THE INTERNATIONAL RELATIONS OF ROME AND THE INCORPORATION OF ITALY
The peoples of Greece and Italy offer, amidst many general points
of similarity, some striking differences in their conceptions of
international relations. The pan-Hellenic sentiment, which created a
shadowy law of nations, has no pan-Italic counterpart. Outside the Greek
city-state there was but the sentiment of nationality to create rules for
human conduct; but, for this very reason, the rules, when created, were
of pan-Hellenic validity. In Italy we get narrower but closer groupings;
its history is the history of leagues, and the inevitable result of this
more concentrated life was a closeness of international ties between the
federated members which stood in marked contrast to the vagueness of the
relations between the isolated groups.
The ties of religion and of ethnic affinity, as expressed in an obvious
similarity of institutions, were, in Italy as elsewhere, the strongest
connecting forces between states; but in Italy they were but the first
rude ligaments that gave place to a stronger political bond and that
crumbled to pieces when the more enduring chain had been forged. The
festival of the Alban Mount became to the Latins, as the sacred centre of
Volsinii to the Etruscans, but the religious symbol of a lasting league.
Beyond the limits of the league the national and religious sentiment was
weak. There was no Delphi to direct the Italian peoples, and no Olympia
at which they might meet.
This isolated grouping of the Italian peoples may have been partly due to
the great mixture of the populations of Italy south of the Alps and south
even of the Apennines; but the earliest Italian history reveals the fact
that even the closely-related races of Latins, Umbrians, and Sabellians
were not connected by much closer ties of an international character
than those which bound each to the Etruscan, the Iapygian, the Gaul,
and the Greek. It is true that with the progress of time something like
an ethnic sentiment was created in the purely Italian group, with vast
consequences to the history of the world. After the Umbrian power, which
had once extended from sea to sea, had been weakened, on the left by
the Etruscan, on the right by the Celt, Rome becomes the great frontier
power, the bulwark of the group of blood-related nations against the
foreign-speaking Tuscan and the Gaul whose kinship with herself she had
forgotten; but the relation soon became political, and, therefore, more
than international. That aggregation of vague human sentiments, which is
called International Law, was not juristically stronger within the sphere
of the blood-related than it was within the sphere of the Italian group
of peoples.
Within this wider sphere of humanity, that was not yet “Italian,”
there are traces of the observance by Rome of customs relating to the
conduct of war and to negotiations for procuring peace—customs which
by their very existence show that, though the early Roman employed the
same word to designate the stranger and the enemy, a state of war was
not considered as the permanent relation even between _hostes_; which
prove, by their elaboration, the antiquity of some sense of international
obligation, and which exhibit, by the constancy with which they were
applied, the existence of reciprocal forms and duties owed by the
hostile state to Rome. The functions of the _Fetiales_, the priestly
ambassadors (_oratores_)[1386] who demand reparation, declare war and
ratify a peace, seem never to have been confined to those peoples with
whom Rome had treaty relations, but to have been extended to any nation
which had not by specific acts waged war on Rome. Four of the priestly
guild of _Fetiales_ were appointed to seek redress. These elected one
of their number to become their representative, to be for the time the
“ratifying father of the Roman people” (_pater patratus populi Romani_).
At the borders of the offending tribe the _pater_ with many imprecations
called Jupiter to witness that the grievance was established, the
demand reasonable. Three times did he make the same appeal—to the first
sojourner he met in the stranger’s territory, to the sentinel at the
gate, and to the magistrate within the walls. Thirty days were allowed
for the reply; on the first of these the standard was hoisted on the
citadel of Rome, and the burgess army gathered for the threatening war.
If an appeasing answer were not returned within these days of grace, the
_pater_ again set forth and launched a charred spear (the prehistoric
weapon of hardened wood) into the territory of the offender, with words
setting forth the menace of war.[1387] When the struggle was over it was
he who struck the peace and the sacrificial victim with a flint-stone
which symbolised the watchful Jupiter (_Jupiter lapis_).[1388] The
sanctity of envoys, other than these priestly messengers, was as
rigorously observed in the Italian as in the Greek world. A violent death
on an embassy was a martyrdom deserving of immortality, and the ancient
Rostra in the Comitium showed a group of statues erected to those who had
met their fate in the cause of peace.[1389] The neutrality of ambassadors
was exacted with equal care, and the disaster of the Allia might be
looked on as a retribution for the impious precipitancy of the Fabii who,
forgetting their sacred character, fought in the ranks of Clusium against
the Celtic hordes.[1390]
In the agreements made by generals and envoys with a foreign people, the
idea, common to most primitive minds, that it is the oath which makes
the promise binding is strikingly present. We have already touched on
the vast constitutional import of this conception in its connexion with
the question, posed but never completely answered by the too patriotic
jurists: “Who could take the oath on behalf of the Roman people?” But
the theory which on the whole prevailed, that it could not be taken
by a general in the field, not only nullified the promise so made and
rendered it a mere agreement (_sponsio_), valid between citizens but
not between strangers, but exposed the rash swearer to the extremest
penalties. With a strange inconsistency of judgment it was held that the
oath, which was no oath, laid the guilt of perjury on the conscience of
the people, unless the man who had caused the people unwittingly to
sin was offered up as an atoning sacrifice. Naked and bound, like the
sacrificial human victim of prehistoric times prepared for the altar, the
_imperator_ was surrendered to the offended people. It is not surprising
that the latter—whether Samnites, Spaniards, or Numidians[1391]—refused
to take the worthless gift from the hands of the _pater patratus_, and
preferred to continue the conflict with a people still convicted of sin.
