_oblativa_.[132] The _auspicia impetrativa_ were those which were sought
and asked for, and such signs might be taken from observation of the sky
or from the flight or sounds of birds. The _oblativa_ were those which
were forced on the attention, and which, since they were not sought,
were generally regarded as an impediment to action, and, therefore, as
unfavourable. They were gathered from a heterogeneous collection of signs
of ill-omen (_dirae_). It is plain that the right to take or, as it is
expressed, to have auspices (_habere auspicia_) can refer only to the
first of these two categories; it was this right that was assumed to be
peculiar to the Patricians; it was the members of the original clans
alone, the primitive _patres_, who had the right of asking signs of the
gods, and it was held that every important act of their lives, whether
public or private, should be pervaded by this divine intercourse. It was
believed that it was through auspices that the city had been raised,
political development attained, and former victories won.[133] The
existence of the patrician order is from this point of view a necessary
condition of the existence of the state itself, for without it the right
of eliciting the divine will would be wholly lost.[134] But no human
power could prevent the Plebeians from following the religious scruples
of their betters in giving heed to those warnings which were thrust upon
their notice. The _auspicia oblativa_, whether the gods destined them for
others besides the patrician body or not, must from the earliest times
have been respected by the Plebeians, and have guided their political
conduct when they became a corporation within the state.
The right of _taking_ auspices was neither a priestly nor even a
magisterial function, but was possessed by every Patrician. But the man
in a private capacity could exercise it only in his private concerns; the
auspices destined to guide public action are vested in the person of the
patrician magistrate. Hence the distinction between _auspicia publica_
and _privata_. There was a time when no important act of business or
domestic life was undertaken without an appeal for divine guidance.[135]
Marriage especially demanded the taking of the auspices; and even when
the custom of such private divination had become wholly discarded, a
survival of the custom is found in the presence of _auspices_, friends of
the bridegroom who superintend the due performance of the rites.[136] The
_confarreatio_ was older than the traditional institution of the augural
college, and it is not probable that official intervention was brought
to bear on marriage, still less on such concerns as were more strictly
private. Hence it is difficult to see how the Plebeians could have been
prevented from taking the _auspicia privata_, although their use of them
was probably scoffed at by their patrician rulers. On the one hand, we
find that the incapacity of the Plebeians to share in the auspices was
one of the arguments used against the permission of _conubium_ between
the orders;[137] on the other, that the _auspex_ continues to be an
integral part of a ceremony which was founded on plebeian marriage law.
It was different with the auspices taken on behalf of the state
(_auspicia publica_). It is the Patricians alone who have these auspices,
and only a magistrate belonging to the order can exercise the right
of looking for them (_spectio_).[138] This remains not only a purely
magisterial, but a purely patrician privilege, and the so-called
plebeian magistrates of later times, great as their power was, had not
the gift. It is quite true that, after the Plebs had forced its way into
the consulship, this right could not be denied to the plebeian holders of
the supreme office. But the admission was based on the legal fiction that
the holder of an office once reserved to the _patres_ was, for religious
purposes, a patrician magistrate.[139]
The enjoyment of full political rights in ancient Rome was conditioned
only by membership of a patrician _gens_; full citizenship here, as in
most ancient states, being dependent on birth, and the membership of a
purely private association satisfying all the demands that the state made
as a condition of the attainment of its rights. But there were other
forms of association of a definitely political character, amongst which
the citizens were distributed, and as members of which they exercised
active political rights or were subject to personal burdens. These were
the three patrician tribes of Ramnes, Tities, and Luceres, and the thirty
_curiae_. With reference to the question whether these were primary and
natural associations of an ethnic character or artificial creations
made by a supreme authority after the founding of Rome, we have already
seen[140] that the _tribus_ are probably an ethnic survival artificially
employed; in the case of the _curiae_, it must remain far less certain
whether they were of spontaneous growth or purely artificial creations,
or (what is perhaps more probable) in the main natural associations,
artificially regulated in number and grouping to suit a political purpose.
The tribe, which was a division not merely of the citizen body but of
the land, was the basis for taxation and the military levy.[141] We
know nothing of the first burden, but it is probable that no detailed
scheme of direct taxation existed in the early Roman state. The revenues
from the king’s domains probably rendered him self-sufficing, while
the patrician burgesses served in the army at their own cost, and were
doubtless expected to defray the expenses of their retainers. It is
probable that in cases of emergency a tax in kind was levied from the
landholders of the tribes.
Of the military burdens tradition has preserved some plausible details.
The army was known as the _legio_ or “gathering,”[142] and was composed
of three “thousands” (_milites_),[143] one from each of the three tribes.
These foot-soldiers were commanded by three or nine tribal officers, the
_tribuni militum_.[144] The cavalry consisted of three hundred _celeres_,
one from each of the three tribes, each commanded by three _tribuni
celerum_. When the Patriciate was enlarged by the addition of the _gentes
minores_,[145] these three hundreds (_centuriae_) were increased to
six.[146]
Besides the heavy infantry and the cavalry, there may have been a corps
of light-armed troops (_velites_ and _arquites_), and these would
doubtless have been composed mainly of clients. We do not know whether
the free Plebeians were forced to serve; but, if they did, it would only
have been in this inferior capacity, which required no time for training
and no cost of maintaining a panoply. It is evident that the whole burden
of the regular levy, and of such war-taxation as then existed, fell upon
the Patricians, and before the close of the monarchy an effort was made
to remedy this unequal distribution of burdens—an effort which had as its
result the abolition of the patrician tribes as the leading divisions of
the state and a serious infringement of patrician rights.
The thirty _curiae_, originally local units, as is proved by their
names,[147] were divided, ten into each of the three tribes. The members
of the clans belonging to the same _curia_ were called _curiales_. But,
although the _curiae_ had local centres, membership of these bodies did
not depend on residence in a given locality. It was hereditary; and if
the members of a _gens_ migrated from its _curia_, the _gentiles_ were
still members of that state-division. The _curiae_ were religious as
well as political associations, which had from the first, or finally
developed, a close corporate life. Each had its peculiar _sacra_[148] and
a place of worship, containing an altar and chapel, which itself bore
the name _curia_;[149] and the religious affairs of each were conducted
by a priest called _curio_, assisted by a _flamen curialis_.[150] The
thirty _curiones_ formed a college, of which the _curio maximus_ was the
president.[151]
It is difficult to say how far the religious organisation of the _curiae_
was a natural or artificial development. But artifice was certainly at
work in determining their important political character. The primitive
popular assembly at Rome is the _comitia curiata_, composed wholly
of Patricians. Here each member of a patrician clan above the legal
age—probably the age of eighteen, at which military service commenced—had
the right of giving a single vote; a majority of the _curiales_ decided
the vote of the particular _curia_, and the decision of the assembly was
determined by the majority of the groups.
They also had, in a secondary degree, an importance of a military kind;
for the supply of knights to the corps of _celeres_ is said to have been
effected through the _curiae_.[152]
§ 5. _The Monarchical Constitution_
It is generally agreed that the monarchical constitution of early Rome
rested on a limited sovereignty of the people, a power restricted by
the extraordinary authority of their sole magistrate. This popular
sovereignty was asserted in jurisdiction, in legislation, and in the
ratification of magisterial power. The attribution of the right of appeal
in criminal cases (_provocatio_)[153] to the people shows that with them
rests either the sovereign attribute of pardon or some right of trying
criminal cases in the last resort. Tradition makes the Roman people the
sole source of law,[154] that is, of standing ordinances of a general
kind which are to bind the community,[155] although the initiative in
legislation can come only from the king; and apart from the rulings of
the pontifical college, which did not require the sanction of the people,
this theory of primitive legislation seems to be correct; for the very
early laws passed by the _comitia_ on the downfall of the monarchy do
not appear to mark any violent break in the theory of the constitution.
