Roman Public Life/Chapter 1

by Abel Hendy Jones Greenidge

CHAPTER I

THE EARLIEST CONSTITUTION OF ROME

§ 1. The Growth of the City

In the developed political life of Italy there is a survival of a form of association known as the pagus^[1]—an ethnic or, at least, a tribal unit, which is itself composed of a number of hamlets (vici, οἶκοι). This district with its group of villages perhaps represents the most primitive organisation of the Italian peoples engaged in agriculture and pastoral pursuits.^[2] The pagus seems to resemble the tribe (tribus) of the fully formed city-state,^[3] while the vicus may often have represented, or professed to represent, a simple clan (gens). In the centre of the district lay a stronghold (arx, castellum), in which the people took shelter in time of danger.

There are, indeed, traditions of isolated units still smaller than the pagus. The clan is sometimes pictured as wandering alone with its crowd of dependants.^[4] But migration itself would have tended to destroy the self-existence of the family; the horde is wider than the clan, and the germ of the later civitas must have appeared first, perhaps, in the pagus, later in the populus which united many pagi. The union may have been slight at first, and may often have been based merely on the possession of some common shrine. Much of the civil and criminal law was administered within the family in the form of a domestic jurisdiction which survived in historical Rome; but a common market would involve disputes, and these would have to be settled by an appeal to an arbitrator (arbiter) even before the idea of a magistracy was evolved. Lastly come military necessities whether of defence or aggression. It is these that create a power which more than any other makes the state. The mild kingship of the high-priest of the common cult gives way to the organised rule of an imperium, and the king, praetor or dictator, is the result, the coherence of infant organisation being dependent on the strength of the executive power.

In the earliest city of Rome, to which we are carried back by tradition or archaeological research, this development has already been attained. The square city (Roma quadrata) was the enclosure of the Palatine, the "grazing-land" of the early Roman shepherd;^[5] the bounds of the oldest pomerium were known in later times to have been the limits of this site,^[6] and traces of the tufa ring-wall may yet be seen. From this centre the city spread in irregular concentric circles.^[7] Traces of ritual have preserved a memory of a city of the seven hills (Septimontium)—not those of the Servian Rome, but five smaller elevations, three (Palatium, Cermalus, Velia) on the older city of the Palatine, and two (Oppius, Cispius) on the newly-included Esquiline; while two valleys on the latter (Fagutal and Subura) also bear the name montes,^[8] and are, with the sites that really deserve the name, inhabited by the montani, who are distinguished from the pagani, the inhabitants of the lower-lying land beneath. It is not impossible that these seven "hills" were once the sites of independent or loosely connected villages (vici, or perhaps even pagi) which were gradually amalgamated under a central power, and, as the walls of the state could never have been coterminous with its territory, each successive enclosure must show the incorporation, voluntary or enforced, of a far greater number of smaller political units than those which the fortifications directly absorbed. Modern inquirers, following up a further hint supplied by the survival of a ritual, have held that there was another advance before the epoch of the Servian Rome was reached, and that what is known as "the Rome of the four regions" survives in the sites associated with the chapels of the Argei,^[9] and is preserved in the administrative subdivisions of the city to the close of the Republic.^[10] To form these regions the Caelian, the Quirinal, and the Viminal hills were added, while the Capitol with its two peaks now became, not indeed a part of the town, but, as the "head" of the state, its chief stronghold and the site of its greatest temples. The final step in the city's growth was the enclosure associated with the name of Servius Tullius, a fortification extending beyond the limits of the true pomerium, which added to the city the whole of the Esquiline to the north-east, the Aventine to the south-west, stretched to the west to the bank of the Tiber where the Pons Sublicius crosses the river, and formed the enceinte of Republican Rome.

It is possible that an amalgamation of slightly different ethnic elements may be associated with this extension of the city. That a difference of race lay at the basis of the division of the primitive people into their three original tribes was believed in the ancient, and has often been held in the modern world. The Tities (or Titienses) were supposed to be Sabine,^[11] the Ramnes (or Ramnenses) Roman; the Luceres were held by some to be also Latin, by others to be Etruscan. There is, however, a rival tradition of the artificial creation of these tribes by the first Roman king,^[12] and, when we remember the arbitrary application in the Greek world of tribe-names that had once been significant,^[13] we may hold it possible that the great συνοικισμός typified by the name of Romulus was not accompanied by any large alien intermixture with the primitive Latin population. The existence of Sabine gods like Sancus, or Sabine ritual as typified in Numa Pompilius, is no more evidence of Sabine intermixture than the early reception of Hellenic deities is of Greek;^[14] and though it is possible that a Sabine tribe once settled on the Quirinal, and it is almost certain that at the close of the monarchical period an Etruscan dynasty ruled in Rome, yet the language, religion, and political structure of the early state were of a genuinely Latin type. There was, indeed, contact with peoples more developed in material civilisation or more gifted in their spiritual life, and to this contact the debt of Rome was great. Rome adopts the Chalcidian alphabet; she receives early Greek divinities such as Hercules, Castor, and Pollux; she models her statue of Diana on the Aventine on that of Artemis at Massilia; she imitates the Greek tactical organisation in her early phalanx. But it is very doubtful whether the obligation extended to the reception of the political ideas of Hellas. Parallels between Roman and Hellenic organisation may be observed in certain institutions such as the equites and the census; but these are military rather than purely political, and in all the fundamental conceptions of public law—the rights of the citizens individually and collectively, the power of the magistrate and the divine character even of secular rule—Rome differed widely from the developed Greek communities with which she was brought into contact, and seems in her political evolution to have worked out her own salvation. The more developed civilisation of Etruria doubtless filled up certain gaps in her political and religious organisation both by contact and by rule. The strength of the religious guilds (collegia) of Rome may be due in part to an imitation of the Etruscan hierarchy; the refinements of the science of augury may also be Tuscan; and tradition, as we shall see, derives from the same source the insignia of the Roman king.

§ 2. The Elements of the Population—Patricians, Plebeians, Clients

The free population of Rome as a developed city-state was composed of the two elements of Patricians and Plebeians. The ultimate source of this distinction, which is undoubtedly anterior to the foundation of the city, can only be a matter of conjecture; but the origin of the Patriciate may probably be explained as the result partly of earlier settlement, partly of superior military prowess. The warriors within the pale receive the new settlers, but only on certain conditions; these conditions are perpetuated and become a permanent badge of inferiority. The happiest guess of the many made by Roman antiquarians as to the origin of the Patricians was that they were originally the "free-born" men (ingenui), the men who could point to fathers (patres) and in their turn become full heads of families^[15]—the men in short who, at a time when the family with its juristic head, and not the mere individual, was the true unit of life, were the only full citizens of Rome. Such men alone could be partners in the true ownership of property, or sue and be sued in their own right,^[16] and such an exclusive right to a full personality in private law they claimed in virtue of their public services or privileges—the duty of taking the field on horseback or in heavy armour, the right of uplifting their voices in the assembly when they acclaimed a king or ratified a law.

The whole free community, other than the patres or Patricians, is regarded as the "complement" of the latter, "the multitude" (plebs, plebeii) which, with the fully privileged class, makes up the state.^[17] It is possible that, in a very primitive stage of Roman history, these Plebeians may all have been in the half-servile condition of clientship; but, even when the earliest records of Rome are revealed to us, this has ceased to be the case. Not only has the son of the original client evolved a freedom of his own, but a man may become a plebeian member of Rome without subjecting himself to the degradation of clientela. No less than five ways are described or can be imagined in which the non-citizen could become a citizen, and at least one of these reveals the possibility of the perfectly free Plebeian. In the old life of the pagus and the gens, the weaker sought protection of the stronger by a willing vassalage, which ripened, when the state was formed, into the Plebeiate which had its origin in clientship. A similar position was ultimately gained by the descendant of the manumitted slave. The stranger (hostis) from a city which had no treaty relations with Rome, or no relations which guaranteed a mutual interchange of citizenship, must, if he wandered to this new home, also make application to a patron and become his client. It is less certain what was the fate of the inhabitants of a conquered city who were violently deported to Rome. The annalists, indeed, represent such men as being received into the citizen body, and as becoming members of the tribe and the curia;^[18] but it is probable that in the pre-*historic period they became clients, immediately of the king to whom they had made their subjection, ultimately perhaps of patrician houses to which he chose to attach them as dependants.^[19] In all these cases clientship may have been the original lot of the Plebeian; but this could hardly have been the fate of the immigrant who moved to Rome from a city which already possessed the jus commercii with that state, and by the exercise of the right of voluntary exile from his native land (jus exulandi) claimed the Roman civitas. The existence of such relations between Rome and cities of the Latin league is attested for a very early period, and they may even have been extended to cities outside the league.^[20] As the jus commercii implies the right of suing and being sued in one's own person before Roman courts, there seems no reason why such an immigrant should make application to a Roman patron;^[21] but, if he did not, he was in the chief aspects of private law a perfectly free man, and illustrated a status to which the quondam-client must from an early period have tended to approximate. Where the right of intermarriage (jus conubii), as well as the right of trade, was guaranteed in a treaty between Rome and some other town, it is questionable whether this gift ever implied the possibility of matrimonial union with members of the Patriciate. It is at least certain that, at the time of the Twelve Tables (451 B.C.), and therefore probably from a very early period, a disability common to all the Plebeians was that they might not intermarry with members of patrician clans. Yet, although there was this great gulf parting the two orders, it was possible for either class to be transferred to the status of the other. We shall see that tradition represents a vote of the Patricians in their assembly as a means sufficient to recruit their order by the addition of a new family; while, after the Plebs had evolved an assembly of its own, a transitio ad plebem might be effected by an act of that body.^[22] Adoption from a patrician into a plebeian family produced the same result.

That the clientship of which we have spoken was not peculiar to Rome, but was an old established Italian institution, is a truth reflected in the legend of the gens Claudia which moved from Regillum to Rome with a vast multitude of dependants.^[23] It is separated by but a thin line from slavery. While the latter was based on conquest in war, the former was probably the result of voluntarily-sought protection in the turmoil of a migratory life, or perhaps at times the consequence of the suzerainty of a powerful village being extended over its weaker neighbours. In the developed state the principal object of this relation is legal representation by the patronus, for the client possesses no legal personality of his own. For the condition of the client we can but appeal to that of the slave and the son of the family. Such property as he possessed may have been merely a peculium, the small accumulation of cattle and means of husbandry which his master allowed him to form; had the client wronged a citizen, we may assume that his body might be surrendered in reparation of the damage (noxae deditio); the origin of Roman occupation of land on sufferance (precario) may perhaps be traced to the permission by the patron to till a little plot of land which might be resumed at will;^[24] in default of direct heirs (sui heredes) such personal belongings as the client possessed may have fallen to the members of the protecting clan (gentiles), for it was to the clan rather than to the family that he was attached.

The description which we possess of the mutual obligations of patrons and clients,^[25] although it contains many primitive elements, obviously refers to a time when the client was allowed to possess property of his own and was often a man of considerable wealth, but when, in spite of this power, he does not seem to have appeared in person in the public courts. It was the duty of the Patricians to interpret the law to their clients, to accept their defence in suits, and to represent them when they were plaintiffs.^[26] The client, on the other hand, was bound to help to dower the daughter of the patron if the latter was poor; to pay the ransom if he or his son were captured by enemies; and, if his lord was worsted in a private action or incurred a public fine, to defray the expense from his own property. If any of these duties were violated by the client, he was held guilty of treason (perduellio), and as the secular arm suspended him from the unlucky tree, so the religious power devoted to the infernal gods the patron who had woven a net of fraud for his dependant.^[27] Even after the effective infliction of religious sanctions had disappeared, the duty to the client ranked only second to that which was owed by a guardian to his ward.^[28] The earliest clientship was strictly hereditary; but the bond must have become weaker with successive generations, after the evolution of plebeian rights, and at a time when clientes themselves possessed votes in the comitia curiata.^[29] Nay, the Plebeian at this period may himself be a patron, and his attainment of full citizenship in private law must have been held to qualify him for this duty of protection. Yet the client body still continues to be recruited by new members; for the antique form of applicatio still exists, and the manumitted slave owes duties to his patron. We know too that in the fourth and third centuries the patronal rights over the freedman extended to the second generation.^[30] A faint trace of hereditary clientship, based on a purely moral sanction, and accompanied perhaps by the performance of some of the duties of the old relationship, still exists in the second century. The family of Marius, we are told, had been clients of the plebeian Herennii, and some of the rights of the relationship were held to extend to him. But we are also told that at this period a principle was recognised that this bond was for ever broken by the client's attainment of curule office,^[31] that is, by the ennoblement of him and his family.

§ 3. Roman Family Organisation—The Gens, the Familia, the Bondsman and the Slave—The Disposition of Property—The Conception of "Caput"

The clan (gens) was an aggregate of individuals supposed to be sprung from a common source, a social union, with common rights in private law, which had as its theoretical basis the notion of descent from a single ancestor. According to the juristic theory of the clan, all its individual members would, if their descent could be traced through every degree, have sprung from two individuals who were within the power of this ultimate ancestor, a sign of this original potestas being the common gentile name.^[32]

The members of a clan are to one another either agnati or gentiles. In many cases the difference of nomenclature was based merely on the degree of certainty in the relationship. They were agnati when the common descent could be traced through all its stages; they were gentiles when the common descent was only an imagined fact, based on the possession of a common name. As a rule agnati are also gentiles; but there might be groups of agnates who could never be gentiles—groups, that is, of proved relationship through the male line, who could not, for reasons which we shall soon specify, form a gens.

If we believe that the Roman Patriciate represented those who alone possessed the legal status of heads of families (patres)^[33]—since, the familia being the unit of the clan, the rights of a clan-member (gentilis) imply the position of a paterfamilias—it follows that the Roman gentes were, as they are represented by tradition, originally exclusively patrician, and that the terms gentilis, gentilitas implied a perfect equality of status among the only true members of the state.

The words became restricted to a certain section of the community in consequence of the evolution of plebeian rights, i.e. in consequence of the Plebeians becoming in strict law patres familias. The logical consequence of this should have been, where groups of such families bore a common name and were believed to have a common descent, that these groups should form gentes. But history is illogical, and this conclusion was not reached.

No such group could possibly form a gens of its own, if it could be regarded as having been originally in dependence on a patrician clan. Although in course of time legally independent and freed from all trammels of clientship, it was yet disqualified from clan-brotherhood by this original connexion; it remained an offshoot (stirps), a mere dependent branch, and could never be a self-existent gens. This disqualification is exhibited in the definition of gentilitas given by the jurist Scaevola (consul 133 B.C.), which gives as two of its conditions free birth in the second degree, and the absence of servile blood in one's ultimate ancestry.^[34] This definition excludes from membership of a gens all those Plebeians who had sprung originally from emancipated slaves. No one who could be proved to have the taint of servile blood could ever be a gentilis. But there is every reason to believe that servitus was interpreted in a further sense, that clientship was regarded as a quasi-servile position, and debarred a group of families, whose ancestor could be proved to be a client, for ever from being a clan.

As a rule it would have been difficult, if not impossible, to furnish this proof; but there was one legal sign of it—the bearing by a plebeian stirps of the same name as a patrician clan. The presumption of the law, in the case of the coexistence of a plebeian group of families with a patrician group of the same name, was apparently that the former had once been clients of the latter, and could never, therefore, form a gens of their own.^[35]

But, if there were plebeian families that had no origin in clientship, there was nothing to prevent these from being gentes. It is true that Patricians sometimes made the claim that all the plebeian families had originated from clientship.^[36] But this is, as we saw,^[37] probably not true of the origin of many of the plebeian families, and there is abundant evidence that the theory was not recognised by law. We know, for instance, that gentile inheritances were shared by the plebeian Minucii, and gentile sepulchres by the plebeian Popilii.^[38]

The foregoing description shows that the gens rests on a natural basis, that it professedly represents the widest limits of blood-relationship; hence it would seem to follow that it could not be artificially created or its members redistributed; that the numbers of the clans could not be regulated numerically, except conceivably by the addition to the existing number of a precise number of added clans—a most improbable procedure; and that, as being a natural and not an artificial creation, it was a union which was not likely to be of primary importance politically, and the rights of whose members were in all probability those of private rather than of public law. These expectations are verified, but the attempts to point out certain purely political characteristics of these associations deserve examination.^[39]

(i.) It has been held that the clans were the unit of voting in the original popular assembly at Rome, the comitia curiata.^[40] But the passage on which this conclusion is based only implies that, originally, membership of this comitia depended on possession of a gens; eventually, at a time when the curia included Plebeians, on possession of a familia, and therefore presumably of a stirps or genus. (ii.) A distinction is presented by ancient authorities between the gentes majores and minores—a distinction within the patrician gentes that survived into the Republic. Of the gentes minores we know but one name, that of the patrician Papirii;^[41] a list of some of the gentes majores has been reconstructed with some plausibility from those clans which furnished principes senatus; they are the Aemilii, Claudii, Cornelii, Fabii, Manlii, and Valerii.^[42] Tradition is inclined to represent this distinction as having originated politically,^[43] but it is a tradition working on the impossible hypothesis that the Patriciate derived its origin from membership of the Senate. This political distinction doubtless existed within the Senate; but it was probably derived merely from the respective antiquity, and therefore dignity, of the gentes from which its members were drawn. And this association with the Senate leads us naturally to the third question connected with the political character of the gentes, i.e. their relation to the primitive council of the state. The theory of an ultimate connexion between the two originates with the correspondence of the number of the gentes and of the Senate. Both are given by tradition as 300. The Roman community is said to have originated with the amalgamation of three domains (tribus) into one.^[44] The rise of the Senate from 100, its original number as constituted by Romulus, to 300 as its final number, is accounted for by the gradual amalgamation of these three tribes with their 100 gentes each.^[45] A parallel to the original centumviral constitution of the Senate is found in the centumviri of the Italian towns, and is supposed to be derived from the same invariable division of a tribus into 100 gentes.^[46]

The chief objections to this view are the symmetrical number into which it divides the gentes, and the fact that the Senate is, according to the best tradition, a body of nominees selected by the chief magistrate. But yet there is an element of truth in the theory. The Senate did rise from 100 to 300 in consequence of the incorporation of fresh elements into the community, and therefore in consequence of an increase of the gentes. The kings and early consuls would doubtless, in the exercise of their powers of selection, wish to see each of the patrician clans represented in their council. Hence the addition of new clans would add new members to that body, and hence the inferior place occupied in the Senate by the gentes minores, the younger branch of the Patriciate.

Although the clan itself was inexpansive, the number of the clans, even in the old patrician community, was not. It was possible for new gentes to be added to the community, and even for old gentes to quit it. Tradition speaks of the reception of six clans that had once belonged to the parent state of Alba—the Cloelii, Curiatii, Geganii, Julii, Quinctilii (or Quinctii), and Servilii;^[47] and Sabine races as well, such as the Valerii,^[48] are also said to have been admitted. The reception of new gentes was effected by the Patricians and, as we should expect, by the assembly which represents the whole patrician body, the comitia curiata, under the presidency of the king. They were coopted by their peers,^[49] and it is improbable that the patrician order could have been recruited by the act of the king alone.^[50] He might conceivably have chosen Plebeians as members of his advising body, the Senate, as the first consuls are said to have done,^[51] although such a selection is extremely improbable; but even this act would not have raised such Plebeians to the Patriciate. The admission of new gentes implies that foreigners, or even a portion of the plebeian body, might be coopted into the Patriciate; in the former case it might be the reception, in the latter the creation, of a gens. This possibility of recruiting the patrician order—whether by the creation or reception of gentes—ceased during the Republic, because the assembly of the Curies came eventually to admit Plebeians, and there was no political assembly composed exclusively of members who fulfilled all the conditions of being gentiles. The only instance of the expulsion of a gens preserved by legend is that of the Tarquinii; and the decree that this whole clan had forfeited its right to be a member of the Roman state is said to have been passed by the Populus.^[52]

The account of gentes being received into the Roman community is accompanied by a tradition of their keeping together in their new settlement. Thus the Claudii, on the reception of the civitas, are said to have received a special tract of territory across the Anio for themselves and their clients.^[53] Such a tradition at once suggests a close connexion between the gens and the soil, which there is no reason to doubt. But the further questions have been raised, whether the gens as a whole was the owner of the land on which it settled, and whether this was the form of common possession recognised in early Rome. It must be admitted that tradition knows nothing of such a tenure. Dionysius represents the territory given to the Claudii as destined to be divided up amongst the various familiae of the gens;^[54] while in other accounts of land-assignments we hear of such being made to the curia (φράτρα)^[55] or to individuals (viritim),^[56] but never to the clan. Yet a plausible theory of common possession has been based on the survivals both of legal terms and of clan rights.^[57] Amongst the terms describing early territorial possession we have, apart from ager publicus, the heredium and the ager privatus. The private possession of the heredium is attributed to Romulus,^[58] and is thus regarded as a modification of some form of common tenure; and the heredium consisted of only two jugera,^[59] an amount obviously insufficient for the maintenance of a family. Hence there must have been ager privatus as well, owned by some larger unit, and this unit would naturally have been the gens. It has also been thought that the terms descriptive of individual ownership—manus, mancipium—referred originally to movables,^[60] as though immovables belonged to a common stock. Lastly, we find connected with the clan the survival of a corporate right to property and collective duties connected with it. According to the rules of regular intestate succession, in default of the suus heres, property lapses to the proximus agnatus and then to the gentiles;^[61] and it was in connexion with this right, which lasted down to the end of the Republic,^[62] that the definition of a gentilis was of such legal importance.^[63] This inheritance is by the gentiles as a whole, for there is no proximus gentilis, and in historic times it must have been an inheritance by individuals, the property being divided amongst those who could prove their claim; but it may be the relic of an earlier inheritance by the gens as a corporation.

