N. 7 –
2008 – Tradizione Romana
Suffragiis ferendis in the light of municipal
acts. The Roman election
system dilemmas
in the ancient
Table of content: 1. Introduction. – 2. Elective system shaping in Rome. – 3. Source basis and literature. – 4. Municipal assemblies competences. – 5. Activities preceding elective gatherings. – 6. Course of voting. – 6.1. Voting according to curias (tribus). – 6.2. Voting
procedure. – 7. Establishing
voting results. – 8. Conclusions.
1. –
Introduction
The term suffragiis ferendis[1] means «votes to give». The noun ferendis derives from the
verb ferre, which means the act of carrying.
Therefore, it can be also understood as suffragium ferre, namely
«to carry a vote» or «to give a vote». The term suffragiis derives from
the word subfragium and means a single calling or sound[2]. The main part of that word, however, after taking away the prefix sub derives from the word fragor, meaning calling for an alert or help in
case of any accident[3].
At the end of the
republic, suffragiis ferendis became a technical notion in the legal
terminology and was used both by the Roman lawyers[4] and legal acts[5] in order to determine an elective system. The system was definitely
shaped at the end of the republic and the beginning of the principle on
elective people’s gatherings in Rome and moved to provinces, to municipals and
colonies[6].
2. –
Elective system shaping in Rome
The question about the
legitimacy of using contemporary term “elective system” for determining the
procedure of giving, collecting, counting and announcing the elective results in
Rome and municipals should be asked at the beginning[7]. We should realize that
the Roman voting system, throughout centuries, experienced a deep
transformation, thanks to which the elective right rules were worked out, many
of which are valid nowadays. They include: dividing society into elective
districts, that are certain reflection of the Roman and municipal society
division into tribus or curias, the rule of secret balloting, equal force of
all votes (each voter has only one vote), control over the course of voting by
an indicated commission and the right to indicate intermediaries by candidates
competing for election.
Primarily, a basic
administrative unit to perform balloting was curial assemblies that were called
in the royal period and at the beginning of the republic[8]. Centurial assemblies were
established in connection with dividing society into five property classes and
193 centuries, the division made by Serves Tallies[9]. Eventually, balloting was
held within 35 tribus[10]. In the last case, it was
a territorial division[11], however the first two
divisions of a society had a personal character, through ascribing each citizen
to a definite curia or centuria.
During curial
assemblies there was voting by acclamation, namely by accommodating adopting a
decision by all assembly members. That system of voting was abandoned in 471 BC[12] and substituted by
individual, oral that is open voting. A rogator asked each entitled person
about the way of voting and next with a sharp engraver (punctum) marked a point next to a candidates’ name placed in a
board. After completing voting, a commission rated them and a president of an
assembly announced a voting result[13].
At the end of 2nd
c. BC a number of acts were passed, known as leges tabellariae[14], with help of which a reform
of a voting system was performed, among others, a rule of secret balloting was
implemented. Those were the following acts: lex
Gabinia in 139 BC which
implemented secret balloting on elective assemblies, lex Cassia in 137 BC which implemented secret balloting on judicial assemblies, lex Papiria in 130 BC which implemented voting on legislative assemblies, lex Coelia in 107 BC which implemented secret balloting on the cases included in perduellio, namely state betrayal that were solved on comitia centuriata.
The peoples’ assembly
competences were as follows: to choose magistrates into particular offices, those were
elective assemblies then, to pass new acts, those were legislative assemblies
and to pass sentences in serious criminal cases, e.g. perduellio, those were judicial assemblies. During the royal period, curial
assemblies also dealt with performing legal activities, especially preparation
of testimonies and abrogation, namely adoption of an adult person by another
adult person. Centurial assemblies served to enlist young men into armed forces
and list of citizens.
The elective system
worked out at the end of republic during tribus assemblies was moved in a great
part into municipal system, which evidence are remained municipal acts,
especially lex Malecitana. The described elective procedure in the
board from Heba concerns the voting used in the Roman senate.
