The activity of the comitia centuriata, thus authoritatively established, manifested itself in the passing of the Valerian-Horatian laws of 449,[1399] the lex Iulia Papiria de multarum aestimatione, 430,[1400] the law for the election of six military tribunes by the comitia tributa, 362,[1401] the law of the dictator Publilius Philo, 339,[1402] the third Valerian law concerning appeal, 300,[1403] and finally the Hortensian law, 287.[1404] All have reference to the regulation of magistracies or of assemblies. Meantime the centuriate comitia passed the law for instituting tribunes of the soldiers with consular power, 445,[1405] and censors, 443[1406] (or 435?), for increasing the number of quaestors, 421,[1407] for instituting the praetorship, 367,[1408] and the curule aedileship in the same year.[1409] All the laws thus far mentioned, excepting that for the division of the Aventine, effected important modifications of the constitution, the most of them forced upon the senate and magistrates in the struggle for equal rights in which the commons were engaged with the nobility. In like manner two provisions of the Valerian law of 342, (1) that the name of no soldier should be erased from the muster roll without his consent. (2) that no military tribune should be degraded to the rank of centurion,[1410] established under the sanction of an oath certain fundamental rights on which the soldiers and their officers respectively insisted. Another provision, the total abolition of debts,[1411] if indeed it is historical, was administrative, and is considered therefore in another connection.[1412] Of the same nature, though less sweeping, was the Hortensian provision for the relief of debtors.

As soon as there came to be plebeian senators (about 400), the patricians reserved to themselves the right to decide on the legality of legislative and elective acts of the people under patrician presidency—a right designated by the phrase patrum auctoritas, which signified originally the authorization of the senators, thereafter of the patrician senators. Till 339 the patres were at liberty to give or withhold the auctoritas; but in that year an article of the Publilian law required them to grant it to legislative acts of the centuries before the voting began and while the issue was still in doubt, reducing it in this way to a mere formality.[1413] The effect was to free centuriate legislation from the constitutional control hitherto exercised by patrician senators.[1414] Henceforth the resolutions of this assembly could be declared illegal by no less than a majority of the entire senate. The Publilian statute, accordingly, deprived the patricians of an important power, whereas the senate as a whole continued through its consulta to exercise an increasing influence over the comitia centuriata. Polybius rightly ascribes to the consuls, therefore, the function of bringing the resolutions of the senate before the assembly. It could not have been the intention of Publilius Philo to energize the comitia centuriata by this provision; for another article of the same statute, confirming the validity of the tribunician assembly of tribes, as then actually constituted exclusively of plebeians, paved the way for the Hortensian law, which by making the acts of the tribunician assembly in every respect equal to those of the centuries, deprived the latter of their great importance as a factor in constitutional progress. From the time of Hortensius to the time of Sulla no constitutional statute is known to have been enacted by the centuriate assembly; though our sources do not give us clear information on the point, it is highly probable that the consuls and dictators of this period preferred to bring their measures however important before the tribes.[1415] In Sulla’s time the lex Valeria, 82,[1416] clothing him with his extraordinary dictatorship rei publicae constituendae, must have been passed by the centuries, which alone in addition to the politically obsolete comitia curiata could be summoned by an interrex, as was the author of the law. This act, Lange remarks, cannot well be considered a revival of the legislative power of the centuries, as it was not only passed through intimidation and under a magistrate who had no constitutional right to initiate legislation, but it also created a legalized tyranny destructive of popular freedom.[1417] In the words of Cicero it was the most iniquitous of all laws and most unlike a law.[1418] Only one of Sulla’s statutes, the lex de civitate Volaterranis adimenda, 81, which, depriving the Volaterrani of their civitas cum suffragio, placed them in the condition of the Latins of Ariminum, is known to have been an act of the centuries.[1419] Probably all his other laws were ratified by the tribes.[1420] C. Julius Caesar preferably used the tribes, although it is possible that his lex de provinciis and his lex iudiciaria came before the comitia centuriata.[1421]

Sulla’s constitutional legislation curtailed the powers of the plebeian tribunes and of their assembly, proportionally increasing the importance of the centuries; and although his form of government was of short duration, the optimates thereafter naturally preferred the comitia centuriata for the ratification of senatorial resolutions.[1422] To this assembly accordingly belong the leges Vibiae of the consul C. Vibius Pansa, 43, which confirmed the acts of Caesar, and took the place of Antony’s leges de coloniis deducendis and of his lex de dictatura tollenda.[1423]

On the institution of the censorship, and by the law which called the office into being, it was enacted that elections of censors should be ratified, not by the curiae as in the case of other magistrates, but by the centuries themselves.[1424] Before this date the principle was already established that the people should vote twice in the election of every magistrate in order that if they repented of their choice, they might recall it by a second vote.[1425] As the primary function of the censors was the periodical reconstitution of the comitia centuriata, it was doubtless thought appropriate that this assembly alone should be concerned with the election. The lex centuriata de potestate censoria, evidently passed under consular presidency, remained, like the curiate law in confirmation of elections to other offices, a mere form. It was of too little practical significance ever to be noticed by the historians; in fact no individual instance of the passing of this act is mentioned by any extant writer. Characteristically the lex Aemilia, 433, which is alleged to have cut down the term of censorship to eighteen months,[1426] and the lex Publilia Philonis, 339, which provided that at least one censor must be a plebeian,[1427] were centuriate, whereas the Licinian-Sextian law, 367, which provided that one consul must be a plebeian,[1428] and the Genucian law, 342, permitting both to be,[1429] were plebiscites.

