ ii. 3. 8;
_Div._ ii. 33. 71; cf. Lange, _Röm. Alt._ i. 339.

[673] P. 106 f.

[674] Cic. _Phil._ ii. 33. 83; _Div._ i. 40. 89: “Privati eodem
sacerdotio praediti rem publicam religionum auctoritate 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.

[675] _Phil._ ii. 33. 82 f.

[676] P. 115.

[677] Three were present at curiate assemblies; Cic. _Att._ iv. 17. 2;
cf. ii. 7. 2.

[678] In this case the augur not only assisted with his special
knowledge, but also acted as crier; Varro, _L. L._ vi. 95.

[679] Varro, _R. R._ iii. 2. 2; 7. 1.

[680] _Leg._ ii. 12. 31.

[681] Cic. _Phil._ ii. 32. 81.

[682] P. 104, 112.

[683] Gell. xiii. 15. 1; cf. Rubino, _Röm. Verf._ 79.

[684] Cic. _Att._ i. 16. 13: “Lurco tribunus pl. 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.

[685] In the famous case of Bibulus against Caesar, 59; Suet. _Caes._ 20;
cf. Dio Cass. xxxviii. 4. 2 f.

[686] 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. 2; _Prov. Cons._ 19. 45; Mommsen,
_Röm. 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.

[687] 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. 17 (“Num quem post urbem conditam scias
tribunum pl. egisse cum plebe, cum constaret servatum esse de caelo”) the
principle is laid down that any one who has the right to obnuntiate 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.

[688] Cic. _Sest._ 37. 79; cf. 38. 83; _Phil._ ii. 38. 99; _Att._ iv. 3.
3 f.; 17. 4; _Q. Fr._ iii. 3. 2 (cf. Drumann-Gröbe, _Gesch. Roms_, iii.
6; Mommsen, _Röm. 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.

[689] Cic. _Att._ iv. 9. 1.

[690] Cic. _Vatin._ 7. 16.

[691] Cic. _Dom._ 15. 39: “(Augures) negant fas esse agi cum populo, cum
de caelo servatum sit.”

[692] Cic. _Att._ iv. 3. 3.

[693] Cic. _Phil._ ii. 32. 81.

[694] Cic. _Att._ 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. Resp._ 23. 48; _Prov. Cons._ 19. 45.

[695] This procedure too was followed by Bibulus; Dio Cass. xxxviii. 6.
1; cf. Mommsen, _Röm. Staatsr._ i. 82, n. 3.

[696] That they were two separate enactments, and not one complex statute
by joint authors, is clearly indicated by Cic. _Har. Resp._ 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, _Röm. Staatsr._ i. 111, n. 4.

[697] 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).

[698] Dio Cass. xxxviii. 13.

[699] _Vatin._ 7. 18.

[700] Ibid. 9. 13.

[701] _Red. in Sen._ 5. 11; 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.

[702] _Kleine Schriften_, i. 274 ff., 341; _Röm. Alt._ ii. 315, 477 f.

[703] _Att._ iv. 3. 4; 16. 5; _Phil._ ii. 32. 81.

[704] Cic. _Vatin._ 6. 15; 7. 18.

[705] Cic. _Red. in Sen._ 5. 11: “Legem tribunus pl. 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. 11; Dio Cass. xxxviii. 13.
5 f.; 14. 2; Ascon. 9; Schol. Bob. 319 f.

[706] Cic. _Att._ iv. 3. 4; 16. 5; _Phil._ ii. 32. 81; cf. Fröhlich, in
Pauly-Wissowa, _Real-Encycl._ iv. 84; Drumann-Gröbe, _Gesch. Roms_, ii.
204 f.

[707] VIII. 23. 13 ff.

[708] Polyb. vi. 56. 6 ff.

[709] 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 Marcellus, 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.

[710] Probably the jurist of that name who lived under Hadrian, and who
is mentioned by Paulus, in _Dig._ v. 4. 3.

[711] XV. 27. 4: “Is qui non universum populum, sed partem aliquam adesse
iubet, non comitia, sed concilium edicere debet.”

[712] 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 plebiscita—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 distinction
between comitia and concilium.

[713] In Livy iii. 16. 6, this meeting is called a concilium.

[714] P. 341.

[715] _Röm. Forsch._ i. 170, n. 8; _Röm. Staatsr._ iii. 149, n. 3.

[716] _Mil._ 3. 7; cf. p. 122, n. 3 below.

[717] “Cum se in mediam contionem intulissent, abstinere suetus ante
talibus conciliis.”

[718] 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.

[719] A closely related question is whether concilium is ever restricted
to the deliberative 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
concilium”) 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 assembly, whether organized or
unorganized, whether called to prepare the citizens for voting or for any
other purpose.

[720] _Röm. Forsch._ i. 170, n. 8.

[721] 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.

[722] 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, n. 5.

[723] _Röm. Staatsr._ iii. 149, n. 3.

[724] Undoubtedly the Caesar who was consul in 64 B.C.; Teuffel and
Schwabe, _Rom. Lit._ i. 348. § 3; Drumann-Gröbe, _Gesch. Roms_, iii. 120,
n. 6.

[725] “P. Lucullus et L. Annius, tribuni plebis, resistentibus collegis
continuare magistratum nitebantur, quae dissensio totius anni comitia
impediebat.”

[726] _De com. trib. et conc. pl. discr._ (1875); Mommsen, _Röm.
Staatsr._ iii. 149, n. 1; Kornemann, in Pauly-Wissowa, _Real-Encycl._
iv. 802. The correctness of my results is acknowledged in the _Thesaurus
linguae latinae_, iv. 44 ff.

[727] “Tribunicii candidati compromiserunt HS quingenis in singulos apud
M. Catonem 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.

[728] “Permagni nostra interest te, si comitiis non potueris, at,
declarato illo, esse Romae.”

[729] _Cf._ Mommsen, _Röm. Staatsr._ ii. 482.

[730] “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 illa ruina rei publicae,
dicit se legem tulisse. Quis est, qui se, cum contra me ferebatur,
inisse suffragium confiteatur? cum autem de me eodem ex senatus consulto
comitiis centuriatis ferebatur, quis est, qui non profiteatur se adfuisse
et suffragium 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 furiae concitatae tamquam ad funus rei
publicae convolant?”

[731] “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.”

[732] _Röm. Forsch._ i. 161, n. 53.

[733] See list of citations for electoral assemblies, p. 133.

[734] “Tribus locis significari maxime populi Romani iudicium ac voluntas
potest, contione, comitiis, ludorum gladiatorumque consessu.”

[735] “Qui (optimates) non populi concessu, sed suis comitiis hoc sibi
nomen adrogaverunt.”

[736] “Iubet enim tribunum plebis, qui eam legem tulerit, creare
decemviros per tribus septemdecim, ut, quern novem tribus fecerint,
is decemvir sit. Hic quaero, quam ob causam initium rerum ac legum
suarum hinc duxerit, ut populus Romanus suffragio privaretur.... Etenim
cum omnes potestates, imperia, curationes ab universo populo Romano
proficisci convenit, tum 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 suffragiis, paucas tribus non certa condicione iuris, sed sortis
beneficio fortuito ad usurpandam libertatem vocare;” cf. _Imp. Pomp._ 15.
44; 22. 64.

[737] _Sest._ 51. 109.

[738] P. 301 f.

[739] “Mihi quidem eae verae videntur opiniones, quae honestae, quae
laudabiles, quae gloriosae, quae in senatu, quae ad populum, quae in omni
coetu concilioque profitendae sint;” cf. _Leg._ iii. 19. 44, quoted p.
127.

[740] 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 _Thes. ling. lat._ iv. 44-8, in
most respects excellent, still retains the groundless distinction between
republican and imperial usage.

[741] It will suffice here to mention the elder Cato; Livy xxxix. 40. 6:
“Si ius consuleres, peritissumus;” Cic. _Senec._ 11. 38: “Ius augurium,
pontificium, civile tracto.” On the subject in general, see Pais, _Stor.
d. Rom._ I. i. 68 and notes.

[742] For citations of other authors, see Gudeman, in _Thes. ling. lat._
iv. 45.

[743] All three passages are quoted, p. 130 f.

[744] 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 legum vel in creandis
magistratibus.” In this volume, accordingly, “legislative” refers not
merely to law-making in the narrower sense, but also to the passing of
resolutions on all affairs, domestic and foreign, including necessarily
the lex de bello indicendo.

[745] For separate lists of the elective and the legislative and judicial
comitia, see VI (below), where will be found sufficient illustrations of
(_b_).

[746] Only one instance of concilium as an elective body has been
found; _Lex Iulia Municipalis_, in _CIL._ i. 206. 132: 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.

[747] P. 124.

[748] Discussed on p. 123 f.

[749] P. 132.

[750] Ibid.

[751] Ibid.

[752] Fest. ep. 38: “Concilium dicitur a concalando, id est vocando.”
It is accepted by Curtius, _Griech. Etym._ 139; Vaniček, _Griech.-lat.
etym. Wörterb._ 143; Walde, _Lat. etym. Wörterb._ 136. But Corssen,
_Beitr. z. ital. Sprachk._ 41 f., rejects this etymology on the ground
that it does not harmonize with all the meanings of the word and of its
derivative “conciliare”; also Gudeman, in _Thes. ling. lat._ iv. 44.
Corssen, analyzing 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 assume the development
to be (1) “a calling together,” (2) “a meeting for consultation,” (3)
“a natural union of individuals of any kind.” In the third sense it is
applied 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.

[753] 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; Fest. ep. 38: “Concilium dicitur a populo consensu;”
Isid. _Etym._ vi. 16. 12: “Concilium a communi intentione ductum, quasi
communicilium.” This interpretation is supported by several glosses;
φιλοποιεία (_Corp. Gloss. Lat._ ii. 471. 49), συμβούλιον (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.

[754] Lodge, _Lex. Plaut._ i. 288; Gudeman, _Thes. ling. lat._ iv. 45.

[755] Cf. Gudeman, ibid. iv. 48.

[756] Cf. n. 1 and p. 132, II (_a_).

[757] P. 143.

[758] P. 132.

[759] 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.

[760] P. 133.

[761] Ibid.

[762] P. 134.

[763] 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.

[764] 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.

[765] P. 286, 292, 301 f.

[766] Corssen, _Ausspr._ i. 51; ii. 683; Vaniček, _Griech.-lat. etym.
Wörterb._ 184; Walde, _Lat. etym. Wörterb._ 140; cf. _SC de Bacch._ in
_CIL._ i. 196. 23: “In conventionid”; Fest. ep. 113: “In conventione
in contio”; _Commentaria Consularia_, in Varro, _L. L._ vi. 88; _Corp.
Gloss. Lat._ v. 280. 13; vi. 270, s. v.

[767] _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.

[768] _Att._ iv. 3. 4: “Contio biduo nulla.”

[769] Cf. Pliny, _N. H._ xviii. 3. 13: “Nundinis urbem revisitabant et
ideo comitia nundinis habere non licebat, ne plebs avocaretur;” Fest.
173. 30-3.

[770] Cic. _Att._ i. 14. 1; _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 (_Röm. Staatsr._ i. 199
and n. 3) that no contio was held on a market day as a rule, 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.

[771] 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; _Censoriae
Tabulae_, in Varro, _L. L._ vi. 87: “Conventionem habet qui lustrum
conditurus est.” A widespread idea (held by Karlowa, _Röm. Rechtsgesch._
i. 379; Liebenam, in Pauly-Wissowa, _Real-Encycl._ iv. 1149; Soltau,
_Altröm. Volksversamml._ 37, and others) that all contiones were
unorganized is therefore wrong.

[772] Fest. ep. 38.

[773] Cic. _Vatin._ i. 3; _Att._ xiv. 11. 1; 20. 3; xv. 2. 3; _Fam._ ix.
14. 7; x. 33. 2; Livy xxiv. 22. 1; Gell. xviii. 7. 6 f.; _Gloss. Corp.
Lat._ ii. 114. 25; 269. 27; 575. 8.

[774] P. 150.

[775] Examples of military contiones are Caes. _B. G._ v. 48; vii. 52 f.;
Livy i. 16. 1; 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.

[776] Dion. Hal. iv. 37; v. 11. 2; Plut. _Popl._ 3; the candidate, too,
for the regal office; Livy i. 35. 2.

[777] Cic. _Leg._ iii. 4. 10: “Cum populo ... agendi ius esto consuli,
praetori, magistro 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).”

[778] Schol. Bob. 330; cf. Mommsen, _Röm. Staatsr._ 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.

[779] It is necessary to include them in the general statement of
Messala, in Gell. xiii. 16 (17). 1, that the lower magistrates had the
right; cf. the note above.

[780] Fest. ep. 38: “Contio significat 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.

[781] Mommsen, _Röm. Staatsr._ i. 193. For a contio of the Xviri leg.
scrib. see Livy iii. 34. 1. 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 tribunicia.” 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.

[782] Mommsen, _Röm. 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. Vell. i. 10. 4; p. 426 below.

[783] Varro, _L. L._ vi. 90.

[784] Livy xliii. 16. 5.

[785] Varro, _L. L._ vi. 93.

[786] 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. 11; 41. 9; Val. Max. vi. 1. 7; viii. 1. 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,
_Röm. Staatsr._ i. 196, n. 2 f.

[787] Messala, _De Auspiciis_, in Gell. xiii. 16 (15). 1.

[788] Messala, _De Auspiciis_, in Gell. xiii. 16 (15). 1.

[789] Dion. Hal. vii. 16. 4; 17. 5; 22. 2; x. 41; Cic. _Sest._ 37. 79;
Livy iii. 11. 8; xxv. 3 f.; xliii. 16. 7-9; (Aur. Vict.) _Vir. Ill._ 65.
5; cf. Lange, _Röm. Alt._ i. 604, 826; p. 266 below.

[790] 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, _Röm. Alt._ ii.
716; iii. 299 f.

[791] Lange’s supposition (_Röm. 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, _Röm. Staatsr._ ii. 289; Liebenam,
in Pauly-Wissowa, _Real-Encycl._ iv. 1150.

[792] Cic. _Rab. Perd._ 4. 11: “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.

[793] Tac. _Ann._ ii. 32.

[794] Fest. 241. 29; Livy xxii. 57. 3; Suet. _Dom._ 8; Dio Cass. lxxix.
9. 3 f.; cf. Mommsen, _Röm. Staatsr._ ii. 56, n. 4.

[795] Cf. Livy xli. 15. 10; _Lex Gen._ 81, in _CIL._ ii. Supplb. 5439.

[796] Livy iii. 66. 2; v. 11. 15; 12. 1; xxxviii. 52. 4; 53. 6. On the
judicial contio, see p. 259.

[797] Livy xliii. 16. 5.

[798] XIII. 16. 13.

[799] Cic. _Att._ 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; xli. 10. 13.

[800] Livy x. 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 tribunate, after the day of election for the
following year had been set. This meeting 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 (_Röm. Staatsr._ iii. 392, n. 1) that stories of the kind prove
nothing does not accord with his own general attitude toward the sources
for the earlier history of Rome.

[801] P. 470.

[802] Cic. _Sest._ 50. 107 f.; _Red. in Sen._ 10. 26; _Pis._ 15. 34.

[803] P. 259 f.

[804] Livy xxxix. 17. 4 f.; Plut. _Aem._ 30; Pseud. Sall. _Declam. in
Cat._ 19; cf. the _Twelve Tables_, in _Censorin._ 24. 3.

[805] Livy xlii. 33. 2.

[806] 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 Flaminius (Livy xxvii. 21. 1; Cic. _Att._
i. 14. 1; _Sest._ 14. 33). In general, see Liebenam, in Pauly-Wissowa,
_Real-Encycl._ iv. 1151; Karlowa, _Röm. Rechtsgesch._ i. 380.

[807] 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 probably the contio in the Flaminian circus
was seated; Mommsen, _Röm. Staatsr._ iii. 396, n. 3.

[808] P. 107, 110. Although the tribune of the plebs did not auspicate
their assemblies, they like other magistrates occupied a templum during
the meeting; Livy ii. 56. 10.

[809] _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.

[810] Varro, _L. L._ vi. 86.

[811] _Censoriae Tabulae_, in Varro, _L. L._ vi. 87: “Praeco in templo
primum vocat, postea de moeris item vocat;” cf. 90 f.; Livy xxxix. 32.
11; Cic. _Fam._ vii. 30. 1.

[812] Documents, in Varro, _L. L._ vi. 86, 91.

[813] Livy xxv. 3. 17; Cic. _Sest._ 50. 107 f.

[814] 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 platform; Plut. _Cat. Min._ 27; Cic. _Vatin._ 10. 24: “In
rostris, in illo, inquam, augurato templo ac loco ... quo auctoritatis
exquirendae causa ceteri tribuni pl. principes civitatis producere
consuerunt.”

[815] Documents, in Varro, _L. L._ vi. 88, 91; cf. 93.

[816] 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._ 1; 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, _Röm. Staatsr._ iii. 390, n. 2.

[817] P. 430, 439.

[818] 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.

[819] 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 contrast the despotism of the
monarchy with the liberty of the republic. But according to Livy, i. 16.
5 ff., and Cicero, _Rep._ ii. 10. 20 (cf. Mommsen, _Röm. 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 necessary; cf. Livy i. 26. For the general usage in the
primitive European assembly, see p. 169.

[820] 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.

[821] _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.

[822] 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.

[823] E.g. Cic. _Att._ iv. 1. 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. 1; 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.

[824] Ascon. 38.

[825] Sall. _Iug._ 33 f.

[826] 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, _Röm. Staatsr._ ii. 313, n. 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.

[827] 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, _Dict._ iv. 1145) to the consul
Horatius, 509, is a myth (Lange, _Röm. 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. l. c.). The
rule that women were intestabiles is proved by such exceptions.

[828] XXXIV. 2. 11.

[829] Frag. 83. 8.

[830] III. 8. 6.

[831] Appian, _B. C._ iv. 32-4; see also p. 326.

[832] Livy xlv. 21. 6; 36. 1.

[833] Livy xlv. 36; cf. the statement of Dion. Hal. x. 41. 1, that on a
certain occasion the crier invited all who wished to speak. These two
passages are credible, notwithstanding the doubt expressed by Mommsen,
_Röm. 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.

[834] P. 136.

[835] Plut. _Q. R._ 63.

[836] Quint. _Inst._ iii. 11. 13: “Qui bona paterna consumpserit, ne
contionetur.”

[837] (Cic.) _Herenn_. i. 11. 20; cf. _Lex Bant._ (133-118 B.C.) in
_CIL._ i. 197. 2 f.

[838] Such a grant in Alexandria Troas, mentioned by _CIL._ iii. 392,
Mommsen (_Röm. Staatsr._ i. 201, n. 3) believes to have been in imitation
of Roman usage.

[839] Varro, _Rer. hum._ xxi, in Gell. xiii. 12. 6.

[840] Ibid.; cf. Val. Max. iii. 7. 3: “C. Curiatius tr. pl. productos
in contionem consules compellebat ut de frumento emendo referrent.”
Mommsen’s interpretation (_Röm. 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 comment of Gellius (§
7 f.: “Huius ego iuris, 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 principle 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.

[841] P. 146.

[842] P. 145, n. 3.

[843] Dio Cass. xxxviii. 2-5.

[844] Cic. _Att._ ii. 24. 3: “Caesar, is qui olim praetor cum esset, Q.
Catulum ex inferiore loco iusserat dicere, Vettium in rostra produxit;”
_Vatin._ 10. 24: “Cum L. Vettium ... in contionem produxeris, indicem
in rostris, in illo, inquam, augurato templo ac loco collocaris, quo
auctoritatis exquirendae causa ceteri tribuni pl. principes civitatis
producere consuerunt.”

[845] Dio Cass. xxxix. 34. 2; Plut. _Cat. Min._ 43.

[846] Or as Foster translates, “about the distressing condition of the
times.”

[847] Dio Cass. xxxix. 34; Plut. ibid.

[848] Cic. _Imp. Pomp._ 24. 69.

[849] Livy x. 8. 12.

[850] Ibid. xxxiv. 4. 20.

[851] Dio Cass. xxxix. 35. 1.

[852] Ibid.

[853] Livy ii. 56. 9: “Quirites, ... crastino die adeste.”

[854] _Commentaria Consularia_, in Varro, _L. L._ vi. 88: “Impero qua
convenit ad comitia centuriata.”

[855] Livy ii. 56. 12: “Si vobis videtur, discedite, quirites.”

[856] Preparatory to voting, the plebeian tribune Laetorius ordered the
removal of all, including patricians, who were not to vote; Livy ii. 56.
10: “Submoveri Laetorius iubet praeterquam qui suffragium ineant.”

[857] 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;
§ 11; cf. Dion. Hal. ix. 48. Again on other occasions the patricians when
ordered refused to withdraw before the voting (cf. Livy iii. 11. 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 populum 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, _Röm. Staatsr._ iii. 390, n.
1.

[858] Acclamation was retained as a regular form of voting by the army;
p. 202; cf. Bernhöft, _Röm. Königsz._ 153.

[859] Philochorus, 79 b, in Müller, _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.

[860] Cf. Schröder, _Deutsche Rechtsgesch_. 16.

[861] It is interesting in this connection that in the Homeric assembly
the heralds (κήρυκες), who were a sacerdotal class, kept order; cf.
_Il._ ii. 97 f. In the German assembly the priests with coercive power
maintained quiet; Tac. _Germ._ ii. 3; Schröder, _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.

[862] 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 presidency for secular business,
such as an appeal to the comitia from the pontifical imposition 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, 11), 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.

[863] 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 messengers; cf. Fest. ep. 38; _Corp. Gloss. Lat._ ii.
95. 42: δοῦλοι δημόσιοι. This use became obsolete, but the word continued
to apply to certain assistants of the sacerdotes; Serv. _in Georg._ i.
268; _Corp. Gloss. Lat._ ii. 96. 3; iv. 214. 1; v. 275. 1; 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 ff.; 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, _Dict._ i. 814. For other
citations, see Samter, in Pauly-Wissowa, _Real-Encycl._ iii. 1335 f. They
correspond to the lictors of the magistrates.

[864] Varro, _L. L._ v. 13: “Nec curia Calabra sine calatione potest
aperiri.”

[865] Saglio, in Daremberg et Saglio, _Dict._ 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. 1. Possibly the
lictor curiatius (or curiatus; _CIL._ iii. 6078) should in this case be
identified with the calator.

[866] Labeo, in Gell. xv. 27. 1 f.: “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.

[867] 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, _Röm. Verf._ 245, n. 1; Lange, _Röm. Alt._
i. 398 f.; Hülsen, in Pauly-Wissowa, _Real-Encycl._ iv. 1821.

[868] Humbert, in Daremberg et Saglio, _Dict._ i. 1376.

[869] He may have appointed a priestly substitute for such functions.

[870] Livy xxii. 57. 3: “Scriba pontificis, quos nunc minores pontifices
adpellant.” That he acted in behalf of the college is proved by Varro,
_L. L._ vi. 27 (note below).

[871] Varro, _L. L._ vi. 27: “Primi dies mensium nominati Kalendae,
quod his diebus calantur eius mensis nonae a pontificibus, quintanae
an septimanae sint futurae in Capitolio in curia Calabra”; _Hemerol.
Praenest._ Ian. 1, in _CIL._ i.² 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,
_Röm. Staatsr._ ii. 39, n. 1. 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.

[872] Varro, _L. L._ vi. 13, 28; Macrob. _Sat._ i. 15. 12; cf. Herzog,
_Röm. Staatsverf._ i. 109 and n. 1. Mommsen, _Röm. Staatsr._ 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, _Röm. Alt._ i. 398; Herzog, _Röm. Staatsverf._
i. 111; Marquardt, _Röm. Staatsv._ iii. 283, 323; Wissowa, _Relig. u.
Kult. d. Römer_, 440, for the view here maintained that the assembly for
hearing the calendar was calata.

[873] Macrob. _Sat._ i. 15. 9.

[874] For the inauguration of the flamen Dialis, see Gaius i. 130; iii.
114; 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. 11;
the flamen Quirinalis, Livy xxxvii. 47. 8; cf. Wissowa, _Relig. u. Kult.
d. Römer_, 420, n. 3. The inauguration of augurs probably took place in
their own college.

[875] 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.

[876] Serv. _in Aen._ vi. 859.

[877] Aust, _Relig. d. Römer_, 130.

[878] Mommsen, _Röm. 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 therefore have taken place for a time
in some other form of meeting. Kübler, in Pauly-Wissowa, _Real-Encycl._
iii. 1331, objects to this interpretation but finds nothing better.

[879] Cic. _Brut._ 1 (of an augur); _Phil._ ii. 43. 110 (of a flamen);
_Leg._ ii. 8. 21 (of sacerdotes); Macrob. _Sat._ iii. 13. 11 (of the
flamen Martialis); Livy. i. 18. 6 (of the king).

[880] Fest. 343. 8; Wissowa, _Relig. u. Kult. d. Römer_, 420, n. 5, 421,
n. 1.

[881] Gell. i. 12. 11, citing the lex Papia. Gellius calls this assembly
a contio, which includes the calata comitia; cf. xv. 27. 3: “Calatiis
comitiis in populi contione.”

[882] P. 161, 163, 165.

[883] P. 157 f.

[884] P. 170.

[885] Quint. _Inst._ viii. 3. 3: fragor here signifies “thunders of
applause.”

[886] Cic. _Fam._ xi. 13. 3; Livy xxviii. 26. 12; xl. 36. 4; xlii. 53. 1.

[887] P. 135.

[888] P. 74 f., 96.

[889] P. 211.

[890] On the meaning of suffragium, see the excellent article by
Rothstein, in _Festschrift zu Otto Hirschfelds 60stem Geburtstage_, 30-3.

[891] 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 faciendis
destinata erant”; Theophilus, _Paraphr. Inst._ ii. 10. 1.

[892] _Röm. Verf._ 242-5, with notes, following J. H. Dernburg, _Beitr.
zur Gesch. der röm. Testamente_, i. 53-78.

[893] _Paraphr. Inst._ ii. 10. 1, p. 154 ed. Ferrini: Ὁ βουλόμενος ὑπὸ
πάρτυρι διετίθετο τῷ δήμῳ.

[894] XV. 27. 3. This view is accepted by Lange, _Röm. Alt._ i. 398 f.;
Schiller, _Röm. Alt._ 628; Soltau, _Altröm. Volksversamml._ 39; Mommsen,
_Röm. Forsch._ i. 126, 239, 270; Madvig, _Röm. Staat._ i. 221; Kübler, in
Pauly-Wissowa, _Real-Encycl._ iii. 1333; Mispoulet, _Inst. polit. Rom._
i. 202 f.

[895] P. 161.

[896] II. 101.

[897] P. 143.

[898] P. 139.

[899] Schrader, _Reallex._ 221, 864; Leist, _Alt-arisch. Jus Gent._ 419;
_Alt-arisch. Jus Civ._ ii. 171; Fustel de Coulanges, _Ancient City_, 104.

[900] Tac. _Germ._ 20. 5. The oldest Frankish laws make no mention of
testaments; Schrader, ibid. 865.

[901] Demosth. xx. 102; Plut. _Sol._ 21; Telfy, in _CJA._ 1399-1412, with
comment, p. 613 ff.

[902] Plut. _Agis_, 5; cf. Thumser, _Griech. Staatsalt._ 259.

[903] Bücheler und Zitelmann, _Recht von Gortyn_, 134.

[904] Aristot. _Polit._ 1309, a 24; cf. Thalheim, _Griech. Rechtsalt._ 61.

[905] Fustel de Coulanges, _Anc. City_, 105; Leist, _Alt-arisch. Jus
Civ._ ii. 171.

[906] Schrader, _Sprachv. und Urgesch._ ii.³ (1907). 374 f.

[907] This view is held by Schrader, ibid. 865; Ihering, _Geist des
röm. Rechts_, i. 145 ff.; Mommsen, _Röm. Staatsr._ ii. 37 f.; iii.
318 ff.; Kappeyne van de Coppello, _Comitien_, 67; Poste, _Gai Inst._
178; Hallays, _Comices_, 18; and with some hesitation by Herzog, _Röm.
Staatsverf._ i. 110, 118, 1063.

[908] _Röm. Chronol._ 241 ff.; _Röm. Staatsr._ ii. 38, n. 2; iii. 319;
_CIL._ i.² p. 289; accepted by Lange, _Röm. Alt._ i. 399; Kübler, in
Pauly-Wissowa, _Real-Encycl._ iii. 1331; Marquardt, _Röm. Staatsv._ iii.
323.

[909] Q(uando) R(ex) C(omitiavit); _CIL._ i. p. 291 f. after the two days
mentioned; cf. Varro, _L. L._ 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 significare,
quando rex sacrificulus divinis rebus perfectis in comitium venit”; Ovid,
_Fast._ v. 727; Plut. _Q. R._ 63; _Fast. Praenest._ Mart. 24; for other
citations, see _CIL._ i². p. 289.

[910] _Röm. Staatsr._ ii. 38, n. 2.

[911] Herzog, _Röm. Staatsverf._ i. 110, n. 2.

[912] See note 8 above; cf. Wissowa, _Relig. u. Kult. d. Römer_, 440, n.
6.

[913] See p. 159, n. 8 above.

[914] Gaius ii. 101, 103.

[915] Cic. _Dom._ 13. 34; cf. Leonhard, in Pauly-Wissowa, _Real-Encycl._
i. 398 ff.

[916] Gell. v. 19. 4, 6 f.; Gaius i. 99; Cic. _Att._ ii. 12. 2; _Dom._
15. 39.

[917] Gell. v. 19. 5.

[918] Cic. _Dom._ 13. 34.

[919] Gell. v. 19. 6.

[920] Gaius i. 99.

[921] 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. l’acad. d. inscr. et bell.-let._
xxi (1893). 350-3. It evidently illustrates the preliminary stage of an
adrogatio; see also Tac. _Hist._ i. 15.

[922] 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, ut moris est, adoptarem.” Rubino, _Röm. Verf._ 253, supposes
that these comitia were under a civil magistrate; but the expressions
“arbitris pontificibus” and “apud pontifices” prove pontifical
management. Caesar, who passed the curiate law for the arrogation of
Clodius, was supreme pontiff as well as consul.

[923] Gell. v. 19. 9.

[924] Gell. v. 19. 8; Tac. _Hist._ i. 15; Cic. _Dom._ 15. 39; _Att._ ii.
12. 2; Dio Cass. xxxvii. 51. 1 f. Mommsen, _Röm. Forsch._ i. 126, 270,
supposed that the curiae simply witnessed the transaction, without giving
their vote; but afterward (_Röm. Staatsr._ iii. 38) he changed his mind.

[925] Gell. xv. 27. 3.

[926] This seems to be the meaning of Serv. _in Aen._ ii. 156:
“Consuetudo apud antiquos fuit, ut qui in familiam vel gentem transiret,
prius se abdicaret ab ea in qua fuerat et sic ab alia acciperetur.”

[927] Gell. v. 19. 8, 10.

[928] Appian, _B. C._ iii. 14. 49.

[929] Ibid. iii. 94. 389; Dio Cass. xlv. 5. 3.

[930] On the testamentary adoption, see further Leonhard, in
Pauly-Wissowa, _Real-Encycl._ i. 420 f.

[931] Zon. vii. 15. 9.

[932] Cic. _Dom._ 14. 37; _Scaur._ 33; Ascon. 25.

[933] Mommsen, _Röm. Forsch._ i. 123 ff., has collected the cases.

[934] Suet. _Aug._ 2.

[935] Livy iv. 16. 3.

[936] Cic. _Brut._ 16. 62.

[937] Dio Cass. xxxvii. 51. 1: Τήν τε εὐγένειαν ἐξωμόσατο. The similarity
of this oath to the detestatio sacrorum warrants the conclusion that
it, too, was taken in the calata comitia. The abjuration of one’s rank,
however, was not a detestatio sacrorum, for the reason given in n. 8
below.

[938] Dio Cass. xxxvii. 51. 1: Καὶ πρὸς τὰ τοῦ πλήθους δικαιώματα, ἐς
αὐτόν σφων τὸν σύλλογον ἐσελθὼν, μετέστη; Cic. _Att._ i. 18. 4: “C.
Herennius ... tribunus pl. ... 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-Gröbe, _Gesch.
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. 16 f.) in contrast with the curiate comitia
represented by thirty lictors; cf. p. 129 f.

[939] 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.

[940] Lange, ibid. ii. 19.

[941] 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,
_Att._ i. 18. 5, alleges, favors the latter view.

[942] Cic. _Att._ i. 19. 5.

[943] Dio Cass. xxxvii. 51. 2; xxxviii. 12. 1 f.; Cic. _Dom._ 13. 35; 29.
77.

[944] Cic. _Dom._ 14. 37: “Nam adoptatum 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.

[945] 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.

[946] Lange, _Kleine Schriften_, ii. 23 ff. Cicero aims to bring the
greatest possible confusion into the case by representing Clodius as
having given up his native religion 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.

[947] This double act is most clearly stated by Livy iv. 4. 7:
“Nobilitatem istam vestram ... non genere nec sanguine sed per
coöptationem in patres habetis ... post reges exactos iussu populi”;
p. 17, n. 5; cf. Dion. Hal. v. 40. 5: Ἡ βουλὴ καὶ ὁ δῆμος εἴς τε τοὺς
πατρικίους αὐτὸν (Appius Claudius) ἐνέγραψε. 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 coöptation. 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 coöpted into the class of
patrician gentes.

[948] V. 13. 2.

[949] Fest. 246. 23.

[950] 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-Gröbe, _Gesch. Roms_, ii. 128 f.; iii. 602.

[951] Dio Cass. xliii. 47. 3; xlv. 2. 7; Suet. _Caes._ 41.

[952] The lex Saenia; Tac. _Ann._ xi. 25.

[953] Augustus, _Mon. Ancyr._ 8; Dio Cass. lii. 42. 5.

[954] Neither the pontifical examination nor the curiate law is noticed
by the authorities, who refer briefly to the two acts. Lange, _Röm. Alt._
iii. 472, and Mommsen, _Röm. Staatsr._ ii. 1101, 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, _Röm. Staatsverf._ ii. 38 f., 130;
Drumann-Gröbe, _Gesch. Roms_, iii. 602; Büdinger, in _Denkschr. d.
kaiserl. Akad. d. Wiss. Phil.-hist. Cl._ xxxi (1881). 211-73; xxxvi
(1888). 81-125.

[955] _Röm. Staatsr._ iii. 32.

[956] Ch. ii above; also p. 166, n. 3 below.

[957] Botsford, in _Pol. Sci. Quart._ xxii (1907). 689-92.

[958] IV. 3. 4.

[959] P. 17.

[960] IV. 4. 7; p. 24, n. 5, 200, n. 1; cf. Suet. _Tib._ 1: “Patricia
gens Claudia ... in patricias cooptata.”

[961] Mommsen’s theory (_Röm. Staatsr._ iii. 29 and n. 2) that the
patriciate was conferred through the coöperation 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.

[962] Livy iv. 4. 7; p. 17, n. 5, 164, n. 6.

[963] Mommsen, _Röm. Forsch._ i. 74 ff.

[964] Gell. v. 19. 1-3.

[965] 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 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.

[966] Schrader, _Reallexikon_, 924; Spencer, _Principles of Sociology_,
ii. 407.

[967] _Il._ i. 54; ii. 50; xix. 40 ff.; _Od._ ii. 6 f.

[968] Kovalevsky, _Modern Customs and Ancient Laws of Russia_, 122, 124.

[969] We must except the purely sacerdotal meetings of the curiae
described in the preceding chapter.

[970] Tac. _Germ._ 11. 2; cf. Schröder, _Deutsche Rechtsgesch_. 22 f.

[971] _Rhetra_ of Lycurgus, in Plut. _Lyc._ 6; cf. Gilbert, _Altspart.
Gesch._ 131 f.

[972] Arist. _Ath. Pol._ 43. 4; cf. Gilbert, _Const. Antiq. of Sparta and
Athens_, 285.

[973] 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.

[974] 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._ 11. 1; Schröder, 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 _Il._ 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.

[975] _Il._ ii. 278 ff.

[976] Tac. _Germ._ 11. 4. As a rule the North American Indians enjoy the
same freedom of speech in their councils; Farrand, _Basis of American
History_, 160, 211.

[977] _Il._ ii. 211 ff.; xii. 212 f. Calchas the seer, a man of the
people, gained the protection of Achilles before daring to speak against
Agamemnon; _Il._ i. 76 ff.

[978] On the control of the Etruscan assembly by the nobles, see
Müller-Deecke, _Etrusker_, i. 337; Hirt, _Indogermanen_, i. 55.

[979] _Od._ ii. 28 ff.

[980] P. 154 f.

[981] _Od._ ii. 35 ff.; cf. the public complaint made by a Slavic chief
of an injury he had received; Kovalevsky, ibid. 121.

[982] 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.

[983] 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. and Anc. Laws_, 126. The
famous trial scene in the Homeric assembly; _Il._ xviii. 497 ff. For
the Macedonians; Curt. vi. 8. 25. It is probably true of Vedic India;
Schrader, ibid. 688.

[984] For the Germans; Brunner, _Deutsche Rechtsgesch_. i. 129. For the
Slavs; Kovalevsky, 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 proposed to the assembly to
quit the war and return home, the people gladly accepted; _Il._ 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; _Il._ vii. 382 ff.

[985] 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 people 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.

[986] _Il._ i. 22 ff. For the Lacedaemonians, see Thuc. i. 87.

[987] Tac. _Germ._ 11. 5; _Hist._ v. 17. Sometimes the Germans mingled
clamor with the clash of weapons; Amm. Marc. xvi. 12. 13.

[988] Caesar, _B. G._ vii. 21.

[989] 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.

[990] For the Homeric Greek assembly, see Hermann-Thumser, _Griech
Staatsalt._ 67 f.

[991] _Il._ i. 11 ff.

[992] Ibid. i. 135 ff., 320 ff.

[993] Ibid. vii. 345 ff.

[994] In Italy, Livy i. 45. 2; 49. 8.

[995] This right is proved by the fact that the death of a king freed
the neighboring states from their treaty obligations to his community,
_e.g._, 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, _Röm. Verf._ 175, n. 2. At the time of the Caudine
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.

[996] 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 equivalent 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. 11. In general the leading
men and the senate were able by their own oath to bind the community;
Caes. _B. G._ iv. 11; 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.

[997] Leist, _Graeco-ital. Rechtsgesch._ 130, 136 f. Under favorable
conditions the assembly 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
Rechts_, 130; Cramer, _Verfassungsgesch. d. Germ. u. Kelt._ 61 et pass.),
is altogether wrong in supposing the assembly to have been originally
sovereign.

[998] 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).

[999] Ginnell, _Brehon Laws_, 42.

[1000] _Od._ iii. 214 f.; xiv. 239; xvi. 75, 95 f., 114; xix. 527.

[1001] In Homeric Greece; _Il._ i. 231 f.; iii. 57. The Herulians killed
their king merely because they were weary of royal government; Procopius,
_Bel. Goth._ 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.

[1002] Hdt. vi. 56.

[1003] _Rhetra_ of Polydorus and Theopompus, in Plut. _Lyc._ 6. This
power is essentially the same as the auctoritas of the Roman patres.

[1004] Fustel de Coulanges, _Monarchie Franque_, 598 ff.

[1005] Ibid. 638 ff.

[1006] Hodgkin, _Italy and her Invaders_, iii. 239 ff.

[1007] Kovalevsky, _Mod. Cust. and Anc. Laws_, 148.

[1008] The rest of this chapter is largely a reproduction of Botsford,
_Lex Curiata_, in _Pol. Sci. Quart._ xxiii (1908). 498-517.

[1009] P. 2, 176.

[1010] Cic. _Rep._ 28. 50; cf. 23. 43.

[1011] Livy i. 46. 3; 60. 3; ii. 1. 6 f.; 15. 3.

[1012] Cic. _Planc._ 4. 9: “Non est consilium in vulgo.”

[1013] Cf. Livy i. 34. 12.

[1014] P. 145.

[1015] P. 235.

[1016] II. 14. 3: Τῷ δὲ δημοτικῷ πλήθει τρία ταῦτα ἐπέτρεψεν·
ἀρχαιρεσιάζειν τε καὶ νόμους ἐπικυροῦν καὶ περὶ πολέμου διαγιγνώσκειν,
ὅταν ὁ βασιλεὺς ἔφη.

[1017] I. 49. 7.

[1018] This interpretation, offered by Rubino, is accepted by Lange,
_Röm. Alt._ ii. 599.

[1019] _Röm. Verf._ 257 ff.

[1020] 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.

[1021] Livy i. 24. 4 ff.

[1022] P. 171, n. 5 above.

[1023] Livy i. 30. 7.

[1024] 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.

[1025] Cf. Dion. Hal. ix. 17. 2; 59. 4.

[1026] Livy iii. 1. 8.

[1027] Dion. Hal. ix. 36. 2 f.; x. 21. 8.

[1028] Livy ii. 39. 9 f.

[1029] Cf. Dion. Hal. ix. 17. 2, 4.

[1030] P. 351; cf. Rubino, _Röm. Verf._ 269 ff.

[1031] On the epoch-making rejection of the Caudine treaty of 321, see p.
171, n. 5. 376.

[1032] Suet. _Vesp._ 8; Rubino, ibid. 261.

[1033] Cf. Rubino, ibid. 260.

[1034] Ibid. 263.

[1035] Cf. i. 14. 6; 36. 1. Too much stress should not be laid on this
distinction, however, as the Romans always regarded their enemy as the
aggressor, and assumed that every war was undertaken for the redress of
grievances.

[1036] Livy i. 32.

[1037] Ibid. i. 32.

[1038] P. 1 f., 173. The formula is extremely ancient in origin, but it
must have undergone modifications in time, as is indicated by the word
prisci applied to the Latins. Possibly the reference to the populus
should be similarly explained.

[1039] P. 174.

[1040] Cf. Livy i. 22; 30. 3; 35. 7; 38. 4.

[1041] P. 230.

[1042] P. 171.

[1043] 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 importation of wine by the
Suevi (Caesar, _B. G._ iv. 2), which may have been an act of the kind.

[1044] _Il._ i. 238; ix. 98; _Od._ vi. 12.

[1045] Cic. _Rep._ v. 2. 3; Livy i. 19. 1.

[1046] Livy i. 19. 5; cf. 42. 4; Tac. _Ann._ iii. 26.

[1047] Livy i. 8. 1; Verg. _Aen._ i. 292 f.

