The auspices were divided into _impetrativa_ (or _impetrita_) and

_oblativa_.[132] The _auspicia impetrativa_ were those which were sought

and asked for, and such signs might be taken from observation of the sky

or from the flight or sounds of birds. The _oblativa_ were those which

were forced on the attention, and which, since they were not sought,

were generally regarded as an impediment to action, and, therefore, as

unfavourable. They were gathered from a heterogeneous collection of signs

of ill-omen (_dirae_). It is plain that the right to take or, as it is

expressed, to have auspices (_habere auspicia_) can refer only to the

first of these two categories; it was this right that was assumed to be

peculiar to the Patricians; it was the members of the original clans

alone, the primitive _patres_, who had the right of asking signs of the

gods, and it was held that every important act of their lives, whether

public or private, should be pervaded by this divine intercourse. It was

believed that it was through auspices that the city had been raised,

political development attained, and former victories won.[133] The

existence of the patrician order is from this point of view a necessary

condition of the existence of the state itself, for without it the right

of eliciting the divine will would be wholly lost.[134] But no human

power could prevent the Plebeians from following the religious scruples

of their betters in giving heed to those warnings which were thrust upon

their notice. The _auspicia oblativa_, whether the gods destined them for

others besides the patrician body or not, must from the earliest times

have been respected by the Plebeians, and have guided their political

conduct when they became a corporation within the state.

The right of _taking_ auspices was neither a priestly nor even a

magisterial function, but was possessed by every Patrician. But the man

in a private capacity could exercise it only in his private concerns; the

auspices destined to guide public action are vested in the person of the

patrician magistrate. Hence the distinction between _auspicia publica_

and _privata_. There was a time when no important act of business or

domestic life was undertaken without an appeal for divine guidance.[135]

Marriage especially demanded the taking of the auspices; and even when

the custom of such private divination had become wholly discarded, a

survival of the custom is found in the presence of _auspices_, friends of

the bridegroom who superintend the due performance of the rites.[136] The

_confarreatio_ was older than the traditional institution of the augural

college, and it is not probable that official intervention was brought

to bear on marriage, still less on such concerns as were more strictly

private. Hence it is difficult to see how the Plebeians could have been

prevented from taking the _auspicia privata_, although their use of them

was probably scoffed at by their patrician rulers. On the one hand, we

find that the incapacity of the Plebeians to share in the auspices was

one of the arguments used against the permission of _conubium_ between

the orders;[137] on the other, that the _auspex_ continues to be an

integral part of a ceremony which was founded on plebeian marriage law.

It was different with the auspices taken on behalf of the state

(_auspicia publica_). It is the Patricians alone who have these auspices,

and only a magistrate belonging to the order can exercise the right

of looking for them (_spectio_).[138] This remains not only a purely

magisterial, but a purely patrician privilege, and the so-called

plebeian magistrates of later times, great as their power was, had not

the gift. It is quite true that, after the Plebs had forced its way into

the consulship, this right could not be denied to the plebeian holders of

the supreme office. But the admission was based on the legal fiction that

the holder of an office once reserved to the _patres_ was, for religious

purposes, a patrician magistrate.[139]

The enjoyment of full political rights in ancient Rome was conditioned

only by membership of a patrician _gens_; full citizenship here, as in

most ancient states, being dependent on birth, and the membership of a

purely private association satisfying all the demands that the state made

as a condition of the attainment of its rights. But there were other

forms of association of a definitely political character, amongst which

the citizens were distributed, and as members of which they exercised

active political rights or were subject to personal burdens. These were

the three patrician tribes of Ramnes, Tities, and Luceres, and the thirty

_curiae_. With reference to the question whether these were primary and

natural associations of an ethnic character or artificial creations

made by a supreme authority after the founding of Rome, we have already

seen[140] that the _tribus_ are probably an ethnic survival artificially

employed; in the case of the _curiae_, it must remain far less certain

whether they were of spontaneous growth or purely artificial creations,

or (what is perhaps more probable) in the main natural associations,

artificially regulated in number and grouping to suit a political purpose.

The tribe, which was a division not merely of the citizen body but of

the land, was the basis for taxation and the military levy.[141] We

know nothing of the first burden, but it is probable that no detailed

scheme of direct taxation existed in the early Roman state. The revenues

from the king’s domains probably rendered him self-sufficing, while

the patrician burgesses served in the army at their own cost, and were

doubtless expected to defray the expenses of their retainers. It is

probable that in cases of emergency a tax in kind was levied from the

landholders of the tribes.

Of the military burdens tradition has preserved some plausible details.

The army was known as the _legio_ or “gathering,”[142] and was composed

of three “thousands” (_milites_),[143] one from each of the three tribes.

These foot-soldiers were commanded by three or nine tribal officers, the

_tribuni militum_.[144] The cavalry consisted of three hundred _celeres_,

one from each of the three tribes, each commanded by three _tribuni

celerum_. When the Patriciate was enlarged by the addition of the _gentes

minores_,[145] these three hundreds (_centuriae_) were increased to

six.[146]

Besides the heavy infantry and the cavalry, there may have been a corps

of light-armed troops (_velites_ and _arquites_), and these would

doubtless have been composed mainly of clients. We do not know whether

the free Plebeians were forced to serve; but, if they did, it would only

have been in this inferior capacity, which required no time for training

and no cost of maintaining a panoply. It is evident that the whole burden

of the regular levy, and of such war-taxation as then existed, fell upon

the Patricians, and before the close of the monarchy an effort was made

to remedy this unequal distribution of burdens—an effort which had as its

result the abolition of the patrician tribes as the leading divisions of

the state and a serious infringement of patrician rights.

