ZEITSCHRIFTDER SAVIGNY-STIFTUNG FUR RECHTSGESCHICHTE HERAUSGEGEBEN VON TH. MAYER-MALY, D. NORR, W. WALDSTEIN,A. LAUFS, W.OGRIS,M. HECKEL, P. MIKAT, K. W. NORR HUNDERTFÜNFTER BAND CXVIII. BAND DER ZEITSCHRIFT FUR RECHTSGESCHICHTE ROMANISTISCHE ABTEILUNG 1988 HERMANN BÖHLAUS NACHF. WIEN—KÖLN Sonderdruck / Im Buchhandel einzeln nicht käuflich! J. Nicols, Ordo decurionum713 On the Standard Size of the Ordo Decurionum) I. Introduction to the problem. — Though it is nowhere explicitly mentioned inthe various sources, scholars including Mommsen, Liebenam, Kühler,Abbott and Johnson, Duncan-Jones and Garnsey have generally agreedthat one hundred was the standard or statutory size of the municipal ordodecurionum in the Latin speaking West). The issue is an important one and notjust because it has been addressed by so many scholars over so many years, butalso because our understanding of many aspects of municipal administrationdepends on that figures). Two recent examples illustrate the range of the discussion. The data on thesize of the ordo have been employed to calculate the changing standards ofgenerosity and personal fortunes of the decurions and, also, they have been usedto define the period when membership in the ordo became hereditary). Theevidence traditionally cited in support of the one hundred figure is, I will show,inadequate. The conclusion is confirmed by chapter 31 of the newly discoveredlex Irnitana). The discussion is not, however, limited to the question of thestandard size, but touches on a number of related problems associated with therules and conventions of municipal administration. II. Traditional arguments for the standard of 100. — The argument for 100 isstated most convincingly by Duncan-Jones. He writes: "At three Italiantowns, Cures Sabini, Veii and Canusium, the number of decurions is explicitlyattested as 100" and cites ILS 460, 6579, 6121 as the evidence). Regarding thefirst two, the size can be deduced from the fact that the "decurions" are calledcentumviri7). In the third case, the album Canusinum, we have a register of all thedecurions in the town of Canusium in southern Italy. Between the most seniorof the quinquennales and the most junior of the pedani, there are exactly onehundred decurions. Furthermore, though this argument is not made by Duncan-Jones, the very word, decurio, suggests an organization by tens. 1)This article was written and accepted for publication in this journal beforethe details of the lex Irnitana were known. In light of the importance of thischarter for the subject, it was determined to postpone publication in order totake full advantage of the new material. For their comments and suggestions, theauthor wishes to thank Professors Dieter Nörr, Armin Stylow, MichaelCrawford and R. J. A. Talbert. 2)Literature: Th. Mommsen, Römisches Staatsrecht III, 845, is still thebasic discussion of the material. Also: W. Liebenam, Städteverwaltung imrömischen Kaiserreiche, Leipzig 1900, 230; Kühler, art. "decurio" RE IV,2319; F. F. Abbott and A. C. Johnson, Municipal Administration in the RomanEmpire, Princeton 1926, p. 65 and Nos. 136 and 151; R. Duncan-Jones, TheEconomy of the Roman Empire, Cambridge, 283; P. Garnsey, "Aspects of theDecline of the Urban Aristocracy in the Empire", ANRW, Berlin 1974, II, 1.229ff. 3)The size of the municipal council in the Greek speaking east was morevariable, see Kübler, 2323-4. This discussion is primarily concerned with thesituation in the Latin speaking west. 4)For the former, see Duncan-Jones, 283, on the latter, Garnsey, 243ff. 5)J. Gonzales, The lex Irnitana: A New Copy of the Flavian Municipal Law,JRS 76 (1986) 147. 6)P. 283. 