§ 10.: Future Progress of Law. Legislation and Interpretation; the Legislative Assemblies.

For the future the progress of law was to depend on the two processes of legislation and interpretation. The legislative assemblies were those of the Populus and the Plebs. The Populus, which comprised the whole of the Roman people, Patricians as well as Plebeians, met, either by centuries, as the Comitia Centuriata, or by tribes, as the Comitia Tributa, under the presidency of a Consul or Praetor.

The Comitia Centuriata was an assembly that had grown out of the army-organization of the whole Roman people. It was the whole Host or Exercitus expressing its political will. It was for this reason that the military unit (the centuria) was the voting unit. And this was also the original reason why we find in this assembly the division into classes, or aggregates of citizens grouped together on the basis of a particular property qualification; for the different types of military service were originally determined by degrees of wealth. But the element of wealth in this assembly, which is exhibited by the division into classes, soon gained a political significance. The voting power of the classes differed considerably. That of the wealthy was greater than that of the middle-class, and that of the middle-class far in excess of that of the poor. Thus the Comitia Centuriata was always assumed to have something of an aristocratic character; and the change which its constitution underwent during the Republic was at least partly directed by an effort to modify this character. The scheme recognized five classes, the census of each being (in terms of the later assessment of the historical period) respectively 100,000, 75,000, 50,000, 25,000, and 11,000 (or 12,500) asses. The first class contained eighty centuries, the second, third, and fourth, twenty each; the fifth, thirty. Thus the centuries of the first-class were almost equal to those of the four other classes put together. The weight of aristocratic influence may be still more fully realized if we remember that the corps of Roman Knights (centuriae equitum equo publico) formed eighteen centuries in this assembly, and that the mass of citizens whose property fell below the minimum census were grouped in a single century. The collective vote of the first class and the knights was represented by ninety-eight centuries; the collective vote of the whole of the rest of the community (including four or five centuries of certain professional corporations connected with the army, such as the Fabri) was Edition: current; Page: [xxvi] represented by ninety-five or ninety-six centuries. Thus the upper classes in the community possessed more than half the votes in this assembly.

A modification in the structure of the Comitia Centuriata was subsequently effected, which had the result of giving a more equal distribution of votes. No precise date can be assigned for the change; but it has been thought not to be earlier than 241 b. c., the year in which the number of the tribes was raised to thirty-five. The principle of the new arrangement was that the tribe was made the basis of the voting power of the classes. There is considerable divergence of opinion as to the method in which the centuries were distributed over the tribes; but, according to the more usually accepted view which has been held by scholars from the seventeenth century onwards, the five classes were distributed over all the tribes in such a manner that there were two centuries of each class—one century of seniores and one of juniores—in a single tribe. Each class would thus have two votes in each tribe and seventy votes in all. The total number of centuries belonging to the five classes would be 350, of which the first class would possess but seventy Edition: current; Page: [xxvii] votes; or, if we add the other centuries of knights (18), of corporate bodies such as the Fabri (4), and of Proletarii (1), we find that the first class and the knights commanded but eighty-eight votes out of a total of 373. This system, which lessened the influence of the wealthier classes, was temporarily abolished by Sulla in 88 b. c.; but it was soon restored, and there is every reason to suppose that it survived the Republic and formed the basis of the arrangement of the Comitia Centuriata under the Principate. Although the Comitia was organized on this tribal basis for the distribution of voting power, the voting unit was still the century and not the tribe. The seventy centuries of each class voted in turn; the decision of each century was determined by the majority of the votes of its individual members; and the majority of the centuries determined the decision of the assembly.

The Comitia Centuriata, although of the utmost importance in the structure of the Roman Constitution as the body that elected the magistrates with Imperium and the censors, that exercised capital jurisdiction and declared war, ceased to be employed in the period of the developed Republic as an ordinary legislative assembly. It was difficult to summon and unwieldy in its structure, and its position as a legislative body came to be usurped by the two assemblies of the tribes. Yet, as we shall see, it may have been held that legislative acts, which affected the fundamental principles of the Constitution, should be submitted to the centuries.

The Comitia Tributa Populi had probably been instituted in imitation of the Plebeian Assembly of the Tribes. It was found convenient that the Populus should meet in this way as well as the Plebs; and the Tribus—the voting unit which had already been employed for assemblies of the Plebs—was used for assemblies of the whole people. The Tribus was always a division of the territory of the Roman State in Italy, and the tribes grew in number as this territory increased until by the year 241 b. c. they had reached their final total of thirty-five. It is generally believed that originally only holders of land were registered as members of a tribe; but there is Edition: current; Page: [xxviii] no sufficient evidence for this view, and it seems safer to conclude that, while every holder of land was registered in the tribe in which his allotment lay, every landless man was registered in the tribe in which he had his domicile. At a later period registration became more arbitrary, and had little or nothing to do with the residence of the person registered. The censor enrolled individuals in tribes at his pleasure; usually he entered a man in the tribe to which his father had belonged; but he might, if he willed, transfer him from one tribe to another (tribu movere).

