THE COMITIA CURIATA
The primitive European assembly, of which the Roman is a variety, may be
reconstructed in broad outline by a comparison of the forms and functions
of the institution as found among the earliest Italians, Greeks,
Celts, Germans, Slavs, and kindred peoples, among whom it differed in
detail while possessing the same general features. The usual tendency
of development was toward the abridgment of popular powers to the
advantage of the nobles or of the king;[966] but in some instances may be
discovered a growth in the opposite direction.
Generally the assembly did not have fixed times of meeting but convened
only when called by the king or chiefs. This is known to be true of the
Homeric Greeks,[967] of the Slavs,[968] and of the Romans,[969] and may
be regarded as the more primitive condition. In addition to extraordinary
sessions the German assembly acquired the right to meet regularly twice
a month at fixed times[970]—a right which gave the people a valuable
political advantage. In like manner the Lacedaemonians met once a
month;[971] the Athenians probably once a prytany (tenth of a year) after
Cleisthenes, and certainly four times a prytany after Pericles.[972] The
Celtic assemblies convened annually or triennially at fixed seasons.[973]
Among all these peoples, however, subjects for consideration were
presented by none but the king or chief, the assembly itself being
wholly without initiative. Such subjects were as a rule previously
discussed in a council of chiefs or nobles.[974] The person who summoned
the assembly naturally made the first speech, which explained the purpose
of the meeting and the character of the subject to be considered. If
it was an enterprise in which he desired the support or coöperation
of the community, he attempted to rouse for it the enthusiasm of his
hearers.[975] The discussion might then be continued by the chiefs or any
others distinguished for age, military prowess, or eloquence.[976] Among
the Germans, who possessed more than the average degree of liberty, any
one spoke who could gain a hearing; in the Homeric assembly a commoner
who dared lift up his voice against king or noble was liable to severe
chastisement as a disorderly person;[977] and conditions at Rome, as well
as in Etruria,[978] seem to have been equally unfavorable to the ordinary
freeman.
A considerable variety of business came before the assembly. It might
be summoned to hear the announcement of news of interest to the
community,[979] the reading of the calendar for the month,[980] the
declaration of a policy or opinion by a king or chief,[981] or for
witnessing acts affecting the interests of the community.[982] More
important were judicial cases,[983] questions of war and peace,[984] and
elections.[985]
The problem as to the relative power of the king and council on the one
hand and of the assembly on the other is difficult. It was a disadvantage
to the people, over and above their lack of initiative, to have no means
of precisely expressing their will. The Greeks signified their approval
by acclamation,[986] the Germans by clashing their weapons,[987] and the
Celts by both;[988] either demonstration aimed to express, not the will
of the majority,[989] but the intensity of conviction on the part of the
assembly as a whole. It lacked as well the means of legally enforcing its
will.[990] The Achaeans in assembly approved the petition of Chryses,
a suppliant priest; nevertheless King Agamemnon rejected it.[991] After
the people had divided the spoils of war, Agamemnon seized the prize
they had given another.[992] The Trojans were ready to surrender Helen
for the sake of peace; but Priam, to gratify his son, refused, and the
war went on.[993] In his relations with individuals the king often acted
unjustly and tyrannically. Even in affairs which concerned the entire
community he might take large liberty. Without consulting the assembly he
could count on the support of the people in a war of defence. Treaties
of peace, which were often guest-friendships and intermarriages between
royal families,[994] did not come before the people for ratification as a
right, but only in cases in which their pledge seemed necessary for the
prevention of private warfare. The right of the magistrate to conclude
peace with or without discussion in the council or senate was recognized
by the states of Italy as late as the Second Samnite war.[995] The
king might even declare an offensive war on his own responsibility, if
without consulting the people he could feel sure of their support.[996]
Enterprises requiring their coöperation he usually submitted to them
to win their approval, as he had no means of coercing the entire
community. His independence of the assembly increased with the growth
of heredity. The idea of sovereignty, strictly speaking, was unknown to
primitive times; yet so far as people thought of political power, they
assigned it to the king and council.[997] Nevertheless the fact of the
assembly’s existence and the need of eloquence for persuading it prove
it to have been a real force. The suppression of the German assembly
or the prohibition of carrying arms to the meeting was looked upon as
intolerable tyranny.[998] For the disturbance of an Irish assembly the
penalty was death.[999] Public opinion was a check on royalty,[1000] and
in extreme cases the people rebelled and killed their king.[1001]
The strengthening of the kingship naturally tended to weaken the
assembly. The Lacedaemonian kings had a right to make war on whatever
state they pleased, and any citizen who obstructed this power was
accursed;[1002] if, too, in anything the people gave a wrong decision,
the kings and council could set it right.[1003] Under the Frankish
monarchy the general assembly seems to have entirely disappeared
in the sixth century A.D., to be revived in the latter part of the
seventh,[1004] in a form which took little account of the commons.[1005]
In the other Germanic tribes which entered the Empire the effect of the
migration was to strengthen the king and to weaken in a corresponding
degree the power of the people.[1006] In Russia Tartar domination,
converting the legitimate princes into tyrants, effected the downfall of
the assemblies.[1007] The building up of large states, too, necessarily
degrades or destroys popular gatherings.[1008]
The heritage of the Roman assembly from the earlier tribal time must
have been slight as well as vague—a heritage diminished further by the
growing power of the king and nobles. The assumption has often been
made that from the beginning the Roman assembly was sovereign. The view
rests in part, however, on a confusion of two ideas which should be kept
distinct. In its broadest sense populus designates the state, which is
sovereign whether it expresses its will through the king, the senate,
or the popular assembly, or through the concurrence of two or more of
these elements. In interstate relations it always has this meaning.