7)The word decurio does not provide much of an indication of the total sizeof the ordo, see below. The most significant contribution of Duncan-Jones in respect to this questionis methodological. By the using the data on the distribution of sportulae todecurions he has attempted to calculate the size of the ordo in various muni-cipalities. He observes, for example: "At Ostia two accounts of the same bene-faction show that there were 110 decurions of the city in the late second century:in one version their sportulae cost HS 2, 200 in all, and in the other the rate isHS 20 per head"). Alternatively, one may calculate the number of decurions bytaking the total amount of the bequest, reckoning a "standard" return of 6%and a "standard" distribution of HS 24. The problem with these calculations,however, is that they reveal, Duncan-Jones argues, ordines with 110, 114 and105 decursions). III. Problems and inconsistencies in the traditional arguments. — The argu-ments based on the use of the word centumviri are inconclusive for severalreasons. First, because this term was not used elsewhere to describe the ordo,there may be some doubt whether the implicit figure can be universally assumedin communities in which the councilors have other names). Moreover, there is noreason to believe that such words like centumviri or centurio/a always assumedsome unit of exactly one hundred. There is a similar problem with the evidence from Canusium. The documentsupporting the argument is a bronze plaque, the album Canusinum, which beginswith the statement: Ilvir.quinquenn.nomina.decurionum.in.aere.incidenda.curaverunt The problem is that the total of nomina which follow is not one hundred but onehundred and sixty-four)! There are, moreover, other recognized "irregularities" associated with astandard of one hundred. The town of Castrimoenium (off the Via Appia) had,it is believed, an ordo of thirty (ILS 3475). Though the evidence is not definitive,Duncan-Jones believes that the senates of the Italian town of Petelia and theAfrican town of Gor also numbered thirty). Finally, and relevant to this dis-cussion only because it is written in Latin, is ILS 6090, an epistula from unknown3rd century emperors to the town of Tymandus in Pisidia. This documentextends the ius et dignitatus civitatis to the community and allows for an ordo offifty decurions. Other sources relevant to this problem provide, unfortunately, little or nousable information. The word decurio (as noted above) suggests an organizationby "tens". The jurist, Pomponius, explains, however, that the tens are notdivisions of the ordo but divisions of colonists: D. 50, 16, 239. 5: decuriones quidam dittos aiunt ex eo, quod initio, cumcoloniae deducerentur, decima pars eorum qui ducerentur consilii publici gratiaconscribi solita est. 8)CIL XIV, 353 and 4642. 9)Ibid. 10)On the variety of names, see Kübler, 2315-8: senatores, conscripti,patres, decuriones, curiales are attested. Cf. Mommsen, Röm. Staatsr. III, 440. 11)As there is some duplication, the actual number of different names is onehundred and fifty-nine, see below, IV, B. 12)Ibid. 714 Miszellen J. Nicols, Ordo decurionum 715 The word itself provides then no clear indication of the total size of theordo). With the exception of the lex Irnitana (see below, sect. IV, A), the legalmaterial provides no specific numbers. The municipal charters employ formulaewhich define the quorum necessary for legally binding action (usually 2/3 ofthe decurions must be present) and what the majority must be for differentkinds of decrees (usually a simple majority of the quorum). Finally, the relevantsection of the Digest, entitled de albo scribendo, 50, 3, also fails to provide anyspecific indication of a total. When one considers the variation in all these figures noted here, one may wellwonder whether there is any reason at all to believe that the standard size of theordo in the Latin West was one hundred or that there was any "standard" at all. IV. A re-assessment of the problem: Some suggestions on organization andnumbers. — The evidence suggests that there was no standard number of regularmembers in a municipal ordo; indeed, the size of the known orders varies betweena low of 30 and a high of 100. If we include honorary members, the number wasmuch higher, in the case of Canusium it was as high as 168. In what follows,some of the central documents on this issue are reviewed in respect to thisconclusion. A. The Lex Irnitana: The crucial piece of new evidence is chapter 31 of thelex Irnitana. Rubrica. De convocandis edicto decurionibus at sublegendos decuriones. Quo anno pauciores in eo municipio decuriones conscriptive quam LXIII,quod ante hanc legem rogatam iure more eiius municipii fuerent, erunt, nisi sieo anno iam erit facta decurionum conscriptorumve lectio sublectio, qui eo annoduumviri iure dicundo praerunt, ambo alterve eorum primo quoque tempore,uti quod recte factum