In an assembly organized by tribes (tributim) the vote of the majority of the members of a particular tribe determined the decision of that tribe, and the vote of a majority of the tribes the decision of the assembly. The Comitia Tributa Populi must have been instituted later than 471 b. c., which is the traditional date at which the Plebs began to meet by tribes; and it may have been in existence some twenty years later, at the date of the formation of the Twelve Tables. The first evidence for it as a legislative assembly belongs to the year 357 b. c.. In the later Republican period it was probably quite the most active of the legislative assemblies of the whole people.

The Comitia Curiata, the oldest of all the Roman assemblies, whose structure was based on the ancient Curiae or Parishes of Rome, ceased in the historical period to be a true legislative assembly. It met only for the performance of certain formal acts, such as the lex curiata which ratified the Imperium of the higher and the Potestas of the lower magistrates. For this purpose the thirty Curiae were in Cicero’s day often represented by but thirty lictors. The assembly may have been as scantily attended when it performed the formal acts vested in it when it met as the Comitia Calata. In this Edition: current; Page: [xxix] capacity it was gathered under the presidency of the Pontifex Maximus for the inauguration of the Rex Sacrorum and the Flamines, and for the Detestatio Sacrorum—the renunciation of preexisting religious obligations which was made by a man who passed from his Gens, either by an act of Adrogatio or by transition from the patrician to the plebeian order.

The assembly of the Plebs excluded the patrician members of the community, and continued to be organized by tribes Its true designation was Concilium Plebis, Concilium differing from Comitia as a gathering of a part of the people differs from a gathering of the whole. This assembly is often spoken of by ancient writers as the Comitia Tributa; but it differed from the Comitia Tributa Populi in two respects. It did not include Patricians, and it was presided over, not by a magistrate of the People, but by a magistrate of the Plebs. When it met for legislative purposes, it was presided over only by the Tribune of the Plebs. The legislative authority of the Concilium Plebis had developed steadily during the first two centuries of the Republic. At first this assembly could only pass ordinances binding on the members of the Plebs themselves. Then, by the Valerio-Horatian and Publilian laws (449 and 339 b. c.) it gained the right of considering and initiating proposals which affected the interests of the whole community; this right being probably acquired and exercised by the creation of increasing facilities for bringing resolutions of the Plebs as petitions to the assemblies of the people, to be confirmed or rejected by the latter. Since the Plebs came gradually to constitute the majority of voters in the assemblies of the people, these petitions must as time went on have been almost invariably confirmed. The distinction between Plebiscita and Leges must have been growing more and more formal and unreal when the Lex Hortensia (287 b. c.) enacted that henceforth Plebiscita should have the force of Leges. From this time onwards there was no difference between the Populus and the Plebs in matters of legislation, except that it may have been held by some thinkers that fundamental changes in the Constitution, such as those introduced by Sulla, ought Edition: current; Page: [xxx] to be ratified by the Comitia Centuriata. But in nearly all the spheres subject to the commands of the people, the Populus and the Plebs were equally competent; a Lex could repeal a Plebiscitum and a Plebiscitum a Lex. This dual sovereignty, which is one of the most curious of the theoretical features of the Roman Constitution, was rendered possible and harmless by the fact that the mass of the voters in all the different assemblies were composed of the same individuals, and by the central control exercised by the Senate over all magistrates, and therefore over all assemblies before which these magistrates introduced their proposals. The initiation of legislation was, in fact, during the days of Republican stability, in the hands of the Senate; but, apart from the exercise of this authority, which had long had a de facto recognition, but was not recognized by law until the time of Sulla (88 and 81 b. c.), the Senate did not pretend to exercise legislative power during the Republic. In its own right it could only exercise certain powers approximating to those of legislation. We find it, for instance, fixing the rate of interest; but such an ordinance technically assumed the form merely of advice to the judicial magistrates as to the rates which they should recognize in their edicts. The Senate, however, exercised the power of dispensing individuals from the existing laws; and we find it also warning the community that some enactment which had passed the people was, on technical grounds, invalid, and was therefore not binding either on the magistrates or on any member of the State.

In few societies of the ancient world was the legislative power so unfettered as it was at Rome. The Romans drew no distinction between constitutional law and other laws; the Roman assemblies could create new assemblies, could alter their own structure, could modify or even suspend the Constitution by granting enormous powers to individuals. There was no sphere of human interest outside their control; their power of utterance was limited only by a respect for religious law. We might, therefore, have expected that legislation would have been the chief path on which Roman law advanced to its maturity. But this expectation is disappointed, so far as the progress of the Jus Privatum is concerned. We do indeed find a certain number of statutes which deal with important matters of private law, such as the Lex Aquilia de Damno, the Lex Edition: current; Page: [xxxi] Furia on testaments, the Lex Voconia on inheritances; and it is also true that certain important changes in civil procedure were sanctioned by the people, the most far-reaching of these changes being perhaps that effected by the Lex Aebutia, which helped to replace the Legis Actio by the Formula. But the legislation referring to private law and civil procedure at Rome is in no way comparable in bulk to that which dealt with criminal and constitutional law. Even those Leges or Plebiscita that dealt with civil procedure, perhaps did little more than ratify a change that had been already accomplished in the courts, or carry this change a few steps further. And, as to the alterations in the material elements of private law, these alterations were determined to a far greater extent by interpretation than by legislation.