Chapter I · THE EARLIEST CONSTITUTION OF ROME

§ 1. The Growth of the City

In the developed political life of Italy there is a survival of a form of association known as the pagus[1]—an ethnic or, at least, a tribal unit, which is itself composed of a number of hamlets (vici, οἶκοι). This district with its group of villages perhaps represents the most primitive organisation of the Italian peoples engaged in agriculture and pastoral pursuits.[2] The pagus seems to resemble the tribe (tribus) of the fully formed city-state,[3] while the vicus may often have represented, or professed to represent, a simple clan (gens). In the centre of the district lay a stronghold (arx, castellum), in which the people took shelter in time of danger.

There are, indeed, traditions of isolated units still smaller than the pagus. The clan is sometimes pictured as wandering alone with its crowd of dependants.[4] But migration itself would have tended to destroy the self-existence of the family; the horde is wider than the clan, and the germ of the later civitas must have appeared first, perhaps, in the pagus, later in the populus which united many pagi. The union may have been slight at first, and may often have been based merely on the possession of some common shrine. Much of the civil and criminal law was administered within the family in the form of a domestic jurisdiction which survived in historical Rome; but a common market would involve disputes, and these would have to be settled by an appeal to an arbitrator (arbiter) even before the idea of a magistracy was evolved. Lastly come military necessities whether of defence or aggression. It is these that create a power which more than any other makes the state. The mild kingship of the high-priest of the common cult gives way to the organised rule of an imperium, and the king, praetor or dictator, is the result, the coherence of infant organisation being dependent on the strength of the executive power.

In the earliest city of Rome, to which we are carried back by tradition or archaeological research, this development has already been attained. The square city (Roma quadrata) was the enclosure of the Palatine, the “grazing-land” of the early Roman shepherd;[5] the bounds of the oldest pomerium were known in later times to have been the limits of this site,[6] and traces of the tufa ring-wall may yet be seen. From this centre the city spread in irregular concentric circles.[7] Traces of ritual have preserved a memory of a city of the seven hills (Septimontium)—not those of the Servian Rome, but five smaller elevations, three (Palatium, Cermalus, Velia) on the older city of the Palatine, and two (Oppius, Cispius) on the newly-included Esquiline; while two valleys on the latter (Fagutal and Subura) also bear the name montes,[8] and are, with the sites that really deserve the name, inhabited by the montani, who are distinguished from the pagani, the inhabitants of the lower-lying land beneath. It is not impossible that these seven “hills” were once the sites of independent or loosely connected villages (vici, or perhaps even pagi) which were gradually amalgamated under a central power, and, as the walls of the state could never have been coterminous with its territory, each successive enclosure must show the incorporation, voluntary or enforced, of a far greater number of smaller political units than those which the fortifications directly absorbed. Modern inquirers, following up a further hint supplied by the survival of a ritual, have held that there was another advance before the epoch of the Servian Rome was reached, and that what is known as “the Rome of the four regions” survives in the sites associated with the chapels of the Argei,[9] and is preserved in the administrative subdivisions of the city to the close of the Republic.[10] To form these regions the Caelian, the Quirinal, and the Viminal hills were added, while the Capitol with its two peaks now became, not indeed a part of the town, but, as the “head” of the state, its chief stronghold and the site of its greatest temples. The final step in the city’s growth was the enclosure associated with the name of Servius Tullius, a fortification extending beyond the limits of the true pomerium, which added to the city the whole of the Esquiline to the north-east, the Aventine to the south-west, stretched to the west to the bank of the Tiber where the Pons Sublicius crosses the river, and formed the enceinte of Republican Rome.

It is possible that an amalgamation of slightly different ethnic elements may be associated with this extension of the city. That a difference of race lay at the basis of the division of the primitive people into their three original tribes was believed in the ancient, and has often been held in the modern world. The Tities (or Titienses) were supposed to be Sabine,[11] the Ramnes (or Ramnenses) Roman; the Luceres were held by some to be also Latin, by others to be Etruscan. There is, however, a rival tradition of the artificial creation of these tribes by the first Roman king,[12] and, when we remember the arbitrary application in the Greek world of tribe-names that had once been significant,[13] we may hold it possible that the great συνοικισμός typified by the name of Romulus was not accompanied by any large alien intermixture with the primitive Latin population. The existence of Sabine gods like Sancus, or Sabine ritual as typified in Numa Pompilius, is no more evidence of Sabine intermixture than the early reception of Hellenic deities is of Greek;[14] and though it is possible that a Sabine tribe once settled on the Quirinal, and it is almost certain that at the close of the monarchical period an Etruscan dynasty ruled in Rome, yet the language, religion, and political structure of the early state were of a genuinely Latin type. There was, indeed, contact with peoples more developed in material civilisation or more gifted in their spiritual life, and to this contact the debt of Rome was great. Rome adopts the Chalcidian alphabet; she receives early Greek divinities such as Hercules, Castor, and Pollux; she models her statue of Diana on the Aventine on that of Artemis at Massilia; she imitates the Greek tactical organisation in her early phalanx. But it is very doubtful whether the obligation extended to the reception of the political ideas of Hellas. Parallels between Roman and Hellenic organisation may be observed in certain institutions such as the equites and the census; but these are military rather than purely political, and in all the fundamental conceptions of public law—the rights of the citizens individually and collectively, the power of the magistrate and the divine character even of secular rule—Rome differed widely from the developed Greek communities with which she was brought into contact, and seems in her political evolution to have worked out her own salvation. The more developed civilisation of Etruria doubtless filled up certain gaps in her political and religious organisation both by contact and by rule. The strength of the religious guilds (collegia) of Rome may be due in part to an imitation of the Etruscan hierarchy; the refinements of the science of augury may also be Tuscan; and tradition, as we shall see, derives from the same source the insignia of the Roman king.

§ 2. The Elements of the Population—Patricians, Plebeians, Clients

The free population of Rome as a developed city-state was composed of the two elements of Patricians and Plebeians. The ultimate source of this distinction, which is undoubtedly anterior to the foundation of the city, can only be a matter of conjecture; but the origin of the Patriciate may probably be explained as the result partly of earlier settlement, partly of superior military prowess. The warriors within the pale receive the new settlers, but only on certain conditions; these conditions are perpetuated and become a permanent badge of inferiority. The happiest guess of the many made by Roman antiquarians as to the origin of the Patricians was that they were originally the “free-born” men (ingenui), the men who could point to fathers (patres) and in their turn become full heads of families[15]—the men in short who, at a time when the family with its juristic head, and not the mere individual, was the true unit of life, were the only full citizens of Rome. Such men alone could be partners in the true ownership of property, or sue and be sued in their own right,[16] and such an exclusive right to a full personality in private law they claimed in virtue of their public services or privileges—the duty of taking the field on horseback or in heavy armour, the right of uplifting their voices in the assembly when they acclaimed a king or ratified a law.

The whole free community, other than the patres or Patricians, is regarded as the “complement” of the latter, “the multitude” (plebs, plebeii) which, with the fully privileged class, makes up the state.[17] It is possible that, in a very primitive stage of Roman history, these Plebeians may all have been in the half-servile condition of clientship; but, even when the earliest records of Rome are revealed to us, this has ceased to be the case. Not only has the son of the original client evolved a freedom of his own, but a man may become a plebeian member of Rome without subjecting himself to the degradation of clientela. No less than five ways are described or can be imagined in which the non-citizen could become a citizen, and at least one of these reveals the possibility of the perfectly free Plebeian. In the old life of the pagus and the gens, the weaker sought protection of the stronger by a willing vassalage, which ripened, when the state was formed, into the Plebeiate which had its origin in clientship. A similar position was ultimately gained by the descendant of the manumitted slave. The stranger (hostis) from a city which had no treaty relations with Rome, or no relations which guaranteed a mutual interchange of citizenship, must, if he wandered to this new home, also make application to a patron and become his client. It is less certain what was the fate of the inhabitants of a conquered city who were violently deported to Rome. The annalists, indeed, represent such men as being received into the citizen body, and as becoming members of the tribe and the curia;[18] but it is probable that in the prehistoric period they became clients, immediately of the king to whom they had made their subjection, ultimately perhaps of patrician houses to which he chose to attach them as dependants.[19] In all these cases clientship may have been the original lot of the Plebeian; but this could hardly have been the fate of the immigrant who moved to Rome from a city which already possessed the jus commercii with that state, and by the exercise of the right of voluntary exile from his native land (jus exulandi) claimed the Roman civitas. The existence of such relations between Rome and cities of the Latin league is attested for a very early period, and they may even have been extended to cities outside the league.[20] As the jus commercii implies the right of suing and being sued in one’s own person before Roman courts, there seems no reason why such an immigrant should make application to a Roman patron;[21] but, if he did not, he was in the chief aspects of private law a perfectly free man, and illustrated a status to which the quondam-client must from an early period have tended to approximate. Where the right of intermarriage (jus conubii), as well as the right of trade, was guaranteed in a treaty between Rome and some other town, it is questionable whether this gift ever implied the possibility of matrimonial union with members of the Patriciate. It is at least certain that, at the time of the Twelve Tables (451 B.C.), and therefore probably from a very early period, a disability common to all the Plebeians was that they might not intermarry with members of patrician clans. Yet, although there was this great gulf parting the two orders, it was possible for either class to be transferred to the status of the other. We shall see that tradition represents a vote of the Patricians in their assembly as a means sufficient to recruit their order by the addition of a new family; while, after the Plebs had evolved an assembly of its own, a transitio ad plebem might be effected by an act of that body.[22] Adoption from a patrician into a plebeian family produced the same result.