The thirty _curiae_, originally local units, as is proved by their

names,[147] were divided, ten into each of the three tribes. The members

of the clans belonging to the same _curia_ were called _curiales_. But,

although the _curiae_ had local centres, membership of these bodies did

not depend on residence in a given locality. It was hereditary; and if

the members of a _gens_ migrated from its _curia_, the _gentiles_ were

still members of that state-division. The _curiae_ were religious as

well as political associations, which had from the first, or finally

developed, a close corporate life. Each had its peculiar _sacra_[148] and

a place of worship, containing an altar and chapel, which itself bore

the name _curia_;[149] and the religious affairs of each were conducted

by a priest called _curio_, assisted by a _flamen curialis_.[150] The

thirty _curiones_ formed a college, of which the _curio maximus_ was the

president.[151]

It is difficult to say how far the religious organisation of the _curiae_

was a natural or artificial development. But artifice was certainly at

work in determining their important political character. The primitive

popular assembly at Rome is the _comitia curiata_, composed wholly

of Patricians. Here each member of a patrician clan above the legal

age—probably the age of eighteen, at which military service commenced—had

the right of giving a single vote; a majority of the _curiales_ decided

the vote of the particular _curia_, and the decision of the assembly was

determined by the majority of the groups.

They also had, in a secondary degree, an importance of a military kind;

for the supply of knights to the corps of _celeres_ is said to have been

effected through the _curiae_.[152]

§ 5. _The Monarchical Constitution_

It is generally agreed that the monarchical constitution of early Rome

rested on a limited sovereignty of the people, a power restricted by

the extraordinary authority of their sole magistrate. This popular

sovereignty was asserted in jurisdiction, in legislation, and in the

ratification of magisterial power. The attribution of the right of appeal

in criminal cases (_provocatio_)[153] to the people shows that with them

rests either the sovereign attribute of pardon or some right of trying

criminal cases in the last resort. Tradition makes the Roman people the

sole source of law,[154] that is, of standing ordinances of a general

kind which are to bind the community,[155] although the initiative in

legislation can come only from the king; and apart from the rulings of

the pontifical college, which did not require the sanction of the people,

this theory of primitive legislation seems to be correct; for the very

early laws passed by the _comitia_ on the downfall of the monarchy do

not appear to mark any violent break in the theory of the constitution.

We do not know whether the king employed the formula afterwards used

by the Republican magistrates, which elicited the “will and command”

of the burgesses (_velitis_, _jubeatis_, _quirites_); but law (_lex_)

is from the first something “laid down” by a competent authority, and

binding, therefore, in virtue of the power that ordains it.[156] After

its ordinance it may or must create a contractual relation between

individuals,[157] but there is no hint of its being the result of a

contract or co-operation between independent authorities. The source of

law is, therefore, simple; it is the people’s will; but, through the bar

to utterance created by the magistracy, this will is very limited in its

capacity for expression. The people are also affirmed to have been in a

certain sense the source of honour, and typical illustrations of this

power are presented by the traditional beliefs that the regal _insignia_

of Etruria, adopted by the kings of Rome, were only assumed by them

with the consent of Senate and people,[158] and that the appointment of

officers for special purposes, although these may have been in theory

merely delegates of the king, had to be ratified by laws of the _curiae_.

The quaestors, the earliest prototypes of the later magistrates at Rome,

are said to have been so appointed.[159]

The people, therefore, possessed certain sovereign rights, but each right

was limited by the vast authority of their personal representative, who

wielded the whole of the executive, and so much of the legislative power

as is implied in the sole right of initiative. We cannot even speak of

the people as _vesting_ this power in their king; for their right of

election was, as we shall see, probably as limited as their power of

legislation.

This personal head possessed a variety of titles which marked the various

aspects of his rule—titles which survived into the Republic, and, on the

differentiation of the functions which he united, were applied to various

magistrates. As supreme judge he was _judex_, as leader and commander

in war _praetor_,[160] _dictator_, and _magister populi_.[161] The most

general title which marked him out as universal head of the state, in

religious as in civil matters, was that of _rex_, the “regulator” of all

things human and divine—a title which survived in the _rex sacrorum_, the

heir of the king in sacrifice and in ritual. The powers on which this

position was based were summed up in the word _imperium_.[162]

The severance of the king from the state, over which he ruled, was also

expressed in certain outward signs (_insignia_), which distinguished him

from the rest of the burgesses. He was preceded by twelve “summoners”

(_lictores_),[163] each carrying a bundle of rods (_fasces_), and the

axe-head gleamed from these bundles even within the walls, for the

king’s military jurisdiction could be exercised within the city. His

robe was of “purple,” or rather of scarlet—the colour in which most

nations have seen an emblem of sovereignty—but his dress probably varied

with the ritual which he was performing, and the three kinds of striped

garment (_trabea_) which survived in the Republic—that of purple for the

priestly office, of purple and saffron for augury, of purple striped

with white for the _rex_[164]—were probably all vestments of the king.

Tradition also assigns him the eagle-headed sceptre, the golden crown,

the throne (_solium_),[165] and the chariot within the walls, from which

the curule chair (_sella curulis_) was believed to be derived.[166] The

statement that the triumphal _insignia_ of the Roman magistrate were

but the revival of the ordinary adornments of the king[167] is extremely

probable; for the crown, the _toga picta_ (a development of the purple

robe),[168] and the chariot reappear in the Roman triumph.

Other royal prerogatives were connected with the primitive conception of

a patriarchal monarchy. The king, although he lacks the absolutism of

the _paterfamilias_, occupies much the same position in the state as the

father does in the family. In a sense he is owner of the whole community,

and as such capable of commanding the _munera_ of the burgesses.[169]

But a large portion of the public domain was more peculiarly set apart

for his own private use.[170] This crown-land must have been worked

mainly by the king’s own clients, who held it _precario_ from him;[171]

for there seems no reason to doubt the belief that a large proportion of

the half-free Plebeians were in the immediate _clientela_ of the king,

connected with the community chiefly through him, its representative.

