The Original Constitution of Rome
The Roman House
Father and mother, sons and daughters, home and homestead,
servants and chattels--such are the natural elements constituting
the household in all cases, where polygamy has not obliterated the
distinctive position of the mother. But the nations that have been
most susceptible of culture have diverged widely from each other
in their conception and treatment of the natural distinctions which
the household thus presents. By some they have been apprehended
and wrought out more profoundly, by others more superficially;
by some more under their moral, by others more under their legal
aspects. None has equalled the Roman in the simple but inexorable
embodiment in law of the principles pointed out by nature herself.
The House-father and His Household
The family formed an unity. It consisted of the free man who upon
his father's death had become his own master, and the spouse whom
the priests by the ceremony of the sacred salted cake (-confarreatio-)
had solemnly wedded to share with him water and fire, with their son
and sons' sons and the lawful wives of these, and their unmarried
daughters and sons' daughters, along with all goods and substance
pertaining to any of its members. The children of daughters on
the other hand were excluded, because, if born in wedlock, they
belonged to the family of the husband; and if begotten out of
wedlock, they had no place in a family at all. To the Roman citizen
a house of his own and the blessing of children appeared the end
and essence of life. The death of the individual was not an evil,
for it was a matter of necessity; but the extinction of a household
or of a clan was injurious to the community itself, which in the
earliest times therefore opened up to the childless the means of
avoiding such a fatality by their adopting the children of others
as their own.
The Roman family from the first contained within it the conditions
of a higher culture in the moral adjustment of the mutual relations of
its members. Man alone could be head of a family. Woman did not
indeed occupy a position inferior to man in the acquiring of property
and money; on the contrary the daughter inherited an equal share
with her brother, and the mother an equal share with her children.
But woman always and necessarily belonged to the household, not
to the community; and in the household itself she necessarily held
a position of domestic subjection--the daughter to her father,
the wife to her husband,(1) the fatherless unmarried woman to her
nearest male relatives; it was by these, and not by the king, that
in case of need woman was called to account. Within the house,
however, woman was not servant but mistress. Exempted from the
tasks of corn-grinding and cooking which according to Roman ideas
belonged to the menials, the Roman housewife devoted herself in
the main to the superintendence of her maid-servants, and to the
accompanying labours of the distaff, which was to woman what the
plough was to man.(2) In like manner, the moral obligations of
parents towards their children were fully and deeply felt by the
Roman nation; and it was reckoned a heinous offence if a father
neglected or corrupted his child, or if he even squandered his
property to his child's disadvantage.
In a legal point of view, however, the family was absolutely guided
and governed by the single all-powerful will of the "father of
the household" (-pater familias-). In relation to him all in the
household were destitute of legal rights--the wife and the child
no less than the bullock or the slave. As the virgin became by the
free choice of her husband his wedded wife, so it rested with his
own free will to rear or not to rear the child which she bore to
him. This maxim was not suggested by indifference to the possession
of a family; on the contrary, the conviction that the founding of
a house and the begetting of children were a moral necessity and a
public duty had a deep and earnest hold of the Roman mind. Perhaps
the only instance of support accorded on the part of the community
in Rome is the enactment that aid should be given to the father who
had three children presented to him at a birth; while their ideas
regarding exposure are indicated by the prohibition of it so far
as concerned all the sons--deformed births excepted--and at least
the first daughter. Injurious, however, to the public weal as
exposure might appear, the prohibition of it soon changed its form
from that of legal punishment into that of religious curse; for
the father was, above all, thoroughly and absolutely master in his
household. The father of the household not only maintained the
strictest discipline over its members, but he had the right and duty
of exercising judicial authority over them and of punishing them as
he deemed fit in life and limb. The grown-up son might establish
a separate household or, as the Romans expressed it, maintain his
"own cattle" (-peculium-) assigned to him by his father; but in
law all that the son acquired, whether by his own labour or by gift
from a stranger, whether in his father's household or in his own,
remained the father's property. So long as the father lived, the
persons legally subject to him could never hold property of their
own, and therefore could not alienate unless by him so empowered,
or yet bequeath. In this respect wife and child stood quite on
the same level with the slave, who was not unfrequently allowed
to manage a household of his own, and who was likewise entitled to
alienate when commissioned by his master. Indeed a father might
convey his son as well as his slave in property to a third person:
if the purchaser was a foreigner, the son became his slave; if
he was a Roman, the son, while as a Roman he could not become a
Roman's slave, stood at least to his purchaser in a slave's stead
(-in mancipii causa-). The paternal and marital power was subject
to a legal restriction, besides the one already mentioned on the
right Of exposure, only in so far as some of the worst abuses were
visited by legal punishment as well as by religious curse. Thus
these penalties fell upon the man who sold his wife or married
son; and it was a matter of family usage that in the exercise of
domestic jurisdiction the father, and still more the husband, should
not pronounce sentence on child or wife without having previously
consulted the nearest blood-relatives, his wife's as well as his
own. But the latter arrangement involved no legal diminution of
power, for the blood-relatives called in to the domestic judgment
had not to judge, but simply to advise the father of the household
in judging.
But not only was the power of the master of the house substantially
unlimited and responsible to no one on earth; it was also, as long
as he lived, unchangeable and indestructible. According to the
Greek as well as Germanic laws the grown-up son, who was practically
independent of his father, was also independent legally; but the
power of the Roman father could not be dissolved during his life
either by age or by insanity, or even by his own free will, excepting
only that the person of the holder of the power might change, for
the child might certainly pass by way of adoption into the power
of another father, and the daughter might pass by a lawful marriage
out of the hand of her father into the hand of her husband and,
leaving her own -gens- and the protection of her own god to enter
into the -gens- of her husband and the protection of his god,
became thenceforth subject to him as she had hitherto been to her
father. According to Roman law it was made easier for the slave to
obtain release from his master than for the son to obtain release
from his father; the manumission of the former was permitted at an
early period, and by simple forms; the release of the latter was
only rendered possible at a much later date, and by very circuitous
means. Indeed, if a master sold his slave and a father his son
and the purchaser released both, the slave obtained his freedom,
but the son by the release simply reverted into his father's power
as before. Thus the inexorable consistency with which the Romans
carried out their conception of the paternal and marital power
converted it into a real right of property.
Closely, however, as the power of the master of the household over
wife and child approximated to his proprietary power over slaves
and cattle, the members of the family were nevertheless separated
by a broad line of distinction, not merely in fact but in law, from
the family property. The power of the house-master--even apart from
the fact that it appeared in operation only within the house--was
of a transient, and in some degree of a representative, character.
Wife and child did not exist merely for the house-father's sake in
the sense in which property exists only for the proprietor, or in
which the subjects of an absolute state exist only for the king;
they were the objects indeed of a legal right on his part, but they
had at the same time capacities of right of their own; they were
not things, but persons. Their rights were dormant in respect of
exercise, simply because the unity of the household demanded that
it should be governed by a single representative; but when the
master of the household died, his sons at once came forward as its
masters and now obtained on their own account over the women and
children and property the rights hitherto exercised over these by
the father. On the other hand the death of the master occasioned
no change in the legal position of the slave.
