Roman Public Life

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Title: Roman Public Life
Author: Greenidge, A. H. J. (Abel Hendy Jones)
Language: English
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Handbooks of Archaeology and Antiquities

ROMAN PUBLIC LIFE

[Illustration: Publisher's logo]

ROMAN PUBLIC LIFE

A. H. J. GREENIDGE, M.A.

Lecturer and Late Fellow of Hertford College, and
Lecturer in Ancient History at Brasenose College, Oxford

London
Macmillan and Co., Limited
New York: The Macmillan Company
1901

M. L. P.

J. T. W. G.

AND

J. E. G. H.

PREFACE

The object of this work is to trace the growth of the Roman constitution,
and to explain its working during the two phases of its maturity, the
developed Republic and the Principate. The title selected perhaps
expresses more succinctly than any other could do the nature of the plan
which I wished to undertake. My desire was to touch, however briefly,
on all the important aspects of public life, central, municipal, and
provincial; and, thus, to exhibit the political genius of the Roman
in connexion with all the chief problems of administration which
it attempted to solve. This design, like many other comprehensive
plans which have to be adapted to the limits of a single volume, was
necessarily subjected to modifications in detail; and, since one of these
modifications has affected the whole scope of the book, it requires some
mention in a preface.

I had intended to carry the treatment of my subject beyond the confines
of the Principate, and to describe the political organisation of the
later Empire as elaborated by Diocletian and his successors. I found,
however, that a discussion of this period would cause my work to exceed
the reasonable limits which can be conceded to a handbook, and I was
forced to abandon the enterprise much against my will. I was somewhat
comforted in this surrender by the suggestion that the constitution of
the later Empire was perhaps not strictly “Roman.” This is a verdict with
which I agree in part. The organisation which had Constantinople as its
centre was certainly the organisation of an Empire which was permeated
with the social ideals of later Rome, which had adopted a Latin code,
and which employed an administrative system whose origin was to be found
in Italy; but in the forms of rule which the monarchy presented the
break with the past was remarkable. The absolutism was no new thing, but
the guise assumed by this absolutism was startlingly novel. It is not
only that classic traditions were forgotten, that, as Gibbon says, “the
purity of the Latin language was debased by adopting, in the intercourse
of pride and flattery, a profusion of epithets, which Tully would
have scarcely understood, and which Augustus would have rejected with
indignation,” but that, even where the continuity in public institutions
can be traced, it is one of names rather than of ideas. In the Principate
we see a perverted Republic; in the monarchy a _Res publica_ only in the
narrowest etymological sense of those words. Perhaps the accession of
Diocletian does, after all, mark the close of a true “Roman” public life.

The task, even as thus limited, has been a long one, and would have been
still longer had it not been for the kindly assistance rendered me by a
former pupil, Miss Muriel Clay, of Lady Margaret Hall. The help which
she has given in the reading of the proofs, and in the verification of
the references to original authorities, has not only facilitated the
production of the book, but has materially improved it by the removal
of errors and obscurities. I have also to thank her for the Index of
subjects and the Index of Latin words which accompany the volume.

A. H. J. G.

OXFORD, _April 1901_.

CONTENTS

(_The references are to the pages_)

CHAPTER I

THE EARLIEST CONSTITUTION OF ROME

_THE GROWTH OF THE CITY_

SECT.

1. Early Italian associations; the _pagus_, _vicus_, _gens_, 1.
Growth of the city of Rome, 2. Foreign influences on Roman life, 3.

_THE ELEMENTS OF THE POPULATION—PATRICIANS, PLEBEIANS,
CLIENTS_

2. Origin of the Patricians, 4; of the Plebeians, 5. Clientship, 7.

_ROMAN FAMILY ORGANISATION_

3. The _gens_, 9. The _familia_, 18. The _nexus_, 24. Slavery, 24.
Transmission of property and forms of testament, 26. _Caput_, 31.
_Capitis deminutio_, 32.

_THE CITIZENS AND THE POLITICAL SUBDIVISIONS OF THE STATE_

4. The _populus Romanus_, 33. Rights of the citizen, 35.
_Auspicium_, 36. The tribes, 40. The army, 41. The _curiae_, 41.

_THE MONARCHICAL CONSTITUTION_

5. Relation of the king to the people, 42. Titles and _insignia_
of the king, 44. Mode of appointment of the king, 45. Religious
character of the monarchy, 51. The rule of _fas_, 52. Civil powers
of the king, 57. The Senate of the monarchy, 58. _Consilia_ of the
king, 61. Delegates of the king, 61. Jurisdiction of the monarchy,
62.

_THE SERVIAN CONSTITUTION_

6. Social changes that led to the Servian reform, 65. The Servian
tribes, 66. Registration for military purposes; the new
organisation of the army, 68. The _census_, 69. Transference of
political rights to the new assembly of the centuries, 75. The
close of the monarchy, 76.

CHAPTER II

THE GROWTH OF THE REPUBLICAN CONSTITUTION

Institution of consuls and limitation of the _imperium_, 78.
Appointment of quaestors, 80. The Senate of the early Republic,
81. Creation of the dictatorship, 84. Government of the patrician
aristocracy, 85. Rights of the plebeians, 87. Social struggles of
the _plebs_, 89. Creation of the tribunate, 93. The powers of the
_tribuni plebs_, 94. The _concilium plebis_, 96. The aediles of the
_plebs_, 97. The _sacrosanctitas_ of the plebeian magistrates, 99.
The _concilium plebis_ meets by tribes, 100. Creation of a _comitia
tributa_, 102. Agitation for the publication of a code, 102. The
Twelve Tables, 104. Attempt at despotism made by the decemvirs, 107.
The Valerio-Horatian laws, 108. Intermarriage permitted between the
orders, 111. Institution of _tribuni militum consulari potestate_,
112. Institution of the censorship, 115. Struggle for the consulship,
118. The Licinio-Sextian laws, 119. Institution of the praetorship
and the curule aedileship, 120. Admission of the plebeians to
office, 122; and to the religious colleges, 123. Rights secured to
the _plebs_ by the _leges Publiliae_ and the _lex Hortensia_, 124.
Results of the tendencies of plebeian emancipation, 127. The new
nobility, 129. Continued distinction between the orders, 131.

CHAPTER III

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

_THE CLASSES OF THE POPULATION_

1. Modes of acquiring citizenship, 132. Modes of enfranchisement,
134. _Ingenuitas_, 135. Rights and duties of the citizen, 136.
Developed conception of _capitis deminutio_, 138. Changes in the
Roman family, 140. The condition of the slave, 141. The freedmen,
144.

_THE THEORY OF THE CONSTITUTION_

2. Complexity of the constitution, 146. Theory of the state as
revealed in the _interregnum_, 147. Separate existence of the
_plebs_, 149. The weakening of the magistracy and the resulting
ascendancy of the Senate, 150.

CHAPTER IV

THE MAGISTRACY

_GENERAL CHARACTERISTICS OF THE MAGISTRACY_

1. _Imperium_ and _potestas_, 152. Administrative powers of the
magistrates, 152. Military powers, 153. The right to triumph, 156.
Powers exercised in connexion with the people, 158. The _contio_
and the _comitia_, 159. Right of acting with the _plebs_, 161.
The right of consulting the Senate, 161. General powers of the
magistrates; the _auspicia_, 162. The _coercitio_, 167. Conflict
between the powers of the magistrates; the _obnuntiatio_, 172. The
right of prohibition, 173. The _intercessio_, 176. The civil and
criminal responsibility of magistrates, 181. The qualifications for
office, 183. The formalities of candidature and election, 187. The
_insignia_ of office, 191.

_THE INDIVIDUAL MAGISTRACIES_

2. The dictator, 191. The magister equitum, 195. The consuls,
196. The praetors, 202. The aediles, 208. The quaestors, 212. The
censors, 216. The plebeian magistrates, 233. The minor magistrates,
234.

CHAPTER V

THE PEOPLE AND ITS POWERS

Legislation, 238. Form of a _lex_, 242. Control of external matters,
243. Elective powers, 245. Judicial powers, 245. Rescission of
sentences by the people, 248. Remission of outlawry and amnesty,
249. Grounds of invalidity of popular acts, 249. The different
_comitia_; the _comitia curiata_, 250. The _comitia centuriata_ and
its reorganisation, 252. The _comitia tributa_, 253. The _concilium
plebis_, 253. Elections to the religious colleges, 254. Formalities
observed in the meetings of the assemblies, 255.

CHAPTER VI

THE SENATE

Reasons for the growth of the Senate’s power, 261. Method of
appointment of senators, 263. External distinctions of senators,
265. Reforms of Sulla, 266. Rules of initiative and debate in the
Senate, 267. The _senatus consultum_ and _senatus auctoritas_, 272.
Powers of the Senate; its probouleutic authority, 273. Suspension of
magistrates, 275. Quasi-legislative power, 275. Power of exempting
from laws, 276. Revising power, 276. Influence on jurisdiction, 277.
Appointment of special commissions, 278. Declaration of martial law,
279. Police control, 282. Control of foreign policy, 282. Control of
finance, 286. Control of religion, 287.

CHAPTER VII

THE INTERNATIONAL RELATIONS OF ROME AND THE INCORPORATION OF ITALY

Difference between the Greek and Italian conceptions of international
law, 289. International customs of Rome, 290. International relations
with foreign states, 292. The _jus gentium_, 294. The federation of
Latium, 295. Extension of the league and change in its character,
296. The organisation of Italy; _cives_ and _socii_, 299. Proposals
to extend the franchise, 310. Settlement after the social war, 312.
Incorporation of Cisalpine Gaul, 314.

CHAPTER VIII

THE ORGANISATION AND GOVERNMENT OF THE PROVINCES

Origin of provincial government, 316. The conception of a
_provincia_, 317. Free and allied cities, 317. _Stipendiariae
civitates_; the _lex provinciae_, 318. Taxation, 319. The governor
and his staff, 322. The spheres of administration, 324. Jurisdiction,
325. The provincial edict, 326. General estimate of provincial
government, 328.

CHAPTER IX

THE REVOLUTION AND THE TRANSITION TO THE PRINCIPATE

Objects of the party of reform, 331. Elements in the party of reform,
332. The balance of parties; the _equites_, 333. The issue of the
struggle, 334. The sole rule of Caesar, 336. The Triumvirate and the
establishment of the Principate, 338.

CHAPTER X

THE PRINCIPATE

_THE POWERS OF THE PRINCEPS_

1. The chief bases of the Princeps’ authority; the _proconsulare
imperium_ and the _tribunicia potestas_; nature of the _imperium_,
341. Powers connected with the _imperium_, 344. Powers connected
with the _tribunicia potestas_, 346. The Princeps as consul, 347;
as censor, 347. Extraordinary rights conferred on the Princeps,
348. Dispensation from laws, 350. The Princeps as head of the state
religion, 350.

_TITLES, INSIGNIA, AND HONOURS OF THE PRINCEPS_

2. Appellatives and titles, 351. _Insignia_, 355. Other honours,
355. The _domus Caesaris_, 356. _Amici_ and _comites_, 357.

_CREATION, TRANSMISSION, AND ABROGATION OF THE PRINCIPATE_

3. Election of a Princeps, 358. Designation of a successor,
360. Hereditary succession, 362. Deposition of a Princeps, 362.
Recognition of a reign, 363.

_THE OTHER POWERS IN THE STATE—THE MAGISTRACY, THE
COMITIA, AND THE SENATE_

4. The magistracy, 363. The individual magistrates, 367. The
_comitia_ 371. The Senate, 373.

_THE CHIEF DEPARTMENTS OF THE STATE; THE DUAL CONTROL
OF SENATE AND PRINCEPS_

5. The dyarchy, 377. Legislation; legislative power of the
_comitia_, 377. Quasi-legislative power of the Senate, 377;
of the Princeps, 378. Jurisdiction, 381. Division of civil
jurisdiction, 382. The civil courts of appeal, 382. The appeal
from the provinces, 385. Criminal jurisdiction, 386. The criminal
courts of appeal, 390. The power of pardon, 391. The dyarchy in
administration, 393; in finance, 394; in the control of _cultus_,
397; in the control of coinage, 397. The extent to which the
dyarchy was a reality, 397.

_THE SENATORIAL AND THE EQUESTRIAN NOBILITY_

6. The senatorial order, 399. The equestrian order, 402.

_THE FUNCTIONARIES OF THE PRINCEPS_

7. The praefects, 406. _Praefectus urbi_, 406. _Praefectus
praetorio_, 409. _Praefectus annonae_, 411. _Praefectus vigilum_,
412. The curators, 413. The procurators, 414. Personal assistants;
the imperial secretariate 418. The imperial _consilium_, 420.

CHAPTER XI

ITALY AND THE PROVINCES UNDER THE PRINCIPATE

_THE ORGANISATION OF ITALY_

1. Division into regions, 422. The downfall of the _comitia_, 423.
Limitations on local jurisdiction, 423. Institution of _curatores_,
424; of _correctores_, 424. The _alimentarium_, 425.

_THE ORGANISATION OF THE PROVINCES_

2. General character of the changes introduced by the Principate,
426. The public and the imperial provinces, 427. Change in the
condition of the free and allied cities, 428. Methods of conferring
immunity; the _jus Italicum_, 429. Taxation, 429. Method of
government in the public provinces, 432; in the imperial provinces,
434. Procuratorial governorships, 432. Government of the German
provinces and of Egypt, 435. Romanisation of the provinces, 436.
Change in the condition of the provincial towns, 437. The _munera_
of their citizens and of the decurions, 439.

_THE WORSHIP OF THE EMPEROR_

3. Origin and character of Caesar-worship, 440. Its extension, 441.
Its effects, 442.

APPENDIX I

The two Assemblies of the Tribes, 445

APPENDIX II

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

INDEX

PAGE

(i.) of subjects 453

(ii.) of Latin words 457

(iii.) of passages from ancient authors referred to in the text 467

SELECT BIBLIOGRAPHY

1. THE POLITICAL INSTITUTIONS OF ROME

HERZOG, E.—_Geschichte und System der römischen
Staatsverfassung._ Leipzig, 1884-91.

KARLOWA, O.—_Römische Rechtsgeschichte_, Bd. I. (“Staatsrecht
und Rechtsquellen”). Leipzig, 1885.

LANGE, L.—_Römische Alterthümer._ Berlin, 1856-71.

MADVIG, J.—_Die Verfassung und Verwaltung des römischen
Staates._ Leipzig, 1881-82.

MISPOULET, J.—_Les institutions politiques des Romains._ Paris,
1882-83.

MOMMSEN, TH.—_Römisches Staatsrecht._ Bd. I. (“die
Magistratur”), II. Abt. i. (“die einzelen Magistraturen”), II.
Abt. ii. (“der Principat”), III. (“Bürgerschaft und Senat”).
Leipzig, 1887-88.

MOMMSEN, TH.—_Abriss des römischen Staatsrechts._ Leipzig, 1893.

RUBINO, J.—_Untersuchungen über römische Verfassung und
Geschichte._ Cassel, 1839.

SCHILLER, H.—“Staats- und Rechtsaltertümer” (_Handbuch der
klassischen Altertums-Wissenschaft_, herausg. von Dr. Iwan von
Müller, Bd. IV. Abt. ii.). München, 1893.

WILLEMS, P.—_Le droit public Romain._ Louvain, Paris, 1888.

ZOELLER, M.—_Römische Staats- und Rechtsaltertümer._ Breslau,
1895.

2. THE CITY OF ROME, THE MONARCHY AND THE EARLY HISTORY OF ROME

BERNHOEFT, F.—_Staat und Recht der römischen Königszeit im
Verhältniss zu verwandten Rechten._ Stuttgart, 1882.

DYER, T.—_The History of the Kings of Rome._ With a prefatory
dissertation on its sources and evidence. London, 1868.

GILBERT, O.—_Geschichte und Topographie der Stadt Rom._
Leipzig, 1883.

IHNE, W.—“Early Rome, from the foundation of the city to its
destruction by the Gauls” (_Epochs of Ancient History_).
London, 1876.

LANCIANI, R.—_Ancient Rome in the light of recent discoveries._
London, 1888.

LANCIANI, R.—_The ruins and excavations of ancient Rome._
London, 1897.

LEWIS, G.—_An inquiry into the credibility of the early Roman
history._ London, 1855.

MIDDLETON, J.—_The remains of ancient Rome._ London and
Edinburgh, 1892.

PAIS, E.—_Storia di Roma._ Turin, 1898-99.

POEHLMANN, R.—_Die Anfänge Roms._ Erlangen, 1881.

RICHTER, O.—Art. “Rom” (Baumeister, A.—_Denkmäler des
klassischen Altertums_). München, Leipzig, 1889.

RUBINO, J.—_Untersuchungen_ (Abschn. ii. “von dem Königthume”).
Cassel, 1839.

SCHWEGLER, A.—_Römische Geschichte im Zeitalter des Kampfs der
Stände._ Tübingen, 1853-58.

3. THE SENATE

MOMMSEN, TH.—_Römische Forschungen_, Bd. I. Berlin, 1879.

RUBINO, J.—_Untersuchungen_ (Abschn. iii. “von dem Senate und
dem Patriciate”). Cassel, 1839.

WILLEMS, P.—_Le Sénat de la République Romaine._ Louvain,
1883-85.

4. THE EQUITES

BELOT, E.—_Histoire des chevaliers Romains considerée dans ses
rapports avec les différentes constitutions de Rome._ Paris,
1869-73.

MARQUARDT, J.—_Historiae equitum Romanorum libri quattuor._
Berlin 1840.

5. THE POPULAR ASSEMBLIES

BORGEAUD, C.—_Le plébiscite dans l’antiquité. Grèce et Rome._
Geneva, 1886.

HUSCHKE, P.—_Die Verfassung des Königs Servius Tullius
als Grundlage zu einer römischen Verfassungsgeschichte._
Heidelberg, 1838.

MOMMSEN, TH.—_Römische Forschungen_, Bd. I. Berlin, 1879.

RUBINO, J.—_Untersuchungen_ (Abschn. iv. “von den
Volksversammlungen”) Cassel, 1839.

SOLTAU, W.—_Entstehung und Zusammensetzung der altrömischen
Volksversammlungen._ Berlin, 1880.

SOLTAU, W.—_Die Gültigkeit der Plebiscite._ Berlin, 1884.

6. THE STATE DIVISIONS

BELOCH, J.—_Der italische Bund unter Roms Hegemonie._ Leipzig,
1880.

HUSCHKE, P.—_Die Verfassung des Königs Servius Tullius._
Heidelberg, 1838.

KUBITSCHEK, J.—_De Romanarum tribuum origine et propagatione._
Vienna, 1882.

KUBITSCHEK, J.—_Imperium Romanum tributim discriptum._ Vienna,
1889.

MOMMSEN, TH.—_Die römische Tribus in administrativer
Beziehung._ Altona, 1844.

7. ADMINISTRATION UNDER THE PRINCIPATE

CUQ, E.—“Le conseil des empereurs d’Auguste à Dioclétien”
(_Mémoires présentés à l’Académie des inscriptions_). Paris,
1884.

HIRSCHFELD, O.—_Untersuchungen auf dem Gebiete der römischen
Verwaltungsgeschichte._ Berlin, 1877.

LIEBENAM, W.—_Forschungen zur Verwaltungsgeschichte des
römischen Kaiserreichs._ Leipzig, 1888.

LIEBENAM, W.—_Die Laufbahn der Procuratoren bis auf die Zeit
Diocletians._ Jena, 1886.

8. THE CIVIL AND CRIMINAL COURTS

BETHMANN-HOLLWEG, M. A. VON.—“Der römische Civilprozess” (_Der
Civilprozess des gemeinen Rechts_, Bde. I. II.). Bonn, 1864.

GEIB, G.—_Geschichte des römischen Criminalprocesses bis zum
Tode Justinians._ Leipzig, 1842.

GREENIDGE, A.—_The legal procedure of Cicero’s time._ Oxford,
1901.

KELLER, F. L. VON.—_Der römische Civilprozess und die
Actionen._ 5te Ausg. bearbeitet von Adolf Wach. Leipzig, 1876.

MOMMSEN, TH.—_Römisches Strafrecht._ Leipzig, 1899.

PUNTSCHART, V.—_Die Entwicklung des grundgesetzlichen
Civilrechts der Römer._ Erlangen, 1872.

RUDORFF, A.—_Römische Rechtsgeschichte_, Bd. II. Leipzig, 1859.

WLASSAK, M.—_Römische Processgesetze. Ein Beitrag zur
Geschichte des Formularverfahrens._ Leipzig, 1888-91.

WLASSAK, M.—_Edict und Klageform._ Jena, 1882.

ZUMPT, A.—_Das Criminalrecht der römischen Republik._ Berlin,
1865-69.

9. PRIVATE AND CRIMINAL LAW

CUQ, E.—_Les institutions juridiques des Romains._ Paris, 1891.

CZYHLARZ, C. VON.—_Lehrbuch der Institutionen des römischen
Rechts._ Prague, Vienna, Leipzig. 1895.

GIRAUD, C.—_Histoire du droit Romain ou introduction historique
à l’étude de cette législation._ Paris, 1847.

GOODWIN, F.—_The Twelve Tables._ London, 1886.

IHERING, R. VON.—_Geist des römischen Rechts auf den
verschiedenen Stufe seiner Entwicklung._ Leipzig, 1877-83.

KARLOWA, O.—_Römische Rechtsgeschichte._ Leipzig, 1885.

LABOULAYE, E.—_Essai sur les lois criminelles des Romains
concernant la responsabilité des magistrats._ Paris, Leipzig,
1845.

MITTEIS, L.—_Reichsrecht und Volksrecht in dem östlichen
Provinzen des römischen Kaiserreichs._ Leipzig, 1891.

MOMMSEN, TH.—_Römisches Strafrecht._ Leipzig, 1899.

MUIRHEAD, J.—_Historical introduction to the private law of
Rome._ Second edition revised and edited by H. Goudy. London,
1899.

ORTOLAN, E.—_Histoire de la législation Romaine._ 1884.

ORTOLAN, E.—_Explication historique des instituts de l’empereur
Justinien._ Paris, 1851.

REIN, W.—_Das Criminalrecht der Römer von Romulus bis auf
Justinianus._ Leipzig, 1844.

ROBY, H.—_An introduction to the study of Justinian’s Digest_,
Cambridge, 1886.

RUDORFF, A.—_Römische Rechtsgeschichte_, Leipzig, 1857-59.

SOHM, R.—_The institutes of Roman law._ Translated by J. C.
Ledlie, with an introductory essay by E. Grueber. Oxford, 1892.

VOIGT, M.—_Die zwölf Tafeln. Geschichte und System des Civil- und
Criminal-Rechtes, wie Processes der XII. Tafeln nebst deren
Fragmenten._ Leipzig, 1888.

VOIGT, M.—_Römische Rechtsgeschichte._ Leipzig, 1892.

ZUMPT, A.—_Das Criminalrecht der römischen Republik._ Berlin,
1865-69.

10. PUBLIC ECONOMY

CUNNINGHAM, W.—“An essay on Western civilisation in its
economic aspects” (_Ancient Times_, Book III). Cambridge, 1898.

DUREAU DE LA MALLE, A.—_Economie politique des Romains._ Paris,
1840.

MARQUARDT, J.—_Römische Staatsverwaltung_, Bd. II. 2te. Aufl.,
besorgt von H. Dessau und A. von Domaszewski. Leipzig, 1884.

11. SOCIAL CONDITIONS

FRIEDLÄNDER, L.—_Darstellungen aus der Sittengeschichte Roms
in der Zeit von August bis zum Ausgang der Antonine._ Leipzig,
1862-71.

INGRAM, J.—_A history of slavery and serfdom_ (ch. iii.).
London, 1895.

MARQUARDT, J.—_Das Privatleben der Römer._ 2te. Aufl., besorgt
von A. Mau. Leipzig, 1886.

VOIGT, M.—“Privataltertümer und Kulturgeschichte” (_Handbuch
der klassischen Altertums-Wissenschaft_, herausg. von Dr. Iwan
von Müller, Bd. IV. Abt. ii.). München, 1893.

WALLON, H.—_Histoire de l’esclavage dans l’antiquité._ Paris,
1879.

12. THE GUILDS

COHN, M.—_Zum römischen Vereinsrecht._ Berlin, 1873.

LIEBENAM, W.—_Zur Geschichte und Organisation des römischen
Vereinswesens, drei Untersuchungen._ Leipzig, 1890.

MOMMSEN, TH.—_De collegiis et sodaliciis Romanorum._ Kiel, 1843.

WALTZING, J.—_Etude historique sur les corporations
professionelles chez les Romains depuis les origines jusqu’à la
chute de l’Empire d’Occident._ Louvain, 1895-99.

13. RELIGIOUS ORGANISATION IN ITS POLITICAL ASPECT

BEURLIER, E.—_Essai sur le culte rendu aux Empereurs Romains._
Paris, 1890.

BOISSIER, G.—_La religion Romaine d’Auguste aux Antonins._
Paris, 1874.

BOUCHÉ-LECLERCQ, A.—_Les pontifes de l’ancienne Rome._ Paris,
1871.

GUIRAUD, P.—_Les assemblées provinciales dans l’Empire Romain_,
Paris, 1887.

MARQUARDT, J.—“De provinciarum Romanarum conciliis et
sacerdotibus” (_Ephemeris Epigraphica_, vol. i. pp. 200-14).

MOURLOT, F.—_Essai sur l’histoire de l’Augustalité dans
l’empire Romain._ Paris, 1895.

14. THE MUNICIPAL TOWNS

KUHN, E.—_Die städtische und bürgerliche Verfassung des
römischen Reichs bis auf die Zeiten Justinians._ Leipzig,
1864-65.

LIEBENAM, W.—_Städteverwaltung im römischen Kaiserreiche._
Leipzig, 1900.

MOMMSEN, TH.—“Die Stadtrechte der latinischen Gemeinden
Salpensa und Malaca in der Provinz Baetica” (_Abhandlungen der
philologisch-historischen Classe der königlich sächsischen
Gesellschaft der Wissenschaften_, Bd. II.). Leipzig, 1857.

15. THE PROVINCES

ARNOLD, W.—_The Roman system of provincial administration to
the accession of Constantine the Great._ London, 1879.

MARQUARDT, J.—_Römische Staatsverwaltung_, Bd. I. Leipzig, 1881.

MOMMSEN, TH.—_The provinces of the Roman Empire from Caesar to
Diocletian._ Translated by William P. Dickson. London, 1886.

16. SOURCES AND DOCUMENTS

BRUNS, C.—_Fontes juris Romani antiqui._ Freiburg, 1893.

KIPP, TH.—_Quellenkunde des römischen Rechts._ Leipzig, 1896.

17. INSCRIPTIONS

_Corpus Inscriptionum Latinarum._ Berlin.

_Inscriptions Regni Neapolitani_, ed. Mommsen. Leipzig, 1852.

MOMMSEN, TH.—_Res gestae divi Augusti ex monumentis Ancyrano et
Apolloniensi._ Berlin, 1883.

ORELLI-HENZEN.—_Inscriptionum Latinarum selectarum collectio._
Zürich, 1828-56.

PELTIER, C.—_Res gestae divi Augusti._ Paris, 1886.

WILMANNS, G.—_Exempla inscriptionum Latinarum._ Berlin, 1873.

18. DICTIONARIES OF ANTIQUITIES CONTAINING ARTICLES ON ROMAN
CONSTITUTIONAL LAW

DAREMBERG-SAGLIO.—_Dictionnaire des antiquités Grecques et
Romaines_ (A to Lib). 1875, etc.

PAULY.—_Real-Encyclopädie der classischen
Alterthumswissenschaft._ 6 Bde. Stuttgart, 1839.

PAULY-WISSOWA.—_Real-Encyclopädie_, etc. (a new edition of the
above, A to Corn). 1893, etc.

SMITH.—_Dictionary of Greek and Roman antiquities._ Third
edition, edited by W. Smith, W. Wayte, and G. E. Marindin.
London, 1890.

19. HISTORIES OF ROME

DURUY, V.—_History of Rome and of the Roman people, from
its origin to the establishment of the Christian Empire._
Translated by W. J. Clarke. Edited by J. P. Mahaffy. London,
1883-86.

GARDTHAUSEN, V.—_Augustus und seine Zeit._ Leipzig, 1891-96.

GIBBON, E.—_The history of the decline and fall of the Roman
Empire._ Edited by J. B. Bury. London, 1896-1900.

HERTZBERG, G.—_Geschichte des römischen Kaiserreichs_ (Oncken,
W.—_Allgemeine Geschichte_, Hauptabth. 2, Thl. l). Berlin, 1880.

HOW (W.) and LEIGH (H.).—_A history of Rome to the death of
Caesar._ London, 1896.

IHNE, W.—_Römische Geschichte._ Leipzig, 1868-90.

LONG, G.—_The decline of the Roman Republic._ London, 1864-74.

MERIVALE, C.—_History of the Romans under the Empire._ London,
1875-76.

MOMMSEN, TH.—_The history of Rome._ Translated by W. P.
Dickson. London, 1894.

NIEBUHR, B.—_Römische Geschichte._ Neue Ausgabe von M. Isler.
Berlin, 1873-74.

NIEBUHR, B.—_History of Rome._ Translated by Walter (F.), Smith
(W.), and Schmitz (L.). London, 1827-44.

PELHAM, H.—_Outlines of Roman History._ London, 1893.

PETER, C.—_Geschichte Roms._ Halle, 1881.

RANKE, L. VON.—_Weltgeschichte._ Thl. II. (“die römische
Republik und ihre Weltherrschaft”). Thl. III. (“das altrömische
Kaiserthum”). Leipzig, 1883.

SCHILLER, H.—_Geschichte der römischen Kaiserzeit._ Gotha,
1883-87.

CHAPTER I

THE EARLIEST CONSTITUTION OF ROME

§ 1. _The Growth of the City_

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

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

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

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

§ 2. _The Elements of the Population—Patricians, Plebeians, Clients_

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i.) It has been held that the clans were the unit of voting in the
original popular assembly at Rome, the _comitia curiata_.[40] But the
passage on which this conclusion is based only implies that, originally,
membership of this _comitia_ depended on possession of a _gens_;
eventually, at a time when the _curia_ included Plebeians, on possession
of a _familia_, and therefore presumably of a _stirps_ or _genus_.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 4. _The Citizens and the Political Subdivisions of the State_

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Of the military burdens tradition has preserved some plausible details.
The army was known as the _legio_ or “gathering,”[142] and was composed
of three “thousands” (_milites_),[143] one from each of the three tribes.
These foot-soldiers were commanded by three or nine tribal officers, the
_tribuni militum_.[144] The cavalry consisted of three hundred _celeres_,
one from each of the three tribes, each commanded by three _tribuni
celerum_. When the Patriciate was enlarged by the addition of the _gentes
minores_,[145] these three hundreds (_centuriae_) were increased to
six.[146]

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

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

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

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

§ 5. _The Monarchical Constitution_

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

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

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

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

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

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

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

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

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

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

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

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.

The authority of the Senate (_auctoritas patrum_) is mentioned in
connexion with all the transmissions of the supreme office.[185] It is an
authority, however, which did not spring from any theory of the Senate’s
possessing elective powers, but was simply a result of the universal
principle that no man in authority should act without taking advice
of his _consilium_, and was merely an outcome of the constitutional
necessity which the king was under of consulting the Senate on all great
measures affecting the popular welfare. The greatest of these would be
the appointment of a successor.

Secondly, we are told of a formal ratification of the king’s power by the
people assembled in the _comitia curiata_, one which continued into the
Republic under the title of the _lex curiata_, a formal sanction always
required for the ratification of an _imperium_ already assumed.[186] It
is said to have had this character even in the time of the monarchy, and
this was thought to be shown by the fact that the king himself proposed
the _lex curiata_ which was to give the sanction for the exercise of
his own power.[187] Such procedure was, indeed, necessary, since no
one but the king had the right of putting the question to the people;
consequently we must accept the view that the _lex curiata_ was not
absolutely necessary for the exercise of power, and might be legally,
though not perhaps constitutionally, withheld, as it was by King Servius
during the early part of his reign.[188]

The Roman jurists, who believed that the king was elected, credited
the people with two distinct acts in the creation of a king—first, his
election, and then the formal ratification of this election.[189] A
parallel for this seemed to be furnished by Republican usage, where the
_lex_ was taken by magistrates already elected as a necessary preliminary
to the exercise of the _imperium_. But at this period the magistrates
were not elected by the _comitia curiata_, and the _lex_ of this assembly
is a mere survival, a reminiscence of the formal sovereignty which
continued to be vested in the _curiae_. The _lex curiata_ is much more
comprehensible in origin if the king was first nominated independently of
the people and then challenged their allegiance. It was probably little
more than an acclamation on the first summons of the _curiae_ by the
king. The preceding king must have already made known to the people his
choice of a successor, and the popular sentiment would have been already
expressed; thus there was little chance of adverse shouts when the new
king challenged the allegiance of his burgesses. If there was a chance
of the challenge not being accepted, it might, as we saw, be withheld.
But an exercise of the regal _imperium_ which was not sanctioned by these
two acts of Senate and people—the expressed will of the one and the
declared allegiance of the other—was regarded by later authorities as
unconstitutional.[190]

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[191]—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.

This was the inauguration, which differed from the taking of the
auspices. In the ordinary form of the _auspicia_ the individual entering
on office has himself the right of _spectio_;[192] in the Republic it
belonged to magistrates as such, and was never regarded as a merely
priestly function. In the special inauguration, on the contrary, the
_spectio_ is taken by some other than the person inaugurated. The
priest-king Numa is naturally associated with this ceremony by tradition;
by him an appointed augur is employed to watch for signs,[193] and this
ceremony of inauguration by one of the priesthood, other than the person
so inaugurated, is represented as being from this time onwards a standing
part of the procedure requisite for entrance on the regal office. But
this legend of Numa is rendered somewhat incredible by the fact that the
augurs have no right of _spectio_, and that of all the priests of the
Republic it is only the semi-magisterial _pontifex maximus_, the head of
the state religion, who has the right of taking auspices. The fact that
the _rex sacrorum_ in the Republic had a special inauguration[194] might
lend support to the legend, were it not that this _rex_ had become wholly
a priest and thus lost his right of intercourse with the gods through
the _spectio_. The question of the inauguration of the king, unimportant
in itself, runs up into two wider questions; the first is whether there
was a separation in idea between the king’s magisterial and his priestly
functions; the second, whether the king was himself _pontifex maximus_
and thus the supreme head of the Roman religion.

For an answer to the first question it is not safe to appeal to later
examples, for the priesthood and the magistracy may have been first
sundered during the Republic. But tradition[195] and survivals represent
the king as the _first priest_ in the community. His successor, the
_rex sacrorum_, ranks, as a priest, above the three great _flamines_
and the _pontifex maximus_ in the order of the priesthood (_ordo
sacerdotum_);[196] the religious duties of this _rex_ point to the fact
that the king’s functions were a regular _cultus_, not the occasional
religious duties of a Roman magistrate,[197] while his wife, the _regina
sacrorum_, had her own simultaneous sacrifices.[198]

But the position of first priest did not in the Republic imply the
headship of the Roman religion; the chief pontiff, who is its head,
comes, as we saw, low in the order of the priesthood. The importance of
_cultus_ and of religious authority springing from higher knowledge are
not the same. The pontiffs are only secondarily a priestly, primarily
they are a religious order, whose position is based on the knowledge
of religious law (_fas_). The separation between the true priesthood
and the presidency of religion may, indeed, have been a Republican
development, due to the secularisation of the magistracy; the priestly
functions of the magistrate being continued in the _rex sacrorum_, and
the religious presidency being also separated from the civil power,
but vested in another official, the chief pontiff. But it is possible
that the separation may have been primitive, and that _cultus_ and the
knowledge of religious law did not go together. It is evident that
great uncertainty prevailed as to the king’s relation to the pontifical
college. While one account speaks of Numa selecting Numa Marcius as
“_the_ pontiff,”[199] another describes the same king as instituting five
pontiffs,[200] and we are further told that, before the _lex Ogulnia_
(300 B.C.), the college consisted of four members.[201] The discrepancy
between the two last accounts has been reconciled by supposing that
the king himself was reckoned as a member of the college, and that the
expulsion of the king reduced the number from five to four.[202] It is
possible that the king did not bear the title _pontifex maximus_ and was
yet head of the college; it is even possible that, as one account which
we have quoted seems to indicate,[203] there was a chief pontiff as his
delegate. We can hardly refuse him a place at this board in face of the
evidences which point to his universal headship of religion. The creation
of the augurate and the priesthoods is his work. Romulus appoints the
augurs;[204] Numa institutes the three great Flamines, the Salii, and
the Pontifex, although most of the important ceremonies of religion are
performed by himself personally.[205] Consequently we may conclude that
the appointment of special individuals to these priesthoods must have
been a part of the king’s office.[206] It has even been held (chiefly
as an inference from the fact that the Vestals and Flamens were in the
_potestas_ of the _pontifex maximus_ of the Republic) that the former
were the king’s unmarried daughters who attended to the sacred fire of
the state in the king’s house, the latter his sons whose duty it was
to kindle the fire for the sacrificial worship of particular deities,
Jupiter, Mars, and Quirinus. This pleasing picture may have represented
the primitive state of the patriarchal kingship; but this had been
long outgrown before the close of the monarchy. There we find a fully
developed hierarchy and the existence of religious guilds, such as those
of pontiffs and augurs, who cultivate the science, not the mere ritual of
religion, and who have no possible connexion with the king’s household
arrangements.

At the head of this imposing organisation stands the _rex_, and, in
virtue of this position, he is the chief expounder of the rules of divine
law (_fas_). It is a law which has hardly any limits, running parallel
with civil justice (_jus_) but far beyond its bounds. Three methods of
its operation may conveniently be distinguished. One is purely religious
and ritualistic and is expressed in the control of priesthoods, religious
colleges, and cults. The second asserts itself in a control over the life
of the ordinary citizen in matters criminal and civil. The third is that
which connects the Roman state with other independent communities and
forms the international law of the period.

(i.) The control over priesthood and _cultus_ belongs to the history
of religion rather than to that of constitutional law, and it chiefly
presents a legal aspect in connexion with the question of religious
jurisdiction. The difficult questions that arose in Republican times
from the clashing of the religious and the civil power could hardly have
been heard of as yet, for the supreme control of both was vested in the
same man. But the very nature of this disciplinary jurisdiction over
priests has been a matter of some dispute. The favourite hypothesis of
a family jurisdiction has been applied to the case, and the hypothesis
may conceivably be correct so far as the Flamens and the Vestals are
concerned, although even in this sphere it is doubtful by what paternal
right the head of religion could do the Vestal’s paramour to death. Other
phases of the power are still more inexplicable on this ground. A right
of punishing augurs for a breach of ritualistic rules survived into the
Republic, and seems to be a jurisdiction exercised over them as members
of a religious body. There is, however, no trace of the priesthood
holding a privileged position, and in all secular matters its members
are subject to the ordinary law. Such privileges as they possess rest on
religious scruples. When the Flamen was caught (_captus_) for the god, he
became free from the paternal power,[207] and the civil authority could
not compel him to take an oath.[208] The persons of the Vestals were
inviolable;[209] the sanctity of both Flamens and Vestals also invested
them with the right of _asylum_. The bonds were struck off the prisoner
who took refuge in the Flamen’s house; and, if the criminal on the way to
punishment met him or the Vestal, he could not be scourged or executed
on that day. But it is only in these two cases that the severance from
the world is strongly marked; we have no reason for believing that, in
the earliest period of Rome’s history, the members of the religious
orders were isolated from the mass of the people with privileges and a
jurisdiction all their own.

The control of the _cultus_, and the maintenance of its purity, are
marked as one of the earliest duties of the _pontifex maximus_, and must
have belonged to the king. It is he that sees that no ancestral right is
neglected, no foreign one acquired.[210] Here we have a religious power
that governs more than the priesthood; the maintenance of the _sacra
privata_ are as important in its eyes as that of the _sacra publica_, and
its supervision must have extended beyond the limits of the Patriciate;
for it is impossible to believe that religion cared only for the _sacra_
of the patrician clans, and aimed only at preventing them from corrupting
their ancestral worship. The Plebeian and the client were under the
protection of the gods, and might bring down a curse on the community by
reckless innovation or neglect.

(ii.) The control exercised by _fas_ over the citizens’ life in
matters not immediately connected with ritual and worship may be first
illustrated by its penal sanctions. We cannot, indeed, say that there was
a time when the Roman law regarded every crime as a sin, for from the
very first we are confronted with a dualism, and religious and secular
sanctions exist side by side. But religion has left a deeper impress
here than elsewhere—in the name given to punishment,[211] in the form of
its infliction, in the still stranger fact that, by the disappearance of
religious sanctions, breaches of obligation that the modern world regards
as crimes remained unpunished by the secular arm.

The punishment for sin must be some form of expiation. This is the
_piaculum_ adjudged in the monarchy as in Republican times by the head
of religion; and not adjudged arbitrarily, for even by the close of
the monarchical period classes of offences had doubtless been drawn up
by the pontiffs with the equivalent expiation, which was directed to
avert the anger of the gods from the whole community. Apart from the
regularly recurring lustrations at the census—the consequence of the
sense of universal sinfulness in the community—individual misdeeds could
be expiated in this way. Such was a murder that was unintentional or
in which mitigating circumstances were present,[212] and such was the
violation of the chastity of Juno’s person through the touching of
her altar by a _paelex_.[213] In graver cases expiation could only be
accepted where there was no intent,[214] as in the wrong done to a god
by swearing falsely in his name.[215] There was also a class of deadly
sins for which the gods would accept no atonement but the life and the
goods of the sinner himself. Amongst the acts which called forth this
_consecratio capitis_ were the violation of the relations of client and
patron,[216] the ill-treatment of elders by their children,[217] the
pulling up or alteration of boundary stones,[218] the destruction of a
neighbour’s corn by night.[219] The god thus appeased was often the deity
who was held to be specially offended by the act; but sometimes the head
and the goods were not dedicated to the same divinities. The person was
adjudged to Jupiter, the dispenser of life; the landed property to the
gods who nourish the human race, Ceres and Liber.[220] This custom of
consecration gradually ceased to have its literal fulfilment. A man might
still be declared _sacer_, but excommunication had taken the place of
immolation. Such a man was cut off from all divine and, therefore, from
all human help, and his slayer was blood-guiltless.[221] This theory, of
a man being cut off from the community while his life was spared, became
of great importance in the history of Roman criminal law. It survived in
the “interdiction of fire and water” (_aquae et ignis interdictio_), and
familiarised the Romans with the idea that the severest penalty did not
require the sacrifice of life.

In matters of private law we have already witnessed the presence of
religion in marriage, adoption, testament, and the transmission of the
_sacra_. Its authority may be further illustrated by the formularies
of civil procedure. Here the form of words was all-important, and in
the early Republic all binding _formulae_, whether for oaths that were
to be effectual, for vows or for consecration, were known only to the
pontiffs. The solemn forms of law (_legis actiones_) issued from the
same authority, and in one of their most frequent manifestations, the
_sacramentum_, the procedure was distinctly religious.[222] But who could
say whether the king, when he gave the prescribed form of words for an
action, acted as a religious or a civil head, as the representative of
_fas_ or _jus_? Here we are on the borderland between the two.

(iii.) Nations know no common _jus_, and _fas_ is the sole support of
international law. Each people is protected by its own divine guardians;
hence a war of two nations is a contest between their gods, and a treaty
between two peoples a compact between their respective divinities. But
each nation is to some extent under the protection of the other’s gods.
Jupiter of Rome is powerless if the war commenced by Rome is unjust, and
will punish his own people if they have stained his honour by violating a
treaty. Even though there is no belief in community of guardianship, the
rights of other peoples are still conceived to be under the protection of
the Roman gods.

These beliefs necessitated elaborate religious preliminaries to the
declaration of a war in order that it might be just and holy (_justum
piumque_),[223] as well as ceremonies for the conclusion of a peace that
was to bind the public conscience (_fides publica_).[224] Such a ritual
may have been performed, originally, by the king himself; but tradition
states that, at a very early period, a special guild of priests, the
Fetiales or public orators, were appointed for this purpose.[225] Their
chief functions were the declaration of war and the conclusion of peace,
but the ritual observed in both of these acts may be more appropriately
described when we are dealing with the international relations of Rome.
There were other religious preliminaries to a war which, though not
necessitated by divine law, it was highly expedient to observe, in order
to increase the chances of victory. Vows (_vota_) were offered to the
native gods, and for these to be valid they must be couched in a form
prescribed by the pontifical college.[226] And sometimes the king, before
a battle or a siege, chants an incantation (_carmen_), the purport of
which is to weaken the loyalty of the enemies’ gods to their worshippers,
and to bring them over to the side of Rome. He bribes them with temples,
offerings, and the honours of a special cult.[227] If the bribery is
effective and the city falls, he must carry out his pledge. The conquered
gods are received at Rome; and their worship is guaranteed by the
distribution of their cults over the patrician clans.[228] The instances
preserved of this _devotio_ and _evocatio_ naturally date from the time
of the Republic.[229] During this period the forms are prescribed by the
pontiffs. But the antiquity of the procedure is beyond question. The
results of evocation on the part of the king, who was his own pontiff,
are manifested in the local worships of the conquered towns of Latium,
which found an early home at Rome.

If we turn from the religious to the civil powers of the king, it is
easier to estimate their extent than to determine the precise modes
of their exercise. Later belief credited him with the sole executive
power of the state. The Roman kings possessed πᾶσα ἀρχή, and exercised
the _imperium_ at their own discretion.[230] Such statements are not
surprising if we remember what is implied in the _imperium_, and that
there appear to have been no legal limitations to its exercise during
the monarchy. _Imperium_ implied the combination of the highest military
and civil authority; it united jurisdiction with command in war, and
it included the further right of intercourse with the people (_jus
rogandi_); while the later restrictions on this power, the limitation of
office by time or by colleagueship, had not yet been created. The king
held office for life, and he had no colleague; for the other officials in
the state must have been mere delegates whom, in the strict theory of the
constitution, he permitted to exist.

But if the king’s power was legally free from restraint, and we do not
believe that there was any large body of _leges_ binding his authority,
it could not have been free from the limitations imposed by custom and
constitutional usage. Customary law securing rights for the people
is said to have been raised to the level of positive law by Servius
Tullius.[231] But even the earlier usages must have formed a kind of
code—such a code as that which contained the pontifical ordinances
known as the _leges regiae_.[232] It was the belief in the existence
of this early customary law which led to the later description of the
king’s power as an _imperium legitimum_.[233] Amongst his constitutional
obligations was that of consulting the Senate in any important matter.

There can be little doubt that the original council of elders (_senatus_)
was a body of nominees selected by the king as his permanent advising
body (_consilium publicum_).[234] In consequence the position of senator
could not have been a life-office; there could neither have been any
definite mode of attaining the dignity, nor any claim on the part of
an individual to retain it. A new king might decline to summon some
of his predecessor’s councillors; he might even, perhaps, change the
_personnel_ of his advisers during the course of his reign. It was in
later times believed that the freedom of selection was so great that no
stigma attached to members who were “passed over” (_praeteriti_) by the
king.[235]

Yet tradition attributes a definiteness to the Senate which is not
consistent with the idea of a purely arbitrary selection. Its numbers at
any given time are fixed, and it is to some extent made representative
of the whole patrician community—for an increase in the number of full
burgesses involved a corresponding increase in the numbers of this
body.[236] The number, originally 100,[237] was raised by successive
steps to 300 before the close of the monarchy.[238] The two obvious units
of representation were the _curiae_ and the clans; but the latter, from
their larger numbers, formed a better basis for reflecting the opinion of
the whole community, and tradition does seem to have imposed a kind of
constitutional necessity on the king of distributing his councillors as
evenly as possible amongst the patrician _gentes_.[239] It was thus that
the distinction between the older and the newer clans was perpetuated
in the procedure of the Senate;[240] but the clan-influence left its
strongest mark by giving a name to the members of the body itself. It was
the leading heads of families (_patres familias seniores_) that the king
summoned; and, in asking their advice, he addressed them as “heads of
houses” (_patres_).

The primitive Senate is credited with two standing powers—the _patrum
auctoritas_ and the initiation of an _interregnum_. Neither of these
prerogatives was directly contemplated by the constitution, and the
Senate never becomes a corporation possessing powers in its own right
until the time of the Empire. Tradition mentions the “authority of the
fathers” as being necessary for the appointment of a new king; it leaves
it to be inferred that it was required for the validity of laws as well,
an inference probably not true of the period of the monarchy. As we
have already explained, it was a legal right only in so far as it was
an extreme instance of the necessity the magistrate was under of taking
advice. Perhaps towards the close of the monarchy, with reference to
the choice of a successor to the throne, custom had made it a standing
prerogative. The _interregnum_ rests on a somewhat different basis; it
was a power which religion enjoined should be in the hands of the whole
patrician community—usage had delegated the power to the patrician
Senate; so here again we have a prerogative which rested wholly on custom.

A privilege only less constant than these was probably the control of
foreign policy. The formula of the Fetiales, which is said to have dated
from their institution during the monarchy, contains the clause: “But
on these matters we will consult the elders at home, how we may obtain
our rights.”[241] It was thus the duty of the king to consult the Senate
in all matters affecting the international relations of the state. For
a declaration of war, perhaps, even this was not sufficient. Tradition
believed that, in this matter, reference must be made to the people
assembled in the _comitia curiata_.[242]

On the other hand, the right of making treaties (_foedera_) with states
could not have been limited in this way. For the treaty made in time of
peace the Senate, and perhaps the people, were consulted; but this could
hardly have been the case with the treaty which closed a war and which
was made on the field of battle. In the Republic there survives a shadowy
and disputed right of the _imperator_ in the field to make a treaty which
shall bind the people. The right was denied, but only on the ground that
the general could not take an oath binding on the public conscience. But
the king was at once general and high-priest; he could doubtless take
this oath even without the assistance of his servants, the Fetiales.

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,[243] and the statements
which record this right find support in Republican survivals. The control
of the spoils of war (at least of the movable portions) 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.

The council of war was a type of the smaller special _consilia_, which
the king doubtless employed to advise him in different branches of the
administration; and such special councils must have been chosen from
the great _consilium publicum_, the Senate. One of the most important
of these was that which furnished his assessors in jurisdiction. That
it became the custom, in the more important cases judged by the king in
person, to employ a _consilium_ of some sort, is stated in the charge
brought by tradition against Tarquinius Superbus that he neglected
this essential guarantee of even justice.[244] In the secular criminal
jurisdiction of the king such a council would doubtless have been taken
from the Senate. In the religious jurisdiction, which we have considered,
the pontiffs would have been the advising board.

Senators also must have been chiefly chosen as delegates of the king,
except, perhaps, those appointed for subordinate command in war;[245]
there military fitness would be chiefly looked to.

The chief of these delegates was the prefect of the city (_praefectus
urbi_), an _alter ego_ left behind in the capital by the king when he
himself was absent in the field.[246] To him must have been delegated
the whole of the executive power, and with it the right and duty of
consulting the Senate. It is not probable that the right of questioning
the people was or could be delegated.[247] In criminal jurisdiction a
distinction was believed to have been made in the cases brought before
the king; the more important were tried by himself in person, the less
important transmitted to judges chosen from the Senate.[248] This may be
the germ of a distinction which is said to have been perfected by Servius
Tullius. Crimes affecting the public welfare he tried himself; wrongs
done to private individuals he entrusted to others.[249]

This principle of delegation is mentioned only in connexion with criminal
jurisdiction. But, whatever its extent, it necessitated the grant by
the magistrate to his delegate of a _formula_ or _lex_, which was the
expression of _jus_. This _jus_, “that which is right or fitting,”
expressed the order of society, as realised through human agency, not
directly through the divine will.[250] It is possible that even in early
Rome it was treated as a right, a faculty of action (_facultas agendi_)
or liberty enjoyed by one man against another, by individuals against
corporations or by corporations against individuals. The differentiation
between the rights of the state and the rights of the individual, always
marked in procedure long before it is formulated in theory, finds
expression in the change which tradition attributes to Servius.[251] But
there was never any clear line of demarcation between the two spheres.
Much of what we call criminal law was at Rome a matter for civil actions
dependent on private initiative, and such actions could in early times
be brought only by the head of the family. But in so far as the early
Romans had a criminal law, in so far, that is, as an offence against the
individual could be regarded as a wrong done to society, this law was a
part of the _jus publicum_.

The king was the sole exponent of this sense of violated right, and
the sole interpreter of the _jus_ fixed by custom or by law. Over the
penalty he probably had little control. It was enjoined in his ruling
and carried out by his lictors; but, in its various forms—death by
the _arbor infelix_ or from the Tarpeian rock—it was fixed by the _mos
majorum_. The trial was a personal investigation (_quaestio_) undertaken
by the king, with the assistance of a chosen body of advisers; and he
might give judgment himself. But sometimes his judgment was conditioned.
He specified the crime under which the accused was to be tried, and
the penalty to be inflicted, but left the finding on the facts to his
delegates.[252] Two such classes of delegates are attributed to the regal
period, the _duumviri perduellionis_ and the _quaestores parricidii_.[253]

There may have been an appeal from the delegates to the king, but
tradition does not credit the king with any power of pardon. Whether
the power of pardon resided anywhere depends on our interpretation of
the trial of Horatius,[254] which was believed to furnish the archetype
of the _provocatio_. From this story appears the belief, which is often
stated by other authorities,[255] that the appeal to the people existed
in the regal period, but one modified by the view that the citizens
had no standing right of appeal against the king such as that secured
against the Republican magistrate by the _lex Valeria_. The king, Tullus
Hostilius, _allows_ the appeal.[256] The early dictatorship was similarly
exempt from the necessity of permitting it, and on one occasion the
precedent of Horatius was appealed to for the purpose of showing that,
as the king had allowed, so the dictator should allow, the appeal.[257]
But the dictatorship is a revival of the _military_ side of the monarchy
with the military jurisdiction which the king exercises over Horatius.
It is quite possible that before the close of the monarchy custom had
established different spheres of criminal jurisdiction for the people and
the king respectively;[258] in some the people might have had a right
to be judges in the last resort, and it is the idea of calling away a
case to another court that is suggested by the word _provocatio_, not
the modern idea of pardon.[259] In other spheres the king could judge
alone; the _provocatio_ here is an act of grace. If, however, we consider
the extent of the military and religious jurisdiction of the king, the
competence of the people must have been small;[260] and the _provocatio_
itself may be a growth of the later monarchical period, the result of
custom, and of a custom based chiefly on the permit of the king.

Civil jurisdiction is said to have been based on the king’s
judgment.[261] How far this royal jurisdiction was personal we cannot
say, but under all circumstances the king was the chief source of
the _jus privatum_, in so far as he and his pontiffs alone knew the
formularies of action,[262] the most precise verbal accuracy in which
was necessary for the successful conduct of a suit. It is probable that
in many cases the king gave merely the formulary of action, that is,
the ruling in law, and then sent the case before a private judge or
arbitrator (_judex privatus, arbiter_), thus illustrating (although not,
perhaps, on the scale recognised during the Republic) the fundamental
division of judicial procedure into _jus_ and _judicium_. This division
of jurisdiction is probably primitive and not, as has sometimes been
thought, a modification introduced by the later monarchy.[263] Even in
Republican times the _judex_ was chosen by consent of the parties.[264]
He was an arbitrator between the litigants agreed to by a mutual
compact,[265] and an outcome of the notion of self-help so prominent in
early Greek and Roman law. But one who knows the forms of action has to
stand by and see that the words of these forms are correctly repeated.
This depositary of _jus_ is the king or one of his pontiffs. Hence
eventually the public official comes to assist at the appointment of the
judge. From this it is but a slight step to give the formula of action
which settles the law of the case, and to leave it to the _judex_ to
decide the question of fact.

§ 6. _The Servian Constitution_

At some period before the close of the monarchy the absurdity of the
existing constitutional arrangements began to be felt. In matters of
private law there was not a single important difference between a free
Plebeian and a Patrician; and large numbers of that portion of the
Plebs which had sprung from clientship were virtually in a condition of
independence. Although their tenure of the soil might be precarious,
their right of acting for themselves in the law courts questionable, it
must have been practically impossible to avoid the appearance of full
ownership where the lord had not asserted his right for generations,
or to prohibit the personal enforcement of claims where the original
patronage had been long forgotten or had lapsed through the extinction of
the patrician family on which the original client had been dependent. It
was, in fact, impossible to say where the class of free Plebeians ended
and that of protected Plebeians began. It was better, for the purposes
contemplated by the impending reform which bears the name of Servius
Tullius, that they should be regarded as on an equality, and that both
classes should make up a single order. The essence of this reform is,
in fact, the recognition of _equality of rights in landed property_.
Ownership of Roman land _ex jure quiritium_ was guaranteed to the whole
plebeian order—probably even to those dependants and emancipated slaves
whose clientship, and therefore whose precarious tenure of the soil, was
patent;[266] and with respect to the rights of _commercium_ the order was
put on a level with the Patriciate.

So far the object of the reform seems to be to confer privileges on
certain classes of the Plebeians. Its real meaning was wholly different.
The intention of the reformer—one which explains the readiness with
which the change seems to have been accepted by the Patricians[267]—was
to impose burdens on the whole plebeian community. A recognition of the
rights of property was a necessary preliminary to the imposition of
taxation and of the full quota of military service. The _patres_, who
welcomed this distribution of burdens, did not foresee that from these
obligations would flow a fresh series of rights which would impair their
monopoly of political power.

The Plebeians were being recognised for the first time as, in a sense,
members of the state. The first problem was the choice of a medium
through which they should be incorporated in it; for simple membership
of a state which was not based on membership of some lower unit was
inconceivable to the Graeco-Roman world. Many of the Plebeians had no
clans; they could not, therefore, be made members of the three primitive
tribes,[268] and when the change was first mooted, it was, probably
for the same reason, thought impossible to make them members of the
_curiae_.[269] New tribes must be invented which should include the
whole community. The chief burden of taxation, now imposed equally on
all classes, was to lie on land. What more natural than that the tribes
should be territorial divisions, so defined as to include all the
territory held in ownership by the Roman people? It is established that
the tribes, which are specially described as local,[270] contained only
that land which was subject to quiritarian ownership,[271] and from this
fact the deduction has been drawn that all land subject to quiritarian
ownership was included in the tribes. As the Servian tribes were believed
only to have comprised the city itself, as enclosed by the Servian
walls,[272] this view leads to the startling conclusion that no land
was held in private ownership outside the city, as its limits were fixed
by Servius—that the land outside, so far as it was not _ager publicus_,
was held by some larger corporation such as the _gens_.[273] But such a
conclusion is most improbable; it was the evolution of private ownership
which had created the rich Plebeian, who had often no clan and could not
hold in common with others, and such a holder was the least likely man in
the world to have land in or near the city, even as its limits were fixed
by Servius.

Consequently if, as seems to have been the case, the tribes did include
all landowners, they must have extended far beyond the bounds of the
city. Our authorities knew them at a time when their names indeed
survived, but when they had become strictly divisions of the city, by the
complete separation of the country from the urban tribes. If we believe
in the urban character of the four original _tribus_, we must accept the
clearly expressed but generally discredited belief preserved by Dionysius
that besides these four tribes, which comprehended only the city, Servius
established twenty-six others which took in the country districts.[274]

The view that the four tribes[275] comprised the country districts is
preferable, and is not incompatible with the fact that they certainly
designated parts of the city, nor even with the possibility of their
having been engrafted in some way on the older divisions of the _Ramnes_,
_Tities_, and _Luceres_.[276] Local creations of an artificial character,
independent of juxtaposition, are not unknown in early legislations;
they are found in the almost contemporary work of Cleisthenes of Athens.
But even this hypothesis is unnecessary; each tribe may have stretched
continuously with fairly definite boundaries beyond the city walls. The
country portions of these tribes were for a moment wholly lost by the
disastrous wars which followed the expulsion of the kings, and when the
_ager Romanus_ was again regained, a new organisation was adopted The
territory outside the walls was parcelled out into country tribes,[277]
and these grew in number as Rome’s conquests spread. The four Servian
tribe-names were kept as designations only of regions within the city.

Although the tribes were divisions of the land, and individuals were
registered in that tribe in which their land-allotment lay,[278] there is
no good reason for accepting the current belief that the landless citizen
was not enrolled in a tribe.[279] It has generally been assumed that the
only object of the Servian tribes was to furnish a system of registration
for taxation and the military levy. If this was the case, and we believe
that these burdens were imposed only on landed property, it follows as a
consequence that only holders of land were _tribules_. But there is no
evidence that their scope was so limited. They appear to be divisions of
the _populus Romanus_, and the disinherited or ruined Patrician who has
lost his land is still a member of that _populus_. The tribe to which
a landless man belonged would depend upon his domicile; it is a man’s
local position in a tribe, not the land he holds in it, which is given
as a criterion of his membership and of the political rights which it
subsequently conferred.[280]

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 (_exercitus_), 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”
(_centuria_).

For the moment we may overlook the cavalry and fix our attention on the
bulk of the citizens who form the infantry. These are split up into five
divisions, which were at a later period called _classes_. The basis of
division was wealth, and the crucial question is “what kind of wealth?”
It is almost certain that it could not have been wealth reckoned in
money. Although Rome was a seaport and a trading state, it is doubtful
whether even the old libral _as_, which was used as a medium of exchange
by weight, was in current use at this time;[281] and therefore the
detailed accounts given of the money valuations by which the classes were
fixed must refer to a later period in the history of this organisation.
The alternative that has been suggested is land.[282] There would be
no difficulty in accepting this substitute, paralleled as it is by the
similar organisation of Solon, were it not that the hypothesis ignores
sources of wealth which the earliest Roman law seems to have classed
with land, i.e. slaves and domesticated beasts. These _res mancipi_ are
as much the object of quiritarian ownership as land, and they may exist
without it. A man might own no land and yet be rich in cattle and sheep
which he drove on the _ager publicus_, or in slaves engaged in productive
handicrafts,[283] and the state was interested in all that was duly owned
and was properly the subject of assessment (_res censui censendo_);[284]
the Servian census must have been based on _res mancipi_, and to a
certain degree it was a census based on currency, for cattle (_pecus_)
were recognised as a medium of exchange (_pecunia_).

On the basis of such a census five classes were distinguished; the census
of each, in terms of the later assessment, which was probably expressed
in _asses sextantarii_, being respectively 100,000, 75,000, 50,000,
25,000, 11,000 asses.

Each of these divisions was subdivided into two with reference to
age, the _juniores_ (from eighteen to forty-five) being the effective
fighting force, the _seniores_ (forty-five to sixty) the home defence.
The final division is into the military unit, the century (_centuria_),
consisting nominally of a hundred men. This was the minimum strength of
the lowest unit, but the census list did not represent the effective
fighting force of the legion organised for battle, but the numbers
qualified for service; consequently the centuries of a particular
class were raised to the quota required to include all the members of
that class. The numerical proportion of the centuries of the different
classes to one another is very striking. The centuries of the first class
(eighty in number) are almost equal to those of the four other classes
put together (collectively ninety in number). If this table exhibits
the real proportion of social classes to one another, it would show a
wonderfully equal distribution of land in the state, one so equal as to
cause most of the landholders to be placed in the same class, for the
list would mainly represent holders of land (the other _res mancipi_
not being usually divorced from its possession). But the proportions of
the classes may only show that the centuries of richer citizens were
still regarded as forming the more permanent force, the other divisions,
not much more numerous though drawn from a larger population, being
merely supplementary. We know that members of the first class were more
perfectly equipped,[285] and the fact of their being the main strength
of the army would be proved if it were true that this class alone was
originally _classis_ (“the line”) and that all the others were _infra
classem_.[286]

As will be seen from the accompanying table of the census, the mass of
citizens whose property fell below that of the lowest class was not
wholly unprovided for. They were organised, according to Livy, into six,
according to Dionysius into five, centuries. Some of these were composed
of professional persons, whose services were indispensable to an army,
and who were, perhaps, members of the trade guilds (_collegia_) which are
said to have existed in the regal period.[287] Such were the carpenters
(_fabri_) who formed two centuries, and the horn-blowers and trumpeters
(_cornicines_ and _tibicines_) who formed one each.

THE SERVIAN CLASSIFICATION

THE CAVALRY

18 centuries, with no fixed property qualification.

THE INFANTRY

_1st Classis_—100,000 asses (Livy and Dionysius),[288] 120,000
asses (Pliny and Festus).[289]
Seniores, 40 cent. } 80
Juniores, 40 cent. }

_2nd Classis_—75,000 asses (Liv. and Dionys.).
Seniores, 10 cent. } 20
Juniores, 10 cent. }

_3rd Classis_—50,000 asses (Liv. and Dionys.).
Seniores, 10 cent. } 20
Juniores, 10 cent. }

_4th Classis_—25,000 asses.
Seniores, 10 cent. } 20
Juniores, 10 cent. }

_5th Classis_—11,000 asses (Liv.), 12,500 (Dionys. 12½ minae).
Seniores, 15 cent. } 30
Juniores, 15 cent. }
_Fabri_—2 cent. (voting with 1st class, Liv.; }
with 2nd class, Dionys.) }
_Accensi_, _cornicines_, _tibicines_, 3 cent. } 6 cent. (Liv.).
(Liv.), 2 cent. (Dionys.) (voting with 4th } 5 cent. (Dionys.).
class, Dionys.). }
_Capite censi_, 1 cent. }

Total, 193 centuries (Dionys.), 194 (Liv.).

THE CENSUS

As interpreted by Mommsen,[290] who holds As interpreted by Belot,[291]
that the figures are given in _asses who holds that the
sextantarii_ [i.e. _asses_ of two ounces figures are given in
weight—⅙ of the libral _as_ (the later _asses librales_ (later
_sestertius_)]. _sestertii_).

The older _as_ Later (_circa_
(¼ denarius) 269 B.C.)
equivalent to
⅒ denarius

_1st Classis_ 40,000 100,000 100,000
_2nd ” _ 30,000 75,000 75,000
_3rd ” _ 20,000 50,000 50,000
_4th ” _ 10,000 25,000 25,000
_5th ” _ 4,400 11,000 12,500

Another century was formed by the _accensi_ or _velati_. These were
men with no heavy armour, who might be enrolled as occasion required
(_adscripticii_), or who marched to battle as light-armed troops ready at
any moment to take the armour and places of the fallen legionaries.[292]
No property qualification was required for these three groups, the
reason being that their place in the army did not demand it. But to
these Livy and Dionysius add another unpropertied class, the century of
_proletarii_, which included the whole mass of the people not registered
in the _classes_.[293] If, however, we believe in the originally military
character of the organisation, there seems no place for this class which
is not already filled by the _accensi_ and _velati_. At a later period
the _accensi_ became a more definite body, acting as assistants to the
magistrates and forming a corporation with certain immunities,[294]
and at this period the _proletarii_ may have been recognised as the
class liable to taxation, which fell below the minimum census. But they
probably do not belong to the original Servian organisation.

The citizens included in the census list were collectively described as
_classici_, and were spoken of as _locupletes_ and _assidui_, the latter
word probably meaning people “settled on land,” “landholders,” as most of
those originally enrolled in the _classes_ were.[295] The others were the
children-begetting citizens (_proletarii cives_). The use of the census
for purposes of taxation gave other names to this class. In contrast to
the _assidui_, who were registered on their property, they were called
_capite censi_ as being registered on their _caput_ or mere headship of
a family; and further, when the incidence of taxation extended below
the minimum census, they were spoken of as _aerarii_, because their
participation in the burdens of the state was shown only by the payment
of taxes (_aes_). The word _aerarii_ seems always to have denoted those
outside the census list.[296]

The cavalry was an adaptation of the old patrician corps of
_equites_[297] to the new conditions. The six original centuries were
preserved and consisted as before of Patricians;[298] they still bore the
names of the ancient tribes, and were called respectively _Titienses_,
_Ramnes_, _Luceres_, _priores_ and _posteriores_.[299] They continued to
be known as the _sex centuriae_, or (after the centuries acquired voting
power) the _sex suffragia_.[300]

To these were added twelve new centuries (_centuriae equitum_),
composed, like the _classes_, of Patricians and Plebeians. But, unlike
the _classes_, they were not enrolled on a property qualification. This
is explained by the fact that they are not a list of men qualified for
service but actually in service, a standing corps selected by the king
and whose expenses were largely defrayed by the state. In later times,
each knight was on his entrance into the corps given the means wherewith
to furnish himself with a pair of horses[301] (_aes equestre_), and also
a regular sum of money for their support (_aes hordearium_), the latter
money being defrayed by unmarried women and orphans, who were possessed
of property but could not by the nature of the case be rated in the
census.[302]

Each of these centuries formed a troop of one hundred men under a
_centurio_,[303] and these eighteen centuries of Roman knights with
public horses (_equites Romani equo publico_) continued unaltered in
numbers and (with the exception that the _sex suffragia_ ceased to be
chosen from the Patricians) in character to the end of the Republic.
Although no definite census was required for the class, it was probably
chosen from the first from the richest and most distinguished citizens;
for its permanent existence implies leisure. The class was not divided
by age into _seniores_ and _juniores_, for an obvious military reason.
They were all _juniores_, and probably young men, whose release from the
centuries was granted as soon as age had impaired their efficiency for
service.

This centuriate organisation seems to have little or no connexion with
the four Servian tribes,[304] beyond the accidental one that the basis
of qualification was mainly land, and that all land which was private
property was registered in the tribes. Its primary meaning was the
assembly and registration of those liable for military service. It
acquired a secondary meaning when (at what period we do not know but
perhaps from its first organisation) it was used as a scheme for the
collection of taxes on the registered wealth of the citizens in the
_classes_. The act of registration (_census_) was a solemn religious
function conducted by the king. He numbered his fighting force, saw that
each warrior was in his due rank, excluded from these ranks men who were
stained with sin, and then concluded the examination with a ceremony of
purification (_lustrum_). It is only with reference to the collection of
taxes imposed at this levy that the tribe would be of importance. The
century was a military unit, dissolved as soon as the army was disbanded;
the tribe was permanent, hence the war-tax (_tributum_) was perhaps
collected from the first by the presidents of the tribes.[305]

A transference of political rights from the patrician body to this new
assembly was so far from being the motive of the change that it was
probably never contemplated. But such a transference was from the nature
of things inevitable. Apart from the general fact that a citizen army
must gain the preponderance in political power, there were certain public
acts which were inevitably performed from the first by the assembly of
the centuries, or were very soon found to be more rapidly, easily, and
appropriately performed by that assembly than by the _comitia_ of the
_curiae_.

Firstly, it may have been the custom for the oath of allegiance to the
king, first expressed in the _lex curiata_,[306] to have been renewed at
every taking of the census. This expression of allegiance, asked for by
the magistrate, was now a _lex centuriata_.[307]

Secondly, most of the popular utterances or _leges_ of early Rome must
have referred to military matters, and convenience, if not a sense of
consistency, must soon have dictated that they should be pronounced
by the army. The choice of officers rested with the king; but if the
appointment of the higher delegates required the ratification of the
people,[308] this must soon have been given by the centuries. The
regal jurisdiction which the people challenge by the _provocatio_ is
essentially military jurisdiction;[309] and consequently the exercise of
this jurisdiction, when the king allowed the appeal, must soon have been
felt to belong to the army. It was to this assembly that the announcement
of a proposal to declare war[310] would most appropriately be made; it
was above all by this assembly, which represented the taxpayers, that the
war-tax (_tributum_) would most appropriately be assessed.

We cannot trace the successive steps in the acquisition of power by the
centuries or its growth from an army into a _comitia_. They must have
been the chief political changes which filled the closing years of the
monarchy and the early days of the Republic; for even the abolition of
monarchy itself, revolutionary as it was, was less of an alteration
in the structure of the constitution than this transference of the
attributes of sovereignty from one assembly to another, from a single
to a mixed order. The _comitia curiata_ was not suddenly stripped of
its powers; but the organising genius of a single supreme magistrate
had prepared the way for a change, which was a prototype of the gradual
insensible revolutions through which Rome was to pass.

The change which closes the history of this period, although not so
radical, was far more sudden and violent. The monarchy itself was
overthrown. History has tried to invest this revolution with all the
legal grounds and legal forms which it could summon to its assistance.
Servius had had it in his mind to complete his democratic work by laying
down the full _imperium_;[311] and Tarquin the Proud, the last of the
great Etruscan line, had broken through the constitutional usages of
the monarchy[312] and had ruled without challenging the allegiance of
the people.[313] That there was some fearful abuse of the kingly power,
typified in the associations that gathered round the words _rex_ and
_regnum_ and in the oath which made any one who aspired to monarchy an
outlaw,[314] we may without hesitation allow; for Rome, as shown by the
power she continued to entrust to her magistrates, had not outgrown the
idea of royalty. But there was no constitutional mode of deposing a king.
The auspices had returned to the fathers in unhallowed fashion, and the
war waged by Tarquin and Etruria is a war for the maintenance of the
principle of divine right. But yet Rome held that the divinity of the
magistracy still remained; the auspices again left the fathers’ hands and
were conferred on two citizens chosen from the _patres_.[315]

CHAPTER II

THE GROWTH OF THE REPUBLICAN CONSTITUTION

The two new magistrates, who were appointed to the headship of the
state, were, like the king, armed with the _imperium_ and its united
powers of military leadership and jurisdiction. Hence they bore the old
titles of _praetores_ and _judices_,[316] while those designations which
denoted a single supremacy in the state, such as _dictator_ or _magister
populi_, were necessarily discarded. The new magistrates were to hold
office for a year and then to transmit their power to two successors.
But their right of nomination was not final. They were, indeed, free
to name as their successors whom they pleased, but this nomination had
to be ratified immediately by the people assembled in their centuries;
and perhaps they were already expected to submit to this _comitia_ the
names of all candidates who offered themselves for this post, although
they could certainly decline to receive such names,[317] and nomination,
or, as it was sometimes called, _creatio_, was an essential part of
the early consular elections. A new practice, that of direct election,
was thus introduced into the Roman constitution, but it was merely an
advance on the previous practice of ratifying a nomination.[318] A far
newer idea—one which distinguished the consulship from the monarchy,
and continued to differentiate it from the dictatorship subsequently
created—was that of _colleagueship_,[319] of two officials exercising
exactly the same sphere of competence, with the inevitable effect of
collision if agreement could not be secured. Perpetual collision was
averted by the simple rule that the dissent of one magistrate rendered
null and void the action of his colleague. But if such dissent was not
expressed (or not capable of expression through the absence of the
colleague) the command of a single magistrate had binding force on the
community. His regal competence was not diminished, but only potentially
checked, by the presence of a colleague. Colleagueship, considered as the
safeguard against abuse of the _imperium_, grew to be so firmly impressed
on popular imagination as the characteristic feature of the new office,
that the earlier titles derived from the monarchy gave place to that of
_consules_.[320]

But this limitation was not sufficient. The unrestricted military
jurisdiction of the magistrate was felt not to be in harmony with the
new _régime_. A law was passed by P. Valerius, the first of the consuls,
allowing an appeal to the people in their centuries against every
sentence of a magistrate which was pronounced against the life of a Roman
citizen. This _lex Valeria_ (509 B.C.) completed the popular jurisdiction
which had been growing up during the monarchy,[321] and from this time no
power but the people has the right to pronounce the final death sentence
within the walls;[322] outside this sphere the military jurisdiction of
the consul can be asserted without appeal—hence the distinction between
the _imperium_ at home (_domi_) and abroad (_militiae_); the limit
between the spheres being originally the _pomerium_, later the first
milestone from the city.[323] Without this limit the axes are borne
within the _fasces_, within it they are laid aside. Tradition adds that
it was this final recognition of popular sovereignty which led to the
custom of the consul lowering the _fasces_ before the people when he
addressed them.[324] It does not appear that this great change was forced
on the higher organs of the state by any popular agitation. It is no part
of a distinctively plebeian movement. Senate and People, Patricians and
Plebeians must have equally accepted as inevitable the doom of a power
which had been dwindling to a shadow during the monarchy.

The change from monarchy also witnessed the first attempt to weaken
the unity of the executive power. The consuls were given two general
assistants, the annually appointed _quaestores_. We have noticed the
tradition which assigns these officials to the regal period,[325] but
it is not wholly inconsistent with that which represents them as a part
of the new constitution of 509. From being temporary delegates they now
became permanent assistants of the consuls. Their sphere was as unlimited
as that of the consuls themselves; they were meant simply to obey his
behests. But two departments in which they represented the supreme
magistracy must have stood out prominently from the first. These were
criminal jurisdiction and finance.[326] The “city quaestors” (_quaestores
urbani_), as they were subsequently called to distinguish them from their
provincial colleagues, were known as _quaestores parricidii_[327] and
_quaestores aerarii_. In their first capacity they were delegates whom
the magistrate employed in criminal jurisdiction, probably occupying with
respect to procedure much the same place as the _duoviri_ in the trial
of Horatius.[328] The designation _parricidii_ may, however, show that
they were employed in such criminal cases as did not directly affect the
welfare of the state,[329] and by their side the _duoviri perduellionis_
reappear at intervals during the early Republic. Their financial
functions are generally taken to imply the existence of a state treasury
(_aerarium_). Tradition credits the first consul Valerius Publicola with
its institution, and makes the quaestors the guardians of its wealth
and probably of its archives.[330] The public chest of Rome must have
been a primitive matter enough at a time when coined money was not in
general use; but it is not improbable that finance did at this time
become a definite department. It could no longer be a purely domestic
matter; the lands of the kings had become crown lands of the state; the
series of wars into which Rome was plunged must have rendered a constant
collection of the war-tax necessary; none would more naturally have been
entrusted with the control and disbursement of revenue than the perpetual
delegates of the consuls; and the formalism of Roman character would
lead us to believe that the consuls had regular modes of acting through
their quaestors, and that these officials so far limited the power of
their masters. It is not improbable that the quaestors were originally
nominated by the consuls without the direct intervention of the people;
but this does not exclude some popular ratification of the choice.[331]
It was not until about the year 449 that their election was transferred
to the newly-constituted _comitia_ of the tribes.

And, as the consuls nominated their delegates, so the regal tradition was
continued which gave them the nomination of their council of state, the
Senate. In their choice of members they were legally as unfettered as
the king had been, and could summon new members or omit to summon those
already on the list.[332] So far as law went, the personnel of the Senate
might now be changed annually. But custom must have been stronger than
law. The body had gained a definiteness in its constitution, based on its
representative character and probably on actual life-membership, which
could not be easily destroyed, and the consul had a colleague at his side
to check any attempt at capricious removal or selection. The short tenure
of office must already have made a magistrate unwilling to exercise a
power which might be so easily turned against himself in the near future.
The discretionary power of the magistrate would have made the choice of
Plebeians possible, now that they were possessed of all the essential
rights of full citizenship;[333] but it does not appear that this choice
could have been often, if ever, exercised. The patrician clans had a
close hereditary connexion with the Senate; the _interregnum_, which was
the transmission of auspices by the _patres_, had long been one of its
privileges, and the prejudices of the patrician magistracy would hardly
have allowed it to dip into the inferior order for councillors. If there
be any truth in the story that, on the abolition of the monarchy, the
thinned ranks of the _patres_ were again raised to 300 by the inclusion
of persons specially enrolled (_adlecti_ or _conscripti_),[334] these
added members were probably, like their predecessors, patrician.
This large increase (placed by some at 164 members) gave rise to a
transitory distinction between the older members and the new members,
which—expressed in the formula of summons “qui patres, qui conscripti
(estis)”—was finally merged in the general appellation of “conscript
fathers.”[335] The expression may have originated with the abandonment
or modification of some original principle of selection; but, if
_conscripti_ be taken to apply wholly to Plebeians, some date later than
the commencement of the Republic must be accepted for the origin of the
term.[336]

The history, indeed, of the next hundred and fifty years shows that the
Senate is the stronghold of patrician prejudice. The power from which
the Plebeians try to shake themselves free, is the _patrum auctoritas_,
and the magistracy must soon have yielded to the demands of the new
burgesses, had it not been backed up by a patrician council. Yet during
the early Republic the Senate was a power distinctly secondary to the
magistrates. Its two undoubted prerogatives were the _interregnum_
and the _patrum auctoritas_. The first was exercised, perhaps, more
occasionally even than it had been under the monarchy, for it could
not be resorted to if one of the two consuls existed to nominate a
successor. The second power, on the other hand, must have become far
more formal than it had been in the time of the monarchy. Then it had
been little more than the claim of the council to be consulted on
important business;[337] now it was put forward as an integral part
of the procedure of the state; it was framed after the voting in the
assembly had taken place, and no law or election could be valid which
had not, after it had passed the people, received this formal consent of
the _patres_. We cannot trace the widening of the other powers of the
Senate; but we must assume that it took up a more independent position
in face of the consuls than it had done in that of the king. Perhaps the
establishment of a treasury and of financial quaestors, who may have
been selected from the council, led to its first connexion with finance.
The new importance that foreign affairs assumed, in the constant wars in
which Rome was engaged with the nations of Italy, must certainly have
strengthened its control of this department.

But, on the whole, the earliest period of the history of the Republic is
the epoch of the power of the magistracy. The traditions of the monarchy
were so little forgotten that eight years after the establishment of
the Republic, kingship in a modified form was again restored.[338]
In 501 B.C., during a war with the Latins, the consuls nominated an
individual with the royal title and powers. It was understood that this
_magister populi_, or, as he was afterwards called, _dictator_,[339]
was to remain in power only so long as the danger lasted; as the danger
was originally military, a single campaign of six months was held to be
the maximum duration of the office. During this time he was to exercise
the full regal _imperium_, within as well as without the city, and the
accompanying military jurisdiction without appeal. He was originally
understood to be a purely military official and the commander of the
infantry force; the command of the cavalry he entrusted to a magistrate
who, on the analogy of the magistracies of the monarchy, was a delegate
of his own, and bore the title “master of the horse” (_magister
equitum_).[340] The dictatorship was conceived of as a purely military
office, and, though it was occasionally used for other purposes in the
later constitution, never lost its primitive character. Although it
impeded for a time some of the most characteristic functions of the
consuls, it was not a suspension, but a part of, the constitution. A
small, struggling, and essentially military society, such as that of
early Rome, contemplated martial law as an occasional necessity; there
were times when the peril of the state was so great that it was felt
that the citizens’ ordinary guarantees of protection should sink into
abeyance if they were thought likely to interfere with the safety of the
commonwealth. The dictatorship had an internal as well as an external
side to its military character; it was even, perhaps, on its earliest
institution, meant to control disobedient citizens as well as to oppose
the enemy,[341] and was thus to some extent a party weapon in the hands
of the Patricians against the refractory Plebs. We shall find that
this summary military jurisdiction within the city was subsequently
abolished, without much loss to the utility of the institution. Its
true merit was the unity of administration which it created, the
advantages of which were made more apparent by the clashing powers of
the magistrates at a later stage of history. But the experience of the
evils of divided authority did not first point out the necessity of the
office. The dictatorship was an integral part of the original Republican
constitution; the law allowing it was forgotten—perhaps it was the first
_lex Valeria_ which secured the appeal against the ordinary magistrates;
but the right of the consul to declare martial law, as he did by
appointing a dictator, was never questioned as was the parallel right,
usurped by the Senate in later times, of arming the consul with military
jurisdiction. But, although the nomination of a dictator could not be
regarded as a violation of, or even as a break in, the constitution,
it was rightly held to be a powerful party weapon in the hands of the
patrician magistracy; and the attempts of the Plebs were directed,
however unsuccessfully, to limit this mighty power which over-rode all
privilege and law.

But the appointment of a dictator was supposed to be due to exceptional
circumstances. It is only when we look to the peaceful life of the state,
to the administration of law by the magistrate or the expression of
popular will in the _comitia_, that we can estimate the strength of the
position held by the patrician families.

The criminal law, which was doubtless during this period becoming more
and more secularised and divorced from the direct control of religion,
was the monopoly of the official class. A criminal case was an inquiry
undertaken solely on the initiative of the magistrate; no question
could come before the people until he had investigated it, and was
then only submitted in a _form prepared by him_. In the early popular
courts at Rome there was no power of amendment; the people could answer
only “Yes” or “No” to the question put before them. We are ignorant of
the extent of popular jurisdiction; it is possible that only sentences
affecting the _caput_ of a citizen were submitted to the assembly.[342]
But there was no real guarantee that even such questions could be
forced from the magistrate’s court. The _lex Valeria_ which admitted
the _provocatio_ imposed no penalty on the magistrate who violated its
provisions; the only hope lay in the veto of his colleague, and, if two
consuls were in agreement, they might ride roughshod over the law. The
consuls were ostensibly the only guardians of the criminal code; as it
is inconceivable that, in an age which made little use of writing, two
men selected on very varied grounds could have been regarded as fit
expounders of this form of _jus_, we must, even in the domain of criminal
law, go behind them and seek its true source in that formidable body,
the college of pontiffs. The learning and activity of this body is known
to us, however, chiefly in connexion with the divine or family or, as it
would have been called in later times, the civil law. The change from
monarchy to aristocracy introduced, in Rome as in Greece, an epoch of
religious tyranny. A king, who is the head of the religious as well as of
the secular life of the state, may hold the balance between the classes.
He is more likely to repress than to encourage his advisers; he may find
in popular rights a useful check to religious insolence. But remove the
king and substitute an aristocracy like the Patriciate whose members hold
supreme office in turn; let there be no distinction between clergy and
laity in this body, so that there can be no conflict between the secular
and sacred power, which may enable a third power to gain a footing; and
let this body have a monopoly of the civil law—and we get unequalled
possibilities of judicial tyranny. For two hundred years (509-304) the
knowledge of the forms of procedure, the _legis actiones_, which formed
the whole content of the civil law, was open to the patrician pontiffs
alone.[343] We are told that, even after the outlined codification and
publication of the law in the Twelve Tables, the formularies could only
be repeated correctly under the guidance of the college, which for this
purpose annually appointed one of its members to “preside over private
suits.” It is true that the theory of civil procedure was the same as
it had been in the time of the monarchy; the magistrate decided what
special rule of process was applicable, and then the case was settled
by an arbitrator chosen by the litigants.[344] But the magistrate must
often have been unskilled, one of the college must always have stood by
his side, and the pontiff so officiating was not merely an adviser to
the parties but a witness to the performance. The pontiffs, however,
were more than interpreters. They had, as the guardians of _fas_, their
own sphere of law, relics of which survived into the late Republic,
and within this sphere they were judges. They had a graduated scale of
expiations for sins (_piacula_); they were the police who protected the
sanctity of festal days (_feriae_), and inflicted spiritual penalties on
the magistrate himself who dared to exercise jurisdiction on a day which
they had declared holy; they issued and enforced commands which protected
sacred places (_loci sacri_) and burial-grounds.[345] Vows (_vota_), to
be effective, must be prescribed by them, and peculiarly efficacious
were those fixed forms of prayer (_certae precationes_) which they had
dictated word for word (_de scripto praeire_).

Against this phalanx of patrician power what forces could the Plebeians
boast?

A certain amount of voting power in the _comitia_ was all that they
possessed. But this voting power, except on certain established
points—the declaration of war and, when the law was observed, criminal
jurisdiction—was very ineffective, for the assembly was wholly dependent
for its summons and expression of opinion on the patrician consuls, and
liable to interruption from the pious scruples of patrician augurs; and
we have already seen how even the choice of magistrates could be hampered
by the formalities which still conditioned the election.[346] But, even
had these adverse circumstances been avoided, the voting power of the
Plebeians was small. The _comitia centuriata_ contained chiefly the
propertied—for the most part the landed—class; and even in this assembly
the two first classes and the knights, which would have consisted mainly
of Patricians, had a majority of votes (118 out of 193). The small
farmers and the artisans commanded but 74 or 75 votes; the great mass of
the Proletariate was either wholly unrepresented or could dispose of but
a single vote. It is important to inquire whether these classes excluded
from the centuries were represented elsewhere, or whether there was an
assembly possessing any real power in which Patricians and Plebeians were
alike represented.

It has been proved beyond a doubt that at some period during the first
three centuries of the Republic Plebeians came to be included in the
_comitia curiata_.[347] The change was the result of two circumstances;
firstly, the perfect equality of private rights between the members
of the two orders—adrogation and adoption, both of which followed the
possession of a _familia_, and in many cases _gentilitas_, being common
to both—which rendered it impossible to draw distinctions amongst the
_curiales_; and secondly, the reactionary influence of the centuriate
assembly, which emphasised the idea that Patricians and Plebeians
together made up the Populus.

Such a change must have been gradual; but, when it had occurred, the
admission of the Plebeians made this assembly thoroughly democratic in
form, for a vote in this _comitia_ depended neither on land or wealth,
but simply on personal membership of a _curia_, which was common to all
the citizens. But it is the very comparison of such a body with the
thoroughly timocratic organisation of the _comitia centuriata_ which
leads us to believe that, at the time when the Plebeians were admitted,
the _curiae_ had ceased to be a power. The condition reached by the
_comitia curiata_ in historical times will be described elsewhere. Its
most distinctive right—the _lex curiata_—had perhaps been a real power
in the hands of the Patricians, as long as they were its sole members,
although their preponderance in the _comitia centuriata_ would have made
a conflict between these two bodies unlikely; but there probably never
was a time when the masses of the Plebs gathered _curiatim_ upset the
verdict of the Patricians and wealthy Plebeians assembled _centuriatim_.

When we consider this situation, it is not surprising that the leading
features of the first period of development of the Roman constitution
(494-287 B.C.) were an attempt to limit the power of the magistrates,
and a struggle of the Plebs for equality with the Patriciate. The two
struggles do not run on parallel lines but are interwoven at every point,
since the magistracy represented the Patriciate. Nor do they represent
merely an effort to weaken or to obtain political privilege; in their
earlier stages the motive of the Plebs is not ambition, but defence.
Their first efforts have the negative object of the protection of rights,
not the positive design of an attempt to share in a political power which
was closed to their order.

Tradition represents the earliest social struggles of the Plebs as
centring round two questions—the possession of the public land, and the
law of debtor and creditor. They were no doubt closely connected, for
assignment of land meant relief of debt, but the agitation that gathered
round the public land was directed by individuals, was merely occasional,
and led to no permanent results; it is less a part of constitutional
than of political history, and its true nature is obscured by the fact
that we cannot say how far the annalists have transferred to this early
period the circumstances of the agrarian agitation of a later day. But
the early mode of assignment of the public land deserves consideration;
for, as one of the undoubted grievances of the Plebs, it may have been
one of the motives that led to the first great political reform. Land
conquered from the enemy was sometimes assigned to poorer citizens in
small allotments by the state (_ager assignatus_); in later times it was
sometimes sold by the state through its quaestors (_ager quaestorius_);
and in both these cases it became private property. But, in the early
Republic, the custom was growing up of leaving a great portion of
conquered land—especially such as was fit only for pasturage or had been
devastated in war—as state domain (_ager publicus_), and of allowing
it to be held in usufruct (_occupatio_) by squatters who paid to the
state for their privilege a proportion of the produce (_vectigal_), a
tithe or a fifth. Large portions of such _ager publicus_ had probably
been originally a part of the king’s domains, and had been held by his
clients, who would, of course, have been members of the lower class of
the Plebs. But under the new conditions of things it was all the property
of the state; and the theory was started, or confirmed, that in this
case Patricians alone could be its occupants,[348] a privilege that had
probably originated with the assumption that only the conquerors of the
land could share in the spoils of war.[349] This privilege—comprehensible
but legally absurd in that it involved the theory that clients of the
state must belong to a particular order—could no longer be upheld on the
same grounds, for Plebeians now marched to battle and could justly claim
a share in the prizes of war. But the maintenance of this principle, even
if justly carried out, could not have wholly solved the social problem.
The Proletariate, who had no share in winning the prize, would have still
been justly excluded; but it would at least have benefited the small
plebeian farmer, and perhaps it was he that had most need of benefit.

For the small independent landholder was in a hopeless plight—far more
hopeless than that of the client or emancipated slave who could claim
his lord’s protection. His condition was due to the law of debtor and
creditor—one, it seems, that was unknown to the old patrician community,
and had originated within the plebeian order, but which the Patriciate,
by adopting plebeian forms of law, could use with terrible force against
its inventors. The original procedure was one of the manifold forms of
_nexum_, or binding obligation created by the copper and the scales
(_per aes et libram_). A man who borrowed was allowed to sell his
perpetual services to his creditor conditionally—the condition being the
non-repayment of the debt within a given time.[350] When the prescribed
period had elapsed, the debtor and his whole _familia_ passed into
the power of his purchaser; he became his bondsman (_nexus_) until the
debt was paid by his labour. As in such circumstances the debt was
never likely to be liquidated, the small farmer became a mere dependent
member of the household of the rich landowner, leaning on his mercy and
subject to his caprice. No judicial process was necessary to create the
condition. The simple proof (perhaps given before a magistrate) of the
witnesses to the contract was all that was required. The enslavement of
the citizen was, it is true, forbidden by Roman public law,[351] and the
_nexus_ remained a burgess.[352] But a very thin line separated such a
condition from one of actual slavery.

It is probable that in early times plebeian law recognised no debt except
that created by the nexal contract. But as Roman commerce extended it
was impossible to observe this limitation; refinements of procedure
extended this penalty to debts incurred by the patrician form of mere
verbal promise (_stipulatio_, _sponsio_). The form of procedure in this
case is known to us from the Twelve Tables. If the debt was confessed
or proved before a court, an interval of thirty days was given to the
debtor wherein to pay; at the end of this period he was arrested by the
creditor (_manus injectio_) and brought before the consul, by whom, if
no champion (_vindex_) presented himself to contest the debt, he was
bound over (_addictus_) to the creditor. The latter could take him home
and put him in bonds, but must give him a pound of corn a day. Another
interval of sixty days followed, within which the prisoner was presented
to the magistrate on three court days (_nundinae_). On the last his
fate was sealed. He was no longer in the condition even of the _nexus_.
His creditor might put him to death or sell him as a slave beyond the
Tiber.[353] If there were more creditors than one,[354] they might
divide the debtor’s body into equal portions; and the Twelve Tables
gave immunity to the creditor who took more than his fair share of the
flesh. This death-penalty was doubtless a humane alternative to perpetual
imprisonment. Even if it did not submit the penalty, as a capital one,
to appeal (_provocatio_), the danger, which could be brought home to
relatives and friends by gradual mutilation, disfiguring but not fatal,
must have roused their efforts to effect a ransom. It was the application
of this law of debt, perhaps in even a harsher and more primitive form,
that called forth the first resistance from the Plebs. The perpetual
struggle for existence in which Rome was now engaged kept her armies
constantly in the field, and the small farmer on service, who had no
slaves, had to let his farm go to ruin in his absence and to mortgage
his body when he returned.[355] The most obvious remedy was a general
strike against the military levy; and this was attempted. Already in 495
a riot had been raised in Rome, which was only appeased by the promises
of a popular consul, Servilius, that the _nexi_ should be released for
service, and that no one should seize goods or pledges from a soldier
while he was in the field. The liberated citizens scattered the Volsci
and Aurunci; their reward was a more rigorous enforcement of the law
of debt by the other consul Appius. Servilius was appealed to, but
would not use his right of veto against his colleague. It was plain
that no one could rely on a consul’s _auxilium_ being used on behalf of
the Plebs.[356] A fierce stand against the conscription was now made
by the desperate Plebeians; the patrician answer was the appointment
of a dictator. Again the army took the field against the Volscians
and the Sabines; but, when victory was assured, the legions were not
disbanded, and a pretext was found for another campaign. On the march
from Rome the plebeian contingents suddenly turned aside to a hill in the
territory of Crustumerium, which, from the oath taken on its summit, was
thenceforth called the “Mount of Curses” (_sacer mons_).[357] A plan,
carefully thought out in the coteries and gatherings that had preceded
the campaign,[358] was now carried into effect. The Plebs had already
gathered in informal meetings (_concilia_) to discuss their grievances.
All that they lacked to become a corporation which might rival that
of the Populus, was to have at their head magistrates with great and
recognised powers. They were now met in battle array to carry out this
resolve; and it was not unnatural that the two plebeian magistrates whom
they chose to rival the power of the consuls should bear the military
appellation of tribunes.[359] It was made a condition of reconciliation
with the patrician state which they had quitted, that these officers
should have the power of suspending the decree of the consuls when
levelled against a member of the Plebs. But, since little confidence was
to be reposed in the government, the Plebs bound themselves by an oath,
similar to that taken on the expulsion of the king, to destroy any one
who offered injury or insult to their magistrates. The recognition of
these new magistrates, with the powers their appointment involved, was
effected by a _lex centuriata_ perhaps passed in the very year of the
secession (494 B.C.). The office of the _tribuni plebis_ or _plebei_
was modelled as closely as possible on that of the consuls. They were
originally two in number, and had, with reference to each other, the
mutual power of veto which the collegiate principle implied. They were
from the first magistrates of the Plebs, hence none but Plebeians were
eligible,[360] and they must from the first have been elected by an
assembly of the Plebs. This assembly, however, did not perpetuate its
original military character, and the unit of voting naturally selected
for the city-gatherings at which the tribunes were appointed was the
_curia_, to which Plebeians had for some time belonged. This assembly of
the Plebs was known as the _concilium plebis curiatim_.[361]

With respect to power the tribunate has, from its origin, a double
character. It possesses a negative control of the whole people (generally
in the person of its magistrate) exercised in defence of the Plebs, and
a positive authority within the plebeian community. The first power
asserts itself in the right of veto, the second is shown in the power of
eliciting resolutions (_scita plebei_ or _plebiscita_) from the plebeian
_concilium_. The first power, that of offering assistance (_auxilium_)
to any Plebeian[362] who feels himself aggrieved by the decree of the
magistrate, and suspending this decree by the exercise of the “veto,” was
the _raison d’être_ of the tribunate. The tribune was created to meet
the consular imperium (_contra consulare imperium_),[363] and the fact
that he could only exercise this power in person imposed on him certain
obligations. The tribune might not stay a night without the walls, and
the doors of his house were open day and night.[364] It was doubtless
through the insufficiency of these presidents of the Plebs to cope with
the demands for their assistance that their number was raised first to
four (471 B.C.), and before the year 449 B.C. to ten[365]—changes which
were ratified by the centuries and the Senate.

But a negative control over the magistrates of the state must be wholly
ineffective unless there be some means of enforcing this control. Had
the tribunes possessed no coercive power, the consul, in carrying out
the law of debt or in summoning Plebeians for the levy, would simply
have set their veto aside. We should have expected that such breaches of
the law would have been guarded against by judicial prosecution before
the courts of the community. But this was not consistent with the Roman
idea of magistracy. Each magistrate had, to a greater or less degree, the
power of enforcing his own decrees (_coercitio_), limited only by the
right of appeal or the veto of his colleague; and this power could not
be denied to the tribune. A logical consequence of his right of veto was
that he could exercise this _coercitio_ against the consuls themselves;
the sanctity of his person (guaranteed by the Plebs and accepted by
the Populus) rendered resistance hopeless; and all the weapons of the
_coercitio_—arrest, imprisonment, fines, stripes, and death—were at the
disposal of the champion of the Plebs.

_Coercitio_ implies summary jurisdiction; and the infliction of fines
beyond a certain limit, scourging, or death subjected a magistrate to
the _provocatio_, and therefore made him a partner in a trial before
a popular assembly. Hence the judicial power of the tribune, also a
necessary consequence of his power of veto. Undoubtedly when the office
was created this consequence was not foreseen. When it was found to be
a necessary accompaniment of the tribunician power, tradition tells us
that it was questioned by the Patricians. The historically worthless but
typical trial of C. Marcius Coriolanus in 491 B.C. elicited a protest
that the _jus_ of the tribunes extended only to Plebeians.[366] The
protest was idle, for the _jus auxilii_ could not exist without the
_jus poenae_ against its violators. The violation of plebeian rights
which was thus met by tribunician coercion and jurisdiction, was always
an infringement of the safety or dignity of the tribune himself. Even
the infliction of wrong on an individual through the violation of the
tribune’s decree was a wrong done to the Plebs through him; it was not
held to affect the rest of the community; hence the not unnatural belief
of our annalists that, when the tribune pronounced a sentence against
which there was an appeal, he brought the matter before the assembly of
the Plebs.

This right of reference implies the power known as the _jus agendi cum
plebe_. It was a power that could not have been contemplated on the
establishment of the tribunate, but it proved a necessary consequence of
the _auxilium_. Its acquirement meant a new infringement of the rights of
patrician magistrates; for the summoning of the Plebs meant the calling
away of a large portion of the Populus from the consuls. Two summonses of
two assemblies containing the same individuals by different magistrates
meant an inevitable conflict of authority, and the tribunician right
of transacting business with the Plebs could not be secured but by a
definite guarantee against consular interference. This guarantee was
given, tradition says, by a resolution of the Plebs itself, passed in
492 B.C., two years after the institution of the tribunate, under the
presidency of the tribune Sp. Icilius.[367] The date is probably too
early, and the resolution must have been subsequently ratified by a _lex_
of the centuries. It enacted that when the tribune addressed the Plebs no
one should speak against or interrupt him; that the tribune should fine
the offender and demand securities. If securities were not forthcoming,
the offender should be punished with death and his property confiscated
to the gods. If the fine were disputed the judgment should rest with
the people. Whether by “people” here was meant Populus or Plebs, it was
doubtless on this law that the plebeian assembly based its jurisdiction
in the case of injury or insult being offered to its magistrate.

But the right of acting with the Plebs, which was thus guaranteed to the
tribune, had another and more positive aspect. It might be used to elicit
formal resolutions passed by the whole plebeian _concilium_ in their
own interests, and to give this body the character of a guild which,
within certain limits, could pass rules binding on all its members.
So long as the resolutions of this body were purely self-regarding,
did not infringe on the public law, and were voluntarily accepted by
all the members, they did not need formal ratification by any higher
authority. But sometimes resolutions were passed which the Plebs was
incapable of carrying into effect; in this case they were mere petitions
to the only recognised legislative power, the consuls presiding over
the _comitia centuriata_. We have an instance of this procedure, dated
within forty years of the establishment of the tribunate, which shows
how far-reaching the demands of this _concilium_ might be. In 456 B.C.
the tribune Icilius elicited from this assembly a resolution to the
effect that the Aventine, until that time state property,[368] should
be assigned to the Plebs. With this petition he approached the consuls
and the Senate, and requested them to gain the consent of the _comitia
centuriata_ in due form of law.[369] The same procedure must be imagined
for any _plebiscita_, which refer to matters affecting the whole
community, down to the year 287, when, as we shall see, these resolutions
of the Plebs were first raised to a level with the laws. In framing its
resolutions the Plebs was as dependent on the tribune as the _comitia_
was on the consuls; the _rogatio_ of the magistrate could only be
answered by the “Yes” or “No” of the burgesses. Its elective proceedings
were similar to those of the whole people. The tribune, before he
quitted office, nominated successors and submitted their names to the
Plebs. The differences were that the voting was by _curiae_ and not by
_centuries_, that the _patrum auctoritas_ had here no place, and that
the formal taking of the auspices was not necessary to the validity of
the proceedings, although doubtless the tribunes employed their right of
taking private auspices[370] to give a sanctity to the act of the Plebs.

In one further and less important respect was this community of the Plebs
modelled on the larger community of the Populus. In the year when the
tribunate was established, the magistrates of the Plebs were given two
assistants,[371] who bore the same relation to them as the two quaestors
did to the consuls. Their functions were as undefined as those of the
quaestors; but, when the powers of the tribunate were slightly better
established, these delegates seem, like their prototypes, to have been
concerned mainly with criminal jurisdiction and finance. They also kept
the archives of the Plebs in the temple of Ceres, and it was thought that
it was from this that their name _aediles_ (possibly not their original
title) was derived.[372] They served the tribunes in the exercise of
their _coercitio_, seizing the offender or inflicting the death penalty.
We find them performing this function in the trial of Coriolanus.[373]
After the tribunes had gained criminal jurisdiction, they assisted them
as delegates.[374] Their original financial functions are somewhat
indefinable; but such functions are suggested by their office at the
temple of Ceres and the archives which they guarded there—functions which
find exact parallels in those of the quaestors at the temple of Saturn.
It may have been one of their duties to exercise some supervision over
the forced labour (_operae_) of the Plebeians, and this may have led to
an early connexion with the repair of roads and buildings. Their police
functions, their supervision of the market, above all their maintenance
of the state religion amongst the masses, can hardly be referred to this
early period.[375]

The aediles may originally have been nominated by their superiors; but
election by the _concilium_ of the Plebs, under the presidency of a
tribune, is the only form of their appointment which is known to us. The
office was legalised with the tribunate, and its holder possessed the
same personal sanctity as the tribune, conferred first by oath and then
by law.[376]

For the power of these plebeian magistrates rests wholly on a
superstitious belief, consciously applied to fill up a gap in the public
law. It might have been thought that magistrates elected by a large body
of the citizens, whose powers were recognised by public law, would have
been sufficiently protected by their position. But the Romans were slaves
to legal formulae. The Plebs was not the community, nor even at first
a legalised corporation within the city; the tribunes were, therefore,
not magistrates of the state, and wore none of the insignia of office;
they had not the _imperium_ and the _auspicia_, and therefore could
not be protected by the law of treason (_perduellio_), which avenged
wrongs done to the state in the person of its magistrate. A substitute
must be found in a religious sanction. Perhaps Rome is the only state
that has definitely invested the demagogue or “champion of the people”
with a halo of sanctity. This was first given him by the people whom he
championed. The Plebs on the Mons Sacer had sworn an oath to destroy any
one who destroyed their tribune—an oath which they perpetuated to their
descendants. The sanctity of the tribunes, therefore, had originally
no valid religious ground, for the Populus had not pronounced such an
offender to be _sacer_, nor had the oath been taken by a magistrate
on behalf of the whole community. It was simply a proclamation by a
section of the people of the infringement of rights which they held would
justify a revolution; and the declaration was accepted by the Roman state
when it recognised the tribunate. But the inviolability of plebeian
magistrates did not gain legal recognition until the reinstitution of
the office in 449 B.C. Then the violator of the majesty of the tribune
was made a _sacer homo_[377] in its later sense of “an outlaw” for
the whole community, and the aediles and the plebeian _decemviri_ were
protected by the same ban. Yet the Roman jurists held that this law
did not give _sacrosanctitas_, at least to the tribune; that was given
by the “ancient oath” of the Plebs; the law only announced a penalty
which might be carried out by any member of the community. This view
was of importance, because it recognised the capital jurisdiction of
the Plebs in all cases where their magistrates had been injured; and,
although subsequent practice was unfavourable to this jurisdiction, its
legality cannot be questioned. The tribune was himself the defender of
his own personal inviolability and that of his fellow-officers; for it
was he who summarily inflicted the punishment or proposed the penalty to
the _concilium_. The crime of infringing plebeian liberties could not
originally have borne a definite name; in later times it was brought
under the vague conception of _majestas_, “the infringement of the
greatness of the state.” The penalty might be a capital one, while the
acts construed as infringement might be very slight indeed. Physical
compulsion, blows, an attempt at murder were all obvious cases; but
forcible resistance to a tribune’s will[378] came under this head, and,
after the law which guaranteed the right of meeting to the Plebs, any
act, whether of magistrates or individuals, which interrupted a meeting
of the Plebs summoned by a tribune.[379]

In fact, during the earliest years of the struggles of the Plebs, the
rights of the corporation are represented only by the powers of the
tribune, through whom alone it claimed official recognition; and thus
from 494 to the epoch of the decemviral legislation (451) the tribunate
is engaged in efforts to gain a better representation of the plebeian
community, and to secure an equality in the administration of the
law, which should render the clumsy negative system of the constant
interposition of their _auxilium_ less necessary.

The first attempt seems to have been to some extent secured by the
_plebiscitum_ passed by Publilius Volero in 471, which enacted that the
_concilium_ of the Plebs, instead of meeting as before by _curiae_,
should now meet by tribes (_tributim_).[380] As this was a purely
self-regarding ordinance, it probably did not require the consent of
Senate and people,[381] and we are told that it was looked on with
disfavour by the Patricians. The grounds of their objections are not
easily fathomed, nor is the gain to the Plebs brought about by the
change particularly clear.[382] The number of the tribes at this time is
unknown, but it was probably twenty-one. This growth had been brought
about by an abandonment of the Servian principle. After the Roman
territory, lost in great part during the earliest years of the Republic,
had been regained, a wholly new subdivision of the _ager Romanus_ had
been adopted. The four Servian tribes were confined to the ring-wall
of the city, and the land without the walls was now separated into
_tribus_, which were called the country (_rusticae_) as opposed to the
city tribes (_tribus urbanae_). Sixteen of these country tribes bear the
names of patrician _gentes_;[383] they must have been named from the
clan settlements and were obviously the first created. It is affirmed by
Dionysius[384] that, at the time of the trial of Coriolanus (491 B.C.),
the number of the tribes was twenty-one; but it has been conjectured with
some plausibility that the twenty-first was added in this very year 471,
when the tribe was first used for voting purposes, in order to create
an inequality of votes, and that it bears its _local_ name (Clustumina
or Crustumina) in memory of the secession of the Plebs to the Sacred
Mount.[385] The Plebs may have petitioned the consuls to add one more to
the divisions of the state; for it was they alone who could effect the
change, the creation of a tribe being an administrative act which none
but the magistrates of the community could carry out.

These tribes were, like the earlier ones, local, and although there is
no evidence for the view that landholders alone were included in them,
yet the seventeen country tribes would naturally consist for the most
part of peasant proprietors, and would, therefore, be a better organ
for plebeian sentiment than the _curiae_, throughout which the landless
plebeian clients might still be the representatives of their patrician
lords.

This change soon produced an unexpected consequence. At some period
between the passing of the Publilian law and the enactment of the Twelve
Tables, the new plebeian practice was adopted as a basis for gatherings
of the whole people. The Populus began to meet by tribes, and to form a
_comitia tributa_. The Twelve Tables prove that this body early gained
judicial competence;[386] but the history of the great change which
placed a democratic assembly of the Populus by the side of the timocratic
_comitia centuriata_ is wholly unknown to us. It is probable that the
original power of this new parliament was not extensive, and it may have
been confined originally to the hearing of minor judicial appeals from
the magistrates. About twenty years later it was found convenient to
entrust the election of quaestors to the new assembly. Its attractiveness
lay in the ease and rapidity with which the people might be summoned to
meet by tribes within the walls, as compared with the stately formalities
of the gathering of the army in the Campus.

The second great movement of the tribunate was an attempt to secure an
equal administration of the law.

In the year 462 the tribune C. Terentilius Arsa made a proposal to the
_concilium_ of the Plebs that a commission of five should be appointed to
clear up the forms of legal procedure, and by this means to fix limits
to the judicial caprice of the consuls;[387] and in the next year a
resolution of the whole college of tribunes was framed to this effect.
It was obviously a measure which demanded the sanction of the Populus,
and this it was for many years impossible to obtain. Even apart from the
fact that the tribunes apparently intended their commission to consist
wholly of Plebeians, it was felt to be a proposal that was revolutionary
in the extreme; for it was nothing less than the demand for a code, for
a written system of rules which should replace the elastic principles of
justice, which were one of the mainstays of patrician power, and which
would vulgarise the awful sanctity of the consulate and the pontifical
college. It must also have been felt that codification must mean a
compromise—some recognition of plebeian claims which would weaken the
position of the ruling caste. Hence a stout opposition on the part
of magistrates and Senate, and the bill, if it passed the _concilium
plebis_ at all,[388] was not allowed to go a step further. But the Plebs
persisted in its efforts, and its answer to patrician opposition was to
return year after year the same tribunes, formulating the same demands.
In 458 B.C. the college approached the consuls on the subject, and asked
them to formulate their objections to the bill;[389] for the moment there
was the hope of an agreement, but at the end of the year the consent
required was again refused. Three years more of agitation followed,
and then it was felt that the original proposal must be abandoned. The
tribunes expressed their willingness for the initiative to be taken by
the patrician magistrates, and for a joint commission to be appointed.
Meanwhile the years of discussion had caused the original proposal to
assume larger dimensions. Reform which should bear a wholly non-party
character was suggested in place of a mere codification. Information of
the Greek Codes was to be gathered by a commission of three—a suggestion
which was valuable in many ways; it was useful for purposes of delay, it
gave an appearance of learning and thoroughness to the work, and perhaps
some such basis was felt to be absolutely necessary for framing rules on
points which the very indefinite Roman procedure had never considered.
The return of the envoys in 452, after an absence of three years, renewed
the demands of the tribunes for the instant prosecution of the work. A
controversy between the orders as to the constitution of the commission
ended in a compromise. Plebeians might be admitted; but, as a matter of
fact, the patrician influence was so strong that the first board elected
by the _comitia centuriata_ appears to have consisted wholly of members
of that order.[390] The appointment of the commission was a complete
abrogation of the constitution. The consulship was abolished; the Plebs
gave up their tribunate, some have thought in perpetuity, misled by the
hope that the publication of the law would render such a check on the
consular power unnecessary, and as a part of the compromise with the
Patricians, and stipulated only that certain privileges which they had
already gained by law should not be abrogated.[391] The provisional
government appointed for the year 451 took the form of a board of ten
men with consular power but not subject to the law of appeal.[392] The
work was done within the year, and the code posted up on ten tablets
(_tabulae_) and published to the masses. The people were summoned and
told that the commission had created equal rights for all,[393] and the
whole body of law was passed as a _lex_ by the _comitia centuriata_.
But at the end of the year it was declared that the work was not quite
complete. Again the constitution was suspended, and a new board of ten
appointed, this time inclusive of Plebeians.[394] Two new sections were
added, thus bringing up the number of the _tabulae_ to twelve; these also
were confirmed by the centuries, and after the government of the “wicked
ten” had abused its power and fallen, were published with the rest of the
code by the consuls of 448.[395]

Although the law of the Twelve Tables (_lex duodecim tabularum_) was
for the most part a codification of existing rules, it marks a distinct
advance in the recognition of plebeian rights, and thus was of the utmost
political importance in framing rules for the whole state the question
before the commissioners was whether the customary law embodied in the
code should be that which prevailed in the patrician, or that which held
good in the plebeian community. In almost every important particular
plebeian law was preferred. The reason was not any regard for plebeian
rights (the decemvirs re-enacted the rule forbidding marriage between
the orders), but the simplicity and the capacity for universality of
this law. The code is not a hap-hazard collection, but a scientific
compilation; the aim was a “levelling” of the law, an arbitrament between
classes, such as had often formed the task of the Greek legislator; and
in effecting this object the commissioners showed more wisdom than any
Greek legislator of whom we hear. The idea of legislating for a class, or
the still more foolish idea of perfect logical adjustment, are strikingly
absent. The code is thoroughly Roman in its caution and good sense, its
respect for the past, which it disregards only when old custom violates
the rules of common sense, and its judicious contempt for symmetry. Such
a code as this might be changed in detail, but was never likely to be
repealed. It remained the “fountain of all public and private law,” and
justly, for, according to Tacitus, it was the “consummation of equal
right.”[396] Its rhythmical sentences were learnt by heart by school-boys
in Cicero’s time.[397] Elaborate commentaries were written on it by the
republican lawyer Aelius, and the imperial jurist Gaius, and by Labeo,
who stands at the meeting-point between the two _régimes_; and in the
sixth century A.D. Justinian, in the old age of the world, still respects
many of the provisions which date from the infancy of Roman legislation.

The Twelve Tables contained the “whole body of Roman law” (_corpus omnis
Romani juris_),[398] not in the sense that they were a complete and
detailed system, but in the sense that they pronounced on all important
or disputed points in all departments of law, private, criminal, and
public.

The ordinances of private law embraced regulations as to marriage and
family relations, testamentary disposition, inheritance, debt, and usury.
The marriage recognised was the consensual contract of the Plebeians
strengthened by _usus_. Emancipation was recognised as a consequence of
the threefold sale of a son, and a form of adoption, probably already
in use in the plebeian community, was thus made universal.[399] The law
also facilitated the emancipation of slaves who had purchased their
freedom and so helped to create the wealthy freedman class.[400] Perfect
freedom of testamentary disposition, in accordance with the plebeian
form of testament _per aes et libram_, was recognised; while in intestate
inheritance and in guardianship the rights of the _agnati_, common to the
Plebeians, were recognised as prior to those of the _gentiles_; sometimes
peculiar to the Patricians.[401] The freedom of contract, guaranteed
by the Tables, implied the old harsh law of debt; but the penalty was
defined, the procedure carefully described, and every loophole of escape
offered to the debtor.[402] At the same time usury was severely punished;
ten per cent (_unciarium fenus_) was recognised as the legal rate of
interest, and the usurer who exceeded it was punished more severely than
the thief and compelled to restore fourfold.[403] The rules of procedure
for all civil actions were laid down, such as the summons of parties and
witnesses and the length of the trial. But the law did not reveal the
forms of action; these were still hidden with the pontiffs.

In criminal matters the Twelve Tables recognise the old principle of
self-help; a limb was to be given for a limb; but for minor wrongs
compensation was allowed, and twenty-five asses were full reparation
for a common assault. But there are survivals of the old religious
penalties; the man who destroyed standing corn was hanged as an offering
to Ceres,[404] and the involuntary homicide could expiate his guilt with
the _piaculum_ of a ram. The law was heavy on the abuse of freedom of
speech; for death was the penalty for incantations or libels against
a citizen.[405] The same penalty was inflicted on the _judex_ who had
accepted bribes;[406] while for _perduellio_ in the form of “rousing
an enemy against the state or handing over a citizen to the enemy” the
death penalty was also enjoined.[407] Reference must have been made to
criminal procedure since the _quaestores parricidii_ were mentioned in
the law.[408]

The principle of the constitution which guaranteed a fair trial to
the citizen was upheld; for we have the statement of Cicero that the
Twelve Tables granted the _provocatio_ “from every kind of court and
punishment”[409] In two other particulars they limited the jurisdiction
of the people. It was maintained that no law or criminal sentence (for
this took the form of a _lex_) should be directed against a private
individual (_privilegia ne inroganto_), and it was laid down that
no capital sentence could be passed except “by the greatest of the
_comitia_” (_nisi per maximum comitiatum_),[410] i.e. by the assembly
of the centuries. Later interpretation held that this clause struck
a blow at the capital jurisdiction of the _concilium plebis_; it is,
however, doubtful how far this extraordinary jurisdiction, resting on
a religious sanction, could be affected by a law which, as we shall
see, never treated the Plebs as a political corporation at all. Another
important constitutional provision of this code was one which granted the
right of free association. The Twelve Tables, while severely prohibiting
secret gatherings (_coetus nocturni_)[411] which had presumably
treasonable designs, permitted the free formation of guilds (_collegia_
or _sodalicia_). Such colleges were to require no special charter; the
rules which they made for their own guidance should be valid, provided
they were no infringement of the public law.[412] Lastly, the code
guaranteed the sovereignty of the popular assembly by declaring that its
last enactment should be final, without setting limits to the sphere of
its legislative activity.[413] This was a token of the Roman conviction
that there should be no finality in law. The Twelve Tables themselves
were not guarded against repeal. It was a forecast of further development
following the course of the old, of a constitution whose stages were
marked by elasticity and growth, not by rigidity and revolution.

The new law does not appear to have made mention of the Plebs and its
tribunes, for they were hardly a part of the constitution; and yet, in
the crisis that followed the fall of the decemvirate, the question that
gathered round these ignored powers was great enough to obscure every
other issue.

The Plebs might have been satisfied with the compromise, had it not been
for the unfortunate attempt at despotism made by the second board of
decemvirs. It is impossible to believe that this usurpation was really
countenanced by the Patriciate, and that they aimed at staving off
indefinitely the inevitable assaults of the Plebeians on the magistracy
by indefinitely perpetuating this rule of ten annual commissioners
without appeal; but they tolerated their rule, and backed up their
excuses for not retiring, until two acts of tyranny raised mutinies in
both the Roman camps. The plebeian soldiers cast off their allegiance
to the ruling board, and first, under military leaders of their own
choosing, occupied the Aventine; they then, accompanied by the majority
of the unarmed Plebeians of Rome, wended their way a second time to the
Mons Sacer (449 B.C.). The Senate in alarm sent two of its members,
Valerius and Horatius, who were of good repute among the Plebs, to
ask their wishes. The answer was: amnesty for the breach of military
discipline involved in the secession; the restoration of the _provocatio_
(which meant the dissolution of the decemvirate) and of the tribunician
power.[414] The demands had not increased since the first secession;
protection was all that the Plebeians yet demanded.

Everything was granted; the _decemviri_ were forced by the Senate to
an unwilling abdication; the tribunate was re-established, and, as
no plebeian magistrate existed, the unusual step was taken of having
the election conducted by the _pontifex maximus_.[415] A resolution
was then elicited from the Plebs by the tribune Duilius that consuls
should be created subject to the right of appeal. It was accepted by
the Senate,[416] who appointed an _interrex_. The _comitia_ of the
centuries returned Valerius and Horatius. Under the guidance of the
consuls the assembly proceeded to pass a series of laws (the _leges
Valeriae Horatiae_) which more than satisfied the demands of the Plebs.
One guaranteed the perpetuity of the _provocatio_ by the enactment that
“no one should in future create a magistrate from whom there was no
appeal; any one who created such a magistrate should be protected by
no law sacred or profane and might be slain with impunity.”[417] The
law was evidently called out by the unlimited power of the decemvirate
which had just been abolished; it did more than merely affirm the first
_lex Valeria_,[418] for it rendered the creation of an absolute judicial
power by the _rogatio_ of a magistrate a capital offence, even when this
proposal had been accepted by the people. But the scope of the appeal
was not extended; the “creation” of a magistrate referred to election
sanctioned by the people, and did not, therefore, affect the right of
the consul to nominate a dictator from whom there was no appeal; nor did
it extend the limits of the appeal beyond the original boundaries—the
_pomerium_ or, at the utmost, the first milestone from the city.[419]

Two other laws aimed at giving a legal existence to the plebeian
community. One gave a legal sanction to the _sacrosanctitas_ of the
plebeian magistrates by enacting that any one who injured them should
be _sacer_ to the whole community.[420] Another gave a more binding
character to the formal resolutions passed at the _concilium_ of the
Plebs. Its import is obscure, but there can be no doubt that it marks
an important stage in the validity of _plebiscita_. We are told that
it was meant to settle the controverted question whether resolutions
of the Plebs were binding on Patricians;[421] and that it did this by
enacting that “whatsoever the Plebs commanded by its tribes should bind
the people (_ut, quod tributim plebes jussisset, populum teneret_).” It
is possible that our authority has misunderstood the purport of this law,
but hardly likely that the misconception is so great as that imagined
by some modern theorists. It is certain that there is no implication
that _plebiscita_ had from this time the force of _leges_; it was agreed
that the resolutions of the Plebs did not gain the force of Acts of
Parliament until more than 160 years later. Recent attempts to interpret
the Valerio-Horatian law have been based on the supposition that it was
concerned with some mode in which a _plebiscitum_ might become a _lex_,
that it facilitated the transformation of a resolution of the Plebs
into a binding law of the Populus, through an intermediary channel,
consuls or Senate.[422] The wording of the law (hardly so remote from
its original as has been supposed) scarcely gives a warrant for this
view; it speaks only of giving a “binding character” to such resolutions.
It must be remembered that at this time the plebeian community was not
really bound by the resolutions of its own _concilium_, for this was
not a legally recognised corporation. The Valerio-Horatian law may
have made it such, a corporate body passing resolutions binding on all
its members. But a law which is valid for a corporation is valid for
those outside the corporation. The ordinances, it is true, which have
this binding force must refer immediately only to the affairs of the
community which dictates them. This was the case with _plebiscita_ now.
All self-regarding ordinances of the Plebs bound the Plebeians in the
first degree, the Patricians, if it infringed existing rights, in the
second degree. All _plebiscita_ of a wider scope must still have been
mere petitions to the consuls.[423] We can hardly conceive that the law
discriminated accurately between what was possible to the Plebs and what
was not; it was sufficient to recognise the already established maxim
that corporations could frame their own rules _dum ne quid ex publica
lege corrumpant_.[424] From this time onwards, down to 287, whenever we
find _plebiscita_ affecting matters of national interest or creating
changes in the constitution,[425] we must assume that they were brought
by the magistrates before the people to be ratified as laws; although
doubtless the undefined limits of plebeian prerogative were often
exceeded.

The first great utterance of the Plebs, which followed the
Valerio-Horatian law, was one of this character, for it attached a
criminal (and therefore a public) penalty to a derogation of duty to the
Plebeians. On the proposal of M. Duilius, the tribune, the Plebs resolved
that “any one who left the Plebs without tribunes or created a (plebeian)
magistrate without appeal should be scourged and executed.”[426] It
was a mode by which the Plebs tried to guard itself from any possible
surrender of its liberties such as that which had created the decemvirate.

The Plebs, thus secured in its original privileges, recognised as a
corporate body, and feeling, as a result of the Twelve Tables, that its
law was in the main the law of the state, began to aim at something
more than protection. From this time begins the continuous struggle
for the complete equalisation of the two orders. It was opened by the
tribune Canuleius in the year 445. He rightly held that social must
precede political equality, and proposed in the assembly of the Plebs
that marriage should be permitted between Patricians and Plebeians.[427]
The only reasonable objection which the consuls, representing the
feeling of the Patriciate, could bring forward against the measure, was
the time-worn pretext that was said to have influenced the decemvirs
in inserting the prohibition in their code, viz. that the Plebeians
had no auspices, and that the disappearance of a pure race would mean
a break in the chain which connected the state with heaven.[428] But
the pretext expressed the real fears of the Patriciate. Intermarriage
between the orders would break down the religious barrier which guarded
the consulship; this was the prize for which the Plebs was striving. In
fact a suggestion, emanating from the tribunes at the beginning of the
year, had already assumed the form of a _rogatio_ to the effect that
“the people should have power to choose consuls at its pleasure either
from the Plebs or from the _patres_.”[429] Over the marriage question
the usual contest ensued, and with the usual result. The consuls led
the opposition as long as they could; at last the Senate was beaten,
the magistrates were forced to bring the question before the people,
and marriage between the orders was legalised.[430] The tribunes
followed up their victory by pressing their measure for the opening
of the consulship. It was felt that open resistance would be useless;
and a device was resorted to which illustrates the Roman genius for
adaptability, for dignified political chicanery, and for satisfying at
the same time the demands of reason and prejudice. The immediate evil
felt was the irruption of the Plebeians into supreme office; but there
must have been for some time a growing sense that the executive machinery
of the state was by no means equal to the demands made on it. The two
consuls were at once military leaders, the sole administrators of the
higher civil and criminal jurisdiction, and the sole officials entrusted
with the duty of registering and distributing burdens over the citizens.
Such a combination of functions could not continue to exist with the
widening of Rome’s political horizon, and the first attempt was now made
at a division of the military, judicial, and registrative duties of the
supreme magistrate.

To effect this object, and at the same time to make a concession to
the Plebs, it was decided to replace the consulship by the office of
military tribune with consular power (_tribunus militum consulari
potestate_).[431] The change, permission for which may have been granted
by a special _lex_,[432] consisted in raising some of the ordinary
legionary delegates of the consul to a level with the commanding
officer and suppressing the latter.[433] These extraordinary officials
were elected at the _comitia centuriata_ under the presidency of one
of the chief magistrates, whether consul or consular tribune, for the
time being. The normal number, six, was no doubt suggested by the six
tribunes of the old _legio_ or army. But this full number was not always
appointed. The question how many military tribunes should be created
for a given year depended on the exigencies of the state. Sometimes
three were elected, sometimes four, at other times six, a number which
seems never to have been exceeded.[434] It rested formally with the
magistrate who guided the elections, practically perhaps with the Senate,
to determine how many of these officers should be appointed for any
given year. As military posts below the supreme command had long been
opened to the Plebs, it goes without saying that Plebeians were eligible
to the consular tribunate; their admission, in fact, had been one of
the motives of the change.[435] Yet the patrician element was almost
exclusively present in the earlier years of this magistracy, and to
the end of the office it largely preponderated. Even if we reject the
account that it was not until forty-five years after the institution of
the consular tribunate (400 B.C.) that a Plebeian was actually elected
to this post,[436] it is a significant fact that while purely patrician
colleges are found, there is no instance of one composed exclusively of
Plebeians. This fact may be simply a demonstration of the aristocratic
character of elective office, and shows that the masses preferred the
safety of the state to the advancement of their own order; for military
skill and experience, and even knowledge of law, were still chiefly to be
sought in the ranks of the _patres_.[437] Gradually, however, the Plebs
became familiarised with power and displayed greater trust in the leaders
of their own order. The year 400 does in any case mark a turning point in
the history of the office. After it we find more Plebeians elected; in
399 and 396 they form a majority of the college, and events were tending
to the demand, which was soon to be made, that a place in the supreme
magistracy should be reserved for candidates who represented a majority
of the citizens.

The power exercised by the consular tribunes was, briefly, that of the
consuls; they had the same _jus_, _imperium_, and _potestas_,[438] and
they enjoyed their insignia.[439] They presided over the elections
for their successors, and took the auspices on these occasions, the
recognition of a Plebeian’s right to consult the people _auspicato_
breaking down the last barriers of religious prejudice.[440] If this
magistracy was considered inferior in dignity to the consulship and only
a “shadow” of that high office,[441] it must have been only because it
was shared by more colleagues, and from a conviction of its occasional
character. Yet it was noted as a curious fact that, from constitutional
reasons unknown even to the early annalists, no consular tribune had ever
enjoyed a triumph.[442]

It must not be supposed that the consulship was in any way abolished
by this exceptional magistracy; it was simply kept in suspense during
certain years. Each year it was decided afresh whether consuls or
military tribunes should be appointed. Tradition represents the decision
as resting with the Senate;[443] but whether it exercised this function
by law,[444] or merely as the advising body of the magistrate who was to
hold the election, is unknown. This discretionary power shows that the
tribunate was regarded as an exceptional office; but its military and
political convenience caused it practically to replace the consulship
during the years when it was in vogue. The period of the military
tribunate is one of seventy-seven years, extending from 444 to 367. These
years show twenty-two consular _collegia_, and fifty-one of military
tribunes.[445] The stop-gap lasted for half a century, and the compromise
was maintained until in 367 a final settlement of the plebeian claim was
reached.

Meanwhile the consulship had been modified in yet another way—one which
was detrimental to the power of the office, but was meant to preserve
influence to the Patriciate. In the institution of the censorship we find
at work the same double motive which had influenced the government in
creating the consular tribunate—the sense that two men could not manage
all the business of a growing state, and the desire not to share with the
Plebeians the unimpaired powers of the supreme office.

It had been the custom for the king, and subsequently for the consuls,
to make an estimate, at certain intervals of time, of the effective
military strength of the state. This was originally a registration of
all the patrician burgesses; but, after the Servian reforms, it became
a numbering of all the citizens, for the purpose of discovering those
liable to military service, the class in which they should be enrolled,
and, in case of tribute being imposed, the liability of each household
to the property-tax (_tributum_). For these purposes it was sufficient
for the heads of families (_patres familiarum_) to be summoned and
questioned. Their answers formed the record, in accordance with which
military and financial burdens were imposed, and political influence in
the _comitia centuriata_ was determined. The recognition of citizenship
itself was dependent on this enrolment, for it is probable that from the
earliest times membership of a tribe was the symbol of the possession
of civic rights; while now the fact that the tribe was the basis of the
_concilium plebis_ and the _comitia tributa_ gave a vote to every one
enrolled in one of the _tribus_. The importance which the census had
assumed was not compatible with the consular performance of its duties.
The judicial and military functions of the annual magistrates interfered
both with its regularity and its completeness, and the temporary
suspension of the consulship offered a chance of vesting these duties
in other magistrates. In the year 443 B.C. two new officials, called
_censores_, were created,[446] who were to be elected by the _comitia_
of the centuries. The office was to be confined to the Patriciate,
possibly because it was felt that the solemn ceremony of purification
(_lustratio_) which closed the census could not adequately be performed
by plebeian hands. No one as yet dreamed of the future greatness of the
office; its beginnings were small,[447] and the tribunes offered no
opposition to the law which established an office which was to become the
greatest of political prizes.

The censorship, though a standing, was in a certain sense an occasional
office, for the tenure of power by the censors could never have been
coterminous with the interval between each census—an interval usually
of five years. The original tenure is unknown; possibly the censor
was supposed to continue in office until his duties were fulfilled.
It was not until the year 434 B.C. that the censorship was limited to
a definite term of a year and a half by a _lex Aemilia_, proposed by
the dictator Mamercus Aemilius.[448] The censors’ duties were as wide
as the ramifications of the census. His primary function was that of
registration, but one of the meanings of registration was the imposition
of pecuniary burdens on individuals; hence the censor’s first connexion
with finance. Another consequence of registration was of still greater
import. Qualifications of character must always have been considered
a necessary condition for the performance of even the meanest public
functions at Rome. Admission to the centuries and to the tribes, and
therefore the exercise of the active rights of voting and serving in
the army, was possible only to one not stained by crime. The secular
ground, one quite sufficient for a self-respecting community, was perhaps
assisted by the religious idea that no impure man should be present at
the mystic ceremony of purification. Such a testing of character could
have been performed only in the most cursory way by the consuls. But now
that a magistracy had been appointed which had leisure for a rigorous
scrutiny, it was inevitable that the rule of manners (_regimen morum_)
should in time overshadow every other aspect of the censor’s office, and
that this dual papacy should become the most dignified and dreaded organ
of the state.

Beyond the establishment of the consular tribunate, the censorship and
the transference of the election of quaestors to the newly created
_comitia tributa_,[449] the years 449 to 377 are not marked by any
great constitutional changes. They were years of compromise but not
of settlement; the restlessness of the reforming party was stayed by
the constant pressure of war. It could not accuse the military policy
of the governing class, which led its armies to victory and made all
needful concessions to plebeian talent. It was the epoch of wars with the
Aequians, Volscians, and Etruscans, of the siege of Veii, in which Rome
made her first great territorial conquest, and of the Celtic migrations,
which laid Rome in ashes, but made her the bulwark of the central Italian
nations against northern invasions, and gave her strength to remodel
and reform the Latin coalition of which she was the immediate head.
Occasional discontent was at this, as at every other period, excited by
the need of land distributions and the pressure of debt. Sp. Maelius
fell in 439 and M. Manlius in 384; but the government, though it would
not have its hand forced, was not wholly unwilling to make concessions
to poverty. The citizen troops on foreign service were given pay in 406,
and the land conquered from Veii was some years later allotted amongst
the Plebs. While the discontent of the poor was thus kept in check, the
government could afford to make harmless and unavoidable concessions
to Plebeians of higher rank. In 421 the number of quaestors was raised
from two to four; for, owing to the prolonged absence of armies, it was
thought fit that a special quaestor should be assigned to each consul
in the field.[450] The tribunes demanded that a fixed proportion of
these places should be reserved for Plebeians. This was refused, but the
compromise was arrived at that any of the four places might be filled
from the Plebs, a concession which was unavoidable, for the absurdity
of admitting Plebeians to the highest rank in the state and excluding
them from this subordinate duty must have been felt. The permission did
not, however, take effect until twelve years later (409 B.C.); but then
Plebeians were returned for three out of four vacancies at the _comitia_
of the tribes.[451] The first regular elective magistracy, however
limited its powers and dignity, had now been won for the Plebeians.

Meanwhile the provisional government drifted on. It won military
successes; it was gradually building up a hegemony in Italy. But the
effect of war now, as at an earlier period, was ruinous to those to whom
this government had to look for support. In spite of the palliative
measures of pay for the army and occasional land distribution, a large
portion of the yeoman farmers were again in a pitiable state. We cannot
now speak of the social grievances of Plebeians as a whole; those members
of the Plebs who began to occupy the benches of the Senate,[452] and
who aspired to the military tribunate or quaestorship, were as wealthy
as their patrician compeers. The race for office was keen between the
members of the two orders. The Patrician had now to beg for his place on
the curule chair. The first law against canvassing (_ambitus_) was passed
in 432; it prohibited a candidate from whitening his toga with chalk
before the elections[453]—a primitive measure, but one which shows that
the plebeian electorate had at last become a power. But though isolated
members of the Plebs were soaring into the upper regions, the mass of
this body still consisted of bankrupt agriculturists. The situation
which they regarded as desperate was, apart from the harsh law of debt,
the normal condition of a modern proletariate. But the ideal of the
ancient citizen was higher than our own; they wished to be proprietors of
freehold land or of land held on an undisturbed tenure from the state.

This discontent was the opportunity of the richer Plebeians,[454] who
wished to secure perfect political equality between the orders. In
378 loud cries were raised against the capitalists; a war with the
Volsci gave the tribunes the chance of impeding the military levy, and
some temporary concessions to debtors were unwillingly wrung from the
government.[455] When the next year saw the burdens reimposed, two
ambitious Plebeians, L. Sextius and C. Licinius Stolo, came forward
with the proposition that the only sure way of permanently remedying
the evils of the lower class was by securing one of the places in the
consulship to members of their own order. They formulated a programme
which was an attractive jumble of social and political measures. The
_plebiscitum_ which they promulgated promised a temporary relief from
debt, proposed a limit to the amount of public land which any individual
might possess, and declared that the military tribunate should be
abolished, the consulship should be restored, and that one of the two
consuls _must_ henceforth be a Plebeian. This comprehensive measure,
which attacked land, capital, and office,[456] was easily met. The two
tribunes stood alone, and their eight colleagues were without difficulty
induced to put their veto on the revolutionary measure. But it was
soon shown that, if the veto might be used against the interest of the
Plebs, the negative powers of the tribunes might be employed, with as
much legality and as little justification, to paralyse the life of the
state. The two tribunes, in virtue of the paramount authority which their
_sacrosanctitas_ had in the course of years secured to them, forbade the
election of any magistrate of the people. For five years successively
Licinius and Sextius were re-elected tribunes; during the whole of this
period (375-371) the only magistrates appointed were the plebeian aediles
and tribunes, and the state was without a head. A war with Velitrae led
the tribunes to relax their anarchical edict for the year 370. But the
long stand had reduced the number of vetoing tribunes to five. Another
clause was now added to the original proposals to the effect that the
two _duumviri sacris faciundis_, the keepers of the sacred books, the
storehouse which furnished political intrigue with its surest weapons,
should be raised to ten, and that half of these _decemviri_ should be
Plebeians.[457] None of the tribunes of 368 seems to have been prepared
to offer any effectual resistance to any of the provisions of the
law,[458] and the Patricians, driven from their first stronghold, took
refuge in a dictator. It was a sign that they had lost the game, for the
dictatorship could not be perpetuated. But it required the most strenuous
exertions of the leaders of the Plebs to keep their followers up to the
level of their original demands. The spiritless commons who had failed to
elect members of their own order, consular tribunes and quaestors, when
it had been in their power to do so, were for dividing the proposals,
passing the social measures at once and leaving the question of the
consulship for a future time. But Licinius and Sextius were not prepared
to be social leaders without reward. The only division to which they
subjected the complicated measure was to carry in 368 the clause sharing
the new decemvirate with the Plebeians; the other clauses were postponed.
In the next year, 367 B.C., they were tribunes for the tenth time. The
opposition was worn out, and the Licinio-Sextian laws were passed in
their original form. The greatest of plebeian victories had been won;
from this time the Plebs is really the dominant element in the state.
It was of little consequence that it did not assert its omnipotence
for some years yet; all that it desired further was bound to come. As
the magistracy was far more powerful than the people at Rome, the body
that exercised the whole of the highest prohibitive power through the
tribunate, and monopolised half of the highest positive authority in the
consulship, was bound to be supreme. Even the purely patrician privilege
of the _patrum auctoritas_ was no great disturbance to this power. It
became more a matter of form, the more the plebeian element entered into
the Senate.

