Several plebeian gentes are mentioned, including the Minucia and the Octavia,[154] the Lutatia,[155] the Calpurnia,[156] the Domitia,[157] the Fonteia,[158] the Aurelia,[159] and the Licinia.[160] Some gentes comprised both patrician and plebeian families, as the Cassia,[161] the Claudia,[162] the Cornelia,[163] the Manlia,[164] the Papiria,[165] the Publilia or Poplilia,[166] the Aebutia,[167] and the Servilia.[168] Not only do the sources refer to several plebeian gentes by name, but they clearly imply in other ways the existence of such associations. Livy[169] expresses the patrician sentiment that “it would seem an affront to the gods for honors to be vulgarized and for the distinction between gentes to be confused at auspicated comitia” (by the election of plebeians to the consular tribunate). “The distinction between gentes” can only mean the distinction between patrician and plebeian gentes—an interpretation confirmed by a similar statement of Cicero[170] to Clodius, who had passed by arrogation from a patrician to a plebeian gens: “You have disturbed the sacra and contaminated the gentes, both the one you have deserted and the one you have defiled” (by your admission into it). To our other proofs we may add the consideration that the very expression gentes patriciae[171] implies the existence of plebeian gentes. It is natural then that Varro[172] should make gentilitas a condition of men in general. In asserting that there were a thousand gentile names the same authority[173] must have included those of plebeians, for scarcely a hundred belonging to patricians could have been known to him. By no means the weakest argument in favor of the view here presented is the fact that the laws of the Twelve Tables concerning inheritance, tutelage,[174] etc.—which apply not to the patricians alone but to the whole citizen body—assume that every citizen in full possession of his civil rights belonged to a gens.
A passage often interpreted against the existence of plebeian gentes is Livy x. 8. 9: “Vos solos gentem habere.” In this case a plebeian speaker says the patricians claim that they alone have gens (not gentes). The context shows clearly, however, that gens does not here denote an association but is used in the sense of illustrious birth or pedigree,[175] as is sometimes our word family.[176] Wherever a nobility exists it necessarily lays greater stress on descent than do the people, and in all countries the nobles are in a far better position to keep up family connections than are the commons. Naturally therefore at Rome we hear more of patrician than of plebeian gentes. But in view of all the facts mentioned above there should be no doubt as to the existence of the latter. The result of this discussion is that neither in the composition of the gens nor in its position in the community can support be found for Niebuhr’s assumption of a patrician state.[177]
Other evidence for his hypothesis Niebuhr thinks he finds in a statement of Labeo,[178] that the curiate assembly was convoked by a lictor, the centuriate by a horn-blower; while Dionysius[179] says that the patricians were summoned by name through a messenger, the people by the blowing of a horn. Thus Niebuhr maintains that Labeo and Dionysius agree unequivocally in designating the curiae as the assembly of the patricians. But in fact these two sources refer to the customs of the historical age, when the curiate assembly was ordinarily attended by only three augurs and thirty lictors. Horn-blowing under these circumstances would have been absurd. The summoning of the patricians by their own name and that of their father, on the other hand, proves them too few to compose a popular assembly. These citations therefore are far from supporting his hypothesis. His last and greatest proof is the identification of the lex de imperio, passed by the curiae, with the patrum auctoritas. If these are merely two terms for the same act, the curiae must have been made up of patres. But by establishing the fact that the patrum auctoritas belonged to the senate or to its patrician members, Willems[180] and Mommsen[181] have deprived Niebuhr’s hypothesis of its main prop.
