inroganto) Ref. 058; and it was laid down that no capital sentence could be issued except by ‘the greatest of the Comitia’ (nisi per maximum comitiatum) Ref. 059; that is, by the Assembly of the Centuries, or Exercitus, gathered in the Campus Martius.
An important aspect of the Public Law of the Twelve Tables is the guarantee of the right of free association, provided that it have no illegal intent. While nocturnal gatherings (coetus nocturni) are prohibited Ref. 060, the formation of gilds (collegia) is encouraged. Such gilds were to require no special permit for their existence, and the rules which they framed for their own government were to be valid, provided that these rules were no infringement of public law Ref. 061.
Lastly, the most typical and important utterance of the Tables is to be found in the injunction that ‘the last command of the People should be final Ref. 062.’ It is an utterance which shows how little the Decemvirs regarded their own work as final, how little they were affected by the Greek idea of the unalterability of a Code, of a Code forming a perpetual background of a Constitution—in fact, by the idea of a fixed or written Constitution at all. It is an utterance that expresses the belief that law is essentially a matter of growth, and prepares us for the fact that Rome saw no further scheme of successful codification until nearly a thousand years had passed.
§ 10.: Future Progress of Law. Legislation and Interpretation; the Legislative Assemblies.
For the future the progress of law was to depend on the two processes of legislation and interpretation. The legislative assemblies were those of the Populus and the Plebs. The Populus, which comprised the whole of the Roman people, Patricians as well as Plebeians, met, either by centuries, as the Comitia Centuriata, or by tribes, as the Comitia Tributa, under the presidency of a Consul or Praetor.
The Comitia Centuriata was an assembly that had grown out of the army-organization of the whole Roman people. It was the whole Host or Exercitus expressing its political will. It was for this reason that the military unit (the centuria) was the voting unit. And this was also the original reason why we find in this assembly the division into classes, or aggregates of citizens grouped together on the basis of a particular property qualification; for the different types of military service were originally determined by degrees of wealth. But the element of wealth in this assembly, which is exhibited by the division into classes, soon gained a political significance. The voting power of the classes differed considerably. That of the wealthy was greater than that of the middle-class, and that of the middle-class far in excess of that of the poor. Thus the Comitia Centuriata was always assumed to have something of an aristocratic character; and the change which its constitution underwent during the Republic was at least partly directed by an effort to modify this character. The scheme recognized five classes, the census of each being (in terms of the later assessment of the historical period) respectively 100,000, 75,000, 50,000, 25,000, and 11,000 (or 12,500) asses. The first class contained eighty centuries, the second, third, and fourth, twenty each; the fifth, thirty. Thus the centuries of the first-class were almost equal to those of the four other classes put together. The weight of aristocratic influence may be still more fully realized if we remember that the corps of Roman Knights (centuriae equitum equo publico) formed eighteen centuries in this assembly, and that the mass of citizens whose property fell below the minimum census were grouped in a single century. The collective vote of the first class and the knights was represented by ninety-eight centuries; the collective vote of the whole of the rest of the community (including four or five centuries of certain professional corporations connected with the army, such as the Fabri) was represented by ninety-five or ninety-six centuries Ref. 063. Thus the upper classes in the community possessed more than half the votes in this assembly.
A modification in the structure of the Comitia Centuriata was subsequently effected, which had the result of giving a more equal distribution of votes. No precise date can be assigned for the change; but it has been thought not to be earlier than 241 b. c., the year in which the number of the tribes was raised to thirty-five Ref. 064. The principle of the new arrangement was that the tribe was made the basis of the voting power of the classes. There is considerable divergence of opinion as to the method in which the centuries were distributed over the tribes; but, according to the more usually accepted view which has been held by scholars from the seventeenth century onwards Ref. 065, the five classes were distributed over all the tribes in such a manner that there were two centuries of each class—one century of seniores and one of juniores—in a single tribe. Each class would thus have two votes in each tribe and seventy votes in all. The total number of centuries belonging to the five classes would be 350, of which the first class would possess but seventy votes; or, if we add the other centuries of knights (18), of corporate bodies such as the Fabri (4), and of Proletarii (1), we find that the first class and the knights commanded but eighty-eight votes out of a total of 373 Ref. 066. This system, which lessened the influence of the wealthier classes, was temporarily abolished by Sulla in 88 b. c. Ref. 067; but it was soon restored, and there is every reason to suppose that it survived the Republic and formed the basis of the arrangement of the Comitia Centuriata under the Principate Ref. 068. Although the Comitia was organized on this tribal basis for the distribution of voting power, the voting unit was still the century and not the tribe. The seventy centuries of each class voted in turn; the decision of each century was determined by the majority of the votes of its individual members; and the majority of the centuries determined the decision of the assembly.
The Comitia Centuriata, although of the utmost importance in the structure of the Roman Constitution as the body that elected the magistrates with Imperium and the censors, that exercised capital jurisdiction and declared war, ceased to be employed in the period of the developed Republic as an ordinary legislative assembly. It was difficult to summon and unwieldy in its structure, and its position as a legislative body came to be usurped by the two assemblies of the tribes. Yet, as we shall see Ref. 069, it may have been held that legislative acts, which affected the fundamental principles of the Constitution, should be submitted to the centuries.
The Comitia Tributa Populi had probably been instituted in imitation of the Plebeian Assembly of the Tribes. It was found convenient that the Populus should meet in this way as well as the Plebs; and the Tribus—the voting unit which had already been employed for assemblies of the Plebs—was used for assemblies of the whole people. The Tribus was always a division of the territory of the Roman State in Italy, and the tribes grew in number as this territory increased until by the year 241 b. c. they had reached their final total of thirty-five. It is generally believed that originally only holders of land were registered as members of a tribe Ref. 070; but there is no sufficient evidence for this view, and it seems safer to conclude that, while every holder of land was registered in the tribe in which his allotment lay, every landless man was registered in the tribe in which he had his domicile. At a later period registration became more arbitrary, and had little or nothing to do with the residence of the person registered. The censor enrolled individuals in tribes at his pleasure; usually he entered a man in the tribe to which his father had belonged; but he might, if he willed, transfer him from one tribe to another (tribu movere).
In an assembly organized by tribes (tributim) the vote of the majority of the members of a particular tribe determined the decision of that tribe, and the vote of a majority of the tribes the decision of the assembly. The Comitia Tributa Populi must have been instituted later than 471 b. c., which is the traditional date at which the Plebs began to meet by tribes Ref. 071; and it may have been in existence some twenty years later, at the date of the formation of the Twelve Tables Ref. 072. The first evidence for it as a legislative assembly belongs to the year 357 b. c. Ref. 073. In the later Republican period it was probably quite the most active of the legislative assemblies of the whole people.
The Comitia Curiata, the oldest of all the Roman assemblies, whose structure was based on the ancient Curiae or Parishes of
