CHAPTER THREE Legitimization: Participants and Procedures

PICTURE A RESOLUTE P. Servilius Rullus in the spring of 63, unmoved by Cicero's persuasive eloquence some weeks earlier and primed to take his bill to the Roman people. The tribune's call to assemble on the scheduled day would set in motion a rush of complicated maneuvers intended to satisfy a range of practical, as well as procedural and ceremonial, requirements.¹ Baskets (cistae) brimming with voting tokens (tabellae) and empty baskets to hold the votes of each tribe stood ready near the temporary voting platform (pons), sur­rounded by a guard of reputable observers (custodes) from each tribe, drawn from the jury lists.² Enumerators (diribitores) from the tribes stood by to count the votes.

returned to the crowd to make way for the next man. The voting was now under way. Tribe by tribe, in regular sequence, the voters individually approached the platforms and cast their ballots. Tribe by tribe the enumerators tallied and declared each tribal vote. Just as soon as a majority of tribes had voted the same way (eighteen out of thirty-five), the issue was decided.

How this complicated process, in which some voters were passed over at ran­dom, resulted in legitimate law, binding on the entire Roman population, forms our quest in this chapter. All Roman males between the ages of seventeen and sixty in possession of full citizen rights (cives optimo iure) were in principle able to cast votes in any of Rome's scheduled voting assemblies. Many must have done so, for convening in assemblies of various sorts and voting allowed the primary expression of citizenship. Some voting assemblies were regular occur­rences throughout the year, namely, the electoral assemblies on which the selec­tion of Rome's leadership depended. Some were irregular occurrences, like the judicial assemblies that, until the early second century, decided guilt or inno­cence in select criminal cases. More crucial across the centuries were the ran­domly scheduled lawmaking assemblies at which the Roman people publicly resolved issues that could not be resolved in the traditional manner by the Sen­ate or officeholders serving in a wide variety of official offices. But whether sum­moned to elect new leaders, to adjudicate state crimes, or to accept or reject bills, all voting assemblies were for hundreds of years alike in most respects. They demanded time, energy, and a considerable amount of knowledge in order to engage in the intricate rituals and procedures required. On these occasions political leaders interacted with citizens in order to discern the sovereign will of the Roman people.

WHO VOTED?

When the senator and scholar M. Terentius Varro wrote his popular treatise on farming around 70, he plausibly cast the final book as a conversation among a group of senators waiting to learn the results of an assembly convened in the Campus Martius to elect aediles. Two of the waiting senators were members of the same tribe (tributes) who had already cast their ballots and now waited to escort their candidate home. Another was an augur who, by his ready presence to interpret divine signs, played an essential part in the process. As the group sat in the shade of the Villa Publica and talked about plantation farming and farm management, an abiding interest of Roman senators, some of its members were called away while still other acquaintances passing by joined in the con­versation. In Varro's description of senators interweaving their ordinary con­cerns with the business of an electoral assembly we gain a sense of the regular place of voting in the life of the city. We gain a sense also of the special atmos­phere that elections generated in Rome: the excitement and anticipation, the high tension as the murmur of the crowd swelled and subsided across the city, following the announcement of results that stirred the emotions.

Over hundreds of years, voting assemblies occasioned a sense of political urgency. Varro's description of an annually occurring election for aediles pro­vides a case in point. While the voting process unfolded, the voters were sub­ject to the incessant exhortations of candidates for office or supporters and opponents of a proposal of law. The temporary platform occupied by the han­dlers of the voting urns, the custodes (and earlier by the rogatores until the lex Papiria tabellaria of 130 introduced the written ballot)—made narrower by the tribune C. Marius in 119 so that there was too little room for the custodes and thus less opportunity for them to influence individual voters—gives us some indication of the pressures on voters at the end of the second century before that typically practical Roman solution.⁴ On certain occasions for some voters it doubtless took nerve and a deep commitment to participate.

On any occasion, voting presented citizens with a formidable task whose exigencies though unmentioned by Varro were certainly well known to him. Scheduled to coincide with market days, when the many market areas through­out Rome were bustling with buyers and sellers from rural areas and from beyond Italy, an assembly began at dawn with the summons to a preliminary meeting held before the voting began, heralds crying the venue from the city walls, the Capitoline hill, and the Forum. People had already begun to gather the day before, if the issues and personalities warranted. Hence the Forum or other meeting place, as well as the places of assembly (the Forum, Circus Flaminius, Campus Martius, or Capitoline hill), could be crowded with all manner of people, not all citizen voters—men, women, and children, slaves and foreign­ers. Hawkers and vendors of food and drink circulated among the crowds, lis­tening to public orators, waiting to hear the outcome of the lottery, waiting to vote or to hear the outcome of the vote. In Varro's day it took hours for all the voters present to cast their ballots (especially in the lawmaking assemblies, where the tribes voted consecutively) and for the enumerators to laboriously and scrupulously count them. Or people simply waited: The crowd and the atmosphere may have been reason enough for many to be on hand. But some people might leave the area, whiling the time away in another part of the city or simply avoiding the crowds and the sun and heat, especially during July, when the electoral assemblies met. By the standards of the modern Western world, voting in Rome was remarkably tedious.

Voting also assumed familiarity with a set of singularly elaborate voting arrangements. Unlike any other Italian community, or Greek city-state for that matter, Rome over time devised not one but three primary citizen voting assem­blies distinguished by their convening magistrates and constituent voting units.⁵ As the plebeian tribal assembly (concilium plebis), summoned by the chief offi­cers of the Roman plebs, tribunes, the Roman plebs voted in tribes from which patricians, who formed a relatively small group among the elite families of Rome, were in principal excluded.⁶ When summoned to vote in their tribes by con­suls or praetors, the chief magistrates of Rome, Romans constituted another kind of tribal assembly that presumably included all citizens; this assembly, as we saw in chapter 1, is called by modern scholars the comitia tributa.

Similarly the Roman people knew the sometimes subtle differences in the purposes of the various assemblies. The people met as centuriate assemblies to make decisions about war and peace and to elect consuls and praetors as well as “curule” aediles (so-called to distinguish them from the plebeian aediles). A centuriate assembly was the assembly Varro had in mind. The Roman people met as tribal assemblies to make decisions about law; to elect the lesser mag­istrates as well as the military tribunes and, after 107, priests; and to pass judgment as a “people's court” (iudicium populi) on the guilt or innocence of individual Romans, whose crimes against the State were laid before them. When the Roman people met to make decisions about law they are conveniently called a legislative or lawmaking assembly by modern scholars. After 287, the ple­beian tribal assembly became the most important lawmaking assembly in Rome, followed by the full tribal assembly. Seldom did the centuriate assembly enact law.⁸ However, the declarations of war, which were usually made by the cen­turiate assembly, were also called leges and are included in the category “pub­lic law.”⁹ When the people met to elect magistrates, they are conveniently called an electoral assembly. Again, the centuriate, the tribal, and the plebeian tribal assemblies could all be electoral assemblies. In spite of the different bases of their basic voting units, tribal membership in one case and property rating in the other, common to all assemblies was the corporate body from which each was assembled: the Roman people (populus Romanus). Nonetheless, the Roman people were subject to, and had to know, infinitely changing, overlapping, and a bit confusing (to the modern mind) arrangements for the purpose of mak­ing different kinds of decisions affecting the entire community.

The complexity of the procedures associated with the actual vote, detailed at the beginning of the chapter in the imaginary assembly convened by Rul­lus, made even more strenuous demands on the voters. Not only did voters have to know the candidates or the details of proposed bills upon arrival in Rome, but they had to be familiar with the complicated choreography of each intended voting event. Voters had to command an extraordinary range of incredibly minute operations even beyond those concerning the nature of the particular assembly simply in order to participate in the process. In particular, the execution of the vote, involving voting bridges (pontes), tribal order, ballots, voting urns, and more, assumed an impressive amount of information on the part of the partici­pants. The array of essential detail that elected officials and voters had to know and understand in order to participate was astonishing. The relatively effortless observation of all these complicated procedures throughout our period of inter­est suggests that they were clearly understood by all voters at a very deep level. What manner of men these voters were is a question well worth asking.

In the late first century, the Roman voting population, more precisely the corporate body known as the Roman people (populus Romanus), held a broad spectrum of status, property, and territorial groups among the citizenry that by then included most inhabitants of Italy. A voter at any of Rome's assem­blies could be a poor man or rich. He could be a resident of Rome or of any one of many lesser towns and villages; or he could be a rural inhabitant of Italy. He could be Roman, Latin, Italian, or foreign in background. He could be freeborn or ex-slave, a tenant farmer or private landowner, a laborer, a merchant, or craftsman, a senator or equestrian. Whatever his legal, social, or economic posi­tion and whatever his place of residence, he was nonetheless a Roman citizen: He was male, registered in a tribe and property class, and liable to military serv­ice between the ages of seventeen and sixty. Voting in Rome was restricted to citizens, a very precisely defined group in Roman society, just as citizens were in other ancient Mediterranean societies.

