No More Learning

The family formed an unity. It consisted of the free man who upon his father’s death had become his own master, and the spouse whom the priests by the ceremony of the sacred salted cake (confarreatio) had solemnly wedded to share with him water and fire, with their sons and sons’ sons and the lawful wives of these, and their unmarried daughters and sons’ daughters, along with all goods and substance pertaining to any of its members. The children of daughters on the other hand were excluded, because, if born in wedlock, they belonged to the family of the husband; and if begotten out of wedlock, they had no
ORIGINAL CONSTITUTION OF ROME 300K 1
The house father and his house hold.
CHAP. v ORIGINAL CONSTITUTION OF ROME
73
place in a family at all. To the Roman citizen a house of his own and the blessing of children appeared the end and essence of life. The death of the individual was not an evil, for it was a matter of necessity; but the extinction of a household or of a clan was injurious to the community itself, which in the earliest times therefore opened up to the childless the means of avoiding such a fatality by their adopting the children of others as their own.
The Roman family from the first contained within it the conditions of a higher culture in the moral adjustment of the mutual relations of its members. Man alone could be head of a family. Woman did not indeed occupy a position inferior to man in the acquiring of property and money; on the contrary the daughter inherited an equal share with her brother, and the mother an equal share with her children. But woman always and necessarily belonged to
the household, not to the community; and in the house hold itself she necessarily held a position of domestic sub jection-the daughter to her father, the wife to her hus band,1 the fatherless unmarried woman to her nearest male relatives; it was by these, and not by the king, that in case of need woman was called to account. Within the house, however, woman was not servant but mistress. Exempted from the tasks of corn-grinding and cooking which according to Roman ideas belonged to the menials, the Roman house wife devoted herself in the main to the superintendence of
1 This was not merely the case under the old religious marriage (matrimonium canfarrmtione); the civil marriage also (malrimonium cartrenru), although not in itself giving to the husband proprietary power over his wife, opened up the way for his acquiring this proprietary power, inasmuch as the legal ideas of “formal delivery" (coemflio), and
" prescription " (um), were applied without ceremony to such a marriage. Till he acquired it, and in particular therefore during the period which elapsed before the completion of the prescription, the wife was (just as in the later marriage by caums probatia, until that took place), not uxor, but
I completed system the principle maintained its ground, that the wife who
pro uzore. Down to the period when Roman jurisprudence became was not in her husband's power was not a married wife, but only passed
ll
such taruummodo llahtur. Cicero, Top. 3, (uxor
14).
14
ORIGINAL CONSTITUTION OF ROME BOOK 1
her maid-servants, and to the accompanying labours of the distaff, which was to woman what the plough was to man. 1 In like manner, the moral obligations of parents towards their children were fully and deeply felt by the Roman nation; and it was reckoned a heinous offence if a father neglected or corrupted his child, or if he even squandered his property to his child’s disadvantage.
In a legal point of view, however, the family was abso lutely guided and governed by the single all-powerful will of the “father of the household ” (pater familiar). In relation to him all in the household were destitute of legal rights-the wife and the child no less than the bullock or the slave. As the virgin became by the free choice of her husband his wedded wife, so it rested with his own free will to rear or not to rear the child which she bore to him. This maxim was not suggested by indifference to the pos session of a family; on the contrary, the conviction that the founding of a house and the begetting of children were a moral necessity and a public duty had a deep and earnest hold of the Roman mind Perhaps the only instance of support accorded on the part of the community in Rome
1 The following epitaph, although belonging to a much later paiod, Is not unworthy to have a place here. It is the stone that speaks :—
Harper, quad deim, paullum est. Asia ac )elh'ge. Heir erf szpulcrum baudpulcrum pulcraifminac, Namcn parentss nominarunt Claudiain,
Suam mareitum mra'e dilexit r0110,
Gnator duos creaz/it, llorunc allerum
in term linquit, alium rub terra local; Sermon: lepido, tum autem incest-u commode, Domum rerz/avit, lanamfecil. Dixi. Abzi.
(Corp. Irmr. Lot. 1007. )
Still more characteristic, perhaps, is the introduction of wool-spinning among purely moral qualities; which is no very unusual occurrence in Roman epitaphs. Orelli, 4639: optima ef pulclterrima, lanifica pie
)udicd frugi cal-ta domireda. Orelli, 4861: modeslia prabitatz pudicitia abreguio lmuficio dilrlgentiaflde par rimilirque cstzreir prnbeirfeminafilil. Epitaph of Turia, r. 30: domestica berm pudizilias, opsequi, comitaiir, facili~ tatir, lanzficiir [tuir adsiduitalir, reh'gionir] sine superstitions, nrnatus m mnrpiciendi, rultus modici.
CHAP- v ORIGINAL CONSTITUTION OF ROME
75
is the enactment that aid should be given to the father who had three children presented to him at a birth; while their ideas regarding exposure are indicated by the prohibition of it so far as concerned all the sons-deformed births excepted—and at least the first daughter. Injurious, how ever, to the public weal as exposure might appear, the prohibition of it soon changed its form from that of legal punishment into that of religious curse ; for the father was, above all, thoroughly and absolutely master in his household. The father of the household not only maintained the strictest discipline over its members, but he had the right and duty of exercising judicial authority over them and of punishing them as he deemed fit in life and limb. The grown-up son might establish a separate household or, as the Romans expressed maintain his “own cattle” (pemlium) assigned to him by his father; but in law all that the son acquired, whether by his own labour or by gift from stranger, whether in his father’s household or in his own, remained the father’s property. So long as the father lived, the persons legally subject to him could never hold property of their own, and therefore could not alienate unless by him so empowered, or yet bequeath. In this respect wife and child stood quite on the same level with the slave, who was not unfrequently allowed to manage household of his own, and who was likewise entitled to alienate when commissioned by his master. Indeed father might convey his son as well as his slave in property to third person: the purchaser was foreigner, the son
became his slave; he was a Roman, the son, while as Roman he could not become Roman’s slave, stood at least to his purchaser in slave’s stead (in manczjpii wasd).
The paternal and marital power was subject to legal restriction, besides the one already mentioned on the right of exposure, only in so far as some of the worst abuses were visited by legal punishment as well as by religious
a
if if a
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aaa
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it,
76
ORIGINAL CONSTITUTION OF ROME 800! I
curse. Thus these penalties fell upon the man who sold his wife or married son; and it was a matter of family usage that in the exercise of domestic jurisdiction the father, and still more the husband, should not pronounce sentence on child or wife without having previously consulted the nearest blood-relatives, his wife’s as well as his own. But the latter arrangement involved no legal diminution of power, for the blood-relatives called in to the domestic judgment had not to judge, but simply to advise the father of the household in judging.
But not only was the power of the master of the house substantially unlimited and responsible to no one on earth; it was also, as long as he lived, unchangeable and inde structible. According to the Greek as well as Germanic laws the grown-up son, who was practically independent of his father, was also independent legally; but the power of the Roman father could not be dissolved during his life either by age or by insanity, or even by his own free will,
excepting only that the person of the holder of the power might change, for the child might certainly pass by way of adoption into the power of another father, and the daughter might pass by a lawful marriage out of the hand of her father into the hand of her husband and, leaving her own
gens and the protection of her own god to enter into the gem of her husband and the protection of his god, became thenceforth subject to him as she had hitherto been to her father. According to Roman law it was made easier for the slave to obtain release from his master than for the son
to obtain release from his father; the manumission of the former was permitted at an early period, and by simple forms ; the release of the latter was only rendered possible at a much later date, and by very circuitous means. In deed, if a master sold his slave and a father his son and the purchaser released both, the slave obtained his freedom, but the son by the release simply reverted into his father's
CHAP- v ORIGINAL CONSTITUTION OF ROME
77
power as before. Thus the inexorable consistency with which the Romans carried out their conception of the paternal and marital power converted it into a real right of property.