But the gentiles have rights in a corporate capacity as well. By the Twelve Tables they have the guardianship of the insane^[64] and a reversionary right of guardianship over women and children.^[65] Guardianship (tutela) must have given them all the rights of a person in Roman law, to exercise which they must have had a personal representative. But this devolution itself shows the gens acting as a corporation.

Of corporate action in their own interests, or with a view to the interests of the state, there is little evidence, although there are traces of common activity for the purpose of keeping up the dignity of the family. The patrician Claudii repudiate by common agreement the praenomen "Lucius," because two of its bearers had been respectively convicted of highway robbery and murder,^[66] and the patrician Manlii renounce the praenomen "Marcus" in consequence of a crime committed by a clansman of that name;^[67] but such an agreement could hardly in historical times have had other support than the will of individual members to observe it. Perhaps the closest of the later ties of the gens were its common worship and sacrifices. They never, as in Greece, rose to the rank of great public worships, but excessive care was taken by the state to maintain them; chiefly from the view that, if the worship of a race died out, the community would lose the favour of the divinity to which it had belonged. Hence the close connexion of gentile sacra with property and inheritance.^[68] Property, in the last resort, passed to the gentiles; and the sacra, that they might be maintained, were a necessary burden associated with it. For the sacra to pass out of the family was of little importance; had they passed out of the gens, there was no security for their continuance. In cases of transition from a family of one clan to a family of another, it was the duty of the pontifices to inquire how the continuity of the sacred rites might be maintained,^[69] and hence one of the forms observed in the case of a change of gens by adrogation was the sacrorum detestatio, a public declaration that the individual who sought this change had ceased to claim any participation in the sacra of his race. The care for the continuity of the sacra of the clan was long one of the professed, and perhaps real, bars to marriage between Patricians and Plebeians.^[70]

This question of the sacra is an index to the fact that membership of a gens might be either natural or artificial. The natural mode of entrance was by birth; and in the case of the patrician clans, before the right of intermarriage was extended to the Plebs, marriage with a patrician mother and by the ceremony of the confarreatio was necessary to constitute gentilitas for the child. Later any form of marriage sufficed, as it had doubtless always done in the case of the plebeian clans. The child, in accordance with the patriarchal principle, belonged to the clan of his father.

The form of religious marriage peculiar to the Patricians necessitated a change of gens on the part of the wife; for a woman married by the ceremony of confarreatio became a partner in the property and sacra of her husband,^[71] and there is even some trace of her having originally changed her gentile name as well.^[72] The ordinary plebeian form of marriage by mere agreement (consensus), which ultimately became almost universal, did not lead to a woman's falling into the potestas of her husband, unless this power were assumed, originally by prescriptive right (usus), later by the ceremony of fictitious purchase (coemptio). In such a case she became a member of her husband's family, but it is questionable whether the logical conclusion was pressed and she also became a member of his gens. The anomaly, if it existed, may perhaps be explained by the fact that the Plebeians, who evolved these forms of marriage, had, as a rule, no gentes.

The clan might also be changed by adoption. Adrogatio—perhaps the only form known to the old patrician community—was the method by which the head of a family voluntarily submitted himself to the potestas of another. Adoptio, on the other hand, was the change from one potestas to another. If there was a form of true adoption by patrician law,^[73] it has been lost to us, and the earliest that we hear of is the plebeian form by threefold sale recognised in the Twelve Tables. At a later period it might also be effected by a written testament.

The family (familia)^[74] in its original and proper meaning is the aggregate of members of a household under a common head; this head was the paterfamilias—the only member of the household who possesses legal rights.

The two ideas underlying the Roman conception of the family are those of unity and power, and both are singularly perfect. The former is attained, and the latter exercised, by the head. It is through him alone that the family is a person; and the authority he wields over the members subordinated to his will is called potestas.^[75] The power over the children is described as patria potestas, as over the slave it is dominica. The two do not differ legally; there is only a difference of ethical signification. Under this potestas fall, firstly, the children, both sons and daughters; secondly, the descendants of these children; thirdly, the wife united to her lord by a form of marriage which makes her a member of the family; fourthly, the wives of the sons and grandsons who have entered the familia by a similar binding form of marriage. There is a complete absence of independent rights amongst these members of the household. As to the wife, any property that she might be possessed of, or which she acquired, passed absolutely into the power of her husband. He was responsible for her conduct and possessed the right of moderate chastisement. Severer punishment for wrongs to the household required the support of the family council. No legal action might be brought by the woman against her lord, for they were not two personalities, but one. He might divorce her on good grounds,^[76] but if she were married under a form which subjected her to his power, she had no legal means of freeing herself from his tyrannous rule. Her position is that of a daughter and she inherits equally with her children. The decision as to whether the child of the marriage was to be reared (liberi susceptio) belonged to the father, but was, in the interest of the state, subjected at an early period to certain modifications. The "laws of Romulus"—that is, the early pontifical law—enjoined the rearing of every male child and of the first-born of the females; the exposure of offspring was to receive the assent of five neighbours,^[77] and disobedience of these canons was to be visited with severe penalties on the parent who neglected the welfare of the state. The children and their descendants are never released from the absolute rule of the father as long as he lives. They cannot own property; for all that they acquire belongs to the common stock and is at the disposal of the head of the family. At best the father might permit the son, as he might permit the slave, to employ his own earnings for his own use. This is the peculium. Yet the grant is a mere concession, and one which may be withdrawn at any moment. If the son dies it lapses to the father; if the father dies it falls to the heir.

The child, as having no property, cannot give satisfaction for wrongs which he has committed. He is regarded as irresponsible, and responsibility for his conduct devolved on the father, who might either give compensation to the injured man, or surrender the delinquent for him to visit with his vengeance, or to use as a means of working out the damage (noxae deditio);^[78] in the latter case the child becomes for ever the property of another. The father might sell him; if beyond the limits of the country, the son becomes a slave; if within the limits, he is one in private though not in public law (in causa mancipii), and exchanges servitude to the father for that to the purchaser. In an age which recognised no free contract of labour, the sale of the son was a means of putting him out to business.^[79] The injunction of the Twelve Tables (perhaps the recognition of a custom far earlier than this law) that the thrice-repeated sale of a son involved loss of the patria potestas,^[80] was an attempt to put an end to an inhuman traffic. The child as a thing might be stolen or detained, and as such be the object of recovery. In this case the father "vindicates" him as he would a chattel or a beast that had strayed from the homestead.^[81]

The father might scourge or imprison his child,^[82] even put him to death. The formula employed in adrogation (the procedure by which a man puts himself into the paternal power of another) shows that the jus vitae necisque was the most distinctive aspect of the patria potestas.^[83] It was a power never questioned throughout the whole of Republican history, and which received no legal limitations until the time of the Middle Empire.^[84] Sometimes it was employed as a means of saving the honour of the family, and there are instances of the son guilty of theft, the daughter of unchastity, being thus put to death;^[85] sometimes it was enforced in the interest of the state to punish a public crime.^[86]

Although law is in a sense an outline of life, it would be very misleading to fill up the content of Roman private life by analogy with this harsh outline. Like most of the theory of Roman law it had little correspondence with the facts; and this non-correspondence of fact and theory is the source of the strength and the beauty of Roman family life. If legal obligations do not exist between husband and wife, father and child, their place, in a civilised community, must be taken by moral obligations; and the very absence of legal sanctions will make these moral bonds peculiarly strong. It was so with the Roman family. It was an isolated, self-existent unit. The members clung closely to one another and to their head. The power of the father—the source of the unity of the household—fostered the devotion to the hearth, the love of home, which is such a distinctive attribute of the Roman. It created the belief that the members of the household, owing allegiance to a common chief, should act loyally by one another in all the relations of life, and loyalty to a living head begat loyalty to his predecessors; traditions of this union as persisting under the rule of a long line of deceased ancestors, account for the hereditary policy of Roman houses—the championship of principles advocated for centuries by such clans as the Valerii, the Porcii, and the Claudii.

The moral influence on the pater was also great. He defends, not his own selfish rights, but the rights of a corporation dependent on him; "self-help" is the essence of the principles of early Roman law. In private matters the authority of the state is weak, that of the individual strong. The rule of the Roman father was the benevolent despotism that embraces many within the sphere of its despotic interests, that forces others to observe its rights because its interests are not personal, that produces a deep sense of moral and religious responsibility towards the weak, a stern unyielding attitude towards the man who would infringe upon their rights. The only "individual" known to Roman law is the paterfamilias, but his was a glorified individuality, which, through its rule over the family, gathered strength to rule the world.

If it be thought that the loss of character must have been proportionally great in the case of the dependent members of the household, it must be remembered that the patria potestas is, for the individual, a transitory condition of things. Each subject member is preparing himself to be a pater in his own right. With the death of the existing head, all the hitherto dependent members are freed from the potestas; each forms a familia of his own; even his grandchildren by predeceased sons become heads of houses; the daughters are also freed from power, although, out of deference to the weakness of the sex, they are still under guardianship (tutela).^[87] The family splits up into a number of familiae, and none of these is of more importance than the other. For the evils of primogeniture were unknown to Roman law. No hereditary caste based on the accident of birth was ever formed; and when we find an aristocracy of birth arising, it is the fittest son who can succeed his father in political office; for the bulk of the property, on which political influence was based, has not passed into the hands of some incapable elder brother.

But, apart from the moral checks on the authority of the father, which the absence of legal restraints made peculiarly strong, the civil law, public opinion, and the positive morality which found expression through certain religious or semi-religious organs, did impose certain restraints on a possible abuse of power. If the father is a lunatic (furiosus) he is, with his property, put under the care of his next of kin;^[88] if he is wasteful (prodigus) and is squandering the property, of which (though legally it is his own) he is regarded only as the trustee, he is debarred from all commercial relations (commercium)^[89] and prohibited from disposing of goods of which he is an unworthy administrator.

A very real customary control, one not actually enjoined by the civil law, but enforced by the powerful sovereign, which the Romans called the custom of their ancestors (mos majorum), was the obligation incumbent on the father of consulting a council of relatives (consilium domesticum) before taking any extreme step with respect to the members of his family. This was never limited to the agnatic circle; it admitted blood relations and relatives by marriage, while personal friends outside the family might be summoned as well.^[90] Any severe punishment of a child and the divorce of a wife had to be submitted to the judgment of this assembly. How strong the sentiment in favour of this procedure was may be judged from the fact that in later times we find the censor (in Republican times the personal exponent of the moral sense of the community) degrading a senator who had divorced his wife without taking advice of the family council.^[91] The sentiment was but one expression of the principle which runs through the whole of Roman life, that no man should act in an important matter without taking counsel of those best qualified to give it.

Certain extreme abuses of the paternal power were prohibited by religious law (fas), which in such cases enjoins capital penalties. By a supposed law of Romulus, a man who sells his wife is to be sacrificed to the infernal gods; if he divorces her without due cause, half of his property is to be confiscated to his wife and half to the goddess Ceres.^[92] With the secularisation of Roman law such penalties disappeared, and it is questionable whether they often required enforcement,^[93] for such religious bans are mainly the expression of a strong moral sentiment.

Lastly, there was the principle that the paternal power cannot interfere with the jus publicum. It is a principle that applies both to persons and to property. In its first application it means that the son can exercise his vote independently of the paternal control; that he can fill a magistracy which subjects his father to his command; that, at least in later times, even the function of guardianship (tutela) can be exercised without the father's will; for this, too, is a public duty.^[94] With respect to property, public law, though not infringing on the theory that all goods belong to the paterfamilias, yet does not regard them as the object of purely individual ownership. The father is rather a trustee than an owner, and even under the Servian constitution, that is, according to tradition, before the close of the monarchy, the value of a freehold is taken to qualify the members of the familia, not merely its head, for service to the state, and ultimately for the exercise of political rights.^[95]

An instance of the triumph of the state in its conflict with private property is furnished by the position of the bondsman (nexus). It may be appropriately discussed here; for the nexus is in private law practically in the position of the son under power. He was a man who had contracted a debt on the security of his person,^[96] and who, on non-fulfilment of that obligation, had had his body and his services attached by the creditor. In private law he is a slave; in public law he is a free-born Roman citizen, and may be summoned for service in the legions when the state needs his help.

It would be an anachronism to enter on a full treatment of Roman slavery in connexion with the beginnings of Roman history. Almost all that we know of the legal relations of slaves to their masters, of their capacities and their disabilities, their hopes of freedom, their position in the home, and their influence on the public life of the city, refers to a far later period. Yet the class doubtless existed from the earliest times, and as Roman legal conceptions became modified but never completely altered by the course of time, it is possible to give a faint outline of the conditions of slavery in the Regal and early Republican periods.

Slavery may at all periods of the history of Rome be defined as an absence of personality. The slave was a thing (res) and belonged to that more valuable class of chattels which the Romans called res mancipi, and which included land and beasts of burden. He was, therefore, a part of the homestead (familia),^[97] the transfer of any portion of which required the most solemn forms of Roman law. As a thing, the master is said to exercise dominium over him; he might deal with him as he pleased, and had over him the power of life and death. The slave, on the other hand, has not only no rights against his master, but cannot conclude legal relations with others. He has no legal relatives, no legal wife; he may be permitted to retain the fruits of his own labour, but even his master's will cannot make it his property. How far this "thing" possessed a potential personality we do not know—how far, that is, the personality inherent in him could be realised by subsequent emancipation. Liberation could at best have raised the slave to the condition of the client at this early period—a slight ascent in the scale of actual rights, but one that might have been valued for the greater personal freedom and the surer guarantee of religious protection which it gave. But the fact that the slave is a part of the homestead, and at the same time an intelligent being, makes him in the truest sense a member of the family. The owner is said to have power (potestas) over him, a word which is used only of rule over reasonable beings; and this dominica potestas does not differ essentially from the patria potestas which is exercised over the son. The treatment of the two was doubtless different, for the one would some day be a lord, the other would remain a slave, but their legal relation to the dominus was the same.

But the legal status of the slave is no true index of his condition. This will depend on two factors, his origin and his social relations to his master; and on both these grounds the early slavery of Rome must have compared favourably with that of later times. The slave trade was probably unknown, and the condition must have been mainly the result of capture in war from neighbouring states. Slavery is not altogether degrading when it is wholly the consequence of the laws of war. The slave was an Italian, perhaps of as noble birth as his master, and this, though it may have aggravated the bitterness of the lot, must have rendered possible an intimate social intercourse which would not have been possible with the barbarian, and must have forced on the master's mind the conviction that a sudden turn in fortune's wheel might place him in the same position in the city of his serf. Again, the servitude was domestic; whether employed in the home, or on the common lands of the clan, or on the petty plot of ground that the master called his own, the slave was never severed from his master or his master's kindred. We hear in early times of his sitting at his master's table,^[98] and of his being the tutor and playmate of his lord's children.^[99] He may in some cases have been better off than the client or the unattached Plebeian engaged in some petty trade. Certainly the opportunities for the primitive culture afforded by the Roman household were more open to him than to the other orders excluded from the Patriciate. In the case of domestic slavery extending over a small area, public opinion is generally a powerful restraint on the master's caprice. We do not know whether this opinion found a religious expression in such principles as those which protected the client's rights; but the fact that the censor of the later Republic, who perpetuates the obligations of religious law, punishes acts of cruelty committed by the dominus,^[100] may show that the slave was not wholly without the pale of divine protection.

If, as we have seen, the Roman's chief mode of livelihood, the land, was not his own property but that of the clan, no individual disposition of it during lifetime or after death was possible, although there may have been some right of bequest over the movables classed as res nec mancipi. When the theory of common possession was modified by the recognition of a heritable allotment, bequest may have become possible; but doubtless intestate inheritance still continued to be the rule. A law of inheritance is first known to us from the Twelve Tables, which allowed the utmost freedom of bequest and legacy; but there was a survival both of theories and practices which show that testamentary disposition was originally regarded as the exception and not the rule.

First, we may notice that even in later times the immediate heirs of a man were regarded as having a claim to property, a kind of potential ownership, during the lifetime of the pater, and that inheritance is regarded merely as a continuation of ownership (dominium);^[101] and in accordance with this view we find the practice of holding an inheritance in joint ownership, the co-heirs bearing the name of consortes.^[102]

Secondly, the earliest testaments of which we have knowledge were public acts performed before the comitia of the people. The most ancient was the patrician form of testament—the testamentum comitiis calatis—effected at the comitia curiata which were summoned (calata) twice a year for this purpose.^[103] The original purpose of this public testament is obscure. It is possible that originally it took place when there was no direct heir (suus heres) to receive the inheritance, and that it was accompanied by some form of adoption of a successor. The person adopted might have been the son belonging to another family; although of such a procedure there is no further trace in Roman law.^[104]

The publicity of the act and the infrequency of its occurrence show how exceptional a will must have been, and that the normal mode of succession was that by intestacy. But we have no warrant for saying that this testament at the comitia calata was an act of private legislation and was permitted by the assembled burgesses. The gathering was perhaps merely a form, and the persons assembled may have acted only as witnesses;^[105] but the very publicity would have made it almost impossible to pass over a son of the family, unless there were expressed grounds for his disinheritance.

The second kind of public will was the military testament (in procinctu),^[106] but our authorities leave us in doubt as to whether this testament could be made in any gathering of the soldiers prepared to meet the enemy and in any place, or whether it was a formal act possible only in the great gathering of the exercitus in the Campus Martius—that gathering which was finally organised as a legislative assembly, existed by the side of the assembly of the Curies, and came to be known as the comitia centuriata.

In the first case it may have been an old patrician form of testament, an informal will permitted in an emergency, perhaps to enable a childless soldier to transmit his inheritance. We do not know whether it had absolute validity, or only a validity dependent on circumstances, such as the absence of direct heirs, or the satisfaction of religious conditions approved by subsequent pontifical scrutiny; on this hypothesis the comrades of the testator could hardly have acted other than as witnesses to the will.

On the second hypothesis it would have a closer analogy to the testament made in the comitia calata, and may have been introduced only when Plebeians were admitted to political rights in this assembly. It is true that this is not a necessary conclusion, for the patres gathered armed for war in the Campus long before the enrolment of the Plebs for military duties or their admission to political rights; but we may at least say that, when this enrolment and admission were effected, this form of testament could be used by the Plebeians. If we accept the traditional date for the Servian constitution, it was common to the two orders before the close of the monarchy.

But there was a third type of will, one purely plebeian, which from the comparative simplicity of its form and the readiness with which it could be employed (since it did not depend either on chance or formal gatherings of the people) gradually came, in its subsequent developments, to replace all others, and became the prevailing Roman form of testament-making. This was the testament per aes et libram, one use of the mancipatio or solemn transference of property "by the copper and the scales." In the form in which it is known to us, it is a late development, for the sale of the property has entirely ceased to be a real, and has become a fictitious sale; the mancipation in fact has become a mere formality, and its employment is said to have been dependent on the condition that the testator "subita morte urguebatur"^[107]—a condition which implies that the comitial testament could in ordinary cases be resorted to. But as the Plebs had originally no access to this form of will, the testament per aes et libram must have been in use among them long before its recognition as a form valid for the whole community. It was then regarded as a mere formal application of the mancipation to a special emergency, and as supplementary to the comitial testament; until its superior utility came to be recognised, the sentiment in favour of a free disposition of property grew to be strong, and the Twelve Tables, which effected the triumph of plebeian over patrician forms of procedure, recognised it as the normal mode of testate disposition.

By this act the testator, in the presence of five witnesses and the libripens, transferred the whole of his patrimony (familia) into the custody and guardianship of a person called "the purchaser of the family" (familiae emptor). In order to make a legal disposition of his property the vendor makes a formal announcement of the purport of the sale, and the buyer, as he pays the single copper coin for the patrimony, repeats the same form of words, "Let my custody and guardianship of your patrimony be purchased by this coin, to the effect that you may make a legal testament in accordance with public law."^[108] The words, which may not represent the most ancient formula, show that the familiae emptor is a mere trustee. Although the transference does not appear to have been conditioned by any express stipulation on the part of the vendor,^[109] it was understood that it should only take effect on the death of the testator. On this the familiae emptor becomes guardian of the patrimony. He is not an heir but an executor, who distributes the property in accordance with the instructions of the testator from whom he has purchased.

