As already noticed, a Roman assembly can meet only when summoned by a magistrate, and it can transact only the business put before it by the magistrate. His proposal it must either accept or reject; there is no possibility of amendment, nor, in the actual assembly itself, of any discussion. When legislation was proposed, the magistrate had to draft the bill (rogatio) which he intended to put before the people, or cause it to be drafted for him, and this bill was, by constitutional practice, usually debated in the senate. By strict law, however, this was not necessary, and the consent or disapproval of the senate made no difference to the validity of a law once it was passed. It was the duty of the magistrate when the bill was drafted to publish it in an edict (proponere, promulgare) in which he also announced the date on which he would summon the assembly to vote on it.
The interval between promulgation and voting had, by a lex Caecilia Didia (98 B.C.), to be at least twenty-four days (trinundinum –three Roman weeks–), and this rule seems to have been followed in practice even before it was laid down by law. After promulgation the bill might be withdrawn but it could not be altered. During this interval the magistrate could, and usually did, hold informal public meetings for discussion (contiones) in which he spoke himself and might allow anyone else to speak for or against the bill. Sometimes the contio took place immediately before the assembly proper. Before the voting the bill was read out again and the presiding magistrate asked the people whether they agreed to it or not, velitis iubeatis, Quirites? The people then arranged themselves in their divisions (tribes or centuries) and voted separately. Originally each man gave his vote orally, but with the growth of bribery in the late republic an attempt was made to check it by introducing the secret ballot. Each man was given two tablets, one marked U.R. (uti rogas –"as you propose"–) and the other A. (antiquo –"I vote for the old state of things"); the former he cast into the urn if he wished to vote for the proposal, the latter if he rejected it.
Once accepted by the assembly a bill became law immediately, unless, of course, it contained provisions postponing its coming into force. Publication was not necessary for validity, though it was common; sometimes the law itself provided that its provisions should be put up in public "where they could be easily read from the ground" (unde de plano recte legi possit). Originally wooden tablets were used for this purpose, later bronze ones. An official copy of the law was in any case kept in the aerarium (treasury), but there appears to have been no adequate provision for filing and arrangement, for Cicero complains that only the skilled assistants could discover an enactment which it was desired to consult, and that they therefore in fact decided what was to be law.
The Romans had the principle, as must all communities with legislative bodies, that a previous enactment can always be repealed by a subsequent one, and also that where a subsequent enactment conflicts with a previous one it must be taken as repealing it to the extent of the inconsistency. The Roman constitution was also, like the British, a "flexible" one, that is to say there were not, as in the constitution of the United States of America, any fundamental constitutional rules which could not be abrogated by the ordinary legislature. Just as the British Parliament could repeal, if it thought fit, the most important constitutional laws, e.g. the Act of Settlement, and would use for that purpose precisely the same procedure as that which it uses for passing a Licensing Act, so the Roman comitia or concilium plebis could, by using its ordinary procedure, alter the Roman constitution, and indeed frequently did so. But this fact did not prevent assemblies from attempting to bind their successors by laying down rules as to legislation. Most famous of such rules is one contained in the XII Tables. Privilegia ne inroganto, "no law may be passed against an individual", i.e. laws are to lay down general rules; the procedure of legislation is not to be used to penalise a particular individual who has not broken some general rule of the community. An example of a privilegium would be an English "Act of Attainder", i.e. an Act of Parliament ordering a particular person to be executed, such as was used for instance by Henry VIII to get rid of his minister Thomas Cromwell.
A later enactment which similarly attempted to law down a rule for legislation was contained in the lex Caecilia Didia. This forbade proposals dealing with unrelated subjects to be included in the same bill (ne quid per saturam ferretur), the object of such "tacking" being, of course, to induce the people to accept an unpopular proposal because they could not reject it without at the same time rejecting the proposal which they welcomed.
Now it is clear that, given the principles that a later enactment repeals a former and that there is no difference between fundamental constitutional laws and others, such limitations cannot strictly bind future assemblies. If the assembly chooses to pass a bill which does contain unrelated matters, then the bill should, at any rate in strict logic, become law and the lex Caecilia Didia be deemed to be repealed in so far as it conflicts with the new law.
But logic is not always the deciding factor in law, and though it was sometimes argued by the Romans themselves that an act of the people must necessarily be valid even if it was contrary to some previously enacted constitutional principle, because of the implied repeal, the general view seems to have been that the assembly was not entirely free to enact absolutely whatever it liked. Cicero, though of course he is speaking as an advocate and his words must not therefore be construed too strictly, argues as if it were quite settled that no lex could take away an individual's liberty or citizenship, and in any case he tells us plaintly that a clause was added to every statute which expressly limited its effect to what was lawful. "Si quid ius non esset rogarier, eius ea lege nihilum rogatum." "If there be anything that it would be contrary to law to enact then no such enactment is contained in this statute."
A practical instance of the importance attaching to constitutional enactment concerning legislation occurred in the year 91 B.C. when the tribune Livius Drusus brought a bill before the assembly in which were contained proposals dealing with three unrelated matters, one a corn law, another dealing with the distribution of public land and a third depriving the equites of their exclusive control of the criminal jury court which were to be transferred to the senators. This last was the proposal which was politically the most important, and the others were, at any rate partly, introduced for the purpose of securing popular support for it. In spite of the opposition of the consul Philippus, who had finally to be arrested by Drusus's orders, the bill was passed and the senate at first rejected a proposal that it should declare the new law unconstitutional as being contrary to the lex Caecilia Didia. From that moment however the political tide turned against Drusus and, after further agitation by Philippus, the senate finally passed the resolution declaring Drusus's law invalid. Drusus himself was shortly afterwards murdered, and the equites remained in control of the jury courts until Sulla's legislation ten years later. The time was, of course, one of great political excitement almost amounting to revolution and cannot be taken as typical of the ordinary course of government at Rome, but the importance of enactments restricting legislation appears clearly. Had there been no provision against leges saturae it is certain that the senate would not have taken upon itself to declare a law passed by the people to be invalid.
Instances of this nature would of necessity be rare; during periods of settled government constitutional principles are not usually violated, and so there is no means of finding out what exactly would happen if someone violated them; in periods of political disturbance force may have more effect than law. It is thus difficult to frame any precise rule defining the effect of enactments such as the lex Caecilia Didia. Perhaps the rule which would have received most general assent at Rome is that such enactments can only be abrogated expressly, not by implication. We shall see that the senate was in one of its aspects the guardian of the constitution, and as in the case of Drusus, the final decision would often rest with it.
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- The republican constitution
+ The republican constitution: Elements
+ The struggle between the orders
+ The assemblies of the people
+ 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 24 - 27.