An occasional attempt was made by a magistrate to usurp for the comitia centuriata a share in the administration. The first which is worthy of notice,[1430] even though it may be mythical, is the agrarian proposal of Sp. Cassius, 486. According to the sources it was opposed by the senate and the colleague of the mover. Far from enacting it into a law, the author, on the expiration of his consulship, was himself accused of attempting to usurp the royal power, and was, in one version of the story, condemned to death by the assembly to which he had offered the bill.[1431] The senate must have taken very seriously this first attempt of a magistrate to transfer some of its administrative power to the comitia. The law for the division of the Aventine Hill among the people, 456, was actually passed, most probably by the centuries.[1432] It was forced upon the government by the plebeians, and did not serve as a precedent for the future. The Valerian law of 342,[1433] which abolished debts, was an extraordinary administrative measure similar in character, but far more sweeping, to the clause for the relief of debtors in the Licinian-Sextian plebiscite.

If then the centuriate assembly was excluded from the field of administration, it must certainly in pre-decemviral times have had no part in religious legislation. The law which regulated the intercalary month inscribed on a bronze column by Pinarius and Furius, consuls in 472,[1434] and the ancient law composed in archaic letters, mentioned in connection with the year 363,[1435] requiring the praetor maximus to drive the nail on the ides of September, must accordingly have been acts, not of the centuriate assembly, but of the pontifical college. By the ratification of the Twelve Tables, composed chiefly of private laws and of closely connected religious regulations, an example was set for the invasion of both of these legal spheres by the centuriate assembly. But the precedent remained unproductive; for at this time the tribal assembly under plebeian or patrician magistrates was recognized as competent for legislation, and naturally took to itself the function of enacting the less weighty, for a time generally the non-constitutional, laws.[1436] We are not to imagine the field of legislation clearly divided into constitutional, private, religious, and other departments; aside from the question of declaring an offensive war, which remained strictly the province of the comitia centuriata, the distinction in legislation was simply between the more and the less important; the dignified assembly of centuries, organized on an aristocratic-timocratic basis, was entrusted with the weightier business, whereas the simpler tribal assembly, which was easier to summon and more expeditious in action, served well enough for the despatch of lighter business. The question of the assembly to be employed was largely one of inertia; it required a far greater force of circumstances to set in motion for legislative purposes the cumbrous centuriate assembly than the relatively mobile gathering of the tribes.

III. Judicial

The jurisdiction of the people in whatever assembly was confined to cases of crime and of serious disobedience to magistrates.[1437] It was not exercised by them in the first instance but only by way of appeal. In the opinion of the Romans Tullus Hostilius was the first to grant an appeal,[1438] necessarily to the comitia curiata, which under the kings remained the only formally voting assembly.[1439] During the regal period, the well attested appellate function of the comitia[1440] was simply precarious, depending wholly on the pleasure of the king.[1441] The Romans represented the advance in liberty brought by the republic as consisting partly in the establishment of the right of appeal for every citizen through the lex de provocatione of Valerius,[1442] a consul of the first year of the republic—according to Cicero the first law carried through the comitia centuriata—providing that no magistrate should scourge or put to death a citizen without granting him an appeal to the people.[1443] Although the historical existence of this Valerius has been questioned, and though his law has the appearance of being an anticipation of the Valerian law of 449, or more closely of that of 300,[1444] we must admit in favor of its reality that the decemvirs were themselves exceptionally above appeal and that their laws guaranteed to the citizens an extensive use of the right.[1445] The appellant, however, had no legal means of enforcing his right against the magistrate; he could do no more than “throw himself on the mercy of the crowd, and trust that their shouts or murmurs would bend the magistrate to respect the law.”[1446] The first lex Valeria, accordingly, brought little real benefit to the citizens.[1447] The right was recognized and its application extended, as intimated above, by the Twelve Tables, in which various laws relating not only to capital crimes but to some of less importance granted an appeal to the people.[1448] It was provided also by a special statute of the code that judgments as well as laws involving life or citizenship could be passed only by the comitiatus maximus, which is evidently the comitia centuriata.[1449]

The Valerian-Horatian law of appeal, 449, was directed against the recurrence of the decemvirate or any similar magistracy with absolute jurisdiction, and hence resembled neither the laws of the Twelve Tables referring to the subject nor the Valerian law of 509. It provided that any one who brought about the election of such a magistracy might be put to death with impunity,[1450] and is alleged to have been reinforced by a Duillian plebiscite of the same year, which set the penalty of scourging and death for the same offence.[1451] These regulations could not refer to the dictatorship, which was appointive not elective, and which continued to possess absolute jurisdiction for more than a century after the decemviral legislation.[1452]

But legal rights by no means imply actual enjoyment; and the decemviral laws of appeal must have long remained substantially inoperative through lack of a power sufficiently interested in their enforcement; “the might of the few was stronger than the liberty of the commons.”[1453] The right was limited, too, by the first milestone,[1454] and hence did not affect the imperium militiae.[1455] The only punishment of a magistrate for refusal to grant an appeal even by the Valerian law of 300, was to be deemed wicked.[1456] Furthermore the oft-recurring dictatorship was unrestricted by the law, being in this respect a temporary restoration of the regal office.[1457] Not till after the enactment of the last Valerian statute did the people begin to enjoy in fact the privilege which had long been constitutionally theirs. The enforcement of the law, as in general of the rights of the citizens, was chiefly due to the plebeian tribunate, “the only sure protection even of oppressed patricians,”[1458] but itself a limitation on the jurisdiction of the assembly.[1459] At some unknown date after 325[1460] the dictator’s authority within the city was subjected to appeal; and it has accordingly been suggested that this limitation was due to the Valerian law of 300.[1461]