That the clientship of which we have spoken was not peculiar to Rome, but was an old established Italian institution, is a truth reflected in the legend of the gens Claudia which moved from Regillum to Rome with a vast multitude of dependants.[23] It is separated by but a thin line from slavery. While the latter was based on conquest in war, the former was probably the result of voluntarily-sought protection in the turmoil of a migratory life, or perhaps at times the consequence of the suzerainty of a powerful village being extended over its weaker neighbours. In the developed state the principal object of this relation is legal representation by the patronus, for the client possesses no legal personality of his own. For the condition of the client we can but appeal to that of the slave and the son of the family. Such property as he possessed may have been merely a peculium, the small accumulation of cattle and means of husbandry which his master allowed him to form; had the client wronged a citizen, we may assume that his body might be surrendered in reparation of the damage (noxae deditio); the origin of Roman occupation of land on sufferance (precario) may perhaps be traced to the permission by the patron to till a little plot of land which might be resumed at will;[24] in default of direct heirs (sui heredes) such personal belongings as the client possessed may have fallen to the members of the protecting clan (gentiles), for it was to the clan rather than to the family that he was attached.

The description which we possess of the mutual obligations of patrons and clients,[25] although it contains many primitive elements, obviously refers to a time when the client was allowed to possess property of his own and was often a man of considerable wealth, but when, in spite of this power, he does not seem to have appeared in person in the public courts. It was the duty of the Patricians to interpret the law to their clients, to accept their defence in suits, and to represent them when they were plaintiffs.[26] The client, on the other hand, was bound to help to dower the daughter of the patron if the latter was poor; to pay the ransom if he or his son were captured by enemies; and, if his lord was worsted in a private action or incurred a public fine, to defray the expense from his own property. If any of these duties were violated by the client, he was held guilty of treason (perduellio), and as the secular arm suspended him from the unlucky tree, so the religious power devoted to the infernal gods the patron who had woven a net of fraud for his dependant.[27] Even after the effective infliction of religious sanctions had disappeared, the duty to the client ranked only second to that which was owed by a guardian to his ward.[28] The earliest clientship was strictly hereditary; but the bond must have become weaker with successive generations, after the evolution of plebeian rights, and at a time when clientes themselves possessed votes in the comitia curiata.[29] Nay, the Plebeian at this period may himself be a patron, and his attainment of full citizenship in private law must have been held to qualify him for this duty of protection. Yet the client body still continues to be recruited by new members; for the antique form of applicatio still exists, and the manumitted slave owes duties to his patron. We know too that in the fourth and third centuries the patronal rights over the freedman extended to the second generation.[30]

A faint trace of hereditary clientship, based on a purely moral sanction, and accompanied perhaps by the performance of some of the duties of the old relationship, still exists in the second century. The family of Marius, we are told, had been clients of the plebeian Herennii, and some of the rights of the relationship were held to extend to him. But we are also told that at this period a principle was recognised that this bond was for ever broken by the client’s attainment of curule office,[31] that is, by the ennoblement of him and his family.

§ 3. Roman Family Organisation—The Gens, the Familia, the Bondsman and the Slave—The Disposition of Property—The Conception of “Caput”

The clan (gens) was an aggregate of individuals supposed to be sprung from a common source, a social union, with common rights in private law, which had as its theoretical basis the notion of descent from a single ancestor. According to the juristic theory of the clan, all its individual members would, if their descent could be traced through every degree, have sprung from two individuals who were within the power of this ultimate ancestor, a sign of this original potestas being the common gentile name.[32]

The members of a clan are to one another either agnati or gentiles. In many cases the difference of nomenclature was based merely on the degree of certainty in the relationship. They were agnati when the common descent could be traced through all its stages; they were gentiles when the common descent was only an imagined fact, based on the possession of a common name. As a rule agnati are also gentiles; but there might be groups of agnates who could never be gentiles—groups, that is, of proved relationship through the male line, who could not, for reasons which we shall soon specify, form a gens.

If we believe that the Roman Patriciate represented those who alone possessed the legal status of heads of families (patres)[33]—since, the familia being the unit of the clan, the rights of a clan-member (gentilis) imply the position of a paterfamilias—it follows that the Roman gentes were, as they are represented by tradition, originally exclusively patrician, and that the terms gentilis, gentilitas implied a perfect equality of status among the only true members of the state.

The words became restricted to a certain section of the community in consequence of the evolution of plebeian rights, i.e. in consequence of the Plebeians becoming in strict law patres familias. The logical consequence of this should have been, where groups of such families bore a common name and were believed to have a common descent, that these groups should form gentes. But history is illogical, and this conclusion was not reached.

No such group could possibly form a gens of its own, if it could be regarded as having been originally in dependence on a patrician clan. Although in course of time legally independent and freed from all trammels of clientship, it was yet disqualified from clan-brotherhood by this original connexion; it remained an offshoot (stirps), a mere dependent branch, and could never be a self-existent gens. This disqualification is exhibited in the definition of gentilitas given by the jurist Scaevola (consul 133 B.C.), which gives as two of its conditions free birth in the second degree, and the absence of servile blood in one’s ultimate ancestry.[34] This definition excludes from membership of a gens all those Plebeians who had sprung originally from emancipated slaves. No one who could be proved to have the taint of servile blood could ever be a gentilis. But there is every reason to believe that servitus was interpreted in a further sense, that clientship was regarded as a quasi-servile position, and debarred a group of families, whose ancestor could be proved to be a client, for ever from being a clan.

As a rule it would have been difficult, if not impossible, to furnish this proof; but there was one legal sign of it—the bearing by a plebeian stirps of the same name as a patrician clan. The presumption of the law, in the case of the coexistence of a plebeian group of families with a patrician group of the same name, was apparently that the former had once been clients of the latter, and could never, therefore, form a gens of their own.[35]

But, if there were plebeian families that had no origin in clientship, there was nothing to prevent these from being gentes. It is true that Patricians sometimes made the claim that all the plebeian families had originated from clientship.[36] But this is, as we saw,[37] probably not true of the origin of many of the plebeian families, and there is abundant evidence that the theory was not recognised by law. We know, for instance, that gentile inheritances were shared by the plebeian Minucii, and gentile sepulchres by the plebeian Popilii.[38]

The foregoing description shows that the gens rests on a natural basis, that it professedly represents the widest limits of blood-relationship; hence it would seem to follow that it could not be artificially created or its members redistributed; that the numbers of the clans could not be regulated numerically, except conceivably by the addition to the existing number of a precise number of added clans—a most improbable procedure; and that, as being a natural and not an artificial creation, it was a union which was not likely to be of primary importance politically, and the rights of whose members were in all probability those of private rather than of public law. These expectations are verified, but the attempts to point out certain purely political characteristics of these associations deserve examination.[39]

(i.) It has been held that the clans were the unit of voting in the original popular assembly at Rome, the comitia curiata.[40] But the passage on which this conclusion is based only implies that, originally, membership of this comitia depended on possession of a gens; eventually, at a time when the curia included Plebeians, on possession of a familia, and therefore presumably of a stirps or genus.

(ii.) A distinction is presented by ancient authorities between the gentes majores and minores—a distinction within the patrician gentes that survived into the Republic. Of the gentes minores we know but one name, that of the patrician Papirii;[41] a list of some of the gentes majores has been reconstructed with some plausibility from those clans which furnished principes senatus; they are the Aemilii, Claudii, Cornelii, Fabii, Manlii, and Valerii.[42] Tradition is inclined to represent this distinction as having originated politically,[43] but it is a tradition working on the impossible hypothesis that the Patriciate derived its origin from membership of the Senate. This political distinction doubtless existed within the Senate; but it was probably derived merely from the respective antiquity, and therefore dignity, of the gentes from which its members were drawn. And this association with the Senate leads us naturally to the third question connected with the political character of the gentes, i.e. their relation to the primitive council of the state. The theory of an ultimate connexion between the two originates with the correspondence of the number of the gentes and of the Senate. Both are given by tradition as 300. The Roman community is said to have originated with the amalgamation of three domains (tribus) into one.[44] The rise of the Senate from 100, its original number as constituted by Romulus, to 300 as its final number, is accounted for by the gradual amalgamation of these three tribes with their 100 gentes each.[45] A parallel to the original centumviral constitution of the Senate is found in the centumviri of the Italian towns, and is supposed to be derived from the same invariable division of a tribus into 100 gentes.[46]

The chief objections to this view are the symmetrical number into which it divides the gentes, and the fact that the Senate is, according to the best tradition, a body of nominees selected by the chief magistrate. But yet there is an element of truth in the theory. The Senate did rise from 100 to 300 in consequence of the incorporation of fresh elements into the community, and therefore in consequence of an increase of the gentes. The kings and early consuls would doubtless, in the exercise of their powers of selection, wish to see each of the patrician clans represented in their council. Hence the addition of new clans would add new members to that body, and hence the inferior place occupied in the Senate by the gentes minores, the younger branch of the Patriciate.