The individual oath to return, made by a prisoner of war released on
parole, though binding on his soul alone and, as a religious obligation,
not punishable by the civil arm, was enforced by the public conscience.
One—others said more than one—of the Roman captives sent by Hannibal
after Cannae to negotiate an exchange of prisoners declined to return
on the negotiations falling through. The pretext was that they had
revisited the camp of the conqueror _after_ the oath had been taken.
Tradition varied as to the punishment imposed by Rome; some spoke of a
summary arrest and enforced return to the Phoenician camp, others of a
degradation by the censor and of a public detestation that drove the
perjurer to suicide.[1392]
Such are some of the isolated specimens that have been handed down to
us of rules of international right which Rome thought due to every
nation. But, apart from such universal duties, the Roman mind, with its
simple dichotomy of the world into enemies (_hostes_)[1393] and friends
(_amici_), recognised varying degrees of obligation as due to either
class. The _hostes_ were all states or individuals with whom Rome had no
treaty relations. With these there was no presupposition even of constant
diplomatic relations, and their absence was symbolised by the manner in
which envoys from such states were received. The tradition of “speaking
with one’s enemy in the gate” was rigorously preserved to the end of the
Republic, and the Senate had to meet a messenger from the enemy outside
the walls.[1394] The friends of Rome were those with whom she had any
relations that approximated to a federative character. There might be no
definite treaty, no specified interchange of obligations; but the vague
term _amicitia_ with kindred titles of affection was applied to the
vaguest association as well as to the closest alliance with Rome; it was
indifferently a symbol of the greatest independence or of the practical
subjection of the contracting state. The members of the military symmachy
in Italy could share this title with distant Carthage,[1395] and even the
barbarous Aedui are “kinsmen and brothers” of the Roman people.[1396]
Even in the case of these communities the perpetual representation of
mutual interests by means of permanent ambassadors—an institution still
in its infancy in the seventeenth century of our era—was naturally
unknown; but their recognition as friends granted their envoys or
representatives an entrance and an audience of the Senate within the
walls.[1397]
Closer relations between Rome and her “friends” were generally
conditioned by ethnic and their corresponding religious ties. But the
foreign element in early Rome shows that this was not universally the
case. The rape of the Sabine women in its least significance reveals
the fact of the close tie of intermarriage between Rome and a non-Latin
community; the first treaty with Carthage reveals commercial relations,
which were accompanied by some form of international jurisdiction, with a
Phoenician power.[1398]
The first, because the most universal, ties which attract our attention
as based on treaty relations are those of commerce. Commercial treaties
with the foreigner led, in the very infancy of Roman history, to the
development both of common courts and of a common code.
In the later Republic and in the Empire we have frequent mention of a
civil court which was believed to have had an international origin.
Attempts have been made to assign to this court of _recuperatores_ a
purely Roman source;[1399] but its essential peculiarities—the large
uneven number of jurors, three or five, when the ordinary civil courts
knew but one; the rapidity and simplicity of the procedure; the _formula_
framed by a magistrate and not taken from the _legis actiones_ of
the civil law—are best explained as survivals of a time when it was a
mixed court of international jurisdiction.[1400] The two or four jurors
probably represented the contracting states in equal proportions, the
third or fifth may have been an arbitrator chosen from another community;
the magistrate who gave the _formula_ would have been an official of the
town in which the mixed court sat.
But the _formula_ implied a system of legal principles, and these
could not easily be furnished by the civil law (_jus civile_) of each
contracting state. It was not Roman pride that prevented the foreigner
from participating in her native law; it was the unwillingness of the
foreigner to be made subject to a code characterised by excessive
cumbrousness, by danger and by delay, and the counter-objection of the
Roman to be the victim of similar disadvantages in the contracting state.
No merchant, to whom time meant money, would adopt the cumbrous form of
conveyance known as the _mancipatio_, when ownership could be acquired
by the simple transfer (_traditio_) known of all nations; none would
care to repeat a _formula_ (to be learnt only of the Roman pontiff),
the least error in the utterance of which was sufficient to extinguish
his claim; and the symbolic acts performed before the praetor, though
possibly dear to the Roman mind, could not have been attractive to the
foreigner. Convenience dictated a compromise, and this was found in the
gradual collection of a body of rights (_jus_) from the customs of “the
world” (_gentes_) as known to the Romans. This _jus gentium_, or body
of rights possessed by man as a citizen of the world, was a code of
private international law, and it cannot be regarded as being even purely
Italian. A nation that borrowed its alphabet from a Chalcidian city, that
imitated the military organisation of the Hellenes, that traded in the
sixth century with Sicily, Sardinia, Libya and Carthage, must have been
deeply imbued with the customs of the Greek and Phoenician world. Nor was
this code a growth of Rome’s supremacy, for her commercial preceded her
political greatness. Its origin dates back to a time probably anterior
to the Republic, certainly far earlier than the institution of the
praetorship. We have already noticed how for more than a century the
same civil judge administered both laws, that of the state and that of
the _gentes_,[1401] and how the _jus civile_ was insensibly modified by
contact with its younger relative.
But closer relations than those of commerce might exist between Rome and
states connected with her by neighbourhood or kindred. The interchange
of the rights of private law, of ownership and of marriage, which the
Greeks called ἰσοπολιτεία, was a natural out-growth of the Italian
tendency to close political association. Such communion rendered each
member of the contracting states in private law a _civis_ of the other;
the _conubium_ carried with it the _patria potestas_ and all the family
rights that flowed from this power; the _commercium_ allowed the citizen
of the contracting state to own Roman land, to convey property by Roman
forms, to make a contract by the ceremonial of the _sponsio_, to inherit
from a Roman or to make a Roman his heir, while it gave the citizen of
Rome corresponding rights in the alien city. There could be no question
here of mixed tribunals or of private international law. The courts of
each state were fully competent; if we may judge from the early relations
of Rome with the Latin cities, the place in which the contract had been
concluded, or, in other words, the forms of the contract, determined the
competence of the court.[1402]
Still more definite bonds of union than these relations of private law
(although often their primary condition) were certain political creations
which made the ties between the states something more than international.
