Magistrates and Assemblies: A Study of Legislative Practice in Republican Rome 9525323013

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ROME 2001

MAGISTRATES AND ASSEMBLIES

A Study of Legislative Practice in Republican

Kaj Sandberg

Rome

ACTA INSTITUTI ROMANI FINLANDIAE VOI. 24

MAGISTRATES AND ASSEMBLIES

A Study of Legislative

Practice in Republican Rome by KAJ SANDBERG

ROME

2OOT

Editor of the Acta Instituti Romani Finlandiae Hnrrru SoI-tN Institutum Classicum, PL 4 (Vuorikatu 3 A) FIN-00014 Universitas Helsingiensis

Yol. 24 edited bY Kel SINoBERG

rsBN 952-5323-01-3 ISSN 0538-2270

@

Institutum Romanum Finlandiae Rome 2001

Gummerus KirjaPaino OY JyväskYlä 2001

CONTENTS ACKNOWLEDGEMENTS 1.

INTRODUCTION

1.1. 1.2. 1.3. 1.4. 1r4.1 .

)

3.

iii 1

THE THEME: POPULAR ASSEMBLIES, LEGISLATION AND LAWS

1

THE PROBLEM

6

EARLIER SCHOLARSHIP

8

SOURCES AND METHOD

12

t2

Introduction 1.4.2. The Sources and their Problems 1r4.3. Methodological Premises L4.4. Working with the Evidence: Strategies and Aids

20 24

ON THE CONSTITUTION

27

2.1, 2.2.

THE NATURE OF THE ROMAN CONSTITUTION

21

THE PRE-SULLAN CONSTITUTION IN ANCIENT WRITERS

2.2.1. 2.2.2.

Polybius Cicero

29 29 JJ

2.3.

THE CONSTITUTIONAL REFORMS OF SULLA

36

THE LEGISLATIVE ACTIVITY OF ROMAN MAGISTRATES: A CRITICAL SI,'RVEY OF THB EVIDENCE

13

4l

THE ATTRIBUTION OF REPUBLICAN STATUTES

4I

THE EVIDENCE OF TECHNICAL TERMINOLOGY 3.2.1. Technical Terminology in Latin and Greek Sources 3.2.2. The Material: A Survey A. Tribunician Legislation B. Non-Tribunician Legislation

45 45

3.3. . .3

64

3.1. 3.2.

THE EVIDENCE OF LAW TITLES Classical and Modern Designations of Roman Laws 3 .1 3.3.2. The Material: A Survey A. Tribunician Legislation B. Non-Tribunician Legislation

3.4. 3.5.

46 46 58

64 61 61

76

NON-TRIBUNICIAN LAWS OF THE PERIOD 367-88 BC: OTHER INDICATORS OF LEGISLATIVE ACTIVITY CONSIDERED

85

SYNOPSIS

94

4.

LEGISLATION IN THE PERIOD 367-88 SC: AN INTERPRETATION OF THE EVIDENCE

4.1. 4.2.

THE ROLE OF THE MAGISTRATES

THE USE OF THE LEGISLATIVE ASSE,MBLIES 4.2.I. Curiae and centuriae 4.2.2. Tribal Legislation: Concilium or comitia?

4.3.THEMECHANICSoFCOMITIALLEGISLATIoN:CONCLUSIONS

THEHISTORICALEvoLUTIoNoFCOMITIALLEGISLATION IN THE REPUBLIC

5.1.

INTRODUCTION

5.2.NON-TRIBUNICIANLE,GISLATIONINTHEEARLYREPUBLIC

5.3. 5.3.1. 5.3.2.

5.4. 5.4. .

EXTRA POMERIUM AND

1A'ry'R,4

THE TOPOGRAPHY OF COMITIAL LEGISLATION The pomerium and the Competence of the Assemblies The comitia centuriata" A Strictly Military Assembly? PLEBS THE ASCENDANCY OF THE TRIBUNES OF THE

Early Tribunician Legislation 5.4.2. The Decline of Consular Legislation 5.4.3. The Changing Role of the Tribal Assembly 5.5. AN UNE,ASY MODEL OF LEGISLATION?CONSIDERED THE BALANCE OF POLITICAL POWER

SU\4MARY APPENDIX I: LIST OF ROMAN MAGISTRATES ATTESTED AS PROMULGATORES OR ROGATORES LEGUM APPENDIX II: INVENTORY OF NOMINATIM REFERENCES TO ROMAN STATUTES IN CLASSICAL SOLRCES

ABBREVIATIONS, SOI.IRCES AND BIBLIOGRAPHY INDEX NOMINUM

97 105 105 105 111

tl4 t14 116

POMERIUM:

1

6.

97

119 119

r23

t32 r32 135

r37

r42 r45

148

t52 r74 209

ACKNOWLEDGEMENTS This book has been many (some might say too many) years in the making. Its origins date back in the fall of 1987, when I as a young undergraduate student attended a course on the political system of the Roman Republic at the Institutum Romanum Finlandiae, that is, the Finnish Institute

in Rome. Little did I know at the time that the work with my assignment, 'Plebiscitabefore 287

BC'-

which

Institute

-

I

was given by Prof. Unto Paananen (University of Oulu), the then director of the

would arouse questions that would absorb me for such an extended period of time.

Already in the following year, in the academic year of 1988-89,

I

had the opportunity to continue

my work with tribunician legislation in the research group that was formed at the Institute by its

director.rMany of the central ideas of the present study evolved during those years, in the beautiful and inspiring setting of Villa Lante, the Renaissance villa on the Gianicolo which is home to the Institute. I owe an immense debt of gratitude to Prof. Paananen, not only for introducing me into my specific field of research, but also for his many acute comments and continuous encouragement over the years. Of the other members of our team I wish to thank especially Dr. Jyri Vaahtera (University of Turku), who has offered me a lot of invaluable help. Prior to the release of this book my research on republican legislation has resulted in, besides several talks and seminar papers, two academic theses and a couple of published articles.2 During this whole process I have received cornments and criticism from a number of other people as well. Recording the names of these persons, it is appropriate to begin with my teachers at Äbo Akademi

University. First of all, I am greatly indebted to my supervisor, Prof. Max Engman, who not himself a classical scholar

-

has played a crucial role guiding my

-

though

work with this study. My

thanks are due also to Prof. Sune Jungar and Prof. Rolf Westman, both of whom have given me

helpful comments and advice. To continue with persons formally involved in the evaluation of my

earlier academic works,

I

mention with sincere gratitude Prof. Christer Bruun (University of

Toronto), Prof. Patrick Bruun (Abo Akademi), Prof. Thomas Lindkvist (University of Gothenburg) and Prof. Heikki Solin (University of Helsinki). Their criticism and suggestions have

contributed decisively to improve my argumentation. A preliminary version of the present study

of the Faculty of Arts of Abo Akademi, read by Prof. Timothy J. Cornell (University of Manchester) and Prof. Karl-Joachim Hölkeskamp (Universität zu Köln); I am most

was, at the request

' The work of the research group materialized in the volume SPQR : U. Paananen et al., Senatus populusque Romanus. Studies in Roman Republican Legislation (Acta Instituti Romani Finlandiae 13), Helsinki 1993.

