No More Learning

For this purpose all the members of the community (with the ex ception of the women, and the children still incapable of bearing arms)—in other words, the “spearmen ” (quiriter)
as in addressing them they were designated-‘assembled at the seat of justice, when the king convoked them for the purpose of making a communication (convenlio, :ontia), or formally bade them meet (comitia) for the third week (in trinum noundinum), to consult them curies. He
such formal assemblies of the community to be held regularly twice year, on the 24th of March and the 24th of May, and as often besides as seemed to him neces sary. The burgesses, however, were always summoned not to speak, but to hear; not to ask questions, but to answer them. No one spoke in the assembly but the king, or he to whom the king saw fit to grant liberty of speech; and the speaking of the burgesses consisted of simple answer to the question of the king, without discussion, without reasons, without conditions, without breaking up the question even into parts. Nevertheless the Roman burgess-community, like the Germanic and not improbably the primitive Indo-Germanic communities in general, was the real and
ultimate basis of the political idea of sovereignty. But in the ordinary course of things this sovereignty was dormant, or only had its expression in the fact that the burgess-body voluntarily bound itself to render allegiance to its president. For that purpose the king, after he had entered on his oflice, addressed to the assembled curies the question whether they would be true and loyal to him and would
appointed
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a
;
it,
it
94
ORIGINAL CONSTITUTION OF ROME BOOK 1
according to use and wont acknowledge himself as well as his messengers (lidares) ; a question, which undoubtedly might no more be answered in the negative than the parallel homage in the case of a hereditary monarchy might be refused.
It was in thorough consistency with constitutional princi ples that the burgesses, just as being the sovereign power, should not on ordinary occasions take part in the course of public business. So long as public action was confined to the carrying into execution of the existing legal arrange ments, the power which was, properly speaking, sovereign in the state could not and might not interfere: the laws governed, not the lawgiver. But it was different where a change of the existing legal arrangements or even a mere deviation from them in a particular case was necessary; and here accordingly, under the Roman constitution, the burgesses emerge without exception as actors ; so that each act of the sovereign authority is accomplished by the co operation of the burgesses and the king or interrex. As the legal relation between ruler and ruled was itself sanc tioned after the manner of a contract by oral question and answer, so every sovereign act of the community was accom plished by means of a question (rogatio), which the king addressed to the burgesses, and to which the majority of the curies gave an affirmative answer. In this case their consent might undoubtedly be refused. Among the Romans, therefore, law was not primarily, as we conceive com mand addressed by the sovereign to the whole members of the community, but primarily contract concluded between
the constitutive powers of the state by address and counter address. 1 Such a legislative contract was dejure requisite
Us that which binds," related to llgare, "to bind to something") denotes, u well known, contract in general, along, however, with the connotation of contract whose terms the proposer dictates and the other party simply accepts or declines as was usually the case, eg. with public licitalianu. In the [ex publica pupuli Romans‘ the proposer was
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:rrar. v ORIGINAL CONSTITUTION OF ROME
95
in all cases which involved a deviation from the ordinary consistency of the legal system. In the ordinary course of law any one might without restriction give away his property to whom he would, but only upon condition of its immediate transfer: that the property should continue for the time being with the owner, and at his death pass over to another, was a legal impossibility—unless the community should allow it; a permission which in this case the burgesses could grant not only when assembled in their curies, but also when drawn up for battle. This was the origin of testaments. In the ordinary course of law the freeman could not lose or surrender the inalienable blessing of freedom, and therefore one who was subject to no house master could not subject himself to another in the place of a son-unless the community should grant him leave to do so. This was the adrogatio. In the ordinary course of law burgess-rights could only be acquired by birth and could never be lost—unless the community should confer the
or allow its surrender; neither of which acts, doubtless, could be validly done originally without a decree of the curies. In the ordinary course of law the criminal whose crime deserved death, when once the king or his deputy had pronounced sentence according to judgment and justice, was inexorably executed; for the king could only judge, not pardon-unless the condemned burgess appealed to the mercy of the community and the judge
allowed him the opportunity of pleading for pardon. This was the beginning of the pro'aocatio, which for that reason was especially permitted not to the transgressor who had refused to plead guilty and had been convicted, but to him who confessed his crime and urged reasons in palliation of it. In the ordinary course of law the perpetual treaty con cluded with a neighbouring state might not be broken
the king, the acceptor the people; the limited co-operation of the latter was thus significantly indicated in the very language.
patriciate
96
ORIGINAL CONSTITUTION OF ROME BOOK]
unless the burgesses deemed themselves released from it on account of injuries inflicted on them. Hence it was necessary that they should be consulted when an aggressive war was contemplated, but not on occasion of a defensive war, where the other state had broken the treaty, nor on the conclusion of peace; it appears, however, that the question was in such a case addressed not to the usual assembly of the burgesses, but to the army. Thus, in
it was necessary to consult the burgesses whenever the king meditated any innovation, any change of the exist ing public law; and in so far the right of legislation was from antiquity not a right of the king, but a right of the king and the community. In these and all similar cases the king could not act with legal effect without the co operation of the community; the man whom the king alone declared a patrician remained as before a non-burgess, and the invalid act-could only carry consequences possibly de
facto, not de jure. Thus far the assembly of the community, however restricted and bound at its emergence, was yet from antiquity a constituent element of the Roman common wealth, and was in law superior to, rather than co-ordinate with, the king.
But by the side of the king and of the burgess-assernbly there appears in the earliest constitution of the community a third original power, not destined for acting like the fomier or for resolving like the latter, and yet co-ordinate with both and within its own rightful sphere placed over both. This was the council of elders or senatus. Beyond doubt it had its origin in the clan-constitution: the old tradition that in the original Rome the senate was composed of all the heads of households is correct in state-law to this extent, that each of the clans of the later Rome which had not merely migrated thither at a more recent date referred its origin to one of those household-fathers of the primitive city as its ancestor and patriarch. If, as is probable, there
general,
senate.
CRAP. V ORIGINAL CONSTITUTION OF ROME
97
was once in Rome or at any rate in Latium a time when, like the state itself, each of its ultimate constituents, that is
to say each clan, had virtually a monarchical
and was under the rule of an elder-whether raised to that position by the choice of the clansmen or of his predecessor, or in virtue of hereditary succession-the senate of that time was nothing but the collective body of these clan-elders, and accordingly an institution independent of the king and of the burgess-assembly ; in contradistinction to the latter, which was directly composed of the whole body of the burgesses, it was in some measure a representative assembly of persons acting for the people. Certainly that stage of independence when each clan was virtually a state was surmounted in the Latin stock at an immemorially early period, and the first and perhaps most diflicult step towards developing the community out of the clan-organization-the setting aside of the clan-elders-had possibly been taken in Latium long before the foundation of Rome; the Roman clan, as we know without any visible head, and no one of the living clansmen especially called to represent the common patriarch from whom all the clansmen descend or profess to descend, so that even inheritance and guardianship, when they fall by death to the clan, devolve on the clan-members as whole. Nevertheless the original character of the council of elders bequeathed many and important legal
consequences to the Roman senate. To express the matter briefly, the position of the senate as something other and more than mere state-council—than an assemblage of number of trusty men whose advice the king found
fitting to obtain—hinged entirely on the fact that was once an assembly, like that described by Homer, of the princes and
rulers of the people sitting for deliberation in circle round the king. So long as the senate was formed by the aggregate of the heads of clans, the number of the members :annot have been tired one, since that of the clans was
vol.
organization
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Prensa tives of the senle. The inter regnum.
not so; but in the earliest, perhaps even in pre-Roman, times the number of the members of the council of elders for the community had been fixed without respect to the number of the then existing clans at a hundred, so that the amalgamation of the three primitive communities had in state-law the necessary consequence of an increase of the seats in the senate to what was thenceforth the fixed normal number of three hundred. Moreover the senators were at all times called to sit for life; and if at a later period the lifelong tenure subsisted more de facto than dejure, and the revisions of the senatorial list that took place from time to time afforded an opportunity to remove the unworthy or the unacceptable senator, it can be shown that this arrangement only arose in the course of time. The selection of the senators certainly, after there were no longer heads of clans, lay with the king; but in this selection during the earlier epoch, so long as the people retained a vivid sense of the individuality of the clans, it was probably the rule that, when a senator died, the king should call another experienced and aged man of the same clanship to fill his place. It was only, we may surmise, when the community became more thoroughly amalgamated and inwardly united, that this usage was departed from and the selection of the senators was left entirely to the free judgment of the king, so that he was only regarded as failing in his duty when be omitted to fill up vacancies.
