thrown into an urn (cista) at the exit of each pons. The reckoning of the votes (diribitio) was in the hands of tellers who were sometimes called by the old name rogatores, but were also spoken of as diribitores.1 The cistae were watched by public custodes, and in the case of elections the candidates were allowed to place one guardian at each urn.2

The issue was decided by the vote of the groups. In the assemblies of the curiae and the tribes the voting of the groups took place simultaneously, in that of the centuries in the order which we have already described. In the two former assemblies the order in which the votes of the groups were proclaimed had thus to be decided by lot. The reading (pronuntiatio, recitatio) was continued only to the point at which an absolute majority for or against the measure had been obtained. When sixteen curiae or eighteen tribes were found to have given the same vote, it ceased, and the formal announcement of the result (renuntiatio) was then made by the magistrate. In the comitia centuriata the announcement of the result might be reached without all the centuries being called on to vote, since the result of each vote was proclaimed immediately after the group had given it, and the needful majority might be reached before all the groups had voted. The absolute majority was required in elections as well as in legislative acts, and hence the candidate who gained a mere relative majority was not returned.5

Records of the voting were kept for some time in case the decision should be challenged." The promulgated lex was, as we saw, deposited in the aerarium, as laws which had passed must have been long before this provision was made, but they were kept without order or method, and skilled assistants were required to ferret out the desired enactment.7 Little regular

1 Cic. cum Sen. Gr. eg. 11, 28; in Pis. 15, 36. 2 Plin. H.N. xxxiii. 2, 31; Cic. cum Sen. Gr. eg. 7, 17. 3 p. 253. 4 The first curia or tribe is the principium. See the prescription of the lex Quinctia (p. 242). Even after the ballot was introduced the name of the first voter in a division was specified (primus scivit, 1.c.).

5 Tribus or centurias non explere is said of such candidates (Liv. iii. 64; xxxvii. 47). Cf. Liv. xxii. 35.

6 Cic. in Pis. 15, 36 "hoc certe video quod indicant tabulae publicae vos rogatores, vos diribitores, vos custodes fuisse tabularum." It is the list of votes as certified by the guardians and tellers rather than the separate voting tablets that Cicero here speaks of. But the tablets themselves were kept for a time in loculi (Varro R. R. iii. 5, 18).

7 Cic. de Leg. iii. 20, 46 "Legum custodiam nullam habemus. Itaque eae leges sunt quas apparisores nostri volunt; a librariis petimus."

tribunician rank, and so finally to the lowest grade of all-the ex-quaestors; and it is probable that, in every grade, the rule of consulting a designated magistrate before an ex-magistrate was observed. It is obvious that this procedure, when rigidly adhered to, left the non-curule members of the Senate only an infinitesimal chance of a share in the debate. These had always been known as pedarii, in contradistinction to the curules; originally nominees of the censors, they included after the time of Sulla the former tribunes and plebeian aediles, and the members of quaestorian rank. As they were rarely reached in the debate, they seldom had the opportunity of expressing an opinion, and hence arose the erroneous notion of some antiquarians that the pedarii were given the right of voting but not the power of debate.1 But restrictions of this kind, arising from practice and not from law, were never pressed by the Romans. The repute of a man who had not reached curule rank might exceed that of all the other senators; the principle that would open the lips of a Bibulus and close those of a Cato was recognised as mischievous in certain emergencies, and it was the latter who as tribune elect-that is, as a pedarius-moved the resolution which condemned the Catilinarian conspirators to death.2

From the mass of opinions elicited in the course of the debate, the president might choose any that he pleased to submit to the judgment of the house. The safeguard of the individual senator was here found in the number of the presiding magistrates. As a rule the same order was followed in putting sententiae to te as had been observed in eliciting them; but out of an e of opinions that, with differences of detail, gave the same advice, the president might choose that considered most to the point or best worded as the one Omitted to his council. It was certainly an unusual , in the historic debate of December 5 in the year

p. 210"(Pedarius senator) ita appellatur quia tacitus transeundo ad sententiam probat, quid sentiat indicat.' Cf. Gell. iii. 18. The n cited by Festus is true only so far as it expresses a usual circumstance The name pedarius is probably derived from the absence of the dir (Gavius Bassus ap. Gell. 1.c.).

ii. 35 "Hic tribunus plebis designatus paene inter ultimos us sententiam"; Cic. ad Att. xii. 21, 1 "Cur ergo in sententiam Quia verbis luculentioribus et pluribus rem eandem (i.e. the opinion xpressed by consulares) comprehenderat."

