In constitutional legislation the power of the people was unlimited. They could create new parliaments, as they did the comitia tributa populi;[1161] they could delegate full powers of legislation to parliaments already existing, as they did to the concilium plebis.[1162] They could devolve powers almost amounting to sovereign rights on an individual, as they devolved them ultimately on the Princeps. They might suspend the constitution and set up a provisional government, as they did when they gave constitutive powers to the decemvirs or to Sulla.
They might also observe or create rules which limited their own power of utterance. A result of observance of a rule is a formula which appears in Roman laws declaring their operation invalid in so far as they conflict with any fundamental obligation—the fas or jus which lies at the background of the state and which the people themselves dare not infringe. The scruple was expressed in the saving clause—
Si quid jus non esset rogarier, ejus ea lege nihilum rogatum.[1163]
Primarily this clause guarded a law against being a breach of a religious obligation;[1164] but, as interpreted by Cicero, it was a profession of respect even for certain ultimate secular rights—the rights for instance, to the possession of citizenship.
The creation of limitations may be instanced by the provision of the Twelve Tables, which forbade enactments to the detriment of individuals (privilegia),[1165] and by a principle—perhaps rather a rule of procedure analogous to the formalities of legislation—which forbade laws on different subjects to be passed en bloc (per saturam), a provision re-enacted by a lex Caecilia Didia of 98 B.C.[1166]
The creation of new magistracies was also within the power of the people, and, originally, the extension of an office beyond its proper term. In the year 327 B.C., at the commencement of the second Samnite war, the consul Q. Publilius Philo had his imperium prolonged by a plebiscitum;[1167] although, as early as 308 B.C., in the prorogation of the command of the consul Q. Fabius Maximus, the Senate alone is mentioned as giving its sanction.[1168]
The establishment of special judicial commissions to decide without appeal, in cases where the ordinary authorities were felt to be unable to cope with crime or conspiracy, was, in the strict theory of the constitution, entirely in the people’s hands. Commissions of this kind are found in 187,[1169] 172,[1170] and 141[1171] B.C. In all these cases there was co-operation between the Senate and people, and it is not until the revolutionary period that the people ventures on its own authority to establish a commission for criminal investigation.[1172]
The public rights of the individual were also under the control of the comitia, and the conferment of citizenship was solely the people’s gift. As originally the patrician comitia could alone coopt patricians,[1173] so in later times the assembly of the whole Populus could alone admit new partners to its rights. Civic rights could be conferred on individuals or communities, in whole or in part, and the Plebs was for this purpose equally competent with the Populus.[1174] A mediate grant of the citizenship could be made by the conferment of the power by the people on a magistrate entrusted with the founding of a settlement, as when the lex Appuleia of 100 B.C. granted the right to Marius to raise three persons to the citizenship in any colony which he planted.[1175] Citizenship might also be conferred by an imperator for good service in the field; but the power had to be given, or perhaps in some cases the grant retrospectively sanctioned, by the people. Such a power was given by law to Pompeius after the war with Sertorius;[1176] but Pompeius may provisionally have conferred the citizenship during the campaign. Marius granted the boon on the field of battle;[1177] he may have already had the power given him by the people,[1178] or he may have calculated on the subsequent ratification of his act.
Deprivation of the citizenship of a community, the legality of which by any power was questioned in the later Republic,[1179] could be effected, if at all, only by the people, and the people might in this particular be represented by the Plebs. It was this body which pronounced on the fate of Capua in 210 B.C., and their decision entailed a criminal condemnation, the penalty of being sold into slavery. The people, however, did not itself pronounce deprivation of citizenship, but left the fate of the Capuan burghers to the Senate.[1180]
The people might also give the right of voting to those who already possessed citizenship without it. This was so entirely a popular gift that even the previous deliberation of the Senate was not considered necessary for such a conferment. When a tribune proposed to grant the right of suffrage to the municipia of Formiae, Fundi, and Arpinum in 188 B.C., he was met by the veto of four of his colleagues, who insisted that the Senate’s judgment should first be taken. But, yielding to instruction on the true principle of such gifts, they eventually withdrew their opposition.[1181]