Family and Clan (-Gens-)
So strongly was the unity of the family realized, that even the
death of the master of the house did not entirely dissolve it.
The descendants, who were rendered by that occurrence independent,
regarded themselves as still in many respects an unity; a principle
which was made use of in arranging the succession of heirs and in
many other relations, but especially in regulating the position
of the widow and unmarried daughters. As according to the older
Roman view a woman was not capable of having power either over
others or over herself, the power over her, or, as it was in this
case more mildly expressed, the "guardianship" (-tutela-) remained
with the house to which she belonged, and was now exercised in the
room of the deceased house-master by the whole of the nearest male
members of the family; ordinarily, therefore, by sons over their
mother and by brothers over their sisters. In this sense the
family, once founded, endured unchanged till the male stock of its
founder died out; only the bond of connection must of course have
become practically more lax from generation to generation, until
at length it became impossible to prove the original unity. On
this, and on this alone, rested the distinction between family and
clan, or, according to the Roman expression, between -agnati- and
-gentiles-. Both denoted the male stock; but the family embraced
only those individuals who, mounting up from generation to generation,
were able to set forth the successive steps of their descent from
a common progenitor; the clan (-gens-) on the other hand comprehended
also those who were merely able to lay claim to such descent from
a common ancestor, but could no longer point out fully the intermediate
links so as to establish the degree of their relationship. This
is very clearly expressed in the Roman names: when they speak
of "Quintus, son of Quintus, grandson of Quintus and so on,
the Quintian," the family reaches as far as the ascendants are
designated individually, and where the family terminates the clan
is introduced supplementary, indicating derivation from the common
ancestor who has bequeathed to all his descendants the name of the
"children of Quintus."
Dependents of the Household
To these strictly closed unities--the family or household united
under the control of a living master, and the clan which originated
out of the breaking-up of such households--there further belonged
the dependents or "listeners" (-clientes-, from -cluere-). This
term denoted not the guests, that is, the members of other similar
circles who were temporarily sojourning in another household than
their own, and as little the slaves, who were looked upon in law
as the property of the household and not as members of it, but
those individuals who, while they were not free burgesses of any
commonwealth, yet lived within one in a condition of protected
freedom. These included refugees who had found a reception with a
foreign protector, and those slaves in respect of whom their master
had for the time being waived the exercise of his rights, and so
conferred on them practical freedom. This relation had not the
distinctive character of a strict relation -de jure-, like that of
a man to his guest: the client remained a man non-free, in whose
case good faith and use and wont alleviated the condition of
non-freedom. Hence the "listeners" of the household (-clientes-)
together with the slaves strictly so called formed the "body
of servants" (-familia-) dependent on the will of the "burgess"
(-patronus-, like -patricius-). Hence according to original right
the burgess was entitled partially or wholly to resume the property
of the client, to reduce him on emergency once more to the state
of slavery, to inflict even capital punishment on him; and it was
simply in virtue of a distinction -de facto-, that these patrimonial
rights were not asserted with the same rigour against the client
as against the actual slave, and that on the other hand the moral
obligation of the master to provide for his own people and to protect
them acquired a greater importance in the case of the client, who
was practically in a more free position, than in the case of the
slave. Especially must the -de facto- freedom of the client have
approximated to freedom -de jure- in those cases where the relation
had subsisted for several generations: when the releaser and the
released had themselves died, the -dominium- over the descendants
of the released person could not be without flagrant impiety claimed
by the heirs at law of the releaser; and thus there was gradually
formed within the household itself a class of persons in dependent
freedom, who were different alike from the slaves and from the
members of the -gens- entitled in the eye of the law to full and
equal rights.
The Roman Community
On this Roman household was based the Roman state, as respected
both its constituent elements and its form. The community of the
Roman people arose out of the junction (in whatever way brought
about) of such ancient clanships as the Romilii, Voltinii, Fabii,
etc.; the Roman domain comprehended the united lands of those
clans.(3) Whoever belonged to one of these clans was a burgess
of Rome. Every marriage concluded in the usual forms within this
circle was valid as a true Roman marriage, and conferred burgess-rights
on the children begotten of it. Whoever was begotten in an illegal
marriage, or out of marriage, was excluded from the membership of
the community. On this account the Roman burgesses assumed the name
of the "father's children" (-patricii-), inasmuch as they alone in
the eye of the law had a father. The clans with all the families
that they contained were incorporated with the state just as
they stood. The spheres of the household and the clan continued
to subsist within the state; but the position which a man held in
these did not affect his relations towards the state. The son was
subject to the father within the household, but in political duties
and rights he stood on a footing of equality. The position of the
protected dependents was naturally so far changed that the freedmen
and clients of every patron received on his account toleration in
the community at large; they continued indeed to be immediately
dependent on the protection of the family to which they belonged,
but the very nature of the case implied that the clients of members
of the community could not be wholly excluded from its worship and
its festivals, although, of course, they were not capable of the
proper rights or liable to the proper duties of burgesses. This
remark applies still more to the case of the protected dependents
of the community at large. The state thus consisted, like the
household, of persons properly belonging to it and of dependents--of
"burgesses" and of "inmates" or --metoeci--.
The King
As the clans resting upon a family basis were the constituent
elements of the state, so the form of the body-politic was modelled
after the family both generally and in detail. The household was
provided by nature herself with a head in the person of the father
with whom it originated, and with whom it perished. But in the
community of the people, which was designed to be imperishable,
there was no natural master; not at least in that of Rome, which
was composed of free and equal husbandmen and could not boast of a
nobility by the grace of God. Accordingly one from its own ranks
became its "leader" (-rex-) and lord in the household of the Roman
community; as indeed at a later period there were to be found in or
near to his dwelling the always blazing hearth and the well-barred
store-chamber of the community, the Roman Vestas and the Roman
Penates--indications of the visible unity of that supreme household
which included all Rome. The regal office began at once and by
right, when the position had become vacant and the successor had
been designated; but the community did not owe full obedience to
the king until he had convoked the assembly of freemen capable of
bearing arms and had formally challenged its allegiance. Then he
possessed in its entireness that power over the community which
belonged to the house-father in his household; and, like him, he
ruled for life. He held intercourse with the gods of the community,
whom he consulted and appeased (-auspicia publica-), and he nominated
all the priests and priestesses. The agreements which he concluded
in name of the community with foreigners were binding upon the whole
people; although in other instances no member of the community was
bound by an agreement with a non-member. His "command" (-imperium-)
was all-powerful in peace and in war, on which account "messengers"
(-lictores-, from -licere-, to summon) preceded him with axes and
rods on all occasions when he appeared officially. He alone had
the right of publicly addressing the burgesses, and it was he who
kept the keys of the public treasury. He had the same right as a
father had to exercise discipline and jurisdiction. He inflicted
penalties for breaches of order, and, in particular, flogging
for military offences. He sat in judgment in all private and in
all criminal processes, and decided absolutely regarding life and
death as well as regarding freedom; he might hand over one burgess
to fill the place of a slave to another; he might even order
a burgess to be sold into actual slavery or, in other words, into
banishment. When he had pronounced sentence of death, he was
entitled, but not obliged, to allow an appeal to the people for
pardon. He called out the people for service in war and commanded
the army; but with these high functions he was no less bound, when
an alarm of fire was raised, to appear in person at the scene of
the burning.