The Licinian laws had the unexpected effect of adding two new
magistracies to the state. These were known as the Praetorship and
the Curule Aedileship. The institution of the former office was a
constitutional change of the first magnitude, being nothing less than the
addition of a third colleague to the consuls. It is represented as having
been a part of the compromise between the orders, the Plebeians allowing
a third purely patrician magistracy to be created in exchange for the
confiscated consulship.[459] But, even if we assume that the praetorship
was originally confined to the _patres_—a statement which has with some
reason been doubted[460]—it was necessity rather than ambition which
directed the creation of the office. The impossibility of the consul’s
paying adequate attention to duties of jurisdiction had been one of the
motives which led to the establishment of the consular tribunate. Now
that the consulship was permanently restored, provision had to be made
for the permanent severance of civil jurisdiction from that office.
As jurisdiction implied the _imperium_, and all the possessors of
this regal prerogative were necessarily colleagues, the praetor was a
colleague of the consuls. He was created, as the phrase ran, “under the
same auspices,”[461] and therefore by the same assembly and under the
same formalities of election. He bore the early title of the consuls,
which, in spite of its inappropriateness to his usual peaceful duties,
came to cling to him exclusively. But, though he was needed chiefly
for purposes of jurisdiction, one branch of the _imperium_ could not
be singled out to the exclusion of the others. The praetor possesses
all the aspects of the supreme power, the capacity for command in war,
for initiating legislation, for summoning and transacting business with
the Senate. How these powers were harmonised with, and subordinated
to, the similar powers of the consuls, will be described elsewhere.
The main business of the original praetor did not clash with that of
his colleagues, for, though in theory perhaps the consul never did
lose his control of civil jurisdiction,[462] practice decided against
his interference with it, and the praetor was for more than 120 years
(366-242) the sole civil magistrate of Rome. At the close of this period
a second praetor was appointed, whose duty it was to decide cases between
foreigners (_peregrini_) and between Roman citizens and foreigners—an
addition rendered necessary by the growth of Rome’s territory and
business, and which has no further political significance.

The praetorship, if it ever was a patrician preserve, did not long remain
such. Thirty years after its institution (337 B.C.) a Plebeian, Q.
Publilius Philo, successfully contested the post. The objections of the
presiding magistrate, whether based on law or custom, were overruled and
Plebeians declared eligible for the office.[463]

The appointment, simultaneously with the praetor, of two additional
aediles, secured nothing for the Patricians, but a great deal for the
state. The military duties which prevented the consul from administering
justice and attending to registration, also hindered him from devoting
himself to the _minutiae_ of police and market regulations. It was an
anomaly that these duties, so far as they fell to the lot of any special
officials, should be in the hands of two plebeian assistants of the
tribune.[464] It was from them that the two new magistrates borrowed
their names, and the similarity of title and functions had the happy
result of fusing into one corporation the plebeian officials and the
new magistrates of the community. The latter were known in later times
as _aediles curules_, from the curule chair which they had in common
with the magistrates vested with the _imperium_. The Patriciate is said
to have been the original condition of eligibility to the office;[465]
but this was very soon abandoned in favour of the practice that the
curule aediles should be chosen in alternate years from Patricians and
Plebeians.[466] Later still—at what period is uncertain—the magistracy
was annually accessible to members of both orders.

The accession of Plebeians to the consulship had been the key of the
position; it had broken down the last pretended religious scruple, and
a few years saw the patrician defences of every office overthrown. The
year 356 witnessed the first plebeian dictator;[467] no law appears to
have been required to secure the Plebs admission to this office, the
qualification for the consulship being considered _ipso jure_ to open
a passage to the dictatorship. In 351 a Plebeian was first admitted to
the censorship;[468] but mere admissibility was not enough, and in 339
one of the laws passed by the plebeian dictator, Q. Publilius Philo,
_reserved_ one of the two places in the censorship for members of his
order.[469] How difficult it would have been for the Plebs to secure
this office, apart from such a regulation, is shown by the fact that
the first exclusively plebeian censorship dates only from the year 131
B.C.[470] With respect to the occupation of both of the consular places
by Plebeians, a doubt seems to have existed of its legality, which was
removed in 342 by a _plebiscitum_ passed into law which declared “uti
liceret consules ambos plebeios creari.”[471] We have already noticed
their capture of the praetorship in 337 B.C.

There was but one more fort, but that a strong one, which the plebeian
_principes_ had to storm. This was the circle of the priestly colleges.
The two religious guilds of paramount political importance, apart from
the decemvirate (_sacris faciundis_) to which Plebeians had been already
admitted, were those of the pontiffs and augurs. The pontifical college,
which in the monarchy had consisted of five members, was now composed of
four, the place occupied by the expelled king having never apparently
been filled up.[472] The augural college, which should have consisted of
six, was also at this time reduced by some accident to four members.[473]
In the year 300 B.C. two tribunes, Q. and Cn. Ogulnius, brought forward
a bill for raising the number of the augurs to nine, and that of the
pontiffs to eight, the added numbers in either case to be taken from the
Plebs.[474] The measure was understood to be primarily in the interest of
the noble Plebeians, already in possession of curule office and triumphal
ornaments, but it did to a large extent assist the rights of the Plebs as
a corporation; for the religious veto henceforth, though it might be used
by the nobility against the interests of the lower orders, could not be
employed by the Patricians to check plebeian measures. The bill, which
became law, established the religious equality of the two orders, so far
as religion was a political force. It is true that, as we shall see, the
Plebs were always excluded from certain non-political priesthoods; but,
on the other hand, one of the religious colleges of national importance
established in later times—the _triumviri epulones_, created in 196
B.C. for preparing the _epulum Jovis_ and banquets given in honour of
the other gods[475]—seems from its origin to have been composed wholly
of Plebeians.[476] The change, however, though indirectly favourable
to the Plebeians, was not of a democratic character; the priesthoods
were kept within a few distinguished families through the principle of
appointment. The method was that of cooptation, which we find existing
in 453 B.C.[477] It was not until the last century of the Republic that
the _lex Domitia_ (104 B.C.) ventured to give the election, not indeed to
the Populus, but to a special assembly composed of seventeen out of the
thirty-five tribes chosen by lot, and even then the forms of nomination
by the head of the college, and of cooptation by its members, were
scrupulously observed.[478]

In sketching the invasion of office and honours by the plebeian nobles
we have ventured to anticipate somewhat the chronological sequence of
events. The commons, too, had during this period their share of political
emancipation. Thirty-nine years before the Ogulnian law something had
been done by legislation to increase the independence of the Plebs as a
corporation, and to free the assemblies of the Populus from the legal
control of the Patricians. In 339 B.C. a plebeian dictator, Q. Publilius
Philo, carried a law making _plebiscita_ binding on the people (_ut
plebiscita omnes Quirites tenerent_).[479] The meaning of this law was
clearly not understood by our authority. Its pretended wording is almost
identical with that of the Valerio-Horatian measures;[480] but what was
done on that occasion did not need repetition, and the object of the
Publilian law must have been to secure more immediate legal validity to
such measures passed by the Plebs as did not refer to that corporation
alone—to make, in fact, the stages of transition from _plebiscitum_ to
_lex_ a matter of formal and not of real importance.[481] Another law
passed by the same dictator had reference to the _patrum auctoritas_.
We have seen what this power had become, probably from the dawn of the
Republic.[482] It was a claim by the patrician members of the Senate to
accept or reject any measure of the Populus, when assembled by curies
or by centuries. It never affected _plebiscita_, and we know too little
of the _comitia tributa_ to say whether the measures of that body were
submitted to it or not;[483] the hampering of the _comitia curiata_ was
by this time of no importance, and the _lex Publilia_ confined itself
to the application of the _auctoritas_ to the centuries. By this law it
was enacted that the consent to laws passed by the _comitia centuriata_
should be given before the voting commenced.[484] This provision was
shortly afterwards (perhaps in 338 B.C.) extended by a _lex Maenia_ to
elections.[485] It is evident that neither of these provisions could
have made the _auctoritas_ nugatory, for it was not more difficult for a
section of the Senate to decline to submit a question to the people than
to reject it when passed. The provisions may, however, be a sign that the
_auctoritas_ was becoming a mere form; but its formal character was due
to the rapidly increasing preponderance of Plebeians in the Senate.

But though the popular assemblies were thus free from patrician control,
and the magistrates, subject only to the self-imposed limitation of
taking advice from the Senate, could elicit any utterance they pleased
from the _comitia_, there was one grave defect in the existing system
of legislation which called for remedy. The plebeian magistracy, which
circumstances had raised to a pre-eminence above all other powers,
had not the freedom of the other magistrates. The _rogationes_ of the
tribunes, when accepted by the Plebs, still required some further
sanction to become laws. This anomaly might have been remedied in one
of two ways; either by giving the tribune the right of summoning and
presiding over meetings of the people, making him in fact a magistrate
of the community, and thus abolishing all distinction between Populus
and Plebs, or removing the impediments which still hampered tribunician
legislation in the _concilium plebis_. The conservatism of the Roman
character, and perhaps the class feeling reviving again at the beginning
of the third century in consequence of a renewed outbreak of the Plebs,
caused the latter course to be adopted. In the year 287 the commons,
oppressed by debt, again seceded—this time to the Janiculum. The plebeian
dictator appointed to effect a settlement met social grievances by a
political concession. He passed a law which most of our authorities
represent as verbally identical with the Valerio-Horatian and Publilian
laws,[486] but which seems to have been of a very different and far
more definite character. The lawyers[487] regard the _lex Hortensia_
as the measure which gave decrees of the Plebs the full force of laws.
Henceforth there is between _lex_ and _plebiscitum_ merely a difference
of form and name; their _potestas_ is the same,[488] and even legal
formulae use the words as practically identical.[489] A law could repeal
a plebiscite and a plebiscite a law;[490] in the case of a conflict
between the two, the rule of the Twelve Tables held good that the later
repealed the earlier ordinance. It is not, therefore, surprising to
find that in the annalists, even those with pretensions to accuracy,
Populus and Plebs are used indifferently,[491] and it is only at times
by carefully noting who is the presiding magistrate on the particular
occasion, that we can determine whether the ordinance he elicits is
a decree of the _comitia_ or the _concilium_. The difference in the
legislative powers of the two assemblies came in course of time to be
little more than a difference in magisterial right;[492] while the
_comitia_ of the centuries and tribes were presided over by magistrates
with the _imperium_, the _concilium_ of the Plebs could be summoned
and addressed only by plebeian magistrates. Yet the past history of
the various assemblies was decisive as to their elective and judicial
functions, and practice tended still further to fix the scope of the
powers of each. But at the time of the _lex Hortensia_ the difference
between the two parliamentary sovereigns—the Populus and the Plebs—was
even more marked; for the Patricians, excluded from the _concilium_,
were still a considerable body, and the tribune had not yet become, like
the magistrates with _imperium_, quite a servant of the Senate.[493]
The Hortensian law had at the time a political significance which
it afterwards lost; but it had a hidden import which was of vital
consequence for the history of the state. By perpetuating the Plebs as
a separate corporation it preserved the tribunate in all its primitive
majesty, and thus maintained the power subsequently to be used as an
instrument of senatorial and monarchical rule.

The tendencies of plebeian emancipation were almost all in favour of
the upper classes; that it never was a democratic movement or one led
by democratically-minded men is most strikingly evidenced by the utter
indifference shown by the leaders to the economic evils under which the
masses laboured, and which they used as instruments to further their
ambition. Solon abolished slavery for debt at a single stroke; to the
Roman it is a sacred thing, an expression of _Romana fides_; while
the Greek προστάτης struggled for others, the Roman patron fought for
himself. But continued pressure caused some tentative efforts to be made
in the latter half of the fourth century to mitigate the curse of debt.
A _lex Marcia_ of 352 B.C. gave the debtor the right of summary arrest
(_manus injectio_) of the usurer, to recover the fourfold penalty for
the illegal interest;[494] while in 326 an attempt was made to give the
future masters of the world the mastery over their bodies. In 313 a _lex
Poetilia_ was passed forbidding the imprisonment of _nexi_ who could
swear that they had reasonable hopes of ultimately satisfying their
creditors;[495] it therefore abolished most contracts on the security of
the person; although the _addictio_ and imprisonment of debtors by order
of the court continued through the Republic and into the Empire. But if
the harshness of the law was one evil, ignorance of its forms was another
almost equally great. An accident supplied the remedy. The pontiff Appius
Claudius had reduced the forms of action to writing; but the book meant
for the guidance of the pontiffs was immediately revealed to the profane
eyes of the people by his clerk, one Cn. Flavius, a freedman’s son. The
fraudulent secretary also posted up a tablet containing a list of court
days (_dies fasti_) on which the _legis actio_ was possible.[496] The
_penetralia_ of the pontifical college had now become the property of the
masses, and although the chief pontiffs still furnished for centuries
the highest names to Roman law, they professed the science openly,[497]
and secular teaching soon tore the veil from the hidden features of
jurisprudence.

But, apart from these minor benefits, the mass of the Plebeians did not
share to any very large extent in the triumph of their order. The true
reason of the individual Roman being thus thrust into the background
can only be given by a review of the causes, soon to be treated, which
moulded both the theory and practice of the developed Roman constitution.
It must suffice here to trace the painfully inadequate results which were
secured by these centuries of agitation by a glance at the distribution
of power in the Roman state, at the date of the war with Pyrrhus, or the
outbreak of the struggle with Carthage.

The old nobility had relaxed its exclusive hold of office, but only to
give room for the still firmer grasp of a new. This was an aristocracy
of mixed origin, composed indifferently of the leading patrician and
plebeian families. The test of _nobilitas_ was the capacity to point to
ancestors who had held office which carried with it the right to sit on
the curule chair. Its outward sign was the possession of the so-called
_jus imaginum_. The _imagines_ themselves were portrait-masks in wax,
modelled from the face of the dead, and their primary use was for the
purpose of funeral ceremonies. The original was moulded to be placed
on the face of the deceased, and so to perpetuate his life in another
world; but a copy was kept to give verisimilitude to his fictitious
resurrection, which the burial of one of his descendants demanded. At
such funerals actors were hired to represent the mighty dead; they wore
their _imagines_, and were adorned with the insignia of the offices which
these had filled in life, with the _toga praetexta_ of the consul or
praetor, the purple robe or the _toga picta_ of the censor, and they sat
on curule chairs round the Forum to listen to the orator who reminded
them of their own great deeds.[498] As such a public funeral in the Forum
was a concession of the state, the prospective right of having one’s mask
exhibited, which constituted the _jus imaginum_, was a strictly legal
privilege. It was possessed by all those who had been in possession of
the _toga praetexta_ and the _sella curulis_[499]—the dictator, master of
the horse, consul, censor, praetor, and curule aedile. But, even apart
from the occasions of such solemn mummery, the _imago_ was a sign of the
rank of its possessor. When not funereally employed it was suspended on
a bust in the wings of the central hall (_atrium_) of the noble’s house.
Beneath each portrait ran an inscription (_titulus_ or _elogium_), which
gave the names and deeds of the person represented. The portraits were
joined by lines along the walls which showed the _stemma_ or family
tree. It is possible that this display in the _atrium_ was looked on as
a public exhibition, and it may originally have been limited by law; but
in later times it seems best to conclude that the funerary exhibition
alone was the subject of the specific _jus_.[500] But this outward token
of nobility, which at Rome took the place of the modern title of honour,
was of importance as emphasising the distinction between the _nobiles_
and the _ignobiles_, in drawing the plebeian aristocracy closer to
the patrician, which before the date of the Licinian laws had been in
exclusive possession of this right, and in asserting the hereditary claim
to office which the Roman electorate was only too ready to recognise.
The acceptance of the claim was less dangerous than it is in most modern
states, since primogeniture was not recognised in the transmission of
honours,[501] and it was the capable and not the elder son whom the
vote of the _comitia_ raised to the curule chair. The claim too might
become dimmed by disuse, and the Plebeian whose immediate ancestors had
held high rank showed a brighter scutcheon than the Patrician who was
connected with a noble _stemma_ by ignoble links.[502] But the Patriciate
itself conferred a kind of nobility, and one that, whatever its basis,
might have been justified by office, for there could have been few
members of the order who could not point to curule ancestors in the past.
Although the Plebeian who _first_ secured curule office, and thus ceased
to be _ignobilis_, was called a _novus homo_, the designation seems
never to have been applied to the member of a patrician _gens_.[503]
Nobility, if once secured, could never be lost; but the hereditary claim
to the suffrage of the electors was of little avail if unaccompanied by
exceptional merit or by wealth. The claims of the latter were in fact
given a kind of legal recognition by the rule established about the time
of the first Punic war, that the cost of the public games should not
be defrayed exclusively by the treasury.[504] The aedileship, whether
curule or plebeian, was, as we shall see, not an obligatory step in the
ascending scale of the magistracies; but, as it was held before the
praetorship and the consulship, it is obvious that the brilliant display
given to the people by the occupant of this office would often render
fruitless the efforts of his less fortunate competitors, and that this
legitimised bribery would exclude from office both the poorer _nobiles_
and the struggling _novus homo_.[505]

The idea of a privileged nobility, which closed its ranks to new men,
had become fixed by the date of the second Punic war.[506] By the close
of that war the old stock had reached its maturity and had begun to
decline; and, although men like Cato or Cicero might force themselves to
the front by pertinacity and ability, or the belief in privilege might
be rudely shaken by the people’s thrusting into the coterie a Varro or
a Marius, the aristocrats came to look on the introduction of new blood
as a pollution to the order.[507] Time, which purifies all things, had
made the slave-blood of the successful Plebeian as blue as that of the
descendant of kings by whom he sat.

But, in spite of this unholy alliance of the ancient foes, the
distinction between the orders never was abolished. In Cicero’s time
the separate rights of the Patricians could still be enumerated and
defended by the orator. Besides the shadowy and ineffective powers of
the _patrum auctoritas_ and the _interregnum_, they possessed half the
places in the great priestly colleges, which were shared between the
orders, and certain priests—the Rex Sacrorum, the three great Flamines
and the Salii—were chosen exclusively from their ranks.[508] The place
of the Patriciate in the theory of the constitution—as illustrated by
the _auctoritas_ and the _interregnum_—is, as we shall see, very great
indeed; but this theoretical importance conferred very little power, and
the Plebeians, with their exclusive magistracies closed to the _patres_,
with one place reserved for them in the consulship and censorship and the
other accessible to their order, had won in the long race for honours.

CHAPTER III

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

§ 1. _The Classes of the Population_

By the date of the _lex Hortensia_ (287 B.C.) the Republican constitution
had, in all essential points (considered as the constitution of a
city-state), completed its growth; but, before we proceed to examine the
theory and practice of the developed polity, it is necessary to pause
and inquire what changes these centuries of Republican development had
made in the status of the citizen, and in that of the other classes of
the city, who shared partially in, or were excluded from, his rights, and
what modifications had been undergone by the few main legal rules which
mark the outline of their social environment.

The merging of Patricians and Plebeians into one community created the
necessity for a universal conception of citizenship applicable to the
whole body which possessed active political rights, while the growing
practice of granting partial civic rights to the members of certain
Italian communities led to the distinction between the fully-privileged
and the partially-privileged citizen. The former is the _civis optimo
jure_, the latter the _civis non optimo jure_. It is only of the former
that we shall speak here; the consideration of the latter will be more
appropriately deferred to that portion of our work which treats of the
Italian confederation.

The normal mode of the acquisition of citizenship was naturally birth,
either from two citizens or from a citizen and a foreigner. The question
of the necessity of the marriage of the parents for the full citizenship
of the children we shall soon consider; the primary question that
presents itself to a nation is that of the allegiance of the child who
is the product of a citizen and a foreigner. In such a case the older
principle of Roman law (an instance probably of a universal principle
of Italian law) was that, where _conubium_ existed between the parents,
the children followed the status of the father; where _conubium_ did
not exist, nature dictated that they should follow the condition of the
mother.[509] But an arbitrary exception to this principle was made at
an unknown date in Roman law by a _lex Minicia_ which enacted that, in
case of unions without _conubium_ between a Roman and a foreigner, the
children should follow the status of the less privileged parent; the
child of a _civis Romana_ by a _peregrinus_ was, therefore, himself a
_peregrinus_.

The exceptional modes by which citizens were created were (i.)
state-conferment of the _civitas_ on _peregrini_ or of full _civitas_ on
_cives non optimo jure_, and (ii.) the manumission of slaves.

(i.) State-conferment of the _civitas_ was only an exceptional measure in
so far as it required a special legislative act.[510] The extraordinary
liberality of Rome in this respect, never equalled in the life of the
ancient city-state—a liberality which spread the name of Roman citizen
first over Italy and then over the greater part of the civilised
globe—was not an outcome of any suddenly adopted policy, but persisted
from the birth of the city[511] to the world-embracing edict of Caracalla
(212 A.D.). A few figures are sufficient to represent the extent of
the increase effected by this means. The male citizens who appeared on
the census rolls were, at the close of the first Punic war (240 B.C.),
260,000; in 124 they had risen to 394,726; in 85, after the incorporation
of the greater part of Italy, to 963,000.[512] Under Augustus (28 and 8
B.C. and 14 A.D.) the figures were 4,063,000, 4,233,000, and 4,937,000;
and the census of Claudius (47 A.D.) gave a return of 5,984,072 _civium
capita_.[513]

This gift of citizenship was, in the Republic, conferred exclusively by
a decree of the people (_jussu populi_). Such decrees might be either
of a standing or a particular character; they might confer the gift
immediately on the recipients or through intermediary delegates. Standing
rules are mainly such as governed the condition of the dependencies
of Rome. We shall find that the rights of Latin colonies provided
facilities for the attainment of citizenship; the criminal laws sometimes
gave a foreigner the gift of _civitas_ as a reward for successful
prosecution;[514] and, after the fall of the Republic, the enlistment of
legionaries from the provinces was one of the most fertile sources from
which the citizen body was recruited. Particular conferments, if not made
directly by the people, might be effected through the Senate acting as
its delegate,[515] or through commissioners charged with the founding of
colonies. These were generally the specially-appointed _IIIviri coloniae
deducendae_; and in all such cases of delegation the power was conferred
by a _lex_.[516] In the last century of the Republic we find the custom
growing up of permitting by special enactment such powers to generals in
the field. Marius in the Cimbric war had the gift of citizenship in his
hands, and a _lex Cornelia Gellia_ granted a similar power to Pompeius
during his Spanish campaigns.[517] This was the stepping stone to the
right possessed by the sole commander-in-chief, the Princeps, to confer
the citizenship at his pleasure.

(ii.) Any perfectly valid form of manumission conferred citizenship on
slaves. Every form was undertaken at the initiative of the master, but
for it to be perfectly sound (_manumissio justa_)[518] he must observe
certain rules of law. The most usual form was the _manumissio vindicta_.
It was one of the many fictitious forms of the old capture of property
(_vindicatio_), the primitive Roman method of recovery. A man of straw,
called the _adsertor in libertatem_, appeared before any magistrate, who
could claim the conduct of the _legis actio_[519] declared the slave to
be free, and touched his head with a staff (_vindicta_).[520] The master
yielded, and this cession of his rights (_in jure cessio_) was followed
by the declaration of the magistrate that the slave was free.[521]

The second form was the enrolment on the register of citizens by the
censor, when the census was in progress, at the request of the master
(_manumissio censu_). It was the false declaration of the master that the
man was free which gave validity to this form.[522]

The third and later form was manumission by testament (_manumissio
testamento_), by which the master either commanded the freedom of the
slave in his will, or left it as a trust to his heir.[523]

The comparative inconvenience of these forms had led to other simpler
modes of manumission—by announcement of the freedom before friends
(_inter amicos_), or through a letter to the slave bidding him live as a
freeman (_per epistolam_), or even by inviting him to dine as a freeman
at his master’s table (_per mensam_).[524] Manumission effected in this
informal way, though protected by the civil courts, did not confer the
political rights of citizenship.

The citizen who was made such by manumission was a _libertinus_; all
others were, at the close of the Republic, free-born (_ingenui_). The
distinction conferred by _ingenuitas_ was, as we shall see, an important
one, since this condition was a requisite for the army, the magistracy,
and the higher orders (_ordines_) of the state. But the conception of
“free birth,” though a simple one at the end of the Republic, is one that
has had a history, and _ingenuitas_ did not at all times bear the same
meaning. At the end of the fourth century B.C. an _ingenuus_ was one who
was sprung, not merely from free but from free-born ancestors, for the
term _libertinus_—always its antithesis—was used to cover, not merely the
manumitted slave, but his descendant in the first degree.[525] Before
the close of the Republic the son of a freedman or of a freed-woman was
_ingenuus_, the only condition being “birth in a state of freedom.”[526]
The status of the mother alone was taken into consideration, that of the
father being neglected, and the condition of marriage, which could not be
taken into account if one of the parents was unfree, was necessarily not
required.

Legal marriage must in early times have been a condition of _ingenuitas_
in the plebeian, as it certainly was in the ancient patrician community.
But before the close of the Republic this condition too was disregarded,
and illegitimate children (_spurii filii_) were placed on a level, as
regards honours and offices, with those born from wedlock.[527] It was
one of the many triumphs of the law of nature over the law of the state.

The rights (_jura_) of the citizen in the developed Republic were
those which we have enumerated as belonging to the free Plebeian of
the monarchy,[528] with most of the exclusively patrician privileges
added. They included the rights of marriage and of commerce, with their
consequences, the _patria potestas_ and the right of making testaments,
and in addition, the power of occupying domain land and the rights
of suffrage and of office. The Patricians still possessed some minor
privileges,[529] and the old theory was still upheld which reserved
the _auspicia_ for the _patres_. But, with Plebeians in possession of
the _imperium_, this doctrine was maintained by the fiction which gave
the occupant of a “popular” and, as it still continued to be called,
“patrician” magistracy the patrician _auspicatio_.

The duties of the citizen are certain services which he owes to the
state, which are paid either by his personal labour or by his property.

The name for these duties (_moenera_, _munera_, connected with _munire_,
to “fortify”) shows that they were connected with the military defence
of the city. Originally most of such burdens were probably defrayed by
the personal labour of the citizens.[530] Even the financial burdens
which afterwards pressed on property (_munera patrimonii_) were largely
defrayed by their enforced toil (_operae_).[531] In the municipal
legislation of the close of the Republic we find the services of the
citizens demanded for imposts such as the repair of roads and walls
(_munitio_), which are in modern times covered by rates.[532] But the
_tributum_, at whatever time it was first imposed, came to satisfy most
of the necessities formerly met by this enforced labour. Other public
needs were, in the Republic, met by contracts concluded by the censor, of
which we shall speak in connexion with that office. A clear distinction
could now be drawn between the great burden on property—the tribute—and
the great burden on the person—military service.[533]

The tribute was, from the time of the Servian census, imposed on the
property which formed the basis of the _classes_—originally, therefore,
on _res mancipi_;[534] later it was levied on all property and was paid
by all registered citizens who were _sui juris_, the aes _hordearium_ and
_equestre_ for the support of the knights being still paid by children
and women who were also _sui juris_.[535] The lowest property taxed
was, as we have seen, one of 1500 asses.[536] The taxation was not,
however, like military service, graduated according to the _classes_,
but was collected uniformly, usually at a rate of one _as_ in the 1000
(⅒ per cent). The tribute was an extraordinary tax and was imposed, like
military service, only when the necessities of the state demanded it,
practically when there was no reserve fund in the _aerarium_. The state
regarded it as a loan rather than as its due, and sometimes considered
itself bound, when its finances were more flourishing, to return the
money to the contributors.[537] The vast revenues accruing to the state
as a result of the third Macedonian war in 167 B.C. caused the cessation
of the tribute,[538] and no further direct tax was collected at Rome
until at the end of the third century A.D. it was reimposed by Diocletian
and Maximian. Tribute was, indeed, inconsistent with Rome’s imperial
position. It had been meant to defray the cost of the legions, but, with
the creation of the empire, each province defrayed the expenses of its
own military occupation.

Service in the legions (_militia_) was in theory a burden; exemptions
from it were occasionally granted as though it were a troublesome
duty,[539] and the citizen who did not present himself for the
conscription was sold as a slave[540] across the Tiber.[541] But the
treatment of the levy and the feeling of the citizens raised this burden
(_munus_) into a privilege (_honor_); it was for this reason that free
birth was always required as a qualification for a legionary, and that
the ranks were never tainted by the admission of men of servile blood.
The Servian census was still the scale by which military service was
measured, both in the _legio_ and in the select corps of citizen cavalry
(_equites_). The legal duration of service throughout the greater part
of the Republic was sixteen, or at the most twenty yearly campaigns
(_stipendia_) for the foot soldier, and ten campaigns for the knight.
The performance of the _munera_ of tribute and military service required
a third duty, which was the condition of both. This was the presence
of the citizen who was _sui juris_ at the census for the purpose of
registration. All who neglected this duty (the _incensi_) could be sold
as slaves across the Tiber.[542]

The concepts of the individual as the subject of rights, of their tenure
and of their infringement, gave rise to a gradually developed theory of
the _jura_ with which the citizen was invested, and the mode in which
they might be lost, which plays a large part in the speculations of
the jurists. It attached itself to the primitive idea of a _capitis
deminutio_, the lessening of status caused by the loss of family
rights.[543] Gradually jurisprudence evolved the idea of a _caput_ or
personality possessed by every individual independent of citizenship, an
idea running parallel with the conception of a law of the civilised world
(_jus gentium_) independent of the _jus civile_. From this point of view
loss of _citizenship_ could be spoken of as a _capitis deminutio_. There
was besides an infringement of personality greater even than the loss of
citizenship of which the natural man might be the victim. This was the
loss of freedom. These two great derogations of _caput_ were spoken of as
_magna capitis deminutio_;[544] but finally a more precise classification
gave the following three grades of loss of status:[545]—

(i.) _Capitis deminutio maxima_ was the loss of _civitas_ and _libertas_,
consequent on a man’s becoming a prisoner of the enemy. With the loss
of freedom, political and therefore private rights[546] ceased _ipso
jure_ to exist. The obligations of international law might also produce
this condition; the Roman general who concluded a treaty with the enemy,
which the people would not accept, was handed over as a scapegoat for the
broken faith of the community[547] (_deditus_), and similar treatment
was meted out to one who had violated the sanctity of envoys,[548] or
to a general who had made war with a state in alliance with Rome.[549]
This loss of status was also produced by the civil law, in so far as it
enjoined slavery as a penal measure—e.g. in the case of the _incensi_ or
of those who shirked military service[550]—or permitted the sale of the
debtor or of the child into a foreign land.[551]

(ii.) _Capitis deminutio media_ (or _minor_[552]) was the loss of
_civitas_ alone.

This might be voluntarily incurred by the assumption of the citizenship
of another town, for the principle of the older Roman law was that a man
might not be a member of two independent communities.[553] The exile
from Rome which followed condemnation for a criminal offence was of
this type of rejection of citizenship, for the exile was always assumed
to be a voluntary act. Enforced abstention from the Roman _civitas_,
which necessitated a continuance in exile, was produced by the decree of
outlawry (_aquae et ignis interdictio_)[554] often passed by the people
against an individual who was in voluntary banishment for a crime.

(iii.) _Capitis deminutio minima_—originally a loss of family rights—was
improperly construed by the later jurists as a change of family
status.[555] Its applications have been already considered.[556]

There were means of recovering the status lost in either of these
three modes. The loss of _familia_ in its original sense[557] might
be recovered by emancipation; the loss of _civitas_, if enforced by
the state, by a special act repealing this disability (the _restitutio
in integrum_ of the criminal law). _Libertas_ could be regained by
the exercise of a right known as the _jus postliminii_. The return,
unintentional or premeditated, of the captive within the limits of his
own country destroyed the state of bondage, and restored the _ingenuitas_
and the rights of the former prisoner. Although described as a legal
fiction[558] it was a direct consequence of the simple principle that a
Roman could not be enslaved on Roman soil.

The Roman family had been subjected to many modifications since we
last considered it.[559] The _patria potestas_, indeed, existed in
all its old rigour, and the power of life and death over the children
still found occasional expression; but the unity of the family had been
largely dissolved by the laxity of the marriage tie. A modification of
the _usus_ marriage had come into vogue, which recognised the consent
of the parties, without the prescriptive tenure by which the _potestas_
was asserted, as the only bond—one, therefore, dissoluble at any moment
by rejection on the part of the husband or by mutual consent. The
wife remained a member of her father’s _familia_, and if she was _sui
juris_, retained her own property; for the tutelage of women was out of
accordance with the spirit of the age, and, though not abolished, was
evaded by cunningly contrived legal fictions.[560] Never, perhaps, have
women been freer from social trammels and legal bonds than they were in
the last century and a half of the Republic, and one of the features
of their independence was an indirect, but very powerful, influence on
politics.

But the greatest change in Roman society was due to the growth of a slave
population, which, in the city and that part of Italy which formed the
Roman domain, reduced the free citizens to a minority.

The rules of the _jus gentium_—which in this instance, as in many others,
is pure international law—permitted the captive to be enslaved until such
time as he set foot again in his native land, if this country of his were
an independent state.[561] This principle, applied to the victorious
wars of Rome, had flooded Italy with specimens of various nationalities
which were applied to various uses. These prisoners of war were, as a
rule, immediately transferred from the ownership of the state to that of
private individuals. They were sold by the quaestors,[562] often in the
camp,[563] and the slave-dealer tracked the footsteps of a successful
general.[564] War alone might have provided all that were needed for the
most luxurious community, if we may judge from the result of the second
conquest of Macedon, which swept 150,000 Epirot captives into Italy,[565]
and from the consequences of the campaigns of Caesar and Lucullus. But it
was supplemented by a brisk slave trade, which after the fall of Corinth
and Carthage (146 B.C.) centred at Delos, and which at the close of
the Republic had reached such dimensions that, during the reign of the
Cilician pirates, 10,000 slaves are said to have been imported and sold
there in the course of a single day.[566] It was chiefly from the latter
source that the versatile natives of the East were brought, Phrygians,
Mysians, Lydians, Lycians, Paphlagonians, the Hellenised members of the
“nations born to slavery,” who, while professing to interpret, often
guided and controlled, the wills of their slower Roman masters.

Their use was twofold; they were either labourers in the workshop and the
field, or domestic members of the villa or the palace, and their presence
in either capacity was fraught with important political consequences
for Rome. Their cultivation of the mechanical arts and crafts made the
Roman noble’s household self-sufficient[567] and the competition of the
free artisan almost a hopeless task. In the country they were gradually
replacing both the free labourer and the yeoman farmer. The advantage of
cheap labour, which could not be snatched from the master’s hands by the
needs of distant wars, was at an early period recognised by the nobles
in the cultivation of their vast estates.[568] After the acquisition of
the province of Sicily, which supplied cheap food to Rome, slave labour
on the large estates became an economic necessity; for it was the only
condition on which corn could now be productively grown. The lot of the
plantation slave, unknown to his master and exposed to the mercies of
the overseer, was a shameful parody of the earlier domestic servitude.
Yet the state did nothing. The slave possessed no rights, as in the time
when he, perhaps, required none. In the case of domestic slavery, the
moral influence of an intellectually superior race was often an adequate
substitute for the absence of rights, and a further _solatium_ was found
in the door of emancipation which was ever open to the favourite. The
Roman was not ungrateful, and he recognised that it was the slave who
made him an individual power in the world. The unequalled administrative
capacity of men like C. Gracchus, Crassus, Caesar, and Pompeius, which
has found no parallel in the modern world, was largely due to their
absolute command of men of perhaps less originative power, but often of
greater capacity for combination and detail than they.

Usefulness to the master was in fact the end to which the changes in the
law relating to servitude were directed. The slave might benefit his lord
by a contract entered into with a third party, but could not make his
condition worse.[569] The _dominus_ could sue on the contract, although
the slave having no legal personality could conclude only a natural
obligation (_naturalis obligatio_), but he was not liable for the losses.
To protect third parties, however, and to give the necessary legal credit
to this useful agency, the praetor gradually established a series of
quasi-liabilities for the master, which were really in his interest;
for without them slave-agency would have become impossible. Thus, if
the master had countenanced the slave’s contract, he was liable (_actio
quod jussu_); if the slave had embarked his _peculium_ in trade with the
master’s knowledge, this property, though in strict law not his own,
could be claimed by the creditors, after the slave’s debts to the master
had been deducted (_actio tributoria_). Finally, any liability incurred
by the _peculium_ could be recovered by creditors, the master’s right of
deducting his own claims against it being preserved (_actio de peculio_),
and any material advantage derived by the master from the contract of
a slave was taken into consideration and the property of the _dominus_
made liable to that extent (_actio de in rem verso_).[570] The slave, in
fact, as having no personality of his own, is the best of agents, and the
theory of agency, which the law of Rome has bequeathed to us, is one of
the most perfect and permanent results of her system of slavery.

Apart from these relations to his master the slave was still ignored by
law. He could not give evidence in court except under torture.[571] In
case wrongs were done him, it was not he but his master that demanded
reparation;[572] while his lord himself was the judge of the delicts
which he had committed against himself or the household.[573] That for
crimes against others the slave was tried by the ordinary process of
criminal law was a concession to society rather than to the wrongdoer,
and the sense of insecurity of the free population amidst their far more
numerous dependants was expressed in the atrocious law that the murder
of a Roman in his own house should be avenged by the death of the whole
_familia_ that were sleeping beneath the roof at the moment of the
commission of the crime.[574]

The state itself owned slaves who were known as _servi publici_. Some
were in the service of temples or of colleges of priests. Others were at
the disposal of magistrates, such as the censors or aediles,[575] for
the minor duties of attendance and police. Their agency in contracts
was doubtless as useful to the state as that of private slaves was to
individuals. Such an agent (_actor publicus_) was kept by the treasury
for the acquisition of property,[576] which, as his _peculium_, fell
under the _dominium_ of the state.

We have seen that manumission in due form made a citizen of a slave. The
_libertini_, therefore, are not a third class in the state, and only
demand a separate treatment in so far as their grant of freedom was
conditioned by the performance of certain duties to their former masters,
and in so far as the lack of free birth (_ingenuitas_) entailed certain
political disabilities.

The relation of the _libertus_[577] to his former master, who now became
his _patronus_, was to some extent modelled on that of the ancient client
to his lord. The freedman owed his manumitter reverence and obedience
(_obsequium_);[578] he could not prosecute, or appear as a witness
against him, in the criminal courts,[579] and he required the permission
of the praetor to bring even a civil action against his former master or
that master’s near relatives.[580] The patron’s right of succession to
the freedman’s estate if he died intestate and without heirs,[581] if
it was not a family right, was justified by the fact that the capital
with which the freedman started life must have been generally the gift
of the master, whether it took the form of a _peculium_ or not. This
circumstance must have been also felt to justify manumission on the
condition of continuing to perform certain services to the _dominus_.
But the privilege of imposing such conditions was abused, and had to
be limited by the edict of a praetor Rutilius,[582] which practically
confined them to the performance of certain personal services
(_operae_). The fact that the freedman was still regarded as an appendage
of the _familia_ was most clearly shown by the criminal jurisdiction—even
extending to capital punishment—exercised over him by the head of the
family even at the close of the Republic.[583]

The political position of the _libertini_ was probably better at the
beginning than at the end of the Republic. Under the Servian _régime_
they were, with all other citizens, members of the tribes; whether they
were at first members of the centuries depends on the question whether
free birth was always a requisite for military service, and this is a
point on which evidence entirely fails us;[584] but when the _comitia
centuriata_ had ceased to be a military and become a purely political
institution, there is no reason to assume their exclusion. They would
have been members of the _comitia tributa_ and _concilium plebis_ from
the earliest institution of these two bodies. The freedmen (rarely
landowners and usually mechanics) belonged in the main to the four old
city tribes. This accident had become a legal prescription by the year
312 B.C. In that year the revolutionary census of App. Claudius, which
we shall describe elsewhere,[585] spread them over all the tribes,[586]
and probably, according to their census, over all the centuries. In 304
B.C. the old arrangement, which limited the freedman’s vote, was reverted
to.[587] The censors of 169 went further and restricted them all to a
single tribe.[588] The conflict required the intervention of law, and it
was probably the _lex Aemilia_ (of M. Aemilius Scaurus, consul in 115
B.C.) which re-established the old principle of restriction to the urban
tribes.[589] But the question of the freedman’s vote became a battle-cry
in the last century of the Republic. In 88 B.C. the democratic tribune
Sulpicius passed a law which gave the _libertinus_ the tribe of his
patron.[590] It was repealed by the optimates; but the second triumph
of the democrats in 84 B.C. again restored the law,[591] until Sulla’s
ascendency finally established the limitation to the four city tribes.

The freedmen were excused the burden, because not thought worthy of
the honour, of regular military service in the legions.[592] The same
prejudice did not apply to the fleet, and for this service _libertini_
were freely employed.[593] The lack of free birth was also a ground of
exclusion from the magistracy, and therefore from the Senate, to which
this was the stepping-stone.[594]

§ 2. _The Theory of the Constitution_

The Roman constitution had lost none of its complexity by growth. The
accretions of ages had changed a curious but comparatively simple type
of polity into a jumble of constitutional law and custom, through which
even the keen eye of the Roman jurist could not pierce, and which
even his capacity for fictitious interpretation and the invention of
compromises could not reduce to a system. The lack of logic, which is the
usual accompaniment of a conservatism not thorough-going enough to be
consistent, produced a machine the results of which appeared for a time
to be eminently satisfactory. It conquered the world, and succeeded for
a time in governing it with some show of decency and a fair measure of
success. Had the equilibrium been maintained in practice as in theory,
mixed constitutions would have had the most assured claim to the respect
and acceptance of the world. But as the knots which the jurist could not
untie were cut by the sword, and the constitution reverted to a type
far simpler even than that of its origin, we must assume a weakness in
the mixed system, which might not have rendered it inadequate as the
government of a city state or even of Italy, but certainly rendered
it incapable of imperial rule. The test was a severe one, and the
constitution which could not answer the strain need not be wholly
condemned. For empire is a mere excrescence on the life of a state, a
test neither of its goodness nor of its vitality. A pure treatment of
the Roman constitution will neglect, as far as possible, this abnormal
growth, and, although much of its structure was the result of war,[595]
will be able to show that its essential peculiarities were not the effect
of conquest.

The Roman state was still a limited sovereignty of the people; so
limited, indeed, that the people, i.e. the patricio-plebeian _populus
Romanus_, was dependent, not merely for the expression of its will, but
even for its _existence_, on the life of its supreme magistrates. In
the practice of the Republic down to its closing days, the cessation
of the consulate, by the non-election or the death of its occupants,
caused the suspension of the life of the state. The people could not meet
except under the shadow of the higher _imperium_ or _auspicia_—those of
lesser patrician magistrates were of no avail; for the praetor, though
technically a colleague of the consuls,[596] could not hold the consular
elections[597]—and the city was in a state of suspended animation until
the _auspicia_ in all their purity should be restored, were it but to a
single man. The auspices, meanwhile, have returned to the “fathers,”[598]
and it is they only who can restore them. The first fundamental element,
therefore, in the theory of the Roman constitution, however absurd it
may seem, is that ultimate sovereignty rests with the patrician members
of the Senate.[599] How this theory was put into practice, and what
modifications the practice had undergone since the time of the monarchy,
may be seen by examining the procedure consequent on a Republican
_interregnum_.

The conditions requisite for an _interregnum_ were the non-existence
of consuls, or magistrates with consular power, or a dictator. The
retirement of all the other so-called patrician magistrates, i.e.
_magistratus populi_, was another necessary preliminary, for the auspices
could not return to the _patres_ so long as they were held, whether as
_majora_ or _minora auspicia_,[600] by a patrician magistrate.[601]
Hence, when a sudden occasion arose for the appointment of an interrex,
it was the duty of the Senate to give notice to the patrician magistrates
and to request them to retire from office.[602] The plebeian magistrates
still remained in the exercise of their functions.

It was, in the later Republic, the Senate which took all further
necessary action. In the early Republic there was no possibility of its
being summoned, and the patrician senators met at their own discretion
to appoint the interrex. But after the tribune, who was still in office,
had gained the right of transacting business with the Senate, it was he
who put the question, and the Senate who suggested that the _patricii_
should meet for the purpose. From this time onwards the electors felt no
obligation to meet except on the suggestion of the Senate.[603]

The collegiate principle of the regal _interregnum_ and the use of the
lot[604] had both disappeared; the agreement of the patrician senators
took the form of the election (_creatio_)[605] of a single interrex
(_prodere interregem_). This magistrate nominated his successor, as the
consul nominated the dictator,[606] each succeeding interrex holding
office for five days. There was no limit to the number that might be
created, the interreges varying from the minimum of two to the known
maximum of fourteen;[607] but there must be at least two, the first
being incapable of holding the consular election, probably because
he was regarded as having received the _auspicia_ irregularly. The
qualifications for the interrex were, that he should be a Patrician[608]
and a senator, and the instances seem to show that he was invariably
chosen from the past holders of curule office.[609] The first interrex
was no doubt guided by the wishes of the Senate, or of the _patres_, in
the choice of his nominee, and the whole list may have been prepared
before his appointment. With the creation of the highest regular
patrician office, i.e. with the election of a single consul, the
_interregnum_ necessarily came to an end and the interrex retired.

The reappointment of a chief magistrate called the people into life
again; and, as a rule, it perpetuated itself by perpetuating the
magistracy. There was, indeed, one large section of the people which
had a continuity of existence as a corporation—this was the _concilium_
of the Plebs with its presidents, the tribunes. From the year 287 this
_concilium_ was an independent legislative sovereign, and nothing more
clearly marks the theoretical dualism of popular sovereignty at Rome than
the fact that one parliament could continue to exist while the other, the
_comitia_ in its various shapes, was dormant. The division of executive,
judicial, even of deliberative power, is not uncommon in governments
of the mixed type; the division of unlimited legislative authority is
rarer and nowhere so clearly marked as in Rome; for an act of parliament
did not require the co-operation of the two assemblies—the separate
_fiat_ of each had the force of law.[610] It is true that in practice
this fundamental dualism was not acutely felt, for the individual
elements of the Populus and the Plebs were to all intents and purposes
the same. We may emphasise the practical similarity and the theoretical
difference best by glancing at the two assemblies of the tribes. Except
in elective matters they differed hardly at all in the sphere of their
competence—each was a legislative and judicial assembly. But they were
under the presidency of magistrates of different kinds, and this caused a
slight difference in their constitution. When the tribunes of the Plebs
summoned the people by tribes, the members of the few patrician families
did not attend; when the consul or praetor summoned the people by tribes,
the Patricians could be present.[611] A fundamental distinction in theory
here produces little effect in practice.

While this dual sovereignty—harmless except for its incidental effect
of the preservation of the tribunate—was a result of the course taken
by the evolution of plebeian privileges, a far more serious consequence
was produced by what we noticed as the second leading idea in the Roman
constitution’s period of growth,[612] the weakening of the magistracy.
This weakening—partly the result of a struggle for freedom, partly
of accidental circumstances such as the distractions of war—from the
first assumed a form which prevented Rome from ever expanding into a
democracy. The early Greek states adopted the system of weakening the
sole magistracy, first by dividing its functions amongst several holders,
and then, when this was not sufficient, by deliberately taking powers
from them and giving them to carefully organised popular bodies. In Rome
the principle of division was not wholly unknown; thus the censorship
and praetorship take over some of the functions of the consulate, but
the principle of wholesale transference was entirely absent; even the
usurpation of capital jurisdiction by the people was modified by the
condition that they could meet only on the summons of a magistrate. The
principle of weakening adopted at Rome was that of the increase of the
number of magistrates, without any essential alteration of the character
of the magistracy. The increase was effected partly by a consistent
application of the principle of colleagueship, partly by the setting up
of new powers in conflict with the old. The result was chaos. In the
developed constitution there were twenty annual magistrates—ten tribunes,
two consuls, eight praetors—each armed with the power of passing valid
acts of parliament, and of vetoing the resolutions of his colleagues and
inferiors. It is true that there was a legal subordination amongst them;
the consul was inferior to the tribune, the praetor to the consul; and
the rigorous application of law would have reduced the Roman constitution
to an oligarchy of ten. As a matter of fact, the tribunate was too early
enlisted on the side of the nobility to think of pressing its powers;
dissension reigned within the college, and the history of the collective
magistracy was one of perpetual conflict and therefore of weakness.
In this weakness the people shared, for they were wholly dependent
on the magistracy. In shaking the authority of their representatives
they had shaken their own; and certain radical defects in the popular
organisation, which we shall discuss when we consider the assemblies
more in detail, added to their incapacity to rule. Since the guidance of
magistrates and of people was equally impossible, and central government
must reside somewhere, its fitting place was not unnaturally sought in
the single experienced, permanent, and deliberative body in the state,
the Senate.[613] The assumption of the reins of government by a power,
which as an independent authority was not contemplated in the original
constitution, necessarily gave rise to a body of constitutional custom
by the side of the older constitutional law. The applications of this
new code can only be estimated by a more detailed treatment of the three
factors of government—the magistracy, the people, and the Senate.

CHAPTER IV

THE MAGISTRACY

§ 1. _General Characteristics of the Magistracy_

The collective powers of the magistrate had, as we saw, been summed up in
the word _imperium_; they had, perhaps, also been expressed by the vaguer
term _potestas_. When, in course of time, magistracies were created which
did not possess the _imperium_, _potestas_ was necessarily the only word
which expressed the _generic_ power of the magistracy; _imperium_ became
a special _species_ of this power. Thus one could speak of the _consulare
imperium_ or of the _consularis potestas_, but only of the _tribunicia
potestas_.[614]

It is difficult to treat collectively of the special manifestations
of this authority; for the magistracies were graduated by differences
of power. To avoid confusion and repetition it will be best, in this
general sketch, to give a complete list of magisterial powers, and to
point out in each case where they are accorded to, or withheld from, the
particular occupants of office. Magisterial powers may be divided into
(i.) administrative, (ii.) those exercised in connexion with the people,
(iii.) those exercised in connexion with the Senate; and (iv.) certain
general powers which underlie all these spheres of activity—the right
of interpreting the will of the gods through auspices, and the right of
enforcing decrees.

(i.) _Administrative powers._—The sphere of administrative activity had
from the first days of the Republic been divided into the two departments
of command at home (_domi_) and abroad (_militiae_), the dividing line
between the two being sometimes the _pomerium_, sometimes the limit
marked by the first milestone outside the city.[615]

The home administration can be adequately considered only when we deal
with the separate magistracies. But the common form in which it asserted
itself may be considered here. This was the right of issuing commands in
the form of edicts (_jus edicendi_), applicable to the special branches
of administration under the control of the magistrates, from the quaestor
to the consul.[616] The edicts of all the magistrates corresponded to one
another in their general form; they contained commands, prohibitions,
and advice. They were all at an early period issued in writing, and the
difference between them was simply that while some, such as those of the
consuls and quaestors, were occasional and, when the necessity for them
had passed, withdrawn, others, such as those of the censors, praetors,
curule aediles and provincial governors, were continuous (_perpetua_),
as being called forth by ever-present necessities, and were therefore
transmitted by magistrates to their successors (_tralaticia_). Prominent
in their continuity were those of the censors and praetors; while the one
created a code of Roman morality, the other developed a system of legal
procedure.

The administrative duties abroad belonged exclusively to the magistrates
with _imperium_, i.e. in the ordinary course of things to the consuls
and praetors, in exceptional circumstances to the dictator.[617] The
treatment of provincial administration may be deferred until we deal with
the provinces and the pro-magistracy which imperial government created.
Here we may appropriately notice the exceptional powers which military
command gave to the magistrate over the persons and services of the
burgesses, and the honours which it conferred on its possessor.

The first right conferred by military command (_imperium_ in the
narrower sense[618]) was that of the formation of an army by enforced
conscription (_dilectus_). It was exercised, however, only by the
magistrate in supreme command, that is, by the consuls or the dictator,
not by the praetor. It was a purely magisterial right, and in the levy
of the regular consular army of four legions the consuls were probably
independent of any guidance. Custom eventually dictated that, when
exceptional forces were needed, the permission for the raising of these
should come from the Senate.[619] Within this permission the consuls
acted at their own discretion. They summoned all the _juniores_ to meet
them, formerly on the Capitol, later in the Campus Martius; and under
their inspection the military tribunes selected whom they would and bound
the conscripts to obedience by a military oath (_sacramentum_).[620]
Although this oath was in form one of personal allegiance to special
commanders, was tendered to both colleagues[621] and had to be renewed
with every change of command,[622] its primary import was to give the
soldier the right of using weapons against enemies, and to change what
would have been acts of mere brigandage (_latrocinium_) into those of
legitimate service (_legitima militia_).[623] A secondary association
with the oath may in early times have been that he who broke it was
_sacer_, and that the vengeance of the gods could be satisfied by summary
execution inflicted by the general on the offender.[624] The power of
inflicting capital punishment for military offences did not, however,
need this religious sanction; it was a consequence of the _coercitio_ of
the _imperator_, when outside the sphere of the _provocatio_[625] and
unchecked by the veto of a colleague.[626] A further right preliminary
to the conduct of war was the nomination of the officers of the
army—the military tribunes, centurions, decurions, and commanders of
every branch. Appointment to all these posts, from the highest to the
lowest, was originally in the hands of the consuls; but the tendency of
the Republic was to remove selection to the higher military commands
from the discretion of the magistrate. In 362 B.C. the creation of
six of the military tribunes of the standing army of four legions was
transferred to the people in the _comitia tributa_;[627] by the year
207 all of the twenty-four had been thus elected,[628] and the standing
military tribunate had become one of the regular minor magistracies of
the state.[629] The tribunes for other legions that might be raised were
still nominated by the consuls,[630] and sometimes the people gave up
its right of election in their favour.[631] In raising supplies most
magistrates were dependent on the Senate; but the consul’s original
control of the _aerarium_ survived in the right he possessed of ordering
the quaestor to pay him any money he required for military expenses.[632]

When the preparations for war were completed and the consuls took the
field, their discretionary authority in the conduct of the campaign,
in finance and in jurisdiction, was almost absolute. The first power
was hampered only by the condition that they could not wage war against
a state which stood in any degree of alliance with Rome without the
consent of the people; the second received some slight limitation
from the appointment of military quaestors in 421;[633] the third was
theoretically unlimited throughout the whole history of the Republic, but
received some slight modification from the growing sense of the sanctity
of the life of a Roman citizen, which made the generals during the last
century of the Republic more chary of pronouncing capital sentences
upon their officers and soldiers.[634] It is important to remember that
this absolute jurisdiction _militiae_ was not in the least confined
to the army; every Roman citizen within the sphere of the general’s
administration, and every provincial, when these spheres had developed
into standing provinces, were equally subjected to martial law.[635] The
provincial in fact was often in better case than the Roman sojourning in
the provinces. He could sometimes appeal to the liberties granted to his
town by charter; but the Roman found that his palladia—the _provocatio_
and the _intercessio_—had vanished in this sphere.[636]

A victory over the foe gave the general the right to claim two
further privileges—the one a titular designation, the other a popular
manifestation of success—which were strictly regulated by constitutional
law. Every holder of the _imperium_ was necessarily an _imperator_; but
from a very early period of the Republic it was considered improper for
the possessor of the very limited _imperium_ within the walls to use this
title. It was reserved for the general in command of an army; _imperator_
is both the official and the familiar title by which he was addressed by
his soldiers. But, even under these circumstances, it was not employed
by the general himself as a part of his official designation. For this
a victory was requisite; the soldiers after the battle proclaimed him
conqueror by shouting the familiar name; from this time he was supposed
to have it impressed on him in a peculiar manner and could bear it
in his list of titles.[637] Custom decreed that the honour should be
assumed only in consequence of a great and decisive victory;[638] but
the ambition and rivalry of provincial governors finally caused the most
trifling successes to be commemorated in this way.

The salutation was the usual preliminary to a triumph—the solemn
procession of the general through the city to the Capitol at the head of
his victorious army. As the title _imperator_ could be conferred only on
a commander-in-chief, and was inconsistent with delegated authority, the
triumph was necessarily confined to the magistrates with the capacity for
supreme command—the dictator, consul and praetor,[639] and to the one
of these who at the moment of victory was in highest authority. Thus the
dictator usually excluded the consul,[640] the consul the praetor; and
when two consuls were in command, the right resided with the one who had
the _imperium_ and the _auspicia_ on the day of the victory.[641] The
same rule held when the honour was granted to pro-magistrates; here too
independent command was the necessary condition of a triumph.

Other qualifications were fixed by custom. The return of the victorious
army was originally necessary—a rule which rendered the most deserving
general, who had handed over his forces to a successor, incapable of
triumphing,[642] and which, with the growth of standing armies, had to
be abandoned for the rule that the province must be reduced to a state
of peace (_provincia pacata_).[643] The war must be a _justum bellum_,
not the mere crushing a revolt of citizens or slaves;[644] and finally,
the custom was fixed that it must be a war, the magnitude of which was
attested by the fall of 5000 foes.[645]

The right to triumph was one entirely at the discretion of the general;
and as long as he chose the Alban Mount as the scene of his military
pageant, no power could hinder him.[646] It was only when he wished to
enter the city of Rome for the more imposing procession to the Capitol
that he found difficulties in his way. The triumph implied the display
of the full military _imperium_ within the city;[647] and, though
instances are not lacking of magistrates who on their own responsibility
successfully asserted this right,[648] the custom became fixed that
permission for this display should be accorded by the state. Originally
it may have been granted by the people,[649] but the permission for
the exercise of the full _imperium_ for the single day soon required
the consent of the Senate, all the more necessary as its control of
finance enabled it to grant or refuse the money which paid the expenses
of the triumph.[650] The case was otherwise with the pro-magistrate.
The proconsul had only the _imperium militiae_, and none within the
walls, and it was impossible, therefore, for the Senate to recognise
the display of a power which did not exist. In this case a special
dispensation from the laws was necessary, which could originally be
granted only by the people. The Senate took the initiative by asking the
tribunes to introduce a _plebiscitum_ sanctioning the arrangement.[651]
The continuity of the _imperium_ from magistracy to pro-magistracy was
originally a condition of the triumph. Thus it was refused to the elder
Scipio Africanus who had been elected proconsul without having exercised
any previous _imperium_.[652] By the close of the Republic both these
scruples had been set aside. The triumph was decreed to proconsuls
by the Senate, and without regard to their having held any previous
_imperium_.[653]

(ii.) _Powers exercised in connexion with the people._—The dealings
which the magistrate had with the assembled people were of two kinds;
he might summon them for the purpose of imparting information: in this
case the meeting was called a _contio_;[654] or he might convene them
for the purpose of passing decrees binding on the community: such an
assembly assumed one of the various forms of the _comitia_. The first
power (_contionem habere_) was often preliminary to the exercise of the
second (_cum populo agere_); for a _contio_ or a series of _contiones_
generally preceded the formal meetings of the assemblies at which laws
or _plebiscita_ were passed,[655] and was in fact an indispensable
preliminary, since, in the case of legislation, it was the chief
opportunity for recommendations or criticisms of a bill, and, in the case
of popular jurisdiction, was the only means by which the people could
form an estimate of the evidence. The magisterial _contio_ was, in fact,
the great vehicle for constitutional agitation and, as such, the most
democratic institution in Rome.

But the use of the _contio_ was not confined to the preliminaries of
legislation. It was the form in which the people were summoned to witness
any public act,[656] and to listen to the magistrate’s commands when
these were expressed in the form of verbal edicts.[657] The essential
feature of such an assembly was that the people were invited to meet a
magistrate and to listen to his views; the masses were mere auditors; and
the fact that this was no chance gathering was further emphasised by the
solemnity of the proceedings—the formal summons, the opening prayer,[658]
and the elevation of the magistrate on the tribunal. We cannot say with
certainty how far this right of holding a _contio_ extended. It was
certainly possessed by the consuls, praetors, censors, and tribunes, and
probably by all the magistrates down to the quaestor.[659] The conflict
of magisterial authority was felt here as in other departments, and the
higher magistrate could summon to himself the _contio_ convoked by an
inferior.[660]

The Roman constitution recognised no right of public meeting; a gathering
of the citizens by a citizen might be treated as a breach of the peace,
or might be summarily visited by the _coercitio_ of a magistrate. But the
increase of the magistrates, and the corresponding divergence of their
views, supplied a partial substitute for this popular self-repression.
It was open to any magistrate to introduce a citizen to the _contio_,
and give him a right to speak (_producere in contionem_, _dare
contionem_);[661] it was equally open to a colleague or superior to
veto this permission;[662] but custom must have made such a use of the
_intercessio_ very infrequent. The right of granting a _contio_ gave a
limited power of debate on legislative matters to distinguished private
individuals; but this was not its only use. It was the sole means by
which political leaders, who might happen to be in a private station—as
Pompeius after his return from the East, or Cicero after his recall from
exile—could express their views;[663] it was also a convenient mode in
which a magistrate might justify a line of conduct. We find a foreign
king and a public informer thus produced to influence the popular mind.
The _jus contionis dandae_ meant an increase in magisterial power, and
was no true concession to democracy; the demagogue in opposition, who was
not a magistrate or useful to a magistrate, had no opportunity of making
his voice heard in Rome.

The right of eliciting binding resolutions from the people when assembled
in their _comitia_ (_jus cum populo agendi_) always remained an inherent
attribute of the _imperium_; as such it belonged, under ordinary
circumstances, to the consul and praetor; under exceptional conditions,
to the dictator, interrex, and consular tribunes. It was also possessed
by one at least of the occasional delegates of the highest magistrates,
the master of the horse.[664] By these magistrates the _comitia_ might
be assembled in any form—by curies, by centuries, or by tribes. None of
the lower magistrates possessed in their own right the power to summon
and preside over the assembly; but the extension of the _provocatio_
and the consequent growth of popular jurisdiction rendered it necessary
that the lower magistrates with judicial powers should meet the people.
Thus the curule aediles defended their sentences before the _comitia
tributa_;[665] the delegates of the consular criminal jurisdiction, the
_quaestores parricidii_, and _duumviri perduellionis_ brought their
judgments before the _comitia_ of the centuries.[666] No plebeian
magistrate had the _jus agendi cum populo_; hence when the tribune,
in the exercise of his jurisdiction, wished to obey the command of
the Twelve Tables, which confined the hearing of capital cases to the
_comitia_ of the centuries, he had to ask a patrician magistrate—in
this case the praetor—to call a meeting for him by a given day (_diem a
praetore petere_).[667] When the praetor had named a day (_diem dixit_)
the tribune then appeared in the assembly as the accuser.[668]

The right of eliciting formal resolutions from the Plebs (_jus cum plebe
agendi_) belonged exclusively to the plebeian magistrates. The tribunes
alone had the presidency of the _concilium_, but here again the growth
of popular jurisdiction rendered it necessary that the plebeian aediles
should defend their sentences before the Plebs.[669]

(iii.) _Powers exercised in connexion with the Senate._—The right of
bringing matters before the Senate (_jus cum patribus agendi, consulendi
senatus, referendi ad senatum_) is one that runs parallel to the right
of transacting business with the Populus, and, as such, it is attributed
by Cicero[670] to the same magistrates—to the consuls and praetors, the
dictator, magister equitum, and interrex. It of necessity attached to the
consular tribunes of early times, and was one of the attributes of the
_praefectus urbi_.[671]

This right necessarily did not attach originally to the tribunes of the
Plebs, for they were first the outcome of a revolution, and then for
centuries the presidents of a corporation independent of the people.
But, after the _lex Hortensia_ had made the _concilium plebis_ one of
the legislative organs of the community, it would have been dangerous to
senatorial government to deny the president of this assembly the right of
consulting the Senate.[672] The admission of the tribunes into the circle
of the magistrates with the _jus consulendi_ was one of the conditions of
the Senate’s permanent control over initiative in legislation.

(iv.) _General powers: the auspicia and the coercitio._—We have now to
consider certain magisterial powers which cannot be regarded as forming
a separate department, since they are coextensive with the whole sphere
of official authority. The first that we shall treat, the taking of the
auspices, was as much a duty as a right. The observance of the _auspicia
publica_ is not merely an act that the magistrate may perform, but
one that he must perform if his powers are to be duly exercised. The
_imperium_ and the _auspicia_ are indissolubly connected;[673] they are
the divine and human side of the same power, and every important act of
human activity should be prefaced by an appeal for divine assistance.
We have already explained that the only auspices which are properly
connected with the magistracy were those known as _impetrativa_, and
that the looking for these—the gift of _spectio_—was always a peculiar
attribute of the patrician magistracy,[674] and was, therefore, not
possessed by the tribunes and aediles of the Plebs. With respect to the
other category of auspices—the _oblativa_—not only are all magistrates on
a level with one another, but they are all below the level of the meanest
citizen. The citizen, if he is a devout man, may suspend the business
he has in hand, if an evil sign appears. The magistrate is bound to do
so, if the sign is by common consent evil, or has been pronounced such
by the college of pontiffs or by the Sibylline books. Roman theology
recognised five categories of auspices; four of these belong to the class
_impetrativa_, one to the class _oblativa_.[675] The latter, as being
the simpler and the one common to all the magistrates, may be considered
first.

(1) _Dirae._—These were a heterogeneous collection of signs of ill omen.
Anything that broke the silence (_silentium_)[676] when the auspices
were being taken was of this character, such as the fall of anything
in a temple (_caducum auspicium_),[677] or a sudden noise, such as the
squeak of a mouse.[678] Such too was any sudden event that seemed to warn
back from a course once taken—the flight of ravens towards the walker
or round his head, and the stumbling of his foot on the threshold;[679]
the struggle of birds in the air ending in the defeat of those that had
flown from the direction of the general’s camp;[680] the seizing of the
boundary stones of a newly laid-out city by wolves,[681] and countless
others. A peculiarly dreadful omen was a fit of epilepsy, called, from
its power of suspending the assemblies, _morbus comitialis_. Such signs,
to be effective hindrances, must have an obvious connexion in time and
place with the act they impede, and must, besides, be noticed by the
agent. Hence a flash of lightning was the most effective of _auspicia
oblativa_. Less potent signs could be ignored by veiling the senses. The
augur, who is asked by the officiating magistrate if there is silence,
does not look round him, but straightway answers “yes”;[682] in sacrifice
flutes are blown to drown all other sounds,[683] and the general bent
on fighting takes the precaution of travelling in a closed litter.[684]
If another person forced the omen on the magistrate’s notice, he was
bound to attend to it. This announcement (_nuntiatio_ or _obnuntiatio_)
we shall speak of elsewhere; it belongs to the history of the conflict
between the authorities of the different magistrates.

The four other classes of omens belong to the category of _auspicia
impetrativa_. These were—

(2) Signs from the flight of birds (_signa ex avibus_), the oldest form
of augural discipline, as the very words _augures_ and _auspicium_
prove, and one that in the early Republic was used in all solemn acts
of state, such as the summons of the _comitia_ or the appointment of a
dictator.[685]

(3) Closely akin to this was the augury from the motions and sounds of
four-footed beasts (_signa ex quadrupedibus_); but by the close of the
Republic these forms of divination, which required study and research,
had given place to the two remaining classes, which were more easily
interpreted, or more readily manipulated for political purposes. These
were the _coelestia auspicia_ and the _auspicia ex tripudiis_.[686]

(4) Chief of the heavenly signs (_celestia auspicia_), and the surest
expression of Jupiter’s will, were thunder and lightning. Thunder seems
sometimes to have been regarded as a wholly evil omen;[687] but the
course taken by the lightning determined its significance—if on the
watcher’s left, it was lucky; if on the right, unlucky.[688]

(5) The _auspicia ex tripudiis_ were signs given by the feeding of tame
birds (_aves internuntii Jovis_)—generally domestic fowls. If, while they
ate, something fell from their mouths (_tripudium solistimum_), still
more if the falling object made a ringing noise (_sonivium_), the sign
was taken as an assent of the gods to the business in hand. This mode
of augury was convenient for two reasons. It was always available; the
birds could be taken about in cages under the custody of their keepers
and interpreters of their acts, the _pullarii_. Hence it was the mode of
augury specially favoured in the camp, and the sacred chickens were the
invariable attendants of a Roman army. Again, the favourable sign might
be so easily gained. The irate Roman admiral, who threw his chickens that
would not eat into the sea, lacked the patience to wring the wished-for
omen from them by protracted hunger, or by feeding them with porridge
which they could not swallow with sufficient rapidity.[689]

The auspices were at first an accompaniment of the _imperium_; later,
when they became an attribute of the whole patrician magistracy, their
importance varied with the _potestas_ of the magistrate. Officials
with _imperium_ were said to possess _maxima auspicia_, and the
pro-magistrates were naturally included in this list, for the auspices
were as necessary in war as in peace; those of the censors, on account
of the importance of this office, were reckoned _maxima_, although
the occasions on which they were taken were so unique that they
were not brought into the same category as those of the consuls and
praetors; those of the lower magistrates, aediles and quaestors, were
called _minora_.[690] This was little more than a formal difference,
had reference merely to the importance of the respective spheres of
operation, for which observations were made, and did not determine the
kinds of auspices that might be taken by each magistrate.

The occasions of the magistrate’s auspication embraced every public act
of any importance. In three cases above all was it regarded as essential;
these were the nomination of a magistrate, the holding of the _comitia_,
and the departure of a general for war. The chief rule of observance was
that the auspices must be taken on the same day and in the same place
in which the act was to be performed. The fact that the Roman civil day
(_dies civilis_) began at midnight[691] was convenient for procuring the
requisite _silentium_; and sometimes, to prevent any flaw (_vitium_),
the act itself was performed before daybreak. Thus the consul, when he
nominates a dictator, “rises in the stillness of the night”[692] to do
so. The ceremonial for all public auspication[693] was as follows. A
sacred enclosure (_templum_) was marked out on the required spot—within
or without the _pomerium_, according to the purpose in view—within
which the magistrate pitched his tent (_tabernaculum capere_),[694]
which had one side open for observation. After midnight he rose, and,
seated on the floor, performed the rite. Its validity depended on his
personal observation alone; but he might invite skilled assistants to
his aid.[695] The consequence of inability to get a favourable omen was
necessarily the non-performance of the contemplated act; the only course
open was to wait for another day, and to seek the auspices over again
(_repetere auspicia_).[696] If the act had been performed in spite of ill
omens, or if subsequent reflection showed a flaw in the ceremonial, the
act was said to be subject to a _vitium_ which rendered it invalid; the
law passed did not hold good, and the magistrate thus faultily elected
(_vitio creatus_) had to resign his functions.[697] In the case of the
election of the consuls being thus vitiated the consequences might be
serious; for if the flaw was discovered after their entrance on office,
a renewal of the auspices (_renovatio auspiciorum_)[698] could only be
effected through an _interregnum_. It was in this connexion that the
power of the augurs came into play, for they were the interpreters of
the heaven-sent signs. It was no wonder that membership of the augural
college was the highest ambition of the Roman statesman, when its decree
could upset a law, stave off a capital charge, or force a consul to
abdicate. It is true that the augurs could give their advice only on the
request of a magistrate or of the Senate; but, as a measure or election
not favoured by the government would readily be challenged in this way,
the decision as to the future of the state often rested wholly with the
college of augurs. Their power of interpretation extended to the far more
frequent _auspicia oblativa_, and in reporting these even the initiative
might, as we shall see, be taken by an augur.

Since the _auspicia publica_ were personal signs vouchsafed to
individuals, a collision between the auspices of colleagues engaged in
the same business was not impossible. What the result of such a collision
was in the case of magistrates engaged _domi_ is unknown.[699] In the
field the effective auspices were in the hands of the consul whose
turn for command had come,[700] or, in case of joint command, in those
of the higher magistrate; thus the auspices of the consul extinguished
those of the praetor.[701] In the later Republic the difficulty scarcely
existed, as joint command of two magistrates with _imperium_ became very
infrequent, and the proconsul or propraetor took the auspices alone.

The auspices were the mode in which the god’s will was revealed to the
magistrate. The other universal power—the _coercitio_—was the mode in
which the magistrate’s will was forced on man. It was the method in which
he compelled obedience to his commands, or secured the performance of
state obligations which it was his duty to enforce. It was, therefore,
in touch with criminal jurisdiction, but differed from it in two ways.
Firstly, _coercitio_ was not directed to the enforcement of the permanent
obligations of man to his fellow man, which is the object of the criminal
law, but rather to the repression of exceptional acts directed against
the state as a whole; and secondly, the means of _coercitio_ actually
available could be employed by the magistrate on his own responsibility,
while the power of jurisdiction he shared with the people. This second
difference, however, was unknown to constitutional theory. The magistrate
might avail himself of any means of coercion against a harmful or
disobedient citizen—he might employ fines, bonds, and scourging;[702]
but the fine, beyond a certain limit, and the scourging gave rise to the
_provocatio_; in this case magisterial coercion led on to jurisdiction.

The objects of magisterial _coercitio_ were by no means always private
citizens. It could be directed against senators and _judices_, and could
be exercised by any superior over any inferior magistrate, to compel his
respect or to force him to a performance of his duties.

The severest mode of coercion—the infliction of the death penalty—was,
as we saw, originally inherent in the _imperium_, but was rendered
impossible by two Valerian laws of 509 and 449 B.C.[703] A third _lex
Valeria_ of 300 B.C. prohibited the execution or scourging of one who
had appealed; but the weakness of former enactments was repeated in this
law; it declared the magistrate’s contravention of it to be _improbe
factum_.[704] An effective sanction seems first to have been supplied by
one of the three Porcian laws;[705] certainly at the end of the Republic
a violation of the _provocatio_ entailed a capital penalty on the
magistrate.

With respect to the capital jurisdiction of the tribunes, we have
seen how their tacit recognition of the appeal gave rise to this
jurisdiction.[706] But in theory the coercion of the tribune, when
used in defence of the sanctity of his own person, was not subject to
appeal.[707] Here the old religious penalties remained in force, and a
period as late as the year 131 B.C. witnessed the spectacle of a tribune
dragging a censor, who had degraded him, to the Tarpeian rock with intent
to hurl him down—a fate from which he was saved only by the veto of the
tribune’s colleagues.[708]

Scourging, which is found in the early Republic as a punishment employed
in the military levy,[709] was practically abolished as a mode of
_coercitio_ by the third _lex Valeria_ of 300 B.C.[710] and the _leges
Porciae_, which submitted the threat of such punishment to appeal, the
latter laws imposing a heavy penalty on the magistrate who inflicted it.

Imprisonment (_abductio in carcerem, in vincula_), although not
recognised as a penalty in Roman law, plays a double part in the
_coercitio_. It was one of the modes by which the magistrates defended
their dignity and secured obedience, not merely from private citizens,
but from lower magistrates and senators; and it was adopted as a
precautionary measure to secure the appearance on trial of one whom
they accused. The use of this severe measure against magistrates by
any power but the tribunate is rare;[711] but it plays a great part
in the tribunician annals, and the temporary imprisonment of a consul
became a familiar feature of party strife during the closing years of
the Republic.[712] It was a summary method of silencing the opposition
of a too zealous optimate, and the veto of the tribune’s colleague was
the only means of releasing the head of the state.[713] Preventive
imprisonment for the purpose of securing the appearance of an accused at
trial was rare at Rome. The custom of giving sureties or bail (_vades,
vadimonium_) was early recognised;[714] but it rested entirely with the
magistrate whether he should accept such a security.[715]

The imposition of a fine (_multa_) was the most common mode of enforcing
obedience, and was possessed by all the magistrates with the possible
exception of the quaestor.[716] As early as 454 B.C. the power of fining
(_jus multae dictionis_), which had hitherto belonged to the consuls
alone, was conferred “on all magistrates”—including, therefore, the
tribunes and plebeian aediles—by a _lex Aternia Tarpeia_ passed in the
assembly of the centuries.[717] The _lex Menenia Sextia_ (452 B.C.)
fixed the highest fine that could be imposed by a magistrate on his own
authority (_multa suprema_) at two sheep or thirty oxen[718]—the former
the limit for the poor man, the latter for the rich. After coined money,
or at least metal by weight, had come into vogue during the decemviral
period, a _lex Julia Papiria_ (_de multarum aestimatione_) of 430
B.C. fixed 3000 libral asses as the extreme amount that a magistrate
might impose.[719] The infliction of a fine larger than this _multa
suprema_ subjected the official who pronounced it to an appeal to the
people.[720] The _provocatio_ against _multae_ went before the _comitia_
or the _concilium_ of the tribes according as the fines were imposed
by patrician or plebeian magistrates, and we shall see how this appeal
brought the aediles into contact with these two assemblies.[721] Certain
laws continued to fix an absolute limit even to fines submitted to the
judgment of the people. They were generally limited to less than half of
the property of the accused.[722]

But the tribunes’ power of imposing money penalties extended far
beyond the limits of that of the other magistrates. The power of
confiscating all the goods of an individual by consecrating them to a god
(_consecratio bonorum_), a relic, like the execution from the Tarpeian
rock, of the old religious jurisdiction and as little subject to the
appeal, had been occasionally put in force by them in extreme cases,[723]
and like other vanished relics of antiquity was revived during the party
struggles of the close of the Republic.

Another mode of coercion, specially used against magistrates and the
official class, was the seizing of articles of their property as pledges
(_pignoris capio_).[724] It was possessed by all the magistrates who
had the _coercitio_, and was employed rather as a punishment than as a
security for good behaviour. Hence the pledges were often destroyed,[725]
and we find a consul seeking satisfaction for his outraged dignity in
breaking up the curule chair of the praetor who would not rise to greet
him as he passed by.[726]

Although, after the _provocatio_ had limited the right of inflicting
death and scourging, the means of _coercitio_ were much the same for
every magistrate, a formal difference in its mode of exercise existed
between the higher and lower magistrates, and between the magistrates
with _imperium_ and the tribunes. The consuls and other magistrates
with _imperium_ had the right of summoning delinquents before their
tribunal (_vocatio_) as well as of summarily arresting them in person
(_prensio_).[727] The quaestors and lower officials had neither of these
rights; and the theory of the tribune’s being an exceptional magistrate
who should render assistance in person[728] was so far preserved that
he had only the right of arrest.[729] We sometimes meet with tribunes
who carried out their mandates with their own hands, but their presence
alone was sufficient for the _prensio_ to be effective; in early times
they used their aediles for the act of violence, in later times their
_viatores_.[730] By the close of the Republic the distinction was
obliterated, and the tribunes, without formal right, summoned individuals
before them.[731]

A mere enumeration of the powers of the Roman magistracy throws little
light on the working of the civic constitution. The question which we
shall now consider—the conflict of powers—is from this point of view more
instructive if only because it shows why Rome could not be governed by
her magistrates.

The first ground of conflict was religious and arose from a use, or
rather misuse, of the auspices, which we have hitherto refrained from
discussing because it is only indirectly connected with the _jus
auspiciorum_. It arose from a power possessed not by the magistrate
only but by every Roman citizen. It was the duty of any one who was
the witness of an evil omen (e.g. one of the _dirae_ belonging to the
class of _auspicia oblativa_) to give notice of this occurrence to any
magistrate about to embark on an important undertaking. The most frequent
occasion on which such _obnuntiatio_[732] was employed was the holding of
the _comitia_. The respect paid to this announcement by the magistrate
guiding the proceedings naturally depended on the position which the
announcer held in the state. The notice of a private and unknown citizen
might be received with suspicion; that given by an augur, who actually
waited by the _comitia_ to watch for such signs,[733] or by another
magistrate, would usually be respected. But, while the _obnuntiatio_ of
the augur, the plebeian magistrate, and the private citizen depended
on chance, that of the patrician magistrate could be the result of
design. Observation of the heavens was, as we saw, the favourite form of
_spectio_ of the urban magistrate, and the belief was strongly held that,
if he asked a sign, the sign would come. The lightning which appeared
might be a lucky or unlucky omen for the magistrate himself; but, whether
it appeared on the left or right, it was, as an _auspicium oblativum_,
unfavourable to the holding of the _comitia_.[734] A patrician magistrate
had, therefore, only to give out that “he would observe the heavens” (_se
servaturum de coelo_) to suspend all meetings of the _comitia_ and of
the _concilium_.[735] Hence the edict by which the consuls summoned the
_comitia centuriata_ contained the words “ne quis magistratus minor de
coelo servasse velit.”[736] The patrician _obnuntiatio_ was a powerful
weapon in politics, the counterpoise to the plebeian _intercessio_.

The uncertainty respecting the necessity for observing most of these
religious messages called for legislation; and about the year 153 B.C.
two laws, the _lex Aelia_ and the _lex Fufia_, were passed which,
amongst other comitial regulations,[737] professed to give rules for
the _obnuntiatio_.[738] The import of these rules is quite uncertain,
but they seem to have recognised the right of the magistrate to watch
the skies to the detriment of public business, and to have attempted
to define the value of the announcement made by plebeian magistrates,
augurs, and perhaps even by private individuals. The scandalous use made
of the auspices by the consul Bibulus in the year 59 B.C. was a shock to
the national conscience, and the ineffectiveness of his procedure gave
courage to the enemy. In the next year the tribune P. Clodius abrogated
at least that portion of the law which bolstered up the misuse of the
_spectio_; the _obnuntiatio_ was frequently employed as a political
engine after this date, but its authors are tribunes and augurs,[739]
which shows that it was in these cases based on the professed chance
observation of _auspicia oblativa_.

The other modes of conflict were based on powers inherent in the
magistracy; these were the right of prohibition possessed by the higher
magistrates over the lower, and the right of veto possessed by superiors
over inferiors or by colleagues with equal powers over one another.

The right of prohibition was an outcome of _major potestas_ and was
possessed by all higher over all lower magistrates. The tribune had it
against all officials except the dictator; the consul against the praetor
and against all magistrates with the exception of the dictator and the
tribune. The magistrate’s right to forbid differed from the magistrate’s
intercession in that the latter was levelled against a completed act and
_rendered it invalid_; the former was merely a prohibition based on some
power which the superior magistrate had in reserve; this power was the
coercitio, the use of which was threatened if the command was disobeyed;
hence, if the _coercitio_ was not effectively put forward, _the act which
contravened the command was valid_.[740]

The scope of the exercise of this power was conditioned by circumstances;
most frequently the prohibition was directed against certain specific
acts. The intercourse of a lower magistrate with the people, which had
not the approval of his superior, might be hampered by this means;
thus the higher magistrate had the right _avocare contionem_ from the
lower.[741] The tribune possessed it in a supreme degree, and it was a
grave infringement of his majesty when any other official called away
a portion of the people whom he was addressing.[742] The consul might
hinder the praetor from introducing a _rogatio_,[743] and to guard
against the possibility of the _obnuntiatio_ when he himself was holding
the _comitia_ consistently forbade him to consult the heavens on that
day.[744] Other more glaring misuses of magisterial power were hindered
in this way, such as the attempt to triumph without the consent of
Senate or people,[745] or the effort to prolong a magistracy beyond its
appointed tenure.[746]

But the prohibition might, under special circumstances, be far more
sweeping than this; it might extend to the suspension of all the
functions of a magistrate, or even to the enforced cessation of almost
all the active life of the state.

A higher magistrate, although he could not take away office from an
inferior or even force him to abdicate, could visit a misuse of his
functions by prohibiting all further action on his part. This power,
practically amounting to a suspension from office, is found twice in
our annals directed by the consul against the praetor—in one case for a
breach of respect, in the other for revolutionary proceedings.[747] Nor
was the power confined to Rome. The provincial governor had a similar
capacity for dismissing officials, who disgraced his administration, from
the country under his control.[748]

A far more comprehensive act was the edict of a magistrate with _major
potestas_ that all lower magistrates should suspend the exercise of
their functions. Such a cessation of public business was known as
_justitium_, a name derived from the suspension of that department
of business which was the most constant sign of the active life of
the state, the courts of law (_juris statio_). The decree was usually
pronounced by the highest magistrate present in Rome who possessed the
_imperium_, by the dictator,[749] or by the consuls[750]; and, as a
rule, the _justitium_ was proposed on a vote of the Senate[751] and to
meet certain definite contingencies. The most usual circumstances which
called for it were a sudden war, or a rising within the confines of Italy
and its neighbourhood (_tumultus_),[752] or a public mourning following
on a national disaster, or the death of a distinguished man.[753] The
cessation of the _justitium_ (_justitium remittere_[754]) was pronounced
by a decree of the magistrate who had enjoined it.

Although such a prohibitive order suspended the whole administration
of justice both civil and criminal, was accompanied by the closing of
the _aerarium_,[755] and even by the cessation of the sittings of the
Senate, it necessarily did not interrupt all the business of the state,
for it might be declared for the purpose of directing exclusive attention
to some special sphere of administration. Thus in time of danger the
military levy went on,[756] and during the social war, while all other
judicial business was suspended, the Varian commission still sat to
perform its vindictive work on the friends of the allies.[757]

Such was the constitutional employment of this exceptional power. But its
value as a political weapon was too obvious for it to fail to be part of
the armoury of the tribunes. We have seen the use to which it was put
by the tribune Licinius;[758] and his example was followed in the last
century of the Republic by his great successor in agrarian agitation, Ti.
Gracchus. In 133 he published an edict “prohibiting all other magistrates
from transacting business until the voting on his law was finished; he
put his own seals on the temple of Saturn, that the quaestors might not
draw money out or pay money in; he announced a fine that he would inflict
on praetors who ventured to disobey, so that each in terror abandoned the
administration which had been confided to him.”[759] The higher patrician
magistrates, the consul and praetor, could employ no such direct weapon.
They could, however, indirectly check the passing of a _plebiscitum_
by assigning to a comitial day one of those movable feasts, the date
of which was fixed by their authority,[760] and thus making it a _dies
fastus_.

_Intercessio_, though sometimes employed to describe the power of
prohibition which we have just discussed,[761] is more properly applied
to the power possessed, not only by higher magistrates, but by those
of equal authority, of vetoing acts already performed by magistrates
of equal or lower authority. It was an outcome, therefore, not only of
_major_ but of _par potestas_, and its invariable consequence was the
invalidity of the act against which it was levelled. The intercession
accompanied the _par potestas_ of the consuls; with the creation of lower
magistrates the conception of _major potestas_ as giving this power
arose, and the culminating point in the history of the intercession was
the creation of the tribunate. It was the great safeguard against illegal
or inequitable acts performed by magistrates, who were irresponsible
during their year of office, and the tribune’s _major potestas_ over
every magistrate made him the guardian of the interests, originally of
the Plebs and later of the whole community.

A veto to be valuable should imply some knowledge of the business vetoed;
and thus we are not surprised to find that, except in the case of the
tribune, the _intercessio_ was generally confined within the limits
of colleagueship. Thus the dictator possessed it against the consul,
the consul against the praetor; although it is not improbable that the
consul could veto the acts of the aedile and quaestor who were not his
colleagues.[762]

The tribune, outside the bounds of his own college, could employ
the intercession against all the patrician magistrates except the
dictator—against the consul, praetor, aedile, and quaestor. The growth
of the Roman constitution, however, created magistrates between whom no
relation which justified the veto could be imagined to exist; none, for
instance, could be established between the aedile and quaestor or between
the consul and censor, and accordingly these magistrates had no power of
impeding one another’s actions.

Three general limitations existed, which alone made this strange power
a practical working principle of the constitution. The first, which
was necessary to prevent utter confusion, was the finality of the
intercession. The veto could not be vetoed, and the act which had been
declared void could not be again made valid by the exercise of this
power. A second was its purely _civil_ character; in the field divided
command was not tolerated, and the intercession, therefore, did not
exist. A third was that the veto could only be directed against what was
clearly the act of a magistrate. We shall find instances of this rule in
the special applications of the intercession; an important consequence of
it was that neither the verdict of a _judex_ in civil cases, nor, after
the growth of the standing criminal courts, of the _judices_ in these
_quaestiones_ could be quashed by a magistrate.

The intercession may conveniently be considered from the point of view
of three spheres of magisterial power against which it was directed—the
decree (_edictum_[763]), the _rogatio_, and the _senatus consultum_.

(i.) The intercession might be directed against decrees of any
kind—against those issued in the course of civil jurisdiction by the
praetor, in the course of criminal jurisdiction by the consul, aedile,
or quaestor, or in the exercise of other departments of administration
such as the military levy. Intercession in all these cases rested on
_appellatio_, the request for help (_auxilium_) made by the individual
who felt himself injured by the decree. The appeal had to be made
personally to the magistrate and the _intercessio_ exercised personally
by him. Thus we find tribunes tracking the footsteps of consuls to offer
help on the occasion of an expected levy,[764] and a praetor taking up
his position close to the chair of his colleague, waiting for appeals
from his decisions.[765] In civil jurisdiction the _intercessio_ might
be employed at any stage of the proceedings before the magistrate
(_in jure_); the appeal was usually from one of the city praetors to
another, although they might possess different judicial departments
(_provinciae_).[766] The general principle was to give the mutual
right of veto to magistrates possessing somewhat similar authority and
knowledge. But this rule did not apply to the tribune. His interference
was directed against both civil[767] and criminal jurisdiction, and
against the exercise of administrative power, especially that of the
consul. In such cases as the consular conscription or the quaestor’s
collection of the taxes,[768] it is not the general decree that is
opposed by the tribune, but its application to individual cases by
the _coercitio_ of the magistrate. An appeal of this kind made to the
tribunes sometimes became the subject of a quasi-judicial process,
especially if it had been made to the whole college.[769] A picture of
this process, which has been preserved, shows the appeal made from a
consular levy; the appellants and the magistrate appealed against appear
before the benches of the tribunes (_ad subsellia tribunorum_);[770] the
_collegium_ weighs the arguments and then gives its verdict, sometimes
with the grounds of its decision.[771] It is possible that the college
may in these cases have agreed to give the finding by a majority of
votes, although, if one tribune persevered in the veto, he might
overrule the assent of all his colleagues.

(ii.) The intercession against a _rogatio_, as contrasted with the power
of forbidding a magistrate to question the people,[772] became at a very
early period of the Republic the exclusive right of the tribune. It might
be pronounced in any of the assemblies and against any kind of measure
brought before these assemblies—against elections,[773] against _leges_,
including formal acts such as the _lex curiata_,[774] and against
_plebiscita_.[775] Custom had caused the intercession against a _rogatio_
to be guided by certain formalities; it seems to have been irregular
to pronounce the veto before the day of voting had arrived,[776] and
indeed before the speeches for and against the law had been made.[777]
In the case of laws, the correct time for interposing the veto seems to
have been the moment when the introductory acts of the magistrate were
over and before the voting had commenced;[778] in elections we find the
tribune interceding after the first tribe had voted.[779]

(iii.) The intercession against a decree of the Senate (_senatus
consultum_) was in theory a veto of the magistrate’s decree on which he
had taken advice. It resided originally with the _par majorve potestas_.
It was exercised by the tribune against the tribune,[780] consul,[781]
and praetor,[782] and throughout the greater part of the history of the
Republic by the consul against the consul.[783] The tribune possessed
the right of vetoing senatorial decrees at the time when he had not only
no power of summoning the Senate, but not even a seat in the House. In
early days he placed his bench before the open doors for the purpose
of examining decrees which were passed out to him and signifying his
approval or dissent.[784] But, when in course of time the tribune
gained the right of taking part in debate and of summoning the Senate,
his intercession came to replace that of the consuls; and although the
consular veto of a _senatus consultum_ continued to be employed long
after that against a _rogatio_ had ceased to be recognised, it is not
found after the time of Sulla (81 B.C.).[785] Here again the tendency was
to make the tribunate the sole prohibitive power, and the tribune the
sole guardian of the law.

The exercise of the veto in the Senate was simplified by the magistrate,
who intended to impede the resolution, signifying his intention
beforehand. This is the meaning of the declaration often made by a
magistrate in the Senate, e.g. by the consul, that “he would not
allow any business to proceed” (_non passurum quicquam agi_).[786]
This declaration saved the time of the House, since the veto was not
pronounced during the debate, but usually after the voting on the
measure[787] or while the voting was in progress.[788] Hence the veto
did not interrupt the procedure, nor even the threat of the veto suspend
the particular business. The motion on which the veto had been put was,
if approved by a majority of the Senate, drawn up as a resolution of the
House (_senatus auctoritas_). It had lost its binding legal force as a
decree, but it remained as an opinion for the guidance of any magistrate
who cared to respect it. Sometimes the Senate requested the magistrate
to suspend the intercession (_intercessionem remittere_),[789] and
sometimes attached to a particular decree a general vote of censure on
any magistrate who should veto it.[790] The intercession on certain kinds
of _senatus consulta_ might be forbidden by law. Thus the _lex Sempronia_
(_de provinciis consularibus_) of 123 B.C. forbade the employment of the
veto on the senatorial assignment of the consular provinces.[791]

It is needless to say that, with this conflict of authority, there was no
true theory of responsibility in the Roman magistracy; for that implies
a unity of power. But a description of what may be called the second
element of responsibility, the capacity for being punished, or for being
forced to give compensation, for a misuse of functions, will form a
fitting complement to the history of the intercession.

The civil and criminal responsibility of magistrates was enforced by the
same courts and the same processes by which ordinary citizens were tried.
The only privilege which they enjoyed was that, as a rule, they could not
be tried for a criminal offence during their year of office, and that
none but the magistrates without the _vocatio_ and _prensio_ (i.e. the
quaestors and aediles) could be summoned into the praetor’s court.[792]
There was no special category of political offences which the magistrate
alone could commit, although it is true that he was more specially liable
than ordinary citizens to be tried for certain crimes; his greater
capacity for doing harm to the state by cowardice or ignorance would
expose him more than the ordinary citizen to a charge of _perduellio_;
but the _judicium populi_ tried him as a citizen, not as a magistrate,
and the general rule that a magistrate was exempt from prosecution
during his year of office made him, in fact, a _privatus_ when he stood
his trial. The commission of delicts, which were not cognisable by
the popular courts, would have brought him before the ordinary civil
tribunals. If he robbed a citizen, it was _furtum_; if he assaulted him
in a manner not justified by his power of _coercitio_, it was _injuria_.
There was indeed one delict which only a magistrate or an official could
commit—appropriation of the state funds. In very early times this may
have been brought under the expansive conception of _perduellio_, and
punished criminally.[793] A few early laws, such as the fifth century
_lex de ambitu_, were directed exclusively against magistrates or
candidates for a magistracy; these laws doubtless specified the penalty
to be imposed,[794] but their interpretation was left to the ordinary
organs of criminal justice, the _comitia_.

But, as the foreign activity of Rome increased, and greater individual
responsibility devolved on commanders distant from the centre of affairs
and severed from all collegiate control, the possibilities of magisterial
wrong-doing became too great to allow of the continuance of this simple
system. The original theory was not, indeed, abandoned; the magistrate
was tried before the same civil and criminal courts as the ordinary
citizen; but the first step in the differentiation of ordinary from
political jurisdiction was made when the initiatory steps in criminal
proceedings against the magistrate were made the duty of a special
office. It was the tribunes who were now used by the state—that is, by
the Senate—as public prosecutors in criminal matters. It was a rough
kind of justice which they meted out; the various charges which they
brought could hardly be described by specific names, and in few cases
was a penalty fixed by law. They formulated a punishment and brought it
before the people, appearing as accusers either before the tribes or,
when the penalty they proposed was a capital one, before the centuries,
and the people, by a special legislative act, accepted or rejected their
proposal.[795] Their superior _potestas_ and, when the injury was done
to their person, their _sacrosanctitas_ gave them the legal right to
coerce any magistrate into appealing or to bring him to trial during his
year of office; but so strong was the feeling against this indignity
to the magistracy that the veto of a colleague postponed the decision
until the expiry of the official functions of the delinquent.[796]
This political jurisdiction was not, however, directed solely against
magistrates, but against any individuals who held an official position,
against the staff-officers (_legati_) of a general,[797] against
envoys[798] and senators,[799] and even against the farmers of the
revenue (_publicani_).[800] The usual victims, however, were consuls
and praetors, and the offences charged were mainly such as came under
the conceptions of treason,[801] or were open violations of the rules
governing the magistracy;[802] but sometimes they were wrongs done to
individuals, such as might have come before the civil courts.[803]

The growth of Rome’s provincial territory made the continuance of this
clumsy and casual jurisdiction impossible. The creation of the standing
criminal courts (_quaestiones perpetuae_), with their presidents and
juries, was the reaction of the provinces on Rome. We shall speak
elsewhere of the mixed character of these courts, which were formed of a
fusion of ideas borrowed from the criminal and civil law. The earliest
which were created supplied a readier redress and severer punishments for
the delicts of magistrates than the civil courts could give. Others were
based on the classification of political offences. The great codification
of the criminal law effected by Sulla (81 B.C.) rendered the tribunician
jurisdiction superfluous, although it still reappeared at intervals
during the party struggles of the close of the Republic.

We have now reviewed every important aspect of the magistracy in general;
but before going on to describe the separate functions of the magistrates
in administration, so far as these have not been already anticipated,
it will be convenient to touch slightly on the formal conditions
requisite for holding office at Rome. These conditions often illustrate
the magistrate’s position in the state, and they sometimes create real
limitations on his power.

The qualifications for public office (_jus honorum petendorum_)
were based on the general principle that for patrician magistracies
any citizen was eligible,[804] for plebeian only those of plebeian
birth.[805] But to this general rule there were certain limitations based
partly on the idea of the dignity of office, partly on the view that
experience of a certain kind was necessary for the fulfilment of such
responsible functions.

In the first place, citizenship had not its private-law connotation.
Freedmen may not have been _de jure_ excluded from office;[806] but
the lists of magistrates show that not only were the sons of freedmen
ineligible, but that the magistracy was practically reserved to those who
could boast a free grandfather.[807]

In the second place, certain careers were considered as a necessary
preliminary to, others as a necessary disqualification from, the
magistracy. In a military city like Rome one is not surprised to find
that a certain amount of military service was demanded of one who might
have to lead the armies of the state, and that during the greater
part of the Republic the _capite censi_ were wholly excluded from the
magistracy. The length of service required from the infantry soldier
is unknown; from the _eques equo publico_ it was ten years’ service
“in the camp or the province,”[808] as late as the time of C. Gracchus
(124 B.C.).[809] This military qualification gives us a minimum age of
twenty-eight as being necessary for the holding of the quaestorship.
In the Ciceronian period, on the other hand, the age was thirty,[810]
and the military qualification, although it still partially survived in
municipal law,[811] seems to have been abolished for Rome. Conversely,
the exercise of any trade or profession for which payment was received
was a disqualification for office, as long as the trade or profession
was exercised.[812] This was, to some extent, an outcome of the prejudice
against βαναυσία found amongst all military peoples;[813] but, as offices
at Rome were unpaid, it was also a necessary provision for securing due
attention to the discharge of the duties of the magistracy.

Thirdly, access to the magistracy might be hindered by the past moral
delinquencies of an individual or his criminal condemnation. It is a
mistake to suppose that there was a definite class of _infames_ excluded
from office at Rome. Certain criminal laws made temporary or permanent
exclusion from the magistracy one of their sanctions. Exclusion on
kindred grounds—notorious moral lapses of the candidate, his previous
condemnation in a disgraceful civil suit, the fact that a prosecution
for a crime was at that moment hanging over his head—was entirely
the work of the magistrate who presided over the elections. He acted
entirely on his own discretion, although naturally on the advice of a
_consilium_ of experienced men, in declining to receive the name of such
a candidate.[814] This remarkable power was the outcome of the still
surviving theory that the magistrate nominated his successor, and that
the election by the people was only a complementary act.

Other limitations to the attainment of magistracy were determined by the
previous holding of office. The magistrate who presided over the filling
up of a vacancy in the regular magistracies might not return himself as
elected;[815] and two laws further provided that, if a new office was
established by statute, neither the _rogator_ of the measure nor his
colleagues or relatives should be eligible to the post.[816]

The continuation and accumulation of magistracies were also forbidden
by _plebiscita_ of the year 342 B.C., which enacted that at least ten
years must elapse between the tenures of the same magistracy, and that
two magistracies should not be held together in the same year.[817]
Such legislation was the starting-point for a series of measures known
as _leges annales_, which specified the order in which the various
magistracies must be held (_certus ordo magistratuum_),[818] the age
which qualified for each, the interval which must elapse between the
holding of any two, and that which must intervene between the holding
of the same, magistracies. In the year 180 B.C. the _lex Villia_, a
_plebiscitum_ of a comprehensive character, was passed, which specified
the age at which each magistracy might be held;[819] it appears also
to have fixed the interval which must elapse between the holding of
two patrician magistracies, since from about this period we find the
beginning of the rule, which held good in Cicero’s day, that a biennial
interval must be observed between the patrician offices in the _gradus
honorum_.[820] Finally, Sulla in 81 B.C. re-enacted the rules about the
_certus ordo_ and the interval between the same magistracies by declaring
that the quaestorship must be held before the praetorship, and the
praetorship before the consulate, and that ten years must elapse before
the resumption of the same magistracy.[821]

The validity of election was dependent on the observance of certain
forms, the first of which was concerned with the presiding magistrate.
While the tribune alone could be the president at the election of
plebeian magistrates, the consuls and praetors created the _magistratus
populi_, but, as we have already shown in connexion with the
_interregnum_, none but a consul could preside at the consular and
praetorian elections.

The first act of the candidate was to send in his name (_profiteri_)
to the magistrate destined to preside. This _professio_ had to be made
three weeks (_trinum nundinum, intra legitimos dies_)[822] before the
date of election. A list of the candidates was then prepared for the
people[823] after the magistrate had examined their names and satisfied
himself of the qualifications of the competitors. Up to the middle of the
last century B.C. the candidates need not be in Rome; but after the year
63 B.C. some unknown law enacted that they should make the _professio_
in person,[824] and a similar clause was again inserted in Pompeius’
law _de jure magistratuum_ of 52 B.C.[825] During the interval between
the _professio_ and the election, canvassing, which had commenced long
before the open profession of candidature, became brisker. Legitimate
_ambitio_ almost rose to the dignity of a formal act. The aspirant, in
a dazzlingly whitened robe (_candidatus_), surrounded by a cortège and
accompanied by a slave with a good memory for names (_nomenclator_),
affably saluted all the citizens whom he met, and shook hands warmly
with the rustic voter. Rome’s habit of extending her franchise made the
country vote always of some importance; but after the social war the
canvassing that followed the _professio_ was as nothing compared with
that which had preceded it. The municipal voters, who could not come up
for ordinary legislative business, flocked to Rome for the elections
in the summer; and to secure success all Italy had to be sounded from
the Padus to the Lacinian promontory. Canvassing on this gigantic scale
required time and an elaborate organisation. We find Cicero beginning
to canvass on 17th July 65 B.C. for the consular elections in 64; and
men better circumstanced in birth, wealth, and rank commenced operations
by setting in motion a vast machine, which had as its head some noble
coterie at Rome (_sodalitas_), and as its instruments the election agents
(_divisores_), each of whom took charge of a portion of a tribe. The
means used were not necessarily illegitimate, although the names of the
_divisores_ became associated with bribery,[826] and a series of laws—not
longer, however, than the chain of enactments which Rome usually devoted
to some special theme—strove by ever-increasing penalties to stamp out an
evil which disappeared only with the popular assemblies themselves.

After the people had chosen the new magistrate by their suffrage, a
final duty had to be performed by the president in the shape of the
_renuntiatio_, or formal announcement of the result of the election. That
this was not a purely formal act is shown by the president’s power to
refuse to return a legally, or even morally, unqualified candidate who
had slipped through the previous stages of election.[827]

If we believe that the king during his lifetime nominated his
successor,[828] there must from the first have been an interval between
appointment to and entrance on office. This interval existed throughout
the Republic for most of the annual magistracies; only the dictator,
the censors, the magistrates created as the result of an interregnum
(_ex interregno_), or those elected to fill up a place that had become
vacant (_suffecti_), entered office immediately on their election. For
the ordinary magistrates there was a more or less considerable interval
between election and entrance on office; for the patrician magistracies
it had originally been short, for the elections were one of the last
acts of the consul’s annual reign, and the new consuls and praetors
entered office from the close of the third century on 15th March,[829]
from 153 B.C. on 1st January.[830] But in the closing years of the
Republic—perhaps in consequence of a change introduced by Sulla—the
elections were universally held in the month of July; and this gave a
six-months’ interval between election and entrance on office for the
consuls and praetors, and one of more than four months for the quaestors
and tribunes, who assumed their functions on 5th and 10th December
respectively.[831]

During this interval the magistrate elect was _designatus_, and, though
his _imperium_ or _potestas_ was necessarily dormant, he had a distinct
position in the state and could exercise certain official functions
preparatory to the magistracy, such as issuing edicts, which would be
binding after his entrance on office.[832] Even before the _renuntiatio_
he had taken an oath of fealty to the state[833]—one, however, that could
only have been exacted when the candidate was present at the election.

The entrance on office was signalised by another promise on oath to
respect the laws (_in leges_)—a custom which probably grew out of the
power of the people to bind either present or future magistrates by an
_execratio_ to respect a certain _lex_.[834] Refusal to take it within
the period of five days was followed by loss of office;[835] only the
Flamen Dialis, who might not swear, could claim exemption, and with the
people’s consent take the oath by deputy.[836] During the later Republic
we also find evidences of an oath which closed the tenure of office; the
magistrates, on the expiry of their functions, addressed the people and
swore that, during their period of rule, they had wilfully done nothing
against the interest of the state but striven their utmost to promote its
welfare.[837]

The assumption of the magistracy carried with it the right—and indeed
the duty—to exhibit certain external marks of dignity which distinguished
the masters of the community from their subjects. The lictors and the
fasces were a survival from the monarchy, and were employed as a token
of dignity and for the enforcement of the _coercitio_ by the magistrates
with _imperium_, on a scale, as will be seen when we describe the
different magistracies, proportioned to the strength of the _imperium_.
The other magistrates possessed only the servants—_scribae, praecones,
accensi, viatores, servi publici_—necessary for the carrying out of their
behests.

Like the lictors, the purple robe—the almost universal symbol of
royalty in the ancient world—and the curule chair were inherited by the
Republican magistrate; but the royal robe could be used only in the
triumphal procession, where the other regal _insignia_ were revived,[838]
or for the celebration of festivals.[839] In the garb of peace of the
curule magistrates the purple had become a narrow hem (_praetexta_) round
the toga. The quaestors, who were not included in this list, seem to have
worn no special dress; while the tribunes and plebeian aediles showed,
by their complete lack of magisterial _insignia_, that they were never
regarded as magistrates of the community.

In the dress of war the regal colour also reappears. Once outside
the _pomerium_ the magistrate may don the scarlet military cloak
(_paludamentum_) worn over his armour. The dagger (_pugio_)[840] worn
round his neck or on his waist, and the axes, which can now be enclosed
in the fasces, were added signs of the untrammeled _imperium_.

The _insignia_ were not mere empty signs that bolstered up a power which
won no true respect. If the Senate appeared to the envoy of Pyrrhus to
be an assembly of kings, he was looking at a body the members of which
had for some period of their lives received the homage due to kings. The
reverence for office as a holy trust, which is such a characteristic
feature of Republican forms of government, was heightened in the Roman
mind by its genius for abstraction, which saw in the individual holder
of power not the magistrate but the magistracy, and by its almost
superstitious veneration for the forms of law. It was an obvious thing to
Romans that they must spring from their horse when they met a magistrate
riding,[841] that they must make room for him on the path, that they
must rise from their seat as he passed by, and that they must stand
bareheaded before him in the _contio_ or the _comitia_. The occasional
Roman, to whom these things were not obvious, was soon reminded of his
duties by the _coercitio_ of the magistrate, who had the fullest means of
protecting his own dignity; his life had been made by the law as sacred
as the life of the state itself, for an attempt on the safety of a Roman
magistrate was treason (_perduellio_).

§ 2. _The Individual Magistracies_

After this general review of the magistracy, we may glance at the precise
place in the state administration assigned to the separate magistrates,
so far as the record of their duties has not been already anticipated.

_The Dictator_

The only true mode of creating a dictator (_dicere dictatorem_) was
through nomination by one of the consuls,[842] who, as we have seen, to
avoid unfavourable omens, pronounced his selection between midnight and
morning.[843] The question, which consul was to exercise this power,
was decided either by the possession of the fasces, which belonged only
to the acting consul, or by one of the two favourite modes of settling
questions of collegiate action, agreement (_comparatio_) or the use of
the lot (_sortitio_).[844] But this purely consular function came in
time, like all extraordinary acts of administration, to be usurped by the
Senate. At what period this result was attained we cannot say; for the
annalists have transferred the constitutional observances of the third
century B.C. to the earliest times.[845] Finally, the point was reached
at which the Senate not only suggested the advisability of nomination
but the name of the nominee;[846] opposition to these instructions was
constitutionally possible,[847] but was borne down by the _de facto_
power of the Senate with the tribunate as its instrument. By the close
of the fourth century B.C. custom had further fixed the rule that the
person created should be a past holder of the consulship.[848] The
ancient provision that the dictator could be nominated only on Roman soil
was found impossible of observance, since the consul, when he received
the Senate’s message, was often far distant from the city, and _ager
Romanus_ was, in true Roman fashion, liberally interpreted to include
the whole of Italy.[849] After the nomination of the new magistrate his
_imperium_ was confirmed by a _lex curiata_.[850] The _insignia_ of the
dictator were in one respect greater even than those of the king. As the
consul had inherited the twelve regal lictors, the dictator, in order
that his higher _imperium_ might be more clearly shown, was preceded by
twenty-four;[851] and the axes were seen with the fasces even within
the walls.[852] The dictator appointed to meet an emergency either of
war or revolution[853] bore no special designation which had reference
to this emergency, but was aptly described as created for carrying on
the business of the state (_rei gerundae causa_).[854] But minor needs
of peace might lead to the nomination of a dictator for a special
purpose; we find a dictator appointed for holding elections (_comitiorum
habendorum causa_),[855] on one occasion for making out the list of the
Senate (_legendo senatui_),[856] and others for purely ceremonial or
religious purposes—for the celebration of games (_ludorum faciendorum
causa_)[857] and the ordering of festivals (_feriarum constituendarum
causa_),[858] and for driving the nail (_clavus annalis_) into the
temple of Jupiter (_clavi figendi causa_),[859] an act of natural magic
which was supposed to be a specific against pestilence. These dictators
_imminuto jure_, appointed for a special purpose, were expected to retire
as soon as the function was completed.[860] The six months’ tenure of the
dictator _rei gerundae causa_[861] was never legally exceeded, but it
might be shortened, for it seems to have been necessary for the dictator
to resign when the consul who had nominated him retired from office.[862]

The creation of a dictator did not abolish the other magistracies of the
people; it merely suspended their _independent_ activity. The dictator
was a _collega major_ given to the consuls, who still continued under
his direction to command armies,[863] and even those troops which were
levied by the dictator took the oath of obedience to the consuls as
well.[864] The praetors still sat in the courts, and lesser officials
continued to perform the subordinate functions of government. But it
was felt that under a dictator all magistrates existed on sufferance,
with the exception of those of the Plebs.[865] It is certain that the
presence of a dictator brought no legal diminution to the powers of the
tribune; it is equally certain that constitutional custom dictated that
the _auxilium_ of these city magistrates should not be effective when the
state was under martial law.[866] Collision was necessarily rare since
the duties of the dictator took him far afield.

This extraordinary power had yet some normal limitations. The dictator
never meddled with civil jurisdiction; and he had not the power,
possessed by the consuls while in Rome, of taking money from the
_aerarium_ without a decree of the Senate.[867] The government was
naturally unwilling that a magistrate to all intents and purposes a king
should wage war out of Italy; and there is but one example of a dictator
commanding in the extra-Italian world.[868]

A further limitation to his original powers, and one of the greatest
consequence, was subsequently introduced. The dictator was made subject
to the _provocatio_ within the city,[869] probably by the _lex Valeria_
of 300 B.C.[870]—a change which, while not hampering the power of this
magistracy in the field, prevented its being used for ruthlessly crushing
a so-called sedition in Rome. Although we here see the commencement of
the infringement of its civil power, the military authority of the office
persisted for a century longer. It was not until the Hannibalic war that
the two weakening elements of popular election and colleagueship were
introduced into this magistracy. In the year 217 B.C., when, after the
disaster at the Trasimene lake, it was difficult to communicate with the
sole surviving consul, Q. Fabius Maximus was elected dictator,[871]
presumably at the _comitia centuriata_ under the guidance of a praetor.
In the same year the distrust and misplaced confidence of the people
raised M. Minucius, the master of the horse, to an equality of command
with Fabius.[872] Both acts were signs that the office was felt to be
an anachronism, and the next year (216) marks the last instance of the
military dictatorship.[873] The last dictator (_comitiorum habendorum
causa_) was appointed in 202;[874] for the application of the name to
Sulla and Caesar was the transference of the title of a constitutional
office, in the first instance to a constituent authority, in the
second to a monarchy, and in neither case was even the ancient mode of
nomination preserved.[875]

_The Magister Equitum_

Every dictator, no matter for what purpose appointed,[876] nominated as
his delegate a master of the horse,[877] who, unlike other delegates,
possessed the _imperium_, six fasces,[878] and a rank equal to the
praetor.[879] These distinctions justify the assertion that he was a
magistrate,[880] and apparently one of curule rank, even though his
tenure of power was strictly dependent on that of his nominator.[881]
Like a magistrate he asked for a _lex curiata_ for the ratification
of his _imperium_,[882] and he seems to have had power to question the
people and to transact business with the Senate.[883] In these three
respects the office differed from that of the _tribuni celerum_ of the
monarchy. As the dictator was a lesser king, the _magister equitum_ was
a greater lieutenant; but, in spite of the theoretical independence of
his position, his services were entirely at the disposal of the dictator,
who could enforce obedience to his commands, if necessary, by capital
punishment.[884] Although originally employed, as the name signifies, for
the sole leadership of the _equites_ under the higher _imperium_ of the
dictator, and always to some extent preserving his character of a cavalry
general, he could be entrusted by his absent superior with full command
either in the camp or in Rome.[885] The office was a useful one, as it
gave two generals of tried military capacity to Rome in time of danger,
and obviated the disadvantages that might follow from the dictator’s
having to use incompetent consuls or praetors as his subordinates.
This consideration also explains why, in order to secure experienced
men for the post, the custom became fixed of choosing ex-consuls or
ex-praetors.[886]

_The Consuls_

The consuls, after their election at the _comitia centuriata_, could at
least in later times assume the _insignia_ of their rank, and transact
all the ordinary official business within the state without waiting
for the consent of the _curiae_. Their first act was the taking of the
auspices; these were always favourable, for the _haruspex_ who stood
by[887] announced, as a matter of form, that lightning had been seen
upon the left. Armed with this consent they assumed the praetexta,
and, preceded by their lictors, performed the first significant act
of authority. This act was the summons of the Senate,[888] and was
one which showed that they were the magistrates who stood highest
in the Roman executive. For, indeed, throughout Republican history,
the consulship—though in power it often yielded to the tribunate or
dictatorship, and in the reverence it inspired to the censorship—was the
highest titular office in the state.[889] The rank of the consuls is
sufficiently exhibited by the fact that it was chiefly by their names
that the years were dated,[890] and by the ceremonial respect which was
paid to them by the other magistrates.[891]

In considering the functions of the consuls we must distinguish between
two periods of the history of the Republic. The first extends from their
institution to the year 81 B.C.; the second from this year, when the
reforms of Sulla introduced a change in their position which was felt
as long as consuls continued to exist. This change caused no alteration
in their powers, but only in the scope of their activity. During the
first period they are the heads of the whole state, and are found ruling
wherever Roman energy extends; during the second they are practically the
chief magistrates only of the city of Rome and of Italy.

The theory of colleagueship—that each individual member of a college
was vested with the fullest power of action subject to the veto of his
assessor—did not necessitate a united activity of the consuls in every
department of state. They divided their functions, sometimes before
their entry on office,[892] and in early times there are traces of the
fundamental division of competence expressed by the terms _domi_ and
_militiae_, one consul occasionally taking the field at the head of an
army, while the other remained at home to transact the business of civil
administration.[893] This arrangement, which divested colleagueship
of its meaning as a safeguard against the rule of a single man, was,
however, very unusual, and, as a rule, the consuls were present together
in Rome or undertook a joint command abroad. But joint activity in the
city—even after the duties of registration had been given to the censor
and those of civil justice to the praetor—was in some departments almost
impossible. It was obviated by a principle of rotation, which gave the
administration and the fasces for a single month to each consul in
turn,[894] the elder of the two being given the symbol of power first,
and the one who possessed it at the moment being described as _consul
major_.[895] This distinction never wholly vanished; for Caesar, we are
told, revived in his consulship (59 B.C.) an old custom by which the
lictors walked behind the consul who had not the fasces.[896] But long
before Caesar’s time positive co-operation between the consuls in the
city was common. They summoned the Senate together, and many consular
laws bear the names of two rogators. There remained, however, several
important acts which, while they, morally if not legally, demanded the
assent of both consuls, could yet be performed only by one. Such were the
election of magistrates and the nomination of a dictator. In these cases
the question as to which consul should act was often decided by agreement
(_comparatio_) or by lot (_sortitio_).

In all domestic matters, with the exception of civil jurisdiction
and finance, the consuls were the heads of the administration,[897]
and this, in the developed Republic, meant that they were the chief
servants of the Senate. It was the consuls who regularly consulted this
body, who expressed its decrees, as well as commands which they had
a constitutional right to issue on their own authority, in the form
of edicts, and who brought legislative measures, which had received
senatorial approval, before the _comitia_ of the centuries and of the
tribes. It was they, too, who represented the state to foreign kings and
nations and introduced their envoys into the Senate.

Consular jurisdiction was of two kinds, administrative and criminal.
The administrative justice of the Republic was concerned chiefly with
financial matters touching the interests of the community, such as
pecuniary claims made by the state on individuals or by individuals on
the state. The regular discharge of this duty passed to the censors; but
in the gaps between the censorships it reverted to the consuls. We also
find them adjudicating on questions of property between the cities of
Italy.[898] In this matter they doubtless acted on the instructions of
the Senate.

The criminal jurisdiction of the consuls was expressed in three ways.
It was for centuries, as exercised through the quaestors, the regular
capital jurisdiction for ordinary, as opposed to political, crimes;
it was asserted, as part of their _coercitio_, with or without appeal
according to the nature of the sentence imposed;[899] or it might be
jurisdiction without appeal delegated by the people. We shall trace
elsewhere the growth of a custom by which the _comitia_ assigned
jurisdiction on certain crimes to special commissioners. The people, who
in this delegation were acting on the advice of the Senate, generally
left the appointment of the commission to that body, and the Senate
selected either a consul or a praetor.[900] We also find the consul
presiding over a criminal inquiry (_quaestio_) raised by a point of
international law, such as the question whether the repudiation of a
treaty by the people should have as its consequence the surrender of the
general guilty of concluding it.[901]

The unlimited _imperium_ of the consul in the field (_militiae_), which
was asserted when he had crossed the _pomerium_[902] and required
the sanction of the _lex curiata_, was, in the early Republic when
wars were confined to Italy, generally exercised by both the consuls
together. To avoid the inconvenience and danger attending the rule of
two commanders-in-chief of equal power, the principle of rotation was
adopted, each consul having the supreme command for a single day.[903]
But this device was necessary only when military considerations dictated
that all the Roman forces should act together. Frequently the Roman
armies had been simultaneously directed against various points of Italy,
and the custom naturally suggested itself that each consul should command
half of the regular army of four legions, and thus have an independent
sphere of operations (_provincia_).[904] In a defensive war, such as
that against Hannibal, Italy would naturally fall into two consular
provinces;[905] but the practice became even more essential when the
Roman arms extended beyond the peninsula, and in the period of the
acquisition of the empire, from the beginning of the first Punic war
to the close of the struggle with Greece (264-146 B.C.), _Italia_ as
a whole, and some foreign country such as Greece or Macedon, are the
regular _provinciae_ held by the consuls.[906] The arrangements which
were made for the permanent government of provinces, first through
praetors and afterwards through pro-magistrates, tended to arrest their
employment for this purpose; but down to the time of Sulla (81 B.C.) a
consul might at any time be appointed to a transmarine province.[907]

The consuls settled the distribution of _provinciae_ by agreement or
by lot,[908] the _sortitio_ becoming in time the more usual practice.
Occasionally the Senate ventured to suggest that one of the consuls
was better qualified for a special department, and in this case the
inevitable consent of his colleague enabled him to assume it _extra
sortem_.[909] But, as Rome’s activity extended, and the available
magistrates with _imperium_ increased, the important question came to
be, not who should have one of two departments, but which should be the
consular provinces. This power to nominate the provinces (_nominare
provincias_) had, by the close of the Hannibalic war, become the
undisputed prerogative of the Senate,[910] and one of its surest modes
of controlling the consuls. This _de facto_ power was formally recognised
by a law of the tribune C. Gracchus in 123 B.C., although it scarcely
required legal recognition, and the purport of the _lex Sempronia_ was
to weaken the discretionary power of the Senate by enacting that the
consular provinces should be fixed before the election of the consuls
who were to hold them.[911] At this period the consular departments were
almost invariably foreign commands; but, after the close of the social
war and the reforms of Sulla, they were held by their recipients as
proconsuls after their year of office at Rome had expired.

We do not know the exact tenor of the _lex Cornelia de provinciis
ordinandis_. Sulla did nothing to infringe the military _imperium_ of the
consuls; after as before his law it was legal for them to “approach any
province”;[912] but he devised some means of separating home from foreign
commands, which, by crystallising the established custom, restricted the
consuls and praetors to the civil government of Rome and Italy, and sent
them out after their year of office as proconsuls and propraetors to the
provinces. The powers conferred by the military _imperium_[913] were
thenceforth lost, and the consul at the close of the Republic had less
specific functions than any magistrate; even his criminal jurisdiction
had vanished before the establishment of the permanent courts. Yet still
the consul, who observed constitutional forms, was the chief interpreter
of the Senate’s will; while one who, like Caesar in 59 B.C., violated all
these forms, might exercise an almost monarchical power. The possession
of the consulship was the great annual prize, contested and almost
equally secured by the conservative and the reform parties from the time
of the Gracchi to the close of the Republic,[914] and the competition was
not wholly directed to secure the military _imperium_ which lay beyond
it. The civil office might still make a capable man, supported by a
powerful following, the guide of the destinies of the state.[915]

_The Praetors_

We have seen how the functions of civil jurisdiction were given to
a minor colleague of the consuls, and how a second colleague was
subsequently added to try cases in which the interests of _peregrini_
were involved.[916] The needs for judicial magistrates could not end
here. The provinces of Sicily and Sardinia, acquired as a consequence of
the first Punic war, required jurisdiction, and two praetors were given
them about the year 227 B.C.; two more were added in 198 B.C. for the two
newly acquired Spanish provinces, thus bringing up the full number to
six. A _lex Baebia_ (_circa_ 180 B.C.) enacted that four and six praetors
should be elected in alternate years, probably for the wise purpose of
making the praetorian government of the difficult Spanish provinces
biennial; but this law was soon suspended, and six praetors continued
to be annually elected until the time of Sulla (81 B.C.).[917] It is
true that between 198 and 81 many provinces had been added to the Roman
Empire; but the principle of administration by pro-magistrates had gained
recognition while these were being created; the praetors were becoming,
like the consuls, more and more city officials, and the necessity for
adding to their number came from the development of the criminal law.
At least eight praetors were needed for the presidency of the civil and
criminal courts at Rome, and consequently two were added by Sulla to the
original six.

The variety of functions performed by the praetors was due to their
having a general and a special character. On entering office, after
election by the centuries, they were at once, as inferior colleagues
of the consuls, capable of any of the duties which flowed from the
_imperium_. They were then assigned some special office, some definite
_provincia_; but the exercise of this did not destroy their capacity
for general action. For command in war, as well as for the exercise of
at least civil jurisdiction—both attributes of the full _imperium_—they
required a _lex curiata_. Each had the right to six lictors, and appeared
with the full number when controlling a province outside the city;
but, in the exercise of his jurisdiction at home, he employed, or was
allowed, only two.[918] The praetor’s specific title was derived from
his province; of the two original home praetors one was known as the
_praetor qui inter cives jus dicit_, or, in the colloquial phrase which
became titular, as _praetor urbanus_; the other as the _praetor qui
inter peregrinos jus dicit_, known finally as the _praetor peregrinus_.
But both the home praetors were often spoken of as having _urbanae
provinciae_ and exercising _urbana jurisdictio_.[919] Their rank was
higher than that of their colleagues—hence their names were, like those
of the consuls, used for dating[920]—and of the two the _praetor urbanus_
was regarded as holding the more distinguished position.[921] His duties
were naturally far more engrossing than those of his colleague, and the
law that he must not be absent more than ten days from Rome during his
year of office[922] made him more of a distinctly civic official.

The powers of the praetors, taken in their natural order, may be divided
into (i.) their general administrative duties at Rome, and (ii.) the
duties of their special departments. In the first of these spheres they
acted in virtue of their own _imperium_ but _vice_ the consuls, and
generally, therefore, when the consuls were absent from the city. If they
acted when the consul was present, it was by authority of the Senate, and
legally the consuls might prohibit this action.[923] Such an injunction
by the Senate was a constitutional mode of coercing the consuls into
doing their duty. In this way the praetors might summon the Senate,[924]
propose a _rogatio_,[925] hold the levy,[926] and exercise criminal
jurisdiction delegated by the people.[927] Usually, however, such duties
were performed by them only in the absence of the consuls, and the
_praetor urbanus_ generally took the lead,[928] although the summons of
the Senate by both home praetors, and even by a provincial praetor, was
not unknown.[929]

The special functions of the praetors were always assigned by lot
(_sortitio_). During the period when some of the praetors governed
provinces, a regular sortition took the form of an assignment of the
two urban _provinciae_ to two, and of the foreign provinces to two
and afterwards to four members of the college.[930] But in the third
and early part of the second centuries, before prorogation of command
became the normal principle, and when Rome had few magistrates with
_imperium_ at her disposal, this regular sortition could not always be
observed. Sometimes the two urban praetorships were combined,[931] or the
_praetor peregrinus_ might be given an Italian command, such as Cisalpine
Gaul.[932] In this way a praetor could be spared for the command of the
fleet or in Gaul (at Ariminum). This disturbance of the _sortitio_ and
the appointment of a praetor _extra ordinem_[933] were naturally the work
of the Senate. After Sulla the two civil and six of the criminal courts
were assigned to the eight praetors by lot.

The civil jurisdiction, whether of the urban or provincial praetors,
still adhered to the ancient form by which the ruling in law (_in jure_)
was the duty of the magistrate, and the judgment on the question of fact
(_in judicio_) was the function of a single _judex_ or, in matters
requiring rapid decision, of a bench of “recoverers” (_recuperatores_).
The rulings of the _praetor urbanus_ had originally followed the forms
of the _legis actio_, but in matters affecting _peregrini_ a custom had
grown up for the praetor to devise formularies of action (_formulae_)
which bound the _judex_ in his decision. The convenience of this
procedure extended its use to almost all cases, and by a _lex Aebutia_ of
uncertain date the simpler formulary procedure almost wholly replaced the
more complicated provisions of the _legis actiones_.[934] The _formula_
was a conditioned acquittal or condemnation; the praetor said to the
_judex_, “If it appears that a debt is due, an obligation has been
incurred, etc., condemn the defendant in a certain amount or in a sum
left to your estimate; if the condition is not apparent, acquit him” (_si
paret ... condemna; si non paret, absolve_). The _judex_ by his finding
changed the conditioned sentence into one that was categorical and final.

In most communities such rulings as those of the praetors would be
occasional expositions of a fixed code or of an uncertain body of statute
and customary law. At Rome a useful practice was adopted which brought
the living law, as opposed to the dead letter of her only code and to
statutes which had fallen into disuse, before the eyes of all the people.
The praetors announced by means of edicts, issued on their entrance on
office, what their rulings would be in any given case. The edict was
the “living voice of the civil law”;[935] and it is not surprising to
find that by the time of Cicero it had taken the place of the “song” of
the Twelve Tables in the legal education of the Roman youth.[936] The
profession of the edict was interpretation of the law of Rome; but it
was an interpretation that took the form of “assisting, supplementing,
and even correcting the civil law.”[937] It was, therefore, not the
_jus civile_ of Rome, but the valid modifications of this expressed in
what was currently known as magistrates’ law (_jus honorarium_). The
civil law was of course presumed as the background of these documents;
it found expression in many formulae which the magistrates continued to
give, and the _album_ itself probably contained a line of separation
which showed where the formulae based on _jus civile_ ended and those
founded on magisterial promises began. The most typical language of the
_jus honorarium_ is one of command veiled under the form of promises;
the praetor asserts “under certain given circumstances I will grant or
will not grant a case” (_judicium, actionem dabo ... non dabo_). Less
frequently the language is more imperative: “I will compel payment or
an oath” (_solvere aut jurare cogam_); before the question of right is
decided, “I forbid force to be used” (_vim fieri veto_).

A consideration of judge-made law, the consequence it may be of
precedents drawn from already decided cases, and therefore merely the
recognition of practice which had already crept into use,[938] but
still expressed, as it is in this case, in a purely abstract form,
suggests many questions. First, as to its validity. The edict was law
that held good for a year (_lex annua_):[939] a limitation that would
have produced a most unsatisfactory uncertainty as to its validity for
future litigants and subsequent magistrates, had it not been for the
facts that it was actually continuous, and that it was received, only to
be slightly modified in accordance with legislative changes or with the
demands of convenience, by successive wielders of civil jurisdiction. To
use technical language, the edict was _perpetuum et tralaticium_.[940]
Secondly, we must consider the limitation on the magistrate and the
forces that bound him to observe his own promulgated law. At Rome the
veto operated successfully for this purpose[941] even before the passing
of the _lex Cornelia_ of 67 B.C., which obliged a magistrate to adhere to
the rulings of his own edict.[942] In the shaping of the edictal rules
the mere fact of publicity in a community so legally gifted as that of
the Romans must have sufficed to keep the magistrate within the bounds of
prudence; when he was conscious of little legal training, the assistance
of eminent jurisconsults must have frequently been called in.

The edict is the source of most of our modern Roman law; the titles of
Justinian’s _Digest_ are often commentaries on its rubrics excerpted from
the writings of the scientific jurists, and that it should become the
prototype of the world’s law was only natural when we consider the way in
which it was built up. It was not only the collective work of generations
of gifted men, who were fortunately not professing lawyers, but it was
the outcome of an adjustment of Roman law first with that of Italy and
then with that of the provinces. The beginnings of a recognition of a
“law of the civilised world” (_jus gentium_) must be older than the
institution of the _praetor peregrinus_, since for more than a century
the _praetor urbanus_ had been issuing edicts not merely for _cives_
but also for _peregrini_; but, when a separate comprehensive edict was
issued for _peregrini_, equity found a more systematic expression, and
its reaction on the comparatively rigid forms of the urban edicts was
necessarily great; but the power of this reaction was possibly even
surpassed by that of the provincial edict (_edictum provinciale_),
issued originally by the foreign praetors and then by the proconsuls and
propraetors in each of Rome’s dependencies.

The connexion of the praetors with criminal jurisdiction was, apart
from the rare occurrence of a special judicial commission, due to the
growth of the standing courts. These _quaestiones perpetuae_ or _judicia
publica_ were to a large extent modelled on the civil procedure by which
compensation was exacted through a court of _recuperatores_. Hence the
praetors seemed their most appropriate presidents, and the size of
the college was, as we have seen,[943] increased by Sulla to meet the
growing number of these courts. For criminal jurisdiction six praetors
were available, whose provinces were possibly determined by the Senate
and were certainly distributed amongst the designated magistrates by
the use of the lot.[944] Although the general principle of distribution
made each praetor preside over the jurisdiction ordained by a single
law which created a _quaestio_, yet the spheres of jurisdiction were by
no means fixed. Groups of _quaestiones_ or of their branches[945] might
be rearranged every year, and it may not even have been necessary for a
single praetor to maintain a particular sphere of jurisdiction throughout
the whole tenure of his office. The general administrative functions of
the office might interfere with jurisdiction, and a readjustment of the
original distribution of _provinciae_, probably with the consent of the
Senate, seems to have been sometimes necessary.[946]

_The Aediles_

The junction of the plebeian and curule aedileships into a single office
is testified by their being spoken of together where their duties are
mentioned or prescribed by law,[947] and the fusion was so complete that
it is sometimes impossible to discover whether a historical reference
applies to the plebeian or to the patrician magistracy. But in their
respective qualifications for office, forms of election and _insignia_,
the separation was still complete. The plebeian aediles must still be
plebeians, while the curule aediles belonged in alternate years to either
order;[948] the former were elected by the Plebs, the latter by the
_comitia tributa_ of the people; the former sat on the modest bench of
the plebeian officials and had no distinctive dress, the latter sat on
the curule chair and wore the _praetexta_;[949] the anomaly remained that
the one office was not a magistracy at all, the other a magistracy proper
which gave its holder a claim to a seat in the Senate. The one peculiar
privilege of the plebeian aediles—the _sacrosanctitas_ which they shared
with the tribunes—vanished as a consequence of their employment as
officials of the state.[950]

The general position now assumed by the aediles was that of assistants to
the consuls in the administration of the city; in the fulfilment of which
task they had certain special spheres of competence assigned them.[951]

(1) Their care of the state archives—originally possessed to a limited
extent by the plebeian aediles[952]—was still continued, and they divided
in some unknown way with the quaestors the custody of _senatus consulta_
in the _aerarium Saturni_.[953]

(2) The _cura urbis_ involved a series of duties connected with the
public sites, buildings, and functions of the city. The aediles had to
see to the paving of the streets, to insist on individuals keeping the
pathways before their own houses in repair, and to lease out at the
public cost the renewal of such thoroughfares as were connected with
public buildings.[954] They saw that all public places, such as roads and
squares, were kept clean and clear of obstacles, partly from a sanitary
motive, partly for the purpose of preventing the encroachments of private
buildings on public sites.[955] They controlled the water-supply and
prohibited private persons, with the connivance of the water-inspectors
(_aquarii_), taking more than their fair share from the public
conduits.[956] Their control of public buildings and temples was limited
to inspection and supervision, for the repair of such buildings, at least
when undertaken on a large scale, was leased out by the censors. Closely
connected with this _aedium sacrarum procuratio_[957] was their control
of the _cultus_ of the community, which obliged them to see that no
foreign innovations crept into the primitive form of Roman worship.[958]
Their police duties are shown by the edicts which they issued for keeping
order at the public games,[959] and by their control of private places
of utility or amusement to which the public were admitted, such as baths,
taverns, and the like.[960]

The aediles possessed the usual means of _coercitio_ for enforcing
their decrees; they seized pledges (_pignora_) and imposed fines
(_multae_).[961] When the latter surpassed the limit of the _multa
suprema_, the case went on appeal to the people; the plebeian aediles
defended their fines before the _concilium plebis_, the curule before
the _comitia tributa_. From the _cura urbis_ also sprang an anomalous
civil jurisdiction which was confined to the curule aediles; in one
form of civil action which survived in their edict as codified under
Hadrian—that, namely, arising from the damage done by wild beasts on the
public roads—it was they who gave the _formula_ and appointed the _judex_
or _recuperatores_.[962]

(3) Their care of the market is typified by Cicero in the most important
of its subdivisions—the care of the corn-supply (_cura annonae_).[963]
Their duty was to regulate prices as far as possible, especially by the
prevention of monopolies; the aediles often sold corn at a moderate price
fixed by the state, although sometimes ambition led them to incur the
loss themselves;[964] and it was they who as a rule presided over the
distributions ordained by the later _leges frumentariae_.[965] The supply
of corn to an army in Italy from the city magazines was also one of their
cares.[966] Other duties springing from their control of the market were
the enforcement of the sumptuary laws,[967] the inspection of weights
and measures with the maintenance of their normal standard,[968] and the
regulation of the sale of slaves and cattle. This power found expression
in civil jurisdiction, which was in this case also confined to the curule
aediles. It was they who gave the _formula_ for the return of slaves and
cattle sold under false representations, and appointed the _judex_ in
such cases.[969]

(4) The _cura ludorum_ of the aediles was not the mere presidency
of festivals such as was possessed by other magistrates, but the
establishment of regularly recurring games, very largely at their
own expense. The games were given jointly by the respective pairs
of colleagues,[970] the oldest festival, the _ludi Romani_, being
in the hands of the curule,[971] the _ludi plebeii_ in those of the
plebeian aediles.[972] The other festivals established from time to
time—_Megalesia_, _Cerealia_, _Floralia_—increased the burden of the
aedileship. The Megalesia apparently fell to the lot of the curule
aediles,[973] the others seem to have been given indifferently by either
pair.

The aediles are sometimes found exercising functions of criminal
jurisdiction, all of which cannot be brought into close connexion with
any of their special powers, and which, therefore, do not spring from
the ordinary _coercitio_. This criminal jurisdiction was, like the civil
jurisdiction of the curule aediles, an anomaly, for these magistrates did
not possess the _imperium_. It is to be explained partly as a survival
(for some jurisdiction of the kind had been exercised by the plebeian
aediles) and partly as the result of considerations of convenience.
Before the institution of the _quaestiones perpetuae_ there was a great
lack of criminal courts at Rome. The _quaestores_ were at hand for the
trial of grave capital crimes against individuals, and the tribunes for
political jurisdiction. What was needed was a magistracy for bringing
ordinary and lesser crimes involving a money penalty (_multa_) before the
people, and this was found in the aedileship. It is true that the aediles
were not prohibited from undertaking the prosecution of political crimes
that might be met by a fine, such as a mild case of _majestas_[974] or
the bribery of a bench of _judices_;[975] and judgment on a breach of
the peace (_vis_) was in harmony with their police duties.[976] But as a
rule it is a class of ordinary crimes, somewhat beneath the dignity of
tribunician prosecution, that we find them visiting. Such were adultery
committed either by men or women,[977] usury,[978] illegal speculations
in corn,[979] and the offence of exceeding the amount of domain-land
which the laws permitted an individual to possess.[980] The aediles
were stimulated to a career of prosecution by the singular custom which
permitted them to retain the fines collected and to apply them to any
public purpose which they pleased. We find them expended on buildings and
adornments of the city, and by the plebeian aediles on their games.[981]

_The Quaestors_

We have already spoken of the criminal investigators (_quaestores
parricidii_), whom tradition attributes to the monarchy,[982] and of the
more certain assistants of the consuls for criminal jurisdiction and
finance (_quaestores parricidii et aerarii_), who are assigned to the
early Republic.[983] We have seen that, first nominated by the consuls,
they were soon elected by the tribes,[984] and we have witnessed the
opening of the office to Plebeians when, in 421 B.C., the number of
quaestors was raised from two to four, and one of these officials was
assigned to each consul in the field.[985] About the year 267 B.C.
four more were added for the purposes of Italian administration, and
no further change is recorded until Sulla raised their number to
twenty,[986] although some intermediate increase is not improbable.

After the quaestorship had become an independent magistracy, its tenure
continued to be annual; but the consular quaestor is so much a part of
his superior that, after the prolongation of the _imperium_ had become
usual, a biennial tenure, held partly in Rome, partly in a province,
must have been the rule.[987] The rank of the quaestor was the lowest
in the _cursus honorum_,[988] and he had none of the _insignia_ of the
curule magistrates. Coins exhibit him on a straight-legged chair, with
a money-bag or money-chest, and a staff the significance of which is
unknown.

The quaestorian _provinciae_ were determined, before these magistrates
entered on their office, by a decree of the Senate,[989] and the
individuals were then assigned to their several departments by lot;
although, probably always by a special grace of the Senate, there are
instances of commanders selecting their own assistants.[990]

The departments may be grouped under the three heads of urban, military,
and Italian.

(i.) The general duty of assistance which the two urban quaestors
(_quaestores urbani_) rendered to the consuls was curtailed of one of its
attributes by the loss of their criminal jurisdiction about the middle
of the second century B.C.; for they could no longer have been needed
as delegates in _parricidium_ after the first _quaestio de sicariis_
had been established.[991] Their functions were henceforth, as they had
for some time mainly been, financial. Their old association with the
_aerarium_ gave them the custody of the keys of this treasury,[992] the
guardianship of the standards that were kept there,[993] and, above
all, of the great mass of state papers and archives which it held.
These contained laws[994] and decrees of the Senate,[995] the list of
_judices_,[996] the public accounts (_tabulae publicae_), which included
the statements of moneys voted to magistrates[997] and the reckoning of
provincial governors with the _aerarium_ in respect to direct tribute
paid them by the provincials. Connected with this financial custody were
the quaestors’ duties of collection. To them the _publicani_ usually
paid the sums which they had guaranteed for the leasing of the public
revenues.[998] The collection of fines imposed by the _judicia populi_,
and exacted by the _quaestiones_ for peculation and extortion, was also
in their hands.[999]

The quaestors also conducted sales on behalf of the treasury—not of those
large portions of the public domain which were alienated by the censors,
but of current acquisitions, such as those of slaves and booty captured
in war,[1000] and of that portion of conquered land which was brought
immediately under the hammer (_ager quaestorius_).[1001] This threefold
function of guardianship, collection, and sale gave the urban quaestors
an unequalled grasp of the state of the public revenues, and as they
were annual, while the censors—the budget-makers—were merely occasional
officials, we are not surprised to find them making financial statements
in the Senate.[1002]

(ii.) The general assistance which the quaestors were meant to render to
the consuls was extended, as we saw,[1003] in the year 421 B.C. to their
activity in the field. Each consul or praetor who assumed a military
command was given a particular quaestor (the dictator being exempted
from what was regarded as a limitation on the discretionary powers of
the magistrate), and, after the custom had grown up of extending the
_imperium_, these assistants accompanied the proconsuls and propraetors
to their provinces. The term of the quaestorship was prolonged with that
of the office with which it was associated,[1004] for the connexion
between the superior and inferior was regarded as being of almost as
personal a character as that between father and son.[1005] We shall
examine the relation more minutely when we come to deal with provincial
organisation. It is sufficient to remark here that, though the quaestors’
functions were mainly financial, they were in all other respects true
administrative delegates of the magistrates with _imperium_,[1006] and
were constantly employed on judicial and military business.

