Roman Public Life/Chapter 7

by Abel Hendy Jones Greenidge

CHAPTER VII

THE INTERNATIONAL RELATIONS OF ROME AND THE INCORPORATION OF ITALY

The peoples of Greece and Italy offer, amidst many general points of similarity, some striking differences in their conceptions of international relations. The pan-Hellenic sentiment, which created a shadowy law of nations, has no pan-Italic counterpart. Outside the Greek city-state there was but the sentiment of nationality to create rules for human conduct; but, for this very reason, the rules, when created, were of pan-Hellenic validity. In Italy we get narrower but closer groupings; its history is the history of leagues, and the inevitable result of this more concentrated life was a closeness of international ties between the federated members which stood in marked contrast to the vagueness of the relations between the isolated groups.

The ties of religion and of ethnic affinity, as expressed in an obvious similarity of institutions, were, in Italy as elsewhere, the strongest connecting forces between states; but in Italy they were but the first rude ligaments that gave place to a stronger political bond and that crumbled to pieces when the more enduring chain had been forged. The, festival of the Alban Mount became to the Latins, as the sacred centre of Volsinii to the Etruscans, but the religious symbol of a lasting league. Beyond the limits of the league the national and religious sentiment was weak. There was no Delphi to direct the Italian peoples, and no Olympia at which they might meet.

This isolated grouping of the Italian peoples may have been partly due to the great mixture of the populations of Italy south of the Alps and south even of the Apennines; but the earliest Italian history reveals the fact that even the closely-related races of Latins, Umbrians, and Sabellians were not connected by much closer ties of an international character than those which bound each to the Etruscan, the Iapygian, the Gaul, and the Greek. It is true that with the progress of time something like an ethnic sentiment was created in the purely Italian group, with vast consequences to the history of the world. After the Umbrian power, which had once extended from sea to sea, had been weakened, on the left by the Etruscan, on the right by the Celt, Rome becomes the great frontier power, the bulwark of the group of blood-related nations against the foreign-speaking Tuscan and the Gaul whose kinship with herself she had forgotten; but the relation soon became political, and, therefore, more than international. That aggregation of vague human sentiments, which is called International Law, was not juristically stronger within the sphere of the blood-related than it was within the sphere of the Italian group of peoples.

Within this wider sphere of humanity, that was not yet "Italian," there are traces of the observance by Rome of customs relating to the conduct of war and to negotiations for procuring peace—customs which by their very existence show that, though the early Roman employed the same word to designate the stranger and the enemy, a state of war was not considered as the permanent relation even between hostes; which prove, by their elaboration, the antiquity of some sense of international obligation, and which exhibit, by the constancy with which they were applied, the existence of reciprocal forms and duties owed by the hostile state to Rome. The functions of the Fetiales, the priestly ambassadors (oratores)^[1] who demand reparation, declare war and ratify a peace, seem never to have been confined to those peoples with whom Rome had treaty relations, but to have been extended to any nation which had not by specific acts waged war on Rome. Four of the priestly guild of Fetiales were appointed to seek redress. These elected one of their number to become their representative, to be for the time the "ratifying father of the Roman people" (pater patratus populi Romani). At the borders of the offending tribe the pater with many imprecations called Jupiter to witness that the grievance was established, the demand reasonable. Three times did he make the same appeal—to the first sojourner he met in the stranger's territory, to the sentinel at the gate, and to the magistrate within the walls. Thirty days were allowed for the reply; on the first of these the standard was hoisted on the citadel of Rome, and the burgess army gathered for the threatening war. If an appeasing answer were not returned within these days of grace, the pater again set forth and launched a charred spear (the prehistoric weapon of hardened wood) into the territory of the offender, with words setting forth the menace of war.^[2] When the struggle was over it was he who struck the peace and the sacrificial victim with a flint-stone which symbolised the watchful Jupiter (Jupiter lapis).^[3] The sanctity of envoys, other than these priestly messengers, was as rigorously observed in the Italian as in the Greek world. A violent death on an embassy was a martyrdom deserving of immortality, and the ancient Rostra in the Comitium showed a group of statues erected to those who had met their fate in the cause of peace.^[4] The neutrality of ambassadors was exacted with equal care, and the disaster of the Allia might be looked on as a retribution for the impious precipitancy of the Fabii who, forgetting their sacred character, fought in the ranks of Clusium against the Celtic hordes.^[5]

In the agreements made by generals and envoys with a foreign people, the idea, common to most primitive minds, that it is the oath which makes the promise binding is strikingly present. We have already touched on the vast constitutional import of this conception in its connexion with the question, posed but never completely answered by the too patriotic jurists: "Who could take the oath on behalf of the Roman people?" But the theory which on the whole prevailed, that it could not be taken by a general in the field, not only nullified the promise so made and rendered it a mere agreement (sponsio), valid between citizens but not between strangers, but exposed the rash swearer to the extremest penalties. With a strange inconsistency of judgment it was held that the oath, which was no oath, laid the guilt of perjury on the conscience of the people, unless the man who had caused the people unwittingly to sin was offered up as an atoning sacrifice. Naked and bound, like the sacrificial human victim of prehistoric times prepared for the altar, the imperator was surrendered to the offended people. It is not surprising that the latter—whether Samnites, Spaniards, or Numidians^[6]—refused to take the worthless gift from the hands of the pater patratus, and preferred to continue the conflict with a people still convicted of sin. The individual oath to return, made by a prisoner of war released on parole, though binding on his soul alone and, as a religious obligation, not punishable by the civil arm, was enforced by the public conscience. One—others said more than one—of the Roman captives sent by Hannibal after Cannae to negotiate an exchange of prisoners declined to return on the negotiations falling through. The pretext was that they had revisited the camp of the conqueror after the oath had been taken. Tradition varied as to the punishment imposed by Rome; some spoke of a summary arrest and enforced return to the Phoenician camp, others of a degradation by the censor and of a public detestation that drove the perjurer to suicide.^[7]

Such are some of the isolated specimens that have been handed down to us of rules of international right which Rome thought due to every nation. But, apart from such universal duties, the Roman mind, with its simple dichotomy of the world into enemies (hostes)^[8] and friends (amici), recognised varying degrees of obligation as due to either class. The hostes were all states or individuals with whom Rome had no treaty relations. With these there was no presupposition even of constant diplomatic relations, and their absence was symbolised by the manner in which envoys from such states were received. The tradition of "speaking with one's enemy in the gate" was rigorously preserved to the end of the Republic, and the Senate had to meet a messenger from the enemy outside the walls.^[9] The friends of Rome were those with whom she had any relations that approximated to a federative character. There might be no definite treaty, no specified interchange of obligations; but the vague term amicitia with kindred titles of affection was applied to the vaguest association as well as to the closest alliance with Rome; it was indifferently a symbol of the greatest independence or of the practical subjection of the contracting state. The members of the military symmachy in Italy could share this title with distant Carthage,^[10] and even the barbarous Aedui are "kinsmen and brothers" of the Roman people.^[11] Even in the case of these communities the perpetual representation of mutual interests by means of permanent ambassadors—an institution still in its infancy in the seventeenth century of our era—was naturally unknown; but their recognition as friends granted their envoys or representatives an entrance and an audience of the Senate within the walls.^[12]

Closer relations between Rome and her "friends" were generally conditioned by ethnic and their corresponding religious ties. But the foreign element in early Rome shows that this was not universally the case. The rape of the Sabine women in its least significance reveals the fact of the close tie of intermarriage between Rome and a non-Latin community; the first treaty with Carthage reveals commercial relations, which were accompanied by some form of international jurisdiction, with a Phoenician power.^[13]

The first, because the most universal, ties which attract our attention as based on treaty relations are those of commerce. Commercial treaties with the foreigner led, in the very infancy of Roman history, to the development both of common courts and of a common code.

