A considerable variety of business came before the assembly. It might be summoned to hear the announcement of news of interest to the community,[979] the reading of the calendar for the month,[980] the declaration of a policy or opinion by a king or chief,[981] or for witnessing acts affecting the interests of the community.[982] More important were judicial cases,[983] questions of war and peace,[984] and elections.[985]
The problem as to the relative power of the king and council on the one hand and of the assembly on the other is difficult. It was a disadvantage to the people, over and above their lack of initiative, to have no means of precisely expressing their will. The Greeks signified their approval by acclamation,[986] the Germans by clashing their weapons,[987] and the Celts by both;[988] either demonstration aimed to express, not the will of the majority,[989] but the intensity of conviction on the part of the assembly as a whole. It lacked as well the means of legally enforcing its will.[990] The Achaeans in assembly approved the petition of Chryses, a suppliant priest; nevertheless King Agamemnon rejected it.[991] After the people had divided the spoils of war, Agamemnon seized the prize they had given another.[992] The Trojans were ready to surrender Helen for the sake of peace; but Priam, to gratify his son, refused, and the war went on.[993] In his relations with individuals the king often acted unjustly and tyrannically. Even in affairs which concerned the entire community he might take large liberty. Without consulting the assembly he could count on the support of the people in a war of defence. Treaties of peace, which were often guest-friendships and intermarriages between royal families,[994] did not come before the people for ratification as a right, but only in cases in which their pledge seemed necessary for the prevention of private warfare. The right of the magistrate to conclude peace with or without discussion in the council or senate was recognized by the states of Italy as late as the Second Samnite war.[995] The king might even declare an offensive war on his own responsibility, if without consulting the people he could feel sure of their support.[996] Enterprises requiring their coöperation he usually submitted to them to win their approval, as he had no means of coercing the entire community. His independence of the assembly increased with the growth of heredity. The idea of sovereignty, strictly speaking, was unknown to primitive times; yet so far as people thought of political power, they assigned it to the king and council.[997] Nevertheless the fact of the assembly’s existence and the need of eloquence for persuading it prove it to have been a real force. The suppression of the German assembly or the prohibition of carrying arms to the meeting was looked upon as intolerable tyranny.[998] For the disturbance of an Irish assembly the penalty was death.[999] Public opinion was a check on royalty,[1000] and in extreme cases the people rebelled and killed their king.[1001]
The strengthening of the kingship naturally tended to weaken the assembly. The Lacedaemonian kings had a right to make war on whatever state they pleased, and any citizen who obstructed this power was accursed;[1002] if, too, in anything the people gave a wrong decision, the kings and council could set it right.[1003] Under the Frankish monarchy the general assembly seems to have entirely disappeared in the sixth century A.D., to be revived in the latter part of the seventh,[1004] in a form which took little account of the commons.[1005] In the other Germanic tribes which entered the Empire the effect of the migration was to strengthen the king and to weaken in a corresponding degree the power of the people.[1006] In Russia Tartar domination, converting the legitimate princes into tyrants, effected the downfall of the assemblies.[1007] The building up of large states, too, necessarily degrades or destroys popular gatherings.[1008]
The heritage of the Roman assembly from the earlier tribal time must have been slight as well as vague—a heritage diminished further by the growing power of the king and nobles. The assumption has often been made that from the beginning the Roman assembly was sovereign. The view rests in part, however, on a confusion of two ideas which should be kept distinct. In its broadest sense populus designates the state, which is sovereign whether it expresses its will through the king, the senate, or the popular assembly, or through the concurrence of two or more of these elements. In interstate relations it always has this meaning. More narrowly populus signifies the masses of citizens in contrast with the magistrates or with the senate.[1009] In the latter sense it cannot be said that the populus was from the beginning sovereign. The Romans themselves of later time understood that in the regal period the senate had the wisdom to advise, the king possessed the imperium, whereas the people enjoyed but a limited degree of freedom, right, and power.[1010] Their condition was not liberty but a preparation for it.[1011] Their assembly, like that of other early Europeans, had no power of initiative; it met only when summoned by the king, and could consider those matters only which the king brought before it. Its object must have been chiefly to receive information and to witness acts of public importance. In no case did the king call upon the assembly for advice; counsel belonged exclusively to the wise elders, who composed the senate;[1012] and should he wish to instruct the people in the merits of a proposed measure, he would himself address them and perhaps invite the most respected senators or his most trustworthy supporters among the private citizens to give the masses the benefit of their wisdom.[1013] In other than judicial assemblies the privilege of speaking must have been sparingly granted.[1014] Finally no elective or legislative act of the curiae was valid without the authorization of the senate (patrum auctoritas).[1015]