We do not know whether the king employed the formula afterwards used
by the Republican magistrates, which elicited the “will and command”
of the burgesses (_velitis_, _jubeatis_, _quirites_); but law (_lex_)
is from the first something “laid down” by a competent authority, and
binding, therefore, in virtue of the power that ordains it.[156] After
its ordinance it may or must create a contractual relation between
individuals,[157] but there is no hint of its being the result of a
contract or co-operation between independent authorities. The source of
law is, therefore, simple; it is the people’s will; but, through the bar
to utterance created by the magistracy, this will is very limited in its
capacity for expression. The people are also affirmed to have been in a
certain sense the source of honour, and typical illustrations of this
power are presented by the traditional beliefs that the regal _insignia_
of Etruria, adopted by the kings of Rome, were only assumed by them
with the consent of Senate and people,[158] and that the appointment of
officers for special purposes, although these may have been in theory
merely delegates of the king, had to be ratified by laws of the _curiae_.
The quaestors, the earliest prototypes of the later magistrates at Rome,
are said to have been so appointed.[159]
The people, therefore, possessed certain sovereign rights, but each right
was limited by the vast authority of their personal representative, who
wielded the whole of the executive, and so much of the legislative power
as is implied in the sole right of initiative. We cannot even speak of
the people as _vesting_ this power in their king; for their right of
election was, as we shall see, probably as limited as their power of
legislation.
This personal head possessed a variety of titles which marked the various
aspects of his rule—titles which survived into the Republic, and, on the
differentiation of the functions which he united, were applied to various
magistrates. As supreme judge he was _judex_, as leader and commander
in war _praetor_,[160] _dictator_, and _magister populi_.[161] The most
general title which marked him out as universal head of the state, in
religious as in civil matters, was that of _rex_, the “regulator” of all
things human and divine—a title which survived in the _rex sacrorum_, the
heir of the king in sacrifice and in ritual. The powers on which this
position was based were summed up in the word _imperium_.[162]
The severance of the king from the state, over which he ruled, was also
expressed in certain outward signs (_insignia_), which distinguished him
from the rest of the burgesses. He was preceded by twelve “summoners”
(_lictores_),[163] each carrying a bundle of rods (_fasces_), and the
axe-head gleamed from these bundles even within the walls, for the
king’s military jurisdiction could be exercised within the city. His
robe was of “purple,” or rather of scarlet—the colour in which most
nations have seen an emblem of sovereignty—but his dress probably varied
with the ritual which he was performing, and the three kinds of striped
garment (_trabea_) which survived in the Republic—that of purple for the
priestly office, of purple and saffron for augury, of purple striped
with white for the _rex_[164]—were probably all vestments of the king.
Tradition also assigns him the eagle-headed sceptre, the golden crown,
the throne (_solium_),[165] and the chariot within the walls, from which
the curule chair (_sella curulis_) was believed to be derived.[166] The
statement that the triumphal _insignia_ of the Roman magistrate were
but the revival of the ordinary adornments of the king[167] is extremely
probable; for the crown, the _toga picta_ (a development of the purple
robe),[168] and the chariot reappear in the Roman triumph.
Other royal prerogatives were connected with the primitive conception of
a patriarchal monarchy. The king, although he lacks the absolutism of
the _paterfamilias_, occupies much the same position in the state as the
father does in the family. In a sense he is owner of the whole community,
and as such capable of commanding the _munera_ of the burgesses.[169]
But a large portion of the public domain was more peculiarly set apart
for his own private use.[170] This crown-land must have been worked
mainly by the king’s own clients, who held it _precario_ from him;[171]
for there seems no reason to doubt the belief that a large proportion of
the half-free Plebeians were in the immediate _clientela_ of the king,
connected with the community chiefly through him, its representative.
These may have been captives who had submitted to the _fides_ of the
state, and whom their conqueror had not attached as dependants to other
leading families of the community.
The theory of a kingship is best expressed in the mode in which the
monarch ascends the throne. The alternative principles that have usually
been recognised are the hereditary, the elective, or that of divine right.
Of the hereditary principle there is no trace at Rome. It is contradicted
by the facts of the traditional history, which believed that, when the
hereditary principle was first realised in the last king, the monarchy
came to an end; and it is expressly denied by later authors who reflected
on the character of the early monarchy.[172] There is rather more to
be said for the theory of divine right. Romulus is the son of a god
and awaits the verdict of heaven before he assumes his rule. Numa, his
successor, insists that the same verdict shall be appealed to.[173] But,
if the taking of the auspices be the sign of a divine origin, then
everything in Rome proceeds almost equally from the gods. Probably in
earlier as in later Rome religion played a most important subsidiary part
in public life, but we have no warrant for believing that it was ever the
sole guiding power. As we shall see, in discussing the question of the
inauguration of the king, this theory raises into a primary and material
what was merely a secondary and formal element in the transmission of the
monarchy, although this formal element was one of the utmost necessity
and importance.
The Roman thinkers were thus thrown back on the theory of
election. Tradition is unanimous in representing the monarchy as
elective—depending, i.e., on free popular election, or on such election
guided by the Senate.[174] On the death of a king there is no immediate
successor with a title to rule; an interim-king (_interrex_) is appointed
for a few days, and on his proposal a king is elected by the patrician
burgesses at the _comitia curiata_, subject to the sanction of the
patrician Senate (_auctoritas patrum_).[175]
In the expression of these views the Roman thinkers were attempting to
reconstruct the monarchy from a knowledge of their own magistracy; for
they rightly believed that this magistracy was a very slight modification
of the original kingship. The elective principle of the Republic was not
regarded as a novelty in the theory of the magistracy, and there were two
reasons for this view. The first was that there was a real continuity,
for the elective process was always subsidiary to another, that of
nomination by the magistrate who guided the elections. The latter became
an almost formal process in the Republic, but the question was not asked
whether at one time it may not have been the material element. Secondly,
there was really an elective element in the monarchy, which survived as
a form into the Republic, a form which the hypothesis of monarchical
election adopted by Roman antiquarians could not explain. It is strange
that, in seeking for their theory of regal appointment, they should not
have appealed to the clearest survival of the monarchy, the dictatorship,
on which so much of the rest of their reconstruction of the monarchical
power was based.
In the two definite survivals of the Roman monarchy election was not
recognised; the dictator was nominated by the consul, not by his
predecessor, for it was only an occasional office; and the _rex sacrorum_
was nominated by the _pontifex maximus_,[176] no longer by the preceding
_rex_; for this office simply continued the priestly functions of the
king, the religious headship being vested in the _pontifex_. This oldest
principle of appointment survived in Republican Rome as an integral part
of the elective process, to reappear again in the Principate, in cases
where election had become a mere form, as the living principle.[177] It
is, in fact, the one principle that has a continuous history; election is
the Republican interlude.
If, therefore, we are led to consider the monarchy as not purely an
elective office, and substitute for election the principle of nomination,
we must consider that it was the right, and probably the duty, of
the king of Rome to nominate his successor. If there had been no due
nomination during his lifetime, and consequently no distinctly marked
out successor to the monarchy, the duty of providing such a successor
lapsed to the Senate, from which body the _interrex_ was appointed.
