(JMD ^|(, 
 
 URIS LIBRARY 
 
DATE DUE 
 
 PRINTED IN U.S.A. 
 
 Roman public life, 
 
 3 1924 012 536 854 
 
The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924012536854 
 
fgattU&oofts of 
 ^rcfjaeologs aitH Antiquities 
 
 EOMAN PUBLIC LIFE 
 
MACMILLAN AND CO., Limited 
 
 LONDON . BOMBAY ■ CALCUTTA ■ MADRAS 
 MELBOURNE 
 
 THE MACMILLAN COMPANY 
 
 NEW YORK ■ BOSTON • CHICAGO 
 DALLAS ■ SAN FRANCISCO 
 
 THE MACMILLAN. CO. OF CANADA, Ltd. 
 
 TORONTO 
 
EOMAN PUBLIC LIFE 
 
 BY 
 
 A. H. J. GREENIDGE, M.A. 
 
 LECTURER AND LATE FEI,LOW OF HERTFORD COLLEGE, AND 
 LECTURER IN ANCIENT HISTORY AT ERABENOSE COLLEGE, OXFORD 
 
 MACMILLAN AND CO., LIMITED 
 ST. MARTIN'S STREET, LONDON 
 
 URISDBRAK ' 
 
 AUG \ 1987 
 
 922 
 
COPYRIGHT 
 
 First Edition igoi 
 Reprinted igii, 1922 
 
 PRINTED IN GREAT BRITAIN 
 
To 
 
 M. 3L. ^. 
 3. E. m. ffi. 
 
 AND 
 
 3. IS. ffi. f^. 
 
PREFACE 
 
 The object of this work is to trace the growth of the Eoman 
 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 under- 
 take. My desire was to touch, however briefly, on all the 
 important aspects of public life, central, municipal, and pro- 
 vincial ; and, thus, to exhibit the political genius of the Eoman 
 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 constitu- 
 tion of, the later Empire was perhaps not strictly "Eoman." 
 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 
 
vm ROMAN PUBLIC LIFE 
 
 ideals of later Eome, 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 under- 
 stood, 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 Bes publica only 
 in the narrowest etymological sense of those words. Perhaps 
 the accession of Diocletian does, after all, mark the close of a 
 true " Eoman " 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. i. a. 
 
 OxFOED, April 1901. 
 
CONTENTS 
 
 ( The references are to the pages) 
 
 CHAPTER I 
 
 the earliest constitution of rome 
 The Growth of the City 
 
 SECZl 
 
 1. Early Italian associations ; the pagus, vicus, gens, 1. Growth of the 
 
 city of Rome, 2. Foreign influences on Eoman life, 3. 
 
 The Elements op the Population— Patrwians, 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. Trans- 
 
 mission of property and forms of testament, 26. Caput, 31. Capitis 
 deminutio, 32. 
 
 The Citizens and the Political Subdivisions of the State 
 
 4. The populus Bomamus, 33. Rights of the citizen, 35. Auspicium, 36. 
 
 The tribes, 40. The army, 41. The curiae, 41. 
 
 The Monabohioal Constitution 
 
 5. Relation of the king to the people, 42. Titles and vnsigma of the king, 
 
 44. Mode of appointment of the king, 45. Religious character of the 
 monarchy, 51. The rule of /as, 52. Civil powers of the king, 67. The 
 Senate of the monarchy, 58. Consilia of the king, 61. Delegates of 
 the king, 61. Jurisdiction of the monarchy, 62. 
 
X KOMAN PUBLIC LIFE 
 
 The Servian Constitution 
 
 BECT. 
 
 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 BEPUBLIOAN CONSTITUTION 
 
 Institution of consuls and limitation of the impervum,, 78. Appoint- 
 ment 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 plebis, 94. The coti- 
 cilium plebis, 96. The aediles of the plebs, 97. The sacroscmditas of 
 the plebeian magistrates, 99. The coneiliv/m plebis meets by tribes, 
 100. Creation of a comiHa 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 tribvmi militum 
 consulwri 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 Horlensia, 124. 
 Results of the tendencies of plebeian emancipation, 127. The new 
 nobility, 129. Continued distinction between the orders, 131. 
 
 CHAPTER ni 
 
 THE CLASSES OP THE POPULATION AND THE THEORY OF THE 
 CONSTITUTION IN THE DEVELOPED REPUBLIC 
 
 Tux Glasses of the Population 
 
 1. Modes of acquiring citizenship, 132. Modes of enfranchisement, 134. 
 
 Ingetmitaa, 135. Eights 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. 
 
 TSB Tbeoby 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 
 
CONTENTS xi 
 
 SECT. 
 
 weakening of the magistracy and the resulting ascendancy of the 
 Senate, 150. 
 
 CHAPTER IV 
 
 the magistracy 
 Oenebal Chabaotebistics of the Magistract 
 
 1. Imperium a.T)A 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. Eight of acting with the plebs, 161. The right of con- 
 sulting the Senate, 161. General powers of the magistrates ; the 
 auspicia, 162. The coercitio, 167. Conflict between the powers of the 
 magistrates ; the obn/umtiatw, 172. The right of prohibition, 173. 
 The intercessio, 176. The civil and criminal responsibility of magis- 
 trates, 181. The qualifications for office, 183. The formalities of 
 candidature and election, 187. The insignia of office, 191. 
 
 The Individual Maoistraoies 
 
 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 magis- 
 trates, 234. 
 
 CHAPTER V 
 
 THE PEOPLE AND ITS POWIIKS 
 
 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 cwriata, 250. The comitia centvHata and its reorganisa- 
 tion, 252. The comitia tributa, 253. The coneilivm, pleMs, 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 appoint- 
 ment of senators, 263. External distinctions of senators, 265. Reforms 
 of Sulla, 266. Rules of initiative and debate in the Senate, 267. The 
 
xu ROMAN PUBLIC LIFE 
 
 SECT. 
 
 senatus consuUum 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 INTBKNATIONAL RELATIONS OF ROME AND THE 
 INOORPOBATION OP 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 ; cmes and socii, 299. Proposals to 
 extend the franchise, 310. Settlement after the social war, 312. In- 
 corporation of Cisalpine Gaul, 314. 
 
 OHAPTEil VIII 
 
 THE OEQANISATION AND GOVERNMENT OP THE PROVINCES 
 
 Origin of provincial government, 316. The conception of a promnda, 
 317. Free and allied cities, 317. Stipendiariae cimtates ; the lex 
 promnciae, 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 RBVOLtTTION AND THE TRANSITION TO THE PBINCIPATE 
 
 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 Priucipate, 338. 
 
 CHAPTER X 
 
 THE PEINOIPATK 
 
 The Powers of the PRmasps 
 
 1. The chief bases of the Prinoeps' authority ; the proconsulare imperium 
 and the tribv/nioia potestas; nature of the imperium, 341. Powers 
 
CONTENTS 
 
 5E0T, 
 
 connected with the imperium, 344. Powers connected with the tri- 
 bunicia potestas, 346. The Princepa as consul, 347 ; as censor, 347. 
 Extraordinary rights conferred on the Princep.9, 348. Dispensation 
 from laws, 350. The Princeps as head of the state religion, 350. 
 
 Titles, Insignia, and Honours of the Prinoeps 
 
 2. Appellatives and titles, 351. Insignia, 355. Other honours, 355. The 
 domus Caesaris, 356. Amid and comites, 357. 
 
 Creation, Transmission, and Abroqation of the Prinoipate 
 
 3. Election of a Prinoeps, 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 Magistraoy, the 
 Cowitia, and the Senate 
 
 m 
 
 4. The magistracy, 363. The individual magistrates, 367. The eorrdtia 
 371. The Senate, 373. 
 
 The Chief Departments of the State; the Dval Control 
 of Senate and Princeps 
 
 The dyarohy, 377. Legislation ; legislative power of the eomitia, 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 juris- 
 diction, 386. The criminal courts of appeal, 390. The power of 
 pardon, 391. The dyarohy in administration, 393 ; in finance, 394 ; in 
 the control of euUus, 397 ; in the control of coinage, 397. The extent 
 to which the dyarohy was a reality, 397. 
 
 The Senatorial and the Equestrian Nobilitt 
 
 6. The senatorial order, 399. The equestrian order, 402, 
 
 The Functionaries of the Prinoeps 
 
 7. The praefeots, 406. Praefectus v/rbi, 406. Praefeetus praetorio, 409. 
 
 Prae/eclus annonae, 411. Praefectus vigilum, 412. The curators, 413. 
 The procurators, 414. Personal assistants ; the imperial secretariate 
 418. The imperial consilium, 420. 
 
XIV EOMAN PUBLIC LIFE 
 
 CHAPTER XI 
 
 ITALY AND THE PKOVINOBS UNDBE THE PRINCIPATE 
 
 The ORaANisATiON OP Italy 
 
 SECT. 
 
 1. Division into regions, 422. The downfall of tlie comAtia, 423. Limita- 
 
 tions on local jurisdiction, 423. Institution of cwratores, 424 ; of 
 eorrectores, 424. The alimentarmm, 425. 
 
 TbE OnGANISATIOJf OF THE PrOVJNCSS 
 
 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 governor- 
 ships, 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 mvmera of their citizens and of the 
 decurions, 439. 
 
 Tbb Worship of the Eupbror 
 
 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 
 
 FAOE 
 
 (i.) of subjects -...,.. 453 
 
 (ii. ) of Latin words . . , . , . .457 
 
 (iii.) of passages from ancient authors referred to in the text 467 
 
SELECT BIBLIOGEAPHY 
 
 1. THE POLITICAL INSTITUTIONS OV EOMB 
 
 Hebzoo, E. — Geschichte vmd System der romiscAen Staatsverfassung. Leip- 
 zig, 1884-91. 
 
 Kablowa, 0. — Somische Rechtsgesehichte, Bd. I. ("Staatsreoht und 
 Rechtsquellen "). Leipzig, 1885. 
 
 Lanqb, L. — Somische AUerthilmer. Berlin, 1856-71. 
 
 Madvxg, J. — Die Verfassung UTid Verwaltwng des romisehen Staates. Leip- 
 zig, 1881-82. 
 
 Mispoulet, J. — Les imstituHons poUtiques des Romains. Paris, 1882-83. 
 
 MoMMSEN, Ta.—Bdmisehes Staatsrecht. Bd. I. ("die Magistratur "), IL 
 Abt. i. ("die einzelen Magistraturen "), II. Abt. ii. ("der Principat"), 
 III. ("Biirgersohaft und Senat"). Leipzig, 1887-88. 
 
 MoMMSEN, Th. — Abriss des romisehen Staatsrechts. Leipzig, 1893. 
 
 RuBiNO, J. — Untersuchungen iiber rom/ische Verfassimg v/nd Oesehiehte. 
 Cassel, 1839. 
 
 Schiller, H. — " Staats- und Rechtsaltertiimer " {Samdluch der Massischen 
 Altertums-Wissenschaft, herausg. von Dr. Iwan von Miiller, Bd. IV. 
 Abt. ii.). Munchen, 1893. 
 
 WiLLEMS, P. — Le droit public Bomain. Louvain, Paris, 1888. 
 
 Zobllek, M. — Somische Staats- v/nd Rechtsaltertwrner. Breslau, 1895. 
 
 2. THE CITY OF ROME, THE MONARCHY AND THE EARLY HISTORY OF ROME 
 
 Bernhoeft, F. — Staat und Becht der romisehen Konigszeit im Verhaltniss zu 
 
 verwandten Bechten. Stuttgart, 1882. 
 Dyer, T. — The History of the Kings o/Bome. With a prefatory dissertation 
 
 on its sources and evidence. London, 1868. 
 Gilbert, 0. — GescMchte umd Topographic der Stadt Bom. Leipzig, 1883. 
 Ihne, W. — "Early Rome, from the foundation of the city to its destruction 
 
 by the Gauls" {Epochs of Ancient History). London, 1876. 
 Lanoiani, R. — Ancient Bome im, the light of recent discoveries. London, 1888. 
 Lanciani, R. — The ruins amd excavations of ancient Bome. London, 1897. 
 
XVI ROMAN PUBLIC LIFE 
 
 Lewis, G. — An inqwiry into the credibility of the early Romom history. 
 
 London, 1855. 
 MiDDLBTON, J. — The remains of ancient Rome. London and Edinburgh, 
 
 1892. 
 Pais, K—Storia di Roma. Turin, 1898-99. 
 PoBHLMANN, E. — Die Anfdnge Roms. Erlangen, 1881. 
 KiOHTBK, O. — Art. "Rom" (Baumeister, A. — Denkmdler des Tclassischen 
 
 AltertuTns). Munchen, Leipzig, 1889. 
 RiTBiNO, J. — Vhtersiichimgen (Abschn. ii. "von dem Konigthume "). 
 
 Cassel, 1839. 
 ScHWBGLKK, A.^ — Romischc Geschichte im Zeitalter des Kamipfs der Stdnde. 
 
 Tubingen, 1853-58. 
 
 3. THE SENATE 
 
 MoMMSEN, Th. — Rdmische Forschwngen, Bd. I. Berlin, 1879. 
 
 Rtjbino, J. — UntersuchwTigen (Absohn. iii. "von dem Senate und dem 
 
 Patriciate"). Cassel, 1839. ' 
 
 WiLLEMs, P. — Ze Sinat de la Bipublique RoTnaine. Louvain, 1883-85. 
 
