George Willis Botsford

“ 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.” ”

“ 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. ”

“ 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 ”

“ As the author points out in his preface, there is no book in the English language which supplies a picture of life and manners, of education, morals, and religion, in the intensely interesting period of the Roman Republic. The age of Cicero is one of the most important periods of Roman history, and the Ciceronian correspondence, of more than nine hundred contemporary letters, is the richest treasure-house of social life that has survived from any period of classical antiquity. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ For when the people are organized [128] 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ Cicero could hardly mean that we are by nature adapted to assemblies of a part of [131] 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. ”

“ Another passage from Livy usually interpreted in support of the theory [102] 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.” ”

“ 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. ”

“ 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 ”