esse velint, ad decuriones conscriptosve, cum eorum partesnon minus quam duae tertiae aderunt, referto, quo die placeat legi sublegisubstituive eos, quibus adiectis ad numerum decurionum conscriptorumve in eomunicipio decuriones conscriptive futuri sint LXIII, quod ante hanc legemrogatam iure more eiius municipi fuerunt. Eique, cum ad eos de ea re relatumerit, primo quoque tempore diem ei rei, dum ne ex his diebus, per quos, ut res ineo municipio prolatae sint, futurum erit quive dies propter venerationem domusAugustae festi feriarumve numero erunt, neve tum quicquam XXX dies ab eodie, quo de ea re decernetur, futurum erit, proximum quemque, quo die iusfieri poterit, ab eo XXX die destinanto, de quo die maiior pars eorum censuerit.Ilviri ambo alterve eorum primo quoque tempore agito ita uti eo die decurionesconscriptive quicumque per aetatem ... Several points are noteworthy in this chapter. First, the statutory size of theordo is twice stated to be 63 decurions. Second, and more important than the simple statement of the number, is thefact that the size was determined by local custom and law and not by anydirective of the central government: LXIII quod ante have legem rogatam iuremore eiius munipici fuerunt. This suggests that the policy of the central govern- 13)Mommsen suggests that the original number of colonists must have beenone thousand, hence an ordo of one hundred, Röm. Staatsr. III, 842. His argu- ment is somewhat circular. 14)Gonzales, 209; lex Irnitana, cc. 29, 31, A, D, G, L, 61, 62, 64, 67, 69, 70, 72, 73, 76, 79, 80, 83. 15)Lex Irnitana, cc. 31, A, G, 61, 62, 64, 67, 69, 70, 73, 76, 80. ment was to allow the individual communities to determine the appropriate size,that other communities, even if they did not have 63 decuriones, probably had atraditional number (iure more eiius municipi) which could be inserted at theappropriate place in the text. There is some indirect confirmation for this notion.In the Flavian charters, a quorum for valid business is defined in terms of apercentage of the regular members of the ordo, usually two-thirds16). To approvea decree required usually a simple majority. This method allowed the centralgovernment to define minimum standards but was still flexible enough toallow for a wide variety in the absolute numbers of the ordo in any individualcommunity. Third, this chapter is also interesting because it specifies that the duumviriare to ensure that the number of decurions does not fall below 63 in any givenyear (in hoc anno). This is consistent with what is known from other places;namely that in the western provinces and in Spain it was the duumviri who hadsuch censorial power"). How often would this procedure be necessary? Assumingthat the normal entry into the ordo was through election to a magistracy andthat there were the usual two quaestors in Irni per year, then there would be foreach generation of 33 years a potential for 66 new members. This suggests thatthe members would probably have to be added, but not in every year. B. The Album Canusinum: The Album Canusinum offers another perspective.Column I of the document lists the municipal patroni. Thereafter, beginning atthe top of Column II, we find the quinquennalicii and continue through the loweroffices adlecti inter quinquennalicii, II viralicii, aedilicii to quaestorii (those whohad actually held municipal office) to the pedani (who had not). The list con-cludes with the names of the praetextati. It is, indeed, true that there are onehundred and sixty-four names given on this list of decurions); it has also beenobserved that, if we eliminate the sixty-four individuals who are either patronior praetextati, we have exactly one hundred names arranged in the proper se-quence defined by Ulpian; that is, there are one hundred names between themost senior of the quinquennalicii and the most junior of the pedani (D. 50, 3).If the one hundred reflects the standard number of "regular" decurions, then theother sixty-four nomina must refer to decurions of a different category. Thesesixty-four would be individuals whose membership was perhaps more "potential"than "actual"19). There is good reason to believe that such distinctions were in fact made. Thejurist, Modestinus, notes that just being listed on the album did not necessarilymake someone a decurio, rather, the membership must be obtained in accordancewith the law, secundum legem (D. 50, 2. 