CHAPTER VIII

THE CALATA COMITIA

In seeking for the origin and primitive character of the Roman assembly

we are enabled by comparative study to reach a stage of growth far

anterior to the beginnings of Roman tradition. In its earliest known

form the European popular assembly had the following characteristics,

provisionally enumerated here, but established in the next chapter: (1)

the people who attended were the mass of freemen of a tribe, especially

the warriors; (2) they stood or sat promiscuously, without reference

to sub-tribal groups; (3) measures were proposed by none but chiefs

or nobles, generally after previous discussion in council, the common

members wholly lacking initiative; (4) the speakers were as a rule,

though not exclusively, chieftains; (5) the vote was by acclamation,

the clash of weapons, or some similar demonstration; as a correlate of

(3) and (4) may be added, (6) sovereignty, so far as the idea existed,

resided not in the assembly, which of itself could take no action, but

in the king and chieftains, who made use of the assembly (_a_) for the

publication of news or of projects, (_b_) for securing by their eloquence

the coöperation of the tribe in a plan already formed in council. However

far developed beyond this crude institution the comitia curiata or the

comitia centuriata of the republican period may have been, traces of all

the characteristics above mentioned may be found in the historical Roman

assembly[858]—a fact which justifies the comparative method of approach

to the subject.

We need not hesitate to begin with the unorganized contio as the

earliest form of Roman assembly, to which we may attach the other

features of the European gathering named above. The first problem is to

determine under what influence and for what purpose the gathering of

the people came to be organized in curiae. The notion that the object

was primarily for voting is groundless. The Athenians had the germ of a

tribal assembly in the division of the people by phylae on the occasion

of ostracophory[859] and of the passing of other privilegia (νόμοι ἐπ’

ἀνδρί). The organization was not in this case for the purpose of using

the tribes as voting units, but merely for bringing order and solemnity

to the proceeding. Apparently the assembly of Alamanni was arrayed in

military form for ratifying emancipations,[860] though in the process the

military companies did not vote as units. In like manner, but for a wider

range of functions, we find at Rome the meeting of the people in curiae,

less frequently in centuries, merely for listening, for witnessing, or

for receiving purification. The circumstances that the business of such

assemblies was largely religious, and of such a character that it must

have originated in the earliest Roman times, and that in the greater

number of cases these gatherings were under sacerdotal presidency suggest

that the sacerdotes, particularly the pontiffs, introduced the curiate

organization from the army to make their religious meetings more orderly

and dignified.[861]

All assemblies which met under pontifical presidency for religious

purposes were called calata,[862] evidently from “calare,” a verb which

must originally have been in common use in the sense of “to call,” but

which in historical time was restricted to the technical language of

the sacerdotes.[863] In the latter connection it designates the peculiar

method of summoning used by the pontiffs.[864] Probably, at least in

earlier time, their calatores acted as curiate lictors in convoking the

calata comitia curiata,[865] over which they presided. In all meetings

of the kind in the regal period the people were grouped in curiae; under

the republic the centuriata comitia calata were also used for certain

purposes.[866] The usual meeting-place of the calata comitia curiata

was in front of the curia Calabra on the Capitoline Hill.[867] With

reference to their object, they may be classed as non-voting and voting;

the former were purely religious, the latter were for the settlement

of questions which were in part civil.[868] First to be noted of the

non-voting assemblies were those in which the people gathered in comitia

under the presidency of the king,[869] in the republic under the rex

sacrorum, to hear the proclamation of the fasti. On the calends of each

month a pontifex minor, as clerk of the college,[870] announced to them

on what day, whether the fifth or seventh, the nones would come.[871] On

the nones the king again summoned the people to hear the calendar of the

month,[872] read probably by the same pontifex minor. This custom fell

into disuse with the publication of the calendar in the Forum, beginning

in 304.[873]

Equally passive were those comitia calata which under the presidency of

the supreme pontiff witnessed the inauguration of the three flamines

maiores,[874] probably of the king in the regal period, and certainly

of the rex sacrorum under the republic.[875] As warlike Mars had his

shrines outside the pomerium,[876] his chief temple being in the Campus

Martius,[877] it is a probable conclusion that his flamen was inaugurated

there—in the regal period in some form of military assembly, under the

republic in the comitia centuriata.[878] The inaugural ceremonies were

performed by an augur;[879] in the case of the sacerdotes it was the

supreme pontiff who requested this service of him,[880] whereas the king

could doubtless command an augur without the coöperation of the pontiff.