 4. THE EQT7ITES 
 
 Bblot, E. — Bistoire des chevaliers Rom,ains eonsiderie dans ses rapports ave 
 
 les diffirentes constitutions de Rome. Paris, 1869-73. 
 Maeqtjardt, J. — Sistoriae equitum Romanorum Hiri quattuor. Beriin. 
 
 1840. 
 
 5. THE POPULAR ASSEMBLIES 
 
 BoKGBATJD, C. — Le plebiscite dans V antiquiti. CfriceetRome. Geneva, 1886. 
 HusoHKB, P.' — Die Verfassung des Kmigs Servius Tullius als Grwndlage zu 
 
 einer romischen Verfassungsgeschichte. Heidelberg, 1838. 
 MoMMSBN, Th. — Rdmische Forschungen, Bd. I. Berlin, 1879. 
 KuBiNO, J. — Vhtersuchungen (Absohn. iv. "von den Volksversammlungen ") 
 
 Cassel, 1839. 
 SoLTAU, "W. — Entstehung und Zusammensetzung der altromischen Volks- 
 
 mrsammlimgen. Berlin, 1880. 
 SOLTAU, "W. — Die GiiltigJceit der Plebiscite. Berlin, 1884. 
 
 6. THE STATE DIVISIONS 
 
 Beloch, J. — Der italische Bund unter Roms Hegemonic. Leipzig, 1880. 
 HusoHKB, P. — Die Verfassung des KBnigs Servius Tullius. Heidelberg, 1838. 
 KuBiTSCHBK, J. — De Romanarum tribuum origine et propagatione. Vienna, 
 
 1882. 
 KuEiTSCHBK, J. — Imperium Romanum iributim discriptum. Vienna, 1889. 
 MoMMSBN, Th. — Die romische Tribus m admimistraiiver Beziehung. 
 
 Altona, 1844. 
 
SELECT BIBLIOGRAPHY xvn 
 
 7. ADMINISTKATION TJNDBE THE PEINOIPATB 
 
 CuQ, E. — " Le oonseil des empereurs d'Auguste k DiocUtien" {M4moires pre- 
 sents A I'Acadimie des inscriptions). Paris, 1884. 
 
 HiRSCHFELD, 0. — Vhtersuchungen auf dem Gebiete der romisehen Ver- 
 waltvmgsgeschichte. Berlin, 1877. 
 
 LlBBENAM, W. — Forsahungen zv/r Verwaltungsgesehichte des romisehen Kaiser- 
 reichs. Leipzig, 1888. 
 
 LlBBENAM, W. — Die Laufbahn der Procwratoren Ms auf die Zeit Diocleticms. 
 Jena, 1886. 
 
 8. THE CIVIL AND CRIMINAL OOITRTS 
 
 Bbthmann-Hollwbo, M. A. von. — " Der romisohe Civilprozess " (,Der Ciml- 
 
 prozess des gemeimen Bechts, Bde. I. II.). Bonn, 1864. 
 Geib, G. — Geschichte des romisehen Criminalprocesses bis zum Tode Jus- 
 
 tinians. Leipzig, 1842. 
 Grebnidgb, A. — The legal procedure of Cicero's time. Oxford, 1901. 
 Keller, F. L. von. — Der romische Civilprozess und die Actionen. 5te 
 
 Ausg. bearbeitet von Adolf Wach. Leipzig, 1876. 
 MOMMSBN, Th. — Riimisches Strafrecht. Leipzig, 1899. 
 PuNTSCHART, V. — Die EntwicMv/ng des grundgesetzlichen Civilrechis der 
 
 Bomer. Erlangen, 1872. 
 RiTDORFF, A. — BSmische Bechtsgeschichte, Bd. II. Leipzig, 1859. 
 Wlassak, M. — E'&mische Proeessgesetze. Eim, Beitrag zur Geschichte des 
 
 Formula/rverfahrens. Leipzig, 1888-91. 
 Wlassak, M. — Sdict und Klageform. Jena, 1882. 
 ZuMPT, A. — Das Orvminalrecht der romisehen EepubliTc. Berlin, 1865-69. 
 
 9. private and criminal law 
 
 Ctrcj, E. — Les institutions juridiqu^s des Eomams. Paris, 1891. 
 OzTHLARZ, C. VON. — Leh/rbuch der Institutionen des romisehen Bechts. 
 
 Prague, Vienna, Leipzig. 1895. 
 GiRAUD, 0. — Sistoire du droit Bomain ou introduction historique a I'Uude 
 
 de cetle legislation. Paris, 1847. 
 Goodwin, 'P.— The Twelve Tables. London, 1886. 
 Ihering, R. von. — Geist des romisehen Bechts auf den verschiedenen Stufe 
 
 seiner UntuncMung. Leipzig, 1877-83. 
 Kaklowa, 0. — Bomisehe Bechtsgeschichte. Leipzig, 1886. 
 Laboulayb, E. — Essai sur les lois criminelles des Bomains concernant la 
 
 responsibility des magistrals. Paris, Leipzig, 1845. 
 MiTTEis, L. — Beichsrecht und Vollcsrecht in dem ostlichen Provinzen des 
 
 romisehen Kaiserreichs. Leipzig, 1891. 
 MoMMSEN, Th. — Bomisches Strafrecht. Leipzig, 1899. 
 MciRHEAD, J. — Historical introduction to the private law of Borne. Second 
 
 edition revised and edited by H. Goudy. London, 1899. 
 
xviu ROMAN PUBLIC LIFE 
 
 Ortolan, E. — Mistoire de la Ugislation JRomaime. 1884. 
 
 Ortolan, E. — Explication historique des vastituts de I'empereur Justinien. 
 
 Paris, 1851. 
 Rein, W. — Das Criminalrecht der Homer von Hamulus bis auf Justimiamus. 
 
 Leipzig, 1814:. 
 RoBT, H. — An introduction to the study of Justinian's Digest. Cambridge, 
 
 1886. 
 EuDORFF, A. — JRomische Bechtsgeschichte. Leipzig, 1857-59. 
 SoHM, R. — TJie institutes of Soman law. Translated by J. 0. Ledlie, with 
 
 an introductory essay by E. Grueber. Oxford, 1892. 
 VoiGT, M. — Die zwolf Tafeln. Oeschichte und System des Civil- und 
 
 Criminal -Bechtes, wie Processes der XII. Tafeln nehst deren Fragm^nten. 
 
 Leipzig, 1883. 
 VoiGT, M. — Somische BechtsgescMchte. Leipzig, 1892. 
 ZuMPT, A. — Das Criminalrecht der romisehen Bepublik. 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 Mallb, A. — Economie politique des Bomains. Paris, 1840. 
 
 Makquardt, J. — Bomische Staatsverwaltwng, Bd. II. 2te Aufl., besorgt 
 von H. Dessau und A. Ton Domaszewski. Leipzig, 1884. 
 
 11. SOCIAL CONDITIONS 
 
 Fbibdlander, L. — Darstellungen aus der Sittengeschichte Boms in der Zeit 
 
 mm August his zum Ausgang der Antoriine. Leipzig, 1888-89-90. 
 Ingram, J. — A history of slavery and serfdom (ch. iii.). Loudon, 1895. 
 Marquardt, J. — Das Privatleben der Bomer. 2te. Aufl., besorgt von A. 
 
 Mau. Leipzig, 1886. 
 VoiGT, M. — " Privataltertiimer und Kulturgeschiobte " (Eandbuch der 
 
 klassischen Altertums- Wissenschaft, herausg. von Dr. Iwan von MiiUer 
 
 Bd. IV. Abt. ii.). Miinohen, 1893. 
 Wallon, H. — Sistoire de I'esclavage dans I'antiquiti. Paris, 1879. 
 
 12. THE GUILDS 
 
 CoHN, M. — Zwm romisehen Vereinsreeht. Berlin, 1873. 
 
 LiEBENAM, W. — Zur Geschichte und Organisation des romisehen Vereins- 
 
 wesens, drei Untersuchungen. Leipzig, 1890. 
 MoMMSEN, Th. — De collegiis et sodaliciis Bomanorum. Kiel, 1843. 
 Waltzing, J. — Etude historique sur les corporations professionelles ehez les 
 
 Bomains depuis les origines jusqu'd, la chute de I' Empire d' Occident. 
 
 LouVain, 1895-99. 
 
SELECT BIBLIOGRAPHY xix 
 
 13. BBLIGIOUS OROANISATION IN ITS POLITICAL ASPECT 
 
 Bbueliek, E. — Sssai sur h culte rendu aux Empereurs Jioma/ins. Paris, 
 
 1890. 
 BoissiBR, G. — La religion Romaino d'Auguste aux Antonins. Paris, 1874. 
 BoiTCHt-LECLEKCQ, A. — Les pontifes de I'ancienne lioine. Paris, 1871. 
 GuiKAUD, P. — Les assemblies provinciales dans V Empire Eomavn. Paris; 
 
 1887. 
 Makquardt, J. — "De provinoiarum Eomanarum oonoiliis et sacerdotibus " 
 
 {Ephemeris Epigraphica, vol. i. pp. 200-14). 
 MouRiOT, F. — Essai sur I'kistoire de I'AugustaliU dans I'empire Somain, 
 
 Paris, 1895. , 
 
 14. THE MUNICIPAL TOWNS 
 
 KuHN, E. — Die stddtische wnd bii/rgerliche Verfassung des romisehen Beichs 
 
 bis aufdie Zeiten Juslinians. Leipzig, 1864-65. 
 LiBBENAM, W. — Stadteverwaltung im romisehen Kaiserreiahe. Leipzig, 1900. 
 MoMMSEN, Th. ' — "Die Stadtreehte der latinischen Gemeinden Salpensa 
 
 und Malaca in der Provinz Baetioa" {Abhandlungen der philologiseh- 
 
 Mstorisehen Glasse der kdniglich sdchsiscAen Gesellschaft der Wissen- 
 
 aekaften, Bd. II.). Leipzig, 1857. 
 
 15. THE PROVINCES 
 
 Arnold, W. — The Roman system of provincial administration to the accession 
 of Constantine the Great. London, 1879. 
 
 Marquakdt, J. — Romische StaatsverUialtung, Bd. I. Leipzig, 1881. 
 
 MoMMSEN, Th. — The provinces of the Roman Empire from Caesar to Dio- 
 cletian. Translated by William P. Dickson. London, 1886. 
 
 16. SOURCES AND DOCUMENTS 
 
 Bruns, C. — Pontes juris Momani Ofntigui. Freiburg, 1893. 
 KiPP, Th. — Quellenkunde des romisehen Bechts. Leipzig, 1896. 
 
 17. INSCRIPTIONS 
 
 Corpus Inscriptionum Latinarum. Berlin. 
 
 Inscriptiones Regni Neapolitani, ed. Mommsen. Leipzig, 1852. 
 
 MoMMSBN, Th. — Res gestae dim Augusti ex monmmentis Ancyrano et 
 
 Apollomensi. Berlin, 1883. 
 Orblli-Hbnzbn. — Inscriptionum Latinarum selectarum collectio. Ziirich 
 
 1828-56. 
 Peltier, C. — Res gestae dim Augusti. Paris, 1886. 
 WiLMANNS, G. — Exempla inscriptionvmi Latinarum. Berlin, 1873. 
 Dessau, H.—Inscriptiones Latinae Selectae, vp\. i. Berlin, 1892. 
 
XX ROMAN PUBLIC LIFE 
 
 18. DICTIONARIES OF ANTIQUITIES CONTAINING ARTICLES ON ROMAN 
 CONSTITUTIONAL LAW 
 
 Dakemebrg-Saglio. — DicHonnaire des antiquiUs Grecques et Bomaines 
 
 (A to Lib). 1875, etc. 
 Fault. — Eml-Encyclopadie der classischen AUerthumswissensehaft. 6 Bde. 
 
 Stuttgart, 1839. 
 Fault- WissowA. — Seal-Encyclopddie, 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 
 
 DURUT, 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. F. 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 romischen Kaiserreichs (Oncken, W. — 
 
 Allgemeine Geschichte, Hauptabth. 2, Thl. 1). Berlin, 1880. 
 How (W.) and Leigh (H.). — A history of Rome to the death of Caesar. 
 
 London, 1896. 
 Ihnb, W. — Romische Geschichte. Leipzig, 1868-90. 
 Long, G. — The decline of the Roman Republic. London, 1864-74. 
 Merivalb, C. — History of the Romans under the Empire. London, 1875-76. 
 Mommsbn, Th. — TJie history of Roine. Translated by "W. P. Dickson. 
 
 London, 1894. 
 NiBBUHR, B. — Romische Geschichte. Neue Ausgabe von M. Isler. Berlin, 
 
 1873-74. 
 NiBBUHR, "B.— History of Rome. Translated by Walter (F.), Smith (W.), 
 
 and Schmitz (L.). London, 1827-44. 
 Felham, H. — Outlines of Roman History. London, 1893. 
 Fetbr, C. — Geschichte Roms. Halle, 1881. 
 Rankb, L. YOS.—Weltgeschichte. Thl. II. ("die romische Republik und 
 
 ihre Weltherrschaft "). Thl. III. ("das altrbmische Kaiserthum "). 
 
 Leipzig, 1883. 
 Schiller, H. — Geschichte der romischen 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"^ — an ethnic or, at 
 least, a tribal unit, which is itself composed of a number of 
 hamlets {vici, oIkov). This district with its group of villages 
 perhaps represents the most primitive organisation of the Italian 
 peoples engaged in agriculture and pastoral pursuits.^ The 
 pagus seems to resemble the tribe (tribus) of the fully formed 
 city-state,^ 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 p(igus. The clan is sometimes pictured as wandering 
 alone with its crowd of dependants.* 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 
 
 ' Pagus (connected etymologically with vifyvvm, pago, pango) implies the 
 idea of " foundation" or "settlement." 
 
