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Handbooks of Archaeology and Antiquities
ROMAN PUBLIC LIFE
[Illustration: Publisher's logo]
ROMAN PUBLIC LIFE
by
A. H. J. GREENIDGE, M.A.
Lecturer and Late Fellow of Hertford College, and
Lecturer in Ancient History at Brasenose College, Oxford
London
Macmillan and Co., Limited
New York: The Macmillan Company
1901
All rights reserved
TO
M. L. P.
J. T. W. G.
AND
J. E. G. H.
PREFACE
The object of this work is to trace the growth of the Roman constitution,
and to explain its working during the two phases of its maturity, the
developed Republic and the Principate. The title selected perhaps
expresses more succinctly than any other could do the nature of the plan
which I wished to undertake. My desire was to touch, however briefly,
on all the important aspects of public life, central, municipal, and
provincial; and, thus, to exhibit the political genius of the Roman
in connexion with all the chief problems of administration which
it attempted to solve. This design, like many other comprehensive
plans which have to be adapted to the limits of a single volume, was
necessarily subjected to modifications in detail; and, since one of these
modifications has affected the whole scope of the book, it requires some
mention in a preface.
I had intended to carry the treatment of my subject beyond the confines
of the Principate, and to describe the political organisation of the
later Empire as elaborated by Diocletian and his successors. I found,
however, that a discussion of this period would cause my work to exceed
the reasonable limits which can be conceded to a handbook, and I was
forced to abandon the enterprise much against my will. I was somewhat
comforted in this surrender by the suggestion that the constitution of
the later Empire was perhaps not strictly “Roman.” This is a verdict with
which I agree in part. The organisation which had Constantinople as its
centre was certainly the organisation of an Empire which was permeated
with the social ideals of later Rome, which had adopted a Latin code,
and which employed an administrative system whose origin was to be found
in Italy; but in the forms of rule which the monarchy presented the
break with the past was remarkable. The absolutism was no new thing, but
the guise assumed by this absolutism was startlingly novel. It is not
only that classic traditions were forgotten, that, as Gibbon says, “the
purity of the Latin language was debased by adopting, in the intercourse
of pride and flattery, a profusion of epithets, which Tully would
have scarcely understood, and which Augustus would have rejected with
indignation,” but that, even where the continuity in public institutions
can be traced, it is one of names rather than of ideas. In the Principate
we see a perverted Republic; in the monarchy a _Res publica_ only in the
narrowest etymological sense of those words. Perhaps the accession of
Diocletian does, after all, mark the close of a true “Roman” public life.
The task, even as thus limited, has been a long one, and would have been
still longer had it not been for the kindly assistance rendered me by a
former pupil, Miss Muriel Clay, of Lady Margaret Hall. The help which
she has given in the reading of the proofs, and in the verification of
the references to original authorities, has not only facilitated the
production of the book, but has materially improved it by the removal
of errors and obscurities. I have also to thank her for the Index of
subjects and the Index of Latin words which accompany the volume.
A. H. J. G.
OXFORD, _April 1901_.
CONTENTS
(_The references are to the pages_)
CHAPTER I
THE EARLIEST CONSTITUTION OF ROME
_THE GROWTH OF THE CITY_
SECT.
1. Early Italian associations; the _pagus_, _vicus_, _gens_, 1.
Growth of the city of Rome, 2. Foreign influences on Roman life, 3.
_THE ELEMENTS OF THE POPULATION—PATRICIANS, PLEBEIANS,
CLIENTS_
2. Origin of the Patricians, 4; of the Plebeians, 5. Clientship, 7.
_ROMAN FAMILY ORGANISATION_
3. The _gens_, 9. The _familia_, 18. The _nexus_, 24. Slavery, 24.
Transmission of property and forms of testament, 26. _Caput_, 31.
_Capitis deminutio_, 32.
_THE CITIZENS AND THE POLITICAL SUBDIVISIONS OF THE STATE_
4. The _populus Romanus_, 33. Rights of the citizen, 35.
_Auspicium_, 36. The tribes, 40. The army, 41. The _curiae_, 41.
_THE MONARCHICAL CONSTITUTION_
5. Relation of the king to the people, 42. Titles and _insignia_
of the king, 44. Mode of appointment of the king, 45. Religious
character of the monarchy, 51. The rule of _fas_, 52. Civil powers
of the king, 57. The Senate of the monarchy, 58. _Consilia_ of the
king, 61. Delegates of the king, 61. Jurisdiction of the monarchy,
62.
_THE SERVIAN CONSTITUTION_
6. Social changes that led to the Servian reform, 65. The Servian
tribes, 66. Registration for military purposes; the new
organisation of the army, 68. The _census_, 69. Transference of
political rights to the new assembly of the centuries, 75. The
close of the monarchy, 76.
CHAPTER II
THE GROWTH OF THE REPUBLICAN CONSTITUTION
Institution of consuls and limitation of the _imperium_, 78.
Appointment of quaestors, 80. The Senate of the early Republic,
81. Creation of the dictatorship, 84. Government of the patrician
aristocracy, 85. Rights of the plebeians, 87. Social struggles of
the _plebs_, 89. Creation of the tribunate, 93. The powers of the
_tribuni plebs_, 94. The _concilium plebis_, 96. The aediles of the
_plebs_, 97. The _sacrosanctitas_ of the plebeian magistrates, 99.
The _concilium plebis_ meets by tribes, 100. Creation of a _comitia
tributa_, 102. Agitation for the publication of a code, 102. The
Twelve Tables, 104. Attempt at despotism made by the decemvirs, 107.
The Valerio-Horatian laws, 108. Intermarriage permitted between the
orders, 111. Institution of _tribuni militum consulari potestate_,
112. Institution of the censorship, 115. Struggle for the consulship,
118. The Licinio-Sextian laws, 119. Institution of the praetorship
and the curule aedileship, 120. Admission of the plebeians to
office, 122; and to the religious colleges, 123. Rights secured to
the _plebs_ by the _leges Publiliae_ and the _lex Hortensia_, 124.
Results of the tendencies of plebeian emancipation, 127. The new
nobility, 129. Continued distinction between the orders, 131.
CHAPTER III
THE CLASSES OF THE POPULATION AND THE THEORY OF THE
CONSTITUTION IN THE DEVELOPED REPUBLIC
_THE CLASSES OF THE POPULATION_
1. Modes of acquiring citizenship, 132. Modes of enfranchisement,
134. _Ingenuitas_, 135. Rights and duties of the citizen, 136.
Developed conception of _capitis deminutio_, 138. Changes in the
Roman family, 140. The condition of the slave, 141. The freedmen,
144.
_THE THEORY OF THE CONSTITUTION_
2. Complexity of the constitution, 146. Theory of the state as
revealed in the _interregnum_, 147. Separate existence of the
_plebs_, 149. The weakening of the magistracy and the resulting
ascendancy of the Senate, 150.
CHAPTER IV
THE MAGISTRACY
_GENERAL CHARACTERISTICS OF THE MAGISTRACY_
1. _Imperium_ and _potestas_, 152. Administrative powers of the
magistrates, 152. Military powers, 153. The right to triumph, 156.
Powers exercised in connexion with the people, 158. The _contio_
and the _comitia_, 159. Right of acting with the _plebs_, 161.
The right of consulting the Senate, 161. General powers of the
magistrates; the _auspicia_, 162. The _coercitio_, 167. Conflict
between the powers of the magistrates; the _obnuntiatio_, 172. The
right of prohibition, 173. The _intercessio_, 176. The civil and
criminal responsibility of magistrates, 181. The qualifications for
office, 183. The formalities of candidature and election, 187. The
_insignia_ of office, 191.
_THE INDIVIDUAL MAGISTRACIES_
2. The dictator, 191. The magister equitum, 195. The consuls,
196. The praetors, 202. The aediles, 208. The quaestors, 212. The
censors, 216. The plebeian magistrates, 233. The minor magistrates,
234.
CHAPTER V
THE PEOPLE AND ITS POWERS
Legislation, 238. Form of a _lex_, 242. Control of external matters,
243. Elective powers, 245. Judicial powers, 245. Rescission of
sentences by the people, 248. Remission of outlawry and amnesty,
249. Grounds of invalidity of popular acts, 249. The different
_comitia_; the _comitia curiata_, 250. The _comitia centuriata_ and
its reorganisation, 252. The _comitia tributa_, 253. The _concilium
plebis_, 253. Elections to the religious colleges, 254. Formalities
observed in the meetings of the assemblies, 255.
CHAPTER VI
THE SENATE
Reasons for the growth of the Senate’s power, 261. Method of
appointment of senators, 263. External distinctions of senators,
265. Reforms of Sulla, 266. Rules of initiative and debate in the
Senate, 267. The _senatus consultum_ and _senatus auctoritas_, 272.
Powers of the Senate; its probouleutic authority, 273. Suspension of
magistrates, 275. Quasi-legislative power, 275. Power of exempting
from laws, 276. Revising power, 276. Influence on jurisdiction, 277.
Appointment of special commissions, 278. Declaration of martial law,
279. Police control, 282. Control of foreign policy, 282. Control of
finance, 286. Control of religion, 287.
CHAPTER VII
THE INTERNATIONAL RELATIONS OF ROME AND THE INCORPORATION OF ITALY
Difference between the Greek and Italian conceptions of international
law, 289. International customs of Rome, 290. International relations
with foreign states, 292. The _jus gentium_, 294. The federation of
Latium, 295. Extension of the league and change in its character,
296. The organisation of Italy; _cives_ and _socii_, 299. Proposals
to extend the franchise, 310. Settlement after the social war, 312.
Incorporation of Cisalpine Gaul, 314.
CHAPTER VIII
THE ORGANISATION AND GOVERNMENT OF THE PROVINCES
Origin of provincial government, 316. The conception of a
_provincia_, 317. Free and allied cities, 317. _Stipendiariae
civitates_; the _lex provinciae_, 318. Taxation, 319. The governor
and his staff, 322. The spheres of administration, 324. Jurisdiction,
325. The provincial edict, 326. General estimate of provincial
government, 328.
CHAPTER IX
THE REVOLUTION AND THE TRANSITION TO THE PRINCIPATE
Objects of the party of reform, 331. Elements in the party of reform,
332. The balance of parties; the _equites_, 333. The issue of the
struggle, 334. The sole rule of Caesar, 336. The Triumvirate and the
establishment of the Principate, 338.
CHAPTER X
THE PRINCIPATE
_THE POWERS OF THE PRINCEPS_
1. The chief bases of the Princeps’ authority; the _proconsulare
imperium_ and the _tribunicia potestas_; nature of the _imperium_,
341. Powers connected with the _imperium_, 344. Powers connected
with the _tribunicia potestas_, 346. The Princeps as consul, 347;
as censor, 347. Extraordinary rights conferred on the Princeps,
348. Dispensation from laws, 350. The Princeps as head of the state
religion, 350.
_TITLES, INSIGNIA, AND HONOURS OF THE PRINCEPS_
2. Appellatives and titles, 351. _Insignia_, 355. Other honours,
355. The _domus Caesaris_, 356. _Amici_ and _comites_, 357.
_CREATION, TRANSMISSION, AND ABROGATION OF THE PRINCIPATE_
3. Election of a Princeps, 358. Designation of a successor,
360. Hereditary succession, 362. Deposition of a Princeps, 362.
Recognition of a reign, 363.