It was a nucleus approaching a federal government which gave the first
impulse to the extension of Roman power in Italy. Rome, as known to us in
legend, is never quite a city-state. She is an offshoot of Alba Longa,
the titular head of the Latin league. Tradition says that her conquest
of her mother city led to her occupying a singular position with respect
to the thirty cities of this league. She was one of the contracting
parties, the cities were the other; she was the equal, not the member,
of the group. The acceptance of this position by the confederate cities
shows their eagerness for the protection of the frontier town; but
the protectorate became burdensome, a war ensued, and Roman rule was
shaken off only to be reimposed on firmer lines by the strong hand of
the Etruscan dynasty represented by the Tarquins. Rome now became one
at least of the religious centres of the league, and the Diana of the
Aventine symbolised the lasting union of the Latin folk.[1403] The
expulsion of the kings, while it stripped Rome of territory, shook for
a time the allegiance of the league, and it was not until 493 B.C. that
the old conditions were renewed; for the details that might in historical
times be read in the treaty attributed to Sp. Cassius were doubtless but
a replica of the old terms of the alliance. Eternal peace was enjoined,
mutual support was to be given in war, and each contracting party was
to share equally in the booty. The supreme command in war was to be
held now by the Roman general, now by the commander of the confederate
forces.[1404] But the closest bond was that of ἰσοπολιτεία,[1405] the
mutual participation in _commercium_ and doubtless also in _conubium_,
which was accompanied by the proviso that the court of the state,
in which the contract had been concluded and the case was therefore
tried, should give speedy satisfaction to the claimant from each
community.[1406] Reciprocity such as this was naturally accompanied by
freedom in choice of domicile. The Roman settled in the Latin city and
the Latin in the Roman retained the private rights of both communities.
It is doubtful whether at this period the transference of residence was
accompanied by a share in the voting rights of the state in which the
immigrant sojourned.[1407]
To this association a third factor was soon added in the Hernican
league.[1408] The extension of the confederation beyond its ethnic limits
was a grand strategic move; for by the inclusion of the Hernici, Rome now
presented a compact chain of fortresses against her enemies of the east
and south, the Aequi and the Volsci. Their military importance explains
why the newly admitted members were raised to the level of the older
allies. They boasted the same reciprocity of private rights with Rome,
they shared in a third part of the spoils of war, and they joined with
Romans and Latins in the work of common colonisation.
This colonisation was at once a military and social measure, and the
means by which the league extended its geographical and political limits.
The custom of war, which permitted the Italian tribes to annex a third
of all conquered land, had ever been used as a means of expansion by the
powerful league. And this expansion was a very real one; for the Latin
colonies (_coloniae Latinae_), as they were called, were full members
of the society that gave them birth. Such towns as Suessa Pometia,
Cora, and Velitrae had been military outposts in the territory of the
Volsci; and now the Volscian, the Rutulian, and even the Etruscan were
oppressed with the weight of new foundations by the three great powers.
But the year 384 seems to mark a strange and unaccountable break in the
history of this extension. Of all the Latin colonies founded after that
date, but one is mentioned as a member of the confederacy—a circumstance
which has led to the conclusion that Rome (whether with or without the
consent of the other members) had cut off all future joint foundations
from the religious and federal privileges of the league. Otherwise
the consequences of this exclusion were not great; the new towns were
military allies of the league, not of Rome, and their citizens still
possessed those private rights which always remained of the essence of
_latinitas_. Forty-seven cities—partly old Latin towns, partly Latin
colonies earlier than 384—still participated in the Latin festival;
that within this circle a distinction was drawn between thirty voting
and seventeen not-voting members is an insecure conclusion based on
the attempts of the annalists to reconstruct the traditional number of
thirty Latin cities; there may still have been thirty votes, but these
may well have been distributed in some way over the forty-seven cities
of the league. That the closing of the Latin confederacy was due mainly
to Roman pressure is perhaps shown by the series of dangerous revolts
amongst its cities, which often sided with their ancient enemies the
Volsci. The Hernicans were as eager to shake off the yoke; but Rome
emerged from both crises with her power strengthened and her commonwealth
enlarged. The latter result was due to a renewed employment of her old
device of absorption. Tusculum in 381, and Satricum not long afterwards,
had their commonwealths destroyed, and were forced, as a penal measure,
to accept the full or partial Roman citizenship.[1409] At the close of
the struggle in 358 the leagues were renewed and the relations of Rome
with the two groups of states remodelled, probably on harder terms. In
the Samnite war which followed, the Latin cities first clung to Rome,
for they preferred a native to a Sabellian hegemony; but Rome’s rapid
conclusion of a treaty of peace and alliance with the Samnites, which
the league was asked to accept and not to ratify, was taken as the final
proof of actual subjection concealed under the name of a hegemony. The
Latins made their last demands; they gave up their position as a military
confederacy, but they did not wish to be absorbed into the body politic
of Rome. They asked for the golden mean—a system of federal government,
but one that should still preserve the fundamental distinction between
Rome and the confederate cities. One of the consuls was to be a Roman,
the other a Latin, and half the Senate was to be chosen from Latium. But
the civic feeling was too strong at Rome; she would not herself surrender
the communal constitution which she had so often wrested from others;
she rejected the alternative which would have paralysed her power as a
conquering state and made of her but a federal capital. Her “No!” to the
Latins was one of the turning-points in the history of Italy and of the
world.