The _interregnum_ is said by tradition to have dated from the first
vacancy in the regal office, after the death of Romulus.[178] When such
a vacancy had occurred, the auspices, under which the state had been
founded, and which were the mark of divine acceptance of the kingly
rule, “returned to the _patres_,”[179] and we are told that this was
from the first interpreted to mean, not to the _comitia curiata_, but
to the patrician Senate. The earliest _interregnum_ is represented as
an exercise of collective rule by the Senate; but, on the analogy of
the sole magistracy, it took the form of a creation of a succession
of _interreges_. The first step was the division of the Senate into
_decuriae_;[180] each decury had fifty days of government allotted to
it; within this period each individual member of the _decuria_ exercised
rule for five days, and, according to one account, the succession of the
decuries was determined by lot (_sortitio_).[181] The rule is represented
as collegiate, the whole decury possessing the _imperium_, while the
individual who ruled for five days had the _fasces_ and the external
emblems of the royal power.[182] In later times we shall see that, though
the _interregnum_ was retained, the whole procedure was simplified by
the abandonment of the collegiate principle. If it ever existed, we must
suppose that, as soon as ever the resolution of the Senate was taken, the
collective rule could be interrupted by any _interrex_, except the first,
nominating the king.[183] The _interregnum_, although represented by our
authorities as an invariable part of the procedure in the appointment of
a king, was probably from the first a makeshift, only resorted to when
the ordinary procedure had been interrupted through unforeseen causes,
and there was no definitely designated successor.[184]
Yet, though the monarchy was not strictly elective, certain
quasi-elective processes were connected by tradition with the appointment
of the king, on the part both of Senate and people.
The authority of the Senate (_auctoritas patrum_) is mentioned in
connexion with all the transmissions of the supreme office.[185] It is an
authority, however, which did not spring from any theory of the Senate’s
possessing elective powers, but was simply a result of the universal
principle that no man in authority should act without taking advice
of his _consilium_, and was merely an outcome of the constitutional
necessity which the king was under of consulting the Senate on all great
measures affecting the popular welfare. The greatest of these would be
the appointment of a successor.
Secondly, we are told of a formal ratification of the king’s power by the
people assembled in the _comitia curiata_, one which continued into the
Republic under the title of the _lex curiata_, a formal sanction always
required for the ratification of an _imperium_ already assumed.[186] It
is said to have had this character even in the time of the monarchy, and
this was thought to be shown by the fact that the king himself proposed
the _lex curiata_ which was to give the sanction for the exercise of
his own power.[187] Such procedure was, indeed, necessary, since no
one but the king had the right of putting the question to the people;
consequently we must accept the view that the _lex curiata_ was not
absolutely necessary for the exercise of power, and might be legally,
though not perhaps constitutionally, withheld, as it was by King Servius
during the early part of his reign.[188]
The Roman jurists, who believed that the king was elected, credited
the people with two distinct acts in the creation of a king—first, his
election, and then the formal ratification of this election.[189] A
parallel for this seemed to be furnished by Republican usage, where the
_lex_ was taken by magistrates already elected as a necessary preliminary
to the exercise of the _imperium_. But at this period the magistrates
were not elected by the _comitia curiata_, and the _lex_ of this assembly
is a mere survival, a reminiscence of the formal sovereignty which
continued to be vested in the _curiae_. The _lex curiata_ is much more
comprehensible in origin if the king was first nominated independently of
the people and then challenged their allegiance. It was probably little
more than an acclamation on the first summons of the _curiae_ by the
king. The preceding king must have already made known to the people his
choice of a successor, and the popular sentiment would have been already
expressed; thus there was little chance of adverse shouts when the new
king challenged the allegiance of his burgesses. If there was a chance
of the challenge not being accepted, it might, as we saw, be withheld.
But an exercise of the regal _imperium_ which was not sanctioned by these
two acts of Senate and people—the expressed will of the one and the
declared allegiance of the other—was regarded by later authorities as
unconstitutional.[190]
There was also a religious aspect of the king’s appointment. His
assumption of power was regarded as incomplete until it had been shown
that the gods sanctioned the rule which he had assumed. This was done by
the first taking of the auspices[191]—a ceremony observed by magistrates
of the Republic before entering on the exercise of their office. This was
the final test for the right to exercise secular power; but the king’s
position as high-priest of the community was supposed to require another
initiatory act.
This was the inauguration, which differed from the taking of the
auspices. In the ordinary form of the _auspicia_ the individual entering
on office has himself the right of _spectio_;[192] in the Republic it
belonged to magistrates as such, and was never regarded as a merely
priestly function. In the special inauguration, on the contrary, the
_spectio_ is taken by some other than the person inaugurated. The
priest-king Numa is naturally associated with this ceremony by tradition;
by him an appointed augur is employed to watch for signs,[193] and this
ceremony of inauguration by one of the priesthood, other than the person
so inaugurated, is represented as being from this time onwards a standing
part of the procedure requisite for entrance on the regal office. But
this legend of Numa is rendered somewhat incredible by the fact that the
augurs have no right of _spectio_, and that of all the priests of the
Republic it is only the semi-magisterial _pontifex maximus_, the head of
the state religion, who has the right of taking auspices. The fact that
the _rex sacrorum_ in the Republic had a special inauguration[194] might
lend support to the legend, were it not that this _rex_ had become wholly
a priest and thus lost his right of intercourse with the gods through
the _spectio_. The question of the inauguration of the king, unimportant
in itself, runs up into two wider questions; the first is whether there
was a separation in idea between the king’s magisterial and his priestly
functions; the second, whether the king was himself _pontifex maximus_
and thus the supreme head of the Roman religion.
For an answer to the first question it is not safe to appeal to later
examples, for the priesthood and the magistracy may have been first
sundered during the Republic. But tradition[195] and survivals represent
the king as the _first priest_ in the community. His successor, the
_rex sacrorum_, ranks, as a priest, above the three great _flamines_
and the _pontifex maximus_ in the order of the priesthood (_ordo
sacerdotum_);[196] the religious duties of this _rex_ point to the fact
that the king’s functions were a regular _cultus_, not the occasional
religious duties of a Roman magistrate,[197] while his wife, the _regina
sacrorum_, had her own simultaneous sacrifices.[198]
But the position of first priest did not in the Republic imply the
headship of the Roman religion; the chief pontiff, who is its head,
comes, as we saw, low in the order of the priesthood. The importance of
_cultus_ and of religious authority springing from higher knowledge are
not the same. The pontiffs are only secondarily a priestly, primarily
they are a religious order, whose position is based on the knowledge
of religious law (_fas_). The separation between the true priesthood
and the presidency of religion may, indeed, have been a Republican
development, due to the secularisation of the magistracy; the priestly
functions of the magistrate being continued in the _rex sacrorum_, and
the religious presidency being also separated from the civil power,
but vested in another official, the chief pontiff. But it is possible
that the separation may have been primitive, and that _cultus_ and the
knowledge of religious law did not go together. It is evident that
great uncertainty prevailed as to the king’s relation to the pontifical
college. While one account speaks of Numa selecting Numa Marcius as
“_the_ pontiff,”[199] another describes the same king as instituting five
pontiffs,[200] and we are further told that, before the _lex Ogulnia_
(300 B.C.), the college consisted of four members.[201] The discrepancy
between the two last accounts has been reconciled by supposing that
the king himself was reckoned as a member of the college, and that the
expulsion of the king reduced the number from five to four.[202] It is
possible that the king did not bear the title _pontifex maximus_ and was
yet head of the college; it is even possible that, as one account which
we have quoted seems to indicate,[203] there was a chief pontiff as his
delegate. We can hardly refuse him a place at this board in face of the
evidences which point to his universal headship of religion. The creation
of the augurate and the priesthoods is his work. Romulus appoints the
augurs;[204] Numa institutes the three great Flamines, the Salii, and
the Pontifex, although most of the important ceremonies of religion are
performed by himself personally.[205] Consequently we may conclude that
the appointment of special individuals to these priesthoods must have
been a part of the king’s office.[206] It has even been held (chiefly
as an inference from the fact that the Vestals and Flamens were in the
_potestas_ of the _pontifex maximus_ of the Republic) that the former
were the king’s unmarried daughters who attended to the sacred fire of
the state in the king’s house, the latter his sons whose duty it was
to kindle the fire for the sacrificial worship of particular deities,
Jupiter, Mars, and Quirinus. This pleasing picture may have represented
the primitive state of the patriarchal kingship; but this had been
long outgrown before the close of the monarchy. There we find a fully
developed hierarchy and the existence of religious guilds, such as those
of pontiffs and augurs, who cultivate the science, not the mere ritual of
religion, and who have no possible connexion with the king’s household
arrangements.
