PO´PULUS
PO´PULUS Populus is the collective name for the
whole citizens of Rome, of whatever rank and class. There was probably a
time when the ancestors of those who retained to the end the title of
patricii were the only persons who
possessed the rights of citizens. At that time the assemblies (
comitia) of the populus would consist wholly of
patricians. It is possible, likewise, that the outsiders, after they had
attained to the rights of citizens in private law, were for a time excluded
from active participation in the assemblies of the populus. They would then
be in the position of the
cives sine suffragio
of later days. It is not impossible (though here we come into dangerous
collision with the ancient authorities) that the non-patrician Romans were
admitted to a vote when the populus assembled in its military capacity
(
comitia centuriata) before the same
privilege was accorded to them when the populus met in peaceful fashion
within the walls (
comitia curiata). But all
this relates to pre-historic times. There is no evidence that, from the
expulsion of Tarquin onwards, the plebeians were ever excluded from any kind
of assembly of the populus Romanus. In all the history of the contest of the
orders, we never hear of this privilege as a thing which remained to be
fought for.
The populus Romanus is in theory sovereign in all matters. Every difficulty
can be solved in the last resort by its interposition, and its command is
law: “Lex est quod populus jubet atque constituit” (Gaius,
1.3). It cannot be bound even by its own previous decisions: “quod
populus postremum jussisset, id jus ratumque esto” (Law of Twelve
Tables). It may ordain and alter what it pleases in its own constitution, or
in the powers and tenure of its magistrates, or in the delegation of rights
to other persons or bodies, or finally in the ordinances of religion itself.
This very omnipotence necessitated caution in the use of such unlimited
authority. Especially the Roman people must be careful not to ordain
anything which is likely to cause the withdrawal of the blessing of heaven
on their actions. The populus by its own act (for there is none above it)
protects itself against its own possible mistakes by attaching to each
decree a saving clause, “si quid sacrosancti est, quod non jure sit
rogatum, ejus hac lege nihil rogatur” (see for references and
explanation Mommsen,
Staatsr. iii. p. 43, n. 3, and p. 335,
n. 2). In order to determine what may safely be commanded in the sphere of
religion, the people naturally takes the advice of learned men, pontiffs and
augurs, who are supposed to have special knowledge in these subjects.
In order to utter its supreme command the people must be properly summoned
and have the question properly put to it ( “consul populum jure
rogavit” ). The Romans always recognised the necessity for order
and discipline: “ubicunque multitudo esset, ibi et legitimum rectorem
multitudinis censebant debere esse” (
Liv.
39.15,
11). The magistrate, selected
by the community to be its leader and to consult the gods on its behalf, is
the only person who can elicit its sovereign will by putting the question
with the proper solemnities (
auspicato). The
initiative residing in the magistrate is thus of the highest practical
importance. The assembly can only answer Yes or No to his
rogatio. But while fully admitting the great influence of the
magistrate in the comitia, we must be careful not to exaggerate his formal
attributes, or to forget that he does not ordain, but only requests the
people to ordain ( “Velitis jubeatis, Quirites” ). We can
hardly hold then, with Mommsen (
Staatsr. 3.304, 312), that it
is of the essence of a
lex rogata to be an
agreement between two independent powers, the magistrate and the people.
Other writers have gone further than this. Borgeaud, for instance, approves
the doctrine that sovereignty legitimately resides in the magistrate rather
than in the people, and that law in its truest conception is something
imposed on the people from above: “The fact that the magistrate of
ancient Rome, elected though he may be, does not hold his power from the
assembly of the people, is a truth which criticism establishes each day
more and more. We think that it will establish, likewise, that the law
is on the same footing” (
Hist. du
Plébiscite, p. 114). “In the time when the
magistrate and the law are by divine right there is no other sovereign
than the magistrate, consecrated by the auspices of heaven and clothed
with the imperium” (ib. p. 167). Such theories are in admitted
contradiction with the ideas which the Romans of historical times
entertained as to the basis of their own institutions. These institutions
are represented as given indeed by the first king, who was also the founder
of the state. Before Romulus, the Roman people did not exist, so that it
could not of course be depicted as electing its first king or instituting
its own senate or assembly. But with this exception, the Roman tradition is
essentially republican in spirit. If the Romans had believed in the divine
right of monarchy, they would certainly have enshrined it (as did the
Spartans) in a heroic family. If they had imagined that the magistrate was
inspired to dictate laws to them, they would have ascribed to him and not to
the comitia the authority to override the sentence of the law in favour of a
condemned criminal, and to undertake an offensive war, and to enable the
citizen to dispose of his property to persons other than his natural heirs.