The prerogatives of this council of elders were based on the view that the rule over the community composed of clans rightfully belonged to the collective clan-elders, although in accordance with the monarchical principle of the Romans, which already found so stern an expression in the household, that rule could only be exercised for the time being by one of these elders, namely the king. Every member of the senate accordingly was as such, not‘ in practice but in prerogative, likewise king of the community;
98
ORIGINAL CONSTITUTION OF ROME 300! I
AA
CI-IAP- v ORIGINAL CONSTITUTION OF ROME
99
and therefore his insignia, though inferior to those of the king, were of a similar character: he wore the red shoe like the king; only that of the king was higher and more hand some than that of the senator. On this ground, moreover, as was already mentioned, the royal power in the Roman community could never be left vacant. When the king died, the elders at once took his place and exercised the prerogatives of regal power. According to the immutable
however that only one can be master at a time, even now it was only one of them that ruled, and such an “interim king” (im‘errex) was distinguished from the king nominated for life simply in respect to the duration, not in respect to the plenitude, of his authority. The duration of the oflice of interrex was fixed for the individual holders at not more than five days ; it circulated accordingly among the senators on the footing that, until the royal oflice was again permanently filled up, the temporary holder at the expiry of that term nominated a successor to himself, likewise for five days, agreeably to the order of succession fixed by lot. There was not, as may readily be conceived, any declaration of allegiance to the intcrrex on the part of the community. Nevertheless the interwx was entitled and bound not merely to perform all the oflicial acts otherwise pertaining to the king, but even to nominate a king for life with the single exception, that this latter right was not vested in the first who held the office, presumably because the first was regarded as defectively appointed inasmuch as he was not nominated by his predecessor. Thus this assembly of elders was the ultimate holder of the ruling power (imperzhm) and the divine protection (auspia'a) of the Roman
commonwealth, and furnished the guarantee for the uninterrupted continuance of that commonwealth and of its monarchical-though not hereditarily monarchical-organ ization. If therefore this senate subsequently seemed to the Greeks to be an assembly of kings, this was only
principle
roo ORIGINAL CONSTITUTION OF ROME 8003 I
what was to be expected; it had in fact been such originally.
But it was not merely in so far as the idea of a perpetual kingdom found its living expression in this assembly, that
The council of elders, indeed, had no title to interfere with oudoritar. the official functions of the king. The latter doubtless, in the event of his being unable personally to lead the army or to decide a legal dispute, took his deputies at all times
from the senate ; for which reason subsequently the highest
of command were regularly bestowed on senators alone, and senators were likewise employed by preference as jurymen. But the senate, in its collective capacity, was never consulted in the leading of the army or in the administration of justice ; and therefore there was no right of military command and no jurisdiction vested in the senate of the later Rome. On the other hand the council of elders was held as called to the guardianship of the existing constitution against encroachments by the king and the burgesses. On the senate devolved the duty of
examining every resolution adopted by the burgesses at the suggestion of the king, and of refusing to confirm it if it seemed to violate existing rights; or, which was the same thing, in all cases where a resolution of the community was constitutionally requisite-as on every alteration of the constitution, on the reception of new burgesses, on the declaration of an aggressive war-the council of elders had a right of veto. This may not indeed be regarded in the light of legislation pertaining jointly to the burgesses and the senate, somewhat in the same way as to the two chambers in the constitutional state of the present day; the senate was not so much law-maker as law-guardian, and could only cancel a decree when the community seemed to have exceeded its competence-to have violated by its decree existing obligations towards the gods or towards
The senate
and the
resolutions
of the com it was an essential member of the Roman constitution. mnnity:
farm»
posts
CHAP- V ORIGINAL CONSTITUTION OF ROME 101
foreign states or organic institutions of the community. But still it was a matter of the greatest importance that— to take an example-when the Roman king had proposed- a declaration of war and the burgesses had converted it into a decree, and when the satisfaction which the foreign community seemed bound to furnish had been demanded in vain, the Roman envoy invoked the gods as witnesses of the wrong and concluded with the words, “But on these matters we shall consult the elders at home how we may obtain our rights ;” it was only when the council of elders had declared its consent, that the war now decreed by the burgesses and approved by the senate was formally declared. Certainly it was neither the design nor the effect of this rule to occasion a constant interference of the senate with the resolutions of the burgesses, and by such guardianship to divest them of their sovereign power; but, as in the event of a vacancy in the supreme oflice the senate secured the continuance of the constitution, we find it here also as the shield of legal order in opposition even to the supreme power-the community.
With this arrangement was probably connected the The senate apparently very ancient usage, in virtue of which the king 9-! state
council. previously submitted to the senate the proposals that were
to be brought before the burgesses, and caused all its members one after another to give their opinion on the subject. As the senate had the right of cancelling the resolution adopted, it was natural for the king to assure himself beforehand that no opposition was to be appre hended from that quarter; as indeed in general, on the one hand, it was in accordance with Roman habits not to decide matters of importance without having taken counsel with other men, and on the other hand the senate was called, in virtue of its very composition, to act as a state council to the ruler of the community. It was from this usage of giving counsel, far more than from the prerogative!
The orl ginal con stitution of Rome.
I02 ORIGINAL CONSTITUTION OF ROME 800K I
which we have previously described, that the subsequent extensive powers of the senate were developed ; but it was in its origin insignificant and really amounted only to the prerogative of the senators to answer, when they were asked a question. It may have been usual to ask the previous opinion of the senate in affairs of importance which were neither judicial nor military, as, for instance—apart from the proposals to be submitted to the assembly of the people —in the imposition of task-works and taxes, in the summon ing of the burgesses to war-service, and in the disposal of the conquered territory; but such a previous consultation, though usual, was not legally necessary. The king convoked the senate when he pleased, and laid before it his questions ; no senator might declare his opinion unasked, still less might the senate meet without being summoned, except in the single case of its meeting on occasion of a vacancy to settle the order of succession in the oflice of interrex. That the king was moreover at liberty to call in and consult other men whom he trusted alongside of, and at the same time with, the senators, is in a high degree probable. The advice, accordingly, was not a command; the king might omit to comply with while the senate had no other means for giving practical effect to its views except the already-mentioned right of cassation, which was far from being universally applicable. “I have chosen you, not that ye may be my guides, but that ye may do my bidding:” these words, which later author puts into the mouth of king Romulus, certainly express with
substantial correctness the position of the senate in this respect.