3. –
Source basis and literature
The voting system in
the ancient Rome was a subject of numerous monographs. A basic monograph in
Polish in this matter is the book by J. Linderski, who presented the Roman
assemblies from Sulla till Caesar[15] as well as the voting
system from that period. There are also two monographs worth mentioning by A.
Wiliński, who concentrated on the analysis of the voting system described
in the board from Heba[16]. The board from Heba was
also an inspiration for the group of historians from
Numerous monographs
concerning the voting system in the ancient Rome generally omit the voting
system, which was used in municipals. All the more, the remained municipal acts
state a basis for many monographs concerning the voting system on people’s
assemblies in Rome. As some specialist in Romance studies highlight, it is possible to regenerate the
voting system in
4. –
Municipal assemblies competences
At the end of the
republic activity of people’s assemblies in Rome was coming to an end
considerably because republican constitution instruments were not adjusted to
new social, demographical, economic and political conditions. Number of current
competences of assemblies was taken over by the Roman senate, especially within
creating law and passing sentences. Different situation was in province, in
little towns where people’s assemblies still created a significant element of
local self-government unit’s constitution. However, according to the republican
model, their competences were limited to the elective functions. On municipal
assemblies, the most important officials were elected such as: duumvirs, edils
and questors.
There are two terms
describing people’s assemblies in municipals or colonies in sources, namely curia[22] and tribus[23]. However, there is no
significant factual difference between those two terms, since there were only
tribus assemblies in Rome at the end of 3rd c. BC.
According to cap. 50 of
lex Irnitana, it was duumvirs’ obligation to divide local society into curias or
tribus. They should perform such division within 90 days from coming into force
the act. The number of curias was settled in 1124. In each municipal or colony,
the number could be greater or smaller according to a population in a town.
Irni was a little town, therefore its number of society units division was
little. The problem is determining if the division had a territorial or
personal character. The last solution prevails. In lex Malacitana, cap. 53, there is a legal instruction that obliges
to indicate a curia in which incolae, natives[24] ought to vite.
5. –
Activities preceding elective assemblies
Lex
Malacitana, cap. 51 proves that before elective assembly, the basic activity
was proposal of candidates: Si ad quem
diem professionem fieri oportebit. Professio,
namely proposal of candidates was always connected with calling an assembly.
Municipal act texts do not include, however, information concerning calling an
assembly and way and time of proposing candidates.
According to lex Malecitana, cap. 52, the right to
call an assembly was a duty of the oldest duumvir: Ex IIviris qui nunc sunt, item ex is, qui deinceps in eo municipio
IIviri erunt, uter maior natu erit. Such a solution was in accordance with
used practice in Rome during elective assemblies. Magistratus entitled to
vote an elective assembly pronounced a verdict. The activity was first
performed orally during contio, namely informal assembly, in which also
persons not entitled to vote, e.g. women, could participate. Next, the edict
was written down in a wooden board covered with wax or made from bronze, in
which edict was engraved[25]. The board was hung in a public place in the height of pedestrians’
eyes, so that everybody could read the text. The same procedure and publication
technique must have been used also in municipals and colonies[26]. Edict was announced 24 days before the assembly date. The period was
called trinum nundinum. A copy of an edict was also placed in a city
archives.
An edict had to include
a subject and date of election as well as list of candidates. The first part of
an edict concerned determining a kind of election. It could be election concerning
new duumvirs, ediles or questors. The second element had to include determining
the date of an assembly. In remained texts of municipal acts, there is no legal
instruction in that matter. According to lex Ursonensis cap. 64 presumably
those were free days or holidays - dies
nefasti. Moreover, assemblies could not have been called on dies fasti, namely days assigned for judiciary activities[27], dies nundinae, days between announcing an edict and assembly date, and the eighth
day of the Roman week when rural people came to a city to a market[28]. In total there were 195 dies
comitiales when a voting could
have been performed during peoples’ assemblies[29]. In a given day there should be no more than one voting.