Closely, however, as the power of the master of the household over wife and child approximated to his pro prietary power over slaves and cattle, the members of the family were nevertheless separated by a broad line of dis tinction, not merely in fact but in law, from the family property. The power of the house-master-even
apart from the fact that it appeared in operation only within the
house-was of a transient, and in some degree of a re
character. Wife and child did not exist merely for the house-father’s sake in the sense in which
exists only for the proprietor, or in which the subjects of an absolute state exist only for the king; they were the objects indeed of a legal right on his part, but they had at the same time capacities of right of their own ; they were not things, but persons. Their rights were dormant in respect of exercise, simply because the unity of the household demanded that it should be governed by a single representative; but when the master of the house hold died, his sons at once came forward as its masters and now obtained on their own account over the women and children and property the rights hitherto exercised over these by the father. On the other hand the death of the master occasioned no change in the legal position of the slave.
presentative,
property
So strongly was the unity of the family realized, that
even the death of the master of the house did not entirely and clan dissolve it. The descendants, who were rendered by that (gens). occurrence independent, regarded themselves as still in
an unity; a principle which was made use of in arranging the succession of heirs and in many other relations, but especially in regulating the position of the widow and unmarried daughters. As according to the
many respects
Family
Depend ents of the house hold.
78
ORIGINAL CONSTITUTION OF ROME BOOK \
older Roman view a woman was not capable of having power either over others or over herself, the power over her, or, as it was in this case more mildly expressed, the “guardianship” (tute/a) remained with the house to which she belonged, and was now exercised in the room of the deceased house-master by the whole of the nearest male members of the family ; ordinarily, therefore, by sons over their mother and by brothers over their sisters. In this sense the family, once founded, endured unchanged till the male stock of its founder died out ; only the bond of con nection must of course have become practically more lax from generation to generation, until -at length it became
to prove the original unity. On this, and on this alone, rested the distinction between family and clan, or, according to the Roman expression, between agnati and gentiles. Both denoted the male stock; but the family embraced only those individuals who, mounting up from generation to generation, were able to set forth the suc
cessive steps of their descent from a common progenitor; the clan (gens) on the other hand comprehended also those who were merely able to lay claim to such descent from a common ancestor, but could no longer point out fully the intermediate links so as to establish the degree of their relationship. This is very clearly expressed in the Roman names: when they speak of “Quintus, son of Quintus, grandson of Quintus and so on, the Quintian,” the family reaches as far as the ascendants are designated individuallyI and where the family terminates the clan is introduced supplementarily, indicating derivation from the common ancestor who has bequeathed to all his descendants the name of the “children of Quintus. ”
To these strictly closed unities-the family or household united under the control of a living master, and the clan which originated out of the breaking-up of such households -there further belonged the dependents or “listeners”
impossible
CHAP- v ORIGINAL CONSTITUTION OF ROME
79
(dienfcr, from duere). This term denoted not the guests, that the members of other similar circles who were temporarily sojourning in another household than their own, and as little the slaves, who were looked upon in law as the property of the household and not as members of but those individuals who, while they were not free burgesses of any commonwealth, yet lived within one in condi tion of protected freedom. These included refugees who had found reception with foreign protector, and those slaves in respect of whom their master had for the time being waived the exercise of his rights, and so conferred on them practical freedom. This relation had not the distinctive character of strict relation de fun, like that of man to his guest: the client remained man non-free, in whose case good faith and use and wont alleviated the condition of non-freedom. Hence the “listeners” of the household (:lientes) together with the slaves strictly so called formed the “ body of servants” (familia) dependent on the will of the “burgess” (patronus, like patrz'cius). Hence according to original right the burgess was entitled partially or wholly to resume the property of the client, to reduce him on emergency once more to the state of slavery, to inflict even capital punishment on him and was simply in virtue of distinction de fade, that these patrimonial rights were not asserted with the same rigour against the client as against the actual slave, and that on the other hand the moral obligation of the master to provide for
his own people and to protect them acquired greater
in the case of the client, who was practically in more free position, than in the case of the slave. Especially must the dc facto freedom of the client have
importance
to freedom de jure in those cases where the relation had subsisted for several generations: when the releaser and the released had themselves died, the domim'um over the descendants of the released person
approximated
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it,
a
a
;
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a
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The Roman com munity.
8O ORIGINAL CONSTITUTION OF ROME BOOK I
could not be without flagrant impiety claimed by the heirs at law of the releaser ; and thus there was gradually formed within the household itself a class of persons in dependent freedom, who were different alike from the slaves and from the members of the gen: entitled in the eye of the law to full and equal rights.
On this Roman household was based the Roman state, as respected both its constituent elements and its form. The community of the Roman people arose out of the junction (in whatever way brought about) of such ancient clanships as the Romilii, Voltinii, Fabii, etc. ; the Roman domain comprehended the united lands of those clans
Whoever belonged to one of these clans was burgess of Rome. Every marriage concluded in the usual forms within this circle was valid as true Roman
marriage, and conferred burgess-rights on the children be gotten of it. Whoever was begotten in an illegal marriage, or out of marriage, was excluded from the membership of the community. On this account the Roman burgesses assumed the name of the “father’s children” (pam'n'1'), inasmuch as they alone in the eye of the law had a father. The clans with all the families that they contained were
incorporated with the state just as they stood. The spheres of the household and the clan continued to subsist within the state; but the position which man held in these did not affect his relations towards the state. The son was subject to the father within the household, but in political duties and rights he stood on footing of equality. The position of the protected dependents was naturally so far changed that the freedmen and clients of every patron
received on his account toleration in the community at large; they continued indeed to be immediately dependent on the protection of the family to which they belonged,
but the very nature of the case implied that the clients of members of the community could not be wholly excluded
45).
a
a
a
a (p.
CHAP. v ORIGINAL CONSTITUTION OF ROME 8!
from its worship and its festivals, although, of course, they were not capable of the proper rights or liable to the proper duties of burgesses. This remark applies still more to the case of the protected dependents of the community at large. The state thus consisted, like the household, of persons properly belonging to it and of dependents—of “ burgesses ” and of “inmates ” or metoea'.
As the clans resting upon a family basis were the con- stituent elements of the state, so the form of the body-politic was modelled after the family both generally and in detail. The household was provided by nature herself with a head in the person of the father with whom it originated, and with whom it perished. But in the community of the people, which was designed to be imperishable, there was no natural master; not at least in that of Rome, which was composed of free and equal husbandmen and could not boast of a nobility by the grace of God. Accordingly one from its own ranks became its “leader” (rex) and lord in the household of the Roman community; as indeed at a ‘later period there were to be found in or near to his dwelling the always blazing hearth and the well-barred store-chamber of the community, the Roman Vesta and the Roman Penates-indications of the visible unity of that supreme household which included all Rome. The regal oflice began at once and by right, when the posi tion had become vacant and the successor had been designated; but the community did not owe full obedience to the king until he had convoked the assembly of freemen
The king
capable of bearing arms and had formally challenged its allegiance. Then he possessed in its entireness that power over the community which belonged to the house-father in his household; and, like him, he ruled for life.
He held intercourse with the gods of the community, whom he con sulted and appeased (auqfizkia publica), and he nominated
all the priests and priestesses. The agreements which VOL. I 6
82 ORIGINAL CONSTITUTION OF ROME BOOK t
he concluded in name of the community with foreigners were binding upon the whole people; although in other instances no member of the community was bound by an agreement with a non-member. His “command” (imperz'um) was all-powerful in peace and in war, on which account “messengers” (lidores, from lirere, to summon) preceded him with axes and rods on all occasions when he appeared oflicially. He alone had the right of publicly addressing the burgesses, and it was he who kept the keys of the public treasury. He had the same right as a father had to exercise discipline and jurisdiction. He inflicted penalties for breaches of order, and, in particular, flogging for military offences. He sat in judgment in all private and in all criminal processes, and decided absolutely regarding life and death as well as regarding freedom; he might hand over one burgess to fill the place of a slave
to another; he might even order a burgess to be sold into actual slavery or, in other words, into banishment. When he had pronounced sentence of death, he was entitled, but not obliged, to allow an appeal to the people for pardon. He called out the people for service in war and com manded the army; but with these high functions he was no less bound, when an alarm of fire was raised, to appear in person at the scene of the burning.