[1048] Cic. _Rep._ ii. 10. 17; Livy i. 16.

[1049] On the legislation of the kings, see Voigt, in _Abhdl. d. sächs.
Gesellsch. d. Wiss._ vii (1879). 555 ff.

[1050] Livy ii. 1. 1.

[1051] 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.

[1052] Mommsen, _Röm. Staatsr._ ii. 11.

[1053] Mommsen, ibid. iii. 313; cf. Jenks, _History of Politics_, 89 f.

[1054] 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.

[1055] 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.

[1056] For ut rogas, see Livy vi. 38. 5; x. 8. 12. 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, _Röm. Staatsverf._ i. 1108,
n. 4; p. 467 below.

[1057] Lex may be related to lēgare, ligare, “to bind”; Brugmann,
_Grundriss_, I. i. 134; Corssen, _Aussprache_, i. 444; Herzog, _Röm.
Staatsverf._ i. 112, n. 1; Lange, _Röm. Alt._ 1. 315 (“bindende
Vorschrift”). Mommsen, _Röm. 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. θεσμός, Gesetz); cf. Kretschmer,
_Einleitung in die Geschichte der griech. Sprache_, 165; Schrader,
_Reallexikon_, 657; Christ, in _Sitzb. d. bayer. Akad. d. Wiss._ 1906.
215.

[1058] Cf. Corssen, _Aussprache_, i. 684.

[1059] Cf. Vaniček, _Etym. Wörterb._ 227; Herzog, ibid. i. 116, n. 3
(Rechtsetzen). Schrader, _Reallexikon_, 657, connecting ius with Avest.
yaoš, “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. 212 (ius = Skt. yōs). On the meaning, see further
Nettleship, _Contributions to Latin Lexicography_, 497; Clark, _Practical
Jurisprudence_, 16-20.

[1060] For the leges censoriae, see Mommsen, _Röm. Staatsr._ ii. 430.

[1061] Livy i. 26. 7: “Hac lege duumviri creati.”

[1062] On the legum dictio, see Serv. _in Aen._ iii. 89.

[1063] Examples of leges datae are the ordinances of the kings or of
extraordinary constitutive magistracies, as the triumviri rei publicae
constituendae, municipal laws and provincial regulations established by
Rome; cf. Mommsen, _Röm. Staatsr._ iii. 311 and notes.

[1064] 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 (condemnati) et execrati”; Gaius ii. 104; _CIL._ vi.
9404, 10235; Mommsen, _Röm. Staatsr._ iii. 310, n. 3; Lange, _Röm. Alt._
ii. 598 f.

[1065] 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.

[1066] E.g. the granting of the imperium to Pompey or the recall of
Cicero from exile; Gell. x. 20. 3.

[1067] Livy iv. 60. 9; cf. 58. 14.

[1068] Cato, _Orig._ iv. 13; n. 2 above.

[1069] Lange, _Röm. Alt._ ii. 598 f.; Herzog, _Röm. Staatsverf._ i. 111
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.

[1070] Cic. _Div._ ii. 35. 74: “Ut comitiorum vel in iudiciis populi vel
in iure legum vel in creandis magistratibus”; _Leg._ iii. 3. 10; 15. 33.
Iudicia populi practically disappeared, leaving comitia legum and comitia
magistratuum; idem, _Sest._ 51. 109; cf. Mommsen, _Röm. Staatsr._ iii.
326, n. 1.

[1071] 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, _Röm. Verf._ 356, n. 1; Mommsen,
_Röm. Staatsr._ iii. 159, n. 1, 309, n. 3.

[1072] Cf. Livy. ix. 34. 8-10.

[1073] _Dig._ i. 2. 2. 2.

[1074] Ascribed to Ancus Marcius by Livy (i. 32. 2) and Dionysius (iii.
36. 2 ff.), to Romulus and his successors by Pomponius (ibid.), but
destroyed in the Gallic conflagration (Livy vi. 1. 1).

[1075] Lange, _Röm. Alt._ 1. 314 f.; Voigt, in _Abhdl. d. sächs.
Gesellsch. d. Wiss._ vii (1879). 559; Schrader, _Reallexikon_, 657 f.

[1076] The sources uniformly represent the kings as acting alone in the
admission of individuals and of entire communities to citizenship. The
view of Mommsen, _Röm. Staatsr._ iii. 29, that the assembly coöperated
rests upon his theory of an original popular sovereignty and of an
original patrician state, neither of which has any basis in fact.

[1077] Cic. _Rep._ v. 2. 3; Livy 1. 38. 7; 44. 3; 56. 1 f.

[1078] Ibid. i. 43.

[1079] Ibid. i. 44. 1; cf. especially the summary condemnation and
execution of Mettius; 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.

[1080] Lange’s view (_Röm. 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. Mommsen’s hypothesis (_Röm. 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.

[1081] Schrader, _Reallexikon_, 662.

[1082] Greenidge, _Leg. Proced._ 298 f.

[1083] Cf. Livy i. 26. 8 ff.; Cic. _Mil._ 3. 7; Greenidge, _Leg. Proced._
8, 305 ff.

[1084] Cic. _Rep._ ii. 2. 4; 7. 13; Livy i. 13. 4.

[1085] I. 17. 11. Cicero (_Rep._ ii. 13. 25), however, supposes he was
elected by the people.

[1086] Cic. _Rep._ ii. 21. 37; Livy i. 41-6; Dion. Hal. iv. 8.

[1087] Livy i. 49. 3.

[1088] Cf. Mommsen, _Röm. Staatsr._ ii. 6 f.

[1089] Cf. Cic. _Rep._ ii. 13. 25; 17. 31; 18. 33; 20. 35; Livy i. 17.
10; 32. 1; 35. 1, 6; 46. 1; Jordan, _Könige im alt. Ital._ 25 ff.

[1090] Cf. Livy xxii. 35. 4.

[1091] Cic. _Rep._ ii. 13. 25 (Numa); 17. 31 (Tullus Hostilius); 18. 33
(Ancus Marcius); 20. 35 (Tarquinius Priscus).

[1092] The formula for the curiate law is unknown. Lange, _Röm. 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, _Röm. Staatsverf._ i. 111 f., further assumes that the law
contained the formula of treaty on which in his opinion the state rested,
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 tum 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 (1) 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.

[1093] 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 unnecessary. 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.

[1094] 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. 360.

[1095] Cic. _Leg. Agr._ ii. 11. 26: “Maiores de singulis magistratibus
bis vos sententiam ferre voluerunt. Nam cum centuriata lex censoribus
ferebatur, cum curiata ceteris patriciis magistratibus, tum iterum de
eisdem iudicabatur, ut esset reprehendendi potestas, si populum beneficii
sui paeniteret”; cf. 10. 26; _Rep._ ii. 13. 25.

[1096] _Röm. Verf._ 361 f., 379 f. For a summary of the various modern
views, see Nissen, _Beitr. zum röm. Staatsr._ 42-6.

[1097] P. 435.

[1098] It is not probable that an official could pass the law for a
colleague, the intention being that each higher magistrate should
personally propose and carry it for himself; cf. Mommsen, _Röm. Staatsr._
i. 610, n. 2.

[1099] _Leg. Agr._ ii. 10. 26: “Hoc inauditum et plane novum, ut ei
curiata lege magistratus detur, cui nullis comitiis ante sit datus.”

[1100] In Gell. xiii. 15. 4: “Magistratus ... iustus curiata datur lege.”

[1101] In Cic. _Leg. Agr._ ii. 11. 29: “Tum ii decemviri, inquit, eodem
iure sint, 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).

[1102] Plaut. _Most._ 713; Cic. _Off._ i. 31. 111; 42. 151; _Fin._ iv.
12. 31; _Rep._ iii. 17. 27; _Cat._ i. 9. 21; _Sest._ 43. 94; _Planc._ 36.
88; _Marc._ 1. 4; _Fam._ iii. 8. 6; _Att._ xv. 3. 2.

[1103] 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.

[1104] Fabius Pictor, in Gell. i. 12. 14: “Uti quae optima lege fuit, ita
te, Amata, capio.”

[1105] Cic. _Phil._ xi. 12. 30: “Senatui placere C. Cassium pro consule
provinciam optinere, ut qui optimo iure eam 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.”

[1106] Cic. _Har. Resp._ 7. 14 (reference is to the complete and perfect
title with which Cicero holds his dwelling); _Phil._ ix. 7. 17 (a burial
place granted by the state to a family with a perfect title); _Lex Agr._
(_CIL._ 200) 27: “_Is ager locus do_mneis privatus ita, utei quoi optuma
lege privatus est, esto.”

[1107] _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.” Optima lege refers to the perfection of
their right to the sacerdotal places (cf. 67 above), whereas optumo iure
seems to apply to the privileges and honors attaching to these positions.

[1108] 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 colonia est in
Italia tam bono iure, quod tam immune municipium, quod ... sit usum.”

[1109] _Lex Col. Gen._ 67, quoted in n. above.

[1110] Fest. 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.

[1111] See p. 186, n. 5.

[1112] As the _Lex Col. Gen._ 66 f.; p. 186, n. 1 above.

[1113] P. 186.

[1114] 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. _Fam._ ii. 10. 3 (iusta
victoria); Caes. _B. G._ i. 23 (iustum iter); Livy i. 4. 4 (iusti cursum
amnis); xxxix. 2. 8 (iusto proelio). When Cicero (_Red. in Sen._ 11.
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.
1. 5). It would be wrong, however, to suppose with Nissen, _Beitr. z.
röm. Staatsr._ 51, that he commanded on the sufferance only of his
soldiers.

[1115] Including the auspices; see n. above.

[1116] 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; Sall. _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. 17: “Omnes potestates, imperia, curationes 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 etiam homines P. Scipioni imperium esse in Hispania iusserunt;”
22. 15: “Centuriam vero iuniorum seniores consulere voluisse, quibus
imperium suffragio mandarunt.” For the tribal assembly, see T. Annius
Luscus, _Orat. 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. 11; 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 constituti”) 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
11. 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.

[1117] Cic. _Leg. Agr._ ii. 11. 27: “Curiatis eam (potestatem) comitiis
... confirmavit.”

[1118] Livy ix. 38 f.; Dion. Hal. v. 70. 4: Ὃν ἃν ἥ τε βουλὴ προέληται
καὶ ὁ δῆμος ἐπιψηφίσῃ. To avoid unnecessary delay the sanctioning act
was probably always kept free from the obligation of the promulgatio per
trinum nundinum; Livy iii. 27. 1; iv. 14. 1; p. 396 f. below.

[1119] 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 missing). 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, _Röm. Staatsr._ i. 372, n. 1, 613, n. 1.

[1120] In the opinion of Lange, _Röm. Alt._ i. 300 ff., the election
conferred potestas only, the lex curiata imperium.

[1121] Dio Cass. xxxix. 19. 3.

[1122] Ibid.; Cic. _Leg. Agr._ ii. 12. 30: “Consuli si legem curiatam
non habet, attingere 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.

[1123] Dio Cass. xli. 43. 3.

[1124] Cic. _Fam._ i. 9. 25.

[1125] Cic. _Att._ iv. 18. 4: “Appius sine lege suo sumptu in Ciliciam
cogitat.”

[1126] Ibid.

[1127] 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.

[1128] 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. 10, 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,
_Röm. Staatsr._ i. 616, asserts.

[1129] Livy ix. 39. 1.

[1130] Ibid. xxi. 63. 9; Varro, in Gell. xiv. 7. 9.

[1131] Rubino, _Röm. Verf._ 365 ff.

[1132] Mommsen, _Röm. Staatsr._ i. 612, n. 1.

[1133] Sall. _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 summum
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 possessed
the imperium is confirmed by Livy i. 17. 5 f., who informs us that the
imperium of an interrex lasted five days.

[1134] Livy ix. 38 f.

[1135] Cf. Nissen, _Beitr. z. röm. Staatsr._ 51 f.

[1136] XXI. 63. 5 ff.

[1137] Fest. 347. 14; p. 336 below.

[1138] Cf. Livy xxii. 1. 5 ff.

[1139] Nissen, ibid., supposes, too, that Appius Claudius, consul in 179,
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 reference to the curiate act.

[1140] Livy xxv. 37. 5 f.; cf. xxvi. 2. 1.

[1141] Ibid. xxvi. 2. 2.

[1142] 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. röm. Staatsr._ 53 f., says of these magistrates’ lack of
military imperium is therefore baseless.

[1143] Cic. _Att._ iv. 18. 4; _Q. Fr._ iii. 4. 6; Dio Cass. xxxvii. 47;
xxxix. 65. The praetor was Ser. Sulpicius Galba.

[1144] Cic. _Fam._ i. 9. 25; cf. _Q. Fr._ iii. 2. 3; p. 417 below.

[1145] Cic. _Fam._ i. 9. 25: “Appius ... dixit ... legem curiatam consuli
ferri opus esse, necesse non esse.”

[1146] Cic. _Att._ iv. 17. 2.

[1147] Cic. _Att._ iv. 17. 4; _Q. Fr._ iii. 3. 2; cf. p. 111 above.

[1148] Cic. _Att._ iv. 17. 3 ff.; 18. 3; _Q. Fr._ iii. 2. 3; 3. 2 f.

[1149] Cic. _Att._ iv. 17. 3.

[1150] 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 intimates 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 consular and pretorian elections in the Campus
Martius—all between sunrise and sunset on the same day; Livy xxii. 35. 4.

[1151] P. 192.

[1152] Dio Cass. xli. 43. 3. Livy, v. 52. 15, proves that the comitia
curiata could meet only within the pomerium.

[1153] Dio Cass. xli. 43. 2.

[1154] Cf. Livy v. 52. 15.

[1155] Dio Cass. xxxix. 19. 3. The date of the trial was Feb. 7, 56; Cic.
_Q. Fr._ ii. 3. 2.

[1156] _Lex Cornelia de XX Quaest._ 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.

[1157] 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.

[1158] Cic. Frag. A. vii. 48: “Itaque auspicato ... tr. pl. comitiis
curiatis creati sunt”; Dion. Hal. vi. 89. 1; ix. 41. 2; cf. Livy ii. 56.
2; p. 262 below.

[1159] V. 46. 10.

[1160] _Röm. Verf._ 381 and n. 2.

[1161] Based on his reading of Fest. 351. 34: “(Triginta lictoribus l)ex
curiata fertur; quod Hanni(bal in propinquitate) Romae cum esset, nec ex
praesidi(is discedere liceret), Q. Fabius Maximus Verru(cosus egit per
tr. pl. et Ma)rcellus cos. facere in(stituit.”...).

[1162] The attendance on the comitia tributa was sometimes as low as five
to the tribe; Cic. _Sest._ 51. 109.

[1163] Cic. _Leg. Agr._ ii. 7. 16 f.; in connection with the preceding
note and p. 127.

[1164] Mommsen’s restoration is, “(Transit imperium nec denuo l)ex
curiata fertur, quod Hanni(bal in vicinitate) Romae cum esset nec ex
praesidi(is tuto decedi posset), Q. Fabius Maximus Verru(cossus M.
Claudius Ma)rcellus cos. facere in(stituerunt)”; _Röm. Forsch_, ii. 412;
_Röm. Staatsr._ i. 613, n. 3. Bergk, _Rhein. Mus._ N. F. xix (1864).
606, with less success proposes translatione imperii; cf. also Herzog,
_Röm. Staatsverf._ i. 679. The passage is in fact past healing, though
Mommsen’s reconstruction is an improvement on Rubino’s.

[1165] The second inference is from the present tense of the verb
“fertur.”

[1166] Livy xxiv. 7-9.

[1167] Ibid. 9. 3.

[1168] Cf. Herzog, _Röm. 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, _Röm. Alt._ ii. 175, 704 f., who gives the measure
a wider constitutional scope, assumes that it was a plebiscite. Mommsen,
_Röm. 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, Mommsen 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.

[1169] Cf. Livy xxi. 63; xxii. 1.

[1170] 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.

[1171] Cic. _Att._ iv. 17. 2; cf. p. 113, 194, n. 2. The Ciceronian
passage, our only authority on this point, seems to imply a custom.

[1172] Cic. _Leg. Agr._ ii. 12. 30.

[1173] On the servility of the lictors, see Cic. _Verr._ ii. 29. 72;
_Pis._ 22. 53.

[1174] That the comitia curiata were no longer attended by the people in
the time of Cicero is attested by _Leg. Agr._ ii. 11. 27: “Curiatis ...
comitiis, quae vos non initis”; cf. n. 6.

[1175] _Leg. Agr._ ii. 11. 27. On the Aelian and Fufian statutes, see p.
116, 358 f.

[1176] Cic. _Leg. Agr._ ii. 12. 31: “Illis (comitiis) ad speciam atque ad
usurpationem vetustatis per ... lictores auspiciorum causa adumbratis.”

[1177] Cic. _Leg. Agr._ ii. 12. 30: “Consulibus legem curiatam ferentibus
a tribunis plebis saepe est intercessum”; cf. Dio Cass. xxxix. 19. 3.

[1178] Cic. _Leg. Agr._ ii. 11. 29; p. 227 above.

[1179] Cic. _Fam._ i. 9. 25; p. 193 above.

[1180] Herzog, _Röm. Staatsverf._ ii. 905.

[1181] This chapter historically follows ch. iv.

[1182] 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.

[1183] Cic. _Rep._ ii. 31. 53: “(Valerius Poplicola) legem ad populum
tulit eam, quae centuriatis 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 beginning
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, _Altröm. Volksversamml._ 264, has
given him too much credit.

[1184] An objection to the view represented by Soltau, ibid. 270-5, that
the coöperation of the army in the overthrow of Tarquin the Proud caused
its immediate transformation 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 information 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, _Röm. 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). 1.

[1185] Livy ix. 13. 1.

[1186] Livy vii. 16. 4.

[1187] Livy v. 28. 7; vii. 36. 9.

[1188] Livy viii. 31.

[1189] Ibid. 32. 1.

[1190] Livy viii. 32 f.

[1191] Livy x. 19. 11.

[1192] Livy vii. 36. 9.

[1193] Ibid. ch. 37, especially § 9.

[1194] Cic. _Fam._ xi. 13. 3; Livy vii. 37. 9. viii. 32. 1; ix. 13. 1; x.
19. 11; xxviii. 26. 12; xl. 36. 4; xlii. 53. 1; Dion. Hal. iii. 13. 1.

[1195] Livy vii. 35. 1 f.

[1196] Livy v. 46. 5 ff.

[1197] Livy vii. 16. 7; p. 297.

[1198] Livy xxvi. 2. 2 (211 B.C.). On the military contio, see also p.
140.

[1199] 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.”

[1200] Dion. Hal. vii. 59. 3: Συνῄει δὲ τὸ πλῆθος εἰς τὸ πρὸ τῆς πόλεως
Ἄρειον πεδίον ὑπὸ λοχαγοῖς καὶ σημείοις τεταγμένον ὥσπερ ἐν πολέμῳ; 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.

[1201] P. 104, 140 f., 244.

[1202] _Comm. Consular._ in Varro, _L. L._ vi. 88; Livy xxxix. 15. 11;
Laelius Felix, in Gell. xv. 27. 5; Fest. ep. 103; Macrob. _Sat._ i. 16.
15; Serv. _in Aen._ viii. 1. Mommsen, _Röm. 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.

[1203] IV. 84. 5.

[1204] Mommsen, _Röm. Staatsr._ iii. 216 and n. 3.

[1205] 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 hic magistrates
(quaestor) non potest exercitum urbanum convocare; censor, consul,
dictator, interrex potest, quod censor exercitum centuriato constituit
quinquennalem, 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. 11. 9.

[1206] Mommsen, _Röm. 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.
1; see n. below) has no bearing on the matter.

[1207] IV. 22, i: Κελεύσας τοὺς πολίτας ἅπαντας συνελθεῖν εἰς τὸ μέγιστον
τῶν πρὸ τῆς πόλεως πεδίων ἔχοντας τὰ ὅπλα καὶ τάξας τοὺς θ’ἱππεῖς κατὰ
τέλη καὶ τοὺς πεζοὺς ἐν φάλαγγι καὶ τοὺς ἐσταλμένους τὸν φιλικὸν ὁπλισμὸν
ἐν τοῖς ἰδίοις ἑκάστους λόχοις καθαρμὸν αὐτῶν ἐποιήσατο.

[1208] _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 huc ad me” (Mommsen’s reading, _Röm. Staatsr._ ii. 361, n.
6). Spengel reads, “Omnes quirites, (equites) pedites, magistratos
privatosque, curatores,” etc., in which armatos does not appear.

[1209] 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.

[1210] Cf. Livy xliii. 14. 8: “Censores edixerunt ... qui in patris aut
avi potestate 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. 11. 7.

[1211] Cic. _Leg._ iii. 3. 7; Dion. Hal. iv. 15. 6; v. 75. 3; Gell. iv.
20. 3 ff.

[1212] Notwithstanding Genz, _Centuriatverf._ 11; Lange, _Röm. Alt._ i.
477.

[1213] 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, _Altröm. Volksversamml._ 337.

[1214] Polyb. vi. 19. 2.

[1215] The five classes contained accordingly 80, 20, 20, 20, and 28
centuries respectively; cf. p. 66 f., 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 centuries in the highest
class. Cicero (_Rep._ ii. 22. 39: “Nunc rationem videtis esse talem, ut
equitum centuriae cum sex suffragiis et prima classis addita centuria,
quae ad summum usum urbis fabris tignariis est data, LXXXVIIII centurias
habebat”) 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.

[1216] P. 68.

[1217] The two are mentioned by Livy i. 43. 3 and Dion. Hal. iv.
17. 3; vii. 59. 4. Pliny, _N. H._ xxxiv. 1. 1, 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, _Rep._ 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.

[1218] Plut. _Num._ 17; also n. above.

[1219] I. 43. 3.

[1220] _Rep._ ii. 22. 39; cf. n. 2 above.

[1221] IV. 17. 3.

[1222] Cf. Smith, _Röm. Timokr._ 91 f. with citations.

[1223] Cic. _Rep._ 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.

[1224] Plut. _Num._ 17, speaks of only one guild of musicians, the
pipers. But the cornicines 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.

[1225] P. 68, 80.

[1226] _Röm. Trib._ 137, accepted by Genz, _Centurienverf._ 3, 8; Soltau,
_Altröm. Volksversamml._ 254, 317, 520, n. 1. Huschke, _Verf. d. Serv._
172, assumes ten and includes them in the fifth class. Lange, _Röm.
Alt._ i. 471, supposes the accensi to have included the entire fifth
class, which in his opinion was not instituted till the beginning of the
republic.

[1227] I. 43. 7.

[1228] _Rep._ ii. 22. 40: “Quin etiam accensis velatis, liticinibus,
cornicinibus, proletariis.”

[1229] _CIL._ vi. 9219: “Praef(ectus) c(enturiae) a(ccensorum)
v(elatorum)”; cf. Mommsen, _Röm. Staatsr._ iii. p. xi, n. 1; Ulpian,
_Vat. Frag._ 138, mentions the privileges of this century. A decuria of
the accensi velati is referred to by _CIL._ vi. 1973; cf. Kubitschek, in
Pauly-Wissowa, _Real-Encycl._ i. 136.

[1230] Cf. Mommsen, _Röm. Staatsr._ iii. 282; Kubitschek, in
Pauly-Wissowa, _Real-Encycl._ i. 135 ff.; Domazewski, ibid. iii. 1953 f.

[1231] P. 68.

[1232] _XII Tables_, in Gell. xvi. 10. 5: “Adsiduo vindex adsiduus esto.
Proletario iam civi, cui, quis volet, vindex esto.”

[1233] Livy i. 43. 8; Dion. Hal. iv. 18. 2; Ennius, in Gell. xvi. 10. 1.

[1234] IV. 18. 2.

[1235] 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 (_Röm. Staatsr._ iii.
237 f., 285 f.) to rule this century out of existence has failed,
notwithstanding the approval of some recent writers, as Domazewski, in
Pauly-Wissowa, _Real-Encycl._ iii. 1953. Cf. Kübler, ibid. iii. 1521 ff.

[1236] IV. 17. 2; vii. 59. 3.

[1237] Cf. Livy i. 43. 10.

[1238] Cf. p. 66, 77, n. 2.

[1239] P. 77 and n. 2.

[1240] 177. 21: “‘Niquis scivit’ centuria est, quae dicitur a Ser. Tullio
rege constituta, 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.”

[1241] As does Mommsen, _Röm. Staatsr._ iii. 285 f.

[1242] This view accords best with the words of Livy i. 43. 7: “In his
accensi, cornicines tubicinesque, in tres centurias distributi” (they
were reckoned among the thirty).

[1243] Accepted by Huschke, _Verf. d. Serv._ 152, but rejected by
Mommsen, _Röm. Staatsr._ iii. 283, n. 1.

[1244] P. 7, 62, 74 ff. 93, 96.

[1245] Cic. _Rep._ ii. 22. 39: “Equitum centuriae cum sex suffragiis”;
Fest. 334. 29. Cic. _Phil._ ii. 33. 82, is uncertain.

[1246] Cic. _Rep._ ii. 22. 39 (n. above); Livy i. 36. 7; 43. 9.

[1247] P. 62, 93.

[1248] P. 93.

[1249] 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. 1. 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.

[1250] P. 94.

[1251] P. 96.

[1252] Livy viii. 8, while describing the manipular arrangement under
the year 340, assigns the beginning of it to the time of Camillus,
considering it due to the introduction of pay; Plut. _Cam._ 40
(for change of armor at time of Camillus); cf. Soltau, _Altröm.
Volksversamml._ 278; Marquardt, _Röm. Staatsv._ ii. 332 f.; Delbrück,
_Gesch. d. Kriegsk._ i. 235.

[1253] Dion. Hal. vii. 59. 3 (p. 203, n. 2). There seems to be no reason
for doubting this statement; cf. Herzog, _Röm. Staatsverf._ i. 1100.

[1254] P. 157 b.

[1255] Lange, _Röm. Alt._ i. 563. His citations, however (Fest. 177. 27;
Cic. _Orat._ ii. 64. 260), do not prove the point; Herzog, ibid.

[1256] Dion. Hal. iv. 21. 1; x. 17.

[1257] Livy i. 43. 11; Dion. Hal. iv. 20. 3-5; vii. 59. 3-8; x. 17. 3.
On the prerogative equestrian centuries, see Livy i. 43. 8; v. 18. 1:
“Praerogativa ... creant” (corrupt text); x. 22. 1: “Praerogativae et
primo vocatae centuriae ... dicebant”; Fest. 249. 7.

[1258] Cic. _Planc._ 20. 49; _Q. Fr._ ii. 14. 4; _Div._ i. 45. 103; Fest.
ibid.

[1259] Ch. iv.

[1260] P. 64, 86 f.

[1261] P. 86 f.

[1262] 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 Müller (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, Plüss, _Centurienverf._ 10 ff.; Lange, _Röm. Alt._ ii. 496.
Here, as often elsewhere, Ullrich, _Centuriatcom._ 14, is wrong. But it
is impossible to prove or to disprove anything by the emendation of such
a passage.

[1263] VI. 21. 5: “Omnes tribus bellum iusserunt.” As the tribal assembly
did not declare war, this passage must refer to the reformed comitia
(Lange, ibid.; Plüss, 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.

[1264] In fact some scholars have assigned the reform to the decemvirs,
451; cf. Peter, _Epoch. d. Verfassungsgesch._ 75; Soltau, _Altröm.
Volksversamml._ 361 ff.

[1265] P. 77 f., 214.

[1266] X. 22. 1: “Eumque et praerogativae et primo vocatae omnes
centuriae.” Praerogativae 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 e be dropped from this adjective,
the sentence would still read correctly.

[1267] P. 57 f., 66 f., 86 f.

[1268] I. 43. 12.

[1269] Cf. xxiv. 7. 12 (215 B.C.): “Eo die cum sors praerogativae Aniensi
iuniorum exisset”; 9. 3: “Praerogativae suffragium iniit ... eosdem
consules ceterae centuriae ... dixerunt”; xxvi. 22. 2 f.; xxvii. 6. 3.

[1270] Livy xl. 51 is evidence that the censors had power to make changes
as extensive as these.

[1271] Mommsen, _Röm. Trib._ 108, preferred Fabius, and his view has
been accepted by Lange, _Röm. Alt._ ii. 499; Herzog, _Röm. Staatsverf._
i. 326; Kübler, in Pauly-Wissowa, _Real-Encycl._ iii. 1956; Le Tellier,
_Organ. cent._ 75; Willems, _Droit public Röm._ 93; Karlowa, _Röm.
Rechtsgesch._ i. 384; and others. But in his _Staatsr._ iii. 254, n.
4, 270, n. 3, following Göttling, _Gesch. d. röm. Staatsverf._ 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 (Sall. _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.

[1272] II. 21.

[1273] XXI. 63; cf. Kübler, in Pauly-Wissowa, _Real-Encycl._ iii. 1956.

[1274] Lange, _Röm. Alt._ ii. 499; Plüss, _Centurienverf._ 10; Le
Tellier, _Organ. cent._ 73 ff.

[1275] Guiraud, in _Rev. hist._ xvii (1881). 7.

[1276] I. 43. 12: “Nec mirari oportet hunc ordinem, qui nunc est post
expletas quinque 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).

[1277] IV. 21. 3: Οὑτος ὁ κόσμος τοῦ πολιτεύματος ἐπὶ πολλὰς διέμεινε
γενεὰς φυλαττόμενος ὑπὸ Ῥωμαίον· ἐν δὲ τοῖς καθ’ ἡμᾶς κεκίνηται χρόνοις
καὶ μεταβέβληκεν εἰς τὸ δημοτικώτερον, ἀνάγκαις τισὶ βιασθεὶς ἰσχυραῖς,
οὐ τῶν λόχον καταλυθέντων, ἀλλὰ τῆς κρίσεως (or κλήσεως) αὐτῶν οὐκέτι τὴν
ἀρχαίαν ἀκρίβειαν φυλαττούσης, ὡς ἐγνων ταῖς ἀρχαιρεσίαις αὐτῶν πολλάκις
παρών. (After this arrangement had continued many generations, carefully
preserved by the Romans, it has assumed in our time a 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 κρίσεως, supported by most MSS., is retained, it should refer to the
equalization of power among the classes; κλῆσεως would probably mean that
the prerogative century was now drawn by lot.

[1278] P. 77 f.

[1279] _Röm. 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 considered a mistake; p. 67, 205, n. 5.

[1280] P. 213, n. 5.

[1281] Ihne, _Hist. of Rome_, iv. 12, concludes that the change was
gradual. The line of development suggested by Plüss, _Centurienverf._,
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.

[1282] The citations below refer to a plurality of classes for the
period following the reform, without mentioning a definite number; Sall.
_Iug._ 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 between
the classici and those who were infra classem, from which we may conclude
that the distinction existed in his time. The agrarian law of 111 (_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 (_Centuriatcom._), resting on these passages, is that there were
but two classes, one of seniors another of juniors. Besides involving
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. Sall. _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.
1; 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.

[1283] To the time of Marius the soldiers were still drawn from the
census classes; Polyb. vi. 19. 2; Sall. _Iug._ 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 111 (_CIL._ i. 200. 37) implies a property
qualification of the class mentioned (note above). These citations
dispose of the hypothesis of Plüss, _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.

[1284] Cic. _Phil._ ii. 33. 82; Livy xliii. 16. 14; Pseud. Sall. _Rep.
Ord._ 2. 8; Val. Max. vi. 5. 3; (Aurel. Vict.) _Vir. Ill._ 57. 3.

[1285] 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. 11; _Leg._ iii. 3. 7; Horace, _Ars
Poet._ 341: “Centuriae seniorum agitant expertia frugis.”

[1286] Varro, _L. L._ vii. 42; Cic. _Flacc._ 7. 15; _Sull._ 32. 91; _Tog.
Cand._ in Ascon. 85; _Red. in Sen._ 11. 27; _Imp. Pomp._ 1. 2; _Brut._
67. 237; _Orat._ ii. 64. 260; Ascon. 16, 95; Pseud. Sall. _Rep. Ord._
2. 8; Livy i. 43. 12 f.; xxvi. 18. 9; 22. 4, 8, 10, 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.

[1287] I. 43. 12 f. “Nec 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 divisa ... partes eas tribus appellavit
... neque eae tribus ad centuriarum distributionem numerumque quicquam
pertinuere.”

[1288] Livy xxiv. 7. 12.

[1289] Livy xxvi. 22. 2 f.

[1290] Livy xxvii. 6. 3.

[1291] Voting or the announcement of the votes according to tribes
is indicated by Polyb. vi. 14. 7: Τοῖς γὰρ θανάτου κρινομένοις, ἐπὰν
καταδικάζωνται δίδωσι τὴν ἐξουσίαν τὸ παρ’ αὐτοῖς ἔθος ἀπαλλάττεσθαι
φανερῶς, κἂν ἔτι μία λείπηται φυλὴ τῶν ἐπικυρουσῶν τὴν κρίσιν ἀψηφόρητος,
ἑκούσιον ἑαυτοῦ κατγνόντα φυγαδείαν. (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 _Zeitschr. d. Savignyst._
xii (1892). 220; Plüss, _Centurienverf._ 14. See 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 Romani consulem declaravit.” The MSS. have tribus
and there is nothing against it, though Müller, 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.

[1292] Cic. _Planc._ 20. 49: “Unius tribus pars” (i.e. the prerogative
century); Pseudacr. Schol. Cruq. ad Hor. _Poet._ 341: “Singulae tribus
certas habebant centurias 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. 17 f.; 8. 32; Mommsen, _Röm. 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, _Röm. Staatsr._ iii. 274, has
therefore failed in his attempt to limit to the first class the division
of the tribes into centuries.

[1293] _Röm. Gesch._ iii. 382 f., followed by Plüss, _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.

[1294] P. 216.

[1295] Niebuhr, ibid. His authorities for the two classes are Livy xliii.
16. 14: “Cum ex duodecim centuriis equitum octo censorem condemnassent
multaeque aliae primae classis”; Cic. _Phil._ ii. 33. 82: “Prima classis
vocatur, renuntiatur; deinde, ita ut adsolet, suffragia; tum 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 advanced 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 habeantur”; § 81). Confecto negotio, equivalent to comitiis
habitis, is the negative of priusquam habeantur. This interpretation
deprives the theory of two classes, held by Niebuhr, Ullrich, and others,
of its only support.

[1296] P. 216, n. 1.

[1297] P. 216, n. 2.

[1298] _Verf. des Serv._ 623.

[1299] Ibid. 617 ff.

[1300] Ibid. 634. Similar is the view of Plüss, _Centurienverf._ 36 ff.,
80, that for the period 179-86 the classes were groups of tribes based
partly on the census and partly on social rank.

[1301] P. 216, n. 3. The long-known hypothesis here mentioned was
sufficiently refuted by Huschke, ibid. 619 ff., but has been more
recently revived by Madvig, _Röm. Staat._ i. 117 ff., who, however, so
develops it as to make the five classes voting divisions of the century.
This notion is controverted by Genz, _Centuriatcom. nach der Ref._, and
defended without success by Gerathewohl, _Reit. und Rittercent._ 90 f.

[1302] This result is in fact suggested by the passage in Livy 1. 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.

[1303] P. 217.

[1304] P. 218, n. 1.

[1305] P. 216, n. 3.

[1306] ¶ above.

[1307] P. 216, n. 4.

[1308] 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 a 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
Schriften_, i. 1 ff.; Mommsen, _Röm. Trib._; Genz, _Centuriatcom. nach
der Ref._; Ihne, _Hist. of Rome_, iv. 15; Herzog, _Röm. Staatsverf._ i.
324; Klebs, in _Zeitschr. d. Savignyst._ xii (1892). 181-244; Schiller,
_Röm. Alt._ 633; Kübler, in Pauly-Wissowa, _Real-Encycl._ iii. 1956
ff.; Greenidge, _Rom. Publ. Life_, 253; Le Tellier, _Organ. cent._ 89
ff.; Göttling, _Gesch. der röm. Staatsverf._ 383; Peter, _Epoch. d.
Verfassungsgesch._ 75; Morlot, _Comices élect._ 85 ff.

[1309] _CIL._ vi. 196-8, 1104, 10097, 10214-8; _Inscr. bull. della comm.
di Roma_, 1885. 161; _Notizie degli Scavi_, 1887. 191.

[1310] 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.

[1311] III. 274 ff.; cf. his _History of Rome_ (Eng. ed. 1900), iii. 52 f.

[1312] II. 22.

[1313] _Röm. Staatsr._ iii. 274 with notes; cf. Guiraud, in _Rev. hist._
xvii (1881). 16.

[1314] _Rep._ ii. 22. 39: “Quae discriptio, si esset ignota vobis,
explicaretur a me; nunc rationem videtis esse talem.”

[1315] Seventy in Cicero’s description, eighty according to the
annalists; p. 67 f., 205, n. 5.

[1316] 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.

[1317] To Soltau, _Jahrb. f. cl. Philol._ xli (1895). 411, n. 3, this
explanation seems “too cheap.”

[1318] In the clause “Ut equitum centuriae cum sex suffrages 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 quattuor centuriis (tot enim reliquae sunt)
octo solae accesserunt,” the word on Mommsen’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.

[1319] 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, 2½, 2½, 5 centuries for the four classes respectively. This
combination would be as undemocratic and as impracticable as any of those
proposed by Klebs.

[1320] Klebs, ibid. 187.

[1321] P. 214, n. 6.

[1322] I. 43. 12.

[1323] P. 220.

[1324] P. 217.

[1325] P. 216, n. 3. Soltau’s modifications, _Jahrb. f. Philol._ xli
(1895). 410-4, of Mommsen’s hypothesis are no improvement on the original.

[1326] _Röm. Alt._ ii. 510 ff.

[1327] 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.

[1328] Lange, _Röm. Alt._ ii. 526.

[1329] Livy xliii. 16. 14 (171 B.C.): “Cum ex duodecim centuriis equitum
octo censorem condemnassent multaeque aliae primae classis, extemplo
principes civitatis ... vestem mutarunt.” This proves that the votes were
made public early in 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 passages. 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.

[1330] Cf. Gerathewohl, _Reit. und Rittercent._ 90, n. 2.

[1331] As authority for the six votes of the eighteen equestrian
centuries Lange cites Cic. _Rep._ ii. 22. 39: “Equitum centuriae cum sex
suffrages”; _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.

[1332] All 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. 1. 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.

[1333] In _Zeitschr. d. Savignyst._ xii (1892). 230 ff.

[1334] 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.

[1335] _Orat._ 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.

[1336] Plut. _Num._ 17; Pliny, _N. H._ xxxiv. 1. 1.

[1337] 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.”

[1338] P. 207, n. 1.

[1339] See citations in Olcott, _Thes. ling. lat. ep._ i. 51.

[1340] P. 208 f.

[1341] That these supernumerary centuries were abolished at the time
of the reform is argued by Huschke, _Verf. des. Serv._ 622 f.; Plüss,
_Centurienverf._ 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, _Röm. Staatsr._ iii. 281 ff.; Lange,
_Röm. Alt._ ii. 512; Le Tellier, _Organ. cent._ 90.

[1342] P. 220 f.

[1343] The supposed Sullan reaction to the earlier form of the centuriate
comitia is not well founded; p. 406.

[1344] P. 212.

[1345] P. 217. This is a necessary inference from the term used to
describe a prerogative 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 secundae classis.

[1346] Cic. _Phil._ ii. 33. 82.

[1347] Livy xliii. 16. 14: “Cum ex duodecim centuriis equitum octo
censorem condemnassent 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 praerogativae; quiescit.
Renuntiatur; tacet. Prima classis vocatur, renuntiatur; deinde, ita ut
adsolet, suffragia; tum 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 indicates 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 centuriate 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 Ciceronian passage. The attempt of Holzapfel, in _Beiträge zur
alten Gesch._ i (1902). 254 f., is unsuccessful. Klebs, in _Zeitschr. d.
Savignyst._ xii (1892). 237 ff., fruitlessly opposes the division of the
equites into these two groups.

[1348] P. 74 f., 95 f., 209 f.

[1349] P. 211, 467, 469.

[1350] P. 201, n. 2.

[1351] The idea that Servius Tullius gave this assembly the right to
elect kings (Dion. Hal. v. 12. 3; Lange, _Röm. Alt._ i. 458; ii. 531) is
proved wrong by the circumstance that the organization attributed to him
was purely military, from which the comitia centuriata slowly developed;
p. 203 ff.

[1352] Lange, _Röm. Alt._ ii. 531. On the number of praetors, see
Mommsen, _Röm. 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.

[1353] P. 331.

[1354] Cic. _Brut._ 14. 55; cf. Lange, _Röm. Alt._ i. 409; ii. 115, 532.

[1355] On the centuriate elective function in general, see Lange, ibid.
ii. 531-3. Willems, _Sén. Röm._ ii. 69 ff., contends unconvincingly that
the Maenian statute should be assigned to 338.

[1356] P. 177.

[1357] P. 181 f.

[1358] P. 177.

[1359] P. 177.

[1360] P. 202 f.; cf. Lange, _Röm. Alt._ ii. 599 f.

[1361] Dion. Hal. viii. 15. 3.

[1362] VIII. 91. 4.

[1363] IX. 69. 2.

[1364] Livy iv. 30. 15.

[1365] 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).

[1366] Livy vii. 20. 3.

[1367] Livy viii. 22. 8 (327); 25. 2 with Dion. Hal. xv. 14 (326); Livy
viii. 29. 6 (325); 43. 2 (306); 45. 8 (304); x. 12. 3 (298); 45. 6 f.
(293).

[1368] Polyb. i. 11.

[1369] Dio Cass. Frag. 49. 5; Zon. viii. 19. 4.

[1370] Livy xxi. 17. 4.

[1371] Livy xxxi. 5-8; especially 6. 1, 3; 7. 1.

[1372] Livy xxxvi. 1. 4 f.; 2. 2 f.

[1373] Livy xlii. 30. 10 f.; 36. 2.

[1374] Oros. v. 15. 1: “Consensu populi.”

[1375] Livy xxxi. 6. 3; 7. 1; xlii. 30. 10; cf. 36. 1.

[1376] Livy xlv. 21; Polyb. xxx. 4. 4 ff.

[1377] Livy xxxviii. 42. 11; 45. 4 ff.

[1378] Livy xxxviii. 50. 3.

[1379] Livy xli. 6; 7. 8; cf. Mommsen, _Röm. Staatsr._ ii. 320, n. 3.

