Lastly, the
relations
of the non-Latin allied communities were subject, as a matter of course, to very various rules, just as each particular treaty of alliance had defined them.
The history of Rome; tr. with the sanction of the ... v.2. Mommsen, Theodor, 1817-1903
By these establishments the
dominion of Rome was extended over the interior of
Lower Italy, and over the whole Italian east coast from
the Ionian sea to the Celtic frontier.
Before we describe the political organization under which Maritime the Italy which was thus united was governed on the part rela001* of Rome, it remains that we should glance at the maritime
relations that subsisted in the fourth and fifth centuries. At
this period Syracuse and Carthage were the main competi tors for the dominion of the western waters. On the whole,
Constroc-
^^f* and roads.
2g«'
4o
STRUGGLE BETWEEN PYRRHUS book ii
notwithstanding the great temporary successes which 406-865. Dionysius (348-389), Agathocles (437-465), and Pyrrhus
(476-47 8) obtained at sea, Carthage had the preponderance, and Syracuse sank more and more into a naval power of the second rank. The maritime importance of Etruria was wholly gone 415); the hitherto Etruscan island of Corsica, did not quite pass into the possession, fell under the maritime supremacy, of the Carthaginians. Tarentum, which for time had played considerable part, had its power broken the Roman occupation. The brave Massiliots maintained their ground in their own waters; but they exercised no material influence over the course of events in those of Italy. The other maritime cities hardly came as yet into serious account-
Rome itself was not exempt from similar fate; its the Roman own waters were likewise commanded by foreign fleets. power. was indeed from the first maritime city, and in the
of its vigour never was so untrue to its ancient traditions as wholly to neglect its war marine or so foolish as to desire to be a mere continental power. Latium furnished the finest timber for ship-building, far surpassing the famed growths of Lower Italy; and the very docks constantly maintained in Rome are enough to show that the Romans never abandoned the idea of possessing fleet of their own. During the perilous crises, however, which the expulsion of the kings, the internal disturbances in the Romano-Latin confederacy, and the unhappy wars with the Etruscans and Celts brought upon Rome, the Roman? could take but little interest in the state of matters in the Mediterranean; and, in consequence of the policy of Rome directing itself more and more decidedly to the subjugation of the Italian continent, the growth of its naval power was arrested. There hardly any mention of Latin vessels of war up to the end of the fourth century,
e. 850. except that the votive offering from the Veientine spoil was
278 27e!
Decline of
period
is
a
a
It
a
a
by
(i. a
if it
chap, Til AND ROME
41
sent to Delphi in a Roman vessel (360). The Antiates 891. indeed continued to prosecute their commerce with armed vessels and thus, as occasion offered, to practise the trade
of piracy also, and the "Tyrrhene corsair" Postumius, whom Timoleon captured about 415, may certainly have 889. been an Antiate; but the Antiates were scarcely to be reckoned among the naval powers of that period, and, had they been so, the fact must from the attitude of Antium towards Rome have been anything but an advantage to the latter. The extent to which the Roman naval power had declined about the year 400 is shown by the plundering of 850. the Latin coasts by a Greek, presumably a Sicilian, war fleet in 405, while at the same time Celtic hordes were 819. traversing and devastating the Latin land 43 In the following year (406), and beyond doubt under the 818. immediate impression produced these serious events,
the Roman community and the Phoenicians of Carthage, acting respectively for themselves and for their dependent allies, concluded treaty of commerce and navigation — the oldest Roman document of which the text has reached us, although only in Greek translation. 1 In that treaty the Romans had to come under obligation not to navigate the Libyan coast to the west of the Fair Promontory (Cape Bon) excepting cases of necessity. On the other hand they obtained the privilege of freely trading, like the natives, in Sicily, so far as was Carthaginian and in Africa and Sardinia they obtained at least the right to dispose of their merchandise at price fixed with the concurrence of the Carthaginian officials and guaranteed by the Carthaginian community. The privilege of free trading seems to have been granted to the Carthaginians at least in Rome, perhaps in all Latium only they bound them-
The grounds for assigning the document given in Polyblns (ill. a3)
not to 345, bat to 406, are set forth in my Rim. Chronologic, 320 609. US. [translated in the Appendix to this volume
p.
/.
1
1;
it a
;
(i. a).
in
a
a
by
283. 268.
and, on the coast of the Adriatic, Sena Gallica and Castrum Novum about 471 12), and Ariminum 486 39); to which falls to be added the occupation of Brundisium, which took place immediately after the close of the Pyrrhic
4S
STRUGGLE BETWEEN PYRRHUS book ii
selves neither to do violence to the subject Latin communi ties 452), nor, they should set foot as enemies on Latin soil, to take up their quarters for night on shore— in other words, not to extend their piratical inroads into the interior —nor to construct any fortresses in the Latin land.
We may probably assign to the same period the already mentioned 12) treaty between Rome and Tarentum, respecting the date of which we are only told that was
282. concluded considerable time before 472. By the Romans bound themselves — for what concessions on the part of Tarentum not stated—not to navigate the waters to the east of the Lacinian promontory stipulation which they were thus wholly excluded from the eastern basin of the Mediterranean.
These were disasters no less than the defeat on the Allia, and tjje Roman senate seems to have felt them as such and coast. to have made use of the favourable turn, which the Italian
Roman fortifica- uon of the
relations assumed soon after the conclusion of the humiliat ing treaties with Carthage and Tarentum, with all energy to improve its depressed maritime position. The most import ant of the coast towns were furnished with Roman colonies: Pyrgi the seaport of Caere, the colonization of which probably falls within this period along the west coast, Antium in 415 462), Tarracina in 425 462), the island
889. 829.
818. of Pontia in 441 476), so that, as Ardea and Circe had
previously received colonists, all the Latin seaports of con sequence in the territory of the Rutuli and Volsci had now become Latin or burgess colonies further, in the territory
295. of the Aurunci, Minturnae and Sinuessa in 459 492); 278. in that of the Lucanians, Paestum and Cosa in 481 (p. 39);
(p.
in (p.
(i.
;
;
(i. (i.
if
ii
it it
(i.
;a a
by
a is
(p.
(i.
crap, VII AND ROME
43
war. In the greater part of these places—the burgess or maritime colonies 1—the young men wer<? exempted from serving in the legions and destined solely for the watching of the coasts. The well-judged preference given at the same time to the Greeks of Lower Italy over their Sabellian neighbours, particularly to the considerable communities of Neapolis, Rhegium, Locri, Thurii, and Heraclea, and their similar exemption under the like conditions from furnishing contingents to the land army, completed the network drawn by Rome around the coasts of Italy.
But with a statesmanlike sagacity, from which the sue- The ceeding generations might have drawn a lesson, the leading ? £mav men of the Roman commonwealth perceived that all these
coast fortifications and coast garrisons could not but prove inadequate, unless the war marine of the state were again placed on a footing that should command respect. Some
sort of nucleus for this purpose was already furnished on
the subjugation of Antium (416) by the serviceable war- 388. galleys which were carried off to the Roman docks; but
the enactment at the same time, that the Antiates should abstain from all maritime traffic,' is a very clear and dis tinct indication how weak the Romans then felt themselves
at sea, and how completely their maritime policy was still summed up in the occupation of places on the coast.
1 These were Pyrgi, Ostia, Antium, Tarracina, Minturnae, Sinuessa Sena Gallica, and Castrum Novum.
* This statement is quite as distinct (Liv. viii. 14 ; inttrdictum mari Antiati populo est) as it is intrinsically credible ; for Antium was inhabited
not merely by colonists, but also by its former citizens who had been nursed
in enmity to Rome 462). This view is, no doubt, inconsistent with the Greek accounts, which assert that Alexander the Great 431) and 823. Demetrius Poliorcetes 471) lodged complaints at Rome regarding 283. Antiate pirates. The former statement of the same stamp, and perhaps
from the same source, with that regarding the Roman embassy to Babylon (p. 1). It seems more likely that Demetrius Poliorcetes may have tried by edict to put down piracy in the Tyrrhene sea which he had never set eyes upon, and not at all inconceivable that the Antiates may have even as Roman citizens, in defiance of the prohibition, continued for time their old trade in an underhand fashion much dependence must not. how ever, be placed even on the second story.
S
:
is
a
it is
(i. (t
(t
44
STRUGGLE BETWEEN PYRRHUS book ii
Thereafter, when the Greek cities of southern Italy, Neapolis S26. leading the way in 428, were admitted to the clientship of
Rome, the war-vessels, which each of these cities bound itself to furnish as a war contribution under the alliance to the Romans, formed at least a renewed nucleus for a Roman
•11. fleet. In 443, moreover, two fleet-masters (duoviri navales) were nominated in consequence of a resolution of the
burgesses specially passed to that effect, and this Roman naval force co-operated in the Samnite war at the siege of Nuceria 480). Perhaps even the remarkable mission of Roman fleet of twenty-five sail to found " colony
Corsica, which Theophrastus mentions his History of 808. Plants" written about 446, belongs to this period. But
how little was immediately accomplished with all this pre
paration, shown the renewed treaty with Carthage in •M. 848. 448. While the stipulations of the treaty of 406 relating to Italy and Sicily 41) remained unchanged, the Romans
were now prohibited not only from the navigation of the eastern waters, but also from that of the Atlantic Ocean which was previously permitted, as well as debarred from holding commercial intercourse with the subjects of Carthage in Sardinia and Africa, and also, all probability, from effecting settlement in Corsica so that only Carthaginian Sicily and Carthage itself remained open to their traffic. We recognize here the jealousy of the dominant maritime power, gradually increasing with the extension of the Roman dominion along the coasts. Carthage compelled the
Romans to acquiesce in her prohibitive system, to submit to be excluded from the seats of production in the west and
According to Servius (in Aen. iv. 628) was stipulated in the Romano-Carthaginian treaties, that no Roman should set foot on (or rather occupy) Carthaginian, and no Carthaginian on Roman, soil, but Corsica was to remain in a neutral position between them (ut tuque Romani ad Mora Carthaginicnsium accederent tuque Carthaginienses ad litora Roma- norum Cr-sica esset media inter Romano! et Curlhaginienses). This appears to refer to our present period, and the colonization of Corsica seems to have been prevented by this very treaty.
1
a
it
in
a
a
is
(i.
;i
in
(p.
by
in
hap, vii AND ROME
45
east (connected with which exclusion is the story of a public reward bestowed on the Phoenician mariner who at the sacrifice of his own ship decoyed a Roman vessel, steering after him into the Atlantic Ocean, to perish on a sand-bank), and to restrict their navigation under the treaty to the narrow space of the western Mediterranean —and all this for the mere purpose of averting pillage from their coasts and of securing their ancient and important trading connec tion with Sicily. The Romans were obliged to yield to these terms ; but they did not desist from their efforts to rescue their marine from its condition of impotence.
A comprehensive measure with that view was the Quaestors institution of four quaestors of the fleet (guaestorcs dassici) ° *** in 487 : of whom the first was stationed at Ostia the port 267.
of Rome ; the second, stationed at Cales then the capital
of Roman Campania, had to superintend the ports of Campania and Magna Graecia; the third, stationed at Ariminum, superintended the ports on the other side of
the Apennines ; the district assigned to the fourth is not
known. These new standing officials were intended to
exercise not the sole, but a conjoint, guardianship of the
coasts, and to form a war marine for their protection. The Variance
objects of the Roman senate —to recover their independence
by sea, to cut off the maritime communications of Tarentum, Carthage. to close the Adriatic against fleets coming from Epirus, and
to emancipate themselves from Carthaginian supremacy —
were very obvious. Their already explained relations
with Carthage during the last Italian war discover traces
of such views. King Pyrrhus indeed compelled the two
cities once more — it was for the last time — to conclude an offensive alliance ; but the lukewarmness and faithlessness of that alliance, the attempts of the Carthaginians to establish themselves in Rhegium and Tarentum, and the immediate occupation of Brundisium by the Romans after the termination of the war, show
great
Ro^^
Rome and
n^aj powen.
46
UNION OF ITALY book h
clearly how much their respective interests already came into collision.
Rome very naturally sought to find support against Carthage from the Hellenic maritime states. Her old and close relations of amity with Massilia continued uninter rupted. The votive offering sent by Rome to Delphi, after the conquest of Veii, was preserved there in the treasury
of the Massiliots. After the capture of Rome by the Celts there was a collection in Massilia for the sufferers by the fire, in which the city chest took the lead ; in return the Roman senate granted commercial advantages to the Massiliot merchants, and, at the celebration of the games in the Forum assigned a position of honour (Graecostasis) to the Massiliots by the side of the platform for the senators. To the same category belong the treaties of commerce
806. and amity concluded by the Romans about 448 with Rhodes and not long after with Apollonia, a considerable mercantile town on the Epirot coast, and especially the closer relation, so fraught with danger for Carthage, which immediately after the end of the Pyrrhic war sprang up between Rome and Syracuse (p. 38).
United '•
850.
While the Roman power by sea was thus very far from keeping pace with the immense development of their power by land, and the war marine belonging to the Romans in particular was by no means such as from the geographical and commercial position of the city it ought to have been, yet it began gradually to emerge out of the complete nullity to which it had been reduced about the year 400 ; and, considering the great resources of Italy, the Phoenicians might well follow its efforts with anxious eyes.
