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

by George Willis Botsford

(1) Doubtless a clause for the relief of debtors, of which no mention is made in our scant sources.

(2) A provision that without the consent either of the senate or of the patrician portion of it a resolution of the plebs should be valid for all the citizens.[1917]

At the time when the Valerian-Horatian statute provided that with the consent of the senate resolutions of the tribunician comitia tributa should have the force of law, the senate was still composed exclusively of patricians; and the phrase senatus consultum in this law was therefore considered a full equivalent of the patrum auctoritas, the only difference being that the consultum was given in advance of a popular vote and the auctoritas subsequently to it. But when with the appearance of plebeians in the senate the two acts began to drift more widely apart, the patricians successfully claimed an exclusive right to the auctoritas, which, as we have seen,[1918] was reduced to a formality, so far as centuriate legislation was concerned, by an article of the Publilian law. So long as the patricians voted in the tribunician comitia tributa, however, and constituted a majority in the senate, they were willing to abide by the specific declaration of the Valerian-Horatian statute which conditioned the validity of the plebiscite on the senatus consultum. But from 339 they were legally excluded from the tribunician comitia tributa, and they foresaw, moreover, the end of their majority in the senate. In the period between 339 and 287, accordingly, they set up a new claim, based doubtless on the practical intention of the Valerian-Horatian law, to be free from plebi scita because the latter were passed without their auctoritas.[1919] If they could make good their intention, they would remain unaffected by tribunician laws for the abolition of debt. But the Hortensian statute settled finally the controversy to their disadvantage. That it also rendered the consultum unessential to the validity of the plebiscite is proved not only by later usage but also by the statement of our sources that resolutions of the plebs were placed by the Hortensian act on an equal footing with laws.

(3) Now that the tribunes were given equal freedom with the patrician higher magistrates in initiating legislation, it was of advantage to the nobility to bring the former into the closest possible touch with the senate. Probably therefore the right of the tribunes not only to sit in the senate, but also in the interest of their business to summon that body and to preside over its sessions when so convoked, was due to a provision of the Hortensian law.[1920]

(4) A correlate of the full power to initiate legislation was the right to veto acts of the government, probably acquired by the Hortensian statute.

(5) But the veto depended upon the power to prosecute.[1921] The unlimited veto implied a right to bring finable or capital actions independently of the will of the patrician magistrates. Either by a provision of the Hortensian statute or as a direct consequence of it, the tribunes acquired an unconditioned right to prosecute, being now competent in capital cases to compel the praetor to grant the auspices for holding the comitia centuriata. With the establishment of their absolute power of intercession and jurisdiction they ceased to resort to sedition.

(6) Another article provided that the market-days should be fasti, allowing judicial business to be done thereon, but forbade the meeting of voting assemblies on such days.[1922] The peasants who came into the city to use the markets were thus afforded an opportunity to have their law suits settled without being engrossed by the duty of voting, though the magistrates were at liberty to invite them to informal contiones.[1923] This Hortensian provision was conservative in so far as it placed the tribunician assembly under the same pontifical regulations of the calendar as those which were to control the other forms of comitia.[1924]

The right of the people to elect their magistrates, with the exception of the dictator and the master of horse, existed from the beginning of the republic. Their right also to create new offices began with the institution of the consulship, and was frequently exercised during the period treated in this chapter. In the age which begins with the Valerian-Horatian legislation we find the people regulating by law the qualifications and conduct of candidates as well as the powers and functions of the magistrates themselves. They had the same right to deal with the organization and competence of the assemblies. From 358 to 287 they rapidly extended their legislative power, by precedent rather than by statute, over the whole field of the constitution and over the administration in all its departments; they ventured even to regulate the senate and to interfere with the imperium. Controlled originally by the senate, in the end they won their freedom from that body, whereas the initiative in every act always remained with the presiding magistrate. Meantime they had acquired supreme judicial power. In constitutional theory they were at last sovereign. The senate and the magistrates, so this theory asserted, still retained large administrative powers for the sole reason that the assemblies, unable to manage the current details of public business, were content with occasional participation and regulation. Most of these gains had been made by the tribes under the presidency of tribunes or of patrician magistrates, usually praetors. In legislation the comitia tributa had rendered the centuriate assembly dispensable excepting in declarations of offensive war and in the confirmation of censorial elections. The question whether the people in their centuries and tribes were to realize their sovereignty in actual public life was left to the following period.

The literature on this subject is included in the bibliography for the preceding chapter.