10). It is not clear what law he is referringto here (probably the lex municipalis)), but the following sections of the Digest 16)See above at note 14. 17)On this point, Gonzales, 200; Liebenam, 258; H. Galsterer, Unter-suchungen zum römischen Städtewesen auf der iberischen Halbinsel, 1971, 56-7. 18)See above, n. 11. 19)Garnsey calls the combined group the "Greater Ordo" (p. 245), butoffers no distinguishing characteristic for either the "Greater" or the "Lesser"ordo. 20)Michael Crawford has suggested as much to me. 716MiszellenJ. Nicols, Ordo decurionum717 (50, 2, 11-13, from Callistratus and Papirius Justus) take up the question ofsome of the impediments to membership in the ordo. That is, the jurists aredefining here which impediments, (e.g. maximum and minimum age or whethera decurio who had been relegated might subsequently be readmitted) excludedan individual from membership in the ordo). Alternatively, Modestinus mayalso be acknowledging the fact that towns like Canusium did indeed assign thename of decurio to individuals who were not otherwise eligible for membership.In this respect it is important to note that there were quite honorable reasonsfor the impediment. The first names on the list of decurions of Canusium arenonresident patrons like the praetorian prefects Appius Claudius Julianus(PIR2 C 109) and L. Didius Marinus (PIR D 71). They are followed by di-stinguished non-resident senators of consular and praetorian status. Anotherindication that there were different categories of decurions is the fact that fiveof the eight equestrians are "doublelisted"; that is, they appear once among thepatrons and once in their respective municipal rank22). That is, distinctionsbetween the two groups of decurions were indeed made. In sum, a decurio secun-dum legem must be distinguished from an honorary decurio. I would suggest that the thirty-four non-resident patrons and the twenty-fivepraetextati became honorary decuriones and received the ornamenta decurionatusor the commoda decurionum). There were then one hundred regular membersof the ordo of Canusium and any number of others entitled to the honors andprivileges thereof. Regular members voted, honorary members could not (sedsuffragium inter ceteros Terre non possunt, D. 50, 2, 6, 1, is the formula. Seefollowing paragraph). We do, in fact have numerous examples of these decora-tions. For example, an inscription from Ariminum notes that a certain C. ValiusPolycarpus had received the ornaments decurionatus (CIL XI, 6378). An in-scription from Suessa conferring honors on Titius Chresimus reads: ... ut aquaedigitus in domo eius flueret commodisque publicis ac si decurio frueretur, CIL X,4760 = ILS 629624). As Augustus allowed retired centurions and militarytribunes the rank of decurion in their patriae), the ornamenta and commodamust have been fairly common. Indeed, Liebenam concludes: „Überaus häufigerfolgte auch im Osten die Verleihung des Ratsherrentitels ehrenhalber anPersonen aller Art"). C. The Lex Ursonensis: This charter, though Caesarian in date, also providessome information on the size of an ordo. For example, to authorize the cooptation 21)Liebenam, 233; Kübler, 2326 and Garnsey, Social Status and LegalPrivilege in the Roman Empire, Oxford, 1970, 243, discuss the various im-pediments. 22)Garnsey counts four, Aspects ..., 245, but there are five: Ligurius,Flavius Crocalianus, Galbius and the two Aelii. 22) Ornamenta may not be the correct word. Patrons of senatorial and eques-trian status already possessed the immunities and privileges of the ordo. Seebelow for more on this point. 24) For other examples of the ornamenta, see D e s s a us list in ILS V, p. 679.On the commode, see Liebenam, 237. 25) App. B.C. 5, 128; cf. Marcianus, D. 49, 13. 1: veterans et liberis veteranorumidem honor habuit, qui et decurionibus. 