Although the clan itself was inexpansive, the number of the clans, even in the old patrician community, was not. It was possible for new gentes to be added to the community, and even for old gentes to quit it. Tradition speaks of the reception of six clans that had once belonged to the parent state of Alba—the Cloelii, Curiatii, Geganii, Julii, Quinctilii (or Quinctii), and Servilii;[47] and Sabine races as well, such as the Valerii,[48] are also said to have been admitted. The reception of new gentes was effected by the Patricians and, as we should expect, by the assembly which represents the whole patrician body, the comitia curiata, under the presidency of the king. They were coopted by their peers,[49] and it is improbable that the patrician order could have been recruited by the act of the king alone.[50] He might conceivably have chosen Plebeians as members of his advising body, the Senate, as the first consuls are said to have done,[51] although such a selection is extremely improbable; but even this act would not have raised such Plebeians to the Patriciate. The admission of new gentes implies that foreigners, or even a portion of the plebeian body, might be coopted into the Patriciate; in the former case it might be the reception, in the latter the creation, of a gens. This possibility of recruiting the patrician order—whether by the creation or reception of gentes—ceased during the Republic, because the assembly of the Curies came eventually to admit Plebeians, and there was no political assembly composed exclusively of members who fulfilled all the conditions of being gentiles. The only instance of the expulsion of a gens preserved by legend is that of the Tarquinii; and the decree that this whole clan had forfeited its right to be a member of the Roman state is said to have been passed by the Populus.[52]

The account of gentes being received into the Roman community is accompanied by a tradition of their keeping together in their new settlement. Thus the Claudii, on the reception of the civitas, are said to have received a special tract of territory across the Anio for themselves and their clients.[53] Such a tradition at once suggests a close connexion between the gens and the soil, which there is no reason to doubt. But the further questions have been raised, whether the gens as a whole was the owner of the land on which it settled, and whether this was the form of common possession recognised in early Rome. It must be admitted that tradition knows nothing of such a tenure. Dionysius represents the territory given to the Claudii as destined to be divided up amongst the various familiae of the gens;[54] while in other accounts of land-assignments we hear of such being made to the curia (φράτρα)[55] or to individuals (viritim),[56] but never to the clan. Yet a plausible theory of common possession has been based on the survivals both of legal terms and of clan rights.[57] Amongst the terms describing early territorial possession we have, apart from ager publicus, the heredium and the ager privatus. The private possession of the heredium is attributed to Romulus,[58] and is thus regarded as a modification of some form of common tenure; and the heredium consisted of only two jugera,[59] an amount obviously insufficient for the maintenance of a family. Hence there must have been ager privatus as well, owned by some larger unit, and this unit would naturally have been the gens. It has also been thought that the terms descriptive of individual ownership—manus, mancipium—referred originally to movables,[60] as though immovables belonged to a common stock. Lastly, we find connected with the clan the survival of a corporate right to property and collective duties connected with it. According to the rules of regular intestate succession, in default of the suus heres, property lapses to the proximus agnatus and then to the gentiles;[61] and it was in connexion with this right, which lasted down to the end of the Republic,[62] that the definition of a gentilis was of such legal importance.[63] This inheritance is by the gentiles as a whole, for there is no proximus gentilis, and in historic times it must have been an inheritance by individuals, the property being divided amongst those who could prove their claim; but it may be the relic of an earlier inheritance by the gens as a corporation.

But the gentiles have rights in a corporate capacity as well. By the Twelve Tables they have the guardianship of the insane[64] and a reversionary right of guardianship over women and children.[65] Guardianship (tutela) must have given them all the rights of a person in Roman law, to exercise which they must have had a personal representative. But this devolution itself shows the gens acting as a corporation.

Of corporate action in their own interests, or with a view to the interests of the state, there is little evidence, although there are traces of common activity for the purpose of keeping up the dignity of the family. The patrician Claudii repudiate by common agreement the praenomen “Lucius,” because two of its bearers had been respectively convicted of highway robbery and murder,[66] and the patrician Manlii renounce the praenomen “Marcus” in consequence of a crime committed by a clansman of that name;[67] but such an agreement could hardly in historical times have had other support than the will of individual members to observe it. Perhaps the closest of the later ties of the gens were its common worship and sacrifices. They never, as in Greece, rose to the rank of great public worships, but excessive care was taken by the state to maintain them; chiefly from the view that, if the worship of a race died out, the community would lose the favour of the divinity to which it had belonged. Hence the close connexion of gentile sacra with property and inheritance.[68] Property, in the last resort, passed to the gentiles; and the sacra, that they might be maintained, were a necessary burden associated with it. For the sacra to pass out of the family was of little importance; had they passed out of the gens, there was no security for their continuance. In cases of transition from a family of one clan to a family of another, it was the duty of the pontifices to inquire how the continuity of the sacred rites might be maintained,[69] and hence one of the forms observed in the case of a change of gens by adrogation was the sacrorum detestatio, a public declaration that the individual who sought this change had ceased to claim any participation in the sacra of his race. The care for the continuity of the sacra of the clan was long one of the professed, and perhaps real, bars to marriage between Patricians and Plebeians.[70]

This question of the sacra is an index to the fact that membership of a gens might be either natural or artificial. The natural mode of entrance was by birth; and in the case of the patrician clans, before the right of intermarriage was extended to the Plebs, marriage with a patrician mother and by the ceremony of the confarreatio was necessary to constitute gentilitas for the child. Later any form of marriage sufficed, as it had doubtless always done in the case of the plebeian clans. The child, in accordance with the patriarchal principle, belonged to the clan of his father.

The form of religious marriage peculiar to the Patricians necessitated a change of gens on the part of the wife; for a woman married by the ceremony of confarreatio became a partner in the property and sacra of her husband,[71] and there is even some trace of her having originally changed her gentile name as well.[72] The ordinary plebeian form of marriage by mere agreement (consensus), which ultimately became almost universal, did not lead to a woman’s falling into the potestas of her husband, unless this power were assumed, originally by prescriptive right (usus), later by the ceremony of fictitious purchase (coemptio). In such a case she became a member of her husband’s family, but it is questionable whether the logical conclusion was pressed and she also became a member of his gens. The anomaly, if it existed, may perhaps be explained by the fact that the Plebeians, who evolved these forms of marriage, had, as a rule, no gentes.

The clan might also be changed by adoption. Adrogatio—perhaps the only form known to the old patrician community—was the method by which the head of a family voluntarily submitted himself to the potestas of another. Adoptio, on the other hand, was the change from one potestas to another. If there was a form of true adoption by patrician law,[73] it has been lost to us, and the earliest that we hear of is the plebeian form by threefold sale recognised in the Twelve Tables. At a later period it might also be effected by a written testament.

The family (familia)[74] in its original and proper meaning is the aggregate of members of a household under a common head; this head was the paterfamilias—the only member of the household who possesses legal rights.

The two ideas underlying the Roman conception of the family are those of unity and power, and both are singularly perfect. The former is attained, and the latter exercised, by the head. It is through him alone that the family is a person; and the authority he wields over the members subordinated to his will is called potestas.[75] The power over the children is described as patria potestas, as over the slave it is dominica. The two do not differ legally; there is only a difference of ethical signification. Under this potestas fall, firstly, the children, both sons and daughters; secondly, the descendants of these children; thirdly, the wife united to her lord by a form of marriage which makes her a member of the family; fourthly, the wives of the sons and grandsons who have entered the familia by a similar binding form of marriage. There is a complete absence of independent rights amongst these members of the household. As to the wife, any property that she might be possessed of, or which she acquired, passed absolutely into the power of her husband. He was responsible for her conduct and possessed the right of moderate chastisement. Severer punishment for wrongs to the household required the support of the family council. No legal action might be brought by the woman against her lord, for they were not two personalities, but one. He might divorce her on good grounds,[76] but if she were married under a form which subjected her to his power, she had no legal means of freeing herself from his tyrannous rule. Her position is that of a daughter and she inherits equally with her children. The decision as to whether the child of the marriage was to be reared (liberi susceptio) belonged to the father, but was, in the interest of the state, subjected at an early period to certain modifications. The “laws of Romulus”—that is, the early pontifical law—enjoined the rearing of every male child and of the first-born of the females; the exposure of offspring was to receive the assent of five neighbours,[77] and disobedience of these canons was to be visited with severe penalties on the parent who neglected the welfare of the state. The children and their descendants are never released from the absolute rule of the father as long as he lives. They cannot own property; for all that they acquire belongs to the common stock and is at the disposal of the head of the family. At best the father might permit the son, as he might permit the slave, to employ his own earnings for his own use. This is the peculium. Yet the grant is a mere concession, and one which may be withdrawn at any moment. If the son dies it lapses to the father; if the father dies it falls to the heir.