The second stage is reached by the added importance given to the form of instruction (nuncupatio) uttered by the vendor. The Twelve Tables gave absolute validity to such instructions,^[110] and the mere expression of the will of the testator came to be considered the essential part of the testament. In this announcement a true heir (heres) could be mentioned, and the familiae emptor sinks into the background. It is true that his presence is still necessary to the ceremony; he still professes to take the patrimony into his guardianship; but, like the man who holds the scales and the five witnesses, he is merely a formal assistant. The testament has ceased to be a contract; it is a one-sided expression of will and an arbitrary disposition of property. It may be either verbal or written; the last stage in the history of the civil testament is reached when the testator is allowed to exhibit a document to the witnesses of the mancipation with these words, "These waxen tablets contain my will and bequest; I ask you, Quirites, for your testimony."^[111]

Thus at a very early stage of Roman history, perhaps as early as the middle of the fifth century B.C., a man could exercise the most absolute power over the disposal of his goods. The only limitation was that the direct heirs (sui heredes) must be formally disinherited if they were to lose their rights. A mere passing over of a filius familias without formal disinheritance (exheredatio) rendered the will invalid; and in this case the sui succeeded to the vacant estate.

The social and political effects of such a dangerous liberty as the right of arbitrary testamentary disposition depend upon its use, and its use depends on the character of the people. The Roman character was, at all periods of history, devoted to the hereditary theory. It is one that was so strongly believed in that it asserted itself in spheres where it was never contemplated—during the later Republic in succession to office, in the early Empire in the succession to the Principate—and as applied to property it was an essential condition of the permanence of the Roman family. For the maintenance of a house a rigid system of intestate inheritance is bad; it may not produce great wealth, but it often produces great poverty. The only satisfactory system is a minute examination of each particular case by the state or by individuals. Such a control by the state was utterly alien to the laisser faire principles of the Roman, and history shows that the Decemvirs were right when they entrusted this discretionary power wholly to the pater. His functions as trustee were but extended to a period beyond his lifetime, and freedom of bequest was used as a means of equitable adjustment of property to the circumstances of the members of the family. The son who had made a rich marriage need not receive so much; the one destined to carry on the family traditions of office might receive more than the others. To him the heredium might be given, while the younger sons were drafted into colonies. We do not know the principles; but that the principles tended to the preservation of the family is proved by the long traditions of the noble Roman houses.

A legal view of the Roman family would be incomplete without consideration of the rights or infringement of rights dependent on it.

The full legal status of a Roman citizen was designated by the word caput. It denoted all the rights that he possessed, but primarily it is a conception of public law, for the possession of private was originally regarded as an annexe to the possession of public rights. Thus caput is retained even though the exercise of private rights is hindered for a time, as it is in the case of a son under power; the filius familias possesses a caput, although it is modified by his subjection to his father. This theory of the dependence of private on public rights, common to Greek and Roman law, probably accounts for the perpetual tutelage of women. The materfamilias holds an honourable position in the household; she is its queen, as her husband is its king, but yet she is subjected by marriage to the legal position of her own daughter, and, on her husband's death, is in the custody of her sons; for a primitive society cannot be brought to believe that a being who cannot fight, and may not fill offices of state or exercise a vote, is capable of looking after its own interests. Appearance before a court of law at Rome, whether for the purpose of defending one's own or another's rights, was regarded as a public act; and Roman sentiment so strongly disapproved a woman's taking part in public life that, when one was found bold enough to plead her cause in the Forum, the Senate in alarm made an official inquiry of the gods what the portent signified.^[112] It is possible that in the earliest stage of Roman law women were not regarded as having any rights to defend; later they are regarded as having rights, and therefore a caput, but as incapable of defending them. When, in the latest stage, the disabilities of sex disappear partly through enactment,^[113] but chiefly through a series of legal fictions, the capacity of women to defend their own interests first emerges.^[114]

The limitation by which a series of civil rights is destroyed is spoken of as a "lessening of caput" (capitis deminutio). It is in every case an infringement of rights already possessed by the individual. Now the loss of public rights could only follow on a loss of citizenship; but this is not the diminution but the annihilation of caput, and could not therefore in the earliest stage of Roman law (when there was no status recognised but that of citizenship) be called a capitis deminutio. The term must have been wholly confined to a loss of private rights, i.e. to the loss of the rights conveyed by the control of a familia.^[115] Thus the adrogatus suffers a lessening of caput by passing into the power of another. But a change from a higher to a lower status (even when the higher did not imply active rights) may at an early period have been regarded as an infringement of caput. We know, for instance, that the datio in mancipium of a son of a family was thought (at what period is uncertain) to involve it, because the child passes from a better to a worse station, although in his former condition he had no active rights of his own. It is stranger still that, certainly at an early period, the fact of a woman's passing into her husband's power (conventio in manum) was held to have this consequence. It is one that is scarcely intelligible in the case of a filia familias who passes from one potestas to another; but in the case of a woman only under the burden, lighter and ever tending to be more relaxed, of the tutela of her relatives, it is a natural though not strictly legal conception.^[116] Some other applications of the system are still more artificial, and are perhaps creations of late Roman jurists who came to consider that the essence of a loss of caput was a change of status (status commutatio).^[117] Thus adoption, which is the change from one potestas to another, and even manumission, which is the freedom from power, were supposed to involve it. These applications contain some historical truth only in so far as both these changes involve a temporary mancipation.

The original capitis deminutio is thus a purely private law conception and implies the distinction between persons sui juris and alieni juris. To the first category belong those who are free from the power of another, to the latter those who are under the potestas, manus, and mancipium; amongst citizens, therefore, the son, the wife, and any one mancipated to another. The person alieni juris is not altogether devoid of private rights, but they are singularly incomplete in their effects. Thus the son under power has the right of marriage (conubium), but the children of the marriage are not in his power but in his father's; he has (if not in the earliest period, yet throughout the greater part of Roman history) the right of taking part in the legal business of trade (commercium), yet all that he acquires by this business belongs to his father. In his case, however, the condition is transitory, while in the case of the slave and the mancipatus (apart from the possibility of emancipation) it is permanent.

Conversely, the fact of being sui juris does not always imply freedom of action; this might be limited through consideration of age or sex. Minors and women may be free from potestas, but the former were subject to a temporary, the latter originally to a perpetual tutela.

§ 4. The Citizens and the Political Subdivisions of the State

The whole collection of Roman citizens forms the populus Romanus quiritium,^[118] or populus Romanus quirites.^[119] Of the terms thus placed in apposition, populus Romanus is the more general descriptive name, and quirites the official title by which the citizens are addressed in the assembly. Yet both words appear to have the same signification; populus is the armed host,^[120] and the quirites are the "bearers of the lance."^[121] If the latter etymology is correct, the word quirites came, by a course of development which finds many parallels in Roman history, to mean exactly the opposite of its original signification. At the end of the Republic it signifies the citizens in their purely civil capacity, wearing the toga, the garb of peace, and exercising political functions within the city; Caesar once quelled a mutiny of his legions by addressing them as quirites, showing by this address that they were disbanded and were no longer soldiers.^[122]

A more real historical difficulty with respect to the original connotation of these words, is to determine whether they denoted the whole people, Plebeians as well as Patricians. Roman records do not use populus as equivalent to the patrician community alone; but these records all refer to a time after the Plebeians had won political rights, at least the rights of serving in the legions and of voting. If populus and quirites denoted the aggregate of fighting, and therefore privileged, men, they must have originally referred exclusively to the patrician community. After the Servian constitution the words denote the whole people (universus populus). Populus and plebs are henceforth only distinguished as the whole to the part—the distinction being necessary, since the Plebs continued to form a corporation apart, and this corporation excluded the patrician families.^[123] So, in a later official formula, senatus populusque Romanus denotes two corporations, the latter composed of all the members of the state, but in this the individual members of the smaller corporation are included.

Civis, a word of uncertain origin, signifies less definitely than quirites the possession of active political rights. Hence its application to women and to the partially-privileged members of the state—to those who were, at certain periods of Roman history, given rights in private law, while debarred from the exercise of the suffrage or the attainment of office. It is possible that the distinction between the full citizen (civis optimo jure) and the partial citizen (civis non optimo jure), although probably not a primitive,^[124] may yet be an ancient conception of Roman law. Those Plebeians who had never been, or who had ceased to be, entirely dependent on a patronus for the exercise of their legal rights, would practically have belonged to this latter class. Before the reform of Servius, which gave them political privileges, they might have been called cives; it is only after this reform that they could have been called quirites. It was, perhaps, in consequence of this change in the constitution that cives replaced quirites as the designation of the full citizens with reference to all their rights.

If we ask what the original rights of the citizen of Rome were, it is impossible to frame a simple category applicable to all the cives. Taking our stand at a period just before the Servian reforms, we find that private rights were possessed in varying degrees by all the members of the community. These rights are generally summed up as those of trade and of marriage (commercii et conubii). The first is the legal capacity to acquire full rights in every kind of property, to effect its acquisition, and to transfer it by the most binding forms, and to defend the acquired right in one's own person by Roman process of law (legis actio). This commercium was possessed equally by the Patricians and the free Plebeians. It was no infringement of the right of commerce that the right of occupying domain-land wrested from the enemy may for a long time have been possessed only by the dominant order;^[125] for such land was not acquired, but only held on a precarious tenure from the state, and the privilege was, perhaps, one of fact rather than of law. The jus conubii is the right to conclude a marriage which is regarded as fully valid by the state (matrimonium legitimum or jure civili), and which, therefore, gives rise to the patria potestas. This right was possessed by the Patricians and by at least the free Plebeians, but by each class only within itself. There was no right of intermarriage between the orders, and the member of each effected his position as a father by a different ceremony.^[126] The rights consequent on membership of a clan—those of inheritance and of religious communion—were, as we saw, probably shared with the Patricians by those Plebeians at least whose ancestors had never been in a condition of clientship.

Public rights—those of voting, of serving as a fully-equipped soldier in the legions, and probably of holding office as a delegate of the king—were possessed exclusively by the Patricians; and to these privileges we must add the right of holding the fullest communion with the gods (jus auspiciorum).

Auspicium, or the divination by birds, came eventually to be applied to any circumstance that might be interpreted as an expression of the will of the gods. The capacities of human beings with reference to these signs are partly a right of invoking, partly a power of interpreting them. Both the right and the power rest on the assumption that there is a medium of intercourse between the national gods and the citizens of the state,^[127] and the peculiarities of the conception which the Romans formed of this divine patronage are shown by their views both of the nature of the revelation and of the qualifications requisite for the "medium."

(i.) The revelation is not an answer to a question about future events, for true divination is not an attempt to pry into the hidden counsels of the gods; this profession of the Chaldaeans was never looked on with favour at Rome, and no science of the future was encouraged by the state. The Roman consultation of the gods is only employed as the test of the rightness of an already formed human resolution.^[128] It tells men only whether they are to carry out a course of action already purposed; it may confirm them in it or warn them from it; and it is the duty of men to seek a sign either of encouragement or of warning. It is of the highest importance to remember this view of the guidance of the gods, for it is the chief sign of the way in which the Romans, in spite of their genuinely religious spirit (nay, as an outcome of it), subordinated the theocratic to the lay element. The chief effect of this subordination is the unfettered use of human reason; religion is employed as a test, rather than as a guide, of rightness of action. This is a thoroughly lay view of the function of religion in life, very unlike that of the Jewish prophet who questions God in detail, but only for interpretation of a law which is the product of His, not of the human will. The belief that the gods do not give instruction, but merely advice, gave an "inward freedom" to the Roman, which made him at times resent the divine interference, and we shall find many instances of his forcing an interpretation to suit his wishes. The omen that is not seen need not be attended to, and precautions are taken that it shall not be seen. In undertaking acts of state, the magistrates are bound to ask for signs; but all the efforts of human ingenuity are directed to secure that the signs shall be favourable.^[129]

(ii.) It is plain that, on this theory of religious intervention, no priestly medium is required between the gods and their worshippers. Divination as the science of the future is an elaborate art, which cannot be possessed by the ordinary man. It requires the knowledge of ritual to compel the divine utterance; it assumes that the gods have special confidence in the select participators of an inner cultus, to whom they reveal what is hidden from the many; it requires the devotion of a lifetime, and often special rules of asceticism and purity, to interpret the hidden signs; it leads, in short, to the belief in oracular power, in the prophetic gift, in the claims of a priesthood specially set apart.^[130] There was none of this at Rome. The right of invoking auspices is not a priestly gift; it is one that is possessed, in a higher degree by the magistrate, in a lower degree by all the full citizens of the primitive Roman community. It is true that there is a class of wise men, the augurs, whose chief function is the interpretation of signs, but their function is limited to interpretation; they have no more power than any private individual, and less power than the magistrate, of eliciting such a revelation. Yet, if the assistance of the augur was called in, and his interpretation given, this verdict was final. We are told that disobedience to it, at least by the magistrate in taking the public auspices, was in early times visited with a capital penalty;^[131] a statement which probably means that the heads of the Roman religion, the pontiffs, reckoned such an impiety as one for which the gods would accept no expiation, and for which, therefore, the penalty of excommunication (sacer esto) was pronounced.

The right of taking the auspices is said to have been a gift peculiar to the Patricians; but the extent of this gift can be estimated only with reference to a fourfold division of the auspices, which, from its nature, must have been primitive and not a creation of the later disciplina of the augurs.

The auspices were divided into impetrativa (or impetrita) and oblativa.^[132] The auspicia impetrativa were those which were sought and asked for, and such signs might be taken from observation of the sky or from the flight or sounds of birds. The oblativa were those which were forced on the attention, and which, since they were not sought, were generally regarded as an impediment to action, and, therefore, as unfavourable. They were gathered from a heterogeneous collection of signs of ill-omen (dirae). It is plain that the right to take or, as it is expressed, to have auspices (habere auspicia) can refer only to the first of these two categories; it was this right that was assumed to be peculiar to the Patricians; it was the members of the original clans alone, the primitive patres, who had the right of asking signs of the gods, and it was held that every important act of their lives, whether public or private, should be pervaded by this divine intercourse. It was believed that it was through auspices that the city had been raised, political development attained, and former victories won.^[133] The existence of the patrician order is from this point of view a necessary condition of the existence of the state itself, for without it the right of eliciting the divine will would be wholly lost.^[134] But no human power could prevent the Plebeians from following the religious scruples of their betters in giving heed to those warnings which were thrust upon their notice. The auspicia oblativa, whether the gods destined them for others besides the patrician body or not, must from the earliest times have been respected by the Plebeians, and have guided their political conduct when they became a corporation within the state.

The right of taking auspices was neither a priestly nor even a magisterial function, but was possessed by every Patrician. But the man in a private capacity could exercise it only in his private concerns; the auspices destined to guide public action are vested in the person of the patrician magistrate. Hence the distinction between auspicia publica and privata. There was a time when no important act of business or domestic life was undertaken without an appeal for divine guidance.^[135] Marriage especially demanded the taking of the auspices; and even when the custom of such private divination had become wholly discarded, a survival of the custom is found in the presence of auspices, friends of the bridegroom who superintend the due performance of the rites.^[136] The confarreatio was older than the traditional institution of the augural college, and it is not probable that official intervention was brought to bear on marriage, still less on such concerns as were more strictly private. Hence it is difficult to see how the Plebeians could have been prevented from taking the auspicia privata, although their use of them was probably scoffed at by their patrician rulers. On the one hand, we find that the incapacity of the Plebeians to share in the auspices was one of the arguments used against the permission of conubium between the orders;^[137] on the other, that the auspex continues to be an integral part of a ceremony which was founded on plebeian marriage law.

It was different with the auspices taken on behalf of the state (auspicia publica). It is the Patricians alone who have these auspices, and only a magistrate belonging to the order can exercise the right of looking for them (spectio).^[138] This remains not only a purely magisterial, but a purely patrician privilege, and the so-called plebeian magistrates of later times, great as their power was, had not the gift. It is quite true that, after the Plebs had forced its way into the consulship, this right could not be denied to the plebeian holders of the supreme office. But the admission was based on the legal fiction that the holder of an office once reserved to the patres was, for religious purposes, a patrician magistrate.^[139]

The enjoyment of full political rights in ancient Rome was conditioned only by membership of a patrician gens; full citizenship here, as in most ancient states, being dependent on birth, and the membership of a purely private association satisfying all the demands that the state made as a condition of the attainment of its rights. But there were other forms of association of a definitely political character, amongst which the citizens were distributed, and as members of which they exercised active political rights or were subject to personal burdens. These were the three patrician tribes of Ramnes, Tities, and Luceres, and the thirty curiae. With reference to the question whether these were primary and natural associations of an ethnic character or artificial creations made by a supreme authority after the founding of Rome, we have already seen^[140] that the tribus are probably an ethnic survival artificially employed; in the case of the curiae, it must remain far less certain whether they were of spontaneous growth or purely artificial creations, or (what is perhaps more probable) in the main natural associations, artificially regulated in number and grouping to suit a political purpose.

The tribe, which was a division not merely of the citizen body but of the land, was the basis for taxation and the military levy.^[141] We know nothing of the first burden, but it is probable that no detailed scheme of direct taxation existed in the early Roman state. The revenues from the king's domains probably rendered him self-sufficing, while the patrician burgesses served in the army at their own cost, and were doubtless expected to defray the expenses of their retainers. It is probable that in cases of emergency a tax in kind was levied from the landholders of the tribes.

Of the military burdens tradition has preserved some plausible details. The army was known as the legio or "gathering,"^[142] and was composed of three "thousands" (milites),^[143] one from each of the three tribes. These foot-soldiers were commanded by three or nine tribal officers, the tribuni militum.^[144] The cavalry consisted of three hundred celeres, one from each of the three tribes, each commanded by three tribuni celerum. When the Patriciate was enlarged by the addition of the gentes minores,^[145] these three hundreds (centuriae) were increased to six.^[146]

Besides the heavy infantry and the cavalry, there may have been a corps of light-armed troops (velites and arquites), and these would doubtless have been composed mainly of clients. We do not know whether the free Plebeians were forced to serve; but, if they did, it would only have been in this inferior capacity, which required no time for training and no cost of maintaining a panoply. It is evident that the whole burden of the regular levy, and of such war-taxation as then existed, fell upon the Patricians, and before the close of the monarchy an effort was made to remedy this unequal distribution of burdens—an effort which had as its result the abolition of the patrician tribes as the leading divisions of the state and a serious infringement of patrician rights.

The thirty curiae, originally local units, as is proved by their names,^[147] were divided, ten into each of the three tribes. The members of the clans belonging to the same curia were called curiales. But, although the curiae had local centres, membership of these bodies did not depend on residence in a given locality. It was hereditary; and if the members of a gens migrated from its curia, the gentiles were still members of that state-division. The curiae were religious as well as political associations, which had from the first, or finally developed, a close corporate life. Each had its peculiar sacra^[148] and a place of worship, containing an altar and chapel, which itself bore the name curia;^[149] and the religious affairs of each were conducted by a priest called curio, assisted by a flamen curialis.^[150] The thirty curiones formed a college, of which the curio maximus was the president.^[151]

It is difficult to say how far the religious organisation of the curiae was a natural or artificial development. But artifice was certainly at work in determining their important political character. The primitive popular assembly at Rome is the comitia curiata, composed wholly of Patricians. Here each member of a patrician clan above the legal age—probably the age of eighteen, at which military service commenced—had the right of giving a single vote; a majority of the curiales decided the vote of the particular curia, and the decision of the assembly was determined by the majority of the groups.

They also had, in a secondary degree, an importance of a military kind; for the supply of knights to the corps of celeres is said to have been effected through the curiae.^[152]

§ 5. The Monarchical Constitution

It is generally agreed that the monarchical constitution of early Rome rested on a limited sovereignty of the people, a power restricted by the extraordinary authority of their sole magistrate. This popular sovereignty was asserted in jurisdiction, in legislation, and in the ratification of magisterial power. The attribution of the right of appeal in criminal cases (provocatio)^[153] to the people shows that with them rests either the sovereign attribute of pardon or some right of trying criminal cases in the last resort. Tradition makes the Roman people the sole source of law,^[154] that is, of standing ordinances of a general kind which are to bind the community,^[155] although the initiative in legislation can come only from the king; and apart from the rulings of the pontifical college, which did not require the sanction of the people, this theory of primitive legislation seems to be correct; for the very early laws passed by the comitia on the downfall of the monarchy do not appear to mark any violent break in the theory of the constitution. We do not know whether the king employed the formula afterwards used by the Republican magistrates, which elicited the "will and command" of the burgesses (velitis, jubeatis, quirites); but law (lex) is from the first something "laid down" by a competent authority, and binding, therefore, in virtue of the power that ordains it.^[156] After its ordinance it may or must create a contractual relation between individuals,^[157] but there is no hint of its being the result of a contract or co-operation between independent authorities. The source of law is, therefore, simple; it is the people's will; but, through the bar to utterance created by the magistracy, this will is very limited in its capacity for expression. The people are also affirmed to have been in a certain sense the source of honour, and typical illustrations of this power are presented by the traditional beliefs that the regal insignia of Etruria, adopted by the kings of Rome, were only assumed by them with the consent of Senate and people,^[158] and that the appointment of officers for special purposes, although these may have been in theory merely delegates of the king, had to be ratified by laws of the curiae. The quaestors, the earliest prototypes of the later magistrates at Rome, are said to have been so appointed.^[159]

The people, therefore, possessed certain sovereign rights, but each right was limited by the vast authority of their personal representative, who wielded the whole of the executive, and so much of the legislative power as is implied in the sole right of initiative. We cannot even speak of the people as vesting this power in their king; for their right of election was, as we shall see, probably as limited as their power of legislation.