(iii.) The quaestors of Italy were probably identical with those of
the fleet (_classici_), and were a result of the organisation of Italy
which followed the war with Pyrrhus (267 B.C.). For the purposes of the
Pyrrhine war twelve quaestors were created, whose number, when they
were given permanent stations, was reduced to four.[1007] Three of
these stations can be approximately determined. One was Ostia, and the
tenure of this post was burdened with the duty of the supply of corn
to Rome.[1008] The second appears to have been the woods and forests
(_calles_) of Italy.[1009] The third was in Cispadane Gaul,[1010]
perhaps at Ravenna or Ariminum. The fourth is unknown, but was perhaps
the quaestorship at Lilybaeum in Sicily, which, after the creation of
the first Sicilian praetor in 227 B.C., would have become a provincial
post. The other three survived the Republic as spheres of Italian
administration.[1011] The functions of these quaestors were chiefly
the levying of contingents from the allies in ships and men,[1012] the
protection of the coasts, and at Ostia, as we have seen, the supply of
corn for the capital.

A further quaestorian department is mentioned by Cicero—the _provincia
aquaria_, which was probably concerned with the water supply of the
capital. It is uncertain whether this function was attached to one of the
Italian quaestorships.[1013]

_The Censors_

We have already described the institution of the censorship in 443
B.C.,[1014] and have seen that patrician rank was originally a necessary
qualification for the post. The first mention of a plebeian censor is
in 351 B.C.[1015] One of the Publilian laws of 339 B.C. is said to have
extended to the censorship the provision of the Licinian law about the
consulship, and to have enacted that one censor must be a Plebeian;[1016]
but it is not until the year 131 B.C. that we find two plebeian
censors.[1017]

The election to this office, like that to the other higher magistracies,
took place in the _comitia centuriata_[1018] under presidency of the
consul. The election was then ratified, not, as in the case of other
magistrates, by a _lex curiata_, but by a _lex centuriata_,[1019] a form
of statutory approval which marks the censors as peculiarly the officials
concerned with the organisation of the _exercitus_.

In rank the censor occupies an anomalous position. Although lacking the
_imperium_ and the right of summoning people and Senate, he is reckoned
amongst the _majores magistratus_, he has the “highest _auspicia_,”[1020]
he sits in the curule chair, wears the purple-striped toga, and (an
honour accorded to no other magistrate) is buried in the full purple of
the king.[1021] Politically the censorship was the apex of a career.
Often held in its earlier period by ex-consuls, it became practically
confined to the consular, and its enormous powers, its lofty ethical
significance, and its comparative infrequency made it the goal of those
who had already attained the chief titular dignity of the state.

Four attributes of the office are very important in determining its
character. The first gave it the necessary authority, the others created
a healthful limitation of its powers.

(1) The censorship was an irresponsible office.[1022] Its holders could
not be called to account for any act done in connexion with the _census_,
any act that was an outcome of the _censoria potestas_ ratified by
the _lex centuriata_; and although the _lectio senatus_ was a later
addition to their functions, this power seems to have been included in
the indemnity. This principle of immunity was stated in a decree of
the Senate of the year 204 B.C.,[1023] and, although often challenged
by the tribunes, was maintained until the close of the Republic. One
of the effects of the Clodian _plebiscitum_ of 58 B.C., which limited
the discretionary power of the censors in the _regimen morum_,[1024]
would have been to make them judicially responsible for a breach of its
provisions; but this law was soon repealed. The censors were also free
from the usual limitation created by the tribunician intercession; it
was clearly invalid against the particular _potestas_ exercised at the
_census_,[1025] although the _obnuntiatio_ could be employed against the
summons of the people to the _census_ and the _lustrum_, as against any
other _contio_.[1026]

(2) The limitation of tenure to eighteen months caused a break in the
continuity of the magistracy, and was a symbol that the office was
merely occasional. The censorial ordinances were valid for the whole
quinquennial period of the _lustrum_, but, whatever may have been the
original intention of the limitation of tenure, it was continued as an
effective guarantee against such enormous powers being exercised for a
continuous period of four or five years.[1027]

(3) Re-election to the censorship was forbidden, for a continuous moral
control exercised by the same men would have been intolerable.[1028]

(4) The collegiate principle operated here as in other offices, but
nowhere was the check of the veto more necessary and more healthy than in
its influence on the arbitrary moral judgments of the censors. Without
it the Senate might have been packed by a single man, and degradation
from the highest positions and on the scantiest evidence might have
been due to caprice, and followed by the unpopularity which divided
responsibility renders less intense.[1029] The collegiate relation
was, indeed, closer in this than in any other magistracy. Its holders
must be elected together, the name of the singly-appointed censor not
being returned;[1030] and, whether from grounds of convenience or from
a religious scruple, it was enacted that, if one post was vacated by
abdication or death, the holder of the other should resign.[1031]

The original and specific powers of the censors, various as they
seem, form a perfect unity. Their work is briefly that of numbering
and purifying the people. The accompaniments of this _census_ are
(i.) registration, i.e. the assignment of individuals to their proper
state-divisions; (ii.) the decision of the incidence of financial
burdens, based on an estimate of the property of individuals; (iii.) the
consideration of the moral worth of individuals with reference to their
fitness to exercise various functions of state, known generally as the
_regimen morum_; (iv.) the purification (_lustrum_), perhaps to avert
the anger of the gods from the iniquity of numbering the people, perhaps
merely a regularly recurring atonement for involuntary sin, the voluntary
sinners being first removed by the exclusion effected by the _cura morum_.

To this aggregate two functions were added: first, the _lectio
senatus_, which, although no part of the _census_, is an outcome of
the same activity and forms an integral part of the _regimen morum_;
secondly, financial duties, such as the leasing of taxes and _opera
publica_—functions that any of the supreme magistrates could perform.
They are not an integral part of the _census_, and this portion of the
censors’ business is conducted under senatorial supervision.[1032]

I. The _lectio senatus_, although in the eyes of the censors and of the
world the first of their charges, was but a late attachment to their
office. Even in the year 311 B.C. the consuls could still venture to set
aside a censorian list and return to the practice of selecting their
own _consilium_,[1033] and later still (216 B.C.) a dictator could be
chosen for the purpose of filling up gaps in the order.[1034] A _lex
Ovinia_, a _plebiscitum_ of uncertain date, may have made the censors
mainly responsible for the _lectio_, but the fragmentary paraphrase of
its contents, which has been preserved, merely limits their discretionary
power in the exercise of their choice. The censors are to choose “the
best men,” a direction which, interpreted by our knowledge of later
methods of selection, implies at the least that ex-curule magistrates
must be chosen,[1035] at the most that the whole list of magistrates
(including the plebeian aediles and the quaestors) should be scrutinised
before censorian nominees were appointed.[1036]

The framing of the Senate’s list was, in accordance with the estimate
of its importance, the first work of the censors after their entrance
on office. It was accomplished rapidly, for there was no summoning of
the Senate as a corporation, or even of individuals, as at the _census_.
Facilities may have been offered to a senator of clearing himself of
charges,[1037] but formal procedure was dispensed with, and nowhere was
the arbitrary power of the censors more manifest than in the execution of
this the gravest of their duties.

Rejection took the form of affixing marks (_notae_) against names in the
register; these names were omitted in the revised list. Then took place
the _sublectio_ of new names, and here the censure was pronounced by
omitting those who had a claim to a seat in the house.[1038] The veto,
which operated in its constantly negative manner, which enabled one
censor to retain a name omitted by the other,[1039] or even perhaps to
hinder the election of a new member selected by his colleague, and the
written grounds for censure appended to the rejected name (_subscriptio
censoria_),[1040] were some guarantees against capricious exclusion.

The automatic method of recruiting the Senate introduced by Sulla
produced a modification in the censorian selection. The magistrates seem
to have lost the power of rejecting applicants, their right of exclusion
being confined to names already on the list. It is not known whether the
censors at a subsequent _lustrum_ still retained the power of reversing
an _infamia_ once pronounced; but the usual mode in which a seat was
regained by an ejected senator was to seek popular election and to enter
the Senate through a magistracy.[1041]

II. The _census_ opened with a summons to the people to meet the censors
in the Campus Martius. It was the army as exhibited in the centuriate
list that the censors wished primarily to examine, and, consequently, it
was the members of this body that they summoned to appear in person; the
_capite censi_, with their votes in the tribes and their taxable capital,
might be represented only by the _curatores tribuum_,[1042] although
the censor could summon any member of the burgess community whom he
pleased.[1043]

The financial examination at each _census_, which had as its object
the rating for the _tributum_, was based on the returns of the last
scrutiny. There was, therefore, some means of checking the declarations
now made on oath by each head of a family, and in doubtful cases external
evidence must have been taken. The returns were made in accordance with
the instructions of a general formula (_lex censui censendo_) which the
censors had published;[1044] but their general conditions must always
have been the same. First came a declaration of the size of the property,
then of its value. But the estimate of the individual owner need not be
accepted by the censors; they often attached an exaggerated estimate to
articles of luxury,[1045] or expressed their disapprobation of social or
moral offences by an arbitrary and excessive rating of the goods of the
offenders.[1046]

All the property thus assessed must be the object of quiritarian
ownership. Originally it had been but the land and the animals associated
with it (_res mancipi_),[1047] such objects as had been conveyed by
mancipation, and for the evidence of the transfer of which from hand
to hand the mancipation witness could be summoned. But the growing
mercantile community had to take account of movables, and throughout the
historical period all objects of property, corporeal or incorporeal,
which constituted _pecunia_ in the later sense of the word, were subject
to valuation and taxation.[1048] After the time when direct taxation
ceased in Italy (167 B.C.) the valuation was no longer made for the
_tributum_; but property was still for a time the determinant of the
kinds of military service and voting rights, and the censors had still
to scrutinise the professions of the assessed, although the scrutiny was
perhaps conducted with less rigour than before.

As it was the head of the family alone that could give an account of
property, so it was to him that the censor put the requisite questions
as to the persons dependent on his care. The respondent gave not only
his own name, his father’s and his age, but made similar declarations
about his son, his daughter, and his wife.[1049] Inquiries about the
female members of the family were chiefly undertaken on moral grounds;
they were of no importance for the work of registration, whose object was
to assign voting rights and military burdens. Of the three subdivisions
of the Roman state—the _curia_, the tribe, the century—the first was
not considered by the censor, for the _curia_, like the _gens_, was
inherited. The assignment of the tribe varied at different periods. If
there was never a time in the history of the censorship when it had
been confined to landholders,[1050] the possessor of an allotment was
naturally registered in the _tribus_ which contained his plot of ground,
the non-possessor in that wherein he dwelt. But, by the year 312 B.C.,
the landless citizens had already been confined to the four urban tribes;
the radical censor of that year distributed them even over the country
tribes, to increase the voting power of this _forensis factio_;[1051]
but in 304 B.C. the landless proletariate was again confined to the
_tribus urbanae_,[1052] and hence arose the permanent distinction between
the more honourable country and the less distinguished city tribe. As
a matter of fact, this distinction between the landed and the landless
citizen could not continue when all property, personal as well as real,
became of equal value at the _census_, and membership of the tribe
became practically hereditary. But it was a heredity which might be
broken by the censor at every period of registration. He might, as we
shall see, arbitrarily transfer an individual from his paternal country
tribe to one of the four urban divisions, which, partly from historical
reasons, partly because they contained the freedmen, were accounted less
distinguished.

The distribution into centuries naturally followed the distinctions of
property and age which qualified for those bodies. The list which set
forth this distribution was still pre-eminently an army list, but the
table of seniors (_tabulae seniorum_) undoubtedly contained the names of
those who were past the age of compulsory service. The _sexagenarii_,
although the young bloods might object to their voting for a war in which
they were not to share,[1053] or electing a general by whom they would
not be led, still had the right of taking part in the deliberations of
the _comitia centuriata_.

It is obvious that the complete census of tribes and centuries included
every voting unit of Rome, and, in spite of the fact that an individual
scrutiny of the _aerarii_ may not have taken place,[1054] we must suppose
that there was a tribal list of _all_ the citizens which proved the right
to vote at the _comitia tributa_ and the _concilium plebis_. But it is
almost certain that, when an historian mentions a census of Republican
times, he is reproducing merely the army list,[1055] the vital element
in registration for a military state. All under the military age are
excluded, and it has even been concluded that in the historical lists
the _seniores_ themselves are not entered.[1056] The _proletarii_ are
potentially, and in a sense actually, members of the Roman army;[1057]
but it is very questionable whether they appear in the Republican lists.
It was, perhaps, not until the Principate that the census contained the
names of all male Romans above the military age.[1058]

III. _The recognitio equitum._—The word _equites_ primarily and properly
applied only to the citizen cavalry of 1800 men, serving on horses
supplied by the state.[1059] These formed the _centuriae equitum equo
publico_, and this class was the _ordo equester_ in the strict sense.

It is true that _equites_ had come to have a wider meaning than this.
About the close of the fifth century, individuals possessing a certain
census and not included in the equestrian centuries were permitted to
serve as cavalry with their own horses.[1060] They were no definite body,
but were selected for a particular service by the commander, if the
censors had admitted their pecuniary qualification.[1061] The consequence
was that the terms _eques_ and even _ordo equester_ were transferred to
these potential knights, and came to specify all who possessed a certain
census, which, in the Principate and probably in the later Republic,
was 400,000 sesterces.[1062] The censorship was only concerned with
this wider body of knights as the authority which proved the monetary
qualification of its individual members. The only body of _equites_ which
it recognised and treated as a corporation was that of the eighteen
centuries.

The review of the knights (_equitum census_,[1063] _recognitio
equitum_[1064]) took place, not like that of the rest of the citizens
in the Campus Martius, but in the Forum. The whole corps filed past
the censor man by man, each knight leading his horse by the bridle,
as the herald called his name.[1065] The first question considered by
the censors was that of discharge. While the knights were still the
cavalry of Rome, the service was a burden, and a burden that from the
close of the second century of the Republic was made incompatible with
a seat in the Senate.[1066] In the Gracchan period, as we have seen,
ten years’ service had to be proved before the knight could claim his
dismissal.[1067] The discharge was usually granted, if the conditions had
been fulfilled, but the censors, as a penal measure, claimed the right
of not allowing past service to count, and even of imposing additional
service at the knight’s own expense.[1068] Ignominious discharge, before
the completed term of service, was a consequence of military negligence,
as shown, for instance, by the shabby condition of the public horse
(_impolitia_),[1069] or of any moral blemish, which in other ranks of
life would have entailed dismissal from the Senate or the tribes. The
form of dismissal was “sell your horse” (_vende equum_), of retention
“lead it on” (_traduc equum_).[1070] The censors’ final duty was to fill
up the vacant gaps in the centuries. This was done by the enrolment, at
their own discretion, of qualified members from the infantry (_pedites_).

This procedure was but one example of that wider censure which was
directed against the citizen body at the time of its registration in
the Campus Martius. This scrutiny was preceded by an edict in which the
censors declared some of their moral canons—canons, we may believe, that
were transmitted from college to college and seldom departed from—while
they animadverted on new evils which they believed to be undermining the
life of the state.[1071] The acts which called forth their censure may be
conveniently considered under four heads.

(i.) Those concerned with family life and private relations. The father
as the domestic magistrate or judge[1072] was wholly responsible for
the conduct of the little world of the family, and the censor exercised
his control over women vicariously through their husbands.[1073]
The objects of censorian animadversion were the cruel punishment of
slaves,[1074] the wrong done to a client, which had been formerly
punished by pontifical law,[1075] the bad education of children, whether
it took the form of undue harshness or of over-indulgence,[1076] and
the non-performance of the _sacra_ of the clan.[1077] The censors
discountenanced celibacy,[1078] imposing additional taxation on
persistent bachelors.[1079] They discouraged _mésalliances_ such as
unions between free-born citizens and freedwomen,[1080] and checked the
legal freedom of divorce. In the usual marriage by _consensus_ a mere
repudiation on the part of the husband was sufficient to dissolve the
tie;[1081] but the censors restrained a reckless exercise of this power,
and we find a senator degraded for divorcing his wife without taking
advice of the family council.[1082] They also punished bad husbandry,
neglect of property,[1083] and luxurious living,[1084] and enforced good
faith (_fides_) in the execution of informal contracts which were not yet
protected by the sanctions of the civil law. This was especially the case
with guardianship (_tutela_),[1085] but their scrutiny extended to all
legal relations that were held to involve _bona fides_, such as those of
partnership, mandate, and deposit.[1086]

(ii.) Disqualifications were pronounced as a consequence of certain modes
of life, trades, or professions. Actors were perpetually disqualified
from all civic privileges,[1087] and gladiators were probably subject
to a similar degradation.[1088] Amongst dishonourable employments
was reckoned that of a money-lender who exacted an excessive rate of
interest.[1089]

(iii.) Breaches of political duty in any sphere called down the
censor’s displeasure. The magistrate might be degraded for cruelty or
insubordination in the exercise of his office,[1090] for the neglect of
constitutional formalities,[1091] for a misuse of the auspices,[1092]
or even for the passing of a law likely to injure the morals of
the community.[1093] The _judex_ might be punished for accepting
bribes,[1094] the soldier or officer for shirking service or for showing
cowardice or disobedience,[1095] and the voting citizen for a misuse of
his judicial or elective power.[1096] Disgraceful conduct in a court
of law might also entail the censure. It visited the collusion of a
prosecutor with the accused or malicious prosecution in a criminal case
(_praevaricatio_, _calumnia_),[1097] and attended false witness and false
oaths. Since there was no secular punishment for perjury, its visitation
was peculiarly the work of the censors.[1098]

(iv.) The censors sometimes pronounced disqualifications as the result of
a judicial sentence.[1099] Theft and other private delicts were attended
with infamy, and sometimes the censure was independent of the judgment of
a court.[1100] The censure, which followed a criminal condemnation, might
be either one of the censors’ own creation[1101] or the mere fulfilment
of a disqualification already enjoined by law. Of the second kind were
the disabilities pronounced by the _lex Cassia_ of 104 B.C.[1102] or by
the _lex Calpurnia de ambitu_ of 67 B.C., the latter of which enjoined
perpetual exclusion from the Senate as a result of condemnation.[1103]

IV. The effects of the censorian _infamia_ depended partly on the rank
of the person disqualified, but were always regulated to some extent
by the gravity of the offence. The senator was removed from the list,
the knight from the equestrian centuries, the commoner is said _tribu
moveri_ or _aerarius fieri_, or both.[1104] “Removal from the tribe”
has two meanings: either that of the milder penalty of relegation from a
higher to a lower tribe, or of the severer punishment of total exclusion
from the tribes, while _aerarium facere_ implies exclusion from the
centuries.[1105]

V. _The lustrum._—After the ranks of the various orders had thus been
purified, the lustral sacrifice (_lustratio_) was offered for the whole
assembled army in the field of Mars.[1106] The ox, the sheep, and the
pig (_suovetaurilia_), which were led round the host and then sacrificed
to the god, were at once an atonement for sin and a thanksgiving
for blessings prayed for at the preceding _lustrum_ and since
vouchsafed.[1107] The completion of this ceremonial marked the close of
the censor’s functions, at least of those connected with the _census_.

VI. _Other functions of the censors._—The necessity for the division of
functions, which had created the censorship, led to financial duties,
analogous to but unconnected with those of the _census_, being taken from
other magistracies and attached to that office. These were the leasing
of the public revenues, the maintenance of public property, and the
administrative jurisdiction connected with these duties.

The Roman state, in its administration of the public property, had always
favoured the system of contracting out. The system was that of purchase
or lease by middlemen (_publicani_) of a prospective source of revenue,
which the individual or the company farmed at its own risk or profit.
Sometimes the middleman was himself the occupant (_possessor_) of, or the
contractor (_conductor_) for, the source of wealth from which the revenue
was derived. This principle was applied to limited sources of wealth or
those requiring particular industrial appliances, such as fisheries,
salt-works, mines, and forest-land. This system of direct farming was
sometimes applied to domain-land both in Italy and the provinces. The
_ager Campanus_ was dealt with in this way, and the royal domains of
the kings whom Rome had supplanted were, with the confiscated territory
of Corinth, let on long leases to _publicani_,[1108] who doubtless in
most cases sublet these territories to smaller holders. Such contracts
were put up to auction, and their terms were fixed by a _lex censoria_
dictated by the censor as the representative of the state. This _lex_,
besides specifying the revenue which the lessee was required to pay, also
fixed the conditions under which the contract was to be undertaken.[1109]

The second kind of tax-farmer is a true middleman.[1110] The _publicanus_
here is not himself employed in working the source of wealth; he is not
a _possessor_ or occupant, but one who has bought from the state the
right to collect revenue from such an occupant. The right is put up to
auction and bought for a fixed sum, for which the company of successful
contractors furnishes security. Their gains depend on the prospective
surplus of the revenue which they propose to farm over the sum which
they have agreed to pay. This was the method of dealing with the public
land which had been left open for occupation by squatters (_occupatorius
ager_). It was either tilled land (_ager_) enjoyed by a _possessor_, or
pasture land (_silva pascua_, _saltus_) over which the _pastor_ grazed
his flocks. Both occupants were tolerated by the state on condition that
they paid a fixed due for their precarious tenure.[1111] The _publicani_
were the men who had the right to collect this _vectigal_ from the user
of the land, and the dues which they might collect were determined by
the _lex dicta_ under which the censor sold the right.[1112] A further
class of revenues collected in this manner were the harbour dues
(_portoria_). They were based on the same leading idea of the use of
public ground by a private occupant; he pays for this use, and the right
of collecting this _vectigal_ within a given area is sold to a company of
_publicani_. A great extension was given to this system of tax-farming by
its application to provincial administration. The Roman translated the
tithe (δεκάτη, _decuma_) which he found in Sicily and Asia into his own
familiar _vectigal_, but for a time he adhered to the existing conditions
of local collection, and in Sicily the tithes were sold in the island
itself in accordance with the _lex Hieronica_.[1113] Asia was the first
province to which the experiment of a collective sale of the taxes in
Rome was applied.[1114] The system was apparently extended to the Asiatic
provinces organised by Pompeius, and the censorship was the normal
vehicle through which the revenues of a vast kingdom could be purchased
by a company of Roman speculators.

The censors exercised great discretionary powers in the conclusion of
these contracts, but a revision of such as had already been concluded
belonged not to them but to the Senate.[1115] Their merely executive
capacity is an explanation of the fact that they could not alienate
the property of the Roman people. Wherever the sale of public lands or
buildings by these officials is described, we must assume the concurrence
of the people or the Senate.

The extent of the censors’ control of the property of the state made
their registers (_tabulae_) assume the proportions of a budget, which
must have been the guide of the state’s expenditure. Although only
quinquennial, this budget was tolerably stable, for the varying returns
(as opposed to the invariable revenues, such as the fixed tribute of
some of the provinces) were estimated for the interval that elapsed
between one _lustrum_ and another. An unusual increment, such as that
from booty, which might appear in any year, would have formed the ground
for a statement made by the quaestors, the permanent officials of the
_aerarium_.

But, although estimates were made by the censor, he had little to do
with general expenditure. He had no concern with the provinces and the
army, and was limited to the maintenance and extension of the public
property of the state. He was either a maker or a repairer of _opera
publica_, such as roads, aqueducts, temples, and public buildings.[1116]
Such buildings or repairs were leased out to contractors, the state
here becoming the debtor of a private company and seeking to obtain the
lowest estimate for the work.[1117] For the purpose of repairs or new
works a credit (_pecunia attributa_) was granted by the Senate, which
directed the quaestors to employ this money at the discretion of the
censors.[1118] Within the limits of this sum they could act at their
own discretion with respect to the modes of expenditure, although they
doubtless took the advice of the Senate. These grants and the purposes
to which they were applied were known by the strange name of _ultro
tributa_,[1119] a designation which may be a relic of a time when such
_opera_ were not leased, but were burdens (_munera_, _moenia_), owed as a
voluntary tribute by the community.[1120]

These financial functions of the censors gave rise to an administrative
jurisdiction. In their guardianship of public places they decided where
private buildings had encroached on state property,[1121] or where
public buildings had been usurped by _privati_.[1122] They may at times
have pronounced on the pecuniary penalties meant to enforce the rights
of public property, for they sometimes exercised their coercive power
and proclaimed varying penalties (_multae_) to compel obedience;[1123]
but such quasi-criminal jurisdiction must have been exercised more
frequently by the aediles, and, where the amount of the fine necessitated
the appeal, it must have been pronounced and defended by the latter
magistrates. Jurisdiction bearing a resemblance to that of civil law was
concerned with the _ultro tributa_, when the question arose whether a
contract had been carried out satisfactorily or not, and with disputes
about the public land, the controversy in the latter case lying most
frequently between the _publicanus_ and the _possessor_,[1124] but
sometimes, no doubts between one who claimed to be an owner on the one
hand and the middleman or an occupant on the other. The form of this
jurisdiction varied. Sometimes, when the dispute lay between the state
and an individual, as in the controversies about the _ultro tributa_,
the sentence was the result of a purely magisterial cognisance, although
we may suppose that the censor could, if he pleased, give a _judex_ in
such a case. Where the dispute lay between two _privati_, even though one
of them had the quasi-official position of a _publicanus_, the granting
of a _judex_ or _recuperatores_ was, at least in the later Republic,
usual.[1125]

_The plebeian Magistrates_

The accidental preservation of the tribunate, through the failure of the
decemvirate to do its work, and consequently of the plebeian assembly
in all its purity, led to the persistence of a magistracy chosen only
by and only from the Plebs. But the plebeian aedileship was welded with
the curule office of the same name into practically a single magistracy,
which has already been discussed;[1126] while the tribunate is so
intimately bound up with every phase of the constitutional development
and organisation of Rome, that every one of its leading functions has
already been considered.

We have seen the method of its institution and the singular religious
basis on which its power rested,[1127] and we have observed the numbers
of the holders of the office rising from two to four, and finally to
ten.[1128] The right of eliciting resolutions from the Plebs and the
coercive power and jurisdiction possessed by this office have also
been described.[1129] We have further dwelt on the anomalous duality
of the office, and seen how in a certain sense it is not a magistracy,
the tribune lacking both the requisite _insignia_[1130] and the right
of taking _auspicia impetrativa_,[1131] but how, on the other hand,
it becomes practically a magistracy of the people, when functions
originally purely plebeian come to be used in the interest of the whole
state. The right of acting with the Plebs gave the tribunes the power of
initiating legislation when _plebiscita_ had been raised to the level of
_leges_;[1132] in their elective capacity they not only presided over the
appointment of their successors and of the plebeian aediles, but through
the Plebs they might not only create a minor magistracy such as the
triumvirate _agris dandis assignandis_,[1133] but in the closing years
of the Republic actually conducted the election of such officials.[1134]
Their power of prohibition and their right of veto,[1135] limited for a
moment by Sulla but soon restored in all its plenitude,[1136] became,
when constitutionally employed, a guardianship of the whole state against
the illegal or unconstitutional proceedings of other magistrates, and
formed the chief basis of the Senate’s authority. Their association with
the Senate, from being merely prohibitive, grew to be positive,[1137] and
they finally shared the presidency of that body. Lastly, their powers
of coercion and jurisdiction widened into a judicial control of the
magistracy; they were the prosecutors of faulty officials, and, up to the
time of the development of the _quaestiones_, represented the chief means
which the state possessed of enforcing criminal responsibility on its
executive.[1138]

_The minor Magistrates_

Prominent amongst the minor magistrates (_minores magistratus_)[1139]
stands a group known finally, and perhaps in Republican times, as the
_viginti-sex-viri_.[1140] This group was merely a collection of small
colleges and not itself a _collegium_. It is probable that most of its
members were originally nominated by superior magistrates; in later times
they were all elected in the _comitia tributa_, although doubtless a
separate elective act was required for each college.

(_a_) The _IIIviri capitales_, sometimes called by the less technical
name of _IIIviri nocturni_, probably from their duty of extinguishing
fires, were introduced as a standing institution about the year 289
B.C.[1141] Their general function was that of assistance to the other
magistrates in criminal jurisdiction. After the judgment had been
pronounced, they guarded the prisoners and carried out the death
sentence.[1142] Their duties preliminary to a criminal trial were the
preventive imprisonment of the accused and the conduct of a first
examination after a criminal charge had been made.[1143] They also heard
ordinary police-court charges, such as those of vagrancy or nocturnal
disturbance of the peace,[1144] and they exercised police duties in the
town, such as that of preserving order in the streets.[1145] When acting
as magistrates who could give a final judgment, their dealings seem to
have been with slaves and foreigners. There is no evidence that they
possessed any right of sentencing citizens or any higher jurisdiction
which would bring them into contact with the people.

(_b_) The triumvirate of the masters of the mint (_IIIviri
monetales_),[1146] originally an occasional, first becomes a standing
office about the time of the social war.[1147]

(_c_) Six sanitary commissioners, acting probably as subordinates to
the aediles and bearing the titles _IVviri viis in urbe purgandis_ (or
_viarum curandarum_), _IIviri viis extra propiusve urbem Romam passus
mille purgandis_, are first mentioned in Caesar’s Municipal Law (45
B.C.). The first looked to the cleansing of the streets within Rome, the
second perhaps of those within the radius of a mile from the walls.[1148]

(_d_) The _Xviri stlitibus judicandis_ have a strange history; for, from
being simple _judices_, they become minor magistrates of the people.
They are doubtless the decemvirs who were rendered sacrosanct by the
Valerio-Horatian laws of 449 B.C.,[1149] the reason for this protection
being that they were the jurors who decided in cases of freedom,
that ultimate plebeian right which, as the story of Verginia shows,
might sometimes be assailed. By Cicero’s time they are still judges
in _liberales causae_, but they have risen to the rank of independent
magistrates.[1150]

(_e_) The _IIIIviri praefecti Capuam Cumas_[1151] were the elected
delegates who represented the jurisdiction of the praetor in the
_municipia_ and colonies of the Campanian district. Their functions may
be more appropriately discussed when we are dealing with the organisation
of Italy.

Certain judicial and military posts were also filled by popular election.
The paucity of criminal judges at Rome after the institution of the
_quaestiones perpetuae_[1152] led to the appointment of an annual
president of the chief court which tried ordinary crimes—that, namely,
which dealt with murder and kindred offences (_quaestio de sicariis_).
The magisterial position of these _judices quaestionis_ is shown both by
the fixed qualification—it is generally, perhaps always, an ex-aedile
that is appointed[1153]—and by the fact that, like the magistrate who
takes the oath _in leges_,[1154] these _judices_ swear to observe the
special law which they are administering.[1155] They were probably
elected by the people in the _comitia tributa_.[1156]

Subordinate military posts were also in the people’s gift, and we have
already noticed how the tribunate of the legions became in part a
quasi-magistracy.[1157] In the year 311 B.C. the appointment of consular
delegates for the command and maintenance of the fleet was also entrusted
to the tribes.[1158] These _IIviri navales_ were not annual officials,
but, in obedience to the occasional character of the Roman fleet, came
into existence when a war required its creation. The office seems to have
become extinct by the second century B.C.

More occasional still was the creation by the _comitia tributa_, in later
times occasionally by the _concilium plebis_,[1159] of minor magistrates
with extraordinary functions. Such were the officials for conducting a
colony (_coloniae deducendae_) for the assignment of land (_agris dandis
assignandis_), or for the dedication of a temple (_aedi dedicandae_). To
this category belong the occasional _curatores_ for the corn-supply and
the roads (_annonae_, _viarum_).

CHAPTER V

THE PEOPLE AND ITS POWERS

We have already noticed the duality of procedure by which the powers of
the people were exercised, and seen that every popular act was dependent
on a _rogatio_.[1160] But different spheres of popular activity may
conveniently be distinguished. They may be divided into (i.) legislative
or quasi-legislative acts; (ii.) elective; (iii.) judicial.

(i.) With respect to legislation proper, the Roman, like every other
government which recognises the theory of parliamentary sovereignty and
has no provision for a constituent assembly, drew no distinction between
constitutional and other laws. But in our enumeration we may conveniently
distinguish between those ordinances which altered the structure of the
constitution and affected public rights, and those which dealt merely
with the private relations of the citizens to one another.

In constitutional legislation the power of the people was unlimited.
They could create new parliaments, as they did the _comitia tributa
populi_;[1161] they could delegate full powers of legislation
to parliaments already existing, as they did to the _concilium
plebis_.[1162] They could devolve powers almost amounting to sovereign
rights on an individual, as they devolved them ultimately on the
Princeps. They might suspend the constitution and set up a provisional
government, as they did when they gave constitutive powers to the
decemvirs or to Sulla.

They might also observe or create rules which limited their own power
of utterance. A result of observance of a rule is a _formula_ which
appears in Roman laws declaring their operation invalid in so far as they
conflict with any fundamental obligation—the _fas_ or _jus_ which lies
at the background of the state and which the people themselves dare not
infringe. The scruple was expressed in the saving clause—

SI QUID JUS NON ESSET ROGARIER, EJUS EA LEGE NIHILUM
ROGATUM.[1163]

Primarily this clause guarded a law against being a breach of a religious
obligation;[1164] but, as interpreted by Cicero, it was a profession of
respect even for certain ultimate secular rights—the rights for instance,
to the possession of citizenship.

The creation of limitations may be instanced by the provision of the
Twelve Tables, which forbade enactments to the detriment of individuals
(_privilegia_),[1165] and by a principle—perhaps rather a rule of
procedure analogous to the formalities of legislation—which forbade laws
on different subjects to be passed _en bloc_ (_per saturam_), a provision
re-enacted by a _lex Caecilia Didia_ of 98 B.C.[1166]

The creation of new magistracies was also within the power of the
people, and, originally, the extension of an office beyond its proper
term. In the year 327 B.C., at the commencement of the second Samnite
war, the consul Q. Publilius Philo had his _imperium_ prolonged by a
_plebiscitum_;[1167] although, as early as 308 B.C., in the prorogation
of the command of the consul Q. Fabius Maximus, the Senate alone is
mentioned as giving its sanction.[1168]

The establishment of special judicial commissions to decide without
appeal, in cases where the ordinary authorities were felt to be unable
to cope with crime or conspiracy, was, in the strict theory of the
constitution, entirely in the people’s hands. Commissions of this kind
are found in 187,[1169] 172,[1170] and 141[1171] B.C. In all these cases
there was co-operation between the Senate and people, and it is not until
the revolutionary period that the people ventures on its own authority to
establish a commission for criminal investigation.[1172]

The public rights of the individual were also under the control of
the _comitia_, and the conferment of citizenship was solely the
people’s gift. As originally the patrician _comitia_ could alone coopt
patricians,[1173] so in later times the assembly of the whole Populus
could alone admit new partners to its rights. Civic rights could be
conferred on individuals or communities, in whole or in part, and the
Plebs was for this purpose equally competent with the Populus.[1174] A
mediate grant of the citizenship could be made by the conferment of the
power by the people on a magistrate entrusted with the founding of a
settlement, as when the _lex Appuleia_ of 100 B.C. granted the right to
Marius to raise three persons to the citizenship in any colony which he
planted.[1175] Citizenship might also be conferred by an imperator for
good service in the field; but the power had to be given, or perhaps in
some cases the grant retrospectively sanctioned, by the people. Such a
power was given by law to Pompeius after the war with Sertorius;[1176]
but Pompeius may provisionally have conferred the citizenship during the
campaign. Marius granted the boon on the field of battle;[1177] he may
have already had the power given him by the people,[1178] or he may have
calculated on the subsequent ratification of his act.

Deprivation of the citizenship of a community, the legality of which by
any power was questioned in the later Republic,[1179] could be effected,
if at all, only by the people, and the people might in this particular
be represented by the Plebs. It was this body which pronounced on the
fate of Capua in 210 B.C., and their decision entailed a criminal
condemnation, the penalty of being sold into slavery. The people,
however, did not itself pronounce deprivation of citizenship, but left
the fate of the Capuan burghers to the Senate.[1180]

The people might also give the right of voting to those who already
possessed citizenship without it. This was so entirely a popular gift
that even the previous deliberation of the Senate was not considered
necessary for such a conferment. When a tribune proposed to grant the
right of suffrage to the _municipia_ of Formiae, Fundi, and Arpinum in
188 B.C., he was met by the veto of four of his colleagues, who insisted
that the Senate’s judgment should first be taken. But, yielding to
instruction on the true principle of such gifts, they eventually withdrew
their opposition.[1181]

The deprivation of voting power—_tribu movere_ in the extreme sense—seems
to have been retained by the censor,[1182] although a protest against
its use to disfranchise a whole class was raised in 169 B.C.[1183]. The
people alone could impose a new burden on itself, and taxation belonged
wholly to the _comitia_.[1184]

Passing to legislation on private matters, we find that any fundamental
change in the legal relations of citizens to one another must be effected
by the people. The law of the Twelve Tables is itself a _lex centuriata_,
and we need only think of laws, such as those on usury, or the _lex
Voconia_ on inheritance, as types of a multitude of others. In the matter
of civil procedure also a fundamental change, such as that permitting
the use of the _formula_ in place of the _legis actio_ in cases falling
under the _jus civile_, required legislation.[1185] Yet we feel that it
is only a question of degree whether such changes are effected by the
people or by the authority of individuals. In matters of substantive law
immense changes were brought about by the interpreting authority of the
praetor;[1186] while in procedure also much was left to the discretion
of pontiffs, magistrates, and jurists. The same principle of division of
authority applies to police regulations. Wide as were the coercive powers
of the magistrates, sweeping infringements on individual liberty, such as
those created by the sumptuary laws, were the work of the people.

We may pause here to examine the form of a _lex_, and especially that
portion of it which secured its validity—its sanction. A complete
law contained three parts: (1) its preamble (_praescriptio_), which
described the formal circumstances of its enactment;[1187] (2) the text,
in which a minute and exhaustive formalism was rigorously preserved;
(3) the sanction, which contained the pains and penalties pronounced
against those who violated the provisions of the enactment. A _poena_,
however, was not of itself sufficient to constitute a perfect law. A _lex
perfecta_ was one which declared an act invalid and imposed a penalty
for disobedience. The imposition of a penalty without the declaration of
invalidity constituted a _lex minus quam perfecta_.[1188] A law without
a sanction was _imperfecta_.[1189] The method of repeal most frequently
practised at Rome was rather that of supersession than of the declaration
of the nullity of the former enactment. Hence the sanction of laws often
gives impunity to those who by obedience incur the pains and penalties
pronounced by some previous measure.[1190] Repeal might be either
complete or partial, and a series of technical terms was evolved to
express this difference.[1191]

The attempt of certain laws to secure finality by prohibiting repeal
was necessarily futile, as opposed to the whole theory of parliamentary
sovereignty.[1192] It is possible, however, that the _leges sacratae_
of the early Republic, such as that which made the tribune sacrosanct,
were regarded as unalterable. The _execratio_, which was their sanction,
may have been regarded as a fundamental religious obligation, and have
been held, as such, to be one of those sacred rights which, as we have
seen,[1193] no law professed to infringe.

The sovereign privilege of exempting individuals from laws was naturally
possessed at first by the legislative body itself; but by a curious
revolution, which we shall trace elsewhere,[1194] this singular privilege
became a prerogative of the Senate.

The people’s control of external matters, although it is still, from
a juristic point of view, legislative, bears a closer resemblance to
the administrative functions of a Greek or modern government. Here the
magistrate was empowered to act in all matters of detail, and we shall
see how this magisterial sphere was usurped by the Senate. The people
had only the control of the fundamental relations of Rome with foreign
states. Their activity was confined to the declaration of war, the making
of treaties, and the giving of charters.

A declaration of war was, according to Roman notions, strictly necessary
only when treaty relations, or even at times relations which approximated
to those of a treaty,[1195] had been broken. Such a declaration could
be made only by the people.[1196] But the international point of view
was not the only dominant one in this matter. The people must have been
consulted in many cases where there were no treaty relations, and the
reason would have been simply the advisability of its declaring its will
on a matter which might be of vital importance to the community. The
_comitia centuriata_ seems invariably to have represented the people in
this capacity.[1197] With respect to the conclusion of international
relations, we shall touch elsewhere on the controverted question[1198]
whether the magistracy had the right of binding the popular conscience
by a sworn treaty, or whether this required the consent of the people.
The survival of the controversy into as late a period as that of the
Jugurthine war seems to prove that the federative power was once a
magisterial privilege; and the fact is also attested by the inclusion in
agreements made by commanders of a clause specifying that the agreement
should only be valid if ratified by the people.[1199] In the middle
Republic there was no question that treaty relations were the prerogative
of the people,[1200] and, unlike the case of the declaration of war, the
Plebs is here included in the conception of the people.[1201] By the
nature of the case it could only be the outlines of an agreement that
were thus laid before the _comitia_, and details of settlement were left
to the commander, assisted by a commission.[1202] The organisation of
a province and the _lex provinciae_ that followed the subjection of a
district were not usually interpreted in the light of treaty relations;
they were the work of a commander and a senatorial commission. On the
other hand, cities with treaties (_civitates foederatae_) and cities
with charters (_civitates liberae_) have their rights given them by the
people. In the one case the rights are guaranteed by an irrevocable
agreement sworn to by the _fetiales_; in the other by a revocable charter
(_lex data_), which as late as 71 B.C. is still an utterance of the
people (_lex rogata_).[1203] We shall see, in dealing with the Senate,
that, even in this matter of granting treaties or charters to separate
states, senatorial authority encroached on that of the people.

(ii.) We have already seen how in theory the popular power of election
was a modification of a principle of nomination;[1204] after its
recognition the principles regulating it were practically those of
legislation, the magistrate questioning and the people commanding. The
representation of the dual community is here rather more marked than in
the case of legislation; for while a _plebiscitum_ is often spoken of as
a _lex_, no one credits the tribune with the position of a _magistratus
populi_, and however wide his powers may have become, he always remains
in theory the head of the plebeian community. The preliminaries to
election necessary to the candidate for office have already been
considered,[1205] and the further process of election will be dealt with
when we describe the procedure of the _comitia_ as a whole.

(iii.) The origin of the jurisdiction of the people is, as we have seen,
obscure; but it is probable that it did not spring wholly from the
_provocatio_,[1206] and even in cases where it did, the appeal tended
to become extinct, from the fact that a magistrate who recognised the
restrictions imposed on his _imperium_ by law would not pronounce a
sentence, but would bring the case immediately before the people. A
trial before the people (_judicium populi_) took place when a magistrate
recognised the limitations on his power; the _provocatio_—an extremely
rare occurrence in the later Republic—was required to start the same
procedure when the magistrate refused to recognise these limitations.

The judicial competence of the different magistrates and _comitia_ was
determined partly by law, partly by custom. Two fundamental principles
were recognised:—

(1) That capital cases should be reserved for the centuries. To this
there is the exception furnished by the special capital jurisdiction of
the Plebs.[1207]

(2) That a case initiated by a magistrate could be tried only in that
assembly which the magistrate was competent to approach. To this
principle there were two exceptions: first, the consular delegates—the
quaestors and the _duumviri perduellionis_—although possessing no _jus
agendi cum populo_, yet guided the assemblies in which an appeal from
their decision was made;[1208] and secondly, the tribune, when conducting
a capital prosecution before the _comitia centuriata_, approached, and
perhaps had the presidency of, this body.[1209]

But, as a rule, the official character of the magistrate who conducts the
prosecution, and the nature of the penalty which he proposes, are signs
of what assembly passes its final judgment on the case.

The capital jurisdiction of the consuls, expressed through the quaestors,
was exercised in the _comitia centuriata_; an appeal against the
_coercitio_ of consuls and praetors, when the fine which they imposed
passed the limit of the _multa suprema_[1210] came before the _comitia
tributa populi_. The jurisdiction of the aediles[1211] was always
exercised before the tribes; the curule aediles as _magistratus populi_
must have brought their case before the _comitia tributa populi_; the
plebeian aediles, who, as magistrates of the Plebs, had no right of
approaching the people, appeared before the _concilium plebis_. With
regard to the tribunes, where their jurisdiction was capital, it may in
certain cases have been exercised by the _concilium plebis_, but usually
necessitated an appearance before the _comitia centuriata_,[1212] where
it was pecuniary, the tribune would invariably have brought the case
before his own assembly of the Plebs.

The procedure in a _judicium populi_ consisted of two stages. In the
first, the magistrate who intended to impose a sentence which was beyond
the limits of his personal jurisdiction held a preliminary examination
(_anquisitio_).[1213] This is conducted with the fullest publicity before
an informal assembly or _contio_ which he has summoned. This preliminary
investigation is repeated three times, on days not necessarily
consecutive. The magistrate is represented as a prosecutor, and his
expressions of opinion at these meetings are spoken of as _accusationes_.
His final judgment, consequent on the proceedings of the third _contio_,
is a bill (_rogatio_), which he gives notice of his intention to bring
before the _comitia_. The penalty proposed in this bill need not be that
originally suggested, for the investigation may have led the magistrate
to amend his original proposal.[1214]

The legal interval for promulgation—three weeks—then elapsed, and at its
close the proposal was brought by the magistrate before the _comitia_. It
was then either accepted or rejected (necessarily without amendment) by
the assembled people. This formal assembly (_comitia_) was, in judicial
as in legislative acts, preceded by a _contio_; and the magistrate’s
final statement of his proposal before this _contio_ is spoken of
as his “fourth accusation” (_quarta accusatio_).[1215] If, through
any chance, such as evil auspices, the bill was not carried through
the _comitia_, a fresh promulgation, with another interval of three
weeks, was necessary for a revival of the trial. This necessity made a
repetition of a prosecution by the same magistrate on the same charge
very infrequent.[1216]

Hitherto we have been treating the case of a _judicium populi_ consequent
on the magistrate’s recognising the limitations on his power. But there
is a possibility of his refusing this recognition, and in this case
the matter can be brought to the people only by means of an appeal
(_provocatio_) lodged by the accused. This contingency was, in the middle
and later Republic, unusual but not unknown, for the jurisdiction of the
_duumviri perduellionis_ was, as we know from the case of Rabirius,[1217]
regulated at times in such a manner that an appeal to the people was an
essential part of the procedure.

In such a case there were two magisterial investigations instead of
one. The first was the _quaestio_, as a result of which the magistrate
had pronounced the appellable sentence; the second was the _anquisitio_
before the people preceding the decision in the _comitia_. It must
occasionally have happened that different magistrates conducted these two
stages of procedure; for if an individual appealed against the decision
of a magistrate in a province or in the field, this magistrate might
himself be unable to conduct the case at Rome.

The people is represented from a very early time as rescinding its own
sentences.[1218] This rescission was simply the repeal of a law, and was
perhaps not regarded originally as the revision of its own sentence by
a court. No provision was made that the particular assembly which had
pronounced the sentence should repeal it. This was, indeed, sometimes
the case. Popilius, for instance, who had been held responsible for
the judicial murders following the fate of Ti. Gracchus, was both
banished and restored by _plebiscita_.[1219] But, on the other hand,
Metellus, “interdicted” by a consular bill, which must have been passed
at the _comitia centuriata_,[1220] was restored by the _rogatio_ of a
tribune,[1221] while Cicero himself, banished by a tribunician enactment,
was recalled from exile by a consular law passed at the _comitia
centuriata_.[1222]

A further step in the exercise of this power was taken when attempts
were made to rescind the decisions of the _judices_ of criminal
commissions by decrees of the people. This was first attempted in 88
B.C. by the tribune P. Sulpicius Rufus, who carried a _plebiscitum_
for the restoration of exiles who had been condemned by the Varian
commission.[1223] Other tentative steps in the same direction led up to
Caesar’s bill of 49, by which he effected the restoration of those who
had been condemned under the Pompeian laws of 52 B.C.[1224] The instances
of this period generally illustrate the rescission of the decrees of
special commissions, which were themselves political weapons evoked by
party conflict, but M. Antonius when tribune is said to have effected the
restoration of a man who had been condemned for an ordinary crime,[1225]
and, therefore, presumably by an ordinary _quaestio perpetua_, and
it seems clear that by Cicero’s time this power of restitution by
the _comitia_ had come to be regarded as practically one of pardon.
Each of the three legislative assemblies was competent to “restore”
(_restituere_). The proposals are usually tribunician, but Caesar also
employed praetorian rogations (probably before the _comitia tributa_) for
the purpose.[1226]

Two powers analogous to that of the rescission of a sentence are the
remission of outlawry and amnesty.

The outlawry referred to is not that following on _aquae et ignis
interdictio_, which was an act of the people and the confirmation of
a criminal sentence, but that consequent on a decree of the Senate,
which had pronounced individuals to be _hostes_. Although we might
have expected that the Senate, which passed, would be the body to
rescind such a decree, we find the belief that the restitution of the
outlawed required a _lex_ or _plebiscitum_. Marius pretended that such
a permit was necessary for his entrance into Rome in 87 B.C.,[1227] and
Octavian in 43 B.C. had a law passed which rescinded the outlawry of
Dolabella.[1228]

Amnesty is an act which implies that no trial and no condemnation,
whether pronounced by a court or other body, have taken place; it gives
immunity from the consequence of criminal acts that have not yet been
judged. This, however, is a prerogative, not of the people, but of
the Senate. It was a decree of this body that gave an immunity (not
subsequently respected) to Caesar’s murderers in 44 B.C.,[1229] and a
similar act in 33 B.C. granted an amnesty to senators who had during the
civil war raised troops at their own cost.[1230]

The occasional grounds of invalidity of these legislative or
quasi-legislative acts of the people have already been incidentally
considered. We have spoken of the conditions of the auspices and the
intercession,[1231] neglect of either of which made a law _ipso jure_
invalid, and the same consequence followed a breach of the formal rules
which the people had made for its own guidance, such as the rules of
promulgation which we shall soon discuss, or the provision against the
union of heterogeneous measures in the same bill.[1232] In the earlier
period of Republican history such invalid ordinances were, when they
took the form of election, subjected to a procedure resembling repeal,
and there are many instances of magistrates _vitio creati_ forced to
abdicate their office, a renewal of the elective procedure following
on their abdication;[1233] and even in the case of laws which offended
against fundamental principles of the constitution, it was at all times
considered safer to secure their formal repeal.[1234] But the more
logical idea of absolute nullity, which required no repeal, subsequently
prevailed, and we shall find that it is the Senate which, as the guide of
the executive power, pronounces enactments to be invalid in consequence
of formal flaws.

When we turn from the “people” in general to its manifestations in
the separate _comitia_ and in the _concilium_ of the Plebs, we find
that, although historically we are dealing with different parliaments,
practically we are treating the Roman community engaged with different
orders of the day under different formal rules. The people require to be
organised in one way for one function, in another way for another,[1235]
but under the changing forms there is a unity of personnel which forbids
us regarding the different assemblies as different sovereigns.[1236] The
only disturbance to this unity is found in the fact that the Patricians
were always excluded from the _concilium_ of the Plebs.[1237]

The _comitia curiata_, the oldest sovereign in Rome, was a mere shadow of
its former self. Its main constitutional function was that of passing
the _lex curiata_, which was necessary for the ratification originally
of the _imperium_[1238] and, with the creation of fresh patrician
magistracies, of the _potestas_ which these involved.[1239] Yet although
in theory no magistracy was properly constituted (_justus_) until its
holder had received the ratification of the _curiae_, we know that in
the case of those with _imperium_, and we may conclude that in that of
others, most of the ordinary functions could be exercised without this
sanction. It was only the full exercise of the _imperium_, whether in
jurisdiction, in military command, or in the transmission of office,
that was in suspense until the _lex_ had been elicited. Without it the
praetor could not give justice from his tribunal,[1240] the consul could
not hold an assembly for the creation of his successor,[1241] and whether
as magistrate or pro-magistrate could not exercise the full _imperium_
in the field,[1242] until the ambiguous wording of the _lex Cornelia de
provinciis ordinandis_ made the requirement in this last particular a
doubtful point.[1243]

For the purpose of this conferment the _comitia curiata_ was in Cicero’s
day often represented by but thirty lictors,[1244] and the same scanty
attendance may have sufficed for the other formal acts which it retained
from antiquity. These are the acts of the _comitia calata_.[1245] The
public will and testament made at this assembly was extinct at the close
of the Republic; but the _comitia_ still met, under the presidency of the
_pontifex maximus_, for the inauguration of the _rex sacrorum_ and the
_flamines_, and under the same guidance for the _detestatio sacrorum_
made by one who passed from his _gens_ either by an act of adrogation or
by transition from the patrician to the plebeian order.[1246]

The _comitia centuriata_, once known as the “greatest of the comitia”
(_comitiatus maximus_),[1247] not only from its importance as expressing
the sovereign will, but from the possibility of enforcing the attendance
of the assembled army, always retained something of its military
character and its association with the _imperium_. Its summons and
presidency belong by right only to the magistrates with _imperium_. The
consuls are its normal presidents for elections and for laws; the praetor
approaches it for purposes of jurisdiction, and the interrex for the
election of a consul. The election of magistrates with _imperium_ and of
the censors was confined to this body, and we have already seen how its
supreme judicial authority was asserted and infringed.[1248] The army
alone could declare war,[1249] but its legislative power, though never
lost, was infrequently asserted after the recognition of sovereignty in
the two assemblies of the tribes which were more easily summoned and
organised.

But not only did the tribe assemblies infringe the power of those of the
centuries, they became the later model of the latter, and the tendency
to detract from the influence of wealth was shown in the reorganisation
of the _comitia centuriata_ on a tribal basis.[1250] The date of this
change is unknown; but, as the redistribution of the centuries in its
final form assumes the existence of thirty-five tribes, the alteration
may not be earlier than the year 241 B.C. The leading principle of the
new arrangement was that the five classes were distributed over all the
tribes in such a manner that there were two centuries of each class—one
century of _seniores_ and one of _juniores_—in a single tribe. Each
class thus had two votes in a tribe and seventy votes in all. The
eighteen centuries of knights still stood outside the tribe; so did the
four centuries of _fabri_, _accensi_, _tibicines_ and _cornicines_,
and the fifth century of _proletarii_ which probably existed at this
time.[1251] The total number of centuries would thus be 373 (350 + 18
+ 5). The majority of this number is 187, but the first class and the
_equites_ together now have but 88 votes, thus losing their preponderance
in voting power. In spite of this arrangement by tribes there is no
tribal vote. The unit of voting is still the century, and it is the
number of centuries that decides the question. The organisation is still
by classes, the seventy centuries of each class voting as distinct
bodies.[1252] The _equites_ seem still to have had the right of voting
first,[1253] and the first class took precedence of the others; for the
lot which designated the _centuria praerogativa_[1254] seems to have
been cast only amongst the seventy groups of _seniores_ and _juniores_
belonging to this class.[1255]

The restoration by Sulla of the older method of voting (88 B.C.)[1256]
was not a permanent reform. It disappeared during the Cinnan reaction,
and it is questionable whether it was renewed by the dictator. If it was,
it soon vanished with other items of his aristocratic reorganisation.

The _comitia tributa_ was the most handy of all the assemblies of the
full Populus, and was, consequently, the most frequently employed for
the passing of _leges_. Its presidents were the patrician magistrates,
usually the consuls and praetors and, for purposes of jurisdiction, the
curule aediles. It elected these aediles and other lower magistrates
of the people, as well as the twenty-four tribunes of the first four
legions. Its jurisdiction was limited to pecuniary penalties.

The _concilium plebis_, practically the sovereign body of the state,
differed from this last assembly in two respects. It could be summoned
only by plebeian magistrates and it never included the Patricians.[1257]
Besides issuing universally valid decrees (_plebiscita_), it elected
the magistrates of the Plebs, and in its judicial capacity was the
body which considered the penalties which they had formulated. By the
strict letter of the Twelve Tables this jurisdiction should have been
limited to the imposition of fines,[1258] but, besides instances of its
capital jurisdiction at an early period of its history, it continued
to possess the unquestioned right of pronouncing outlawry (_aquae et
ignis interdictio_) against any one already in exile,[1259] and after
the time of Caius Gracchus there are traces of an independent capital
jurisdiction which it exercised against magistrates who had violated the
_provocatio_.[1260]

The freedom of this plebeian assembly was for a time limited by Sulla’s
ordinance (88 B.C.) directing that no measure should be brought before
it which had not received the previous sanction of the Senate;[1261] but
the old powers of unimpeded legislation were restored in 70 B.C. If Sulla
also took the right of prosecution from the tribune,[1262] the higher
jurisdiction of the Plebs was restored by the enactment which gave it
back its legislative power, for tribunician prosecutions continue to the
end of the Republic.

An anomalous use of the popular suffrage was made in the case of
elections to the priestly colleges. Formerly they had been kept distinct
from the secular life of the state, and even when the reforming spirit
dictated that they should be submitted to the voice of the people,
a religious scruple forbade the intervention of the _comitia_. The
electoral body was composed of seventeen tribes selected by lot from
the thirty-five, and this body, which was _not_ the Populus,[1263] was
presided over by a pontiff.[1264] This organisation was probably first
applied about the middle of the third century B.C. to the creation of
the _pontifex maximus_: it received a great extension at the close of
the second century. A Domitian law, a _plebiscitum_ of 104 B.C., applied
election in a modified form to the religious _collegia_—probably to the
four great guilds of pontiffs, augurs, quindecemvirs, and epulones. The
college in question presented, the people elected and gave to the college
again a _congé d’élire_, whereupon the chosen candidate was solemnly
coopted by the members of his guild.[1265] Sulla abolished this mode
of appointment, and perhaps with it the popular election of the chief
pontiff, restoring the aristocratic mode of cooptation; but appointment
by the seventeen tribes was restored again in 63 B.C., through a
plebiscite of the tribune Labienus.[1266]

Our final task in connexion with the people and its powers will be to
describe the preliminaries to the meetings of the _comitia_ and the
_concilium_, and the mode in which business was transacted at these
gatherings.

The legal days of meeting (_comitiales dies_) were those which were
neither holy (_nefasti_) nor dedicated to the work of justice (_fasti_).
The 194 days thus left clear were further broken into by the _nundinae_,
the first days of the eight-day week, on which not even a _contio_ could
be held,[1267] and by the movable festivals (_feriae conceptivae_) which
were fixed by the magistrates. These rules of time were binding on all
meetings of Populus and Plebs; those of place differed for the various
assemblies. The assembly of the _curiae_ met within the _pomerium_,
usually in the Comitium on the north-west of the Forum.[1268] The
centuries, on the other hand, must meet without the walls, and their
place of assembly was usually the Campus Martius, but meetings are
sometimes found in other places such as “the Peteline grove outside the
river-gate,” and an unknown site called the Aesculetum.[1269] The two
assemblies of the tribes were originally bound to no locality, except for
the fact that the plebeian, as purely city, magistrates could not easily
find their way outside the walls. But the eliciting of a _rogatio_ from
the tribes by the consul in his camp at Sutrium in 357 B.C. led, through
the fear of military influence, to the rule that no resolution should
be elicited from the people in the military domain,[1270] and since
that date the two assemblies of the tribes were held within the first
milestone. The open space of the Capitol (_area Capitolii_) was at one
time their usual resort both for elections and for laws, but in the later
period of the Republic it was found convenient to conduct the elections
both of the lower and plebeian magistrates in the Campus Martius, while
the Rostra in the Forum, the usual centre of demagogic strife and the
ordinary gathering place for _contiones_, was chosen as the site for the
legislation of the tribes.[1271]

The first step in the intercourse of a magistrate with the people, which
was to produce a binding act, was the setting forth by the former of a
decree specifying the day of meeting,[1272] and describing the nature
of the act which he meant to introduce. This promulgation[1273] assumed
various forms in accordance with the purpose of the projected meeting.
In prosecutions it contained the name of the accused, the nature of
the charge, and the penalty proposed; in elections at least the places
to be filled, but probably in later times a list of the candidates as
well;[1274] in legislation the text of the law which was to be the
subject of the _rogatio_. No provision seems to have been made that
the text should remain unaltered until a Licinio-Junian law of 62 B.C.
provided that a copy of the promulgated enactment should be deposited in
the _aerarium_ as a guarantee that no amendment was inserted before the
people was asked to accept it.[1275]

The minimum interval between the promulgation and the meeting was the
space of three _nundina_, i.e. 24 days, and this condition was as
necessary for jurisdiction and elections as for laws.[1276] On the
appointed day the first act of the magistrate, who meant to guide a
meeting of the Populus, was the _auspicatio_ in the sacred enclosure
(_templum_) which formed the centre of the gathering. Celestial signs
alone[1277] seem to have been the object of this morning watch; but
no such observation was necessary for plebeian gatherings; they were
disturbed only by _auspicia oblativa_.[1278] The auspices had been taken
before sunrise, and if they were favourable the herald was then sent
round the walls inviting the people to meet the magistrate at dawn.[1279]
This was sufficient for the _comitia_ of the tribes.[1280] For the
centuries more elaborate preparations were necessary. Proclamation of
the meeting was made from the Rostra, and the red flag flew from the
Janiculum to show that it was guarded while the army was busy in the
Campus.[1281] The military horn was blown on the _arx_ and round the
walls, and, if the summons was for a court of justice, before the house
of the accused.[1282]

When the people were assembled the president opened with a prayer,[1283]
and the _rogatio_ was read with the request whether the quirites “will
and order it” (_velitis_, _jubeatis_). The magistrate is now addressing
a _contio_, and the _rogatio_ is subjected to a limited discussion. The
president explains and advises it, and the officials or senators whom he
has assembled express their support or dissent.[1284] This discussion
always preceded acts of legislation.[1285] When the _comitia_ met for
jurisdiction there may have been some debate even in the _quarta
accusatio_;[1286] it was probably only at elections that it was wholly
absent.

When the discussion was over the _contio_ was dissolved. Those who had
no votes were dismissed from the enclosure;[1287] to those with votes
the magistrate said, “Si vobis videtur, discedite, quirites,”[1288]
thus asking them to divide up into their separate compartments, whether
tribes or curiae or centuries. The enclosure was deemed large enough to
hold all the privileged citizens, although where such a space could have
been found on the Capitol or in the Forum is one of the mysteries of
Roman topography. This enclosure was divided longitudinally into as many
compartments (_consaepta_) as there were voting divisions. Each division
was connected with the magistrate’s tribunal through a gallery (_pons_)
running the whole length of the enclosure, this high gallery being
connected with the various voting compartments by separate descending
_pontes_.

The votes in each compartment were taken singly, and were given at the
exits of the various _pontes_. During the greater part of Republican
history votes were given verbally, the tellers (_rogatores_) marking
them off on tablets by means of points (_puncta_).[1289] In legislation
the affirmative answer was _uti rogas_, the negative _antiquo_; in
jurisdiction acquittal and condemnation were pronounced by _libero_
and _damno_; in elections _dico_ and _facio_ seem to have been
employed.[1290] But in the latter half of the second century of the
Republic the ballot was introduced. The change was gradual. Secrecy
was first secured for elections by the _lex Gabinia_ of 139, and for
jurisdiction, with the exception of cases of treason (_perduellio_),
by the _lex Cassia_ of 137. The _lex Papiria_ of 131 extended the
principle to legislation, and finally the _lex Caelia_ of 107 admitted
it for cases of treason.[1291] In legislation and jurisdiction the old
formulae were retained, the tablets which were distributed being marked
V and A, or L and C. For the purpose of elections blank tablets were
distributed on which the voters wrote the names.[1292] The _tabellae_
were now thrown into an urn (_cista_) at the exit of each _pons_. The
reckoning of the votes (_diribitio_) was in the hands of tellers who were
sometimes called by the old name _rogatores_, but were also spoken of
as _diribitores_.[1293] The _cistae_ were watched by public _custodes_,
and in the case of elections the candidates were allowed to place one
guardian at each urn.[1294]

The issue was decided by the vote of the groups. In the assemblies
of the curiae and the tribes the voting of the groups took place
simultaneously, in that of the centuries in the order which we have
already described.[1295] In the two former assemblies the order in
which the votes of the groups were proclaimed had thus to be decided by
lot.[1296] The reading (_pronuntatio_, _recitatio_) was continued only
to the point at which an absolute majority for or against the measure
had been obtained. When sixteen curiae or eighteen tribes were found to
have given the same vote, it ceased, and the formal announcement of the
result (_renuntiatio_) was then made by the magistrate. In the _comitia
centuriata_ the announcement of the result might be reached without
all the centuries being called on to vote, since the result of each
vote was proclaimed immediately after the group had given it, and the
needful majority might be reached before all the groups had voted. The
absolute majority was required in elections as well as in legislative
acts, and hence the candidate who gained a mere relative majority was not
returned.[1297]

Records of the voting were kept for some time in case the decision
should be challenged.[1298] The promulgated _lex_ was, as we saw,
deposited in the _aerarium_, as laws which had passed must have been
long before this provision was made, but they were kept without order or
method, and skilled assistants were required to ferret out the desired
enactment.[1299] Little regular provision seems to have been made for
the publication even of recent measures; but those which were considered
important were originally painted on wood and later engraved on bronze,
and fixed in temples or other public places.[1300]

CHAPTER VI

THE SENATE

The Roman constitution, in the form in which we have left it at the
close of the period of its growth, was the chaotic result of attempts
to arrest internal revolution, and of feeble and misdirected efforts to
readjust the relations of outworn powers. A state in which three popular
assemblies have each the right of passing binding acts of parliament, in
which twenty magistrates with clashing authority have each the right of
eliciting the sovereign will of the people, possesses no organisation
which can satisfy the need for which constitutions exist—the ordered
arrangement of all the wants of civic life by means of a series of
uniform acts possessing perpetual validity. It is true that the search
for a personal authority is the object of theoretic, not of practical,
inquiry. The average man, who is fortunately the power that in the long
run determines the shape that politics shall assume, seeks law alone and
cares nothing for its source. The vagueness of the ultimate power does
not affect him, if the rules it lays down are rigid and binding; he will
accept principles in place of persons, and by doing so he proves that he
is more scientific than the scientists. But the fundamental principles
that lie behind the personal power in a state are too vast in their
scope to apply immediately to the needs of human life. They require
interpretation by means of legislative and executive authorities; and if
these acts of interpretation are to have the character of principles,
the dictating authorities must have a fixed character and a permanent
life, and there must be some guarantee that they shall submit their
judgments to the accumulated experience of the past. No such character
and no such guarantee were to be found in the existing elements of the
Roman state which had strict legal recognition. The _comitia_ could,
like a parliament in a modern state where no provision for a constituent
assembly exists, go on in an endless career of constitution-making; the
magistrates could interpret the laws at their own will, and by fighting
out the merits of their rival interpretations amongst themselves paralyse
the state or plunge it into anarchy. It was felt that a central power
must reside somewhere, a power which should guide the people and control
the magistrates, a power which should above all avert the terrible
conflicts between rival authorities so amply encouraged by the existing
law.

It was scarcely necessary, at any one point in the growth of the Roman
constitution, to raise the question where this power was to be found. A
chain of circumstances, some internal and some external, had provided
a body of men possessing the three main qualifications necessary for
the exercise of central authority—permanence, experience, and the free
power of deliberation. With every step in the professed extension of
popular privilege the power of the Roman Senate had increased; and the
explanation of this anomaly is to be found in the fact on which we have
already dwelt, that the distribution of authority amongst the popular
assemblies, and the increase in the number of the magistracies, had
involved such a weakening of the authority of magistrates and people as
to render both incapable of any pretence at effective rule. The long
series of wars in which Rome was engaged, from the commencement of the
struggle with Pyrrhus to the close of the third contest with Carthage,
and the new duties of administration entailed by the organisation of
Italy and of the earlier provinces, exhibited this incapacity in a still
more glaring light. But the growth of the Senate’s authority cannot be
attributed mainly to the necessities of external administration; for the
fundamental changes which conditioned its pre-eminence had come when
Rome was little more than a city-state, and the Senate would have ruled
had Rome continued to govern a tract of territory no larger than that
possessed by a Cretan city. The Empire was the final ratification, the
seal of the Senate’s authority; but the origin of this authority is to be
found, not in the accident of conquest, but in the working of the Roman
mind itself.

The circumstances which determined the growth of the power of this
great council of state are connected, firstly, with the constitution of
the council itself; secondly, with the changes in its presidency; and
thirdly, with its absorption of isolated powers, some of which it drew
from the incompetent hands of magistrates and people, others of which it
created.

(i.) A nominee body, such as the Senate had originally been, may be
moulded by the will of the nominator. The personal selection by the
consuls of their intimate friends, the habit of omitting, at the annual
revision of the list, the names of those who were alien to them in
sympathy, while favouring the dignity of the aristocracy by making it
appear as though exclusion were based on arbitrary preference and not on
censure, yet diminished the independence and lessened the prestige of
the councillors thus arbitrarily selected. It is true that the work of
selection was performed by two consuls, and the judgment of the one might
be balanced by the prejudice of the other; it is also true that public
opinion would have been shocked by the choice of unworthy members of the
magisterial council, and that the aristocracy itself would have resented
the omission of a name distinguished by the great deeds of its possessor
while in office; but the self-existence of this council could only be
secured by the one great device of taking from the magistrate, whose duty
it was to consult, the selection of the men whose duty it was to furnish
him with advice. An opportunity for effecting this change was offered by
the institution of the censorship. The selection of the Senate (_lectio
senatus_) is indeed no part of the _census_, nor do we know when this
highest of all the privileges of the censors was transferred to the new
authority. But by the year 312 not only, as we have seen,[1301] had the
transference been effected, but conditions of selection had been imposed
which made the Senate partly a body of ex-curule magistrates, partly of
nominees who had done good service to the state in the lesser grades
of the magistracy or the higher ranks of the army. The vista that lay
before the eyes of all aspirants to office was now no longer the annual
magistracy, temporary in its nature and hampered by restrictions of every
kind, but the seat in the Senate to which it was the stepping-stone.
Within the charmed circle the grades of rank were still of importance,
and the “servants of the order,”[1302] as the magistrates now tended
to become, could find in the magnificent displays of the aedile, the
high judicial functions of the praetor, the military leadership of the
consul, and the moral control of the censor, the graduated satisfaction
of the most diverse ambitions. But, even before the point of transition
marked by the curule magistracy had been passed, the Roman noble tended
to identify his interests with those of the house to which fate and the
inevitable suffrages of the people had destined him. Interest even more
than conviction would sanction such a choice; the vast nominal powers
of the magistracy he could wield but for a year; of the clique of Three
Hundred he was a life-long member. And the depressing influence, which
contact with some scores of middle-aged and experienced men must have
over youth even when blessed with genius, completed the work which
interest and a vague class sympathy had begun. The new member moved in
that narrow circle of ideas which through its very narrowness was strong
enough to baffle Pyrrhus, Hannibal, and Philip, and to half complete
the organisation of the world. The men that rose above it—Scipio, the
Gracchi, Caesar—found endless difficulties in their path, and originality
of conception, which is conspicuous by its absence in the organisation
of the Roman Empire, led its possessors to exile, death, or monarchy.
But the restraining influence was felt only in the essential principles
of politics; in the control of details a free hand was still given to
the administrator, and individuality of a uniform, decorous, and sober
kind, combined with a high average level of practical ability, is to
be found in the Roman senator of the best period. The narrowness of
interest, the selfishness and the corruption, which are the besetting
sins of a corporation with an assured tenure of rule, were also weakened
in the case of the Roman Senate by the fact that, through the elective
principle, it was always in constant touch with the people. It is true
that the Senate was a parliament, the members of which were elected for
life—a parliament, therefore, that might easily cease to represent the
wishes of the electorate; but each member, until he obtained the coveted
prize of the consulship, was ever submitting himself to the suffrages
of the people in order to pass from grade to grade of honour. The
susceptibilities of the “great tame beast” had to be respected; its eyes
must be dazzled by occasional popular measures, by military achievements,
at the worst by private bounty or by brilliant shows. The coterie system
that worked the elections could do much, but it could not do everything;
the race for honours provided _stimuli_ sufficient—even when the public
opinion of his own order failed—to keep a counsellor of Rome up to a high
level of efficiency.

An order of nobility that is practically hereditary tends to attach
to itself titles of nobility and external distinctions of dress. The
democratic nomenclature of the Romans prevented the development of
the first, and although within the Senate the grades of rank were
clearly marked, and the distinctions between _consulates_, _praetorii_,
_aedilicii_ and the former holders of lesser magistracies were observed
in the order of debate, these designations were not employed as constant
epithets. But the desire of emphasising difference of functions by
external signs, which is such a strongly marked feature in Roman public
life, revealed itself fully in the senatorial garb. The present or past
holder of curule office wore the purple-striped toga of the magistrate,
the ordinary senator bore on his tunic a stripe of the same colour, which
during the last century of the Republic was distinguished by its breadth
from that worn by the order of the equites. Still more distinctly a
part of the senatorial _insignia_ is the senatorial shoe of red leather
(_calceus mulleus_), which, distinct in shape as well as in colour, was
worn by no other members of the state. The origin of the distinction is
obscure; tradition explained the sandal as the royal footgear,[1303]
which continued to be worn by the patrician senators in their character
of potential kings (_interreges_).[1304] The gold ring the senators
shared with the members of the equestrian order. Since the nobility of a
senator ended with his life, it is needless to remark that the _insignia_
could not be transmitted to descendants. Yet, as some of them—the gold
ring and perhaps the _latus clavus_—had merely a social sanction, it is
not improbable that the practically hereditary nature of the nobility had
led to their being worn by members of senatorial families destined to
follow their fathers’ career. There is, at least, no reason to suppose
that the youthful order of _laticlavii_ was an invention of the Emperor
Augustus.[1305]

The identification of the magistracy with the Senate, which had been
practically complete by the close of the third century of the Republic,
was perfected in law by the dictator Sulla. The quaestorship was now
made the stepping-stone to the Senate;[1306] the personal selection by
the censors—which, in the face of unwritten custom, had been growing
weaker year by year—was dispensed with; while their more important
right of rejecting unworthy members could be resorted to only when the
censorship was occasionally galvanised into new life. An automatic mode
of recruiting the order should, if the power and dignity contemplated
by the reactionary legislator were to be secured, have been accompanied
by an equally automatic method of divesting of their rank those who had
proved unworthy of it. But no such system was devised, and the morals
of the Senate were for the first time left to chance, or rather to the
reasonable hope that after the age of thirty-one (the lowest period of
life at which senatorial dignity could be held) the character once formed
would not deteriorate.

A more important factor in the change introduced by the Cornelian
legislation was the permanent increase in the numbers of the Senate.
Doubled by the immediate action of the dictator, the body continued to
maintain its complement of about 600 members; for twenty annual additions
of ex-magistrates of the usual quaestorian age would enable it to retain
this normal level. The large size thus given to the senatorial body is
one of its most surprising features, when we consider the business with
which it had to deal. Secrets that are uttered with bated breath in a
modern cabinet were proclaimed aloud at Rome to an assembly of the size
of a modern parliament. But there were no reports of proceedings for
the eyes or ears of the outside world, and secrecy about reasons for
policy was sometimes only too well kept. Such secrecy was often treated
as suspicious by the professed leaders of the people at the close of the
Republic, and the consciousness of danger felt in the Senate seemed mere
weakness to the mob. The history of the Senate, if it does not show the
futility of secret diplomacy, may yet prove it to be unnecessary that
this diplomacy to be effective should be entrusted to a few.

(ii.) The freedom and power of a deliberative assembly depends very
largely on the unrestricted right of debate and initiative possessed
by its individual members. In theory the Roman senator was sorely
hampered in the exercise of both of these powers. The body to which he
belonged ever retained its formal character of a council of advisers;
the magistrate might summon it or not at his discretion, might refuse
to lay a particular question before the house, or decline to elicit
the opinions (_sententiae_) of some suspected members, opinions which
they had no power to give unasked. So long as these powers were in the
hands of two consuls, a conspiracy of silence might easily impede the
expression of the Senate’s judgment; but when the right of summoning and
of laying business before the house became the property of the praetors
in virtue of their _imperium_, and was subsequently, by an anomalous
recognition of a revolutionary power, extended to the tribunate, the
number of possible presidents was increased to twenty, and the Senate
again drew its strength from the dissensions of the magistrates. Twenty
men, even if they all represent a nobility, must also represent different
shades of opinion, and will attempt to elicit views corresponding to
their own, which may then be submitted to the approval and the votes of
the house. The practice having early arisen that it was only a definite
expression of opinion coming from some quarter of the house that should
be submitted to the approval of its members, the magistrate, eager to
put the desired motion (_relatio_), is now to a large extent dependent
on the senator. And the few gaps that still remain in the latter’s power
of initiative are filled up by ingenious fictions of debate. The senator
would rise, unburden his soul of cherished views on matters alien to the
debate,[1307] and then make his speech conform to the rules of the house
by concluding with a formal opinion on the direct issue put before it by
the magistrate. In one instance at least we find the method reversed;
the great political crime of Carthage’s destruction was prepared by the
famous _sententia_ of Cato,[1308] often repeated in speeches on unrelated
topics, and having no connexion with the issue that was directly before
the house.

To understand the facilities for information and the freedom of debate
possessed by the Senate, we must have a clear view of the functions
of its presidents and of the position of the ordinary magistrates in
that assembly. The right of summons and the right of laying business
before the body were inseparable; both were possessed by three orders
of magistrates—consuls, praetors, and tribunes. But law, in the shape
of the power given by the _major potestas_, made it impossible for the
praetor to exercise his right of summons in defiance of the consul; while
custom dictated that even the tribune should not exercise this right
when the consul was at Rome. But, once the summons has been issued and
obeyed, the convoker of the council is not its only president. The three
classes of magistrates have each the right of reference, and each in
an order prescribed by customary law. The consuls’ motions come first;
they are followed by those of the praetors, and then the tribunes have
their turn.[1309] This system of priority, although necessary to prevent
confusion, was under ordinary circumstances a matter of comparative
unimportance. It could only become a serious hindrance to the freedom of
debate if the consul abruptly dismissed the meeting before a decision
had been reached on some question of pressing importance,[1310] or
if a method of systematic obstruction were adopted by some senator,
who wasted the hours with prolix oratory until the setting of the sun
made a suspension of business legally necessary. But the former device
was revolutionary in its character, and on the occasion of its use a
fit preparation for a revolution; while the latter seems to have been
employed, as by the younger Cato during Caesar’s consulship, as a
weapon against an offensive _relatio_ already before the house.[1311]
The president himself had ample powers for meeting such designs; in the
case in question the consul had the obstructive stoic haled from the
room.[1312]

A more serious danger would have been the absence of information from the
officials who succeeded the consul in putting motions before the house;
but this was obviated by the power which magistrates had of speaking
(_verba facere_) without invitation at any period of the debate. This
power was possessed as an admitted right by those magistrates who were
themselves presiding; the quaestors, whose financial statements were
indispensable, and the aediles may have exercised it only on sufferance.
This privilege was the more necessary as the presiding magistrates
at least could not be asked their opinion by the official who held
the attention of the house; they could not give advice, for they were
themselves seeking it of others.

Custom had determined with equal care the method by which opinions should
be elicited from the unofficial and advising members of the house. The
question “what is your advice?” (_quid censes?_) was put by the president
to each senator in an order corresponding to his official rank. In the
days of the activity of the censorship, it was this magistracy which
had determined the president’s first selection; the censors had placed
at the head of their list the name of some distinguished man (often
himself an ex-censor), and it was this “chief of the Senate” (_princeps
senatus_) whose opinion was first sought. But, after Sulla’s reform in
the constitution of the order, there is, in spite of the occasional
revival of the censorship, no certain evidence of the perpetuation of
this dignity. Henceforth a body of _consulates_ holds the first place,
and from these the presiding magistrate—at least the consul who opens the
business of the house—chooses his first adviser, according to no settled
rules, but with due regard to seniority or personal distinction.[1313]
The only exception to this practice was to be found in the latter
half of the year, when the consuls elect, either in virtue of their
quasi-magisterial position or because they might themselves have to
carry out the decrees which were being discussed, took precedence of
the consulars.[1314] From the latter the question passed down through
the _praetorii_ to the men of aedilician or tribunician rank, and so
finally to the lowest grade of all—the ex-quaestors; and it is probable
that, in every grade, the rule of consulting a designated magistrate
before an ex-magistrate was observed. It is obvious that this procedure,
when rigidly adhered to, left the non-curule members of the Senate only
an infinitesimal chance of a share in the debate. These had always been
known as _pedarii_, in contradistinction to the _curules_; originally
nominees of the censors, they included after the time of Sulla the
former tribunes and plebeian aediles, and the members of quaestorian
rank. As they were rarely reached in the debate, they seldom had the
opportunity of expressing an opinion, and hence arose the erroneous
notion of some antiquarians that the _pedarii_ were given the right
of voting but not the power of debate.[1315] But restrictions of this
kind, arising from practice and not from law, were never pressed by the
Romans. The repute of a man who had not reached curule rank might exceed
that of all the other senators; the principle that would open the lips
of a Bibulus and close those of a Cato was recognised as mischievous in
certain emergencies, and it was the latter who as tribune elect—that is,
as a _pedarius_—moved the resolution which condemned the Catilinarian
conspirators to death.[1316]

From the mass of opinions elicited in the course of the debate, the
president might choose any that he pleased to submit to the judgment
of the house. The safeguard of the individual senator was here found
in the number of the presiding magistrates. As a rule the same order
was followed in putting _sententiae_ to the vote as had been observed
in eliciting them; but out of an aggregate of opinions that, with
differences of detail, gave practically the same advice, the president
might choose that which he considered most to the point or best worded
as the one to be submitted to his council. It was certainly an unusual
step when, in the historic debate of December 5 in the year 63 B.C.,
Cicero put to the vote the _sententia_ of Cato in place of the similar
but weaker resolutions of the _consulares_;[1317] but the consul in this
exercise of his discretionary choice was acting well within his rights.

One is sometimes surprised, considering the rigidity of the procedure
and the size of the body, at the amount of business that appears to have
been transacted at a single meeting of the Senate. But both the rules
of procedure and the Roman temperament account for the rapidity of the
debate. As regards the former it must be remembered that no motion could
be put unless pressed by a magistrate, that there was no distinction
between substantive motions and amendments, that alternative proposals,
therefore, had not to be submitted in detail to a division, that the
carrying of one motion generally swept all _sententiae_ on the same
subject aside, that motions for adjournment did not take precedence of
other motions, and that the business of the house was not interrupted
by this modern device for wasting time. We must also remember that a
division in the modern sense of the word was rare, and that it appears
seldom to have been necessary to take the numbers of the members who
respectively supported or were adverse to a motion.[1318] The estimate
of the voting was in fact going on during the debate; it was the custom
of the senator, often without rising, to express a few words of assent
to a former speech,[1319] and it was not unusual to leave one’s bench
and take up a position near the man whose opinion one supported.[1320]
The sense of the house could thus often be taken before the debate
had ended; where it was not obvious the consul urged to a division
(_discessio_);[1321] even then it is improbable that recourse was had to
counting, unless the parties on either side were very evenly balanced.
Other reasons for rapidity were to be found in the Roman temperament
and in the intellectual atmosphere of the house. The Roman, until his
better nature was corrupted by the schools of Athens and Rhodes, was a
man of few words; the Senate was the least likely body in the world to
be swayed by florid eloquence; clearness and brevity were the qualities
most in demand, and even at the close of the Republic, when the Senate
had surrendered itself to the perilous pleasure of listening to carefully
woven sentences, the “paint pots” of Cicero[1322] were still in all
probability the exception and not the rule.

The voice of the majority of the Senate was embodied in a resolution
(_senatus consultum_). Considered as the mere advice of the magistrates’
council it had no legal validity whatever; its binding character sprang
from the fact that it was a decree of the magistrate applying to a sphere
in which he was himself competent to issue such injunctions. Hence, as
we have seen,[1323] the veto pronounced on a decree of the Senate by
the colleague or superior of the magistrate who has elicited it, is
no exception to the rule that the acts of corporations or of private
individuals were not subject to this form of invalidation. So little
was this the case that, when the decree had been vetoed, the advice of
the Senate still remained unimpaired. The annulled resolution was still
drawn up, but it had become an _auctoritas_ merely.[1324] It was still of
sufficient potency to bind constitutionally-minded magistrates, but it no
longer imposed the duty of obeying it on the community. The _consultum_
or _auctoritas_ was drawn up at the place of meeting soon after the
resolution which it embodied had been passed. As there were no permanent
officials of a responsible character to see to its redaction, a small
committee was appointed by the president to attest the genuineness of the
document;[1325] this consisted usually of the author of the resolution
and of some of his supporters.

(iii.) The Senate exerted its developed authority under two different
aspects. It was the body which exercised the power of previous
deliberation on matters which must be submitted to the judgment of a
nominally higher authority, the people, and it was a council which
professed to give final directions to the magistrates on the conduct
of their administrative duties. It possessed no sphere of its own in
which it could act unassisted by magistrates and people, and thus its
formal independence is far less than that possessed by such a body as
the Athenian _Boulê_. The only department of state in which it seems to
have independent authority—the power of perpetuating the very life of the
_civitas_ by the appointment of an interrex—belongs strictly not to the
Senate but to its patrician members; and even for the exercise of this
right during the Republic the motive power had to spring ultimately from
a magistrate of the Plebs.[1326]

The Senate by exercising a probouleutic authority showed its sense of
its own limitations. Occasionally, as we shall see, it usurped isolated
powers that belonged of right to the people; but as a rule its final
authority was only felt in that vast sphere of executive influence that
had been formerly entrusted to the magistrates. It could control, but
it might not usurp, the sovereign powers of the people; it elected no
magistrates; it possessed no legislative authority; it could not declare
war or make peace; it dared not extend the limits of Roman citizenship
by the conferment of the franchise; it made no claim to the exercise of
jurisdiction or of the still more sovereign right of pardon.

Yet, when it is remembered that the activity of the _comitia_ in all
these matters could only be set in motion by the magistrate, and that
the Senate’s advice had grown into a real power of control, it is easy
to see that the first step in every measure of importance must come
under the cognisance of this all-pervading council. Its probouleutic
authority was based on the observance by the magistrate of certain
unwritten rules, which regulated the exercise both of his positive and
of his negative powers. It was held that no magistrate should question
the people on any important matter without the Senate’s advice, and
that he should not decline to exercise this power at its request; that
the power of veto should be employed only at the discretion of the
council, and that the request for its exercise should not be refused.
These unwritten principles were, as a rule, strong enough to fetter a
magistrate’s action by his conviction of their necessity; when this
conviction was not sufficiently strong, the Senate resorted to its last
constitutional weapon, the veto of a friendly magistrate. For this
purpose the tribunician college was usually employed; its size offered
the largest scope for differences of opinion, for of the ten legally
supreme magistrates of the state one at least could generally be found
to whom the Senate’s word was law. The blocking of legislation through
the _intercessio_ of a senatorial tribune may be illustrated by the
attempt of Octavius to negative the agrarian legislation of the elder
Gracchus:[1327] the effort to annul an administrative order of a sweeping
kind by the veto pronounced against the proposal of the praetor Juventius
when, without consultation of the Senate and without previous intimation
to the consuls, he attempted to urge the _comitia_ of the people into a
declaration of war with Rhodes.[1328]

In dealing with the powers of the Senate two courses lie open before us;
we may either treat them in the order of their growth and show how the
successive usurpations were effected, or we may describe them as they
existed in their developed form. The first method would have more of an
historical interest, but, apart from its difficulty and obscurity due to
the frequent lack of evidence, it would result in a wholly unsystematic
classification of the aggregate of acquired rights. It is preferable,
therefore, to deal with the Senate’s powers in their developed form, with
a preliminary warning that they were gained at very lengthy intervals
and by very different means. Some, such as the control of finance, were
usurped from the magistrate; others, such as the dispensation from laws,
were stolen from the people; to others again, such as the control of the
details of provincial government, the Senate had an altogether peculiar
right, such powers being created during the period of the growth of its
ascendency.

With the election of magistrates the Senate of the later Republic had
no direct concern, and the people alone claimed the perhaps not wholly
constitutional right of deposing them. But towards the close of its
tenure of power, when the struggle for existence caused it to strain
its prerogatives to the utmost limit, we find the Senate claiming the
very analogous right of suspending a magistrate from the exercise of
the functions of his office. A charge of turbulent proceedings was the
motive for the suspension of Caesar from the praetorship, and of Metellus
Nepos from the tribunate in 62,[1329] and Caelius Rufus was ejected,
on the allegation of similar misconduct, from the curule chair of the
praetor in 48.[1330] The use of this power against the praetor, or indeed
against any magistrate subject to the _major potestas_ of the tribune,
is comprehensible; for the latter might, at the bidding of the Senate,
inhibit any official from the exercise of his customary functions; how
the power could be employed against the tribunate itself is one of the
hidden mysteries of senatorial usurpation.

The power of legislating, that is of establishing fundamental changes
in civic relations, was never claimed by the Senate; nor had it ever
possessed any legal right to suggest or impede the making of a law. The
_patrum auctoritas_, like the _interregnum_, had resided only with the
patrician members of that body; and the power of previous deliberation
claimed by the later Senate as a whole was merely one of the inevitable
results of the balance of power within the magistracy. Such slight
approximations to law-making as are found were simply the result of
consultation by the magistrates on questionable points. The Senate
reaffirmed an ancient principle that the confession of a slave which
might doom his master to death or exile should not be wrung from him by
torture;[1331] it might even infringe so much on the freedom of contract
as to suggest a current rate of interest[1332]—a principle which the
praetor might respect if he cared or if his colleague obliged him to do
so.

But here again we meet with the strange anomaly that the Senate can
destroy where it cannot create. It claimed the sovereign privilege of
exempting individuals from the operation of the laws, and the claim
which was an admitted usurpation was sanctioned by custom. Formerly the
sovereign people could alone grant such dispensations, but the motion
submitted to the people was first approved by the Senate. Very gradually
the second stage in the proceedings was dropped, for it was considered
the merely formal sanction of an already accomplished act; and the
senatorial right of dispensation was assured until it was attacked by
the tribune Cornelius (67 B.C.). The proposal that it should be restored
to the people was successfully resisted, but a compromise was arrived at
by which it was agreed that no act of dispensation should be valid which
had not been approved by a house of at least two hundred members.[1333]
This provision, evidently meant to prevent the abuse of the power for
purely personal or party ends, did not fulfil its purpose, for _senatus
consulta_ of this kind were gained by influential men on the slightest
pretexts and for the most unworthy objects.[1334]

An observance of certain forms had always been necessary for the
legislative activity of the people to be regular and valid. In countries
which recognise the sovereignty of parliament, the guardian of such
forms is in the first instance the legislative chamber itself, in the
second the courts of justice, which can, or should, be allowed to refuse
to put into effect any law that has been passed in disregard of such
formalities. This was the case at Rome. The laws themselves contained
clauses which pronounced their ineffectiveness in case they should be
found to violate the principles of the constitution, and the courts of
justice had the courage to resist the enactments even of the provisional
government of the dictator Sulla. But the executive authority might also
have doubts about the propriety of putting into force a measure which it
recognised to be irregular; and of this executive authority the Senate
was the guide. Hence its well-established claim to point out a flaw in
a legislative enactment, to establish the fact that the magistrate had
questioned the people improperly, and that the answer of the people was
therefore null and void. The exercise of this revising power once led
to the greatest upheaval that Roman history records. It was by pointing
out that the law of the younger Livius Drusus, which contained amongst
its other clauses the gift of _civitas_ to the allies, was irregular
as contravening the condition fixed by a _lex Caecilia Didia_ (98
B.C.) that wholly different enactments should not be contained in the
same _rogatio_,[1335] that the Senate brought to a head the formidable
conspiracy which culminated in the outbreak of the social war. History
also brings to our notice the attempted reversal by this means of a
popular judgment of a far smaller kind. It was suggested in the Senate
that a notice of the alleged irregularities of Clodius’ _plebiscitum_
should be made the ground of Cicero’s recall; but the exiled orator,
while thinking that there was “something in the notion,” yet preferred
the far safer form of an abrogation of the enactment by the popular voice
itself.[1336]

When we turn from legislation to its complement of jurisdiction we find
little direct interference by the Senate with the regular course of
either civil or criminal procedure. On exceptional occasions it might
decide the sphere of the praetor’s activity,[1337] and by its practical
weight in the declaration of a _justitium_ it might suspend the operation
of the business of the courts; but it did not interfere in the details of
such business, and the appeals to the vetoing magistrates were left to
their own discretion.

With respect to the criminal jurisdiction of the regular courts, although
the Senate never assumed a faculty for determining the procedure or
the sentence, it sometimes took the initiative in a prosecution by
suggesting that a charge should be brought, and this implication _might_
be contained in a senatorial judgment that a certain course of action
was _contra rem publicam_.[1338] With respect to an extraordinary
commission, the true theory of the Republic was that it could be
established only by the people. The procedure adopted against Clodius
for the violation of the rites of the Bona Dea is typical of the
constitutional method that should always have been employed. The offence
which he had committed—though vaguely designated “incest”—was one that
in that particular form was unknown to Roman law. First the college of
pontiffs is consulted, and pronounces the act an offence against religion
(_nefas_); then a decree of the Senate is framed specifying the crime and
the procedure, which is modelled as closely as possible on that of the
ordinary criminal courts. This decree is then submitted for ratification
to the judgment of the people.[1339] Acts of attainder are a lamentable
confession of weakness in a political, social, and legal system; but it
was right that this weakness should not be remedied by an administrative
authority representing a single caste.

But there were certain emergencies which it was thought could not be met,
even by the establishment of a special judicial commission. Epidemics of
crime, such as poisoning, arson, murder, seemed to demand the immediate
exercise of the magistrate’s _imperium_, and for this exercise the
Senate is the directing and controlling force. Such an exercise of
magisterial _coercitio_ at the behest of the Senate is practically a
declaration of martial law, although the Senate by its decree does not
create a new power, but simply urges the magistrate to set free the
forces latent in his _imperium_. The earlier Republic had provided a
suspension of constitutional procedure in the form of the dictatorship as
a means of meeting such an emergency; the later constitution had no such
provision, and the burden of responsibility fell on the joint shoulders
of Senate and magistrates. Whether the exercise of such summary capital
jurisdiction was legal depended on the status and sex of the victims. If
the 170 women put to death for poisoning in 331 B.C.[1340] were executed
by magisterial decree, the act was legal, for women had no right of
appeal. Similar legality attended its exercise over provincials;[1341]
and, if similar sentences were inflicted on Italian allies,[1342] it was
a gross violation of treaty obligations, but not of the laws of Rome. The
male citizen alone might not be put to death in this summary fashion; and
if the Roman members of the great criminal society of the Bacchanalian
guild were executed without appeal,[1343] this was a judicial murder only
justified by the horror excited in the public mind by the blackest crimes
masquerading under the guise of religion. We still possess a fragmentary
copy of the decree by which this “conspiracy” was repressed; in it the
Senate thinks that “capital punishment should be inflicted,”[1344] but
the decree does not by its wording suspend the ordinary laws of appeal.

This guardianship of the state against conspiracies (_conjurationes_) may
have been the precedent for a power, the legality of which, as exercised
by the Senate during the last century of the Republic, was hotly
contested. This was the power of declaring the existence of a condition
of things which the Greeks would have denominated στάσις, of singling
out a party in the state and its leaders as enemies (_hostes_) to the
Republic, the latter being professedly represented by the Senate itself
and the magistrates who happened to be friendly to it, and of advising
the magistrates who were its presidents, above all the magistrates with
_imperium_, and sometimes even the pro-magistrates,[1345] to employ
every means of summary coercion to ward off the impending danger. The
formula for thus entrusting the guardianship of the community to a clique
of friendly magistrates was expressed in the words “that the consuls,
praetors, and tribunes of the Plebs (with the addition at times of
other officials with the _imperium_) should see that the state took no
harm.”[1346] After the passing of this decree the responsibility of
the Senate ceases; the magistrates act at their own peril and cannot
again devolve any responsibility for a judicial murder they may have
committed in the execution of their instructions by again consulting the
Senate on the guilt of their victims or on the method of execution to be
employed.[1347] There were obvious reasons which rendered it impossible
for this power to be based on any distant precedent; like the power last
discussed it was a substitute for the vanished dictatorship, which was
an integral part of the constitution, and subsequently to the decline of
this office there was no revolution in Rome antecedent to that which was
held by conservatives to have been inaugurated by the legislation of the
Gracchi. But, even apart from the question of precedent, the absurdity of
the Senate’s claim to be guardian of the Republic is manifested by the
fact that the opposite party in the _stasis_ might more truly represent
the theory of the constitution, as the Gracchan party did, than the
Senate’s government itself; a broad line separates political opposition,
even with the utmost force to back it, from criminal conspiracy against
society, and by the passing of this “ultimate decree” the Senate declared
itself the _author_ of a revolution. The controversy as to right is
here insoluble: the insolubility depends on the fact that there was no
permanent government at Rome except that of convention and of force.

Yet Roman sentiment would have declared that there were times when the
decree and its consequences were justified. Force can only be met by
force, and a gathering such as Catiline’s army in Etruria was a fair
object of attack by the executive authorities; but sentiment would not
have allowed the execution without appeal of a few prisoners captured
within the city, however grave the danger. A state of war must be
recognised, but there was no power in the Roman state that could declare
martial law and execute its consequences.

The exercise of this unprecedented power evoked a vigorous protest from
the true government, the people.[1348] The plebiscite passed by the
younger Gracchus was aimed more directly at the magistrates, and it
improved on the Valerian laws by enacting “that no _judicium_ should be
exercised on the _caput_ of a Roman citizen without the consent of the
people.”[1349] But it is possible that it made senators individually
responsible for the decree authorising such conduct on the part of the
magistrates,[1350] and it is almost certain that it abrogated a clause in
the law of the Twelve Tables by declaring that the Plebs might exercise
capital jurisdiction against a magistrate guilty of violating the
provisions of the measure.[1351] Henceforth there could be no question of
the illegality of the _ultimum senatus consultum_, for Cicero’s quibble
that the Gracchan law only protected the lives of _cives_, and that
individuals specified by the Senate had been declared _hostes_,[1352] is
an argument in a circle. It is this latter possibility which the Gracchan
law denied; and though common sense might interpret certain overt acts
as a sign of war against society, no degree of treason could _ipso jure_
make a citizen into an enemy unless that treason had been proved in a
court of law.

More justifiable than the power which we have just considered was
the police-control which the Senate exercised in Rome. Here, as in
other matters of administration, its attention was confined to great
and exceptional emergencies. In the absence of all facilities for the
expression of public opinion in Rome, except through the medium of a
magistrate, the ancient trade guilds (_collegia artificum_) formed
convenient centres for electioneering in the democratic interest. The
fact that towards the close of the Republic their weight was thrown
into the anti-senatorial scale led the government to regard their
existence as inimical to public order. A decree of the Senate of the
year 64 B.C. summarily dissolved all but the most venerable guilds
which were supposed to derive their origin from Numa;[1353] and this
sudden suppression may be regarded as a last step in a long career of
administrative interference, no record of which has been preserved by
history. Private political clubs, on the other hand, such as were known
by the names of _sodalitates_ and _decuriati_, did not come under the
immediate cognisance of the magistrate; for their coercion the Senate
had to procure the passing of a law.[1354] But minor details connected
with bribery and corruption were within its competence. It infringed the
inviolability of the magistrate’s house by allowing search to be made
there for incriminating proof of corruption, and it directed that whoever
should be guilty of harbouring professional election agents (_divisores_)
at his dwelling should be liable to a vote of censure and possible
prosecution.[1355]

If we now turn from the corrective to the administrative activity of the
Senate, we shall find that this was exhibited chiefly in the departments
of foreign relations, finance, and religion.

The primary spheres of foreign activity are the declaration of war,
the making of peace, and the framing of alliances. All these powers
belonged of right to the people, and, as regards the first, there was
never any question that the Senate’s position was merely that of a
constant adviser. The two latter powers merge into one another, for a
state that was not on some terms of alliance with Rome was, according to
the rude notions of the prevailing international law, an enemy of the
Republic. There appear at intervals during the Republic signs of a keen
but advantageous controversy as to whether the right to conclude binding
treaties in the name of the Republic was possessed by the _imperator_ in
the field, as well as by Senate and people. To profit by the oath of a
general when it entailed success, to disavow it when it meant failure,
and in this case to hand the unfortunate commander, who had saved Roman
lives but not Roman honour, bound and naked as a scapegoat to the enemy,
were the convenient results of this condition of juristic doubt. The
Caudine Forks in Samnium, Numantia in Spain, and the neighbourhood of
Suthul in Numidia saw Roman generals and their deluded adversaries equal
victims of this controversy.[1356] But the opinion finally prevailed
that without the consent of the Senate and the people no sworn treaty
(_foedus_) could be binding.[1357] The practice as to the division of
this authority between the council and the assembly varied from time
to time. In the earliest period a treaty of peace seems to be within
the competence of the magistrate, and therefore of the Senate; in the
constitution of the middle Republic, as revealed to us by Polybius, such
an agreement is always submitted to the people for ratification,[1358]
but the close of Republican history shows cases where the Senate alone is
mentioned as the deciding authority.[1359]

But the people had at all times merely the final ratifying authority in
these matters. The diplomatic negotiations that preceded the conclusion
of an agreement with a foreign nation had ever been in the hands of
the Senate. When envoys approached an _imperator_ in the field, his
duty was to send them on to the consuls and their council; how far he
himself entered into preliminary negotiations with them depended on his
own discretion, but in the best days of the Republic he could make no
definite agreement. The mode in which the Senate received the envoys
from a state differed according as the community had already treaty
relations with Rome, or was in a state of natural war. The permanent
representation of a friendly nation—except through the vague relationship
with a noble Roman house—was a device as yet unknown; but the concession
was made to the envoys of such a state of receiving them within the
town.[1360] The representatives of the enemy, on the other hand, had no
claim to reception within the walls.[1361] The embarrassment inspired
by the approach of the suspected Eumenes of Pergamus in 166 B.C. caused
a passing regulation to be framed that no kings (the “carnivorous
animals” of Cato) should be received at Rome in person.[1362] Towards
the close of the Republican period (67 B.C.) a demand for the better
ordering of business, as well as the suspicion created by the dealings
of envoys lingering in Rome with the political coteries, caused a law to
be passed that the month of February should be devoted to the reception
of legations.[1363] As most of the envoys at this time came from states
within the Roman sphere of influence, it was an advantage to the
provincials to have a definite season set apart in which they could air
their grievances.

The most pressing demand for entering into new relations with states
naturally accompanied the organisation of a province. For the immediate
attention to this demand the conquering general was competent, although
he was sometimes assisted by ten commissioners (_legati_) appointed by
the Senate.[1364] The whole work of organisation, known as the law of
the province (_lex provinciae_), bore the name of the _imperator_, and
the _lex Rupilia_ of Sicily, the _lex Pompeia_ of Bithynia, and the law
of Metellus in Crete preserved the memory of individual victors and
organisers. The _lex_ in this case is a charter (_lex data_), not a
comitial act (_lex rogata_), and when we remember that the organisation
of the provinces took place during the period of senatorial ascendency,
we are not surprised at the omission of the formality of the consultation
of the people.

The assignment of external spheres of rule (_provinciae_) to magistrates
was one of the most important powers connected with the senatorial
administration of the provinces. We have already seen how the original
theory that a magistrate chose his department gave way to senatorial
selection. In spite of the fact that the provinces were not assigned to
specified individuals, but to holders of certain offices, this right
of bestowal put great patronage in the hands of the Senate; it might
reward or punish consuls or proconsuls by the assignment of more or
less important districts,[1365] and the lot (_sortitio_) by which the
individual holders were determined was often tampered with.[1366]

The final organisation of Italy and the provinces also gave fresh spheres
of influence to the Senate. The free cities, which extended over the
whole of Italy, and were found as privileged units in the provinces,
were subject to its controlling power. These had given up all claim to
the exercise of external authority, and it was the Senate that adjusted
the conflicting claims of states both within and without the bounds of
Italy.[1367] When the rights of a free city were held, not by treaty, but
by a precarious charter, the Senate might cancel certain grants, which,
by the terms of the charter, were revocable at pleasure.[1368] In the
details of provincial government and the relations of the subject cities
to the governor the Senate seems seldom to have interfered directly. But
we must remember that in every province the governor was accompanied by a
senatorial committee in the form of a _consilium_ composed of his legates
and of any senator who happened to be in the province.[1369] It was
his duty to refer every important matter to this council, and the most
important questions it bade him reserve for the judgment of the Senate at
home.[1370]

The power of the purse, which has been the guarantee of so many popular
liberties, was not possessed by the people at Rome. By escaping so early
the incidence of direct taxation they lost a formidable weapon with
which they might have fought the Senate. For this reason the admitted
incapacity of the latter body to impose a new tax on the community was no
great limitation to its powers after the year 167 B.C., when the Italian
_tributum_ disappeared.[1371] The control of the details of finance,
which had never belonged to the people but always to the executive, was
the mainstay of its power in this department. The circumstance that the
control of estimates had been given to occasional officials, the censors,
and that the details of expenditure had been taken from the hands of the
consuls and placed in those of the most subordinate of all magistrates,
the quaestors, sufficiently explains the growth of a central directing
authority, which may be considered in its three relations to the property
of the state, the estimates, and the expenditure.

The chief property of the state in the later Republic was the income
derived from the provinces, and it is obvious that the Senate determined
its amount when it ratified the terms of the _lex provinciae_. But the
older source of revenue—the public domains of the state—was also subject
to its control. It granted the occupation or the use of public lands
and decreed their alienation by sale or gift.[1372] It also accepted
or rejected gifts and bequests to the state, and the proposal of Ti.
Gracchus that the people should deal with the movable property left
by Attalus III., king of Pergamus,[1373] struck at one of the most
undisputed of senatorial prerogatives.

The most important estimates of those items of revenue and expenditure
which varied from time to time were, as we have seen,[1374] made every
five years by the censors. But the Senate exercised the right of
directing, even of reversing, the arrangements made by these officials;
the appeal against an oppressive contract was made to them,[1375] and
during the vacancy in the censorship they designated the magistrates who
were to preside over new financial assignments.[1376]

The control over the treasury, both in the voting of large supplies or in
detailed expenditure for definite purposes, was complete. The provincial
budget, comprising the allowances for the different governors, was voted
by the Senate, and this _senatus consultum de provinciis ornandis_[1377]
was one of its most effective means of controlling the magistracy.
The special sums voted for military or any other purposes were either
directly paid[1378] or credited by the quaestors to the commanders abroad
or to the home officials.[1379] We have already seen that it was only the
consul who could order the quaestors to pay without a permit from the
Senate;[1380] but, as the consul after the time of Sulla rarely took the
field, the Senate’s control of expenditure was finally uninterrupted even
by this survival.

If we pass from the most material to the most spiritual element in human
life, we find this also directed to a certain extent by the Senate.
Although religion in its various departments was under the control of
special guilds, yet these colleges possessed little power of initiative,
and an executive authority was necessary to carry out their will. The
announcement of prodigies was met by the Senate with forms of expiation
suggested by the priestly colleges. In the Sibylline books above all
answers might be discovered whose political was even greater than their
religious import. When the dangerous annexation of Egypt could be staved
off by a few lines on these mysterious leaves,[1381] it is no wonder
that their own guardians, the _decemviri_, scarcely dared to unfold them
without the authorisation of the Senate. The activity of the _comitia_
was sometimes hampered by the Senate’s habit of decreeing extraordinary
festivals (_feriae_),[1382] while the successful general was dependent on
its will for the duration of the thanksgivings (_supplicationes_) which
followed his victory.[1383] The reception of a new god into the Roman
Pantheon was probably in strict law a popular right,[1384] but it is one
that seems to have been tacitly conceded to the Senate.[1385]

CHAPTER VII

THE INTERNATIONAL RELATIONS OF ROME AND THE INCORPORATION OF ITALY

The peoples of Greece and Italy offer, amidst many general points
of similarity, some striking differences in their conceptions of
international relations. The pan-Hellenic sentiment, which created a
shadowy law of nations, has no pan-Italic counterpart. Outside the Greek
city-state there was but the sentiment of nationality to create rules for
human conduct; but, for this very reason, the rules, when created, were
of pan-Hellenic validity. In Italy we get narrower but closer groupings;
its history is the history of leagues, and the inevitable result of this
more concentrated life was a closeness of international ties between the
federated members which stood in marked contrast to the vagueness of the
relations between the isolated groups.

The ties of religion and of ethnic affinity, as expressed in an obvious
similarity of institutions, were, in Italy as elsewhere, the strongest
connecting forces between states; but in Italy they were but the first
rude ligaments that gave place to a stronger political bond and that
crumbled to pieces when the more enduring chain had been forged. The
festival of the Alban Mount became to the Latins, as the sacred centre of
Volsinii to the Etruscans, but the religious symbol of a lasting league.
Beyond the limits of the league the national and religious sentiment was
weak. There was no Delphi to direct the Italian peoples, and no Olympia
at which they might meet.

This isolated grouping of the Italian peoples may have been partly due to
the great mixture of the populations of Italy south of the Alps and south
even of the Apennines; but the earliest Italian history reveals the fact
that even the closely-related races of Latins, Umbrians, and Sabellians
were not connected by much closer ties of an international character
than those which bound each to the Etruscan, the Iapygian, the Gaul,
and the Greek. It is true that with the progress of time something like
an ethnic sentiment was created in the purely Italian group, with vast
consequences to the history of the world. After the Umbrian power, which
had once extended from sea to sea, had been weakened, on the left by
the Etruscan, on the right by the Celt, Rome becomes the great frontier
power, the bulwark of the group of blood-related nations against the
foreign-speaking Tuscan and the Gaul whose kinship with herself she had
forgotten; but the relation soon became political, and, therefore, more
than international. That aggregation of vague human sentiments, which is
called International Law, was not juristically stronger within the sphere
of the blood-related than it was within the sphere of the Italian group
of peoples.

Within this wider sphere of humanity, that was not yet “Italian,”
there are traces of the observance by Rome of customs relating to the
conduct of war and to negotiations for procuring peace—customs which
by their very existence show that, though the early Roman employed the
same word to designate the stranger and the enemy, a state of war was
not considered as the permanent relation even between _hostes_; which
prove, by their elaboration, the antiquity of some sense of international
obligation, and which exhibit, by the constancy with which they were
applied, the existence of reciprocal forms and duties owed by the
hostile state to Rome. The functions of the _Fetiales_, the priestly
ambassadors (_oratores_)[1386] who demand reparation, declare war and
ratify a peace, seem never to have been confined to those peoples with
whom Rome had treaty relations, but to have been extended to any nation
which had not by specific acts waged war on Rome. Four of the priestly
guild of _Fetiales_ were appointed to seek redress. These elected one
of their number to become their representative, to be for the time the
“ratifying father of the Roman people” (_pater patratus populi Romani_).
At the borders of the offending tribe the _pater_ with many imprecations
called Jupiter to witness that the grievance was established, the
demand reasonable. Three times did he make the same appeal—to the first
sojourner he met in the stranger’s territory, to the sentinel at the
gate, and to the magistrate within the walls. Thirty days were allowed
for the reply; on the first of these the standard was hoisted on the
citadel of Rome, and the burgess army gathered for the threatening war.
If an appeasing answer were not returned within these days of grace, the
_pater_ again set forth and launched a charred spear (the prehistoric
weapon of hardened wood) into the territory of the offender, with words
setting forth the menace of war.[1387] When the struggle was over it was
he who struck the peace and the sacrificial victim with a flint-stone
which symbolised the watchful Jupiter (_Jupiter lapis_).[1388] The
sanctity of envoys, other than these priestly messengers, was as
rigorously observed in the Italian as in the Greek world. A violent death
on an embassy was a martyrdom deserving of immortality, and the ancient
Rostra in the Comitium showed a group of statues erected to those who had
met their fate in the cause of peace.[1389] The neutrality of ambassadors
was exacted with equal care, and the disaster of the Allia might be
looked on as a retribution for the impious precipitancy of the Fabii who,
forgetting their sacred character, fought in the ranks of Clusium against
the Celtic hordes.[1390]

In the agreements made by generals and envoys with a foreign people, the
idea, common to most primitive minds, that it is the oath which makes
the promise binding is strikingly present. We have already touched on
the vast constitutional import of this conception in its connexion with
the question, posed but never completely answered by the too patriotic
jurists: “Who could take the oath on behalf of the Roman people?” But
the theory which on the whole prevailed, that it could not be taken
by a general in the field, not only nullified the promise so made and
rendered it a mere agreement (_sponsio_), valid between citizens but
not between strangers, but exposed the rash swearer to the extremest
penalties. With a strange inconsistency of judgment it was held that the
oath, which was no oath, laid the guilt of perjury on the conscience of
the people, unless the man who had caused the people unwittingly to
sin was offered up as an atoning sacrifice. Naked and bound, like the
sacrificial human victim of prehistoric times prepared for the altar, the
_imperator_ was surrendered to the offended people. It is not surprising
that the latter—whether Samnites, Spaniards, or Numidians[1391]—refused
to take the worthless gift from the hands of the _pater patratus_, and
preferred to continue the conflict with a people still convicted of sin.
The individual oath to return, made by a prisoner of war released on
parole, though binding on his soul alone and, as a religious obligation,
not punishable by the civil arm, was enforced by the public conscience.
One—others said more than one—of the Roman captives sent by Hannibal
after Cannae to negotiate an exchange of prisoners declined to return
on the negotiations falling through. The pretext was that they had
revisited the camp of the conqueror _after_ the oath had been taken.
Tradition varied as to the punishment imposed by Rome; some spoke of a
summary arrest and enforced return to the Phoenician camp, others of a
degradation by the censor and of a public detestation that drove the
perjurer to suicide.[1392]

Such are some of the isolated specimens that have been handed down to
us of rules of international right which Rome thought due to every
nation. But, apart from such universal duties, the Roman mind, with its
simple dichotomy of the world into enemies (_hostes_)[1393] and friends
(_amici_), recognised varying degrees of obligation as due to either
class. The _hostes_ were all states or individuals with whom Rome had no
treaty relations. With these there was no presupposition even of constant
diplomatic relations, and their absence was symbolised by the manner in
which envoys from such states were received. The tradition of “speaking
with one’s enemy in the gate” was rigorously preserved to the end of the
Republic, and the Senate had to meet a messenger from the enemy outside
the walls.[1394] The friends of Rome were those with whom she had any
relations that approximated to a federative character. There might be no
definite treaty, no specified interchange of obligations; but the vague
term _amicitia_ with kindred titles of affection was applied to the
vaguest association as well as to the closest alliance with Rome; it was
indifferently a symbol of the greatest independence or of the practical
subjection of the contracting state. The members of the military symmachy
in Italy could share this title with distant Carthage,[1395] and even the
barbarous Aedui are “kinsmen and brothers” of the Roman people.[1396]
Even in the case of these communities the perpetual representation of
mutual interests by means of permanent ambassadors—an institution still
in its infancy in the seventeenth century of our era—was naturally
unknown; but their recognition as friends granted their envoys or
representatives an entrance and an audience of the Senate within the
walls.[1397]

Closer relations between Rome and her “friends” were generally
conditioned by ethnic and their corresponding religious ties. But the
foreign element in early Rome shows that this was not universally the
case. The rape of the Sabine women in its least significance reveals
the fact of the close tie of intermarriage between Rome and a non-Latin
community; the first treaty with Carthage reveals commercial relations,
which were accompanied by some form of international jurisdiction, with a
Phoenician power.[1398]

The first, because the most universal, ties which attract our attention
as based on treaty relations are those of commerce. Commercial treaties
with the foreigner led, in the very infancy of Roman history, to the
development both of common courts and of a common code.

In the later Republic and in the Empire we have frequent mention of a
civil court which was believed to have had an international origin.
Attempts have been made to assign to this court of _recuperatores_ a
purely Roman source;[1399] but its essential peculiarities—the large
uneven number of jurors, three or five, when the ordinary civil courts
knew but one; the rapidity and simplicity of the procedure; the _formula_
framed by a magistrate and not taken from the _legis actiones_ of
the civil law—are best explained as survivals of a time when it was a
mixed court of international jurisdiction.[1400] The two or four jurors
probably represented the contracting states in equal proportions, the
third or fifth may have been an arbitrator chosen from another community;
the magistrate who gave the _formula_ would have been an official of the
town in which the mixed court sat.

But the _formula_ implied a system of legal principles, and these
could not easily be furnished by the civil law (_jus civile_) of each
contracting state. It was not Roman pride that prevented the foreigner
from participating in her native law; it was the unwillingness of the
foreigner to be made subject to a code characterised by excessive
cumbrousness, by danger and by delay, and the counter-objection of the
Roman to be the victim of similar disadvantages in the contracting state.
No merchant, to whom time meant money, would adopt the cumbrous form of
conveyance known as the _mancipatio_, when ownership could be acquired
by the simple transfer (_traditio_) known of all nations; none would
care to repeat a _formula_ (to be learnt only of the Roman pontiff),
the least error in the utterance of which was sufficient to extinguish
his claim; and the symbolic acts performed before the praetor, though
possibly dear to the Roman mind, could not have been attractive to the
foreigner. Convenience dictated a compromise, and this was found in the
gradual collection of a body of rights (_jus_) from the customs of “the
world” (_gentes_) as known to the Romans. This _jus gentium_, or body
of rights possessed by man as a citizen of the world, was a code of
private international law, and it cannot be regarded as being even purely
Italian. A nation that borrowed its alphabet from a Chalcidian city, that
imitated the military organisation of the Hellenes, that traded in the
sixth century with Sicily, Sardinia, Libya and Carthage, must have been
deeply imbued with the customs of the Greek and Phoenician world. Nor was
this code a growth of Rome’s supremacy, for her commercial preceded her
political greatness. Its origin dates back to a time probably anterior
to the Republic, certainly far earlier than the institution of the
praetorship. We have already noticed how for more than a century the
same civil judge administered both laws, that of the state and that of
the _gentes_,[1401] and how the _jus civile_ was insensibly modified by
contact with its younger relative.

But closer relations than those of commerce might exist between Rome and
states connected with her by neighbourhood or kindred. The interchange
of the rights of private law, of ownership and of marriage, which the
Greeks called ἰσοπολιτεία, was a natural out-growth of the Italian
tendency to close political association. Such communion rendered each
member of the contracting states in private law a _civis_ of the other;
the _conubium_ carried with it the _patria potestas_ and all the family
rights that flowed from this power; the _commercium_ allowed the citizen
of the contracting state to own Roman land, to convey property by Roman
forms, to make a contract by the ceremonial of the _sponsio_, to inherit
from a Roman or to make a Roman his heir, while it gave the citizen of
Rome corresponding rights in the alien city. There could be no question
here of mixed tribunals or of private international law. The courts of
each state were fully competent; if we may judge from the early relations
of Rome with the Latin cities, the place in which the contract had been
concluded, or, in other words, the forms of the contract, determined the
competence of the court.[1402]

Still more definite bonds of union than these relations of private law
(although often their primary condition) were certain political creations
which made the ties between the states something more than international.
It was a nucleus approaching a federal government which gave the first
impulse to the extension of Roman power in Italy. Rome, as known to us in
legend, is never quite a city-state. She is an offshoot of Alba Longa,
the titular head of the Latin league. Tradition says that her conquest
of her mother city led to her occupying a singular position with respect
to the thirty cities of this league. She was one of the contracting
parties, the cities were the other; she was the equal, not the member,
of the group. The acceptance of this position by the confederate cities
shows their eagerness for the protection of the frontier town; but
the protectorate became burdensome, a war ensued, and Roman rule was
shaken off only to be reimposed on firmer lines by the strong hand of
the Etruscan dynasty represented by the Tarquins. Rome now became one
at least of the religious centres of the league, and the Diana of the
Aventine symbolised the lasting union of the Latin folk.[1403] The
expulsion of the kings, while it stripped Rome of territory, shook for
a time the allegiance of the league, and it was not until 493 B.C. that
the old conditions were renewed; for the details that might in historical
times be read in the treaty attributed to Sp. Cassius were doubtless but
a replica of the old terms of the alliance. Eternal peace was enjoined,
mutual support was to be given in war, and each contracting party was
to share equally in the booty. The supreme command in war was to be
held now by the Roman general, now by the commander of the confederate
forces.[1404] But the closest bond was that of ἰσοπολιτεία,[1405] the
mutual participation in _commercium_ and doubtless also in _conubium_,
which was accompanied by the proviso that the court of the state,
in which the contract had been concluded and the case was therefore
tried, should give speedy satisfaction to the claimant from each
community.[1406] Reciprocity such as this was naturally accompanied by
freedom in choice of domicile. The Roman settled in the Latin city and
the Latin in the Roman retained the private rights of both communities.
It is doubtful whether at this period the transference of residence was
accompanied by a share in the voting rights of the state in which the
immigrant sojourned.[1407]

To this association a third factor was soon added in the Hernican
league.[1408] The extension of the confederation beyond its ethnic limits
was a grand strategic move; for by the inclusion of the Hernici, Rome now
presented a compact chain of fortresses against her enemies of the east
and south, the Aequi and the Volsci. Their military importance explains
why the newly admitted members were raised to the level of the older
allies. They boasted the same reciprocity of private rights with Rome,
they shared in a third part of the spoils of war, and they joined with
Romans and Latins in the work of common colonisation.

This colonisation was at once a military and social measure, and the
means by which the league extended its geographical and political limits.
The custom of war, which permitted the Italian tribes to annex a third
of all conquered land, had ever been used as a means of expansion by the
powerful league. And this expansion was a very real one; for the Latin
colonies (_coloniae Latinae_), as they were called, were full members
of the society that gave them birth. Such towns as Suessa Pometia,
Cora, and Velitrae had been military outposts in the territory of the
Volsci; and now the Volscian, the Rutulian, and even the Etruscan were
oppressed with the weight of new foundations by the three great powers.
But the year 384 seems to mark a strange and unaccountable break in the
history of this extension. Of all the Latin colonies founded after that
date, but one is mentioned as a member of the confederacy—a circumstance
which has led to the conclusion that Rome (whether with or without the
consent of the other members) had cut off all future joint foundations
from the religious and federal privileges of the league. Otherwise
the consequences of this exclusion were not great; the new towns were
military allies of the league, not of Rome, and their citizens still
possessed those private rights which always remained of the essence of
_latinitas_. Forty-seven cities—partly old Latin towns, partly Latin
colonies earlier than 384—still participated in the Latin festival;
that within this circle a distinction was drawn between thirty voting
and seventeen not-voting members is an insecure conclusion based on
the attempts of the annalists to reconstruct the traditional number of
thirty Latin cities; there may still have been thirty votes, but these
may well have been distributed in some way over the forty-seven cities
of the league. That the closing of the Latin confederacy was due mainly
to Roman pressure is perhaps shown by the series of dangerous revolts
amongst its cities, which often sided with their ancient enemies the
Volsci. The Hernicans were as eager to shake off the yoke; but Rome
emerged from both crises with her power strengthened and her commonwealth
enlarged. The latter result was due to a renewed employment of her old
device of absorption. Tusculum in 381, and Satricum not long afterwards,
had their commonwealths destroyed, and were forced, as a penal measure,
to accept the full or partial Roman citizenship.[1409] At the close of
the struggle in 358 the leagues were renewed and the relations of Rome
with the two groups of states remodelled, probably on harder terms. In
the Samnite war which followed, the Latin cities first clung to Rome,
for they preferred a native to a Sabellian hegemony; but Rome’s rapid
conclusion of a treaty of peace and alliance with the Samnites, which
the league was asked to accept and not to ratify, was taken as the final
proof of actual subjection concealed under the name of a hegemony. The
Latins made their last demands; they gave up their position as a military
confederacy, but they did not wish to be absorbed into the body politic
of Rome. They asked for the golden mean—a system of federal government,
but one that should still preserve the fundamental distinction between
Rome and the confederate cities. One of the consuls was to be a Roman,
the other a Latin, and half the Senate was to be chosen from Latium. But
the civic feeling was too strong at Rome; she would not herself surrender
the communal constitution which she had so often wrested from others;
she rejected the alternative which would have paralysed her power as a
conquering state and made of her but a federal capital. Her “No!” to the
Latins was one of the turning-points in the history of Italy and of the
world.

The battles of Veseris and Trifanum gave her the victory, but she was
sorely puzzled as to the use to be made of it. The league was to be
broken up, its members isolated, and this work of disintegration was
carried through with thoroughness; not only were the federal assemblies
(_concilia_) abolished, but no right of intermarriage or of commercial
intercourse (_jus conubii et commercii_) was permitted between the
cities.[1410] But how to deal with the individual communities was a
far harder problem. The incorporation which had been the punishment of
isolated revolt could not be applied to the _disjecta membra_ of a whole
league, for it would have changed the city-state into a nation. Hence
the plan adopted was a compromise between the old policy of absorption
and a new principle—that of alliance. Aricia, Pedum, and Lanuvium
lost their independence and received the full Roman franchise; while
Tibur, Praeneste, Lavinium were compelled to conclude separate treaties
(_foedera_) with Rome, and formed the nucleus of the ever-growing class
of _civitates foederatae_. Thirty years later (306 B.C.) a similar fate
befell the remaining league of the Hernici. Their loyalty had not stood
the test of the second Samnite war; but there were degrees of guilt
amongst the cities. Anagnia, the chief centre of the revolt, and other
incriminated towns, were given merely the private rights of citizenship;
the full citizenship was indeed offered to the three loyal towns of
Aletrium, Ferentinum, and Verulae, but, on their expressing a preference
for their own local constitutions and codes, they were permitted to
retain an autonomy guaranteed by separate treaties.[1411] The break up
of the Hernican league was only an incident in a triumphant career of
conquest that was never followed by annexation. The Samnite wars and
the struggle with Pyrrhus had ended in the acknowledgment of Rome’s
supremacy by every nation south of the Macra and the Rubicon. The three
civilisations of Greece, Tuscany, and Italy furnished her indifferently
with allies; the town and the tribal union were alike represented in her
symmachy. Tibur and Praeneste in Latium, Aletrium and Ferentinum amongst
the Hernici, Volaterrae and Clusium in Etruria, Iguvium in Umbria, the
Picentes, Marsi, and Peligni amongst the Sabellians, and Greek cities
like Neapolis in Campania or Rhegium amongst the Bruttii, are types of
the states and peoples that she numbered amongst her _socii_.

The effect of this unification, and of the tendencies which had preceded
it, was to divide the inhabitants of Italy into two broad classes—those
of citizens (_cives_) and those of allies (_socii_) of Rome. The first
class (far the smaller numerically) represented the earlier effort at
incorporation; the second was the consequence of the later policy
which founded a military league. Minuter distinctions of rights, which
necessitate cross-divisions in the classification of the states,
sometimes obscure this fundamental analysis; but it was never lost sight
of and was the guiding light to the Roman lawyer, as it is to us, in his
path through the labyrinth of the complex organisation of Italy.

The _cives_ of Rome bear this name either in a full or a partial sense;
they may be citizens with voting rights or citizens in private law alone
(_cives sine suffragio_). If we fix our attention on the first of these
classes, we find that historically there were two modes in which the
_civitas_ was gained by a commune outside the city. It might be due
to the incorporation of an already existing state, or it might be the
consequence of the planting of a Roman colony. The merging of some of
the Latin communities in Rome[1412] has already furnished instances of
the former mode of conferment; the Roman colonies which illustrate the
second (_coloniae civium Romanorum_) were outlying fragments of the
Populus, planted as a defensive garrison on the third of the conquered
land, which was the legitimate spoil of the invader. A social was from
the first combined with the military object; but the enforced exodus of
portions of the burgess body on some occasions[1413] proves that, in this
form of colonisation, the interest of the state came before that of the
individual. It was, in fact, a military levy ordained by law, although
voluntary profession usually took the place of the compulsory summons of
the regular _dilectus_. In military array, with standards flying,[1414]
the squadron marched to the appointed place under the leadership of the
commissioners appointed by the people. When a new town was to be founded,
or an old one reconstituted, it was done with the imposing ceremonies
that marked the birth and enlargement of Rome. After the will of the gods
had been tested and happy omens gained, the commissioners, with veiled
heads and loins girt up, guided a plough, to which were yoked an ox and a
cow. They thus drew the _pomerium_ of the state, only staying the furrow
where the gates of the city were to be.[1415] The greater number of these
settlements of Roman citizens were for the protection of the Italian
coasts, and the members of the maritime colonies (_coloniae maritimae_)
were allowed exemption from active military service.[1416] Few in numbers
(often but a handful of 300 men), and settled in an already existing
political society, the colonists formed a privileged patriciate amongst
its older members. The town-council, and such subordinate magistrates as
Rome allowed them to possess, were probably chosen from the new settlers
alone; but, as the autonomy which they enjoyed was not great, as they
possessed no high judicial magistrates of their own, and as their voting
power at Rome was more a potential than an actual right, they differed
little from the native inhabitants, who as _cives sine suffragio_
came equally under the jurisdiction of the Roman courts and their
representatives.

Whether the commune of Roman citizens had had a natural or artificial
growth, it was never in early times a true state (_civitas_). Roman law
knew of ἰσοπολιτεία, but not of the closer bond of συμπολιτεία; and
the principle that no Roman citizen could be a full member of another
state, although in the later Republic it had given place to the theory
of the municipal independence of the _civis_ was always maintained in
international relations with states of the outer world.[1417] As the
negation of state life implied the negation of communal independence,
we are not surprised to find that none of these communities of Roman
citizens possessed a true civic organisation of its own. We cannot
define the rights of their town-councils, we cannot assert the absolute
non-existence of popular gatherings for certain purposes; but the absence
of the _imperium_ and of a true judicial magistracy is clearly discerned.
These communes fell under the immediate civil jurisdiction, originally
of the consuls, later of the _praetor urbanus_. Originally it may have
been necessary for every case not settled by voluntary arbitration
to be brought to Rome, but the distance of some of these towns from
the capital would have soon rendered this principle of jurisdiction
impossible. The modern solution, that the judge should go on circuit,
could not be thought of in a state where the bench consisted of a single
man, and where this individual was prohibited by law from leaving the
city for more than ten days during his year of office.[1418] The only
alternative was furnished by the favourite Roman device of delegation.
The praetor nominated praefects for jurisdiction (_praefecti juri
dicundo_), and these were sent, sometimes as standing magistrates,
sometimes perhaps as mere circuit judges, through the Roman towns, which
were thence known as _praefecturae_.[1419] Delegation implies either a
division of competence or, in the case of the lower court possessing full
jurisdiction, an appeal to the delegating authority. There is no trace
of the latter practice at Rome, and a systematic division of authority,
although motives of convenience may sometimes have led the praetor to
permit it, is inconsistent with the Roman idea of jurisdiction flowing
direct from the _imperium_. Possibly the praetor permitted the praefect
to regulate almost every kind of contentious jurisdiction, subject to
his own right of summoning any case he pleased from the delegate to
Rome. By a legal fiction the courts of the _praefecturae_ were held
to be within the praetor’s sphere of competence, i.e. within a single
milestone of the city; they were, to use the technical Roman expression,
_judicia legitima_. No trace whatever has been preserved of the criminal
procedure applied to such communities. The fact that the praefect was
the delegate of a civil magistrate would not prove that he was incapable
of exercising criminal jurisdiction, for _jurisdictio_ of every kind is
latent in the praetor’s _imperium_. All higher jurisdiction was reserved
for the people; but there was only one _populus Romanus_, that of the
city of Rome. Hence when the citizen of Ostia or Tusculum was accused of
an offence, the penalty for which demanded a popular sanction, we may
assume that he could either make the appeal, through a fiction like that
underlying the civil jurisdiction, in spite of his local separation from
Rome, or that he stepped, or was brought within, the first milestone of
the city, the limit inside which the _provocatio_ could legally be made.

The second type of _cives_ are those without the right of suffrage (_sine
suffragio_). There can be little question that the idea of this _status_
was derived from Rome’s relations with the cities of the Latin league; in
her process of absorption, however, she conferred it on towns to which
she did not grant the other typically Latin rights; in this way she
made of it an independent _status_. The Etruscan town of Caere is said
to have won this right in 353 as a gift for good service to Rome. After
the dissolution of the Latin league in 338 B.C. a group of Campanian
townships, Capua, Cumae, Atella, and Calatia, were with (the then Latin)
Fundi and Formiae brought into this relation with the now dominant city
of Latium;[1420] others nearer home, such as Arpinum of the Volsci, were
similarly rewarded or absorbed (303 B.C.),[1421] while the _status_ was
imposed as a means of degrading and reducing to impotence rebellious
townships such as Anagnia, the leading city of the Hernici.[1422] The
motive of the conferment, although it might make a difference to the
rights of the towns, produced none in the relations of their respective
_cives_ to Rome.

The _civis sine suffragio_ was known as a _municeps_, and the state, all
of whose full members enjoyed this _status_, derived from its occupants
the name of _municipium_. The name of this type of citizen—the “taker up
of burdens”—aptly expresses his subjection to the chief duties (_munera_)
of Roman citizenship, such as service in the Roman legions, forced
labour in raising defences, the payment of the war-tax (_tributum_),
and his exclusion from the usually corresponding rights of suffrage and
of office;[1423] it emphasises the fact, strange to the early Roman
mind, of public duties not balanced by public rights, but it contains
no implication of the strangest characteristic of the _municeps_—one
almost unknown in ancient legal systems—the possession of a personality
in private which is not the result of a personality in public law.
The _municeps_ possesses _commercium_ with all its consequences; he
possesses _conubium_ with Rome; he is, from the point of view of private
law, in every sense a citizen.

This possession of citizenship carried with it as a necessary
consequence his subjection to the praetor’s court. His home, the
_municipium_, is therefore, equally with the community of full Roman
citizens, a _praefectura_, and the rules of jurisdiction were the
same in both classes of states. To the praefects nominated by the
praetor were in course of time added others elected by the _comitia
tributa_, and reckoned amongst the minor magistrates known as the
_viginti-sex-viri_.[1424] These latter were the four praefects of Capua,
Cumae, and the Campanian coast; but, in regard to the mode of election,
there is no difference discernible between the judicial magistrates of
the _municipia_ and those of the communities of Roman citizens. Elected
praefects visited the _municipium_ of Capua and the Roman colony of
Puteoli, while nominated praefects held their court in the colony of
Saturnia and the municipal town of Anagnia.[1425]

But the praefect was far from representing the higher functions of
government in every _municipium_. These towns fall into two broad
divisions, not according to the rights which they receive, but according
to the rights which they retain. The _civitas sine suffragio_ might
be granted _honoris causa_ to a state which maintained its complete
independence or its communal autonomy. It was thus conferred on Capua,
Cumae, Formiae, and Fundi,[1426] and the gift of the partial citizenship
under these conditions was a valued privilege. It enabled a Capuan to own
Roman land, to settle on the _ager publicus_, to marry into the noble
houses of Rome, and to serve, not in the auxiliary cohort, but in her
army or in the legion raised from the _municipes_. But meanwhile his own
magistrate, the _meddix tuticus_, administers in the Campanian courts
the native Sabellian law,[1427] his senate deliberates, and his popular
assembly decides. Sometimes, as in the case of Capua, the state is still
bound by treaty relations to Rome, and the two conflicting principles of
armed alliance and of absorption are for once commingled.[1428]

Yet, in spite of their independence, there is every reason to believe
that the inevitable praefects visited these states. We must assume, at
least in the cases where autonomy reached the grade which is visible
in Capua, that a dual system of law prevailed in these communities;
the court and the procedure would follow the form of contract, whether
Sabellian or Roman, and the parties might appear indifferently before
the Capuan _meddix_ or the Roman praefect. In other cases, where a large
measure of administrative autonomy is visible, but where no magistrate
with a higher rank than that of aedile is found within the state,[1429]
it is possible that Roman law alone prevailed and that the Roman praefect
was the only judge.

The lower class of _municipia_ was represented by states “whose whole
commonwealth had been merged in that of Rome.”[1430] Of this class
Anagnia, the degraded town of the Hernici, was a type.[1431] Stripped of
all the active rights of citizenship, and under the direct government of
a Roman praefect, the members of such towns possessed no personality in
public law at all. Their position was that of the free Plebeians previous
to their admission to the _suffragium_ and the _honores_.

The second principle in Rome’s Italian policy, first projected after the
close of the Latin war and carried to its completion after the struggle
with Pyrrhus, resulted in a great military hegemony over states, whose
treaty relations enabled them to call themselves the “allies” (_socii_)
of Rome. Collective names were soon devised to indicate the closeness of
the union thus formed; at first the confederates were “wearers of the
toga” (_togati_), a name that applied equally to the Latin, Sabellian,
and Etruscan. But the introduction of the Greek _pallium_ into the league
destroyed this basis of classification; and the later term _Italici_ was
evolved, a word whose geographical signification emphasises the idea of a
territorial limit to certain rights—one which, as we shall see, was not
rigorously preserved, but which marks the distinction, valid alike for
the Republic and the Principate, between Italy as the privileged and the
provinces as the unprivileged world.

The condition of a conquered town, whether in Italy or the provinces,
before its alliance with Rome, is described by the word _deditio_, a term
which implies absolute surrender to the power (_ditio_, _potestas_)[1432]
or to the honour (_fides_)[1433] of the Roman people, the two latter
expressions being to the Roman mind legally equivalent.[1434] Such
a _dediticia civitas_ is in the negative condition of an absolute
suspension of rights, and remains in this case until some are given back
by Rome with a guarantee of their permanence. _Deditio_ is, therefore,
a temporary _status_, although it might be occasionally prolonged as a
penal measure, as it was in the case of the revolted Bruttii after the
Hannibalic war.[1435] In Italy, as a rule, the terms that Rome dictated
were those of a military alliance, the conditions for membership of this
being, firstly, external sovereignty (_libertas_), as conditioned by the
terms and objects of the league;[1436] secondly, internal independence—a
condition which the Greek cities called αὐτονομία, and which, in a
Latin charter to a provincial town, appears in the form of the permit
_suis legibus uti_;[1437] thirdly, a basis for these rights, as also
for the obligations which these states owed to Rome. In dealings, with
the extra-Italian world this basis was either a charter (_lex data_),
given by the Roman people and revocable by them, or a treaty (_foedus_),
equally sanctioned by the people but irrevocable, as being sworn to by
the two contracting parties; its revocation could only be the consequence
of a genuine _casus belli_. In the first case the state is a _libera
civitas_, in the second a _libera et foederata civitas_,[1438] or, in its
more general and briefer designation, a _foederata civitas_.[1439] In
Italy positive evidence furnishes us only with the _foederatae_, but the
existence of the _liberae civitates_ must be assumed, since, immediately
on the beginning of provincial organisation in Sicily, this _status_ is
adopted.

In Italy also there was doubtless the distinction between the higher and
the lower kind of _foedus_—the _foedus aequum_ and the _foedus iniquum_.
In all treaties concluded between Rome and cities in her symmachy there
was a recognition of partial dependence in the latter; but some of these
treaties contained a “suzerainty” clause to the effect that the state
in question should “in a friendly spirit respect the majesty of the
Roman people.” This clause did not diminish the _libertas_ of the state
accepting it, but merely strengthened the position of Rome.[1440] It was
a characteristic of the _iniquum foedus_.[1441]

The duties of the federate cities expressed in their name (_socii_,
σύμμαχοι) were primarily the furnishing of requisitions whether in men
or ships. The latter were demanded from the Greek cities of the coast,
but Italy as a whole furnished the auxiliary land armies of Rome, the
_togati_ liable to the levy.[1442] Every state had to keep a register
of its effective strength in accordance with a principle of assessment
(_formula_).[1443] The general demands of Rome were specified in the
treaties; the special levies required at any given time were dictated by
the Senate and consuls.[1444]

Military requisitions necessarily involve pecuniary burdens. But these
were all indirect. Each city had complete control of its own finances; no
tribute was imposed by Rome, and the antithesis to the _socius_ is the
_stipendiarius_.[1445] This immunity was originally based on the theory
of treaty relations; later, when the view had grown up that the tribute
paid by the stipendiary states was the result of their precarious tenure
as _possessores_, the Italians were held to be owners of their land. The
_jus Italicum_ of the Principate confers on any state to which it is
granted quiritarian ownership, and, therefore, immunity from taxation on
land.

Enjoyment of their own laws and control of their own courts were other
symbols of the autonomy of the allies. Rome could not legislate for the
Italian _socii_, and they were beyond the judicial authority of the Roman
magistrate in Italy.