As the house-master was not simply the greatest but the only power
in the house, so the king was not merely the first but the only
holder of power in the state. He might indeed form colleges of
men of skill composed of those specially conversant with the rules
of sacred or of public law, and call upon them for their advice;
he might, to facilitate his exercise of power, entrust to others
particular functions, such as the making communications to the
burgesses, the command in war, the decision of processes of minor
importance, the inquisition of crimes; he might in particular, if
he was compelled to quit the bounds of the city, leave behind him
a "city-warden" (-praefectus urbi-) with the full powers of an
-alter ego-; but all official power existing by the side of the
king's was derived from the latter, and every official held his
office by the king's appointment and during the king's pleasure. All
the officials of the earliest period, the extraordinary city-warden
as well as the "leaders of division" (-tribuni-, from -tribus-,
part) of the infantry (-milites-) and of the cavalry (-celeres-)
were merely commissioned by the king, and not magistrates in the
subsequent sense of the term. The regal power had not and could
not have any external check imposed upon it by law: the master of
the community had no judge of his acts within the community, any
more than the housefather had a judge within his household. Death
alone terminated his power. The choice of the new king lay with the
council of elders, to which in case of a vacancy the interim-kingship
(-interregnum-) passed. A formal cooperation in the election
of king pertained to the burgesses only after his nomination; -de
jure- the kingly office was based on the permanent college of the
Fathers (-patres-), which by means of the interim holder of the
power installed the new king for life. Thus "the august blessing
of the gods, under which renowned Rome was founded," was transmitted
from its first regal recipient in constant succession to those that
followed him, and the unity of the state was preserved unchanged
notwithstanding the personal change of the holders of power.
This unity of the Roman people, represented in the field of
religion by the Roman Diovis, was in the field of law represented
by the prince, and therefore his costume was the same as that of
the supreme god; the chariot even in the city, where every one else
went on foot, the ivory sceptre with the eagle, the vermilion-painted
face, the chaplet of oaken leaves in gold, belonged alike to the
Roman god and to the Roman king. It would be a great error, however,
to regard the Roman constitution on that account as a theocracy:
among the Italians the ideas of god and king never faded away into
each other, as they did in Egypt and the East. The king was not
the god of the people; it were much more correct to designate him as
the proprietor of the state. Accordingly the Romans knew nothing
of special divine grace granted to a particular family, or of
any other sort of mystical charm by which a king should be made
of different stuff from other men: noble descent and relationship
with earlier rulers were recommendations, but were not necessary
conditions; the office might be lawfully filled by any Roman come
to years of discretion and sound in body and mind.(4) The king
was thus simply an ordinary burgess, whom merit or fortune, and
the primary necessity of having one as master in every house, had
placed as master over his equals--a husbandman set over husbandmen,
a warrior set over warriors. As the son absolutely obeyed his father
and yet did not esteem himself inferior, so the burgess submitted
to his ruler without precisely accounting him his better. This
constituted the moral and practical limitation of the regal power.
The king might, it is true, do much that was inconsistent with equity
without exactly breaking the law of the land: he might diminish his
fellow-combatants' share of the spoil; he might impose exorbitant
task-works or otherwise by his imposts unreasonably encroach upon
the property of the burgess; but if he did so, he forgot that his
plenary power came not from God, but under God's consent from the
people, whose representative he was; and who was there to protect
him, if the people should in return forget the oath of allegiance
which they had sworn? The legal limitation, again, of the king's
power lay in the principle that he was entitled only to execute the
law, not to alterit. Every deviation from the law had to receive
the previous approval of the assembly of the people and the council
of elders; if it was not so approved, it was a null and tyrannical
act carrying no legal effect. Thus the power of the king in Rome
was, both morally and legally, at bottom altogether different from
the sovereignty of the present day; and there is no counterpart at
all in modern life either to the Roman household or to the Roman
state.
The Community
The division of the body of burgesses was based on the "wardship,"
-curia- (probably related to -curare- = -coerare-, --koiranos--);
ten wardships formed the community; every wardship furnished a
hundred men to the infantry (hence -mil-es-, like -equ-es-, the
thousand-walker), ten horsemen and ten councillors. When communities
combined, each of course appeared as a part (-tribus-) of the
whole community (-tota-in Umbrian and Oscan), and the original unit
became multiplied by the number of such parts. This division had
reference primarily to the personal composition of the burgess-body,
but it was applied also to the domain so far as the latter was
apportioned at all. That the curies had their lands as well as the
tribes, admits of the less doubt, since among the few names of the
Roman curies that have been handed down to us we find along with
some apparently derived from -gentes-, e. g. -Faucia-, others
certainly of local origin, e. g. -Veliensis-; each one of them
embraced, in this primitive period of joint possession of land, a
number of clan-lands, of which we have already spoken.(5)
We find this constitution under its simplest form(6) in the scheme
of the Latin or burgess communities that subsequently sprang up
under the influence of Rome; these had uniformly the number of a
hundred councillors (-centumviri-). But the same normal numbers make
their appearance throughout in the earliest tradition regarding the
tripartite Rome, which assigns to it thirty curies, three hundred
horsemen, three hundred senators, three thousand foot-soldiers.
Nothing is more certain than that this earliest constitutional
scheme did not originate in Rome; it was a primitive institution
common to all the Latins, and perhaps reached back to a period
anterior to the separation of the stocks. The Roman constitutional
tradition quite deserving of credit in such matters, while it
accounts historically for the other divisions of the burgesses,
makes the division into curies alone originate with the origin of
the city; and in entire harmony with that view not only does the
curial constitution present itself in Rome, but in the recently
discovered scheme of the organization of the Latin communities it
appears as an essential part of the Latin municipal system.