Yet in striking contrast to other ancient societies, the pool of Roman voters had expanded significantly over the years in pace with the territorial expansion of the Romans in Italy and the incorporation of new citizens. Down to 91, the growth in citizen numbers was slow but steady. Then, in 90, the size of the Roman citizen population more than doubled in size, when almost all the peoples of Italy became citizens through a public law enacted by the Roman people with the result that Rome's voters, numbering 394,336 by the census of 115 and 463,000 by 86, increased to 910,000 in the census of 70.¹⁰ Thus while the pool of voters was vast even before 90, by the standards of ancient Mediterranean communities, after 90 the size of the pool was simply phenomenal.¹¹ Further­more, as the number of voters expanded, so too did the geographic area from which they were drawn. Citizens sometimes resided hundreds of kilometers from Rome. Nothing like this had been seen in the world to date.

As numerous and as scattered as Roman citizens came to be by the first cen­tury, the formal presentation, debate, and decision about the election of offi­cials, enactment of laws, and handing down of justice took place only in Rome throughout my period of interest. On the rare occasions when assemblies met outside Rome the reaction was swift and adverse: following one such assem­bly the people immediately enacted that Rome was the only venue for legiti­mate assemblies.¹² As a corollary, a citizen cast his vote only in one of the voting venues in Rome. Voters, who were increasingly drawn to voting from all parts of the Italian peninsula, had to make their way to Rome for the duration of the voting if not the entire electoral or lawmaking process in order to vote in the annual electoral assemblies and the frequent lawmaking assemblies. In terms of the planning required to get there and the knowledge such a journey assumed, voting in Rome came to be a very demanding affair. We might well wonder how many voters made the journey.

The limitations of space in voting locations throughout Rome make the ques­tion of how many voted more pressing still. Before 200, the tribal assemblies met in the precinct of the Temple of Jupiter Best and Greatest on the Capitoline hill, an area of about fifteen hundred square meters.¹³ After 200, the tribal assemblies met in the Comitium, about sixteen hundred square meters, and later in the Forum, seven iugera or approximately twenty-five hundred square meters in extent.¹⁴ Throughout the Republic, the centuriate assembly met in the Campus Martius, outside the city's sacred boundary. Modern historians have observed that the space available in these areas could hold only limited numbers of people: the Campus Martius, the largest of the three locations for Roman voting assemblies, could accommodate anywhere from roughly forty thousand to seventy thousand people, standing room only.¹⁵ The Forum, which was the regular meeting place for the tribal assembly after 200, was considerably smaller. It appears that Rome could hardly hold its voters if they all came at once to vote, many times a year.

From a strictly practical standpoint, the practice of voting in the assemblies must have been restricted to relatively few citizens. Considering the space lim­itations, 4 percent at most could have attended Rullus's imaginary assembly in 63, that is, seven years after the last census, when roughly 910,000 citizens were enumerated.¹⁶ Considering the knowledge required to participate, how many citizens could attempt the process? Although modern scholars make much of such matters, from the Romans' perspective neither numerical representation nor knowledge appears to be an issue. The number of contributing voices mat­tered relatively little in the pronouncement of the Roman people's commands (iussa populi) while the most detailed knowledge of the voting process by the voters is simply assumed.¹⁷ Given the modern tendency to diminish the men­tal capacity of any crowd and to equate the expression of popular sovereignty with majority rule, the curious observer wonders therefore about the Roman perceptions of political action that generated the arrangements and procedures detailed earlier and led citizens to participate in these uniquely devised, uniquely Roman assemblies.¹⁸ Vitally important to any understanding of voting patterns in lawmaking assemblies is the paradoxical role of the Roman people in the production of law.

THE PEOPLE

The force of the arguments and the complexity and volume of detail in Cicero's first public speech as consul in January of 63, De Lege Agraria 2, are unexpected, if either are regarded as a measure of the voters' interest in public business or of their sophistication.¹⁹ Historians do not often credit them with either.²⁰ Despite a conventional understanding of Roman citizens that minimizes the importance of issues in drawing a crowd, Cicero's De Lege Agraria 2 indicates otherwise. The focus of Cicero's arguments, detailed in the previous chapter, indicates a deep interest in P. Servilius Rullus's land redistribution scheme. Moreover, when Cicero concerns himself with concrete issues of drafting he must take it for granted that the Roman people can appreciate technical details and that it matters to them what exactly the law says. This was no recent devel­opment. Earlier, in the third century, when the comic poet Plautus admonished his audience to decide on the best production fairly, he phrased his request in the language of public law and delivered it in the resonant patterns familiar from a public lawmaking session where the herald intones the law to the assem­bled crowd.²¹ Mimicking a lex de ambitu in language and rhythm, the Latin verses are remarkably close to the real thing. We find in other plays by Plautus, whose plots are mostly the reworked stories of Greek productions, other comic allusions and deliberate references to Roman public law, which could have been effective as comedy only if these resonate with an existing attitude toward and appreciation of public law on the part of the Roman people. As an index of convention and behavior, comedy is invaluable.

The ancient testimony presents us with a set of apparent contradictions about the people's role in Rome's energetic public lawmaking process—at least from a modern perspective, informed by the workings of twentieth-century CE Western democracies. As represented to us by an elite writer like Cicero, the people's role appears somewhat ambiguous. In De Lege Agraria 2, for instance, the sovereign will of the people was on the one hand paramount, once the vot­ers had cast their vote and made their decision. On the other hand the people were malleable in the right hands. Cicero is evidently unconcerned about what appears to a modern historian to be the incongruity between the two views of the Roman people, whose judgment is at one and the same time confidently supreme and pliantly infirm. Cicero juxtaposes popular sovereignty and infirmity of judgment constantly, most notably in the discourse De Legibus (On Statutes). To be sure, De Legibus is a theoretical essay on laws and lawmak­ing, not a description of actual lawmaking in Roman political life.²²

Nonetheless the prevailing attitude among some political leaders about the role of the people in making decisions about law was by our standards strongly elitist. The people's knowledge about public law and the lawmaking process was not regarded as “serious” knowledge, whatever depth or range it did acquire (which we cannot know). In De Lege Agraria 2, Cicero openly dismisses the people's capacity to understand the public law of Rome. Behind this perva­sive line of argument is a rather convoluted set of assumptions. As we read Cicero's speech, we can see that he took it for granted that what the people thought Rullus's proposal was and what he knew the proposal was were two dif­ferent commodities. Cicero assumes that two states of general knowledge existed in Rome about law and lawmaking, one belonging to the Roman people and the other to Cicero, a member of Rome's political elite. Whether the people shared the assumption we cannot know for sure. They probably did not.

The corollary to Cicero's assumption is of course that the people ought to rely on the knowledge of Rome's political leaders. According to Cicero the peo­ple could not participate knowledgeably or ably in making decisions about law— that is to say, they could not act in the best interests of the state—without the guidance of Roman leaders.²³ This is not Cicero's opinion alone; it per­vades the writings of others in the same class. Moreover it was a view appar­ently shared by the masses of Roman voters as indicated by their apparent satisfaction with group voting (discussed in the next section). To all Romans, the beneficent and guiding influence of the Roman aristocracy flowed natu­rally down, never meeting an opposite flow. Roman political leaders occasion­ally even thought to regulate conventional behavior. Cicero advocated such regulation in his treatise De Legibus, whose readers were men of his own class.²⁴

The many-layered objectives of the debate might appear to confirm this. As we saw in the previous chapter, public oratory was an exercise in persuasion. At the same time, political leaders clearly saw the debate as the primary occasion for informing Roman voters about the matters at issue. Magistrates furnished specific information about laws that was assumed or hidden in the context of a speech but was clearly derived from the text of the proposal under discussion, whether it was conveyed as a paraphrase of the law, a direct quote, or a public reading from the text itself. The method of conveying this informa­tion in meetings appeared to rely entirely on the magistrates, via their assis­tants as intermediaries. In such public meetings the people depended on magistrates and other members of the political elite for the information needed in the public argument about laws. Indeed, they expected their political lead­ers to mediate between themselves and the leader who proposed the law by pro­viding the information required to make a decision in public lawmaking events. In effect each magistrate told the people what they needed to know, from his point of view, hoping for a response from the people, pro or con, depending on his position on the law. The scope for independent action from the people was narrow at best. No wonder their political vigor has long been disregarded.