The child, as having no property, cannot give satisfaction for wrongs which he has committed. He is regarded as irresponsible, and responsibility for his conduct devolved on the father, who might either give compensation to the injured man, or surrender the delinquent for him to visit with his vengeance, or to use as a means of working out the damage (noxae deditio);[78] in the latter case the child becomes for ever the property of another. The father might sell him; if beyond the limits of the country, the son becomes a slave; if within the limits, he is one in private though not in public law (in causa mancipii), and exchanges servitude to the father for that to the purchaser. In an age which recognised no free contract of labour, the sale of the son was a means of putting him out to business.[79] The injunction of the Twelve Tables (perhaps the recognition of a custom far earlier than this law) that the thrice-repeated sale of a son involved loss of the patria potestas,[80] was an attempt to put an end to an inhuman traffic. The child as a thing might be stolen or detained, and as such be the object of recovery. In this case the father “vindicates” him as he would a chattel or a beast that had strayed from the homestead.[81]

The father might scourge or imprison his child,[82] even put him to death. The formula employed in adrogation (the procedure by which a man puts himself into the paternal power of another) shows that the jus vitae necisque was the most distinctive aspect of the patria potestas.[83] It was a power never questioned throughout the whole of Republican history, and which received no legal limitations until the time of the Middle Empire.[84] Sometimes it was employed as a means of saving the honour of the family, and there are instances of the son guilty of theft, the daughter of unchastity, being thus put to death;[85] sometimes it was enforced in the interest of the state to punish a public crime.[86]

Although law is in a sense an outline of life, it would be very misleading to fill up the content of Roman private life by analogy with this harsh outline. Like most of the theory of Roman law it had little correspondence with the facts; and this non-correspondence of fact and theory is the source of the strength and the beauty of Roman family life. If legal obligations do not exist between husband and wife, father and child, their place, in a civilised community, must be taken by moral obligations; and the very absence of legal sanctions will make these moral bonds peculiarly strong. It was so with the Roman family. It was an isolated, self-existent unit. The members clung closely to one another and to their head. The power of the father—the source of the unity of the household—fostered the devotion to the hearth, the love of home, which is such a distinctive attribute of the Roman. It created the belief that the members of the household, owing allegiance to a common chief, should act loyally by one another in all the relations of life, and loyalty to a living head begat loyalty to his predecessors; traditions of this union as persisting under the rule of a long line of deceased ancestors, account for the hereditary policy of Roman houses—the championship of principles advocated for centuries by such clans as the Valerii, the Porcii, and the Claudii.

The moral influence on the pater was also great. He defends, not his own selfish rights, but the rights of a corporation dependent on him; “self-help” is the essence of the principles of early Roman law. In private matters the authority of the state is weak, that of the individual strong. The rule of the Roman father was the benevolent despotism that embraces many within the sphere of its despotic interests, that forces others to observe its rights because its interests are not personal, that produces a deep sense of moral and religious responsibility towards the weak, a stern unyielding attitude towards the man who would infringe upon their rights. The only “individual” known to Roman law is the paterfamilias, but his was a glorified individuality, which, through its rule over the family, gathered strength to rule the world.

If it be thought that the loss of character must have been proportionally great in the case of the dependent members of the household, it must be remembered that the patria potestas is, for the individual, a transitory condition of things. Each subject member is preparing himself to be a pater in his own right. With the death of the existing head, all the hitherto dependent members are freed from the potestas; each forms a familia of his own; even his grandchildren by predeceased sons become heads of houses; the daughters are also freed from power, although, out of deference to the weakness of the sex, they are still under guardianship (tutela).[87] The family splits up into a number of familiae, and none of these is of more importance than the other. For the evils of primogeniture were unknown to Roman law. No hereditary caste based on the accident of birth was ever formed; and when we find an aristocracy of birth arising, it is the fittest son who can succeed his father in political office; for the bulk of the property, on which political influence was based, has not passed into the hands of some incapable elder brother.

But, apart from the moral checks on the authority of the father, which the absence of legal restraints made peculiarly strong, the civil law, public opinion, and the positive morality which found expression through certain religious or semi-religious organs, did impose certain restraints on a possible abuse of power. If the father is a lunatic (furiosus) he is, with his property, put under the care of his next of kin;[88] if he is wasteful (prodigus) and is squandering the property, of which (though legally it is his own) he is regarded only as the trustee, he is debarred from all commercial relations (commercium)[89] and prohibited from disposing of goods of which he is an unworthy administrator.

A very real customary control, one not actually enjoined by the civil law, but enforced by the powerful sovereign, which the Romans called the custom of their ancestors (mos majorum), was the obligation incumbent on the father of consulting a council of relatives (consilium domesticum) before taking any extreme step with respect to the members of his family. This was never limited to the agnatic circle; it admitted blood relations and relatives by marriage, while personal friends outside the family might be summoned as well.[90] Any severe punishment of a child and the divorce of a wife had to be submitted to the judgment of this assembly. How strong the sentiment in favour of this procedure was may be judged from the fact that in later times we find the censor (in Republican times the personal exponent of the moral sense of the community) degrading a senator who had divorced his wife without taking advice of the family council.[91] The sentiment was but one expression of the principle which runs through the whole of Roman life, that no man should act in an important matter without taking counsel of those best qualified to give it.

Certain extreme abuses of the paternal power were prohibited by religious law (fas), which in such cases enjoins capital penalties. By a supposed law of Romulus, a man who sells his wife is to be sacrificed to the infernal gods; if he divorces her without due cause, half of his property is to be confiscated to his wife and half to the goddess Ceres.[92] With the secularisation of Roman law such penalties disappeared, and it is questionable whether they often required enforcement,[93] for such religious bans are mainly the expression of a strong moral sentiment.

Lastly, there was the principle that the paternal power cannot interfere with the jus publicum. It is a principle that applies both to persons and to property. In its first application it means that the son can exercise his vote independently of the paternal control; that he can fill a magistracy which subjects his father to his command; that, at least in later times, even the function of guardianship (tutela) can be exercised without the father’s will; for this, too, is a public duty.[94] With respect to property, public law, though not infringing on the theory that all goods belong to the paterfamilias, yet does not regard them as the object of purely individual ownership. The father is rather a trustee than an owner, and even under the Servian constitution, that is, according to tradition, before the close of the monarchy, the value of a freehold is taken to qualify the members of the familia, not merely its head, for service to the state, and ultimately for the exercise of political rights.[95]

An instance of the triumph of the state in its conflict with private property is furnished by the position of the bondsman (nexus). It may be appropriately discussed here; for the nexus is in private law practically in the position of the son under power. He was a man who had contracted a debt on the security of his person,[96] and who, on non-fulfilment of that obligation, had had his body and his services attached by the creditor. In private law he is a slave; in public law he is a free-born Roman citizen, and may be summoned for service in the legions when the state needs his help.

It would be an anachronism to enter on a full treatment of Roman slavery in connexion with the beginnings of Roman history. Almost all that we know of the legal relations of slaves to their masters, of their capacities and their disabilities, their hopes of freedom, their position in the home, and their influence on the public life of the city, refers to a far later period. Yet the class doubtless existed from the earliest times, and as Roman legal conceptions became modified but never completely altered by the course of time, it is possible to give a faint outline of the conditions of slavery in the Regal and early Republican periods.

Slavery may at all periods of the history of Rome be defined as an absence of personality. The slave was a thing (res) and belonged to that more valuable class of chattels which the Romans called res mancipi, and which included land and beasts of burden. He was, therefore, a part of the homestead (familia),[97] the transfer of any portion of which required the most solemn forms of Roman law. As a thing, the master is said to exercise dominium over him; he might deal with him as he pleased, and had over him the power of life and death. The slave, on the other hand, has not only no rights against his master, but cannot conclude legal relations with others. He has no legal relatives, no legal wife; he may be permitted to retain the fruits of his own labour, but even his master’s will cannot make it his property. How far this “thing” possessed a potential personality we do not know—how far, that is, the personality inherent in him could be realised by subsequent emancipation. Liberation could at best have raised the slave to the condition of the client at this early period—a slight ascent in the scale of actual rights, but one that might have been valued for the greater personal freedom and the surer guarantee of religious protection which it gave. But the fact that the slave is a part of the homestead, and at the same time an intelligent being, makes him in the truest sense a member of the family. The owner is said to have power (potestas) over him, a word which is used only of rule over reasonable beings; and this dominica potestas does not differ essentially from the patria potestas which is exercised over the son. The treatment of the two was doubtless different, for the one would some day be a lord, the other would remain a slave, but their legal relation to the dominus was the same.

