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The number which came out first decided the cen- CHAP. tury which was to vote first, and so throughout. The century to which the lot fell to vote first was called centuria prærogativa, the second secundo vocata, and so on. This prevented confusion. Here the proceedings might be stopped by the veto of the tribunes, or the adverse interpretation of the auspices. "Si nihil sinistri obnunciabatur," the presiding magistrate then put the question, rogabat populum, in the usual form, Velitis, jubeatis, Quirites, Rogatio. &c. The centuries then departed to the pontes, or poll-booths, erected in the Campus Martius. "Hi nihil aliud erant," says Heineccius, "quam angustæ quædam substructiones, opere subitaneo, e tabulatis solo editis adornatæ, per quas iis, qui suffragia ferrent viritim esset transeundum'." The pons con- Pontes. sisted of a narrow passage along which the voters could only pass in a line, one behind another. At the entrance stood the distributor, who gave to each voter as he came up two tallies, on one of which was inscribed the letter A. i.e. pro antiqua Tallies. lege; upon the other the letters U. R. i.e. uti rogas; the voters passed on, and at the other end stood the custodes, poll-clerks, who received from the voter whichever tally he chose to deliver. This done, the voter stepped down into an enclosure, called the cancellus, where all were confined till the votes of the whole century were given. The Suffragiovoting being over, the next step was the suffragio-remptio. rum diremptio, the sorting the votes; if the tallies marked A. prevailed, the proposed law was said to be antiquata, rejected. If those marked U. R. had the majority, the law was passed, and was said to be scita or perlata.
Lastly, the confirmatio took place, which was Confirmadone jure jurando, with solemn oaths and sacrifices. tio. The law was then engraved on brass, and fixed up in the Ærarium in the temple of Ceres, which was under the care of the Ediles'.
The names of the laws were generally taken from the Gentile names of the two consuls of the year in which they were passed, as the Lex ÆliaSentia. Occasionally they were named from the Dictator or Prætor who introduced them, as the Lex Emilia; and sometimes from the subject of the law itself, as the Lex Cassia agraria1.
The election of magistrates was done in the same manner at the pontes; the tallies having the names of the candidates inscribed upon them.
The Roman people appear not to have voted ballot was by ballot before the year U.c. 615. Cicero, speaking of the leges tabellaria, which established this mode of voting, calls them "vindices tacitæ libertatis," and "principium justissimæ libertatis:" and in his oration pro Plancio, he says, "Populo grata est tabella, quæ frontes aperit hominum, mentes tegit: datque eam libertatem, ut quod velint faciant promittant autem quod rogentur." The Roman juries also gave their verdict by tallies, using three. On one was inscribed A. Absolvo; on the second C. condemno; on the third N. L. non liquets.
The Plebs are defined as cæteri cives sine senatoribus. They were arranged in thirty tribes, four in the city and twenty-six in the country. The plebiscita were passed by them when assembled, and voting tributim, the Tribune presiding. There was no asking leave of the Senate, and no consulting the auspices. The proceedings in other respects were the same as in passing a lex.
A Senatusconsultum was a decree of the Senate concerning such things as were committed to their jurisdiction which had not properly the force of law, unless confirmed by the people. It is necessary here to explain the constitution and authority of the Senate during the Republic, and under the emperors. It appears that during the