But the necessities of social and commercial intercourse rendered it
advisable that the Italian allies—more especially the Latins—should be
brought into close legal relations with Rome, and the acceptance by
the latter of innumerable civil laws of the central state is attested
by Cicero.[1446] The Italians are known to have been bound by a
_plebiscitum_ concerning loans[1447]—this, however, only made contracts
of a certain kind between them and Romans invalid, and may not have
demanded their consent; but their formal acceptance must have been
required for the Didian law, which extended the sumptuary regulations of
the _lex Fannia_ to all the _Italici_.[1448] The “free” as well as the
“federate” city has the right to accept or decline a legislative proposal
put before it by the Roman government.[1449]

Closest of all to Rome were the Latins. As members of federate cities
they were amongst the _socii_,[1450] and it is only as a class with
special privileges that they are distinguished from the latter.[1451]
_Latinitas_ had, through the efforts of colonisation, long lost its
geographical and ethnic significance. It was the name for a _status_
often accepted by Roman citizens, which combined the anomalies of
sovereignty and a partial Roman citizenship. The sovereign rights are
those possessed by the _socii_, the civic privileges were originally
those held by the _municipia_; but it is possible that on and after
the foundation of Ariminum and the last twelve Latin colonies[1452]
_commercium_ alone was granted, _conubium_ refused.[1453] The
most distinctive privilege of the Latin had been the concession of
facilities for acquiring Roman political rights. A Latin who migrated
from his town and became a domiciled immigrant (_incola_) of Rome had
retained his civic rights in private law, and gained a limited power
of suffrage.[1454] He could even by complete expatriation (_exilium_)
surrender his own _civitas_ and attain the full Roman citizenship.
But the conditions subsequently imposed on this right[1455] were
evaded, immigration continued unchecked, and there was a danger of the
depopulation of the districts from which the exiles came. This evil
suggested the later method, which gave the Latins admission to the
_civitas_. The holder of a magistracy in his native town was, by the mere
fact of his position, to become a full citizen of Rome. It is improbable
that this right replaced the right of exile possessed by already
existing Latin towns, and the date of its origin is unknown; but it
possibly accompanied the remodelling of Latin rights in 268 B.C., and is
henceforth the typical privilege of the Latin colony.[1456] Another mode
in which the individual Latin could acquire the Roman _civitas_ was by
conducting a successful prosecution under the Acilian and Servilian laws
of extortion.[1457]

The freedom of the cities, whether Latin or Italian, seems to have won
rigid respect from Rome and her magistrates. The burdens of military
service were, indeed, unevenly distributed between the central city and
her allies,[1458] while the spoils of war were mainly for the Roman. But
it was a shock and a surprise when in 173 B.C. a consul made personal
requisitions on the federate city of Praeneste.[1459] The lesson once
learnt was only too faithfully followed, and the illegal demands of Roman
officials were accompanied by acts of capricious violence.[1460] But
the burden of service and the misuse of power were not the only motives
urging the allies to seek the _civitas_ of Rome; nor was it merely a
sentimental desire to be invested with the Roman name. The citizenship
had a positive value both as a protection and a source of gain. The
protection against capital or corporal penalties tacitly accorded to
Romans by provincial governors could not be claimed by the allies, and,
although there is no evidence that Rome, in her final organisation
of the Italian confederacy, continued her early policy of inhibiting
_commercium_ between the towns, yet citizenship had a commercial value.
Ownership of land in the provinces was protected by the praetor and the
proconsul, but only when it was held by a Roman. To the Roman trade with
the barbarian was secure, to the Italian precarious; and everywhere
he had to face the competition of the commercial companies of Roman
knights. The grounds of interest coincided with those of sentiment
in producing a demand which the progressive party amongst the Romans
strove to meet. The first attempt was made through a law of the consul
Flaccus in 125 B.C.,[1461] the second by one of C. Gracchus in 121, the
latter law probably offering citizen rights to the Latins and Latin
rights to the other allies.[1462] The final proposal of Livius Drusus
in 91 was probably an unmodified extension of the _civitas_,[1463] and
it was the failure of this measure that led to the Italian revolt.
A new suggestion for a solution of the problem of the relations of
Rome to Italy sprang from the organisation of the hostile states. A
federal capital, Corfinium, now Italica, was created, and a provisional
federation of eight states formed, one which was intended ultimately
to embrace the whole of Italy. The Roman, or rather Italian, pattern
was followed in the new constitution; it possessed two consuls, twelve
praetors, and a senate of five hundred;[1464] but both the magistracies
and the senate were of a federal type. The issue of the war was to
determine whether Rome should remain the leading state or become a mere
member of an Italian confederation, although the unlikelihood of the
giant city’s settling down to this position may have appealed to some
of the federal leaders.[1465] Unless a redistribution of territory and
population had been effected, Rome would have been the Thebes of the
league, and the fate of the Empire would have been in suspense, for a
federal government’s capacity for imperial rule had yet to be tested.
By timely concessions Rome saved her position as the head of the
confederacy. By the _lex Julia_ (90 B.C.) all the Italian states that
had not revolted were offered the _civitas_,[1466] and this was followed
by the _lex Plautia Papiria_ (89 B.C.), which offered the _civitas_ to
the _socii_ and _incolae_ of the allied cities in revolt.[1467] These
measures effected a considerable extension of the citizenship, but
other means, of which we are ignorant, must have been adopted for the
gradual incorporation of communities, many of which still remained for a
considerable time in rebellion against Rome.[1468]

The work of incorporation immediately raised two problems. The first
was the question of the voting rights of the new citizens. These rights
were at first grudgingly accorded to prevent the new citizens swamping
the old. The _novi cives_ were enrolled in but eight of the existing
tribes.[1469] But this compromise could not last long; redistribution
became a party cry, and even the conservatives felt the damage done to
their cause by a prolonged opposition to the Italian vote. The measure
of Sulpicius (88 B.C.), which distributed the new citizens over all
the tribes, was indeed repealed with his other laws; but its principle
seems to have been adopted in a decree of the Senate of 84 B.C.,[1470]
and the equality of the Roman and Italian vote was henceforth never
questioned. The vote itself was not of the importance anticipated. It
was, in the first place, rendered ineffective through lack of a system
of representation. Even had such a system, planned on a small scale by
Augustus,[1471] been realised, it is questionable whether it could have
saved the Republic. The Empire had to be garrisoned by professional
armies, and these could not be found in Italy. The military and the civil
power would in any case have been opposed, and the conflict must have
ended in a victory for the former. But, so far as the extension of the
_civitas_ did affect future politics, it was only to create a dualism
between the Roman proletariate and the Italian country voters. They
had different ideals and different leaders. But the former were on the
spot, ready for any legislative work, and in the troubled politics that
ushered in the monarchy it was they who supported those champions of
freedom who replaced senatorial rule by a military despotism. The ideal
of the Italian was quiescence; the scattered voters with no corporate
organisation were more prone to look to persons than to causes; sometimes
there was a wave of municipal enthusiasm, but many an Italian township
recognised no leader but its Roman patron, and saw in his success at the
polls the highest use to which they could put their suffrage.

The second great problem was that of the future administrative relations
of Rome to these incorporated townships. The growth of the municipal
idea was not a new one. Even as early as the beginning of the second
century B.C. the possibility had been demonstrated of combining active
internal independence with the possession of the full Roman _civitas_.
Arpinum had received the full citizenship in 188 B.C., and its citizens
vote henceforward in the Cornelian tribe;[1472] but its internal autonomy
was not destroyed, for the town was still legislating for itself in 115
B.C.[1473] Meanwhile there are signs that a higher type of organisation
was being given to Roman colonies; at least duovirs, who may be _duoviri
juri dicundo_, are found at Puteoli in 105 B.C.[1474] This idea of some
political and judicial independence being enjoyed by townships, which had
become a part of Rome, was worked out on the grandest scale after the
social war; but the turbulent times which followed were not suited to
comprehensive municipal legislation, and it is not likely that a definite
system, which adjusted local to central powers, was developed before
the Augustan period. Something had however been done in Cicero’s time.
Here and there we find a local constitution remodelled,[1475] and there
is evidence that there was already some division of competence between
the local magistrate and the _praetor urbanus_ in civil jurisdiction—the
defendant being in some cases compelled to give bail (_vadimonium_) to
bring his case to Rome.[1476] This principle of a limitation of the
power of the local courts is found fully developed in a _lex Rubria_
which deals with the organisation of Cisalpine Gaul. This district had
held an anomalous position from the time of the social war. Although
still a province, its towns had been given Latin rights in 89 B.C.[1477]
This was interpreted by the democratic party as a forecast of the
citizenship, for Gallia Cisalpina was certainly enrolled in Rome by the
revolutionary government of Cinna or his successors.[1478] The grant,
however, was not approved at the Sullan restoration, and its validity
was disputed until Caesar renewed the gift in 49 or 48 B.C.[1479] Two
or three years earlier he had busied himself with the creation of
an Italian organisation in the Gallic towns;[1480] but, even after
his conferment of the citizenship, the incorporation of the district
into Italy was not immediately accomplished. It remained technically
a province until 42 B.C., when Octavianus gained the consent of the
Senate to its “autonomy,”[1481] i.e. to its recognition as a group of
Italian townships. It is doubtful whether the _lex Rubria_ belongs to
the epoch of the Julian or the Augustan organisation;[1482] but it
is practically certain that it extends an already existing Italian
system to the new district. The chief characteristic of the system is a
division of power between the praetor at Rome and the magistrate in the
municipal town. In the fragment of the law which we possess this division
is manifested in two particulars. The right of declaring bankruptcy
(_missio in possessionem_) is reserved for the praetor, although the
provisional arrest of the debtor (_duci jubere_) may be ordered by the
local magistrate. Again, in the action for the recovery of a loan and in
those arising from some other obligations, all cases involving a sum
over 15,000 sesterces must be remitted to Rome, the local magistrate
having the right to enforce on the parties bail (_vadimonium_) for
their appearance there.[1483] These fragmentary notices are an index
to a principle which was doubtless fully elaborated in the Augustan
legislation.

A tolerable degree of uniformity was also secured in the political
structure of the towns of Italy. It was but a development of the typical
Italian constitution of magistrates (_magistratus potestatesve_),[1484]
senate (_senatus_, _curia_, composed of _decuriones conscriptive_), and
popular assembly (_comitia conciliumve_, composed of _municipes_ and
sometimes of _incolae_); and the _lex Julia municipalis_ of Caesar (45
B.C.) ordains a uniform qualification for the local magistracies and
senates, and enjoins that the local census shall be taken in conjunction
with that of Rome. But, though the general lines of organisation were the
same, this uniformity was chiefly the result of growth, not of creation.
No effort was made at securing a common nomenclature either for the
states or for their officials. Caesar’s municipal law shows _municipia_,
_coloniae_ and _praefecturae_ existing side by side,[1485] while
inscriptions show titles for officials, such as dictator or praetor,
which may be as old as those of Roman magistrates.[1486]

CHAPTER VIII

THE ORGANISATION AND GOVERNMENT OF THE PROVINCES

When Rome had asserted her supremacy over the greater part of Sicily
at the close of the first Punic war, a new problem in organisation was
presented to her. She held, perhaps rightly, that these new dependencies,
with their transmarine position, fickle politics, and in some cases
Carthaginian sympathies, could not safely be included in the military
symmachy of Italy; so she substituted tribute for military service,
placed the command of the cities of a wide district under the guidance
of the personal _imperium_, and created the first permanent external
department of administration (_provincia_). The government which had been
adopted for Hellenic cities was still more necessary for the barbarians
of Spain, a country which Rome had not sought but which military
exigencies alone warned her not to leave. The recognition of Empire
in the West was rapid and easy, for the effective government of Italy
seemed to involve the control of the Tyrrhenian Sea. The Senate showed
greater hesitancy in accepting a similar Adriatic policy, and declined
to recognise that Rome had permanent interests even in eastern Europe
of a magnitude that should lead to Empire. War followed war, Greece was
once and Macedon twice at her feet, but on every occasion she declined
to annex. It was not until experience had proved the costliness and the
danger of a protectorate that in 146 B.C. Macedonia was recognised as
a province with Achaea as its annexe. The troublesome relations with
Carthage had meanwhile ended in war and annexation, and what had hitherto
been rather a distant problem—Rome’s relations with the potentates of
Asia—became, as the years rolled on and as Roman trade struck deeper
roots in the East, one of paramount concern. The history of eastern
Europe was repeated in Asia, and although Rome had already a foothold
in Anatolia through her acceptance of the kingdom of Pergamus, the
death-blow to the protectorate system in these regions was first struck
by Pompeius’ organisation of the East at the close of the Mithridatic
wars (65-63). Further extensions in the West and North, which resulted in
the conquest of further Spain and of Gaul, were due to the enterprise of
individual commanders, or to the search for a frontier which should be a
permanent protection against barbarian invasion; and at the close of the
Republic the list of Roman provinces had risen to fifteen.[1487]

The idea of a province was that of an aggregate of states (_civitates_);
where Greek or Phoenician civilisation had penetrated, these states
were cities, but sometimes, as in Gaul and Spain, they were cantons
or tribes. Natural political associations were usually chosen as the
units of government, although formidable combinations were broken up,
and the numerical regulation of the government centres in a province
was an integral part of its organisation. Thus the number of communal
unions was in Sicily 68,[1488] in Asia 44,[1489] and 64 in Transalpine
Gaul.[1490] Such aggregates probably include the free and federate
states, which, although geographically, were not juristically within the
province at all. The cities which were _liberae_ and those which were
_liberae et foederatae_ differed, sometimes perhaps in the degree, but
always in the basis, of their rights. The latter had the grant of their
rights embodied in a sworn treaty (_foedus_), which was the product in
the earlier Republic of Senate and people, in the later of either of
these powers,[1491]—a guarantee which was meant to be perpetual, and the
breach of which was either an act of war or its result. A charter (_lex
data_), on the other hand,[1492] which made a city only “free” might be
revoked at any moment. The rights common to both groups of states are
practically those of the Italian communes[1493]—a control of their own
finances, a free enjoyment of their land which exempted them from the
payment of tribute, and above all a use and enjoyment of their own native
law[1494]—and both agree in being entirely outside the sphere of the
governor’s jurisdiction.[1495] He could enter such a privileged city only
as a guest, and although for purposes of convenience great central cities
which were free, as Antioch in Syria and Thessalonica in Macedonia, were,
from their position as natural capitals, chosen as the residence of the
governor, he merely exercised jurisdiction in these towns, not over their
citizens. More distant still from provincial rule were the allied kings
(_reges socii_) on the frontiers. Their independence was less conditioned
than that of the free and allied cities, for they were bound to furnish
less definite assistance to Rome in time of need, and their foreign
activity was not wholly destroyed. But the chief reason why in a list of
Rome’s friends they appear in a separate category[1496] is that a treaty
with a king was not, like one with a Republic, regarded as eternal. It
was a personal obligation, and its perpetual validity depended on its
renewal with each successive occupant of the throne.

States which belonged to neither of these categories were subject or,
as the phrase ran, tributary (_stipendiariae_), the test of subjection
being the normal one in the ancient world of the payment of a tax to
a superior. Yet these too had their rights and their charter. The
guarantee, however, was no longer individual but collective, and was
contained in the law of the province (_lex provinciae_). This law was
usually the work of the conquering general himself, assisted by ten
senatorial commissioners (_decem legati_) appointed by the Senate,
and it continued to bear the name of its chief creator, as we see in
the cases of the _lex Rupilia_ of Sicily,[1497] the _lex Aemilia_ of
Macedonia,[1498] and the _lex Pompeia_ of Bithynia.[1499] While it
re-established the states of a conquered district, it also gave them
certain ultimate rights. It defined the burden of the tribute, specified
the particular circuit-courts which the citizens of the various towns
were to attend, and framed regulations, which the governor was expected
to observe, about national and international jurisdiction. But these
regulations, slight and general as they were, are no sufficient test of
the amount of autonomy, in administration and jurisdiction, actually
enjoyed by the subject towns. Much of their independence was permissive
and based on the will of the governor. But the ruler, whether honest or
dishonest, was practically bound to grant it, for the Roman government
had provided him with no staff which could take over the minuter duties
of administration; if he was an enlightened man, he cherished the fiction
that the states were free;[1500] if unenlightened, he at least knew that
by permitting self-government he was saving himself trouble. In the case
of the eastern cities the neglect of the governor was almost as great an
evil as his exactions.[1501]

The theory of Roman taxation was in origin that it was a war indemnity.
This accounts for the fact that in the early days of Rome’s dealings
with conquered peoples a tax might be imposed even on nations which
were declared free,[1502] and for the name _stipendium_ (“payment for
the army”) which was borne by the direct taxation imposed by Roman
commissioners on provincials.[1503] This equitable theory, that the taxes
collected should merely defray the expenses of the military occupation
and administration of a province, seems to have been realised in practice
where the Roman government took the trouble to organise a system of its
own. The Macedonians were made to pay but half of what they had paid to
their kings,[1504] the Spanish provinces must have cost more than they
brought in, and in Cicero’s time it was only the Asiatic provinces,
where taxes were imposed on quite a different system, that yielded a
surplus.[1505] It was this system, which the Romans found existing in
Sicily, Sardinia, and Asia, and with their characteristic negligence
elected to preserve, which changed the whole theory of Roman taxation.
The principle was that of the payment by the cultivator (_arator_) of
a tithe (_decuma_) of the produce of his land. It was inevitable that
the Roman lawyer should associate this due with the _vectigal_ paid by
the occupants of _ager publicus_, and should evolve from the comparison
the strange theory that land in the provinces was not owned but merely
“possessed” by its holders.[1506] The chief practical consequences of the
tithe system were a surplus to the treasury, and the exactions of the
middlemen (_publicani_) through the indirect system of collection which
it involved.

The direct tax (_stipendium_) was collected by a tribute assessed either
on the land (_tributum soli_) or on the personalty of individuals
(_tributum capitis_).[1507] The Romans of the Republic seem never to
have attempted to form an accurate estimate of the resources furnished
by the land and personal wealth of a province; doubtless in Hellenised
districts they employed the systems which they found existing, such as
the schedules which formed the bases of the εἰσφοραί: in Spain amongst
other rough expedients they seem to have adopted a valuation tax on a
proportion of the produce of the soil;[1508] while elsewhere, as in
Macedonia,[1509] they fixed a total on the existing basis of collection.
The direct tax was usually collected by the communes themselves and paid
to the governor’s quaestor.

The tithe (_decuma_) was collected on the contract system, and the
difference in its mode of collection in the _vectigales provinciae_
depended on whether the site of the auction was in the province itself,
where local companies or even communities[1510] could compete for its
collection, or whether the tithes of the whole province must be put up
to auction in Rome, in which case the province was likely to become the
prey of a single Roman company. In Sicily the first system was adopted in
accordance with the principles laid down by Hiero, its last great king
(_lex Hieronica_);[1511] the second system was devised by C. Gracchus
for Asia and was doubtless extended to eastern provinces subsequently
organised such as Cilicia.[1512] The pretext for the change was no doubt
the incapacity of the Asiatic cities to collect their own dues,[1513] and
was welcome to the weakness of the states, which liked to have near them
a body of Roman capitalists from whom they could borrow in emergency; but
it created a pernicious connexion between capitalism and administration
which made the government of the Asiatic dependencies the gloomiest scene
of Roman rule. The tithe system in Asia, and perhaps in other provinces
where it prevailed, was abolished by Caesar in 48 B.C.[1514] The harbour
and frontier dues (_portoria_), the source of revenue next in value to
the direct tribute or the tithe, were collected by private companies
(_portitores_) perhaps throughout the whole imperial world, as they
had been from the earliest times in Italy.[1515] Other dues demanded
from the province were paid for by the Roman government. Such were the
corn supplied for the praetor and his retinue (_frumentum in cellam_ or
_frumentum aestimatum_),[1516] and the second _decuma_ sometimes required
by the state (_frumentum emptum_) and raised by command of the Senate
and people.[1517] In both these cases a reasonable price was fixed by the
Roman government.

We pass now to the governor and his staff. The early institution
of praetors and the later use of the pro-magistracy for provincial
government have already been described.[1518] But we have seen that even
Sulla did not formally dissociate the consulship and praetorship from
provincial rule.[1519] The consequences of this continued association
were curious. By a law of C. Gracchus, which aimed at destroying one
of the most valuable pieces of patronage which the Senate had at its
disposal, the consular provinces must be assigned before the election
of their holders.[1520] They are strictly consular, and are technically
entered on by their possessors on March 1 of their year of office,
although no definite agreement need be come to as to their partition
until the following December[1521]—the earliest date at which the consuls
of the later Republic could quit their urban duties. March 1 was the
beginning of the military and provincial year, as since 152 B.C. January
1 had been of the year of civil office at Rome. The reason why the 1st of
March of the year of office at Rome was chosen, and not the same date in
the following year, was that the pro-magistracy was not yet recognised as
a separate office, and that, if this second solution had been adopted,
the interval between December 29 and March 1 would have caused a break
in the _imperium_.[1522] The anomaly resulted that a provincial governor
held his command only for two months in his own right, and for ten months
while waiting for his successor. It was harmless in practice, inasmuch as
Sulla’s law had ordained that the governor should retain his _imperium_
until he returned to Rome, and need only quit his province thirty days
after the arrival of his successor,[1523] and was only accidentally
disastrous as leading to the quarrel between Caesar and the Senate, and
thence to the downfall of the Roman Republic. The pro-magistracy was
first raised into a separate office by a Pompeian law of 52 B.C., which
enacted that governors should seek their provinces five years after
holding office at Rome. It was a law that, by diminishing the nearness
of the prize, was intended to make the consulship and praetorship less
an object of illegitimate ambition at Rome. It might, therefore, have
conferred a slight indirect benefit on the provincials, but the speedy
collapse of the Republican government prevented its adequacy being
tested. The tenure of a provincial governorship was nominally annual,
but, even after Sulla had raised the number of praetors to eight, there
were but ten magistrates available for fifteen provinces, and we know of
three propraetors—Verres in Sicily, Q. Cicero in Asia, and Fonteius in
Narbonese Gaul—who severally held their provincial commands for three
years in succession.

The chief members of the governor’s staff were one subordinate
magistrate, the quaestor, and certain senatorial commissioners
(_legati_), one of whom was usually assigned to a praetorian, and three
to a consular province. The magisterial position of the quaestor did
not entitle him to an independent sphere of duties. It is true that he
was, in the main, a financial official, was entrusted by the Senate
with money or a credit for meeting the expenses of the administration
of his province,[1524] received the revenues from the _stipendium_, and
had at the end of the year to give an account of income and expenditure
in his own name and that of his superior;[1525] but even here the
real responsibility was incurred by the governor, whose commands were
irresistible, and in all other respects the quaestor is the merest
delegate, who exercises jurisdiction, or any kind of administrative
work, in obedience to a voice that was supposed to convey a paternal
authority.[1526] He might even, like the legates, be dismissed for
incompetence or maladministration before the term of his office had
expired.[1527] The _legati_ had originally been representatives of
the government in Rome, but, to avoid friction, the custom grew up of
allowing governors to suggest individuals for the post.[1528] Yet to
the end of the Republic their names were submitted to the Senate, and
they were supposed to be subordinate officials of the state. No special
departments were, however, assigned them; any power which they exercised
was delegated by the governor, whether it took the form of the command
of a legion or the presidency of a court. A still more independent
selection was made of the unofficial members of the staff. The “comrades”
(_comites_) of the governor were young men, whom he initiated in the
mysteries of official and diplomatic life, and whose services he employed
for any purpose for which they seemed competent.[1529] But, however many
instruments the governor might use, there was such a complete unity of
responsibility that, in dealing with the administration of a province, we
are treating of the powers of a single man.

These powers were exercised chiefly in three spheres—military,
administrative, and judicial. In a province that seethed with war the
summer months were spent in camp, the winter in more peaceful duties;
but in a settled district the governor could map out his circuits as he
pleased, and devote some time to the ungenial task of inspecting the
affairs of the municipalities under his control. Apart from the necessary
diplomatic intercourse with neighbouring potentates or protected chiefs,
the amount of administrative work which the governor undertook was as
much or as little as he pleased. Its quantity depended on his view as to
how far self-government was a symptom of health or of disease. That it
sometimes had the latter character is shown by the startling discovery
made by Cicero when he undertook an unexpected investigation into the
financial affairs of his subject states. He found that the native Greek
magistrates of Cilicia had been plundering their respective treasuries
for the last ten years.[1530] But the possibility of such a discovery
is itself a testimony to the best aspect of provincial rule in the
Republic—its noble but sometimes misguided belief in the capacity of
people to govern themselves.

There was, however, one systematic function to which most of the
governor’s energies were directed in time of peace, and that was
jurisdiction, both civil and criminal. General regulations concerning
jurisdiction were made in the charters of the provinces; but these could
not be the same for every country, since the judicial machinery of some
groups of states was far more perfect than that of others. Sicily, the
only province the details of whose _lex_ are known, was peculiarly
favoured, and its privileges may be taken as the best type of those
offered by Rome. It was ordained that, in a suit between two citizens
of the same state, the trial should be held in that state and according
to its laws,[1531] a regulation which certainly guaranteed the native
_judex_ and the native code, but which did not, perhaps, inhibit an
appeal to the governor or take away his right of interpreting the law.
The charter then provides for cases of inter-political jurisdiction.
If a Sicilian of one state sues a Sicilian of another, the governor is
to provide by lot the _judex_ or _judices_,[1532] who are perhaps in
this case to be Roman citizens.[1533] When litigation arises between
an individual and a community not his own, the Senate of some third
state should be the judge, when either litigant has challenged one
of three senatorial bodies proposed.[1534] In suits between Roman
citizens and Sicilians the _judex_ was to be of the nationality of the
defendant.[1535] In all other matters _judices_ chosen by the magistrate
(_selecti_) were to be appointed from the Roman citizens dwelling within
the assize.[1536]

In Sicily it is clear that the _peregrinus judex_ was a standing
institution. Elsewhere, even in the Hellenised East, his existence was
more dependent on the grace of the governor. Cicero, in his government of
Cilicia, following the precedent of Mucius Scaevola, the ideal governor
of Asia, allowed the greatest freedom to the native laws, courts, and
judges, and remarks on the quickened life which their use inspired in
the provincials.[1537] The attempt, indeed, to substitute her own for
the native law was abhorrent to the political sense of Rome, and her
most ambitious representatives never attempted to make their edicts
into codes. The importance of the edict was chiefly felt in matters of
private international law, administrative jurisdiction, and procedure.
It stated principles which should regulate the relations between members
of different states or between provincials and Romans, it issued rules
for the settlement of claims made by the _publicani_, and it supplemented
the law of the province by framing regulations for the conduct of private
suits. The edict of each province was a separate entity, and drew its
name from the country to which it directly applied,[1538] and it had
a continuous existence, although the unity and continuity of its life
depended too much on the discretion of the individual governor.[1539] The
edict might be composed at Rome,[1540] and its author might copy from
more than one original. The rulings of his predecessor would doubtless
be well known; there were the edicts of other provinces, the work of
famous administrators of the past;[1541] and, as a fruitful source of
general rules of procedure, there was the _edictum perpetuum_ of the
capital In Cicero’s own edict, of which he furnishes a brief description,
the principles regulating business and trading relations (especially
as existing between Roman companies and provincials) were clearly and
fully set forth. As much attention was devoted to the general rules of
inheritance and bankruptcy, such as had been evolved by the _imperium_ at
Rome, and which were doubtless meant not to supersede the customs of the
various communities, but to be a common law for the province as a whole.
But much remained that could not be formulated. A province had boundless
surprises in store, and Cicero found it wiser to leave the third part
of his edict “unwritten.” The principles of the urban praetor were to
be drawn upon as occasion required.[1542] The civil jurisdiction of the
governor, which was based on the edict, was either personal or delegated,
and in both cases required the visitation of circuits (_conventus_,
διοικήσεις),[1543] into which the province had been divided at the time
of its organisation. A programme of the assize was drawn up, the stay in
each circuit was accurately determined,[1544] and the governor held a
court (_forum egit_) in each of them in turn.[1545]

Delegated jurisdiction was performed usually by the quaestor and the
legates; in both cases it was due to the mandate of the governor,[1546]
who could assign them lictors, if he pleased,[1547] and could always
control their sentences.[1548]

The governor possessed an unfettered criminal jurisdiction over the
members of the stipendiary states; but it cannot be supposed that
he often exercised it. He might summon any case into his court, but
ordinary crimes he doubtless left to the judicial machinery of the states
themselves.[1549] On the other hand, it was held that an offence might
be of such import as to transcend even his competence; and although
there was no legal means of escaping his jurisdiction, it was considered
advisable that he should send cases of a grave political character—those,
for instance, connected with sedition or a popular rising—to be tried at
Rome.[1550] The only restraining influence on the governor’s jurisdiction
was the necessity, imposed by custom, of consulting a council of
advisers.[1551] This _consilium_, however, was purely Roman, being
composed of Roman citizens residing in the _conventus_ and of members of
the governor’s retinue,[1552] and although a council composed wholly of
the latter was usually avoided, there was no legal hindrance to such a
narrow selection.[1553]

Over Roman citizens in the provinces the governor possessed the same
autocratic power; for his jurisdiction here is on a level with that of
the camp, and he gives judgment in a sphere to which the _provocatio_
does not extend.[1554] Yet a strong customary law, which was seldom
disobeyed, directed that he should remit to Rome all cases in which
Roman citizens were to be tried on a capital charge, and that, if he
pronounced judgment himself, he should inflict on them no degrading
punishments.[1555]

Almost every item in the provincial organisation that we have sketched
shows where its inherent weakness lay. It resided in the uncontrolled
power of the governor. Yet it was a weakness more apparent in practice
than in theory. There were many controlling forces at work which the
organiser and the government hoped would be effective. There were the
charters of cities and of provinces, and in the province a constant, if
improvised, committee of the Senate, which the governor was supposed
to consult before he ventured on any important step.[1556] There was
an unparalleled amount of legislation intended for the protection of
provincials and expressed in enactments dealing with the ordering of the
provinces, the rights of magistrates, and with extortion (_de provinciis
ordinandis_, _de jure magistratuum_, _repetundarum_); and, lastly,
there was the criminal responsibility supposed to be enforced by the
courts which carried out these laws. Some of these checks—the charters
of the favoured cities, the senatorial commission—were real, but were
not far-reaching enough seriously to affect the form of provincial
rule. Those of the laws were almost nugatory, for though the government
that proposed them had a collective conscience, its individual members
who were bound by them had none, and the courts that were supposed to
enforce these laws became the prey of party strife and the weapon of
party fanatics. But a government that depends on protective legislation
and the enforcement of criminal responsibility must be in a perilous
state. The defect must be in the principle of rule, not merely in
its working. And in truth the Republican theory of provincial rule
represents a fundamental inconsistency of idea. The theory aimed at the
impossible combination of martial law with municipal independence. Had
the rights of all the states been provided with better safeguards, their
self-government might have been more real, and the autocracy of the
governor might have been proportionately checked. But this solution would
have been an offence to the idea of the unlimited _imperium_, a clinging
superstition which the Romans had inherited from the history of their own
state and her days of conquest. The Roman Empire had been developed from
a protectorate; it bears to the end of the Republican period the traces
of its origin, and, in its lack of organisation, conveys the suggestion
of being a merely provisional government. The merits of such system as
there was cannot be ignored. The unrestricted _imperium_ was necessary
in time of war and, under a benevolent despot, might be useful even in
days of peace, while the very absence of organisation betrays the noble
belief that the aggregate of states which formed a province was rather
a confederated suzerainty than an integral part of an empire. But its
defects are more glaring and are to be found in the absence of some
central authority at home, not interested in provincial misrule, which
might enforce responsibility on governors; in the existence of annual
commands, and the exaggeration of routine which rendered extraordinary
appointments, such as that of Pompeius, inevitable; and in the lack of
an organised civil service, which, with its mechanical routine and its
self-evolved rules, is perhaps the surest of all checks on autocracy.

CHAPTER IX

THE REVOLUTION AND THE TRANSITION TO THE PRINCIPATE

The party of reform which, during the last century of the Republic,
gave a new development to the elastic Roman constitution, by gradually
creating a stronger executive organ than had been known since the time
of the monarchy, had two distinguishing features. One was an opposition,
sometimes rational, sometimes blind, to the senatorial government; the
other the exposition of a positive programme for remedying evils which
all but the most callous or careless could see. The nature of their
attack varied with the assailable features presented by its object. At
first it was directed against the assumed indifference of the Senate to
internal reform and its failure to suggest hasty remedies for economic
grievances. This was the essential feature of the Gracchan movement;
but, although its example was perilous, the immediate effects of this
first revolution were transitory in the extreme. The Senate emerged from
the attack shaken but victorious. Italy was but of little account when
the world lay at the feet of the noble families who composed the great
council of state, and the Senate could be made to appear the only true
government for an empire. Unfortunately this theory was rudely shaken. A
miserable war in a protected state, into which the government was most
unwillingly dragged, was thought sufficient to show that the merits of
the senatorial administration of the empire were an illusion. The epoch
of the Jugurthine war is the turning-point of the history of this period.
A reforming party with an imperial policy must associate itself with
the military power. The change was rapidly effected. Tribunes, commons,
assemblies still represent the nominal sovereigns, but their weapons—too
powerful for the users—are the _imperator_, the army, and the camp.
Henceforth we find a perpetual association of militarism with democracy
which could have but one issue, a monarchy resting on the sword.

But to the reformers of the times the ultimate solution of the
constitutional problem was something far less present than the programme
of reform, which was being handed on from leader to leader with scarcely
an item altered since the time when the genius of C. Gracchus had given
it birth. It contained agrarian laws, measures for corn distribution and
for colonies beyond the sea, means for relieving social distress and the
plethora of the great capital, and at times it admitted—the most pressing
need of all—proposals for remedying the iniquitous relations that the
law permitted to exist between debtor and creditor. A new and unexpected
development was given to the activities of the party by the introduction
into their programme of proposals for enfranchising the Italians.
This was a measure that, like so many others in popular programmes,
was a creation of the demagogue and was profoundly distasteful to his
followers. Its acceptance by the Liberals (_populares_) was a pure
accident—one due to the desire of breaking a formidable weapon employed
by the Whig opposition, who, like Scipio Aemilianus, had adopted the
somewhat dangerous policy of playing off Italian rights against those
of the city proletariate. But, as belief usually follows acceptance,
there is some reason for regarding the franchise question as, at least
finally, a plank in the democratic programme. In the multiform efforts
of the discontented we can also discern the spasmodic attempt to create
a competent central military authority for Rome, as the only means of
securing corn, commerce, and the empire.

It was by no means a homogeneous party which developed this programme and
attempted to replace a government which they deemed incompetent. Even its
more thorough-going members cannot be described by a single name. Amongst
the _populares_ were many Liberals who had nothing to gain by revolution;
but amongst them were also to be found many who were democrats by
necessity as well as by conviction, the revolutionary element which
was often a thorn in the side of the reforming constitutionalists, the
class of _improbi_ which supplied Catiline’s so-called “conspiracy”
and made it a genuine democratic movement, and whose aspirations were
subsequently represented by Caelius Rufus and Dolabella. Nor must it be
supposed that there was any clear line of demarcation between _populares_
and senators. Nowhere was the Senate more bitterly attacked than from
within its own body. The leaders of the extreme party had attained the
magistracies that entitled them to a seat in the Curia, and elections, so
far as they were not gained by family influence or bribery, were fought
on party lines. Nor even amongst the constitutionalists was there a lack
of would-be reformers of a more moderate type. The elder Cato and the
Scipionic circle, while eager to maintain senatorial ascendency, had
been conscious of some of its defects; and, as the cry for innovation
gathered in strength, a party was formed which, by borrowing wholesale
from the radical programme, attempted to reconcile the privileges of
their order with concessions to Italy, purity in imperial administration,
and care for the poor of Rome. This attempt was shattered by the fate
of the younger Drusus, and henceforth there is no senatorial party of
reform. Even Cicero, with his wide sympathies and his acute sense of
the evils of the time, can suggest only a _concordia ordinum_, merely
a means of bolstering up the existing constitution by means of a union
of the propertied and therefore “loyal” classes (_boni_). The municipal
statesman did, indeed, wish to see an “Italian” rather than a “Roman”
government, but he had no scheme by which Italy could have secured
representation at Rome, and before the close of his life he had accepted
the inevitable solution of personal rule. There was to be a _moderator
rei publicae_, a _princeps civitatis_;[1557] but this monarchy is not to
destroy the constitution; his prince is to be a loyal coadjutor of the
Senate, not the exponent of a military despotism.

It is probable that with parties so evenly balanced as the _populares_
and _optimates_ no very decisive result would have been attained, had it
not been for the existence in the state of a perfectly homogeneous body
of men with few ideals but very decided wants. This was that upper middle
class of large and moderate capitalists which, through an accident in
nomenclature, had come to be known as _equites_.[1558] It was a class
that possessed the tradesman’s narrow honesty and complete indifference
to all politics not connected with business. Like all classes, they
were quite willing to plunder the provinces while state officials did
the same; but they desired strong government more than plunder. They
longed for an administration which should secure them adequate protection
in the conquered world over which they had spread the network of their
trade, and which should also ensure a freedom from revolution at home.
Hence their wavering and yet always decisive attitude. To secure their
first end they join the attacking party, to secure their second they
attach themselves to the government, and their adherence or disaffection
always turns the fortune of the day. It was the _equites_ who helped the
democrats to raise Marius to power, who forced their own creature to
abandon his revolutionary colleague Saturninus, who ruined the schemes
of the younger Drusus and set the Varian commission on the track of
his adherents; it was their hostility that proved equally fatal to the
schemes of Sulla and of Catiline, their commercial instincts which lifted
Pompeius into power and led them at the crisis of 60 B.C. to abandon
the Senate and give their whole support to Caesar. There is something
tragic in the ruthless massacre of _equites_ which ushers in the Augustan
monarchy; for no class had done more for its existence and to none did it
prove a greater boon.

To appreciate the issue of this struggle in which all parties were
engaged, we must recognise its twofold aspect as a struggle for social
and political renewal, and consider separately the fate of the detailed
programme of reform and the change in the constitution to which the
attacks on the Senate led. From the first point of view the efforts of
the democratic party ended in an unqualified success; for every item
of its programme was carried out, with the requisite modifications, by
Caesar and the Principate. The agrarian question reached as near an
approach to settlement as such eternal questions can attain, especially
when it became absorbed into the movement of transmarine colonisation
which was employed in the Principate for poorer citizens and for
veterans. The extension of the franchise was completed, so far as the
territory south of the Alps was concerned, by Caesar’s renewal of the
gift of citizenship to the Transpadanes and Augustus’ incorporation
of their territory as a part of Italy,[1559] while the Principate was
liberal with the conferment of Latin rights on provinces, such as Sicily,
the Maritime Alps, and Spain, and the full citizenship gradually won its
way in the provincial world by individual grants and recruiting for the
legions. The laws of debt were emended by the just bankruptcy laws of
Caesar and Augustus, and even the _leges frumentariae_ required but a
slight modification to make them a genuine scheme of poor-relief.[1560]
The _equites_, too, the class to whom C. Gracchus had given an official
recognition, became a still more recognised order under the Principate
and a most useful wheel in the administrative machinery.

It is more difficult to decide whether the radical change of government
to which the agitation led can be considered a genuine triumph for the
reformers. Military monarchy may be regretted by those who see in it a
confession of incapacity to combine imperial government with Republican
institutions; but, from the point of view of the reforming party, it was
only a disappointment if we conceive that their leaders thought that
government by _comitia_ might replace the rule of the Senate. But there
is hardly a trace of this idea. No effort was made throughout the whole
of this period to make the _comitia_ a workable or really democratic
institution; and personal rule, as the only expression of democracy, had
asserted itself at the beginning of the movement. The only open question
was whether it should be a Periclean _tyrannis_ of the type enjoyed by C.
Gracchus or a Napoleonic rule such as that of Caesar. As a matter of fact
the Principate learnt a lesson from both solutions—that of the Gracchan
and that of the Marian epoch—and established itself on a joint basis of
the _tribunicia potestas_ and the _proconsulare imperium_.

If we look round for other possible solutions, we find two faintly
foreshadowed, but both doomed to failure. The first was a reformed
Senate, not merely the existing body artificially bolstered up, as it had
been by Sulla, but a body really made representative of Italy through
the free inclusion of _novi homines_. The idea was held by Cicero, but
no scheme was ever considered which would have made it a reality. For
such an object to be attained, election to those magistracies from
which the Senate was recruited must cease to be in the hands of the
Roman _comitia_; but no one to our knowledge, with the exception of
the Emperor Augustus, thought of the possibility of election by the
municipal towns.[1561] Help might also have been looked for from a
reformed assembly, one that had been made representative of the whole
Italian people. The allies nearly worked out this means of salvation for
themselves,[1562] but the magnitude of Rome was itself a stumbling-block
to the solution of the problem on federal lines. We can hardly blame the
thinkers of the day for not seeing the possibility of a representative
assembly of a national kind; for the Italian, like the Greek mind, though
familiar enough with the idea of the representation of cities, had not
advanced to the conception of the representation of individuals through
electoral districts.

The reason why the creation of an Italian senate or an Italian
assembly might have warded off the monarchy is that such a body might
have commanded respect even from the army of the provinces. This
correspondence in sentiment might, it is true, have required that the
army should remain mainly Italian; and Augustus’ attempt to give Italy
something of a representative character may have been abandoned through
fear of a conflict between an army which was becoming provincial in
personnel and an Italian proletariate, when the choice of a Princeps had
to be decided. Yet, although circumstances were hostile to a fusion of
Italy and the provinces, and the Principate was not to be Italian, one
should not forget that it had something of a popular character. The Roman
citizens of the legions who made the Princeps[1563] were of a better type
than the _plebs urbana_ of Rome; for not only was the freedman element
eliminated, but discipline had with them replaced demoralisation, their
life was lived under healthier influences, and although they were often
moved to their selection by a mere _esprit de corps_, they generally
succeeded in placing a very capable man on the throne.

Caesar was the first sole ruler of Rome; and we might be inclined to
imagine that the powers which he enjoyed were consciously assumed merely
as those of a provisional government, were there not signs that towards
the close of his life he was satisfied with the solution which he had
adopted. The early dictatorships of 49 and 48 B.C., the second and longer
of which was only for the term of a year,[1564] were merely efforts
for tiding over a crisis; and the same may perhaps be said of a later
tenure of this office, which was conferred on him for ten years in 46
B.C.[1565] But in the last year of his life (44 B.C.) he entered on a
perpetual dictatorship,[1566] a revival of the Roman monarchy both in
reality and in name. It is true that the title _rex_ was not assumed,
out of deference to the feelings of the masses who saw in it merely a
synonym of oriental despotism; and for the same reason the diadem was
declined.[1567] But every educated Roman knew that the Roman monarchy
had been nothing else than the unlimited _imperium_, and many may have
believed that dictator or “master of the people” was the most significant
of the titles of the king. It was, therefore, a _regnum_ under which
Rome was living,[1568] and there was no concealment of its military
character, for the title _imperator_ was now borne by the regent within
the walls.[1569] This designation was a mere symbol of military command
and the fullest jurisdiction; it was no description of a basis actual or
future on which Caesar’s power could rest, for the unqualified _imperium_
had no existence to the Roman mind, and, if it was to be unlimited, it
must be either regal or dictatorial.

With respect to the other powers which Caesar assumed, the _praefectura
morum_, given for three years in 45 B.C.,[1570] has the appearance of a
special conferment for a given purpose; but the _tribunicia potestas_
was granted early in his period of rule (48 B.C.) and given for life; it
must have been regarded even now as the ideal complement of a lasting
_imperium_, valuable for the inviolability it conferred and for the
“civil” and popular colouring which it gave its holder. To realise the
nature of Caesar’s authority by an inspection of the bases of his power
needed some reflection; but none was wanted to mark the external symbols
of royalty—the triumphal robe, the portrait-head on coins, the statue
placed amongst those of the seven kings in the Capitol. These were the
symbols that were taken as tests of what the future monarchy was to
be, and which reduced, not merely rigid constitutionalists, but even
moderates and men of compromise, to despair. With Caesar conciliation was
not accompanied by its requisite complement, compromise; he was tender
of everything but sentiment, and did not care to estimate the force
of what he must have considered mere prejudice; but, in spite of the
modifications introduced into his theory of government by Augustus, it
was he who pointed out that the necessary basis for the future Principate
was the tribunician power combined with some kind of military _imperium_.

The murder of Caesar had, in words of the time, abolished the _rex_
but not the _regnum_,[1571] and the Triumvirate of 43 B.C. was but
a suspension of hostilities between the rival claimants. In form it
was a provisional government, like that of the early Decemvirate,
for the reform of the constitution, and received the sanction of the
people;[1572] but so purely was it an agreement between the contending
personalities that its renewal was contrived in 38 B.C. without any
reference to the _comitia_.[1573] For ten years (38-28 B.C.) Octavian’s
position was far more irregular than that of Caesar had ever been, and,
even after the defeat and death of Antonius, his sole claim to power was
an _imperium_, which had never been conferred, irregularly continued from
a usurped Triumvirate. These indefinite powers resting, as he himself
describes them, “on universal consent,”[1574] were essential to the
accomplishment of the work that had to be done before the forms of the
constitution were restored. The consulships which he held did not give
the requisite authority, and the value of the _tribunicia potestas_,
which he had possessed from 36 B.C.,[1575] was negative rather than
positive. In the course of his sixth consulship (28 B.C.) he considered
the time to be ripe for a final settlement. It assumed the form of a
surrender. He issued a solemn decree in which he cancelled the irregular
ordinances of the Triumvirate,[1576] and he fixed January 1, 27 B.C.
as the date on which he would divest himself of his extraordinary
power.[1577] On this day “he gave back the commonwealth to the
discretionary power of Senate and people.”[1578] A return was expected,
and had doubtless been arranged, but the gift made by the grateful
Senate seemed small in comparison with what had been surrendered. It was
enough, however, to make the abdicating monarch a very powerful head of
the executive of the state. Augustus, as he was now for the first time
designated,[1579] was given _imperium_ for ten years with the government
of certain specified provinces,[1580] while at the same time he was made
commander-in-chief for life of all the forces of the state, with the sole
right of raising levies and of making war and of declaring peace.[1581]
Yearly consulships were still the chief basis of his dignity, if not
of his authority, in the capital, while the tribunician power still
continued but was as yet sparingly employed.

Such was the settlement that was greeted, officially and unofficially, as
a restoration of the Republic,[1582] but which later writers held, with
equal reason, to be the commencement of the legitimate monarchy.[1583]
The weak point in the arrangement was the authority of the prince within
the capital. The consulship had admirable Republican associations, but
was hemmed in by awkward limitations. Its jurisdiction had become almost
extinct, its initiative was fettered by colleagueship, it was technically
not the highest power in the state, and the constant usurpation by the
Princeps of one of the two offices of highest titular rank was a bar to
the legitimate ambition of aspiring nobles. Hence the need for the new
settlement which was attained in 23 B.C. The details of the change, which
gave the Principate its final form, will be described elsewhere. Its
essential features were that the constant investiture with the consulship
was dispensed with, that the _tribunicia potestas_ was shifted from the
background to become the chief symbol of authority for the Princeps in
Rome and Italy, and that an _imperium_, which must now be described as
_proconsulare_, was renewed and perhaps increased.[1584] Further isolated
grants were made to fill up the gaps in this heterogeneous association of
powers, and to elevate the new extraordinary magistrate of the Republic
to the requisite height above the ordinary officials of the state.

CHAPTER X

THE PRINCIPATE

§ 1. _The Powers of the Princeps_

We have seen that the powers on which Augustus based his position as
Princeps were the _proconsulare imperium_ and the _tribunicia potestas_.
In the theory of a constitution which he presented to the world the first
of these prerogatives was supposed to establish his power outside Rome
and Italy, the second, with its purely civic traditions, to be the basis
of his influence within the central state. His object in exalting the
tribunician power to the first place in Rome and her Italian dependencies
now merged in the city, was to conceal as carefully as possible the
military basis of his rule. The unlimited _imperium_ was to be felt only
by his army and his provincial subjects.

It needed little reflection to show that this principle, although
in appearance the most important that underlay the Principate, was
practically unworkable. Government in Rome was inconceivable without an
_imperium_, and supreme government impossible without one of such an
indefinite character that it should seem to stand out of relation to the
regular and limited _imperia_ of consuls and praetors. This power was
secured by an easy juristic device. By a special exemption, which had its
prototypes in Republican history, the Emperor was allowed to _retain_
the full _imperium_ within the walls;[1585] and lawyers were careful not
to declare explicitly what was implied in this retention. It might have
meant—as it would have meant during the Republic—that the Emperor was not
debarred by his presence in Rome from holding command abroad. It might
signify that the limitations imposed by the city walls now rendered the
proconsular a quasi-consular _imperium_, and this was perhaps the ruling
theory. But a different line of interpretation would have rendered it
easy to show that the _imperium_ here as elsewhere was unlimited. The
nebulous atmosphere of this mockery of a magistracy was as well suited
to the despot as to the constitutional ruler. In the actual position
of the Princeps within Rome we find traces of all these theories. As
a provincial ruler he governs from the capital; as commander-in-chief
he keeps his praetorian guards in Italy and his fleets at Ravenna and
Misenum; while as the wielder of an undefined but civic _imperium_ he
gives justice, as a court of first instance or a court of appeal, and
issues edicts to supplement the laws.

But the recognition of an _imperium_ within Rome was not alone
sufficient. Even when this was joined to the tribunician power, great
gaps were left in the position which should be held by a true head of
the state. To fill these up, and thus supply a solid foundation for
autocracy, fresh grants of isolated powers were necessary; and these
grants, though in theory occasional, soon became permanent in practice.
The Emperor, like the tribune, possessed no distinctive official dress
while he resided in Rome: hence the consular _insignia_ had to be
conferred;[1586] he possessed in virtue of his tribunician power only
the right of making the third proposal at the Senate: hence the grant of
the _jus primae relationis_.[1587] Such grants admitted of indefinite
extension, and the stage which they had reached by the date of the
accession of Vespasian is partially known to us from the only official
document which throws light on the powers of the early Principate. In
the existing fragment of this charter, which appears to be a decree
of the Senate meant to be submitted to the people for their formal
assent,[1588] we find the Emperor credited with the heterogeneous powers
of making treaties, extending the _pomerium_, commending candidates for
magistracies, and issuing edicts as interpretations of law human and
divine. The measure further exempts him from the operation of certain
enactments and gives him certain privileges, not possessed by the other
magistrates, in his relations with the Senate. These powers cannot be
brought under any single legal designation; but, as most of them are
more or less directly connected with some kind of _imperium_, the view
that they were tacked on to the bill conferring the tribunician power,
which received the formal ratification of the Plebs, is improbable. On
the other hand, they cannot be said to have belonged originally to a
law conferring the _imperium_; for the imperial biographies frequently
speak of the gift of the _proconsulare imperium_ (by the Senate) and
of the _tribunicia potestas_ (by Senate and People) without any hint
of a general law conferring _the_ “imperium.”[1589] Yet the gift of
the _imperium_ is sometimes mentioned,[1590] and if the passages of
jurists of the second and third centuries, which speak of _imperium_
being conferred through a _lex_,[1591] are genuine, we must conclude
that the centre of gravity in the powers of the Princeps had shifted
with the course of years. Originally the casual collection of powers,
which appears in the law sanctioning Vespasian’s rule, must have been a
mere supplement to the two leading prerogatives—the proconsular and the
tribunician powers. But it is quite possible that in the course of time
the vast development and the great importance of these added privileges
may have caused the enactment containing them, now known as the _lex de
imperio_, to overshadow the other sources of the imperial authority.

There was one source, however, most distinctively expressive of the
character of the Principate, which found no expression in legal
enactments. The military oath (_sacramentum_), which during the closing
years of the Republic was tending to become a bond of personal allegiance
between a legion and its chief, was naturally taken in the Principate
by the whole army to its sole commander.[1592] But on the very first
transference of the throne a new departure was made. At the accession
of Tiberius the oath of fealty was taken voluntarily by the civil
orders;[1593] it was administered by provincial governors and was renewed
twice a year, on the first of January and on the anniversary of the
Emperor’s accession.[1594] The fact that a soldier’s oath bound the whole
Roman world was the fittest expression of the military character of the
new despotism.

A classification of the Emperor’s powers in detail, with an attempt to
deduce each of them from a prerogative conferred on him at his accession,
is rendered difficult by the facts that no Roman lawyer cared or dared
to evolve a complete theory of the Imperial constitution, and that here,
as in so many other departments of Roman history, we are dealing with an
office which, as it grew, gradually absorbed into itself fresh spheres
of influence. The Principate, in fact, finally absorbed the state, and
the only adequate formula for its authority which later jurists could
find was that the people had committed its sovereign power to its
delegate. But yet, when we examine the spheres of the Emperor’s activity,
it becomes clear that, while some are connected with an _imperium_,
others are attached more closely to the tribunician power, while others
again are associated with the relics of Republican offices held by the
Princeps, or flow from certain extraordinary rights conferred on him by
statute.

(i.) The first rights connected with the _imperium_ that strike our
attention are those exercised in the military sphere—rights which,
on a vast scale, reflect and extend the powers possessed by the
_imperator_ of the Republic. The Princeps has the right to raise
levies,[1595] to nominate officers, and to confer military distinctions.
In declaring war he has replaced the comitia of the centuries; and the
statutory recognition of his right to conclude a treaty[1596] settled
a vexed question of Republican procedure.[1597] This recognition
of the federative power was not earlier than the reign of the first
Claudius,[1598] but had already become a permanent element in the
imperial authority by the accession of Vespasian. The right to extend the
_pomerium_ of the city, which dates also from the reign of Claudius, is
also found amongst the list of imperial prerogatives in 69 A.D.[1599]

The Republican general had often followed up a successful campaign by
assigning lands and planting colonies. These acts had been done at
the mandate of the people; but the new commander-in-chief needed no
such permit. The Princeps divides territories that belong to the Roman
people and establishes colonial settlements at his will. The gift
of the franchise had also been entrusted at times to the Republican
commander,[1600] and now it is placed wholly in the hands of the Emperor.
He grants these gifts both to communities and to individuals. He gives
Latin rights to _peregrinae civitates_,[1601] and citizenship to Latin
towns, while he may alter the nominal _status_ of a community by changing
a _municipium_ into a colony, or a colony into a _municipium_.[1602]
His right of conferring citizenship on individuals was equally
unquestioned,[1603] and he might remedy the defect of birth by giving
_ingenuitas_ to a freedman.[1604]

With the _imperium_ too is obviously connected the administration of
those provinces which were peculiarly entrusted to the care of the
Princeps. The government of these provinces, as well as the maintenance
of the army, necessitated a financial administration, separate from that
of the state and peculiar to himself, and this was accompanied by a right
of coinage. His criminal and civil jurisdiction over citizens as well as
soldiers are also connected with some undefined idea of the _imperium_,
while his power of legal interpretation, although specially conferred,
does not differ essentially from that of the praetor, and is to be traced
to the same source. The detailed consideration of these powers must be
deferred until we treat of that separation of authority between Caesar
and the Senate which gave its formal character to the Principate.

(ii.) The _tribunicia potestas_, which had been granted to Augustus
in 36, reconferred in 30, and made the chief outward support of his
authority in 23 B.C.,[1605] continued to serve the Emperors as the
ostensible means by which all other magistracies were subject to their
control,[1606] and possessed an artificial prominence from its employment
as a means of dating the years of their reign. Positively it conferred
the _sacrosanctitas_, which had encompassed the Republican tribune,[1607]
the right of approaching the assembly of the Plebs, which was of value as
long as the Emperors deigned to legislate through popular channels, and
perhaps the only strictly constitutional power which they possessed of
transacting business with the Senate.[1608] But its negative were now,
as ever, of more value than its positive powers. The _intercessio_ made
its possessor the moderator of the state,[1609] and the severest means
of tribunician coercion could be employed against every recalcitrant
official; while this veto, when used in the Senate, became either
a means of suspending the jurisdiction of that body or a method of
pardoning the criminal whom it had condemned.[1610] The right of help
(_auxilium_)[1611] based on the appeal (_appellatio_) becomes also, as
we shall see, one of the means of establishing the first true appellate
jurisdiction which the Roman world had seen.

(iii.) With respect to other Republican offices in which the Princeps
was directly interested, we have only to consider the consulship and
the censorship, for they were the only two whose titles or powers were
sufficient to warrant their assumption by the head of the state.

The consulship was no integral part of the imperial power after Augustus
had ceased to employ it in this way;[1612] but it was frequently assumed
as an occasional office by the Princeps, who held it for a short time,
generally at the beginning of his rule.

The censorship had disappeared as a Republican office, and we might have
expected that its vast powers combined with its Republican traditions
would have made it a valuable supplement to the authority of the Prince.
But there were reasons against its assumption. In its pure form it was an
occasional office, and its permanent tenure might have shocked Republican
sentiment; while the fact that the assessment of the Roman people for
the _comitia_ and the army soon ceased to be necessary made its absence
scarcely felt. On the analogy of the _tribunicia potestas_, the powers of
the office without the office itself were, in the form of a _cura legum
et morum_, offered to Augustus, but declined by him.[1613] There was no
constitutional difficulty about exercising some of the functions of the
censorship through the _imperium_, whether consular or quasi-consular,
and this was done by Augustus when he revised the list of the Senate in
29 and 18 B.C.[1614] Two of the succeeding Principes, however, Claudius
and Vespasian, thought fit to assume the office in its old temporary
form, and Domitian carried out the design of making it an integral part
of the Principate by assuming the position of censor for life (_censor
perpetuus_).[1615] His precedent was not followed because it was
unnecessary. The revision of the list of the Senate and _equites_—the
only meaning that the _cura morum_ now had—was established by consent
as an admitted right of the Princeps,[1616] and even the power of
creating Patricians came to be recognised as one inherent in his office.
This power had been conferred on Caesar and Augustus by law; Claudius
and Vespasian exercised it as censors;[1617] but, apparently without
further enactment, this power of ennobling, extinct since the beginning
of the Republic[1618] and no part of the Republican census, became an
admitted imperial prerogative. It was only when the destined Princeps was
himself a Plebeian that this honour, which was considered a necessary
qualification for his office, was conferred on him by the Senate.[1619]

(iv.) The chief of the extraordinary rights conferred on the Princeps by
special enactment were those which had relation to the Senate, the right
of recommendation to office (_commendatio_) and a dispensation from the
operation of certain laws.

The special privileges which distinguished the Emperor from other
magistrates in transacting business with the Senate were three in
number. First, he has not merely the power to put a motion (_referre_)
when present in the house, but he can send a written recommendation
(_relationem facere_) when the Senate meets under the presidency of
another magistrate.[1620] In such a meeting the Emperor as a rule
only claims priority for one item in a single sitting (_jus primae
relationis_); hence we sometimes find, as a special privilege, the right
of priority given him for three, four, or five.[1621] The power which he
possesses of dividing the house upon his motion without debate (_senatus
consultum per discessionem facere_) is not a new one, but one that
might be exercised by the consul of the later Republic. Secondly, the
Emperor has the power to withdraw a _relatio_ of his own which is already
before the house (_relationem remittere_); and thirdly, the privilege of
ordering the Senate to meet under the presidency of another magistrate.

The second special right has reference to the elections of magistrates,
and introduces us to the question how far the Princeps could control
them. Two functions are attributed to him by our authorities, that of
nomination and that of commendation; but the effects of the two are very
different. The _nominatio_ is merely the negative power possessed by
the Republican magistrate of receiving names and excluding unqualified
aspirants from candidature. With respect to most offices—the praetorship,
for instance—it was exercised by the Princeps conjointly with the
consuls, and the number of candidates whom he nominated was, at least in
the early Principate, limited.[1622] The practical effect of the Prince’s
nomination on the election might be great, but its legal influence was
_nil_.[1623] _Commendatio_, on the other hand, a privilege developed
from the Republican practice by which candidates were recommended by
distinguished persons for election, is a right legally conferred, and one
which absolutely secures the choice by the electing body of the person
so commended.[1624] The extent to which it might be employed differed
with the various magistracies; thus in Tiberius’ reign, out of at least
twelve candidates for the praetorship only four were commended by the
Emperor.[1625] Magistrates, who had gained their position by this act of
imperial favour, were designated _candidati Caesaris_.[1626] The highest
office of all, the consulship, seems, at least in the early Principate,
never to have been awarded on a formal imperial recommendation; for the
description of the method by which Tiberius filled up this post at his
pleasure shows that the Emperor effected his object by a clever use of
the nomination.[1627] This may have been a limitation of practice, not
of theory, for the words of the law as we have it exempt no office from
this imperial control, and it is certain that from the time of Vespasian
onwards the consulship too was subject to the _commendatio_.[1628]

The Princeps, according to the enactment which confers powers on
Vespasian, was dispensed from certain laws (_legibus solutus_).[1629]
There is no implication here of an exemption from the operation of the
ordinary civil and criminal law. The Princeps is not above the laws, nor
are the courts of the community his courts; and, if he was exempt from
prosecution during his year of office, this was the normal privilege of
the Republican magistrate. What is meant is the dispensation from certain
principles of the constitution or enactments, which the Principate as
a magistracy necessarily violated or which were found inconvenient to
the Princeps. Such were the _leges annales_, or the rule forbidding the
holding of the _imperium_ within the walls. In choosing an heir the
Emperor was also exempted from following the precise formalities of
adrogation;[1630] he could manumit without the _vindicta_[1631] and was
not subject to the disabilities of the Julian and Papian law.[1632]

(v.) The separation of religious from political duties, which had been
a characteristic of the Republic, was continued theoretically under
the Principate. The Emperor was in no sense a high priest, and ritual
was still a function of the sacerdotal colleges. But he was a member
of the great religious guilds which dealt with augury and with the
_jus divinum_,[1633] and the law gives him the power to carry out the
orders of such societies if he thinks it to be in the interest of the
state.[1634] We have not, however, merely the phenomenon of the civil
assisting the religious arm, for the Prince, as _pontifex maximus_,
represents both in his own person. The chief pontificate was specially
conferred on him with the other imperial powers; he may originally have
been invested, like the pontifex of the Republic, by the assembly of
the seventeen tribes,[1635] but later the creation seems to have been
wholly the work of the Senate, although a formal announcement of the
result (_renuntiatio_) was still made before the assembly.[1636] When the
Principate came to admit the principle of colleagueship, only one of the
Augusti was made chief pontiff,[1637] and the association of the highest
religious and civil power continued until the stole was rejected by the
piety of Gratian.[1638]

It is obvious that the attempt to keep the rôles of pontiff and Princeps
apart, even if made, could never have been successful. Where crime was
also sin the pontiff could now utter authoritative law and exercise
coercion; the lay and the religious character are strangely mixed in the
methods adopted by Domitian for the punishment of incest,[1639] and when
the _jussio principis_ speaks on a question of burial law,[1640] it must
have been difficult to tell whether it was the Prince or the pontiff who
was giving his decision.

Apart from its influence on law, the chief pontificate was valuable for
its powers of patronage. Few distinctions were more earnestly sought by
young nobles than admission to the religious colleges, and the door to
them lay chiefly through the Princeps. His influence might be exercised
by his right of nomination or by his commendation to the electing
body.[1641]

§ 2. _Titles, Insignia, and Honours of the Princeps_

In dealing with the titles of the Princeps, it is as well to begin with
those which were not in the list of official titles, for, impressed on
the ruler, as they were, by current usage, they were often the most
significant. The word _Princeps_, although it described no office or
peculiar authority, was yet a semi-official designation; even as employed
in the later Republic it had signified a political pre-eminence over
other citizens,[1642] and now it denoted not so much the “chief citizen”
as the “head” or “chief man” in the state, the director of the Republic,
to whom all looked for guidance, who was responsible for its failures
and credited with its successes, even when these were the result of the
actions of other magistrates.[1643] It was above all a title which tended
to emphasise the continuance of the life of the Republican government
under the new _régime_, and suggested a mental contrast, at once to the
Emperor’s position as the commander of his legions, expressed in the
title _imperator_, and to that absolute headship which, as exercised in
family life at Rome, was known as _dominium_.[1644] The name, indeed,
of _dominus_ inspired such a horror in the mind of Augustus that he
disliked this mode of address (a familiar one from the members of a
family to its head) to be employed even by his sons and grandsons,[1645]
and Tiberius insisted that he was _dominus_ only to his slaves.[1646] But
the language of courtly life, perhaps at times of real affection, forced
the title into use, and the younger Pliny employs it constantly in his
correspondence with Trajan. It is not, however, until the time of Severus
that it appears on the public addresses of corporations, and Aurelian is
the first emperor who is _dominus_ on his coins.[1647] It is probable
that these niceties of western nomenclature were always lost on the
oriental mind. To it the Principate is a monarchy, and Caesar, when he is
not a god, is either αὐτοκράτωρ or βασιλεύς.

If we turn now to the titular designation of the Princeps, we find that
this consists partly of titles of office, partly of those of honour.
The word _imperator_ occupies a doubtful place between the two; for
while denoting no office, it signifies the possession of an active and
untrammelled _imperium_. It occupies a twofold place in the list of
titles. Augustus employed it as a _praenomen_, perhaps in accordance
with the view that he had inherited the title from his uncle, who had
borne it (apparently as a _cognomen_[1648]) during the later years of his
life, and as a _praenomen_ it was used by most succeeding emperors.[1649]
But it appears a second time in the titular designation of the Princeps
with its old Republican significance—that of an appellation borne by a
commander who had been acclaimed after a victory.[1650] As so employed
it was qualified by numerals to mark the number of the salutations;
amongst these was reckoned that which had acclaimed him Emperor, and,
consequently, after the first victory won under his auspices, he appears
as _imperator II_.

A more distinctive title of office is that of _proconsul_. Although
it merely expresses the fact of a _proconsulate imperium_, it was a
designation that was avoided by the early Principes, probably out of
deference to the senatorial administration of the public provinces, which
was exercised through proconsuls, and it was first employed by Trajan.
Its employment hints at the practical disappearance of the dual control
abroad, and suggests the all-embracing nature of the Emperor’s _imperium_.

Amongst the honorary appellations of the Emperor, _Caesar_ and _Augustus_
take the foremost place. The latter, although appended to the Emperor’s
name like a _cognomen_, was never looked on as a family designation. It
was the highest of all personal titles of honour, since it expressed the
sanctified majesty of the Prince alone,[1651] and was not borne even by
that subordinate partner on the throne (_consors imperii_), the holder
of the _proconsulate imperium_ or _tribunicia potestas_, through whose
assistance the earlier emperors sometimes lightened the burden of their
administration. It was not until the collegiate principle was fully
recognised in 161 A.D. that the _duo Augusti_ appear.

_Caesar_, on the other hand, was in origin purely a family designation,
since it was the hereditary _cognomen_ of that branch of the Julian
house which had ascended the throne, and all the emperors to Caligula
could claim a legitimate right to it whether by descent or adoption.
Even Claudius and Nero, connected as they were with the extinct family
of Caesars, might use it with some show of family right. It is only with
Galba and his successors that _Caesar_ becomes strictly an appellative;
it is an assertion of a fictitious dynastic claim such as that which led
the princes of the house of Emesa to adopt the revered name of Antoninus,
and may be indirectly connected with a claim to succeed to the crown
property.[1652] The name, even when thus artificially employed, continued
to be a _cognomen_; it was shared by the ruling Princeps with his sons
and grandsons.

With Hadrian’s reign we find the beginning of a limitation of its use.
The Caesar is now the presumptive successor to the throne;[1653] the
elective monarchy has been recognised as one that is, if not hereditary,
at least capable of transmission through nomination, and the choice of
the bearer of the name is made by the reigning Emperor, although it
may be suggested by the Senate.[1654] After the beginning of the third
century the name appears as _nobilissimus Caesar_, Geta being the first
prince to bear this title. The recognition of the dual monarchy rendered
it inevitable that two Caesars might be simultaneously designated for the
throne.

Other honorary _cognomina_, such as _Germanicus_, _Pius_, _Felix_, were,
even when transmitted, purely personal, although their adoption was now
reserved for the Emperor, and such designations were no longer borne by
the other nobles in the state. The designation _pater patriae_ has more
distinct reference to the political position of the Princeps. A title
once conferred by popular acclamation on Cicero, it is now equally in
the gift of the people as represented by the Senate. As its conferment
was not necessary to the powers of the Principate, the grant of this
designation, however much it might be the result of flattery, was always
regarded as the reward of merit.[1655]

The order of the imperial titles admits of variations, but, as finally
fixed, was usually _pontifex maximus_, _tribunicia potestate_ (II. III.
etc.), _imperator_ (II. III. etc.), _consul_ (II. III. etc.), _censor_
(when this office was assumed, as it was by Claudius, Vespasian, Titus
and Domitian), _proconsul_ (a title adopted by Trajan and occupying the
last place after the reign of Hadrian).[1656]

The usual _insignia_ of the Princeps are those of a Republican
magistrate. Within the walls he wears the scarlet-striped gown (_toga
praetexta_); outside them he may don the scarlet _paludamentum_. But the
laurel crown, which he might wear anywhere and at any time,[1657] and
the laurel-wreathed _fasces_[1658] are peculiar to him. At festivals and
games the embroidered robe of triumph (_vestis triumphalis_) might also
be assumed. Like other magistrates he has lictors[1659] and _viatores_,
but he also boasts a special bodyguard as well, other than the praetorian
cohorts. This guard was composed of mounted foreign mercenaries, usually
of German horsemen.

But other peculiar honours seemed to lift the Princeps to more than
magisterial rank. Regular vows (_vota_) were offered for him, as for the
state,[1660] by the consuls and the colleges of priests; his birthday and
the days of his victories were celebrated as public festivals;[1661] his
statue and image are sacred and may not be profaned even by juxtaposition
with unclean things;[1662] his _genius_ is the most binding power by
which a man can swear; for while perjury in the name of the gods is
punished only by heaven, to swear falsely by the Emperor’s name is
treason on earth.[1663] Coins, whether struck by the Senate or the
Emperor, show only his head or that of members of the imperial house.

The _domus Caesaris_ was, in fact, raised far above the position of
the other noble houses in the state. It was especially the agnatic
descendants of the founder of the dynasty that were thus honoured, and
the Roman idea of the unity of the household even led to the inclusion
of the name of Caesar’s relatives in the soldier’s oath of fealty.[1664]
Their effigies, too, appear on coins—a right originally restricted
to such members of the family as actually shared in the government,
but which was in later times granted as a compliment to ladies of the
imperial house.[1665] Caesar’s relatives might also be distinguished by
commands which could be interpreted as a promise of the succession. We
shall speak elsewhere of this meaning which might be read into the gift
of the proconsular or tribunician power, and almost equally significant
was the appointment of some young member of the family to the honorary
command of the corps of _equites_ (_princeps juventutis_).[1666] There
was, indeed, one title which seemed to signify a dignity absolutely equal
to that of the Princeps himself. This was the name _Augusta_, which
was borne by certain ladies of the ruling family. It was originally
reserved for a single member, such as the mother, the grandmother, or
the wife of the reigning Emperor, and may have originally implied some
share in the throne. The Principate was not a regular magistracy, and
there was no valid constitutional ground for excluding women from the
throne, although the actual influence of queen-mothers, such as Livia,
Agrippina, or Mamaea, however powerful it may have been, was wholly
informal.[1667] The name _Augusta_ came, however, to be employed merely
as an honorary designation, to be borne by such a woman as Marciana, the
unaspiring sister of Trajan.[1668] A stranger title was developed by the
ambition of ladies of the second and third century. Faustina, wife of
Marcus Aurelius, and Julia Domna, wife of Septimius Severus, were both
designated “mothers of the camp” (_mater castrorum_). One important and
disastrous result of this elevation of the imperial house was that its
members were protected, like its head, against all the attacks of _laesa
majestas_. As even the most indirect reflection on the Princeps was
treason, because he represented the state, a similar view was taken of
constructive wrongs to members of the imperial family, because they were
one with the Princeps. This view was too purely Roman to need time to
develop. Even in the reign of the second Princeps we find that a poet has
to expiate by death the folly of an obituary poem on the Emperor’s living
son.[1669]

As the Princeps was not a king he had no court, and “Augustus or Trajan
would have blushed at employing the meanest of the Romans in those menial
offices which, in the household and bedchamber of a limited monarch,
are so eagerly solicited by the proudest nobles of Britain.”[1670]
Yet, although the _entourage_ of the early Principes was simplicity
itself, the stately life of the Republican noble had already furnished
precedents for distinguishing the grades and privileges of those who
sought the Emperor’s presence. The younger Gracchus and Livius Drusus
had, at the daily _salutatio_, drawn distinctions amongst their numerous
adherents; at the morning audience some were received singly, others in
larger or in smaller groups;[1671] and it is not surprising that this
distinction should have been revived for the great throng of callers who
filled the hall of the imperial palace. The _amici_ of the Princeps were
those “received at court,” and were divided into friends of the first
and second “audience.”[1672] From this body were selected the judicial
and administrative advisers of the Emperor (_consilium_) as well as
the comrades (_comites_) whom he took with him when he quitted Italy
on business of state. From the latter, who consisted of senators or
knights, he selected a group for a special journey,[1673] and employed
them as delegates in matters administrative, judicial, and military.

§ 3. _Creation, Transmission, and Abrogation of the Principate_

The Principate was, in the theory of the constitution, an elective
office, and one based on the principle of occasional delegation.
It was necessary for the life of the state that there should be a
magistracy,[1674] but it was not necessary that there should be a
Princeps. Hence there was no institution such as the Republican
_interregnum_ to fill up the gap left by the vacancy of the throne,[1675]
and the fact that such gaps did occur in the history of the Principate
shows that the possibility of government by magistrates, senate, and
people was no mere fiction. The abstract idea of a Principate was indeed
perfectly realised at the death of the very first Princeps, in so far
as responsible men in the Roman world had a perfectly definite idea of
the precise powers that must be vested in an individual in order to save
that world from anarchy. Yet Tiberius can pretend to hesitate, not merely
about assuming the office, but about the nature of the office which he
assumes;[1676] and, although on the accession of his successor, Gaius
Caesar, the _soliti honores_ were conferred _en bloc_, yet the idea that
the creation of a Princeps was an act of special investiture always clung
to the office. It was obvious so far as the choice of the person was
concerned, but it even affected the powers conferred, and we have seen
that the grants made to Emperors of the second and third centuries were
in all probability different, both in form and in matter, from those made
to Emperors of the first.[1677]

The electing body was the Roman people, chiefly represented by the Senate
but still retaining in its own hands the formal ratification of most of
the powers conferred. But the powerlessness of this sovereign is of the
very essence of the history of the Principate. As a rule, all that it
can do is to recognise an _imperium_ already established by the army,
whether this establishment be due to the tacit consent of praetorians or
legionaries or to the active use of their swords. The crucial point in
the creation of an emperor is his salutation by his army as _imperator_.
Such a salutation did not mean that the general who accepted it was
Princeps; it meant only that he was a candidate for the Principate.
The act itself was one of revolution; its legality depended upon its
success. Did the legions in other provinces accept the candidature, the
Senate immediately fulfilled its formal task; did rival aspirants meet
in battle, it was always ready to welcome the survivor. To be truly
a Princeps was to receive the customary honours and offices from the
Senate, and Vitellius was acting in the true spirit of the constitution
when he adopted as the formal date of his accession (_dies imperii_) the
day on which his claims had been ratified by the fathers.[1678] Vespasian
was acting contrary to that spirit when he regarded as the beginning of
his the moment at which he had been saluted _imperator_ by the legions of
Egypt.[1679]

Yet although the history of the Empire furnishes an unparalleled series
of successful revolutions, it must not be supposed that the importance
of the Senate’s formally transmitting the succession was ever questioned
or obscured. The Senate’s authority was rendered stable by the many
peaceful instances of dynastic succession; it was rendered creditable
by such a stand as that made against the tyrant Maximin; it was kept
alive by the fact that when, in the days of the “thirty tyrants,” the
Empire was breaking up, Italy was still the only formal centre of a world
power; it was bound up with the magic name of Rome, and even in the third
century was welcomed with relief by an army sick of its own lawless
violence.[1680]

But whether we lay more stress on the _de facto_ or the _de jure_ element
in the act of election, we must admit that the elective principle was
not the sole determinant in the transmission of the Principate. It was
crossed by two others, both of which were typically Roman. These were the
principles of nomination and of hereditary succession.

Nomination took the form of designation by some significant act. One
of the most significant modes in which the Princeps could point to his
choice of a successor was to invest an individual with an approximation
to those powers which were of the essence of the Principate, and thus
to make him in a sense a colleague in the Empire (_collega_, _consors
imperii_). The powers chosen were the _proconsulare imperium_, the
_tribunicia potestas_, or both. It was thus that Augustus at different
times designated Agrippa and Tiberius for the throne,[1681] that Tiberius
pointed to Germanicus and Drusus as his destined successors, that
Nerva nominated Trajan, Trajan Pius, and Pius Marcus Aurelius.[1682]
Although such a position is described as one of colleagueship in the
imperial power, yet it did not confer, as regards the _imperium_, the
most characteristic rights of the Principate. The colleague did not
possess joint command over the praetorian guard or the fleet, nor joint
administration over all the Caesarian provinces,[1683] unless these
rights were conferred by special mandate, as they were on Tiberius
during the closing years of Augustus’ life;[1684] nor had the colleague,
although in possession of an independent _imperium_, any right to
triumph, except by the will of the Princeps,[1685] for his victory had
been due to legions which had taken the _sacramentum_ to another. The
name _imperator_ was not borne by this assistant to the throne unless it
was specially conferred, as it was by Vespasian on Titus and by Hadrian
on Antoninus Pius.[1686] It is uncertain whether the possessor of the
_tribunicia potestas_ and of the _proconsulare imperium_ in its lower
form had to have these powers reconferred on his accession to the throne.
In the case of the _imperium_, since it fell short of that required for
the imperial position, reconferment is probable. But yet the possession
of such a power seemed to create a continuity in the Principate, and the
state seemed never to have lost its head.

A second mode of nomination was effected by the Princeps designating
his intended successor as his heir. It was not merely that this was
an effective way of showing one’s will, but it actually pointed to a
transmission of the crown property (_patrimonium_) which accompanied the
Principate. Gaius attempted to employ this mode of designation in favour
of his sister Drusilla,[1687] and Tiberius showed either that he had
left the succession open, or that he contemplated a joint Augustate, by
making his great-nephew Gaius and his grandson Tiberius Gemellus joint
heirs.[1688]

Adoption was as effective a means of emphasising one’s intentions. Such
an adoption by the Princeps might be by testament, but it need not follow
the legal forms, and required only a public announcement through a
_contio_ whether in the Forum, the Senate, or the camp.[1689] It was thus
that Galba named Piso as his successor, but adoption usually accompanied
the gift of quasi-imperial power, as in the cases of Tiberius, Trajan,
Antoninus Pius, and Marcus Aurelius.[1690]

We have already noticed the method by which the Princeps, sometimes with
the help of the Senate, could announce his wishes as to the succession
by the gift of the name of Caesar.[1691] This was a constitutional
recognition of a principle of designation which had hitherto been
informal.

Three of the modes of nomination which we have mentioned—those by
heirship, adoption, and the gift of the name of Caesar—obviously approach
very closely to the principle of hereditary succession. Adoption
especially created to the Roman mind a tie only less strong than that of
natural birth; and, whichever of the three methods was employed, it would
have been considered almost inconceivable that a man should pass over
his own son or agnatic descendant in favour of a stranger. Just as in
the Republic son had succeeded father in office, so in the Principate it
was easy to gain recognition for a dynasty; and, as a rule, it was only
when the last of a line had, for misgovernment or other reasons, been
violently overthrown, that the principle of selection found free play.
The magic of the name of Caesar could call even Claudius to the throne;
Vespasian, the _novus homo_, found it easy to transmit his power; the
dynasty founded by Severus ran through four generations in spite of the
murder of Caracalla and the scandal of Elagabalus’ rule; the death of the
two elder Gordians made the accession of the third inevitable; and Carus,
the last of the rough soldier emperors, could be succeeded by the gentle
Numerian and the extravagant Carinus.

The lack of any definite principle of succession combined with the
warring forces within the Empire to make the position of a ruling Emperor
one of dazzling uncertainty. The possibility of election by the legions
created a rude standard of merit, and it is questionable whether any
really incapable man ever sat on the Roman throne. But usurpation was
often followed by dethronement, tyranny by death or posthumous disgrace;
and although such expulsions, executions, and censures were practically
the work of the army, it is of some importance for the constitutional
theory of the Principate to determine the legal form which dethronement
or condemnation assumed.

As it was the Senate, representing the people, which gave, so it was
this power which took away the Principate; and the act of deposition
is attested in the cases of Nero, Didius Julianus, and Maximin.[1692]
Deposition was followed by death, and then came the condemnation of the
reign, one that might follow even when the death of the tyrant had not
been directly ordered by the government.[1693] In its extremest form this
was a condemnation of the memory (_damnatio memoriae_) of the late ruler
on the ground that he was a traitor (_perduellis_).[1694] His _acta_ were
rescinded, his name erased from the records. A milder form of censure was
the mere neglect of his _acta_ in the form that no oath to observe them
was sworn by magistrates and senators.[1695] In the latter case there was
no wholesale rescission of the acts, and each special case in which the
late Emperor had decided was approved on its individual merits.

On the other hand the acceptance of a reign took the twofold form of
an oath to observe the _acta_ of the dead Emperor[1696] and a vote to
assign him a place amongst the deified Caesars. The prospect of this
posthumous recognition of the merits of a reign must often have exercised
a stimulating influence on the occupant of the throne,[1697] although it
was somewhat spoilt by the consciousness that the decision of the Senate
would, to a large extent, be guided by the wishes of his successor in
office.

§ 4. _The other Powers in the State—the Magistracy, the Comitia, and the
Senate_

(1) _The Magistracy_

As the Republican constitution continued in form unimpaired, so its most
essential feature, the magistracy, although subjected to modification,
was still an integral element in the administration of Rome and Italy
during the Principate. Few radical differences were introduced into the
magisterial qualifications or career; the innovations affected only the
age for office, the starting point in the _cursus honorum_, and one
of the steps in the _certus ordo magistratuum_. The minimum age for
the quaestorship was now twenty-five years,[1698] for the praetorship
thirty,[1699] and two new qualifications were necessary before the
quaestorship could be held. One was membership of the vigintivirate, the
aggregate of lower magistracies to which the _sex-et-vigintiviratus_
of the Republic had now shrunk.[1700] The other, perhaps originally
a practical rather than a legal qualification, was the tenure of the
military tribunate,[1701] the latter being held generally after one
of the magistracies in the vigintivirate had been administered. This
change, though apparently formal, meant a fundamental alteration in the
spirit of the new nobility. The possibilities of culture, to be acquired
in the schools of Athens and Rhodes, were now almost extinct. From the
age of eighteen the aspirant to the highest honours in the State might
be serving with Caesar’s legions on the frontier. It was through the
Emperor’s grace that he attained a military position which was at least
a practically necessary qualification for the magistracy; at the age of
twenty-five the young soldier entered on the race for higher honours;
as an ex-praetor, even at times as an ex-quaestor, he might be made
the general of a brigade (_legatus legionis_), and from thence proceed
to the government of a military, or the administration of a civil,
province. Nothing shows more clearly the true military character of the
new monarchy than the fact that even its civil and Republican posts
were administered by soldiers; nothing explains more adequately the
subservience of the Senate than the fact that it was composed mainly of
ex-officers, trained in the habits of rigid obedience and in unwavering
respect to the _sacramentum_—of men to whom Caesar was not Princeps but
Imperator.

With respect to the steps in office which followed the quaestorship,
a further change was due to the unwillingness of candidates to burden
themselves with the aedileship, now that its powers of bribery were of no
avail, and with the now undistinguished tribunate of the Plebs. The rule
was laid down that between the quaestorship and praetorship a Patrician
must hold the curule aedileship, a Plebeian one of the two aedileships
or the tribunate.[1702] An exemption from this lengthy course could,
however, be given by an exercise of the imperial right of _adlectio_.
This was the conferment of an artificial magisterial rank. In form it was
a power exercised in the revision of the list of the Senate and elevated
from a lower to a higher grade within that order. But the _adlectio_ also
had the effect of qualifying for the magistracy immediately above the
rank thus artificially assigned. One who was _adlectus inter quaestorios_
was qualified for the tribunate, one _adlectus inter tribunicios_ for the
praetorship, and one _adlectus inter praetorios_ for the consulship. The
consulship was amongst civic magistracies still the crown of a political
career; hence the rarity of adlection _inter consulares_.[1703]

A smaller honour was the conferment by the Senate, generally on
the proposal of the Princeps, of the _ornamenta_ of a magistracy
(_quaestoria_, _praetoria_, _consularia_) on one who had not held the
magistracy itself. This honour gave no right of entry into the Senate,
and none of holding the magistracy next in rank to that whose ornaments
were conferred,[1704] but merely the privilege of wearing the _insignia_
of an office at festivals and on other public occasions;[1705] it may,
however, have given the right of voting with the class of senators
whose _ornamenta_ were conferred, if the person honoured was already
provided with a seat at the Senate.[1706] This distinction was by no
means reserved for persons legally qualified for the magistracy; it
might be granted to knights high up in the imperial service, such as the
praefects of the guard[1707] and of the watch,[1708] or to provincial
procurators.[1709] Claudius granted it to imperial freedmen,[1710] and we
find that even senators excluded from the curia were sometimes left the
_ornamenta_ of their rank.[1711]

The permission to use the ornaments of a triumph (_ornamenta
triumphalia_) was the result of the limitation of the right to the
actual triumph. The application of the principle that this right was
inconsistent with a subordinate _imperium_,[1712] had, when applied to
the Principate, the effect of legally confining triumphs to the Princeps
alone; for the governors of his own provinces were merely his delegates,
while those of senatorial provinces, though nominally in independent
authority, had as a rule no armies at their command.[1713] The triumphal
_insignia_ might, however, be granted by the Senate on the proposal of
the Princeps.[1714]

The election to the magistracies will be more fitly treated in connexion
with the _comitia_ and the Senate. The obligations to which their holders
bound themselves on their appointment were those of the Republic, with
the exception that the _jus jurandum in leges_ was amplified by the
inclusion of the valid _acta_ of the Princeps—those, that is, of a living
or a previous emperor whose binding character had been recognised by
oath.[1715]

If we turn now to the individual offices, we find that the CONSULS
are still the officially recognised heads of the Republic and of the
Senate. On the suspension of the Principate they are the representatives
of the state,[1716] and we find them acting in accordance with this
character. It was the consuls who, on the deposition of Nero, sent
despatches to Galba with the news of his selection,[1717] and it was by
the surrender of his dagger to a consul that the abdication of Vitellius
was effected.[1718] The dignity of the office is shown by the fact that
it was the only one in which a citizen might have the Princeps as a
colleague, and still more by the view of a gracious emperor that, when
he was performing the functions of that office, the vast dignity of
the Principate was for a moment lost in that of the consulship.[1719]
As presidents of the Senate the consuls were partners in its nominal
sovereignty. They guided its jurisdiction, both in civil and in criminal
matters, and in the former may have acted as its commissioners. They also
possessed in their own right high judicial functions—in matters of trust
(_fidei commissa_), for instance—which were originally delegated to them
by the Princeps, and of which we shall treat elsewhere.

But the very fact that the consulship was such a prize, as well
as the fact that its occupation led to the filling of other high
offices—the government of certain senatorial and imperial provinces
and the praefecture of the city—induced a shortening of its tenure and
a consequent multiplication of the individuals who might enjoy its
privileges and become qualified for other duties. The expensiveness of
the office may also have contributed to this end; for the increase in
the number of occupants would lessen the pecuniary burden imposed by the
celebration of games.[1720] Even the half-yearly consulships of the early
Principate become in course of time very infrequent, and we subsequently
find a tenure of but four or two months.[1721] Those appointed for 1st
January were _ordinarii_, the others _suffecti_,[1722] and the whole year
was dated by the names of the former.

The number of the PRAETORS varied under Augustus and his successors
from ten to eighteen. Twelve, fourteen, fifteen, and sixteen are found
at various times, and the final limit of eighteen was still maintaining
itself in the time of Hadrian.[1723] The reason for this expansion
of their numbers was their utility for the enlarged jurisdiction of
the period. The Republican functions of the _praetor urbanus_ and
the _praetor peregrinus_ continued, until those of the latter became
extinct, perhaps soon after the conferment of citizenship on the whole
Roman world by Caracalla (212 A.D.);[1724] while other praetors, were
guides of the _quaestiones perpetuae_, until the disappearance of these
commissions towards the close of the second century.[1725] But new
spheres of extraordinary jurisdiction claimed the attention of others.
Thus Claudius instituted two praetors for adjudication on trusts (_fidei
commissarii_),[1726] Nerva one for the decision of cases arising between
the _fiscus_ and private individuals (_fiscalis_),[1727] and Marcus
Aurelius another for the granting, and perhaps for the control, of
guardians (_tutelaris_).[1728] For a short time the administration of the
_aerarium_ was also in the hands of praetors.[1729]

Most of the specific functions, which the AEDILES had exercised
during the Republic, now passed to other hands or were shorn of their
importance. The history of the later Republic had shown how incompetent
these officials were to exercise an adequate control of the market,
and the _cura annonae_ passed to the Princeps and to the praefecture
established by him. Their police functions were to a large extent
absorbed by the praefecture of the city, but they still destroyed books
condemned by the Senate,[1730] and attempted to carry out the sumptuary
laws.[1731] The _cura urbis_ still entailed on them the duty of keeping
clean the streets of Rome[1732] and a supervision over places of public
resort.[1733] Much of their criminal jurisdiction must have lapsed with
the disappearance of trials before the _comitia_, but they still retain
a power of inflicting fines and seizing pledges—one which was limited
and regulated during the reign of Nero[1734]—and the special civil
jurisdiction of the curule aediles still continues.[1735]

The QUAESTORS still maintained their functions as financial officials and
general assistants to the magistrates. Their number had been raised by
Caesar to forty, but was again reduced to twenty by Augustus.[1736] For
a time two quaestors had the guardianship of the _aerarium_,[1737] and
others were in the public provinces the financial and judicial assistants
of the proconsuls.[1738] Four more were assigned to the consuls, two to
each, as their agents and assistants;[1739] while the Princeps himself
employed two, commended by himself (_quaestores Augusti_, _quaestores
candidati principis_), chiefly for the purpose of reading his despatches
to the Senate.[1740] During the reign of Claudius a step was taken which
“put up the quaestorship for sale,”[1741] and associated it with a
function that clung to it longer than any other. This was the exhibition
of gladiatorial games at the cost of the exhibitor,[1742] a pecuniary
burden which henceforth fell on every aspirant for higher office, until
Severus Alexander ordained that only the _quaestores candidati_ should
themselves defray the expenses of these spectacles, the cost of the games
given by the others being defrayed from the _fiscus_.[1743]

The TRIBUNES OF THE PLEBS were not colleagues of the Princeps, for the
_tribunica potestas_ was not the tribunate, and the actions in virtue
of it were not even theoretically subject to the tribunes’ veto. But
their great negative powers were still occasionally exercised in some
departments of state during the first century of the Principate. Like
the office itself, however, they were but a shadow of those of the
Republic.[1744] The _intercessio_ against decrees of the Senate might
be attempted when unimportant matters, such as the right to scourge
actors, were under discussion,[1745] or might be employed as a warning
to the Senate that the Princeps should be consulted on the business
in hand.[1746] In higher matters of state its exercise might mean
danger or death to the tribune who mistook the fictitious for the real
Republic, or who, recognising the tyranny, chose to brave the anger of
the Emperor.[1747] The right of _auxilium_ was still exercised against a
praetor in 56 A.D.,[1748] and appealed to by an Emperor in 69.[1749] But
this, too, soon disappeared to leave no trace. In the early Principate
the tribunes seem to have possessed some right of summoning civil cases
from the Italian towns to Rome,[1750] probably through an exercise of
the veto; and, although their criminal jurisdiction had disappeared with
the _comitia_, they retained some power of inflicting fines (_multae_),
which was limited during the reign of Nero.[1751] There is also evidence
that they still possessed the right of veto in civil jurisdiction.[1752]
Amongst positive powers their presidency of the Senate still survives, as
we shall see in dealing with that body.

The office of tribune, since it conferred little distinction, was by
no means an object of ambition; and the difficulty of getting the ten
places filled led to the inclusion of this magistracy, as one of the
necessary steps, in the _cursus honorum_,[1753] and sometimes to more
drastic measures such as the selection of ex-quaestors by lot under
Augustus,[1754] or the reception of members of the equestrian order under
Claudius.[1755] Yet, with all its disadvantages, the tribunate survived
the Principate, and tribunes are named in imperial despatches of the
fourth century.[1756]

(2) _The Comitia_

An element in the restoration of the Republic by Augustus, after the
provisional government of the Triumvirate was over, was a renewal of the
life of the popular assemblies.[1757] But it was impossible that their
purely local character could be reconciled with the imperial interests of
the day, or that their popular character should be consistent with the
rule of the Princeps and his nobility. For a moment they remained to a
certain extent a reality, and throughout the Principate they exercised
the shadow of power which was sufficient to express the still surviving
theory of popular sovereignty.

From the first a considerable portion of the powers of the _comitia_ had
been transferred wholly to the Princeps; for to him belonged the rights
of declaring war, of making peace, and of forming alliances;[1758] while
the criminal jurisdiction which the people exercised at the end of the
Republic was no longer necessary, for while the more definite portion of
it was handed over to the _quaestiones_,[1759] the more indefinite now
fell under the extraordinary cognisance of the Senate. Legislative power
tended to centre more and more in the Princeps and Senate, and it is
only during the first century that enactments are mentioned which have
the true forms of _leges_ and _plebiscita_.[1760] The right of election
was the most permanent of the popular prerogatives. Under Augustus the
people still chose its magistrates, although the choice was considerably
influenced by the Princeps;[1761] and after Tiberius in the first year of
his reign had caused all the real elements of election—the profession,
the nomination, the vote—to be transferred to the Senate,[1762] the
formal _renuntiatio_ of the successful candidates (an integral part of
the election)[1763] still continued to be made to the people down to
the third century.[1764] It is only in respect to the consulship that
there is a doubt whether, during the first century A.D., more than the
mere announcement of the result was not effected in the _comitia_. The
evidence is conflicting, but the indications of a formal popular control
of these appointments are on the whole outweighed by those which refer to
the Senate the real elements of election—rendered nugatory at times by
the way in which the Princeps exercised his powers of nomination.[1765]
There can be little question, however, that in the later Principate the
consular, like all other, elections were vested in the Senate. The
survival of the _comitia_ into the third century, whether for the purpose
of the _renuntiatio_ or for that of ratifying the powers of the Princeps,
was no mere mass-meeting informally assembled. The stately forms of the
Republic were preserved, and when the centuries were assembled the red
flag still flew from the Janiculum.[1766]

(3) _The Senate_

It was through the Senate of the Principate that the idea of popular
sovereignty was most practically and even most formally expressed;
and, as the Principate claimed and even tried to be nothing more than
the extraordinary magistracy of a Republic, the most infinite pains
was taken with this body to give it dignity, stability, and weight. We
shall speak elsewhere of the senatorial “order” which was created during
the Principate; it was from this order that the Senate was recruited,
and the will of the Princeps could be very distinctly asserted in the
selection of members of the great council. Entrance was, as in the
Republic, chiefly through the magistracy, the tenure of the quaestorship
qualifying for a seat at the board. When, therefore, the Senate
became itself the electing body, the principle of entrance was one of
cooptation; and as the Princeps did not, to any great extent, influence
the selection of quaestors by his _commendatio_,[1767] the principle
was something more than a mere theory. But we shall see that he often
gave the _latus clavus_ which admitted to the senatorial order; we have
seen that he advanced to the military tribunate, which became one of the
qualifications for the quaestorship;[1768] he might also have exercised
an influence in the formal nomination of candidates for this office;
while his right of _adlectio_,[1769] when exercised with reference to
persons who had not been magistrates, gave him the power of actually
creating senators.

The qualifications for the Senate had reference to age, wealth, and
birth. As twenty-five was the minimum age for the quaestorship, a man
might be a senator at twenty-six.[1770] The _census_ required, though it
varied from time to time during the reign of Augustus, was finally fixed
at a million sesterces.[1771] _Ingenuitas_ was required—Claudius even
demanded free birth through three generations[1772]—and it was counted
one of the abuses of tyrannical rule when the favour of Emperors admitted
freedmen into the Senate.[1773] For a time the council maintained its
mainly Roman character, but “new men” from Italy and the provinces
crept in with the censorships of Claudius and Vespasian,[1774] and the
former Emperor even granted admission to the Gallic Aedui, perhaps by an
employment of his right of _adlectio_.[1775] The reception of provincials
finally became so frequent that, to give them an Italian interest, it
was decreed by Trajan that one-third of their property must be invested
in land in Italy,[1776] a quota that was changed by Marcus Aurelius to
one-fourth.[1777]

Removal from the Senate belonged to the Emperor either as censor, when he
exercised the discretionary moral judgment which had been associated with
the Republican _lectio_,[1778] or in virtue of that power of revision
which, as we have seen, became associated with the Principate.[1779] The
chief grounds of exclusion were lack of the requisite census, refusal
to take the oath _in acta Caesaris_ which was demanded of senators as
of magistrates,[1780] or condemnation for crime. The Senate itself, in
the exercise of its judicial power, could add to the sentence which it
inflicted on a senator the penalty of expulsion from the house;[1781]
it might even make this expulsion a punishment for calumnious
accusation.[1782] The revised list of the Senate (_album senatorium_)
was posted up publicly every year,[1783] and the Emperor appeared at
the head of this list as _princeps senatus_.[1784] The number of the
Senate was fixed by Augustus at 600,[1785] and, as there seems to have
been little or no alteration in the number of the quaestors, the size of
the body into which they passed may have been fairly constant. Augustus
also instituted fixed days for meeting. These regular meetings (_senatus
legitimi_) took place twice a month, on the Kalends and the Ides, except
during the autumn months of September and October, and attendance on
these days was compulsory.[1786] Even to these meetings, however, there
was a summons through an edict.[1787] Extraordinary sittings (_senatus
indicti_) could also be held whenever the magistrate deemed them
necessary.[1788] The presidency and summons belonged chiefly to the
consuls, but, as in the Republic, were possessed also by the praetors and
tribunes.[1789] When the Senate had been summoned, the Princeps shared in
the presidency as a magistrate, and it is very questionable whether he
ever appeared at the board in the character of a simple senator.[1790] As
a magistrate he might address the house at any moment, and, during the
early Principate at least, custom dictated that there should be a pause
at the opening and at the close of a debate which the Princeps might fill
up with an expression of opinion if he pleased.[1791] We have already
noticed the singular privileges which he possessed in the matter of
bringing business before the house.[1792]

Amongst the powers of the Senate, that which was formally the greatest
was the creation and deposition of the Princeps. We have already seen how
this right was limited in practice;[1793] but its nominal exercise was an
expression of the view that the sovereignty of the Roman people now found
its chief exponent in the ancient council. The same idea is expressed in
the senatorial power of dispensation from laws—whether in favour of the
Princeps and members of his house,[1794] or in administrative matters
such as the right of forming associations.[1795] The elective power which
the Senate enjoyed from the beginning of the reign of Tiberius[1796] is
also a sign of its perpetuating the powers of the people.

Over foreign administration, once the great bulwark of its power, the
Senate has now but little control. Although it still receives messages
of the victories of the Princeps, and grants him a triumph,[1797] it has
lost all independent rights of war, peace, and alliance. But it receives
envoys from the provinces which are under its control,[1798] and from
the towns of Italy,[1799] and, at least in the first century of the
Principate, it may act as the advising body of the Princeps in spheres
which pertain wholly to him. Tiberius consulted the Senate on military
questions;[1800] Vespasian waived an embarrassing offer of help from the
Parthians by urging them to send an embassy to the Senate; and Decebalus,
after his conquest by Trajan, obtained his final terms of peace by the
same means.[1801] Such concessions were doubtless acts of grace on the
part of the Princeps, but they also represent a constitutional principle
which finally disappeared—the principle of consulting the representatives
of the people on questions that were of paramount interest to the state.

The other powers of the Senate, which express its sovereignty or its
partnership of administration with the Princeps, we must reserve for the
next section, in which we shall attempt to illustrate the theory of a
dual control which pervades the constitution of the Principate.

§ 5. _The Chief Departments of the State; the Dual Control of Senate and
Princeps_

We have already seen that, in the most essential fact of sovereignty—the
creation of the Principate—the Senate and people, or rather the Senate as
representing the people, was theoretically supreme.[1802] The attribute
of sovereignty that comes nearest to this is the power of legislation,
for it is one that the “determinate human superior” generally retains
in his own hands. The other functions that are usually associated with
the highest authority in a community, such as the control of general
administration, jurisdiction, finance, cultus and coinage, may more
easily be delegated. If the delegation is temporary, there is no division
of sovereign power; if perpetual, there is such a division unless the
legislative power be thought of as capable of recalling the mandate.
We have already seen to what a large extent the people had delegated
its powers to the Princeps, and we have also seen that this delegation
was, in fact though not in theory, perpetual.[1803] But, in the spheres
of authority which we are now about to examine, there is neither the
theory of complete retention, nor that of complete delegation, of
sovereign power. The sovereign has partly retained and has partly
delegated in perpetuity every one of the functions of government which
we have enumerated, and this singular dualism affects, not only the
administrative, but even the legislative activity of the state.

(i.) _Legislation._—With respect to legislation it has already been
shown how the _comitia_ still uttered their general mandates until a
period at least as late as the reign of Nerva.[1804] But, even before
the legislative power of the people became extinct, this power had been
passing to the Senate; and in the strict theory of the constitution, true
legislative authority is to be finally found only in the great council
which represents the people.

The origin of this senatorial legislation is doubtless to be sought in
the advice on legal points which the Republican Senate had often tendered
to the magistrate, and in the interpretation of customary law or of
enactments which often accompanied this advice.[1805] It has, indeed,
been noted that the _senatus consulta_ of the Principate, which prescribe
general commands such as in the Republic would have been the subject of
_leges_, are often expressed in this advisory form;[1806] decrees of the
Senate never attained the formal structure of a law;[1807] they also
lack its imperative mode of utterance, and for these two reasons they
were never described as _leges_. The highest degree of validity which
the jurist could give them was “the binding force of laws”;[1808] but
this force was sufficient to make them sources of the _jus civile_,[1809]
and down to the third century such general commands as tended to alter
the fundamental legal relations of Roman citizens to one another, were
generally expressed in the form of _senatus consulta_.

The Princeps, on the other hand, is not credited directly with any
power of legislation; but the faculty for making _jus_, which was
inherent in the _imperium_ of every Roman magistrate, and especially
apparent in that of the praetor, was manifested by the Princeps in an
unexampled degree. His methods of utterance are through the edict, the
decree, and the rescript. The _edictum_ is, like that of the praetor,
technically an interpretation of law; but the creative power associated
with interpretation is here pushed to its extremest limits, and statute
law supplemented this faculty inherent in the _imperium_ by explicitly
declaring that whatever ordinances the Princeps might lay down should
(with certain limitations fixed by precedents) be considered valid.[1810]
Whether the edict of one Princeps bound his successor must have depended
to some extent on the degree of formality in the utterance. Tiberius
professes respect even for the _obiter dicta_ of Augustus;[1811] but
this reverence was exaggerated, and none but the formal edicts expressed
in written form could, as a rule, have been included in the _acta_. It is
by no means certain that even these were always included in the _acta_ to
which the oath was taken;[1812] but if an edict had been recognised as
valid by several succeeding Principes and was then abandoned, some formal
method of repudiation seems to have been necessary.[1813]

The _decretum_ was, in its strict sense, the sentence of the Princeps
when sitting as a high court of justice;[1814] as a _res judicata_ it
necessarily possessed absolutely binding force for the case in which
it was issued, and prevented any renewal of this process; but, unless
formally rescinded in a succeeding reign, its validity as a precedent
seems not to have been questioned, and the words _Caesar dixit_ appeal to
the jurists almost with the force of law.[1815]

The third mode of utterance is by means of the letter (_epistola_) or
rescript (_rescriptum_).[1816] These letters contained instructions
either on administrative or on judicial matters. In their first character
they might be addressed either to individual officials subordinate to the
Emperor or to the provincial diet,[1817] the scope of their application
depending on the Emperor’s discretion at the time of the issue, and
on the interpretation of the rescript after his death. In matters of
justice, whether addressed to the judge or to the litigant, they might
settle doubtful points of law or extend a principle to new cases. The
power of interpretation is at least as great in the rescript as in the
edict; but the rescript was the more powerful vehicle for law-making.
It kept the Princeps in constant touch with the provincial world, and
was the chief mode in which the uniformity of its administration and its
law was moulded. The rescripts also had, on account of the precision and
permanence of their form, a more unquestioned validity, as perpetual
enactments, than either the edict or the decree. When the _acta_ of an
emperor are referred to, it is chiefly these, together with the charters
or privileges (_leges datae_, _beneficia_) that he may have conferred on
states, that are intended. The rescripts might be elicited either by the
_consultatio_ of a doubtful official who was subordinated, either as an
administrator or as a judge, to the Emperor, or they might be written in
answer to the petition (_libellus_, _supplicatio_) of one of the parties
to a suit. In the latter case they were often a convenient substitute for
the personal appearance of the appellant in the Emperor’s court.

The edicts, decrees, and rescripts came eventually to be described as
“imperial constitutions” (_constitutiones principum_), and although,
as we have seen, different degrees of permanence might attach to each
of these methods of utterance, to a jurist of the second century they
all had the force of law.[1818] From this category of enactments with
binding force one important class of imperial ordinances seems formally
to have been exempted. This class consisted of the _mandata_, or
general instructions which the Princeps gave to officials subordinate
to himself. In the early Principate they were for the most part issued
to the governors of Caesar’s provinces, but the gradual encroachment of
the Emperor’s powers on senatorial administration led to the mandates
being issued to proconsuls as well. When the mandate dealt with a precise
point of the _jus civile_ and was repeated by successive emperors, it
doubtless came to have the force of a rescript;[1819] but it was more
often concerned with the general administrative duties of subordinates,
directing them in the doubtful cases of the moment, and, therefore,
not necessarily laying down rules of perpetual validity. In one sense
the mandate stands higher than the rescript, for it is as a rule more
general in form, and a _mandatum_ may be the result of a series of
_rescripta_ on the same point; but in another sense it stands lower,
since it was understood that it might be recalled at any moment by
the Princeps who had issued it, and that it might not be observed by
his successor. The remarkable differences of treatment to which the
Christians were subjected during the Principate was due chiefly to
the fact that, so far as this treatment was a concern of the central
government at all, it was one directed by mandate.

A review of the powers of the Princeps as exercised through his
“constitutions” and his mandates shows that he was not regarded as a true
legislative authority, and that the binding force of his ordinances was
technically inferior to that possessed by decrees of the Senate. But the
theory of legislation was never of much practical importance at Rome. The
Romans had lived for centuries mainly under the rule of interpreted or
judge-made law, and now the Roman world, enlarged and unified, looked for
guidance, not to the _comitia_, which were in decay, or to the Senate,
whose contact with the provinces was ever becoming less, but to the one
interpreter who was known to every judge and every litigant, and whose
utterances could be heard at the farthest ends of the earth. It was the
force of circumstances, not any constitutional theory, which made the
Princeps the highest of all legislative, because the greatest of all
interpreting, authorities.

(ii.) _Jurisdiction._—If we turn from the legislative to the judicial
sphere, we find the same theoretical assertion of a dual control. But it
is complicated in this instance by the fact that the Senate is not the
sole representative of the Republican side of the administration. The
state still asserts itself through old organs such as the praetors and
the _judices_, while it has acquired a new organ in the joint activity of
consuls and Senate. In a sphere parallel to theirs the Princeps works,
sometimes exercising a jurisdiction that is all his own, at other times
infringing on their powers, but always occupying a position that exhibits
him to the provincial mind as the highest court in the Roman world. The
jurisdiction of these several courts must be treated in its separate
aspects of civil and criminal, of jurisdiction in the first instance
and by way of appeal. The power of reversing sentences and the right to
pardon must also be considered.

The civil jurisdiction of the Republic, with its division into _jus_
and _judicium_, continued during the greater part of the period of the
Principate, and the praetor still gave his legal rulings in the shape of
a formula which he submitted to a _judex_. But these _judicia ordinaria_
tended gradually to be replaced by the personal cognisance (_cognitio_)
of the magistrate, which, exercised on a limited scale by the praetor
during the Republic, became a feature of the Emperor’s own jurisdiction
from the very beginning of the Principate, and was soon extended to
provincial governors and to his great delegates, the praefects. This
jurisdiction was described as _extra ordinem_, and, like the other form,
it admitted of a distinction between magistrate and _judex_. But the
new _judex extra ordinem datus_[1820] is wholly different in character
from the _judex ordinarius_ of the older form of process. The new
procedure does not admit the distinction between _jus_ and _judicium_;
the _judex_ is a true delegate, is appointed without a _formula_, and
decides on the law as well as on the facts of the case. The sphere of
the _cognitio_ of the Princeps was probably unlimited in theory, and
may have been conferred on the first Emperor by statute.[1821] It was
a voluntary jurisdiction which any one might request and which the
Emperor might refuse. In case of such refusal the case was taken by
the praetor. The early Principes, however, showed an unwillingness to
interfere with the common-law jurisdiction of the ordinary courts, and
confined their attention to cases of equity, such as those springing from
matters of trust (_fidei commissum_) and guardianship (_tutela_). But
the number even of these cases soon became too vast for the cognisance
of the Emperor and his occasional delegates, and we have seen how
special praetors were successively appointed to share in this equitable
jurisdiction.[1822]

The civil courts of appeal existing under the Principate are partly
due to a survival of the Republican principle of _appellatio_ to a
magistrate with the right of veto, partly to the principle (new for
Rome, though not for the provinces) of delegated jurisdiction, and
partly to a wholly novel principle of an appeal which can completely
reverse the decisions of a lower court, which has its origin mainly in
an attempt at centralising the higher provincial jurisdiction in Rome.
From the decision of a _judex_ in the _judicia ordinaria_ there is now,
as formerly, no appeal to any authority, although, as we shall see, the
sentences of _judices_ might, under certain conditions, be reversed by
the authority either of the praetor or the Princeps. From the decision
of the praetor _in jure_ an appeal lies as before to an equal or higher
authority,[1823] and the veto in virtue of the _major potestas_ or
_majus imperium_ is naturally possessed by the Princeps. When we find
Tiberius present in the praetor’s court, he may be there for the purpose
of over-ruling that magistrate’s decisions.[1824] His presence seems to
show that the limitations of the old _auxilium_—which must be offered in
person[1825]—were preserved. Whether the veto was pronounced in virtue
of the _imperium_ or in virtue of the _tribunicia potestas_ is a matter
of indifference; how the veto operated is the really important point. On
the analogy of the Republican intercession its effects should have been
purely cassatory, and perhaps in the early Principate this principle
was observed. But it must be remembered that the Princeps is in a very
different position to the vetoing consul or tribune of the Republic,
or even to the Republican praetor who presides over a department other
than that which he controls by his veto. These magistrates can negative
a decision of a lower court, but they cannot replace this negatived
decision by a positive judgment of their own. The Princeps, on the other
hand, has a theoretically unlimited power of civil jurisdiction.[1826] He
can, therefore, supplement his negative by a positive judgment, and this
unique combination of the power of vetoing and the power of judging is
almost unquestionably the basis of that appeal to Caesar which leads to
the reformation of a sentence. It is not improbable that the appeal came
to operate in this way even against the praetor, although, even if it
did not, the effect of Caesar’s veto would really be reformatory. Even
the tribunes of the Republic could put pressure on a praetor to induce
him to alter his formula,[1827] and we can hardly imagine the praetor
withstanding the suggestion accompanying a veto pronounced by the holder
of the _tribunicia potestas_. The jurisdiction of the municipal towns
of Italy was, so far as it was “ordinary” jurisdiction, still under the
control of consuls, praetors, and tribunes, at least as late as the reign
of Nero.[1828] These municipal courts were technically those of the
_praetor urbanus_, and the Princeps probably interfered (if at all) with
their jurisdiction only through his control of the rulings of the praetor
in Rome. We shall trace elsewhere the mode in which the extraordinary
jurisdiction of one of Caesar’s delegates, the praefect of the city, came
to encroach on the ordinary jurisdiction of the Roman courts.

Another method of appeal springs from the principle of delegated
jurisdiction. Caesar, when he cares to exercise civil jurisdiction,
can perform it either personally or through mandataries, and there is
necessarily an appeal from the mandatary to the higher authority, unless
this authority distinctly asserts that no appeal will lie.[1829] The
appeal in such a case, if it is upheld, issues not merely in the veto but
in the reform of the sentence of the mandatary. Caesar may, of course,
employ such delegates as he pleases. Augustus used the _praetor urbanus_
and _consulares_ for home and foreign _appellationes_,[1830] a word which
in this context probably means simply “requests for cognisance” made
to the Princeps. The imperial jurisdiction in matters of trust (_fidei
commissa_) was delegated to consuls or to praetors.[1831] But, apart from
this regular delegation, the Emperor might instruct any one to be his
_judex extra ordinem_, when he did not care to take the case himself.

The appeal from provincial governors was, so far as the public or
senatorial provinces were concerned, the result of a conscious striving
after unity of administration, although it was not wholly unconnected
with Republican precedents; with respect to Caesar’s provinces, it was
a direct consequence of the fact that the governors of these provinces
were merely his legates, although the frequency with which the appeal
was allowed shows the same striving for a centralised jurisdiction.
The principle which in the early Principate regulated appeals from the
public provinces was that these should come invariably to the Senate,
and this principle of the dyarchy, which tended to be disregarded, was
emphatically restated by Nero at the commencement of his reign.[1832]
It was probably a development of a Republican custom in accordance with
which certain important cases had been summoned from the provinces to
Rome by the consuls and Senate (_Romam revocatio_);[1833] but this
principle seems to have been now extended to include true cases of
appeal as well as cases of denial of jurisdiction. When such appeals in
civil matters came to Rome, it is probable that the Senate delegated the
hearing of them to the consuls.

The fact that this principle of the appellate jurisdiction of the Senate
required restatement in 54 A.D. prepares us for the ultimate neglect
into which it fell. It is certain that by the close of the second and
beginning of the third century, Caesar, or his great delegate the
praefect of the praetorian guard, is the universal court of appeal
for the whole provincial world. This result cannot be attached to any
power possessed by the Princeps over the proconsuls of the public
provinces; for the statement that he possessed _maius imperium_ over
such governors[1834] can only mean that in any collision of authority
the Princeps is not inferior to the proconsul. The world-wide appellate
jurisdiction of the Princeps was a thing of very gradual growth, and
it originated, not from any idea of his prerogative, but from the
irresistible tendency of provincial governors, senatorial as well as
imperial, to refer their difficulties to the highest interpreting
authority in the Roman world, the Princeps and his _consilium_ of
judicial advisers. It is no wonder that the man who became the central
source of law should also become the universal authority for its
interpretation in detail.

When we turn to criminal jurisdiction, we find that here too there are
three sources of _jus_. The Republic is represented by the _quaestiones
perpetuae_ with their praetors and equestrian _judices_, and also by the
new criminal jurisdiction which has been attached to the consuls and the
Senate; the Principate is represented by the jurisdiction of the Princeps
and his delegates. The jurisdiction of the _quaestiones_, so long as it
continued,[1835] proceeded on the old lines. They judged except where the
case, through a request of the parties accepted by a higher court, was
exempted from their jurisdiction. The higher courts, which might stop
their jurisdiction by accepting a case, were those of the Senate and
the Princeps. Both of these were high courts of voluntary jurisdiction,
and no appeal was permitted from one to the other.[1836] Voluntary
jurisdiction is by its nature difficult to define; but custom tended to
limit the Senate’s cognisance to certain classes of cases. These classes
were determined either by the position of the accused or the nature of
the offence. The Senate tried ordinary crimes, such as murder, adultery,
incest, when they were committed by the members of the upper classes
in society,[1837] and there was a growing feeling, which subsequently
obtained something like legal recognition, that a senator should be
tried by his peers.[1838] But the character of the offence was the chief
determinant of the Senate’s jurisdiction. Any offence of a directly
political character, even in the early Principate a breach of a treaty by
a foreign prince,[1839] tended to come before it. It was the usual court
for extortion or other misuse of powers by provincial governors;[1840]
it judged offences against the majesty of the state;[1841] and when the
majesty of the Princeps had become identified with that of the state,
it might be employed as a convenient engine of judicial tyranny.[1842]
Its utility was assisted by the unlimited and arbitrary character of
its jurisdiction. It interpreted while it judged; it might extend the
incidence of a law and frame new penalties; it might even punish in cases
where no penalty was fixed by law;[1843] and the principle, forbidden in
the _quaestiones_, of uniting several crimes in the same charge, was here
admitted.[1844] This jurisdiction was technically, perhaps, a _cognitio_
of the consuls.[1845] But the Senate was their constant advising body,
and the sentence took the form of a _senatus consultum_. We shall soon
see how the Emperor’s presence at the board enabled him to influence a
jurisdiction which was technically independent of his control.

The voluntary jurisdiction of the Princeps in criminal matters was
theoretically unlimited, and could be exercised at any time or in any
place. It rested with him whether he would undertake the cognisance
(_cognitionem suscipere_) at the request of one of the parties,[1846]
or refer the case to the ordinary courts that is, to the _quaestio_
competent to try it. The relations of the two high courts of voluntary
jurisdiction to the ordinary court of necessary jurisdiction, are
admirably exemplified by the procedure adopted in the trial of Piso
for the murder of Germanicus (A.D. 19-20). It is at the outset assumed
that the case, which is one of poisoning, will come before the special
commission established by the _lex Cornelia de veneficis_. But the
Emperor’s cognisance is sought by the prosecutor, and Tiberius and his
_consilium_ actually listen to the preliminaries of the trial. But
the Emperor soon sees how invidious it will be to pronounce judgment
in a case in which the murder of his own nephew and adopted son is
the subject of investigation, and he, therefore, sends the matter
unprejudiced to the Senate with a request that they should exercise
their voluntary jurisdiction—a request which, coming from the Princeps,
it was practically, although not legally, impossible for the Senate to
decline.[1847]

But, although any request for cognisance might be listened to, the
Princeps usually confined his personal jurisdiction to certain spheres.
These included serious crimes committed by members of the upper ranks in
society, but especially offences committed by imperial servants or by
the officers of the army.[1848] The Emperor might, of course, delegate
this jurisdiction, although the delegation of special cases seems to
have been unusual.[1849] On the other hand, the regular delegation of
certain kinds of offences is frequent enough, and is the basis of the
criminal jurisdiction of the Emperor’s servants, the various praefects
who presided over the city, the praetorian guard, the corn-supply, and
the watch.[1850]

A peculiar right of the Princeps to try cases from the provinces in
which the lives of Roman citizens were involved may, perhaps, have grown
up during the Principate. It certainly does not exist during the early
portion of this period. Instances of the maintenance of the Republican
principle, that capital charges against Roman citizens should be sent
to Rome, are indeed furnished by such cases as those of the Bithynian
Christians in the reign of Trajan,[1851] and perhaps of St. Paul’s
appeal in the reign of Nero;[1852] and perhaps such a demand for a
trial at Rome was accompanied by a request, usually accepted, to be
tried before the Princeps; but there are as many instances which prove
the unlimited jurisdiction of the provincial governor, at least when
dealing with ordinary crimes. Thus Marius Priscus scourged and strangled
a Roman knight in the province of Africa, and Galba, when governor
of Tarraconensis, crucified a guardian, who was a Roman citizen, for
poisoning his ward.[1853] There are, however, signs that the right to
kill (_jus gladii_), if this expression refers to ordinary as well as
to military jurisdiction, was specially given by the Emperor at least
to the administrators of his own provinces,[1854] which shows that the
frequent requests of one who stood “before Caesar’s judgment seat” to
be tried by Caesar had issued in some standing rule. At a later time,
when the universal criminal appeal to Caesar had grown up, certain
persons—senators, officers, and decurions—are exempted from capital or
severe penalties pronounced by provincial governors,[1855] and this
jurisdiction, reserved for the Princeps, was exercised by the _praefectus
praetorio_ without appeal.

The Princeps was (especially in the early Principate) by no means a
universal court of criminal appeal for the whole Roman world. There was
no appeal to him from the _quaestiones perpetuae_, although he may have
had some right of rescinding the inequitable judgments of such courts
(_in integrum restitutio_); nor is there theoretically any appeal from
the Senate, although the Princeps possesses, through the _tribunicia
potestas_, a practical power of rescinding the judgments of that
body.[1856] In the matter of jurisdiction delegated to his praefects,
the appeal lies unless he wills it away, as he does in favour of the
_praefectus praetorio_. With respect to the provinces, the principle
of the dual control, which we have illustrated with reference to civil
jurisdiction,[1857] must have originally been supposed to hold good
with reference to criminal jurisdiction as well; but the dyarchy was,
in this particular, ultimately dissolved. By the end of the second
century Caesar, represented in most cases by his inappellable praetorian
praefect, was the highest court of criminal appeal for the whole Roman
world.

Besides the right of appeal, there is in most political societies a
power residing somewhere which is, or approximates to be, a power of
pardon. It is sometimes regarded as a signal attribute of sovereignty,
but somewhat improperly, since the power of rescinding sentences or of
ordering a new trial may reside in a mere executive authority, such
as a court of cassation, which possesses none of the other attributes
which we usually associate with a sovereign. In the constitution of the
Principate it is certainly not regarded as a sovereign right, for the
power is limited and, like most of the manifestations of public life, is
theoretically divided between the organs of the Republic and the Princeps.

The Senate possessed no general power of pardon beyond the right,
inherited from the Republic, of annulling charges and thus releasing
people, who are on their trial, on certain public and festal
occasions.[1858] This right of declaring _abolitiones publicae_ was one
expression of its right of amnesty.[1859] But the Senate had besides,
as a high court, the right of rescinding its own former sentences (_in
integrum restitutio_).[1860] It might also be occasionally consulted by
the Princeps on the advisability of his rescinding the sentences of the
imperial courts—those, as a rule, which had been pronounced by former
Emperors.[1861] But such consultation was not a right of the Senate, but
merely a concession of the Emperor.

The Emperor, in his relation to the courts of Rome, possessed the full
power of _restitutio_ only over his own sentences and those of his
predecessors in office.[1862] He had no right of interference in the
way of _restitutio_ with the judgments of the Senate, for the power
which he possessed, of preventing the reception of the charge[1863] or
the execution of the judgment, was merely a practical and accidental
consequence of the application of the tribunician power to a decree of
the Senate.[1864] Nor is there any distinct evidence of his possessing
the power of rescinding the sentences of the _quaestiones perpetuae_,
although interference with these on equitable grounds is not improbable,
and seems, where permitted, to have taken the form of consent to a
new trial (_retratactio_).[1865] With respect to the ordinary civil
courts, the praetor possessed the power of equitable restitution,[1866]
but there is evidence that the Princeps, also as a court of equity,
might rescind inequitable sentences both of ordinary _judices_ and of
_centumviri_.[1867]

The Princeps also possessed a power of quashing indictments (_abolitio_),
which does not seem to have been confined to his own jurisdiction, but
to have been extended to other criminal courts as well.[1868] Its origin
may be explained on two grounds. The first depends on the fact that it
was possible to have any case brought to the Emperor’s court, on the
request either of the prosecutor or of the accused. The Emperor might,
after listening to the preliminaries, refuse to hear such a case without
“remitting” it to another court,[1869] and it is very improbable that any
other authority would listen for a moment to a prosecution to which the
Emperor had declined to attend. The dismissal of the case by the Princeps
was practically a power of abolition; but the right might have been
exercised even more directly. Republican history furnishes an instance
of a tribune prohibiting the president of a _quaestio_ from receiving a
charge,[1870] and it is obvious that the _tribunicia potestas_ of the
Princeps might have been exercised in the same way to impede the first
step in the jurisdiction of every criminal court.

With respect to the provinces, just as the criminal appeal finally
passes to the Emperor,[1871] so the revision of the sentences of the
local courts, where revision is suggested by the judge,[1872] as well as
the infliction of punishments denied to the judge—such as the capital
penalty on decurions or deportation on any one[1873]—centre finally in
the hands of the Princeps. All right of revision and restitution is not,
indeed, denied to the provincial governor,[1874] but while this was
finally restricted by certain well-defined rules, the Emperor’s power of
restitution appears ultimately to have been unlimited. “This power might
be so employed by the Emperor as to take the form of a free pardon,[1875]
but theoretically it was merely an equitable assistance. As a legally
unlimited power of rescinding sentences, it approaches very nearly to
a power of pardon; but it is an executive duty rather than a sovereign
right, and we search in vain in the Principate for a power of pardon
regarded as an admitted constitutional right of a sovereign.”[1876]

(iii.) _Administration._—The principle of a dual control is as manifest
in administrative matters as in any other. The spheres of administration
are Rome, Italy, and the Provinces. With respect to the first two it
is clear that one of the few justifications for the maintenance of
Republican government was that, by leaving the ordinary administrative
duties connected with Rome and Italy to the Senate and ordinary
magistrates, it enabled the Princeps to concentrate his attention on his
proper sphere, the foreign and provincial world. But even the provinces
did not deserve the undivided attention of the Princeps. Those whose
administration presented no special difficulties, and which required no
military force, might still be left to the care of the Roman people.
This division of responsibility might have continued a reality had the
Principate continued to be what it was in origin—a provisional government
by an individual who had little personal assistance at his command. But
as this rule gradually assumed the form of a huge government department,
overshadowing all others, with an organised civil service which replaced
the assistance furnished by freedmen and slaves, it not unnaturally
tended to encroach on the Republican spheres of administration. The
motive for the tendency was chiefly the fact that the Princeps was, in
the eyes of all men, not the head of a department but of the state, and
a responsibility, which he would gladly have disclaimed, for the acts of
all officials, even those of Republican departments, was thus thrust upon
him.[1877] There is no particular ground for believing that the Princeps
managed departments such as Rome or Italy better than the Republican
officials. The important fact was that public opinion forced him to
manage them, whether for good or ill.

(iv.) _Finance._—Finance at Rome was always so intimately bound up with
provincial control, that the division of the provinces into public and
imperial implied of itself the existence of two separate financial
departments. The Senate still asserts control over the _aerarium_, and
gives instructions to the guardians of the chest. The qualification of
these guardians varied from time to time. The dictator Caesar had in
45 B.C. given the charge to two aediles, but quaestors seem again to
have been the presidents of the treasury[1878] until Augustus in 28
B.C. instituted two _praefecti aerarii Saturni_, chosen yearly from the
ex-praetors by the Senate.[1879] Even this change was short-lived, and
the praefects were soon replaced by two of the praetors of the year who
received their _provincia_ by lot.[1880] Claudius in 44 A.D. restored the
Republican method of administration through quaestors; but these were
no longer to be annual officials designated by lot, but to be chosen by
the Emperor for a period of three years.[1881] Finally under Nero (56
A.D.) the elements of the Augustan and the Claudian arrangements were
combined[1882] in the provision that two ex-praetors should be appointed
as praefects of the treasury, but that these should be named, generally
for three years, by the Princeps.[1883] The fact that the Princeps
appointed the guardians of the public chest was by no means an assertion
that he controlled its funds, and, although his indirect influence on
the _aerarium_ was unquestionably great, this treasury still remained in
principle under the direction of the Senate alone. Even in the second
century it voted a loan to Marcus Aurelius for carrying on a war.[1884]

The Princeps was rendered financially independent of the Senate through
the possession of his own treasury (_fiscus_ or _fiscus Caesaris_),[1885]
into which flowed the revenues from his own provinces, certain dues owed
by the public provinces, and some extraordinary revenues, such as the
confiscated goods of condemned criminals or lapsed inheritances (_bona
damnatorum_, _bona vacantia_), in the claim to which the _fiscus_ finally
replaced the _aerarium_. The Princeps was the owner of the _fiscus_, but
was regarded as a trustee of the wealth which it contained. To sue the
_fiscus_ was to sue the Princeps; but, although he was the sole subject
of rights in relation to this treasury, he did not regard the money which
it contained as though it were his own private property. Even in the
early Principate there is evidence of the existence of crown property
(_patrimonium_ or _patrimonium privatum_), the use of which for private
purposes was vested in the Princeps.[1886] The _patrimonium_ doubtless
commenced by being the strictly personal property of the first family
of Caesars, and much of it was acquired by bequest;[1887] but, when the
Principate had ceased to be hereditary in the Julian line, it seems to
have been looked on as crown property, which was heritable only by the
successor to the throne. The bequeathal of this property, which was
implied when the Princeps selected an heir, might thus be regarded as
a mode of designation; although, if the destined heir did not succeed,
the _patrimonium_ passed to his successful rival. It was probably due to
the uncertainty of the tenure of the _patrimonium_ that with Septimius
Severus we find the creation of a new aggregate of private property, the
_res privata_,[1888] the administration of which was kept quite distinct
from that of the _patrimonium_. All Caesar’s property, whether held in
trust for the state or for the crown, or applied to the needs of his
family, was equally administered by his own private servants. Of these
we shall speak when we deal with the functionaries of the Princeps as a
whole.

Another treasury under imperial control, which served a public purpose,
was that established for supplying pensions to discharged soldiers. The
want of it had been severely felt in the last years of the Republic,
when the mercenary army looked for its final rewards to plunder or
the political influence of its generals; and, when Augustus created a
professional army by the introduction of the long-service system, he
found it necessary to establish a pension fund for those who had given
twenty of the best years of their life to the practice of arms. The
result was the _aerarium militare_, which the Emperor endowed with a
large capital,[1889] and to which, as fixed sources of revenue, the two
taxes of the _vicesima hereditatum_ and the _centesima rerum venalium_
were assigned.[1890] The administration of this chest was given to three
praefects (_praefecti aerarii militaris_), who remained three years in
office, and were chosen from ex-praetors, originally by lot but later by
the Princeps.[1891]

(v.) _Cultus._—In matters of religion and worship the dyarchy is again
apparent. So far as the state had a religious head, the Princeps, in
virtue of the chief pontificate, occupied this position, and we have
seen the influence which this headship gave him.[1892] But the Senate
had not lost all its control over the cultus of the community or its
right to pronounce on foreign worships, when their social merits or their
legality were in question. It is the Senate that is consulted on the
growth of Egyptian and Jewish worship at Rome,[1893] and on the right
of asylum in the provinces.[1894] Claudius questions it on the subject
of the restoration of the college of _haruspices_,[1895] and Aurelian
asks it for a pontifex to dedicate the great temple of the sun-god at
Palmyra.[1896] So far as the appointment to the great priestly colleges
was not controlled by the Princeps, the gift of this honour was now in
the hands of the Senate.

(vi.) _Coinage._—The right of coinage, although its possession by a
state may be taken as a mark of sovereign rights being enjoyed by that
community, is scarcely a significant mark of the sovereignty within a
state. Whether the Senate or the Princeps possessed this right would make
little difference to the theory of the constitution. As a fact, the right
was possessed by both powers, and was an additional illustration of the
principle of the dyarchy. From the year 15 B.C. the Princeps undertakes
the gold and silver coinage, the Senate that of copper. The possession of
the latter was a privilege in so far as the exchange value of copper was
higher than its intrinsic value, and payments of any amount could be made
in what was really a token currency.[1897]

We have now exhibited the system of dual control as it existed in all the
chief departments of the state. It would be easy to prove that in almost
every particular it might be made a fiction. The senatorial power of
legislation is directed to so large an extent by the imperial initiative
that the _oratio_ of the Princeps is sometimes cited in place of the
decree of the Senate to which it gave birth;[1898] the independence of
senatorial jurisdiction is often infringed by the tribunician power of
the Emperor, while his authority is directly or remotely in conflict
with that of the other courts at every turn; his praefects tend to
usurp the administration of Rome and Italy, while his procurators are
a check on the activity of the proconsuls of the public provinces; his
influence over the _aerarium_ can be asserted whenever he cares to take
the trouble to initiate or support in the Senate the proposal of a grant
of money to himself.[1899] But such a control of departments, if wisely
asserted, by no means rendered the dyarchy nugatory. Under a judicious
prince the Republican constitution was sufficient for its own sphere in
perhaps ninety-nine cases out of every hundred; because in the hundredth
some pressure was felt from the head of the state, we cannot pronounce
the dyarchy to be a fiction. If the control by the Princeps is brutally
and unwisely, however legally, asserted, he is by common consent not a
Princeps but a tyrant. We must judge the Principate by its best names,
by a Nerva, a Trajan, a Marcus Aurelius, an Alexander, a Decius. In
the reigns of all these princes the dyarchy is a living thing. If it
is objected that it becomes a living thing merely through a concession
of the Princeps, the answer is that this concession was certainly not
pictured by these Emperors to themselves as an act of grace, but was
regarded as mere obedience to the constitution; and to maintain the
theory that a constitution which demands obedience from the wise is a
palpable fiction because it cannot enforce obedience on the headstrong,
is to wring a strange admission from political science.

§ 6. _The Senatorial and the Equestrian Nobility_

Although the authority of the Princeps rested virtually on the support
of the army, his position might have been unsafe, and would have been
embarrassing, had he not secured for the work of administration at home
and abroad an official class, that was dependent to some extent on
imperial creation and, therefore, worked in harmony with himself. The old
Republican nobility, so far as it had not been extinguished, might be
utilised; but it could be employed only by being kept in fetters, and by
power being given to the Princeps to recruit its ranks at his will. We
have already considered his control of office, his right of _adlectio_,
and his power of creating Patricians. But a wider power, cognate to
the gift of the Patriciate, was needed, to make him the patenter of a
nobility from which alone senators and magistrates were to be chosen.
Such a power had been usurped by Augustus, and the recognition of a
“senatorial order” was its result. Perhaps in the later Republic society
had already recognised the right of the prospective senator to wear the
broad scarlet stripe (_latus clavus_) on his tunic, but the right became
more clearly defined with the commencement of the Principate; and the
_laticlavii_ are prospective senators and holders of Republican offices,
either recognised as such by the Princeps or endowed by him with the
symbol of senatorial rank. The senator’s son possesses the right to wear
the _latus clavus_ and to attend the meetings of the _curia_, in which
he will one day take an active part;[1900] the eques to whom the symbol
has been given may qualify for the Senate through the vigintivirate and
the quaestorship. The first steps to office and to the Senate were, as
we have seen, usually through the army; but the young soldier who was
destined for the Senate differed, in service and in title, from his
purely equestrian compeer. The _tribuni laticlavii_[1901] are a special
class of officers, who may often have started their service, as mounted
officers of the legions, with the brevet rank of tribune, and whose
service was shorter than that of the other equites in order that they
might be qualified for the quaestorship by the age of twenty-five.[1902]
The possessors of the _latus clavus_ must always have been expected to
pursue a senatorial career;[1903] by the time of Claudius they might be
compelled to this course, the penalty of refusal being the deprivation of
the broad stripe, but sometimes of equestrian rank as well.[1904]

Great care was taken to preserve the dignity and purity of this
senatorial order. The _latus clavus_ was granted only to those who could
trace free birth through four generations, and Claudius was forced to
excuse his conduct in giving it to a freedman’s son.[1905] The Julian
marriage laws prohibited marriage with freedwomen or actresses, not only
to senators, but to their sons, grandsons, and great-grandsons.[1906]
“The order” was reckoned to include the wives of senators and all
descendants in the male line,[1907] together with adoptive children,
until they were emancipated, and even those natural children who had
been emancipated.[1908] The commercial disabilities of senators were
perpetuated and sharpened. The Republican prohibition that they should
not be purchasers of public contracts[1909] was renewed by an edict of
Hadrian.[1910] They were permitted to invest capital at a moderate rate
of interest, but at times even this was disallowed.[1911]

These disabilities were, however, to some extent compensated by
privileges. As the senators ceased to be purely Roman, the question of
their duties to their native states had to be considered, and the rule
was fixed that, while they were allowed to retain their domicile of
origin (_origo_), they owed no public duties (_munera_) to the cities of
their birth.[1912] We have already mentioned the growth of the principle
which reserved criminal jurisdiction on a senator to the senatorial
court.[1913]

In the early Principate there was no distinct title reserved for the
order, but after the close of the first century the epithet _clarissimus_
came to be applied to its members, and the title _clarissima_ is even
given to women of senatorial rank.[1914] A distinction in office and
dignity but no distinction in rank separates the Princeps from the
senators. They are his “peers” (ὁμότιμοι),[1915] and this peerage is
chiefly shown in their sole participation in Republican offices. They
might, indeed, be delegates of the Princeps, but not his servants in the
sense in which the procurators were. Besides filling the regular offices
of state, senators possessed a monopoly of provincial government, where
the country governed was a true _provincia_ and not a department assigned
temporarily or permanently to a procurator or praefect; they were the
sole commanders of the legions, and, as Caesar’s nominees, they filled
the office of praefect of the city and the various commissionerships
(_curationes_) for duties which he had undertaken, such as the care of
the water-supply, of the roads, of public works, and of the banks and
channel of the Tiber (_curatores aquarum, viarum, operum publicorum,
alvei et riparum Tiberis_).[1916]

We have already spoken of the military training and attitude of this
nobility,[1917] and also of its gradually increasing provincial
character.[1918] Both these characteristics were in harmony with its
sphere of duties, which were mainly provincial. A successful member of
the order could have seen but little of Rome or Italy until his declining
years. If his early military service was real and not nominal,[1919] he
spent most of the years between eighteen and twenty-five in the camps and
on the frontiers. If he had shown military ability, he might be sent back
as an ex-quaestor to take command of a legion, although such a legateship
was usually reserved to men of praetorian rank.[1920] The praetorship
and consulship qualified him for long terms of service in successive
Caesarian provinces, and for the annual governorship of those still under
the control of the Senate.[1921] This identification with provincial life
was an identification with the Principate, for there were few Republican
associations to impress the mind when the bounds of Italy had been
passed. The principles of selection, training, and habituation to which
this nobility was subject were thus directed to inspire it with a belief
in, if not with an enthusiasm for, the accepted order of things.

The second order which supported the throne and did the work of the
Empire was that of the Equites. The word _eques_ has now, as in the
Republic, a dual signification. Tacitus employs it to describe the
capitalist class, presumably the possessors of a census of 400,000
sesterces,[1922] and it is obvious that current terminology did not
accept the restrictions which the Principate may have wished to impose on
the use of the term. It is uncertain what these restrictions were, for
literature and inscriptions mention two methods of conferring equestrian
rank, and it is not known whether these methods—the gift of the rank
through the gold ring and through the public horse—were sometimes
alternative or always concurrent. But the grant of knighthood to freedmen
is described as having been effected by the gift of the gold ring[1923]—a
gift which, as early as the time of Hadrian, had come to confer free
birth (_ingenuitas_) merely and not equestrian rank,[1924] and it cannot
be shown that the public horse was always given to members of this class
when they were endowed with the _insignia_ of knighthood.[1925] It is
not improbable, however, that when the gold ring had lost its earlier
signification and become merely a means of conferring free birth, only
one order of official equites was recognised, and that the title in its
proper sense was restricted to the order whose members had, from the
time of Augustus, been pre-eminently the bearers of the name. This order
was the old one of the _equites equo publico_, which was reorganised
and vastly extended in scale at the very beginning of the Principate. We
are told that even under Augustus the annual parade might witness the
appearance of five thousand knights,[1926] and these could have been
but a portion of the order, for many members of the corps must have
been detained on financial, administrative, and military duties in the
provinces. This increase in numbers seems to have led to the abandonment
of the old centuriate organisation, for the equites of the Principate
are grouped in _turmae_ and commanded by _seviri_.[1927] Selection for
the order was entirely in the hands of the Princeps,[1928] and probably
any one with the requisite qualifications—free birth, good character,
and a property of 400,000 sesterces—could get this patent of nobility
from the Emperor’s hands. At the times when the censorship was revived
in the person of the Princeps,[1929] the selection and elimination of
equites may have followed the rules prevailing under the Republican
system of revision;[1930] but, as the censorship was no part of the
constitution of the Principate, some department must have existed from
the first for the purpose of registering the names of applicants. We find
a permanent bureau eventually established for this purpose. It bore the
title _a censibus equitum Romanorum_, and seems to have been a branch of
the general department of petitions (_a libellis_).[1931] Although this
office was concerned primarily with the duty of admission to the order,
yet its holders must have pointed out to the Princeps cases where the
qualifications requisite for knighthood had ceased to exist, and they
must thus have acted as the board that really controlled the tenure of
the rank. The formal control in this particular was, however, effected,
now as in the Republic, by a solemn and public act. The act, although
a Republican survival, was not employed with its Republican meaning.
The parade of the knights (_transvectio equitum_) on the Ides of July
had, during the Republic, been a mere procession; it was now given the
significance of the censorian review in the Forum,[1932] and became the
means of testing the qualifications of members of the order (_probatio
equitum_).[1933] The knights now passed on horseback, not on foot; they
could not ask for their discharge (_missio_), for the tenure of their
rank was no longer conditioned by military service, although Augustus
finally permitted all members of the age of thirty-five, who were
unwilling to continue in the corps, to return their public horses;[1934]
but the knights were still questioned and made to give an account of
their conduct,[1935] and those whose answers were unsatisfactory were
dismissed from the ranks.[1936] That Augustus took this duty seriously is
shown by the fact that he more than once asked the Senate for committees,
whether of three or ten members, to assist him in the work.[1937] But,
although this parade is found in the reigns of subsequent Emperors,[1938]
and can be traced as late as the fourth century A.D.,[1939] the serious
duty of rejection was probably exercised more and more by the permanent
bureau which admitted to the order.