But the legal status of the slave is no true index of his condition. This will depend on two factors, his origin and his social relations to his master; and on both these grounds the early slavery of Rome must have compared favourably with that of later times. The slave trade was probably unknown, and the condition must have been mainly the result of capture in war from neighbouring states. Slavery is not altogether degrading when it is wholly the consequence of the laws of war. The slave was an Italian, perhaps of as noble birth as his master, and this, though it may have aggravated the bitterness of the lot, must have rendered possible an intimate social intercourse which would not have been possible with the barbarian, and must have forced on the master’s mind the conviction that a sudden turn in fortune’s wheel might place him in the same position in the city of his serf. Again, the servitude was domestic; whether employed in the home, or on the common lands of the clan, or on the petty plot of ground that the master called his own, the slave was never severed from his master or his master’s kindred. We hear in early times of his sitting at his master’s table,[98] and of his being the tutor and playmate of his lord’s children.[99] He may in some cases have been better off than the client or the unattached Plebeian engaged in some petty trade. Certainly the opportunities for the primitive culture afforded by the Roman household were more open to him than to the other orders excluded from the Patriciate. In the case of domestic slavery extending over a small area, public opinion is generally a powerful restraint on the master’s caprice. We do not know whether this opinion found a religious expression in such principles as those which protected the client’s rights; but the fact that the censor of the later Republic, who perpetuates the obligations of religious law, punishes acts of cruelty committed by the dominus,[100] may show that the slave was not wholly without the pale of divine protection.

If, as we have seen, the Roman’s chief mode of livelihood, the land, was not his own property but that of the clan, no individual disposition of it during lifetime or after death was possible, although there may have been some right of bequest over the movables classed as res nec mancipi. When the theory of common possession was modified by the recognition of a heritable allotment, bequest may have become possible; but doubtless intestate inheritance still continued to be the rule. A law of inheritance is first known to us from the Twelve Tables, which allowed the utmost freedom of bequest and legacy; but there was a survival both of theories and practices which show that testamentary disposition was originally regarded as the exception and not the rule.

First, we may notice that even in later times the immediate heirs of a man were regarded as having a claim to property, a kind of potential ownership, during the lifetime of the pater, and that inheritance is regarded merely as a continuation of ownership (dominium);[101] and in accordance with this view we find the practice of holding an inheritance in joint ownership, the co-heirs bearing the name of consortes.[102]

Secondly, the earliest testaments of which we have knowledge were public acts performed before the comitia of the people. The most ancient was the patrician form of testament—the testamentum comitiis calatis—effected at the comitia curiata which were summoned (calata) twice a year for this purpose.[103] The original purpose of this public testament is obscure. It is possible that originally it took place when there was no direct heir (suus heres) to receive the inheritance, and that it was accompanied by some form of adoption of a successor. The person adopted might have been the son belonging to another family; although of such a procedure there is no further trace in Roman law.[104]

The publicity of the act and the infrequency of its occurrence show how exceptional a will must have been, and that the normal mode of succession was that by intestacy. But we have no warrant for saying that this testament at the comitia calata was an act of private legislation and was permitted by the assembled burgesses. The gathering was perhaps merely a form, and the persons assembled may have acted only as witnesses;[105] but the very publicity would have made it almost impossible to pass over a son of the family, unless there were expressed grounds for his disinheritance.

The second kind of public will was the military testament (in procinctu),[106] but our authorities leave us in doubt as to whether this testament could be made in any gathering of the soldiers prepared to meet the enemy and in any place, or whether it was a formal act possible only in the great gathering of the exercitus in the Campus Martius—that gathering which was finally organised as a legislative assembly, existed by the side of the assembly of the Curies, and came to be known as the comitia centuriata.

In the first case it may have been an old patrician form of testament, an informal will permitted in an emergency, perhaps to enable a childless soldier to transmit his inheritance. We do not know whether it had absolute validity, or only a validity dependent on circumstances, such as the absence of direct heirs, or the satisfaction of religious conditions approved by subsequent pontifical scrutiny; on this hypothesis the comrades of the testator could hardly have acted other than as witnesses to the will.

On the second hypothesis it would have a closer analogy to the testament made in the comitia calata, and may have been introduced only when Plebeians were admitted to political rights in this assembly. It is true that this is not a necessary conclusion, for the patres gathered armed for war in the Campus long before the enrolment of the Plebs for military duties or their admission to political rights; but we may at least say that, when this enrolment and admission were effected, this form of testament could be used by the Plebeians. If we accept the traditional date for the Servian constitution, it was common to the two orders before the close of the monarchy.

But there was a third type of will, one purely plebeian, which from the comparative simplicity of its form and the readiness with which it could be employed (since it did not depend either on chance or formal gatherings of the people) gradually came, in its subsequent developments, to replace all others, and became the prevailing Roman form of testament-making. This was the testament per aes et libram, one use of the mancipatio or solemn transference of property “by the copper and the scales.” In the form in which it is known to us, it is a late development, for the sale of the property has entirely ceased to be a real, and has become a fictitious sale; the mancipation in fact has become a mere formality, and its employment is said to have been dependent on the condition that the testator “subita morte urguebatur”[107]—a condition which implies that the comitial testament could in ordinary cases be resorted to. But as the Plebs had originally no access to this form of will, the testament per aes et libram must have been in use among them long before its recognition as a form valid for the whole community. It was then regarded as a mere formal application of the mancipation to a special emergency, and as supplementary to the comitial testament; until its superior utility came to be recognised, the sentiment in favour of a free disposition of property grew to be strong, and the Twelve Tables, which effected the triumph of plebeian over patrician forms of procedure, recognised it as the normal mode of testate disposition.

By this act the testator, in the presence of five witnesses and the libripens, transferred the whole of his patrimony (familia) into the custody and guardianship of a person called “the purchaser of the family” (familiae emptor). In order to make a legal disposition of his property the vendor makes a formal announcement of the purport of the sale, and the buyer, as he pays the single copper coin for the patrimony, repeats the same form of words, “Let my custody and guardianship of your patrimony be purchased by this coin, to the effect that you may make a legal testament in accordance with public law.”[108] The words, which may not represent the most ancient formula, show that the familiae emptor is a mere trustee. Although the transference does not appear to have been conditioned by any express stipulation on the part of the vendor,[109] it was understood that it should only take effect on the death of the testator. On this the familiae emptor becomes guardian of the patrimony. He is not an heir but an executor, who distributes the property in accordance with the instructions of the testator from whom he has purchased.

The second stage is reached by the added importance given to the form of instruction (nuncupatio) uttered by the vendor. The Twelve Tables gave absolute validity to such instructions,[110] and the mere expression of the will of the testator came to be considered the essential part of the testament. In this announcement a true heir (heres) could be mentioned, and the familiae emptor sinks into the background. It is true that his presence is still necessary to the ceremony; he still professes to take the patrimony into his guardianship; but, like the man who holds the scales and the five witnesses, he is merely a formal assistant. The testament has ceased to be a contract; it is a one-sided expression of will and an arbitrary disposition of property. It may be either verbal or written; the last stage in the history of the civil testament is reached when the testator is allowed to exhibit a document to the witnesses of the mancipation with these words, “These waxen tablets contain my will and bequest; I ask you, Quirites, for your testimony.”[111]

Thus at a very early stage of Roman history, perhaps as early as the middle of the fifth century B.C., a man could exercise the most absolute power over the disposal of his goods. The only limitation was that the direct heirs (sui heredes) must be formally disinherited if they were to lose their rights. A mere passing over of a filius familias without formal disinheritance (exheredatio) rendered the will invalid; and in this case the sui succeeded to the vacant estate.

The social and political effects of such a dangerous liberty as the right of arbitrary testamentary disposition depend upon its use, and its use depends on the character of the people. The Roman character was, at all periods of history, devoted to the hereditary theory. It is one that was so strongly believed in that it asserted itself in spheres where it was never contemplated—during the later Republic in succession to office, in the early Empire in the succession to the Principate—and as applied to property it was an essential condition of the permanence of the Roman family. For the maintenance of a house a rigid system of intestate inheritance is bad; it may not produce great wealth, but it often produces great poverty. The only satisfactory system is a minute examination of each particular case by the state or by individuals. Such a control by the state was utterly alien to the laisser faire principles of the Roman, and history shows that the Decemvirs were right when they entrusted this discretionary power wholly to the pater. His functions as trustee were but extended to a period beyond his lifetime, and freedom of bequest was used as a means of equitable adjustment of property to the circumstances of the members of the family. The son who had made a rich marriage need not receive so much; the one destined to carry on the family traditions of office might receive more than the others. To him the heredium might be given, while the younger sons were drafted into colonies. We do not know the principles; but that the principles tended to the preservation of the family is proved by the long traditions of the noble Roman houses.