The essence of this scheme was, and remained, the distribution
into curies. The tribes ("parts") cannot have been an element of
essential importance for the simple reason that their occurrence
at all was, not less than their number, the result of accident;
where there were tribes, they certainly had no other significance
than that of preserving the remembrance of an epoch when such
"parts" had themselves been wholes.(7) There is no tradition that
the individual tribes had special presiding magistrates or special
assemblies of their own; and it is highly probable that in the
interest of the unity of the commonwealth the tribes which had
joined together to form it were never in reality allowed to have
such institutions. Even in the army, it is true, the infantry had
as many pairs of leaders as there were tribes; but each of these
pairs of military tribunes did not command the contingent of a
tribe; on the contrary each individual war-tribune, as well as all
in conjunction, exercised command over the whole infantry. The
clans were distributed among the several curies; their limits and
those of the household were furnished by nature. That the legislative
power interfered in these groups by way of modification, that it
subdivided the large clan and counted it as two, or joined several
weak ones together, there is no indication at all in Roman tradition;
at any rate this took place only in a way so limited that the
fundamental character of affinity belonging to the clan was not
thereby altered. We may not therefore conceive the number of the
clans, and still less that of the households, as a legally fixed
one; if the -curia- had to furnish a hundred men on foot and ten
horsemen, it is not affirmed by tradition, nor is it credible, that
one horseman was taken from each clan and one foot-soldier from
each house. The only member that discharged functions in the oldest
constitutional organization was the -curia-. Of these there were
ten, or, where there were several tribes, ten to each tribe. Such
a "wardship" was a real corporate unity, the members of which
assembled at least for holding common festivals. Each wardship was
under the charge of a special warden (-curio-), and had a priest of
its own (-flamen curialis-); beyond doubt also levies and valuations
took place according to curies, and in judicial matters the burgesses
met by curies and voted by curies. This organization, however,
cannot have been introduced primarily with a view to voting, for in
that case they would certainly have made the number of subdivisions
uneven.
Equality of the Burgesses
Sternly defined as was the contrast between burgess and non-burgess,
the equality of rights within the burgess-body was complete. No
people has ever perhaps equalled that of Rome in the inexorable
rigour with which it has carried out these principles, the one as
fully as the other. The strictness of the Roman distinction between
burgesses and non-burgesses is nowhere perhaps brought out with
such clearness as in the treatment of the primitive institution
of honorary citizenship, which was originally designed to mediate
between the two. When a stranger was, by resolution of the community,
adopted into the circle of the burgesses, he might surrender his
previous citizenship, in which case he passed over wholly into the
new community; but he might also combine his former citizenship with
that which had just been granted to him. Such was the primitive
custom, and such it always remained in Hellas, where in later
ages the same person not unfrequently held the freedom of several
communities at the same time. But the greater vividness with which
the conception of the community as such was realized in Latium
could not tolerate the idea that a man might simultaneously belong
in the character of a burgess to two communities; and accordingly,
when the newly-chosen burgess did not intend to surrender his
previous franchise, it attached to the nominal honorary citizenship
no further meaning than that of an obligation to befriend and protect
the guest (-jus hospitii-), such as had always been recognized as
incumbent in reference to foreigners. But this rigorous retention
of barriers against those that were without was accompanied by an
absolute banishment of all difference of rights among the members
included in the burgess community of Rome. We have already mentioned
that the distinctions existing in the household, which of course
could not be set aside, were at least ignored in the community; the
son who as such was subject in property to his father might thus,
in the character of a burgess, come to have command over his father
as master. There were no class-privileges: the fact that the Tities
took precedence of the Ramnes, and both ranked before the Luceres,
did not affect their equality in all legal rights. The burgess
cavalry, which at this period was used for single combat in front
of the line on horseback or even on foot, and was rather a select
or reserve corps than a special arm of the service, and which
accordingly contained by far the wealthiest, best-armed, and
best-trained men, was naturally held in higher estimation than the
burgess infantry; but this was a distinction purely -de facto-, and
admittance to the cavalry was doubtless conceded to any patrician.
It was simply and solely the constitutional subdivision of the
burgess-body that gave rise to distinctions recognized by the law;
otherwise the legal equality of all the members of the community
was carried out even in their external appearance. Dress indeed
served to distinguish the president of the community from its members,
the grown-up man under obligation of military service from the boy
not yet capable of enrolment; but otherwise the rich and the noble
as well as the poor and low-born were only allowed to appear in
public in the like simple wrapper (-toga-) of white woollen stuff.
This complete equality of rights among the burgesses had beyond
doubt its original basis in the Indo-Germanic type of constitution;
but in the precision with which it was thus apprehended and
embodied it formed one of the most characteristic and influential
peculiarities of the Latin nation. And in connection with this we
may recall the fact that in Italy we do not meet with any race of
earlier settlers less capable of culture, that had become subject
to the Latin immigrants.(8) They had no conquered race to deal
with, and therefore no such condition of things as that which gave
rise to the Indian system of caste, to the nobility of Thessaly
and Sparta and perhaps of Hellas generally, and probably also to
the Germanic distinction of ranks.
Burdens of the Burgesses
The maintenance of the state economy devolved, of course, upon
the burgesses. The most important function of the burgess was his
service in the army; for the burgesses had the right and duty of
bearing arms. The burgesses were at the same time the "body of
warriors" (-populus-, related to -populari-, to lay waste): in the
old litanies it is upon the "spear-armed body of warriors" (-pilumnus
poplus-) that the blessing of Mars is invoked; and even the designation
with which the king addresses them, that of Quirites,(9) is taken
as signifying "warrior." We have already stated how the army of
aggression, the "gathering" (-legio-), was formed. In the tripartite
Roman community it consisted of three "hundreds" (-centuriae-) of
horsemen (-celeres-, "the swift," or -flexuntes-, "the wheelers")
under the three leaders-of-division of the horsemen (-tribuni
celerum-)(10) and three "thousands" of footmen (-milties-) under
the three leaders-of-division of the infantry (-tribuni militum-),
the latter were probably from the first the flower of the general
levy. To these there may perhaps have been added a number
of light-armed men, archers especially, fighting outside of the
ranks.(11) The general was regularly the king himself. Besides
service in war, other personal burdens might devolve upon the burgesses;
such as the obligation of undertaking the king's commissions in
peace and in war,(12) and the task-work of tilling the king's lands
or of constructing public buildings. How heavily in particular the
burden of building the walls of the city pressed upon the community,
is evidenced by the fact that the ring-walls retained the name
of "tasks" (-moenia-). There was no regular direct taxation, nor
was there any direct regular expenditure on the part of the state.
Taxation was not needed for defraying the burdens of the community,
since the state gave no recompense for serving in the army, for
task-work, or for public service generally; so far as there was any
such recompense at all, it was given to the person who performed
the service either by the district primarily concerned in it, or by
the person who could not or would not himself serve. The victims
needed for the public service of the gods were procured by a tax
on actions at law; the defeated party in an ordinary process paid
down to the state a cattle-fine (-sacramentum-) proportioned to
the value of the object in dispute. There is no mention of any
regular presents to the king on the part of the burgesses. On the
other hand there flowed into the royal coffers the port-duties,(13)
as well as the income from the domains--in particular, the pasture
tribute (-scriptura-) from the cattle driven out upon the common
pasture, and the quotas of produce (-vectigalia-) which those
enjoying the use of the lands of the state had to pay instead of
rent. To this was added the produce of cattle-fines and confiscations
and the gains of war. In cases of need a contribution (-tributum-)
was imposed, which was looked upon, however, as a forced loan and
was repaid when the times improved; whether it fell upon the burgesses
generally, or only upon the --metoeci--, cannot be determined; the
latter supposition is, however, the more probable.
