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THE EARLIEST CONSTITUTION OF ROME

SECT.

THE GROWTH OF THE REPUBLICAN CONSTITUTION

THE CLASSES OF THE POPULATION AND THE THEORY OF THE CONSTITUTION IN THE DEVELOPED REPUBLIC

THE MAGISTRACY

THE PEOPLE AND ITS POWERS

THE SENATE

THE INTERNATIONAL RELATIONS OF ROME AND THE INCORPORATION OF ITALY

THE ORGANISATION AND GOVERNMENT OF THE PROVINCES

THE REVOLUTION AND THE TRANSITION TO THE PRINCIPATE

THE PRINCIPATE

ITALY AND THE PROVINCES UNDER THE PRINCIPATE

The two Assemblies of the Tribes, 445

A Limitation of the Tribunate in the Reign of Nero, 447

INDEX

PAGE

of subjects 453

of Latin words 457

of passages from ancient authors referred to in the text 467

SELECT BIBLIOGRAPHY

SCHILLER, H.--"Staats- und Rechtsaltert?mer" . M?nchen, 1893.

IHNE, W.--"Early Rome, from the foundation of the city to its destruction by the Gauls" . London, 1876.

RICHTER, O.--Art. "Rom" . M?nchen, Leipzig, 1889.

CUQ, E.--"Le conseil des empereurs d'Auguste ? Diocl?tien" . Paris, 1884.

BETHMANN-HOLLWEG, M. A. VON.--"Der r?mische Civilprozess" . Bonn, 1864.

CUNNINGHAM, W.--"An essay on Western civilisation in its economic aspects" . Cambridge, 1898.

VOIGT, M.--"Privataltert?mer und Kulturgeschichte" . M?nchen, 1893.

MARQUARDT, J.--"De provinciarum Romanarum conciliis et sacerdotibus" .

MOMMSEN, TH.--"Die Stadtrechte der latinischen Gemeinden Salpensa und Malaca in der Provinz Baetica" . Leipzig, 1857.

THE EARLIEST CONSTITUTION OF ROME

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yet, though the monarchy was not strictly elective, certain quasi-elective processes were connected by tradition with the appointment of the king, on the part both of Senate and people.

There was also a religious aspect of the king's appointment. His assumption of power was regarded as incomplete until it had been shown that the gods sanctioned the rule which he had assumed. This was done by the first taking of the auspices--a ceremony observed by magistrates of the Republic before entering on the exercise of their office. This was the final test for the right to exercise secular power; but the king's position as high-priest of the community was supposed to require another initiatory act.

There were other manifestations of the king's power as general over which the people would have no control. The disposal of the booty taken in war and of the conquered lands was one of these, and the statements which record this right find support in Republican survivals. The control of the spoils of war belongs to the Republican general, subject to the advice of his council of war and sometimes to subsequent ratification by the Senate. The first condition may have been necessary in the time of the monarchy, but hardly the second.

Senators also must have been chiefly chosen as delegates of the king, except, perhaps, those appointed for subordinate command in war; there military fitness would be chiefly looked to.

The system of registration, which was the central idea of the Servian reforms, was essentially military. It recognised only those persons who were qualified for service by wealth, regarded them as forming an army , and divided this army into its two branches of infantry and cavalry. This military organisation recognised one primary and two secondary principles as the basis of classification; the first was wealth, the second age, the third took the form of a subdivision for strategic purposes, the military unit employed being the "hundred" .

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