This personal head possessed a variety of titles which marked the various aspects of his rule—titles which survived into the Republic, and, on the differentiation of the functions which he united, were applied to various magistrates. As supreme judge he was judex, as leader and commander in war praetor,^[160] dictator, and magister populi.^[161] The most general title which marked him out as universal head of the state, in religious as in civil matters, was that of rex, the "regulator" of all things human and divine—a title which survived in the rex sacrorum, the heir of the king in sacrifice and in ritual. The powers on which this position was based were summed up in the word imperium.^[162]

The severance of the king from the state, over which he ruled, was also expressed in certain outward signs (insignia), which distinguished him from the rest of the burgesses. He was preceded by twelve "summoners" (lictores),^[163] each carrying a bundle of rods (fasces), and the axe-head gleamed from these bundles even within the walls, for the king's military jurisdiction could be exercised within the city. His robe was of "purple," or rather of scarlet—the colour in which most nations have seen an emblem of sovereignty—but his dress probably varied with the ritual which he was performing, and the three kinds of striped garment (trabea) which survived in the Republic—that of purple for the priestly office, of purple and saffron for augury, of purple striped with white for the rex^[164]—were probably all vestments of the king. Tradition also assigns him the eagle-headed sceptre, the golden crown, the throne (solium),^[165] and the chariot within the walls, from which the curule chair (sella curulis) was believed to be derived.^[166] The statement that the triumphal insignia of the Roman magistrate were but the revival of the ordinary adornments of the king^[167] is extremely probable; for the crown, the toga picta (a development of the purple robe),^[168] and the chariot reappear in the Roman triumph.

Other royal prerogatives were connected with the primitive conception of a patriarchal monarchy. The king, although he lacks the absolutism of the paterfamilias, occupies much the same position in the state as the father does in the family. In a sense he is owner of the whole community, and as such capable of commanding the munera of the burgesses.^[169] But a large portion of the public domain was more peculiarly set apart for his own private use.^[170] This crown-land must have been worked mainly by the king's own clients, who held it precario from him;^[171] for there seems no reason to doubt the belief that a large proportion of the half-free Plebeians were in the immediate clientela of the king, connected with the community chiefly through him, its representative. These may have been captives who had submitted to the fides of the state, and whom their conqueror had not attached as dependants to other leading families of the community.

The theory of a kingship is best expressed in the mode in which the monarch ascends the throne. The alternative principles that have usually been recognised are the hereditary, the elective, or that of divine right.

Of the hereditary principle there is no trace at Rome. It is contradicted by the facts of the traditional history, which believed that, when the hereditary principle was first realised in the last king, the monarchy came to an end; and it is expressly denied by later authors who reflected on the character of the early monarchy.^[172] There is rather more to be said for the theory of divine right. Romulus is the son of a god and awaits the verdict of heaven before he assumes his rule. Numa, his successor, insists that the same verdict shall be appealed to.^[173] But, if the taking of the auspices be the sign of a divine origin, then everything in Rome proceeds almost equally from the gods. Probably in earlier as in later Rome religion played a most important subsidiary part in public life, but we have no warrant for believing that it was ever the sole guiding power. As we shall see, in discussing the question of the inauguration of the king, this theory raises into a primary and material what was merely a secondary and formal element in the transmission of the monarchy, although this formal element was one of the utmost necessity and importance.

The Roman thinkers were thus thrown back on the theory of election. Tradition is unanimous in representing the monarchy as elective—depending, i.e., on free popular election, or on such election guided by the Senate.^[174] On the death of a king there is no immediate successor with a title to rule; an interim-king (interrex) is appointed for a few days, and on his proposal a king is elected by the patrician burgesses at the comitia curiata, subject to the sanction of the patrician Senate (auctoritas patrum).^[175]

In the expression of these views the Roman thinkers were attempting to reconstruct the monarchy from a knowledge of their own magistracy; for they rightly believed that this magistracy was a very slight modification of the original kingship. The elective principle of the Republic was not regarded as a novelty in the theory of the magistracy, and there were two reasons for this view. The first was that there was a real continuity, for the elective process was always subsidiary to another, that of nomination by the magistrate who guided the elections. The latter became an almost formal process in the Republic, but the question was not asked whether at one time it may not have been the material element. Secondly, there was really an elective element in the monarchy, which survived as a form into the Republic, a form which the hypothesis of monarchical election adopted by Roman antiquarians could not explain. It is strange that, in seeking for their theory of regal appointment, they should not have appealed to the clearest survival of the monarchy, the dictatorship, on which so much of the rest of their reconstruction of the monarchical power was based.

In the two definite survivals of the Roman monarchy election was not recognised; the dictator was nominated by the consul, not by his predecessor, for it was only an occasional office; and the rex sacrorum was nominated by the pontifex maximus,^[176] no longer by the preceding rex; for this office simply continued the priestly functions of the king, the religious headship being vested in the pontifex. This oldest principle of appointment survived in Republican Rome as an integral part of the elective process, to reappear again in the Principate, in cases where election had become a mere form, as the living principle.^[177] It is, in fact, the one principle that has a continuous history; election is the Republican interlude.

If, therefore, we are led to consider the monarchy as not purely an elective office, and substitute for election the principle of nomination, we must consider that it was the right, and probably the duty, of the king of Rome to nominate his successor. If there had been no due nomination during his lifetime, and consequently no distinctly marked out successor to the monarchy, the duty of providing such a successor lapsed to the Senate, from which body the interrex was appointed. The interregnum is said by tradition to have dated from the first vacancy in the regal office, after the death of Romulus.^[178] When such a vacancy had occurred, the auspices, under which the state had been founded, and which were the mark of divine acceptance of the kingly rule, "returned to the patres,"^[179] and we are told that this was from the first interpreted to mean, not to the comitia curiata, but to the patrician Senate. The earliest interregnum is represented as an exercise of collective rule by the Senate; but, on the analogy of the sole magistracy, it took the form of a creation of a succession of interreges. The first step was the division of the Senate into decuriae;^[180] each decury had fifty days of government allotted to it; within this period each individual member of the decuria exercised rule for five days, and, according to one account, the succession of the decuries was determined by lot (sortitio).^[181] The rule is represented as collegiate, the whole decury possessing the imperium, while the individual who ruled for five days had the fasces and the external emblems of the royal power.^[182] In later times we shall see that, though the interregnum was retained, the whole procedure was simplified by the abandonment of the collegiate principle. If it ever existed, we must suppose that, as soon as ever the resolution of the Senate was taken, the collective rule could be interrupted by any interrex, except the first, nominating the king.^[183] The interregnum, although represented by our authorities as an invariable part of the procedure in the appointment of a king, was probably from the first a makeshift, only resorted to when the ordinary procedure had been interrupted through unforeseen causes, and there was no definitely designated successor.^[184]

Yet, though the monarchy was not strictly elective, certain quasi-elective processes were connected by tradition with the appointment of the king, on the part both of Senate and people.

The authority of the Senate (auctoritas patrum) is mentioned in connexion with all the transmissions of the supreme office.^[185] It is an authority, however, which did not spring from any theory of the Senate's possessing elective powers, but was simply a result of the universal principle that no man in authority should act without taking advice of his consilium, and was merely an outcome of the constitutional necessity which the king was under of consulting the Senate on all great measures affecting the popular welfare. The greatest of these would be the appointment of a successor.

Secondly, we are told of a formal ratification of the king's power by the people assembled in the comitia curiata, one which continued into the Republic under the title of the lex curiata, a formal sanction always required for the ratification of an imperium already assumed.^[186] It is said to have had this character even in the time of the monarchy, and this was thought to be shown by the fact that the king himself proposed the lex curiata which was to give the sanction for the exercise of his own power.^[187] Such procedure was, indeed, necessary, since no one but the king had the right of putting the question to the people; consequently we must accept the view that the lex curiata was not absolutely necessary for the exercise of power, and might be legally, though not perhaps constitutionally, withheld, as it was by King Servius during the early part of his reign.^[188]

The Roman jurists, who believed that the king was elected, credited the people with two distinct acts in the creation of a king—first, his election, and then the formal ratification of this election.^[189] A parallel for this seemed to be furnished by Republican usage, where the lex was taken by magistrates already elected as a necessary preliminary to the exercise of the imperium. But at this period the magistrates were not elected by the comitia curiata, and the lex of this assembly is a mere survival, a reminiscence of the formal sovereignty which continued to be vested in the curiae. The lex curiata is much more comprehensible in origin if the king was first nominated independently of the people and then challenged their allegiance. It was probably little more than an acclamation on the first summons of the curiae by the king. The preceding king must have already made known to the people his choice of a successor, and the popular sentiment would have been already expressed; thus there was little chance of adverse shouts when the new king challenged the allegiance of his burgesses. If there was a chance of the challenge not being accepted, it might, as we saw, be withheld. But an exercise of the regal imperium which was not sanctioned by these two acts of Senate and people—the expressed will of the one and the declared allegiance of the other—was regarded by later authorities as unconstitutional.^[190]

There was also a religious aspect of the king's appointment. His assumption of power was regarded as incomplete until it had been shown that the gods sanctioned the rule which he had assumed. This was done by the first taking of the auspices^[191]—a ceremony observed by magistrates of the Republic before entering on the exercise of their office. This was the final test for the right to exercise secular power; but the king's position as high-priest of the community was supposed to require another initiatory act.

This was the inauguration, which differed from the taking of the auspices. In the ordinary form of the auspicia the individual entering on office has himself the right of spectio;^[192] in the Republic it belonged to magistrates as such, and was never regarded as a merely priestly function. In the special inauguration, on the contrary, the spectio is taken by some other than the person inaugurated. The priest-king Numa is naturally associated with this ceremony by tradition; by him an appointed augur is employed to watch for signs,^[193] and this ceremony of inauguration by one of the priesthood, other than the person so inaugurated, is represented as being from this time onwards a standing part of the procedure requisite for entrance on the regal office. But this legend of Numa is rendered somewhat incredible by the fact that the augurs have no right of spectio, and that of all the priests of the Republic it is only the semi-*magisterial pontifex maximus, the head of the state religion, who has the right of taking auspices. The fact that the rex sacrorum in the Republic had a special inauguration^[194] might lend support to the legend, were it not that this rex had become wholly a priest and thus lost his right of intercourse with the gods through the spectio. The question of the inauguration of the king, unimportant in itself, runs up into two wider questions; the first is whether there was a separation in idea between the king's magisterial and his priestly functions; the second, whether the king was himself pontifex maximus and thus the supreme head of the Roman religion.

For an answer to the first question it is not safe to appeal to later examples, for the priesthood and the magistracy may have been first sundered during the Republic. But tradition^[195] and survivals represent the king as the first priest in the community. His successor, the rex sacrorum, ranks, as a priest, above the three great flamines and the pontifex maximus in the order of the priesthood (ordo sacerdotum);^[196] the religious duties of this rex point to the fact that the king's functions were a regular cultus, not the occasional religious duties of a Roman magistrate,^[197] while his wife, the regina sacrorum, had her own simultaneous sacrifices.^[198]

But the position of first priest did not in the Republic imply the headship of the Roman religion; the chief pontiff, who is its head, comes, as we saw, low in the order of the priesthood. The importance of cultus and of religious authority springing from higher knowledge are not the same. The pontiffs are only secondarily a priestly, primarily they are a religious order, whose position is based on the knowledge of religious law (fas). The separation between the true priesthood and the presidency of religion may, indeed, have been a Republican development, due to the secularisation of the magistracy; the priestly functions of the magistrate being continued in the rex sacrorum, and the religious presidency being also separated from the civil power, but vested in another official, the chief pontiff. But it is possible that the separation may have been primitive, and that cultus and the knowledge of religious law did not go together. It is evident that great uncertainty prevailed as to the king's relation to the pontifical college. While one account speaks of Numa selecting Numa Marcius as "the pontiff,"^[199] another describes the same king as instituting five pontiffs,^[200] and we are further told that, before the lex Ogulnia (300 B.C.), the college consisted of four members.^[201] The discrepancy between the two last accounts has been reconciled by supposing that the king himself was reckoned as a member of the college, and that the expulsion of the king reduced the number from five to four.^[202] It is possible that the king did not bear the title pontifex maximus and was yet head of the college; it is even possible that, as one account which we have quoted seems to indicate,^[203] there was a chief pontiff as his delegate. We can hardly refuse him a place at this board in face of the evidences which point to his universal headship of religion. The creation of the augurate and the priesthoods is his work. Romulus appoints the augurs;^[204] Numa institutes the three great Flamines, the Salii, and the Pontifex, although most of the important ceremonies of religion are performed by himself personally.^[205] Consequently we may conclude that the appointment of special individuals to these priesthoods must have been a part of the king's office.^[206] It has even been held (chiefly as an inference from the fact that the Vestals and Flamens were in the potestas of the pontifex maximus of the Republic) that the former were the king's unmarried daughters who attended to the sacred fire of the state in the king's house, the latter his sons whose duty it was to kindle the fire for the sacrificial worship of particular deities, Jupiter, Mars, and Quirinus. This pleasing picture may have represented the primitive state of the patriarchal kingship; but this had been long outgrown before the close of the monarchy. There we find a fully developed hierarchy and the existence of religious guilds, such as those of pontiffs and augurs, who cultivate the science, not the mere ritual of religion, and who have no possible connexion with the king's household arrangements.

At the head of this imposing organisation stands the rex, and, in virtue of this position, he is the chief expounder of the rules of divine law (fas). It is a law which has hardly any limits, running parallel with civil justice (jus) but far beyond its bounds. Three methods of its operation may conveniently be distinguished. One is purely religious and ritualistic and is expressed in the control of priesthoods, religious colleges, and cults. The second asserts itself in a control over the life of the ordinary citizen in matters criminal and civil. The third is that which connects the Roman state with other independent communities and forms the international law of the period.

(i.) The control over priesthood and cultus belongs to the history of religion rather than to that of constitutional law, and it chiefly presents a legal aspect in connexion with the question of religious jurisdiction. The difficult questions that arose in Republican times from the clashing of the religious and the civil power could hardly have been heard of as yet, for the supreme control of both was vested in the same man. But the very nature of this disciplinary jurisdiction over priests has been a matter of some dispute. The favourite hypothesis of a family jurisdiction has been applied to the case, and the hypothesis may conceivably be correct so far as the Flamens and the Vestals are concerned, although even in this sphere it is doubtful by what paternal right the head of religion could do the Vestal's paramour to death. Other phases of the power are still more inexplicable on this ground. A right of punishing augurs for a breach of ritualistic rules survived into the Republic, and seems to be a jurisdiction exercised over them as members of a religious body. There is, however, no trace of the priesthood holding a privileged position, and in all secular matters its members are subject to the ordinary law. Such privileges as they possess rest on religious scruples. When the Flamen was caught (captus) for the god, he became free from the paternal power,^[207] and the civil authority could not compel him to take an oath.^[208] The persons of the Vestals were inviolable;^[209] the sanctity of both Flamens and Vestals also invested them with the right of asylum. The bonds were struck off the prisoner who took refuge in the Flamen's house; and, if the criminal on the way to punishment met him or the Vestal, he could not be scourged or executed on that day. But it is only in these two cases that the severance from the world is strongly marked; we have no reason for believing that, in the earliest period of Rome's history, the members of the religious orders were isolated from the mass of the people with privileges and a jurisdiction all their own.

The control of the cultus, and the maintenance of its purity, are marked as one of the earliest duties of the pontifex maximus, and must have belonged to the king. It is he that sees that no ancestral right is neglected, no foreign one acquired.^[210] Here we have a religious power that governs more than the priesthood; the maintenance of the sacra privata are as important in its eyes as that of the sacra publica, and its supervision must have extended beyond the limits of the Patriciate; for it is impossible to believe that religion cared only for the sacra of the patrician clans, and aimed only at preventing them from corrupting their ancestral worship. The Plebeian and the client were under the protection of the gods, and might bring down a curse on the community by reckless innovation or neglect.

(ii.) The control exercised by fas over the citizens' life in matters not immediately connected with ritual and worship may be first illustrated by its penal sanctions. We cannot, indeed, say that there was a time when the Roman law regarded every crime as a sin, for from the very first we are confronted with a dualism, and religious and secular sanctions exist side by side. But religion has left a deeper impress here than elsewhere—in the name given to punishment,^[211] in the form of its infliction, in the still stranger fact that, by the disappearance of religious sanctions, breaches of obligation that the modern world regards as crimes remained unpunished by the secular arm.

The punishment for sin must be some form of expiation. This is the piaculum adjudged in the monarchy as in Republican times by the head of religion; and not adjudged arbitrarily, for even by the close of the monarchical period classes of offences had doubtless been drawn up by the pontiffs with the equivalent expiation, which was directed to avert the anger of the gods from the whole community. Apart from the regularly recurring lustrations at the census—the consequence of the sense of universal sinfulness in the community—individual misdeeds could be expiated in this way. Such was a murder that was unintentional or in which mitigating circumstances were present,^[212] and such was the violation of the chastity of Juno's person through the touching of her altar by a paelex.^[213] In graver cases expiation could only be accepted where there was no intent,^[214] as in the wrong done to a god by swearing falsely in his name.^[215] There was also a class of deadly sins for which the gods would accept no atonement but the life and the goods of the sinner himself. Amongst the acts which called forth this consecratio capitis were the violation of the relations of client and patron,^[216] the ill-treatment of elders by their children,^[217] the pulling up or alteration of boundary stones,^[218] the destruction of a neighbour's corn by night.^[219] The god thus appeased was often the deity who was held to be specially offended by the act; but sometimes the head and the goods were not dedicated to the same divinities. The person was adjudged to Jupiter, the dispenser of life; the landed property to the gods who nourish the human race, Ceres and Liber.^[220] This custom of consecration gradually ceased to have its literal fulfilment. A man might still be declared sacer, but excommunication had taken the place of immolation. Such a man was cut off from all divine and, therefore, from all human help, and his slayer was blood-guiltless.^[221] This theory, of a man being cut off from the community while his life was spared, became of great importance in the history of Roman criminal law. It survived in the "interdiction of fire and water" (aquae et ignis interdictio), and familiarised the Romans with the idea that the severest penalty did not require the sacrifice of life.

In matters of private law we have already witnessed the presence of religion in marriage, adoption, testament, and the transmission of the sacra. Its authority may be further illustrated by the formularies of civil procedure. Here the form of words was all-important, and in the early Republic all binding formulae, whether for oaths that were to be effectual, for vows or for consecration, were known only to the pontiffs. The solemn forms of law (legis actiones) issued from the same authority, and in one of their most frequent manifestations, the sacramentum, the procedure was distinctly religious.^[222] But who could say whether the king, when he gave the prescribed form of words for an action, acted as a religious or a civil head, as the representative of fas or jus? Here we are on the borderland between the two.

(iii.) Nations know no common jus, and fas is the sole support of international law. Each people is protected by its own divine guardians; hence a war of two nations is a contest between their gods, and a treaty between two peoples a compact between their respective divinities. But each nation is to some extent under the protection of the other's gods. Jupiter of Rome is powerless if the war commenced by Rome is unjust, and will punish his own people if they have stained his honour by violating a treaty. Even though there is no belief in community of guardianship, the rights of other peoples are still conceived to be under the protection of the Roman gods.

These beliefs necessitated elaborate religious preliminaries to the declaration of a war in order that it might be just and holy (justum piumque),^[223] as well as ceremonies for the conclusion of a peace that was to bind the public conscience (fides publica).^[224] Such a ritual may have been performed, originally, by the king himself; but tradition states that, at a very early period, a special guild of priests, the Fetiales or public orators, were appointed for this purpose.^[225] Their chief functions were the declaration of war and the conclusion of peace, but the ritual observed in both of these acts may be more appropriately described when we are dealing with the international relations of Rome. There were other religious preliminaries to a war which, though not necessitated by divine law, it was highly expedient to observe, in order to increase the chances of victory. Vows (vota) were offered to the native gods, and for these to be valid they must be couched in a form prescribed by the pontifical college.^[226] And sometimes the king, before a battle or a siege, chants an incantation (carmen), the purport of which is to weaken the loyalty of the enemies' gods to their worshippers, and to bring them over to the side of Rome. He bribes them with temples, offerings, and the honours of a special cult.^[227] If the bribery is effective and the city falls, he must carry out his pledge. The conquered gods are received at Rome; and their worship is guaranteed by the distribution of their cults over the patrician clans.^[228] The instances preserved of this devotio and evocatio naturally date from the time of the Republic.^[229] During this period the forms are prescribed by the pontiffs. But the antiquity of the procedure is beyond question. The results of evocation on the part of the king, who was his own pontiff, are manifested in the local worships of the conquered towns of Latium, which found an early home at Rome.