Niebuhr evidently believed that the curiae continued exclusively patrician through the whole republican period.[182] This idea, however, must be dismissed for the following reasons: (1) Our sources agree that in the early republic the plebeians and clients continued to vote in the curiate assembly.[183] (2) The plebeians were in the curiae in 208 B.C., when the first curio maximus was chosen from the plebs.[184] (3) In the time of Cicero thirty plebeian[185] lictors represented the comitia curiata, and gave the votes.[186] (4) Arrogations by plebeians took place in this assembly; in the well-known case of Clodius it must be borne in mind that it was a plebeian who arrogated him. (5) The extinction of the patriciate did not involve the downfall of the comitia curiata.[187] (6) The confirmation by the curiae (lex de imperio) of elections in the centuriate assembly was conceived as a second vote of the community.[188] (7) The resolutions of the comitia curiata are always thought of as resolutions of the populus, which Latin literature nowhere restricts to the patrician body. (8) In all ancient literature there is nowhere the slightest hint of a change in the social composition of the curiae or of the comitia curiata in the whole course of their history. What the ancients believed to be true of either institution at any particular period will hold therefore for its entire history.[189]
Of the arguments in favor of Niebuhr’s hypothesis either added by Schwegler[190] or brought by him into greater prominence, one only demands attention. He reasons that if the plebs were in the curiate assembly, it would be impossible to explain the political advance made by the institution of the comitia centuriata; and the constitutional history of Rome would be reduced to an insoluble riddle. Here we have to deal with a subjective argument—the rejection of sources because they do not agree with a preconceived theory. Arguments of the kind, however, which may be easily invented for the support or overthrow of every imaginable proposition, carry little weight. Besides it is easy to show by analogies from the history of other peoples that the presence of the commons in the primitive assembly does not make the constitutional history of Rome a real enigma. In the primitive German assembly, for instance, were included all the warriors; and yet in the more developed German states were monarchies and aristocracies which gave the people little or no voice in the management of public affairs.[191] The Homeric Greek assembly included all freemen, who, however, had little to do with the government in that period, and still less under the aristocracy which followed.[192] In like manner, although the plebeians attended the comitia curiata and had a majority of votes in this assembly, they could not thereby control the government, for they absolutely lacked initiative.[193] The comitia centuriata, a timocratic institution, elevated the rich and degraded the poor. Here as elsewhere the poor lost by the substitution of aristocracy for kingship; but a real constitutional advance was made in the gradations of privilege, which were based on wealth and which reached like a ladder from the humblest member of the proletarian century to the patrician knight in the sex suffragia.[194] These gradations prepared the way for an ultimate equalization of rights. We conclude, then, that the presence of the commons in the primitive assembly is perfectly compatible with a rational view of constitutional development.
With Schwegler, who grants however reluctantly that the commons were received into the curiae before 208,[195] the theory enters upon its present phase; for the great majority of writers since his time have accepted his view, yet with varying opinions as to the date of the change. Mommsen,[196] who more than any one else has made it clear that, so far back as our sources reach, the populus comprised both patricians and commons, nevertheless assumes that the latter were originally outside the populus but were admitted no later than the beginning of the republic.[197] In his reconstruction of the primitive state he supposes that the citizens were all patres, in so far as they, and they alone, could be fathers; or adjectively patricii, in so far as they, and they alone, had fathers.[198] Added to the citizens and their slaves was a class of persons termed clients, half way between freedom and slavery—a class made up from various origins but chiefly by the conquest of neighbors.[199] These clients belonged, as dependents of the gentes, to the curiae, but had no vote in the assembly.[200] Later the plebs were formed from the clients as the bond which united the latter with their patrons relaxed.[201] The plebs, who were free citizens of inferior rank, came into being at the moment when the patricio-plebeian comitia centuriata acquired the right to express the will of the community.[202]
Although Mommsen knows well the weakness of the evidence offered by earlier writers, he adopts the hypothesis of an original patrician state, without attempting a systematic defence. Here and there in his works, however, he mentions some fact or condition which he would like to have considered proof. The following are the chief passages of this kind:
(1) The lack of right to the auspicia[203] and to the imperium[204] on the part of the plebeians proves that the patriciate was the original citizenship.
But we could as reasonably say, with reference to the auspices, that the two Attic gentes which furnished the sacred exegetes contained the only Athenian citizens.[205] The auspicia, as Soltau[206] has noticed, belonged to the ius honorum, as did also the imperium; hence they were both privileges of the nobility. In brief Mommsen’s reasoning would make a governing nobility everywhere impossible.
(2) The cavalry were patrician; therefore the infantry must have been.[207]