PART II

THE ROMAN ASSEMBLIES

[Illustration]

THE MACMILLAN COMPANY

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MACMILLAN & CO., LIMITED

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MELBOURNE

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TORONTO

THE

ROMAN ASSEMBLIES

FROM THEIR ORIGIN TO THE END

OF THE REPUBLIC

BY

GEORGE WILLIS BOTSFORD

PROFESSOR OF HISTORY IN COLUMBIA UNIVERSITY

AUTHOR OF “THE DEVELOPMENT OF THE ATHENIAN CONSTITUTION,”

“A HISTORY OF GREECE,” “A HISTORY OF ROME,”

“AN ANCIENT HISTORY,” ETC.

New York

THE MACMILLAN COMPANY

1909

_All rights reserved_

COPYRIGHT, 1909,

BY THE MACMILLAN COMPANY.

Set up and electrotyped. Published September, 1909.

Norwood Press

J. S. Cushing Co.—Berwick & Smith Co.

Norwood, Mass., U.S.A.

To MY WIFE

Οὐ μὲν γὰρ τοῦ γε κρεῖσσον καὶ ἄρειον,

Ἢ ὅθ’ ὁμοφρονέοντε νοήμασιν οἶκον ἔχητον

Ἀνὴρ ἠδὲ γυνή· πόλλ’ ἄλγεα δυσμενέεσσι,

Χάρματα δ’ εὐμενέτησι· μάλιστα δέ τ’ ἔκλυον αὐτοί.

PREFACE

This volume is the first to offer in monographic form a detailed

treatment of the popular assemblies of ancient Rome. Necessarily much of

the material in it may be found in earlier works; but recent progress

in the field, involving a reaction against certain theories of Niebuhr

and Mommsen affecting the comitia, justifies a systematic presentation

of existing knowledge of the subject. This task has required patient

labor extending through many years. The known sources and practically

all the modern authorities have been utilized. A determination to keep

free from conventional ideas, so as to look at the sources freshly and

with open mind, has brought views of the assemblies not found in other

books. The reader is earnestly requested not to reject an interpretation

because it seems new but to examine carefully the grounds on which it is

given. In general the aim has been to follow a conservative historical

method as opposed to the radical juristic, to build up generalizations on

facts rather than to estimate sources by the criterion of a preconceived

theory. The primary object of the volume, however, is not to defend a

point of view but to serve as a book of study and reference for those who

are interested in the history, law, and constitution of ancient Rome and

in comparative institutional research.

In the preparation of the volume, I have been generously aided by my

colleagues in Columbia University. To Professor William M. Sloane,

Head of the Department of History, I owe a great debt of gratitude for

kindly sympathy and encouragement in the work. It is an especial good

fortune that the proofs have been read by Professor James C. Egbert.

Many improvements are due to his scholarship and editorial experience.

Professor George N. Olcott has advised me on various numismatic matters,

and I am indebted to Dr. John L. Gerig for information on two or three

etymologies. The proofs have also been read and corrections made by Dr.

Richard R. Blews of Cornell University. It is a pleasure to remember

gratefully these able friends who have helped me with their special

knowledge, and to add the name of Mr. Frederic W. Erb of the Columbia

University Library, whose courtesy has facilitated the borrowing of books

for the study from other institutions.

Notwithstanding every effort to make the work accurate, mistakes and

inconsistencies will doubtless be found in it, and I shall thankfully

welcome suggestions from any reader for its further correction and

improvement.

GEORGE WILLIS BOTSFORD.

MOUNT VERNON, NEW YORK, June 7, 1909.

CONTENTS

PAGES

PART I

ELEMENTS OF THE COMITIAL CONSTITUTION 1-118

CHAPTER I

THE POPULUS AND ITS EARLIEST POLITICAL DIVISIONS 1-15

CHAPTER II

THE SOCIAL COMPOSITION OF THE PRIMITIVE POPULUS 16-47

CHAPTER III

THE THIRTY-FIVE TRIBES 48-65

CHAPTER IV

THE CENTURIES AND THE CLASSES 66-99

CHAPTER V

THE AUSPICES 100-118

PART II

THE ASSEMBLIES: ORGANIZATION, PROCEDURE, AND FUNCTIONS,

RESOLUTIONS, STATUTES, AND CASES 119-477

CHAPTER VI

COMITIA AND CONCILIUM 119-138

CHAPTER VII

THE CONTIO 139-151

CHAPTER VIII

THE CALATA COMITIA 152-167

CHAPTER IX

THE COMITIA CURIATA 168-200

CHAPTER X

THE ORGANIZATION OF THE COMITIA CENTURIATA 201-228

CHAPTER XI

THE FUNCTIONS OF THE COMITIA CENTURIATA 229-261

CHAPTER XII

THE COMITIA TRIBUTA AND THE RISE OF POPULAR SOVEREIGNTY,

TO 449 262-282

CHAPTER XIII

THE COMITIA TRIBUTA AND THE RISE OF POPULAR SOVEREIGNTY,

FROM 449 TO 287 283-316

CHAPTER XIV

THE JUDICIAL FUNCTIONS OF THE COMITIA TRIBUTA, FROM 287

TO THE END OF THE REPUBLIC 317-329

CHAPTER XV

COMITIAL LEGISLATION, FROM HORTENSIUS TO THE GRACCHI 330-362

CHAPTER XVI

COMITIAL LEGISLATION, FROM THE GRACCHI TO SULLA 363-411

CHAPTER XVII

COMITIAL LEGISLATION, FROM SULLA TO THE END OF THE REPUBLIC 412-461

CHAPTER XVIII

THE COMPOSITION AND PRESERVATION OF STATUTES, COMITIAL

PROCEDURE, AND COMITIAL DAYS 462-472

CHAPTER XIX

A SUMMARY OF COMITIAL HISTORY 473-477

BIBLIOGRAPHY 479-498

INDEX 499-521

THE ROMAN ASSEMBLIES

PART I

ELEMENTS OF THE COMITIAL CONSTITUTION

CHAPTER I

THE POPULUS AND ITS EARLIEST POLITICAL DIVISIONS

I. _The Populus_

The derivation of populus, “people,” “folk,” is unknown. Attempts have

been made to connect it with populari, “to devastate,” so as to give

it primarily a military signification—perhaps simply “the army.”[1]

In the opinion of others it is akin to plēnus, plēbes, πλῆθος, πολύς,

πίμπλημι,[2] in which case it would signify “multitude,” “mass,” with

the idea of collective strength, which might readily pass into “army” as

a secondary meaning.[3] Fundamentally personal, it included all those

individuals, not only the grown men but their families as well, who

collectively made up the state, whether Roman or foreign, monarchical or

republican.[4] Only in a transferred sense did it apply to territory.[5]

The ancient definition, “an association based on the common acceptance

of the same body of laws and on the general participation in public

benefits,”[6] is doubtless too abstract for the beginnings of Rome.

Citizenship—membership in the populus—with all that it involved is

elaborately defined by the Roman jurists;[7] but for the earlier period

it will serve the purpose of the present study to mention that the three

characteristic public functions of the citizen were military service,

participation in worship, and attendance at the assembly.[8] In a

narrower sense populus signifies “the people,” “masses,” in contrast with

the magistrates or with the senate, as in the well known phrase, senatus

populusque Romanus.

II. _The Three Primitive Tribes_

The Romans believed that the three tribes which composed the primitive

populus were created by one act in close relation with the founding

of the city.[9] For some unknown reason they were led to connect the

myth of Titus Tatius, the eponymous hero of the Tities,[10] with the

Quirinal,[11] and with the Sabines,[12] who were generally supposed to

have occupied that hill.[13] Consequently some of their historians felt

compelled to defer their account of the institution of the tribes till

they had told of the union of the Sabines with the Romans, which at the

same time gave them an opportunity to derive the names of the curiae from

those of the Sabine women. Varro,[14] however, who protests against this

derivation, refers the organization of the people in the three tribes to

an earlier date, connecting it immediately with the founding of Rome.

Though he affirmed that one tribe was named after Romulus, another after

Titus Tatius, and the third, less positively, after an Etruscan Lucumo,

Caeles Vibenna, who came to the aid of Romulus against Titus Tatius,[15]

neither he nor any other ancient writer identified the Tities with the

Sabines, whose quarter in the city was really unknown,[16] or the Luceres

with an Etruscan settlement under Caeles whether in the Vicus Tuscus[17]

or on the Caelian hill.[18] Since the Romans knew the tribe in no other

relation than as a part of the state, they could not have thought of

their city as consisting originally of a single tribe, to which a second

and afterward a third were added, or that any one of these three tribes

had ever been an independent community. These views are modern;[19] there

is no trace of them in the ancient writers.[20] Even if it could be

proved that they took this point of view, the question at issue would not

thereby be settled; for no genuine tradition regarding the origin of the

primitive tribes came down to the earliest annalists; the only possible

knowledge they possessed on this point was deduced from the names of the

tribes and from surviving institutions presumably connected with them

in the period of their existence.[21] Under these circumstances modern

speculations as to their independent character and diverse nationality

seem absurd. The proper method of solving the problem is to test and to

supplement the scant sources by a comparative study of the institution.

The low political vitality of the three primitive Roman tribes, as of the

corresponding Greek phylae,[22] when we first meet with them in history,

points to the artificiality of these groups—a condition indicated

further both by their number and by their occurrence in other Italian

states.[23] Far from being confined to Rome, the tripartite division of

the community belonged to many Greek and to most Italian peoples,[24]

and has entered largely into the organization of communities and nations

the world over.[25] A derivation of tribus, Umbrian trifu, accepted by

many scholars, connects it with the number three.[26] The wide use of

this conventional number, and more particularly the regular recurrence

of the same three Dorian tribes in many Dorian cities—as of the same

four Ionic tribes in many Ionic cities[27]—and of the same three Latin

(or Etruscan?) tribes in several old Latin cities, could not result from

chance combinations in all these places, but point unmistakably to the

systematic imitation of a common pattern. That pattern must be ultimately

sought in the pre-urban populus, ἔθνος, folk. If we assume that before

the rise of city-states the Ionian folk was organized in four tribes

(phylae) and the Dorian and Latin folks in three tribes, we shall have a

condition such as will satisfactorily explain the tribal organization of

the city-states which grew up within the areas occupied by these three

folks respectively. The thirty votes of the Latins may be best explained

by assuming a division of their populus into three tribes, subdivided

each into ten groups corresponding to the Roman curiae. Whereas in

Umbria the decay of the pre-urban populus allowed its tribes to become

independent,[28] in Latium a development in that direction was prevented

by the rise of city-states, which completely overshadowed the preëxisting

organization.

The Italian city-state grew not from a tribe or a combination of

tribes, but from the pagus,[29] “canton,” a district of the pre-urban

populus with definite consecrated boundaries,[30] usually centering

in an oppidum—a place of defence and refuge.[31] In the beginning the

latter enjoyed no superior right over the territory in which it was

situated.[32] A pagus became a populus at the point of time when it

asserted its political independence of the folk. The new state organized

itself in tribes and curiae after the pattern of the folk. In the main

this arrangement was artificial, yet it must have taken some account

of existing ties of blood.[33] At the same time the oppidum became an

urbs[34]—a city, the seat of government of the new populus. Thus arose

the city-state. In the case of Rome several oppida with parts of their

respective pagi[35] were merged in one urbs—that known as the city of the

four regions.[36] Urbs and ager excluded each other, just as the oppidani

contrasted with the pagani;[37] but both were included in the populus.

Most ancient writers represent the three tribes as primarily local,[38]

and the members as landowners from the founding of the city.[39] Although

their view may be a mere inference from the character of the so-called

Servian tribes, the continuity of name from the earlier to the later

institution points to some degree of similarity between them. It can be

easily understood, too, how in time the personal feature might have so

overcome the local as to make the old tribes appear to be based on birth

in contrast with the territorial aspect of the new.[40]

It was probably on the institution of the later tribes that the earlier

were dissolved. They left their names to the three double centuries of

patrician knights.[41] Their number appears also as a factor in the

number of curiae, of senators, and of members of the great sacerdotal

colleges. Other survivals may be found in the name “tribunus,” in the

tribuni militum, the tribuni celerum,[42] the ludus Troiae,[43] and less

certainly in the Sodales Titii.[44]

III. _The Curiae_

The curia as well as the tribe was a common Italian institution. We know

that it belonged to the Etruscans,[45] the Latins,[46] and several other

peoples of Italy.[47] There were ten curiae to the tribe, making thirty

in all.[48] The association was composed, not of gentes as many have

imagined, but of families.[49] For the performance of its social and

religious functions it had a house of assembly, also called curia,[50] in

which the members—curiales—gathered for religious festivals. The place

of meeting was a part of an edifice belonging to the collective curiae.

In historical time there were two such buildings—the Curiae Veteres[51]

on the northeast slope of the Palatine near the Arch of Constantine,

containing seven curial meeting-places, and the Novae Curiae[52] near the

Compitum Fabricium, containing the others. Their deities were Juno[53]

and Tellus;[54] and their chief festivals were the Fornacalia and the

Fordicidia.[55] As the worship was public, the expense was paid by the

state.[56] At the head of the curia stood the curio—who in historical

time was merely a priest[57]—assisted in his religious functions by

his wife and children,[58] by a lictor[59] and a flamen.[60] The fact

that the curio had these officials proves that he was originally a

magistrate.[61] One of the curiones the people elected curio maximus

to exercise general supervision over the worship and festivals of the

association.[62]

Another function of the curiae was political. The grown male members,

meeting in the comitium, constituted the earliest assembly organized in

voting divisions—the comitia curiata—in which each curia cast a single

vote.[63] Religious and political functions the curia continued to

exercise far down into historical time; and for that reason they have

never been doubted by the moderns. For the primitive period Dionysius[64]

ascribes to them military functions as well. His idea is that the three

original tribes furnished military divisions each under a tribune, and

the curiae as subdivisions of the tribe furnished companies, commanded

each by a curio chosen for his valor.[65] Doubtless the writer fairly

describes the military system which Rome employed before the introduction

of the phalanx,[66] and which corresponds closely with the system

prevalent among the early Greeks,[67] Germans,[68] and other European

peoples.[69] The military organization was everywhere a parallel of

the civil. The Roman army, however, was by no means identical with the

curiate assembly, for many belonged to the tribes and the curiae who for

various reasons were exempt from military service.[70]

It is probable, too, that the curiae, as well as the tribes,[71] were

territorial divisions. Not only have we the authority of Dionysius[72]

that each curia occupied a district of the state, but also two of the

seven known curial names—Foriensis and Veliensis[73]—are local. Though

the two mentioned refer to places within the city, the country people

were also included in the associations.[74]

* * * * *

Since Niebuhr the opinion has generally prevailed that the curia was

composed of gentes. A passage which at first glance seems to have a

bearing on the question is Dion. Hal. ii. 7. 4: “Romulus divided the

curiae into decades, each commanded by a leader, who in the language of

the country is called decurion.”[75] The word decurion proves, however,

that in speaking of decades Dionysius is thinking of the military

divisions called decuriae, each commanded by a decurion. In historical

times the troop of cavalry—turma—was divided into three decuriae of

ten each, as the word itself indicates. There were accordingly three

decurions to the turma, and ten turmae ordinarily went with the

legion.[76] From Varro[77] we learn that the three primitive tribes

furnished turmae and decuriae of cavalry, the decuriae commanded by

decurions. Dionysius accordingly refers to military companies—either

to the well known decuriae of cavalry or to corresponding companies of

footmen which probably existed before the adoption of the phalanx.[78]

Had he meant gentes, he would have used the corresponding Greek word

γένη. Niebuhr[79] inferred from this passage that each curia was divided

into ten gentes, making three hundred gentes for the entire state; but a

careful interpretation shows that no reference to the gentes is intended.

We cannot infer therefore from this citation that the curia was divided

into gentes.

The other passage relative to the question is Gellius xv. 27. 4,[80] in

which Laelius Felix states that the voting in the comitia curiata was by

genera hominum in contrast with the census et aetas of the centuriate

assembly and with the regiones et loca of the comitia tributa. Niebuhr

identifies genera with gentes.[81] It is clear, however, that in this

passage Laelius is not concretely defining the voting units of the

various assemblies, but is stating in a general way the principles

underlying their organization into voting units. In the comitia

centuriata the principle is wealth and age; census et aetas is not to

be identified with centuria or with any other group of individuals in

this assembly. In like manner regiones et loca expresses the principle

of organization of the tribal assembly; or if used concretely, it must

designate the tribes themselves, and not subdivisions of the tribes, for

none existed. Correspondingly genera hominum signifies that the principle

of organization of the curiate assembly is hereditary connection; but

so far as the expression is applied concretely, it must denote the

curiae themselves not subdivisions of these associations. The curia,

a religious, social, and political group based on birth, might well

be called genus hominum in contrast with the local tribe and with the

century, composed artificially of men of similar wealth and age. It is

well known, too, that voting within the curiae was not by gentes but by

heads.[82] As no other passage from the sources, besides these two, has

even the appearance of lending support to the proposition advanced by

Niebuhr, and favored by others, that the curia was a group of gentes, we

may conclude that this proposition is groundless. The result is that the

gens had no connection with the comitial organization.

I. THE POPULUS; the beginnings of Rome: Schwegler, A.,

_Römische Geschichte_, I. bk. viii; Peter, C., _Geschichte

Roms_, i. 17 ff.; Niese, B., _Grundriss der röm. Geschichte_,

16 ff., 28 ff.; Jordan, H., _Topographie der Stadt Rom im

Altertum_, I. i. 153 ff; iii. 34; Gilbert, O., _Geschichte

und Topographie der Stadt Rom im Altertum_, i, ii; Richter,

_Topographie der Stadt Rom_, 30 ff. (see review by H. Degering,

in _Berl. Philol. Woch._ 1903. 1645 f.); Platner, S. B.,

_Topography and Monuments of Ancient Rome_, ch. iv; Schulze,

W., _Zur Geschichte lateinischer Eigennamen_, 579-82; Pais,

E., _Ancient Legends of Roman History_, ch. xii; Nissen,

H., _Das Templum_, ch. v; _Italische Landeskunde_, ii. 488

ff.; Kornemann, E., _Polis und Urbs_, in _Klio_, v (1905).

72-92; Carter, J. B., _Roma Quadrata and the Septimontium_,

in _Am. Journ. of Archaeol._ xii (1908). 172-83; Deecke,

Wm., _Die Falisker_; Montelius, _Die frühesten zeiten Roms_,

in _Correspbl. d. deutsch. Gesellsch. f. Anthr. Ethn. u.

Urgesch._ xxxv (1904). 122; Pöhlmann, R., _Die Anfänge Roms_;

Schrader, O., _Sprachvergleichung und Urgeschichte_, bk. IV.

ch. xii; _Heer, König, Sippe, Stamm_ in _Reallexikon der

indogermanischen Altertumskunde_; Fustel de Coulanges, _Ancient

City_, bk. iii; Leist, _Graeco-italische Rechtsgeschichte_,

103 ff.; _Alt-arisches Jus Civile_, i. 319-36; Meyer, E.,

_Geschichte des Altertums_, ii. 510 ff.; Mommsen, _History

of Rome_, bk. I. chs. iii, iv; _Röm. Staatsrecht_, iii. 3

ff., 112-22; Marquardt, J., _Röm. Staatsverwaltung_, i. 3

ff.; Lange, L., _Röm. Altertümer_, i. 55-284; _Das röm.

Königtum_, in _Kleine Schriften_, i. 77-104; Herzog, E.,

_Geschichte und System der röm. Staatsverfassung_, i. 3-23,

969 ff.; Willems, P., _Droit public Romain_, 17 ff.; Karlowa,

O., _Röm. Rechtsgeschichte_, i. 30 ff.; Greenidge, A. H. J.,

_Roman Public Life_, ch. i; Bernhöft, F., _Staat und Recht

der röm. Königszeit_, 69 ff.; Genz, _Das patricische Röm_, 51

ff.; Morlot, E., _Les comices électoraux sous la république

Romaine_, ch. i.

