Chapter I · THE EARLIEST CONSTITUTION OF ROME (continued 2)
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Yet, though the monarchy was not strictly elective, certain quasi-elective processes were connected by tradition with the appointment of the king, on the part both of Senate and people.
The authority of the Senate (auctoritas patrum) is mentioned in connexion with all the transmissions of the supreme office.[185] It is an authority, however, which did not spring from any theory of the Senate’s possessing elective powers, but was simply a result of the universal principle that no man in authority should act without taking advice of his consilium, and was merely an outcome of the constitutional necessity which the king was under of consulting the Senate on all great measures affecting the popular welfare. The greatest of these would be the appointment of a successor.
Secondly, we are told of a formal ratification of the king’s power by the people assembled in the comitia curiata, one which continued into the Republic under the title of the lex curiata, a formal sanction always required for the ratification of an imperium already assumed.[186] It is said to have had this character even in the time of the monarchy, and this was thought to be shown by the fact that the king himself proposed the lex curiata which was to give the sanction for the exercise of his own power.[187] Such procedure was, indeed, necessary, since no one but the king had the right of putting the question to the people; consequently we must accept the view that the lex curiata was not absolutely necessary for the exercise of power, and might be legally, though not perhaps constitutionally, withheld, as it was by King Servius during the early part of his reign.[188]
The Roman jurists, who believed that the king was elected, credited the people with two distinct acts in the creation of a king—first, his election, and then the formal ratification of this election.[189] A parallel for this seemed to be furnished by Republican usage, where the lex was taken by magistrates already elected as a necessary preliminary to the exercise of the imperium. But at this period the magistrates were not elected by the comitia curiata, and the lex of this assembly is a mere survival, a reminiscence of the formal sovereignty which continued to be vested in the curiae. The lex curiata is much more comprehensible in origin if the king was first nominated independently of the people and then challenged their allegiance. It was probably little more than an acclamation on the first summons of the curiae by the king. The preceding king must have already made known to the people his choice of a successor, and the popular sentiment would have been already expressed; thus there was little chance of adverse shouts when the new king challenged the allegiance of his burgesses. If there was a chance of the challenge not being accepted, it might, as we saw, be withheld. But an exercise of the regal imperium which was not sanctioned by these two acts of Senate and people—the expressed will of the one and the declared allegiance of the other—was regarded by later authorities as unconstitutional.[190]
There was also a religious aspect of the king’s appointment. His assumption of power was regarded as incomplete until it had been shown that the gods sanctioned the rule which he had assumed. This was done by the first taking of the auspices[191]—a ceremony observed by magistrates of the Republic before entering on the exercise of their office. This was the final test for the right to exercise secular power; but the king’s position as high-priest of the community was supposed to require another initiatory act.
This was the inauguration, which differed from the taking of the auspices. In the ordinary form of the auspicia the individual entering on office has himself the right of spectio;[192] in the Republic it belonged to magistrates as such, and was never regarded as a merely priestly function. In the special inauguration, on the contrary, the spectio is taken by some other than the person inaugurated. The priest-king Numa is naturally associated with this ceremony by tradition; by him an appointed augur is employed to watch for signs,[193] and this ceremony of inauguration by one of the priesthood, other than the person so inaugurated, is represented as being from this time onwards a standing part of the procedure requisite for entrance on the regal office. But this legend of Numa is rendered somewhat incredible by the fact that the augurs have no right of spectio, and that of all the priests of the Republic it is only the semi-magisterial pontifex maximus, the head of the state religion, who has the right of taking auspices. The fact that the rex sacrorum in the Republic had a special inauguration[194] might lend support to the legend, were it not that this rex had become wholly a priest and thus lost his right of intercourse with the gods through the spectio. The question of the inauguration of the king, unimportant in itself, runs up into two wider questions; the first is whether there was a separation in idea between the king’s magisterial and his priestly functions; the second, whether the king was himself pontifex maximus and thus the supreme head of the Roman religion.