The crisis in reference to the supremacy of the Italian waters was approaching ; by land the contest was decided. For the first time Italy was united into one state under the sovereignty of the Roman community. What political prerogatives the Roman community on this occasion with
chap. Vil UNION OF ITALY
47
drew from all the other Italian communities and took into its own sole keeping, or in other words, what conception in state-law is to be associated with this sovereignty of Rome, we are nowhere expressly informed, and—a signifi cant circumstance, indicating prudent calculation —there does not even exist any generally current expression for that conception. 1 The only privileges that demonstrably belonged to it were the rights of making war, of concluding treaties, and of coining money. No Italian community could declare war against any foreign state, or even negotiate with or coin money for circulation. On the other hand every declaration of war made by the Roman people and every state -treaty resolved upon by were binding in law on all the other Italian communities, and
the silver money of Rome was legally current throughout all Italy. It probable that the formulated prerogatives of the leading community extended no further. But to these there were necessarily attached rights of sovereignty that practically went far beyond them.
The relations, which the Italians sustained to the leading The full community, exhibited in detail great inequalities. In this K°ma? point 01 view, in addition to the full burgesses of Rome,
there were three different classes of subjects to be dis tinguished. The full franchise itself, in the first place, was extended as far as was possible, without wholly abandoning
the idea of an urban commonwealth as applied to the Roman commune. The old burgess-domain had hitherto been enlarged chiefly by individual assignation in such a way that southern Etruria as far as towards Caere and
The clause, by which dependent people binds" itself to uphold in a friendly manner the sovereignty of that of Rome (maiesiatem populi Romani comiler conservare), certainly the technical appellation of that mildest form of subjection, but probably did not come into use till a considerably later period (Cic. pro Balbo, 16, 35). The appellation of clientship derived from private law, aptly as in its very indefiniteness denotes the relation (Dig. xlix. 15, 7, 1), was scarcely applied to officially in earlier times.
f
it it
it
a is
1
'
is
it,
it
48
UNION OF ITALY book ii
Falerii 433), the districts taken from the Hernici on the Sacco and on the Anio 485) the largest part of the Sabine country 492) and large tracts of the territory formerly Volscian, especially the Pomptine plain 463, 464) were converted into land for Roman farmers, and new burgess- districts were instituted mostly for their inhabitants. The same course had even already been taken with the
Falernian district on the Volturnus ceded by Capua
All these burgesses domiciled outside of Rome were with out commonwealth and an administration of their own on the assigned territory there arose at the most market- villages (fora et conciliabuld). In position not greatly different were placed the burgesses sent out to the so-called maritime colonies mentioned above, who were likewise left in possession of the full burgess-rights of Rome, and whose self-administration was of little moment. Towards the close of this period the Roman community appears to have begun to grant full burgess-rights to the adjoining communities of passive burgesses who were of like or closely kindred nationality; this was probably done first
for Tusculum,1 and so, presumably, also for the other
communities of passive burgesses in Latium proper, then l«8. at the end of this period (486) was extended to the Sabine towns, which doubtless were even then essentially Latinized and had given sufficient proof of their fidelity in the last severe war. These towns retained the restricted self-
administration, which under their earlier legal position belonged to them, even after their admission into the Roman burgess-union was they more than the maritime colonies that furnished the model for the special common wealths subsisting within the body of Roman full burgesses
That Tusculum as was the first to obtain passive burgess-rights 448) was also the first to exchange these for the rights of full burgesses,
probable in itself and presumably in the latter and not in the former
463).
respect that the town named by Cicero (pro Mur. tiUufuisiimum.
19) municifium
8,
is (i.
1
is
it
; it
it is
a
a
(i. ;
(i.
(i.
(i.
(i.
CHAP, vil UNION OF ITALY
49
and so, in the course of time, for the Roman municipal organization. Accordingly the range of the full Roman burgesses must at the end of this epoch have extended northward as far as the vicinity of Caere, eastward as far as the Apennines, and southward as far as Tarracina; although in this case indeed we cannot speak of boundary in a strict sense, partly because a number of federal towns with Latin rights, such as Tibur, Praeneste, Signia, Norba, Circeii, were found within these bounds, partly because beyond them the inhabitants of Minturnae, Sinuessa, of the Falernian territory, of the town Sena Gallica and some other townships, likewise possessed the full franchise, and families of Roman farmers were presumably to be even now found scattered throughout Italy, either isolated or united in villages.
Among the subject communities the passive burgesses Subject {fives sine suffragio), apart from the privilege of electing and tieJa being elected, stood on an equality of rights and duties
with the full burgesses. Their legal position was regulated
by the decrees of the Roman comitia and the rules issued
for them by the Roman praetor, which, however, were doubtless based essentially on the previous arrangements. Justice was administered for them by the Roman
or his deputies (pratfecti) annually sent to the individual communities. Those of them in a better position, such as
the city of Capua 463), retained self-administration and
along with the continued use of the native language, and
had officials of their own who took charge of the levy and the census. The communities of inferior rights such as Caere
433) were deprived even of self-administration, and this was doubtless the most oppressive among the different forms of subjection. However, as was above remarked, there already apparent at the close of this period an effort to incorporate these communities, at least so far as they were dc facto Latinized among the full burgesses.
VOL. 11
36
praetor
is
(i.
it
(i.
So Latins.
UNION OF ITALY book ii
Among the subject communities the most privileged and most important class was that of the Latin towns, which obtained accessions equally numerous and important in the autonomous communities founded by Rome within and even beyond Italy—the Latin colonies, as they were called — and was always increasing in consequence of new settlements of the same nature. These new urban com munities of Roman origin, but with Latin rights, became more and more the real buttresses of the Roman rule over Italy. These Latins, however, were by no means those with whom the battles of the lake Regillus and Trifanum had been fought They were not those old members of the Alban league, who reckoned themselves originally equal to, if not better than, the community of Rome, and who felt the dominion of Rome to be an oppressive yoke, as the fearfully rigorous measures of security taken against Praeneste at the beginning of the war with Pyrrhus, and the collisions that evidently long continued to occur with the Praenestines in particular, show. This old Latium had essentially either perished or become merged in Rome, and it now numbered but few communities politically self- subsisting, and these, with the exception of Tibur and
Praeneste, throughout insignificant The Latium of the later times of the republic, on the contrary, consisted almost exclusively of communities, which from the be ginning had honoured Rome as their capital and parent city ; which, settled amidst regions of alien language and of alien habits, were attached to Rome by community of language, of law, and of manners ; which, as the petty tyrants of the surrounding districts, were obliged doubtless to lean on Rome for their very existence, like advanced posts leaning upon the main army; and which, in fine, in consequence of the increasing material advantages of Roman citizenship, were ever deriving very considerable benefit from their equality of rights with the Romans,
CHAP. Vtl UNION OF ITALY
51
limited though it was. A portion of the Roman domain, for instance, was usually assigned to them for their separate use, and participation in the state leases and contracts was open to them as to the Roman burgess. Certainly in their case also the consequences of the self-subsistence granted to them did not wholly fail to appear. Venusian inscrip tions of the time of the Roman republic, and Beneventane inscriptions recently brought to light,1 show that Venusia as well as Rome had its plebs and its tribunes of the people, and that the chief magistrates of Beneventum bore the title of consul at least about the time of the Hannibalic war. Both communities are among the most recent of the
Latin colonies with older rights : we perceive what pre tensions were stirring in them about the middle of the fifth century. These so-called Latins, issuing from the Roman burgess -body and feeling themselves in every respect on a level with already began to view with displeasure their subordinate federal rights and to strive after full equaliza tion. Accordingly the senate had exerted itself to curtail these Latin communities —however important they were for Rome—as far as possible, in their rights and privileges, and to convert their position from that of allies to that of subjects, so far as this could be done without removing the wall of partition between them and the non-Latin com munities of Italy. We have already described the abolition of the league of the Latin communities itself as well as of their former complete equality of rights, and the loss of the most important political privileges belonging to them. On the complete subjugation of Italy further step was taken, and a beginning was made towards the restriction of the personal rights — that had not hitherto been touched — of the individual Latin, especially the important right of freedom of settlement In the case of Ariminum founded
V. Cervio A. ami dcdicavit and Iunonti Qttiritti mtrm. C FtiaUus L. emul itiitmiU
/, /.
it,
1
a
j* UNION OF ITALY book ii
M&. in 486 and of all the autonomous communities constituted afterwards, the advantage enjoyed by them, as compared with other subjects, was restricted to their equalization with burgesses of the Roman community so far as regarded private rights—those of traffic and barter as well as those of inheritance. 1 Presumably about the same time the full right of free migration allowed to the Latin communities hitherto established —the title of every one of their burgesses to gain by transmigration to Rome full burgess-rights there —was, for the Latin colonies of later erection, restricted to those persons who had attained to the highest office of the community in their native home ; these alone were allowed to exchange their colonial burgess-rights for the Roman. This clearly shows the complete revolution in the position of Rome. So long as Rome was still but one among the many urban communities of Italy, although that one might be the first, admission even to the unrestricted Roman franchise was universally regarded as a gain for the ad
1 According to the testimony of Cicero (pro Caa. 35) Sulla gave to the Volaterrans the former ius of Ariminum, that is — adds the orator — the ius of the "twelve colonies" which had not the Roman civitas but had full commcrcium with the Romans. Few things have been so much discussed as the question to what places this ius of the twelve towns refers ; and yet the answer is not far to seek. There were in Italy and Cisalpine Gaul — laying aside some places that soon disappeared again —thirty-four Latin colonies established in all. The twelve most recent of these — Ariminum Beneventum, Firmum, Aesernia, Brundisium, Spoletium, Cremona, Placentia, Copia, Valentia, Bononia,and Aquileia —are those here referred to ; and because Ariminum was the oldest of these and the town for which this new organization was primarily established, partly perhaps also because it was the first Roman colony founded beyond Italy, the ius of these colonies rightly took its name from Ariminum. This at the same time demon strates the truth of the view—which already had on other grounds very high probability —that all the colonies established in Italy (in the wider sense of the term) after the founding of Aquileia belonged to the class of burgess-colonies.
We cannot fully determine the extent to which the curtailment of the rights of the more recent Latin towns was carried, as compared with the earlier. If intermarriage, as is not improbable but is in fact anything but definitely established ( i. 132 ; Diodor. p. 590, 62, fr. Vat. p. 130, Din J. ), formed a constituent element of the original federal equality of rights, it was, at any rate, no longer conceded to the Latin colonies of more recent origin.
chap, yii UNION OF ITALY 53 ***-
mhting community, and the acquisition of that franchise by non-burgesses was facilitated in every way, and was in fact often imposed on them as a punishment. But after the Roman community became sole sovereign and all the others were its servants, the state of matters changed. The Roman community began jealously to guard its fran chise, and accordingly put an end in the first instance to the old full liberty of migration; although the statesmen of that period were wise enough still to keep admission to the Roman franchise legally open at least to the men of eminence and of capacity in the highest class of subject communities. The Latins were thus made to feel that Rome, after having subjugated Italy mainly by their aid, had now no longer need of them as before.
Lastly, the relations of the non-Latin allied communities were subject, as a matter of course, to very various rules, just as each particular treaty of alliance had defined them. Several of these perpetual alliances, such as that with the Hernican communities 445), passed over to footing of complete equalization with the Latin. Others, in which this was not the case, such as those with Neapolis 469), Nola 47 and Heraclea 31), granted rights com paratively comprehensive while others, such as the Tarentine and Samnite treaties, may have approximated to despotism.
Non-Latin munitieg,
As general rule, may be taken for granted that not Dissolution only the Latin and Hernican national confederations —as °fnatlonal to which the fact expressly stated —but all such confede
rations subsisting in Italy, and the Samnite and Lucanian
leagues in particular, were legally dissolved or at any rate
reduced to insignificance, and that in general no Italian community was allowed the right of acquiring property or
of intermarriage, or even the right of joint consultation and resolution, with any other. Further, provision must have Fumlshlnf been made, under different forms, for placing the military L^'"1*
is
it
a
(i. 5),
;
(i. (p.
a (L
System of govern-
54
UNION OF ITALY book n
and financial resources of all the Italian communities at the disposal of the leading community. Although the burgess militia " on the one hand, and the contingents of the " Latin name on the other, were still regarded as the main and integral constituents of the Roman army, and in that way
its national character was on the whole preserved, the Roman cives sine suffragio were called forth to join its ranks, and not only so, but beyond doubt the non-Latin federate communities also were either bound to furnish ships of war, as was the case with the Greek cities, or were placed on the roll of contingent-furnishing Italians (formula togatorum), as must have been ordained at once or gradually in the case of the Apulians, Sabellians, and Etruscans. In general this contingent, like that of the Latin communities, appears to have had its numbers definitely fixed, although, in case of necessity, the leading community was not
from making a larger requisition. This at the same time involved an indirect taxation, as every community was bound itself to equip and to pay its own contingent Accordingly it was not without design that the supply of the most costly requisites for war devolved chiefly on the Latin, or non-Latin federate communities; that the war marine was for the most part kept up by the Greek cities ; and that in the cavalry service the allies, at least subsequently, were called upon to furnish a proportion thrice as numerous as the Roman burgesses, while in the infantry the old principle, that the contingent of the allies should not be more numerous than the burgess army, still remained in force for a long time at least as the rule.