Let us now sum up the results. Sovereignty, as con ceived by the Romans, was inherent in the community of burgesses but the burgess-body was never entitled to act alone, and was only entitled to co-operate in action, when there was to be departure from existing rules. By its
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CRAP. v ORIGINAL CONSTITUTION OF ROME
103
side stood the assembly of the elders of the community appointed for life, virtually a college of magistrates with
regal power, called in the event of a vacancy in the royal oflice to administer it by means of their own members until it should be once more definitively filled, and entitled to overturn the illegal decrees of the community. The royal power itself was, as Sallust says, at once absolute and limited by the laws (imperz'um legt'timum) ; absolute, in so far as the king's command, whether righteous or not, must in the first instance be unconditionally obeyed; limited, in so far as a command contravening established usage and not sanctioned by the true sovereign—the people-carried no permanent legal consequences. The oldest constitution of Rome was thus in some measure constitutional monarchy inverted. In that form of government the king is regarded as the possessor and vehicle of the plenary power of the state, and accordingly acts of grace, for example, proceed solely from him, while the administration of the state belongs to the representatives of the people and to the executive responsible to them. In the Roman constitution the community of the people exercised very much the same functions as belong to the king in England: the right of pardon, which in England is a prerogative of the crown, was in Rome a prerogative of the community; while all government was vested in the president of the state.
in conclusion, we inquire as to the relation of the state itself to its individual members, we find the Roman polity equally remote from the laxity of mere defensive combination and from the modern idea of an absolute omnipotence of the state. The community doubtless exercised power over the person of the burgess in the imposition of public burdens, and in the punishment of offences and crimes; but any special law inflicting, or threatening to inflict, punishment on an individual on account of acts not universally recognized as penal always
a
If,
r04
ORIGINAL CONSTITUTION OF ROME BOOK I
appeared to the Romans, even when there was no flaw in point of form, an arbitrary and unjust proceeding. Far more restricted still was the power of the community in respect of the rights of property and the rights of family which were coincident, rather than merely connected, with these ; in Rome the household was not absolutely annihilated and the community aggrandized at its expense, as was the case in the police organization of Lycurgus. It was one of the most undeniable as well as one of the most remarkable principles of the primitive constitution of Rome, that the state might imprison or hang the burgess, but might not take away from him his son or his field or even lay permanent taxation on him. In these and similar things the community itself was restricted from encroaching on the burgess, nor was this restriction merely ideal; it found its expression and its practical application in the constitu tional veto of the senate, which was certainly entitled and bound to annul any resolution of the community contraven
ing such an original right. No community was so all powerful within its own sphere as the Roman; but in no community did the burgess who conducted himself un blameably live in an equally absolute security from the risk of encroachment on the part either of his fellow burgesses or of the state itself.
These were the principles on which the community of Rome governed itself—a free people, understanding the duty of obedience, clearly disowning all mystical priestly delusion, absolutely equal in the eye of the law and one with another, bearing the sharply-defined impress of a nationality of their own, while at the same time (as will be afterwards shown) they wisely as well as magnanimously opened their gates wide for intercourse with other lands. This constitution was neither manufactured nor borrowed ; it grew up amidst and along with the Roman people. It was based, of course, upon the earlier constitutions-4h:
CHAP. v ORIGINAL CONSTITUTION OF ROME
[05
Italian, the Graeco-Italian, and the Indo-Germanic ; but a long succession of phases of political development must have intervened between such constitutions as the poems of Homer and the Germania of Tacitus delineate and the oldest organization of the Roman community. In the aoclamation of the Hellenic and in the shield-striking of the Germanic assemblies there was involved an expres sion of the sovereign power of the community ; but a wide interval separated forms such as these from the organized
jurisdiction and the regulated declaration of opinion of the Latin assembly of curies. It is possible, moreover, that as the Roman kings certainly borrowed the purple mantle and the ivory sceptre from the Greeks (not from the Etruscans), the twelve lictors also and various other external arrange ments were introduced from abroad. But that the develop
ment of the Roman constitutional law belonged decidedly to Rome or, at any rate, to Latium, and that the borrowed elements in it are but small and unimportant, is clearly demonstrated by the fact that all its ideas are uniformly expressed by words of Latin coinage.
This constitution practically established for all time the fundamental conceptions of the Roman state; for, as long as there existed a Roman community, in spite of changes of form it was always held that the magistrate had absolute command, that the council of elders was the highest authority in the state, and that every exceptional resolution required the sanction of the sovereign or, in other words, of the community of the people.
/ v/
mntion of the Pala tine and
Quirinnl d.
CHAPTER VI
m NON-BURGESSES AND 'rrn: REFORMED cous'ri'r'rmou
THE history of every nation, and of Italy more especially, is a :ynoikismos on a great scale. Rome, in the earliest form in which we have any knowledge of was already triune, and similar incorporations only ceased when the spirit of Roman vigour had wholly died away. Apart from that primitive process of amalgamation of the Ramnes, Tities, and Luceres, of which hardly anything beyond the bare fact known, the earliest act of incorporation of this sort was that by which the Hill-burgesses became merged in the
Palatine Rome. The organization of the two communities, when they were about to be amalgamated, may be conceived to have been substantially similar; and in solving the problem of union they would have to choose between the alternatives of retaining duplicate institutions or of abolishing one set of these and extending the other to the whole united community. They adopted the former course with respect to all sanctuaries and priesthoods. Thenceforth the Roman community had its two guilds of Salii and two of Luperci,
and as had two forms of Mars, had also two priests for that divinity—the Palatine priest, who afterwards usually took the designation of priest of Mars, and the Colline, who was termed priest of Quirinus. It likely, although
can no longer be proved, that all the old Latin priest hoods of Rome—the Augurs, Pontifices, Vestals, and Fetials
106 THE NON-BURGESSES AND 800! I
it
it
is
it is
it,
CHAP- vr THE REF ORMED CONSTITUTION
r07
-originated in the same way from a combination of the priestly colleges of the Palatine and Quirinal communities. In the division into local regions the town on the Quirinal hill was added as a fourth region to the three belonging to the Palatine city, viz. the Suburan, Palatine, and suburban (Esquiliae). In the case of the original synoili’ismos the annexed community was recognized after the union as at least a tribe (part) of the new burgess-body, and thus had in some sense a continued political existence; but this course was not followed in the case of the Hill-Romans or in any of the later processes of annexation. After the
union the Roman community continued to be divided as formerly into three tribes, each containing ten wardships (:uriae); and the Hill-Romans-whether they were or were not previously distributed into tribes of their own-must have been inserted into the existing tribes and wardships. This insertion was probably so arranged that, while each tribe and wardship received its assigned proportion of the new burgesses, the new burgesses in these divisions were not amalgamated completely with the old ; the tribes hence forth presented two ranks : the Tities, Ramnes, and Luceres being respectively subdivided into first and second (prions,
With this division was connected in all prob ability that arrangement of the organic institutions of the community in pairs, which meets us everywhere. The three pairs of Sacred Virgins are expressly described as representatives of the three tribes with their first and second ranks; and it may be conjectured that the pair of Lares worshipped in each street had a similar origin. This arrangement is especially apparent in the army: after the union each half-tribe of the tripartite community furnished a hundred horsemen, and the Roman burgess cavalry was thus raised to six “ hundreds,” and the number of its cap tains probably from three to six. There is no tradition of any corresponding increase to the infantry; but to this
posterz'ores).
|o8 THE NON-BURGESSES AND BOOK 1
origin we may refer the subsequent custom of calling out the legions regularly two by two, and this doubling of the levy probably led to the rule of having not three, as was perhaps originally the case, but six leaders~of-division to command the legion. It is certain that no corresponding increase of seats in the senate took place: on the contrary, the primitive number of three hundred senators remained the normal number down to the seventh century ; with which it is quite compatible that a number of the more prominent men of the newly annexed community may have been received into the senate of the Palatine city. The same course was followed with the magistracies: a single king presided over the united community, and there was no change as to his principal deputies, particularly the warden of the city. It thus appears that the ritual institutions of the Hill-city were continued, and that the doubled burgess body was required to furnish a military force of double the numerical strength ; but in other respects the incorporation of the Quirinal city into the Palatine was really a subordina tion of the former to the latter. If we have rightly assumed that the contrast between the Palatine old and the Quirinal new burgesses was identical with the contrast between the first and second Tities, Ramnes, and Luceres, it was thus the gentes of the Quirinal city that formed the “second ” or the “lesser. ” The distinction, however, was certainly more
an honorary than a legal precedence. At the taking of the vote in the senate the senators taken from the old clans were asked before those of the “lesser. ” In like manner the Colline region ranked as inferior even to the suburban (Esquiline) region of the Palatine city; the priest of the Quirinal Mars as inferior to the priest of the Palatine Mars ; the Quirinal Salii and Luperci as inferior to those of the Palatine. It thus appears that the synaikismos, by which the Palatine community incorporated that of the Quirinal, marked an intermediate stage between the earliest . synm'kis
um. vr THE REFORMED CONSTITUTION
109
was by which the Tities, Ramnes, and Luceres became blended, and all those that took place afterwards. The annexed community was no longer allowed to form a separate tribe in the new whole, but it was permitted to furnish at least a distinct portion of each tribe; and its ritual institutions were not only allowed to subsist—as was afterwards done in other cases, after the capture of Alba for example—but were elevated into institutions of the united community, a course which was not pursued in any subsequent instance.