II. THE PRIMITIVE TRIBES: Niebuhr, B. G., _Röm. Geschichte_,

i. 300-321; English, i. 149-58; Schwegler, ibid. I. bk. IX.

ch. xiv. § 2; Niese, ibid. 30 f.; De Sanctis, G., _Storia

dei Romani_, i. 249-55; Gilbert, ibid. ii. 329-79; Nissen,

_Templum_, 144-6; _Ital. Landesk._ ii. 7-15, 496 ff.; Jordan,

H., _Die Könige im alten Italien_, 35-7; controverted by

W. Soltau, in _Woch. f. Kl. Philol._ xxv (1908). 220-3;

Mommsen, _Röm. Staatsr._ iii. 95-100, 109-12; _Rom. Tribus_,

1 f.; Lange, _Rom. Alt._ i. 81-101; Herzog, ibid. i. 23 ff.;

Madvig, J. N., _Röm. Staat_, i. 95-8; Mispoulet, J. B., _Les

institutions politiques des Romains_, i. 3-6; Soltau, W.,

_Altröm. Volksversammlungen_, 46-51; Willems, P., _Le sénat

de la république Romaine_, I. ch. i; Bloch, G., _Les origines

du sénat Romain_, 1-16, 32-8; Bernhöft, ibid. 79 ff.; Genz,

ibid. 89-106; Meyer, ibid.; _Der Ursprung des Tribunats und

die Gemeinde der vier Tribus_, in _Hermes_, xxx (1895). 1-24;

controverted by Sp. Vassis, in _Athena_, ix (1897). 470-2;

Kubitschek, W., _De romanorum tribuum origine ac propagatione_

1 ff.; Volquardsen, C. A., _Die drei ältesten röm. Tribus_, in

_Rhein. Mus._ N. F. xxxiii (1878). 538-64; Bormann, E., _die

älteste Gliederung Roms_, in _Eranos Vindobonensis_, 345-58;

Holzapfel, L., _Die drei ältesten röm. Tribus_, in _Beiträge

zur alten Geschichte_, i (1902). 228-55; Bertolini, C. I., _I

celeres ed il tribunus celerum_; Zimmermann, A., _Zu Titus_,

etc., in _Rhein. Mus._ N. F. 1 (1895). 159 f.; Schlossmann,

S., _Tributum, tribuere, tribus_, in _Archiv f. lat. Lexicog._

xiv (1906). 25-40; Schulze, W., _Zur Gesch. lateinischer

Eigennamen_, see index, s. Ramnenses, etc.

III. THE CURIAE: POTT, A. F., _Etymologische Forschungen_,

ii. 373 ff.; Corssen, W., _Ausspr._ index, s. Curia; Vaniček,

A., _Etymologisches Wörterbuch der lat. Sprache_, 160;

_Griech.-lat. etym. Wörterbuch_, 1116; Niebuhr, ibid. i.

321-54; Schwegler, ibid. i. 610-12; Gilbert, ibid, index s.

Curia; Richter, ibid. index s. Curia; Mommsen, _Röm. Staatsr_.

iii. 89 ff.; Lange, ibid. i. 275-84, and index, s. Curia;

Willems, P., _Sén. Rom._ ibid.; Bloch, G., _Orig. d. sén._ 290

ff.; Mispoulet, J. B., ibid. i. 7-9; Fustel de Coulanges, ibid.

154-7; Karlowa, ibid.; Genz, ibid. 32-50; Hoffmeister, K.,

_Die Wirtschaftliche Entwickelung Roms_, 5 f.; Soltau, ibid.

46-67; Müller, J. J., _Studien zur röm. Verfassungsgeschichte_,

in _Philol._ xxxiv (1875). 96 ff.; Ihne, Wm., _History of

Rome_, i. 113 f.; Newman, F. W., _Dr. Ihne on the Early Roman

Constitution_, in _Classical Museum_, vi (1849). 15 ff.;

Hoffmann, E., _Patricische und plebeiische Curien_; Kübler and

Hülsen, _Curia_, in Pauly-Wissowa, _Real-Encycl._ iv. 1815-26;

Pelham, H., _The Roman Curiae_, in (English) _Journal of

Philology_, ix (1880). 266-79.

IV. THE GENTES: Fustel de Coulanges, ibid. bk. ii; Leist,

_Graeco-ital. Rechtsgesch._ 11 ff.; _Alt-arisches Ius Gentium_;

_Alt-arisch. Jus Civ._ i. 461-76 (Irish Kin); Hirt, H.,

_Indogermanen_, ii. 409-56; Engels, F., _Der Ursprung der

Familie, des Privateigentums und des Staats_, ch. v; Howard,

G. E., _History of Matrimonial Institutions_, I. pt. i;

Levison, W., _Die Beurkundung des Zivilstandes im Altertum_;

Wildebrandt, M., _Die politische und sociale Bedeutung der

attischen Geschlechter vor Solon_, in _Philologus_, Supplb.

vii (1899). 135-227; Kovalevsky, M., _La gens et le clan_,

in _Annales de l’institut international de sociologie_, vii

(1900). 57-100; Ruggiero, E., _La gens in Roma avanti la

formazione del comune_; Schwegler, ibid. i. 612-15; Lange,

ibid. i. 211-59, and see index, s. v.; Mommsen, _Röm. Forsch_,

i. 1-127; _Röm. Staatsr._ iii. 9-53, and see index s. v.;

Mispoulet, ibid. i. 9-14; Willems, _Sén. Rom._ i. chs. i-iii;

Müller, J. J., _Studien z. röm. Verfassungsgesch._ in _Philol._

xxxiv (1876). 96-104; Bloch, G., ibid. 102 ff.; _Recherches

sur quelques gentes patriciennes_, in _Mélanges d’archéologie

et d’histoire de l’école Française de Rome_, 1882. 241-76;

Soltau, ibid. 58-64, 652-5; Bernhöft, ibid.; Genz, ibid.

1-31; Bloch, L., _Die ständischen und sozialen Kämpfe in der

röm. Republik_; Holzapfel, L., _Il numero dei senatori Romani

durante il periodo dei rei_, in _Rivista di storia antica_,

ii. 2 (1897). 52-64; Marquardt, J., _Privatleben der Römer_,

1-26, 353 f.; Deecke, ibid. 275 ff. (on Italian names); Michel,

N. H., _Du droit de cité Romaine_; Köhm, J., _Altlateinische

Forschungen_, 1-21; Lécrivain, C., _Gens_, in Daremberg et

Saglio, _Dict._ ii. 1504-16; Ruggiero, E., _Diz. ep._ iii

(1906). 482-6; Casagrandi, V., _Le minores gentes ed i patres

minorum gentium_; Staaf, E., _De origine gentium patriciarum_;

Lieboldt, K., _Die Ansichten über die Entstehung und das Wesen

der Gentes patriciae aus der Zeit der Humanisten bis auf unsere

Tage_; Botsford, G. W., _Some Problems connected with the Roman

Gens_, in _Political Science Quarterly_, xxii (1907). 663-92.

CHAPTER II

THE SOCIAL COMPOSITION OF THE PRIMITIVE POPULUS

This chapter[83] is primarily an inquiry into the social composition

of the comitia curiata. At the same time it seeks to solve a problem

which is doubtless the most fundamental in the early political and

constitutional history of Rome. The result we reach will determine our

conception of the whole course of constitutional development, and of the

accompanying political struggles, to the complete equalization of the

social ranks. For if we believe, as do many of the moderns,[84] that

the primitive Roman state was made up exclusively of patricians, we are

forced to the conclusion that the constitutional development to the

passing of the Hortensian laws centred in the gradual admission of the

plebeians and the clients to citizenship—perhaps even in the amalgamation

of two distinct peoples. If on the other hand we take the ground that

from the beginning the plebeians and the clients were citizens and voted

in the comitia curiata, we must think of these inferior classes as

struggling through the early history of their country for the acquisition

not of citizenship but of various rights and privileges, social,

economic, religious, and political, formerly monopolized by a patrician

aristocracy. In attempting to solve the problem here proposed it will

be advantageous to consider (1) the ancient view, (2) the conventional

modern view, (3) the comparative-sociological view.

I. _The Ancient View_

The three social classes of freemen—plebeians, patricians, and

clients—were formed within the citizen body by official recognition of

existing distinctions not of nationality but of worth. The first step

in the process was the differentiation of the patricians from the

plebeians. According to Cicero, Romulus constituted a number of chief men

into a royal council, the senate, whose members he so highly esteemed as

to have them called patres, and their children patricians.[85] Cicero

thinks of the multitude as existing at first without a politically

recognized nobility, yet showing natural distinctions of worth. By

calling into the senate the ablest and best men, the state ennobled them

and their families.[86] Livy’s[87] view is similar: Romulus selected

from the multitude a hundred senators, whom he named patres, and whose

descendants were called patricians. They were chosen because of their

wisdom;[88] on that ground the state granted them nobility,[89] which

accordingly in Rome, as in every early community, was founded on personal

merit.[90] In the more detailed theory of Dionysius,[91] Romulus

“distinguished those who were eminent for their birth and celebrated

for their virtue, and whom he knew to be rich in the account of those

times and who had children, from the obscure and mean and poor. The

lower class he called plebeians, Greek δημοτικοί, and the higher patres,

either because they were older than the others, or had children, or

were of higher birth, or for all these reasons.... The most trustworthy

historians of the Roman constitution assert that owing to these facts

they were called patres and their descendants patricians.” According to

Plutarch,[92] “Romulus, after forming the army, employed the rest of the

people as the citizen body (δῆμος); the multitude he called populus, and

appointed a hundred nobles to be councillors, whom he called patricians,

and their assembly the senate.”[93]

There can be no doubt, therefore, as to the opinion of the ancient

writers. They believed that from the beginning social distinctions

existed naturally within the populus Romanus, and that these distinctions

were made the basis of an official division of the people into nobles and

commons, patricii and plebs, by the government. This view is not only

reasonable in itself, but is supported, as we shall see, by analogies

drawn from many other states.

All the sources make the patriciate depend upon connection with the

senate, Dionysius alone showing some inconsistency on this point.[94]

Why the senators were called patres the ancients give various reasons.

Cicero[95] thinks patres a term of endearment; Sallust[96] believes that

the name was applied either because of age or because of the similarity

of their duty; Livy[97] sets it down as a title of honor; Festus[98]

thinks chiefly of their age and wisdom; Paulus,[99] his epitomator,

suggests that they were so called because they divided their lands

among the poorer class as fathers among children; Dionysius[100] gives

three possible reasons, (1) greater age, (2) possession of children,

(3) family reputation. The sources generally agree in representing the

patres as men who in age, honor, authority and duty stood toward the

rest of the citizens as a father toward his children, and in identifying

these social-political patres with the senators.[101] An examination

of the word itself will tend to confirm the ancient view. It seems to

have originally signified “protector,” “keeper,” “nourisher,”[102] hence

“owner,” “master.” Pater familias is nourisher, protector, and master

of a household.[103] In late Roman law the term continued to refer not

necessarily to actual parentage but rather to the legal position of the

head of a household;[104] in fact it is only in a distantly derived sense

that pater comes to signify the male parent. Ideas early attaching to the

word, accordingly, are those of power or authority and age. The senate,

as this word indicates, was originally made up of elderly men, senatores,

maiores natu.[105] It would be natural to call them patres because of

their authority over the community or of their age. As a designation of

rank, pater, excepting in jest, is always plural—an indication that the

authority and dignity did not attach to the individual noble but to the

senators collectively; they were collectively patres of the community,

not individually patres of children, clients or gentes.[106] But when in

time a limited number of families monopolized the senate, the term could

easily be extended to the entire privileged circle, meaning those with

hereditary right to authority over the rest of the community.[107] Though

in the sources the patres are generally senators the word is sometimes

synonymous with patricii.[108]

Regarding patricius the Romans reasoned with somewhat less care. They

were right in deriving it from pater, but they made it signify “descended

from,” whereas in fact it means “belonging to,”[109] and designates

accordingly the families of the political patres. Probably it was

formed after patres began to be applied to the entire governing class—a

development which would tend to throw the latter word back to its earlier

and narrower sense.

Had the investigation of these words on the part of the ancients rested

at this point, all would have been well; but an unfortunate guess as to

the derivation of patricii by some unknown antiquarian has brought into

the study of the social ranks unutterable confusion lasting down to the

present day. This conjecture derives patricius from patrem ciere, making

it signify “one who can cite a father.” The attempted etymology, clearly

a failure, would perhaps have been harmless, had it not connected itself

with the ambiguous word ingenuus. Cincius[110] says, “Those used to be

called patricians who are now called ingenui.” Livy has the two ideas in

mind when he represents a plebeian orator as inquiring, “Have ye never

heard it said that those first created patricians were not beings sent

down from heaven, but such as could cite their fathers, that is, nothing

more than ingenui? I can now cite my father—a consul—and my son will be

able to cite a grandfather.”[111] There should be no doubt as to the

meaning of these passages; the antiquarian who conjectured that patricius

was derived from patrem ciere, and therefore defined patricii as those

who could cite their fathers, meant merely those who had distinguished

fathers, and hence were of respectable birth. Ordinarily in extant Latin

literature ingenui are simply the freeborn; and in making Appius Claudius

Crassus in 368 include in the term the whole body of citizens Livy[112]

dates this meaning back to the period before the Licinian-Sextian laws.

Elsewhere are indications that in early times ingenui connoted rather

respectable birth, and so applied especially to the patricians.[113] The

quotations from Cincius and the attempted derivation of patricius from

patrem ciere, accordingly, are sufficiently explained without resorting

to the strange hypothesis, held by some, that in primitive Rome the

patricians were the only men of free birth.

In summarizing the ancient view as to the origin and nature of the

patriciate, it will be enough to say that the king chose from the

people men who were eminent for the experience of age, for ability and

reputation, to sit in his council, the senate; the men so distinguished

were called patres, whereas the adjective patricius applied as well

to their families—the patricii being those who could cite illustrious

fathers.[114] From this point of view the Roman nobility did not differ

from that of most other countries.

The plebs,[115] then, were the mass of common freemen, from whom the

nobility was differentiated in the way described above. From the

ancient point of view they existed from the beginning, prior even to the

patriciate itself.

It is equally true that in the opinion of the ancients the plebs were

prior to the clients. Cicero[116] records that Romulus distributed the

plebs in clientage among the chief men; Dionysius[117] adds that he gave

the plebeians liberty to choose their patrons from among the patricians.

Thus far their view is in complete accord with modern sociology,

which teaches that such class distinctions first arise through the

differentiation of freemen. Although aware of the fact that clientage

existed in other states which were presumably older than Rome,[118] her

historians doubtless felt that the institution could have been legalized

in their own country by recognition only on the part of the government.

They did not, however, work out a consistent theory of the relation

between this class and the plebeians. Certain passages[119] hint, though

they do not expressly assert, that at one epoch all the plebeians were

in clientage, whereas in their accounts of political struggles the

ancient writers uniformly array clients against plebeians almost from

the beginning of the state.[120] The latter view is historically better

founded.

There must have been various origins of clientage, with corresponding

gradations of privilege. The libertini were citizens with straitly

limited rights; other clients, certainly the greater part of the class,

not only followed their patron to war[121] and to the forum,[122] but

also testified and brought accusations in the courts[123] and voted

in the assemblies;[124] and when the plebeians gained the right to

hold offices the clients were admitted along with them to the same

privilege.[125] In his relation with the state, therefore, the ordinary

client did not differ essentially from the plebeian.

From the preceding examination of the social ranks it at once becomes

evident that the ancients made the populus comprise both patricians and

plebeians; in further proof of their view may be cited the following

juristic definition: “Plebs differs from populus in that by the word

populus all the citizens are meant, including even the patricians,

whereas plebs signifies the rest of the citizens, excepting the

patricians.”[126] Since the sources generally consider the patricians

the descendants of the hundred original senators,[127] they cannot

help regarding the populus as composed chiefly of plebeians. In common

speech the term, like our word people, often applies to the lower class

as distinguished from the higher, in which sense it is interchangeable

with plebs; often, too, it signifies the people in contrast with the

senate.[128] It is clear, then, as Mommsen has pointed out,[129] that

if populus signifies first the whole body of citizens and secondly the

commons as distinguished from the nobles, it could not possibly have as

a third equivalent the patricians as distinguished from the plebeians.

In certain formulae found in addresses, wills, prayers, and oracles,

populus is so joined with plebs (populus plebesque or the like) as to

suggest the possible meaning patricians.[130] The combination of the

two words with senatus,[131] however, reveals at once the overlapping

of the terms so joined. In these passages reference is to the modes by

which an individual may approach the state; he may address the consuls,

praetors, or plebeian tribunes, and in the same way the senate, populus,

or plebs.[132] Hence in these formulae, merely representing groups of

institutions through which the state is accustomed to act, the word

populus does not apply solely to the patricians, and the same may be said

of its use in all other connections. We may conclude, therefore, that the

Latin language gives no hint of an exclusively patrician populus.

Regarding the populus as made up of patricians, plebeians, and clients,

our sources necessarily ascribe the same social composition to its

divisions, the three old tribes and the thirty curiae.[133] With perfect

consistency they mention repeated enlargements of the populus and of the

tribes and curiae, through the admission of masses of aliens, most of

whom must have remained plebeian. In fact the sources uniformly represent

all the kings as freely admitting conquered aliens without exception to

the citizenship and to the tribes and the curiae, even compelling some

forcibly to enter this condition.[134]

Might the plebeians and clients belong in a restricted sense to the

populus and curiae, and yet remain so far inferior to the patricians as

to be excluded from the political meetings of the curiae—the comitia

curiata? There can be no uncertainty as to the answer to this question,

for the ancient writers agree that the comitia curiata included plebeians

and clients as well as patricians.[135] Not only did the lower classes

attend this assembly, but they also voted in it, and constituted the

majority.[136]

II. THE CONVENTIONAL MODERN VIEW

The passages cited above suffice to prove that the ancient writers

thought of the populus, and consequently of the comitia curiata, as

composed from the earliest times of patricians, clients, and plebeians.

Another question, far more difficult, is whether the ancients were right

in their view.

As none of the authorities on whom we directly depend for our knowledge

of Roman affairs lived earlier than the last century of the republic,

they could have had no first-hand acquaintance with primitive Roman

conditions, but must have drawn their information concerning the

remote past from earlier writers—the annalists—now lost. Niebuhr, who

in the opening years of the last century introduced the modern method

of investigating Roman history, was convinced that writers of the

late republic and of the empire, lacking historical perspective and

interpreting their sources in the false light of existing or recent

conditions, came to wrong conclusions in regard to the primitive Roman

state. He believed he could point to instances of such misunderstanding,

and he thought it within the power of a well-equipped modern historian to

eliminate much of the error so as to come near to the standpoint of the

earlier and more trustworthy annalists.[137]

The position of Niebuhr has in the main proved untenable. Notwithstanding

all the source-sifting of modern times, pursued most zealously by the

Germans, we are obliged to admit that it is rarely possible with any

fair degree of certainty to discover the view of an annalist on a given

subject excepting in the few cases in which the citation is by name.

We must also admit that though Cicero and the Augustan writers might

misinterpret Fabius Pictor in minor details, it is inconceivable that

they should fail to understand his presentation of so fundamental a

subject as the character of the original populus or the composition of

the earliest assembly. Present scholarship accordingly insists that in

such weighty matters there was no essential difference of view between

earlier and later writers.[138]

These considerations have simplified but not solved the problem. Scholars

now agree that no contemporary account of the regal period—ending 509 (?)

B.C.—ever existed; and even if it be conceded that the earliest Roman

annalist—Fabius Pictor, born about 250 B.C.—had access to traditional

or documentary[139] information reaching back to the close of that

period, no historian will admit such a possibility for the beginnings of

Rome. It follows then that for the origin and character of her earliest

institutions Cicero, Livy, and Dionysius, or their sources, have relied

wholly on inference from later conditions, in so far as they have not

resorted to outright invention. Though with their abundant material

they were in a far better position for making such deductions than we

are, they lacked the experience and the acute critical method of the

moderns.[140] Of the three writers above mentioned—our main sources for

the subject under discussion—Cicero was essentially an orator, Dionysius

a rhetorician, and Livy, though historian in name, was in spirit

rhetorical and dramatic rather than critical. Naturally therefore they or

their sources, who on the whole were equally uncritical, made mistakes

in the difficult work of drawing inferences as to the history and

institutions of the regal period. Such is the view of historians today.

It was formerly argued that Dionysius, a rhetorician and a Greek, failed

in spite of his twenty-two years of preparation at Rome to understand

the spirit and character of the Roman constitution and has therefore

been an especial fountain of error;[141] but it is now clear that though

in his treatment of early Rome he shows far greater amplitude than Livy

and is for that reason proportionally more liable to error in detail, he

follows good Roman sources for institutions, and is in this field, with

the reservation here mentioned, not essentially inferior to the extant

native writers.[142]

Considering the sources untrustworthy and following certain clues which

he believed they afforded to a right understanding of the annalists,

Niebuhr came to his theory as to the composition of the primitive

Roman state. Although he asserts that it was made up of “patrons and

clients,”[143] he does not rest satisfied with this view, but proceeds to

trace clientage to the following origins, as though in his opinion this

institution did not exist from the beginning: (1) some native Siculians

perhaps, who were conquered by Latin invaders; (2) strangers settling on

Roman territory and choosing a Roman as protector; (3) inhabitants of

communities which were obliged to take refuge under Roman protection;

(4) manumitted slaves.[144] Logically he goes back to a state made up

exclusively of patricians.