These may have been captives who had submitted to the _fides_ of the

state, and whom their conqueror had not attached as dependants to other

leading families of the community.

The theory of a kingship is best expressed in the mode in which the

monarch ascends the throne. The alternative principles that have usually

been recognised are the hereditary, the elective, or that of divine right.

Of the hereditary principle there is no trace at Rome. It is contradicted

by the facts of the traditional history, which believed that, when the

hereditary principle was first realised in the last king, the monarchy

came to an end; and it is expressly denied by later authors who reflected

on the character of the early monarchy.[172] There is rather more to

be said for the theory of divine right. Romulus is the son of a god

and awaits the verdict of heaven before he assumes his rule. Numa, his

successor, insists that the same verdict shall be appealed to.[173] But,

if the taking of the auspices be the sign of a divine origin, then

everything in Rome proceeds almost equally from the gods. Probably in

earlier as in later Rome religion played a most important subsidiary part

in public life, but we have no warrant for believing that it was ever the

sole guiding power. As we shall see, in discussing the question of the

inauguration of the king, this theory raises into a primary and material

what was merely a secondary and formal element in the transmission of the

monarchy, although this formal element was one of the utmost necessity

and importance.

The Roman thinkers were thus thrown back on the theory of

election. Tradition is unanimous in representing the monarchy as

elective—depending, i.e., on free popular election, or on such election

guided by the Senate.[174] On the death of a king there is no immediate

successor with a title to rule; an interim-king (_interrex_) is appointed

for a few days, and on his proposal a king is elected by the patrician

burgesses at the _comitia curiata_, subject to the sanction of the

patrician Senate (_auctoritas patrum_).[175]

In the expression of these views the Roman thinkers were attempting to

reconstruct the monarchy from a knowledge of their own magistracy; for

they rightly believed that this magistracy was a very slight modification

of the original kingship. The elective principle of the Republic was not

regarded as a novelty in the theory of the magistracy, and there were two

reasons for this view. The first was that there was a real continuity,

for the elective process was always subsidiary to another, that of

nomination by the magistrate who guided the elections. The latter became

an almost formal process in the Republic, but the question was not asked

whether at one time it may not have been the material element. Secondly,

there was really an elective element in the monarchy, which survived as

a form into the Republic, a form which the hypothesis of monarchical

election adopted by Roman antiquarians could not explain. It is strange

that, in seeking for their theory of regal appointment, they should not

have appealed to the clearest survival of the monarchy, the dictatorship,

on which so much of the rest of their reconstruction of the monarchical

power was based.

In the two definite survivals of the Roman monarchy election was not

recognised; the dictator was nominated by the consul, not by his

predecessor, for it was only an occasional office; and the _rex sacrorum_

was nominated by the _pontifex maximus_,[176] no longer by the preceding

_rex_; for this office simply continued the priestly functions of the

king, the religious headship being vested in the _pontifex_. This oldest

principle of appointment survived in Republican Rome as an integral part

of the elective process, to reappear again in the Principate, in cases

where election had become a mere form, as the living principle.[177] It

is, in fact, the one principle that has a continuous history; election is

the Republican interlude.

If, therefore, we are led to consider the monarchy as not purely an

elective office, and substitute for election the principle of nomination,

we must consider that it was the right, and probably the duty, of

the king of Rome to nominate his successor. If there had been no due

nomination during his lifetime, and consequently no distinctly marked

out successor to the monarchy, the duty of providing such a successor

lapsed to the Senate, from which body the _interrex_ was appointed.

The _interregnum_ is said by tradition to have dated from the first

vacancy in the regal office, after the death of Romulus.[178] When such

a vacancy had occurred, the auspices, under which the state had been

founded, and which were the mark of divine acceptance of the kingly

rule, “returned to the _patres_,”[179] and we are told that this was

from the first interpreted to mean, not to the _comitia curiata_, but

to the patrician Senate. The earliest _interregnum_ is represented as

an exercise of collective rule by the Senate; but, on the analogy of

the sole magistracy, it took the form of a creation of a succession

of _interreges_. The first step was the division of the Senate into

_decuriae_;[180] each decury had fifty days of government allotted to

it; within this period each individual member of the _decuria_ exercised

rule for five days, and, according to one account, the succession of the

decuries was determined by lot (_sortitio_).[181] The rule is represented

as collegiate, the whole decury possessing the _imperium_, while the

individual who ruled for five days had the _fasces_ and the external

emblems of the royal power.[182] In later times we shall see that, though

the _interregnum_ was retained, the whole procedure was simplified by

the abandonment of the collegiate principle. If it ever existed, we must

suppose that, as soon as ever the resolution of the Senate was taken, the

collective rule could be interrupted by any _interrex_, except the first,

nominating the king.[183] The _interregnum_, although represented by our

authorities as an invariable part of the procedure in the appointment of

a king, was probably from the first a makeshift, only resorted to when

the ordinary procedure had been interrupted through unforeseen causes,

and there was no definitely designated successor.[184]

Yet, though the monarchy was not strictly elective, certain

quasi-elective processes were connected by tradition with the appointment

of the king, on the part both of Senate and people.

The authority of the Senate (_auctoritas patrum_) is mentioned in

connexion with all the transmissions of the supreme office.[185] It is an

authority, however, which did not spring from any theory of the Senate’s

possessing elective powers, but was simply a result of the universal

principle that no man in authority should act without taking advice

of his _consilium_, and was merely an outcome of the constitutional

necessity which the king was under of consulting the Senate on all great

measures affecting the popular welfare. The greatest of these would be

the appointment of a successor.