This amalgamation of two substantially similar common Depend‘
wealths produced rather an increase in the size than a change in the intrinsic character of the existing community. A second process of incorporation, which was carried out far more gradually and had far deeper effects, may be traced back, so far as the first steps in it are concerned, to this epoch; we refer to the amalgamation of the burgesses and the metom'. At all times there existed side by side with the burgesses in the Roman community persons who were protected, the “listeners” (clzhntes), as they were called from their being dependents on the several burgess-house holds, or the “multitude” (plebes, from plea, plenus), as they were termed negatively with reference to their want of
cuts and
guests.
The elements of this intermediate stage between the freeman and the slave were, as has been shown (p. 79), already in existence in the Roman household : but
in the community this class necessarily acquired greater importance a'efado and de fun, and that from two reasons. In the first place the community might itself possess half free clients as well as slaves; especially after the conquest of a town and the breaking up of its commonwealth it might often appear to the conquering community advisable not to sell the mass of the burgesses formally as slaves, but
I Hahn’! plateau in clientele: prina'pum dercriptam. Cicero, 4': Rep. "- 9
political rights. 1
no
THE NON-BURGESSES AND BOOK r
to allow them the continued possession of freedom defacto, so that in the capacity as it were of freedmen of the com munity they entered into relations of clientship whether to the clans, or to the king. In the second place by means of the community and its power over the individual burgesses, there was given the possibility of protecting the clients against an abusive exercise of the domim'um still subsist
ing in law. At an immemorially early period there was
into Roman law the principle on which rested the whole legal position of the metoea', that, when a master on occasion of a public legal act—such as in the making of a testament, in an action at law, or in the census-expressly or tacitly surrendered his domim'um, neither he himself nor his lawful successors should ever have power arbitrarily to recall
introduced
or reassert a claim to the person of the freedman himself or of his descendants. The clients and their posterity did not by virtue of their position
possess either the rights of burgesses or those of guests : for to constitute a burgess a formal bestowal of the privilege was requisite on the part of the community, while the relation of guest presumed the holding of burgess-rights in a com munity which had a treaty with Rome. What they did obtain was a legally protected possession of freedom, while
they continued to be de jure non-free. Accordingly for a lengthened period their relations in all matters of property seem to have been, like those of slaves, regarded in law as relations of the patron, so that it was necessary that the latter should represent them in processes at law ; in connec tion with which the patron might levy contributions from them in case of need, and call them to account before
him criminally. By degrees, however, the body of metom'
that resignation
to acquire and to alienate in their own name, and to claim and obtain legal
outgrew
these fetters; they began
redress from the Roman burgess-tribunals formal intervention of their patron.
without the
. __. . r~m,__
CHAP- V! THE REFORMED CONSTITUTION
In matters of marriage and inheritance, equality of rights with the burgesses was far sooner conceded to foreigners (p. 50) than to those who were strictly non-free and belonged to no community; but the latter could not well be pro hibited from contracting marriages in their own circle and from forming the legal relations arising out of marriage those of marital and paternal power, of agnatia and gentilita: of heritage and of tutelage—after the model of the corre sponding relations among the burgesses.
Similar consequences to some extent were produced by the exercise of the £14s lwspilii, in so far as by virtue of it foreigners settled permanently in Rome and established a domestic position there. In this respect the most liberal principles must have prevailed in Rome from primitive times. The Roman law knew no distinctions of quality in inherit ance and no locking up of estates. It allowed on the one hand to every man capable of making a disposition the entirely unlimited disposal of his property during his lifetime ; and on the other hand, so far as we know, to every one who was at all entitled to have dealings with Roman burgesses, even to the foreigner and the client, the unlimited right of acquiring moveable, and (from the time when immoveables could be held as private property at all) within certain limits also immoveable, estate in Rome. Rome was in fact a commercial city, which was indebted for the commence ment of its importance to international commerce, and which with a noble liberality granted the privilege of settle ment to every child of an unequal marriage, to every manu mitted slave, and to every stranger who surrendering his rights in his native land emigrated to Rome.
At first, therefore, the burgesses were in reality the pro Class of
tectors, the non-burgesses were the protected ; but in Rome as in all communities which freely admit settlement but do not throw open the rights of citizenship, it soon became a matter of increasing difliculty to harmonize this relation de
metoeri subsisting by the side of the com munlty.
II2 THE NON-BURGESSES AND BOOK r
fun with the actual state of things. The flourishing of com merce, the full equality of private rights guaranteed to all Latins by the Latin league (including even the acquisition of landed property), the greater frequency of manumissions as prosperity increased, necessarily occasioned even in peace a disproportionate increase of the number of metoea'. That number was further augmented by the greater part of the population of the neighbouring towns subdued by force of arms and incorporated with Rome ; which, whether it removed to the city or remained in its old home now reduced to the rank of a village, ordinarily exchanged its native burgess-rights for those of a Roman metoikor. Moreover the burdens of war fell exclusively on the Old
and were constantly thinning the ranks of their patrician descendants, while the nm‘om' shared in the results of victory without having to pay for it with their blood.
Under such circumstances the only wonder is that the Roman patriciate did not disappear much more rapidly than it actually did. The fact of its still continuing for a pro longed period a numerous community can scarcely be accounted for by the bestowal of Roman burgess-rights on several distinguished foreign clans, which after emigrating from their homes or after the conquest of their cities received the Roman franchise—for such grants appear to have occurred but sparingly from the first, and to have become always the more rare as the franchise increased in value. A cause of greater influence, in all likelihood, was the introduction of the civil marriage, by which a child begotten of patrician parents living together as married persons, although without wnfarrealr'o, acquired full burgess-rights equally with the child of a confarreatio marriage. It is at least probable that the civil marriage, which already existed in Rome before the Twelve Tables but was certainly not an original institution, was introduced for the purpose of
burgesses
CHAP- vi THE REFORMED CONSTITUTION
the disappearance of the patriciate. 1 To this connection belong also the measures which were already in the earliest times adopted with a view to maintain a numerous posterity in the several households (p. 74).