The system, on which this fabric was constructed and kept together, can no longer be ascertained in detail from the few notices that have reached us. Even the numerical proportions of the three classes of subjects relatively to each other and to the full burgesses, can no longer be
precluded
chap, vii UNION OF ITALY
55
determined even approximately ; * and in like manner the geographical distribution of the several categories over Italy is but imperfectly known. The leading ideas on which the structure was based, on the other hand, are so obvious that it is scarcely necessary specially to set them forth. First of all, as we have already said, the immediate circle of the ruling community was extended—partly by the settlement of full burgesses, partly by the conferring of passive burgess -rights — as far as was possible without completely decentralizing the Roman community, which
1 It is to be regretted that we are unable to give satisfactory information
as to the proportional numbers. We may estimate the number of Roman burgesses capable of bearing arms in the later regal period as about 20,000 123). Now from the fall of Alba to the conquest of Veii the immediate territory of Rome received no material extension in perfect accordance with which we find that from the first institution of the twenty-
one tribes about 259 360), which involved no, or at any rate no con- 495. siderable, extension of the Roman bounds, no new tribes were instituted
till 367. However abundant allowance we make for increase by the 387. excess of births over deaths, by immigration, and by manumissions,
absolutely impossible to reconcile with the narrow limits of a territory of hardly 650 square miles the traditional numbers of the census, according
to which the number of Roman burgesses capable of bearing arms in the second half of the third century varied between 104,000 and 150,000, and
362, regarding which a special statement extant, amounted to 152,573- 392. These numbers must rather stand on a parallel with the 84,700 burgesses
of the Servian census and in general the whole earlier census-lists, carried
back to the four lustres of Servius Tullius and furnished with copious numbers, must belong to the class of those apparently documentary tradi
tions which delight in, and betray themselves by the very fact of, such numerical details.
It was only with the second half of the fourth century that the large extensions of territory, which must have suddenly and considerably augmented the burgess roll, began. It reported on trustworthy authority and intrinsically credible, that about 416 the Roman burgesses 838. numbered 165,000; which very well agrees with the statement that ten
years previously, when the whole militia was called out against Latium and the Gauls, the first levy amounted to ten legions, that is, to 50,000 men. Subsequently to the great extensions of territory in Etruria, Latium, and Campania, in the fifth century the effective burgesses numbered, on an average, 250,000 immediately before the first Punic war, 280,000 to 290,000. These numbers are certain enough, but they are not quite available historically for another reason, namely, that in them probably the Roman full burgesses and the "burgesses without vote" not serving, like the Campanians, in legions of their own, —such, e. g. , as the Caerites, — are included together in the reckoning, while the latter must at any rate. defacto be counted among the subjects {Rom. Forsch. ii, 396).
;
;
is
is
in
is
it is
(i.
;
(i.
Division and classi fication
of the subjects.
was an urban one and was intended to remain so. When the system of incorporation was extended up to and perhaps even beyond its natural limits, the communities that were subsequently added had to submit to a position of subjection ; for a pure hegemony as a permanent relation was intrinsically impossible. Thus not through any arbitrary monopolizing of sovereignty, but through the inevitable force of circumstances, by the side of the class of ruling burgesses a second class of subjects took its place. It was one of the primary expedients of Roman rule to subdivide the governed by breaking up the Italian con federacies and instituting as large a number as possible of comparatively small communities, and to graduate the pressure of that rule according to the different categories of subjects. As Cato in the government of his household took care that the slaves should not be on too good terms with one another, and designedly fomented variances and factions among them, so the Roman community acted on a great scale. The expedient was not generous, but it was effectual.
It was but a wider application of the same expedient, when in each dependent community the constitution was remodelled after the Roman pattern and a government of the wealthy and respectable families was installed, which was naturally more or less keenly opposed to the multitude and was induced by its material interests and by its wish for local power to lean on Roman support. The most remarkable instance of this sort is furnished by the treatment of Capua, which appears to have been from the first treated with suspicious precaution as the only Italian c». y that could come into possible rivalry with Rome. The Campanian nobility received a privileged jurisdiction, separate places of assembly, and in every respect a distinct ive position ; indeed they even obtained not inconsiderable pensions—sixteen hundred of them at 450 stateres (about
56
UNION OF ITALY BOOK II
Aristo cratic re modelling of the con stitutions of the Italian communi ties.
chap, vii UNION OF ITALY
57
annually —charged on the Campanian exchequer.
It was these Campanian equites, whose refusal to take part
in the great Latino-Campanian insurrection of 414 mainly 840. contributed to its failure, and whose brave swords decided
the day in favour of the Romans at Sentinum in 459 295,
489); whereas the Campanian infantry at Rhegium
was the first body of troops that in the war with Pyrrhus revolted from Rome 18). Another remarkable instance of the Roman practice of turning to account for their own interest the variances between the orders in the dependent communities favouring the aristocracy, furnished by the treatment which Volsinii met with in 489. 26ft. There, just as Rome, the old and new burgesses must have stood opposed to one another, and the latter must have attained legal means equality of political rights.
In consequence of this the old burgesses of Volsinii resorted
to the Roman senate with request for the restoration of their old constitution — step which the ruling party in the
city naturally viewed as high treason, and inflicted legal punishment accordingly on the petitioners. The Roman senate, however, took part with the old burgesses, and, when the city showed no disposition to submit, not only destroyed by military violence the communal constitution
of Volsinii which was In recognized operation, but also,
razing the old capital of Etruria, exhibited to the Italians fearfully palpable proof of the mastery of Rome.
But the Roman senate had the wisdom not to overlook Modera- the fact, that the only means of giving permanence to ~vem- despotism moderation on the part of the despots. On menu that account there was left with, or conferred on, the
£30)
communities an autonomy, which included shadow of independence, special share in the military and political successes of Rome, and above all free communal constitution —so far as the Italian confederacy extended, there existed no community of Helots. On that account
dependent
a
a
a
a
by
(p.
is
aaby is
by
in
(i.
Inter mediate function aries.
also Rome from the very first, with a clear-sightedness and magnanimity perhaps unparalleled in history, waived the most dangerous of all the rights of government, the right of taxing her subjects. At the most tribute was perhaps imposed on the dependent Celtic cantons : so far as the Italian confederacy extended, there was no tributary com munity. On that account, lastly, while the duty of bearing arms was partially devolved on the subjects, the ruling burgesses were by no means exempt from it ; it is probable that the latter were proportionally far more numerous than the body of the allies ; and in that body, again, probably the Latins as a whole were liable to far greater demands upon them than the non-Latin allied communities. There was thus a certain reasonableness in the appro priation by which Rome ranked first, and the Latins next to her, in the distribution of the spoil acquired in war.
The central administration at Rome solved the difficult problem of preserving its supervision and control over the mass of the Italian communities liable to furnish contin gents, partly by means of the four Italian quaestorships, partly by the extension of the Roman censorship over the
whole of the dependent communities. The quaestors of the fleet (p. 45), along with their more immediate duty, had to raise the revenues from the newly acquired domains and to control the contingents of the new allies ; they were the first Roman functionaries to whom a residence and district out of Rome were assigned by law, and they formed the necessary intermediate authority between the Roman senate and the Italian communities. Moreover, as is shown by
the later municipal constitution, the chief functionaries in every Italian community,1 whatever might be their title, had to undertake a valuation every fourth or fifth year—an
1 Not merely in every Latin one; for the censorship or so-called quinquennalitas occurs, as is well known, also among communities whose constitution was not formed according to the Latin scheme.
Valuation of the empire.
58
UNION OF ITALY book n
chap, vii UNION OF ITALY
59
institution, the suggestion of which must necessarily have emanated from Rome, and which can only have been intended to furnish the senate with a view of the resources in men and money of the whole of Italy, corresponding to the census in Rome.
Lastly, with this military administrative union of the
Italy whole peoples dwelling to the south of the Apennines, as j^TM
far as the Iapygian promontory and the straits of Rhegium, was connected the rise of a new name common to them all —that of "the men of the toga" (togati), which was their oldest designation in Roman state law, or that of the "Italians," which was the appellation originally in use among the Greeks and thence became universally current The various nations inhabiting those lands were probably first led to feel and own their unity, partly through their common contrast to the Greeks, partly and mainly through their common resistance to the Celts ; for, although an Italian community may now and then have made common cause with the Celts against Rome and employed the opportunity to recover independence, yet in the long run sound national feeling necessarily prevailed. As the " Gallic field " down to a late period stood contrasted in law with the Italian, so the " men of the toga " were thus named in contrast to the Celtic "men of the hose"
and it is probable that the repelling of the Celtic invasions played an important diplomatic part as a reason or pretext for centralizing the military resources of Italy in the hands of the Romans. Inasmuch as the Romans on the one hand took the lead in the great national struggle and on the other hand compelled the Etruscans, Latins, Sabellians, Apulians, and Hellenes (within the bounds to be immediately described) alike to fight under their standards, that unity, which hitherto had been undefined and latent rather than expressed, obtained firm consolidation and recognition in state law; and the
(braccati);
Earliest boundaries of the
Italian confeder acy.
6o UNION OF ITALY BOOK II
name Italia, which originally and even in the Greek authors of the fifth century —in Aristotle for instance — pertained only to the modern Calabria, was transferred to the whole land of these wearers of the toga.
The earliest boundaries of this great armed confederacy led by Rome, or of the new Italy, reached on the western coast as far as the district of Leghorn south of the Arnus,1 on the east as far as the Aesis north of Ancona. The townships colonized by Italians, lying beyond these limits, such as Sena Gallica and Ariminum beyond the Apennines, and Messana in Sicily, were reckoned geographically as situated out of Italy — even when, like Ariminum, they were members of the confederacy or even, like Sena, were Roman burgess communities. Still less could the Celtic cantons beyond the Apennines be reckoned among the togati, although perhaps some of them were already among the clients of Rome.
The new Italy had thus become a political unity ; it was also in the course of becoming a national unity. Already the ruling Latin nationality had assimilated to itself the Sabines and Volscians and had scattered isolated Latin communities over all Italy; these germs were merely developed, when subsequently the Latin language became the mother-tongue of every one entitled to wear the Latin toga. That the Romans already clearly recognized this as their aim, is shown by the familiar extension of the Latin name to the whole body of contingent-furnishing Italian allies. 2 Whatever can still be recognized of this grand
1 This earliest boundary is probably indicated by the two small town ships Adfines, of which one lay north of Arezzo on the road to Florence, the second on the coast not far from Leghorn. Somewhat further to the south of the latter, the brook and valley of Vada are still called Fin me delta
First steps towards the Latin izing of Italy.
fine, Valle deltafine (Targioni Tozzetti, Viaggj, iv. 430).
9 In strict official language, indeed, this was not the case. The fullest 111. designation of the Italians occurs in the agrarian law of 643, line ai ;— \ceivis] Romanus sociumve ntminisve L. atini, quibus ex formula togatorum [milita in terra Italia imperare soleni] ; in like manner at the 29th line
of the same the peregrinus is distinguished from the Latimus, and In the
chap, vil UNION OF ITALY 61
politir. il structure testifies to the great political sagacity of
its nameless architects ; and the singular cohesion, which
that confederation composed of so many and so diversified ingredients subsequently exhibited under the severest
shocks, stamped their great work with the seal of success.
From the time when the threads of this net drawn as New skilfully as firmly around Italy were concentrated in the Posltion<rf hands of the Roman community, it was a great power, and a great took its place in the system of the Mediterranean states in Power- the room of Tarentum, Lucania, and other intermediate
and minor states erased by the last wars from the list of political powers. Rome received, as it were, an official recognition of its new position by means of the two solemn embassies, which in 481 were sent from Alexandria to 273. Rome and from Rome to Alexandria, and which, though primarily they regulated only commercial relations, beyond doubt prepared the way for a political alliance. As Carthage was contending with the Egyptian government regarding Cyrene and was soon to contend with that of Rome regarding Sicily, so Macedonia was contending with
the former for the predominant influence in Greece, with the latter proximately for the dominion of the Adriatic coasts. The new struggles, which were preparing on all sides, could not but influence each other, and Rome, as mistress of Italy, could not fail to be drawn into the wide arena which the victories and projects of Alexander the Great had marked out as the field of conflict for his successors.
decree of the senate as to the Bacchanalia in 568 the expression is used : 186. ne quis ceivis Romanus neve nominis Latini neve socium quisquam. But
in common use very frequently the second or third of these three sub divisions is omitted, and along with the Romans sometimes only those Latini nominis are mentioned, sometimes only the socii (Weissenborn on
I. iv. xxii. 50, 6), while there is no difference in the meaning. The designation homines nominis Latini ac socii Italici (Sallust. Jug. 40), correct as it is in itself, is foreign to the official usui loquendi, which knows Italia, but not Italici.
LAW— RELIGION— MILITARY SYSTEM book u
CHAPTER VIII
LAW RELIGION MILITARY SYSTEM CONDITION NATIONALITY
ECONOMIC
Develop- jN
law.
