Roman Public Life/Chapter 3

by Abel Hendy Jones Greenidge

CHAPTER III

THE CLASSES OF THE POPULATION AND THE THEORY OF THE CONSTITUTION IN THE DEVELOPED REPUBLIC

§ 1. The Classes of the Population

By the date of the lex Hortensia (287 B.C.) the Republican constitution had, in all essential points (considered as the constitution of a city-state), completed its growth; but, before we proceed to examine the theory and practice of the developed polity, it is necessary to pause and inquire what changes these centuries of Republican development had made in the status of the citizen, and in that of the other classes of the city, who shared partially in, or were excluded from, his rights, and what modifications had been undergone by the few main legal rules which mark the outline of their social environment

The merging of Patricians and Plebeians into one community created the necessity for a universal conception of citizenship applicable to the whole body which possessed active political rights, while the growing practice of granting partial civic rights to the members of certain Italian communities led to the distinction between the fully-privileged and the partially-privileged citizen. The former is the civis optimo jure, the latter the civis non optimo jure. It is only of the former that we shall speak here; the consideration of the latter will be more appropriately deferred to that portion of our work which treats of the Italian confederation.

The normal mode of the acquisition of citizenship was naturally birth, either from two citizens or from a citizen and a foreigner. The question of the necessity of the marriage of the parents for the full citizenship of the children we shall soon consider; the primary question that presents itself to a nation is that of the allegiance of the child who is the product of a citizen and a foreigner. In such a case the older principle of Roman law (an instance probably of a universal principle of Italian law) was that, where conubium existed between the parents, the children followed the status of the father; where conubium did not exist, nature dictated that they should follow the condition of the mother.^[1] But an arbitrary exception to this principle was made at an unknown date in Roman law by a lex Minicia which enacted that, in case of unions without conubium between a Roman and a foreigner, the children should follow the status of the less privileged parent; the child of a civis Romana by a peregrinus was, therefore, himself a peregrinus.

The exceptional modes by which citizens were created were (i.) state-conferment of the civitas on peregrini or of full civitas on cives non optimo jure, and (ii.) the manumission of slaves.

(i.) State-conferment of the civitas was only an exceptional measure in so far as it required a special legislative act.^[2] The extraordinary liberality of Rome in this respect, never equalled in the life of the ancient city-state—a liberality which spread the name of Roman citizen first over Italy and then over the greater part of the civilised globe—was not an outcome of any suddenly adopted policy, but persisted from the birth of the city^[3] to the world-embracing edict of Caracalla (212 A.D.). A few figures are sufficient to represent the extent of the increase effected by this means. The male citizens who appeared on the census rolls were, at the close of the first Punic war (240 B.C.), 260,000; in 124 they had risen to 394,726; in 85, after the incorporation of the greater part of Italy, to 963,000.^[4] Under Augustus (28 and 8 B.C. and 14 A.D.) the figures were 4,063,000, 4,233,000, and 4,937,000; and the census of Claudius (47 A.D.) gave a return of 5,984,072 civium capita.^[5]

This gift of citizenship was, in the Republic, conferred exclusively by a decree of the people (jussu populi). Such decrees might be either of a standing or a particular character; they might confer the gift immediately on the recipients or through intermediary delegates. Standing rules are mainly such as governed the condition of the dependencies of Rome. We shall find that the rights of Latin colonies provided facilities for the attainment of citizenship; the criminal laws sometimes gave a foreigner the gift of civitas as a reward for successful prosecution;^[6] and, after the fall of the Republic, the enlistment of legionaries from the provinces was one of the most fertile sources from which the citizen body was recruited. Particular conferments, if not made directly by the people, might be effected through the Senate acting as its delegate,^[7] or through commissioners charged with the founding of colonies. These were generally the specially-appointed IIIviri coloniae deducendae; and in all such cases of delegation the power was conferred by a lex.^[8] In the last century of the Republic we find the custom growing up of permitting by special enactment such powers to generals in the field. Marius in the Cimbric war had the gift of citizenship in his hands, and a lex Cornelia Gellia granted a similar power to Pompeius during his Spanish campaigns.^[9] This was the stepping stone to the right possessed by the sole commander-in-chief, the Princeps, to confer the citizenship at his pleasure.

(ii.) Any perfectly valid form of manumission conferred citizenship on slaves. Every form was undertaken at the initiative of the master, but for it to be perfectly sound (manumissio justa)^[10] he must observe certain rules of law. The most usual form was the manumissio vindicta. It was one of the many fictitious forms of the old capture of property (vindicatio), the primitive Roman method of recovery. A man of straw, called the adsertor in libertatem, appeared before any magistrate, who could claim the conduct of the legis actio^[11] declared the slave to be free, and touched his head with a staff (vindicta).^[12] The master yielded, and this cession of his rights (in jure cessio) was followed by the declaration of the magistrate that the slave was free.^[13]

The second form was the enrolment on the register of citizens by the censor, when the census was in progress, at the request of the master (manumissio censu). It was the false declaration of the master that the man was free which gave validity to this form.^[14]

The third and later form was manumission by testament (manumissio testamento), by which the master either commanded the freedom of the slave in his will, or left it as a trust to his heir.^[15]

The comparative inconvenience of these forms had led to other simpler modes of manumission—by announcement of the freedom before friends (inter amicos), or through a letter to the slave bidding him live as a freeman (per epistolam), or even by inviting him to dine as a freeman at his master's table (per mensam).^[16] Manumission effected in this informal way, though protected by the civil courts, did not confer the political rights of citizenship.