[1380] 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, _Iber._ 80-82; Livy, ep. lvi;
Oros. v. 5. 14.

[1381] Livy iv. 58. 14.

[1382] This is the Macedonian war beginning in 200; p. 231; cf. Lange,
_Röm. Alt._ ii. 602.

[1383] P. 176; Gell. xvi. 4. 1; Livy xxxvi. 2. 2.

[1384] Dio Cass. xxxviii. 41. 1 ff.; Cic. _Pis._ 21. 48 f.

[1385] E.g., the act which recalled Camillus from exile; Livy v. 46. 10;
xxii. 14. 11; Cic. _Dom._ 32. 86.

[1386] P. 181 f.

[1387] P. 201, 240.

[1388] Livy iii. 55. 4; Cic. _Rep._ ii. 31. 54.

[1389] Livy x. 9. 5; cf. p. 242 below.

[1390] P. 250 f. 349.

[1391] P. 270 f.

[1392] P. 272.

[1393] P. 269.

[1394] Fest. 237. 17; Lange, _Röm. Alt._ i. 622; ii. 603. The contents
are unknown.

[1395] 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 l’authenticité
des XII Tables et les annales maximi_; _L’histoire traditionelle des XII
Tables et les critères d’inauthenticité des traditions en usage dans
l’école de Mommsen_ in _Mélanges Ch. Appleton_, 503-626; _La fonction
du droit civil comparé_, 390-718; _Le problème de l’origine des XII
Tables_, in _Revue générale 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. ü. Altwiss._ cxxxiv
(1907). 17 ff.

According to Diod. xii. 26. 1, the last two tables were drawn up by
Valerius and Horatius, consuls in 449.

[1396] Livy ii. 18. 5; Dion. Hal. v. 70. 5; Lange, _Röm. Alt._ i. 585;
ii. 603. Dion. Hal. vi. 90. 2, assumes the enactment of a statute for the
creation of the plebeian tribunate, 494.

[1397] Livy iii. 33. 4; Dion. Hal. x. 55. 3 (cf. p. 273).

[1398] 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.

[1399] P. 274 ff.

[1400] P. 287.

[1401] Livy vii. 5. 9; Sall. _Iug._ 63; Cic. _Cluent._ 54. 148; _Leg._
iii. 3. 6; Lange, _Röm. 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.

[1402] P. 299 f.

[1403] P. 233, 241 f.

[1404] P. 313.

[1405] Livy iv. 6. 8. A law is not mentioned but must be inferred; Lange,
_Röm. Alt._ i. 650; ii. 603.

[1406] 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. Aemilius cut down the term of the censors to eighteen
months; Livy iv. 24. 5 f.; ix. 33. 6; ch. 34.

[1407] Livy iv. 43; Tac. _Ann._ xi. 22; cf. Lange, ibid. i. 666.

[1408] Livy vi. 42. 11.

[1409] 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, _Röm. Alt._ i. 476, 479.

[1410] Livy vii. 41. 4.

[1411] Appian, _Samn._ i. 3; cf. p. 298.

[1412] P. 238.

[1413] 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.

[1414] The view maintained by Willems, _Sén. 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 importance for the period only from about 400 to
339.

[1415] Lange, _Röm. Alt._ ii. 605 f.

[1416] P. 412.

[1417] Lange, _Röm. Alt._ i. 553; ii. 606.

[1418] _Leg. Agr._ iii. 2. 5; cf. _Leg._ i. 15. 42; _Rosc. Am._ 43. 125;
Schol. Gron. 435; Appian, _B. C._ i. 98. 458 ff.; Plut. _Sull._ 33.

[1419] Cic. _Dom._ 30. 79; _Caecin._ 33. 95; 35. 102.

[1420] P. 416, n. 1.

[1421] Cic. _Phil._ i. 8. 19 obscurely suggests that these two laws were
centuriate, though Lange, _Röm. Alt._ ii. 606, doubts it; cf. p. 455.

[1422] Cf. Appian, _B. C._ iii. 30. 117.

[1423] Cic. _Phil._ x. 8. 17; xiii. 15. 31; cf. v. 19. 53.

[1424] Cic. _Leg. Agr._ ii. 11. 26: “Centuriata lex censoribus ferebatur.”

[1425] P. 185. Before the institution of the censorship the original
motive of the sanctioning 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.

[1426] Livy iv. 24. 3 ff.; cf. ix. 33 f.

[1427] 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, _Röm. Staatsr._ ii. 340, n. 2. It was not till 131
that advantage was taken of the provision; Livy, ep. lix. Herzog, _Röm.
Staatswerf._ i. 257, refuses to believe that both censors might now be
plebeian.

[1428] Livy vi. 35. 5. The provision that “at least” one should be
plebeian is doubtless an anticipation of the Genucian law.

[1429] Livy vii. 42. 2; cf. p. 299.

[1430] 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.

[1431] Livy ii. 41; Dion Hal. viii. 71, 73 ff.

[1432] Livy iii. 31. 1. In 32. 7 he calls it the Icilian law with the
idea that it was tribunician; 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, _Röm. Staatsverf._ i. 169, n. 1. Lange,
_Röm. Alt._ i. 619; ii. 607 f., wrongly asserts that it was a plebiscite;
cf. p. 272 below.

[1433] P. 234 f., 298.

[1434] Macrob. _Sat._ i. 13. 21.

[1435] Livy vii. 3. 5.

[1436] Lange, _Röm. Alt._ ii. 608 f.

[1437] Lange, _Röm. Alt._ ii. 541, and note on earlier literature;
Mommsen, _Röm. Staatsr._ i. 148 f., 160 f.; iii. 353.

[1438] 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.

[1439] 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.

[1440] Cf. Fest. 297. 11-24; Cic. _Mil._ 3. 7; _Rep._ ii. 31. 54; Livy i.
26.

[1441] Dion. Hal. iv. 25. 2; Livy i. 26. 5; Mommsen, _Röm. Staatsr._ ii.
11; _Röm. Strafr._ 474.

[1442] For the earlier literature on the ius provocationis, see Lange,
_Röm. Alt._ ii. 542, n.

[1443] Cic. _Rep._ i. 40. 62; ii. 31. 53: “Legem ad populum tulit eam,
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.; iii. 33. 9 f.; Val. Max. iv. 1. 1; Plut. _Popl._
11; Pomponius, in _Dig._ i. 2. 2. 16; Dion. Hal. v. 19. 4; cf. Ihne, in
_Rhein. Mus._ xxi (1866). 168.

[1444] Cic. _Rep._ ii. 31. 54; Livy iii. 55. 4; x. 9. 3-6; cf. Pais,
_Storia di Roma_, I. i. 489.

[1445] 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.”

[1446] Greenidge, _Leg. Proced._ 311. Varro, _L. L._ vi. 68: “Quiritare
dicitur is qui quiritium fidem clamans implorat”; cf. Cic. _Fam._ 32. 3;
Livy ii. 55. 5 f.; iv. 14 f.

[1447] Ihne, in _Rhein. Mus._ xxi (1886). 165 ff. 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 condemnation and death (Livy ii. 41; iv. 15.
4; Dion. Hal. viii. 77 f.; ix. 1. 1; 3. 2; 51. 2; x. 38. 3; Diod. xi. 37.
7; Cic. _Rep._ ii. 35. 60; Flor. i. 26. 7), and that of the plebeian M.
Volscius Fictor for false testimony; Livy iii. 25. 2 f.

[1448] Cic. _Rep._ ii. 31. 54, quoted p. 240, n. 6. The statement of
Cicero is too general; Greenidge, _Leg. Proced._ 312.

[1449] Cic. _Leg._ iii. 4. 11: “De capite civis Romani nisi per maximum
comitiatum ollosque, 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 centuriatis”; cf. _Rep._ ii. 36.
61; Plaut. _Pseud._ 1232; Mommsen, _Röm. Staatsr._ ii. 578; Karlowa,
_Röm. Rechtsgesch._ i. 409; Greenidge, _Leg. Proced._ 317; p. 268.

[1450] Cic. _Rep._ ii. 31. 54; Livy iii. 55. 4; cf. Mommsen, _Röm.
Staatsr._ iii. 352, n. 2; Lange, _Röm. Alt._ i. 638; ii. 551; Greenidge,
_Leg. Proced._ 318.

[1451] Livy iii. 55. 14; cf. 54. 15.

[1452] Livy iv. 13. 11 f.; vi. 16. 3 (385); vii. 4. 2 (362); viii. 33-35
(325; see p. 242, n. 5); Mommsen, _Röm. Staatsr._ ii. 164 f. with notes;
_Röm. Strafr._ 476; Greenidge, _Leg. Proced._ 318; cf. p. 242.

[1453] Livy x. 9. 4.

[1454] Livy iii. 20. 7; Mommsen, _Röm. Staatsr._ i. 66 f.; iii. 352.

[1455] Lange, _Röm. Alt._ ii. 543; Mommsen, ibid.

[1456] Livy x. 9. 5: “Improbe factum.” This denunciation might involve
penal consequences according to Greenidge, _Leg. Proced._ 319 f. Mommsen,
_Röm. 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, _Röm.
Rechtsgesch._ i. 429.

[1457] 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, _Röm. Staatsr._ ii.
163, n. 1; Lange, _Röm. Alt._ i. 756 f.

[1458] 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. 1 f.; Mommsen, _Röm. Staatsr._ i. 277.

[1459] Livy iii. 24. 7; 25. 2; 29. 6; Lange, _Röm. Alt._ i. 840; ii. 544.

[1460] 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 dictatorship 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, _Röm. 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 magister 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.”

[1461] Mommsen, _Röm. Staatsr._ ii. 165; Greenidge, _Leg. Proced._ 319.

[1462] Cic. _Leg._ iii. 3. 6; Livy ii. 29. 4: “Ab lictore nihil aliud
quam prendere prohibito”; ii. 55. 5; Dion. Hal. vi. 24. 2.

[1463] Livy i. 26. 5: “Duumviros ... qui ... perduellionem iudicent
secundum legem facio”; § 7: “Hac lege duumviri creati”; vi. 20. 12: “Sunt
qui per duumviros, qui de perduellione anquirerent creatos auctores sint
damnatum.” Creare applies to appointments though less commonly than to
elections; cf. Livy ii. 18. 4 f.; 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.

[1464] Livy i. 26; Fest. 297. 11.

[1465] _Dig._ xlviii. 4. 11: “Qui perduellionis reus est, hostili animo
aduersus rem publicam uel principem animatus”; cf. Greenidge, _Leg.
Proced._ 303.

[1466] Livy vi. 20. 12; see n. 1 above.

[1467] Ibid. vi. 19. 6 ff.

[1468] Cf. Ihne, in _Rhein. Mus._ xxi (1866). 177.

[1469] P. 258.

[1470] 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. 1. The procedure in the
trial of C. Rabirius was in this respect similar; a law compelling the
praetor to appoint duumviri is suggested by Cic. _Rab. Perd._ 4. 12.

[1471] 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.”

[1472] Livy i. 26. 5; Pomponius, in _Dig._ i. 2. 2. 16; Cic. _Leg._ iii.
12. 27; Lange, _Röm. Alt._ ii. 544; Mommsen, _Röm. Staatsr._ ii. 617 f.

[1473] P. 104.

[1474] Greenidge, _Leg. Proced._ 303-5.

[1475] Cic. _Rep._ ii. 35. 60; Livy ii. 41. 11; Dion. Hal. viii. 77. 1;
cf. Greenidge, _Leg. Proced._ 309.

[1476] _Röm. Alt._ i. 610; ii. 545.

[1477] Cf. the trial of Horatius for murder by the duumviri perduellioni
iudicandae; p. 243.

[1478] Livy ii. 41. 10.

[1479] Livy iii. 24. 3; 25. 2.

[1480] Pomponius, in _Dig._ i. 2. 2. 23: “Quia ... de capite civis Romani
iniussu populi non erat lege permissum consulibus ius dicere, propterea
quaestores constituebantur a populo, qui capitalibus rebus praeessent:
his appellabantur quaestores parricidii, quorum etiam meminit lex
Duodecim Tabularum”; cf. Fest. 258. 29; ep. 221.

[1481] Pliny _N. H._ xxxiv. 4. 13: “Camillo inter crimina obiecerit
Sp. Carvilius quaestor, quod aerata ostia haberet in domo.” According
to Livy v. 23. 11; 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
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 apparently as prosecutor, not simply as witness
(Lange, _Röm. 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.

[1482] Varro, _L. L._ 90-92 (mutilated excerpts from the record of this
trial, preserved in the _Commentaria Quaestorum_ and containing part of
the edict for summoning the assembly and the accused).

[1483] That is, after the increase in the number of praetors; Lange,
_Röm. Alt._ i. 884; ii. 551; Mommsen, _Röm. Staatsr._ ii. 543, n. 2.

[1484] P. 243, 248.

[1485] Cf. Mommsen, _Röm. Staatsr._ ii. 543 f.; Lange, _Röm. Alt._ i.
389, 884, 910; ii. 555.

[1486] P. 241.

[1487] Cf. Livy xxvi. 3. 9; xliii. 16. 11; Gell. vi. 9. 9; Karlowa, _Röm.
Rechtsgesch._ i. 409.

[1488] Cf. Herzog, _Röm. Staatsverf._ i. 196.

[1489] Livy iii. 59. 4; Dion. Hal. xi. 49. 3.

[1490] Livy iii. 56-8; Dion. Hal. xi. 46, 49.

[1491] Livy iii. 58. 10; Dion. Hal. xi. 49; Zon. vii. 18. 11.

[1492] 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,
_Röm. Staatsr._ ii. 324, n. 6. The political importance of the case,
however, was a sufficient motive to their undertaking it.

[1493] Livy iv. 16. 5 f.; 21. 3 f.; Cic. _Dom._ 32. 86; _Rep._ i. 3.
6; Val. Max. v. 3. 2 g; Lange, _Röm. 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, _Röm. Staatsr._ ii. 324, n. 6.

[1494] Livy vi. 1. 6.

[1495] Livy viii. 28; Dion. Hal. xvi. 5 (9); Suid. s. Γάιος Λαιτώριος.
Mommsen, _Röm. Staatsr._ ii. 325, n. 1, denies that a case of the kind
could come before the tribunes.

[1496] Dion. Hal. xvi. 4 (8); Val. Max. vi. 1. 11; Suid. ibid. This
prosecution could be brought on the ground of misconduct of office;
Mommsen, ibid.

[1497] Pliny, _N. H._ viii. 45. 180; Val. Max. viii. 1. 8.

[1498] Livy ix. 33. 4 f.

[1499] Ibid. 34. 26.

[1500] Val. Max. viii. 1. abs. 9.

[1501] Livy ix. 23. 2; Mommsen, _Röm. Staatsr._ ii. 323, n. 5.

[1502] The same thing is true of the finable actions of this period; p.
290.

[1503] 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 jurisdiction, to be afterward partially lost, is
thoroughly consistent with the law of plebeian progress, which consisted,
not in a steady forward movement, but in successive advances and retreats.

[1504] Livy, ep. xix.; Cic. _Div._ ii. 33. 71; _N. D._ ii. 3. 7; Polyb.
i. 52. 1-3; Schol. Bob. 337; Val. Max. viii. 1. abs. 4; Lange, _Röm.
Alt._ ii. 556; Mommsen, _Röm. Staatsr._ ii. 321, n. 1; iii. 357, n. 1; p.
317 below.

[1505] Cic. _Div._ ii. 33. 71; _N. D._ ii. 3. 7; Val. Max. i. 4. 3.

[1506] P. 318.

[1507] 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.

[1508] Cf. Mommsen, _Röm Staatsr._ ii. 299.

[1509] P. 241.

[1510] P. 267, 446.

[1511] Livy xxv. 3 f.

[1512] Livy xxv. 20. 6 ff.; 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.

[1513] Livy xxvi. 2. 7 through ch. 3; Mommsen, _Röm. Staatsr._ ii. 320,
n. 2, 321, n. 2; Lange, _Röm. Alt._ ii. 556; Greenidge, _Leg. Proced._
329 f. On the right to change the form of action, see p. 287.

[1514] 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 commission.

[1515] Livy xxix. 8. 6 ff.; chs. 16-22.

[1516] Livy xxix. 19. 5; 22. 7. The form of comitia is inferred from the
circumstances.

[1517] Livy xxxiv. 44. 7 f.

[1518] Livy xxix. 22. 8 f. (cf. xxxi. 12. 2); Diod. xxvii. 4; cf. Vai.
Max. i. 2. 21; Appian, _Hann._ 55.

[1519] XXIX. 22. 8.

[1520] Lange, _Röm. Alt._ ii. 557. The date of the execution of C.
Veturius in pursuance of a vote of the people (Plut. _C. Gracch._ 3) is
unknown.

[1521] Sall. _Cat._ 51. 21 f.: “Quamobrem in sententiam non addidisti,
ut prius verberibus 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, tum lex Porcia aliaeque paratae sunt, quibus legibus
exilium damnatis permissum est”; Cic. _Rab. Perd._ 3. 8: “De civibus
Romanis contra legem Porciam verberatis aut necatis”; Pseud. Sall. _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. 12 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.

[1522] Livy xxxii. 7. 8; Fest. 234. 10; The opinion here given is that
of Lange, _Röm. Alt._ ii. 205, 558. A different view is represented by
Orelli-Baiter, Cic. _Op._ viii. 3. 252 f.

[1523] The decisive evidence is a coin, described by Mommsen, _Röm.
Münzwesen_, 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 obverse P. LAECA reveals the author of
the law.

[1524] _Röm. Alt._ i. 249; ii. 559.

[1525] VI. 37 f.

[1526] Livy, ep. lvii; cf. Cic. _Rep._ i. 40. 63: “Noster populus in
bello sic paret ut regi.”

[1527] _Leg._ iii. 3. 6: “Militiae ab eo qui imperabit provocatio nec
esto,” which however, Mommsen, _Röm. Staatsr._ ii. 117, n. 2 (cf. _Röm.
Strafr._ 31, n. 3) sets down as merely a pious wish of the author.

[1528] 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 deseruisset, damnatusque sub furca diu virgis
caesus est, et sestertio nummo veniit.” The new epitome, l. 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.

[1529] Plut. _C. Gracch._ 9.

[1530] _Iug._ 69.

[1531] Modestinus, in _Dig._ xlix. 16. 3. 15; Menander, ibid. 16. 6. 1 f.

[1532] An example of a military consilium is given by Livy xxix. 20 f.

[1533] _Rep._ ii. 31. 54: “Neque vero leges Porciae, quae tres sunt trium
Porciorum, ut scitis, quicquam praeter sanctionem attulerunt novi.”

[1534] Cic. _Verr._ v. 62. 162.

[1535] Livy xliii. 16. 8 ff.

[1536] Polyb. vi. 14. 6; cf. Lange, _Röm. Alt._ ii. 560.

[1537] 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 f.;
Orelli-Baiter, Cic. _Op._ viii. 3. 278 f.

[1538] Cic. _Planc._ 6. 16.

[1539] IV. 50. 6 ff.

[1540] Livy viii. 18; Val. Max. ii. 5. 3.

[1541] IX. 26.

[1542] (1) 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.

[1543] Polyb. vi. 16. 2; Cic. _Dom._ 13. 33.

[1544] Dion. Hal. xx. 7. Though no mention is here made of a quaestio
extraordinaria, we may assume one for every such instance. In actual
iudicia populi the senate had no part.

[1545] Livy xxvi. 33 f.

[1546] The following pre-Gracchan quaestiones extraordinariae, according
to our authorities, owed their existence to a popular vote. (1) The lex
de pecunia regis Antiochi of the two Q. Petilii, 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; _Att._ xii. 5 b; Ascon.
22; Mommsen, _Röm. Strafr._ 197.

[1547] Lange, _Röm. Alt._ i. 728. The formula varied with the occasion,
and other magistrates were often associated with the consuls in this
supreme power.

[1548] Cic. _Cat._ i. 11. 28: “Numquam in hac urbe, qui a re publica
defecerunt, civium iura tenuerunt”; Mommsen, _Röm. Staatsr._ iii. 359;
Lange, _Röm. Alt._ ii. 560.

[1549] Plut. _Ti. Gracch._ 16; p. 368 below. The idea of Tiberius is to
be inferred from the law which his brother afterward passed.

[1550] Plut. _C. Gracch._ 4; Cic. _Lael._ 11. 37; _CIL._ i². p. 148.

[1551] Plut. _C. Gracch._ 3; cf. Greenidge, _Hist. of Rome_, i. 172.

[1552] Cic. _Rab. Perd._ 4. 12: “C. Gracchus legem tulit, ne de capite
civium Romanorum iniussu vestro iudicaretur”; _Cat._ iv. 5. 10; _Verr._
v. 63. 163; _Sest._ 28. 61; Schol. Gronov. 412: “Lex Sempronia iniussu
populi non licebat quaeri de capite civis Romani”; Schol. Ambros. 370;
Plut. _C. Gracch._ 4; p. 371 below.

[1553] For examples of special courts afterward instituted, see p. 390.

[1554] Sall. _Cat._ 51. 40; Cic. _Cat._ i. 11. 28; iv. 5. 10.

[1555] Cic. _Dom._ 31. 82 f.; Plut. _C. Gracch._ 4; cf. Lange, _Röm.
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).

[1556] Cic. _Sest._ 28. 61; cf. Dio Cass. xxxviii. 14. 5; Greenidge,
_Hist. of Rome_, i. 200 f.

[1557] Cic. _Dom._ 31. 82; _Leg._ iii. 11. 26; cf. _Cluent._ 35. 95;
Herzog, _Röm. Staatsverf._ i. 465.

[1558] Vell. ii. 7. 4.

[1559] Livy, ep. lxi: “Quod indemnatos cives in carcerem coniecisset”
(Mommsen reads “in carcere necasset” or “in carcerem coniectos necasset”;
_Röm. Staatsr._ ii. 111, n. 1); Cic. _Part. Or._ 30. 104, 106; _Orat._
ii. 25. 106; 30. 132; Lange, _Röm. Alt._ ii. 562; iii. 50; Greenidge,
_Hist. of Rome_, i. 278-80.

[1560] _History of Rome_, v. 5-7. His view is an inference from the
circumstances.

[1561] The prosecutor was L. Crassus; Cic. _Brut._ 43. 159; cf. _Orat._
i. 10. 40; ii. 40. 170; _Verr._ II. iii. 1. 3; Val. Max. vi. 5. 6.

[1562] 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, _Röm. Alt._ iii. 51.

[1563] P. 358.

[1564] Mommsen, _Röm. Staatsr._ ii. 223 ff.

[1565] (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 perduellio. 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 Maximus Servilianus for the murder of his son. The accused
went into exile before judgment was pronounced; Oros. v. 16. 8; Val. Max.
vi. 1. 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; _Sest._ 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.—(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. Ill._ 72. 11; Quintil. v. 12. 10; Cic. _Scaur._ 1,
3; _Sest._ 47. 101.—(6) L. Cornelius 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 Tarpeian
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; Vell. ii. 24;
Livy, ep. lxxx; Dio Cass. Frag. 102. 12; Plut. _Mar._ 45.

[1566] P. 255, n. 1 (4).

[1567] Cic. _Verr._ i. 13. 38; cf. Mommsen, _Röm. Staatsr._ ii. 326.

[1568] Dio Cass. lvi. 40. 4; Mommsen, _Röm. Staatsr._ ii. 326; iii. 359 f.

[1569] P. 243.

[1570] P. 203, n. 2.

[1571] Cic. _Rab. Perd._; Dio Cass. xxxvii. 26 ff.; Suet. _Caes._
12; Lange, _Röm. Alt._ ii. 563 f.; iii. 240; Drumann-Gröbe, _Gesch.
Roms_, iii. 150-5; Wirz, in _Jahrb. f. Philol._ xxv. (1879). 177-201.
In the opinion of Mommsen, _Röm. Staatsr._ ii. 298, n. 3; 615, n. 2,
following Niebuhr, a tribunician accusation involving a fine was then
introduced, and the oration of Cicero was delivered in this second trial.
Drumann-Gröbe, ibid.; Greenidge, _Leg. Proced._ 357 f.; Schneider,
_Process des Rabirius_ (Zürich, 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.

[1572] Cic. _Leg. Agr._ ii. 13. 33: “Orbis terrarum gentiumque omnium
datur cognitio sine consilio, poena sine provocatione, animadversio sine
auxilio”; p. 435.

[1573] Cic. _Har. Resp._ 4. 7.

[1574] Anquisitio seems to mean an examination on both sides—including
testimony for and against the accused; Fest. ep. 22; Greenidge, _Leg.
Proced._ 345, n. 3.

[1575] Varro, _L. L._ vi. 91 f.

[1576] Cic. _Dom._ 17. 45: “Cum tam moderata iudicia populi sint a
maioribus constituta ... ne inprodicta die quis accusetur, ut ter ante
magistratus accuset intermissa die, quam multam inroget aut iudicet,
quarta sit accusatio trinum nundinum prodicta die, quo die iudicium
sit futurum, tum multa etiam ad placandum atque ad misericordiam 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.”

[1577] 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.

[1578] Livy, xliii. 16. 11.

[1579] E.g. Greenidge, _Leg. Proced._ 306, 344. The theory has little in
its favor and is not generally accepted; cf. Mommsen, _Röm. Strafr._ 167
f.

[1580] 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.

[1581] Cic. _Dom._ 17. 45, quoted p. 259, n. 6.

[1582] Cf. the case of Appius Claudius Pulcher, p. 248.

[1583] Livy ii. 33. 1; Calpurnius Piso, in ibid. § 3; 58. 1; Dion. Hal.
vi. 89. 1; cf. Cic. _Rep._ ii. 33. 58; Mommsen, _Röm. Staatsr._ ii. 274
f. with notes. Meyer, in _Rhein. Mus._ xxxvii (1882). 616 f., suggests
a doubt as to whether they were instituted at that time. Niese, _De
annalibus Romanis observationes_ (1886), and Meyer, in _Hermes_, xxx
(1895), 1-24, have tried to prove that they were not instituted till 471
and that their original number was four. Niese’s view is controverted by
Joh. Schmidt, in _Hermes_, xxi (1886). 464-6. Pais, _Anc. Italy_, 260,
275, assumes that they came into existence as a result of the abolition
of the decemvirate.

[1584] Cic. Frag. A. vii. 48: “Tanta igitur in illis virtus fuit, ut anno
XVI post reges exactos propter nimiam dominationem potentium secederent
... duos tribunos crearent, ... Itaque auspicato postero anno tr. pl.
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 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.

[1585] (1) Because there were no other magistrates at the time, (2)
because the meeting was auspicated; p. 262, n. 2.

[1586] 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, 11; p. 285 below.

[1587] 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.

[1588] Livy ii. 33. 3: “Auxilii non poenae ius datum illi potestati”; cf.
Ihne, ibid. 170.

[1589] Gell. iii. 2. 11; xiii. 12. 9; Macrob. _Sat._ i. 3. 8; Dion. Hal.
viii. 87. 6; Serv. _in Aen._ v. 738; cf. Mommsen, _Röm. Staatsr._ ii.
291, n. 2.

[1590] Plut. _Q. R._ 81.

[1591] 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 association. 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 consequent exclusion of
the landless resulted from a centuriate law; p. 271. Notwithstanding the
fact that its resolutions lacked the force of law, the close relation
existing between it and the state gave it from the beginning a prominent
place in the constitution.

[1592] 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.”

[1593] Livy ii. 35. 3: “Auxilii non poenae ius datum illi potestati”; 56.
11-13.

[1594] Cf. Livy ii. 35. 2; 52. 3 ff.; 54. 3 ff.; 61.

[1595] Cf. Mommsen, _Röm. Staatsr._ ii. 320, n. 2; Ihne, in _Rhein. Mus._
xxi (1866). 175 ff.; Herzog, _Röm. Staatsverf._ i. 157.

[1596] Hence they had no viatores; so that for a time after they assumed
criminal jurisdiction the aediles acted as their bailiffs; p. 290.

[1597] Livy iii. 55. 10: (In the opinion of some iuris interpretates)
“Tribunos vetere iure iurando plebis, cum primum eam potestatem creavit,
sacrosanctos esse.”

[1598] 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 ff., believes that her temple was not built
before the middle of the fifth century, whereas Wissowa, _Relig. u. Kult.
d. Röm._ 45, holds to the traditional date (493); cf. De Sanctis, _Storia
d. Romani_, ii. 30. The building of the temple did not necessarily
precede the institution of the tribunate. On the sacrosanctitas of the
aediles, see Cato, in Fest. 318. 8; Mommsen, _Röm. Staatsr._ ii. 472 f.

[1599] As late as 131 a tribune of the plebs, C. Atinius Labeo, regarding
the censor Q. Caecilius Metellus as a homo sacer for alleged violation of
the tribunician sanctity, attempted without legal trial to hurl him from
the Tarpeian Rock; Livy, ep. lix; Pliny, _N. H._ vii. 44. 142 f., 146;
Cic. _Dom._ 47. 123. See also Vell. ii. 24. 2; (Aurel. Vict.) _Vir. Ill._
66. 8.

[1600] Cic. _Balb._ 14. 33; Fest. 318. 9; Herzog, _Röm. Staatsverf._
i. 147; also in _Jahrb. f. cl. Philol._ xxii (1876). 139-50; cf.
Mommsen, _Röm. Staatsr._ ii. 286. Ihne, in _Rhein. Mus._ 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. 1.
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. 1; 32. 7; Dion. Hal. x. 32. 4; (4) the
Valerian-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.

[1601] Pais, _Anc. Italy_, 263.

[1602] Dion. Hal. vi. 84, 89. 1; 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, _Röm. Gesch._ ii. 249 f.; Lange, _Röm. Alt._ i.
591; ii. 566, and opposed by Herzog, _Röm. Staatsverf._ i. 146 f.; De
Sanctis, _Storia d. Romani_, ii. 29.

[1603] Plut. _Ti. Gracch._ 15; Mommsen, _Röm. Staatsr._ ii. 287, n.
1. 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, _Röm. 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, _Röm. Gesch._ ii. 480, 531,
567. The fault is not all with the annalists.

[1604] P. 274.

[1605] Livy, ep. lviii; Plut. _Ti. Gracch._ 10.

[1606] Plut. _C. Gracch._ 3.

[1607] Dion. Hal. vii. 17. 5: Δημάρχου γνώμην ἀγορεύοντος ἐν δήμῳ μηδεὶς
λεγέτω μηδὲν ἐναντίον μηδὲ μεσολαβείτω τὸν λόγον. Ἐὰν δέ τις παρὰ ταῦτα
ποιήσῃ, διδότω τοῖς δημάρχοις ἐγγυητὰς αἰτηθεὶς εἰς ἔκτισιν ἧς ἂν
ἐπιθῶσιν αὐτῶ ζημίας. Ὁ δὲ μὴ διδοὺς ἐγγυητὴν θανάτῳ ζημιούσθω, καὶ τὰ
χρήματ’ αὐτοῦ ἱερὰ ἔστω. Τῶν δ’ ἀμφισβητούντων πρὸς ταύτας τὰς ζημίας αἱ
κρίσεις ἔστωσαν ἐπὶ τοῦ δήμου; cf. x. 32. 1; 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 (_Sest._ 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. Ill._ 65; cf. Mommsen, _Röm. Staatsr._ i. 260 n. 2; ii. 289, n. 1;
Lange, _Röm. 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 plebiscite was an expansion.

[1608] Gell. xiii. 12. 9: “Tribuni, qui haberent summam coercendi
potestatem.”

[1609] Cf. Mommsen, _Röm. Forsch._ i. 179; Ihne, in _Rhein. Mus._ xxi
(1866). 174.

[1610] Mommsen, _Röm. Staatsr._ ii. 299, n. 1, expresses the opinion that
the original form of the story represented Coriolanus as consul proposing
a law for the abolition of the tribunate.

[1611] Dion. Hal. vii. 20-67, especially 59. 9 f.; 65; Livy ii. 34 ff.;
Plut. _Cor._ 16-20; Lange, _Röm. Alt._ i. 605; ii. 565.

[1612] P. 56, n. 4, 270 f.

[1613] Livy iii. 11. 8 f.; Dion. Hal. x. 5 ff.

[1614] Livy iii. 13. 8; Dion. Hal. x. 8. 3.

[1615] 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) may be biassed by his personal feelings; p. 268,
n. 6.

[1616] 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.

[1617] P. 265 f.

[1618] Livy ii. 35. 3; cf. 56. 11 f.

[1619] Livy iii. 55. 6.

[1620] Livy ii. 54.

[1621] Frag. 22. 1.

[1622] P. 241; cf. also Herzog, _Röm. 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
(_Sest._ 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, n. 6) cannot
be neglected: in discrediting 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.

[1623] Cic. _Rep._ ii. 35. 60; Gell. xi. 1. 2 f.; Fest. 202. 11; 237.
13; ep. 144; cf. p. 233 above. Dionysius, x. 50. 1 f., wrongly gives two
cattle and thirty sheep as the maximum.

[1624] X. 50. 1 f.

[1625] With less probability Lange, _Röm. Alt._ i. 620; ii. 576 f.,
regards it as a concession to the plebs to satisfy their craving for the
limitation of the consular power by written law.

[1626] Livy ii. 43. 3; 44. 6; Dion. Hal. viii. 87. 4; ix. 5. 1; 18. 1; x.
26. 4; Dio Cass. Frag. 22. 3; Zon. vii. 17. 7.

[1627] Livy iii. 11. 1.

[1628] Mommsen, _Röm. Staatsr._ ii. 297.

[1629] 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 mentioned 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
condition.

[1630] Cf. Herzog, _Röm. Staatsverf._ i. 157.

[1631] Cf. Livy ii. 42. 6; 43. 3; 44. 1; 48. 2 f.; 52. 2 f.; 54. 2; Dion.
Hal. viii. 87. 4 f.; ix. 5. 1; 37. 1 f.

[1632] Livy ii. 56. 2: “Rogationem tulit ad populum, ut plebei
magistratus tributis comitiis fierent.”

[1633] The senate gave its consent; Livy ii. 57; Dion. Hal. ix. 49. 3 f.

[1634] Livy ii. 56. 3: “Haud parva res sub titulo prima specie minime
atroci ferebatur, sed quae patriciis omnem potestatem per clientium
suffragia creandi quos vellent tribunos auferret”; cf. Dion. Hal. ix. 41.
5.

[1635] That the ancients had this conception of the curiate assembly
which elected tribunes cannot be doubted; p. 24, 32; cf. Mommsen, _Röm.
Forsch._ ii. 283, n. 1.

[1636] P. 54, 60 f.

[1637] IX. 49. 5; cf. 41. 3. Patrician magistrates auspicated their
comitia, plebeian magistrates did not; p. 104.

[1638] VII. 17. 6: Καί τινες τῶν δημάρχων ἄλλα τε κατὰ τῶν εὐπατριδῶν
συνέγραψαν, καὶ τὸ ἐξεῖναι τῷ πλήθει καὶ καθ’ ἑαυτὸ συνιέναι καὶ ἄνευ
ἐκείνων βουλεύεσθαι καὶ χρηματίσαι πάνθ’ ὅσα ἂν ἐθελήσῃ; cf. Livy ii. 60.
4 f.

[1639] Livy ii. 56. 11 f.

[1640] Livy iii. 11. 4; vi. 35. 7; Dion. Hal. x. 3. 5; ch. 4; 40. 3 f.;
41.

[1641] P. 300 f.

[1642] IX. 43. 4.

[1643] Dion. Hal. ix. 49. 5; Livy ii. 56. 2; Dio Cass. xxxix. 32. 3;
Suet. _Caes._ 76; cf. Herzog, _Röm. Staatsverf._ i. 799, n. 2.

[1644] Diod. xi. 68. 8: Ἐν τῇ Ῥῶμῃ τότε πρώτως κατεστάθησαν δήμαρχοι
τέτταρες, Γάιος Σικίνιος καὶ Λεύκιος Νεμετώριος, πρὸς δὲ τούτοις Μάρκος
Δουίλλιος καὶ Σπόριος Ἀκίλιος. Livy, ii. 58. 1, following Piso, 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. 1. In the opinion of Meyer, in _Hermes_, xxx
(1895). 1-24; _Gesch. d. Alt._ v. 141 f., the plebeian tribunate was
instituted 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.

[1645] It has been shown above (119 ff., 126 ff.) that the assembly of
tribes under tribunician presidency is rightly so designated.

[1646] Livy ii. 61. 1; 63. 2; iii. 1. 2 f.; Dion. Hal. ix. 51 f.

[1647] Livy iii. 31. 5 f. (454); Dion. Hal. x. 34 f., 42, 48; Pliny, _N.
H._ vii. 28. 101.

[1648] Livy iii. 10; 25. 9; 30. 5; Dion. Hal. x. 15. 3; 20. 4; 26. 4; Dio
Cass. Frag. 21.

[1649] 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, _Röm. Staatsverf._ i. 161; cf. above p. 270, n. 2.
The change was made with the consent of the senate, doubtless through a
centuriate law.

[1650] P. 233, 265, n. 1 (3).

[1651] P. 265, n. 1 (3).

[1652] Herzog, _Röm. Staatsverf._ i. 170.

[1653] 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.

[1654] Cf. Livy ii. 15. 1 f.

[1655] Livy ii. 3. 5; 5. 1.

[1656] Cf. Livy iii. 70. 14.

[1657] Livy ii. 36. 1; 37. 1.

[1658] Livy ii. 37. 8.

[1659] Cf. Livy iii. 21. 1 f.

[1660] 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.

[1661] Cf. Livy iii. 11. 1.

[1662] Livy iii. 11. 4; 14. 5; 16. 6; 17. 4; Dion. Hal. x. 3. 3 f.; 4. 2.

[1663] Livy iii. 33. 4; Dion. Hal. x. 55. 3; p. 233 above.

[1664] Cf. Livy ii. 58. 1; iii. 24. 9; 30. 6.

[1665] Cf. p. 264 ff.

[1666] P. 234.

[1667] Livy. iii. 55. 7; cf. p. 264.

[1668] Ibid. § 6 f.

[1669] Livy iii. 55. 8 ff.; cf. Cic. _Balb._ 14. 33; _Tull._ 20. 47;
Appian, _B. C._ ii. 108. 453; Mommsen, _Röm. Staatsr._ ii. 303 with notes.

[1670] Plut. _Ti. Gracch._ 15.

[1671] 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.

[1672] On the tribunician legislation of the period 449-339, see p. 292
ff.

[1673] P. 271.

[1674] XI. 45. 3: Εἴρηται δὲ καὶ πρότερον, ὅτι ἐν μὲν ταῖς φυλετικαῖς
ἐκκλησίαις οἱ δημοτικοὶ καὶ πένητες ἐκράτουν τῶν πατρικίων.

[1675] VI. 35. 7: “Qui (patres) ubi tribus ad suffragium ineundum citari
a Licinio Sextioque viderunt, stipati patrum praesidiis nec recitari
rogationes nec 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
taking 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 tribunician
assembly against the measure then before the plebs. Soltau’s objection
(_Berl. 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.

[1676] P. 153, 156 f.

[1677] P. 157, 211.

[1678] P. 211.

[1679] P. 271, n. 3.

[1680] P. 300 f.

[1681] Mommsen, _Röm. Staatsr._ iii. 157, regarding the alleged
pre-decemviral plebiscites 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 centuriate laws is
accepted in this chapter.

[1682] P. 235.

[1683] 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 intercessionem collegarum, qui nullum plebi
scitum nisi ex auctoritate senatus passuros se perferri ostenderunt,
discussum est,” 415); 51. 2 f. (413); vi. 42. 9 (Licinian-Sextian
plebiscite); vii. 15. 12 f. (law against bribery, 356); 27. 3 (347);
viii. 23. 11 f. (the plebiscite for prolonging the consular imperium,
327); x. 6. 9 (Ogulnian plebiscite, 300); 21. 9 (plebiscite ordering
the praetor to appoint triumviri for conducting colonies, 296). Cf.
also Dion. Hal. x. 26. 4 f. (457); 30. 1; 48. 1 (454); 50. 3; xi. 54.
4 (444); Mommsen, _Röm. Forsch._ i. 208 ff. All the citations from
Dionysius, excepting the last, refer to pre-decemviral time, and hence
are anticipations of a later condition.

The first triumph by order of the people, without the consent of the
senate, according 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 permission either of the senate or of the
people (Mommsen, _Röm. Forsch._ i. 214 f.), provided he paid his own
expenses; Polyb. vi. 15. 8; Livy xxxiii. 23. 8. The resolution of the
people on this occasion, if historical, may have been a mere pledge of
sympathy and confidence; cf. p. 293. But Herzog, _Röm. 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, _Röm. Staatsr._ iii. 158; Herzog, _Röm.
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, _Röm. Alt._ iii.
154; Mommsen, _Röm. Staatsr._ iii. 158; Fröhlich, in Pauly-Wissowa,
_Real-Encycl._ iv. 1559.

[1684] Cf. Mommsen, _Röm. Staatsr._ iii. 157.

[1685] Lange’s idea (_Röm. 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 coöperation, and even
the law they tried in vain to disregard.

[1686] Livy iii. 55. 13.

[1687] Cf. Mommsen, _Röm. Staatsr._ iii. 158.

[1688] Diod. xii. 25. 3: Ἐὰν δὲ οἱ δήμαρχοι μὴ συμφωνῶσι πρὸς ἀλλήλους,
κύριοι εἶναι τὸν ἀνὰ μέσον κείμενον μὴ κωλύεσθαι; Livy iv. 48. 10-16
(416); 53. 6; v. 25. 1 (395); vi. 36. 8; 37. 3; 38. 5. The same passages
show the dependence of the government upon the tribunes for checking
innovations.

[1689] Livy iii. 69. 5 f.; iv. i. 6; 30. 15; 53. 2, 6 (407); 55. 1-5
(406); 60. 5 (403); v. 12. 3, 7 (397); vi. 27. 9 f. (376); 31. 4 (cf. 31.
1 f., year 374); vi. 36. 3 f.; Dion. Hal. xi. 54. 3 (444).

[1690] It is true that Livy (iv. 50. 6, 8; 56. 10-13, year 408; v. 9.
4 ff., 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.
1 (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 government, on the other hand, continued
to use the levy for the obstruction of tribunician bills; Livy iv. 55. 1
(409); v. 11. 9 (401).

[1691] 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
(_Röm. Chron._ ii. 110), 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).

[1692] P. 104, 110, 116 f.

[1693] X. 47. 1.

[1694] P. 116 f.