En studie i romersk komitial legislation under republiken, Department of History, Äbo Akademi University 1991; Curiae, centuriae och tribus. Komitial legislation i republikens Rom före

2 Unpublished theses'. Populus plebesque.

Graccherna, ibid. 1997 . Publications: 'The concilium plebis as a Legislative Body during the Republic', SPQR (1993), 74-96 and'Tribunician and Non-Tribunician Legislation in Mid-Republican Rome', The Middle Republic (2000), 121140.

lll

_-fl

grateful for their extensive comments which helped me to finish my work.

In addition to my own teachers and referees, there is a host of other scholars who have helped me along the way. I am particularly indebted to Prof. Andrew W. Lintott (Worcester College, Oxford), who read many of my early drafts. His role has been decisive in the shaping of my thoughts; we actually disagree on a number of central issues, but his critical remarks have inspired me to sharpen my arguments. Drafts of earlier versions of this work, or parts thereof, have been read also by

Mr.

Jaakko Aronen (University of Helsinki), Prof. Charles

L. Babcock (Ohio State

University), Prof. Fergus Millar (Brasenose College, Oxford), Prof. Päivi Setälä (University of Helsinki), Prof. Eva Margareta Steinby (All Souls College, Oxford) and Prof. T. Peter Wiseman (University of Exeter), all of whom have given me feedback in some form or another. Dr. Mika Kajava (University of Helsinki) has provided a lot

of invaluable help in my work with the

epigraphic evidence, whereas Ms. Marjo Lehtinen and Ms. Marja Vierros (University of Helsinki)

kindly verified my observations in the papyrological material. I am most grateful to Mr. Janne Pölönen (University of Oulu), and also to Mr. Simo Örmä of the Institutum Romanum Finlandiae, who

-

especially in the final stage of my work with this study

-

have assisted me in various ways

in the libraries of Rome. I also thank Prof. Toivo Viljamaa for his permission to use cD-RoM discs and other computer facilities at his department at University of Turku.

It would be impossible, or at least impracticable, to specify in which particular received help from all the other persons

I

ways

I

have

must thank. The following list includes the names of

persons who, inter alia,have assisted me in finding material, scholars I have consulted on specific

points as well as people who

problems, notified me

of

have pointed out in seminars, informal discussion and the like new publications or provided useful remarks: Dr. Antti Arjava

-

(University of Helsinki), Prof. Michael H. Crawford (University College, London), Prof. Erich S. Gruen (University of California at Berkeley), Dr. Michel Humm (Paris), Prof. Maarit Kaimio (University of Helsinki), Prof. Robert C. Knapp (University of California at Berkeley), Prof. Elio Lo Cascio (Universitä degli studi Federico II, Napoli), Prof. Silvio Panciera (Universitä di Roma,

Prof. Ronald T. Ridley (University of Melbourne), Mr. Timo Saastamoinen (University of Turku), Prof. Olli Salomies (University of Helsinki), Mr. Pekka Tolonen (University of Turku), Mr. Kaius Tuori (University of Helsinki), Prof. Jtirgen von UngernSternberg (Universität Basel) and Dr. Alexander Yakobson (Hebrew University, Jerusalem). Mr. Ream Barclay BA (Abo Akademi) read my English and suggested several improvements; any extant errors are due to later alterations of the text. Last, but certainly not least, I thank my

La

Sapienza),

wife Pauliina Sandberg (University of Turku), herself a classical scholar, for helping me with the proofreading and for checking references and readings in the various text editions. Proceeding with the various institutions that have made my research possible, I owe the greatest debt to the Institutum Romanum Finlandiae Foundation, which has enabled me to spend altogether

IV

five happy years in Italy, on scholarships and as the assistant of the Finnish Institute. Being able to work in Rome, with its superb libraries (and good restaurants), has been indespensable. Moreover, I am most grateful to the Foundation

of the Acta Instituti Romani Finlandiae

It should

be duly recorded that

-

-

and to Prof. Solin in his capacity as the editor

also for its decision to publish my dissertation.

I have received financial support for my work also from the Ella

and Georg Ehrnrooth Foundation, the Reinhold Ekholm Foundation, the Waldemar von Frenckell

Foundation, the Thure Galldn Foundation, the Ingrid, Margit and Henrik Höijer Fund, the Research Institute of the Åbo Akademi Foundation, the Wihuri Foundation and the Oskar Öflund Foundation.

I

also thank the Finland-U.S. Educational Exchange Commission (FUSEEC) fbr the

Fulbright Grant which enabled me to spend the academic year of 1994-95 as a graduate student at University of California at Berkeley. Due to the heavy work load at the AHMA-group (Ancient History and Mediterranean Archaeoiogy) I had little time to pursue my own research, but my year there taught me skills that have been most useful in my work with this study.

Finally, I dedicate this work to the memory of my father, Sven-Erik Sandberg (1946-1999). Turku, July 2001

K.

S.

1. INTRODUCTION 1.1, THE THEME: POPULAR ASSEMBLIES, LEGISLATION AND LAWS The Popular Assemblies

The sovereignty of Ihe populus Romanus was, at least in theory, the very foundation of the republican constitution.lExactly

to what extent this notion was more than a mere ideological

conception is still a matter fbr debate, but it remains an indisputable fact that the popular vote was essential

to the operation of the Roman state. Only the people could confer magistracies

(and

bestow imperium), pass judgement on capital crimes and, indeed, make law.2 The popular will found expression in the decisions of the popular assemblies, which could be summoned only by

a

magistrate duly invested with the izrs cum populo agendi or the ius cum plebe agendi. There was

a basic distinction between Ihe contio, a mere meeting summoned for announcements or public debate, and the comitia, a voting assembly making a formal decision.3

The voting was carried out by units, that is, by groups of citizens. On the basis of the voting units

-

cLtriae, centuriae and tribus

-

it is possible to distinguish several popular assemblies: the

comitia curiata, the comitia centuriata and the comitia tributa.a The curiate assembly, reflecting a

primitive clan society, is ciearly the oldest of these assemblies. There is no doubt that it was in

existence already in the regal period. The origins three original tribes Tities, Ramnes and Luceres

-

ol

the curiae

-

which were subdivisions of the

may in fact predate the emergence of Rome

as

a political community.s By the Late Republic the curiate assembly had lost whatever political importance it had fbrmerly possessed, something which is reflected in the fact that the participation

of the people was no longer needed; the 30 curiae were each represented by a lictor whenever it

It remained formally throughout the Republic for the transaction of certain formalities; these included the passage of the lex curiata de imperio (which was necessary to obtain a curiate decision.6

I Cic. har. resp, ll populus Romanus, cuius

est summa potestas omnium rerum.

'?Cf. Cic. div. 2.74 and leg. 3.33.

I For the contio as opposed to comitia, see Messalla ap. Gell. 13 .16.2-3: manifestum est aliud esse 'cum populo agere', , aLiud 'contionem habere'. Nam 'cum populo agere' est rogare quid populum, quod suffragiis suis aut iubeat aut vetet, 'contionem' autem 'habere' est verbafacere ad populum sine ulla rogatione. For modern discussions, see G. W. Botsfbrd, The RomanAssemblies, New York 1909, 139-151 and L. R. Taylor, RomanVoting Assemblies, AnnArbor 1966, t5-33 a Laelius Felix ap. Gell. 15.27.5: Cum ex generibus hominum sufiiagiumferatur, 'curiata' comitia esse; cum ex censu et aetate, 'centuriata'; cum ex regionibus et locis, 'tributa'. .