In the later Republic and in the Empire we have frequent mention of a civil court which was believed to have had an international origin. Attempts have been made to assign to this court of recuperatores a purely Roman source;^[14] but its essential peculiarities—the large uneven number of jurors, three or five, when the ordinary civil courts knew but one; the rapidity and simplicity of the procedure; the formula framed by a magistrate and not taken from the legis actiones of the civil law—are best explained as survivals of a time when it was a mixed court of international jurisdiction.^[15] The two or four jurors probably represented the contracting states in equal proportions, the third or fifth may have been an arbitrator chosen from another community; the magistrate who gave the formula would have been an official of the town in which the mixed court sat.

But the formula implied a system of legal principles, and these could not easily be furnished by the civil law (jus civile) of each contracting state. It was not Roman pride that prevented the foreigner from participating in her native law; it was the unwillingness of the foreigner to be made subject to a code characterised by excessive cumbrousness, by danger and by delay, and the counter-objection of the Roman to be the victim of similar disadvantages in the contracting state. No merchant, to whom time meant money, would adopt the cumbrous form of conveyance known as the mancipatio, when ownership could be acquired by the simple transfer (traditio) known of all nations; none would care to repeat a formula (to be learnt only of the Roman pontiff), the least error in the utterance of which was sufficient to extinguish his claim; and the symbolic acts performed before the praetor, though possibly dear to the Roman mind, could not have been attractive to the foreigner. Convenience dictated a compromise, and this was found in the gradual collection of a body of rights (jus) from the customs of "the world" (gentes) as known to the Romans. This jus gentium, or body of rights possessed by man as a citizen of the world, was a code of private international law, and it cannot be regarded as being even purely Italian. A nation that borrowed its alphabet from a Chalcidian city, that imitated the military organisation of the Hellenes, that traded in the sixth century with Sicily, Sardinia, Libya and Carthage, must have been deeply imbued with the customs of the Greek and Phoenician world. Nor was this code a growth of Rome's supremacy, for her commercial preceded her political greatness. Its origin dates back to a time probably anterior to the Republic, certainly far earlier than the institution of the praetorship. We have already noticed how for more than a century the same civil judge administered both laws, that of the state and that of the gentes,^[16] and how the jus civile was insensibly modified by contact with its younger relative.

But closer relations than those of commerce might exist between Rome and states connected with her by neighbourhood or kindred. The interchange of the rights of private law, of ownership and of marriage, which the Greeks called ἰσοπολιτεία, was a natural out-growth of the Italian tendency to close political association. Such communion rendered each member of the contracting states in private law a civis of the other; the conubium carried with it the patria potestas and all the family rights that flowed from this power; the commercium allowed the citizen of the contracting state to own Roman land, to convey property by Roman forms, to make a contract by the ceremonial of the sponsio, to inherit from a Roman or to make a Roman his heir, while it gave the citizen of Rome corresponding rights in the alien city. There could be no question here of mixed tribunals or of private international law. The courts of each state were fully competent; if we may judge from the early relations of Rome with the Latin cities, the place in which the contract had been concluded, or, in other words, the forms of the contract, determined the competence of the court.^[17]

Still more definite bonds of union than these relations of private law (although often their primary condition) were certain political creations which made the ties between the states something more than international. It was a nucleus approaching a federal government which gave the first impulse to the extension of Roman power in Italy. Rome, as known to us in legend, is never quite a city-state. She is an offshoot of Alba Longa, the titular head of the Latin league. Tradition says that her conquest of her mother city led to her occupying a singular position with respect to the thirty cities of this league. She was one of the contracting parties, the cities were the other; she was the equal, not the member, of the group. The acceptance of this position by the confederate cities shows their eagerness for the protection of the frontier town; but the protectorate became burdensome, a war ensued, and Roman rule was shaken off only to be reimposed on firmer lines by the strong hand of the Etruscan dynasty represented by the Tarquins. Rome now became one at least of the religious centres of the league, and the Diana of the Aventine symbolised the lasting union of the Latin folk.^[18] The expulsion of the kings, while it stripped Rome of territory, shook for a time the allegiance of the league, and it was not until 493 B.C. that the old conditions were renewed; for the details that might in historical times be read in the treaty attributed to Sp. Cassius were doubtless but a replica of the old terms of the alliance. Eternal peace was enjoined, mutual support was to be given in war, and each contracting party was to share equally in the booty. The supreme command in war was to be held now by the Roman general, now by the commander of the confederate forces.^[19] But the closest bond was that of ἰσοπολιτεία,^[20] the mutual participation in commercium and doubtless also in conubium, which was accompanied by the proviso that the court of the state, in which the contract had been concluded and the case was therefore tried, should give speedy satisfaction to the claimant from each community.^[21] Reciprocity such as this was naturally accompanied by freedom in choice of domicile. The Roman settled in the Latin city and the Latin in the Roman retained the private rights of both communities. It is doubtful whether at this period the transference of residence was accompanied by a share in the voting rights of the state in which the immigrant sojourned.^[22]

To this association a third factor was soon added in the Hernican league.^[23] The extension of the confederation beyond its ethnic limits was a grand strategic move; for by the inclusion of the Hernici, Rome now presented a compact chain of fortresses against her enemies of the east and south, the Aequi and the Volsci. Their military importance explains why the newly admitted members were raised to the level of the older allies. They boasted the same reciprocity of private rights with Rome, they shared in a third part of the spoils of war, and they joined with Romans and Latins in the work of common colonisation.

This colonisation was at once a military and social measure, and the means by which the league extended its geographical and political limits. The custom of war, which permitted the Italian tribes to annex a third of all conquered land, had ever been used as a means of expansion by the powerful league. And this expansion was a very real one; for the Latin colonies (coloniae Latinae), as they were called, were full members of the society that gave them birth. Such towns as Suessa Pometia, Cora, and Velitrae had been military outposts in the territory of the Volsci; and now the Volscian, the Rutulian, and even the Etruscan were oppressed with the weight of new foundations by the three great powers. But the year 384 seems to mark a strange and unaccountable break in the history of this extension. Of all the Latin colonies founded after that date, but one is mentioned as a member of the confederacy—a circumstance which has led to the conclusion that Rome (whether with or without the consent of the other members) had cut off all future joint foundations from the religious and federal privileges of the league. Otherwise the consequences of this exclusion were not great; the new towns were military allies of the league, not of Rome, and their citizens still possessed those private rights which always remained of the essence of latinitas. Forty-seven cities—partly old Latin towns, partly Latin colonies earlier than 384—still participated in the Latin festival; that within this circle a distinction was drawn between thirty voting and seventeen not-voting members is an insecure conclusion based on the attempts of the annalists to reconstruct the traditional number of thirty Latin cities; there may still have been thirty votes, but these may well have been distributed in some way over the forty-seven cities of the league. That the closing of the Latin confederacy was due mainly to Roman pressure is perhaps shown by the series of dangerous revolts amongst its cities, which often sided with their ancient enemies the Volsci. The Hernicans were as eager to shake off the yoke; but Rome emerged from both crises with her power strengthened and her commonwealth enlarged. The latter result was due to a renewed employment of her old device of absorption. Tusculum in 381, and Satricum not long afterwards, had their commonwealths destroyed, and were forced, as a penal measure, to accept the full or partial Roman citizenship.^[24] At the close of the struggle in 358 the leagues were renewed and the relations of Rome with the two groups of states remodelled, probably on harder terms. In the Samnite war which followed, the Latin cities first clung to Rome, for they preferred a native to a Sabellian hegemony; but Rome's rapid conclusion of a treaty of peace and alliance with the Samnites, which the league was asked to accept and not to ratify, was taken as the final proof of actual subjection concealed under the name of a hegemony. The Latins made their last demands; they gave up their position as a military confederacy, but they did not wish to be absorbed into the body politic of Rome. They asked for the golden mean—a system of federal government, but one that should still preserve the fundamental distinction between Rome and the confederate cities. One of the consuls was to be a Roman, the other a Latin, and half the Senate was to be chosen from Latium. But the civic feeling was too strong at Rome; she would not herself surrender the communal constitution which she had so often wrested from others; she rejected the alternative which would have paralysed her power as a conquering state and made of her but a federal capital. Her "No!" to the Latins was one of the turning-points in the history of Italy and of the world.

