CHAPTER VII

THE INTERNATIONAL RELATIONS OF ROME AND THE INCORPORATION OF ITALY

The peoples of Greece and Italy offer, amidst many general points

of similarity, some striking differences in their conceptions of

international relations. The pan-Hellenic sentiment, which created a

shadowy law of nations, has no pan-Italic counterpart. Outside the Greek

city-state there was but the sentiment of nationality to create rules for

human conduct; but, for this very reason, the rules, when created, were

of pan-Hellenic validity. In Italy we get narrower but closer groupings;

its history is the history of leagues, and the inevitable result of this

more concentrated life was a closeness of international ties between the

federated members which stood in marked contrast to the vagueness of the

relations between the isolated groups.

The ties of religion and of ethnic affinity, as expressed in an obvious

similarity of institutions, were, in Italy as elsewhere, the strongest

connecting forces between states; but in Italy they were but the first

rude ligaments that gave place to a stronger political bond and that

crumbled to pieces when the more enduring chain had been forged. The

festival of the Alban Mount became to the Latins, as the sacred centre of

Volsinii to the Etruscans, but the religious symbol of a lasting league.

Beyond the limits of the league the national and religious sentiment was

weak. There was no Delphi to direct the Italian peoples, and no Olympia

at which they might meet.

This isolated grouping of the Italian peoples may have been partly due to

the great mixture of the populations of Italy south of the Alps and south

even of the Apennines; but the earliest Italian history reveals the fact

that even the closely-related races of Latins, Umbrians, and Sabellians

were not connected by much closer ties of an international character

than those which bound each to the Etruscan, the Iapygian, the Gaul,

and the Greek. It is true that with the progress of time something like

an ethnic sentiment was created in the purely Italian group, with vast

consequences to the history of the world. After the Umbrian power, which

had once extended from sea to sea, had been weakened, on the left by

the Etruscan, on the right by the Celt, Rome becomes the great frontier

power, the bulwark of the group of blood-related nations against the

foreign-speaking Tuscan and the Gaul whose kinship with herself she had

forgotten; but the relation soon became political, and, therefore, more

than international. That aggregation of vague human sentiments, which is

called International Law, was not juristically stronger within the sphere

of the blood-related than it was within the sphere of the Italian group

of peoples.

Within this wider sphere of humanity, that was not yet “Italian,”

there are traces of the observance by Rome of customs relating to the

conduct of war and to negotiations for procuring peace—customs which

by their very existence show that, though the early Roman employed the

same word to designate the stranger and the enemy, a state of war was

not considered as the permanent relation even between _hostes_; which

prove, by their elaboration, the antiquity of some sense of international

obligation, and which exhibit, by the constancy with which they were

applied, the existence of reciprocal forms and duties owed by the

hostile state to Rome. The functions of the _Fetiales_, the priestly

ambassadors (_oratores_)[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]

Roman Public Life · 第 9 / 17 章