5

Pliny the Elder's list (nat.3.69) of the ancient Latin peoples that shared in the sacrifices on the Alban Hill includes the names of some Roman curiae,but excludes Rome itself. Discussion in R. E. A. Palmer, The Archaic Community of the Romans, Cambridge 1970, 10 f . and 176-179. 6 Cic. Ieg. agr. 2.31. This practice had possibly evolved in the end of the third century BC, see Botsford 1909, 198 and

Taylor 1966, 4.

2

KAJ SANDBERG

confirmed the appointment of the chief magistrates) and some technicalities concerning adoptions and wills.T

The centuriate organization, which was based on a division of the citizens according to instituted by King Servius Tullius in the middle according to tradition property and age,

-

The I93 centuriae, which constituted the voting units in the comitia centuriata, were originally tactical field units in the citizen army. Still in the Late Republic the centuriate assembly was considered an army, which explains the curious fact that it could convene only outside the city hmtts (extra pomerium).e In the later part of the Republic the centuriate assembly was first and foremost an electoral body, the main function of which was to elect the

of the 6th century

BC.S

chief magistrates of the state.

The comitia tributa was based on the division of the citizenry into local tribes; also this division was ascribecl to Servius Tullius. The four tribus urbanae were situated in the city of Rome. The number of tribus rusticae, which were territories outside Rome, gradually increased as Roman power expanded in Latium and in the rest of the Apennine peninsula.ln24l BC, when the last tribes were established, the number of rural tribes amounted to 31 making the total number

of tribus

35.10

Also the conciliumplebis

-

the plebeian assembly which, according to tradition,

of 494 BC met by tribus,rt but its precise relationship to the comitia tributa is disputed. Usually it is regarded as a quite distinct body, but some scholars have suggested that it is, in fact, identical with the comitia tributa. This problem is of greatest relevance fbr the subject matter of this study and will, accordingly, be discussed at length in

was established after the first secessio

chapter 4.2.2.

Legislation and Laws

This is not the piace to enter a full-length discussion of the procedure in the popular assemblies, a topic on which a great deal has been written. But a short presentation of legislative procedure is

For the lex curieta, the nature of which is still a matter for debate, seep. 135. The history and functions of the curiate assembly are discussed in e.g. Botsford 1909, 168-200 ancl G. Nocera,Il potere dei comizi e i suoi limiti, Mllano 1940, 7

t-4. 8

See, in particular,

discussed

L\v.7.42.5-1.43.12

Beginnings of Rome, London e

and

Dion. Hal. ant. 4.14-4.75. 1. The origins of the centuriate organizationare 1.980, 144-211 and, more briefly, in T. J. Cornell, The

in R. Thomsen, King Servius Tullius, Copenhagen

See chapter 5.3.1.

-

New York 1995, 179-197.

Dion. Hal. ant. 4.14-4.15.1. The classic study of the local tribes is, of course, L. R. Taylor, The Voting Districts of the Roman Repubtic, Rome 1960. For more recent discussions of the origins of the tribal division, see Thomsen 1980, l\5-143 and Cornell lgg5, 173-179 and 179-197 passim. See also J. Cels Saint-Hilaire, La Röpublique des tribus, r0

Toulouse 1995, esp. 112 ff. 1r It should be noted that, according to tradition, the early plebeian assembly metby curiae until 471 sC, when the 'Popraior roupr&rrv rcalo0oiv, öni tqv tribunician elections were transferred ör< rrlq Qpa'cpranqg !rl$o$opiaq, ijv oi creation of the plebeian organization, see p. 132 Sui"errrcrlv (Dion. Hal. ant.9.41.2). For the frrst secessio and the

MAGISTRATES AND

ASSEMBLIES

3

certainly needed, as much of the argumentation in this inquiry is based on considerations about the implications of technical terminology. A brief discussion of the nature of comitial laws, as opposed

to other sources of law, is also deemed necessary. Technically, a legislative proposal was a question submitted to the people (populus or plebs) for its approval on the part of a magistrate.i2 This is ret'lected in its designation, rogatio, which is the Latin word for'question'; the technical term for proposing a law was, correspondingly, rogare. The rogatio legis is the actual passage of a law, but there was another key stage in the legislative procedure, which actually preceded the rogatio by several weeks.13 The promulgatio the whole legis, a term which denotes the publication of the bill, involved a public recitation of text, which was subsequently, presumably in the form of wooden tablets, posted up somewhere fiom u(t) d(e) p(lano) r(ecte) t(egi) p(ossi/), that is, somewhere where it could be read correctly ground level.ra The legislative proposal was discussed publicly in a series of contiones before it finally put to the vote. The arguments in favour and against the proposal were brought forth was

in prepared speeches known as, respectively, suasiones and clissuasiones legt,Lm.t5 Before the people entered voting Ihe contio was formally dissolved by the presiding magistrate

voting on the bill the citizens gave their votes orally until, in the ballot. The latter half of the second century BC, a series of leges tabellariae introduced the written voting also third of these, passed by the tribune C. Papirrus Carbo in 131, extended this method of only to the legislative assemblies.16 However, voting on a legislative proposal the citizens could or reject it, answering uti rogas ('as you ask') or antiquo ('I maintain things in their and transformed into a comitia.

approve

fbrmer state') to the magistrate.LT If approved by the popular assembly, Ihe rogatio was converted into a lex or a plebiscitum, term lex was on what specific type of gathering the assembly represented. originally the depending

in the reserved exclusiveiy fbr decisions of the populus, as opposed totheplebs. A decisionmade concilium plebis under the presidency

of a tribune of the plebs

was properly designated

'General Introduction', Roman Statutes For a detailed presentationof the legislative proceclure, see M. H. Crawforci. I, London 1996, esP.7''l3. 12

13

See

p. 78.

raDioCassius (42.32.3)speaksof oaviöeg: o'Avrcivrog ...r&.c,'c,e oaviöcgrrirvv6pcovxarcrcor]re. Fortheformula, seeFrg. Tarenr.,line14; LexMalac.,gg5land63;Lexrepet.,line65:Tab.Heracl.,linel6.SeealsoProb'litt'sing' 3.10: V.D.P.R.L.P. unde de plano recte legi possit' 15

Quint. inst. 2.4.33.

'6 See

p. 70.