A closely related function was the appointment of Vestals by lot, under

the conduct of the supreme pontiff in a public assembly, probably the

calata comitia.[881] The destatio sacrorum and the abjuration of social

rank, other acts which these comitia merely witnessed, will be considered

in connection with the transitio ad plebem and the adrogatio.[882] The

ceremonies attended to by the rex sacrorum on March 24 and again on May

24 may have been in comitia calata, though this is doubtful.[883]

Assemblies of the people were organized in curiae by the pontiffs for

the religious purposes mentioned above, while political measures, so

far as submitted to the people, continued for a time, we may suppose,

to be decided by din in contiones. But when a desire for a more precise

vote began to be felt, the curiate organization naturally offered itself

as most convenient for the purpose. The contention that in primitive

Rome, as among other early peoples,[884] the assembly expressed its

feeling or opinion by noisy demonstration finds strong support in the

most probable derivation of suffragium, “vote,” which connects it with

frangere, fragor, “a breaking,” “crash,” “din,” “applause,”[885] the

prefix sub- expressing the dependence of the action upon the proposal

of the speaker, as in the military succlamare, succlamatio.[886] We

may well believe that even after the organization of the assembly as

comitia—that is, in curiate, centuriate, or tribal divisions[887]—the

voting within the component groups continued for a time to be by din,

as is suggested by the phrase sex suffragia, applied to the six oldest

groups of knights in the comitia centuriata.[888] Voting by heads in

large gatherings is in fact a slow, cumbersome process, the product of a

well-developed political life. In all probability it originated in the

centuriate assembly—in which the military array facilitated the taking of

individual opinion[889]—and afterward extended to the other comitia. This

line of reasoning suggests that when in the regal period a desire began

to be felt for a more precise vote, and the curiate organization readily

offered itself for the purpose, the expedient was adopted of taking the

vote of each curia in order by din and then of deciding the question at

issue by a majority of the thirty curial votes.[890] There can be little

doubt that this step also was first taken by the pontiffs.

The testamentary calata comitia met twice a year, probably on fixed

days.[891] It has been a disputed question whether the oldest form of

testament here referred to required a vote of the people. Rubino[892]

strongly upheld the negative on the ground (1) of analogy with the

procedure in inaugurations, (2) of analogy with other forms of testament,

none of which required a vote, (3) of the word testamentum itself, which

refers to witnessing, (4) of the conviction that the patricians would

not leave to the popular assembly the making of private law, (5) on the

authority of Theophilus,[893] who mentions the people’s witnessing of the

testament, (6) on the statement of Gellius[894] that wills of the kind

were made “in populi contione.” Against this reasoning may be urged (1)

the analogy from the adrogatio, (2) the analogy from the testamentary

adoption, to both of which cases the simple testament was similar, and

both of which required a vote of the people,[895] (3) the consideration

that the act of witnessing in the assembly did not necessarily exclude a

vote, (4) the statement of Gaius[896] that calata comitia were convoked

“for making”—not for witnessing—testaments, (5) the circumstance that

the contio was often a preliminary stage of the voting assembly[897] in

addition to the fact that pontifical language applies the term to comitia

in general.[898] These arguments offset all the points offered by Rubino,

unless it be the fourth, which is a purely subjective consideration.