He sought evidence for this hypothesis in the scheme of tribal

organization of Rome. The primitive city was divided into three tribes,

thirty curiae and, as he believed, three hundred gentes. As no one could

be a citizen without membership in a gens,[145] and as the patricians

alone were active members of the gentes,[146] it must follow that the

patricians alone were citizens. It is doubtful whether he would have

proposed this hypothesis had it not been for the analogy of the Attic

tribal scheme. An imperfect quotation from the lost part of Aristotle’s

_Constitution of Athens_[147] seems to signify that the Athenian state

was once divided into four tribes (φυλαί), twelve phratries and three

hundred and sixty gentes (γένη). On this authority Niebuhr supposes that

the phratry was a group of gentes, and he assumes further that both

phratries and gentes were composed exclusively of eupatrids.[148] But the

suppositions (1) that there were three hundred and sixty gentes, (2) that

the phratry was a group of gentes, (3) that both phratries and gentes

contained only eupatrids are contradicted by well known facts. From the

earliest times the Greek tribes and phratries included commons as well as

nobles. This is true of the Homeric Greeks,[149] and a law of Draco[150]

proves that the early Attic phratry comprised both nobles and commons.

In historical times all citizens belonged to the phratries; whereas but

few were members of the gentes.[151] Most of the gentes were in fact

composed of the old landed nobility, though a few, like the Chalkidae and

the Eupyridae, were apparently industrial guilds, which had received the

privileges of the gentes. So far therefore from supporting Niebuhr in his

peculiar view of the Roman gentes and curiae, the Attic analogy militates

in every way against him. As his assumption that the curia was a group of

ten gentes has already been disproved,[152] it remains only to consider

whether the gens was an exclusively patrician institution. From the

circumstance that patricianism is not given as an element of Scaevola’s

definition, quoted by Cicero,[153] we may at once conclude that in their

time plebeians, too, were gentiles. This conclusion is supported by a

variety of evidence.

Several plebeian gentes are mentioned, including the Minucia and the

Octavia,[154] the Lutatia,[155] the Calpurnia,[156] the Domitia,[157]

the Fonteia,[158] the Aurelia,[159] and the Licinia.[160] Some gentes

comprised both patrician and plebeian families, as the Cassia,[161] the

Claudia,[162] the Cornelia,[163] the Manlia,[164] the Papiria,[165] the

Publilia or Poplilia,[166] the Aebutia,[167] and the Servilia.[168] Not

only do the sources refer to several plebeian gentes by name, but they

clearly imply in other ways the existence of such associations. Livy[169]

expresses the patrician sentiment that “it would seem an affront to the

gods for honors to be vulgarized and for the distinction between gentes

to be confused at auspicated comitia” (by the election of plebeians to

the consular tribunate). “The distinction between gentes” can only mean

the distinction between patrician and plebeian gentes—an interpretation

confirmed by a similar statement of Cicero[170] to Clodius, who had

passed by arrogation from a patrician to a plebeian gens: “You have

disturbed the sacra and contaminated the gentes, both the one you have

deserted and the one you have defiled” (by your admission into it). To

our other proofs we may add the consideration that the very expression

gentes patriciae[171] implies the existence of plebeian gentes. It is

natural then that Varro[172] should make gentilitas a condition of men

in general. In asserting that there were a thousand gentile names the

same authority[173] must have included those of plebeians, for scarcely a

hundred belonging to patricians could have been known to him. By no means

the weakest argument in favor of the view here presented is the fact that

the laws of the Twelve Tables concerning inheritance, tutelage,[174]

etc.—which apply not to the patricians alone but to the whole citizen

body—assume that every citizen in full possession of his civil rights

belonged to a gens.

A passage often interpreted against the existence of plebeian gentes

is Livy x. 8. 9: “Vos solos gentem habere.” In this case a plebeian

speaker says the patricians claim that they alone have gens (not

gentes). The context shows clearly, however, that gens does not here

denote an association but is used in the sense of illustrious birth or

pedigree,[175] as is sometimes our word family.[176] Wherever a nobility

exists it necessarily lays greater stress on descent than do the people,

and in all countries the nobles are in a far better position to keep up

family connections than are the commons. Naturally therefore at Rome we

hear more of patrician than of plebeian gentes. But in view of all the

facts mentioned above there should be no doubt as to the existence of the

latter. The result of this discussion is that neither in the composition

of the gens nor in its position in the community can support be found for

Niebuhr’s assumption of a patrician state.[177]

Other evidence for his hypothesis Niebuhr thinks he finds in a statement

of Labeo,[178] that the curiate assembly was convoked by a lictor,

the centuriate by a horn-blower; while Dionysius[179] says that the

patricians were summoned by name through a messenger, the people by

the blowing of a horn. Thus Niebuhr maintains that Labeo and Dionysius

agree unequivocally in designating the curiae as the assembly of the

patricians. But in fact these two sources refer to the customs of the

historical age, when the curiate assembly was ordinarily attended

by only three augurs and thirty lictors. Horn-blowing under these

circumstances would have been absurd. The summoning of the patricians

by their own name and that of their father, on the other hand, proves

them too few to compose a popular assembly. These citations therefore

are far from supporting his hypothesis. His last and greatest proof is

the identification of the lex de imperio, passed by the curiae, with the

patrum auctoritas. If these are merely two terms for the same act, the

curiae must have been made up of patres. But by establishing the fact

that the patrum auctoritas belonged to the senate or to its patrician

members, Willems[180] and Mommsen[181] have deprived Niebuhr’s hypothesis

of its main prop.

Niebuhr evidently believed that the curiae continued exclusively

patrician through the whole republican period.[182] This idea, however,

must be dismissed for the following reasons: (1) Our sources agree that

in the early republic the plebeians and clients continued to vote in

the curiate assembly.[183] (2) The plebeians were in the curiae in 208

B.C., when the first curio maximus was chosen from the plebs.[184] (3) In

the time of Cicero thirty plebeian[185] lictors represented the comitia

curiata, and gave the votes.[186] (4) Arrogations by plebeians took place

in this assembly; in the well-known case of Clodius it must be borne in

mind that it was a plebeian who arrogated him. (5) The extinction of the

patriciate did not involve the downfall of the comitia curiata.[187]

(6) The confirmation by the curiae (lex de imperio) of elections in the

centuriate assembly was conceived as a second vote of the community.[188]

(7) The resolutions of the comitia curiata are always thought of as

resolutions of the populus, which Latin literature nowhere restricts to

the patrician body. (8) In all ancient literature there is nowhere the

slightest hint of a change in the social composition of the curiae or

of the comitia curiata in the whole course of their history. What the

ancients believed to be true of either institution at any particular

period will hold therefore for its entire history.[189]

Of the arguments in favor of Niebuhr’s hypothesis either added by

Schwegler[190] or brought by him into greater prominence, one only

demands attention. He reasons that if the plebs were in the curiate

assembly, it would be impossible to explain the political advance made

by the institution of the comitia centuriata; and the constitutional

history of Rome would be reduced to an insoluble riddle. Here we have

to deal with a subjective argument—the rejection of sources because

they do not agree with a preconceived theory. Arguments of the kind,

however, which may be easily invented for the support or overthrow

of every imaginable proposition, carry little weight. Besides it is

easy to show by analogies from the history of other peoples that the

presence of the commons in the primitive assembly does not make the

constitutional history of Rome a real enigma. In the primitive German

assembly, for instance, were included all the warriors; and yet in the

more developed German states were monarchies and aristocracies which gave

the people little or no voice in the management of public affairs.[191]

The Homeric Greek assembly included all freemen, who, however, had

little to do with the government in that period, and still less under

the aristocracy which followed.[192] In like manner, although the

plebeians attended the comitia curiata and had a majority of votes in

this assembly, they could not thereby control the government, for they

absolutely lacked initiative.[193] The comitia centuriata, a timocratic

institution, elevated the rich and degraded the poor. Here as elsewhere

the poor lost by the substitution of aristocracy for kingship; but a

real constitutional advance was made in the gradations of privilege,

which were based on wealth and which reached like a ladder from the

humblest member of the proletarian century to the patrician knight in the

sex suffragia.[194] These gradations prepared the way for an ultimate

equalization of rights. We conclude, then, that the presence of the

commons in the primitive assembly is perfectly compatible with a rational

view of constitutional development.

With Schwegler, who grants however reluctantly that the commons were

received into the curiae before 208,[195] the theory enters upon its

present phase; for the great majority of writers since his time have

accepted his view, yet with varying opinions as to the date of the

change. Mommsen,[196] who more than any one else has made it clear that,

so far back as our sources reach, the populus comprised both patricians

and commons, nevertheless assumes that the latter were originally

outside the populus but were admitted no later than the beginning of the

republic.[197] In his reconstruction of the primitive state he supposes

that the citizens were all patres, in so far as they, and they alone,

could be fathers; or adjectively patricii, in so far as they, and they

alone, had fathers.[198] Added to the citizens and their slaves was a

class of persons termed clients, half way between freedom and slavery—a

class made up from various origins but chiefly by the conquest of

neighbors.[199] These clients belonged, as dependents of the gentes, to

the curiae, but had no vote in the assembly.[200] Later the plebs were

formed from the clients as the bond which united the latter with their

patrons relaxed.[201] The plebs, who were free citizens of inferior

rank, came into being at the moment when the patricio-plebeian comitia

centuriata acquired the right to express the will of the community.[202]

Although Mommsen knows well the weakness of the evidence offered by

earlier writers, he adopts the hypothesis of an original patrician state,

without attempting a systematic defence. Here and there in his works,

however, he mentions some fact or condition which he would like to have

considered proof. The following are the chief passages of this kind:

(1) The lack of right to the auspicia[203] and to the imperium[204] on

the part of the plebeians proves that the patriciate was the original

citizenship.

But we could as reasonably say, with reference to the auspices, that

the two Attic gentes which furnished the sacred exegetes contained the

only Athenian citizens.[205] The auspicia, as Soltau[206] has noticed,

belonged to the ius honorum, as did also the imperium; hence they were

both privileges of the nobility. In brief Mommsen’s reasoning would make

a governing nobility everywhere impossible.

(2) The cavalry were patrician; therefore the infantry must have

been.[207]

With the same kind of reasoning we could conclude that because in the

Homeric age of Greece chariots were used in war by nobles only, the

infantry must also have been exclusively noble; whereas we know that the

rank and file were common men.[208] That the Roman army before Servius

was similarly composed is supported not only by this and many other

analogies, but also by the unanimous testimony of the sources. As in

other primitive states the warriors belonged to the assembly and were the

citizens.

(3) Of the sixteen local tribes named after gentes it can be proved that

ten have the names of patrician gentes, and not one name is known to be

plebeian. This is evident proof that from the beginning the patriciate

was not nobility but citizenship.[209]

His premises prove no more than that at the time when these tribes were

instituted the patricians were influential enough to give their names to

ten, probably to all sixteen. In all the three cases mentioned, Mommsen

reasons that because the patricians alone enjoyed the honors, privileges,

and influence usually considered appropriate to a nobility, they must

therefore have constituted not the nobility simply but the whole citizen

body.

(4) He identifies patres with gentiles and assumes that the primitive

state was an aggregate of gentes, thus making the patres the only members

of the state.[210]

These are not proofs but unsupported assumptions. The only connection of

patres with gentes given in Latin literature is in the well-known phrases

patres maiorum and minorum gentium; and Cicero[211] makes it clear that

these patres were senators. The phrase means senators from, or belonging

to, the greater or lesser gentes. Furthermore it has been proved (1) that

the patricians were not the only gentiles,[212] (2) that the curia, and

hence the state, was not an aggregation of gentes.[213]

(5) We are informed, says Mommsen, (a) that the body of full Roman

citizens consisted originally of a hundred families, whose fathers,

the patres, regarded more or less concretely as the ancestors of the

individual gentes, composed the senate, and together with them their

descendants, the patricians, made up the citizen body; or expressed

in other words (b) patrician originally meant just what was afterward

included under the term ingenuus.[214]

For (a) Mommsen cites those passages by which it has been shown[215]

that the Romans looked upon the original hundred senators as the

fathers neither of the “citizen body” nor of the “full citizens,” but

of the nobility. His statement of the case is directly contradicted

by the authorities he quotes. As regards (b) it has been sufficiently

proved[216] that ingenuus when made equivalent to patricius most

naturally signifies not “of free birth,” but “of respectable, noble

birth.”

Most scholars have wisely avoided bringing the myth of the asylum[217]

into the argument. Pellegrino,[218] however, identifies the refugees

at that place with the entire plebeian body. As the asylum was not

an Italian but a Greek institution,[219] the story connected with it

is doubtless a myth. It seems to have been invented by the Greeks of

southern Italy, most probably in the fourth century B.C. At that time

they began to view with alarm the southward advance of the Romans, and

to disparage them accordingly by falsifications representing their

origin as obscure and disreputable.[220] Similar calumnies against other

peoples were concocted by their Greek enemies.[221] Notwithstanding

the fact that the story had not even a kernel of historical truth the

Romans accepted it with more or less modification[222] and used it to

some extent for partisan objects.[223] They could not oppose the plebs to

patricians as foreigners to natives, however, for (1) they supposed that

plebeians as well as patricians participated in the original settlement

of Rome, (2) they derived patrician as well as plebeian families from

foreign sources.[224] We are warranted in concluding that in adopting the

Greek myth of the asylum they looked upon it as a cause of increase in

the plebeian population without finding in it the origin of the plebeian

class.

To the theory of an exclusively patrician populus the following

objections may be summarily urged: (1) It is opposed by the unanimous

testimony of the ancient authorities. (2) It rests upon a wrong

explanation of the words patres, patricii, as designations of the nobles.

(3) It is further propped up by reasons so feeble as to testify at once

to its weakness, the more substantial basis having been overthrown

partly by Mommsen himself. (4) The number of patricians is too small for

the theory.[225] (5) It ignores the meaning of the word plebs, which

evidently signifies “the masses,” in contrast with the few nobles, and

hence could not apply to a class gradually formed by the liberation

of clients, or by the admission of foreigners. No one who holds the

theory has attempted to show what these liberated clients were called

when they were but few compared with the patricians—before they became

“the multitude.” (6) It is contradicted by everything we know of Rome’s

attitude towards aliens. So far back as our knowledge reaches, she was

extremely liberal in bestowing the citizenship, even forcing it upon some

communities. Only when she acquired the rule over a considerable part of

Italy did she begin to show illiberality in this respect. Down to 353 the

citizenship thus freely extended included the right to vote.[226] (7) It

assumes the existence of a community politically far advanced yet showing

no inequalities of rank among the freemen—a condition outside the range

of human experience. It aims to explain the origin of the social classes

on purely Roman ground, ignoring the fact that distinctions of rank

are far older than the city, and exist, at least in germ, in the most

primitive communities of which we have knowledge.[227]

III. _The Comparative-Sociological View_

As social classes belong to all society,[228] they cannot be explained

by the peculiar conditions of any one community. The only scientific

approach to this subject is through comparative study; the inferences of

the ancient historians relative to primitive Rome are not to be displaced

by purely subjective theories, but are to be tested by comparison with

conditions in other communities of equal or less cultural advancement.

Distinctions of rank depend ultimately upon physical, mental, and moral

inequalities,[229] which differentiate the population of a community

into leaders and followers.[230] The exhibition of physical strength

and skill on the part of young men and of knowledge and wisdom on the

part of the elders are often “the foundation of leadership and of

that useful subordination in mutual aid which depends on voluntary

deference.”[231] In an age in which men were largely under the control of

religion the possession of an oracle or skill in divination or prophecy

might contribute as much to the elevation of an individual above his

fellows.[232] Leadership, once obtained, could display and strengthen

itself in various ways. In primitive society the strong, brave,

intelligent man was especially qualified to take command in war. Success

brought the chief not only renown but a large share of the booty and in

later time acquired land. The same result might be obtained by other

means than by war;[233] but in any case wealth and influence inherited

through several generations made nobility.[234] Primarily grounded on

ability, wealth, and renown, this preëminence was often heightened by a

claim to divine lineage or other close connection with the gods.[235]

There was evidently a stage of development—before the association of

the nobles into a class—in which chieftains alone held preëminence.

This condition is common in primitive society, as among the American

Indians.[236] Also among the Germans, who had advanced somewhat beyond

this stage, each chief or lord appears to have been noble “less with

reference to other noblemen than with reference to the other free

tribesmen comprised in the same group with himself.”[237] From Brehon law

we infer that the Irish lords were individually heads of their several

groups of kinsmen or of vassals;[238] and in Wales the nobles were a

hierarchy of chieftains.[239] As soon as leadership became hereditary

there arose noble families, in which the younger members were often

sub-chieftains;[240] and finally through intermarriage among these

families, as well as through the discovery of common interests, the

nobles associated themselves into a class.

Among the ancient Germans,[241] the Greeks of the Homeric age,[242]

and in some early Italian states[243] certain families had become

noble, and others were on the way to nobility. For ancient Ireland the

entire process can be followed. A common freeman enters the service of

some chief, from whom he receives permission to use large portions of

the tribe land.[244] By pasturing cattle, he grows wealthy, becomes a

bo-aire (cow-nobleman) and secures a band of dependents. Supported by

these followers, he preys upon his neighbors and, if successful, becomes

in time a powerful noble.[245] After “a certain number of generations”

he can no longer be distinguished from the blooded nobility.[246] Here

is an instance of a common freeman’s becoming noble through service to

a chief. In like manner among the Saxons who had conquered England the

ceorl who “thrived so that he had fully five hides of land,” or the

merchant who had “fared twice over the wide sea by his own means,” became

a thane; “and if the thane thrived, so that he became an eorl, then was

he henceforth worthy of eorl-right.”[247] “The thanes were the immediate

companions of the king—his comitatus—and from their first appearance

in English history they took rank above the earlier nobility of Saxon

eorls, who were descended from ancient tribal chiefs. Thus the thanes as

a nobility of newly rich corresponded to the cow-noblemen of an earlier

time.”[248] In the way just described many rose from the lower ranks to

nobility. In fact, eminent authorities assert that the inferior nobles,

especially of the middle age, were more often of servile than of free

origin, as the common freemen were inclined to think it degrading to be

seen among the comites of a chief.[249]

It has now been sufficiently established that even in the tribal

condition people were differentiated into social ranks. We have traced

the beginning of nobility to leadership and have found, in both

ancient and mediaeval society, new noble families forming by the side

of the old. Social distinctions were well developed long before the

founding of cities. When a community, whether a tribe or a city, is far

enough advanced to begin the conquest of neighbors, “it has already

differentiated into royal, noble, free, and servile families.”[250] This

was true of Sparta. In her “the conquerors nevertheless, notwithstanding

great differences among themselves, remain sharply separated in social

function from the conquered.... The conquerors became a religious,

military, and political class, and the conquered an industrial

class.”[251] Even in the case of Sparta, however, which is perhaps our

best example of the exclusiveness of a ruling city, there is evidence

of mingling between the conquering Spartans and the conquered Laconians

before the former became exclusive.[252] In like manner there was much

mixing of the invading “Aryans” with the natives of India—the more

intelligent of the natives rising to the higher classes and the less

gifted of the invaders sinking to the lower—before the crystallization

of the castes.[253] We find the same mingling of conquerors and

conquered in varying degrees in ancient Ireland,[254] in England under

the Normans,[255] and throughout the Roman empire in the period of

Germanic settlements.[256] It becomes doubtful, therefore, whether a

nobility was ever formed purely by the superposition of one community

upon another. The effect of conquest was rather to accentuate existing

class distinctions, and by a partial substitution of strangers in place

of native nobles to stir up antagonism between the classes. Even where

the differences between the social ranks seem to be racial, it would

be hazardous to resort to the race theory in explanation; for such a

condition could be produced in the course of generations by different

modes of life, education, nurture, and marriage regulations of the nobles

and commons respectively.[257]

The study pursued thus far will enable us to understand how there came

to be social classes at Rome before the beginning of conquest. But for

a long time after the Romans began to annex territory we may seek in

vain for a distinction between conquerors and conquered, like that which

we find in Laconia. We are forbidden to identify the plebs with the

conquered and the patricians with the conquerors by many considerations

mentioned above—for instance, by tradition,[258] by the derivation

of several patrician gentes from various foreign states,[259] by the

fewness of the patricians,[260] and by the fact that the latter show

no differentiations of rank, such as we find among the conquering

Spartans; they were not a folk but a nobility pure and simple. We are

to regard Rome’s early annexations of territory and of populations

not as subjugations, but as incorporations on terms of equality. The

people incorporated were of the same great folk, the Latins, or of a

closely related folk, the Sabines. Accordingly they were not reduced

to subjection, but were admitted to citizenship, to the tribes and

the curiae, and their nobles were granted the patriciate.[261] Only

communities of alien speech, like the Etruscan, or distant Italian

communities like the Campanian, were ordinarily given the inferior

civitas sine suffragio; and this restricted citizenship does not appear

in history before the middle of the fourth century B.C.

The analogies offered in this chapter, by proving that the conditions

they illustrate are possible for early Rome, tend to confirm the

authority of the sources. By similar comparative study it would be

practicable to illustrate in detail and to corroborate the statements

of ancient writers as to the organization of the plebs, as well as

of the patricians, in tribes and curiae, the participation of the

clients and plebeians in war and politics, and the deterioration of the

free commons through the strengthening of the nobility—all of which

are rejected by eminent modern historians, who merely imagine them

incompatible with primitive conditions or with a rational theory of

constitutional development. The inquiry has been pursued far enough,

however, to indicate that from a comparative-sociological point of view

the conception of early Rome handed down to us by the ancients is sound

and consistent, and that the method of subjective reconstruction of

history introduced by Niebuhr and still extensively employed by scholars

is unscientific.