63 sc (RRC413/1), struck by Voting scenes are sometimes fbund on the coins of the Late Republic. A denarius of is so accurate that it is representation The a cisla. L. Cassius Longinus, represents a voter in toga casting his vote into 43'l and 29211 RRC e.g. also See ' tabella. onthe possible to cliscern the lener 'V' (i.e. uti rogas) 17

KAJ SANDBERG

plebiscitum.ls As the latter category of comitial decisions gradually acquired the same legal fbrce as the former

-

unconditionally after the lex Hortensia of 281 s6

usually designated leges

-,re

both kinds of law were

in common parlance.2o In the Early Republic the comitial

needed the formal assent of the Senate, or perhaps only the patrician senators,

decisions

in order to enter in

force. This sanction, which was known as the patrum auctorita.s, later became a mere formality.2l Comitial statutes could regulate any matter. They could certainly constitute normative law, but

it

can be observed that the vast majority

of

leges and pLebiscita were essentially political

enactments dealing with more or less passing matters, such as declaration of war, confirmation of peace treaties, assignment of land, debt relief, administrative reforms, etc.22 Important concepts

that

will

be used in this study, concepts denoting categories of laws, are leges agrariae,Ieges de

ambitu, leges iudiciariee, leges de repetundis (or leges repetundarum) and leges sumptuariae. These kinds of statutes dealt with, respectively, distribution of public land, electoral corruption, the composition of the criminal courts, extortion and, finally, private consumption and display.23

While some comitial laws were concerned with criminal law and procedure, comparatively few dealt with matters pertaining to private law.2a As a matter of fact, the contribution of comitial legislation to the development of Roman Law was rather insignificant. The codification of Roman

Law, which was undertaken in the 6th century AD by order of the Emperor Justinian, is indeed based primarily on other sources of law than leges and plebiscita. Originally only the decisions of the popular assemblies were legally binding, but gradually there evolved other kinds of legal

rE

Ateius Capito ap. Gell. 10.20.6: 'PLebisscitum' ... est ... lex, quam plebes, non populus, accipit; Gaius iiusl. 1.3: Lex est, quod populus iubet atque constituit. Plebiscitum est, quod plebs iubet atque constituil; Fest. p. 372: Scita ptebei appellantur ea, quae pleps suo suffragio sine patribus iussit, plebeio magistralu rogante; Isid. orlg. 5.10-11: Lex est constilutio populi, qua maiores natu simul cum pLebibus aliquid sanrerunt. Scita sunt quae plebes tantum constituunt; Laelius Felix ap. GeIl. 15.27.4: Ita ne'leges'quidem proprie, sed'plebisscita'appellantur, quae tribunis plebis ferentibus accepta sunt, quibus rogationibus ante paticii non tenebantur, donec Q. Hortensius tiicrator eam legem tulit, ut eo iure, quod plebs statuisset, omnes Quirites tenereilur. te The exaequatio legibus is usually associated with the lex Hortensia of 287 sc, but also two earlier laws have been connected with this important constitutional reform, see p. 133. 20SeeGell. l0.20.g.However,intechnicallanguageitissometimespossibletodiscernaneflorttoobservethecorrect

terminology,seee.g. Frg.Atest.,linesl2f.'.antelegem,seiveilludpl(ebei)sc(itum)esr(seealsolinelg)andLexLat.

Bant., line 7: ex hace lege plebeive scito (ct. line 15). Botsford 1909, 463 and Taylor 1966, 138 note 3. 2tForthepalrumauctoritas,seeA.Biscardi,Bollettinodell'lstitutodidirittoromano43(1941),403-521;V.Mannino, L'auctoritas patrum, Milano 1979 and A. Giovannini, Museum Helveticum 42 (1985), 28-36. 22 For odas situationsgebundene Gesetz, and "das normative Gesetz", see Bleicken 19'75, 106-136 and, 137-177 respectively. Bleickens views are discussed by H. Grziwotz (Das Verfassungsverständnis der römischen Republik, Frankfurt a. M Bern 1985 ,211-215), who referring to the former category of laws speaks of "Mugnuntn.gesetze,

- (ibid., 171). or "Anla8gesetze" 2r

2a

-

-

See also Prisc. 2.75.

A recent count (F. P. Casavola,'Relazione introduttiva', Roma tra oligarchia e democrazia, Napoli 1989,23), focusing on the fourth and third centuries ac, yielded out of more than 150 laws only five comitial laws concerned - the lex Calpurnia and lex with private law: the lex Aquilia de damno (286?), the- lex Appuleia de sponsu (241), Silia de legis actione (both 204) and lex Cincia de donis et muneribus (204).

MAGISTRATES AND ASSEMBLIES

to comitial statutes the norms that at various points of time acquired the force of law. In addition jurists of the imperial period distinguished senatusconsulta, constitutiones principum, edicta and responsa prudentium.25 These must

be briefly presented here, though their history in

development of the law essentially belongs in the imperial period. A senatusconsultum was the Senate's formal answer to a magistrate asking

it for

the

advice on

technically lacked legal some specific matter. In the Republic this kind of senatorial resolutions were looked upon force, even if they in practice always were obeyed; by the Early Empire they The term is, in other as laws.26 A constitutlo was any legislative enactment by the Emperor' for various kinds of legal decisions, rulings and instructions that words, a generic designation

and subscriptiones) and originated in the imperial office: decreta, edicta, rescripta (epistulae edicendi had the right to issue mandata.2l In the republican period every magistrate with the las to take discharging their edicta, which were formal proclamations as to the steps they intended the courts at Rome' office. particularly important were the edicts of the praetors, who supervised the successor An edict was valid only fbr the term of office of the praetor issuing it, but as individual provisions' a customarily re-issued the edict, occasionally adding or removing some which was codified basically permanent set of norms evolved. This so-called ius honorarium' law.28 Finally, the responsa under Hadrian, played a vital formative function in the private judges and litigants asking them for legal prudentium denoted the answers of learned lawyers to normative'2e advice. These, insofar as they were unanimous, ultimately became

2s

plebiscitis, senatus consultis, constilutionibus Gaius inst. 1.2: constant autem iura populi Romani ex legibus, Dig' 1'1 '1 pr"' Ius autem civile est' quod ex pruclentium; responsis habent, qui edicendi ius eorum,

principum, edictis 'legibis,

plebis scitis, ,rrot6 consultis, decretis principum, auctoritate prudenlium venit'

idque legis vicem optinet, quamvis de ea Gaius inst. 1.4: Senatus consultum est, quod senatus iubet atque constituit; Later Roman Republlc' Oxford 1974' in the Watson' Law Making re fuerit quaesitum; modern discussions in e.g. A. Thereisagooddiscussion 1997,32-34. 21-30andO. F. Robinson,TheSourcesof Romanlaw, London-NewYork senate of Imperial Rome' The A. Talbert, R. J. see also in sherk, RDGE,4-19. For a list of extarlsenatusconsulta, FIM I, 237-300 (nos e.g. material, legal of in any collection founci be can ones princeron, most important

26

43g-45g;the

30-49).

vel edicto vel epistula constituit' Nec umquam Gaius inst. 1.5: Constitutio principis est, quod imperator decrelo per legem imperium accipiat' The imperial enactments dubitatum est, quin id legis ,ir)* opiineot, cum ipse imperator with this kincl of mattefs, see F Millar' Ifte are discussed in Robinson 1997,34-39:161 "the Emperor at work" good selection of constitutiones \n FIRA I, 395-468 is a There Emperor in the Roman World, Lnndor 1977,203-272.

27

(nos.67-98).