Arguments (1), (2), and (4) are especially effective for establishing

the fact of a vote in the case under consideration. But the problem

can be most satisfactorily solved (6) by comparative investigation. In

the constitution of the early Indo-European family the estate belonged

jointly to all the male members, and for that reason could not be given

away by the pater.[899] The primitive Germans accordingly made no wills,

but left their property to their children, or in failure of children to

the near kin.[900] In Attica the right to bequeath was instituted by

a law of Solon, which allowed it to those only who had no legitimate

sons;[901] in Sparta the right was introduced by Epitadeus, perhaps

early in the fourth century B.C.[902] Testaments were unknown in Gortyn

at the time when the _Twelve Tables_ of this city were published,[903]

and similar conditions existed in other states of Greece.[904] The rule

holds, too, for ancient India.[905] The Slavic householder could not

alienate his land without the consent of the community.[906] As there is

no reason to assume a more advanced condition for primitive Rome, we may

conclude that, as indicated above, the calata comitia not only witnessed

but ratified testaments.[907]

Mommsen has attempted to fix these days as March 24 and May 24,[908] on

which the rex sacrificulus performed comitial ceremonies not clearly

described by the sources.[909] He admits, however, that the testamentary

comitia met under the pontifex maximus rather than under the rex

sacrorum[910]—a fact directly opposed to his contention. We should be

surprised also to find the testamentary days so close together.[911]

But the most effective argument against his view is that this function

performed by the rex sacrorum could not have been the holding of

comitia, for the time during which it continued was nefas.[912] The

ancient authorities state that “the sacrificial king, after performing

sacred rites, comes into, or makes a sacrifice in (venit or litat), the

comitium,”[913] but they do not mention an assembly; hence we may infer

that in the fasti for these days reference is to some other function than

the holding of comitia. The form of testament above described fell early

into disuse,[914] so that the conditions and ceremonies attending it

became a subject of study for antiquarians.

Adoptions ordinarily came before the praetor. The legal object was

the perpetuation of the family and its religion. The law granted the

privilege accordingly to those only who had no children and who were

incapable of having children. It required further that the act should not

imperil the continuance of the family from whom the adopted came.[915]

Adrogatio was the adoption of a person who was his own master and who

accordingly consented to pass under the paternal power of another.

The word signifies that the act to which it applies required a vote

of the people.[916] It was not undertaken rashly or without careful

consideration.[917] The persons concerned were required first to present

the case to the college of pontiffs, who took into account “what reason

any one has for adopting children, what considerations of family or

dignity are involved, what principles of religion are concerned.”[918]

The age of the man who wished to arrogate was considered—whether in this

respect he was capable of having children of his own, and care was taken

that the property of the arrogated person should not be insidiously

coveted.[919] The adrogator was asked whether he wished the candidate for

adoption to be his real son, and the candidate was asked whether he would

allow himself to be placed in this condition;[920] and the testimonies

were confirmed by an oath formulated by Q. Mucius Scaevola.[921]

If the pontiffs gave their consent, the case came before the comitia

curiata under the presidency of the chief of the college,[922] who put

the question in the following form: “Do you wish and order that L.

Valerius be the son of L. Titus by the same legal rights as if born

of the father and mother of that family, and that the latter have the

power of life and death over the former as a father over a son? This

order I request of you, Romans, to grant, just as I have pronounced

the words.”[923] The curiae decided by vote.[924] At the same meeting

the arrogated son was required to declare that he forsook the religion

of the family or gens of his birth—detestatio sacrorum[925]—and by a

similar declaration the adrogator received him into the sacra of the new

family.[926] This form of adoption could not apply to youths before they

had put on the manly gown, or to wards or women; for children and women

had no part in an assembly, and guardians were not allowed under any

circumstances to place their wards in the power of another.[927]

A modification of adrogatio is testamentary adoption, of which the only

well-known case is that of Octavius, the heir of the dictator Caesar.

Octavius came before a praetor with witnesses and formally accepted the

inheritance;[928] afterward he was declared adopted by a vote of the

curiae.[929] As this case is nearly akin to the adrogatio, there can be

no doubt that the vote was taken in the calata comitia under pontifical

presidency.[930]