If we turn from the religious to the civil powers of the king, it is easier to estimate their extent than to determine the precise modes of their exercise. Later belief credited him with the sole executive power of the state. The Roman kings possessed πᾶσα ἀρχή, and exercised the imperium at their own discretion.^[230] Such statements are not surprising if we remember what is implied in the imperium, and that there appear to have been no legal limitations to its exercise during the monarchy. Imperium implied the combination of the highest military and civil authority; it united jurisdiction with command in war, and it included the further right of intercourse with the people (jus rogandi); while the later restrictions on this power, the limitation of office by time or by colleagueship, had not yet been created. The king held office for life, and he had no colleague; for the other officials in the state must have been mere delegates whom, in the strict theory of the constitution, he permitted to exist.

But if the king's power was legally free from restraint, and we do not believe that there was any large body of leges binding his authority, it could not have been free from the limitations imposed by custom and constitutional usage. Customary law securing rights for the people is said to have been raised to the level of positive law by Servius Tullius.^[231] But even the earlier usages must have formed a kind of code—such a code as that which contained the pontifical ordinances known as the leges regiae.^[232] It was the belief in the existence of this early customary law which led to the later description of the king's power as an imperium legitimum.^[233] Amongst his constitutional obligations was that of consulting the Senate in any important matter.

There can be little doubt that the original council of elders (senatus) was a body of nominees selected by the king as his permanent advising body (consilium publicum).^[234] In consequence the position of senator could not have been a life-office; there could neither have been any definite mode of attaining the dignity, nor any claim on the part of an individual to retain it. A new king might decline to summon some of his predecessor's councillors; he might even, perhaps, change the personnel of his advisers during the course of his reign. It was in later times believed that the freedom of selection was so great that no stigma attached to members who were "passed over" (praeteriti) by the king.^[235]

Yet tradition attributes a definiteness to the Senate which is not consistent with the idea of a purely arbitrary selection. Its numbers at any given time are fixed, and it is to some extent made representative of the whole patrician community—for an increase in the number of full burgesses involved a corresponding increase in the numbers of this body.^[236] The number, originally 100,^[237] was raised by successive steps to 300 before the close of the monarchy.^[238] The two obvious units of representation were the curiae and the clans; but the latter, from their larger numbers, formed a better basis for reflecting the opinion of the whole community, and tradition does seem to have imposed a kind of constitutional necessity on the king of distributing his councillors as evenly as possible amongst the patrician gentes.^[239] It was thus that the distinction between the older and the newer clans was perpetuated in the procedure of the Senate;^[240] but the clan-influence left its strongest mark by giving a name to the members of the body itself. It was the leading heads of families (patres familias seniores) that the king summoned; and, in asking their advice, he addressed them as "heads of houses" (patres).

The primitive Senate is credited with two standing powers—the patrum auctoritas and the initiation of an interregnum. Neither of these prerogatives was directly contemplated by the constitution, and the Senate never becomes a corporation possessing powers in its own right until the time of the Empire. Tradition mentions the "authority of the fathers" as being necessary for the appointment of a new king; it leaves it to be inferred that it was required for the validity of laws as well, an inference probably not true of the period of the monarchy. As we have already explained, it was a legal right only in so far as it was an extreme instance of the necessity the magistrate was under of taking advice. Perhaps towards the close of the monarchy, with reference to the choice of a successor to the throne, custom had made it a standing prerogative. The interregnum rests on a somewhat different basis; it was a power which religion enjoined should be in the hands of the whole patrician community—usage had delegated the power to the patrician Senate; so here again we have a prerogative which rested wholly on custom.

A privilege only less constant than these was probably the control of foreign policy. The formula of the Fetiales, which is said to have dated from their institution during the monarchy, contains the clause: "But on these matters we will consult the elders at home, how we may obtain our rights."^[241] It was thus the duty of the king to consult the Senate in all matters affecting the international relations of the state. For a declaration of war, perhaps, even this was not sufficient. Tradition believed that, in this matter, reference must be made to the people assembled in the comitia curiata.^[242]

On the other hand, the right of making treaties (foedera) with states could not have been limited in this way. For the treaty made in time of peace the Senate, and perhaps the people, were consulted; but this could hardly have been the case with the treaty which closed a war and which was made on the field of battle. In the Republic there survives a shadowy and disputed right of the imperator in the field to make a treaty which shall bind the people. The right was denied, but only on the ground that the general could not take an oath binding on the public conscience. But the king was at once general and high-priest; he could doubtless take this oath even without the assistance of his servants, the Fetiales.

There were other manifestations of the king's power as general over which the people would have no control. The disposal of the booty taken in war and of the conquered lands was one of these,^[243] and the statements which record this right find support in Republican survivals. The control of the spoils of war (at least of the movable portions) belongs to the Republican general, subject to the advice of his council of war and sometimes to subsequent ratification by the Senate. The first condition may have been necessary in the time of the monarchy, but hardly the second.

The council of war was a type of the smaller special consilia, which the king doubtless employed to advise him in different branches of the administration; and such special councils must have been chosen from the great consilium publicum, the Senate. One of the most important of these was that which furnished his assessors in jurisdiction. That it became the custom, in the more important cases judged by the king in person, to employ a consilium of some sort, is stated in the charge brought by tradition against Tarquinius Superbus that he neglected this essential guarantee of even justice.^[244] In the secular criminal jurisdiction of the king such a council would doubtless have been taken from the Senate. In the religious jurisdiction, which we have considered, the pontiffs would have been the advising board.

Senators also must have been chiefly chosen as delegates of the king, except, perhaps, those appointed for subordinate command in war;^[245] there military fitness would be chiefly looked to.

The chief of these delegates was the prefect of the city (praefectus urbi), an alter ego left behind in the capital by the king when he himself was absent in the field.^[246] To him must have been delegated the whole of the executive power, and with it the right and duty of consulting the Senate. It is not probable that the right of questioning the people was or could be delegated.^[247] In criminal jurisdiction a distinction was believed to have been made in the cases brought before the king; the more important were tried by himself in person, the less important transmitted to judges chosen from the Senate.^[248] This may be the germ of a distinction which is said to have been perfected by Servius Tullius. Crimes affecting the public welfare he tried himself; wrongs done to private individuals he entrusted to others.^[249]

This principle of delegation is mentioned only in connexion with criminal jurisdiction. But, whatever its extent, it necessitated the grant by the magistrate to his delegate of a formula or lex, which was the expression of jus. This jus, "that which is right or fitting," expressed the order of society, as realised through human agency, not directly through the divine will.^[250] It is possible that even in early Rome it was treated as a right, a faculty of action (facultas agendi) or liberty enjoyed by one man against another, by individuals against corporations or by corporations against individuals. The differentiation between the rights of the state and the rights of the individual, always marked in procedure long before it is formulated in theory, finds expression in the change which tradition attributes to Servius.^[251] But there was never any clear line of demarcation between the two spheres. Much of what we call criminal law was at Rome a matter for civil actions dependent on private initiative, and such actions could in early times be brought only by the head of the family. But in so far as the early Romans had a criminal law, in so far, that is, as an offence against the individual could be regarded as a wrong done to society, this law was a part of the jus publicum.

The king was the sole exponent of this sense of violated right, and the sole interpreter of the jus fixed by custom or by law. Over the penalty he probably had little control. It was enjoined in his ruling and carried out by his lictors; but, in its various forms—death by the arbor infelix or from the Tarpeian rock—it was fixed by the mos majorum. The trial was a personal investigation (quaestio) undertaken by the king, with the assistance of a chosen body of advisers; and he might give judgment himself. But sometimes his judgment was conditioned. He specified the crime under which the accused was to be tried, and the penalty to be inflicted, but left the finding on the facts to his delegates.^[252] Two such classes of delegates are attributed to the regal period, the duumviri perduellionis and the quaestores parricidii.^[253]

There may have been an appeal from the delegates to the king, but tradition does not credit the king with any power of pardon. Whether the power of pardon resided anywhere depends on our interpretation of the trial of Horatius,^[254] which was believed to furnish the archetype of the provocatio. From this story appears the belief, which is often stated by other authorities,^[255] that the appeal to the people existed in the regal period, but one modified by the view that the citizens had no standing right of appeal against the king such as that secured against the Republican magistrate by the lex Valeria. The king, Tullus Hostilius, allows the appeal.^[256] The early dictatorship was similarly exempt from the necessity of permitting it, and on one occasion the precedent of Horatius was appealed to for the purpose of showing that, as the king had allowed, so the dictator should allow, the appeal.^[257] But the dictatorship is a revival of the military side of the monarchy with the military jurisdiction which the king exercises over Horatius. It is quite possible that before the close of the monarchy custom had established different spheres of criminal jurisdiction for the people and the king respectively;^[258] in some the people might have had a right to be judges in the last resort, and it is the idea of calling away a case to another court that is suggested by the word provocatio, not the modern idea of pardon.^[259] In other spheres the king could judge alone; the provocatio here is an act of grace. If, however, we consider the extent of the military and religious jurisdiction of the king, the competence of the people must have been small;^[260] and the provocatio itself may be a growth of the later monarchical period, the result of custom, and of a custom based chiefly on the permit of the king.

Civil jurisdiction is said to have been based on the king's judgment.^[261] How far this royal jurisdiction was personal we cannot say, but under all circumstances the king was the chief source of the jus privatum, in so far as he and his pontiffs alone knew the formularies of action,^[262] the most precise verbal accuracy in which was necessary for the successful conduct of a suit. It is probable that in many cases the king gave merely the formulary of action, that is, the ruling in law, and then sent the case before a private judge or arbitrator (judex privatus, arbiter), thus illustrating (although not, perhaps, on the scale recognised during the Republic) the fundamental division of judicial procedure into jus and judicium. This division of jurisdiction is probably primitive and not, as has sometimes been thought, a modification introduced by the later monarchy.^[263] Even in Republican times the judex was chosen by consent of the parties.^[264] He was an arbitrator between the litigants agreed to by a mutual compact,^[265] and an outcome of the notion of self-help so prominent in early Greek and Roman law. But one who knows the forms of action has to stand by and see that the words of these forms are correctly repeated. This depositary of jus is the king or one of his pontiffs. Hence eventually the public official comes to assist at the appointment of the judge. From this it is but a slight step to give the formula of action which settles the law of the case, and to leave it to the judex to decide the question of fact.

§ 6. The Servian Constitution

At some period before the close of the monarchy the absurdity of the existing constitutional arrangements began to be felt. In matters of private law there was not a single important difference between a free Plebeian and a Patrician; and large numbers of that portion of the Plebs which had sprung from clientship were virtually in a condition of independence. Although their tenure of the soil might be precarious, their right of acting for themselves in the law courts questionable, it must have been practically impossible to avoid the appearance of full ownership where the lord had not asserted his right for generations, or to prohibit the personal enforcement of claims where the original patronage had been long forgotten or had lapsed through the extinction of the patrician family on which the original client had been dependent. It was, in fact, impossible to say where the class of free Plebeians ended and that of protected Plebeians began. It was better, for the purposes contemplated by the impending reform which bears the name of Servius Tullius, that they should be regarded as on an equality, and that both classes should make up a single order. The essence of this reform is, in fact, the recognition of equality of rights in landed property. Ownership of Roman land ex jure quiritium was guaranteed to the whole plebeian order—probably even to those dependants and emancipated slaves whose clientship, and therefore whose precarious tenure of the soil, was patent;^[266] and with respect to the rights of commercium the order was put on a level with the Patriciate.

So far the object of the reform seems to be to confer privileges on certain classes of the Plebeians. Its real meaning was wholly different. The intention of the reformer—one which explains the readiness with which the change seems to have been accepted by the Patricians^[267]—was to impose burdens on the whole plebeian community. A recognition of the rights of property was a necessary preliminary to the imposition of taxation and of the full quota of military service. The patres, who welcomed this distribution of burdens, did not foresee that from these obligations would flow a fresh series of rights which would impair their monopoly of political power.

The Plebeians were being recognised for the first time as, in a sense, members of the state. The first problem was the choice of a medium through which they should be incorporated in it; for simple membership of a state which was not based on membership of some lower unit was inconceivable to the Graeco-Roman world. Many of the Plebeians had no clans; they could not, therefore, be made members of the three primitive tribes,^[268] and when the change was first mooted, it was, probably for the same reason, thought impossible to make them members of the curiae.^[269] New tribes must be invented which should include the whole community. The chief burden of taxation, now imposed equally on all classes, was to lie on land. What more natural than that the tribes should be territorial divisions, so defined as to include all the territory held in ownership by the Roman people? It is established that the tribes, which are specially described as local,^[270] contained only that land which was subject to quiritarian ownership,^[271] and from this fact the deduction has been drawn that all land subject to quiritarian ownership was included in the tribes. As the Servian tribes were believed only to have comprised the city itself, as enclosed by the Servian walls,^[272] this view leads to the startling conclusion that no land was held in private ownership outside the city, as its limits were fixed by Servius—that the land outside, so far as it was not ager publicus, was held by some larger corporation such as the gens.^[273] But such a conclusion is most improbable; it was the evolution of private ownership which had created the rich Plebeian, who had often no clan and could not hold in common with others, and such a holder was the least likely man in the world to have land in or near the city, even as its limits were fixed by Servius.

Consequently if, as seems to have been the case, the tribes did include all land-owners, they must have extended far beyond the bounds of the city. Our authorities knew them at a time when their names indeed survived, but when they had become strictly divisions of the city, by the complete separation of the country from the urban tribes. If we believe in the urban character of the four original tribus, we must accept the clearly expressed but generally discredited belief preserved by Dionysius that besides these four tribes, which comprehended only the city, Servius established twenty-six others which took in the country districts.^[274]

The view that the four tribes^[275] comprised the country districts is preferable, and is not incompatible with the fact that they certainly designated parts of the city, nor even with the possibility of their having been engrafted in some way on the older divisions of the Ramnes, Tities, and Luceres.^[276] Local creations of an artificial character, independent of juxtaposition, are not unknown in early legislations; they are found in the almost contemporary work of Cleisthenes of Athens. But even this hypothesis is unnecessary; each tribe may have stretched continuously with fairly definite boundaries beyond the city walls. The country portions of these tribes were for a moment wholly lost by the disastrous wars which followed the expulsion of the kings, and when the ager Romanus was again regained, a new organisation was adopted The territory outside the walls was parcelled out into country tribes,^[277] and these grew in number as Rome's conquests spread. The four Servian tribe-names were kept as designations only of regions within the city.

Although the tribes were divisions of the land, and individuals were registered in that tribe in which their land-allotment lay,^[278] there is no good reason for accepting the current belief that the landless citizen was not enrolled in a tribe.^[279] It has generally been assumed that the only object of the Servian tribes was to furnish a system of registration for taxation and the military levy. If this was the case, and we believe that these burdens were imposed only on landed property, it follows as a consequence that only holders of land were tribules. But there is no evidence that their scope was so limited. They appear to be divisions of the populus Romanus, and the disinherited or ruined Patrician who has lost his land is still a member of that populus. The tribe to which a landless man belonged would depend upon his domicile; it is a man's local position in a tribe, not the land he holds in it, which is given as a criterion of his membership and of the political rights which it subsequently conferred.^[280]

The system of registration, which was the central idea of the Servian reforms, was essentially military. It recognised only those persons who were qualified for service by wealth, regarded them as forming an army (exercitus), and divided this army into its two branches of infantry and cavalry. This military organisation recognised one primary and two secondary principles as the basis of classification; the first was wealth, the second age, the third took the form of a subdivision for strategic purposes, the military unit employed being the "hundred" (centuria).

For the moment we may overlook the cavalry and fix our attention on the bulk of the citizens who form the infantry. These are split up into five divisions, which were at a later period called classes. The basis of division was wealth, and the crucial question is "what kind of wealth?" It is almost certain that it could not have been wealth reckoned in money. Although Rome was a seaport and a trading state, it is doubtful whether even the old libral as, which was used as a medium of exchange by weight, was in current use at this time;^[281] and therefore the detailed accounts given of the money valuations by which the classes were fixed must refer to a later period in the history of this organisation. The alternative that has been suggested is land.^[282] There would be no difficulty in accepting this substitute, paralleled as it is by the similar organisation of Solon, were it not that the hypothesis ignores sources of wealth which the earliest Roman law seems to have classed with land, i.e. slaves and domesticated beasts. These res mancipi are as much the object of quiritarian ownership as land, and they may exist without it. A man might own no land and yet be rich in cattle and sheep which he drove on the ager publicus, or in slaves engaged in productive handicrafts,^[283] and the state was interested in all that was duly owned and was properly the subject of assessment (res censui censendo);^[284] the Servian census must have been based on res mancipi, and to a certain degree it was a census based on currency, for cattle (pecus) were recognised as a medium of exchange (pecunia).

On the basis of such a census five classes were distinguished; the census of each, in terms of the later assessment, which was probably expressed in asses sextantarii, being respectively 100,000, 75,000, 50,000, 25,000, 11,000 asses.

Each of these divisions was subdivided into two with reference to age, the juniores (from eighteen to forty-five) being the effective fighting force, the seniores (forty-five to sixty) the home defence. The final division is into the military unit, the century (centuria), consisting nominally of a hundred men. This was the minimum strength of the lowest unit, but the census list did not represent the effective fighting force of the legion organised for battle, but the numbers qualified for service; consequently the centuries of a particular class were raised to the quota required to include all the members of that class. The numerical proportion of the centuries of the different classes to one another is very striking. The centuries of the first class (eighty in number) are almost equal to those of the four other classes put together (collectively ninety in number). If this table exhibits the real proportion of social classes to one another, it would show a wonderfully equal distribution of land in the state, one so equal as to cause most of the landholders to be placed in the same class, for the list would mainly represent holders of land (the other res mancipi not being usually divorced from its possession). But the proportions of the classes may only show that the centuries of richer citizens were still regarded as forming the more permanent force, the other divisions, not much more numerous though drawn from a larger population, being merely supplementary. We know that members of the first class were more perfectly equipped,^[285] and the fact of their being the main strength of the army would be proved if it were true that this class alone was originally classis ("the line") and that all the others were infra classem.^[286]

As will be seen from the accompanying table of the census, the mass of citizens whose property fell below that of the lowest class was not wholly unprovided for. They were organised, according to Livy, into six, according to Dionysius into five, centuries. Some of these were composed of professional persons, whose services were indispensable to an army, and who were, perhaps, members of the trade guilds (collegia) which are said to have existed in the regal period.^[287] Such were the carpenters (fabri) who formed two centuries, and the horn-blowers and trumpeters (cornicines and tibicines) who formed one each.

THE SERVIAN CLASSIFICATION

The Cavalry

18 centuries, with no fixed property qualification.

The Infantry

1st Classis—100,000 asses (Livy and Dionysius),^[288] 120,000 asses (Pliny and Festus).^[289]
       Seniores, 40 cent. } 80
       Juniores, 40 cent. }

2nd Classis—75,000 asses (Liv. and Dionys.).
       Seniores, 10 cent. } 20
       Juniores, 10 cent. }

3rd Classis—50,000 asses (Liv. and Dionys.).
       Seniores, 10 cent. } 20
       Juniores, 10 cent. }

4th Classis—25,000 asses.
       Seniores, 10 cent. } 20
       Juniores, 10 cent. }

5th Classis—11,000 asses (Liv.), 12,500 (Dionys. 12-1/2 minae).
       Seniores, 15 cent. } 30
       Juniores, 15 cent. }
     Fabri—2 cent. (voting with 1st class, Liv.; }
         with 2nd class, Dionys.) } 6 cent. (Liv.).
     Accensi, cornicines, tibicines, 3 cent. (Liv.), 2 }
         cent. (Dionys.) (voting with 4th class, Dionys.). } 5 cent. (Dionys.).
     Capite censi, 1 cent. }

Total, 193 centuries (Dionys.), 194 (Liv.).

 

THE CENSUS

As interpreted by Mommsen,^[290] who holds that the figures are given in asses sextantarii [i.e. asses of two ounces weight—1/6 of the libral as (the later sestertius)].

		The older as (1/4 denarius)	Later (circa 269 B.C.) equivalent to 1/10 denarius
1st	Classis	40,000	100,000
2nd	"	30,000	75,000
3rd	"	20,000	50,000
4th	"	10,000	25,000
5th	"	4,400	11,000

As interpreted by Belot,^[291] who holds that the figures are given in asses librales (later sestertii).

1st	Classis	100,000
2nd	"	75,000
3rd	"	50,000
4th	"	25,000
5th	"	12,500

Another century was formed by the accensi or velati. These were men with no heavy armour, who might be enrolled as occasion required (adscripticii), or who marched to battle as light-armed troops ready at any moment to take the armour and places of the fallen legionaries.^[292] No property qualification was required for these three groups, the reason being that their place in the army did not demand it. But to these Livy and Dionysius add another unpropertied class, the century of proletarii, which included the whole mass of the people not registered in the classes.^[293] If, however, we believe in the originally military character of the organisation, there seems no place for this class which is not already filled by the accensi and velati. At a later period the accensi became a more definite body, acting as assistants to the magistrates and forming a corporation with certain immunities,^[294] and at this period the proletarii may have been recognised as the class liable to taxation, which fell below the minimum census. But they probably do not belong to the original Servian organisation.