 ^ Cf. Liv. ii. 62 "Inoendiis deinde non villamm modo, sed etiam vicorum, 
 quibus frequenter habitabatur, Sabini exoiti." 
 
 ' So Servius TuUius is said, according to one account, to have divided the 
 territory of Rome into twenty-six^ajri. Pagus is Sij/ios 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 drj/ios or Sa/ios in Greece had often been (as in Elis) a self- 
 existent community. 
 
 * Liv. ii. 16, Yet even here the Claudia gens is represented as expelled from 
 a civitas. 
 
 S> B 
 
2 KOMAN PUBLIC LIFE CHAr. 
 
 slight at first, and may often have been based merely on the 
 possession of some common shrine. Much of the civU and 
 criminal law was administered within the family in the form 
 of a domestic jurisdiction which survived in historical Eome; 
 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 Eome, to which we are earned 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;^ the bounds of the oldest pomerium were 
 known in later times to have been the Limits of this site,^ and 
 traces of the tufa ring-wall may yet be seen. From this centre 
 the city spread in irregular concentric circles.^ Traces of ritual 
 have preserved a memory of a city of the seven hills (Septi- 
 montium) — 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,* 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 
 
 ' The ancients derived Palatine from the balare or palare of cattle (Festus 
 p. 220) or from the shepherd's god Pales (Solinus 1. 16). It is perhaps derived 
 from the root pa (pasco). See 0. Gilbert Oeschichte u. Topograpkie der Stadt 
 Rom in Altertum i. p. 17. 
 
 ^ Tac. Ann. xii. 24. 
 
 ' This tendency is best exhibited in Eiohter's map sho-wing the extension oi 
 Rome (Baiimeister DenTemiUer art. " Rom " Karte v.). ' 
 
 * Festus pp. 340, 341. See Gilbert Topographie i. pp. 38, 162. 
 
r THE GROWTH OF THE CITY 8 
 
 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 Eome was 
 reached, and that what is known as "the Eome of the four 
 regions " survives in the sites associated with the chapels of the 
 Argei,^ and is preserved in the administrative subdivisions of 
 the city to the close of the Eepublic.^ 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 o'f Servius 
 Tullius, a fortification extending beyond the limits of the true 
 pomermm, 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 Eepublican Eome. 
 
 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 Titles (or Titienses) were supposed to be Sabine,^ the 
 Eamnes (or Eamnenses) Eoman ; 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 Eoman king,* and, when we remember the arbitrary applica- 
 tion in the Greek world of tribe-names that had once been 
 significant,^ we may hold it possible that the great o-ui/owcicr/^os 
 
 1 Varro L.L. v. 45 ff. 
 
 " i.e. in the four city trites — Palatina (Palatine, Cermalus, Velia), Ssquilina 
 (Oppius, Cispius, Pagutal), Suhu/rana or Sucusana (Coelius, Subura), Gollma 
 (Quirinalis, Viminalie — a region outside the old Septimontium). See Belot 
 Histoire des Chevaliers Romains i. p. 401 . 
 
 ^ The Sahine origin of the Titles rested perhaps on the Sabine sacra of the 
 sodales Titii (Tao. ATi/n. i. 54). Cf. the Thracian origin ascribed to the Eumolpidae 
 at Athens on account of the character of their cult. 
 
 * Cic. de Rep. ii. 8, 14 "populumque et suo et Tatii nomine et Lucumonis, 
 qui Eomuli socius in Sabino proelio ocoiderat, in tribus tris . . . discripserat. " 
 
 ' e.g. the manner in which the Ionic tribe-names were imposed at Athens after 
 their primitive signification had been lost. 
 
4 ROMAN PUBLIC LIFE chap. 
 
 • 
 typified by the name of Romulus was not accompanied 
 by any large alien intermixture with the primitive Latin popu- 
 lation. 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 ; ^ 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, con- 
 tact 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 Ohalcidian 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 civilisa- 
 tion 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 
 
 ' Cf. Niese Grundriss der rSm. Gesch. pp. 20 sq. 
 
I THE ELEMENTS OF THE POPULATION 6 
 
 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 Eoman 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 ^ 
 — 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 Eome. Such men alone could 
 be partners in the true ownership of property, or sue and be 
 sued in their own right,^ and such an exclusive right to a full 
 personality in private law they claimed in virtue of their public 
 services or privileges — the duty of taking the field on horseback 
 or in heavy armour, the right of uplifting their voices in the 
 assembly when they acclaimed a king or ratified a law. 
 
 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. ^ It is possible that, in a very primitive stage of Roman 
 history, these Plebeians may all have been in the half-servile con- 
 dition of clientship ; but, even when the earliest records of Eome 
 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 Eome without 
 subjecting himself to the degradation of dientela. 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 
 
 ' Cincius ap. Festam p. 241 " Patrioios Cincius ait in libro de comitiis eos 
 appellari solitos, qui nunc ingenni vooentur." 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 auspioium domi 
 militiaeque "; § 10 "en unquam fando audistis, patrioios primo esse faotos non de 
 ooelo demissos sed qui patxem oiere possent, id est nihil ultra quam ingenues ? " 
 
 " Mr. Straohan-Davidson remarks (Smith Diet, of Antiq. ii. p. 354) that, on 
 the evolution of the rights of the plebeians, these too should have been patrieii, 
 but that the vtoid patricias survived as a "token of an arrested development." 
 
 ^ Plebs is connected with the root which appears in compleo, impleo, ttXtjOos. 
 
6 ROMAN PUBLIC LIFE ohAp. 
 
 stronger by a willing vassalage, which ripened, when the sta,te 
 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 Eome. The annalists, indeed, represent such men as being 
 received into the citizen body, and as becoming members of 
 the tribe and the curia/''- but it is probable that in the pre- 
 historic 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.^ 
 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 jm commercii with that state, and by the exercise 
 of the right of voluntary exile from his native land (Jm 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.^ 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 ; * but, if he did not, he 
 was in the chief aspects of private law a perfectly free man, and 
 
 ' Liv. i. 28 "populum omnem Albanum Eomam traduoere in animo est, 
 oivitatem dare plebi, primores in patres legere." Dionysius (ii. 35) represents 
 the people of Caenina and Antemnae as being, after their subjection, enrolled 
 ch (pv\ds Kctl ^pdrpas. 
 
 ' Cf. Dionysius' account of Eomulus' institution of clientship (ii. 9 irapaKara- 
 9-/iKa^ Si ^dioKe tols TrarptKiois rods drffiOTLKoOs, ^Trtrp^^as ^Kdartfi . , . 6v airbs 
 ^/SoiJXero vip-eiv irpoaTdrrjV . . . iraTpwvdav bvopAaas t^v irpoaTaffiav), 
 
 ' 'She jus commercii has been read into the relations of Eome Trith Carthage as 
 depicted in Polybius' second treaty [Polyb. iii. 24, 12 ii> StKe\l<f, ^s Kapx>iS6vioi 
 irdpxovn, Kal h ^apxijSbvi irdvra Kal Troieiru Kal TruXelru (the Roman) Sira 
 Kol T^J iroKlrp (the Carthaginian) l^eanvj. 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 Eome. 
 
 * Cicero shows that there was a controversy whether applicatio was consistent 
 with emilium {de Oroct. i. 39, 177), "Quid? quod item in centumvirali judicio 
 certatum esse accepimus, qui Eomam in cxilium venisset, cui Eomae exulare jus 
 
I THE ELEMENTS OF THE POPULATION 7 
 
 illustrated a status to which the quondam-client must from an 
 early period have tended to approximate. Where the right of 
 intermarriage {jus conuhii), 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 inter- 
 marry 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.'- Adoption from a patrician into a 
 plebeian family produced the same result. 
 
 That the clientship of which we have spoken was not 
 peculiar to Eome, but was an old established Italian institution, 
 is a truth reflected in the legend of the gens Claudia which 
 moved from Eegillum to Eome with a vast multitude of 
 dependants.^ 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 
 
 esset, si se ad aliquem quasi patronum applicavisset intestatoque esset mortuus, 
 nonne in ea causa jus applicatiouis, obscurum sane et ignotum, patefactum in 
 judioio atque illustratum est a patrono ? " 
 
 ' 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 Ootavii, Suet. Aug. 2 "Ea gens a Tarquinio Frisco rege inter 
 minores gentes adleota . . . mox a Servio TuUio in patricias transducta, pro- 
 oedente tempore ad plebem se oontulit." 
 
 2 Liv. ii. 16 (504 B.C.) "Attus Clausus (driven out from Eegillum) magna 
 olientium comitatus manu Eomam transfugit. His civitas data agerque trans 
 Anieuem . . . Appius inter patres (i.e. the Senate) lectus baud ita multo post in 
 principum dignationem perveuit." Cf. Suet. Tib, 1. 
 
8 ROMAN PUBLIC LIFE chap. 
 
 of the family. .Such property as he possessed may have been 
 merely a pecuHum, 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 Eoman 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 ; ^ in default of 
 direct heirs (mi heredes) such personal belongings as the client 
 possessed may have fallen to the members of the protecting clan 
 {geniiles), 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,^ 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 consider- 
 able 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.* 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.* 
 Even after the effective infliction of religious sanctions had dis- 
 appeared, the duty to the client ranked only second to that 
 which was owed by a guardian to his ward.^ The earliest 
 
 ' Savigny Recht des Besitzes (7th ed.) p. 202. On the general condition of 
 the client see Ihering Geist des rSm. Rechts i. p. 237. 
 
 =■ Dlonys. ii. 9, 10. 
 
 ' i^yiyeuiBai rb, Skaia . . . Si'/cas Xayxi-veiv . . . to!: iyKoKoOnv iwix^iv (Dlonys. 
 ii. 10). If representation in the civil courts is meant, it must have resembled 
 that of the paterfamilias, who sues in his own r^ht, for procuratory was unknown 
 in early Roman procedure (Just. Inst. iv. 10 " cum olim in usu fuisset alteriua 
 nomine agere non posse "). 
 
 * Verg. Aen. vi. 609 "fraus innexa clienti." Cf. Servius ad loo.. 
 
 " Gell. V. 1^ "Conveniebat ... ex moribus populi Romani primum juxta 
 parentes locum tenere pupillos debere, fidei tutelaeque nostrae creditos ; secundum 
 
I THE ELEMENTS OF THE POPULATION 9 
 
 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 cUentes themselves possessed 
 votes in the comitia cwriata} 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 appUcatio 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.^ 
 
 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 relation- 
 ship were held to extend to him. But we are also told that at 
 this period a principle was recognised that this bond was for ever 
 broken by the client's attainment of curule office,* that is, by the 
 ennoblement of him and his family. 
 
 § 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 
 
 eos proximum locum clientes habere, qui sese itidem in fidem patrooiniumque 
 nostrum dediderunt." The third place was filled by hospites, the fourth by 
 cognaii and adfines. 
 
 > Liv. ii. 66. 
 
 ^ Suet. Claud. 24 "(Claudius) Appium Caecum censorem (312 B.C.) . . . 
 libertinorum tilios in senatum allegisse docuit ; ignarus temporibus Appii (312-280 
 B.O. ) et deinceps aliquamdiu ' libeitinos ' dictos, non ipsos qui manu emitterentur- 
 Bed ingenues ex his procreatos." 
 
 8 Plut. Mar. 5. 
 
\0 ROMAN PUBLIC LIFE chap. 
 
 ancestor, a sign of this original potestas being the common gentile 
 name.''^ 
 
 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 gentUes ; 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) ^ 
 — since, thefamilia 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 com- 
 munity 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.* 
 
 ' Pestus p. 94 "gentilis dicitur ex eodem genere ortus et (!) is qui simili 
 nomine appellatur. " ^ p. 6. 
 
 ' 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." 
 
I ROMAN FAMILY ORGANISATION 11 
 
 This definition excludes from membership of a gens all those 
 Plebeians wh6 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 sermtus 
 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 bear- 
 ing 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 cUents 
 of the latter, and could never, therefore, form a gens of their 
 own.^ 
 
 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.^ 
 But this is, as we saw,^ 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 PopiUi.* 
 
 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, 
 
 ' The test is illustrated \>j a controversy between the patrician Claudii and 
 the plebeian Claudii Marcelli, Cio. de Orat. i. 39, 176 "Quid ? qua de re inter 
 MarceUos et Claudios patrioios 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, "nee potentia minor nee dignitate." 
 
 ^ Liv. i. 8, quoted p. 5. 
 
 " p. 5. 
 
 * Cic. in Verr. i. 45, 115 "Minucius qnidam mortuus est ante istum (Verrem) 
 praetorem ; ejus testamentum erat niillum. Lege hereditas ad gentem Minuciam 
 veniebat"; de Leg. ii. 22, 55 "Jam tauta religio est sepulchrorum, ut extra 
 sacra et gentem inferri fas negent esse ; idque apud majores nostros A. Torquatus 
 in gente Popilia judicavit." 
 