At the head of this imposing organisation stands the _rex_, and, in
virtue of this position, he is the chief expounder of the rules of divine
law (_fas_). It is a law which has hardly any limits, running parallel
with civil justice (_jus_) but far beyond its bounds. Three methods of
its operation may conveniently be distinguished. One is purely religious
and ritualistic and is expressed in the control of priesthoods, religious
colleges, and cults. The second asserts itself in a control over the life
of the ordinary citizen in matters criminal and civil. The third is that
which connects the Roman state with other independent communities and
forms the international law of the period.
(i.) The control over priesthood and _cultus_ belongs to the history
of religion rather than to that of constitutional law, and it chiefly
presents a legal aspect in connexion with the question of religious
jurisdiction. The difficult questions that arose in Republican times
from the clashing of the religious and the civil power could hardly have
been heard of as yet, for the supreme control of both was vested in the
same man. But the very nature of this disciplinary jurisdiction over
priests has been a matter of some dispute. The favourite hypothesis of
a family jurisdiction has been applied to the case, and the hypothesis
may conceivably be correct so far as the Flamens and the Vestals are
concerned, although even in this sphere it is doubtful by what paternal
right the head of religion could do the Vestal’s paramour to death. Other
phases of the power are still more inexplicable on this ground. A right
of punishing augurs for a breach of ritualistic rules survived into the
Republic, and seems to be a jurisdiction exercised over them as members
of a religious body. There is, however, no trace of the priesthood
holding a privileged position, and in all secular matters its members
are subject to the ordinary law. Such privileges as they possess rest on
religious scruples. When the Flamen was caught (_captus_) for the god, he
became free from the paternal power,[207] and the civil authority could
not compel him to take an oath.[208] The persons of the Vestals were
inviolable;[209] the sanctity of both Flamens and Vestals also invested
them with the right of _asylum_. The bonds were struck off the prisoner
who took refuge in the Flamen’s house; and, if the criminal on the way to
punishment met him or the Vestal, he could not be scourged or executed
on that day. But it is only in these two cases that the severance from
the world is strongly marked; we have no reason for believing that, in
the earliest period of Rome’s history, the members of the religious
orders were isolated from the mass of the people with privileges and a
jurisdiction all their own.
The control of the _cultus_, and the maintenance of its purity, are
marked as one of the earliest duties of the _pontifex maximus_, and must
have belonged to the king. It is he that sees that no ancestral right is
neglected, no foreign one acquired.[210] Here we have a religious power
that governs more than the priesthood; the maintenance of the _sacra
privata_ are as important in its eyes as that of the _sacra publica_, and
its supervision must have extended beyond the limits of the Patriciate;
for it is impossible to believe that religion cared only for the _sacra_
of the patrician clans, and aimed only at preventing them from corrupting
their ancestral worship. The Plebeian and the client were under the
protection of the gods, and might bring down a curse on the community by
reckless innovation or neglect.
(ii.) The control exercised by _fas_ over the citizens’ life in
matters not immediately connected with ritual and worship may be first
illustrated by its penal sanctions. We cannot, indeed, say that there was
a time when the Roman law regarded every crime as a sin, for from the
very first we are confronted with a dualism, and religious and secular
sanctions exist side by side. But religion has left a deeper impress
here than elsewhere—in the name given to punishment,[211] in the form of
its infliction, in the still stranger fact that, by the disappearance of
religious sanctions, breaches of obligation that the modern world regards
as crimes remained unpunished by the secular arm.
The punishment for sin must be some form of expiation. This is the
_piaculum_ adjudged in the monarchy as in Republican times by the head
of religion; and not adjudged arbitrarily, for even by the close of
the monarchical period classes of offences had doubtless been drawn up
by the pontiffs with the equivalent expiation, which was directed to
avert the anger of the gods from the whole community. Apart from the
regularly recurring lustrations at the census—the consequence of the
sense of universal sinfulness in the community—individual misdeeds could
be expiated in this way. Such was a murder that was unintentional or
in which mitigating circumstances were present,[212] and such was the
violation of the chastity of Juno’s person through the touching of
her altar by a _paelex_.[213] In graver cases expiation could only be
accepted where there was no intent,[214] as in the wrong done to a god
by swearing falsely in his name.[215] There was also a class of deadly
sins for which the gods would accept no atonement but the life and the
goods of the sinner himself. Amongst the acts which called forth this
_consecratio capitis_ were the violation of the relations of client and
patron,[216] the ill-treatment of elders by their children,[217] the
pulling up or alteration of boundary stones,[218] the destruction of a
neighbour’s corn by night.[219] The god thus appeased was often the deity
who was held to be specially offended by the act; but sometimes the head
and the goods were not dedicated to the same divinities. The person was
adjudged to Jupiter, the dispenser of life; the landed property to the
gods who nourish the human race, Ceres and Liber.[220] This custom of
consecration gradually ceased to have its literal fulfilment. A man might
still be declared _sacer_, but excommunication had taken the place of
immolation. Such a man was cut off from all divine and, therefore, from
all human help, and his slayer was blood-guiltless.[221] This theory, of
a man being cut off from the community while his life was spared, became
of great importance in the history of Roman criminal law. It survived in
the “interdiction of fire and water” (_aquae et ignis interdictio_), and
familiarised the Romans with the idea that the severest penalty did not
require the sacrifice of life.
In matters of private law we have already witnessed the presence of
religion in marriage, adoption, testament, and the transmission of the
_sacra_. Its authority may be further illustrated by the formularies
of civil procedure. Here the form of words was all-important, and in
the early Republic all binding _formulae_, whether for oaths that were
to be effectual, for vows or for consecration, were known only to the
pontiffs. The solemn forms of law (_legis actiones_) issued from the
same authority, and in one of their most frequent manifestations, the
_sacramentum_, the procedure was distinctly religious.[222] But who could
say whether the king, when he gave the prescribed form of words for an
action, acted as a religious or a civil head, as the representative of
_fas_ or _jus_? Here we are on the borderland between the two.
(iii.) Nations know no common _jus_, and _fas_ is the sole support of
international law. Each people is protected by its own divine guardians;
hence a war of two nations is a contest between their gods, and a treaty
between two peoples a compact between their respective divinities. But
each nation is to some extent under the protection of the other’s gods.
Jupiter of Rome is powerless if the war commenced by Rome is unjust, and
will punish his own people if they have stained his honour by violating a
treaty. Even though there is no belief in community of guardianship, the
rights of other peoples are still conceived to be under the protection of
the Roman gods.
These beliefs necessitated elaborate religious preliminaries to the
declaration of a war in order that it might be just and holy (_justum
piumque_),[223] as well as ceremonies for the conclusion of a peace that
was to bind the public conscience (_fides publica_).[224] Such a ritual
may have been performed, originally, by the king himself; but tradition
states that, at a very early period, a special guild of priests, the
Fetiales or public orators, were appointed for this purpose.[225] Their
chief functions were the declaration of war and the conclusion of peace,
but the ritual observed in both of these acts may be more appropriately
described when we are dealing with the international relations of Rome.