Secondly, we are told of a formal ratification of the king’s power by the

people assembled in the _comitia curiata_, one which continued into the

Republic under the title of the _lex curiata_, a formal sanction always

required for the ratification of an _imperium_ already assumed.[186] It

is said to have had this character even in the time of the monarchy, and

this was thought to be shown by the fact that the king himself proposed

the _lex curiata_ which was to give the sanction for the exercise of

his own power.[187] Such procedure was, indeed, necessary, since no

one but the king had the right of putting the question to the people;

consequently we must accept the view that the _lex curiata_ was not

absolutely necessary for the exercise of power, and might be legally,

though not perhaps constitutionally, withheld, as it was by King Servius

during the early part of his reign.[188]

The Roman jurists, who believed that the king was elected, credited

the people with two distinct acts in the creation of a king—first, his

election, and then the formal ratification of this election.[189] A

parallel for this seemed to be furnished by Republican usage, where the

_lex_ was taken by magistrates already elected as a necessary preliminary

to the exercise of the _imperium_. But at this period the magistrates

were not elected by the _comitia curiata_, and the _lex_ of this assembly

is a mere survival, a reminiscence of the formal sovereignty which

continued to be vested in the _curiae_. The _lex curiata_ is much more

comprehensible in origin if the king was first nominated independently of

the people and then challenged their allegiance. It was probably little

more than an acclamation on the first summons of the _curiae_ by the

king. The preceding king must have already made known to the people his

choice of a successor, and the popular sentiment would have been already

expressed; thus there was little chance of adverse shouts when the new

king challenged the allegiance of his burgesses. If there was a chance

of the challenge not being accepted, it might, as we saw, be withheld.

But an exercise of the regal _imperium_ which was not sanctioned by these

two acts of Senate and people—the expressed will of the one and the

declared allegiance of the other—was regarded by later authorities as

unconstitutional.[190]

There was also a religious aspect of the king’s appointment. His

assumption of power was regarded as incomplete until it had been shown

that the gods sanctioned the rule which he had assumed. This was done by

the first taking of the auspices[191]—a ceremony observed by magistrates

of the Republic before entering on the exercise of their office. This was

the final test for the right to exercise secular power; but the king’s

position as high-priest of the community was supposed to require another

initiatory act.

This was the inauguration, which differed from the taking of the

auspices. In the ordinary form of the _auspicia_ the individual entering

on office has himself the right of _spectio_;[192] in the Republic it

belonged to magistrates as such, and was never regarded as a merely

priestly function. In the special inauguration, on the contrary, the

_spectio_ is taken by some other than the person inaugurated. The

priest-king Numa is naturally associated with this ceremony by tradition;

by him an appointed augur is employed to watch for signs,[193] and this

ceremony of inauguration by one of the priesthood, other than the person

so inaugurated, is represented as being from this time onwards a standing

part of the procedure requisite for entrance on the regal office. But

this legend of Numa is rendered somewhat incredible by the fact that the

augurs have no right of _spectio_, and that of all the priests of the

Republic it is only the semi-magisterial _pontifex maximus_, the head of

the state religion, who has the right of taking auspices. The fact that

the _rex sacrorum_ in the Republic had a special inauguration[194] might

lend support to the legend, were it not that this _rex_ had become wholly

a priest and thus lost his right of intercourse with the gods through

the _spectio_. The question of the inauguration of the king, unimportant

in itself, runs up into two wider questions; the first is whether there

was a separation in idea between the king’s magisterial and his priestly

functions; the second, whether the king was himself _pontifex maximus_

and thus the supreme head of the Roman religion.

For an answer to the first question it is not safe to appeal to later

examples, for the priesthood and the magistracy may have been first

sundered during the Republic. But tradition[195] and survivals represent

the king as the _first priest_ in the community. His successor, the

_rex sacrorum_, ranks, as a priest, above the three great _flamines_

and the _pontifex maximus_ in the order of the priesthood (_ordo

sacerdotum_);[196] the religious duties of this _rex_ point to the fact

that the king’s functions were a regular _cultus_, not the occasional

religious duties of a Roman magistrate,[197] while his wife, the _regina

sacrorum_, had her own simultaneous sacrifices.[198]

But the position of first priest did not in the Republic imply the

headship of the Roman religion; the chief pontiff, who is its head,

comes, as we saw, low in the order of the priesthood. The importance of

_cultus_ and of religious authority springing from higher knowledge are

not the same. The pontiffs are only secondarily a priestly, primarily

they are a religious order, whose position is based on the knowledge

of religious law (_fas_). The separation between the true priesthood

and the presidency of religion may, indeed, have been a Republican

development, due to the secularisation of the magistracy; the priestly

functions of the magistrate being continued in the _rex sacrorum_, and

the religious presidency being also separated from the civil power,

but vested in another official, the chief pontiff. But it is possible

that the separation may have been primitive, and that _cultus_ and the

knowledge of religious law did not go together. It is evident that

great uncertainty prevailed as to the king’s relation to the pontifical

college. While one account speaks of Numa selecting Numa Marcius as

“_the_ pontiff,”[199] another describes the same king as instituting five

pontiffs,[200] and we are further told that, before the _lex Ogulnia_

(300 B.C.), the college consisted of four members.[201] The discrepancy

between the two last accounts has been reconciled by supposing that

the king himself was reckoned as a member of the college, and that the

expulsion of the king reduced the number from five to four.[202] It is

possible that the king did not bear the title _pontifex maximus_ and was

yet head of the college; it is even possible that, as one account which

we have quoted seems to indicate,[203] there was a chief pontiff as his

delegate. We can hardly refuse him a place at this board in face of the

evidences which point to his universal headship of religion. The creation

of the augurate and the priesthoods is his work. Romulus appoints the

augurs;[204] Numa institutes the three great Flamines, the Salii, and

the Pontifex, although most of the important ceremonies of religion are

performed by himself personally.[205] Consequently we may conclude that

the appointment of special individuals to these priesthoods must have

been a part of the king’s office.[206] It has even been held (chiefly

as an inference from the fact that the Vestals and Flamens were in the

_potestas_ of the _pontifex maximus_ of the Republic) that the former

were the king’s unmarried daughters who attended to the sacred fire of

the state in the king’s house, the latter his sons whose duty it was

to kindle the fire for the sacrificial worship of particular deities,

Jupiter, Mars, and Quirinus. This pleasing picture may have represented

the primitive state of the patriarchal kingship; but this had been

long outgrown before the close of the monarchy. There we find a fully

developed hierarchy and the existence of religious guilds, such as those

of pontiffs and augurs, who cultivate the science, not the mere ritual of

religion, and who have no possible connexion with the king’s household

arrangements.

