The Roman assemblies from their origin to the end of the Republic

by George Willis Botsford

A law of the year 471 gave the tribunician assembly a tribal organization. This measure, brought about by the agitation of Publilius Volero, tribune of the plebs of that year,[1632] must, for the reason above mentioned, have been an act of the comitia centuriata.[1633] The motive given by Livy was the desire of the tribunes to free themselves from the influence which the patricians through the votes of their clients exercised on the assembly.[1634] The curiae contained all the citizens,[1635] the tribes none but the landowners. The tribal organization, therefore, excluded not all the clients but those only, together with any other citizens, who were landless.[1636] Probably in other ways the patricians had greater control of the curiate than of the tribal assemblies, although it is impossible to believe with Dionysius[1637] that the essence of the change from the curiate to the tribal comitia consisted in the elimination of auspical influence. That the law forbade the patricians to take part in tribunician assemblies, as Zonaras[1638] imagines, is not probable, for it gave the tribune no new authority over the patricians; he had power neither to summon them to his assembly nor to expel them from it.[1639] In fact we have evidence of the presence of patricians in tribunician assemblies after this date.[1640] The so-called law of Publilius Volero, now under discussion, was confused by the sources with the Publilian law of 339, some of the provisions of the later act being uncritically assigned to the earlier.[1641]

The statute of 471 imparted to the tribunician assembly no new function. Although in mentioning the bill Dionysius[1642] includes a proposal to grant the assembly legislative power, when he comes to speak of the statute as actually passed, he refers only to its provisions for the election of plebeian tribunes and aediles by the tribes, herein agreeing with Livy and other authorities.[1643]

In the same year four tribunes of the plebs were elected for the first time.[1644] The increase was probably effected by an article of the statute under discussion.

Till after the decemviral legislation the comitia tributa,[1645] brought into existence by the statute of 471, was restricted, as had been the tribunician comitia curiata, to the transaction of purely plebeian business. In the records of this period we find a continuance of apocryphal agrarian bills[1646] and condemnations of retired magistrates.[1647] In reality the only political weapon of the tribunes, aside from general agitation, continued to be the obstruction of the levy,[1648] as is proved by their increase in number to ten.[1649] The only agrarian law of the period, the so-called lex Icilia for the division of the Aventine among the people, was passed by the comitia centuriata.[1650] The very circumstance that this mild concession to the plebs was couched in a lex sacrata[1651] shows how little faith the commons had in the government.[1652]

During this period the supreme power was the senate. Shortly after the fall of the kings it provided for the purchase of corn among neighboring states in a time of scarcity, made a state monopoly of salt in the interest of the poor, freed the plebs from port dues and tributum, thereby placing the whole burden of these taxes on the wealthy.[1653] These acts imply legislative as well as administrative competence. Foreign affairs,[1654] including the decision of war and peace, were in its hands. It resolved not to restore the property of the Tarquins,[1655] decreed triumphs to victorious generals,[1656] the celebration of games,[1657] the expulsion of the Volscians from the city in the time of a festival,[1658] controlled the magistrates, including the plebeian tribunate, by means of the dictatorship,[1659] or clothed the consuls with absolute authority.[1660] Little room was left for the activity of the assemblies.

Notwithstanding these unfavorable conditions the tribunes of the plebs through obstruction of the levy and through their harangues in contiones[1661] were chiefly instrumental in bringing about the institution of the decemviri legibus scribundis. Actual votes in tribunician comitia on proposals looking to that end[1662] could have had no more than moral weight. Under popular pressure the consul Sestius, 452, referred the question to the senate,[1663] and the bill for their institution was passed by comitia, doubtless of the centuries. The only valid activity, therefore, of the tribal assembly prior to the decemviral legislation, so far as is known, was the enactment of plebiscites, which lacked the force of law, the election of plebeian officials,[1664] and the quasi-judicial decision of cases appealed to it by those who were accused of violating the tribunician sanctity.[1665]

An epoch was made in the history of the tribunate and of the tribal assembly by the consulship of Valerius and Horatius, 449, who proposed and carried a centuriate law[1666] which gave these institutions a legal basis. The article which logically first claims our attention provided that any one who injured the tribunes of the plebs, the aediles, or the decemviral judges should be devoted to Jupiter, and his property should be forfeit to the temple of Ceres, Liber, and Libera.[1667] According to Livy,[1668] who here represents the tribunician point of view, the original lex sacrata, passed on the Sacred Mount, was first renewed with appropriate ceremonies, thus reëstablishing the religious inviolability of the plebeian officials, whom then the article of the Valerian-Horatian statute here mentioned rendered legally inviolable. The constitutional relation of these two ideas was difficult even for the Romans to determine. Certain jurists, controverting the tribunician interpretation, asserted that this law made no person sacrosanct, but merely threatened with capital punishment any one who injured the officials concerned, clothing them thus in the same kind of inviolability as that which protected the ordinary magistrates.[1669] The object, according to this view, was not only to eliminate from the government the anomaly of a power sanctioned by religion only,[1670] but also to convert the plebeian officials into state officials. The leaders of the plebs gladly accepted the new position tendered them, without being willing however to withdraw from the old. Henceforth we have to deal, accordingly, with a group of legally recognized public functionaries who effectively claimed a religious inviolability hard to reconcile with the constitution, in which they were in time to make for themselves a disproportionate place.

