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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.


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