The citizen who was made such by manumission was a libertinus; all others were, at the close of the Republic, free-born (ingenui). The distinction conferred by ingenuitas was, as we shall see, an important one, since this condition was a requisite for the army, the magistracy, and the higher orders (ordines) of the state. But the conception of "free birth," though a simple one at the end of the Republic, is one that has had a history, and ingenuitas did not at all times bear the same meaning. At the end of the fourth century B.C. an ingenuus was one who was sprung, not merely from free but from free-born ancestors, for the term libertinus—always its antithesis—was used to cover, not merely the manumitted slave, but his descendant in the first degree.^[17] Before the close of the Republic the son of a freedman or of a freed-woman was ingenuus, the only condition being "birth in a state of freedom."^[18] The status of the mother alone was taken into consideration, that of the father being neglected, and the condition of marriage, which could not be taken into account if one of the parents was unfree, was necessarily not required.

Legal marriage must in early times have been a condition of ingenuitas in the plebeian, as it certainly was in the ancient patrician community. But before the close of the Republic this condition too was disregarded, and illegitimate children (spurii filii) were placed on a level, as regards honours and offices, with those born from wedlock.^[19] It was one of the many triumphs of the law of nature over the law of the state.

The rights (jura) of the citizen in the developed Republic were those which we have enumerated as belonging to the free Plebeian of the monarchy,^[20] with most of the exclusively patrician privileges added. They included the rights of marriage and of commerce, with their consequences, the patria potestas and the right of making testaments, and in addition, the power of occupying domain land and the rights of suffrage and of office. The Patricians still possessed some minor privileges,^[21] and the old theory was still upheld which reserved the auspicia for the patres. But, with Plebeians in possession of the imperium, this doctrine was maintained by the fiction which gave the occupant of a "popular" and, as it still continued to be called, "patrician" magistracy the patrician auspicatio.

The duties of the citizen are certain services which he owes to the state, which are paid either by his personal labour or by his property.

The name for these duties (moenera, munera, connected with munire, to "fortify") shows that they were connected with the military defence of the city. Originally most of such burdens were probably defrayed by the personal labour of the citizens.^[22] Even the financial burdens which afterwards pressed on property (munera patrimonii) were largely defrayed by their enforced toil (operae).^[23] In the municipal legislation of the close of the Republic we find the services of the citizens demanded for imposts such as the repair of roads and walls (munitio), which are in modern times covered by rates.^[24] But the tributum, at whatever time it was first imposed, came to satisfy most of the necessities formerly met by this enforced labour. Other public needs were, in the Republic, met by contracts concluded by the censor, of which we shall speak in connexion with that office. A clear distinction could now be drawn between the great burden on property—the tribute—and the great burden on the person—military service.^[25]

The tribute was, from the time of the Servian census, imposed on the property which formed the basis of the classes—originally, therefore, on res mancipi;^[26] later it was levied on all property and was paid by all registered citizens who were sui juris, the aes hordearium and equestre for the support of the knights being still paid by children and women who were also sui juris.^[27] The lowest property taxed was, as we have seen, one of 1500 asses.^[28] The taxation was not, however, like military service, graduated according to the classes, but was collected uniformly, usually at a rate of one as in the 1000 (1/10 per cent). The tribute was an extraordinary tax and was imposed, like military service, only when the necessities of the state demanded it, practically when there was no reserve fund in the aerarium. The state regarded it as a loan rather than as its due, and sometimes considered itself bound, when its finances were more flourishing, to return the money to the contributors.^[29] The vast revenues accruing to the state as a result of the third Macedonian war in 167 B.C. caused the cessation of the tribute,^[30] and no further direct tax was collected at Rome until at the end of the third century A.D. it was reimposed by Diocletian and Maximian. Tribute was, indeed, inconsistent with Rome's imperial position. It had been meant to defray the cost of the legions, but, with the creation of the empire, each province defrayed the expenses of its own military occupation.

Service in the legions (militia) was in theory a burden; exemptions from it were occasionally granted as though it were a troublesome duty,^[31] and the citizen who did not present himself for the conscription was sold as a slave^[32] across the Tiber.^[33] But the treatment of the levy and the feeling of the citizens raised this burden (munus) into a privilege (honor); it was for this reason that free birth was always required as a qualification for a legionary, and that the ranks were never tainted by the admission of men of servile blood. The Servian census was still the scale by which military service was measured, both in the legio and in the select corps of citizen cavalry (equites). The legal duration of service throughout the greater part of the Republic was sixteen, or at the most twenty yearly campaigns (stipendia) for the foot soldier, and ten campaigns for the knight. The performance of the munera of tribute and military service required a third duty, which was the condition of both. This was the presence of the citizen who was sui juris at the census for the purpose of registration. All who neglected this duty (the incensi) could be sold as slaves across the Tiber.^[34]