I. ROMAN SOCIETY: Niebuhr, B. G., _Römische Geschichte_,

i. 321 ff.; English, 158 ff.; Schwegler, A., _Römische

Geschichte_, I. bk. xiv; Wigger, J., _Verteidigung der

nieburschen Ansicht über den Ursprung der röm. Plebs_; Peter,

C., _Geschichte Roms_, i. 31-3; _Verfassungsgeschichte der

röm. Republik_; _Studien zur röm. Geschichte mit besonderer

Beziehung auf Th. Mommsen_; Ihne, W., _History of Rome_,

i. 109 ff.; _Early Rome_, ch. ix; _Asylum of Romulus_, in

_Classical Museum_, iii (1846). 190-3; _Forschungen auf dem

Gebiete der röm. Verfassungsgeschichte_ (also translated into

English by Heywood); Lange, L., _Röm. Alt._ i. 414 ff., and

see indices s. Patres, Plebs, etc.; Mommsen, Th., _History

of Rome_, bk. 1. chs. v, vi; _Röm. Forschungen_, i. 131-284;

_Röm. Staatsrecht_, iii. 127 ff., and see indices s. Patres,

Plebs, etc.; _Abriss d. röm. Staatsrechts_, 3 ff.; Herzog,

E., _Geschichte und System der röm. Staatsverfassung_, i.

32 ff.; Meyer, E., _Geschichte des Altertums_, ii. 515-7,

521 f.; v. 141-3; _Plebs_, in _Handiwörterb. d. Staatswiss._

vi. 98-106; Niese, B., _Grundriss der röm. Geschichte_, 36

f.; Ampère, J. J., _Histoire Romaine à Rome_, i. 440 ff.;

ii. 15 ff.; Zöller, M., _Latium und Rom_, 163; Ridgeway,

W., _Early Age of Greece_, i. 254 ff.; Oberziner, G.,

_Origine della plebe Romana_; Conway, R. S., _I due strati

di populazione Indo-Europea del Lazio e dell’Italia antica_,

in _Rivista di storia antica_, vii (1903). 422-4; Hüllmann,

K. D., _Ursprünge der röm. Verfassung durch Vergleichungen

erläutert_; Mispoulet, J. B., _Institutions politiques des

Romains_, i. 14 ff.; Greenidge, A. H. J., _Roman Public Life_,

4 ff.; Abbott, F. F., _Roman Political Institutions_, 6 ff.;

Naudet, M., _De la noblesse et des récompenses d’honneur

chez les Romains_; Hoffmann, _Patricische und plebeiische

Curien_; Pelham, H., _Roman Curiae_, in (English) _Journal

of Philology_, ix (1880). 266-79; Soltau, W., _Altröm.

Volksversamml._ 58 ff., 625 ff.; Bernhöft, F., _Staat und Recht

der röm. Königsz._ 145 f.; Genz, H., _Das patricische Rom_;

Clason, D. O., _Kritische Erörterungen über den röm. Staat_;

Fustel de Coulanges, _Ancient City_, bk. iv; Pellegrino, D.,

_Andeutungen über den ursprünglichen Religionsunterschied

der röm. Patricier und Plebeier_; Hennebert, A., _Histoire

de la lutte entre les patriciens et les plébeiens à Rome_;

Bloch, L., _Die ständischen und sozialen Kämpfe in der röm.

Republik_; Wallinder, _De statu plebeiorum romanorum ante

primam in montem sacrum secessionem quaestiones_; Neumann,

K. J., _Grundherrschaft der röm. Republik, Bauernbefreiung

und Entstehung der servianischen Verfassung_; Holzapfel, L.,

_Die drei ältesten römischen Tribus_, in _Beiträge zur alten

Geschichte_, i (1902). 228-55; Heydenreich, E., _Livius und die

röm. Plebs_, in _Samml. gemeinverständlicher wissenschaftlicher

Vorträge_, xvii (1882). 581-628; Christensen, H., _Die

ursprüngliche Bedeutung der Patres_, in _Hermes_, ix (1875).

196-216; Staaf, E., _De origine gentium patriciarum commentatio

academica_; Terpstra, D., _Quaestiones literariae de populo_,

etc., ch. i; Köhm, J., _Altlateinische Forschungen_, ch. i;

Bröcker, L. O., _Untersuchungen über die Glaubwürdigkeit der

altröm. Verfassungsgeschichte_, 3 ff.; Botsford, G. W., _Social

Composition of the Primitive Roman Populus_, in _Political

Science Quarterly_, xxi (1906). 498-526 (the present chapter

is in the main a reproduction of this article); _Some Problems

connected with the Roman Gens_, ibid, xxii (1907). 663-92.

II. COMPARATIVE VIEW: Achelis, Th., _Moderne Völkerkunde,

deren Entwickelung und Aufgaben_, (Stuttgart, 1896) 406 ff.;

Ammon, O., _Die Gesellschaftsordnung und ihre natürlichen

Grundlagen_, (Jena, 1895) Teil i; D’Arbois de Jubainville,

_La civilisation des Celtes et celle de l’épopée Homerique_,

(Paris, 1899) ch. ii; Arnd, K., _Die materiellen Grundlagen und

sittlichen Forderungen der europäischen Kultur_, (Stuttgart,

1835) 444 f.; Barth, P., _Die Philosophie der Geschichte

als Sociologie_, i. (Leipzig, 1897) 382; Bastion, A., _Der

Mensch in der Geschichte_, iii. (Leipzig, 1860) 323-38;

_Allerlei aus Volks- und Menschenkunde_, ii. (Berlin, 1888)

138-54; _Rechtsverhältnisse bei verschiedenen Völkern der

Erde_, (Berlin, 1872) 8 ff.; Bluntschli, J. K., _Theory of

the State_, (2d ed. from the 6th German: Oxford 1892) bk.

II. chs. vi-xiii; Bordeau, L., _Le problème de la vie: Essai

de sociologie générale_, (Paris, 1901) 95; Brunner, H.,

_Grundzüge der deutschen Rechtsgeschichte_, i (Leipzig, 1901);

Bücher, C., _Industrial Evolution_, ch. ix; Buchholz, E.,

_Homerische Realien_, II. bk. i (Leipzig, 1881); Caspari, O.,

_Die Urgeschichte der Menschheit_, I. bk. ii. ch. 3 (Leipzig,

1877); Cherbuliez, A. E., _Simples notions de l’ordre social

à l’usage de tout le monde_, (Paris, 1881) ch. vi; Combes de

Lestrade, _Éléments de sociologie_, (Paris, 1896) bk. vi;

Cooley, C. H., _Human Nature and the Social Order_, (New York,

1902) ch. ix (analysis of leadership); Craig, J., _Elements

of Political Science_, i. (Edinburgh, 1814) 183-95; Duchesne,

L., _La conception du droit et les idées nouvelles_, (Paris,

1902) 36; Demolins, E., _Comment la route crée le type social_,

i (Paris); Farrand, L. F., _Basis of American History_, (New

York, 1904) see index s. Social organization; Featherman, A.,

_Social History of the Races of Mankind_, ii. (London, 1888)

see indices s. Classes; _Thoughts and Reflections on Modern

Society_, (London, 1894) 291-6; Frazer, J. G., _Lectures on

the Early History of the Kingship_ (New York, 1905); Freeman,

E. A., _History of the Norman Conquest of England_, iv (New

York, 1873); Frohschammer, J., _Ueber die Organisation und

Cultur der Menschlichen Gesellschaft_, (Munich, 1885) 84

f.; Funck-Brentano, Th., _Civilisation et ses lois, morale

sociale_, (Paris, 1876) chs. v-viii; Fustel de Coulanges,

_Ancient City_, bk. iv; _De l’inégalité du wergeld dans les

lois Franques_, in _Revue historique_, ii. (1876) 460-89;

Giddings, F. H., _Principles of Sociology_, (New York, 1896)

bk. III. chs. iii, iv; Ginnell, L., _Brehon Laws, a Legal

Handbook_, (London, 1894) chs. iv, v; Grave, J., _L’individu

et la société_, (3d ed. Paris, 1897) ch. ii; Gumplowicz, L.,

_Rassenkampf_ (Innsbruck, 1883); Harris, G., _Civilization

considered as a Science_, (new ed. New York, 1873) ch. vii;

Hellwald, Fr. von, _Culturgeschichte in ihrer natürlichen

Entwickelung bis zur Gegenwart_, 2 vols. (Augsburg, 1876);

Hirt, H., _Indogermanen_, 2 vols. (1905, 1907); Hittell, J. S.,

_History of the Mental Growth of Mankind in Ancient Times_,

(New York, 1893) i. 228 f.; ii. 37, 72; Hodgkin, _Italy and

her Invaders_, (2d ed. Oxford, 1892, 1896) ii, iii; Jenks,

E., _History of Politics_ (London, 1900); Kaufmann, G., _Die

Germanen der Urzeit_ (Leipzig, 1880); Krauss, F. S., _Sitte

und Brauch der Südslaven_ (Vienna, 1885); Lepelletier de la

Sarthe, _Du système social, ses applications pratiques à

l’individu, à la famille, à la société_, (Paris, 1855) i.

329 ff.; Letourneau, Ch., _Sociology based on Ethnography_,

(new ed. London, 1893) chs. vi-viii; Maine, H. S., _Lectures

on the Early History of Institutions_, (London, 1875) ch. v;

Mismer, Ch., _Principes sociologiques_, (2d ed. Paris, 1898)

63 ff.; Müller-Deecke, _Die Etrusker_, 2. vols. (Stuttgart,

1877); Rhys, J. and Brynmor-Jones, _The Welsh People_

(New York, 1900); Ridgeway, W., _Early Age of Greece_, i

(Cambridge, 1901); Ross, E. A., _Social Control_ (New York,

1901); Rossbach, J. J., _Geschichte der Gesellschaft_, 3

vols. (1868); Schrader, O., _Reallexikon der indogermanischen

Altertumskunde_, (Strassburg, 1901) 802-19; Schröder, R.,

_Lehrbuch der deutschen Rechtsgeschichte_ (4th ed. Leipzig,

1902); Schurtz, H., _Urgeschichte der Kultur_, (Leipzig, 1900)

ch. ii; Seebohm, F., _Tribal System in Wales_ (New York, 1895);

_Tribal Custom in Anglo-Saxon Law_ (New York, 1902); Seeck,

O., _Geschichte des Untergangs der antiken Welt_, I. (2d

ed. Berlin, 1897) bk. II. chs. i, iv; Seymour, _Life in the

Homeric Age_, (New York, 1907) 106 f; Skeat and Blagden, _Pagan

Races of the Malay Peninsula_, i (New York, 1906) 494-520;

Spencer, H., _Principles of Sociology_, II. (New York, 1883)

chs. iv-viii; Tarde, G., _Laws of Imitation_, trans. from

the French, (New York, 1903) 233 ff.; Traill, H. D., _Social

England_, i (New York, 1901); Tribhovandas, _Hindu Castes_,

in _Journal of the Anthropological Society of Bombay_, v

(1899-1901). 74-91; Vinogradoff, P., _Growth of the Manor_ (New

York, 1905); Waitz, Th., _Anthropologie der Naturvölker_, ii.

(Leipzig, 1860) 126-67; iii. (1862) 119-28; v. (1870) 112 ff.

CHAPTER III

THE THIRTY-FIVE TRIBES

That among the Romans the conception of property first attached to

movable objects is attested by the words “pecunia” and “mancipatio.”[262]

There was probably a period during which the citizens cultivated the

lots of arable land assigned them by the state without regarding

these holdings as property either public or private. In view of the

well-established fact that the gens was a relatively late institution, we

should for this remote period exclude the idea of gentile tenure.[263]

The land was distributed among the families according to tribes and

curiae; and when the idea of ownership extended to the soil, it took the

form of family ownership of the ager privatus and state ownership of the

public domain.[264]

The condition of tenure anterior to the conception of property in

land left little trace of itself in the language and institutions and

absolutely none in tradition. The sources declare that family ownership

existed in Rome from her foundation as well as in her earliest colonies—a

view confirmed by the comparative study of language.[265] Each family,

they assume, held two iugera—the heredium[266]—or we may more correctly

say, at least two iugera.[267] This small lot has generally been

explained[268] as the private landed property of the individual, in

contrast with the public land and with the common land of the gens, and

thus it is taken as evidence of a condition prior to the extension of

private ownership to the arable fields. Should we grant this to be the

true explanation, we might still assume that public and gentile tenure

had developed into private ownership of arable land long before Servius,

or that Servius himself converted the fields into private holdings. For

the second alternative we could find apparent support in the sources,

which have much to say of the distribution of land among the citizens by

Servius.[269] For the continued absence of private ownership after the

Servian reforms not even the shadow of an authority can be found.

But the explanation of heredium given above is by no means necessary; in

fact the sources regard it not as the only private land, but rather as

the smallest share allotted to any citizen, the rich and noble possessing

more.[270] While accordingly the wealthy man owned many iugera, the

poor man, limited to his heredium, was obliged to earn part of his

living by labor as a tenant or as a wage-earner in the field of his rich

neighbor;[271] and in the early colonies the bina iugera were granted

on the same aristocratic principle. If this is the true explanation of

heredium, the strongest argument in support of the theory of public

ownership at Rome in the late regal period is taken away; we must either

abandon the theory or relegate it to a time far anterior to the Servian

reforms. Mommsen’s assumption[272] that the sixteen oldest rural tribes

were instituted some time after the city tribes by the division of

gentile lands is untenable on other grounds. The gens which gave its

name to the tribe could not have owned all the land in the tribe; for in

that case all but the sixteen gentes would have been landless. Again,

assuming, as he does, that all the land belonged to the gentes, which

he supposes to have been exclusively patrician, we should be forced to

conclude that the division left the plebeians landless. And further, if

we bear in mind that the gens developed from the family, we must also

believe that the undivided gentile land was once a family estate, which

according to Roman usage had to be registered in some tribe, even if the

land of the gens was not so registered. Mommsen’s theory proves therefore

not only to be unsupported by the sources but actually unthinkable. In

conclusion we may safely say that though some land remained public, and

though the gens after it had come into existence owned some common land,

individual, or at most family,[273] ownership was in full force in the

earliest times of which we have knowledge.

The clearest and most detailed account of the origin of the Servian

tribes is given by Dionysius iv. 14. 1 f.: “When Tullius had surrounded

the seven hills with one wall, he divided the city into four parts, and

giving to the parts the names of the hills—to one Palatina, to another

Suburana, to the third Collina, and to the fourth Esquilina—he made the

city to consist of four tribes, whereas up to that time it had comprised

but three.... And he ordained that the men who lived in each of the four

parts should not change their abode or give in their census elsewhere.

The enlistment of soldiers also and the collection of taxes, which they

were to pay individually to the treasury for military and other purposes,

were distributed no longer among the three gentile tribes but among the

four local tribes instituted by him.... [15. 1:] And the whole country

he divided, as Fabius says,[274] into twenty-six parts, also called

tribes, adding to them the four city tribes; but Venonius is authority

for thirty-one rural tribes, which with those of the city would complete

the thirty-five of our own time. Cato, however, who is more trustworthy

than either of these two, says that all the tribes in the time of Tullius

amounted to thirty, though he does not separate the number of parts”

(into urban and rural).

A great variety of opinion has arisen regarding the original number

of the Servian tribes. Niebuhr[275] believed that Servius created in

all thirty, afterward reduced by unfortunate war with the Etruscans to

twenty. This view found supporters but was refuted by Huschke.[276] Those

who rejected it generally agreed that Servius divided the city into four

tribes and the country into districts, regiones, pagi.[277] Mommsen[278]

gave a new phase to the theory of the subject by assuming that the four

so-called city tribes, which all the sources agree in ascribing to

Servius,[279] included the country as well as the city. According to

this hypothesis Alba[280] and Ostia,[281] for instance, belonged to the

Palatine tribe. His opinion has found wide acceptance.[282] Afterward

changing his mind, he asserted that the four urban tribes were confined

within the pomerium—a view which now seems to be established beyond

doubt.[283] With this final position of Mommsen the creation of theories

as to the number and limitations of the Servian tribes has not been

exhausted; for against the view that Servius instituted only the four

urban tribes may be placed that of Pais,[284] who assigns their origin to

the censors of the year 304. The theory of Pais implies that the sixteen

rural tribes which bore gentile names were far older than the four urban

tribes.

Light will be thrown on this obscure subject by an inquiry into the

relation of the sources to one another. It seems certain that Fabius

derived his information concerning the tribes and the entire centuriate

organization from the “discriptio centuriarum”—a document in the censors’

office. Though ascribed to Servius Tullius as author,[285] it set forth

the centuriate system as it existed in reality before the reform—that

is in the time of the first war with Carthage.[286] It was this late

form of the centuriate organization which Fabius had in mind. He must

have been prevented, however, from ascribing to Servius the institution

of all the thirty-three tribes then existing, by the recollection that

two tribes were added as recently as 299 from territory too far from

Rome to have formed a part of her domain under Servius; and perhaps

the curiate organization led him to favor the number thirty. He made

Servius the author of thirty tribes, accordingly, in spite of the fact

that this number was not reached till 318. His error is not more absurd

than the ascription to Servius of the whole centuriate organization as

it stood at the opening of the First Punic War, or the assumption that

in the first Servian census were enrolled eighty thousand men fit for

military service.[287] Cato, who also states the original number as

thirty, without separating them into rural and urban,[288] may have been

influenced by Fabius, though it is likely that he drew from the same

source. Vennonius in making Servius the author of all thirty-five tribes

but slightly exceeds the absurdity of earlier writers.[289] Evidently

Fabius and Cato were the sources for all future annalists. While

depending on them, Varro seems to have noticed the error of ascribing

twenty-six rural tribes to Servius, as there were but seventeen of this

class before 387. To avoid the difficulty and at the same time to retain

the Fabian number, he supposed that the country districts of Servius were

not yet tribes but the regiones from which the tribes were afterward

formed[290]—a superficial explanation in the true Varronian style.[291]

Following Varro, however, later authorities generally speak of the four

urban tribes of Servius without mentioning those of the country.[292] So

Dionysius, after referring to the four city tribes, proceeds to describe

their character and functions, as though these were all the tribes then

existing.[293] Thus far he depends upon Varro. Fortunately, however,

he gained from Fabius the information that there were also twenty-six

rural tribes, his description of which[294] is slightly troubled by the

Varronian notion that these country districts were not so much tribes as

regiones, πάγοι, but which served all the purposes of tribes including

the taking of the census.[295]

The various contradictory statements of the ancients regarding the

original number of Servian tribes can now be appreciated at their

respective values. In the course of the discussion it has become evident,

too, that Fabius and Cato, the sources of later annalists, had no tenable

ground for their assumption of thirty original tribes. Had they examined

the records, perhaps the succeeding parts of their own chronicles, they

would have found that before 387 there could have been only twenty-one

tribes in all.[296] A less certain indication of the admission of

one or possibly two tribes still earlier in the republic may have

existed;[297] but here we reach the extreme limit of their knowledge.

Any investigation of the number in the regal period, whether by the

ancients or by the moderns, must rest not upon contemporary records but

upon inference pure and simple. We may inquire, accordingly, whether

the view of Mommsen[298] and Meyer[299] that the four city tribes were

created first and existed for a time before the institution of the rural

tribes, having no trustworthy foundation in the sources, can be deduced

from our knowledge of the general conditions of the time. We must by all

means avoid the supposition of Mommsen[300] that in the time of Servius

there was no private property in land outside of the city.[301] If then

we bear in mind two points which Mommsen has himself established, (1)

that the local tribe was an aggregate of private estates,[302] (2) that

the four urban tribes of Servius were limited to the city,[303] we must

conclude that in the time of Servius the country estates were registered

in rural tribes—in other words that Servius instituted rural as well

as urban tribes.[304] The view of Meyer that all the citizens lived

in the city and the dependents in the country[305]—which would afford

a ground for assuming the urban tribes to have been earlier than the

rural—has no basis either in institutions or in tradition. If originally

the country was all-important,[306] and if at the dawn of history we

find the country and city politically equal, as is actually the case,

we have no motive for the insertion of an intermediate stage in which

the city was all-important. There was indeed a tendency toward the

concentration of political power within the city, but it did not advance

beyond the equalization of city and country.[307] To maintain Meyer’s

view we should be obliged to complicate the early history of Rome with

two revolutions—one by which the city gained supremacy over the country,

and the other in which the supremacy was lost. It is mainly to defend the

early history of the comitia, and of the constitution in general, against

this complication that the present discussion of the early land tenure

and of the origin of the Servian tribes is offered.

The original number of tribes, as has been stated, is unknown. It was

increased by the acquisition of territory. Possibly the annalists found

an obscure trace of the admission of the sixteenth rural tribe—the

Claudia—in 504. To that year Livy assigns the coming of Attius Clausus

with his host of clients, who were formed into the Claudian tribe.[308]

Wissowa[309] suggests that the immigration of the Claudian gens, the date

of which did not appear in the original tradition,[310] was arbitrarily

assigned to the year in which was recorded the admission of the tribe.