At the head of this imposing organisation stands the _rex_, and, in

virtue of this position, he is the chief expounder of the rules of divine

law (_fas_). It is a law which has hardly any limits, running parallel

with civil justice (_jus_) but far beyond its bounds. Three methods of

its operation may conveniently be distinguished. One is purely religious

and ritualistic and is expressed in the control of priesthoods, religious

colleges, and cults. The second asserts itself in a control over the life

of the ordinary citizen in matters criminal and civil. The third is that

which connects the Roman state with other independent communities and

forms the international law of the period.

(i.) The control over priesthood and _cultus_ belongs to the history

of religion rather than to that of constitutional law, and it chiefly

presents a legal aspect in connexion with the question of religious

jurisdiction. The difficult questions that arose in Republican times

from the clashing of the religious and the civil power could hardly have

been heard of as yet, for the supreme control of both was vested in the

same man. But the very nature of this disciplinary jurisdiction over

priests has been a matter of some dispute. The favourite hypothesis of

a family jurisdiction has been applied to the case, and the hypothesis

may conceivably be correct so far as the Flamens and the Vestals are

concerned, although even in this sphere it is doubtful by what paternal

right the head of religion could do the Vestal’s paramour to death. Other

phases of the power are still more inexplicable on this ground. A right

of punishing augurs for a breach of ritualistic rules survived into the

Republic, and seems to be a jurisdiction exercised over them as members

of a religious body. There is, however, no trace of the priesthood

holding a privileged position, and in all secular matters its members

are subject to the ordinary law. Such privileges as they possess rest on

religious scruples. When the Flamen was caught (_captus_) for the god, he

became free from the paternal power,[207] and the civil authority could

not compel him to take an oath.[208] The persons of the Vestals were

inviolable;[209] the sanctity of both Flamens and Vestals also invested

them with the right of _asylum_. The bonds were struck off the prisoner

who took refuge in the Flamen’s house; and, if the criminal on the way to

punishment met him or the Vestal, he could not be scourged or executed

on that day. But it is only in these two cases that the severance from

the world is strongly marked; we have no reason for believing that, in

the earliest period of Rome’s history, the members of the religious

orders were isolated from the mass of the people with privileges and a

jurisdiction all their own.

The control of the _cultus_, and the maintenance of its purity, are

marked as one of the earliest duties of the _pontifex maximus_, and must

have belonged to the king. It is he that sees that no ancestral right is

neglected, no foreign one acquired.[210] Here we have a religious power

that governs more than the priesthood; the maintenance of the _sacra

privata_ are as important in its eyes as that of the _sacra publica_, and

its supervision must have extended beyond the limits of the Patriciate;

for it is impossible to believe that religion cared only for the _sacra_

of the patrician clans, and aimed only at preventing them from corrupting

their ancestral worship. The Plebeian and the client were under the

protection of the gods, and might bring down a curse on the community by

reckless innovation or neglect.

(ii.) The control exercised by _fas_ over the citizens’ life in

matters not immediately connected with ritual and worship may be first

illustrated by its penal sanctions. We cannot, indeed, say that there was

a time when the Roman law regarded every crime as a sin, for from the

very first we are confronted with a dualism, and religious and secular

sanctions exist side by side. But religion has left a deeper impress

here than elsewhere—in the name given to punishment,[211] in the form of

its infliction, in the still stranger fact that, by the disappearance of

religious sanctions, breaches of obligation that the modern world regards

as crimes remained unpunished by the secular arm.

The punishment for sin must be some form of expiation. This is the

_piaculum_ adjudged in the monarchy as in Republican times by the head

of religion; and not adjudged arbitrarily, for even by the close of

the monarchical period classes of offences had doubtless been drawn up

by the pontiffs with the equivalent expiation, which was directed to

avert the anger of the gods from the whole community. Apart from the

regularly recurring lustrations at the census—the consequence of the

sense of universal sinfulness in the community—individual misdeeds could

be expiated in this way. Such was a murder that was unintentional or

in which mitigating circumstances were present,[212] and such was the

violation of the chastity of Juno’s person through the touching of

her altar by a _paelex_.[213] In graver cases expiation could only be

accepted where there was no intent,[214] as in the wrong done to a god

by swearing falsely in his name.[215] There was also a class of deadly

sins for which the gods would accept no atonement but the life and the

goods of the sinner himself. Amongst the acts which called forth this

_consecratio capitis_ were the violation of the relations of client and

patron,[216] the ill-treatment of elders by their children,[217] the

pulling up or alteration of boundary stones,[218] the destruction of a

neighbour’s corn by night.[219] The god thus appeased was often the deity

who was held to be specially offended by the act; but sometimes the head

and the goods were not dedicated to the same divinities. The person was

adjudged to Jupiter, the dispenser of life; the landed property to the

gods who nourish the human race, Ceres and Liber.[220] This custom of

consecration gradually ceased to have its literal fulfilment. A man might

still be declared _sacer_, but excommunication had taken the place of

immolation. Such a man was cut off from all divine and, therefore, from

all human help, and his slayer was blood-guiltless.[221] This theory, of

a man being cut off from the community while his life was spared, became

of great importance in the history of Roman criminal law. It survived in

the “interdiction of fire and water” (_aquae et ignis interdictio_), and

familiarised the Romans with the idea that the severest penalty did not

require the sacrifice of life.