A legal view of the Roman family would be incomplete without consideration of the rights or infringement of rights dependent on it.

The full legal status of a Roman citizen was designated by the word caput. It denoted all the rights that he possessed, but primarily it is a conception of public law, for the possession of private was originally regarded as an annexe to the possession of public rights. Thus caput is retained even though the exercise of private rights is hindered for a time, as it is in the case of a son under power; the filius familias possesses a caput, although it is modified by his subjection to his father. This theory of the dependence of private on public rights, common to Greek and Roman law, probably accounts for the perpetual tutelage of women. The materfamilias holds an honourable position in the household; she is its queen, as her husband is its king, but yet she is subjected by marriage to the legal position of her own daughter, and, on her husband’s death, is in the custody of her sons; for a primitive society cannot be brought to believe that a being who cannot fight, and may not fill offices of state or exercise a vote, is capable of looking after its own interests. Appearance before a court of law at Rome, whether for the purpose of defending one’s own or another’s rights, was regarded as a public act; and Roman sentiment so strongly disapproved a woman’s taking part in public life that, when one was found bold enough to plead her cause in the Forum, the Senate in alarm made an official inquiry of the gods what the portent signified.[112] It is possible that in the earliest stage of Roman law women were not regarded as having any rights to defend; later they are regarded as having rights, and therefore a caput, but as incapable of defending them. When, in the latest stage, the disabilities of sex disappear partly through enactment,[113] but chiefly through a series of legal fictions, the capacity of women to defend their own interests first emerges.[114]

The limitation by which a series of civil rights is destroyed is spoken of as a “lessening of caput” (capitis deminutio). It is in every case an infringement of rights already possessed by the individual. Now the loss of public rights could only follow on a loss of citizenship; but this is not the diminution but the annihilation of caput, and could not therefore in the earliest stage of Roman law (when there was no status recognised but that of citizenship) be called a capitis deminutio. The term must have been wholly confined to a loss of private rights, i.e. to the loss of the rights conveyed by the control of a familia.[115] Thus the adrogatus suffers a lessening of caput by passing into the power of another. But a change from a higher to a lower status (even when the higher did not imply active rights) may at an early period have been regarded as an infringement of caput. We know, for instance, that the datio in mancipium of a son of a family was thought (at what period is uncertain) to involve it, because the child passes from a better to a worse station, although in his former condition he had no active rights of his own. It is stranger still that, certainly at an early period, the fact of a woman’s passing into her husband’s power (conventio in manum) was held to have this consequence. It is one that is scarcely intelligible in the case of a filia familias who passes from one potestas to another; but in the case of a woman only under the burden, lighter and ever tending to be more relaxed, of the tutela of her relatives, it is a natural though not strictly legal conception.[116] Some other applications of the system are still more artificial, and are perhaps creations of late Roman jurists who came to consider that the essence of a loss of caput was a change of status (status commutatio).[117] Thus adoption, which is the change from one potestas to another, and even manumission, which is the freedom from power, were supposed to involve it. These applications contain some historical truth only in so far as both these changes involve a temporary mancipation.

The original capitis deminutio is thus a purely private law conception and implies the distinction between persons sui juris and alieni juris. To the first category belong those who are free from the power of another, to the latter those who are under the potestas, manus, and mancipium; amongst citizens, therefore, the son, the wife, and any one mancipated to another. The person alieni juris is not altogether devoid of private rights, but they are singularly incomplete in their effects. Thus the son under power has the right of marriage (conubium), but the children of the marriage are not in his power but in his father’s; he has (if not in the earliest period, yet throughout the greater part of Roman history) the right of taking part in the legal business of trade (commercium), yet all that he acquires by this business belongs to his father. In his case, however, the condition is transitory, while in the case of the slave and the mancipatus (apart from the possibility of emancipation) it is permanent.

Conversely, the fact of being sui juris does not always imply freedom of action; this might be limited through consideration of age or sex. Minors and women may be free from potestas, but the former were subject to a temporary, the latter originally to a perpetual tutela.

§ 4. The Citizens and the Political Subdivisions of the State

The whole collection of Roman citizens forms the populus Romanus quiritium,[118] or populus Romanus quirites.[119] Of the terms thus placed in apposition, populus Romanus is the more general descriptive name, and quirites the official title by which the citizens are addressed in the assembly. Yet both words appear to have the same signification; populus is the armed host,[120] and the quirites are the “bearers of the lance.”[121] If the latter etymology is correct, the word quirites came, by a course of development which finds many parallels in Roman history, to mean exactly the opposite of its original signification. At the end of the Republic it signifies the citizens in their purely civil capacity, wearing the toga, the garb of peace, and exercising political functions within the city; Caesar once quelled a mutiny of his legions by addressing them as quirites, showing by this address that they were disbanded and were no longer soldiers.[122]

A more real historical difficulty with respect to the original connotation of these words, is to determine whether they denoted the whole people, Plebeians as well as Patricians. Roman records do not use populus as equivalent to the patrician community alone; but these records all refer to a time after the Plebeians had won political rights, at least the rights of serving in the legions and of voting. If populus and quirites denoted the aggregate of fighting, and therefore privileged, men, they must have originally referred exclusively to the patrician community. After the Servian constitution the words denote the whole people (universus populus). Populus and plebs are henceforth only distinguished as the whole to the part—the distinction being necessary, since the Plebs continued to form a corporation apart, and this corporation excluded the patrician families.[123] So, in a later official formula, senatus populusque Romanus denotes two corporations, the latter composed of all the members of the state, but in this the individual members of the smaller corporation are included.

Civis, a word of uncertain origin, signifies less definitely than quirites the possession of active political rights. Hence its application to women and to the partially-privileged members of the state—to those who were, at certain periods of Roman history, given rights in private law, while debarred from the exercise of the suffrage or the attainment of office. It is possible that the distinction between the full citizen (civis optimo jure) and the partial citizen (civis non optimo jure), although probably not a primitive,[124] may yet be an ancient conception of Roman law. Those Plebeians who had never been, or who had ceased to be, entirely dependent on a patronus for the exercise of their legal rights, would practically have belonged to this latter class. Before the reform of Servius, which gave them political privileges, they might have been called cives; it is only after this reform that they could have been called quirites. It was, perhaps, in consequence of this change in the constitution that cives replaced quirites as the designation of the full citizens with reference to all their rights.

If we ask what the original rights of the citizen of Rome were, it is impossible to frame a simple category applicable to all the cives. Taking our stand at a period just before the Servian reforms, we find that private rights were possessed in varying degrees by all the members of the community. These rights are generally summed up as those of trade and of marriage (commercii et conubii). The first is the legal capacity to acquire full rights in every kind of property, to effect its acquisition, and to transfer it by the most binding forms, and to defend the acquired right in one’s own person by Roman process of law (legis actio). This commercium was possessed equally by the Patricians and the free Plebeians. It was no infringement of the right of commerce that the right of occupying domain-land wrested from the enemy may for a long time have been possessed only by the dominant order;[125] for such land was not acquired, but only held on a precarious tenure from the state, and the privilege was, perhaps, one of fact rather than of law. The jus conubii is the right to conclude a marriage which is regarded as fully valid by the state (matrimonium legitimum or jure civili), and which, therefore, gives rise to the patria potestas. This right was possessed by the Patricians and by at least the free Plebeians, but by each class only within itself. There was no right of intermarriage between the orders, and the member of each effected his position as a father by a different ceremony.[126] The rights consequent on membership of a clan—those of inheritance and of religious communion—were, as we saw, probably shared with the Patricians by those Plebeians at least whose ancestors had never been in a condition of clientship.

Public rights—those of voting, of serving as a fully-equipped soldier in the legions, and probably of holding office as a delegate of the king—were possessed exclusively by the Patricians; and to these privileges we must add the right of holding the fullest communion with the gods (jus auspiciorum).

Auspicium, or the divination by birds, came eventually to be applied to any circumstance that might be interpreted as an expression of the will of the gods. The capacities of human beings with reference to these signs are partly a right of invoking, partly a power of interpreting them. Both the right and the power rest on the assumption that there is a medium of intercourse between the national gods and the citizens of the state,[127] and the peculiarities of the conception which the Romans formed of this divine patronage are shown by their views both of the nature of the revelation and of the qualifications requisite for the “medium.”