[1695] P. 230.

[1696] Cf. Livy vi. 3. 2 (389); 33. 7 f. (377); vii. 19. 7 (353).

[1697] Livy vi. 14. 1: “Dictator ... minime 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 declaration 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.

[1698] Livy v. 49. 2 (390).

[1699] Livy iv. 58. 1 f.; v. 28. 5 (394); 50. 3 (390); vi. 10. 9 (382);
vii. 19. 4 (353); 22. 5 (351); 38. 1 (343); viii. 2. 1 (341); 19. 1-3
(330); x. 11. 13 with 12. 1, 13 (298); 45. 4 (293); p. 302.

[1700] Livy viii. 11 f., 14 (340, 338). It punished for revolt; ibid.
viii. 20. 7 (329).

[1701] Livy vi. 26. 8; viii. 11. 16; p. 304.

[1702] P. 273.

[1703] Livy v. 19. 6 (396); cf. iv. 27. 1 (431).

[1704] Livy v. 50 (390).

[1705] Cf. Livy vii. 28. 5 f. (345).

[1706] 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.

[1707] Cf. the tributum for the new wall; Livy vi. 32. 1.

[1708] Cf. Livy v. 30. 8 (393); p. 295, 310.

[1709] Livy iv. 11; 47. 6; v. 24. 4; 30. 8; ix. 28. 8 (313); Vell. i. 14.
1; p. 310.

[1710] Livy vi. 4. 5 (389).

[1711] Livy v. 13. 5 (399).

[1712] Livy iv. 30. 9 (428).

[1713] Livy x. 1. 3 (303).

[1714] Livy iv. 46. 10; 56. 8; vi. 11. 10; vii. 6. 12; 21. 9; vii. 3. 4;
viii. 17. 3; 29. 9 (325).

[1715] Livy v. 9. 6 (402).

[1716] Livy v. 9; 17. 2 f. (397); 31 f. (392, 391); viii. 3. 4 (341).

[1717] Livy viii. 16. 11; 20. 7; 39. 15 (322).

[1718] P. 277, n. 4.

[1719] Livy vi. 19. 3 (384).

[1720] Livy iii. 54. 5, 9, 11 (449).

[1721] Livy iii. 65. 1 (448). That the coöptation of tribunes was once
legal is proved by a formula quoted by Livy iii. 61. 10. That the coöpted
tribunes were patrician is now generally disbelieved (cf. Herzog, _Röm.
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.

[1722] 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
reëstablishment of the constitution.

[1723] V. 10. 11; 11. 1-3.

[1724] Livy iv. 16. 3 (439).

[1725] Continuous fasti tribunicii, however, did not exist.

[1726] Thereafter when a vacancy occurred during the year, it was filled
by election; Appian, _B. C._ i. 13. 54; Plut. _Ti. Gracch._ 13.

[1727] Tac. _Ann._ xi. 22; Cic. _Fam._ vii. 30. 1; cf. Gell. xiii. 15. 4.

[1728] Livy ix. 46. 1 f.; xxv. 2. 7; Varro, _R. R._ iii. 17. 1; Cic.
_Planc._ 20. 49; Piso, in Gell. vii. 9. 2.

[1729] Sall. _Iug._ 63.

[1730] Gell. xiii. 15. 4.

[1731] P. 280.

[1732] P. 241, 268.

[1733] Cf. Cic. _Leg._ iii. 19. 45; Livy xxvi. 3. This subject is
admirably presented by Lange, _Röm. Alt._ ii. 578-80.

[1734] Cic. _Inv._ i. 38. 68.

[1735] Cf. Livy v. 11. 4; 12. 2; 29. 6 f.; viii. 33. 17; xxvi. 3. 6.

[1736] Livy xxvi. 3. 6-9; p. 307 f., 322 above.

[1737] 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. 1. 2; Fest. 202. 11; 237. 13; ep. 144; Lange, _Röm. Alt._ i.
622; Herzog, _Röm. Staatsverf._ i. 172, 639. The law is no proof of the
existence of coins at that time.

[1738] Cato, _Orig._ v. 5; Fest. 246 (lex Silia); Cic. _Rep._ 35. 60;
Livy iv. 30. 3; Karlowa, _Röm. Rechtsgesch._ i. 409; Lange, _Röm. Alt._
ii. 580.

[1739] Livy viii. 37. 8 ff. A tribune of the plebs brought before the
tribes certain Tusculans, accused of having incited neighboring states
against Rome, 323. They were acquitted; p. 310.

[1740] Livy iv. 11. 3-7. This is one of the few prosecutions of inferior
officials for maladministration; Mommsen, _Röm. Staatsr._ ii. 323, n. 2.
The event is too early to be certain.

[1741] Livy iv. 40. 4; 41. 10 f.; Lange, _Röm. Alt._ ii. 581.

[1742] Livy v. 11. 4 ff.; 12. 1.

[1743] P. 244 f.

[1744] Livy vi. 1. 6.

[1745] Livy vii. 3-5.

[1746] _Off._ ii. 31. 112.

[1747] Livy x. 37. 7; cf. xxix. 19. 6 f.; Mommsen, _Röm. Staatsr._ ii.
320, n. 3.

[1748] Livy x. 46. 16.

[1749] Livy, ep. xi; cf. p. 306 below.

[1750] Livy, ep. xi; Dion. Hal. xvii. 4 f.; Dio Cass. Frag. 36. 32.
Dionysius states the fine at 50,000 denarii.

[1751] Livy v. 29. 6 f. Lange, _Röm. Alt._ i. 823; ii. 581, looks
with suspicion on this case because it is the only one of the kind in
the period. Mommsen, _Röm. Staatsr._ ii. 323, n. 1, considers it an
anticipation of the condemnation of the tribunes in 84 for having taken
the side of Sulla.

[1752] Livy iv. 21. 3 f.

[1753] Livy vi. 38. 9; Plut. _Cam._ 39.

[1754] P. 247, 248, n. 1.

[1755] Cf. Mommsen, _Röm. Staatsr._ ii. 282, 475. In time the aediles
themselves received viatores through a lex Papiria of unknown date;
_CIL._ vi. 1933.

[1756] Dion. Hal. vii. 35. 4; Plut. _Cor._ 18. For this reason
tribunician sentences continued to the end to be executed by a tribune or
an aedile; Mommsen, _Röm. Staatsr._ i. 146.

[1757] Dion. Hal. vi. 90. 2; cf. 95. 4; Zon. vii. 15. 10.

[1758] Livy iii. 31. 4-6; Dion. Hal. x. 48; Pliny, _N. H._ vii. 29. 201.

[1759] P. 264, 272. Mommsen, _Röm. 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.

[1760] As in 204, when an aedile was sent to arrest Scipio, should
circumstances favor his apprehension: Livy xxix. 20. 11; xxxviii. 52. 7.
More frequently they executed the sentence; p. 290, n. 5.

[1761] Livy vii. 16. 9; Dion. Hal. xiv. 12 (22); Pliny, _N. H._ xviii. 3.
17; Plut. _Cam._ 39; Val. Max. viii. 6. 3.

[1762] Livy x. 13. 14; cf. Greenidge, _Leg. Proced._ 341.

[1763] Livy x. 23. 13. We are not informed whether these cases came
before the assembly.

[1764] Livy x. 47. 4.

[1765] Livy vii. 28. 9. The rank of the prosecutor cannot be more
definitely stated.

[1766] Pliny, _N. H._ xxxiii. (6.) 19. The accuser, Cn. Flavius, was
curule aedile; Livy ix. 46. 1.

[1767] Livy x. 23. 11 f. The prosecutors were curule aediles.

[1768] 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 supposition that the
proceedings were at that point interrupted, and the whole vote taken
again; Lange, _Röm. Alt._ ii. 486.

[1769] Mommsen, _Röm. Staatsr._ ii. 493, n. 3; Lange, _Röm. Alt._ ii.
584. From the nature of the process we infer that it was aedilician; and
as the accuser was a patrician, his aedileship must have been curule.

[1770] P. 233, 269, 287.

[1771] P. 264.

[1772] P. 103.

[1773] P. 102, n. 1.

[1774] P. 273 ff.

[1775] Livy iii. 54. 14.

[1776] Ibid. § 15.

[1777] Livy iii. 55. 14.

[1778] Mommsen, _Röm. Staatsr._ ii. 279, n. 1, 302.

[1779] We have no means of testing the historical truth of these three
alleged plebiscites. The first Icilian was of transient character, and
the first Duillian was unnecessary, though not especially suspicious on
that account. The second Duillian represents constitutional principles
known to have been early established. They are doubted by Herzog, _Röm.
Staatsverf._ i. 149 f.

[1780] XII. 25. 2. He does not state that this arrangement was embodied
in a law, although otherwise it could not have been effective.

[1781] 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.

[1782] Livy iii. 63. 8-11; Dion. Hal. xi. 50. 1; _Act. Triumph. Capit._,
in _CIL._ i². p. 44; cf. Herzog, _Röm. Staatsverf._ i. 194.

[1783] Livy vii. 17. 9; _Act. Triumph. Capit._, in _CIL._ i². p. 44. In
this case it is possible that the senate for a time resisted, to yield
finally under pressure.

[1784] Cf. Polyb. vi. 15. 8; Dio Cass. Frag. 74. 2; Lange, _Röm. Alt._
ii. 623.

[1785] 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 x. 37. 6-12; Dion. Hal. xvii, xviii. 5.
3 (18); _Act. Triumph. Capit._ in _CIL._ i². 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._ i². p. 48;
cf. Mommsen, _Röm. Forsch._ i. 214 f.; _Röm. Staatsr._ iii. 134.

[1786] P. 273, 284.

[1787] Cf. Livy iv. 20. 1; vi. 42. 8.

[1788] P. 285; cf. p. 301.

[1789] 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.

[1790] P. 234.

[1791] P. 286.

[1792] Livy iii. 71 f.; Dion. Hal. xi. 52. Herzog, _Röm. Staatsverf._ 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.

[1793] P. 230, 283.

[1794] The institution of new offices and the increase in number within
existing magisterial colleges by act of the centuries (cf. p. 234) is
merely the application of a long-recognized popular right.

[1795] Livy iv. 12. 8. This alleged act of the tribes is suspicious
because of its isolation; for in this period offices were instituted
by the centuries. It is either exceptional or an anticipation of later
usage; cf. p. 306.

[1796] 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.

[1797] 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.

[1798] 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.

[1799] Cf. iv. 48. 1; 53. 6; v. 12. 3; vi. 5. 2; 6. 1.

[1800] Livy iv. 36. 2 (424).

[1801] Livy iv. 59. 11; Diod. xiv. 16. 5; Zon. vii. 20. 6; Flor. i. 6
(12). 8; cf. Lange, _Röm. Alt._ i. 540, 668 f.; ii. 627; Herzog, _Röm.
Staatsverf._ i. 212 f.; p. 284 above.

[1802] Livy vi. 42. 2; cf. Wissowa, _Relig. u. Kult. d. Röm._ 461.

[1803] The word utique, “at least,” inserted in this article by Livy, vi.
35. 5, belongs to the Genucian law of 342; p. 299.

[1804] Livy vi. 35. 4 f.; 42. 9; xxxiv. 4. 9.

[1805] 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;
Vell. ii. 6. 3; Val. Max. viii. 6. 3; (Aurel. Vict.), _Vir. Ill._ 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; _Röm. 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, controverting 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
anticipation of a plebiscite on the same subject passed in 447; p. 298
below; cf. Matzat, _Röm. Chron._ ii. 113, n. 9; 128, n. 6.

[1806] Livy vii. 15. 12 f.; Isler, _Ueber das poetelische Gesetz
de ambitu_, in _Rhein. Mus._ xxviii (1873). 473-7; Lange, _Kleine
Schriften_, ii. 195-213; _Röm. Alt._ i. 716; Herzog, _Röm. Staatsverf._
i. 241 f.; Ihm, in Pauly-Wissowa, _Real-Encycl._ i. 1801; cf. p. 295
above.

[1807] P. 202.

[1808] P. 235, 314.

[1809] Livy vii. 16. 7 f.; cf. Herzog, _Röm. Staatsverf._ i. 246-8;
Lange, _Röm. Alt._ i. 191; ii. 26, 621.

[1810] Livy vii. 16. 8.

[1811] Livy vii. 16. 1. 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.

[1812] Tac. _Ann._ vi. 16; cf. Herzog, _Röm. Staatsverf._ i. 183, n. 3.

[1813] Livy vii. 21, 5; cf. Herzog. _Röm. Staatsverf._ 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, _Röm. Alt._ ii. 621 f., conjecturally
identifies the lex Marcia against usurers; Gaius iv. 23. In his opinion
also (ibid. ii. 622; cf. Rudorff, _Röm. 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, _Gai. 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, _Röm. Alt._ ii. 621).
These considerations 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.

[1814] Livy vii. 27. 3; Tac. _Ann._ vi. 16. The author is not named.

[1815] P. 238.

[1816] 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.

[1817] Pais, _Stor. di Rom._ I. ii. 270, with his usual acumen has
argued against the existence of the Genucian as well as of the Publilian
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.

[1818] 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, _Röm. Staatsr._ 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.

[1819] 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, _Röm.
Staatsverf._ i. 253, n. 2. The first definitive election of two plebeians
was in 172; _Fast. Cos. Capit._, in _CIL._ i². p. 25: “Ambo primi de
plebe.”

[1820] Cf. Herzog, _Röm. Staatsverf._ i. 253.

[1821] Livy viii. 12. 14-16.

[1822] P. 235.

[1823] P. 237.

[1824] P. 307.

[1825] P. 274, 313.

[1826] The most detailed study of this subject, including a critique
of the principal modern views, is made by Soltau, _Gültigkeit der
Plebiscite_, in _Berl. Stud._ ii (1885). 1-176. His criticism is more
satisfactory than his construction.

[1827] 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
ordinum), 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.
1, 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.

[1828] P. 230.

[1829] Livy ix. 5. 2.

[1830] _Inv._ ii. 30. 92.

[1831] Livy ix. 8. 14: the tribunes protested against breaking it.

[1832] Livy ix. 10. 10: the circumstance that he assaulted the Roman
fetialis is sufficient evidence of his view.

[1833] IX. 9. 4. Gellius, xvii. 21. 36, less credibly states that the
treaty was repudiated by order of the people.

[1834] Livy ix. 5-11; Cic. _Off._ iii. 30. 109; _Inv._ ii. 30. 92; Zon.
vii. 26. 15.

[1835] Livy ix. 9. 4.

[1836] Livy viii. 36. 11 f. (ambassadors of the Samnites, applying for
peace to the dictator, 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 territory, grants them a renewal of the
treaty, 302). In none of these instances is mention made of the people;
and most of them preclude a popular vote.

[1837] Sall. _Iug._ 39.

[1838] 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, x.
11. 13; 12. 1, mentions the senate only; Dionysius, xvii, xviii (xvi.
12). 1. 3, speaks of both senate and assembly.

[1839] Cf. Livy ix. 20. 2 f.

[1840] Polyb. vi. 14. 10 f.; 15. 9.

[1841] P. 181.

[1842] _Röm. Alt._ i. 514; ii. 638; p. 283 above.

[1843] Livy viii. 13. 10 ff.; ch. 14.

[1844] The gift of citizenship, adprobantibus cunctis, to L. Mamilius,
dictator of Tusculum, 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 Campania in 340,
involving the grant of citizenship to the Capuan equites, no mention
is made of either senate or people; Livy viii. 11. 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.

[1845] Livy viii. 17. 12.

[1846] _Röm. Alt._ ii. 638.

[1847] I. 14. 4.

[1848] 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.

[1849] Livy ix. 43. 24.

[1850] P. 352.

[1851] Lange, _Röm. Alt._ ii. 610 f., 638.

[1852] P. 234. The only exception is the creation of a prefecture of the
market by a plebiscite in 440; p. 295.

[1853] Livy viii. 23. 11 f.

[1854] Livy x. 22. 9.

[1855] Livy ix. 42. 2.

[1856] Livy x. 16. 1.

[1857] Dion. Hal. xvii, xviii (xvi. 16). 4. 4.

[1858] Lange, _Röm. Alt._ ii. 640.

[1859] Livy x. 24. 18; cf. Willems, _Sén. Rom._ ii. 531. For other
versions of the event, see Livy x. 26. 5 f.

[1860] Livy, ep. xi; p. 359 above. Probability favors the tribunician
assembly.

[1861] Livy ix. 20. 5.

[1862] Fest. 233. 14.

[1863] Mommsen, _Röm. Staatsr._ ii. 609.

[1864] Lange, _Röm. Alt._ ii. 73, 632. Cuq, in Daremberg et Saglio,
_Dict._ iii. 1144, assumes that it was proposed by L. Furius, praetor in
that year.

[1865] Livy ix. 30. 3.

[1866] P. 234.

[1867] 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, _Röm.
Staatsr._ ii. 580, n. 1, 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.

[1868] P. 309.

[1869] P. 311.

[1870] Lange, _Röm. Alt._ ii. 534, 636.

[1871] Fest. 246. 19.

[1872] 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, _Kleine Schriften_, ii. 393-446; Willems, _Sén. Rom._ i. 153-173,
668-89; Herzog, _Röm. Staatsverf._ i. 259 ff.; Mommsen, _Röm. Staatsr._
ii. 418; iii. 873, 879.

[1873] Cf. Livy iv. 5. 2; p. 287 above.

[1874] Cf. Gell. x. 20. 4, 9 f.

[1875] Cf. Livy viii. 16. 4; ix. 7. 15; 28. 2; Diod. xix. 66. 1; p. 299,
n. 3.

[1876] Livy x. 13. 8 f.

[1877] _Röm. Alt._ ii. 641.

[1878] Livy x. 22. 9.

[1879] It is the only instance mentioned for this early time.

[1880] Livy x. 13. 10: “Iam regi leges, non regere”; cf. Appian, _Lib._
112; Lange, _Röm. Alt._ ii. 641.

[1881] P. 295 f.

[1882] P. 293, 295, n. 6.

[1883] _Div._ i. 26. 55; Macrob. _Sat._ i. 11. 13 (on the reading, see
Mommsen, in _Hermes_ iv (1870). 7; Lange, _Röm. Alt._ ii. 634.

[1884] Livy viii. 13. 1.

[1885] Macrob. _Sat._ i. 11. 5; Cuq, in Daremberg et Saglio, _Dict._ iii.
11. 54. On these games, see Marquardt, _Röm. Staatsv._ iii. 497; Wissowa,
_Relig. u. Kult. d. Röm._ 111 f., 385 f.

[1886] Livy ii. 36; Dion. Hal. vii. 68; Plut. _Cor._ 24; Val. Max. i. 7.
4; cf. Lange, _Röm. Alt._ ii. 634.

[1887] Livy ix. 46. 7.

[1888] _Röm. Alt._ i. 828; ii. 634.

[1889] Cic. _Dom._ 49. 127 f.; _Att._ iv. 2. 3.

[1890] 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. Röm._ 432, n. 4.)

[1891] P. 240, 241, 269, 280.

[1892] P. 241 f.

[1893] P. 295.

[1894] 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 expression a popular vote. The
epitomator undoubtedly drew all his information from the text.

[1895] Livy ix. 26. 6 ff.; cf. however, Lange, _Röm. Alt._ ii. 637.

[1896] Livy viii. 37. 8; Val. Max. ix. 10. 1; Pliny, _N. H._ vii. 42. 43.
136; p. 288, n. 1.

[1897] Lange, _Röm. Alt._ ii. 637.

[1898] Livy ix. 16. 10; xxvi. 33. 10.

[1899] Cic. _Rep._ ii. 34. 59; Livy viii. 28; Varro, _L. L._ vii. 105;
Dion. Hal. xvi. 5 (9); Suidas, s. v. Γάιος Λαιτώριος; cf. Kleineidam, _in
Festg. f. F. Dahn_, ii. 1-30.

[1900] 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.

[1901] Greenidge, _Leg. Proced._ 74.

[1902] P. 238.

[1903] P. 284.

[1904] Livy, iv. 11. 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, _Röm. 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.

[1905] Livy x. 21. 9; p. 307.

[1906] Livy viii. 36. 9 f.; ix. 42. 5.

[1907] Cf. Livy x. 6. 3; 21. 9; Herzog, _Röm. Staatsverf._ i. 282 f.

[1908] Cf. Livy x. 17. 10; 20. 16; 25. 3; 30. 10: “Praemia illa
tempestate militiae haudquaquam spernenda”; 31. 4; 44. 1; 45. 14; 46. 15.

[1909] Livy x. 13. 14; 23. 13; 47. 4.

[1910] Livy x. 46. 5 f.

[1911] Livy x. 31. 8; 47. 6; ep. xi; Zon. viii. 1. 10; Val. Max. i. 8. 2.

[1912] Livy x. 23. 11 f.

[1913] P. 307, n. 1, 332.

[1914] P. 279.

[1915] Boissevain’s reading.

[1916] 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. 110 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.

[1917] 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: “Unde 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 appellantur, quae tribunis plebis ferentibus accepta sunt,
quibus rogationibus ante patricii non tenebantur, donec 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.”

[1918] P. 235, 372.

[1919] This fact is clearly expressed by Gaius; see p. 313, n. 2 above.

[1920] 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 veto upon the senate;
Val. Max. ii. 2. 7; Zon. vii. 15. 8; cf. Mommsen, _Röm. 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, n. 2.

[1921] P. 270.

[1922] 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. 471 below.

[1923] P. 139.

[1924] P. 471 below; cf. Lange, _Röm. Alt._ ii. 644; Herzog, _Röm.
Staatsverf._ i. 287 f.; Mommsen, _Röm. Staatsr._ iii. 372 f.

[1925] P. 243, 287 f.

[1926] P. 247, 289.

[1927] P. 309.

[1928] P. 290.

[1929] p. 248 ff.

[1930] P. 330 ff.

[1931] P. 248.

[1932] (Aurel. Vict.) _Vir. Ill._ 50. 1.

[1933] Livy xxii. 35. 3; 40. 3; 49. 11; xxvii. 34. 3 f.; xxix. 37. 13 f.

[1934] P. 62.

[1935] Livy xxiv. 18. 3, 6.

[1936] Livy xxii. 53. 4 f.

[1937] Livy xxiv. 43. 1-3; cf. Klebs, in Pauly-Wissowa, _Real-Encycl._
ii. 2093.

[1938] 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,
_Röm. Staatsr._ ii. 322, n. 4.

[1939] 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,
_Röm. 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.

[1940] Val. Max. viii. 1. damn. 5. Here, too, should be mentioned the
condemnation of a member of the same board in a similar action for
neglect to inspect the watchmen; Val. Max. ibid. § 6.

[1941] Cato, _Orat._ i: “Dierum dictarum de consulatu suo.”

[1942] Livy xxvii. 46. 1 f.

[1943] Cato, _Orat._ xiii; Livy xxxviii. 57. 10; cf. Mommsen, _Röm.
Forsch._ ii. 459 ff.

[1944] For the cognomen, see Münzer, in Pauly-Wissowa, _Real-Encycl._ iv.
1475.

[1945] 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.
Ill._ 49. 16-9.

[1946] Mommsen, _Röm. Forsch._ ii. 464 f.

[1947] In the story of the trial given by Antias the two Petilii were the
prosecutors of 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.

[1948] This incident is considered doubtful by Bloch, in _Rev. d. étud.
anc._ viii. (1906). 109.

[1949] According to Diod. xxix. 21, Scipio was threatened with the death
penalty; but the trial actually took the form described above in the text.

[1950] Gell. vi. 19. 2. It was probably in connection with this trial
that Cato delivered his speech “Concerning the money of King Antiochus”;
Livy xxxviii. 54. 11; Plut. _Cat. Mai._ 15; Cato, _Orat._ xv.

[1951] 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, _Röm. Staatsr._ ii.
322, n. 2.

[1952] The account here given closely follows Mommsen, _Röm. Forsch._ ii.
417-510. For other authorities on the trial, see p. 329.

[1953] Plut. _Cat. Mai._ 19; Lange, _Röm. Alt._ ii. 590; Mommsen, _Röm.
Staatsr._ ii. 322, n. 4.

In 142 P. 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. 11. 9), in
which was charged against him a lustrum malum infelixque; Lucilius, in
Gell. iv. 17. 1; cf. Cic. _Orat._ ii. 64. 258; 66. 268. The prosecution
probably failed; Lange, _Röm. Alt._ ii. 591; Mommsen, _Röm. Staatsr._ ii.
322, n. 4.

[1954] Cf. Plautus, _Capt._ 476.

[1955] 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.

[1956] Livy xliii. 7 f. With this trial was concerned the senatus
consultum of 170; cf. Bruns, _Font. iur._ p. 162. See further Lange,
_Röm. Alt._ ii. 287, 591; Mommsen, _Röm. Staatsr._ ii. 322, n. 3; cf. i.
699 f.

[1957] P. 358.

[1958] P. 231 f.

[1959] Fest. 193. 21; 314. 33; cf. Lange, _Röm. Alt._ ii. 591.

[1960] Livy, ep. xlvii; cf. Lange, ibid. ii. 313, 591.

[1961] P. 359.

[1962] Plut. _Ti. Gracch._ 14; cf. Greenidge, _Hist. of Rome_, i. 131 f.;
Klebs, in Pauly-Wissowa, _Real-Encycl._ i. 2270.

[1963] Fest. 314. 30; cf. Livy, ep. lviii.

[1964] P. 256 f.

[1965] Vell. 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.

[1966] P. 391.

[1967] Ascon. 80; Cic. _Caecil._ 20. 67; _Verr._ ii. 47. 118 (in both
Ciceronian passages the motive of the accusation is said to have been
personal); cf. Lange, _Röm. Alt._ ii. 592; iii. 70; Mommsen, _Röm.
Staatsr._ ii. 320, n. 3.

[1968] Ascon. 1; Cic. _Deiot._ 11. 31; Val. Max. vi. 5. 5; Dio Cass.
Frag. 92. A personal motive is suggested for this trial also by the
sources.

[1969] Cf. Münzer, in Pauly-Wissowa, _Real-Encycl._ v. 1324-7.

[1970] Dio Cass. Frag. 95. 3; App. _B. C._ i. 33. 148; Schol. Bob. 230;
Cic. _Rab. Perd._ 9. 24; _Flacc._ 32. 77; Val. Max. viii. 1. damn.
2; Lange, _Röm. Alt._ ii. 592; iii. 86; Mommsen, _Röm. Staatsr._ ii.
323, n. 1; Mühl, _App. Sat._ 94 ff., 105 f.; Rohden, in Pauly-Wissowa,
_Real-Encycl._ ii. 259.

[1971] P. 257, n. 5 (4). Greenidge, _Leg. Proced._ 352, holds the unusual
opinion that he was condemned by a quaestio.

To the time shortly preceding the dictatorship of Sulla belong certain
threats of tribunician prosecution which may be mentioned here. In 87 a
day was set for the trial of L. Cornelius Sulla himself by the tribune
M. Vergilius. The accused, taking no notice of the prosecution, departed
for the East; Cic. _Brut._ 48. 179; Plut. _Sull._ 10; cf. Fröhlich, in
Pauly-Wissowa, _Real-Encycl._ iv. 1537. In the same year Appius Claudius
Pulcher, summoned to trial by a tribune of the plebs, retired into exile,
whereupon his propretorian imperium was abrogated; Cic. _Dom._ 31. 83;
Münzer, in Pauly-Wissowa, _Real-Encycl._ iii. 2489; Greenidge, _Leg.
Proced._ 352. In 84 Cn. Papirius Carbo, consul, was threatened with a
prosecution, or more strictly with an abrogation of his office, if he
should fail to return to Rome to hold the election of a colleague; App.
_B. C._ i. 78. 358 f.

[1972] P. 414.

[1973] Plut. _Lucull._ 37; Lange, _Röm. Alt._ iii. 221; Greenidge, _Leg.
Proced._ 353.

[1974] Suet. _Caes._ 23; cf. p. 377 below.

[1975] Dio Cass. xliv. 10.

[1976] Whether the case against Rabirius in 63, begun as perduellio, was
transformed into a finable action is uncertain; p. 258. The attack of
Clodius on Cicero in 58 took the form, not of a judicial case, but of an
interdict through a plebiscite; p. 446.

[1977] P. 291.

[1978] Fest. 238. 28; Varro, _L. L._ v. 158; Ovid, _Fast._ v. 283 ff.;
Tac. _Ann._ ii. 49.

[1979] Livy xxxiii. 42. 10.

[1980] Livy xxxv. 10. 11.

[1981] Livy xxxv. 41. 9.

[1982] Livy xxxviii. 35. 5 f.

[1983] Piso, in Pliny, _N. H._ xviii. 6. 41; Serv. _in Ecl._ viii. 99;
Mommsen, _Röm. Staatsr._ ii. 493, n. 2.

[1984] Val. Max. vi. 17; Plut. _Marcell._ 2; Lange, _Röm. Alt._ i. 823;
ii. 585.

[1985] Livy xxv. 2. 9; cf. Lange, _Röm. Alt._ ii. 585. The statement of
Gellius v. 19. 10, that women had nothing to do with comitia (“Feminis
nulla comitiorum communio 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, _Röm. Staatsr._ ii. 496.

[1986] Plut. _Q. R._ 6; Lange, _Röm. Alt._ i. 126; ii. 585.

[1987] Ateius Capito, in Gell. iv. 14.

[1988] P. 248, 317.

[1989] Ateius Capito, in Gell. x. 6; Livy, ep. xix; Val. Max. viii.
1. damn. 4; Suet. _Tib._ 2; Mommsen, _Röm. 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.

[1990] Suet. _Tib._ 2.

[1991] Lange, _Röm. Alt._ ii. 586; Mommsen, _Röm. Staatsr._ ii. 496.

[1992] Cic. _Rosc. 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, _Röm. Staatsr._ ii. 493, n. 4.

[1993] _Verr._ i. 12. 36; v. 58. 151; 67. 173; 69. 178; 71. 183.

[1994] Cf. Lange, _Röm. Alt._ ii. 586.

[1995] Cic. _Q. Fr._ ii. 3; _Sest._ 44. 95; _Vat._ 17. 40; Ascon. 49; Dio
Cass. xxxix. 18 ff.; Lange, _Röm. Alt._ ii. 586; Mommsen, _Röm. Staatsr._
ii. 493, n. 1; Greenidge, _Leg. Proced._ 341, 353.

On the aedilician jurisdiction in general, see especially Girard, _Org.
jud. d. Rom._ 243 ff.

[1996] P. 269, 287.

[1997] Wissowa, _Relig. u. Kult. d. Römer_, 439 f.; Mommsen, _Röm.
Staatsr._ i. 195 f.; ii. 36.

[1998] Livy xxxvii. 51. 4 f.

[1999] Livy xl. 42. 9 f.

[2000] Cic. _Phil._ xi. 8. 18.

[2001] Fest. 343. 6; Wissowa, _Relig. u. Kult. d. Römer_, 439, n. 8. For
the pontifical cases above mentioned, see also Lange, _Röm. Alt._ ii.
593-5.

[2002] Cf. ch. v and p. 322.

[2003] P. 313 f.

[2004] P. 307.

[2005] P. 107, 113.

[2006] 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.

[2007] 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.

[2008] P. 235, 300.

[2009] 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, _Röm. Alt._ i. 409; ii. 216, 654;
Herzog, _Röm. Staatsverf._ i. 281 f. Willems, _Sén. Rom._ ii. 69 ff.,
attempts to assign it to 338.

[2010] Livy x. 15. 7 ff.; Cic. ibid.

[2011] Dion Hal. xix, 16. 5 (xviii. 19); xx. 13 (3). 3.

[2012] In this year C. Marcius Rutilus, elected censor a second time
(_Fast. cos. capit._, in _CIL._ i². p. 22), persuaded the people to
adopt this law; Val. Max iv. i. 3; Plut. _Cor._ 1; Lange, _Röm. Alt._ I.
797; ii. 122, 654; Herzog, _Röm. Staatsverf._ i. 317-20; Mommsen, _Röm.
Staatsr._ i. 520.

[2013] 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, _Röm. Staatsr._ ii.
532, n. 3; Lange, _Röm. Alt._ ii. 654. See further on the act of 267,
Mommsen, ibid. ii. 527, 570 ff.; Lange, ibid. i. 891; ii. 124.

[2014] Livy, ep. xix; Lyd. _Mag._ i. 38, 45.

[2015] Val. Max ii. 8. 2; Zon. viii. 17. 1; 18. 10; Polyb. ii. 23. 5.

[2016] P. 307, n. 1, 312.

[2017] Fest. 347. 3; cf. Lange, _Röm. Alt._ i. 884, 910; ii. 654;
Mommsen, _Röm. Staatsr._ ii. 594 f.; Girard, _Organ. jud. d. Röm._ i. 263
ff.

[2018] Pliny, _N. H._ vii. 43. 141; cf. Polyb. vi. 16. 3.

[2019] 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, _Röm. Priv.
Law_, ii. 186. The law is the subject of _Dig._ ix. 2 f.; Justinian,
_Inst._ iv. 3; Theoph. _Inst._ iv. 3. Voigt, _Röm. 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, _Röm. 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. 1.
1. 15. Voigt, _Röm. Rechtsgesch._ i. 39, n. 18, assigns it to the time
closely following the decemviral legislation; cf. Cuq, in Daremberg et
Saglio, _Dict._ iii. 1158.

The lex Mamilia concerning arbitri, but not more definitely known (Cic.
_Leg._ i. 21. 55), may belong to the consul C. Mamilius, 239.

[2020] Gaius iii. 210, Poste’s rendering; cf. also the following §§;
Justin. _Inst._ iv. 3. 15.

[2021] Gaius iii. 215, 217; cf. Ulpian, in _Dig._ vii. 1. 13. 2; Cic.
_Brut._ 34. 131.

[2022] 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.

[2023] P. 213, 215.

[2024] Cato, _Orig._ ii. 10 (in Varro, _R. R._ i. 2. 7): “Ager
Gallicus Romanus vocatur, qui viritim cis Ariminum datus est ultra
agrum Picentium”; Cic. _Brut._ 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.

[2025] Cf. Cic. _Inv._ ii. 17. 52; Val. Max. v. 4. 5.

[2026] Cic. _Acad. Pr._ ii. 5. 13; Val. Max. ibid.

[2027] _Senec._ 4. 11.

[2028] Cf. Lange, _Röm. Alt._ ii. 149.

[2029] Kubitschek, _Röm. trib. or._ 26 f.; Mommsen, _Röm. Staatsr._ iii.
176.

[2030] II. 21. 8. On this law in general, see further Ihne, _Hist. of
Rome_, ii. 125-7; iv. 26 f.; Herzog, _Röm. Staatsverf._ i. 344 ff.; Long,
_Rom. Rep._ i. 157 f.; Ferrero, _Rome_, i. 15.

[2031] Zon. viii. 20. 7; Plut. _Marcell._ 4; cf. Livy xxi. 63. 2.

[2032] Livy xlv. 35. 4.

[2033] 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. 1; Plut. _Aemil._ 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; Sall. _Hist._ ii. 21; Gell. x.
20. 10; Plut. _Pomp._ 13; Lange, _Röm. 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. Magistrates 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.

[2034] P. 307.

[2035] Polyb. vi. 16. 3.

[2036] Livy xxi. 63. 3; cf. Herzog, _Röm. Staatsverf._ i. 353, 898;
Nitzsch, _Röm. Rep._ i. 156 f.

[2037] Ascon. 94; Dio Cass. lv. 10. 5; Lange, _Röm. Alt._ ii. 162, 657;
Herzog, _Röm. Staatsverf._ i. 898.

[2038] App. _B. C._ 1. 7. 29; Plut. _Ti. Gracch._ 8.

[2039] 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.

[2040] P. 90.

[2041] Zon. viii. 26. 14.

[2042] Pliny, _N. H._ xxxiii. 3. 47.

[2043] Böckh, _Metrologische Utersuchungen_, p. 472; Mommsen-Blacas,
_Hist. d. monn. Rom._ ii. 67, n. 1; Lange, _Röm. Alt._ i. 496; ii. 167,
674; Herzog, _Röm. Staatsverf._ i. 365; Kubitschek, in Pauly-Wissowa,
_Real-Encycl._ ii. 1511; Samwer-Bahrfeldt, _Röm. Münzw._ 190 f.

[2044] Livy xxiii. 21. 6; cf. Ihne, _Hist. of Rome_, ii. 289.

[2045] Livy xxiv. 18. 12; xxvi. 36. 8.

[2046] Livy xxxvii. 51. 10; cf. Lange, _Röm. Alt._ ii. 173 f.; Herzog,
_Röm. Staatsverf._ i. 365.

[2047] Cf. Livy xli. 27; Polyb. vi. 17.

[2048] Livy xxv. 7. 5 f.

[2049] Livy xxvii. 11. 8.

[2050] Tab. x, in Schöll, _Duod. Tab. Rel._ 153 ff.; Marquardt, _Privatl.
d. Röm._ 345.

[2051] _Mil._ 164; Hor. _Od._ iii. 24. 58; Ovid, _Trist._ ii. 471
ff.; cf. Cic. _Phil._ ii. 23. 56; Pseud. Ascon, 110; Hartmann, in
Pauly-Wissowa, _Real-Encycl._ i. 1359. It remained 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.).

[2052] Lange, _Röm. Alt._ ii. 663, 670.

[2053] Fest. 246. 32; Lange, _Röm. Alt._ ii. 662.

[2054] Pliny, _N. H._ xxxv. 17. 197. A M. Metilius was tribune in 217.

[2055] _Röm. Alt._ ii. 161 f., 670; cf. Herzog, _Röm. Staatsverf._ i. 354.

[2056] Livy xxxiv. 1 ff.; Tac. _Ann._ iii. 33 f.; Oros. iv. 20. 14; Zon.
ix. 17; cf. Ihne, _Hist. of Rome_, ii. 290.

[2057] 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.

[2058] Polyb. vi. 56; Plut. _Rom._ 13.

[2059] Livy xxxiv. 4. 9: “Vectigalis iam et stipendiaria plebs esse
senatui coeperat.”

[2060] Livy xxii. 1. 19; Wissowa, _Relig. u. Kult. d. Röm._ 170.

[2061] _Sat._ i. 7. 33.

[2062] Livy xxvii. 20. 11.

[2063] Livy xxix. 20. 11.

[2064] Livy xxxiv. 4. 9; Cic. _Senec._ 4. 10; _Orat._ ii. 71. 286;
_Att._ 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 conferant Vaticana fragmenta ad melius
cognoscendum ius Romanum_, 112 ff.; Herzog, _Röm. Staatsverf._ i. 366;
Garofalo, in _Bull. dell’ ist. di diritt. Rom._ xv (1903). 310-2. In
the opinion of Lange, _Röm. Alt._ ii. 191, the law may have resulted
in part from the selfishness of the rich, with a view to checking the
presentation of gifts among themselves.

[2065] Cic. _Leg._ iii. 4. 11; _Lex Iul. Col. Gen._ 93; Mommsen, _Ephem.
Ep._ ii. 139; Bruns, _Font. Iur._ p. 123.

[2066] Vat. Frag. 294, 298-309; Paulus, _Sent._ v. 11. 6; Roby, _Rom.
Priv. Law_, i. 526 f.

[2067] 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, extended 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, _Röm. Rechtsgesch._ ii. 594; _Röm. Civilprocess_,
230 ff.; Voigt, _Röm. Rechtsgesch._ i. 44 ff. On the probable date,
Lange, _Röm. Alt._ see indices, s. v.—The lex Crepereia, having to do
with a legis actio before the centumviral 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, _Röm. 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, _Röm. Alt._ ii. 660, assigns the lex Atinia on
the usucapio of stolen property; Gell. xvii. 7; Just. _Inst._ 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.

[2068] Livy xx, Frag.; Krüger and Mommsen, in _Hermes_, iv (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.

[2069] Ulpian, Frag. v. 6; cf. _De gradibus cognationum_.

[2070] Plut. _Q. R._ 6; Livy xlii. 34. 2 (case of a man’s marrying his
cousin shortly after the war with Hannibal); Lange, _Röm. Alt._ i. 126;
ii. 659 f.; Marquardt, _Privatl. d. Röm._ 30 f.

[2071] Livy xxxix. 9. 7.

[2072] Lange, _Röm. Alt._ ii. 659 f.

[2073] Cf. Lange, ibid. i. 231; Karlowa, _Röm. Rechtsgesch._ ii. 27. It
supplemented the Twelve Tables, v. 1 f. (Gaius i. 144; ii. 47; Schöll,
_Duod. Tab. Rel._ 126).

[2074] Cic. _Off._ iii. 15. 61; _N. D._ iii. 30. 74; Varro, _L. L._ vi.
5; _Lex Iul. Munic._ 112.

[2075] Plaut. _Pseud._ 303; _Rud._ 1382.

[2076] The author may have been the Plaetorius who carried a law
concerning the urban praetor; p. 342, n. 1; Karlowa, _Röm. 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.

[2077] Livy xxiii. 31. 10.

[2078] P. 310.

[2079] Livy xxvi. 33. 10-4. For the decree of the plebs, § 14: “Quod
senatus iuratus, maxima pars, censeat, qui adsient, id volumus
iubemusque.”

[2080] Ibid. ch. 34.

[2081] Livy xxii. 10. 1.

[2082] It is given in full by Livy xxii. 10; cf. xxxiii. 44. 1 f.; xxxiv.
44. 1-3.

[2083] 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 Capitoline 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,
_Caes._ 15; Dio Cass. xxxvii. 44. 2.

[2084] In consequence of a pestilence a pretorian law of P. Licinius
Varus, 208, placed the games in honor of Apollo in the class called
stativi—those which were celebrated annually on stated days; Livy xxvii.
23. 7; xxx. 38. 10 f.; cf. Wissowa, _Relig. u. Kult. d. Röm._ 241;
Fowler, _Roman Festivals_, 179 f.

[2085] 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 stagnation 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, _Röm. Staatsr._ ii. 27 f.; Wissowa, _Relig. u. Kult. d.
Röm._ 437; Lange, _Röm. Alt._ ii. 131. Pais, _L’elezione 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.

[2086] The first recorded instance occurs at the date mentioned; Livy
xxvii. 8. 1-3.

[2087] Cf. Cic. _Sest._ 46. 98.

[2088] P. 391.

[2089] P. 234, 305, 306.

[2090] Livy, ep. xx; _Dig._ i. 2. 2. 32. Lange, _Röm. Alt._ i. 784; ii.
152, 654, conjecturally 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.