The battles of Veseris and Trifanum gave her the victory, but she was
sorely puzzled as to the use to be made of it. The league was to be
broken up, its members isolated, and this work of disintegration was
carried through with thoroughness; not only were the federal assemblies
(_concilia_) abolished, but no right of intermarriage or of commercial
intercourse (_jus conubii et commercii_) was permitted between the
cities.[1410] But how to deal with the individual communities was a
far harder problem. The incorporation which had been the punishment of
isolated revolt could not be applied to the _disjecta membra_ of a whole
league, for it would have changed the city-state into a nation. Hence
the plan adopted was a compromise between the old policy of absorption
and a new principle—that of alliance. Aricia, Pedum, and Lanuvium
lost their independence and received the full Roman franchise; while
Tibur, Praeneste, Lavinium were compelled to conclude separate treaties
(_foedera_) with Rome, and formed the nucleus of the ever-growing class
of _civitates foederatae_. Thirty years later (306 B.C.) a similar fate
befell the remaining league of the Hernici. Their loyalty had not stood
the test of the second Samnite war; but there were degrees of guilt
amongst the cities. Anagnia, the chief centre of the revolt, and other
incriminated towns, were given merely the private rights of citizenship;
the full citizenship was indeed offered to the three loyal towns of
Aletrium, Ferentinum, and Verulae, but, on their expressing a preference
for their own local constitutions and codes, they were permitted to
retain an autonomy guaranteed by separate treaties.[1411] The break up
of the Hernican league was only an incident in a triumphant career of
conquest that was never followed by annexation. The Samnite wars and
the struggle with Pyrrhus had ended in the acknowledgment of Rome’s
supremacy by every nation south of the Macra and the Rubicon. The three
civilisations of Greece, Tuscany, and Italy furnished her indifferently
with allies; the town and the tribal union were alike represented in her
symmachy. Tibur and Praeneste in Latium, Aletrium and Ferentinum amongst
the Hernici, Volaterrae and Clusium in Etruria, Iguvium in Umbria, the
Picentes, Marsi, and Peligni amongst the Sabellians, and Greek cities
like Neapolis in Campania or Rhegium amongst the Bruttii, are types of
the states and peoples that she numbered amongst her _socii_.
The effect of this unification, and of the tendencies which had preceded
it, was to divide the inhabitants of Italy into two broad classes—those
of citizens (_cives_) and those of allies (_socii_) of Rome. The first
class (far the smaller numerically) represented the earlier effort at
incorporation; the second was the consequence of the later policy
which founded a military league. Minuter distinctions of rights, which
necessitate cross-divisions in the classification of the states,
sometimes obscure this fundamental analysis; but it was never lost sight
of and was the guiding light to the Roman lawyer, as it is to us, in his
path through the labyrinth of the complex organisation of Italy.
The _cives_ of Rome bear this name either in a full or a partial sense;
they may be citizens with voting rights or citizens in private law alone
(_cives sine suffragio_). If we fix our attention on the first of these
classes, we find that historically there were two modes in which the
_civitas_ was gained by a commune outside the city. It might be due
to the incorporation of an already existing state, or it might be the
consequence of the planting of a Roman colony. The merging of some of
the Latin communities in Rome[1412] has already furnished instances of
the former mode of conferment; the Roman colonies which illustrate the
second (_coloniae civium Romanorum_) were outlying fragments of the
Populus, planted as a defensive garrison on the third of the conquered
land, which was the legitimate spoil of the invader. A social was from
the first combined with the military object; but the enforced exodus of
portions of the burgess body on some occasions[1413] proves that, in this
form of colonisation, the interest of the state came before that of the
individual. It was, in fact, a military levy ordained by law, although
voluntary profession usually took the place of the compulsory summons of
the regular _dilectus_. In military array, with standards flying,[1414]
the squadron marched to the appointed place under the leadership of the
commissioners appointed by the people. When a new town was to be founded,
or an old one reconstituted, it was done with the imposing ceremonies
that marked the birth and enlargement of Rome. After the will of the gods
had been tested and happy omens gained, the commissioners, with veiled
heads and loins girt up, guided a plough, to which were yoked an ox and a
cow. They thus drew the _pomerium_ of the state, only staying the furrow
where the gates of the city were to be.[1415] The greater number of these
settlements of Roman citizens were for the protection of the Italian
coasts, and the members of the maritime colonies (_coloniae maritimae_)
were allowed exemption from active military service.[1416] Few in numbers
(often but a handful of 300 men), and settled in an already existing
political society, the colonists formed a privileged patriciate amongst
its older members. The town-council, and such subordinate magistrates as
Rome allowed them to possess, were probably chosen from the new settlers
alone; but, as the autonomy which they enjoyed was not great, as they
possessed no high judicial magistrates of their own, and as their voting
power at Rome was more a potential than an actual right, they differed
little from the native inhabitants, who as _cives sine suffragio_
came equally under the jurisdiction of the Roman courts and their
representatives.
Whether the commune of Roman citizens had had a natural or artificial
growth, it was never in early times a true state (_civitas_). Roman law
knew of ἰσοπολιτεία, but not of the closer bond of συμπολιτεία; and
the principle that no Roman citizen could be a full member of another
state, although in the later Republic it had given place to the theory
of the municipal independence of the _civis_ was always maintained in
international relations with states of the outer world.[1417] As the
negation of state life implied the negation of communal independence,
we are not surprised to find that none of these communities of Roman
citizens possessed a true civic organisation of its own. We cannot
define the rights of their town-councils, we cannot assert the absolute
non-existence of popular gatherings for certain purposes; but the absence
of the _imperium_ and of a true judicial magistracy is clearly discerned.