Yet it is worth stressing that in situations that allow popular attitudes to emerge, there is a wide range of options in the way in which leaders assert their superior positions and the majority population receives them. On lawmak­ing occasions the people could be aggressive. The people could be forceful in the expression of their wishes, even in the face of opposing wishes on the part of that most unified body of Roman leaders, the Roman Senate. Despite the active opposition of senators and even his father, C. Flaminius as tribune in 232 won the people's approval of his land redistribution bill.²⁵ The events sur­rounding Pompey's nomination to the supreme military command against the pirates in 67 by a law proposed by the tribune Gabinius illustrate the point more forcefully.²⁶ The Senate disapproved of Pompey's nomination and announced their disapproval. The people, supporting Gabinius's proposed law, would not accept this and mobbed the Senate House. No formal decision from the Senate about their collective opinion was issued. But the people evidently hoped for such an opinion and that it would support the bill. At the final pub­lic meeting convened before the law was put to the vote, Gabinius coerced two tribunes into keeping quiet and afterward invited Catulus, the princeps senatus, to speak, hoping he—and, represented in him, the Senate—would be persuaded by the experience of the tribunes to give his public approval of the proposal. Throughout this incident it quite obviously did matter to the people and to Gabinius that the Senate should publicly approve the plan to give the command to Pompey. Despite their intention to go ahead with it any­way, the action by the people and Gabinius at the Senate House and at the final meeting was aimed at persuading the Senate to support the arrangements they wanted. In turn, Rome's political leaders clearly took the Roman voter very seriously, and, although the public argument and voting on laws were directed and articulated by Rome's rulers, the interest and involvement of the Roman people were critical. To the extent that voter behavior was shaped by influence and persuasion, influence and persuasion worked both ways. Mag­istrates influenced public opinion, but they were themselves influenced by it. The prime reason is obvious. Lawmakers needed the support of public opin­ion for the success of their proposals of law.

To be sure, although Roman voters determined absolutely the success or fail­ure of bills, they had virtually nothing to do with developing them. Whether single-handedly or in collaboration with elected officials and senators, ordinary Romans never formulated or drafted bills. They never initiated law proposals, as their counterparts had done in the Ekklesia of Classical Athens. Most impor­tant, they never orated publicly about law proposals. Formally, the Roman people were merely asked to make a yes or no decision about a bill presented to them in advance by one of their elected officials and debated in their pres­ence by other political leaders. They made no other contributions. This was understood. Rather, the production of law was firmly directed by Rome's elected officials and senators. These men initiated the process in private workrooms and on the floor of the Senate. They brought the fruits of their labors into the light of day through the sponsor who, in the presence of the Roman people, promulgated his bill by announcement, recitation, and posting. The Roman people merely stood by and listened, an audience of voters. The Romans clearly accepted the respective roles of the people and their political leaders. A passage from another play by the comic poet Plautus is instructive, in which a “hanger-on” (parasitus) named Saturius sets out to draft a statute. He starts to formulate his statute but finally quits his efforts, saying, in effect, “this is a job for our elected leaders.”²⁷ Here we see reflected the real division of labor in the patterns and procedures involved in public lawmaking, understood by all Romans.

Nonetheless, the people were considerably more than passive actors in the process. Voters, like their elected officials, regularly brought a fairly sophisti­cated, technical level of knowledge to public lawmaking sessions. To be sure, the levels of knowledge of Roman political leaders and the Roman people, as they are exhibited on such occasions, were different: the Roman voters did not themselves need the same information, that is, the same command of detail or the same knowledge of precedent, since they did not participate in lawmaking in the same way. But such differences arise from a mutual understanding of the proper, reciprocal role of each group in the public lawmaking arena. They do not diminish the extent to which, to the Roman mind, the voters were mak­ing a choice. The people listened to one officeholder or another; different points were aired that they heard and approved or rejected. In all such occasions of give-and-take we can see the extent to which the people were actively engaged in ensuring that society work as they believed it should, in 67 no less than in 200. The Roman people's behavior on lawmaking occasions may only have been a matter of choice about which leader to heed, but it combined with a reaction to events as well as an intuitive understanding of the ordering of Roman society. Hence, the reality of voter participation was far more complicated than the elitist position would have it. We are entitled to wonder therefore why it is that the political voice of the Roman people at public lawmaking sessions was expressed in the manner in which it was.

THE GROUP VOTE

Any customary assumptions underlying community action and common pat­terns of association that determined the clustering of participants in law­making events were vastly complicated by a steady movement of citizens and foreigners in and out of the city. To an extent not yet recognized participa­tion in assemblies was tied to this movement; predictably, therefore, Rome's voting population was a changeable and, to modern observers, an erratic body.²⁸ Contemporary observers, however, grasped intuitively the range of considerations behind individual decisions to participate in public lawmak­ing assemblies. One such observer was Cicero. In a trial speech delivered in 57 to the tribunal investigating an allegation of political violence laid against his client, Cicero claimed that the Roman people had shown so little inter­est in a certain bill proposed by the tribune Vatinius in 59 that some tribes could not vote until substitutes from other tribes had filled out the num­bers.²⁹ In the same year, Cicero claimed that “all of Italy” (tota Italia), by which he infers the better classes from municipia in all corners of Italy, had converged on Rome to vote in their centuries on the bill proposed by the consul to recall Cicero from exile. In the vastly different levels of reported attendance at two lawmaking assemblies (one rarely used for the purpose, namely, the centuriate assembly) lies the point of departure for our explo­ration of Roman voting patterns: the group vote.

No Roman voted as an individual but rather as a member of a group, most salient for lawmaking purposes one of the constituent voting units of Rome's principal lawmaking assemblies, the thirty-five rural and urban tribes to which all Romans belonged.³⁰ When he cast his ballot in a tribal assembly, a Roman voter engaged in the process of exercising not his own views but the will of his tribe. His decision and the decisions of a majority of like-minded fellow tribes­men gave expression to the harmonious voice of the Roman tribe, determin­ing the official vote of the tribe. “One tribe, one vote” was the rule in Rome's tribal assemblies, up to a total of thirty-five possible votes. So critical was the tribe as an intact unity that the number of voters present to vote in any tribe was immaterial, so long as they had a basic number to make a tribal presence viable. (We have no idea what this number was although the Romans clearly did, witness Cicero's disparagement of the assembly convened by Vatinius.)³¹ No matter how many or how few members of any tribe voted, the tribe still car­ried a vote that weighed equally with the votes of other tribes.

Correspondingly, a majority of tribes, not men, made decisions in Rome's lawmaking assemblies. A bare majority of the assembled tribes—eighteen out of thirty-five—was deemed sufficient to express the will of the whole Roman people.³² The conviction is far removed from the premises of representative politics in Western democracies. Its vigor throughout the Republic, however, is demonstrated in the unwavering assent by Romans of all periods to the lex Hortensia, a decision by the Roman people in 287 to make laws approved in the plebeian tribal assembly binding on the whole community. To the extent that the vote of each tribe (and each man's vote within the tribe) carried the same weight, the tribal assemblies were structurally egalitarian, unlike the cen­tury-based centuriate assembly, and offered the only formal setting where the popular voice could be heard. Nonetheless it was a group voice.

The notion of a group consensus is a distinguishing feature of Roman civic culture, visible first and foremost in the voting units to which all Romans belonged. The notion extends far beyond such formal units, however. To a degree unparalleled in modern Western societies, the Romans in Cicero's day formed various clusters beneath the umbrella of the Roman state. Groups of men sharing the same status or cult, ethnic origins, or occupation were basic units of informal allegiance and loyalty in the Roman world, from the priestly colleges of elite Romans (sodalitates) to the clusters of dangling members of society, forming the networks in an adoptive society that we call associa­tions and the Romans called collegia.³³ Among such groups the Roman tribe was preeminent. Other groupings in Roman society were less precisely defined in any corporate sense: ethnic or regional groups and groups based on personal ties or common objectives. All clusters, formal and informal, exhibit specific interests and aspirations. They share common loyalties. They form the locus of discussion and decision. Above all they are held together, top to bottom and side to side, by bonds shaped by mutual respect, deference, and obligation among all members. Intrinsic to all Roman groups were the time-honored attachments that made the group voice viable.