[2091] 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 militum (Livy xliii. 31)—a precedent followed
thereafter in emergencies.

[2092] P. 305; Polyb. vi. 15. 6.

[2093] Livy xxvii. 22. 6. On the comparatively frequent use of the
promagistracy during the war with Hannibal, see Ihne, _Hist. of Rome_,
iv. 310.

[2094] Livy xxii. 25; Herzog, _Röm. Staatsverf._ i. 355.

[2095] Polyb. iii. 87. 6; Livy xxii. 8. 5 f.

[2096] Cf. Herzog, ibid. i. 358 f.; Mommsen, _Röm. Staatsr._ ii. 169.

[2097] 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.

[2098] P. 360.

[2099] Livy xxvii. 21. 10; xxx. 19. 9.

[2100] Lange, _Röm. Alt._ i. 850, 861; ii. 151, 654.

[2101] 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.

[2102] Cf. Herzog, _Röm. Staatsverf._ i. 369.

[2103] VI. 11. 1.

[2104] VI. 51. 3.

[2105] Ibid. § 5.

[2106] Ibid. § 7.

[2107] Polyb. vi. 56.

[2108] Ibid. 11. 11.

[2109] VI. 18.

[2110] VI. 12.

[2111] VI. 13.

[2112] P. 217, n. 5.

[2113] 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.

[2114] Polyb. vi. 14.

[2115] Polyb. vi. 12. 4.

[2116] VI. 15. 9 f.

[2117] Ibid. § 11.

[2118] VI. 16. 1 f. 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.

[2119] VI. 16. 3. Doubtless he has in mind the Claudian statute of 219;
p. 335.

[2120] VI. 16. 4 f.

[2121] VI. 17. 9.

[2122] P. 33, 173.

[2123] Polyb. vi. 18. 5-8; Sall. _Iug._ 41.

[2124] Livy xxxii. 27. 6. A law may be assumed for this act.

[2125] Livy xl. 44. 2; cf. Mommsen, _Röm. Staatsr._ ii. 198, n. 4; more
accurately, Lange, _Röm. Alt._ ii. 259, 655; Klebs, in Pauly-Wissowa,
_Real-Encycl._ ii. 2728.

[2126] Cf. Arnold, _Rom. Prov. Administr._ 47.

[2127] Cato, _Orat._ xxv; Fest. 282. 28; Non. Marc. 470; Livy xl. 59. 5.

[2128] Livy xxxiii. 42. 1; cf. Cic. _Orat._ iii. 19. 73; Lange, _Röm.
Alt._ ii. 211 f., 675; Wissowa, _Relig. u. Kult. d. Röm._ 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, _Röm.
Staatsr._ ii. 621, n. 1.

[2129] Livy xl. 44. 1. Cf. in general on the leges annales, Fest. ep. 27;
Cic. _Phil._ v. 17. 47; _Leg._ iii. 3. 9; Ovid, _Fast._ v. 65 f.; 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, _Röm. Staatsr._ i. 529, n. 1.

[2130] 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, _Röm. Staatsr._ i. 526 f.

[2131] Cic. _Phil._ v. 17. 47.

[2132] Cf. Plut. _Cat. Mai._ 8.

[2133] Wex, in _Rhein. Mus._ iii (1845). 276-88; Nipperdey, in _Abhdl.
sächs. Gesellsch. d. Wiss. zu Leipzig_, v. (1870). 1-88; Lange, _Röm.
Alt._ i. 707; ii. 259-61, 655; Mommsen, _Röm. Staatsr._ i. 529 f., 537;
Herzog, _Röm. Staatsverf._ i. 386 f., 664 ff.; Madvig, _Röm. Staat._ i.
335 ff.; Kübler, in Pauly-Wissowa, _Real-Encycl._ iv. 1114.

[2134] They were not in force in 196 (Livy xxxiii. 42. 1) or in 194 (Livy
xxxiv. 53. 1 f.; 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, _Röm. Alt._ i. 919; ii. 315 f.,
655; Herzog, _Röm. Staatsverf._ i. 835. Mommsen, _Röm. Staatsr._ i. 501,
thinks they may have resulted from the Gracchan agitation.

[2135] _CIL._ i². p. 146; Obseq. 18.

[2136] _Orat._ xxxvi.

[2137] Livy, ep. lvi (mentioned in connection with the year 134); Long,
_Rom. Rep._ i. 85-7. Long does not consider the date settled; but see
Mommsen, _Röm. Staatsr._ i. 521; Greenidge, _Hist. of Rome_, i. 485;
Kübler, in Pauly-Wissowa, _Real-Encycl._ iv. 1117.

[2138] Lange, _Röm. Alt._ i. 712; ii. 316, 655.

[2139] Livy xl. 19. 11; Schol. Bob. 361; Lange, _Röm. Alt._ i. 717; ii.
257, 663; Ihne, _Hist. of Rome_, iv. 92; Herzog, _Röm. Staatsverf._
i. 391; Hartmann, in Pauly-Wissowa, _Real-Encycl._ i. 1801, Mommsen,
_Strafr._ 867, n. 2.

[2140] Polyb. vi. 56. 4; Livy, ep. xlvii; Lange, _Röm. Alt._ i. 717; ii.
312, 663; Ihne, _Hist. of Rome_, iv. 92; Hartmann, ibid.

[2141] 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 “a populo” respectively; Fest. 261. 29; ep. 260; cf. Livy vii. 5.
9; xxvii. 36. 14; Marquardt, _Röm. Staatsv._ ii. 365.—The rogation of
Ti. Sempronius, tr. pl. in 167, for granting the imperium to certain
promagistrates for the day of their triumph has been considered above; p.
335, n. 2.

[2142] _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,
_Röm. Alt._ ii. 207, 673; Ihne, _Hist. of Rome_, iv. 307.

[2143] Cato, _Orat._ lxix, in Gell. xx. 2. 1; cf. Livy xxxii. 8. 3; xli.
14. 11; Lange, _Röm. Alt._ ii. 280, 673.

[2144] 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 111; _CIL._ i. 200. 81; cf. Mommsen, _Röm. Staatsr._ ii.
643; Marquardt, _Röm. Staatsv._ i. 465.

[2145] Livy xxxiii. 25. 6. A lex Maevia, seemingly on Asiatic affairs,
supported by Cato but otherwise unknown, belongs perhaps to 189; Cato,
_Orat._ lxxv.

[2146] Livy, ep. xlix; new ep. l. 98-100; Cic. _Brut._ 23. 89; _Att._
xii. 5. 3; Val. Max. viii. 1. absol. 2.

[2147] Cic. _Off._ iii. 30. 109.

[2148] Livy xl. 38. 9; cf. 59. 1 (179 B.C.).

[2149] Val. Max. ii. 8. 1; Oros. v. 4. 7; cf. Cic. _Pis._ 26. 62; Livy
xxxvii. 46. 1 f.; xl. 38. 9; Gell. v. 6. 21; Lange, _Röm. Alt._ ii. 262,
676; Mommsen, _Röm. Staatsr._ i. 133.

[2150] P. 293.

[2151] Livy xxxii. 29. 3 f. These colonies were actually founded in 194;
Livy xxxiv. 45. 1; Vell. i. 15. 3.

[2152] Livy xxxiv. 53. 1 f. The former was founded in 192; Livy xxxv. 40.
5.

[2153] _Lex Agr._ of 111, in _CIL._ i. 200. 43; Livy xxxiv. 45.

[2154] Livy xxxvii. 57. 7.

[2155] Livy xxxix. 55. 5. On the colonies of 181, see Livy xl. 29. 1; 34.
2; Vell. i. 15; _CIL._ i. 538, in which nothing is said either of the
senate or of the people.

[2156] I. 41. 1.

[2157] P. 307, 311.

[2158] It was in the capacity of administrator of public property that
the senate controlled this field. The only other instance of popular
legislation in this period touching state economy was the plebiscite of
M. Lucretius, 172 (Livy xlii. 19. 1 f.; cf. xxvii. 11. 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. 16. 6) as a rebuke to the censors for their
arbitrary management of the business. 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.

[2159] Livy xxxv. 7; cf. Lange, _Röm. Alt._ ii. 221, 660.

[2160] A rogatio Iunia concerning usury, known only through Cato’s
opposition to it (_Orat._ vi), belongs to this period—perhaps to 195
(Livy xxxiv. 1. 4; xxxv. 41. 9 f.) or to 191 (Livy xxxvi. 2. 6).

[2161] Livy, ep. xli.

[2162] Cic. _Verr._ II. i. 41. 104 ff.; _Rep._ iii. 10. 17; Gaius ii.
274; Dio Cass. lvi. 10. 2; Pseud. Ascon. 188; Gell, vi (vii). 13; xx. i.
23; p. 90 above.

[2163] Gaius ii. 226 and Poste’s comment; Lange, _Röm. 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, _Röm. Rechtsgesch._ ii. 940 ff.
Voigt, _Röm. Rechtsgesch._ i. 502, places the lex Furia between 203 and
170.

[2164] Cato, _Orat._ lxviii, lxxv; Lange, _Röm. Alt._ ii. 660; Voigt,
_Die lex Maenia de dote vom Jahre 568 der Stadt_; _Röm. Rechtsgesch._
i. 789-801, attempts to determine the contents as well as the date; cf.
Arndts, in _Zeitschr. f. Rechtsgesch._ vii (1868). 1-44.

[2165] Livy xxxvii. 36. 7 f.; cf. Cic. _Verr._ II. i. 5. 13.

[2166] Ibid. § 9; p. 57 f., 334 above.

[2167] P. 340.

[2168] Livy xxxviii. 36. 5 f.

[2169] Cic. _Brut._ 20. 79; cf. Mommsen, _Röm. Staatsr._ iii. 135, n. 1.

[2170] A pretorian law of Valerius Flaccus, 98, for the purpose is
mentioned by Cic. _Balb._ 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.

[2171] Cic. _Balb._ 9. 24.

[2172] Cf. the bestowal of citizenship upon the Carthaginian Muttines by
a plebiscite ex auctoritate patrum in 210; Livy xxvii. 5. 7; Varro, in
Ascon. 13.

[2173] See the literature on the ius postliminii in Schiller, _Röm.
Staatsalt._ 618. There were certain cases of restoration of citizenship,
however, which were thought to require a comitial vote; Cic. _Balb._ 11.
28. But on this question opinions differed; cf. Mommsen, _Röm. Staatsr._
iii. 656, n. 1.

[2174] Cf. the lex Plautia Papiria, in Cic. _Arch._ 4. 7: “Data est
civitas Silvani lege et Carbonis: Si qui foederatis civitatibus adscripti
fuissent, si tum, cum lex ferebatur, in Italia domicilium habuissent et
si sexaginta diebus apud praetorem essent professi”; also _Balb._ 8.
19 (singillatim); _CIL._ ii. 159; iii. 5232 (viritim); Mommsen, _Röm.
Staatsr._ iii. 132.

[2175] Gell. xvi. 13. 6; Cic. _Balb._ 8. 21. Heraclea and Naples
preferred their freedom; Cic. ibid.; _Fam._ xiii. 30. 1.

[2176] Mommsen, _Röm. Staatsr._ iii. 133.

[2177] This spirit expressed itself in the lex Minicia of unknown date,
though probably 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 follow the condition of the alien parent; Gaius i.
78 f.; Ulp. v. 8; Karlowa, _Röm. Rechtsgesch._ ii. 182.

[2178] Livy xxxix. 3. 5 f.

[2179] Livy xli. 9. 9-11; Neumann, _Gesch. Roms_, i. 21, 115; Herzog,
_Röm. Staatsverf._ i. 964, n. 1; Meyer, _Gesch. d. Gracch._ 92, n. 1.

[2180] Mommsen, _Röm. Staatsr._ iii. 435 f.; cf. however Lange, _Röm.
Alt._ ii. 27; Herzog, _Röm. Staatsverf._ i. 993.

[2181] Lange, _Röm. Alt._ i. 705; ii. 27.

[2182] Livy ix. 46; Plut. _Mar._ 5.

[2183] Livy xxxix. 19. 5 f.; Cic. _Sest._ 52. 110; _Phil._ ii. 2. 3.
A law of Augustus, 18 B.C., permitted all excepting senators to marry
freedwomen; Dio Cass. liv. 16. 2; lvi. 7. 2. Conubium had not been
impossible, but had been considered disgraceful both by society and by
the law.

[2184] Cf. Livy x. 21. 4; Lange, _Röm. Alt._ i. 515; ii. 27; p. 60 above.

[2185] P. 334.

[2186] Livy, ep. xx; cf. Mommsen, _Röm. 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 censorship of Flaminius (Herzog, _Röm.
Staatsverf._ i. 995) or far less probably to the one immediately
preceding. On the city tribes, see p. 64.

[2187] P. 205 f.

[2188] Suet. _Claud._ 24; Livy vi. 46. 6; Pliny, _N. H._ xxxiii. 2. 32;
cf. Mommsen, _Röm. Staatsr._ iii. 422; Herzog, ibid. i. 977.

[2189] Plut. _Flamin._ 18.

[2190] Lange, _Röm. Alt._ ii. 234; Mommsen, _Röm. Staatsr._ iii. 436
f. This interpretation seems necessary notwithstanding Herzog, _Röm.
Staatsverf._ i. 884.

[2191] As in 217; Livy xxii. 11. 8.

[2192] In general, see Ihne, _Hist. of Rome_, iv. 26-38; Mommsen,
_Röm. Staatsr._ iii. 420 ff.; Herzog, _Röm. Staatsverf._ i. 976 ff.,
992 ff.; Lange, _Röm. Alt._, see index, s. Libertini. On the censorial
distribution of the libertini in 179, see p. 85, n. 3.

[2193] P. 338.

[2194] Lange, _Röm. Alt._ ii. 174, 211, 670; Ferrero, _Rome_, i. 23.

[2195] Macrob. _Sat._ iii. 17. 2; Diod. xxxvii. 3. 5; Ferrero, _Rome_, i.
23; Herzog, _Röm. Staatsverf._ i. 425.

[2196] Macrob. ibid. § 3; Schol. Bob. 310; Fest. 242. 12.

[2197] Fest. 201. 31; Cato, _Orat._ xxvii.

[2198] Gell. ii. 24. 3; Macrob. _Sat._ iii. 17. 3-5; Athen. vi. 274 C.

[2199] Pliny, _N. H._ x. 50. 139.

[2200] Macrob. _Sat._ iii. 17. 6.

[2201] The author may, as Lange, _Röm. 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.

[2202] Pliny, _N. H._ viii. 17. 64.

[2203] Cic. _Cornel._ i. 25 (Frag. A. vii); Ascon. 69.

[2204] Livy xxxiv. 44. 4.

[2205] 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.

[2206] P. 253 ff.

[2207] Cic. _Off._ ii. 21. 75.

[2208] Cic. _Rab. Perd._ 3. 8.

[2209] _Dig._ xlviii. 15.

[2210] _Curc._ 621 f.; _Merc._ 664 f.

[2211] In _Verhdl. d. sächs. Gesellsch. d. Wiss._ xxxvii (1885). 320.

[2212] Ibid. 327.

[2213] _Röm. Alt._ ii. 663; cf. _CIL._ i². p. 144.

[2214] _Röm. Strafr._ 780, n. 4.

[2215] _Declam. in Cat._ 19. Lange, _Röm. Alt._ ii. 664 f., prefers to
assign it to the tribune of 139; Mommsen, _Röm. Strafr._ 563, n. 4,
doubts its existence.

[2216] Cic. _Fam._ viii. 12. 3; 14. 4; Suet. _Dom._ 8. 3 (Scantinius;
Ihm); Juv. ii. 44; Quint. _Inst._ iv. 2. 69. Voigt, in _Verhdl. d. sächs.
Gesellsch. d. Wiss._ xlii (1890), 273, assigns it to 226 or 225. Lange,
_Röm. Alt._ ii. 667 f., places it between 227 and 50. The date 149
rests upon W. W. Fowler’s restoration of the new epitome, 115 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.

[2217] 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, _Röm. Alt._ ii. 321 f., 664; Greenidge, _Leg. Proced._ 419.

[2218] In general the leges repetundarum were for the protection of Italy
as well as of the provinces; cf. p. 376, 377, 442.

[2219] Lengle, _Sull. Verf._ 17; Greenidge, _Leg. Proced._ 415 f.

[2220] P. 255, n. 1 (3).

[2221] Macrob. _Sat._ i. 13. 21; Censor, xx. 6. f.; Livy xliii. 11. 3;
Lange, _Röm. Alt._ i. 353; ii. 223, 676; Mommsen, _Röm. Chron._ 40 ff.;
Matzat, _Röm. Chron._ i. 46.

[2222] P. 116; cf. Ihne, _Hist. of Rome_, iv. 308 f.

[2223] Schol. Bob. 319; cf. Cic. _Sest._ 26. 56: “De tempore legum
rogandorum.”

[2224] Livy, new ep. liv. 193 f.: “A. Gabinius verna(e ... rogationem
tulit) suffragium per ta(bellam ferri),” indicates servile descent.

[2225] Cic. _Leg._ iii. 16. 35; cf. 15. 34; _Amic._ 12. 41; _Leg. Agr._
ii. 2. 4.

[2226] 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, _Röm. Alt._ ii. 658; Herzog, _Röm.
Staatsverf._ i. 422; Ihne, _Hist. of Rome_, iv. 340 f.

[2227] Cic. _Rosc. Am._ 30. 84; Ascon. 46; Val. Max. iii. 7. 9; cf. Cic.
_Brut._ 25. 97; Vell. ii. 10. 1; Val. Max. viii. 1. damn. 7.

[2228] Cf. Lange, _Röm. Alt._ ii. 344; Ihne, _Hist. of Rome_, iv. 94.

[2229] See especially Cic. _Leg._ iii. 15. 34: “Quis autem non sentit
omnem auctoritatem optimatium tabellariam legem abstulisse?”

[2230] P. 347.

[2231] P. 184.

[2232] App. _Lib._ 112 (White’s rendering); cf. Livy, ep. l.

[2233] Livy, ep. lvi; App. _Iber._ 84.

[2234] App. _Iber._ 83; cf. p. 188, n. 2, 342, 367.

[2235] Cic. _Amic._ 25. 96; Lange, _Röm. Alt._ ii. 335, 688.

[2236] Plut. _Ti. Gracch._ 8.

[2237] Polyb. vi. 18. 5-8 (Shuckburgh’s rendering).

[2238] The main part of his history was composed before the third war
with Carthage; Christ, W., _Gesch. d. griech. Litteratur_ (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.

[2239] 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.

[2240] P. 360 f.

[2241] 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.

[2242] _Orig._ v. 5.

[2243] 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 naturally to a repetition
than to the original enactment; p. 296, n. 4, 334, n. 1.

[2244] Plut. _Ti. Gracch._ 9.

[2245] 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. Ill._ 64. 3; Siculus Flacc. p. 136. 10 (CC is a corruption of ↀ).
See Herzog, _Röm. Staatsverf._ i. 450, n. 3; Greenidge, _Hist. of Rome_,
i. 114; Mommsen, in _CIL._ i. p. 87.

[2246] Plut. _Ti. Gracch._ 9; cf. Greenidge, ibid.

[2247] App. _B. C._ i. 11. 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.

[2248] Plut. _Ti. Gracch._ 9; App. _B. C._ i. 11.

[2249] _CIL._ i. 200. 14: “_Sei quis_ ... agri iugra non amplius xxx
possidebit habebitve.” In all probability this specification came
originally from the Sempronian law.

[2250] Mommsen, in _CIL._ i. p. 88; Plut. _Ti. Gracch._ 9; App. _B. C._
i. 27. 121; Weber, _Röm. Agrargesch._ 151.

[2251] 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 111 (_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. 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.

[2252] 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 cavitumque est nei divideretur.” The exceptions
numbered from a to g in the text above are taken from the agrarian law of
111. As these exceptions were made in the agrarian law of C. Gracchus, it
is here assumed that they were made previously by Tiberius.

[2253] _Lex Agr._ in _CIL._ i. 200. 31 f.; cf. Cic. _Leg. Agr._ i. 4. 10;
ii. 22. 58 (land held similarly in Africa).

[2254] Cf. Mommsen, in _CIL._ i. p. 90.

[2255] 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 Rome_, i. 113; Weber, _Röm. Agrargesch._ 149-51.
The word is derived from trientare, as stabulum from stare; Mommsen, in
_CIL._ i. p. 90.

[2256] _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, _Röm. Agrargesch._ 120 f.

[2257] Voigt, in _Abhdl. sächs. Gesellsch. d. Wiss._ x (1888). 229;
Greenidge, _Hist. of Rome_, i. 113.

[2258] _CIL._ ibid. 28.

[2259] _CIL._ 200. 1, 4, 6, 13, 22; cf. Cic. _Leg. Agr._ i. 7. 21; ii.
29. 81; _Att._ i. 19. 4; Mommsen, in _CIL._ i. p. 91; Greenidge, ibid.
112 f.

[2260] _CIL._ ibid. 24-6; Voigt, ibid. 227. The classification of public
land reserved from distribution by the agrarian law of 111 is that of
Mommsen, in _CIL._ i. p. 90 f.

[2261] Cic. _Leg. Agr._ ii. 12. 31; App. _B. C._ i. 9. 37; Livy, ep.
lviii.

[2262] They are so called in _Lex Lat. Bant._ 15, in _CIL._ i. 197; _Lex
Rep._ 13, 16, 22, ibid. 198; _Lex Agr._ 16, ibid. 200.

[2263] _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.

[2264] Plut. _Ti. Gracch._ 10; cf. Greenidge, _Hist. of Rome_, i. 121;
Strachan-Davidson’s explanation (_Appian_, p. 13) seems to be incorrect.

[2265] Livy, ep. lviii; Plut. _Ti. Gracch._ 10-3; App. _B. C._ i. 12 f.;
Cic. _N. D._ i. 38. 106.

[2266] Livy, ep. lviii; App. _B. C._ i. 13. 55; Vell. ii. 2. 3; Flor. ii.
2. 6.

[2267] P. 347 f.

[2268] Lange, _Röm. Alt._ iii. 13.

[2269] Livy, ep. lviii: “Promulgavit et aliam legem agrariam, qua sibi
latius agrum patefaceret, ut iidem triumviri iudicarent, qua publicus
ager, qua privatus esset.”

[2270] _CIL._ i. 552-5, 583; ix. 1024 f.

[2271] _B. C._ i. 19. 78 f. The context indicates that in Appian’s
opinion the people had nothing to do with the measure.

[2272] Lange, _Röm. 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.

[2273] P. 373 below. On the agrarian law of Ti. Gracchus, see further
Long, _Rom. Rep._ i. 159-91; Herzog, _Röm. Staatsverf._ i. 445-52; Ihne,
_Hist. of Rome_, iv. 382-400; Greenidge, _Hist. of Rome_, i. 110-28;
Neumann, _Gesch. Roms_, i. 156-84.

[2274] Livy, ep. lviii; Vell. ii. 2. 3: “Octavio collegae pro bono
publico stanti imperium abrogavit”; Plut. _Ti. Gracch._ 12; App. _B. C._
i. 12; Cic. _Leg._ iii. 10. 24; Dio Cass. Frag. 83. 4.

[2275] P. 360.

[2276] Cf. Lange, _Röm. Alt._ iii. 12; Ihne, _Hist. of Rome_, iv. 80,
395; Long, _Rom. Rep._ i. 185 ff. Greenidge, _Hist. of Rome_, i. 125-7,
and Pöhlmann, in _Sitzb. d. bayer. Akad._ 1907. 465 ff., contend for its
legality.

[2277] P. 233 f.

[2278] P. 255.

[2279] 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.

[2280] P. 360.

[2281] P. 307 f.

[2282] Livy, ep. lix; Cic. _Amic._ 25. 96.

[2283] _B. C._ i. 21. 90: Καὶ γάρ τις ἤδη νόμος κεκύρωτο εἰ δήμαρχος
ἐνδέοι ταῖς παραγγλείαις, τὸν δῆμον ἐκ πάντων ἐπιλέγεσθαι. 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 δήμαρχος,
stood in the law, it must have signified tribune, not candidate; and in
that case παραγγελίαις, however Appian may have understood it, must be
the equivalent of renuntiationibus, “announcements of votes.”

[2284] Cf. Strachan-Davidson, _Appian_, p. 23. It was under the second
contingency that C. Gracchus was reëlected 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, n. 3. Fowler’s suggestion (_Eng.
Hist. Rev._ xx. 217) that the law permitted but one reëlection of an
individual is on the whole unlikely.

[2285] Cic. _Leg._ iii. 16. 35; Herzog, _Röm. Staatsverf._ i. 461;
Greenidge, _Hist. of Rome_, i. 163 f.

[2286] The measure was being agitated at the time to which Cicero
referred the dialogue _On the Republic_, iv. 2; cf. Q. Cic. _Petit.
Cons._ 8. 33; Lange, _Röm. Alt._ ii. 657; iii. 25. On the Claudian law,
see p. 335 above.

[2287] P. 358.

[2288] _Lex Acil. Rep._ 23, 74, in _CIL._ i. 198; Zumpt, in _Abhdl. d.
Akad. zu Berlin_, 1845. 1-70, 475-515; Lange, _Röm. 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.

[2289] Cic. _Off._ iii. 11. 47; _Brut._ 28. 109; Fest. 286. 10; Long,
_Rom. Rep._ i. 237 f.; Greenidge, _Hist. of Rome_, i. 166 f.

[2290] App. _B. C._, i. 21, 34. 152; Val. Max. ix. 5. 1; Ihne, _Hist. of
Rome_, iv. 418-21; Long, ibid. 241; Herzog, _Röm. Staatsverf._ i. 462;
Greenidge, ibid. 167 ff.; Meyer, _Gesch. d. Gracch._ 93; Fowler, in _Eng.
Hist. Rev._ xx. 422.

[2291] In March, April, and May, according to Kornemann, _Gesch. d.
Gracch._ 44.

[2292] On the order of his enactments, see Lange, _Röm. Alt._ iii. 38;
Greenidge, _Hist. of Rome_, i. 210; Herzog, _Röm. Staatsverf._ 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 reëlection—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 enactments which belong to the latter part of his first
term.

[2293] P. 367.

[2294] Plut. _C. Gracch._ 4; Diod. xxxv. 25, 2; Fest. ep. 23 (abacti);
Lange, _Röm. Alt._ i. 655; iii. 30 f.; Greenidge, _Hist. of Rome_, i. 202.

[2295] P. 368.

[2296] P. 255 f. For the comitial interdict against Popillius, see p. 256.

[2297] Cf. Greenidge, _Hist. of Rome_, i. 204 f.; Fowler, _Eng. Hist.
Rev._ xx. 224.

[2298] Humbert, in Daremberg et Saglio, _Dict._ ii. 1346. For examples,
see Marquardt, _Röm. Staatsv._ ii. 114, and especially, Oliver, _Roman
Economic Conditions_, 61 ff.

[2299] Livy, ep. lx; App. _B. C._ i. 21. 89; Schol. Bob. 303; Vell. ii.
6. 3; Plut. _C. Gracch._ 5.

[2300] App. ibid. § 90; Diod. xxxv. 25; Cic. _Sest._ 48. 103.

[2301] 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.

[2302] 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.

[2303] Begun by his lex de provocatione; p. 371.

[2304] Placed before the frumentarian law by Lange, _Röm. Alt._ iii. 31.
Meyer, _Gesch. d. Gracch._ 95, n. 4, and Kornemann, _Gesch. d. Gracch._
43, hold the view represented above in the text.

[2305] Plut. _C. Gracch._ 9.

[2306] _CIL._ i. 200. 6, 22; cf. Lange, _Röm. Alt._ iii. 32.

[2307] P. 364 f., 386.

[2308] App. _B. C._ i. 23. 98; Plut. _C. Gracch._ 6 f.; cf. Voigt, in
_Verhdl. sächs. Gesellsch. d. Wiss._ xxiv (1872). 68 ff.

[2309] Livy, ep. lx; Mommsen, in _CIL._ i. p. 88.

[2310] 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.

[2311] Cf. App. _B. C._ i. 21 f.

[2312] App. _B. C._ i. 14. 58.

[2313] P. 358.

[2314] P. 345.

[2315] P. 368. The measure is referred to as a lex iudiciaria by Macrob.
_Sat._ iii. 14. 6.

[2316] 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, _Röm. 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 ὁ δὲ τριακοσίους τῶν ἱππέων
προσκατέλεξεν αὐτοῖς οὖσι τριακοσίοις, καὶ τὰς κρίσεις κοινὰς τῶν
ἑξακοσίωον ἐποίησε (cf. _Ag. et Cleom. et Gracch._ _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.

[2317] App. _B. C._ i. 22. 92; Vell. ii. 6. 3; 32. 3; Varro, in Non.
Marc. 454; Tac. _Ann._ xii. 60; Pseud. Ascon. 103, 145; Flor. ii. 1. 6;
5. 3 (iii. 13. 17); Diod. xxxv. 25; Plut. _C. Gracch._ 5; Livy, ep. lx;
cf. Lange, _Röm. Alt._ ii. 668; iii. 38-40; Herzog, _Röm. Staatsverf._ 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, _Röm.
Staat._ ii. 219-21.

[2318] This is true at least of the extraordinary quaestio established by
the Mamilian law of 110; Cic. _Brut._ 34. 128; cf. 33. 127; Schol. Bob.
311; Greenidge, _Leg. Proced._ 381 f., 435.

[2319] _CIL._ i. 198.

[2320] _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.”

[2321] 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.

[2322] 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 distinctly of a Sempronian law and an Acilian law.

[2323] Mommsen, _Röm. 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.

[2324] This idea would explain the fact that the extant fragments of the
lex Acilia contain no reference to a Sempronian lex iudiciaria.

[2325] Cic. _Verr._ i. 17. 51 f.; II. i. 9. 26; _Brut_. 68. 239; Pseud.
Ascon. 149, 165.

[2326] P. 370.

[2327] _CIL._ i. 198. Reference to the IIIviri 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. Akad. zu Berlin_, 1845. 1-70, 475-515; _Röm.
Criminalr._ i. 99 ff.; Huschke, in _Zeitschr. f. Rechtsgesch._ v (1866).
46-84; Hesky, in _Wiener_ _Studien_, xxv (1903). 272-87; Brassloff,
ibid. xxvi. 106-17; Lange, _Röm. Alt._ ii. 664; iii. 40; Mommsen, _Röm.
Staatsr._ iii. 642; _Röm. Strafr._ 708 f.; Greenidge, _Leg. Proced._
420; _Hist. of Rome_, i. 214, n. 2; Ruggiero, ibid. 41-4; Klebs, in
Pauly-Wissowa, _Real-Encycl._ i. 256.

[2328] _Lex Rep._ 2 f.; cf. 8 f.

[2329] _Lex Rep._ 1.

[2330] Vell. ii. 8. 1; cf. Cic. _Verr._ iii. 80. 184; Ruggiero, _Diz.
Ep._ i. 42.

[2331] _Lex Rep._ 8 f.

[2332] The principle was expressed in an article of the lex Memmia de
incestu of 111 (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. Livy x. 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
actions 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, _Röm. Rechtsgesch._ i. 282, n. 14,
inclines to assign it to 209 or 207.

[2333] _Lex Rep._ 19-26; Mommsen, _Röm. Strafr._ 216 f. Ruggiero, ibid.
43, is obviously wrong.

[2334] _Lex Rep._ 76-8; cf. 83-5.

[2335] § 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.

[2336] Cic. _Cluent._ 56. 154: “Illi (senatus) non hoc recusabant, ne ea
lege accusarentur, qua nunc Habitus accusatur, quae tum 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, _Sull. Verf._ 36 ff.;
cf. Lange, _Röm. Alt._ ii. 664.

[2337] P. 255, n. 1 (4), 358.

[2338] Cic. _Cluent._ 55. 151.

[2339] Ibid. 52. 144.

[2340] 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. Münzer, in Pauly-Wissowa, _Real-Encycl._ iv. 12.

[2341] 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 magistrates 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 interpretation of the known facts
seems preferable to the view of Cicero, which, however, is accepted by
most scholars; cf. Mommsen, _Röm. Strafr._ 635; Greenidge, _Leg. Proced._
421; _Hist. of Rome_, i. 216 f.

[2342] _CIL._ i. 197; Ritschl. _Prisc. lat. mon. epigr. tab._ xix.

[2343] Bruns, _Font. Iur._ p. 48-53; Girard, _Textes_, p. 26-9.

[2344] As indicated by the “Ioudex, quei ex hace lege plebeive scito
factus erit”; § 2.

[2345] Karlowa, _Röm. Rechtsgesch._ i. 431. Kirchhoff, _Stadtrecht von
Bantia_, 90-7, regards 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 Krüger-Brissaud, _Hist. d. source d. droit Rom._ 94.

[2346] Cic. _Verr._ iii. 6. 12; _Att._ i. 17. 9; Schol. Bob. 259; Vell.
ii. 6. 3; Gell. xi. 10; App. _B. C._ v. 4. 17 f.; Fronto, _Ad Verum_, p.
125; Lange, _Röm. Alt._ ii. 674 f.; iii. 34; Herzog, _Röm. Staatsverf._
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.

[2347] App. _B. C._ v. 4. 19; Diod. xxxv. 25.

[2348] App. _B. C._ i. 22. 94-7.

[2349] Varro, in Non. Marc. 454; Flor. ii. 5. 3 (iii. 17).

[2350] 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, _Röm. Alt._ ii. 675; iii. 35.

[2351] Cic. _Prov. Cons._ 2. 3; _Balb._ 27. 61; _Dom._ 9. 24; _Fam._
i. 7. 10; Sall. _Iug._ 27; Lange, _Röm. Alt._ iii. 41; Herzog, _Röm.
Staatsverf._ 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; Sall. _Iug._ 73; Gell. vii. 11. 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.

[2352] Cic. _Prov. Cons._ 7. 17.

[2353] Cf. Greenidge, _Hist. of Rome_, i. 222 f.

[2354] Lange, _Röm. Alt._ ii. 672.

[2355] P. 368.

[2356] 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 militares 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.

[2357] XXXV. 25. For the Gracchi in general Diodorus draws from
Posidonius, an exceedingly hostile source.

[2358] Livy lx; App. _B. C._ i. 23 f.; Plut. _C. Gracch._ 6, 8 f.;
(Aurel. Vict.) _Vir. Ill._ 65. 3. The date is established by Vell. i. 15.
4; Oros. v. 12. 1; cf. Meyer, _Gesch. d. Gracch._ 95, n. 4; Mommsen, in
_CIL._ p. 87, 96.

[2359] Plut. _C. Gracch._ 9; cf. Greenidge, _Hist. of Rome_, i. 224 f.

[2360] Vell. i. 15. 4; (Aurel. Vict.) _Vir. Ill._ 65. 3; cf. Kornemann,
in Pauly-Wissowa, _Real-Encycl._ iv. 522; Ferrero, _Rome_, i. 55. His
plan to colonize Capua (Plut. _C. Gracch._ 8) was not carried out.

[2361] The lex Sempronia or Graccana, mentioned in the _Liber
Coloniarum_, in _Gromatici_ (Lachmann), p. 229, 233, 237, 238; cf. p.
216, 219, 228, 255; cf. Greenidge, _Hist. of Rome_, i. 224, n. 2.

[2362] This fact is deduced from the literary references to the subject
and from the terms of the agrarian law of 111; _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 111.

[2363] _Lex Acil._, in _CIL._ i. 198. 22; _Lex Agr._, _CIL._ i. 200. 59;
Vell. 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 Vell. i. 15. 4; Oros. v. 12. 1; Eutrop. iv. 21.

[2364] Vell. ii. 6. 2; Plut. _C. Gracch._ 5, 8 f.; App. _B. C._ i. 23.
99; 34. 153; cf. Herzog, _Röm. 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 promulgation 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.

[2365] Cf. Fannius, in Jul. Victor vi. 6. p. 224 Or.; Charisius, p. 143
Keil.

[2366] 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 colonists under
it would naturally lead to the extension of equal privileges to the
beneficiaries of the Sempronian agrarian laws.

[2367] 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, _Röm. Alt._ iii. 45);
but even if he felt the intention to be mischievous, 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 cannot
understand why the others provided for were not founded. The reason
doubtless is that the senate, which had used Livius as a tool, never
seriously intended to execute the law.

[2368] 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 (Sall.) _Rep. Ord._ ii. 8: “Mihi ... placet lex quam C.
Gracchus in tribunatu promulgaverit, 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.

[2369] 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.

[2370] 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, _Iug._ 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. de Astypalaeensibus_, in _CIG._ ii. 2485. 11 (cf.
Böckh’s comment); Lange, _Röm. 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.

[2371] Cf. Greenidge, _Hist. of Rome_, i. 231.

[2372] Dio Cassius, Frag. 85. 3, in a mutilated passage seems to refer to
the great possibilities of a longer career. It would be unreasonable to
suppose that so creative a mind could rest content at any given point.

[2373] Fest. 201. 19; Flor. ii. 3. 4 (iii. 15); Diod. xxxiv. 28 a (from
Posidonius); (Aurel. Vict.) _Vir. Ill._ 65. 5; Oros. v. 12. 5; Plut. _C.
Gracch._ 13; App. _B. C._ i. 24. 105; _Pun._ 136; Lange, _Röm. Alt._ iii.
47; Greenidge, _Hist. of Rome_, i. 248; Mommsen, in _CIL._ i. p. 96.

[2374] App. _B. C._ i. 27. 121; cf. Long, _Rom. Rep._ i. 352; Greenidge,
ibid. i. 285; Ihne, _Hist. of Rome_, v. 4 f.

[2375] Ibid. § 122.

[2376] It seems to be a mistake for Spurius Thorius (Cic. _Brut._ 36.
136: “Sp. Thorius .... qui agrum publicum vitiosa et inutili lege
vectigali levavit”). By interpreting this sentence “Sp. Thorius ... who
relieved the public land of a defective and useless law by the imposition
of a vectigal,” Mommsen (in _Verhdl. sächs. Gesellsch. d. Wiss._ 92
f.) attempts to bring Cicero into agreement with Appian. But the
interpretation is violent and is not generally accepted. The statement
of Cicero applies to the law of 111 far better than to that which Appian
mentions under the name of Borius.

[2377] App. ibid.; Lange, _Röm. Alt._ ii. 688; iii. 51; Long, _Rom. Rep._
i. 353 f.; Ihne, _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; Vell. 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.

[2378] _Brut._ 36. 136 (quoted p. 385, n. 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, _Röm. Staatsverf._ i. 478; Long, _Rom. Rep._ i. 351-86;
Greenidge, _Hist. of Rome_, i. 288.

[2379] The classification here given is a close reproduction of Mommsen,
in _CIL._ i. p. 87-106; cf. _Verhdl. sächs. Gesellsch. d. Wiss._ i.
89-101.

[2380] _Lex Agr._ 27 (cf. 4), in _CIL._ i. 200.

[2381] Ibid. 20-23.

[2382] Ibid. 2; cf. 13 f.

[2383] Ibid. 3, 15 f. The word sortito in these passages, e.g. “IIIvir
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.

[2384] Ibid. 5.

[2385] Ibid. 13 f. Although occupation was forbidden by the agrarian law
of Ti. Gracchus (p. 366 above), they did take place, and are legalized
by this article of the law of 111, in so far as they do not exceed the
specified limit.

[2386] _Lex Agr._ 12: “Eum agrum quem ex h(ace) l(ege) venire dari
reddive oportebit”; 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.

[2387] _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”).

[2388] P. 365.

[2389] _Lex Agr._ 11-3; Mommsen, in _CIL._ i. p. 90.

[2390] _Lex Agr._ 45, 55, 59-61, 66-9, 79, 89.

[2391] Ibid. 75 f., 79 f., 85.

[2392] Mommsen, in _CIL._ i. p. 98 ff.

[2393] _Lex Agr._ 96. This part of the inscription is hopelessly
mutilated.

[2394] Ibid. 29.

[2395] P. 385.

[2396] P. 255.

[2397] P. 256 f.

[2398] Cic. _Brut._ 34. 128; cf. _Red. in Sen._ 15. 38; _Red. ad Quir._
4. 9; 5. 11; Greenidge, _Hist. of Rome_, i. 279 f.; Ihne, _Hist. of
Rome_, v. 6 f.

[2399] P. 255.

[2400] Tac. _Ann._ xii. 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).

[2401] Cassiod. _Chron._ 384 C: “Per Servilium Caepionem consulem iudicia
equitatibus et senatoribus communicata”; Obseq. 41 (101).

[2402] Cf. further Cic. _Inv._ i. 49. 92; _Brut._ 43. 161; 44. 164;
_Cluent._ 51. 140; Lange, _Röm. Alt._ ii. 668; iii. 67 f.; Long, _Rom.
Rep._ ii. 2 f.; Greenidge, _Hist. of Rome_, i. 477-82. But that the
knights continued in uninterrupted possession of the courts is proved by
Cicero, _Verr._ i. 13. 38; Pseud. Ascon. 103, 145.

[2403] P. 355.

[2404] (Aurel. Vict.) _Vir. Ill._ 72. 5; Lange, _Röm. Alt._ iii. 53;
Herzog, _Röm. Staatsverf._ i. 478. His lex sumptuaria of the same year,
perhaps combined in one law with the provision concerning the libertini,
limited not only the expense of meals but also the kind of food and the
mode of preparing it; Pliny, _N. H._ viii. 57. 223; cf. Gell. 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. Licinius Crassus,
pretorian or tribunician, ex senatus consulto, perhaps 104, made some
changes in the lex Fannia and the lex Didia; Gell. ii. 24. 7; xv. 8;
Macrob. _Sat._ iii. 17. 7; Fest. ep. 54; p. 356 above.—It was repealed by
the plebiscite of M. Duronius before 97; Val. Max ii. 9. 5; Lange, _Röm.
Alt._ iii. 71, 88.

[2405] Ascon. 67 f.; cf. p. 382, 392.

[2406] The reading of the MS. of Velleius, ii. 11. 1 (“natus equestri
loco”) should not be corrected to “agresti loco” to conform with Plut.
_Mar._ 3. Velleius has mentioned his equestrian birth to explain his
connections with the publicans referred to in the following sentence.

[2407] 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; Plut. _Mar._ 4.

[2408] Cic. _Pis._ 15. 36; _Red. in Sen._ 11. 28. On the pontes, see p.
469.

[2409] Varro, _R. R._ iii. 5. 18. On the custodes, see also p. 467 below.