For an answer to the first question it is not safe to appeal to later examples, for the priesthood and the magistracy may have been first sundered during the Republic. But tradition[195] and survivals represent the king as the first priest in the community. His successor, the rex sacrorum, ranks, as a priest, above the three great flamines and the pontifex maximus in the order of the priesthood (ordo sacerdotum);[196] the religious duties of this rex point to the fact that the king’s functions were a regular cultus, not the occasional religious duties of a Roman magistrate,[197] while his wife, the regina sacrorum, had her own simultaneous sacrifices.[198]
But the position of first priest did not in the Republic imply the headship of the Roman religion; the chief pontiff, who is its head, comes, as we saw, low in the order of the priesthood. The importance of cultus and of religious authority springing from higher knowledge are not the same. The pontiffs are only secondarily a priestly, primarily they are a religious order, whose position is based on the knowledge of religious law (fas). The separation between the true priesthood and the presidency of religion may, indeed, have been a Republican development, due to the secularisation of the magistracy; the priestly functions of the magistrate being continued in the rex sacrorum, and the religious presidency being also separated from the civil power, but vested in another official, the chief pontiff. But it is possible that the separation may have been primitive, and that cultus and the knowledge of religious law did not go together. It is evident that great uncertainty prevailed as to the king’s relation to the pontifical college. While one account speaks of Numa selecting Numa Marcius as “the pontiff,”[199] another describes the same king as instituting five pontiffs,[200] and we are further told that, before the lex Ogulnia (300 B.C.), the college consisted of four members.[201] The discrepancy between the two last accounts has been reconciled by supposing that the king himself was reckoned as a member of the college, and that the expulsion of the king reduced the number from five to four.[202] It is possible that the king did not bear the title pontifex maximus and was yet head of the college; it is even possible that, as one account which we have quoted seems to indicate,[203] there was a chief pontiff as his delegate. We can hardly refuse him a place at this board in face of the evidences which point to his universal headship of religion. The creation of the augurate and the priesthoods is his work. Romulus appoints the augurs;[204] Numa institutes the three great Flamines, the Salii, and the Pontifex, although most of the important ceremonies of religion are performed by himself personally.[205] Consequently we may conclude that the appointment of special individuals to these priesthoods must have been a part of the king’s office.[206] It has even been held (chiefly as an inference from the fact that the Vestals and Flamens were in the potestas of the pontifex maximus of the Republic) that the former were the king’s unmarried daughters who attended to the sacred fire of the state in the king’s house, the latter his sons whose duty it was to kindle the fire for the sacrificial worship of particular deities, Jupiter, Mars, and Quirinus. This pleasing picture may have represented the primitive state of the patriarchal kingship; but this had been long outgrown before the close of the monarchy. There we find a fully developed hierarchy and the existence of religious guilds, such as those of pontiffs and augurs, who cultivate the science, not the mere ritual of religion, and who have no possible connexion with the king’s household arrangements.
At the head of this imposing organisation stands the rex, and, in virtue of this position, he is the chief expounder of the rules of divine law (fas). It is a law which has hardly any limits, running parallel with civil justice (jus) but far beyond its bounds. Three methods of its operation may conveniently be distinguished. One is purely religious and ritualistic and is expressed in the control of priesthoods, religious colleges, and cults. The second asserts itself in a control over the life of the ordinary citizen in matters criminal and civil. The third is that which connects the Roman state with other independent communities and forms the international law of the period.
(i.) The control over priesthood and cultus belongs to the history of religion rather than to that of constitutional law, and it chiefly presents a legal aspect in connexion with the question of religious jurisdiction. The difficult questions that arose in Republican times from the clashing of the religious and the civil power could hardly have been heard of as yet, for the supreme control of both was vested in the same man. But the very nature of this disciplinary jurisdiction over priests has been a matter of some dispute. The favourite hypothesis of a family jurisdiction has been applied to the case, and the hypothesis may conceivably be correct so far as the Flamens and the Vestals are concerned, although even in this sphere it is doubtful by what paternal right the head of religion could do the Vestal’s paramour to death. Other phases of the power are still more inexplicable on this ground. A right of punishing augurs for a breach of ritualistic rules survived into the Republic, and seems to be a jurisdiction exercised over them as members of a religious body. There is, however, no trace of the priesthood holding a privileged position, and in all secular matters its members are subject to the ordinary law. Such privileges as they possess rest on religious scruples. When the Flamen was caught (captus) for the god, he became free from the paternal power,[207] and the civil authority could not compel him to take an oath.[208] The persons of the Vestals were inviolable;[209] the sanctity of both Flamens and Vestals also invested them with the right of asylum. The bonds were struck off the prisoner who took refuge in the Flamen’s house; and, if the criminal on the way to punishment met him or the Vestal, he could not be scourged or executed on that day. But it is only in these two cases that the severance from the world is strongly marked; we have no reason for believing that, in the earliest period of Rome’s history, the members of the religious orders were isolated from the mass of the people with privileges and a jurisdiction all their own.
The control of the cultus, and the maintenance of its purity, are marked as one of the earliest duties of the pontifex maximus, and must have belonged to the king. It is he that sees that no ancestral right is neglected, no foreign one acquired.[210] Here we have a religious power that governs more than the priesthood; the maintenance of the sacra privata are as important in its eyes as that of the sacra publica, and its supervision must have extended beyond the limits of the Patriciate; for it is impossible to believe that religion cared only for the sacra of the patrician clans, and aimed only at preventing them from corrupting their ancestral worship. The Plebeian and the client were under the protection of the gods, and might bring down a curse on the community by reckless innovation or neglect.
(ii.) The control exercised by fas over the citizens’ life in matters not immediately connected with ritual and worship may be first illustrated by its penal sanctions. We cannot, indeed, say that there was a time when the Roman law regarded every crime as a sin, for from the very first we are confronted with a dualism, and religious and secular sanctions exist side by side. But religion has left a deeper impress here than elsewhere—in the name given to punishment,[211] in the form of its infliction, in the still stranger fact that, by the disappearance of religious sanctions, breaches of obligation that the modern world regards as crimes remained unpunished by the secular arm.
