Part 2 — 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.