Police.
the development which law underwent during this period within the Roman community, probably the most important material innovation was that peculiar control which the community itself, and in a subordinate
its office-bearers, began to exercise over the manners and habits of the individual burgesses. The germ of it is to be sought in the right of the magistrate to inflict property-fines (multae) for offences against order 192). In the case of all fines of more than two sheep and thirty oxen or, after the cattle-fines had been the decree of the people
480. in 324 commuted into money, of more than 3020 libral asses 0£3o), the decision soon after the expulsion of the kings passed by way of appeal into the hands of the community 320); and thus procedure by fine acquired an importance which was far from originally possessing. Under the vague category of offences against order men might include any accusations they pleased, and by the higher grades in the scale of fines they might accomplish whatever they desired. The dangerous character of such
was brought to light rather than obviated the mitigating proviso, that these property- fines, where they were not fixed law at definite sum,
should not amount to half the estate belonging to the
arbitrary procedure
degree
by
by
(i.
a
by
(i.
it
chap, viii ECONOMIC CONDITION— NATIONALITY
63
person fined. To this class belonged the police-laws, which from the earliest times were especially abundant in the Roman community. Such were those enactments of the Twelve Tables, which prohibited the anointing of a dead body by persons hired for the purpose, the dressing it out with more than one cushion or more than three purple- edged coverings, the decorating it with gold or gaudy chaplets, the use of dressed wood for the funeral pile, and the perfuming or sprinkling of the pyre with frankincense or myrrh-wine ; which limited the number of flute-players in the funeral procession to ten at most ; and which forbade
wailing women and funeral banquets—in a certain measure the earliest Roman legislation against luxury. Such also were the laws—originating in the conflicts of the orders— directed against usury as well as against an undue use of the common pasture and a disproportionate appropriation of the occupiable domain-land. But far more fraught with danger than these and similar fining-laws, which at any rate formulated once for all the trespass and often also the measure of punishment, was the general prerogative of
every magistrate who exercised jurisdiction to inflict a fine for an offence against order, and, if the fine reached the amount necessary to found an appeal and the person fined did not submit to the penalty, to bring the case before the community. Already in the course of the fifth century quasi-criminal proceedings had been in this way instituted against immorality of life both in men and women, against the forestalling of grain, witchcraft, and similar matters. Closely akin to this was the quasi-jurisdiction of the censors, which likewise sprang up at this period. They were invested with authority to adjust the Roman budget and the burgess-roll, and they availed themselves of partly to impose of their own accord taxes on luxury which differed only in form from penalties on partly to abridge or withdraw the political privileges of the burgess who was
it,
it,
Modifica- thetawi
64
LAW— RELIGION— MILITARY SYSTEM book ll
reported to have been guilty of any infamous action i. 406). The extent to which this surveillance was already carried is shown by the fact that penalties of this nature were inflicted for the negligent cultivation of a man's own land, and that such a man as Publius Cornelius
290. 277. Rufinus (consul in 464, 477) was struck off the list of 275. senators by the censors of 479, because he possessed silver plate to the value of 3360 sesterces (^34). No doubt,
according to the rule generally applicable to the edicts of magistrates 335), the sentences of the censors had legal force only during their censorship, that on an average for the next five years, and might be renewed or not by the next censors at pleasure. Nevertheless this censorial prerogative was of so immense importance, that in virtue of the censorship, originally subordinate
400).
and much evil, and we do not mean to combat the view of those who hold that the evil preponderated. But we must not forget that—amidst the morality external certainly but stern and energetic, and the powerful enkindling of public spirit, that were the genuine characteristics of this period — these institutions remained exempt as yet from any really base misuse; and they were the chief instruments in repressing individual freedom, they were also the means by which the public spirit and the good old manners and order of the Roman community were with might and main upheld.
Along with these changes humanizing and moderniz- m8 tendency showed itself slowly, but yet clearly enough,
the development of Roman law. Most of the enact
became in rank and consideration the first of all
375, The government of the senate rested essentially on this twofold police control supreme and subordinate, vested in the community and its officials, and furnished with powers as extensive as they were arbitrary. Like every such arbitrary government, was productive of much good
magistracy,
in
a
if
it
(i.
it
a
is
(i.
chap, vin ECONOMIC CONDITION— NATIONALITY
65
ments of the Twelve Tables, which coincide with the laws of Solon and therefore may with reason be considered as in substance innovations, bear this character ; such as the securing the right of free association and the autonomy of the societies that originated under it ; the enactment that forbade the ploughing up of boundary-balks ; and the mitigation of the punishment of theft, so that a thief not caught in the act might henceforth release himself from the plaintiffs suit by payment of double compensation. The law of debt was modified in a similar sense, but not till upwards of a century afterwards, by the Poetelian law
The right freely to dispose of property, which according to the earliest Roman law was accorded to the owner in his lifetime but in the case of death had hitherto been conditional on the consent of the community, was liberated from this restriction, inasmuch as the law of the Twelve Tables or its interpretation assigned to the private testament the same force as pertained to that confirmed in the curies. This was an important step towards the break ing up of the clanships, and towards the full carrying out of individual liberty the disposal of property. The fearfully absolute paternal power was restricted by the enactment, that son thrice sold by his father should not relapse into his power, but should thenceforth be free to which — by legal inference that, strictly viewed, was no doubt absurd—was soon attached the possibility that father might voluntarily divest himself of dominion over his son by emancipation. In the law of marriage civil marriage was permitted 112); and although the full marital power was associated as necessarily with true civil as with true religious marriage, yet the permission of connection instead of marriage 73, note), formed without that power, constituted first step towards relaxa tion of the full power of the husband. The first step towards legal enforcement of married life was the tax on
389).
vol. 11
37
a a
a
(i. a
(i.
a
a
a
in
a;
(i.
66 LAW— RELIGION— MILITARY SYSTEM book ii
old bachelors (aes uxorium), with the introduction of 408. which Camillus began his public career as censor in 351.
Adminis- Changes more comprehensive than those effected in
° justice.
Code of common
the 'aw *tse^ were introduced into — what was more import ant in a political point of view, and more easily admitted of alteration —the system of judicial administration. First ^ ^ came the important limitation of the supreme judicial power by the embodiment of the common law in a written code, and the obligation of the magistrate thenceforth to decide no longer according to varying usage, but according to the written letter, in civil as well as in criminal pro-
451. 450. cedure (303, 304). The appointment of a supreme magistrate in Rome exclusively for the administration of
867. justice in 387 383), and the establishment of separate New police functionaries which took place contemporaneously
function- anes.
m Rome, and was imitated under Roman influence in all
the Latin communities
and precision of justice. These police-magistrates or aediles had, of course, certain jurisdiction at the same time assigned to them. On the one hand, they were the ordin ary civil judges for sales concluded in open market, for the cattle and slave markets in particular; and on the other hand, they ordinarily acted in processes of fines and
amercements as judges of first instance or—which was in Roman law the same thing—as public prosecutors. In consequence of this the administration of the laws impos ing fines, and the equally indefinite and politically import ant right of fining in general, were vested mainly in them. Similar but subordinate functions, having especial reference to the poorer classes, pertained to the three night- or blood- masters (ires viri nocturni or capitales), first nominated in
383, 452), secured greater speed
289. 465 they were entrusted with the duties of nocturnal police as regards fire and the public safety and with the superintendence of executions, with which certain summary jurisdiction was very soon, perhaps even from
a
;
a
(L
(i.
chap, Vlll ECONOMIC CONDITION—NATIONALITY
67
the outset, associated. 1 Lastly from the increasing extent of the Roman community it became necessary, out of re gard to the convenience of litigants, to station in the more remote townships special judges competent to deal at least with minor civil causes. This arrangement was the rule for the communities of burgesses sine suffragio (p. 49), and was perhaps even extended to the more remote communities of full burgesses,8 —the first germs of a Romano-municipal jurisdiction developing itself by the side of that which was strictly Roman.
In civil procedure (which, however, according to the Changes in ideas of that period included most of the crimes committed proce ur& against fellow-citizens) the division of a process into the settlement of the question of law before the magistrate
(ius), and the decision of the question of fact by a private
person nominated by the magistrate (judicium) —a division
doubtless customary even in earlier times — was on the
abolition of the monarchy prescribed by law 322) and
to that separation the private law of Rome was mainly
indebted for its logical clearness and practical precision. *
The view formerly adopted, that these tres viri belonged to the earliest period, erroneous, for colleges of magistrates with odd numbers are foreign to the oldest state-arrangements (Chronol. p. 15, note 12).
Probably the well-accredited account, that they were first nominated
in 465 (Liv. Ep. 11), should simply be retained, and the otherwise 289. suspicious inference of the falsifier Licinius Macer (in Liv. vii. 46), which makes mention of them before 450, should be simply rejected. At first SOI. undoubtedly the tres viri were nominated by the superior magistrates, as
was the case with most of the later magistrates minores; the Papirian pUHscitum, which transferred the nomination of them to the community (Festus, v. sacrament urn, p. 344, Mull. ), was at any rate not issued till
after the institution of the office of praetor peregrinus, or at the earliest towards the middle of the sixth century, for names the praetor qui inter
cives ius dicit.
This inference suggested by what Livy says (ix. 20) as to the re organization of the colony of Antium twenty years after was founded and self-evident that, while the Romans might very well impose on the inhabitant of Ostia the duty of settling all his lawsuits in Rome, the same course could not be followed with townships like Antium and Sena.
People are in the habit of praising the Romans as a nation specially privileged in respect to jurisprudence, and of gazing with wonder on their admirable law as a mystical gift of heaven presumably by way of speci-
,--
;
it
**1 it
is
it
(i. ;
;
is
is
68 LAW— RELIGION— MILITARY SYSTEM book ii
In actions regarding property, the decision as to what constituted possession, which hitherto had been left to the arbitrary caprice of the magistrate, was subjected gradually to legal rules ; and, alongside of the law of property, a law of possession was developed — another step, by which the magisterial authority lost an important part of its powers. In criminal processes, the tribunal of the people, which hitherto had exercised the prerogative of mercy, became a court of legally secured appeal. If the accused after hearing (guaestio) was condemned by the magistrate and appealed to the burgesses, the magistrate proceeded in presence of these to the further hearing (anquisitio), and, when he after three times discussing the matter before the community had repeated his decision, in the fourth diet the sentence was confirmed or rejected by the burgesses. Modification was not allowed. A similar republican spirit breathed in the principles, that the house protected the
burgess, and that an arrest could only take place out of doors; that imprisonment during investigation was to be avoided ; and that it was allowable for every accused and not yet condemned burgess by renouncing his citizenship to withdraw from the consequences of condemnation, so far as they affected not his property but his person — prin
ally excusing themselves for the worthlessness of their own legal system. A glance at the singularly fluctuating and undeveloped criminal law of the Romans might show the untenableness of ideas so confused even to those who may think the proposition too simple, that a sound people has a sound law, and a morbid people an unsound. Apart from the more general political conditions on which jurisprudence also, and indeed juris prudence especially, depends, the causes of the excellence of the Roman civil law lie mainly in two features : first, that the plaintiff and defendant were specially obliged to explain and embody in due and binding form the grounds of the demand and of the objection to comply with it ; and secondly, that the Romans appointed a permanent machinery for the edictal development of their law, and associated it immediately with practice. By the former the Romans precluded the pettifogging practices of advocates, by the latter they obviated incapable law-making, so far as such things can be prevented at all ; and by means of both in conjunction they satisfied, as far as is possible, the two conflicting requirements, that law shall constantly be fixed, and that it shall constantly be in accordance with the spirit of the age.
chap, viii ECONOMIC CONDITION—NATIONALITY
69
ciples, which certainly were not embodied in formal laws and accordingly did not legally bind the prosecuting magistrate, but yet were by their moral weight of the greatest influence, particularly in limiting capital punish ment But, if the Roman criminal law furnishes a remark able testimony to the strong public spirit and to the increasing humanity of this epoch, it on the other hand suffered in its practical working from the struggles between the orders, which in this respect were specially baneful. The co-ordinate primary jurisdiction of all the public
in criminal cases, that arose out of these conflicts 354), led to the result, that there was no longer any fixed authority for giving instructions, or any serious preliminary investigation, in Roman criminal pro cedure. And, as the ultimate criminal jurisdiction was exercised in the forms and by the organs of legislation, and never disowned its origin from the prerogative of mercy as, moreover, the treatment of police fines had an injurious reaction on the criminal procedure which was externally very similar; the decision in criminal causes was pro nounced —and that not so much by way of abuse, as in some degree by virtue of the constitution —not according to fixed law, but according to the arbitrary pleasure of the judges. In this way the Roman criminal procedure was completely void of principle, and was degraded into the sport and instrument of political parties; which can the less be excused, seeing that this procedure, while especially applied to political crimes proper, was applicable also to others, such as murder and arson. The evil was aggravated
the clumsiness of that procedure, which, in concert with the haughty republican contempt for non-burgesses, gave rise to growing custom of tolerating, side by side with the more formal process, summary criminal, or rather police, procedure against slaves and common people. Here too the passionate strife regarding political processes
magistrates
a
a
by
;
(i.
Religion.
overstepped natural limits, and introduced institutions which materially contributed to estrange the Romans step by step from the idea of a fixed moral order in the administration of justice.
We are less able to trace the progress of the religious conceptions of the Romans during this epoch. In general they adhered with simplicity to the simple piety of their ancestors, and kept equally aloof from superstition and
70
LAW— RELIGION— MILITARY SYSTEM book ii
New gods, from unbelief. How vividly the idea of spiritualizing all earthly objects, on which the Roman religion was based, still prevailed at the close of this epoch, is shown by the new " God of silver " (Argentinus), who presumably came into existence only in consequence of the introduction of
269. the silver currency in 485, and who naturally was the son of the older " God of copper " (Aesculanus).