The battles of Veseris and Trifanum gave her the victory, but she was sorely puzzled as to the use to be made of it. The league was to be broken up, its members isolated, and this work of disintegration was carried through with thoroughness; not only were the federal assemblies (concilia) abolished, but no right of intermarriage or of commercial intercourse (jus conubii et commercii) was permitted between the cities.^[25] But how to deal with the individual communities was a far harder problem. The incorporation which had been the punishment of isolated revolt could not be applied to the disjecta membra of a whole league, for it would have changed the city-state into a nation. Hence the plan adopted was a compromise between the old policy of absorption and a new principle—that of alliance. Aricia, Pedum, and Lanuvium lost their independence and received the full Roman franchise; while Tibur, Praeneste, Lavinium were compelled to conclude separate treaties (foedera) with Rome, and formed the nucleus of the ever-growing class of civitates foederatae. Thirty years later (306 B.C.) a similar fate befell the remaining league of the Hernici. Their loyalty had not stood the test of the second Samnite war; but there were degrees of guilt amongst the cities. Anagnia, the chief centre of the revolt, and other incriminated towns, were given merely the private rights of citizenship; the full citizenship was indeed offered to the three loyal towns of Aletrium, Ferentinum, and Verulae, but, on their expressing a preference for their own local constitutions and codes, they were permitted to retain an autonomy guaranteed by separate treaties.^[26] The break up of the Hernican league was only an incident in a triumphant career of conquest that was never followed by annexation. The Samnite wars and the struggle with Pyrrhus had ended in the acknowledgment of Rome's supremacy by every nation south of the Macra and the Rubicon. The three civilisations of Greece, Tuscany, and Italy furnished her indifferently with allies; the town and the tribal union were alike represented in her symmachy. Tibur and Praeneste in Latium, Aletrium and Ferentinum amongst the Hernici, Volaterrae and Clusium in Etruria, Iguvium in Umbria, the Picentes, Marsi, and Peligni amongst the Sabellians, and Greek cities like Neapolis in Campania or Rhegium amongst the Bruttii, are types of the states and peoples that she numbered amongst her socii.

The effect of this unification, and of the tendencies which had preceded it, was to divide the inhabitants of Italy into two broad classes—those of citizens (cives) and those of allies (socii) of Rome. The first class (far the smaller numerically) represented the earlier effort at incorporation; the second was the consequence of the later policy which founded a military league. Minuter distinctions of rights, which necessitate cross-divisions in the classification of the states, sometimes obscure this fundamental analysis; but it was never lost sight of and was the guiding light to the Roman lawyer, as it is to us, in his path through the labyrinth of the complex organisation of Italy.

The cives of Rome bear this name either in a full or a partial sense; they may be citizens with voting rights or citizens in private law alone (cives sine suffragio). If we fix our attention on the first of these classes, we find that historically there were two modes in which the civitas was gained by a commune outside the city. It might be due to the incorporation of an already existing state, or it might be the consequence of the planting of a Roman colony. The merging of some of the Latin communities in Rome^[27] has already furnished instances of the former mode of conferment; the Roman colonies which illustrate the second (coloniae civium Romanorum) were outlying fragments of the Populus, planted as a defensive garrison on the third of the conquered land, which was the legitimate spoil of the invader. A social was from the first combined with the military object; but the enforced exodus of portions of the burgess body on some occasions^[28] proves that, in this form of colonisation, the interest of the state came before that of the individual. It was, in fact, a military levy ordained by law, although voluntary profession usually took the place of the compulsory summons of the regular dilectus. In military array, with standards flying,^[29] the squadron marched to the appointed place under the leadership of the commissioners appointed by the people. When a new town was to be founded, or an old one reconstituted, it was done with the imposing ceremonies that marked the birth and enlargement of Rome. After the will of the gods had been tested and happy omens gained, the commissioners, with veiled heads and loins girt up, guided a plough, to which were yoked an ox and a cow. They thus drew the pomerium of the state, only staying the furrow where the gates of the city were to be.^[30] The greater number of these settlements of Roman citizens were for the protection of the Italian coasts, and the members of the maritime colonies (coloniae maritimae) were allowed exemption from active military service.^[31] Few in numbers (often but a handful of 300 men), and settled in an already existing political society, the colonists formed a privileged patriciate amongst its older members. The town-council, and such subordinate magistrates as Rome allowed them to possess, were probably chosen from the new settlers alone; but, as the autonomy which they enjoyed was not great, as they possessed no high judicial magistrates of their own, and as their voting power at Rome was more a potential than an actual right, they differed little from the native inhabitants, who as cives sine suffragio came equally under the jurisdiction of the Roman courts and their representatives.

Whether the commune of Roman citizens had had a natural or artificial growth, it was never in early times a true state (civitas). Roman law knew of ἰσοπολιτεία, but not of the closer bond of συμπολιτεία; and the principle that no Roman citizen could be a full member of another state, although in the later Republic it had given place to the theory of the municipal independence of the civis was always maintained in international relations with states of the outer world.^[32] As the negation of state life implied the negation of communal independence, we are not surprised to find that none of these communities of Roman citizens possessed a true civic organisation of its own. We cannot define the rights of their town-councils, we cannot assert the absolute non-existence of popular gatherings for certain purposes; but the absence of the imperium and of a true judicial magistracy is clearly discerned. These communes fell under the immediate civil jurisdiction, originally of the consuls, later of the praetor urbanus. Originally it may have been necessary for every case not settled by voluntary arbitration to be brought to Rome, but the distance of some of these towns from the capital would have soon rendered this principle of jurisdiction impossible. The modern solution, that the judge should go on circuit, could not be thought of in a state where the bench consisted of a single man, and where this individual was prohibited by law from leaving the city for more than ten days during his year of office.^[33] The only alternative was furnished by the favourite Roman device of delegation. The praetor nominated praefects for jurisdiction (praefecti juri dicundo), and these were sent, sometimes as standing magistrates, sometimes perhaps as mere circuit judges, through the Roman towns, which were thence known as praefecturae.^[34] Delegation implies either a division of competence or, in the case of the lower court possessing full jurisdiction, an appeal to the delegating authority. There is no trace of the latter practice at Rome, and a systematic division of authority, although motives of convenience may sometimes have led the praetor to permit it, is inconsistent with the Roman idea of jurisdiction flowing direct from the imperium. Possibly the praetor permitted the praefect to regulate almost every kind of contentious jurisdiction, subject to his own right of summoning any case he pleased from the delegate to Rome. By a legal fiction the courts of the praefecturae were held to be within the praetor's sphere of competence, i.e. within a single milestone of the city; they were, to use the technical Roman expression, judicia legitima. No trace whatever has been preserved of the criminal procedure applied to such communities. The fact that the praefect was the delegate of a civil magistrate would not prove that he was incapable of exercising criminal jurisdiction, for jurisdictio of every kind is latent in the praetor's imperium. All higher jurisdiction was reserved for the people; but there was only one populus Romanus, that of the city of Rome. Hence when the citizen of Ostia or Tusculum was accused of an offence, the penalty for which demanded a popular sanction, we may assume that he could either make the appeal, through a fiction like that underlying the civil jurisdiction, in spite of his local separation from Rome, or that he stepped, or was brought within, the first milestone of the city, the limit inside which the provocatio could legally be made.