With reference to the specific rights of the assembly, Dionysius[1016] states that Romulus granted the commons three prerogatives, (1) to elect magistrates, (2) to ratify laws, (3) to decide concerning war, whenever the king should refer the matter to them. Livy’s[1017] stricture on the absolutism of Tarquin the Proud implies, too, that constitutionally the assembly should have had power to decide on peace and war. But stress should be laid on the admission of Dionysius that probably all the questions above enumerated, or at least those of peace and war, were referred to the assembly at the pleasure only of the king—that the decision of them was not a right of the people, but a concession on the part of the sovereign.[1018] Still more important, these generalizations are in great part invalidated, as Rubino[1019] has shown, by the testimony of their authors. When either refers to individual cases of treaty-making under the kings, he never connects the assembly with the proceedings.[1020] It is significant, too, that the formula of treaty makes the king the only actor, taking no account of the people.[1021] Usually peace continued merely through the lifetime of the king who contracted it,[1022] but a truce for a definite period was binding to the end, even after his death.[1023] Under the republic to the time of the decemvirs the treaty-making power resided in the consuls and senate.[1024] Ordinarily either a senatus consultum empowered the magistrates to use their discretion[1025] or sanctioned the agreement when made.[1026] More rarely the senate treated directly with ambassadors from the enemy.[1027] The clamor of the plebeians sometimes prevailed upon the senate to negotiate for peace;[1028] and at other times it was merely by accident that the people heard of the conclusion of a treaty.[1029] After the decemviral legislation the plebeian assembly of tribes slowly acquired the right of ratification;[1030] in fact it was not till the Second Samnite war that their vote came to be essential.[1031] Among the archives devoted to treaties and alliances, accordingly, senatus consulta and plebiscites alone are mentioned.[1032] The very fact that in the later republic the ratification of treaties belonged exclusively to the tribal assembly[1033] proves that it was an acquired right of the people; for we may set it down as a fixed principle that the curiae and the centuries yielded none of their prerogatives to the tribes.[1034]
As regards the right of the people to declare war a distinction must be drawn between defensive wars, which, admitting neither choice nor delay,[1035] could not be referred to their decision, and aggressive wars, which were in the option of the state to undertake or avoid. Yet even in the case of offensive wars, though the approval of the people was doubtless often sought, they exercised under the kings and in the early republic no real right. When the king or magistrate felt that Rome had suffered injury from a neighboring state, he despatched an ambassador to seek reparation. If the demand was not complied with, the ambassador, calling Jupiter and the other gods to witness the injustice, added: “But we shall consult the elders in our own country concerning these matters, to determine in what way we may obtain justice.” When the messenger had returned to Rome and had made his report, the king consulted the senate substantially in these words: “Concerning such matters, differences, and disagreements as the pater patratus of the Roman people, the quirites, has conferred with the pater patratus of the ancient Latins and of the ancient Latin peoples—which matters ought to be given up, performed, discharged, but which they have neither given up nor performed nor discharged—declare,” said he to the senator whose opinion he wished first to obtain, “what you think.” Then the elder thus questioned replied, “I think the demand should be enforced by a just and pious war; and therefore I consent to it and vote for it.” Then the rest were asked in order, and when a majority agreed in this opinion, war was thereby voted.[1036] In all this account there is no mention of the people; but afterward when the fetialis reached the border of the enemy’s country, and pronounced the formula for the declaration of war, he included a statement that the populus Romanus had ordered it: “Forasmuch as the populus Romanus of the quirites have ordered that there should be war with the ancient Latins, and the senate of the populus Romanus of the quirites have given their opinion, consented, etc., I and the populus Romanus declare and make war on the peoples of the ancient Latins.”[1037] In this connection, as in all formulae applying to international relations, populus means not the assembly but the state; hence the use of the word cannot be taken as evidence of the existence of a popular right to declare war.[1038] Besides this formula we have in support of such a right the general statement only of Dionysius and the implied idea of Livy, referred to above,[1039] neither of which is in itself of especial weight. On the other hand the individual kings seem to have been free to make war at their discretion. The fact that peace and war are represented as depending upon the character and inclinations of the king[1040] further establishes the real view of the Roman historians. In a succeeding chapter[1041] it will be made clear that not till 427 did the centuriate assembly acquire the right to declare an aggressive war; probably not till some time afterward was this right established as inalienable. Previous to that date the warriors, perhaps in a contio, were occasionally called on to give their approval, doubtless, as has been explained above,[1042] to increase their enthusiasm for the war.