The king managed the finances. The property of the state,
however, was not identified with the private property of the king;
which, judging from the statements regarding the extensive landed
possessions of the last Roman royal house, the Tarquins, must have
been considerable. The ground won by arms, in particular, appears to
have been constantly regarded as property of the state. Whether and
how far the king was restricted by use and wont in the administration
of the public property, can no longer be ascertained; only the
subsequent course of things shows that the burgesses can never have
been consulted regarding it, whereas it was probably the custom to
consult the senate in the imposition of the -tributum- and in the
distribution of the lands won in war.
Rights of the Burgesses
The Roman burgesses, however, do not merely come into view as
furnishing contributions and rendering service; they also bore a
part in the public government. For this purpose all the members
of the community (with the exception of the women, and the children
still incapable of bearing arms)--in other words, the "spearmen"
(-quirites-) as in addressing them they were designated--assembled
at the seat of justice, when the king convoked them for the purpose
of making a communication (-conventio-, -contio-) or formally bade
them meet (-comitia-) for the third week (-in trinum noundinum-),
to consult them by curies. He appointed such formal assemblies
of the community to be held regularly twice a year, on the 24th of
March and the 24th of May, and as often besides as seemed to him
necessary. The burgesses, however, were always summoned not to
speak, but to hear; not to ask questions, but to answer. No one
spoke in the assembly but the king, or he to whom the king saw
fit to grant liberty of speech; and the speaking of the burgesses
consisted of a simple answer to the question of the king,
without discussion, without reasons, without conditions, without
breaking up the question even into parts. Nevertheless the Roman
burgess-community, like the Germanic and not improbably the primitive
Indo-Germanic communities in general, was the real and ultimate
basis of the political idea of sovereignty. But in the ordinary
course of things this sovereignty was dormant, or only had its
expression in the fact that the burgess-body voluntarily bound
itself to render allegiance to its president. For that purpose
the king, after he had entered on his office, addressed to the
assembled curies the question whether they would be true and loyal
to him and would according to use and wont acknowledge himself as
well as his messengers (-lictores-); a question, which undoubtedly
might no more be answered in the negative than the parallel homage
in the case of a hereditary monarchy might be refused.
It was in thorough consistency with constitutional principles that
the burgesses, just as being the sovereign power, should not on
ordinary occasions take part in the course of public business. So
long as public action was confined to the carrying into execution
of the existing legal arrangements, the power which was, properly
speaking, sovereign in the state could not and might not interfere:
the laws governed, not the lawgiver. But it was different where a
change of the existing legal arrangements or even a mere deviation
from them in a particular case was necessary; and here accordingly, under
the Roman constitution, the burgesses emerge without exception as
actors; so that each act of the sovereign authority is accomplished
by the co-operation of the burgesses and the king or -interrex-.
As the legal relation between ruler and ruled was itself sanctioned
after the manner of a contract by oral question and answer, so
every sovereign act of the community was accomplished by means of
a question (-rogatio-), which the king addressed to the burgesses,
and to which the majority of the curies gave an affirmative answer.
In this case their consent might undoubtedly be refused. Among
the Romans, therefore, law was not primarily, as we conceive it,
a command addressed by the sovereign to the whole members of the
community, but primarily a contract concluded between the constitutive
powers of the state by address and counter-address.(14) Such
a legislative contract was -de jure- requisite in all cases which
involved a deviation from the ordinary consistency of the legal
system. In the ordinary course of law any one might without
restriction give away his property to whom he would, but only
upon condition of its immediate transfer: that the property should
continue for the time being with the owner, and at his death pass
over to another, was a legal impossibility--unless the community
should allow it; a permission which in this case the burgesses
could grant not only when assembled in their curies, but also when
drawn up for battle. This was the origin of testaments. In the
ordinary course of law the freeman could not lose or surrender the
inalienable blessing of freedom, and therefore one who was subject
to no housemaster could not subject himself to another in the place
of a son--unless the community should grant him leave to do so. This
was the -abrogatio-. In the ordinary course of law burgess-rights
could only be acquired by birth and could never be lost--unless
the community should confer the patriciate or allow its surrender;
neither of which acts, doubtless, could be validly done originally
without a decree of the curies. In the ordinary course of law
the criminal whose crime deserved death, when once the king or his
deputy had pronounced sentence according to judgment and justice,
was inexorably executed; for the king could only judge, not
pardon--unless the condemned burgess appealed to the mercy of the
community and the judge allowed him the opportunity of pleading
for pardon. This was the beginning of the -provocatio-, which for
that reason was especially permitted not to the transgressor who
had refused to plead guilty and had been convicted, but to him
who confessed his crime and urged reasons in palliation of it. In
the ordinary course of law the perpetual treaty concluded with a
neighbouring state might not be broken--unless the burgesses deemed
themselves released from it on account of injuries inflicted on
them. Hence it was necessary that they should be consulted when an
aggressive war was contemplated, but not on occasion of a defensive
war, where the other state had broken the treaty, nor on the
conclusion of peace; it appears, however, that the question was in
such a case addressed not to the usual assembly of the burgesses,
but to the army. Thus, in general, it was necessary to consult the
burgesses whenever the king meditated any innovation, any change
of the existing public law; and in so far the right of legislation
was from antiquity not a right of the king, but a right of the king
and the community. In these and all similar cases the king could
not act with legal effect without the cooperation of the community;
the man whom the king alone declared a patrician remained as before
a non-burgess, and the invalid act could only carry consequences
possibly -de facto-, not -de jure-. Thus far the assembly of the
community, however restricted and bound at its emergence, was yet
from antiquity a constituent element of the Roman commonwealth,
and was in law superior to, rather than co-ordinate with, the king.
The Senate
But by the side of the king and of the burgess-assembly there
appears in the earliest constitution of the community a third
original power, not destined for acting like the former or for
resolving like the latter, and yet co-ordinate with both and within
its own rightful sphere placed over both. This was the council
of elders or -senatus-. Beyond doubt it had its origin in the
clan-constitution: the old tradition that in the original Rome the
senate was composed of all the heads of households is correct in
state-law to this extent, that each of the clans of the later Rome
which had not merely migrated thither at a more recent date referred
its origin to one of those household-fathers of the primitive
city as its ancestor and patriarch. If, as is probable, there was
once in Rome or at any rate in Latium a time when, like the state
itself, each of its ultimate constituents, that is to say each
clan, had virtually a monarchical organization and was under the
rule of an elder--whether raised to that position by the choice
of the clansmen or of his predecessor, or in virtue of hereditary
succession--the senate of that time was nothing but the collective
body of these clan-elders, and accordingly an institution independent
of the king and of the burgess-assembly; in contradistinction to
the latter, which was directly composed of the whole body of the
burgesses, it was in some measure a representative assembly of
persons acting for the people. Certainly that stage of independence
when each clan was virtually a state was surmounted in the Latin
stock at an immemorially early period, and the first and perhaps
most difficult step towards developing the community out of
the clan-organization--the setting aside of the clan-elders--had
possibly been taken in Latium long before the foundation of Rome;
the Roman clan, as we know it, is without any visible head, and no
one of the living clansmen is especially called to represent the
common patriarch from whom all the clansmen descend or profess to
descend so that even inheritance and guardianship, when they fall
by death to the clan, devolve on the clan-members as a whole.