The relations to foreign lands were the same as hereto fore ; but here, and here especially, Hellenic influences were on the increase. It was only now that temples began to rise in Rome itself in honour of the Hellenic gods. The oldest was the temple of Castor and Pollux, which had been vowed in the battle at lake Regillus 438) and was
485. consecrated on 15th July 269.
dominion of Rome was extended over the interior of
Lower Italy, and over the whole Italian east coast from
the Ionian sea to the Celtic frontier.
Before we describe the political organization under which Maritime the Italy which was thus united was governed on the part rela001* of Rome, it remains that we should glance at the maritime
relations that subsisted in the fourth and fifth centuries. At
this period Syracuse and Carthage were the main competi tors for the dominion of the western waters. On the whole,
Constroc-
^^f* and roads.
2g«'
4o
STRUGGLE BETWEEN PYRRHUS book ii
notwithstanding the great temporary successes which 406-865. Dionysius (348-389), Agathocles (437-465), and Pyrrhus
(476-47 8) obtained at sea, Carthage had the preponderance, and Syracuse sank more and more into a naval power of the second rank. The maritime importance of Etruria was wholly gone 415); the hitherto Etruscan island of Corsica, did not quite pass into the possession, fell under the maritime supremacy, of the Carthaginians. Tarentum, which for time had played considerable part, had its power broken the Roman occupation. The brave Massiliots maintained their ground in their own waters; but they exercised no material influence over the course of events in those of Italy. The other maritime cities hardly came as yet into serious account-
Rome itself was not exempt from similar fate; its the Roman own waters were likewise commanded by foreign fleets. power. was indeed from the first maritime city, and in the
of its vigour never was so untrue to its ancient traditions as wholly to neglect its war marine or so foolish as to desire to be a mere continental power. Latium furnished the finest timber for ship-building, far surpassing the famed growths of Lower Italy; and the very docks constantly maintained in Rome are enough to show that the Romans never abandoned the idea of possessing fleet of their own. During the perilous crises, however, which the expulsion of the kings, the internal disturbances in the Romano-Latin confederacy, and the unhappy wars with the Etruscans and Celts brought upon Rome, the Roman? could take but little interest in the state of matters in the Mediterranean; and, in consequence of the policy of Rome directing itself more and more decidedly to the subjugation of the Italian continent, the growth of its naval power was arrested. There hardly any mention of Latin vessels of war up to the end of the fourth century,
e. 850. except that the votive offering from the Veientine spoil was
278 27e!
Decline of
period
is
a
a
It
a
a
by
(i. a
if it
chap, Til AND ROME
41
sent to Delphi in a Roman vessel (360). The Antiates 891. indeed continued to prosecute their commerce with armed vessels and thus, as occasion offered, to practise the trade
of piracy also, and the "Tyrrhene corsair" Postumius, whom Timoleon captured about 415, may certainly have 889. been an Antiate; but the Antiates were scarcely to be reckoned among the naval powers of that period, and, had they been so, the fact must from the attitude of Antium towards Rome have been anything but an advantage to the latter. The extent to which the Roman naval power had declined about the year 400 is shown by the plundering of 850. the Latin coasts by a Greek, presumably a Sicilian, war fleet in 405, while at the same time Celtic hordes were 819. traversing and devastating the Latin land 43 In the following year (406), and beyond doubt under the 818. immediate impression produced these serious events,
the Roman community and the Phoenicians of Carthage, acting respectively for themselves and for their dependent allies, concluded treaty of commerce and navigation — the oldest Roman document of which the text has reached us, although only in Greek translation. 1 In that treaty the Romans had to come under obligation not to navigate the Libyan coast to the west of the Fair Promontory (Cape Bon) excepting cases of necessity. On the other hand they obtained the privilege of freely trading, like the natives, in Sicily, so far as was Carthaginian and in Africa and Sardinia they obtained at least the right to dispose of their merchandise at price fixed with the concurrence of the Carthaginian officials and guaranteed by the Carthaginian community. The privilege of free trading seems to have been granted to the Carthaginians at least in Rome, perhaps in all Latium only they bound them-
The grounds for assigning the document given in Polyblns (ill. a3)
not to 345, bat to 406, are set forth in my Rim. Chronologic, 320 609. US. [translated in the Appendix to this volume
p.
/.
1
1;
it a
;
(i. a).
in
a
a
by
283. 268.
and, on the coast of the Adriatic, Sena Gallica and Castrum Novum about 471 12), and Ariminum 486 39); to which falls to be added the occupation of Brundisium, which took place immediately after the close of the Pyrrhic
4S
STRUGGLE BETWEEN PYRRHUS book ii
selves neither to do violence to the subject Latin communi ties 452), nor, they should set foot as enemies on Latin soil, to take up their quarters for night on shore— in other words, not to extend their piratical inroads into the interior —nor to construct any fortresses in the Latin land.
We may probably assign to the same period the already mentioned 12) treaty between Rome and Tarentum, respecting the date of which we are only told that was
282. concluded considerable time before 472. By the Romans bound themselves — for what concessions on the part of Tarentum not stated—not to navigate the waters to the east of the Lacinian promontory stipulation which they were thus wholly excluded from the eastern basin of the Mediterranean.
These were disasters no less than the defeat on the Allia, and tjje Roman senate seems to have felt them as such and coast. to have made use of the favourable turn, which the Italian
Roman fortifica- uon of the
relations assumed soon after the conclusion of the humiliat ing treaties with Carthage and Tarentum, with all energy to improve its depressed maritime position. The most import ant of the coast towns were furnished with Roman colonies: Pyrgi the seaport of Caere, the colonization of which probably falls within this period along the west coast, Antium in 415 462), Tarracina in 425 462), the island
889. 829.
818. of Pontia in 441 476), so that, as Ardea and Circe had
previously received colonists, all the Latin seaports of con sequence in the territory of the Rutuli and Volsci had now become Latin or burgess colonies further, in the territory
295. of the Aurunci, Minturnae and Sinuessa in 459 492); 278. in that of the Lucanians, Paestum and Cosa in 481 (p. 39);
(p.
in (p.
(i.
;
;
(i. (i.
if
ii
it it
(i.
;a a
by
a is
(p.
(i.
crap, VII AND ROME
43
war. In the greater part of these places—the burgess or maritime colonies 1—the young men wer<? exempted from serving in the legions and destined solely for the watching of the coasts. The well-judged preference given at the same time to the Greeks of Lower Italy over their Sabellian neighbours, particularly to the considerable communities of Neapolis, Rhegium, Locri, Thurii, and Heraclea, and their similar exemption under the like conditions from furnishing contingents to the land army, completed the network drawn by Rome around the coasts of Italy.
But with a statesmanlike sagacity, from which the sue- The ceeding generations might have drawn a lesson, the leading ? £mav men of the Roman commonwealth perceived that all these
coast fortifications and coast garrisons could not but prove inadequate, unless the war marine of the state were again placed on a footing that should command respect. Some
sort of nucleus for this purpose was already furnished on
the subjugation of Antium (416) by the serviceable war- 388. galleys which were carried off to the Roman docks; but
the enactment at the same time, that the Antiates should abstain from all maritime traffic,' is a very clear and dis tinct indication how weak the Romans then felt themselves
at sea, and how completely their maritime policy was still summed up in the occupation of places on the coast.
1 These were Pyrgi, Ostia, Antium, Tarracina, Minturnae, Sinuessa Sena Gallica, and Castrum Novum.
* This statement is quite as distinct (Liv. viii. 14 ; inttrdictum mari Antiati populo est) as it is intrinsically credible ; for Antium was inhabited
not merely by colonists, but also by its former citizens who had been nursed
in enmity to Rome 462). This view is, no doubt, inconsistent with the Greek accounts, which assert that Alexander the Great 431) and 823. Demetrius Poliorcetes 471) lodged complaints at Rome regarding 283. Antiate pirates. The former statement of the same stamp, and perhaps
from the same source, with that regarding the Roman embassy to Babylon (p. 1). It seems more likely that Demetrius Poliorcetes may have tried by edict to put down piracy in the Tyrrhene sea which he had never set eyes upon, and not at all inconceivable that the Antiates may have even as Roman citizens, in defiance of the prohibition, continued for time their old trade in an underhand fashion much dependence must not. how ever, be placed even on the second story.
S
:
is
a
it is
(i. (t
(t
44
STRUGGLE BETWEEN PYRRHUS book ii
Thereafter, when the Greek cities of southern Italy, Neapolis S26. leading the way in 428, were admitted to the clientship of
Rome, the war-vessels, which each of these cities bound itself to furnish as a war contribution under the alliance to the Romans, formed at least a renewed nucleus for a Roman
•11. fleet. In 443, moreover, two fleet-masters (duoviri navales) were nominated in consequence of a resolution of the
burgesses specially passed to that effect, and this Roman naval force co-operated in the Samnite war at the siege of Nuceria 480). Perhaps even the remarkable mission of Roman fleet of twenty-five sail to found " colony
Corsica, which Theophrastus mentions his History of 808. Plants" written about 446, belongs to this period. But
how little was immediately accomplished with all this pre
paration, shown the renewed treaty with Carthage in •M. 848. 448. While the stipulations of the treaty of 406 relating to Italy and Sicily 41) remained unchanged, the Romans
were now prohibited not only from the navigation of the eastern waters, but also from that of the Atlantic Ocean which was previously permitted, as well as debarred from holding commercial intercourse with the subjects of Carthage in Sardinia and Africa, and also, all probability, from effecting settlement in Corsica so that only Carthaginian Sicily and Carthage itself remained open to their traffic. We recognize here the jealousy of the dominant maritime power, gradually increasing with the extension of the Roman dominion along the coasts. Carthage compelled the
Romans to acquiesce in her prohibitive system, to submit to be excluded from the seats of production in the west and
According to Servius (in Aen. iv. 628) was stipulated in the Romano-Carthaginian treaties, that no Roman should set foot on (or rather occupy) Carthaginian, and no Carthaginian on Roman, soil, but Corsica was to remain in a neutral position between them (ut tuque Romani ad Mora Carthaginicnsium accederent tuque Carthaginienses ad litora Roma- norum Cr-sica esset media inter Romano! et Curlhaginienses). This appears to refer to our present period, and the colonization of Corsica seems to have been prevented by this very treaty.
1
a
it
in
a
a
is
(i.
;i
in
(p.
by
in
hap, vii AND ROME
45
east (connected with which exclusion is the story of a public reward bestowed on the Phoenician mariner who at the sacrifice of his own ship decoyed a Roman vessel, steering after him into the Atlantic Ocean, to perish on a sand-bank), and to restrict their navigation under the treaty to the narrow space of the western Mediterranean —and all this for the mere purpose of averting pillage from their coasts and of securing their ancient and important trading connec tion with Sicily. The Romans were obliged to yield to these terms ; but they did not desist from their efforts to rescue their marine from its condition of impotence.
A comprehensive measure with that view was the Quaestors institution of four quaestors of the fleet (guaestorcs dassici) ° *** in 487 : of whom the first was stationed at Ostia the port 267.
of Rome ; the second, stationed at Cales then the capital
of Roman Campania, had to superintend the ports of Campania and Magna Graecia; the third, stationed at Ariminum, superintended the ports on the other side of
the Apennines ; the district assigned to the fourth is not
known. These new standing officials were intended to
exercise not the sole, but a conjoint, guardianship of the
coasts, and to form a war marine for their protection. The Variance
objects of the Roman senate —to recover their independence
by sea, to cut off the maritime communications of Tarentum, Carthage. to close the Adriatic against fleets coming from Epirus, and
to emancipate themselves from Carthaginian supremacy —
were very obvious. Their already explained relations
with Carthage during the last Italian war discover traces
of such views. King Pyrrhus indeed compelled the two
cities once more — it was for the last time — to conclude an offensive alliance ; but the lukewarmness and faithlessness of that alliance, the attempts of the Carthaginians to establish themselves in Rhegium and Tarentum, and the immediate occupation of Brundisium by the Romans after the termination of the war, show
great
Ro^^
Rome and
n^aj powen.
46
UNION OF ITALY book h
clearly how much their respective interests already came into collision.
Rome very naturally sought to find support against Carthage from the Hellenic maritime states. Her old and close relations of amity with Massilia continued uninter rupted. The votive offering sent by Rome to Delphi, after the conquest of Veii, was preserved there in the treasury
of the Massiliots. After the capture of Rome by the Celts there was a collection in Massilia for the sufferers by the fire, in which the city chest took the lead ; in return the Roman senate granted commercial advantages to the Massiliot merchants, and, at the celebration of the games in the Forum assigned a position of honour (Graecostasis) to the Massiliots by the side of the platform for the senators. To the same category belong the treaties of commerce
806. and amity concluded by the Romans about 448 with Rhodes and not long after with Apollonia, a considerable mercantile town on the Epirot coast, and especially the closer relation, so fraught with danger for Carthage, which immediately after the end of the Pyrrhic war sprang up between Rome and Syracuse (p. 38).
United '•
850.
While the Roman power by sea was thus very far from keeping pace with the immense development of their power by land, and the war marine belonging to the Romans in particular was by no means such as from the geographical and commercial position of the city it ought to have been, yet it began gradually to emerge out of the complete nullity to which it had been reduced about the year 400 ; and, considering the great resources of Italy, the Phoenicians might well follow its efforts with anxious eyes.