[2410] Cic. _Pis._ 5. 11; _Red. in Sen._ 7. 17; cf. p. 466.

[2411] Cic. _Leg._ iii. 17. 38.

[2412] Plut. _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 unnecessary for
explaining the policy of Marius; as a champion of the peasants, rather
than of the plebs as a whole, be consistently passed his election law and
opposed the frumentarian bill.

[2413] Plut. _Cat. Min._ 42.

[2414] Cic. _Leg._ iii. 16. 36; Oros. v. 15. 24; cf. Münzer, in
Pauly-Wissowa, _Real-Encycl._ iv. 195 f.; Lange, _Röm. 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.

[2415] P. 388.

[2416] 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, 111, de
incestu (p. 377, n. 5) refers to the same subject.

[2417] Lange, _Röm. Alt._ ii. 697 f.

[2418] Sall. _Iug_. 40. 65; Cic. _Brut._ 33. 127 f.; Schol. Bob. 311. In
111 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; Sall. _Iug._ 32.

[2419] Livy, ep. lxvii; Ascon. 78; cf. (Cic.) _Herenn._ i. 14. 24, which
refers to a defence against the tribunes. For the earliest case of the
kind, see p. 360; cf. p. 342.

[2420] 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; _Balb._ 11. 28; Val. Max. iv. 7. 3; vi. 9. 13.

[2421] 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, _Röm. Staatsverf._ i. 484. On the author, see
Münzer, in Pauly-Wissowa, _Real-Encycl._ iii. 1738. 63.

[2422] The lex Acilia repetundarum (_CIL._ 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.

[2423] Ateius Capito, in Gell. xiv. 8. 2; Willems, _Sén. Rom._ i. 228.

[2424] P. 341.

[2425] Cic. _Amic._ 25. 96.

[2426] Cic. ibid.; _Brut._ 21. 83; _N. D._ iii. 2. 5; 17. 43.

[2427] P. 347.

[2428] Cic. _Leg. Agr._ ii. 7. 18; _Fam._ viii. 4. 1; _Ad Brut._ i. 5. 3;
_Phil._ ii. 2. 4; xiii. 5. 12; Suet, _Ner._ 2; Vell. ii. 12. 3; Lange,
_Röm. Alt._ ii. 537, 675; iii. 71; Wissowa, _Relig. u. Kult. d. Röm_,
418; Long, _Rom. Rep._ i. 49 f.; ii. 40-2; Herzog, _Röm. Staatsverf._ i.
484 f.

[2429] 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.

[2430] P. 388 f.

[2431] Ascon. 67 f.

[2432] The only source is Cic. _Off._ ii. 21. 73.

[2433] Pliny, _N. H._ xxxiii. 3. 46; Mommsen-Blacas, _Hist. d. mon. Rom_,
ii. 101 (for date and character).

[2434] P. 389.

[2435] Ascon. 21; Cic. _Rab. Post._ 4. 9; _Balb._ 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 111; Mommsen, _CIL._ i. p. 55 f.

[2436] Cic. _Verr._ i. 9. 26.

[2437] Cic. _Rab. Post._ 4. 8 f. The quotation is from Greenidge, _Hist.
of Rome_, i. 310.

[2438] Cic. _Rab. Post._ 4. 9; cf. Mommsen. _Röm. Strafr._ 709;
Greenidge, _Leg. Proced._ 423.

[2439] Cic. _Brut._ 62. 224.

[2440] (Aurel. Vict.) _Vir. Ill._ 73. 1: “Ut gratiam Marianorum
militum pararet, legem tulit, ut veteranis centena agri iugera in
Africa dividerentur, intercedentem Baebium collegam facta per populum
lapidatione submovit”; Lange, _Röm. Alt._ iii. 76; Herzog, _Röm.
Staatsverf._ i. 485; Klebs, in Pauly-Wissowa, _Real-Encycl._ ii. 262.
In the opinion of Mühl, _App. Sat._ 77 f., the colonia Mariana (p. 396
below) was founded under this law.

[2441] P. 86, 89.

[2442] Cic. _Orat._ ii. 25. 107; 49. 201; _N. D._ iii. 30. 74.

[2443] 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.

[2444] The theory that the court established by the Appuleian law was
special is held by Mommsen, _Hist. of Rome_, iii (1898). 440, n. 1; _Röm.
Staatsr._ ii. 664, n. 1; _Röm. Strafr._ 198. Lange, _Röm. 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. Mühl, _App.
Sat._ 74, also strongly favors the second. The statement of Gran. Licin.
xxxiii (?). 4—“Cn. Manilius (for Manlius or Mallius; cf. _CIL._ i². 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 n. 4 above) point clearly to the
existence of a standing court; cf. Herzog, _Röm. Staatsverf._ i. 485;
Madvig, _Röm. Staat._ ii. 275; Klebs, in Pauly-Wissowa, _Real-Encycl._
ii. 262 f.; Lengle, _Sull. 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. 1 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.

[2445] (Aurel. Vict.) _Vir. Ill._ 73. 5: “Tribunus plebis refectus
(Saturninus) Siciliam, Achaiam, Macedoniam novis colonis destinavit et
aurum (Tolosanum), dolo an scelere Caepionis partum, ad emptionem agrorum
convertit.” For Corsica, see p. 396.

[2446] Cic. _Balb._ 21. 48. The MS. reads “ternos,” which may be a
mistake for a larger number (trecenos?).

[2447] App. _B. C._ i. 29. 130, 132; Long, _Rom. Rep._ ii. 111 f.;
Herzog, _Röm. Staatsverf._ i. 486.

[2448] (Cic.) _Herenn._ i. 12. 21; Long, _Rom. Rep._ ii. 114 f.; Herzog,
ibid. i. 486 f.

[2449] _B. C._ i. 29. 131; cf. Plut. _Mar._ 29.

[2450] Cf. Klebs, in Pauly-Wissowa, _Real-Encycl._ ii. 265.

[2451] App. _B. C._ i. 30 f.; Plut. _Mar._ 29; (Aurel. Vict.) Vir. _Ill._
73; 8; Vell. ii. 15. 4; Val. Max iii. 8. 4; Cic. _Dom._ 31. 82; _Har.
Resp._ 19. 41; _Sest._ 47. 101; _Leg._ iii. 11. 26. After the downfall
of Appuleius, Metellus was recalled by a plebiscite of Q. Calidius, 98;
Cic. _Planc._ 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. Ill._ 62. 3. On this Calidius, see further Münzer, in
Pauly-Wissowa, _Real-Encycl._ iii. 1354. 5. A fruitless attempt to recall
Metellus had been made in 99 through the tribunician rogatio Porcia
Pompeia; Oros. v. 17. 11; App. _B. C._ i. 33.

[2452] 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.

[2453] 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.

[2454] Obseq. 46 (106); Val. Max viii. 1. damn. 3; cf. Cic. _Orat._ ii.
11. 48.

[2455] 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, _Röm. Alt._ ii. 661, 668.

[2456] Cic. _Dom._ 20. 53; _Leg._ iii. 4. 11; 19. 43. The enactment was
merely the confirmation of an old custom or law introduced between the
Licinian-Sextian legislation and 122; cf. _Lex Acil._ 72, in _CIL._ i.
198.

[2457] Cic. _Dom._ 16. 41; _Sest._ 64. 135; Schol. Bob. 310. This, too,
was a confirmation of an earlier usage; Dion. Hal. vii. 58. 3; x. 3. 5;
Livy iii. 35. 1; p. 189, 260, n. 1 above; cf. Mommsen, _Röm. Staatsr._
iii. 336, 376 f.

[2458] Cic. _Off._ iii. 11. 47; cf. p. 354, 370.

[2459] Cic. _Balb._ 21. 48.

[2460] Cic. _Brut._ 16. 63; Schol. Bob. 296.

[2461] Cic. Frag. A. vii. 20.

[2462] Ascon. 67. On the law in general, see Lange, _Röm. Alt._ iii.
90; Long, _Rom. Rep._ ii. 128; Herzog, _Röm. Staatsverf._ i. 490. On
Caecilius and Didius, see Münzer, in Pauly-Wissowa, _Real-Encycl._ iii.
1216. 95; v. 407-10.

[2463] Vell. ii. 13. 1; Dio Cass. Frag. 96. 2; Diod. xxxvii. 10.

[2464] The citations of the preceding note, and Ascon. 68; Livy, ep. lxx;
less clearly Flor. ii. 5. 1, 4 (iii. 17).

[2465] (Aurel. Vict.) _Vir. Ill._ 66. 4 f.; _CIL._ vi. 1312 (i. p. 279
vii). Livy, ep. lxxi, merely mentions them.

[2466] _B. C._ i. 35. 156.

[2467] P. 383 above.

[2468] This may be inferred from the silence of Cicero, _Leg. Agr._ i. 7.
21; ii. 29. 81; cf. Lange, _Röm. Alt._ iii. 102; Ihne, _Hist. of Rome_,
v. 181; Herzog, _Röm. Staatsverf._ i. 490.

[2469] 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.”

[2470] _CIL._ vi. 1312; cf. i. p. 279. vii. A beginning was actually made
of the colonization; and this is all that could be indicated by the verb
ὑπήγετο (App. _B. C._ i. 35. 156), “he was for conducting.”

[2471] Ep. lxxi.

[2472] Cf. Vell. ii. 13. 2; Livy, ep. lxx f.

[2473] Pliny, _N. H._ xxxiii. 3. 46. The idea was to issue one
silver-plated copper denarius to every seven silver denarii; Mommsen,
_Röm. Münzw._ 387 (Mommsen-Blacas, _Hist. d. mon. Rom_, ii. 41 f., 82);
Babelon, _Mon. d. la rép. Rom_, 1. introd. p. lix.

[2474] Lange, _Röm. Alt._ ii. 674; iii. 103.

[2475] _B. C._ i. 35. 157 f. The same view seems to be held by (Aurel.
Vict.) _Vir. Ill._ 66. 4. It is accepted by Lange, _Röm. Alt._ iii. 97;
Greenidge, _Leg. Proced._ 436. The objection is that a judiciary measure,
as the Livian, could not have dealt primarily with the composition of the
senate; Herzog, _Röm. Staatsverf._ i. 489.

[2476] II. 13. 2. Florus, ii. 5. 4 (iii. 17), is non-committal.

[2477] LXXI; accepted by Ihne, _Hist. of Rome_, v. 177.

[2478] Cf. App. _B. C._ i. 35. 157.

[2479] Flor. ii. 5. 3 (iii. 17); App. _B. C._ i. 35. 158.

[2480] Cic. _Rab. Post._ 7. 16; _Cluent._ 56. 153; Ihne, _Hist. of Rome_,
v. 177 f.

[2481] Velleius, ii. 14. 1, 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.

[2482] (Aurel. Vict.) _Vir. Ill._ 66. 4; Oros. v. 18. 2.

[2483] Vell. 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.

[2484] App. _B. C._ i. 35 f.

[2485] Livy, ep. lxxi; Flor. ii. 5. 7 (iii. 17).

[2486] Ascon. 68.

[2487] Cic. _Leg._ ii. 6. 14; 12. 31; _Dom._ 16. 41; Frag. A. vii
(_Cornel._ i. 24); Ascon. 68; Diod. xxxvii. 10. 3.

[2488] 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 wrongdoers in this matter would speedily suffer
merited punishment.

[2489] Cf. the elogium, n. below.

[2490] Elogium, in _CIL._ vi. 1312 = i. p. 279. vii: “M. Livius M. F. C.
N. Drusus, Pontifex, tr. mil. X. vir. stlit. iudic. tr. pl. X. vir. a. d.
a. lege sua et eodem anno V. vir. a. d. a. lege Saufe(i)a, in magistratu
occisus est.”

[2491] On M. Livius Drusus, see Lange, _Röm. Alt._ iii. 96-106; Long,
_Rom. Rep._ II. ch. xiii; Herzog, _Röm. 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; Ferrero, _Rome_, i. 79 f.

[2492] (Aurel. Vict.) _Vir. Ill._ 66. 2; Cic. _Rosc. Am._ 19. 55; Schol.
Gronov. 431; Ascon. 30; _Dig._ xxii. 5. 13; xlviii. 16. 3. 2; Lange,
_Röm. Alt._ ii. 665; iii. 101; Mommsen, _Röm. Strafr._ 491, 494. Hitzig,
in Pauly-Wissowa, _Real-Encycl._ iii. 1416, places it earlier.

[2493] Cic. _Rosc. Am._ 20. 57; Pliny, _Paneg._ 35; Seneca, _De Ira_,
iii. 3. 6; Mommsen, _Röm. Strafr._ 495. It is almost certain that the
punishment mentioned was prescribed by this law; Hitzig, ibid.

[2494] 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.

[2495] Cic. _Brut._ 89. 304: “Exercebatur una lege iudicium Varia,
ceteris propter bellum intermissis.”

[2496] 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 Plautian 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,
_Röm. Alt._ iii. 108; Herzog, _Röm. Staatsverf._ i. 493; Mommsen, _Röm.
Strafr._ 198; Long, _Rom. Rep._ ii. 164 f.; Greenidge, _Leg. Proced._
384 f.; Ihne, _Hist. of Rome_, v. 188 f.; and especially Lengle, _Sull.
Verf._ 32-6, where further sources are cited.

[2497] Cic. _Brut._ 62. 222. It belongs to about 90; Lange, _Röm. Alt._
ii. 693.

[2498] _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.

[2499] Gell. iv. 4. 3.

[2500] Vell. ii. 16. 4; cf. App. _B. C._ i. 49. 212 (who speaks merely of
a senatus consultum). This statute seems to have considered the Po the
northern boundary of Italy; Sall. _Hist._ i. 20.

[2501] Cic. _Balb._ 8. 21: “Ipsa Iulia lege civitas ita est sociis et
Latinis data, ut, qui fundi populi facti non essent, civitatem non
haberent.” On fundus see Fest. ep. 89. Heraclea and Naples declined the
citizenship; Cic. ibid.

[2502] P. 57 f.

[2503] Cic. _Arch._ 10. 26; _Balb._ 8. 19; 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, _Röm. Bundesgenossenkrieg_, 224 f., 229 f. The
identity of the author is uncertain; he may be the Calpurnius who was
praetor in 74; Münzer, in Pauly-Wissowa, _Real-Encycl._ iii. 1395. 98.

[2504] Cic. _Arch._ 4. 7: Schol. Bob. 353.

[2505] Dio Cass. Frag. 102. 7.

[2506] Dio Cass. xxxvii. 9. 3; Ascon. p. 3; Pliny, _N. H._ iii. 20. 138;
Lange, _Röm. Alt._ iii. 118; cf. however Herzog, _Röm. Staatsverf._ i.
497 f.

[2507] Cic. Frag. A. vii. 53; Ascon. 79; Lange, _Röm. Alt._ ii. 539,
668 f.; iii. 115; Herzog, _Röm. Staatsverf._ i. 499; Greenidge, _Leg.
Proced._ 385; Long, _Rom. Rep._ ii. 213 f. We may connect with this
change the prosecution and condemnation of Q. Varius; p. 401, n. 1 above;
Ihne, _Hist. of Rome_, v. 224 f.

[2508] _Röm. Strafr._ 198, n. 1, 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.

[2509] Verr. i. 13. 38.

[2510] Cic. _Att._ i. 18. 6.

[2511] Pliny, _N. H._ xxxiii. 3. 46; Kubitschek, in Pauly-Wissowa,
_Real-Encycl._ ii. 1512; Gardner, in Smith, _Dict._ i. 206; Babelon,
_Monn. de la rép. Rom._ i. 74 f.

[2512] Strabo v. 4. 11.

[2513] P. 162.

[2514] Livy, ep. lxxvii; App. _B. C._ i. 55. 242 f.; Vell. ii. 18. 6;
Ascon. 64; Fröhlich, 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.

[2515] (Cic.) _Herenn._ ii. 28. 45; Livy, ep. lxxvii; Lange, _Röm. Alt._
iii. 123; Herzog, _Röm. Staatsverf._ i. 501.

[2516] P. 400 f.

[2517] Plut. _Sull._ 8.

[2518] P. 403 above; also Ferrero, _Rome_, i. 84.

[2519] 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; Fröhlich, in Pauly-Wissowa, _Real-Encycl._ iv. 1533; Mommsen, _Röm.
Staatsr._ i. 263, n. 6.

[2520] For the abrogation of Sulla’s imperium Vell. 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. 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. Fröhlich, in
Pauly-Wissowa, _Real-Encycl._ iv. 1533 f.

[2521] Plutarch, _Sull._ 8 and Livy, ep. lxxvii, speak of a decree of the
senate only, whereas the account of Appian, _B. C._ i. 60. 271 (Πολεμίους
Ῥωμαίων ἐψήφιστο εἶναι) 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 sentence of exile, as may be gathered
from his context; cf. Ihne, _Hist. of Rome_, v. 237.

[2522] App. _B. C._ i. 59. 268; Cic. _Phil._ viii. 2. 7. Scholars are
at variance as regards the character and motives of Sulpicius. Herzog,
_Röm. Staatsverf._ i. 501 (cf. Ferrero, _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.
Fröhlich, 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, _Röm. Alt._ iii. 121-5; Long, _Rom. Rep._ II.
ch. xvii; Neumann, _Gesch. Roms_, i. 507-17.

[2523] P. 277, 313 f.

[2524] App. _B. C._ i. 59. 266: Εἰσηγοῦντό τε μηδὲν ἔτι ἀπροβούλευτον ἐς
τὸν δῆμον ἐσφέρεσθαι, νενομισμένον μὲν οὕτω καὶ πάλαι, παραλελυμένον δ’
ἐκ πολλοῦ.

[2525] Ibid.: Εἰσηγοῦντο ... καὶ τὰς χειροτονίας μὴ κατὰ φυλάς, ἀλλὰ κατὰ
λόχους, ὡς Τύλλιος βασιλεὺς ἔταξε γίνεσθαι.

[2526] P. 86.

[2527] In _Hermes_, xxxiii (1898). 652.

[2528] This view is held by Sunden, _De trib. pot. imm._ (1897) 21 ff.;
Meyer, ibid. 652-4; Vassis, in _Athena_, xii (1900). 54-7. Fröhlich,
in Pauly-Wissowa, _Real-Encycl._ iv. 1537, supposes that elections
simply were thereby transferred to the comitia centuriata; but the
word χειροτονίαι used 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
ἀρχαιρεσία (cf. i. 1. 1; 44. 196), as otherwise the meaning would have
been doubtful. The view represented by Fröhlich, 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
unimportant right to elect minor officials.

[2529] Appian’s words πολλά τε ἄλλα τῆς τῶν δημάρχων ἀρχῆς ...
περιελόντες (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 belongs properly to the year under consideration.

[2530] 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. _Caes._ 14; App. _B. C._ ii. 10)
patrician magistrates occasionally brought rogations before the comitia
without the senatorial sanction. 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.

[2531] _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.
Δημόται always means plebeians; i. 24. 106; 25. 109; 33. 146; 100. 469.
Sometimes δῆμος is exactly equivalent to πλῆθος, multitude, as in i. 26.
119.

[2532] _B. C._ i. 12. 51; 13. 55; 20. 83; 21. 90; 22. 92; 23. 101; 25.
107; 28. 128; 29. 131.

[2533] _B. C._ i. 27. 122. In 33. 148 it applies to the judicial contio
preliminary to the comitia centuriata.

[2534] _B. C._ i. 13. 56; 25. 112; 32. 143; 54. 236; 104. 485.

[2535] _B. C._ i. 12. 49; 32. 141.

[2536] _B. C._ i. 101. 472.

[2537] _B. C._ i. 59. 267.

[2538] Willems, _Sén. Rom._ i. 402 f.

[2539] Livy, ep. lxxvii.

[2540] Fest. 375. 7.

[2541] Cf. the law of 357; p. 297. See also Lange, _Röm. Alt._ iii.
126 f.; Herzog, _Röm. Staatsverf._ i. 502; Fröhlich, in Pauly-Wissowa,
_Real-Encycl._ iv. 1537.

[2542] Billeter, _Gesch. d. Zinsfusses_, 155-7.

[2543] 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
Plautian judiciary law of 89 was also repealed; p. 402.

[2544] Cic. _Phil._ viii. (3.) 7; Vell. ii. 20. 2 f.; Schol. Gronov. 410;
Jul. Exuper. 4; App. _B. C._ i. 64. 287; Mommsen, _Röm. Staatsr._ iii.
180, 439; Münzer, in Pauly-Wissowa, _Real-Encycl._ iv. 1283.

[2545] App. ibid.; Flor. ii. 9. 9 (iii. 21); (Aurel. Vict.) _Vir. Ill._
69. 2.

[2546] Livy, ep. lxxix; Vell. ii. 20. 3; App. _B. C._ i. 65. 296; (Aurel.
Vict.) _Vir. Ill._ 69. 2; Plut. _Mar._ 41.

[2547] Cinna is represented as the author by Vell. 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; Münzer, in
Pauly-Wissowa, _Real-Encycl._ iv. 1285; Long, _Rom. Rep._ ii. 244.

[2548] P. 405.

[2549] Livy, ep. lxxxiv: “Novis civibus senatus consulto suffragium datum
est.”

[2550] P. 58 above. Lange, _Röm. 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; Münzer, in Pauly-Wissowa, _Real-Encycl._
iii. 2848 f.

[2551] Vell. ii. 23. 2; Cic. _Font._ 1. 1; _Quinct._ 4. 17; Sall. _Cat._
33; Mommsen, _Röm. Münzwesen_, 385; Long, _Rom. Rep._ ii. 251; Ferrero,
_Rome_, i. 92.

[2552] Cic. _Leg. Agr._ ii. 33. 89; 34. 92; 36. 98.

[2553] _CIL._ i². p. 154.

[2554] App. _B. C._ i. 3, 98 f.; Plut. _Sull._ 33; Vell. ii. 28. 2; Oros.
v. 21. 12; Diod. xxxviii, xxxix. 15; cf. Mommsen, _Röm. Staatsr._ ii.
703 f. The office had been disused for a hundred and twenty years; Plut.
ibid.; Vell. ibid.; _CIL._ i². p. 23. On the form of comitia, see p. 236.

[2555] App. _B. C._ i. 97. 451; Cic. _Leg. Agr._ iii. 2. 5.

[2556] Cic. _Rosc. Am._ 43. 126; Fröhlich, in Pauly-Wissowa,
_Real-Encycl._ iv. 1556; Drumann-Gröbe, _Gesch. Roms_, ii. 404. From
this Ciceronian passage it is necessary to infer that the Valerian law
contained an article similar to the later Cornelian lex de proscriptione;
p. 421 below.

[2557] _CIL._ i². p. 27.

[2558] Livy, ep. lxxxix; App. _B. C._ i. 100. 465; Sall. _Hist._ i. 55. 2.

[2559] P. 406 f.

[2560] Livy, ep. lxxxix: “Tribunorum plebis potestatem minuit, et omne
ius legum ferendarum ademit.” We should infer from this statement, which
is the sole authority for the view it presents, that he absolutely
deprived the tribunes of legislative initiative, 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. 11; Lange, _Röm. Alt._ iii. 154; Fröhlich, in
Pauly-Wissowa, _Real-Encycl._ iv. 1559; Mommsen, _Röm. Staatsr._ iii.
158; Lengle, _Sull. Verf._ 11; Drumann-Gröbe, _Gesch. Roms_, i. 390 f.,
411. The conference between Sulla and Scipio, mentioned by Cic. _Phil._
xii. 11. 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 epigraphic lex above mentioned.

It seems probable (Lange, _Röm. Alt._ iii. 175; Mommsen, _Röm. 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; Sall. _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 Lepidus, 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,
_Röm. Alt._ iii. 185; Maurembrecher, Sall. _Hist. Proleg._ 78; Münzer, 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 potestate would apply more accurately to the
Cornelian-Pompeian law of 88; p. 406.

[2561] From Cic. _Cluent._ 40. 110 (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; _Orat._ of Licinius Macer, in
Sall. _Hist._ iii. 48. 8: “L. Sicinius primus de potestate tribunicia
loqui ausus mussantibus vobis”; cf. Pseud. Ascon. 103; Plut. _Caes._
7; Cic. _Brut._ 60. 216 f. In 74 the tribune Quinctius held contiones;
Cic. _Cluent._ 34. 93; Sall. _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.

[2562] 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;
Drumann-Gröbe, _Gesch. Roms_, ii. 411, n. 10.

[2563] Cic. _Verr._ i. 13. 38: “Sublata populi Romani in unum quemque
vestrum potestate.”

[2564] P. 245, 266, 315.

[2565] Cic. _Leg._ iii. 9. 22.

[2566] App. _B. C._ i. 100. 467; Ascon. 78 (repealed by Cotta); Pseud.
Ascon. 200.

[2567] Vell. ii. 30. 4; Dion. Hal. v. 77. 5; Sall. _Hist._ i. 55. 23;
iii. 48. 3; Pseud. Ascon. 102.

The following sources assume more or less definitely an abolition of the
tribunicia potestas; Sall. _Hist._ i. 55. 23; 77. 14; iii. 48. 1; _Cat._
38. 1; Plut. _Pomp._ 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; Vell. ii. 30. 4; Suet. _Caes._ 5; (Aurel. Vict.) _Vir. Ill._ 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, _Röm. Alt._
iii. 153 f.; Fröhlich, in Pauly-Wissowa, _Real-Encycl._ iv. 1559;
Drumann-Gröbe, _Gesch. Roms_, ii. 410 ff.; Lengle, _Sull. Verf._ 10-16;
Sunden, _De trib. pot. imm._

[2568] In Pauly-Wissowa, _Real-Encycl._ iv. 1559.

[2569] 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.

[2570] P. 347. The relation of this Cornelian provision to the lex Villia
is not more definitely known.

[2571] App. _B. C._ i. 100. 466; cf. 121. 560.

[2572] Cf. Mommsen, _Röm. Staatsr._ i. 529.

[2573] In the thirty-sixth year of his age Pompey was not yet qualified
for the quaestorship; 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, _Röm. Staatsr._ i. 527, 569; Fröhlich,
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 ff.

[2574] Cic. _Dom._ 43. 112; _Fam._ x. 25. 2; 26. 2 f.

[2575] Tac. _Ann._ xi. 22; cf. Fröhlich, ibid. iv. 1560.

[2576] P. 348.

[2577] P. 298.

[2578] App. _B. C._ i. 100. 466; cf. Cic. _Leg._ iii. 3. 9; Caes. _B. C._
i. 32; Dio Cass. xl. 51. 2.

[2579] P. 332. There were probably twelve; Lange, _Röm. Alt._ iii. 163;
Mommsen, _Röm. Staatsr._ i. 543.

[2580] 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 qualifications, 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 apparitores, see Mommsen, in _Rhein. Mus._ N. F.
vi (1846). 1-57; _Röm. Staatsr._ i. 332-46; Habel, in Pauly-Wissowa,
_Real-Encycl._ ii. 191-4; Keil, J., in _Wiener Studien_, xxiv (1902).
548-51.

[2581] 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.

[2582] Livy, ep. lxxxix, who connects it closely with the increase in
the number of senators, placing it thus among his earlier measures;
(Aurel. Vict.) _Vir. Ill._ 75. 11; Servius, _in Aen._ vi. 73; cf. Tac.
_Ann._ vi. 12; Lange, _Röm. Alt._ iii. 157; Fröhlich, in Pauly-Wissowa,
_Real-Encycl._ iv. 1559 f.; Lengle, _Sull. Verf._ 1-9. That the increase
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. 2.

[2583] P. 391.

[2584] Livy, ep. lxxxix; Dio Cass. xxxvii. 37. 1; Pseud. Ascon. 102;
wrongly Plut. _Caes._ 1; Serv. _in Aen._ vi. 73; cf. Lange, _Röm. Alt._
iii. 157.

[2585] 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. Röm._ 418; Drumann-Gröbe,
_Gesch. Roms_, iii. 156; Mommsen, _Röm. Staatsr._ ii. 30, have failed to
notice this important fact.

[2586] P. 106, n. 10.

[2587] P. 416.

[2588] Mommsen, _Röm. Staatsr._ ii. 200; Fröhlich, in Pauly-Wissowa,
_Real-Encycl._ iv. 1560.

[2589] Lange, _Röm. Alt._ iii. 164.

[2590] P. 381.

[2591] Lange, _Röm. Alt._ ii. 705.

[2592] Cic. _Fam._ i. 9. 25.

[2593] Cf. Cic. _Fam._ viii. 8. 8.

[2594] Cic. _Fam._ i. 9. 25. On the relation of the Cornelian legislation
to the curiate law, see p. 193, 199.

[2595] Cic. _Fam._ iii. 6. 3, 6.

[2596] Cic. _Fam._ iii. 10. 6; _Q. Fr._ i. 1. 9, 26.

[2597] App. _B. C._ i. 103. 482; Oros. v. 22. 4; Eutrop. v. 9. Willems,
_Sén. Rom._ i. 404, calculates that the number was reduced to about a
hundred and fifty.

[2598] Livy, ep. lxxxix; cf. Cic. _Rosc. Am._ 3. 8; Dion. Hal. v. 77. 5;
Sall. _Cat._ 37.

[2599] _B. C._ i. 100. 468.

[2600] Cf. Fröhlich, in Pauly-Wissowa, _Real-Encycl._ iv. 1559.

[2601] P. 402. The second view, which seems more reasonable, is held by
Lange, _Röm. Alt._ iii. 156.

[2602] No authority gives this number, which however may be deduced from
well-known facts; Willems, _Sén. Rom._ i. 405 f.

[2603] Willems, ibid. 406 f.

[2604] Fröhlich, in Pauly-Wissowa, _Real-Encycl._ iv. 1560.

[2605] Lange, _Röm. Alt._ iii. 156.

[2606] Vell. 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.

[2607] Tac. _Ann._ xi. 22: “Lege Sullae viginti creati (quaestores)
supplendo senatui, cui iudicia tradiderat.”

[2608] P. 402.

[2609] _Dig._ i. 2. 2. 32.

[2610] Cic. _Rab. Post._ 4. 9. It took the place of the lex Servilia of
111; p. 393.

[2611] 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 f., who has collected the cases de
ambitu anterior to Sulla; Lange, _Röm. Alt._ ii. 665; Herzog, _Röm.
Staatsverf._ i. 521; Lohse, _De quaestionum perpetuarum origine,
praesidibus, consiliis_.

[2612] Cic. _Verr._ i. 13. 39; II. i. 4. 11 f.; iii. 36. 83; _Cluent._
53. 147; cf. _Mur._ 20. 42; Lange, _Röm. 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 supposition
is right, the court must have existed before Sulla. A Cornelian law on
the subject is not expressly mentioned but may be reasonably assumed.

[2613] Mommsen, _Röm. Strafr._ 203.

[2614] 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, _Röm. Alt._ iii. 165;
Greenidge, _Leg. Proced._ 423, 507.

[2615] Cic. _Cluent._ 20. 55; 54. 148; 55. 151; 56. 154; 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).

[2616] Cic. _Verr._ i. 42. 108; Paul. _Sent._ iv. 7; v. 25; _Dig._
xlviii. 10; Justin. _Inst._ iv. 18. 7; cf. Voigt, _Röm. Rechtsgesch._ i.
271 f.

[2617] _Dig._ iii. 3. 42. 1; xlvii. 10. 5; 10. 37. 1; xlviii. 2. 12. 4;
Paul. _Sent._ v. 4. 8; Justin. _Inst._ iv. 4. 8; Mommsen, _Röm. Strafr._
203; Greenidge, _Leg. Proced._ 208, 423 f.; Fröhlich, in Pauly-Wissowa,
_Real-Encycl._ iv. 1561; Bruns, _Font. Iur._ 93. In the opinion of Lange,
_Röm. Alt._ ii. 665; iii. 166, this lex did not establish a quaestio.

[2618] Cic. _Cluent._ 20. 55; 27. 75; Greenidge, _Leg. Proced._ 442.

[2619] Cic. _Cluent._ 28. 75.

[2620] Greenidge, _Leg. Proced._ 442. On the Cornelian courts in general,
see Long, _Rom. Rep._ ii. 420 ff.; Herzog, _Röm. Staatsverf._ i. 520
f.; Drumann-Gröbe, _Gesch. Roms_, ii. 413-6; Mommsen, _Röm. Strafr._
see index, s. Quaestio and the various crimes belonging thereto; _Röm.
Staatsr._ ii. 200 f.; Lengle, _Sull. Verf._ 17-54; Lohse, _De quaestionum
perpetuarum origine, praesidibus, consiliis_; Fröhlich, in Pauly-Wissowa,
_Real-Encycl._ iv. 1561 f.

In Lange’s opinion (_Röm. Alt._ ii. 665; iii. 166) there must have been
a lex Cornelia de adulteriis et pudicitia, for it is doubtful whether
Sulla’s ordinance περὶ γάμων καὶ σωφροσύνης 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 _Ber. sächs.
Gesellsch. d. Wiss._ xlii (1890). 244-79, that all republican regulations
of this offence, including the Cornelian, were sumptuary; cf. Cuq, in
Daremberg et Saglio, _Dict._ iii. 1141. No quaestio accordingly was
needed for the trial of the offence.

[2621] Lange, _Röm. Alt._ iii. 158.

[2622] P. 412.

[2623] Cic. _Verr._ II. i. 47. 123; Pseud. Ascon. 193.

[2624] Suet. _Caes._ 11.

[2625] Cic. _Rosc. 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 proscripti sunt, ... aut eorum, qui in adversariorum
praesidiis occisi sunt.”

[2626] Livy lxxxix; Vell. ii. 28. 4; Sall. _Hist._ i. 55. 6; Plut.
_Sull._ 31; _Cic._ 12; Dion. Hal. viii. 80. 2.

[2627] Cic. _Rosc. Am._ 44. 128.

[2628] App. _B. C._ i. 96. 100; Flor. ii. 9 (iii. 21); cf. Suet. _Ill.
Gramm._ 11.

[2629] Livy, ep. lxxxix; App. _B. C._ i. 100. 470; 104. 489; Sall.
_Hist._ i. 55. 12; Cic. _Mur._ 24. 49: _Leg. Agr._ ii. 28. 78; iii. 2. 6
ff.; 3. 12; Gromat. p. 230 ff.

[2630] Lange, _Röm. Alt._ iii. 159; cf. ii. 689; Drumann-Gröbe, _Gesch.
Roms_, ii. 407 f.

[2631] Lange, ibid. iii. 159.

[2632] _CIL._ i². p. 49.

[2633] Lange, ibid. iii. 161.

[2634] Cic. _Dom._ 30. 79; Sall. _Hist._ i. 55. 12; cf. Pseud. Ascon. 102.

[2635] Cic. _Caecin._ 35. 102.

[2636] App. _B. C._ i. 102. 474; cf. Cic. _Leg. Agr._ ii. 14. 35.

[2637] Sall. _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).

[2638] Lange, _Röm. Alt._ ii. 693. The statement in iii. 161 is less
exact.

[2639] App. _B. C._ i. 102. 474.

[2640] Cic. _Off._ iii. 22. 87.

[2641] P. 409 f.

[2642] Hence it was that T. Crispinus, quaestor in the following year,
treated the Valerian 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, reasonably assigns to the dictator.

[2643] _CIL._ i². p. 333; Vell. ii. 27. 6; Cic. _Verr._ i. 10. 31; Pseud.
Ascon. 150; Wissowa, _Relig. u. Kult. d. Röm._ 128.

[2644] Lange, _Röm. Alt._ ii. 675; iii. 162.

[2645] Its existence is assumed for the year 80; Plut. _Sull._ 35.

[2646] P. 388, n. 9.

[2647] Ibid.

[2648] Gell. ii. 24. 11; Macrob. _Sat._ iii. 17. 11.

[2649] Plut. _Sull._ 35. Here belongs also his regulation de adulteriis
et pudicitia; p. 420, n. 6 above.

[2650] _CIL._ i². 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. _Rosc. Am._ 48. 139),
and that the newly organized criminal courts were in operation for the
first time in 80; Cic. ibid. 5. 11; 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.

[2651] The general character of these proposals, among which the
frumentarian alone was adopted, can be gathered from the _Oration_ of
Lepidus, in Sall. _Hist._ i. 55; 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 f.

[2652] P. 414.

[2653] Sall. _Hist._ ii. 49; Ascon. 66, 78; Pseud. Ascon. 200; Lange,
_Röm. Alt._ iii. 178 f.; Long, _Rom. Rep._ iii. 3; Herzog, _Röm.
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.

[2654] Sall. _Cat._ 31; Gaius ii. 45; Cuq, in Daremberg et Saglio,
_Dict._ iii. 1159. For the cases coming before this court, see Greenidge,
_Leg. Proced._ 424, n. 6.

[2655] 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. 2.

[2656] P. 413, n. 4. The consuls of 73 passed a frumentarian measure—the
lex Cassia Terentia, considered below; p. 444, n. 6.

[2657] Sall. _Hist._ iv. 1, 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 collect the moneys; Ascon. 72; cf. Lange, _Röm.
Alt._ iii. 190, 221; Drumann-Gröbe, _Gesch. Roms_, ii. 467. Münzer,
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. _Balb._ 8. 19; 14. 32 f.; Pliny, _N. H._ v. 5. 36.
Their joint proposal that provincials 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; Münzer, ibid.; Drumann-Gröbe, 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, _Röm. Staatsv._ ii.
89, n. 6.

[2658] Cic. _Flacc._ 3. 6; Ascon. 15; cf. Lange, _Röm. Alt._ iii. 191.

[2659] 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.

[2660] 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.

[2661] The first chapter of this law is preserved in an inscription;
_CIL._ i. 204; Bruns, _Font. Iur._ p. 94; Girard, _Textes_, p. 66.

[2662] P. 423.

[2663] 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; Sall. _Hist._ i. 77. 14.

[2664] Sall. _Hist._ iii. 48. 8; Pseud. Ascon. 103.

[2665] P. 423 f.

[2666] Cic. _Verr._ II. i. 60.

[2667] Cic. _Cluent._ 34. 93 f.; Ascon. 103; Plut. _Lucull._ 5.

[2668] Licinius Macer, _Oratio ad plebem_, in Sall. _Hist._ iii. 48.
11 (cf. iv. 71); Cic. _Cluent._ 22. 61; 27. 74; 28. 77; 29. 79; Pseud.
Ascon. 141; Schol. Gronov. 386, 395, 441.

[2669] Sall. _Hist._ iii. 48; Cic. _Brut._ 67. 238.

[2670] Suet. _Caes._ 5.

[2671] Plut. _Pomp._ 21; App. _B. C._ i. 121. 560; Sall. _Hist._ iv.
44 (“Magnam 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.

[2672] Sall. _Hist._ iv. 46.

[2673] Cic. _Verr._ i. 16. 46 f.

[2674] Ibid. 15. 44; Pseud. Ascon. 147.

[2675] _CIL._ i². p. 154.

[2676] Livy, ep. xcvii; Cic. Frag. A. vii (_Cornel._ i). 47; Ascon. 75;
Pseud. Ascon. 103.

[2677] Sall. _Cat._ 38; Vell. 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, _Röm. Alt._ iii. 192 f.; Long, _Rom.
Rep._ iii. 49-51; Herzog, _Röm. Staatsverf._ i. 553.

[2678] Cic. _Verr._ i. 15. 45.

[2679] P. 424. Pompey found it popular to give his assent; Plut. _Pomp._
22; cf. Neumann, _Gesch. Roms_, ii. 75.

[2680] Cicero, in his _In Verrem Actio_ I, is unacquainted with the
rogation and expresses the hope that the condemnation of Verres will
restore confidence in the senatorial 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).

[2681] Cic. _Verr._ ii. 71. 174 f.; iii. 96. 223 f.; v. 69. 177 f.; Livy,
ep. xcvii; Plut. _Pomp._ 22; Pseud. Ascon. 127.

[2682] 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.

[2683] P. 402.

[2684] Cic. _Cluent._ 43. 121.

[2685] 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, _Röm. Alt._ iii. 197 f.; Herzog, _Röm. 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.

[2686] _Röm. 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.

[2687] Q. Cic. _Petit. Cons._ 11. 44.

[2688] Cic. _Cluent._ 55. 152 (year 66).

[2689] Cic. _Att._ i. 17. 9; _Off._ iii. 22. 88; cf. Lange, _Röm. Alt._
iii. 202.

[2690] Cf. Neumann, _Gesch. Roms_, ii. 141.

[2691] Dio Cass. xxxvi. 30.

[2692] Cic. Frag. A. vii (_Cornel._ i). 52; Ascon. 78.

[2693] Cic. _Phil._ ii. 18. 44; Hor. _Epist._ i. 1. 61; Juv. iii. 159;
xiv. 324.

[2694] 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.

[2695] Vell. ii. 32. 3; Cic. _Mur._ 19. 40; p. 356 f. above.

[2696] Cic. _Q. Fr._ ii. 11. 3.

[2697] Drumann-Gröbe, _Gesch. Roms_, ii. 526.

[2698] P. 425.

[2699] Cic. _Q. Fr._ ii. 13. 3; cf. _Fam._ i. 4. 1.

[2700] 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,
_Röm. Alt._ iii. 203.

[2701] Ascon. 56.

[2702] Ibid. 57.

[2703] P. 307 f.

[2704] Cic. Frag. A. vii (_Cornel._ i). 5; _Valin._ 2. 5; Ascon. 57 f.;
Quintil. _Inst._ x. 5. 3 (iv. 4. 8).

[2705] Ascon. 58; Dio Cass. xxxvi. 39. 4.

[2706] Cf. Lange, _Röm. Alt._ iii. 214; Mommsen, _Röm. Staatsr._ iii.
337 f.; Long, _Rom. Rep._ iii. 107. Dio Cassius, xxxvi. 39, has wholly
misunderstood the matter. Ferrero’s account (_Rome_, i. 194) of the
Cornelian legislation is inaccurate in all points.

[2707] Dio Cass. xxxvi. 38. 4; Cic. Frag. A. vii (_Cornel._ i). 40.

[2708] _CIL._ 1², p. 156; Klebs, in Pauly-Wissowa, _Real-Encycl._ i. 256
f.; Münzer, ibid. iii. 1376 f.

[2709] Ascon. 75.

[2710] Schol. Bob. 361; Ascon. 68, 89; Cic. _Mur._ 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.

