Scanned text contains errors.
173
expression " patres auctores fiunt," nor does Livy, in the passages quoted, speak of the lex curiata de imperio. But they speak of the same thing, though they use different expressions. This explains why Dionysius sometimes uses an expression equivalent to " patricii auctores fiunt," for patricii of course means the curiae, and not the senate. (Antiq, Rom. ii. 60, vi. 90.)
Till the time of Servius Tullius there were only the comitia curiata, which, as already explained, first elected a king, and then by another vote conferred the imperium. The imperium could only be conferred on a determinate person. It was, therefore, necessary to determine first who was to be the person who was capable of receiving the imperium ; and thus there were two separate votes of the patres. Servius Tullius established the comitia cen-turiata, in which the plebs also voted. When his constitution was in full force after the exile of the last Tarquin, the patres had still the privilege of confirmhiff at the comitia curiata the vote of the
j
comitia centuriata, that is, they gave to it the " patrum auctoritas " (Cic. De Repub. ii. 30) ; or, in other words, the " patres "were " auctores facti." (Cic. Pro Plancio, c. 3.) That this was the practice under the early Republic, we see from Livy (ix. 38, 39).
In the fifth century of the city a change was made. By one of the laws of the plebeian dictator Q. Publilius Philo, it was enacted (Liv. viii. 12) that in the case of leges to be enacted at the comitia centuriata, the patres should be auctores, that is, the curiae should give their assent before the vote of the comitia centuriata. If we take this literally, the comitia curiata might still reject a proposed law by refusing their previous sanction ; and this might be so: but it is probable that the previous sanction became a matter of form. By a lex Maenia of uncertain date (Cic. Brutus, c. 14), the same change was made as to elections, which the Publilia lex had made as to the enacting of leges. This explains the passage of Livy (i. 17). Accordingly, after the passing of the lex Maenia, the " patrum auctoritas " was distinct from the lex curiata de imperio, while, before the passing of the lex Maenia, they were the same thing. Thus the lex Maenia made the lex curiata de imperio a mere form, for the imperium could not be refused, and so in the later Republic, in order to keep up a shadow of a substance, thirty lictors exhibited the ceremony of holding the curiata comitia ; and the auctoritas patrum, which was the assent of the senate, appears as the mode in which the confirmation of the people’s choice, and the conferring of the imperium, were both included.
This explanation which is founded on that of Becker (Handbuch der Rom. Altertfiumer), and appears to be what he understands by the phrase " patres auctores," is at least more consistent with all the authorities than any other that has been proposed.
In the imperial time, auctor is often said of the emperor (princeps) who recommended any thing to the senate, and on which recommendation that body passed a senatus–consultum. (Gains, i. 30, 80 ; Sueton. Vesp. 11.)
When the word auctor is applied to him who recommends, but does not originate a legislative measure, it is equivalent to suasor. (Cic. Ad. Att. i. 19 ; Brutus, c. 25, 27.) Sometimes both auctor and suasor are used in the same sentence, and
AUCTORITAS.
the meaning of each is kept distinct. (Cic. Off, iii. 30.)
With reference to dealings between individuals, auctor has the sense of owner (Cic. Pro CactifC 10), and is defined thus (Dig. 50.’ tit. 17. s. 175) : Auctor meus a quo jus in me transit. In this sense auctor is the seller (ve?iditor as opposed to the buyer (emtor) : the person who joined the seller in a warranty, or as security, was called auctor se~ cumlus, as opposed to the seller or auctor primus. (Dig. 19. tit. 1. s. 4, 21 ; tit. 2. s. 4, 51.) The phrase a malo auctore emcre (Cic. Verr. 5. c. 22) ; auctorem laudare (Gell. ii. 10) will thus be intelligible. The testator, with respect to his heir, might be called auctor. (Ex Corp. Hermogen. Cod. tit. 11.)
Consistently with the meanings of auctor as already explained, the notion of consenting, approving, and giving validity to a measure aflfecting a person’s status clearly appears in the following passage. (Cic. Pro Dom. c. 29.)
Auctor is also used generally to express any person under whose authority any legal act is done. In this sense, it means a tutor who is appointed to aid or advise a woman on account of the infirmity of her sex (Liv. xxxiv. 2 ; Cic. Pro Caecin. c. 25 ; Gaius, i. 190, 195) : it is also applied to a tutor whose business it is to approve of certain acts on behalf of a ward (pupillus). (Paulus, Dig. 26. tit. 8. s. 3.)
The term auctores juris is equivalent to juris-periti (Dig. 1. tit. 2. s. 2. § 13 ; Gellius, ii. c. 10) : and the law writers or leaders of particular schools of law were called scholae auctores. It is unnecessary to trace the other significations of this word. [G.L.]
AUCTORAMENTUM. [gladiatores.]
AUCTORITAS. The technical meanings of this word correlate with those of auctor.
The auctoritas senatus was not a senatus-consultum ; it was a measure, incomplete in itself, which received its completion by some other authority.
Auctoritas, as applied to property, is equivalent to legal ownership, being a correlation of auctor. (Cic. Top. c. 4 ; Pro Caecin. c. 26.) It was a provision of the laws of the Twelve Tables that there could be no usucapion ,of a stolen thing (Gaius, ii. 45), which is thus expressed by Gellius in speaking of the Atinian law (xvii. c. 7) : Quod subreptum erit ejus rei aeterna auctoritas esto ; the ownership of the thing stolen was still in the original owner. (Cic. De Off. i. c. 12 ; Dirksen, Uebersicht) &c. der Zwolf-Tafel-Fragmente, p. 417.) (As to the expression Usus Auctoritas, see Usu-capio.)
Auctoritas sometimes signifies a warranty or collateral security ; and thus correlated to auctor secundus. Auctoritatis actio means the action of eviction. (Paulus, Sentent. Recept. lib. 2. tit. 17.) The instrumenta auctoritatis are the proofs or evidences of title.
The auctoritas of the praetor is sometimes used to signify the judicial sanction of the praetor, or his order, by which a person, a tutor for instance, might be compelled to do some legal act (Gaius, i. 190 ; Dig. 27. tit. 9. s. 5), or, in other words, " auctor fieri." The tutor, with respect to his wards both male and female (pupilli, pupillae), was said negotiwn gerere, and auctoritatem interponere : the former phrase is applicable where the tutor does the act himself; the latter, where he gives his ap-