With reference to the legislative activity of the assembly under the kings, it is necessary to call attention to the fact that among all peoples in the earlier stages of their growth law is chiefly customary.[1043] At the time of her founding Rome inherited from the Latin stock, to which her people mainly belonged, a mass of private and public customs, which, owing their existence to no legislative power, were the result of gradual evolution. Under such conditions, as in Homeric Greece, the king or chief settled disputes in accordance with these usages, though in the general belief his individual judgments came directly to him from some god. The Homeric king received his dooms—θέμιστες—and even his thoughts from the gods.[1044] The mythical or semi-mythical legislators of Greece, as Minos, Lycurgus, and Zaleucus, were given their laws by revelation. In like manner Numa, who may be considered a typical legislator for primitive Rome,[1045] received his sacred laws and institutions from the goddess Egeria;[1046] and Romulus, the first great law-giver,[1047] was a demi-god, who passed without dying to the dwelling-place of the immortals.[1048] Roughly distinguished, Romulus was the author of the secular law, Numa of the sacred.[1049] In general the Romans of later time looked back to their kings, the founders of their state,[1050] as the authors not only of their fundamental laws and institutions but even of their moral principles.[1051] Doubtless the Roman view of the ancient king is an image of the republican dictatorship, of the extraordinary magistratus rei publicae constituendae, of the consul freed from his various limitations;[1052] but the picture, stripped of the distinctness which came with the gradual formulation of constitutional usage, is, as comparative study shows, true to the primitive condition which it aims to represent.
From this early conception the idea of human legislation gradually emerged. Not daring on his own responsibility to change a traditional usage which the people held sacred, the magistrate found it expedient to obtain their consent to any serious departure,[1053] with a view not to legalizing the proposal, but to pledging the people to its practical adoption. When and how the primitive acclamation gave way to the orderly vote of the comitia curiata cannot be ascertained from the sources.[1054] After this stage was reached, the transaction between king and people had the following form: “I ask you, quirites, whether you will consent to, and consider it right, that T. Valerius be a son to L. Titus as rightfully and legally as if born of the father and mother of the family of the latter, and that the latter have the power of life and death over the former as a father over his son. These (questions) in the form in which I have pronounced them, thus, quirites, I ask you.”[1055] The magistrate brought his formulated request before the people (legem ferre), who accepted it (legem accipere); the question (rogatio) was directed not to the assembly as a whole but to the component citizens, who individually replied ut rogas, “yes,” or antiquo, “no.”[1056] By this procedure the citizens bound themselves to the acceptance of the proposition on an oral promise, which was the strongest form of obligation known to them. Herein is involved the fundamental idea of lex, which was not a command addressed by the sovereign to the people or a contract between ruler and ruled, but an obligation which the citizens took upon themselves at the request of the magistrate.[1057] The verb iubere, which designates the people’s part (populus iubet) in the passing of laws and resolutions, did not originally have the meaning “to order,” which belonged to it in the age of Cicero. Some have derived it from ius habere, “to regard as right;”[1058] others from judh, an extension of the root ju, “to bind.”[1059] In either case it seems to mean no more than to accept or hold as right or as binding. In its widest sense lex denotes any obligation which one party takes upon himself on the offer of another. In this meaning it may apply to a business contract,[1060] in which alone the obligations are reciprocal, to the instruction imposed by a superior magistrate upon an inferior,[1061] to the auspicium which the magistrate formulates and the god accepts,[1062] to the ordinance which the subject, without being consulted, receives willingly or unwillingly from the ruler (lex data),[1063] as well as to the statute established by the question of the magistrate and the affirmative answer of the citizens (lex rogata). The leges of the community, with which alone the present discussion is concerned, were distinguished as publicae.[1064] A lex of the kind was not necessarily general,[1065] but applied as readily to an individual citizen[1066] as to the entire body, to a declaration of war,[1067] or the banishment of a citizen,[1068] as well as to a universal rule of conduct. In the earlier time the lex rogata, or simply lex, seems to have designated any act of an assembly, elective or judicial as well as law-making in the modern sense.[1069] But in the time of Cicero it had come to mean any act of an assembly which was neither an election nor a judicial decision,[1070] and in the latter sense the word is used in this volume.
The acceptance of a proposition by the citizens obligated themselves[1071] but not the government. The king, who retained office for life and was irresponsible, could not be held amenable to law; against a tyrannical ruler the only resource was revolution. Although the republican magistrates possessed remarkably great power, as temporary functionaries they belonged to the people, along with whom they were bound by the laws.[1072]
To the end of the regal period the legislative activity of the people remained narrowly restricted. The body of leges regiae, described as curiate by Pomponius[1073] on the supposition that they were passed by the assembly under royal presidency,[1074] was little more than the ius pontificum—the customary religious law—with whose making the curiae had nothing to do.[1075] If the king wished to admit new citizens,[1076] erect public works, levy forced labor on the citizens,[1077] reform the military organization,[1078] punish a man with chains or death,[1079] make a treaty, or even declare an offensive war, no power compelled him to submit the measure to the citizens. Although he must often have found it expedient to engage their coöperation in national enterprises, or more rarely in a legal innovation,[1080] it may be stated with confidence that before the beginning of the republic the curiate assembly had not acquired the right to be consulted on any of these matters—that its slight activity in legislation and administration was a concession from the king rather than a right; for under the republic such activity, gradually increasing, belonged to the centuries and the tribes. We may accept without hesitation the principle that in form if not in substance the curiae retained all the powers which they had ever actually possessed.