The concepts of the individual as the subject of rights, of their tenure and of their infringement, gave rise to a gradually developed theory of the jura with which the citizen was invested, and the mode in which they might be lost, which plays a large part in the speculations of the jurists. It attached itself to the primitive idea of a capitis deminutio, the lessening of status caused by the loss of family rights.^[35] Gradually jurisprudence evolved the idea of a caput or personality possessed by every individual independent of citizenship, an idea running parallel with the conception of a law of the civilised world (jus gentium) independent of the jus civile. From this point of view loss of citizenship could be spoken of as a capitis deminutio. There was besides an infringement of personality greater even than the loss of citizenship of which the natural man might be the victim. This was the loss of freedom. These two great derogations of caput were spoken of as magna capitis deminutio;^[36] but finally a more precise classification gave the following three grades of loss of status:^[37]—

(i.) Capitis deminutio maxima was the loss of civitas and libertas, consequent on a man's becoming a prisoner of the enemy. With the loss of freedom, political and therefore private rights^[38] ceased ipso jure to exist. The obligations of international law might also produce this condition; the Roman general who concluded a treaty with the enemy, which the people would not accept, was handed over as a scape-goat for the broken faith of the community^[39] (deditus), and similar treatment was meted out to one who had violated the sanctity of envoys,^[40] or to a general who had made war with a state in alliance with Rome.^[41] This loss of status was also produced by the civil law, in so far as it enjoined slavery as a penal measure—e.g. in the case of the incensi or of those who shirked military service^[42]—or permitted the sale of the debtor or of the child into a foreign land.^[43]

(ii.) Capitis deminutio media (or minor^[44]) was the loss of civitas alone.

This might be voluntarily incurred by the assumption of the citizenship of another town, for the principle of the older Roman law was that a man might not be a member of two independent communities.^[45] The exile from Rome which followed condemnation for a criminal offence was of this type of rejection of citizenship, for the exile was always assumed to be a voluntary act. Enforced abstention from the Roman civitas, which necessitated a continuance in exile, was produced by the decree of outlawry (aquae et ignis interdictio)^[46] often passed by the people against an individual who was in voluntary banishment for a crime.

(iii.) Capitis deminutio minima—originally a loss of family rights—was improperly construed by the later jurists as a change of family status.^[47] Its applications have been already considered.^[48]

There were means of recovering the status lost in either of these three modes. The loss of familia in its original sense^[49] might be recovered by emancipation; the loss of civitas, if enforced by the state, by a special act repealing this disability (the restitutio in integrum of the criminal law). Libertas could be regained by the exercise of a right known as the jus postliminii. The return, unintentional or premeditated, of the captive within the limits of his own country destroyed the state of bondage, and restored the ingenuitas and the rights of the former prisoner. Although described as a legal fiction^[50] it was a direct consequence of the simple principle that a Roman could not be enslaved on Roman soil.

The Roman family had been subjected to many modifications since we last considered it.^[51] The patria potestas, indeed, existed in all its old rigour, and the power of life and death over the children still found occasional expression; but the unity of the family had been largely dissolved by the laxity of the marriage tie. A modification of the usus marriage had come into vogue, which recognised the consent of the parties, without the prescriptive tenure by which the potestas was asserted, as the only bond—one, therefore, dissoluble at any moment by rejection on the part of the husband or by mutual consent. The wife remained a member of her father's familia, and if she was sui juris, retained her own property; for the tutelage of women was out of accordance with the spirit of the age, and, though not abolished, was evaded by cunningly contrived legal fictions.^[52] Never, perhaps, have women been freer from social trammels and legal bonds than they were in the last century and a half of the Republic, and one of the features of their independence was an indirect, but very powerful, influence on politics.

But the greatest change in Roman society was due to the growth of a slave population, which, in the city and that part of Italy which formed the Roman domain, reduced the free citizens to a minority.

The rules of the jus gentium—which in this instance, as in many others, is pure international law—permitted the captive to be enslaved until such time as he set foot again in his native land, if this country of his were an independent state.^[53] This principle, applied to the victorious wars of Rome, had flooded Italy with specimens of various nationalities which were applied to various uses. These prisoners of war were, as a rule, immediately transferred from the ownership of the state to that of private individuals. They were sold by the quaestors,^[54] often in the camp,^[55] and the slave-dealer tracked the footsteps of a successful general.^[56] War alone might have provided all that were needed for the most luxurious community, if we may judge from the result of the second conquest of Macedon, which swept 150,000 Epirot captives into Italy,^[57] and from the consequences of the campaigns of Caesar and Lucullus. But it was supplemented by a brisk slave trade, which after the fall of Corinth and Carthage (146 B.C.) centred at Delos, and which at the close of the Republic had reached such dimensions that, during the reign of the Cilician pirates, 10,000 slaves are said to have been imported and sold there in the course of a single day.^[58] It was chiefly from the latter source that the versatile natives of the East were brought, Phrygians, Mysians, Lydians, Lycians, Paphlagonians, the Hellenised members of the "nations born to slavery," who, while professing to interpret, often guided and controlled, the wills of their slower Roman masters.