In matters of private law we have already witnessed the presence of

religion in marriage, adoption, testament, and the transmission of the

_sacra_. Its authority may be further illustrated by the formularies

of civil procedure. Here the form of words was all-important, and in

the early Republic all binding _formulae_, whether for oaths that were

to be effectual, for vows or for consecration, were known only to the

pontiffs. The solemn forms of law (_legis actiones_) issued from the

same authority, and in one of their most frequent manifestations, the

_sacramentum_, the procedure was distinctly religious.[222] But who could

say whether the king, when he gave the prescribed form of words for an

action, acted as a religious or a civil head, as the representative of

_fas_ or _jus_? Here we are on the borderland between the two.

(iii.) Nations know no common _jus_, and _fas_ is the sole support of

international law. Each people is protected by its own divine guardians;

hence a war of two nations is a contest between their gods, and a treaty

between two peoples a compact between their respective divinities. But

each nation is to some extent under the protection of the other’s gods.

Jupiter of Rome is powerless if the war commenced by Rome is unjust, and

will punish his own people if they have stained his honour by violating a

treaty. Even though there is no belief in community of guardianship, the

rights of other peoples are still conceived to be under the protection of

the Roman gods.

These beliefs necessitated elaborate religious preliminaries to the

declaration of a war in order that it might be just and holy (_justum

piumque_),[223] as well as ceremonies for the conclusion of a peace that

was to bind the public conscience (_fides publica_).[224] Such a ritual

may have been performed, originally, by the king himself; but tradition

states that, at a very early period, a special guild of priests, the

Fetiales or public orators, were appointed for this purpose.[225] Their

chief functions were the declaration of war and the conclusion of peace,

but the ritual observed in both of these acts may be more appropriately

described when we are dealing with the international relations of Rome.

There were other religious preliminaries to a war which, though not

necessitated by divine law, it was highly expedient to observe, in order

to increase the chances of victory. Vows (_vota_) were offered to the

native gods, and for these to be valid they must be couched in a form

prescribed by the pontifical college.[226] And sometimes the king, before

a battle or a siege, chants an incantation (_carmen_), the purport of

which is to weaken the loyalty of the enemies’ gods to their worshippers,

and to bring them over to the side of Rome. He bribes them with temples,

offerings, and the honours of a special cult.[227] If the bribery is

effective and the city falls, he must carry out his pledge. The conquered

gods are received at Rome; and their worship is guaranteed by the

distribution of their cults over the patrician clans.[228] The instances

preserved of this _devotio_ and _evocatio_ naturally date from the time

of the Republic.[229] During this period the forms are prescribed by the

pontiffs. But the antiquity of the procedure is beyond question. The

results of evocation on the part of the king, who was his own pontiff,

are manifested in the local worships of the conquered towns of Latium,

which found an early home at Rome.

If we turn from the religious to the civil powers of the king, it is

easier to estimate their extent than to determine the precise modes

of their exercise. Later belief credited him with the sole executive

power of the state. The Roman kings possessed πᾶσα ἀρχή, and exercised

the _imperium_ at their own discretion.[230] Such statements are not

surprising if we remember what is implied in the _imperium_, and that

there appear to have been no legal limitations to its exercise during

the monarchy. _Imperium_ implied the combination of the highest military

and civil authority; it united jurisdiction with command in war, and

it included the further right of intercourse with the people (_jus

rogandi_); while the later restrictions on this power, the limitation of

office by time or by colleagueship, had not yet been created. The king

held office for life, and he had no colleague; for the other officials in

the state must have been mere delegates whom, in the strict theory of the

constitution, he permitted to exist.

But if the king’s power was legally free from restraint, and we do not

believe that there was any large body of _leges_ binding his authority,

it could not have been free from the limitations imposed by custom and

constitutional usage. Customary law securing rights for the people

is said to have been raised to the level of positive law by Servius

Tullius.[231] But even the earlier usages must have formed a kind of

code—such a code as that which contained the pontifical ordinances

known as the _leges regiae_.[232] It was the belief in the existence

of this early customary law which led to the later description of the

king’s power as an _imperium legitimum_.[233] Amongst his constitutional

obligations was that of consulting the Senate in any important matter.

There can be little doubt that the original council of elders (_senatus_)

was a body of nominees selected by the king as his permanent advising

body (_consilium publicum_).[234] In consequence the position of senator

could not have been a life-office; there could neither have been any

definite mode of attaining the dignity, nor any claim on the part of

an individual to retain it. A new king might decline to summon some

of his predecessor’s councillors; he might even, perhaps, change the

_personnel_ of his advisers during the course of his reign. It was in

later times believed that the freedom of selection was so great that no

stigma attached to members who were “passed over” (_praeteriti_) by the

king.[235]

Yet tradition attributes a definiteness to the Senate which is not

consistent with the idea of a purely arbitrary selection. Its numbers at

any given time are fixed, and it is to some extent made representative

of the whole patrician community—for an increase in the number of full

burgesses involved a corresponding increase in the numbers of this

body.[236] The number, originally 100,[237] was raised by successive

steps to 300 before the close of the monarchy.[238] The two obvious units

of representation were the _curiae_ and the clans; but the latter, from

their larger numbers, formed a better basis for reflecting the opinion of

the whole community, and tradition does seem to have imposed a kind of

constitutional necessity on the king of distributing his councillors as

evenly as possible amongst the patrician _gentes_.[239] It was thus that

the distinction between the older and the newer clans was perpetuated

in the procedure of the Senate;[240] but the clan-influence left its

strongest mark by giving a name to the members of the body itself. It was

the leading heads of families (_patres familias seniores_) that the king

summoned; and, in asking their advice, he addressed them as “heads of

houses” (_patres_).