Nevertheless the number of the metoeci was of necessity constantly on the increase and liable to no diminution, while that of the burgesses was at the utmost perhaps not decreasing; and in consequence the metom' necessarily acquired by imperceptible degrees another and a freer
The non-burgesses were no longer merely emancipated slaves or strangers needing protection; their ranks included the former burgesses of the Latin com munities vanquished in war, and more especially the Latin settlers who lived in Rome not by the favour of the king or of any other burgess, but by federal right. Legally un restricted in the acquiring of property, they gained money and estate in their new home, and bequeathed, like the
their homesteads to their children and children's children. The vexatious relation of dependence on particular burgess-households became gradually relaxed. Ifthe liberated slave or the immigrant stranger still held an entirely isolated position in the state, such was no longer the case with his children, still less with his grandchildren, and this very circumstance of itself rendered their relations to the patron of less moment. While in earlier times the client was exclusively left dependent for legal protection on the intervention of the patron, the more the state became
l The enactment: of the Twelve Tables respecting mus show clearly that they found the civil marriage already in existence. In like manner the high antiquity of the civil marriage is clearly evident from the fact that equally with the religious marriage, necessarily involved the marital power (p. 73), and only differed from the religious marriage as respected the manner in which that power was acquired. The religious marriage itself was held as the proprietary and legally necessary form of acquiring a wife whereas, in the case of civil marriage, one of the general forms of acquiring property used on other occasions—delivery on the part of a person entitled to give away, or prescription-was requisite in order to lay the foundation of a valid marital power.
vol.
preventing
position.
r13
burgesses,
; r
it,
at
"4
THE NON-BURGESSES AND BOOK 1
and the importance of the clanships and households in consequence diminished, the more frequently must the individual client have obtained justice and redress of injury, even without the intervention of his patron, from the king. A great number of the non-burgesses, particularly the members of the dissolved Latin communities, had, as we have already said, probably from the outset not any place as clients of the royal or other great clans, and
the king nearly in the same manner as did the
The king, whose sovereignty over the burgesses
consolidated
obeyed
burgesses.
was in truth ultimately dependent
on the good-will of must have welcomed the means of forming out of his own pratégés essentially dependent on him a
body bound to him by closer ties.
Thus there grew up by the side of the burgesses a
second community in Rome: out of the clients arose the Plebs. This change of name is significant. In law there
was no difference between the client and the plebeian, the “dependent” and the "man of the multitude ;” but in fact there was a very important one, for the former term brought
those obeying,
Pllhl
The Ser vian con stitution.
the relation of dependence on a member of the politically privileged class; the latter suggested
merely the want of political rights. As the feeling of special dependence diminished, that of political inferiority forced itself on the thoughts of the free mined; and it was only the sovereignty of the king ruling equally over all that prevented the outbreak of political conflict between the privileged and the non-privileged classes.
The first step, however, towards the amalgamation of the two portions of the people scarcely took place in the revolutionary way which their antagonism appeared to
into prominence
The reform of the constitution, which bears the name of king Servius Tullius, is indeed, as to its historical origin, involved in the same darkness with all the
events of a period respecting which we learn whatever we
foreshadow.
CHAP- vr THE REFORMED CONSTITUTION
J15
know not by means of historical tradition, but solely by means of inference from the institutions of later times. But its character testifies that it cannot have been a change demanded by the plebeians, for the new con stitution assigned to them duties alone, and not
rights. It must rather have owed its origin either to the wisdom
of one of the Roman kings, or to the urgency of the burgesses that they should be delivered from exclusive liability to burdens, and that the non-burgesses should be made to share on the one hand in taxation-that in the obligation to make advances to the state (the tributum)_ and rendering task-work, and on the other hand in the levy. Both were comprehended in the Servian constitution, but they hardly took place at the same time. The bringing in of the non-burgesses presumably arose out of the econo mic burdens; these were early extended to such as were “possessed of means” (lamp/em) or “settled people” (ad sidui, freeholders), and only those wholly without means, the “ children-producers ” (proletarii, capite (emf), remained free from them. Thereupon followed the politically more important step of bringing in the non-burgesses to military duty. This was thenceforth laid not upon the burgesses as
such, but upon the possessors of land, the trz'éules, whether they might be burgesses or mere metom'; service in the army was changed from personal burden into burden on property. The details of the arrangement were as follow.
Every freeholder from the eighteenth to the sixtieth The in year of his age, including children in the household of am freeholder fathers, without distinction of birth, was under obligation of service; so that even the manumitted slave
had to serve, in an exceptional case he had come
into possession of landed property. The Latins also possessing land-others from without were not allowed to
acquire Roman soil—were called in to service, so far as they
if
a
a
is,
Cavalry.
116 THE NON-BURGESSES AND BOOK I
had, as was beyond doubt the case with most of them, taken up their abode on Roman territory. The body of men liable to serve was distributed, according to the size of their portions of land, into those bound to full service or the possessors of a full hide,1 who were obliged to appear in complete armour and in so far formed pre-eminently the war army (clams), and the four following ranks of smaller land holders-the possessors respectively of three fourths, of a half, of a quarter, or of an eighth of a whole farm—from whom was required fulfilment of service, but not equipment in complete armour, and they thus had a position below the full rate (infra :lassem). As the land happened to be at that time apportioned, almost the half of the farms were full hides, while each of the classes possessing respectively three-fourths, the half, and the quarter of a hide, amounted
to scarcely an eighth of the freeholders, and those again holding an eighth of a hide amounted to fully an eighth.
It was accordingly laid down as a rule that in the case of the infantry the levy should be in the proportion of eighty holders of a full hide, twenty from each of the three next ranks, and twenty-eight from the last.
The cavalry was similarly dealt with. The number of divisions in it was tripled, and the only difference in this case was that the six divisions already existing with the old names (Tities, Ranmes, Luau: primi and secundz') were left to the patricians, while the twelve new divisions were formed chiefly from the non-burgesses. The reason for this difference is probably to be sought in the fact that at that period the infantry were formed anew for each campaign and discharged on their return home, whereas the cavalry with their horses were on military grounds kept together also in time of peace, and held their regular drills, which continued to subsist as festivals of the Roman
1 [Hg/2, hide, as much as can be properly tilled with one plough, nlled in Scotland at plough-gate. )
can. V] THE REFORMED CONSTITUTION
n7
equites down to the latest times. 1 Accordingly the squadrons once constituted were allowed, even under this reform, to keep their ancient names. In order to make the cavalry accessible to every burgess, the unmarried women and orphans under age, so far as they had possession of land, were bound instead of personal service to provide the horses for particular troopers (each trooper had two of them), and to furnish them with fodder. On the whole there was one horseman to nine foot-soldiers; but in actual service the horsemen were used more sparingly.
The non-freeholders (adcensi, people standing at the side of the list of those owing military service) had to supply the army with workmen and musicians as well as with a number of substitutes who marched with the army unarmed (velati), and, when vacancies occurred in the field, took their places in the ranks equipped with the weapons of the sick or of the fallen. .
To facilitate the levying of the infantry, the city was lf'l-fll distributed into four “parts” (tribus) ; by which the old me“ triple division was superseded, at least so far as concerned
its local significance. These were the Palatine, which comprehended the height of that name along with the
Velia; the Suburan, to which the street so named, the Carinae, and the Caelian belonged; the Esquiline; and the Colline, formed by the Quirinal and Viminal, the “hills” as contrasted with the “mounts” of the Capitol and Palatine. We have already spoken of the formation of these regions 64), and shown how they originated out of the ancient double city of the Palatine and the
By what process came to pass that every freeholder burgess belonged to one of those city-districts, we cannot tell; but this was now the case; and that
For the same reason, when the levy was enlarged after the admission of the Hill-Romans. the equites were doubled, while in the infantry force instead of the single "gathering " (Iegia) two legions were called out
(9- lwf-l
Quirinal.
1
it
(p.
US THE NON-BURGESSES AND sooK r
the four regions were nearly on an equality in point of numbers, is evident from their being equally drawn upon in the levy. This division, which had primary reference to the soil alone and applied only inferentially to those who
was merely for administrative purposes, and in particular never had any religious significance attached to it; for the fact that in each of the city-districts there were six chapels of the enigmatical Argei no more confers upon them the character of ritual districts than the erection of an altar to the Lares in each street implies such character in the streets.