_THE OTHER POWERS IN THE STATE—THE MAGISTRACY, THE
COMITIA, AND THE SENATE_
4. The magistracy, 363. The individual magistrates, 367. The
_comitia_ 371. The Senate, 373.
_THE CHIEF DEPARTMENTS OF THE STATE; THE DUAL CONTROL
OF SENATE AND PRINCEPS_
5. The dyarchy, 377. Legislation; legislative power of the
_comitia_, 377. Quasi-legislative power of the Senate, 377;
of the Princeps, 378. Jurisdiction, 381. Division of civil
jurisdiction, 382. The civil courts of appeal, 382. The appeal
from the provinces, 385. Criminal jurisdiction, 386. The criminal
courts of appeal, 390. The power of pardon, 391. The dyarchy in
administration, 393; in finance, 394; in the control of _cultus_,
397; in the control of coinage, 397. The extent to which the
dyarchy was a reality, 397.
_THE SENATORIAL AND THE EQUESTRIAN NOBILITY_
6. The senatorial order, 399. The equestrian order, 402.
_THE FUNCTIONARIES OF THE PRINCEPS_
7. The praefects, 406. _Praefectus urbi_, 406. _Praefectus
praetorio_, 409. _Praefectus annonae_, 411. _Praefectus vigilum_,
412. The curators, 413. The procurators, 414. Personal assistants;
the imperial secretariate 418. The imperial _consilium_, 420.
CHAPTER XI
ITALY AND THE PROVINCES UNDER THE PRINCIPATE
_THE ORGANISATION OF ITALY_
1. Division into regions, 422. The downfall of the _comitia_, 423.
Limitations on local jurisdiction, 423. Institution of _curatores_,
424; of _correctores_, 424. The _alimentarium_, 425.
_THE ORGANISATION OF THE PROVINCES_
2. General character of the changes introduced by the Principate,
426. The public and the imperial provinces, 427. Change in the
condition of the free and allied cities, 428. Methods of conferring
immunity; the _jus Italicum_, 429. Taxation, 429. Method of
government in the public provinces, 432; in the imperial provinces,
434. Procuratorial governorships, 432. Government of the German
provinces and of Egypt, 435. Romanisation of the provinces, 436.
Change in the condition of the provincial towns, 437. The _munera_
of their citizens and of the decurions, 439.
_THE WORSHIP OF THE EMPEROR_
3. Origin and character of Caesar-worship, 440. Its extension, 441.
Its effects, 442.
APPENDIX I
The two Assemblies of the Tribes, 445
APPENDIX II
A Limitation of the Tribunate in the Reign of Nero, 447
INDEX
PAGE
(i.) of subjects 453
(ii.) of Latin words 457
(iii.) of passages from ancient authors referred to in the text 467
SELECT BIBLIOGRAPHY
1. THE POLITICAL INSTITUTIONS OF ROME
HERZOG, E.—_Geschichte und System der römischen
Staatsverfassung._ Leipzig, 1884-91.
KARLOWA, O.—_Römische Rechtsgeschichte_, Bd. I. (“Staatsrecht
und Rechtsquellen”). Leipzig, 1885.
LANGE, L.—_Römische Alterthümer._ Berlin, 1856-71.
MADVIG, J.—_Die Verfassung und Verwaltung des römischen
Staates._ Leipzig, 1881-82.
MISPOULET, J.—_Les institutions politiques des Romains._ Paris,
1882-83.
MOMMSEN, TH.—_Römisches Staatsrecht._ Bd. I. (“die
Magistratur”), II. Abt. i. (“die einzelen Magistraturen”), II.
Abt. ii. (“der Principat”), III. (“Bürgerschaft und Senat”).
Leipzig, 1887-88.
MOMMSEN, TH.—_Abriss des römischen Staatsrechts._ Leipzig, 1893.
RUBINO, J.—_Untersuchungen über römische Verfassung und
Geschichte._ Cassel, 1839.
SCHILLER, H.—“Staats- und Rechtsaltertümer” (_Handbuch der
klassischen Altertums-Wissenschaft_, herausg. von Dr. Iwan von
Müller, Bd. IV. Abt. ii.). München, 1893.
WILLEMS, P.—_Le droit public Romain._ Louvain, Paris, 1888.
ZOELLER, M.—_Römische Staats- und Rechtsaltertümer._ Breslau,
1895.
2. THE CITY OF ROME, THE MONARCHY AND THE EARLY HISTORY OF ROME
BERNHOEFT, F.—_Staat und Recht der römischen Königszeit im
Verhältniss zu verwandten Rechten._ Stuttgart, 1882.
DYER, T.—_The History of the Kings of Rome._ With a prefatory
dissertation on its sources and evidence. London, 1868.
GILBERT, O.—_Geschichte und Topographie der Stadt Rom._
Leipzig, 1883.
IHNE, W.—“Early Rome, from the foundation of the city to its
destruction by the Gauls” (_Epochs of Ancient History_).
London, 1876.
LANCIANI, R.—_Ancient Rome in the light of recent discoveries._
London, 1888.
LANCIANI, R.—_The ruins and excavations of ancient Rome._
London, 1897.
LEWIS, G.—_An inquiry into the credibility of the early Roman
history._ London, 1855.
MIDDLETON, J.—_The remains of ancient Rome._ London and
Edinburgh, 1892.
PAIS, E.—_Storia di Roma._ Turin, 1898-99.
POEHLMANN, R.—_Die Anfänge Roms._ Erlangen, 1881.
RICHTER, O.—Art. “Rom” (Baumeister, A.—_Denkmäler des
klassischen Altertums_). München, Leipzig, 1889.
RUBINO, J.—_Untersuchungen_ (Abschn. ii. “von dem Königthume”).
Cassel, 1839.
SCHWEGLER, A.—_Römische Geschichte im Zeitalter des Kampfs der
Stände._ Tübingen, 1853-58.
3. THE SENATE
MOMMSEN, TH.—_Römische Forschungen_, Bd. I. Berlin, 1879.
RUBINO, J.—_Untersuchungen_ (Abschn. iii. “von dem Senate und
dem Patriciate”). Cassel, 1839.
WILLEMS, P.—_Le Sénat de la République Romaine._ Louvain,
1883-85.
4. THE EQUITES
BELOT, E.—_Histoire des chevaliers Romains considerée dans ses
rapports avec les différentes constitutions de Rome._ Paris,
1869-73.
MARQUARDT, J.—_Historiae equitum Romanorum libri quattuor._
Berlin 1840.
5. THE POPULAR ASSEMBLIES
BORGEAUD, C.—_Le plébiscite dans l’antiquité. Grèce et Rome._
Geneva, 1886.
HUSCHKE, P.—_Die Verfassung des Königs Servius Tullius
als Grundlage zu einer römischen Verfassungsgeschichte._
Heidelberg, 1838.
MOMMSEN, TH.—_Römische Forschungen_, Bd. I. Berlin, 1879.
RUBINO, J.—_Untersuchungen_ (Abschn. iv. “von den
Volksversammlungen”) Cassel, 1839.
SOLTAU, W.—_Entstehung und Zusammensetzung der altrömischen
Volksversammlungen._ Berlin, 1880.
SOLTAU, W.—_Die Gültigkeit der Plebiscite._ Berlin, 1884.
6. THE STATE DIVISIONS
BELOCH, J.—_Der italische Bund unter Roms Hegemonie._ Leipzig,
1880.
HUSCHKE, P.—_Die Verfassung des Königs Servius Tullius._
Heidelberg, 1838.
KUBITSCHEK, J.—_De Romanarum tribuum origine et propagatione._
Vienna, 1882.
KUBITSCHEK, J.—_Imperium Romanum tributim discriptum._ Vienna,
1889.
MOMMSEN, TH.—_Die römische Tribus in administrativer
Beziehung._ Altona, 1844.
7. ADMINISTRATION UNDER THE PRINCIPATE
CUQ, E.—“Le conseil des empereurs d’Auguste à Dioclétien”
(_Mémoires présentés à l’Académie des inscriptions_). Paris,
1884.
HIRSCHFELD, O.—_Untersuchungen auf dem Gebiete der römischen
Verwaltungsgeschichte._ Berlin, 1877.
LIEBENAM, W.—_Forschungen zur Verwaltungsgeschichte des
römischen Kaiserreichs._ Leipzig, 1888.
LIEBENAM, W.—_Die Laufbahn der Procuratoren bis auf die Zeit
Diocletians._ Jena, 1886.
8. THE CIVIL AND CRIMINAL COURTS
BETHMANN-HOLLWEG, M. A. VON.—“Der römische Civilprozess” (_Der
Civilprozess des gemeinen Rechts_, Bde. I. II.). Bonn, 1864.
GEIB, G.—_Geschichte des römischen Criminalprocesses bis zum
Tode Justinians._ Leipzig, 1842.
GREENIDGE, A.—_The legal procedure of Cicero’s time._ Oxford,
1901.
KELLER, F. L. VON.—_Der römische Civilprozess und die
Actionen._ 5te Ausg. bearbeitet von Adolf Wach. Leipzig, 1876.
MOMMSEN, TH.—_Römisches Strafrecht._ Leipzig, 1899.
PUNTSCHART, V.—_Die Entwicklung des grundgesetzlichen
Civilrechts der Römer._ Erlangen, 1872.
RUDORFF, A.—_Römische Rechtsgeschichte_, Bd. II. Leipzig, 1859.
WLASSAK, M.—_Römische Processgesetze. Ein Beitrag zur
Geschichte des Formularverfahrens._ Leipzig, 1888-91.
WLASSAK, M.—_Edict und Klageform._ Jena, 1882.
ZUMPT, A.—_Das Criminalrecht der römischen Republik._ Berlin,
1865-69.
9. PRIVATE AND CRIMINAL LAW
CUQ, E.—_Les institutions juridiques des Romains._ Paris, 1891.
CZYHLARZ, C. VON.—_Lehrbuch der Institutionen des römischen
Rechts._ Prague, Vienna, Leipzig. 1895.
GIRAUD, C.—_Histoire du droit Romain ou introduction historique
à l’étude de cette législation._ Paris, 1847.
GOODWIN, F.—_The Twelve Tables._ London, 1886.
IHERING, R. VON.—_Geist des römischen Rechts auf den
verschiedenen Stufe seiner Entwicklung._ Leipzig, 1877-83.
KARLOWA, O.—_Römische Rechtsgeschichte._ Leipzig, 1885.
LABOULAYE, E.—_Essai sur les lois criminelles des Romains
concernant la responsabilité des magistrats._ Paris, Leipzig,
1845.
MITTEIS, L.—_Reichsrecht und Volksrecht in dem östlichen
Provinzen des römischen Kaiserreichs._ Leipzig, 1891.
MOMMSEN, TH.—_Römisches Strafrecht._ Leipzig, 1899.
MUIRHEAD, J.—_Historical introduction to the private law of
Rome._ Second edition revised and edited by H. Goudy. London,
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ORTOLAN, E.—_Histoire de la législation Romaine._ 1884.
ORTOLAN, E.—_Explication historique des instituts de l’empereur
Justinien._ Paris, 1851.
REIN, W.—_Das Criminalrecht der Römer von Romulus bis auf
Justinianus._ Leipzig, 1844.
