CHAPTER IX

.

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.

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