The second type of cives are those without the right of suffrage (sine suffragio). There can be little question that the idea of this status was derived from Rome's relations with the cities of the Latin league; in her process of absorption, however, she conferred it on towns to which she did not grant the other typically Latin rights; in this way she made of it an independent status. The Etruscan town of Caere is said to have won this right in 353 as a gift for good service to Rome. After the dissolution of the Latin league in 338 B.C. a group of Campanian townships, Capua, Cumae, Atella, and Calatia, were with (the then Latin) Fundi and Formiae brought into this relation with the now dominant city of Latium;^[35] others nearer home, such as Arpinum of the Volsci, were similarly rewarded or absorbed (303 B.C.),^[36] while the status was imposed as a means of degrading and reducing to impotence rebellious townships such as Anagnia, the leading city of the Hernici.^[37] The motive of the conferment, although it might make a difference to the rights of the towns, produced none in the relations of their respective cives to Rome. The civis sine suffragio was known as a municeps, and the state, all of whose full members enjoyed this status, derived from its occupants the name of municipium. The name of this type of citizen—the "taker up of burdens"—aptly expresses his subjection to the chief duties (munera) of Roman citizenship, such as service in the Roman legions, forced labour in raising defences, the payment of the war-tax (tributum), and his exclusion from the usually corresponding rights of suffrage and of office;^[38] it emphasises the fact, strange to the early Roman mind, of public duties not balanced by public rights, but it contains no implication of the strangest characteristic of the municeps—one almost unknown in ancient legal systems—the possession of a personality in private which is not the result of a personality in public law. The municeps possesses commercium with all its consequences; he possesses conubium with Rome; he is, from the point of view of private law, in every sense a citizen.

This possession of citizenship carried with it as a necessary consequence his subjection to the praetor's court. His home, the municipium, is therefore, equally with the community of full Roman citizens, a praefectura, and the rules of jurisdiction were the same in both classes of states. To the praefects nominated by the praetor were in course of time added others elected by the comitia tributa, and reckoned amongst the minor magistrates known as the viginti-sex-viri.^[39] These latter were the four praefects of Capua, Cumae, and the Campanian coast; but, in regard to the mode of election, there is no difference discernible between the judicial magistrates of the municipia and those of the communities of Roman citizens. Elected praefects visited the municipium of Capua and the Roman colony of Puteoli, while nominated praefects held their court in the colony of Saturnia and the municipal town of Anagnia.^[40]

But the praefect was far from representing the higher functions of government in every municipium. These towns fall into two broad divisions, not according to the rights which they receive, but according to the rights which they retain. The civitas sine suffragio might be granted honoris causa to a state which maintained its complete independence or its communal autonomy. It was thus conferred on Capua, Cumae, Formiae, and Fundi,^[41] and the gift of the partial citizenship under these conditions was a valued privilege. It enabled a Capuan to own Roman land, to settle on the ager publicus, to marry into the noble houses of Rome, and to serve, not in the auxiliary cohort, but in her army or in the legion raised from the municipes. But meanwhile his own magistrate, the meddix tuticus, administers in the Campanian courts the native Sabellian law,^[42] his senate deliberates, and his popular assembly decides. Sometimes, as in the case of Capua, the state is still bound by treaty relations to Rome, and the two conflicting principles of armed alliance and of absorption are for once commingled.^[43]

Yet, in spite of their independence, there is every reason to believe that the inevitable praefects visited these states. We must assume, at least in the cases where autonomy reached the grade which is visible in Capua, that a dual system of law prevailed in these communities; the court and the procedure would follow the form of contract, whether Sabellian or Roman, and the parties might appear indifferently before the Capuan meddix or the Roman praefect. In other cases, where a large measure of administrative autonomy is visible, but where no magistrate with a higher rank than that of aedile is found within the state,^[44] it is possible that Roman law alone prevailed and that the Roman praefect was the only judge.

The lower class of municipia was represented by states "whose whole commonwealth had been merged in that of Rome."^[45] Of this class Anagnia, the degraded town of the Hernici, was a type.^[46] Stripped of all the active rights of citizenship, and under the direct government of a Roman praefect, the members of such towns possessed no personality in public law at all. Their position was that of the free Plebeians previous to their admission to the suffragium and the honores.

The second principle in Rome's Italian policy, first projected after the close of the Latin war and carried to its completion after the struggle with Pyrrhus, resulted in a great military hegemony over states, whose treaty relations enabled them to call themselves the "allies" (socii) of Rome. Collective names were soon devised to indicate the closeness of the union thus formed; at first the confederates were "wearers of the toga" (togati), a name that applied equally to the Latin, Sabellian, and Etruscan. But the introduction of the Greek pallium into the league destroyed this basis of classification; and the later term Italici was evolved, a word whose geographical signification emphasises the idea of a territorial limit to certain rights—one which, as we shall see, was not rigorously preserved, but which marks the distinction, valid alike for the Republic and the Principate, between Italy as the privileged and the provinces as the unprivileged world.

The condition of a conquered town, whether in Italy or the provinces, before its alliance with Rome, is described by the word deditio, a term which implies absolute surrender to the power (ditio, potestas)^[47] or to the honour (fides)^[48] of the Roman people, the two latter expressions being to the Roman mind legally equivalent.^[49] Such a dediticia civitas is in the negative condition of an absolute suspension of rights, and remains in this case until some are given back by Rome with a guarantee of their permanence. Deditio is, therefore, a temporary status, although it might be occasionally prolonged as a penal measure, as it was in the case of the revolted Bruttii after the Hannibalic war.^[50] In Italy, as a rule, the terms that Rome dictated were those of a military alliance, the conditions for membership of this being, firstly, external sovereignty (libertas), as conditioned by the terms and objects of the league;^[51] secondly, internal independence—a condition which the Greek cities called αὐτονομία, and which, in a Latin charter to a provincial town, appears in the form of the permit suis legibus uti;^[52] thirdly, a basis for these rights, as also for the obligations which these states owed to Rome. In dealings, with the extra-Italian world this basis was either a charter (lex data), given by the Roman people and revocable by them, or a treaty (foedus), equally sanctioned by the people but irrevocable, as being sworn to by the two contracting parties; its revocation could only be the consequence of a genuine casus belli. In the first case the state is a libera civitas, in the second a libera et foederata civitas,^[53] or, in its more general and briefer designation, a foederata civitas.^[54] In Italy positive evidence furnishes us only with the foederatae, but the existence of the liberae civitates must be assumed, since, immediately on the beginning of provincial organisation in Sicily, this status is adopted.