12 ROMAN PUBLIC LIFE chap. 
 
 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.^ 
 
 (i.) It has been held that the clans were the unit of voting 
 in the original popular assembly at Eome, the comitia curiata.^ 
 But the passage on which this conclusion is based only implies 
 that, originally, membership of this comitia depended on posses- 
 sion 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 minmes — a distinction within the patrician 
 gentes that survived into the Eepublic. Of the gentes minores we 
 know but one name, that of the patrician Papirii ; ^ a list of some 
 of the gentes majores has been reconstructed with some plausibility 
 from those clans which furnished prindpes senaius; they are the 
 Aeinilii, Claudii, Cornelii, Fabii, Manlii, and Valerii.* Tradition 
 is inclined to represent this distinction as having originated 
 politically,^ but it is a tradition working on the impossible 
 hypothesis that the Patriciate derived its origin from member- 
 ship 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 
 
 1 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 {ffist. Home 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." 
 
 ^ Niebuhr op. oit. 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). 
 
 * Cic. ad Fam. ix. 21, 2. * Momms. Staatsr. iii. p. 31. 
 
 ^ Cio. de Rep. ii. 20, 35 " (L. Tarquiniua) duplicavit ilium pristinum patrum 
 numerum ; et antiques patres majorum gentium appellavit, quos priores sententiam 
 rogabat ; a se ascites mlnorum"; Liv. i. 35 " (Tarquinius) centum in patres 
 legit ; qui deinde minorum gentium sunt appellati." 
 
I ROMAN FAMILY ORGANISATION IS 
 
 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 genfes, 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.^ 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.^ 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.^ 
 
 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" con- 
 sequence of the incorporation of fresh elements into the com- 
 munity, 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 ; * and Sabine races as well, such as the Valerii,^ are also 
 said to have been admitted. The reception of new gentes was 
 ' p. 3. 
 
 ^ The gentes mmores are sometimes identified with the gentes of the last 
 admitted of thSse tribes, the Luceres (Ortolan Hist, of Roman Law i. § 33). 
 * Momms. Hist, of Rome bk. i. oh, v. 
 ' LIt. i. 30 ; Dionys. iii. 29. » Dionys. ii. 46. 
 
14 EOMAN PUBLIC LIFE chap. 
 
 efiected by the Patricians and, as we should expect, by the 
 assembly which represents the whole patrician body, the comiiia 
 ewriata, under the presidency of the king. They were coopted 
 by their peers,i and it is imptobable that the patrician order 
 could have been recruited by the act of the king alone.^ He 
 might conceivably have chosen Plebeians as members of his 
 advising body, the Senate, as the first consuls are said to have 
 done,^ 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 Eepublic, 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.* 
 
 The account of gentes being received into the Roman com- 
 munity 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.^ 
 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 
 
 • Liv. It. 4 " nobUitatem Testram per oooptationem in patres habetis *' ; 
 Suet. Tii. 1 "gens Claudia in patrioios oooptata." So Servius and Numa are 
 said to have been transferred by the Populus from the ranks of the Sijfws to those 
 of the irarpiKLoi. 
 
 ^ As is implied in Suet. Aug. 2 (quoted p. 7). " Dionys. t. 13. 
 
 ^ Liv. ii. 2 "Brutus ad populum tulit ut omnes Tarquiniae geutis ezsules 
 essent"; Varro ap. Non. p. 222 "omnes Tarquinios ejioerent, ne quam 
 reditionis per gentilitatem sperr. haberent. " 
 
 ' Suet. Tib. 1 " Patricia gens Claudia. . . orta est ez Eegillis, oppido Sabinornm 
 . . . post reges ezactos sexto fere anno, in patricias cooptata. Agrum Insuper 
 trans Anienem clientibus, locumqne sibi ad sepulturam sub Capitolio, publice 
 acoepit." Cf. Liv. ii. 16 (cited p. 7). 
 
ROMAN FAMILY ORGANISATION 15 
 
 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 ; ^ while 
 in other accounts of land-assignments we hear of such being 
 made to the curia (<f>pa.Tpa) ^ or to individuals (viritim),^ 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.* Amongst the terms describing early territorial possession 
 we have, apart from ager publicus, the heredium and the ager 
 privatus. The private possession of the heredivm is attributed to 
 Eomulus,^ and is thus regarded as a modifica;tion of some form 
 of common tenure; and the heredium consisted of only two 
 jugera,^ 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,' 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 agnaius and then to the gentiles;^ and it was in con- 
 nexion with this right, which lasted down to the end of the 
 Eepublic,® that the definition of a gentilis was of such legal 
 importance.^" This inheritance is by the gentiles as a whcde, 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. 
 
 ' Dionys. v. 40. ' ib. ii. 7. 
 
 ' Cic. de Rep. ii. 14, 26. * Momms. Staatsr. iii. p. 23. 
 
 » Varro R.R. i. 10, 2 ; of. Plin. E.N. xix. 4. 
 
 * Festus p. 53 " Centuriatus ager in ducena jugera definitus, quia Bomulua 
 centenis oivibus ducena jugera tribuit. " 
 
 ' It is passible, however, ihaXmanus in such expressions is merely the symbol 
 of power. 
 
 ^ " Si adgnatus neo escit gentiles familiam habento.'' 
 
 ' Suet. Caes. 1, of Caesar's refusal to divorce Cornelia ; as a consequence he was 
 "uxoris dote, et gentiliciis haereditatibus niultatus." 
 " p. 10. 
 
18 EOMAN PUBLIC LIFE chap. 
 
 By the Twelve Tables they have the guardianship of the insane ^ 
 and a reversionary right of guardianship over women and 
 children. 2 Guardianship (tutela) must have given them all the 
 rights of a person in Eoman 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 com- 
 mon agreement \he praeruymen "Lucius," because two of its bearers 
 had been respectively convicted of highway robbery and murder,* 
 and the patrician Manlii renounce the praenomen " Marcus " in 
 consequence of a crime committed by a clansman of that name ; * 
 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.* 
 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 littlie 
 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,® and hence one of the forms observed in the case 
 of a change of gens by adrogation was the sacrorum detestatio, a 
 
 ' "Si furiosus escit, ast ei cnstos nee escit, adgnatnm gentiliumque in eo 
 pecuniaqne ejus potestas esto." 
 
 ^ Cio. pro Dovw 13, 35. = g,,et 2iij_ i_ 
 
 * Cio. Phil. i. 13, 32. " Maine Aneient Law pp. 6, 27. 
 
 ' Cio. pro Domo 13, 35 "Quas adoptiones (i.e. legal ones) . . . hereditates 
 nominis, pecuniae, safirorum secutae sunt. Tu . . . neque amissis saoris patemis 
 in haeo adoptlva venisti. Ita perturbatis sacris, contaminatis gentibus, et quam 
 doseruisti et quam polluisti, eto."; de Leg. il. 19, 48 "haeo jura pontificum 
 anotoritate consecuta sunt, ut ne morte patris familias sacrorum memoria occideret 
 iis essent ea adjunota, ad quos ejusdem morte peounia venerit." The transmission 
 was thus a part oi jus pontificium, not of jus civile. Cf. Serv. in Aen. ii. 156. 
 
I ROMAN FAMILY ORGANISATION 17 
 
 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.^ 
 
 This question of the sacra is an index to the fact that 
 membership of a gens might be either natural or artiiicial. 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 
 chUd, 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 
 m the property and sacra of her husband,^ and there is even some 
 trace of her having originally changed her gentile name as well.* 
 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 question- 
 able 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 sub- 
 mitted himself to the potestas of another. Adoptio, on the other 
 hand, was the change from one potestas to another. If there was 
 
 ' Cf. the story of Verginia in Liv. x. 23 (296 B.O.) " 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." 
 
 ^ &v5pl KOLvbjvbv air6,vTit)v x/ji/judrwp re koX lepwv (Dionys. ii. 25). 
 
 ' Plut. Qu. Rcrm. 30 A(i tI t^iv vifi^r/v eladyovres \^eip KeXeioviriV "Otov 
 ffi Tdi'os, iyi> ViXa ; 
 
 
 
18 ROMAN PUBLIC LIFE chap. 
 
 a form of true adoption by patrician law,^ 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) ^ in its original and proper meaning is the 
 aggregate of members of a household under a common head; 
 this head was the paterfamilias — the ovly member of the house- 
 hold who possesses legal rights. 
 
 The two ideas underlying the Eoman 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? 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,* 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 
 
 ^ e.g. a testamentary adoption by a putlio act in the amiitia calcUa. 
 
 ^ Familia is etymologically a "household." Cf. Sanskr. dhA "to settle," 
 dhAman "settlement." 
 
 » The or^al term was, perhaps, manv^ 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/amiiia. 
 
 * Plutarch (Rom. 22) quotes a law of Romulus allowing the divorce of the wife 
 ^ttI 4"^pfuiKelf riKVUiv ij KKeiSdv iTTojSoXg Kal /iotx^vSeurav. 
 
I ROMAN FAMILY ORGANISATION 19 
 
 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 Eomulus " 
 — 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 neighboiu-s,^ 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 pecwlium. 
 Yet the grant is a mere concession, and one which may be with- 
 drawn 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 irre- 
 sponsible, and responsibility for Ms 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);^ 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 mandpii), 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.^ 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,^ was an attempt to put an 
 
 ' Dionys. ii. 15. 
 
 ^ This Jus noxae dationis first disappears finally in the law of Justinian {Tnst. 
 iv. 8, 7 ; Dig. 43, 29, 3, 4). Before its abolition a modification had been intro- 
 duced by the rule that, when the child had acquired an equivalent for the damage he 
 had caused (quantwin da/mmi dedit), the owner should be forced to manumit him. 
 
 ' Even by Constantine the sale of new-bom children (sanguinolenti) was 
 permitted, but only propter nimiam paupertatem {God. 4, 43, 2). 
 
 * " 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. 
 
20 ROMAN PUBLIC LIFE chap. 
 
 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. -^ 
 
 The father might scourge or imprison his child,^ 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? It was a power 
 never questioned throughout the whole of Eepublican history, 
 and which received no legal limitations until the time of the 
 Middle Empire.* 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 ;^ sometimes it was enforced in the interest of the 
 state to punish a public crime.* 
 
 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 obliga- 
 tions 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 
 
 ^ This vmdicatio JUii was in later Roman law replaced by a writ issued by 
 the praetor {interdictum de liberis exMbendis), the effects of which were like that 
 of Habeas Corpus. ^ Dionys. ii. 26, 27. ' GeU. v. 19, 9. 
 
 * Hadrian punished the liilling of a son with deportation {Sig. 48, 8, 5) ; 
 Constantine declared it pcrricidium. 
 
 ° Instances are given in Voigt {Zwolf Tafeln ii. 94). M. Fabius Bnteo 
 (223-218 B.C.) put his son to death as a punishment for theft (Oros. iv. 13), and 
 a certain Pontius Aufldianus 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. 
 
 ^ We may cite two instances lying at the very extremes of Bepublican 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 (Sail. Cat 39). 
 
I ROMAN FAMILY ORGANISATION 21 
 
 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 pat&r was also great. He 
 defends, not his own selfish rights, but the rights of a corpora- 
 tion 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 pater- 
 familias, 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 {tnitela).^ The family splits up into a number of 
 famiUae, and none of these is of more importance than the 
 
 ^ Modern writers are inclined to reject the appeal made to the sex/us fragilitas 
 by the Eoman jurists, and to believe that the original motive lay in the desire to 
 keep the property of the famUy together (cf. Ozyhlarz Inst. p. 275) ; but, as 
 this motive did not operate in the case of sons, it ia difBoult to see why it should 
 have done so in the case of the wife or daughters, apart from a belief in the in- 
 capability of women to defend their own claims. For the motive underlying 
 the tutela rmiMerwm see p. 31. 
 
22 ROMAN PUBLIC LIFE ohap. 
 
 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 ofiice ; 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 ; ^ if he is 
 wasteful (prodigm) 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),^ 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 (censilium domesticmn) before taking any 
 extreme step with respect to the members of his family. This 
 was never limited to the agnatic circle; it admitted blood 
 relations and relatives by marriage, while personal friends 
 outside the family might be summoned as well.* Any severe 
 punishment of a child and the divorce of a wife had to be 
 submitted to the judgment of this assembly. How strong 
 the sentiment in favour of this procedure was may be judged 
 from the fact that in later times we find the censor (in 
 Republican times the personal exponent of the moral sense of 
 the community) degrading a senator who had divorced his wife 
 
 » p. 16. 
 
 * Ulp. Reg. 12, 2 " Lex xil. Tab. prodigum, oui bonis interdictum est, in ouratione 
 jnbet esse agnatorum"; of. Ulp. in Dii;. 27, 10, 1 "Lege xii. Tab. prodigo 
 interdioitur bonorum snorum 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. 
 
 ' See the account in Val. Max. v. 8, 2 (p. 23) "adhibito propinquorum et 
 amicoruiu cousilio." 
 
I ROMAN FAMILY ORGANISATION 23 
 
 without taking advice of the family council.^ The sentiment 
 was but one expression of the principle which runs through the 
 whole of Roman life, that no man should act in an important 
 matter without taking coimsel 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 Eomulus, 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.^ With the secularisa- 
 tion of Roman law such penalties disappeared, and it is question- 
 able whether they often required enforcement,* 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 pMievm. 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.* 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 triistee 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.^ 
 
 ' Val. Max. ii. 9, 2 "M. Val. Maximus et C. Junius Brutus Bubulcus 
 censores . . . L. Anuium senatu moverunt, quod, quam virginem in matrimonium 
 duxerat, repudiasset, nnllo amicoium in consilio adhibito." See Greenidge 
 Infamia in Roman Lam p. 65. ^ Diouya. ii. 26, 27. 
 
 ' For the alleged lateness of divorce at Rome, even after the Twelve Tables 
 had freely permitted it, see Gell. iv. 3 (Infam/ia in Moman Law p. 65). 
 