Distinct from the adrogatio, though analogous to it, was the direct

passing of individuals and of gentes from the patrician to the plebeian

rank—transitio ad plebem. The motive was a desire to qualify for the

tribunate of the plebs,[931] or more generally to widen the range of

one’s eligibility to office.[932] The history of the republic affords

several instances of the transition of individuals;[933] and two plebeian

gentes, the Octavia[934] and the Minucia,[935] boasted of having passed

over from the patricians. Even if these boasts rest upon genealogical

falsifications,[936] the Romans thought such an act legally possible; and

they formulated a process applicable to every case whether of individuals

or of gentes. It was through some other ceremony than the adrogatio, for

the latter could not apply to groups of persons. Clodius was following

the more general procedure here referred to when in the year 60 he

tried to make himself a plebeian without recourse to adrogatio. First

he abdicated his nobility by an oath, probably taken in the comitia

calata;[937] then coming before an assembly of the plebs, he held himself

ready to receive plebeian rights through a resolution introduced by the

tribune Herennius.[938] The process allowed the retention of the name,

sacra, and all other privileges not dependent on the patriciate.[939]

But Metellus, the consul, objected that a curiate law was needed to

make the act valid, and the senate evidently agreed with him.[940]

Metellus may have had in mind the transition through the adrogatio,

which required a curiate law, or more probably he was thinking of a

vote of the curiae in addition to the other formalities which Clodius

was passing through.[941] The complete process accordingly would have

been the abjuration of the patriciate, confirmed by a curiate law, and

the reception of plebeian rights through a plebi scitum. Clodius was

not so foolish as to suppose that a process of transitio invented by

himself would prove acceptable to the senate and magistrates, and must

therefore have followed as closely as possible the formula which he

believed to be legal. But when Metellus raised the objection, and when

the tribunes persisted in interceding against the plebi scitum,[942]

he yielded for the present, and in the following year had himself

arrogated by a plebeian named Fonteius, from whom he was forthwith

emancipated.[943] This procedure, too, allowed him to retain the gentile

name of his birth,[944] his imagines and sacra,[945] and consequently his

inheritance. The oath taken in the calata comitia accordingly was not the

detestatio sacrorum usual in arrogations, but a form of declaration which

reserved these privileges, with the understanding that in this case the

arrogatio was not for the customary object but to enable him to change

his rank.[946]

Analogous to the transitio ad plebem is the elevation of a plebeian to

the patrician rank. The Romans believed that eminent plebeians, including

foreigners of distinction newly admitted to citizenship, were sometimes

granted the patriciate not only through the regal period but also in the

opening years of the republic. For the republican age they represented

the bestowal as a double act, a resolution of the people followed by

coöptation into the senate.[947] In stating that the first consuls

chose the best men from the commons, made them patricians, and with

them filled the senate to the number of three hundred, Dionysius[948]

apparently has in mind the consuls’ function of recruiting the senate

before the Ovinian legislation,[949] together with their initiative in

granting the patriciate. The Roman view that the bestowal required a

vote of the people is further proved by the procedure of Julius Caesar

and of Octavianus in creating new patricians; for in this function

they doubtless followed tradition as nearly as possible. In 45 a

plebi scitum,[950] proposed by L. Cassius Longinus and supported by a

senatus consultum,[951] empowered Caesar to recruit the patrician rank.

Octavianus proceeded in a similar manner except that a consular law,[952]

approved also by a senatus consultum,[953] was passed for the purpose.

As the object was religious, we may suppose that the qualifications of

the candidates were previously examined by the pontifical college. On the

analogy of the transitio ad plebem it may be assumed further that the

candidate abjured his plebeian rank in the calata comitia, which then

confirmed his declaration by vote.[954]

But whether the Romans were right in supposing patricians to have been

created in the early republic has been doubted. Mommsen[955] takes the

ground that when the curiae ceased to be exclusively patrician, elevation

to the rank became impossible, and that therefore no cases of the kind

occurred after the fall of the kings. But in such a matter it is absurd

to speak of impossibilities; everything was possible which the governing

power approved, and the argument falls when its basis, the purely

patrician state, has been removed.[956] The cessation was in fact due to

the growing exclusiveness of the patricians, who as they came to supplant

the king in the government, learned to value their privileged position so

highly they were unwilling longer to share it with others. Just when the

closing of their rank was effected has not been ascertained, but there

is no good reason for rejecting the Roman view that for a time after the

fall of the kings plebeians continued to be admitted: in reality the

indications are strong for a relatively late closing.[957]