In Italy also there was doubtless the distinction between the higher and the lower kind of foedus—the foedus aequum and the foedus iniquum. In all treaties concluded between Rome and cities in her symmachy there was a recognition of partial dependence in the latter; but some of these treaties contained a "suzerainty" clause to the effect that the state in question should "in a friendly spirit respect the majesty of the Roman people." This clause did not diminish the libertas of the state accepting it, but merely strengthened the position of Rome.^[55] It was a characteristic of the iniquum foedus.^[56]

The duties of the federate cities expressed in their name (socii, σύμμαχοι) were primarily the furnishing of requisitions whether in men or ships. The latter were demanded from the Greek cities of the coast, but Italy as a whole furnished the auxiliary land armies of Rome, the togati liable to the levy.^[57] Every state had to keep a register of its effective strength in accordance with a principle of assessment (formula).^[58] The general demands of Rome were specified in the treaties; the special levies required at any given time were dictated by the Senate and consuls.^[59]

Military requisitions necessarily involve pecuniary burdens. But these were all indirect. Each city had complete control of its own finances; no tribute was imposed by Rome, and the antithesis to the socius is the stipendiarius.^[60] This immunity was originally based on the theory of treaty relations; later, when the view had grown up that the tribute paid by the stipendiary states was the result of their precarious tenure as possessores, the Italians were held to be owners of their land. The jus Italicum of the Principate confers on any state to which it is granted quiritarian ownership, and, therefore, immunity from taxation on land.

Enjoyment of their own laws and control of their own courts were other symbols of the autonomy of the allies. Rome could not legislate for the Italian socii, and they were beyond the judicial authority of the Roman magistrate in Italy. But the necessities of social and commercial intercourse rendered it advisable that the Italian allies—more especially the Latins—should be brought into close legal relations with Rome, and the acceptance by the latter of innumerable civil laws of the central state is attested by Cicero.^[61] The Italians are known to have been bound by a plebiscitum concerning loans^[62]—this, however, only made contracts of a certain kind between them and Romans invalid, and may not have demanded their consent; but their formal acceptance must have been required for the Didian law, which extended the sumptuary regulations of the lex Fannia to all the Italici.^[63] The "free" as well as the "federate" city has the right to accept or decline a legislative proposal put before it by the Roman government.^[64] Closest of all to Rome were the Latins. As members of federate cities they were amongst the socii,^[65] and it is only as a class with special privileges that they are distinguished from the latter.^[66] Latinitas had, through the efforts of colonisation, long lost its geographical and ethnic significance. It was the name for a status often accepted by Roman citizens, which combined the anomalies of sovereignty and a partial Roman citizenship. The sovereign rights are those possessed by the socii, the civic privileges were originally those held by the municipia; but it is possible that on and after the foundation of Ariminum and the last twelve Latin colonies^[67] commercium alone was granted, conubium

refused.^[68] The most distinctive privilege of the Latin had been the concession of facilities for acquiring Roman political rights. A Latin who migrated from his town and became a domiciled immigrant (incola) of Rome had retained his civic rights in private law, and gained a limited power of suffrage.^[69] He could even by complete expatriation (exilium) surrender his own civitas and attain the full Roman citizenship. But the conditions subsequently imposed on this right^[70] were evaded, immigration continued unchecked, and there was a danger of the depopulation of the districts from which the exiles came. This evil suggested the later method, which gave the Latins admission to the civitas. The holder of a magistracy in his native town was, by the mere fact of his position, to become a full citizen of Rome. It is improbable that this right replaced the right of exile possessed by already existing Latin towns, and the date of its origin is unknown; but it possibly accompanied the remodelling of Latin rights in 268 B.C., and is henceforth the typical privilege of the Latin colony.^[71] Another mode in which the individual Latin could acquire the Roman civitas was by conducting a successful prosecution under the Acilian and Servilian laws of extortion.^[72]

The freedom of the cities, whether Latin or Italian, seems to have won rigid respect from Rome and her magistrates. The burdens of military service were, indeed, unevenly distributed between the central city and her allies,^[73] while the spoils of war were mainly for the Roman. But it was a shock and a surprise when in 173 B.C. a consul made personal requisitions on the federate city of Praeneste.^[74] The lesson once learnt was only too faithfully followed, and the illegal demands of Roman officials were accompanied by acts of capricious violence.^[75] But the burden of service and the misuse of power were not the only motives urging the allies to seek the civitas of Rome; nor was it merely a sentimental desire to be invested with the Roman name. The citizenship had a positive value both as a protection and a source of gain. The protection against capital or corporal penalties tacitly accorded to Romans by provincial governors could not be claimed by the allies, and, although there is no evidence that Rome, in her final organisation of the Italian confederacy, continued her early policy of inhibiting commercium between the towns, yet citizenship had a commercial value. Ownership of land in the provinces was protected by the praetor and the proconsul, but only when it was held by a Roman. To the Roman trade with the barbarian was secure, to the Italian precarious; and everywhere he had to face the competition of the commercial companies of Roman knights. The grounds of interest coincided with those of sentiment in producing a demand which the progressive party amongst the Romans strove to meet. The first attempt was made through a law of the consul Flaccus in 125 B.C.,^[76] the second by one of C. Gracchus in 121, the latter law probably offering citizen rights to the Latins and Latin rights to the other allies.^[77] The final proposal of Livius Drusus in 91 was probably an unmodified extension of the civitas,^[78] and it was the failure of this measure that led to the Italian revolt. A new suggestion for a solution of the problem of the relations of Rome to Italy sprang from the organisation of the hostile states. A federal capital, Corfinium, now Italica, was created, and a provisional federation of eight states formed, one which was intended ultimately to embrace the whole of Italy. The Roman, or rather Italian, pattern was followed in the new constitution; it possessed two consuls, twelve praetors, and a senate of five hundred;^[79] but both the magistracies and the senate were of a federal type. The issue of the war was to determine whether Rome should remain the leading state or become a mere member of an Italian confederation, although the unlikelihood of the giant city's settling down to this position may have appealed to some of the federal leaders.^[80] Unless a redistribution of territory and population had been effected, Rome would have been the Thebes of the league, and the fate of the Empire would have been in suspense, for a federal government's capacity for imperial rule had yet to be tested. By timely concessions Rome saved her position as the head of the confederacy. By the lex Julia (90 B.C.) all the Italian states that had not revolted were offered the civitas,^[81] and this was followed by the lex Plautia Papiria (89 B.C.), which offered the civitas to the socii and incolae of the allied cities in revolt.^[82] These measures effected a considerable extension of the citizenship, but other means, of which we are ignorant, must have been adopted for the gradual incorporation of communities, many of which still remained for a considerable time in rebellion against Rome.^[83]

The work of incorporation immediately raised two problems. The first was the question of the voting rights of the new citizens. These rights were at first grudgingly accorded to prevent the new citizens swamping the old. The novi cives were enrolled in but eight of the existing tribes.^[84] But this compromise could not last long; redistribution became a party cry, and even the conservatives felt the damage done to their cause by a prolonged opposition to the Italian vote. The measure of Sulpicius (88 B.C.), which distributed the new citizens over all the tribes, was indeed repealed with his other laws; but its principle seems to have been adopted in a decree of the Senate of 84 B.C.,^[85] and the equality of the Roman and Italian vote was henceforth never questioned. The vote itself was not of the importance anticipated. It was, in the first place, rendered ineffective through lack of a system of representation. Even had such a system, planned on a small scale by Augustus,^[86] been realised, it is questionable whether it could have saved the Republic. The Empire had to be garrisoned by professional armies, and these could not be found in Italy. The military and the civil power would in any case have been opposed, and the conflict must have ended in a victory for the former. But, so far as the extension of the civitas did affect future politics, it was only to create a dualism between the Roman proletariate and the Italian country voters. They had different ideals and different leaders. But the former were on the spot, ready for any legislative work, and in the troubled politics that ushered in the monarchy it was they who supported those champions of freedom who replaced senatorial rule by a military despotism. The ideal of the Italian was quiescence; the scattered voters with no corporate organisation were more prone to look to persons than to causes; sometimes there was a wave of municipal enthusiasm, but many an Italian township recognised no leader but its Roman patron, and saw in his success at the polls the highest use to which they could put their suffrage.

