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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