 * Dig. i. 6, 9 (Pomponius) "Alius 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 desoenderet 
 ex equo, inclamavit, tum demum desiliens, 'Bxperiri,' inquit, 'volui, fill, satin' 
 ecires consnlem te esse." Cf. Gell. ii. 2. 
 
 " Festus B.v. Duicensua (p. 66) "dicebatur cum altero, id est cum filio 
 census." 
 
24 EOMAN PUBLIC LIFE ouap. 
 
 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 mxus 
 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,^ and who, on non-fuliilment 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 Eoman 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 Eoman 
 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, th^ir 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 (jamilw)^ 
 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 
 
 ' Probably by a mancipaiio fidmyiae causa, one, i.e., by which he had formally 
 transferred (mancipamt) 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. 
 
 ^ Ulpian Reg. 19, 1 ; Gains ii. 15. Res mancipi at a later period included 
 lands in Italy (with their servitudes), slaves and quadrupedes quae dorso collove 
 domantwr. In the expression familia peeuniaque, " familia " probably denotes 
 the slaves. Pierron (Dw sens des mots familia peeuniaque) has shown the theory 
 of Ihering and Cuq, that the former denotes res mancipi, the latter res nee maneipi, 
 to be untenable. 
 
I ROMAN FAMILY ORGANISATION 25 
 
 own labour, but even his master's will cannot make it hia 
 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 Eome 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 inter- 
 course 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 Mra 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,i and of his being the tutor and playmate of 
 his lord's children.^ 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 £he primitive culture 
 ' Plut. Cato maj. 3. ' Plut. Gor. 24. 
 
26 EOMAN PUBLIC LIFE chap. 
 
 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 com- 
 mitted by the dominus^ 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 nee mandpi. 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 {dominiwm) ; ^ and in accordance with this view we 
 find the practice of holding an inheritance in joinc ownership, 
 the co-heirs bearing the name of consortes.^ 
 
 Secondly, the earliest testaments of which wo have knowledge 
 were public acts performed before the comitia of the people. The 
 most ancient was the patrician form of testament — the testa- 
 mentum comitiis calatis — effected at the comitia curiata which 
 
 ' See the section on the censor. 
 
 ' Paulns in Dig. 28, 2, 11 "in suis heredibns eTidentius apparet oontinua- 
 tionem dominii eo rem perduoere, ut nulla videatur hereditas fuisse, quasi dim hi 
 domini essent, qni etiam vivo patre quodammodo domini existimautur." What 
 the JUius famUias acquires by the death of Lis father is merely libera honarum 
 administratio. 
 
 ' (Jell. i. 9 "Tamquam.illud fuit anticum consortium, quod jure atque verbo 
 Romano appellabatur 'eroto non cito'"; Serv. in Aen. viii. 642 " 'citae' divisae, 
 ut est in jure 'ercto non cito,' id est patrimonis vel hereditate non divisa." 
 
I KOMAN FAMILY ORGANISATION 27 
 
 were summoned (calata) twice a year for this purpose.^ 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 Eoman law.^ 
 
 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. Bjit 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 ; * 
 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 prodndu)* 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 exereiius 
 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. 
 
 ^ Gell. XV. 27 " ledem 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 fleret, alterum in pro- 
 cinctu, cum viri ad proelium faciendum in aciem vocabantur, tertium per familiae 
 emanoipationem, cui aes et libra adhiberetur " ; Gaius ii. 101 " aut calatis 
 comitiis faciebant, quae comitia bis in anno testamentis faoiendis destinata eraut ; 
 aut in procinctu, id est, cum belli causa arma sumebant. " Of. Ulpian {Reg. 20, 
 2) on the testamentorum genera tria. 
 
 ^ This testament is never associated with adrogation, although this took place 
 before the same assembly. 
 
 ' 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 saora would be continued and the family not become extinct. 
 
 * See the passages of Gellius, Gaius, and Ulpian, cited n. 1, and compare 
 Festus p. 225 "procincta olassis dicebatur, cum exeroitus oinotus erat Gabino 
 oinctu 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 euudum foret "). 
 
28 ROMAN PUBLIC LIFE chap. 
 
 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 enrol- 
 ment 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-maMng. 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 de- 
 pendent on the condition that the testator " subita morte urgue- 
 batur"^ — a condition which implies that the comitial testa- 
 ment 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 lihram 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 
 
 ' Gaius ii. 102 "Qui neque calatis oomitlia, neque in procinotu testamentum 
 fecerat, is, si subita morte urguebatur, amico familiam suam, id est, patrimonium 
 suum maneipio dabat, eumque rogabat, quod cuique post mortem suam dari vellet." 
 
I ROMAN FAMILY ORGANISATION 20 
 
 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." ^ 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,^ 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,^ 
 and the mere expression of the will of the testator came to be 
 considered the essential part of the testament. In this announce- 
 ment 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. 
 
 ' Gaius ii. 104 "Familiam pecuniamque tuam endo mandatela tutela custo- 
 delaque mea, quo tu jure testamentnm facere possis secundum legem publicam, 
 hoc aere esto mihi empta." For famUia pecumaque see p. 24. 
 
 " 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. 
 
 ' ' ' Cum nexum faoiet manoipiumque, uti lingua nunoupassit ita jus esto." 
 
30 ROMAN PUBLIC LIFE chap. 
 
 The testament has ceased to be a contract ; it is a one-zsided 
 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." ^ 
 
 Thus at a very early stage of Eoman 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 fiUtis 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 testanlentary disposition depend upon its 
 use, and its use depends on the character of the people. The 
 Eoman 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 
 Eoman 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 Eoman, 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 
 
 1 Gaius ii. 104 "Haeo ita, ut in his tatiulis cerisque soripta sunt, iia do, ita 
 lego, ita testor, itaque vos, quirites, testimonium mihiperliibetote." 
 
I ROMAN FAMILY ORGANISATION 31 
 
 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 Boman family would be incomplete 
 without consideration of the rights or infringement of rights 
 dependent on it. 
 
 The full legal status of a Eoman 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 ca/put 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 films fwmilias 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 
 Eoman law, probably accounts for the perpetual tutelage of 
 women. The materfa/milias 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 Eome, whether 
 for the purpose of defending one's own or another's rights, was 
 regarded as a public act ; and Eoman sentiment so strongly dis- 
 approved 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.^ It is possible that in the earliest stage of Eoman 
 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,^ 
 but chiefly through a series of legal fictions, the capacity of 
 women to defend their own interests first emerges.^ 
 
 ' Plut. Oomp. I/yc. c. Num. 4 \iferai yoSv irore yvvaiKis tliroiarfi SIktiv ISlav 
 iv &yopq, Triii^OLi t^v ff&yxXijTOV els 0eoD, TVvBavopiAvqv, rtfos &pa t^ 7r6Xei 
 ffrj/xeiov elri rb yeyevrfiiAvov . 
 
 ^ Such as the lex Claudia, which abolished the legUima tutela agnatm-um 
 (Gaius i. 171). 
 
 • A trace of the old disability survives in the prohibition of advocacy to 
 
32 ROMAN PUBLIC LIFE chap. 
 
 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 Eoman 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.^ 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 capvt. We 
 know, for instance, that the datio in mancipiwn 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 manvmi) 
 was held to have this consequence. It is one that is scarcely 
 intelligible in the case of a filia famUias 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 tutda 
 of her relatives, it is a natural though not strictly legal con- 
 ception.^ Some other ppplications of the system are still more 
 artificial, and are perhaps creations of late Eoman jurists who 
 came to consider that the essence of a loss of caput was a change 
 of status (status commutatio).^ Thus adoption, which is the change 
 
 women ; the praetors declined to grant them a formula on behalf of others. A 
 certain Carfania (Gaia Afrania) " invereounde postulans et magistratum inqnietans " 
 is said to have been the occasion of this rule (Ulp. in Dig. 3, 11, 5). 
 
 ' 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. lose otfamUia. 
 
 ^ See Eisele "Zur Natur u. Gesohichte der capitis deminutio" in Beitrdge ear 
 Romischen 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. 
 
 ' Gains i. 162 "Minima capitis deminutio est, cimi et civitas et libertas 
 retftetur, sed status hominis commutatur ; quod accidit in his qui adoptantur, 
 item in his quae coemptionem faciunt, et in his qui mancipio dantur, quique ex 
 mancipatione manumittuntur." 
 
1 ROMAN FAMILY ORGANISATION 33 
 
 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 sid 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 imder power 
 has the right of marriage (conuMum), 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 Eoman citizens forms the popului 
 Romanus quiritium,''- or populus Romanus quirites.^ 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,^ and the quirites 
 are the "bearers of the lance."* If the latter etymology is 
 
 1 Liv. i. 32. ■■= Gell, i. 12, 14 ; x. 24, 3. 
 
 ^ Mommsen {Staatsr. iii. 3, n. 2) connects the word with populari. The 
 magister ;popidi (i. e. the dictator) is master of the infantry host. 
 
 ■• 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 Cvna (Lange Mom. Alt. i. 
 p. 89 ; Belot Eist. d. Ghev. Rom. i. p. 312). 
 
 D 
 
34 EOMAN PUBLIC LIFE chap. 
 
 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.^ 
 
 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 popilus as equivalent to the patrician com- 
 munity 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 com- 
 munity. After the Servian constitution the words denote the 
 whole people (universus populus). Populus and plebs are hence- 
 forth only distinguished as the whole to the part — the dis- 
 tinction being necessary, since the Plebs continued to form a 
 corporation apart, and this corporation excluded the patrician 
 families.^ So, in a later official formula, senatus populvsgue 
 Bomanus 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 sufirage or the attainment of office. It is possible 
 that the distinction between the full citizen (civis optima jure) 
 and the partial citizen {civis non optima jure), although probably 
 not a primitive,^ may yet be an ancient conception of Roman 
 
 J Suet. Jul. 70. 
 
 ^ Capito ap. Gell. i. 20 "Pletes ... in qua gentes civium patrioiae non 
 insunt : plebisoitum . . . est . . . lex, quam pletes, non populus, acoipit " 
 Of. Festus p. 233. ' r . 
 
 ' According to the primitiTe 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. ' 
 
I CITIZENS AND POLITICAL SUBDIVISIONS OF STATE S6 
 
 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 guirites. It was, perhaps, in 
 consequence of this change in the constitution that cives replaced 
 guirites 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 {commerdi 
 et comibii). 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 Boman process of law {legis actio). This 
 commerdum 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 ; ^ 
 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 jm conubii is the right to conclude 
 a marriage which is regarded as fully valid by the state (matri- 
 moniwm legitimvm or jwe dvili), 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 efi'ected his position as a father by a 
 difierent ceremony.^ 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 ofiice as a delegate 
 
 ' Nonius, a.y. plebitas, p. 101 "Hemina in annalibns, 'Quicumque propter 
 pletitatem agro publico ejeoti sunt. ' " Cf. Liv. iv. 48. ' p. 1 7. 
 
36 EOMAN PUBLIC LIFE ohap. 
 
 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 inter- 
 course between the national gods and the citizens of the state,-' 
 and the peculiarities of the conception which the Komans 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 futiue 
 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 Eome, and no science of the 
 future was encouraged by the state. The Roman consultation of 
 the gods is only employed as the test of the rightness of an already 
 formed human resolution.^ It tells men only whether they are 
 to carry out a course of action already purposed ; it may confirm 
 them in it or warn them from it ; and it is the duty of men to 
 seek a sign either of encouragement or of warning. It is of the 
 highest importance to remember this view of the guidance of the 
 gods, for it is the chief sign of the way in which the Romans, in 
 spite of their genuinely religious spirit (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 
 
 ' 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 conoedimus . . . et eosdem hominum oonsulere generi, et posse nohis 
 signa rerum futurarum ostendere ; nou video cur esse divlnationem negeni. " 
 
 " Cio. de Div. ii. 33, 70 (the difficulty of answering for results may appeal 
 to a Marsus atigwr but not to a Roman) "non enim sumus ii nos augures, qui 
 avium reliquorumve siguorum observatione futura dicamus." Cf. i 58,' 132 
 " Non habeo . . . nauci Marsum augurem, non vicanos h.iruspioes, non de circo 
 astiologos, non Isiaoos conjectores, non interpretes somniorum. Non enim sunt 
 ii aut scientia aut arte divini." 
 
I CITIZENS AND POLITICAL SUBDIVISIONS OF STATE 37 
 
 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 Eoman, 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 magis- 
 trates are bound to ask for signs ; but all the efforts of human 
 ingenuity are directed to secure that the signs shall be favourable.^ 
 (ii.) It is plain that, on this theory of religious Intervention, 
 no priestly medium is required between the gods and their wor- 
 shippers. Divination as the science of the future is an elaborate 
 art, which cannot be possessed by the ordinary man. It requires 
 the knowledge of ritual to compel the divine utterance ; it 
 assumes that the gods have special confidence in the select 
 participators of an inner cultus, to whom they reveal what is 
 hidden from the many ; it requires the devotion of a lifetime, 
 and often special rules of asceticism and purity, to interpret the 
 hidden signs ; it leads, in short, to the belief in oracular power, 
 in -the prophetic gift, in the claims of a priesthood specially 
 set apart. ^ There was none of this at Rome. The right of 
 invoking auspices is not a priestly gift ; it is one that is possessed, 
 in a higher degree by the magistrate, in a lower degree by all 
 the full citizens of the primitive Eoman 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 indi- 
 vidual, and less power than the magistrate, of eliciting such a 
 revelation. Yet, if the assistance of the augur was called in, 
 and his interpretation given, this verdict was final. We are told 
 that disobedience to it, at least by the magistrate in taking the 
 public auspices, was in early times visited with a capital penalty ; ^ 
 a statement which probably means that the heads of the Eoman 
 religion, the pontiffs, reckoned such an impiety as one for which 
 
 ' See the treatment of the auspices in the section on the magistracy (p. 163). 
 