This conjecture is supported by the situation of the Claudia, which would

place it among the latest of the twenty.

With more confidence we may assign the admission of the seventeenth rural

tribe—the twenty-first in the entire list—to 495.[311] It must have been

the Clustumina.[312] We are certain that there were only twenty-one

till 387, when four new tribes were formed, bringing the number up to

twenty-five.[313] The twenty-sixth and twenty-seventh were admitted in

358,[314] the twenty-eighth and twenty-ninth in 332,[315] the thirtieth

and thirty-first in 318,[316] the thirty-second and thirty-third in

300[317], the thirty-fourth and thirty-fifth in 241.[318] To the year

90 that number is known to have remained unchanged, and the evidence of

a temporary increase during the Social War is obscure. On this point

Appian[319] states that “the Romans did not enroll the newly admitted

citizens in the existing thirty-five tribes for fear that, being more

numerous, they might outvote the old citizens in the comitia; but by

dividing them into ten parts (?) they made new tribes, in which the new

citizens voted last.” This view of an increase in number is confirmed by

a statement of Sisenna[320] as to the creation of two new tribes at about

that time. Velleius[321] however informs us that the new citizens were

enrolled in eight tribes. In the object of the arrangement he agrees with

Appian. Next he mentions the promise of Cinna to enroll the Italians in

all the tribes. From the connection we should naturally infer that in

the opinion of Velleius the new citizens were enrolled before Cinna in

eight old tribes; and yet it is difficult to understand how the assembly

could be persuaded to visit any group of rural tribes with this disgrace

and political disability.[322] As the authority of Sisenna, if not that

of Appian, compels us to accept the fact of new tribes, it is better to

interpret Velleius in that light.[323] We may suppose then that the

eight tribes which he mentions were provided for by the Julian law of 90;

and we must accept the statement of Sisenna that in 89 the Calpurnian

law “ex senati consulto” created two other new tribes, in which were to

be enrolled the citizens admitted under this law. Thus we could account

for the ten (?) new tribes mentioned by Appian. As regards the Lucanians

and the Samnites, who held out obstinately against Rome, the same

historian[324] states that they were respectively enrolled in tribes, as

in the former instances. He does not inform us, however, that for this

purpose other new tribes were instituted. At all events there seems to be

no essential disagreement among our sources; and we have no reasonable

ground for doubting an increase, though we may remain uncertain as to the

number added.[325]

The arrangement was only temporary. In 88 Sulpicius, tribune of the

plebs, carried a law containing a provision for the distribution of the

new citizens and the libertini among all the thirty-five tribes.[326]

His plebiscite was annulled by the senate on the ground that it had

been passed by violence;[327] but the provisions contained in it were

afterward legalized by a senatus consultum, and it was finally carried

into effect by Cinna as consul in 84.[328] This settlement of the

question was approved by Sulla[329] for all the Italians excepting

the Marsians and the Paelignians, who were enrolled in one tribe—the

Sergia.[330]

The nature of the tribes may be inferred from their object. The

intention of the organizer was to introduce the Greek military system,

comprising heavy and light infantry, in which the kind of service to be

performed depended upon financial ability to provide equipments.[331]

Seeing that a classification of citizens with respect to property was

necessary for this purpose, Servius instituted the tribes as a basis

for the census. That they contained the ager privatus only is indicated

by the exclusion from them of the Capitoline and Aventine hills.[332]

Their local character is established by the concurrent testimony of

ancient writers.[333] Yet even in the beginning they could but roughly

be described as districts, for they excluded all public land and all

waters and waste places claimed neither by individuals nor by the

government. They retained the approximate character of districts so long

only as the territory of annexed communities continued to be formed

into new tribes. The process came to an end in 241; and it was as early

at least as this date that the Roman colonies, not originally in the

tribes, were incorporated in them.[334] Thereafter the annexation of

new territory tended more and more to render the tribes geographically

indeterminate.[335] The process was far advanced by the admission (90-84)

of the Latins and Italians with their lands to the existing tribes,[336]

which were further enlarged in the imperial period by the incorporation

of provincial communities.[337] As consisting of lands, though no longer

necessarily adjacent, they were still considered local.[338]

The tribe was also a group of persons; in fact the word applies far more

frequently to persons than to territory.[339] During the early republic

a considerable degree of harmony was maintained between the two aspects

of the institution (1) possibly by a restriction on the transfer of

residence,[340] (2) by the change in membership from tribe to tribe,

through the censors, on the basis of a transfer of domicile, (3) by the

assignment of new citizens to the tribe in or near which they had their

homes, (4) by the creation of new tribes for new citizens who did not

live in or near the existing tribes. This harmony experienced its first

serious disturbance through the enrolment of the landless, irrespective

of domicile, in the urban tribes in 304,[341] but continued to such

a degree that a hundred years later the rural voters generally still

resided in their own tribes.[342] In the last century of the republic

the personal tribe, emancipated from the local, depended solely on

inheritance and the will of the censors.[343]

The original composition of the personal tribe is determined by its

purely military object. It comprised accordingly those only who were

liable to service in war. From the early Roman point of view those

citizens were qualified who found their livelihood in agriculture.[344]

Not all landowners were enrolled in the tribes; for Latin residents,[345]

freedmen,[346] widows and orphans,[347] all of whom might possess land,

lacked membership. Those proprietors, too, were excluded whom the

censors assigned to the aerarii as a punishment. Tribesmen were all the

other landowners—adsidui[348] et locupletes[349]—together with the male

descendants of military age under their potestas.[350]

Another object of the tribes, referred to Servius by our sources,

was the collection of taxes.[351] We know that they afterward served

this purpose; and the ancient writers, who could have had no direct

knowledge of the intentions of Servius but who assigned to him without

hesitation all the later developments of his organization, were in

this case especially misled by their false derivation of tributum from

tribus or _vice versa_.[352] A brief study of the facts in the case will

prove their inference to be wrong. The most obvious consideration is

that had Servius intended the tribes for the levy of taxes as well as

for military purposes, he would have included all who were subject to

taxation as well as all who were liable to service in the army, whereas

in fact he admitted those only who were to serve. It is to be noted

that primitive Rome imposed no regular direct taxes on the citizens in

general. Every man equipped himself for war even after the introduction

of the phalanx;[353] doubtless at first the knights provided their

own horses;[354] and in short campaigns the soldiers carried their

provisions from their own farms.[355] Fortifications and public buildings

were erected by forced task-work. The king supported himself partly by

gifts from his subjects and partly from the public property, including

land.[356] Other early sources of revenue were tolls levied for the

use of harbors, boundaries, temples, bridges, roads, sewers, and salt

works.[357] In time the idea arose, too, that the person who did not

perform military service should help with his property in the defence of

the country. The estates of widows and orphans were accordingly taxed

to support the horses of the knights.[358] Those men, also, who were

exempt from service because they possessed no land[359] and yet had other

property were required to pay on it a regular tax. From this connection

with the public treasury (aerarium) they were termed aerarii. This class

comprised shopkeepers and merchants. Sometimes the censors assigned to

it as a punishment men who owned land. The fact that such persons were

at the same time removed from their tribes is sufficient proof that the

aerarii were originally outside these associations.[360] The cives sine

suffragio, or Caerites, after this class had come into existence in 353,

were like the aerarii in (1) that they did not belong to the tribes, (2)

that they paid a regular tax, (3) that men were placed on their list as

a punishment. They may accordingly be regarded as a special class of

aerarii, enrolled as they were in a distinct list.[361] Whereas the

cives sine suffragio either wholly lacked the franchise, as the phrase

implies, or at most had but the right of the Latins,[362] the other

aerarii must have voted in the proletarian century.[363]

The ordinary taxes sufficed for the usual light expenses; but in case of

especial need an extraordinary tax was imposed upon the citizens. It was

called tributum from tribuere, “to apportion,” because it was distributed

among the citizens in proportion to their ratable property.[364] We hear

of such a tax levied for ransoming the city from the Gauls[365] and

another for the building of a wall;[366] but the most common use was for

the payment of soldiers, hence the tributum was thought of primarily as

a war tax.[367] For this reason tributum came to be correlative with

stipendium.[368] It was not often imposed before the introduction of pay

in 406.[369] Even then it was not levied every year; it was sometimes

refunded when the condition of the treasury permitted; and it fell into

disuse after 167.[370] As it was imposed on those only who were liable

to military duty,[371] the tribe lists were followed in its collection,

and in this sense we may say that it was collected tributim.[372] The

work was done by state functionaries, as the tribe, so far as we know,

had neither fiscal officers[373] nor a treasury; and possessing no

property, it could not be held financially responsible.

An epoch in the history of the tribes was made in 312 by Appius Claudius

Caecus the censor, who enrolled the landless citizens, proletarians

as well as aerarii, in the existing thirty-three tribes without

discrimination.[374] Cives sine suffragio were alone excepted.[375]

By giving the landless the upper hand in the assemblies this measure

roused the animosity of the proprietors, and thus endangered the peace

of the state. In order to soothe the excited feelings of the better

class, Q. Fabius Rullianus, censor in 304, supported by his colleague

Decius, removed the landless from the rural tribes; but not to deprive

them wholly of tribal privileges, he registered them in the four urban

tribes. Hence his measure is spoken of as a compromise. Thereafter the

landholding and hence more respectable citizens were preferably enrolled

in the rural tribes,[376] whereas the landless were confined to those of

the city.[377] It was a permanent gain that henceforth tribal membership

was a test of perfect citizenship. The censors still had the power to

transfer a man from one tribe to another, for instance, from a rural to

an urban tribe; but they could not exclude him wholly from the tribes,

for that would be tantamount to depriving him of the citizenship.[378]

There were still aerarii; individuals and sometimes large groups of

citizens were still assigned as a punishment to this class, which,

however, was henceforth included in the tribes of the city.[379]

Although the ordinary urban tribesmen were usually exempt from military

duty, the aerarii were required to serve, at times under especially

hard conditions,[380] and were not disqualified for office.[381] In

registering them in the tribes Claudius made them, like the landowners,

liable to military service and to the tributum according to their means.

To effect this object he necessarily assessed their personal property on

a money valuation; and in order to treat all tribesmen alike, he must

have changed the terms of valuation of the landholders’ estates from

iugera to money.[382]

Niebuhr, B. G., _Römische Geschichte_, i. 422-50, Eng. 200-12;

Schwegler, _Römische Geschichte_, I. bk. xvii; Huschke, Ph.

E., _Verfassung des Königs Servius Tullius_, ch. iii; Ihne,

W., _History of Rome_, i. 62, 114; Nissen, H., _Templum_,

144 ff.; _Italische Landeskunde_, ii. 503 f.; Beloch, J.,

_Italischer Bund unter Roms Hegemonie_, ch. ii; Soltau, W.,

_Altröm. Volksversammlungen_, 375-548; Meyer, E., _Ursprung

des Tribunats und die Gemeinde der vier Tribus_, in _Hermes_,

xxx (1895). 1-24; controverted by Sp. Vassis, in _Athena_,

ix (1897). 470-2; Neumann, K. J., _Grundherrschaft der röm.

Republik_; Siebert, W., _Ueber Appius Claudius Caecus_;

Mommsen, Th., _History of Rome_, bk. I. ch. vi; _Röm.

Tribus_; _Röm. Staatsrecht_, iii. 161-98; _Abriss des röm.

Staatsrechts_, 28-36; Marquardt, J., _Röm. Staatsv._ ii.

149-80; Willems, P., _Droit public Romain_, 40 ff., 98 ff.;

Mispoulet, J. B., _Institutions politiques des Romains_, i.

37-42; _Études d’institutions Romaines_, 3-48; Lange, L., _Röm.

Altertümer_, i. 501-22, and see index s. Tribus; Madvig, J. N.,

_Verfassung und Verwaltung des röm. Staates_, i. 100-8; Herzog,

E., _Geschichte und System der röm. Staatsverfassung_, i. 39,

101 ff., 1016-31; Grotefend, C. L., _Imperium romanum tributim

descriptum_; Kubitschek, J. W., _De romanorum tribuum origine

ac propogatione_; _Imperium romanum tributim discriptum_;

Pauly-Wissowa, _Real-Encycl._ i. 674-6: Aerarius (Kubitschek);

682-4: Aes equestre (idem); 780-93: Ager (idem); iii. 1281-3:

Caere (Hülsen); 2650 f.: Claudia (Wissowa); iv. 117 f.:

Clustumina (Kubitschek); Daremberg et Saglio, _Dict._ i. 125:

Aes equestre and hordearium (Humbert).

CHAPTER IV

THE CENTURIES AND THE CLASSES

The ancient authorities represent Servius Tullius as the founder of

an organization at once military and political—on the one hand the

army composed of classes and centuries, and on the other the comitia

centuriata. According to Livy[383]—

“From those whose rating was 100,000 asses or more he made 80

centuries, 40 of seniors and 40 of juniors, and termed them all

the _first_ class. The seniors were to be ready for guarding

the city and the juniors were to serve in the field. The arms

required of them were a helmet, round shield, greaves, and

cuirass,—all bronze,—for the protection of the body. Their

offensive weapons were a spear and a sword. To this class were

added two centuries of sappers who were to serve without arms.

Their duty was to convey the engines of war. The _second_

class was made up of those whose rating was between 75,000 and

100,000 asses, 20 centuries of seniors and juniors together.

They were equipped with an oblong shield (scutum) instead of

a round one, and they lacked the cuirass, but in all other

respects their arms were the same. The minimal rating of the

_third_ class was 50,000 asses, and the number of centuries

was the same with the same distinction of age, and there was

no change in arms excepting that greaves were not required. In

the _fourth_ were those appraised at 25,000 asses. They had the

same number of centuries but their arms were changed, nothing

being assigned them but a spear and a long javelin. The _fifth_

class was larger, composed of 30 centuries. They carried

slings and stones for throwing. Among them were counted the

accensi, the hornblowers, and the trumpeters, 3 centuries. This

class was appraised at 11,000 asses. Those whose rating was

less formed one century exempt from military service. Having

thus armed and organized the infantry, he levied 12 centuries

of equites from among the chief men of the state. Also the

3 centuries instituted by Romulus he made into 6 others of

the same names as those under which the three had originally

been inaugurated.” Afterward Livy speaks of the votes of the

centuries in the comitia.

The ultimate source of this description, as well as of the similar

account given by Dionysius, is the censorial document already

mentioned,[384] sometimes termed the “discriptio centuriarum,”[385]

sometimes “Commentarii Servi Tullii”[386] on the supposition that Servius

was the author. In reality it belonged to the Censoriae Tabulae[387]

of the period immediately following 269.[388] The document gave a list

of the classes, centuries, and ratings, and furnished directions for

holding the centuriate assembly. As the military divisions and equipments

mentioned by Livy in the passage above had been discarded long before

this date,[389] they could not have been described in the document.

The account of them found in our sources must, therefore, have been

supplied by antiquarian study.[390] The annalist who first used these

Tabulae in the censorial archives was Fabius Pictor.[391] Whether Livy

and Dionysius derived their account directly from him or through a later

annalist cannot be determined.[392] Though Cicero’s source may ultimately

have been the same, he seems to have depended largely on his memory and

is chronologically, though not in substance, less exact. In assigning

seventy rather than eighty centuries to the first class he most probably

has in mind a stage of transition from the earlier to the reformed

organization.[393]

A brief analysis of this description, as presented by Livy or Dionysius,

will prove that it could not apply at the same time to an army and a

political assembly: (1) The century of proletarians, which formed a part

of the comitia, and which according to Dionysius was larger than all the

rest together, was exempt from military service.[394] (2) The unarmed

supernumeraries termed accensi velati must in their military function

have lacked the centuriate organization, as will hereafter be made

clear.[395] (3) The musicians and the skilled workmen who accompanied

the army must also be eliminated from the centuriate organization of

the army.[396] (4) The seniors, too, lacked the centuriate military

organization.[397] (5) Thus the only pedites in the original centuriate

system were the juniors. Even the military century of juniors was not

in the beginning strictly identical with a voting century; and as

time progressed, the one group diverged more and more widely from the

other.[398]

Chiefly from these facts, which will become clear in the course of

this study, we are warranted in concluding that the army was at no

time identical with the comitia centuriata. As one was necessarily an

outgrowth of the other, the military organization must have been the

earlier. If therefore the original form of the centuriate system is to

be referred to Servius Tullius, he will be considered the organizer

of the phalanx, which the military centuries constituted,[399] not of

the comitia.[400] This result harmonizes with the view of the ancient

writers that the comitia centuriata exercised no functions—hence we have

a right to infer that it had no existence—before the beginning of the

republic.[401]

The following sketch of the development of the Roman military system from

the earliest times to the institution of the manipular legion includes

those features only which are essential to an understanding of the origin

and early character of the centuriate assembly. The view maintained

in this volume is, as suggested in the preceding paragraph, that the

comitia centuriata in the form described by Livy and Dionysius developed

from the early republican military organization, which was itself the

result of a gradual growth. Reference is made to equipments chiefly for

the purpose of throwing light on the relation of the Roman to the Greek

organization and of the various Roman military divisions to one another.

I. _The Primitive Graeco-Italic Army and the Origin of the Phalanx_

Recent research has brought to light a period of Italian history during

which the military system of the Latins and Etruscans closely resembled

that of the Mycenaeans, the former doubtless being derived in large

part from the latter.[402] The nobleman,[403] equipped in heavy armor,

rode forth in his chariot[404] to challenge his peer among the enemy to

personal combat. The mass of common footmen were probably grouped in

tribes and curiae (Greek phratries, brotherhoods),[405] as in Homeric

Greece[406] and among the early Europeans[407] before the development of

an organization based on a numerical system. The arms of the footmen must

have been lighter, and probably varied with the individual’s financial

resources. These common troops could have had no special training or

discipline, as they counted for little in war.[408] Yet in the Homeric

age of Greece some attempt was made to keep the fighters in line, and to

prevent the champions from advancing beyond it to single combat.[409]

A similar tendency to even, rhythmic movement may be inferred for

the Latin army.[410] The great innovators in this direction were the

Lacedaemonians, to whom the honor of inventing the phalanx is chiefly

due.[411] This improvement, which made an epoch in European warfare,

could not have been later than the eighth century B.C. The phalanx was a

line, several ranks deep, of heavy-armed warriors, who moved as a unit

to the sound of music.[412] The depth varied as the occasion demanded;

it was not necessarily uniform throughout the line, but for Lacedaemon

eight may be considered normal.[413] The heavy-armed trooper carried

a large shield, which covered the entire body, a helmet, and greaves;

his offensive weapons were sword and spear.[414] Tyrtaeus mentions also

a coat of mail though not as an essential part of the equipment.[415]

The metal of their defensive armor was mostly bronze; their swords and

spear-points were probably iron, which the mines of Laconia abundantly

supplied.[416] Although it is well known that the phalanx was composed

of smaller units, the original organization can only be conjectured. It

is not unlikely that in the beginning there were tribal regiments,[417]

divided into companies of fifty or perhaps a hundred,[418] which were

made up of still smaller groups. The military age extended from the

twentieth to the sixtieth year.[419]

The phalanx was readily adopted by other Greek states, which modified it

to suit their several conditions. In Athens and probably elsewhere the

army had a tribal organization,[420] but a census was introduced in order

to determine who possessed sufficient wealth for service on horseback, in

the heavy infantry, and in the light infantry; and when once the census

classes were adopted, it was easy to extend them to political uses. In

this way the four property classes at Athens, probably instituted about

the middle of the seventh century B.C.,[421] became under Solon if not

earlier a basis for the distribution of offices and other political

privileges. Naturally the Greeks of Sicily and Italy adopted the phalanx,

and it is reasonable to suppose that the Romans derived it, through the

Etruscans,[422] from one of these neighbors.

II. _The Servian Army_

As the heavy troops of the Greek line were all armed alike, the Romans

probably at first composed their phalanx in a similar way, without

gradations of equipment. The complex system of census groupings in the

army as we find it immediately before the institution of the manipular

legion could only have resulted from a long development. The statement

last made finds justification in the fact that the term classis[423] was

originally limited to the first or highest census group, all the rest

being “infra classem.”[424]

Not only was the organization like that of the Greeks, but the arms, too,

were in the main Greek. The soldiers of the classis were equipped with

helmet, shield, greaves, spear, and sword; as they wore a cuirass, they

used a large round Etruscan buckler[425] instead of the man-covering

Dorian shield. They were grouped in centuries,[426] forty of which

composed the classis in the fully developed phalanx.[427] The age of

service of the juniors, who alone fought in the field, extended from the

completed seventeenth to the completed forty-sixth year,[428] whereas the

seniors from the forty-seventh to the sixtieth year formed a reserve.

