Few points in the constitution of
Rome have been more discussed, and still divide opinion more, than the
nature of the patrum auctoritas.
) tells us that on the occasion of the election
of Numa Pompilius, the senate, with the intention of securing the favour of
the people, enacted that when the people had chosen (iussisset
) a king, it should be valid si
patres auctores fierent.
The same phrase occurs in describing
the elections of Tullus (100.22) and of Ancus (100.32). The first question
that arises is whether by patres
senators or patricians. Cicero (de Rep.
2.13, 17, 18, 20)
does not mention expressly the patrum
(though in 100.13 he has the phrase patribus auctoribus
), but in each case speaks of a Lex
Curiata de imperio proposed by the king to the Comitia after his election.
Niebuhr, whose opinion was long generally accepted, identified the two (cf.
2.1, 316-331; Marquardt, 2.3, 184) as the
same thing under different phrases. But this is based upon two theories,
both of them now shown to be erroneous. In the first place it identifies the
with the patres
(patricians); for Cicero says expressly of Hostilius,
“de imperio suo exemplo Pompilii populum
consuluit curiatim;” but there is not the
slightest warrant for this assumption (cf. Seeley on Livy, 1.17
). Secondly, it supposes the Comitia Curiata to
have been a purely patrician body, which it certainly was not [COMITIA
]; and, besides, the
was given to laws as well
as to elections. Hence Niebuhr's view now finds few defenders. The most
important of these is Lange (Röm. Alterth.
ff.); the strongest argument he adduces is drawn from Livy, 6.42
, where we are told in reference to the
election of the first plebeian consul, “patricii se auctores futuros
negabant:” and then a decree was made by the senate, “ut
patres auctores omnibus eius anni comitiis fierent.” This is
certainly fatal to the view commonly held before Niebuhr, which Livy's
language in 1.17 seems to show that he held himself, that the patres
the senate. It is not inconsistent with the second explanation, put forward
by Huschke and Rubino, and now supported by Mommsen (Röm.
1.233 ff.) and Madvig (Verf.
These scholars hold that in this case, as in that of an interregnum,
of the senate, and that the Lex Curiata de
imperio was totally different from the patrum
This is certainly the most natural interpretation of
the language of Cicero (de Rep.
2.13). And it appears to be
proved to demonstration by a comparison of Livy, 6.41
, “nec centuriatis nec curiatis comitiis patres auctores
fiant,” which makes it impossible to identify patres
with Curiata Comitia, with the passage above quoted
from 6.42, which is as great an obstacle to identifying them with the
senate. It is further to be noticed that the term auctoritas,
“sanction,” is well suited to the act of a portion of the
people, but quite inapplicable to the resolve of the whole body. It is no
serious objection to this view that the term patricii
is sometimes used (Liv.
; Sall. Frag. Hist.
3.82, 15, Kr.; Dion. H. 2.60,
6.90; Gaius, 1.3), for the term patricii
be a natural one to use of the patrician section of the senate.
We have five instances on record of the attempted refusal of this patrum auctoritas,
all instances in which some
constitutional change was contemplated. Hence it seems to have held in
earlier times something like the place of the action of the augurs at a
later day (Mommsen, R. F.
1.240 ff.). The significance of the
Publilian Law of 339 (Liv. 8.12
) was therefore
that no merely formal objection should be allowed to interfere with the
deliberate choice of the Comitia Centuriata, but “ut legum, quae
comitiis centuriatis ferrentur, ante initum suffragium patres auctores
fierent.” A Lex Maenia early in the 3rd century B.C. (Cic. Brut. 14
) extended the same rule to elections.
A third view, which has found some support of late, is that put forward by
Peter (Epochen der Verfassungs,
Leipzig, 1841), adopted with
some modifications by Schwegler (Röm. Gesch.
2.155-173) and Walter (Röm. Rechtsgesch.
55, 56; § 41, n. 16 ; § 66). This ascribes a double
meaning to the term, assuming both in elections and in laws passed by the
centuries, first a permissive resolution on the part of the senate, and
then, after the voting, a confirmatory decree on the part of the curies,
both described by the same term patrum
This procedure was then followed in the case of a
consul's election by the Lex Curiata de imperio, proposed by the consul
himself. There does not appear to be any evidence requiring such a
complicated hypothesis. The recorded facts are well explained by Mommsen's
The patrum auctoritas
must be carefully
distinguished from the Senatus auctoritas