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be inferred, that in Livy's day, the beadles of the Curies gave the assent of that body by the formula, “Patres auctores sumus:” and if so, it is unreasonable to question that the law of the dictator Publilius (Liv. VIII. 12,) was well understood by the historian who reports it in the words, “ut legum, quae comitiis centuriatis ferrentur, ante initum suffragium Patres auctores fierent.” It is farther manifest, that the Curiata in later times had a peculiar reference to certain patrician interests; as, when a patrician was to be adopted into another family, we know by the case of Clodius, that a lex curiata was essential. Yet we cannot suppose that any assembly became more patrician as time went on; and everything which indicates that the Curiata in later times was patrician, is an à fortiori proof for the early ages. Lastly, it will be admitted that the political rights of the plebeians were first established by Servius; and that, in order to do this, he constructed a new assembly. But nothing would have been thereby gained, if they already had votes in the Curiata; on the contrary, a loss would have been incurred, if, as Dionysius supposed, the Curies had voted by the head. It is therefore only consistent in him to represent Servius as deceiving the people by a sham assembly, which was intended to lower their political position. This however no one surely will receive. On the whole, without entangling ourselves in any disputable hypotheses, the prima facie evidence is so clear, as at least to throw the burden of proof on one who denies that the Curies were patrician, and that it was their business to give the auctoritas Patrum." While thus far acceding to Niebuhr's view, and acknowledging its importance, I find it impossible to follow him in much beside which he maintains, concerning the functions and activity of the Curiate Assembly after the legislation of Servius. In this paper it is intended to exhibit a simpler view of the subject, which alone, it is believed, our sources of knowledge justify; and afterwards to show, that the passages on which Niebuhr rests for his more artificial and various system will not support the edifice.
* In the passage quoted from Liv. 1. to the senate. It would be hardy to 17, by populus Livy must have meant maintain that he was correct in supthe mass of the community, (whether posing this multitude to receive formal called clients or plebeians) as he con- authority to elect a king; and perhaps : trasts them to the patrician curies and , we must necessarily impute error here. * According to Gellius, (quoted by Niebuhr, note 502, vol. ii.) a pontiff presided in the Curiate assemblies.
That Servius came to the throne by an important revolution, it seems impossible to doubt. Livy and Cicero (de Rep.) agree that he reigned “injussu populi.” The latter expresses it, “Non jussu sed voluntate atque concessu civium;” and adds, “Non commisit se patribus.” This entirely cuts away the ar- . gument of Niebuhr, (vol. I. p. 435,) who denies that the patricians were placed in the centuries according to a timocratic arrangement, because (it seems) no aristocracy likes a distinction to be made between its members. It is elsewhere (p. 484,) distinctly admitted by Niebuhr, that they did not at all like the new assembly, and would have preferred to keep all the power of the State in their own Curies. In fact, there never yet was such a thing as a new national legislature, constructed according to the pleasure of the previous holders of power; nor made except with the express intention of greatly lowering their position. A practical Roman did not indulge idly in organic changes; and the bare fact of the sudden rise of the Centuriate assembly seems to demonstrate that Servius was borne to the throne on the shoulders of the plebeians; though not so much by a victory over the patricians, as by a revolution which expelled the Etruscan dynasty. Servius, however, saw the wisdom and justice of admitting the plebeians into full Quiritan citizenship, and did this by joining them with the patricians in his new assembly; certainly not to the full satisfaction of the latter.
If it be asked, why he did not pursue the more obvious course of distributing them into Curies, and so admitting them into the Curiate assembly, I would not at all reply, “Because the number 30 was too sacred to alter;” but would rather look to the later struggle of the plebeians for the solution. He did not dare to give such offence to patrician religion, as would have been incurred by introducing plebeians,” who might not lawfully celebrate patrician ceremonies. Objections of this nature became hypocritical in after times; but they could not have been urged at all without provoking derision, unless there had been once a period when such bigotry was sincere. Had indeed the patri
cians been disposed to a coalition, they would doubtless have discovered religious rites suited to consecrate the plebeians and sanction their admission as easily as that of Appius Claudius: but as they did not, we can hardly be wrong in inferring that they urged this objection with so much pertinacity, that Servius cut the knot by erecting the new assembly. But what then was to become of the old one, if it was not to be dissolved and annihilated I know not how to imagine, with Niebuhr, that it for one day remained of co-ordinate and equal authority; nor is there, that I am aware, any passage in a Roman writer, from which this can be justly inferred. But the moment we understand that there was a religious reason against destroying the old assembly, the analogy of all antiquity, as indeed of the English ecclesiastical courts, assures us what course was likely to be taken. Its functions, namely, as a court of judicature over patricians, especially in matters of religion, (as marriages, wills, adoptions,) would be left unaltered: while, in the matters which the new assembly was competent to decide, nothing but the religious confirmation would be left to the old one. Nor would it by any means have free leave to