Their use was twofold; they were either labourers in the workshop and the field, or domestic members of the villa or the palace, and their presence in either capacity was fraught with important political consequences for Rome. Their cultivation of the mechanical arts and crafts made the Roman noble's household self-sufficient^[59] and the competition of the free artisan almost a hopeless task. In the country they were gradually replacing both the free labourer and the yeoman farmer. The advantage of cheap labour, which could not be snatched from the master's hands by the needs of distant wars, was at an early period recognised by the nobles in the cultivation of their vast estates.^[60] After the acquisition of the province of Sicily, which supplied cheap food to Rome, slave labour on the large estates became an economic necessity; for it was the only condition on which corn could now be productively grown. The lot of the plantation slave, unknown to his master and exposed to the mercies of the overseer, was a shameful parody of the earlier domestic servitude. Yet the state did nothing. The slave possessed no rights, as in the time when he, perhaps, required none. In the case of domestic slavery, the moral influence of an intellectually superior race was often an adequate substitute for the absence of rights, and a further solatium was found in the door of emancipation which was ever open to the favourite. The Roman was not ungrateful, and he recognised that it was the slave who made him an individual power in the world. The unequalled administrative capacity of men like C. Gracchus, Crassus, Caesar, and Pompeius, which has found no parallel in the modern world, was largely due to their absolute command of men of perhaps less originative power, but often of greater capacity for combination and detail than they.

Usefulness to the master was in fact the end to which the changes in the law relating to servitude were directed. The slave might benefit his lord by a contract entered into with a third party, but could not make his condition worse.^[61] The dominus could sue on the contract, although the slave having no legal personality could conclude only a natural obligation (naturalis obligatio), but he was not liable for the losses. To protect third parties, however, and to give the necessary legal credit to this useful agency, the praetor gradually established a series of quasi-liabilities for the master, which were really in his interest; for without them slave-agency would have become impossible. Thus, if the master had countenanced the slave's contract, he was liable (actio quod jussu); if the slave had embarked his peculium in trade with the master's knowledge, this property, though in strict law not his own, could be claimed by the creditors, after the slave's debts to the master had been deducted (actio tributoria). Finally, any liability incurred by the peculium could be recovered by creditors, the master's right of deducting his own claims against it being preserved (actio de peculio), and any material advantage derived by the master from the contract of a slave was taken into consideration and the property of the dominus made liable to that extent (actio de in rem verso).^[62] The slave, in fact, as having no personality of his own, is the best of agents, and the theory of agency, which the law of Rome has bequeathed to us, is one of the most perfect and permanent results of her system of slavery.

Apart from these relations to his master the slave was still ignored by law. He could not give evidence in court except under torture.^[63] In case wrongs were done him, it was not he but his master that demanded reparation;^[64] while his lord himself was the judge of the delicts which he had committed against himself or the household.^[65] That for crimes against others the slave was tried by the ordinary process of criminal law was a concession to society rather than to the wrongdoer, and the sense of insecurity of the free population amidst their far more numerous dependants was expressed in the atrocious law that the murder of a Roman in his own house should be avenged by the death of the whole familia that were sleeping beneath the roof at the moment of the commission of the crime.^[66]

The state itself owned slaves who were known as servi publici. Some were in the service of temples or of colleges of priests. Others were at the disposal of magistrates, such as the censors or aediles,^[67] for the minor duties of attendance and police. Their agency in contracts was doubtless as useful to the state as that of private slaves was to individuals. Such an agent (actor publicus) was kept by the treasury for the acquisition of property,^[68] which, as his peculium, fell under the dominium of the state.

We have seen that manumission in due form made a citizen of a slave. The libertini, therefore, are not a third class in the state, and only demand a separate treatment in so far as their grant of freedom was conditioned by the performance of certain duties to their former masters, and in so far as the lack of free birth (ingenuitas) entailed certain political disabilities.

The relation of the libertus^[69] to his former master, who now became his patronus, was to some extent modelled on that of the ancient client to his lord. The freedman owed his manumitter reverence and obedience (obsequium);^[70] he could not prosecute, or appear as a witness against him, in the criminal courts,^[71] and he required the permission of the praetor to bring even a civil action against his former master or that master's near relatives.^[72] The patron's right of succession to the freedman's estate if he died intestate and without heirs,^[73] if it was not a family right, was justified by the fact that the capital with which the freedman started life must have been generally the gift of the master, whether it took the form of a peculium or not. This circumstance must have been also felt to justify manumission on the condition of continuing to perform certain services to the dominus. But the privilege of imposing such conditions was abused, and had to be limited by the edict of a praetor Rutilius,^[74] which practically confined them to the performance of certain personal services (operae). The fact that the freedman was still regarded as an appendage of the familia was most clearly shown by the criminal jurisdiction—even extending to capital punishment—exercised over him by the head of the family even at the close of the Republic.^[75]