The second article of the Valerian-Horatian statute was to the effect that “whatever the plebs ordered in their tribal assembly should be valid for the people”;[1671] so that henceforth plebiscites, when passed under the conditions hereafter specified, were the equivalent of leges, as they were often so called. It is so similar to a provision of the later Publilian and of the still later Hortensian statute that we should incline to reject it as an anticipation of the one or the other, were it not for the fact that under it important plebi scita, as the Canuleian, the Licinian-Sextian, and the Genucian, were passed.[1672] We must accept it, then, as historical, and adapt our interpretation to the few known facts in the case.

Notwithstanding the use of the word plebs to designate the tribal gathering under tribunician presidency, there is no valid reason for supposing that the Valerian-Horatian law altered its composition—that the patricians were now excluded.[1673] Dionysius[1674] is clearly of the opinion that they participated in this form of comitia both before and after the enactment of the statute under consideration; and Livy[1675] thinks of them as still present in the tribunician meetings as late as the struggle for the Licinian-Sextian laws. The problem must be considered in connection with the development of the voting function of the assembly. Primitively the leaders (nobles) in council decided upon a measure, which they then submitted to the people to be accepted with clamor and din.[1676] Although the acclamation was essentially an act of the masses, nothing forbade the nobles to join in the shouting. Doubtless in the tribal assemblies the expression of opinion within the tribe continued for a time to be by acclamation.[1677] As long as this primitive condition existed, a distinction could not be drawn between the right to be present and the right to join in the decision of questions brought before the comitia. Undoubtedly the custom of voting by heads within the tribe was an imitation of a usage adopted by the comitia centuriata some time after the institution of the latter;[1678] hence we could not reasonably assume its use by the tribes so early as the pre-decemviral period. The question therefore as to whether the patricians, who were certainly present in meetings of the tribes, enjoyed the right of voting in them could not have arisen till after the decemviral legislation. The plebeians had found it impossible by their own powers to exclude from their assembly the landless clients, who were inferior to themselves.[1679] Much less could they exclude the nobles. If the presiding tribune could not prevent their remaining after the people had been formed into voting groups, he could not prevent their voting. As the patricians, equally with the plebeians, belonged to the tribes, the former, being men of superior privilege, could not lawfully be debarred from meetings of their associations; and if they chose to attend, it was not for the tribunes of the plebs to decide as to the law in the matter. The word plebs in the statute is susceptible of an easy explanation. As the comitia curiata and comitia centuriata, under patrician presidents, had from the beginning been termed populus, nothing could be more natural than that from the time an assembly convened under plebeian presidency for plebeian objects, the latter should by way of distinction be termed plebs, even though the few patricians were included. Ordinarily the plebeians must have welcomed patricians to their assemblies, as the presence of magistrates and senators and their sons added dignity and weight to the proceedings. But when the patricians used all their superior influence in both lawful and unlawful ways to block a popular measure, the tribunes, naturally wishing then to exclude them, attempted to establish the principle that tribunician assemblies were exclusively plebeian. This question was settled by the law of Publilius Philo, 339.[1680]

This article of the Valerian-Horatian statute was a concession extorted from the patrician government by the strongest pressure, perhaps by a plebeian secession. The actual advantage which it brought to the plebs was minimized, however, by the provision that the previous consent of the senate was essential to the validity of bills brought before the tribunician assembly.[1681] The patricians could urge in support of this arrangement that as their magistrates according to long established custom always obtained the previous consent of the senate (senatus consultum) to measures brought before any assembly, and were absolutely required to obtain senatorial sanction (patrum auctoritas) for curiate and centuriate laws and elections,[1682] the tribunes, who were free from the trammels of the sanction, should be legally compelled to consult the senate before bringing a measure into their assemblies, especially as their legislation was in a field hitherto monopolized by the patrician magistrates and the senate. Although the tribunes of the plebs would have preferred to understand by the term plebiscite all that it had meant before—the unconditioned resolution of the tribal assembly under their presidency—they must have felt satisfied for the time being with the great gain they had made, however strenuous they afterward became to relieve themselves of senatorial control. This condition on the validity of the plebiscite is not expressly mentioned by Livy in connection with the Valerian-Horatian legislation, but is assumed by the sources for the following period.[1683] The same thing is clearly implied, too, in the long series of political struggles which came after the enactment of the Valerian-Horatian statute.[1684] Had the tribunes been free to legislate without interference on the part of the senate, they would have been in a position easily to complete the social and political equalization of the orders, and by one sweeping reform law to place themselves and their constituents in the condition reached by an almost uninterrupted conflict of a hundred and sixty years (449-287).[1685]