From the very first, Roman popular assemblies appear to have had two peculiarities which remained characteristic of them so long as they continued to exist: (a) the voting was always by groups, and (b) the assembly could meet only when summoned by a magistrate, and could transact only the business put before it by the magistrate who summoned it.
The assembly did not, like the British House of Commons, vote by a simple counting of heads. First the heads were counted in each group, the majority determining the vote of the group; then the votes of the groups were counted, and the majority determined the vote of the assembly. The first group to be used for this purpose was the curia, and the earliest assembly was therefore known as the comitia curiata (1).
The exact nature of the curia is a matter of some doubt. Very probably it was, like the later tribe, a territorial division, but it appears to have been used also for military purposes and perhaps for taxation, as well as for voting. We are told by the historians that there were ten curiae in each of the three old tribes, Ramnes, Tities and Luceres (2), into which the Roman people were originally divided, and that each curia provided ten horsemen and a hundred foot-soldiers, so that the earliest Roman army consisted of 300 cavalry and 3000 infantry. The historians also say that each curia was divided into ten gentes, but it is not possible to accept this tradition. The gens corresponds to the clan and was based on real or supposed relationship between its members. It was a natural unit and existed before the state; not even the Roman historians with their tendency to ascribe every institution to some definite legislator ever imagined that any one of them created the gens. It is therefore extremely unlikely that the gentes could have been fitted so neatly into the artificial curiate system; there could hardly be exactly ten gentes in each curia (3).
What functions, if any, were reserved for the comitia curiata under the monarchy we do not know. The historians do indeed say that it was for the people to decide questions of peace and war, but this is probably only a deduction from the law of a later period. We also hear of leges proposed by the king and carried by the comitia, but legislation is rare in primitive societies and it is more than doubtful whether any such laws were ever passed. Nor do modern authorities believe that the Roman historians were right in thinking that the king was elected by the comitia. In all probability the kingship was neither hereditary nor elective, but each king nominated his successor, the function of the comitia being merely to acclaim the new ruler, not to choose him.
We must indeed not imagine that there was any very definite constitution. Probably it would depend very much on the personality of the king what questions he decided by himself or with the advice of the senate, and what he left to be decided by the comitia.
In any case the comitia curiata did not remain any political importance in historical times; perhaps before, more probably a century or two after, the abolition of the monarchy it was replaced, for political purposes, by another comitia, that is, by an assembly in which the citizens were summoned according to different grouping. Before this time the plebeians, who were probably originally excluded from the curiae, had almost certainly attained to membership.
Although politically unimportant in republican times, the comitia curiata continued to meet for certain purposes connected with private law, the making of wills and adrogations, and it had also one formal function connected with public law. When a magistrate with imperium had been elected in the new comitia his office had to be confirmed by a lex de imperio passed by the curiate assembly. In fact, however, for all these purpose, which become purely formal in historical times, the thirty curiae were represented by thirty lictors, the attendants of the magistrates.
The individual curiae continued to exist; they had sacred rites and apparently communal funds, but they were of no great importance.
The assembly which replaced the organisation by curiae for political purposes was the comitia centuriata, the basis of which was the centuria, literally "hundred". Its institution was, according to tradition, the work of Servius Tullius, the last but one of the seven kings (traditional date 578-535 B.C), and it thus formed part of the "Servian" constitution. That it and the rest of the "Servian" constitution really go back to the time of the monarchy is unlikely. The Roman historians were fond of ascribing constitutional features for which they could not account to Servius as the great reforming king, just as they liked to credit the second king, Numa Pompilius, with all religious institutions. In fact the centuriate organisation as it appeared in historical times was no doubt the result of a long development, not the creation of a single mind. Some of the figures seem to point to a date about the beginning of the fourth century B.C.
The chief feature of interest about the comitia centuriata is its timocratic basis, that is, the preponderance given in it to wealth. The citizens were divided first of all into five classes, according to their wealth, each class being then further subdivided into centuries. In the first (wealthiest) class there were eighty centuries, in the second, third and fourth, twenty centuries, and in the fifth, thirty centuries. Ranking above all, but without any definite property qualification, were eighteen centuries of equites (cavalry), and there were also four centuries of artificers and buglers, and one consisting of all those who had not even the qualification for the lowest class (proletarii or capite censi). In all there were thus 193 centuries, and, as voting was by centuries, the wealthiest class together with the equites (ninety-eight) could outvote all the rest.
In the historians the property qualifications for the different classes are given in money (100,000 asses for the first class, 75,000 asses for the second, etc.), but as the organisation probably goes back to a time earlier than even the first coinage of bronze money at Rome it has been conjectured that originally only land was counted. Be that as it may, in historical times this was no longer so; all forms of wealth were taken into account, and sons under the power of their fathers, who could not own any property themselves, were presumably placed in their fathers class.