The punishment for sin must be some form of expiation. This is the piaculum adjudged in the monarchy as in Republican times by the head of religion; and not adjudged arbitrarily, for even by the close of the monarchical period classes of offences had doubtless been drawn up by the pontiffs with the equivalent expiation, which was directed to avert the anger of the gods from the whole community. Apart from the regularly recurring lustrations at the census—the consequence of the sense of universal sinfulness in the community—individual misdeeds could be expiated in this way. Such was a murder that was unintentional or in which mitigating circumstances were present,[212] and such was the violation of the chastity of Juno’s person through the touching of her altar by a paelex.[213] In graver cases expiation could only be accepted where there was no intent,[214] as in the wrong done to a god by swearing falsely in his name.[215] There was also a class of deadly sins for which the gods would accept no atonement but the life and the goods of the sinner himself. Amongst the acts which called forth this consecratio capitis were the violation of the relations of client and patron,[216] the ill-treatment of elders by their children,[217] the pulling up or alteration of boundary stones,[218] the destruction of a neighbour’s corn by night.[219] The god thus appeased was often the deity who was held to be specially offended by the act; but sometimes the head and the goods were not dedicated to the same divinities. The person was adjudged to Jupiter, the dispenser of life; the landed property to the gods who nourish the human race, Ceres and Liber.[220] This custom of consecration gradually ceased to have its literal fulfilment. A man might still be declared sacer, but excommunication had taken the place of immolation. Such a man was cut off from all divine and, therefore, from all human help, and his slayer was blood-guiltless.[221] This theory, of a man being cut off from the community while his life was spared, became of great importance in the history of Roman criminal law. It survived in the “interdiction of fire and water” (aquae et ignis interdictio), and familiarised the Romans with the idea that the severest penalty did not require the sacrifice of life.
In matters of private law we have already witnessed the presence of religion in marriage, adoption, testament, and the transmission of the sacra. Its authority may be further illustrated by the formularies of civil procedure. Here the form of words was all-important, and in the early Republic all binding formulae, whether for oaths that were to be effectual, for vows or for consecration, were known only to the pontiffs. The solemn forms of law (legis actiones) issued from the same authority, and in one of their most frequent manifestations, the sacramentum, the procedure was distinctly religious.[222] But who could say whether the king, when he gave the prescribed form of words for an action, acted as a religious or a civil head, as the representative of fas or jus? Here we are on the borderland between the two.
(iii.) Nations know no common jus, and fas is the sole support of international law. Each people is protected by its own divine guardians; hence a war of two nations is a contest between their gods, and a treaty between two peoples a compact between their respective divinities. But each nation is to some extent under the protection of the other’s gods. Jupiter of Rome is powerless if the war commenced by Rome is unjust, and will punish his own people if they have stained his honour by violating a treaty. Even though there is no belief in community of guardianship, the rights of other peoples are still conceived to be under the protection of the Roman gods.
These beliefs necessitated elaborate religious preliminaries to the declaration of a war in order that it might be just and holy (justum piumque),[223] as well as ceremonies for the conclusion of a peace that was to bind the public conscience (fides publica).[224] Such a ritual may have been performed, originally, by the king himself; but tradition states that, at a very early period, a special guild of priests, the Fetiales or public orators, were appointed for this purpose.[225] Their chief functions were the declaration of war and the conclusion of peace, but the ritual observed in both of these acts may be more appropriately described when we are dealing with the international relations of Rome. There were other religious preliminaries to a war which, though not necessitated by divine law, it was highly expedient to observe, in order to increase the chances of victory. Vows (vota) were offered to the native gods, and for these to be valid they must be couched in a form prescribed by the pontifical college.[226] And sometimes the king, before a battle or a siege, chants an incantation (carmen), the purport of which is to weaken the loyalty of the enemies’ gods to their worshippers, and to bring them over to the side of Rome. He bribes them with temples, offerings, and the honours of a special cult.[227] If the bribery is effective and the city falls, he must carry out his pledge. The conquered gods are received at Rome; and their worship is guaranteed by the distribution of their cults over the patrician clans.[228] The instances preserved of this devotio and evocatio naturally date from the time of the Republic.[229] During this period the forms are prescribed by the pontiffs. But the antiquity of the procedure is beyond question. The results of evocation on the part of the king, who was his own pontiff, are manifested in the local worships of the conquered towns of Latium, which found an early home at Rome.
If we turn from the religious to the civil powers of the king, it is easier to estimate their extent than to determine the precise modes of their exercise. Later belief credited him with the sole executive power of the state. The Roman kings possessed πᾶσα ἀρχή, and exercised the imperium at their own discretion.[230] Such statements are not surprising if we remember what is implied in the imperium, and that there appear to have been no legal limitations to its exercise during the monarchy. Imperium implied the combination of the highest military and civil authority; it united jurisdiction with command in war, and it included the further right of intercourse with the people (jus rogandi); while the later restrictions on this power, the limitation of office by time or by colleagueship, had not yet been created. The king held office for life, and he had no colleague; for the other officials in the state must have been mere delegates whom, in the strict theory of the constitution, he permitted to exist.
But if the king’s power was legally free from restraint, and we do not believe that there was any large body of leges binding his authority, it could not have been free from the limitations imposed by custom and constitutional usage. Customary law securing rights for the people is said to have been raised to the level of positive law by Servius Tullius.[231] But even the earlier usages must have formed a kind of code—such a code as that which contained the pontifical ordinances known as the leges regiae.[232] It was the belief in the existence of this early customary law which led to the later description of the king’s power as an imperium legitimum.[233] Amongst his constitutional obligations was that of consulting the Senate in any important matter.