The second great problem was that of the future administrative relations of Rome to these incorporated townships. The growth of the municipal idea was not a new one. Even as early as the beginning of the second century B.C. the possibility had been demonstrated of combining active internal independence with the possession of the full Roman civitas. Arpinum had received the full citizenship in 188 B.C., and its citizens vote henceforward in the Cornelian tribe;^[87] but its internal autonomy was not destroyed, for the town was still legislating for itself in 115 B.C.^[88] Meanwhile there are signs that a higher type of organisation was being given to Roman colonies; at least duovirs, who may be duoviri juri dicundo, are found at Puteoli in 105 B.C.^[89] This idea of some political and judicial independence being enjoyed by townships, which had become a part of Rome, was worked out on the grandest scale after the social war; but the turbulent times which followed were not suited to comprehensive municipal legislation, and it is not likely that a definite system, which adjusted local to central powers, was developed before the Augustan period. Something had however been done in Cicero's time. Here and there we find a local constitution remodelled,^[90] and there is evidence that there was already some division of competence between the local magistrate and the praetor urbanus in civil jurisdiction—the defendant being in some cases compelled to give bail (vadimonium) to bring his case to Rome.^[91] This principle of a limitation of the power of the local courts is found fully developed in a lex Rubria which deals with the organisation of Cisalpine Gaul. This district had held an anomalous position from the time of the social war. Although still a province, its towns had been given Latin rights in 89 B.C.^[92] This was interpreted by the democratic party as a forecast of the citizenship, for Gallia Cisalpina was certainly enrolled in Rome by the revolutionary government of Cinna or his successors.^[93] The grant, however, was not approved at the Sullan restoration, and its validity was disputed until Caesar renewed the gift in 49 or 48 B.C.^[94] Two or three years earlier he had busied himself with the creation of an Italian organisation in the Gallic towns;^[95] but, even after his conferment of the citizenship, the incorporation of the district into Italy was not immediately accomplished. It remained technically a province until 42 B.C., when Octavianus gained the consent of the Senate to its "autonomy,"^[96] i.e. to its recognition as a group of Italian townships. It is doubtful whether the lex Rubria belongs to the epoch of the Julian or the Augustan organisation;^[97] but it is practically certain that it extends an already existing Italian system to the new district. The chief characteristic of the system is a division of power between the praetor at Rome and the magistrate in the municipal town. In the fragment of the law which we possess this division is manifested in two particulars. The right of declaring bankruptcy (missio in possessionem) is reserved for the praetor, although the provisional arrest of the debtor (duci jubere) may be ordered by the local magistrate. Again, in the action for the recovery of a loan and in those arising from some other obligations, all cases involving a sum over 15,000 sesterces must be remitted to Rome, the local magistrate having the right to enforce on the parties bail (vadimonium) for their appearance there.^[98] These fragmentary notices are an index to a principle which was doubtless fully elaborated in the Augustan legislation.

A tolerable degree of uniformity was also secured in the political structure of the towns of Italy. It was but a development of the typical Italian constitution of magistrates (magistratus potestatesve),^[99] senate (senatus, curia, composed of decuriones conscriptive), and popular assembly (comitia conciliumve, composed of municipes and sometimes of incolae); and the lex Julia municipalis of Caesar (45 B.C.) ordains a uniform qualification for the local magistracies and senates, and enjoins that the local census shall be taken in conjunction with that of Rome. But, though the general lines of organisation were the same, this uniformity was chiefly the result of growth, not of creation. No effort was made at securing a common nomenclature either for the states or for their officials. Caesar's municipal law shows municipia, coloniae and praefecturae existing side by side,^[100] while inscriptions show titles for officials, such as dictator or praetor, which may be as old as those of Roman magistrates.^[101]