More narrowly populus signifies the masses of citizens in contrast with
the magistrates or with the senate.[1009] In the latter sense it cannot
be said that the populus was from the beginning sovereign. The Romans
themselves of later time understood that in the regal period the senate
had the wisdom to advise, the king possessed the imperium, whereas the
people enjoyed but a limited degree of freedom, right, and power.[1010]
Their condition was not liberty but a preparation for it.[1011] Their
assembly, like that of other early Europeans, had no power of initiative;
it met only when summoned by the king, and could consider those matters
only which the king brought before it. Its object must have been chiefly
to receive information and to witness acts of public importance. In no
case did the king call upon the assembly for advice; counsel belonged
exclusively to the wise elders, who composed the senate;[1012] and should
he wish to instruct the people in the merits of a proposed measure,
he would himself address them and perhaps invite the most respected
senators or his most trustworthy supporters among the private citizens
to give the masses the benefit of their wisdom.[1013] In other than
judicial assemblies the privilege of speaking must have been sparingly
granted.[1014] Finally no elective or legislative act of the curiae was
valid without the authorization of the senate (patrum auctoritas).[1015]
With reference to the specific rights of the assembly, Dionysius[1016]
states that Romulus granted the commons three prerogatives, (1) to elect
magistrates, (2) to ratify laws, (3) to decide concerning war, whenever
the king should refer the matter to them. Livy’s[1017] stricture on the
absolutism of Tarquin the Proud implies, too, that constitutionally
the assembly should have had power to decide on peace and war. But
stress should be laid on the admission of Dionysius that probably all
the questions above enumerated, or at least those of peace and war,
were referred to the assembly at the pleasure only of the king—that the
decision of them was not a right of the people, but a concession on the
part of the sovereign.[1018] Still more important, these generalizations
are in great part invalidated, as Rubino[1019] has shown, by the
testimony of their authors. When either refers to individual cases of
treaty-making under the kings, he never connects the assembly with the
proceedings.[1020] It is significant, too, that the formula of treaty
makes the king the only actor, taking no account of the people.[1021]
Usually peace continued merely through the lifetime of the king who
contracted it,[1022] but a truce for a definite period was binding to
the end, even after his death.[1023] Under the republic to the time
of the decemvirs the treaty-making power resided in the consuls and
senate.[1024] Ordinarily either a senatus consultum empowered the
magistrates to use their discretion[1025] or sanctioned the agreement
when made.[1026] More rarely the senate treated directly with ambassadors
from the enemy.[1027] The clamor of the plebeians sometimes prevailed
upon the senate to negotiate for peace;[1028] and at other times it
was merely by accident that the people heard of the conclusion of a
treaty.[1029] After the decemviral legislation the plebeian assembly
of tribes slowly acquired the right of ratification;[1030] in fact
it was not till the Second Samnite war that their vote came to be
essential.[1031] Among the archives devoted to treaties and alliances,
accordingly, senatus consulta and plebiscites alone are mentioned.[1032]
The very fact that in the later republic the ratification of treaties
belonged exclusively to the tribal assembly[1033] proves that it was an
acquired right of the people; for we may set it down as a fixed principle
that the curiae and the centuries yielded none of their prerogatives to
the tribes.[1034]
As regards the right of the people to declare war a distinction must
be drawn between defensive wars, which, admitting neither choice nor
delay,[1035] could not be referred to their decision, and aggressive
wars, which were in the option of the state to undertake or avoid. Yet
even in the case of offensive wars, though the approval of the people was
doubtless often sought, they exercised under the kings and in the early
republic no real right. When the king or magistrate felt that Rome had
suffered injury from a neighboring state, he despatched an ambassador to
seek reparation. If the demand was not complied with, the ambassador,
calling Jupiter and the other gods to witness the injustice, added: “But
we shall consult the elders in our own country concerning these matters,
to determine in what way we may obtain justice.” When the messenger had
returned to Rome and had made his report, the king consulted the senate
substantially in these words: “Concerning such matters, differences, and
disagreements as the pater patratus of the Roman people, the quirites,
has conferred with the pater patratus of the ancient Latins and of the
ancient Latin peoples—which matters ought to be given up, performed,
discharged, but which they have neither given up nor performed nor
discharged—declare,” said he to the senator whose opinion he wished first
to obtain, “what you think.” Then the elder thus questioned replied,
“I think the demand should be enforced by a just and pious war; and
therefore I consent to it and vote for it.” Then the rest were asked
in order, and when a majority agreed in this opinion, war was thereby
voted.[1036] In all this account there is no mention of the people; but
afterward when the fetialis reached the border of the enemy’s country,
and pronounced the formula for the declaration of war, he included a
statement that the populus Romanus had ordered it: “Forasmuch as the
populus Romanus of the quirites have ordered that there should be war
with the ancient Latins, and the senate of the populus Romanus of the
quirites have given their opinion, consented, etc., I and the populus
Romanus declare and make war on the peoples of the ancient Latins.”[1037]
In this connection, as in all formulae applying to international
relations, populus means not the assembly but the state; hence the use
of the word cannot be taken as evidence of the existence of a popular
right to declare war.[1038] Besides this formula we have in support of
such a right the general statement only of Dionysius and the implied
idea of Livy, referred to above,[1039] neither of which is in itself of
especial weight. On the other hand the individual kings seem to have
been free to make war at their discretion. The fact that peace and war
are represented as depending upon the character and inclinations of the
king[1040] further establishes the real view of the Roman historians.
In a succeeding chapter[1041] it will be made clear that not till 427
did the centuriate assembly acquire the right to declare an aggressive
war; probably not till some time afterward was this right established as
inalienable. Previous to that date the warriors, perhaps in a contio,
were occasionally called on to give their approval, doubtless, as has
been explained above,[1042] to increase their enthusiasm for the war.