Each of these four levy-districts had to furnish approxi mately the fourth part not only of the force as whole, but of each of its military subdivisions, so that each legion and each century numbered an equal proportion of conscripts from each region, in order to merge all distinctions of a gentile and local nature in the one common levy of the community and, especially through the powerful levelling influence of the military spirit, to blend the metom' and the burgesses into one people.
possessed
In military point of view, the male population capable tion of the of bearing arms was divided into first and second levy, my. the former of which, the “juniors” from the commence
ment of the eighteenth to the completion of the forty-sixth year, were especially employed for service in the field, while the “seniors” guarded the walls at home. The military unit came to be in the infantry the now doubled legion (p. 9o)-a phalanx, arranged and armed completely in the old Doric style, of 6000 men who, six file deep, formed front of race heavy-armed soldiers; to which were attached 2400 “unarmed” (iv/elites, see 91, note). The four first ranks of the phalanx, the classis, were formed by the fully-armed hoplites of those possessing full hide; in the fifth and sixth were placed the less completely equipped farmers of the second and third division; the
Organiza
. . _». -—~
4_—_'- — A
p. a
a
a
a
a
a
it,
cuxr. v! THE REFORMED CONSTITUTION
119
two last divisions were annexed as rear ranks to the phalanx or fought by its side as light-armed troops. Provision was made for readily supplying the accidental gaps which were so injurious to the phalanx. Thus there served in it 84 centuries or 8400 men, of whom 6000 were hoplites, 4000 of the first division, 1000 from each of the two following, and 2400 light-armed, of whom I000 belonged to tne fourth, and 1200 to the fifth division; approximately each levy-district furnished to the phalanx 2100, and to each century 2 5 men. This phalanx was the army destined for the field, while a like force of troops was reckoned for the seniors who remained behind to defend the city. In this way the normal amount'of the infantry
came to 16,800 men, 80 centuries of the first division, 20 from each of the three following, and 28 from the last division—not taking into account the two centuries
of substitutes or those of the workmen or the musicians. To all these fell to be added the cavalry, which consisted of 1800 horse; often when the army took the field, however, only the third part of the whole number was attached to it. The normal amount of the Roman army of the first and second levy rose accordingly to close upon
20,000 men: which number must beyond doubt have corresponded on the whole to the effective strength of the Roman population capable of arms, as it stood at the time
this new organization was introduced. As the
when
population
augmented, but the several divisions were strengthened by persons added, without altogether losing sight, however, of the fundamental number. Indeed the Roman corporations in general, closed as to numbers, very frequently evaded the limit imposed upon them by admitting supernumerary members.
This new organization of the army was accompanied by on. . . a more careful supervision of landed property on the part
increased the number of centuries was not
Political effects of the Ser vian‘ mili tary or ganization.
I20 THE NON-BURGESSES AND BOOK t
of the state. It was now either ordained for the first time or, if not, at any rate defined more carefully, that a land register should be established, in which the several
of land should have their fields with all their appurtenances, servitudes, slaves, beasts of draught and of burden, duly recorded. Every act of alienation, which did not take place publicly and before witnesses, was declared null; and a revision of the register of landed
which was at the same time the levy-roll, was directed to be made every fourth year. The manaltatio and the cem-us thus arose out of the Servian military organization.
It is evident at a glance that this whole institution was from the outset of a military nature. In the whole detailed scheme we do not encounter a single feature suggestive of any destination of the centuries to other than purely military purposes; and this alone must, with every one accustomed to consider such matters, form a suflicient reason for pronouncing its application to political objects a later innovation. as probable, in the earliest period every one who had passed his sixtieth year was excluded from the centuries, this has no meaning, so far as they were intended from the first to form representation of the burgess-community similar to and parallel with the curies. Although, however, the organization of the centuries was introduced merely to enlarge the military resources of the burgesses the inclusion of the "mom' and, in so far, there no greater error than to exhibit the Servian organization as the introduction of timocracy in Rome-yet the new obligation imposed upon the inhabit ants to bear arms exercised in its consequences material influence on their political position. He who obliged to become soldier must also, so long as the state not rotten, have in his power to become an oflicer; beyond question plebeians also could now be nominated in Rome as centurions and as military tribunes. Although, more
proprietors
property,
it a
is a is
a
is
by
If, is
a
can. VI THE REFORMED CONSTITUTION 1:1
over, the institution of the centuries was not intended to curtail the political privileges exclusively possessed by the burgesses as hitherto represented in the curies, yet it was inevitable that those rights, which the burgesses hitherto had exercised not as the assembly of curies, but as the burgess-levy, should pass over to the new centuries of burgesses and metoea'. Henceforward, accordingly, it was the centuries whose consent the king had to ask before beginning an aggressive war (p. 96). It is important, on account of the subsequent course of development, to note these first steps towards the centuries taking part in public
affairs; but the centuries came to acquire such rights at_ first more in the way of natural sequence than of direct design, and subsequently to the Servian reform, as before, the assembly of the curies was regarded as the proper burgess-community, whose homage bound the whole people in allegiance to the king. By the side of these new land owning full-burgesses stood the domiciled foreigners from the allied Latium, as participating in the public burdens, tribute and task-works (hence mum'a'pes) ; while the burgesses not domiciled, who were beyond the pale of the tribes, and had not the right to serve in war and vote, came into view only as “owing tribute” (aenm'i).
In this way, while hitherto there had been distinguished only two classes of members of the community, burgesses and clients, there were now established those three political classes, which exercised a dominant influence over the constitutional law of Rome for many centuries.
When and how this new military organization of the
Time and
Roman community came into existence, can only be con occasion of . the reform.
jectured. It presupposes the existence of the four regions ; in other words, the Servian wall must have been erected before the reform took place. But the territory of the city must also have considerably exceeded its original limits, when it could furnish 8000 holders of full hides and as
I78.
Ill THE NON-BURGESSES AND BOOK I
many who held lesser portions, or sons of such holders. We are not acquainted with the superficial extent of the normal Roman farm; but it is not possible to estimate it as under twenty jug'era. l If we reckon as a minimum 10,000 full hides, this would imply a superficies of 190 square miles of arable land; and on this calculation, if we make a very moderate allowance for pasture, the space occupied by houses, and ground not capable of culture, the territory, at the period when this reform was carried out, must have had at least an extent of 420 square miles, probably an extent still more considerable. If we follow tradition, we must assume a number of 84,000 burgesses who were freeholders and capable of bearing arms; for such, we are told, were the numbers ascertained by Servius at the first census. A glance at the map, however, shows that this number must be fabulous ; it is not even a genuine tradition, but a conjectural calculation, by which the
16,800 capable of bearing arms who constituted the nonnal strength of the infantry appeared to yield, on an average of
five persons to each family, the number of 84,000 burgesses, and this number was confounded with that of those capable of bearing arms. But even according to the more moderate estimates laid down above, with a territory of some 16,000 hides containing a population
1 Even about 480, allotments of land of seven jugera appeared to those that received them small (Val. Max. iii. 3, 5; Colum. i. praef. 14; i. 3, 1r ; Plin. H. N. xviii. 3, 18 : fourteen jugera, Victor, 33 ; Plutarch, Apopltllt. Reg. :1 Imp. p. 235 Dtlbner, in accordance with which Plutarch. Crass. 2, is to be corrected).
A comparison of the Germanic proportions gives the same result. The jugerum and the merger: [nearly i of an English acre], both originally measures rather of labour than of surface, may be looked upon as originally identical. As the German hide consisted ordinarily of 30, but not unfrequently of 20 or 40 margen, and the homestead frequently, at least
among the Anglo-Saxons, amounted to a tenth of the hide, it will appear, taking into account the diversity of climate and the size of the Roman keredium of a jugera, that the hypothesis of a Roman hide of 20 jugem is not unsuitable to the circumstances of the case. It is to be regretted certainly that on this very point tradition leaves us without precise informa tion.
can. v1 THE REFORMED CONSTITUTION I23
of nearly 20,000 capable of bearing arms and at least three times that number of women, children, and old men, persons who had no land, and slaves, it is necessary to assume not merely that the region between the Tiber and Anio had been acquired, but that the Alban territory had also been conquered, before the Servian constitution was established; a result with which tradition agrees. What were the numerical proportions of patricians and plebeianl originally in the army, cannot be ascertained.