The crisis in reference to the supremacy of the Italian waters was approaching ; by land the contest was decided. For the first time Italy was united into one state under the sovereignty of the Roman community. What political prerogatives the Roman community on this occasion with
chap. Vil UNION OF ITALY
47
drew from all the other Italian communities and took into its own sole keeping, or in other words, what conception in state-law is to be associated with this sovereignty of Rome, we are nowhere expressly informed, and—a signifi cant circumstance, indicating prudent calculation —there does not even exist any generally current expression for that conception. 1 The only privileges that demonstrably belonged to it were the rights of making war, of concluding treaties, and of coining money. No Italian community could declare war against any foreign state, or even negotiate with or coin money for circulation. On the other hand every declaration of war made by the Roman people and every state -treaty resolved upon by were binding in law on all the other Italian communities, and
the silver money of Rome was legally current throughout all Italy. It probable that the formulated prerogatives of the leading community extended no further. But to these there were necessarily attached rights of sovereignty that practically went far beyond them.
The relations, which the Italians sustained to the leading The full community, exhibited in detail great inequalities. In this K°ma? point 01 view, in addition to the full burgesses of Rome,
there were three different classes of subjects to be dis tinguished. The full franchise itself, in the first place, was extended as far as was possible, without wholly abandoning
the idea of an urban commonwealth as applied to the Roman commune. The old burgess-domain had hitherto been enlarged chiefly by individual assignation in such a way that southern Etruria as far as towards Caere and
The clause, by which dependent people binds" itself to uphold in a friendly manner the sovereignty of that of Rome (maiesiatem populi Romani comiler conservare), certainly the technical appellation of that mildest form of subjection, but probably did not come into use till a considerably later period (Cic. pro Balbo, 16, 35). The appellation of clientship derived from private law, aptly as in its very indefiniteness denotes the relation (Dig. xlix. 15, 7, 1), was scarcely applied to officially in earlier times.
f
it it
it
a is
1
'
is
it,
it
48
UNION OF ITALY book ii
Falerii 433), the districts taken from the Hernici on the Sacco and on the Anio 485) the largest part of the Sabine country 492) and large tracts of the territory formerly Volscian, especially the Pomptine plain 463, 464) were converted into land for Roman farmers, and new burgess- districts were instituted mostly for their inhabitants. The same course had even already been taken with the
Falernian district on the Volturnus ceded by Capua
All these burgesses domiciled outside of Rome were with out commonwealth and an administration of their own on the assigned territory there arose at the most market- villages (fora et conciliabuld). In position not greatly different were placed the burgesses sent out to the so-called maritime colonies mentioned above, who were likewise left in possession of the full burgess-rights of Rome, and whose self-administration was of little moment. Towards the close of this period the Roman community appears to have begun to grant full burgess-rights to the adjoining communities of passive burgesses who were of like or closely kindred nationality; this was probably done first
for Tusculum,1 and so, presumably, also for the other
communities of passive burgesses in Latium proper, then l«8. at the end of this period (486) was extended to the Sabine towns, which doubtless were even then essentially Latinized and had given sufficient proof of their fidelity in the last severe war. These towns retained the restricted self-
administration, which under their earlier legal position belonged to them, even after their admission into the Roman burgess-union was they more than the maritime colonies that furnished the model for the special common wealths subsisting within the body of Roman full burgesses
That Tusculum as was the first to obtain passive burgess-rights 448) was also the first to exchange these for the rights of full burgesses,
probable in itself and presumably in the latter and not in the former
463).
respect that the town named by Cicero (pro Mur. tiUufuisiimum.
19) municifium
8,
is (i.
1
is
it
; it
it is
a
a
(i. ;
(i.
(i.
(i.
(i.
CHAP, vil UNION OF ITALY
49
and so, in the course of time, for the Roman municipal organization. Accordingly the range of the full Roman burgesses must at the end of this epoch have extended northward as far as the vicinity of Caere, eastward as far as the Apennines, and southward as far as Tarracina; although in this case indeed we cannot speak of boundary in a strict sense, partly because a number of federal towns with Latin rights, such as Tibur, Praeneste, Signia, Norba, Circeii, were found within these bounds, partly because beyond them the inhabitants of Minturnae, Sinuessa, of the Falernian territory, of the town Sena Gallica and some other townships, likewise possessed the full franchise, and families of Roman farmers were presumably to be even now found scattered throughout Italy, either isolated or united in villages.
Among the subject communities the passive burgesses Subject {fives sine suffragio), apart from the privilege of electing and tieJa being elected, stood on an equality of rights and duties
with the full burgesses. Their legal position was regulated
by the decrees of the Roman comitia and the rules issued
for them by the Roman praetor, which, however, were doubtless based essentially on the previous arrangements. Justice was administered for them by the Roman
or his deputies (pratfecti) annually sent to the individual communities. Those of them in a better position, such as
the city of Capua 463), retained self-administration and
along with the continued use of the native language, and
had officials of their own who took charge of the levy and the census. The communities of inferior rights such as Caere
433) were deprived even of self-administration, and this was doubtless the most oppressive among the different forms of subjection. However, as was above remarked, there already apparent at the close of this period an effort to incorporate these communities, at least so far as they were dc facto Latinized among the full burgesses.
VOL. 11
36
praetor
is
(i.
it
(i.
So Latins.
UNION OF ITALY book ii
Among the subject communities the most privileged and most important class was that of the Latin towns, which obtained accessions equally numerous and important in the autonomous communities founded by Rome within and even beyond Italy—the Latin colonies, as they were called — and was always increasing in consequence of new settlements of the same nature. These new urban com munities of Roman origin, but with Latin rights, became more and more the real buttresses of the Roman rule over Italy. These Latins, however, were by no means those with whom the battles of the lake Regillus and Trifanum had been fought They were not those old members of the Alban league, who reckoned themselves originally equal to, if not better than, the community of Rome, and who felt the dominion of Rome to be an oppressive yoke, as the fearfully rigorous measures of security taken against Praeneste at the beginning of the war with Pyrrhus, and the collisions that evidently long continued to occur with the Praenestines in particular, show. This old Latium had essentially either perished or become merged in Rome, and it now numbered but few communities politically self- subsisting, and these, with the exception of Tibur and
Praeneste, throughout insignificant The Latium of the later times of the republic, on the contrary, consisted almost exclusively of communities, which from the be ginning had honoured Rome as their capital and parent city ; which, settled amidst regions of alien language and of alien habits, were attached to Rome by community of language, of law, and of manners ; which, as the petty tyrants of the surrounding districts, were obliged doubtless to lean on Rome for their very existence, like advanced posts leaning upon the main army; and which, in fine, in consequence of the increasing material advantages of Roman citizenship, were ever deriving very considerable benefit from their equality of rights with the Romans,
CHAP. Vtl UNION OF ITALY
51
limited though it was. A portion of the Roman domain, for instance, was usually assigned to them for their separate use, and participation in the state leases and contracts was open to them as to the Roman burgess. Certainly in their case also the consequences of the self-subsistence granted to them did not wholly fail to appear. Venusian inscrip tions of the time of the Roman republic, and Beneventane inscriptions recently brought to light,1 show that Venusia as well as Rome had its plebs and its tribunes of the people, and that the chief magistrates of Beneventum bore the title of consul at least about the time of the Hannibalic war. Both communities are among the most recent of the
Latin colonies with older rights : we perceive what pre tensions were stirring in them about the middle of the fifth century. These so-called Latins, issuing from the Roman burgess -body and feeling themselves in every respect on a level with already began to view with displeasure their subordinate federal rights and to strive after full equaliza tion. Accordingly the senate had exerted itself to curtail these Latin communities —however important they were for Rome—as far as possible, in their rights and privileges, and to convert their position from that of allies to that of subjects, so far as this could be done without removing the wall of partition between them and the non-Latin com munities of Italy. We have already described the abolition of the league of the Latin communities itself as well as of their former complete equality of rights, and the loss of the most important political privileges belonging to them. On the complete subjugation of Italy further step was taken, and a beginning was made towards the restriction of the personal rights — that had not hitherto been touched — of the individual Latin, especially the important right of freedom of settlement In the case of Ariminum founded
V. Cervio A. ami dcdicavit and Iunonti Qttiritti mtrm. C FtiaUus L. emul itiitmiU
/, /.
it,
1
a
j* UNION OF ITALY book ii
M&. in 486 and of all the autonomous communities constituted afterwards, the advantage enjoyed by them, as compared with other subjects, was restricted to their equalization with burgesses of the Roman community so far as regarded private rights—those of traffic and barter as well as those of inheritance. 1 Presumably about the same time the full right of free migration allowed to the Latin communities hitherto established —the title of every one of their burgesses to gain by transmigration to Rome full burgess-rights there —was, for the Latin colonies of later erection, restricted to those persons who had attained to the highest office of the community in their native home ; these alone were allowed to exchange their colonial burgess-rights for the Roman. This clearly shows the complete revolution in the position of Rome. So long as Rome was still but one among the many urban communities of Italy, although that one might be the first, admission even to the unrestricted Roman franchise was universally regarded as a gain for the ad
1 According to the testimony of Cicero (pro Caa. 35) Sulla gave to the Volaterrans the former ius of Ariminum, that is — adds the orator — the ius of the "twelve colonies" which had not the Roman civitas but had full commcrcium with the Romans. Few things have been so much discussed as the question to what places this ius of the twelve towns refers ; and yet the answer is not far to seek. There were in Italy and Cisalpine Gaul — laying aside some places that soon disappeared again —thirty-four Latin colonies established in all. The twelve most recent of these — Ariminum Beneventum, Firmum, Aesernia, Brundisium, Spoletium, Cremona, Placentia, Copia, Valentia, Bononia,and Aquileia —are those here referred to ; and because Ariminum was the oldest of these and the town for which this new organization was primarily established, partly perhaps also because it was the first Roman colony founded beyond Italy, the ius of these colonies rightly took its name from Ariminum. This at the same time demon strates the truth of the view—which already had on other grounds very high probability —that all the colonies established in Italy (in the wider sense of the term) after the founding of Aquileia belonged to the class of burgess-colonies.
We cannot fully determine the extent to which the curtailment of the rights of the more recent Latin towns was carried, as compared with the earlier. If intermarriage, as is not improbable but is in fact anything but definitely established ( i. 132 ; Diodor. p. 590, 62, fr. Vat. p. 130, Din J. ), formed a constituent element of the original federal equality of rights, it was, at any rate, no longer conceded to the Latin colonies of more recent origin.
chap, yii UNION OF ITALY 53 ***-
mhting community, and the acquisition of that franchise by non-burgesses was facilitated in every way, and was in fact often imposed on them as a punishment. But after the Roman community became sole sovereign and all the others were its servants, the state of matters changed. The Roman community began jealously to guard its fran chise, and accordingly put an end in the first instance to the old full liberty of migration; although the statesmen of that period were wise enough still to keep admission to the Roman franchise legally open at least to the men of eminence and of capacity in the highest class of subject communities. The Latins were thus made to feel that Rome, after having subjugated Italy mainly by their aid, had now no longer need of them as before.
Lastly, the relations of the non-Latin allied communities were subject, as a matter of course, to very various rules, just as each particular treaty of alliance had defined them. Several of these perpetual alliances, such as that with the Hernican communities 445), passed over to footing of complete equalization with the Latin. Others, in which this was not the case, such as those with Neapolis 469), Nola 47 and Heraclea 31), granted rights com paratively comprehensive while others, such as the Tarentine and Samnite treaties, may have approximated to despotism.
Non-Latin munitieg,
As general rule, may be taken for granted that not Dissolution only the Latin and Hernican national confederations —as °fnatlonal to which the fact expressly stated —but all such confede
rations subsisting in Italy, and the Samnite and Lucanian
leagues in particular, were legally dissolved or at any rate
reduced to insignificance, and that in general no Italian community was allowed the right of acquiring property or
of intermarriage, or even the right of joint consultation and resolution, with any other. Further, provision must have Fumlshlnf been made, under different forms, for placing the military L^'"1*
is
it
a
(i. 5),
;
(i. (p.
a (L
System of govern-
54
UNION OF ITALY book n
and financial resources of all the Italian communities at the disposal of the leading community. Although the burgess militia " on the one hand, and the contingents of the " Latin name on the other, were still regarded as the main and integral constituents of the Roman army, and in that way
its national character was on the whole preserved, the Roman cives sine suffragio were called forth to join its ranks, and not only so, but beyond doubt the non-Latin federate communities also were either bound to furnish ships of war, as was the case with the Greek cities, or were placed on the roll of contingent-furnishing Italians (formula togatorum), as must have been ordained at once or gradually in the case of the Apulians, Sabellians, and Etruscans. In general this contingent, like that of the Latin communities, appears to have had its numbers definitely fixed, although, in case of necessity, the leading community was not
from making a larger requisition. This at the same time involved an indirect taxation, as every community was bound itself to equip and to pay its own contingent Accordingly it was not without design that the supply of the most costly requisites for war devolved chiefly on the Latin, or non-Latin federate communities; that the war marine was for the most part kept up by the Greek cities ; and that in the cavalry service the allies, at least subsequently, were called upon to furnish a proportion thrice as numerous as the Roman burgesses, while in the infantry the old principle, that the contingent of the allies should not be more numerous than the burgess army, still remained in force for a long time at least as the rule.