The citizens included in the census list were collectively described as classici, and were spoken of as locupletes and assidui, the latter word probably meaning people "settled on land," "landholders," as most of those originally enrolled in the classes were.^[295] The others were the children-begetting citizens (proletarii cives). The use of the census for purposes of taxation gave other names to this class. In contrast to the assidui, who were registered on their property, they were called capite censi as being registered on their caput or mere headship of a family; and further, when the incidence of taxation extended below the minimum census, they were spoken of as aerarii, because their participation in the burdens of the state was shown only by the payment of taxes (aes). The word aerarii seems always to have denoted those outside the census list.^[296]

The cavalry was an adaptation of the old patrician corps of equites^[297] to the new conditions. The six original centuries were preserved and consisted as before of Patricians;^[298] they still bore the names of the ancient tribes, and were called respectively Titienses, Ramnes, Luceres, priores and posteriores.^[299] They continued to be known as the sex centuriae, or (after the centuries acquired voting power) the sex suffragia.^[300]

To these were added twelve new centuries (centuriae equitum), composed, like the classes, of Patricians and Plebeians. But, unlike the classes, they were not enrolled on a property qualification. This is explained by the fact that they are not a list of men qualified for service but actually in service, a standing corps selected by the king and whose expenses were largely defrayed by the state. In later times, each knight was on his entrance into the corps given the means wherewith to furnish himself with a pair of horses^[301] (aes equestre), and also a regular sum of money for their support (aes hordearium), the latter money being defrayed by unmarried women and orphans, who were possessed of property but could not by the nature of the case be rated in the census.^[302]

Each of these centuries formed a troop of one hundred men under a centurio,^[303] and these eighteen centuries of Roman knights with public horses (equites Romani equo publico) continued unaltered in numbers and (with the exception that the sex suffragia ceased to be chosen from the Patricians) in character to the end of the Republic. Although no definite census was required for the class, it was probably chosen from the first from the richest and most distinguished citizens; for its permanent existence implies leisure. The class was not divided by age into seniores and juniores, for an obvious military reason. They were all juniores, and probably young men, whose release from the centuries was granted as soon as age had impaired their efficiency for service.

This centuriate organisation seems to have little or no connexion with the four Servian tribes,^[304] beyond the accidental one that the basis of qualification was mainly land, and that all land which was private property was registered in the tribes. Its primary meaning was the assembly and registration of those liable for military service. It acquired a secondary meaning when (at what period we do not know but perhaps from its first organisation) it was used as a scheme for the collection of taxes on the registered wealth of the citizens in the classes. The act of registration (census) was a solemn religious function conducted by the king. He numbered his fighting force, saw that each warrior was in his due rank, excluded from these ranks men who were stained with sin, and then concluded the examination with a ceremony of purification (lustrum). It is only with reference to the collection of taxes imposed at this levy that the tribe would be of importance. The century was a military unit, dissolved as soon as the army was disbanded; the tribe was permanent, hence the war-tax (tributum) was perhaps collected from the first by the presidents of the tribes.^[305]

A transference of political rights from the patrician body to this new assembly was so far from being the motive of the change that it was probably never contemplated. But such a transference was from the nature of things inevitable. Apart from the general fact that a citizen army must gain the preponderance in political power, there were certain public acts which were inevitably performed from the first by the assembly of the centuries, or were very soon found to be more rapidly, easily, and appropriately performed by that assembly than by the comitia of the curiae.

Firstly, it may have been the custom for the oath of allegiance to the king, first expressed in the lex curiata,^[306] to have been renewed at every taking of the census. This expression of allegiance, asked for by the magistrate, was now a lex centuriata.^[307]

Secondly, most of the popular utterances or leges of early Rome must have referred to military matters, and convenience, if not a sense of consistency, must soon have dictated that they should be pronounced by the army. The choice of officers rested with the king; but if the appointment of the higher delegates required the ratification of the people,^[308] this must soon have been given by the centuries. The regal jurisdiction which the people challenge by the provocatio is essentially military jurisdiction;^[309] and consequently the exercise of this jurisdiction, when the king allowed the appeal, must soon have been felt to belong to the army. It was to this assembly that the announcement of a proposal to declare war^[310] would most appropriately be made; it was above all by this assembly, which represented the taxpayers, that the war-tax (tributum) would most appropriately be assessed.

We cannot trace the successive steps in the acquisition of power by the centuries or its growth from an army into a comitia. They must have been the chief political changes which filled the closing years of the monarchy and the early days of the Republic; for even the abolition of monarchy itself, revolutionary as it was, was less of an alteration in the structure of the constitution than this transference of the attributes of sovereignty from one assembly to another, from a single to a mixed order. The comitia curiata was not suddenly stripped of its powers; but the organising genius of a single supreme magistrate had prepared the way for a change, which was a prototype of the gradual insensible revolutions through which Rome was to pass.

The change which closes the history of this period, although not so radical, was far more sudden and violent. The monarchy itself was overthrown. History has tried to invest this revolution with all the legal grounds and legal forms which it could summon to its assistance. Servius had had it in his mind to complete his democratic work by laying down the full imperium;^[311] and Tarquin the Proud, the last of the great Etruscan line, had broken through the constitutional usages of the monarchy^[312] and had ruled without challenging the allegiance of the people.^[313] That there was some fearful abuse of the kingly power, typified in the associations that gathered round the words rex and regnum and in the oath which made any one who aspired to monarchy an outlaw,^[314] we may without hesitation allow; for Rome, as shown by the power she continued to entrust to her magistrates, had not outgrown the idea of royalty. But there was no constitutional mode of deposing a king. The auspices had returned to the fathers in unhallowed fashion, and the war waged by Tarquin and Etruria is a war for the maintenance of the principle of divine right. But yet Rome held that the divinity of the magistracy still remained; the auspices again left the fathers' hands and were conferred on two citizens chosen from the patres.^[315]

