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]