There were other religious preliminaries to a war which, though not
necessitated by divine law, it was highly expedient to observe, in order
to increase the chances of victory. Vows (_vota_) were offered to the
native gods, and for these to be valid they must be couched in a form
prescribed by the pontifical college.[226] And sometimes the king, before
a battle or a siege, chants an incantation (_carmen_), the purport of
which is to weaken the loyalty of the enemies’ gods to their worshippers,
and to bring them over to the side of Rome. He bribes them with temples,
offerings, and the honours of a special cult.[227] If the bribery is
effective and the city falls, he must carry out his pledge. The conquered
gods are received at Rome; and their worship is guaranteed by the
distribution of their cults over the patrician clans.[228] The instances
preserved of this _devotio_ and _evocatio_ naturally date from the time
of the Republic.[229] During this period the forms are prescribed by the
pontiffs. But the antiquity of the procedure is beyond question. The
results of evocation on the part of the king, who was his own pontiff,
are manifested in the local worships of the conquered towns of Latium,
which found an early home at Rome.
If we turn from the religious to the civil powers of the king, it is
easier to estimate their extent than to determine the precise modes
of their exercise. Later belief credited him with the sole executive
power of the state. The Roman kings possessed πᾶσα ἀρχή, and exercised
the _imperium_ at their own discretion.[230] Such statements are not
surprising if we remember what is implied in the _imperium_, and that
there appear to have been no legal limitations to its exercise during
the monarchy. _Imperium_ implied the combination of the highest military
and civil authority; it united jurisdiction with command in war, and
it included the further right of intercourse with the people (_jus
rogandi_); while the later restrictions on this power, the limitation of
office by time or by colleagueship, had not yet been created. The king
held office for life, and he had no colleague; for the other officials in
the state must have been mere delegates whom, in the strict theory of the
constitution, he permitted to exist.
But if the king’s power was legally free from restraint, and we do not
believe that there was any large body of _leges_ binding his authority,
it could not have been free from the limitations imposed by custom and
constitutional usage. Customary law securing rights for the people
is said to have been raised to the level of positive law by Servius
Tullius.[231] But even the earlier usages must have formed a kind of
code—such a code as that which contained the pontifical ordinances
known as the _leges regiae_.[232] It was the belief in the existence
of this early customary law which led to the later description of the
king’s power as an _imperium legitimum_.[233] Amongst his constitutional
obligations was that of consulting the Senate in any important matter.
There can be little doubt that the original council of elders (_senatus_)
was a body of nominees selected by the king as his permanent advising
body (_consilium publicum_).[234] In consequence the position of senator
could not have been a life-office; there could neither have been any
definite mode of attaining the dignity, nor any claim on the part of
an individual to retain it. A new king might decline to summon some
of his predecessor’s councillors; he might even, perhaps, change the
_personnel_ of his advisers during the course of his reign. It was in
later times believed that the freedom of selection was so great that no
stigma attached to members who were “passed over” (_praeteriti_) by the
king.[235]
Yet tradition attributes a definiteness to the Senate which is not
consistent with the idea of a purely arbitrary selection. Its numbers at
any given time are fixed, and it is to some extent made representative
of the whole patrician community—for an increase in the number of full
burgesses involved a corresponding increase in the numbers of this
body.[236] The number, originally 100,[237] was raised by successive
steps to 300 before the close of the monarchy.[238] The two obvious units
of representation were the _curiae_ and the clans; but the latter, from
their larger numbers, formed a better basis for reflecting the opinion of
the whole community, and tradition does seem to have imposed a kind of
constitutional necessity on the king of distributing his councillors as
evenly as possible amongst the patrician _gentes_.[239] It was thus that
the distinction between the older and the newer clans was perpetuated
in the procedure of the Senate;[240] but the clan-influence left its
strongest mark by giving a name to the members of the body itself. It was
the leading heads of families (_patres familias seniores_) that the king
summoned; and, in asking their advice, he addressed them as “heads of
houses” (_patres_).
The primitive Senate is credited with two standing powers—the _patrum
auctoritas_ and the initiation of an _interregnum_. Neither of these
prerogatives was directly contemplated by the constitution, and the
Senate never becomes a corporation possessing powers in its own right
until the time of the Empire. Tradition mentions the “authority of the
fathers” as being necessary for the appointment of a new king; it leaves
it to be inferred that it was required for the validity of laws as well,
an inference probably not true of the period of the monarchy. As we
have already explained, it was a legal right only in so far as it was
an extreme instance of the necessity the magistrate was under of taking
advice. Perhaps towards the close of the monarchy, with reference to
the choice of a successor to the throne, custom had made it a standing
prerogative. The _interregnum_ rests on a somewhat different basis; it
was a power which religion enjoined should be in the hands of the whole
patrician community—usage had delegated the power to the patrician
Senate; so here again we have a prerogative which rested wholly on custom.
A privilege only less constant than these was probably the control of
foreign policy. The formula of the Fetiales, which is said to have dated
from their institution during the monarchy, contains the clause: “But
on these matters we will consult the elders at home, how we may obtain
our rights.”[241] It was thus the duty of the king to consult the Senate
in all matters affecting the international relations of the state. For
a declaration of war, perhaps, even this was not sufficient. Tradition
believed that, in this matter, reference must be made to the people
assembled in the _comitia curiata_.[242]
On the other hand, the right of making treaties (_foedera_) with states
could not have been limited in this way. For the treaty made in time of
peace the Senate, and perhaps the people, were consulted; but this could
hardly have been the case with the treaty which closed a war and which
was made on the field of battle. In the Republic there survives a shadowy
and disputed right of the _imperator_ in the field to make a treaty which
shall bind the people. The right was denied, but only on the ground that
the general could not take an oath binding on the public conscience. But
the king was at once general and high-priest; he could doubtless take
this oath even without the assistance of his servants, the Fetiales.
There were other manifestations of the king’s power as general over which
the people would have no control. The disposal of the booty taken in
war and of the conquered lands was one of these,[243] and the statements
which record this right find support in Republican survivals. The control
of the spoils of war (at least of the movable portions) belongs to the
Republican general, subject to the advice of his council of war and
sometimes to subsequent ratification by the Senate. The first condition
may have been necessary in the time of the monarchy, but hardly the
second.
The council of war was a type of the smaller special _consilia_, which
the king doubtless employed to advise him in different branches of the
administration; and such special councils must have been chosen from
the great _consilium publicum_, the Senate. One of the most important
of these was that which furnished his assessors in jurisdiction. That
it became the custom, in the more important cases judged by the king in
person, to employ a _consilium_ of some sort, is stated in the charge
brought by tradition against Tarquinius Superbus that he neglected
this essential guarantee of even justice.[244] In the secular criminal
jurisdiction of the king such a council would doubtless have been taken
from the Senate. In the religious jurisdiction, which we have considered,
the pontiffs would have been the advising board.
Senators also must have been chiefly chosen as delegates of the king,
except, perhaps, those appointed for subordinate command in war;[245]
there military fitness would be chiefly looked to.
