I. The Earlier Organization: the literature on this subject is essentially the same as for ch. iv.
II. The Reform: Schulze, C. F., Volksversamml. der Römer, 69 ff.; Huschke, Ph. E., Verfass. des Königs Servius Tullius, ch. xii; Peter, C., Epochen der Verfassungsgesch. der röm. Republik, 42 ff.; Savigny, F. C., Verbindung der Centurien mit den Tribus, in Vermischte Schriften, i. 1-13; for other early literature, see Lange, Röm. Alt. ii. 495 ff., notes; Neumann, C., Zeitalter der punischen Kriege, 187 ff.; Nitzsch, K. W., Gesch. der röm. Republik, i. 146 f.; Mommsen, Röm. Tribus, 66-113, 143-149; Röm. Staatsr. iii. 269 ff.; Lange, L., De magistratuum romanorum renuntiatione et de centuriatorum comitiorum forma recentiore, in Kleine Schriften, ii. 463-493; Röm. Alt. ii. 494-516; Madvig, J. N., Verfass. und Verw. des röm. Staates, i. 117-23; Herzog, E., Röm. Staatsverf. i. 320-7; Die Charakter der Tributcomitien ... und die Reform der Centuriatcomitien, in Philol. xxiv (1876). 312-29; Willems, P., Droit public Romain, 92-8; Mispoulet, J. B., Institutions politiques des Romains, i. 46-8; Greenidge, A. H. J., Roman Public Life, 252 f.; Abbott, F. F., Roman Political Institutions, 74-6; Karlowa, O., Röm. Rechtsgesch. i. 384-8; Soltau, W., Altröm. Volksversamml. 358-71; Cicero de Re Publica und die servianische Centurienordnung, in Jahrb. f. Philol. xli (1895). 410-4; Kappeyne Van de Coppello, J., Comitien, 20 ff.; Morlot, E., Comices électoraux sous la république Rom. ch. v; Goguet, R., Centuries, ch. iv; Le Tellier, M., L’organisation centuriate, ch. ii; Hallays, A., Comices à Rome, 25-31; Plüss, H. T., Entwick. der Centurienverfass.; Ullrich, J., Centuriatcomitien; Clason, O., Zur Frage über die reformierte Centurienverfass. in Heidelb. Jahrb. lxv (1872). 221-37; Ritschl, F. W., Opuscula Philologica, iii. 637-73; Genz, H., Centuriat-Comitien nach der Reform; Guiraud, P., De la Reforme des Comices centuriates au III Siècle av. J.-C. in Rev. hist. xvii (1881). 1-24; Klebs, E., Stimmenzahl und Abstimmungsordnung der ref. servianischen Verf., in Zeitschr. d. Savignystift. f. Rechtsgesch. Röm. Abt. xii (1892). 181-244; Meyer, E., Die angebliche Centurienreform Sullas, in Hermes, xxxiiii (1898). 652-4; Humbert, G., in Daremberg et Saglio, Dict. ii. 1389 f.; Kübler, in Pauly-Wissowa, Real-Encycl. iii. 1956-60.
CHAPTER XI
THE FUNCTIONS OF THE COMITIA CENTURIATA
I. Elective
The first act of the centuriate assembly according to Livy,[1350] who has certainly placed the beginning of its functions at the earliest possible date,[1351] was the election of the first two consuls. Thereafter these comitia not only continued to elect the consuls, but also naturally acquired the right to choose all elective higher magistrates, extraordinary as well as ordinary, who were entrusted temporarily or permanently with some or all of the consular power—including the decemviri legibus scribundis, 451, 450, the tribuni militum consulari potestate, beginning in 444, the two censors, beginning in 443 (or 435?), and the praetors, increased gradually from one in 366 to sixteen under Caesar.[1352] The activity of this assembly in elections expanded with the growth in the number of offices; and its importance was further enhanced by the opening of the patrician magistracies to plebeians. The validity of a centuriate elective act depended upon the subsequent curiate law, which soon became a mere form, and upon the patrum auctoritas. The latter, too, was deprived of all vitality by the Maenian plebiscite,[1353] which required the act to be passed before the election while the issue was uncertain.[1354] The date of this plebiscite is unknown; but it probably followed close upon the Hortensian legislation (287).[1355]
II. Legislative
In an earlier chapter[1356] it was shown that primitive Rome, like primitive Greece, regarded law as god-given—a conception which left no scope for legislation by a popular assembly. Though under the kings the people may occasionally have been called to vote on a resolution affecting their customs, the comitia curiata never acquired a law-making function.[1357] Even the declaration of war, which historical Rome looked upon as a lex, was issued by the king without the consent of the community, his only need being to secure the hearty support of the warriors.[1358] It seems probable therefore that this question came, not before the comitia, but before a military contio.[1359] From the custom of the soldiers to participate in the settlement of questions touching their interests[1360] developed the function of declaring war. The people, however, were slow in acquiring the right. It is true that several such acts are mentioned by Dionysius for the early republic—for the war against the Volscians, 489,[1361] against Veii, 482,[1362] and against the Aequians and Volscians in 462.[1363] These instances may be explained either as acclamations in contio or as exceptional votes in the comitia centuriata, or with more probability, owing to the character of our sources for those early times, as anticipations of later usage. The decisive fact in the problem is that as late as 427 a controversy arose as to whether war could be declared by order of the people only, or whether a senatus consultum was sufficient. It was settled in favor of the people by the threats of the plebeian tribunes to impede the levy.[1364] For the next hundred years mention is often made of the exercise of this function by the people;[1365] and when a declaration was once issued by them, it could be recalled only by their vote.