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.