The chief of these delegates was the prefect of the city (_praefectus
urbi_), an _alter ego_ left behind in the capital by the king when he
himself was absent in the field.[246] To him must have been delegated
the whole of the executive power, and with it the right and duty of
consulting the Senate. It is not probable that the right of questioning
the people was or could be delegated.[247] In criminal jurisdiction a
distinction was believed to have been made in the cases brought before
the king; the more important were tried by himself in person, the less
important transmitted to judges chosen from the Senate.[248] This may be
the germ of a distinction which is said to have been perfected by Servius
Tullius. Crimes affecting the public welfare he tried himself; wrongs
done to private individuals he entrusted to others.[249]
This principle of delegation is mentioned only in connexion with criminal
jurisdiction. But, whatever its extent, it necessitated the grant by
the magistrate to his delegate of a _formula_ or _lex_, which was the
expression of _jus_. This _jus_, “that which is right or fitting,”
expressed the order of society, as realised through human agency, not
directly through the divine will.[250] It is possible that even in early
Rome it was treated as a right, a faculty of action (_facultas agendi_)
or liberty enjoyed by one man against another, by individuals against
corporations or by corporations against individuals. The differentiation
between the rights of the state and the rights of the individual, always
marked in procedure long before it is formulated in theory, finds
expression in the change which tradition attributes to Servius.[251] But
there was never any clear line of demarcation between the two spheres.
Much of what we call criminal law was at Rome a matter for civil actions
dependent on private initiative, and such actions could in early times
be brought only by the head of the family. But in so far as the early
Romans had a criminal law, in so far, that is, as an offence against the
individual could be regarded as a wrong done to society, this law was a
part of the _jus publicum_.
The king was the sole exponent of this sense of violated right, and
the sole interpreter of the _jus_ fixed by custom or by law. Over the
penalty he probably had little control. It was enjoined in his ruling
and carried out by his lictors; but, in its various forms—death by
the _arbor infelix_ or from the Tarpeian rock—it was fixed by the _mos
majorum_. The trial was a personal investigation (_quaestio_) undertaken
by the king, with the assistance of a chosen body of advisers; and he
might give judgment himself. But sometimes his judgment was conditioned.
He specified the crime under which the accused was to be tried, and
the penalty to be inflicted, but left the finding on the facts to his
delegates.[252] Two such classes of delegates are attributed to the regal
period, the _duumviri perduellionis_ and the _quaestores parricidii_.[253]
There may have been an appeal from the delegates to the king, but
tradition does not credit the king with any power of pardon. Whether
the power of pardon resided anywhere depends on our interpretation of
the trial of Horatius,[254] which was believed to furnish the archetype
of the _provocatio_. From this story appears the belief, which is often
stated by other authorities,[255] that the appeal to the people existed
in the regal period, but one modified by the view that the citizens
had no standing right of appeal against the king such as that secured
against the Republican magistrate by the _lex Valeria_. The king, Tullus
Hostilius, _allows_ the appeal.[256] The early dictatorship was similarly
exempt from the necessity of permitting it, and on one occasion the
precedent of Horatius was appealed to for the purpose of showing that,
as the king had allowed, so the dictator should allow, the appeal.[257]
But the dictatorship is a revival of the _military_ side of the monarchy
with the military jurisdiction which the king exercises over Horatius.
It is quite possible that before the close of the monarchy custom had
established different spheres of criminal jurisdiction for the people and
the king respectively;[258] in some the people might have had a right
to be judges in the last resort, and it is the idea of calling away a
case to another court that is suggested by the word _provocatio_, not
the modern idea of pardon.[259] In other spheres the king could judge
alone; the _provocatio_ here is an act of grace. If, however, we consider
the extent of the military and religious jurisdiction of the king, the
competence of the people must have been small;[260] and the _provocatio_
itself may be a growth of the later monarchical period, the result of
custom, and of a custom based chiefly on the permit of the king.
Civil jurisdiction is said to have been based on the king’s
judgment.[261] How far this royal jurisdiction was personal we cannot
say, but under all circumstances the king was the chief source of
the _jus privatum_, in so far as he and his pontiffs alone knew the
formularies of action,[262] the most precise verbal accuracy in which
was necessary for the successful conduct of a suit. It is probable that
in many cases the king gave merely the formulary of action, that is,
the ruling in law, and then sent the case before a private judge or
arbitrator (_judex privatus, arbiter_), thus illustrating (although not,
perhaps, on the scale recognised during the Republic) the fundamental
division of judicial procedure into _jus_ and _judicium_. This division
of jurisdiction is probably primitive and not, as has sometimes been
thought, a modification introduced by the later monarchy.[263] Even in
Republican times the _judex_ was chosen by consent of the parties.[264]
He was an arbitrator between the litigants agreed to by a mutual
compact,[265] and an outcome of the notion of self-help so prominent in
early Greek and Roman law. But one who knows the forms of action has to
stand by and see that the words of these forms are correctly repeated.
This depositary of _jus_ is the king or one of his pontiffs. Hence
eventually the public official comes to assist at the appointment of the
judge. From this it is but a slight step to give the formula of action
which settles the law of the case, and to leave it to the _judex_ to
decide the question of fact.
§ 6. _The Servian Constitution_
At some period before the close of the monarchy the absurdity of the
existing constitutional arrangements began to be felt. In matters of
private law there was not a single important difference between a free
Plebeian and a Patrician; and large numbers of that portion of the
Plebs which had sprung from clientship were virtually in a condition of
independence. Although their tenure of the soil might be precarious,
their right of acting for themselves in the law courts questionable, it
must have been practically impossible to avoid the appearance of full
ownership where the lord had not asserted his right for generations,
or to prohibit the personal enforcement of claims where the original
patronage had been long forgotten or had lapsed through the extinction of
the patrician family on which the original client had been dependent. It
was, in fact, impossible to say where the class of free Plebeians ended
and that of protected Plebeians began. It was better, for the purposes
contemplated by the impending reform which bears the name of Servius
Tullius, that they should be regarded as on an equality, and that both
classes should make up a single order. The essence of this reform is,
in fact, the recognition of _equality of rights in landed property_.
Ownership of Roman land _ex jure quiritium_ was guaranteed to the whole
plebeian order—probably even to those dependants and emancipated slaves
whose clientship, and therefore whose precarious tenure of the soil, was
patent;[266] and with respect to the rights of _commercium_ the order was
put on a level with the Patriciate.
So far the object of the reform seems to be to confer privileges on
certain classes of the Plebeians. Its real meaning was wholly different.
The intention of the reformer—one which explains the readiness with
which the change seems to have been accepted by the Patricians[267]—was
to impose burdens on the whole plebeian community. A recognition of the
rights of property was a necessary preliminary to the imposition of
taxation and of the full quota of military service. The _patres_, who
welcomed this distribution of burdens, did not foresee that from these
obligations would flow a fresh series of rights which would impair their
monopoly of political power.
The Plebeians were being recognised for the first time as, in a sense,
members of the state. The first problem was the choice of a medium
through which they should be incorporated in it; for simple membership
of a state which was not based on membership of some lower unit was
inconceivable to the Graeco-Roman world. Many of the Plebeians had no
clans; they could not, therefore, be made members of the three primitive
tribes,[268] and when the change was first mooted, it was, probably
for the same reason, thought impossible to make them members of the
_curiae_.[269] New tribes must be invented which should include the
whole community. The chief burden of taxation, now imposed equally on
all classes, was to lie on land. What more natural than that the tribes
should be territorial divisions, so defined as to include all the
territory held in ownership by the Roman people? It is established that
the tribes, which are specially described as local,[270] contained only
that land which was subject to quiritarian ownership,[271] and from this
fact the deduction has been drawn that all land subject to quiritarian
ownership was included in the tribes. As the Servian tribes were believed
only to have comprised the city itself, as enclosed by the Servian
walls,[272] this view leads to the startling conclusion that no land
was held in private ownership outside the city, as its limits were fixed
by Servius—that the land outside, so far as it was not _ager publicus_,
was held by some larger corporation such as the _gens_.[273] But such a
conclusion is most improbable; it was the evolution of private ownership
which had created the rich Plebeian, who had often no clan and could not
hold in common with others, and such a holder was the least likely man in
the world to have land in or near the city, even as its limits were fixed
by Servius.