A still nearer connection can be found between the Roman and the Greek

horsemen. As is proved by archaeology, the earliest Greek knights had

no specialized weapons or armor and were not accustomed to fight on

horseback, but were heavy infantry who used their horses simply as

conveyance.[429] The same is true of the earliest Roman equites, whose

equipment closely resembled that of the Greek horsemen. On account of

their swiftness they were primitively called celeres.[430] Although these

mounted footmen are generally known as equites, which in this sense may

but loosely be translated knights, the Romans did not institute a true

cavalry till the period of the Samnite wars.[431] It is a curious fact

that some horsemen, Roman as well as Greek, were provided each with two

horses,[432] one for the warrior and the other for his squire,[433]

and that the mounted soldiers of Etruria were in these respects the

same.[434] A further resemblance between the earliest Greek and Roman

horsemen lies in the fact that they were noble.[435]

In their account of the growth of the mounted service during the regal

period the ancient authorities show great inconsistencies. It seems

probable that the early annalists pictured the increase in the knights

in a way analogous to that of the senate: at first Romulus formed a

troop, or century, from the Ramnes; afterward a second was added from

the Tities; and still later the Luceres furnished a third.[436] Then

Tarquinius Priscus doubled the number, making six in all, and Servius

finally increased it to eighteen centuries. This simple development,

itself a reconstruction, was complicated by the desire of the historians

to make the number of knights under Servius agree with the number

under Augustus, given by Dionysius[437] at about 5000; hence the

assumption of 200 or even 300 knights to the century as early as the

reign of Romulus.[438] It is possible by clearing away these evident

misconceptions to discover the approximate truth.

When the chariot gave way to the horseback rider is not definitely

known; at all events the change seems to have taken place under

Hellenic influence, and could hardly therefore have been earlier than

the beginning of the seventh century B.C.[439] The idea of the sources

is that there came to be three troops of horsemen, furnished by the

tribes,[440] as well as three regiments of foot, that before Servius

the number of troops of horse was doubled, and that the six troops thus

formed were named accordingly after the tribes Ramnenses, Titienses,

and Lucerenses priores and posteriores respectively.[441] The priores

had each two horses, the posteriores one.[442] Hence the essential

difference between these divisions was in rank and wealth rather than in

the relative time of their institution. Long after Servius both divisions

continued to be patrician.[443] As the centuriate organization of Servius

applied to the infantry, the cavalry remained little affected by it. The

six troops with their old names survived, and eventually became a part

of the comitia centuriata. In the military sphere, however, the troop no

longer retained its identity; but the whole body was divided into twenty

turmae, each composed of three decuries commanded by decurions.[444]

When with the institution of the republic the phalanx was split into

two legions, ten turmae of cavalry were assigned to each legion.[445]

As in historical time the number of horsemen to a legion did not exceed

300,[446] and as we have no reason to suppose that at an earlier period

this arm of the service was proportionally stronger, we may conclude that

in the Servian phalanx, or double legion, the number did not exceed 600.

From the foregoing discussion it appears clear that the Servian military

system rested upon a division of the citizens into four groups, closely

corresponding to the Athenian census divisions: (1) the equites

priores, like the pentacosiomedimni, (2) the equites posteriores, like

the hippeis,[447] (3) the classis, like the zeugitae, (4) the light

troops infra classem, like the thetes. The distinction between priores

and posteriores rested not upon an assessment but upon a less precise

difference in wealth, whether determined by the individual concerned

or by the state we cannot know; it represented, too, a gradation of

nobility. The distinction between the knights and the classici was one of

rank; that between the classis and the soldiers infra classem was alone

determined by the census.

III. _The Development of the Five Post-Servian Military Divisions on the

Basis of Census Ratings_

This arrangement was by no means final. Further changes were made in both

foot and horse which were to have a bearing on the organization of the

comitia centuriata. After a time[448] two additions of men less heavily

armed than the classici were made to the phalanx, whether simultaneously

or successively cannot be determined. There were now forty centuries of

classici, and the additions comprised ten centuries each, the second

less heavily armed than the first, though they may both be considered

heavy in contrast with the light troops. Perhaps the state according to

its ability made up the deficiency in the equipment, so as to render

the entire phalanx as evenly armed as possible.[449] It numbered sixty

centuries of heavy infantry, composed of three grades which depended

upon the census rating.[450] The light troops were also grouped in two

divisions on the same principle. The first comprised ten centuries;

originally the second may have contained the same number, in which

case four were afterward added to make the fourteen known to exist in

the fully developed system.[451] There were five divisions of infantry

amounting to eighty-four centuries of a hundred men each. Undoubtedly the

growth of the army to this degree of strength was gradual, though the

successive steps cannot be more minutely traced.[452]

In making the levy the military tribunes selected the soldiers from

the lists of tribesmen, taking one tribe after another as the lot

determined.[453] The early Romans must have striven to distribute the

population as equally as possible among the tribes in order to render

them approximately equal in capacity for military service. As long as

this equality continued, the officials could constitute the army of

an equal number of men from each tribe. These considerations explain

the close relation in early time between the number of tribes and of

centuries as well as the suggestions offered by our sources as to an

early connection between the centuries and the tribes.[454] While there

were but twenty tribes we may suppose that the legion comprised but 4000

men, which was raised to 4200 when the twenty-first tribe was added. In

this way can we account for the number of centuries to the legion. If

but half the available military strength was required, the magistrates

might draw by lot ten tribes from which to make the levy.[455] It was an

easy matter as long as the heavy troops were limited to the classis;[456]

but when two other ratings were added, and when meantime the tribes

must have grown unlike in population, it became practically impossible

to maintain for each rating a just proportion from the tribes;[457] and

perhaps this was the chief reason for the modification in the method of

recruiting. When therefore the tribes were increased to twenty-five, and

it was deemed inexpedient to make a corresponding enlargement of the

legion,[458] a new principle was adopted for the levy: after determining

the ratio between the number of men needed and the whole number

available, the officers drew from each tribe a number proportionate

to its capacity.[459] It would agree well with all the known facts to

suppose that the addition of the second and third ratings, followed by

a more thorough organization of the light troops, belongs to the early

republic (509-387),[460] when Rome needed all her strength in her life

and death struggle with hostile neighbors. At the same time the purchase

of armor and the increased burden of military duty would help account

for the desperate economic condition of the poorer peasants of that epoch.

The proportions of the five ratings—20-15-10-5-2½ or 2—to be discussed

hereafter,[461] suggest an explanation of their origin. It would be

reasonable to assume that the normal holding of the well-to-do citizen

was a twenty-iugera lot and that the Servian phalanx was composed

of possessors of that amount, the light-armed being their sons and

others distinctly inferior in wealth. In course of a few generations

as the population grew, with no corresponding territorial expansion

or colonization or industrial development, and with only a limited

conversion of waste to arable land, many of the lots became divided

and subdivided. The result was a weakening of the phalanx at a time

when the state was in the most pressing need of military resources.

The institution of the five ratings as a basis for the reorganization

of the army was a temporary expedient for meeting the crisis, to be

superseded not long afterward by a better system founded on military

pay. In all probability the introduction of the five ratings, or at

least the beginning of the movement in that direction, should be closely

connected with the institution of the censorship in 443 or 435.[462] The

supposition would give us a sufficient reason for the creation of this

new office at that time, and the strengthening of the army would explain

the success of the Romans in the wars immediately following.

How the five ratings were arrayed in battle is unknown. If the front

counted a thousand men (milites),[463] the classis comprised four

ranks (4000), the second and third ratings one rank each, making in

all six ranks of heavy troops (6000).[464] Twenty centuries could be

drawn from the two ratings of light troops to complete the eight ranks

when needed.[465] But the Romans undoubtedly exercised the same good

judgment as the Lacedaemonians in varying their formation to suit the

emergency;[466] and for that reason it is wrong to assume the same depth

for all occasions or an even depth for any one occasion. The management

of long lines one-man deep must have been extremely difficult, if not

impossible.[467] The explanation already suggested, that the state

supplied the deficiency in equipment,[468] would greatly simplify the

case, for there would then exist no need of arraying the census groups in

successive lines. Whatever may have been the tactic arrangement, it did

not continue long, for soon after the introduction of regular pay, about

400 B.C.,[469] the distinction between the ratings ceased to have an

importance for military affairs.

IV. _The Question as to the Connection of the Supernumeraries and the

Seniors with the Military Centuries_

A number of supernumeraries termed accensi velati accompanied the army.

The epithet accensi proves them to have been outside the five ratings,

while velati describes them as wearing civilian dress. We are informed

by the sources that they carried water and weapons to the fighting men,

stepped into the places of the dead and wounded, and acted as servants

to the lower officers.[470] These men could not have been organized

in centuries,[471] for they were drawn up in the rear behind the

light troops; they extended along the entire breadth of the army,[472]

and must have greatly exceeded one hundred or even two hundred. The

musicians,[473] too, who accompanied the army were not grouped in two

centuries, for they were distributed throughout the army.[474] There is

no reason for assuming exactly two hundred musicians[475] or exactly

two hundred workmen,[476] or for supposing that any of the men of this

description were organized in centuries in the army. Reasoning in a

similar way in regard to the seniors, we conclude that their organization

in centuries could not have belonged to the original Servian system. A

military century, as the name indicates, must have contained a hundred

men.[477] But in any static population there are three times as many men

between seventeen and forty-six as between forty-six and sixty[478]—in

Rome there were three times as many juniors as seniors; and as the

number of junior and senior centuries was equal, the latter could have

contained only about thirty-three each, on the supposition that the whole

male population between seventeen and forty-six years was organized in

centuries.

The mere fact that the senior century contained so few men suggests that

it was not a military institution. This impression is confirmed by the

information that the seniors were reserved for the defence of the city,

while the juniors took the field in active service.[479] When we reflect

that even in the early republic the seniors could not often have been

called on for defence, as the juniors were ordinarily sufficient for the

purpose,[480] that the manning of the walls did not necessarily require a

division into companies or an equipment like that for field service, and

that when it was thought expedient for the seniors to serve in centuries

or cohorts, their enrolment in these companies is especially mentioned,

our conviction that the senior centuries did not belong to the original

Servian organization grows into a certainty.[481]

V. _Conclusions as to the Servian and Early Republican Organizations;

Transition to the Manipular Legion_

In our search for the Servian and post-Servian schemes of military

organization we found it necessary to eliminate from the discriptio

centuriarum all the centuries of pedites with the exception of the

juniors. But even a military century of juniors could not have remained

identical with a voting century; for the former comprised a fixed number

and the same for all ratings, whereas in the comitia of historical time

the centuries varied greatly in size, many of them containing far more

than a hundred men each. In the four lower classes each century contained

as many men as the entire first class;[482] and individuals constantly

shifted from one class to another as their several properties increased

or diminished.[483] It is a mistake, therefore, to think of the army as

identical with even the junior centuries of the comitia.[484] Doubtless

when the Servian army was first introduced, its organization was made

to fit actual conditions, so that all who were liable to service found

their place in it; but as the political assembly of centuries was

instituted many years afterward, the army with its various enlargements

could have kept meanwhile no more than approximate pace with the changing

population, and at no time could it include the physically disqualified,

who nevertheless had a right to vote in the junior centuries of the

political assembly. On the other hand there were soldiers in the army too

young to be in the comitia centuriata.[485]

The conclusion as to the strength of the army in the first years of the

republic, before the latter had acquired any considerable accession of

territory, corresponds closely with a moderate estimate of the population

under the conditions then existing. The area of the state was about 983

square kilometers (equivalent to 379.5 sq. mi. or 242,899 acres).[486]

Estimating the population of this agricultural community at its maximum

of sixty to the square kilometer, we should have less than 60,000 for the

entire area.[487] The number of men from seventeen to sixty, the Roman

military age, should be about thirty per cent of the population[488]—less

therefore than 18,000. If the ratio of juniors to seniors was about three

to one,[489] we should have about 13,000 juniors to 5000 seniors. But a

deduction must be made for slaves and for the physically incapacitated,

leaving perhaps 9000 or 10,000 juniors and 3000 or 4000 seniors. These

results are not unreasonable. Making allowance for several hundred

supernumeraries,[490] we should then have no more than enough juniors to

fill the eighty-four centuries of foot and the six troops of horse. It is

clear, therefore, that all available forces were included in the army and

that the junior centuries could not have contained more than a hundred

men each.

Even before the phalanx had thus been brought to perfection,

modifications were being made in the equipment under the influence of the

Gallic invasion.[491] The introduction of pay, about 400 B.C., as has

been said,[492] broke down the distinction of equipment based on degree

of wealth, and not long afterward, probably in the time of the Samnite

wars, the phalanx gave way to the manipular legion, which reached its

full development in the Punic wars.[493]

VI. _The Five Classes and their Ratings_

Though originally denoting the men of the first rating, who possessed the

fullest equipment,[494] the term classis with an explanatory adjective

came to apply to the entire army[495] or to its component parts.[496] The

plural “classes” came finally to mean the five census groups, represented

by the five timocratic gradations of the comitia centuriata. What had

formerly been the classis then came to be known as classis prima, and the

“infra classem” ratings were numbered downward second, third, fourth,

and fifth. Probably this extension in the use of the word was not made

till after the disappearance of the ratings from the army—how much later

we do not know. In a speech delivered in 169 in favor of the lex Voconia

the elder Cato more than once examined into the meaning of classicus

and infra classem.[497] A hasty inference would be that at this late

date classis was still strictly limited to the first rating. It is to

be noted, however, that the early meaning might be retained in a legal

formula long after it had disappeared from general use, that classicus

certainly preserved its original meaning notwithstanding the new

development of the noun from which it is derived, and especially that the

early sense of the terms classicus and infra classem was not generally

known in 169, else Cato would not have taken such pains to define them.

We know that the ratings were termed classes in 111,[498] and from

what has just been said on the Voconian law it seems probable that the

development took place long before 169. The circumstance that in their

“discriptio centuriarum” Livy and Dionysius make no reference to the

distinction between classis and infra classem would favor the supposition

that they found no such distinction in their common source—ultimately

Fabius Pictor. Hence it is not unlikely that classis was used in its

historical meaning of property class in the censorial document from which

Fabius derived his knowledge of the fully developed comitia centuriata,

and which belonged to the period immediately following 269.[499]

Before the censorship of Appius Claudius Caecus, 312, military service

within the census ratings was based on the possession of land, and

the gradations of equipment, while they lasted, must therefore have

been determined by the size of the estate reckoned in iugera.[500]

Huschke[501] rightly inferred that the number of iugera marking the

lower limit of each division must have been proportioned to the later

money ratings, and assumed accordingly 20, 15, 10, 5, 2½ or 2 iugera

as the respective minimal holdings of the five divisions. Although

absolute certainty is unattainable, most scholars accept his conclusions

as probable.[502] Before the change was made in the appraisements

from amount of land to money, the census gradations ceased to serve a

military purpose. In the further discussion of these groups reference is

therefore solely to their political character, especially as expressed

in the organization of the comitia centuriata. Till the time of Marius,

however, the soldiers were ordinarily recruited from the classes—that is,

from the citizens who possessed at least the qualification of the lowest

group.[503]

The money ratings of 312 are not recorded; we know those only of the

time following 269. The ratings of the earlier date must have been in

the nominally libral asses then current. For a long time, probably down

to 312, the _as_ remained at eleven to nine ounces in weight, then sank

rapidly to four, three, and two ounces, reaching the last-mentioned

weight in or shortly before 269. In this year or the following was

legally adopted the lighter _as_, weighing two ounces, or a sixth of a

pound, and hence termed sextantarian, and the heavier asses still in

circulation were henceforth reckoned as sesterces, which now became

the unit of value.[504] Two and a half sextantarian asses made a

sesterce, and four sesterces made a denarius.[505] The _as_ continued

to be copper, whereas the sesterce and the denarius were silver. In

consequence of the use of the sextantarian _as_ the ratings must have

been elevated to correspond with the decline of the standard; and the

result of this change is the well-known series, 100,000, 75,000, 50,000,

25,000, 11,000.[506] There can be no doubt that under the standard used

in 312 the ratings were lower than those given. It is incredible that

the classis should ever have been appraised so high as 100,000 asses of

ten-ounce weight or even of the value of sesterces (5 oz.).[507] But

the ratings of 312 have not been definitely ascertained. Assuming but

one elevation between the two dates and in the proportion of 4:10::

sextantarian _as_: heavy _as_ or sesterce, Mommsen[508] concludes that

the appraisements of 312 were 40,000, 30,000, 20,000, 10,000, and 4400

asses respectively for the five classes. The adjustment however may have

been gradual, as was the decline of the standard, and the former need not

have corresponded exactly with the latter. But in so far as the Romans

failed to bring about this adjustment, the censors must have found it

necessary continually to advance the citizens from the lower to the

higher divisions.

The ratings mentioned above as established on the basis of the

sextantarian standard, namely 100,000, 75,000, 50,000, 25,000, and 11,000

asses for the five classes respectively, are those given by Livy.[509]

Several variations affecting the highest and lowest classes are offered

by other writers. Dionysius[510] states the appraisement of the fifth

class at 12½ minae, which would be 12,500 asses. The usual explanation is

that he is dealing in round numbers without especial regard to accuracy,

for which reason Livy should be given the preference. It is doubtful

however whether Dionysius was so inexact. More probably his estimate

depended ultimately on the idea that the minimal number of iugera of the

highest class was twenty-five,[511] taken in connection with the decimal

ratio between the extreme classes—an interpretation which would help

explain variations in the rating of the highest class to be mentioned

hereafter; or with less reason we might assume that the statements of

Dionysius and Livy represent earlier and later conditions.[512] The

limit of 400 drachmas given by Polybius[513] proves a lowering of the

minimal rating between 269 and the publication of his history.[514] It

may have been made in 217, when the money system was again changed. As

Polybius probably considered the drachma, or denarius, to be worth ten

asses,[515] the limit which he mentions would be 4000 asses. Cicero

states the minimal limit at 1500 asses,[516] and a still lower sum of

375, mentioned by Gellius,[517] marked the line of division between the

taxable proletarians and the capite censi, who were exempt from taxation.

As the differentiation between the two groups last named must have been

effected before 167, when the Romans were relieved of the tributum,[518]

the rating given by Cicero could not have been later than that vouched

for by Polybius. The limit of 4000 asses, accordingly, had reference

merely to military service, whereas 1500 marked at once the political

and tributary line of separation between the fifth class and the taxable

proletarians.[519] The limit of 375 asses, on the other hand, was far

below the fifth class, and had nothing to do with it.[520] The relation

of these numbers to one another may be summarized as follows: Those

assessed at 4000 or more asses belonged to the fifth class, enjoyed the

political rights of that class, and were subject to military service

as well as to taxation (tributum); those rated at 1500-4000 asses also

belonged to the fifth class, enjoyed the political rights of that class,

and were subject to taxation but exempt from military service; those

rated at 375-1500 asses were proletarians, below the fifth class but

subject to taxation; those rated below 375 asses, the capite censi, were

exempt from taxation.

As regards the rating of the highest class, the elder Pliny[521] states

it at 110,000 asses, which may be a copyist’s error for 100,000 or

for 120,000; the estimate of Paulus Diaconus[522] is 120,000 and of

Gellius[523] 125,000. If the manuscripts have correctly preserved these

numbers, they may represent computations based on a varying number of

iugera, from twenty-two to twenty-five[524] at the rate of 5000 asses a

iugerum—a valuation which may have been given in the original annalistic

source (Fabius Pictor). From the fact that Pliny assigns this rating to

Servius as author, and that Gellius speaks of it in the past, we must

infer that it was not due to a relatively late change. Indeed the rating

must have remained unaltered to the time of Polybius,[525] who states

that those appraised at 10,000 drachmas wore the cuirass—according to

Livy[526] and Dionysius,[527] the distinctive equipment of the first

class.[528] In the same age the Voconian law, 169, provided that a

man registered by the censors as worth 100,000 asses or more should

not bequeath his property to a woman.[529] While speaking in favor

of the measure the elder Cato expounded the distinction between the

classici and those who were “infra classem.”[530] Strictly following

Cato’s definition, Gellius[531] explains the classici as those of the

first class in contrast with the members of the lower classes, who are

infra classem. Evidently the classici are to be identified with those

rated at 100,000 asses, as given by Gaius.[532] The sum of 100,000

sesterces, in place of asses, represented by later writers[533] as

the one fixed by this law, is due either to a late interpretation or

to an amendment.[534] The minimal qualification of the first class

must therefore have continued unchanged from 269 to the passing of the

Voconian law, 169, and the composition of the _History_ of Polybius.[535]

From the latter event to the tribuneship of Tiberius Gracchus little

time was left for an increase, which certainly the Gracchi and their

successors would take no interest in bringing about. Further depreciation

in the weight of the _as_, by the reduction to a half ounce through the

Papirian law of 89,[536] had no effect on the valuation, as the standard

was the silver sesterce, the _as_ having merely the fiduciary value of a

quarter sesterce. Apart from the accounts of Livy and Dionysius already

considered, no reference is made to the valuation of the intermediate

classes, unless it be a passage in Livy[537] to the effect that freedmen

possessing country estates worth at least 30,000 sesterces were enrolled

in the rural tribes by the censors of 169, which is interpreted by

Mommsen[538] to refer to the qualification of the second class. This is

true if, as has been assumed above, the censors still reckoned two and a

half asses to the sesterce.[539]

VII. _Belot’s Theory as to the Ratings_

Notice must be taken of a theory proposed by Belot,[540] that at the time

of the First Punic War, owing to an economic revolution which enhanced

prices, and to the decrease in the weight of the _as_, the five ratings

as stated by Dionysius for the earlier period were multiplied by ten,

giving for the future 1,000,000, 750,000, 500,000, 250,000, 125,000 asses

for the five classes respectively.[541] The theory is supported with

remarkable learning and skill. There can be no doubt as to the lowering

of the weight of the _as_ or of the economic revolution which increased

prices. Large valuations of estates such as he mentions are found in the

sources. For example in 214 the government ordered[542] that—

Those rated at 50,000- 100,000 asses should furnish one sailor.