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1. See p. 56.
2. Dionys. ii. 72; Liv. i. 32; cf. Plin. H.N. xxii. 2.
3. Polyb. iii. 25; Liv. i. 24. Yet the ceremonies they describe are different. In that related by Polybius the stone has a passive signification; the priest hurls it from him and prays, "May I only be cast out, if I break my oath, as this stone is now." In that described by Livy, "the pig represents the perjurer, the flint-knife the instrument of divine vengeance" (Strachan-Davidson's Polybius, Proleg. viii.), and Jupiter is here to strike the people that fails in the compact. Possibly the two forms of ritual were used in different kinds of treaties; the first, perhaps, in commercial compacts, the second in agreements that closed a war.
4. Liv. iv. 17; Middleton Ancient Rome i. p. 245.
5. Liv. v. 36.
6. See p. 283.
7. Liv. xxii. 61.
8. Varro L.L. v. 3 "multa verba aliud nunc ostendunt, aliud ante significabant, ut hostis: nam tum eo verbo dicebant peregrinum qui suis legibus uteretur, nunc dicunt eum quem tum dicebant perduellem." Cf. Cic. de Off. i. 12, 37.
9. p. 284.
10. Polyb. iii. 22.
11. "Aeduos, fratres consanguineosque saepe numero a senatu appellatos" (Caes. B.G. i. 33).
12. Cf. p. 284 for this rule and for the exception to it made in 166 B.C.
13. In the first treaty with Carthage two kinds of legal satisfaction are given to Roman traders. In Libya and Sardinia the state guarantees the debt; in the Sicilian cities under the Carthaginian protectorate Romans and Carthaginians are on an equal footing (Polyb. iii. 22).
14. Hartmann (O. E.) Der ordo judiciorum und die judicia extraordinaria der Römer Thl. i. pp. 229 ff.
15. Festus p. 274 "Reciperatio est, ut ait Gallus Aelius, cum inter populum et reges nationesque et civitates peregrinas lex convenit quomodo per reciperatores reddantur res reciperenturque resque privatas inter se persequantur." See Keller Civilprocess p. 36; Rudorff Rechtsgeschichte ii. p. 34.
16. p. 207.
17. In the treaty supposed to be the work of Spurius Cassius and to date from 493 B.C. the following clause was found: [Greek: tôn t' idiôtikôn symbolaiôn hai kriseis en hêmerais gignesthôsan deka, par' hois an genêtai to symbolaion] (Dionys. vi. 95).
18. Dionys. iii. 34, 51.
19. ib. vi. 95; Festus p. 241.
20. Dionys. viii. 70, 74.
21. p. 295.
22. App. B.C. i. 23. Dionysius (viii. 72) speaks of the Latins and Hernicans exercising voting privileges ([Greek: psêphophoria]) in Rome in the year 486 B.C. But it is impossible that they could have been enrolled in the centuries, which was a Roman army list, and no assembly of the tribes had yet received state recognition.
23. Dionys. viii. 69, 72, 74.
24. Livy, by attributing civitas to Tusculum (vi. 26) and calling the Tusculans cives (vi. 36), seems to imply that they were full citizens. In this case the city could not have been from the first a municipium, the name it bears later ("municipium antiquissimum" Cic. pro Planc. 8, 19). Festus, however (p. 127), includes Tusculum amongst the states with civitas sine suffragio, i.e. amongst the true municipia, and we know that Livy (x. 1) uses civitas for civitas sine suffragio. The Satricani are cives Romani in 319 B.C. (Liv. ix. 16). Satricum had formerly belonged to the thirty Latin cities (Dionys. v. 61).
25. Liv. viii. 14 "Ceteris Latinis populis (i.e. other than those with whom special arrangements were made) conubia commerciaque et concilia inter se ademerunt."
26. Liv. ix. 43 "Hernicorum tribus populis, Aletrinati, Verulano, Ferentinati, quia maluerunt quam civitatem, suae leges redditae; conubiumque inter ipsos, quod aliquamdiu soli Hernicorum habuerunt, permissum. Anagninis, quique arma Romanis intulerant, civitas sine suffragii latione data: concilia conubiaque adempta, et magistratibus, praeterquam sacrorum curatione, interdictum."
27. p. 299.
28. Dionys. vii. 13; Plut. Cor. 13.
29. Hyginus p. 176 "cum signis et aquila et primis ordinibus ac tribunis deducebantur"; Tac. Ann. xiv. 27 "non enim, ut olim, universae legiones deducebantur cum tribunis et centurionibus et sui cujusque ordinis militibus."
30. Varro L.L. v. 143; Serv. ad Aen. v. 755.
31. Liv. xxvii. 38 (207 B.C.) "colonos etiam maritimos, qui sacrosanctam vacationem dicebantur habere, dare milites cogebant"; xxxvi. 3 (191 B.C.) "contentio orta cum colonis maritimis . . . nam, cum cogerentur in classem, tribunos plebei appellarunt."
32. Cic. pro Balbo 11, 28; pro Caec. 34, 100.
33. p. 203.
34. Festus p. 233 "Praefecturae eae appellabantur in Italia, in quibus et jus dicebatur et nundinae agebantur; et erat quaedam earum res publica, neque tamen magistratus suos habebant; in quas legibus praefecti mittebantur quodannis, qui jus dicerent. Quarum genera fuerunt duo: alterum, in quas solebant ire praefecti quattuor, [qui] viginti sex virum numero populi suffragio creati erant . . . alterum, in quas ibant quos praetor urbanus quodannis in quaeque loca miserat legibus." Amongst the praefecturae which he enumerates are the Roman colonies of Volturnum, Liternum, Puteoli, and Saturnia.
35. Liv. viii. 14 "Campanis . . . Fundanisque et Formianis . . . civitas sine suffragio data. Cumanos Suessulanosque ejusdem juris conditionisque, cujus Capuam, esse placuit." For Atella and Calatia see Festus pp. 131, 233.
36. Liv. x. 1.
37. ib. ix. 43, quoted p. 299.
38. Festus p. 131 "municipes erant qui ex aliis civitatibus Romam venissent, quibus non licebat magistratum capere sed tantum muneris partem, ut fuerunt Cumani, Acerrani, Atellani, qui et cives Romani erant et in legione merebant, sed dignitates non capiebant"; cf. p. 127 "participes . . . fuerunt omnium rerum ad munus fungendum una cum Romanis civibus praeterquam de suffragio ferendo aut magistratu capiendo." The words "qui ex aliis civitatibus Romam venissent" in the first definition do not describe the municipes of historical times; they suggest a possible origin for the institution. These rights were first conditioned by domicile in Rome, but the condition was subsequently removed.
39. p. 235.
40. Festus p. 233, quoted p. 302.
41. Liv. viii. 14.
42. ib. xxiv. 19; xxvi. 6.
43. The language of Livy makes it doubtful whether he conceives the foedus to have continued after the civitas had been conferred. They are different stages of rights, but he may mean them to be cumulative. In xxxi. 31 we read "cum . . . ipsos (Campanos) foedere primum, deinde conubio atque cognationibus, postremo civitate nobis conjunxissemus" (cf. xxiii. 5). The civitas here is probably the full citizenship conferred on individual Capuans. They are spoken of as socii in 216 B.C. (xxiii. 5), and though the word is sometimes loosely used, it harmonises in its literal sense with the great constitutional privileges of the town.
44. As at Arpinum (Cic. ad Fam. xiii. 11, 3).
45. Festus p. 127 "quorum civitas universa in civitatem Romanam venit."
46. It did not possess any magistracy for secular purposes (Liv. ix. 43 "magistratibus, praeterquam sacrorum curatione, interdictum").
47. "in ditionem" (Liv. xxxvii. 45), "in potestatem" (xxxix. 54).
48. "in fidem" (ib. viii. 2).
49. Polyb. xx. 9, 12 [Greek: para Rhômaiois isodynamei to te eis tên pistin hauton encheirisai kai to tên epitropên dounai peri hautou tô kratounti].
50. Gell. x. 3, 19.
51. Dig. 49, 15, 7, 1 "liber populus est is qui nullius alterius populi potestati est subjectus."
52. Lex Antonia de Termessibus i. 8.
53. Plin. Ep. ad Traj. 92 (93).
54. Cic. in Verr. iii. 6, 13; cf. App. B.C. i. 102 ([Greek: epi synthêkais enorkoi)].
55. Dig. 49, 15, 7, 1 "hoc adjicitur, ut intellegatur alterum populum superiorem esse, non ut intellegatur alterum non esse liberum." Cf. Cic. pro Balbo 16, 35 "Id habet hanc vim, ut sit ille in foedere inferior."
56. Dig. l.c. "is foederatus est item sive aequo foedere in amicitiam venit sive foedere comprehensum est ut is populus alterius populi majestatem comiter conservaret."
57. Lex Agraria 1. 21 "socii nominisve Latini, quibus ex formula togatorum [milites in terra Italia inperare solent]."
58. Liv. xxii. 57; xxvii. 10 "milites ex formula paratos esse."
59. The number of troops required was decreed every year by the Senate (Liv. xli. 5 etc.), the consuls fixing the amount which each state was to send in proportion to its fighting strength.
60. Cic. pro Balbo 9, 24.
61. Cic. pro Balbo 8, 21 "innumerabiles aliae leges de civili jure sunt latae; quas Latini voluerunt, adsciverunt."
62. Liv. xxxv. 7 (193 B.C.) "M. Sempronius tribunus plebis . . . plebem rogavit plebesque scivit ut cum sociis ac nomine Latino creditae pecuniae jus idem quod cum civibus Romanis esset." The enactment was produced by the discovery that Roman creditors escaped the usury laws by using Italians as their agents.