Nevertheless the original character of the council of elders
bequeathed many and important legal consequences to the Roman
senate. To express the matter briefly, the position of the senate
as something other and more than a mere state-council--than an
assemblage of a number of trusty men whose advice the king found
it fitting to obtain--hinged entirely on the fact that it was once
an assembly, like that described by Homer, of the princes and rulers
of the people sitting for deliberation in a circle round the king.
So long as the senate was formed by the aggregate of the heads
of clans, the number of the members cannot have been a fixed one,
since that of the clans was not so; but in the earliest, perhaps
even in pre-Roman, times the number of the members of the council
of elders for the community had been fixed without respect to
the number of the then existing clans at a hundred, so that the
amalgamation of the three primitive communities had in state-law
the necessary consequence of an increase of the seats in the senate
to what was thenceforth the fixed normal number of three hundred.
Moreover the senators were at all times called to sit for life; and
if at a later period the lifelong tenure subsisted more -de facto-
than -de jure-, and the revisions of the senatorial list that
took place from time to time afforded an opportunity to remove the
unworthy or the unacceptable senator, it can be shown that this
arrangement only arose in the course of time. The selection of
the senators certainly, after there were no longer heads of clans,
lay with the king; but in this selection during the earlier epoch,
so long as the people retained a vivid sense of the individuality
of the clans, it was probably the rule that, when a senator died,
the king should call another experienced and aged man of the same
clanship to fill his place. It was only, we may surmise, when the
community became more thoroughly amalgamated and inwardly united,
that this usage was departed from and the selection of the senators
was left entirely to the free judgment of the king, so that he was
only regarded as failing in his duty when he omitted to fill up
vacancies.
Prerogatives of the Senate. The -Interregnum-
The prerogatives of this council of elders were based on the view
that the rule over the community composed of clans rightfully
belonged to the collective clan-elders, although in accordance
with the monarchical principle of the Romans, which already found
so stern an expression in the household, that rule could only be
exercised for the time being by one of these elders, namely the
king. Every member of the senate accordingly was as such, not in
practice but in prerogative, likewise king of the community; and
therefore his insignia, though inferior to those of the king, were
of a similar character: he wore the red shoe like the king; only
that of the king was higher and more handsome than that of the
senator. On this ground, moreover, as was already mentioned, the
royal power in the Roman community could never be left vacant When
the king died, the elders at once took his place and exercised the
prerogatives of regal power. According to the immutable principle
however that only one can be master at a time, even now it was only
one of them that ruled, and such an "interim king" (-interrex-) was
distinguished from the king nominated for life simply in respect
to the duration, not in respect to the plenitude, of his authority.
The duration of the office of -interrex- was fixed for the individual
holders at not more than five days; it circulated accordingly among
the senators on the footing that, until the royal office was again
permanently filled up, the temporary holder at the expiry of that
term nominated a successor to himself, likewise for five days,
agreeably to the order of succession fixed by lot. There was not,
as may readily be conceived, any declaration of allegiance to the
-interrex- on the part of the community. Nevertheless the -interrex-
was entitled and bound not merely to perform all the official acts
otherwise pertaining to the king, but even to nominate a king for
life-- with the single exception, that this latter right was not
vested in the first who held the office, presumably because the
first was regarded as defectively appointed inasmuch as he was not
nominated by his predecessor. Thus this assembly of elders was
the ultimate holder of the ruling power (-imperium-) and the divine
protection (-auspicia-) of the Roman commonwealth, and furnished
the guarantee for the uninterrupted continuance of that commonwealth
and of its monarchical--though not hereditarily monarchical--organization.
If therefore this senate subsequently seemed to the Greeks to be
an assembly of kings, this was only what was to be expected; it
had in fact been such originally.
The Senate and the Resolutions of the Community: -Patrum Auctoritas-
But it was not merely in so far as the idea of a perpetual kingdom
found its living expression in this assembly, that it was an essential
member of the Roman constitution. The council of elders, indeed,
had no title to interfere with the official functions of the king.
The latter doubtless, in the event of his being unable personally
to lead the army or to decide a legal dispute, took his deputies
at all times from the senate; for which reason subsequently the
highest posts of command were regularly bestowed on senators alone,
and senators were likewise employed by preference as jurymen. But
the senate, in its collective capacity, was never consulted in
the leading of the army or in the administration of justice; and
therefore there was no right of military command and no jurisdiction
vested in the senate of the later Rome. On the other hand the
council of elders was held as called to the guardianship of the
existing constitution against encroachments by the king and the
burgesses. On the senate devolved the duty of examining every
resolution adopted by the burgesses at the suggestion of the king,
and of refusing to confirm it if it seemed to violate existing
rights; or, which was the same thing, in all cases where a resolution
of the community was constitutionally requisite--as on every
alteration of the constitution, on the reception of new burgesses,
on the declaration of an aggressive war--the council of elders had
a right of veto. This may not indeed be regarded in the light of
legislation pertaining jointly to the burgesses and the senate,
somewhat in the same way as to the two chambers in the constitutional
state of the present day; the senate was not so much law-maker as
law-guardian, and could only cancel a decree when the community
seemed to have exceeded its competence--to have violated by its
decree existing obligations towards the gods or towards foreign
states or organic institutions of the community. But still it was
a matter of the greatest importance that--to take an example--when
the Roman king had proposed a declaration of war and the burgesses
had converted it into a decree, and when the satisfaction which
the foreign community seemed bound to furnish had been demanded in
vain, the Roman envoy invoked the gods as witnesses of the wrong
and concluded with the words, "But on these matters we shall consult
the elders at home how we may obtain our rights;" it was only when
the council of elders had declared its consent, that the war now
decreed by the burgesses and approved by the senate was formally
declared. Certainly it was neither the design nor the effect of
this rule to occasion a constant interference of the senate with
the resolutions of the burgesses, and by such guardianship to divest
them of their sovereign power; but, as in the event of a vacancy
in the supreme office the senate secured the continuance of the
constitution, we find it here also as the shield of legal order in
opposition even to the supreme power--the community.