As the house-master was not simply the greatest but the only power in the house, so the king was not merely the first but the only holder of power in the state. He might indeed form colleges of men of skill composed of those specially conversant with the rules of sacred or of public law, and call upon them for their advice; he might, to facilitate his exercise of power, entrust to others particular functions, such as the making communications to the
burgesses, the command in war, the decision of processes of minor importance, the inquisition of crimes; he might in particular, if he was compelled to quit the bounds of
CHAP- v ORIGINAL CONSTITUTION
OF ROME
83
the city, leave behind him a “city-warden ” (jraefidus urbf) with the full powers of an alter ego; but all oflicial power existing by the side of the king’s was derived from the latter, and every oflicial held his office by the king’s appointment and during the king’s pleasure. All the oflicials of the earliest period, the extraordinary city-warden as well as the “leaders of division” (tribum', from tribus, part) of the infantry (milz'tes) and of the cavalry (celeres) were merely commissioned by the king, and not magistrates in the subsequent sense of the term. The regal power had not and could not have any external check imposed upon it by law: the master of the community had no judge of his acts within the community, any more than the house father had a judge within his household. Death alone terminated his power. The choice of the new king lay with the council of elders, to which in case of a vacancy the interim-kingship (inlerregnum) passed. A formal co operation in the election of king pertained to the burgesses only after his nomination; de fun the kingly oflice was based on the permanent college of the Fathers (pains), which by means of the interim holder of the power installed the new king for life. Thus “the august blessing of the gods, under which renowned Rome was founded,” was transmitted from its first regal recipient in constant suc cession to those that followed him, and the unity of the state was preserved unchanged notwithstanding the personal change of the holders of power.
This unity of the Roman people, represented in the field of religion by the Roman Diovis, was in the field of law represented by the prince, and therefore his costume was the same as that of the supreme god ; the chariot even in the city, where every one else went on foot, the ivory
sceptre with the eagle, the Vermilion-painted face, the
of oaken leaves in gold, belonged alike to the Roman god and to the Roman king. It would be a great
chaplet
84
ORIGINAL CONSTITUTION OF ROME BOOK I
error, however, to regard the Roman constitution on that account as a theocracy: among the Italians the ideas of god and king never faded away into each other, as they did in Egypt and the East. The king was not the god of the people; it were much more correct to designate him as the proprietor of the state. Accordingly the Romans knew nothing of special divine grace granted to a particular family, or of any other sort of mystical charm by which a king should be made of different stuff from other men: noble descent and relationship with earlier rulers were recommendations, but were not necessary conditions; the oflice might be lawfully filled by any Roman come to years of discretion and sound in body and mind. 1 The king was thus simply an ordinary burgess, whom merit or fortune, and the primary necessity of having one as master in every house, had placed as master over his equals-a husband man set over husbandmen, a warrior set over warriors. As the son absolutely obeyed his father and yet did not esteem himself inferior, so the burgess submitted to his ruler without precisely accounting him his better. This constituted the moral and practical limitation of the regal
The king might, it is true, do much that was inconsistent with equity without exactly breaking the law of the land : he might diminish his fellow-combatants’ share of the spoil; he might impose exorbitant task-works or otherwise by his imposts unreasonably encroach upon the property of the burgess; but if he did so, he forgot that his plenary power came not from God, but under God's consent from the people, whose representative he was; and who was there to protect him, if the people should in return forget the oath of allegiance which they had sworn? The
1 Dionysius atfirms (v. 25) that lameness excluded from the supreme magistracy. That Roman citizenship was a condition for the regal ofl'ice as well as for the consulate. is so very self-evident as to make it scarcely worth while to repudiate expressly the fictions respecting the burgess of Cures.
power.
CHAP- v ORIGINAL CONSTITUTION OF ROME
85
legal limitation, again, of the king’s power lay in the principle that he was entitled only to execute the law, not to alter Every deviation from the law had to receive the previous approval of the assembly of the people and the council of elders; was not so approved, was null and tyrannical act carrying no legal effect. Thus the power of the king in Rome was, both morally and legally, at bottom altogether different from the sovereignty of the present day and there no counterpart at all in modern life either to the Roman household or to the Roman state.
The division of the body of burgesses was based on
the “ wardship,” curia (probably related to mrare = coerare, munity.
ten wardships formed the community; every wardship furnished hundred men to the infantry (hence mil-es, like equ-es, the thousand-walker), ten horsemen and ten councillors. When communities combined, each of course appeared as part (tribus) of the whole community (Iota in Umbrian and Oscan), and the original unit became multiplied by the number of such parts. This division had reference primarily to the personal composition of the burgess-body, but was applied also to the domain so far as the latter was apportioned at all. That the curies had their lands as well as the tribes, admits of the less doubt, since among the few names of the Roman curies that have been handed down to us we find along with some apparently derived from genres, ag. Faua'a, others certainly of local origin, ag. Veliemis; each one of them embraced, in this primitive period of joint possession of land, number of clan-lands, of which we have already spoken
xot’pawag)
46).
We find this constitution under its simplest form in the
Even in Rome, where the simple constitution of ten curies otherwise early disappeared, we still discover one practical application of it, and that lingularly enough in the very same formality which we have other reason: for regarding as the oldest of all those that are mentioned in our legal traditions, the canfarreatio. seems scarcely doubtful that the ten wit nsses in that ceremony had the same relation to the constitution of ten 21m II the thirty lictors had to the constitution of thirty curies.
The com
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86 ORIGINAL CONSTITUTION OF ROME BOOK 1
scheme of the Latin or burgess communities that subse quently sprang up under the influence of Rome; these had uniformly the number of a hundred councillors (:entumzu'ri). But the same normal numbers make their appearance throughout in the earliest tradition regarding the tripartite Rome, which assigns to it thirty curies, three hundred horse men, three hundred senators, three thousand foot-soldiers.
Nothing is more certain than that this earliest constitu tional scheme did not originate in Rome ; it wasa primitive institution common to all the Latins, and perhaps reached
back to a period anterior to the separation of the stocks. The Roman constitutional tradition quite deserving of credit in such matters, while it accounts historically for the other divisions of the burgesses, makes the division into curies alone originate with the origin of the city ; and in entire harmony with that view not only does the curial constitu~ tion present itself in Rome, but in the recently discovered
scheme of the organization of the Latin communities appears as an essential part of the Latin municipal system.
The essence of this scheme was, and remained, the dis tribution into curies. The tribes (“parts”) cannot have been an element of essential importance for the simple reason that their occurrence at all was, not less than their number, the result of accident; where there were tribes, they certainly had no other significance than that of pre serving the remembrance of an epoch when such “parts ” had themselves been wholes. 1 There is no tradition that the individual tribes had special presiding magistrates or special assemblies of their own; and it is highly probable that in the interest of the unity of the commonwealth tribes which had joined together to form it were never in reality allowed to have such institutions. Even in the army,
1 This is implied in their very name. The “ part ”
know, simply that which has once been or may herealter come to be whole, and so has no real standing of its own in the present.