These attachments lodged their deepest and most tenacious roots in the Roman tribes, each of which accommodated the full spectrum of Roman sta­tus and property classes. Within the tribe, ordinary Romans and high status Romans lived side by side. Within the tribe were acknowledged tribal leaders, reputable men of respectable or high status, whose recommendations and opin­ions other tribesmen for the most part respected. Such men were elected annu­ally to be the tribe's foremost officials, curatores tribuum, five in each tribe.³⁴ Described by Mommsen as middlemen between the people and the elected offi­cers of the state, the curatores tribuum were undoubtedly brokers among groups within the tribe as well.³⁵ Tribal leaders knew their fellow tribesmen, their cir­cumstances, and their needs. They regularly distributed cash, grain, and oil to their fellow tribesmen, gifts that had become standardized at an early date and placed under the management of the divisores who were responsible for their distribution. As in the larger society, so in the tribe mutual ties of deference and obligation linked ordinary tribesmen and tribal leaders. Ordinary tribes­men heeded the recommendations and opinions of acknowledged tribal lead­ers; it was characteristic of Rome's close-knit and hierarchic sociopolitical order that ordinary Romans should defer to men of rank, reputation, and proven merit.³⁶ If not a formal covenant, it was by and large a customary one and was continually reinforced at the tribal level, as we shall see in chapter 5.

Lending a certain tension to tribal attachments in first-century Rome was the sheer number of groups. Cutting across the immediate relationships among Roman tribesmen for instance were others, derived from the membership of tribesmen in other clusters. Some clusters were incorporated within, some inter­sected with, and some were altogether outside the tribe. The voting cen­turies, incorporated within the tribes, provide a significant case in point, as we shall see in chapter 5. City associations (collegia and vici) in Rome and in other towns in Italy also held Roman tribesmen. In Cicero's day, as a result of the grant of citizenship to all Italians in 90, tribesmen held a range of regional and ethnic identities. In short, within their tribes Romans were arranged in var­ied and overlapping groupings along a descending spiral of rank and wealth.

When a Roman stood alone before his tribe's supervisor at the voting bridges, or perhaps especially then, he was first and foremost a tribesman. The tribal loyalty is assumed by the custom of formally naming a man to vote first in a tribe selected by lot as the principium, or “first tribe.” In this context belong those shadowy individuals in Rome's political history—Q. Fabius Q.f., A. Gabinius Capito, and Sex... L.f. Virro, of unknown nomen—who at one time or another were chosen “first voter” in the tribe selected by lot to vote first in a lawmaking assembly.³⁷ Fabius, Gabinius, and Virro, among a scant handful of reported first voters, owe their slender renown to the chance survival of the formal headings attached to laws enacted by the assemblies in question.³⁸ Here, in terse language, stands the record of each man's achievements: he “cast the first vote of endorse­ment for his tribe” (pro tribu... primus scivit), which was the first tribe to vote (principium fuit).³⁹ The remaining members of this very small group, Cn. Plan­cius and C. Fidulius, are hardly less shadowy than their epigraphic comrades even though they emerge from somewhat detailed narrative reports about lawmak­ing assemblies in 59 and 58.⁴⁰ Yet over our period of interest, thousands of Romans formally cast the first ballot in as many tribal assemblies, and the names of hun­dreds of first voters, engraved on bronze tablets in letters often many times larger than the text of the law itself, greeted the eyes of passersby in the central public areas of Rome.⁴¹ The identities and functions of these men may be hidden from view, but we are clearly dealing with a practice of fundamental significance. Viewed as harbingers of the tribe's collective vote, the ballots cast by first voters were in principle decisive.⁴² For the unspoken acceptance by voters of the lead taken by men of wealth and standing in part determined how the tribe voted.

But needs and interest also played a part and were clearly instrumental in determining which voters from any tribe might converge to form a particular assembly. By way of illustration, consider the audience facing Cicero in 63 as he delivered his oration De Lege Agraria 2. Cicero refers to his listeners directly throughout his public speeches. He addresses them regularly as Quirites and populus Romanus; three times he describes them as the plebs Romana (2.5.12, 2.25.66) or the plebs urbana (2.26.70). These terms are relatively unrevealing, encompassing as they do an undifferentiated group of Roman citizens, in the first instance, and in the second, the city dwellers of Rome, equally undiffer­entiated. Who were the individuals behind these terms in the crowd that faced Cicero? Precisely we may never know, especially in view of the substantial increase in voter numbers following the enrollment of new citizens finally, only seven years before, in 70. But some significant amplification is possible, along lines suggested by the fundamental issues that Cicero presented to his listeners in January of 63 and the expectations on which they rested.

Specifically Cicero's speech points emphatically to groups with a keen inter­est in the allocation of Roman resources. The events of 63, when debt was wide­spread and land and resources were very big issues, allow a more precise description. Explaining why the city population of Rome supported Catiline's plans for a coup in that year, Sallust, a historian writing thirty years after the event, began with a commonplace. In times of riot and civil disturbance, he wrote, the plebs live without worry, because poverty is easily maintained.⁴³ The remark exposes the improvident disregard of a bogus leader for the desperation of individuals who have nothing left to lose. What follows in Sallust's monograph on the Catilinarian conspiracy is more explicit: Catiline found support in the city among men who were conspicuous for shamelessness and impudence, men who had squandered their patrimony, men whose dark crimes led them to seek anonymity in Rome, reckless souls and criminals.⁴⁴ The moral high tone of an elite Roman in describing his social inferiors is commonplace in Roman narratives. Here, Sallust appears to resort deliberately to the cliche in order to reinforce the seriousness of Catiline's threat to men of Sallust's class, an impres­sion confirmed several sections along when he notes, contradicting himself, the enthusiastic response that the plebs made to the arrest of several leaders of the conspiracy in Rome. The senator Sallust tended to see the city population as a lowly and undifferentiated group.

Obviously it was not. Sallust himself identified specific reasons for the support that members of the urban plebs gave Catiline, and from these we get a strong sense of the different aspirations of some of the men in Rome that year. There were new citizens who came from communities where access to land was access to life: for these men, remembering how Sulla's soldiers had profited from their commander's victory in Italy in 82, military service was the road to landholdings. There were young men who according to Sallust preferred to live on the public grain dole and the handouts of patrons in Rome than farm in rural Italy. Finally, there were men who had lost their property and status in 82 and the sons of such men.⁴⁵ What they all have in common is membership in rural tribes and a fundamental desire for restitution and subsistence. To all these men Catiline offered hope. It was noteworthy to Sallust that at the battle near Pistoria, Cati­line's final stand with his ragtag army in January of 62, not a single soldier ran. In its aspirations the crowd listening to Cicero in 63 was quite like the men Sallust listed among the urban supporters of Catiline later in the same year. A few desperate men, in particular the men proscribed or dispossessed by Sulla or their sons and some of the old Italian allies, formed the core of disaffection on which Catiline rested the success of his coup. For a larger group of rural tribes­men in the same year the driving interest was simply access to land resources.

Clearly, interest in a particular issue determined group attendance and participation in both the lawmaking meeting and assembly. The varied descrip­tions of voters and others present at meetings, most often accompanying ancient reports of land redistribution or similarly charged issues brought to the people for their decision, indicate that participants were generally specific to the issue. The voters who approved the lex Sempronia in 133, for instance, were predom­inantly rural tribesmen interested in land redistribution. And, since the dispo­sition of ager publicus was a burning concern to landholders without the franchise, too, the crowds present also included Italians who could not vote.⁴⁶ Again, in 103, the voters who accepted the colonization bill of L. Appuleius Saturni­nus included discharged soldiers, who had served with C. Marius in North Africa and southern France. Given the enormous diversity within the population of Roman Italy, which embraced a wide range of statuses and holdings, from cit­izen to noncitizen, elite to nonelite members, and rich to poor, different peo­ple found different points of entry into the lawmaking process (as we might expect) and had different motivations for participating. But always they were present as fragments of various groups.

In turn, each individual voting assembly presented a uniquely complicated and immediate set of issues for the participants. When meetings were held and assemblies convened, always for specific purposes, voters interested in specific issues attended these specific meetings and assemblies. As our sources confirm, different crowds or groups of varying size regularly turned out for these occa­sions: An ever changing population of participants rallied for the public debate representing different groups who responded, in different numbers, to the vastly different issues that were presented to the people. Romans voted, in other words, when it was in the interest of their group—or more precisely the group to which they owed the greatest allegiance at the time—to vote. Not surprisingly, the Roman voting population was as fluid and changeable as the groups that con­stituted it and the issues with which they wrestled.