ROBY, H.—_An introduction to the study of Justinian’s Digest_,
Cambridge, 1886.
RUDORFF, A.—_Römische Rechtsgeschichte_, Leipzig, 1857-59.
SOHM, R.—_The institutes of Roman law._ Translated by J. C.
Ledlie, with an introductory essay by E. Grueber. Oxford, 1892.
VOIGT, M.—_Die zwölf Tafeln. Geschichte und System des Civil- und
Criminal-Rechtes, wie Processes der XII. Tafeln nebst deren
Fragmenten._ Leipzig, 1888.
VOIGT, M.—_Römische Rechtsgeschichte._ Leipzig, 1892.
ZUMPT, A.—_Das Criminalrecht der römischen Republik._ Berlin,
1865-69.
10. PUBLIC ECONOMY
CUNNINGHAM, W.—“An essay on Western civilisation in its
economic aspects” (_Ancient Times_, Book III). Cambridge, 1898.
DUREAU DE LA MALLE, A.—_Economie politique des Romains._ Paris,
1840.
MARQUARDT, J.—_Römische Staatsverwaltung_, Bd. II. 2te. Aufl.,
besorgt von H. Dessau und A. von Domaszewski. Leipzig, 1884.
11. SOCIAL CONDITIONS
FRIEDLÄNDER, L.—_Darstellungen aus der Sittengeschichte Roms
in der Zeit von August bis zum Ausgang der Antonine._ Leipzig,
1862-71.
INGRAM, J.—_A history of slavery and serfdom_ (ch. iii.).
London, 1895.
MARQUARDT, J.—_Das Privatleben der Römer._ 2te. Aufl., besorgt
von A. Mau. Leipzig, 1886.
VOIGT, M.—“Privataltertümer und Kulturgeschichte” (_Handbuch
der klassischen Altertums-Wissenschaft_, herausg. von Dr. Iwan
von Müller, Bd. IV. Abt. ii.). München, 1893.
WALLON, H.—_Histoire de l’esclavage dans l’antiquité._ Paris,
1879.
12. THE GUILDS
COHN, M.—_Zum römischen Vereinsrecht._ Berlin, 1873.
LIEBENAM, W.—_Zur Geschichte und Organisation des römischen
Vereinswesens, drei Untersuchungen._ Leipzig, 1890.
MOMMSEN, TH.—_De collegiis et sodaliciis Romanorum._ Kiel, 1843.
WALTZING, J.—_Etude historique sur les corporations
professionelles chez les Romains depuis les origines jusqu’à la
chute de l’Empire d’Occident._ Louvain, 1895-99.
13. RELIGIOUS ORGANISATION IN ITS POLITICAL ASPECT
BEURLIER, E.—_Essai sur le culte rendu aux Empereurs Romains._
Paris, 1890.
BOISSIER, G.—_La religion Romaine d’Auguste aux Antonins._
Paris, 1874.
BOUCHÉ-LECLERCQ, A.—_Les pontifes de l’ancienne Rome._ Paris,
1871.
GUIRAUD, P.—_Les assemblées provinciales dans l’Empire Romain_,
Paris, 1887.
MARQUARDT, J.—“De provinciarum Romanarum conciliis et
sacerdotibus” (_Ephemeris Epigraphica_, vol. i. pp. 200-14).
MOURLOT, F.—_Essai sur l’histoire de l’Augustalité dans
l’empire Romain._ Paris, 1895.
14. THE MUNICIPAL TOWNS
KUHN, E.—_Die städtische und bürgerliche Verfassung des
römischen Reichs bis auf die Zeiten Justinians._ Leipzig,
1864-65.
LIEBENAM, W.—_Städteverwaltung im römischen Kaiserreiche._
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MOMMSEN, TH.—“Die Stadtrechte der latinischen Gemeinden
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philologisch-historischen Classe der königlich sächsischen
Gesellschaft der Wissenschaften_, Bd. II.). Leipzig, 1857.
15. THE PROVINCES
ARNOLD, W.—_The Roman system of provincial administration to
the accession of Constantine the Great._ London, 1879.
MARQUARDT, J.—_Römische Staatsverwaltung_, Bd. I. Leipzig, 1881.
MOMMSEN, TH.—_The provinces of the Roman Empire from Caesar to
Diocletian._ Translated by William P. Dickson. London, 1886.
16. SOURCES AND DOCUMENTS
BRUNS, C.—_Fontes juris Romani antiqui._ Freiburg, 1893.
KIPP, TH.—_Quellenkunde des römischen Rechts._ Leipzig, 1896.
17. INSCRIPTIONS
_Corpus Inscriptionum Latinarum._ Berlin.
_Inscriptions Regni Neapolitani_, ed. Mommsen. Leipzig, 1852.
MOMMSEN, TH.—_Res gestae divi Augusti ex monumentis Ancyrano et
Apolloniensi._ Berlin, 1883.
ORELLI-HENZEN.—_Inscriptionum Latinarum selectarum collectio._
Zürich, 1828-56.
PELTIER, C.—_Res gestae divi Augusti._ Paris, 1886.
WILMANNS, G.—_Exempla inscriptionum Latinarum._ Berlin, 1873.
18. DICTIONARIES OF ANTIQUITIES CONTAINING ARTICLES ON ROMAN
CONSTITUTIONAL LAW
DAREMBERG-SAGLIO.—_Dictionnaire des antiquités Grecques et
Romaines_ (A to Lib). 1875, etc.
PAULY.—_Real-Encyclopädie der classischen
Alterthumswissenschaft._ 6 Bde. Stuttgart, 1839.
PAULY-WISSOWA.—_Real-Encyclopädie_, etc. (a new edition of the
above, A to Corn). 1893, etc.
SMITH.—_Dictionary of Greek and Roman antiquities._ Third
edition, edited by W. Smith, W. Wayte, and G. E. Marindin.
London, 1890.
19. HISTORIES OF ROME
DURUY, V.—_History of Rome and of the Roman people, from
its origin to the establishment of the Christian Empire._
Translated by W. J. Clarke. Edited by J. P. Mahaffy. London,
1883-86.
GARDTHAUSEN, V.—_Augustus und seine Zeit._ Leipzig, 1891-96.
GIBBON, E.—_The history of the decline and fall of the Roman
Empire._ Edited by J. B. Bury. London, 1896-1900.
HERTZBERG, G.—_Geschichte des römischen Kaiserreichs_ (Oncken,
W.—_Allgemeine Geschichte_, Hauptabth. 2, Thl. l). Berlin, 1880.
HOW (W.) and LEIGH (H.).—_A history of Rome to the death of
Caesar._ London, 1896.
IHNE, W.—_Römische Geschichte._ Leipzig, 1868-90.
LONG, G.—_The decline of the Roman Republic._ London, 1864-74.
MERIVALE, C.—_History of the Romans under the Empire._ London,
1875-76.
MOMMSEN, TH.—_The history of Rome._ Translated by W. P.
Dickson. London, 1894.
NIEBUHR, B.—_Römische Geschichte._ Neue Ausgabe von M. Isler.
Berlin, 1873-74.
NIEBUHR, B.—_History of Rome._ Translated by Walter (F.), Smith
(W.), and Schmitz (L.). London, 1827-44.
PELHAM, H.—_Outlines of Roman History._ London, 1893.
PETER, C.—_Geschichte Roms._ Halle, 1881.
RANKE, L. VON.—_Weltgeschichte._ Thl. II. (“die römische
Republik und ihre Weltherrschaft”). Thl. III. (“das altrömische
Kaiserthum”). Leipzig, 1883.
SCHILLER, H.—_Geschichte der römischen Kaiserzeit._ Gotha,
1883-87.
CHAPTER I
THE EARLIEST CONSTITUTION OF ROME
§ 1. _The Growth of the City_
In the developed political life of Italy there is a survival of a form
of association known as the _pagus_[1]—an ethnic or, at least, a tribal
unit, which is itself composed of a number of hamlets (_vici_, οἶκοι).
This district with its group of villages perhaps represents the most
primitive organisation of the Italian peoples engaged in agriculture and
pastoral pursuits.[2] The _pagus_ seems to resemble the tribe (_tribus_)
of the fully formed city-state,[3] while the _vicus_ may often have
represented, or professed to represent, a simple clan (_gens_). In the
centre of the district lay a stronghold (_arx_, _castellum_), in which
the people took shelter in time of danger.
There are, indeed, traditions of isolated units still smaller than the
_pagus_. The clan is sometimes pictured as wandering alone with its crowd
of dependants.[4] But migration itself would have tended to destroy
the self-existence of the family; the horde is wider than the clan,
and the germ of the later _civitas_ must have appeared first, perhaps,
in the _pagus_, later in the _populus_ which united many _pagi_. The
union may have been slight at first, and may often have been based
merely on the possession of some common shrine. Much of the civil and
criminal law was administered within the family in the form of a domestic
jurisdiction which survived in historical Rome; but a common market would
involve disputes, and these would have to be settled by an appeal to an
arbitrator (_arbiter_) even before the idea of a magistracy was evolved.
Lastly come military necessities whether of defence or aggression. It
is these that create a power which more than any other makes the state.
The mild kingship of the high-priest of the common cult gives way to the
organised rule of an _imperium_, and the king, _praetor_ or _dictator_,
is the result, the coherence of infant organisation being dependent on
the strength of the executive power.
In the earliest city of Rome, to which we are carried back by tradition
or archaeological research, this development has already been attained.
The square city (_Roma quadrata_) was the enclosure of the Palatine,
the “grazing-land” of the early Roman shepherd;[5] the bounds of the
oldest _pomerium_ were known in later times to have been the limits
of this site,[6] and traces of the tufa ring-wall may yet be seen.
From this centre the city spread in irregular concentric circles.[7]
Traces of ritual have preserved a memory of a city of the seven hills
(_Septimontium_)—not those of the Servian Rome, but five smaller
elevations, three (Palatium, Cermalus, Velia) on the older city of the
Palatine, and two (Oppius, Cispius) on the newly-included Esquiline;
while two valleys on the latter (Fagutal and Subura) also bear the name
_montes_,[8] and are, with the sites that really deserve the name,
inhabited by the _montani_, who are distinguished from the _pagani_,
the inhabitants of the lower-lying land beneath. It is not impossible
that these seven “hills” were once the sites of independent or loosely
connected villages (_vici_, or perhaps even _pagi_) which were gradually
amalgamated under a central power, and, as the walls of the state could
never have been coterminous with its territory, each successive enclosure
must show the incorporation, voluntary or enforced, of a far greater
number of smaller political units than those which the fortifications
directly absorbed. Modern inquirers, following up a further hint supplied
by the survival of a ritual, have held that there was another advance
before the epoch of the Servian Rome was reached, and that what is known
as “the Rome of the four regions” survives in the sites associated with
the chapels of the Argei,[9] and is preserved in the administrative
subdivisions of the city to the close of the Republic.[10] To form these
regions the Caelian, the Quirinal, and the Viminal hills were added,
while the Capitol with its two peaks now became, not indeed a part of
the town, but, as the “head” of the state, its chief stronghold and the
site of its greatest temples. The final step in the city’s growth was the
enclosure associated with the name of Servius Tullius, a fortification
extending beyond the limits of the true _pomerium_, which added to the
city the whole of the Esquiline to the north-east, the Aventine to the
south-west, stretched to the west to the bank of the Tiber where the Pons
Sublicius crosses the river, and formed the enceinte of Republican Rome.