(tribur)
is, as jurists I
the
it
CRAP. v ORIGINAL CONSTITUTION OF ROME
87
it is true, the inhntry had as many pairs of leaders as there were tribes ; but each of these pairs of military tribunes did not command the contingent of a tribe; on the contrary each individual war-tribune, as well as all in conjunction, exercised command over the whole infantry. The clans were distributed among the several curies; their limits and those of the household were furnished by nature. That the legislative power interfered in these groups by way of modification, that it subdivided the large clan and counted it as two, or joined several weak ones together, there is no indication at all in Roman tradition ; at any rate this took place only in a way so limited that the fundamental char acter of afiinity belonging to the clan was not thereby altered. We may not therefore conceive the number of the clans, and still less that of the households, as a legally fixed one; if the curia had to furnish a hundred men on foot and ten horsemen, it is not aflirmed by tradition, nor is it credible, that one horseman was taken from each clan and one foot-soldier from each house. The only member that
discharged functions in the oldest constitutional organization was the curia. Of these there were ten, or, where there were several tribes, ten to each tribe. Such a “wardship” was a real corporate unity, the members of which assembled at least for holding common festivals. Each wardship was under the charge of a special warden (curio), and had a priest of its own (flamen :urialis) ; beyond doubt also levies and valuations took place according to curies, and in judicial matters the burgesses met by curies and voted by curies. This organization, however, cannot have been introduced primarily with a view to voting, for in that case they would certainly have made the number of subdivisions uneven.
Sternly defined as was the contrast between burgess and Equality non-burgess, the equality of rights within the burgess-body “a” was complete. No people has ever perhaps equalled that
of Rome in the inexorable rigour with which it has carried
88 ORIGINAL CONSTITUTION OF ROME BOOK I
out these principles, the one as fully as the other. The strictness of the Roman distinction between burgesses and non-burgesses is nowhere perhaps brought out with such clearness as in the treatment of the primitive institution of honorary citizenship, which was originally designed to mediate between the two. When a stranger was, by resolution of the community, adopted into the circle of the burgesses, he might surrender his previous citizenship, in which case he passed over wholly into the new community; but he might also combine his former citizenship with that which had just been granted to him. Such was the primitive custom, and such it always remained in Hellas, where in later ages the same person not unfrequently held the freedom of several communities at the same time. But the greater vividness with which the conception of the community as such was realized in Latium could not tolerate the idea that a man might simultaneously belong in the character of a burgess to two communities ; and accordingly, when the newly-chosen burgess did not intend to surrender his previ ous franchise, it attached to the nominal honorary citizen ship no further meaning than that of an obligation to befriend and protect the guest (ius lwspitii), such as had
alwaysbeen recognized as incumbent in reference to foreigners. But this rigorous retention of barriers against those that
were without was accompanied by an absolute banishment of all difference of rights among the members included in the burgess community of Rome. We have already men tioned that the distinctions existing in the household, which ofcourse could not be set aside, were at least ignored in the community; the son who as such was subject in property to his father might thus, in the character of a. burgess, come to have command over his father as master. There were no class-privileges: the fact that the Tities took precedence of the Ramnes, and both ranked before the Luceres, did not affect their equality in all legal rights.
CRAP. V ORIGINAL CONSTITUTION OF ROME
89
The burgess cavalry, which at this period was used for single combat in front of the line on horseback or even on foot, and was rather a select or reserve corps than a special arm of the service, and which accordingly contained by far the wealthiest, best-armed, and best-trained men, was natur ally held in higher estimation than the burgess infantry; but this was a distinction purely do fade, and admittance to the cavalry was doubtless conceded to any patrician. It was simply and solely the constitutional subdivision of the burgess-body that gave rise to distinctions recognized by the law; otherwise the legal equality of all the members of the community was carried out even in their external appear ance. Dress indeed served to distinguish the president of the community from its members, the grown-up man under obligation of military service from the boy not yet capable of enrolment; but otherwise the rich and the noble as well as the poor and low-born were only allowed to appear in public in the like simple wrapper (toga) of white woollen stuff. This complete equality of rights among the burgesses had beyond doubt its original basis in the Indo-Germanic type of constitution ; but in the precision with which it was thus apprehended and embodied it formed one of the most characteristic and influential peculiarities of the Latin nation. And in connection with this we may recall the fact that in Italy we do not meet with any race of earlier settlers less capable of culture, that had become subject to the Latin immigrants (p. to). They had no conquered race to deal with, and therefore no such condition of things as that which gave rise to the Indian system of caste, to the nobility of Thessaly and Sparta and perhaps of Hellas generally, and probably also to the Germanic distinction of ranks.
The maintenance of the state economy devolved, of course, upon the burgesses. The most important function
of the burgess was his service in the army; for the burgesses 2f alone had the right and duty of bearing arms. The
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ORIGINAL CONSTITUTION OF ROME 300K I
burgesses were at the same time the "body of warriors” (populas, related to popularz', to lay waste) : in the old litanies it is upon the “ spear-armed body of warriors ” (pilumnuspoplus) that the blessing of Mars is invoked ; and even the designation with which the king addresses them, that of Quirites,1 is taken as signifying “ warrior. ” We have already stated how the army of aggression, the “gathering ” (Iegr'o), was formed. In the tripartite Roman community it consisted of three “ hundreds ” (:enturiae) of horsemen (celeres, “the swift,” or flexuntes, “ the wheelers ”) under the three leaders-of-division of the horsemen (tribum' celerum),'
1 Qulrir, quiritir, or quirinus is interpreted by the ancients as “lance-bearer," from qulrir or cfirir=lance and ire, and so far in their view agrees with ramnir, ramrritir and . rd'binur, which also among the ancients was derived from o'ativtov, spear. This etymology, which asso ciates the word with arguilts, militer, pediter, aquifer, velile. t—those respectively who go with the bow, in bodies of a thourand, on foot, on barre
bark, without armour in their mere over-gament—may
is bound up with the Roman conception of a burgess.
(Mars)quirinus, Janus quirinus, areconceivedasdivinities
and, employed in reference to men, quirir is the warrior, that is, the full burgess. With this view the urns loquendi coincides. Where the locality was to be referred to, " Quirites" was never used, but always " Rome " and " Romans" (urbr Roma, popular, ci-uir, ager Romania), because the term quirir had as little of a local meaning as cim‘s or miles. For the same reason these designations could not be combined ; they did not say civic guirir, because both denoted, though from different points of view, the same legal conception. On the other hand" the solemn announcement of the funeral of a burgess ran in the words this warrior has departed in death " (ollus quirir 1:10 datur); and in like manner the king addressed the assembled community by this name, and, when he sat in judgment, gave sentence according to the law of the warrior-freemen (ex iure quiritiuwr, quite similar to the later ex iure cit/iii). The phrase popular Romanur, quiriler " (popular Romanas quirilium is not sufficiently attested), thus means the community and the individual burgesses," and therefore in an old formula (Liv. i. 32) to the papulur Ramanur are opposed the prirci Latina", to the quiriter the [. aminar prirci Latin! ’ (Becker, Handb. 20 reg.
the face of these facts nothing but ignorance of language and of history can still adhere to the idea that the Roman community was once confronted by Quirite community of similar kind, and that after their incorporation the name of the newly received community supplanted in ritual and legal phraseology that of the receiver. —Comp. p. 68 note.
Among the eight ritual institutions of Numa, Dionysius (ii. 64) after’ naming the Curiones and Flamines, specifies as the third the leaders of the horsemen (ol 'h-yquéves r6511 Keheplwv). According to the Praenesu'ne calendar festival was celebrated at the Comitium on the rgth March [ad
be incorrect, but it So too Juno quiritis, that hurl the spear;
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CHAP. V ORIGINAL CONSTITUTION OF ROME
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and three “ thousands ” of footmen (milz'tes) under the three leaders-of-division of the infantry (trz'bum' militum) ; the latter were probably from the first the flower of the general levy. To these there may perhaps have been added a number of light-armed men, archers especially, fighting out side of the ranks. 1 The general was regularly the king him self. Besides service in war, other personal burdens might devolve upon the burgesses; such as the obligation of undertaking the king’s commissions in peace and in war (p. 82), and the task-work of tilling the king’s lands or of constructing public buildings. How heavily in particular the burden of building the walls of the city pressed upon the community, is evidenced by the fact that the ring-walls retained the name of “tasks” (maenia). There was no regular direct taxation, nor was there any direct regular ex penditure on the part of the state. Taxation was not needed
stantibus panyificibus et tri6(unir) celer(um). Valerius Antias (in Dionys. i. r3, comp. iii. 41) assigns to the earliest Roman cavalry a leader, Celer, and three centurions; whereas in the treatise De m'rir ill. I, Celer him self is termed centurio. Moreover Brutus is aflirmed to have been tribunur celerum at the expulsion of the kings (Liv. i. 59), and according to Dionysius (iv. 71) to have even by virtue of this oflice made the proposal to banish the Tarquins. And, lastly, Pomponius (Dig. i. a, 2, r5, 19) and Lydus in a similar way, partly perhaps borrowing from him (D: Mag. i. 14, 37), identify the lribunus celerum with the Celer of Antias, the "regirter eguitum of the dictator under the republic, and the Praeflctu: praetorio of the empire.