With reference to the legislative activity of the assembly under
the kings, it is necessary to call attention to the fact that among
all peoples in the earlier stages of their growth law is chiefly
customary.[1043] At the time of her founding Rome inherited from the
Latin stock, to which her people mainly belonged, a mass of private and
public customs, which, owing their existence to no legislative power,
were the result of gradual evolution. Under such conditions, as in
Homeric Greece, the king or chief settled disputes in accordance with
these usages, though in the general belief his individual judgments
came directly to him from some god. The Homeric king received his
dooms—θέμιστες—and even his thoughts from the gods.[1044] The mythical or
semi-mythical legislators of Greece, as Minos, Lycurgus, and Zaleucus,
were given their laws by revelation. In like manner Numa, who may be
considered a typical legislator for primitive Rome,[1045] received
his sacred laws and institutions from the goddess Egeria;[1046] and
Romulus, the first great law-giver,[1047] was a demi-god, who passed
without dying to the dwelling-place of the immortals.[1048] Roughly
distinguished, Romulus was the author of the secular law, Numa of the
sacred.[1049] In general the Romans of later time looked back to their
kings, the founders of their state,[1050] as the authors not only
of their fundamental laws and institutions but even of their moral
principles.[1051] Doubtless the Roman view of the ancient king is an
image of the republican dictatorship, of the extraordinary magistratus
rei publicae constituendae, of the consul freed from his various
limitations;[1052] but the picture, stripped of the distinctness which
came with the gradual formulation of constitutional usage, is, as
comparative study shows, true to the primitive condition which it aims to
represent.
From this early conception the idea of human legislation gradually
emerged. Not daring on his own responsibility to change a traditional
usage which the people held sacred, the magistrate found it expedient
to obtain their consent to any serious departure,[1053] with a view not
to legalizing the proposal, but to pledging the people to its practical
adoption. When and how the primitive acclamation gave way to the orderly
vote of the comitia curiata cannot be ascertained from the sources.[1054]
After this stage was reached, the transaction between king and people
had the following form: “I ask you, quirites, whether you will consent
to, and consider it right, that T. Valerius be a son to L. Titus as
rightfully and legally as if born of the father and mother of the family
of the latter, and that the latter have the power of life and death
over the former as a father over his son. These (questions) in the form
in which I have pronounced them, thus, quirites, I ask you.”[1055] The
magistrate brought his formulated request before the people (legem
ferre), who accepted it (legem accipere); the question (rogatio) was
directed not to the assembly as a whole but to the component citizens,
who individually replied ut rogas, “yes,” or antiquo, “no.”[1056]
By this procedure the citizens bound themselves to the acceptance of
the proposition on an oral promise, which was the strongest form of
obligation known to them. Herein is involved the fundamental idea of lex,
which was not a command addressed by the sovereign to the people or a
contract between ruler and ruled, but an obligation which the citizens
took upon themselves at the request of the magistrate.[1057] The verb
iubere, which designates the people’s part (populus iubet) in the passing
of laws and resolutions, did not originally have the meaning “to order,”
which belonged to it in the age of Cicero. Some have derived it from ius
habere, “to regard as right;”[1058] others from judh, an extension of
the root ju, “to bind.”[1059] In either case it seems to mean no more
than to accept or hold as right or as binding. In its widest sense lex
denotes any obligation which one party takes upon himself on the offer of
another. In this meaning it may apply to a business contract,[1060] in
which alone the obligations are reciprocal, to the instruction imposed by
a superior magistrate upon an inferior,[1061] to the auspicium which the
magistrate formulates and the god accepts,[1062] to the ordinance which
the subject, without being consulted, receives willingly or unwillingly
from the ruler (lex data),[1063] as well as to the statute established
by the question of the magistrate and the affirmative answer of the
citizens (lex rogata). The leges of the community, with which alone the
present discussion is concerned, were distinguished as publicae.[1064]
A lex of the kind was not necessarily general,[1065] but applied as
readily to an individual citizen[1066] as to the entire body, to a
declaration of war,[1067] or the banishment of a citizen,[1068] as well
as to a universal rule of conduct. In the earlier time the lex rogata, or
simply lex, seems to have designated any act of an assembly, elective or
judicial as well as law-making in the modern sense.[1069] But in the time
of Cicero it had come to mean any act of an assembly which was neither an
election nor a judicial decision,[1070] and in the latter sense the word
is used in this volume.
The acceptance of a proposition by the citizens obligated
themselves[1071] but not the government. The king, who retained office
for life and was irresponsible, could not be held amenable to law;
against a tyrannical ruler the only resource was revolution. Although the
republican magistrates possessed remarkably great power, as temporary
functionaries they belonged to the people, along with whom they were
bound by the laws.[1072]
To the end of the regal period the legislative activity of the people
remained narrowly restricted. The body of leges regiae, described as
curiate by Pomponius[1073] on the supposition that they were passed by
the assembly under royal presidency,[1074] was little more than the ius
pontificum—the customary religious law—with whose making the curiae had
nothing to do.[1075] If the king wished to admit new citizens,[1076]
erect public works, levy forced labor on the citizens,[1077] reform the
military organization,[1078] punish a man with chains or death,[1079]
make a treaty, or even declare an offensive war, no power compelled him
to submit the measure to the citizens. Although he must often have found
it expedient to engage their coöperation in national enterprises, or more
rarely in a legal innovation,[1080] it may be stated with confidence
that before the beginning of the republic the curiate assembly had not
acquired the right to be consulted on any of these matters—that its
slight activity in legislation and administration was a concession from
the king rather than a right; for under the republic such activity,
gradually increasing, belonged to the centuries and the tribes. We may
accept without hesitation the principle that in form if not in substance
the curiae retained all the powers which they had ever actually possessed.
