Roman Public Life

by A. H. J. Greenidge

Yet, though the monarchy was not strictly elective, certain quasi-elective processes were connected by tradition with the appointment of the king, on the part both of Senate and people.

The authority of the Senate (auctoritas patrum) is mentioned in connexion with all the transmissions of the supreme office.[185] It is an authority, however, which did not spring from any theory of the Senate’s possessing elective powers, but was simply a result of the universal principle that no man in authority should act without taking advice of his consilium, and was merely an outcome of the constitutional necessity which the king was under of consulting the Senate on all great measures affecting the popular welfare. The greatest of these would be the appointment of a successor.

Secondly, we are told of a formal ratification of the king’s power by the people assembled in the comitia curiata, one which continued into the Republic under the title of the lex curiata, a formal sanction always required for the ratification of an imperium already assumed.[186] It is said to have had this character even in the time of the monarchy, and this was thought to be shown by the fact that the king himself proposed the lex curiata which was to give the sanction for the exercise of his own power.[187] Such procedure was, indeed, necessary, since no one but the king had the right of putting the question to the people; consequently we must accept the view that the lex curiata was not absolutely necessary for the exercise of power, and might be legally, though not perhaps constitutionally, withheld, as it was by King Servius during the early part of his reign.[188]

The Roman jurists, who believed that the king was elected, credited the people with two distinct acts in the creation of a king—first, his election, and then the formal ratification of this election.[189] A parallel for this seemed to be furnished by Republican usage, where the lex was taken by magistrates already elected as a necessary preliminary to the exercise of the imperium. But at this period the magistrates were not elected by the comitia curiata, and the lex of this assembly is a mere survival, a reminiscence of the formal sovereignty which continued to be vested in the curiae. The lex curiata is much more comprehensible in origin if the king was first nominated independently of the people and then challenged their allegiance. It was probably little more than an acclamation on the first summons of the curiae by the king. The preceding king must have already made known to the people his choice of a successor, and the popular sentiment would have been already expressed; thus there was little chance of adverse shouts when the new king challenged the allegiance of his burgesses. If there was a chance of the challenge not being accepted, it might, as we saw, be withheld. But an exercise of the regal imperium which was not sanctioned by these two acts of Senate and people—the expressed will of the one and the declared allegiance of the other—was regarded by later authorities as unconstitutional.[190]

There was also a religious aspect of the king’s appointment. His assumption of power was regarded as incomplete until it had been shown that the gods sanctioned the rule which he had assumed. This was done by the first taking of the auspices[191]—a ceremony observed by magistrates of the Republic before entering on the exercise of their office. This was the final test for the right to exercise secular power; but the king’s position as high-priest of the community was supposed to require another initiatory act.

This was the inauguration, which differed from the taking of the auspices. In the ordinary form of the auspicia the individual entering on office has himself the right of spectio;[192] in the Republic it belonged to magistrates as such, and was never regarded as a merely priestly function. In the special inauguration, on the contrary, the spectio is taken by some other than the person inaugurated. The priest-king Numa is naturally associated with this ceremony by tradition; by him an appointed augur is employed to watch for signs,[193] and this ceremony of inauguration by one of the priesthood, other than the person so inaugurated, is represented as being from this time onwards a standing part of the procedure requisite for entrance on the regal office. But this legend of Numa is rendered somewhat incredible by the fact that the augurs have no right of spectio, and that of all the priests of the Republic it is only the semi-magisterial pontifex maximus, the head of the state religion, who has the right of taking auspices. The fact that the rex sacrorum in the Republic had a special inauguration[194] might lend support to the legend, were it not that this rex had become wholly a priest and thus lost his right of intercourse with the gods through the spectio. The question of the inauguration of the king, unimportant in itself, runs up into two wider questions; the first is whether there was a separation in idea between the king’s magisterial and his priestly functions; the second, whether the king was himself pontifex maximus and thus the supreme head of the Roman religion.

For an answer to the first question it is not safe to appeal to later examples, for the priesthood and the magistracy may have been first sundered during the Republic. But tradition[195] and survivals represent the king as the first priest in the community. His successor, the rex sacrorum, ranks, as a priest, above the three great flamines and the pontifex maximus in the order of the priesthood (ordo sacerdotum);[196] the religious duties of this rex point to the fact that the king’s functions were a regular cultus, not the occasional religious duties of a Roman magistrate,[197] while his wife, the regina sacrorum, had her own simultaneous sacrifices.[198]

But the position of first priest did not in the Republic imply the headship of the Roman religion; the chief pontiff, who is its head, comes, as we saw, low in the order of the priesthood. The importance of cultus and of religious authority springing from higher knowledge are not the same. The pontiffs are only secondarily a priestly, primarily they are a religious order, whose position is based on the knowledge of religious law (fas). The separation between the true priesthood and the presidency of religion may, indeed, have been a Republican development, due to the secularisation of the magistracy; the priestly functions of the magistrate being continued in the rex sacrorum, and the religious presidency being also separated from the civil power, but vested in another official, the chief pontiff. But it is possible that the separation may have been primitive, and that cultus and the knowledge of religious law did not go together. It is evident that great uncertainty prevailed as to the king’s relation to the pontifical college. While one account speaks of Numa selecting Numa Marcius as “the pontiff,”[199] another describes the same king as instituting five pontiffs,[200] and we are further told that, before the lex Ogulnia (300 B.C.), the college consisted of four members.[201] The discrepancy between the two last accounts has been reconciled by supposing that the king himself was reckoned as a member of the college, and that the expulsion of the king reduced the number from five to four.[202] It is possible that the king did not bear the title pontifex maximus and was yet head of the college; it is even possible that, as one account which we have quoted seems to indicate,[203] there was a chief pontiff as his delegate. We can hardly refuse him a place at this board in face of the evidences which point to his universal headship of religion. The creation of the augurate and the priesthoods is his work. Romulus appoints the augurs;[204] Numa institutes the three great Flamines, the Salii, and the Pontifex, although most of the important ceremonies of religion are performed by himself personally.[205] Consequently we may conclude that the appointment of special individuals to these priesthoods must have been a part of the king’s office.[206] It has even been held (chiefly as an inference from the fact that the Vestals and Flamens were in the potestas of the pontifex maximus of the Republic) that the former were the king’s unmarried daughters who attended to the sacred fire of the state in the king’s house, the latter his sons whose duty it was to kindle the fire for the sacrificial worship of particular deities, Jupiter, Mars, and Quirinus. This pleasing picture may have represented the primitive state of the patriarchal kingship; but this had been long outgrown before the close of the monarchy. There we find a fully developed hierarchy and the existence of religious guilds, such as those of pontiffs and augurs, who cultivate the science, not the mere ritual of religion, and who have no possible connexion with the king’s household arrangements.

At the head of this imposing organisation stands the rex, and, in virtue of this position, he is the chief expounder of the rules of divine law (fas). It is a law which has hardly any limits, running parallel with civil justice (jus) but far beyond its bounds. Three methods of its operation may conveniently be distinguished. One is purely religious and ritualistic and is expressed in the control of priesthoods, religious colleges, and cults. The second asserts itself in a control over the life of the ordinary citizen in matters criminal and civil. The third is that which connects the Roman state with other independent communities and forms the international law of the period.