Of these-the only statements which are extant regarding the lribum' alerum-the last mentioned not only proceeds from late and quite untrust worthy authorities, but"is inconsistent with the meaning of the term, which can only signify divisional leaders of horsemen ; " and above all the master of the horse of the republican period, who was nominated only on extraordinary occasions and was in later times no longer nominated at all, cannot possibly have been identical with the magistracy that was rel quired for the annual festival of the 19th March and was consequently standing oflice. Laying aside, as we necessarily must, the account of Pomponius, which has evidently arisen solely out of the anecdote oi
Brutus dressed up with ever-increasing ignorance as history, we reach the simple result that the tribum' celerum entirely correspond in number and character to the tribuni mih'tum, and that they were the leaders-of division of the horsemen, consequently quite distinct from the magister qur'lum.
1 This is indicated by the evidently very old forms wh'ta and arquitu and by the subsequent organization of the legion.
9:
ORIGINAL CONSTITUTION OF ROME I00! I
for defraying the burdens of the community, since the state gave no recompense for serving in the army, for task-work, or for public service generally ; so far as there was any such recompense at all, it was given to the person who performed the service either by the district primarily concerned in
or the person who could not or would not himself serve. The victims needed for the public service of the gods were procured by tax on actions at law the defeated party in an ordinary process paid down to the state cattle fine (summentum) proportioned to the value of the object in dispute. There no mention of any regular presents to the king on the part of the burgesses. On the other hand there flowed into the royal coffers the port-duties
60), as well as the income from the domains-in particular, the pasture tribute (sm'ptura) from the cattle driven out upon
the common pasture, and the quotas of produce (vectzlgalia), which those enjoying the use of the lands of the state had to pay instead of rent. To this was added the produce of cattle-fines and confiscations and the gains of war. In cases of need contribution (trz'butum) was imposed, which was looked upon, however, as forced loan and was repaid when the times improved; whether fell upon the bur gesses generally, or only upon the melom', cannot be determined; the latter supposition however, the more probable.
The king managed the finances. The property of the state, however, was not identified with the private property of the king; which, judging from the statements regarding the extensive landed possessions of the last Roman royal house, the Tarquins, must have been considerable. The ground won by arms, in particular, appears to have been constantly regarded as property of the state. Whether and how far the king was restricted by use and wont in the administration of the public property, can no longer be ascertained; only the subsequent course of things shows
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CHAP. v ORIGINAL CONSTITUTION OF ROME
93
that the burgesses can never have been consulted regarding whereas was probably the custom to consult the senate
in the imposition of the trz'butum and in the distribution of the lands won in war.
The Roman burgesses, however, do not merely come Rights into view as furnishing contributions and rendering service
they also bore part in the public government. For this purpose all the members of the community (with the ex ception of the women, and the children still incapable of bearing arms)—in other words, the “spearmen ” (quiriter)
as in addressing them they were designated-‘assembled at the seat of justice, when the king convoked them for the purpose of making a communication (convenlio, :ontia), or formally bade them meet (comitia) for the third week (in trinum noundinum), to consult them curies. He
such formal assemblies of the community to be held regularly twice year, on the 24th of March and the 24th of May, and as often besides as seemed to him neces sary. The burgesses, however, were always summoned not to speak, but to hear; not to ask questions, but to answer them. No one spoke in the assembly but the king, or he to whom the king saw fit to grant liberty of speech; and the speaking of the burgesses consisted of simple answer to the question of the king, without discussion, without reasons, without conditions, without breaking up the question even into parts. Nevertheless the Roman burgess-community, like the Germanic and not improbably the primitive Indo-Germanic communities in general, was the real and
ultimate basis of the political idea of sovereignty. But in the ordinary course of things this sovereignty was dormant, or only had its expression in the fact that the burgess-body voluntarily bound itself to render allegiance to its president. For that purpose the king, after he had entered on his oflice, addressed to the assembled curies the question whether they would be true and loyal to him and would
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94
ORIGINAL CONSTITUTION OF ROME BOOK 1
according to use and wont acknowledge himself as well as his messengers (lidares) ; a question, which undoubtedly might no more be answered in the negative than the parallel homage in the case of a hereditary monarchy might be refused.
It was in thorough consistency with constitutional princi ples that the burgesses, just as being the sovereign power, should not on ordinary occasions take part in the course of public business. So long as public action was confined to the carrying into execution of the existing legal arrange ments, the power which was, properly speaking, sovereign in the state could not and might not interfere: the laws governed, not the lawgiver. But it was different where a change of the existing legal arrangements or even a mere deviation from them in a particular case was necessary; and here accordingly, under the Roman constitution, the burgesses emerge without exception as actors ; so that each act of the sovereign authority is accomplished by the co operation of the burgesses and the king or interrex. As the legal relation between ruler and ruled was itself sanc tioned after the manner of a contract by oral question and answer, so every sovereign act of the community was accom plished by means of a question (rogatio), which the king addressed to the burgesses, and to which the majority of the curies gave an affirmative answer. In this case their consent might undoubtedly be refused. Among the Romans, therefore, law was not primarily, as we conceive com mand addressed by the sovereign to the whole members of the community, but primarily contract concluded between
the constitutive powers of the state by address and counter address. 1 Such a legislative contract was dejure requisite
Us that which binds," related to llgare, "to bind to something") denotes, u well known, contract in general, along, however, with the connotation of contract whose terms the proposer dictates and the other party simply accepts or declines as was usually the case, eg. with public licitalianu. In the [ex publica pupuli Romans‘ the proposer was
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:rrar. v ORIGINAL CONSTITUTION OF ROME
95
in all cases which involved a deviation from the ordinary consistency of the legal system. In the ordinary course of law any one might without restriction give away his property to whom he would, but only upon condition of its immediate transfer: that the property should continue for the time being with the owner, and at his death pass over to another, was a legal impossibility—unless the community should allow it; a permission which in this case the burgesses could grant not only when assembled in their curies, but also when drawn up for battle. This was the origin of testaments. In the ordinary course of law the freeman could not lose or surrender the inalienable blessing of freedom, and therefore one who was subject to no house master could not subject himself to another in the place of a son-unless the community should grant him leave to do so. This was the adrogatio. In the ordinary course of law burgess-rights could only be acquired by birth and could never be lost—unless the community should confer the
or allow its surrender; neither of which acts, doubtless, could be validly done originally without a decree of the curies. In the ordinary course of law the criminal whose crime deserved death, when once the king or his deputy had pronounced sentence according to judgment and justice, was inexorably executed; for the king could only judge, not pardon-unless the condemned burgess appealed to the mercy of the community and the judge
allowed him the opportunity of pleading for pardon. This was the beginning of the pro'aocatio, which for that reason was especially permitted not to the transgressor who had refused to plead guilty and had been convicted, but to him who confessed his crime and urged reasons in palliation of it. In the ordinary course of law the perpetual treaty con cluded with a neighbouring state might not be broken
the king, the acceptor the people; the limited co-operation of the latter was thus significantly indicated in the very language.
patriciate
96
ORIGINAL CONSTITUTION OF ROME BOOK]
unless the burgesses deemed themselves released from it on account of injuries inflicted on them. Hence it was necessary that they should be consulted when an aggressive war was contemplated, but not on occasion of a defensive war, where the other state had broken the treaty, nor on the conclusion of peace; it appears, however, that the question was in such a case addressed not to the usual assembly of the burgesses, but to the army. Thus, in
it was necessary to consult the burgesses whenever the king meditated any innovation, any change of the exist ing public law; and in so far the right of legislation was from antiquity not a right of the king, but a right of the king and the community. In these and all similar cases the king could not act with legal effect without the co operation of the community; the man whom the king alone declared a patrician remained as before a non-burgess, and the invalid act-could only carry consequences possibly de
facto, not de jure. Thus far the assembly of the community, however restricted and bound at its emergence, was yet from antiquity a constituent element of the Roman common wealth, and was in law superior to, rather than co-ordinate with, the king.