The Senate As State-Council
With this arrangement was probably connected the apparently very
ancient usage, in virtue of which the king previously submitted
to the senate the proposals that were to be brought before the
burgesses, and caused all its members one after another to give their
opinion on the subject. As the senate had the right of cancelling
the resolution adopted, it was natural for the king to assure
himself beforehand that no opposition was to be apprehended from
that quarter; as indeed in general, on the one hand, it was in
accordance with Roman habits not to decide matters of importance
without having taken counsel with other men, and on the other hand
the senate was called, in virtue of its very composition, to act as
a state-council to the ruler of the community. It was from this
usage of giving counsel, far more than from the prerogatives which
we have previously described, that the subsequent extensive powers
of the senate were developed; but it was in its origin insignificant
and really amounted only to the prerogative of the senators to
answer, when they were asked a question. It may have been usual
to ask the previous opinion of the senate in affairs of importance
which were neither judicial nor military, as, for instance--apart
from the proposals to be submitted to the assembly of the people--in
the imposition of task-works and taxes, in the summoning of the
burgesses to war-service, and in the disposal of the conquered
territory; but such a previous consultation, though usual, was not
legally necessary. The king convoked the senate when he pleased,
and laid before it his questions; no senator might declare his
opinion unasked, still less might the senate meet without being
summoned, except in the single case of its meeting on occasion
of a vacancy to settle the order of succession in the office of
-interrex-. That the king was moreover at liberty to call in and
consult other men whom he trusted alongside of, and at the same
time with, the senators, is in a high degree probable. The advice,
accordingly, was not a command; the king might omit to comply with
it, while the senate had no other means for giving practical effect
to its views except the already-mentioned right of cassation, which
was far from being universally applicable. "I have chosen you,
not that ye may be my guides, but that ye may do my bidding:" these
words, which a later author puts into the mouth of king Romulus,
certainly express with substantial correctness the position of the
senate in this respect.
The Original Constitution of Rome
Let us now sum up the results. Sovereignty, as conceived by
the Romans, was inherent in the community of burgesses; but the
burgess-body was never entitled to act alone, and was only entitled
to co-operate in action, when there was to be a departure from
existing rules. By its side stood the assembly of the elders of
the community appointed for life, virtually a college of magistrates
with regal power, called in the event of a vacancy in the royal
office to administer it by means of their own members until it
should be once more definitively filled, and entitled to overturn
the illegal decrees of the community. The royal power itself was,
as Sallust says, at once absolute and limited by the laws (-imperium
legitimum-); absolute, in so far as the king's command, whether
righteous or not, must in the first instance be unconditionally
obeyed; limited, in so far as a command contravening established
usage and not sanctioned by the true sovereign--the people--carried
no permanent legal consequences. The oldest constitution of Rome
was thus in some measure constitutional monarchy inverted. In
that form of government the king is regarded as the possessor and
vehicle of the plenary power of the state, and accordingly acts of
grace, for example, proceed solely from him, while the administration
of the state belongs to the representatives of the people and to
the executive responsible to them. In the Roman constitution the
community of the people exercised very much the same functions as
belong to the king in England: the right of pardon, which in England
is a prerogative of the crown, was in Rome a prerogative of the
community; while all government was vested in the president of the
state.
If, in conclusion, we inquire as to the relation of the state itself
to its individual members, we find the Roman polity equally remote
from the laxity of a mere defensive combination and from the
modern idea of an absolute omnipotence of the state. The community
doubtless exercised power over the person of the burgess in the
imposition of public burdens, and in the punishment of offences and
crimes; but any special law inflicting, or threatening to inflict,
punishment on an individual on account of acts not universally
recognized as penal always appeared to the Romans, even when there
was no flaw in point of form, an arbitrary and unjust proceeding.
Far more restricted still was the power of the community in respect
of the rights of property and the rights of family which were
coincident, rather than merely connected, with these; in Rome the
household was not absolutely annihilated and the community aggrandized
at its expense, as was the case in the police organization of
Lycurgus. It was one of the most undeniable as well as one of the
most remarkable principles of the primitive constitution of Rome,
that the state might imprison or hang the burgess, but might not take
away from him his son or his field or even lay permanent taxation
on him. In these and similar things the community itself was
restricted from encroaching on the burgess, nor was this restriction
merely ideal; it found its expression and its practical application
in the constitutional veto of the senate, which was certainly entitled
and bound to annul any resolution of the community contravening
such an original right. No community was so all-powerful within
its own sphere as the Roman; but in no community did the burgess
who conducted himself un-blameably live in an equally absolute
security from the risk of encroachment on the part either of his
fellow-burgesses or of the state itself.
These were the principles on which the community of Rome governed
itself--a free people, understanding the duty of obedience, clearly
disowning all mystical priestly delusion, absolutely equal in the
eye of the law and one with another, bearing the sharply-defined
impress of a nationality of their own, while at the same time (as
will be afterwards shown) they wisely as well as magnanimously
opened their gates wide for intercourse with other lands. This
constitution was neither manufactured nor borrowed; it grew up
amidst and along with the Roman people. It was based, of course,
upon the earlier constitutions--the Italian, the Graeco-Italian,
and the Indo-Germanic; but a long succession of phases of political
development must have intervened between such constitutions as the
poems of Homer and the Germania of Tacitus delineate and the oldest
organization of the Roman community. In the acclamation of the
Hellenic and in the shield-striking of the Germanic assemblies there
was involved an expression of the sovereign power of the community;
but a wide interval separated forms such as these from the organized
jurisdiction and the regulated declaration of opinion of the Latin
assembly of curies. It is possible, moreover, that as the Roman
kings certainly borrowed the purple mantle and the ivory sceptre
from the Greeks (not from the Etruscans), the twelve lictors also
and various other external arrangements were introduced from abroad.
But that the development of the Roman constitutional law belonged
decidedly to Rome or, at any rate, to Latium, and that the borrowed
elements in it are but small and unimportant, is clearly demonstrated
by the fact that all its ideas are uniformly expressed by words of
Latin coinage. This constitution practically established for all
time the fundamental conceptions of the Roman state; for, as long
as there existed a Roman community, in spite of changes of form
it was always held that the magistrate had absolute command, that
the council of elders was the highest authority in the state, and
that every exceptional resolution required the sanction of the
sovereign or, in other words, of the community of the people.
Notes for Book I Chapter V
1. This was not merely the case under the old religious marriage
(-matrimonium confarreatione-); the civil marriage also (-matrimonium
consensu-), although not in itself giving to the husband proprietary
power over his wife, opened up the way for his acquiring this
proprietary power, inasmuch as the legal ideas of "formal delivery"
(-coemptio-), and "prescription" (-usus-), were applied without
ceremony to such a marriage. Till he acquired it, and in particular
therefore during the period which elapsed before the completion of
the prescription, the wife was (just as in the later marriage by
-causae probatio-, until that took place), not -uxor-, but -pro
uxore-. Down to the period when Roman jurisprudence became a
completed system the principle maintained its ground, that the wife
who was not in her husband's power was not a married wife, but only
passed as such (-uxor tantummodo habetur-. Cicero, Top. 3, 14).