We may next inquire how patricians were created in the time of the

kings. As the history of the regal period is in general a reconstruction

with material drawn from later time, so in this particular case ancient

writers sometimes date back to the age of the kings the usage of the

republic. Dionysius[958] accordingly states that “the Romans by vote

transferred Servius Tullius from the plebeian to the patrician order,

just as they had previously transferred Tarquin the Elder and still

earlier Numa Pompilius.” But the Romans preferred to reconstruct the

process on an entirely different principle. Regarding the kings as the

founders of all the fundamental institutions, the patricians looked upon

their superior rank as a gift of these monarchs. The patriciate depended

upon senatorial membership, which was at the disposal of the kings.[959]

This view is well adapted to explain the creation of the senate; but

for the period after its establishment Livy[960] adds to the adlectio

of the king a coöptatio by the patres (senators). Livy’s account of the

usage here given is reasonable; the king indicated his preference as

to the choice of advisers, but a powerful council, such as the senate

must have been, at least in the later regal period, would have the final

decision on the question of admitting a new member. The conclusion is

that toward the end of the monarchy, if not from the beginning, plebeians

were admitted to the senate, and through it to the patriciate, by the

coöperation of the king and the senate, the people having nothing to do

with the matter.[961] But after the overthrow of the monarchy the vote of

the people was substituted for the will of the king, coöptation by the

senate continuing as before.[962]

The patriciate was acquired not only through bestowal by the state, but

also through the adoption of a plebeian into a patrician family. Several

cases of the kind have been ascertained.[963] The act took place before

the praetor[964] and did not concern the comitia. Probably a preliminary

examination by the pontiffs was necessary to adoptions as well as to

arrogations.[965]

Rubino, J., _Röm. Verfassung_, 241-53; Mommsen, _Röm.

Forschungen_, i. 123-7, 397-409; _Röm. Chronologie_, 241 ff.;

_Röm. Staatsrecht_, ii. 33-41; iii. 38-40; Lange, L., _Röm.

Altertümer_, i. 131-4, 177 f., 356 f., 362, 398-401, 459, 795;

ii. 518, see also indices s. Adrogatio, Calatores, Detestatio

sacrorum; _Transitio ad plebem_, in _Kleine Schriften_,

ii. 1-90; Madvig, J. N., _Verf. u. Verw. d. röm. Staates_,

i. 222-6; Herzog, E., _Röm. Staatsverfassung_, i. 108-11,

1062-4, 1075; Mispoulet, J. B., _Institutions politiques

des Romains_, i. 202 f.; Willems, P., _Droit public Rom._

53 f.; Drumann-Gröbe, _Gesch. Roms_, ii. 187 ff.; Wissowa,

G., _Religion und Kultus der Römer_, 440 f.; Hallays, A.,

_Comices à Rome_, 16-9; Mercklein, D. L., _Coöptation der

Römer_, 11-44 (of the gentes and of the senate); Helbig, W.,

in _Comptes rendus de l’acad. des inscr. et belles-lettres_,

xxi (1893). 350-3; Büdinger, M., _Cicero und die Patriciat_,

in _Denkschr. d. Kaiserl. Akad. d. Wiss. Phil.-hist. Cl._

xxxi (1881). 211-73; _Der Patriciat und das Fehderecht in den

letzten Jahrzehnten der röm. Rep._, ibid. xxxvi (1888). 81-125;

Baudry, F., _Adrogatio_, in Daremberg et Saglio, _Dict._ i. 83

f.; Saglio, E., _Calator_, ibid. i. 814; Humbert, G., ibid.

i. 1375 f.; _Detestatio sacrorum_, ibid. ii. 113; Leonhard,

_Adrogatio_, in Pauly-Wissowa, _Real-Encycl._ i. 419-21;

Samter, _Calatores_, ibid. iii. 1335 f.; Kübler, _Calata

comitia_, ibid. iii. 1330-4; Ruggiero, E., _Diz. ep._ ii.

1185; Smith, _Dict._ i. 26 f.; Nettleship, _Contrib. to Lat.

Lexicog._ 400.

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