Sed amplissimum ius est in edictis duorum Gaius inst. 1.6: Ius autem edicendi habent magistrcilus populi Romani' praesicles earum habent Discussion in watson praetorum, urbani et peregrini, quorum in provinciis iurisrJictionem urbani, see FIM I, 335-389 (no' 65)' 1974,31-62: for a modern edition of the Edictum perpetuumpraetoris 2eGaius inst. 1.'l:Responsaprudentiumsuntsenlentiaeelopinioneseorum,quibuspermissumestiuracondere'Quorum legis vicem optinet; si vero dissentiunt, iudici licet quam omnium si in unum sentefii;e concurrunt, icl, quod ita sentiunt, in Watson 1974, 101-168 and Robinson velit sententiam sequi; idque rescripto divi Hadriani significatur- Discussion 28

1997

.

42-48.

1.2. THE PROBLEM Focusing on their legislative functions the present study is concerned with one sole aspect of the regular activities of the popular assemblies

-

the people was also, as we have seen, summoned to

elect magistrates and to pass verdicts on citizens accused of crime. However, the legislative

activity of the popular assemblies is in many respects the very key to the history of the Roman Republic. Most major public undertakings, such as wars, as well as important administrative and social reforms, were normally sanctioned by a popular vote. It is, therefore, justified to regard the progressive development of the Roman constitution as well as the gradual transfbrmation of the entire society during the Republic as a result of the activities of the popular assemblies

-

always,

of course, in conjunction with the magistrates, who alone were entitled to summon them. This very aspect, the formal interaction between the legislative assemblies and the magistrates, is the specific topic of this study. The popular assemblies were, it must be stressed, no independent actors in political life. The people could exert its many functions only on the initiative

of a magistrate, whether a curule

magistrate or a tribune of the plebs. Thus law making, which in theory was a popular prerogative,

in practice appears as a magisterial activity. Indeed, this study will to a large extent assume the fbrm of an analysis of the legislation of the magistrates. It will be considered whether it is possible to identify specific preferences in the legislative activity of the various categories of magistrates, that is, whether certain kinds of laws tend to be associated with certain magistracies. However, this is no end in itself; the aim is to relate the analysis to the operation of the popular assemblies and, ultimately, define their spheres of action. In other words, it

will be considered whether there

are discernible patterns in the use of the assemblies.

As far as legislation is concerned, it is commonly assumed that there was no distribution of competence between the various assemblies. A typical representative for this view is Ernst Meyer, who argued that it after the lex HortensizT was "völlig gleichgriltig, in welcher Versammlungsform ein Gesetz beschlossen wurdeu.rJochen Bleicken makes a similar assertion: n... nach der lex Hortensia [ist] die Vermischung der Aufgabenbereiche so schnell eingetreten, daB der Versuch einer Aufteilung der Kompetenzen auf die einzelnen Volksversammlungen nicht sinnvoll ist.,2 In

this work this kind of views will be challenged. As we know that it was strictly determined in which particular assembly the various magistrates should be elected, it is reasonable to suspect that also the passage of legislation was subject to rules or conventions of some kind.

may indeed be inappropriate to speak of ucompetence" in this context, as the Roman constitution always was in a constant process of development. New solutions and novel adaptions

It

Römischer Staat und Staatsgedanke2,Zirich D6r, D2. J. Bleicken, Lex publica, Berlin 1975, 101 f. Cf. F. P. Casavola, 'La legislazione comiziale e I'editto', Storia di Roma II.1 (1990), 524: "Non ö mai esistito un criterio di ripartizione di materie lra itre comizi legislativi." See also e.g. De

' E. Meyer,

2

Martino, Storia I, 391 and A. Schiller, Roman Law, New York 1978,23L

MAGISTRATES AND

ASSEMBLIES

7

were by no means uncommon features of political lif'e; in many cases they actually became rules that restricted exempla which were normative for posterity,3 There were, accordingly, hardly it legislative activity of the magistrates or the use of the assemblies. Nevertheless, I think that the

is possible to relate certain f'eatures of comitial legislation to the political and institutional development of the RePublic. The This study attempts to trace the development of comitial legislation during the Republic' of the legislation' emphasis will be put on the institutional mechanisms, rather than the contents and the The correct appreciation of the formal interaction between the legislative assemblies Rome, given presiding magistrates is crucial for our understanding of political iif'e rn republican the central role

of legisiation in Roman politics. The identity of the legislating body, along with

in which the law-makers put their bills to the vote and - in each case - the specific here'a nature of the statute, are the keys to the problems that will be considered I am well The present study will propose a number of new historical explanations. However, of evidence is, after all, aware that I am not likely to prove anything conclusively. As the body

the capacity

here are perf-ectly extremely limited, many other interpretations than those that will be off'ered republican legislation possible. But the main objective is to show that many widely held views on evidence' It is hoped that this will are problematic, or even incompatible with the testimony of the be recognized and stimulate a new discussion'

I

See

p. 28.

raisecl as to whether the legls lator andthe The term 'legislator' must be avoided in this study, where doubts will be legis rlgator is necessarily the same person'

a

1.3. EARLIER SCHOLARSHIP The topic of this work verges on a wide range of problems, many of which count among the most

all republican history: the Conf'lict of the Orders, the origin and development of the tribunate and the plebeian organization, the nature and evolution of the consulship, the development of the republican constitution, the popular assemblies etc. It is also, obviously, of

discussed themes in

some relevance for the development of Roman Law. Anything resembling a full-scale discussion

of earlier scholarship would, therefbre, inevitably be a survey of the entire scholarship on

the

Roman Republic. Therefore, what follows here does not purport to be much more than a series of

reflections on works of more or less relevance for the concerns of this study.

The first scholar who should be mentioned in a survey of this kind is, of course, Theodor Mommsen. The modern understanding of the political system of the Romans still largely rests on his work Römisches Staatsrecht I3-II3,

III

(1887-88), which was an ambitious attempt to describe

the Roman constitution as a unified system of positive law.l This work, which is a rare achievement by any standard, certainly deserves careful consideration, but it is somewhat disturbing to note that it has attained a position not very dissimilar to that which is due only to the primary sources.t Numerous subsequent surveys of the political system of the Roman Republic have appeared, remarkably many of them written in German. Mommsen's legalistic approach has been passed on as a legacy to many of his successors, but his static conception of the constitution has been largely abandoned. Instead, more emphasis has been put on the historical development.3

More recently there has been an increasing tendency, among scholars working with constitutional history, to appreciate the operation of the politicai system of Rome more in terms of the practice of politics than of rigid public law (ius pubLicum). A good example of this tendency, though it still

is an attempt to describe comprehensively the various elements in the constitution and their interaction, is Andrew Lintott's recent monograph The Constitution of the Roman Republic (1999). Focusing on legislation the present study does not deal specifically with problems concerning the tribunes of the plebs, but as these plebeian officials played an important part in this area of

public lif'e we should note, at least in passing, some of the central studies dedicated to the tribunate. Two older studies by Giovanni Niccolini, Il tribunato della plebe (1932) and I fasti dei

rThe first two volumes were published already in

1871 .The Staatsreclrt, reflecting Mommsen's own liberal values, is history, cf. T. E. J. Wiedemann, "/RS 78 (1988), 267: .... nineteenth-century of German document an interesring Staatsrechtwas rather a Beamtenrecht, a cocliflcation of the rights of state functionaries, reflecting the primary demand of German liberalism to control their rulers through a system of positive law, a'constitution'. 2 For a thorough, and rathercritical discussionof Mommsen'sstaatsrechl, see Bleicken I975,16-51. See also G. Crifö, 'A proposito della ristampa del Droit public romain di Mommsen', Studia et Documenta Hisloriae et luris 52 (1986),

485-491. See, fbr instance, E,. von Herzog, Geschichte und System der römischen Staatsverfassungl, Leipzig 1884; A. H. J. Greenidge, Roman Public Lfe , London 1901 ; F. De Martino, Storia della costituzione romana I-V, Napoli 195l-6'7 $2V, IgiZ-19i5); H. Siber, Römisches Verfassungsrecht in geschichtlicher Entwicklung,Lahr 1952; Meyer 1961 (first eclition Ziirich 1948); J. Bleicken, Die VerJassung der römischen Republikl , Paderborn 1995 (first edition 1975).