 ^ 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 Eoman. Its object was generally to win approval for a 
 contemplated course of action. 
 
 * Cio. de Leg. ii. 8, 21 " Quaeque augur injusta, nefasta, vitiosa, dira defixerit, 
 inrita infectaque sunto ; quique non paruerit, capital esto." 
 
38 ROMAN PUBLIC LIFE chap. 
 
 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 impeiriia) and 
 dblalwa?- 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.^ 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.^ 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. 
 
 ' Serv. ad Aen. vi. 190 "auguriii 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). 
 
 ^ Liv. vi. 41 "Auspioiia hanc urbem conditam esse, auspioiis bello ao pace, 
 domi militiaeque omnia geri, quis est qui iguoret ? " 
 
 ' This view is most fully expressed in the formalities of the interregnum 
 See the section which treats of this institution (p. 147). 
 
t CITIZENS AND POLITICAL SUBDIVISIONS OF STATE 39 
 
 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 auspida piMica and privata. There was a 
 time when no important act of business or domestic life was 
 undertaken without an appeal for divine guidance.^ 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.^ The confa/rreatio 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 diflScult to see how the Plebeians could have been 
 prevented from taking the auspida 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 cmulium between the orders ; ^ on the other, 
 that the atispex 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 {auspida 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)^ This remains 
 not only a purely magisterial, but a purely patrician privilege, 
 
 ^ Cic. de Div. i. 16, 28 " Nihil fere quondam majoris rei, nisi auspicato, ne 
 privatim quidem, gerebatur : quod etiam nunc nuptiaram auspices declarant, 
 qui, re omissa, nomen tantum tenent." In i. 17, 31 we have the story of Attus 
 Naviua taking auspices by aves in a private matter. Cf. Liv. vi. 41. 
 
 ^ Cio. de Div. i. 16, 28 (see last note) ; Suet. Glavd. 26 ; Tac. Ann. xi. 27. 
 
 ' 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 impelrativa. 
 
 * 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 legvm dictio (Serv. ad Aen. iii. 89 ; cf. p. 43 n. 2). 
 
40 EOMAN PUBLIC LIFE chap. 
 
 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.'- 
 
 The enjoyment of full political rights in ancient Eome was 
 conditioned only by membership of a patrician gens ; full citizen- 
 ship 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 Eamnes, Tities, and Luceres, and the thirty 
 curiae. With reference to the question whether these were 
 primary and natural associations of an ethnic character or arti- 
 iicial creations made by a supreme authority after the founding 
 of Rome, we have already seen ^ 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.^ 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 
 
 ' A similar confusion was at an earlier period introduced with reference to tlie 
 givers of the auspices. They are said to be given by the people (Cio. de Div. ii. 
 36, 76 ; p. 39), but the great bulk of the people (i.e. the Plebs) did not possess 
 them. 2 p_ 3 
 
 ' Diouys. iv. 14 {Servias TuUius) rots KaTaypa.<phi tuv (TTpanardv koX tcIs 
 ela-irpd^eis tQv xfnilJ^Tav . . . ofeM KaT& t&s rpeis 0uXas T&i yspwds, lis 
 irpSrepop, k.t.X. Varro L.L. v. 181 "Tributum dictum a tribubus, quod ea 
 pecunia, quae populo imperata erat, tributim a singulis pro portione census 
 exigebatur." 
 
t CITIZENS AND POLITICAL SUBDIVISIONS OF STATE 41 
 
 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," ^ and 
 was composed of three " thousands " {milites),^ one from each of 
 the three tribes. These foot-soldiers were commanded by three 
 or nine tribal officers, the tribuni militwm,.* 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,^ these three 
 hundreds (centuiiae) were increased to six.^ 
 
 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 maint^ning 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 lead- 
 ing divisions of the state and a serious infringement of patrician 
 rights. 
 
 The thirty curiae, originally local units, as is proved by their 
 names,^ were divided, ten into each of the three tribes. The 
 members of the clans belonging to the same curia were called 
 cwriales. But, although the cwiae 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 cwria, the gentiles were still members of that state-division. 
 The curiae were religious as well as political associations, which 
 
 ' From legere, Varro t.L. v. 87. 
 
 " Varro L.L. v. 89 " milites quod trium milium primo legio fiebat, ac singulae 
 tribus Titiensium, Ramnium, Liicerum milia singula militum mittebant." 
 
 ' ib. 81 " tribuni militum quod terni tribus tribubua Ramnium, Luoerum, 
 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. * p. 12. ° Liv. i. 36. 
 
 " e.g. Calabra, Foriensis, Veliensis. Other names (such as Titia) may be 
 eponymous. 
 
42 ROMAN PUBLIC LIFE chap. 
 
 had from the first, or finally developed, a close corporate life. 
 Each had its peculiar sacra ^ and a place of worship, containing 
 an altar and chapel, which itself bore the name curia ; ^ and the 
 religious afiairs of each were conducted by a priest caUed owrio, 
 assisted by a flamen curialis.^ The thirty curiones formed a 
 college, of which the curio maximus was the president.* 
 
 It is difiicult to say how far the religious organisation of the 
 cimae was a natural or artificial development. But artifice was 
 certainly at work in determining their important political 
 character. The primitive popular assembly at Eome is the 
 comitia cwiocta, 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 crm-ia, 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.^ 
 
 § 5. The Monarchical Constitution 
 
 It is generally agreed that the monarchical constitution of 
 early Eome 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 legisla- 
 tion, and in the ratification of magisterial power. The attribution 
 of the right of appeal in criminal cases (provocatio)^ 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 Eoman people the sole source of law,^ that 
 is, of standing ordinances of a general kind which are to bind the 
 community,* although the initiative in legislation can come only 
 
 ' Festus p. 62 "onrionia sacra, quae in curiis fiebant"; p. 64 "curiales 
 flamines ouriarum sacerdotes." 
 
 ° ib. p. 49 (s.T. curia) "locus est, ubi publicas curas gerebant." 
 
 3 See note 1. * Festus p. 126 ; Liv. xxvii. 8. 
 
 '■' Festus p. 55 " Celeres antiqui dixerunt, quos nunc equites dioimua . . . qui 
 primitus eleoti fueruut ex singulis curiis deni, ideoque omnino trecenti fuere." 
 
 ' Liv. i. 26 ; Cic. de Rep. ii. 31, 54. ' Dionys. ii. 14. 
 
 ' " Generale jussum " (Capito ap. Cell. a. 20). 
 
I THE MONAECHICAL CONSTITUTION 43 
 
 from the king; and apart from the rulings of the pontiiical 
 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 Eepublican 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.i After its ordinance it 
 may or must create a contractual relation between individuals,^ 
 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,^ 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.* 
 
 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. 
 
 ^ Lex Is probably connected etymologically with the German legem (Gothic 
 lagjan) as Sefffi-ds with rlBriiu. 
 
 * In business we have leges locationis, venditiords, in the structure of corpora- 
 tions 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. 
 
 ^ Dionys. iii. 62 ; Cio. de Rep. il. 17, 31. 
 
 ' Tac. Ann. xi. 22 ; Ulp. in Big. i. 13. 
 
44 ROMAN PUBLIC LIFE chap. 
 
 This personal head possessed a variety of titles which marked 
 the various aspects of his rule — titles which survived into the 
 Eepublic, 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,^ dictator, 
 and magister popwli.^ 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 aU 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? 
 
 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),^ 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 (trahea) which survived in the Eepublic 
 — that of purple for the priestly office, of purple and saffron for 
 augury, of purple striped with white for the rex^ — were 
 probably all vestments of the king. Tradition also assigns him 
 the eagle-headed sceptre, the golden crown, the throne (solium),'^ 
 and the chariot within the walls, from which the curule chair 
 (sella curulis) was believed to be derived."^ The statement that 
 
 ' Varro L.L. v. 80 " Praetor diotus, qui praeiret jure et exercitu." But the 
 title is, perhaps, a purely military one {prae-itor, "the man who goes before the 
 army "). 
 
 ^ Festns p. 198 "in magistro populi faciendo, qui vulgo Dictator appellatur." 
 
 ' Cio. 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. 
 
 * Lietor is probably derived from licere. For other attempts at derivation see 
 Gell. xii. 3. They summon, not only to the assembly, but also to the courts, and 
 are thus the chief mark of jurisdiction and coercive power {coeroitio). The 
 individual cwriae 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. 
 
 ^ Serv. in Aen. vii. 188, 612 ; xi. 334 ; Ov. Fast. ii. 503. 
 
 ^ Cio. de Fin. ii. 21, 69 ; Dionys. iii. 61. 
 
 ' Pestus p. 49 " currulea magistratus appellati sunt, quia curru vehebantur. " 
 
T THE MONAKCHIOAL CONSTITUTION 4S 
 
 the triumphal insignia of the Roman magistrate were but the 
 revival of the ordinary adornments of the king^ is extremely- 
 probable ; for the crown, the toga pida (a development of the 
 purple robe),^ 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 mmi&ra of the burgesses.^ "But a large portion 
 of the public domain was more peculiarly set apart for his own 
 private use.* This crown-land must have been worked mainly 
 by the king's own clients, who held it precario from him;^ 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.^ There is rather more to be said for the theory 
 of divine right. Romulus is the son of a god and awaits the 
 verdict of heaven before he assumes his rule. Numa, his 
 successor, insists that the same verdict shall be appealed to.' 
 But, if the taking of the auspices be the sign of a divine origin, 
 
 ' Dionys. iv. 74. 
 
 2 Festus p. 209 "Picta quae nunc toga dioitur purpurea ante vooitata est 
 eaque erat sine pictura." It was already picta (Si.dxpv<ros) in Polybius' time 
 (Polyb. vi. 53). ' Liv. i. 56. 
 
 * "Arvi et arbusta et pascui lati atque uberes" (Cio. de Hep. v. 2, 3). Cf. 
 Liv. ii. 5. " p. 8. 
 
 ' Cio. de Rep. ii. 12, 24 "Nostri illi etiam turn agrestes viderunt virtutera 
 et sapientiam regalem, non progeniem quaeri oportere." Cf. App. B.C. i. 98, 
 
 ' Liv. i. 7 and 18. 
 
46 ROMAN PUBLIC LIFE chap. 
 
 then everything in Eome proceeds almost equally from the gods. 
 Prohably 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 Eoman 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.^ 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 {oAidoritas patrum).^ 
 
 In the expression of these views the Eoman 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 Eepublic 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 
 Eepublic, 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 Eepublic, a form which the hypothesis of mon- 
 archical election adopted by Eoman antiquai-ians 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. 
 
 ' Liv. i. 17 ; Cic. de Rep. ii. 17, 31. 
 
 ' The interregnwm, though only an occasional office in the Republic, is repre- 
 sented as an invariable part of the procedure in the transmission of the kingly 
 power (Liv. i. 47). 
 
I THE MONARCHICAL CONSTITUTION 47 
 
 In the two definite survivals of the Eoman monarchy election 
 was not recognised j the dictator was nominated by the consul, 
 not by his predecessor, for it was only an occasional ofiB.ce ; and 
 the rex saororum was nominated by the pontifex maximus,^ 
 no longer by the preceding rex; for this oflSce simply con- 
 tinued the priestly functions of the king, the religious headship 
 being vested in the pontifex. This oldest principle of appoint- 
 ment survived in Eepublican Eome 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.^ 
 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 ofi&ce, and substitute for election the principle 
 of nomination, we must consider that it was the right, and 
 probably the duty, of the king of Eome 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 interregnvm is said by tradition to have dated from the first 
 vacancy in the regal ofiice, after the death of Eomulus.^ 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 paf/res,"^ and 
 we are told that this was from the first interpreted to mean, 
 not to the comitia cv/riata, but to the patrician Senate. The 
 earliest interregrmm 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 inierreges. 
 The first step was the division of the Senate into decwiae ; ^ 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)fi The rule is represented 
 as collegiate, the whole decury possessing the imperium, while 
 
 ^ Dionys. v. 1 ; Liv. xl. 42. 
 
 2 Tao. Aim. i. 14 and 81 ; Dio Cass. liii. 21, 7 ; Iviii. 20, 3. 
 8 Cic. de Rep. ii. 12, 23 ; Liv. 1. 17 ; Dionys. ii. 67. 
 * [Qc] ad Brvt. i. 5, 4. 
 
 ° Cf. Serv. in Aen, vi. 808 " Romulo raortuo cum . . , Senatus . . . regnasset 
 per deourias. " ' Dionys. ii. 57 SMK\Tjpii)(rd/ievoi. 
 
48 ROMAN PUBLIC LIFE chap. 
 
 the individual who ruled for five days had the fasces and the 
 external emblems of the royal power.^ In later times we shall 
 see that, though the interregnum was retained, the whole pro- 
 cedure 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, nominat- 
 ing the king.^ 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 inter- 
 rupted through unforeseen causes, and there was no definitely 
 designated successor.^ 
 
 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 (aiictoritas patrum) is mentioned 
 in connexion with all the transmissions of the supreme oflice.* 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 out- 
 come 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 appoint- 
 ment 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 Eepublic under the title of the lex ewriata, a 
 formal sanction always required for the ratification of an 
 
 • Dionys. ii. 57 rot^ \axoOcn d^Ka Trpiirois aweSuKav Spx^'" ''^s iroXews tV 
 aiTOKp&Top dpxfl" ■ Liv. i. 17 "decern imperitabant, unus cum insignibus 
 imperii et liotoribus erat. " 
 
 ^ 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. 
 