It is possible that an amalgamation of slightly different ethnic elements
may be associated with this extension of the city. That a difference of
race lay at the basis of the division of the primitive people into their
three original tribes was believed in the ancient, and has often been
held in the modern world. The Tities (or Titienses) were supposed to be
Sabine,[11] the Ramnes (or Ramnenses) Roman; the Luceres were held by
some to be also Latin, by others to be Etruscan. There is, however, a
rival tradition of the artificial creation of these tribes by the first
Roman king,[12] and, when we remember the arbitrary application in the
Greek world of tribe-names that had once been significant,[13] we may
hold it possible that the great συνοικισμός typified by the name of
Romulus was not accompanied by any large alien intermixture with the
primitive Latin population. The existence of Sabine gods like Sancus,
or Sabine ritual as typified in Numa Pompilius, is no more evidence of
Sabine intermixture than the early reception of Hellenic deities is of
Greek;[14] and though it is possible that a Sabine tribe once settled
on the Quirinal, and it is almost certain that at the close of the
monarchical period an Etruscan dynasty ruled in Rome, yet the language,
religion, and political structure of the early state were of a genuinely
Latin type. There was, indeed, contact with peoples more developed in
material civilisation or more gifted in their spiritual life, and to this
contact the debt of Rome was great. Rome adopts the Chalcidian alphabet;
she receives early Greek divinities such as Hercules, Castor, and Pollux;
she models her statue of Diana on the Aventine on that of Artemis at
Massilia; she imitates the Greek tactical organisation in her early
phalanx. But it is very doubtful whether the obligation extended to the
reception of the political ideas of Hellas. Parallels between Roman and
Hellenic organisation may be observed in certain institutions such as the
_equites_ and the _census_; but these are military rather than purely
political, and in all the fundamental conceptions of public law—the
rights of the citizens individually and collectively, the power of the
magistrate and the divine character even of secular rule—Rome differed
widely from the developed Greek communities with which she was brought
into contact, and seems in her political evolution to have worked out
her own salvation. The more developed civilisation of Etruria doubtless
filled up certain gaps in her political and religious organisation both
by contact and by rule. The strength of the religious guilds (_collegia_)
of Rome may be due in part to an imitation of the Etruscan hierarchy; the
refinements of the science of augury may also be Tuscan; and tradition,
as we shall see, derives from the same source the _insignia_ of the Roman
king.
§ 2. _The Elements of the Population—Patricians, Plebeians, Clients_
The free population of Rome as a developed city-state was composed of
the two elements of Patricians and Plebeians. The ultimate source of
this distinction, which is undoubtedly anterior to the foundation of
the city, can only be a matter of conjecture; but the origin of the
Patriciate may probably be explained as the result partly of earlier
settlement, partly of superior military prowess. The warriors within the
pale receive the new settlers, but only on certain conditions; these
conditions are perpetuated and become a permanent badge of inferiority.
The happiest guess of the many made by Roman antiquarians as to the
origin of the Patricians was that they were originally the “free-born”
men (_ingenui_), the men who could point to fathers (_patres_) and in
their turn become full heads of families[15]—the men in short who, at a
time when the family with its juristic head, and not the mere individual,
was the true unit of life, were the only full citizens of Rome. Such
men alone could be partners in the true ownership of property, or sue
and be sued in their own right,[16] and such an exclusive right to a
full personality in private law they claimed in virtue of their public
services or privileges—the duty of taking the field on horseback or in
heavy armour, the right of uplifting their voices in the assembly when
they acclaimed a king or ratified a law.
The whole free community, other than the _patres_ or Patricians, is
regarded as the “complement” of the latter, “the multitude” (_plebs_,
_plebeii_) which, with the fully privileged class, makes up the
state.[17] It is possible that, in a very primitive stage of Roman
history, these Plebeians may all have been in the half-servile condition
of clientship; but, even when the earliest records of Rome are revealed
to us, this has ceased to be the case. Not only has the son of the
original client evolved a freedom of his own, but a man may _become_ a
plebeian member of Rome without subjecting himself to the degradation
of _clientela_. No less than five ways are described or can be imagined
in which the non-citizen could become a citizen, and at least one of
these reveals the possibility of the perfectly free Plebeian. In the
old life of the _pagus_ and the _gens_, the weaker sought protection of
the stronger by a willing vassalage, which ripened, when the state was
formed, into the Plebeiate which had its origin in clientship. A similar
position was ultimately gained by the descendant of the manumitted
slave. The stranger (_hostis_) from a city which had no treaty relations
with Rome, or no relations which guaranteed a mutual interchange of
citizenship, must, if he wandered to this new home, also make application
to a patron and become his client. It is less certain what was the fate
of the inhabitants of a conquered city who were violently deported
to Rome. The annalists, indeed, represent such men as being received
into the citizen body, and as becoming members of the tribe and the
_curia_;[18] but it is probable that in the prehistoric period they
became clients, immediately of the king to whom they had made their
subjection, ultimately perhaps of patrician houses to which he chose to
attach them as dependants.[19] In all these cases clientship may have
been the original lot of the Plebeian; but this could hardly have been
the fate of the immigrant who moved to Rome from a city which already
possessed the _jus commercii_ with that state, and by the exercise of the
right of voluntary exile from his native land (_jus exulandi_) claimed
the Roman _civitas_. The existence of such relations between Rome and
cities of the Latin league is attested for a very early period, and they
may even have been extended to cities outside the league.[20] As the _jus
commercii_ implies the right of suing and being sued in one’s own person
before Roman courts, there seems no reason why such an immigrant should
make application to a Roman patron;[21] but, if he did not, he was in
the chief aspects of private law a perfectly free man, and illustrated
a status to which the quondam-client must from an early period have
tended to approximate. Where the right of intermarriage (_jus conubii_),
as well as the right of trade, was guaranteed in a treaty between Rome
and some other town, it is questionable whether this gift ever implied
the possibility of matrimonial union with members of the Patriciate. It
is at least certain that, at the time of the Twelve Tables (451 B.C.),
and therefore probably from a very early period, a disability common to
all the Plebeians was that they might not intermarry with members of
patrician clans. Yet, although there was this great gulf parting the
two orders, it was possible for either class to be transferred to the
status of the other. We shall see that tradition represents a vote of
the Patricians in their assembly as a means sufficient to recruit their
order by the addition of a new family; while, after the Plebs had evolved
an assembly of its own, a _transitio ad plebem_ might be effected by an
act of that body.[22] Adoption from a patrician into a plebeian family
produced the same result.
That the clientship of which we have spoken was not peculiar to Rome,
but was an old established Italian institution, is a truth reflected
in the legend of the _gens Claudia_ which moved from Regillum to Rome
with a vast multitude of dependants.[23] It is separated by but a thin
line from slavery. While the latter was based on conquest in war, the
former was probably the result of voluntarily-sought protection in the
turmoil of a migratory life, or perhaps at times the consequence of
the suzerainty of a powerful village being extended over its weaker
neighbours. In the developed state the principal object of this relation
is legal representation by the _patronus_, for the client possesses no
legal personality of his own. For the condition of the client we can but
appeal to that of the slave and the son of the family. Such property as
he possessed may have been merely a _peculium_, the small accumulation
of cattle and means of husbandry which his master allowed him to form;
had the client wronged a citizen, we may assume that his body might be
surrendered in reparation of the damage (_noxae deditio_); the origin of
Roman occupation of land on sufferance (_precario_) may perhaps be traced
to the permission by the patron to till a little plot of land which
might be resumed at will;[24] in default of direct heirs (_sui heredes_)
such personal belongings as the client possessed may have fallen to the
members of the protecting clan (_gentiles_), for it was to the clan
rather than to the family that he was attached.
The description which we possess of the mutual obligations of patrons
and clients,[25] although it contains many primitive elements, obviously
refers to a time when the client was allowed to possess property of his
own and was often a man of considerable wealth, but when, in spite of
this power, he does not seem to have appeared in person in the public
courts. It was the duty of the Patricians to interpret the law to their
clients, to accept their defence in suits, and to represent them when
they were plaintiffs.[26] The client, on the other hand, was bound to
help to dower the daughter of the patron if the latter was poor; to pay
the ransom if he or his son were captured by enemies; and, if his lord
was worsted in a private action or incurred a public fine, to defray
the expense from his own property. If any of these duties were violated
by the client, he was held guilty of treason (_perduellio_), and as the
secular arm suspended him from the unlucky tree, so the religious power
devoted to the infernal gods the patron who had woven a net of fraud
for his dependant.[27] Even after the effective infliction of religious
sanctions had disappeared, the duty to the client ranked only second
to that which was owed by a guardian to his ward.[28] The earliest
clientship was strictly hereditary; but the bond must have become weaker
with successive generations, after the evolution of plebeian rights, and
at a time when _clientes_ themselves possessed votes in the _comitia
curiata_.[29] Nay, the Plebeian at this period may himself be a patron,
and his attainment of full citizenship in private law must have been
held to qualify him for this duty of protection. Yet the client body
still continues to be recruited by new members; for the antique form of
_applicatio_ still exists, and the manumitted slave owes duties to his
patron. We know too that in the fourth and third centuries the patronal
rights over the freedman extended to the second generation.[30]
A faint trace of hereditary clientship, based on a purely moral sanction,
and accompanied perhaps by the performance of some of the duties of the
old relationship, still exists in the second century. The family of
Marius, we are told, had been clients of the plebeian Herennii, and some
of the rights of the relationship were held to extend to him. But we are
also told that at this period a principle was recognised that this bond
was for ever broken by the client’s attainment of curule office,[31] that
is, by the ennoblement of him and his family.
§ 3. _Roman Family Organisation—The Gens, the Familia, the Bondsman and
the Slave—The Disposition of Property—The Conception of “Caput”_
The clan (_gens_) was an aggregate of individuals supposed to be sprung
from a common source, a social union, with common rights in private
law, which had as its theoretical basis the notion of descent from a
single ancestor. According to the juristic theory of the clan, all its
individual members would, if their descent could be traced through every
degree, have sprung from two individuals who were within the power of
this ultimate ancestor, a sign of this original _potestas_ being the
common gentile name.[32]
The members of a clan are to one another either _agnati_ or _gentiles_.
In many cases the difference of nomenclature was based merely on the
degree of certainty in the relationship. They were _agnati_ when the
common descent could be traced through all its stages; they were
_gentiles_ when the common descent was only an imagined fact, based
on the possession of a common name. As a rule _agnati_ are also
_gentiles_; but there might be groups of agnates who could never be
_gentiles_—groups, that is, of proved relationship through the male line,
who could not, for reasons which we shall soon specify, form a _gens_.
If we believe that the Roman Patriciate represented those who alone
possessed the legal status of heads of families (_patres_)[33]—since,
the _familia_ being the unit of the clan, the rights of a clan-member
(_gentilis_) imply the position of a _paterfamilias_—it follows that the
Roman _gentes_ were, as they are represented by tradition, originally
exclusively patrician, and that the terms _gentilis_, _gentilitas_
implied a perfect equality of status among the only true members of the
state.
