Roman Public Life

by A. H. J. Greenidge

A further step in the exercise of this power was taken when attempts were made to rescind the decisions of the judices of criminal commissions by decrees of the people. This was first attempted in 88 B.C. by the tribune P. Sulpicius Rufus, who carried a plebiscitum for the restoration of exiles who had been condemned by the Varian commission.[1223] Other tentative steps in the same direction led up to Caesar’s bill of 49, by which he effected the restoration of those who had been condemned under the Pompeian laws of 52 B.C.[1224] The instances of this period generally illustrate the rescission of the decrees of special commissions, which were themselves political weapons evoked by party conflict, but M. Antonius when tribune is said to have effected the restoration of a man who had been condemned for an ordinary crime,[1225] and, therefore, presumably by an ordinary quaestio perpetua, and it seems clear that by Cicero’s time this power of restitution by the comitia had come to be regarded as practically one of pardon. Each of the three legislative assemblies was competent to “restore” (restituere). The proposals are usually tribunician, but Caesar also employed praetorian rogations (probably before the comitia tributa) for the purpose.[1226]

Two powers analogous to that of the rescission of a sentence are the remission of outlawry and amnesty.

The outlawry referred to is not that following on aquae et ignis interdictio, which was an act of the people and the confirmation of a criminal sentence, but that consequent on a decree of the Senate, which had pronounced individuals to be hostes. Although we might have expected that the Senate, which passed, would be the body to rescind such a decree, we find the belief that the restitution of the outlawed required a lex or plebiscitum. Marius pretended that such a permit was necessary for his entrance into Rome in 87 B.C.,[1227] and Octavian in 43 B.C. had a law passed which rescinded the outlawry of Dolabella.[1228]

Amnesty is an act which implies that no trial and no condemnation, whether pronounced by a court or other body, have taken place; it gives immunity from the consequence of criminal acts that have not yet been judged. This, however, is a prerogative, not of the people, but of the Senate. It was a decree of this body that gave an immunity (not subsequently respected) to Caesar’s murderers in 44 B.C.,[1229] and a similar act in 33 B.C. granted an amnesty to senators who had during the civil war raised troops at their own cost.[1230]

The occasional grounds of invalidity of these legislative or quasi-legislative acts of the people have already been incidentally considered. We have spoken of the conditions of the auspices and the intercession,[1231] neglect of either of which made a law ipso jure invalid, and the same consequence followed a breach of the formal rules which the people had made for its own guidance, such as the rules of promulgation which we shall soon discuss, or the provision against the union of heterogeneous measures in the same bill.[1232] In the earlier period of Republican history such invalid ordinances were, when they took the form of election, subjected to a procedure resembling repeal, and there are many instances of magistrates vitio creati forced to abdicate their office, a renewal of the elective procedure following on their abdication;[1233] and even in the case of laws which offended against fundamental principles of the constitution, it was at all times considered safer to secure their formal repeal.[1234] But the more logical idea of absolute nullity, which required no repeal, subsequently prevailed, and we shall find that it is the Senate which, as the guide of the executive power, pronounces enactments to be invalid in consequence of formal flaws.

When we turn from the “people” in general to its manifestations in the separate comitia and in the concilium of the Plebs, we find that, although historically we are dealing with different parliaments, practically we are treating the Roman community engaged with different orders of the day under different formal rules. The people require to be organised in one way for one function, in another way for another,[1235] but under the changing forms there is a unity of personnel which forbids us regarding the different assemblies as different sovereigns.[1236] The only disturbance to this unity is found in the fact that the Patricians were always excluded from the concilium of the Plebs.[1237]

The comitia curiata, the oldest sovereign in Rome, was a mere shadow of its former self. Its main constitutional function was that of passing the lex curiata, which was necessary for the ratification originally of the imperium[1238] and, with the creation of fresh patrician magistracies, of the potestas which these involved.[1239] Yet although in theory no magistracy was properly constituted (justus) until its holder had received the ratification of the curiae, we know that in the case of those with imperium, and we may conclude that in that of others, most of the ordinary functions could be exercised without this sanction. It was only the full exercise of the imperium, whether in jurisdiction, in military command, or in the transmission of office, that was in suspense until the lex had been elicited. Without it the praetor could not give justice from his tribunal,[1240] the consul could not hold an assembly for the creation of his successor,[1241] and whether as magistrate or pro-magistrate could not exercise the full imperium in the field,[1242] until the ambiguous wording of the lex Cornelia de provinciis ordinandis made the requirement in this last particular a doubtful point.[1243]

For the purpose of this conferment the comitia curiata was in Cicero’s day often represented by but thirty lictors,[1244] and the same scanty attendance may have sufficed for the other formal acts which it retained from antiquity. These are the acts of the comitia calata.[1245] The public will and testament made at this assembly was extinct at the close of the Republic; but the comitia still met, under the presidency of the pontifex maximus, for the inauguration of the rex sacrorum and the flamines, and under the same guidance for the detestatio sacrorum made by one who passed from his gens either by an act of adrogation or by transition from the patrician to the plebeian order.[1246]

The comitia centuriata, once known as the “greatest of the comitia” (comitiatus maximus),[1247] not only from its importance as expressing the sovereign will, but from the possibility of enforcing the attendance of the assembled army, always retained something of its military character and its association with the imperium. Its summons and presidency belong by right only to the magistrates with imperium. The consuls are its normal presidents for elections and for laws; the praetor approaches it for purposes of jurisdiction, and the interrex for the election of a consul. The election of magistrates with imperium and of the censors was confined to this body, and we have already seen how its supreme judicial authority was asserted and infringed.[1248] The army alone could declare war,[1249] but its legislative power, though never lost, was infrequently asserted after the recognition of sovereignty in the two assemblies of the tribes which were more easily summoned and organised.