These communes fell under the immediate civil jurisdiction, originally
of the consuls, later of the _praetor urbanus_. Originally it may have
been necessary for every case not settled by voluntary arbitration
to be brought to Rome, but the distance of some of these towns from
the capital would have soon rendered this principle of jurisdiction
impossible. The modern solution, that the judge should go on circuit,
could not be thought of in a state where the bench consisted of a single
man, and where this individual was prohibited by law from leaving the
city for more than ten days during his year of office.[1418] The only
alternative was furnished by the favourite Roman device of delegation.
The praetor nominated praefects for jurisdiction (_praefecti juri
dicundo_), and these were sent, sometimes as standing magistrates,
sometimes perhaps as mere circuit judges, through the Roman towns, which
were thence known as _praefecturae_.[1419] Delegation implies either a
division of competence or, in the case of the lower court possessing full
jurisdiction, an appeal to the delegating authority. There is no trace
of the latter practice at Rome, and a systematic division of authority,
although motives of convenience may sometimes have led the praetor to
permit it, is inconsistent with the Roman idea of jurisdiction flowing
direct from the _imperium_. Possibly the praetor permitted the praefect
to regulate almost every kind of contentious jurisdiction, subject to
his own right of summoning any case he pleased from the delegate to
Rome. By a legal fiction the courts of the _praefecturae_ were held
to be within the praetor’s sphere of competence, i.e. within a single
milestone of the city; they were, to use the technical Roman expression,
_judicia legitima_. No trace whatever has been preserved of the criminal
procedure applied to such communities. The fact that the praefect was
the delegate of a civil magistrate would not prove that he was incapable
of exercising criminal jurisdiction, for _jurisdictio_ of every kind is
latent in the praetor’s _imperium_. All higher jurisdiction was reserved
for the people; but there was only one _populus Romanus_, that of the
city of Rome. Hence when the citizen of Ostia or Tusculum was accused of
an offence, the penalty for which demanded a popular sanction, we may
assume that he could either make the appeal, through a fiction like that
underlying the civil jurisdiction, in spite of his local separation from
Rome, or that he stepped, or was brought within, the first milestone of
the city, the limit inside which the _provocatio_ could legally be made.
The second type of _cives_ are those without the right of suffrage (_sine
suffragio_). There can be little question that the idea of this _status_
was derived from Rome’s relations with the cities of the Latin league; in
her process of absorption, however, she conferred it on towns to which
she did not grant the other typically Latin rights; in this way she
made of it an independent _status_. The Etruscan town of Caere is said
to have won this right in 353 as a gift for good service to Rome. After
the dissolution of the Latin league in 338 B.C. a group of Campanian
townships, Capua, Cumae, Atella, and Calatia, were with (the then Latin)
Fundi and Formiae brought into this relation with the now dominant city
of Latium;[1420] others nearer home, such as Arpinum of the Volsci, were
similarly rewarded or absorbed (303 B.C.),[1421] while the _status_ was
imposed as a means of degrading and reducing to impotence rebellious
townships such as Anagnia, the leading city of the Hernici.[1422] The
motive of the conferment, although it might make a difference to the
rights of the towns, produced none in the relations of their respective
_cives_ to Rome.
The _civis sine suffragio_ was known as a _municeps_, and the state, all
of whose full members enjoyed this _status_, derived from its occupants
the name of _municipium_. The name of this type of citizen—the “taker up
of burdens”—aptly expresses his subjection to the chief duties (_munera_)
of Roman citizenship, such as service in the Roman legions, forced
labour in raising defences, the payment of the war-tax (_tributum_),
and his exclusion from the usually corresponding rights of suffrage and
of office;[1423] it emphasises the fact, strange to the early Roman
mind, of public duties not balanced by public rights, but it contains
no implication of the strangest characteristic of the _municeps_—one
almost unknown in ancient legal systems—the possession of a personality
in private which is not the result of a personality in public law.
The _municeps_ possesses _commercium_ with all its consequences; he
possesses _conubium_ with Rome; he is, from the point of view of private
law, in every sense a citizen.
This possession of citizenship carried with it as a necessary
consequence his subjection to the praetor’s court. His home, the
_municipium_, is therefore, equally with the community of full Roman
citizens, a _praefectura_, and the rules of jurisdiction were the
same in both classes of states. To the praefects nominated by the
praetor were in course of time added others elected by the _comitia
tributa_, and reckoned amongst the minor magistrates known as the
_viginti-sex-viri_.[1424] These latter were the four praefects of Capua,
Cumae, and the Campanian coast; but, in regard to the mode of election,
there is no difference discernible between the judicial magistrates of
the _municipia_ and those of the communities of Roman citizens. Elected
praefects visited the _municipium_ of Capua and the Roman colony of
Puteoli, while nominated praefects held their court in the colony of
Saturnia and the municipal town of Anagnia.[1425]
But the praefect was far from representing the higher functions of
government in every _municipium_. These towns fall into two broad
divisions, not according to the rights which they receive, but according
to the rights which they retain. The _civitas sine suffragio_ might
be granted _honoris causa_ to a state which maintained its complete
independence or its communal autonomy. It was thus conferred on Capua,
Cumae, Formiae, and Fundi,[1426] and the gift of the partial citizenship
under these conditions was a valued privilege. It enabled a Capuan to own
Roman land, to settle on the _ager publicus_, to marry into the noble
houses of Rome, and to serve, not in the auxiliary cohort, but in her
army or in the legion raised from the _municipes_. But meanwhile his own
magistrate, the _meddix tuticus_, administers in the Campanian courts
the native Sabellian law,[1427] his senate deliberates, and his popular
assembly decides. Sometimes, as in the case of Capua, the state is still
bound by treaty relations to Rome, and the two conflicting principles of
armed alliance and of absorption are for once commingled.[1428]
Yet, in spite of their independence, there is every reason to believe
that the inevitable praefects visited these states. We must assume, at
least in the cases where autonomy reached the grade which is visible
in Capua, that a dual system of law prevailed in these communities;
the court and the procedure would follow the form of contract, whether
Sabellian or Roman, and the parties might appear indifferently before
the Capuan _meddix_ or the Roman praefect. In other cases, where a large
measure of administrative autonomy is visible, but where no magistrate
with a higher rank than that of aedile is found within the state,[1429]
it is possible that Roman law alone prevailed and that the Roman praefect
was the only judge.