 5 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 oondicionem " (such as hereditatis aditio, 
 tutoris datio), and which " in totum vitiantur per temporis vel oondicionis 
 adjeotionem" (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 d 29) 
 
 * Liv. i. 17, 22, 32, 41, 47. ^ V- I- 
 
I THE MONARCHICAL CONSTITUTION 49 
 
 invpeiium already assumed.^ It is said to have had' this 
 character even in the time of the monarchy, and this was thought 
 to he shown by the fact that the king himself proposed the 
 lex curiata which was to give the sanction for the exercise of 
 his own powor.^ 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 consj^tutionally, withheld, 
 as it was by King Servius during the early part of his reign.* 
 
 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.* A parallel for this seemed to be furnished by 
 Eepublican usage, where the lex was taken by magistrates already 
 elected as a necessary preliminary to the exercise of the invperium. 
 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 awriae. 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 imperivm 
 which was not sanctioned by these two acts of Senate and 
 people — the expressed will of the one and the declared alle- 
 giance of the other — was regarded by later authorities as 
 unconstitutional.^ 
 
 ' Cic. de Leg. Agr. ii. 10, 26 ; ii. 11, 28 ; ad Fam. i. 9, 25. 
 . ^ Cic. de Rep. ii. 13, 25 " Numam . . . qui . . . quamqiiam populus curiatis 
 eum oomitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit." 
 
 ' Liv. i. 41 "Servius, praesidio firmo munitus, primus injussu populi, 
 voluntate patrum regnavit." 
 
 * Cio. deRep. ii. 17, 31 "TuUum Hostilium populus regem, interrege rogante, 
 oomitiis curiatis creavit, isque de imperio suo . . . populum consuluit cnriatim. " 
 
 " Tlie last injushia dmivrms of Rome ruled "neque populi jussu neque 
 auctoribus patribus " (Cio. de Rep. ii. 24, 45 ; Liv. i. 49). 
 
 E 
 
50 ROMAN PUBLIC LIFE chap. 
 
 There was also a religious aspect of the king's appoint- 
 ment. His assumption of power was regarded as incomplete 
 until it had been shown that the gods sanctioned the rule which 
 he had assumed. This was done by the first taking of the 
 auspices ^ — a ceremony observed by magistrates of the Republic 
 before entering on the exercise of their office. This was the 
 final test for the right to exercise secular power ; but the king's 
 position as high -priest of the community was supposed to 
 require another initiatory act. 
 
 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 speciio ; ^ in 
 the Eepublic it belonged to magistrates as such, and was never 
 regarded as a merely priestly function. In the special inaugura- 
 tion, 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,^ 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 Eepublic had a special inauguration * 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 
 
 ^ Thus Komulus takes his own auspices on the Palatine (Liv. i. 6). 
 
 " p. 39. 
 
 ' Liv. i. 18 "de se . . . deos consuli jussit. " 
 
 * Labeo ap. Gell. xv. 27, 1 ; Liv. xl. 42, 8. 
 
1 THE MONAROHIOAL CONSTITUTION 61 
 
 been first sundered during the Eepublic. But tradition^ 
 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 sacerdotwn);^ the religious 
 duties of this rex point to the fact that the king's functions 
 were a regular ailtus, not the occasional religious duties of a 
 Roman magistrate,^ while his wife, the regina sacrm-um, had her 
 own simultaneous sacrifices.* 
 
 But the position of first priest did not in the Eepublic 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 pontiflF," ^ another describes the 
 same king as instituting five pontiffs,^ and we are further told 
 that, before the lex Ogulnia (300 B.C.), the college consisted of four 
 members.^ The discrepancy between the two last accounts has 
 
 ' Dionys. ii. 14 ; iv. 74 ; Plut. Ti. Gracch. 15. 
 
 '^ Festus p. 185 ; Labeo np. Gell. xv. 27 ; Ov. Fasti ii. 21. 
 
 ' This is shown by his saorifioes on the Kalends and on the Nones {sacra 
 nonalia) and his oflfering 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). 
 
 * Festus p. 113 ; Macrob. i. 15, 19. 
 
 • Liv. i. 20 " Numa Pontiflcem . . . Numam Maroium M. f. ex patribus legit, 
 eique sacra omnia exscripta exsignataque attribuit, quibus hostiis, quibua diebus, 
 ad quae templa sacra fierent, atque undo iu eos sumptua peounia erogaretur. Cetera 
 quoque omnia publioa privataque sacra Pontiflcis soitis subjecit, ut esset, quo 
 consultum plebes veniret : ne quid divini juris, negligendo patrios ritus, peregrines 
 que adsciscendo, turbaretur, etc." But afterwards (in 449 B.o.) Livy (iii. 64) 
 implies the existence of a college, without mentioning its in.stitution. Cf. iv. 44. 
 
 " Cic. de Rep. ii, 14, 26. ' Liv. x, 6. 
 
52 ' ROMAN PUBLIC LIFE chap. 
 
 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.^ 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,^ 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. Eomulus 
 appoints the augurs ; ^ Numa institutes the three great Flamines, 
 the Salii, and the Pontifex, although most of the important 
 ceremonies of religion are performed by himself personally.* 
 Consequently we may conclude that the appointment of special 
 individuals to these priesthoods must have been a part of th? king's 
 office.* 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 Eepublic) 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 augiu-s, who 
 cultivate the science, not the mere ritual of religion, and who 
 have no possible connexion with the king's household arrange- 
 ments. 
 
 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. 
 
 ' Bouoli^-Leoleroq Les Pontifes de Vancienne Rome p. 9. That the king was 
 pontiff is stated by Plutarch [Nuvm 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. 
 
 * Liv. i. 20 (p. 51 n. 5) ; of. Ambrosch Studien p. 22. 
 ' Cic. de Rep. ii. 9, 16 ; de Div. i. 2, 3. 
 
 * Liv. i. 20 " Turn sacerdotibus creandis animum adjeoit, quamquam ipse 
 plui'ima sacra obibat, ea maxima quae nunc ad Dialem flaminem pertinent." 
 
 " As, e.g., the nomination of Flamines belonged to the Latin dictator (Ascon. 
 in Milan, p. 32). 
 
I THE MONARCHICAL CONSTITUTION 53 
 
 One is purely religious and ritualistic and is expressed in the 
 control of piiesthoods, 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 
 Koman state with other independent communities and forms the 
 international law of the period. . 
 
 (i.) The control over priesthood and cuUus 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 Eepublican 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 juris- 
 diction 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 (cactus) for the god, he became free from 
 the paternal power,^ and the civil authority could not compel 
 him to take an oath.^ The persons of the Vestals were in- 
 violable ; * 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 
 
 ' Gaius i. 130. The same was the case with the Vestal (Gell. 1. 12). 
 
 2 For the Flamen see Liv. xxxi. 50 ; Festus p. 104. For the Vestal, Gell. x. 15, 
 
 3 Plut. Nvma 10. 
 
54 EOMAN PUBLIC LIFE chap. 
 
 were isolated from the mass of the people with privileges and a 
 jurisdiction all their own. 
 
 The control of the cuUus, 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.^ 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 puhlica, 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 hyfas 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 Eoman 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,^ 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 Eepublican 
 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 unin- 
 
 " Liv. i. 20 (cited p. 51 ). 
 
 " Supplicium, from sub-placo, death as a sin-offering (Festus p. 308 "sup- 
 plioia . . . saorifioia a suppHoando ") ; castigatio ("oastum agere") purification 
 through atonement. On the other hand poena, multa, talio bear witness to a 
 theory of compensation and private vengeance. See Rein Oriminalrecht p. 39. 
 
I THE MONARCHICAL CONSTITUTION 65 
 
 tentional or in which mitigating circumstances were present,^ and 
 such was the violation of the chastity of Juno's person through 
 the touching of her altar by a paelex.^ In graver cases expiation 
 could only be accepted where there was no intent,^ as in the 
 wrong done to a god by swearing falsely in his name.* 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,^ the ill-treat- 
 ment of elders by their children,^ the pulling up or alteration of 
 boundary stones/ the destruction of a neighbour's corn by night.^ 
 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.^ 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 oif from all divine and, therefore, from all human 
 help, and his slayer was blood-guiltless. ^^^ 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 interdidio), 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 
 
 1 Liv. i. 26 ; Dionys. iii. 22 ; Festus pp. 297 and 307. 
 
 2 Festus p. 222 ; Gell. iv. 3. 
 
 ' Macrot. i. 16, 10 "prudentem expiare non posse." 
 
 ^ Cic. de Leg. ii. 9, 22. 
 
 ^ Dionys. ii. 10 ; Serv. ad Aen. vi. 609. 
 
 * Festus p. 230. 
 
 ' Dionys. ii. 74 ; Festus p. 368. 
 
 « Plin. H.N. xviii. 3, 12. 
 
 ' Bouchd-Leclercq Le,s Pontifes p. 196. In tlie lex saeraia whioli protected 
 the tribunes we meet with this distinction (Liv. iii. 56). 
 
 ^'' Festus p. 318 "At homo sacer is est, quem populus judioavit ob male- 
 fioium ; neque fas est eum immolari, sed qui occidit, parrioidi non damnatar." 
 This is the meaning of sacer as employed in the leges sacratae of the early 
 Eepublio (Liv. ii. 8 ; iii. 55). 
 
56 ROMAN PUBLIC LIFE chap. 
 
 was all-important, and in the early EepubUc 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 (Jsgis adimes) issued from the same authority, and 
 in one of their most frequent manifestations, the sacramentiim, the 
 procedure was distinctly religious.^ 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 t Here we are oil 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 
 Eome is powerless if the war commenced by Eome 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 com- 
 munity 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),^ as well as ceremonies for the conclusion of a 
 peace that was to bind the public conscience {fdes publica).^ 
 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.* Their chief functions were the 
 
 ' The sacramentiim (literally " oatli ") in the actio Sacramento is best explained 
 as an atonement {piaculmn) 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 saoramentum came to be considered a 
 simple wager. See Danz Der sacrale Schutz pp. 151 ff. 
 
 ^ Cic. de Rep. ii. 17, 31 " constituitque jus, quo bella indicerentur ; quod 
 per se justissime inventum sanxit fetiali religione, ut omne bellum, quod de- 
 nuntiatum indictumque non esset, idinjustum esse atque impium judicaretur." 
 
 ' Varro L.L. v. 86 " Fetiales . . . fldei publicae inter populos praeerant ; 
 nam per hos flebat ut jnstum oonciperetur bellum et inde desitum, nt foedeve 
 fides paois constitueretur. Ex his mittebantur, antequam oonciperetur, qui res 
 repeterent, etc." 
 
 * 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 faiium). 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 
 
I THE MONAKOHICAL CONSTITUTION 57 
 
 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 Eome. 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 {void) were offered to the native gods, and for these to be 
 valid they must be couched in a form prescribed by the pon- 
 tifical college.^ 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 Eome. He bribes them 
 with temples, offerings, and the honours of a special cult.^ 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.* The instances preserved of this devotio and 
 evocatio naturally date from the time of the Eepublic* 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 Eome. 
 
 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 TrSia-a dpxq, and exercised the imperium at their own 
 
 passage (i. 24) implies their earlier existence. Cicero attributes tliera to Tullus 
 Hostilins (Cic. de Rep. li. 17, 31). The ceremonies of the college are described 
 in Dionys. ii. 72 and Liv. i. 32. 
 
 ' 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 oonseoratasque habeatis ollis 
 legibus, qnibus quandoque sunt maxime hostes devoti ; eosque ego. . . do devoveo." 
 The site of such cities was cursed, as in Eepublioan times that of Fregellae, 
 Carthage, and Corinth. 
 
 ' 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 oivitatemqne . . . deseratis . . . proditique Eomam ad me meosque 
 veniatis, nostraque vobis loca templa. sacra urbs acceptior probatiorque sit." 
 
 ' Cincius ap. Arnob. iii. 38 "solere Romanes religiones urbium superatarum 
 partim privatim per familias spargere, partim publico consecrare." 
 
 ^ e.g. the evocatio at the siege of Veil, the devotio on the fall of Carthage. 
 
58 ROMAN PUBLIC LIFE chap. 
 
 discretion.^ 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.^ 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.^ 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.^ 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).^ In consequence 
 
 ' Plut. Ti: Oracch. 15 ; Tao. Ann. Hi. 26. See next citation. 
 
 " Tao. Ann. iii. 26 "nobis Eomulus, ut libitum, imperitaverat : dein Numa 
 relieionibua et divino jure populum devuixit, repertaque quaedam a Tullo et 
 Anco. Sed praecipuus Servius Tullius sanctor legum fuit, quis etiam reges 
 obtemperareut." 
 
 * Pomponius in Dig. 1, 2, 2 " et ita leges quasdara et ipse (Eomulus) ouriatas 
 ad populum tulit ; tulerunt et sequentes reges. Quae omnes oonscriptae extant 
 in libro Sexti Papirii, qui fuit illis temporibus, quibus Superbus Demarati 
 Corinthii liliua, 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 oomposuit." This code was commented on by Granius 
 Flaoous (Paul, in Dig. 50, 16, 144), a contemporary of Julius Caesar. C. Papirius 
 is said to have been pontifex wiaximus (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 /as (p. 54). 
 