Judicial business, which no one has ever assumed to be a primitive
function of the Roman assembly, needs no long consideration here. Among
the early Indo-Europeans the settlement of disputes and the punishment
of most crimes were in the hands of the families and brotherhoods; only
treason and closely related offences were noticed by the state; and these
cases were tried by the king in the presence of the assembly.[1081] The
religious ideas attaching to crime and punishment[1082] in early Rome
suggest that the priests had the same connection with these matters there
as among the Celts and Germans. That condition yielded to the growing
authority of the king, who is represented by the ancients as wielding
an absolute power of life and death over his people and as allowing in
capital cases an appeal to the assembly at his own discretion.[1083]
From the general conception of the relation between king and assembly as
established in this chapter, it is necessary to infer that if the people
had any claim to a share in the jurisdiction, it must have been slight as
well as vague, and one which they were in no position to enforce.
A review of the individual kings might give the impression that an act
of the assembly was unessential to filling the regal office. Not only
were Romulus and Tatius kings without election,[1084] but according to
Livy[1085] Numa’s appointment was made by the senate alone; and Servius
ruled long and introduced his great reforms before his election.[1086]
Tarquin the Proud to the end of his reign was neither appointed by the
senate nor chosen by the people.[1087] From these four or five instances
of kings who ruled without election, as well as from the fact that
both the dictatorship—a temporary return to monarchy—and the office
of rex sacrorum—the priestly successor to the monarch—were filled by
appointment, we might infer that the kingship was not elective.[1088]
But on the other hand the word interregnum, which could not have been
invented in the republican period and which involves the idea of
election, as well as the general custom of choosing kings among primitive
European peoples, may be added to the authority of our sources[1089]
in favor of an elective monarchy in earliest Rome. The nomination of
the king by the competent person was perhaps acclaimed in a contio in
some such way as among the early Germans. Such an election, we may
suppose, was in the beginning legal without further action on the part
of the people. But the accession of a king was a momentous event in the
life of a generation—far more important than the annual declaration of
war upon a neighbor—and the advantage of a formal vote of the curiate
assembly, after its institution, was obvious both to the king and to the
sacerdotes; it gave to the former the solemn oral pledge of obedience
from the citizens, and to the latter an opportunity to influence the
proceedings through the auspices and through the manipulation of the
calendar.
Under this system the king after his appointment by his predecessor or
by the interrex, and after the acclamation in contio if such action took
place, convoked the curiae on the first convenient comitial day of his
reign,[1090] having held favorable auspices in the morning, and proposed
to them a rogation[1091] in some such form as the following: “Do you
consent, and regard it as just and legal, that I, whom the populus has
designated king, should exercise imperium over you?” This rogation,
answered affirmatively by a majority of the curiae, became a lex curiata
de imperio.[1092] The informal acclamation, if it was the custom, must
have disappeared in time, and the passing of the curiate law was looked
upon as the election proper.[1093]
Concessions to the people develop into popular rights. The citizens,
deeply interested in the choice of a man who for the remainder of his
life was to represent their community before the gods, lead them in war,
and exercise over them the power of life and death, claimed as their
first active political right the ius suffragii in the passing of this lex
curiata de imperio. Hence after the institution of the republic and of
the comitia centuriata, the curiae clung obstinately to this inalienable
prerogative.[1094]
The development of the elective process outlined above is offered in
explanation of the curious phenomenon that under the republic, while
all other acts of the centuriate and tribal assemblies required no
confirmation by the curiae, elections by these assemblies did require
such a sanction. This explanation is the only one proposed which accords
with the Roman interpretation of the peculiarity. According to Cicero it
was provided that in the case of all elective magistrates the people
should vote twice on each that they might have an opportunity to correct
what they had done, if they repented of having conferred an office on
any person. In the case of the censors this second vote was cast in
the comitia centuriata; all other elective magistrates received it in
the curiate assembly.[1095] Rubino[1096] and others have objected that
Cicero’s interpretation of the curiate law is biassed by his desire
to contrast the essentially antipopular character of the demagogue
Rullus,[1097] who by the terms of his agrarian law would deprive the
people of their right to vote even once in the election of officials,
with the wise and moderate statesmen of old, who were so devoted to the
people as to allow them two opportunities to express their choice in
the case of each magistrate. The orator, it is urged, could not himself
know the original intention of the usage; and his interpretation is
contradicted by the fact that the person who proposed the lex curiata
was already a magistrate, the voting on this lex being subsequent to the
election and forming no part of it.[1098]
In favor of Cicero’s interpretation it may in the first place be stated
that he was not simply offering a conjecture as to the original intention
of the usage, but was interpreting the formula of the law as it existed
in his own day. There would be no point to his interpretation unless the
formula ran somewhat like that of an election; and he affirms definitely
that the law bestows the magistracy upon a person who has already
received the same office from other comitia—that it is, in other words,
a second bestowal of the office.[1099] That this interpretation is not a
mere invention of Cicero is proved by a statement of Messala[1100] that
the magistracy in the strict legal sense of the term is granted by the
curiate law. And the point maintained by Messala is further confirmed
by that article of the agrarian rogation of P. Servilius Rullus which
provides that the decemviri agris adsignandis may, if necessary, dispense
with the curiate law and yet be “decemvirs in as legal a sense as are
those who hold the office according to the strictest law.”[1101] In other
words, the person who has been elected by the comitia centuriata or
tributa is a magistratus, though not a magistratus iustus or optimo iure
(optima lege); the completion of all formalities, ending with a second
election (by the curiae), is essential to the latter.