The lower class of _municipia_ was represented by states “whose whole
commonwealth had been merged in that of Rome.”[1430] Of this class
Anagnia, the degraded town of the Hernici, was a type.[1431] Stripped of
all the active rights of citizenship, and under the direct government of
a Roman praefect, the members of such towns possessed no personality in
public law at all. Their position was that of the free Plebeians previous
to their admission to the _suffragium_ and the _honores_.
The second principle in Rome’s Italian policy, first projected after the
close of the Latin war and carried to its completion after the struggle
with Pyrrhus, resulted in a great military hegemony over states, whose
treaty relations enabled them to call themselves the “allies” (_socii_)
of Rome. Collective names were soon devised to indicate the closeness of
the union thus formed; at first the confederates were “wearers of the
toga” (_togati_), a name that applied equally to the Latin, Sabellian,
and Etruscan. But the introduction of the Greek _pallium_ into the league
destroyed this basis of classification; and the later term _Italici_ was
evolved, a word whose geographical signification emphasises the idea of a
territorial limit to certain rights—one which, as we shall see, was not
rigorously preserved, but which marks the distinction, valid alike for
the Republic and the Principate, between Italy as the privileged and the
provinces as the unprivileged world.
The condition of a conquered town, whether in Italy or the provinces,
before its alliance with Rome, is described by the word _deditio_, a term
which implies absolute surrender to the power (_ditio_, _potestas_)[1432]
or to the honour (_fides_)[1433] of the Roman people, the two latter
expressions being to the Roman mind legally equivalent.[1434] Such
a _dediticia civitas_ is in the negative condition of an absolute
suspension of rights, and remains in this case until some are given back
by Rome with a guarantee of their permanence. _Deditio_ is, therefore,
a temporary _status_, although it might be occasionally prolonged as a
penal measure, as it was in the case of the revolted Bruttii after the
Hannibalic war.[1435] In Italy, as a rule, the terms that Rome dictated
were those of a military alliance, the conditions for membership of this
being, firstly, external sovereignty (_libertas_), as conditioned by the
terms and objects of the league;[1436] secondly, internal independence—a
condition which the Greek cities called αὐτονομία, and which, in a
Latin charter to a provincial town, appears in the form of the permit
_suis legibus uti_;[1437] thirdly, a basis for these rights, as also
for the obligations which these states owed to Rome. In dealings, with
the extra-Italian world this basis was either a charter (_lex data_),
given by the Roman people and revocable by them, or a treaty (_foedus_),
equally sanctioned by the people but irrevocable, as being sworn to by
the two contracting parties; its revocation could only be the consequence
of a genuine _casus belli_. In the first case the state is a _libera
civitas_, in the second a _libera et foederata civitas_,[1438] or, in its
more general and briefer designation, a _foederata civitas_.[1439] In
Italy positive evidence furnishes us only with the _foederatae_, but the
existence of the _liberae civitates_ must be assumed, since, immediately
on the beginning of provincial organisation in Sicily, this _status_ is
adopted.
In Italy also there was doubtless the distinction between the higher and
the lower kind of _foedus_—the _foedus aequum_ and the _foedus iniquum_.
In all treaties concluded between Rome and cities in her symmachy there
was a recognition of partial dependence in the latter; but some of these
treaties contained a “suzerainty” clause to the effect that the state
in question should “in a friendly spirit respect the majesty of the
Roman people.” This clause did not diminish the _libertas_ of the state
accepting it, but merely strengthened the position of Rome.[1440] It was
a characteristic of the _iniquum foedus_.[1441]
The duties of the federate cities expressed in their name (_socii_,
σύμμαχοι) were primarily the furnishing of requisitions whether in men
or ships. The latter were demanded from the Greek cities of the coast,
but Italy as a whole furnished the auxiliary land armies of Rome, the
_togati_ liable to the levy.[1442] Every state had to keep a register
of its effective strength in accordance with a principle of assessment
(_formula_).[1443] The general demands of Rome were specified in the
treaties; the special levies required at any given time were dictated by
the Senate and consuls.[1444]
Military requisitions necessarily involve pecuniary burdens. But these
were all indirect. Each city had complete control of its own finances; no
tribute was imposed by Rome, and the antithesis to the _socius_ is the
_stipendiarius_.[1445] This immunity was originally based on the theory
of treaty relations; later, when the view had grown up that the tribute
paid by the stipendiary states was the result of their precarious tenure
as _possessores_, the Italians were held to be owners of their land. The
_jus Italicum_ of the Principate confers on any state to which it is
granted quiritarian ownership, and, therefore, immunity from taxation on
land.