refuse this confirmation, any more than an English archbishop can refuse to confirm and consecrate a person duly presented by the Crown. The only admissible ground of refusal would be a formal or religious one; thus, if the Centuries had not fulfilled the conditions necessary for the formal legality or religious validity of their acts, the Curies would refuse their sacred sanction. Among these conditions was reckoned, perhaps from the very beginning, a due regard to the auspices. Such is the a priori probability of the case. Now, a posteriori, we find that all the notices which survive to us of the Curiate assembly (except those of Dionysius, who is led far astray by his own theories,) are agreeable to this view. The only recorded change” which passed on the Curies, is that by Publilius Philo's law; a law which reduced them to manifest impotence, by bidding them to sanction every legislative measure, as soon as it was brought forward, and before the other assembly had accepted it. Yet Publilius passed this humiliating enactment without any opposition of which a whisper has come down to us. Surely we may infer that the assent of the Curies had previously become a merely nominal thing, involving nothing but religious formalities, which were in fact sufficiently provided for, if the Centuriate assembly was subjected to augural rule. That the formal sanction of the Curies remained after Publilius's law only “auspiciorum causa,” as Cicero expresses it, (In Rullum, II. 11,) no one has ever doubted; but Cicero's words may as naturally be understood of the earlier times likewise; and at any rate, he treats the whole affair of a lex curiata as illustrative of “religio.” Livy has only four passages, after the Servian constitution, which speak of the Curiate assembly. by name. In book v. 52, Camillus, in a long and vehement speech, dissuades on religious grounds the proposed migration to Veii. After stating that Rome was built auspicato inauguratogue, he recounts the names of various deities and religious ceremonies which impede the removal, and winds up by saying, that neither the “comitia curiata, quae rem militarem continent,” nor the “comitia centuriata, quibus consules tribunosque militares creatis,” can be held at Veii without violating the auspices.—It is clear from Cicero, (already referred to) that the phrase “quae rem militarem continent” does not necessarily denote any real power in the assembly; for in his day likewise, a consul who had come into office by the election of the centuries, to which the previous sanction of the Curies had been given, could not assume his military rank, but remained in toga, until he passed for himself a lex curiata de imperio. Cicero might still say that the Curies “rem militarem continent,” although the thirty beadles were sufficiently submissive to the consul. The only political importance in the lex curiata de imperio, was, that it gave a tribune one more opportunity of interposing his veto. (Cic. Rull. II. 12.) In Livy, VI. 41, Appius, enraged at the demand of a plebeian consul, says that all the religious ceremonies may as well be overturned: “non leges auspicato ferantur, non magistratus creentur; nec centuriatis nec curiatis comitiis Patres auctores fiant.” Here it may not seem certain whether comitiis is dative or ablative; but I rather believe it is dative. Becker (Antiq. vol. II. p. 320,) justly compares the phrase “[patres] auctores centuriatorum et curiatorum comitiorum,” Cic. Pro Domo, 14; and regards it as certain that auctores there does not mean the Senate, but the Patricians. I confess I feel it very hard to decide, especially concerning the passage in Livy. In neither way do we get fresh insight into the functions of the Curies; yet there is nothing inconsistent with the view which has been presented. The lex curiata de imperio is alluded to in reference to Papirius's Master of the Horse, (IX. 38,) solely because it was accompanied by a bad omen. Again, v. 46, when speaking of the dictatorship of Camillus, we read, (what may be thought of more importance,) that Camillus was recalled from exile comitiis curiatis. To ascertain the full import of this, we ought better to understand the judicial process which exiled him; but that is so uncertain, that Niebuhr (vol. II. 503,) has half a page full of interrogations concerning it, and concludes that “to pronounce with confidence is impossible.” One possibility is, that his vow of one-tenth of the spoil may have subjected him to a sacred sentence when embezzlement was proved. For us at present it is enough to insist that the affair was ostensibly judicial, not political; moreover, that at such a time it was important to call into action the most sacred machinery, in order to suggest that the gods themselves were recalling the great Camillus to save his country. As his guilt was undoubted, the process can hardly have been very legitimate; so that it seems impossible to found any general conclusions upon it. But since with Niebuhr I admit that the “auctoritas patrum,” in the early books of Livy naturally refers to the Curies, it remains to ask what light this will throw on their functions. Now it deserves remark, that in the earlier controversy against the plebeians, we never hear of even a threat to refuse the auctoritas patrum. The constitutional struggle begins upon the appointment of tribunes; previously, the plebeians had no weapons but unconstitutional force. The first hostile proceedings of the tribunes consist in the impeachment of individual patricians, and in defending plebeians who refuse to enlist in the army: with such acts, it would seem, the auctoritas patrum had nothing to do. The patricians defend themselves, sometimes by violence, sometimes by conciliating a majority of the tribunician college. Equally however, when Publilius Volero promulgates his bill, the patricians do not talk about refusing auctoritas; but prepare to stop the voting by force. The same remark applies to the civil contests which follow ;-about the
* The Maenian law, according to Niebuhr, extended the Publilian from laws to elections,