The primitive Senate is credited with two standing powers—the _patrum

auctoritas_ and the initiation of an _interregnum_. Neither of these

prerogatives was directly contemplated by the constitution, and the

Senate never becomes a corporation possessing powers in its own right

until the time of the Empire. Tradition mentions the “authority of the

fathers” as being necessary for the appointment of a new king; it leaves

it to be inferred that it was required for the validity of laws as well,

an inference probably not true of the period of the monarchy. As we

have already explained, it was a legal right only in so far as it was

an extreme instance of the necessity the magistrate was under of taking

advice. Perhaps towards the close of the monarchy, with reference to

the choice of a successor to the throne, custom had made it a standing

prerogative. The _interregnum_ rests on a somewhat different basis; it

was a power which religion enjoined should be in the hands of the whole

patrician community—usage had delegated the power to the patrician

Senate; so here again we have a prerogative which rested wholly on custom.

A privilege only less constant than these was probably the control of

foreign policy. The formula of the Fetiales, which is said to have dated

from their institution during the monarchy, contains the clause: “But

on these matters we will consult the elders at home, how we may obtain

our rights.”[241] It was thus the duty of the king to consult the Senate

in all matters affecting the international relations of the state. For

a declaration of war, perhaps, even this was not sufficient. Tradition

believed that, in this matter, reference must be made to the people

assembled in the _comitia curiata_.[242]

On the other hand, the right of making treaties (_foedera_) with states

could not have been limited in this way. For the treaty made in time of

peace the Senate, and perhaps the people, were consulted; but this could

hardly have been the case with the treaty which closed a war and which

was made on the field of battle. In the Republic there survives a shadowy

and disputed right of the _imperator_ in the field to make a treaty which

shall bind the people. The right was denied, but only on the ground that

the general could not take an oath binding on the public conscience. But

the king was at once general and high-priest; he could doubtless take

this oath even without the assistance of his servants, the Fetiales.

There were other manifestations of the king’s power as general over which

the people would have no control. The disposal of the booty taken in

war and of the conquered lands was one of these,[243] and the statements

which record this right find support in Republican survivals. The control

of the spoils of war (at least of the movable portions) belongs to the

Republican general, subject to the advice of his council of war and

sometimes to subsequent ratification by the Senate. The first condition

may have been necessary in the time of the monarchy, but hardly the

second.

The council of war was a type of the smaller special _consilia_, which

the king doubtless employed to advise him in different branches of the

administration; and such special councils must have been chosen from

the great _consilium publicum_, the Senate. One of the most important

of these was that which furnished his assessors in jurisdiction. That

it became the custom, in the more important cases judged by the king in

person, to employ a _consilium_ of some sort, is stated in the charge

brought by tradition against Tarquinius Superbus that he neglected

this essential guarantee of even justice.[244] In the secular criminal

jurisdiction of the king such a council would doubtless have been taken

from the Senate. In the religious jurisdiction, which we have considered,

the pontiffs would have been the advising board.

Senators also must have been chiefly chosen as delegates of the king,

except, perhaps, those appointed for subordinate command in war;[245]

there military fitness would be chiefly looked to.

The chief of these delegates was the prefect of the city (_praefectus

urbi_), an _alter ego_ left behind in the capital by the king when he

himself was absent in the field.[246] To him must have been delegated

the whole of the executive power, and with it the right and duty of

consulting the Senate. It is not probable that the right of questioning

the people was or could be delegated.[247] In criminal jurisdiction a

distinction was believed to have been made in the cases brought before

the king; the more important were tried by himself in person, the less

important transmitted to judges chosen from the Senate.[248] This may be

the germ of a distinction which is said to have been perfected by Servius

Tullius. Crimes affecting the public welfare he tried himself; wrongs

done to private individuals he entrusted to others.[249]

This principle of delegation is mentioned only in connexion with criminal

jurisdiction. But, whatever its extent, it necessitated the grant by

the magistrate to his delegate of a _formula_ or _lex_, which was the

expression of _jus_. This _jus_, “that which is right or fitting,”

expressed the order of society, as realised through human agency, not

directly through the divine will.[250] It is possible that even in early

Rome it was treated as a right, a faculty of action (_facultas agendi_)

or liberty enjoyed by one man against another, by individuals against

corporations or by corporations against individuals. The differentiation

between the rights of the state and the rights of the individual, always

marked in procedure long before it is formulated in theory, finds

expression in the change which tradition attributes to Servius.[251] But

there was never any clear line of demarcation between the two spheres.

Much of what we call criminal law was at Rome a matter for civil actions

dependent on private initiative, and such actions could in early times

be brought only by the head of the family. But in so far as the early

Romans had a criminal law, in so far, that is, as an offence against the

individual could be regarded as a wrong done to society, this law was a

part of the _jus publicum_.

The king was the sole exponent of this sense of violated right, and

the sole interpreter of the _jus_ fixed by custom or by law. Over the

penalty he probably had little control. It was enjoined in his ruling

and carried out by his lictors; but, in its various forms—death by

the _arbor infelix_ or from the Tarpeian rock—it was fixed by the _mos

majorum_. The trial was a personal investigation (_quaestio_) undertaken

by the king, with the assistance of a chosen body of advisers; and he

might give judgment himself. But sometimes his judgment was conditioned.