There can be little doubt that the original council of elders (senatus) was a body of nominees selected by the king as his permanent advising body (consilium publicum).[234] In consequence the position of senator could not have been a life-office; there could neither have been any definite mode of attaining the dignity, nor any claim on the part of an individual to retain it. A new king might decline to summon some of his predecessor’s councillors; he might even, perhaps, change the personnel of his advisers during the course of his reign. It was in later times believed that the freedom of selection was so great that no stigma attached to members who were “passed over” (praeteriti) by the king.[235]
Yet tradition attributes a definiteness to the Senate which is not consistent with the idea of a purely arbitrary selection. Its numbers at any given time are fixed, and it is to some extent made representative of the whole patrician community—for an increase in the number of full burgesses involved a corresponding increase in the numbers of this body.[236] The number, originally 100,[237] was raised by successive steps to 300 before the close of the monarchy.[238] The two obvious units of representation were the curiae and the clans; but the latter, from their larger numbers, formed a better basis for reflecting the opinion of the whole community, and tradition does seem to have imposed a kind of constitutional necessity on the king of distributing his councillors as evenly as possible amongst the patrician gentes.[239] It was thus that the distinction between the older and the newer clans was perpetuated in the procedure of the Senate;[240] but the clan-influence left its strongest mark by giving a name to the members of the body itself. It was the leading heads of families (patres familias seniores) that the king summoned; and, in asking their advice, he addressed them as “heads of houses” (patres).
The primitive Senate is credited with two standing powers—the patrum auctoritas and the initiation of an interregnum. Neither of these prerogatives was directly contemplated by the constitution, and the Senate never becomes a corporation possessing powers in its own right until the time of the Empire. Tradition mentions the “authority of the fathers” as being necessary for the appointment of a new king; it leaves it to be inferred that it was required for the validity of laws as well, an inference probably not true of the period of the monarchy. As we have already explained, it was a legal right only in so far as it was an extreme instance of the necessity the magistrate was under of taking advice. Perhaps towards the close of the monarchy, with reference to the choice of a successor to the throne, custom had made it a standing prerogative. The interregnum rests on a somewhat different basis; it was a power which religion enjoined should be in the hands of the whole patrician community—usage had delegated the power to the patrician Senate; so here again we have a prerogative which rested wholly on custom.
A privilege only less constant than these was probably the control of foreign policy. The formula of the Fetiales, which is said to have dated from their institution during the monarchy, contains the clause: “But on these matters we will consult the elders at home, how we may obtain our rights.”[241] It was thus the duty of the king to consult the Senate in all matters affecting the international relations of the state. For a declaration of war, perhaps, even this was not sufficient. Tradition believed that, in this matter, reference must be made to the people assembled in the comitia curiata.[242]
On the other hand, the right of making treaties (foedera) with states could not have been limited in this way. For the treaty made in time of peace the Senate, and perhaps the people, were consulted; but this could hardly have been the case with the treaty which closed a war and which was made on the field of battle. In the Republic there survives a shadowy and disputed right of the imperator in the field to make a treaty which shall bind the people. The right was denied, but only on the ground that the general could not take an oath binding on the public conscience. But the king was at once general and high-priest; he could doubtless take this oath even without the assistance of his servants, the Fetiales.
There were other manifestations of the king’s power as general over which the people would have no control. The disposal of the booty taken in war and of the conquered lands was one of these,[243] and the statements which record this right find support in Republican survivals. The control of the spoils of war (at least of the movable portions) belongs to the Republican general, subject to the advice of his council of war and sometimes to subsequent ratification by the Senate. The first condition may have been necessary in the time of the monarchy, but hardly the second.
The council of war was a type of the smaller special consilia, which the king doubtless employed to advise him in different branches of the administration; and such special councils must have been chosen from the great consilium publicum, the Senate. One of the most important of these was that which furnished his assessors in jurisdiction. That it became the custom, in the more important cases judged by the king in person, to employ a consilium of some sort, is stated in the charge brought by tradition against Tarquinius Superbus that he neglected this essential guarantee of even justice.[244] In the secular criminal jurisdiction of the king such a council would doubtless have been taken from the Senate. In the religious jurisdiction, which we have considered, the pontiffs would have been the advising board.
Senators also must have been chiefly chosen as delegates of the king, except, perhaps, those appointed for subordinate command in war;[245] there military fitness would be chiefly looked to.
The chief of these delegates was the prefect of the city (praefectus urbi), an alter ego left behind in the capital by the king when he himself was absent in the field.[246] To him must have been delegated the whole of the executive power, and with it the right and duty of consulting the Senate. It is not probable that the right of questioning the people was or could be delegated.[247] In criminal jurisdiction a distinction was believed to have been made in the cases brought before the king; the more important were tried by himself in person, the less important transmitted to judges chosen from the Senate.[248] This may be the germ of a distinction which is said to have been perfected by Servius Tullius. Crimes affecting the public welfare he tried himself; wrongs done to private individuals he entrusted to others.[249]
This principle of delegation is mentioned only in connexion with criminal jurisdiction. But, whatever its extent, it necessitated the grant by the magistrate to his delegate of a formula or lex, which was the expression of jus. This jus, “that which is right or fitting,” expressed the order of society, as realised through human agency, not directly through the divine will.[250] It is possible that even in early Rome it was treated as a right, a faculty of action (facultas agendi) or liberty enjoyed by one man against another, by individuals against corporations or by corporations against individuals. The differentiation between the rights of the state and the rights of the individual, always marked in procedure long before it is formulated in theory, finds expression in the change which tradition attributes to Servius.[251] But there was never any clear line of demarcation between the two spheres. Much of what we call criminal law was at Rome a matter for civil actions dependent on private initiative, and such actions could in early times be brought only by the head of the family. But in so far as the early Romans had a criminal law, in so far, that is, as an offence against the individual could be regarded as a wrong done to society, this law was a part of the jus publicum.