2. The following epitaph, although belonging to a much later period,
is not unworthy to have a place here. It is the stone that speaks:--
-Hospes, quod deico, paullum est. Asta ac pellige. Heic est
sepulcrum haud pulcrum pulcrai feminae, Nomen parentes nominarunt
Claudiam, Suom mareitum corde dilexit sovo, Gnatos duos creavit,
horunc alterum In terra linquit, alium sub terra locat; Sermone
lepido, tum autem incessu commodo, Domum servavit, lanam fecit.
Dixi. Abei.-
(Corp. Inscr. Lat. 1007.)
Still more characteristic, perhaps, is the introduction of wool-spinning
among purely moral qualities; which is no very unusual occurrence
in Roman epitaphs. Orelli, 4639: -optima et pulcherrima, lanifica
pia pudica frugi casta domiseda-. Orelli, 4861: -modestia probitate
pudicitia obsequio lanificio diligentia fide par similisque cetereis
probeis femina fuit-. Epitaph of Turia, i. 30: domestica bona
pudicitiae, opsequi, comitatis, facilitatis, lanificiis [tuis
adsiduitatis, religionis] sine superstitione, ornatus non conspiciendi,
cultus modici.
3. I. III. Clan-villages
4. Dionysius affirms (v. 25) that lameness excluded from the supreme
magistracy. That Roman citizenship was a condition for the regal
office as well as for the consulate, is so very self-evident as to
make it scarcely worth while to repudiate expressly the fictions
respecting the burgess of Cures.
5. I. III. Clan-villages
6. Even in Rome, where the simple constitution of ten curies otherwise
early disappeared, we still discover one practical application of
it, and that singularly enough in the very same formality which we
have other reasons for regarding as the oldest of all those that
are mentioned in our legal traditions, the -confarreatio-. It seems
scarcely doubtful that the ten witnesses in that ceremony had the
same relation to the constitution of ten curies the thirty lictors
had to the constitution of thirty curies.
7. This is implied in their very name. The "part" (-tribus-) is,
as jurists know, simply that which has once been or may hereafter
come to be a whole, and so has no real standing of its own in the
present.
8. I. II. Primitive Races of Italy
9. -Quiris-, -quiritis-, or -quirinus- is interpreted by the
ancients as "lance-bearer," from -quiris- or -curis- = lance and
-ire-, and so far in their view agrees with -samnis-, -samnitis-
and -sabinus-, which also among the ancients was derived from
--saunion--, spear. This etymology, which associates the word
with -arquites-, -milites-, -pedites-, -equites-, -velites- --those
respectively who go with the bow, in bodies of a thousand, on
foot, on horseback, without armour in their mere over-garment--may
be incorrect, but it is bound up with the Roman conception of a
burgess. So too Juno quiritis, (Mars) quirinus, Janus quirinus,
are conceived as divinities that hurl the spear; and, employed in
reference to men, -quiris- is the warrior, that is, the full burgess.
With this view the -usus loquendi- coincides. Where the locality
was to be referred to, "Quirites" was never used, but always "Rome"
and "Romans" (-urbs Roma-, -populus-, -civis-, -ager Romanus-),
because the term -quiris- had as little of a local meaning as
-civis- or -miles-. For the same reason these designations could
not be combined; they did not say -civis quiris-, because both
denoted, though from different points of view, the same legal
conception. On the other hand the solemn announcement of the
funeral of a burgess ran in the words "this warrior has departed
in death" (-ollus quiris leto datus-); and in like manner the king
addressed the assembled community by this name, and, when he sat in
judgment, gave sentence according to the law of the warrior-freemen
(-ex iure quiritium-, quite similar to the later -ex iure civili-).
The phrase -populus Romanus-, -quirites- (-populus Romanus quiritium-is
not sufficiently attested), thus means "the community and the
individual burgesses," and therefore in an old formula (Liv. i.
32) to the -populus Romanus- are opposed the -prisci Latini-, to
the -quirites- the -homines prisci Latini- (Becker, Handb. ii. 20
seq.)
In the face of these facts nothing but ignorance of language and of
history can still adhere to the idea that the Roman community was
once confronted by a Quirite community of a similar kind, and that
after their incorporation the name of the newly received community
supplanted in ritual and legal phraseology that of the receiver.--Comp.
iv. The Hill-Romans On The Quirinal, note.
10. Among the eight ritual institutions of Numa, Dionysius (ii. 64)
after naming the Curiones and Flamines, specifies as the third the
leaders of the horsemen (--oi eigemones ton Kelerion--). According to
the Praenestine calendar a festival was celebrated at the Comitium
on the 19th March [adstantibus pon]tificibus et trib(unis) celer(um).
Valerius Antias (in Dionys. i. 13, comp. iii. 41) assigns to
the earliest Roman cavalry a leader, Celer, and three centurions;
whereas in the treatise De viris ill. i, Celer himself is termed
-centurio-. Moreover Brutus is affirmed to have been -tribunus
celerum- at the expulsion of the kings (Liv. i. 59), and according
to Dionysius (iv. 71) to have even by virtue of this office made the
proposal to banish the Tarquins. And, lastly, Pomponius (Dig. i.
2, 2, 15, 19) and Lydus in a similar way, partly perhaps borrowing
from him (De Mag. i. 14, 37), identify the -tribunus celerum- with
the Celer of Antias, the -magister equitum- of the dictator under
the republic, and the -Praefectus praetorio- of the empire.
Of these-the only statements which are extant regarding the -tribuni
celerum- --the last mentioned not only proceeds from late and quite
untrustworthy authorities, but is inconsistent with the meaning of
the term, which can only signify "divisional leaders of horsemen,"
and above all the master of the horse of the republican period, who
was nominated only on extraordinary occasions and was in later times
no longer nominated at all, cannot possibly have been identical with
the magistracy that was required for the annual festival of the
19th March and was consequently a standing office. Laying aside, as
we necessarily must, the account of Pomponius, which has evidently
arisen solely out of the anecdote of Brutus dressed up with
ever-increasing ignorance as history, we reach the simple result that
the -tribuni celerum- entirely correspond in number and character
to the -tribuni militum-, and that they were the leaders-of-division
of the horsemen, consequently quite distinct from the -magister
equitum-.
11. This is indicated by the evidently very old forms -velites-and
-arquites-and by the subsequent organization of the legion.
12. I. V. The King
13. I. IV. The Tibur and Its Traffic
14. -Lex- ("that which binds," related to -legare-, "to bind
to something") denotes, as is well known, a contract in general,
along, however, with the connotation of a contract whose terms the
proposer dictates and the other party simply accepts or declines;
as was usually the case, e. g. with public -licitationes-. In the
-lex publica populi Romani- the proposer was the king, the acceptor
the people; the limited co-operation of the latter was thus
significantly indicated in the very language.