diff options
Diffstat (limited to 'old/65392-0.txt')
| -rw-r--r-- | old/65392-0.txt | 27586 |
1 files changed, 0 insertions, 27586 deletions
diff --git a/old/65392-0.txt b/old/65392-0.txt deleted file mode 100644 index f606e8a..0000000 --- a/old/65392-0.txt +++ /dev/null @@ -1,27586 +0,0 @@ -The Project Gutenberg eBook, Roman Public Life, by A. H. J. (Abel Hendy -Jones) Greenidge - - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - - - - -Title: Roman Public Life - - -Author: A. H. J. (Abel Hendy Jones) Greenidge - - - -Release Date: May 20, 2021 [eBook #65392] - -Language: English - -Character set encoding: UTF-8 - - -***START OF THE PROJECT GUTENBERG EBOOK ROMAN PUBLIC LIFE*** - - -E-text prepared by MFR and the Online Distributed Proofreading Team -(http://www.pgdp.net) from page images generously made available by -Internet Archive (https://archive.org) - - - -Note: Images of the original pages are available through - Internet Archive. See - https://archive.org/details/romanpubliclife00greeiala - - - - - -Handbooks of Archaeology and Antiquities - -ROMAN PUBLIC LIFE - - -[Illustration: Publisher's logo] - - -ROMAN PUBLIC LIFE - -by - -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 - -All rights reserved - - - - -TO - -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 THE PROJECT GUTENBERG EBOOK ROMAN PUBLIC LIFE*** - - -******* This file should be named 65392-0.txt or 65392-0.zip ******* - - -This and all associated files of various formats will be found in: -http://www.gutenberg.org/dirs/6/5/3/9/65392 - - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg-tm electronic works to protect the PROJECT GUTENBERG-tm -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for the eBooks, unless you receive -specific permission. If you do not charge anything for copies of this -eBook, complying with the rules is very easy. You may use this eBook -for nearly any purpose such as creation of derivative works, reports, -performances and research. They may be modified and printed and given -away--you may do practically ANYTHING in the United States with eBooks -not protected by U.S. copyright law. Redistribution is subject to the -trademark license, especially commercial redistribution. - -START: FULL LICENSE - -THE FULL PROJECT GUTENBERG LICENSE -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK - -To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full -Project Gutenberg-tm License available with this file or online at -www.gutenberg.org/license. - -Section 1. General Terms of Use and Redistributing Project -Gutenberg-tm electronic works - -1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg-tm electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg-tm electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the -person or entity to whom you paid the fee as set forth in paragraph -1.E.8. - -1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg-tm -electronic works. See paragraph 1.E below. - -1.C. The Project Gutenberg Literary Archive Foundation ("the -Foundation" or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg-tm electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg-tm mission of promoting -free access to electronic works by freely sharing Project Gutenberg-tm -works in compliance with the terms of this agreement for keeping the -Project Gutenberg-tm name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg-tm License when -you share it without charge with others. - -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg-tm work. The Foundation makes no -representations concerning the copyright status of any work in any -country outside the United States. - -1.E. Unless you have removed all references to Project Gutenberg: - -1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg-tm License must appear -prominently whenever any copy of a Project Gutenberg-tm work (any work -on which the phrase "Project Gutenberg" appears, or with which the -phrase "Project Gutenberg" is associated) is accessed, displayed, -performed, viewed, copied or distributed: - - This eBook is for the use of anyone anywhere in the United States and - most other parts of the world at no cost and with almost no - restrictions whatsoever. You may copy it, give it away or re-use it - under the terms of the Project Gutenberg License included with this - eBook or online at www.gutenberg.org. If you are not located in the - United States, you'll have to check the laws of the country where you - are located before using this ebook. - -1.E.2. If an individual Project Gutenberg-tm electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase "Project -Gutenberg" associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg-tm -trademark as set forth in paragraphs 1.E.8 or 1.E.9. - -1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg-tm License for all works -posted with the permission of the copyright holder found at the -beginning of this work. - -1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm. - -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License. - -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg-tm work in a format -other than "Plain Vanilla ASCII" or other format used in the official -version posted on the official Project Gutenberg-tm web site -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original "Plain -Vanilla ASCII" or other form. Any alternate format must include the -full Project Gutenberg-tm License as specified in paragraph 1.E.1. - -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9. - -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works -provided that - -* You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg-tm trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, "Information about donations to the Project Gutenberg - Literary Archive Foundation." - -* You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg-tm - works. - -* You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work. - -* You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works. - -1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg-tm electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from both the Project Gutenberg Literary Archive Foundation and The -Project Gutenberg Trademark LLC, the owner of the Project Gutenberg-tm -trademark. Contact the Foundation as set forth in Section 3 below. - -1.F. - -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg-tm collection. Despite these efforts, Project Gutenberg-tm -electronic works, and the medium on which they may be stored, may -contain "Defects," such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment. - -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. - -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem. - -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. - -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions. - -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg-tm -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg-tm work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg-tm work, and (c) any -Defect you cause. - -Section 2. Information about the Mission of Project Gutenberg-tm - -Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life. - -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at -www.gutenberg.org - -Section 3. Information about the Project Gutenberg Literary -Archive Foundation - -The Project Gutenberg Literary Archive Foundation is a non profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state's laws. - -The Foundation's principal office is in Fairbanks, Alaska, with the -mailing address: PO Box 750175, Fairbanks, AK 99775, but its -volunteers and employees are scattered throughout numerous -locations. Its business office is located at 809 North 1500 West, Salt -Lake City, UT 84116, (801) 596-1887. Email contact links and up to -date contact information can be found at the Foundation's web site and -official page at www.gutenberg.org/contact - -For additional contact information: - - Dr. Gregory B. Newby - Chief Executive and Director - gbnewby@pglaf.org - -Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation - -Project Gutenberg-tm depends upon and cannot survive without wide -spread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. - -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular -state visit www.gutenberg.org/donate - -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. - -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. - -Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate - -Section 5. General Information About Project Gutenberg-tm electronic works. - -Professor Michael S. Hart was the originator of the Project -Gutenberg-tm concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg-tm eBooks with only a loose network of -volunteer support. - -Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition. - -Most people start at our Web site which has the main PG search -facility: www.gutenberg.org - -This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. - |