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Lex Curiata and the Competence of Magistrates

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Lex Curiata and the Competence of Magistrates LEX CURIATA AND THE COMPETENCE OF MAGISTRATES BY R. DEVELIN The curiae of Rome were something of an anomalous survival. Everything in the tradition points to a curiate constitution prior at least to the reign of Servius Tullius and one scholar has gone so far as to postulate a parallel curiate-centuriate constitution enduring until 367 1). Although the curiate assembly may have retained more relevance than we realise in the early Republic, the latter view finds no real support in the historical tradition and will, I feel sure, attract few adherents. The curies were an arcane remnant of the past and a reason for their continued existence was the passage of the lex curiata, sometimes qualified as de imperio and variously interpreted by modern opinion 2). Some have thought that the emphasis should be placed upon the fact that the law is, as they see it, concerned only with those magistrates invested with imperium, as certain ancient sources seem to specify 3). On the other hand, there have been those who would stress the connection with aus_picia which they perceive; furthermore, it has been maintained that the law also applied to minor magistrates 4). Staveley concludes that "the most satisfac- 1) R. E. A. Palmer, The Archaic Community of the Romans (Cambridge 1970), 189 ff. All dates in this paper are B.C. 2) For a discussion of views up to 1953 see E. S. Staveley, The Constitution of the Roman Republic 1940-1954, Historia 5 (1956), 84 ff.; more recent, though incomplete, H. S. Versnel, Triumphus (Leiden 1970), 319 ff. 3) E.g. Livy IX 38, 15. See K. Latte, Lex curiata und coniuratio, Nachr. Ges. d. Wiss. Göttingen, philol.-hist. Kl. n. F. I (1934-36), 59 ff.; A. Heuss, Zur Entwicklung des Imperiums des römischen Oberbeamten, ZSav. 64 (1944), 77 ff.; P. de Francisci, Arcana Imperii (Milano 1948), 111, 1, 48 ; F. de Martino, Storia della constituzione romana (Napoli 1958-71), 1, 128 ; U. von Lübtow, Die lex curiata de imperio, ZSav. 69 (1952), 169-all with variations on the theme. 4) F. Altheim, Römische Geschichte (Frankfurt 1953), II, 86. 50 tory solution to the basic problems raised by the lex curiata would appear to be that the relationship between the lex and auspicia was a necessary one, whereas that between the Lex and iJnfieriuJn was entirely accidental" 5). More recently Versnel has associated the law with the ap_pellatio impeyatoyia; the latter supposedly took the place of the law, which the privatus cum imperio did not have passed for him, the Lex itself being an acclamation of the general as he left the city 6). Although there are certain hints here which I believe can be followed, it is evident that modern research has been unable to establish a communis opinio, so that if we are to discover the nature of this elusive law, we must turn back to the ancient writers. One tradition links the law to imperium, even in the regal period. Cicero says of Numa 1), qui ut huc venit, quamquam populus curiatis eum comitiis regem esse iusserat, tamen i_pse de suo imperio curiatam Legem t2clit. All the kings up to Servius Tullius are reported to have followed suit 8). This tradition has been dismissed on the grounds that the accounts of Livy and Dionysius do not mention the law and thus are simpler 9). But the argumentum ex silentio is not persuasive, as neither author is accustomed to mentioning the law in the Republic either. The double vote by the same assembly has seemed doubtful, as being unnecessary 1°), but Cicero does say that Numa held the second vote desPite the fact that the assembly had already chosen him king and elsewhere he remarks that this pro- cedure was designed precisely to give the voters a chance to change their minds if they regretted their decision il), Cicero's opinion, but one based on knowledge of how the system worked in his own day. Cicero, again, in a letter to Atticus (IV 16, 12), tells us of those who expressed the opinion that Pomptinus should not triumph: 5) Art. cit., 89. 6) Loc. cit. 7) Rep. 11 13, 25. 8) Rep. 11 17, 31 ; 18, 33 ; 20, 35 ; 21, 38 ; Cicero's account of Superbus' inauguration is lost. 9) A. Magdelain, Recherches sur l' Imperium. La loi curiate et les auspices d'investiture, Trav. et Rech. de la Fac. de Droit et des Sc. écon. de Paris, Sér. Sc. Hist. 12 (1968), 30 ff. 10) G. W. Botsford, The Roman Assemblies (New York 1909), 184 n. I. 11) Leg. Agr. II II, 26. .
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