---

1. Pagus (connected etymologically with [Greek: pêgnymi], pago, pango) implies the idea of "foundation" or "settlement."
2. Cf. Liv. ii. 62 "Incendiis deinde non villarum modo, sed etiam vicorum, quibus frequenter habitabatur, Sabini exciti."
3. So Servius Tullius is said, according to one account, to have divided the territory of Rome into twenty-six pagi. Pagus is [Greek: dêmos] in Greek (Festus p. 72), but this proves little as to its origin; it is the pagus as part of a state that is thus translated. The [Greek: dêmos] or [Greek: damos] in Greece had often been (as in Elis) a self-existent community.]
4. Liv. ii. 16. Yet even here the Claudia gens is represented as expelled from a civitas.
5. The ancients derived Palatine from the balare or palare of cattle (Festus p. 220) or from the shepherd's god Pales (Solinus i. 15). It is perhaps derived from the root pa (pasco). See O. Gilbert Geschichte u. Topographie der Stadt Rom in Altertum i. p. 17.
6. Tac. Ann. xii. 24.
7. This tendency is best exhibited in Richter's map showing the extension of Rome (Baumeister Denkmäler art. "Rom" Karte v.).
8. Festus pp. 340, 341. See Gilbert Topographie i. pp. 38, 162.
9. Varro L.L. v. 45 ff.
10. i.e. in the four city tribes—Palatina (Palatine, Cermalus, Velia), Esquilina (Oppius, Cispius, Fagutal), Suburana or Sucusana (Coelius, Subura), Collina (Quirinalis, Viminalis—a region outside the old Septimontium). See Belot Histoire des Chevaliers Romains i. p. 401.
11. The Sabine origin of the Tities rested perhaps on the Sabine sacra of the sodales Titii (Tac. Ann. i. 54). Cf. the Thracian origin ascribed to the Eumolpidae at Athens on account of the character of their cult.
12. Cic. de Rep. ii. 8, 14 "populumque et suo et Tatii nomine et Lucumonis, qui Romuli socius in Sabino proelio occiderat, in tribus tris . . . discripserat."
13. e.g. the manner in which the Ionic tribe-names were imposed at Athens after their primitive signification had been lost.
14. Cf. Niese Grundriss der röm. Gesch. pp. 20 sq.
15. Cincius ap. Festum p. 241 "Patricios Cincius ait in libro de comitiis eos appellari solitos, qui nunc ingenui vocentur." Cf. Liv. x. 8 (300 B.C.; from the speech of Decius Mus) § 9 "Semper ista audita sunt eadem, penes vos auspicia esse, vos solos gentem habere, vos solos justum imperium et auspicium domi militiaeque"; § 10 "en unquam fando audistis, patricios primo esse factos non de coelo demissos sed qui patrem ciere possent, id est nihil ultra quam ingenuos?"
16. Mr. Strachan-Davidson remarks (Smith Dict. of Antiq. ii. p. 354) that, on the evolution of the rights of the plebeians, these too should have been patricii, but that the word patricius survived as a "token of an arrested development."
17. Plebs is connected with the root which appears in compleo, impleo, [Greek: plêthos].
18. Liv. i. 28 "populum omnem Albanum Romam traducere in animo est, civitatem dare plebi, primores in patres legere." Dionysius (ii. 35) represents the people of Caenina and Antemnae as being, after their subjection, enrolled [Greek: eis phylas kai phratras
19. Cf. Dionysius' account of Romulus' institution of clientship (ii. 9 [Greek: parakatathêkas de edôke tois patrikiois tous dêmotikous, epitrepsas hekastô . . . on autos ebouleto nemein prostatên . . . patrôneian onomasas tên prostasian
20. The jus commercii has been read into the relations of Rome with Carthage as depicted in Polybius' second treaty [Polyb. iii. 24, 12 [Greek: en Sikelia, hês Karchêdonioi eparchousi, kai en Karchêdoni panta kai poieitô]) (the Roman) [Greek: hosa kai tô politê] (the Carthaginian) [Greek: exestin]]. But jurisdiction here may have been the work of some international court, and the jus commercii, without the jus exulandi, would hardly have made a foreign immigrant a citizen of Rome.]*
21. Cicero shows that there was a controversy whether applicatio was consistent with exilium (de Orat. i. 39, 177), "Quid? quod item in centumvirali judicio certatum esse accepimus, qui Romam in exilium venisset, cui Romae exulare jus esset, si se ad aliquem quasi patronum applicavisset intestatoque esset mortuus, nonne in ea causa jus applicationis, obscurum sane et ignotum, patefactum in judicio atque illustratum est a patrono?"
22. Zonaras vii. 15. P. Clodius first tried this method; when it was opposed he resorted to the artifice of adoption. Courtly writers imagined a transitio for the plebeian Octavii, Suet. Aug. 2 "Ea gens a Tarquinio Prisco rege inter minores gentes adlecta . . . mox a Servio Tullio in patricias transducta, procedente tempore ad plebem se contulit."
23. Liv. ii. 16 (504 B.C.) "Attus Clausus (driven out from Regillum) magna clientium comitatus manu Romam transfugit. His civitas data agerque trans Anienem . . . Appius inter patres (i.e. the Senate) lectus haud ita multo post in principum dignationem pervenit." Cf. Suet. Tib. 1.
24. Savigny Recht des Besitzes (7th ed.) p. 202. On the general condition of the client see Ihering Geist des röm. Rechts i. p. 237.
25. Dionys. ii. 9, 10.
26. [Greek: exêgeisthai ta dikaia . . . dikas lagchanein . . . tois egkalousin hypechein] (Dionys. ii. 10). If representation in the civil courts is meant, it must have resembled that of the paterfamilias, who sues in his own right, for procuratory was unknown in early Roman procedure (Just. Inst. iv. 10 "cum olim in usu fuisset alterius nomine agere non posse").
27. Verg. Aen. vi. 609 "fraus innexa clienti." Cf. Servius ad loc.
28. Gell. v. 13 "Conveniebat . . . ex moribus populi Romani primum juxta parentes locum tenere pupillos debere, fidei tutelaeque nostrae creditos; secundum eos proximum locum clientes habere, qui sese itidem in fidem patrociniumque nostrum dediderunt." The third place was filled by hospites, the fourth by cognati and adfines.
29. Liv. ii. 56.
30. Suet. Claud. 24 "(Claudius) Appium Caecum censorem (312 B.C.) . . . libertinorum filios in senatum allegisse docuit; ignarus temporibus Appii (312-280 B.C.) et deinceps aliquamdiu 'libertinos' dictos, non ipsos qui manu emitterentur, sed ingenuos ex his procreates."
31. Plut. Mar. 5.
32. Festus p. 94 "gentilis dicitur ex eodem genere ortus et (?) is qui simili nomine appellatur."
33. p. 5.
34. Cic. Top. 6, 29 "Gentiles sunt inter se, qui eodem nomine sunt; qui ab ingenuis oriundi sunt; quorum majorum nemo servitutem servivit; qui capite non sunt deminuti."
35. The test is illustrated by a controversy between the patrician Claudii and the plebeian Claudii Marcelli, Cic. de Orat. i. 39, 176 "Quid? qua de re inter Marcellos et Claudios patricios centumviri judicarunt, cum Marcelli ab liberti filio stirpe, Claudii patricii ejusdem hominis hereditatem gente ad se rediisse dicerent, nonne in ea causa fuit oratoribus de toto stirpis et gentilitatis jure dicendum." Suetonius (Tib. 1) says of the clan of the Claudii Marcelli, as compared with their patrician namesakes, "nec potentia minor nec dignitate."
36. Liv. x. 8, quoted p. 5.
37. p. 5.
38. Cic. in Verr. i. 45, 115 "Minucius quidam mortuus est ante istum (Verrem) praetorem; ejus testamentum erat nullum. Lege hereditas ad gentem Minuciam veniebat"; de Leg. ii. 22, 55 "Jam tanta religio est sepulchrorum, ut extra sacra et gentem inferri fas negent esse; idque apud majores nostros A. Torquatus in gente Popilia judicavit."
39. The theory of the artificial origin of the gens is based on the symmetrical figures given by tradition. The full numbers of the early gentes are given as 300; these are symmetrically divided, ten into each of the thirty curiae, as the curiae are divided into the three original tribes. Hence Niebuhr (Hist. Rome i. p. 319) says, "The numerical scale of the gentes is an irrefragable proof that they were not more ancient than the constitution, but corporations formed by a legislator in harmony with the rest of his scheme."
40. Niebuhr op. cit. p. 333; from Laelius Felix (ap. Gell. xv. 27) "Cum ex generibus hominum suffragium feratur, curiata comitia esse" (genus because the assembly came to include Plebeians, some of whom had no gentes).
41. Cic. ad Fam. ix. 21, 2.
42. Momms. Staatsr. iii. p. 31.
43. Cic. de Rep. ii. 20, 35 "(L. Tarquinius) duplicavit illum pristinum patrum numerum; et antiquos patres majorum gentium appellavit, quos priores sententiam rogabat; a se ascitos minorum"; Liv. i. 35 "(Tarquinius) centum in patres legit; qui deinde minorum gentium sunt appellati."
44. p. 3.
45. The gentes minores are sometimes identified with the gentes of the last admitted of these tribes, the Luceres (Ortolan Hist. of Roman Law i. § 33).
46. Momms. Hist. of Rome bk. i. ch. v.
47. Liv. i. 30; Dionys. iii. 29.
48. Dionys. ii. 46.
49. Liv. iv. 4 "nobilitatem vestram per cooptationem in patres habetis"; Suet. Tib. 1 "gens Claudia in patricios cooptata." So Servius and Numa are said to have been transferred by the Populus from the ranks of the [Greek: dêmos] to those of the [Greek: patrikioi].
50. As is implied in Suet. Aug. 2 (quoted p. 7).
51. Dionys. v. 13.
52. Liv. ii. 2 "Brutus ad populum tulit ut omnes Tarquiniae gentis exsules essent"; Varro ap. Non. p. 222 "omnes Tarquinios ejicerent, ne quam reditionis per gentilitatem spem haberent."
53. Suet Tib. 1 "Patricia gens Claudia . . . orta est ex Regillis, oppido Sabinorum . . . post reges exactos sexto fere anno, in patricias cooptata. Agrum insuper trans Anienem clientibus, locumque sibi ad sepulturam sub Capitolio, publice accepit." Cf. Liv. ii. 16 (cited p. 7).
54. Dionys. v. 40.
55. ib. ii. 7.
56. Cic. de Rep. ii. 14, 26.
57. Momms. Staatsr. iii. p. 23.
58. Varro R.R. i. 10, 2; cf. Plin. H.N. xix. 4.
59. Festus p. 53 "Centuriatus ager in ducena jugera definitus, quia Romulus centenis civibus ducena jugera tribuit."
60. It is possible, however, that manus in such expressions is merely the symbol of power.
61. "Si adgnatus nec escit gentiles familiam habento."
62. Suet. Caes. 1, of Caesar's refusal to divorce Cornelia; as a consequence he was "uxoris dote, et gentiliciis haereditatibus multatus."
63. p. 10.
64. "Si furiosus escit, ast ei custos nec escit, adgnatum gentiliumque in eo pecuniaque ejus potestas esto."
65. Cic. pro Domo 13, 35.
66. Suet. Tib. 1.
67. Cic. Phil. i. 13, 32.
68. Maine Ancient Law pp. 6, 27.
69. Cic. pro Domo 13, 35 "Quas adoptiones (i.e. legal ones) . . . hereditates nominis, pecuniae, sacrorum secutae sunt. Tu . . . neque amissis sacris paternis in haec adoptiva venisti. Ita perturbatis sacris, contaminatis gentibus, et quam deseruisti et quam polluisti, etc."; de Leg. ii. 19, 48 "haec jura pontificum auctoritate consecuta sunt, ut ne morte patris familias sacrorum memoria occideret, iis essent ea adjuncta, ad quos ejusdem morte pecunia venerit." The transmission was thus a part of jus pontificium, not of jus civile. Cf. Serv. in Aen. ii. 156.
70. Cf. the story of Verginia in Liv. x. 23 (296 B.C.) "Verginiam Auli filiam patriciam plebeio nuptam L. Volumnio consuli matronae, quod e patribus enupsisset, sacris arcuerant." She then founds an altar to "Pudicitia plebeia," in imitation of that to "Pudicitia patricia."
71. [Greek: andri koinônon hapantôn chrêmatôn te kai hierôn] (Dionys. ii. 25).
72. Plut. Qu. Rom. 30 [Greek: Dia ti tên nymphên eisagontes legein keleuousin; Hopou sy Gaios, egô Gaia?
73. e.g. a testamentary adoption by a public act in the comitia calata.
74. Familia is etymologically a "household." Cf. Sanskr. dhâ "to settle," dhâman "settlement."
75. The original term was, perhaps, manus signifying "power" (see p. 32), but this word came in course of time to be restricted to the control over the wife who had become a member of the familia.
76. Plutarch (Rom. 22) quotes a law of Romulus allowing the divorce of the wife [Greek: epi pharmakeia teknôn ê kleidôn hypobolê kai moicheutheisan].
77. Dionys. ii. 15.
78. This jus noxae dationis first disappears finally in the law of Justinian (Inst. iv. 8, 7; Dig. 43, 29, 3, 4). Before its abolition a modification had been introduced by the rule that, when the child had acquired an equivalent for the damage he had caused (quantum damni dedit), the owner should be forced to manumit him.
79. Even by Constantine the sale of new-born children (sanguinolenti) was permitted, but only propter nimiam paupertatem (Cod. 4, 43, 2).
80. "Pater si filium ter venum duuit, filius a patre liber esto." It has been thought, however, that by the time of the Twelve Tables the sale had become merely fictitious.
81. This vindicatio filii was in later Roman law replaced by a writ issued by the praetor (interdictum de liberis exhibendis), the effects of which were like that of Habeas Corpus.
82. Dionys. ii. 26, 27.
83. Gell. v. 19, 9.
84. Hadrian punished the killing of a son with deportation (Dig. 48, 8, 5); Constantine declared it parricidium.
85. Instances are given in Voigt (Zwölf Tafeln ii 94). M. Fabius Buteo (223-218 B.C.) put his son to death as a punishment for theft (Oros. iv. 13), and a certain Pontius Aufidianus his daughter for immorality (Val. Max. vi. 1, 3); there are also instances of banishment inflicted by the father, presumably under the threat of inflicting the death penalty if the children returned.
86. We may cite two instances lying at the very extremes of Republican history, the semi-mythical one of L. Junius Brutus in 509 (Plut. Popl. 6, 7), and the historical one of A. Fulvius Nobilior, who in 63 B.C. put his son to death for partnership in the Catilinarian conspiracy (Sall. Cat. 39).
87. Modern writers are inclined to reject the appeal made to the sexus fragilitas by the Roman jurists, and to believe that the original motive lay in the desire to keep the property of the family together (cf. Czyhlarz Inst. p. 275); but, as this motive did not operate in the case of sons, it is difficult to see why it should have done so in the case of the wife or daughters, apart from a belief in the incapability of women to defend their own claims. For the motive underlying the tutela mulierum see p. 31.
88. p. 16.
89. Ulp. Reg. 12, 2 "Lex xii. Tab. prodigum, cui bonis interdictum est, in curatione jubet esse agnatorum"; cf. Ulp. in Dig. 27, 10, 1 "Lege xii. Tab. prodigo interdicitur bonorum suorum administratio." There can be no doubt of the antiquity of this interdiction of the "prodigus," proceeding as it does from the theory that the property belongs to the family rather than to its head; but from what authority it proceeded in the earliest period of Roman history is uncertain.
90. See the account in Val. Max. v. 8, 2 (p. 23) "adhibito propinquoram et amicoram consilio."
91. Val. Max. ii. 9, 2 "M. Val. Maximus et C. Junius Brutus Bubulcus censores . . . L. Annium senatu moverunt, quod, quam virginem in matrimonium duxerat, repudiasset, nullo amicorum in consilio adhibito." See Greenidge Infamia in Roman Law p. 65.
92. Dionys. ii. 26, 27.
93. For the alleged lateness of divorce at Rome, even after the Twelve Tables had freely permitted it, see Gell. iv. 3 (Infamia in Roman Law p. 65).
94. Dig. i. 6, 9 (Pomponius) "filius familias in publicis causis loco patris familias habetur, veluti ut magistratum gerat, ut tutor detur." Compare the story in Liv. xxiv. 44 (213 B.C.) "Pater filio legatus ad Suessulam in castra venit"—the consul went to meet him; and the old man on horseback passed eleven lictors—"ut consul animadvertere proximum lictorem jussit et is, ut descenderet ex equo, inclamavit, tum demum desiliens, 'Experiri,' inquit, 'volui, fili, satin' scires consulem te esse." Cf. Gell. ii. 2.
95. Festus s.v. Duicensus (p. 66) "dicebatur cum altero, id est cum filio census."
96. Probably by a mancipatio fiduciae causa, one, i.e., by which he had formally transferred (mancipavit) his body on the condition that it was not to be seized for a certain time, and that the transfer should be dissolved (solutio nexi) if the debt were paid within this time.
97. Ulpian Reg. 19, 1; Gaius ii. 15. Res mancipi at a later period included lands in Italy (with their servitudes), slaves and quadrupedes quae dorso collove domantur. In the expression familia pecuniaque, "familia" probably denotes the slaves. Pierron (Du sens des mots familia pecuniaque) has shown the theory of Ihering and Cuq, that the former denotes res mancipi, the latter res nec mancipi, to be untenable.
98. Plut. Cato maj. 3.
99. Plut. Cor. 24.
100. See the section on the censor.
101. Paulus in Dig. 28, 2, 11 "in suis heredibus evidentius apparet continuationem dominii eo rem perducere, ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui etiam vivo patre quodammodo domini existimantur." What the filius familias acquires by the death of his father is merely libera bonorum administratio.
102. Gell. i. 9 "Tamquam illud fuit anticum consortium, quod jure atque verbo Romano appellabatur 'ercto non cito'"; Serv. in Aen. viii. 642 "'citae' divisae, ut est in jure 'ercto non cito,' id est patrimonis vel hereditate non divisa."
103. Gell. xv. 27 "Isdem comitiis, quae 'calata' appellari diximus, et sacrorum detestatio et testamenta fieri solebant. Tria enim genera testamentorum fuisse accepimus; unum, quod calatis comitiis in populi contione fieret, alterum in procinctu, cum viri ad proelium faciendum in aciem vocabantur, tertium per familiae emancipationem, cui aes et libra adhiberetur"; Gaius ii. 101 "aut calatis comitiis faciebant, quae comitia bis in anno testamentis faciendis destinata erant; aut in procinctu, id est, cum belli causa arma sumebant." Cf. Ulpian (Reg. 20, 2) on the testamentorum genera tria.
104. This testament is never associated with adrogation, although this took place before the same assembly.
105. In Gell. (cited n. 1) it is associated with the sacrorum detestatio (see p. 16), and perhaps this was its main object. The pontiffs and people had to be satisfied that the sacra would be continued and the family not become extinct.
106. See the passages of Gellius, Gaius, and Ulpian, cited n. 1, and compare Festus p. 225 "procincta classis dicebatur, cum exercitus cinctus erat Gabino cinctu confestim pugnaturus." In the second century B.C. we find some kind of military testament, called by this name, made by Roman soldiers in Spain (Velleius ii. 5 "facientibus . . . omnibus in procinctu testamenta, velut ad certam mortem eundum foret").
107. Gaius ii. 102 "Qui neque calatis comitiis, neque in procinctu testamentum fecerat, is, si subita morte urguebatur, amico familiam suam, id est, patrimonium suum mancipio dabat, eumque rogabat, quod cuique post mortem suam dari vellet."
108. Gaius ii. 104 "Familiam pecuniamque tuam endo mandatela tutela custodelaque mea, quo tu jure testamentum facere possis secundum legem publicam, hoc aere esto mihi empta." For familia pecuniaque see p. 24.
109. The stipulation that it was a trust would still have taken the patrimony wholly from the testator during the remainder of his life. We hear nothing about the formal reservation of a life interest.
110. "Cum nexum faciet mancipiumque, uti lingua nuncupassit ita jus esto."
111. Gaius ii. 104 "Haec ita, ut in his tabulis cerisque scripta sunt, ita do, ita lego, ita testor, itaque vos, quirites, testimonium mihi perhibetote."
112. Plut. Comp. Lyc. c. Num. 4 [Greek: legetai goun pote gynaikos eipousês dikên idian en agora pempsai ten synklêton eis theou, pynthanomenên, tinos hara tê polei sêmeion ein to gegenêmenon
113. Such as the lex Claudia, which abolished the legitima tutela agnatorum (Gaius i. 171).
114. A trace of the old disability survives in the prohibition of advocacy to women; the praetors declined to grant them a formula on behalf of others. A certain Carfania (Gaia Afrania) "inverecunde postulans et magistratum inquietans" is said to have been the occasion of this rule (Ulp. in Dig. 3, 11, 5).
115. This usage was preserved in the praetor's edict; he spoke of "qui quaeve . . . capite deminuti deminutaeve esse dicentur" (Dig. 4, 5, 2, 1), meaning what the later jurists call cap. dem. minima, i.e. loss of familia.
116. See Eisele "Zur Natur u. Geschichte der capitis deminutio " in Beiträge zur Römischen Rechtsgeschichte p. 160. He combats the counter view that capitis dem. meant an annihilation of personality. Mommsen (Staatsr. iii. 8) takes this latter view—a natural result of juristic refinement, but a conception that would have been quite unintelligible to a primitive community.
117. Gaius i. 162 "Minima capitis deminutio est, cum et civitas et libertas retinetur, sed status hominis commutator; quod accidit in his qui adoptantur, item in his quae coemptionem faciunt, et in his qui mancipio dantur, quique ex mancipatione manumittuntur."
118. Liv. i. 32.
119. Gell. i. 12, 14; x. 24, 3.
120. Mommsen (Staatsr. iii. 3, n. 2) connects the word with populari. The magister populi (i.e. the dictator) is master of the infantry host.
121. Varro ap. Dionys. ii 48. Other views derived it from the Sabine town Cures (Varro L.L. v. 51; Strabo v. 3, 1) or connected it with Curia (Lange Röm. Alt. i. p. 89; Belot Hist. d. Chev. Rom. i. p. 312).
122. Suet. Jul. 70.
123. Capito ap. Gell. i. 20 "Plebes . . . in qua gentes civium patriciae non insunt: plebiscitum . . . est . . . lex, quam plebes, non populus, accipit." Cf. Festus p. 233.
124. According to the primitive conception private are dependent on public rights; see p. 31. But the growth of the Plebs, and alliances with other states, had effected many modifications in this conception.
125. Nonius, s.v. plebitas, p. 101 "Hemina in annalibus, 'Quicumque propter plebitatem agro publico ejecti sunt.'" Cf. Liv. iv. 48.
126. p. 17.
127. Cic. de Leg. ii. 13, 32 (on the question whether auspices were merely directed to the utilitas of the state, or formed a true method of divination) "si enim deos esse concedimus . . . et eosdem hominum consulere generi, et posse nobis signa rerum futurarum ostendere; non video cur esse divinationem negem."
128. Cic. de Div. ii. 33, 70 (the difficulty of answering for results may appeal to a Marsus augur but not to a Roman) "non enim sumus ii nos augures, qui avium reliquorumve signorum observatione futura dicamus." Cf. i. 58, 132 "Non habeo . . . nauci Marsum augurem, non vicanos haruspices, non de circo astrologos, non Isiacos conjectores, non interpretes somniorum. Non enim sunt ii aut scientia aut arte divini."
129. See the treatment of the auspices in the section on the magistracy (p. 163).
130. Strangely enough the Greek belief in oracular or prophetic power did not lead to the conception of a priesthood set apart from the people. But the Greek science of divination, though associated with oracles and prophecy, did not aim much higher than the Roman. Its object was generally to win approval for a contemplated course of action.
131. Cic. de Leg. ii. 8, 21 "Quaeque augur injusta, nefasta, vitiosa, dira defixerit, inrita infectaque sunto; quique non paruerit, capital esto."
132. Serv. ad Aen. vi. 190 "auguria aut oblativa sunt, quae non poscuntur, aut impetrativa, quae optata veniunt." For the categories of these two kinds of auspices see the discussion of the auspices in the section on the magistracy (p. 162).
133. Liv. vi. 41 "Auspiciis hanc urbem conditam esse, auspiciis bello ac pace, domi militiaeque omnia geri, quis est qui ignoret?"
134. This view is most fully expressed in the formalities of the interregnum. See the section which treats of this institution (p. 147).
135. Cic. de Div. i. 16, 28 "Nihil fere quondam majoris rei, nisi auspicato, ne privatim quidem, gerebatur: quod etiam nunc nuptiarum auspices declarant, qui, re omissa, nomen tantum tenent." In i. 17, 31 we have the story of Attus Navius taking auspices by aves in a private matter. Cf. Liv. vi. 41.
136. Cic. de Div. i. 16, 28 (see last note); Suet. Claud. 26; Tac. Ann. xi. 27.
137. Liv. iv. 2 "Quas quantasque res C. Canuleium adgressum? Conluvionem gentium, perturbationem auspiciorum publicorum privatorumque adferre." Yet this passage has only an indirect reference to the matrimonial auspicia. The argument is that intermarriage would cause the pure Patriciate to disappear, and with it the general right of taking auspicia impetrativa.
138. Cic. de Div. ii. 36, 76 "a populo auspicia accepta habemus." The relation of auspicia habere to the spectio is that the former denotes the abstract right of questioning the gods, the latter its exercise in a particular case (Momms. Staatsr. i. 89 n. 3). The specification by the magistrate of the signs which he wished to see was known as legum dictio (Serv. ad Aen. iii. 89; cf. p. 43 n. 2).
139. A similar confusion was at an earlier period introduced with reference to the givers of the auspices. They are said to be given by the people (Cic. de Div. ii. 36, 76; p. 39), but the great bulk of the people (i.e. the Plebs) did not possess them.
140. p. 3.
141. Dionys. iv. 14 (Servius Tullius) [Greek: tas katagraphas tôn stratiôtôn kai tas eispraxeis tôn chrêmatôn . . . ouketi kata tas treis phylas tas genikas, hôs proteron, k.t.l.] Varro L.L. v. 181 "Tributum dictum a tribubus, quod ea pecunia, quae populo imperata erat, tributim a singulis pro portione census exigebatur."
142. From legere, Varro L.L. v. 87.
143. Varro L.L. v. 89 "milites quod trium milium primo legio fiebat, ac singulae tribus Titiensium, Ramnium, Lucerum milia singula militum mittebant."
144. ib. 81 "tribuni militum quod terni tribus tribubus Ramnium, Lucerum, Titium olim ad exercitum mittebantur." On the other hand, Servius (in Aen. v. 560) says that the tribuni were so called because they presided over one-third of the whole force.
145. p. 12.
146. Liv. i. 36.
147. e.g. Calabra, Foriensis, Veliensis. Other names (such as Titia) may be eponymous.
148. Festus p. 62 "curionia sacra, quae in curiis fiebant"; p. 64 "curiales flamines curiarum sacerdotes."
149. ib. p. 49 (s.v. curia) "locus est, ubi publicas curas gerebant."
150. See note 1.
151. Festus p. 126; Liv. xxvii. 8.
152. Festus p. 55 "Celeres antiqui dixerunt, quos nunc equites dicimus . . . qui primitus electi fuerunt ex singulis curiis deni, ideoque omnino trecenti fuere."
153. Liv. i. 26; Cic. de Rep. ii. 31, 54.
154. Dionys. ii. 14.
155. "Generale jussum" (Capito ap. Gell. x. 20).
156. Lex is probably connected etymologically with the German legen (Gothic lagjan) as [Greek: thesmos] with [Greek: tithêmi].]
157. In business we have leges locationis, venditionis, in the structure of corporations a lex collegii. On the other hand, in the legum dictio of augury, which is the statement of the mode of the answer of the gods to a request, in the lex data given to individuals by a magistrate (e.g. the leges censoriae) or granted by Rome as a charter to a subject state, there seems to be the idea of a purely one-sided ordinance.
158. Dionys. iii. 62; Cic. de Rep. ii. 17, 31.