Consequently if, as seems to have been the case, the tribes did include
all landowners, they must have extended far beyond the bounds of the
city. Our authorities knew them at a time when their names indeed
survived, but when they had become strictly divisions of the city, by the
complete separation of the country from the urban tribes. If we believe
in the urban character of the four original _tribus_, we must accept the
clearly expressed but generally discredited belief preserved by Dionysius
that besides these four tribes, which comprehended only the city, Servius
established twenty-six others which took in the country districts.[274]
The view that the four tribes[275] comprised the country districts is
preferable, and is not incompatible with the fact that they certainly
designated parts of the city, nor even with the possibility of their
having been engrafted in some way on the older divisions of the _Ramnes_,
_Tities_, and _Luceres_.[276] Local creations of an artificial character,
independent of juxtaposition, are not unknown in early legislations;
they are found in the almost contemporary work of Cleisthenes of Athens.
But even this hypothesis is unnecessary; each tribe may have stretched
continuously with fairly definite boundaries beyond the city walls. The
country portions of these tribes were for a moment wholly lost by the
disastrous wars which followed the expulsion of the kings, and when the
_ager Romanus_ was again regained, a new organisation was adopted The
territory outside the walls was parcelled out into country tribes,[277]
and these grew in number as Rome’s conquests spread. The four Servian
tribe-names were kept as designations only of regions within the city.
Although the tribes were divisions of the land, and individuals were
registered in that tribe in which their land-allotment lay,[278] there is
no good reason for accepting the current belief that the landless citizen
was not enrolled in a tribe.[279] It has generally been assumed that the
only object of the Servian tribes was to furnish a system of registration
for taxation and the military levy. If this was the case, and we believe
that these burdens were imposed only on landed property, it follows as a
consequence that only holders of land were _tribules_. But there is no
evidence that their scope was so limited. They appear to be divisions of
the _populus Romanus_, and the disinherited or ruined Patrician who has
lost his land is still a member of that _populus_. The tribe to which
a landless man belonged would depend upon his domicile; it is a man’s
local position in a tribe, not the land he holds in it, which is given
as a criterion of his membership and of the political rights which it
subsequently conferred.[280]
The system of registration, which was the central idea of the Servian
reforms, was essentially military. It recognised only those persons
who were qualified for service by wealth, regarded them as forming an
army (_exercitus_), and divided this army into its two branches of
infantry and cavalry. This military organisation recognised one primary
and two secondary principles as the basis of classification; the first
was wealth, the second age, the third took the form of a subdivision
for strategic purposes, the military unit employed being the “hundred”
(_centuria_).
For the moment we may overlook the cavalry and fix our attention on the
bulk of the citizens who form the infantry. These are split up into five
divisions, which were at a later period called _classes_. The basis of
division was wealth, and the crucial question is “what kind of wealth?”
It is almost certain that it could not have been wealth reckoned in
money. Although Rome was a seaport and a trading state, it is doubtful
whether even the old libral _as_, which was used as a medium of exchange
by weight, was in current use at this time;[281] and therefore the
detailed accounts given of the money valuations by which the classes were
fixed must refer to a later period in the history of this organisation.
The alternative that has been suggested is land.[282] There would be
no difficulty in accepting this substitute, paralleled as it is by the
similar organisation of Solon, were it not that the hypothesis ignores
sources of wealth which the earliest Roman law seems to have classed
with land, i.e. slaves and domesticated beasts. These _res mancipi_ are
as much the object of quiritarian ownership as land, and they may exist
without it. A man might own no land and yet be rich in cattle and sheep
which he drove on the _ager publicus_, or in slaves engaged in productive
handicrafts,[283] and the state was interested in all that was duly owned
and was properly the subject of assessment (_res censui censendo_);[284]
the Servian census must have been based on _res mancipi_, and to a
certain degree it was a census based on currency, for cattle (_pecus_)
were recognised as a medium of exchange (_pecunia_).
On the basis of such a census five classes were distinguished; the census
of each, in terms of the later assessment, which was probably expressed
in _asses sextantarii_, being respectively 100,000, 75,000, 50,000,
25,000, 11,000 asses.
Each of these divisions was subdivided into two with reference to
age, the _juniores_ (from eighteen to forty-five) being the effective
fighting force, the _seniores_ (forty-five to sixty) the home defence.
The final division is into the military unit, the century (_centuria_),
consisting nominally of a hundred men. This was the minimum strength of
the lowest unit, but the census list did not represent the effective
fighting force of the legion organised for battle, but the numbers
qualified for service; consequently the centuries of a particular
class were raised to the quota required to include all the members of
that class. The numerical proportion of the centuries of the different
classes to one another is very striking. The centuries of the first class
(eighty in number) are almost equal to those of the four other classes
put together (collectively ninety in number). If this table exhibits
the real proportion of social classes to one another, it would show a
wonderfully equal distribution of land in the state, one so equal as to
cause most of the landholders to be placed in the same class, for the
list would mainly represent holders of land (the other _res mancipi_
not being usually divorced from its possession). But the proportions of
the classes may only show that the centuries of richer citizens were
still regarded as forming the more permanent force, the other divisions,
not much more numerous though drawn from a larger population, being
merely supplementary. We know that members of the first class were more
perfectly equipped,[285] and the fact of their being the main strength
of the army would be proved if it were true that this class alone was
originally _classis_ (“the line”) and that all the others were _infra
classem_.[286]
As will be seen from the accompanying table of the census, the mass of
citizens whose property fell below that of the lowest class was not
wholly unprovided for. They were organised, according to Livy, into six,
according to Dionysius into five, centuries. Some of these were composed
of professional persons, whose services were indispensable to an army,
and who were, perhaps, members of the trade guilds (_collegia_) which are
said to have existed in the regal period.[287] Such were the carpenters
(_fabri_) who formed two centuries, and the horn-blowers and trumpeters
(_cornicines_ and _tibicines_) who formed one each.
THE SERVIAN CLASSIFICATION
THE CAVALRY
18 centuries, with no fixed property qualification.
THE INFANTRY
_1st Classis_—100,000 asses (Livy and Dionysius),[288] 120,000
asses (Pliny and Festus).[289]
Seniores, 40 cent. } 80
Juniores, 40 cent. }
_2nd Classis_—75,000 asses (Liv. and Dionys.).
Seniores, 10 cent. } 20
Juniores, 10 cent. }
_3rd Classis_—50,000 asses (Liv. and Dionys.).
Seniores, 10 cent. } 20
Juniores, 10 cent. }
_4th Classis_—25,000 asses.
Seniores, 10 cent. } 20
Juniores, 10 cent. }
_5th Classis_—11,000 asses (Liv.), 12,500 (Dionys. 12½ minae).
Seniores, 15 cent. } 30
Juniores, 15 cent. }
_Fabri_—2 cent. (voting with 1st class, Liv.; }
with 2nd class, Dionys.) }
_Accensi_, _cornicines_, _tibicines_, 3 cent. } 6 cent. (Liv.).
(Liv.), 2 cent. (Dionys.) (voting with 4th } 5 cent. (Dionys.).
class, Dionys.). }
_Capite censi_, 1 cent. }
Total, 193 centuries (Dionys.), 194 (Liv.).
THE CENSUS
As interpreted by Mommsen,[290] who holds As interpreted by Belot,[291]
that the figures are given in _asses who holds that the
sextantarii_ [i.e. _asses_ of two ounces figures are given in
weight—⅙ of the libral _as_ (the later _asses librales_ (later
_sestertius_)]. _sestertii_).