Optimo iure requires explanation. It often signifies “with perfect
justice,” “most deservedly.”[1102] Closely related to this meaning is
that of “perfect formality,” as in making a bequest[1103] or in creating
a sacerdos[1104] or a magistrate.[1105] In this sense optimo iure is
interchangeable with optima lege. Developed in another direction, either
phrase readily gives the idea of completeness or perfection of title,
not only to property,[1106] but also to office.[1107] One who holds a
perfect title to a property, or has been granted a civil status[1108]
or an office[1109] in a perfectly legal way, necessarily enjoys all the
immunities, honors, and powers inherent in such absolute condition.
To indicate that due legality has been observed in the creation of a
magistrate, and that the latter has accordingly complete possession of
his office, and of all the honors and powers belonging to it, the phrase
ut qui optima lege sunt, erunt is often inserted in the formula of
appointment or election. These words continued to be used, for example,
in the creation of the dictator as long as his power remained absolute,
but after it became subject to appeal, they were dropped.[1110] The
author of the act was at the same time author of the condition attaching
to it expressed by the phrase under consideration: in the appointment
of a dictator it was the consul; in the creation of a promagistrate or
the assignment of a province it might be the senate.[1111] Laws must
often have contained provisions that the magistrates created under them
should be ut qui optima lege.[1112] The Servilian bill most probably
included an article of the kind for the decemviri agris adsignandis
to be elected under it. But as the title to an office was impaired
by any informality in the elective process, and as Servilius foresaw
that the lex curiata might be prevented by tribunician intercession or
other cause, he inserted in his bill a further provision, referred to
above,[1113] that the decemviri might be officials optima lege[1114] even
without the curiate sanction. From what is here said it is clear that
the condition of iustus or optima lege was not obtained for a magistrate
by the passing of the curiate act alone, but rather by due attention to
all formalities,[1115] which were brought to completion by that act.
The formula for the curiate law, in addition to its resemblance to that
for elections, must have contained some reference to the imperium, as we
may infer from the frequent designation of the law as a lex de imperio
by Cicero. From this phrase modern writers infer that the curiate act
conferred the imperium upon newly elected magistrates. The question
whether it granted to a magistrate powers which he did not already
possess will be considered below. For the present it is enough to state
that in no instance do the ancients speak of “conferring” the imperium by
the curiate law or of deriving the imperium from that law by any process
whatsoever. But mention is made of conferring the imperium by a decree of
the senate or by the suffrages of the people in the centuriate or tribal
assembly[1116] and of _confirming_ it by the curiate law.[1117]
The consuls and the praetor were elected by the centuries, and their
imperium was sanctioned by the curiae. The dictator, too, was obliged
to carry a curiate law.[1118] But the quaestors, the curule aediles,
and other inferior magistrates, after their election by the tribes, did
not themselves convoke the curiae for sanctioning their election; the
lex was proposed in their behalf by a higher magistrate.[1119] As the
origin of this custom we may suppose that the kings, and after them the
higher magistrates of the early republic, used to ask the people for a
pledge of loyalty not only to themselves but also to their assistants,
and that this custom continued even after they had come to be elective
magistrates. To functionaries who lacked the imperium the expression lex
de imperio could not apply; lex de potestate, though not occurring in our
sources, would be the appropriate phrase.
It has generally been assumed that the curiate law bestowed a power
in addition to that received through election.[1120] Something can in
fact be said in favor of this view. We are told that the newly elected
magistrate could attend to no serious public business till he had secured
the passage of the act:[1121] till then the praetor could not undertake
judicial business; the consul could have nothing to do with military
affairs[1122] or hold comitia for the election of his successor.[1123]
Some of Cicero’s contemporaries asserted that a magistrate who failed to
pass the law could not as promagistrate govern a province.[1124] Or if
without a curiate law he made the attempt, he would be obliged to conduct
the administration at his own expense;[1125] and if as promagistrate
he gained a victory in war, he was denied a triumph.[1126] Under such
conditions it might well be said that a magistrate could engage in no
serious public business before he had carried for himself the sanctioning
law. But practice diverged widely from these rules. An act containing a
provision for the election of functionaries might include a dispensing
clause to the effect that the persons elected shall, in the lack of a
curiate law, “be magistrates in as legal a sense as those who are elected
according to the strictest forms of law.”[1127] Yet even without this
special provision the magistrate regularly attended to much business
before passing the law. The first public act of the consul, praetor,
or other magistrate was to take the auspices, to determine whether his
magistracy was acceptable to the gods;[1128] and another auspication was
held for the meeting of the curiae.[1129] It was customary, too, for the
consul to make his vows to the Capitoline Jupiter and to hold a session
of the senate, both of which acts had to be auspicated.[1130] These facts
disprove the theory that the curiate law conferred the auspicium. In the
first session of the senate here mentioned not only religious affairs
but civil and military matters of great importance were discussed and
finally arranged, all of which business was regularly managed without a
curiate law.[1131] As to other administrative acts it is probable that
the want of a lex curiata never hindered the performance of necessary
business civil or military. In case of danger to the state the interrex,
who wholly lacked the curiate law, or the consul before passing the law
could doubtless take command of the army;[1132] and it is significant
that the unlimited imperium and iudicium were granted the magistrates
not by the curiae but by the senate.[1133] The law was indeed considered
indispensable to the dictator in 310.[1134] It is generally assumed by
the moderns that C. Flaminius, consul in 217, lacked the law;[1135] their
reason is the statement of Livy[1136] that he entered upon his office not
at Rome but at Ariminum. The fact, however, that in this year he carried
a monetary statute before his departure for the war[1137] proves that he
began his official duties at Rome, and that Livy’s tirade to the contrary
is empty rhetoric. Probably because he departed without attending to the
usual auspices, his political opponents were unwilling to admit that he
had entered on his office. But the army obeyed his command, his name
remained in the fasti as consul, and his monetary law continued in force.