(i.) The revelation is not an answer to a question about future events, for true divination is not an attempt to pry into the hidden counsels of the gods; this profession of the Chaldaeans was never looked on with favour at Rome, and no science of the future was encouraged by the state. The Roman consultation of the gods is only employed as the test of the rightness of an already formed human resolution.[128] It tells men only whether they are to carry out a course of action already purposed; it may confirm them in it or warn them from it; and it is the duty of men to seek a sign either of encouragement or of warning. It is of the highest importance to remember this view of the guidance of the gods, for it is the chief sign of the way in which the Romans, in spite of their genuinely religious spirit (nay, as an outcome of it), subordinated the theocratic to the lay element. The chief effect of this subordination is the unfettered use of human reason; religion is employed as a test, rather than as a guide, of rightness of action. This is a thoroughly lay view of the function of religion in life, very unlike that of the Jewish prophet who questions God in detail, but only for interpretation of a law which is the product of His, not of the human will. The belief that the gods do not give instruction, but merely advice, gave an “inward freedom” to the Roman, which made him at times resent the divine interference, and we shall find many instances of his forcing an interpretation to suit his wishes. The omen that is not seen need not be attended to, and precautions are taken that it shall not be seen. In undertaking acts of state, the magistrates are bound to ask for signs; but all the efforts of human ingenuity are directed to secure that the signs shall be favourable.[129]

(ii.) It is plain that, on this theory of religious intervention, no priestly medium is required between the gods and their worshippers. Divination as the science of the future is an elaborate art, which cannot be possessed by the ordinary man. It requires the knowledge of ritual to compel the divine utterance; it assumes that the gods have special confidence in the select participators of an inner cultus, to whom they reveal what is hidden from the many; it requires the devotion of a lifetime, and often special rules of asceticism and purity, to interpret the hidden signs; it leads, in short, to the belief in oracular power, in the prophetic gift, in the claims of a priesthood specially set apart.[130] There was none of this at Rome. The right of invoking auspices is not a priestly gift; it is one that is possessed, in a higher degree by the magistrate, in a lower degree by all the full citizens of the primitive Roman community. It is true that there is a class of wise men, the augurs, whose chief function is the interpretation of signs, but their function is limited to interpretation; they have no more power than any private individual, and less power than the magistrate, of eliciting such a revelation. Yet, if the assistance of the augur was called in, and his interpretation given, this verdict was final. We are told that disobedience to it, at least by the magistrate in taking the public auspices, was in early times visited with a capital penalty;[131] a statement which probably means that the heads of the Roman religion, the pontiffs, reckoned such an impiety as one for which the gods would accept no expiation, and for which, therefore, the penalty of excommunication (sacer esto) was pronounced.

The right of taking the auspices is said to have been a gift peculiar to the Patricians; but the extent of this gift can be estimated only with reference to a fourfold division of the auspices, which, from its nature, must have been primitive and not a creation of the later disciplina of the augurs.

The auspices were divided into impetrativa (or impetrita) and oblativa.[132] The auspicia impetrativa were those which were sought and asked for, and such signs might be taken from observation of the sky or from the flight or sounds of birds. The oblativa were those which were forced on the attention, and which, since they were not sought, were generally regarded as an impediment to action, and, therefore, as unfavourable. They were gathered from a heterogeneous collection of signs of ill-omen (dirae). It is plain that the right to take or, as it is expressed, to have auspices (habere auspicia) can refer only to the first of these two categories; it was this right that was assumed to be peculiar to the Patricians; it was the members of the original clans alone, the primitive patres, who had the right of asking signs of the gods, and it was held that every important act of their lives, whether public or private, should be pervaded by this divine intercourse. It was believed that it was through auspices that the city had been raised, political development attained, and former victories won.[133] The existence of the patrician order is from this point of view a necessary condition of the existence of the state itself, for without it the right of eliciting the divine will would be wholly lost.[134] But no human power could prevent the Plebeians from following the religious scruples of their betters in giving heed to those warnings which were thrust upon their notice. The auspicia oblativa, whether the gods destined them for others besides the patrician body or not, must from the earliest times have been respected by the Plebeians, and have guided their political conduct when they became a corporation within the state.

The right of taking auspices was neither a priestly nor even a magisterial function, but was possessed by every Patrician. But the man in a private capacity could exercise it only in his private concerns; the auspices destined to guide public action are vested in the person of the patrician magistrate. Hence the distinction between auspicia publica and privata. There was a time when no important act of business or domestic life was undertaken without an appeal for divine guidance.[135] Marriage especially demanded the taking of the auspices; and even when the custom of such private divination had become wholly discarded, a survival of the custom is found in the presence of auspices, friends of the bridegroom who superintend the due performance of the rites.[136] The confarreatio was older than the traditional institution of the augural college, and it is not probable that official intervention was brought to bear on marriage, still less on such concerns as were more strictly private. Hence it is difficult to see how the Plebeians could have been prevented from taking the auspicia privata, although their use of them was probably scoffed at by their patrician rulers. On the one hand, we find that the incapacity of the Plebeians to share in the auspices was one of the arguments used against the permission of conubium between the orders;[137] on the other, that the auspex continues to be an integral part of a ceremony which was founded on plebeian marriage law.

It was different with the auspices taken on behalf of the state (auspicia publica). It is the Patricians alone who have these auspices, and only a magistrate belonging to the order can exercise the right of looking for them (spectio).[138] This remains not only a purely magisterial, but a purely patrician privilege, and the so-called plebeian magistrates of later times, great as their power was, had not the gift. It is quite true that, after the Plebs had forced its way into the consulship, this right could not be denied to the plebeian holders of the supreme office. But the admission was based on the legal fiction that the holder of an office once reserved to the patres was, for religious purposes, a patrician magistrate.[139]

The enjoyment of full political rights in ancient Rome was conditioned only by membership of a patrician gens; full citizenship here, as in most ancient states, being dependent on birth, and the membership of a purely private association satisfying all the demands that the state made as a condition of the attainment of its rights. But there were other forms of association of a definitely political character, amongst which the citizens were distributed, and as members of which they exercised active political rights or were subject to personal burdens. These were the three patrician tribes of Ramnes, Tities, and Luceres, and the thirty curiae. With reference to the question whether these were primary and natural associations of an ethnic character or artificial creations made by a supreme authority after the founding of Rome, we have already seen[140] that the tribus are probably an ethnic survival artificially employed; in the case of the curiae, it must remain far less certain whether they were of spontaneous growth or purely artificial creations, or (what is perhaps more probable) in the main natural associations, artificially regulated in number and grouping to suit a political purpose.

The tribe, which was a division not merely of the citizen body but of the land, was the basis for taxation and the military levy.[141] We know nothing of the first burden, but it is probable that no detailed scheme of direct taxation existed in the early Roman state. The revenues from the king’s domains probably rendered him self-sufficing, while the patrician burgesses served in the army at their own cost, and were doubtless expected to defray the expenses of their retainers. It is probable that in cases of emergency a tax in kind was levied from the landholders of the tribes.

Of the military burdens tradition has preserved some plausible details. The army was known as the legio or “gathering,”[142] and was composed of three “thousands” (milites),[143] one from each of the three tribes. These foot-soldiers were commanded by three or nine tribal officers, the tribuni militum.[144] The cavalry consisted of three hundred celeres, one from each of the three tribes, each commanded by three tribuni celerum. When the Patriciate was enlarged by the addition of the gentes minores,[145] these three hundreds (centuriae) were increased to six.[146]

Besides the heavy infantry and the cavalry, there may have been a corps of light-armed troops (velites and arquites), and these would doubtless have been composed mainly of clients. We do not know whether the free Plebeians were forced to serve; but, if they did, it would only have been in this inferior capacity, which required no time for training and no cost of maintaining a panoply. It is evident that the whole burden of the regular levy, and of such war-taxation as then existed, fell upon the Patricians, and before the close of the monarchy an effort was made to remedy this unequal distribution of burdens—an effort which had as its result the abolition of the patrician tribes as the leading divisions of the state and a serious infringement of patrician rights.

The thirty curiae, originally local units, as is proved by their names,[147] were divided, ten into each of the three tribes. The members of the clans belonging to the same curia were called curiales. But, although the curiae had local centres, membership of these bodies did not depend on residence in a given locality. It was hereditary; and if the members of a gens migrated from its curia, the gentiles were still members of that state-division. The curiae were religious as well as political associations, which had from the first, or finally developed, a close corporate life. Each had its peculiar sacra[148] and a place of worship, containing an altar and chapel, which itself bore the name curia;[149] and the religious affairs of each were conducted by a priest called curio, assisted by a flamen curialis.[150] The thirty curiones formed a college, of which the curio maximus was the president.[151]

It is difficult to say how far the religious organisation of the curiae was a natural or artificial development. But artifice was certainly at work in determining their important political character. The primitive popular assembly at Rome is the comitia curiata, composed wholly of Patricians. Here each member of a patrician clan above the legal age—probably the age of eighteen, at which military service commenced—had the right of giving a single vote; a majority of the curiales decided the vote of the particular curia, and the decision of the assembly was determined by the majority of the groups.