The system, on which this fabric was constructed and kept together, can no longer be ascertained in detail from the few notices that have reached us. Even the numerical proportions of the three classes of subjects relatively to each other and to the full burgesses, can no longer be
precluded
chap, vii UNION OF ITALY
55
determined even approximately ; * and in like manner the geographical distribution of the several categories over Italy is but imperfectly known. The leading ideas on which the structure was based, on the other hand, are so obvious that it is scarcely necessary specially to set them forth. First of all, as we have already said, the immediate circle of the ruling community was extended—partly by the settlement of full burgesses, partly by the conferring of passive burgess -rights — as far as was possible without completely decentralizing the Roman community, which
1 It is to be regretted that we are unable to give satisfactory information
as to the proportional numbers. We may estimate the number of Roman burgesses capable of bearing arms in the later regal period as about 20,000 123). Now from the fall of Alba to the conquest of Veii the immediate territory of Rome received no material extension in perfect accordance with which we find that from the first institution of the twenty-
one tribes about 259 360), which involved no, or at any rate no con- 495. siderable, extension of the Roman bounds, no new tribes were instituted
till 367. However abundant allowance we make for increase by the 387. excess of births over deaths, by immigration, and by manumissions,
absolutely impossible to reconcile with the narrow limits of a territory of hardly 650 square miles the traditional numbers of the census, according
to which the number of Roman burgesses capable of bearing arms in the second half of the third century varied between 104,000 and 150,000, and
362, regarding which a special statement extant, amounted to 152,573- 392. These numbers must rather stand on a parallel with the 84,700 burgesses
of the Servian census and in general the whole earlier census-lists, carried
back to the four lustres of Servius Tullius and furnished with copious numbers, must belong to the class of those apparently documentary tradi
tions which delight in, and betray themselves by the very fact of, such numerical details.
It was only with the second half of the fourth century that the large extensions of territory, which must have suddenly and considerably augmented the burgess roll, began. It reported on trustworthy authority and intrinsically credible, that about 416 the Roman burgesses 838. numbered 165,000; which very well agrees with the statement that ten
years previously, when the whole militia was called out against Latium and the Gauls, the first levy amounted to ten legions, that is, to 50,000 men. Subsequently to the great extensions of territory in Etruria, Latium, and Campania, in the fifth century the effective burgesses numbered, on an average, 250,000 immediately before the first Punic war, 280,000 to 290,000. These numbers are certain enough, but they are not quite available historically for another reason, namely, that in them probably the Roman full burgesses and the "burgesses without vote" not serving, like the Campanians, in legions of their own, —such, e. g. , as the Caerites, — are included together in the reckoning, while the latter must at any rate. defacto be counted among the subjects {Rom. Forsch. ii, 396).
;
;
is
is
in
is
it is
(i.
;
(i.
Division and classi fication
of the subjects.
was an urban one and was intended to remain so. When the system of incorporation was extended up to and perhaps even beyond its natural limits, the communities that were subsequently added had to submit to a position of subjection ; for a pure hegemony as a permanent relation was intrinsically impossible. Thus not through any arbitrary monopolizing of sovereignty, but through the inevitable force of circumstances, by the side of the class of ruling burgesses a second class of subjects took its place. It was one of the primary expedients of Roman rule to subdivide the governed by breaking up the Italian con federacies and instituting as large a number as possible of comparatively small communities, and to graduate the pressure of that rule according to the different categories of subjects. As Cato in the government of his household took care that the slaves should not be on too good terms with one another, and designedly fomented variances and factions among them, so the Roman community acted on a great scale. The expedient was not generous, but it was effectual.
It was but a wider application of the same expedient, when in each dependent community the constitution was remodelled after the Roman pattern and a government of the wealthy and respectable families was installed, which was naturally more or less keenly opposed to the multitude and was induced by its material interests and by its wish for local power to lean on Roman support. The most remarkable instance of this sort is furnished by the treatment of Capua, which appears to have been from the first treated with suspicious precaution as the only Italian c». y that could come into possible rivalry with Rome. The Campanian nobility received a privileged jurisdiction, separate places of assembly, and in every respect a distinct ive position ; indeed they even obtained not inconsiderable pensions—sixteen hundred of them at 450 stateres (about
56
UNION OF ITALY BOOK II
Aristo cratic re modelling of the con stitutions of the Italian communi ties.
chap, vii UNION OF ITALY
57
annually —charged on the Campanian exchequer.
It was these Campanian equites, whose refusal to take part
in the great Latino-Campanian insurrection of 414 mainly 840. contributed to its failure, and whose brave swords decided
the day in favour of the Romans at Sentinum in 459 295,
489); whereas the Campanian infantry at Rhegium
was the first body of troops that in the war with Pyrrhus revolted from Rome 18). Another remarkable instance of the Roman practice of turning to account for their own interest the variances between the orders in the dependent communities favouring the aristocracy, furnished by the treatment which Volsinii met with in 489. 26ft. There, just as Rome, the old and new burgesses must have stood opposed to one another, and the latter must have attained legal means equality of political rights.
In consequence of this the old burgesses of Volsinii resorted
to the Roman senate with request for the restoration of their old constitution — step which the ruling party in the
city naturally viewed as high treason, and inflicted legal punishment accordingly on the petitioners. The Roman senate, however, took part with the old burgesses, and, when the city showed no disposition to submit, not only destroyed by military violence the communal constitution
of Volsinii which was In recognized operation, but also,
razing the old capital of Etruria, exhibited to the Italians fearfully palpable proof of the mastery of Rome.
But the Roman senate had the wisdom not to overlook Modera- the fact, that the only means of giving permanence to ~vem- despotism moderation on the part of the despots. On menu that account there was left with, or conferred on, the
£30)
communities an autonomy, which included shadow of independence, special share in the military and political successes of Rome, and above all free communal constitution —so far as the Italian confederacy extended, there existed no community of Helots. On that account
dependent
a
a
a
a
by
(p.
is
aaby is
by
in
(i.
Inter mediate function aries.
also Rome from the very first, with a clear-sightedness and magnanimity perhaps unparalleled in history, waived the most dangerous of all the rights of government, the right of taxing her subjects. At the most tribute was perhaps imposed on the dependent Celtic cantons : so far as the Italian confederacy extended, there was no tributary com munity. On that account, lastly, while the duty of bearing arms was partially devolved on the subjects, the ruling burgesses were by no means exempt from it ; it is probable that the latter were proportionally far more numerous than the body of the allies ; and in that body, again, probably the Latins as a whole were liable to far greater demands upon them than the non-Latin allied communities. There was thus a certain reasonableness in the appro priation by which Rome ranked first, and the Latins next to her, in the distribution of the spoil acquired in war.
The central administration at Rome solved the difficult problem of preserving its supervision and control over the mass of the Italian communities liable to furnish contin gents, partly by means of the four Italian quaestorships, partly by the extension of the Roman censorship over the
whole of the dependent communities. The quaestors of the fleet (p. 45), along with their more immediate duty, had to raise the revenues from the newly acquired domains and to control the contingents of the new allies ; they were the first Roman functionaries to whom a residence and district out of Rome were assigned by law, and they formed the necessary intermediate authority between the Roman senate and the Italian communities. Moreover, as is shown by
the later municipal constitution, the chief functionaries in every Italian community,1 whatever might be their title, had to undertake a valuation every fourth or fifth year—an
1 Not merely in every Latin one; for the censorship or so-called quinquennalitas occurs, as is well known, also among communities whose constitution was not formed according to the Latin scheme.
Valuation of the empire.
58
UNION OF ITALY book n
chap, vii UNION OF ITALY
59
institution, the suggestion of which must necessarily have emanated from Rome, and which can only have been intended to furnish the senate with a view of the resources in men and money of the whole of Italy, corresponding to the census in Rome.
Lastly, with this military administrative union of the
Italy whole peoples dwelling to the south of the Apennines, as j^TM
far as the Iapygian promontory and the straits of Rhegium, was connected the rise of a new name common to them all —that of "the men of the toga" (togati), which was their oldest designation in Roman state law, or that of the "Italians," which was the appellation originally in use among the Greeks and thence became universally current The various nations inhabiting those lands were probably first led to feel and own their unity, partly through their common contrast to the Greeks, partly and mainly through their common resistance to the Celts ; for, although an Italian community may now and then have made common cause with the Celts against Rome and employed the opportunity to recover independence, yet in the long run sound national feeling necessarily prevailed. As the " Gallic field " down to a late period stood contrasted in law with the Italian, so the " men of the toga " were thus named in contrast to the Celtic "men of the hose"
and it is probable that the repelling of the Celtic invasions played an important diplomatic part as a reason or pretext for centralizing the military resources of Italy in the hands of the Romans. Inasmuch as the Romans on the one hand took the lead in the great national struggle and on the other hand compelled the Etruscans, Latins, Sabellians, Apulians, and Hellenes (within the bounds to be immediately described) alike to fight under their standards, that unity, which hitherto had been undefined and latent rather than expressed, obtained firm consolidation and recognition in state law; and the
(braccati);
Earliest boundaries of the
Italian confeder acy.
6o UNION OF ITALY BOOK II
name Italia, which originally and even in the Greek authors of the fifth century —in Aristotle for instance — pertained only to the modern Calabria, was transferred to the whole land of these wearers of the toga.
The earliest boundaries of this great armed confederacy led by Rome, or of the new Italy, reached on the western coast as far as the district of Leghorn south of the Arnus,1 on the east as far as the Aesis north of Ancona. The townships colonized by Italians, lying beyond these limits, such as Sena Gallica and Ariminum beyond the Apennines, and Messana in Sicily, were reckoned geographically as situated out of Italy — even when, like Ariminum, they were members of the confederacy or even, like Sena, were Roman burgess communities. Still less could the Celtic cantons beyond the Apennines be reckoned among the togati, although perhaps some of them were already among the clients of Rome.
The new Italy had thus become a political unity ; it was also in the course of becoming a national unity. Already the ruling Latin nationality had assimilated to itself the Sabines and Volscians and had scattered isolated Latin communities over all Italy; these germs were merely developed, when subsequently the Latin language became the mother-tongue of every one entitled to wear the Latin toga. That the Romans already clearly recognized this as their aim, is shown by the familiar extension of the Latin name to the whole body of contingent-furnishing Italian allies. 2 Whatever can still be recognized of this grand
1 This earliest boundary is probably indicated by the two small town ships Adfines, of which one lay north of Arezzo on the road to Florence, the second on the coast not far from Leghorn. Somewhat further to the south of the latter, the brook and valley of Vada are still called Fin me delta
First steps towards the Latin izing of Italy.
fine, Valle deltafine (Targioni Tozzetti, Viaggj, iv. 430).
9 In strict official language, indeed, this was not the case. The fullest 111. designation of the Italians occurs in the agrarian law of 643, line ai ;— \ceivis] Romanus sociumve ntminisve L. atini, quibus ex formula togatorum [milita in terra Italia imperare soleni] ; in like manner at the 29th line
of the same the peregrinus is distinguished from the Latimus, and In the
chap, vil UNION OF ITALY 61
politir. il structure testifies to the great political sagacity of
its nameless architects ; and the singular cohesion, which
that confederation composed of so many and so diversified ingredients subsequently exhibited under the severest
shocks, stamped their great work with the seal of success.
From the time when the threads of this net drawn as New skilfully as firmly around Italy were concentrated in the Posltion<rf hands of the Roman community, it was a great power, and a great took its place in the system of the Mediterranean states in Power- the room of Tarentum, Lucania, and other intermediate
and minor states erased by the last wars from the list of political powers. Rome received, as it were, an official recognition of its new position by means of the two solemn embassies, which in 481 were sent from Alexandria to 273. Rome and from Rome to Alexandria, and which, though primarily they regulated only commercial relations, beyond doubt prepared the way for a political alliance. As Carthage was contending with the Egyptian government regarding Cyrene and was soon to contend with that of Rome regarding Sicily, so Macedonia was contending with
the former for the predominant influence in Greece, with the latter proximately for the dominion of the Adriatic coasts. The new struggles, which were preparing on all sides, could not but influence each other, and Rome, as mistress of Italy, could not fail to be drawn into the wide arena which the victories and projects of Alexander the Great had marked out as the field of conflict for his successors.
decree of the senate as to the Bacchanalia in 568 the expression is used : 186. ne quis ceivis Romanus neve nominis Latini neve socium quisquam. But
in common use very frequently the second or third of these three sub divisions is omitted, and along with the Romans sometimes only those Latini nominis are mentioned, sometimes only the socii (Weissenborn on
I. iv. xxii. 50, 6), while there is no difference in the meaning. The designation homines nominis Latini ac socii Italici (Sallust. Jug. 40), correct as it is in itself, is foreign to the official usui loquendi, which knows Italia, but not Italici.
LAW— RELIGION— MILITARY SYSTEM book u
CHAPTER VIII
LAW RELIGION MILITARY SYSTEM CONDITION NATIONALITY
ECONOMIC
Develop- jN
law.