[2711] Schol. Bob. 361; Dio Cass. xxxvi. 38; xxxvii. 25. 3; Greenidge,
_Leg. Proced._ 425, 508, 521 f.; Mommsen, _Röm. Strafr._ 867; Long,
_Rom. Rep._ iii. 105 f. It was supplemented by the lex Fabia de numero
sectatorum, apparently a plebiscite of 66; Cic. _Mur._ 34. 71; Mommsen,
ibid. 871; Drumann-Gröbe, _Gesch. Roms_, ii. 527.

[2712] XXXVI. 40. 1 f. (Foster’s rendering); cf. Ascon. 58; Cic. _Fin._
ii. 22. 74; Lange, _Röm. Alt._ ii. 656; iii. 215; Long, _Rom. Rep._ iii.
107 f.; Drumann-Gröbe, _Gesch. Roms_, ii. 527; Greenidge, _Leg. Proced._
95, 97 f., 122.

[2713] Ascon. 58. The restriction, however, was only partial; Erman,
in _Mélanges_ 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 Münzer, in Pauly-Wissowa,
_Real-Encycl._ iv. 1252-5; Drumann-Gröbe, _Gesch. Roms_, ii. 526-9.

[2714] Dio Cass. xxxvi. 23 ff.; Plut. _Pomp._ 25; Vell. ii. 31; App.
_Mithr._ 94.

[2715] Vell. ii. 31; Cic. _Verr._ ii. 3. 8; iii. 91. 213; Pseud. Ascon.
122, 176, 206; Schol. Bob. 234; Sall. _Hist._ iii. 4 f.

[2716] P. 428 f.

[2717] Dio Cass. xxxvi. 30. 2; cf. the deposition of Octavius, p. 367.

[2718] Cic. _Imp. Pomp._ 15. 44; Livy, ep. xcix; Eutrop. vi. 12.

[2719] Plut. _Pomp._ 26; Dio Cass, xxxvi. 37. 1; Cic. _Imp. Pomp._ 19. 57
f.

[2720] Sall. _Hist._ v. 13; cf. Klebs, in Pauly-Wissowa, _Real-Encycl._
i. 256.

[2721] Cf. Drumann-Gröbe, _Gesch. Roms_, 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.

[2722] Ascon, p. 64 ff.; Dio Cass. xxxvi. 42. 1-3.

[2723] Cic. Frag. A. vii (_Cornel._ i). 3.

[2724] Cic. _Mur._ 23. 47.

[2725] Ascon. 65 f. The Cn. Manlius mentioned by Ascon. 45 f. is probably
to be identified with this Manilius; Drumann-Gröbe, _Gesch. Roms_, iii.
19, n. 9.

[2726] XXXVI. 42. 3.

[2727] Ascon. 66, or more simply the “lex de imperio Cn. Pompeii”; Cic.
_Imp. Pomp._ Inscr.

[2728] Dio Cass. xxxvi. 42.4; Plut. _Pomp._ 30; _Lucull._ 35; App.
_Mithr._ 97; Livy, ep. c; Vell. ii. 33. 1; Eutrop. vi. 12.

[2729] Lange, _Röm. Alt._ iii. 219; Willems, _Sén. Rom._ ii. 586 f.

[2730] Cic. _Imp. Pomp._ 17. 51 ff.; 20. 59 ff.; Plut. _Pomp._ 30.

[2731] 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 treatment of Cicero’s motives.

[2732] P. 354.

[2733] P. 370.

[2734] P. 397; Cic. _Off._ iii. 11. 47; _Brut._ 16. 63; _Balb._ 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, _Röm. Alt._ iii. 229;
Drumann-Gröbe, _Gesch. Roms_, iii. 140.

[2735] Gell. i. 12. 11 f.; Suet. _Aug._ 31; Lange, ibid. ii. 675 f.; iii.
229; Wissowa, _Relig. u. Kult. d. Röm._ 439.

[2736] P. 391.

[2737] P. 416. On the lex Atia, see Dio Cass. xxxvii. 37. 1; Lange, _Röm.
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-Gröbe, _Gesch. Roms_, iii. 155 f.) the enactment of
the Atian law; Dio Cass. ibid.; Suet. _Caes._ 13; Vell. 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; Vell. ii. 40. 4; Dio Cass.
xxxvii. 21. 3 f.

[2738] Cic. _Leg. Agr._ iii. 2. 4.

[2739] Ibid. i. 2. 4; ii. 5. 13.

[2740] Ibid. ii. 7. 16-8; 8. 21.

[2741] Ibid. ii. 13. 34; 24. 64.

[2742] Ibid. ii. 9. 24.

[2743] Ibid. i. 5. 15; ii. 13. 33; 27. 72.

[2744] 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).

[2745] Ibid. ii. 25. 66.

[2746] Ibid. i. 5. 16 f.; ii. 13. 34; 20. 55; 24. 63; 25. 66; 26. 68; 27.
74 f.

[2747] 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. Roms_, ii. 223 ff.; Drumann-Gröbe, _Gesch.
Roms_, iii. 143; Ferrero, _Rome_, i. 231-3.

[2748] P. 431.

[2749] Cic. _Mur._ 32. 67.

[2750] Cic. _Vat._ 15. 37; p. 359 above.

[2751] _CIL._ i². p. 156.

[2752] Cic. _Mur._ 2. 3; 3. 5; 23. 47; 32. 67; Schol. Bob. 269, 309, 324,
362.

[2753] Cic. _Mur._ 23. 47.

[2754] Cic. _Vat._ 15. 37; _Sest._ 64. 133 (cf. _Har. Resp._ 26. 56);
Schol. Bob. 309.

[2755] Cic. _Mur._ 23. 47; 41. 89; _Planc._ 34. 83; Schol. Bob. 269, 362;
Dio Cass. xxxvii. 29. 1.

[2756] Cic. _Mur._ 23. 47. On the law in general, see Lange, _Röm. Alt._
iii. 245; Hartmann, in Pauly-Wissowa, _Real-Encycl._ i. 1801.

[2757] 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. Aufidius 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;
Hartmann, ibid. i. 1802.

[2758] Cic. _Fam._ xi. 1. 2; _Att._ ii. 18. 3.

[2759] Cic. _Leg._ iii. 8. 18.

[2760] Cic. _Fam._ xii. 21.

[2761] Cic. _Leg. Agr._ i. 3. 8; 17. 45; _Flacc._ 34. 86.

[2762] Cic. _Leg._ iii. 8. 18.

[2763] Cic. _Flacc._ 34. 86; _Fam._ xii. 21; _Att._ ii. 18. 3; xv. ii. 4;
Suet. _Tib._ 31; Lange, _Röm. 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. 1. 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.

[2764] Suet. _Caes._ 28. 3; Plut. _Cat. Min._ 17.

[2765] 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.

[2766] Val. Max ii. 8. 1. In 62 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. _Caes._ 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. _Att._ 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; _Parad._ iv. 2. 31; Plut. _Caes._ 10;
Mommsen, _Röm. Strafr._ 198 f.

[2767] Dio Cass. xxxvii. 51. 3; Cic. _Att._ ii. 16. I; _Q. Fr._ i. 1. 11.
33; Lange, _Röm. Alt._ iii. 274. These taxes were made unnecessary by
Pompey’s acquisitions in the East.

[2768] Cic. _Att._ i. 18. 6; 19. 4; Dio Cass. xxxvii. 50; Plut. _Cat.
Min._ 31.

[2769] P. 162.

[2770] P. 386.

[2771] Dio Cass. xxxviii. 1. 4. On the later inclusion of this territory,
see p. 440 below.

[2772] Suet. _Caes._ 20.

[2773] Cic. _Fam._ xiii. 4. 2.

[2774] Dio Cass. xxxviii. 1. 4 f.; Cic. _Dom._ 9. 23.

[2775] Dio Cass. xxxviii. 1. 3; App. _B. C._ ii. 10. 35; Plut. _Cat.
Min._ 31; _Pomp._ 47; _Cic._ 26.

[2776] App. _B. C._ iii. 2. 5; 7. 24.

[2777] Varro, _R. R._ i. 2. 10; Cic. _Att._ ii. 6. 2; 7. 3; ix. 2 a. 1;
Vell. ii. 45. 2; Dio Cass. xxxviii. 1. 6 f.; Suet. _Aug._ 4.

[2778] Dio Cass. ibid.

[2779] _CIL._ vi. 3826 (Elogium of M. Valerius Messala, consul in 61);
Cic. _Att._ ii. 7. 4; _Prov. Cons._ 17. 41.

[2780] _Röm. Staatsr._ ii. 628, n. 4.

[2781] Dio Cass. xxxviii. 2.

[2782] Ibid. 3 f.; Plut. _Caes._ 14; App. _B. C._ ii. 10.

[2783] Dio Cass. xxxviii. 6. 1.

[2784] P. 116.

[2785] The assembly met in the Forum, and was therefore tribal; Suet.
_Caes._ 20; Dio Cass. xxxviii. 6. 2; Plut. _Cat. Min._ 32.

[2786] Cic. _Att._ ii. 18. 2: “Ut ex legibus Iuliis” seems to be official
language. The explanation of Marquardt, _Röm. Staatsv._ i. 114 f., which
identifies one of the Julian laws with the lex Mamilia, Roscia, etc., is
not satisfactory, though accepted by Drumann-Gröbe, _Gesch. Roms_, 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.

[2787] _Att._ ii. 18. 2.

[2788] _Att._ ii. 3. 3 (Dec. 60); 6. 2; 7. 3.

[2789] _Att._ ii. 16. 1.

[2790] XXXVIII. 1. 4; 7. 3.

[2791] _Cat. Min._ 31, 33.

[2792] Lange, _Röm. Alt._ iii. 279-88, maintains that there were two
agrarian laws; cf. Ferrero, _Rome_, i. 287-91. The opposite view is held
by Marquardt, _Röm. Staatsv._ i. 114 f.; Drumann-Gröbe, _Gesch. Roms_,
iii. 182.

[2793] Dio Cass. xxxviii. 7. 3; _Cat. Min._ 33; Suet. _Caes._ 20; Vell.
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 settled 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; _Fam._ xiii. 35. 1. The franchise
was afterward withdrawn by a decree of the senate; Suet. and Plut. ibid.

[2794] Dio Cassius, xxxviii. 7. 1 f. (cf. Schol. Bob. 302; App. _B. C._
ii. 12. 42), is probably 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.

[2795] 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 Peducaea
Alliena Fabia, three articles of which are contained in Gromat. 263-6;
Bruns, _Font. Iur._ 96-8; Girard, _Textes_, 69 f. Other references to
a lex Mamilia are Gromat. 11. 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 _Röm. Feldmess._ ii.
221-6; _Röm. Staatsr._ ii. 628, n. 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
(_Röm. Alt._ ii. 690; iii. 288) and more decidedly Willems (_Sén. Rom._
i. 498, n. 5) prefer to regard it as a tribunician law and to assign it
to 55.

[2796] Cf. Polyb. vi. 17. 5; p. 345 above.

[2797] Suet. _Caes._ 20; Dio Cass. xxxviii. 7. 4; App. _B. C._ ii. 13.
48; Cic. _Att._ ii. 16. 2; Schol. Bob. 259, 261.

[2798] Cic. _Fam._ viii. 8. 3.

[2799] Pompey in his second consulship, 55, attempted in vain to displace
it by a still severer measure; p. 448.

[2800] Cic. _Att._ v. 10. 2; 16. 3.

[2801] Cic. _Pis._ 16. 37; 21. 49 f.; 37. 90; _Dom._ 9. 23; _Prov. Cons._
4. 7.

[2802] Cic. _Pis._ 37. 90.

[2803] 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.

[2804] _Dig._ xlviii. 11.

[2805] Cic. _Rab. Post._ 4. 8 f.; 11. 30.

[2806] Suet. _Caes._ 43; _Otho_, 2; Tac. _Hist._ i. 77; Paul. _Sent._ v.
28.

[2807] _Vat._ 12. 29. See further on the law, _Sest._ 64. 135; Schol.
Bob. 310, 321; Drumann-Gröbe, _Gesch. Roms_, iii. 195-7; Lange, _Röm.
Alt._ iii. 292; Mommsen, _Röm. Strafr._ 709; Greenidge, _Leg. Proced._
427, 483, 485.

[2808] Ci. _Vat._ ii. 27; _Planc._ 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-Gröbe, _Gesch. Roms_, iii.
197.

[2809] Dio Cass, xxxviii. 8. 1; Schol. Bob. 235.

[2810] Pliny, _N. H._ xxxiii. 10. 136; Joseph. _Ant. Iud._ xiv. 34 f.

[2811] Cic. _Att._ ii. 16. 2.

[2812] Caes. _B. C._ iii. 107. 6; Suet. _Caes._ 54; Dio Cass, xxxix. 12.
1; Cic. _Rab. Post._ 3. 6.

[2813] Dio Cass, xxxviii. 7. 5; App. _B. C._ ii. 13. 46; Plut.
_Lucull._ 42; _Pomp._ 48; Vell. ii. 44. 2; Lange, _Röm. Alt._ iii. 289;
Drumann-Gröbe, _Gesch. 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 probably as
Caesar’s instrument; Cic. _Vat._ 12. 29; _Fam._ i. 9. 7; _Att._ ii. 9. 1.

[2814] P. 163.

[2815] 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.
1; v. 1. 5.

[2816] Caes. _B. G._ i. 10.

[2817] Caes. _B. G._ i. 21.

[2818] Suet. _Caes._ 22; Dio Cass. xxxviii. 8. 5; Plut. _Caes._ 14;
_Pomp._ 48; _Crass._ 14; _Cat. Min._ 33. The resolutions of people and
senate are combined by App. _B. C._ ii. 13. 49; Vell. ii. 44. 5; Zon. x.
6; cf. Drumann-Gröbe, _Gesch. Roms_, iii. 198 f.

[2819] Cf. Ferrero, _Rome_, i. 290.

[2820] Drumann-Gröbe, ibid.

[2821] On the consulship of Caesar see further Long, _Rom. Rep._ III. ch.
xix; Lange, _Röm. Alt._ iii. 278-96; Herzog, _Röm. Staatsverf._ i. 550-3;
Drumann-Gröbe, _Gesch. Roms_, iii. 177 ff.; the histories of Mommsen,
Peter, Ferrero, etc., and the various biographies of Caesar.

[2822] Cic. _Sest._ 25. 55; Dio Cass. xxxviii. 13. 1; Ascon. 9; Schol.
Bob. 300 ff.

[2823] Six and a third asses to the modius; p. 372. The frumentarian
law of Appuleius Saturninus for lowering the price to five-sixths of an
_as_ had been annulled (p. 395 f.), and the law in force in 82, whether
the Sempronian or the Octavian, was repealed by Sulla (p. 422). Lepidus,
consul in 78, carried a law for the distribution of five modii of grain
to the citizen, at what price and at what interval is not stated (p. 423,
n. 8). There was also a lex frumentaria of the consuls of 73, C. Cassius
Varus and M. Terentius Varro (Cic. _Verr._ iii. 70. 163; v. 21. 52; cf.
Sall. _Hist._ iii. 48. 19). It must have restored, or maintained, the
Sempronian price, which according to the sources was displaced by the
Clodian 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. _Dom._ 10. 25. See further
Humbert, in Daremberg et Saglio, _Dict._ ii. 1346 f.

[2824] Cic. _Sest._ 25. 55.

[2825] Cic. ibid.; _Red. in Sen._ 13. 33; Dio Cass. xxxviii. 13. 1 f.;
Plut. _Cic._ 30.

[2826] Cic. _Pis._ 4. 9; _Sest._ 25. 55; Ascon. 9, 67; Dio Cass. xxxviii.
13. 2; Liebenam, _Röm. Vereinswes._ 21; Waltzing, _Corp. prof._ i. 92.

[2827] Cf. Ferrero, _Rome_, i. 300.

[2828] P. 117.

[2829] Cic. _Sest._ 15. 33; p. 471.

[2830] Ascon. 9: Dio Cass. xxxviii. 13. 2; Schol. Bob. 300; cf. Cic.
_Pis._ 4. 9; _Sest._ 25. 55.

[2831] Suet. _Dom._ 9. 3: Lange, _Röm. Alt._ iii. 308.

[2832] Vell. ii. 45. 1; Livy, ep. ciii; Dio Cass. xxxviii. 14. 4; Plut.
_Cic._ 30; cf. Drumann-Gröbe, _Gesch. Roms_, ii. 208 f.

[2833] P. 371.

[2834] We hear many echoes of this theory in the speeches of Cicero which
refer to the Catilinarian conspiracy; cf. _Cat._ ii. 2. 3; 8. 17; iv. 5.
10 (admitted by C. Caesar); 7. 15; 10. 22.

[2835] This act accorded with earlier usage; p. 249, 267, 395. On
the original rogation 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, _Röm.
Strafr._ 970, n. 2, 978, n. 1.

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, _Röm. 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.
Ill._ 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-Gröbe, _Gesch. Roms_, ii. 202 ff.; Fröhlich, in
Pauly-Wissowa, _Real-Encycl._ iv. 82-8; White, _Cicero, Clodius, and
Milo_, 16 ff.

[2836] Cic. _Dom._ 33. 90; _Pis._ 15. 35 f.; _Red. in Sen._ 11. 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
proposed early in 57; the others near the end of 58.

[2837] Cic. _Att._ iv. 1. 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 proconsular imperium of P. Cornelius Lentulus failed to become a
law (Cic. _Q. Fr._ ii. 3. 1; _Fam._ 1. 5 a. 2); also the rogation of
his colleague L. Caninius for commissioning 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.

[2838] An interregnum was forced in order to secure a more favorable
chairman for the elections than were the consuls of 56.

[2839] Plut. _Caes._ 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).

[2840] Cic. _Att._ iv. 9. 1; Dio Cass. xxxix. 33. 1 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.

[2841] Dio Cass. xxxix. 34 f.; Plut. and Livy, ibid.

[2842] Dio Cass. xxxix. 33. 3 f.

[2843] Dio Cass. xxxix. 37. 1.

[2844] Cic. _Planc._ 15. 36; 16. 40; 17. 41.

[2845] Ibid. 15. 36 ff.; Schol. Bob. 253 f., 261.

[2846] Cic. _Planc._ 16. 40; Schol. Bob. 262; Lange, _Röm. Alt._ iii. 340
f.

[2847] 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.

[2848] Paul. _Sent._ v. 24; _Dig._ xlviii. 9; cf. i. 2. 2. 2. 32, which
is inexact; Lange, _Röm. Alt._ ii. 667.

[2849] 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 repetundarum, although it was possible to bring
action against them for corrupt jury service; cf. p. 378, n. 3.

[2850] Dio Cass. xxxix. 37.

[2851] Cic. _Pis._ 39. 94; _Phil._ i. 8. 20; Ascon. 16; Pseud. Sall.
_Rep. Ord._ ii. 3. 2 f.; cf. 7. 11 f.; 12. 1; cf. Greenidge, _Leg.
Proced._ 448.

[2852] 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.

[2853] Cic. _Att._ vii. 1. 4; 3. 4; viii. 3. 3; _Fam._ vi. 6. 5; xvi. 12.
3; _Phil._ ii. 10. 24; Suet. _Caes._ 26; Caes. _B. C._ i. 32; Dio Cass.
xl. 51. 2.

[2854] Dio Cass. xl. 56. 1; Suet. _Caes._ 28. 3.

[2855] Dio Cass. xl. 46. 2.

[2856] Ibid, and 56. 1; cf. 30. 1.

[2857] P. 381.

[2858] Hirschfeld, in _Klio_, iv (1904). 76-87; Drumann-Gröbe, _Gesch.
Roms_, iii. 720 ff.

[2859] 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 concerning 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 Manilian law of 67 (p. 433); Ascon. 52; Schol. Bob.
346.—(4) Possibly a lex Scribonia 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. _Att._ vi.
1. 25.—(7) An unpassed Scribonian 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.

[2860] Dio Cass. xli. 36. 1 f.; Caes. _B. C._ ii. 21; App. _B. C._ ii.
48. 196; Plut. _Caes._ 37.

[2861] Caes. _B. C._ iii. 2; App. _B. C._ ii. 48. 196 f.; Plut. _Caes._
37.

[2862] Here seems to belong the plebiscite of A. Hirtius concerning the
partisans of Pompey (Cic. _Phil._ xiii. 16. 32; _CIL._ i. p. 627 f.;
Willems, _Sén. Rom._ i. 592), though Mommsen (_CIL._ l. c.) assigns it to
46.

[2863] Dio. Cass. xlii. 20.

[2864] 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.

[2865] Dio Cass. xlii. 20.

[2866] Dio Cass. xliii. 14; cf. Drumann-Gröbe, _Gesch. Roms_, iii. 48 f.

[2867] Dio Cassius, xliii. 42-6, describes them at great length, whereas
Suetonius, _Caes._ 76, is content with a brief enumeration.

[2868] Dio Cass. xliii. 44; _CIL._ ix. 2563; cf. Mommsen, _Röm. Staatsr._
ii. 767, n. 1.

[2869] The right to the consulship was granted according to Dio Cassius,
xliii. 45. 1 (προεχειρίσαντο), 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-Gröbe, _Gesch. Roms_, iii. 739.

[2870] Dio Cass. xliv. 5. 3.

[2871] Ibid. 7. 3; Suet. _Caes._ 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. 110).

[2872] Cf. Bondurant, _Dec. Jun. Brut._ 40.

[2873] Caes. _B. C._ iii. 1; Cic. _Att._ vii. 11. 1.

[2874] Caes. _B. C._ iii. 1; Suet. _Caes._ 42; Dio Cass. xli. 37 f.; App.
_B. C._ ii. 48. 198; Plut. _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.

[2875] Dio Cass. xli. 38. 1 f.; Cic. _Att._ ix. 9. 4.

[2876] 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. _B. 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; Vell. ii. 68. 1 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).

[2877] Suet. _Caes._ 38; Dio Cass. xlii. 51. 1.

[2878] On the similar measure of Octavianus, see p. 459. See also Lange,
_Röm. Alt._ ii. 694; iii. 435.

[2879] This measure seems to have been brought about by no law but merely
through his censorial power; Lange, _Röm. Alt._ iii. 448; Drumann-Gröbe,
_Gesch. Roms_, iii. 557.

[2880] 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-Gröbe, _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 Corinth (Dio Cass. ibid. §
4; Plut. ibid.; Strabo viii. 6. 3; xvii. 3. 15; Paus. ii. 1. 2; 3. 1).
The colonia Genetiva Iulia Urbanorum in Spain was founded in 44 after
the death of Caesar, but iussu C. Caesaris dict. imp. et lege Antonia
senat(us)que c(onsulto) pl(ebi)que (scito)—by a consular 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 (_CIL._ 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.

[2881] Suet. _Caes._ 42. At the same time measures were taken to prevent
those residents 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.

[2882] Dio Cass. xli. 18. 2; xliv. 47. 4; Plut. _Caes._ 37; Suet. _Caes._
41; cf. Lange, _Röm. Alt._ iii. 416.

[2883] Caes. _B. C._ iii. 1; cf. Suet. _Caes._ 41.

[2884] Cic. _Phil._ xii. 4. 10; Tac. _Ann._ xi. 24; Dio Cass. xli. 36.
3; cf. xxxvii. 9. 3-5. Mommsen, _Röm. Staatsr._ iii. 134; 159, n. 1;
Krüger-Brissaud, _Sourc. d. droit Rom._ 97, for the authorship of the law.

The so-called lex Rubria de Gallia Cisalpina (_CIL._ i. 205 = xi. 1146;
Bruns, _Font. Iur._ 98-102; Girard, _Textes_, 70-76) seems to be a lex
data, probably of 49 [Mommsen, in _Wiener Studien_, xxiv (1902). 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.

[2885] Dio Cass. xli. 24. 1; cf. Livy, ep. cx. The monarchical quality of
his rule shows itself in his bestowal of the citizenship on individuals
at his own pleasure; cf. Mommsen, _Röm. 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, _Att._ xiv. 12. 1,
states positively that no mention was even made of such a proposition in
the dictator’s lifetime.

[2886] 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.

[2887] Dio Cass. xlii. 51. 3; cf. Lange, _Röm. Alt._ iii. 437; p. 416
above. The addition of one to the fifteen members of the great sacerdotal
colleges (Dio Cass. ibid.; cf. Cic. _Fam._ 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.

[2888] Cic. _Phil._ vii. 6. 16.

[2889] Suet. _Caes._ 41; cf. Dio Cass. xliii. 51. 3. The pretext was the
impending Parthian 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-Gröbe, _Gesch. Roms_, iii. 612, n. 3.

[2890] 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, _Röm. Staatsr._ i. 630, n. 4.

[2891] P. 427.

[2892] Suet. _Caes._ 41; Dio Cass. xliii. 25. 1. Cicero, _Phil._ i. 8.
19, intimates, without positively stating, that this was a centuriate
law; p. 236 above.

[2893] Cf. Lange, _Röm. Alt._ iii. 455; Drumann-Gröbe, _Gesch. Roms_,
iii. 558.

[2894] 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 relative the whole; Suet. _Caes._ 42; cf. Dio Cass.
xliv. 49. 3.

[2895] Cic. _Phil._ i. 9. 23.

[2896] 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-Gröbe, _Gesch. Roms_, iii. 560. 4; cf. Lange, _Röm. Alt._ iii.
455. The leges Iuliae which abolished what remained of the legis actiones
(Gaius iv. 30) are also supposed to belong to Augustus; Poste, _Gaius_,
474.

[2897] Cic. _Att._ xiii. 7.

[2898] Cic. _Fam._ ix. 15. 5; 26. 3; Suet. _Caes._ 43.

[2899] Cic. _Att._ xii. 35; 36. 1.

[2900] Cic. _Att._ xiii. 7; Suet. _Caes._ 43; Dio Cass. xliii. 25. 2; cf.
Drumann-Gröbe, _Gesch. Roms_, iii. 559; Lange, _Röm. Alt._ iii. 450. The
officials failed to enforce it effectively; Suet. ibid.

[2901] P. 164.

[2902] 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 provinciis (Voigt, _Röm.
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
legationibus, limiting their duration (Cic. _Att._ xv. 11. 4), also
belongs to 46.

[2903] _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 proscriptions (§
121), it must have followed the downfall of the Cornelian régime 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. 1 (Jan., 45) as of a law freshly
passed, proves it to be no later than January, 45; cf. Savigny, _Verm.
Schr._ iii (1850). 279-412; Karlowa, _Röm. Rechtsgesch._ i. 438; Girard,
_Textes_, 78. It must have been passed, therefore, before Caesar set out
for Spain, about November, 46; Drumann-Gröbe, _Gesch. Roms_, iii. 569.

[2904] For the various hypotheses, see Hackel, in _Wiener Studien_, xxiv
(1902). 552-62.

[2905] Kalb, in _Jahresb. ü. 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 _Digesta_
(1. 9. 3; _Cod._ vii. 9. 1), proposed by Savigny, ibid., is not certain;
Girard, _Textes_, 78.

[2906] _Lex Iul. Mun._ 1-19.

[2907] _Lex Iul. Mun._ 20-82.

[2908] Ibid. 83-142.

[2909] Ibid. 143-59.

[2910] Ibid. 160-4.

[2911] 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.

[2912] 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, _Röm. Alt._
iii. 435; Liebenam, _Röm. Vereinswes._ 27.

[2913] 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, _Röm. Alt._ iii. 526. The policy of using the departed Caesar as a
means of self-aggrandizement 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; Vell. ii. 69.
5; Suet. _Ner._ 3; _Galb._ 3; Dio Cass. xlvi. 48 f.; App. _B. C._ iii.
95; Aug. _Mon. Ancyr._ i. 10; Mommsen, _Röm. Strafr._ 199.

The lex Rufrena in honor of Caesar (_CIL._ i. 626) probably belongs to
42; Lange, ibid. 556; Herzog, _Röm. Staatsverf._ ii. 89, n. 3. In te
same year falls the lex of the triumvirs which changed the birthday of
Caesar from July 12 to 5 (Fowler, _Rom. Fest._ 174) and compelled all to
celebrate it; Dio Cass. xlvii. 18. 5.

[2914] Cic. _Phil._ v. 4. 10; _Lex Col. Genet._ 104.

[2915] Lange, _Röm. Alt._ iii. 499. After this law had been annulled by a
senatus consultum (p. 457, n. 7), the settlements made by Antonius were
confirmed by a centuriate law of C. Vibius Pansa, consul in 43; Cic.
_Phil._ xiii. 15. 31.

[2916] Dio Cass. xlv. 9. 1.

[2917] Cicero, _Phil._ v. 3. 7, says all Italy; 7. 20; vi. 5. 13.

[2918] Ibid. v. 7. 21; vi. 5. 14; viii. 9. 26; xii. 9. 23.

[2919] Ibid. v. 7. 21; vii. 6. 17.

[2920] Ibid. ii. 38. 99; v. 12. 33; _Alt._ xv. 19. 2.

[2921] Cic. _Phil._ v. 3; vi. 5. 14; xi. 6. 13.

[2922] Dio Cass. xliv. 53. 7; cf. Livy, ep. cxvii; Vell. ii. 63. 1; 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.

[2923] P. 455.

[2924] Cic. _Phil._ i. 8. 19; v. 5 f.; 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.

[2925] Cic. _Phil._ i. 9. 21 f.

[2926] Ibid.

[2927] Cic. _Phil._ v. 4. 10; p. 457, n. 7. The lex Antonia on the
dictatorship was doubtless renewed by a lex Vibia; Cic. l. c.

[2928] Dio Cass. xlvi. 55. 3.

[2929] Aug. _Mon. Ancyr._ i. 8; App. _B. C._ iv. 7. 27; Herzog, _Röm.
Staatsverf._ ii. 84, 89.

[2930] Dio Cass, xlvii. 15. 4 (ἐψηφίσαντο ordinarily implies a comitial
vote); cf. Lange, _Röm. Alt._ ii. 680. The grant of lictors to the
Vestals in 42 may also have been effected by a 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.

[2931] Dio Cass. xlviii. 9. 5. Lange, _Röm. Alt._ iii. 565, assumes a
vote of the comitia.

[2932] 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, _Röm. Alt._ ii. 662, regards
the word Glitia as a copyist’s error for Falcidia.

[2933] Dio Cass. xlvii. 13. 3.

[2934] Dio Cass. xlix. 38. 1.

[2935] Aug. _Mon. Ancyr._ ii. 1; Tac. _Ann._ xi. 25; Dio Cass. lii. 42.
5; cf. Herzog, _Röm. Staatsverf._ ii. 130.

[2936] Plut. _Ti. Gracch._ 9; Cic. _Att._ iii. 23. 4; Lange, _Röm. Alt._
ii. 649; Karlowa, _Röm. Rechtsgesch._ i. 427.

[2937] Cic. _Leg. Agr._ ii. 5. 13; Dion. Hal. x. 57. 5; Livy iii. 34. 1;
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
adscriptores; 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._ 15. 35; _Red. in Sen._ 2. 4; 9. 22;
_Sest._ 33. 72; _Fam._ i. 9. 16.

[2938] Cic. _Att._ i. 19. 4; _Inv._ ii. 45. 130 f.; Ascon. 57; Livy iii.
34. 4 ff.

[2939] Cic. _Sull._ 22. 62.

[2940] Cic. _Leg. Agr._ ii. 9. 22.

[2941] Frontinus, _De aquis urbis Romae_, ch. 129; Bruns, _Font. Iur._
115; Girard, _Textes_, 103-5; _Lex Agr._ 1 (_CIL._ i. 200).

[2942] The Italics supply lacunae. See also Cic. _Phil._ i. 10. 26;
Probus, in _Gramm. Lat._ iv. 272 (Keil).

[2943] Or the several names of a group of rogatores (cf. Livy iv. 1.
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, _Röm.
Staatsr._ iii. 315, n. 2.

[2944] Cf. Probus, in _Gramm. Lat._ iv. 272.

[2945] He was either taken by lot or appointed by the presiding
magistrate; Cic. _Planc._ 14. 35.

[2946] As in the _Lex de Termess._ 1.

[2947] Ex h(ace) l(ege) plebive scito; _Lex Lat. Bant._ (3). 15; Bruns,
_Font. Iur._ 55; Girard, _Textes_, 31; _Lex Agr._ 2 (_CIL._ i. 200).

[2948] 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, _Épigr. Lat._ 266.

[2949] _Dig._ xlviii. 19. 41; Cic. _Att._ iii. 23. 2 f. The substance of
the sanctio comprising the extant fragment of the _Lex Lat. Bant._ is
given on p. 379. On the lex sacrata, see p. 264 f.

[2950] 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. 352), 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._ 1. A lex perfecta not only prescribes a
penalty but nullifies a contravening act. These distinctions apply only
to the civil law. Cf. Ulp. l. c.; Karlowa, _Röm. Rechtsgesch._ i. 428;
Poste, _Gaius_, 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 explanation.

[2951] _Dig._ xiii. 2. 1; Gromat. 265.

[2952] Cf. _Frag. Atest._ in Bruns, _Font. Iur._ 101; Girard, _Textes_,
78; _Lex Acil. rep._ 78 (_CIL._ i. 198).

[2953] “Si quid ius non est rogarier, eius ea lege nihilum rogatur”; Cic.
_Caec._ 33. 95; _Dom._ 40. 106; _Lex Tudert._ (_CIL._ i. 1409) 10 f. A
far more detailed formula is given by Cic. _Att._ iii. 23. 3.

[2954] “Si quid sacri sancti est, quod non iure sit rogatum, eius hac
lege nihil rogatur”; Probus, in _Gramm. Lat._ iv. 273.

[2955] P. 233 f.

[2956] _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 consulto facere oportebit,
non fecerit huius legis ergo, id ei ne fraudi esto, neve quit ob eam 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 consultum, it has the form of a law and is so called by itself;
cf. Mommsen, _Röm. Staatsr._ ii. 876-9. All such formulae were indicated
by the series of initial letters of the component words; Probus, in
_Gramm. Lat._ iv. 272 f.

[2957] Fest. 314. 29: “Neve per saturam abrogato aut derogato”; _Lex
Tudert._ 9; Cic. _Att._ iii. 23. 3.

[2958] This is true of the Lex Lat. Bant. (p. 380), the Appuleian laws
(p. 395), and the Julian agrarian law of 59 (p. 440).

[2959] As by forbidding tribunician intercession; _Lex Mal._ 58; Cic.
_Leg. Agr._ ii. 12. 30.

[2960] Cic. _Att._ iii. 23. 2.

[2961] Lange, _Röm. Alt._ ii. 652.

[2962] 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. 1.

[2963] 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.

[2964] “Unde de piano recte legi possit”; Probus, in _Gramm. Lat._ iv.
273, for example, the Forum; Dion. Hal. x. 57. 7. Plebiscites and senatus
consulta of international importance could be found in the temple of
Faith on the Capitoline hill; Suet. _Vesp._ 8; Obseq. 68. For other
places, see Lange, _Röm. Alt._ ii. 652 f.

[2965] Under the aedile for judicial business only; p. 325.

[2966] P. 276.

[2967] Cf. p. 304.

[2968] For judicial business only; p. 292.

[2969] P. 327.

[2970] P. 141. For instance, the dictator; p. 416, n. 1.

[2971] Livy xxv. 3. 14; xxxiii. 25. 7; xxxiv. 1. 4; 53. 2; xliii. 16. 9;
xlv. 36. 1; App. _B. C._ i. 15. 64; Plut. _Ti. Gracch._ 17; _C. Gracch._
13; _Aemil._ 31; Ascon. 77.

[2972] 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.

[2973] Varro, _R. R._ iii. 2. 5; Cic. _Planc._ 9. 16; _Att._ i. 1. 1; iv.
3. 4; _Fam._ vii. 30. 1.

[2974] Livy iii. 54. 15; xxvii. 21. 1; cf. Richter, _Top. v. Rom_, 48,
212; Platner, _Top. and Mon. of Anc. Rome_, 343.

[2975] Livy iii. 20. 7.

[2976] P. 297. Meetings distant from the city were soon afterward
forbidden by law.

[2977] Vocare tribus in (or ad) suffragium (Cic. _Planc._ 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).

[2978] Livy xxv. 3. 16; _Lex Mal._ 53; Fest. 127. 1. These sources prove,
against Lange, _Röm. 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, _Röm. Staatsr._ iii. 232, n. 2,
396 f., 643 f.

[2979] In the opinion of Mommsen, _Röm. Staatsr._ iii. 397, n. 4, 411,
n. 7; _Abhdl. sächs. 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 Mal._ 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. Furthermore 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, _Röm. Staatsverf._ 1184, and ignored by most other writers,
including Liebenam, inconsistently; ibid. 706.

[2980] “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.

[2981] Dion. Hal. vii. 59. i; App. _B. C._ iii. 30. 117.

[2982] Serv. _in Bucol._ i. 33; Ovid, _Fast._ i. 53; Cic. _Mil._ 15. 41.

[2983] The marble building, known as the Saepta Julia, begun in 54 by
Julius Caesar (Cic. _Att._ iv. 16. 14), was finished by Agrippa in 27
B.C. A plan is given by Platner, _Top. and Mon. of Anc. Rome_, 365, who
describes it at length; cf. Richter, _Top. v. Rom_, 230 ff.

[2984] Cic. _Sest._ 51. 109; p. 129 above.

[2985] 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.) _Herenn._ 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.

[2986] P. 115.

[2987] Livy ix. 46. 2; Gell. vii (vi). 9. 2.

[2988] Dion. Hal. vii. 59. 9; 64. 6.

[2989] 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, _Röm. Staatsr._ iii. 403, n. 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.

[2990] P. 359, 390.

[2991] U. R. and presumably A.; Cic. _Att._ i. 14. 5; Mommsen, _Röm.
Staatsr._ iii. 402, n. 2. There were corresponding abbreviations for
trials; Liebenam, in Pauly-Wissowa, _Real-Encycl._ iv. 692; cf. p. 178 f.
above.

[2992] Plut. _Cat. Min._ 46; Suet. _Caes._ 80. These names might also be
abbreviated; Cic. _Dom._ 43. 112.

[2993] Sisenna, Frag. 118 (Peter, _Reliq._ i. 293); (Cic.) _Herenn._ i.
12. 21; Plut. _Ti. Gracch._ 11. The voting within the curiae was also by
heads; Livy i. 43. 10; Dion. Hal. iv. 20. 2.

[2994] Cic. _Red. in Sen._ 11. 28; _Pis._ 15. 36; _Lex Mal._ 55 (Bruns,
_Font. Iur._ 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.

[2995] Cic. _Planc._ 20. 49; _Pis._ 5. 11; 15. 36; Varro, _R. R._ iii. 5.
18.

[2996] Cic. _Planc._ 14. 35. The order of announcement of the curial
votes was likewise determined by lot; _Lex Mal._ 57. Livy, ix. 38. 15,
refers to the sortition for the principium.

[2997] Varro, in Gell. x. 1. 6; Cic. _Pis._ 1. 2; _Mur._ 17. 35; Plut.
_C. Gracch._ 3; _Caes._ 5; Suet. _Vesp._ 2. In the case of censors alone
no declaration was made unless two were elected; Livy ix. 34. 25.

[2998] _Lex Mal._ 57; Cic. _Mur._ 1. 1; Gell. xii. 8. 6. In like manner
in the comitia curiata a majority of the curiae decided; Dion. Hal. ii.
14. 3.

[2999] 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, 111,
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.

[3000] _Twelve Tables_ i. 9: “Solis occasus suprema tempestas esto”;
Documents in Varro, _L. L._ vi. 87, 92; _Declam. in Cat._ 19; cf. Livy x.
22. 7 f.

[3001] For the presidency of the tribunus celerum, see Livy i. 59. 7;
cf. Humbert, in Daremberg et Saglio, _Dict._ i. 1377. It is denied by
Liebenam, in Pauly-Wissowa, _Real-Encycl._ iv. 682.

[3002] Livy ix. 38. 15; p. 112 above.

[3003] P. 195 f.

[3004] Cic. _Rep._ ii. 13. 25; 17. 31.

[3005] Cic. _Leg. Agr._ ii. 11. 28.

[3006] P. 155.

[3007] P. 154.

[3008] Livy v. 52. 15; Dio Cass. xli. 43.

[3009] Varro, _L. L._ v. 155; Livy, ibid.; cf. Fest. ep. 38.

[3010] P. 154.

[3011] Gell. xv. 27. 2.

[3012] Dion. Hal. ii. 8. 4; p. 31 above; cf. Mommsen, _Röm. Staatsr._
iii. 386.

[3013] On the procedure, see Liebenam, in Pauly-Wissowa, _Real-Encycl._
iv. 682-4.

[3014] P. 103, 140, 203, 244, 245. The censors convoked it for the census
and the lustrum only; p. 204.

[3015] He could not hold these comitia for elections; Livy xxii. 33. 9.

[3016] See references in the next to the last note above.

[3017] Livy v. 52. 15; Gell. xv. 27. 5; Cic. _Rab. Perd._ 4. 11.

[3018] Varro, _L. L._ vi. 88, 91; cf. Verg. _Georg._ ii. 539.

[3019] P. 203, n. 2.

[3020] P. 150.

[3021] Livy xxvi. 22. 11; Juv. vi. 529; Serv. _in Bucol._ i. 33.

[3022] 70 of the first class—1 prerogative + 18 equestrian.

[3023] Cic. _Att._ i. 14. 5; (Cic.) _Herenn._ i. 21; Fest. 334. 16.

[3024] P. 359, 390, 467.

[3025] P. 211, 226 f.

[3026] Cic. _Fam._ vii. 30.

[3027] 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.

[3028] Varro, _L. L._ vi. 29: “Comitiales dicti quod tum 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._
i². p. 231); Ovid, _Fast._ i. 53; Fest. ep. 38.

[3029] For the various local Italian calendars with Mommsen’s comment,
see _CIL._ i². p. 203 ff. Especially useful is the Diei notarum
laterculus, ibid. p. 290 ff.

[3030] On the distinction between dies fasti and dies nefasti, see Varro,
_L. L._ vi. 29 f., 53; Macrob. _Sat._ i. 16. 14; _Fast. Praen._ ad Ian.
2; Ovid, _Fast._ i. 47; Fest. ep. 93; Gaius iv. 29.

[3031] March 24 and May 24; p. 159, n. 8.

[3032] June 15. For the 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._ i². p. 289. These three days were called fissi; Serv.
_in Aen._ vi. 37.

[3033] Dies endotorcisi or intercisi; Varro, _L. L._ vi. 31; Macrob.
_Sat._ i. 16. 3; Ovid, _Fast._ i. 49; Mommsen, in _CIL._ i². p. 290.