The king was the sole exponent of this sense of violated right, and the sole interpreter of the jus fixed by custom or by law. Over the penalty he probably had little control. It was enjoined in his ruling and carried out by his lictors; but, in its various forms—death by the arbor infelix or from the Tarpeian rock—it was fixed by the mos majorum. The trial was a personal investigation (quaestio) undertaken by the king, with the assistance of a chosen body of advisers; and he might give judgment himself. But sometimes his judgment was conditioned. He specified the crime under which the accused was to be tried, and the penalty to be inflicted, but left the finding on the facts to his delegates.[252] Two such classes of delegates are attributed to the regal period, the duumviri perduellionis and the quaestores parricidii.[253]
There may have been an appeal from the delegates to the king, but tradition does not credit the king with any power of pardon. Whether the power of pardon resided anywhere depends on our interpretation of the trial of Horatius,[254] which was believed to furnish the archetype of the provocatio. From this story appears the belief, which is often stated by other authorities,[255] that the appeal to the people existed in the regal period, but one modified by the view that the citizens had no standing right of appeal against the king such as that secured against the Republican magistrate by the lex Valeria. The king, Tullus Hostilius, allows the appeal.[256] The early dictatorship was similarly exempt from the necessity of permitting it, and on one occasion the precedent of Horatius was appealed to for the purpose of showing that, as the king had allowed, so the dictator should allow, the appeal.[257] But the dictatorship is a revival of the military side of the monarchy with the military jurisdiction which the king exercises over Horatius. It is quite possible that before the close of the monarchy custom had established different spheres of criminal jurisdiction for the people and the king respectively;[258] in some the people might have had a right to be judges in the last resort, and it is the idea of calling away a case to another court that is suggested by the word provocatio, not the modern idea of pardon.[259] In other spheres the king could judge alone; the provocatio here is an act of grace. If, however, we consider the extent of the military and religious jurisdiction of the king, the competence of the people must have been small;[260] and the provocatio itself may be a growth of the later monarchical period, the result of custom, and of a custom based chiefly on the permit of the king.
Civil jurisdiction is said to have been based on the king’s judgment.[261] How far this royal jurisdiction was personal we cannot say, but under all circumstances the king was the chief source of the jus privatum, in so far as he and his pontiffs alone knew the formularies of action,[262] the most precise verbal accuracy in which was necessary for the successful conduct of a suit. It is probable that in many cases the king gave merely the formulary of action, that is, the ruling in law, and then sent the case before a private judge or arbitrator (judex privatus, arbiter), thus illustrating (although not, perhaps, on the scale recognised during the Republic) the fundamental division of judicial procedure into jus and judicium. This division of jurisdiction is probably primitive and not, as has sometimes been thought, a modification introduced by the later monarchy.[263] Even in Republican times the judex was chosen by consent of the parties.[264] He was an arbitrator between the litigants agreed to by a mutual compact,[265] and an outcome of the notion of self-help so prominent in early Greek and Roman law. But one who knows the forms of action has to stand by and see that the words of these forms are correctly repeated. This depositary of jus is the king or one of his pontiffs. Hence eventually the public official comes to assist at the appointment of the judge. From this it is but a slight step to give the formula of action which settles the law of the case, and to leave it to the judex to decide the question of fact.
§ 6. The Servian Constitution
At some period before the close of the monarchy the absurdity of the existing constitutional arrangements began to be felt. In matters of private law there was not a single important difference between a free Plebeian and a Patrician; and large numbers of that portion of the Plebs which had sprung from clientship were virtually in a condition of independence. Although their tenure of the soil might be precarious, their right of acting for themselves in the law courts questionable, it must have been practically impossible to avoid the appearance of full ownership where the lord had not asserted his right for generations, or to prohibit the personal enforcement of claims where the original patronage had been long forgotten or had lapsed through the extinction of the patrician family on which the original client had been dependent. It was, in fact, impossible to say where the class of free Plebeians ended and that of protected Plebeians began. It was better, for the purposes contemplated by the impending reform which bears the name of Servius Tullius, that they should be regarded as on an equality, and that both classes should make up a single order. The essence of this reform is, in fact, the recognition of equality of rights in landed property. Ownership of Roman land ex jure quiritium was guaranteed to the whole plebeian order—probably even to those dependants and emancipated slaves whose clientship, and therefore whose precarious tenure of the soil, was patent;[266] and with respect to the rights of commercium the order was put on a level with the Patriciate.