The political position of the libertini was probably better at the beginning than at the end of the Republic. Under the Servian régime they were, with all other citizens, members of the tribes; whether they were at first members of the centuries depends on the question whether free birth was always a requisite for military service, and this is a point on which evidence entirely fails us;^[76] but when the comitia centuriata had ceased to be a military and become a purely political institution, there is no reason to assume their exclusion. They would have been members of the comitia tributa and concilium plebis from the earliest institution of these two bodies. The freedmen (rarely landowners and usually mechanics) belonged in the main to the four old city tribes. This accident had become a legal prescription by the year 312 B.C. In that year the revolutionary census of App. Claudius, which we shall describe elsewhere,^[77] spread them over all the tribes,^[78] and probably, according to their census, over all the centuries. In 304 B.C. the old arrangement, which limited the freedman's vote, was reverted to.^[79] The censors of 169 went further and restricted them all to a single tribe.^[80] The conflict required the intervention of law, and it was probably the lex Aemilia (of M. Aemilius Scaurus, consul in 115 B.C.) which re-established the old principle of restriction to the urban tribes.^[81] But the question of the freedman's vote became a battle-cry in the last century of the Republic. In 88 B.C. the democratic tribune Sulpicius passed a law which gave the libertinus the tribe of his patron.^[82] It was repealed by the optimates; but the second triumph of the democrats in 84 B.C. again restored the law,^[83] until Sulla's ascendency finally established the limitation to the four city tribes. The freedmen were excused the burden, because not thought worthy of the honour, of regular military service in the legions.^[84] The same prejudice did not apply to the fleet, and for this service libertini were freely employed.^[85] The lack of free birth was also a ground of exclusion from the magistracy, and therefore from the Senate, to which this was the stepping-stone.^[86]

§ 2. The Theory of the Constitution

The Roman constitution had lost none of its complexity by growth. The accretions of ages had changed a curious but comparatively simple type of polity into a jumble of constitutional law and custom, through which even the keen eye of the Roman jurist could not pierce, and which even his capacity for fictitious interpretation and the invention of compromises could not reduce to a system. The lack of logic, which is the usual accompaniment of a conservatism not thorough-going enough to be consistent, produced a machine the results of which appeared for a time to be eminently satisfactory. It conquered the world, and succeeded for a time in governing it with some show of decency and a fair measure of success. Had the equilibrium been maintained in practice as in theory, mixed constitutions would have had the most assured claim to the respect and acceptance of the world. But as the knots which the jurist could not untie were cut by the sword, and the constitution reverted to a type far simpler even than that of its origin, we must assume a weakness in the mixed system, which might not have rendered it inadequate as the government of a city state or even of Italy, but certainly rendered it incapable of imperial rule. The test was a severe one, and the constitution which could not answer the strain need not be wholly condemned. For empire is a mere excrescence on the life of a state, a test neither of its goodness nor of its vitality. A pure treatment of the Roman constitution will neglect, as far as possible, this abnormal growth, and, although much of its structure was the result of war,^[87] will be able to show that its essential peculiarities were not the effect of conquest.

The Roman state was still a limited sovereignty of the people; so limited, indeed, that the people, i.e. the patricio-plebeian populus Romanus, was dependent, not merely for the expression of its will, but even for its existence, on the life of its supreme magistrates. In the practice of the Republic down to its closing days, the cessation of the consulate, by the non-election or the death of its occupants, caused the suspension of the life of the state. The people could not meet except under the shadow of the higher imperium or auspicia—those of lesser patrician magistrates were of no avail; for the praetor, though technically a colleague of the consuls,^[88] could not hold the consular elections^[89]—and the city was in a state of suspended animation until the auspicia in all their purity should be restored, were it but to a single man. The auspices, meanwhile, have returned to the "fathers,"^[90] and it is they only who can restore them. The first fundamental element, therefore, in the theory of the Roman constitution, however absurd it may seem, is that ultimate sovereignty rests with the patrician members of the Senate.^[91] How this theory was put into practice, and what modifications the practice had undergone since the time of the monarchy, may be seen by examining the procedure consequent on a Republican interregnum.

The conditions requisite for an interregnum were the non-existence of consuls, or magistrates with consular power, or a dictator. The retirement of all the other so-called patrician magistrates, i.e. magistratus populi, was another necessary preliminary, for the auspices could not return to the patres so long as they were held, whether as majora or minora auspicia,^[92] by a patrician magistrate.^[93] Hence, when a sudden occasion arose for the appointment of an interrex, it was the duty of the Senate to give notice to the patrician magistrates and to request them to retire from office.^[94] The plebeian magistrates still remained in the exercise of their functions.

It was, in the later Republic, the Senate which took all further necessary action. In the early Republic there was no possibility of its being summoned, and the patrician senators met at their own discretion to appoint the interrex. But after the tribune, who was still in office, had gained the right of transacting business with the Senate, it was he who put the question, and the Senate who suggested that the patricii should meet for the purpose. From this time onwards the electors felt no obligation to meet except on the suggestion of the Senate.^[95]

The collegiate principle of the regal interregnum and the use of the lot^[96] had both disappeared; the agreement of the patrician senators took the form of the election (creatio)^[97] of a single interrex (prodere interregem). This magistrate nominated his successor, as the consul nominated the dictator,^[98] each succeeding interrex holding office for five days. There was no limit to the number that might be created, the interreges varying from the minimum of two to the known maximum of fourteen;^[99] but there must be at least two, the first being incapable of holding the consular election, probably because he was regarded as having received the auspicia irregularly. The qualifications for the interrex were, that he should be a Patrician^[100] and a senator, and the instances seem to show that he was invariably chosen from the past holders of curule office.^[101] The first interrex was no doubt guided by the wishes of the Senate, or of the patres, in the choice of his nominee, and the whole list may have been prepared before his appointment. With the creation of the highest regular patrician office, i.e. with the election of a single consul, the interregnum necessarily came to an end and the interrex retired.