Enjoyment of their own laws and control of their own courts were other
symbols of the autonomy of the allies. Rome could not legislate for the
Italian _socii_, and they were beyond the judicial authority of the Roman
magistrate in Italy.
But the necessities of social and commercial intercourse rendered it
advisable that the Italian allies—more especially the Latins—should be
brought into close legal relations with Rome, and the acceptance by
the latter of innumerable civil laws of the central state is attested
by Cicero.[1446] The Italians are known to have been bound by a
_plebiscitum_ concerning loans[1447]—this, however, only made contracts
of a certain kind between them and Romans invalid, and may not have
demanded their consent; but their formal acceptance must have been
required for the Didian law, which extended the sumptuary regulations of
the _lex Fannia_ to all the _Italici_.[1448] The “free” as well as the
“federate” city has the right to accept or decline a legislative proposal
put before it by the Roman government.[1449]
Closest of all to Rome were the Latins. As members of federate cities
they were amongst the _socii_,[1450] and it is only as a class with
special privileges that they are distinguished from the latter.[1451]
_Latinitas_ had, through the efforts of colonisation, long lost its
geographical and ethnic significance. It was the name for a _status_
often accepted by Roman citizens, which combined the anomalies of
sovereignty and a partial Roman citizenship. The sovereign rights are
those possessed by the _socii_, the civic privileges were originally
those held by the _municipia_; but it is possible that on and after
the foundation of Ariminum and the last twelve Latin colonies[1452]
_commercium_ alone was granted, _conubium_ refused.[1453] The
most distinctive privilege of the Latin had been the concession of
facilities for acquiring Roman political rights. A Latin who migrated
from his town and became a domiciled immigrant (_incola_) of Rome had
retained his civic rights in private law, and gained a limited power
of suffrage.[1454] He could even by complete expatriation (_exilium_)
surrender his own _civitas_ and attain the full Roman citizenship.
But the conditions subsequently imposed on this right[1455] were
evaded, immigration continued unchecked, and there was a danger of the
depopulation of the districts from which the exiles came. This evil
suggested the later method, which gave the Latins admission to the
_civitas_. The holder of a magistracy in his native town was, by the mere
fact of his position, to become a full citizen of Rome. It is improbable
that this right replaced the right of exile possessed by already
existing Latin towns, and the date of its origin is unknown; but it
possibly accompanied the remodelling of Latin rights in 268 B.C., and is
henceforth the typical privilege of the Latin colony.[1456] Another mode
in which the individual Latin could acquire the Roman _civitas_ was by
conducting a successful prosecution under the Acilian and Servilian laws
of extortion.[1457]
The freedom of the cities, whether Latin or Italian, seems to have won
rigid respect from Rome and her magistrates. The burdens of military
service were, indeed, unevenly distributed between the central city and
her allies,[1458] while the spoils of war were mainly for the Roman. But
it was a shock and a surprise when in 173 B.C. a consul made personal
requisitions on the federate city of Praeneste.[1459] The lesson once
learnt was only too faithfully followed, and the illegal demands of Roman
officials were accompanied by acts of capricious violence.[1460] But
the burden of service and the misuse of power were not the only motives
urging the allies to seek the _civitas_ of Rome; nor was it merely a
sentimental desire to be invested with the Roman name. The citizenship
had a positive value both as a protection and a source of gain. The
protection against capital or corporal penalties tacitly accorded to
Romans by provincial governors could not be claimed by the allies, and,
although there is no evidence that Rome, in her final organisation
of the Italian confederacy, continued her early policy of inhibiting
_commercium_ between the towns, yet citizenship had a commercial value.
Ownership of land in the provinces was protected by the praetor and the
proconsul, but only when it was held by a Roman. To the Roman trade with
the barbarian was secure, to the Italian precarious; and everywhere
he had to face the competition of the commercial companies of Roman
knights. The grounds of interest coincided with those of sentiment
in producing a demand which the progressive party amongst the Romans
strove to meet. The first attempt was made through a law of the consul
Flaccus in 125 B.C.,[1461] the second by one of C. Gracchus in 121, the
latter law probably offering citizen rights to the Latins and Latin
rights to the other allies.[1462] The final proposal of Livius Drusus
in 91 was probably an unmodified extension of the _civitas_,[1463] and
it was the failure of this measure that led to the Italian revolt.
A new suggestion for a solution of the problem of the relations of
Rome to Italy sprang from the organisation of the hostile states. A
federal capital, Corfinium, now Italica, was created, and a provisional
federation of eight states formed, one which was intended ultimately
to embrace the whole of Italy. The Roman, or rather Italian, pattern
was followed in the new constitution; it possessed two consuls, twelve
praetors, and a senate of five hundred;[1464] but both the magistracies
and the senate were of a federal type. The issue of the war was to
determine whether Rome should remain the leading state or become a mere
member of an Italian confederation, although the unlikelihood of the
giant city’s settling down to this position may have appealed to some
of the federal leaders.[1465] Unless a redistribution of territory and
population had been effected, Rome would have been the Thebes of the
league, and the fate of the Empire would have been in suspense, for a
federal government’s capacity for imperial rule had yet to be tested.