The words became restricted to a certain section of the community in
consequence of the evolution of plebeian rights, i.e. in consequence
of the Plebeians becoming in strict law _patres familias_. The logical
consequence of this should have been, where groups of such families
bore a common name and were believed to have a common descent, that
these groups should form _gentes_. But history is illogical, and this
conclusion was not reached.
No such group could possibly form a _gens_ of its own, if it could be
regarded as having been originally in dependence on a patrician clan.
Although in course of time legally independent and freed from all
trammels of clientship, it was yet disqualified from clan-brotherhood
by this original connexion; it remained an offshoot (_stirps_), a mere
dependent branch, and could never be a self-existent _gens_. This
disqualification is exhibited in the definition of _gentilitas_ given
by the jurist Scaevola (consul 133 B.C.), which gives as two of its
conditions free birth in the second degree, and the absence of servile
blood in one’s ultimate ancestry.[34] This definition excludes from
membership of a _gens_ all those Plebeians who had sprung originally
from emancipated slaves. No one who could be proved to have the taint
of servile blood could ever be a _gentilis_. But there is every reason
to believe that _servitus_ was interpreted in a further sense, that
clientship was regarded as a quasi-servile position, and debarred a group
of families, whose ancestor could be proved to be a client, for ever from
being a clan.
As a rule it would have been difficult, if not impossible, to furnish
this proof; but there was one legal sign of it—the bearing by a plebeian
_stirps_ of the same name as a patrician clan. The presumption of the
law, in the case of the coexistence of a plebeian group of families
with a patrician group of the same name, was apparently that the former
had once been clients of the latter, and could never, therefore, form a
_gens_ of their own.[35]
But, if there were plebeian families that had no origin in clientship,
there was nothing to prevent these from being _gentes_. It is true that
Patricians sometimes made the claim that all the plebeian families had
originated from clientship.[36] But this is, as we saw,[37] probably
not true of the origin of many of the plebeian families, and there is
abundant evidence that the theory was not recognised by law. We know, for
instance, that gentile inheritances were shared by the plebeian Minucii,
and gentile sepulchres by the plebeian Popilii.[38]
The foregoing description shows that the _gens_ rests on a natural basis,
that it professedly represents the widest limits of blood-relationship;
hence it would seem to follow that it could not be artificially created
or its members redistributed; that the numbers of the clans could not
be regulated numerically, except conceivably by the addition to the
existing number of a precise number of added clans—a most improbable
procedure; and that, as being a natural and not an artificial creation,
it was a union which was not likely to be of primary importance
politically, and the rights of whose members were in all probability
those of private rather than of public law. These expectations are
verified, but the attempts to point out certain purely political
characteristics of these associations deserve examination.[39]
(i.) It has been held that the clans were the unit of voting in the
original popular assembly at Rome, the _comitia curiata_.[40] But the
passage on which this conclusion is based only implies that, originally,
membership of this _comitia_ depended on possession of a _gens_;
eventually, at a time when the _curia_ included Plebeians, on possession
of a _familia_, and therefore presumably of a _stirps_ or _genus_.
(ii.) A distinction is presented by ancient authorities between the
_gentes majores_ and _minores_—a distinction within the patrician
_gentes_ that survived into the Republic. Of the _gentes minores_ we know
but one name, that of the patrician Papirii;[41] a list of some of the
_gentes majores_ has been reconstructed with some plausibility from those
clans which furnished _principes senatus_; they are the Aemilii, Claudii,
Cornelii, Fabii, Manlii, and Valerii.[42] Tradition is inclined to
represent this distinction as having originated politically,[43] but it
is a tradition working on the impossible hypothesis that the Patriciate
derived its origin from membership of the Senate. This political
distinction doubtless existed within the Senate; but it was probably
derived merely from the respective antiquity, and therefore dignity, of
the _gentes_ from which its members were drawn. And this association
with the Senate leads us naturally to the third question connected with
the political character of the _gentes_, i.e. their relation to the
primitive council of the state. The theory of an ultimate connexion
between the two originates with the correspondence of the number of the
_gentes_ and of the Senate. Both are given by tradition as 300. The Roman
community is said to have originated with the amalgamation of three
domains (_tribus_) into one.[44] The rise of the Senate from 100, its
original number as constituted by Romulus, to 300 as its final number,
is accounted for by the gradual amalgamation of these three tribes with
their 100 _gentes_ each.[45] A parallel to the original centumviral
constitution of the Senate is found in the _centumviri_ of the Italian
towns, and is supposed to be derived from the same invariable division of
a _tribus_ into 100 _gentes_.[46]
The chief objections to this view are the symmetrical number into which
it divides the _gentes_, and the fact that the Senate is, according to
the best tradition, a body of nominees selected by the chief magistrate.
But yet there is an element of truth in the theory. The Senate did rise
from 100 to 300 in consequence of the incorporation of fresh elements
into the community, and therefore in consequence of an increase of the
_gentes_. The kings and early consuls would doubtless, in the exercise
of their powers of selection, wish to see each of the patrician clans
represented in their council. Hence the addition of new clans would add
new members to that body, and hence the inferior place occupied in the
Senate by the _gentes minores_, the younger branch of the Patriciate.
Although the clan itself was inexpansive, the number of the clans,
even in the old patrician community, was not. It was possible for new
_gentes_ to be added to the community, and even for old _gentes_ to
quit it. Tradition speaks of the reception of six clans that had once
belonged to the parent state of Alba—the Cloelii, Curiatii, Geganii,
Julii, Quinctilii (or Quinctii), and Servilii;[47] and Sabine races as
well, such as the Valerii,[48] are also said to have been admitted.
The reception of new _gentes_ was effected by the Patricians and, as
we should expect, by the assembly which represents the whole patrician
body, the _comitia curiata_, under the presidency of the king. They were
coopted by their peers,[49] and it is improbable that the patrician order
could have been recruited by the act of the king alone.[50] He might
conceivably have chosen Plebeians as members of his advising body, the
Senate, as the first consuls are said to have done,[51] although such
a selection is extremely improbable; but even this act would not have
raised such Plebeians to the Patriciate. The admission of new _gentes_
implies that foreigners, or even a portion of the plebeian body, might
be coopted into the Patriciate; in the former case it might be the
reception, in the latter the creation, of a _gens_. This possibility of
recruiting the patrician order—whether by the creation or reception of
_gentes_—ceased during the Republic, because the assembly of the Curies
came eventually to admit Plebeians, and there was no political assembly
composed exclusively of members who fulfilled all the conditions of being
_gentiles_. The only instance of the expulsion of a _gens_ preserved by
legend is that of the Tarquinii; and the decree that this whole clan had
forfeited its right to be a member of the Roman state is said to have
been passed by the Populus.[52]
The account of _gentes_ being received into the Roman community is
accompanied by a tradition of their keeping together in their new
settlement. Thus the Claudii, on the reception of the _civitas_, are
said to have received a special tract of territory across the Anio for
themselves and their clients.[53] Such a tradition at once suggests
a close connexion between the _gens_ and the soil, which there is no
reason to doubt. But the further questions have been raised, whether
the _gens_ as a whole was the owner of the land on which it settled,
and whether this was the form of common possession recognised in early
Rome. It must be admitted that tradition knows nothing of such a tenure.
Dionysius represents the territory given to the Claudii as destined to
be divided up amongst the various _familiae_ of the _gens_;[54] while
in other accounts of land-assignments we hear of such being made to the
_curia_ (φράτρα)[55] or to individuals (_viritim_),[56] but never to
the clan. Yet a plausible theory of common possession has been based on
the survivals both of legal terms and of clan rights.[57] Amongst the
terms describing early territorial possession we have, apart from _ager
publicus_, the _heredium_ and the _ager privatus_. The private possession
of the _heredium_ is attributed to Romulus,[58] and is thus regarded
as a modification of some form of common tenure; and the _heredium_
consisted of only two _jugera_,[59] an amount obviously insufficient for
the maintenance of a family. Hence there must have been _ager privatus_
as well, owned by some larger unit, and this unit would naturally have
been the _gens_. It has also been thought that the terms descriptive
of individual ownership—_manus_, _mancipium_—referred originally to
movables,[60] as though immovables belonged to a common stock. Lastly,
we find connected with the clan the survival of a corporate right to
property and collective duties connected with it. According to the rules
of regular intestate succession, in default of the _suus heres_, property
lapses to the _proximus agnatus_ and then to the _gentiles_;[61] and
it was in connexion with this right, which lasted down to the end of
the Republic,[62] that the definition of a _gentilis_ was of such legal
importance.[63] This inheritance is by the _gentiles_ as a whole, for
there is no _proximus gentilis_, and in historic times it must have
been an inheritance by individuals, the property being divided amongst
those who could prove their claim; but it may be the relic of an earlier
inheritance by the _gens_ as a corporation.
But the _gentiles_ have rights in a _corporate_ capacity as well. By
the Twelve Tables they have the guardianship of the insane[64] and
a reversionary right of guardianship over women and children.[65]
Guardianship (_tutela_) must have given them all the rights of a
person in Roman law, to exercise which they must have had a personal
representative. But this devolution itself shows the _gens_ acting as a
corporation.
Of corporate action in their own interests, or with a view to the
interests of the state, there is little evidence, although there are
traces of common activity for the purpose of keeping up the dignity of
the family. The patrician Claudii repudiate by common agreement the
_praenomen_ “Lucius,” because two of its bearers had been respectively
convicted of highway robbery and murder,[66] and the patrician Manlii
renounce the _praenomen_ “Marcus” in consequence of a crime committed
by a clansman of that name;[67] but such an agreement could hardly in
historical times have had other support than the will of individual
members to observe it. Perhaps the closest of the later ties of the
_gens_ were its common worship and sacrifices. They never, as in Greece,
rose to the rank of great public worships, but excessive care was taken
by the state to maintain them; chiefly from the view that, if the worship
of a race died out, the community would lose the favour of the divinity
to which it had belonged. Hence the close connexion of gentile _sacra_
with property and inheritance.[68] Property, in the last resort, passed
to the _gentiles_; and the _sacra_, that they might be maintained, were
a necessary burden associated with it. For the _sacra_ to pass out of
the family was of little importance; had they passed out of the _gens_,
there was no security for their continuance. In cases of transition from
a family of one clan to a family of another, it was the duty of the
_pontifices_ to inquire how the continuity of the sacred rites might be
maintained,[69] and hence one of the forms observed in the case of a
change of _gens_ by adrogation was the _sacrorum detestatio_, a public
declaration that the individual who sought this change had ceased to
claim any participation in the _sacra_ of his race. The care for the
continuity of the _sacra_ of the clan was long one of the professed, and
perhaps real, bars to marriage between Patricians and Plebeians.[70]
This question of the _sacra_ is an index to the fact that membership
of a _gens_ might be either natural or artificial. The natural mode of
entrance was by birth; and in the case of the patrician clans, before
the right of intermarriage was extended to the Plebs, marriage with a
patrician mother and by the ceremony of the _confarreatio_ was necessary
to constitute _gentilitas_ for the child. Later any form of marriage
sufficed, as it had doubtless always done in the case of the plebeian
clans. The child, in accordance with the patriarchal principle, belonged
to the clan of his father.