The reappointment of a chief magistrate called the people into life again; and, as a rule, it perpetuated itself by perpetuating the magistracy. There was, indeed, one large section of the people which had a continuity of existence as a corporation—this was the concilium of the Plebs with its presidents, the tribunes. From the year 287 this concilium was an independent legislative sovereign, and nothing more clearly marks the theoretical dualism of popular sovereignty at Rome than the fact that one parliament could continue to exist while the other, the comitia in its various shapes, was dormant. The division of executive, judicial, even of deliberative power, is not uncommon in governments of the mixed type; the division of unlimited legislative authority is rarer and nowhere so clearly marked as in Rome; for an act of parliament did not require the co-operation of the two assemblies—the separate fiat of each had the force of law.^[102] It is true that in practice this fundamental dualism was not acutely felt, for the individual elements of the Populus and the Plebs were to all intents and purposes the same. We may emphasise the practical similarity and the theoretical difference best by glancing at the two assemblies of the tribes. Except in elective matters they differed hardly at all in the sphere of their competence—each was a legislative and judicial assembly. But they were under the presidency of magistrates of different kinds, and this caused a slight difference in their constitution. When the tribunes of the Plebs summoned the people by tribes, the members of the few patrician families did not attend; when the consul or praetor summoned the people by tribes, the Patricians could be present.^[103] A fundamental distinction in theory here produces little effect in practice.

While this dual sovereignty—harmless except for its incidental effect of the preservation of the tribunate—was a result of the course taken by the evolution of plebeian privileges, a far more serious consequence was produced by what we noticed as the second leading idea in the Roman constitution's period of growth,^[104] the weakening of the magistracy. This weakening—partly the result of a struggle for freedom, partly of accidental circumstances such as the distractions of war—from the first assumed a form which prevented Rome from ever expanding into a democracy. The early Greek states adopted the system of weakening the sole magistracy, first by dividing its functions amongst several holders, and then, when this was not sufficient, by deliberately taking powers from them and giving them to carefully organised popular bodies. In Rome the principle of division was not wholly unknown; thus the censorship and praetorship take over some of the functions of the consulate, but the principle of wholesale transference was entirely absent; even the usurpation of capital jurisdiction by the people was modified by the condition that they could meet only on the summons of a magistrate. The principle of weakening adopted at Rome was that of the increase of the number of magistrates, without any essential alteration of the character of the magistracy. The increase was effected partly by a consistent application of the principle of colleagueship, partly by the setting up of new powers in conflict with the old. The result was chaos. In the developed constitution there were twenty annual magistrates—ten tribunes, two consuls, eight praetors—each armed with the power of passing valid acts of parliament, and of vetoing the resolutions of his colleagues and inferiors. It is true that there was a legal subordination amongst them; the consul was inferior to the tribune, the praetor to the consul; and the rigorous application of law would have reduced the Roman constitution to an oligarchy of ten. As a matter of fact, the tribunate was too early enlisted on the side of the nobility to think of pressing its powers; dissension reigned within the college, and the history of the collective magistracy was one of perpetual conflict and therefore of weakness. In this weakness the people shared, for they were wholly dependent on the magistracy. In shaking the authority of their representatives they had shaken their own; and certain radical defects in the popular organisation, which we shall discuss when we consider the assemblies more in detail, added to their incapacity to rule. Since the guidance of magistrates and of people was equally impossible, and central government must reside somewhere, its fitting place was not unnaturally sought in the single experienced, permanent, and deliberative body in the state, the Senate.^[105] The assumption of the reins of government by a power, which as an independent authority was not contemplated in the original constitution, necessarily gave rise to a body of constitutional custom by the side of the older constitutional law. The applications of this new code can only be estimated by a more detailed treatment of the three factors of government—the magistracy, the people, and the Senate.

