The Roman assemblies from their origin to the end of the RepublicBotsford, George Willis
History
The Roman assemblies from their origin to the end of the Republic
Botsford, George Willis
Constitutional law -- Rome; Rome -- Politics and government
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
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account