The third element of
the edict was a list of candidates. The firs line of cap. 51 lex Malacitana includes statements Si ad quem diem professionem fieri oportebit...,
i.e. the day until which candidates for officials should be enlisted. According
to municipal acts, it is impossible to determine unanimously the period in
which candidate and registration place should be enlisted. Other sources also
do not give unanimous answer on the above questions, however it is possible to
assume according to cap. 51 lex
Malacitana. The necessity
to put candidates’ names in the edict, inclines to adopting the thesis that professio must have been done before an elective assembly. According to the
Orman elective calendar, finally worked out in the last two centuries of the
republic, elections were held in the first decade of July[30]. Therefore, application could have been done not later than until half
of June. Adopting the assumption by J. Linderski, application could have been
done in April[31]. Therefore, the period of application lasted at least from the end of
April until the half of June. It was enough time for application proper number
of candidates.
In lex Malacitana, cap. 51[32], there is a legal
instruction in case if no candidate or insufficient number of candidates to
employ in all offices had been enlisted or enlisted candidates had not been
properly qualified and had been disqualified[33]. Despite of formal gaps,
the edict should have been published together with the list of enlisted
candidates and the number of vacancies.
In this particular case, it was allowed to indicate an additional date
for application new candidates. Such application could have been done
personally, through own representatives or those whose names had already been
in the list. That special situation forced magistrates responsible for
elections to indicate an additional date for application new candidates. It is
agreed that it could be a period of 3-4 days at the beginning of trinum nundinum[34]. It was not accepted to
enlist candidates directly before an assembly, e.g. in contio. The reason for such a solution was the fact that the final
list of candidates must have been placed in a public place for certain time in
order to voters could acquaint with candidates and have time to make a
decision.
Application was done
before a chairperson of an assembly and that person made a decision on adopting
such application and enlisting a candidate – nominatio[35]. Until 60 BC, it was possible to propose a candidate in his absence - professiones in abstinentia, but also a rule of application in persona was practiced, which was obligatory one from that moment[36]. Primarily, a candidate’s application was not connected with examining
his attributes, qualifications without scrutinium. The procedure of candidate’s
application was finally shaped at the end of the republic. Basic rules of the
procedures included a candidate’s application in particular time before
election and the application should have been done personally and in the town[37].
6. –
Course of voting
According to lex Malecitana cap. 52, voting was
performed according to two rules: voting according to curia - utique ea distributione curiarum, de qua
supra conprehensum est, and per
tabellam voting, namely with the help of boards - suffragia ferri debebunt, ita per tabellam ferantur facito.
6.1. –
Voting according to curia (tribus)
According to lex Malacitana cap. 55, an elective
assembly was opened by an assembly chairperson (duumvir) from calling the entitled to vote to give a vote - Qui comitia ex hac lege habebit, is
municipes curiatim ad suffragium ferendum vocato ita ut uno vocatu omnes curias
in suffragium vocet,...(Those who
is entitled to call a people’s assembly shall call municipal citizens to give a
vote according to curia). The calling was directed simultaneously to all
curias.
Such a solution based
on that which was obligatory in
The elective assemblies
in the ancient Rome were held in different places, according to a kind of an
assembly. Curial assemblies were held in front of the senate. Herold or, rarely
lictor, gave a sign with a sound from a trumpet called to open an assembly tuba or lituus. First, herold gave
a sound with a trumpet in a place of an assembly and next, he walked along all
streets within the town walls[40]. Centurial assemblies had a military character, thus they were held in
a mars filed, beyond a town. Herold opened an assembly at rostrum. Simultaneously,
on the Janiculum[41] hill a red flag was hung that was a sign
that a town is protected in case of a sudden attack by enemies. Next, military
trumpets gave sound on the Capitol and around town walls. Tribus assemblies were
less formalized. Primarily, they were held inside of a town and next on a mars
field, where a proper fenced area was selected saepta[42].