It is just in such extreme cases that we can see where sovereignty really
resides. Because the power of the magistrate is limited, the unlimited power
of the people has to be called upon to intervene in such circumstances.
The practical activity of the populus is at every stage of Roman history
hampered and restricted. In early times there was little to be done in the
way of government beyond the command in war and the administration of
justice, both of which were included in the imperium of the magistrate. The
authorised body of advisers attached to the magistrate would likewise make
the frequent consultation of the people unnecessary. Later on, the
difficulties in the way of a magistrate who wished to put a question to the
people were ever on the increase, and every such difficulty might be an
obstacle between the people and the utterance of its will. In the presence
of this practical nullity the
[p. 2.465]persistence of the
doctrine that the People is the fount of power and the fount of law becomes
the more remarkable. The magistrate (even the king) is represented as having
not a co-ordinate but a derived power. His ministerial functions are
necessary for the proper utterance of the voice of the people, but it is the
people and the people alone whose commands are absolute. The
sic volo sic jubeo which is the essential
characteristic of sovereignty is to be found here alone. It is open, of
course, to the critic to point out that our authorities for this
presentation of the Roman constitution are of late time, and that they may
have read into the early history ideas which belonged to a subsequent
period. This may be a reasonable ground perhaps for scepticism, but hardly
for setting up by conjecture a system of doctrines which were unknown to the
Romans themselves. We can only present the Roman constitutional theory as it
appeared to the Romans of historical times.
The assemblies of the populus Romanus are occasionally called by the general
name of
concilia, but their distinctive title
is
comitia. Concilium is more appropriately
used of those assemblies which have no right to the more dignified and
specific title of
comitia. The populus Romanus
assembles in historical times in three ways,--by curies, by centuries, and
by tribes. The most concise account is that of Laelius Felix in Aul.
Gel. 15.27: “Is qui non universum populum
sed partem aliquam adesse jubet, non comitia sed concilium edicere
debet. Tribuni autem neque advocant patricios neque ad eos ferre ulla de
re possunt . . . . Cum ex generibus hominum suffragium feratur curiata
comitia esse, cum ex censu et aetate centuriata, cum ex regionibus et
locis tributa.” [See
COMITIA]
From the time of the secession to the Mons Sacer, the populus Romanus has
side by side with it another great corporation, that of the plebs. The two
corporations, though consisting in the main of the same persons, remained to
the end of the Republic distinct in law. But the fact that the assemblies of
both are popular assemblies, and that both the words
populus and
plebs may be used in
a loose and general as well as in a technical sense, causes much confusion
when we are dealing with the expressions, not of lawyers, but of politicians
or historians. The confusion may best be illustrated by a passage of Livy
(
27.5,
16) where
the distinction is alternately remembered and forgotten: “Decrevit
senatus ut consul, priusquam ab urbe discederet, populum rogaret, quem
dictatorem dici placeret, eumque quem populus jussisset, diceret
dictatorem; si consul noluisset, praetor populum rogaret: si ne is
quidem vellet, turn tribuni ad plebem ferrent. Quum consul se populum,
rogaturum negasset, quod suae potestatis esset, praetoremque vetuisset
rogare, tribuni plebis rogarunt plebesque scivit, ut Q. Fulvius . . .
dictator diceretur.” So far the words are used with absolute
correctness; but immediately afterwards he makes the senate send for the
other consul “ut diceret, quem populus jussisset, dictatorem.”
By the Hortensian law of B.C. 287 the decrees of the plebs received equal
force with those of the populus [see
PLEBISCITUM]. Those writers who view even the
legislative capacity of the populus as a setting aside of ancient doctrine,
and as an usurpation by the secular power in the province of divine right,
consider the power accorded to the decisions of the plebs as a further step
on the path of impiety. “Religion,” says Borgeaud (
op. cit. p. 154), “lends its force to the
consular or praetorian law, made under the auspices of Heaven. The spear
makes the plebiscite equal to the law.”
“In setting itself up as equal to the holy Law, it a lay and profane
thing, the plebiscite secularises law; it emancipates it definitely from
religion; it makes it human” (ib. p. 192). There is little to
justify this contrast. The plebeians were as religious as they knew how to
be. Their magistrates are not indeed qualified to take the auspices of the
patricians which are those of the Roman people, and so their assemblies
cannot be held
auspicato. The plebs came into
existence in an age when it was not at all easy for them to invent auspices
of their own and fresh augurs to interpret them. But they went as near to
this as possible. They had their consecration of the Sacred Mount, their
solemn oaths in the presence of Heaven, the
sacrosanctitas conferred on their magistrates. These rites were
doubtless acquiesced in with contempt by the patricians, much as Sudra rites
would be despised though not disallowed by Indian Brahmins, but they were
none the less religious. Even supposing that we deny any religious sanctity
to the decrees of the plebs as such, it must be remembered that since the
Lex Hortensia they could claim a derived right. The law of Hortensius was an
enormous act of sovereignty on the part of the populus Romanus. The populus
saw fit in the plenitude of its power to decree that an
alter ego should be set up in the person of the plebs.