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1. Ulpian Reg. v. 8 "conubio interveniente liberi semper patrem sequuntur; non interveniente conubio matris conditioni accedunt, excepto eo qui ex peregrino et cive Romana peregrinus nascitur, quoniam lex Mensia ["Minicia" has been read in the Veronese palimpsest of the parallel passage of Gaius i. 78, ed. Krueger and Studemund] ex alterutro peregrino natum deterioris parentis conditionem sequi jubet."
2. Or, in the Principate, an administrative act. See the section on the powers of the Princeps.
3. p. 6.
4. Beloch Der Italische Bund pp. 101, 102.
5. Tac. Ann. xi. 25; Beloch op. cit. p. 78. According to Beloch (l.c.) a comparison between the ante-imperial and post-imperial census is vitiated by the fact that the aerarii were excluded from the former, included in the latter. See the section on the censor.
6. Lex Acilia Repetundarum 1. 76.
7. Cic. pro Balbo 10, 25 "quod iis . . . liceat, si populus Romanus permiserit, ut ab senatu, ab imperatoribus nostris, civitate donentur."
8. Cic. Brut. 20, 79; pro Balbo 21, 48.
9. See the section dealing with the comitia.
10. Suet. Aug. 40; Senec. de Vit. Beat. 24.
11. It implied the imperium. At Rome these magistrates would be consul, praetor, dictator, or interrex; in the provinces the governors.
12. Gaius iv. 16.
13. "Praetor addicit libertatem." See Cic. ad Att. vii. 2, 8.
14. For the censor as such had no power to confer freedom (Mommsen Staatsr. ii. p. 374). Cicero (de Orat. i. 40, 183) mentions the juristic controversy whether the slave was free from the moment of the announcement or from the lustrum, which gave validity to the censorian ordinances. Servi publici were manumitted by the magistrates, but whether by the consul only or by any magistrate is unknown (Momms. Staatsr. i. p. 321). The greatest instance of state emancipation is that of the Volones in 214 B.C. (Liv. xxiv. 16).
15. In the first case it is called directa libertas (Dig. 40, 4, 35), in the second libertas fidei commissa (Dig. 40, 4, 11).
16. Theophilus (i. 5, 4) calls them [Greek: physikoi tropoi eleutherias].
17. Suet. Claud. 24 (Claudius said that App. Caecus, censor in 312 B.C., had chosen the sons of libertini for the Senate) "ignarus, temporibus Appii et deinceps aliquamdiu, 'libertinos' dictos, non ipsos, qui manu mitterentur, sed ingenuos ex his procreatos."
18. Justin. Inst. i. 4 "qui statim ut natus est liber est"; Cic. de Nat. Deor. iii. 18, 45 "in jure civili, qui est matre libera, liber est." This is the sense in which Cincius (ap. Fest. p. 241) and Livy (x. 8) declare patricius to have been originally equivalent to ingenuus. See p. 5.
19. The s(ine) p(atre) filii of Gaius (i. 64) and Plutarch (Qu. Rom. 103) was a conjecture of the jurists based on the abbreviated form of sp(urii) filii (Momms. Staatsr. iii p. 72 n. 4). Spurii filii was the official designation, while liberi naturales denoted the natural relationship to the father (Meyer Der römische Concubinat).
20. p. 35.
21. p. 131.
22. p. 45.
23. p. 98.
24. Lex Coloniae Genetivae (a foundation of Caesar's in 44 B.C. at Osuna in Spain) c. 98 "Quamcumque munitionem decuriones hujusce coloniae decreverint . . . eam munitionem fieri liceto, dum ne amplius in annos singulos . . . operas quinas . . . decernant."
25. The other chief personal burdens are guardianship (tutela) and serving on juries; but the consideration of both belongs rather to civil and criminal than to public law.
26. p. 69.
27. p. 74.
28. p. 73.
29. Liv. xxxiii. 42 (196 B.C.) "Pecunia opus erat, quod ultimam pensionem pecuniae in bellum conlatae persolvi placuerat privatis." Cf. v. 20 and Plin. H.N. xxxiv. 6.
30. Cic. de Off. ii. 22, 76 "Paulus tantum in aerarium pecuniae invexit, ut unius imperatoris praeda finem attulerit tributorum"; Plutarch, Paul. 38.
31. Lex Acilia Repetundarum c. 79; amongst the rewards granted to a Latin who prosecuted successfully under this law are "militiae munerisque poplici in sua quojusque ceivitate vocatio immunitasque."
32. Cic. pro Caec. 34.
33. Cic. l.c.; de Orat. i. 40.
34. Cic. pro Caec. 34; Dionys. iv. 15
35. p. 32.
36. Eisele Beiträge zur römischen Rechtsgeschichte p. 205.
37. Gaius i. 159-162; Ulp. xi. 10-13.
38. p. 31.
39. For the form of deditio see Liv. ix. 10; App. de Reb. Hisp. 83. The references are to the two great historic instances at the Caudine Forks (321) and Numantia (137).
40. Liv. xxxviii. 42 (188 B.C.) "eo anno L. Minucius Myrtilus et L. Manlius, quod legatos Carthaginienses pulsasse dicebantur, jussu M. Claudii praetoris urbani per fetiales traditi sunt legatis, et Carthaginem avecti."
41. ib. v. 36; Suet. Caes. 24.
42. p. 138.
43. p. 91.
44. Gaius i. 159.
45. Cic. pro Balba 11, 28; pro Caec. 34, 100.
46. p. 55.
47. Ulp. Reg. xi. 13 "per quam, et civitate et libertate salva, status dumtaxat hominis mutatur." Cf. Gaius i. 162.
48. p. 32.
49. i.e. by adrogatio, see p. 32.
50. Justin. Inst. i. 12, 5 "postliminium fingit eum qui captus est semper in civitate fuisse"; Gaius i. 129 "hi qui ab hostibus capti sunt, si reversi fuerint, omnia pristina jura recipiunt."