But by the side of the king and of the burgess-assernbly there appears in the earliest constitution of the community a third original power, not destined for acting like the fomier or for resolving like the latter, and yet co-ordinate with both and within its own rightful sphere placed over both. This was the council of elders or senatus. Beyond doubt it had its origin in the clan-constitution: the old tradition that in the original Rome the senate was composed of all the heads of households is correct in state-law to this extent, that each of the clans of the later Rome which had not merely migrated thither at a more recent date referred its origin to one of those household-fathers of the primitive city as its ancestor and patriarch. If, as is probable, there
general,
senate.
CRAP. V ORIGINAL CONSTITUTION OF ROME
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was once in Rome or at any rate in Latium a time when, like the state itself, each of its ultimate constituents, that is
to say each clan, had virtually a monarchical
and was under the rule of an elder-whether raised to that position by the choice of the clansmen or of his predecessor, or in virtue of hereditary succession-the senate of that time was nothing but the collective body of these clan-elders, and accordingly an institution independent of the king and of the burgess-assembly ; in contradistinction to the latter, which was directly composed of the whole body of the burgesses, it was in some measure a representative assembly of persons acting for the people. Certainly that stage of independence when each clan was virtually a state was surmounted in the Latin stock at an immemorially early period, and the first and perhaps most diflicult step towards developing the community out of the clan-organization-the setting aside of the clan-elders-had possibly been taken in Latium long before the foundation of Rome; the Roman clan, as we know without any visible head, and no one of the living clansmen especially called to represent the common patriarch from whom all the clansmen descend or profess to descend, so that even inheritance and guardianship, when they fall by death to the clan, devolve on the clan-members as whole. Nevertheless the original character of the council of elders bequeathed many and important legal
consequences to the Roman senate. To express the matter briefly, the position of the senate as something other and more than mere state-council—than an assemblage of number of trusty men whose advice the king found
fitting to obtain—hinged entirely on the fact that was once an assembly, like that described by Homer, of the princes and
rulers of the people sitting for deliberation in circle round the king. So long as the senate was formed by the aggregate of the heads of clans, the number of the members :annot have been tired one, since that of the clans was
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not so; but in the earliest, perhaps even in pre-Roman, times the number of the members of the council of elders for the community had been fixed without respect to the number of the then existing clans at a hundred, so that the amalgamation of the three primitive communities had in state-law the necessary consequence of an increase of the seats in the senate to what was thenceforth the fixed normal number of three hundred. Moreover the senators were at all times called to sit for life; and if at a later period the lifelong tenure subsisted more de facto than dejure, and the revisions of the senatorial list that took place from time to time afforded an opportunity to remove the unworthy or the unacceptable senator, it can be shown that this arrangement only arose in the course of time. The selection of the senators certainly, after there were no longer heads of clans, lay with the king; but in this selection during the earlier epoch, so long as the people retained a vivid sense of the individuality of the clans, it was probably the rule that, when a senator died, the king should call another experienced and aged man of the same clanship to fill his place. It was only, we may surmise, when the community became more thoroughly amalgamated and inwardly united, that this usage was departed from and the selection of the senators was left entirely to the free judgment of the king, so that he was only regarded as failing in his duty when be omitted to fill up vacancies.
The prerogatives of this council of elders were based on the view that the rule over the community composed of clans rightfully belonged to the collective clan-elders, although in accordance with the monarchical principle of the Romans, which already found so stern an expression in the household, that rule could only be exercised for the time being by one of these elders, namely the king. Every member of the senate accordingly was as such, not‘ in practice but in prerogative, likewise king of the community;
98
ORIGINAL CONSTITUTION OF ROME 300! I
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CI-IAP- v ORIGINAL CONSTITUTION OF ROME
99
and therefore his insignia, though inferior to those of the king, were of a similar character: he wore the red shoe like the king; only that of the king was higher and more hand some than that of the senator. On this ground, moreover, as was already mentioned, the royal power in the Roman community could never be left vacant. When the king died, the elders at once took his place and exercised the prerogatives of regal power. According to the immutable
however that only one can be master at a time, even now it was only one of them that ruled, and such an “interim king” (im‘errex) was distinguished from the king nominated for life simply in respect to the duration, not in respect to the plenitude, of his authority. The duration of the oflice of interrex was fixed for the individual holders at not more than five days ; it circulated accordingly among the senators on the footing that, until the royal oflice was again permanently filled up, the temporary holder at the expiry of that term nominated a successor to himself, likewise for five days, agreeably to the order of succession fixed by lot. There was not, as may readily be conceived, any declaration of allegiance to the intcrrex on the part of the community. Nevertheless the interwx was entitled and bound not merely to perform all the oflicial acts otherwise pertaining to the king, but even to nominate a king for life with the single exception, that this latter right was not vested in the first who held the office, presumably because the first was regarded as defectively appointed inasmuch as he was not nominated by his predecessor. Thus this assembly of elders was the ultimate holder of the ruling power (imperzhm) and the divine protection (auspia'a) of the Roman
commonwealth, and furnished the guarantee for the uninterrupted continuance of that commonwealth and of its monarchical-though not hereditarily monarchical-organ ization. If therefore this senate subsequently seemed to the Greeks to be an assembly of kings, this was only
principle
roo ORIGINAL CONSTITUTION OF ROME 8003 I
what was to be expected; it had in fact been such originally.
But it was not merely in so far as the idea of a perpetual kingdom found its living expression in this assembly, that
The council of elders, indeed, had no title to interfere with oudoritar. the official functions of the king. The latter doubtless, in the event of his being unable personally to lead the army or to decide a legal dispute, took his deputies at all times
from the senate ; for which reason subsequently the highest
of command were regularly bestowed on senators alone, and senators were likewise employed by preference as jurymen. But the senate, in its collective capacity, was never consulted in the leading of the army or in the administration of justice ; and therefore there was no right of military command and no jurisdiction vested in the senate of the later Rome. On the other hand the council of elders was held as called to the guardianship of the existing constitution against encroachments by the king and the burgesses. On the senate devolved the duty of
examining every resolution adopted by the burgesses at the suggestion of the king, and of refusing to confirm it if it seemed to violate existing rights; or, which was the same thing, in all cases where a resolution of the community was constitutionally requisite-as on every alteration of the constitution, on the reception of new burgesses, on the declaration of an aggressive war-the council of elders had a right of veto. This may not indeed be regarded in the light of legislation pertaining jointly to the burgesses and the senate, somewhat in the same way as to the two chambers in the constitutional state of the present day; the senate was not so much law-maker as law-guardian, and could only cancel a decree when the community seemed to have exceeded its competence-to have violated by its decree existing obligations towards the gods or towards
The senate
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CHAP- V ORIGINAL CONSTITUTION OF ROME 101
foreign states or organic institutions of the community. But still it was a matter of the greatest importance that— to take an example-when the Roman king had proposed- a declaration of war and the burgesses had converted it into a decree, and when the satisfaction which the foreign community seemed bound to furnish had been demanded in vain, the Roman envoy invoked the gods as witnesses of the wrong and concluded with the words, “But on these matters we shall consult the elders at home how we may obtain our rights ;” it was only when the council of elders had declared its consent, that the war now decreed by the burgesses and approved by the senate was formally declared. Certainly it was neither the design nor the effect of this rule to occasion a constant interference of the senate with the resolutions of the burgesses, and by such guardianship to divest them of their sovereign power; but, as in the event of a vacancy in the supreme oflice the senate secured the continuance of the constitution, we find it here also as the shield of legal order in opposition even to the supreme power-the community.