They also had, in a secondary degree, an importance of a military kind; for the supply of knights to the corps of celeres is said to have been effected through the curiae.[152]

§ 5. The Monarchical Constitution

It is generally agreed that the monarchical constitution of early Rome rested on a limited sovereignty of the people, a power restricted by the extraordinary authority of their sole magistrate. This popular sovereignty was asserted in jurisdiction, in legislation, and in the ratification of magisterial power. The attribution of the right of appeal in criminal cases (provocatio)[153] to the people shows that with them rests either the sovereign attribute of pardon or some right of trying criminal cases in the last resort. Tradition makes the Roman people the sole source of law,[154] that is, of standing ordinances of a general kind which are to bind the community,[155] although the initiative in legislation can come only from the king; and apart from the rulings of the pontifical college, which did not require the sanction of the people, this theory of primitive legislation seems to be correct; for the very early laws passed by the comitia on the downfall of the monarchy do not appear to mark any violent break in the theory of the constitution. We do not know whether the king employed the formula afterwards used by the Republican magistrates, which elicited the “will and command” of the burgesses (velitis, jubeatis, quirites); but law (lex) is from the first something “laid down” by a competent authority, and binding, therefore, in virtue of the power that ordains it.[156] After its ordinance it may or must create a contractual relation between individuals,[157] but there is no hint of its being the result of a contract or co-operation between independent authorities. The source of law is, therefore, simple; it is the people’s will; but, through the bar to utterance created by the magistracy, this will is very limited in its capacity for expression. The people are also affirmed to have been in a certain sense the source of honour, and typical illustrations of this power are presented by the traditional beliefs that the regal insignia of Etruria, adopted by the kings of Rome, were only assumed by them with the consent of Senate and people,[158] and that the appointment of officers for special purposes, although these may have been in theory merely delegates of the king, had to be ratified by laws of the curiae. The quaestors, the earliest prototypes of the later magistrates at Rome, are said to have been so appointed.[159]

The people, therefore, possessed certain sovereign rights, but each right was limited by the vast authority of their personal representative, who wielded the whole of the executive, and so much of the legislative power as is implied in the sole right of initiative. We cannot even speak of the people as vesting this power in their king; for their right of election was, as we shall see, probably as limited as their power of legislation.

This personal head possessed a variety of titles which marked the various aspects of his rule—titles which survived into the Republic, and, on the differentiation of the functions which he united, were applied to various magistrates. As supreme judge he was judex, as leader and commander in war praetor,[160] dictator, and magister populi.[161] The most general title which marked him out as universal head of the state, in religious as in civil matters, was that of rex, the “regulator” of all things human and divine—a title which survived in the rex sacrorum, the heir of the king in sacrifice and in ritual. The powers on which this position was based were summed up in the word imperium.[162]

The severance of the king from the state, over which he ruled, was also expressed in certain outward signs (insignia), which distinguished him from the rest of the burgesses. He was preceded by twelve “summoners” (lictores),[163] each carrying a bundle of rods (fasces), and the axe-head gleamed from these bundles even within the walls, for the king’s military jurisdiction could be exercised within the city. His robe was of “purple,” or rather of scarlet—the colour in which most nations have seen an emblem of sovereignty—but his dress probably varied with the ritual which he was performing, and the three kinds of striped garment (trabea) which survived in the Republic—that of purple for the priestly office, of purple and saffron for augury, of purple striped with white for the rex[164]—were probably all vestments of the king. Tradition also assigns him the eagle-headed sceptre, the golden crown, the throne (solium),[165] and the chariot within the walls, from which the curule chair (sella curulis) was believed to be derived.[166] The statement that the triumphal insignia of the Roman magistrate were but the revival of the ordinary adornments of the king[167] is extremely probable; for the crown, the toga picta (a development of the purple robe),[168] and the chariot reappear in the Roman triumph.

Other royal prerogatives were connected with the primitive conception of a patriarchal monarchy. The king, although he lacks the absolutism of the paterfamilias, occupies much the same position in the state as the father does in the family. In a sense he is owner of the whole community, and as such capable of commanding the munera of the burgesses.[169] But a large portion of the public domain was more peculiarly set apart for his own private use.[170] This crown-land must have been worked mainly by the king’s own clients, who held it precario from him;[171] for there seems no reason to doubt the belief that a large proportion of the half-free Plebeians were in the immediate clientela of the king, connected with the community chiefly through him, its representative. These may have been captives who had submitted to the fides of the state, and whom their conqueror had not attached as dependants to other leading families of the community.

The theory of a kingship is best expressed in the mode in which the monarch ascends the throne. The alternative principles that have usually been recognised are the hereditary, the elective, or that of divine right.

Of the hereditary principle there is no trace at Rome. It is contradicted by the facts of the traditional history, which believed that, when the hereditary principle was first realised in the last king, the monarchy came to an end; and it is expressly denied by later authors who reflected on the character of the early monarchy.[172] There is rather more to be said for the theory of divine right. Romulus is the son of a god and awaits the verdict of heaven before he assumes his rule. Numa, his successor, insists that the same verdict shall be appealed to.[173] But, if the taking of the auspices be the sign of a divine origin, then everything in Rome proceeds almost equally from the gods. Probably in earlier as in later Rome religion played a most important subsidiary part in public life, but we have no warrant for believing that it was ever the sole guiding power. As we shall see, in discussing the question of the inauguration of the king, this theory raises into a primary and material what was merely a secondary and formal element in the transmission of the monarchy, although this formal element was one of the utmost necessity and importance.

The Roman thinkers were thus thrown back on the theory of election. Tradition is unanimous in representing the monarchy as elective—depending, i.e., on free popular election, or on such election guided by the Senate.[174] On the death of a king there is no immediate successor with a title to rule; an interim-king (interrex) is appointed for a few days, and on his proposal a king is elected by the patrician burgesses at the comitia curiata, subject to the sanction of the patrician Senate (auctoritas patrum).[175]

In the expression of these views the Roman thinkers were attempting to reconstruct the monarchy from a knowledge of their own magistracy; for they rightly believed that this magistracy was a very slight modification of the original kingship. The elective principle of the Republic was not regarded as a novelty in the theory of the magistracy, and there were two reasons for this view. The first was that there was a real continuity, for the elective process was always subsidiary to another, that of nomination by the magistrate who guided the elections. The latter became an almost formal process in the Republic, but the question was not asked whether at one time it may not have been the material element. Secondly, there was really an elective element in the monarchy, which survived as a form into the Republic, a form which the hypothesis of monarchical election adopted by Roman antiquarians could not explain. It is strange that, in seeking for their theory of regal appointment, they should not have appealed to the clearest survival of the monarchy, the dictatorship, on which so much of the rest of their reconstruction of the monarchical power was based.

In the two definite survivals of the Roman monarchy election was not recognised; the dictator was nominated by the consul, not by his predecessor, for it was only an occasional office; and the rex sacrorum was nominated by the pontifex maximus,[176] no longer by the preceding rex; for this office simply continued the priestly functions of the king, the religious headship being vested in the pontifex. This oldest principle of appointment survived in Republican Rome as an integral part of the elective process, to reappear again in the Principate, in cases where election had become a mere form, as the living principle.[177] It is, in fact, the one principle that has a continuous history; election is the Republican interlude.

If, therefore, we are led to consider the monarchy as not purely an elective office, and substitute for election the principle of nomination, we must consider that it was the right, and probably the duty, of the king of Rome to nominate his successor. If there had been no due nomination during his lifetime, and consequently no distinctly marked out successor to the monarchy, the duty of providing such a successor lapsed to the Senate, from which body the interrex was appointed. The interregnum is said by tradition to have dated from the first vacancy in the regal office, after the death of Romulus.[178] When such a vacancy had occurred, the auspices, under which the state had been founded, and which were the mark of divine acceptance of the kingly rule, “returned to the patres,”[179] and we are told that this was from the first interpreted to mean, not to the comitia curiata, but to the patrician Senate. The earliest interregnum is represented as an exercise of collective rule by the Senate; but, on the analogy of the sole magistracy, it took the form of a creation of a succession of interreges. The first step was the division of the Senate into decuriae;[180] each decury had fifty days of government allotted to it; within this period each individual member of the decuria exercised rule for five days, and, according to one account, the succession of the decuries was determined by lot (sortitio).[181] The rule is represented as collegiate, the whole decury possessing the imperium, while the individual who ruled for five days had the fasces and the external emblems of the royal power.[182] In later times we shall see that, though the interregnum was retained, the whole procedure was simplified by the abandonment of the collegiate principle. If it ever existed, we must suppose that, as soon as ever the resolution of the Senate was taken, the collective rule could be interrupted by any interrex, except the first, nominating the king.[183] The interregnum, although represented by our authorities as an invariable part of the procedure in the appointment of a king, was probably from the first a makeshift, only resorted to when the ordinary procedure had been interrupted through unforeseen causes, and there was no definitely designated successor.[184]