Livy, while complaining at length of his failure to take the auspices,
says nothing of the curiate law. His silence is significant.[1138] We
cannot be certain that the lex curiata was not passed in his case; but
we have no right to imagine that it was not and then draw far-reaching
deductions from our fancy.[1139]
A more valuable instance is that of L. Marcius, elected propraetor by
the army in Spain in 212.[1140] Although he could not have had a lex
curiata, the senate, while censuring the election because it transferred
the auspices to the camp, did not make the want of the law a ground
for declaring the magistracy illegal.[1141] A still more famous case
is that of the magistrates of the year 49, who with the Pompeian party
fled from Rome before carrying a lex curiata, and yet were not prevented
by this circumstance from holding military commands during their year
of office or from continuing in command into the following year as
promagistrates.[1142] A further instance is that of Pomptinus, praetor in
63, who had no curiate law; nevertheless as propraetor in 61 he governed
Narbonensis where he gained a victory over the Gauls. This fact, too,
is evidence that the want of the law did not in practice debar from
military commands. From 58 to 54 he waited outside the gates of Rome
for a triumph. The senate would not grant it and some of the magistrates
opposed his effort to obtain it. The privilege was at last given him by
the comitia under pretorian presidency.[1143] Although the want of the
law involved him in inconvenience, he finally accomplished his purpose
without it. Appius Claudius, consul in 54, insisted that, should he
fail to carry the sanctioning act, he should nevertheless, since he
was in possession of a province decreed the consuls of his year in
accordance with the Sempronian plebiscite, have imperium by virtue of a
Cornelian statute until such time as he should re-enter the city.[1144]
The law of Sulla, to which he referred, probably stated simply that the
promagistrate was to retain his imperium till his return to the city,
without mentioning the curiate law; and for that reason Appius believed
the sanctioning act to be unnecessary. Cicero, who informs us of this
matter, inclines to the interpretation of Appius. Our conclusion,
accordingly, is that in practice, if not in legal theory, the lex
curiata, however convenient it may have been, was not essential to the
government of a province or to a military command. It remains to consider
whether it was indispensable to the holding of comitia centuriata for
elections. The same Appius Claudius maintained that though a curiate law
was appropriate to the consul, it was not a necessity,[1145] implying
that without the law he was competent to perform all the functions of
that office. He and his colleague, therefore, who was equally without the
law,[1146] were ready to hold comitia for the election of successors;
and although party complications opposed the election, no one objected
to it on the ground that the consuls were incompetent; for postponing
the election they resorted to auspical obnuntiations[1147] and to
prosecutions of the candidates for bribery.[1148] Their competence to
hold the elective comitia is further established by the senate’s desire
that they should hold them at the earliest possible moment.[1149] The
ultimate failure of these consuls to elect successors was not owing to
any one’s objecting to their competence.[1150]
Scholars have attached great weight to the case of the magistrates of
49, who with the Pompeian party, as has been stated,[1151] left the city
before carrying a lex curiata. Though desiring, in the Pompeian camp
at Thessalonica, to hold comitia for the election of successors, it
was decided that the want of the law rendered the consuls incompetent
for the function.[1152] But the case requires careful examination. The
Pompeians had with them two hundred senators, enough in their opinion
to constitute a quorum, and their augurs had consecrated a place for
taking auspices; so that it was assumed that the populus Romanus and the
entire city were now located in the camp.[1153] All these circumstances
clearly imply an intention to assume a temporary transfer of the city
of Rome to the camp and to conduct the government in that place on the
basis of this constitutional fiction. But suddenly the execution of the
plan was stopped by the plea that the consuls had no curiate law! The
difficulty, however, was not so serious as Dio Cassius and the moderns
have supposed. The assumption of the Pompeians that the city of Rome
temporarily existed in the camp implied as well the existence of a
pomerium, within which the consuls could legally have held a meeting of
the curiae.[1154] Or in case they felt any scruple about the matter, the
senate could have decreed the consuls a dispensation from the law for the
purpose of holding the elections. That they allowed a mere formality to
baulk them is out of the question. The whole situation is made clear by
the understanding that the consuls themselves, or more probably Pompey,
did not wish elections to be held or a civil government established
in the camp; such a proceeding would have disturbed still further the
discipline of the army and would have roused jealousies inimical to the
cause. On this interpretation the want of a law, especially as it has the
appearance of an afterthought, was a mere pretext.
We have seen promagistrates whose election to their respective offices
had not been sanctioned by the curiae governing provinces and holding
military commands; we have seen consuls who lacked the curiate sanction
attending with less inconvenience to all their official duties. The same
looseness characterized the application of the law to minor officials.
The want of the sanction legally involved curule aediles, quaestors, and
all other officials who lacked the right to convoke the curiae; and yet
it is impossible that in 54, for instance, when the consuls failed to
pass the law, the curule aediles and the quaestors should have remained
inactive through the entire year without leaving in our sources some
trace of the disturbance caused by the suspension of their administrative
functions. Dio Cassius states that no judicial process could be
undertaken before the enactment of the law; nevertheless Clodius as
aedile in 56 prosecuted Milo before the people prior to the vote on the
sanctioning act.[1155] The quaestors entered office regularly on December
5;[1156] and as the curiate law was carried for them by the consuls, they
were necessarily in official duty for some time every year before their
election could be sanctioned. It seems clear that ordinarily one curiate
law was passed each year, under the joint presidency of the consuls and
praetors, for all the officials who required it.[1157] If that is true,
a postponement of the law, or a failure to pass it, affected all the
magistrates of the year.