Whoever then denies the competence of the plebs, limits the power of the
populus, and sets at nought all the sanctity which the law may have acquired
from the regal prerogatives of the dictator's office, and from the auspices
and prayers with which doubtless Hortensius commenced the business of the
day.
The equivalence of the powers of the two corporations naturally increased the
tendency to use indiscriminately the technical terms belonging to each; and
the contrast between
populus, comitia, lex,
jubere on the one hand, and
plebs, concilium,
plebiscitum, sciscere on the other, is practically disregarded.
This confused usage has led in one instance to a serious difficulty of
interpretation. The corporation of the plebs, which before the law of
Publilius Volero in B.C. 471 probably assembled by curies, after that date
assembled by tribes, and by tribes only. Thus, while in the case of a
curiate or a centuriate assembly we know at once that the body which is
meeting must be the populus, in the case of a tribute assembly it is not
always clear whether the populus or the plebs is intended. Some modern
writers (e. g. Madvig,
Verfassung des röm. Staates,
3.5) have imagined that not only was there a confusion of expression, but
that there was actually only one such assembly. The ancient authorities
seem, however, conclusive on this point. The assembly by tribes which is
[p. 2.466]called together by the tribunes cannot be an
assembly of the populus Romanus, for “populi appellatione universi
cives significantur, connumeratis etiam patriciis” (Gaius, 1.3),
and “tribuni neque advocant patricios neque ad eos ferre ulla de re
possunt” (Laelius in Aul.
Gel.
15.27). On the other hand, the assembly of the plebs cannot be that
tribute assembly which confers the lesser
auspicia
patriciorum [see
MAGISTRATUS], which is presided over by a patrician magistrate
(see
Cic. Fam. 7.3. 0, “Caesar, qui
tributis comitiis auspicatus esset,” &c.), and which
passes laws on the
rogatio of a consul. (See
the preamble to the law in Frontinus,
de Aquis,
ch. 129: “T. Quinctius Crispinus consul populum jure rogavit
populusque jure scivit in foro pro rostris aedis divi Julii pri. k.
Julias. Tribus Sergia principium fuit, pro tribu Sex. L. f. Varro primus
scivit.” ) There seems no escape from Mommsen's conclusion that
the two corporations remained distinct; though the plebs always, and the
populus sometimes, assembled by tribes.
Each of the two corporations had of course the election of its own officers,
and by a special regulation of the Twelve Tables the populus, and the
populus assembled in centuries, was alone competent to hear an appeal from
the sentence of a magistrate affecting the life of a citizen. With these
exceptions the assembly of the populus by way of tribes or of centuries and
the assembly of the plebs were equally competent to pass sovereign decrees
in all matters, and there are both leges and plebiscita relating to all
manner of subjects of legislation. Even in the few reserved matters, the two
approach each other as nearly as possible. The plebs may not indeed elect a
consul or a praetor, but it may appoint a man to act
pro
praetore or
pro consule (
Liv. 31.50,
11). It
may not deprive a citizen of his
caput, but it
may decree that he shall be held to have deprived himself ( “videri
eum in exilio esse,”
Liv. 25.4,
9), or it
may authorise the senate to try him (
Liv. 26.33,
12), or it may itself pronounce a capital
sentence against him, conditionally on the finding of a jury. It is a
tribune of the plebs, Fufius, of whom Cicero (
Paradox. 4.2,
32) says to Clodius: “Familiarissimus tuus de te privilegium tulit, ut
si in opertum Bonae Deae accessisses exulares.”
The distinction between populus and plebs, all important for the antiquarian
and the constitutional lawyer, was practically of no significance for the
statesman. Polybius in his elaborate account of the working of the Roman
constitution does not so much as mention it. The practical effect of
doubling the sovereignty was merely to commit the initiative to the tribunes
as well as to the consuls and praetors. This parcelling out of power was
probably a convenience as long as the senate kept a firm hand over all the
magistrates; it added one more element of anarchy when this constitutional
control was set aside.
[
J.L.S.D]