3

MAGISTRATES AND

tribuni della ptebe (1934) are still useful, even

ASSEMBLIES if

9

the latter has been iargely replaced by

Broughton, MRR. Important later studies include Jochen Bleicken's monograph Das Volkstribunat cler klassischen Repubtik (1955, 1968), focusing on the period 287-133 BC, L. S. Rocher, E/ tribunado de la ptebe en la Repubblica arcaia (1984), which deals with the tribunate before Ihe lex Hortensia, and Lukas Thommen's work Das Volkstribunat der späten römischen Republik (1989),

which is concerned with the post-Gracchan period. We may note also Giovanni Lobrano's monograph Il potere dei tribuni della plebe (1982). Modern studies of Roman laws and legislation, insofar as they are concerned with comrtial legislation,a usually deal with their contents, whether from a historical or a legal angle. A case in point is, of course, the Twelve Tables (lex xtt tabularum), a topic to which a host of studies have Also certain other individual laws keep attracting the attention of scholars, but more often the focus is on some specific law category. Prominent themes are agrarian laws, debt legislation and, leges de provocatione; much of the discussion concerning these laws has been

been cledicated.5

with their historicity.6 We may note that there is also a legalistic tradition, the best known exponent of which is Jochen Bleicken in his work Lex publica (1975). However, the institutional mechanisms involved in comitial legislation have attracted oniy incidental attention. In fäct, one easily gets the impression that scholars consider the whole issue to have been

concerned

deftnitively settied already by Mommsen. This is not to say that the legislative bodies of republican Rome have not recerved their due share of scholarly attention. Indeed, the 20th century has seen

flow of studies on the popular assemblies of the republican period, but it can be observed largely at the expense ofthe constitutional that they normally have focused on internal procedure a steady

setting.

A large number of

to the Roman assemblies

-

-

specialized articles,T as well as many important monographs devoted

notably

Lily

Ross Taylor's Roman Voting Assemblies (1966) and E.

Stuart Staveley's Greek and Roman Voting and Elections (1972)

-,

deal with voting methods and

As we have seen, the irnpact of cornitial legislation on the development 01'Roman Law was rather insignificant. Therefore stuclies on Roman private law are primarily concerned with other sources of law than leges and plebiscita. For instance, in Alan Watson's work on law making in the later Roman Republic there is only a brief discussion of comitial legislation (.197 4, 6-20). 5 See, for instance, the many items included in tl're bibliography of Flach, GFRR, 303-3'70. 6 A selecrion of studies on agrarian legislation: Niese 1888; Maschke 1906; Vancura 1924; Tibileni 1948; Id. 1949; 1981b; Gabba 1964; D'Ippolito 1975; Basile 1978; Gagd 1979; Triebel 1980; Capanelli 1981; Santilli 1981; Serrao 1909; Klingmiiller Debt legislation: 1991. Fors6n and Flach 1990 1986; Bringmann 1985; Dal Cason 1985; Bringmann Di Lella 19g4; Fascione 1988 and Savunen 1993 . For provocatio and leges de provocatione, see p. 103 with note 2"7 .

a

I U. Hall, ,Voting Procedure in

Ron'ran Assemblies',

Historia 13,267-306 remains one of the fundamental works on

procedure we may the whole subject. Among more recent articles focusing on voting methods and other aspects of the Martini 19841979b: Develin 1978a; 1973;Develin norethe fbllowing: Staveley 1969; Linderski aKarninska-Linderski g5; Grieve 1985a; Grieve 1987; Troiani 1987; Vaahtera 1990; Warrior 1990; Luisi 1993; Vaahtera 1993b and Hall i 998.

10

KAJ SANDBERG

other practical aspects of the operation of the popular assemblies.s Among the relatively few exceptions to this tendency we may note George

-

Willis Botsford's

The Roman Assemblies (1909)

which also attempts to trace the historical evolution of the assemblies

-

and Guglielmo Nocera's

Il potere dei comizi e i suoi limiti (1940), which to my knowledge is the only major work on the Roman assemblies fbcusing on constitutional aspects. Studies of the practice of politics in the Roman Republic have usually been concerned with the magistrates; questions such as political succession, consular elections and patterns in office holding have received considerable attention.e Therefbre, insofar as the popular assemblies have been dealt

with, the focus has been on elections and the electoral comitia centuriata; electoral bribery is a particularly fashionable theme.t0 The relative lack of interest in the legislative assemblies as political institutions in their own right clearly reflects Gelzerian notions of Roman politics. Since 1912, when Matthias Gelzer published his Habilitationsschrifi Die l"lobilitat der römischen Republik, it has been more or less a dogma that the structures of political power in republican Rome are not found in the political institutions, but in the fabric of social bonds traversing Roman

society. Particularly Ihe clientelae have been seen as the fundamental determinants of the entire

political process. As the voting behaviour of the people was ultimately determined by the dependence of the individual citizens on the leading families of Rome, the role of the popular assemblies has been perceived as largely nominal. Roman politics, according to this interpretation

of the nature of political power, was essentially a contest between various factiones within the ruling aristocracy, the nobilita.r. Indeed, studies of Roman politics in the republican period have usually assumed the fbrm of prosopographical research, focusing on political alliances and other groupings within lhe nobilitas.

A

good exampie is the work of Howard

H. Scullard, Roman

Politics,220-150 BC (1951) which, despite its title, is essentially a prosopographical study. The same is true of Filippo Cassola's I gruppi politici romani nel Iil secolo a.C. (1962) as well as of Erich Gruen's studies Roman Politics and the Criminal Courts, 149-78 rc (1968) and The Last Generation of the Roman Republic (1974). The prosopographical method is still usually regarded as indispensable among scholars working on Roman politics, but the role of the masses has been

much re-appreciated in recent years. Fergus Millar in particular, but also John North and others,

Another prominent therne is the late third century gC reform of the centuriate assembly; see, for lnstance, Staveley 1953; Nicholls 1956; Taylor 1957; Sumner 1962; Staveley 1962; Develin 1978e; Grieve 1985b (with extensive bibliography, 278 note 1); Yakobson 1993. e Oifice-holding and political succession: Badian 1959, 81-89; Develin 1979a; Hopkins & Burton 1983,31-119; Badian 1,990a,37 l-413; Evans 1990, 65-7I; Broughton 1991 . Elections and electioneering: Rilinger 1976; Develin 1978d, 484' 488; Id. 1985, esp. 89-174; Evans 1991, 111-136; Yakobson 1992,32-52 and Id. 1999. r0 For the centuriate assembly, see in particular the recent contributions of Alexander Yakobson (1992,32-52: 1993, 139-155 and his monograph of 1999). On electoral corruption, see e.g. Linderski 1985, 87-94; Deniaux 1987,2'19-3041, Lintott 1990, 1-16 and Jehne 1995a, 51-76. 8