[3034] 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.

[3035] Mommsen, in _CIL._ i². p. 296; 109 according to Wissowa, _Relig.
u. Kult. d. Röm._ 368 f.

[3036] 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, 17, 18, 20, 22, 26-31—xv.
    Aug. 3, 4, 7, 8, 10-12, 15, 16, 18, 20, 24, 26, 28, 31—xv.
    Sept. 4, 7-11, 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.

[3037] Wissowa, ibid. 378.

[3038] Varro, in Macrob, _Sat._ i. 16. 19; _L. L._ vi. 29.

[3039] Varro, _R. R._ ii. praef. 1; Serv. _in Georg._ i. 275.

[3040] 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, _Textes_, p. 13), in Gell. xx. i. 45 ff.; cf. especially §
47: “Trinis nundinis continuis ad praetorem in comitium producebantur,
quantaeque pecuniae iudicati essent, praedicabatur.”

[3041] Dion. Hal. vii. 59. 3: Ἐν δὲ ταύταις (ἀγοραῖς) συνιόντες ἐκ τῶν
ἀγρῶν εἰς τὴν πόλιν οἱ δημοτικοί τὰς τ’ ἀμείψεις ἐποιοῦντο τῶν ὠνίων κὰι
τὰς δίκας παρ’ ἀλλήλων ἐλάμβανον, τά τε κοινά, ὅσων ἦσαν κύριοι κατὰ
τοὺς νόμους καὶ ὅσα ἡ βουλὴ ἐπιτρέψειεν αὐτοῖς, ψῆφον ἀναλαμβάνοντες
ἐπεκύρουν; Rutilius, in Macrob. _Sat._ i. 16. 34: “Romanos 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.

[3042] Gran. Licinian. in Macrob. _Sat._ i. 16. 30 (quoted p. 315, n. 2).

[3043] Cf. Lange, _Röm. Alt._ ii. 518 f.




INDEX

Abbreviations: c. = consular, d. = dictatorial, p. = pretorian, t. =
tribunician. The numbers in parentheses are dates B.C.


  Abacti, 391.

  Abjuration of social rank, 156, 162, 163, 165.

  Abrogation, of imperium, 324, n. 1, 342, 360, 390, 404;
    of tribunician power, 366, 367 f., 432, 455;
    of pretorian power, 455, 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), 11, 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 plebem, 162, 443.

  Adscriptivi, 80, n. 5.

  Adsidui, 61.

  Aediles, election of, 127;
    presidency of contio, 141;
    of comitia, 292, 465;
    jurisdiction 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;
    instituted, 234, 291;
    presidency of comitia, 292, 465;
    jurisdiction before Hortensius, 291 f.;
    after Hortensius, 325-7.

  Aediles, plebeian, instituted, 262;
    election of, 262, 272;
    bailiffs of tribunes, 264, n. 5;
    sacrosancti, n. 7, 274;
    Valerian-Horatian law on, 274, 278 f.;
    relation to tribunes, 290;
    jurisdiction, before Hortensius, 195, 290-2;
    after Hortensius, 325-7;
    presidency of comitia, 292, 465.

  Aemilius Lepidus, M., his imperium abrogated (136), 360, 367.

  Aemilius Lepidus, M., consul (78), 423, 425.

  Aemilius Paulus, L., trial of (218), 318.

  Aemilius Scaurus, M., trial of, for neglect of duty (103), 323;
    for maiestas (91), 257, 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.;
    registration in tribes, 50, 54, 60 f., 64;
    publicus, 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, 350.

  Aliens, treatment of, 38;
    under jurisdiction of senate, 254;
    of people, 255;
    expulsions 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, 431, 436 f., 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;
    tribune (49), 453 f.;
    consul (44), 454, n. 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;
    from military imperium, 251 f.;
    from tribunes in capital cases, 268;
    when most used, 328;
    right offered as reward, 378.

  Appian, on new tribes (90), 57 f.;
    reëlection 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), 323 f.

  Appuleius Saturninus, L., weakens veto, 117;
    interdicts Metellus, 257, n. 5;
    murdered, 258 f., 396;
    tribune (103, 100), 393-6.

  Ἀρχαιρεσία, 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-Servian, 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.;
    political 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, 153, n. 3, 168, 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, Concilium, 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, 101, 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 nuntiatio, 111 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, n. 6;
    private, 100-3;
    nuptial, 100, n. 4;
    public, 100, 101, 103-18;
    impetrativa, 103-11;
    assemblies requiring, 110 f.;
    oblativa, 111-8;
    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;
    borrowing of, 244, 245, 280, 315;
    violated by consul, 248;
    of first tribunician election, 263, n. 1;
    support nobility, 330 f.

  Auspicium, 100, 102 f.;
    deputed, 104, 244, 245, 280, 315;
    lex for, 179;
    see Auspices.

  Auxilium, tribunician, 253, 263, 414.

  Aventine hill, 2, n. 6;
    outside the Servian tribes, 59;
    so-called lex Icilia for assignment of, 238, 265, n. 1, 272 f.


  Bacchanalians, 254, n. 3.

  Ballot, 467;
    laws on, 359, 369, 371, 389 f.;
    use of in quaestiones, 420;
    in all comitia, 469;
    boxes, 389, 467.

  Belot, on ratings, 91-3.

  Berns, on comitia and concilium, 126.

  Bibulus, spectio of, 114, n. 9, 116, n. 1, 439.

  Bill, see Rogatio.

  Birds, auspices from, 108.

  Bird-seer, 105, n. 1.

  βουλή, 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., prosecution 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, n. 1.

  Caerites, 62.

  Caesetius Flavius, L., tribune (44), 324, 455.

  Calabra, curia, 154, 468.

  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, 365 f., 373;
    under lex Iulia, 439, 440.

  Campanians, punished for revolt, 254, 340;
    senatus consultum on, 353.

  Campus Martius, meeting place of centuries, 108, 203, 469;
    of tribes, 465;
    president’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, 111;
    preside over contio, 141;
    inspect arms, 204;
    election of, 229;
    centuriate sanction, 237;
    laws on, 237, 300, 307;
    grant citizenship, 283, 304;
    prosecution of, 318;
    reëlection 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, n. 2.

  Census, connection of with tribes, 50, 54, 59;
    money valuation in, 65;
    instituted, 53, 68, n. 7, 76;
    Greek, 71;
    post-Servian, 77;
    object of, 204;
    after reform, 216;
    under lex municipalis, 457.

  Centuria procum (patricium), 67, n. 3, 75, n. 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 organization, 264, n. 7;
    forfeiture of estates to, 267, 274;
    senatus consulta in temple of, 278 f., 465, n. 2.;
    Priestesses of granted citizenship, 353.

  Chalkidae, an Attic gens, 28.

  Chariot, in war, 69, 74.

  Χειροτονία, 406, n. 6.

  Chicken auspices, 107, 118, n. 2.

  Cicero, on early Roman history, 26;
    account of centuriate system, 67, 205, n. 5, 215, n. 2, 221 f.;
    criticises Antony’s obnuntiation, 111, n. 4;
    attitude toward auspices, 118, n. 2;
    usage relative to comitia and concilium, 126-31;
    distinction between whole and part, 130, 466;
    on curiate law, 184 f.;
    on capital trials, 267, 268, n. 6;
    curule aedile, 327;
    on frumentations, 401, n. 5;
    supports Manilian rogation, 434;
    consul (63), 435-7;
    commends lex Iulia repetundarum, 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;
    to 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 suffragio, 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, n. 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 f.

  Classici, 72, n. 2, 76, 85, 90, 216, n. 1.

  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 centuries 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;
    appraisements, 65, 86;
    influences censorship, 331.

  Claudius Marcellus, C., consul (50), attitude 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, 317.

  Clients, ancient view as to origin of, 22;
    rights, 22 f.;
    Niebuhr on, 27;
    Meyer on, 55;
    in Claudian tribe, 56;
    in populus, tribes, and curiae, 24, 262, n. 2, 271;
    vote in comitia curiata, 25, 32, 271;
    in assemblies, 120, 276;
    Mommsen 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, 391 f.;
    connection of latter with tribes, 7;
    political character, 106, n. 6, 10, 113;
    enlarged by Sulla, 416;
    supernumeraries in, 454, n. 6;
    see Augurs, Epulones, etc.

  Collina (tribus), 50.

  Colonia Genetiva Iulia, 453, n. 4.

  Colonies, founded by senate, 284;
    triumviri for conducting, 307, 311, 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;
    attended by augurs, 112 ff.;
    meet at sunrise, 115;
    distinguished from concilium, 119-38;
    defined by Laelius, 119;
    Livy’s usage relative to, 119-25;
    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, 187, n. 7;
    in camp, 194;
    right to establish special courts, 254, 390;
    judicial procedure in, 259 f.;
    limited by senate and magistrates, 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 initiative, 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;
    presidency of, 465, 468, 469;
    length of sessions, 470;
    composition of, 473;
    summary of history, 473-7.

  Comitia calata, 152-67;
    auspicated, 104;
    wills made in, 139, n. 5, 157-9;
    also termed contio, 140, 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 horn-blower, 31;
    advance beyond curiata, 33, 473;
    ascribed to Servius, 66 ff., 201;
    described in Censoriae 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, 110;
    attended by augurs, 114;
    enact privilegia, 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, 185, 237;
    confer imperium, 188;
    elect praetor in Spain, 192;
    organization of, 201-28;
    early republican, 201-11;
    presidency of, 203, 236, 469;
    supernumeraries in, 205-9;
    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, 216;
    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;
    functions, 229-61;
    elective, 229 f.;
    legislative, 230-9;
    Twelve Tables on, 233 f.;
    freed from patrum auctoritas, 235;
    yield to tribes, 239;
    judicial, 239-61;
    appeal to, 239-42, 268;
    tribunician cases before, 245-53;
    limited by special courts, 253-7;
    try Rabirius, 258 f.;
    procedure, 259 f.;
    pass lex de Aventino, 272;
    institute Decemvirate, 273;
    divide jurisdiction with tribes, 286 f.;
    lose regulation of magistracy, 305.

  Comitia curiata, 10, 168-200;
    not identical with army, 11;
    voting in by genera hominum, 12;
    include clients and plebeians, 24 f., 32;
    convoked by lictor, 31;
    lack initiative, 33, 173;
    auspicated, 110, 112;
    pass lex de imperio, 112;
    attended by augurs, 113;
    origin, 152 f., 168-73, 473;
    limited rights of, 173 ff.;
    subject to patrum auctoritas, 174 f.;
    on war and peace, 174-7;
    legislation in, 177-82;
    jurisdiction of, 182, 339;
    elections, 182 ff., 196, 473;
    lex de imperio, 184-96;
    become formality, 196-8;
    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;
    auspication of, 104, 110;
    attended by augurs, 114;
    Livy’s use of term, 120;
    Sallust’s, 126;
    Cicero’s, 126-9;
    incompetent to pass privilegia, 128;
    of whole people, 129 f.;
    curiate sanction, 184;
    confer imperium, 188;
    under pretorian presidency, 193;
    ratify Cornelian laws, 236;
    gain at expense of centuries, 239;
    legalize 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, 271, 275-7;
    elective, 272;
    no legislation before Decemvirate, 272-4;
    conditioned legislative power 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 Octavianus, 412-61;
    preferred by Caesar, 452;
    decline of, 450 ff.

  Comitial days, 470-2;
    vitiated by spectio, 115;
    by proclamation of holidays, 116;
    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 extraordinaria.

  Commissioners, see Duumviri, Triumviri, etc.

  Compitum Fabricium, 9.

  Concilium, distinguished from comitia, 119-38;
    defined by Laelius, 119;
    Livy’s use of term, 119-25;
    Mommsen on, 121-4;
    Caesar’s usage, 125 f.;
    Sallust’s, 126;
    Cicero’s, 130 f.;
    literary and juristic, 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, 310;
    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;
    presidency of assemblies, 465, 468, 469.

  Consulta, see Senatus consulta.

  Contio, 139-51;
    interrupted by storm, 109;
    auspicated, 110 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;
    witnessing, 142;
    preliminary to comitia, 143;
    opening of, 144 f.;
    speaking in, 145 f.;
    women in, 146 f.;
    change to comitia, 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, n. 1;
    see Contio.

  Conway, on social classes, 38, n. 2.

  Coöptation, of patricians, 164, n. 1, 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;
    reactionary, 403, 414;
    consular legislation 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, 8-11;
    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, n. 4, 467.

  Cyrene, tribes of, 7, n. 1.


  Damnum, lex Aquilia on, 332 f.

  Debts, legislation on, 296, 298, 310, 312, 313, 351 f., 408, 409 f.,
        437, n. 7, 452.

  De caelo servare, 114 ff.

  Decemviri agris adsignandis, under Servilian 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;
    election of, 391;
    increased to quindecemviri, 416.

  Decianus, see Appuleius Decianus.

  Decius, censor (304), 64.

  Decius, tribune (120), 256.

  Decuriae (decades), of soldiers, 11 f.;
    (decuries) of jurors, 427, 458.

  Decurions, 12.

  Decurionate, municipal, 457.

  Demagogism, encouraged by frumentations, 373.

  Democracy, incipient, 308;
    rise of prevented, 346.

  Δῆμος, 17, 407 f.

  Δημοτικοί, 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, n. 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 constituendae, 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.

  Divination, forms of, 108 f.;
    see Auspices.

  Divisores, 431.

  Domitius Ahenobarbus, Cn., tribune (103), 323.

  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, 111, 113;
    of king, 182-4;
    and curiate law, 184-200;
    by centuries, 229 f., 331;
    of plebeian officials, 262 f.;
    by tribes, 271 f., 285 f., 331;
    ballot in, 359;
    theory of popular control, 360;
    see Ambitus, Magistrates.

  Elicius, 100, n. 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 system, 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 plebeians, 94;
    equo privato, 94 f.;
    equo publico, 95 f., 209;
    in comitia centuriata, 209 f.;
    prerogative, 211;
    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;
    associate with senators in courts, 402, 427 f., 455.

  Esquilina (tribus), 50, 220.

  Eupyridae, Attic gens, 28.

  Exercitus urbanus, 203.

  Exile, voluntary, legalized by comitia tributa, 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, n. 5.

  Fabius Pictor, sources of for early Rome, 26;
    on Servian tribes, 51, 52-4;
    centuriate system, 67, 85.

  Fabius Pictor, Q., praetor (189), trial of, 327 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), 11, 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, 351 f., 392, 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;
    Meadow, 465.

  Flaminius, C., and curiate law, 191;
    monetary 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), 11.

  Formiani, Fundani, etc., receive suffrage, 352.

  Formulae, legal, 464.

  Fornacalia, 9, 11, n. 8.

  Forum, assembly in, 267, 327, 431, 439, n. 15, 465.

  Fowler, W. W., on lex Scantinia, 357, n. 13;
    reëlection of tribune, 369, n. 4;
    Sempronian lex iudiciaria, 374, n. 7.

  Freedmen, see Libertini.

  Fregellae, revolt of, 255.

  Fröhlich, on Sulpicius, 405, n. 2;
    Cornelian-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, n. 8;
    further legislation on, 424, n. 5, 444 f.;
    curtailed by Caesar, 453;
    under lex municipalis, 456.

  Fulvius, Cn., praetor (212), trial of, 249 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.

  Furtum (theft), 339, n. 5;
    prosecution for, 321;
    under lex Hostilia, 337, n. 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, n. 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.;
    Acilian, 376 f.;
    Julian, 442, 456.

  Gracchi, see Sempronius.

  Grain, see Frumentations.

  Greenidge, on social classes, 38, n. 2.

  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, n. 5;
    Sulpicius, 405, n. 2.

  Ἑταιρεία, 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, n. 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, 103-11;
    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 becomes, 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 Pompeia, 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, n. 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 assemblies, 236;
    threatened with prosecution, 324;
    supports Licinius Macer, 426;
    Manilian rogation, 434;
    consul (59), 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 patricians, 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), 323.

  Juno, Curis, 8, n. 5, 9;
    Moneta, 2, n. 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 centuriata, 239-61, 315;
    tributa, 264-9, 280, 286-92, 317-29.

  Jurors, see Iudices.

  Juventus Thalna, M., tribal lex de bello indicendo of, 231.


  Kalumniator, 400.

  Kaput legis, 463, n. 6.

  Κήρυκες, 153, n. 3.

  King, auspices of, 103;
    presidency of contio, 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 legislation, 181, n. 9;
    transitio imperii, 183, n. 5, 197, n. 4;
    comitia centuriata, 201, n. 4;
    reform of, 224 f.;
    validity of plebiscite, 278, n. 2;
    right of dedication, 309;
    lex Appuleia de maiestate, 394, n. 5;
    lex Antia, 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, n. 2.

  Laurentum, 2, n. 6, 3, n. 1.

  Lauretum, 2, n. 6.

  Lavinium, Tities in, 4, n. 3.

  Law, divine, 177;
    human, 178;
    sovereignty of, 308;
    see Legislation, Lex.

  Legion, instituted, 68, 84;
    early republican, 75 ff.

  Leges, composition and preservation of, 462-5;
    imperfectae, etc., 463;
    centuriate, consular, etc., n. 8;
    provisions to secure validity of, 464;
    annulment by senate, 107.

  Legislation, regal, 177-82, 230;
    centuriate, 230-9;
    tribal, pre-decemviral, 269-74;
    pre-Hortensian, 292-316;
    from Hortensius to Gracchi, 330-362;
    from Gracchi to Sulla, 303-411;
    late republican, 412-61;
    freed from obnuntiatio, 117, 445;
    process of, 178 f., 465-70;
    provided for by Twelve Tables, 233 f., 307, 368, 464, 474;
    senatorial, 273;
    transferred to tribes, 316;
    to centuries, 406-8;
    ballot in, 369;
    fields of: administrative, 238, 306 f.;
    agrarian, 238, 265, n. 4, 272, 334, 363-7, 373 f., 385-7, 392, 395,
        400, 403, 435 f., 438-41, 458;
    colonial, 311, 350, 382 f., 393 ff., 457 f.;
    financial, 310 f., 335-7, 351 f., 392, 403, 422, 438;
    frumentarian, 372 f., 395, 401, 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., 340, 358 f., 391 f., 435;
    sumptuary, 337 f., 356, 388, n. 9, 423, 428, 448, 455 f.

  Legum dictio, 110, 179, n. 7.

  Lengle, on lex Cornelia Pompeia (88), 407, n. 2.

  Lentus, L., consul (156), trial of, 255, n. 1.

  Lex, meaning of word, 179;
    data and rogata, 180.

  Lex alearia, (before 204), 337.

  ⸺ auspical, 110.

  ⸺ 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 annually, 195;
    becomes formality, 196 f.;
    revived by optimates, 198;
    strengthened by Sulla, 199;
    de potestate, 190.

  ⸺ lenonia, 338, n. 5.

  Leges regiae, 181.

  Lex sacrata, so-called Icilian, 233, 272 f.;
    on tribunes, 264;
    meaning of, 264 f.;
    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, n. 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), 295, 305, 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, 295.

  ⸺ 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 (329), 304 f.

  ⸺ creating promagistracy (t. 327), 305.

  ⸺ sending prefects to Capua (318), 306.

  ⸺ on dedication of temples, etc. (304), 309.

  ⸺ dispensing Q. Fabius from law (t. 298), 308.

  ⸺ creating triumviri coloniis deducendis (296), 311.

  ⸺ prolonging imperium (t. 295), 305.

  ⸺ granting Etruria to Fabius (295), 305 f.

  ⸺ on imperium of consul Q. Fabius (292), 289, 306.

  ⸺ creating special court (270), 254.

  ⸺ doubling number of quaestors (267), 332.

  ⸺ forbidding reëlection 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.

  ⸺ 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, n. 2.

  ⸺ on qualification of plebeian tribunes and aediles (Flaminian
        era), 342 f.

  ⸺ increasing praetors to 6 (198), 346.

  ⸺ on triumphs (after 180), 350.

  ⸺ forbidding reëlection 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 (136), 360.

  ⸺ granting Asia as province (t. 131), 381, n. 5.

  ⸺ on qualifications of senators (t. about 129), 369 f.

  ⸺ permitting reëlection of tribune (t. before 123), 369, 371.

  ⸺ agraria, amending Sempronian law (t. not after 118), 385.

  ⸺ founding Narbo Martius, 386, n. 1.

  Leges, repealing Sempronian law on military service (about 115), 388
        f.

  Lex, on dedication of Capitoline temple (78), 341, n. 1.

  ⸺ on vectigalia (75), 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, n. 2.

  Leges, conferring powers on Caesar (48-45), 451 f.

  Lex, for founding Colonia Genetiva (t. 44), 453, n. 4.

  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 Carthage (t. 201), 344, n. 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, n. 9.

  ⸺ Aemilia frumentaria (c. 78), 423, n. 1, 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 f.;
    iudiciaria, 458;
    establishing appeal from quaestiones, 458 f.;
    abolishing dictatorship, 237, 459;
    a l. 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;
    colonial (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, n. 2.

  ⸺ Atilia, appointing special court (t. 210), 254, 340.

  ⸺ Atilia, on appointing tutors (242-186), 340.

  ⸺ Atilia Furia, for surrendering Mancinus (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), 350.

  ⸺ Atinia, on right of tribunes to senatorship (t. 122-102), 391.

  ⸺ Atinia Marcia, on treaty with Macedon (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 (154), 255.

  ⸺ Caecilia, abolishing vectigalia (p. 60), 438;
    repealed by Caesar, 457, n. 6.

  ⸺ Caecilia, repealing lex Clodia on censorial stigma (c. 52),
        450, n. 2.

  ⸺ Caecilia Cornelia, recalling Cicero (c. 57), 114, n. 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. 1.

  ⸺ 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, 456.

  ⸺ Cassia Terentia frumentaria (c. 73), 424, n. 5, 444, n. 6.

  ⸺ Cincia, 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, n. 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, n. 1, 127, 446;
    leges on minor subjects, 446, n. 1.

  ⸺ Cornelia, on gambling, 337, n. 6.

  ⸺ Cornelia (?), outlawing Marius and others (88), 405.

  ⸺ Cornelia, repealing Cornelian-Pompeian 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 pudicitia, alleged, 420, n. 6, 423, n. 6;
    de proscriptione, 421;
    de civitate Volaterranis adimenda, 236, 422;
    on debts, 422;
    de sponsu (?), 422, n. 13;
    instituting ludi Victoriae, 422 f.;
    sumptuaria, 423;
    leges, criminal, 419-21;
    on quaestio 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. 57), 446;
    de cura annonae, 446.

  ⸺ Cornelia Fulvia de ambitu (c. 159), 348.

  ⸺ Cornelia Gellia, on granting citizenship (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, n. 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.

  ⸺ Duillia, on appeal (t. 449), 241, 292.

  ⸺ Duillia Menenia, on interest (t. 357), 297.

  ⸺ Duronia, sumptuaria (t. before 97), 388, n. 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;
    monetary (c. 217), 336.

  ⸺ Flavia, on punishing Tusculans (t. 323), 310.

  ⸺ 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, n. 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;
    granting imperium to Pompey, 432 f.

  ⸺ Genucia (t. 342), 298 f.;
    article of on consulship, 238;
    on reëlections, often violated, 307 f.;
    dispensations from, 307 f., 343;
    renewed by Sulla, 415.

  ⸺ Glitia testamentaria, 459, n. 7.

  ⸺ Graccana, 383, n. 1.

  ⸺ Helvia, abrogating tribunicia potestas (t. 44), 455;
    on wives of Caesar, 452.

  ⸺ Hirtia, on partisans of Pompey (t. 48?), 451, n. 2.

  ⸺ Horatia, honoring Gaia Taracia, 146, n. 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 tribunician jurisdiction, 247 f., 270;
    on veto, 270.

  ⸺ Hostilia, on prosecutions for theft, 377, n. 5.

  ⸺ Icilia agraria, so called (456), 238;
    sacrata, 265, n. 1, 272 f.

  ⸺ Icilia, granting amnesty to seceders (t. 449), 292;
    granting triumph, 293.

  ⸺ Iulia, granting citizenship (c. 90), 57, n. 7, 10, 401 f.

  ⸺ Iulia, on dedication of Capitoline temple (p. 62), 341, n. 1;
    agraria (c. 59), 145, n. 3, 148, 438-41;
    relieving publicans, 441;
    repetundarum, 441 f.;
    dispensation from, 447;
    attempt to amend, 448;
    confirming acts of Pompey, 443;
    on Ptolemy, 443;
    curiata, arrogating Clodius (pont. max.), 443;
    on debts (d. 49), 452;
    de bonorum cessione (?), 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), 454, n. 4.

  ⸺ Iulia, on rents (Octavianus, 41), 459;
    on conubium of libertini (18), 354, n. 8.

  ⸺ Iulia Papiria de multarum aestimatione (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. 55), 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 potestate (c. 70), 426 f.;
    prolonging Caesar’s command (55), 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, n. 4.

  Lex Licinnia de actione communi dividundo, 339, n. 5.

  ⸺ Livia, on organization of Africa (t. 146), 349.

  ⸺ Livia, colonial (t. 122), 383 f., 397;
    on Latins, 252, 383.

  ⸺ Livia agraria, frumentaria, etc. (t. 91), 397-400.

  ⸺ Lucretia, on Campanian vectigalia (t. 172), 351, n. 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.

  ⸺ Maevia, 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, n. 5.

  ⸺ Marcia, on usurers (c. 352?), 298, n. 1.

  ⸺ Marcia, appointing special court (t. 172), 255, n. 1.

  ⸺ Marcia Atinia, on treaty with Macedon (t. 196), 349.

  ⸺ Marcia Porcia, on triumphs (t. 62), 438.

  ⸺ Maria, on pontes (t. 119), 389.

  ⸺ Memmia de incestu (t. 111), 377, n. 5, 390, n. 4.

  ⸺ Metilia, on master of horse (t. 217), 342;
    on fulling cloth, 338.

  ⸺ Minicia, on children of mixed parentage, 354, n. 2.

  ⸺ Minucia, instituting triumviri mensarii (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.

  ⸺ Ogulnia, on sacerdotes (t. 300), 102, 166, n. 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, 307, 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), 304.

  ⸺ Papiria, on dedications (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, n. 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 intercalatione (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. 326 or 313), 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 magistratuum, 449;
    excepting certain persons from law, 449.

  ⸺ Pompeia Licinia de tribunicia potestate (c. 70), 426 f.;
    prolonging Caesar’s command (55), 447, 449.

  ⸺ Poplicia, granting burial place, 342, n. 8.

  Leges Porciae de provocatione (198-184?), 250-3, 256, 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 proconsular 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. Publilia Philonis, 300.

  ⸺ Publilia (d. 339), 299-302;
    article of on patrum auctoritas, 235;
    on plebiscita, 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 calumniatoribus (91?), 400.

  ⸺ Roscia theatralis (t. 67), 357, n. 2, 428 f.

  ⸺ Roscia, granting citizenship to Transpadani (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, n. 1.

  ⸺ 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. 1.

  ⸺ 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 f., 371;
    frumentaria, 372 f., 444;
    agraria, 372, 373 f.;
    on taxation of Asia, 380 f.;
    on consular provinces, 381;
    repealed, 449;
    on military service, 382, 389;
    colonial, 382 f.;
    viaria (?), 373;
    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 Decemvirate (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. 111), 386 f.

  ⸺ Titia, on gambling, 337, n. 6.

  ⸺ Titia, on questorian provinces (267?), 332. n. 3.

  ⸺ Titia agraria (t. 99), 396;
    criminal (99?), 396, n. 5.

  ⸺ Titia, abrogating potestas of colleague (t. 43), 455, n. 3.

  ⸺ Trebonia, on tribunician elections (t. 448 or 401), 285 f., 294.

  ⸺ Trebonia, granting provinces (t. 55), 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 l. sacrata, 265, n. 1;
    granting building lot to proposer, 238, n. 3.

  ⸺ Valeria (d. 342), 234 f.;
    abolishing debts, 238, 298;
    a l. sacrata, 265, n. 1.

  ⸺ Valeria de provocatione (300), 233, 234, 242, 250;
    relation of to Porcian laws, 252 f.

  ⸺ Valeria, repealing Oppian law (t. 195), 356.

  ⸺ Valeria, granting suffragium (t. 188), 352.

  ⸺ Valeria, granting citizenship to priestesses 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), 234, 274-80, 474;
    de provocatione, 233, 241;
    a l. sacrata, 265, n. 1;
    violated by rogatio Servilia, 259;
    on oath of plebs, 264, n. 7;
    bearing on tribunician jurisdiction, 270, 280;
    on sanctity of plebeian officials, 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;
    colonial, 440, n. 8;
    granting provinces to Caesar, 443 f.;
    leges on foreign affairs, 443, n. 6.

  Leges Vibiae, confirming acts of Caesar (c. 43), 237, 457, n. 7, 458,
        n. 2;
    abolishing dictatorship, 459, n. 2.

  Lex Villia annalis (t. 180), 347;
    renewed by Sulla, 415.

  ⸺ Visellia de curatoribus Viarum (before 71), 424, n. 6.

  ⸺ Voconia, on inheritance (t. 169), 72, n. 2, 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;
    l. 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 sanction, 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.

  Lutatius Catulus, Q., prosecution of (87), 257, n. 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, 110;
    have obnuntiatio, 111 f.;
    spectio, 113;
    preside over contio, 140 f.;
    comitia, 465, 468, 469;
    bound by laws, 180 f.;
    iusti, optimo iure, 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 prosecution, 318;
    under law of extortion, 377;
    regulated by Sulla, 413-8;
    by Pompey, 449;
    swear to uphold laws, 464;
    municipal, 457.

  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), 326.

  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. 1, 262, n. 1, 272, n. 2;
    Licinian-Sextian laws, 296, n. 4;
    chronology of Sempronian laws, 371, n. 2;
    Cornelian-Pompeian law on assemblies, 406.

  Milo, tribune (57), 115 f.

  Minervia, founding of, 384, n. 1.

  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, 121-4;
    grant of patriciate, 166, n. 3;
    of citizenship, 181, n. 5;
    early legislation, n. 9;
    transitio 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, n. 2;
    Licinian and Aebutian laws, 347, n. 8;
    qualification of iudices, 375, n. 4;
    Thorian law, 385, n. 5;
    lex Appuleia 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, n. 1.

  Mucius Scaevola, Q., formula of oath in arrogations, 160.

  Mühl, 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, 255, n. 1, 257, n. 5, 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 (185), 320.

  Narbo Martius, founding of, 386, n. 1.

  Nefas, Nefasti dies, 159, 470.

  Neptunia, founding of, 382.

  Niebuhr, on early Roman history, 25 ff.;
    patrician state, 27-32;
    gens and curia, 11-13, 31 f.;
    social composition of gens, 27;
    Attic tribal system, 28, 31 f.;
    Servian tribes, 51, 61, n. 3;
    reformed comitia centuriata, 217-9;
    unsoundness 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.

  Nobles, concilium of Etruscan, 124;
    of Gallic, 125;
    comitia of, 129;
    represented in council, 275;
    right to vote, 276;
    see Patricians.

  Nola, loses citizenship, 422.

  Νόμοι ἐπ’ ἀνδρί, 153.

  Norbanus, C., trial of (95), 394, n. 4.

  Novae Curiae, 9.

  Numa, 177.

  Numantines, 350.

  Nundinae, comitia not held on, 139;
    made fasti by Hortensian law, 315, 471.

  Nuntiatio, 111.


  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, 111, 114 f., 439;
    when served, 115;
    under Aelian and Fufian laws, 116 f., 358 f.;
    under lex Clodia, 116 f., 445;
    prevents election, 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, n. 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, n. 1;
    origin of tribunate, 262, n. 1;
    connection of Ceres with plebs, 264, n. 7;
    Genucian and Publilian laws, 299, n. 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 patratus, 176.

  Patrem ciere, 20.

  Patres, meaning senators, 17 ff.;
    patricians, 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, n. 2, 271;
    in tribal assembly, 271, 275-7;
    in 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 curiata, 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, n. 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;
      Claudius, 248, 317;
      Manlius, 288 f.;
      Postumius, 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, n. 6, 28, 69.

  Phyle, 4, 6, 28.

  Phylobasileis, 8, n. 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, 110;
    preside over contio, 140 f.;
    comitia, 465, 469;
    see Aediles, Tribuni plebis.

  Plebi scitum, issued by plebeian assembly, 120, n. 1;
    originally binding on plebs only, 263, 273;
    given conditioned validity, 274-9;
    Publilian law on, 300;
    made unconditionally valid, 313, 463;
    for individual plebi scita, see Lex.

  Plebs, distinguished from populus, 1, n. 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;
    assembly of termed comitia, 120;
    first secession of, 262;
    in contio, 263;
    community of, 264 f.;
    misunderstanding with government, 268;
    meaning of word in Valerian-Horatian law, 275-7;
    Publilian law on, 301 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.

  Πλῆθος, 407 f.

  Plutocracy, era of, 346-62, 476;
    discontent with, 371.

  Poetelius Libo, C., consul (326), dictator (313), 310.

  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 centuriata, 203, 469;
    to comitia tributa, 465.

  Pompeius Magnus, Cn., use of oblativa, 111;
    and curiate law, 194 f.;
    consul (70), 426 f.;
    given special commands, 432-4;
    cura annonae, 446;
    second consulship (55), 447-50;
    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;
    presides over contio, 141;
    comitia calata, 153 ff.;
    comitia tributa, 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, n. 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;
    increased
    to fifteen, 416.

  Popillius, M., trial of (172), 255, n. 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), 257, 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 reëlections, 348;
    author of law of appeal, 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., trial of, 289.

  Postumius, M., trial 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, 341, 416, 454;
    urban, presides over election of boards, 337;
    lex Plaetoria on, 342, n. 1;
    fills album iudicum, 376, 377;
    minimal age of, 415;
    edicts of, 431 f.

  Prefecture of market, created (440), 295, 305, n. 5.

  Prerogative (praerogativa), 211, 463;
    equestrian 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, 112;
    elections, 389;
    comitia tributa, 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.;
    dispensations 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.

  Proletarians, 68, 89, 207 f.;
    after reform, 226.

  Promagistracy, instituted, 305.

  Promagistrates, lack right to summon people, 141;
    and curiate law, 192 ff.;
    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, 432-4,
        443 f., 447;
    Sempronian law on consular, 381 f.;
    Cornelian, 417;
    Julian, 456;
    protected by Gabinian, 429 f.;
    from extortion, see Repetundae.

  Publicans, exactions of, 380 f.;
    law for relief of, 441.

  Publicius Bibulus, C., tribune (209), 338.

  Publilius Philo, consul and dictator (339), 235, 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, n. 5;
    for trial of Pleminius (204), 250;
    affects centuriate jurisdiction, 253;
    appointed by senate and people, 253, 295, 309;
    by senate alone, 253 f., 255, 309;
    by people, 255, n. 1;
    for trial of conspiracy, 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 jurisdiction, 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.;
    parricidii, 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), 426.

  Quinctius, T., past consular tribune, trial of, 288.

  Quinctius Trogus, 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, 2, 3, n. 1.


  Rabirius, C., trial of, 243 f., 258 f.

  Ramnenii, in Ostia, 4, n. 3.

  Ramnenses, 74.

  Ramnes, 2, n. 5, 74;
    in Ardea, 4, n. 3.

  Ramnii, in Capua, 4, n. 3.

  Rapta (curia), 8, n. 6, 11, n. 7.

  Ratings, ascribed to Servius, 66;
    in sextantarian 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, n. 1, 4, 6, 53 f.

  Religion, influences formation of nobility, 39 f.;
    right to legislate on, 308;
    laws on, see Legislation.

  Remus, an augur, 105, n. 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 address 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, n. 2.

  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, n. 1.

  Rogationes Caeliae, on debts and rents (p. 48), 452, n. 9.

  Rogatio Caninia, granting imperium to Pompey (t. 56), 446, n. 3.

  ⸺ Cassia agraria (c. 486), 238, 265, n. 4.

  ⸺ Clodia de suffragiis libertinorum (p. 52), 450, n. 2.

  ⸺ 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. 60), 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, n. 2.

  ⸺ Maelia, confiscating property of Ahala (436), 289.

  ⸺ Marcia (123-122), referring to military tribunes, 382, n. 5.

  ⸺ Marcia agraria (t. 104), 392.

  ⸺ Messia, recalling Cicero (t. 58), 446, n. 2.

  ⸺ Ninnia, recalling Cicero (t. 58), 446, n. 2.

  ⸺ Papiria, permitting reëlection of tribunes (t. 131), 369.

  ⸺ Pinaria annalis (p. 182?), 347, n. 3.

  ⸺ Pompeia repetundarum (c. 55), 442, n. 2;
    sumptuaria, 448.

  ⸺ Porcia, abrogating imperium (t. 56), 446, n. 3.

  ⸺ Porcia Pompeia, recalling Metellus (t. 99), 396, n. 1.

  ⸺ Pupia Valeria, appointing special court (c. 61), 438, n. 3.

  ⸺ Rutilia, on censorial contracts (t. 169), 351, n. 5.

  ⸺ Scribonia, on Lusitanians (t. 149), 349.

  Rogationes Scriboniae, on various subjects (t. 50), 450, n. 2.

  Rogatio Semproniade provocatione (t. 133), 255, 368;
    iudiciaria, 368, 374;
    on military 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.;
    violates right of appeal, 259;
    bearing of on election of sacerdotes, 416, n. 6.

  Rogations, discussed in senate, 145;
    judicial, 259;
    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, n. 2.

  Romanus 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 Tities, 2 f.

  Sacer homo, 265.

  Sacerdotes, 7;
    inauguration of, 106;
    comitia, 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;
    religious 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, n. 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.

  Scaevola, on gens, 28, n. 7.

  Scantinus Capitolinus, C., prosecution of, 325.

  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 Janiculum, 313.

  Sectatores, 436.

  Seditions, tribunician, 279, 313;
    Varian law on, 401.

  Sempronius Gracchus, C., legislation of, 255 f., 371-85;
    defeat for third tribunate, 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 second 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 f., 405, 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, 309 f., 368, 371, 388;
    passes consultum ultimum, 255 f., 273, 387 f.;
    grants citizenship, 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;
    deposes consul, 409;
    regains control of assemblies, 406-8, 413 f.;
    admission to through quaestorship, 415, 418 f.;
    gains through Sulla, 418;
    law on sessions of, 424 f.;
    grants dispensations, 430 f.;
    limited by Caesar, 457;
    considers 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 indirectly 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;
    appointing special court, 253;
    essential to legality of plebiscite, 277 f.;
    for settling Latium, 304;
    Hortensian law on, 313;
    for founding colonies, 351;
    on usurpation of citizenship, 354;
    on importation of wild beasts, 346;
    on finance, 422;
    on trial of provincials, 424, n. 6;
    amending lex Acilia Calpurnia, 436;
    de collegiis, 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, C., trial of, 246;
    rogation on property of, 289 f.

  Servilius Caepio, Q., imperium of abrogated, 390.

  Servilius Glaucia, C., 393.

  Servilius Rullus, P., tribune (64-63), 435.

  Servius Tullius, distributes land, 49;
    institutes new tribes, 50 ff., 217;
    centuriate 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.

  Sicinius, 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 f.;
    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, 2, n. 6 f., 8.

  Sodalicii, lex on, 447 f.

  Soldiers, and appeal, 251-3;
    laws on service of, 382, 388 f., 392.

  Solon, law of, on citizenship, 44, n. 1;
    connection with classes, 71.

  Soltau, on comitia centuriata, 201;
    composition of tribunician assembly, 275, n. 5;
    Licinian-Sextian law, 296, n. 4;
    validity of plebiscite, 300, n. 6.

  Sovereignty, belongs first to king and council, 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, 110;
    belongs to magistrates only, 113;
    when forbidden, 114;
    under Aelian and Fufian laws, 116.

  Statutes, see Leges.

  Stipendium, 63.

  Storm, interrupts comitia, 248.

  Stultorum feriae, 9, n. 6.

  Stuprum, prosecutions for, 247, 291 f., 326, 327, n. 2.

  Submovere, 150, n. 9.

  Suburana (tribus), 50.

  Sucusana (tribus), 220.

  Suffragia 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.

  Συσσίτια, 8, n. 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 centuriate 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), 324.

  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.

  Θέμιστες, 177.

  Thunder, effect of, on comitia, 109, 111.

  Thurii, tribes of, 7, n. 1.

  Titia (curia), 8, n. 6, 11, n. 7.

  Titienses, Tities, 2, 74.

  Titus Tatius, 2 f., 4, n. 3, 56, n. 3.

  Tolosa, gold found at, 390.

  Transitio ad plebem, 162 f., 403, 438, 443.

  Transpadani, receive citizenship, 402, 454.

  Trasimene, political effect of disaster at, 343.

  Treaty, alleged between plebs and government, 265.

  Treaty-making, originally with magistrates and senate, 174 f., 273,
        283;
    with king, 181;
    ratification of acquired by tribes, 175, 283, 302 f., 344, 349.

  Trebellius, L., tribune (67), 432.

  Trebonius, L. and Cn., 285.

  Tremellius, Cn., praetor (160), prosecution of, 322.

  Tresviri (Triumviri) nocturni, trial of, 318.

  Tresviri epulones, 347, 391, 416, n. 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;
    Valerian law on, 235;
    hold court-martial, 251;
    elected by people, 234, 306, 342, 349, n. 1;
    rarely appointed, 342, n. 2.

  Tribuni militum consulari potestate, 229, 234.

  Tribuni plebis, auspicium of, 104;
    obnuntiate, 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, 273, 279;
    pre-decemviral jurisdiction, 267-9;
    number increased, 272;
    controlled 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.;
    reëlection 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, 350, 417, 422, 438, 451.

  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, 350 f.

  Triumviri mensarii, 336 f.

  Triumviri rei publicae constituendae, 459.

  Triumviri, for repairing temples, 337;
    for dedicating, 340.

  Trumpeters (tubicines, liticines), in centuriate system, 66, 206;
    summon accused, 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 legislation, 233 f., 307, 368, 464, 474;
    composition of, 239;
    guarantee right of appeal, 240;
    on privilegia, 241, 245, 268;
    forbid conubium, 294;
    criminal laws of, 357;
    grant jurisdiction 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, abolished, 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 iudiciaria, 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;
    established 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., 430, 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;
    originally 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. 1.

  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, n. 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, n. 1;
    luxury of restrained, 338, 356;
    right of inheritance restricted, 352.


  Zaleucus, 177.





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