The eighteen centuries of Roman knights had, even at the end of the
Republic, never lost touch with the army. They had ceased to be the
citizen cavalry, but they were composed of the young nobility who
furnished the mounted officers of the legions. This secondary military
character was retained by the corps in the Principate; but it had an
additional significance as well. There can be no doubt that it was from
the _equites equo publico_ that the Emperors chose those members of the
official hierarchy—procurators and praefects—who were of equestrian rank.
It is less certain whether this corps furnished all the _judices_ during
the early Principate. Jurisdiction, whether civil or criminal, was a
burden (_munus_), and this may have been imposed on all who possessed
the requisite census, whether they had made profession for the order or
not.[1940]

It was natural that an order thus definitely constituted, and which
became more rigid as time went on, should end by enjoying titles of
honour peculiar to itself. This stage had been attained by the second
century; but the titular designations are not strictly those of the
equestrian order, but of the grades of office to which it led. After the
reign of Marcus Aurelius the equestrian hierarchy was divided into three
classes; the first contained only the praefect of the praetorian guard
who was called _vir eminentissimus_; the second the other equestrian
praefects and higher procurators, who bore the title _perfectissimi_; the
third—the possessors of all other equestrian posts—were _egregii_.[1941]
The equestrian officers of the army were not graduated on a similar scale
of rank, and the municipal knights of Italy are designated only by the
old Republican and non-official epithet of _splendidi_.[1942] The more
definite, but equally non-official, epithet of _illustris_ may have
been applied to individuals who possessed the senatorial census and the
_latus clavus_, but who were passing through the equestrian service in
the army (_equestris militia_), which was preparatory to entrance into
the Senate.[1943] But the name more particularly designated men who,
possessed of a senatorial fortune, preferred to retain their equestrian
rank, and even perhaps any equites of fortune and dignity such as the
holders of the great praefectures.[1944]

§ 7. _The Functionaries of the Princeps_

The Princeps, since he is not a king, has neither magistrates nor
ministers subject to his will; but he possesses a number of delegates
and servants who assist in the performance of his vast duties of
administration. Some of these, such as the legates, praefects, and
curators, find analogies in the Republican constitution; others, such
as the procurators and secretaries of departments, are borrowed from
the organisation of a Roman household and are transferred from the life
of the palace to that of the state. We may neglect for the moment the
legates and provincial praefects, who will be considered in the section
dealing with the organisation of the provinces, and fix our attention on
the offices of the central government, which are either peculiar to Rome
and Italy or common to them and the provincial world.

(i.) _The Praefects._—The four great praefectures, which were concerned
originally with the administration of Italy and Rome, were those of
the city (_urbi_), the praetorian guard (_praetorio_), the corn-supply
(_annonae_), and the watch (_vigilum_). Of these the first stands
entirely out of relation to the others so far as the career and
qualification of its holders were concerned; for, while the praefecture
of the city was a senatorial post, all the others were, during the
greater part of the Principate, equestrian. Of the three latter offices
the praefecture of the praetorian guard was the highest in rank, next
came that of the corn-supply, and thirdly that of the watch.[1945]

The praefecture of the city was the continuation in name, and to some
extent in functions, of one of the oldest offices in Rome;[1946] but
the historical continuity is rendered somewhat imperfect by the fact
that the ancient praefecture, which had originated with the kings and
had ceased to be a reality only with the appointment of the first
praetor,[1947] still continued in a shadowy form during the Principate
as the praefecture created when the days of the Latin festival drew the
magistrates away from Rome.[1948] But the new office of the Principate
was, in a sense, a continuation of the old one of the monarchy. Both were
products of personal rule and were based on the theory of delegation; the
later office was suggested by the earlier, and both had much the same
sphere of administration. The link between the Republican office and that
of the Principate is found in the arrangements of the dictator Caesar
and in the earlier procedure of Augustus. The link was broken when,
under Tiberius, the praefecture became a permanent and not an occasional
office. In 46 B.C. Caesar had left six _praefecti_ in Rome to administer
the affairs of the city during his absence;[1949] Maecenas had had a
similar, though less definite, position given him by Augustus;[1950] and
when the latter became Princeps, the praefecture between the years 27 and
24 B.C. became a more regular, although still an occasional office, and
was renewed from time to time by Augustus during his absences from the
capital.[1951] Tiberius’ long periods of retirement made it practically
perpetual,[1952] and under subsequent reigns the praefect remains in
office even when the Princeps is present in Rome.[1953] It was, perhaps,
due to its associations with the Republican magistracy that this office
was filled by a senator and a consular.[1954] The same associations may
account for the facts that the praefect of the city, although a delegate
of the Princeps and nominated by him for an indefinite period,[1955] is
yet accounted a magistrate, and is even credited with _imperium_.[1956]

One of the early occupants of the office[1957] sent in his resignation
six days after his appointment on the ground that he had held an
_incivilis potestas_; and indeed the scope of the praefect’s duties
and the extent of summary jurisdiction and coercive power which they
involved, might easily lead a sensitive mind to shrink from such
un-Republican authority. The praefect was briefly the guardian of the
city (_custos urbis_), and nothing that could be construed as a part of
that _tutela_[1958] was exempt from his control. It was his duty to keep
order everywhere, at the games as in the market, and for this purpose he
had at his disposal the city cohorts (_cohortes urbanae_) established by
Augustus,[1959] three divisions of which were quartered in Rome during
the reign of Tiberius.[1960] But the preservation of order implied
interference with a great many departments of civic life. The praefect
controlled the theatre, the money-changers, the sale of meat, the
trading and religious guilds; he listened to the grievances of slaves,
or to the complaints of _patroni_ about their freedmen, and finally
even had cognisance of serious offences committed by guardians.[1961]
The criminal jurisdiction, which was the complement of his authority,
was so indefinite that at a very early period it crossed that of the
_quaestiones perpetuae_,[1962] and, as the tendency of the Principate was
to make the latter give way before the former, we are not surprised at
the unlimited criminal jurisdiction described by Dio Cassius and recorded
in the _Digest_ as vested in the praefect in the third century A.D.[1963]
He might at this time inflict the severest punishments, even deportation
or condemnation to the mines.[1964] His police control and criminal
jurisdiction extended to the limit of a hundred miles from Rome.[1965]
Within the city he might judge in person; jurisdiction in Italy he
exercised through delegates.[1966] He also possessed a certain civil
jurisdiction connected with his functions of preserving order,[1967] and
finally became the court of appeal, in civil cases, from officials in
Rome.[1968] But he was not a final court, for a further appeal lay from
the praefect to the Emperor.

The _praefectus praetorio_ was in origin the commander of the Emperor’s
bodyguard. This _corps d’élite_, which even in the Republic had grouped
itself round a commander in the field, was given a definite existence and
organisation in the year 28 B.C.,[1969] and became the police of Italy,
the selected home force composed, unlike the legions, mainly of Italian
citizens,[1970] and the protector, often the transmitter, of the throne.
Its praefects at this early stage represent the military character of
the despotism perhaps more purely than any other officials, and even
the reign of the second Caesar could show in Sejanus one of the most
formidable of those praefects who were almost partners of the throne.
The danger threatened by the office illustrates its power, and this was
recognised when Vespasian sought security by giving the praefecture to
his own son Titus,[1971] or Severus married his elder son to the daughter
of his praefect Plautianus.[1972] A more favourite method was to increase
the number of its holders. Two were frequently appointed, and three
are found on two occasions since the time of Commodus.[1973] Gradually
the military functions of the office ceased to be the most important,
although its military history had determined its character. The praefect
of the guard had always been the man who stood next the throne; he was a
truer _alter ego_ of the Princeps than the praefect of the city, for his
activity was not confined to Rome and Italy. It was he who issued rapid
injunctions for the organisation of the army or for the guidance of the
civil service throughout the Empire, and at times we find two praefects,
such as Adventus and Macrinus in the reign of Caracalla, representing
respectively the military and civil spheres. But jurisdiction, the most
constant of the Emperor’s cares, and the framing of legal decrees, also
demanded the attention of the praefect, and hence it was necessary to
entrust the office to the first jurists of the Empire. Papinian, Ulpian,
and Paulus were all praefects of the guard. The change in the character
of the office perhaps began with Hadrian; it was carried on during
the reigns of the Antonine Emperors, and finally achieved in that of
Septimius Severus. The judicial aspect of the office was now paramount.
The praefect has become the highest criminal judge in Italy outside the
hundredth milestone;[1974] he is the court of appeal in criminal cases
from all provincial governors,[1975] and judges in those cases which the
provincial governor was not competent to decide.[1976] He is also the
court of appeal from provincial governors in civil cases.[1977] This
extensive jurisdiction was a result of the centralisation of judicial
power in the Emperor, which we have already traced.[1978] It had to be
delegated, and no fitter delegate could be found than the praefect.
Convenience also dictated that the delegation should be final, and the
principle was finally arrived at that there should be no appeal from
the praefect to the Emperor.[1979] This did not mean that the Emperor
ceased to judge; for at any moment he might displace his praefect and
hear the case himself. As the praefect judged _vice principis_, it is
natural to suppose that he presided over the imperial _consilium_,[1980]
which attained a definite organisation in the reign of Hadrian;[1981]
and this probability is scarcely shaken by the fact that we find special
_consiliarii_ nominated for the praefect,[1982] for he exercised a
varied jurisdiction and might be holding a court at the same time as the
Emperor. Apart from jurisdiction, his general mandates and ordinances had
legal force, provided that they did not conflict with laws or imperial
constitutions.[1983]

During the greater part of the Principate equestrian rank was a necessary
qualification for this praefecture. Senators first began to hold this
office from the time of Severus Alexander, who gave his praefects
_senatoria dignitas_ and the title _clarissimus_,[1984] for it was
held that one who pronounced judgment on a senator should himself be
of senatorial rank.[1985] At the time when the praefect was a knight,
dismissal from office often took the form of making him a senator or a
member of the senatorial order.[1986]

The _praefectus annonae_ was the final product of a question that had
never ceased to agitate Rome from the close of the Punic wars. Anxiety
about the supply of corn to the capital had raised Pompeius to an
extraordinary position in 57 B.C.,[1987] and in 43 the Senate, alarmed
at the possible designs of Antonius and Octavian, had agreed that no
individual _curator_ for corn should again be appointed.[1988] In the
early Principate the duty belonged technically to the _aediles cereales_
instituted by Caesar;[1989] but epochs of scarcity led to its being
taken over by the Princeps. Augustus accepted the task in 22 B.C.,[1990]
but whether as a permanent cura is uncertain,[1991] and in 18 B.C. and
6 A.D. experiments were made to carry it through by the appointment
of _curatores_ of praetorian or consular rank.[1992] Finally, as a
definite _cura_ of the Princeps, it was given to a praefect. The _cura
annonae_ as undertaken by the Princeps involved two charges; firstly,
the gratuitous distribution of corn to the poorer classes at Rome, and
secondly, the placing of corn on the Roman market for purchasers as well
as recipients. It was with the latter of these duties that the praefect
was chiefly, perhaps exclusively, concerned.[1993] He had to see that
the requisite mass of grain was brought to the market, and that it was
sold at a moderate and stable price.[1994] Assistance was furnished
him by subordinate officials in Rome itself, in the harbours of Italy,
and in the provinces, senatorial as well as imperial; but the number
of these procurators was not large, since the lower departments of the
corn-supply were managed by guilds, such as those of the _mensores_
and _navicularii_,[1995] “associations that originally leased their
services to the state and finally became its instruments.”[1996] The
praefect possessed a jurisdiction arising from his administrative
duties. He listened to criminal informations touching the public supply
of corn,[1997] and seems even to have heard certain civil actions
arising out of the corn trade.[1998] The appeal from his judgment went
immediately to the Emperor.[1999]

The institution of the _praefectus vigilum_ was equally the result of
the Emperor’s undertaking a special department of administration that
had formerly belonged to Republican magistrates. The guardianship of the
town against fires and nocturnal disturbances had belonged chiefly to the
_triumviri capitales_,[2000] and in a more general way to the aediles.
But the Republican appliances were found insufficient, and Augustus
formed an early scheme for giving the curule aediles a fire-brigade of
six hundred slaves.[2001] Even this did not prove satisfactory, and in
A.D. 6 he undertook the new _cura_—an undertaking which was followed by
the establishment of seven cohorts of _vigiles_, one for every two of the
fourteen regions of the city, and the creation of a praefect set over the
tribunes who were commanders of these divisions.[2002] This praefecture
was, like that of the corn-supply, equestrian, and the two differ little
in rank; for, although the _praefectura annonae_ was reckoned superior,
direct promotion from the command of the _vigiles_ to that of the
praetorian guard is found.[2003] The praefect protected the town and
patrolled the streets by night, and he exercised a jurisdiction closely
connected with his police functions, and resembling, in a lower degree,
that of the praefect of the city. He tried cases of arson, robbery,
burglary, and thefts in baths;[2004] but the higher jurisdiction in such
cases belonged to the _praefectus urbi_, and the praefect of the watch
could not try Roman citizens on capital charges.[2005] In the third
century he possessed some civil jurisdiction in matters connected with
leases and house-rent.[2006]

(ii.) _The Curators._—There were certain _curae_ undertaken by Augustus
which he did not give to equestrian praefects, but to senatorial
_curatores_. These _curae_ of the roads of Italy, of the public works,
of the public water-supply, and of the channel and banks of the Tiber
(_viarum, operum publicorum, aquarum publicarum, alvei et riparum
Tiberis_), were filled by nomination of the Princeps, but their holders
were perhaps, like the praefects of the _aerarium_, regarded as officials
of the people or of the Senate rather than of the Emperor; the reason for
this view probably being that the care of the roads, _opera publica_,
and the like was concerned with _solum publicum_, and “the public soil
in Rome and Italy was, even after the foundation of the Principate, not
the property of the Emperor but of the people or the Senate.”[2007] Hence
in the early Principate the pecuniary means for this administration was
guaranteed from the _aerarium_, the _fiscus_ merely contributing.[2008]
Hence too the occupation of these posts by senators and their method
of appointment. In 11 B.C. Augustus nominated _curatores aquarum_
with the consent of the Senate (_ex consensu senatus, ex senatus
auctoritate_);[2009] the _curatores operum publicorum_ and _viarum_ were
perhaps nominated in the same way, and the _curatores_ of the Tiber were
in Tiberius’ reign appointed by lot.[2010]

(iii.) _The Procurators._—The quasi-magisterial position of the occupants
of the higher imperial posts could not be reflected in the lower grades
of office. So far as the detailed _ministeria principatus_[2011] were
concerned, the Princeps adopted the analogy of the Roman house, not of
the Roman state, and employed either general agents (_procuratores_)
or assistants designated by the secretarial or other duty which they
performed (_ab epistulis_, _a rationibus_, etc.). There was always a
distinction between the two classes, which was still preserved now
that they had become official. The agent of domestic life might indeed
approximate to the condition of a mere bailiff, and might be a slave; but
the necessity for representing the absent _dominus_ in courts of law had
made it convenient that the procurator should be a free man; and the idea
of agency, usually of general agency (_procuratio omnium rerum_),[2012]
was closely associated with the word. On the other hand, the slaves and
freedmen of the household who copied and kept accounts, were not agents;
and, in accordance with this distinction, the officials of the Principate
who bear such titles as _ab epistulis_, _a libellis_, _a rationibus_, are
not spoken of as procurators, although one of these posts might rise to
the dignity of a procuratorship, as that _a rationibus_ did.

Although from the point of view of functions the two classes must be kept
distinct, from that of qualification they may be discussed together.
In both we observe the tendency for the household to become a bureau,
for the freedman and slave to give place to the Roman knight. Tiberius’
household consisted mainly of freedmen,[2013] and their influence reached
its zenith in the reign of Claudius. An Emperor who sought popularity
might, like Vitellius, transfer the _ministeria_ of the Principate to
Roman knights;[2014] but no comprehensive attempt seems to have been
made to reorganise the bureaucracy on this footing until the time of
Hadrian.[2015] Henceforth the higher grades were held as a rule by
knights, only the lower being possessed indifferently by equites or
freedmen.[2016] The procuratorship was the patent of equestrian nobility
(_equestris nobilitas_),[2017] and we have seen that titles were finally
devised to express the differences in procuratorial rank.[2018] The civil
service now became closely connected with the army, and the occupants of
civil posts were mainly retired officers, men who had held at least one
of the three positions in the equestrian service,[2019] and who, after
the second century, had generally filled every grade before they took the
procuratorship.[2020] This militarising of the administrative service is
one of the most curious features of the Principate. It gave that service
its precision, its rigidity, its tendency to work as a smooth machine
almost independently of personal control. This tendency was a blessing
in so far as it was calculated to diminish the influence due to the
idiosyncrasies of the Princeps, or of any individual holder of office;
but one cannot help suspecting that a great deal of the administrative
tyranny, which darkened the closing years of the Principate and weakened
the Empire, was due to the ineradicable habits of routine inspired by a
military life, and that the Greek or Graeco-Asiatic freedman, although
a more corrupt, was, on the whole, a more capable administrator. The
military supply was not, however, altogether sufficient, and from the
time of Hadrian a civil career was also open, which gave a chance to the
aspiring lawyer.

Theoretically the procurator’s duties were those of mere agency, and
he had little discretionary authority and no general official power.
Tiberius’ emphatic statement that his procurator’s business was merely
to manage the Emperor’s slaves and personal property[2021] is echoed in
the language of the _Digest_, which tells us that the duties of these
servants of the Emperor were strictly defined, that they were accountable
to their master for the use made of the finances or property under their
care, that they could not give, sell, or transfer it, and that “careful
management” was the limit of their power.[2022] It was only when they
kept within these bounds that their acts had all the authority of
those of the Princeps himself.[2023] But the extending spheres of their
operations rendered it impossible for these limits to be rigorously
preserved. Claudius asked and obtained that his procurators should be
permitted jurisdiction within their own financial departments[2024]—an
almost necessary result of the fact that in the provinces (and especially
in those under senatorial management) there was no convenient court
of arbitration to decide when money was or was not owing to the
Princeps.[2025] The consent of the Princeps, also, to the procurator’s
acts must eventually have meant the consent of the chief bureau at Rome;
for, in spite of the extraordinary capacity for personal government
possessed by the Roman Emperors, the fiscal system was too complicated
for every detail to reach their ears.

The chief duties of the procurators were financial, and most of
these agents can be summed up under the title _procuratores fisci_.
A number of titles are met with which clearly have reference to the
central department at Rome. Such are _procurator summarum_ found in an
inscription of Nero’s time and borne by a freedman,[2026] _procuratores
rationum summarum_,[2027] _rationalis summae rei_,[2028] _dispensator_
or _dispensator summarum_,[2029] and _vilicus summarum_.[2030] The
titles belong to different epochs, and it is difficult to establish
their precise import. It is generally agreed that from the time of
Claudius the title _a rationibus_ was reserved for the chief controller
of the _fiscus_. After the reign of Hadrian this post was reserved
for equites,[2031] and the members of the central bureau had a higher
standing than the financial agents in the provinces. The title
_procurator rationum summarum_, which belongs to the second century,
denotes some highly placed official connected with this central chest;
but, as it does not seem to be identical with the title _a rationibus_,
it has been thought to represent a subordinate controller perhaps
instituted by Marcus Aurelius.[2032] The title _rationalis_, which was
often identical with _procurator_,[2033] seems at some period within the
third century to have replaced _a rationibus_ as the designation of the
chief officer of the _fiscus_.[2034]

Amongst provincial procurators we may enumerate first those who were
confined to the imperial provinces. The procurator here occupied the
position which the quaestor held in the public provinces; he was the
chief officer of the provincial _fiscus_, collected the taxes due
to it, and managed the disbursement of its funds. There was also a
treasury connected with the military station in the province (_fiscus
castrensis_), and at the head of it a _procurator castrensis_, who
superintended the payments made to the soldiers,[2035] and military
expenses in general. Other procurators were common to all the provinces;
for even those that were “public” paid certain dues to the Emperor.[2036]
Such were lapsed legacies and the goods of the condemned (_bona caduca_
and _damnatorum_), after the _fiscus_ had asserted its claim to these
revenues,[2037] and the taxes owed by Roman citizens everywhere, such
as the _vicesima hereditatum_ and the _centesima rerum venalium_. But
the public provinces owed more direct dues to the Princeps as well. Thus
Africa, a corn-supplying but not an imperial province, was brought into
the closest relation with his _cura annonae_, and even the most peaceful
districts must have defrayed the expense of the necessary military
protection, and surrendered certain revenues to be collected by imperial
officials.

Common, too, to all the provinces were the agents who managed
the imperial estates (_procuratores patrimonii_ or _patrimonii
privati_).[2038] We have already noticed that after the time of Severus
a distinction was drawn between the _res privata_ and the _patrimonium_
of the Emperor.[2039] From this time onward the _procurator rerum
privatarum_ is distinct from the _procurator patrimonii_.[2040]

The non-financial procurators, who were actually governors of districts,
will be discussed when we are dealing with the organisation of the
provinces.

The tenure of office by a procurator was indefinite, and depended on the
imperial pleasure. Technically their posts expired when the Princeps who
had appointed them died,[2041] and the renewal of their office by his
successor, although it must have been the rule, was treated as a new
appointment. The posts were well paid and procurators bore the titles
_trecenarius_, _ducenarius_, _centenarius_, and _sexagenarius_, according
as their salaries varied from 300,000 to 60,000 sesterces. The salaries
of the procurators at Rome were probably higher than those belonging to
the same departments in Italy and in the provinces. Thus the _procuratio
rationis privatae_ was probably in Rome a _trecenaria_, in the provinces
a _ducenaria_, in Italy, where it would be merely a branch of the
central office, a _centenaria procuratio_.[2042] Promotion seems to have
been determined chiefly by merit, and one of the strong points of the
system was that there was no mechanical system of advancement. It was
possible for a secretary, who had never been a procurator proper, to be
appointed to a praefecture,[2043] but, as a rule, several procuratorships
were passed through before this summit of equestrian ambition was
attained.[2044]

(iv.) _Personal Assistants._—The secretariate of the Principate was,
as we have seen, but the business side of the organisation of a Roman
household, but so rapidly did the importance and official aspect of
these posts develop that already by Nero’s reign a Roman noble, who kept
assistants with such titles as _ab epistulis_ and _a libellis_, might be
suspected of treasonable designs.[2045] These secretaryships became, in
fact though not in law, great offices of state. They required more highly
trained ability than most of the procuratorships, and, as they brought
their holders into close relations with the Princeps, the influence and
the power of patronage which they conferred must have been enormous.

The official _ab epistulis_ put into shape all the decisions of the
Princeps which took the form of letters, so far as these were not written
personally by the Princeps himself. The answers to the _consultationes_
of officials, to the despatches of generals and provincial governors, or
to deputations from foreign communities, together with the nomination of
officials and officers and the conferment of privileges, passed through
his hands.[2046]

The official _a libellis_ drew up the answers to petitions (_preces_,
_libelli_)[2047] made by private individuals to the Emperor. The
answer was generally given in a short _subscriptio_ appended to the
document.[2048] The framing of such replies required considerable legal
knowledge; hence it is not surprising to find that jurists like Papinian
and Ulpian held this post.

The official _a cognitionibus_ was the adviser of the Emperor on legal
points, which were settled by imperial decree. The points on which
advice was given were perhaps wholly those of civil jurisdiction,
and were probably such as did not need to come before the imperial
_consilium_.[2049] The office was in existence at the beginning of the
third century,[2050] but is thought to have been subsequently merged in
that _a libellis_.[2051]

The official _a memoria_ is first mentioned about the time of the Emperor
Caracalla. His function was probably to put into form and reduce to
writing (often by dictation to a secretary)[2052] such speeches and
verbal decisions of the Emperor as did not fall under the competence of
the other officials.

(v.) _The Consilium._—The _consilium_ of the Princeps[2053] was merely
a renewed manifestation of that eternal principle of Roman public
life which directed that a magistrate should seek advisers. A council
was necessary for public confidence, but an imperial _consilium_ was
originally no part of the constitution of the Principate. Tiberius
imitated Augustus in seeking advice before coming to a decision on
important matters;[2054] yet when he sat as a high court of criminal
jurisdiction, his board of assessors could be described as consisting
of a “few friends.”[2055] The board may have become more determinate in
succeeding reigns, but the first Princeps whom we hear of as giving it
a definite organisation was Hadrian. That Emperor, we are told, when
he held a court of justice, summoned as his advisers jurisconsults
approved by the Senate.[2056] It is only a _judicial_ council that is
here described, and there is nothing to show that these legal experts
were necessarily consulted on administrative matters. The basis,
however, was laid for a permanent council of state, and the _consiliarii
Augusti_ of this period became a definite and salaried class.[2057]
They included both senators and equites,[2058] and some bore the title
_jurisperiti_.[2059] Others may not have been gifted with special
knowledge of the law, and may have been employed in cases where general
ability or experience may have been of more value than juristic training.
Actual jurisdiction was not, however, the only occasion on which legal
knowledge was indispensable in an adviser. The help of the jurist had to
be sought in the framing of the imperial _constitutiones_,[2060] and we
are told that for this purpose Severus Alexander was assisted by twenty
_jurisperiti_ out of a _consilium_ numbering seventy in all.[2061] A
difference of personnel for different branches of administration is
easily comprehensible, for it is improbable that the Emperor needed
to summon all his councillors on every occasion on which he took
advice.[2062] The mode of consultation was wholly informal and depended
on the discretion of the Princeps. Augustus in the exercise of his
jurisdiction distributed voting tablets (_tabellae_) to his councillors,
on which they could inscribe acquittal or condemnation or a modified
verdict.[2063] We cannot imagine that the votes were reckoned as in the
jury system. The _tabellae_ were for the enlightenment of the Princeps,
and he may have decided according to the weight of the names of those
who handed them in. Nero, we are told, took opinions on paper, and,
after reading them, gave his own judgment as though it were that of the
majority of his advisers.[2064] Under Severus Alexander opinions were
given verbally and taken down in short-hand.[2065]

We have already shown that it is probable that the imperial _consilium_
in its developed form was employed by the praefect of the praetorian
guard when he gave judgment _vice_ the Princeps.[2066]

CHAPTER XI

ITALY AND THE PROVINCES UNDER THE PRINCIPATE

§ 1. _The Organisation of Italy_

The chief feature of the organisation of Italy during the early
Principate was the completion of the efforts made during the later
Republic at incorporating its towns with Rome. The unity aimed at was
chiefly that of jurisdiction, but we have no evidence of the steps
which Augustus took to perfect the system of judicial centralisation,
which had been devised at the close of the Republic.[2067] At the same
time this Emperor adopted a device which, though its full details and
effects are unknown, seemed to foreshadow the later principle of a close
administrative unification of Italy with the capital. He divided the
peninsula, exclusive of the immediate territory of Rome, into eleven
regions (_regiones_).[2068] The immediate purpose contemplated by this
division is unknown; but it laid the basis for subsequent distributions
of many branches of Italian administration. The public domains, taxes
paid by Roman citizens such as the _vicesima hereditatum_, and the
results of the census, were organised or calculated by regions.[2069]
They were employed, therefore, for work which necessarily fell on the
central government, and this organisation so far implied no infringement
on the communal autonomy of the towns. Such infringement came as a
necessary result of the influence of the personality of the Princeps,
which finally dominated Italy as effectually as it controlled Rome. But
its coming was very gradual· The final change may be illustrated by
the disappearance of the municipal _comitia_, the limitation of local
jurisdiction, the loss of an independent system of local finance, and
the control ultimately assumed by the central government of the actual
administration of many of the Italian states.

Of these changes, the downfall of the _comitia_ is perhaps less
remarkable than their continuance for so long a period after the
assemblies had ceased to be a reality at Rome. A Latin colony in the time
of Domitian still elects its magistrates at a _comitia curiata_,[2070]
and the transference of this principle to Spain shows its prevalence at
the time in Italy. The paucity of inscriptions of the early Principate
which speak of elections by the only alternative body, the local Senate,
is remarkable, and there are clear indications of the survival of the
principle of popular election until the time of Antoninus Pius.[2071] It
doubtless retained its hold on Italy as late as it did on the western
provinces; its disappearance from the whole municipal sphere was the
result of a new system of creating magistrates, the characteristics of
which will be traced when we are dealing with the provinces of this
period.[2072] The elective power of the assemblies no doubt survived all
their administrative functions. The tendency even of the early Principate
was to confine these to the local Senates, which were accounted more
responsible bodies, and were far better instruments of the central
controlling power of Rome.

The limitation of the local courts of law cannot be fully illustrated,
but it is to some extent connected with the establishment of high
individual authorities for jurisdiction in Italy, which begins with
Hadrian. That Emperor divided Italy into four great circuits, and placed
each of them under a _consularis_.[2073] These magistrates were replaced
under Marcus Aurelius by _juridici_[2074] of praetorian rank, whose
purely civil jurisdiction was finally concerned with that portion of
Italy which was separated from the _urbica dioecesis_, the sphere of
the praetor’s competence.[2075] These officials are mentioned only in
connexion with extraordinary jurisdiction concerned with trusts, the
nomination of guardians,[2076] or questions of administrative law, such
as a controversy concerning the qualification for the decurionate.[2077]
But, as extraordinary jurisdiction was gaining the upper hand of the _jus
ordinarium_, and as such administrative questions would at an earlier
period have been settled by the municipalities themselves,[2078] the
powers of the _juridici_ may be regarded as a very real limitation of
those of the local magistrates and senates. We have already seen that
all the higher criminal jurisdiction of these towns had disappeared.
Within the limit of a hundred miles from Rome such cognisance belonged
to the praefect of the city, outside this limit to the praefect of the
guard.[2079]

The financial difficulties under which many of the Italian towns
laboured, invited a further system of imperial control. This took the
form of the institution of _curatores rei publicae_, of senatorial or
equestrian rank, whose existence is traceable from the close of the
first century A.D., and who were given by the Princeps as extraordinary
commissioners to reinvigorate the financial life of poverty-stricken
municipalities.[2080]

But an even more vigorous control was impending, which was to bring Italy
nearer to the condition of a province. The extraordinary commissioners
known as _correctores_ (διορθωταί), whom the Principate often gave to
free cities or districts in the provinces,[2081] were finally transferred
to Italy.[2082] When its municipalities were placed under this tutelage,
there was little more than a formal difference between their condition
and that of the subject towns, and nothing but a more regular system
of administration and the imposition of direct taxation was wanted to
change Italy into a province. Both these changes were effected under
the rule of Diocletian. Italy was, it is true, not divided into
_provinciae_, but its districts were placed under regularly-appointed
_correctores_, and its lands supplied revenues to the imperial court
and to Rome. This climax of centralisation was probably the inevitable
result of the imperial system and the external circumstances of the
time. To the Princeps Italian and provincial problems were the same;
Italy was not always the country in which the Emperor established his
permanent residence, and, as the onset of the barbarians threatened even
the Italian frontier, there was no possible reason why Italy should
not pay its quota to the general taxation. But economic and social
evils may have contributed to the imperial encroachments on Italian
administration. The weaknesses which led to imperial control may have
been those which the Emperors sought to cure. These were poverty and
depopulation, and how earnestly they were grappled with may be seen by
a glance at the system of state support known as the _alimentarium_.
The leading idea of this institution is the endowment of a state or
district with a fund which should give partial support to children, and
by this means encourage production and relieve the responsibilities of
parents or guardians. Such charitable efforts had, at an early period,
been made by individuals;[2083] and from the reign of Nerva the state,
as represented by the Princeps, took up the enterprise. Nerva’s example
was followed by Trajan,[2084] who extended and organised the system, and
similar efforts were made by Hadrian, Antoninus Pius, Marcus Aurelius,
and Severus Alexander.[2085] The form usually taken by the endowment was
an advance by the Princeps of funds which were deposited on good landed
security at moderate interest, 5 or 2½ per cent. From this interest a
certain number of boys and girls were to be supported, by the gift either
of a certain amount of corn or of a sum of money—twelve, sixteen, or
twenty sesterces—per month. This support was guaranteed until the boys
had attained their eighteenth and the girls their fourteenth year.[2086]
The details of this organisation were supervised in each locality by a
_quaestor alimentorum_, while the general control of the funds over a
large district was usually entrusted to the curators of the roads[2087]
which ran through that domain, who sometimes bore the title _praefectus_,
sometimes that of _curator alimentorum_.[2088] This wise method of
charitable relief, which inspired an interest in agriculture while it
relieved poverty and encouraged the growth of population, continued
in force until the close of the Principate, and the _praefecti_,
who administered this department, can be traced till the time of
Diocletian.[2089]

§ 2. _The Organisation of the Provinces_

The imperial problem of the later Republic—the task of finding a
frontier—occupied the unceasing energy of the early Principes, and in
this, as in similar cases in the history of the world, delimitation
involved extension. Sometimes the views as to the proper boundary
altered, and advance was at times succeeded by retrogression. Thus
Augustus sought the Elbe only to fall back on the Rhine, and Trajan
adopted against the great eastern power a heroic policy of annexation
which did not commend itself to his successor. In one instance, too—that
of Britain—a forward movement was made which can scarcely be explained
as the search for a scientific frontier. But, on the whole, the slow and
ordered progress was one that sought not territories, but boundaries,
and the movement necessitated expansion, whether it took the form of
the annexation of the wild districts to the south of the Danube, or the
gradual absorption of the kingdoms and principalities which intervened
between the old Asiatic provinces and the Euphrates or the African
dominions and the sea. The Danube, the Rhine, and the German Ocean; the
Euphrates and the Syrian Desert; the Ethiopian kingdoms, the Sahara, and
the Atlantic, were the limits within which the Principate was to strive
to make the best of the means left by the victorious Republic for the
government of the world. The Republic had indeed laid a solid foundation
for ordered rule, and although we are accustomed to think of the Roman
Empire chiefly in connexion with the three peaceful centuries of the
Principate, it should not be forgotten that the work of the latter was
chiefly the introduction, not of original ideas, but of those slight but
decisive modifications which are sufficient to change a clumsy into a
workable machine. A more effective, although far from perfect, system of
military defence, a greater division of authority amongst the organs of
government, a more careful estimate of provincial burdens, a competent
although perhaps over-rigid civil service,—these were the immediate gifts
of the Principate to the world. The results were comfort and peace; but
a comfort that was too often divested of even local patriotism, and a
peace that was singularly devoid of intellectual ideals. A universal
citizenship was also amongst the hidden treasures of the Empire, but it
was a gift conferred in proportion to its valuelessness, and the Princeps
whose edict was to make the world a city was a calculating spendthrift
bent only on increasing the taxes of his subjects. But, since the golden
mean of Empire had yet to be found, we cannot blame the Principate for
doing too much that which the Republic did too little. Every reaction is
violent, and in this instance at least over-government was intended to
be in the interest of the subject. The subject acclaimed it, at least in
its initial stages,[2090] although his descendant was to find it a burden
in comparison with which the yoke of the Republican proconsul would have
seemed a trifle.

Augustus with characteristic modesty and discretion reserved his strength
for the most difficult of the provinces—those on the frontier which
demanded military occupation and unusual vigilance in administration—and
thus created the distinction between Caesar’s provinces and those which
were public (_publicae_) and were entrusted to the care of the Senate and
people.[2091] There were occasional interchanges of provinces between the
co-rulers. Thus Achaea and Macedonia were relinquished by the Senate
in A.D. 15, but restored to it in A.D. 44,[2092] and Marcus Aurelius
took over or surrendered districts according to the necessities of
war.[2093] But in the middle of the Principate the Senate possessed but
eleven,[2094] the Princeps twenty-one under regular governors,[2095] nine
administered by procurators,[2096] one, Egypt, ruled by an equestrian
praefect.

As in the Republic, the only true provincial _civitates_ were those
which were _stipendiariae_. The free or free and allied communities
were still technically exempt from the governor’s control. But the
free cities were lessened in number and restricted in privileges. The
supposed abuse of its self-governing powers by a _foederata civitas_
might cause the treaty to be rescinded and the state to be brought under
direct provincial rule;[2097] while, even when _libertas_ was retained,
its merits might be suspected, and the state might be placed under the
financial tutelage of _curatores_ (λογισταί) or the administrative care
of _correctores_ (διορθωταί) appointed by the Princeps.[2098] It is also
certain that _libertas_ no longer conferred immunity from taxation. We
know that, of the cities of Asia which are described as tributary in the
reign of Tiberius,[2099] two, Magnesia ad Sipylum and Apollonidea, were
_liberae_,[2100] while Byzantium, which had been in alliance with Rome
during the Republic, also paid tribute in the reign of Claudius.[2101]
This change, which is specially noticeable in the East, has been with
great probability attributed to Pompeius. While granting or renewing
charters and privileges, he reserved to Rome the right to tax,[2102]
and thus dissociated the ideas of _libertas_ and _immunitas_, which had
hitherto been inseparable. The new principle was so fully accepted by
the Principate that even the possession of Latin rights could not have
exempted a state from taxation,[2103] and the immunity of cities became
more of an exceptional political privilege. Sometimes it took the form of
exemption only from a special tax, such as the freedom from the port dues
of Illyricum claimed by the state Tyras in Moesia.[2104] Less frequently
it was a freedom from all external burdens, such as that enjoyed, on
account of its historical associations, by the town of Ilium.[2105]
But the favourite means of granting immunity to a state was to confer
the right known as the _jus Italicum_—a right which implied that the
members of the city were, like the inhabitants of Italy, in quiritarian
ownership of their soil, and, therefore, exempt from the land-tax. This
right generally accompanied the honorary designation of the town as a
_colonia_, although the title might be conferred without the right,[2106]
or be accompanied by only a partial immunity.[2107] Many states in
Lusitania, Gaul, Germany, Syria, and Phoenicia were made _coloniae_ and
granted the _jus Italicum_.[2108]

The two great problems in taxation which confronted the early Principate
were the formation of an estimate of the resources of the Empire, and
the apportionment of burdens by reference to the capacities of the
various countries. Both tasks were undertaken vigorously by Augustus.
To both belong his budget of the resources of the Empire,[2109] the
geographical works undertaken under the auspices of Agrippa,[2110] and
the comprehensive assessments made in various provinces. The right of
making such assessments belonged to the Princeps,[2111] and seems not
to have been limited to his own provinces, although it is to these that
our definite information chiefly refers. The first known census of the
kind was that undertaken in the three Gauls in 27 B.C.,[2112] which we
find renewed in the years 14, 17, and 61 A.D.[2113] There is a trace of
an Augustan census in Spain,[2114] and a similar task was undertaken in
Syria.[2115] When these great preliminary estimates were over, provision
had to be made for a periodical revision of the assessment. This was
done under imperial control and for each province separately. A special
imperial decree was issued, and under it the commissioner (_censor_,
_censitor_, _ad census accipiendos_)[2116] made a renewed estimate, with
the assistance of delegates, in the shape of equestrian officers and
procurators, for the special communities or districts in the provinces
subject to the census. Originally the chief officials were of senatorial
rank, but after the end of the second century equestrian procurators
were generally entrusted with the census[2117]—a circumstance which is
probably to be accounted for by the fact that in the course of years the
duty of making out the returns had become more automatic and therefore
simpler.[2118] It is not known whether there were fixed dates for the
regular recurrence of the census in each province;[2119] but there were
taxes, such as the _tributum capitis_ in Syria, paid only by people of an
age that fitted them for labour,[2120] which would have demanded renewed
registration at somewhat short intervals; and in Egypt there was a cycle
of fourteen years for the payment at least of the poll-tax, which goes
back to the time of Tiberius and perhaps of Augustus.[2121] The careful
nature of the estimate of the land-tax is shown by the official form of
the schedule of returns (_forma censualis_), which has been preserved.
This specified the community and _pagus_ in which the farm was situated,
the names of two neighbours, and the character of the land assessed.[2122]

The taxes were either imposts on the land (_tributum soli_) or on the
person (_tributum capitis_). The land-tax was in most provinces paid
either in money or grain, more usually in the former; but in certain
minor districts it was delivered wholly, or almost wholly, in kind.
Cyrene sent its famous silphium, the Sanni in Pontus wax, and the Frisii
of Germany the skins of oxen.[2123] The personal tax might be one on
professions, income, or movable property. It was rarely a poll-tax pure
and simple, although this is found in Egypt[2124] as a relic of the
Ptolemaic organisation; amongst the Jews, when the δίδραχμον had been
diverted from the Jewish temple to that of Jupiter Capitolinus;[2125]
in Britain,[2126] where it would have been difficult to collect any
other personal tax from the mass of the people; and in the tiny island
of Tenos,[2127] whose poverty probably forbade any other method of
assessment. It may, however, have existed in many provinces by the side
of other personal taxes as a burden imposed on those whose property fell
below a certain rating.

The collection of the chief imperial taxes was now direct, since the
system of _decumae_ with the accompanying tax-farmers (_decumani_) had
been abolished.[2128] But there seem to have been different degrees of
directness in the method. A distinction is drawn between the _stipendium_
of the public and the _tributum_ of Caesar’s provinces,[2129] and as this
distinction can scarcely be one of a method of taxation, it must be one
based on the method of collection. Perhaps in the public provinces the
taxes were still collected by the states themselves and paid by them to
the quaestor, while in the imperial provinces the procurator came into
direct contact with the tax-payer. But much was still left to the efforts
of private companies, and the abolition of the _decumani_ was perhaps the
sole infringement made on the vast operations of the _publicani_. The
extent to which the system of contracting out was still employed may be
illustrated by the facts that “companies of Roman knights” are said still
to have gathered in the _pecuniae vectigales_—by which the _portoria_
are chiefly meant—and other _publici fructus_—the revenues from mines,
salt-works, quarries, and the like—during the reign of Tiberius,[2130]
that in the reign of Nero severe measures had to be taken to repress the
exactions of the _publicani_,[2131] and that these state middlemen have
a title devoted to them in the _Digest_ of Justinian.[2132] Even a tax
which fell to an imperial treasury, such as the _vicesima hereditatum_,
was collected by contractors in the reign of Trajan.[2133] The contracts
were no longer leased by a central authority in Rome, but by the official
who controlled the department with which the tax was concerned. In most
cases it was an imperial procurator who leased the tax, and perhaps
to some extent supervised its collection.[2134] The direct taxes were
paid to the quaestor in the public provinces, and in the imperial were
collected by the procurators, of whose functions and operations we have
already spoken.[2135] In connexion with the fiscus of each province there
was a bureau (_tabularium_)[2136] in which the assessments were kept.

The method of government in the public provinces underwent considerable
modifications, but suffered little formal alteration. The tenure
of office was still annual, and the regulation that a five years’
interval must elapse between home and foreign command,[2137] which had
been neglected by Caesar,[2138] was revived by Augustus,[2139] but
considerations of fitness and another method of determining seniority
considerably interfered with the application of the latter principle.
Some qualified candidates were set aside by the Senate either on its own
motion or by the advice of the Emperor,[2140] and the _jus liberorum_
admitted some to the _sortitio_ in preference to others.[2141] All the
governors of public provinces were now called proconsuls, whether they
had previously held the consulship or not,[2142] in order to distinguish
them from the legates of Caesar’s provinces, who all bore the title _pro
praetore_. The two greatest of the public provinces, Asia and Africa,
were always given to _consulares_, while the other governments might be
held by men of praetorian rank. A definite allowance (_salarium_) was
now given to the governor,[2143] which must have removed some of his
temptation to extortion. Each proconsul was attended by lictors and had
the other _insignia_ of his rank. But the _proconsulare imperium_ was in
many respects a mere shadow of its former self. Its possessor did not
wear the sword or the military dress,[2144] to show that his command
was not a military one, and in deference to the full _proconsulare
imperium_ possessed by the Princeps. It was an exception to this rule
that until the time of the Emperor Gaius the legion in Africa was under
the command of the governor of that province;[2145] but even here, where
the employment of active military power was needed, the appointment of
the proconsul was thrown practically on the Princeps.[2146] The governor
was also hampered by assessors[2147] more carefully selected than the
_legati_ of Republican times. The _legati proconsulis pro praetore_,
three of whom were assigned to the higher class of provinces, such as
Asia and Africa, and one to the lower, such as Sicily and Baetica,
although nominally selected by the proconsuls themselves, had to be
approved by the Princeps; and the fact that they bear a title which
suggests the _imperium_ shows, that although they were still delegates
of the governor, their jurisdiction was more definite and independent
in the dioceses assigned them than it had been in Republican times.
Even the quaestor now bears the title _quaestor pro praetore_,[2148]
and exercises, besides his financial functions, a definite judicial
charge—the kind of jurisdiction which was in the hands of the curule
aedile at Rome.[2149] We have already shown the possibilities of imperial
interference with the administration and jurisdiction of proconsular
governors through the presence of procurators in their provinces, and
through the tendencies which led to the Emperor’s becoming a court of
appeal for the whole provincial world.[2150]

In his own provinces Caesar was the only possessor of the _proconsulate
imperium_.[2151] Hence his governors were merely legates (_legati
Caesaris pro praetore_). They were not, however, regarded as mere
delegates. They exercised an independent jurisdiction, which they
could delegate to their subordinates—a proceeding of which the mere
mandatary is incapable.[2152] Their military command was delegated, but
some at least of them exercised the power of life and death over the
soldiers in their province.[2153] All the legates wore the military
dress and sword,[2154] since all governed provinces in which legions
were quartered. But even their military discretion was to some extent
limited by the fact that the legions now had their own regular commanders
(_legati legionum_), while their civil authority was lessened by the
circumstances that the financial affairs of the province were chiefly
in the hands of a procurator responsible to the Princeps or to a
bureau, and that in many provinces after the time of Hadrian and the
Antonines we find a special legate appointed for jurisdiction (_legatus
juridicus_),[2155] who, though inferior to the governor in rank, was a
delegate not of him but of the Princeps.

One of the secrets of the better administration of Caesar’s provinces
was the length of time during which one of these legates might be kept
in a single province. Thus in Tiberius’ reign Sabinus governed Moesia
for twenty and Silius Gaul for seven years,[2156] while somewhat later
Galba was in Spain for eight.[2157] In every case the tenure of such
commands depended on the Emperor’s discretion,[2158] and the holders drew
fixed salaries from the imperial treasury.[2159] To the higher class of
provinces, such as Syria, _consulares_ were sent; those of a lower class,
such as Aquitania and Galatia, might be governed by men of praetorian
rank.

The sphere of imperial rule included a class of dependencies which
had not yet become, or were not thought worthy of being, organised
as definite provinces and placed under senatorial legates. They were
governed by personal agents of Caesar, who were in this case known as
_procuratores Caesaris pro legato_.[2160] Some of these districts, such
as the three Alpine provinces, were comparatively small: but others, such
as the Mauretanias, Thrace, Judaea,[2161] were of considerable size, and
the presence of mere procurators in such countries must be accounted
for by the fact that they were not important military stations but
defended by some great command in a neighbouring province. The procurator
was, indeed, sometimes under the partial control of the neighbouring
imperial legate; thus Judaea was in some way attached to the larger
province of Syria, and Pilate was deposed from office by Vitellius its
governor.[2162] But even in this case the procurator is the delegate,
not of the governor, but of the Princeps. Thus, when St. Paul appealed
against the jurisdiction of Festus, the appeal was made directly to
Caesar.

Anomalous methods of government were adopted for the two greatest
military and strategic positions in the Empire—Germany, which was divided
into an upper and a lower province, and Egypt. The two strips of land
west of the Rhine, which contained the garrisons not merely of the river
frontier but of Gaul, were not placed under the ordinary provincial
legates. The two consular _legati_, not of the separate legions, but of
the armies, were themselves the governors of the districts; they bore the
title _pro praetore_,[2163] and, except when the supreme command over
Gaul and the Germanies was assumed by a colleague of the Emperor,[2164]
were not under the control of any governor of the neighbouring Gallic
provinces. Egypt, in a sense a private domain of the Princeps,[2165]
and, as the key of land and sea, guarded even from the approach of a
man of senatorial rank,[2166] was entrusted to an equestrian praefect
(_praefectus Aegypti_), who exercised the reality without the name of the
_imperium_,[2167] wielded all the powers of a governor,[2168] and had an
army under his control.

The Romanisation of the provinces was still effected by the insensible
channels which had been operative during the Republic—social intercourse,
commerce, and the forms of the provincial edict. But more conscious
efforts in the same direction were made in the Western world. The
foundation of municipalities of an Italian type, the encouragement given
to a Latin-speaking foreigner to find a career in the imperial service,
the state support given to Roman systems of education—all tended to make
portions of provinces, such as Gaul and Spain, centres of as pure a
Latinity as could be found in Italy itself. Even when the full _civitas_
was not at once conceded, preparation for it was made by the grant of
Latin rights which were now conferred on whole provinces, such as Sicily,
the Maritime Alps, and Spain,[2169] and made the dwellers in these
regions participants in all the private rights of Roman law. The general
tendency was to elevate the West at the expense of the East, or rather
perhaps to decline the struggle with Hellenic civilisation, and to rest
content with Romanising the barbarism of the lands that encircled Italy.
In spite of this, the greatest triumphs of the legal genius were to be
found in the East; the gift for theory seemed to be still peculiarly a
property of the Greek or Oriental mind, and it was Asia, Phoenicia, and
Syria that produced the names of Gaius, Ulpian, and Papinian. Such men
had the signal advantage of comparing and even practising two perfected
systems; for until the beginning of the third century, Graeco-Oriental
forms were the common law of the Eastern half of the Empire, and the
edict of Caracalla, which by the grant of the _civitas_ implied the
future currency of Roman forms, must have created something like a legal
revolution in this part of Rome’s dominions.[2170]

The omnipresence of Roman law was a fitting consequence and symbol of
the even, harmonious, uneventful working of provincial life, and of the
uniform machinery which was eliminating national characteristics and
reducing all provinces to the same level of excellence or decadence. But,
in spite of the highly organised character of provincial administration,
it was the city-state (_civitas_) that was still the unit, and the
character of its public life remained at all times the test of the
effectiveness of the Roman system.

Amidst the brilliant variety of the urban life of the Empire, some
uniformity had been secured even during the days of the Republic by
Rome’s leaning to aristocratic types of organisation. But a slight
modification of existing forms of constitution was all that was
needed to bring the local machinery into harmony with that of the
central government, and there was no effort made to create a uniform
type of administration or to regard the provincial state as a mere
municipality adapted only to serve the purposes of the imperial system.
The Principate ushers in this latter tendency, but at first it is very
gradual. In its initial stages it manifests itself in the light of a
paternal interest, whether on the part of governors or Emperors, in
the affairs of local corporations, in minute regulations as to the
responsibilities of magistrates, the use of public funds, and the care of
public property.[2171] Perhaps for a time such measures were beneficial;
certainly for nearly two centuries, in spite of the fact that there is
here and there observable a tendency to shirk municipal office as a
burden,[2172] the vitality of the towns, fostered by peace and the large
revenues of commerce, was strong enough to resist the enervating effects
of this interference, and hundreds of inscriptions show us a wealth,
a splendour, a generosity in endowment, and a thirst for municipal
fame, that seem a sufficient reward for the untiring exertions of an
anxious government. But this government finally came to lean on what it
had fostered. The same tendencies, still very imperfectly understood,
which changed professions into corporations, trades into guilds, and
made even military service a hereditary burden, fastened on the towns,
and the government sought to find in them a class which would be solely
responsible for local and imperial duties. This was found ultimately
in the local Senate—the order of _decuriones_ or _curiales_—which had
always formed the pivot of municipal administration controlled or
created by Rome, but which now tended to become sharply severed from the
other classes in the communities, and, while solely endowed with the
privileges of office, held these privileges at a tenure which it would
gladly have surrendered. The legal texts of our period do not yet show
the crushed and broken aristocracy of a later date; but they reveal the
beginning of the movement which was to lead men to regard membership of
the Senate as certain ruin, and to flee from office as though it were
the plague. In the first place, the local magistracy was ceasing to be a
stepping-stone to the Senate. There is a tendency to recruit the order
through an _adlectio_ of otherwise unqualified members,[2173] a tendency
which reveals an anxiety to preserve the maximum numbers of the order.
This admission is effected by the board itself, and prepares us for the
practice of the later Empire by which the order recruits itself from all
qualified persons who are bound to serve. In another way also the earlier
relation of magistrate to senate was being reversed. The principle of the
earlier law, in accordance with which the previous possession of office
is a necessary qualification for the _curia_,[2174] has been changed for
one in accordance with which none but a decurion can be a magistrate.
A definite grade of municipal nobility has been evolved, an official
caste has been created, and the decurions are sharply severed from the
Plebs.[2175]

Each class has its burdens, and, though the severest of these were
ultimately to fall on the _curiales_, the municipal law of the _Digest_
calls on all members of the communes to do their duties to their
state and to the Empire. Each class has its appropriate duties; to
the decurions belong the higher branches of administration, but every
category of citizens has its _munera congruentia_.[2176] The legal
writers divide the burdens of public life into two categories. The
_munera personalia_ are those that demand the activity of the person;
the _munera patrimonii_ those that are incumbent on wealth.[2177] To the
former belong the functions of public officials such as those concerned
with the finances of the state, with the inspection of the market,
roads, buildings and aqueducts, with the maintenance of the peace or the
representation of the interests of the city. But municipal duties by no
means exhausted the category of such burdens. The state finally saddled
the municipalities with the returns for the census and the raising of
the revenue in corn or money, and made the collectors responsible for
any deficit.[2178] The cost of the imperial transport and post had also
become a municipal burden.[2179] These last obligations introduce us to
the idea of the patrimonial burdens, which existed wherever by law or
custom expense was incurred by the individual undertaking them. There
were few in which such expenditure was not incurred, and the policy of
the dying Principate was to lay heavy imposts on capital, which increased
in proportion to the diminution in number of the wealthier classes. When
exertion was met with this reward it tended to relax, and a decaying
agriculture and an enfeebled commerce were the results of the oppression
of the government. Whatever the primary cause of these evils was,
whether military, social, or economic, they were doubtless aggravated
by the relentless system of imperial administration, which marshalled
citizens as though they were soldiers, treated all classes as the fitting
instruments of official life, and regarded the subject as existing for
the Empire rather than the Empire for the subject.

§ 3. _The Worship of the Emperor_

One result of the discipline which we have described was doubtless to
create a strong, though not a warm, imperial sentiment. A gentler bond of
union amongst the provinces and of attachment to the imperial house was
to be found in the carefully cultivated world-religion which expressed
itself in the form of Caesar-worship.

The cult of the Emperor, although stimulated and encouraged by the
imperial government, was by no means a purely artificial product. Had
it offended against Roman or Italian sentiment, it would have been
strangled in its birth; and had it met with no genuine response from the
subject nations, coercion[2180] and rewards would probably have given it
merely a precarious and transitory existence. The worship assumed two
forms, neither of which was a strain on the religious beliefs of the
age. In its application to the living Emperor, it was merely a reverence
permitted to his spiritual personality, that _numen_ or _genius_, the
abstract duplicate of man, the ever-present guardian-angel to whom, as
realised in the self, the Roman had often drunk or prayed. If to the
mind of the barbarian the genius and the self were still more truly
one, the conception of the new worship was simpler but by no means less
strong. The reverence paid to the dead Caesar was a still more natural
effort of grateful piety, not unwelcome to a cultured society which
accepted Euhemeristic explanations of the gods, and indigenous at least
amongst the Greek-speaking and oriental portions of the Empire. In the
provinces, too, all the sordid aspects of imperial humanity were removed;
to the provincial mind Caesar was a potent and unseen power, a distant
incarnation of wisdom and order, a being whose sway was far wider than
that of any local god, whose ordinances penetrated to the ends of the
earth, and in whose hands the safety and happiness of the human race
were set.[2181] The idealism which to-day makes of a king something more
than a man, had, in a less fastidious religious environment, made of
the Roman Emperor a god, and even in the more prosaic West, in countries
such as Gaul or Spain or Britain, where Caesar-worship required a certain
amount of cultivation, we must suppose an undercurrent of genuine belief.

The first step taken in the inauguration of the new worship was a
happy one. It was a graceful act to honour a predecessor, who had
been the ruler of the Roman world, and might be regarded as a martyr
in its cause, and Octavian permitted the consecration of a temple to
_divus Julius_,[2182] who was regarded, from a sentimental if not from
a legal point of view, as the founder of the new dynasty. His own
worship the Emperor prohibited in Italy, and he declined an altar in
the _curia_.[2183] But in the year 20 B.C. a temple dedicated to him
under the name of Augustus rose at Panium in Palestine,[2184] and in
the next year the form of dedication to “Roma and Augustus,” which
associated his _numen_ with that of the city, and whose modesty secured
his consent,[2185] began to spread through the provinces. A temple with
this rite sprang up at Pergamum,[2186] and in 12 B.C. a similar worship,
which replaced that of the native sun-god Lug, was established for the
Gallic nobles at Lugdunum.[2187] An attempt was also made to consolidate
the infant organisation of the new province of Germany by establishing
an altar at the Oppidum Ubiorum (Köln) as the centre of its religious
life.[2188] Rome itself could not wholly be deprived of a cult that
was becoming universal, and in 8 B.C. a recognition of the divinity of
Augustus was permitted in the only form which he would allow during his
lifetime. His _genius_ was associated with the household gods or _Lares_
in the worship of the _vici_ of the capital.[2189] The movement spread
through Italy. The old _magistri vicorum_ become the _magistri Larum_,
and soon gain the title _magistri Augustales_. They are found in every
part of Italy, and beyond it in Sardinia, Narbonensis, Spain, Dacia,
and even Egypt.[2190] On the death of the first Princeps his complete
deification was accorded by the Senate,[2191] and the recognition was
followed by the permission to erect temples in the provinces,[2192]
while private as well as public initiative fostered the cult of _divus
Augustus_. The precedent set in the cases of the first two emperors
had firmly established the practice of posthumous deification, and its
denial to a Princeps was almost equivalent to the condemnation of his
reign.[2193] Although the merits of Claudius as a divinity might be
questioned, and Vespasian, with sceptical tolerance, regarded his own
deification as an inevitable consequence of his position,[2194] yet by
the close of the second century the virtues of the Antonines had made the
worship of the deified Emperor a more genuine cult than ever, and a man
was regarded as impious who had not some image of Marcus Aurelius in his
house.[2195] This worship of the Caesars had two lasting effects on the
social and political life of the Roman, Italian, and provincial worlds.

(1) It established a priestly aristocracy. On the death and deification
of Augustus a college of _Sodales Augustales_ was created for Rome,
consisting of twenty-one nobles, and containing in its list members of
the imperial house.[2196] _Flamines Augustales_ held the same dignified
position in their provinces or in their native towns, and were drawn
from the aristocracies of the states. The _Flamen_ of the worship of
Roma and Augustus, that had its centre at Narbo, wore the _praetexta_,
was attended by a lictor, had a front seat at games, and the right of
taking part in the deliberations of the local Senate. His wife, the
_Flaminica_, was clothed on festal days in white or purple, and, like the
_Flaminica Dialis_ at Rome, might not be compelled to take an oath.[2197]
The lower and middle classes were not forgotten in the distribution of
these religious honours. From the _magistri Augustales_, whom we have
already mentioned, developed an _ordo Augustalium_, which existed before
the death of Augustus both in Italy and the provinces, and the cult
with which it was associated was partly of spontaneous origin, partly
cultivated by the imperial government, and may in some cases have been
founded by the municipal towns themselves. The _Augustales_ were not
priests, like the _Flamines_ and _Sacerdotes_, but merely an order with
certain _insignia_—the _praetexta_, the _fasces_, the _tribunal_—which
they displayed in the performance of their official duties, and they have
been compared to magistrates without secular magisterial functions.[2198]
The form which the organisation assumed was the appointment of _sexviri_
or _seviri_, probably by the senate of the municipal town; after the year
of service they pass into the order of _Augustales_.[2199] The order was
composed mainly of freedmen—of a class, that is, whose birth excluded
them from the public offices of their states, but who, forming as they
did a large portion of the trading population, contributed, perhaps more
than any other, to the economic vitality of the towns. The worship of
Augustus, by giving them _insignia_ and certain proud moments in which
they appeared to dazzling effect before the public eye, compensated to
some extent for the loss of privileges which the law withheld.

(2) Caesar-worship was the only force that gave a kind of representative
life to the provinces. Great provincial diets (_concilia_, _communia_,
κοινά) made their appearance both in the Eastern and Western world. Asia
had already dedicated temples to kings, proconsuls, and to the city of
Rome;[2200] and in the Hellenic world the national assemblies which
survived the Roman conquest may have suggested, or may even at times
have been continued in, these new amphictyonic gatherings. The favour
shown by the imperial government to this proof of loyalty soon led the
West to follow the example of the East, and the establishment of the
worship of Roma and Augustus at Lugdunum, by creating a _concilium_ for
the three Gauls, was the prototype of a similar organisation in other
European provinces. Eventually every province of the Empire seems to
have evolved a diet of some kind, and even Britain, the least organised
of Roman dependencies, possessed at Colchester a temple to the deified
Claudius.[2201] The high-priests of the cult (_sacerdotes provinciae_,
ἀρχιερεῖς) were chosen annually from the most distinguished families,
and delegates (_legati_, σύνεδροι) from the various districts or states,
which made up the province, were despatched to the yearly meetings
(_concilia_, κοινά). These delegates elected the high-priests and voted
the sums required for the purposes of the cult. But they felt themselves
to be representatives of the province; they voiced its nationality and
represented its collective interests as no other power did, and it would
have been impossible except by force to limit their utterances to purely
religious questions. This compulsion the government did not attempt. It
permitted, perhaps encouraged, these delegates to make representations
about the condition of the province,[2202] and even to utter complaints
about the conduct of Roman officials.[2203] It is a pity that the
imperial government did not do even more to preserve the fast-waning
sense of nationality; but the value of what it did is proved by the
fact that these assemblies and the dignified orders which they created
survived into the Christian Empire. Titles such as Asiarch, Syriarch,
Phoenicarch, derived from the high-priesthood of Caesar’s cult, were
respected by Constantine’s legislation,[2204] and survived like ghosts of
the pagan past to haunt for a time the life of a new œcumenical church
which, through a fuller faith and a higher allegiance, had effected its
triumph over the old.

APPENDIX I

THE TWO ASSEMBLIES OF THE TRIBES

The existence of a _comitia tributa populi_, as distinct from the
_concilium plebis tributim_, was first demonstrated by Mommsen (_Römische
Forschungen, Die patricisch-plebejischen Tributcomitien der Republik_).
The chief lines of evidence on which the proof of the existence of this
parliament rests are as follows:—

(i.) We have a series of passages which prove the continued distinction
of the Populus and the Plebs and of patrician and plebeian magistrates,
and which show that these magistrates could only summon the bodies of
which they were respectively the representatives. These passages are:—

Festus p. 293 “Scita plebei appellantur ea, quae plebs suo suffragio sine
patribus jussit, plebeio magistratu rogante.”

ib. p. 330 “Scitum populi (est, quod eum magistra)tus patricius (rogavit
populusque suis suf)fragis jussit.... Plebes autem est (populus
universus) praeter patricios.”

ib. p. 233 “cum plebes sine patri(bus a suo magistratu rogatur) quod
plebes scivit, plebi(scitum est: plebs enim cum) appellatur, patrum
com(munio excluditur).”

(ii.) There are abundant evidences of the early existence of a _comitia_
of the tribes:—

(_a_) The law of the Twelve Tables (451 B.C.) ordained, with respect
to jurisdiction, “de capite civis nisi per maximum comitiatum ... ne
ferunto” (Cic. _de Leg._ iii. 4, 11). The mention of the “greatest
_comitia_” clearly implies the existence of a lesser one with judicial
powers; and as this is not likely to have been the _comitia curiata_ of
the period, it can hardly be any other assembly than the _comitia_ of the
tribes.

(_b_) The quaestors were first elected by the people in 447 B.C. (Tac.
_Ann._ xi 22), and in later times their appointment was made by a
_comitia_ of the tribes (Cic. _ad Fam._ vii 30).

(_c_) The first legislative act of the people gathered _tributim_ is
attributed to the year 357 B.C. (Liv. vii. 16 (consul) “legem novo
exemplo ad Sutrium in castris tributim de vicensima eorum, qui manu
mitterentur, tulit”).

The _comitia tributa populi_ was probably created between 471 B.C., the
date at which the Plebs began to meet _tributim_, and 451, the date at
which the existence of such an assembly is hinted at in the Twelve Tables.

(iii.) In the developed Republic we find an assembly meeting by tribes—

(_a_) which is presided over by magistrates of the people, e.g. by the
consuls Manlius (Liv. vii. 16) and T. Quinctius Crispinus (Frontinus _de
Aquaed._ 129), by the dictator Caesar (Cic. _ad Fam._ vii. 30), and by P.
Clodius as curule aedile (Cic. _pro Sest._ 44, 95; _ad Q. fr._ 2, 3);

(_b_) which elects magistrates of the people, e.g. the quaestors (Cic.
_ad Fam._ vii. 30 “comitiis quaestoriis institutis ... ille (Caesar) ...
qui comitiis tributis esset auspicatus”) and the curule aediles (Gell.
vii. 9 “[Cn. Flavium] pro tribu aedilem curulem renuntiaverunt”);

(_c_) which legislates. This legislative power is shown by the _lex
Quinctia de aquaeductibus_ of 9 B.C. (Frontinus _de Aquaed._ 129);

(_d_) and exercises judicial power. This judicial power is shown in the
trial of Milo for _vis_ in 56 B.C. (Cic. _pro Sest._ 44, 95; _ad Q. fr._
2, 3). The prosecutor was a curule aedile, and the trial took place in
the Forum (“ejectus de rostris Clodius,” l.c. § 2).

Perhaps the most striking demonstration of the existence of this assembly
is contained in the prescription to the _lex Quinctia de aquaeductibus_
(Frontinus l.c.), which runs as follows:—

“T. Quinctius Crispinus consul populum jure rogavit populusque jure
scivit in foro pro rostris aedis divi Julii pr(idie) [k.] Julias. Tribus
Sergia principium fuit, pro tribu Sex.... L. f. Virro [primus scivit].”

Here we find an assembly of the Populus, presided over by a magistrate of
the people, meeting in the Forum and voting by tribes. It can, therefore,
be none other than a _comitia tributa populi_.

Although the formal difference between this assembly and the _concilium
plebis tributim_ was great—the one being summoned by magistrates of the
people, the other by plebeian magistrates; the one electing to popular,
the other to plebeian offices; the one passing _leges_, the other
_plebiscita_—the material difference between the two bodies was small.
This consisted in the exclusion of Patricians from plebeian gatherings.
When the consul or praetor summoned the tribes, the members of the few
patrician families could attend; when the tribune summoned the tribes,
these members were bound to keep away.

APPENDIX II

A LIMITATION OF THE TRIBUNATE IN THE REIGN OF NERO

Tacitus in the _Annals_ (xiii. 28, 2), in describing certain limitations
on the powers of tribunes and aediles which were introduced in the year
56 A.D., mentions one respecting the tribunate, the nature of which has
never yet been explained. He expresses it in the words “prohibiti tribuni
jus praetorum et consulum praeripere, aut vocare ex Italia cum quibus
lege agi posset”—“the tribunes were forbidden to usurp the authority of
praetors and consuls, or to summon out of Italy persons liable to legal
proceedings.” It seems generally to be agreed that the _aut_ here is
conjunctive, not disjunctive, i.e. that there is the closest connexion
between “jus praetorum et consulum praeripere” and “vocare ex Italia,”
and it seems that this must be the case; for Tacitus, vague as his
references are in this chapter, could never have referred to anything so
indeterminate as a “usurpation of the authority of praetors and consuls,”
without some specification of the sphere or extent of this usurpation.
I shall, therefore, assume that the second clause is explanatory of
the first, and that the “summons from Italy” in some way defines the
“usurpation”—although, as will be seen, this assumption is by no means
necessary to my main argument, which will centre round the expression
“vocare ex Italia.”

The remarks of commentators on this passage have been for the most part
confined to expressions of bewilderment at the constitutional anomalies
it displays. They make the inevitable comment that the tribune had
properly no right of _vocatio_, although he sometimes exercised it (Varro
ap. Gell. xiii. 12), and that, if even he possessed this right, it ought
not to have been exercised outside the city walls. The only positive fact
to be elicited from such statements is that the _vocatio_ here referred
to is some kind of personal summons; who is summoned or for what purpose
are questions which they seem to regard as incapable of an answer. The
opinion of an eminent writer on Roman Law, who attempts to push his
analysis deeper than this, exhibits only the desperate nature of the
means which have to be applied to elicit a meaning from the passage.
Karlowa (_Röm. Rechtsgesch._ i. p. 530) suggests that the tribunes had
allowed accused persons to escape summonses in criminal trials which were
to take place before the Senate—the initiation of such trials belonging
properly only to the consuls and praetors. He does not seem to feel the
obstacles that beset the path to this conclusion. He has to take _lege
agere_ in the unusual sense of the legal fulfilment of a penal law; he
does not show why Tacitus should have written “vocare ex Italia” in
place of the more natural “vocare a senatu”; he fails to remember that
the tribunician intercession in a criminal trial before the Senate was,
even in the reign of Tiberius, becoming a power of pardon vested in the
Princeps, and that its use by an ordinary tribune might bring death to
the rash interceder (Tac. _Ann._ vi. 47; cf. xvi 26).

To discover the true sense of the passage we must seek for some sphere in
which the tribunician veto continued unimpaired during the Principate;
but, before doing this, we must ask whether the words used by Tacitus
offer any suggestions of such a sphere. It is possible to translate
the words “vocare ex Italia” as meaning “to summon from any part of
Italy,” “to summon, i.e., from Rome and Italy”; but I venture to think
that _ex Italia_ excludes the idea of Rome, and that the meaning of the
words is “to summon from a municipal town of Italy to Rome.” On what
grounds such a summons might be made is shown by the words “cum quibus
lege agi posset.” The sphere of the summons is civil jurisdiction in
the _municipia_ as divided between the Roman and the local authorities
by statute on the settlement which gradually followed the close of the
social war—a settlement known to us chiefly through the _lex Rubria_.
The whole sentence, if literally though somewhat clumsily translated,
would state that “the tribunes were prohibited from summoning litigants
from an Italian town in cases where a civil action at law would have been
possible in that town.”

On this hypothesis, the sphere of the tribune’s power referred to is
the very familiar one of the veto on appeal in civil jurisdiction.
How frequent the _appellatio_ to the tribunes in matters of civil
jurisdiction was during the later Republic is shown by the fact that, out
of the four private orations of Cicero, two—those for Quinctius and for
Tullius—record the use of this appeal (Cic. _pro Quinct._ 7, 29; _pro
Tullio_ 16, 38, 39); and that this appellate cognisance continued during
the Principate is shown by the obvious interpretation of the well-known
lines of Juvenal (vii. 228)—

Rara tamen merces quae cognitione tribuni
Non egeat—

words which almost certainly mean “it is seldom that such _merces_ does
not lead to a court of appeal.”

It may seem strange that the veto of these purely city magistrates should
be thought of in connexion with municipal jurisdiction, until we remember
the anomalous nature of the settlement made after the social war. By
that settlement jurisdiction in Italy is a mere annexe to jurisdiction
in Rome; technically it is jurisdiction in Rome, as is shown by Gaius
(iv. 103-105), who recognises no interval between the jurisdiction of
law _intra primum miliarium_ and the jurisdiction of the _imperium_ in
the provinces. The praetor’s formula and the praetor’s writ run through
the whole of Italy, although the praetor himself cannot quit Rome for
more than ten days during his year of office (Cic. _Phil._ ii. 13, 31);
and, if the appellate power of the tribune was to be preserved, it had to
be regarded as coextensive with the _imperium_, of the magistrate whom
he vetoed. The intercession of the tribune in municipal jurisdiction
required no creation by law; it was still the veto of one city magistrate
by another within the walls of Rome. If even the tribune’s ordinances
and his _coercitio_ were valid without the walls, it could be explained
in accordance with the prevailing fiction; but the supposition of such
an extension is not absolutely necessary, as the following pictures of
what probably took place in a conflict between the central and the local
courts will show.

Suppose Aulus Agerius brings an action against Numerius Negidius in the
town of Arpinum. The local magistrate decides to take the case. Numerius
Negidius denies the competence of the court and appeals; to whom? In the
first instance, probably to the colleague of the local magistrate, for
the _lex Rubria_ (c. xx.) forbids the intercession only in the case where
the local court is admittedly competent. This colleague pronounces the
veto, the _judicium_ is quashed; all that the local magistrate can now do
is to compel the parties to enter into a _vadimonium_ to appear before
the praetor, and the case moves to Rome. But supposing, when it has got
there, that the praetor decides that it was really within the competence
of the municipal magistrate and issues an order that it shall go back?
Now Numerius appeals to the tribune. The veto is issued and, if the case
is to be tried at all, the praetor is bound to take it.

We can also imagine a case with the same preliminaries in which Numerius
appeals to the colleague of the local magistrate against the competence
of the local court, but in which this colleague declines to interfere.
Is Numerius left stranded? Unquestionably there must have been in such
a case a further appeal to Rome, whether to the praetor or perhaps, in
this case, to his higher colleague the consul. But the praetor or consul
now decides against Numerius. The appeal is made to the tribune, and the
decree of the consul or praetor may be quashed. The case, if it is to be
tried at all, must be tried at Rome.

In both these instances the tribune pronounces his veto within the city,
and yet in both, if his decision is improper, his position is one of
“vocare ex Italia cum quibus lege agi posset.” In both cases it is not
a true use of magisterial _vocatio_, and thus one of the difficulties
discovered by commentators in this passage is removed; it is simply an
illustration of the positive effects of a negative power. Just as the
tribune can by a persistent veto force the praetor to alter his formula
(Cic. _Acad. Prior._ ii. 30, 97; _pro Tullio_ 16, 38), so by a persistent
denial of the praetor’s orders to the local magistrate he can force the
praetor to judge. We do not know the method by which the positive effect
of the veto was in this case secured, but it is clear that some means
must have been provided for having a municipal action tried at Rome when
the municipal court had been declared incompetent.

But, apart from the procedure springing from these rigid rules of
competence, there is some evidence of a discretionary power of what is
called _Romam revocatio_, which was exercised and abused by magistrates
towards the close of the Republic. The _Fragmentum Atestinum_ (perhaps
a part of the _lex Rubria_) enacts (l. 16 sq.) with reference to
municipal jurisdiction—“ejus rei pequn[_iaeve_] quo magis privato Romae
revocatio sit ... _ex hac lege nihilum rogatur_,” i.e. this law does
not permit (or imply) a _revocatio_ to Rome in the specified cases. We
do not know what magistrate effected this _revocatio_. With respect to
criminal jurisdiction in the provinces, it was the duty of the consuls
(Cic. _in Verr._ i. 33, 84); and, if they exercised this power in civil
jurisdiction as well, the _jus consulum praeripere_ of our passage
may refer to tribunician interference with this consular prerogative.
It may be worth noting that Plutarch (_Caes._ 4) associates the power
with the tribunes; his narrative of this trial of P. Antonius is almost
unquestionably wrong, but it may be taken to show that in his belief
(i.e. in a belief current during the Principate) the tribunes had
something to do with summoning cases to Rome.

Hitherto we have been dealing with the praetor and the _judicia
ordinaria_. Is it possible that the tribune also interfered with the
extraordinary jurisdiction created daring the Principate, and thus
with the judicial powers of the consuls? The consular jurisdiction
in _fideicommissa_ had been given to praetors by Claudius (_Dig._ 1,
2, 2, 32), but not the whole of it. Quintilian shows that in greater
matters it still belonged to the former (_Inst. Or._ iii. 6, 70 “non
debes apud praetorem petere fideicommissum sed apud consules, major
enim praetoria cognitione summa est”). If the consuls tried the case
when the _fideicommissum_ was very large and the praetors when it was
smaller, it is not altogether impossible that the municipal magistrates
might have tried local cases when the sum, which was the subject of
the trust, was insignificant It is thus possible that questions of
the competence of local and Roman magistrates may have cropped up in
reference to this question; although I should prefer to explain the _jus
consulum praeripere_ of Tacitus on the already mentioned hypotheses of
some consular right of _vocatio_ or _revocatio_ in matters of ordinary
jurisdiction.

Much must remain obscure; we cannot get at the details of the procedure.
All that we can do is to show that there is evidence for the tribune’s
interference with the rights of magistrates in matters of municipal
jurisdiction, and to suggest methods of interference. Nor can we
determine the precise limitations of his authority introduced by the
change of A.D. 56. But it clearly took from the tribune the final
decision as to when a civil case should be summoned from a municipal
town to Rome. Either his _intercessio_ in this matter of municipal
jurisdiction was abolished, or his veto was made purely suspensory.
In this very chapter of Tacitus we find that the enforcement of the
tribunician _multa_ is subjected to the decision of the consul.
Similarly, with reference to the power which we have discussed, the urban
praetor or the consul may have been declared absolutely competent to
decide, after cognisance, when a case should be tried in the local courts
and when it should be reserved for the tribunals at Rome.

FOOTNOTES

[1] _Pagus_ (connected etymologically with πήγνυμι, _pago_, _pango_)
implies the idea of “foundation” or “settlement.”

[2] Cf. Liv. ii. 62 “Incendiis deinde non villarum modo, sed etiam
vicorum, quibus frequenter habitabatur, Sabini exciti.”

[3] So Servius Tullius is said, according to one account, to have divided
the territory of Rome into twenty-six _pagi_. _Pagus_ is δῆμος in Greek
(Festus p. 72), but this proves little as to its origin; it is the
_pagus_ as part of a state that is thus translated. The δῆμος or δᾶμος in
Greece had often been (as in Elis) a self-existent community.

[4] Liv. ii. 16. Yet even here the _Claudia gens_ is represented as
expelled from a _civitas_.

[5] The ancients derived Palatine from the _balare_ or _palare_ of cattle
(Festus p. 220) or from the shepherd’s god Pales (Solinus i. 15). It is
perhaps derived from the root _pa_ (_pasco_). See O. Gilbert _Geschichte
u. Topographie der Stadt Rom in Altertum_ i. p. 17.

[6] Tac. _Ann._ xii. 24.

[7] This tendency is best exhibited in Richter’s map showing the
extension of Rome (Baumeister _Denkmäler_ art. “Rom” Karte v.).

[8] Festus pp. 340, 341. See Gilbert _Topographie_ i. pp. 38, 162.

[9] Varro _L.L._ v. 45 ff.

[10] i.e. in the four city tribes—_Palatina_ (Palatine, Cermalus,
Velia), _Esquilina_ (Oppius, Cispius, Fagutal), _Suburana_ or _Sucusana_
(Coelius, Subura), _Collina_ (Quirinalis, Viminalis—a region outside the
old Septimontium). See Belot _Histoire des Chevaliers Romains_ i. p. 401.

[11] The Sabine origin of the Tities rested perhaps on the Sabine _sacra_
of the _sodales Titii_ (Tac. _Ann._ i. 54). Cf. the Thracian origin
ascribed to the Eumolpidae at Athens on account of the character of their
cult.

[12] Cic. _de Rep._ ii. 8, 14 “populumque et suo et Tatii nomine et
Lucumonis, qui Romuli socius in Sabino proelio occiderat, in tribus tris
... discripserat.”

[13] e.g. the manner in which the Ionic tribe-names were imposed at
Athens after their primitive signification had been lost.

[14] Cf. Niese _Grundriss der röm. Gesch._ pp. 20 sq.

[15] Cincius ap. Festum p. 241 “Patricios Cincius ait in libro de
comitiis eos appellari solitos, qui nunc ingenui vocentur.” Cf. Liv. x.
8 (300 B.C.; from the speech of Decius Mus) § 9 “Semper ista audita sunt
eadem, penes vos auspicia esse, vos solos gentem habere, vos solos justum
imperium et auspicium domi militiaeque”; § 10 “en unquam fando audistis,
patricios primo esse factos non de coelo demissos sed qui patrem ciere
possent, id est nihil ultra quam ingenuos?”

[16] Mr. Strachan-Davidson remarks (Smith _Dict. of Antiq._ ii. p. 354)
that, on the evolution of the rights of the plebeians, these too should
have been _patricii_, but that the word _patricius_ survived as a “token
of an arrested development.”

[17] _Plebs_ is connected with the root which appears in _compleo_,
_impleo_, πλῆυος.

[18] Liv. i. 28 “populum omnem Albanum Romam traducere in animo est,
civitatem dare plebi, primores in patres legere.” Dionysius (ii. 35)
represents the people of Caenina and Antemnae as being, after their
subjection, enrolled εἰς φυλὰς καὶ φράτρας.

[19] Cf. Dionysius’ account of Romulus’ institution of clientship (ii.
9 παρακαταθήκας δὲ ἔδωκε τοῖς πατρικίοις τοὺς δημοτικούς, ἐπίτρεψας
ἑκάστῳ ... ὃν αὐτὸς ἐβούλετο νέμειν προστάτην ... πατρωνείαν ὀνομάσας τὴν
προστασίαν).

[20] The _jus commercii_ has been read into the relations of Rome with
Carthage as depicted in Polybius’ second treaty [Polyb. iii. 24, 12 ἐν
Σικελίᾳ, ἧς Καρχηδόνιοι ἐπάρχουσι, καὶ ἐν Καρχηδόνι πάντα καὶ ποιείτω καὶ
πωλείτω (the Roman) ὅσα καὶ τῷ πολίτῃ (the Carthaginian) ἔξεστιν]. But
jurisdiction here may have been the work of some international court, and
the _jus commercii_, without the _jus exulandi_, would hardly have made a
foreign immigrant a citizen of Rome.

[21] Cicero shows that there was a controversy whether _applicatio_
was consistent with _exilium_ (_de Orat._ i. 39, 177), “Quid? quod
item in centumvirali judicio certatum esse accepimus, qui Romam in
exilium venisset, cui Romae exulare jus esset, si se ad aliquem quasi
patronum applicavisset intestatoque esset mortuus, nonne in ea causa jus
applicationis, obscurum sane et ignotum, patefactum in judicio atque
illustratum est a patrono?”

[22] Zonaras vii. 15. P. Clodius first tried this method; when it
was opposed he resorted to the artifice of adoption. Courtly writers
imagined a _transitio_ for the plebeian Octavii, Suet. _Aug._ 2 “Ea gens
a Tarquinio Prisco rege inter minores gentes adlecta ... mox a Servio
Tullio in patricias transducta, procedente tempore ad plebem se contulit.”

[23] Liv. ii. 16 (504 B.C.) “Attus Clausus (driven out from Regillum)
magna clientium comitatus manu Romam transfugit. His civitas data agerque
trans Anienem ... Appius inter patres (i.e. the Senate) lectus haud ita
multo post in principum dignationem pervenit.” Cf. Suet. _Tib._ 1.

[24] Savigny _Recht des Besitzes_ (7th ed.) p. 202. On the general
condition of the client see Ihering _Geist des röm. Rechts_ i. p. 237.

[25] Dionys. ii. 9, 10.

[26] ἐξηγεῖσθαι τὰ δίκαια ... δίκας λαγχάνειν ... τοῖς ἐγκαλοῦσιν ὑπέχειν
(Dionys. ii. 10). If representation in the civil courts is meant, it must
have resembled that of the _paterfamilias_, who sues in his own right,
for procuratory was unknown in early Roman procedure (Just. _Inst._ iv.
10 “cum olim in usu fuisset alterius nomine agere non posse”).

[27] Verg. _Aen._ vi. 609 “fraus innexa clienti.” Cf. Servius ad loc.

[28] Gell. v. 13 “Conveniebat ... ex moribus populi Romani primum juxta
parentes locum tenere pupillos debere, fidei tutelaeque nostrae creditos;
secundum eos proximum locum clientes habere, qui sese itidem in fidem
patrociniumque nostrum dediderunt.” The third place was filled by
_hospites_, the fourth by _cognati_ and _adfines_.

[29] Liv. ii. 56.

[30] Suet. _Claud._ 24 “(Claudius) Appium Caecum censorem (312 B.C.) ...
libertinorum filios in senatum allegisse docuit; ignarus temporibus Appii
(312-280 B.C.) et deinceps aliquamdiu ‘libertinos’ dictos, non ipsos qui
manu emitterentur, sed ingenuos ex his procreates.”

[31] Plut. _Mar._ 5.

[32] Festus p. 94 “gentilis dicitur ex eodem genere ortus et (?) is qui
simili nomine appellatur.”

[33] p. 5.

[34] Cic. _Top._ 6, 29 “Gentiles sunt inter se, qui eodem nomine sunt;
qui ab ingenuis oriundi sunt; quorum majorum nemo servitutem servivit;
qui capite non sunt deminuti.”

[35] The test is illustrated by a controversy between the patrician
Claudii and the plebeian Claudii Marcelli, Cic. _de Orat._ i. 39, 176
“Quid? qua de re inter Marcellos et Claudios patricios centumviri
judicarunt, cum Marcelli ab liberti filio stirpe, Claudii patricii
ejusdem hominis hereditatem gente ad se rediisse dicerent, nonne in ea
causa fuit oratoribus de toto stirpis et gentilitatis jure dicendum.”
Suetonius (_Tib._ 1) says of the clan of the Claudii Marcelli, as
compared with their patrician namesakes, “nec potentia minor nec
dignitate.”

[36] Liv. x. 8, quoted p. 5.

[37] p. 5.

[38] Cic. _in Verr._ i. 45, 115 “Minucius quidam mortuus est ante istum
(Verrem) praetorem; ejus testamentum erat nullum. Lege hereditas ad
gentem Minuciam veniebat”; _de Leg._ ii. 22, 55 “Jam tanta religio est
sepulchrorum, ut extra sacra et gentem inferri fas negent esse; idque
apud majores nostros A. Torquatus in gente Popilia judicavit.”

[39] The theory of the artificial origin of the _gens_ is based on the
symmetrical figures given by tradition. The full numbers of the early
_gentes_ are given as 300; these are symmetrically divided, ten into
each of the thirty _curiae_, as the _curiae_ are divided into the three
original tribes. Hence Niebuhr (_Hist. Rome_ i. p. 319) says, “The
numerical scale of the _gentes_ is an irrefragable proof that they were
not more ancient than the constitution, but corporations formed by a
legislator in harmony with the rest of his scheme.”

[40] Niebuhr op. cit. p. 333; from Laelius Felix (ap. Gell. xv. 27) “Cum
ex generibus hominum suffragium feratur, curiata comitia esse” (_genus_
because the assembly came to include Plebeians, some of whom had no
_gentes_).

[41] Cic. _ad Fam._ ix. 21, 2.

[42] Momms. _Staatsr._ iii. p. 31.

[43] Cic. _de Rep._ ii. 20, 35 “(L. Tarquinius) duplicavit illum
pristinum patrum numerum; et antiquos patres majorum gentium appellavit,
quos priores sententiam rogabat; a se ascitos minorum”; Liv. i. 35
“(Tarquinius) centum in patres legit; qui deinde minorum gentium sunt
appellati.”

[44] p. 3.

[45] The _gentes minores_ are sometimes identified with the _gentes_ of
the last admitted of these tribes, the _Luceres_ (Ortolan _Hist. of Roman
Law_ i. § 33).

[46] Momms. _Hist. of Rome_ bk. i. ch. v.

[47] Liv. i. 30; Dionys. iii. 29.

[48] Dionys. ii. 46.

[49] Liv. iv. 4 “nobilitatem vestram per cooptationem in patres habetis”;
Suet. _Tib._ 1 “gens Claudia in patricios cooptata.” So Servius and Numa
are said to have been transferred by the Populus from the ranks of the
δῆμος to those of the πατρίκιοι.

[50] As is implied in Suet. _Aug._ 2 (quoted p. 7).

[51] Dionys. v. 13.

[52] Liv. ii. 2 “Brutus ad populum tulit ut omnes Tarquiniae gentis
exsules essent”; Varro ap. Non. p. 222 “omnes Tarquinios ejicerent, ne
quam reditionis per gentilitatem spem haberent.”

[53] Suet _Tib._ 1 “Patricia gens Claudia ... orta est ex Regillis,
oppido Sabinorum ... post reges exactos sexto fere anno, in patricias
cooptata. Agrum insuper trans Anienem clientibus, locumque sibi ad
sepulturam sub Capitolio, publice accepit.” Cf. Liv. ii. 16 (cited p. 7).

[54] Dionys. v. 40.

[55] ib. ii. 7.

[56] Cic. _de Rep._ ii. 14, 26.

[57] Momms. _Staatsr._ iii. p. 23.

[58] Varro _R.R._ i. 10, 2; cf. Plin. _H.N._ xix. 4.

[59] Festus p. 53 “Centuriatus ager in ducena jugera definitus, quia
Romulus centenis civibus ducena jugera tribuit.”

[60] It is possible, however, that _manus_ in such expressions is merely
the symbol of power.

[61] “Si adgnatus nec escit gentiles familiam habento.”

[62] Suet. _Caes._ 1, of Caesar’s refusal to divorce Cornelia; as a
consequence he was “uxoris dote, et gentiliciis haereditatibus multatus.”

[63] p. 10.

[64] “Si furiosus escit, ast ei custos nec escit, adgnatum gentiliumque
in eo pecuniaque ejus potestas esto.”

[65] Cic. _pro Domo_ 13, 35.

[66] Suet. _Tib._ 1.

[67] Cic. _Phil._ i. 13, 32.

[68] Maine _Ancient Law_ pp. 6, 27.

[69] Cic. _pro Domo_ 13, 35 “Quas adoptiones (i.e. legal ones) ...
hereditates nominis, pecuniae, sacrorum secutae sunt. Tu ... neque
amissis sacris paternis in haec adoptiva venisti. Ita perturbatis sacris,
contaminatis gentibus, et quam deseruisti et quam polluisti, etc.”; _de
Leg._ ii. 19, 48 “haec jura pontificum auctoritate consecuta sunt, ut ne
morte patris familias sacrorum memoria occideret, iis essent ea adjuncta,
ad quos ejusdem morte pecunia venerit.” The transmission was thus a part
of _jus pontificium_, not of _jus civile_. Cf. Serv. in _Aen._ ii. 156.

[70] Cf. the story of Verginia in Liv. x. 23 (296 B.C.) “Verginiam Auli
filiam patriciam plebeio nuptam L. Volumnio consuli matronae, quod e
patribus enupsisset, sacris arcuerant.” She then founds an altar to
“Pudicitia plebeia,” in imitation of that to “Pudicitia patricia.”

[71] ἀνδρὶ κοινωνὸν ἁπάντων χρημάτων τε καὶ ἱερῶν (Dionys. ii. 25).

[72] Plut. _Qu. Rom._ 30 Διὰ τί τὴν νὺμφην εἰσάγοντες λέγειν κελεύουσιν·
Ὃπου σὺ Γαΐος ἐγὼ Γαΐα;

[73] e.g. a testamentary adoption by a public act in the _comitia calata_.

[74] _Familia_ is etymologically a “household.” Cf. Sanskr. _dhâ_ “to
settle,” _dhâman_ “settlement.”

[75] The original term was, perhaps, _manus_ signifying “power” (see p.
32), but this word came in course of time to be restricted to the control
over the wife who had become a member of the _familia_.

[76] Plutarch (_Rom._ 22) quotes a law of Romulus allowing the divorce of
the wife ἐπὶ φαρμακείᾳ τέκνων ἢ κλειδῶν ὑποβίλῃ καὶ μοιχευθεῖσαν.

[77] Dionys. ii. 15.

[78] This _jus noxae dationis_ first disappears finally in the law of
Justinian (_Inst._ iv. 8, 7; _Dig._ 43, 29, 3, 4). Before its abolition
a modification had been introduced by the rule that, when the child had
acquired an equivalent for the damage he had caused (_quantum damni
dedit_), the owner should be forced to manumit him.

[79] Even by Constantine the sale of new-born children (_sanguinolenti_)
was permitted, but only _propter nimiam paupertatem_ (_Cod._ 4, 43, 2).

[80] “Pater si filium ter venum duuit, filius a patre liber esto.” It has
been thought, however, that by the time of the Twelve Tables the sale had
become merely fictitious.

[81] This _vindicatio filii_ was in later Roman law replaced by a writ
issued by the praetor (_interdictum de liberis exhibendis_), the effects
of which were like that of Habeas Corpus.

[82] Dionys. ii. 26, 27.

[83] Gell. v. 19, 9.

[84] Hadrian punished the killing of a son with deportation (_Dig._ 48,
8, 5); Constantine declared it _parricidium_.

[85] Instances are given in Voigt (_Zwölf Tafeln_ ii 94). M. Fabius Buteo
(223-218 B.C.) put his son to death as a punishment for theft (Oros. iv.
13), and a certain Pontius Aufidianus his daughter for immorality (Val.
Max. vi. 1, 3); there are also instances of banishment inflicted by the
father, presumably under the threat of inflicting the death penalty if
the children returned.

[86] We may cite two instances lying at the very extremes of Republican
history, the semi-mythical one of L. Junius Brutus in 509 (Plut. _Popl._
6, 7), and the historical one of A. Fulvius Nobilior, who in 63 B.C. put
his son to death for partnership in the Catilinarian conspiracy (Sall.
_Cat._ 39).

[87] Modern writers are inclined to reject the appeal made to the _sexus
fragilitas_ by the Roman jurists, and to believe that the original motive
lay in the desire to keep the property of the family together (cf.
Czyhlarz _Inst._ p. 275); but, as this motive did not operate in the case
of sons, it is difficult to see why it should have done so in the case
of the wife or daughters, apart from a belief in the incapability of
women to defend their own claims. For the motive underlying the _tutela
mulierum_ see p. 31.

[88] p. 16.

[89] Ulp. _Reg._ 12, 2 “Lex xii. Tab. prodigum, cui bonis interdictum
est, in curatione jubet esse agnatorum”; cf. Ulp. in _Dig._ 27, 10, 1
“Lege xii. Tab. prodigo interdicitur bonorum suorum administratio.” There
can be no doubt of the antiquity of this interdiction of the “prodigus,”
proceeding as it does from the theory that the property belongs to the
family rather than to its head; but from what authority it proceeded in
the earliest period of Roman history is uncertain.

[90] See the account in Val. Max. v. 8, 2 (p. 23) “adhibito propinquoram
et amicoram consilio.”

[91] Val. Max. ii. 9, 2 “M. Val. Maximus et C. Junius Brutus Bubulcus
censores ... L. Annium senatu moverunt, quod, quam virginem in
matrimonium duxerat, repudiasset, nullo amicorum in consilio adhibito.”
See Greenidge _Infamia in Roman Law_ p. 65.

[92] Dionys. ii. 26, 27.

[93] For the alleged lateness of divorce at Rome, even after the Twelve
Tables had freely permitted it, see Gell. iv. 3 (_Infamia in Roman Law_
p. 65).

[94] _Dig._ i. 6, 9 (Pomponius) “filius familias in publicis causis loco
patris familias habetur, veluti ut magistratum gerat, ut tutor detur.”
Compare the story in Liv. xxiv. 44 (213 B.C.) “Pater filio legatus ad
Suessulam in castra venit”—the consul went to meet him; and the old man
on horseback passed eleven lictors—“ut consul animadvertere proximum
lictorem jussit et is, ut descenderet ex equo, inclamavit, tum demum
desiliens, ‘Experiri,’ inquit, ‘volui, fili, satin’ scires consulem te
esse.” Cf. Gell. ii. 2.

[95] Festus s.v. _Duicensus_ (p. 66) “dicebatur cum altero, id est cum
filio census.”

[96] Probably by a _mancipatio fiduciae causa_, one, i.e., by which he
had formally transferred (_mancipavit_) his body on the condition that it
was not to be seized for a certain time, and that the transfer should be
dissolved (_solutio nexi_) if the debt were paid within this time.

[97] Ulpian Reg. 19, 1; Gaius ii. 15. _Res mancipi_ at a later period
included lands in Italy (with their servitudes), slaves and _quadrupedes
quae dorso collove domantur_. In the expression _familia pecuniaque_,
“familia” probably denotes the slaves. Pierron (_Du sens des mots familia
pecuniaque_) has shown the theory of Ihering and Cuq, that the former
denotes _res mancipi_, the latter _res nec mancipi_, to be untenable.

[98] Plut. _Cato maj._ 3.

[99] Plut. _Cor._ 24.

[100] See the section on the censor.

[101] Paulus in _Dig._ 28, 2, 11 “in suis heredibus evidentius apparet
continuationem dominii eo rem perducere, ut nulla videatur hereditas
fuisse, quasi olim hi domini essent, qui etiam vivo patre quodammodo
domini existimantur.” What the _filius familias_ acquires by the death of
his father is merely _libera bonorum administratio_.

[102] Gell. i. 9 “Tamquam illud fuit anticum consortium, quod jure atque
verbo Romano appellabatur ‘ercto non cito’”; Serv. in _Aen._ viii. 642
“‘citae’ divisae, ut est in jure ‘ercto non cito,’ id est patrimonis vel
hereditate non divisa.”

[103] Gell. xv. 27 “Isdem comitiis, quae ‘calata’ appellari diximus,
et sacrorum detestatio et testamenta fieri solebant. Tria enim genera
testamentorum fuisse accepimus; unum, quod calatis comitiis in populi
contione fieret, alterum in procinctu, cum viri ad proelium faciendum in
aciem vocabantur, tertium per familiae emancipationem, cui aes et libra
adhiberetur”; Gaius ii. 101 “aut calatis comitiis faciebant, quae comitia
bis in anno testamentis faciendis destinata erant; aut in procinctu, id
est, cum belli causa arma sumebant.” Cf. Ulpian (_Reg._ 20, 2) on the
_testamentorum genera tria_.

[104] This testament is never associated with adrogation, although this
took place before the same assembly.

[105] In Gell. (cited n. 1) it is associated with the _sacrorum
detestatio_ (see p. 16), and perhaps this was its main object. The
pontiffs and people had to be satisfied that the _sacra_ would be
continued and the family not become extinct.

[106] See the passages of Gellius, Gaius, and Ulpian, cited n. 1, and
compare Festus p. 225 “procincta classis dicebatur, cum exercitus cinctus
erat Gabino cinctu confestim pugnaturus.” In the second century B.C. we
find some kind of military testament, called by this name, made by Roman
soldiers in Spain (Velleius ii. 5 “facientibus ... omnibus in procinctu
testamenta, velut ad certam mortem eundum foret”).

[107] Gaius ii. 102 “Qui neque calatis comitiis, neque in procinctu
testamentum fecerat, is, si subita morte urguebatur, amico familiam suam,
id est, patrimonium suum mancipio dabat, eumque rogabat, quod cuique post
mortem suam dari vellet.”

[108] Gaius ii. 104 “Familiam pecuniamque tuam endo mandatela tutela
custodelaque mea, quo tu jure testamentum facere possis secundum legem
publicam, hoc aere esto mihi empta.” For _familia pecuniaque_ see p. 24.

[109] The stipulation that it was a trust would still have taken the
patrimony wholly from the testator during the remainder of his life. We
hear nothing about the formal reservation of a life interest.

[110] “Cum nexum faciet mancipiumque, uti lingua nuncupassit ita jus
esto.”

[111] Gaius ii. 104 “Haec ita, ut in his tabulis cerisque scripta sunt,
ita do, ita lego, ita testor, itaque vos, quirites, testimonium mihi
perhibetote.”

[112] Plut. _Comp. Lyc. c. Num._ 4 λέγεται γούν ποτε γυναικὸς εἰπούσης
δίκην ἰδίαν ἐν ἀγορᾷ πέμψαι τὴν σύγκλητον εἰς θεοῦ, πυνθανομένην, τίνος
ἅρα τῇ πόλει σημεῖον εἴη τὸ γεγενημένον.

[113] Such as the _lex Claudia_, which abolished the _legitima tutela
agnatorum_ (Gaius i. 171).

[114] A trace of the old disability survives in the prohibition of
advocacy to women; the praetors declined to grant them a formula on
behalf of others. A certain Carfania (Gaia Afrania) “inverecunde
postulans et magistratum inquietans” is said to have been the occasion of
this rule (Ulp. in _Dig._ 3, 11, 5).

[115] This usage was preserved in the praetor’s edict; he spoke of “qui
quaeve ... capite deminuti deminutaeve esse dicentur” (_Dig._ 4, 5, 2,
1), meaning what the later jurists call _cap. dem. minima_, i.e. loss of
_familia_.

[116] See Eisele “Zur Natur u. Geschichte der capitis deminutio” in
_Beiträge zur Römischen Rechtsgeschichte_ p. 160. He combats the counter
view that _capitis dem._ meant an annihilation of personality. Mommsen
(_Staatsr._ iii. 8) takes this latter view—a natural result of juristic
refinement, but a conception that would have been quite unintelligible to
a primitive community.

[117] Gaius i. 162 “Minima capitis deminutio est, cum et civitas et
libertas retinetur, sed status hominis commutator; quod accidit in his
qui adoptantur, item in his quae coemptionem faciunt, et in his qui
mancipio dantur, quique ex mancipatione manumittuntur.”

[118] Liv. i. 32.

[119] Gell. i. 12, 14; x. 24, 3.

[120] Mommsen (_Staatsr._ iii. 3, n. 2) connects the word with
_populari_. The _magister populi_ (i.e. the dictator) is master of the
infantry host.

[121] Varro ap. Dionys. ii 48. Other views derived it from the Sabine
town Cures (Varro _L.L._ v. 51; Strabo v. 3, 1) or connected it with
_Curia_ (Lange _Röm. Alt._ i. p. 89; Belot _Hist. d. Chev. Rom._ i. p.
312).

[122] Suet. _Jul._ 70.

[123] Capito ap. Gell. i. 20 “Plebes ... in qua gentes civium patriciae
non insunt: plebiscitum ... est ... lex, quam plebes, non populus,
accipit.” Cf. Festus p. 233.

[124] According to the primitive conception private are dependent on
public rights; see p. 31. But the growth of the Plebs, and alliances with
other states, had effected many modifications in this conception.

[125] Nonius, s.v. _plebitas_, p. 101 “Hemina in annalibus, ‘Quicumque
propter plebitatem agro publico ejecti sunt.’” Cf. Liv. iv. 48.

[126] p. 17.

[127] Cic. _de Leg._ ii. 13, 32 (on the question whether auspices were
merely directed to the _utilitas_ of the state, or formed a true method
of divination) “si enim deos esse concedimus ... et eosdem hominum
consulere generi, et posse nobis signa rerum futurarum ostendere; non
video cur esse divinationem negem.”

[128] Cic. _de Div._ ii. 33, 70 (the difficulty of answering for results
may appeal to a _Marsus augur_ but not to a Roman) “non enim sumus
ii nos augures, qui avium reliquorumve signorum observatione futura
dicamus.” Cf. i. 58, 132 “Non habeo ... nauci Marsum augurem, non vicanos
haruspices, non de circo astrologos, non Isiacos conjectores, non
interpretes somniorum. Non enim sunt ii aut scientia aut arte divini.”

[129] See the treatment of the auspices in the section on the magistracy
(p. 163).

[130] Strangely enough the Greek belief in oracular or prophetic power
did not lead to the conception of a priesthood set apart from the people.
But the Greek science of divination, though associated with oracles
and prophecy, did not aim much higher than the Roman. Its object was
generally to win approval for a contemplated course of action.

[131] Cic. _de Leg._ ii. 8, 21 “Quaeque augur injusta, nefasta, vitiosa,
dira defixerit, inrita infectaque sunto; quique non paruerit, capital
esto.”

[132] Serv. ad _Aen._ vi. 190 “auguria aut oblativa sunt, quae non
poscuntur, aut impetrativa, quae optata veniunt.” For the categories of
these two kinds of auspices see the discussion of the auspices in the
section on the magistracy (p. 162).

[133] Liv. vi. 41 “Auspiciis hanc urbem conditam esse, auspiciis bello ac
pace, domi militiaeque omnia geri, quis est qui ignoret?”

[134] This view is most fully expressed in the formalities of the
_interregnum_. See the section which treats of this institution (p. 147).

[135] Cic. _de Div._ i. 16, 28 “Nihil fere quondam majoris rei, nisi
auspicato, ne privatim quidem, gerebatur: quod etiam nunc nuptiarum
auspices declarant, qui, re omissa, nomen tantum tenent.” In i. 17, 31
we have the story of Attus Navius taking auspices by _aves_ in a private
matter. Cf. Liv. vi. 41.

[136] Cic. _de Div._ i. 16, 28 (see last note); Suet. _Claud._ 26; Tac.
_Ann._ xi. 27.

[137] Liv. iv. 2 “Quas quantasque res C. Canuleium adgressum? Conluvionem
gentium, perturbationem auspiciorum publicorum privatorumque adferre.”
Yet this passage has only an indirect reference to the matrimonial
_auspicia_. The argument is that intermarriage would cause the pure
Patriciate to disappear, and with it the general right of taking
_auspicia impetrativa_.

[138] Cic. _de Div._ ii. 36, 76 “a populo auspicia accepta habemus.” The
relation of _auspicia habere_ to the _spectio_ is that the former denotes
the abstract right of questioning the gods, the latter its exercise in
a particular case (Momms. _Staatsr._ i. 89 n. 3). The specification by
the magistrate of the signs which he wished to see was known as _legum
dictio_ (Serv. ad _Aen._ iii. 89; cf. p. 43 n. 2).

[139] A similar confusion was at an earlier period introduced with
reference to the givers of the auspices. They are said to be given by
the people (Cic. _de Div._ ii. 36, 76; p. 39), but the great bulk of the
people (i.e. the Plebs) did not possess them.

[140] p. 3.

[141] Dionys. iv. 14 (Servius Tullius) τὰς καταγραφὰς τῶν στρατιωτῶν καὶ
τὰς εἰσπράξεις τῶν χρημάτων ... οὐκέτι κατὰ τὰς τρεῖς φυλὰς τὰς γενικάς,
ὡς πρότερον, κ.τ.λ. Varro _L.L._ v. 181 “Tributum dictum a tribubus, quod
ea pecunia, quae populo imperata erat, tributim a singulis pro portione
census exigebatur.”

[142] From _legere_, Varro _L.L._ v. 87.

[143] Varro _L.L._ v. 89 “milites quod trium milium primo legio fiebat,
ac singulae tribus Titiensium, Ramnium, Lucerum milia singula militum
mittebant.”

[144] ib. 81 “tribuni militum quod terni tribus tribubus Ramnium,
Lucerum, Titium olim ad exercitum mittebantur.” On the other hand,
Servius (in _Aen._ v. 560) says that the _tribuni_ were so called because
they presided over one-third of the whole force.

[145] p. 12.

[146] Liv. i. 36.

[147] e.g. Calabra, Foriensis, Veliensis. Other names (such as Titia) may
be eponymous.

[148] Festus p. 62 “curionia sacra, quae in curiis fiebant”; p. 64
“curiales flamines curiarum sacerdotes.”

[149] ib. p. 49 (s.v. _curia_) “locus est, ubi publicas curas gerebant.”

[150] See note 1.

[151] Festus p. 126; Liv. xxvii. 8.

[152] Festus p. 55 “Celeres antiqui dixerunt, quos nunc equites dicimus
... qui primitus electi fuerunt ex singulis curiis deni, ideoque omnino
trecenti fuere.”

[153] Liv. i. 26; Cic. _de Rep._ ii. 31, 54.

[154] Dionys. ii. 14.

[155] “Generale jussum” (Capito ap. Gell. x. 20).

[156] _Lex_ is probably connected etymologically with the German _legen_
(Gothic _lagjan_) as θεσμός with τίθημι.

[157] In business we have _leges locationis, venditionis_, in the
structure of corporations a _lex collegii_. On the other hand, in the
_legum dictio_ of augury, which is the statement of the mode of the
answer of the gods to a request, in the _lex data_ given to individuals
by a magistrate (e.g. the _leges censoriae_) or granted by Rome as a
charter to a subject state, there seems to be the idea of a purely
one-sided ordinance.

[158] Dionys. iii. 62; Cic. _de Rep._ ii. 17, 31.

[159] Tac. _Ann._ xi. 22; Ulp. in _Dig._ i. 13.

[160] Varro _L.L._ v. 80 “Praetor dictus, qui praeiret jure et exercitu.”
But the title is, perhaps, a purely military one (_prae-itor_, “the man
who goes before the army”).

[161] Festus p. 198 “in magistro populi faciendo, qui vulgo Dictator
appellatur.”

[162] Cic. _de Rep._ i. 26, 42. _Regnum_ denotes the position of the king
as head of the state (ib. ii. 27), but not the regal power.

[163] _Lictor_ is probably derived from _licere_. For other attempts
at derivation see Gell. xii. 8. They summon, not only to the assembly,
but also to the courts, and are thus the chief mark of jurisdiction and
coercive power (_coercitio_). The individual _curiae_ were probably
summoned by the thirty _lictores curiatii_, who survive into the later
Republic. See Momms. _Staatsr._ i. p. 392. For the number of lictors that
accompanied the king see Cic. _de Rep._ ii. 17, 31; Liv. i. 8; Dionys.
ii. 29; iii. 61, 62.

[164] Serv. in _Aen._ vii. 188, 612; xi. 334; Ov. _Fast._ ii. 503.

[165] Cic. _de Fin._ ii. 21, 69; Dionys. iii. 61.

[166] Festus p. 49 “currules magistrates appellati sunt, quia curru
vehebantur.”

[167] Dionys. iv. 74.

[168] Festus p. 209 “Picta quae nunc toga dicitur purpurea ante vocitata
est eaque erat sine pictura.” It was already _picta_ (διάχρυσος) in
Polybius’ time (Polyb. vi. 53).

[169] Liv. i. 56.

[170] “Arvi et arbusta et pascui lati atque uberes” (Cic. _de Rep._ v. 2,
3). Cf. Liv. ii. 5.

[171] p. 8.

[172] Cic. _de Rep._ ii. 12, 24 “Nostri illi etiam turn agrestes viderunt
virtutem et sapientiam regalem, non progeniem quaeri oportere.” Cf. App.
_B.C._ i. 98.

[173] Liv. i. 7 and 18.

[174] Liv. i. 17; Cic. _de Rep._ ii. 17, 31.

[175] The _interregnum_, though only an occasional office in the
Republic, is represented as an invariable part of the procedure in the
transmission of the kingly power (Liv. i. 47).

[176] Dionys. v. 1; Liv. xl. 42.

[177] Tac. _Ann._ i. 14 and 81; Dio Cass. liii. 21, 7; lviii. 20, 3.

[178] Cic. _de Rep._ ii. 12, 23; Liv. i. 17; Dionys. ii. 57.

[179] [Cic.] _ad Brut._ i. 5, 4.

[180] Cf. Serv. in _Aen._ vi. 808 “Romulo mortuo cum ... Senatus ...
regnasset per decurias.”

[181] Dionys. ii. 57 διακληρωσάμενοι.

[182] Dionys. ii. 57 τοῖς λαχοῦσι δέκα πρώτοις ἀπέδωκαν ἄρχειν τῆς
πόλεως τὴν αὐτόκρατορ’ ἀρχήν: Liv. i. 17 “decem imperitabant, unus cum
insignibus imperii et lictoribus erat.”

[183] In the accounts of this procedure an important element is probably
omitted, i.e. that each individual _interrex_ nominated his successor.
The first could not nominate the king, as he had not received the
auspices in due form.

[184] Mommsen (_Staatsr._ i. pp. 213, 214) takes a different view,
arguing that the king was in every case nominated, not by the _rex_,
but by the _interrex_, on the legal ground that the appointment of a
successor would have been one of those “actus legitimi qui non recipiunt
diem vel condicionem” (such as _hereditatis aditio_, _tutoris datio_),
and which “in totum vitiantur per temporis vel condicionis adjectionem”
(Papin. in _Dig._ 50, 17, 77). But, even in the regal period, there may
have been one condition which did not vitiate such acts, i.e. death (see
p. 29).

[185] Liv. i. 17, 22, 32, 41, 47.

[186] Cic. _de Leg._ Agr. ii. 10, 26; ii. 11, 28; _ad Fam._ i. 9, 25.

[187] Cic. _de Rep._ ii. 13, 25 “Numam ... qui ... quamquam populus
curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio
curiatam legem tulit.”

[188] Liv. i. 41 “Servius, praesidio firmo munitus, primus injussu
populi, voluntate patrum regnavit.”

[189] Cic. _de Rep._ ii. 17, 31 “Tullum Hostilium populus regem,
interrege rogante, comitiis curiatis creavit, isque de imperio suo ...
populum consuluit curiatim.”

[190] The last _injustus dominus_ of Rome ruled “neque populi jussu neque
auctoribus patribus” (Cic. _de Rep._ ii. 24, 45; Liv. i. 49).

[191] Thus Romulus takes his own auspices on the Palatine (Liv. i. 6).

[192] p. 39.

[193] Liv. i. 18 “de se ... deos consuli jussit.”

[194] Labeo ap. Gell. xv. 27, 1; Liv. xl. 42, 8.

[195] Dionys. ii. 14; iv. 74; Plut. _Ti. Gracch._ 15.

[196] Festus p. 185; Labeo ap. Gell. xv. 27; Ov. _Fasti_ ii. 21.

[197] This is shown by his sacrifices on the Kalends and on the Nones
(_sacra nonalia_) and his offering of a ram to Janus in the _regia_ on
the _Agonalia_ (Jan. 9) (Festus p. 10; Varro _L.L._ vi. 12; Ov. _Fasti_
i. 317).

[198] Festus p. 113; Macrob. i. 15, 19.

[199] Liv. i. 20 “Numa Pontificem ... Numam Marcium M. f. ex patribus
legit, eique sacra omnia exscripta exsignataque attribuit, quibus
hostiis, quibus diebus, ad quae templa sacra fierent, atque unde in eos
suraptus pecunia erogaretur. Cetera quoque omnia publica privataque sacra
Pontificis scitis subjecit, ut esset, quo consultum plebes veniret: ne
quid divini juris, negligendo patrios ritus, peregrinos que adsciscendo,
turbaretur, etc.” But afterwards (in 449 B.C.) Livy (iii. 54) implies the
existence of a college, without mentioning its institution. Cf. iv. 44.

[200] Cic. _de Rep._ ii. 14, 26.

[201] Liv. x. 6.

[202] Bouché-Leclercq _Les Pontifes de l’ancienne Rome_ p. 9. That the
king was pontiff is stated by Plutarch (_Numa_ 9), Servius (ad _Aen._
iii. 81), and Zosimus (iv. 36), but the evidence may be vitiated by the
position of the Princeps as _pontifex maximus_.

[203] Liv. i. 20 (p. 51 n. 5); cf. Ambrosch _Studien_ p. 22.

[204] Cic. _de Rep._ ii. 9, 16; _de Div._ i. 2, 3.

[205] Liv. i. 20 “Tum sacerdotibus creandis animum adjecit, quamquam ipse
plurima sacra obibat, ea maxime quae nunc ad Dialem flaminem pertinent.”

[206] As, e.g., the nomination of Flamines belonged to the Latin dictator
(Ascon. in _Milon._ p. 32).

[207] Gaius i. 130. The same was the case with the Vestal (Gell. i. 12).

[208] For the Flamen see Liv. xxxi. 50; Festus p. 104. For the Vestal,
Gell. x. 15.

[209] Plut. _Numa_ 10.

[210] Liv. i. 20 (cited p. 51).

[211] _Supplicium_, from _sub-placo_, death as a sin-offering (Festus
p. 308 “supplicia ... sacrificia a supplicando”); _castigatio_ (“castum
agere”) purification through atonement. On the other hand _poena_,
_multa_, _talio_ bear witness to a theory of compensation and private
vengeance. See Rein _Criminalrecht_ p. 39.

[212] Liv. i. 26; Dionys. iii. 22; Festus pp. 297 and 307.

[213] Festus p. 222; Gell. iv. 3.

[214] Macrob. i. 16, 10 “prudentem expiare non posse.”

[215] Cic. _de Leg._ ii. 9, 22.

[216] Dionys. ii. 10; Serv. ad _Aen._ vi. 609.

[217] Festus p. 230.

[218] Dionys. ii. 74; Festus p. 368.

[219] Plin. _H.N._ xviii. 3, 12.

[220] Bouché-Leclercq _Les Pontifes_ p. 196. In the _lex sacrata_ which
protected the tribunes we meet with this distinction (Liv. iii. 55).

[221] Festus p. 318 “At homo sacer is est, quem populus judicavit ob
maleficium; neque fas est eum immolari, sed qui occidit, parricidi non
damnatur.” This is the meaning of _sacer_ as employed in the _leges
sacratae_ of the early Republic (Liv. ii. 8; iii. 55).

[222] The _sacramentum_ (literally “oath”) in the _actio sacramento_
is best explained as an atonement (_piaculum_) in the form of a money
payment for the expiable, because involuntary, perjury of the litigant
who has maintained a false claim. When the process was secularised, the
_sacramentum_ came to be considered a simple wager. See Danz _Der sacrale
Schutz_ pp. 151 ff.

[223] Cic. _de Rep._ ii. 17, 31 “constituitque jus, quo bella
indicerentur; quod per se justissime inventum sanxit fetiali religione,
ut omne bellum, quod denuntiatum indictumque non esset, id injustum esse
atque impium judicaretur.”

[224] Varro _L.L._ v. 86 “Fetiales ... fidei publicae inter populos
praeerant; nam per hos fiebat ut justum conciperetur bellum et inde
desitum, ut foedere fides pacis constitueretur. Ex his mittebantur,
antequam conciperetur, qui res repeterent, etc.”

[225] Cic. _de Leg._ ii. 9, 21 “Foederum, pacis, belli, indutiarum
ratorum fetiales judices nuntii sunto; bella disceptanto.” The word
_fetialis_ is probably connected with _fateri_ (and Oscan _fatium_). Thus
the “Fetiales” are speakers (_oratores_), cf. Festus p. 182. Dionysius
(ii. 72) ascribes the creation of the Fetiales to Numa; Livy (i. 32)
speaks as if they were due to Ancus Martius, but in another passage (i.
24) implies their earlier existence. Cicero attributes them to Tullus
Hostilius (Cic. _de Rep._ ii. 17, 31). The ceremonies of the college are
described in Dionys. ii. 72 and Liv. i. 32.

[226] Sometimes, the better to secure divine assistance, the enemy, his
cities, and his lands were all devoted to the gods. For the incantation
see Macrob. iii. 9, 10 “Dis pater Vejovis Manes, sive quo alio nomine
fas est nominare ... uti vos eas urbes agrosque capita aetatesque eorum
devotas consecratasque habeatis ollis legibus, quibus quandoque sunt
maxime hostes devoti; eosque ego ... do devoveo.” The site of such cities
was cursed, as in Republican times that of Fregellae, Carthage, and
Corinth.

[227] Macrob. iii. 9, 7 “Si deus, si dea est, cui populus civitasque
... est in tutela, teque maxime, ille qui urbis hujus populique tutelam
recepisti ... a vobis peto ut vos populum civitatemque ... deseratis ...
proditique Romam ad me meosque veniatis, nostraque vobis loca templa
sacra urbs acceptior probatiorque sit.”

[228] Cincius ap. Arnob. iii. 38 “solere Romanos religiones urbium
superatarum partim privatim per familias spargere, partim publice
consecrare.”

[229] e.g. the _evocatio_ at the siege of Veii, the _devotio_ on the fall
of Carthage.

[230] Plut. _Ti. Gracch._ 15; Tac. _Ann._ iii. 26. See next citation.

[231] Tac. _Ann._ iii. 26 “nobis Romulus, ut libitum, imperitaverat: dein
Numa religionibus et divino jure populum devinxit, repertaque quaedam a
Tullo et Anco. Sed praecipuus Servius Tullius sanctor legum fuit, quis
etiam reges obtemperarent.”

[232] Pomponius in _Dig._ 1, 2, 2 “et ita leges quasdam et ipse (Romulus)
curiatas ad populum tulit; tulerunt et sequentes reges. Quae omnes
conscriptæ extant in libro Sexti Papirii, qui fuit illis temporibus,
quibus Superbus Demarati Corinthii filius, ex principalibus viris. Is
liber, ut diximus, appellatur jus civile Papirianum, non quia Papirius
de suo quicquam ibi adjecit, sed quod leges sine ordine latas in unum
composuit.” This code was commented on by Granius Flaccus (Paul. in
_Dig._ 50, 16, 144), a contemporary of Julius Caesar. C. Papirius is
said to have been _pontifex maximus_ (Dionys. iii. 36), and Mommsen
(_Staatsr._ ii. p. 41) thinks that the _leges regiae_ were simply
pontifical ordinances, specifying amongst other things such offences as
we have mentioned as coming under _fas_ (p. 54).

[233] Sall. _Cat._ 6 “imperium legitimum, nomen imperii regium habebant.”

[234] “Regium consilium” (Cic. _de Rep._ ii. 8, 14). The function of the
Senate was περὶ παντὸς ὃτου ἂν εἰσηγῆται βασιλεὺς διαγινὼσκειν (Dionys.
ii. 14).

[235] Festus p. 246 “Praeteriti senatores quondam in opprobrio non
erant, quod, ut reges sibi legebant sublegebantque, quos in consilio
publico haberent, ita post exactos eos consules quoque et tribuni militum
consulari potestate conjunctissimos sibi quosque patriciorum et deinde
plebeiorum legebant.”

[236] p. 13.

[237] Liv. i. 8.

[238] ib. 17 and 35; ii. 1. On the nature of this increase see Willems
_Le Sénat_ p. 21.

[239] p. 13.

[240] p. 12.

[241] Liv. i. 32.

[242] Dionys. ii. 14. One of the privileges of the people was περὶ
πολέμου διαγινώσκειν ὃταν ὁ βασιλεύς ἐφῇ.

[243] Cic. _de Rep._ ii. 9, 15 “Cum ipse (Romulus) nihil ex praeda domum
suam reportaret, locupletare cives non destitit”; ii. 14, 26 “ac primum
agros, quos bello Romulus ceperat, divisit viritim civibus.” Cf. Dionys.
ii. 28 and 62.

[244] Liv. i. 49 “cognitiones capitalium rerum sine consiliis per se
solus exercebat.”

[245] ib. 59; see p. 41.

[246] Tac. _Ann._ vi. 11 “namque antea, profectis domo regibus ac mox
magistratibus, ne urbs sine imperio foret, in tempus deligebatur qui jus
redderet ac subitis mederetur ... duratque simulacrum, quotiens ob ferias
Latinas praeficitur qui consulare munus usurpet.” Cf. Liv. i. 59; Dionys.
ii. 12.

[247] Yet Livy and Dionysius represent the _tribunus celerum_ as
summoning the assembly (Liv. i. 59; Dionys. iv. 71).

[248] Dionys. ii. 14 (amongst the powers of the king were) τῶν τε
ἀδικημάτων τὰ μέγιστα μὲν αὐτὸν δικάζειν, τὰ δ’ ἐλάττονα τοῖς βουλευταῖς
ἐπιτρέπειν. It is difficult, however, to determine whether the reference
is to civil wrongs or to crimes.

[249] ib. iv. 25 ἐκεῖνος (Servius Tullius) διελὼν ἀπὸ τῶν ἰδιωτικῶν
(ἐγκλημάτων) τὰ δημόσια, τῶν μὲν εἰς τὸ κοινὸν φερόντων ἀδικημάτων
αὐτὸς ἐποιεῖτο τὰς διαγνώσεις, τῶν δὲ ἰδιωτικῶν ἰδιώτας ἔταξεν εἶναι
δικαστάς, ὅρους καὶ κανόνας αὐτοῖς τάξας, οὓς αὐτὸς ἔγραψε νόμους. The
principle here described perhaps refers to delegation rather than to the
distinction between _jus_ and _judicium_ in civil process.

[250] For derivations of _jus_ see Clark _Pract. Jurisprudence_ pp.
16-20; Bréal “Sur l’origine des mots designant le droit en Latin” in
_Nouvelle Revue Historique de droit_ vol. vii. (1883) pp. 607 sq.

[251] Dionys. l.c.

[252] Liv. i 26.

[253] Zonaras vii. 13 (who attributes their institution to Publicola)
identifies the _quaestores_ with the _quaestores parricidii_, οἷ πρῶτον
μὲν τὰς θανασίμους δίκας ἐδίκαζον, ὄθεν καὶ τὴν προσηγορίαν ταύτην διὰ
τὰς ἀνακρίσεις ἐσχήκασι καὶ διὰ τὴν τῆς ἀληθείας ἐκ τῶν ἀνακρίσεων
ζήτησιν. Cf. Varro _L.L._ v. 81. Mommsen (_Staatsr._ ii. pp. 523 sq.)
thinks the financial quaestors as standing officials originated with
the Republic; but he believes (p. 539) that they had their origin in
the criminal _quaestores_ (a word which bears the same relation to
_quaesitores_ as _sartor_ to _sarcitor_ or _quaero_ to _quaesivi_, p.
537). Cf. Tac. _Ann._ xi. 22 (p. 81); Ulpian in _Dig._ i. 13.

[254] Liv. l.c.

[255] Cic. _pro Mil._ 3, 7; _de Rep._ ii. 31, 54; Festus p. 297.

[256] Liv. i 26 “Si a duumviris provocarit provocatione certato ...
auctore Tullo, ... ‘provoco’ inquit.”

[257] ib. viii. 33.

[258] Cf. Ihering _Geist des röm. Rechts_ i. pp. 257 ff.

[259] _Provocatio_ seems to mean a challenge, i.e. a challenge by an
accused to a magistrate to appear before another tribunal, on the ground
that he is not acting within his own right; cf. Gaius iv. 93 (of the
_actio per sponsionem_) “Provocamus adversarium tali sponsione.”

[260] “In this conflict of competence the position of the king was far
more favourable than that of the people, since the people could only
be summoned by the king. Hence the share of the people in criminal
jurisdiction was reduced to a minimum” (Ihering _Geist des röm. Rechts_
i. p. 258).

[261] “Judiciis regiis” (Cic. _de Rep._ v. 2, 3).

[262] p. 56.

[263] Savigny _System_, vi. p. 287; Bernhöft _Staat und Recht der
Königszeit_ p. 230. The idea of its being an innovation has sometimes
been associated with Dionysius’s description (iv. 25, see p. 62) of a
change in jurisdiction introduced by Servius Tullius.

[264] Cic. _pro Cluent._ 43, 120 “Neminem voluerunt majores nostri non
modo de existimatione cujusquam, sed ne pecuniaria quidem de re minima
esse judicem, nisi qui inter adversarios convenisset.”

[265] Ihering _Geist des röm. Rechts_ i. p. 169.

[266] Dionys. iv. 22 ὁ δὲ Τύλλιος καὶ τοῖς ἐλευθερουμένοις τῶν θεραπόντων
... μετέχειν τῆς ἰσοπολιτείας ἐπέτρεψε ... καὶ πάντων ἀπέδωκε τῶν κοινῶν
αὐτοῖς μετέχειν, ὧν τοῖς ἄλλοις δημοτικοῖς.

[267] The change, however, was not supposed (except perhaps by Tacitus
_Ann._ iii. 26, see p. 58) to rest on a _rogatio_. Mommsen (_Staatsr._
iii. p. 161) explains this tradition by noting that the alteration was a
mere administrative act, which would fall within the competence of the
king.

[268] It is possible that these three tribes would have been to some
extent local; but locality was an accident. Membership of them was
transmitted by birth.

[269] Dionysius (iv. 22) makes them at a later time members of the
_curiae_.

[270] Dionys. iv. 14; Gell. xv. 27.

[271] Cic. _pro Flacco_ 32, 80 “sintne ista praedia censui censendo,
habeant jus civile, sint necne sint mancipi?... in qua tribu denique ista
praedia censuisti?” The _ager publicus_ was not included in the tribes,
nor were the Capitol and Aventine, because they were not private, but
public property (Liv. vi. 20; Dionys. x. 31 and 32).

[272] Liv. i. 43 “Quadrifariam urbe divisa, regionibusque et collibus,
qui habitabantur, partes eas tribus appellavit”; Dionys. iv. 14 ὁ
Τύλλιος, ἐπείδη τούς ἑπτὰλόφους ἐνὶ τείχει περιέλαβεν, εἰς τέτταρας
μοίρας διελὼν τὴν πόλιν ... τετράφυλον ἐποίησε τὴν πόλιν εἶναι, τρίφυλον
οὖσαν τέως.. So Festus p. 368 “urbanas tribus appellabant, in quas urbs
erat dispertita a Ser. Tullio rege.” Cf. Varro _L.L._ v. 56. Mommsen
(_Staatsr._ iii. p. 163) now holds that the tribes were “parts of the
state-town limited by the _pomerium_.” Ostia, once thought to belong to
Palatina, has been shown to belong to Voturia. But the reason for this
may be the subsequent loss of the _territorium_ of the city. See p. 68.

[273] Momms. _Staatsr._ iii. p. 168. Rome was at this time a great
commercial state (cf. treaty with Carthage, 509 B.C.). That such a
primitive institution as gentile tenure could have existed at this time
is inconceivable.

[274] Dionys. iv. 15 διεῖλε δὲ καὶ τὴν χώραν ἅπασαν, ὡς μὲν Φάβιός
φησιν, εἰς μοίρας ἕξ τε καὶ εἴκοσιν, ἃς καὶ αὐτὰς καλεῖ φυλάς. Mommsen
(_Staatsr._ iii. p. 169) seems to lean to the view that those country
districts, comprising land not in quiritarian ownership, were _pagi_.

[275] _Sucusana_ (or _Suburana_), _Palatina_, _Esquilina_, and _Collina_.
See p. 3.

[276] Cf. Momms. _Staatsr._ iii. p. 125 “The four tribes are probably
nothing more than the three Romulian increased through the _territorium_
of the town on the Quirinal”; p. 164 “Servian Rome, probably a double
town composed of the old city, Palatine and Esquiline, and the new town
of the Colline.”

[277] Districts like Ostia, which must have belonged to the Servian
tribes, now formed parts of the new creations (see p. 67).

[278] Servius is said for this reason to have prohibited transference of
domicile or allotment. Dionys. iv. 14 (Servius) τοὺς ἀνθρῶπους ἔταξε τοὺς
ἐν ἑκάστῃ μοίρᾳ τῶν τεττάρων οἰκοῦντας, ὥσπερ κωμήτας, μήτε μεταλαμβάνειν
ἑτέραν οἴκησιν μήτ’ ἄλλοθι που συντελεῖν.

[279] Momms. _Staatsr._ iii. pp. 182, 184.

[280] Laelius Felix ap. Gell. xv. 27 “Cum ex generibus hominum suffragium
feratur, ‘curiata’ comitia esse, cum ex censu et aetate ‘centuriata,’ cum
ex regionibus et locis, ‘tributa.’”

[281] Servius himself is credited with the introduction of _aes
signatum_—carefully adjusted copper weights stamped by authority. Plin.
_H.N._ xviii. 3 “Servius rex ovum boumque effigie primus aes signavit.”
Mommsen (_Römisches Münzwesen_) thinks that the stamp was a guarantee
not of the weight but of the purity of the metal. In this case the metal
must have been used as a medium of exchange; as a medium of barter the
weight would be sufficient. Mommsen’s opinion is (op. cit. p. 175) that
a regular copper coinage was not introduced at Rome until about the
period of the _decemviri_ (450-430 _B.C._), and more recent numismatists
pronounce even this date to be too early.

[282] Momms. _Staatsr._ iii. p. 247.

[283] The existence of the guilds in regal times (Plut. _Num._ 17) rather
proves than disproves the competing manufacture by slaves.

[284] Cic. _pro Flacco_ 32, 80. See p. 66.

[285] For this difference of armour see Liv. i. 43; Dionys. iv. 16, 17.
It survived into Polybius’ time (Polyb. vi. 23 ὁι δὲ ὑπὲρ τὰς μυρίας
τιμώμενοι δραχμὰς ἀντὶ τοῦ καρδιοφύλακος σὺν τοῖς ἄλλοις ἁλυσιδωτοὺς
περιτίθενται θώρακας).

[286] Gellius vi. (vii.) 13 “‘Classici’ dicebantur non omnes, qui in
quinque classibus erant, sed primae tantum classis homines, qui centum et
viginti quinque milia aeris ampliusve censi erant. ‘Infra classem’ autem
appellabantur secundae classis ceterarumque omnium classium, qui minore
summa aeris, quod supra dixi, censebantur”; Festus p. 113 “infra classem
significantur qui minore summa quam centum et viginti milium aeris censi
sunt.”

Belot (_Hist. d. Chev. Rom._ i. 204, 205) thinks that the 125,000 asses
mentioned here was the figure of the lowest census—the fifth class—at
the time of the _lex Voconia_ (169 B.C.), mentioned in this connexion by
Festus. The designation in asses was still kept, but the _as_ must now
be multiplied by 10 (12,500 × 10 = 125,000 asses). Belot starts from his
hypothesis that the _as_ of the census is the old libral _as_. See the
tables on the next page. Mommsen (_Staatsr._ iii. p. 249 n. 4), on the
other hand, supposes that the law referred to the census of the first
class, and that it was through an interpretation meant to limit its
operation, when the value of money had altered, expressed in terms of the
_centum milia aeris_ of libral asses. That it was so interpreted is shown
by the fact that the _centum milia aeris_ of the Voconian law (Gaius ii.
274) became _centum milia sestertium_ (Schol. to Cic. _Verr._ ii. 1, 41,
104, p. 188 Orell.), i.e. 25,000 denarii (Dio Cass. lvi. 10).

[287] Plut. (_Num._ 17) mentions τέκτονες and χαλκεῖς amongst the
_collegia_ (Momms. _Staatsr._ iii. p. 287 n. 1).

[288] So too Polybius (vi. 23, cited p. 70).

[289] Plin. _H.N._ xxxiii. 3 “Maximus census CXX assium fuit illo
(Servio) rege, et ideo haec prima classis.” Festus p. 113 (cited p. 70).

[290] _Staatsrecht_ iii pp. 249, 250. Böckh (_Metrologische
Untersuchungen_ p. 444) also takes the view of the asses being
_sextantarii_. He makes the qualifications in terms of the libral _as_
and the _as_ of two ounces respectively: 20,000 = 100,000, 15,000 =
75,000, 10,000 = 50,000, 5000 = 25,000, 2000 = 10,000.

[291] _Histoire des Chevaliers Romains_ (Table at commencement of vol. i).

[292] Festus p. 18 “accensi dicebantur qui in locum mortuorum militum
subito subrogabantur, dicti ita, quia ad censum adiciebantur”; p. 369
“velati appellabantur vestiti et inermes qui exercitum sequebantur,
quique in mortuorum militum loco substituebantur.” Cf. p. 14
“adscripticii veluti quidam scripti dicebantur, qui supplendis legionibus
adscribebantur. Hos et accensos dicebant, quod ad legionum censum essent
adscripti. Quidam velatos, quia vestiti inermes sequerentur exercitum.”

[293] Liv. i. 43 “hoc minor census reliquam multitudinem habuit; inde
una centuria facta est immunis militia”; Dionys. iv. 18 (the remaining
citizens with a qualification under 12½ minae Servius placed in one
λόχος) στρατείας τε ἀπέλυσε καὶ πάσης εἰσφορᾶς ἐποίησεν ἀτελεῖς. Cf. vii.
59 οὖτοι στρατειῶν τε ἧσαν ἐλεύθεροι τῶν ἐκ καταλόγου καὶ εἰσφορῶν τῶν
κατὰ τιμήματα γενομένων ἀτελεῖς καὶ δι’ ἄμφω ταῦτ’ ἐν ταῖς ψηφοφορίαις
ἀτιμότατοι. Cf. Cic. _de Rep._ ii. 22, 40 “in quo etiam verbis ac
nominibus ipsis fuit diligens; qui, cum locupletes assiduos appellasset
ab asse dando, eos, qui aut non plus mille quingentos aeris aut omnino
nihil in suum censum praeter caput attulissent, proletarios nominavit;
ut ex iis quasi proles, id est quasi progenies civitatis, exspectari
videretur. Illarum autem sex et nonaginta centuriarum in una centuria tum
quidem plures censebantur, quam paene in prima classe tota.”

[294] Ulpian in _Fragm. Vat._ 138 “ii qui in centuria accensorum
velatorum sunt, habent immunitatem a tutelis et curis.”

[295] The word is not technical enough to be used as an argument that the
_classes_ included only landholders. The favourite ancient derivation was
from _ab asse dando_ (Cic. _de Rep._ ii. 22, 40, see p. 72), whether for
the payment of taxation or for the furnishing of military equipment.

[296] _Capite censi_, if we trust Cicero (_de Rep._ ii. 22, 40, see p.
72), came to mean those below 1500 asses (the subsequent limit to the
incidence of taxation). The limit of census for military service was also
reduced to 4000 asses (Polyb. vi. 19), and finally to 375 (Gell. xvi. 10,
10), and those below this census continued to be called _capite censi_
(Gell. l.c.; Sall. _Jug._ 86). _Aerarius_, on the other hand, seems to
have preserved its old meaning of those excluded from the centuries—Ps.
Asc. in _Divin._ p. 103 “(Censores) prorsus cives sic notabant ... ut,
qui plebeius (esset) ... aerarius fieret, ac per hoc non esset in albo
centuriae suae, sed ad hoc [non] esset civis, tantummodo ut pro capite
suo tributi nomine aera praeberet.”

[297] p. 41.

[298] It is not known when they ceased to be patrician; Mommsen
(_Staatsr._ iii. p. 254) thinks on the reform of the Servian
constitution, _circa_ 220 B.C.

[299] Liv. i. 36.

[300] Cic. _de Rep._ ii. 22, 39.

[301] Festus p. 221 “paribus equis, id est duobus, Romani utebantur
in proelio, ut sudante altero transirent in siccum. Pararium aes
appellabatur id, quod equitibus duplex pro binis equis dabatur.”

[302] Liv. i. 43 “ita pedestri exercitu ornato distributoque equitum
ex primoribus civitatis duodecim scripsit centurias. Sex item alias
centurias ... sub isdem, quibus inauguratae erant, nominibus fecit:
ad equos emendos dena millia aeris ex publico data [i.e., as Livy
understands it, 10,000 _asses sextantarii_ = 1000 denarii], et, quibus
equos alerent, viduae adtributae, quae bina milia aeris in annos singulos
penderent” [2000 asses = 200 denarii]. Cf. Gaius iv. 27.

[303] The number of the century was here fixed, and not, as in the case
of the _classici_, expansive.

[304] Cf. Liv. i. 43 “neque eae tribus ad centuriarum distributionem
numerumque quicquam pertinuere.” There is no evidence, e.g., that each
tribe furnished a certain number of centuries.

[305] _Tributum_, however, cannot be derived from _tribus_ (as by Varro
quoted p. 40). The parallel words _attribuere_, _contribuere_, _ultro
tributa_, etc., seem to show that it means something added to, conferred
on, or collected for another.

[306] p. 48.

[307] As such it was in the Republic given for the censors. Cic. _de Leg.
Agr._ ii. 11, 26 “majores de singulis magistratibus bis vos sententiam
ferre voluerunt; nam cum centuriata lex censoribus ferebatur, cum curiata
ceteris patriciis magistratibus, tum iterum de eisdem judicabatur.”

[308] p. 43.

[309] p. 63.

[310] p. 60.

[311] Liv. i. 48 “id ipsum tam mite ac tam moderatum imperium tamen, quia
unius esset, deponere eum in animo habuisse quidam auctores sunt, ni
scelus intestinum liberandae patriae consilia agitanti intervenisset.”

[312] ib. 49.

[313] Cic. _de Rep._ ii. 22, 44.