Upon the whole it is plain that this Servian institution did not originate in a conflict between the orders. On the contrary, it bears the stamp of a reforming legislator like the constitutions of Lycurgus, Solon, and Zaleucus ; and it has evidently been produced under Greek influence. Par ticular analogies may be deceptive, such as the coincidence noticed by the ancients that in Corinth also widows and orphans were charged with the provision of horses for the
. cavalry; but the adoption of the armour and arrangements of the Greek hoplite system was certainly no accidental coincidence. Now if we consider the fact that it was in the second century of the city that the Greek states in Lower Italy advanced from the pure clan-constitution to a modified one, which placed the preponderance in the hands of the landholders, we shall recognize in that move ment the impulse which called forth in Rome the Servian reform—a change of constitution resting in the main on the same fundamental idea, and only directed into a somewhat different course by the strictly monarchical form of the Roman state. 1
1 The analogy also between the so-called Servian constitution and the treatment of the Attic metoeci deserves to be particularly noticed. Athens. like Rome, opened her gates at a comparatively early period to the metoeci, and afterwards summoned them also to share the burdens of the state. We cannot suppose that any direct connection existed in this instanm between Athens and Rome; but the coincidence serves all the more distinctly to show how the same causes—nrban centralization and urban development—everywhere and of necessity produce similar effects.
of the Roman tc'ritory.
lacked feuds among themselves and with their neighbours; as the country flourished and civilization advanced, feuds must have become gradually changed into war and raids for pillage into conquest, and political powers must have begun to assume shape. No Italian Homer, however, has preserved for us a picture of these earliest frays and plundering excursions, in which the character of nations is moulded and expressed like the mind of the man in the sports and enterprises of the boy; nor does historical tradition enable us to form a judgment, with even approximate accuracy, as to the outward development of power and the comparative resources of the several Latin cantons. It is only in the case of Rome, at the utmost, that we can trace in some degree the extension of its power and of its territory. The earliest demonstrable boundaries of the united Roman community have been already stated (p. 58); in the landward direction they were on an average just about five miles distant from the capital of the canton, and it was only toward the coast that
they extended as far as the mouth of the Tiber (Ostia), at a distance of somewhat more than fourteen miles from Rome. "The new city,” says Strabo, in his description of the primitive Rome, "was surrounded by larger and
“
CHAPTER VII
THE HEGEMONY OF ROME IN LATIUI
n4
HEGEMONY OF ROME IN LATIUM BOOK 1
Iktension THE brave and impassioned Italian race doubtless never
CHAP. vn HEGEMONY OF ROME IN LATIUM
r25
smaller tribes, some of whom dwelt in independent villages and were not subordinate to any national union. ” It seems to have been at the expense of these neighbours of kindred lineage in the first instance that the earliest exten sions of the Roman territory took place.
The Latin communities situated on the upper Tiber and between the Tiber and the Anio-Antemnae, Crustumerium, F iculnea, Medullia, Caenina, Corniculum, Cameria, Collatia, —were those which pressed most closely and sorely on Rome, and they appear to have forfeited their independence in very early times to the arms of the Romans. The only community that subsequently appears as independent in this district was Nomentum; which perhaps saved its freedom by alliance with Rome. The possession of Fidenae, the 12! : a’: pan! of the Etruscans on the left bank of the Tiber, was contested between the Latins and the Etruscans—in other words, between the Romans and Veientes-with varying results. The struggle with Gabii, which held the plain between the Anio and the Alban hills, was for a long period equally balanced: down to late times the Gabine dress was deemed synonymous with that of war, and Gabine ground the prototype of hostile soil. 1 By these conquests the Roman territory was probably extended
to about 190 square miles. Another very early achieve- ment of the Roman arms was preserved, although in a legendary dress, in the memory of posterity with greater vividness than those obsolete struggles: Alba, the ancient sacred metropolis of Latium, was conquered and destroyed by Roman troops. How the collision arose, and how it was decided, tradition does not tell : the battle of the three
1 The formulae of accursing for Gabii and Fidenae are quite as character istic (Macrob. Sat. iii. 9). It cannot, however, be proved ‘lid is ex tremely improbable that. as respects these towns, there was ill! actual historical accursing of the ground on which they were built, sud: as really took place at Veii, Carthage, and Fregellae. It may be conjeq'ured mthat old accursing formularies were applied to those two hated towno, and considered by later antiquaries as historical documents.
Torrltq" jag. ‘
Alba,
Treatment of the earliest ac quisitions.
I26 HEGEMONY OF ROME IN LATIUM 300! I
Roman with the three Alban brothers born at one birth is nothing but a personification of the struggle between two powerful and closely related cantons, of which the Roman at least was triune. We know nothing at all beyond the naked fact of the subjugation and destruction of Alba by Rome. 1
It is not improbable, although wholly a matter of con jecture, that, at the same period when Rome was establish ing herself on the Anio and on the Alban hills, Praeneste, which appears at a later date as mistress of eight neighbouring townships, Tibur, and others of the Latin communities were similarly occupied in enlarging their territory and laying the foundations of their subsequent far from inconsiderable power.
We feel the want of accurate information as to the legal character and legal effects of these early Latin conquests, still more than we miss the records of the wars in which they were won. Upon the whole it is not to be doubted that they were treated in accordance with the system of incorporation, out of which the tripartite community of Rome had arisen; excepting that the cantons who were compelled by arms to enter the combination did not, like the primitive three, preserve some sort of relative inde
1 But there seems to be no good ground for the doubt recently expressed in a quarter deserving of respect as to the destruction of Alba having really been the act of Rome. It is true, indeed, that the account of the destruction of Alba is in its details a series of improbabilities and lmpossibilities ; but that is true of every historical fact inwoven into legend. To the question as to the attitude of the rest of Latium towards the struggle between Rome and Alba, we are unable to give an answer; but the question itself rests on a false assumption, for it is not proved that the constitution of the Latin league absolutely prohibited a separate war between two Latin communities (p. 51). Still less is the fact that a number of Alban families were received into the burgess-union of Rome inconsistent with the destruction of Alba by the Romans. Why may there not have been a Roman party in Alba just as there was in Capua? The circumstance, however, of Rome claiming to be in a religious and political
point of view the heir-at-law of Alba may be regarded as decisive of the matter ; for such a claim could not be based on the migration of individual clans to Rome, but could only be based, as it actually was, on the conquest of the town.
can. vrr HEGEMONY OF ROME IN LATIUM
n7
pendence as separate regions in the new united community, but became so entirely merged in the general whole as to be no longer traced (p. 108). However far the power of a Latin canton might extend, in the earliest times it tolerated no political centre except the proper capital; and still less founded independent settlements, such as the Phoenicians and the Greeks established, thereby creating in their colonies clients for the time being and future rivals to the
mother city. In this respect, the treatment which Ostia
from Rome deserves special notice: the Romans could not and did not wish to prevent the rise de far-t0 of a town at that spot, but they allowed the place no political independence, and accordingly they did not
bestow on those who settled there any local burgess-rights, but merely allowed them to retain, if they already possessed, the general burgess-rights of Rome. 1 This principle also determined the fate of the weaker cantons, which by force of arms or by voluntary submission became subject to a
experienced
The stronghold of the canton was razed, its domain was added to the domain of the conquerors, and a new home was instituted for the inhabitants as well as for their gods in the capital of the victorious canton. . This must not be understood absolutely to imply a formal
stronger.
of the conquered inhabitants to the new capital, such as was the rule at the founding of cities in the East. The towns of Latium at this time can have been little more than the strongholds and weekly markets of the husbandmen: it was sufficient in general that the market and the seat of justice should be transferred to the new That even the temples often remained at the old
1 Hence was developed the conception, in political law, of the maritime colony or colony of burgesses (colonia ci'uium Romanarum), that is, of a community separate in fact, but not independent or possessing a will of its own in law ; a community which merged in the capital as the peculiar» of the son merged in the property of the father, and which as a standing garrison was exempt from serving in the legion.
transportation
capital.