That the comitia centuriata has some connection with the military organisation of the Roman people is clear. The arrangement into cavalry, infantry and technical troops is sufficient proof, and we hear further that in each class half the centuries consisted of iuniores (men under the age of forty-six), who formed the active army, hald of seniores (men between forty-six and sixty) who formed the reserve. We also hear that the weapons and armour with which the members of the different classes had to provide themselves varied; the first class having to provide the panoply of a fully armed infantryman, the others a less expensive equipment. On these grounds Mommsen held that the comitia centuriata was in origen and long remained essentially the Roman people in their military array, the military organisation being used for voting purposes. There are however very serious objections to this view. The centuries of the voting assembly cannot ever have been the tactical unit used in the field, because military organisation requires a unit of standard strength, whereas the number of centuries in each class was settled once and for all and their strength therefore must have varied with growth of population and the changes in wealth. Further it would be impossible in any community for the number of men between forty-six and sixty to be as large as than of men under the age of forty-six. We must thus be content to say that the centuriate assembly, though influenced by military considerations, especially in that the right to vote goes with the duty of military service, was an especially in that the right to vote goes with the duty of military service, was an organisation distinct from the real army and probably from its inception based on a timocratic principle.
At some date after 241 B.C., but before 218 B.C., the influence of wealth in the comitia centuriata was diminished by a combination with the tribal divisions of which we shall speak below. The exact nature of this "democratic reform" is doubtful, but some light appears to be thrown on it by a recently discovered inscription. The number of centuries, it is suggested, remained at 193, but these were constituted ad hoc for each meeting in the following way. Seventy were formed by taking separately from each of the thirty-five tribes the seniores and iuniores who had the census requisite for the first class. In the lower classes lots were cast among the tribes so that the seniores or iuniores of two, or in some cases three, tribes were taken, according as the lot fell out, to make up each of the remaining centuries. The first class would thus, even with the equites, control only 88 votes out of 193, instead of a majority as before. The old system was restored temporarily (88 B.C.) by Sulla in accordance with his aristocratic policy, but abolished again almost at once by the democratic party.
The people were divided not only into curiae and centuriae but also into tribes (tribus), which came to form the basis of a third assembly, the comitia tributa. The tribal, like the centuriate, organisation is ascribed to Servius Tullius, who is said to have divided the city into four tribes, to which seventeen "rustic" tribes embracing the land outside the walls were subsequently added. Various further additions were made with the acquisition of new territory until in 241 B.C. the number reached thirty-five at which it remained, newly acquired land being thereafter incorporated in the existing tribes. The tribes were territorial divisions, which took the place of the old curiae for the purposes of taxation and the military levy. But they were also, like the curiae, divisions of persons, although, unlike the curiae, they had no internal self-government and no sacra.
Originally only landholders were enrolled in the tribes, each in that tribe in which his and lay, though there must from the first have been some room for choice and magisterial discretion, for if a man owned land in several tribes, he could not be enrolled in more than one, and it would be for the magistrate to decide in which to place him, no doubt often in accordance with his own wishes. A great change was however made in 312 B.C. when Appius Claudius used his powers as censor to enrol landless citizens in the tribes, and thenceforward every Roman citizen was a member of a tribe (4). The tribal designation became almost part of the citizen's name and passed normally from father to son, new citizens being enrolled in the tribe where their home was, without reference apparently to any ownership of land.
At what period the tribes were first used as the basis of an assembly –the comitia tributa– is unknown. That it was before the passing of the XII Tables is made probable by the reference in the Tables to the comitia centuriata as "comitiatus maximus". This implies the existence of a lesser comitia, which can only be the tributa. Livy mentions the passing of a statute by the tribes in 357 B.C. But the whole growth of the institution is obscured by confusion with the concilium plebis, the assembly of the plebs alone, which also met by tribes. As the patricians must have become in the later part of the republic a numerically insignificant body of nobles, and as the purely plebeian assembly attained in the end equal legislative capacity with the assemblies of the whole people, it was easy for anyone unacquainted with the niceties of the constitution to confuse the two bodies, and this probably accounts for the difficulties which modern historians find in interpreting the sources.
Of the concilium plebis we have already had occasion to speak in discussing the struggle between the orders. At first, it appears, the plebeians were in the habit of meeting by curiae for the election of tribunes and perhaps other business. At any rate according to Livy it was enacted, by a certain lex Publilia of 471 B.C., that henceforward the arrangement should be by tribes, and so it remained. It seems that this reform was of democratic nature because it diminished the influence of the patricians over the plebeian assembly. So long as the plebs had met by curiae the clients of the great patrician houses had been members of the concilium plebis and had been able sometimes to turn matters as their patrons desired; once the tribe was substituted for the curiae these landless persons were necessarily excluded and the plebs became more independent.