The voting procedure
included in lex Malacitana cap. 55
unanimously indicate that all curias were called for simultaneous voting.
Therefore, voting results of particular curias were announced after the end of
voting. There was no possibility to investigate results from particular curias
before the end of voting. All votes were equally valid[43].
6.2. –
Voting procedure
Voting was secret,
performed on wooden boards covered with wax[44]. Votes were given to a
ballot box (cista) made from wicker or stone. It was a basket opened on the top
and placed in such a way that each voter could put a vote inside. A precise
course of such voting in
In municipal acts,
there are no norms regulating the way of giving votes. In lex Malacitana cap. 55, there is information on necessity of
calling three custodies. They should derive from municipal but not
from the same curia, where they must serve - Itemque curato, ut ad cistam cuiiusque curiae ex municipibus eiius
municipi terni sint, qui eiius curiae non sint, qui suffragia custodiant,
diribeant, et uti ante quam id faciant quisque eorum iurent se rationem
suffragiorum fide bona habiturum relaturumque – (Moreover, he must take care of the presence of commission at the
ballot box that consists of three persons selected among inhabitants of a
municipal excluding members of the curia in which they serve). The task was
described as an obligation to guarding a course of voting including counting
votes. Besides the commission, each candidate could put own representatives,
named custodies as well. Their duty was only to supervise a
correct course of voting and not allowing to voting abuses - crimen ambitus[47].
The boards were empty
in elective assemblies, and a voter, with the help of a burin (punctum) carved a candidate’s name or
his initials. Next, a voter put the board[48] into the ballot box. The
voting boards were given to voters by a member of the commission (custos)[49]. The course of voting itself again is
present in a coin struck in the times of P. Litius Nerva[50]. The matter of the moment of giving the boards remains
problematic. In case of voting on legislative or judiciary assemblies, boards
could have been given directly at the ballot box since a voter had not needed
too much time to choose a proper board while voting over a bill or cross
letters while voting on a judiciary assembly. In case of elective assemblies,
voters must have been given voting boards earlier. Probably when they were
entering the fenced area and saw a board with candidates’ names before them. It
allowed them to write a candidate’s name or his initials easily[51].
Custodes’s duties were also to control voters’ identity. There was no information
on the way of the control in sources. It can be assumed that the control was
multilevel. First of all, a factor of the control was family and acquaintances.
It can be also adopted that there was certain ID including name, tribus
belonging and qualifications. The control was performed by custos placed along the queue to vote[52].
7. –
Establishing voting results
Municipal acts do not regulate
the way of establishing voting results. Other sources prove that after a voting
is completed, ballot boxes were placed in a square before gathered curias, and
in principle, in a building destined to it (diribitorium).
Next, votes were taken out separately from the ballot box and carefully read by
members of a commission. The read votes were put into a pot called loculus. Each vote was indicated on a
great board covered with wax, as in an oral voting. There were dots put at
candidates’ names. Next the dots were counted and the final result of the
voting was established in a given curia. Custodes representing their candidates could count
votes for own use but they could not claim counting votes again.
Had votes been counted,
custodies selected own representative who presented the result of a given curia
to a chairperson of an assembly. Each tribus had only one vote to each post. If
three officials were elected, each curia had only three votes to their
disposal, regardless the number of candidates.
The winner in a given
tribus was a person who received ˝ + 1 of votes. Finally, the winner was a man
who received a major part of votes of a curia (6 from 11). In lex Malacitana cap. 56, there is a legal
norm concerning the situation in which two candidates would receive equal
number of votes[53].
The norm was an outcome of a family reform of August. In case of equal number
of votes by two candidates, the priority was for: married over single (also
widower), engaged over single (caelebs)[54]
having more children born in iustum
matrimonium, including also dead children but after giving them names. If
both candidates had the same qualifications, the decision was made by draw – sortitio.