63 B.C., Cicero put to the vote the sententia of Cato in place of the similar but weaker resolutions of the consulares;1 but the consul in this exercise of his discretionary choice was acting well within his rights.

One is sometimes surprised, considering the rigidity of the procedure and the size of the body, at the amount of business that appears to have been transacted at a single meeting of the Senate. But both the rules of procedure and the Roman temperament account for the rapidity of the debate. As regards the former it must be remembered that no motion could be put unless pressed by a magistrate, that there was no distinction between substantive motions and amendments, that alternative proposals, therefore, had not to be submitted in detail to a division, that the carrying of one motion generally swept all sententiae on the same subject aside, that motions for adjournment did not take precedence of other motions, and that the business of the house was not interrupted by this modern device for wasting time. We must also remember that a division in the modern sense of the word was rare, and that it appears seldom to have been necessary to take the numbers of the members who respectively supported or were adverse to a motion.2 The estimate of the voting was in fact going on during the debate; it was the custom of the senator, often without rising, to express a few words of assent to a former speech, and it was not unusual to leave one's bench and take up a position near the man whose opinion one supported. The sense of the house could thus often be taken before the debate had ended; where it was not obvious the consul urged to a division (discessio); 5 even then it is improbable that recourse

3

1 See p. 270 n. 2.

4

2 In a rough estimate of the house (61 B.C.) Cicero mentions 15 on one side of a question, "quite 400" on the other (ad Att. i. 14, 5). On Curio's proposal in 50 B.C. that both Pompeius and Caesar should lay down their commands, 22 dissented, 370 approved (App. B.C. ii. 30). In the latter case there seems to have been no formal division (see p. 268 n. 2); and in both the small numbers may be the result of exact computation, the large either of a guess or of a deduction drawn from an already counted quorum.

3 "Verbo adsentiri" (Sall. Cat. 52); cf. Cic. ad Fam. v. 2, 9 "sedens iis adsensi."

4 "In alienam sententiam pedibus ire" (Gell. iii. 18, 1).

5 The invitation to divide on the sententia was couched in the form "Qui hoc censetis, illuc transite: qui alia omnia, in hanc partem" (Festus p. 261). Hence the colloquial phrase "ire in alia omnia " for negativing a proposal at the Senate (Cic. ad Fam. i. 2, 1).

provision seems to have been made for the publication even of recent measures; but those which were considered important were originally painted on wood and later engraved on bronze, and fixed in temples or other public places.1

1 See the evidences collected by Mommsen (Staatsr. iii. pp. 418-419). It is from this practice that figere and refigere are used of the publication and annulling of laws.

CHAPTER VI

THE SENATE

THE Roman constitution, in the form in which we have left it at the close of the period of its growth, was the chaotic result of attempts to arrest internal revolution, and of feeble and misdirected efforts to readjust the relations of outworn powers. A state in which three popular assemblies have each the right of passing binding acts of parliament, in which twenty magistrates with clashing authority have each the right of eliciting the sovereign will of the people, possesses no organisation which can satisfy the need for which constitutions exist the ordered arrangement of all the wants of civic life by means of a series of uniform acts possessing perpetual validity. It is true that the search for a personal authority is the object of theoretic, not of practical, inquiry. The average man, who is fortunately the power that in the long run determines the shape that politics shall assume, seeks law alone and cares nothing for its source. The vagueness of the ultimate power does not affect him, if the rules it lays down are rigid and binding; he will accept principles in place of persons, and by doing so he proves that he is more scientific than the scientists. But the fundamental principles that lie behind the personal power in a state are too vast in their scope to apply immediately to the needs of human life. They require interpretation by means of legislative and executive authorities; and if these acts of interpretation are to have the character of principles, the dictating authorities must have a fixed character and a permanent life, and there must be some guarantee that they shall submit their judgments to the. accumulated experience of the past. No such character and no such guarantee were to be found in the existing elements of the Roman state which had strict legal recognition. The comitia