[314] Cic. _de Rep._ ii. 30, 52; Liv. ii. 1; App. _B.C._ ii. 119. It is
sometimes represented as a law which made any one who aimed at royalty
_sacer_ (Liv. ii. 8). For the dual sanction of the oath and the law
compare the means by which the _sacrosanctitas_ of the tribunes was
secured (p. 100).

[315] It is strange that the _interregnum_, which would have secured a
continuity, is not mentioned in this case. The election of the first
consuls was supposed to have been conducted by the _praefectus urbi_,
who almost certainly had not the _jus rogandi_ (p. 61). Liv. i. 60 “duo
consules inde comitiis centuriatis a praefecto urbis ex commentariis
Servii Tullii creati sunt, L. Junius Brutus et L. Tarquinius Collatinus.”

[316] For the title _praetores_ see Cic. _de Leg._ iii. 3, 8 “regio
imperio duo sunto iique a praeeundo judicando consulendo praetores
judices consules appellamino”; for that of _judices_, Varro _L.L._ vi.
88, who quotes from the _commentarii consulares_ the formula used in
summoning the _comitia centuriata_, “qui exercitum imperaturus erit,
accenso dicito: ‘C. Calpurni, voca in licium omnes Quirites huc ad me.’
Accensus dicito sic ‘Omnes Quirites in licium visite huc ad judices.’
‘C. Calpurni,’ consul dicito, ‘voca ad conventionem omnes Quirites huc
ad me.’ Accensus dicito sic ‘Omnes Quirites ite ad conventionem huc ad
judices.’”

[317] See the section on the magistracy (p. 187).

[318] This ratification indeed remained. Even though elections were
conducted before the centuries, a _lex_ was still passed by the _curiae_
ratifying this election (p. 49); and the _patrum auctoritas_ was still
required to sanction each fresh appointment.

[319] If it existed before it could have been only in the priestly
colleges, but these seem rather advising bodies to the king.

[320] From _con-salio_, i.e. people who leap or dance together,
“partners” (in a dance). Momms. _Staatsr._ ii. p. 77 n. 3; he compares
_praesul_ and _exul_.

[321] Liv. ii. 8 (509 B.C.) “Latae deinde leges ... ante omnes de
provocatione adversus magistratus ad populum”; Cic. _de Rep._ i. 40, 62
“Vides ... Tarquinio exacto, mira quadam exsultare populum insolentia
libertatis; tum annui consules, tum demissi populo fasces, tum
provocationes omnium rerum” (i.e. the _provocatio_ became _universal_
instead of being confined to certain _spheres_).

[322] By this time the direct capital jurisdiction of the pontiffs had
probably become extinct.

[323] Liv. iii. 20 “neque provocationem esse longius ab urbe mille
passuum, et tribunos si eo (lake Regillus) veniant, in alia turba
Quiritium subjectos fore consulari imperio.” But the question between the
_pomerium_ and the first milestone was in later times still a disputed
one (Liv. xxiv. 9).

[324] Cic. l.c.

[325] p. 63.

[326] The _quaestores parricidii_ and _aerarii_ are identified by Zonaras
(vii. 13), following Dio. See p. 63. They were called _quaestores_,
οἵ πρῶτον μὲν τὰς θανασίμους δίκας ἔδίκαζον (whence their title),
ὕστερον δὲ καὶ τὴν κοινῶν χρημάτων διοίκησιν ἔλαχον. So Varro (_L.L._
v. 81), “quaestores a quaerendo, qui conquirerent publicas pecunias et
maleficia.” The identity of the two offices is denied by Pomponius in
_Dig._ 1, 2, 2, 22 and 23.

[327] _Quaestores parricidii_ were mentioned in the Twelve Tables
(Pompon. in _Dig._ 1, 2, 2, 23).

[328] Liv. i. 26.

[329] They are mentioned in the trial of M. Volscius (459 B.C.) for an
ordinary criminal offence (Liv. iii. 24), but also in the public trials
of Sp. Cassius in 485 B.C. (Liv. ii. 41; Cic. _de Rep._ ii. 35, 60), and
of Camillus in 396 B.C. (Plin. _H.N._ xxxiv. 3, 13); but various accounts
are given of the procedure in these two trials.

[330] Plut. _Public._ 12 ταμιεῖον μὲν ἀπέδειξε τὸν τοῦ Κρόνου ναόν ...
ταμίας δὲ τῳ δήμῳ δύο τῶν νέων ἔδωκεν ἀποδεῖξαι. The first quaestors
appointed were Publius Veturius and Marcus Minucius. Pomponius (p. 80)
puts the creation of the financial quaestors after the first secession of
the Plebs; Lydus (_de Mag._ i. 38) attributes them to the Licinian law of
367.

[331] Tac. _Ann._ xi. 22 “Sed quaestores regibus etiam tum imperantibus
instituti sunt, quod lex curiata ostendit ab L. Bruto repetita. Mansitque
consulibus potestas deligendi, donec eum quoque honorem populus mandaret.
Creatique primum Valerius Potitus et Aemilius Mamercus sexagesimo tertio
anno post Tarquinios exactos, ut rem militarem comitarentur” (i.e. 447
B.C.; hence Mommsen, _Staatsr._ ii. p. 529, thinks the change was due
to the Valerio-Horatian laws of 449 B.C.). Plutarch (see note 1) thinks
they were elected from the first. The meaning of the passage of Tacitus
seems to be that the king nominated his quaestors after his own election,
and their appointment was then ratified by the _lex curiata_. Another
explanation is that the _lex_ recited that the kings had appointed
quaestors and empowered the consuls to do so. Cf. Ulpian in _Dig._ 1, 13.

[332] Festus p. 246, cited p. 59.

[333] Zonaras (vii. 9) makes Servius Tullius introduce Plebeians into the
Senate.

[334] Liv. ii. 1 “Deinde, quo plus virium in senatu frequentia etiam
ordinis faceret, caedibus regis diminutum patrum numerum primoribus
equestris gradus lectis ad trecentorum summam explevit: traditumque inde
fertur, ut in senatum vocarentur qui patres quique conscripti essent:
conscriptos videlicet in novum senatum appellabant lectos”; Festus p.
254 “‘Qui patres, qui conscripti’: vocati sunt in curiam, quo tempore
regibus urbe expulsis P. Valerius consul propter inopiam patriciorum
ex plebe adlegit in numerum senatorum C. et LX. et IIII. ut expleret
numerum senatorum trecentorum” (for these numbers cf. Plut. _Public._
11 τοὺς δ’ ἐγγραφέντας ὑπ’ αὐτοῦ λέγουσιν ἑκατὸν καὶ ἑξήκοντα τέσσαρας
γενέσθαι). So _adlecti_, Festus p. 7 “_adlecti_ dicebantur apud Romanos,
qui propter inopiam ex equestri ordine in senatorum sunt numero adsumpti:
nam patres dicuntur qui sunt patricii generis, conscripti qui in senatu
sunt scriptis adnotati.” Plutarch (_Qu. Rom._ 58, _Rom._ 13) makes the
added members Plebeians. Tacitus (_Ann._ xi. 25) wrongly identifies these
added members with the _minores gentes_. (Claudius creates Patricians
A.D. 48—“paucis jam reliquis familiis, quas Romulus majorum et L. Brutus
minorum gentium appellaverant.”)

[335] Willems (_Le Sénat_ ii. 39 ff.) makes _patres conscripti_ simply
equivalent to “assembled fathers.”

[336] The first clear instance of a plebeian senator dates from the
year 401. Liv. v. 12. P. Licinius Calvus, created military tribune with
consular power, was “vir nullis ante honoribus usus, vetus tantum senator
et aetate jam gravis.” Cf. Liv. iv. 15. Of Sp. Maelius (439 B.C.) it is
asked “quem senatorem concoquere civitas vix posset, regem ferret.”

[337] p. 60.

[338] Liv. ii. 18; Festus p. 198; Pompon. in _Dig._ 1, 2, 2, 18.

[339] The title was, perhaps, originally _praetor_. This would naturally
have been the case if Mommsen’s theory is right that they were regarded
as superior colleagues of the consuls (_Staatsr._ ii. p. 153). The
earliest official title known to us is _magister populi_, and it was the
technical title in the augural books. Cic. _de Leg._ iii. 3, 9 “isque
ave sinistra dictus populi magister esto.” Cf. _de Rep._ i. 40, 63
“Gravioribus vero bellis etiam sine collega omne imperium nostri penes
singulos esse voluerunt, quorum ipsum nomen vim suae potestatis indicat.
Nam dictator quidem ab eo appellatur quia dicitur; sed in nostris
libris vides eum, Laeli, magistrum populi appellari.” The later title,
_dictator_, was perhaps adopted in deference to Republican sentiment;
Mommsen (_Staatsr._ ii. p. 145) conjectures, in imitation of the Latin
dictator, a constitutional survival of the monarchy. The meaning of the
word is wholly uncertain. Ancient guesses say (i.) from _dicitur_ (Cic.
_de Rep._ l.c.); (ii) from _dicto audiens_ (Varro _L.L._ v. 81 “quoi
dicto audientes omnes essent”); (iii.) from _dictare_ (Priscian viii. 14,
78), or (iv.) because they issued edicts (Dionys. v. 73).

[340] Pompon. in _Dig._ 1, 2, 2, 19 “Et his dictatoribus magistri equitum
injungebantur sic, quo modo regibus tribuni celerum: quod officium
fere tale erat, quale hodie praefectorum praetorio, magistratus tamen
habebantur legitimi.”

[341] Cic. _de Leg._ iii. 3, 9 “Ast quando duellum gravius, discordiae
civium escunt, oenus, ne amplius sex menses, si senatus creverit, idem
juris, quod duo consules, teneto”; Imp. Claudius _Oratio_ i. 28 “Quid
nunc commemorem dictaturae hoc ipso consulari imperium valentius repertum
apud majores nostros quo in asperioribus bellis aut in civili motu
difficiliore uterentur?”

[342] Cicero (_de Rep._ ii. 31, 53) gives as the tenor of the first
Valerian law “ne quis magistratus civem Romanum adversus provocationem
necaret neve verberaret.” Dionysius (v. 19) adds ζημιοῦν εἰς χρήματα to
ἀποκτείνειν ἢ μαστιγοῦν, and Plutarch (_Publ._ 11) seems to give it the
same wide scope. He also thinks that Valerius fixed the _multa suprema_
(l.c.), i.e. the largest fine the magistrate could impose without appeal.
These statements may, however, be deductions from the later _provocatio_.

[343] Pompon. in _Dig._ 1, 2, 2 (§ 3) “exactis deinde regibus ... omnes
leges hae exoleverunt iterumque coepit populus Romanus incerto magis jure
et consuetudine aliqua uti quam per latam legem, idque prope quinquaginta
(MSS. “viginti”) annis passus est.” After the Twelve Tables (§ 6) “ex
his legibus ... actiones compositae sunt, quibus inter se homines
disceptarent: quas actiones ne populus prout vellet institueret, certas
sollemnesque esse voluerunt ... Omnium tamen harum et interpretandi
scientia et actiones apud collegium pontificum erant, ex quibus
constituebatur, quis quoquo anno praeesset privatis.”

[344] p. 64.

[345] The later praetorian interdicts (_de locis sacris_, _de mortuo
inferendo_) are really within the domain of _fas_ and must at one time
have been enforced by the pontiffs.

[346] p. 78.

[347] Mommsen _Staatsr._ iii. p. 93.

[348] p. 35.

[349] The privilege could not have been based on quiritarian ownership,
since this tenure was precarious.

[350] The contract of _nexum_ was in fact a conditioned mancipation,
like a testament, the _nuncupatio_ being made by the vendor, who
perhaps purchased with a single coin (_nummo uno_), as in the later
_mancipationes fiduciae causa_ (Bruns _Fontes_).

[351] Except as a penal measure ordained by the state. The _furem
manifestum_ according to Gellius (xx. 1), “in servitutem tradit” (lex);
he is more correctly described as _addictus_ by Gaius (iii. 189). The
_incensus_ might be sold as a slave (Cic. _pro. Caecin._ 34, 99). Later a
free man who collusively allowed himself to be sold as a slave, in order
to share the purchase money with the vendor, was adjudged a slave as a
punishment for his fraud (_Dig._ 40, 13, 3; _Inst._ 1, 3, 4; _Cod._ 7,
18, 1).

[352] p. 24.

[353] Gell. xx. 1 “Aeris confessi rebusque jure judicatis triginta
dies justi sunto. Post deinde manus injectio esto, in jus ducito. Ni
judicatum facit aut quis endo eo in jure vindicit, secum ducito, vincito
aut nervo aut compedibus.... Si volet suo vivito. Ni suo vivit, qui eum
vinctum habebit, libras farris endo dies dato. Si volet plus dato.” The
_addictus_ like the _nexus_ did not become a slave, but still retained
his position in his census and in his tribe (Quinctil. _Decl._ 311).

[354] In the case of a nexal contract there could not be more creditors
than one. A man could not, by the nature of the case, mancipate himself
to several people at once.

[355] Liv. ii. 23 “Fremebant se, foris pro libertate et imperio
dimicantes, domi a civibus captos et oppressos esse; tutioremque in bello
quam in pace, et inter hostes quam inter cives, libertatem plebis esse.”

[356] ib. 27.

[357] Dionys. vi. 45.

[358] Liv. ii. 28. The senators complain “nunc in mille curias
contionesque (cum alia in Esquiliis, alia in Aventino fiant concilia)
dispersam et dissipatam esse rem publicam.”

[359] Varro _L.L._ v. 81 “tribuni plebei, quod ex tribunis militum primum
tribuni plebei facti, qui plebem defenderent, in secessione Crustumerina.”

[360] The principle of cooptation was said to have been recognised in the
_carmen rogationis_ of the tribunate, and in this case it was held that
Patricians were eligible. Liv. iii. 65 (449 B.C.) “Novi tribuni plebis
in cooptandis collegis patrum voluntatem foverunt. Duos etiam patricios
consularesque, Sp. Tarpeium et A. Aternium, cooptavere.” But, with the
disuse of this principle, the plebeian qualification was observed.

[361] Cic. ap. Ascon. _in Cornel._ p. 76 “Tanta igitur in illis virtus
fuit, ut anno xvi. post reges exactos propter nimiam dominationem
potentium secederent, ... duos tribunos crearent.... Itaque auspicato
postero anno tr. pl. comitiis curiatis creati sunt,” (For the number
two Ascon. _in loc._ quotes Tuditanus and Atticus.) Cicero apparently
understands by this the mixed assembly of the _curiae_; and so does Livy
(ii. 56, on the _lex Publilia_ transferring the elections of the tribunes
to the tribes), “quae patriciis omnem potestatem per clientium suffragia
creandi, quos vellent, tribunos auferret.”

[362] It must have been so restricted at first. Later (as we shall see in
dealing with the intercession) the _auxilium_ was extended to the whole
people.

[363] Cic. _de Rep._ ii. 33, 58 “contra consulare imperium tribuni plebis
... constituti.”

[364] Gell. xiii. 12 “(tribunis) jus abnoctandi ademptum, quoniam, ut vim
fieri vetarent, adsiduitate eorum et praesentium oculis opus erat.” Cf.
iii. 2. Plut. _Qu. Rom._ 81 ὅθεν οὐδ’ οἰκίας αὐτοῦ κλείεσθαι νενόμισται
θύραν, ἀλλὰ καὶ νύκτωρ ἀνέῳγε καὶ μεθ’ ἡμέραν, ὤσπερ λιμὴν καὶ καταφυγὴ
τοῖς δεομένοις.

[365] For the increase to four see Diodor. xi. 68 (471 B.C. in connexion
with the _lex Publilia_); other accounts represent the original number as
five (Ascon. l.c. p. 93, and Livy ii. 33; two elected, three coopted; cf.
note on p. 93). The increase to ten is assigned by Livy and Dionysius to
457 B.C. (Livy iii. 30; the tribunes allowed the levy “non sine pactione
tamen ut ... decem deinde tribuni plebis crearentur. Expressit hoc
necessitas patribus”; cf. Dionys. x. 30).

[366] Liv. ii. 35 “contemptim primo Marcius audiebat minas tribunicias;
auxilii, non poenae, jus datum illi potestati; plebisque, non patrum,
tribunos esse.” Coriolanus was probably impeached before the Plebs as a
_hostis tribuniciae potestatis_ in consequence of his advice that the
tribunate should be abrogated (Liv. ii. 34). See Rein _Criminalrecht_
p. 484. Cf. Liv. ii. 56 (471 B.C.; the tribune seizes some _nobiles_
who would not yield to his _viator_) “Consul Appius negare jus esse
tribuno in quemquam, nisi in plebeium; non enim populi, sed plebis, eum
magistratum esse.”

[367] Dionys. vii. 17 δημάρχου γνώμην ἀγορεύοντος ἐν δήμῳ μηδεὶς λεγέτω
μηδὲν ἐναντίον μηδὲ μεσολαβείτω τὸν λόγον. ἐὰν δὲ τις παρὰ ταῦτα ποιὴσῃ,
διδότω τοῖς δημάρχοις ἐγγυητὰς αἰτηθεὶς εἰς ἔκτισιν ἧς ἂν ἐποθῶσιν αὐτῷ
ζημίας. Any one who does not give securities (ἐγγυηταί) is to be punished
with death καὶ τὰ χρήματ’ αὐτοῦ ἱερὰ ἔστω. τῶν δ’ ἀμφισβητούντων πρὸς
ταύτας τὰς ζημίας αἱ κρίσεις ἔστωσαν ἐπὶ τοῦ δήμου. Cf. vi. 16, and
Cic. _pro Sest._ 37, 79 “Fretus sanctitate tribunatus, cum se non modo
contra vim et ferrum, sed etiam contra verba atque interfationem legibus
sacratis esse armatum putaret.”

[368] p. 66 note 5.

[369] Dionys. x. 31, 32; see Mr. Strachan-Davidson in Smith _Dict. of
Antiq._ s.v. _plebiscitum_.

[370] p. 39.

[371] Dionys. vi. 90 ἄνδρας ἐκ τῶν δημοτικῶν δύο καθ’ ἕκαστον ἐνιαυτὸν
ἀποδεικνύναι τοὺς ὑπηρετήσοντας τοῖς δημάρχοις ὅσων ἂν δέωνται καὶ δίκας,
ἅς ἂν ἐπιτρέψωνται ἐκεῖνοι, κρινοῦντας ἱερῶν τε καὶ δημοσίων τόπων καὶ
τῆς κατὰ τὴν ἀγορὰν ἐυετηρίας ἐπιμελησομένους: Gell. xvii. 21 “tribunos
et aediles tum primum per seditionem sibi plebes creavit”; Pompon. in
_Dig._ 1, 2, 2, 21 “Itemque ut essent qui aedibus praeessent, in quibus
omnia scita sua plebs deferebat, duos ex plebe constituerunt, qui etiam
aediles appellati sunt.”

[372] Dionysius (l.c.) suggests that they originally bore another title.
Pomponius (l.c.) derives the name from their office in the temple of
Ceres; Varro from their care of the repair of _aedes_ both sacred and
private (Varro _L.L._ v. 81 “aedilis, qui aedes sacras et privatas
procuraret”), a derivation which Mommsen (_Staatsr._ ii. p. 480) favours.
Their relation to the aediles of the Latin towns is wholly uncertain.
Mommsen (ib. p. 474) holds strongly to the view that the Latin aedileship
was borrowed from the Roman. For a different view cf. Ohnesseit _Ztschr.
der Savigny-stiftung_ 1883, pp. 200 sq.

[373] Plut. _Coriol._ 18 (the tribune Sicinnius) προσέταξε τοῖς
ἀγορανόμοις ἀναγαγόντας αὐτὸν ἐπὶ τὴν ἄκραν εὐθὺς ὦσαι κατὰ τῆς
ὑποκειμένης φάραγγος. So later in the trial of P. Scipio. Liv. xxix. 20;
xxxviii. 52.

[374] Liv. iii. 31 (456 B.C.; the consuls sell booty taken from the
Aequi) “itaque ergo, ut magistratu abiere ... dies dicta est, Romilio ab
C. Calvio Cicerone, tribuno plebis, Veturio ab L. Alieno, aedile plebis.”

[375] Yet Livy attributes both to the fifth century; they perform
police-duties in the year 463 (Liv. iii. 6), and are entrusted with the
care of the state religion in 428 (Liv. iv. 30).

[376] Livy, however (iii. 55, cited note 2), represents the
_sacrosanctitas_ of the aediles as being based only on law.

[377] Dionys. vi. 89. The _sacrosanctitas_ of the tribune is guaranteed
νόμῳ τε καὶ ὅρκῳ. Cf. App. _B.C._ ii. 108 ἡ τῶν δημάρχων ἀρχὴ ἱερὰ
καὶ ἄσυλος ἦν ἐκ νόμου καὶ ὅρκου παλαιοῦ. For these two grounds of
inviolability see Liv. iii. 55 (restoration of tribunate in 449) “et cum
religione inviolatos eos, tum lege etiam fecerunt, sanciendo ‘ut qui
tribunis plebis, aedilibus, judicibus, decemviris nocuisset, ejus caput
Jovi sacrum esset, familia ad aedem Cereris, Liberi Liberaeque venum
iret.’ Hac lege juris interpretes negant quemquam sacrosanctum esse; sed
eum, qui eorum cuiquam nocuerit, sacrum sanciri. Itaque aedilem prendi
ducique a majoribus magistratibus: quod etsi non jure fiat (noceri enim
ei, cui hac lege non liceat) tamen argumentum esse, non haberi pro sacro
sanctoque aedilem: tribunos vetere jurejurando plebis, cum primum eam
potestatem creavit, sacrosanctos esse” (cf. Liv. ii. 33 “sacratam legem
latam” on the Mons Sacer).

[378] Resistance to the will of a _magistratus populi_ is not
_perduellio_ in later Roman law, but rather _vis_. But resistance to the
tribune is always _majestas_.

[379] Dionys. vii. 17. See p. 96.

[380] Liv. ii 56 (Publilius Volero) “rogationem tulit ad populum, ut
plebei magistratus tributis comitiis fierent” (followed by the words
cited on p. 94).

[381] This is Livy’s view (l.c.), “nec, quae una vis ad resistendum erat,
ut intercederet aliquis ex collegio ... adduci posset.”

[382] The ground of objection given by Livy (ii. 56, cited p. 94) rests
on the belief that the tribunes had been formerly elected by the _comitia
curiata_.

[383] Aemilia, [Camilia], Claudia, Cornelia, Fabia, [Galeria], Horatia,
[Lemonia], Menenia, Papiria, [Pollia], [Pupinia], Romulia or Romilia,
Sergia, [Voltinia], Voturia or Veturia (from Momms. _Staatsr._ iii. p.
168; the names he encloses in brackets are those to which there are no
extant patrician _gentes_ to correspond).

[384] Dionys. vii. 64.

[385] Momms. _Staatsr._ iii. p. 153.

[386] See Appendix.

[387] Livy (iii. 9) says, “ut vviri creentur legibus de imperio consulari
scribendis.” Even if this expression is due to a misunderstanding of the
title of the decemvirs, “consulari imperio legibus scribendis” (Momms.
_Staatsr._ ii. p. 702), it no doubt expresses a fact. For the nature
and object of the decemvirate see Pompon. in _Dig._ 1, 2, 2, 4 (of the
appointment of the decemvirs) “datumque est eis jus eo anno in civitate
summum, uti leges et corrigerent, si opus esset, et interpretarentur
neque provocatio ab eis sicut a reliquis magistratibus fieret”; ib. (of
the publication of the laws) “quas in tabulas eboreas perscriptas pro
rostris composuerunt, ut possint leges apertius percipi.” Cf. Dionys. x.
1, 60.

[388] Livy (iii. 11, 26, and 29) seems to speak of the law not being
allowed to pass the Plebs; but then he does not recognise the two stages
of legislation. See p. 97.

[389] Liv. iii. 31.

[390] ib. 33; cf. Momms. _Staatsr._ ii. p. 714.

[391] Liv. iii. 32 “postremo concessum patribus, modo ne lex Icilia de
Aventino, aliaeque sacratae leges abrogarentur.” As to the _sacratae
leges_, the aedileship would have gone with the tribunate; and there was
nothing more to be protected by the _leges sacratae_.

[392] Their title was _Decemviri consulari imperio legibus scribendis_
(Capitoline Fasti). Cf. Liv. iii. 32 (“placet creari xviros sine
provocatione, et ne quis eo anno alius magistratus esset”) and Pompon. in
_Dig._ (cited p. 102).

[393] Liv. iii. 34 “se ... omnibus, summis infimisque jura aequasse.”

[394] Dionys. x. 58; Liv. iii. 35.

[395] Liv. iii. 57. The accounts of the material of the “Tables” vary.
Livy (l.c.) says “in aes incisas in publico proposuerunt”; Pomponius (in
_Dig._, cited p. 102) says “in tabulas eboreas perscriptas” (perhaps
_roboreas_ or _aereas_, Kipp, _Quellenkunde des R.R._ p. 8). It is
possible that they were of wood.

[396] Liv. iii. 34 “fons omnis publici privatique est juris”; Tac. _Ann._
iii. 27 “creatique decemviri et accitis quae usquam egregia compositae
duodecim tabulae, finis aequi juris.”

[397] Cic. _de Leg._ ii. 23, 59 “Discebamus enim pueri XII, ut carmen
necessarium; quas jam nemo discit.”

[398] Liv. iii. 34.

[399] p. 19.

[400] Ulpian _Reg._ ii. 4.

[401] p. 10.

[402] p. 91.

[403] Cato _R.R._ praef.

[404] Plin. _H.N._ xviii. 3, 12.

[405] Cic. _de Rep._ iv. 12.

[406] Gell. xx. 1.

[407] Marcian in _Dig._ 48, 4, 3 “Lex duodecim tabularum jubet eum, qui
hostem concitaverit quive civem hosti tradiderit, capite puniri.”

[408] Pompon. in _Dig._ 1, 2, 2, 23. See p. 80.

[409] Cic. _de Rep._ ii. 31, 54 “ab omni judicio poenaque provocari
licere indicant XII Tabulae compluribus legibus.”

[410] Cic. _de Leg._ iii. 4, 11.

[411] _Decl. in Catil._ 19.

[412] This rule is said to have been taken from a law of Solon’s (Gaius
in _Dig._ 47, 22, 4). Other traces of Greek influence are perhaps to be
found in the sumptuary regulations, especially those about funerals, and
perhaps in the prohibition of interment within the city. Gaius finds also
a Solonian parallel to the _actio finium regundorum_ ordained by the law
(_Dig._ 10, 1, 13).

[413] Liv. vii. 17 “in duodecim tabulis legem esse, ut quodcumque
postremum populus jussisset, id jus ratumque esset.”

[414] Liv. iii. 53.

[415] ib. 54 “ibi extemplo, pontifice maximo comitia habente, tribunos
plebis creaverunt.”

[416] ib. “Confestim de consulibus creandis cum provocatione M. Duilius
rogationem pertulit.” Such a resolution would not need confirmation by
the people, as, after the fall of the decemvirs, an _interregnum_ would
naturally ensue; and this was a matter for the Senate. But Livy also
represents the tribune as (in accordance with a _senatus consultum_)
passing the act of amnesty, iii. 54 “Tribunatu inito, L. Icilius extemplo
plebem rogavit, et plebs scivit, ne cui fraudi esset secessio ab
decemviris facta.” In later Roman law amnesty resides with the Senate.

[417] Liv. iii. 55 “ne quis ullum magistratum sine provocatione crearet,
qui creasset, eum jus fasque esset occidi: neve ea caedes capitalis noxae
haberetur.”

[418] p. 79.

[419] p. 79.

[420] p. 99.

[421] Liv. iii. 55 “omnium primum, cum velut in controverso jure esset,
tenerenturne patres plebiscitis, legem centuriatis comitiis tulere ‘ut
quod,’” etc. Cf. Dionys. xi. 45.

[422] Mr. Strachan-Davidson in Smith _Dict. of Antiq._ s.v.
_plebiscitum_, and _English Historical Review_ Nos. 2 and 19.

[423] p. 97.

[424] p. 107.

[425] Types of such laws between 449 and 287 B.C. are the _lex
Terentilia_ (462), _Canuleia_ (445), _Licinia_ (367), _Ogulnia_ (300).

[426] Liv. iii. 55 “M. Duilius deinde tribunus plebis plebem rogavit,
plebesque scivit: ‘qui plebem sine tribunis reliquisset, quique
magistratum sine provocatione creasset, tergo ac capita puniretur.’”

[427] Liv. iv. 1 “de conubio patrum et plebis C. Canuleius tribunus
plebis rogationem promulgavit.”

[428] See p. 39 and cf. Liv. iv. 6; the consuls (in a _contio_) gave
as the official reason “quod nemo plebeius auspicia haberet; ideoque
decemviros conubium diremisse, ne incerta prole auspicia turbarentur.”

[429] Liv. iv. 1 “et mentio, primo sensim inlata a tribunis, ut alterum
ex plebe consulem liceret fieri, eo processit deinde, ut rogationem novem
tribuni promulgarent, ‘ut populo potestas esset, seu de plebe, seu de
patribus vellet, consules faciendi.’”

[430] The situation at the beginning of the year thus is described by
Livy (iv. 2), “eodem tempore et consules senatum in tribunum, et tribunus
populum in consules incitabat.” At last (Liv. iv. 6) “victi tandem
patres, ut de conubio ferretur, consensere.”

[431] Liv. iv. 6.

[432] ib. 35.

[433] Claudius in _Tab. Lugd._ “quid (commemorem) in pluris distributum
consulare imperium tribunosque militum consulari imperio appellatos, qui
seni et saepe octoni crearentur.”

[434] Livy sometimes speaks of eight (v. 1, vi. 27); cf. _Tab. Lugd._
cited note 3. It is probable that this number includes the six tribunes
and the two censors (Momms. _Staatsr._ ii. p. 184); e.g. Livy gives
eight for the year 403, the Fasti Capitol. for the same year (351 A.U.C.
_C.I.L._ i. p. 428) six and two censors.

[435] Pompon. in _Dig._ 1, 2, 2, 25 “cum ... plebs contenderet cum
patribus et vellet ex suo quoque corpora consules creare, et patres
recusarent, factum est ut tribuni militum crearentur partim ex plebe,
partim ex patribus consulari potestate.”

[436] Liv. v. 12. This is maintained to be an error by Mommsen, _Röm.
Forsch._ i. 66; _Staatsr._ ii. p. 188. He holds that in 445 B.C. one L.
Atilius Longus was a Plebeian, and that in 400, 399, 396 the Plebeians
had a majority. Livy’s view is upheld by Willems _Le Sénat_ i. 58-60.

[437] If it be taken to prove that the preponderance of voting power in
the _comitia centuriata_ was still on the side of the Patricians, it
would throw a valuable side-light on the relative economic position of
the two orders.

[438] _Imperium_ (_Tab. Lugd._ quoted p. 112); _potestas_ (Liv. iv. 6);
_jus_ (Tac. _Ann._ i. 1).

[439] Liv. iv. 7 “et imperio et insignibus consularibus usos.”

[440] ib. v. 13, 52.

[441] “Proconsularis imago” (Liv. v. 2).

[442] Zonar. vii. 19.

[443] Liv. iv. 55 “pervincunt, ut senatus consultum fiat de tribunis
militum creandis”; iv. 12 “cum ... obtinuisset, ut consulerentur patres,
consulum an tribunorum placeret comitia haberi.” Dionysius (xi. 60)
represents the people as being consulted too.

[444] i.e. in accordance with the law, if there was one, establishing the
office.

[445] Momms. _Staatsr._ ii. p. 191.

[446] Liv. iv. 8 “ortum autem initium est rei, quod in populo, per multos
annos incenso, neque differri census poterat, neque consulibus, cum tot
populorum bella imminerent, operae erat id negotium agere.” Cf. Dionys.
xi. 63.

[447] Liv. l.c. “Idem hic annus censurae initium fuit, rei a parva
origine ortae.”

[448] Liv. iv. 24. Mommsen indeed thinks (_Staatsr._ ii. p. 349) that
this _lex Aemilia_ first made the censorship an independent magistracy
with a fixed tenure. It was probably an independent magistracy before,
but with no fixed tenure. Hence the belief that the censors originally
held office for five years, the period of the _lustrum_ (Liv. l.c., cf.
ix. 34).

[449] pp. 81, 102.

[450] Liv. iv. 43 (discord between the Patres and the Plebs) “exorta
est, coepta ab duplicando quaestorum numero ... praeter duos urbanos
quaestores duo ut consulibus ad ministeria belli praesto essent.”
The tribunes demanded “ut pars quaestorum ... ex plebe fieret.” The
compromise arrived at was that “quattuor quaestores promiscue de plebe ac
patribus libero suffragio populi fierent.”

[451] ib. 54. The Plebs, indignant at the election of consuls in place of
military tribunes, “eum dolorem quaestoriis comitiis simul ostendit, et
ulta est, tunc primum plebeiis quaestoribus creatis: ita ut, in quattuor
creandis, uni patricio K. Fabio Ambusto relinqueretur locus.” For the
election at the _comitia tributa_ see p. 102.

[452] p. 83 note 2.

[453] Liv. iv. 25. The _principes plebis_, in despair at the choice
of the military tribunate always falling on Patricians, came to the
conclusion that it was “ambitione artibusque” of the Patricians. Hence
a tribunician measure “ne cui album in vestimentum addere petitionis
liceret causa.” After great resistance “vicere tribuni ut legem
perferrent.”

[454] “Principes plebis” (Liv. l.c.).

[455] ib. vi. 31 “conditiones impositae patribus, ne quis, quoad bellatum
esset, tributum daret, aut jus de pecunia credita diceret.”

[456] ib. 35 “omnium igitur simul rerum, quarum immodica cupido inter
mortales est, agri, pecuniae, honorum, discrimine proposito, conterriti
patres, etc.”

[457] Liv. vi. 37 “Novam rogationem promulgant, ut pro duumviris sacris
faciundis decemviri creentur; ita ut pars ex plebe, pars ex patribus
fiat.”

[458] ib. 38. His statements are inconsistent. He speaks of the college
as being unanimous, and yet of _intercessio_ being used at the meeting.

[459] Liv. vi. 42 “concessum ... a plebe nobilitati de praetore uno,
qui jus in urbe diceret, ex patribus creando,” probably by a clause
introduced into the Licinian rogations when they were submitted by the
consul to the Populus (see p. 97). The true motive is given by Pomponius
in _Dig._ 1, 2, 2, 27, “Cum consules avocarentur bellis finitimis neque
esset, qui in urbe jus reddere posset, factum est ut praetor quoque
crearetur, qui urbanus appellatus est, quod in urbe jus redderet.”

[460] Mommsen (_Staatsr._ ii. p. 204) doubts it, chiefly on the ground
that no law is mentioned as opening the office to Plebeians thirty
years later. Probably the same doubt hung over the praetorship as over
the second place in the consulship, i.e. whether the Licinian law, by
reserving one consulship to the Plebs, had left the other posts open to
both orders or not.

[461] Liv. vii. 1 “collegam consulibus atque iisdem auspiciis creatum.”
Cf. Gell. xiii. 15.

[462] An instance of the exercise of a consular veto over a judicial
decision of a praetor in 77 B.C. is preserved by Valerius Maximus (vii.
7, 6).

[463] Liv. viii. 15 “eodem anno Q. Publilius Philo praetor primus
de plebe, adversante Sulpicio consule, qui negabat rationem ejus se
habiturum, est factus; senatu, cum in summis imperiis id non obtinuisset,
minus in praetura intendente.”

[464] p. 98.

[465] Liv. vi. 42 “Factum senatus consultum, ut duo viros aediles ex
patribus dictator populum rogaret.”

[466] ib. vii. 1 (366 B.C.) “verecundia inde imposita est senatui ex
patribus jubendi aediles curules creari. primo, ut alternis annis ex
plebe fierent, convenerat; [this was the rule in 213 (Polyb. x. 4)].
postea promiscuum fuit” [Mommsen (_Staatsr._ ii. p. 482) thinks as late
as the last century of the Republic].

[467] ib. 17 “dictator C. Marcius Rutilus primus de plebe dictus”; he
appointed a plebeian master of the horse.

[468] ib. 22. The same C. Marcius Rutilus “professus censuram se petere”
was elected.

[469] ib. viii. 12 “ut alter utique ex plebe ... censor crearetur.”

[470] ib. _Ep._ 59 “Q. Pompeius et Q. Metellus, tunc primum utrique ex
plebe facti, censores lustrum condiderunt.”

[471] Liv. vii. 42. The law was proposed by the tribune L. Genucius. It
was not, however, until the year 172 B.C. that both consuls were plebeian
(Liv. xlii. 9; Fast. Cap. _C.I.L._ i. 1 p. 25).

[472] p. 52.

[473] Livy (x. 6) marvels at the fact; he thinks that it must have been
accidental (“morte duorum”), since the augural college should have
consisted of three or of a multiple of three. Cicero (_de Rep._ ii. 9,
16) says that Romulus coopted (_cooptavit_) one from each of the three
tribes; they were therefore four; that Numa added two (ib. ii. 14, 26).
This makes six, which Livy (l.c.) thinks the normal number at the time of
the passing of the Ogulnian law.

[474] Liv. x. 6. These numbers remained unaltered until the time of Sulla
(81 B.C.), who raised the colleges of pontiffs and augurs to fifteen
(Liv. _Ep._ 89). A sixteenth was added to both colleges by Julius Caesar
(Dio Cass. xlii. 51).

[475] Liv. xxxiii. 42. The number was afterwards increased to seven, from
which time the college was known as that of the _VIIviri epulones_.

[476] Marquardt _Staatsverw._ iii. p. 333.

[477] Liv. iii. 32 “augur (mortuus est) C. Horatius Pulvillus; in cujus
locum C. Veturium eo cupidius, quia damnatus a plebe erat, augures
legere.” The _pontifex maximus_ was early an exception to this rule; see
the _comitia sacerdotum_ in the section dealing with the people.

[478] Cic. _de Leg. Agr._ ii. 7, 18; Vell. ii. 12.

[479] Liv. viii. 12.

[480] p. 109.

[481] Mr. Strachan-Davidson conjectures that the law of Publilius Philo
“may have struck out the intervening consultation of the Senate, and
may have required the consul to bring the petition of the Plebs at once
before the Populus” (Smith _Dict. of Antiq._ s.v. _plebiscitum_, ii. p.
439).

[482] p. 83.

[483] The only evidence that they were is furnished by Livy’s account
of a _lex Manlia_ of 357 B.C. (Willems _Droit Public_ p. 183). See Liv.
vii. 16 (Manlius the consul) “legem, novo exemplo ad Sutrium in castris
tributim de vicesima eorum, qui manumitterentur, tulit. Patres, quia ea
lege haud parvum vectigal inopi aerario additum esset, auctores fuerunt.”

[484] ib. viii. 12 “ut legum, quae comitiis centuriatis ferrentur, ante
initum suffragium patres auctores fierent.”

[485] Cic. _Brut._ 14, 55. Cf. Liv. i. 17 “hodie ... in legibus
magistratibusque rogandis usurpatur idem jus (the _patrum auctoritas_),
vi adempta.”

[486] Laelius Felix ap. Gell. 15, 27 “(plebi scitis) ante patricii non
tenebantur, donec Q. Hortensius dictator legem tulit, ut eo jure quod
plebs statuisset, omnes quirites tenerentur”; Plin. _H.N._ xvi. 10, 37
“ut quod ea (plebs) jussisset, omnes quirites teneret.”

[487] Gaius i. 3 “olim patricii dicebant plebi scitis se non teneri, quia
sine auctoritate eorum facta essent; sed postea lex Hortensia lata est,
qua cautum est, ut plebi scita universum populum tenerent, itaque eo
modo legibus exaequata sunt”; Pompon. in _Dig._ 1, 2, 2, 8 “pro legibus
placuit et ea (plebiscita) observari lege Hortensia: et ita factum est,
ut inter plebis scita et legem species constituendi interesset, potestas
autem eadem esset.”

[488] Pompon. l.c.

[489] The _lex Agraria_ of 111 B.C. (Bruns _Fontes_) thus refers to
a _lex Sempronia_ of 123 B.C., “[ex] lege plebeive scito, quod C.
Sempronius Ti. f. tr. pl. rogavit.” Cf. _lex Rubria_ (ib.) “ex lege
Rubria seive id pl. sc. est.”

[490] Thus Cicero, exiled by a _plebiscitum_, was restored by a _lex
centuriata_. See the section on the people.

[491] Of the many instances one of the most remarkable is to be found in
Sall. _Jug._ 84, “Marius ... cupientissima plebe consul factus, postquam
ei provinciam Numidiam populus jussit.” Here _plebs_ should be _populus_
and _populus_, _plebs_.

[492] “Legislative” is here used in the modern sense. At Rome a judicial
and elective act of the people was equally a _lex_.

[493] At least in 304 B.C. they had no right of _relatio_ with the Senate
(Liv. ix. 46).

[494] Gaius iv. 23.

[495] Varro _L.L._ viii. 105 “Hoc (the condition of _nexum_) C. Poetilio
Libone Visolo dictatore (313 B.C.) sublatum ne fieret; et omnes, qui
bonam copiam jurarunt, ne essent nexi dissoluti.” Livy (viii. 28), who
attributes the measure to 326 B.C., makes it a universal release of
_nexi_: “jussique consoles ferre ad populum, ne quis, nisi qui noxam
meruisset, donec poenam lueret, in compedibus aut in nervo teneretur:
pecuniae creditae bona debitoris, non corpus obnoxium esset.”

[496] Liv. ix. 46 “Cn. Flavius ... patre libertino ... civile jus,
repositum in penetralibus pontificum, evulgavit, fastosque circa forum in
albo proposuit, ut quando lege agi posset, sciretur”; Pompon. in _Dig._
1, 2, 2, 7 “postea cum Appius Claudius composuisset (for “proposuisset”)
et ad formam redegisset has actiones, Cn. Flavius scriba ejus libertini
filius subreptum librum populo tradidit ... hic liber, qui actiones
continet, appellator jus civile Flavianum.”

[497] Pompon. l.c. §§ 37, 38. Gaius Scipio Nasica was given a house
for consultations. The first professor, Ti. Coruncanius (“qui primus
profiteri coepit,” circ. 280 B.C.), was also the first plebeian _pontifex
maximus_.

[498] Polyb. vi. 53.

[499] Cic. _in Verr._ v. 14, 36 “togam praetextam, sellam curulem, jus
imaginis ad memoriam posteritatemque prodendae.”

[500] In other words, images of other than curule ancestors might be set
up in the _atrium_.

[501] p. 22.

[502] Sallust. _Jug._ 95 (of Sulla) “gentis patriciae nobilis fuit,
familia prope jam exstincta majorum ignavia.”

[503] Cic. _pro Mur._ 7. 16; Ascon. _in Scaurian_. p. 22.

[504] Dionys. vii. 71.

[505] Cf. Cic. _de Off._ ii. 17, 58 “Vitanda tamen suspicio est
avaritiae. Mamerco, homini divitissimo, praetermissio aedilitatis
consulatus repulsam attulit.”

[506] Liv. xxii. 34 (of the election of Varro, 217 B.C.) “Patres summa
ope obstabant, ne se insectando sibi aequari adsuescerent homines.”

[507] Sallust. _Jug._ 63 “consulatum nobilitas inter se per manus
tradebat; novus nemo tam clarus neque tam egregiis factis erat, quin
indignus illo honore, et is quasi pollutus, haberetur.”

[508] Cic. _pro Domo_ 14, 38 “Ita populus Romanus brevi tempore, neque
regem sacrorum, neque flamines, neque salios habebit, nec ex parte
dimidia reliquos sacerdotes, neque auctores centuriatorum et curiatorum
comitiorum: auspiciaque populi Romani, si magistratus patricii creati
non sint, intereant necesse est, cum interrex nullus sit, quod et ipsum
patricium esse et a patriciis prodi necesse est.” The passage is closely
followed by Livy vi. 41, in the speech against the Licinio-Sextian
laws, with which he credits Appius Claudius. We meet with other archaic
survivals in connexion with the Senate—the distinction, e.g., between
the “greater and lesser _gentes_” (p. 12) was never lost, and the chief
of the Senate, the first member on the list, was always chosen from the
_gentes majores_ (see p. 12).

[509] Ulpian _Reg._ v. 8 “conubio interveniente liberi semper patrem
sequuntur; non interveniente conubio matris conditioni accedunt, excepto
eo qui ex peregrino et cive Romana peregrinus nascitur, quoniam lex
Mensia [“Minicia” has been read in the Veronese palimpsest of the
parallel passage of Gaius i. 78, ed. Krueger and Studemund] ex alterutro
peregrino natum deterioris parentis conditionem sequi jubet.”

[510] Or, in the Principate, an administrative act. See the section on
the powers of the Princeps.

[511] p. 6.

[512] Beloch _Der Italische Bund_ pp. 101, 102.

[513] Tac. _Ann._ xi. 25; Beloch op. cit. p. 78. According to Beloch
(l.c.) a comparison between the ante-imperial and post-imperial census is
vitiated by the fact that the _aerarii_ were excluded from the former,
included in the latter. See the section on the censor.

[514] _Lex Acilia Repetundarum_ 1. 76.

[515] Cic. _pro Balbo_ 10, 25 “quod iis ... liceat, si populus Romanus
permiserit, ut ab senatu, ab imperatoribus nostris, civitate donentur.”

[516] Cic. _Brut._ 20, 79; _pro Balbo_ 21, 48.

[517] See the section dealing with the _comitia_.

[518] Suet. _Aug._ 40; Senec. _de Vit. Beat._ 24.

[519] It implied the _imperium_. At Rome these magistrates would be
consul, praetor, dictator, or interrex; in the provinces the governors.

[520] Gaius iv. 16.

[521] “Praetor addicit libertatem.” See Cic. _ad Att._ vii. 2, 8.

[522] For the censor as such had no power to confer freedom (Mommsen
_Staatsr._ ii. p. 374). Cicero (_de Orat._ i. 40, 183) mentions the
juristic controversy whether the slave was free from the moment of the
announcement or from the _lustrum_, which gave validity to the censorian
ordinances. _Servi publici_ were manumitted by the magistrates, but
whether by the consul only or by any magistrate is unknown (Momms.
_Staatsr._ i. p. 321). The greatest instance of state emancipation is
that of the _Volones_ in 214 B.C. (Liv. xxiv. 16).

[523] In the first case it is called _directa libertas_ (_Dig._ 40, 4,
35), in the second _libertas fidei commissa_ (Dig. 40, 4, 11).

[524] Theophilus (i. 5, 4) calls them φυσικοὶ τρόποι ἐλευθερίας.

[525] Suet. _Claud._ 24 (Claudius said that App. Caecus, censor in 312
B.C., had chosen the sons of _libertini_ for the Senate) “ignarus,
temporibus Appii et deinceps aliquamdiu, ‘libertinos’ dictos, non ipsos,
qui manu mitterentur, sed ingenuos ex his procreatos.”

[526] Justin. _Inst._ i. 4 “qui statim ut natus est liber est”; Cic.
_de Nat. Deor._ iii. 18, 45 “in jure civili, qui est matre libera,
liber est.” This is the sense in which Cincius (_ap. Fest._ p. 241) and
Livy (x. 8) declare _patricius_ to have been originally equivalent to
_ingenuus_. See p. 5.

[527] The _s(ine) p(atre) filii_ of Gaius (i. 64) and Plutarch (_Qu.
Rom._ 103) was a conjecture of the jurists based on the abbreviated form
of _sp(urii) filii_ (Momms. _Staatsr._ iii p. 72 n. 4). _Spurii filii_
was the official designation, while _liberi naturales_ denoted the
natural relationship to the father (Meyer _Der römische Concubinat_).

[528] p. 35.

[529] p. 131.

[530] p. 45.

[531] p. 98.

[532] _Lex Coloniae Genetivae_ (a foundation of Caesar’s in 44 B.C. at
Osuna in Spain) c. 98 “Quamcumque munitionem decuriones hujusce coloniae
decreverint ... eam munitionem fieri liceto, dum ne amplius in annos
singulos ... operas quinas ... decernant.”

[533] The other chief personal burdens are guardianship (_tutela_) and
serving on juries; but the consideration of both belongs rather to civil
and criminal than to public law.

[534] p. 69.

[535] p. 74.

[536] p. 73.

[537] Liv. xxxiii. 42 (196 B.C.) “Pecunia opus erat, quod ultimam
pensionem pecuniae in bellum conlatae persolvi placuerat privatis.” Cf.
v. 20 and Plin. _H.N._ xxxiv. 6.

[538] Cic. _de Off._ ii. 22, 76 “Paulus tantum in aerarium pecuniae
invexit, ut unius imperatoris praeda finem attulerit tributorum”;
Plutarch, _Paul._ 38.

[539] _Lex Acilia Repetundarum_ c. 79; amongst the rewards granted to a
Latin who prosecuted successfully under this law are “militiae munerisque
poplici in sua quojusque ceivitate vocatio immunitasque.”

[540] Cic. _pro Caec._ 34.

[541] Cic. l.c.; _de Orat._ i. 40.

[542] Cic. _pro Caec._ 34; Dionys. iv. 15

[543] p. 32.

[544] Eisele _Beiträge zur römischen Rechtsgeschichte_ p. 205.

[545] Gaius i. 159-162; Ulp. xi. 10-13.

[546] p. 31.

[547] For the form of _deditio_ see Liv. ix. 10; App. _de Reb. Hisp._ 83.
The references are to the two great historic instances at the Caudine
Forks (321) and Numantia (137).

[548] Liv. xxxviii. 42 (188 B.C.) “eo anno L. Minucius Myrtilus et
L. Manlius, quod legatos Carthaginienses pulsasse dicebantur, jussu
M. Claudii praetoris urbani per fetiales traditi sunt legatis, et
Carthaginem avecti.”

[549] ib. v. 36; Suet. _Caes._ 24.

[550] p. 138.

[551] p. 91.

[552] Gaius i. 159.

[553] Cic. _pro Balbo_ 11, 28; _pro Caec._ 34, 100.

[554] p. 55.

[555] Ulp. _Reg._ xi. 13 “per quam, et civitate et libertate salva,
status dumtaxat hominis mutatur.” Cf. Gaius i. 162.

[556] p. 32.

[557] i.e. by _adrogatio_, see p. 32.

[558] Justin. _Inst._ i. 12, 5 “postliminium fingit eum qui captus est
semper in civitate fuisse”; Gaius i. 129 “hi qui ab hostibus capti sunt,
si reversi fuerint, omnia pristina jura recipiunt.”

[559] p. 18.

[560] Cic. _pro Mur._ 12, 27 “mulieres omnes propter infirmitatem
consilii majores in tutorum potestate esse voluerunt; hi invenerunt
genera tutorum, quae potestate mulierum continerentur.”

[561] By the _jus postliminii_; see p. 140.

[562] Plaut. _Capt. Prol._ 34.

[563] Liv. x. 42, 46.

[564] Caesar _B.G._ iii. 16.

[565] Polyb. xxx. 15 (Paulus) πέντε δὲ καὶ δέκα μυριάδας ἀνθρώπων
ἐξανδραποδίσασθαι.

[566] Strabo xiv. p. 668.

[567] Marquardt _Privatleben_ pp. 135 sq.

[568] Appian _B.C._ i. 8.

[569] Gaius in _Dig._ 50, 17, 133 “melior condicio nostra per servos
fieri potest, deterior fieri non potest.”

[570] Gaius iv. 69-74; Justin. _Inst._ iv. 7.

[571] Cic. _Part. Orat._ 34, 118; _pro Cluent._ 63, etc. As, however, the
master’s consent had to be obtained, the evidence and torture of slaves
in the public courts were rare. In domestic jurisdiction the inquisition
on slaves was held before a family _consilium_.

[572] Gaius iii. 210, 217, 222, 223.

[573] Cato _R.R._ 5; Dionys. vii. 69.

[574] Cic. _ad Fam._ iv. 12; Tac. _Ann._ xiv. 42.

[575] Liv. xliii. 16; Gell. xiii. 13. For _servi publici_ in the
municipal towns see _Lex Coloniae Genetivae_ c. 62.

[576] _Actor publicus_, in Rome (Tac. _Ann._ ii 30); in the municipal
towns (Plin. _Ep._ vii, 18, 2).

[577] _Libertinus_ describes the freedman’s political position,
_libertus_ his relation to his master.

[578] Ulp. in _Dig._ 1, 16, 9, 3.

[579] Macer in _Dig._ 48. 2, 8; Paul. _Sent._ v. 15, 3.

[580] Ulp. in _Dig._ 2, 4, 4, 1 “Praetor ait ‘parentem, patronum,
patronam, liberos parentes patroni patronae in jus sine permissu meo ne
quis vocet.’”

[581] Gaius iii. 40-44.

[582] Ulp. in _Dig._ 38, 2, 1, 1. Mommsen (_Staatsr._ iii. p. 433) thinks
that the author of the change was the famous P. Rutilius Rufus, consul
105 B.C.

[583] Suet. _Caes._ 48; Val. Max. 6, 1, 4. Willems (_Droit Public_ i.
p. 125 n. 8) remarks that there is nothing to show that this power was
exercised over _justi liberti_. The freedmen so punished may have been
informally manumitted. For the relegation of a freedman by his _patronus_
see Tac. _Ann._ xiii 26.

[584] Cf. Plut. _Poplic._ 7. Plutarch, in this story of the imaginary
freedman Vindicius, represents his class as having no voting rights at
the beginning of the Republic. Appius Claudius (312 B.C.), he says, first
gave them ἐξουσίαν ψήφου: but he does not state the assemblies in which
this right was exercised.

[585] See the section on the censor (p. 223).

[586] Liv. ix. 46.

[587] ib.; Val. Max. ii. 2, 9. Nothing is said about their division
into _classes_; according to the arrangement of the reformed _comitia
centuriata_ (see the section on the _comitia_), this restriction to four
tribes would have given them the command of only forty centuries.

[588] Liv. xlv. 15.

[589] _Auct. de Vir. Ill._ 72 (M. Aemilius Scaurus) “consul legem de
sumptibus et libertinorum suffragiis tulit”; Willems _Droit Public Rom._
p. 123.

[590] Dio Cass. xxxvi. 25.

[591] Liv. _Ep._ 84.

[592] Exceptions due to the stress of times are mentioned for the years
296 (Liv. x. 21) and 217 (Liv. xxii. 11). Even in the social war they
formed cohorts separate from the legions.

[593] First mentioned in 217 B.C. (Liv. xxii. 11).

[594] See the section on the magistracy (p. 184).

[595] e.g. the institution of the censor, praetor, curule aediles,
and (although they are not a part of the developed constitution), the
consular tribunes.

[596] p. 121.

[597] Cic. _ad Att._ ix. 9, 3 “in libris (i.e. the augural books) habemus
non modo consules a praetore, sed ne praetores quidem creari jus esse.”

[598] p. 47.

[599] p. 47.

[600] See the section on the magistracy (p. 165).

[601] Cic. _de Leg._ iii. 3, 9 “ast quando consoles magisterve populi
(i.e. dictator) nec escunt, auspicia patrum sunto, ollique ex se produnto
qui comitiatu creare consules rite possint”; _ad Brut._ i. 5, 4 “dum unus
erit patricius magistratus, auspicia ad patres redire non possunt.”

[602] In 43 B.C., on the deaths of Hirtius and Pansa, this communication
could not be made in time. Hence the extraordinary measure of appointing
two _privati_ with _consularis potestas_ to hold the election for the
consulship (Dio Cass, xlvi. 45).

[603] The _senatus consultum_ containing this suggestion might be vetoed
by one of the tribunes. Ascon, _in Milon._ p. 32 “dum ... Pompeius ...
et T. Munatius tr. pl. referri ad senatum de patriciis convocandis qui
interregem proderent non essent passi.”

[604] p. 47.

[605] Liv. v. 31, 8 “interrex creatur M. Furius Camillus.”

[606] The technical expression _prodere interregem_ refers in Republican
times, not only to the appointment of the first interrex by election, but
to the nomination of each of the other _interreges_ by his predecessor
(Liv. vi. 41; v. 31).

[607] Liv. vi. 1; viii. 23.

[608] Cic. _pro Dom._ 14, 38, quoted p. 131.

[609] Willems _le Sénat_ ii. pp. 14, 16.

[610] p. 126.

[611] See Appendix on the _comitia tributa_.

[612] p. 89.

[613] The power of this body was much increased by the long wars waged in
West and East; but its ascendency was assured before these wars began.
See the section on the Senate.

[614] For an instance of its cumulative use see Cic. _in Verr._ act. i.
13, 37 “erit tunc consul Hortensius cum summo imperio et potestate”; for
one of its disjunctive uses see _Dig._ 4, 6, 26, 2 “consulem praetorem
ceterosque qui imperium potestatemve quam habent.”

[615] p. 79.

[616] Mommsen (_Staatsr._ i. p. 203) denies the right of the quaestor
to issue edicts; but the absence of distinct mention of quaestorian
edicts is no ground for denying him what appears to have been a common
magisterial right.

[617] For the pro-magistrates see the sections on the consuls and the
provinces.

[618] In the course of the Republic _imperium_ came to denote _par
excellence_ command abroad, as was natural, since here alone the power
was unshackled. Hence the phrase _cum imperio_ esse descriptive of a
magistrate who can assert this latent power (Cic. _ad Fam._ viii. 8, 8
“qui praetores fuerunt neque in provincia cum imperio fuerunt”) and the
opposition between _magistratus_ and _imperium_. _Lex Tab. Bant._ 1. 16
“quibus quisque eorum mag(istratum) imperiumve inierit”; _Lex Acilia
Rep._ 1. 8 “dum magi(stratum) aut imperium habebunt.”

[619] Liv. iii. 42; xxviii. 45.

[620] Polyb. vi. 19, 21. The tenor of the oath was (c. 21) ἧ μὴν
πειθαρχήσειν καὶ ποιήσειν τὸ προσταττόμενον ὑπὸ τῶν ἀρχόντων κατὰ δύναμιν.

[621] The soldier is said “jurare in verba consilium” (Liv. ii. 52).

[622] Liv. iii. 20.

[623] ib. viii. 34 “latrocinii modo caeca et fortuita pro sollemni et
sacrata militia sit.”

[624] Dionys. xi. 43.

[625] p. 79.

[626] See the section on the _intercessio_.

[627] Liv. vii. 5.

[628] ib. xxvii. 36.

[629] _Lex Acilia_ 1. 2.

[630] They were called _Rufuli_ (Liv. vii. 5; Festus p. 260).

[631] Liv. xlii. 31 (171 B.C., commencement of war with Perseus)
“consoles ex senatus consulto ad populum tulerunt, ne tribuni militum eo
anno suffragiis crearentur, sed consulum praetorumque in iis faciendis
judicium arbitriumque esset.” Cf. xliii. 12.

[632] Polyb. vi. 13.

[633] p. 117.

[634] See Greenidge, “The provocatio militiae and provincial
jurisdiction” in _Classical Review_ x. p. 225.

[635] The fact that the delegates and sometimes the crimes were distinct
in the two cases does not make the military jurisdiction of the
_imperator_ differ from his ordinary criminal jurisdiction, as Mommsen
seems to think (_Staatsr._ i. p. 123). For the proofs of unity in the
conception of jurisdiction _militiae_ see the article cited in the last
note.

[636] At the close of the Republic, however, custom dictated that the
governor should send capital cases in which Romans were involved to Rome.
See the section on the provinces.

[637] Tac. _Ann._ iii. 74 “Tiberius ... Blaeso tribuit, ut imperator
a legionibus salutaretur, prisco ergo duces honore, qui bene gesta
republica gaudio et impetu victoris exercitus conclamabantur.” The
earliest instance recorded is that of the elder Scipio Africanus (Liv.
xxvii. 19). At the close of the Republic the title might be conferred by
the Senate. Cic. _Phil._ xiv. 4, 11 (to emphasise the fact that Antonius
was a public enemy Servilius had proposed _supplicationes_) “Sed hoc
primum faciam, ut imperatores appellem eos, quorum virtute ... periculis
... liberati sumus.” For who, he asks, has not been called _imperator_
within the last twenty years “aut minimis rebus gestis, aut plerumque
nullis”? (cf. Cic. _ad Att._ v. 20, 3).

[638] Dio Cass. xxxvii. 40.

[639] For the consular tribune see p. 114.

[640] An important exception is recorded in Liv. vii. 11 (360 B.C.). Here
the consul triumphs after the abdication of the dictator, and the honour
is clearly a concession of the latter.

[641] Liv. xxviii. 9 (207 B.C.).

[642] In this case the lesser honour of an “ovation” was sometimes
granted (Liv. xxvi. 21; xxviii. 9).

[643] Liv. xxxix. 29 (185 B.C.).

[644] Gell. v. 6; Val. Max. ii. 8, 7. In this case, too, the ovation was
sometimes granted, e.g. in the slave-wars of 99 and 71 B.C. (Cic. _de
Orat._ ii. 47, 195; Gell. v. 6). For this reason Caesar’s triumph in 46
was over Gaul, Egypt, Pontus and Africa; that of Augustus in 29 over
Dalmatia and Egypt. In neither case was it held over the citizens whom
they had crushed.

[645] Val. Max. ii. 8, 1.

[646] Liv. xxxiii. 23; xlii. 21.

[647] Mommsen thinks the use of it as well (_Staatsr._ i p. 132), e.g.
that it was in consequence of the absence of the _provocatio_ that the
_cives Romani Campani_ were executed in 271 (Val. Max. ii. 7, 15).

[648] e.g. L. Postumius Megellus in 294 B.C. (Liv. x. 37), App. Claudius
in 143 B.C. (Suet. _Tib._ 2).

[649] “Senatus consulto jussuque populi” (Liv. iv. 20).

[650] Polyb. vi. 15 τοὺς ... θριάμβους ... οὐ δύνανται χειρίζειν
ὡς πρέπει, ποτὲ δὲ τὸ παράπαν οὐδὲ συντελεῖν, ἐὰν μὴ τὸ συνέδριον
συγκατάθηται καὶ δῷ τὴν εἰς ταῦτα δαπάνην.

[651] Liv. xxvi. 21. Cf. Liv. xlv. 35, where the Senate’s request to the
tribune is made through a praetor. One cannot say in this case that the
_imperium_ is conferred for the day, since the Plebs had no power to
confer the _imperium_.

[652] ib. xxviii. 38; cf. xxxi. 20.

[653] e.g. the two triumphs of Pompeius in 80 and 71 B.C. See Cic. _pro
Lege Man._ 21, 62 “quid tam incredibile, quam ut iterum eques Romanus ex
senatus consulto triumpharet?”

[654] A shortened form of _conventio_. Cf. _S. C. de Bacchanalibus_
(Bruns _Fontes_) l. 23 “haice uti in conventionid exdeicatis.”

[655] Gell. xiii. 16 “cum populo agere est rogare quid populum, quod
suffragiis suis aut jubeat aut vetet, contionem autem habere est verba
facere ad populum sine ulla rogatione.”

[656] It was, e.g., the mode in which the people were summoned to witness
public executions outside the Pomerium (Cic. _pro Rab._ 4, 11; Tac.
_Ann._ ii. 23).

[657] _S. C. de Bacch._ quoted p. 158.

[658] Liv. xxxix. 15 “contione advocata cum sollemne carmen precationis,
quod praefari priusquam populum adloquantur magistratus solent,
peregisset, consul ita coepit.”

[659] Messala ap. Gell. xiii. 16 includes the _magistratus minores_.
Mommsen, guided by the (in this case probably false) analogy of the _jus
cum populo agendi_, would exclude the aediles and quaestors (_Staatsr._
i. p. 200).

[660] Gell. l.c.

[661] Cic. _ad Att._ iv. 1, 6 “habui contionem, omnes magistratus praeter
unum praetorem et duos tribunos pl. dederunt”; i. 14, 1 “Pisonis consulis
impulsu levissimus tribunus pl. Fufius in contionem producit Pompeium”;
ii. 24, 3 “Caesar is qui olim, praetor cum esset, Q. Catulum ex inferiore
loco jusserat dicere, Vettium in rostra produxit.”

[662] Sall. _Jug._ 34 “ubi Memmius (a tribune) dicendi finem fecit et
Jugurtha respondere jussus est, C. Baebius tribunus plebis ... regem
tacere jubet.”

[663] See note 1.

[664] Cic. _de Leg._ iii. 4, 10 “cum populo patribusque agendi jus esto
consuli praetori magistro populi equitumque eique quem patres produnt
consulum rogandorum ergo.” For the question whether the praefect of the
city had this right see p. 61; an argument for his possession of it in
the Republic is his right of consulting the Senate.

[665] For the curule aediles see Cic. _in Verr._ i. 12, 36; Val. Max.
viii. 1, 7.

[666] Liv. iii. 24; Dionys. viii. 77.

[667] Liv. xliii. 16 (169 B.C., P. Rutilius tr. pl.) “C. Claudio diem
dixit ... et utrique censori perduellionem se judicare pronunciavit,
diemque comitiis a C. Sulpicio praetore urbano petiit ... absoluto
Claudio, tribunus plebis negavit se Gracchum morari.” Antias ap. Gell.
vi. 9 “Licinius tribunus plebi perduellionem ei diem dixit et comitiis
diem a M. Marcio praetore peposcit.”

[668] Whether the tribune presided over this assembly is uncertain. When
the tribune in Livy (l.c.) breaks up such an assembly the act may simply
refer to his retirement as a prosecutor (see last note).

[669] Liv. x. 23; xxv. 2; xxxiii. 42; Gell. x. 6.

[670] _De Leg._ iii. 4, 10, cited p. 160.

[671] Gell. xiv. 7 “(Varro ponit) per quos more majorum senatus haberi
soleret eosque nominat ‘dictatorem, consules, praetores, tribunos plebi,
interregem, praefectum urbi’ ... ‘deinde extraordinario jure tribunos
quoque militares qui pro consulibus fuissent ... jus consulendi senatum
habuisse.’”

[672] This right of the tribunes originated later than 304 B.C.; see p.
127.

[673] Liv. xxii. 30; xl. 52. Cf. Wilmanns n. 27 “L. Mummi. L. F. Cos.
duct(u) auspicio imperioque ejus Achaia capt(a) Corinto deleto Romam
redieit triumphans.”

[674] p. 39.

[675] Festus p. 261 “quinque genera signorum observant augures publici,
ex coelo, ex avibus, ex tripudis, ex quadripedibus, ex diris.”

[676] _Silentium_ is defined negatively; see Cic. _de Div._ ii. 34, 71
“id enim silentium dicimus in auspiciis, quod omni vitio caret.” Cf.
Festus p. 351.

[677] e.g. the fall of the cap from the head of the sacrificing priest
(Val. Max. i. 1, 5). Cf. Festus p. 64.

[678] Val. Max. i. 1, 5 “occentusque soricis auditus Fabio Maximo
dictaturam ... deponendi causam praebuit.”

[679] ib. 4, 2 (the omens that T. Gracchus encountered when seeking the
tribunate).

[680] ib. 4, 7.

[681] Plut. _C. Gracch._ 11.

[682] Cic. _de Div._ ii. 34, 72 “Illi autem, qui in auspicium adhibetur,
cum ita imperavit is, qui auspicatur ‘Dicito, si silentium esse
videbitur’; nec suspicit nec circumspicit: statim respondet, ‘silentium
esse videri.’”

[683] Plin. _H.N._ xxviii. 2, 11.

[684] Cic. _de Div._ ii. 35, 77.

[685] Liv. i. 36; Cic. _de Leg._ iii. 3, 9.

[686] Cic. _de Div._ ii. 33, 71 “haec certe quibus utimur, sive tripudio
sive de coelo, simulacra sunt auspiciorum, auspicia nullo modo.”

[687] Liv. xxiii. 31 (215 B.C., Marcellus) “cui ineunti consulatum cum
tonuisset, vocati augures vitio creatum videri pronunciaverunt.”

[688] Cic. _de Div._ ii. 35, 74 “Fulmen sinistrum auspicium optimum
habemus ad omnes res, praeterquam ad comitia.”

[689] ib. i. 15, 27 “nam nostri quidem magistratus auspiciis utuntur
coactis. Necesse est enim, offa objecta, cadere frustum ex pulli ore,
cum pascitur. (28) Quod autem scriptum habetis, tripudium fieri, si ex
ea quid in solidum ceciderit: hoc quoque, quod dixi, coactum, tripudium
solistimum dicitis.” Cf. ii. 34, 72; 35, 73. For their use in camp see
Cic. _de Div._ i. 35, 77; Val. Max. i. 4, 3. In the last passage the
incident connected with P. Claudius Pulcher (249 B.C.) is described.

[690] Messala ap. Gell. xiii. 15 “Patriciorum auspicia in duas sunt
divisa potestates. Maxima sunt consulum, praetorum censorum....
Reliquorum magistratuum minora sunt auspicia.”

[691] Gell. iii. 2.

[692] “Oriens de nocte silentio” (Liv. viii. 23).

[693] That in the camp, by means of the sacred chickens, had naturally to
be exempted from these formalities.

[694] Cic. _de Nat. Deor._ ii. 4, 11; these tents were called _minora
templa_ (Festus p. 157).

[695] The manipulation of auspices at the end of the Republic had caused
the skilled assistant to be neglected (Cic. _de Div._ ii. 34, 71 “apud
majores nostros adhibebatur peritus, nunc quilibet”).

[696] Liv. ix. 39, etc.

[697] See the section dealing with the powers of the people. The _vitium_
effected the elections even of tribunes of the Plebs—but purely as a
result of _auspicia oblativa_. See Liv. x. 47 (293 B.C.) “exacto jam anno
novi tribuni plebis magistratum inierant: hisque ipsis, quia vitio creati
erant, quinque post dies alii subfecti.”

[698] ib. v. 31, etc.

[699] Mommsen thinks that the auspices of the consuls might have
alternated, like their fasces, from month to month (_Staatsr._ i. p. 95).

[700] Thus before Cannae Varro takes the field in spite of the ill-omens
which the observation of his colleague Paulus had revealed (Liv. xxii.
42).

[701] Val. Max. ii. 8, 2.

[702] Cic. _de Leg._ iii. 3, 6 “magistratus nec oboedientem et noxium
civem multa, vinculis, verberibus coerceto, ni par majorve potestas
populusve prohibessit, ad quos provocatio esto.” A _lex Porcia_
prohibited the scourging of a Roman citizen by a _gravis poena_ (Liv.
x. 9); but that technically it merely submitted the threat of such
_coercitio_ to appeal is shown by the fact that the law is classed
amongst those regulating the _provocatio_ (Cic. _de Rep._ ii. 31, 54).

[703] pp. 79, 109.

[704] Liv. x. 9 “cum eum qui provocasset virgis caedi securique necari
vetuisset, si quis adversus ea fecisset, nihil ultra quam improbe factum
adjecit.” The meaning of this sanction has been much disputed: it may
mean “incapable of making a will,” on the analogy of “improbus (i.e. qui
probare non potest) intestabilisque esto.” Mommsen (_Strafrecht_ p. 632)
takes the expression to mean that the act of the magistrate would be
regarded as “unjustified,” i.e. as an ordinary criminal offence.

[705] Cic. _de Rep._ ii. 31, 54.

[706] p. 95.

[707] Dio Cass. liii. 17.

[708] Plin. _H.N._ vii 44; Liv. _Ep._ 59.

[709] Liv. ii 55; vii. 4.

[710] The _virgis caedi_ in the third _lex Valeria_ (note 2) probably
refers to scourging as well as to death by the rod.

[711] Capito ap. Gell. iv. 10 “Caesar consul viatorem vocavit eumque
(Catonem), cum finem non faceret (of speaking in the Senate) prendi
loquentem et in carcerem duci jussit.” Cf. Suet. _Caes._ 17.

[712] The earliest recorded case is in Liv. _Ep._ xlviii. (Momms.
_Staatsr._ i. p. 154). A typical instance belonging to the year 60 B.C.
is described in Cic. _ad Att._ ii. 1, 8; Dio Cass. xxxvii. 50.

[713] It was thus that the imprisonment of M. Bibulus, consul in 59 (Cic.
_in Vat._ 9, 21), and of M. Crassus, consul in 55 (Dio Cass. xxxix. 39),
was prevented.

[714] The annals introduce bail as early as the trial of Kaeso Quinctius
in 461 B.C. (Liv. iii. 13).

[715] Liv. xxv. 4 (212 B.C.).

[716] Mommsen (_Staatsr._ i. p. 143 n. 1) takes the view that the
quaestor had no power of _coercitio_ through _multa_ and _pignus_. For an
opposite opinion see Karlowa _Rechtsgesch._ i. p. 171 and Huschke _Multa_
p. 36.

[717] Dionys. x. 50 ἐπὶ τῆς λοχίτιδος ἐκκλησίας νόμον ἐκύρωσαν (the
consuls Sp. Tarpeius and A. Aternius) ἵνα ταῖς ἀρχαῖς ἐξῇ πάσαις τοὺς
ἀκοσμοῦντας ἤ παρανομοῦντας εἰς τὴν ἑαυτῶν ἐξουσίαν ζημιοῦν· τέως γὰρ οὐχ
ἅπασιν ἐξῆν ἀλλὰ τοῖς ὑπάτοις μόνοις. Cf. Cic. _de Rep._ ii. 35, 60.

[718] Dionys. l.c.; Gell. xi. 1. Dionysius (probably by an error of the
copyist) represents the fine as being two oxen or thirty sheep.

[719] Cic. _de Rep._ ii. 35, 60 “levis aestimatio pecudum in multa lege
C. Julii, P. Papirii consulum constituta est”; Liv. iv. 30 “legem de
multarum aestimatione pergratam populo ... ipsi (the consuls Julius and
Papirius) praeoccupaverunt ferre”; Gell. xi. 1 “in oves singulas aeris
deni, in boves aeris centeni ... Suprema multa est ejus numeri, ... ultra
quem multam dicere in dies singulos jus non est.” Gellius, however,
attributes the pecuniary estimate to the _lex Aternia_.

[720] The view has been sometimes held that the _multa suprema_ was one
beyond which the magistrate could not under any circumstances go. In this
case there is no known limit at which the appeal became possible. That
there was one, however, is shown by the _provocatio ab omni judicio_
allowed by the Twelve Tables (Cic. _de Rep._ ii. 31, 54. See p. 106).

[721] p. 246.

[722] _Lex Tab. Bant._ 1. 12 “Sei quis mag(istratus) multam inrogare
volet [_quei volet, dum minoris_] partus familias taxsat, liceto.”

[723] e.g. in case of continued resistance to the veto. See Liv. xliii.
16 (169 B.C., P. Rutilius) “Ti Gracchi primum bona consecravit, quod in
multa pignoribusque ejus, qui tribunum adpellasset, intercessioni non
parendo, se in ordinem coegisset”; or for a supposed stigma inflicted
by a censor on a tribune (Plin. _H.N._ vii. 44). Cicero, _pro Domo_ 47,
123, mentions the consecration of the goods of L. Metellus by C. Atinius
(131 B.C., Plin. l.c.) as an instance of “furor tribuni plebis, ductus ex
nonnullis perveterum temporum exemplis.” P. Clodius (58 B.C.) consecrated
the goods of Cicero and of Gabinius the consul (ib. § 124).

[724] _Lex Quinctia de aquaeductibus_ (Bruns _Fontes_) l. 20 “tum is
praetor ... multa pignoribus cogito coerceto.”

[725] Cic. _de Orat._ iii. 1, 4, “pignora caedere” or “concidere”; the
destruction was performed as an example “in conspectu populi Romani.”

[726] _Auct. de Vir. Illustr._ 72, 6. Cf. the procedure of the consul
Servilius against the revolutionary praetor Caelius Rufus in 48 B.C. Dio
Cass. xlii. 23 τόν τε δίφρον αὑτοῦ συνέτριψεν.

[727] Varro ap. Gell. xiii. 12 “vocationem (habent), ut consoles et
caeteri, qui habent imperium; prensionem, ut tribuni plebis et alii, qui
habent viatorem; neque vocationem neque prensionem, ut quaestores et
ceteri, qui neque lictorem habent neque viatorem. Qui vocationem habent,
idem prendere, tenere, abducere possunt.”

[728] p. 94.

[729] See Varro ap. Gell. l.c.

[730] Aediles were used in the trial of Coriolanus (Dionys. vii. 26,
see p. 98); Gracchus sent one of his _viatores_ to drag his colleague
Octavius from the Rostra (Plut. _Ti. Gracch._ 12). Cf. Liv. xxv. 4 (case
of Postumius 212 B.C.) “tribuni ... ni vades daret ... prehendi a viatore
... jusserunt.”

[731] Varro, as an antiquarian, refused to obey such a summons on the
ground of its illegality (Gell. xiii. 12.)

[732] Donatus _ad Ter. Ad._ iv. 2, 9 “qui malam rem nuntiat, obnuntiat,
qui bonam adnuntiat; nam proprie obnuntiare dicuntur augures, qui aliquid
mali ominis scaevumque viderint.” Cf. Cicero _Phil._ ii. 33, 83; _de
Div._ i. 16, 29 (_dirarum obnuntiatio_).

[733] The plebeian magistrates sometimes watched for such signs, for
purposes of obstruction, and were then improperly said _servare de coelo_
(Cic. _ad Att._ iv. 3, 3). The words are properly used only of the
_spectio_. See Greenidge, “The Repeal of the Lex Aelia Fufia” in _Class.
Rev._ vii. p. 158.

[734] p. 163.

[735] Cic. _pro Sest._ 36, 78; Dio Cass. xxxviii. 13. To discuss, as has
been done, whether the patrician magistrates’ _obnuntiatio_ was valid
against the tribunes is to raise rather an idle question. The _lex Aelia
Fufia_ could not have artificially regulated religious belief, and the
Plebs was as susceptible to _auspicia_ as the Populus (see p. 39).

[736] Gell. xiii. 15; _minor_ here simply means “inferior to the consul.”

[737] They regulated the precedence of the _comitia_ for elections and
for laws (Cic. _ad Att._ i. 16, 13).

[738] Cic. _in Pis._ 4, 9; _de Prov. Con._ 19, 46; _in Vat._ 7, 18.

[739] Cic. _Phil._ ii. 32, 80 and 38, 99; _ad Att._ iv. 9, 1; 16, 7, etc.
See _Class. Rev._ vii. p. 160.

[740] The exercise of the _coercitio_ might of course be vetoed, and in
this case the prohibition was of no avail. See Liv. ix. 34 (n. 7).

[741] p. 159.

[742] Liv. xliii. 16 (169 B.C., P. Rutilius tr. pl.) “C. Claudio diem
dixit, quod contionem ab se avocasset.”

[743] ib. xxvii. 5 (210 B.C.). The consul declined to question the people
on the nomination of a dictator, “quod suae potestatis esset,” and
forbade the praetor to do so.

[744] p. 172.

[745] Cf. the story in Suet. _Tib._ 2, “Etiam virgo vestalis fratrem
(App. Claudius, consul 143 B.C.) injussu populi triumphantem, adscenso
simul curru, usque in Capitolium prosecuta est, ne vetare aut intercedere
fas cuiquam tribunorum esset.”

[746] Liv. ix. 33-34. P. Sempronius, tribune, attempted to compel App.
Claudius, who was trying to prolong his censorship beyond eighteen
months, to abdicate. He tried to imprison the censor but was resisted by
the veto of three colleagues.

[747] _Auct. de vir. illustr._ 72, 6 (for the occasion see p. 171); the
consul “ne quis ad eum (praetorem) in jus ire edixit.” Dio Cass. xlii.
23; amongst the other penalties imposed by Servilius Isauricus on Caelius
Rufus (see p. 171) was the transference of his functions to another
praetor, τά τε προσήκοντα τῇ ἀρχῇ αὐτοῦ ἄλλῳ τῳ τῶν στρατηγῶν προσέταξε.

[748] Cic. _in Verr._ iii. 58, 134 “quaestores, legates, praefectos,
tribunos suos, multi missos fecerunt et de provincia decedere jusserunt,
quod illorum culpa se minus commode audire arbitrarentur, aut quod
peccare ipsos aliqua in re judicarent.”

[749] Liv. iii. 27; vii. 9.

[750] _C.I.L._ vi. n. 895.

[751] Liv. iii. 3; Cic. _Phil._ v. 12, 31.

[752] Liv. iii. 5; vi. 7; Cic. l.c.

[753] Mommsen conjectures that, on the occasion of every public funeral
in the forum, a short _justitium_ was declared (_Staatsr._ i. p. 251 n.
4).

[754] Liv. x. 21.

[755] Cic. _de Har. Resp._ 26, 55 “justitium edici oportere,
jurisdictionem intermitti, claudi aerarium, judicia tolli.” Cf. Plut.
_Ti. Gracch._ 10; Cic. _pro Plancio_ 14, 33.

[756] Liv. vi 7.

[757] Cic. _Brut._ 89, 304 “exercebatur una lege judicium Varia, ceteris
propter bellum intermissis.”

[758] p. 119.

[759] Plut. _Ti. Gracch._ 10.

[760] “(Feriae) imperativae sunt, quas consules vel praetores pro
arbitrio potestatis indicunt” (Macrob. _Saturn._ i. 16, 6).

[761] e.g. by Livy (x. 37).

[762] No instance of such a veto being exercised at Rome is known; but it
is recognised in the municipal law of Salpensa (Bruns _Fontes_) c. 27.

[763] Or _decretum_. The formal difference is slight; by the end of the
Republic _edictum_ is a general, _decretum_ a more special (and generally
judicial) command.

[764] Liv. iv. 55.

[765] Caes. _Bell. Civ._ iii. 20 (Caelius Rufus) “tribunal suum juxta C.
Treboni praetoris urbani sellam collocavit, et si quis appellavisset ...
fore auxilio pollicebatur.” For the consequent necessity of the presence
of the tribunes in Rome see p. 94.

[766] Thus Verres, who was _praetor urbanus_, had his decisions vetoed by
Piso, who was probably _praetor peregrinus_, in cases where Verres had
decided contrary to his own edict. Cic. _in Verr._ i. 46, 119; cf. Caes.
l.c.

[767] Of the four private-law speeches of Cicero, two, those for
Quinctius and Tullius, show the request for tribunician interference with
the praetor’s jurisdiction. Cf. Cic. _Acad. Prior._ ii. 30, 97 “postulant
ut excipiantur haec inexplicabilia. Tribunum aliquem censeo adeant (_al._
videant); a me istam exceptionem nunquam impetrabunt.”

[768] Liv. xxxiii. 42.

[769] The tribunes promise “cognituros se de quo appellati essent” (Liv.
xlii. 32).

[770] Liv. xlii. 33.

[771] Ascon. _in Milon._ p. 47.

[772] p. 174.

[773] Liv. iv. 50; xxv. 2.

[774] Cic. _de Leg. Agr._ ii. 12, 30.

[775] Plut. _Ti. Gracch._ 10.

[776] Cic. _ad Att._ iv. 16, 6; Ascon. _in Cornel._ p. 58.

[777] Liv. xlv. 21 “cum ita traditum esset, ne quis prius intercedat
legi, quam privatis suadendi dissuadendique legem potestas facta esset.”

[778] Momms. _Staatsr._ i p. 285.

[779] Liv. xxvii. 6.

[780] Cic. _pro Sest._ 31, 68.

[781] ib. 34, 74.

[782] Cic. _ad Fam._ x. 12, 3 and 4.

[783] Liv. xxx. 43. Consular intercession against the praetor was
unnecessary, since the praetor did not usually summon the Senate while
the consul was at Rome.

[784] Val. Max. ii. 2, 7 “Illud quoque memoria repetendum est, quod
tribunis plebis intrare curiam non licebat, ante valvas autem positis
subselliis decreta patrum attentissima cura examinabant, ut, si qua
ex eis improbassent, rata esse non sinerent. Itaque veteribus senatus
consultis C. litera subscribi solebat, eaque nota significabatur illa
tribunos quoque censuisse.” In _S.C.C._ translated into Greek it appears
as ἔδοξεν (_S.C.C. de Thisbaeis_, Bruns _Fontes_). In those given in
Cic. _ad Fam._ viii. 8, 6, the letters “i. n.” (sometimes interpreted
“intercessit nemo”) are probably a corruption for _censuere_.

[785] Momms. _Staatsr._ i. p. 282 n. 7; combated by Willems _Le Sénat_ p.
200 n. 2.

[786] Liv. xxvi. 26; xxx. 40; cf. xlii. 10 “Popillius ... prae se ferens
si quid decernerent, intercessurum, collegam deterruit.”

[787] Val. Max. ii. 2, 7.

[788] Cic. _ad Fam._ x. 12, 3.

[789] Liv. xxxvi. 40.

[790] Cic. _ad Fam._ viii. 8, 6 “qui impedierit prohibuerit, eum senatum
existimare contra rem publicam fecisse.”

[791] Cic. _de Prov. Con._ 8, 17; _pro Domo_ 9, 24. Intercession in
jurisdiction and administration is sometimes forbidden in municipal laws:
_Lex Rubria_ i. 50; _Lex Ursonensis_ c. 72 (Bruns _Fontes_).

[792] Varro ap. Gell. xiii. 13 “Qui potestatem neque vocationis populi
viritim habent neque prensionis, eos magistratus a privato in jus quoque
vocari est potestas.” The context shows that they were practically as
exempt as the higher magistrates.

[793] Nothing is known of the early history of _peculatus_. The word
itself, “the misappropriation of cattle,” which had been collected as
fines, shows the antiquity of the offence described by Varro (_L.L._
v. 95) as _peculatus publicus_. For the early procedure see Mommsen
_Strafrecht_ p. 768.

[794] In Polybius’ time bribery was a capital offence at Rome (Polyb. vi
56).

[795] Polyb. vi. 14. The people are often judges of money penalties,
when the offence can be valued in money, καὶ μάλιστα τοὺς τὰς ἐπιφανεῖς
ἐσχηκότας ἀρχάς, θανάτου δὲ κρίνει μόνος. Cf. c. 15. The greatest source
of the power of the people is that ἀποτιθεμένους τὴν ἀρχὴν ἐν τούτῳ δεῖ
τὰς εὐθύνας ὑπέχειν τῶν πεπραγμένων.

[796] Liv. xxiv. 43 (214 B.C., the tribune Metellus prosecutes the
censors Furius and Atilius) “Sed novem tribunorum auxilio vetiti causam
in magistratu dicere dimissique fuerant”; Suet. _Caes._ 23 (Caesar on
leaving for Gaul) “a L. Antistio, tr. pl., postulatus, appellato demum
collegio, obtinuit, cum reipublicae causa abesset, reus ne fieret.” In
the case of the trial of the censors of 169 B.C. (Liv. xliii 16) the
accused agree to be put on their trial during their tenure of office.

[797] Liv. xxix. 22 (204 B.C.). Pleminius and his colleagues were
“producti ad populum ab tribunis.”

[798] ib. vi. 1 “Q. Fabio ... ab Cn. Marcio tribuno plebis dicta dies
est, quod legatus in Gallos, ad quos missus erat orator, contra jus
gentium pugnasset.”

[799] ib. _Ep._ 69 “L. Appuleius Saturninus ... Metello Numidico, eo quod
in eam (the agrarian law) non juraverat, diem dixit.”

[800] ib. xxv. 3 (Postumius a _publicanus_, for shipwrecking and false
reports of shipwreck).

[801] e.g. waging war without authorisation (Ascon. _in Cornelian_. p.
80, 104 B.C.), disgraceful flight imperilling the safety of others (Liv.
xxvi. 2, 211 B.C.).

[802] Exceeding the legal duration of a magistracy, in this case the
dictatorship (Cic. _de Off._ iii. 31, 112). The instance, though typical,
is not historic.

[803] Liv. xliii. 7, 8 (170 B.C.).

[804] Tac. _Ann._ xi. 22 “apud majores ... cunctis civium, si bonis
artibus fiderent, licitum petere magistratus.”

[805] Festus p. 231 “plebeium magistratum neminem capere licet, nisi qui
ex plebe est.” Cf. Suet. _Aug._ 10.

[806] This seems shown by Suet. _Claud._ 24 (see p. 135).

[807] Momms. _Staatsr._ i. p. 488. Exceptional elections of the sons of
freedmen are found in 304 B.C. (Liv. ix. 46, Cn. Flavius (see p. 185) as
aedile) and in the year 100 B.C. (App. B.C. i. 33).

[808] _Lex Julia Municipalis_ (Bruns _Fontes_) l. 92 “in castreis inve
provincia.”

[809] Plut. _C. Gracch._ 2.

[810] There is also evidence for this as the minimum age at a period
earlier than Cicero’s political career; see Cic. _in Verr._ ii. 49, 122.

[811] In Caesar’s municipal law (45 B.C.) the qualification for a
municipal magistracy is either thirty years of age or a certain length of
service—six years on foot or three on horseback (_L.J.M._ l. 89).

[812] Liv. ix. 46 (of the election of Cn. Flavius to the curule
aedileship) “Invenio in quibusdam annalibus, cum adpareret aedilibus ...
neque accipi nomen, quia scriptum faceret, tabulam posuisse et jurasse,
se scriptum non facturum.”

[813] Cic. _de Off._ i. 42, 150; in later Roman law spoken of as
_vilitas_; see Greenidge _Infamia in Roman Law_ pp. 12, 193.

[814] Cic. _pro Cluent._ 42, 119; Schol. Bob. in Cic. _pro Sulla_ 5, 17,
p. 361 Orell.; Cic. _pro Rosc. Com._ 6, 16; Tertull. _de Spect._ 22;
Ascon. _in orat. in Tog. Cand._ p. 115; _Lex Julia Munic._ l. 104; _Dig._
48, 7, 1. All these passages are discussed in Greenidge _Infamia in Roman
Law_ pp. 18-40 and 187.

[815] Liv. iii. 35 “Ars haec erat, ne semet ipse creare posset; quod
praeter tribunos plebi (et id ipsum pessimo exemplo) nemo unquam
fecisset.” The revolutionary period shows Cinna and Carbo nominating
themselves consuls for two successive years (Liv. _Ep._ 83) and Caesar as
dictator presiding over his own election to the consulship (Caes. B.C.
iii. 1, 1).

[816] Cic. _de Leg. Agr._ ii. 8, 21 “Licinia est lex atque altera
Aebutia, quae non modo eum, qui tulerit de aliqua curatione ac potestate,
sed etiam collegas ejus, cognatos, affines excipit, ne eis ea potestas
curatiove mandetur.”

[817] Liv. vii. 42 “aliis plebiscitis cautum ne quis eundem magistratum
intra decem annos caperet; neu duos magistratus uno anno gereret.” Cf. x.
13.

[818] Cic. _de Leg. Agr._ ii. 9, 24 “ne in iis quidem magistratibus
quorum certus ordo est.”

[819] Liv. xl. 44 “eo anno rogatio primum lata est ab L. Villio tr. pl.,
quot annos nati quemque magistratum peterent caperentque.” It probably
accepted the age of twenty-eight for the quaestorship; the minimum age
for the consulship in the time of Cicero was forty-three (_Phil._ v. 17,
48); that for the praetorship is quite unknown; thirty-five and forty
have been conjectured.

[820] Cic. _ad Fam._ x. 25, 2 “non est annus hic tibi destinatus,
ut, si aedilis fuisses, post biennium tuus annus esset” (i.e. for
election to the praetorship). To be elected in the earliest year, when
one is qualified by the interval, is to attain a magistracy “anno
sibi destinato” (l.c.) or “suo anno” (Cic. _pro Mil._ 9, 24). Momms.
_Staatsr._ i. pp. 527, 529. The principle of at least one year’s interval
seems to have applied to the transition from plebeian to patrician
magistracies in the form that candidature during the holding of any
office was forbidden (Momms. _Staatsr._ i. p. 533).

[821] App. B.C. i. 100 καὶ στρατηγεῖν ἀπεῖπε πρὶν ταμιεῦσαι καὶ ὑπατεύειν
πρὶν στρατηγῆσαι, καὶ τὴν ἀρχὴν τὴν αὐτὴν αὖθις ἄρχειν ἐκώλυσε πρὶν ἒτη
δέκα διαγενέσθαι.

[822] Cic. _ad Fam._ xvi. 12, 3 “se praesentem trinum nundinum
petiturum”; Sallust, _Cat._ 18 “post paulo Catilina pecuniarum
repetundarum reus prohibitus erat consulatum petere, quod intra legitimos
dies profiteri nequiverit.” The interval was probably twenty-four days.
See the section on the _comitia_.

[823] Plut. _Aem. Paul._ 3; _Sull._ 5.

[824] Cic. _de Leg. Agr._ ii. 9, 24 (63 B.C.) “praesentem profiteri
jubet, quod nulla alia in lege unquam fuit, ne in iis quidem
magistratibus quorum certus ordo est”; Suet. _Caes._ 18 (60 B.C.) “cum
edictis jam comitiis ratio ejus haberi non posset ... et ambienti ut
legibus solveretur multi contradicerent, coactus est triumphum, ne
consulatu excluderetur, dimittere.” Cf. Plut. _Caes._ 13.

[825] Dio Cass. xl. 56 (Pompeius) τὸν περὶ τῶν ἀρχαιρεσιῶν νόμον τὸν
κελεύοντα τοὺς ἀρχήν τινα ἐπαγγέλλοντας ἐς τὴν ἐκκλησίαν πάντως ἁπαντᾷν,
ὥστε μηδένα ἀπόντα αἱρεῖσθαι, παρημελημένον πῶς ἀνενεώσατο.

[826] Hence their association with _sequestres_—the agents in whose hands
the candidate deposited money. Cic. _pro Planc._ 18, 19; Q. Cic. _de Pet.
Cons._ 14, 57.

[827] _Lex Jul. Munic._ l. 132 “neve quis ejus rationem comitieis
conciliove [habeto, neive quis quem, sei adversus ea comitieis
conciliove] creatum est, renuntiato.” In 67 B.C. the consul Piso,
questioned “Palicanum num suffragiis populi consulem creatum
renuntiaturus esset,” answered “non renuntiabo” (Val. Max. iii. 8, 3).

[828] p. 47.

[829] Mommsen (_Staatsr._ i. p. 599) places this change in 222 B.C. Liv.
xxxi. 5, etc.

[830] _Fasti Praenestini_ (_C.I.L._ i. p. 364) “[ann]us nov[us incipit],
quia eo die mag[istratus] ineunt: quod coepit [p. R.] c. a. DCI.”

[831] Quaestors (Cic. _in Verr._ Act. i. 10, 30; _Lex de XX. quaest._ in
Bruns _Fontes_ l. 15); tribunes (Dionys. vi 89).

[832] Dio Cass. xl. 66; Cic. _in Verr._ i. 41, 105; Liv. xxi. 63.

[833] The _execratio_ is given by Pliny (_Paneg._ 64), “explanavit verba
quibus caput suum, domum suam, si sciens fefellisset, deorum (Jupiter and
the Dii Penates) irae consecraret.”

[834] Cic. _ad Att._ ii. 18, 2 “habet ... Campana Lex (of the consul
Caesar in 59 B.C.) execrationem in contione candidatorum.”

[835] Liv. xxxi. 50; if we may argue from municipal law (_Lex Salpens._
c. 26), omission to take it due to mere neglect was visited in the first
instance by a fine.

[836] Liv. l.c.

[837] Cic. _ad Fam._ v. 2, 7; _pro Sulla_ 11, 34; _in Pison._ 3, 6; _pro
Domo_ 35, 94. Cicero, at the close of 63, varied the oath by swearing
that he had saved the state.

[838] p. 45.

[839] Liv. v. 41.

[840] The dagger is mentioned more frequently than the sword (_gladius_)
as the distinctive sign of military power. Momms. _Staatsr._ i. p. 434 n.
1.

[841] Hence such phrases as _decedere via_, _descendere equo_, _adsurgere
sella_, _caput aperire_. The senators were in the habit of rising from
their seats when the consul entered the Curia (Cic. _in Pis._ 12, 26).

[842] A decree of the augurs in 426 B.C. declared the consular tribunes
capable of this nomination (Liv. iv. 31).

[843] p. 165.

[844] Liv. viii. 12 “Aemilius, cujus tum fasces erant, collegam
dictatorem dixit”; iv. 26 “Sors, ut dictatorem diceret (nam ne id quidem
inter collegas convenerat) T. Quinctio evenit”; iv. 21 “Verginius, dum
collegam consuleret, moratus, permittente eo, nocte dictatorem dixit.”

[845] Liv. iv. 17 “senatus ... dictatorem dici Mam. Aemilium jussit”;
vii. 12 “dictatorem dici C. Sulpicium placuit. Consul ad id adcitus C.
Plautius dixit.”

[846] ib. xxii. 57 (216 B.C.) “dictator ex auctoritate patrum dictus M.
Junius.”

[847] ib. _Ep._ 19; Suet. _Tib._ 2 (the enforced abdication of Claudius
Glicia, nominated by Claudius Pulcher). In Liv. iv. 26 the _coercitio_ of
the tribune is represented as employed against the consuls who disobey.

[848] Mommsen in _C.I.L._ i. p. 557.

[849] Liv. xxvii 5 (210 B.C., on the proposal of the consul to nominate
a dictator in Sicily) “patres extra Romanum agrum (eum autem in Italia
terminari) negabant dictatorem dici posse.”

[850] ib. ix. 38-39.

[851] Polyb. iii. 87; but, as a rule, he was preceded by only twelve
within the walls (Liv. _Ep._ 89 “Sulla, dictator factus, quod nemo umquam
fecerat, cum fascibus viginti quatuor processit”).

[852] Liv. ii. 18 “Creato dictatore primum Romae, postquam praeferri
secures viderunt, magnus plebem metus incessit.”

[853] p. 85.

[854] e.g. the dictator named by Livy (ix. 26) as “quaestionibus
exercendis” (314) is mentioned in the _Fast. Capitol._ as “rei gerundae
causa” (Momms. _Staatsr._ ii. p. 157 n. 2); a dictator “seditionis
sedandae et rei gerundae causa” is found in the _Fasti_ for 368.

[855] Liv. vii. 24 “qui aegris consulibus comitia haberet.” Cf. c. 26
(absence of consuls in the field) and ix. 7.

[856] ib. xxiii. 22. In 216 B.C. M. Fabius Buteo was appointed dictator
“qui senatum legeret.”

[857] ib. viii. 40.

[858] ib. vii. 28 (for establishment of _feriae_ on the occasion of
a _prodigium_); “dictator Latinarum feriarum causa” in _Fast. Cap._
(_C.I.L._ i. p. 434) for the year 257 B.C.

[859] The first instance was on the occasion of the great pestilence in
363 B.C. (Liv. vii. 3 “Lex vetusta est ... ut, qui praetor maximus sit,
Idibus Septembribus clavum pangat”). Cf. Fest. p. 56.

[860] Cic. _de Off._ iii. 31, 112 (see p. 183); cf. Liv. vii. 3. L.
Manlius, appointed “clavi figendi causa,” acted “perinde ac reipublicae
gerendae ... gratia creatus esset,” and was forced to abdicate.

[861] p. 84.

[862] This is Mommsen’s interpretation (_Staatsr._ ii. p. 160 n. 4)
of Liv. xxx. 39. C. Servilius Geminus had been appointed dictator
_comitiorum causa_—“Saepe comitia indicta perfici tempestates
prohibuerunt. Itaque, cum prid. Id. Mart. veteres magistratus abissent,
novi subfecti non essent, respublica sine curulibus magistratibus erat.”

[863] Liv. iv. 41. The consul is here said “auspicio dictatoris res
gerere.”

[864] ib. ii. 32 “quamquam per dictatorem dilectus habitus esset, tamen,
quoniam in consulum verba jurassent, sacramento teneri militem rati.”

[865] This view has led to the exaggerated statement of Polybius (iii.
87) that, on the establishment of a dictator, παραχρῆμα διαλύεσθαι
συμβαίνει πάσας τὰς ἀρχὰς ἐν τῇ Ῥώμῃ πλὴν τῶν δημάρχων: which has been
copied by later Greek writers.

[866] This is clearly shown by the attitude of the dictator L. Papirius
Cursor when pursuing his disobedient master of the horse (Liv. viii.
34). The dictator hopes that the veto will not be employed (“optare ne
potestas tribunicia, inviolata ipsa, violet intercessione sua Romanum
imperium”). Zonaras expresses the fact and not the law (vii. 13 οὔτ’
ἐγκαλέσαι τις αὐτῷ οὔτ’ ἐναντίον τι διαπράξασθαι ἴσχυεν οὐδὲ οἱ δήμαρχοι).

[867] Zonar. vii. 13 οὔτε ἐκ τῶν δημοσίων χρημάτων ἀναλῶσαι τι ἐξῆν αὐτῷ,
εἰ μὴ ἐψηφίσθη.

[868] Liv. _Ep._ 19 (249 B.C.) “Atilius Calatinus primus dictator extra
Italiam exercitum duxit”; Dio Cass. xxxvi. 17 (the dictatorship was
limited to Italy) καὶ οὐκ ἂν εὑρεθείη δικτάτωρ οὐδεὶς ἄλλοσε, πλὴν ἑνὸς
ἐς Σικελίαν, καὶ ταῦτα μηδὲν πράξαντος, αἱρεθείς.

[869] Festus p. 198 “optima lex in magistro populi faciendo, qui vulgo
Dictator appellator, quam plenissimum posset jus ejus esse significabatur
... postquam vero provocatio ab eo magistratu ad populum data est, quae
ante non erat, desitum est adici ‘ut optima lege,’ ut pote imminuto jure
priorum magistrorum.”

[870] p. 168. It could not have been a consequence of the
Valerio-Horatian laws of 449 B.C. (see p. 109).

[871] Liv. xxii. 8.

[872] Livy (xxii. 25) describes it as a _rogatio_ “de aequando magistri
equitum et dictatoris jure.” Cf. c. 26 “de aequato imperio.”

[873] Liv. xxii. 57, M. Junius Pera.

[874] _Fast. Capitol._

[875] Sulla was nominated by an interrex (though his powers were
conferred by law), Caesar by a praetor. Plutarch (_Marc._ 24) says that
the praetor could nominate the dictator, a proceeding which is declared
by Cicero to be wholly unconstitutional, _ad Att._ ix. 15, 2 (49 B.C.)
“volet (Caesar) ... vel ut consules roget praetor vel dictatorem dicat,
quorum neutrum jus est. Etsi si Sulla potuit efficere, ab interrege ut
dictator diceretur, cur hic non possit?” The nomination of Caesar was
regular in so far as a special _lex_ was passed which empowered the
praetor to nominate (Caes. B.C. ii. 21; Dio Cass. xli. 36).

[876] An exception is found in 216 B.C. M. Fab. Buteo was appointed
“dictator sine mag. eq. senatus legendi causa” (see p. 193).

[877] In the single case of the election of a dictator, the _magister
equitum_ was also elected (Liv. xxii. 8).

[878] Dio Cass. xlii. 27; Antonius, as Caesar’s _magister equitum_, had
six lictors.

[879] Cic. _de Leg._ iii. 3, 9 “equitatumque qui regat, habeto pari jure
cum eo, quicumque erit juris disceptator.”

[880] Pompon. in _Dig._ 1, 2, 2, 19 “et his dictatoribus magistri equitum
injungebantur sic, quo modo regibus tribuni celerum: ... magistratus
tamen habebantur legitimi.”

[881] Liv. iv. 34 “jussoque magistro equitum abdicare se magistratu, ipse
deinde abdicat.”

[882] Liv. ix. 38 “Papirius C. Junium Bubulcum magistrum equitum dixit:
atque ei, legem curiatam de imperio ferenti, triste omen diem diffidit.”

[883] Cic. _de Leg._ iii. 4, 10; see p. 160.

[884] Liv. viii. 32 sq.; cf. xxii. 27 “in ... civitate, in qua magistri
equitum virgas ac secures dictatoris tremere atque horrere soliti sint.”

[885] ib. iv. 27 “relictoque (at Rome) L. Julio magistro equitum ad
subita belli ministeria.”

[886] ib. ii. 18; Dio Cass. xlii. 21 (Caesar τὸν Ἀντώνιον, μηδ’
ἐστρατηγηκότα, ἵππαρχον προσελόμενος).

[887] Dionys. ii. 6 τῶν δὲ παρόντων τινὲς ὀρνιθοσκόπων μισθὸν ἐκ τοῦ
δημοσίου φερόμενοι.

[888] Cic. _post Red. ad Quir._ 5, 11. The first meeting of the Senate
was in early times held by the elder of the two consuls (ὁ πρεσβύτερος
τῶν ὑπάτων Dionys. vi. 57).

[889] Cic. _pro Planc._ 25, 60 “honorum populi finis est consulatus.”

[890] App. _B.C._ ii. 19. In formal dating the names of the two chief
praetors were added. See the _Senatus Consultum de Asclepiade_ (Bruns
_Fontes_).

[891] Suet. _Tib._ 31; see p. 191.

[892] Liv. xliv. 17 (169 B.C.) “designatos extemplo sortiri placuit
provincias.”

[893] ib. ii. 33 “consul alter Romae mansit, alter ad Volscum bellum
missus”; cf. Dionys. vi. 91; Liv. ix. 42.

[894] Cic. _de Rep._ ii. 31, 55.

[895] Festus p. 161 “majorem consulem L. Caesar putat dici, vel eum penes
quem fasces sint, vel eum, qui prior factus sit.” The first explanation
is doubtless the correct one.

[896] Suet. _Caes._ 20.

[897] Polyb. vi. 12 πασῶν εἰσι κύριοι τῶν δημοσίων πράξεων.

[898] Cicero furnishes an instance for the year 54 B.C., _ad Att._
iv. 15, 5 “Reatini me ad sua Τέμπη duxerunt, ut agerem causam contra
Interamnates apud consulem et decem legatos, quod lacus Velinus ... in
Nar defluit.”

[899] p. 167.

[900] Selection of a consul, Cic. _de Fin._ ii. 16, 54, in 141 B.C.,
“decreta a senatu est consuli quaestio”; of a praetor, Liv. xlii. 21,
in 172 B.C., “C. Licinius praetor consuluit senatum quem quaerere ea
rogatione vellet. Patres ipsum eum quaerere jusserunt.”

[901] Cic. _de Rep._ iii. 18, 28 (of the year 136 B.C.) “Consul ego
quaesivi, cum vos mihi essetis in consilio, de Numantino foedere.”
Mommsen (_Staatsr._ ii. p. 112 n. 3) thinks that the _consilium_ was
formed by the Fetiales (cf. Cic. _de Leg._ ii. 9, 21).

[902] For the question whether the _pomerium_ or the first milestone was
the limit of the full _imperium_ see p. 79.

[903] For the rotation of the _imperium_ before Cannae (216 B.C.) see
Polyb. iii. 110, Liv. xxii. 41.

[904] Liv. xxii. 27 “Ita (Fabius, after the appointment of Minucius as
his colleague in 217 B.C.) obtinuit uti legiones, sicut consulibus mos
esset, inter se dividerent.”

[905] ib. xxx. 1 (203 B.C.) “censuerunt patres, ut consules inter se
compararent sortirenturve, uter Bruttios adversus Hannibalem, uter
Etruriam ac Ligures provinciam haberet.”

[906] Italy and Macedonia (ib. xxxii. 8, xlii. 31, xliii. 12), Italy and
Greece (xxxvii. 1).

[907] Italia and some foreign country are still consular _provinciae_ in
112 and 111 B.C. (Sall. _Jug._ 27, 43). When a consul was appointed to
one of the old praetorian provinces, he did not supplant the praetor but
commanded with and over him.

[908] Liv. xxx. 1 “ut consules inter se compararent sortirenturve.” Cf.
ib. xxxii. 8, xxxvii. 1, and the other passages cited in note 3.

[909] ib. viii. 16; cf. Cic. _pro Domo_ 9, 24. In 205 B.C. Scipio was
given Sicilia _extra sortem_ because his colleague was _pontifex maximus_
(Liv. xxviii. 38).

[910] Liv. xxi. 17 (218 B.C.) “nominatae jam antea consulibus provinciae
erant; tum sortiri jussi.” Cf. ib. xxviii. 38.

[911] Sall. _Jug._ 27; Cic. _pro Domo_ 9, 24.

[912] Cic. _ad Att._ viii. 15, 3 “consules quibus more majorum concessum
est vel omnes adire provincias.” Lucullus went as consul to Asia in 74
B.C.

[913] p. 153.

[914] That staunch conservative Q. Catulus was wont to reflect with
pleasure “non saepe unum consulem improbum, duos vero nunquam, excepto
illo Cinnano tempore, fuisse” (Cic. _post Red. in Sen._ 4, 9). By
_improbi_ Catulus meant “radicals.”

[915] The consul was the “legitimus tutor” of the state (Cic. _post Red.
ad Quir._ 5, 11) and “quasi parens bonus aut tutor fidelis” (_de Or._
iii. 1, 3).

[916] p. 120.

[917] Two praetors for Sicily and Sardinia (Liv. _Ep._ xx.), two more for
the Spanish provinces (Liv. xxxii. 27). For the _lex Baebia_ see Liv. xl.
44. For the restoration of the number six see Vell. ii. 16. Pomponius
says that four were added by Sulla (_Dig._ 1, 2, 2, 32), but eight are
found in 47 B.C. (Dio Cass. xlii. 51).

[918] The praetor had a right to six lictors (στρατηγὸς ἑξαπέλεκυς, App.
_Syr._ 15; cf. Polyb. iii. 40) and appears with the full number in the
province (Cic. _in Verr._ v. 54, 142 “sex lictores circumsistunt”); but,
in the exercise of his jurisdiction within the city, he employed, or was
allowed, only two (Censorinus _de Die Nat._ 24, 3; cf. Cic. _de Leg.
Agr._ ii. 34, 93).

[919] _Praetor urbanus_ (_S. C. de Bacch._ ll. 5, 8, 17, 21), _praetor
qui inter cives jus dicet_ (_lex Agraria_ of 111 B.C.), _provincia_
or _sors urbana_ (Liv. xxiv. 9, xxv. 3, xxvii. 7, xxviii. 10, xxix.
13), jurisdictio urbana (ib. xxxii. 28, xlii. 31)—_praetor qui inter
peregrinos jus dicet_ (_lex Acil._ ll. 12 and 89; _lex Jul. Munic._
ll. 8 and 12), _jurisdictio inter peregrinos_ (Liv. xl. 1), _provincia
peregrina_ (ib. xxvii. 7, xxviii. 10). Both these praetors, as distinct
from those in foreign command, are said to have _urbanae provinciae_ (ib.
xliii. 11), _provincia urbana_ (xxxii. 1), _jurisdictio urbana_ (xxv. 41,
xxx. 1).

[920] p. 197.

[921] App. _B. C._ ii. 112.

[922] Cic. _Phil._ ii. 13, 31.

[923] p. 174.

[924] Liv. xlii. 21.

[925] ib. xxvii. 5.

[926] ib. xliii. 14.

[927] ib. xlii. 21; see p. 199.

[928] e.g. in the _dilectus_ (ib. xxv. 22, xxxix. 20, xlii. 35).

[929] After Cannae the two urban praetors summoned the Senate (ib.
xxii. 55). In 197 B.C., on the news of troubles in Spain, “decreverunt
patres ut, comitiis praetorum perfectis, cui praetori provincia Hispania
obvenisset, is primo quoque tempore de bello Hispaniae ad senatum
referret” (ib. xxxiii. 21).

[930] The _provinciae_ assigned to the four praetors are _urbana_,
_peregrina_, Sicilia, Sardinia (ib. xxviii. 10), to the six praetors the
same with the addition of the two Spains (ib. xxxii. 28, xl. 1).

[931] ib. xxv. 3 (212 B.C.) “Et praetores provincias sortiti sunt; P.
Cornelius Sulla urbanam et peregrinam, quae duorum ante sors fuerat.” Cf.
ib. xxxvii. 50 (189 B.C.).

[932] ib. xxix. 13 (204 B.C.) “M. Marcio urbana, L. Scribonio Liboni
peregrina et eidem Gallia.”

[933] ib. xxiv. 9 (215 B.C.) “comitiis praetorum perfectis, senatus
consultum factum ut Q. Fulvio extra ordinem urbana provincia esset.”

[934] Gaius _Inst._ iv. 30 “per legem Aebutiam et duas Julias sublatae
sunt istae legis actiones; effectumque est ut per concepta verba, id est,
per formulas, litigaremus”; Gell. xvi. 10, 8 “cum ... omnis ... illa
duodecim tabularum antiquitas nisi in legis actionibus centumviralium
causarum lege Aebutia lata consopita sit.”

[935] Marcian in _Dig._ 1, 1, 8 “nam et ipsum jus honorarium viva vox est
juris civilis.”

[936] Cic. _de Leg._ i. 5, 17 “Non ergo a praetoris edicto, ut plerique
nunc, neque a XII Tabulis, ut superiores ... hauriendam juris disciplinam
putas.” Cf. _de Leg._ ii. 23, 59 “discebamus enim pueri XII, ut carmen
necessarium: quas jam nemo discit.”

[937] Papinian in _Dig._ 1, 1, 7, 1 “jus praetorium est, quod praetores
introduxerunt adjuvandi vel supplendi vel corrigendi juris civilis gratia
propter utilitatem publicam.”

[938] For the edict as the expression of customary law see Cic. _de
Invent._ ii. 22, 67 “Consuetudine autem jus esse putatur id, quod
voluntate omnium sine lege vetustas comprobarit.... Quo in genere et alia
sunt multa et eorum multo maxima pars, quae praetores edicere consuerunt.”

[939] Cic. _in Verr._ i. 42, 109 “qui plurimum tribuunt edicto, praetoris
edictum legem annuam dicunt esse.”

[940] Ascon. _in Cornel._ p. 58; Cic. _in Verr._ i. 44, 114. _Perpetuum_
means “continuous,” _tralaticium_ “transmitted.”

[941] Cic. _in Verr._ i. 46, 119. Cf. p. 178.

[942] Ascon. _in Cornel._ p. 58 “Aliam deinde legem Cornelius, ... tulit,
ut praetores ex edictis suis perpetuis jus dicerent, quae res ... gratiam
ambitiosis praetoribus, qui varie jus dicere assueverant, sustulit.” Cf.
Dio Cass. xxxvi. 23.

[943] p. 202.

[944] Cic. _in Verr._ Act. i. 8, 21; _pro Mur._ 20, 42. The fullest
account that we possess of the distribution of such functions amongst the
members of the college refers to the year 66 B.C. (ib. _pro Cluent._ 53,
147; Ascon. _in Cornel._ p. 59).

[945] e.g. the _lex Cornelia de sicariis et veneficis_ took cognisance
of murder, poisoning, and arson, that _de falsis_ of the forgery of
documents and of wills as well as of coining.

[946] After the _sortitio_ for 62 B.C. the praetor Q. Metellus Celer was
given the province of Cisalpine Gaul (Cic. _ad Fam._ v. 2, 3, and 4).
During his praetorship (63 B.C.) he had been summoned to a command in
northern Italy.

[947] Cic. _de Leg._ iii. 3, 7 “Suntoque aediles, curatores urbis,
annonae ludorumque sollemnium: ollisque ad honoris amplioris gradum is
primus ascensus esto.” Cf. _lex Jul. Munic._ l. 24.

[948] p. 122.

[949] Cic. _in Verr._ v. 14, 36.

[950] Livy (iii. 55), in stating the ineffectiveness of the
_sacrosanctitas_ granted by law and not by oath, says “itaque aedilem
prendi ducique a majoribus magistratibus, etc.” Cf. Gell. xiii. 13.

[951] Cic. _de Leg._ iii. 3, 7, cited p. 208.

[952] p. 98.

[953] Dio Cass. liv. 36.

[954] _Lex Jul. Munic._ ll. 20, 32-45, 29, 46.

[955] Suet. _Vesp._ 5; _lex Jul. Munic._ l. 68.

[956] Cic. _ad Fam._ viii. 6, 4 (Caelius Rufus, curule aedile in 50 B.C.,
says) “nisi ego cum tabernariis et aquariis pugnarem, veternus civitatem
occupasset.”

[957] ib. _in Verr._ v. 14, 36 “mihi sacrarum aedium procurationem, mihi
totam urbem tuendam esse commissam.”

[958] Liv. xxv. 1 (on the spread of foreign superstitions in Rome in 213
B.C.) “incusati graviter ab senatu aediles triumvirique capitales, quod
non prohiberent.” Cf. Cic. _de Har. Resp._ 13, 27.

[959] Macrob. _Sat._ ii. 6 “lapidatus a populo Vatinius cum gladiatorium
munus ederet, obtinuerat ut aediles edicerent ne quis in arenam nisi
pomum misisse vellet.”

[960] Seneca _Ep._ 86, 10 “hoc quoque nobilissimi aediles fungebantur
officio intrandi ea loca quae populum receptabant exigendique munditias
et utilem ac salubrem temperaturam.” Cf. Suet. _Claud._ 38; Tac. _Ann._
ii. 85.

[961] Tac. _Ann._ xiii. 28 (56 A.D.) “cohibita artius et aedilium
potestas statutumque quantum curules, quantum plebei pignoris caperent
vel poenae inrogarent.”

[962] _Dig._ 21, 1, 40-42 (from the edict of the curule aediles) “ne quis
canem, verrem vel minorem aprum, lupum, ursum, pantheram, leonem ... qua
vulgo iter fiet, ita habuisse velit, ut cuiquam nocere damnumve dare
possit.”

[963] p. 208 n. 4.

[964] Liv. xxiii. 41; xxxi. 50; xxxiii. 42. Cic. _de Off._ ii. 17, 58
“ne M. quidem Sejo vitio datum est, quod in caritate asse modium populo
dedit: magna enim se et inveterata invidia, nec turpi jactura, quando
erat aedilis, nec maxima liberavit.”

[965] Cic. _ad Fam._ viii. 6, 5 (from Caelius Rufus in 50 _B.C._)
“alimentariam (legem), qua jubet aediles metiri, jactavit (Curio).”

[966] Liv. xxvi. 10 (211 B.C., when Hannibal was at the gates of Rome)
“Fulvius Flaccus ... inter Esquilinam Collinamque portam posuit castra.
Aediles plebis commeatum eo comportarunt.”

[967] For this there is no direct evidence, but the aediles complain
about the transgression of sumptuary laws in Tac. _Ann._ iii. 52-55.

[968] Momms. _Staatsr._ ii. p. 499. He takes “cum tabernariis pugnarem”
(Cic. _ad Fam._ viii. 6, 4, cited p. 209) in this sense.

[969] _Dig._ 21, 1, 1; Gell. iv. 2.

[970] Cic. _in Verr._ v. 14, 36.

[971] Liv. x. 47; xxvii. 6. They were shared by both colleagues (Suet.
_Caes._ 10).

[972] Liv. xxiii. 30.

[973] Dio Cass. xliii. 48 (44 B.C.). Here by a decree of the Senate the
Megalesia are celebrated by the plebeian aediles.

[974] When during the first Punic war Clodia uttered her ill-omened wish
about the Roman people, “C. Fundanius et Ti. Sempronius, aediles plebei,
multam dixerunt ei aeris gravis viginti quinque milia” (Gell. x. 6). Cf.
Suet. _Tib._ 2.

[975] Cicero promises, as aedile, to prosecute those “qui aut deponere
aut accipere aut recipere aut pollicere aut sequestres aut interpretes
corrumpendi judicii solent esse” (_in Verr._ Act. i. 12, 36).

[976] An instance is furnished by Clodius’ prosecution of Milo in 56 B.C.
(Cic. _pro Sest._ 44, 95; _ad Q. fr._ 2, 3). A prosecution by the aedile
in defence of his own dignity or person is an outcome of his _coercitio_.
An instance is furnished by Gell. iv. 14.

[977] Liv. viii. 22; xxv. 2.

[978] ib. xxxv. 41.

[979] ib. xxxviii. 35. Here the offence was _annona compressa_ by the
corn-dealers.

[980] Condemnation “quia plus, quam quod lege finitum erat, agri
possiderent” (ib. x. 13). Condemnation of _pecuarii_ (x. 47). Cf. xxxiii.
42.

[981] ib. xxxviii. 35; x. 23.

[982] p. 63.

[983] p. 80.

[984] p. 81.

[985] p. 117.

[986] Tac. _Ann._ xi. 22 “post lege Sullae viginti creati supplendo
senatui.”

[987] C. Gracchus served as quaestor for three years; one was spent in
Rome and two in Sardinia (Plut. _C. Gracch._ 2).

[988] Cic. _in Verr._ Act. i. 4, 11 “quaestura primus gradus honoris.”

[989] ib. i. 13, 34 “quaestor ex senatus consulto provinciam sortitus es.”

[990] Liv. xxx. 33 “Laelium, cujus ... eo anno quaestoris extra sortem ex
senatusconsulto opera utebatur” (Scipio in 202 B.C.); Cic. _ad Att._ vi.
6, 4 “Pompeius ... Q. Cassium sine sorte delegit, Caesar Antonium; ego
sorte datum offenderem?”

[991] The first trace of a _quaestio de sicariis_ is in 142 B.C. (Cic.
_de Fin._ ii. 16, 54).

[992] Polyb. xxiv. 9_a_, 1.

[993] Liv. iii. 69 “signa ... a quaestoribus ex aerario prompta delataque
in campum.”

[994] Cic. _de Leg._ iii. 20, 46.

[995] Liv. xxxix. 4. It was the duty of the quaestors to see that they
were genuine. Cato the younger required the oath of the consuls that a
certain decree had been passed (Plut. _Cat. Min._ 17).

[996] Cic. _Phil._ v. 5, 15.

[997] ib. _in Verr._ iii. 79, 183 “eorum hominum (the _scribae_ of the
quaestors) fidei tabulae publicae periculaque magistratuum committuntur.”

[998] The security was given to the _aerarium_ (“subsignare apud
aerarium” Cic. _pro Flacco_ 32, 80); hence the money was probably paid
into that treasury.

[999] Liv. xxxviii. 58 “Hostilius et Furius damnati (for _peculatus_ in
187 B.C.) praedes eodem die quaestoribus urbanis dederunt.” In the _lex
Acil. Rep._ (l. 57) it is said of the man convicted “q(uaestori) praedes
facito det.”

[1000] Plaut. _Capt._ i. 2, 111; ii. 3, 453.

[1001] Hygin. _de Cond. Agr._ p. 115.

[1002] _Auct. ad Herenn._ i. 12, 21 “Cum L. Saturninus legem frumentariam
de semissibus et trientibus laturus esset, Q. Caepio, qui per id temporis
quaestor urbanus erat, docuit senatum aerarium pati non posse tantam
largitionem.”

[1003] p. 117.

[1004] p. 213. If the quaestor was lacking through death or any other
cause, the governor appointed one of his _legati_ as _pro quaestore_
(Cic. _in Verr._ i. 36, 90).

[1005] Cic. _pro Planc._ 11, 28 “morem ilium majorum qui praescribit in
parentum loco quaestoribus suis praetores esse oportere.”

[1006] ib. _in Verr._ i. 15, 40 “Tu, cum quaestor ad exercitum missus
sis, custos non solum pecuniae sed etiam consulis, particeps omnium rerum
consiliorumque fueris.”

[1007] Lydus _de Mag._ i. 27 κρινάντων Ῥωμαίων πολεμεῖν τοῖς συμμαχήσασι
Πύρρῳ τῷ Ἠπειρὼτῃ κατεσκευάσθη στόλος καὶ προεβλήθησαν οἱ καλοὺμενοι
κλασσικοὶ (οἱονεὶ ναυάρχαι) τῷ ἀριθμῷ δυοκαίδεκα κυαίστωρες. Lydus may be
right about the original number, although it has been sometimes thought a
confused reminiscence of the raising of the number from four to eight.

[1008] Vell. ii. 94; cf. Cic. _pro Mur._ 8, 18 “tu illam (provinciam
habuisti), cui, cum quaestores sortiuntur, etiam acclamari solet,
Ostiensem non tam gratiosam et illustrem quam negotiosam et molestam.”

[1009] Tac. _Ann._ iv. 27. In 24 A.D. a rising near Brundisium was
repressed by “Curtius Lupus quaestor, cui provincia vetere ex more calles
evenerant.” Mommsen (_Staatsr._ ii. p. 571), following Lipsius, would
read Cales, the oldest Latin colony in Campania, and therefore supposes
that this quaestor’s functions extended over the whole of South Italy.
The woods and forests was the _provincia_ which the Senate destined for
Caesar as proconsul (Suet. _Caes._ 19 “opera optimatibus data est ut
provinciae futuris consulibus minimi negotii, id est, silvae callesque,
decernerentur”).

[1010] Plut. _Sert._ 4.

[1011] The last to remain were the Gallic and Ostian, which, as Italian
_provinciae_, were abolished by the Emperor Claudius in 44 A.D. (Suet.
_Claud._ 24).

[1012] So Sertorius, as Gallic quaestor in the Marsic war, was instructed
στρατιώτας ... καταλέγειν καὶ ὅπλα ποιεῖσθται (Plut. _Sert._ 4).

[1013] Cicero speaks of Vatinius, when holding this post, being sent to
Puteoli on some other business (_in Vat._ 5, 12), but this does not show
that he was holding an Italian quaestorship. See Momms. _Staatsr._ ii. p.
573 n. 3.

[1014] Liv. iv. 8; see p. 115.

[1015] ib. vii. 22 (C. Marcius Rutilus); cf. x. 8.

[1016] ib. viii. 12 “ut alter utique ex plebe, cum eo [ventum sit] ut
utrumque plebeium fieri liceret, censor crearetur.” Madvig and Mommsen
would omit “ventum sit,” and so make the Publilian law open both places
in the college to Plebeians.

[1017] ib. _Ep._ lix. “Q. Pompeius Q. Metellus tunc primum utrique ex
plebe facti censores lustrum condiderunt.”

[1018] Messala ap. Gell. xiii. 15, 4.

[1019] Cic. _de Leg. Agr._ ii 11, 26 “majores de singulis magistratibus
bis vos sententiam ferre voluerunt: nam cum centuriata lex censoribus
ferebatur, cum curiata ceteris patriciis magistratibus, tum iterum de
eisdem judicabatur.”

[1020] Messala ap. Gell. xiii. 15.

[1021] Polybius (vi. 53) says that the _imago_ of the censor at a funeral
was clad in purple. As all the _insignia_ of the other magistrates that
he mentions are those of their lifetime, this should be true of the
censors. Perhaps the complete purple was worn for certain ceremonial
purposes. Mommsen (_Staatsr._ i. pp. 411 and 446) thinks they were only
buried in it.

[1022] ἁρχὴ ἀνυπεύθυνος (Dionys. xix. 16).

[1023] Liv. xxix. 37; Val. Max. vii. 2, 6.

[1024] Ascon. _in Pison._ p. 9.

[1025] Hence the helplessness of the tribune against censorial
animadversion. Cf. Liv. xliv. 16 “multis equi adempti, inter quos P.
Rutilio, qui tr. pl. eos violenter accusarat: tribu quoque is motus et
aerarius factus.”

[1026] Cic. _ad Att._ iv. 9, 1.

[1027] For the later mode of regarding this limitation see Liv. iv. 24
“grave esse iisdem per tot annos magna parte vitae obnoxios vivere.” But,
if the tenure was fixed by the _lex Aemilia_ (of the dictator Mamercus
Aemilius, 434 B.C., Liv. l.c.), it originated before the censorship had
become a dangerous power.

[1028] Liv. xxiii. 23 “nec censoriam vim uni permissam et eidem iterum.”
The prohibition is attributed to a law of Marcius Rutilus Censorinus,
censor 294 and 265 B.C. (Plut. _Cor._ 1; cf. Val. Max. iv. 1, 3); but it
could not have been his work, at least as censor, for this official had
not the _jus rogandi_. See Momms. _Staatsr._ i. p. 520.

[1029] It is Cicero’s business in the _pro Cluentio_ (43, 122) to
represent this divergence of view as a weakness in the censorship; cf.
Liv. xlii. 10 (173 B.C.) “concors et e re publica censura fuit ... neque
ab altero notatum alter probavit.” But it was a necessary condition of
the continuance of the office in a free state.

[1030] Liv. ix. 34 “cum ita comparatum a majoribus sit ut comitiis
censoriis nisi duo confecerint legitima suffragia, non renuntiato altero
comitia differantur.”

[1031] Tradition attributed the origin of this role to a religions
scruple, “quia eo lustro (in which a _suffectus_ was appointed) Roma est
capta: nec deinde unquam in demortui locum censor sufficitur” (Liv. v.
31).

[1032] Cicero mixes up the earlier and later functions in his pseudo-law,
which expresses all the activities of the censors (_de Leg._ iii. 3,
7), “Censores populi aevitates, suboles, familias pecuniasque censento:
urbis, tecta, templa, vias, aquas, aerarium, vectigalia tuento:
populique partes in tribus discribunto: exin pecunias, aevitates,
ordines partiunto: equitum peditumque prolem discribunto: caelibes esse
prohibento: mores populi regunto: probrum in senatu ne relinquunto.”

[1033] Liv. ix. 30.

[1034] ib. xxiii. 22; see p. 193.

[1035] In the great _sublectio_ after Cannae (216 B.C.) the ex-curule
magistrates not already on the list were chosen in the order of their
tenure of power; then the ex-aediles, ex-tribunes of the _plebs_ and the
_quaestorii_, lastly men of distinction who had held no magistracy (Liv.
xxiii. 23).

[1036] Festus p. 246 “Ovinia tribunicia intervenit, qua sanctum est ut
censores ex omni ordine optimum quemque jurati (_Cod._ curiati, _Mommsen_
curiatim) in senatum legerent.” If “ex omni ordine” means “from every
grade of the magistracy,” the second interpretation is necessary.

[1037] The _oratio_ of Cato as censor against L. Quinctius Flaminius was
delivered _post notam_ (Liv. xxxix. 42); but it suggests that the censors
felt themselves bound at times to give reasons for their actions.

[1038] The phrases for rejection and omission are _movere_, _ejicere_,
_praeterire_. The last applies both to existing and to expectant
senators, and has reference to the public reading of the list
(_recitatio_) (Cic. _pro Domo_ 32, 84 “praeteriit in recitando senatu”).

[1039] Liv. xli. 57 “retinuit quosdam Lepidus a collega praeteritos”; cf.
Cic. _pro Cluent._ 43, 122.

[1040] For a type of _subscriptio_ see Ascon. _in or. in Tog. Cand._ p.
84 “Antonium Gellius et Lentulus censores ... senatu moverunt causasque
subscripserunt, quod socios diripuerit, quod judicium recusarit, quod
propter aeris alieni magnitudinem praedia manciparit bonaque sua in
potestate non habeat.”

[1041] Usually the praetorship or quaestorship. Momms. _Staatsr._ i. p.
521 n. 3.

[1042] See the formula of summons in Varro (_L.L._ vi. 86), “omnes
Quirites pedites armatos, privatosque curatores omnium tribuum, si quis
pro se sive pro altero rationem dari volet, vocato in licium huc ad me.”

[1043] Mommsen believes in a special summons to the _capite censi_
(_Staatsr._ ii. p. 366).

[1044] Liv. xliii. 14.

[1045] Cato in 184 assessed articles of luxury at ten times their value
(Liv. xxxix. 44; Plut. _Cat. Maj._ 18).

[1046] Liv. iv. 24 “Mamercum ... tribu moverunt octuplicatoque censu
aerarium fecerunt”; Val. Max. ii. 9, 1 “Camillas et Postumius censores
aera poenae nomine eos, qui ad senectutem caelibes pervenerant, in
aerarium deferre jusserunt.”

[1047] See p. 69.

[1048] Cic. _de Leg._ iii. 3, 7 “familias pecuniasque censento”; _lex
Jul. Munic._ l. 147 “rationem pecuniae ... accipito.” _Pecunia_ here
applies to both _res mancipi_ and _nec mancipi_.

[1049] Cic. l.c. “aevitates suboles ... censento”; _lex Jul. Munic._ l.
145 “eorum ... nomina, praenomina, patres ... et quot annos quisque eorum
habet ... accipito.”

[1050] p. 68.

[1051] Liv. ix. 46 “forensis factio App. Claudi censura vires nacta,
qui ... humilibus per omnes tribus divisis forum et campum corrupit.”
Cf. Diod. xx. 46 (App. Claudius) ἔδωκε τοῖς πολίταις ὅποι προαιροῖντο
τιμήσασθαι. Mommsen imagines that it was in this year that the landless
citizens _first_ found a place in the tribes (_Staatsr._ ii. 392 sq., 402
sq.).

[1052] Liv. l.c. “aliud integer populus ... aliud forensis factio
tendebat.... Fabius simul concordiae causa, simul ne humilimorum in
manu comitia essent, omnem forensem turbam excretam in quattuor tribus
conjecit urbanasque eas appellavit.”

[1053] _Sexagenarius de ponte._ Cf. Cic. _pro Rosc. Amer._ 35, 100 “Habeo
etiam dicere, quem contra morem majorum, minorem annis LX de ponte
in Tiberim dejecerit”; Festus p. 334 “quo tempore primum per pontem
coeperunt comitiis suffragium ferre, juniores conclamaverunt ut de ponte
dejicerentur sexagenari, qui jam nullo publico munere fungerentur, ut
ipsi potius sibi quam illi deligerent imperatorem.” If _pons_ could
be taken literally, a curious parallel is furnished by early Slavonic
procedure. “The vechés passed whole days in debating the same subjects,
the only interruptions being free fights in the streets. At Novgorod
these fights took place on the bridge across the Volchov, and the
stronger party sometimes threw their adversaries into the river beneath”
(Kovalevsky _Modern Customs and Ancient Laws of Russia_, p. 138).

[1054] p. 221.

[1055] “Eorum qui arma ferre possent” (Liv. i. 44), τῶν ἐχόντων τὴν
στρατεύσιμον ἡλικίαν (Dionys. xi. 63), τῶν ἐν ταῖς ἡλικίαις (Polyb. ii
24).

[1056] Momms. _Staatsr._ ii. p. 411.

[1057] p. 72.

[1058] Beloch _der Italische Bund_ p. 78.

[1059] p. 73.

[1060] The change is put by tradition at the time of the siege of Veii
(403 B.C., Liv. v. 7 “quibus census equester erat, equi publici non erant
adsignati ... senatum adeunt factaque dicendi potestate equis se suis
stipendia facturos promittunt”). Livy here assumes a census as existing
for the _equites equo publico_, but it is questionable whether it was not
transferred from these new _equites_ (_equo privato_ as they are called
by modern historians) to the old equestrian centuries.

[1061] Polyb. vi. πλουτίνδην αὐτῶν γεγενημένης ὑπὸ τοῦ τιμητοῦ τῆς
ἐκλογῆς.

[1062] There is no direct authority for this particular _census_ earlier
than the Principate. The fact that a _census_, approximating to or
identical with the equestrian, was required for _judices_ under the
Gracchan law, and the specification that these should not be senators
or members of senatorial families, led to these judges being called
“knights.” They were selected from a class practically identical with
that of the _equites equo privato_.

[1063] Cic. _pro Cluent._ 48, 134.

[1064] Suet. _Claud._ 16.

[1065] Val. Max. ii. 9, 7.

[1066] Cic. _de Rep._ iv. 2, 2. So Pompeius, a consul who had never been
a senator (70 B.C.), claims and obtains his discharge before he enters on
his office (Plut. _Pomp._ 22).

[1067] Plut. _C. Gracch._ 2. See p. 184.

[1068] Liv. xxvii. 11 (209 B.C.) “(Censores) addiderunt acerbitati (the
deprivation of the public horse) etiam tempus, ne praeterita stipendia
procederent eis, quae equo publico meruerant, sed dena stipendia equis
privatis facerent.”

[1069] Gell. iv. 12; Festus p. 108.

[1070] Cic. _pro Cluent._ 48, 134; Liv. xxix. 37. Removal from the ranks
is described as a deprivation of the horse (_adimere equum_, Liv. xxiv.
18, xli. 2, 7).

[1071] A fragment of a censorian edict of 92 B.C. directed against the
“Latini rhetores” has been preserved. It contains the words “Haec nova,
quae praeter consuetudinem ac morem majorum fiunt, neque placent neque
recta videntur” (Suet. _de Clar. Rhet._ 1; Gell. xv. 11, 2).

[1072] “Judex domesticus,” “domesticus magistratus” (Sen. _Controv._ ii.
3; _de Benef._ iii. 11).

[1073] Cic. _de Rep._ iv. 6, 16 “Nec vero mulieribus praefectus
praeponatur, qui apud Graecos creari solet; sed sit censor qui viros
doceat moderari uxoribus.”

[1074] Dionys. xx. 13.

[1075] p. 55.

[1076] Dionys. l.c.

[1077] Festus p. 344.

[1078] Cic. _de Leg._ iii. 3, 7 “coelibes esse prohibento.”

[1079] Val. Max. ii. 9, 1 “Camillus et Postumius censores aera poenae
nomine eos, qui ad senectutem coelibes pervenerant, in aerarium deferre
jusserunt.”

[1080] Liv. xxxix. 19.

[1081] Cic. _Phil._ ii. 28, 69.

[1082] Val. Max. ii. 9, 2 “M. Val. Maximus et C. Junius Brutus Bubulcus
censores ... L. Annium senatu moverunt, quod, quam virginem in
matrimonium duxerat, repudiasset, nullo amicorum in consilio adhibito.”

[1083] Plin. _H. N._ xviii. 3, 11.

[1084] Plut. _Ti. Gracch._ 14; Val. Max. ii. 9, 4. For excessive taxation
imposed on articles of luxury see Liv. xxxix. 44; Plut. _Cat. Maj._ 18;
and p. 221.

[1085] Cf. Gell. v. 13 “M. Cato in oratione, quam dixit apud censores in
Lentulum, ita scripsit: ‘quod majores sanctius habuere defendi pupillos
quam clientem non fallere.’”

[1086] Greenidge _Infamia in Roman Law_ p. 67.

[1087] Even amateur performances might call down the _nota_. See Suet.
_Dom._ 8 (Domitian) “suscepta correctione morum ... quaestorium virum,
quod gesticulandi saltandique studio teneretur, movit senatu.”

[1088] The _lex Julia Municipalis_ excludes them, like actors, from
the municipal senate; the _lex Acilia repetundarum_ from the bench of
_judices_.

[1089] Suet. _Aug._ 39 “notavitque aliquos quod, pecunias levioribus
usuris mutuati, graviori foenore collocassent.”

[1090] Plut. _Cat. Maj._ 17; _C. Gracch._ 2.

[1091] Gell. xiv. 7 “opus etiam censorium fecisse existimatos, per quos
eo tempore (i.e. at an unlawful time) senatus consultum factum esset.”

[1092] Cic. _de Div._ i. 16, 29 “Appius ... censor C. Ateium (tribune 55
B.C.) notavit, quod ementitum auspicia subscriberet.”

[1093] Val. Max. ii. 9, 5 “M. autem Antonius et L. Flaccus censores (97
B.C.) Duronium senatu moverunt, quod legem de coercendis conviviorum
sumptibus latam tribunus plebi abrogaverat.”

[1094] Cic. _pro Cluent._ 42, 119; 43, 121; Suet. _Dom._ 8.

[1095] Liv. xxiv. 18; xxvii. 11 and 25.

[1096] In 204 B.C. the censor M. Livius disfranchised for the purposes
of the _comitia centuriata_ (_aerarios reliquit_) thirty-four out of the
thirty-five tribes “quod et innocentem se condemnassent et condemnatum
consulem et censorem fecissent” (Liv. xxix. 37).

[1097] _Lex Jul Munic._ l. 120.

[1098] Cic. _de Off._ iii. 31, 111 “indicant (the sanctity of the oath
in former times) notiones animadversionesque censorum, qui nulla de re
diligentius quam de jure jurando judicabant.”

[1099] To this form of disqualification the name “mediate _infamia_” has
been given by modern jurists.

[1100] Cic. _pro Cluent._ 42, 120 “quos autem ipsi L. Gellius et Cn.
Lentulus duo censores ... furti et captarum pecuniarum nomine notaverunt,
ii non modo in senatum redierunt. sed etiam illarum ipsarum rerum
judiciis absoluti sunt.”

[1101] Liv. xxix. 37 (in 204 B.C., Claudius Nero) “M. Livium (his
colleague), quia populi judicio esset damnatus, equum vendere jussit.”

[1102] It enacted “ut quem populus damnasset cuive imperium abrogasset in
senatu ne esset” (Ascon. _in Cornelian._ p. 78).

[1103] Dio Cass. xxxvi. 21.

[1104] Liv. xlv. 15 “omnes iidem ab utroque et tribu remoti et aerarii
facti”; xliv. 16 “tribu quoque is motus et aerarius factus”; xxvii. 11;
xxix. 37 “aerarios reliquit.”