The question as to the meaning of this wide divergence between
constitutional theory and actual practice can find an answer only in
the history of the curiate assembly. For a time after the founding of
the republic it remained politically important. From the institution
of the plebeian tribunate (494) to the enactment of the so-called law
of Publilius Volero (471) the curiate assembly elected tribunes of the
plebs.[1158] In 390, according to Livy,[1159] it voted the restoration
of a citizen from exile. Rubino[1160] maintained that this assembly
continued to be a real gathering of the people to the year after the
battle of Cannae, 215, when the exigencies of the war with Hannibal
brought into being a statute whereby the curiate act was passed by a vote
of thirty lictors as the representatives of their respective curiae; in
consequence the sanction was reduced to a formality.[1161] The passage
in Festus on which his theory depends is seriously mutilated; and his
attempted restoration is objectionable chiefly (1) because it required
no statute to keep the people from attending the comitia curiata,[1162]
(2) because without a statute a resolution of the assembly was valid,
if each voting division was represented by a single person,[1163] (3)
because the measure, accordingly, to be a relief to existing conditions,
must have freed the commander rather than the men from the necessity
of going to Rome to enact the curiate law. Whatever may be the true
reading,[1164] we have a right to infer from the extant fragment (1)
that in the year mentioned, owing to the nearness of Hannibal, something
was done to relieve officers in the field from the necessity of coming
to Rome to propose the law for themselves, (2) that the regulation
was permanent.[1165] It is known that the consul Q. Fabius Maximus
presided at the consular elections for 214.[1166] He and M. Claudius
Marcellus, who as proconsul was at the time in command of an army, were
elected.[1167] Down to this time the custom had probably been for men who
were reëlected to an office or who passed from a promagistracy to the
corresponding magistracy, or the reverse, to reënact the lex curiata.
But we may suppose that after the election of 215 Fabius, fearing that
both he and Marcellus might be absent on military duty at the opening
of their official year, secured the passage of a measure, most likely
a senatus consultum,[1168] which exempted from the need of repeating
the curiate law holders of the imperium who were making the transition
above described. In consenting to the arrangement the senate was making
a great sacrifice to the exigencies of the situation. For to maintain
control over the commanders it had insisted that they should begin their
terms with all due formality at Rome.[1169] The lex curiata had proved a
material help to this end. But now the person already in command might
continue from year to year at his post, relieved of the need of coming
to the capital, where he would be temporarily subject to senatorial
control.
This provision of 215 was therefore an important step in the development
of the imperium; and at the same time it tended to destroy the little
importance still attaching to the curiate law. It seems to have been
after this event and partly in consequence of it[1170] that the comitia
curiata, which had long been declining, became at last a mere formality,
attended by none but three augurs as witnesses to the proceedings[1171]
and thirty lictors,[1172] who meekly[1173] cast the votes in obedience to
the command of the presiding magistrates.[1174] It is a noteworthy fact
that whereas the statesman Cicero has much to say of the curiate law,
Livy and Dionysius make little reference to it. Our conclusion must be
that it was more important in the late republic than in the earlier time.
Probably it nearly fell into disuse after 215, to be revived some time
before Cicero. Its rehabilitation was the work of the optimates, for we
find the senatorial party chiefly interested in maintaining it during the
age of Cicero. Since the lex curiata, subject as it was to impetrative
auspices and to obnuntiations, correlated closely with the Aelian and
Fufian statutes, we may reasonably connect its revival closely with their
origin. Cicero[1175] tells us accordingly that the comitia curiata have
continued merely for the sake of the auspices. The curtailment of the
power of this assembly is analogous to the curtailment of the power of
the king; as the latter was reduced, in the rex sacrorum, to a shadow
continued merely for a religious purpose, the curiate comitia were
likewise reduced to a shadow maintained in appearance merely for keeping
up an ancient custom and for the auspices connected therewith,[1176] but
in reality as a part of the religious machinery operated with more or
less effect for controlling refractory office-holders. During the age of
Cicero the senate strove to uphold its theory of the necessity of the
law, while individuals in office and even the entire group of magistrates
for the year looked upon it as appropriate indeed but unessential to
their functions. At its best the theory could be but partially realized
in practice.
Naturally the lictors never refused to vote the lex curiata, but it
was often prevented or delayed by the intercession of the plebeian
tribunes.[1177] As we hear nothing of such action of the tribunes in the
early republic we may well conclude that it was a late usurpation. Their
veto could be offset by a special resolution of the people for dispensing
the persons elected from the need of the curiate sanction.[1178] In
destroying the tribunician power Sulla, perhaps consciously, strengthened
the lex curiata as a weapon in the hands of the senate. He did not treat
the subject, however, with his usual precision; for in 54 we find Appius
Claudius appealing to a Cornelian law in justification of his intention
to govern a province without the sanction.[1179] The procedure of Appius
must have robbed the sanctioning act of the little vitality which it
still possessed. With the downfall of the republic it fell completely
into disuse.[1180]
I. COMPARATIVE VIEW: Spencer, H., _Principles of Sociology_,
ii. chs. viii, ix; Post, A. H., _Grundlagen des Rechts_,
130-6; _Die Anfänge des Staats- und Rechtsleben_, 113 f.;
Jenks, E., _History of Politics_, chs. ix, xi, xii; Schrader,
O., _Reallexikon_, 923-5; _Sprachv. u. Urgesch._ ii³ (1907).
376; Leist, B. W., _Alt-arisches Jus Gentium_, see index, s.