The political leaders of Rome fully recognized the importance of groups in Roman voting. No political leader spoke as an individual in the Senate House or in the Forum. He like all Romans belonged in a group. A leader gathered in his person as in his comportment and actions the collective expectations of a throng of dependents, friends, relatives, and supporters who encircled him at various distances of intimacy, need, and support. Although such a man held or had held high office when orating to the people in particular, the ties linking him to individuals in the audience were highly personal, usually antedating office, and derived from a range of associations including inherited links to a region or community, the experience of military command in combat, and service in legal matters. In every public arena, every action carried out by a Roman leader was the distillation of the desires and hopes of various clusters of people whose expectations were articulated by the leader. This was his essen­tial function in all areas of life, religious, economic, political, and military. Roman leaders' own political futures depended on the demonstration of abil­ity and success that only popular support could affirm, encourage, and promote.

Indeed, leaders were absolutely dependent for their positions in society on their varying abilities to articulate the will of the people. To the extent that they could do this, leaders garnered the support of different groups among the Roman population.⁴⁷ Reporting the land redistribution scheme of Ti. Gracchus in 133, the biographer Plutarch notes that Ti. Gracchus drafted his land meas­ure in 133 partly in response to the express desire of poor Romans and Ital­ians to possess land.⁴⁸ The numbers of rural inhabitants of Italy who traveled to Rome confirmed Gracchus's success in correctly discerning the will of the people. The success of the lawmaking efforts of M. Licinius Crassus and Cn. Pompeius Magnus in 70, C. Cornelius and A. Gabinius in 67, and C. Julius Caesar and P. Vatinius in 59 is tied not only to the presence of recently dis­charged soldiers in Rome and the attachments between the law sponsors and those same veterans, formed in the camp and on campaign, but more so to the sponsors' ability to articulate a set of critical needs that appealed to the broad­est number of groups.⁴⁹ There were legitimate needs, legitimate complaints and solutions, and officeholders who represented them. For every public law pro­posal, for every approved or rejected bill, there were voters whose support or opposition depended on the highly complicated relationships linking the var­ious groups to which they belonged, the lawmaker, and the issues.

A Roman voter therefore held various identifications within a complex mesh of status, economic, occupational, and family clusters, expressed in a certain degree of patterned behavior. Romans, in particular political leaders, developed a sense of the predictability of a Roman voter's behavior as a result of member­ship in these groups. From the lawmaker's perspective, most critical among all groups were the tribes whose responsibility it was to determine the fate of his bill. Within his own tribe the lawmaker was (ideally) recognized, esteemed, and persuasive. His tribesmen as well as the diverse crowd behind him expected him to field their interests.⁵⁰ As senator or elected officeholder he also had for­mal attachments to Romans in every tribe. Thus, all the tribes occupied his political attention. Mediating between the lawmaker and the thirty-four other tribes were his political associates, senators, and elected leaders. When Plutarch records that Lucullus was voted a triumph in 66 only because “the most impor­tant and most powerful citizens mingled with tribes and persuaded the people to let him triumph,” undoubtedly each man headed for his own tribe.⁵¹ His rank and authority carried a special weight for his own tribesmen. Similarly, when a law sponsor named a first voter in a tribe selected by lot, he chose a man of repute who not only backed his law but appealed to a sizable number of voters within that tribe. In every tribe were found reputable men closely asso­ciated with one political leader and at odds with another.

Given the complexity of the Roman sense of identity and the controversial nature of most of the issues introduced at public lawmaking sessions, it is obvi­ous that the behavior of voters expressed through their tribal or other leaders was never entirely predictable. The extent to which law sponsors labored to make a case for their bills confirms this. Nor did every first voter, who presum­ably always voted in support of a bill, invariably rally his fellow tribe mem­bers behind him. The reasons for this are obscure, for we are never appraised of the intricate connections binding the Romans present at any assembly that derived from their membership in various clusters, including the tribe. But our Roman at the voting bridge was undoubtedly juggling other loyalties as he cast his vote. Individual attachments to or within various groups were mu­table, especially in the first century.⁵² Clearly, the shifting arrangement and membership of sundry groups making up society were critical in determining not only who voted in public lawmaking assemblies but how they voted.

Hence leaders might try to form a predictable crowd of voters, from their perspective, for any given assembly. Illustrations of the care taken by both law sponsors and others to ensure the attendance or nonattendance of specific people and groups are numerous. Voters were sometimes brought great distances to Rome, or assemblies were convened when certain groups were already present in Rome—discharged soldiers above all.⁵³ The presence in Rome in 133 of a resolute crowd of Romans and Italians played a crucial role in deter­mining Ti. Gracchus's course of action in the face of opposition to his proposal from other magistrates and senators. In 122, when C. Gracchus proposed a statute giving Roman citizenship to Latins and Italian allies, the Senate decreed that only those with the right to vote should stay in the city or closer to the city than forty stades while the proposal was being discussed and voted.⁵⁴ Even the presence of nonvoters in large numbers was viewed with suspicion. What Roman leaders could be sure of at all times, though, was a varied crowd of vot­ers ready to hand. The practice of selling grain at a fixed, low price in Rome for Roman citizens introduced by C. Gracchus and modified by various officeholders over the next one hundred years confirms the Roman leadership's recognition of the constant flow of citizens into and out of Rome.⁵⁵ By the Gracchan period, elected officeholders and the Roman Senate itself recognized the political implications of the large numbers of temporary and permanent migrants to the city of Rome.

Although our sources report the existence of specific groups, rarely do they report numbers in attendance at assemblies or the proportional size of a partic­ular group relative to another that was present. Only when consensus was over­whelming do we get some indication of crowds so large they overburdened the city's temporary housing. Why? Clearly numbers were of limited importance, for the passage of law was determined not by numbers but by a customary and divine process in which elite members of society succeeded or failed in discerning the sense of the voters present on a specific issue. This was achieved when each tribe weighed in with its own sense of what should be done, presaged usually by the vote cast initially by a first voter, a reputable man selected by the sponsor, of a first tribe selected by lot. The practice takes for granted that all tribesmen pres­ent for the vote will fall in line behind their social betters to make the right deci­sion whether in electoral or lawmaking assemblies. A majority of tribes expressing themselves did not mean that a decision was reached by a majority per se—espe­cially when some tribes held more members than others—but that a majority of tribes reflected the accepted Roman view of what should be. Evidently, Romans had an intuitive sense of the representative size of a sufficient group.

Numbers alone, to reiterate the point, were unimportant. Rome was no democracy, except perhaps in a Roman sense: a voting event was one in which the gods, the Roman people, and their leaders came together to discern the sense of the Roman people on a particular issue that drew a particular crowd interested in that issue.⁵⁶ No wonder the Romans regarded leges saturae, bills addressing disconnected issues, as antithetical to the process of discerning the people's will. No matter how many voters cast their ballots, all understood that the final decision represented the sovereign will of the entire Roman people.⁵⁷

BALANCE AND CEREMONY

All assemblies in Rome were convened and directed according to set proce­dures scrupulously executed. Consider this set of instructions from an old hand­book on consular procedure, preserved by Varro, informing consuls on the proper way of convening the centuriate assembly.

He who is about to summon the citizen-army shall say to his assistant, “Gaius Calpurnius, call all the citizens hither to me with an... ‘invita­tion.'” The assistant speaks thus: “All citizens, come ye hither to the judges, to an invitation meeting.” “Gaius Calpurnius,” says the consul, “call all the citizens hither to me, to a gathering.” The assistant speaks thus: “All citizens, come hither to the judges, to a gathering.” Then the consul makes declaration to the army: “I order you to go by the proper way to the centuriate assembly.”

(Ling. 6.86-88; Loeb trans.)

Vividly detailed in these descriptions are the scrupulosity and precision char­acteristic of Roman public life in all areas. Whether in the enactment of ritual or the conduct of assemblies, the Romans adhered to prescribed patterns of per­formance and speech.