The form of religious marriage peculiar to the Patricians necessitated
a change of _gens_ on the part of the wife; for a woman married by the
ceremony of _confarreatio_ became a partner in the property and _sacra_
of her husband,[71] and there is even some trace of her having originally
changed her gentile name as well.[72] The ordinary plebeian form of
marriage by mere agreement (_consensus_), which ultimately became almost
universal, did not lead to a woman’s falling into the _potestas_ of her
husband, unless this power were assumed, originally by prescriptive right
(_usus_), later by the ceremony of fictitious purchase (_coemptio_).
In such a case she became a member of her husband’s family, but it is
questionable whether the logical conclusion was pressed and she also
became a member of his _gens_. The anomaly, if it existed, may perhaps
be explained by the fact that the Plebeians, who evolved these forms of
marriage, had, as a rule, no _gentes_.
The clan might also be changed by adoption. _Adrogatio_—perhaps the
only form known to the old patrician community—was the method by which
the head of a family voluntarily submitted himself to the _potestas_ of
another. _Adoptio_, on the other hand, was the change from one _potestas_
to another. If there was a form of true adoption by patrician law,[73]
it has been lost to us, and the earliest that we hear of is the plebeian
form by threefold sale recognised in the Twelve Tables. At a later period
it might also be effected by a written testament.
The family (_familia_)[74] in its original and proper meaning is the
aggregate of members of a household under a common head; this head was
the _paterfamilias_—the _only_ member of the household who possesses
legal rights.
The two ideas underlying the Roman conception of the family are those of
unity and power, and both are singularly perfect. The former is attained,
and the latter exercised, by the head. It is through him alone that
the family is a person; and the authority he wields over the members
subordinated to his will is called _potestas_.[75] The power over the
children is described as _patria potestas_, as over the slave it is
_dominica_. The two do not differ legally; there is only a difference
of ethical signification. Under this _potestas_ fall, firstly, the
children, both sons and daughters; secondly, the descendants of these
children; thirdly, the wife united to her lord by a form of marriage
which makes her a member of the family; fourthly, the wives of the sons
and grandsons who have entered the _familia_ by a similar binding form
of marriage. There is a complete absence of independent rights amongst
these members of the household. As to the wife, any property that she
might be possessed of, or which she acquired, passed absolutely into the
power of her husband. He was responsible for her conduct and possessed
the right of moderate chastisement. Severer punishment for wrongs to the
household required the support of the family council. No legal action
might be brought by the woman against her lord, for they were not two
personalities, but one. He might divorce her on good grounds,[76] but if
she were married under a form which subjected her to his power, she had
no legal means of freeing herself from his tyrannous rule. Her position
is that of a daughter and she inherits equally with her children. The
decision as to whether the child of the marriage was to be reared
(_liberi susceptio_) belonged to the father, but was, in the interest
of the state, subjected at an early period to certain modifications.
The “laws of Romulus”—that is, the early pontifical law—enjoined the
rearing of every male child and of the first-born of the females; the
exposure of offspring was to receive the assent of five neighbours,[77]
and disobedience of these canons was to be visited with severe penalties
on the parent who neglected the welfare of the state. The children and
their descendants are never released from the absolute rule of the
father as long as he lives. They cannot own property; for all that they
acquire belongs to the common stock and is at the disposal of the head
of the family. At best the father might permit the son, as he might
permit the slave, to employ his own earnings for his own use. This is
the _peculium_. Yet the grant is a mere concession, and one which may be
withdrawn at any moment. If the son dies it lapses to the father; if the
father dies it falls to the heir.
The child, as having no property, cannot give satisfaction for
wrongs which he has committed. He is regarded as irresponsible, and
responsibility for his conduct devolved on the father, who might either
give compensation to the injured man, or surrender the delinquent for
him to visit with his vengeance, or to use as a means of working out the
damage (_noxae deditio_);[78] in the latter case the child becomes for
ever the property of another. The father might sell him; if beyond the
limits of the country, the son becomes a slave; if within the limits, he
is one in private though not in public law (_in causa mancipii_), and
exchanges servitude to the father for that to the purchaser. In an age
which recognised no free contract of labour, the sale of the son was a
means of putting him out to business.[79] The injunction of the Twelve
Tables (perhaps the recognition of a custom far earlier than this law)
that the thrice-repeated sale of a son involved loss of the _patria
potestas_,[80] was an attempt to put an end to an inhuman traffic. The
child as a thing might be stolen or detained, and as such be the object
of recovery. In this case the father “vindicates” him as he would a
chattel or a beast that had strayed from the homestead.[81]
The father might scourge or imprison his child,[82] even put him to
death. The formula employed in adrogation (the procedure by which a
man puts himself into the paternal power of another) shows that the
_jus vitae necisque_ was the most distinctive aspect of the _patria
potestas_.[83] It was a power never questioned throughout the whole of
Republican history, and which received no legal limitations until the
time of the Middle Empire.[84] Sometimes it was employed as a means of
saving the honour of the family, and there are instances of the son
guilty of theft, the daughter of unchastity, being thus put to death;[85]
sometimes it was enforced in the interest of the state to punish a public
crime.[86]
Although law is in a sense an outline of life, it would be very
misleading to fill up the content of Roman private life by analogy with
this harsh outline. Like most of the theory of Roman law it had little
correspondence with the facts; and this non-correspondence of fact and
theory is the source of the strength and the beauty of Roman family life.
If legal obligations do not exist between husband and wife, father and
child, their place, in a civilised community, must be taken by moral
obligations; and the very absence of legal sanctions will make these
moral bonds peculiarly strong. It was so with the Roman family. It was an
isolated, self-existent unit. The members clung closely to one another
and to their head. The power of the father—the source of the unity of the
household—fostered the devotion to the hearth, the love of home, which
is such a distinctive attribute of the Roman. It created the belief that
the members of the household, owing allegiance to a common chief, should
act loyally by one another in all the relations of life, and loyalty
to a living head begat loyalty to his predecessors; traditions of this
union as persisting under the rule of a long line of deceased ancestors,
account for the hereditary policy of Roman houses—the championship of
principles advocated for centuries by such clans as the Valerii, the
Porcii, and the Claudii.
The moral influence on the _pater_ was also great. He defends, not
his own selfish rights, but the rights of a corporation dependent on
him; “self-help” is the essence of the principles of early Roman law.
In private matters the authority of the state is weak, that of the
individual strong. The rule of the Roman father was the benevolent
despotism that embraces many within the sphere of its despotic interests,
that forces others to observe its rights because its interests are
_not_ personal, that produces a deep sense of moral and religious
responsibility towards the weak, a stern unyielding attitude towards the
man who would infringe upon their rights. The only “individual” known to
Roman law is the _paterfamilias_, but his was a glorified individuality,
which, through its rule over the family, gathered strength to rule the
world.
If it be thought that the loss of character must have been proportionally
great in the case of the dependent members of the household, it must
be remembered that the _patria potestas_ is, for the individual, a
transitory condition of things. Each subject member is preparing himself
to be a _pater_ in his own right. With the death of the existing head,
_all_ the hitherto dependent members are freed from the _potestas_; each
forms a _familia_ of his own; even his grandchildren by predeceased
sons become heads of houses; the daughters are also freed from power,
although, out of deference to the weakness of the sex, they are still
under guardianship (_tutela_).[87] The family splits up into a number
of _familiae_, and none of these is of more importance than the other.
For the evils of primogeniture were unknown to Roman law. No hereditary
caste based on the accident of birth was ever formed; and when we find
an aristocracy of birth arising, it is the fittest son who can succeed
his father in political office; for the bulk of the property, on which
political influence was based, has not passed into the hands of some
incapable elder brother.
But, apart from the moral checks on the authority of the father, which
the absence of legal restraints made peculiarly strong, the civil law,
public opinion, and the positive morality which found expression through
certain religious or semi-religious organs, did impose certain restraints
on a possible abuse of power. If the father is a lunatic (_furiosus_)
he is, with his property, put under the care of his next of kin;[88] if
he is wasteful (_prodigus_) and is squandering the property, of which
(though legally it is his own) he is regarded only as the trustee, he is
debarred from all commercial relations (_commercium_)[89] and prohibited
from disposing of goods of which he is an unworthy administrator.
A very real customary control, one not actually enjoined by the civil
law, but enforced by the powerful sovereign, which the Romans called
the custom of their ancestors (_mos majorum_), was the obligation
incumbent on the father of consulting a council of relatives (_consilium
domesticum_) before taking any extreme step with respect to the members
of his family. This was never limited to the agnatic circle; it admitted
blood relations and relatives by marriage, while personal friends outside
the family might be summoned as well.[90] Any severe punishment of a
child and the divorce of a wife had to be submitted to the judgment of
this assembly. How strong the sentiment in favour of this procedure
was may be judged from the fact that in later times we find the censor
(in Republican times the personal exponent of the moral sense of the
community) degrading a senator who had divorced his wife without taking
advice of the family council.[91] The sentiment was but one expression
of the principle which runs through the whole of Roman life, that no man
should act in an important matter without taking counsel of those best
qualified to give it.
Certain extreme abuses of the paternal power were prohibited by religious
law (_fas_), which in such cases enjoins _capital_ penalties. By a
supposed law of Romulus, a man who sells his wife is to be sacrificed
to the infernal gods; if he divorces her without due cause, half
of his property is to be confiscated to his wife and half to the
goddess Ceres.[92] With the secularisation of Roman law such penalties
disappeared, and it is questionable whether they often required
enforcement,[93] for such religious bans are mainly the expression of a
strong moral sentiment.
Lastly, there was the principle that the paternal power cannot interfere
with the _jus publicum_. It is a principle that applies both to persons
and to property. In its first application it means that the son can
exercise his vote independently of the paternal control; that he can
fill a magistracy which subjects his father to his command; that, at
least in later times, even the function of guardianship (_tutela_) can be
exercised without the father’s will; for this, too, is a public duty.[94]
With respect to property, public law, though not infringing on the theory
that all goods belong to the _paterfamilias_, yet does not regard them
as the object of purely individual ownership. The father is rather a
trustee than an owner, and even under the Servian constitution, that is,
according to tradition, before the close of the monarchy, the value of
a freehold is taken to qualify the members of the _familia_, not merely
its head, for service to the state, and ultimately for the exercise of
political rights.[95]
An instance of the triumph of the state in its conflict with private
property is furnished by the position of the bondsman (_nexus_). It
may be appropriately discussed here; for the _nexus_ is in private law
practically in the position of the son under power. He was a man who
had contracted a debt on the security of his person,[96] and who, on
non-fulfilment of that obligation, had had his body and his services
attached by the creditor. In private law he is a slave; in public law
he is a free-born Roman citizen, and may be summoned for service in the
legions when the state needs his help.
It would be an anachronism to enter on a full treatment of Roman
slavery in connexion with the beginnings of Roman history. Almost all
that we know of the legal relations of slaves to their masters, of
their capacities and their disabilities, their hopes of freedom, their
position in the home, and their influence on the public life of the city,
refers to a far later period. Yet the class doubtless existed from the
earliest times, and as Roman legal conceptions became modified but never
completely altered by the course of time, it is possible to give a faint
outline of the conditions of slavery in the Regal and early Republican
periods.