The history of the steps by which the concilium plebis attained legislative power is more than usually obscure. We hear quite definitely of three leges, all of which are represented as enacting, almost in identical words, that plebiscita, i.e. resolutions of the plebs alone, should have the force of law. The first is a lex Valeria Horatia, said to have been passed in 449 B.C. as a result of the fall of the decemvirs, the second a lex Publilia Philonis of 339, the third the lex Hortensia of 287. The relation of these laws to each other has been the subject of much conjecture. Strachan Davidson, for instance, thought that the lex Valeria Horatia required the consul to lay resolutions of the plebs before the senate and comitia and that the lex Publilia shortened the process by making the intervening consultation of the senate unnecessary.
But the evidence for these conjectures is slight, and many modern authorities think that the lex Hortensia, which is the only one mentioned by legal writers, alone had any real evidence. The idea of the two earlier statutes would then have arisen from the tendency of Roman historians, which we have already noticed, to read back comparatively recent events into the remote past. And here the legend might have arisen from the fact that both 449 and 339 were really moments at which democratic reforms were introduced. In any case there is no doubt that after the passing of the lex Hortensia, plebiscita, that is enactments passed by the plebs in the concilium plebis, an assembly in which the patricians had no place, were equally valid with leges, that is enactment passed by the whole populus, i.e. patricians and plebeians together, in the comitia centuriata or tributa. We thus have the strange result that in the later republic there were three bodies all equally capable of passing binding statutes, three sovereign legislatures, as we should call them, the comitia centuriata and tributa, consisting of the same people, though organised differently, and the concilium plebis, consisting almost entirely of the same people (for the patricians must by 287 have become a numerically insignificant minority), and meeting like the comitia tributa by tribes. We must also remember that the comitia curiata, an assembly of the whole populus, organised again on a different basis, though it had lost its political importance, still maintained a formal existence.
Which of these assemblies was summoned in any particular instance depended on the magistrate who wished to put a proposal before the people. The normal presidents of the comitia centuriata were the consuls, both for legislation and for elections; the comitia tributa could only be summoned by "patrician" (5) magistrates, usually the consuls or praetors, and the concilium plebis could only meet under the presidency of a magistrate of the plebs. Though the legislative competence of all the assemblies was equal, the concilium plebis became more and more the usual organ for the passing of laws in the later republic as its presidents, the tribunes, had more time for, and interest in, legislation than the consuls, who were frequently engaged in military duties. So far as elections were concerned the functions of the assemblies were more strictly differentiated, the magistrates with imperium and also the censors being elected in the centuriata, the lesser magistrates of the people (e.g. curule aediles and quaestors) by the comitia tributa, the tribunes and plebeian aediles by the concilium plebis. The centuriata was thus in practice confined usually to the most important elections, one reason for the comparative rarity of its meetings being the cumbrousness of the ceremonial involved. It was (in theory) the people in arms and could only meet with full military ceremonial outside the walls, usually in the Campus Martius. When it met a watch was placed on the Janiculan Hill (on the opposite side of the Tiber from the main part of the city and the Campus Martius) and a flag hoisted, the striking of which would be the signal that the enemy was approaching and that the consul should break up the meeting. This practice continued until well into the Empire, although the Tiber had for centuries ceased to be the boundary of Roman territory.
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(1) Comitium was properly the place where the assembly met, but the use of the singular is rare. Comitia (plural) means "an assembly".
(2) The origin of these three tribes is very doubtful. According to one view, now much disputed, they represented originally independent communities by the federation of which Rome came into existence. In any case they must not be confused with the "Servian" tribes, a later institution.
(3) The gens itself continued to be of importance. Originally in all probability only the patricians were members of gentes, but in later times there were certainly plebeian gentes as well. All members of a gens have a common name (e.g. in the case of Marcus Tullius Cicero, Tullius is the gentile name, Marcus being the praenomen or personal name and Cicero that of the particular family within the gens) and there is an organisation which conducts the common cult (sacra gentilicia). It seems to have been possible for the meeting of the gens to pass resolutions binding on its members, e.g. that they must not bear a certain praenomen which had been dishonoured.
(4) In 304, however, the censors confined landless citizens to the four city tribes.
(5) This term does not imply that the magistrate is necessarily himself a patrician; it is used to differentiate the officers who were strictly magistrates (of the populus), e.g. consuls, praetors and curule aediles, from those who were not strictly magistrates at all but only officers of the plebs, the tribunes and the plebeian aediles. Justinian (J. I. 2. 4), in distinguishing between leges and plebiscita, is somewhat misleading. He says: "A lex is an enactment passed by the populus on the motion of a senatorial magistrate (senatore magistratu interrogante), e.g. a consul; a plebiscitum is an enactment passed by the plebs on the motion of a plebeian magistrate, e.g. a tribune". This might lead the reader to suppose that tribunes were not members of the senate, whereas in fact they were senators.
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- The republican constitution
+ The republican constitution: Elements
+ The struggle between the orders
+ Characteristics and procedure of roman assemblies
+ The Senate
+ The consulate
+ The praetorship
+ The aedileship
+ The quaestorship
+ The censorship
+ The tribunate
+ The dictatorship
+ The minor magistrates
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 16 - 24.