26) P. 240. of a patron, the lex Ursonensis (ILS 6087) required the approval of the majoritywhen at least 50 decuriones were present (c. 97; 125, 127). If, however, thepotential patron was a senator, then the approval of 75% of all the decurionsvoting per tabellam was required (c. 130). The combination of these two formulaesuggests that 75% of the ordo must be greater than 50 (or: minimum size of theordo = 50/.75 = 67), or that there must be at least 67 members of the body. D.The Evidence of the Sportulae: The significance of this conclusion becomesclear when we consider Duncan-Jones evidence of the sportulae. When suchdonatives were distributed, the benefactor gave not only to the actual, votingmembers of the ordo, but also to those who were entitled to its privileges (the"Greater" ordo). Those, for example, who were too young (i.e., praetextati) couldattend the meetings and receive sportulae (CIL IX, 3160= ILS 6530) but couldnot vote: minores vigintiquinque annorum decuriones facti sportulas decurionumacciperunt, sed interim suf fragium inter ceteros ferre non possunt (D. 50, 2. 6. 1).The variety in the numbers calculated by Duncan-Jones (114, 110, etc.) mayreflect the fact that different communities extended these honors at differentrates, and that not all "regular" members of the ordo could be present when adistribution was made27). Indeed the actual number of members present at anyone moment might be reduced by death, temporary absence or a number ofother incapacities. Hence, the total number of those eligible to receive thebenefaction would usually exceed the actual number of units distributed. Insum, what Duncan-Jones has calculated is really the total number of bothactual and honorary decurions in a community at any one time. E.Other Indications: As to the numbers of fifty and thirty, it is important tobear in mind that, however sensible such numbers might be for small commu-nities, the actual evidence is not definitive. The case for thirty is based on afragmentary text stating little more than: ex decreto XXXvirum to whichDessau writes: Trigintaviri videntur esse decuriones Castrimoenium. The otherindications are guesses around which Duncan-Jones appropriately assignsbrackets and question marks. As for the number fifty, it is significant thatTymandus is in the East, where there was more Variation). Moreover, asAbbott and Johnson have long ago recognized, the language of the text in-dicates that the author(s) of the letter have made allowance for the fact that thecommunity will grow and that the number of decurions will grow with it: Nu-merum autem decurionum interim quinquaginta hominum instituere debebis.Deorum entern inmortalium favor tribuit, ut auctis eorum viribus adque numeromaior eorum haberi copia possit). There were then at least three, and perhaps four distinct categories of de-curiones. The first group consists of the "regulars" with full rights including a"seat" (sedere), the right to express an opinion (ius dicendae sententiae) and to 27) The nature of the distribution might have been a relevant factor, too. It isprobably for this reason that the lex Ursonensis specifies percentages (see above,IV, A.). 26) Kübler, 2324; Liebenam, 229; Duncan-Jones, 287, n. 1, andBroughton, ESAR IV, 814. 29) ILS 6090, 11. 34ff., Abbott Johnson, 489. 718 Miszellen J. Nicols, Ordo decurionum719 vote (suffragium)). They also enjoyed all the immunities associated with theirrank31). A second group which, to judge by its position on the album Canusinum,was more eminent than the "regulars", included the municipal patrons of bothsenatorial and equestrian status. Presumably they had all rights except that ofthe suffragium). A third group, in prestige lower than both the patrons and the"regulars" included the praetextati. As they are mentioned on the album Ca-nusinum, they probably had a "seat" and enjoyed the usual immunities, but willnot have been allowed to speak (ius dicendae) or vote (suffragium). Beyondthese, there may be a fourth group of individuals who did not appear on thealbum (at least they are not identifiable on the two surviving alba), who had noseat in the curia, but who shared many of the protections accorded to the othermembers of ordo. This last group was quite varied, including, among others,centurions, veterans), freedmen (ILS 1678 and 5487: M. Egnatius Sciti lib.Venustus ... huic ... (Hispalis) ornamenta decurionatus decrevit) and actors(ILS 5186, 5191, and 5193: M. Aurel. Aug. lib. Agilio Septentrioni pantomime suitemporis prime ... ornamentis decurionat. decreto ordinis exornato ...). The questionremains, however, whether these individuals