159. Tac. Ann. xi. 22; Ulp. in Dig. i. 13.
160. Varro L.L. v. 80 "Praetor dictus, qui praeiret jure et exercitu." But the title is, perhaps, a purely military one (prae-itor, "the man who goes before the army").
161. Festus p. 198 "in magistro populi faciendo, qui vulgo Dictator appellatur."
162. Cic. de Rep. i. 26, 42. Regnum denotes the position of the king as head of the state (ib. ii. 27), but not the regal power.
163. Lictor is probably derived from licere. For other attempts at derivation see Gell. xii. 8. They summon, not only to the assembly, but also to the courts, and are thus the chief mark of jurisdiction and coercive power (coercitio). The individual curiae were probably summoned by the thirty lictores curiatii, who survive into the later Republic. See Momms. Staatsr. i. p. 392. For the number of lictors that accompanied the king see Cic. de Rep. ii. 17, 31; Liv. i. 8; Dionys. ii. 29; iii. 61, 62.
164. Serv. in Aen. vii. 188, 612; xi. 334; Ov. Fast. ii. 503.
165. Cic. de Fin. ii. 21, 69; Dionys. iii. 61.
166. Festus p. 49 "currules magistrates appellati sunt, quia curru vehebantur."
167. Dionys. iv. 74.
168. Festus p. 209 "Picta quae nunc toga dicitur purpurea ante vocitata est eaque erat sine pictura." It was already picta ([Greek: diachrysos]) in Polybius' time (Polyb. vi. 53).
169. Liv. i. 56.
170. "Arvi et arbusta et pascui lati atque uberes" (Cic. de Rep. v. 2, 3). Cf. Liv. ii. 5.
171. p. 8.
172. Cic. de Rep. ii. 12, 24 "Nostri illi etiam turn agrestes viderunt virtutem et sapientiam regalem, non progeniem quaeri oportere." Cf. App. B.C. i. 98.
173. Liv. i. 7 and 18.
174. Liv. i. 17; Cic. de Rep. ii. 17, 31.
175. The interregnum, though only an occasional office in the Republic, is represented as an invariable part of the procedure in the transmission of the kingly power (Liv. i. 47).
176. Dionys. v. 1; Liv. xl. 42.
177. Tac. Ann. i. 14 and 81; Dio Cass. liii. 21, 7; lviii. 20, 3.
178. Cic. de Rep. ii. 12, 23; Liv. i. 17; Dionys. ii. 57.
179. [Cic.] ad Brut. i. 5, 4.
180. Cf. Serv. in Aen. vi. 808 "Romulo mortuo cum . . . Senatus . . . regnasset per decurias."
181. Dionys. ii. 57 [Greek: diaklêrôsamenoi
182. Dionys. ii. 57 [Greek: tois lachousi deka prôtois apedôkan archein tês poleôs tên autokrator' archên]: Liv. i. 17 "decem imperitabant, unus cum insignibus imperii et lictoribus erat."
183. In the accounts of this procedure an important element is probably omitted, i.e. that each individual interrex nominated his successor. The first could not nominate the king, as he had not received the auspices in due form.
184. Mommsen (Staatsr. i. pp. 213, 214) takes a different view, arguing that the king was in every case nominated, not by the rex, but by the interrex, on the legal ground that the appointment of a successor would have been one of those "actus legitimi qui non recipiunt diem vel condicionem" (such as hereditatis aditio, tutoris datio), and which "in totum vitiantur per temporis vel condicionis adjectionem" (Papin. in Dig. 50, 17, 77). But, even in the regal period, there may have been one condition which did not vitiate such acts, i.e. death (see p. 29).
185. Liv. i. 17, 22, 32, 41, 47.
186. Cic. de Leg. Agr. ii. 10, 26; ii. 11, 28; ad Fam. i. 9, 25.
187. Cic. de Rep. ii. 13, 25 "Numam . . . qui . . . quamquam populus curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit."
188. Liv. i. 41 "Servius, praesidio firmo munitus, primus injussu populi, voluntate patrum regnavit."
189. Cic. de Rep. ii. 17, 31 "Tullum Hostilium populus regem, interrege rogante, comitiis curiatis creavit, isque de imperio suo . . . populum consuluit curiatim."
190. The last injustus dominus of Rome ruled "neque populi jussu neque auctoribus patribus" (Cic. de Rep. ii. 24, 45; Liv. i. 49).
191. Thus Romulus takes his own auspices on the Palatine (Liv. i. 6).
192. p. 39.
193. Liv. i. 18 "de se . . . deos consuli jussit."
194. Labeo ap. Gell. xv. 27, 1; Liv. xl. 42, 8.
195. Dionys. ii. 14; iv. 74; Plut. Ti. Gracch. 15.
196. Festus p. 185; Labeo ap. Gell. xv. 27; Ov. Fasti ii. 21.
197. This is shown by his sacrifices on the Kalends and on the Nones (sacra nonalia) and his offering of a ram to Janus in the regia on the Agonalia (Jan. 9) (Festus p. 10; Varro L.L. vi. 12; Ov. Fasti i. 317).
198. Festus p. 113; Macrob. i. 15, 19.
199. Liv. i. 20 "Numa Pontificem . . . Numam Marcium M. f. ex patribus legit, eique sacra omnia exscripta exsignataque attribuit, quibus hostiis, quibus diebus, ad quae templa sacra fierent, atque unde in eos suraptus pecunia erogaretur. Cetera quoque omnia publica privataque sacra Pontificis scitis subjecit, ut esset, quo consultum plebes veniret: ne quid divini juris, negligendo patrios ritus, peregrinos que adsciscendo, turbaretur, etc." But afterwards (in 449 B.C.) Livy (iii. 54) implies the existence of a college, without mentioning its institution. Cf. iv. 44.
200. Cic. de Rep. ii. 14, 26.
201. Liv. x. 6.
202. Bouché-Leclerq Les Pontifes de l'ancienne Rome p. 9. That the king was pontiff is stated by Plutarch (Numa 9), Servius (ad Aen. iii. 81), and Zosimus (iv. 36), but the evidence may be vitiated by the position of the Princeps as pontifex maximus.
203. Liv. i. 20 (p. 51 n. 5); cf. Ambrosch Studien p. 22.
204. Cic. de Rep. ii. 9, 16; de Div. i. 2, 3.
205. Liv. i. 20 "Tum sacerdotibus creandis animum adjecit, quamquam ipse plurima sacra obibat, ea maxime quae nunc ad Dialem flaminem pertinent."
206. As, e.g., the nomination of Flamines belonged to the Latin dictator (Ascon. in Milon. p. 32).
207. Gaius i. 130. The same was the case with the Vestal (Gell. i. 12).
208. For the Flamen see Liv. xxxi. 50; Festus p. 104. For the Vestal, Gell. x. 15.
209. Plut. Numa 10.
210. Liv. i. 20 (cited p. 51).
211. Supplicium, from sub-placo, death as a sin-offering (Festus p. 308 "supplicia . . . sacrificia a supplicando"); castigatio ("castum agere") purification through atonement. On the other hand poena, multa, talio bear witness to a theory of compensation and private vengeance. See Rein Criminalrecht p. 39.
212. Liv. i. 26; Dionys. iii. 22; Festus pp. 297 and 307.
213. Festus p. 222; Gell. iv. 3.
214. Macrob. i. 16, 10 "prudentem expiare non posse."
215. Cic. de Leg. ii. 9, 22.
216. Dionys. ii. 10; Serv. ad Aen. vi. 609.
217. Festus p. 230.
218. Dionys. ii. 74; Festus p. 368.
219. Plin. H.N. xviii. 3, 12.
220. Bouché-Leclerq Les Pontifes p. 196. In the lex sacrata which protected the tribunes we meet with this distinction (Liv. iii. 55).
221. Festus p. 318 "At homo sacer is est, quem populus judicavit oh maleficium; neque fas est eum immolari, sed qui occidit, parricidi non damnatur." This is the meaning of sacer as employed in the leges sacratae of the early Republic (Liv. ii. 8; iii. 55).
222. The sacramentum (literally "oath") in the actio sacramento is best explained as an atonement (piaculum) in the form of a money payment for the expiable, because involuntary, perjury of the litigant who has maintained a false claim. When the process was secularised, the sacramentum came to be considered a simple wager. See Danz Der sacrale Schutz pp. 151 ff.
223. Cic. de Rep. ii. 17, 31 "constituitque jus, quo bella indicerentur; quod per se justissime inventum sanxit fetiali religione, ut omne bellum, quod denuntiatum indictumque non esset, id injustum esse atque impium judicaretur."
224. Varro L.L. v. 86 "Fetiales . . . fidei publicae inter populos praeerant; nam per hos fiebat ut justum conciperetur bellum et inde desitum, ut foedere fides pacis constitueretur. Ex his mittebantur, antequam conciperetur, qui res repeterent, etc."
225. Cic. de Leg. ii. 9, 21 "Foederum, pacis, belli, indutiarum ratorum fetiales judices nuntii sunto; bella disceptanto." The word fetialis is probably connected with fateri (and Oscan fatium). Thus the "Fetiales" are speakers (oratores), cf. Festus p. 182. Dionysius (ii. 72) ascribes the creation of the Fetiales to Numa; Livy (i. 32) speaks as if they were due to Ancus Martius, but in another passage (i. 24) implies their earlier existence. Cicero attributes them to Tullus Hostilius (Cic. de Rep. ii. 17, 31). The ceremonies of the college are described in Dionys. ii. 72 and Liv. i. 32.
226. Sometimes, the better to secure divine assistance, the enemy, his cities, and his lands were all devoted to the gods. For the incantation see Macrob. iii. 9, 10 "Dis pater Vejovis Manes, sive quo alio nomine fas est nominare . . . uti vos eas urbes agrosque capita aetatesque eorum devotas consecratasque habeatis ollis legibus, quibus quandoque sunt maxime hostes devoti; eosque ego . . . do devoveo." The site of such cities was cursed, as in Republican times that of Fregellae, Carthage, and Corinth.
227. Macrob. iii. 9, 7 "Si deus, si dea est, cui populus civitasque . . . est in tutela, teque maxime, ille qui urbis hujus populique tutelam recepisti . . . a vobis peto ut vos populum civitatemque . . . deseratis . . . proditique Romam ad me meosque veniatis, nostraque vobis loca templa sacra urbs acceptior probatiorque sit."
228. Cincius ap. Arnob. iii. 38 "solere Romanos religiones urbium superatarum partim privatim per familias spargere, partim publice consecrare."
229. e.g. the evocatio at the siege of Veii, the devotio on the fall of Carthage.
230. Plut. Ti. Gracch. 15; Tac. Ann. iii. 26. See next citation.
231. Tac. Ann. iii. 26 "nobis Romulus, ut libitum, imperitaverat: dein Numa religionibus et divino jure populum devinxit, repertaque quaedam a Tullo et Anco. Sed praecipuus Servius Tullius sanctor legum fuit, quis etiam reges obtemperarent."
232. Pomponius in Dig. 1, 2, 2 "et ita leges quasdam et ipse (Romulus) curiatas ad populum tulit; tulerunt et sequentes reges. Quae omnes conscriptæ extant in libro Sexti Papirii, qui fuit illis temporibus, quibus Superbus Demarati Corinthii filius, ex principalibus viris. Is liber, ut diximus, appellatur jus civile Papirianum, non quia Papirius de suo quicquam ibi adjecit, sed quod leges sine ordine latas in unum composuit." This code was commented on by Granius Flaccus (Paul. in Dig. 50, 16, 144), a contemporary of Julius Caesar. C. Papirius is said to have been pontifex maximus (Dionys. iii. 36), and Mommsen (Staatsr. ii. p. 41) thinks that the leges regiae were simply pontifical ordinances, specifying amongst other things such offences as we have mentioned as coming under fas (p. 54).
233. Sall. Cat. 6 "imperium legitimum, nomen imperii regium habebant."
234. "Regium consilium" (Cic. de Rep. ii. 8, 14). The function of the Senate was [Greek: peri pantos hotou an eisêgêtai basileus diaginôskein] (Dionys. ii. 14).
235. Festus p. 246 "Praeteriti senatores quondam in opprobrio non erant, quod, ut reges sibi legebant sublegebantque, quos in consilio publico haberent, ita post exactos eos consules quoque et tribuni militum consulari potestate conjunctissimos sibi quosque patriciorum et deinde plebeiorum legebant."
236. p. 13.
237. Liv. i. 8.
238. ib. 17 and 35; ii. 1. On the nature of this increase see Willems Le Sénat p. 21.
239. p. 13.
240. p. 12.
241. Liv. i. 32.
242. Dionys. ii. 14. One of the privileges of the people was [Greek: peri polemou diaginôskein hotan ho basileus ephê].
243. Cic. de Rep. ii. 9, 15 "Cum ipse (Romulus) nihil ex praeda domum suam reportaret, locupletare cives non destitit"; ii. 14, 26 "ac primum agros, quos bello Romulus ceperat, divisit viritim civibus." Cf. Dionys. ii. 28 and 62.
244. Liv. i. 49 "cognitiones capitalium rerum sine consiliis per se solus exercebat."
245. ib. 59; see p. 41.
246. Tac. Ann. vi. 11 "namque antea, profectis domo regibus ac mox magistratibus, ne urbs sine imperio foret, in tempus deligebatur qui jus redderet ac subitis mederetur . . . duratque simulacrum, quotiens ob ferias Latinas praeficitur qui consulare munus usurpet." Cf. Liv. i. 59; Dionys. ii. 12.
247. Yet Livy and Dionysius represent the tribunus celerum as summoning the assembly (Liv. i. 59; Dionys. iv. 71).
248. Dionys. ii. 14 (amongst the powers of the king were) [Greek: tôn te adikêmatôn ta megista men auton dikazein, ta d' elattona tois bouleutais epitrepein]. It is difficult, however, to determine whether the reference is to civil wrongs or to crimes.]
249. ib. iv. 25 [Greek: ekeinos (Servius Tullius) [Greek: dielôn apo tôn idiôtikôn (enklêmatôn) ta dêmosia, tôn men eis to koinon pherontôn adikêmatôn autos epoieito tas diagnôseis, tôn de idiôtikôn idiôtas etaxen einai dikastas, horous kai kanonas autois taxas, hous autos egrapse nomous]. The principle here described perhaps refers to delegation rather than to the distinction between jus and judicium in civil process.]
250. For derivations of jus see Clark Pract. Jurisprudence pp. 16-20; Bréal "Sur l'origine des mots designant le droit en Latin" in Nouvelle Revue Historique de droit vol. vii. (1883) pp. 607 sq.
251. Dionys. l.c.
252. Liv. i 26.
253. Zonaras vii. 13 (who attributes their institution to Publicola) identifies the quaestores with the quaestores parricidii, [Greek: hoi prôton men tas thanasimous dikas edikazon, othen kai tên prosêgorian tautên dia tas anakriseis eschêkasi kai dia tên tês alêtheias ek tôn anakriseôn zêtêsin]. Cf. Varro L.L. v. 81. Mommsen (Staatsr. ii. pp. 523 sq.) thinks the financial quaestors as standing officials originated with the Republic; but he believes (p. 539) that they had their origin in the criminal quaestores (a word which bears the same relation to quaesitores as sartor to sarcitor or quaero to quaesivi, p. 537). Cf. Tac. Ann. xi. 22 (p. 81); Ulpian in Dig. i. 13.]
254. Liv. l.c.
255. Cic. pro Mil. 3, 7; de Rep. ii. 31, 54; Festus p. 297.
256. Liv. i 26 "Si a duumviris provocarit provocatione certato . . . auctore Tullo, . . . 'provoco' inquit."
257. ib. viii. 33.
258. Cf. Ihering Geist des röm. Rechts i. pp. 257 ff.
259. Provocatio seems to mean a challenge, i.e. a challenge by an accused to a magistrate to appear before another tribunal, on the ground that he is not acting within his own right; cf. Gaius iv. 93 (of the actio per sponsionem) "Provocamus adversarium tali sponsione."
260. "In this conflict of competence the position of the king was far more favourable than that of the people, since the people could only be summoned by the king. Hence the share of the people in criminal jurisdiction was reduced to a minimum" (Ihering Geist des röm. Rechts i. p. 258).
261. "Judiciis regiis" (Cic. de Rep. v. 2, 3).
262. p. 56.
263. Savigny System, vi. p. 287; Bernhöft Staat und Recht der Königszeit p. 230. The idea of its being an innovation has sometimes been associated with Dionysius's description (iv. 25, see p. 62) of a change in jurisdiction introduced by Servius Tullius.
264. Cic. pro Cluent. 43, 120 "Neminem voluerunt majores nostri non modo de existimatione cujusquam, sed ne pecuniaria quidem de re minima esse judicem, nisi qui inter adversarios convenisset."
265. Ihering Geist des röm. Rechts i. p. 169.
266. Dionys. iv. 22 [Greek: ho de Tullios kai tois eleutheroumenois tôn therapontôn . . . metechein tês isopoliteias epetrepse . . . kai pantôn apedôke tôn koinôn autois metechein, hôn tois allois dêmotikois
267. The change, however, was not supposed (except perhaps by Tacitus Ann. iii. 26, see p. 58) to rest on a rogatio. Mommsen (Staatsr. iii. p. 161) explains this tradition by noting that the alteration was a mere administrative act, which would fall within the competence of the king.
268. It is possible that these three tribes would have been to some extent local; but locality was an accident. Membership of them was transmitted by birth.
269. Dionysius (iv. 22) makes them at a later time members of the curiae.
270. Dionys. iv. 14; Gell. xv. 27.
271. Cic. pro Flacco 32, 80 "sintne ista praedia censui censendo, habeant jus civile, sint necne sint mancipi? . . . in qua tribu denique ista praedia censuisti?" The ager publicus was not included in the tribes, nor were the Capitol and Aventine, because they were not private, but public property (Liv. vi. 20; Dionys. x. 31 and 32).
272. Liv. i. 43 "Quadrifariam urbe divisa, regionibusque et collibus, qui habitabantur, partes eas tribus appellavit"; Dionys. iv. 14 [Greek: ho Tullios, epeidê tous hepta lophous eni teichei perielaben, eis tettaras moiras dielôn ten polin . . . tetraphylon epoiêse ten polin einai, triphylon ousan teôs]. So Festus p. 368 "urbanas tribus appellabant, in quas urbs erat dispertita a Ser. Tullio rege." Cf. Varro L.L. v. 56. Mommsen (Staatsr. iii. p. 163) now holds that the tribes were "parts of the state-town limited by the pomerium." Ostia, once thought to belong to Palatina, has been shown to belong to Voturia. But the reason for this may be the subsequent loss of the territorium of the city. See p. 68.]. Mommsen (Staatsr. iii. p. 169) seems to lean to the view that those country districts, comprising land not in quiritarian ownership, were pagi.
273. Momms. Staatsr. iii. p. 168. Rome was at this time a great commercial state (cf. treaty with Carthage, 509 B.C.). That such a primitive institution as gentile tenure could have existed at this time is inconceivable.
274. Dionys. iv. 15 [Greek: dieile de kai ten chôran hapasan, hôs men Phabios phêsin, eis moiras hex te kai eikosin, has kai autas kalei phylas
275. Sucusana (or Suburana), Palatina, Esquilina, and Collina. See p. 3.
276. Cf. Momms. Staatsr. iii. p. 125 "The four tribes are probably nothing more than the three Romulian increased through the territorium of the town on the Quirinal"; p. 164 "Servian Rome, probably a double town composed of the old city, Palatine and Esquiline, and the new town of the Colline."
277. Districts like Ostia, which must have belonged to the Servian tribes, now formed parts of the new creations (see p. 67).
278. Servius is said for this reason to have prohibited transference of domicile or allotment. Dionys. iv. 14 (Servius) [Greek: tous anthrôpous etaxe tous en hekastê moira tôn tettarôn oikountas, hôsper kômêtas, mête metalambanein heteran oikêsin mêt' allothi pou syntelein
279. Momms. Staatsr. iii. pp. 182, 184.
280. Laelius Felix ap. Gell. xv. 27 "Cum ex generibus hominum suffragium feratur, 'curiata' comitia esse, cum ex censu et aetate 'centuriata,' cum ex regionibus et locis, 'tributa.'"
281. Servius himself is credited with the introduction of aes signatum—carefully adjusted copper weights stamped by authority. Plin. H.N. xviii. 3 "Servius rex ovum boumque effigie primus aes signavit." Mommsen (Römisches Munzwesen) thinks that the stamp was a guarantee not of the weight but of the purity of the metal. In this case the metal must have been used as a medium of exchange; as a medium of barter the weight would be sufficient. Mommsen's opinion is (op. cit. p. 175) that a regular copper coinage was not introduced at Rome until about the period of the decemviri (450-430 B.C.), and more recent numismatists pronounce even this date to be too early.
282. Momms. Staatsr. iii. p. 247.
283. The existence of the guilds in regal times (Plut. Num. 17) rather proves than disproves the competing manufacture by slaves.
284. Cic. pro Flacco 32, 80. See p. 66.
285. For this difference of armour see Liv. i. 43; Dionys. iv. 16, 17. It survived into Polybius' time (Polyb. vi. 23 [Greek: hoi de hyper tas myrias timômenoi drachmas anti tou kardiophylakos syn tois allois halysidôtous peritithentai thôrakas
286. Gellius vi. (vii.) 13 "'Classici' dicebantur non omnes, qui in quinque classibus erant, sed primae tantum classis homines, qui centum et viginti quinque milia aeris ampliusve censi erant. 'Infra classem' autem appellabantur secundae classis ceterarumque omnium classium, qui minore summa aeris, quod supra dixi, censebantur"; Festus p. 113 "infra classem significantur qui minore summa quam centum et viginti milium aeris censi sunt." Belot (Hist. d. Chev. Rom. i. 204, 205) thinks that the 125,000 asses mentioned here was the figure of the lowest census—the fifth class—at the time of the lex Voconia (169 B.C.), mentioned in this connexion by Festus. The designation in asses was still kept, but the as must now be multiplied by 10 (12,500 x 10 = 125,000 asses). Belot starts from his hypothesis that the as of the census is the old libral as. See the tables on the next page. Mommsen (Staatsr. iii. p. 249 n. 4), on the other hand, supposes that the law referred to the census of the first class, and that it was through an interpretation meant to limit its operation, when the value of money had altered, expressed in terms of the centum milia aeris of libral asses. That it was so interpreted is shown by the fact that the centum milia aeris of the Voconian law (Gaius ii. 274) became centum milia sestertium (Schol. to Cic. Verr. ii. 1, 41, 104, p. 188 Orell.), i.e. 25,000 denarii (Dio Cass. lvi. 10).]and [Greek: chalkeis] amongst the collegia (Momms. Staatsr. iii. p. 287 n. 1).
287. Plut. (Num. 17) mentions [Greek: tektones
288. So too Polybius (vi. 23, cited p. 70).
289. Plin. H.N. xxxiii. 3 "Maximus census CXX assium fuit illo (Servio) rege, et ideo haec prima classis." Festus p. 113 (cited p. 70).
290. Staatsrecht iii pp. 249, 250. Böckh (Metrologische Untersuchungen p. 444) also takes the view of the asses being sextantarii. He makes the qualifications in terms of the libral as and the as of two ounces respectively: 20,000 = 100,000, 15,000 = 75,000, 10,000 = 50,000, 5000 = 25,000, 2000 = 10,000.
291. Histoire des Chevaliers Romains (Table at commencement of vol. i).
292. Festus p. 18 "accensi dicebantur qui in locum mortuorum militum subito subrogabantur, dicti ita, quia ad censum adiciebantur"; p. 369 "velati appellabantur vestiti et inermes qui exercitum sequebantur, quique in mortuorum militum loco substituebantur." Cf. p. 14 "adscripticii veluti quidam scripti dicebantur, qui supplendis legionibus adscribebantur. Hos et accensos dicebant, quod ad legionum censum essent adscripti. Quidam velatos, quia vestiti inermes sequerentur exercitum."
293. Liv. i. 43 "hoc minor census reliquam multitudinem habuit; inde una centuria facta est immunis militia"; Dionys. iv. 18 (the remaining citizens with a qualification under 12-1/2 minae Servius placed in one [Greek: lochos [Greek: strateias te apelyse kai pasês eisphoras epoiêsen ateleis]. Cf. vii. 59 [Greek: outoi strateiôn te hêsan eleutheroi tôn ek katalogou kai eisphorôn tôn kata timêmata genomenôn ateleis kai di' amphô taut' en tais psêphophoriais atimotatoi.] Cf. Cic. de Rep. ii. 22, 40 "in quo etiam verbis ac nominibus ipsis fuit diligens; qui, cum locupletes assiduos appellasset ab asse dando, eos, qui aut non plus mille quingentos aeris aut omnino nihil in suum censum praeter caput attulissent, proletarios nominavit; ut ex iis quasi proles, id est quasi progenies civitatis, exspectari videretur. Illarum autem sex et nonaginta centuriarum in una centuria tum quidem plures censebantur, quam paene in prima classe tota."
294. Ulpian in Fragm. Vat. 138 "ii qui in centuria accensorum velatorum sunt, habent immunitatem a tutelis et curis."
295. The word is not technical enough to be used as an argument that the classes included only landholders. The favourite ancient derivation was from ab asse dando (Cic. de Rep. ii. 22, 40, see p. 72), whether for the payment of taxation or for the furnishing of military equipment.
296. Capite censi, if we trust Cicero (de Rep. ii. 22, 40, see p. 72), came to mean those below 1500 asses (the subsequent limit to the incidence of taxation). The limit of census for military service was also reduced to 4000 asses (Polyb. vi. 19), and finally to 375 (Gell. xvi. 10, 10), and those below this census continued to be called capite censi (Gell. l.c.; Sall. Jug. 86). Aerarius, on the other hand, seems to have preserved its old meaning of those excluded from the centuries—Ps. Asc. in Divin. p. 103 "(Censores) prorsus cives sic notabant . . . ut, qui plebeius (esset) . . . aerarius fieret, ac per hoc non esset in albo centuriae suae, sed ad hoc [non] esset civis, tantummodo ut pro capite suo tributi nomine aera praeberet."
297. p. 41.
298. It is not known when they ceased to be patrician; Mommsen (Staatsr. iii. p. 254) thinks on the reform of the Servian constitution, circa 220 B.C.
299. Liv. i. 36.
300. Cic. de Rep. ii. 22, 39.
301. Festus p. 221 "paribus equis, id est duobus, Romani utebantur in proelio, ut sudante altero transirent in siccum. Pararium aes appellabatur id, quod equitibus duplex pro binis equis dabatur."
302. Liv. i. 43 "ita pedestri exercitu ornato distributoque equitum ex primoribus civitatis duodecim scripsit centurias. Sex item alias centurias . . . sub isdem, quibus inauguratae erant, nominibus fecit: ad equos emendos dena millia aeris ex publico data [i.e., as Livy understands it, 10,000 asses sextantarii = 1000 denarii, et, quibus equos alerent, viduae adtributae, quae bina milia aeris in annos singulos penderent" [2000 asses = 200 denarii]. Cf. Gaius iv. 27.
303. The number of the century was here fixed, and not, as in the case of the classici, expansive.
304. Cf. Liv. i. 43 "neque eae tribus ad centuriarum distributionem numerumque quicquam pertinuere." There is no evidence, e.g., that each tribe furnished a certain number of centuries.
305. Tributum, however, cannot be derived from tribus (as by Varro quoted p. 40). The parallel words attribuere, contribuere, ultro tributa, etc., seem to show that it means something added to, conferred on, or collected for another.
306. p. 48.
307. As such it was in the Republic given for the censors. Cic. de Leg. Agr. ii. 11, 26 "majores de singulis magistratibus bis vos sententiam ferre voluerunt; nam cum centuriata lex censoribus ferebatur, cum curiata ceteris patriciis magistratibus, tum iterum de eisdem judicabatur."
308. p. 43.
309. p. 63.
310. p. 60.
311. Liv. i. 48 "id ipsum tam mite ac tam moderatum imperium tamen, quia unius esset, deponere eum in animo habuisse quidam auctores sunt, ni scelus intestinum liberandae patriae consilia agitanti intervenisset."
312. ib. 49.
313. Cic. de Rep. ii. 22, 44.
314. Cic. de Rep. ii. 30, 52; Liv. ii. 1; App. B.C. ii. 119. It is sometimes represented as a law which made any one who aimed at royalty sacer (Liv. ii. 8). For the dual sanction of the oath and the law compare the means by which the sacrosanctitas of the tribunes was secured (p. 100).
315. It is strange that the interregnum, which would have secured a continuity, is not mentioned in this case. The election of the first consuls was supposed to have been conducted by the praefectus urbi, who almost certainly had not the jus rogandi (p. 61). Liv. i. 60 "duo consules inde comitiis centuriatis a praefecto urbis ex commentariis Servii Tullii creati sunt, L. Junius Brutus et L. Tarquinius Collatinus."