Slavery may at all periods of the history of Rome be defined as an
absence of personality. The slave was a thing (_res_) and belonged
to that more valuable class of chattels which the Romans called _res
mancipi_, and which included land and beasts of burden. He was,
therefore, a part of the homestead (_familia_),[97] the transfer of any
portion of which required the most solemn forms of Roman law. As a thing,
the master is said to exercise _dominium_ over him; he might deal with
him as he pleased, and had over him the power of life and death. The
slave, on the other hand, has not only no rights against his master, but
cannot conclude legal relations with others. He has no legal relatives,
no legal wife; he may be permitted to retain the fruits of his own
labour, but even his master’s will cannot make it his property. How far
this “thing” possessed a potential personality we do not know—how far,
that is, the personality inherent in him could be realised by subsequent
emancipation. Liberation could at best have raised the slave to the
condition of the client at this early period—a slight ascent in the scale
of actual rights, but one that might have been valued for the greater
personal freedom and the surer guarantee of religious protection which it
gave. But the fact that the slave is a part of the homestead, and at the
same time an intelligent being, makes him in the truest sense a member of
the family. The owner is said to have power (_potestas_) over him, a word
which is used only of rule over reasonable beings; and this _dominica
potestas_ does not differ essentially from the _patria potestas_ which is
exercised over the son. The treatment of the two was doubtless different,
for the one would some day be a lord, the other would remain a slave, but
their legal relation to the _dominus_ was the same.
But the legal status of the slave is no true index of his condition.
This will depend on two factors, his origin and his _social_ relations
to his master; and on both these grounds the early slavery of Rome must
have compared favourably with that of later times. The slave trade was
probably unknown, and the condition must have been mainly the result
of capture in war from neighbouring states. Slavery is not altogether
degrading when it is wholly the consequence of the laws of war. The
slave was an Italian, perhaps of as noble birth as his master, and this,
though it may have aggravated the bitterness of the lot, must have
rendered possible an intimate social intercourse which would not have
been possible with the barbarian, and must have forced on the master’s
mind the conviction that a sudden turn in fortune’s wheel might place
_him_ in the same position in the city of his serf. Again, the servitude
was domestic; whether employed in the home, or on the common lands of
the clan, or on the petty plot of ground that the master called his own,
the slave was never severed from his master or his master’s kindred.
We hear in early times of his sitting at his master’s table,[98] and
of his being the tutor and playmate of his lord’s children.[99] He may
in some cases have been better off than the client or the unattached
Plebeian engaged in some petty trade. Certainly the opportunities for the
primitive culture afforded by the Roman household were more open to him
than to the other orders excluded from the Patriciate. In the case of
domestic slavery extending over a small area, public opinion is generally
a powerful restraint on the master’s caprice. We do not know whether this
opinion found a religious expression in such principles as those which
protected the client’s rights; but the fact that the censor of the later
Republic, who perpetuates the obligations of religious law, punishes acts
of cruelty committed by the _dominus_,[100] may show that the slave was
not wholly without the pale of divine protection.
If, as we have seen, the Roman’s chief mode of livelihood, the land, was
not his own property but that of the clan, no individual disposition
of it during lifetime or after death was possible, although there may
have been some right of bequest over the movables classed as _res nec
mancipi_. When the theory of common possession was modified by the
recognition of a heritable allotment, bequest may have become possible;
but doubtless intestate inheritance still continued to be the rule. A law
of inheritance is first known to us from the Twelve Tables, which allowed
the utmost freedom of bequest and legacy; but there was a survival both
of theories and practices which show that testamentary disposition was
originally regarded as the exception and not the rule.
First, we may notice that even in later times the immediate heirs of a
man were regarded as having a claim to property, a kind of potential
ownership, during the lifetime of the _pater_, and that inheritance is
regarded merely as a continuation of ownership (_dominium_);[101] and in
accordance with this view we find the practice of holding an inheritance
in joint ownership, the co-heirs bearing the name of _consortes_.[102]
Secondly, the earliest testaments of which we have knowledge were
public acts performed before the _comitia_ of the people. The most
ancient was the patrician form of testament—the _testamentum comitiis
calatis_—effected at the _comitia curiata_ which were summoned
(_calata_) twice a year for this purpose.[103] The original purpose of
this public testament is obscure. It is possible that originally it
took place when there was no direct heir (_suus heres_) to receive the
inheritance, and that it was accompanied by some form of adoption of
a successor. The person adopted might have been the son belonging to
another family; although of such a procedure there is no further trace in
Roman law.[104]
The publicity of the act and the infrequency of its occurrence show
how exceptional a will must have been, and that the normal mode of
succession was that by intestacy. But we have no warrant for saying
that this testament at the _comitia calata_ was an act of private
legislation and was permitted by the assembled burgesses. The gathering
was perhaps merely a form, and the persons assembled may have acted only
as witnesses;[105] but the very publicity would have made it almost
impossible to pass over a son of the family, unless there were expressed
grounds for his disinheritance.
The second kind of public will was the military testament (_in
procinctu_),[106] but our authorities leave us in doubt as to whether
this testament could be made in any gathering of the soldiers prepared to
meet the enemy and in any place, or whether it was a formal act possible
only in the great gathering of the _exercitus_ in the Campus Martius—that
gathering which was finally organised as a legislative assembly, existed
by the side of the assembly of the Curies, and came to be known as the
_comitia centuriata_.
In the first case it may have been an old patrician form of testament, an
informal will permitted in an emergency, perhaps to enable a childless
soldier to transmit his inheritance. We do not know whether it had
absolute validity, or only a validity dependent on circumstances, such as
the absence of direct heirs, or the satisfaction of religious conditions
approved by subsequent pontifical scrutiny; on this hypothesis the
comrades of the testator could hardly have acted other than as witnesses
to the will.
On the second hypothesis it would have a closer analogy to the testament
made in the _comitia calata_, and may have been introduced only when
Plebeians were admitted to political rights in this assembly. It is true
that this is not a necessary conclusion, for the _patres_ gathered armed
for war in the Campus long before the enrolment of the Plebs for military
duties or their admission to political rights; but we may at least say
that, when this enrolment and admission were effected, this form of
testament could be used by the Plebeians. If we accept the traditional
date for the Servian constitution, it was common to the two orders before
the close of the monarchy.
But there was a third type of will, one purely plebeian, which from
the comparative simplicity of its form and the readiness with which
it could be employed (since it did not depend either on chance or
formal gatherings of the people) gradually came, in its subsequent
developments, to replace all others, and became the prevailing Roman
form of testament-making. This was the testament _per aes et libram_,
one use of the _mancipatio_ or solemn transference of property “by
the copper and the scales.” In the form in which it is known to us,
it is a late development, for the sale of the property has entirely
ceased to be a real, and has become a fictitious sale; the mancipation
in fact has become a mere formality, and its employment is said to
have been dependent on the condition that the testator “subita morte
urguebatur”[107]—a condition which implies that the comitial testament
could in ordinary cases be resorted to. But as the Plebs had originally
no access to this form of will, the testament _per aes et libram_
must have been in use among them long before its recognition as a
form valid for the whole community. It was then regarded as a mere
formal application of the mancipation to a special emergency, and as
supplementary to the comitial testament; until its superior utility
came to be recognised, the sentiment in favour of a free disposition of
property grew to be strong, and the Twelve Tables, which effected the
triumph of plebeian over patrician forms of procedure, recognised it as
the normal mode of testate disposition.
By this act the testator, in the presence of five witnesses and the
_libripens_, transferred the whole of his patrimony (_familia_) into
the custody and guardianship of a person called “the purchaser of the
family” (_familiae emptor_). In order to make a legal disposition of his
property the vendor makes a formal announcement of the purport of the
sale, and the buyer, as he pays the single copper coin for the patrimony,
repeats the same form of words, “Let my custody and guardianship of your
patrimony be purchased by this coin, to the effect that you may make a
legal testament in accordance with public law.”[108] The words, which
may not represent the most ancient formula, show that the _familiae
emptor_ is a mere trustee. Although the transference does not appear
to have been conditioned by any express stipulation on the part of the
vendor,[109] it was understood that it should only take effect on the
death of the testator. On this the _familiae emptor_ becomes guardian of
the patrimony. He is not an heir but an executor, who distributes the
property in accordance with the instructions of the testator from whom he
has purchased.
The second stage is reached by the added importance given to the form of
instruction (_nuncupatio_) uttered by the vendor. The Twelve Tables gave
absolute validity to such instructions,[110] and the mere expression of
the will of the testator came to be considered the essential part of the
testament. In this announcement a true heir (_heres_) could be mentioned,
and the _familiae emptor_ sinks into the background. It is true that
his presence is still necessary to the ceremony; he still professes to
take the patrimony into his guardianship; but, like the man who holds
the scales and the five witnesses, he is merely a formal assistant. The
testament has ceased to be a contract; it is a one-sided expression of
will and an arbitrary disposition of property. It may be either verbal or
written; the last stage in the history of the civil testament is reached
when the testator is allowed to exhibit a document to the witnesses of
the mancipation with these words, “These waxen tablets contain my will
and bequest; I ask you, Quirites, for your testimony.”[111]
Thus at a very early stage of Roman history, perhaps as early as the
middle of the fifth century B.C., a man could exercise the most absolute
power over the disposal of his goods. The only limitation was that the
direct heirs (_sui heredes_) must be formally disinherited if they were
to lose their rights. A mere passing over of a _filius familias_ without
formal disinheritance (_exheredatio_) rendered the will invalid; and in
this case the _sui_ succeeded to the vacant estate.
The social and political effects of such a dangerous liberty as the
right of arbitrary testamentary disposition depend upon its use, and
its use depends on the character of the people. The Roman character
was, at all periods of history, devoted to the hereditary theory. It is
one that was so strongly believed in that it asserted itself in spheres
where it was never contemplated—during the later Republic in succession
to office, in the early Empire in the succession to the Principate—and
as applied to property it was an essential condition of the permanence
of the Roman family. For the maintenance of a house a rigid system of
intestate inheritance is bad; it may not produce great wealth, but it
often produces great poverty. The only satisfactory system is a minute
examination of each particular case by the state or by individuals.
Such a control by the state was utterly alien to the _laisser faire_
principles of the Roman, and history shows that the Decemvirs were right
when they entrusted this discretionary power wholly to the _pater_. His
functions as trustee were but extended to a period beyond his lifetime,
and freedom of bequest was used as a means of equitable adjustment of
property to the circumstances of the members of the family. The son who
had made a rich marriage need not receive so much; the one destined to
carry on the family traditions of office might receive more than the
others. To him the _heredium_ might be given, while the younger sons
were drafted into colonies. We do not know the principles; but that the
principles tended to the preservation of the family is proved by the long
traditions of the noble Roman houses.
A legal view of the Roman family would be incomplete without
consideration of the rights or infringement of rights dependent on it.
