The deprivation of voting power—tribu movere in the extreme sense—seems to have been retained by the censor,[1182] although a protest against its use to disfranchise a whole class was raised in 169 B.C.[1183]. The people alone could impose a new burden on itself, and taxation belonged wholly to the comitia.[1184]
Passing to legislation on private matters, we find that any fundamental change in the legal relations of citizens to one another must be effected by the people. The law of the Twelve Tables is itself a lex centuriata, and we need only think of laws, such as those on usury, or the lex Voconia on inheritance, as types of a multitude of others. In the matter of civil procedure also a fundamental change, such as that permitting the use of the formula in place of the legis actio in cases falling under the jus civile, required legislation.[1185] Yet we feel that it is only a question of degree whether such changes are effected by the people or by the authority of individuals. In matters of substantive law immense changes were brought about by the interpreting authority of the praetor;[1186] while in procedure also much was left to the discretion of pontiffs, magistrates, and jurists. The same principle of division of authority applies to police regulations. Wide as were the coercive powers of the magistrates, sweeping infringements on individual liberty, such as those created by the sumptuary laws, were the work of the people.
We may pause here to examine the form of a lex, and especially that portion of it which secured its validity—its sanction. A complete law contained three parts: (1) its preamble (praescriptio), which described the formal circumstances of its enactment;[1187] (2) the text, in which a minute and exhaustive formalism was rigorously preserved; (3) the sanction, which contained the pains and penalties pronounced against those who violated the provisions of the enactment. A poena, however, was not of itself sufficient to constitute a perfect law. A lex perfecta was one which declared an act invalid and imposed a penalty for disobedience. The imposition of a penalty without the declaration of invalidity constituted a lex minus quam perfecta.[1188] A law without a sanction was imperfecta.[1189] The method of repeal most frequently practised at Rome was rather that of supersession than of the declaration of the nullity of the former enactment. Hence the sanction of laws often gives impunity to those who by obedience incur the pains and penalties pronounced by some previous measure.[1190] Repeal might be either complete or partial, and a series of technical terms was evolved to express this difference.[1191]
The attempt of certain laws to secure finality by prohibiting repeal was necessarily futile, as opposed to the whole theory of parliamentary sovereignty.[1192] It is possible, however, that the leges sacratae of the early Republic, such as that which made the tribune sacrosanct, were regarded as unalterable. The execratio, which was their sanction, may have been regarded as a fundamental religious obligation, and have been held, as such, to be one of those sacred rights which, as we have seen,[1193] no law professed to infringe.
The sovereign privilege of exempting individuals from laws was naturally possessed at first by the legislative body itself; but by a curious revolution, which we shall trace elsewhere,[1194] this singular privilege became a prerogative of the Senate.
The people’s control of external matters, although it is still, from a juristic point of view, legislative, bears a closer resemblance to the administrative functions of a Greek or modern government. Here the magistrate was empowered to act in all matters of detail, and we shall see how this magisterial sphere was usurped by the Senate. The people had only the control of the fundamental relations of Rome with foreign states. Their activity was confined to the declaration of war, the making of treaties, and the giving of charters.
A declaration of war was, according to Roman notions, strictly necessary only when treaty relations, or even at times relations which approximated to those of a treaty,[1195] had been broken. Such a declaration could be made only by the people.[1196] But the international point of view was not the only dominant one in this matter. The people must have been consulted in many cases where there were no treaty relations, and the reason would have been simply the advisability of its declaring its will on a matter which might be of vital importance to the community. The comitia centuriata seems invariably to have represented the people in this capacity.[1197] With respect to the conclusion of international relations, we shall touch elsewhere on the controverted question[1198] whether the magistracy had the right of binding the popular conscience by a sworn treaty, or whether this required the consent of the people. The survival of the controversy into as late a period as that of the Jugurthine war seems to prove that the federative power was once a magisterial privilege; and the fact is also attested by the inclusion in agreements made by commanders of a clause specifying that the agreement should only be valid if ratified by the people.[1199] In the middle Republic there was no question that treaty relations were the prerogative of the people,[1200] and, unlike the case of the declaration of war, the Plebs is here included in the conception of the people.[1201] By the nature of the case it could only be the outlines of an agreement that were thus laid before the comitia, and details of settlement were left to the commander, assisted by a commission.[1202] The organisation of a province and the lex provinciae that followed the subjection of a district were not usually interpreted in the light of treaty relations; they were the work of a commander and a senatorial commission. On the other hand, cities with treaties (civitates foederatae) and cities with charters (civitates liberae) have their rights given them by the people. In the one case the rights are guaranteed by an irrevocable agreement sworn to by the fetiales; in the other by a revocable charter (lex data), which as late as 71 B.C. is still an utterance of the people (lex rogata).[1203] We shall see, in dealing with the Senate, that, even in this matter of granting treaties or charters to separate states, senatorial authority encroached on that of the people.
(ii.) We have already seen how in theory the popular power of election was a modification of a principle of nomination;[1204] after its recognition the principles regulating it were practically those of legislation, the magistrate questioning and the people commanding. The representation of the dual community is here rather more marked than in the case of legislation; for while a plebiscitum is often spoken of as a lex, no one credits the tribune with the position of a magistratus populi, and however wide his powers may have become, he always remains in theory the head of the plebeian community. The preliminaries to election necessary to the candidate for office have already been considered,[1205] and the further process of election will be dealt with when we describe the procedure of the comitia as a whole.
(iii.) The origin of the jurisdiction of the people is, as we have seen, obscure; but it is probable that it did not spring wholly from the provocatio,[1206] and even in cases where it did, the appeal tended to become extinct, from the fact that a magistrate who recognised the restrictions imposed on his imperium by law would not pronounce a sentence, but would bring the case immediately before the people. A trial before the people (judicium populi) took place when a magistrate recognised the limitations on his power; the provocatio—an extremely rare occurrence in the later Republic—was required to start the same procedure when the magistrate refused to recognise these limitations.
The judicial competence of the different magistrates and comitia was determined partly by law, partly by custom. Two fundamental principles were recognised:—