(d) The Xviri stlitibus judicandis have a strange history; for, from being simple judices, they become minor magistrates of the people. They are doubtless the decemvirs who were rendered sacrosanct by the Valerio-Horatian laws of 449 B.C.,[1149] the reason for this protection being that they were the jurors who decided in cases of freedom, that ultimate plebeian right which, as the story of Verginia shows, might sometimes be assailed. By Cicero’s time they are still judges in liberales causae, but they have risen to the rank of independent magistrates.[1150]
(e) The IIIIviri praefecti Capuam Cumas[1151] were the elected delegates who represented the jurisdiction of the praetor in the municipia and colonies of the Campanian district. Their functions may be more appropriately discussed when we are dealing with the organisation of Italy.
Certain judicial and military posts were also filled by popular election. The paucity of criminal judges at Rome after the institution of the quaestiones perpetuae[1152] led to the appointment of an annual president of the chief court which tried ordinary crimes—that, namely, which dealt with murder and kindred offences (quaestio de sicariis). The magisterial position of these judices quaestionis is shown both by the fixed qualification—it is generally, perhaps always, an ex-aedile that is appointed[1153]—and by the fact that, like the magistrate who takes the oath in leges,[1154] these judices swear to observe the special law which they are administering.[1155] They were probably elected by the people in the comitia tributa.[1156]
Subordinate military posts were also in the people’s gift, and we have already noticed how the tribunate of the legions became in part a quasi-magistracy.[1157] In the year 311 B.C. the appointment of consular delegates for the command and maintenance of the fleet was also entrusted to the tribes.[1158] These IIviri navales were not annual officials, but, in obedience to the occasional character of the Roman fleet, came into existence when a war required its creation. The office seems to have become extinct by the second century B.C.
More occasional still was the creation by the comitia tributa, in later times occasionally by the concilium plebis,[1159] of minor magistrates with extraordinary functions. Such were the officials for conducting a colony (coloniae deducendae) for the assignment of land (agris dandis assignandis), or for the dedication of a temple (aedi dedicandae). To this category belong the occasional curatores for the corn-supply and the roads (annonae, viarum).
CHAPTER V
THE PEOPLE AND ITS POWERS
We have already noticed the duality of procedure by which the powers of the people were exercised, and seen that every popular act was dependent on a rogatio.[1160] But different spheres of popular activity may conveniently be distinguished. They may be divided into (i.) legislative or quasi-legislative acts; (ii.) elective; (iii.) judicial.
(i.) With respect to legislation proper, the Roman, like every other government which recognises the theory of parliamentary sovereignty and has no provision for a constituent assembly, drew no distinction between constitutional and other laws. But in our enumeration we may conveniently distinguish between those ordinances which altered the structure of the constitution and affected public rights, and those which dealt merely with the private relations of the citizens to one another.