MAGISTRATES AND

ASSEMBLIES

11

have stressed the importance of the ordinary citizens, and the operation of the institutions, in the

political system of the Republic.l' Insofar as constitutional aspects have been considered, the popular assemblies have almost invariably been treated collectively

-

indeed, quite in accordance with a tradition going back as far

to Polybius, the author of the oldest surviving account of the Roman constitution.r2 That is, the popular element in the political system has been considered in relation to the other main as

elements in the Roman political system, the Senate and the magistrates. For instance Nocera. using

concepts such as "attivitä comiziale" and "atti comiziali", gives little thought to the curious coexistency of several assembiies. Jochen Bleicken, discussing the comitial legislation of the last centuries of the Republic in his tex publica (1975), adopts a similar approach.13 The interaction, on an institutional level, between the legislative assemblies and the magistrates

is an aspect that has been largely neglected by scholars. As far as I know, the present study represents the first systematic attempt to consider the evolution of the mechanics of comitial legislation in relation to the institutional and political development of the Republic.

rr See,

in particular, the tbllowing studies of F. Millar: 'The Political Character of the Classical Roman Republic, 200(1984), 1-19; 'Politics, Persuasion, and the People before the Social War (150-90 ac)', "/RS 76 (1986), 1-11; Millar 1989, 138,150; 'Political Power in Mid-Republican Rome. Curia or Comitium?', "rRS79 (1989), 138-150; 'Popular Politics at Rome in the Late Republic', Leaders and Masses in the Roman World,Leiden- New York 1995b, 91-113 and The Crowdin Ronte in the Late Republic, Ann Arbor 1998. See also G. E. M. de Ste. Croix, The Class Struggle in the Ancient Greek World, London 1981 (which, despite its title, also deals with Rome); L. Perelli, 1/ movimento popolare nell'ultimo secolo della repubblicc, Torino 1982:P. A. Brunt, The Fall of the Roman Republik and Retated Essays , Oxford 1988, 382-412, 443-502; J. North, 'Democratic Politics in Republican Rome', Past & Present 126 (1990a),3-21: Id.,'Politics and Aristocracy in the Roman Republic', Classical Philology 85 (1990b), 277-287. However, it should be observed that Gelzer still has his def'enders, see e.g. L. A. Burckhardt,'The Political Elite of theRomanRepublic', Historia39(1990),'77-99.For aconvenientsurveyof therecentdiscussionabouttheroleof the people, see M. Jehne, 'Zur Debatte um die Rolle des Volkes in der rörnischen Politik', Id. (Hrsg.), Demokratie in Rom?, Stuttgart 1995b, 1-9. See also E. Gabba, 'Democrazia a Rona', Athenaeum 85 (1997), 266-271. 151 BC', "/RS 74

r2

See chapter 2.2.1. Ir Bleicken 1975, 101: "In den folgenden Uberlegungen zur Entwicklung der Kompetenz der Volksversammlung nach d.J. 28'7 wird kein Unterschied zwischen den verschiedenen Arten der Versamrnlungen gemacht ... . Centuriatcomitien und plebejische bzw. patricisch plebejische Tributcomitien ... werden also firr die Darstellung als Einheit behandelt."

L

1.4. SOURCES AND METHOD 1

.4.1. Introduction

There are basically two ways in which we can hope to gain new insights into the past; either by discovering new sources or by applying new methods of analysis examining the known body of

will be cited, but it will be argued that there are severe flaws in many of the conventional approaches to Roman politics. It will be shown that many comrnon views of the legislation of the republican period rest on an incomplete, to some

evidence. In this study no new or overlooked sources

degree even deficient, picture of the practice of politics at Rome. This, in my view, is largely due

to a general lailure among scholars to keep the evidence in the centre of the attention and to the fact that the sources, to a great extent, have been (and are being) used indiscriminately. I propose to demonstrate that there is a surprisingly large number of altogether untbunded notions in circulation, and that current views also have been heavily influenced by data that may well be altogether irrelevant.

I

A careful and systematic distinction between original

and derivative information is the very

foundation of modern historical research, this realization has guided historians in their work ever since the days of Niebuhr. However, it must always be remembered that historical research itself produces new infbrmation that, insofar as it is not firmly based on the authority of the primary sources, should not be used without utmost caution. This is a problem affecting the historian's

work that is not always duly recognized. Much of what historians have accomplished during the last two centuries undoubtedly represents progress, in terms of an increasing amount of verified data, but we should always be aware that scholars also constantly contribute to alienate us from the actual evtdence. Ideally, historical argumentation should rest exclusively on the evidence, but few (if any) historians can in practice build their cases entirely on primary sources. Regardless of how

limited in scope an inquiry is, there are usually so many side-tracks and subordinate problems involved, that the sheer eflbrt required to consider them all in the light of the actual evidence would be excessive. Therefbre scholars must, at least to some extent, rely on earlier scholarship. Of course, every historian is supposed to review critically earlier studies, but this does not preclude errors and unfounded claims from entering the pool of historical data upon which our picture of the past rests. Modern conjecture is not always recognized as such, but may be confused with facts. Moreover, having been repeated often enough, these may eventually be taken for wellestablished facts.

I am suggesting

here that ofacts" of this kind abound

in scholarship on themes

of relevance fbr the present study.

It is my impression that the scholarly discussion of republican legislation, and of many other aspects of Roman public life, sometimes is out of touch with the evidence. That is, the testimony of the primary sources often seems to matter considerably less than an accumulating body of rCf.

Sandberg 2000,122

ff. and 130 iT.

MAGISTRATES AND

ASSEMBLIES

13

scholarly doctrine. Therefbre much of this study will be dedicated to a re-examination of some of the fundaments upon which modern models and interpretations rest. It will be examined whether the standard views of the mechanics of comitial legislation can withstand a close scrutiny of the evidence. This is, of course, no trivial pursuit, as the work with the sources entails a host of rntricate difliculties.

Due to the peculiar nature of the evidence much of the republican period is very difficult to grasp. As we will see, scholars largely rely on literary sources sometimes separated by centuries

fiom the events they recount. Inquiries into republican history must, therefbre, be firmly based on carefully defined methodological premises. Nevertheiess, it can be observed that methodological discussions in modern studies often are remarkably limited in scope. Too often they are concerned

mainly with the general anendibility of the sources, as though there were no other problems confronting the scholar. To what extent the annalistic tradition is credible is, it cannot be denied, a question

of fundamental importance

-

but we should not forget that the establishment of reliable

first step in the analysis of the sources. The second step is that of determining their relevance fbr the specific problem under consideration. This stage of the work with the evidence has, I dare say, been largely neglected with far reaching consequences tbr the data is only the

-

interpretation of the historical development of republican Rome. Indeed, it will be argued here that our perception of Roman comitial legislation and its evolution has been seriously blurred by a general taiiure to keep disparate data apart from each other.