So far the object of the reform seems to be to confer privileges on certain classes of the Plebeians. Its real meaning was wholly different. The intention of the reformer—one which explains the readiness with which the change seems to have been accepted by the Patricians[267]—was to impose burdens on the whole plebeian community. A recognition of the rights of property was a necessary preliminary to the imposition of taxation and of the full quota of military service. The patres, who welcomed this distribution of burdens, did not foresee that from these obligations would flow a fresh series of rights which would impair their monopoly of political power.
The Plebeians were being recognised for the first time as, in a sense, members of the state. The first problem was the choice of a medium through which they should be incorporated in it; for simple membership of a state which was not based on membership of some lower unit was inconceivable to the Graeco-Roman world. Many of the Plebeians had no clans; they could not, therefore, be made members of the three primitive tribes,[268] and when the change was first mooted, it was, probably for the same reason, thought impossible to make them members of the curiae.[269] New tribes must be invented which should include the whole community. The chief burden of taxation, now imposed equally on all classes, was to lie on land. What more natural than that the tribes should be territorial divisions, so defined as to include all the territory held in ownership by the Roman people? It is established that the tribes, which are specially described as local,[270] contained only that land which was subject to quiritarian ownership,[271] and from this fact the deduction has been drawn that all land subject to quiritarian ownership was included in the tribes. As the Servian tribes were believed only to have comprised the city itself, as enclosed by the Servian walls,[272] this view leads to the startling conclusion that no land was held in private ownership outside the city, as its limits were fixed by Servius—that the land outside, so far as it was not ager publicus, was held by some larger corporation such as the gens.[273] But such a conclusion is most improbable; it was the evolution of private ownership which had created the rich Plebeian, who had often no clan and could not hold in common with others, and such a holder was the least likely man in the world to have land in or near the city, even as its limits were fixed by Servius.
Consequently if, as seems to have been the case, the tribes did include all landowners, they must have extended far beyond the bounds of the city. Our authorities knew them at a time when their names indeed survived, but when they had become strictly divisions of the city, by the complete separation of the country from the urban tribes. If we believe in the urban character of the four original tribus, we must accept the clearly expressed but generally discredited belief preserved by Dionysius that besides these four tribes, which comprehended only the city, Servius established twenty-six others which took in the country districts.[274]
The view that the four tribes[275] comprised the country districts is preferable, and is not incompatible with the fact that they certainly designated parts of the city, nor even with the possibility of their having been engrafted in some way on the older divisions of the Ramnes, Tities, and Luceres.[276] Local creations of an artificial character, independent of juxtaposition, are not unknown in early legislations; they are found in the almost contemporary work of Cleisthenes of Athens. But even this hypothesis is unnecessary; each tribe may have stretched continuously with fairly definite boundaries beyond the city walls. The country portions of these tribes were for a moment wholly lost by the disastrous wars which followed the expulsion of the kings, and when the ager Romanus was again regained, a new organisation was adopted The territory outside the walls was parcelled out into country tribes,[277] and these grew in number as Rome’s conquests spread. The four Servian tribe-names were kept as designations only of regions within the city.
Although the tribes were divisions of the land, and individuals were registered in that tribe in which their land-allotment lay,[278] there is no good reason for accepting the current belief that the landless citizen was not enrolled in a tribe.[279] It has generally been assumed that the only object of the Servian tribes was to furnish a system of registration for taxation and the military levy. If this was the case, and we believe that these burdens were imposed only on landed property, it follows as a consequence that only holders of land were tribules. But there is no evidence that their scope was so limited. They appear to be divisions of the populus Romanus, and the disinherited or ruined Patrician who has lost his land is still a member of that populus. The tribe to which a landless man belonged would depend upon his domicile; it is a man’s local position in a tribe, not the land he holds in it, which is given as a criterion of his membership and of the political rights which it subsequently conferred.[280]
The system of registration, which was the central idea of the Servian reforms, was essentially military. It recognised only those persons who were qualified for service by wealth, regarded them as forming an army (exercitus), and divided this army into its two branches of infantry and cavalry. This military organisation recognised one primary and two secondary principles as the basis of classification; the first was wealth, the second age, the third took the form of a subdivision for strategic purposes, the military unit employed being the “hundred” (centuria).
For the moment we may overlook the cavalry and fix our attention on the bulk of the citizens who form the infantry. These are split up into five divisions, which were at a later period called classes. The basis of division was wealth, and the crucial question is “what kind of wealth?” It is almost certain that it could not have been wealth reckoned in money. Although Rome was a seaport and a trading state, it is doubtful whether even the old libral as, which was used as a medium of exchange by weight, was in current use at this time;[281] and therefore the detailed accounts given of the money valuations by which the classes were fixed must refer to a later period in the history of this organisation. The alternative that has been suggested is land.[282] There would be no difficulty in accepting this substitute, paralleled as it is by the similar organisation of Solon, were it not that the hypothesis ignores sources of wealth which the earliest Roman law seems to have classed with land, i.e. slaves and domesticated beasts. These res mancipi are as much the object of quiritarian ownership as land, and they may exist without it. A man might own no land and yet be rich in cattle and sheep which he drove on the ager publicus, or in slaves engaged in productive handicrafts,[283] and the state was interested in all that was duly owned and was properly the subject of assessment (res censui censendo);[284] the Servian census must have been based on res mancipi, and to a certain degree it was a census based on currency, for cattle (pecus) were recognised as a medium of exchange (pecunia).