1 Hein. Ant. I. 2. 14
2 Id. I. 2. 10, and App. I. I. 31.
3 Hence the third verdict of the Scotch Law, "not proven."
Comitia Curiata the number of the Senate was CHAP. 300, and it consisted only of the patrician order. When Servius Tullius organised the Comitia Cen- Constitu turiata, and established the census; the Senate was tion of the then opened to the plebeians, for a certain amount of property was necessary to acquire and to preserve the equestrian rank; so that whilst a plebeian might obtain, a patrician might lose the rank'. The office of Censor was established in the year of the city 311, when it appears that all the Curule magistrates, and also the Quæstors, had, by virtue of their office, a seat in the Senate; and after the institution of the Censorship, the Censors had the right to elect new members into the Senate from among the ex-magistrates, and to exclude such as they deemed unworthy. The Senate, therefore, gradually became an assembly representing the people, for the Censors were confined in their nomination to such persons as had received the confidence of the people by their previous election to a magistracy in the Comitia. During the Republic, the Senate was a council of state with no legislative power. They had the superintendence of the treasury and the coinage; the management of embassies; the administration of the provinces subject to Rome; and the appointment of days of public prayer and thanksgiving. When Augustus became emperor the Comitia were discontinued, and upon the accession of his successor Tiberius, A.D. 14, the right of electing magistrates, which the people had so long and jealously kept in their own power, was transferred to the Senate. From this period the Senatusconsulta became leges, and are found in the Corpus Juris with their distinctive titles, such as the Senatusconsultum Trebellianum, Pegasianum, Macedonianum, &c. But as the Senate under the Republic had nothing more than a veto upon an absurd or obnoxious law, so now it was
1 Gravina, 3.
3 Hein. Ant. I. 2. 45.
2 Cicero de Leg. III. 12.
4 Haub. II. 50.
BOOK nothing more than the echo of the emperor's will. I. He made his relatio, whereupon the Senate voted Mode of pro forma. "Eo prolapsa erat patrum adulatio, voting in ut orationes Principum non nisi acclamationibus exciperent'." When the Senate met for business the consul presided. He made the relatio, which was a statement of the subject, ending with the usual form Referrimus ad vos P. C.; then followed the debate, after which the votes were taken, sometimes separately, sometimes per discessionem, and the house divided. Pedibus ire in sententiam was to give a silent vote. If the proposed measure were carried, it was reduced to writing. Finally, the Confirmatio was essential to give it authority. This was by the tribune affixing his official signature T., without which it did not become a Senatusconsultum, but was merely Senatus auctoritas, the opinion of the Senate.
Edicta magistratuum are edicts of the Prætors and Ediles, which together made up the system called Jus Honorarium.
In the year U.c. 3872 one of the consuls was for the first time elected from the plebeians. Up to this period it would appear that the consuls had discharged the office of administering justice. It is said the patricians made this concession to the plebeians only on condition that a new magistrate should be created to discharge the duties of the consuls in their absence. This was the Prætor Urbanus, first elected in the year above mentioned, and to whom was especially assigned the province of administering justice. It may be doubted whether this alone was the real cause that called the Prætor into existence. It seems to be better explained from the fact, that the administration of justice was no longer the simple process which marked an infant state, but that it was becoming so complex and onerous that it required some one whose
habits were fitted for, and whose time should be CHAP. dedicated to, the discharge of it. The office of Prætor was annual. He was elected in the Comitia. After his election, and previous to entering upon the duties of his office, he published his Album, his rules of court, whereby he set forth Prætor's those cases of which he would take cognizance, Album. together with a declaration in some instances of the amount of redress he would give the suitor who proved his case, such as in simplum dabo, in duplum dabo, &c. The power of the Prætor in His power the administration of justice was expressed in and authothese three words: Do, Dico, Addico. Dabat, he granted petitions to sue and to plead. Dicebat viam in vindiciis, he determined what form of action the plaintiff should adopt. Addicebat, he gave judgment. For a long period each Prætor, at the commencement of his office, was at liberty to expunge from the Album any rules he might deem inexpedient, and to add such as he considered advisable. Those which he adopted from his predecessor were called tralatitia, his own nova edicta. It is evident that many of the leading rules of the Album would soon become so firmly established, that no Prætor could venture to tamper with them without deranging the recognised procedure of the court; still the ever-advancing wealth and interests of the Republic would cause the multiplication of new rules, and the occasional modification of old ones and thus the Album gradually swelled to a large volume.
In the year u.c. 687 the Lex Cornelia restrained Lex Corthe Prætor from making any alteration in his rules nelia. of court during his year of office'. Previous to this time the Prætor occasionally issued his Edic- Edictum tum repentinum, professedly to meet some unex- repenti pected case which came before him, which savoured very much of an ex post facto law, and which opened the door to great corruption. In the reign of
1 Hein. Ant. I. 2. 22.