Police.
the development which law underwent during this period within the Roman community, probably the most important material innovation was that peculiar control which the community itself, and in a subordinate
its office-bearers, began to exercise over the manners and habits of the individual burgesses. The germ of it is to be sought in the right of the magistrate to inflict property-fines (multae) for offences against order 192). In the case of all fines of more than two sheep and thirty oxen or, after the cattle-fines had been the decree of the people
480. in 324 commuted into money, of more than 3020 libral asses 0£3o), the decision soon after the expulsion of the kings passed by way of appeal into the hands of the community 320); and thus procedure by fine acquired an importance which was far from originally possessing. Under the vague category of offences against order men might include any accusations they pleased, and by the higher grades in the scale of fines they might accomplish whatever they desired. The dangerous character of such
was brought to light rather than obviated the mitigating proviso, that these property- fines, where they were not fixed law at definite sum,
should not amount to half the estate belonging to the
arbitrary procedure
degree
by
by
(i.
a
by
(i.
it
chap, viii ECONOMIC CONDITION— NATIONALITY
63
person fined. To this class belonged the police-laws, which from the earliest times were especially abundant in the Roman community. Such were those enactments of the Twelve Tables, which prohibited the anointing of a dead body by persons hired for the purpose, the dressing it out with more than one cushion or more than three purple- edged coverings, the decorating it with gold or gaudy chaplets, the use of dressed wood for the funeral pile, and the perfuming or sprinkling of the pyre with frankincense or myrrh-wine ; which limited the number of flute-players in the funeral procession to ten at most ; and which forbade
wailing women and funeral banquets—in a certain measure the earliest Roman legislation against luxury. Such also were the laws—originating in the conflicts of the orders— directed against usury as well as against an undue use of the common pasture and a disproportionate appropriation of the occupiable domain-land. But far more fraught with danger than these and similar fining-laws, which at any rate formulated once for all the trespass and often also the measure of punishment, was the general prerogative of
every magistrate who exercised jurisdiction to inflict a fine for an offence against order, and, if the fine reached the amount necessary to found an appeal and the person fined did not submit to the penalty, to bring the case before the community. Already in the course of the fifth century quasi-criminal proceedings had been in this way instituted against immorality of life both in men and women, against the forestalling of grain, witchcraft, and similar matters. Closely akin to this was the quasi-jurisdiction of the censors, which likewise sprang up at this period. They were invested with authority to adjust the Roman budget and the burgess-roll, and they availed themselves of partly to impose of their own accord taxes on luxury which differed only in form from penalties on partly to abridge or withdraw the political privileges of the burgess who was
it,
it,
Modifica- thetawi
64
LAW— RELIGION— MILITARY SYSTEM book ll
reported to have been guilty of any infamous action i. 406). The extent to which this surveillance was already carried is shown by the fact that penalties of this nature were inflicted for the negligent cultivation of a man's own land, and that such a man as Publius Cornelius
290. 277. Rufinus (consul in 464, 477) was struck off the list of 275. senators by the censors of 479, because he possessed silver plate to the value of 3360 sesterces (^34). No doubt,
according to the rule generally applicable to the edicts of magistrates 335), the sentences of the censors had legal force only during their censorship, that on an average for the next five years, and might be renewed or not by the next censors at pleasure. Nevertheless this censorial prerogative was of so immense importance, that in virtue of the censorship, originally subordinate
400).
and much evil, and we do not mean to combat the view of those who hold that the evil preponderated. But we must not forget that—amidst the morality external certainly but stern and energetic, and the powerful enkindling of public spirit, that were the genuine characteristics of this period — these institutions remained exempt as yet from any really base misuse; and they were the chief instruments in repressing individual freedom, they were also the means by which the public spirit and the good old manners and order of the Roman community were with might and main upheld.
Along with these changes humanizing and moderniz- m8 tendency showed itself slowly, but yet clearly enough,
the development of Roman law. Most of the enact
became in rank and consideration the first of all
375, The government of the senate rested essentially on this twofold police control supreme and subordinate, vested in the community and its officials, and furnished with powers as extensive as they were arbitrary. Like every such arbitrary government, was productive of much good
magistracy,
in
a
if
it
(i.
it
a
is
(i.
chap, vin ECONOMIC CONDITION— NATIONALITY
65
ments of the Twelve Tables, which coincide with the laws of Solon and therefore may with reason be considered as in substance innovations, bear this character ; such as the securing the right of free association and the autonomy of the societies that originated under it ; the enactment that forbade the ploughing up of boundary-balks ; and the mitigation of the punishment of theft, so that a thief not caught in the act might henceforth release himself from the plaintiffs suit by payment of double compensation. The law of debt was modified in a similar sense, but not till upwards of a century afterwards, by the Poetelian law
The right freely to dispose of property, which according to the earliest Roman law was accorded to the owner in his lifetime but in the case of death had hitherto been conditional on the consent of the community, was liberated from this restriction, inasmuch as the law of the Twelve Tables or its interpretation assigned to the private testament the same force as pertained to that confirmed in the curies. This was an important step towards the break ing up of the clanships, and towards the full carrying out of individual liberty the disposal of property. The fearfully absolute paternal power was restricted by the enactment, that son thrice sold by his father should not relapse into his power, but should thenceforth be free to which — by legal inference that, strictly viewed, was no doubt absurd—was soon attached the possibility that father might voluntarily divest himself of dominion over his son by emancipation. In the law of marriage civil marriage was permitted 112); and although the full marital power was associated as necessarily with true civil as with true religious marriage, yet the permission of connection instead of marriage 73, note), formed without that power, constituted first step towards relaxa tion of the full power of the husband. The first step towards legal enforcement of married life was the tax on
389).
vol. 11
37
a a
a
(i. a
(i.
a
a
a
in
a;
(i.
66 LAW— RELIGION— MILITARY SYSTEM book ii
old bachelors (aes uxorium), with the introduction of 408. which Camillus began his public career as censor in 351.
Adminis- Changes more comprehensive than those effected in
° justice.
Code of common
the 'aw *tse^ were introduced into — what was more import ant in a political point of view, and more easily admitted of alteration —the system of judicial administration. First ^ ^ came the important limitation of the supreme judicial power by the embodiment of the common law in a written code, and the obligation of the magistrate thenceforth to decide no longer according to varying usage, but according to the written letter, in civil as well as in criminal pro-
451. 450. cedure (303, 304). The appointment of a supreme magistrate in Rome exclusively for the administration of
867. justice in 387 383), and the establishment of separate New police functionaries which took place contemporaneously
function- anes.
m Rome, and was imitated under Roman influence in all
the Latin communities
and precision of justice. These police-magistrates or aediles had, of course, certain jurisdiction at the same time assigned to them. On the one hand, they were the ordin ary civil judges for sales concluded in open market, for the cattle and slave markets in particular; and on the other hand, they ordinarily acted in processes of fines and
amercements as judges of first instance or—which was in Roman law the same thing—as public prosecutors. In consequence of this the administration of the laws impos ing fines, and the equally indefinite and politically import ant right of fining in general, were vested mainly in them. Similar but subordinate functions, having especial reference to the poorer classes, pertained to the three night- or blood- masters (ires viri nocturni or capitales), first nominated in
383, 452), secured greater speed
289. 465 they were entrusted with the duties of nocturnal police as regards fire and the public safety and with the superintendence of executions, with which certain summary jurisdiction was very soon, perhaps even from
a
;
a
(L
(i.
chap, Vlll ECONOMIC CONDITION—NATIONALITY
67
the outset, associated. 1 Lastly from the increasing extent of the Roman community it became necessary, out of re gard to the convenience of litigants, to station in the more remote townships special judges competent to deal at least with minor civil causes. This arrangement was the rule for the communities of burgesses sine suffragio (p. 49), and was perhaps even extended to the more remote communities of full burgesses,8 —the first germs of a Romano-municipal jurisdiction developing itself by the side of that which was strictly Roman.
In civil procedure (which, however, according to the Changes in ideas of that period included most of the crimes committed proce ur& against fellow-citizens) the division of a process into the settlement of the question of law before the magistrate
(ius), and the decision of the question of fact by a private
person nominated by the magistrate (judicium) —a division
doubtless customary even in earlier times — was on the
abolition of the monarchy prescribed by law 322) and
to that separation the private law of Rome was mainly
indebted for its logical clearness and practical precision. *
The view formerly adopted, that these tres viri belonged to the earliest period, erroneous, for colleges of magistrates with odd numbers are foreign to the oldest state-arrangements (Chronol. p. 15, note 12).
Probably the well-accredited account, that they were first nominated
in 465 (Liv. Ep. 11), should simply be retained, and the otherwise 289. suspicious inference of the falsifier Licinius Macer (in Liv. vii. 46), which makes mention of them before 450, should be simply rejected. At first SOI. undoubtedly the tres viri were nominated by the superior magistrates, as
was the case with most of the later magistrates minores; the Papirian pUHscitum, which transferred the nomination of them to the community (Festus, v. sacrament urn, p. 344, Mull. ), was at any rate not issued till
after the institution of the office of praetor peregrinus, or at the earliest towards the middle of the sixth century, for names the praetor qui inter
cives ius dicit.
This inference suggested by what Livy says (ix. 20) as to the re organization of the colony of Antium twenty years after was founded and self-evident that, while the Romans might very well impose on the inhabitant of Ostia the duty of settling all his lawsuits in Rome, the same course could not be followed with townships like Antium and Sena.
People are in the habit of praising the Romans as a nation specially privileged in respect to jurisprudence, and of gazing with wonder on their admirable law as a mystical gift of heaven presumably by way of speci-
,--
;
it
**1 it
is
it
(i. ;
;
is
is
68 LAW— RELIGION— MILITARY SYSTEM book ii
In actions regarding property, the decision as to what constituted possession, which hitherto had been left to the arbitrary caprice of the magistrate, was subjected gradually to legal rules ; and, alongside of the law of property, a law of possession was developed — another step, by which the magisterial authority lost an important part of its powers. In criminal processes, the tribunal of the people, which hitherto had exercised the prerogative of mercy, became a court of legally secured appeal. If the accused after hearing (guaestio) was condemned by the magistrate and appealed to the burgesses, the magistrate proceeded in presence of these to the further hearing (anquisitio), and, when he after three times discussing the matter before the community had repeated his decision, in the fourth diet the sentence was confirmed or rejected by the burgesses. Modification was not allowed. A similar republican spirit breathed in the principles, that the house protected the
burgess, and that an arrest could only take place out of doors; that imprisonment during investigation was to be avoided ; and that it was allowable for every accused and not yet condemned burgess by renouncing his citizenship to withdraw from the consequences of condemnation, so far as they affected not his property but his person — prin
ally excusing themselves for the worthlessness of their own legal system. A glance at the singularly fluctuating and undeveloped criminal law of the Romans might show the untenableness of ideas so confused even to those who may think the proposition too simple, that a sound people has a sound law, and a morbid people an unsound. Apart from the more general political conditions on which jurisprudence also, and indeed juris prudence especially, depends, the causes of the excellence of the Roman civil law lie mainly in two features : first, that the plaintiff and defendant were specially obliged to explain and embody in due and binding form the grounds of the demand and of the objection to comply with it ; and secondly, that the Romans appointed a permanent machinery for the edictal development of their law, and associated it immediately with practice. By the former the Romans precluded the pettifogging practices of advocates, by the latter they obviated incapable law-making, so far as such things can be prevented at all ; and by means of both in conjunction they satisfied, as far as is possible, the two conflicting requirements, that law shall constantly be fixed, and that it shall constantly be in accordance with the spirit of the age.
chap, viii ECONOMIC CONDITION—NATIONALITY
69
ciples, which certainly were not embodied in formal laws and accordingly did not legally bind the prosecuting magistrate, but yet were by their moral weight of the greatest influence, particularly in limiting capital punish ment But, if the Roman criminal law furnishes a remark able testimony to the strong public spirit and to the increasing humanity of this epoch, it on the other hand suffered in its practical working from the struggles between the orders, which in this respect were specially baneful. The co-ordinate primary jurisdiction of all the public
in criminal cases, that arose out of these conflicts 354), led to the result, that there was no longer any fixed authority for giving instructions, or any serious preliminary investigation, in Roman criminal pro cedure. And, as the ultimate criminal jurisdiction was exercised in the forms and by the organs of legislation, and never disowned its origin from the prerogative of mercy as, moreover, the treatment of police fines had an injurious reaction on the criminal procedure which was externally very similar; the decision in criminal causes was pro nounced —and that not so much by way of abuse, as in some degree by virtue of the constitution —not according to fixed law, but according to the arbitrary pleasure of the judges. In this way the Roman criminal procedure was completely void of principle, and was degraded into the sport and instrument of political parties; which can the less be excused, seeing that this procedure, while especially applied to political crimes proper, was applicable also to others, such as murder and arson. The evil was aggravated
the clumsiness of that procedure, which, in concert with the haughty republican contempt for non-burgesses, gave rise to growing custom of tolerating, side by side with the more formal process, summary criminal, or rather police, procedure against slaves and common people. Here too the passionate strife regarding political processes
magistrates
a
a
by
;
(i.
Religion.
overstepped natural limits, and introduced institutions which materially contributed to estrange the Romans step by step from the idea of a fixed moral order in the administration of justice.
We are less able to trace the progress of the religious conceptions of the Romans during this epoch. In general they adhered with simplicity to the simple piety of their ancestors, and kept equally aloof from superstition and
70
LAW— RELIGION— MILITARY SYSTEM book ii
New gods, from unbelief. How vividly the idea of spiritualizing all earthly objects, on which the Roman religion was based, still prevailed at the close of this epoch, is shown by the new " God of silver " (Argentinus), who presumably came into existence only in consequence of the introduction of
269. the silver currency in 485, and who naturally was the son of the older " God of copper " (Aesculanus).
The relations to foreign lands were the same as hereto fore ; but here, and here especially, Hellenic influences were on the increase. It was only now that temples began to rise in Rome itself in honour of the Hellenic gods. The oldest was the temple of Castor and Pollux, which had been vowed in the battle at lake Regillus 438) and was
485. consecrated on 15th July 269.