Today, the patterns of Rome's lawmaking process seem peculiarly cumber­some. Promulgation (promulgatio), a formal declaration of intent, required the formal display of a proposal or “query” (rogatio), publicly and in writing; the formal recital of the proposal by a herald; and the declaration of the date of the voting assembly. These ceremonial events initiated and concluded the public stages of the production of law.⁵⁸ Over the next three Roman weeks (trinund­inum) or more the display stood in the Forum, and at each of the three required meetings, held on market days (nundinae), the bill was recited.⁵⁹ On the day of the assembly, the law sponsor—the one who “asks the question” (rogator)— called the people to a meeting at which the proposal was debated and posed the question to the people: “Do you desire and order it to be?” (velitis iubea- tisne). The bill was read, as we saw earlier, for the last time. If no magistrate vetoed the bill, and if no senator or magistrate announced a religious flaw in the proceedings to prevent the bill, the sponsor called his assistant to dissolve the meeting and reconvene the people in their voting units, using the formu­laic language placed in the mouth of P Servilius Rullus in our opening para­graph: “The law has been read.” So Cicero concluded his hopeful set of regulations for a rejuvenated Rome, bringing an end to the imaginary recital.⁶⁰

In such time-ordained patterns, which governed lawmaking assemblies as well as all other assemblies in the late Republic, the legitimacy of actions taken by the Roman people was firmly grounded. Only a law properly displayed and recited before the vote was a valid law. Only an assembly properly convened and conducted in accordance with customary procedure was a “legitimate” assem- bly.⁶¹ Only public law generated in such an assembly was legitimate.⁶² Confir­mation of legitimacy is conveyed in the testimonial to the lawful conditions of its passage introducing every statute generated in an assembly of the Roman people: “Titus Quinctius Crispinus, consul, duly asked the people if they wanted this law and the people duly accepted it.”⁶³ The Roman understanding of the Latin iure, meaning “lawfully” and rendered in English as “duly,” is clear. The assembly was rightfully convened and conducted, in accordance with procedures established by custom and reiterated by enactment; the lawmaker rightfully pre­sented his proposal, again in accordance with accepted procedures established by custom and enactment; and the people rightfully responded.

Closer examination of the constitution of lawmaking rightfully performed suggests that iure entails, to an as yet hidden degree, the affirmation of a long-standing arrangement between Rome and her gods that was carefully man­aged. Many of the complex procedures found in public lawmaking directly involved the gods in decisions taken by the Roman people. Even the lottery, as Lily Ross Taylor notes, placed the selection of the first tribe or first century to vote in the hands of the gods, although the precise relationship between the lot and Roman religion is uncertain.⁶⁴ More familiar are the requirements to meet in an inaugurated spot (where a line of communication with the gods existed), to take the auspices, and to watch for bad omens. The centuriate and full tribal assemblies met in consecrated areas, where it was permissible and pos­sible for the convening consul or praetor to take the auspices prior to con­vening the assembly. Plebeian tribal assemblies did not do so, necessarily, because tribunes did not have the capacity to take the auspices. Nonetheless, the ple­beian tribal assembly did sometimes meet in the precinct of the Capitoline temple, and tribunes did consult the augurs. Such procedures were essential no matter the purpose for which the assembly had been convened in order to, com­mon wisdom held, ensure that the proceedings had Jupiter's protection.⁶⁵

Whether divine sanction suffices as a comprehensive explanation for all such practices and procedures is unresolved.⁶⁶ On a pragmatic or functional level, it is clear that divination in all its forms (taking the auspices or extispicium) allowed the Romans to decipher the silence of the gods on particular matters of impor­tance. Prayers, vows, and sacrifice, equally important ritualized actions, allowed the Romans to regulate their divine alliance. If the signs were foreboding or if the actions were incorrectly performed or flawed—for instance, if the priest stum­bled when repeating the words of the prayer recited to him by his attendant or if a noise interrupted the prayer—the repetition of the performance was essential. A blunder in the performance of ritual action or conduct could be quite minor by modern standards—as for instance when a flamen's ritual cap (apex) fell off and the Romans found it necessary to divest the priest of his sacred position.⁶⁷ Likewise, the augur's reading of the signs was absolutely necessary: if the augur pronounced “another day” (alio die) the scheduled assembly was postponed. The college of augurs as a result came to hold the authority to declare enactments ille­gitimate if in their view statutes had not been properly enacted with respect to the gods. The relationship between men and the gods tolerated no uncertainty.

Similar concerns appear to surround some of the ceremonial, that is nonre­ligious, procedures of assemblies.⁶⁸ In the late Republic, no assemblies were held before a lengthy and formal airing of bills, candidates, or legal causes. The law proposal had to be publicly displayed. It had to be read. The veto, which took the form of physical intervention by a tribune at a particular moment (when the herald began proclaiming the text of a proposed law), had to termi­nate the course of the law. Except for the tribune's veto, these procedures did not necessarily involve the gods, but they are similarly ritualized acts and, given contemporary reactions, much of the same effect was felt if they were obstructed.⁶⁹ Whether occurring in lawmaking, electoral, or juridical arenas, any mistakes, oversights, or obstructions to these procedural requirements vitiated the per­formance in much the same way it did in the case of religious ritual. Precision of performance and speech rendered any event and its outcome, whether the issue was law or leadership, legitimate. This fact made the procedural require­ments of all such occasions, especially lawmaking occasions, as we shall see in chapter 9, highly susceptible to disruption.

But if the various religious and ceremonial procedural requirements of assem­blies to some extent reflected a need for control and predictability in the sphere of divine and human interaction, to a greater extent they secured, over more than four hundred years, the foundations of Rome's uniquely representative political character. Think for a moment about the functions of the lottery that determined the voting order of tribes.⁷⁰ Inasmuch as Rome's thirty-five tribes held fixed positions on a censorial roll, the selection of a tribe to vote first in a tribal assem­bly decided the order in which all the remaining tribes would vote.⁷¹ That the medium of selection was an arbitrary lottery meant that no one knew in advance which tribe would vote first or the order of voting thereafter. Every tribe had an equal chance to be the first tribe, as determined by the gods, specifically Jupiter, not by men.⁷² Random selection in effect provided the basis for open and fair deci­sions of the Roman people, reached by vote, in which every voting unit had an equally random and divinely sanctioned chance to participate. Given the prin­ciple of group voting, the Roman lottery bears little comparison with the deliber­ately democratic use of sortition in fifth-century Athens. Only the Roman lottery, however, operating in an increasingly large-scale society, was instrumental in con­serving an effective popular government, which diffused effective power among all thirty-five tribes. When properly handled, the gods ensured the success of the Roman people, but men always had to work at making success possible. Given its overtly conservative nature, the system proved extraordinarily flexible over time.

To an even greater extent, therefore, such procedures assisted in creating, recreating, and somehow fixing the order of Roman society along the lines of a perceived ideal. When properly performed they channeled the political ener­gies of ever expanding numbers of Roman citizens into long-standing tribal and other structures. They buttress the Roman certitude that the production of law or the election of leaders was not possible without the participation and com­mon sanction of the Roman people expressing themselves as members of their voting unit. Hence, the formal emphasis on publication and information in the lawmaking process in particular was profound.⁷³ Not only were all public stages of the lawmaking process directed to the Roman people, but great care was taken to guarantee public access to the lawmaking process, through the metic­ulous communication of the full text of proposed laws to them, by posting writ­ten notices in the Forum and publicly reading laws before the voting assemblies were convened. For a statute was legitimate only when it was enacted with full publicity in the procedurally prescribed manner: proposals were publicly posted and read for a period of three Roman weeks, and arguments for and against laws were aired in public meetings. Once enacted, laws were engraved on bronze tablets under a formal heading that declared the public conditions in which the people had endorsed them, and the tablets were displayed in Rome's cen­tral areas.⁷⁴ In brief, the legitimacy of statutes, as of all actions taken by the Roman people and their elected officials, derived from the divinely sanctioned, unencumbered expression of the sovereign will of the Roman people. All the world understood the key role of the Roman people in public lawmaking events.

CONCLUSION

Cicero's blistering attack against M. Antonius in 44, circulated in the orations titled Philippics, returns time and again to the illegitimacy of the decisions Anto­nius forced on the Roman people as sanctioned law following the assassination of Julius Caesar. Laws were presented to voting assemblies even when thun­der resounded all around; laws were voted by assemblies from which the peo­ple had been excluded; laws were even engraved before they had been publicized for the requisite twenty-seven or more days (trinundinum). In Cicero's resolute list of improprieties, the fundamental requirements of legitimate law are crys­tal clear: the bill, correctly promulgated in Rome for the period of time fixed by law; the gods, present and suitably disposed to the proceedings; and above all the people, convened as an assembly in the proper setting in Rome and sum­moned to cast their ballots openly and unhindered.