Those rated at 100,000- 300,000 asses should furnish three sailors.

Those rated at 300,000-1,000,000 asses should furnish five sailors.

Those rated at above 1,000,000 asses should furnish seven sailors.

Senators should furnish eight sailors.

Belot’s attempt to identify the highest of these appraisements with the

rating of the first class is unsuccessful, as will immediately appear.

The object of the order issued by the government in 214 was to provide

crews for the fleet of that year. Although the hundred and fifty ships

to be manned[543] seem to have been triremes, we may consider them

quinqueremes so as not to underestimate the number of men necessary.

Reckoning 375 men to the ship,[544] we should have 56,250 men for the

entire fleet. But according to Belot[545] there were 22,000 knights at

this time, whose census rating was 1,000,000 asses, and who accordingly

would have to furnish seven men each for the navy, which would amount to

154,000, or more than enough to man three such fleets as that of the year

under consideration. But as the knights constituted only a twelfth of the

total number of registered citizens of that period,[546] most if not all

of whom must according to Belot have been assessed at 50,000 or above,

we shall be obliged at least to double the 154,000 sailors furnished by

the knights to obtain the whole number demanded by the government. The

absurdity of the result condemns the premises. The minimal census of the

knight could not have been materially if at all above 100,000 asses,[547]

and the great mass of citizens must have been rated below that sum. Other

features of his theory need not be considered here. The truth is that

the great accumulation of wealth benefited but few; and notwithstanding

the advance in the money value of property, the mass of people remained

so poor that the state could not disturb the census ratings, however

out of harmony with the new conditions they seem to have become. No

suspicion should be thrown on the continuance of these small valuations

by the circumstance that occasionally the state compelled the wealthy to

contribute to the burden of war according to their ability, as in 214,

and increased the penalties for the crimes and misdemeanors which the

rich and powerful were wont to commit.[548]

VIII. _The Post-Servian Equites_

The classes, as developed after Servius, have now been considered

sufficiently for an appreciation of their relation to the comitia

centuriata. It remains to discuss from the same point of view the

post-Servian alterations in the equestrian organization.

In the earliest period when the warriors in general equipped themselves

at their own expense,[549] the equites provided their own horses. But

in time as the patricians ceased to be the only wealthy class in the

community, and as they began to lose their political advantages, their

duty of keeping one or two horses came to be felt as onerous, and some

means of lightening it was sought for. The only private property which

was free from the burden of supporting military service was that of

widows and orphans. The government determined accordingly to levy a

regular contribution on this class of estates in the interest of the

equites. The eques was allowed ten thousand asses, or one thousand

denarii (aes equestre), with which to purchase his horse or horses for

the ten years of service and two thousand asses (aes hordearium) annually

for maintenance.[550] He was not paid the money in advance, but was given

security for the required sums,[551] which were gradually to be made

good from the special kind of tax here described. When these equestrian

funds were first granted cannot be absolutely determined. Cicero[552]

assigns their institution to Tarquinius Priscus, Livy[553] to Servius,

Plutarch[554] to Camillus in the year of his censorship, 377. For obvious

reasons the earlier dates are suspicious, whereas the last has the

advantage of connecting the institution of these funds with the general

movement for the public support of military service. When in the war with

Veii regular military pay was introduced, the eques on account of his

more burdensome duty, perhaps too because of his higher rank, was allowed

three times the pay of the legionary.[555] It was afterward decided to

deduct the aes hordearium, probably also the aes equestre, from his

pay.[556] Meanwhile as wars were waged on an ever increasing scale, the

patricians, who were dwindling in number, could not furnish all the

cavalry needed. This want was especially felt in the struggle with Veii,

whereupon wealthy plebeian youths[557] came forward and offered to serve

with their own horses.[558] This is the first known instance of voluntary

equestrian duty, doubtless often repeated at crises during the remainder

of the republican period. In the first case at least the state provided

for the keep of the horses. The volunteers were of the same grade of

wealth as the conscripts; they were held in equal honor,[559] and most

probably their years of voluntary service were counted in with their

regular duty in making up the required number.[560] Service equo privato

could also be imposed as a punishment. The only known instance, however,

was that required by the censors of 209 of the equites who had disgraced

themselves at Cannae. Their horses were taken from them, their campaigns

equo publico were not counted to their credit, but they were required

to serve ten years equis privatis.[561] These are the only instances

of service with private horses mentioned in history. In all ancient

literature is no suggestion that the equites equo privato formed a rank

by themselves or were an institution.[562] It should also be said that

the injustice of furnishing some with horses and of compelling others to

go to war at their own expense, unless by way of punishment, was contrary

to the spirit of the constitution. This conclusion is supported by the

elder Pliny’s[563] definition of the military equites, which makes the

public horse an essential. From the time therefore when the state began

to support the mounted service in the way described above, the equites

equis publicis continued to be the only regular citizen horsemen.

The number of equites with public horses is approximately determined for

any time by the number of legions then enrolled. The Servian phalanx,

as has been noted,[564] consisted of two legions, which remained the

normal number through the fifth century. But in the wars with Samnium

and Pyrrhus Rome was able regularly to support four legions.[565] The

military force could not have been doubled before the incorporation of

the Veientan territory early in the fourth century;[566] most probably

the enlargement belongs to still later time. The increase in the

infantry required a corresponding enlargement of the mounted service. At

least twelve hundred equites were henceforth required for active duty.

Making allowance for reserves and ineffectives, the government raised

the number of equites equo publico to eighteen hundred. The twelve new

centuries were open alike to patricians and plebeians, whereas the old

six remained for a time exclusively patrician. This seems to have been

the condition at the opening of the first war with Carthage. During the

Punic wars the number varied greatly, sometimes reaching a total of

more than five thousand in the field, not counting reserves.[567] After

the war with Hannibal the state, drained of men and money, allowed the

cavalry to dwindle.[568] Viewing this condition with alarm, the elder

Cato[569] urged that the number should be increased, and that a minimal

limit be fixed at 2200. Probably at the same time he proposed that the

legion should be strengthened. His measure must have been adopted, for

after his censorship we find the legion regularly consisting of 5200

foot and 300 horse.[570] Under Augustus there were times when 5000

equites[571] equo publico took part in the parade which he revived.[572]

As no reason can be found why Augustus should suddenly increase this

class, we must conclude that there were probably about 5000 equites equo

publico in the late republic.

As long as the cavalry remained exclusively patrician, a census

qualification was precluded. Though Cicero and Livy refer the equestrian

census to Servius Tullius, their vagueness on this point shows that they

lacked definite information.[573] It must have been introduced at the

time when the patriciate ceased to be an essential qualification, when

the levy came to be made on the basis of wealth rather than of blood.

This change should be assigned to the early part of the fourth century

B.C.[574] For a time the census was that of the first class.[575] In

214 it was still 100,000 asses, or not much above, as has already been

proved.[576] In the late republic and under the emperors the minimal

rating was 400,000 sesterces.[577] When it was raised to this amount is

unknown.

I. THE EARLY GRAECO-ITALIAN PHALANX: Busolt, _Griechische

Geschichte_, i, ii (see Contents); Bauer, A., _Griechische

Kriegsaltertümer_; Droysen, H., _Kriegsalterthümer der

Griechen_, in Hermann’s _Lehrb. der griech. Antiquitäten_,

ii. 1-74; Gilbert, _Constitutional Antiquities of Sparta and

Athens_ (see Index and Contents); Lammert, E., _Geschichtliche

Entwickelung der griech. Taktik_, in _N. Jahrb. f. kl. Alt._

iii (1899). 1-29; _Die neuesten Forschungen auf antiken

Schlachtfeldern im Griechenland_, in _N. Jahrb. f. d. kl.

Philol._ xiii (1904). 195-212, 252-79, contains some matters

of interest for the present subject, though it treats mainly

of the time after Alexander; Fröhlich, F., _Beiträge zur

Kriegsführung und Kriegskunst der Römer zur Zeit der Republik_;

Schiller, _Röm. Kriegsaltertümer_, in Müller’s _Hdb. d. kl.

Altwiss._ iv. 707 ff.; on earlier literature, 714 f., 728 f.,

733, 737, 741, 744; Leinveber, A., _Die Legion von Livius_, in

_Philol._ lxi. N. F. xv (1902). 32-41, a specialist in military

science; Nitzsch, K. W., _Das Verhältniss von Heer und Staat in

der röm. Republik_, in _Hist. Zeitschr._ vii (1862). 133-58;

Liers, H., _Kriegswesen der Alten_; Delbrück, _Geschichte

der Kriegskunst im Rahmen der politischen Geschichte_, bks.

i, iv, best authority; _Die römische Manipulartaktik_, in

_Hist. Zeitschr._ N. F. xv (1884). 239-64; Niese, B., _Ueber

Wehrverfassung, Dienstpflicht, und Heerwesen Griechenlands_,

ibid, xcviii (1907). 263-301, 473-506; Arnim, H., _Ineditum

Vaticanum_, in _Hermes_, xxvii (1892). 118-30, the portion of

Greek text used is on p. 121; Wendling, E., _Zu Posidonius und

Varro_, in _Hermes_, xxviii (1893). 335-53, on the source of

the _Ined Vat._; Bruncke, H., in _N. Philol. Rundschau_ (1888)

40-4; Müller-Deecke, _Etrusker_, i. 364-72; Müller, J. J.,

_Studien zur röm. Verfassungsgeschichte_, in _Philol._ xxxiv

(1876). 96-136; Helbig, _Sur les attributs des saliens_, in

_Mémoires de l’académie des inscriptions et belles-lettres_,

xxxvii² (1905). 205-76; on the same subject, in _Comptes rendus

de l’acad._ etc. 1904. ii. 206-12.

II. THE MILITARY AND POLITICAL CENTURIES AND CLASSES: Niebuhr,

B. G., _Röm. Geschichte_, i. 451-511, Eng. 197-236; Schwegler,

_Röm. Geschichte_, I. bk. xvii; Huschke, Ph. E., _Verfassung

des Königs Servius Tullius_, especially chs. iv, vii, viii;

Peter, C., _Epochen der Verfassungsgeschichte der röm.

Republik; Studien zur röm. Geschichte_, controverts Mommsen’s

view as to the military character of the Servian institutions;

Mommsen, _History of Rome_, bk. I. ch. vi; _De apparitoribus

magistratuum romanorum_, in _Rhein. Mus._ N. F. vi (1846).

1-57, includes some account of the accensi; _Röm. Tribus_,

59-72, 121-143, 160 ff.; _Röm. Staatsr._ iii. 240 ff.; _Röm.

Forschungen_, i. 134-40; Willems, P., _Droit public Rom._

40, 43, 84-92; Mispoulet, J. B., _Institutions politiques

des Romains_, i. 203-7; Lange, L., _Röm. Altertümer_, i.

522-66; _Cicero über die servianische Centurienverfassung_,

in _Kleine Schriften_, i. 227-234; Herzog, _Geschichte und

System der röm. Staatsverfassung_, i. 37-43, 1066 f.; Ihne,

W., _History of Rome_, bk. I. ch. vii; _Early Rome_, 51-4,

79, 132-9; _Entstehung der servianischen Verfassung_, in

_Symbola Philologorum Bonnensium_ (1864-1867). 629-44; Breda,

_Die Centurienverfassung des Servius Tullius_; Genz, H.,

_Servianische Centurien-Verfassung_; Soltau, W., _Altröm.

Volksversammlungen_, 229-96; Ullrich, J., _Centuriatcomitien_;

Le Tellier, M., _L’Organisation centuriate et les comices par

centuries_, ch. i; Hallays, A., _Les comices à Rome_; Morlot,

É., _Les comices électoraux_, ch. iii; Moye, M., _Élections

politiques sous la république Rom._ chs. iii, iv, vii; Müller,

ibid.; Neumann, K. J., _Grundherrschaft der röm. Republik,

die Bauernbefreiung, und die Entstehung der servianischen

Verfassung_, speculative but very suggestive; Greenidge, A. H.

J., _Roman Public Life_, 65-76; _Legal Procedure of Cicero’s

Time_, 307 ff.; Schott, P. O., _Röm. Geschichte im Lichte

der neuesten Forschungen_; Smith, F., _Röm. Timokratie_;

Pardon, _De aerariis_; Maue, H., _Der praefectus fabrum_;

Bloch, A., _Le praefectus Fabrum_, pt. ii, in _Musée Belge_,

ix (1905). 352-78; Babelon, E., _Monnaies de la république

Rom._ I. pts. i, ii; _Traité des monnaies Grecq. et Rom._

i; _Origines de la monnaie_; Samwer-Bahrfeldt, _Geschichte

des alten röm. Münzwesens_; Hill, G. F., _Greek and Roman

Coins_, 45-9; Regling, _Zum älteren röm. und ital. Münzen_,

in _Klio_, vi (1906). 489-524; Belot, É., _De la révolution

économique et monétaire ... à Rome_; articles in Pauly-Wissowa,

_Real-Encycl.: Accensi_, i. 135-7 (Kubitschek); _Adscriptivi_,

i. 422 (Cichorius); _Adsiduus_, i. 426 (Kubitschek);

_Aerarius_, i. 674-6 (idem); _As_, ii. 1499-1513 (idem);

_Capite censi_, iii. 1521-3 (Kübler); _Census_, iii. 1914-24

(Kubitschek); _Centuria_, iii. 1952-62 (Kübler, Domazewski,

Kubitschek); _Classis_, iii. 2630-32 (Kübler); _Collegium_,

iv. 380-480 (Kornemann); _Comitia_, iv. 679-715 (Liebenam);

_Cornicines_, iv. 1602 f. (Fiebiger); _Denarius_, v. 202-15

(Hultsch); articles in Daremberg et Saglio, _Dict.: Accensus_,

i. 16 ff. (Humbert and others); _As_, i. 454-64 (Lenormant);

_Census_, ii. 1003-17 (Humbert); _Centuria_, ii. 1017 (idem);

_Classis_, i. 1224 f. (idem); _Comices centuriates_, s.

_Comitia_, ii. 1378 ff. (idem); articles in Ruggiero, E.,

_Dizionario epigrafico: Accensus_, i. 18-21; _Aerarius_, i.

311-3; _Aes_, i. 313 f.; _Centuria_, ii. 183-9; _Censor_,

ii. 157 ff.; _Census_, ii. 174-7; _Cornicines_, ii. 1213-6;

_Fabri_, iii. 4-18 (Libenam); Olcott, _Thes. ling. lat. ep._ i.

51: Accensus; Pais, E., _Ancient Legends of Roman History_, ch.

vii.

III. THE EQUITES: Niebuhr, ibid. i. 415-22, Eng. 197-200;

Schwegler, ibid. i. 756-60; Lange, _Röm. Alt._ i. 444-7, 523,

547-51; _Recension über K. Niemeyer, De equitibus romanis

commentatio historica_, in _Kleine Schriften_, i. 113-37;

Mommsen, _Röm. Staatsr._ ii. 397-400; iii. 106-9, 253-62;

Madvig, J. N., _Verfassung und Verwaltung des röm. Staates_,

i. 155-82; Mispoulet, J. B., _Études d’institutions Rom._

151-226; Bloch, G., _Origines du sénat Rom._ 46-95; Marquardt,

J., _Historiae equitum romanorum libri iv_; Gomont, M. H.,

_Chevaliers Rom. depuis Romulus jusqu’à Galba_; Niemeyer, K.,

_De equitibus romanis commentatio historica_; Rubino, J.,

_Ueber das Verhältniss der VI Suffragia zur röm. Ritterschaft_,

in _Zeitschr. f. d. Altertumswiss._ iv (1846). 212-39;

Bertolini, C. I., _I celeres ed il tribunus celerum_; Belot,

É., _Histoire des chevaliers Rom._ 2 vols.; Gerathewohl,

H., _Die Reiter und die Rittercenturien zur Zeit der röm.

Republik_, valuable; Kubitschek, J. W., _Aes equestre_, in

Pauly-Wissowa, _Real-Encycl._ i. 682-4; Kübler, _Equites

Romani_, ibid. vi. 272-312; Martin, A., _Equites_ (Greek), in

Daremberg et Saglio, _Dict._ ii. 752-71; Cagnat, R., _Equites_

(Roman), ibid. ii. 771-89; Helbig, W., _Observations sur

les ἱππεῖς Athéniens_, in _Comptes rendus de l’académie des

inscriptions et belles-lettres_, 1900. 516-22; _Les ἱππεῖς

Athéniens_, in _Mémoires de l’acad._ etc. xxxvii¹ (1904).

157-264; _Die ἱππεῖς und ihre Knappen_, in _Jahreshefte des

österr. archäol instituts_, viii. 2. 185-202; Peterson, E., _Zu

Helbigs ἱππεῖς_, etc., ibid., 125 f.; Helbig, _Zur Geschichte

des röm. Equitatus, A. Die Equites als berittene Hopliten_, in

_Abhdl. d. bayer. Akad. d. Wiss._ xxiii (1905). 267-317; _Die

Castores als Schutzgötter des röm. Equitatus_, in _Hermes_, xl

(1905). 101-15; _Contribution à l’histoire de l’equitatus_, in

_Comptes rendus de l’acad. des inscriptions et belles-lettres_,

1904. ii. 190-201; Pellegrini, G., _Fregi arcaici etruschi

in terracotta_, etc., in Milani, L. A., _Studi e materiali

archeol. e numis._ i. 87-118.

CHAPTER V

THE AUSPICES

I. _Auspicia Privata_

Auspices (auspicia) were signs sent by the gods through which they

declared their will to men. Those given in answer to prayer were

impetrativa (or impetrita), those sent unasked oblativa. The first were

necessarily favorable; the second might be either favorable or the

contrary.[578] To take or to hold auspices was to seek such signs in due

form. Auspicia, or the singular auspicium, also designated the right or

the power to perform the function. They were not a means of prophecy of

future events but of ascertaining whether the deity approved a proposed

action.[579] With reference to their object and to the persons qualified

to take them, they were of two kinds, private and public. Whereas the

public auspices, taken in behalf of the state, belonged exclusively

to magistrates, the private were open to all;[580] and in early

times a Roman always resorted to them before beginning any important

business.[581] Though it was permissible to consult any deity,[582] the

greatest weight attached to the approval of the supreme god Jupiter.[583]

The plebeians, who as long as they were excluded from the magistracies

were necessarily debarred from the auspicia publica, enjoyed equally with

the patricians all private rights of religion; in fact if the nobles

had wished, they possessed no legal means of preventing the holding of

auspices or the performance of any other sacred rite in private plebeian

houses. Not only is it stated that all had a right to auspicate,[584]

but the formula for summoning troops given by Cincius[585] implies that

the soldiers, who were mainly plebeian, were accustomed to perform the

rite. We find accordingly the elder Cato, a plebeian, attending to the

ceremony in his own home.[586] The patricians, however, who believed

themselves to be nearer and dearer to the gods than were the plebeians,

and who in their struggle to keep themselves a closed caste and the

offices barred against the lower social class, declared that conubium

if granted would disturb the private as well as public auspices.[587]

But this assertion need not signify that the plebeians had no private

auspices, it might indicate merely a difference between the plebeian

and patrician ceremonies, naturally implying the superiority of the

latter. Again when on a certain occasion according to Livy a tribune

of the plebs inquired of a patrician why a plebeian could not be made

consul, the reply was that no plebeian had the auspices, reiterating that

the decemvirs had forbidden conubium to prevent the disturbance of the

ceremony by uncertainty of birth.[588] Reference might here be simply

to the auspicia publica, with which alone the consul was concerned.