Ll. 40 includes
information on a conversion ut bini
liberi post nomen inpositum,
according to which two children who died after being given a name, can be
counted as the alive ones. It is a matter of dies lustricus, namely the
eighth or ninth day form the child’s date of birth when a ritual purifying of
the child was performed. The celebration was connected with giving a name to a
child, which was explicit wit accepting the child in a family[55].
In this case, the conversion meant counting two dead children as one alive. In
case of an adult dead child, the conversion was more favorable and one adult dead child was counted as one
alive child. When all criteria were equal, then the aroused elective disputes
were solved similarly like nowadays, namely by draw – sortitio. Cap. 56
does not mention about ius liberorum, i.e. a privilege for the childless,
mentioned in lex Malacitana, cap 40[56]. It seems that in case of
election, a childless candidate, who had a caesar’s privilege ius liberorum, was treated as those who had three children. Lack of that clause in art. 56 should be
treated as editorial imperfection of the lex Irnitana text.
Counting votes of
particular curias was done until each candidate received half of the votes.
Further reading votes was unnecessary[57]. At that moment, a
chairperson of the assembly announced the election of a candidate, through an
accompanied herold. It could, therefore, happen that a candidate who in fact
had not received majority of votes was elected because he received a demanded
majority of votes as the firs. Further counting could have shown that the
candidate who lost in fact had received more votes but not as the firs one.
Example: there are three candidates A, B and C applying for two posts. In total
each curia should have give two votes that made twenty-two votes to share.
After reading the results from 15 curias, the two first candidates A and B
received six votes each and candidate C only four. In that moment reading
further results was finished and the chairperson announced the end of election.
Meanwhile, only sixteen of twenty-two votes were used that were at the disposal
of a curial assembly. There were 6 votes left to share, which theoretically
would allow finally candidate C to overtake the two first candidates. It would
be, however, impossible because of adopted rules of elective law in Rome[58].
Such a situation did
not take place when the number of candidates was equal with the number of posts
or when the number of candidates was considerable and votes dispersed. Lex Malecitana cap. 57.
8. –
Conclusions
The elective system in
the ancient Rome, during the republic period, experienced numerous reforms,
which led to working out rules which municipal elections during the principle
were based on. The basic rule was a secret ballot introduced according to leges tabellariae. The rule is one of
the fundamental one in contemporary elective systems.
The second rule
concerned the division of a society into smaller administrative units.
Primarily, those were curial assemblies, next the centurial ones and finally,
tribus ones. The first two divisions had a personal character and the tribus
had a territorial character, although in municipals, tribus assemblies (curial)
preserved personal character. Nowadays, a society is also divided into elective
districts.
The third rule was an
opportunity to simultaneous voting by all tribuses, which decided that such a
solution survived in municipal law. There was no such a possibility in case of
curial or tribus assemblies, where separate votes were given in a determined
order so that partial results were known before the end of voting. Nowadays,
also elective results, even the partial ones, are given after the end of
voting.
The fourth rule is the
open nature of a ballot. Voting was held in a special place. There were
commissions (custodes) called, that were responsible for proper voting and
next, counting the votes. Also announcing the elective results in particular
tribuses (curias) were made in public. Each candidate could put own
intermediary, included in custodies, at the ballot box. The votes were
stored in a public place and later in special rooms. Nowadays, there are also
elective commissions called having similar competences as then. Each candidate
may put an intermediary in elective rooms. Ballot boxes are properly secured
and stored in places determined by law.
The last rule was
introducing a legal regulation in case of receiving equal number of votes by
two or more candidates. The rules worked out by the pro family legislation of
August became a solution to such a situation. If the criteria were equal, then
the choice is made by draw. Contemporary elective law provides election by draw
among the candidates who received the same number of votes in a given elective
district as well.