With this arrangement was probably connected the The senate apparently very ancient usage, in virtue of which the king 9-! state
council. previously submitted to the senate the proposals that were
to be brought before the burgesses, and caused all its members one after another to give their opinion on the subject. As the senate had the right of cancelling the resolution adopted, it was natural for the king to assure himself beforehand that no opposition was to be appre hended from that quarter; as indeed in general, on the one hand, it was in accordance with Roman habits not to decide matters of importance without having taken counsel with other men, and on the other hand the senate was called, in virtue of its very composition, to act as a state council to the ruler of the community. It was from this usage of giving counsel, far more than from the prerogative!
The orl ginal con stitution of Rome.
I02 ORIGINAL CONSTITUTION OF ROME 800K I
which we have previously described, that the subsequent extensive powers of the senate were developed ; but it was in its origin insignificant and really amounted only to the prerogative of the senators to answer, when they were asked a question. It may have been usual to ask the previous opinion of the senate in affairs of importance which were neither judicial nor military, as, for instance—apart from the proposals to be submitted to the assembly of the people —in the imposition of task-works and taxes, in the summon ing of the burgesses to war-service, and in the disposal of the conquered territory; but such a previous consultation, though usual, was not legally necessary. The king convoked the senate when he pleased, and laid before it his questions ; no senator might declare his opinion unasked, still less might the senate meet without being summoned, except in the single case of its meeting on occasion of a vacancy to settle the order of succession in the oflice of interrex. That the king was moreover at liberty to call in and consult other men whom he trusted alongside of, and at the same time with, the senators, is in a high degree probable. The advice, accordingly, was not a command; the king might omit to comply with while the senate had no other means for giving practical effect to its views except the already-mentioned right of cassation, which was far from being universally applicable. “I have chosen you, not that ye may be my guides, but that ye may do my bidding:” these words, which later author puts into the mouth of king Romulus, certainly express with
substantial correctness the position of the senate in this respect.
Let us now sum up the results. Sovereignty, as con ceived by the Romans, was inherent in the community of burgesses but the burgess-body was never entitled to act alone, and was only entitled to co-operate in action, when there was to be departure from existing rules. By its
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CRAP. v ORIGINAL CONSTITUTION OF ROME
103
side stood the assembly of the elders of the community appointed for life, virtually a college of magistrates with
regal power, called in the event of a vacancy in the royal oflice to administer it by means of their own members until it should be once more definitively filled, and entitled to overturn the illegal decrees of the community. The royal power itself was, as Sallust says, at once absolute and limited by the laws (imperz'um legt'timum) ; absolute, in so far as the king's command, whether righteous or not, must in the first instance be unconditionally obeyed; limited, in so far as a command contravening established usage and not sanctioned by the true sovereign—the people-carried no permanent legal consequences. The oldest constitution of Rome was thus in some measure constitutional monarchy inverted. In that form of government the king is regarded as the possessor and vehicle of the plenary power of the state, and accordingly acts of grace, for example, proceed solely from him, while the administration of the state belongs to the representatives of the people and to the executive responsible to them. In the Roman constitution the community of the people exercised very much the same functions as belong to the king in England: the right of pardon, which in England is a prerogative of the crown, was in Rome a prerogative of the community; while all government was vested in the president of the state.
in conclusion, we inquire as to the relation of the state itself to its individual members, we find the Roman polity equally remote from the laxity of mere defensive combination and from the modern idea of an absolute omnipotence of the state. The community doubtless exercised power over the person of the burgess in the imposition of public burdens, and in the punishment of offences and crimes; but any special law inflicting, or threatening to inflict, punishment on an individual on account of acts not universally recognized as penal always
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ORIGINAL CONSTITUTION OF ROME BOOK I
appeared to the Romans, even when there was no flaw in point of form, an arbitrary and unjust proceeding. Far more restricted still was the power of the community in respect of the rights of property and the rights of family which were coincident, rather than merely connected, with these ; in Rome the household was not absolutely annihilated and the community aggrandized at its expense, as was the case in the police organization of Lycurgus. It was one of the most undeniable as well as one of the most remarkable principles of the primitive constitution of Rome, that the state might imprison or hang the burgess, but might not take away from him his son or his field or even lay permanent taxation on him. In these and similar things the community itself was restricted from encroaching on the burgess, nor was this restriction merely ideal; it found its expression and its practical application in the constitu tional veto of the senate, which was certainly entitled and bound to annul any resolution of the community contraven
ing such an original right. No community was so all powerful within its own sphere as the Roman; but in no community did the burgess who conducted himself un blameably live in an equally absolute security from the risk of encroachment on the part either of his fellow burgesses or of the state itself.
These were the principles on which the community of Rome governed itself—a free people, understanding the duty of obedience, clearly disowning all mystical priestly delusion, absolutely equal in the eye of the law and one with another, bearing the sharply-defined impress of a nationality of their own, while at the same time (as will be afterwards shown) they wisely as well as magnanimously opened their gates wide for intercourse with other lands. This constitution was neither manufactured nor borrowed ; it grew up amidst and along with the Roman people. It was based, of course, upon the earlier constitutions-4h:
CHAP. v ORIGINAL CONSTITUTION OF ROME
[05
Italian, the Graeco-Italian, and the Indo-Germanic ; but a long succession of phases of political development must have intervened between such constitutions as the poems of Homer and the Germania of Tacitus delineate and the oldest organization of the Roman community. In the aoclamation of the Hellenic and in the shield-striking of the Germanic assemblies there was involved an expres sion of the sovereign power of the community ; but a wide interval separated forms such as these from the organized
jurisdiction and the regulated declaration of opinion of the Latin assembly of curies. It is possible, moreover, that as the Roman kings certainly borrowed the purple mantle and the ivory sceptre from the Greeks (not from the Etruscans), the twelve lictors also and various other external arrange ments were introduced from abroad. But that the develop
ment of the Roman constitutional law belonged decidedly to Rome or, at any rate, to Latium, and that the borrowed elements in it are but small and unimportant, is clearly demonstrated by the fact that all its ideas are uniformly expressed by words of Latin coinage.
This constitution practically established for all time the fundamental conceptions of the Roman state; for, as long as there existed a Roman community, in spite of changes of form it was always held that the magistrate had absolute command, that the council of elders was the highest authority in the state, and that every exceptional resolution required the sanction of the sovereign or, in other words, of the community of the people.
/ v/
mntion of the Pala tine and
Quirinnl d.