However this may be, the patrician claim was indignantly repudiated

by the plebeians, and the historian can say no more than that it was

“perhaps true.” Another passage from Livy usually interpreted in support

of the theory that the patricians alone had private auspices represents

them, before the opening of the offices to the commons, as saying, “So

peculiar to us are the auspices that not only the patrician magistrates

whom the people choose are elected under the auspices, but we ourselves

under the sanction of the same rite without a vote of the people appoint

the interrex, and we as private persons hold auspices, which they do not

hold even as magistrates.”[589] This passage is perfectly intelligible

to one who bears in mind that in the late republic private auspices had

disappeared,[590] and that therefore when the word auspicia is used

without qualification by a late republican or imperial writer, it always

has reference to the public ceremonies.[591] In the quotation just given,

accordingly, nothing more is meant than that the patricians, who have the

exclusive right to the offices, are alone competent to perform the public

religious ceremonies which belong to the magistrates. Reference in the

quotation to the auspices of private persons signifies that when there

was no magistrate competent to hold the election of consuls, the public

auspices returned to the senate, the patrician members of which proceeded

under auspication to appoint an interrex for holding the elections. In

this case the senatorial patricians, it was asserted, attended to the

ceremony not as magistrates but as private persons, though the rites were

themselves public. As distinguished from magistrates, the senators were

privati. It was not, then, as mere citizens but as patrician members of

the senate that they performed the rite. Further light is thrown on this

subject by the fact that in the agitation for the opening of the augural

and pontifical colleges to the plebeians in 300, the patricians repeated

the assertion that with them alone were auspices, they alone had family

(gens), they alone possessed true imperium and auspicium in peace and

war.[592] This claim they had the effrontery to make despite the fact

that plebeian consuls had been taking public auspices for more than

sixty years. In the pride of their blood they claimed that theirs alone

were strictly legal (iustum). Notwithstanding such partisan assertions

the facts thus far adduced lead unmistakably to the conclusion that

the plebeians equally with the patricians enjoyed the right to private

auspices.[593]

II. _Auspicia Publica Impetrativa_

The right to public auspices belonged primarily to patrician

magistracies[594]—those which in the early republic were filled only by

patricians, but which continued to be called patrician after they were

open to plebeians. All elections and appointments to such offices were

auspicated;[595] and their incumbents were expected to seek the previous

approval of Jupiter for every important act of their administration.[596]

The king, interrex, dictator, consuls, praetors, and censors had the

auspicia maxima; the others the minora.[597] The praetor, as colleague

of the consuls, was elected under the same auspices with them, that is,

in the same meeting of the assembly, whereas the censors, not being

colleagues of the consuls, were elected under different auspices.

Between magistrates who were not colleagues there could be no collision

in the auspicia impetrativa; those of the censors neither strengthened

nor vitiated those of the consuls or praetors, nor were strengthened

or vitiated by them. In case of a conflict between colleagues, the

greater auspices annulled the lesser, and equal auspices annulled each

other.[598] For the exercise of a function properly belonging to a

magistracy, the incumbent performed the ceremony at his own will and

pleasure, unless expressly forbidden by a superior;[599] but one who

undertook a deputed duty had to ask the auspicium of a magistrate who

was competent to perform the duty in his own right. Thus the quaestor,

who was not qualified by right of his office to call the comitia

centuriata, found it necessary to do so in his capital prosecutions.

In such a case he asked of the praetor or consul the right to hold

auspices for summoning this assembly.[600] Whether the pontifex maximus

held auspices in his own name, or was obliged, like the quaestor, to

apply for them to a higher secular official, is unknown; at all events

it was necessary for him to auspicate the comitia calata, over which he

presided.[601] It seems probable that the tribunes originally did not

have the right as they were not magistrates; but when they came to be

so considered, they acquired the auspicium. All magistrates—necessarily

including the tribunes—who convoked the senate had previously to perform

the ceremony;[602] Cicero[603] seems to include the tribunes among

the magistrates who had the auspicium; and as further proof the very

expression “patriciorum (magistratuum) auspicia”[604] used by Messala

implies the existence of “plebeiorum magistratuum auspicia.” It was not

the custom of the tribunes, however, to auspicate their assemblies of the

plebs.[605]

For assistance in auspication the magistrate summoned any person he

pleased, who was rarely if ever a public augur.[606] An augur,[607]

whether private or official, was a person who knew how to hold and to

interpret auspices.[608] A college of public augurs[609] for the service

of the state was established in the most primitive times. Probably

comprising three members, one from each tribe, it was gradually increased

till under Sulla it reached fifteen.[610] The members of the college were

neither magistrates[611] nor prophets. They were rather the wise,[612]

experienced[613] keepers and expounders of a sacred science and

art[614]—the “interpreters of Jupiter All-Great and Good.”[615] Having

to do with religion, they were sacerdotes, like the pontiffs, though not

offerers of sacrifice (flamines).[616] The functions which they exercised

independently of the magistrates included the inauguration of religious

officials (inaugurare sacerdotes), the blessing of fields twice a year,

and of the people after the close of a war.[617] In attending to such

duties (auguria) only did they exercise their right to the auspices.[618]

In a dependent though far more influential position they acted as the

professionally skilled advisers and assistants of the magistrates in

all matters of peace and war.[619] If a magistrate was not himself an

augur,[620] it was of the utmost importance to have their service;

for the science of discovering and interpreting the divine omens was

intricate, mistakes were easy, and the slightest oversight might vitiate

the whole business in hand. When in doubt as to the validity of the

ceremony, either the magistrate to whom it belonged or the senate could

refer the case to the college of augurs, which thereupon gave an opinion

in the form of a decree. The senate then acted on the matter according

to its judgment.[621] In case a law had been passed, a magistrate

elected, or any public act performed against its wishes, it could

inquire of the college of augurs whether the election or other act had

been duly auspicated; and should a defect be alleged, the senate could

annul the act or request the magistrate to resign. It required unusual

courage in a man to keep himself in office in defiance of the authority

of the senate and of the religious feeling of the whole people.[622]

These considerations account for the great importance attaching to the

presence of augurs in the comitia—a subject to be treated in another

connection.[623]

The service of augurs was most needed in establishing the terrestrial

templum[624]—a carefully marked out, oriented spot which the magistrate

occupied while performing the rite.[625] Whereas the commander of an

army generally made use of chicken auspices (signa ex tripudiis), which

did not require their assistance,[626] they were doubtless always

called upon to institute templa in or near the city.[627] For the

exercise of their art they divided the world, so far as known to them,

into augural districts. The central district was the city, limited

by the pomerium,[628] beyond which, probably extending to the first

milestone,[629] lay a zone termed ager effatus,[630] whose boundaries

were marked by cippi.[631] The rest of the world within their sphere

of knowledge they divided into ager Romanus, which in its larger sense

included the two districts above mentioned, Gabinus, peregrinus,

hosticus, and incertus.[632] For the comitia the two inner regions

were alone important: (1) the auspication of assemblies held in the

city had to be performed within the pomerium; (2) as often as the

magistrate in passing from the city to the Campus Martius to hold the

comitia centuriata crossed the pomerium,[633] or more strictly the brook

Petronia,[634] he was obliged to take the special auspices of crossing.

Beyond the ager effatus assemblies were not ordinarily held.

Originally the most common form of divination must have been the

watching of the flight of birds, for it is from this ceremony that

the word auspicium is derived.[635] Legend accordingly asserts that

Romulus founded the city on the Palatine under the auspices of twelve

vultures.[636] Before the end of the republic, however, all other

forms of public auspicia impetrativa in the city had given way to the

caelestia, especially the lightning and thunder.[637] The reason is that

the heavenly signs could be most easily understood and carried greatest

weight; whereas other auspices had to be held for each individual act,

the celestial omens of the morning served the magistrate for all his

undertakings during the entire day.[638] The effect of heavenly signs on

assemblies of the people, however, was peculiar. Not only were comitia

and contiones interrupted by storms;[639] not only was it impious to hold

an assembly while it was lightning or thundering,[640] but even while the

magistrate was auspicating at daybreak, if a flash of lightning appeared

on the left—a sign favorable for every other undertaking—he dared not

hold the assembly on that day.[641] Some favorable comitial sign the

magistrate was supposed to perceive,[642] but what it was we do not know.

The general rule that the auspices should be taken for an act on the very

spot on which the magistrate intended to perform the act applied to the

comitial auspices. For meetings on the Capitoline Hill they probably used

the temple of Jupiter, dedicated for all time;[643] for assemblies in the

comitium the rostra, also a templum;[644] and for the comitia centuriata

the president’s platform in the Campus Martius.[645] Not only patrician

magistrates but also tribunes of the plebs occupied templa in transacting

business with the people.[646]

Between midnight and morning[647] on the day of assembly the magistrate

repaired to the templum.[648] There, placing himself on a solid[649] seat

at the door, usually facing eastward, he watched the heavens (spectio).

Meanwhile he first asked the attendant, who always sat near,[650]

whether there was silence.[651] If the answer was affirmative, he

prayed Jupiter for a sign, which he described in a formula termed legum

dictio,[652] whereupon the attendant declared he saw it.[653] In case

of non-appearance of the sign or of a disturbance of the observation,

the auspication was deferred to another morning.[654] Before the time

of Cicero, however, the ceremony had been so reduced to a pretence as

practically to eliminate the possibility of failure.[655]

Both curiate[656] and centuriate[657] assemblies were auspicated.

Although for the tribal assemblies the question is more difficult, it

seems reasonably certain that whereas a patrician magistrate took the

auspices for the comitia tributa,[658] plebeian magistrates (tribunes and

aediles of the plebs) did not.[659]

As to whether contiones were auspicated we are not clearly informed. The

question concerns those only which were held by patrician magistrates.

The auspication of comitia necessarily extended to the contio immediately

preceding.[660] It is known, too, that the censors auspicated the

lustral gathering of the centuries,[661] hence we may infer that

magistrates and sacerdotes were accustomed to take auspices for formal

religious assemblies.[662] With these exceptions contiones were doubtless

held without auspices by patrician as well as by plebeian magistrates.

III. _Auspicia Publica Oblativa_

If Jupiter had approved the holding of an assembly, the magistrate

was not for that reason necessarily done with auspices. Though the

impetrativa may have favored, prohibitive oblativa were still possible,

for circumstances might cause the god to change his mind so as to forbid

what he had previously sanctioned; and the warning omen might come at

any time before the act was completed. Sometimes the magistrate himself

discovered, or for the accomplishment of his purpose pretended to

discover, the evil omen. When for instance Pompey was holding an assembly

for the election of praetors, and Cato, a political opponent, offered

himself as a candidate, Pompey, seeing the assembly unanimous for this

man, declared that he heard a clap of thunder, and thus by an adjournment

succeeded in preventing the election.[663] Sometimes the magistrate

was informed of the omen by (1) a private person, (2) an augur, or

(3) another magistrate. In the first two cases the report was termed

nuntiatio, in the third obnuntiatio.[664] Information received from a

private citizen the president could credit or not as he saw fit, or he

could declare it irrelevant;[665] but the law compelled him to accept the

nuntiatio of an augur or the obnuntiatio of another magistrate.

Prohibitive auspicia oblativa included evil omens of all kinds. When

in 310 the dictator called the curiae for passing the lex de imperio,

it chanced that the Curia Faucia was the first to vote (principium).

Now this curia was ill omened because on two earlier occasions it had

happened to be principium at a time of great national disaster. The

dictator accordingly adjourned the meeting till the following day, when

he again summoned it after renewing the auspicia impetrativa.[666] A

case of epilepsy, by vitiating the business of the assembly, required

an adjournment; and for that reason the malady was called the comitial

sickness.[667] In the later republic the chief oblativa had come to be

caelestia; and it could happen that the auspicia impetrativa of any

magistrate might as oblativa vitiate the comitia of another. For this

reason when a higher magistrate was about to hold an assembly, he forbade

the taking of auspices by all inferior to him, for fear they might annul

his proceedings.[668]

Although the augurs had neither the auspicia impetrativa nor the right

to watch the sky for unfavorable omens,[669] they were competent to

report (nuntiatio) unexpected oblativa to the magistrates.[670] Their

object in attending the comitia accordingly was not only to assist the

president with their special knowledge,[671] but also to witness the

religious legality of the proceeding. In the latter function the augur

derived great influence[672] from the possibility of an investigation

into such legality by the augural college and the senate, which might

result in the annulment of the act.[673] For this reason witnessing

augurs were granted the privilege of adjourning the assembly in case they

perceived unfavorable omens.[674] Cicero[675] describes in detail such an

adjournment of an electoral assembly of centuries: “Behold the day for

the election of Dolabella! The prerogative century is drawn by lot, he

(the augur) remains quiet. The vote is announced, he is silent. The first

class is called and the announcement made. Then as usual the suffragia

(of the equites?) were summoned; then the second class is called. All

this happened more quickly than I have told it.

“When the business is over, that excellent augur says, ‘We adjourn to

another day.’ O remarkable impudence! What (omen) had you seen? What had

you felt? What had you heard?” Antony, who was both consul and augur,

presiding over the electoral assembly, allowed the voting to continue

till a majority was nearly reached in favor of Dolabella, when, making

use of the augural formula, he adjourned the meeting. This procedure was

in itself legal; but Antony had from the beginning of the year boasted

of his intention to prevent through augury this man’s election. As

only magistrates, through their right to the spectio, to be explained

hereafter, could with certainty predict an evil omen,[676] it was evident

that Antony, acting merely as augur, made a fictitious report.

Augurs were always present at meetings of the curiae,[677] of the

centuries,[678] and of the tribes under the presidency of a patrician

magistrate.[679] That they attended the meetings of the plebs as well

and had the same relation to the plebeian as to the other assemblies

is necessarily implied in Cicero’s[680] question, “What shows greater

religious power than to be able to grant or refuse to grant the right to

transact business with the people or with the plebs?”

If the person who reported the evil omen was not an augur but a

magistrate, the president was equally bound to heed it and to dismiss

the assembly;[681] and the force of the obnuntiatio was not in any way

affected by the relative official rank of the two persons concerned.

When accordingly a higher magistrate had set a day for an assembly,

he forbade all inferior magistrates not only to take the auspicia

impetrativa,[682] but also to watch the sky—de caelo servare—for any

purpose on that day, for fear that some omen unfavorable to the comitia

might be seen.[683] A consul for instance could prevent a quaestor from

scanning the heavens on any particular day; and the senate on the rare

occasions when it felt itself sufficiently strong, suspended for a

particular act of the assembly the right of all magistrates to receive

and to announce unfavorable omens.[684] In the absence of senatorial

interference it remained possible for any higher magistrate to scan the

heavens—de caelo servare—on an assembly day appointed by another, and to

vitiate the comitia by reporting an unfavorable omen. We find accordingly

a consul obnuntiating against a colleague[685] and against the pontifex

maximus,[686] a praetor against a tribune of the plebs,[687] and a

tribune against a consul[688] or a censor,[689] as well as against a

colleague.[690]

So certain was it that a magistrate who looked for a bad omen would

see one that the expression “to watch the sky” became equivalent to

discovering an unpropitious sign. The rule was therefore formulated

that “religion forbade the transaction of any business with the people

when it was known that the sky was watched.”[691] If accordingly a

magistrate announced that he intended to scan the heavens on the day

appointed for an assembly, this declaration was in itself sufficient in

the ordinary course of events to compel a postponement. In the year 57

Milo, a tribune of the plebs, pushed the custom to extremes by declaring

his intention to observe the sky on all comitial days.[692] Strictly the

observation had to be made and reported before the assembly met. “Can

any one divine beforehand,” Cicero[693] asks, “what defect there will be

in the auspices, except the man who has already determined to watch the

heavens? This in the first place the law forbids to be done in the time

of an assembly; and if any one has been observing the sky, he is bound

to give notice of it, not after the comitia are assembled, but before

they meet.” In the case belonging to the year 57 referred to above,

Milo, the tribune, came into the Campus Martius before midnight in order

to anticipate the arrival of the consul Metellus, who wished to hold

the elections. The assembly ordinarily met at sunrise, and could not

convene after midday. Milo accordingly remained on that day till noon,

without seeing the consul. Then Metellus demanded that for the future the

obnuntiatio should be served on him in the Forum; it was unnecessary,

he said, to go to the Campus before daybreak; he promised to be in the

comitium at the first hour of the day. As Milo was coming into the Forum

before sunrise on the next comitial day, he discovered Metellus stealing

hurriedly to the Campus by an unusual route. The tribune came upon him

and served the notice.[694]

The consul’s announcement of intention to watch the sky might be

strengthened by a proclamation declaring certain or all comitial days for

the remainder of the year to be holidays, on which the people could not

legally transact business in assembly.[695]

Although the obnuntiatio doubtless originated in the early republic,

it played no considerable part in political strife till after the

Gracchi. A great impetus to the abuse of the power was given by the

Aelian and Fufian laws, which were probably two plebiscites[696] passed

about 150.[697] What features of these statutes were new has not been

precisely determined. It is certain, however, that they made possible

the condition in which we find the spectio and obnuntiatio before the

legislation of Clodius on the subject in 58. As the tribune did not

originally have the obnuntiatio, we may infer that in all probability

these laws granted him the right to exercise it against patrician

magistrates in the way described above. Similarly from the fact that

the plebeian tribal assembly was not originally subject to religious

obstruction on the part of the government, it is reasonable to conclude

that the Aelian and Fufian statutes gave the patrician magistrates the

obnuntiatio against that body.[698] It was equivalent to a power of veto,

which the aristocracy could now exercise upon tribunician legislation,

hence Cicero[699] regards the two statutes as most holy[700] means of

“weakening and repressing the fury of the tribunes,” and as the “surest

protection of the commonwealth.”[701] Notwithstanding the opinion of

Lange,[702] that the obnuntiatio was restricted to legislation, it

seems clear from the words of Cicero,[703] as well as from the lack of

reference in the sources to such a limitation, that it applied equally

to elections. So long, however, as the nobility could depend for support

upon the tribunes, it had little need of such a power. But in the last

years of the republic, after the tribunician veto had been undermined by

Ti. Gracchus and Appuleius Saturninus, and the tribunes were again acting

independently of the senate as in the early history of their office,

optimates and populares, taking full advantage of the Aelian and Fufian

laws, alike exploited the auspices recklessly for partisan objects. Their

behavior was a sign of both religious and political disintegration.

Vatinius, tribune of the plebs in 59, had the boldness utterly to

disregard these statutes;[704] and in 58 the tribune Clodius repealed

them in so far as they affected legislation,[705] whereas for elections

the obnuntiatio still remained in force.[706] The misuse of auspices for

political purposes dates back, according to Livy,[707] to the beginning

of the Samnite wars. Although this may be an anticipation of later

conditions, there can be no doubt as to the attitude of statesmen toward

the custom in the closing years of the Punic wars.[708] In the time of

Clodius and Cicero, while some maintained a sincere belief in these

ceremonies, doubtless the great majority of public men saw in their

use nothing more than political chicanery calculated, by deceiving the

multitude, to keep the real power in the hands of a few.[709]

Rubino, J., _Untersuchungen über röm. Verfassung und

Geschichte_, 34-106; Nissen, H., _Das Templum_; Mommsen,

_Röm. Staatsrecht_, i. 76-116; Marquardt, J., _Röm.

Staatsverwaltung_, iii. 397-415; Lange, L., _Röm. Altertümer_,

3 vols, index s. Augures, Auspicia, Inauguratio, etc.; _De

legibus Aelia et Fufia commentatio_, in _Kleine Schriften_,

i. 274-341; Herzog, E., _Geschichte und System der röm.

Staatsverfassung_, 621-30, see also index s. Augures,

Auspicien; Müller-Deecke, _Etrusker_, ii. 114-27; Gilbert,

O., _Geschichte und Topographie der Stadt Rom im Altertum_, 3

vols., index s. Auguraculum, Augures; Wissowa, G., _Religion

und Kultus der Römer_, 450-60; _Augures_, in Pauly-Wissowa,

_Real-Encycl._ ii. 2313-44; _Auspicium_, ibid. ii. 2580-7;

Aust, E., _Religion der Römer_, index s. Auguraculum,

Augurn, Auspicia, etc.; _Iuppiter Elicius_, in Roscher,

_Ausführliches Lexikon der griech. und röm. Mythologie_, ii.

656-61; Bouché-Leclerq, A., _Histoire de la Divination dans

Antiquité_, iv. 134-285 (sources and modern literature, p. 180

f.); _Augures_, in Daremberg et Saglio, _Dict._ i. 550-60;

_Auspicia_, ibid. i. 580-5; Spinazzola, V., _Augures_, in

Ruggiero, _Dizionario epigrafico_, i. 778-810; Ruggiero,

ibid. i. 950 f.; De Marchi, A., _Il Culto privato di Roma

antica_, i. 152 ff., 232 ff.; Valeton, I. M. J., _De modis

auspicandi Romanorum_, in _Mnemosyne_, N. S. xvii (1889).

275-325, 418-52; xviii. 208-64, 406-56; _De iure obnuntiandi

comitiis et conciliis_, ibid. xix (1891). 75-113, 229-70; _De

templis Romanis_, ibid. xx (1892). 338-90; xxi. 62-91, 397-440;

xxiii. 15-79; xxv. 93-144, 361-85; xxvi. 1-93 (papers in the

last two vols. are on the pomerium); Luterbacher, F., _Der

Prodigienglaube und Prodigienstil der Römer_, 2 ed.; Wülker,

L., _Die geschichtliche Entwickelung des Prodigienswesens bei

den Römern_; Willoughby, W. W., _Political Theories of the

Ancient World_, ch. xv.

PART II

THE ASSEMBLIES

ORGANIZATION, PROCEDURE, AND FUNCTIONS, RESOLUTIONS, STATUTES, AND CASES

The Roman assemblies from their origin to the end of the Republic · 第 1 / 20 章