63. Macrob. Sat. iii. 17, 6.
64. Cic. pro Balbo 8, 20 "foederatos populos fieri fundos oportere . . . non magis est proprium foederatorum quam omnium liberorum." For the formula of acceptance ("fundi—i.e. auctores—facti sunt") cf. Festus p. 89.
65. Cic. pro Balbo 24, 54 "Latinis, id est foederatis."
66. The distinction is expressed in the familiar socii ac nominis Latini (Liv. xli. 8), socii et Latium (Sall. Hist. i. 17), and perhaps in socii Latini nominis, if this last expression is to be regarded as an asyndeton.
67. These twelve colonies, with the dates of their foundations, are—Ariminum (268 B.C.), Beneventum (268), Firmum (264), Aesernia (263), Brundisium (244), Spoletium (241), Cremona and Placentia (218), Copia (193), Valentia (192), Bononia (189), Aquileia (181).
68. The later Latin colonists have of right no conubium with Rome (Ulp. Reg. v. 4 "Conubium habent cives Romani cum civibus Romanis; cum Latinis autem et peregrinis ita si concessum sit"). The change may have come with this last outburst of Latin colonisation in Italy; but it may be as late as the extension of latinitas to the provinces. For the right of commercium possessed by these colonies see Cic. pro Caec. 35, 102 "jubet enim (Sulla Volaterranos) eodem jure esse quo fuerint Ariminenses, quos quis ignorat duodecim coloniarum fuisse et a civibus Romanis hereditates capere potuisse?"
69. Appian (B.C. i. 23), speaking of C. Gracchus' proposal to extend the citizenship, suggests a Latin right [Greek: psêphon en tais Rhômaiôn cheirotoniais pherein]. Livy, with reference to the year 212 B.C., speaks of the sortitio as to the tribe or tribes in which the Latins should vote (xxv. 3, in the trial of Postumius "sitella . . . lata est ut sortirentur ubi Latini suffragium ferrent").
70. Liv. xli. 8 "Lex sociis ac nominis Latini, qui stirpem ex sese domi relinquerent, dabat ut cives Romani fierent."
71. This was the latinitas given to Cisalpine Gaul in 89 B.C. by a law of the consul Cn. Pompeius Strabo. Ascon. in Pison. p. 3 "Pompeius enim non novis colonis eas (Transpadanas colonias) constituit, sed veteribus incolis manentibus jus dedit Latii, ut possent habere jus quod ceterae Latinae coloniae, id est ut gerendo magistratus civitatem Romanam adipiscerentur." Consequently when Caesar refounded Comum in this district, in accordance with the lex Vatinia (59 B.C.), the new civitas possessed this right (App. B.C. ii. 26).
72. Lex Acilia l. 77; Cic. pro Balbo 24, 54. The probable dates of these laws are 122 and 111 B.C. respectively.
73. The allies before the social war reckon as their chief grievance "per omnes annos atque omnia bella duplici numero se militum equitumque fungi" (Vell. ii. 15).
74. Liv. xlii. 1 "(L. Postumius Albinus) . . . literas Praeneste misit, ut sibi magistratus obviam exiret, locum publice pararet, ubi deverteretur, jumentaque, cum exiret inde, praesto essent. Ante hunc consulem nemo unquam sociis in ulla re oneri aut sumptui fuit . . . Injuria consulis . . . et silentium . . . Praenestinorum jus, velut probato exemplo, magistratibus fecit graviorum in dies talis generis imperiorum."
75. C. Gracchus ap. Gell. x. 3, 3.
76. App. B.C. i. 21 and 34. According to Valerius Maximus (ix. 5, 1) Flaccus proposed to give the provocatio to those "qui civitatem mutare noluissent."
77. App. B.C. i. 23. Plutarch makes it a simple proposal of citizenship for the allies (C. Gracch. 5). The geographical limits of these proposed extensions are unknown. Velleius (ii. 6) remarks vaguely, with respect to the Gracchan law, "dabat civitatem omnibus Italicis, extendebat eam paene usque Alpis."
78. App. B.C. i. 35; he promised to reintroduce the law [Greek: peri tês politeias]. Liv. Ep. lxxi. "socios et Italicos populos spe civitatis Romanae sollicitavit"; Vell. ii. 14 "Tum conversus Drusi animus . . . ad dandam civitatem Italiae."
79. Diod. xxxvii. 2.
80. Cf. the words of Pontius Telesinus, the Samnite leader in the later struggle at the Colline gate (Vell. ii. 27), "eruendam delendamque urbem . . . nunquam defuturos raptores Italicae libertatis lupos, nisi silva, in quam refugere solerent, esset excisa." This, however, is an expression of Samnite rather than of Italian feeling.
81. App. B.C. i. 49; Cic. pro Balbo 8, 21.
82. Only one clause of this law is known—that by which the civitas was granted to incolae enrolled on the registers of federate communities; they were to have the citizenship, if they made profession to the praetor within sixty days (Cic. pro Arch. 4, 7). It is difficult to believe that this cumbrous rule applied to the citizens of the towns.
83. The gradual nature of the incorporation is attested by the expression of Velleius (ii. 16), "paulatim deinde recipiendo in civitatem, qui arma aut non ceperant aut deposuerant maturius, vires refectae sunt."
84. Vell. ii. 20 "Itaque cum ita civitas Italiae data esset, ut in octo tribus contribuerentur novi cives, ne potentia eorum et multitudo veterum civium dignitatem frangeret plusque possent recepti in beneficium quam auctores beneficii, Cinna in omnibus tribubus eos se distributurum pollicitus est." Appian (B.C. i. 49) seems to speak of the creation of ten new tribes ([Greek: dekateuontes apephênan heteras en hais echeirotonoun eschatoi]). The attempt to reconcile these accounts by supposing that they refer to different classes of allies or are the respective products of the two acts of legislation (Kubitschek Imp. Rom. trib. descr.; Beloch der Italische Bund) receives some epigraphic support, but rests either on a correction of Appian's text or on the assumption that his account refers to ten of the old tribes.
85. Liv. Ep. 84 "Novis civibus senatus consulto suffragium datum est," a careless phrase of the epitomiser or copyist for the distribution through the tribes (Drakenborch). Sulla, in spite of his rescission of the rights of certain rebel towns, did not disturb this arrangement.
86. Augustus formed the plan of giving to the senates (decuriones) of the twenty-eight colonies which he founded in Italy the right of voting for the magistrates at Rome. They were to send their votes under seal (Suet. Aug. 46).
87. Liv. xxxviii. 36.
88. Cicero says that his grandfather, in or just before the consulship of Scaurus (115 B.C.), "restitit M. Gratidio . . . ferenti legem tabellariam" (de Leg. iii. 16, 36).
89. C.I.L. i. p. 163.
90. A fragment of a constitution of Tarentum, dating apparently from a time not long subsequent to the lex Julia of 90 B.C., has been preserved (Fragmentum Tarentinum in L'Année Épigraphique, 1896, pp. 30, 31). Arpinum was undergoing reorganisation in 46 B.C. (Cic. ad Fam. xiii. 11, 3).
91. Cic. in Verr. v. 13, 34 "unum illud, quod ita fuit illustre notumque omnibus, ut nemo tam rusticanus homo L. Lucullo et M. Cotta consulibus (74 B.C.) Romam ex ullo municipio vadimonii causa venerit quin sciret jura omnia praetoris urbani nutu . . . Chelidonis . . . gubernari."
92. Ascon. in Pison. p. 8.
93. This is proved both by the attempt of Crassus, as censor in 65 B.C., to place the Transpadanes on the register of citizens (Dio Cass. xxxvii. 9), and by Cicero's comment on Marcellus' action in scourging a citizen of Novum Comum in 51 B.C. (Cic. ad Att. v. 11, 2 "Marcellus foede in Comensi: etsi ille magistratum non gesserit, erat tamen Transpadanus").
94. Dio Cass. xli. 36.
95. Cic. ad Att. v. 2, 3 "eratque rumor de Transpadanis, eos jussos IIIIviros creare. Quod si ita est, magnos motus timeo."
96. App. B.C. v. 3 [Greek: tên te gar Keltikên tên entos Alpeôn edokei Kaisaros axiountos] (i.e. Octavianus after Philippi) [Greek: autonomon aphienai, gnômê tou proterou Kaisaros.] Cf. iii. 30 and Dio Cass. xlviii. 12.
97. The name given to the district in the law Gallia Cisalpeina, Gallia cis Alpeis (cc. 22 and 23) suits both epochs equally well, for Caesar had not made it a part of Italy. The fact that the praetor urbanus is the central authority in jurisdiction (cc. 21 and 22) suits the Augustan epoch better.
98. Lex Rubria cc. 21 and 22. For the vadimonium cf. Cic. in Verr. v. 13, 34 (quoted p. 313).
99. Generally quattuorviri, this board being usually divided into two magistrates with higher jurisdiction (duumviri juri dicundo) and two police officials (duumviri aediles). Sometimes we find IIIIviri dicundo, perhaps a designation for the joint board, or, where the magistrates with aedilician power alone are referred to, IIIIviri aediles or aedilicia potestate. See Wilmanns Index pp. 620-622.
100. Lex Julia mun. l. 84. Cf. Cic. in Pis. 22, 51 "neque enim regio ulla fuit, nec municipium neque praefectura aut colonia, ex qua non ad me publice venerint gratulatum."
101. Wilmanns Index p. 618.