Much of this chapter will be dedicated to an assessment of the value of the evidence. This discussion will also be concerned with sources that are generally considered reliable.

]L4.2. The Sources and their Problems

It

need be stressed at the very outset

of this survey, that our knowiedge of republican legislation is hopelessly incomplete, in both quantitative and qualitative terms. As we already have seen, the Corpus iuris civilis is based primarily on other kinds of legal sources than leges and plebiscita particularly edicts and the writings of the jurists of the imperial period. A count of comitiai statutes mentioned

in the Digesta yields only about 35 laws, most of which belong in the last

decades of the Republic or the Early Imperial period. There is, of course, no way of knowing how

many laws were passed by the popular assemblies during the Republic, but there is no doubt that

only a tiny ftaction of these are mentioned or (which is more often the case) alluded to in classical sources. There are long periods for which very little legislation is documented, and sometimes there are intervals of several years between the passage of two known laws. What is even worse, the laws that do emerge from our sources tend to be very elusive, to say the least. The evidence

is, in other words, both scarce and inadequate, but this state of affairs cloes not reflect negligence

T4

KAJ SANDBERG

or deficient administrative routines on the part of the Roman state authorities during the republican era. The legislation did generate a rich documentary material, which was carefully preserved.

As far as the later Republic is concerned, the archival practice is known in some detail.2 The decisions of the popular assemblies, i.e. the leges and the plebiscitd, were incised in bronze tablets and deposited in the Aerarium (the state treasury) in the temple of Saturn in the Forum. There are

It is also attested in the epigraphic material; a partially preserved law from the Sullan period (81 nc), the so-called Lex Cornelia de xx quaestoribus, refers to its own storing place ad aedem Saturni.a But laws were also stored elsewhere. It is known that the Atrium Libertatis, a building containing the offices of the censors (situated inside the Porta Fontinalis), was used as a repository fbr laws and other public documents.5 We also hear of documents, including laws, on the Capitol.6 Some of these documents were possibly preserved in the Atrium Publicum, a building that some modern several references to this practice in the literature.3

topographers have identified as the

röv ayopavöpov rapreiov mentioned by Polybius.T

Also

temples sometimes hosted laws and other documents; this is attested at least fbr the temple of Diana on the Aventine.s

It is also held that pubtic records, possibly including laws, were filed in

the Tabularium, which was erected in 78 sc.e Particularly important laws were posted in public;

fbr instance, Ihe lex

nt

tubularul?? was displayed in the Forum.r0

I For archival practice at Rome

and the publication of leges and pLebiscita, see Th. Mommsen, 'Sui modi usati da' rornani nel conservare e pubblicare le leggi e senatus consulti', Annali dell'lnstituto di Corrispondenza Archeologica 30 (1858), l8l-212 F. von Schwind, Zur frage der Publikation im römischen Recht, Mtnchen 1940, 26-44; G. Tibiletti, Pubblicazione delle leggi'; C. Williamson, Law-Making in the Comitia of Diz. epigr. IV .2 (1946),707-"110 s.v. 'Lex Disseminating, Recording and Retrieving Laws and Plebiscites, Diss. Drafiing and The Processes of Republican Rome. London 1984 and Ead. 'The Display of Law and Archival Practice in Rome', Acta colloquii epigraphici Latini, Helsinki, 239-251. Short discussions are included also in Rotondi, LPPR, 167 -174: Botsford 1909, 461-465 and Nocera 1940, 187-190. Why legal documents normally were incised in bronze (and no other material) and how they were consulted are questions that are discussed in C. Williamson, 'Monuments of Bronze. Roman Legal Documents on Bronze Tablets', Classical Antiquity 6 (1987), 160-183. See also P. Culham, 'Archives and Alternatives in Republican Rome', Classical Philology 84 (1989), 100-115. 3 Cic. leg. 3.ll Qui agent ... promulgata proposita in aerario co(nd)ita \h)a\be)nto; Schol. Bob. p. 106: leges in aerario condebantur; Suet. 1al. 28.3: ... Iege iam in aes incisa et in aerarium condita...; Serv. auct. Aen. 8.322: acceptoe a popuLo leges in aerario claudebantur, ... ut hodieque aerarium Saturni dicitur. Cf. Serv. Georg. 2.502: PopuLi tabularia ubi actus publici continentur. Signtficat autem templum Saturni, reponebantur acta, quae susceptis liberis faciebant parentes. a Lex Corn. quaest., col. ii, line 40. 5

Cato ap. Fest. p. 277 s.v.'probrum'; Liv. 43.16.13; Gran. Lic.28.36.

6

See

in rluo et aerarium fuerat

et

e.g. Suet. Vesp. 8.5. Cf. p. 16 note 15. Ashby, 57 and Richardson, Dictionary,42 s.v.'Atrium publicum'. Po|.3.26.1 f. Platner 8 Dion. HaI. ant. 4.26.4- f . and 10.32.4. e Ashby, 506-508; Richardson, Dictionary,3T6 f. s.v. 'Tabularium'. Platner

1

-

3.57.10'. leges decemvirales, quibus tabulis duodecim est nomen, in aes incisas in publico proposuerunl;Dion. lIal. ant. 10.57.7: ror)g v6pouq, orq.larg 1a.lrcaiq öy1apd(av'ceq autoiq öQe{nq ö0eoav öv &yopQ. See also Diodor. 12.26.1 and Zonar. 7.18. r0

Liv.

MAGISTRATES AND

ASSEMBLIES

15

Epigraphically preserved laws conform to a more or less standardised layout.LrThe law is headed by the index legis, being the title or name of the law. Its constituent parts are the wotd lex, in conjunction with the gentiticium (the family name) of lhe rogator legis as an attribute, followed by a short clause, usually beginning with the preposition de, specifying the contents of the law

-

for instance lex Antonia de Termessibus. The index is followed by a prescript, the praescriptio legis, giving the specific circumstances for the passage of the statute. First of all it identifies the rogator legis,by name as well as by title, and specifies both time and place for the passage of the law. The prescript also names the voting unit that, after the administration of the lot, was summoned to give its vote first. In a tribal assembly this unit was called principium, in the centuriate assembly it was designated centuria praerogativa. In this connection the prescript also gives the name of the citizen who commenced the voting.r2 The prescript thus contains all the information needed for the problems considered in this study: the name of

lh:e

rogator legis as weil

of the capacity in which he proposed the bill. As for the identity of the legislating body, it is never explicitly specified by the current names of the various assemblies, but it appears fromthe reference to the voting unitthat initiated the voting. Also the place of the assembly may as an indication

25 v7s havg if the beginning of the prescript is lost or damaged already seen, there were certain restrictions as to where the centuriate assembly could convene. The law text itself, forming a series of clauses in the imperative, is designated rogatio

be a crucial piece of information

("question"), reflecting the very essence of Roman legislation.t3 The last part of the law is the sanctio, fbrmally ending the whole text. A Roman statute can run to a considerable length, which is evident from the two best preserved laws, incised on either side of lhe Tabula Bembina: the Lex repetundarumof 123 BC (90 lines survive) and the Lex agraria of 111 BC (105 surviving lines).

Moreover, these lines contain a lot of text; for instance, the letters in the fbrmer text are only 0.005-0.006 m high.ra

Ir For laws as epigraphic