He specified the crime under which the accused was to be tried, and

the penalty to be inflicted, but left the finding on the facts to his

delegates.[252] Two such classes of delegates are attributed to the regal

period, the _duumviri perduellionis_ and the _quaestores parricidii_.[253]

There may have been an appeal from the delegates to the king, but

tradition does not credit the king with any power of pardon. Whether

the power of pardon resided anywhere depends on our interpretation of

the trial of Horatius,[254] which was believed to furnish the archetype

of the _provocatio_. From this story appears the belief, which is often

stated by other authorities,[255] that the appeal to the people existed

in the regal period, but one modified by the view that the citizens

had no standing right of appeal against the king such as that secured

against the Republican magistrate by the _lex Valeria_. The king, Tullus

Hostilius, _allows_ the appeal.[256] The early dictatorship was similarly

exempt from the necessity of permitting it, and on one occasion the

precedent of Horatius was appealed to for the purpose of showing that,

as the king had allowed, so the dictator should allow, the appeal.[257]

But the dictatorship is a revival of the _military_ side of the monarchy

with the military jurisdiction which the king exercises over Horatius.

It is quite possible that before the close of the monarchy custom had

established different spheres of criminal jurisdiction for the people and

the king respectively;[258] in some the people might have had a right

to be judges in the last resort, and it is the idea of calling away a

case to another court that is suggested by the word _provocatio_, not

the modern idea of pardon.[259] In other spheres the king could judge

alone; the _provocatio_ here is an act of grace. If, however, we consider

the extent of the military and religious jurisdiction of the king, the

competence of the people must have been small;[260] and the _provocatio_

itself may be a growth of the later monarchical period, the result of

custom, and of a custom based chiefly on the permit of the king.

Civil jurisdiction is said to have been based on the king’s

judgment.[261] How far this royal jurisdiction was personal we cannot

say, but under all circumstances the king was the chief source of

the _jus privatum_, in so far as he and his pontiffs alone knew the

formularies of action,[262] the most precise verbal accuracy in which

was necessary for the successful conduct of a suit. It is probable that

in many cases the king gave merely the formulary of action, that is,

the ruling in law, and then sent the case before a private judge or

arbitrator (_judex privatus, arbiter_), thus illustrating (although not,

perhaps, on the scale recognised during the Republic) the fundamental

division of judicial procedure into _jus_ and _judicium_. This division

of jurisdiction is probably primitive and not, as has sometimes been

thought, a modification introduced by the later monarchy.[263] Even in

Republican times the _judex_ was chosen by consent of the parties.[264]

He was an arbitrator between the litigants agreed to by a mutual

compact,[265] and an outcome of the notion of self-help so prominent in

early Greek and Roman law. But one who knows the forms of action has to

stand by and see that the words of these forms are correctly repeated.

This depositary of _jus_ is the king or one of his pontiffs. Hence

eventually the public official comes to assist at the appointment of the

judge. From this it is but a slight step to give the formula of action

which settles the law of the case, and to leave it to the _judex_ to

decide the question of fact.

§ 6. _The Servian Constitution_

At some period before the close of the monarchy the absurdity of the

existing constitutional arrangements began to be felt. In matters of

private law there was not a single important difference between a free

Plebeian and a Patrician; and large numbers of that portion of the

Plebs which had sprung from clientship were virtually in a condition of

independence. Although their tenure of the soil might be precarious,

their right of acting for themselves in the law courts questionable, it

must have been practically impossible to avoid the appearance of full

ownership where the lord had not asserted his right for generations,

or to prohibit the personal enforcement of claims where the original

patronage had been long forgotten or had lapsed through the extinction of

the patrician family on which the original client had been dependent. It

was, in fact, impossible to say where the class of free Plebeians ended

and that of protected Plebeians began. It was better, for the purposes

contemplated by the impending reform which bears the name of Servius

Tullius, that they should be regarded as on an equality, and that both

classes should make up a single order. The essence of this reform is,

in fact, the recognition of _equality of rights in landed property_.

Ownership of Roman land _ex jure quiritium_ was guaranteed to the whole

plebeian order—probably even to those dependants and emancipated slaves

whose clientship, and therefore whose precarious tenure of the soil, was

patent;[266] and with respect to the rights of _commercium_ the order was

put on a level with the Patriciate.

So far the object of the reform seems to be to confer privileges on

certain classes of the Plebeians. Its real meaning was wholly different.

The intention of the reformer—one which explains the readiness with

which the change seems to have been accepted by the Patricians[267]—was

to impose burdens on the whole plebeian community. A recognition of the

rights of property was a necessary preliminary to the imposition of

taxation and of the full quota of military service. The _patres_, who

welcomed this distribution of burdens, did not foresee that from these

obligations would flow a fresh series of rights which would impair their

monopoly of political power.

The Plebeians were being recognised for the first time as, in a sense,

members of the state. The first problem was the choice of a medium

through which they should be incorporated in it; for simple membership

of a state which was not based on membership of some lower unit was

inconceivable to the Graeco-Roman world. Many of the Plebeians had no

clans; they could not, therefore, be made members of the three primitive

tribes,[268] and when the change was first mooted, it was, probably

for the same reason, thought impossible to make them members of the

_curiae_.[269] New tribes must be invented which should include the

whole community. The chief burden of taxation, now imposed equally on

all classes, was to lie on land. What more natural than that the tribes

should be territorial divisions, so defined as to include all the

territory held in ownership by the Roman people? It is established that

the tribes, which are specially described as local,[270] contained only

that land which was subject to quiritarian ownership,[271] and from this

fact the deduction has been drawn that all land subject to quiritarian

ownership was included in the tribes. As the Servian tribes were believed

only to have comprised the city itself, as enclosed by the Servian

walls,[272] this view leads to the startling conclusion that no land

was held in private ownership outside the city, as its limits were fixed

by Servius—that the land outside, so far as it was not _ager publicus_,

was held by some larger corporation such as the _gens_.[273] But such a

conclusion is most improbable; it was the evolution of private ownership

which had created the rich Plebeian, who had often no clan and could not

hold in common with others, and such a holder was the least likely man in

the world to have land in or near the city, even as its limits were fixed

by Servius.

Consequently if, as seems to have been the case, the tribes did include

all 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]

Roman Public Life · 第 2 / 17 章