were assumed among the pedani orformed a distinct group. How many of these groups regularly received the distri-butions limited to decurions is not at all clear, but it may be that such sportulaewere restricted to those whose names appeared on the album. While there is no question that these categories reflect significant distinctionsbased on social status, it is less clear that there are any genuine legal or judicialdistinctions beyond those rights already mentioned (suffragium, ius dicendae, etc.)or the more visible access seats reserved for the members of the ordo in thetheater. In terms of immunities, all members certainly enjoyed the same pro-tections; that is, there does not appear to have been any hierarchy of immunities.Members of the decurial, equestrian and senatorial orders were not sent, forexample, to the mines34). V. Summary of Conclusions. — The widely accepted proposition that onehundred constituted the "standard" or "statutory" number of decurions restson very little evidence. Only the lex Irnitana provides a direct statement of sizeand that is for an order of 63. Other ordines of the Latin west appear to varybetween 30 and 168. One hundred regular members may have been an ideal oreven a maximum, but, because even citizen communities varied in population,wealth, development and tradition, the number of decurions could not be stan-dardized in the Latin speaking West any more than it could in the Greek speakingEast. Moreover, the new evidence of the lex Irnitana indicates that the decision 30) On these "rights", see Kübler, 2325.That is, they were exempted from "plebeian" penalties and tortures,Garnsey, Social Status, 242ff. 32)Again, patrons of senatorial and equestrian status already enjoyed theprotections and privileges of decurial status. Presumably, they now had somespecific privileges in the community which they would not otherwise have had.How "valuable" such privileges were cannot be determined. 33)See above at n. 25. 34)On this point, see Garnsey, 103ff. and 120. about the size of the local ordo was made in accordance with the law and tra-dition of the community itself. The central government, it appears, was onlyconcerned to specify the legal minimum for a quorum and for a majority and didso through percentages rather than through absolute numbers. We must also recognize that the term "number of decurions" is somewhatambiguous. On one hand, it may refer only to the regular, i.e., voting membersof the ordo and, on the other hand, it may also be interpreted to include twoother (and possibly as many as three) groups which, though they did not havesuffragium, nonetheless enjoyed the title, the immunities and some of the rightsof the regular decurions. The total number of "irregular" or honorary decurionsof all varieties in any one town may be close to the sixty-four attested at Ca-nusium. The new arguments based on the implications of how sportulae were distributeddo not unfortunately provide any real indication about the number of regulardecurions. Rather, they provide concrete evidence on the total of both regularand honorary decurions who were present in a town at any particular time. It isuseful to have such data because they suggest that such terms as "decurion" orthe "rights of decurions" were used more loosely by ancients than has beengenerally recognized by moderns. Municipalities had a wide range of possibilities for classifying decurions. Thefirst distinction, as noted, is between regular and "honorary" members, while thesecond assigns each member to a place in a hierarchical structure. Regularmembers were placed on a scale based on seniority and office (the album Canu-sinum, the lexlrnitanaa nd the Digest define the categories). Among the "honorary"members, the most eminent (they are ranked even before the regular members)were patrons of senatorial and equestrian rank. Lower in status, indeed belowthe regular members, were the praetextati and a mixed group of individuals. Thesehonorary members were not eligible for full membership for a variety of reasons:Lack of local residence and/or insufficient years constituted honorable impe-diments; less reputable ones include status and profession. EugeneJohn NicolsP. S. Tacitus records that there were 130 senatores at Trier in 69 (hist. 5, 19).