Jus; _Alt-arisches Jus Civile_, i. 337 ff., 368 ff. (fas, ius,
lex); Hirt, H., _Indogermanen_, ii. 522-31 (fundamental ideas
of right and law); Brunner, H., _Deutsche Rechtsgeschichte_,
i. 128-32; Schröder, R., _Lehrbuch der deutschen
Rechtsgeschichte_, 21-7; Cramer, J., _Verfassungsgeschichte der
Germanen und Kelten_ (Berlin, 1906); Seeck, O., _Geschichte
des Untergangs der antiken Welt_, i. 212-4; Kovalevsky, M.,
_Modern Customs and Ancient Laws of Russia_, chs. iv, v;
Ginnell, L., _Brehon Laws_, ch. iv; Hermann-Thumser, _Griech.
Staatsaltertümer_, 67-9 (Homeric); 166-76 (Lacedaemonian);
504-38 (Athenian); Gilbert, G., _Constitutional Antiquities of
Sparta and Athens_, 50-2 (Lacedaemonian); 285-310 (Athenian);
Buchholz, E., _Homerische Realien_, ii. 24-7; Seymour, T. D.,
_Life in the Hom. Age_, 101-9; Moreau, F., _Les assemblées
politiques d’apres l’Iliade et l’Odyssée_, in _Revue des études
Grecques_, vi (1893). 204-50; Finsler, G., _Das homerische
Königtum_, in _N. Jahrb. für kl. Alt._ ix (1906). 313-36;
Fustel de Coulanges, _Ancient City_, 216 f., 244 ff., 329;
_Histoire des institutions politiques de l’ancienne France:
La Gaule Romaine_ (1891); _L’invasion germanique_ (1891); _La
monarchie Franque_ (1888); Farrand, L., _Basis of American
History_, see index, s. Council; Bernhöft, F., _Staat und Recht
der röm. Königszeit_, 145-56.
II. THE COMITIA CURIATA: Schulze, C. F., _Von den
Volksversammlungen der Römer_, 282-307; Newman, _On the
Comitia Curiata_, in _Classical Museum_, xx (1848). 101-27;
Mommsen, _Die patricisch-plebejischen Comitien der Republik_,
in _Röm. Forschungen_, i. 140-50; _Nichtexistenz patricischer
Sonderversammlungen in republikanischen Zeit_, ibid. i. 167-76;
_Bürgerschaft und Senat der vorgeschichtlichen Zeit_, ibid.
i. 269-84; _Die lex curiata de imperio_, in _Rhein. Mus._
N. F. xiii (1858). 565-73; _History of Rome_, bk. 1. ch. v;
_Röm. Staatsrecht_, i. 609-15; iii. 33-42, 316-21; Obudzinski,
_Die Kuriat- und Centuriatkomitien der Römer_; Kappeyne van
de Coppello, J., _Comitien_, 60-86; Hallays, A., _Comices
à Rome_, ch. i; Morlot, E., _Comices électoraux_, ch. ii;
Soltau, W., _Altröm. Volksversammlungen_, 37-106; Humbert, G.,
_Comitia_, in Daremberg et Saglio, _Dict._ i. 1374-7; Liebenam,
W., _Comitia: I. Curiata_, in Pauly-Wissowa, _Real-Encycl._
iv. 682-6; _Curiata Lex_, ibid. iv. 1826-30; Hüllmann, K.
D., _Ursprünge der röm. Verfassung_, 96-8; Rubino, J., _Röm.
Verfassung und Geschichte_, 233 ff.; Madvig, J. N., _Verfassung
und Verwaltung des röm. Staates_, i. 222-6; Lange, L., _Röm.
Altertümer_, i. 396-413; Mispoulet, J. B., _Institutions
politiques des Romains_, i. 194-203; Willems, P., _Droit public
Romain_, 49-54; Herzog, E., _Röm. Staatsverfassung_, i. 106-18,
1059-65; Schiller, H., _Röm. Alt._ iv. 628 f.; Karlowa, O.,
_Röm. Rechtsgeschichte_, i. 48-54, 382-4; Greenidge, A. H.
J., _Roman Public Life_, 250 f.; _Legal Procedure of Cicero’s
Time_, 297-307; Abbott, F. F., _Roman Political Institutions_,
14 f., 18-20, 252 f.; Voigt, M., _XII Tafeln_, i. 97-124
(ethical laws, fas, ius, etc.); _Leges regiae_, in _Abhdl. d.
sächs. Gesellsch. d. Wiss._ vii (1879). 555-826; Bernhöft,
ibid. 145-160; Genz, H., _Das patricische Rom_, 51 ff.; Seeley,
J. R., Livy, 62-70; Munderloh, _Aus der Zeit der Quiriten_,
4 f.; Clason, D. O., _Kritische Erörterungen über den röm.
Staat_, 1-30; Hoffmann, E., _Patricische und plebeiische
Curien_; Nissen, A., _Beiträge zum röm. Staatsrecht_, 39 ff.;
Le Jeune, M. L., _L’imperium des magistrats de Rome sous le
République_; Schwegler, A., _Röm. Geschichte_, i. 663-7; Ihne,
W., _History of Rome_, i. 113 f.; Peter, C., _Geschichte Roms_,
i. 59 f.; Dunning, W. A., _History of Political Theories
Ancient and Mediaeval_, 107 ff.; Willoughby, W. W., _Political
Theories of the Ancient World_, ch. xvi; Nettleship, H.,
_Contributions to Latin Lexicography_, 497-500 (ius), 515-7
(lex); Rothstein, M., _Suffragium_, in _Festschrift zu Otto
Hirschfelds 60stem Geburtstage_, 30-3; Botsford, G. W., _Lex
Curiata_, in _Pol. Sci. Quart._ xxiii (1908). 498-517.