The older _as_ Later (_circa_
(¼ denarius) 269 B.C.)
equivalent to
⅒ denarius
_1st Classis_ 40,000 100,000 100,000
_2nd ” _ 30,000 75,000 75,000
_3rd ” _ 20,000 50,000 50,000
_4th ” _ 10,000 25,000 25,000
_5th ” _ 4,400 11,000 12,500
Another century was formed by the _accensi_ or _velati_. These were
men with no heavy armour, who might be enrolled as occasion required
(_adscripticii_), or who marched to battle as light-armed troops ready at
any moment to take the armour and places of the fallen legionaries.[292]
No property qualification was required for these three groups, the
reason being that their place in the army did not demand it. But to
these Livy and Dionysius add another unpropertied class, the century of
_proletarii_, which included the whole mass of the people not registered
in the _classes_.[293] If, however, we believe in the originally military
character of the organisation, there seems no place for this class which
is not already filled by the _accensi_ and _velati_. At a later period
the _accensi_ became a more definite body, acting as assistants to the
magistrates and forming a corporation with certain immunities,[294]
and at this period the _proletarii_ may have been recognised as the
class liable to taxation, which fell below the minimum census. But they
probably do not belong to the original Servian organisation.
The citizens included in the census list were collectively described as
_classici_, and were spoken of as _locupletes_ and _assidui_, the latter
word probably meaning people “settled on land,” “landholders,” as most of
those originally enrolled in the _classes_ were.[295] The others were the
children-begetting citizens (_proletarii cives_). The use of the census
for purposes of taxation gave other names to this class. In contrast to
the _assidui_, who were registered on their property, they were called
_capite censi_ as being registered on their _caput_ or mere headship of
a family; and further, when the incidence of taxation extended below
the minimum census, they were spoken of as _aerarii_, because their
participation in the burdens of the state was shown only by the payment
of taxes (_aes_). The word _aerarii_ seems always to have denoted those
outside the census list.[296]
The cavalry was an adaptation of the old patrician corps of
_equites_[297] to the new conditions. The six original centuries were
preserved and consisted as before of Patricians;[298] they still bore the
names of the ancient tribes, and were called respectively _Titienses_,
_Ramnes_, _Luceres_, _priores_ and _posteriores_.[299] They continued to
be known as the _sex centuriae_, or (after the centuries acquired voting
power) the _sex suffragia_.[300]
To these were added twelve new centuries (_centuriae equitum_),
composed, like the _classes_, of Patricians and Plebeians. But, unlike
the _classes_, they were not enrolled on a property qualification. This
is explained by the fact that they are not a list of men qualified for
service but actually in service, a standing corps selected by the king
and whose expenses were largely defrayed by the state. In later times,
each knight was on his entrance into the corps given the means wherewith
to furnish himself with a pair of horses[301] (_aes equestre_), and also
a regular sum of money for their support (_aes hordearium_), the latter
money being defrayed by unmarried women and orphans, who were possessed
of property but could not by the nature of the case be rated in the
census.[302]
Each of these centuries formed a troop of one hundred men under a
_centurio_,[303] and these eighteen centuries of Roman knights with
public horses (_equites Romani equo publico_) continued unaltered in
numbers and (with the exception that the _sex suffragia_ ceased to be
chosen from the Patricians) in character to the end of the Republic.
Although no definite census was required for the class, it was probably
chosen from the first from the richest and most distinguished citizens;
for its permanent existence implies leisure. The class was not divided
by age into _seniores_ and _juniores_, for an obvious military reason.
They were all _juniores_, and probably young men, whose release from the
centuries was granted as soon as age had impaired their efficiency for
service.
This centuriate organisation seems to have little or no connexion with
the four Servian tribes,[304] beyond the accidental one that the basis
of qualification was mainly land, and that all land which was private
property was registered in the tribes. Its primary meaning was the
assembly and registration of those liable for military service. It
acquired a secondary meaning when (at what period we do not know but
perhaps from its first organisation) it was used as a scheme for the
collection of taxes on the registered wealth of the citizens in the
_classes_. The act of registration (_census_) was a solemn religious
function conducted by the king. He numbered his fighting force, saw that
each warrior was in his due rank, excluded from these ranks men who were
stained with sin, and then concluded the examination with a ceremony of
purification (_lustrum_). It is only with reference to the collection of
taxes imposed at this levy that the tribe would be of importance. The
century was a military unit, dissolved as soon as the army was disbanded;
the tribe was permanent, hence the war-tax (_tributum_) was perhaps
collected from the first by the presidents of the tribes.[305]
A transference of political rights from the patrician body to this new
assembly was so far from being the motive of the change that it was
probably never contemplated. But such a transference was from the nature
of things inevitable. Apart from the general fact that a citizen army
must gain the preponderance in political power, there were certain public
acts which were inevitably performed from the first by the assembly of
the centuries, or were very soon found to be more rapidly, easily, and
appropriately performed by that assembly than by the _comitia_ of the
_curiae_.
Firstly, it may have been the custom for the oath of allegiance to the
king, first expressed in the _lex curiata_,[306] to have been renewed at
every taking of the census. This expression of allegiance, asked for by
the magistrate, was now a _lex centuriata_.[307]
Secondly, most of the popular utterances or _leges_ of early Rome must
have referred to military matters, and convenience, if not a sense of
consistency, must soon have dictated that they should be pronounced
by the army. The choice of officers rested with the king; but if the
appointment of the higher delegates required the ratification of the
people,[308] this must soon have been given by the centuries. The
regal jurisdiction which the people challenge by the _provocatio_ is
essentially military jurisdiction;[309] and consequently the exercise of
this jurisdiction, when the king allowed the appeal, must soon have been
felt to belong to the army. It was to this assembly that the announcement
of a proposal to declare war[310] would most appropriately be made; it
was above all by this assembly, which represented the taxpayers, that the
war-tax (_tributum_) would most appropriately be assessed.
We cannot trace the successive steps in the acquisition of power by the
centuries or its growth from an army into a _comitia_. They must have
been the chief political changes which filled the closing years of the
monarchy and the early days of the Republic; for even the abolition of
monarchy itself, revolutionary as it was, was less of an alteration
in the structure of the constitution than this transference of the
attributes of sovereignty from one assembly to another, from a single
to a mixed order. The _comitia curiata_ was not suddenly stripped of
its powers; but the organising genius of a single supreme magistrate
had prepared the way for a change, which was a prototype of the gradual
insensible revolutions through which Rome was to pass.
The change which closes the history of this period, although not so
radical, was far more sudden and violent. The monarchy itself was
overthrown. History has tried to invest this revolution with all the
legal grounds and legal forms which it could summon to its assistance.
Servius had had it in his mind to complete his democratic work by laying
down the full _imperium_;[311] and Tarquin the Proud, the last of the
great Etruscan line, had broken through the constitutional usages of
the monarchy[312] and had ruled without challenging the allegiance of
the people.[313] That there was some fearful abuse of the kingly power,
typified in the associations that gathered round the words _rex_ and
_regnum_ and in the oath which made any one who aspired to monarchy an
outlaw,[314] we may without hesitation allow; for Rome, as shown by the
power she continued to entrust to her magistrates, had not outgrown the
idea of royalty. But there was no constitutional mode of deposing a king.
The auspices had returned to the fathers in unhallowed fashion, and the
war waged by Tarquin and Etruria is a war for the maintenance of the
principle of divine right. But yet Rome held that the divinity of the
magistracy still remained; the auspices again left the fathers’ hands and
were conferred on two citizens chosen from the _patres_.[315]