As a central process in facilitating the functioning of Roman society, pub­lic lawmaking assemblies reflected many of the most fundamental features of Roman life over a very long time. In the first century no less than the fourth, the officeholders who proposed the law and guided the discussion were the same group of leaders who managed the society, whose prestige at the session reflected their prestige in society. The necessity for divine approval on the times for their performance, the forms of the rituals, and many of the formal acts that took place during each stage reflected the importance of religion, constant across our period. The elaborate debates and the complicated voting procedures required to discern “the will of the people” reflected the authority and importance of Roman citizens. Voting itself was clearly the product of a society that placed a great deal of importance on group membership and customary procedures. To engage in the elaborate rituals and procedures involved in the entire public lawmaking process, participants, be they leaders or members of the majority population, had to possess time, energy, and an intuitive knowledge of rites, rules, principles, and traditions. Whether religious or practical in motivation, strict formalities and conventions shaped every step leading to the production of law. Always in lawmaking assemblies, a delicate balancing act was staged by the leaders of Rome, who tried to measure the desires of the Roman people and balance them off with the religious dimensions of all human activity and in turn deal with real problems. The flexibility in the system was provided by the shared religious life of the Roman people and their leaders and the common recognition of what the gods required. The striking recognition and general observation of these features, constant across our entire period of study, under­score the extent to which the lawmaking process reflected the values and assump­tions of the society at large. We might wonder how this continued to be possible as the scale of Roman society increased.

Around 130 in Rome, on the occasion of a much-heckled public speech about land reform, Scipio Aemilianus reportedly rebuked a crowd of haranguers with the charge that they were only the “step-children” of Italy. His insult is commonly understood by modern scholars to mean that Scipio's audience that day was per­ceptibly foreign in its composition: its members, drawn from the urban popula­tion, were neither Italian, Roman, nor Latin. Instead, Rome had by then become a city populated mostly by ex-slaves drawn from the conquered lands of the east­ern Mediterranean—complete outsiders to the traditional Roman system. While this is inherently unlikely, certainly a man did not have to be Roman to be a Roman citizen. By 130, Latins, Italians, and even foreigners had been randomly entering the citizen population for over two hundred years. Within fifty years, all Italy with its diverse and distinguishable groups would be Roman. But to a leader like Scipio the “Roman-ness” of these new citizens was suspect. Confronted by such hints of transformation in the groups constituting the Roman population when penetrated by outsiders, we are entitled to wonder how public processes such as lawmaking, which certainly demanded intuitive understanding of the various stages from all participants, continued to unfold purposefully and effectively.

Given the expanding size of the Roman citizen population, especially in the first century, the increased resort to public lawmaking assemblies in Rome dur­ing the same period is remarkable. The detailed and time-consuming public law proposal, the complexity of the generally understood procedures at all stages, the implicit acknowledgment of divine oversight, and the respect for social standing all underscore the immensity of the Roman achievement in absorb­ing so many conquered peoples into such a system. One of the best indicators of the high level of absorption achieved is the degree to which outsiders par­ticipated in and recognized the proceedings at public lawmaking assemblies. This was not an amalgamation that had taken place overnight. In part 2 we turn to lawmaking during the growth of Rome to explore the avenues that led to the wide-scale acceptance of Rome's public lawmaking process.

Notes

1. The best description of the arrangements in voting assemblies is provided by L. R. Taylor, Roman voting assemblies from the Hannibalic war to the dictatorship of Caesar (Ann Arbor, MI, 1966), 35-84, esp. 70-78, on tribal lawmaking assemblies. See also Staveley 1972, 143-76; and G. W. Botsford, The Roman assemblies (New York, 1909).

2. Custodes: Mommsen, R.St. 3.406.

3. It was far more cumbersome in Rullus's day than it had been before the intro­duction of the written ballot ini37. Until that innovation, voters had formed in lines and each voter walked in turn from the head of his line to the pontes, where the respon­sible tribal leaders, the rogatores, simply asked how he voted and recorded the response.

4. Cic., Leg. 3.38. This is believed by some to be a lex tabellaria, or ballot law: A. Lintott “Political history, 146-95 BC,” CAH 9, 2d ed. (Cambridge, New York, New Rochelle, Melbourne, and Sydney, 1994), 86; cf A. Lintott, “Electoral bribery in the Roman republic,” JRS 80 (1990): 7. See Taylor 1966, 39-46, for the probable arrange­ments.

5. I omit here a fourth assembly, the curiate assembly, whose functions and mem­bership were restricted.

6. Taylor i966, 6i-62 with n. 7.

7. Time was a critical factor, according to modern historians, in the more frequent recourse to the tribal assemblies for elections, where the units cast their votes simulta­neously. It took far less time to tally and announce thirty-five tribal votes than i93 cen­turiate votes. The voting process in the centuriate assembly was eventually speeded up by the construction of the “sorting pens” known as the Saepta Iulia in the Cam­pus Martius, completed early in the reign of Augustus in 26. L. Richardson, Jr., A new topographical dictionary of ancient Rome (Baltimore and London, 1992), 340-41. The voting process in electoral assemblies has been reconstructed in Taylor 1966, 47-58.

8. See chapter 1.

9. Declarations of war voted by the people: J. Rich, Declaring war in the Roman republic in the period of transmarine expansion (Brussels, 1976), 13-17. Rich identifies eight soundly attested “war votes” between 264 and 44.

10. See chapter 7, n. 1.

11. It was initially an increase in principle only, because at least two decades passed before all of the new citizens were registered, the essential prerequisite to full use of the citizen's franchise and without which the decision to grant citizenship had little meaning. Chapter 8 addresses various efforts to restrict the voting rights of new citizens.

12. Livy 7.16.8.

13. Area Capitolinus: S. Platner and T. Ashby, A topographical dictionary of ancient Rome (Oxford, 1929), 48.

14. Comitium: F. Coarelli, Il foro romano: Periodo arcaico (Rome, 1983), 148. Forum: Varro, Rust. 1.2.9:... primus populum ad leges accipiendas in septem iugera forensia e comi­tio eduxit; cf. Cic., Amic. 25, 96.

15. R. MacMullen, “How many Romans voted,” Ath. 53 (1980): 454-57; Taylor 1966, 52-54.

16. But, as has been pointed out, the voting units voted consecutively, not simul­taneously, in legislative assemblies; hence the voters need not all be present in the vot­ing enclosure at the same time: Taylor 1966, 128-30 n. 26, summarizing conclusions reached by P. Fraccaro, “La procedura del vota nei comizi tributi romani,” in Opuscula 2 (Pavia, 1957), 235-54, original edition, Atti della R. Accademia delle Scienze di Torino 49 (1913-14): 600-622; cf. A. Yakobsen, Elections and Electioneering in Rome (Stuttgart, ¹999⁾, 49 ⁿ. 7⁸.

17. Numbers: Cicero's claims on various occasions that, for instance, the votes of tota Italia made his return possible or some laws were approved although the requisite minimum of voters were not present to fill the tribes (discussed later), make the point negatively.

18. Because proportionally few Romans could have voted at every assembly, mod­ern scholars long supposed that popular participation in Roman government was severely limited and relatively unimportant: see, for example, M. I. Finley, Politics in the ancient world (Cambridge, 1983), 84-92. The recognition that the people did have a significant voice has gained ground over the last twenty years: Williamson 1984, 1990; see also note 56, this chapter.

19. An earlier version of this section was first published as part of Williamson 1990.

20. See in particular the presumptions in Syme 1939 and Taylor 1949.

21. The admonishment comes in the introduction to a popular play, Amphitro 64-74, esp. “sive qui ambissent palmam histrionibus / seu quoiquam artifici (seu per scriptas lit­teras / seu qui ipse ambisset seu per internuntium), / sive adeo aediles perfidiose quoi duint, / sirempse legem iussit esse luppiter, / quasi magistratum sibi alterive ambiverit.” The alliteration of the underlined words and the term sirempse are reminiscent of legal Latin. See M. McDonnell, “Legal language in Plautus,” AJP 107 (1986): 564-76.

22. On this treatise see most recently Lintott 1999, 225-32.

23. Cic., Leg. 3.4.11 and 3.19.43.

24. At the other extreme, C. Gracchus proposed a measure in 122 to replace the current hierarchic voting order of the centuries in the centuriate assembly with a sys­tem of randomly calling centuries from all the classes to vote. Again, the measure was never made law. Sall., [Ad. Caes.sen.] 2.8.1; Mommsen, R.St. 3.294.

25. Sources in MRR 1.225.

26. Sources in MRR 2.144-45.

27. Persa 68 ff.

28. The interpretation of Roman voters presented here, namely, the voting popu­lation conformed to the structures of life and movement in Italy generally, rests on my arguments in chapter 6 about the city of Rome. It is more commonly believed that the largest group of steady voters were the small shopkeepers (tabernarii) and craftsmen (opi­fices) in the vicinity of the Forum and former slaves resident in Rome—the “plebs con­tionalis,” as defined by Meier, which is very evident in the ancient accounts of political life and voting in Late Republican Rome. Otherwise only wealthy Romans who had the time and interest regularly came to Rome to vote from outside the city. As Taylor put it: “The largest number available at all the comitia were from the men always on hand in the four urban tribes, which included the lower population of the city and all the freedmen.” Taylor 1966, 54. Plebs contionalis: C. Meier, Res publica amissa: Eine Studie zu Verfassung und Geschichte der späten romischen Republik, 2d ed. (Wiesbaden, 1980), 114-16; Vanderbroek 1987, 86-93; Pina Polo 1996, 130-32. Most recently Millar has attempted to refine the identities of these Roman voters with reference to locales and “zones” in and around the city: Millar 1998, 13-48, esp. 28-30.