By timely concessions Rome saved her position as the head of the
confederacy. By the _lex Julia_ (90 B.C.) all the Italian states that
had not revolted were offered the _civitas_,[1466] and this was followed
by the _lex Plautia Papiria_ (89 B.C.), which offered the _civitas_ to
the _socii_ and _incolae_ of the allied cities in revolt.[1467] These
measures effected a considerable extension of the citizenship, but
other means, of which we are ignorant, must have been adopted for the
gradual incorporation of communities, many of which still remained for a
considerable time in rebellion against Rome.[1468]
The work of incorporation immediately raised two problems. The first
was the question of the voting rights of the new citizens. These rights
were at first grudgingly accorded to prevent the new citizens swamping
the old. The _novi cives_ were enrolled in but eight of the existing
tribes.[1469] But this compromise could not last long; redistribution
became a party cry, and even the conservatives felt the damage done to
their cause by a prolonged opposition to the Italian vote. The measure
of Sulpicius (88 B.C.), which distributed the new citizens over all
the tribes, was indeed repealed with his other laws; but its principle
seems to have been adopted in a decree of the Senate of 84 B.C.,[1470]
and the equality of the Roman and Italian vote was henceforth never
questioned. The vote itself was not of the importance anticipated. It
was, in the first place, rendered ineffective through lack of a system
of representation. Even had such a system, planned on a small scale by
Augustus,[1471] been realised, it is questionable whether it could have
saved the Republic. The Empire had to be garrisoned by professional
armies, and these could not be found in Italy. The military and the civil
power would in any case have been opposed, and the conflict must have
ended in a victory for the former. But, so far as the extension of the
_civitas_ did affect future politics, it was only to create a dualism
between the Roman proletariate and the Italian country voters. They
had different ideals and different leaders. But the former were on the
spot, ready for any legislative work, and in the troubled politics that
ushered in the monarchy it was they who supported those champions of
freedom who replaced senatorial rule by a military despotism. The ideal
of the Italian was quiescence; the scattered voters with no corporate
organisation were more prone to look to persons than to causes; sometimes
there was a wave of municipal enthusiasm, but many an Italian township
recognised no leader but its Roman patron, and saw in his success at the
polls the highest use to which they could put their suffrage.
The second great problem was that of the future administrative relations
of Rome to these incorporated townships. The growth of the municipal
idea was not a new one. Even as early as the beginning of the second
century B.C. the possibility had been demonstrated of combining active
internal independence with the possession of the full Roman _civitas_.
Arpinum had received the full citizenship in 188 B.C., and its citizens
vote henceforward in the Cornelian tribe;[1472] but its internal autonomy
was not destroyed, for the town was still legislating for itself in 115
B.C.[1473] Meanwhile there are signs that a higher type of organisation
was being given to Roman colonies; at least duovirs, who may be _duoviri
juri dicundo_, are found at Puteoli in 105 B.C.[1474] This idea of some
political and judicial independence being enjoyed by townships, which had
become a part of Rome, was worked out on the grandest scale after the
social war; but the turbulent times which followed were not suited to
comprehensive municipal legislation, and it is not likely that a definite
system, which adjusted local to central powers, was developed before
the Augustan period. Something had however been done in Cicero’s time.
Here and there we find a local constitution remodelled,[1475] and there
is evidence that there was already some division of competence between
the local magistrate and the _praetor urbanus_ in civil jurisdiction—the
defendant being in some cases compelled to give bail (_vadimonium_) to
bring his case to Rome.[1476] This principle of a limitation of the
power of the local courts is found fully developed in a _lex Rubria_
which deals with the organisation of Cisalpine Gaul. This district had
held an anomalous position from the time of the social war. Although
still a province, its towns had been given Latin rights in 89 B.C.[1477]
This was interpreted by the democratic party as a forecast of the
citizenship, for Gallia Cisalpina was certainly enrolled in Rome by the
revolutionary government of Cinna or his successors.[1478] The grant,
however, was not approved at the Sullan restoration, and its validity
was disputed until Caesar renewed the gift in 49 or 48 B.C.[1479] Two
or three years earlier he had busied himself with the creation of
an Italian organisation in the Gallic towns;[1480] but, even after
his conferment of the citizenship, the incorporation of the district
into Italy was not immediately accomplished. It remained technically
a province until 42 B.C., when Octavianus gained the consent of the
Senate to its “autonomy,”[1481] i.e. to its recognition as a group of
Italian townships. It is doubtful whether the _lex Rubria_ belongs to
the epoch of the Julian or the Augustan organisation;[1482] but it
is practically certain that it extends an already existing Italian
system to the new district. The chief characteristic of the system is a
division of power between the praetor at Rome and the magistrate in the
municipal town. In the fragment of the law which we possess this division
is manifested in two particulars. The right of declaring bankruptcy
(_missio in possessionem_) is reserved for the praetor, although the
provisional arrest of the debtor (_duci jubere_) may be ordered by the
local magistrate. Again, in the action for the recovery of a loan and in
those arising from some other obligations, all cases involving a sum
over 15,000 sesterces must be remitted to Rome, the local magistrate
having the right to enforce on the parties bail (_vadimonium_) for
their appearance there.[1483] These fragmentary notices are an index
to a principle which was doubtless fully elaborated in the Augustan
legislation.
A tolerable degree of uniformity was also secured in the political
structure of the towns of Italy. It was but a development of the typical
Italian constitution of magistrates (_magistratus potestatesve_),[1484]
senate (_senatus_, _curia_, composed of _decuriones conscriptive_), and
popular assembly (_comitia conciliumve_, composed of _municipes_ and
sometimes of _incolae_); and the _lex Julia municipalis_ of Caesar (45
B.C.) ordains a uniform qualification for the local magistracies and
senates, and enjoins that the local census shall be taken in conjunction
with that of Rome. But, though the general lines of organisation were the
same, this uniformity was chiefly the result of growth, not of creation.
No effort was made at securing a common nomenclature either for the
states or for their officials. Caesar’s municipal law shows _municipia_,
_coloniae_ and _praefecturae_ existing side by side,[1485] while
inscriptions show titles for officials, such as dictator or praetor,
which may be as old as those of Roman magistrates.[1486]