51. p. 18.
52. Cic. pro Mur. 12, 27 "mulieres omnes propter infirmitatem consilii majores in tutorum potestate esse voluerunt; hi invenerunt genera tutorum, quae potestate mulierum continerentur."
53. By the jus postliminii; see p. 140.
54. Plaut. Capt. Prol. 34.
55. Liv. x. 42, 46.
56. Caesar B.G. iii. 16.
57. Polyb. xxx. 15 (Paulus) [Greek: pente de kai deka myriadas anthrôpôn exandrapodisasthai.]
58. Strabo xiv. p. 668.
59. Marquardt Privatleben pp. 135 sq.
60. Appian B.C. i. 8.
61. Gaius in Dig. 50, 17, 133 "melior condicio nostra per servos fieri potest, deterior fieri non potest."
62. Gaius iv. 69-74; Justin. nst. iv. 7.
63. Cic. Part. Orat. 34, 118; pro Cluent. 63, etc. As, however, the master's consent had to be obtained, the evidence and torture of slaves in the public courts were rare. In domestic jurisdiction the inquisition on slaves was held before a family consilium.
64. Gaius iii. 210, 217, 222, 223.
65. Cato R.R. 5; Dionys. vii. 69.
66. Cic. ad Fam. iv. 12; Tac. Ann. xiv. 42.
67. Liv. xliii. 16; Gell. xiii. 13. For servi publici in the municipal towns see Lex Coloniae Genetivae c. 62.
68. Actor publicus, in Rome (Tac. Ann. ii 30); in the municipal towns (Plin. Ep. vii, 18, 2).
69. Libertinus describes the freedman's political position, libertus his relation to his master.
70. Ulp. in Dig. 1, 16, 9, 3.
71. Macer in Dig. 48. 2, 8; Paul. Sent. v. 15, 3.
72. Ulp. in Dig. 2, 4, 4, 1 "Praetor ait 'parentem, patronum, patronam, liberos parentes patroni patronae in jus sine permissu meo ne quis vocet.'"
73. Gaius iii. 40-44.
74. Ulp. in Dig. 38, 2, 1, 1. Mommsen (Staatsr. iii. p. 433) thinks that the author of the change was the famous P. Rutilius Rufus, consul 105 B.C.
75. Suet. Caes. 48; Val. Max. 6, 1, 4. Willems (Droit Public i. p. 125 n. 8) remarks that there is nothing to show that this power was exercised over justi liberti. The freedmen so punished may have been informally manumitted. For the relegation of a freedman by his patronus see Tac. Ann. xiii 26.
76. Cf. Plut. Poplic. 7. Plutarch, in this story of the imaginary freedman Vindicius, represents his class as having no voting rights at the beginning of the Republic. Appius Claudius (312 B.C.), he says, first gave them [Greek: exousian psêphou]: but he does not state the assemblies in which this right was exercised.
77. See the section on the censor (p. 223).
78. Liv. ix. 46.
79. ib.; Val. Max. ii. 2, 9. Nothing is said about their division into classes; according to the arrangement of the reformed comitia centuriata (see the section on the comitia), this restriction to four tribes would have given them the command of only forty centuries.
80. Liv. xlv. 15.
81. Auct. de Vir. Ill. 72 (M. Aemilius Scaurus) "consul legem de sumptibus et libertinorum suffragiis tulit"; Willems Droit Public Rom. p. 123.
82. Dio Cass. xxxvi. 25.
83. Liv. Ep. 84.
84. Exceptions due to the stress of times are mentioned for the years 296 (Liv. x. 21) and 217 (Liv. xxii. 11). Even in the social war they formed cohorts separate from the legions.
85. First mentioned in 217 B.C. (Liv. xxii. 11).
86. See the section on the magistracy (p. 184).
87. e.g. the institution of the censor, praetor, curule aediles, and (although they are not a part of the developed constitution), the consular tribunes.
88. p. 121.
89. Cic. ad Att. ix. 9, 3 "in libris (i.e. the augural books) habemus non modo consules a praetore, sed ne praetores quidem creari jus esse."
90. p. 47.
91. p. 47.
92. See the section on the magistracy (p. 165).
93. Cic. de Leg. iii. 3, 9 "ast quando consoles magisterve populi (i.e. dictator) nec escunt, auspicia patrum sunto, ollique ex se produnto qui comitiatu creare consules rite possint"; ad Brut. i. 5, 4 "dum unus erit patricius magistratus, auspicia ad patres redire non possunt"
94. In 43 B.C., on the deaths of Hirtius and Pansa, this communication could not be made in time. Hence the extraordinary measure of appointing two privati with consularis potestas to hold the election for the consulship (Dio Cass, xlvi. 45).
95. The senatus consultum containing this suggestion might be vetoed by one of the tribunes. Ascon, in Milon. p. 32 "dum . . . Pompeius . . . et T. Munatius tr. pl. referri ad senatum de patriciis convocandis qui interregem proderent non essent passi."
96. p. 47.
97. Liv. v. 31, 8 "interrex creatur M. Furius Camillus."
98. The technical expression prodere interregem refers in Republican times, not only to the appointment of the first interrex by election, but to the nomination of each of the other interreges by his predecessor (Liv. vi. 41; v. 31).
99. Liv. vi. 1; viii. 23.
100. Cic. pro Dom. 14, 38, quoted p. 131.
101. Willems le Sénat ii. pp. 14, 16.
102. p. 126.
103. See Appendix on the comitia tributa.
104. p. 89.
105. The power of this body was much increased by the long wars waged in West and East; but its ascendency was assured before these wars began. See the section on the Senate.