[1105] See Greenidge _Infamia in Roman Law_ pp. 106-110. Mommsen
(_Staatsr._ ii. pp. 402 ff.) makes the expressions _tribu movere_ and
_in aerarios referre_ identical after 312 B.C. and interprets both as
signifying the removal from a higher to a lower tribe.

[1106] Liv. i. 44; Dionys. iv. 22.

[1107] At each _lustrum vota_ were offered “quae in proximum lustrum
suscipi mos est” (Suet. _Aug._ 97). Before the censorship of Scipio
Aemilianus it had been the custom to pray “ut populi Romani res meliores
amplioresque facerent”; after it, on his initiative, “ut eas perpetuo
incolumes servent” (Val. Max. iv. 1, 10).

[1108] Cic. _de Leg. Agr._ ii. 19, 50 and 51; 29, 81. The leases were
sometimes of considerable duration (Hyginus p. 116 Lachm. “Ex hoste
capti agri postquam divisi sunt per centurias ... qui superfuerunt agri
vectigalibus subjecti sunt, alii per annos [quinos], alii per annos
centenos pluresve: finito illo tempore iterum veneunt locanturque ita ut
vectigalibus est consuetudo”).

[1109] e.g. a _lex censoria_ enjoined that not more than five thousand
workmen should be employed in the gold mines of Vercellae by the
contractor who worked them (Plin. _H.N._ xxxiii. 78).

[1110] The jurists inform us that this is the true sense of _publicanus_;
the _conductores_ are only _publicanorum loco_ (_Dig._ 39, 4, 12, 13).
In common parlance, however, both are _publicani_, and this usage
is etymologically justifiable, since they are both concerned with a
_publicum_, a word which denotes state revenue and state service (_Dig._
39, 4, 1; Tac. _Ann._ xiii. 51; Liv. xxiii. 49, 1).

[1111] _Vectigal_ (ἀποφορά Plut. _Ti. Gracch._ 8; cf. App. _B.C._ i. 7).
In the case of pasture land it was called _scriptura_ (Festus p. 833).

[1112] _Lex agraria_ l. 85 “ex lege dicta, quam ... censores ...
deixerunt, publicano dare oportuit.”

[1113] Cic. _in Verr._ ii. 26, 63; 60, 147; iii. 7, 18.

[1114] ib. iii. 6, 12 and 14.

[1115] Polyb. vi. 17. The Senate can συμπτώματος γενομένου κουφίσαι
καὶ τὸ παράπαν ἀδυνάτου τινὸς συμβάντος ἀπολῦσαι τῆς ἐργωνίας. Cf. the
section on the Senate’s control of property. In 169 and 59 B.C. we find
the people releasing from an oppressive contract (Liv. xliii. 16; App.
_B.C._ ii. 13).

[1116] Cic. _de Leg._ iii. 3, 7 “templa, vias, aquas ... tuento”; _ad
Fam._ xiii. 11, 1 “sarta tecta (i.e. the repairs of walls and roofs)
aedium sacrarum locorumque communium tueri.”

[1117] Cf. Liv. xxxix. 44 “ultro tributa infimis (pretiis) locaverunt.”

[1118] ib. xliv. 16 “ad opera publica facienda cum eis (censoribus)
dimidium ex vectigalibus ejus anni attributum ex senatus consulto a
quaestoribus esset”; xl. 46 “censoribus deinde postulantibus ut pecuniae
summa sibi, qua in opera publica uterentur, attribueretur, vectigal
annuum decretum est.”

[1119] _Lex Jul. Munic._ l. 73; Liv. xxxix. 44 (quoted n. 2).

[1120] Mommsen (_Staatsr._ ii. p. 446) takes the phrase to mean something
“voluntarily granted” by the Senate to the magistrate.

[1121] Liv. xxxix. 44. The later tendency, however, was for such public
rights to be protected by the praetor’s interdicts.

[1122] ib. xl. 51 “complura sacella publica quae fuerant occupata a
privatis publica sacraque ut essent paterentque populo curarunt.”

[1123] ib. xliii. 16 “censores ad pignora capienda miserunt multamque pro
contione privato dixerunt.”

[1124] _Lex agraria_ ll. 35, 36.

[1125] ib.

[1126] p. 208.

[1127] p. 93.

[1128] p. 94.

[1129] pp. 95 ff.

[1130] p. 190.

[1131] p. 162.

[1132] p. 126.

[1133] Cic. _de Leg. Agr._ ii. 7, 17 “toties legibus agrariis curatores
constituti sunt triumviri quinqueviri decemviri.” Cf. ib. ii. 12, 31
“eodem jure ... quo habuerunt (pullarios) tresviri lege Sempronia.”

[1134] ib. ii. 7, 16 “jubet enim (the agrarian law of Rullus) tribunum
plebis, qui eam legem tulerit, creare decemviros per tribus septemdecim,
ut, quem novem tribus fecerint, is decemvir sit.”

[1135] pp. 174, 177.

[1136] The nature of the Sullan limitations is unknown. Caesar says
“Sullam nudata omnibus rebus tribunicia potestate tamen intercessionem
liberam reliquisse” (_B.C._ i. 7), and Cicero “Sullam probo, qui tribunis
plebis sua lege injuriae faciendae potestatem ademerit, auxilii ferendi
reliquerit” (_de Leg._ iii. 9, 22). He probably formulated cases in which
it could not be employed. There are instances of the tribunician veto
between 81 B.C. and 70 B.C., the date of the restoration of the tribune’s
power. See Momms. _Staatsr._ ii p. 308 nn. 1 and 2.

[1137] p. 162.

[1138] p. 182.

[1139] Cic. _de Leg._ iii. 3, 6.

[1140] Festus p. 233; Dio Cass. liv. 26.

[1141] Liv. _Ep._ xi.

[1142] Cic. _de Leg._ iii. 3, 6; Sall. _Cat._ 55.

[1143] Val. Max. vi. 1, 10; Cic. _pro Cluent._ 13, 38.

[1144] Ascon. _in Milon._ p. 38.

[1145] Plaut. _Amph._ l. 1, 3.

[1146] Pompon. in _Dig._ 1, 2, 2, 30. The full official title which first
appears in 44 B.C. is _a_(_uro_) _a_(_rgento_) _a_(_ere_) _f_(_lando_)
_f_(_eriundo_). For this title and its variants see Momms. _Staatsr._ ii.
p. 602 n. 3.

[1147] Momms. _Staatsr._ ii p. 601.

[1148] Verbally the second title might, and perhaps should, refer to the
_viae_ of Italy. But the office is probably an urban magistracy. See ib.
p. 604.

[1149] Liv. iii. 55.

[1150] Cic. _de Leg._ iii. 3, 6. For their jurisdiction in cases of
freedom in the Ciceronian period see Cic. _pro Caec._ 39, 97; _pro Domo_
29, 78.

[1151] Festus p. 233.

[1152] p. 207.

[1153] This was the case with C. Claudius Pulcher (_C.I.L._ i. p. 279),
C. Junius (Cic. _pro Cluent._ 29, 79), and C. Julius Caesar (Suet.
_Caes._ 11).

[1154] p. 189.

[1155] Cic. _pro Cluent._ 33, 91.

[1156] Mommsen inclines to think that the office followed as a matter of
course on the aedileship (_Staatsr._ ii. p. 590).

[1157] p. 155.

[1158] Liv. ix. 30.

[1159] p. 234.

[1160] p. 43.

[1161] p. 102.

[1162] p. 126.

[1163] Cic. _pro Caec._ 33, 95; cf. _pro Domo_ 40, 106 “Quae tua fuit
consecratio? Tuleram, inquit, ut mihi liceret. Quid? Non exceperas ut, si
quid jus non esset rogari, ne esset rogatum?”

[1164] Valerius Probus gives the formula which emphasises this religious
aspect of the saving clause. It was SI QUID SACRI SANCTI EST QUOD NON
JURE SIT ROGATUM, EJUS HAC LEGE NIHIL ROGATUR.

[1165] See p. 107.

[1166] Cic. _pro Domo_ 20, 53 “quae (est) sententia Caeciliae legis et
Didiae nisi haec, ne populo necesse sit in conjunctis rebus compluribus
aut id quod nolit accipere aut id quod velit repudiare?” The principle
had existed as early as the _lex Acilia Repetundarum_ of 122 (l. 72). See
Mommsen _Staatsr._ iii. p. 336.

[1167] Liv. viii. 23.

[1168] ib. ix. 42. Compare, however, x. 22 (296 B.C.), where the
_plebiscitum_ and the _senatus consultum_ are both mentioned in connexion
with the prorogation of the command of L. Volumnius. For the recognition
of the _imperium_ of the consul for a single day to enable him to
triumph, see p. 158.

[1169] Liv. xxxviii. 54-60.

[1170] ib. xlii. 21 and 22.

[1171] Cic. _de Fin._ ii. 16, 54.

[1172] The _quaestio Mamilia_ of 110 B.C. (Sall. _Jug._ 40).

[1173] p. 14.

[1174] The _lex Plautia Papiria_ (Cic. _pro Arch._ 4, 7; see p. 311) was
the work of two tribunes.

[1175] Cic. _pro Balbo_ 21, 48 “lege Appuleia ... qua lege Saturninus
C. Mario tulerat, ut in singulas colonias ternos cives Romanos facere
posset.”

[1176] ib. 8, 19 “lege quam L. Gellius Cn. Cornelius (coss. 72 B.C.) ex
senatus sententia tulerunt ... videmus satis esse sanctum ut cives Romani
sint ii, quos Cn. Pompeius de consilii sententia singillatim civitate
donaverit.”

[1177] Val. Max. v. 2, 8 “(C. Marius) duas ... Camertium cohortes mira
virtute vim Cimbrorum sustinentis in ipsa acie adversus condicionem
foederis civitate donavit.”

[1178] Momms. _Staatsr._ iii. p. 135 n. 5.

[1179] Cic. _pro Caec._ 35, 101.

[1180] Liv. xxvi. 33 (speech of M. Atilius Regulus) “‘Per senatum agi de
Campanis, qui cives Romani sunt, injussu populo non video posse. Idque et
apud majores nostros in Satricanis factum est (319 B.C.) cum defecissent,
ut M. Antistius tribunus plebis prius rogationem ferret scisceretque
plebs uti senatui de Satricanis sententiae dicendae jus esset. Itaque
censeo cum tribunis plebis agendum esse ut eorum unus pluresve rogationem
ferant ad plebem qua nobis statuendi de Campanis jus fiat.’ L. Atilius
tribunus plebis ex auctoritate senatus plebem in haec verba rogavit ...
Plebes sic jussit, ‘Quod senatus juratus, maxima pars, censeat, qui
adsidetis, id volumus jubemusque.’”

[1181] ib. xxxviii. 36 “edocti populi esse, non senatus, jus suffragii
quibus velit impertiri, destiterunt incepto.”

[1182] p. 229.

[1183] Liv. xlv. 15 (169 B.C.; on the proposal of the censor Sempronius
to disfranchise the freedmen, his colleague Claudius) “negabat ...
suffragii lationem injussu populi censorem cuiquam homini, nedum ordini
universo adimere posse: neque enim, si tribu movere posset, quod sit
nihil aliud quam mutare jubere tribum, ideo omnibus quinque et triginta
tribubus emovere posse, id est civitatem libertatemque eripere.”

[1184] In Liv. vii. 16 (357 B.C.) we find the account of the creation of
the _vicesima manumissionis_ by the _comitia tributa populi_.

[1185] This change was effected by a _lex Aebutia_ (Gell. xvi. 10, 8;
Gaius iv. 30).

[1186] p. 205.

[1187] The fullest _praescriptio_ which has been preserved is that of
the _lex Quinctia de aquaeductibus_, a consular law of 9 B.C. (Frontinus
_de aquaeductibus_ 129). It runs: “T. Quinctius Crispinus consul populum
jure rogavit populusque jure scivit in foro pro rostris aedis divi Juli
pr(idie) [k] Julias. Tribus Sergia principium fuit, pro tribu Sex.... L.
f. Virro [primus scivit].”

[1188] Ulpian _Reg. praef._ 2 “Minus quam perfecta lex est, quae vetat
aliquid fieri et, si factum sit, non rescindit, sed poenam injungit ei
qui contra legem fecit.” The Licinio-Sextian agrarian law of 367 was
apparently of this kind.

[1189] Macrob. _Comm. in Somn. Scip._ ii. 17, 13 “inter leges quoque illa
imperfecta dicitur, in qua nulla deviantibus poena sancitur.”

[1190] Cic. _ad Att._ iii. 23, 2 “alteram caput est tralaticium de
impunitate SI QUID CONTRA ALIAS LEGES EJUS LEGIS ERGO FACTUM SIT.”

[1191] Ulpian _op. cit._ 3 “Lex aut rogatur, id est, fertur; aut
abrogatur, id est, prior lex tollitur; aut derogatur, id est, pars primae
(legis) tollitur; aut subrogatur, id est, adjicitur aliquid primae legi;
aut obrogatur, id est, mutatur aliquid ex prima lege.” Cf. the clause in
a law cited by Cicero (_ad Att._ iii. 23, 3) “SI QUID IN HAC ROGATIONE
SCRIPTUM EST, QUOD PER LEGES PLEBISVE SCITA PROMULGARE, ABROGARE,
DEROGARE, OBROGARE SINE FRAUDE SUA NON LICEAT.”

[1192] Cic. l.c. 23, 2 “neque enim ulla (lex) est, quae non ipsa se
saepiat difficultate abrogationis. Sed, cum lex abrogatur, illud ipsum
abrogatur, quo modo eam abrogari [_non_] oporteat.”

[1193] p. 239.

[1194] See the section on the Senate.

[1195] Livy describes a controversy whether from this point of view an
armistice (_indutiae_) rested on a level with a _pax_: (iv. 30) “cum
Veientibus ... indutiae, ... non pax facta ... ante diem rebellaverant
... controversia inde fuit utrum populi jussu indiceretur bellum an satis
esset senatus consultum. Pervicere tribuni ... ut Quinctius consul de
bello ad populum ferret: omnes centuriae jussere.”

[1196] Polyb. vi. 14 ὑπὲρ εἰρήνης οὖτος (ὁ δῆμος) βουλεύεται καὶ πολέμου.

[1197] Mommsen _Staatsr._ iii. p. 343.

[1198] See the section on the Senate.

[1199] Polyb. i. 62 (agreement between Lutatius Catulus and the
Carthaginians in 241 B.C.) ἐπὶ τοῖσδε φιλίαν εἶναι Καρχηδονίοις καὶ
Ῥωμαίοις, ἐὰν καὶ τῷ δήμῳ τῶν Ῥωμαίων συνδοκῇ. The people rejected the
treaty, but it was subsequently maintained that, but for this saving
clause, it would have been binding (ib. iii. 29).

[1200] ib. vi. 14 καὶ μὴν περὶ συμμαχίας καὶ διαλύσεως καὶ συνθηκῶν οὖτος
(ὁ δῆμος) ἐστιν ὁ βεβαιῶν ἒκαστα τούτων καὶ κύρια ποιῶν ἢ τοὐναντίον.

[1201] Liv. xxix. 12 (205 B.C., peace with Philip of Macedon) “jusserunt
... omnes tribus”; xxx. 43 (201 B.C., peace with Carthage) “De pace ...
omnes tribus jusserunt”; xxxiii. 25 (196 B.C., peace with Philip of
Macedon) “ea rogatio in Capitolio ad plebem lata est. Omnes quinque et
triginta tribus, uti rogas jusserunt.”

[1202] So on the conclusion of the second Punic war (Liv. xxx. 43 “M’.
Acilius et Q. Minucius tribuni plebis ad populum tulerunt ‘Vellent
juberentne senatum decernere ut cum Carthaginiensibus pax fieret, et quem
eam pacem dare quemque ex Africa exercitum deportare juberent’”).

[1203] See _lex Antonia de Termessibus_ (Bruns _Fontes_).

[1204] p. 47.

[1205] p. 187.

[1206] p. 63.

[1207] See below on the competence of the _concilium plebis_.

[1208] See Momms. _Staatsr._ i. p. 195; ii. p. 618.

[1209] See p. 161.

[1210] p. 169.

[1211] p. 211.

[1212] p. 161.

[1213] _Anquisitio_ (a variant of the _quaestio_ of the magistrate when
he investigates on his own authority) perhaps means an “inquiry on both
sides,” i.e. through accusation and defence (Lange _Röm. Alt._ ii. p.
470; cf. Festus p. 22 “anquirere est circum quaerere”).

[1214] Liv. ii. 52 (the tribunes) “cum capitis anquisissent, duo milia
aeris damnato multam edixerunt”; xxvi. 3 (a pecuniary penalty having been
proposed during the first two days) “tertio ... tanta ira accensa est ut
capite anquirendum contio subclamaret.”

[1215] Cic. _pro Dom._ 17, 45 “cum tam moderata judicia populi sint a
majoribus constituta ... ne inprodicta die quis accusetur, ut ter ante
magistratus accuset intermissa die quam multam irroget aut judicet,
quarta sit accusatio trinum nundinum prodicta die, quo die judicium sit
futurum.” Cf. App. _B.C._ i. 74.

[1216] Cic. l.c. “si qua res illum diem aut auspiciis aut excusatione
sustulit, tota causa judiciumque sublatum sit.”

[1217] Dio Cass. xxxvii. 27.

[1218] Cic. _pro Domo_ 82, 86 “at vero ... Kaeso ille Quinctius (cf. Liv.
iii. 13) et M. Furius Camillus et M. Servilius Ahala (cf. Liv. iv. 16,
21) ... populi incitati vim iracundiamque subierunt; damnatique comitiis
centuriatis cum in exilium profugissent, rursus ab eodem populo placato
sunt in suam pristinam dignitatem restituti.”

[1219] Cic. _Brut._ 34, 128; _post Red. in Sen._ 15, 38.

[1220] App. _B.C._ i 31.

[1221] Cic. _pro Planc._ 28, 69; _post Red. in Sen._ 15, 38.

[1222] Cic. _ad Att._ iv. 1, 4.

[1223] _Auct. ad Herenn._ ii. 28, 45.

[1224] Caes. _B.C._ iii. 1 “praetoribus tribunisque plebis rogationes ad
populum ferentibus ... in integrum restituit.” Cf. Suet. _Caes._ 41; Dio
Cass, xliii. 27.

[1225] “de alea condemnatum” (Cic. _Phil._ ii. 23, 56), that is,
probably, under the _lex Cornelia de falsis_ (Rein _Criminalrecht_ p.
833).

[1226] See p. 248.

[1227] Plut. _Mar._ 43; cf. Vell. ii. 21; App. _B.C._ i. 70.

[1228] App. _B.C._ iii. 95.

[1229] Vell. ii. 58; cf. Cic. _Phil._ i. 1, 1.

[1230] Dio Cass. xlix. 43.

[1231] pp. 166, 179.

[1232] p. 239.

[1233] When Varro says (_L.L._ vi. 30) “magistratus vitio creatus nihilo
secius magistratus” he is reflecting the practical procedure—hardly
the constitutional theory, unless the _dictum_ implies that repeal is
impossible because unnecessary, and that there is no authority for
determining the nullity of the election.

[1234] Cicero says, with respect to the law exiling him, that there was
some point in its being held invalid as a _privilegium_, “sed multo est
melius abrogari” (_ad Att._ iii. 15, 5).

[1235] Laelius Felix ap. Gell. xv. 27, 5 “Cum ex generibus hominum
suffragium feratur, ‘curiata’ comitia esse, cum ex censu et aetate
‘centuriata,’ cum ex regionibus et locis, ‘tributa.’”

[1236] How easily one _comitia_ could melt into another is shown by the
words of Cicero [_ad Fam._ vii. 30 (44 B.C.)] “Ille autem (Caesar), qui
comitiis tributis esset auspicatus, centuriata habuit.”

[1237] See Appendix on the _comitia tributa_.

[1238] p. 49.

[1239] Messala ap. Gell. xiii. 15, 4 “Minoribus creatis magistratibus
tributis comitiis magistratus, sed justus curiata datur lege.”

[1240] Dio Cass. xxxix. 19.

[1241] ib. xli. 43.

[1242] Cic. _de Leg. Agr._ ii. 12, 30 “consuli, si legem curiatam non
habet, attingere rem militarem non licet.”

[1243] Sulla’s law had said that the magistrate should retain _imperium_
until he re-entered the city, apparently without mentioning the _lex
curiata_. App. Claudius, consul for 54 B.C., who had been prevented by
the tribunician veto from getting his _lex curiata_ passed, presumed on
this silence and said “legem curiatam consuli ferri opus esse, necesse
non esse; se, quoniam ex senatus consulto provinciam haberet, lege
Cornelia imperium habiturum quoad in urbem introisset” (Cic. _ad Fam._ i.
9, 25).

[1244] Cic. _de Leg. Agr._ ii. 12, 31.

[1245] p. 26.

[1246] Gell. xv. 27, 1 “‘calata’ comitia esse, quae pro conlegio
pontificum habentur aut regis aut flaminum inaugurandorum causa. Eorum
autem alia esse ‘curiata,’ alia ‘centuriata’ ... Isdem comitiis, quae
‘calata’ appellari diximus, et sacrorum detestatio et testamenta fieri
solebant.” It is not known what particular acts were reserved for the
“comitia calata” assembled _centuriatim_; Mommsen thinks the inauguration
of the Flamen Martialis outside the city (_Staatsr._ iii. p. 307).

[1247] p. 107.

[1248] pp. 107, 246.

[1249] p. 244.

[1250] Liv. i. 43 “Nec mirari oportet hunc ordinem, qui nunc est post
expletas quinque et triginta tribus duplicate earum numero centuriis
juniorum seniorumque, ad institutam ab Servio Tullio summam non
convenire.” Cf. Dionys. iv. 21. The description of Cicero (_de Rep._
ii. 22, 39 and 40) probably refers to the Servian arrangement, although
Mommsen (_Staatsr._ iii. p. 275) holds that it refers to the reformed
_comitia_. The description given in the text is in essentials that of
Pantagathus (died 1567) _ap. Ursinum in_ Liv. i. 43. For the different
systems that have been adopted see Willems _Le Droit Public_ p. 97.
Mommsen (l.c.) admits the 70 votes for the 70 centuries of the first
class, but thinks that the 280 centuries of the other classes were so
combined as to form but 100 votes; the total votes being 70 + 100 + 5 +
18 = 193, as before.

[1251] p. 73.

[1252] Cic. _Phil._ ii. 33, 82 “Ecce Dolabellae comitiorum dies: sortitio
praerogativae: quiescit. Renuntiatur, tacet. Prima classis vocatur:
renuntiatur. Deinde, ita ut assolet, suffragia; tum secunda classis.”

[1253] Liv. xliii. 16 “cum ex duodecim centuriis equitum octo censorem
condemnassent, multaeque aliae primae classis.” It would seem as though
the _sex suffragia_ (p. 73) voted with or after the first class.
Drakenborch would read _octodecim_ for _duodecim_, but this would seem to
give too small a number of condemnatory votes amongst the _equites_.

[1254] Cic. _pro Planc._ 20, 49.

[1255] Hence such expressions as _Aniensis juniorum_, _Veturia juniorum_,
_Galeria juniorum_ (Liv. xxiv. 7; xxvi. 22; xxvii. 6).

[1256] App. _B.C._ i. 59.

[1257] See Appendix on the _comitia tributa_.

[1258] p. 107.

[1259] Liv. xxv. 4 (212 B.C.) “Tribuni plebem rogaverunt plebesque ita
scivit, ‘Si M. Postumius ante K. Maias non prodisset citatusque eo die
non respondisset neque excusatus esset, videri eum in exilio esse,
bonaque ejus venire, ipsi aqua et igni placere interdici”; ib. xxvi. 3
(211 B.C.) “Cn. Fulvius exulatum Tarquinios abiit. Id ei justum exilium
esse scivit plebs.”

[1260] When Plutarch says (_C. Gracch._ 4) that C. Gracchus gave the
right of trying such cases τῷ δήμῳ, this word may include the Plebs.
Gracchus at least seems to have banished the ex-consul Popilius by means
of a _plebiscitum_ (Cic. _pro Domo_ 31, 82 “ubi enim tuleras ut mihi aqua
et igni interdiceretur? quod Gracchus de P. Popilio ... tulit”).

[1261] App. _B.C._ i. 59.

[1262] This conclusion has been drawn from the words of Cicero (_in
Verr._ Act i. 13, 38) “judiciis ad senatorium ordinem translatis
sublataque populi Romani in unum quemque vestrum potestate.”

[1263] Cic. _de Leg. Agr._ ii. 7, 18 “Quod populus per religionem
sacerdotia mandare non poterat, ut minor pars populi vocaretur.”

[1264] For this presidency by the youngest pontifex (the one, i.e., who
stood the least chance of election) see Liv. xxv. 5 (212 B.C.). From Cic.
_ad Brut._ i. 5, 4 it follows that the consuls had something to do with
arranging the elections, but not that they were ever the presidents.

[1265] Cic. _de Leg. Agr._ ii. 7, 18; Vell. ii. 12, 3.

[1266] Dio Cass. xxxvii. 37.

[1267] Macrob. _Sat._ i. 16, 29 “Julius Caesar XVI auspiciorum libro
negat nundinis contionem advocari posse, id est cum populo agi ideoque
nundinis Romanorum haberi comitia non posse.”

[1268] Varro _L.L._ v. 155 “comitium ab eo quod coibant eo comitiis
curiatis et litium causa.”

[1269] Liv. vi. 20; Plin. _H.N._ xvi. 10, 37.

[1270] Liv. vii. 16.

[1271] The change to the Forum is perhaps post-Gracchan; see Momms.
_Staatsr._ iii. p. 385. Cf. the prescription of the _lex Quinctia de
aquaeductibus_ (p. 242).

[1272] Gell. xiii. 15, 1 “In edicto consulum, quo edicunt quis dies
comitiis centuriatis futurus sit.” “Comitia edicere” (Liv. xxiii. 31) and
“comitia indicere” (Liv. iv. 6) are employed as descriptive of this act.

[1273] Festus p. 224 “promulgari leges dicuntur cum primum in vulgus
eduntur, quasi provulgari.”

[1274] Momms. _Staatsr._ iii. p. 370.

[1275] Schol. Bob. to Cic. _pro Sest._ 64, 135 (p. 310) “(lex) Licinia
et Junia ... illud cavebat ne clam aerario legem ferri liceret.” For
registration in the _aerarium_ at the time of promulgation cf. Cic. _de
Leg._ iii. 4, 11. Clodius’ law exiling Cicero in 58 B.C. was amended
(Cic. _ad Att._ iii. 2 “praesertim nondum rogatione correcta”), but
whether before or after promulgation is not clear.

[1276] Dionysius, Plutarch, and Priscian explain _trinum nundinum_ as the
third market-day, an interval of _trinarum nundinarum_, i.e. seventeen
days; but Mommsen has made out a good case for its being three _nundina_,
i.e. intervals of eight days (_Staatsr._ iii. p. 375).

[1277] p. 164.

[1278] p. 38.

[1279] Varro _L.L._ vi. 91 “comitiatum praeco populum vocet ad te, et eum
de muris vocet praeco.”

[1280] The herald is not mentioned in connexion with the _concilium
plebis_. The _comitia curiata_ were summoned by a _lictor curiatius_. See
Momms. _Staatsr._ iii. p. 386.

[1281] Gell. xv. 27; Dio Cass. xxxvii. 27.

[1282] Varro _L.L._ vi. 92; Plut. _C. Gracch._ 3.

[1283] “Sollemne carmen precationis” (Liv. xxxix. 15).

[1284] Cic. _de Leg._ iii. 4, 11 “qui agent ... rem populum docento”;
Quintil. _Inst. Or._ ii. 4, 33 “Romanis pro contione suadere ac
dissuadere moris fuit.”

[1285] Except perhaps at the _comitia centuriata_ (Momms. iii. p. 395),
but this body had almost ceased to be a legislative assembly.

[1286] p. 247.

[1287] Originally _licium_, later _saepta_ or _ovile_.

[1288] Liv. ii. 56; cf. Asc. _in Cornel._ p. 70 “discedere, quod verbum
... significat ... [ut] in suam quisque tribum discedat, in qua est
suffragium laturus.”

[1289] Hence the expression _ferre punctum_ (Cic. _pro Planc._ 22, 53).

[1290] Liv. v. 13; iii. 21.

[1291] Cic. _de Leg._ iii. cc. 15, 16.

[1292] Hence the discovery of a fraud at an election through tablets
being μιᾷ χειρὶ γεγραμμέναις (Plut. _Cat. Min._ 46).

[1293] Cic. _cum Sen. Gr. eg._ 11, 28; _in Pis._ 15, 36.

[1294] Plin. _H.N._ xxxiii. 2, 31; Cic. _cum Sen. Gr. eg._ 7, 17.

[1295] p. 253.

[1296] The first curia or tribe is the _principium_. See the prescription
of the _lex Quinctia_ (p. 242). Even after the ballot was introduced the
name of the first voter in a division was specified (_primus scivit_,
l.c.).

[1297] _Tribus_ or _centurias non explere_ is said of such candidates
(Liv. iii. 64; xxxvii. 47). Cf. Liv. xxii. 35.

[1298] Cic. _in Pis._ 15, 36 “hoc certe video quod indicant tabulae
publicae vos rogatores, vos diribitores, vos custodes fuisse tabularum.”
It is the list of votes as certified by the guardians and tellers rather
than the separate voting tablets that Cicero here speaks of. But the
tablets themselves were kept for a time in _loculi_ (Varro _R.R._ iii. 5,
18).

[1299] Cic. _de Leg._ iii. 20, 46 “Legum custodiam nullam habemus. Itaque
eae leges sunt quas apparisores nostri volunt; a librariis petimus.”

[1300] See the evidences collected by Mommsen (_Staatsr._ iii. pp.
418-419). It is from this practice that _figere_ and _refigere_ are used
of the publication and annulling of laws.

[1301] p. 219.

[1302] Cic. _pro Sest._ 65, 137 “senatum reipublicae custodem, praesidem,
propugnatorem collocaverunt (majores); hujus ordinis auctoritate uti
magistratus et quasi ministros gravissimi consilii esse voluerunt.”

[1303] Festus p. 142 “mulleos genus calceorum aiunt esse, quibus reges
Albanorum primi, deinde patricii sunt usi.”

[1304] Hence the distinction between the patrician and plebeian form of
shoe (Mommsen _Staatsr._ iii. p. 891). In the time of Cato the elder this
footgear was only worn by the plebeian senator “qui magistratum curulem
cepisset” (Festus l.c.).

[1305] For an investiture of boys with the _latus clavus_ earlier than
the rule of Augustus, see Suet. _Aug._ 94.

[1306] Tac. _Ann._ xi. 22 “post lege Sullae viginti (quaestores) creati
supplendo senatui.”

[1307] Gell. iv. 10, 8 “Erat ... jus senatori ut sententiam rogatus
diceret ante quicquid vellet aliae rei et quoad vellet.” For this
practice of _egredi relationem_ see Tac. _Ann._ ii. 33.

[1308] “Delenda est Carthago” (Florus ii. 15); cf. App. _Lib._ 69.

[1309] An attempt to violate this order was made in 56 B.C., “cum Lupus
tribunus pl.... intendere coepit ante se oportere discessionem facere
quam consules. Ejus orationi vehementer ab omnibus reclamatum est; erat
enim et iniqua et nova” (Cic. _ad Fam._ i. 2, 2).

[1310] The consul Marcellus thus dismissed the Senate in 50 B.C. on its
favouring the proposal that both Pompeius and Caesar should lay down
their commands (App. _B.C._ ii. 30).

[1311] Gell. iv. 10, 8.

[1312] ib. l.c.; Suet. _Caes._ 20.

[1313] Gell. xiv. 7, 9 (from the _Commentarius_ of Varro) “singulos
autem debere consuli gradatim incipique a consulari gradu. Ex quo gradu
semper quidem antea primum rogari solitum qui princeps in senatum lectus
esset; tum autem, cum haec scriberet, novum morem institutum refert per
ambitionem gratiamque ut is primus rogaretur quem rogare vellet qui
haberet senatum, dum is tamen ex gradu consulari esset.” For this _novus
mos_ cf. Cic. _ad Att._ i. 13, 2 (61 B.C.) “Primum igitur scito primum
me non esse rogatum sententiam praepositumque esse nobis pacificatorem
Allobrogum” (C. Calpurnius Piso, a relative of the presiding consul).

[1314] Sall. _Cat._ 50 (in the debate on the Catilinarian conspirators)
“D. Junius Silanus primus sententiam rogatus quod eo tempore consul
designatus erat.”

[1315] Festus p. 210 “(Pedarius senator) ita appellator quia tacitus
transeundo ad eum, cujus sententiam probat, quid sentiat indicat.” Cf.
Gell. iii. 18. The explanation cited by Festus is true only so far as it
expresses a usual circumstance of debate. The name _pedarius_ is probably
derived from the absence of the curule chair (Gavius Bassus ap. Gell.
l.c.).

[1316] Vell. ii. 35 “Hic tribunus plebis designatus ... paene inter
ultimos interrogatus sententiam”; Cic. _ad Att._ xii. 21, 1 “Cur ergo in
sententiam Catonis? Quia verbis luculentioribus et pluribus rem eandem
(i.e. the opinion already expressed by _consulares_) comprehenderat.”

[1317] See p. 270 n. 2.

[1318] In a rough estimate of the house (61 B.C.) Cicero mentions 15 on
one side of a question, “quite 400” on the other (_ad Att._ i. 14, 5). On
Curio’s proposal in 50 B.C. that both Pompeius and Caesar should lay down
their commands, 22 dissented, 370 approved (App. _B.C._ ii. 30). In the
latter case there seems to have been no formal division (see p. 268 n.
2); and in both the small numbers may be the result of exact computation,
the large either of a guess or of a deduction drawn from an already
counted quorum.

[1319] “Verbo adsentiri” (Sall. _Cat._ 52); cf. Cic. _ad Fam._ v. 2, 9
“sedens iis adsensi.”

[1320] “In alienam sententiam pedibus ire” (Gell. iii. 18, 1).

[1321] The invitation to divide on the _sententia_ was couched in the
form “Qui hoc censetis, illuc transite: qui alia omnia, in hanc partem”
(Festus p. 261). Hence the colloquial phrase “ire in alia omnia” for
negativing a proposal at the Senate (Cic. _ad Fam._ i. 2, 1).

[1322] Cic. _ad Att._ i. 14, 3 “totum hunc locum, quem ego ... soleo
pingere, de flamma, de ferro—nosti illas ληκύθους.”

[1323] p. 179.

[1324] Cic. _ad Fam._ viii. 8, 5 ff. In § 6 we find the formula “Si quis
huic s. c. intercesserit, senatui placere auctoritatem perscribi.”

[1325] ib. l.c. § 6 “Pr. Kal. Octobres in aede Apollinis scrib. adfuerunt
L. Domitius Cn. f. Fab. Ahenobarbus,” etc.

[1326] p. 148.

[1327] Plut. _Ti. Gracch._ 10; App. _B.C._ i. 12.

[1328] Polyb. xxx. 4. For the motive of the veto see Liv. xlv. 21 “M.
Juventius Thalna ... praetor novo maloque exemplo rem ingressus erat,
quod, ante non consulto senatu, non consulibus certioribus factis, de
sua unius sententia rogationem ferret vellent juberentne Rhodiis bellum
indici, cum antea semper prius senatus de bello consultus esset, deinde
ex auctoritate patrum ad populum latum.”

[1329] Suet. _Caes._ 16 (Caesar supported Metellus in carrying)
“turbulentissimas leges adversus collegarum intercessionem ... donec ambo
administratione reipublicae decreto patrum submoverentur.”

[1330] In this case the prohibition was effected through the coercive
power of the consul springing from his _majus imperium_ (Dio Cass. xlii.
23).

[1331] Tac. _Ann._ ii. 30 “vetere senatus consulto quaestio in caput
domini prohibebatur.”

[1332] Cic. _ad Att._ v. 21, 13 (50 B.C.) “cum senatus consultum modo
factum sit ... in creditorum causa, ut centesimae perpetuo faenore
ducerentur.”

[1333] Ascon. _in Cornel._ p. 58.

[1334] M. Brutus had gained from the Senate the validation of a bond
(_syngrapha_), by which an exorbitant rate of interest was demanded from
the government of Salamis in Cyprus. Bonds of this kind, through which
obligations were incurred by provincials at Rome, had been rendered
illegal by a _lex Gabinia_ of 67 B.C. (Cic. _ad Att._ v. 21, 12).

[1335] Cic. _pro Domo_ 16, 41 “judicavit senatus M. Drusi legibus, quae
contra legem Caeciliam et Didiam latae essent, populum non teneri.” The
account that the Livian laws were shelved as _contra auspicia_ (Ascon.
_in Cornel._ p. 68 “Philippus cos.... obtinuit a senatu, ut leges ejus
omnes uno s. c. tollerentur. Decretum est enim contra auspicia esse
latas neque eis teneri populum”) may contain one of the grounds of their
abrogation.

[1336] Cic. _ad Att._ iii. 15, 5 “Quod te cum Culleone scribis de
privilegio locutum, est aliquid, sed multo est melius abrogari.”

[1337] p. 204.

[1338] Liv. xxv. 4; Sall. _Cat._ 50; Ascon. _in Milon._ p. 44. The
Senate in this way sometimes interprets a criminal law and extends its
incidence. See Cic. _de Har. Resp._ 8, 15 “decrevit senatus eos qui id
fecissent (i.e. who had disturbed the rebuilding of Cicero’s house) lege
de vi, quae est in eos qui universam rem publicam oppugnassent (i.e. vi
publica) teneri.”

[1339] Cic. _ad Att._ i. 13, 3 “Credo enim te audisse, cum apud Caesarem
pro populo fieret, venisse eo muliebri vestitu virum ... mentionem a
Q. Cornificio in senatu factam ... postea rem ex senatus consulto ad
pontifices relatam, idque ab iis nefas esse decretum; deinde ex senatus
consulto consules rogationem promulgasse.”

[1340] Liv. viii. 18.

[1341] ib. xl. 43 (180 B.C.) “A. C. Maenio praetore (cui, provincia
Sardinia cum evenisset, additum erat ut quaereret de veneficiis longius
ab urbe decem millibus passuum) literae adlatae _se jam tria millia
hominum damnasse_.”

[1342] Liv. xxxix. 41 (184 B.C.); cf. ix. 26 (314 B.C.) and the instance
cited in the next note. In such instances of _quaestiones_ extended to
Italy, it is not clear whether _socii_ as well as _cives_ were executed
summarily by Roman magistrates.

[1343] ib. xxxix. 18. On this point see Zumpt _Criminalrecht der Römer_
i. 2 p. 212.

[1344] _C.I.L._ i. n. 196 (a letter from the consuls to some unknown
magistrates of the _ager Teuranus_ in Brutii) l. 24 “eorum (i.e. the
Senate) sententia ita fuit ‘sei ques esent, quei avorsum ead fecisent,
quam suprad scriptum est, eeis rem caputalem faciendam censuere.’”

[1345] The consul was armed against C. Gracchus, the consuls in 63; the
consuls, praetors, and tribunes in 100 B.C.; the interrex, proconsul, and
all other magistrates with _imperium_ in 77 B.C.

[1346] The decree proposed to meet the threatened revolution of M.
Lepidus in 77 B.C. ran as follows: “quoniam M. Lepidus exercitum privato
consilio paratum cum pessimis et hostibus rei publicae contra hujus
ordinis auctoritatem ad urbem ducit, uti Appius Claudius interrex cum
Q. Catulo pro consule et ceteris, quibus imperium est, urbi praesidio
sint operamque dent ne quid res publica detrimenti capiat” (from speech
of Philippus in Sall. _Hist._ lib. i. frgt. 77, § 22). The historical
instances of the employment of this power are against C. Gracchus and
his adherents in 121 B.C., in the tumult of Saturninus (100), the first
Sullan restoration (88), by the anti-Sullans (82), at the threatened
revolution of M. Lepidus (77), in the Catilinarian conspiracy (63),
during the disturbances raised by Q. Metellus (62), and those preceding
the sole consulship of Pompeius (52), against Caesar (49), against
Dolabella and M. Antonius (43).

[1347] Cf. Sall. _Cat._ 50 “consul ... convocato senatu refert quid de
eis fieri placeat, qui in custodiam traditi erant. Sed eos paulo ante
frequens senatus judivcaerat contra rem publicam fecisse.”

[1348] Although the _ultimum senatus consultum_ had not been passed
against Ti. Gracchus, the condemnation of his adherents without appeal
(Vell. ii. 7; Val. Max. iv. 7, 1) was the exercise of the jurisdiction of
martial law. It was this jurisdiction which elicited the _plebiscitum_ of
C. Gracchus.

[1349] Cic. _pro Rab._ 4, 12 “C. Gracchus legem tulit ne de capite civium
Romanorum injussu vestro judicaretur.”

[1350] Schol. Ambros. p. 370 “Quia sententiam (wrongly for “legem”;
see Zumpt _Criminalrecht_ i. 2 p. 73) tulerat Gracchus ne quis in
civem Romanum capitalem sententiam diceret.” Cf. Cic. _pro Sest._ 28,
61 “Consule me, (Cato), cum esset designatus tribunus plebis, obtulit
in discrimen vitam suam: dixit eam sententiam, cujus invidiam capitis
periculo sibi praestandam videbat.” So Dio Cassius (xxxviii 14), in
speaking of the first bill of Clodius against Cicero, says ἔφερε μὲν γὰρ
καὶ ἐπὶ πᾶσαν τὴν βουλήν, ὅτι τοῖς τε ὑπάτοις τὴν φυλακὴν τῆς πόλεως ...
προσετετάχει.

[1351] Plut. _C. Gracch._ 4 τὸν δὲ (νόμον εἰσέφερε) εἴ τις ἄρχων ἄκριτον
ἐκκεκηρύχοι πολίτην, κατ’ αὐτοῦ διδόντα κρίσιν τῷ δήμῳ. δῆμος here may
mean either _populus_ or _plebs_; but Gracchus, as tribune, put his own
law into force against Popilius (Cic. _pro Domo_ 31, 82).

[1352] Cic. _in Cat._ iv. 5, 10 “At vero C. Caesar intelligit legem
Semproniam esse de civibus Romanis constitutam; qui autem rei publicae
sit hostis eum civem esse nullo modo posse.”

[1353] Cic. _in Pis._ 4, 9; _pro Sest._ 25, 55; Dio Cass. xxxviii. 13.

[1354] Cic. _ad Q. fr._ ii. 3, 5 (56 B.C.) “senatus consultum factum est
ut sodalitates decuriatique discederent lexque de iis ferretur ut, qui
non discessissent, ea poena quae est de vi tenerentur.” The _sodalitates_
were clubs of the type of the Greek ἑταιρεῖαι, the _decuriati_ probably
electioneering associations.

[1355] Cic. _ad Att._ i. 16, 12 (61 B.C.) “senatus consulta duo jam facta
sunt odiosa ... unum, ut apud magistratus inquiri liceret, alterum, cujus
domi divisores habitarent, adversus rem publicam.”

[1356] Liv. ix. 8-12; Plut. _Ti. Gracch._ 7; Cic. _de Off._ iii. 30, 109;
Sall. _Jug._ 39.

[1357] Sall. _Jug._ 39 “senatus ita, uti par fuerat, decernit suo atque
populi injussu nullum potuisse foedus fieri.”

[1358] Polyb. vi. 14 ὑπὲρ εἰρήνης οὗτος (ὁ δῆμος) βουλεύεται καὶ πολέμου.
καὶ μὴν περὶ συμμαχίας καὶ διαλύσεως καὶ συνθηκῶν οὑτός ἐστιν ὁ βεβαιῶν
ἕκαστα τούτων καὶ κύρια ποιῶν ἢ τοὐναντίον.

[1359] The Gaditani approach the Senate for the renovation of a treaty
made with a pro-magistrate in 78 B.C. Cicero questions its validity
(_pro Balbo_ 15, 34) on the ground that the people was not consulted.
The passage illustrates both the Senate’s exercise of this power and the
continuance of a controversy as to its right.

[1360] Hence the institution of the _Graecostasis_. Varro (_L.L._ v.
165) describes it as “sub dextra hujus (the Rostra) a comitio locus
substructus ubi nationum subsisterent legati, qui ad senatum essent
missi; is Graecostasis appellatus a parte ut multa.”

[1361] So the Numantian envoys in 36 B.C. are received ἔξω τοῦ τείχους
(Dio _fr._ 79). As a rule the appeal was made to the nearest _imperator_,
and his representations might accord such legati a reception within the
city. See Momms. _Staatsr._ iii. 2 p. 1150.

[1362] Liv. _Ep._ xlvi. “in commune lex lata est ne cui regi Romam venire
liceret.” Cf. Polyb. xxx. 17.

[1363] Cic. _ad Q. fr._ ii. 13, 3 “Appius interpretatur ... quod Gabinia
sanctum sit, etiam cogi ex Kal. Febr. usque ad Kal. Mart. legatis senatum
quotidie dare.”

[1364] Polyb. xxii. 24; Liv. xlv. 17.

[1365] For the attempt made by the _lex Sempronia_ to obviate this power
see p. 201.

[1366] Cic. _ad Fam._ v. 2, 3 (to Metellus Celer, proconsul of Cisalpine
Gaul, 62 B.C.) “Nihil dico de sortitione vestra: tantum te suspicari volo
nihil in ea re per collegam meum me insciente esse factum.” Cf. _ad Att._
i. 16, 8.

[1367] Liv. xlv. 13; Dittenberger n. 240. The Senate sometimes referred
questions respecting the internal affairs of these states to Roman
_patroni_, with whom they had entered into relations of clientship (Liv.
ix. 20; Cic. _pro Sulla_ 21, 60).

[1368] _lex de Termessibus_ ii. 6 “Nei quis magistratus ... meilites ...
introducito ... nisei senatus nominatim ... decreverit.”

[1369] Sall. _Jug._ 62 “Metellus propere cunctos senatorii ordinis ex
hibernis accersi jubet: eorum et aliorum, quos idoneos ducebat, consilium
habet.” Cf. c. 104 “Marius ... Sullam (the quaestor) ab Utica venire
jubet, item L. Bellienum praetorem, praeterea omnes undique senatorii
ordinis, quibuscum mandata Bocchi cognoscit.”

[1370] Cic. _ad Att._ ii. 16, 4 “Illud tamen, quod scribit (Q. Cicero,
governor of Asia) animadvertas velim, de portorio circumvectionis; ait se
de consilii sententia rem ad senatum rejecisse.”

[1371] Cic. _de Off._ ii. 22, 76 “tantum in aerarium pecuniae invexit
(Paulus) ut unius imperatoris praeda finem attulerit tributorum.” Cf.
Plut. _Paul._ 38.

[1372] Momms. _Staatsr._ iii. 2 pp. 1112-20.

[1373] Plut. _Ti. Gracch._ 14 οὐδὲν ἔφη τῇ συγκλήτῳ βουλεύεσθαι
προσήκειν, ἀλλὰ τῳ δήμῳ γνώμην αὐτὸς προθήσειν.

[1374] p. 229.

[1375] The Senate invalidated the _locationes_ of the censors of 184 B.C.
(Liv. xxxix. 44 “locationes cum senatus precibus et lacrimis publicanorum
victus induci et de integro locari jussisset”). A vain appeal was made
by the _publicani_ of Asia to remit their contracts in 60 B.C. (Cic. _ad
Att._ i. 17, 9; cf. ii. 1, 8).

[1376] The business of draining the Pomptine marshes is entrusted to
a consul (Liv. _Ep._ xlvi.), the building of an aqueduct to a praetor
(Frontin. _de Aquaed._ 7).

[1377] Cic. _ad Att._ iii. 24.

[1378] This was necessary when the supplies were destined for the
army. See Sall. _Jug._ 104 “(Rufus) qui quaestor stipendium in Africam
portaverat.” Compare the section on provincial government.

[1379] The phrase for opening this credit is _attribuere_. See Liv.
xliv. 16 “ad opera publica facienda cum eis (censoribus) dimidium ex
vectigalibus ejus anni (169 B.C.) attributum ex senatus consulto a
quaestoribus esset.”

[1380] p. 194.

[1381] Cic. _ad Fam._ i. 1 sq.

[1382] Cic. _ad Q. fr._ ii. 6, 4 and 5 (56 B.C.) “consul est
egregius Lentulus ... Dies comitiales exemit omnes. Nam etiam
Latinae instaurantur: nec tamen deerant supplicationes. Sic legibus
perniciosissimis obsistitur.”

[1383] In the later Republic these periods of thanksgiving had reached
the inordinate length of fifteen, twenty, and even fifty days (Caes.
_Bell. Gall._ ii. 35; iv. 38; Cic. _Phil._ xiv. 11, 29). At this period
the _supplicatio_ was considered the usual preliminary of a triumph; but
Cato explains to Cicero that this was not always the case (_ad Fam._
xv. 5, 2 “Quodsi triumphi praerogativam putas supplicationem et idcirco
casum potius quam te laudari mavis, neque supplicationem sequitur semper
triumphus,” etc.).

[1384] Cic. _pro Domo_ 49, 127 “video ... esse legem veterem tribuniciam
quae vetat injussu plebis aedes, terram, aram consecrari.” The _jussus
plebis_ probably implies that of the _populus_ as well. See Momms.
_Staatsr._ iii. 2 p. 1050.

[1385] The Senate alone is mentioned as decreeing the reception of the
_Magna Mater_ in 205 B.C., and as ordaining the erection of her temple
(Liv. xxix. 10 and 11; xxxvi. 36).

[1386] See p. 56.

[1387] Dionys. ii. 72; Liv. i. 32; cf. Plin. _H.N._ xxii. 2.

[1388] Polyb. iii. 25; Liv. i. 24. Yet the ceremonies they describe
are different. In that related by Polybius the stone has a passive
signification; the priest hurls it from him and prays, “May I only be
cast out, if I break my oath, as this stone is now.” In that described by
Livy, “the pig represents the perjurer, the flint-knife the instrument
of divine vengeance” (Strachan-Davidson’s Polybius, _Proleg._ viii.),
and Jupiter is here to strike the _people_ that fails in the compact.
Possibly the two forms of ritual were used in different kinds of
treaties; the first, perhaps, in commercial compacts, the second in
agreements that closed a war.

[1389] Liv. iv. 17; Middleton _Ancient Rome_ i. p. 245.

[1390] Liv. v. 36.

[1391] See p. 283.

[1392] Liv. xxii. 61.

[1393] Varro _L.L._ v. 3 “multa verba aliud nunc ostendunt, aliud ante
significabant, ut hostis: nam tum eo verbo dicebant peregrinum qui suis
legibus uteretur, nunc dicunt eum quem tum dicebant perduellem.” Cf. Cic.
_de Off._ i. 12, 37.

[1394] p. 284.

[1395] Polyb. iii. 22.

[1396] “Aeduos, fratres consanguineosque saepe numero a senatu
appellatos” (Caes. _B.G._ i. 33).

[1397] Cf. p. 284 for this rule and for the exception to it made in 166
B.C.

[1398] In the first treaty with Carthage two kinds of legal satisfaction
are given to Roman traders. In Libya and Sardinia the state guarantees
the debt; in the Sicilian cities under the Carthaginian protectorate
Romans and Carthaginians are on an equal footing (Polyb. iii. 22).

[1399] Hartmann (O. E.) _Der ordo judiciorum und die judicia
extraordinaria der Römer_ Thl. i. pp. 229 ff.

[1400] Festus p. 274 “Reciperatio est, ut ait Gallus Aelius, cum inter
populum et reges nationesque et civitates peregrinas lex convenit
quomodo per reciperatores reddantur res reciperenturque resque privatas
inter se persequantur.” See Keller _Civilprocess_ p. 36; Rudorff
_Rechtsgeschichte_ ii. p. 34.

[1401] p. 207.

[1402] In the treaty supposed to be the work of Spurius Cassius and to
date from 493 B.C. the following clause was found: τῶν τ’ ἰδιωτικῶν
συμβολαίων αἱ κρίσεις ἐν ἡμέραις γιγνέσθωσαν δέκα, παρ’ οἷς ἂν γένηται τὸ
συμβόλαιον (Dionys. vi. 95).

[1403] Dionys. iii. 34, 51.

[1404] ib. vi. 95; Festus p. 241.

[1405] Dionys. viii. 70, 74.

[1406] p. 295.

[1407] App. _B.C._ i. 23. Dionysius (viii. 72) speaks of the Latins and
Hernicans exercising voting privileges (ψηφοφορία) in Rome in the year
486 B.C. But it is impossible that they could have been enrolled in the
centuries, which was a Roman army list, and no assembly of the tribes had
yet received state recognition.

[1408] Dionys. viii. 69, 72, 74.

[1409] Livy, by attributing _civitas_ to Tusculum (vi. 26) and calling
the Tusculans _cives_ (vi. 36), seems to imply that they were full
citizens. In this case the city could not have been from the first
a _municipium_, the name it bears later (“municipium antiquissimum”
Cic. _pro Planc._ 8, 19). Festus, however (p. 127), includes Tusculum
amongst the states with _civitas sine suffragio_, i.e. amongst the true
_municipia_, and we know that Livy (x. 1) uses _civitas_ for _civitas
sine suffragio_. The Satricani are _cives Romani_ in 319 B.C. (Liv. ix.
16). Satricum had formerly belonged to the thirty Latin cities (Dionys.
v. 61).

[1410] Liv. viii. 14 “Ceteris Latinis populis (i.e. other than those with
whom special arrangements were made) conubia commerciaque et concilia
inter se ademerunt.”

[1411] Liv. ix. 43 “Hernicorum tribus populis, Aletrinati, Verulano,
Ferentinati, quia maluerunt quam civitatem, suae leges redditae;
conubiumque inter ipsos, quod aliquamdiu soli Hernicorum habuerunt,
permissum. Anagninis, quique arma Romanis intulerant, civitas sine
suffragii latione data: concilia conubiaque adempta, et magistratibus,
praeterquam sacrorum curatione, interdictum.”

[1412] p. 299.

[1413] Dionys. vii. 13; Plut. _Cor._ 13.

[1414] Hyginus p. 176 “cum signis et aquila et primis ordinibus ac
tribunis deducebantur”; Tac. _Ann._ xiv. 27 “non enim, ut olim, universae
legiones deducebantur cum tribunis et centurionibus et sui cujusque
ordinis militibus.”

[1415] Varro _L.L._ v. 143; Serv. ad _Aen._ v. 755.

[1416] Liv. xxvii. 38 (207 B.C.) “colonos etiam maritimos, qui
sacrosanctam vacationem dicebantur habere, dare milites cogebant”;
xxxvi. 3 (191 B.C.) “contentio orta cum colonis maritimis ... nam, cum
cogerentur in classem, tribunos plebei appellarunt.”

[1417] Cic. _pro Balbo_ 11, 28; _pro Caec._ 34, 100.

[1418] p. 203.

[1419] Festus p. 233 “Praefecturae eae appellabantur in Italia, in
quibus et jus dicebatur et nundinae agebantur; et erat quaedam earum res
publica, neque tamen magistratus suos habebant; in quas legibus praefecti
mittebantur quodannis, qui jus dicerent. Quarum genera fuerunt duo:
alterum, in quas solebant ire praefecti quattuor, [qui] viginti sex virum
numero populi suffragio creati erant ... alterum, in quas ibant quos
praetor urbanus quodannis in quaeque loca miserat legibus.” Amongst the
_praefecturae_ which he enumerates are the Roman colonies of Volturnum,
Liternum, Puteoli, and Saturnia.

[1420] Liv. viii. 14 “Campanis ... Fundanisque et Formianis ... civitas
sine suffragio data. Cumanos Suessulanosque ejusdem juris conditionisque,
cujus Capuam, esse placuit.” For Atella and Calatia see Festus pp. 131,
233.

[1421] Liv. x. 1.

[1422] ib. ix. 43, quoted p. 299.

[1423] Festus p. 131 “municipes erant qui ex aliis civitatibus Romam
venissent, quibus non licebat magistratum capere sed tantum muneris
partem, ut fuerunt Cumani, Acerrani, Atellani, qui et cives Romani
erant et in legione merebant, sed dignitates non capiebant”; cf. p. 127
“participes ... fuerunt omnium rerum ad munus fungendum una cum Romanis
civibus praeterquam de suffragio ferendo aut magistratu capiendo.” The
words “qui ex aliis civitatibus Romam venissent” in the first definition
do not describe the _municipes_ of historical times; they suggest a
possible origin for the institution. These rights were first conditioned
by domicile in Rome, but the condition was subsequently removed.

[1424] p. 235.

[1425] Festus p. 233, quoted p. 302.

[1426] Liv. viii. 14.

[1427] ib. xxiv. 19; xxvi. 6.

[1428] The language of Livy makes it doubtful whether he conceives the
_foedus_ to have continued after the _civitas_ had been conferred. They
are different stages of rights, but he may mean them to be cumulative.
In xxxi. 31 we read “cum ... ipsos (Campanos) foedere primum, deinde
conubio atque cognationibus, postremo civitate nobis conjunxissemus” (cf.
xxiii. 5). The _civitas_ here is probably the full citizenship conferred
on individual Capuans. They are spoken of as _socii_ in 216 B.C. (xxiii.
5), and though the word is sometimes loosely used, it harmonises in its
literal sense with the great constitutional privileges of the town.

[1429] As at Arpinum (Cic. _ad Fam._ xiii. 11, 3).

[1430] Festus p. 127 “quorum civitas universa in civitatem Romanam venit.”

[1431] It did not possess any magistracy for secular purposes (Liv. ix.
43 “magistratibus, praeterquam sacrorum curatione, interdictum”).

[1432] “in ditionem” (Liv. xxxvii. 45), “in potestatem” (xxxix. 54).

[1433] “in fidem” (ib. viii. 2).

[1434] Polyb. xx. 9, 12 παρὰ Ῥωμαίοις ἰσοδυναμεῖ τό τε εἰς τὴν πίστιν
αὑτὸν ἐγχειρίσαι καὶ τὸ τὴν ἐπιτροπὴν δοῦναι περὶ αὑτοῦ τῷ κρατοῦντι.

[1435] Gell. x. 3, 19.

[1436] _Dig._ 49, 15, 7, 1 “liber populus est is qui nullius alterius
populi potestati est subjectus.”

[1437] _Lex Antonia de Termessibus_ i. 8.

[1438] Plin. _Ep. ad Traj._ 92 (93).

[1439] Cic. _in Verr._ iii. 6, 13; cf. App. _B.C._ i. 102 (ἐπὶ συνθήκαις
ἔνορκοι).

[1440] _Dig._ 49, 15, 7, 1 “hoc adjicitur, ut intellegatur alterum
populum superiorem esse, non ut intellegatur alterum non esse liberum.”
Cf. Cic. _pro Balbo_ 16, 35 “Id habet hanc vim, ut sit ille in foedere
inferior.”

[1441] _Dig._ l.c. “is foederatus est item sive aequo foedere in
amicitiam venit sive foedere comprehensum est ut is populus alterius
populi majestatem comiter conservaret.”

[1442] _Lex Agraria_ 1. 21 “socii nominisve Latini, quibus ex formula
togatorum [milites in terra Italia inperare solent].”

[1443] Liv. xxii. 57; xxvii. 10 “milites ex formula paratos esse.”

[1444] The number of troops required was decreed every year by the Senate
(Liv. xli. 5 etc.), the consuls fixing the amount which each state was to
send in proportion to its fighting strength.

[1445] Cic. _pro Balbo_ 9, 24.

[1446] Cic. _pro Balbo_ 8, 21 “innumerabiles aliae leges de civili jure
sunt latae; quas Latini voluerunt, adsciverunt.”

[1447] Liv. xxxv. 7 (193 B.C.) “M. Sempronius tribunus plebis ... plebem
rogavit plebesque scivit ut cum sociis ac nomine Latino creditae pecuniae
jus idem quod cum civibus Romanis esset.” The enactment was produced
by the discovery that Roman creditors escaped the usury laws by using
Italians as their agents.

[1448] Macrob. _Sat._ iii. 17, 6.

[1449] Cic. _pro Balbo_ 8, 20 “foederatos populos fieri fundos oportere
... non magis est proprium foederatorum quam omnium liberorum.” For the
formula of acceptance (“fundi—i.e. auctores—facti sunt”) cf. Festus p. 89.

[1450] Cic. _pro Balbo_ 24, 54 “Latinis, id est foederatis.”

[1451] The distinction is expressed in the familiar _socii ac nominis
Latini_ (Liv. xli. 8), _socii et Latium_ (Sall. _Hist._ i. 17), and
perhaps in _socii Latini nominis_, if this last expression is to be
regarded as an asyndeton.

[1452] These twelve colonies, with the dates of their foundations,
are—Ariminum (268 B.C.), Beneventum (268), Firmum (264), Aesernia (263),
Brundisium (244), Spoletium (241), Cremona and Placentia (218), Copia
(193), Valentia (192), Bononia (189), Aquileia (181).

[1453] The later Latin colonists have of right no _conubium_ with Rome
(Ulp. _Reg._ v. 4 “Conubium habent cives Romani cum civibus Romanis; cum
Latinis autem et peregrinis ita si concessum sit”). The change may have
come with this last outburst of Latin colonisation in Italy; but it may
be as late as the extension of _latinitas_ to the provinces. For the
right of _commercium_ possessed by these colonies see Cic. _pro Caec._
35, 102 “jubet enim (Sulla Volaterranos) eodem jure esse quo fuerint
Ariminenses, quos quis ignorat duodecim coloniarum fuisse et a civibus
Romanis hereditates capere potuisse?”

[1454] Appian (_B.C._ i. 23), speaking of C. Gracchus’ proposal to
extend the citizenship, suggests a Latin right ψῆφον ἐν ταῖς Ῥωμαίων
χειροτονίαις φέρειν. Livy, with reference to the year 212 B.C., speaks of
the _sortitio_ as to the tribe or tribes in which the Latins should vote
(xxv. 3, in the trial of Postumius “sitella ... lata est ut sortirentur
ubi Latini suffragium ferrent”).

[1455] Liv. xli. 8 “Lex sociis ac nominis Latini, qui stirpem ex sese
domi relinquerent, dabat ut cives Romani fierent.”

[1456] This was the _latinitas_ given to Cisalpine Gaul in 89 B.C. by a
law of the consul Cn. Pompeius Strabo. Ascon. _in Pison._ p. 3 “Pompeius
enim non novis colonis eas (Transpadanas colonias) constituit, sed
veteribus incolis manentibus jus dedit Latii, ut possent habere jus
quod ceterae Latinae coloniae, id est ut gerendo magistratus civitatem
Romanam adipiscerentur.” Consequently when Caesar refounded Comum in
this district, in accordance with the _lex Vatinia_ (59 B.C.), the new
_civitas_ possessed this right (App. _B.C._ ii. 26).

[1457] _Lex Acilia_ l. 77; Cic. _pro Balbo_ 24, 54. The probable dates of
these laws are 122 and 111 B.C. respectively.

[1458] The allies before the social war reckon as their chief grievance
“per omnes annos atque omnia bella duplici numero se militum equitumque
fungi” (Vell. ii. 15).

[1459] Liv. xlii. 1 “(L. Postumius Albinus) ... literas Praeneste
misit, ut sibi magistratus obviam exiret, locum publice pararet, ubi
deverteretur, jumentaque, cum exiret inde, praesto essent. Ante hunc
consulem nemo unquam sociis in ulla re oneri aut sumptui fuit ... Injuria
consulis ... et silentium ... Praenestinorum jus, velut probato exemplo,
magistratibus fecit graviorum in dies talis generis imperiorum.”

[1460] C. Gracchus ap. Gell. x. 3, 3.

[1461] App. _B.C._ i. 21 and 34. According to Valerius Maximus (ix. 5, 1)
Flaccus proposed to give the _provocatio_ to those “qui civitatem mutare
noluissent.”

[1462] App. _B.C._ i. 23. Plutarch makes it a simple proposal of
citizenship for the allies (_C. Gracch._ 5). The geographical limits of
these proposed extensions are unknown. Velleius (ii. 6) remarks vaguely,
with respect to the Gracchan law, “dabat civitatem omnibus Italicis,
extendebat eam paene usque Alpis.”

[1463] App. _B.C._ i. 35; he promised to reintroduce the law περὶ τῆς
πολιτείας. Liv. _Ep._ lxxi. “socios et Italicos populos spe civitatis
Romanae sollicitavit”; Vell. ii. 14 “Tum conversus Drusi animus ... ad
dandam civitatem Italiae.”

[1464] Diod. xxxvii. 2.

[1465] Cf. the words of Pontius Telesinus, the Samnite leader in the
later struggle at the Colline gate (Vell. ii. 27), “eruendam delendamque
urbem ... nunquam de futuros raptores Italicae libertatis lupos, nisi
silva, in quam refugere solerent, esset excisa.” This, however, is an
expression of Samnite rather than of Italian feeling.

[1466] App. _B.C._ i. 49; Cic. _pro Balbo_ 8, 21.

[1467] Only one clause of this law is known—that by which the _civitas_
was granted to _incolae_ enrolled on the registers of federate
communities; they were to have the citizenship, if they made profession
to the praetor within sixty days (Cic. _pro Arch._ 4, 7). It is difficult
to believe that this cumbrous rule applied to the citizens of the towns.

[1468] The gradual nature of the incorporation is attested by the
expression of Velleius (ii. 16), “paulatim deinde recipiendo in
civitatem, qui arma aut non ceperant aut deposuerant maturius, vires
refectae sunt.”

[1469] Vell. ii. 20 “Itaque cum ita civitas Italiae data esset, ut in
octo tribus contribuerentur novi cives, ne potentia eorum et multitudo
veterum civium dignitatem frangeret plusque possent recepti in beneficium
quam auctores beneficii, Cinna in omnibus tribubus eos se distributurum
pollicitus est.” Appian (_B.C._ i. 49) seems to speak of the creation
of ten new tribes (δεκατεύοντες ἀπέφηναν ἑτέρας ἐν αἷς ἐχειροτόνουν
ἔσχατοι). The attempt to reconcile these accounts by supposing that they
refer to different classes of allies or are the respective products of
the two acts of legislation (Kubitschek _Imp. Rom. trib. descr._; Beloch
_der Italische Bund_) receives some epigraphic support, but rests either
on a correction of Appian’s text or on the assumption that his account
refers to ten of the _old_ tribes.

[1470] Liv. _Ep._ 84 “Novis civibus senatus consulto suffragium datum
est,” a careless phrase of the epitomiser or copyist for the distribution
through the tribes (Drakenborch). Sulla, in spite of his rescission of
the rights of certain rebel towns, did not disturb this arrangement.

[1471] Augustus formed the plan of giving to the senates (_decuriones_)
of the twenty-eight colonies which he founded in Italy the right of
voting for the magistrates at Rome. They were to send their votes under
seal (Suet. _Aug._ 46).

[1472] Liv. xxxviii. 36.

[1473] Cicero says that his grandfather, in or just before the consulship
of Scaurus (115 B.C.), “restitit M. Gratidio ... ferenti legem
tabellariam” (_de Leg._ iii. 16, 36).

[1474] _C.I.L._ i. p. 163.

[1475] A fragment of a constitution of Tarentum, dating apparently from
a time not long subsequent to the _lex Julia_ of 90 B.C., has been
preserved (_Fragmentum Tarentinum_ in _L’Année Épigraphique_, 1896, pp.
30, 31). Arpinum was undergoing reorganisation in 46 B.C. (Cic. _ad Fam._
xiii. 11, 3).

[1476] Cic. _in Verr._ v. 13, 34 “unum illud, quod ita fuit illustre
notumque omnibus, ut nemo tam rusticanus homo L. Lucullo et M. Cotta
consulibus (74 B.C.) Romam ex ullo municipio vadimonii causa venerit quin
sciret jura omnia praetoris urbani nutu ... Chelidonis ... gubernari.”

[1477] Ascon. _in Pison._ p. 8.

[1478] This is proved both by the attempt of Crassus, as censor in 65
B.C., to place the Transpadanes on the register of citizens (Dio Cass.
xxxvii. 9), and by Cicero’s comment on Marcellus’ action in scourging a
citizen of Novum Comum in 51 B.C. (Cic. _ad Att._ v. 11, 2 “Marcellus
foede in Comensi: etsi ille magistratum non gesserit, erat tamen
Transpadanus”).

[1479] Dio Cass. xli. 36.

[1480] Cic. _ad Att._ v. 2, 3 “eratque rumor de Transpadanis, eos jussos
IIIIviros creare. Quod si ita est, magnos motus timeo.”

[1481] App. _B.C._ v. 3 τήν τε γὰρ Κελτικὴν τὴν ἐντὸς Ἄλπεων ἐδόκει
Καίσαρος ἀξιοῦντος (i.e. Octavianus after Philippi) αὐτόνομον ἀφιέναι,
γνώμῃ τοῦ προτέρου Καίσαρος. Cf. iii. 30 and Dio Cass. xlviii. 12.

[1482] The name given to the district in the law _Gallia Cisalpeina_,
_Gallia cis Alpeis_ (cc. 22 and 23) suits both epochs equally well,
for Caesar had not made it a part of Italy. The fact that the _praetor
urbanus_ is the central authority in jurisdiction (cc. 21 and 22) suits
the Augustan epoch better.

[1483] _Lex Rubria_ cc. 21 and 22. For the _vadimonium_ cf. Cic. _in
Verr._ v. 13, 34 (quoted p. 313).

[1484] Generally _quattuorviri_, this board being usually divided into
two magistrates with higher jurisdiction (_duumviri juri dicundo_) and
two police officials (_duumviri aediles_). Sometimes we find _IIIIviri
dicundo_, perhaps a designation for the joint board, or, where the
magistrates with aedilician power alone are referred to, _IIIIviri
aediles_ or _aedilicia potestate_. See Wilmanns _Index_ pp. 620-622.

[1485] _Lex Julia mun._ l. 84. Cf. Cic. _in Pis._ 22, 51 “neque enim
regio ulla fuit, nec municipium neque praefectura aut colonia, ex qua non
ad me publice venerint gratulatum.”

[1486] Wilmanns _Index_ p. 618.

[1487] Sicily, Sardinia, Hither and Further Spain, Illyricum, Macedonia
and Achaea (separated by Caesar), Africa, Asia, Gallia Narbonensis,
Gallia Cisalpina, Bithynia, Cyrene with Crete, Cilicia and Syria.

[1488] The number is given by Pliny (_H.N._ iii. 88). In Cicero’s time
there was about this number. He speaks of the appointment of 130 censors
(_in Verr._ ii. 55, 137), two for each state (ib. 53, 133).

[1489] Cassiodorus _Chron._ ad A.U.C. 670 “Asiam in XLIIII. regiones
Sulla distribuit.”

[1490] Tac. _Ann._ iii. 44. This division may be the work of Augustus.

[1491] pp. 244, 283.

[1492] p. 245.

[1493] Except that ownership of the soil is not always, as in Italy,
the ground of exemption from taxation. On the free city of Termessus in
Pisidia “free possession” is alone conferred.

[1494] See the _lex Antonia de Termessibus_ (71 B.C.), especially the
clause which confers autonomy “so far as is consistent with this charter”
(i. l. 7 “eique legibus sueis ita utunto ... quod advorsus hanc legem non
fiat”).

[1495] Cic. _de Prov. Cons._ 3, 6. For the weakening of this respect for
αὐτονομία in the Ciceronian period and Caesar’s attempt to strengthen it
by law (probably the _lex Julia repetundarum_ of 59 B.C.) see Cic. _in
Verr._ iii 89, 207; _in Pis._ 16, 37 (“lege Caesaris justissima atque
optima populi liberi plane et vere erant liberi”).

[1496] Festus p. 218.

[1497] Cic. _in Verr._ ii. 13, 32; 15, 37; 16, 39; 24, 59.

[1498] Liv. xlv. 17 and 32.

[1499] Plin. _ad Traj._ 79 (83), 1.

[1500] As Cicero did in his government of Cilicia. See _ad Att._ vi. 2,
4 “omnes (civitates), suis legibus et judiciis usae, αὐτονομίαν adeptae,
revixerunt”; vi. 1, 15 “multaque sum secutus Scaevolae (governor of
Asia _circa_ 98 B.C.); in iis illud, in quo sibi libertatem censent
Graeci datam, ut Graeci inter se disceptent suis legibus ... Graeci vero
exsultant quod peregrinis judicibus utuntur.”

[1501] This we may gather from Cicero’s account of the proceedings of
the native magistrates in Cilicia (_ad Att._ vi. 2, 5 “Mira erant in
civitatibus ipsorum furta Graecorum, quae magistratus sui fecerant:
quaesivi ipse de iis, qui annis decem proximis magistratum gesserant;
aperte fatebantur”).

[1502] On the conquest of Epirus in 167 B.C., although all the Illyrians
were declared _liberi_, only some were pronounced “non solum liberi sed
etiam immunes” (Liv. xlv. 26).

[1503] Cf. Tac. _Hist._ iv. 74 “nam neque quies gentium sine armis neque
arma sine stipendiis neque stipendia sine tributis haberi queunt.”

[1504] Liv. xlv. 29.

[1505] Cic. _pro Leg. Man._ 6, 14 “ceterarum provinciarum vectigalia,
Quirites, tanta sunt ut iis ad ipsas provincias tutandas vix contenti
esse possimus, Asia vero tam opima est et fertile ut ... facile omnibus
terris antecellat.”

[1506] Gaius ii. 7 “in eo (provinciali) solo dominium populi Romani
est vel Caesaris, nos autem possessionem tantum vel usumfructum habere
videmur.” The theory is perhaps as old as the Gracchan period. C.
Gracchus’ association of the Asiatic taxes with the censor (cf. p. 231)
must have done a good deal to develop it. It is no wonder that this
theory led to the view that the provinces were “quasi quaedam praedia
populi Romani” (Cic. _in Verr._ ii. 3, 7).

[1507] These expressions are known only from the literature of the
Empire; it may be a mere accident that in Republican literature
_tributum_ seems never to be used of imperial taxation. The form
_stipendium_ is preferred. In Liv. xxiii. 32 we have the _tributum_ of
Sardinia mentioned with reference to Republican times. The _venditio
tributorum_ and the ὠναί of Cilicia (Cic. _ad Fam._ iii. 8, 5; _ad Att._
v. 16, 2) probably refer to local taxes improperly sold to _publicani_.

[1508] Liv. xliii. 2 “(Hispani) impetraverunt ne frumenti aestimationem
magistratus Romanus haberet.”

[1509] p. 319.

[1510] Cic. _in Verr._ iii. 33, 77.

[1511] ib. ii. 13, 32; 26, 63, etc.

[1512] ib. iii. 6, 12 “inter Siciliam ceterasque provincias ... in
agrorum vectigalium ratione hoc interest, quod ceteris aut impositum
vectigal est certum ... aut censoria locatio constituta est, ut Asiae
lege Sempronia.”

[1513] Cf. Cic. _ad Q. fr._ i. 1, 11, 33 “nomen autem publicani aspernari
non possunt, qui pendere ipsi vectigal sine publicano non potuerint, quod
iis aequaliter Sulla discripserat.” The reference is to Sulla’s temporary
abolition of the Gracchan principle of collection.

[1514] App. _B.C._ v. 4; Dio Cass. xlii. 6.

[1515] Nothing seems to be known about the conditions of sale of the
provincial _portoria_, e.g. whether those of Asia were put up at Rome
like the _decumae_.

[1516] Cic. _in Verr._ iii. cc. 81-96, 188-222.

[1517] Cic. _in Verr._ iii. 70, 163. Cf. Liv. xxxvi. 2 “idem L. Oppio de
alteris decumis exigendis in Sardinia imperatum.” Sometimes this enforced
sale of corn (_frumentum imperatum_) was required from free cities such
as Halaesa, Centuripae, and Messana in Sicily (Cic. _in Verr._ iii 73,
170; iv. 9, 20).

[1518] pp. 201, 202.

[1519] p. 201.

[1520] Sall. _Jug._ 27; Cic. _de Prov. Cons._ 2, 3; _pro Domo_ 9, 24.

[1521] Cic. _ad Fam._ i. 9, 25.

[1522] Cf. Cic. _de Prov. Cons._ 15, 87 (if the consul of 55 B.C.
succeeds Caesar on March 1, 54 B.C.) “Fuerit toto in consulatu sine
provincia, cui fuerit, antequam designatus est, decreta provincia?
Sortietur, an non? Nam et non sortiri absurdum est, et quod sortitus sis
non habere. Proficiscetur paludatus? Quo? Quo pervenire ante certam diem
non licebit. Januario, Februario provinciam non habebit. Kalendis ei
denique Martiis nascetur repente provincia.”

[1523] Cic. _ad Fam._ i. 9, 25; xii. 4, 2.

[1524] Cic. _in Verr._ i. 13, 34 “pecunia attributa, numerata est.
Profectus est quaestor in provinciam (Verres). Venit exspectatus in
Galliam ad exercitum consularem cum pecunia.”

[1525] _Rationes referre_ (Cic. _in Verr._ i. 13, 36). In accordance with
a _lex Julia_ (perhaps _repetundarum_) of Caesar’s, the accounts had
to be deposited at the _aerarium_, and two copies in two cities of the
province (Cic. _ad Fam._ v. 20, 2; Plut. _Cato Min._ 38).

[1526] p. 215.

[1527] Cic. _in Verr._ iii. 58, 134 “Quaestores, legatos ... multi missos
fecerunt et de provincia decedere jusserunt, quod illorum culpa se
minus commode audire arbitrarentur aut quod peccare ipsos aliqua in re
judicarent.”

[1528] The transition is marked in 169 B.C. (Liv. xliv. 18 “Senatus Cn.
Servilio consuli negotium dedit, ut is in Macedoniam, quos L. Aemilio
videretur, legaret”).

[1529] Cicero delegates even jurisdiction to one of his _comites_,
Volusius (_ad Att._ v. 21, 6). Other members of his retinue were his
son Marcus and his brother Quintus. These intimates of the governor
were spoken of as _contubernales_, _cohors_ _amicorum_, even as _cohors
praetoria_ (Cic. _ad Q. fr._ i. 1, 4, 12), although this title was
properly applied to the governor’s military guard.

[1530] p. 319, note 2.

[1531] Cic. _in Verr._ ii. 13, 32 “Siculi hoc jure sunt ut, quod civis
cum cive agat, domi certet suis legibus.”

[1532] ib. “quod Siculus cum Siculo non ejusdem civitatis (agat), ut de
eo praetor judices ex P. Rupilii decreto ... sortiatur.”

[1533] It is possible, however, that the principle here adopted was that
the _judex_ should be of the nationality of the defendant.

[1534] Cic. l.c. “quod privatus a populo petit aut populus a privato,
senatus ex aliqua civitate, qui judicet, datur, cum alternae civitates
rejectae sunt.”

[1535] ib. “quod civis Romanus a Siculo petit, Siculus judex datur, quod
Siculus a civi Romano, civis Romanus datur.”

[1536] ib. “ceterarum rerum selecti judices ex conventu civium Romanorum
proponi solent.”

[1537] Cic. _ad Att._ vi. 1, 15 “multaque sum secutus Scaevolae; in iis
illud, in quo sibi libertatem censent Graeci datam, ut Graeci inter
se disceptent suis legibus ... Graeci vero exsultant quod peregrinis
judicibus utuntur”; _ad Att._ vi. 2, 4 “omnes (civitates), suis legibus
et judiciis usae, αὐτονομίαν adeptae, revixerunt.”

[1538] “Edictum Siciliense” (Cic. _in Verr._ i. 45, 117).

[1539] Extreme changes might be made a ground of complaint by the
departing governor. Thus Cicero writes from Cilicia (50 B.C.) “Appius
enim ad me ex itinere bis terve ... literas miserat, quod quaedam a se
constituta rescinderem” (_ad Att._ vi. 1, 2).

[1540] Cic. _ad Fam._ iii. 8, 4.

[1541] Thus Cicero, governor of Cilicia, followed in some respects the
edict of Mucius Scaevola, the former governor of Asia (Cic. _ad Att._ vi.
1, 15).

[1542] Cic. _ad Att._ vi. 1, 15 “unum (genus) est provinciale, in quo
est de rationibus civitatum, de aere alieno, de usura, de syngraphis;
in eodem omnia de publicanis. Alterum, quod sine edicto satis commode
transigi non potest, de hereditatum possessionibus, de bonis possidendis
vendendis, magistris faciendis: quae ex edicto et postulari et fieri
solent. Tertium, de reliquo jure dicundo ἄγραφον reliqui. Dixi me de eo
genere mea decreta ad edicta urbana accommodaturum.”

[1543] Cic. _ad Fam._ iii. 8, 6.

[1544] Cic. _ad Att._ v. 21, 9.

[1545] Cic. _ad Att._ v. 20, 1; _ad Fam._ iii. 8, 4 and 5.

[1546] Suet. _Caes._ 7 “Quaestori (Caesari) ulterior Hispania obvenit;
ubi cum, mandatu praetoris, jure dicundo conventus circumiret, etc.”
Quaestorian jurisdiction was more frequent in Sicily than in other
provinces, on account of the presence of the second quaestor at Lilybaeum.

[1547] Cic. _ad Fam._ xii. 30, 7 “Illud non nimium probo quod scribis ...
te tuis etiam legatis lictores ademisse.”

[1548] Thus Verres quashes either a decision, or the execution of a
decision, given by his quaestor (Cic. _Div. in Caec._ 17, 56 “Lilybaeum
Verres venit postea: rem cognoscit: factum improbat: cogit quaestorem
suum pecuniam ... adnumerare et reddere”).

[1549] Possibly certain kinds of criminal jurisdiction were guaranteed to
cities by the _lex provinciae_. The Senate of Catina in Sicily tried a
slave (Cic. _in Verr._ iv. 45, 100).

[1550] Cic. _in Verr._ i. 33, 84 (of an _émeute_ at Lampsacus) “Non te
ad senatum causam deferre ... non eos homines, qui populum concitarant,
consulum literis evocandos curare oportuit?”

[1551] The council was not, however, legally necessary. Cf. Cic. _in
Verr._ ii. 30, 75 “Reus plorare ... ut cum consilio cognosceret.”

[1552] ib. ii. 29, 70; 30, 75.

[1553] ib. ii. 30, 75 “hominem innocentem de sententia scribae, medici
haruspicisque condemnat.”

[1554] For the threat of capital punishment on a Roman citizen see Cic.
_ad Q. fr._ i. 2, 5; for its apparent execution, Diod. xxxvii. 5, 2.

[1555] Cic. _in Verr._ v. 66, 170 “Facinus est vincire civem Romanum;
scelus, verberare: prope parricidium, necare: quid dicam in crucem
tollere?” Cf. _pro Rab._ 5, 17.

[1556] See p. 285.

[1557] Cic. _de Rep._ v. 6, 8 (_ad Att._ viii. 11, 1); v. 7, 9.

[1558] p. 224.

[1559] p. 314.

[1560] Caesar reduced the number of the recipients of the corn-dole from
320,000 to 150,000 (Suet. _Caes._ 41). In the Principate it stood at
about 200,000. See Marquardt _Staatsverw_. ii. p. 118.

[1561] p. 312.

[1562] p. 311.

[1563] It is true, however, that the Princeps was often made by an army,
not by _the_ army.

[1564] Dio Cass. xlii. 20. The dictatorship of 49 B.C. had been held only
for eleven days and was probably conferred merely _comitiorum habendorum
causa_. See p. 193.

[1565] Dio Cass. xliii. 14 and 33. It has been interpreted as a
dictatorship _rei publicae constituendae causa_.

[1566] _C.I.L._ i. p. 452.

[1567] Plut. _Caes._ 61; _Ant._ 12; Cic. _Phil._ ii. 34, 85.

[1568] Cf. Cic. _ad Fam._ xi. 27, 8 “si Caesar rex fuerit ... quod mihi
quidem videtur.”

[1569] Dio Cass. xliii. 44. Caesar probably used it after his name and
not as a _praenomen_, as stated by Suetonius (_Caes._ 76). It became with
him a kind of _cognomen_, and Augustus, who inherited it, changed its
position in the order of his names.

[1570] Dio Cass. xliii. 14.

[1571] Cic. _ad Fam._ xii. 1, 1 “nam, ut adhuc quidem actum est, non
regno, sed rege liberati videmur.”

[1572] _Monumentum Ancyranum_ i. 8-9 “Populus ... me ... trium virum rei
publicae constituendae creavit.”

[1573] App. _B.C._ v. 95.

[1574] _Mon. Anc._ vi. 13-15 “In consulatu sexto et septimo, bella ubi
civilia exstinxeram, per consensum universorum potitus rerum omnium,
rem publicam ex mea potestate in senatus populique Romani arbitrium
transtuli.”

[1575] Dio Cass. xlix. 15.

[1576] Tac. _Ann._ iii. 28 “sexto ... consulatu ... quae triumviratu
jusserat abolevit.”

[1577] Cf. Tac. _Ann._ i. 2 “posito triumviri nomine.”

[1578] _Mon. Anc._ l.c.

[1579] ib. vi. 16 (after the words on p. 338 note 4) “Quo pro merito meo
senatus consulto Aug. appellatus sum.”

[1580] Dio Cass. liii. 12. Augustus uses the expression _consulare
imperium_ for his position at this time (_Mon. Anc._ ii. 5, 8). It
resembled a proconsular command, but was held within the city. Compare
the position of Pompeius in 52 B.C.

[1581] Strabo p. 840 ἡ πατρὶς ἐπέτρεψεν αὐτῷ τὴν προστασίαν τῆς ἡγεμονίας
καὶ πολέμου καὶ εἰρήνης κατέστη κύριος διὰ βίου.

[1582] In the Calendar we find for January 13 (the day of the settlement)
“quod rem publicam P. R. restituit” (_C.I.L._ i. p. 312). Cf. Ovid
_Fasti_ i. l. 589 “redditaque est omnis populo provincia nostro”; Vell.
ii. 89 “prisca illa et antiqua rei publicae forma revocata.”

[1583] Dio Cass. lii. 1 ἐκ δὲ τούτου μοναρχεῖσθαι αὖθις ἀρκιβῶς ἤρξαντο.
In the _Cenotaphia Pisana_ (A.D. 2) ii. l. 12 Augustus is called “custos
imperi Romani totiusque orbis terrarum praeses” (Wilmanns n. 883).

[1584] Dio Cass. liii. 32.

[1585] Dio Cass. liii. 32.

[1586] Dio Cass. liv. 10.

[1587] ib. liii 32.

[1588] _C.I.L._ vi. n. 930. It describes itself as a law and is generally
known as the _lex de imperio Vespasiani_. But its wording bears more
analogy to that of a _senatus consultum_. See Mommsen _Staatsrecht_ ii.
p. 878.

[1589] _Vitae Macrini_ 7; _Alexandri_ 8; _Probi_ 12; _Maximi et Balbini_
8.

[1590] “Dato imperio” (_Vita Veri_ 4), “accepit imperium” (_Vita
Alexandri_ 1). It is possible, however, that these are references
merely to the reception of the title _imperator_; cf. _Vita Juliani_ 3
“imperator est appellatus”; _Vita Probi_ 12 “nomen imperatorium.” For
the view that there was always a _lex de imperio_ see Karlowa _Römische
Rechtsgeschichte_ i. pp. 493 ff.

[1591] Gaius _Inst._ i. 5 (on the imperial _constitutio_) “nec unquam
dubitatum est quin id legis vicem obtineat, cum ipse imperator per legem
imperium accipiat”; Ulpian in _Dig._ 1, 4, 1 “Quod principi placuit,
legis habet vigorem: utpote cum lege regia, quae de imperio ejus lata
est, populus ei et in eum omne suum imperium et potestatem conferat.” The
view that these passages are interpolations is possible but hazardous.
A genuine expression of belief in the _lex regia_ appears in Justinian
(_Cod._ i. 17, l. 7).

[1592] For the monopoly of the _sacramentum_ possessed by the Princeps
compare the charge brought against Agrippina after her death (59 A.D.),
“Adiciebat crimina ... quod consortium imperii juraturasque in feminae
verba praetorias cohortes ... speravisset” (Tac. _Ann._ xiv. 11).

[1593] “Romae ruere in servitium consules, patres, eques” (Tac. _Ann._ i.
7).

[1594] Tac. _Hist._ i. 55 “Inferioris tamen Germaniae legiones sollemni
Kalendarum Januariarum sacramento pro Galba adactae.” For the renewal of
the oath on the anniversary of accession see Plin. _ad Traj._ 52.

[1595] Cf. Tac. _Hist._ iii. 58 (Vitellius) “vocari tribus jubet, dantes
nomina sacramento adigit.”

[1596] _Lex de imp. Vesp._ 1 “foedusve cum quibus volet facere liceat.”
These powers are summed up by Dio Cassius liii. 17 (as imperators
the Emperors have the right) καταλόγους τε ποιεῖσθαι ... πολέμους τε
ἀναιρεῖσθαι καὶ εἰρήνην σπένδεσθαι.

[1597] p. 283.

[1598] Dio Cass. lx. 23 (after Claudius’ conquest of Britain) ἐψηφίσθη
τὰς συμβάσεις ἁπάσας, ὅσας ἂν ὁ Κλαύδιος ἢ καὶ οἱ ἀντιστράτηγοι αὐτοῦ
πρός τινας ποιήσωνται, κυρίας, ὡς καὶ πρὸς τὴν βουλὴν τόν τε δῆμον εἶναι.

[1599] _Lex de imp. Vesp._ 15 “utique ei fines pomerii proferre promovere
cum ex republica censebit esse, liceat ita, uti licuit Ti. Claudio
Caesari Aug(usto) Germanico.” Cf. Tac. _Ann._ xii. 23.

[1600] p. 240.

[1601] Gaius _Inst._ i. 96.

[1602] Gell. xvi. 13, 5.

[1603] Gaius _Inst._ iii. 72 and 73.

[1604] This was effected, either indirectly by the gift of the gold ring
(_jus aureorum anulorum_), or directly by the fiction of a _natalibus
restitutio_. See _Dig._ 2, 4, 10, 3; 40, 11, 2; Plin. _ad Traj._ 72 and
73.

[1605] Dio Cass. xlix. 15; li. 19; liii. 32. See pp. 338, 340.

[1606] Tac. _Ann._ iii. 56 “id summi fastigii vocabulum Augustas
repperit, ne regis aut dictatoris nomen adsumeret ac tamen appellatione
aliqua cetera imperia praemineret.”

[1607] Dio Cass. xlix. 15 καὶ τὸ μήτε ἔργῳ μήτε λόγῳ τι ὑβρίζεσθαι· εἰ δὲ
μή, τοῖς αὐτοῖς τὸν τοιοῦτό τι δράσαντα ἐνέχεσθαι οἶσπερ ἐπὶ τῷ δημάρχῳ
ἐτέτακτο.

[1608] The _additional_ rights granted to the Emperor in connexion with
the Senate (see p. 348) assume a right of intercourse with it.

[1609] Dio Cass. liii. 17 (the tribunician power) δίδωσί σφισι τά τε
γιγνόμενα ὑφ’ ἑτέρου τινός, ἂν μὴ συνεπαινῶσι, παύειν.

[1610] Tac. _Ann._ iii. 70 “recipi Caesar (Tiberius) inter reos vetuit
... perstititque intercedere”; xiv. 48 “credebaturque haud perinde
exitium Antistio quam imperatori gloriam quaeri ut condemnatum a senatu
intercessione tribunicia morti eximeret” (Nero).

[1611] ἀμύνειν (Dio Cass. li. 19); cf. Tac. _Ann._ i. 2 (of Augustus) “ad
tuendam plebem tribunicio jure contentum.”

[1612] p. 340.

[1613] The statement of Suetonius (_Aug._ 27 “Recepit et morum legumque
regimen aeque perpetuum”) is not borne out by the _Monumentum Ancyranum_
or by Augustus’ titular designations.

[1614] Suet. _Aug._ 35; _Mon. Anc._ ii. 5 “consulari cum imperio lustrum
solus feci.”

[1615] Dio Cass. lxvii. 4 τιμητὴς δὲ διὰ βίου πρῶτος δὴ καὶ μόνος καὶ
ἰδιωτῶν καὶ αὐτοκρατόρων ἐχειροτονήθη.

[1616] ib. liii. 17 καὶ τοὺς μὲν καταλέγουσι καὶ ἐς τὴν ἱππάδα καὶ ἐς τὸ
βουλευτικόν, τοὺς δὲ καὶ ἀπαλείφουσιν, ὅπῶς ἂν αὐτοῖς δόξῃ.

[1617] Tac. _Ann._ xi. 25 “Isdem diebus in numerum patriciorum adscivit
Caesar (Claudius as censor) vetustissimum quemque e senatu aut quibus
clari parentes fuerant ... exhaustis etiam quas (familias) dictator
Caesar lege Cassia et princeps Augustus lege Saenia sublegere.” Cf. Suet.
_Otho_ 1; and for Vespasian’s censorship _Vita Marci_ 1 “Annius Verus ...
adscitus in patricios ... a Vespasiano et Tito censoribus.”

[1618] p. 14.

[1619] _Vita Juliani_ 3 “in patricias familias relatus”; _Macrini_ 7
“senatus ... Macrinum ... in patricios allegit novum hominem.” Cf. Dio
Cass. lxxviii 17.

[1620] _Lex de imp. Vesp._ l. 3 “utique ei senatum habere, relationem
facere, remittere, senatus consulta per relationem discessionemque facere
liceat.” In l. 7 we find the right of the Princeps to summon the Senate
_ex mandatu_.

[1621] _Jus tertiae relationis_ (_Vita Probi_ 12), _quartae_ (_Vita
Pertinacis_ 5), _quintae_ (_Vita Marci_ 6, _Alexandri_ 1).

[1622] Tac. _Ann._ i. 14 “candidatos praeturae duodecim nominavit
(Tiberius), numerum ab Augusto traditum, et hortante senatu ut augeret
jure jurando obstrinxit se non excessurum.”

[1623] This practical effect seems sometimes to have been obviated by
the Emperor’s selecting his candidates for nomination by lot (Dio Cass.
lviii. 20). See Mr. Strachan-Davidson in Smith _Dict. of Antiq._ ii. p.
237.

[1624] _Lex de imp._ Vesp. l. 10 “utique quos magistratum potestatem
imperium curationemve cujus rei petentes senatui populoque Romano
commendaverit, quibusque suffragationem suam dederit promiserit, eorum
comitis quibusque extra ordinem ratio habeatur.” Cf. Tac. _Ann._ i. 15
“sine repulsa et ambitu designandos.” For the precedent set by Caesar’s
use of it see Suet. _Caes._ 41.

[1625] Tac. _Ann._ i. 15 “moderante Tiberio ne plures quam quattuor
candidatos commendaret, sine repulsa et ambitu designandos.”

[1626] e.g. _praetor_, _tribunus_, _quaestor candidatus_ (Wilmanns
_Index_ pp. 551 ff.).

[1627] Tac. _Ann._ i. 81 “plerumque eos tantum apud se professos
disseruit, quorum nomina consulibus edidisset: posse et alios profiteri,
si gratiae aut meritis confiderent.” It may have been a person so
appointed who inaccurately describes himself as “per commendation(em) Ti.
Caesaris Augusti ab senatu co(n)s(ul) dest(inatus)” (_Inscr. Reg. Neap._
n. 4762; _C.I.L._, ix. n. 2342).

[1628] _C.I.L._ xiv. n. 3608 “hunc ... Caesar Aug. Vespasianus iterum
cos. fecit”; Plin. _Paneg._ 77 (of Trajan) “praestare consulibus ipsum
qui consules facit.” Mommsen (_Staatsr._ ii. p. 925) thinks that the
change came with Nero.

[1629] _Lex de imp. Vesp._ l. 22 “utique quibus legibus plebeive scitis
scriptum fuit, ne divus Aug(ustus), Tiberiusve Julius Caesar Aug(ustus),
Tiberiusque Claudius Caesar Aug(ustus) Germanicus tenerentur, iis legibus
plebisque scitis imp(erator) Caesar Vespasianus solutus sit.”

[1630] Tac. _Hist._ i. 15 (Galba to Piso on the latter’s adoption) “si te
privatus lege curiata apud pontifices, ut moris est, adoptarem.”

[1631] Paulus in _Dig._ 40, 1, 14, 1.

[1632] Ulpian in _Dig._ 1, 3, 31.

[1633] Dio Cass. liii. 17 ἐν πάσαις ταῖς ἱερωσύναις ἱερῶσθαι.

[1634] _Lex de imp. Vesp._ l. 17 “utique quaecunque ex usu rei publicae
majestateque divinarum ... rerum esse censebit, ei agere fecere jus
potestasque sit.”

[1635] p. 254.

[1636] Mommsen _Staatsr._ ii. p. 31.

[1637] Dio Cass, liii. 17. In the decrees to Maximus and Balbinus the
_pontificatus maximus_ is mentioned (_Vita_ 8), and it is possible that
it was held by both these emperors conjointly.

[1638] Zosimus iv. 36.

[1639] Suet. _Dom._ 8 “Incesta Vestalium virginum ... varie ac severe
coercuit: priora capitali supplicio; posteriora, more veteri.”

[1640] Ulpian in _Dig._ 11, 7, 8.

[1641] Dio Cass. liii. 17; Tac. _Hist._ i. 77 “Otho pontificatus
auguratusque honoratis jam senibus cumulum dignitatis addidit”; Plin. _ad
Traj._ 13 (8) “rogo dignitati, ad quam me provexit indulgentia tua, vel
auguratum vel septemviratum, quia vacent, adicere digneris.”

[1642] Cic. _ad Att._ viii. 9, 4 “nihil malle Caesarem quam principe
Pompeio sine metu vivere”; _ad Fam._ vi. 6, 5 “esset hic quidem (Caesar)
clarus in toga et princeps.” Cf. Vell. ii. 124 “una tamen veluti luctatio
civitatis fuit, pugnantis cum (Tiberio) Caesare senatus populique Romani,
ut stationi paternae succederet, illius, ut potius aequalem civem quam
eminentem liceret agere principem.”

[1643] Tac. _Ann._ iii. 53 (Tiberius says) “non aedilis aut praetoris
aut consulis partes sustineo, majus aliquid et excelsius a principe
postulatur.”

[1644] Dio Cass. lvii. 8 (see note 5); Ovid _Fasti_ ii. 142 “Tu (Romule)
domini nomen, principis ille (Augustus) tenet.”

[1645] Suet. _Aug._ 53.

[1646] Dio Cass. lvii. 8 δεσπότης μὲν τῶν δούλων, αὐτοκράτωρ δὲ τῶν
στρατιωτῶν, τῶν δὲ δὴ λοιπῶν πρόκριτός εἰμι. Cf. Tac. _Ann._ ii. 87.

[1647] See Mommsen _Staatsr._ ii. p. 760.

[1648] Caesar had been _imperator_ since his first salutation in Gaul;
but the right to use the title as a _nomen_ seems first to have been
granted him in 45 B.C. after the victory of Munda (Dio Cass. xliii. 44
ἐκείνῳ τότε πρώτῳ τε καὶ πρῶτον, ὥσπερ τι κύριον, προσέθεσαν). It does
not seem, however, that he employed it as a _praenomen_, as is stated by
Suetonius (_Caes._ 76). Cf. p. 337.

[1649] Dio Cass. l.c.

[1650] p. 156.

[1651] Dio Cass. liii. 16 Αὔγουστος ὡς καὶ πλεῖόν τι ἤ κατὰ ἀνθρώπους ὤν
ἐπεκλήθη.

[1652] Karlowa _Rechtsgeschichte_ i. p. 508.

[1653] _Vita L. Veri_, 2.

[1654] Mommsen _Staatsr._ ii. p. 1140.

[1655] App. _B.C._ ii. 7 οὐδὲ γὰρ τοίσδε καίπερ οὖσι βασιλεῦσιν εὐθὺς ἀπ’
ἀρχῆς ἅμα ταῖς ἄλλαις ἐπωνυμίαις, ἀλλὰ σὺν χρόνῳ μόλις ἤδε ὡς ἐντελὴς ἐπὶ
μεγίστοις δὴ μαρτυρία ψηφίζεται: _Vita Hadriani_ 6 “patris patriae nomen
delatum sibi statim, et iterum postea, distulit quod hoc nomen Augustus
sero meruisset.” It was declined altogether by Tiberius (Suet. _Tib._ 26
and 67) and was not borne by the transitory emperors Galba, Otho, and
Vitellius. See Mommsen _Staatsr._ ii. p. 780.

[1656] See Mommsen _Staatsr._ ii. pp. 782-786. As typical instances we
may cite an inscription of Vespasian giving the _praenomen imperatoris_:
“Imp. Caesar. Vespasianus Aug. pontif. max. tribunic. potest, vi. imp.
xiiii. p.p., cos. vi. desig. vii. censor” (Wilmanns n. 855), and one of
Caracalla showing the title _proconsul_: “M. Aurellius Antoninus Pius
Felix Augustus ... pontif. max., trib. pot. xviii. imp. iiii. cos. iiii.
p.p. procos.” (ib. n. 2868). _Pater patriae_ appears sometimes before,
sometimes after _consul_.

[1657] Dio Cass. xlix. 15.

[1658] On Gordian’s revolt in Africa the laurelled _fasces_ were
immediately assumed (Herodian vii. 6; _Vita Maximini_ 14).

[1659] Originally twelve, later twenty-four (Dio Cass. lxvii. 4).

[1660] Dio Cass. li. 19.

[1661] ib.

[1662] For the reverence to the statue of the deified Emperor see Suet.
_Tib._ 58 “genus calumniae (sc. majestatis) eo processit ut haec quoque
capitalia essent: circa Augusti simulacrum servum cecidisse, vestimenta
mutasse, nummo vel annulo effigiem impressam latrinae aut lupanari
intulisse.” For the right of _asylum_ attaching to the living Emperor’s
image see Tac. _Ann._ iii. 36; Gaius _Inst._ i. 53.

[1663] Tertull. _Apol._ 28 “citius ... apud vos per omnes deos quam
per unum genium Caesaris pejeratur.” In the official oath taken by the
magistrates of Salpensa and Malaca the deified Caesars and the genius
of the living Caesar come between Jupiter and the _di Penates_. (Bruns
_Fontes_.)

[1664] On Seneca’s question with reference to Agrippina (59 A.D.) “an
militi imperanda caedes esset,” the answer is “praetorianos toti Caesarum
domui obstrictos ... nihil ... atrox ausuros.” Caligula specifically
included the names of his sisters in the _sacramentum_ (Dio Cass. lix. 9)

[1665] Mommsen _Staatsr._ ii. p. 831.

[1666] _Mon. Ancyr._ iii. 5; Dio Cass. lix. 8.

[1667] The name _Augusta_ as assumed by Victorina in Gaul (A.D. 268)
certainly meant that she claimed to be Empress.

[1668] Plin. _Paneg._ 84.

[1669] Tac. _Ann._ iii. 49-51.

[1670] Gibbon ch. iii.

[1671] Seneca _de Ben._ vi. 34, 2 “Apud nos primi omnium Gracchus et mox
Livius Drusus instituerunt segregare turbam suam et alios in secretum
recipere, alios cum pluribus, alios universos. Habuerunt itaque isti
amicos primos, habuerunt secundos, numquam veros.”

[1672] Seneca _de Clem._ i. 10 “cohortem primae admissionis”; _Vita
Alex._ 20 “moderationis tantae fuit ... ut amicos non solum primi aut
secundi loci sed etiam inferioris aegrotantes viseret.”

[1673] Hence such titles as “comes divi Hadriani in oriente,” “comes Imp.
Antonini Aug. et divi Veri bello Germanico” (Wilmanns nn. 1184, 637).

[1674] p. 147.

[1675] _Interregnum_ might be used metaphorically of the interval between
the death of one Princeps and the accession of another. See _Vita Taciti_
1.

[1676] Tac. _Ann._ i. 12 “dixit forte Tiberius se ut non toti rei
publicae parem, ita quaecumque pars sibi mandaretur, ejus tutelam
suscepturum.”

[1677] p. 343.

[1678] Henzen _Act. Fr. Arv._ p. 64. Hadrian, after his salutation by the
soldiers, wrote to the Senate that he had been _praepropere_ addressed as
_imperator_ (_Vita Hadriani_ 6). Pertinax, after his appointment had been
accepted by the praetorian guards, laid down his power in the Senate and
was elected again (Dio Cass. lxxiii. 1).

[1679] Suet. _Vesp._ 6.

[1680] _Vita Taciti_ 2 (after the murder of Aurelian) “exercitus, qui
creare imperatorem raptim solebat, ad senatum literas misit ... petens
ut ex ordine suo principem legerent. Verum senatus, sciens lectos a se
principes militibus non placere, rem ad milites rettulit, dumque id
saepius fit, sextus peractus est mensis.”

[1681] In 13 B.C. Agrippa received _tribunicia potestas_ for five years
(Dio Cass. liv. 12). For Tiberius’ claims see Tac. _Ann._ i 3 “filius,
collega imperii, consors tribuniciae potestatis adsumitur.”

[1682] Tac. _Ann._ i 14 (Tiberius on his accession, A.D. 14) “Germanico
Caesari proconsulare imperium petivit”; iii 56 (A.D. 22) “Tiberius mittit
literas ad senatum quis potestatem tribuniciam Druso petebat.” For Trajan
see Plin. _Paneg._ 8 “ante pulvinar Jovis optimi maximi adoptio peracta
est ... simul filius, simul Caesar, mox imperator et consors tribuniciae
potestatis”; _Vita Pii_ 4 “adoptatus est (Pius) ... factusque est patri
et in imperio proconsulari et in tribunicia potestate collega”; _Vita
Marci_ 6 (Marcus before he came to the throne) “tribunicia potestate
donatus est atque imperio extra urbem proconsulari.”

[1683] Mommsen _Staatsr._ ii. p. 1158.

[1684] Vell. ii. 121 “cum ... senatus populusque Romanus postulante patre
ejus, ut aequum ei jus in omnibus provinciis exercitibusque esset quam
erat ipsi, decreto complexus esset.”

[1685] Agrippa twice declined a triumph offered him by Augustus (Dio
Cass. liv. 11 and 24), and the Senate conferred the title of _Imperator_
only on the proposal of the Princeps (Tac. _Ann._ i. 58, Germanicus
in A.D. 15, “exercitum reduxit nomenque imperatoris auctore Tiberio
accepit”).

[1686] Mommsen _Staatsr._ ii. p. 1154.

[1687] Suet. _Gaius_ 24 “(Gaius Drusillam) heredem quoque bonorum atque
imperii aeger instituit.”

[1688] ib. 14. Compare Domitian’s contention after the death of Vespasian
“relictum se participem imperii sed fraudem testamento adhibitam” (Suet.
_Dom._ 2).

[1689] Tac. _Hist._ i. 15 (see p. 350); i. 17 (of the adoption of Piso by
Galba) “consultatum inde pro rostris an in senatu an in castris adoptio
nuncuparetur”; Suet. _Galba_ 17 “(Galba Pisonem) perduxit in castra ac
pro contione adoptavit.” Nerva proclaims on the Capitol his adoption of
Trajan (Dio Cass. lxviii. 8).

[1690] See p. 360, n. 2.

[1691] p. 354.

[1692] Plut. _Galba_ 7 (a messenger announces that) ὁ δῆμος καὶ ἠ
σύγκλητος αὐτοκράτορα τὸν Γάλβαν ἀναγορεύσειεν: Herodian ii. 12 (the
Senate) ψηφίζεται τὸν μὲν (Ἰουλιανὸν) ἀναιρεθῆναι, ἀποδειχθῆναι δὲ μόνον
αὐτοκράτορα τὸν Σεουῆρον: _Vita_ _Maximini_ 15 “Ubi haec gesta sunt (i.e.
after the recognition of the Gordians) senatus magis timens Maximinum
aperte ac libere hostes appellat Maximinum et ejus filium.”

[1693] This was the case with Caligula, although the _damnatio_ was
incomplete. See Suet. _Claud._ 11 “Gaii quoque etsi acta omnia rescidit,
diem tamen necis, quamvis exordium principatus sui, vetuit inter festos
referri.”

[1694] The deposed Nero was thus treated as a traitor (Suet. _Ner._ 49
“codicillos praeripuit legitque se hostem a senatu judicatum et quaeri ut
puniatur more majorum”).

[1695] The _acta_ of Tiberius were not sworn to (Dio Cass. lix. 9),
although his memory was not condemned. His reign appears amongst the
legitimate precedents for the authority of Vespasian in the _lex de
imperio_, those of Gaius, Nero, Galba, Otho, and Vitellius being omitted.

[1696] Dio Cass. lvii. 8 (Tiberius) ἐπὶ ταῖς τοῦ Αὐγούστου πράξεσι τούς
τε ἄλλους πάντας ὥρκου καὶ αὐτὸς ὤμνυε.

[1697] Tiberius characteristically enough would not have his _acta_ sworn
to during his lifetime (Tac. _Ann._ i. 72; Suet. _Tib._ 67), and some
thought the motive was “ne mox majore dedecore impar tantis honoribus
inveniretur” (Suet. l.c.). His objection to his own deification was
interpreted by some as a sign “degeneris animi” (Tac. _Ann._ iv. 38).

[1698] Dio Cass. iii. 20. Here it is made the age for entrance into
the Senate; but the completion of the twenty-fifth year is meant. Cf.
Quintil. _Inst. Or._ xii. 6, 1 “quaestoria aetas.”

[1699] Dio Cass. l.c. Dispensations from these rules might be given by
the Senate, in accordance with the _jus liberorum_ (“ut singuli anni
per singulos liberos remittantur” _Dig._ 4, 4, 2), or to members of the
imperial house (Tac. _Ann._ iii. 29 “Per idem tempus (A.D. 20) Neronem e
liberis Germanici jam ingressum juventam (Tiberius) commendavit patribus,
utque munere capessendi vigintiviratus solveretur et quinquennio maturius
quam per leges quaesturam peteret ... postulavit”).

[1700] Dio Cass. liv. 26; cf. Tac. _Ann._ iii. 29, quoted in the last
note.

[1701] In inscriptions of the early Principate the vigintivirate is
sometimes not found in the list of _honores_. But it is more probable
that it is omitted than that it was an alternative to the military
tribunate. See Mommsen _Staatsr._ i. p. 544 n. 4.

[1702] Dio Cass. lii. 20.

[1703] Its use by Macrinus in the third century excited opposition (Dio
Cass. lxxviii. 13). See Mommsen _Staatsr._ ii. p. 942.

[1704] Dio Cass. liv. 19 (of Tiberius in 16 B.C.) ἐστρατήγησε γάρ,
καίπερ τὰς στρατηγικὰς τιμὰς ἔχων (Tiberius had received the _ornamenta
praetoria_ in 19 B.C., see c. 10); c. 32 Drusus ἀγορανόμος ... καίπερ τὰς
στρατηγικὰς τιμὰς ἔχων ἀπεδείχθη: cf. c. 22.

[1705] Suet. _Aug._ 35; Dio Cass. lviii. 12.

[1706] Mommsen _Staatsr._ i. p. 458.

[1707] The consular _insignia_ were granted to Nymphidius and to
Crispinus under Nero (Tac. _Ann._ xv. 72; xvi. 17); the praetorian
_insignia_ to Sejanus and to Macro under Tiberius (Dio Cass. lvii. 19;
lviii. 12).

[1708] Quaestorian _insignia_ were granted to Laco under Tiberius (Dio
Cass. lviii. 12).

[1709] Tac. _Ann._ xii. 21 “consularia insignia Ciloni (procurator of
Pontus) ... decernuntur”; Suet. _Claud._ 24 “ornamenta consularia etiam
procuratoribus ducenariis indulsit.”

[1710] As the praetorian _insignia_ to Pallas, the quaestorian to
Narcissus (Tac. _Ann._ xii. 53; xi. 38). Cf. Suet. _Claud._ 28.

[1711] Suet. _Aug._ 35 (Augustus) “quosdam ad excusandi se verecundiam
compulit: servavitque etiam excusatis insigne vestis et spectandi in
orchestra epulandique publice jus.”

[1712] p. 156.

[1713] In an exceptional case, such as Junius Blaesus’ command in Africa,
the proconsul might be saluted _imperator_ on the permission of the
Princeps (Tac. _Ann._ iii. 74), and the first condition of a triumph be
fulfilled. But this incident, dating from A.D. 22, was the last of its
kind on record.

[1714] Suet. _Aug._ 38 “super triginta ducibus justos triumphos et
aliquanto pluribus triumphalia ornamenta decernenda curavit”; Wilmanns n.
1145 l. 19 “senatus ... triumphalibus ornamentis honoravit auctore imp.
Caesare Augusto Vespasiano”; _Index_ p. 609.

[1715] Dio Cass. lix. 9. The obligation to swear _in acta Caesaris_ had,
with reference to the acts of the first Caesar, begun in 45 B.C. (App.
_B.C._ ii. 106), and had been renewed during the triumvirate (Dio Cass.
xlvii. 18), the formula running _se nihil contra acta Caesaris facturum_.
For the obligation as continued in the Principate cf. p. 363.

[1716] Herodian (ii. 12), with reference to the downfall of Didius
Julianus, speaks of the consuls οἷ τὰ τῆς Ῥώμης διοικεῖν εἰώθασιν ὁπηνίκα
ἂν τὰ τῆς βασιλείας μετέωρα ᾗ.

[1717] Plut. _Galba 8._

[1718] Tac. _Hist._ iii. 68.

[1719] Plin. _Paneg._ 77 “comitia consulum obibat ipse (Trajanus);
tantum ex renuntiatione eorum voluptatis quantum prius ex destinatione
capiebat.... Adibat aliquis ut principem; respondebat se consulem esse.”

[1720] On the consuls was laid the burden of certain newly-established
festivals such as those celebrating the _Natalia_ of Augustus and the
victory of Actium (Dio Cass. lvi 46; lix. 20).

[1721] See Mommsen _Staatsr._ ii pp. 84-87. The climax was reached with
twenty-five consulships in a single year (189 A.D.) under Commodus (Dio
Cass. lxxii. 12; _Vita Commodi_ 6).

[1722] _Vita Alexandri_ 43.

[1723] Pompon. in _Dig._ 1, 2, 2, 32.

[1724] Marini _Atti Arvali_ p. 784.

[1725] Dio Cassius, lii. cc. 20, 21 (speech of Maecenas), may mean to
imply their existence in his own time. Geib (_Criminalprocess_ pp.
392-397) assigns their disappearance to the end of the first century.

[1726] Pompon. in _Dig._ 1, 2, 2, 32 “divus Claudius duos praetores
adjecit qui de fidei commisso jus dicerent, ex quibus unum divus Titus
detraxit: et adjecit divus Nerva qui inter fiscum et privatos jus
diceret.”

[1727] See last note.

[1728] _Vita Marci_ 10 “praetorem tutelarem primus fecit, cum ante
tutores a consulibus poscerentur, ut diligentius de tutoribus
tractaretur.”

[1729] See § 5.

[1730] On the condemnation of the history of Cremutius Cordus in A.D. 25
“libros per aediles cremandos censuere patres” (Tac. _Ann._ iv. 35).

[1731] Tac. _Ann._ iii 52-55 (A.D. 22).

[1732] We hear of Vespasian during the reign of Caligula ἀγορανομοῦντός
τε ... καὶ τῆς τῶν στενωπῶν καθαρειότητος ἐπιμελουμένου (Dio Cass. lix.
12). Cf. Suet. _Vesp._ 5.

[1733] Tac. _Ann._ ii. 85 (A.D. 19) “Vistilia praetoria familia genita
licentiam stupri apud aediles vulgaverat.”

[1734] ib. xiii. 28 (A.D. 56) “cohibita artius et aedilium potestas
statutumque quantum curules, quantum plebei pignoris caperent vel poenae
inrogarent.”

[1735] Gaius _Inst._ i. 6 (of the _jus edicendi_) “amplissimum jus est in
edictis duorum praetorum ... item in edictis aedilium curulium.” Their
edict was codified under Hadrian, and appears in _Dig._ 21, 1.

[1736] Karlowa (_Rechtsgesch._ i. p. 532) thus distributes them—two
urban, four of the consuls, twelve for the public provinces, and two
attached to the Emperor.

[1737] See § 5.

[1738] See chap. xi.

[1739] The practice first began in 38 B.C. (Dio Cass. xlviii. 43). Cf.
Tac. _Ann._ xvi. 34 “Tum ad Thraseam in hortis agentem quaestor consulis
missus.” They were selected by the consuls themselves (Plin. _Ep._ iv.
15, 8).

[1740] _Dig._ 1, 13, 1, 2 and 4 “sane non omnes quaestores provincias
sortiebantur, verum excepti erant candidati principis ... qui ...
epistulas ejus in senatu legunt.”

[1741] Tac. _Ann._ xi. 22 (A.D. 47) “quaestura ... velut venundaretur.”

[1742] The obligation imposed in 47 was modified in 54 A.D. (Tac. _Ann._
xi. 22; xiii. 5), but was renewed under Domitian (Suet. _Dom._ 4).

[1743] _Vita Alexandri_ 43 “quaestores candidatos ex sua pecunia jussit
munera populo dare ... arcarios vero instituit, qui de arca fisci ederent
munera eademque parciora.”

[1744] The tribunate is to the younger Pliny “inanis umbra et sine honore
nomen” (_Ep._ i 23).

[1745] Tac. _Ann._ i. 77 (A.D. 15, on the proposal of _jus virgarum in
histriones_) “intercessit Haterius Agrippa tribunus plebei increpitusque
est Asinii Galli oratione, silente Tiberio, qui ea simulacra libertatis
senatui praebebat.”

[1746] Tac. _Hist._ iv. 9 (A.D. 69, on the praetors of the _aerarium_
announcing a deficit) “cum perrogarent sententias consules, Volcatius
Tertullinus tribunus plebis intercessit, ne quid super tanta re principe
absente statueretur.” This is the last recorded instance of the
_intercessio_ (Momms. _Staatsr._ ii. p. 309 n. 1).

[1747] Tac. _Ann._ vi. 47 [53] (in A.D. 37 a woman was accused of
_majestas_) “qua damnata cum praemium accusatori decerneretur, Junius
Otho tribunus plebei intercessit, unde ... mox Othoni exitium.” Rusticus
Arulenus, a _flagrans juvenis_, offered to veto the decree of the Senate
which condemned Thrasea Paetus in A.D. 66 (xvi. 26).

[1748] ib. xiii. 28 “inter Vibullium praetorem et plebei tribunum
Antistium ortum certamen, quod immodestos fautores histrionum et a
praetore in vincla ductos tribunos omitti jussisset.”

[1749] Tac. _Hist._ ii. 91 (Vitellius, when Emperor, attacked by
Helvidius Priscus in the Senate) “commotus ... non tamen ultra quam
tribunos plebis in auxilium spretae potestatis advocavit.”

[1750] In A.D. 56 they were forbidden “vocare ex Italia cum quibus lege
agi posset” (Tac. _Ann._ xiii. 28). See Appendix.

[1751] Tac. l.c.

[1752] Juvenal vii. 228 “Rara tamen merces, quae cognitione tribuni
Non egeat.” The words doubtless mean “which does not lead to the
_appellatio_.” In such a case even the Republican tribunes took
“cognisance” of the merits of the appeal. The explanation that the
tribunes were now given some extraordinary jurisdiction in civil cases is
unnecessary.

[1753] p. 365.

[1754] Dio Cass. liv. 26.

[1755] ib. lx. 11.

[1756] e.g. _Cod._ 6, 60, 1 (A.D. 319) “Imp. Constantinus A. consulibus,
praetoribus tribunis plebis senatui salutem.”

[1757] Suet. _Aug._ 40 “Comitiorum quoque pristinum jus reduxit.”

[1758] p. 344.

[1759] Dio Cass. lvi. 40 (Augustus) ἐκ ... τοῦ δήμου τὸ δύσκριτον ἐν ταῖς
διαγνώσεσιν ἐς τὴν τῶν δικαστηρίων ἀκρίβειαν μεταστήσας.

[1760] e.g. the Julian laws passed by Augustus in the _concilium plebis_,
the _lex Junia Norbana_ of the reign of Tiberius, _plebiscita_ of
Claudius. The last known _lex_ is an agrarian law of Nerva (_Dig._ 47,
21, 3, 1).

[1761] Dio Cass. liii. 21 (when the election was entrusted to the people,
Augustus) ἐπεμελεῖτο ὅπως μήτ’ ἀνεπιτήδειοι μήτ’ ἐκ παρακελεύσεως ἤ
καὶ δεκασμοῦ ἀποδεικνύωνται. Cf. Tac. _Ann._ i. 15 “potissima arbitrio
principis, quaedam tamen studiis tribuum fiebant.”

[1762] Tac. _Ann._ i. 15. The change was, we are told by Velleius (ii.
124), in accordance with the instructions of Augustus.

[1763] p. 188.

[1764] Dio Cass. lviii. 20.

[1765] p. 349. In _C.I.L._ vi. 10213 we find a notice of “improbae
comitiae in Aventino, ubi (Sej)anus cos. factus est.” We find Vitellius
canvassing for his candidates in the circus (Tac. _Hist._ ii. 91 “comitia
consulum cum candidatis civiliter celebrans omnem infimae plebis rumorem
in theatro ut spectator, in circo ut fautor adfectavit”). On the other
hand, we have _ab senatu destinatus_ in the inscription quoted on p. 349
n. 6. Dio Cassius (lix. 20), in speaking of the temporary restoration
of popular elections by Caligula, mentions them in connexion with the
consulship.

[1766] Dio Cass. xxxvii. 28.

[1767] p. 369.

[1768] p. 364.

[1769] p. 365.

[1770] p. 364. Hence the expression “nondum senatoria aetate” (Tac.
_Ann._ xv. 28; _Hist._ iv. 42).

[1771] Dio Cass. liv. 17, 30; Tac. _Ann._ i. 75, ii. 37.

[1772] He declared “non lecturum se senatorem nisi civis Romani
abnepotem” (Suet. _Claud._ 24).

[1773] _Vita Commodi_ 6 “ad cujus (Cleandri) nutum etiam libertini in
senatum atque in patricios lecti sunt”; _Vita Elagabali_ 11 “Fecit
libertos praesides, legatos, consules, duces.”

[1774] Tac. _Ann._ iii. 4 “simul novi homines e municipiis et coloniis
atque etiam provinciis in senatum crebro adsumpti”; Suet. _Vesp._ 9
“Amplissimos ordines ... purgavit supplevitque, recenso senatu et equite
... honestissimo quoque Italicorum ac provincialium adlecto.”

[1775] Tac. _Ann._ xi 25; Prof. Pelham in _Classical Review_ ix. p. 441.

[1776] Plin. _Ep._ vi. 19.

[1777] _Vita Marci_ 11.

[1778] For the infliction of such a _nota_ by Domitian see Suet. _Dom._
8, “quaestorium virum, quod gesticulandi saltandique studio teneretur,
movit senatu.”

[1779] p. 347.

[1780] Tac. _Ann._ iv. 42 (Tiberius) “Apidium ... Merulam, quod in acta
divi Augusti non juraverat, albo senatorio erasit.”

[1781] ib. iii. 17; vi. 48.

[1782] ib. iv. 31; xii. 59.

[1783] Dio Cass. lv. 3; Tac. _Ann._ iv. 42.

[1784] Dio Cass. liii. 1 (Augustus in 28 B.C. during the censorship of
himself and Agrippa) ἐν αὐταῖς (ταῖς ἀπογραφαῖς) πρόκριτος τῆς γερουσίας
ἐπεκλήθη: cf. lxxii. 5, where Pertinax πρόκριτος ... τῆς γερουσίας κατὰ
τὸ ἀρχαῖον ἐπωνομάσθη: an expression which seems to show that it was not
a constant designation of the Princeps at this period.

[1785] ib. liv. 13, 14.

[1786] ib. lv. 3; Suet. _Aug._ 35; Merkel ad Ovid. _Fast._ p. vi

[1787] _Lex de imp. Vesp._ l. 9 “ac si e lege senatus edictus esset
habereturque.”

[1788] _Vita Gordianorum_, 11; _Vita Hadriani_, 7; Dio Cass. liv. 3.

[1789] For the summons by a praetor see Tac. _Hist._ iv. 39; by tribunes,
Dio Cass. lvi. 47, lx. 16, lxxviii. 37; by tribunes and praetors, ib.
lix. 24.

[1790] The doubt is raised by Piso’s address to Tiberius during a trial
for _majestas_, “quo ... loco censebis, Caesar? Si primus, habebo quod
sequar: si post omnes, vereor ne imprudens dissentiam” (Tac. _Ann._ i
74). Dio Cassius also says of Tiberius (lvii. 7) καὶ γὰρ αὐτὸς ψῆφον
πολλάκις ἐδίδου. But neither writer may be using strictly technical
language; and it is not certain that the Princeps could be _asked_ his
opinion. On the other hand, when Caesar put the question, the other
magistrates gave _sententiae_ (Tac. _Ann._ iii. 17). The question is not
of much importance for the Principate as a whole, as in its later period
the Emperor usually consulted the Senate by letter. See p. 369.

[1791] See Tac. _Ann._ i. 74, quoted in the last note.

[1792] p. 348.

[1793] p. 359.

[1794] p. 350.

[1795] The formula for the formation of a _collegium legitimum_ runs
“quibus senatus c(oire) c(onvocari) c(ogi) permisit e lege Julia ex
auctoritate Augusti” (_C.I.L._ vi n. 4416).

[1796] p. 372.

[1797] Dio Cass. lxviii. 29.

[1798] Tac. _Ann._ iii. 60; xii. 62.

[1799] ib. xiii 48.

[1800] “de legendo vel exauctorando milite, ac legionum et auxiliorum
descriptione” (Suet. _Tib._ 30).

[1801] Tac. _Hist._ iv. 61; Dio Cass. lxviii. 9, 10. In 49 A.D. during
the reign of Claudius we also read of a reception of Parthian envoys in
the Senate (Tac. _Ann._ xii. 10).

[1802] p. 358.

[1803] p. 358.

[1804] p. 372.

[1805] p. 275.

[1806] Thus the _S. C. Velleianum_, which limited the obligations which
women might incur, begins, “Quod Marcus Silanus et Velleus Tutor consules
verba fecerunt ... quid de ea re fieri oportet, de ea re ita censuere”
(_Dig_. 16, 1, 2, 1); cf. _Dig._ 36, 1, 1, 2 (_S. C. Trebellianum_), 14,
6, 1 (_S. C. Macedonianum_), and see Kipp _Quellenkunde des röm. Rechts_
p. 27.

[1807] The jurists refer to them by the names of their proposers; hence
such designations as _Velleianum_, _Trebellianum_ (see last note). But
such designations are not official. The _S. C. Macedonianum_ is called
after the offender who had been the occasion of the decree.

[1808] Gaius i. 4 “Senatus consultum est, quod senatus jubet atque
constituit: idque legis vicem obtinet, quamvis fuerit quaesitum.”

[1809] _Dig._ 1, 1, 7; 1, 3, 9.

[1810] _Lex de imp. Vesp._ 1. 17 “utique quaecunque ex usu rei publicae
majestateque divinarum humanarum publicarum privatarumque rerum esse
censebit, ei agere facere jus potestasque sit, ita uti divo Augusto ...
fuit.”

[1811] Tac. _Ann._ i. 77 “divus Augustus immunes verberum histriones
quondam responderat, neque fas Tiberio infringere dicta ejus.”

[1812] p. 363.

[1813] Paulus in _Dig._ 28. 2, 26 “Filius familias, si militet ... aut
heres scribi aut exheredari debet, jam sublato edicto divi Augusti, quo
cautum fuerat ne pater filium militem exheredet.”

[1814] It was sometimes used in a more general sense for _constitutio
principis_, as when Papinian says “Jus ... civile est quod ex legibus,
plebis scitis, senatus consultis, decretis principum, auctoritate
prudentium venit” (_Dig._ 1, 1, 7).

[1815] _Dig._ 4, 2, 13 “Exstat enim decretum divi Marci in haec verba,
etc.... Caesar dixit, etc.”

[1816] “Rescript” is properly an _answer_ to a letter, but it soon came
to be used as exquivalent to _epistola_. See Kipp _op. cit._ p. 37.

[1817] Cf. _Dig._ 1, 16, 4, 5 “imperator noster Antoninus Augustus ad
desideria Asianorum rescripsit” (on the mode in which the proconsul
should arrive at the province of Asia).

[1818] Gaius i. 5 “Constitutio principis est, quod imperator decreto
vel edicto vel epistola constituit; nec unquam dubitatum est quin id
legis vicem obtineat.” Cf. Ulpian in _Dig._ 1, 4, 1, 1 “Quodcumque ...
imperator per epistulam et subscriptionem statuit vel cognoscens decrevit
... vel edicto praecepit, legem esse constat. Haec sunt quas vulgo
constitutiones appellamus.”

[1819] Thus the soldier’s testament was created by a series of
mandates: “divus Julius Caesar concessit ... divus Titus dedit: post
hoc Domitianus: postea divus Nerva plenissimam indulgentiam in milites
contulit: eamque et Trajanus secutus est et exinde mandatis inseri coepit
caput tale. Caput ex mandatis, etc.” (Ulpian in _Dig._ 29, 1, 1).

[1820] Gell. xii. 13, 1 “Cum Romae a consulibus judex extra ordinem datus
pronuntiare ... jussus essem.”

[1821] Dio Cass. li. 19 (in 30 B.C. it was decreed) τὸν Καίσαρα τήν τε
ἐξουσίαν τὴν τῶν δημάρχων διὰ βίου ἔχειν ... ἔκκλητόν τε δικάζειν. It
is probable that the last words only describe the establishment of the
Princeps as a high court of voluntary jurisdiction. See Greenidge in
_Classical Review_ viii. p. 144.

[1822] p. 368.

[1823] Paulus in _Dig._ 5, 1, 58 “Judicium solvitur vetante eo qui
judicare jusserat vel etiam eo qui majus imperium in eadem jurisdictione
habet.” The veto in virtue of _par potestas_ is here omitted on account
of its disappearance in the time of Paulus (_circa_ 200 A.D.). See Merkel
_Gesch. der klassischen Appellation_ ii. p. 19.

[1824] Tac. _Ann._ i. 75 “judiciis adsidebat in cornu tribunalis, ne
praetorem curuli depelleret; multaque eo coram adversus ambitum et
potentium preces constituta”; Dio Cass. lvii. 7 ἐπεφοίτα δὲ καὶ ἐπὶ τὰ
τῶν ἀρχόντων δικαστήρια, καὶ παρακαλούμενος ὑπ’ αὐτῶν καὶ ἀπαράκλητος,
καὶ ... ἔλεγεν ὅσα ἐδόκει αὐτῷ, ὡς πάρεδρος. The civil courts are here
meant, or at least included; but it is possible that Tiberius may often
have appeared in them as a self-constituted adviser, not as an authority
to be appealed to; cf. Suet. _Tib._ 33 “magistratibus pro tribunali
cognoscentibus plerumque se offerebat consiliarium; adsidebatque juxtim
vel exadversum in parte primori.” According to Suetonius (l.c.) he
exercised a similar influence over the jurisdiction of the _quaestiones_.

[1825] p. 178.

[1826] p. 382.

[1827] Cic. _pro Tullio_ 16, 38 “quid attinuit te tam multis verbis
a praetore postulare ut adderet in judicium ‘INJURIA,’ et, quia non
impetrasses, tribunos plebis appellare et hic in judicio queri praetoris
iniquitatem quod de injuria non addiderit?” So the tribunician veto
might be employed to elicit an exception. Cic. _Acad. Prior._ ii. 30, 97
“Tribunum aliquem censeo adeant [_al._ videant]: a me istam exceptionem
nunquam impetrabunt.”

[1828] Tac. _Ann._ xiii. 28 (A.D. 56). See Appendix.

[1829] Dio Cass. lix. 8 ὁ μὲν γὰρ Τιβέριος οὕτως αὐτὸν (Silanus)
ἐτίμησεν, ὥστε μήτ’ ἔκκλητόν ποτε ἀπ’ αὐτοῦ δικάσαι ἐθελῆσαι, ἀλλ’ ἐκείνῳ
πάντα αὖθις τὰ τοιαῦτα ἐγχειρίσαι. We do not know what position Silanus
held. If, as is generally supposed, he was consul, the reference may
be to appeals from jurisdiction in _fidei commissa_ delegated by the
Princeps to the consul.

[1830] Suet. _Aug._ 33 “Appellationes quotannis urbanorum quidem
litigatorum praetori delegabat urbano: at provincialium consularibus
viris, quos singulos cujusque provinciae negotiis praeposuisset.” That
the conjecture _praefecto delegabat urbis_ is untenable has been pointed
out by Mommsen (_Staatsr._ ii. p. 985 note 1).

[1831] For the delegation to praetors see p. 368; for that to consuls
cf. Quint. _Inst. Or._ iii. 6, 70 “Non debes apud praetorem petere fidei
commissum sed apud consules, major enim praetoria cognitione summa est.”

[1832] Tac. _Ann._ xiii. 4 “teneret antiqua munia senatus, consulum
tribunalibus Italia et publicae provinciae adsisterent.”

[1833] Cic. _in Verr._ iii. 60, 138; _ad Fam._ xiii. 26, 3; _Fragmentum
Atestinum_ (Bruns _Fontes_) l. 10.

[1834] When the Senate granted the _proconsulare imperium_ to Augustus in
23 B.C. ἐν τῷ ὑπηκόῳ τὸ πλεῖον τῶν ἑκασταχόθι ἀρχόντων ἰσχύειν ἐπέτρεψεν
(Dio Cass. liii. 32). Cf. Ulpian in _Dig._ 1, 16, 8 [“(proconsul) majus
imperium in ea provincia habet omnibus post principem”] and in 1, 18,
4. It is a passive rather than an active _majus imperium_ that is here
contemplated. The whole scheme of the provincial dyarchy rested on the
assumption that there should be no relations between the proconsul and
the Princeps.

[1835] p. 368.

[1836] Ulpian in _Dig._ 49, 2, 1, 2 “sciendum est appellari a senatu non
posse principem, idque oratione divi Hadriani effectum.” It was doubtless
the original principle, confirmed and not created by Hadrian.

[1837] Tac. _Ann._ iii. 14, xvi. 8; Suet. _Aug._ 5.

[1838] There was no legal principle of the kind. According to Dio Cassius
(liii. 17) the monarchical power extended so far ὥστε καὶ ἐντὸς τοῦ
πωμηρίου καὶ τοὺς ἰππέας καὶ τοὺς βουλευτὰς θανατοῦ δύνασθαι, and a
senator, like Calpurnius Piso in 20 A.D., might be brought before the
Emperor (Tac. _Ann._ iii. 10). But Septimius Severus permitted a _senatus
consultum_ to be passed that the Emperor should not be allowed to put
a senator to death without the will of the Senate (Dio Cass. lxxiv. 2;
_Vita Severi_ 7). The principle had been stated earlier by Hadrian (_Vita
Hadriani_ 7 “juravit se nunquam senatorem nisi ex senatus sententia
puniturum”).

[1839] Augustus in 29 B.C. brought Antiochus of Commagene, Tiberius in
A.D. 17 Archelaus of Cappadocia before the Senate (Dio Cass. lii. 43,
lvii. 17; Tac. _Ann._ ii. 42). In A.D. 19 Rhescuporis of Thrace was
accused there (Tac. _Ann._ ii. 67).

[1840] Cases of extortion are to be found in Tac. _Ann._ iii. 66,
xii. 59; _Hist._ iv. 45. In A.D. 23 we find the imperial _procurator_
(_patrimonii_) of Asia brought before the Senate for exceeding his powers
(Tac. _Ann._ iv. 15).

[1841] Tac. _Ann._ iv. 13 (A.D. 23) “Carsidius Sacerdos, reus tamquam
frumento hostem Tacfarinatem juvisset, absolvitur, ejusdemque criminis C.
Gracchus.”

[1842] Amongst the prosecutions for treason against the Princeps which
disfigure the reign of Tiberius we may mention those against Libo Drusus
(Tac. _Ann._ ii. 27 ff.), against Cremutius Cordus (ib. iv. 34, 35), and
against Sejanus (Dio Cass. lviii. 9, 10).

[1843] In A.D. 37 we find that a mother, who had caused her son to commit
suicide, “accusata in senatu ... urbe ... in decem annos prohibita
est” (Tac. _Ann._ vi. 49). In A.D. 61 we find interdiction from Italy
pronounced against a man for a kind of _praevaricatio_, “quod reos, ne
apud praefectum urbis arguerentur, ad praetorem detulisset” (ib. xiv. 41).

[1844] Quintil. _Inst. Or._ iii. 10, 1; vii. 2, 20. For instances see
Tac. _Ann._ ii. 50, iv. 21; Plin. _Ep._ ii. 11, 3 ff. In the last
passage we find the question of the legality of this procedure raised
(“Respondit Fronto Catius deprecatusque est ne quid ultra repetundarum
legem quaereretur.... Magna contentio, magni utrimque clamores, aliis
cognitionem senatus lege conclusam, aliis liberam solutamque dicentibus”).

[1845] It is possible, however, that the Senate was held to continue the
extraordinary criminal jurisdiction of the _comitia_. Tacitus certainly
regards the _cognitio_ as belonging to the Senate (_Ann._ ii. 28 “Statim
corripit reum, adit consules, cognitionem senatus poscit”).

[1846] Plin. _Ep._ vi. 31, 8 (in a case of a forgery of a will) “Heredes,
cum Caesar (Trajanus) esset in Dacia, communiter epistula scripta,
petierant ut susciperet cognitionem.”

[1847] Tac. _Ann._ ii. 79 “Marsus ... Vibius nuntiavit Pisoni Romam ad
dicendam causam veniret. Ille eludens respondit adfuturum, ubi praetor,
qui de veneficiis quaereret, reo atque accusatoribus diem prodixisset”;
ib. iii 10 “petitum ... est a principe cognitionem exciperet; quod ne
reus quidem abnuebat, studia populi et patrum metuens ... haud fallebat
Tiberium moles cognitionis quaque ipse fama distraheretur. Igitur paucis
familiarium adhibitis minas accusantium et hinc preces audit integramque
causam ad senatum remittit.” “Remittit” does not imply that the Senate
was bound to take the case. For the technically voluntary nature of its
jurisdiction cf. ib. iv. 21, xiii. 10, where we find the expressions
“receptus est reus,” “recepti sunt inter reos.”

[1848] Dio Cass. lii. 22, 33. A case of adultery of a centurion with
a tribune’s wife comes before the Emperor. Trajan stated the ground
on which he tried this case (Plin. _Ep._ vi. 31, 6 “Caesar et nomen
centurionis et commemorationem disciplinae militaris sententiae adjecit,
ne omnes ejusmodi causas revocare ad se videretur”).

[1849] An instance is mentioned by Pliny (_Ep._ vii. 6, 8 “mater, amisso
filio ... libertos ejus eosdemque coheredes suos falsi et veneficii reos
detulerat ad principem judicemque impetraverat Julium Servianum”).

[1850] See the section on the functionaries of the Princeps (p. 406 sq.).

[1851] Plin. _ad Traj._ 96, 4 “quia cives Romani erant, adnotavi in urbem
remittendos.”

[1852] It is not properly an appeal but a denial of jurisdiction. But on
what ground the jurisdiction of the procurator was denied is not clear.
The Roman citizenship, in virtue of which St. Paul claimed exemption from
scourging at Philippi and Jerusalem, is not mentioned here. See _Class.
Rev._ x. p. 231.

[1853] Plin. _Ep._ ii. 11; Suet. _Galba_ 9.

[1854] For its attachment to procurators and to persons with
extraordinary commands see the instances given by Mommsen (_Staatsr._
ii p. 270). So the praefectures of the guard, the _vigiles_ and the
fleet, are _honores juris gladii_ (_Vita Alex._ 49). In the case of
ordinary provincial governors it is, perhaps, safer to say that the _jus
gladii_ is possessed by them, or permitted to them, rather than that it
was attached to them by the Princeps (Ulp. in _Dig._ 1, 18, 6, 8 “qui
universas provincias regunt, jus gladii habent et in metallum dandi
potestas iis permissa est”).

[1855] Dio Cass. lii. 22, 33; _Dig._ 48, 19, 27, 1 and 2.

[1856] Even by Tiberius’ reign this procedure had become so formal that
a rule was framed for its exercise. A definite interval was prescribed
within which the Princeps might consider the request for the intercession
(Tac. _Ann._ iii. 51 [A.D. 21] “factum senatus consultum, ne decreta
patrum ante diem _decimum_ ad aerarium deferrentur idque vitae spatium
damnatis prorogaretur”; cf. Dio Cass. lvii. 20; Suet. _Tib._ 75).