On the basis of such a census five classes were distinguished; the census of each, in terms of the later assessment, which was probably expressed in asses sextantarii, being respectively 100,000, 75,000, 50,000, 25,000, 11,000 asses.
Each of these divisions was subdivided into two with reference to age, the juniores (from eighteen to forty-five) being the effective fighting force, the seniores (forty-five to sixty) the home defence. The final division is into the military unit, the century (centuria), consisting nominally of a hundred men. This was the minimum strength of the lowest unit, but the census list did not represent the effective fighting force of the legion organised for battle, but the numbers qualified for service; consequently the centuries of a particular class were raised to the quota required to include all the members of that class. The numerical proportion of the centuries of the different classes to one another is very striking. The centuries of the first class (eighty in number) are almost equal to those of the four other classes put together (collectively ninety in number). If this table exhibits the real proportion of social classes to one another, it would show a wonderfully equal distribution of land in the state, one so equal as to cause most of the landholders to be placed in the same class, for the list would mainly represent holders of land (the other res mancipi not being usually divorced from its possession). But the proportions of the classes may only show that the centuries of richer citizens were still regarded as forming the more permanent force, the other divisions, not much more numerous though drawn from a larger population, being merely supplementary. We know that members of the first class were more perfectly equipped,[285] and the fact of their being the main strength of the army would be proved if it were true that this class alone was originally classis (“the line”) and that all the others were infra classem.[286]
As will be seen from the accompanying table of the census, the mass of citizens whose property fell below that of the lowest class was not wholly unprovided for. They were organised, according to Livy, into six, according to Dionysius into five, centuries. Some of these were composed of professional persons, whose services were indispensable to an army, and who were, perhaps, members of the trade guilds (collegia) which are said to have existed in the regal period.[287] Such were the carpenters (fabri) who formed two centuries, and the horn-blowers and trumpeters (cornicines and tibicines) who formed one each.
THE SERVIAN CLASSIFICATION
The Cavalry
18 centuries, with no fixed property qualification.
The Infantry
Seniores, 40 cent. } 80
Juniores, 40 cent. }
2nd Classis— 75,000 asses (Liv. and Dionys.).
Seniores, 10 cent. } 20
Juniores, 10 cent. }
3rd Classis— 50,000 asses (Liv. and Dionys.).
Seniores, 10 cent. } 20
Juniores, 10 cent. }
4th Classis— 25,000 asses.
Seniores, 10 cent. } 20
Juniores, 10 cent. }
5th Classis— 11,000 asses (Liv.), 12,500 (Dionys. 12½ minae).
Seniores, 15 cent. } 30
Juniores, 15 cent. }
Fabri—2 cent. (voting with 1st class, Liv.; with 2nd class, Dionys.) 6 cent. (Liv.). 5 cent. (Dionys.).
Accensi, cornicines, tibicines, 3 cent. (Liv.), 2 cent. (Dionys.) (voting with 4th class, Dionys.).
Capite censi, 1 cent.
Total, 193 centuries (Dionys.), 194 (Liv.).
THE CENSUS
As interpreted by Mommsen,[290] who holds that the figures are given in asses sextantarii [i.e. asses of two ounces weight—⅙ of the libral as (the later sestertius)]. As interpreted by Belot,[291] who holds that the figures are given in asses librales (later sestertii).
The older as (¼ denarius) Later (circa 269 B.C.) equivalent to ⅒ denarius
1st Classis 40,000 100,000 100,000
2nd ” 30,000 75,000 75,000
3rd ” 20,000 50,000 50,000
4th ” 10,000 25,000 25,000
5th ” 4,400 11,000 12,500
Another century was formed by the accensi or velati. These were men with no heavy armour, who might be enrolled as occasion required (adscripticii), or who marched to battle as light-armed troops ready at any moment to take the armour and places of the fallen legionaries.[292] No property qualification was required for these three groups, the reason being that their place in the army did not demand it. But to these Livy and Dionysius add another unpropertied class, the century of proletarii, which included the whole mass of the people not registered in the classes.[293] If, however, we believe in the originally military character of the organisation, there seems no place for this class which is not already filled by the accensi and velati. At a later period the accensi became a more definite body, acting as assistants to the magistrates and forming a corporation with certain immunities,[294] and at this period the proletarii may have been recognised as the class liable to taxation, which fell below the minimum census. But they probably do not belong to the original Servian organisation.