CHAPTER VI
m NON-BURGESSES AND 'rrn: REFORMED cous'ri'r'rmou
THE history of every nation, and of Italy more especially, is a :ynoikismos on a great scale. Rome, in the earliest form in which we have any knowledge of was already triune, and similar incorporations only ceased when the spirit of Roman vigour had wholly died away. Apart from that primitive process of amalgamation of the Ramnes, Tities, and Luceres, of which hardly anything beyond the bare fact known, the earliest act of incorporation of this sort was that by which the Hill-burgesses became merged in the
Palatine Rome. The organization of the two communities, when they were about to be amalgamated, may be conceived to have been substantially similar; and in solving the problem of union they would have to choose between the alternatives of retaining duplicate institutions or of abolishing one set of these and extending the other to the whole united community. They adopted the former course with respect to all sanctuaries and priesthoods. Thenceforth the Roman community had its two guilds of Salii and two of Luperci,
and as had two forms of Mars, had also two priests for that divinity—the Palatine priest, who afterwards usually took the designation of priest of Mars, and the Colline, who was termed priest of Quirinus. It likely, although
can no longer be proved, that all the old Latin priest hoods of Rome—the Augurs, Pontifices, Vestals, and Fetials
106 THE NON-BURGESSES AND 800! I
it
it
is
it is
it,
CHAP- vr THE REF ORMED CONSTITUTION
r07
-originated in the same way from a combination of the priestly colleges of the Palatine and Quirinal communities. In the division into local regions the town on the Quirinal hill was added as a fourth region to the three belonging to the Palatine city, viz. the Suburan, Palatine, and suburban (Esquiliae). In the case of the original synoili’ismos the annexed community was recognized after the union as at least a tribe (part) of the new burgess-body, and thus had in some sense a continued political existence; but this course was not followed in the case of the Hill-Romans or in any of the later processes of annexation. After the
union the Roman community continued to be divided as formerly into three tribes, each containing ten wardships (:uriae); and the Hill-Romans-whether they were or were not previously distributed into tribes of their own-must have been inserted into the existing tribes and wardships. This insertion was probably so arranged that, while each tribe and wardship received its assigned proportion of the new burgesses, the new burgesses in these divisions were not amalgamated completely with the old ; the tribes hence forth presented two ranks : the Tities, Ramnes, and Luceres being respectively subdivided into first and second (prions,
With this division was connected in all prob ability that arrangement of the organic institutions of the community in pairs, which meets us everywhere. The three pairs of Sacred Virgins are expressly described as representatives of the three tribes with their first and second ranks; and it may be conjectured that the pair of Lares worshipped in each street had a similar origin. This arrangement is especially apparent in the army: after the union each half-tribe of the tripartite community furnished a hundred horsemen, and the Roman burgess cavalry was thus raised to six “ hundreds,” and the number of its cap tains probably from three to six. There is no tradition of any corresponding increase to the infantry; but to this
posterz'ores).
|o8 THE NON-BURGESSES AND BOOK 1
origin we may refer the subsequent custom of calling out the legions regularly two by two, and this doubling of the levy probably led to the rule of having not three, as was perhaps originally the case, but six leaders~of-division to command the legion. It is certain that no corresponding increase of seats in the senate took place: on the contrary, the primitive number of three hundred senators remained the normal number down to the seventh century ; with which it is quite compatible that a number of the more prominent men of the newly annexed community may have been received into the senate of the Palatine city. The same course was followed with the magistracies: a single king presided over the united community, and there was no change as to his principal deputies, particularly the warden of the city. It thus appears that the ritual institutions of the Hill-city were continued, and that the doubled burgess body was required to furnish a military force of double the numerical strength ; but in other respects the incorporation of the Quirinal city into the Palatine was really a subordina tion of the former to the latter. If we have rightly assumed that the contrast between the Palatine old and the Quirinal new burgesses was identical with the contrast between the first and second Tities, Ramnes, and Luceres, it was thus the gentes of the Quirinal city that formed the “second ” or the “lesser. ” The distinction, however, was certainly more
an honorary than a legal precedence. At the taking of the vote in the senate the senators taken from the old clans were asked before those of the “lesser. ” In like manner the Colline region ranked as inferior even to the suburban (Esquiline) region of the Palatine city; the priest of the Quirinal Mars as inferior to the priest of the Palatine Mars ; the Quirinal Salii and Luperci as inferior to those of the Palatine. It thus appears that the synaikismos, by which the Palatine community incorporated that of the Quirinal, marked an intermediate stage between the earliest . synm'kis
um. vr THE REFORMED CONSTITUTION
109
was by which the Tities, Ramnes, and Luceres became blended, and all those that took place afterwards. The annexed community was no longer allowed to form a separate tribe in the new whole, but it was permitted to furnish at least a distinct portion of each tribe; and its ritual institutions were not only allowed to subsist—as was afterwards done in other cases, after the capture of Alba for example—but were elevated into institutions of the united community, a course which was not pursued in any subsequent instance.
This amalgamation of two substantially similar common Depend‘
wealths produced rather an increase in the size than a change in the intrinsic character of the existing community. A second process of incorporation, which was carried out far more gradually and had far deeper effects, may be traced back, so far as the first steps in it are concerned, to this epoch; we refer to the amalgamation of the burgesses and the metom'. At all times there existed side by side with the burgesses in the Roman community persons who were protected, the “listeners” (clzhntes), as they were called from their being dependents on the several burgess-house holds, or the “multitude” (plebes, from plea, plenus), as they were termed negatively with reference to their want of
cuts and
guests.
The elements of this intermediate stage between the freeman and the slave were, as has been shown (p. 79), already in existence in the Roman household : but
in the community this class necessarily acquired greater importance a'efado and de fun, and that from two reasons. In the first place the community might itself possess half free clients as well as slaves; especially after the conquest of a town and the breaking up of its commonwealth it might often appear to the conquering community advisable not to sell the mass of the burgesses formally as slaves, but
I Hahn’! plateau in clientele: prina'pum dercriptam. Cicero, 4': Rep. "- 9
political rights. 1
no
THE NON-BURGESSES AND BOOK r
to allow them the continued possession of freedom defacto, so that in the capacity as it were of freedmen of the com munity they entered into relations of clientship whether to the clans, or to the king. In the second place by means of the community and its power over the individual burgesses, there was given the possibility of protecting the clients against an abusive exercise of the domim'um still subsist
ing in law. At an immemorially early period there was
into Roman law the principle on which rested the whole legal position of the metoea', that, when a master on occasion of a public legal act—such as in the making of a testament, in an action at law, or in the census-expressly or tacitly surrendered his domim'um, neither he himself nor his lawful successors should ever have power arbitrarily to recall
introduced
or reassert a claim to the person of the freedman himself or of his descendants. The clients and their posterity did not by virtue of their position
possess either the rights of burgesses or those of guests : for to constitute a burgess a formal bestowal of the privilege was requisite on the part of the community, while the relation of guest presumed the holding of burgess-rights in a com munity which had a treaty with Rome. What they did obtain was a legally protected possession of freedom, while
they continued to be de jure non-free. Accordingly for a lengthened period their relations in all matters of property seem to have been, like those of slaves, regarded in law as relations of the patron, so that it was necessary that the latter should represent them in processes at law ; in connec tion with which the patron might levy contributions from them in case of need, and call them to account before
him criminally. By degrees, however, the body of metom'
that resignation
to acquire and to alienate in their own name, and to claim and obtain legal
outgrew
these fetters; they began
redress from the Roman burgess-tribunals formal intervention of their patron.
without the
. __. . r~m,__
CHAP- V! THE REFORMED CONSTITUTION
In matters of marriage and inheritance, equality of rights with the burgesses was far sooner conceded to foreigners (p. 50) than to those who were strictly non-free and belonged to no community; but the latter could not well be pro hibited from contracting marriages in their own circle and from forming the legal relations arising out of marriage those of marital and paternal power, of agnatia and gentilita: of heritage and of tutelage—after the model of the corre sponding relations among the burgesses.
Similar consequences to some extent were produced by the exercise of the £14s lwspilii, in so far as by virtue of it foreigners settled permanently in Rome and established a domestic position there. In this respect the most liberal principles must have prevailed in Rome from primitive times. The Roman law knew no distinctions of quality in inherit ance and no locking up of estates. It allowed on the one hand to every man capable of making a disposition the entirely unlimited disposal of his property during his lifetime ; and on the other hand, so far as we know, to every one who was at all entitled to have dealings with Roman burgesses, even to the foreigner and the client, the unlimited right of acquiring moveable, and (from the time when immoveables could be held as private property at all) within certain limits also immoveable, estate in Rome. Rome was in fact a commercial city, which was indebted for the commence ment of its importance to international commerce, and which with a noble liberality granted the privilege of settle ment to every child of an unequal marriage, to every manu mitted slave, and to every stranger who surrendering his rights in his native land emigrated to Rome.