[1857] p. 385.

[1858] “Ob laetitiam aliquam vel honorem domus divinae vel ex aliqua
causa, ex qua senatus censuit abolitionem reorum fieri” (Ulp. in _Dig._
48, 16, 12; cf. 48, 3, 2, 1). Domitian by an edict declared that such
_abolitiones_ did not extend to slaves who were in custody awaiting trial
(_Dig._ 48, 16, 16; cf. 48, 3, 2, 1).

[1859] p. 249.

[1860] Ulp. in _Dig._ 3, 1, 1, 10 “De qua autem restitutione praetor
loquitur? Utrum de ea quae a principe vel a senatu? Pomponius quaerit: et
putat de ea restitutione sensum, quam princeps vel senatus indulsit.”

[1861] It is said of Claudius (Suet. _Claud._ 12) “neminem exulum nisi
ex senatus auctoritate restituit”; and of Antoninus Pius (_Vita_ 6) “His
quos Hadrianus damnaverat in senatu indulgentias petit, dicens etiam
ipsum Hadrianum hoc fuisse facturum.”

[1862] Such acts are mentioned under Claudius (Dio Cass. lx. 4), Otho
(Tac. _Hist._ i. 90; Plut. _Otho_ 1), Vitellius (Tac. _Hist._ ii. 92),
Vespasian (Dio Cass. lxvi. 9), Nerva (Plin. _Ep._ iv. 9, 2), Antoninus
Caracalla (_Vita_ 3), and Gordian (Herodian vii. 6, 4).

[1863] Tac. _Ann._ ii. 50 “(Tiberius) liberavit ... Appuleiam lege
majestatis, adulterii graviorem poenam deprecatus.”

[1864] p. 390.

[1865] Gordian is spoken of as παλινδικίαν διδοὺς τοῦς ἀδίκως
κατακριθεῖσι (Herodian vii. 6, 4).

[1866] Ulp. in _Dig._ 3, 1, 1, 10.

[1867] Suet. _Claud._ 14 “(Claudius) iis, qui apud privatos judices pius
petendo formula excidissent, restituit actiones”; _Dom._ 8 “(Domitianus)
ambitiosas centumvirorum sententias rescidit.”

[1868] This power was employed by Augustus (Suet. _Aug._ 32 “Diuturnorum
reorum ... nomina abolevit”), Gaius (Suet. _Calig._ 15 “criminum ... si
quae residua ex priore tempore manebant, omnium gratiam fecit”; cf. Dio
Cass. lix. 6), Vespasian (Dio Cass. lxvi. 9), and Domitian (Suet. _Dom._
9).

[1869] p. 388.

[1870] Cic. _in Vat._ 14, 33.

[1871] p. 390.

[1872] _Dig._ 48, 19, 9, 11 “referre ad principem debet, ut ex
auctoritate ejus poena aut permutetur aut liberaretur.”

[1873] The capital punishment of decurions was prohibited by Hadrian
(_Dig._ 48, 19, 15), and the earliest _mandata_, directing the procedure
of governors in such cases, proceed from the _divi fratres_ (ib. 48, 19,
27, 1 and 2). The punishment of deportation had been confined to the
Princeps and the praefects of the praetorian guard and the city by the
time of Septimius Severus (ib. 48, 19, 2, 1 and 48, 22, 6, 1; cf. § 7).

[1874] Pliny often raises this question in his correspondence with Trajan
(31 [40], 4; 56 [64], 3; 57 [65], 1). The passages seem to show (i.) that
there was at the time no fixed rule defining the governor’s power of
_restitutio_, at least in public provinces; (ii.) that _restitutio_ by a
governor was felt to be permissible in certain cases.

[1875] A passage in Justinian’s _Code_ (9, 51, 1) shows us Antoninus
(Caracalla) saying to a man, who had been deported to an island,
“Restituo te in integrum provinciae tuae.”

[1876] Greenidge in _Classical Review_ viii. p. 437.

[1877] Cf. Tac. _Ann._ iii. 53 (quoted p. 352).

[1878] Dio Cass. xliii. 48; Momms. _Staatsr._ ii. p. 557.

[1879] Tac. _Ann._ xiii. 29; Dio Cass. liii. 2; Suet. _Aug._ 36.

[1880] Tac. l.c.; Dio Cass. liii. 32.

[1881] Tac. l.c.; Dio Cass. lx. 24; Suet. _Claud._ 24. For the election
by the Princeps see the inscription to Ti. Domitius Decidius “electo
(Mommsen, “adlecto” Wilmanns) a T. Claudio Caesare ... qui primus
quaestor per triennium citra ordinem praeesset aerario Saturni” (Wilmanns
n. 1135).

[1882] Momms. _Staatsr._ ii. p. 559.

[1883] Tac. l.c.; Mommsen l.c.

[1884] Dio Cass. lxxi. 33 καὶ χρήματα ἐκ τοῦ δημοσίου ᾔτησε τὴν βουλήν.

[1885] For the meaning of the word—the great basket in which money was
kept in the state treasuries—see Mommsen _Staatsr._ ii. p. 998 n. 1. At
the beginning of the Principate there were, perhaps, fisci rather than a
_fiscus_ (cf. Suet. _Aug._ 101), although there must always have been a
central controlling department.

[1886] Tiberius in 23 B.C. says of Lucilius Capito, procurator of Asia,
“non se jus nisi in servitia et pecunias familiares dedisse” (Tac. _Ann._
iv. 15). He was doubtless a “procurator patrimonii.” Cf. Tac. _Ann._
xii. 60 (“cum Claudius libertos, quos rei familiari praefecerat, sibique
et legibus adaequaverit”); xiii. 1 “P. Celer eques Romanus et Helius
libertus, rei familiari principis in Asia inpositi.”

[1887] Marquardt _Staatsverwaltung_ ii. p. 256.

[1888] _Vita Severi_ 12 “interfectis innumeris Abani partium viris ...
omnium bona publicata sunt.... Tuncque primum privatarum rerum procuratio
constituta est.” The ordinarily accepted view of the relations of these
two departments to one another is that of Hirschfeld and Marquardt,
viz. that the _patrimonium_ was the inalienable crown property, the
_res privata_ the strictly personal property of the Princeps. Karlowa
(_Rechtsgeschichte_ i. p. 505) takes an exactly oppositive view of
their relations, based partly on the fact that extant inscriptions show
the _procurator rationis privatae_ to have had a higher rank than the
_procurator patrimonii_.

[1889] _Mon. Anc._ iii. 39 “HS milliens et septingentiens (170 million
sesterces) ex patrimonio meo detuli.”

[1890] Dio Cass. lv. 25; Tac. _Ann._ i. 78.

[1891] Dio Cass. l.c.; cf. Tac. _Ann._ v. 8 (vi. 3).

[1892] p. 351.

[1893] Tac. _Ann._ ii 85.

[1894] ib. iii. 61.

[1895] ib. xi. 15.

[1896] _Vita Aurel._ 31.

[1897] Mommsen _Römisches Münzwesen_ pp. 742 ff. He shows that the
transitory usurpation of the copper coinage by Nero was due to the same
desire of making a profit as his reduction of the value of silver.

[1898] _Dig._ 2, 15, 8 “divus Marcus oratione in senatu recitata effecit
ne, etc.” Cf. 24, 1, 23; 27, 9, 1.

[1899] Tacitus (_Ann._ vi. 2 [8]) remarks, with reference to proposals
carried in the Senate in 32 A.D., “et bona Sejani ablata aerario ut in
fiscum cogerentur, tanquam referret.”

[1900] Suet. _Aug._ 38 “Liberis senatorum, quo celerius rei publicae
assuescerent, protinus ... latum clavum induere et curiae interesse
permisit.”

[1901] Wilmanns _Index_ p. 602; cf. Suet. _Dom._ 10.

[1902] Augustus had given the post of _praefectus alae_ as well as that
of _tribunus militum_ to senators’ sons (Suet. _Aug._ 38). Mommsen
(_Staatsr._ i. p. 548) thinks that after Tiberius these _laticlavii_, as
a rule, filled the office of tribune alone. They could scarcely have been
given a real command when they first joined the standards.

[1903] The poet Ovid, who assumed the _latus clavus_ by right of birth,
took the first steps towards a senatorial career by filling two posts in
the vigintivirate, but he went no further and subsided into equestrian
rank (Ovid _Trist._ iv. 10, 29; _Fasti_ iv. 383).

[1904] Suet. _Claud._ 24 “Senatoriam dignitatem recusantibus equestrem
quoque ademit.”

[1905] Suet. _Claud._ 24 “Latum clavum (quamvis initio affirmasset non
lecturum se senatorem nisi civis Romani abnepotem) etiam libertini filio
tribuit, sed sub conditione si prius ab equite Romano adoptatus esset.”
Claudius then appealed to the famous precedent set by his ancestor Appius
Caecus.

[1906] _Dig._ 23, 2, 44.

[1907] ib. 1, 9, 8; 50, 1, 22, 5.

[1908] ib. 1, 9, §§ 5, 6, 7, 10.

[1909] Asc. _in or._ _in Tog._ _Cand._ p. 94.

[1910] Dio Cass. lxix. 16 ἐνομοθέτησε δὲ ... ἵνα μηδεὶς βουλευτὴς μητ’
αὐτὸς μήτε δι’ ἑτέρου τέλος τι μισθῶται.

[1911] Severus Alexander at first forbade the taking of interest, but
subsequently allowed 6 per cent (_Vita_ 26). For investment by a senator
at an earlier period cf. Plin. _Ep._ iii. 19, 8 “sum quidem prope totus
in praediis, aliquid tamen fenero.”

[1912] _Dig._ 50, 1, 23 “municeps esse desinit senatoriam adeptus
dignitatem, quantum ad munera; quantum vero ad honorem, retinere creditur
originem.” Cf. ib. 1, 9, 11; 50, 1, 22, 5; _Cod._ 10, 40 [39], 8.

[1913] p. 387.

[1914] Friedländer _Sittengesch._ i. 3.

[1915] Dio Cass. lii. cc. 7, 15, 31; lxvii. 2.

[1916] See p. 413.

[1917] p. 364.

[1918] p. 374.

[1919] Suet. _Claud._ 25 “stipendiaque instituit (Claudius) et
imaginariae militiae genus, quod vocatur ‘supra numerum,’ quo absentes et
titulo tenus fungerentur.”

[1920] In A.D. 16 a proposal was made in the Senate “ut ... legionum
legati, qui ante praeturam ea militia fungebantur, jam tum praetores
destinarentur” (Tac. _Ann._ ii. 36).

[1921] Galba’s is a good instance of a distinguished senatorial career.
He obtained office _ante legitimum tempus_; after the praetorship he
governed Aquitania, after the consulship Upper Germany; he was then
proconsul of Africa, and finally for eight years legate of Tarraconensis.
See Suet. _Galba_ 6, 7, 8.

[1922] Tac. _Ann._ iv. 6 “(the state contracts) societatibus equitum
Romanorum agitabantur.”

[1923] Dio Cass. liii. 30. On Antonius Musa, who had saved Augustus’
life, was conferred τὸ χρυσοῖς δακτυλίοις (ἀπελεύθερος γὰρ ἦν) χρῆσθαι:
ib. xlviii. 45 (Augustus, on the reception of Menas the former freedman
of Sex. Pompeius) δακτυλίοις τε χρυσοῖς ἐκόσμησε καὶ ἐς τὸ τῶν ἱππέων
τέλος ἐσέγραψε. These words _may_ mean that Menas was made an _eques equo
publico_ as well.

[1924] A rescript of Hadrian is quoted with reference to the _ingenuitas_
conferred by the gold ring (Ulp. in _Dig._ 40, 10, 6). For other
references to this right see _Dig._ 38, 2, 3; Justin. _Nov._ 78.

[1925] The usurpation of the gold ring by freedmen, which was repressed
by Claudius (Suet. _Claud._ 25) and Domitian, and the inspection in
the theatre instituted by the latter (Martial v. 8) seem to refer to
a civil class; at least there is no evidence that such people claimed
to be _equites equo publico_. When Dio Cassius (lvi. 42) speaks of οἵ
τε ἱππεῖς, οἵ τε ἐκ τοῦ τέλους καὶ οἱ ἄλλοι, it is not clear who “the
others” are, but the passage shows that persons other than those in the
corps were called “equites.”

[1926] Dionys. vi. 13.

[1927] The _seviri_ would seem to show that there were six _turmae_. See
Hirschfeld _Verwaltungsgesch._ p. 243 n. 1.

[1928] Hence such expressions as _a divo Hadriano equo publico honoratus_
(Wilmanns 1825), _equo publico exornatus ab Impp. Severo et Antonino
Augg._ (ib. 1595).

[1929] p. 347.

[1930] p. 225. It is probable that the revision of the knights described
in Suet. _Claud._ 16, _Vesp._ 9 refers to the censorship of these
emperors.

[1931] _a censibus equitum Romanorum_ (Wilmanns 1275), _a censibus a
libellis Aug._ (ib. 1249 b), _a libellis et censibus_ (ib. 1257).

[1932] p. 225.

[1933] Suet. _Aug._ 38 “equitum turmas frequenter recognovit, post longam
intercapedinem reducto more transvectionis.”

[1934] ib. 38 “mox reddendi equi gratiam fecit eis, qui majores annorum
quinque et triginta retinere eum nollent.”

[1935] ib. 39 “Unum quemque equitum rationem vitae reddere coegit.”

[1936] Suet. _Calig._ 16 “palam adempto equo, quibus aut probri aliquid
aut ignominiae inesset.”

[1937] Suet. _Aug._ 37, 39.

[1938] In those of Caligula (Suet. _Calig._ 16) and Nero (Dio Cass.
lxiii. 13), and perhaps in those of Vitellius (Tac. _Hist._ ii. 62) and
Severus Alexander (_Vita_ 15).

[1939] Zosimus ii. 29.

[1940] By the side of such titles as _equo publico judex selectus ex
V decuriis_ (Wilmanns 2110) and _equum publicum habens adlectus in V
decurias_ (ib. 2203) we find the title _quin. decur. judi(cum) (inter)
quatringenarios_ (Henzen 6469), in which a purely monetary qualification
is expressed.

[1941] Wilmanns nn. 1639, 2841, _Index_ p. 564; Mommsen _Staatsr._ iii.
p. 565.

[1942] Wilmanns n. 2858; Mommsen ib. n. 3.

[1943] These might have been included in the _equites illustres_ whom
Augustus forbade to set foot in Egypt (Tac. _Ann._ ii. 59 “vetitis nisi
permissu ingredi senatoribus aut equitibus Romanis illustribus”), but the
knights chiefly referred to here are doubtless distinguished permanent
members of the order.

[1944] The variants used by Tacitus would apply to both of these classes.
He uses _insignis_ (_Ann._ xi. 5) and speaks of _primores equitum_
(_Hist._ i. 4). Two ex-praefects of the praetorian guard are described as
_equites Romani dignitate senatoria_ (_Ann._ xvi. 17). Cf. note 3.

[1945] For the promotions from one praefecture to another, see Mommsen
_Staatsr._ ii. p. 1042 n. 1.

[1946] p. 61.

[1947] p. 120.

[1948] Tac. _Ann._ vi. 11 [17] “duratque simulacrum, quotiens ob ferias
Latinas praeficitur qui consulare munus usurpet.”

[1949] Suet. _Caes._ 76 “praefectos ... pro praetoribus constituit, qui
absente se res urbanas administrarent”; Dio Cass. xliii. 28 πολιανόμοις
τισίν ὀκτώ, ὤς τισι δοκεῖ, ἢ ἔξ, ὡς μᾶλλον πεπίστευται, ἐπιτρέψας.

[1950] Tac. _Ann._ vi. 11 [17].

[1951] Tac. l.c.; cf. Dio Cass. liv. 19.

[1952] In Tac. _Ann._ vi. 10 [16] it is said of L. Piso (died 32 A.D.)
“praefectus urbi recens continuam potestatem et insolentia parendi
graviorem mire temperavit.”

[1953] We find Maximus as praefect during Caligula’s presence in Rome in
39 A.D. (Dio Cass. lix. 13).

[1954] Tac. _Ann._ vi. 11 [17] “(Augustus) sumpsit e consularibus.”

[1955] _Vita Commodi_ 14 “praefectos urbi eadem facilitate mutavit”;
_Vita Pii_ 8 “successorem viventi bono judici nulli dedit nisi Orfito
praefecto urbi, sed petenti.” For the frequent life-long tenure of the
office see Dio Cass. lii. 24.

[1956] Paulus in _Dig._ 5, 1, 12, 1 “(Judicem dare possunt) hi quibus
id more concessum est propter vim imperii, sicut praefectus urbi
ceterique Romae magistratus”; contrast Pompon. in _Dig._ 1, 2, 2, 33 “nam
praefectus annonae et vigilum non sunt magistratus, sed extra ordinem
utilitatis causa constituti sunt.”

[1957] Messala Corvinus, praefect _circa_ 25 B.C. (Jerome in Euseb.
_Chron._ a. 1991).

[1958] Seneca _Ep._ 83, 14 “L. Piso urbis custos ... officium ... suum,
quo tutela urbis continebatur, diligentissime administravit.”

[1959] Suet. _Aug._ 49.

[1960] Tac. _Ann._ iv. 5.

[1961] _Dig._ 1, 12.

[1962] Tac. _Ann._ xiv. 41 (A.D. 61) “pari ignominia (interdiction
from Italy) Valerius Ponticus adficitur, quod reos, ne apud praefectum
urbis arguerentur, ad praetorem detulisset, interim specie legum, mox
praevaricando ultionem elusurus.”

[1963] Dio Cass. lii. 21 καὶ τὰς δίκας, τάς τε παρὰ πάντων ὧν εἶπον
ἀρχόντων ἐφεσίμους τε καὶ ἀναπομπίμους καὶ τὰς τοῦ θανάτου, τοῖς τε
ἐν τῇ πόλει, πλὴν ὦν ἂν εἴπω, καὶ τοῖς ἔξω αὐτῆς μέχρι πεντήκοντα καὶ
ἑπτακοσίων σταδίων οἰκοῦσι κρίνῃ: Ulp. in _Dig._ 1, 12, 1 “Omnia omnino
crimina praefectura urbis sibi vindicavit [a praefectura urbis sibi
vindicari, _Momms._], nec tantum ea, quae intra urbem admittuntur, verum
ea quoque, quae extra urbem intra Italiam [intra c̅ lapidem, _Momms._,
cf. 1, 12, 1, 4] epistula divi Severi ad Fabium Cilonem praefectum urbi
missa declaratur.”

[1964] _Dig._ 1, 12, 3; 48, 19, 8, 5.

[1965] _Collatio_ 14, 3, 2; _Dig._ 1, 12, 1, 4. Cf. note 5.

[1966] Ulp. in _Dig._ 1, 12, 3 “Praefectus urbi, cum terminos urbis
exierit, potestatem non habet: extra urbem potest jubere judicare.”

[1967] _Dig._ 1, 12, 1, 6 “Sed et ex interdictis quod vi aut clam aut
interdicto unde vi audire [aut unde vi adiri, _Momms._] potest.”

[1968] Dio Cass. lii. 21 (quoted n. 5); _Cod._ 7, 62, 17 (Constantine,
A.D. 322) “si apud utrumque praetorem, dum quaestio ventilatur, ab aliqua
parte auxilium provocationis fuerit objectum, praefecturae urbis judicium
sacrum appellator observet.”

[1969] Dio Cass. liii. 11.

[1970] Tac. _Ann._ iv. 5. Otho speaks of the corps as “Italiae alumni et
Romana vere juventus” (Tac. _Hist._ i 84).

[1971] Suet. _Tit._ 6.

[1972] _Vita Severi_ 14.

[1973] Two are regarded as the normal number by Dio Cassius (lii. 24).
Three are found under Commodus, Didius Julianus, and Severus Alexander.
See Mommsen _Staatsr._ ii. p. 867.

[1974] _Collatio_ 14, 3, 2. The right was given by constitutions (“jam eo
perventum est constitutionibus”). The citation is from Ulpian, and this
jurisdiction had doubtless been attained before the time of Caracalla.
Cf. _Vita Alex._ 21.

[1975] _Cod._ 9, 2, 6, 1 (Gordian, A.D. 243, with reference to appeal
against a _praeses provinciae_ on the ground of condemnation in absence)
“praefectos praetorio adire cura.”

[1976] ib. 4, 65, 4, 1 (Alexander, A.D. 222) “si majorem animadversionem
exigere rem deprehenderit (praeses provinciae), ad Domitium Ulpianum
praefectum praetorio et parentem meum reos remittere curabit”; cf. 8, 40
[41], 13.

[1977] _Dig._ 12, 1, 40 “Lecta est in auditorio Aemilii Papiniani
praefecti praetorio juris consulti cautio hujusmodi”; cf. 22, 1, 3, 3.

[1978] p. 386.

[1979] _Dig._ 1, 11, 1, 1 (Arcadius in early part of fourth century
A.D.) “praefectorum auctoritas ... in tantum meruit augeri ut appellari
a praefectis praetorio non possit. Nam cum antea quaesitum fuisset an
liceret ... et extarent exempla eorum qui provocaverint, postea publice
sententia principali lecta appellandi facultas interdicta est;” _Cod._ 7,
62, 19 (Constantine, A.D. 331) “a praefectis autem praetorio provocare
non sinimus.”

[1980] Cf. _Vita Marci_ 11 “habuit secum praefectos, quorum et
auctoritate et periculo semper jura dictavit.”

[1981] See below on the _consilium_.

[1982] Karlowa _Rechtsgesch._ i. p. 549. A knight of the third century
is appointed _in consilium praef. praet. item urb(i) ex sacra jussione_
(Henzen 6519). Cf. Mommsen _Staatsr._ ii. p. 1122 n. 1.

[1983] _Cod._ 1, 26, 2 (Alexander, A.D. 235) “Formam a praefecto
praetorio datam, etsi generalis sit, minime legibus vel constitutionibus
contrariam, si nihil postea ex auctoritate mea innovatum est, servari
aequum est.”

[1984] _Vita Alex._ 21.

[1985] ib. “Alexander autem idcirco senatores esse voluit praef. praet.,
ne quis non senator de Romano senatore judicaret.”

[1986] ib. “si quis imperatorum successorem praef. praet. dare vellet,
laticlaviam eidem ... summitteret”; cf. _Vita Commodi_ 4; _Vita Hadriani_
8 “cum Attianum ex praefecto praetorii ornamentis consularibus praeditum
faceret senatorem.”

[1987] Cic. _ad Att._ iv. 1, 7; Dio Cass. xxxix. 9.

[1988] Dio Cass. xlvi. 39.

[1989] _Dig._ 1, 2, 2, 32.

[1990] Dio Cass. liv. 1; _Mon. Anc._ Gr. iii. 6.

[1991] Mommsen _Staatsr._ ii. p. 1038 n. 1; Hirschfeld
_Verwaltungsgesch._ p. 130 n. 1; Karlowa _Rechtsgesch._ i. p. 553.

[1992] Dio Cass. liv. 17; lv. 26.

[1993] _Praefecti frumenti dandi_ are found, apparently for the purpose
of distribution, as late as the second century. They were generally
ex-praetors and appointed _ex senatus consulto_, probably because the
_aerarium_ bore or contributed to the cost. See Mommsen _Staatsr._ ii. p.
673; Karlowa _Rechtsgesch._ i. p. 553.

[1994] Dio Cass. lii. 24; Seneca _de Brev. Vitae_ 19, 1.

[1995] Hirschfeld in _Philologus_ 1870, pp. 79 ff.

[1996] Karlowa _Rechtsgesch._ i p. 556.

[1997] _Dig._ 48, 2, 13; cf. 48, 12, 1.

[1998] ib. 14, 5, 8; 14, 1, 1, 18.

[1999] ib. 14, 5, 8 “sententiam (praefecti annonae) conservavit
imperator”; cf. Dio Cass. lii. 33.

[2000] p. 235.

[2001] Dio Cass. liv. 2.

[2002] Paulus in _Dig._ 1, 15, 1 and 3.

[2003] Karlowa _Rechtsgesch._ i. p. 558.

[2004] _Dig._ 1, 15; cf. 12, 4, 15; 47, 2, 57 [56], 1.

[2005] ib. 1, 15, 3 and 4; Cod. 1, 43, 1.

[2006] _Dig._ 19, 2, 56; 20, 2, 9. _Praefecti vigilum_ (one of whom is
the jurist Herennius Modestinus) take part in a controversy which has
come down to us known as the _lis fullonum_ (Bruns _Fontes_; _C.I.L._ vi.
n. 266). The case has been discussed by Bethmann-Hollweg _Civilprozess_
ii. p. 767 n. 60 and Mommsen in _C.I.L._ l.c.; _Staatsr._ ii. p. 1058 n.
3.

[2007] Karlowa _Rechtsgesch._ i. p. 539.

[2008] Coins of 16 B.C. exist (Eckhel vi. 105) with the inscription “s.
p. q. R. imp. Cae(sari), quod v(iae) m(unitae) s(unt) ex ea p(ecunia)
q(uam) is ad a(erarium) de(tulit)”; cf. _Vita Pert._ 9 “aerarium in suum
statum restituit. Ad opera publica certum sumptum constituit. Reformandis
viis pecuniam contulit.”

[2009] Frontinus _de Aquaed._ 100 and 104.

[2010] Dio Cass. lvii. 14.

[2011] Tac. _Hist._ i. 58.

[2012] Cic. _pro Caec._ 20, 57.

[2013] Tac. _Ann._ iv. 6 “intra paucos libertos domus.”

[2014] Tac. _Hist._ i. 58 “Vitellius ministeria principatus per libertos
agi solita in equites Romanos disponit.” In Otho’s reign we find a
mention of Secundus the rhetor ἐπὶ τῶν ἐπιστολῶν γενόμενος (Plut. _Otho_
9).

[2015] The evidence for Hadrian’s change is mainly epigraphic. See
Hirschfeld _Verwaltungsgesch._ i. p. 32. Two instances of it are found
in _Vita Hadr._ 22 “ab epistulis et a libellis primus equites Romanos
habuit.”

[2016] Dio Cass. lii. 25.

[2017] Tac. _Agric._ 4 “Cn. Julius Agricola ... utrumque avum
procuratorem Caesarum habuit, quae equestris nobilitas est.”

[2018] p. 405.

[2019] i.e. the posts of _praefectus cohortis_, _tribunus militum_,
_praefectus alae_. See Suet. _Claud._ 25.

[2020] Hirschfeld _op. cit._ p. 248.

[2021] Tac. _Ann._ iv. 15. See p. 395.

[2022] Ulp. in _Dig._ 1, 19, 1, 1 “si venditionis vel donationis vel
transactionis causa quid agat, nihil agit: non enim alienare ei rem
Caesaris, sed diligenter gerere commissum est.”

[2023] _Dig._ 1, 19, 1.

[2024] Suet. _Claud._ 12 “ut ... rata essent, quae procuratores sui
in judicando statuerent, precario exegit” (from the Senate). Tacitus
exaggerates the nature of the change when he says that “Claudius
libertos, quos rei familiari praefecerat, sibique et legibus
adaequaverit” (_Ann._ xii. 60).

[2025] Cf. Ulp. in _Dig._ 1, 16, 9 (with reference to the duties of a
proconsul) “sane si fiscalis pecuniaria causa sit, quae ad procuratorem
principis respicit, melius fecerit, si abstineat.”

[2026] Henzen 6525.

[2027] Wilmanns 1259, 1262.

[2028] _Cod._ 3, 26, 7.

[2029] Suet. _Vesp._ 12; Henzen 6396.

[2030] _C.I.L._ v. n. 737.

[2031] Hirschfeld _Verwaltungsgesch._ i. p. 32.

[2032] ib. p. 35.

[2033] Cf. the title of _Dig._ 1, 19 “De officio procuratoris Caesaris
vel rationalis.”

[2034] Hirschfeld, _op. cit._ p. 37; Liebenam _Beiträge zur
Verwaltungsgesch._ p. 32.

[2035] Strabo iii. p. 167. The title _a copiis militaribus_ is found in
inscriptions (Orelli 2922, 3505).

[2036] Tac. _Ann._ ii. 47. Here it is said of cities of Asia, “quantum
aerario aut fisco pendebant, in quinquennium remisit (Caesar).”
The _procurator Asiae_ of _Ann._ iv. 15 is probably a _procurator
patrimonii_. See p. 395.

[2037] p. 395. For procurators _ad bona damnatorum_ see Wilmanns 1278,
1291. For a _procurator a caducis_, _C.I.L._ iii. n. 1622.

[2038] Wilmanns 1257, 1272, 1273, 1275, 1285.

[2039] p. 396.

[2040] Timesitheus, the father-in-law of Gordian, was _proc. tam
patrimoni quam rat. privatar._ in one district, _proc. ration. privat._
in another (Wilmanns 1293).

[2041] Herodian vii. 1 (Maximin) τήν τε θεραπείαν πᾶσαν, ἣ συγγεγόνει τῷ
Ἀλεξάνδρῳ τοσούτων ἐτῶν, τῆς βασιλείου αὐλῆς ἀπέπεμψε: cf. _Vita_ Pert.
12 “Sane nullum ex eis, quos Commodus rebus gerendis imposuerat, mutavit,
exspectans urbis natalem, quod eum diem rerum principium volebat esse.”

[2042] Liebenam _op. cit._ p. 55.

[2043] _Vita Nigri_ 7 “cum unus ad memoriam, alter ad libellos paruisset,
statim praefecti facti sunt (Paulus et Ulpianus).”

[2044] This may be illustrated by the careers of Burrus (_proc.
Augustae_, _proc. Ti. Caesaris_, _proc. divi Claudii_, _praefecto
praetori_, _C.I.L._ xii. 5842), of Vibianus Tertullus (_ab epistulis
Graecis_, _proc. a rationibus_, _praefectus vigilum_, _C.I.L._ iii. 6574)
and of Sex. Var. Marcellus (_proc. aquarum_, _proc. Brittaniae_, _proc.
rationis privatae_, _vice-praefectus praetorio_, Orelli 946).

[2045] Tac. _Ann._ xv. 35 (under Nero, in A.D. 64, Torquatus Silanus was
forced to death on various grounds) “quin eum inter libertos habere, quos
ab epistulis et libellis et rationibus appellet, nomina summae curae et
meditamenta”; cf. ib. xvi. 8 (A.D. 65) “Ipsum dehinc Silanum increpuit
isdem quibus patruum ejus Torquatum, tanquam disponeret jam imperii curas
praeficeretque rationibus et libellis et epistulis libertos.”

[2046] Dio Cass. lii. 33; Stat. _Silv._ v. 1, esp. 83-107; Justinus
xliii. 5, 12; Suid. s.v. Διονύσιος.

[2047] Seneca _Cons. ad Polyb._ vi. 4 and 5.

[2048] _Vita Carini_ 16 “fastidium subscribendi tantum habuit ut inpurum
quendam ... ad subscribendum poneret.” The Princeps himself may not have
written more than his signature. See _Vita Commodi_ 13 “ipse Commodus
in subscribendo tardus et neglegens, ita ut libellis una forma multis
subscriberet.”

[2049] Karlowa _Rechtsgesch._ i. p. 545.

[2050] Dio Cass. _Ep._ lxxviii. 13.

[2051] Karlowa l.c.

[2052] _Vita Carini_ 8 “Julius Calpurnius, qui ad memoriam dictabat.” He
attended the Princeps with the other secretaries; see _Vita Alex._ 31
“Postmeridianas horas subscriptioni et lectioni epistularum semper dedit,
ita ut ab epistulis, a libellis et a memoria semper adsisterent.”

[2053] This _consilium_ must not be confused with the committee of
the Senate which had been employed by Augustus and Tiberius, but
was subsequently discontinued. This board, composed of some of the
magistrates and a number of senators chosen by lot, had given a
preliminary consideration to the business to be submitted to the Senate
(Suet. _Aug._ 35; _Tib._ 55; Dio Cass. liii. 21). Something like it was
devised by Mamaea in the reign of Severus Alexander (Dio Cass. lxxx. 1;
Herodian vi. 1).

[2054] Dio Cass. lv. 27; lvii. 7.

[2055] Tac. _Ann._ iii. 10 “paucis familiarium adhibitis” (in the trial
of Piso, A.D. 20). In Nero’s trial of Octavia in A.D. 62 his body of
advisers (“amicos quos velut consilio adhibuerat princeps” Tac. _Ann._
xiv. 62) may have been regarded as a _consilium domesticum_.

[2056] _Vita Hadr._ 18 “cum judicaret, in consilio habuit non amicos
suos aut comites solum, sed juris consultos ... quos tamen senatus omnes
probasset.”

[2057] Hirschfeld _Verwaltungsgesch._ i. p. 215. Probably only the
equestrian members of this board received salaries (Mommsen _Staatsr._
ii. p. 990).

[2058] Cf. _Vita Hadr._ 8 “erat ... tunc mos, ut, cum princeps causas
agnosceret, et senatores et equites Romanos in consilium vocaret et
sententiam ex omnium deliberatione proferret.”

[2059] e.g. “centenario consiliario Aug(usti) ... juris perito” (Wilmanns
1286).

[2060] p. 380.

[2061] _Vita Alex._ 16 “neque ullam constitutionem sacravit sine viginti
jurisperitis et doctissimis ac sapientibus viris isdemque disertissimis
non minus quinquaginta.”

[2062] In Maecenas’ supposed advice to Augustus, which in this, as
in other respects, probably reflects the practice of the time of Dio
Cassius, it is said of the _consilium_ ἄλλοι ἄλλοτε διαγινωσκέτωσαν (Dio
Cass. lii. 33).

[2063] Suet. _Aug._ 33.

[2064] Suet. _Nero_ 15.

[2065] _Vita Alex._ 16 “ut iretur per sententias singulorum ac
scriberetur quid quisque dixisset.”

[2066] p. 410.

[2067] p. 314.

[2068] Plin. _H.N._ iii. 46 “nunc ambitum ejus (Italiae) urbesque
enumerabimus, qua in re praefari necessarium est auctorem nos divum
Augustum secuturos, descriptionemque ab eo factam Italiae totius in
regiones XI.”

[2069] See the references in Marquardt _Staatsverw._ i. p. 220.

[2070] _Lex Malacitana_ c. lii. ff.

[2071] Kuhn _Verfassung des römischen Reiches_ i. pp. 236, 237. In an
inscription of Hadrian’s time we find in Ostia _II. vir ... in comitiis
factus_ (_C.I.L._ xiv. 375). For this and other instances see Liebenam
_Städteverwaltung_ p. 479.

[2072] p. 438.

[2073] _Vita Hadr._ 22 “quattuor consulares per omnem Italiam judices
constituit.” Of Antoninus Pius, who was one of these, it is said “cum
Italiam regeret” (_Vita Anton._ 3). Cf. App. _B.C._ i. 38.

[2074] _Vita M. Anton._ 11 “datis juridicis Italiae consuluit ad id
exemplum, quo Hadrianus consulares viros reddere jura praeceperat.”

[2075] Ulpian in _Fragmenta Vaticana_ 205, 232, 241.

[2076] Ulp. l.c.; _Dig._ 40, 5, 41, 5.

[2077] Fronto _ad Amicos_ ii. 7.

[2078] Marquardt (_Staatsverw._ i. p. 227) remarks that such a question
as the qualification of a decurion belongs under Caesar’s legislation
(_lex Ursonensis_ c. 105) to the municipal courts.

[2079] pp. 408, 410.

[2080] Mommsen _Staatsr._ ii. p. 1082, Liebenam _Städteverw._ p. 480, and
in _Philologus_ lvi. 290 ff. How far this curatorship became a standing
office is uncertain.

[2081] p. 428.

[2082] The first official _ad corrigendum statum Italiae_ belongs to the
year 214 A.D., while the provincial _corrector_ goes back to the time of
Trajan (Marquardt _Staatsverw._ i. pp. 228, 229).

[2083] See the inscription of Atina of the time of Augustus (Wilmanns
1120), “T. Helvio ... legato Caesaris Augusti, qui Atinatibus HS ...
legavit, ut liberis eorum ex reditu, dum in aetatem pervenirent,
frumentum et postea sestertia singula millia darentur.”

[2084] Victor _Epit._ 12; Dio Cass. lxviii. 5.

[2085] Marquardt _Staatsverw._ ii. pp. 143, 144. Pius, in honour of his
wife Faustina, created a fund for _puellae Faustinianae_ (_Vita_ 8);
Alexander, in honour of his mother, one for _pueri puellaeque Mammaeani_
(_Vita_ 57).

[2086] Our knowledge of this institution is derived chiefly from two
metal tables, the _Tabula Veleias_ (of Veleia in Cisalpine Gaul) and the
_Tabula Baebianorum_ (of the Ligures Baebiani near Beneventum). See E.
Desjardins _De tabulis alimentariis_, Mommsen in _I.R.N._ 1354, Wilmanns
2844, 2845. On the institution see Marquardt _Staatsverw._ ii. pp.
141-147, Liebenam _Städteverw._ pp. 105, 360.

[2087] p. 413.

[2088] e.g. _curator viae Appiae, praefectus alimentorum_: _curator
viarum et praefectus alimentorum Clodiae et coherentium_: _curator viae
Aemiliae et alimentorum_ (Wilmanns 1189, 1215, 1211). See Marquardt,
Liebenam ll.cc., and Mommsen _Staatsr._ ii. p. 1079. In districts not
pierced by the great roads, procurators (_alimentorum, ad alimenta_) were
employed.

[2089] Marquardt l.c. p. 147.

[2090] Tac. _Ann._ i. 2 “Neque provinciae ilium rerum statum abnuebant,
suspecto senatus populique imperio ob certamina potentium et avaritiam
magistratuum, invalido legum auxilio, quae vi, ambitu, postremo pecunia
turbabantur.”

[2091] δῆμος καὶ γερουσία (Dio Cass. liii. 12). These provinces are
“propriae populi Romani” as opposed to those “propriae Caesaris” (Gaius
ii. 21).

[2092] Tac. _Ann._ i. 76; Dio Cass. lx. 24; Suet. _Claud._ 25.

[2093] _Vita Marci_ 22 “Provincias ex proconsularibus consulares (i.e.
governed by consular _legati_) aut ex consularibus proconsulares aut
praetorias pro belli necessitate fecit.”

[2094] Asia, Africa, Baetica, Narbonensis, Sardinia and Corsica, Sicilia,
Macedonia, Achaea, Creta and Cyrene, Cyprus, Bithynia.

[2095] Tarraconensis, Germania superior, Germania inferior, Brittania,
Pannonia sup., Pannonia inf., Moesia sup., Moesia inf., Dacia, Dalmatia,
Cappadocia, Syria, Lusitania, Aquitania, Lugdunensis, Belgica, Galatia,
Pamphylia and Lycia, Cilicia, Arabia, Numidia. See Marquardt _Staatsv._
i. p. 494.

[2096] Alpes Maritimae, Alpes Cottiae, Alpes Poeninae, Raetia, Noricum,
Thracia, Epirus, Mauretania Tingitana, Mauretania Caesariensis. See
Marquardt l.c.

[2097] Suet. _Aug._ 47, _Claud._ 25, _Vesp._ 8.

[2098] Mommsen _Staatsr._ ii. p. 858; Marquardt _Staatsverw._ i. p.
358. The earliest known commissioner dates from the time of Trajan. He
was “missus in provinciam Achaiam ... ad ordinandum statum liberarum
civitatum” (Plin. _Ep._ viii. 24).

[2099] Tac. _Ann._ ii. 47.

[2100] Strabo xiii. p. 621; Cic. _pro Flacco_ 29, 71.

[2101] Tac. _Ann._ xii. 63.

[2102] Mommsen _Staatsr._ iii. p. 684.

[2103] Mommsen points out (ib. p. 685) that, if it did, Spain after the
time of Vespasian would have paid no taxes.

[2104] _C.I.L._ iii. n. 781.

[2105] _Dig._ 27, 1, 17; cf. Suet. _Claud._ 25.

[2106] _Dig._ 50, 15, 8, 5 “Divus Antoninus Antiochenses colonos fecit
salvis tributis.”

[2107] ib. 7 “Divus Vespasianus Caesarienses colonos fecit non adjecto
ut et juris Italici essent, sed tributum his remisit capitis; sed divus
Titus etiam solum immune factum interpretatus est.”

[2108] _Dig._ l.c.

[2109] “Rationes imperii” (Suet. _Cal._ 16), λογισμοὺς τῶν δημοσίων
χρημάτων (Dio Cass. lix. 9). Cf. Tac. _Ann._ i. 11.

[2110] Marquardt _Staatsverw._ ii. pp. 207-211.

[2111] Dio Cass. liii. 17.

[2112] Liv. _Ep._ 134; cf. Dio Cass, liii. 22.

[2113] Tac. _Ann._ i 31 and 33; ii. 6; xiv. 46.

[2114] Dio Cassius (liii. 22), after saying that Augustus made ἀπογραφαί
in the Gallic provinces, adds κᾀντεῦθεν ἔς τε τὴν Ἰβηρίαν ἀφίκετο, καὶ
κατεστήσατο καὶ ἐκείνην.

[2115] St. Luke ii. 2; Joseph. _Antiq._ xvii. 355.

[2116] See the inscriptions collected by Kubitschek in Pauly-Wissowa
_Real-Encyclopädie_, s.v. _census_.

[2117] The _tres Galliae_ honour a procurator as “primus umquam eq(ues)
R(omanus) a censibus accipiendis” (Wilmanns 1269). The inscription is
attributed to the joint rule of Severus and Caracalla.

[2118] Kubitschek l.c.

[2119] The chief evidence that there was comes from the province of
Dacia. In a document of sale from Alburnum Majus, dated May 6, 159 A.D.
the purchaser of a house binds himself “[uti] ... pro ea domo tributa
usque ad recensum dep[e]n[dat]” (Bruns _Fontes_).

[2120] _Dig._ 50, 15,3 “in Syriis a quattuordecim annis masculi, a
duodecim feminae usaue ad sexagensimum quintum annum tributo capitis
obligantur.”

[2121] Grenfell and Hunt _Oxyrhynchus Papyri_ ii. pp. 207 ff.

[2122] _Dig._ 50, 15, 4 “Forma censuali cavetur, ut agri sic in censum
referantur. Nomen fundi cujusque: et in qua civitate et in quo pago sit:
et quos duos vicinos proximos habeat. Et arvum ... vinea ... olivae ...
pratum ... pascua ... silvae caeduae.”

[2123] Plin. _H.N._ xix. 40; xxi. 77; Tac. _Ann._ iv. 72.

[2124] Josephus _Bell. Jud._ ii. 16, 4; cf. Grenfell and Hunt l.c.

[2125] Josephus _Bell. Jud._ vii. 6, 6. The Jews seem, however, to
have paid other personal taxes as well. See App. _Syr._ 50; Marquardt
_Staatsverw._ ii. p. 202.

[2126] Boadicea is made to say that, besides the land-tax, τῶν σωμάτων
αὐτῶν δασμὸν ἐτήσιον φέρομεν (Dio Cass. lxii. 3).

[2127] _C. I. Gr._ 2336.

[2128] p. 321.

[2129] Gaius ii. 21 “(_provincialia_ praedia) quorum alia stipendiaria,
alia tributaria vocamus. Stipendiaria sunt ea, quae in iis provinciis
sunt quae propriae populi Romani esse intelliguntur. Tributaria sunt ea,
quae in his provinciis sunt quae propriae _Caesaris esse_ creduntur.”

[2130] Tac. _Ann._ iv. 6 “frumento et pecuniae vectigales, cetera
publicorum fructuum, societatibus equitum Romanorum agitabantur.” Cf.
“societates vectigalium” (xiii. 50).

[2131] ib. xiii. 50, 51.

[2132] _Dig._ 39, 4.

[2133] Plin. _Paneg._ 37.

[2134] _Procuratores_ and _publicani_ are found concerned with the same
taxes in the same province, e.g. _procurator IIII. publicorum Africae_
(_C.I.L._ iii. 3925; Wilmanns 1242), _conductor IIII. p. Afr._ (_C.I.L._
vi. 8588).

[2135] p. 417.

[2136] _Tabularium censuale_ (_C.I.L._ ii. 4248). For the officials
connected with it, called _tabularii_, see Wilmanns _Index_ p. 572.

[2137] p. 323.

[2138] Dio Cass. xlii. 20.

[2139] ib. liii. 14.

[2140] Tac. _Ann._ iii. 32. In A.D. 22 it was determined afresh that
the Flamen Dialis might not leave Italy, “ita sors Asiae in eum qui
consularium ... proximus erat conlata” (ib. iii. 71).

[2141] Dio Cass. liii. 13.

[2142] ib.

[2143] “Salarium proconsulare” (Tac. _Agric._ 42).

[2144] Dio Cass. l.c.

[2145] Tac. _Hist._ iv. 48.

[2146] Tac. _Ann._ iii. 35 (on the outbreak of the war with Tacfarinas in
A.D. 21) “Tiberius ... M’. Lepidum et Junium Blaesum nominavit, ex quis
pro consule Africae legeretur.”

[2147] πάρεδροι (Dio Cass. liii. 14).

[2148] Wilmanns _Index_ p. 553.

[2149] Gaius i. 6. On the changed position of these assistants of the
proconsuls, see Bethmann-Hollweg _Civilprozess_ ii. p. 102; Greenidge in
_Class. Rev._ ix. p. 258.

[2150] pp. 417, 385.

[2151] Except when a colleague was occasionally appointed. See p. 360.

[2152] _Dig._ 1, 21, 5.

[2153] Dio Cassius (lii. 22) attributes this power ἐς μόνον τὸν
ὑπατευκότα ἄρχοντα, i.e. to a _legatus consularis_.

[2154] Dio Cass. liii. 13.

[2155] Wilmanns _Index_ p. 559.

[2156] Tac. _Ann._ i. 80; vi. 39; iv. 18.

[2157] Plut. _Galba_ 4.

[2158] Dio Cass. liii. 13; Tac. _Ann._ i. 80.

[2159] Dio Cass. liii. 23

[2160] Wilmanns 1267; _procurator vices agens legati_ (ib. 1622 _a_). The
title _procurator et praeses_ was also applied to them. The _procurator
vice praesidis_ was an ordinary procurator holding an _interim_ command
for the regular governor of a province (Wilmanns _Index_ p. 568).

[2161] See p. 428; and cf. Tac. _Hist._ i. 11.

[2162] Josephus _Antiq. Jud._ xviii. 4, 2.

[2163] _Leg. pro pr. exercitus Germanici superioris, legato pro pr.
Germaniae super(ioris) et exercitus in ea tendentis_ (Wilmanns 867,
1186). Cf. Tac. _Ann._ vi. 30 “Gaetulicus ea tempestate superioris
Germaniae legiones curabat.”

[2164] Tac. _Ann._ i. 31.

[2165] Tac. _Hist._ i. 11 “Aegyptum copiasque, quibus coerceretur,
jam inde a divo Augusto equites Romani obtinent loco regum: ita visum
expedire provinciam aditu difficilem, annonae fecundam ... domi retinere.”

[2166] Tac. _Ann._ ii. 59 “Augustus ... vetitis nisi permissu ingredi
senatoribus aut equitibus Romanis illustribus, seposuit Aegyptum, ne fame
urgueret Italiam, quisquis eam provinciam claustraque terrae ac maris ...
insedisset.”

[2167] Ulpian (in _Dig._ 1, 17, 1) speaks of his having an “imperium ...
ad similitudinem proconsulis.”

[2168] Tac. _Ann._ xii. 60 “divus Augustus apud equestres, qui Aegypto
praesiderent, lege agi decretaque eorum proinde haberi jusserat, ac si
magistratus Romani constituissent.”

[2169] Cic. _ad Att._ xiv. 12, 1; Tac. _Ann._ xiii. 32; Plin. _H.N._ iii.
30.

[2170] See Mitteis _Reichsrecht und Volksrecht_.

[2171] Cf. Plin. _Epp. ad Traj._ 17 (28), 37 (46), 39 (48), 47 (56), 54
(62), 111 (112).

[2172] The _lex Malacitana_ (the charter of a Latin colony in Spain
founded between 81 and 84 A.D.) contains (c. li.) elaborate provisions
for forcing candidates to come forward for office (Bruns _Fontes_).
Trajan in a letter to Pliny speaks of those “qui inviti fiunt decuriones”
(Plin. _Ep. ad Traj._ 113 [114]).

[2173] See Marquardt _Staatsverw._ i. p. 190; Kuhn _Verfassung des
römischen Reichs_ i. p. 238. Cf. Plin. _ad Traj._ 112 (113) “ii quos
indulgentia tua quibusdam civitatibus super legitimum numerum adicere
permisit.” Contrast with this the principle of admission to local senates
recognised by the _lex Julia Munic._ l. 85 “nei quis eorum quem ...
legito neve sublegito ... nisi in demortuei damnateive locum.”

[2174] _Lex Julia Munic._ l. 135 “II vir(atum) IIII vir(atum) aliamve
quam potestatem, ex quo honore in eum ordinem perveniat.”

[2175] Paulus in _Dig._ 50, 2, 7, 2 “Is, qui non sit decurio, duumviratu
vel aliis honoribus fungi non potest, quia decurionum honoribus plebeii
fungi prohibentur.”

[2176] _Dig._ 50, 2, 1.

[2177] ib. 50, 4, 1, 3 “Illud tenendum est generaliter personale quidem
munus esse, quod corporibus labore cum sollicitudine animi ac vigilantia
sollemniter extitit, patrimonii vero, in quo sumptus maxime postulatur.”
But the two ideas were often inseparable. Hence the recognition of _mixta
munera_ by Arcadius (50, 4, 18). For a complete enumeration of _munera_
see Kuhn _Verfassung_ i. pp. 35 ff.

[2178] _Dig._ 50, 4, 1, 2; 50, 4, 18, 8, 16 and 26.

[2179] ib. 50, 4, 1, 1.

[2180] That coercion was sometimes employed is shown by Tacitus _Ann._
iv. 36 “objecta publice Cyzicenis incuria caerimoniarum divi Augusti,
additis violentiae criminibus adversum cives Romanos. Et amisere
libertatem.”

[2181] Cf. Plin. _Paneg._ 80 “velocissimi sideris more omnia invisere,
omnia audire, et undecumque invocatum statim, velut numen, adesse et
adsistere. Talia esse crediderim quae ipse mundi parens temperat nutu ...
tantum caelo vacat, postquam te dedit, qui erga omne hominum genus vice
sua fungereris.” Boissier (_La Religion Romaine_ i. pp. 206, 207) quotes
a very similar passage from Bossuet, which concludes “qu’il faut obéir
aux princes comme à la justice même; ils sont des dieux et participent en
quelque façon à l’indépendance divine.”

[2182] Dio Cass. li. 22.

[2183] ib. liv. 25.

[2184] Joseph. _Antiq._ xv. 10, 3.

[2185] Suet. _Aug._ 52 “templa, quamvis sciret etiam proconsulibus
decerni solere, in nulla tamen provincia nisi communi suo Romaeque nomine
recepit.”

[2186] Eckhel _Doctrina Numorum_ ii. 466.

[2187] Dio Cass. liv. 32; Rhys _Hibbert Lectures_ pp. 409, 421, 424.

[2188] Tac. _Ann._ i. 57.

[2189] Egger _Examen critique des historiens du règne d’Auguste_ App. ii.
pp. 360-375.

[2190] Mourlot _Histoire de l’Augustalité dans l’Empire Romain_ pp. 29-33.

[2191] Tac. _Ann._ i. 73.

[2192] Thus in 15 A.D. a temple was erected at Tarraco (Tac. _Ann._ i.
78).

[2193] p. 363.

[2194] Suet. _Vesp._ 23 “Prima quoque morbi accessione, ‘Vae,’ inquit,
‘puto, Deus fio.’”

[2195] _Vita Marci_ 18.

[2196] Tac. _Ann._ i. 54.

[2197] See the inscription of Narbonne in Rushforth _Latin Historical
Inscriptions_ n. 35. In this case the _Flaminica_ was the wife of the
_Flamen_, as at Rome; but this was usually not the case in the municipal
towns. See Marquardt _Staatsverw._ i. p. 174.

[2198] Mommsen _Staatsr._ iii p. 455.

[2199] This was the usual type, but there were local variations, and the
relation of _sevir_ to _Augustalis_ was not always the same. In Cisalpine
Gaul we have _seviri et Augustales_, where the ex-sevir retains his
title. In southern Italy _Augustalis_ is used for _sevir_. See Mourlot
_op. cit._ pp. 69-72; Rushforth _op. cit._ p. 64.

[2200] For a “templum et monumentum” in honour of the governor see Cic.
_ad Q. fr._ 1, 1, 9, 26. A temple to Roma was erected by Smyrna as early
as 195 B.C. (Tac. _Ann._ iv. 56).

[2201] Tac. _Ann._ xiv. 31 “templum divo Claudio constitutum quasi arx
aeternae dominationis aspiciebatur.”

[2202] Imperial rescripts to _concilia_ or κοινά are frequent See _Dig._
47, 14, 1; 49, 1, 1; 48, 6, 5, 1. Cf. 1, 16, 4, 5.

[2203] Plin. _Ep._ iii. 4, 2. Where, as in this passage, the _legati_
of a province are represented as making a complaint, they doubtless
represent the _concilium_. In A.D. 62 a _senatus consultum_ was passed
“ne quis ad concilium sociorum referret agendas apud senatum pro
praetoribus prove consulibus grates” (Tac. _Ann._ xv. 22).

[2204] _Cod._ 5, 27, 1 (A.D. 336).

INDEX OF SUBJECTS

(_The references are to the pages_)

References to subjects will also be found in the Index of Latin words.

Administrative functions, of people, 243;
of magistrates, 153;
of Senate and Princeps, 393;
rescripts of Princeps, 379, 380

Adoption, 17, 32

Aediles, 208-212, 246, 365, 368;
curule, 121, 153, 160, 246, 365;
plebeian, 98

Allies of Rome, origin, 299;
status, 305 foll.;
federated, 311

Amalgamation of races, 3

Amnesty, a prerogative of the Senate, 249

Anti-senatorial party, 331 foll.

Appeal, 106, 109, 410;
from the king, 64;
from the consul, 79, 167;
from the dictator, 194;
against fines, 170;
not applicable to tribunician coercion, 168;
nor after decretum ultimum, 279 foll.;
courts of appeal under Principate, 382, 390, 412

Army, 41, 68 foll., 154;
auxiliaries, 307;
controls appointment of Princeps, 359

Augurs, 37, 123

Augury, _see_ Auspices

Auspices, 36-40, 162-167, 172, 196, 257

Autonomy of Roman subject states, 325;
inconsistent with imperium, 329;
its dangers, 324

Ballot, 258

Banausia, 185, 400

Caesar, 141, 142, 198, 201, 235, 248, 249, 314, 315;
nature of his dictatorships, 336 foll.;
his other powers, 337;
a title of the Princeps, 353, 354

Caesar-worship, 440

Capital punishment within the walls, _see_ Appeal;
without the walls, _see_ Jurisdiction, military;
Sempronian law, 281

Caput, 31, 33; _see_ Rights

Censorship, 114-116, 122, 153, 198, 216-233, 347, 374, 430

Census, 347, 430

Centuriate organisation, 70-78

Character, a qualification for public rights, 116, 183

Citizenship, 34, 35, 132-140, 184, 240, 310 foll.;
how conferred, 133, 134, 240, 300, 303, 304;
complete or partial, 300 foll.;
exclusiveness of Roman, 301

City, growth of, 2, 3

Clan, 1, 9-17

Claudian gens, 1, 5, 14, 16

Clientship, 5, 7, 8, 45

Codification, 102

Coercion, a magisterial prerogative, 167-171;
of tribunes, 95, 98;
relation to jurisdiction, 167;
how affected by the ultimum decretum, 279

Colleagueship, 47, 79, 114, 150, 194, 197, 218, 351

Colonisation of Latin league, 297, 300;
a prerogative of Princeps, 345

Comitia, in monarchy, 43;
in early Republic, 88;
in later Republic, 238-260;
in Principate, 371 foll.;
municipal, 423

Commerce, its influence on Roman law, 293

Concilium of the Plebs, 96;
to meet tributim, 101;
its jurisdiction, 100, 107, 254;
its continuity, 149

Conflict of powers, 172-181

Constitution, the Roman, 146, 147, 261, 262;
effect of foreign wars on, 83, 92, 117, 141, 151, 182

Consuls, 78, 112, 153, 196-202;
plebeian, 121;
functions limited by quaestorship, 80;
censorship, 114;
praetorship, 121;
appeal from, 79;
under the Principate, 367

Cooptation of gentes, 13;
in priestly colleges, 124;
in Senate, 373

Corn-supply, 210, 411

Curators, 413 foll.

Curies, 40, 41, 42, 250

Custom, 22, 58, 269

Debt, 90-92, 106, 117, 127

Decemvirate, 30, 104-108

Declaration of war, 56, 290, 344, 372, 376

Delegation, 61, 80, 98, 323, 324, 327, 358, 377, 382, 384, 389,
406

Dictator, 84, 85, 91-195, 336 foll.

Dispensation from laws, 276

Divine right, 45, 77

Domitian law, 255

Economic condition of Italy, 90 foll., 332, 425;
measures of relief under the Principate, 425

Edict, 153, 177, 178, 205;
provincial, 326;
Emperor’s, 342

Egypt, 435

Election, not primitive, 46;
method of appointing Republican magistrates, 78;
of appointing Princeps, 358, 376;
a prerogative of the people, 245, 372;
procedure, 186, 187, 349;
control of Princeps over, 349

Empire, 316, 427;
effect on Roman constitution, 147

Equites, 41, 73, 224, 402;
revision of, 224, 402;
formation of an equestrian order, 225, 404, 415;
their policy, 334, 402;
influence on the Revolution, 333

Exile, 139, 140

Family, 18-23, 140, 226;
the imperial, 356

Federal Government, traces of, 295, 311, 336

Fetiales, 56, 60, 290

Finance, 213, 286;
public finance, 229, 394 foll.;
the Budget, 231, 287, 429;
finance in allied cities, 307, 424;
in provinces, 417, 429;
the fiscus, 395, 416

Fines, 169, 246, 371

Flamens, 52, 53, 189

Fleet, 236

Foreign elements in early Rome, 3, 293;
foreign influences, 4, 209

Foreign policy, controlled by the Senate, 60, 282, 376;
by the Princeps, 372, 376

Forms of law, 56, 87, 128, 205

Franchise, 241;
a gift of the Princeps, 345

Freedmen, 144-146;
freedmen’s vote, 145;
freedmen under the Principate, 414

Germany, administration of, 435

Gracchus, Gaius, 142, 184, 201, 254;
Tiberius, 176, 248

Hereditary succession, 45, 362

Imprisonment, 168

Inauguration, 50

Infamia, 185;
grounds of, 226-228;
effects of, 229

Intercession, 176, 181, 217;
not applicable to censors, 217;
nor to judices, 177

International law, 56, 60, 139, 141, 244, 283, 289 foll.

Interregnum, 47, 48, 83, 147

Italy, organisation of, 285, 422 foll.;
races of, 289

Jurisdiction, civil, 242;
distinction of jus and judicium, 64, 204, 382;
exercised by king and judex, 62;
magistrate and judex, 121, 204, 205, 382;
curule aediles and judex, 210, 211, 369;
by personal cognisance of praetor, 382;
and of Princeps, 382, 419;
by procurators, 416;
by consuls and Senate, 385;
tribune’s intercession, 178, 371, 383, 384, and Appendix

Jurisdiction, criminal, 62, 167;
exercised by king, 62;
by duumviri, 63, 161;
consuls, 86, 199;
aediles, 211, 369;
people, 86, 88, 372;
quaestors, 63, 80, 211 foll.;
praetors, 207;
Senate and consuls, 386, 387;
Princeps, 388;
praefectus urbi, 408, 424;
pr. annonae, 412;
pr. vigilum, 413;
pr. praetorio, 410, 424;
in standing courts, 177, 183, 207, 213, 236, 372, 386, 390;
by special commissions, 239, 278;
tribune’s intercession, 178, 371

⸺ administrative, of consuls, 198;
censors, 232

⸺ capital, 79, 107, 109, 161;
of the people, 245;
on appeal from consuls, praetors, quaestors, curule aediles,
and tribunes, 246;
of Plebs on appeal from tribunes, 100, 107, 161, 168, 246;
and plebeian aediles, 246;
procedure in judicia populi, 246

⸺ domestic, 2

⸺ international, 294 foll.

⸺ military, 63, 76, 79, 84, 85, 108, 151, 155, 279, 328, 389

⸺ municipal, 302, 304, 423

⸺ political, 182, 211

⸺ provincial, 155, 325, 435

Land, public, 89, 90, 117, 229, 286, 413;
tenure, 8, 15, 65-69, 75, 310;
connexion with Servian tribes, 67, 223;
in Italy, 307;
in provinces, 320, 430

Latin league, 295 foll.;
status of Latins, 308

Law, religious, 23, 51-57;
judge-made, 206;
form of a, 242;
influence of Roman law on the Empire, 437

Legates, 434 foll.

Legislation, procedure in, 256 foll.

Legislative powers, of Populus, 5, 42, 239, 377;
limited by magisterial initiative, 43, 88;
by veto, 86, 179;
by encroachments of Princeps and Senate, 372, 377 foll.

⸺ of Plebs, 96-97, 109, 124, 126

Licinio-Sextian laws, 120, 130, 216

Lot, 47, 124, 148, 191, 198, 200, 204, 213, 285, 433

Magistracy, 84, 150, 152-191, 363 foll.;
qualifications, 183;
candidature, 187 foll.;
minor magistracies, 234 foll., 364

Manumission, 133, 134

Marius, 134, 240, 249

Marriage, 17, 39, 111, 136;
intermarriage with foreigners, 295

Martial law, 279

Master of the Horse, 196

Military service, 41, 68-74, 137, 138;
conscription, 154;
cavalry, 41, 73, 225;
pensions, 396

Monarchy, 44, 45-65, 337

Municipal administration of Italy, 304, 305, 313 foll.;
in the provinces, 437

Nobility, in later Republic, 129, 265;
in Principate, 398 foll.

Nomination to office, 47, 78, 98, 191, 245, 360

Pardon, 391

Patria potestas, 18-23

Patricians, origin of, 5;
possess caput, 31;
predominance in early Republic, 86, 87;
alliance with plebeian aristocracy, 129 foll.;
created by Princeps, 347, 399;
special powers of patrician senators, 265, 273, 275

Plebeians, origin of, 5, 6;
generally excluded from clans, 10, 11;
members of Populus, 66;
gradual rise to power, 92 foll., 111, 120, 126, 127;
plebeian law, 17, 28, 29, 104

Political misdemeanours, 181, 182, 227

Pomerium, extension of, 342, 345

Pontifex Maximus, in monarchy, 50, 51;
conducts an election of tribunes, 108;
in Principate, 350, 351, 397

Pontifical college, in monarchy, 50 foll.;
exponents of fas, 54;
of jus, 86;
admission of Plebeians, 123;
election to, 124, 254

Praefects, 394, 396, 401, 406

Praetors, 120, 153, 157, 202-208;
under Principate, 364, 368; _see_ Edict

Priestly orders, 442

Primogeniture, 22, 130

Prisoners of war, 141

Procurators, 414

Prohibition, magisterial right of, 119, 173-176

Property, tenure of, 5, 8, 35;
Servian classification, 69 foll.;
registration by censor, 221-223;
tenure by foreigners, 295

Provinces, 317 foll., 426 foll.;
jurisdiction, 155, 325;
revenues, 231, 286, 417, 429 foll.;
formation, 284, 285;
arrangements of Sulla, 201, 251, 322;
of Gracchus, 180, 201, 322;
of Pompeius, 323;
of the Principate, 345, 401, 428

Public works, 209, 232, 413

Publilian law, 124, 125, 126, 216

Quaestors, delegates of king, 63;
of consul for jurisdiction, 80, 161, 246;
for finance, 81, 155, 178, 394, 432;
in the field, 117, 141;
functions, 212, 216;
no vocatio or prensio, 181;
appointment, 81, 102;
qualifications, 184, 364, 373;
under Principate, 369

Ramnes, 3, 40, 67, 73

Religious ideas, 36, 46, 51, 162, 440;
their connexion with the clans, 16;
international influence of, 56, 289, 291

Religious sanctions, 54, 99, 109

Representation, 312, 443

Rescission of sentences, 248

Responsibility of magistrates, 181, 217

Revenues, 229

Revolution, 332

Rights, 31, 33, 136, 138 foll., 240, 241; _see_ Caput and
Citizenship

Romanisation of provinces, 436

Rotation in tenure of power, 198, 199

Scourging, 168

Senate, 147, 151, 261, 262;
relation to king, 58 foll.;
to consuls and other magistrates, 81 foll., 264, 267;
to Princeps, 348, 359, 362, 376;
powers, 59 foll., 83, 273, 276, 282 foll., 395, 397;
control of legislation and elections, 125, 254, 273 foll., 377;
procedure, 268 foll., 348;
insignia, 265;
revision, 219, 263, 347, 374;
reform attempted by Sulla, 266, 335, 373;
under the Principate, 373;
conscripti, 82;
senatorial order at Rome, 399, 411;
in municipalities, 438.

Servian organisation, 65 foll., 138, 145

Servius Tullius, 58, 62, 138

Slavery, 24 foll., 105, 141 foll.; _see_ Manumission

Solon, 69, 127

Sulla, 146, 180, 183, 189, 197, 202, 204, 207, 213, 221, 234,
253, 254, 266

Taxation, Roman theory of, 319;
direct, 320, 431;
tithes, 321, 431; _see_ Tribute

Testaments, 26 foll., 106, 135, 136, 144, 251, 295

Tities, 3, 40, 67 (priores, posteriores, 73)

Treaties, 56, 60, 139, 244, 283, 291, 345, 372, 376;
commercial, 293

Tribes, original, 3, 40, 41, 66, 67;
Servian, 66 foll.;
Republican, 101, 223, 252

Tribunate, consular, 112-114;
military, 364, 373;
of the Plebs, 93 foll., 108, 365;
inviolability, 99, 345;
power of prohibition, 119, 176;
intercession, 178 foll., 346, 370;
jurisdiction, 168, 169, 371;
relation to the Senate, 161, 179, 371, 375;
to the Plebs, 96, 124, 126, 346

Tribunician power possessed by Princeps, 338, 370

Tribute, from citizens, 41, 75, 137, 138, 222, 303;
from subject states, 319 foll., 430

Triumph, 156-158

Triumvirate (43 B.C.), 338

Twelve Tables, 7, 16, 19, 26, 29, 87, 91, 92, 102, 104 foll.,
111, 126, 161, 205, 241, 281

Valerio-Horatian laws, 108 foll., 124, 126, 236

Varian commission, 175, 248

Vestals, 52, 53

Voting: procedure, 258, 259;
basis of division, 253;
deprivation of right of, 241;
freedmen’s vote, 146;
rights of new citizens, 312

INDEX OF LATIN WORDS

(_The references are to the pages_)

Abductio in carcerem, 168;
in vincula, 168

Abolitio, 392

Abolitiones publicae, 391

Absolve, 205

Accensi, 72, 73, 190, 253

Accusationes, 247

Acta, 363, 366, 374, 379, 381

Actio, de in rem verso, 143;
de peculio, 143;
quod jussu, 143;
tributoria, 143

Actionem dare, 206

Actor publicus, 144

Addictio, 128

Addictus, 91

Adlectio, 365, 373, 374, 399, 438

Adlectus, 82, 365

Adoptio, 17

Adrogatio, 17

Adrogatus, 32

Adscripticii, 72

Adsertor in libertatem, 134

Aedi dedicandae, 237

Aediles, 98;
cereales, 411;
curules, 122

Aedilicii, 265

Aedium sacrarum procuratio, 209

Aerarii, 73, 224, 228

Aerarium, 81, 155, 173, 194, 209, 213, 214, 231, 256, 259, 368,
369, 394, 395, 398, 413;
militare, 396

Aes, 73;
equestre, hordearium, 74, 137;
aes et libram (per), 28, 90, 106

Ager, assignatus, 89;
Campanus, 229;
occupatorius, 230;
privatus, 15;
publicus, 15, 67, 69, 90, 304, 320;
quaestorius, 89, 214;
Romanus, 68, 101, 192

Agere cum patribus, 161;
cum plebe, 96, 161;
cum populo, 158, 160, 161, 246

Agnati, 10, 106

Agris dandis assignandis, 234, 237

Album senatorium, 374

Alieni juris, 33

Alimentarium, 425

Alter ego, 61, 409

Ambitio, 187

Ambitus, 118, 181

Amici, 292, 357

Amicitia, 292

Anquisitio, 246, 248

Antiquo, 258

Appellatio, 177, 346, 382, 384

Applicatio, 9

Aquarii, 209

Arator, 320

Arbiter, 2, 64

Arbor infelix, 63

Area Capitolii, 256

Arquites, 41

Artifices, 282

Arx, 1

As, 69, 137;
libralis, 72;
sextantarius, 69

Assidui, 73

Asylum, 53

Atrium, 129

Auctoritas, 46, 48, 125, 180, 272

Augures, 163

Augustales, 443

Auspex, 39

Auspicatio, 136, 257

Auspicato, 113

Auspicia, 36, 37, 38, 39, 50, 99, 136, 147, 148, 157, 162, 163,
217, 233;
caduca, 163;
coelestia, 164;
ex tripudiis, 164;
majora, minora, 147, 165;
maxima, 165;
privata, 39;
publica, 39, 166

Auxilium, 92, 94, 96, 178, 194, 346, 370, 383

Aves internuntii Jovis, 164

Avocare contionem, 172

Beneficia, 380

Bona caduca, 417;
damnatorum, 395, 417;
fides, 227;
vacantia, 395

Boni, 333

Caduca, 163, 417

Caesar dixit, 379

Calceus mulleus, 265

Calles, 215

Calumnia, 228

Candidatus, 187;
Caesaris, 349

Capite censi, 73, 184, 221

Capitis deminutio, 32, 33, 138, 139, 140

Captus, 53

Caput, 31, 32, 33, 73, 86, 138, 139, 281

Carmen, 57

Castellum, 1

Casus belli, 306

Celeres, 41, 42

Censibus equitum Romanorum (a), 403

Censitor, 430

Censor, 115, 355, 430;
perpetuus, 347

Censoria potestas, 217

Census, 4, 75, 135, 217, 218, 219, 220, 221, 223, 229, 263, 374

Census accipiendos (ad), 430

Centenarius, 418

Centesima rerum venalium, 396, 417

Centumviri, 13, 392

Centuriae, 41, 69, 70, 97;
equitum, 74, 224;
praerogativa, 253

Centuriatim, 89

Cerealia, 211

Certae precationes, 87

Certus ordo magistratuum, 186, 364

Cessio in jure, 135

Cista, 259

Civis, 34, 85, 133, 207, 281, 295, 299, 300, 301, 303;
optimo, non optimo jure, 132, 133;
sine suffragio, 300, 301, 302

Civitas, 6, 14, 133, 134, 139, 140, 273, 277, 300, 301, 309, 310,
311, 312, 313, 317, 428, 436, 437;
foederata, 245, 299, 306, 317, 428;
libera, 245, 306, 317, 428;
libera et foederata, 306, 317;
peregrina, 345;
sine suffragio, 304

Civium capita, 133

Clarissimus, 400, 411

Classici, 73

Classis, 69, 70, 72, 74, 75, 137

Clavi fingendi causa, 193

Clavus annalis, 193

Clientela, 5, 45

Clientes, 9

Coemptio, 17

Coercitio, 95, 98, 154, 167, 170, 171, 173, 178, 181, 190, 191,
199, 210, 211, 246

Coetus nocturni, 107

Cogere, 206

Cognitio, 382, 388

Cognitionem suscipere, 388;
a cognitionibus, 419

Cognomen, 353, 354

Cohortes urbanae, 408

Collega, 360;
major, 193

Collegia, 4, 71, 107, 114, 178, 235, 255, 282

Colonia, 315, 429;
civium Romanorum, 300;
Latina, 296;
maritima, 301

Coloniae deducendae causa, 237

Comites, 324, 357

Comitia, 43, 75, 76, 84, 87, 107, 108, 125, 127, 130, 149, 160,
164, 165, 172, 174, 182, 191, 198, 199, 240, 241, 245, 247,
248, 250, 254, 255, 257, 261, 273, 288, 315, 335, 338, 347,
366, 369, 371, 372, 373, 377, 381, 423;
calata, 26, 27, 251;
centuriata, 27, 88, 89, 97, 102, 103, 112, 115, 125, 145, 172,
195, 196, 216, 224, 244, 246, 248, 252, 259;
curiata, 9, 12, 14, 26, 42, 46, 47, 48, 49, 60, 76, 88, 89,
250, 251, 423;
tributa, 102, 115, 125, 145, 155, 161, 170, 208, 210, 224, 235,
236, 237, 238, 246, 249, 253, 304

Comitiales dies, 255

Comitiatus maximus, 107, 252

Commendatio, 348, 349, 350, 373

Commercium, 22, 33, 35, 295, 296, 304, 308, 310

Communia, 443

Commutatio, 32

Comparatio, 191, 198

Conceptivae, 255

Concilia, 93, 299, 315, 443, 444

Concilium plebis, 93, 94, 96, 97, 98, 100, 102, 103, 107, 109,
110, 115, 126, 127, 145, 149, 161, 170, 172, 210, 221, 224,
237, 246, 250, 253, 255

Concordia ordinum, 333

Condemna, 205

Conductor, 229

Confarreatio, 17, 39

Congruentia, 439

Conjurationes, 279

Consaepta, 258

Conscripti, 82, 83, 315

Consecratio bonorum, 170;
capitis, 55

Consensus, 17, 226

Consiliarii, 410;
Augusti, 420

Consilium, 48, 61, 85, 219, 285, 328, 357, 386, 388, 410, 419,
420, 421;
domesticum, 22;
publicum, 58, 61

Consors imperii, 353, 360

Consortes, 26

Constitutiones principum, 380, 421

Consul, 79, 355;
major, 198

Consulare imperium, 94, 152

Consulares, 265, 269, 271, 365, 384, 423, 433, 435

Consularis potestas, 152

Consultatio, 380, 419

Consultum, 272

Contio, 158, 159, 191, 218, 246, 247, 255, 256, 257, 361;
contionem dare, 160

Contra rem publicam, 277

Conubium, 33, 35, 39, 133, 295, 296, 304, 308

Conventio in manum, 32

Conventus, 327, 328

Cornicines, 71, 253

Corpus Romani juris, 105

Correctores, 424, 425, 428

Creatio, 78, 148

Cultus, 51, 53, 54, 209

Cura, 412, 413;
alvei et riparum Tiberis, 413;
annonae, 210, 368, 411;
aquarum, 413;
legum et morum, 347;
morum, 219, 347;
operum publicorum, 413;
viarum, 413

Curatio, 401

Curatores, 411, 413, 428;
alimentorum, 426;
alvei et riparum Tiberis, 401;
annonae, 237;
aquarum, 401, 413;
operum publicorum, 401, 413;
rei publicae, 424;
tribuum, 221;
viarum, 237, 401, 413

Curia, 6, 15, 40, 41, 42, 43, 49, 59, 76, 88, 93, 97, 101, 102,
196, 222, 251, 255, 259, 315, 399, 438, 441

Curiales, 41, 42, 88, 438, 439

Curiatim, 89, 93

Curio, 42

Cursus honorum, 213, 364, 371

Curules, 270

Custodes, 259

Custos urbis, 407

Damnatio memoriae, 363

Damno, 258

Datio in mancipium, 32

Decemviri, 100, 108, 288;
sacris faciundis, 119, 123;
stlitibus judicandis, 236

Decretum, 379

Decuma, 231, 320, 321, 431

Decumani, 431, 432

Decuriae, 47

Decuriati, 282

Decurio, 315, 438

Dediticia civitas, 306

Deditio, 306

Deditus, 139

Deminutio capitis, 32, 33, 138

Designatus, 189

Detestatio sacrorum, 251

Devotio, 57

Dicere dictatorem, 191

Dico, 258

Dictator, 2, 44, 78, 84, 157, 191

Diem a praetore petere, 161;
dixit, 161

Dies civilis, 165;
fasti, 128, 176, 255;
imperii, 359;
legitimi, 187;
nefasti, 255

Dilectus, 154, 300

Dirae, 163, 172

Diribitio, 259

Diribitores, 259

Discessio, 271

Disciplina, 38

Dispensator summarum, 416

Ditio, 306

Divisores, 188, 282

Divus, 441, 442

Domi, 79, 153, 166, 197

Dominica potestas, 18, 25

Dominium, 24, 26, 144, 352

Dominus, 25, 26, 142, 143, 144, 352, 414

Domus Caesaris, 356

Ducenarius, 418

Duci jubere, 314

Duo Augusti, 353

Duumviri juri dicundo, 313;
navales, 236;
perduellionis, 63, 80, 161, 246, 247;
sacris faciundis, 119;
viis purgandis, 235

Edictum, 177, 378;
provinciale, 207;
perpetuum, 326

Egregii, 405

Elogium, 129

Eminentissimus, 405

Empti, 29

Epistola, 379;
ab epistulis, 414, 418, 419

Epulum Jovis, 124

Equestris militia, 405;
nobilitas, 415

Equites, 73, 138, 196, 224, 253, 265, 333, 334, 335, 347, 356,
402;
Romani equo publico, 74, 184, 402, 404

Equitum census, 225

Evocatio, 57

Execratio, 189, 243

Exercitus, 27, 68, 217

Exheredatio, 30

Exilium, 309

Extra ordinem, 204, 382;
propiusve urbem, 235;
sortem, 200

Fabri, 71, 253

Facio, 71, 253

Facultas agendi, 62

Familia, 10, 12, 15, 18, 21, 23, 24, 29, 32, 88, 91, 140, 143, 145

Fas, 23, 51, 52, 54, 56, 87, 239

Fasces, 44, 48, 80, 355, 443

Feriae, 87, 255, 288

Feriarum constituendarum causa, 193

Fetiales, 56, 245, 290

Fides, 45, 227, 306;
publica, 56;
Romana, 127;
fidei commissa, 367, 382, 385;
fidei commissarii, 368

Filia familias, 32

Filius familias, 30, 31

Fiscalis, 368

Fiscus, 368, 370, 395, 413, 417;
castrensis, 417

Flamen Augustalis, 442;
curialis, 42;
Dialis, 189

Flamines, 51, 52, 131, 251, 443

Flaminica Augustalis, 442;
Dialis, 442

Floralia, 211

Foedera, 60, 283, 299, 306, 317;
aequum, iniquum foedus, 307

Forensis factio, 223

Forma censualis, 430

Formula, 56, 62, 205, 210, 211, 238, 242, 293, 294, 307, 382

Forum agere, 327

Frumentum aestimatum, 321;
emptum, 321;
in cellam, 321

Furiosus, 22

Furtum, 181

Genius, 355, 440, 441

Gens, 1, 5, 10, 11, 12, 13, 14, 15, 16, 17, 40, 41, 67, 101, 130,
222, 251, 294, 295;
gentes majores, minores, 12, 41

Gentilis, 8, 10, 11, 14, 15, 41, 106

Gentilitas, 10, 17, 88

Gradus honorum, 186

Habere auspicia, 38

Haruspex, 196, 397

Heredium, 15, 30

Heres, 8, 15, 27, 29, 30

Honor, 138, 183, 305

Hordearium, 74, 137

Hostis, 6, 249, 279, 281, 290, 292

Ignobilis, 130

Illustris, 405

Imagines, 129

Imminuto jure, 193

Immunitas, 429

Imperator, 60, 154, 156, 283, 292, 331, 337, 344, 352, 353, 355,
359, 361

Imperium, 2, 44, 47, 49, 57, 76, 78, 79, 84, 99, 113, 120, 121,
122, 127, 136, 147, 152, 153, 156, 157, 158, 160, 162, 165,
167, 171, 189, 190, 192, 195, 196, 199, 200, 201, 202, 203,
204, 211, 213, 215, 217, 239, 251, 252, 267, 278, 279, 301,
302, 316, 322, 327, 329, 337, 338, 339, 341, 342, 343, 344,
345, 347, 350, 353, 359, 360, 361, 366, 378, 383, 407, 433, 436

Impetrativa, 36, 162, 163, 233

Impolitia, 225

Improbe factum, 168

Improbi, 333

Incensi, 138, 139

Incivilis potestas, 407

Incola, 309, 311, 315

Infames, 185

Infamia, 221

Infra classem, 70

Ingenui, 5, 135, 136

Ingenuitas, 135, 136, 140, 345, 374, 402

In judicio, 204

In jure, 178, 204, 383

Injuria, 181

Insignia, 4, 43, 44, 45, 99, 113, 233, 265, 342, 355, 366, 402,
443

Intercessio, 156, 173, 176, 178, 274, 346, 370

Intercessionem remittere, 180

Interdictio (aquae et ignis), 55, 140, 249, 254

Interregnum, 47, 48, 59, 82, 83, 131, 147, 148, 149, 166, 187,
188, 275, 358

Interrex, 46, 47, 48, 108, 265, 273

Italici, 305, 308

Judex, 44, 65, 78, 106, 167, 177, 205, 210, 211, 212, 214, 227,
233, 236, 248, 325, 381, 382, 383, 386, 392, 404;
extra ordinem datus, 382, 385;
ordinarius, 382;
peregrinus, 326;
privatus, 64

Judicium, 64, 281, 382;
dare, 206;
legitimum, 302;
ordinarium, 382, 383;
populi, 181, 214, 245, 246, 247;
publicum, 207

Juniores, 70, 154, 252, 253

Jupiter lapis, 291

Jurare, 206

Juridici, 423, 424

Jurisdictio, 302

Jurisperiti, 420, 421

Juris statio, 175

Juris sui, 137, 138, 140

Jus, 52, 56, 62, 64, 65, 86, 113, 136, 138, 239, 378, 382, 383,
386;
agendi cum patribus, 161;
agendi cum plebe, 96, 161;
agendi cum populo, 160, 161, 246;
auspiciorum, 36, 172;
auxilii, 95;
civile, 35, 139, 206, 242, 294, 295, 378, 380;
commercii, 6, 298;
consulendi senatus, 161;
conubii, 7, 298;
divinum, 350;
edicendi, 153;
exulandi, 6;
gentium, 139, 141, 207, 294;
gladii, 389;
honorarium, 206;
honorum petendorum, 183;
imaginum, 129;
Italicum, 307, 429;
liberorum, 433;
multae dictionis, 169;
ordinarium, 424;
poenae, 95;
postliminii, 140;
primae relationis, 342, 348;
privatum, 64;
publicum, 23, 62;
referendi ad senatum, 161;
rogandi, 58;
vitae necisque, 20

Jusjurandum in leges, 366

Jussio principis, 351

Jussu populi, 134

Justitium, 175, 277;
remittere, 175

Justum bellum, 157;
piumque, 56

Justus magistratus, 251

Laesa majestas, 357

Lares, 441

Laticlavii, 265, 399

Latinitas, 297, 308

Latrocinia, 154

Latus clavus, 265, 373, 399, 400, 405

Lectio senatus, 217, 219, 263, 374

Legati, 183, 284, 318, 323, 324, 433, 435, 444;
Caesaris pro praetore, 434;
juridici, 434;
legionum, 364, 434;
proconsulis pro praetore, 433

Leges annales, 186, 350;
de jure magistratuum, 329;
de provinciis ordinandis, 329;
frumentariae, 210, 335;
regiae, 58;
repetundarum, 329;
Valeriae Horatiae, 108

Legibus solutus, 350

Legio, 41, 112, 138

Legis actio, 35, 57, 87, 128, 134, 205, 242, 295

Legitima militia, 154

Legitimum matrimonium, 35

Legitimus dies, 187

Lex, 43, 58, 62, 75, 96, 107, 109, 112, 124, 126, 134, 179, 189,
234, 238, 242, 245, 249, 251, 259, 325, 343, 372, 378;
Aelia, 173;
Aemilia (Mamerci), 115;
Aemilia (Scauri), 145;
Aemilia (provinciae Macedoniae), 318;
annua, 206;
Appuleia, 240;
Aternia Tarpeia, 169;
Baebia, 202;
Caecilia Didia, 239, 277;
Caelia, 258;
Calpurnia de ambitu, 228;
Cassia (104 B.C.), 228;
Cassia (137 B.C. tabellaria), 258;
censoria, 230;
censui censendo, 221;
centuriata, 75, 93, 217, 241;
Cornelia de provinciis ordinandis, 201, 251;
Cornelia de veneficis, 388;
Cornelia Gellia, 134;
Cornelia (67 B.C.), 206;
curiata, 48, 49, 75, 89, 179, 192, 195, 199, 203, 216, 251;
data, 245, 285, 306, 317, 380;
de ambitu (5th century), 181;
de imperio, 343;
dicta, 230;
Domitia, 124;
duodecim tabularum, 104;
Fannia, 308;
Fufia, 173;
Gabinia, 258;
Hieronica, 231, 321;
Hortensia, 126, 132, 162;
imperfecta, 242;
Julia (90 B.C.), 311;
Julia (municipalis), 315;
Julia Papiria, 169;
Maenia, 125;
Marcia, 127;
Menenia Sextia, 169;
Minicia, 133;
minus quam perfecta, 242;
Ogulnia, 51, 123;
Ovinia, 219;
Papiria, 258;
perfecta, 242;
Plautia Papiria, 311;
Poetilia, 127;
Pompeia (de jure magistratuum), 187;
Pompeia (provinciae Bithyniae), 284, 318;
provinciae, 244, 284, 286, 318;
publica, 110;
rogata, 245, 285;
Rubria, 315;
Rupilia, 284, 318;
sacrata, 243;
Sempronia, 180, 201, 322;
Valeria (509 B.C.), 63, 79, 86, 109;
Valeria (300 B.C.), 168, 194;
Voconia, 242

Libellus, 380, 419;
a libellis, 403, 414, 418, 419

Libero, 258

Libertas, 139, 140, 306, 307, 428, 429

Libertinus, 135, 144, 145, 146

Libertus, 144

Libram (per aes et), 28, 90, 106

Libripens, 29

Lictores, 44

Loci sacri, 87

Locupletes, 73

Ludi plebeii, 211;
Romani, 211

Ludorum faciendorum causa, 193

Lustratio, 115, 229

Lustrum, 75, 218, 219, 221, 231

Magister equitum, 84, 196;
Larum, 441;
populi, 44, 78, 84

Magistratus populi, 147, 187, 245, 246;
potestatesve, 315

Magistri Augustales, 441, 442;
vicorum, 441

Majestas, 100, 212

Major potestas, 173, 175, 176, 179, 268, 275, 383

Majores magistratus, 217

Majus imperium, 383, 386

Mancipatio, 28

Mancipatus, 33, 294

Mancipium, 15, 19

Mandatum, 380, 381

Manumissio censu, 135;
inter amicos, 135;
justa, 134;
per epistolam, mensam, 135;
testamento, 135;
vindicta, 134

Manus, 15, 32;
injectio, 91, 127

Mater castrorum, 357;
familias, 31

Matrimonium, 35

Meddix tuticus, 304, 305

Megalesia, 211

Memoria, 419

Mensores, 412

Miles, 41

Militia, 138

Militiae, 79, 153, 155, 158, 197, 199

Ministeria principatus, 414

Minores magistratus, 234

Missio, 404;
in possessionem, 314

Moderator rei publicae, 333

Moenia, 232

Mons sacer, 92

Montani, 2

Montes, 2

Morbus comitialis, 163

Mos majorum, 22, 63

Multa, 169, 170, 210, 211, 232, 371;
suprema, 169, 170, 210, 246

Munera, 45, 136, 138, 232, 303, 400, 404, 439

Municeps, 303, 304, 315

Municipium, 241, 303, 304, 305, 308, 315, 345

Munitio, 137

Naturalis obligatio, 143

Navicularii, 412

Nefas, 278

Nexum, 90

Nexus, 24, 91, 92, 127

Nobiles, 130

Nobilissimus Caesar, 354

Nobilitas, 129

Nomenclator, 183

Nominare provincias, 200

Nominatio, 349

Notae, 220

Novi cives, 312

Novus homo, 130, 335, 362

Noxae deditio, 8, 19

Numen, 440, 441

Nuncupatio, 29

Nundina, 257

Nundinae, 91, 255

Nuntiatio, 163

Obiter dicta, 378

Oblativa, 38, 162, 163, 166, 172, 173, 257

Obnuntiatio, 163, 172, 173, 174, 218

Obsequium, 144

Occupatio, 90

Opera publica, 219, 232, 413

Operae, 98, 137, 145

Optimates, 333

Optimo jure, 34

Oratio, 397

Oratores, 290

Ordinarii, 368

Ordines, 135

Ordo Augustalium, 443;
equester, 224;
sacerdotum, 51

Origo, 400

Ornamenta, 365

Pacata provincia, 157

Paelex, 55

Pagus, 1, 2, 5, 430

Pallium, 305

Paludamentum, 190, 355

Par potestas, 176, 179

Paret (non paret), 205

Parricidium, 213

Pascua, 230

Passus mille, 235

Pastor, 230

Pater, 21, 26, 30;
familias, 10, 21, 23, 30, 45, 59, 115;
patratus, 290, 292;
patriae, 354

Pati quicquam agi, 180

Patres, 5, 10, 40, 46, 48, 59, 66, 77, 82, 111, 113, 120, 136,
147, 149

Patria potestas, 18, 19, 20, 21, 25, 35, 136, 140, 295

Patricii, 148

Patrimonium, 137, 361, 395, 396, 417, 439;
privatum, 395, 417

Patronus, 7, 35, 144, 408

Patrum auctoritas, 46, 48, 59, 83, 97, 120, 125, 131, 275

Peculium, 8, 143, 144

Pecunia, 69, 222;
attributa, 232;
vectigalis, 432

Pecus, 69

Pedarii, 270

Pedites, 226

Penetralia, 128

Perduellio, 8, 99, 106, 181, 191, 258

Perduellis, 363

Peregrinus, 121, 133, 202, 204, 205, 207

Perfectissimi, 405

Perpetua (edicta), 153, 206

Personalia (munera), 439

Piaculum, 54, 87, 106

Pignoris capio, 170

Plebiscita, 94, 97, 109, 110, 118, 123, 124, 125, 126, 158, 159,
176, 179, 186, 217, 219, 234, 239, 245, 248, 249, 254, 255,
277, 308, 372

Plebs, 5, 109;
urbana, 336

Poena, 242

Pomerium, 1, 3, 79, 109, 153, 165, 190, 199, 255, 300, 342, 345

Pons, 258, 259

Pontifex maximus, 47, 50, 51, 52, 54, 108, 251, 351, 354

Pontifices, 16

Populares, 332, 333

Populus, 1, 33, 34, 68, 109, 147, 302

Portitores, 321

Portoria, 230, 321, 432

Possessor, 229, 230, 233, 307

Postliminii (jus), 140

Potestas, 10, 17, 18, 25, 32, 33, 52, 113, 126, 140, 152, 165,
182, 189, 218, 251, 306

Praecones, 190

Praefecturae, 302, 304, 315;
annonae, 412;
morum, 337

Praefectus, 407, 426;
Aegypti, 436;
aerarii militaris, 396;
aerarii Saturni, 394;
annonae, 406, 411;
juri dicundo, 302;
praetorio, 390, 406, 409;
urbi, 61, 161, 406, 413;
vigilum, 406, 412

Praeteriti, 59

Praetexta, 129, 190, 196, 208, 355, 442, 443

Praetor, 2, 44, 78, 203;
peregrinus, 204, 207, 368;
urbanus, 204, 205, 207, 301, 313, 368, 384

Praetorii, 265, 269, 365

Praevaricatio, 228

Precario, 8, 45

Preces, 419

Prensio, 171, 181

Princeps, 123, 351;
civitatis, 333;
juventutis, 356;
senatus, 12, 269, 375

Privatus, 181, 232, 233

Privilegia, 107, 239

Probatio equitum, 404

Procinctu, in, 27

Proconsul, 353, 355

Proconsulare imperium, 335, 340, 341, 343, 353, 360, 361, 433

Procuratio omnium rerum, 414;
rationis privatae, 418

Procurator Caesaris pro legato, 435;
castrensis, 417;
fisci, 416;
patrimonii, 417;
patrimonii privati, 417;
rationis summae rei, 416;
rationum summarum, 416;
summarum, 416

Procuratores, 414, 417, 434

Prodere interregem, 148

Prodigus, 22

Producere in contionem, 160

Professio, 187

Profiteri, 187

Proletarii, 72, 73, 224, 253

Pronuntiatio, 259

Pro praetore, 433, 435

Provincia, 178, 200, 202, 208, 213, 285, 316, 394, 401, 425;
aquaria, 216;
publica, 427

Provocatio, 42, 63, 64, 76, 86, 92, 95, 106, 108, 154, 156, 167,
170, 171, 194, 245, 247, 254, 328

Publicani, 183, 214, 229, 230, 231, 233, 320, 326, 432

Publici fructus, 432

Pugio, 190

Pullarii, 164

Puncta, 258

Quadrata (Roma), 2

Quaestio, 63, 177, 199, 208, 211, 214, 234, 248, 372, 387, 388;
perpetua, 183, 207, 236, 249, 368, 386, 390, 392, 408;
de sicariis, 213, 236

Quaestores aerarii, 80, 212;
alimentorum, 426;
Augusti, 369;
candidati principis, 369, 370;
classici, 215;
parricidii, 63, 80, 106, 161, 211, 212;
pro praetore, 433;
urbani, 80, 213

Quaestorius, 365

Quarta accusatio, 247, 258

Quattuorviri viarum curandarum, 235;
viis in urbe purgandis, 235;
praefecti Capuam Cumas, 236

Quid censes, 260

Quirites, 33, 34, 35, 124

Rationales, 417

Rationibus (a), 414, 416, 417

Recitatio, 259

Recognitio equitum, 224, 225

Recuperatores, 205, 207, 210, 233, 293

Referre, 348

Reges socii, 318

Regimen morum, 116, 217, 219

Regina sacrorum, 51

Regiones, 422

Regnum, 76, 337, 338

Rei gerundae causa, 192, 193

Relatio, 267, 268, 348

Relationem facere, 348;
remittere, 348

Renovatio auspiciorum, 166

Renuntiatio, 188, 189, 259, 351, 372, 373

Repetere auspicia, 166

Res, 24;
censui censendo, 69, 70;
judicata, 379;
mancipi, 69, 137, 222;
nec mancipi, 26;
privata, 396, 417

Rescriptum, 379, 381

Restituere, 249

Restitutio in integrum, 140, 390, 391

Retractatio, 392

Rex, 44, 47, 52, 76, 337, 338;
sacrorum, 44, 47, 50, 51, 131, 251

Rogatio, 97, 109, 111, 125, 174, 177, 179, 180, 204, 238, 247,
248, 256, 257, 277

Rogator, 185, 258, 259

Romam revocatio, 385

Sacer, 38, 55, 99, 109, 154

Sacerdos, 443;
provinciae, 444

Sacra, 16, 17, 42, 54, 55, 226;
privata, publica, 54

Sacramentum, 56, 154, 343, 361, 365;
in leges, 189, 236

Sacrorum detestatio, 16, 17

Sacrosanctitas, 100, 109, 119, 182, 209, 346

Salarium, 433

Salii, 52, 131

Saltus, 230

Salutatio, 357

Saturam (lex lata per), 239

Scribae, 190

Selecti, 325

Sella curulis, 44, 129

Senatoria dignitas, 411

Senatui legendo, 193

Senatus, 34, 58, 315;
auctoritas, 413;
consensus, 413;
consultum, 177, 179, 180, 209, 272, 275;
consultumultimum, 281;
de provinciis ordinandis, 287;
per discessionem facere, 348;
indictus, 375;
legitimus, 375

Seniores, 70, 224, 252, 253

Sententia, 267, 270, 271

Septimontium, 2

Servare de caelo, 172

Servi publici, 144, 190

Servitus, 11

Sestertius, 72

Seviri, 403, 443

Sex centuriae, 74;
suffragia, 74

Sexagenarii, 223, 418

Sex-et-vigintiviratus, 364

Sextantarii, 69, 72

Signa ex avibus, 163;
ex quadrupedibus, 164

Silentium, 163, 165

Silva, 230

Socii, 299, 305, 307, 308, 311

Sodales Augustales, 442

Sodalicia, 107

Sodalitates, 188, 282

Solatium, 142

Soliti honores, 358

Solium, 44

Solum publicum, 413

Solvere, 206

Sortitio, 47, 191, 198, 200, 204, 285, 433

Spectio, 39, 50, 162, 172, 173

Splendidi, 405

Sponsio, 91, 291, 295

Spurii filii, 136

Status, 32, 303, 306, 308, 345

Stemma, 129, 130

Stimuli, 265

Stipendia, 138, 319, 320, 323, 431

Stipendiarius, 307, 318, 428

Stipulatio, 91

Stirps, 10, 11, 12

Sublectio, 220

Subscriptio, 419;
censoria, 221

Subsellia tribunorum, 178

Suffectus, 188, 368

Suffragium, 305

Suis legibus uti, 306

Suovetaurilia, 229

Supplicatio, 288, 380

Susceptio (liberi), 19

Tabellae, 258, 421

Tabernaculum capere, 165

Tabulae, 104, 231;
publicae, 214;
seniorum, 223

Tabularium, 432

Templum, 165, 257

Testamentum, 26, 135

Tibicines, 71, 253

Titulus, 129

Toga picta, 45, 129;
praetexta, 129, 355

Togati, 305, 307

Trabea, 44

Traditio, 294

Traduc equum, 226

Tralaticium, 153, 206

Transitio ad plebem, 7

Transvectio equitum, 403

Trecenarius, 418

Tribules, 68

Tribunal, 443

Tribuni celerum, 41, 196;
laticlavii, 399;
militum, 41;
militum consulari potestate, 112

Tribunicia potestas, 152, 335, 337, 338, 340, 341, 343, 346, 347,
353, 354, 360, 361, 370, 383, 384, 390, 392

Tribunicius, 365

Tribus, 1, 13, 32, 40, 67, 101, 115, 222;
tribu movere, 228, 241;
urbanae, rusticae, 101, 223

Tributim, 101, 109

Tributum, 75, 76, 115, 137, 221, 222, 286, 303, 431;
capitis, 320, 430, 431;
soli, 320, 431

Trinum nundinum, 187

Tripudium solistimum, 164

Triumphalia, 366

Triumviri capitales, 235, 412;
coloniae deducendae, 134;
epulones, 124;
monetales, 235;
nocturni, 235

Tumultus, 175

Turmae, 403

Tutela, 16, 21, 23, 32, 33, 227, 382, 407

Tutelaris, 368

Ultro tributa, 232, 233

Unciarium fenus, 106

Universus populus, 34

Urbana jurisdictio, 203;
provincia, 203

Urbica dioecesis, 423

Usus, 17, 105, 140

Uti rogas, 258

Vades, 169

Vadimonium, 169, 313, 315

Vectigal, 90, 230, 231, 320

Vectigales provinciae, 321

Velati, 72, 73

Velites, 41

Velitis jubeatis, 43, 257

Vende equum, 225

Verba facere, 269

Vestis triumphalis, 355

Viatores, 171, 355

Vice principis, 410

Vicesima hereditatum, 396, 417, 422, 432

Vicus, 1, 2

Vigiles, 412

Vigintisexviri, 235, 304

Vilicus summarum, 416

Vim fieri veto, 206

Vindex, 91

Vindicatio, 134

Vindicta, 134, 350

Vis, 212

Vitio creatus, 166, 250

Vitium, 165, 166

Vocatio, 171, 181

Vota, 57, 87, 355

INDEX OF AUTHORS CITED

I. LATIN AUTHORS

PAGE

ARNOBIUS

iii. 38 57

ASCONIUS

_in Cornelianam_
p. 58 179, 206, 207, 276
59 208
68 277
70 258
76 93, 94
78 228
80 183

_in Milonianam_
p. 32 52, 148
38 235
44 277
47 178

_in orationem in Toga Candida_
p. 84 221
94 400
115 185

_in Pisonianam_
p. 3 309, 314

_in Scaurianam_
p. 22 130

_Schol. in Divinationem_
p. 103 73

CAESAR

_Bellum Gallicum_
i. 33 293
ii. 36 288
iii. 16 141

_Bellum Civile_
i. 7 234
ii. 21 195
iii. 1 185, 248
20 178

CASSIODORUS

_Chronicon_ 317

CATO

_de Re Rustica_
5 143

CENSORINUS

_de Die Natali_
24, 3 203

CICERO

_Brutus_
14, 55 125
20, 79 134
34, 128 248
89, 304 175

_Auct. ad Herennium_
i. 12, 21 214
ii. 28, 45 248

_de Inventione_
ii. 22, 67 206

_de Oratore_
i. 39, 176 11
39, 177 6
i. 40 138
40, 183 135
ii. 47, 195 157
iii. 1, 3 202
1, 4 171

_Oratoriae partitiones_
34, 118 143

_Topica_
6, 29 10

_pro Archia_
4, 7 240, 311

_pro Balbo_
8, 19 240
8, 20 308
8, 21 308, 311
9, 24 307
10, 25 134
11, 28 139, 301
15, 34 283
16, 35 307
21, 48 134, 240
24, 54 308, 309

_Divinatio in Caecilium_
17, 56 327

_pro Caecina_
20, 57 414
33, 95 239
34 138
34, 99 91
34, 100 139, 301
35, 101 240
35, 102 309
39, 97 236

_in Catilinam_
iv. 5, 10 281

_pro Cluentio_
13, 38 235
29, 79 236
33, 91 236
42, 119 185, 228
42, 120 228
43, 120 64
43, 121 228
43, 122 218, 220
48, 134 225, 226
53, 147 208
63 143

_pro Domo_
9, 24 180, 200, 201, 322
13, 35 16
14, 38 131
16, 41 277
17, 45 247
20, 53 239
29, 78 236
31, 82 254, 281
32, 84 220
32, 86 248
35, 94 189
40, 106 239
47, 123 170
47, 124 170
49, 127 288

_pro Flacco_
29, 71 428
32, 80 66, 69, 214

_de Haruspicum Responsis_
8, 15 277
13, 27 209
26, 55 175

_de Lege Agraria_
ii. 7, 8 124
7, 16 234
7, 17 234
7, 18 255
8, 21 185
9, 24 186, 187
ii. 10, 26 49
11, 26 75, 217
11, 28 49
12, 30 179, 251
12, 31 234, 251
19, 50 230
19, 51 230
29, 81 230
34, 93 203

_pro Lege Manilia_
6, 14 320
21, 62 158

_pro Milone_
3, 7 63
9, 24 186

_pro Murena_
7, 16 130
8, 18 215
12, 27 141
20, 42 208

_Philippicae_
i. 13, 32 16
ii. 13, 31 203, 449
23, 56 249
28, 69 226
32, 80 173
33, 82 253
33, 83 172
34, 85 337
38, 99 173
v. 5, 15 214
12, 31 175
17, 48 186
xiv. 4, 11 156
11, 29 288

_in Pisonem_
3, 6 189
4, 9 173, 282
12, 26 191
15, 36 259
16, 37 318
22, 51 315

_pro Plancio_
8, 19 298
11, 28 215
14, 33 175
18, 19 188
20, 49 253
22, 53 258
25, 60 197
28, 69 248

_de Provinciis Consularibus_
2, 3 322
3, 6 318
8, 17 180
15, 37 322
19, 46 173

_pro Quinctio_
7, 29 448

_pro Rabirio_
4, 11 159
4, 12 281
5, 17 328

_post Red. ad Quir._
5, 11 197, 202

_post Red. in Sen. or cum sen. gratias egit_
4, 9 201
7, 17 259
11, 28 259
15, 38 248

_pro Roscio Amer._
35, 100 223

_pro Roscio Com._
6, 16 185

_pro Sestio_
25, 55 282
28, 61 281
31, 68 179
34, 74 179
36, 78 172
37, 79 96
44, 95 212, 446
64, 135 256
65, 137 263

_pro Sulla_
11, 34 189
21, 60 285

_pro Tullio_
16, 38 384, 448, 450
16, 39 448

_in Vatinium_
5, 12 216
7, 18 173
9, 21 169
14, 33 392

_in Verrem_
Actio i.—
4, 11 213
8, 21 208
10, 30 189
12, 36 212
13, 37 152
13, 38 254
Actio ii.—
i. 12, 36 161
13, 34 213, 323
13, 36 323
15, 40 215
33, 84 328, 450
36, 90 215
41, 105 189
42, 109 206
44, 114 206
45, 115 11
45, 117 326
46, 119 178, 206
ii. 3, 7 320
13, 32 318, 321, 325
15, 37 318
16, 39 318
24, 59 318
26, 63 231, 321
29, 70 328
30, 75 328
49, 122 184
53, 133 317
55, 137 317
60, 147 231
iii. 6, 12 231, 321
6, 13 306
6, 14 231
7, 18 231
33, 77 321
58, 134 175, 324
60, 138 385
70, 163 322
73, 170 322
79, 183 214
cc. 81-96 321
89, 207 318
cc. 188-222 321
iv. 9, 20 322
45, 100 327
v. 13, 34 313, 315
14, 36 129, 208, 209, 211
54, 142 203
66, 170 328

_ad Familiares_
i. 1 288
2, 1 271
2, 2 268
9, 25 49, 251, 322
iii. 8, 4 326, 327
8, 5 320, 327
8, 6 327
iv. 12 143
v. 2, 3 208, 285
2, 4 208
2, 7 189
2, 9 271
20, 2 323
vi. 6, 5 352
vii. 30 250, 445, 446
viii. 6, 4 209, 211
6, 5 210
8, 5 272
8, 6 180, 272
8, 8 153
ix. 21, 2 12
x. 12, 3 179, 180
12, 4 179
25, 2 186
xi. 27, 8 337
xii. 1, 1 338
4, 2 322
30, 7 327
xiii. 11, 1 232
11, 3 305, 313
26, 3 385
xv. 5, 2 288
xvi. 12, 3 187

_ad Atticum_
i. 13, 2 269
13, 3 278
14, 1 160
14, 3 272
14, 5 271
16, 8 285
16, 12 282
16, 13 173
17, 9 287
ii. 1, 8 169, 287
ii. 16, 4 286
18, 2 189
24, 3 160
iii. 2 257
15, 5 250, 277
23, 2 243
23, 3 243
24 287
iv. 1, 4 248
1, 6 160
1, 7 411
3, 3 172
9, 1 173, 218
15, 5 199
16, 6 179
16, 7 173
v. 2, 3 314
11, 2 314
16, 2 320
20, 1 327
20, 3 156
21, 6 324
21, 9 327
21, 12 276
21, 13 275
vi. 1, 2 326
1, 15 319, 326, 327
2, 4 319, 326
2, 5 319
6, 4 213
vii. 2, 8 135
viii. 9, 4 352
11, 1 333
15, 3 201
ix. 9, 3 147
15, 2 195
xii. 21, 1 270
xiv. 12, 1 436

_ad Quintum fratrem_
i. 1, 4, 12 324
1, 9, 26 443
1, 11, 33 321
2, 5 328
ii. 3 212, 446
3, 5 282
6, 4 288
6, 5 288
13, 3 284

_ad Brutum_
i. 5, 4 148, 255

_Academia priora_
ii. 30, 97 178, 384, 450

_de Divinatione_
i. 2, 3 52
15, 27 164
16, 28 39
16, 29 172, 227
17, 31 39
58, 132 36
ii. 33, 70 36
33, 71 164
34, 71 163, 166
34, 72 163, 164
35, 73 164
35, 74 164
35, 77 163, 164
36, 76 39, 40

_de Finibus_
ii. 16, 54 199, 213, 240
21, 69 44

_de Legibus_
i. 5, 17 202
ii. 8, 21 37
9, 21 56, 199
9, 22 55
13, 32 36
19, 48 16
22, 55 11
23, 59 105, 205
iii. 3, 6 167, 234, 235
3, 7 208, 209, 219, 222, 226, 232
3, 8 78
3, 9 84, 85, 145, 164, 195
4, 10 160, 161, 195
4, 11 107, 256, 257, 445
9, 22 234
15 258
16 258
16, 36 313
20, 46 213, 259

_de Nat. Deor._
ii. 4, 11 165
iii. 18, 45 136

_de Officiis_
i. 12, 37 292
42, 150 185
ii. 17, 58 130, 210
22, 76 138, 286
iii. 30, 109 283
31, 111 228
31, 112 193

_de Republica_
i. 26, 42 44
40, 62 79
40, 63 84
ii. 8, 14 3, 58
9, 15 61
9, 16 52, 123
12, 23 47
12, 24 45
13, 25 49
14, 26 15, 51, 61, 123
17, 31 43, 44, 46, 49, 56, 57
20, 35 12
22, 39 74, 252
22, 40 72, 252
22, 44 76
24, 45 49
30, 52 77
31, 53 86
31, 54 42, 63, 106, 167, 168, 170
31, 55 198
33, 58 94
35, 60 81, 169, 170
iii. 18, 28 199
iv. 2, 2 225
6, 16 226
12 106
v. 2, 3 45, 64
6, 8 333
7, 9 333

Q. CICERO

_de Petitione Consulatus_
14, 57 188

CODEX JUSTINIANUS
1, 17, 1, 7 343
1, 26, 2 411
1, 43, 1 413
3, 26, 7 416
4, 43, 2 19
4, 65, 4, 1 410
5, 27, 1 444
6, 60, 1 371
7, 18, 1 91
7, 62, 17 408
8, 40 (41), 13 410
9, 2, 6, 1 410
9, 51, 1 393
9, 62, 19 410
10, 40, 8 400

COLLATIO

_leg. Mos. et Rom._
14, 3, 2 408, 410

DIGESTA
1, 1, 7 378, 379
1, 1, 8 205
1, 1, 71 205
1, 2, 2 58
1, 2, 2, 3 87
1, 2, 2, 4 102, 104
1, 2, 2, 6 87
1, 2, 2, 7 128
1, 2, 2, 8 126
1, 2, 2, 18 84
1, 2, 2, 19 84, 195
1, 2, 2, 21 97
1, 2, 2, 22 80
1, 2, 2, 23 80, 106
1, 2, 2, 25 113
1, 2, 2, 27 120
1, 2, 2, 30 235
1, 2, 2, 32 202, 368, 411, 450
1, 2, 2, 33 407
1, 2, 2, 37 128
1, 2, 2, 38 128
1, 3, 9 378
1, 3, 31 350
1, 4, 1 343, 380
1, 6, 9 23
1, 9, 5 400
1, 9, 6 400
1, 9, 7 400
1, 9, 8 400
1, 9, 10 400
1, 9, 11 400
1, 11, 1, 1 410
1, 12 408
1, 12, 1 408
1, 12, 1, 4 408
1, 12, 1, 6 408
1, 12, 3 408
1, 13 43, 63, 81
1, 13, 1, 2 369
1, 13, 1, 4 369
1, 15 413
1, 15, 1 412
1, 15, 3 412, 413
1, 15, 4 413
1, 16, 4, 5 379, 444
1, 16, 8 386
1, 16, 9 416
1, 16, 9, 3 144
1, 17, 1 436
1, 18, 4 386
1, 18, 6, 8 390
1, 19 415, 416, 417
1, 21, 5 434
2, 4, 4, 1 144
2, 4, 10, 3 345
2, 15, 8 397
3, 1, 1, 10 391, 392
3, 11, 5 32
4, 2, 13 379
4, 4, 2 364
4, 5, 2, 1 32
4, 6, 26, 2 152
5, 1, 12, 1 407
5, 1, 58 383
10, 1, 13 107
11, 7, 8 351
12, 1, 40 410
12, 4, 15 413
14, 1, 1, 18 412
14, 5, 8 412
14, 6, 1 378
16, 1, 2, 1 378
19, 2, 56 413
20, 2, 9 413
21, 1 369
21, 1, 1 211
21, 1, 40-42 210
22, 1, 3, 3 410
23, 2, 44 400
24, 1, 23 397
27, 1, 17 429
27, 9, 1 397
27, 10, 1 22
28, 2, 11 26
28, 2, 26 379
29, 1, 1 380
36, 1, 1, 2 378
38, 2, 1, 1 144
38, 2, 3 402
39, 4 432
39, 4, 1 230
39, 4, 12 230
39, 4, 13 230
40, 1, 14, 1 350
40, 4, 11 135
40, 4, 35 135
40, 5, 41, 5 424
40, 10, 6 402
40, 11, 2 345
40, 13, 3 91
43, 29, 3, 4 19
47, 2, 57 (56), 1 413
47, 14, 1 444
47, 21, 3, 1 372
47, 22, 4 107
48, 2, 8 144
48, 2, 13 412
48, 3, 2, 1 391
48, 4, 3 106
48, 6, 5, 1 444
48, 7, 1 185
48, 8, 5 20
48, 12, 1 412
48, 16, 12 391
48, 16, 16 391
48, 19, 2, 1 393
48, 19, 8, 5 408
48, 19, 9, 11 393
48, 19, 15 393
48, 19, 27, 1 390, 393
48, 19, 27, 2 390, 393
48, 22, 6, 1 393
49, 1, 1 444
49, 2, 1, 2 386
49, 15, 7, 1 306, 307
50, 1, 22, 5 400
50, 1, 23 400
50, 2, 1 439
50, 2, 7, 2 438
50, 4, 1, 1 439
50, 4, 1, 2 439
50, 4, 1, 3 439
50, 4, 18 439
50, 15, 3 430
50, 15, 4 431
50, 15, 8, 5 429
50, 15, 8, 7 429
50, 16, 144 58
50, 17, 77 48
60, 17, 133 142

DONATUS

_ad Terentii Adelphos_
iv. 2, 9 172

FESTUS (ed. Müller)
p. 7. Adlecti 82
10. Agonium 51
14. Adscripticii 72
18. Accensi 72
22. Anquirere 246
49. Curia 42
49. Currules 44
53. Centuriatus 15
55. Celeres 42
56. Clavus annalis 193
62. Curionia sacra 42
64. Curiales flamines 42
64. Caduca auspicia 163
66. Duicensus 23
72. Δῆμοι 1
89. Fundus 308
94. Gentilis 10
104. Jurare 53
108. Impolitias 225
113. Inarculum 51
113. Infra classem 70, 71
126. Maximus curio 42
127. Municipium 298, 303, 305
131. Municeps 303
142. Mulleos 265
157. Minora templa 165
161. Majorem consulem 198
182. Oratores 56
185. Ordo sacerdotum 51
198. Optima lex 44, 84, 194
209. Picta 45
210. Pedarius 270
218. Postliminium 318
220. Palatium 2
221. Paribus equis 74
222. Pellices 55
224. Promulgari 256
225. Procincta classis 27
230. Plorare 55
231. Plebeium magistratum 184
233. Praefecturae 235, 236, 302, 304
233. Populi commune 445
241. Patricios 5, 136
241. Praetor ad portam 296
246. Praeteriti 59, 82, 220
254. Qui patres 82
260. Rufuli 155
261. Quinque genera 162
261. Qui hoc censetis 271
274. Reciperatio 294
293. Scita plebei 445
297. Sororium tigillum 55, 63
307. Sororium tigillum 55
308. Supplicia 54
318. Sacer 55
330. Scitum populi 445
333. Scriptuarius ager 230
334. Sexagenarios 223
340. Septimontium 2
341. Septimontium 2
344. Stata sacrificia 226
351. Sinistrum 163
368. Termino 55
368. Urbanas 67

FLORUS

ii. 15 267

FRAGMENTA VATICANA
205 423
232 423
241 423

FRONTINUS

_de Aquaeductibus_
7 287
100 413
104 413
129 446

FRONTO

_ad Amicos_
ii. 7 424

GAIUS

_Institutiones_
i. 3 126
4 378
5 343, 380
6 369, 434
53 355
64 136
78 133
96 345
129 140
130 53
159-162 139
162 32, 140
171 31
ii. 15 24
21 427, 431
101 27
102 28
104 29, 30
274 71
iii. 7 320
40-44 144
72 345
73 345
189 91
210 143
217 143
222 143
223 143
iv. 16 134
23 127
27 74
30 205, 242
69-74 143
93 64
103-105 449

GELLIUS

i. 9 26
12 33, 53
12, 14 33
ii. 2 23
iii. 2 94, 165
18 270
18, 1 271
iv. 2 210
3 23, 55
10 169
10, 8 267, 268
12 225
14 212
v. 6 157
v. 13 8, 227
19, 9 20
vi. (vii.) 9 161
(vii.) 13 70
vii. 9 446
x. 3, 3 310
3, 19 306
6 161, 212
15 53
20 34, 42
24, 3 33
xi. 1 169, 170
xii. 13, 1 382
xiii. 12 94, 171, 447
13 144, 181, 209
15 121, 165, 173
15, 1 256
15, 4 216
16 159
xiv. 7 161, 227, 269
xv. 11, 2 226
27 12, 26, 50, 51, 66, 68,
126, 251, 257
27, 5 250
xvi. 10, 1 205
10, 8 242
10, 10 73
13, 5 345
xvii. 21 97
xx. 1 91, 106

HYGINUS

p. 115 214
176 300

JUSTINIANUS

_Institutiones_
i. 3, 14 91
4 136
12, 5 140
iv. 7 143
8, 7 19
10 8

_Novellae_
78 402

JUSTINUS

xliii. 5, 12 419

JUVENALIS

vii. 228 371, 448

LIVIUS

i. 6 50
7 45
8 44, 59
17 46, 47, 48, 59, 125
18 45, 50
20 51, 52, 54
22 48
24 57, 291
26 42, 55, 63, 80
28 6
30 13
32 33, 48, 56, 57, 60, 291
35 12, 59
36 41, 73, 164
41 48, 49
43 66, 70, 72, 74, 252
44 224, 229
47 46, 48
48 76
49 49, 61, 76
56 45
59 61
60 77
ii. 1 59, 77, 82
2 14
5 45
8 55, 77, 79
16 1, 7, 14
18 84, 192, 196
23 92
27 92
28 93
32 193
33 94, 100, 197
34 95
35 95
41 80
52 154, 247
55 168
56 9, 94, 95, 101, 258
62 1
iii. 3 175
5 175
6 98
9 102
11 103
13 169, 248
20 79, 154
21 258
iii. 24 80, 161
27 175
29 103
30 94
31 98, 103
32 104, 124
34 104, 105
35 104, 185
42 154
53 108
54 51, 108
55 55, 99, 109, 110, 209, 235
57 104
64 259
65 93
69 213
iv. 1 111, 112
2 14, 39, 111
6 111, 112, 113, 256
7 113
8 115, 216
12 114
15 82
16 248
17 192, 291
20 158
21 191
24 116, 218, 222
25 118
26 191, 192
27 196
30 98, 170, 243
31 191
34 195
35 112
41 193
43 117
44 51
48 35
50 179
54 117
55 114, 175
v. 2 114
7 224
12 82, 113
13 113, 258
20 137
31 148, 166, 219
36 291
41 190
vi. 1 148, 183
7 175
vi. 20 66, 256
26 298
27 112
31 118
35 118
36 298
37 119
38 119
41 38, 39, 131, 148
42 120, 122
vii. 1 121, 122
3 193
4 168
5 155
9 175
11 157
12 192
16 125, 241, 256, 446
17 107, 122
22 122, 216
24 193
26 193
27 196
28 193
42 123, 186
viii. 2 306
12 122, 124, 125, 191, 216
14 298, 303, 304
15 121
16 200
18 278
22 212
23 148, 164, 239
28 128
32 196
33 63
34 154, 194
40 193
ix. 7 193
8-12 283
10 139
16 298
20 285
26 192, 279
30 219, 236
33-34 174
34 116, 218
38-39 192
39 166
42 197, 239
43 299, 303, 305
46 126, 128, 145, 184, 185, 223
x. 1 298, 303
6 51, 122
8 5, 11, 136, 216
9 5, 167, 168
10 5
13 186, 212
21 146, 175
22 239
23 17, 161, 212
37 157, 175
42 141
46 141
47 166, 211, 212
xxi. 17 201
63 189
xxii. 8 195
11 146
25 195
26 195
27 196, 200
30 162
34 131
35 259
41 199
42 167
55 204
57 192, 195, 307
61 292
xxiii. 5 305
22 193, 219
23 218, 220
30 211
31 164, 256
32 320
41 210
49 230
xxiv. 7 253
9 79, 203, 204
16 135
18 226, 228
19 304
43 182
44 23
xxv. 1 209
2 161, 179, 212
3 183, 203, 204, 309
4 169, 171, 254, 277
5 255
22 204
41 203
xxvi. 2 183
3 247, 254
6 304
10 210
21 157, 158
22 253
26 180
33 241
xxvii. 5 174, 192, 204
6 179, 211, 253
7 203
8 42
10 307
11 225, 228
19 156
25 228
36 155
38 301
xxviii. 9 157
10 203, 204
38 158, 200, 201
45 154
xxix. 10 288
11 288
12 244
13 203, 204
20 98
22 183
37 217, 226, 228
xxx. 1 200, 203
33 213
39 193
40 180
43 179, 244
xxxi. 5 188
20 158
31 304
50 53, 189, 210
xxxii. 1 203
8 200
27 202
28 203, 204
xxxiii. 21 204
23 157
25 244
42 124, 137, 161, 178, 210, 212
xxxv. 7 308
41 212
xxxvi. 2 322
3 301
36 288
40 180
xxxvii. 1 200
45 306
47 259
xxxvii. 50 204
xxxviii. 35 212
36 241, 313
42 139
52 98
54-60 240
58 214
xxxix. 15 159, 257
18 279
19 226
20 204
29 157
41 279
42 220
44 221, 227, 232, 287
54 306
xl. 1 203, 204
42 47, 50
43 278
44 186, 202
51 232
52 162
xli. 2 226
5 307
8 308, 309
57 220
xlii. 1 310
9 122
10 180, 218
21 157, 199, 204, 240
22 240
31 155, 200, 203
32 178
33 178
35 204
xliii. 2 320
7 183
8 183
11 203
12 155, 200
14 204, 221
16 144, 161, 170, 174, 182,
231, 232, 253
xliv. 16 217, 228, 232, 287
17 197
18 324
xlv. 13 285
15 145, 228, 241
17 284, 318
21 179, 274
26 319
29 319
32 318
35 158

_Epitome_
11 235
19 192, 194
20 202
46 284, 287
48 169
49 216
59 122, 168
69 183
71 311
83 185
84 146, 312
89 123, 192
134 430

MACROBIUS

_Saturnalia_
i. 15, 19 51
16, 6 176
16, 10 55
16, 29 255
ii. 6 210
iii. 9, 7 57
9, 10 57
17, 6 308

_Commentaria in somnium Scipionis_
ii. 17, 13 242

MARTIALIS

v. 8 402

NONIUS
222 14
s.v. _plebitas_ 101 35

OROSIUS

iv. 13 20

OVIDIUS

_Fasti_
i. 317 51
589 339
ii. 21 51
142 352
503 44
iv. 383 399

_Tristia_
iv. 10, 29 399

PAULUS

_Sententiae_
v. 15, 3 144

PLAUTUS

_Capteivei_
i. 2, 111 214
ii. 3, 453 214

_Capteivei: Prologus_
34 141

_Amphitruo_
i. 1, 3 235

PLINIUS

_Historia Naturalis_
iii. 30 436
46 422
88 317
vii. 44 168, 170
xvi. 10, 37 126, 256
xviii. 3 69
3, 11 227
3, 12 55, 106
xix. 4 15
40 431
xxi. 77 431
xxii. 2 291
xxviii. 2, 11 163
xxxiii. 2, 31 259
3 71
78 230
xxxiv. 3, 13 81
6 137

PLINIUS

_Epistolae_
i. 23 370
ii. 11 389
11, 3 ff. 387
iii. 4, 2 444
19, 8 400
iv. 9, 2 391
15, 8 369
vi. 19 374
31, 6 389
31, 8 388
vii. 6, 8 389
18, 2 144
viii. 24 428

_Epistolae ad Trajanum_
13 (8) 351
17 (28) 437
31 (40), 4 393
37 (46) 437
39 (48) 437
47 (56) 437
52 344
54 (62) 437
56 (64), 3 393
57 (65), 1 393
72 345
73 345
79 (83), 1 318
92 (93) 306
96, 4 389
111 (112) 437
112 (113) 438
113 (114) 437

_Panegyricus_
8 360
37 432
64 189
77 367
80 440
84 356

PRISCIANUS

viii. 14, 78 84

QUINCTILIANUS

_Declamationes_
311 91

_Institutiones Oratoriae_
ii. 4, 33 257
iii. 6, 70 385, 450
10, 1 387
vii. 2, 20 387
xii. 6, 1 364

SALLUSTIUS

_Catilina_
6 58
18 187
39 20
50 269, 277, 280
52 271
55 135

_Historiae_
i. frag. 77 308
i. frag. 77 § 22 280

_Jugurtha_
27 200, 201, 322
34 160
39 283
40 240
43 200
62 285
63 130
84 126
86 73
95 130
104 286, 287

SCRIPTORES HISTORIAE AUGUSTAE

_Vita Alexandri_
15 404
16 421
20 357
21 410, 411
26 400
31 419
43 368, 370
49 390
57 425

_Vita Ant. Caracallae_
3 391

_Vita Antonini Pii_
3 423
4 360
6 391
8 407, 425

_Vita Aurelani_
31 397

_Vita Carini_
8 419
16 419

_Vita Commodi_
4 411
6 368, 374
13 419
14 407

_Vita Elagabali_
11 374

_Vita Gordianorum_
11 375

_Vita Hadriani_
6 354, 359
7 375, 387
8 411, 420
18 420
22 414, 423

_Vita Marci_ or _Vita M. Antonini_
6 360
10 368
11 374, 410, 423
18 442

_Vita Maximini_
14 355
15 363

_Vita Nigri_
7 418

_Vita Pertinacis_
9 413
12 418

_Vita Severi_
7 387
12 396
14 409

_Vita Taciti_
1 358
2 359

_Vita L. Veri_
2 354

SENECA

_de Beneficiis_
iii. 11 226
vi. 34, 2 357

_de Brevitate Vitae_
19, 1 412

_de Clementia_
i. 10 357

_Consolatio ad Polybium_
vi. 4 419
5 419

_Controversiae_
ii. 3 226

_Epistulae_
83, 14 407
86, 10 210

_de Vita Beata_
24 134

SERVIUS

_ad Vergilii Aeniidem_
ii. 156 16
iii. 81 52
89 39
v. 560 41
755 300
vi. 190 38
609 8, 55
808 47
vii. 188-612 44
viii. 642 26
xi. 334 44

SOLINUS

i. 15 2

STATIUS

_Silvae_
v. 1 419

SUETONIUS

_Augustus_
2 7, 14
5 386
10 184
27 347
32 392
33 384, 421
35 347, 365, 366, 375, 420
36 394
37 404
38 366, 399, 404
39 227, 404
40 134, 371
46 312
47 428
49 408
52 441
53 352
94 265
97 229
101 395

_Caesar_
1 15
7 327
10 211
11 236
13 187
16 275
17 169
19 215
20 198, 268
23 183
24 139
41 248, 335, 349
48 145
76 337, 353, 407

_Caligula_ or _Gaius_
14 361
15 392
16 404, 429
24 361

_de Claris Rhetoribus_
1 226

_Claudius_
11 363
12 391, 416
14 392
16 225, 403
24 9, 135, 184, 216, 366,
374, 394, 399, 400
25 401, 402, 415, 428, 429
26 39
28 366
38 210

_Domitianus_
2 361
4 369
8 227, 228, 351, 374, 392
9 392
10 399

_Galba_
6 401
7 401
8 401
9 389
17 361

_Julius_
70 34

_Nerva_
15 421
49 363

_Tiberius_
1 7, 11, 14, 16
2 157, 174, 192, 212
26 355
27 355
30 376
31 197
33 383
55 420
58 355
67 363
75 390

_Titus_
6 409

_Vespasianus_
5 209, 369
6 359
8 428
9 374, 403
23 442

TACITUS

_Agricola_
4 415
42 433

_Annales_
i. 1 113
2 339, 346, 427
3 360
7 344
11 429
12 358
i. 14 47, 349, 360
15 349, 372
17 361
31 430, 435
33 430
54 3, 442
57 441
58 360
72 363
73 442
74 375
75 374, 383
76 428
77 370, 379
78 396, 442
80 434
81 47, 349
ii. 6 430
23 159
27 ff. 387
28 388
30 144, 275
33 267
36 401
37 374
38 366
42 387
47 417, 428
50 387, 391
59 405, 436
67 387
79 388
85 210, 369, 397
87 352
iii. 4 374
10 387, 388, 420
14 386
17 374, 375
26 58, 66
27 105
28 338
29 364
32 433
35 433
36 355
44 317
49-51 357
51 390
52-55 210, 369
53 352, 394
56 346, 360
60 376
61 397
66 387
iii. 70 346
71 433
74 156, 366
iv. 5 408, 409
6 402, 414, 432
13 387
15 387, 395, 415
18 434
21 387, 388
27 215
31 374
34 387
35 369, 387
36 440
38 368
42 374, 375
56 443
72 431
v. 8 396
vi. 2 398
10 (16) 407
11 (17) 61, 406, 407
30 435
39 434
47 370, 448
48 374
49 387
xi. 5 405
15 397
22 43, 63, 81, 184, 213, 266,
369, 445
25 82, 133, 348, 374
27 39
xii. 10 376
21 366
23 345
24 2
53 366
59 374, 387
60 395, 416, 436
62 376
63 428
xiii. 1 395
4 385
5 369
10 388
26 145
28 210, 369, 370, 371, 384, 447
29 394
32 436
48 376
50 432
51 230, 432
xiv. 11 344
27 300
31 444
41 387, 408
42 143
46 430
62 420
xv. 22 444
28 373
35 418
72 366
xvi. 8 386, 418
17 366, 405
26 370, 448
34 369

_Historiae_
i. 4 405
11 435, 436
15 350, 361
55 344
58 414
77 351
84 409
90 391
ii. 62 404
91 370, 372
92 391
iii. 58 344
68 367
iv. 9 370
39 375
42 372
45 387
48 433
51 376
74 319

TERTULLIANUS

_Apologeticus_
28 356

_de Spectaculis_
22 185

ULPIANUS

_Regulae_
2 242
2, 4 105
3 243
5, 4 309
5, 8 133
11, 10-13 139
11, 13 140
12, 2 22
19, 1 24
20, 2 27

VALERIUS MAXIMUS

i. 1, 5 163
4, 2 163
4, 3 164
4, 7 163
ii. 2, 7 179, 180
2, 9 145
7, 15 157
8, 1 157
8, 2 167
8, 7 157
9, 1 222, 226
9, 2 23, 227
9, 4 227
9, 5 227
9, 7 225
iii. 8, 3 188
iv. 1, 3 218
1, 10 229
7, 1 281
v. 2, 8 240
8, 2 22
vi. 1, 3 20
1, 4 145
1, 10 235
vii. 2, 6 217
7, 6 121
viii. 1, 7 161
ix. 5, 1 310

VARRO

_de Lingua Latina_
v. 3 292
45 ff. 3
51 33
56 67
80 44
81 41, 63, 80, 84, 93, 98
86 56
87 41
89 41
95 181
143 300
155 255, 284
181 40, 75
vi. 12 51
30 250
86 221
88 78
91 257
92 257
viii. 105 128

_de Re Rustica_
i. 10, 2 15
iii. 5, 18 259

VELLEIUS

ii. 5 27
6 310
7 281
12 124
13 255
14 311
15 310
16 202, 311
20 312
21 249
27 311
35 270
58 249
89 339
94 215
121 360
124 352, 372

VERGILIUS

_Aeneis_
vi. 609 8

VICTOR

_Epitome_
12 425

DE VIRIS ILLUSTRIBUS

72 145, 171, 174

II. GREEK AUTHORS

APPIANUS

_Bella civilia_
i. 7 230
8 142
12 274
21 310
23 296, 309, 310
31 248
34 310
35 311
38 423
49 311, 312
59 253, 254
70 249
74 247
98 45
100 186
102 306
ii. 7 354
13 231
19 197
26
30 268, 271
106 366
112 203
119 77
iii. 30 314
95 249
v. 3 314
4 321
95 338

_Iberica_
83 139

_Syriaca_
15 203
50 431

_Libyca_
69 267

DIO CASSIUS

xxxvi. 21 228
23 207
25 146
xxxvii. 9 314
27 247, 257
28 373
37 255
40 156
50 169
xxxviii. 13 172, 282
14 281
xxxix. 9 411
19 251
39 169
xl. 56 187
66 189
xli. 36 195, 314
43 251
xlii. 6 321
20 336, 432
21 196
23 171, 174, 275
51 123, 202
xliii. 14 337
16 353
27 248
28 407
33 337
44 337, 353
48 210, 394
xlvi. 39 411
45 148
xlvii. 4 355
18 367
xlviii. 12 314
43 369
45 402
xlix. 15 338, 346, 355
43 249
li. 19 346, 355, 382
22 441
lii. 1 339
7 401
15 401
20 364, 365
lii. 21 408
22 389, 390, 434
24 407, 412
25 414
31 401
33 389, 390, 412, 419, 421
43 387
liii. 1 375
2 394
11 409
12 339, 427
13 433, 434
14 432, 433
17 168, 345, 346, 347, 350,
351, 387, 429
21 372, 420
21, 7 47
22 430
23 435
30 402
32 340, 341, 342, 346, 386, 394
liv. 1 411
2 412
3 375
10 342, 365
11 360
12 360
13 375
14 375
17 374, 411
19 365, 407
22 365
24 360
25 441
26 235, 364, 371
30 374
32 365, 441
36 209
lv. 3 375
25 396
26 411
27 420
lvi. 10 71
40 372
42 402
46 367
47 375
lvii. 7 375, 383, 420
8 352, 363
14 413
17 387
lvii. 19 366
20 390
lviii. 9 387
10 387
12 365, 366
20 349, 372
20, 3 47
lix. 6 392
8 356, 384
9 356, 363, 366, 429
12 369
13 407
20 367, 372
24 375
lx. 4 391
11 371
16 375
23 345
24 394, 428
lxii. 3 431
lxiii. 13 404
lxvi. 9 391, 392
lxvii. 2 401
4 347
lxviii. 3 361
5 425
9 376
10 376
29 376
lxix. 16 400
lxxi. 33 395
lxxii. 12 368
lxxiii. 1 359
5 375
lxxiv. 2 387
lxxviii. 13 365, 419
17 348
37 375
lxxx. 1 420

_Frag._
79 284

DIODORUS

xi. 68 94
xx. 46 223
xxxvii. 2 311
5, 2 328

DIONYSIUS

_Antiquitates Romanae_
ii. 6 196
7 15
ii. 9 6, 8
10 8, 55
12 61
14 42, 51, 58, 60, 62
15 18
25 17
26 20, 23
27 20, 23
28 61
29 44
46 13
48 33
57 47, 48
62 61
72 56, 57, 291
74 55
iii. 22 55
29 13
34 296
36 58
51 296
61 44
62 43, 44
iv. 14 40, 66, 68
15 67, 138
18 72
21 252
22 65, 66, 229
25 62, 64
71 61
74 45, 51
v. 1 47
13 14
19 86
40 15
61 298
73 84
vi. 13 403
16 96
45 92
89 99, 189
90 97
91 197
95 295, 296
vii. 13 300
17 96, 100
59 72
64 101
69 143
71 130
viii. 69 296
70 296
72 296
74 296
viii. 77 161
ix. 16 70
17 70
x. 1 102
30 94
31 66, 97
32 66, 97
50 169
58 104
60 102
xi. 43 154
45 109
60 114
63 115, 224
xix. 16 217
xx. 13 226

EUSEBIUS

_Chronicon_
a. 1991 407

HERODIANUS

ii. 12 362, 367
vi. 1 420
vii. 1 418
6 355
6, 4 391, 392

JOSEPHUS

_Antiquitates_
xv. 10, 3 441
xvii. 355 430
xviii. 4, 2 435

_Bellum Judaicum_
ii. 16, 4 431
vii. 6, 6 431

LYDUS

_de Magistratibus_
i. 27 215
38 81

PLUTARCHUS

_Antonius_
12 337

_Caesar_
4 450
13 187
61 337

_Cato major_
3 25
17 227
18 221, 227

_Cato minor_
17 214
38 323
46 258

_Coriolanus_
1 218
13 300
18 98
24 25

_Galba_
4 434
7 361
8 367

_C. Gracchus_
2 185, 213, 225, 227
3 257
4 254, 281
5 310
11 163

_Ti. Gracchus_
7 283
8 230
10 176, 179, 274
14 227, 286
15 51, 58

_Marius_
5 9
24 195
43 249

_Numa_
9 52
10 53
17 69, 71

_Comp. Lyc. cum Numa_
4 31

_Otho_
1 391
9 414

_Paulus_
3 187
38 138, 286

_Pompeius_
22 225

_Publicola_
6 20
7 20, 145
11 82, 86
12 81

_Quaestiones Romanae_
30 17
58 82
103 136

_Romulus_
13 82
22 18

_Sertorius_
4 215

_Sulla_
5 187

POLYBIUS

i. 62 244
ii. 24 224
iii. 22 293
24, 12 6
25 291
29 244
87 192, 193
110 199
vi. 12 198
13 155
14 182, 244, 238
15 158, 182
17 231
19 73, 154
20 224
21 154
23 70, 71
53 45, 129, 217
56 182
x. 4 122
xx. 9, 12 306
xxii. 24 284
xxiv. 9_a_, 1 213
xxx. 4 274
15 141
17 248

STRABO

iii. p. 167 417
v. 3, 1 33
xiii. p. 621 428
xiv. 668 141
840 339

THEOPHILUS

i. 5, 4 135

ZONARUS

vii. 9 82
13 63, 80, 194
15 7

ZOSIMUS

ii. 29 404
iv. 36 351

III. INSCRIPTIONS

CENOTAPHIA PISANA

ii. l. 12 339

CORPUS INSCRIPTIONUM GRAECARUM

2336 431

CORPUS INSCRIPTIONUM LATINARUM

i. p. 25 123
163 313
279 236
312 339
364 189
428 112
434 193
452 337
557 192
no. 196 279
ii. 4248 432
iii. 781 429
1622 417
3925 432
6574 418
v. 737 416
vi. 266 413
895 175
930 342
4416 376
8588 432
10213 372
ix. 2342 350
xii. 5842 418
xiv. 375 423
3608 350

DITTENBERGER

_Sylloge Inscriptionum Graecarum_
no. 240 285

FRAGMENTUM ATESTINUM

l. 10 385
16 450

LEX ACILIA REPETUNDARUM

l. 12 203
72 239
77 309
89 203

LEX JULIA MUNICIPALIS

l. 8 203
12 203
20 209
24 208
29 209
32-45 209
46 209
68 209
73 232
84 315
85 438
89 184
92 184
104 185
120 228
132 188
135 438
145 222
147 222, 227

LEX MALACITANA

c. li. 437
lii. 423

LEX RUBRIA DE GALLIA CISPALPINA

c. 21 314, 315
22 314, 315
23 314

LEX SALPENSANA

c. xxvi. 189

LEX DE IMPERIO VESPASIANI

l. 1 344
3 348
7 348
9 375
10 349
15 345
17 350, 378
22 350

MONUMENTUM ANCYRANUM

(_Latina_)
i. 8-9 338
ii. 5 339
8 339
iii. 5 356
39 396
vi. 13-15 338

(_Graeca_)
iii. 6 411

ORELLI-HENZEN

_Inscriptionum Latinarum selectarum collectio_
946 418
2922 417
3505 417
6396 416
6469 405
6519 410
6525 416

S. C. DE BACCHANALIBUS

l. 5 203
8 203
17 203
21 203
23 158

TABULA BANTINA

l. 12 170

TABULA LUGDUNENSIS

i. 28-35 85, 112, 113

WILMANNS

_Exempla Inscriptionum Latinarum_
no. 637 358
855 355
867 435
883 339
1120 425
1135 394
1145 l. 19 366
1184 358
1186 435
1189 426
1211 426
1215 426
1242 432
1249_b_ 403
1257 403, 417
1259 416
1262 416
1267 435
1269 430
1272 417
1273 417
1275 403, 417
1278 417
1285 417
1286 420
1291 417
1293 417
1595 403
1622_a_ 435
1639 405
1825 403
2110 404
2203 404
2841 405
2844 426
2845 426
2858 405
2868 355

_Printed by R. & R. CLARK, LIMITED, Edinburgh_

*** End of this LibraryBlog Digital Book "Roman Public Life" ***

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