I28 HEGEMONY OF ROME IN LATIUM BOOK I
spot is shown in the instances of Alba and of Caenina, towns which must still after their destruction have retained some semblance of existence in connection with religion. Even where the strength of the place that was razed rendered it really necessary to remove the inhabitants, they would be frequently settled, with a view to the cultivation of the soil, in the open hamlets of their old domain. That the conquered, however, were not unfrequently compelled either as a whole or in part to settle in their new capital, is proved, more satisfactorily than all the several stories from the legendary period of Latium could prove the maxim of Roman state-law, that only he who had extended the boundaries of the territory was entitled to advance the wall of the city (the pamm'um). Of course the conquered, whether transferred or not, were ordinarily compelled to occupy the legal position of clients;1 but particular individuals or clans occasionally had burgess rights or, in other words, the patriciate conferred upon them. In the time of the empire there were still recognized Alban clans which were introduced among the burgesses of Rome after the fall of their native seat amongst these were the Julii, Servilii, Quinctilii, Cloelii, Geganii, Curiatii,
Metilii: the memory of their descent was preserved their Alban family shrines, among which the sanctuary of the gens of the Julii at Bovillae again rose under the empire into great repute.
This centralizing process, which several small com munities became absorbed in larger one, of course was far from being an idea specially Roman. Not only did
To this the enactment of the Twelve Tables undoubtedly has reference Nexft' maucipiique] forts‘ . ranatique idem iur esta, that is, in dealings of private law the " sound" and the "recovered" shall be on a footing of equality. The Latin allies cannot be here referred to, because their legal
position was defined by federal treaties, and the law of the Twelve Tables treated only of the law of Rome. The ranales were the Latini prirci rives Romarn', or in other words. the communities of Latium compelled by the Romans to enter the plebeiate.
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the development of Latium and of the Sabellian stocks hinge upon the distinction between national centralization and cantonal independence; the case was the same with the development of the Hellenes. Rome in Latium and Athens in Attica arose out of a like amalgamation of many cantons into one state; and the wise Thales suggested a similar fusion to the hard-pressed league of the Ionic cities as the only means of saving their nationality. But Rome adhered to this principle of unity with more consistency, earnestness, and success than any other Italian canton; and just as the prominent position of Athens in Hellas was the effect of her early centralization, so Rome was indebted for her greatness solely to the same system, in her case far more energetically applied
While the conquests of Rome in Latium may be mainly regarded as direct extensions of her territory and people presenting the same general features, a further and special significance attached to the conquest of Alba. It was not merely the problematical size and presumed riches of Alba
that led tradition to assign a prominence so peculiar to its capture. Alba was regarded as the metropolis of the Latin Alba. confederacy, and had the right of presiding among the thirty communities that belonged to it. The destruction
of Alba, of course, no more dissolved the league itself than the destruction of Thebes dissolved the Boeotian con federacy ;1 but, in entire consistency with the strict applica tion of the fus privatum which was characteristic of the Latin laws of war, Rome now claimed the presidency of the league as the heir-at-law of Alba. What sort of crises, if any, preceded or followed the acknowledgment of this
1 The community of Bovillae appears even to have been formed out of part of the Alban domain, and to have been admitted in room of Alba among the autonomous Latin towns. Its Alban origin is attested by its having been the seat of worship for the Julian gens and by the name Alhmi Longani Bow'llenm (Orelli-Henzen, 119, 2252, 6019); its autonomy by Dionysiul. v. 61, and Cicero, pro Plancia, 9, 23.
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9
The hege mony of Rome over Latium.
Relation of Rome to Latium.
claim, we cannot tell. Upon the whole the hegemony of Rome over Latium appears to have been speedily and generally recognized, although particular communities, such as Labici and above all Gabii, may for a time have declined to own it. Even at that time Rome was probably a maritime power in contrast to the Latin “land,” a city in contrast to the Latin villages, and a single state in contrast to the Latin confederacy; even at that time it was only in conjunction with and by means of Rome that the Latins could defend their coasts against Carthaginians, Hellenes, and Etruscans, and maintain and extend their landward frontier in opposition to their restless neighbours of the Sabellian stock. Whether the accession to her material resources which Rome obtained by the subjugation of Alba was greater than the increase of her power obtained by the capture of Antemnae or Collatia, cannot be ascertained: it is quite possible that it was not by the conquest of Alba that Rome was first constituted the most powerful com munity in Latium; she may have been so long before; but she did gain in consequence of that event the presidency at the Latin festival, which became the basis of the future hegemony of the Roman community over the whole Latin confederacy. It is important to indicate as definitely as possible the nature of a relation so influential.
The form of the Roman hegemony over Latium was, in general, that of an alliance on equal terms between the Roman community on the one hand and the Latin confed eracy on the other, establishing a perpetual peace through out the whole domain and a perpetual league for offence and defence. “There shall be peace between the Romans and all communities of the Latins, as long as heaven and earth endure ; they shall not wage war with each other, nor call enemies into the land, nor grant passage to enemies: help shall be rendered by all in concert to any community assailed, and whatever is won in joint warfare shall be
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equally distributed. ” The stipulated equality of rights in trade and exchange, in commercial credit and in inheritance, tended, by the manifold relations of business intercourse to which it led, still further to interweave the interests of communities already connected by the ties of similar lan guage and manners, and in this way produced an effect somewhat similar to that of the abolition of customs-restric tions in our own day. Each community certainly retained in form its own law: down to the time of the Social war Latin law was not necessarily identical with Roman: we find, for example, that the enforcing of betrothal by action at law, which was abolished at an early period in Rome, continued to subsist in the Latin communities. But the simple and purely national development of Latin law, and the endeavour to maintain as far as possible uniformity of rights, led at length to the result, that the law of private relations was in matter and form substantially the same throughout all Latium. This uniformity of rights comes most distinctly into view in the rules laid down regarding the loss and recovery of freedom on the part of the in dividual burgess. According to an ancient and venerable maxim of law among the Latin stock no burgess could become a slave in the state wherein he had been free, or suffer the loss of his burgess-rights while he remained within it: if he was to be punished with the loss of freedom and of burgess-rights (which was the same thing), it was necessary that he should be expelled from the state and should enter on the condition of slavery among strangers. This maxim of law was now extended to the whole territory of the league; no member of any of the federal states might live as a slave within the bounds of the league. Applications of this principle are seen in the enactment embodied in the Twelve Tables, that the insolvent debtor, in the event of his creditor wishing to sell him, must be sold beyond the boundary of the Tiber, in other words,
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beyond the territory of the league; and in the clause of the second treaty between Rome and Carthage, that an ally of Rome who might be taken prisoner by the Cartha ginians should be free so soon as he entered a Roman seaport. Although there did not probably subsist a general intercommunion of marriage within the league, yet, as has been already remarked 50), intermarriage between the different communities frequently occurred. Each Latin could primarily exercise political rights only where he was enrolled as burgess but on the other hand was implied in an equality of private rights, that any Latin could take up his abode in any place within the Latin bounds; or, to use the phraseology of the present day, there existed, side by side with the special burgess rights of the individual communities, general right of settlement co-extensive with the confederacy; and, after the plebeian was acknowledged in Rome as burgess, this right became converted as regards Rome into full freedom of settlement. easy to understand how this should have turned materially to the advantage of the capital, which alone in Latium offered the means of urban inter course, urban acquisition, and urban enjoyments; and how the number of meloea' in Rome should have increased with remarkable rapidity, after the Latin land came to live in perpetual peace with Rome.
In constitution and administration the several com munities not only remained independent and sovereign, so far as the federal obligations did not interfere, but, what was of more importance, the league of the thirty communities as such retained its autonomy in contradistinc tion to Rome. When we are assured that the position of Alba towards the federal communities was position superior to that of Rome, and that on the fall of Alba these communities attained autonomy, this may well have
been the case, in so far as Alba was essentially member
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