[1366] During the period of the Samnite wars the assembly still more frequently made use of this right.[1367] In better known times we find it firmly established. The people declared war against Carthage in 264,[1368] against the Illyrians in 229,[1369] against Carthage again in 218,[1370] against Macedon in 200,[1371] against Antiochus in 191,[1372] against Macedon again in 171,[1373] against Jugurtha in 111.[1374] In the case of the two Macedonian wars here referred to, the declaration is mentioned as an act of the comitia centuriata.[1375] In 167 the praetor M. Juventus Thalna attempted to pass through the tribal assembly a lex de bello indicendo against the Rhodians, but was effectually opposed by a tribune of the plebs;[1376] so that the function continued to be exclusively centuriate. Cn. Manlius Volso in 189 made war upon the Gallograeci without an order of the people or a decree of the senate, and was on that ground accused in the senate by two of his legati.[1377] We conclude, however, that the charge was fruitless from the circumstance that the senate finally decreed him a triumph.[1378] For beginning war against the Histrians on his own responsibility the consul A. Manlius, 178, was threatened with a prosecution, which was quashed by a tribunician veto.[1379] Licinius Lucullus was not even brought to trial for the war he waged without an order of the people against the Vaccaei in 151.[1380] Hence it appears that though a magistrate could not legally begin war on his own initiative, there was no real danger of condemnation for so doing. The reason is that those in authority attached little importance to the right of the comitia in the matter. Only once is mentioned a fear lest the people may not give their consent to a war.[1381] One case of rejection is recorded, and even here the centuries at a second session obediently accepted the consul’s proposition.[1382] The control of diplomacy and of the revenues by the senate and magistrates assured these powers the practical decision of questions of war and peace to such an extent that ratification by the assembly could ordinarily be counted on as certain; and its influence decreased with the expansion of the empire. Meantime, however, the idea of popular sovereignty, which was expressing itself in other spheres of government, effectually demanded, if only in form, some concession to the assembly in this field as well; and accordingly in the formula of declaration “populus” wholly takes the place of the once all-important “senatus.”[1383] By such empty concessions the nobility rendered the people more docile. Thus to the end of the republic the centuriate assembly retained the constitutional right to decide questions of aggressive war, although in practice the magistrates nearly regained the place which they and the senate had held during the century following the overthrow of kingship.[1384]
The nature of our sources does not allow a precise judgment regarding the importance of the comitia curiata in the early republic. To the time of the Gallic invasion it may occasionally have passed resolutions affecting the status of citizens.[1385] But as legislation never became an acknowledged function of the curiae, we are in a position to assert that through the comitia centuriata the people were first introduced into this sphere of public life.[1386]
The earliest legislation of this assembly, in fact the earliest recorded legislative act of the Roman people, was the lex de provocatione attributed to Valerius Publicola, consul in the first year of the republic, 509.[1387] It was also through the centuriate assembly that the consuls Valerius and Horatius in 449 passed a law which forbade the election of a magistrate without appeal, and affixed as a penalty the outlawing of the trespasser.[1388] The third Valerian law of appeal in 300[1389] was an act of the same assembly, whereas all three Porcian laws on the same subject seem to have been tribal.[1390] The legislative function of the centuriate assembly, resting in the pre-decemviral period simply on precedent, brought into being the statute of 471 to establish a tribal assembly for the transaction of plebeian business, improperly known as the Publilian law,[1391] the lex sacrata for the division of the Aventine among the plebeians, erroneously termed Icilian, 456,[1392] the lex Aternia Tarpeia de multae dictione, 454,[1393] the lex Menenia Sextia on the same subjects in 452,[1394] the laws ratifying the Twelve Tables in 451, 449[1395]—all excepting the second having reference to the limitation of the magisterial power. Regarding the creation of offices, no mention is made of a law for the institution of the consulate itself; but the centuries passed a law for the creation of the dictatorship, 501,[1396] and of the decemviri legibus scribundis, which should be named Sestian after the consul who undoubtedly proposed it, 452.[1397] Thus far popular legislation had no basis excepting precedent, but a law of the Twelve Tables now provided that there should be resolutions and votes of the people, and whatever the people voted last should be law and valid—the first clear enunciation of the principle that the will of the people, whenever expressed, prevailed over every other authority.[1398] It was far from establishing popular sovereignty, however, for the initiative remained with the magistrates.