29. Lawmaking of Vatinius: chapter 9.

30. Group vote: Staveley 1972, 133-42. I return to the mesh of tribe and century in chapter 5.

31. Otherwise Cicero's charge that so few tribesmen attended an assembly voters had to be drafted into some tribes wouldn't make sense (whether he was exaggerating or not).

32. Or the majority of any group in any assembly, whether defined by tribes or cen­turies (the differences between the egalitarian tribal and hierarchic centuriate assem­blies notwithstanding).

33. Sodales: J. North, s.v. “sodales,” in OCD³, 1420, and briefly Lintott 1990, 9. Professional associations in Rome: see chapter 6.

34. Mommsen, R.St. 3.190-92; cf. Taylor i960, 15, 16, 74. See chapter 5.

35. Mommsen, Die romischen tribus in administrativer Beziehung (Altona, 1844), 23.

36. Similar links enmeshed tribesmen in each of the four urban tribes, whose lead­ership and membership are far more discernible to modern historians than those of the rural tribes, especially in the Late Republic. See further on the urban tribes and their leadership in chapters 6 and 7.

37. First voters: Staveley 1972 164-69; C. Nicolet, Le metier de citoyen dans la Rome republicaine (Paris, 1976), 383-85; J.-C. Dumont et al., Insula sacra: La loi Gabinia-Calpur- niade Delos (58 av. J.-C.) (Rome, 1980), 53-56; J. Linderski and A. Kaminska-Linder- ski, “A. Gabinius A.f. Capito and the first voter in the legislative comitia tributa,” ZPE 12 (1973): 247-52.

38. The lex Agraria of 111, the lex Gabinia Calpurnia de Delos of 58, and the lex Quinctia de aquaeductibus of 9, respectively. Discussion of these and other testimonia are provided by Dumont et al. 1980, 53-56.

39. Formula: Dumont et al. 1980, 53-54.

40. Plancius: Cic., Planc. 35; Staveley 1972, 165 with n. 320. Fidulius: Cic., Dom. 79-80; Stavely 1972, 166 with n. 322. See also Dumont et al. 1980, 54-55.

41. Bronze tablets engraved with law: C. Williamson, “Monuments of bronze: Roman legal documents on bronze tablets,” CA 6 (1987): 160-83; and C. Williamson, “The display of law and archival practice in Rome,” in Acta colloquii epigraphici latini, ed. Heikki Solin, Olli Salomies, and Uta-Maria Liertz (Helsinki, 1995), 239-51.

42. Staveley 1972, 168. First voters also served as guarantors of the assembly results: Nicolet 1976a, 383; Dumont et al. 1980, 53; Williamson 1995, 239-51.

43. Sallust, Cat. 37.3.

44. Sallust, Cat. 37.4-5.

45. Sallust, Cat. 37. 6-9.

46. See chapter 1, note 11.

47. See Pina Polo 1996, 140-50, and Yakobsen 1999, 65-111, for different assess­ments of a clearly very complex relationship.

48. Plutarch, Ti. Gracch. 8.7.

49. Soldiers as voters: Gruen 1974, 377-78.

50. The idea that elected officials sponsored laws, paid citizens to vote, or rearranged tribal membership in order to win clients misses the complexity of the relationship between Roman leaders and the majority population: Taylor i960, 133-38, esp. 137 (Ap. Claudius Caecus). Cf. Eckstein 1987, 10-11 (C. Flaminius).

51. Plutarch, Luc. 37.1-2.

52. See chapter 7.

53. Voters from rural Italy: Taylor i960, 47-68, 79-131; cf. Nicolet 1976a, 391-401; cf. Millar 1998, 29 (voters from Gallia Cisalpina).

54. Appian, B.C. 1.23.

55. See chapter 6.

56. The term “democracy,” as understood by ancient Greeks or twentieth-century historians, inadequately describes the Roman political experience. Nonetheless, as the only term available, it has provided a starting point for numerous efforts in the past twenty years to examine anew the political character of Rome from a Roman perspec­tive and in particular to assess the “democratic” element of the Roman government structure. See in particular F. G. B. Millar, “The political character of the Roman repub­lic,” JRS 74 (1984): 1-19; F. G. B. Millar, “Politics, persuasion and the people before the social war,” JRS 76 (1986): 1-11; F. G. B. Millar, “Popular politics at Rome in the late republic,” in Leaders and masses in the Roman world, ed. I. Malkin and Z. W. Rubin­sohn (Leiden, New York, and Koln, 1995), 91-113; Millar 1998; A. Lintott, “Demo­cracy in the late republic,” ZRG 117 (1987): 34-52; and J. North, “Democratic politics in republican Rome,” Past and Present 126 (1990): 3-21; cf. Williamson 1984. Discus­sion of the debate is provided in M. Jehne, ed., Demokratie in Rom? Die Rolle des Volkes in der Politik der romischen Republik (Stuttgart, 1995).

57. The idea that whoever was present to vote represented the entire citizen pop­ulation has been adopted somewhat hesitantly by Millar 1998, 196; cf. 45, 48.

58. From Cicero's description in Leg. Agr. 2.5.13 (“legem contionemque expectabam: lex initio nulla proponitur, contionem in pridie Idus advocari jubet”) and 2.5.13 (“Aliquando tandem me designato lex in publicum proponitur”) it appears that the posting was expected to coincide with a meeting because the significance of his remarks is that it did not. On the introduction of the written display see chapter 7.

59. Publication on market days (nundinae): Macrobius 1.16.34. The stipulated ele­ments of oral publication are a public meeting (contio) and repetition on three occa­sions (in trinum nundinum), i.e., in three public meetings. However, we only ever hear about the performance that concluded the public meeting before the voting assembly. Length of trinundinum: A. Lintott, “Trinundinum,” CQ 59 (1965): 281-85; cf. Lintott 1999, 44 with n. 20; Mommsen, R.St. 3.375-76; A. K. Michels, The calendar of the Roman republic (Princeton, 1967), 191 ff. (restating Mommsen's view that it was a set interval of time, incorporating a fixed number of days).

60. Cic., Leg. 3.11.

61. Assemblies were called by proper magistrates only on appropriate days, desig­nated dies comitiales, and held only during the hours of daylight. On the calendar of days see Michels 1967. On all matters related to procedure in voting assemblies, the best guide in English is Taylor 1966; cf. Staveley 1972 and Botsford 1909.

62. Hence Cicero complained in 44 that the laws Antony enacted that year were not legitimate: see comments at the end of this chapter.

63. RS 2 No. 63, ll. 1-4: T. Quinctius Crispinus consul populum iure rogavit populusque iure scivit.

64. Taylor 1966, 73.

65. Taylor 1966, 7.

66. Purposes of divination: J. North, “Diviners and divination at Rome,” in Pagan priests: Religion and power in the ancient world, ed. M. Beard and J. North (Ithaca, NY, 1990), 51-71, esp. 60-65.

67. Livy, Epit. 54.

68. The distinction between ceremony and religious ritual was often blurred in Rome: D. J. Gargola, Lands, laws, and gods: Magistrates and ceremony in the regulation of public lands in republican Rome (Chapel Hill and London, 1995), 5-6.

69. The stylistic features of statutes also reflect the concern for recognizing and maintaining a preexistent world. The characteristically precise language and phrasing of enactments is a byproduct of the concern for precision. From a modern perspective the language and phrasing are very legalistic and remarkably modern. But the motive force behind the Roman style of lawmaking was uniquely Roman: Williamson 1984, 102-23.

70. Sortition in tribal assemblies: Taylor 1966, 70-74. In Rome generally: Staveley 1972, 230-32. See also G. Forni, “Considerazioni sui comizi romani,” Rendiconti di Isti­tuto Lombardo, Accad. di scienze e lettere 106 (1972): 543-66.

71. Order of tribes: Taylor i960, 69-78.

72. Not only was Jupiter the presiding divinity at assemblies, but the augurs played a role in the sortition process: Taylor i966, 73.

73. Williamson i984, i2-80, i96-226; Williamson i990, 266-76, esp. 268 and 272; cf. Millar 1998, 45, 115.

74. Williamson i987, i60-i83, and i995, 239-5i.