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 the work of a commander and a senatorial commission. On the other hand, cities with treaties (civitates foederatae) and cities with charters (civitates liberae) have their rights given them by the people. In the one case the rights are guaranteed by an irrevocable agreement sworn to by the fetiales; in the other by a revocable charter (lex data), which as late as 71 is still an utterance of the people (lex rogata). We shall see, in dealing with the Senate, that, even in this matter of granting treaties or charters to separate states, senatorial authority encroached on that of the people.

(ii.) We have already seen how in theory the popular power of election was a modification of a principle of nomination; after its recognition the principles regulating it were practically those of legislation, the magistrate questioning and the people commanding. The representation of the dual community is here rather more marked than in the case of legislation; for while a plebiscitum is often spoken of as a lex, no one credits the tribune with the position of a magistratus populi, and however wide his powers may have become, he always remains in theory the head of the plebeian community. The preliminaries to election necessary to the candidate for office have already been considered, and the further process of election will be dealt with when we describe the procedure of the comitia as a whole.

(iii.) The origin of the jurisdiction of the people is, as we have seen, obscure; but it is probable that it did not spring wholly from the provocatio, and even in cases where it did, the appeal tended to become extinct, from the fact that a magistrate who recognised the restrictions imposed on his imperium by law would not pronounce a sentence, but would bring the case immediately before the people. A trial before the people (judicium populi) took place when a magistrate recognised the limitations on his power; the provocatio—an extremely rare occurrence in the later Republic—was required to start the same procedure when the magistrate refused to recognise these limitations.

The judicial competence of the different magistrates and comitia was determined partly by law, partly by custom. Two fundamental principles were recognised:—

(1) That capital cases should be reserved for the centuries.