The Roman assemblies from their origin to the end of the Republic

by George Willis Botsford

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.