The citizens included in the census list were collectively described as classici, and were spoken of as locupletes and assidui, the latter word probably meaning people “settled on land,” “landholders,” as most of those originally enrolled in the classes were.[295] The others were the children-begetting citizens (proletarii cives). The use of the census for purposes of taxation gave other names to this class. In contrast to the assidui, who were registered on their property, they were called capite censi as being registered on their caput or mere headship of a family; and further, when the incidence of taxation extended below the minimum census, they were spoken of as aerarii, because their participation in the burdens of the state was shown only by the payment of taxes (aes). The word aerarii seems always to have denoted those outside the census list.[296]
The cavalry was an adaptation of the old patrician corps of equites[297] to the new conditions. The six original centuries were preserved and consisted as before of Patricians;[298] they still bore the names of the ancient tribes, and were called respectively Titienses, Ramnes, Luceres, priores and posteriores.[299] They continued to be known as the sex centuriae, or (after the centuries acquired voting power) the sex suffragia.[300]
To these were added twelve new centuries (centuriae equitum), composed, like the classes, of Patricians and Plebeians. But, unlike the classes, they were not enrolled on a property qualification. This is explained by the fact that they are not a list of men qualified for service but actually in service, a standing corps selected by the king and whose expenses were largely defrayed by the state. In later times, each knight was on his entrance into the corps given the means wherewith to furnish himself with a pair of horses[301] (aes equestre), and also a regular sum of money for their support (aes hordearium), the latter money being defrayed by unmarried women and orphans, who were possessed of property but could not by the nature of the case be rated in the census.[302]
Each of these centuries formed a troop of one hundred men under a centurio,[303] and these eighteen centuries of Roman knights with public horses (equites Romani equo publico) continued unaltered in numbers and (with the exception that the sex suffragia ceased to be chosen from the Patricians) in character to the end of the Republic. Although no definite census was required for the class, it was probably chosen from the first from the richest and most distinguished citizens; for its permanent existence implies leisure. The class was not divided by age into seniores and juniores, for an obvious military reason. They were all juniores, and probably young men, whose release from the centuries was granted as soon as age had impaired their efficiency for service.
This centuriate organisation seems to have little or no connexion with the four Servian tribes,[304] beyond the accidental one that the basis of qualification was mainly land, and that all land which was private property was registered in the tribes. Its primary meaning was the assembly and registration of those liable for military service. It acquired a secondary meaning when (at what period we do not know but perhaps from its first organisation) it was used as a scheme for the collection of taxes on the registered wealth of the citizens in the classes. The act of registration (census) was a solemn religious function conducted by the king. He numbered his fighting force, saw that each warrior was in his due rank, excluded from these ranks men who were stained with sin, and then concluded the examination with a ceremony of purification (lustrum). It is only with reference to the collection of taxes imposed at this levy that the tribe would be of importance. The century was a military unit, dissolved as soon as the army was disbanded; the tribe was permanent, hence the war-tax (tributum) was perhaps collected from the first by the presidents of the tribes.[305]
A transference of political rights from the patrician body to this new assembly was so far from being the motive of the change that it was probably never contemplated. But such a transference was from the nature of things inevitable. Apart from the general fact that a citizen army must gain the preponderance in political power, there were certain public acts which were inevitably performed from the first by the assembly of the centuries, or were very soon found to be more rapidly, easily, and appropriately performed by that assembly than by the comitia of the curiae.
Firstly, it may have been the custom for the oath of allegiance to the king, first expressed in the lex curiata,[306] to have been renewed at every taking of the census. This expression of allegiance, asked for by the magistrate, was now a lex centuriata.[307]
Secondly, most of the popular utterances or leges of early Rome must have referred to military matters, and convenience, if not a sense of consistency, must soon have dictated that they should be pronounced by the army. The choice of officers rested with the king; but if the appointment of the higher delegates required the ratification of the people,[308] this must soon have been given by the centuries. The regal jurisdiction which the people challenge by the provocatio is essentially military jurisdiction;[309] and consequently the exercise of this jurisdiction, when the king allowed the appeal, must soon have been felt to belong to the army. It was to this assembly that the announcement of a proposal to declare war[310] would most appropriately be made; it was above all by this assembly, which represented the taxpayers, that the war-tax (tributum) would most appropriately be assessed.
We cannot trace the successive steps in the acquisition of power by the centuries or its growth from an army into a comitia. They must have been the chief political changes which filled the closing years of the monarchy and the early days of the Republic; for even the abolition of monarchy itself, revolutionary as it was, was less of an alteration in the structure of the constitution than this transference of the attributes of sovereignty from one assembly to another, from a single to a mixed order. The comitia curiata was not suddenly stripped of its powers; but the organising genius of a single supreme magistrate had prepared the way for a change, which was a prototype of the gradual insensible revolutions through which Rome was to pass.
The change which closes the history of this period, although not so radical, was far more sudden and violent. The monarchy itself was overthrown. History has tried to invest this revolution with all the legal grounds and legal forms which it could summon to its assistance. Servius had had it in his mind to complete his democratic work by laying down the full imperium;[311] and Tarquin the Proud, the last of the great Etruscan line, had broken through the constitutional usages of the monarchy[312] and had ruled without challenging the allegiance of the people.[313] That there was some fearful abuse of the kingly power, typified in the associations that gathered round the words rex and regnum and in the oath which made any one who aspired to monarchy an outlaw,[314] we may without hesitation allow; for Rome, as shown by the power she continued to entrust to her magistrates, had not outgrown the idea of royalty. But there was no constitutional mode of deposing a king. The auspices had returned to the fathers in unhallowed fashion, and the war waged by Tarquin and Etruria is a war for the maintenance of the principle of divine right. But yet Rome held that the divinity of the magistracy still remained; the auspices again left the fathers’ hands and were conferred on two citizens chosen from the patres.[315]