The full legal status of a Roman citizen was designated by the word
_caput_. It denoted all the rights that he possessed, but primarily it is
a conception of public law, for the possession of private was originally
regarded as an annexe to the possession of public rights. Thus _caput_
is retained even though the exercise of private rights is hindered for a
time, as it is in the case of a son under power; the _filius familias_
possesses a _caput_, although it is modified by his subjection to his
father. This theory of the dependence of private on public rights, common
to Greek and Roman law, probably accounts for the perpetual tutelage of
women. The _materfamilias_ holds an honourable position in the household;
she is its queen, as her husband is its king, but yet she is subjected
by marriage to the legal position of her own daughter, and, on her
husband’s death, is in the custody of her sons; for a primitive society
cannot be brought to believe that a being who cannot fight, and may not
fill offices of state or exercise a vote, is capable of looking after
its own interests. Appearance before a court of law at Rome, whether for
the purpose of defending one’s own or another’s rights, was regarded
as a public act; and Roman sentiment so strongly disapproved a woman’s
taking part in public life that, when one was found bold enough to plead
her cause in the Forum, the Senate in alarm made an official inquiry of
the gods what the portent signified.[112] It is possible that in the
earliest stage of Roman law women were not regarded as having any rights
to defend; later they are regarded as having rights, and therefore a
_caput_, but as incapable of defending them. When, in the latest stage,
the disabilities of sex disappear partly through enactment,[113] but
chiefly through a series of legal fictions, the capacity of women to
defend their own interests first emerges.[114]
The limitation by which a series of civil rights is destroyed is spoken
of as a “lessening of _caput_” (_capitis deminutio_). It is in every
case an infringement of rights already possessed by the individual. Now
the loss of public rights could only follow on a loss of citizenship;
but this is not the diminution but the annihilation of _caput_, and
could not therefore in the earliest stage of Roman law (when there was
no status recognised but that of citizenship) be called a _capitis
deminutio_. The term must have been wholly confined to a loss of private
rights, i.e. to the loss of the rights conveyed by the control of a
_familia_.[115] Thus the _adrogatus_ suffers a lessening of _caput_ by
passing into the power of another. But a change from a higher to a lower
status (even when the higher did not imply active rights) may at an early
period have been regarded as an infringement of _caput_. We know, for
instance, that the _datio in mancipium_ of a son of a family was thought
(at what period is uncertain) to involve it, because the child passes
from a better to a worse station, although in his former condition he
had no active rights of his own. It is stranger still that, certainly
at an early period, the fact of a woman’s passing into her husband’s
power (_conventio in manum_) was held to have this consequence. It is
one that is scarcely intelligible in the case of a _filia familias_ who
passes from one _potestas_ to another; but in the case of a woman only
under the burden, lighter and ever tending to be more relaxed, of the
_tutela_ of her relatives, it is a natural though not strictly legal
conception.[116] Some other applications of the system are still more
artificial, and are perhaps creations of late Roman jurists who came to
consider that the essence of a loss of _caput_ was a change of status
(_status commutatio_).[117] Thus adoption, which is the change from
one _potestas_ to another, and even manumission, which is the freedom
from power, were supposed to involve it. These applications contain some
historical truth only in so far as both these changes involve a temporary
mancipation.
The original _capitis deminutio_ is thus a purely private law conception
and implies the distinction between persons _sui juris_ and _alieni
juris_. To the first category belong those who are free from the power of
another, to the latter those who are under the _potestas_, _manus_, and
_mancipium_; amongst citizens, therefore, the son, the wife, and any one
mancipated to another. The person _alieni juris_ is not altogether devoid
of private rights, but they are singularly incomplete in their effects.
Thus the son under power has the right of marriage (_conubium_), but the
children of the marriage are not in his power but in his father’s; he
has (if not in the earliest period, yet throughout the greater part of
Roman history) the right of taking part in the legal business of trade
(_commercium_), yet all that he acquires by this business belongs to his
father. In his case, however, the condition is transitory, while in the
case of the slave and the _mancipatus_ (apart from the possibility of
emancipation) it is permanent.
Conversely, the fact of being _sui juris_ does not always imply freedom
of action; this might be limited through consideration of age or sex.
Minors and women may be free from _potestas_, but the former were subject
to a temporary, the latter originally to a perpetual _tutela_.
§ 4. _The Citizens and the Political Subdivisions of the State_
The whole collection of Roman citizens forms the _populus Romanus
quiritium_,[118] or _populus Romanus quirites_.[119] Of the terms thus
placed in apposition, _populus Romanus_ is the more general descriptive
name, and _quirites_ the official title by which the citizens are
addressed in the assembly. Yet both words appear to have the same
signification; _populus_ is the armed host,[120] and the _quirites_ are
the “_bearers of the lance_.”[121] If the latter etymology is correct,
the word _quirites_ came, by a course of development which finds many
parallels in Roman history, to mean exactly the opposite of its original
signification. At the end of the Republic it signifies the citizens in
their purely civil capacity, wearing the _toga_, the garb of peace, and
exercising political functions within the city; Caesar once quelled a
mutiny of his legions by addressing them as _quirites_, showing by this
address that they were disbanded and were no longer soldiers.[122]
A more real historical difficulty with respect to the original
connotation of these words, is to determine whether they denoted the
whole people, Plebeians as well as Patricians. Roman records do not use
_populus_ as equivalent to the patrician community alone; but these
records all refer to a time after the Plebeians had won political
rights, at least the rights of serving in the legions and of voting. If
_populus_ and _quirites_ denoted the aggregate of fighting, and therefore
privileged, men, they must have originally referred exclusively to the
patrician community. After the Servian constitution the words denote the
whole people (_universus populus_). _Populus_ and _plebs_ are henceforth
only distinguished as the whole to the part—the distinction being
necessary, since the Plebs continued to form a corporation apart, and
this corporation excluded the patrician families.[123] So, in a later
official formula, _senatus populusque Romanus_ denotes two corporations,
the latter composed of all the members of the state, but in this the
individual members of the smaller corporation are included.
_Civis_, a word of uncertain origin, signifies less definitely than
_quirites_ the possession of active political rights. Hence its
application to women and to the partially-privileged members of the
state—to those who were, at certain periods of Roman history, given
rights in private law, while debarred from the exercise of the suffrage
or the attainment of office. It is possible that the distinction between
the full citizen (_civis optimo jure_) and the partial citizen (_civis
non optimo jure_), although probably not a primitive,[124] may yet be an
ancient conception of Roman law. Those Plebeians who had never been,
or who had ceased to be, entirely dependent on a _patronus_ for the
exercise of their legal rights, would practically have belonged to this
latter class. Before the reform of Servius, which gave them political
privileges, they might have been called _cives_; it is only after this
reform that they could have been called _quirites_. It was, perhaps, in
consequence of this change in the constitution that _cives_ replaced
_quirites_ as the designation of the full citizens with reference to all
their rights.
If we ask what the original rights of the citizen of Rome were, it is
impossible to frame a simple category applicable to all the _cives_.
Taking our stand at a period just before the Servian reforms, we find
that private rights were possessed in varying degrees by all the members
of the community. These rights are generally summed up as those of
trade and of marriage (_commercii et conubii_). The first is the legal
capacity to acquire full rights in every kind of property, to effect its
acquisition, and to transfer it by the most binding forms, and to defend
the acquired right in one’s own person by Roman process of law (_legis
actio_). This _commercium_ was possessed equally by the Patricians and
the free Plebeians. It was no infringement of the right of commerce that
the right of occupying domain-land wrested from the enemy may for a long
time have been possessed only by the dominant order;[125] for such land
was not acquired, but only held on a precarious tenure from the state,
and the privilege was, perhaps, one of fact rather than of law. The _jus
conubii_ is the right to conclude a marriage which is regarded as fully
valid by the state (_matrimonium legitimum_ or _jure civili_), and which,
therefore, gives rise to the _patria potestas_. This right was possessed
by the Patricians and by at least the free Plebeians, but by each class
only within itself. There was no right of intermarriage between the
orders, and the member of each effected his position as a father by
a different ceremony.[126] The rights consequent on membership of a
clan—those of inheritance and of religious communion—were, as we saw,
probably shared with the Patricians by those Plebeians at least whose
ancestors had never been in a condition of clientship.
Public rights—those of voting, of serving as a fully-equipped soldier
in the legions, and probably of holding office as a delegate of
the king—were possessed exclusively by the Patricians; and to these
privileges we must add the right of holding the fullest communion with
the gods (_jus auspiciorum_).
_Auspicium_, or the divination by birds, came eventually to be applied to
any circumstance that might be interpreted as an expression of the will
of the gods. The capacities of human beings with reference to these signs
are partly a right of invoking, partly a power of interpreting them. Both
the right and the power rest on the assumption that there is a medium of
intercourse between the national gods and the citizens of the state,[127]
and the peculiarities of the conception which the Romans formed of this
divine patronage are shown by their views both of the nature of the
revelation and of the qualifications requisite for the “medium.”
(i.) The revelation is not an answer to a question about future events,
for true divination is not an attempt to pry into the hidden counsels
of the gods; this profession of the Chaldaeans was never looked on with
favour at Rome, and no science of the future was encouraged by the state.
The Roman consultation of the gods is only employed as the test of the
rightness of an already formed human resolution.[128] It tells men only
whether they are to carry out a course of action already purposed; it may
confirm them in it or warn them from it; and it is the duty of men to
seek a sign either of encouragement or of warning. It is of the highest
importance to remember this view of the guidance of the gods, for it
is the chief sign of the way in which the Romans, in spite of their
genuinely religious spirit (nay, as an outcome of it), subordinated the
theocratic to the lay element. The chief effect of this subordination
is the unfettered use of human reason; religion is employed as a test,
rather than as a guide, of rightness of action. This is a thoroughly
lay view of the function of religion in life, very unlike that of the
Jewish prophet who questions God in detail, but only for interpretation
of a law which is the product of His, not of the human will. The
belief that the gods do not give instruction, but merely advice, gave
an “inward freedom” to the Roman, which made him at times resent the
divine interference, and we shall find many instances of his forcing an
interpretation to suit his wishes. The omen that is not seen need not
be attended to, and precautions are taken that it shall not be seen. In
undertaking acts of state, the magistrates are bound to ask for signs;
but all the efforts of human ingenuity are directed to secure that the
signs shall be favourable.[129]
(ii.) It is plain that, on this theory of religious intervention, no
priestly medium is required between the gods and their worshippers.
Divination as the science of the future is an elaborate art, which
cannot be possessed by the ordinary man. It requires the knowledge of
ritual to compel the divine utterance; it assumes that the gods have
special confidence in the select participators of an inner cultus, to
whom they reveal what is hidden from the many; it requires the devotion
of a lifetime, and often special rules of asceticism and purity, to
interpret the hidden signs; it leads, in short, to the belief in oracular
power, in the prophetic gift, in the claims of a priesthood specially
set apart.[130] There was none of this at Rome. The right of invoking
auspices is not a priestly gift; it is one that is possessed, in a higher
degree by the magistrate, in a lower degree by all the full citizens of
the primitive Roman community. It is true that there is a class of wise
men, the augurs, whose chief function is the interpretation of signs,
but their function is limited to interpretation; they have no more power
than any private individual, and less power than the magistrate, of
eliciting such a revelation. Yet, if the assistance of the augur was
called in, and his interpretation given, this verdict was final. We are
told that disobedience to it, at least by the magistrate in taking the
public auspices, was in early times visited with a capital penalty;[131]
a statement which probably means that the heads of the Roman religion,
the pontiffs, reckoned such an impiety as one for which the gods
would accept no expiation, and for which, therefore, the penalty of
excommunication (_sacer esto_) was pronounced.
The right of taking the auspices is said to have been a gift peculiar to
the Patricians; but the extent of this gift can be estimated only with
reference to a fourfold division of the auspices, which, from its nature,
must have been primitive and not a creation of the later _disciplina_ of
the augurs.