 * Sail. Oat. 6 "imperium legitimum, nomen imperii regium habebant." 
 
 ^ " Eegium consilium " (Cio. de Rep. ii. 8, 14). The function of the Senate 
 was TTfpi Tracris Srov hi/ elariyrJTOU, ^(unXeis Siayiviiffxeiv (Dionys. ii. 14). 
 
I THE MONARCHICAL CONSTITUTION 59 
 
 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 " (jpraeteriti) 
 by the king.^ 
 
 Yet tradition attributes a deflniteness 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.^ The number, originally 
 100,^ was raised by successive steps to 300 before the close 
 of the monarchy.* The two obvious units of representation were 
 the curiae and the clang ; 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} 
 It was thus that the distinction between the older and the newer 
 clans was perpetuated in the procedure of the Senate ;■ ® 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 j 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. 
 
 ' Festus p. 246 " Praeteriti senatores quondam in opprobrio non erant, qnod, 
 lit reges sibi legebant sublegebantque, quos in cousilio publico haberent, ita post 
 ezactos eos consules quoque et tribuni militum consulari potestate conjunctissimos 
 Bibi quosque patrioiorum et deinde plebeiorum legebant." 
 
 2 p. 13. * Liv. i. 8. 
 
 * ib. 17 and 35 ; ii. 1. On the nature of this increase see Willems Le Slnat 
 p. 21. 
 
 » p. 13. ' p. 12. 
 
60 ROMAN PUBLIC LIFE chap. 
 
 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." ^ 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.^ 
 
 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 
 
 1 Liv. i. 32. 
 
 " Dionys. ii. 14. One of the privileges of the people was Tcpl iroXi/uitt 
 SiayiviixTKetv Srav 6 ^aaiKeds itp^. 
 
I THE MONARCHICAL CONSTITUTIOIT 61 
 
 disposal of the booty taken in war and of the conquered lands 
 was one of these,^ and the statements which record this right find 
 support in Republican survivals. The control of the spoils of 
 war (at least of the movable portions) belongs to the Eepublican 
 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 consilmm 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 consilmm of some sort, is stated in the 
 charge brought by tradition against Tarquinius Superbus that he 
 neglected this essential guarantee of even justice.^ 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 ; * there military fitness would be chiefly looked to. 
 
 The chief of these delegates was the prefect of the city 
 (praefectm urbi), an alter ego left behind in the capital by the 
 king when he himself was absent in the field.* 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.^ In criminal jurisdiction a distinction was believed 
 
 ^ Cio. de Sep. ii. 9, 15 " Cum ipse (Eomulus) nihil ex praeda domum suam 
 reportaret, locupletare cives non destitit " ; ii. 14, 26 " ao primum agros, quos 
 bello Eomulus oeperat, divisit viritim civibus." Cf. Diouys. ii. 28 and 62. 
 
 ^ Liv. i. 49 " cognitiones capitalium rerum sine consiliis per se solus exercebat." 
 
 ' ib. 59 ; see p. 41. 
 
 * Tac. Ann. vi. 11 "namque antea, profeotis dome regibus ao mox magis- 
 tratibus, ne urbs sine imperio foret, in tenipus deligebatur qui jus redderet ac 
 subitis mederetur . . . duratque simulacrum, quotiens ob ferias Latinas prae- 
 ficitur qui oonsulare munus usurpet." Cf. Liv. i. 59 ; Dionys. ii. 12. 
 
 ^ Yet Livy and Dionysius represent the tribunus celerum as summoning the 
 assembly (Liv. i. 59 ; Dionys. iv. 71). 
 
82 • ROMAN PUBLIC LIFE chap. 
 
 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.^ This 
 may be the germ of a distinction which is said to have been per- 
 fected by Servius Tullius. Crimes affecting the public welfare 
 he tried himself ; wrongs done to private individuals he entrusted 
 to others.^ 
 
 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.* It is possible 
 that even in early Rome it was treated as a right, a faculty of 
 action (faeultas 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.* 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 pMicum. 
 
 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 
 
 ' Dionys. ii. 14 (amongst the powers of the king were) tSiv re AdiKriiidTaii rk 
 yAyiBTa jxiv airhv SiKdt;av, rk d' iXdrrova tois ^ovXevrais iviTpivav. It is 
 difficult, however, to determine whether the reference is to civil wi-onga or to 
 crimes. 
 
 ^ lb. iv. 25 iKeivos (Servius Tullius) dieXiiv dirb twv ISlutikHv {iyKXij/idTOiv) 
 ret drjfj.6(rLa, twv ^kv els rb KOivbv ^epdvriov ddLKTjfidruv aiiris iirotctTo ras 
 diayvd!<reis, tuv di IdKOTiKwv ISiiiras (ra^ev elvai SiKairrds, Spom KaX Kavdvas aiiTois 
 Tii|as, oBs aiJrds lypa\lie yifiom. The principle here described perhaps refers to 
 delegation rather than to the distinction between jus and judicium in civil process. 
 
 * For derivations of jus see Clark Pract. Jurisprudence pp. 16-20 ; Brisil 
 " Snr I'origine des mots designant le droit en Latin " in Nouvdle Revue Bi-sUrime 
 de ckoit vol. vii. (1883) pp. 607 sq. 
 
 * Dionys. I.e. 
 
I THE MONAECHIOAL CONSTITUTION 63 
 
 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 assist- 
 ance 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.'- Two such classes of delegates are attributed to the 
 regal period, the duumviri perduellionis and the quaestores parricidii.'^ 
 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,^ which 
 was believed to furnish the archetype of the provocatio. From 
 this story appears the belief, which is often stated by other 
 authorities,* 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.^ 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.® 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 ; ' 
 in some the people might have had a right to be judges in the 
 
 ' Liv. L 26. 
 
 2 Zonaras vii. 13 {who attributes their institution to Publioola) identifies the 
 quaestmres with the qtutestores parricidii, ot wpSiTOv /xiv ris Bavaaliiovs SUas 
 tSlKa^ov, &6ev Kal ttip vpotrriyoptav raiT'riv Sid, rets ivaKplffHS iffxriKOffi aal did, rrji' 
 T-^s d\ri8etas ix tCiv ivaKplaeoiv i-fp-tiaiv. Cf. Varro L.L. v. 81. Mommsen 
 {Staatsr. ii. pp. 523 sq.) thinks the financial quaestors as standing officials originated 
 with the Eepublio ; 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 saroitor or qimero to quaesivi, p. 537). Cf. Tac. Ann. xi. 22 (p. 81) ; Ulpian 
 in Dig. i. 13. ' Liv. I.e. 
 
 * Oic. pro AM. Z, 7 ; de Rep, ii. 31, 54 ; Festus p. 297. 
 
 " Liv. i. 26 "Si a duumviris provooarit provooatione oertato . . . auotore 
 TuUo, . . . 'provooo' inquit." 
 
 « ib. viii. 33. 
 
 ' Cf. Ihering ffeisi des rSm. Rechts i. pp. 257 ff. 
 
64 ROMAN PUBLIC LIFE chap. 
 
 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.^ In other spheres the king could judge alone ; the 
 p'ovocatio 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 ; ^ 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.' How far this royal jurisdiction was personal we 
 cannot say, but under all circumstances the king was the chief 
 source of the jus primtum, in so far as he and his pontiffs alone 
 knew the formularies of action,* 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 RepulDlic) the fundamental division of judicial pro- 
 cedure 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.^ Even in 
 Republican times the judex was chosen by consent of the parties.^ 
 He was an arbitrator between the litigants agreed to by a mutual 
 compact,' 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 
 
 ' 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. Gains iv. 93 (of the actio per sponsionem) " Provocamus 
 adversarinm tali sponsione." 
 
 ' " In this conflict of competence the position of the king was far more favour- 
 able 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 rSm. Bechts i. p. 258). 
 
 ^ " Jndioiis regiis " (Cic. de Rep. v. 2, 3). * p. 56. 
 
 ' Savigny System, vi. p. 287 ; Bernhoft Stoat und EecIU der KSnigsxeit 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 TuUius. 
 
 ° Cic. pro Gluent. 43, 120 " Neminem voluerunt majores nostrl non modo de 
 existimatione cujusquam, sed ne pecuniaria quidem de re minima esse judicem, 
 nisi qui inter adversaries convenisset." 
 
 ' Ihering Oeist des rSm. Rechts i. p. 169. 
 
I THE SERVIAN CONSTITUTION 65 
 
 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 jvdex 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 inde- 
 pendence. Although their tenure of the soil might be pre- 
 carious, 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 TuUius, 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 jwe quiritinim 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 ; ^ and vnth 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 
 
 ' Dionys. iv. 22 i Si TiWiOS Kal rots ^evSepovfuivocs t&v BepaTifTUv . . . 
 Iierix'^i.v t^s IffOwoXirelas ijriTpe^e . . . Kal Tr&VTWV diriSuKe Tuv KOiv&v airoTs 
 /^eT^Xeiy, Sv rots &Wois Sjj^otucoij, ^ 
 
 F 
 
66 ROMAN PUBLIC LIFE chap. 
 
 the readiness with which the change seems to have been accepted 
 by the Patricians^ — was to impose burdens on the whole plebeian 
 community. A recognition of the rights of property was a neces- 
 sary 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- 
 Koman world. Many of the Plebeians had no clans ; they could 
 not, therefore, be made members of the three primitive tribes,^ 
 and when the change was first mooted, it was, probably for the 
 same reason, thought impossible to make them members of the 
 curiae.^ 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 1 It is established that the tribes, which are specially 
 described as local,* contained only that land which was subject 
 to quiritarian ownership,^ 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,^ this view leads to the startling conclusion 
 
 1 The change, however, was not suppo.sed (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. 
 
 ^ 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. 
 
 ^ Dionysius (iv. 22) makes them at a later time members of the cwriae. 
 
 * Dionys. iv. 14 ; Gell. xv. 27. 
 
 " Cic. pro Flacco 32, 80 "sintne ista praedia censui censendo, habeant jus 
 civile, sint neone sint mancipi ! ... in qua tribu denique ista praedia censuisti ? " 
 The ager puMicus 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). 
 
 ' Liv. i. 43 " Quadrifariam urbe divisa, regionibusque et collibns, qui habitaban- 
 tur, partes eas tribus appellavit " ; Dionys. iv. 14 6 TiiXXios, ^ireidT/ roiJs eTrrd 
 
I THE SEEVIAN CONSTITUTION «7 
 
 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 puMicus, was held by some larger 
 corporation such as the gens?- 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 land-owners, 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 DionysiuK 
 that besides these four tribes, which comprehended only the 
 city, Servius established twenty -six others which took in the 
 country districts.^ 
 
 The view that the four tribes ^ 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 possi- 
 bility of their having been engrafted in some way on the older 
 divisions of the Bamnes, Titles, and iMceres.^ Local creations of 
 an artificial character, independent of juxtaposition, are not 
 
 \li(povs hi Tdx^t irepiiXa^ev, els rirrapas fiotpas SieXiiv ttiv trbXiv . . . rerpii/pvXoi' 
 iirohiae tt)v iriXic etvai,, rplipvXov oSirav rias. 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 hy the pomerimn." 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 iemtorium of the city. See p. 68. 
 
 ' Homms. Staatsr. iii. p. 168. Eome was at this time a great commercial 
 state (of. treaty with Carthage, 509 B.C.). That such a primitive institution as 
 gentile tenure could have existed at this time is inconceivable. 
 
 ^ Dionys. iv. 15 SieTKe Sk koL ttjv x'^P"'" ^Tctcra!', lis ij^v $(£/3i6s (p^inv, ds 
 fialpas ?| T€ Kal dKoacv, fis Kal airas (taXei <))v\ds, Mommsen {Staatsr. iii. p. 169) 
 seems to lean to the view that those country districts, comprising land not in 
 quiritarian ownership, vreiepagi. 
 
 ^ Sucusana (or Suhurana), Palatina, Esquilina, and Oollina. See p. 3. 
 
 * 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 Colliue." 
 
68 ROMAN PUBLIC LIFE chap. 
 
 unknown in early legislations; they are found in the almost 
 contemporary work of Cleisthenes of Athens. But even this hypo- 
 thesis 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 Eomcmus was again regained, a new organisation 
 was adopted. The territory outside the walls was parcelled out 
 into country tribes,'^ and these grew in number as Eome's con- 
 quests 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 indi- 
 viduals were registered in that tribe in which their land-allotment 
 lay,^ there is no good reason for accepting the current belief that 
 the landless citizen was not enrolled in a tribe.^ 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 lights which it subsequently conferred.* 
 
 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 organ- 
 isation recognised one primary and two secondary principles as 
 the basis of classification ; the first was wealth, the second age, 
 
 ' Distriota like Ostia, which must have belonged to the Servian tribes, now 
 formed parts of the new creations (see p. 67). 
 
 ^ Serviua is said for this reason to have prohibited transference of domicile or 
 allotment. Dionys. iv. 14 (Servius) rods dv8piiirovs Ira^e Toiis iv ixdiTT-ji /lolpf 
 tCiv TSTT&ptiiv olKovvTas, SxTTTep K(afir}Tas, fiTire fieTdKafi^dpeLV ir^pav o(K7}ffiv jxijr 
 dXKoSt wov <Tvi/Te\eiv. ' Momma. Staatsr. iii. pp. 182, 184. 
 
 * Laeliua Felix ap. Gell. xv. 27 " Cum ex generibus homiinim snffraglnm feratur, 
 ' curiata ' comitia esse, cum ex censu et aetate ' centuriata, ' cum ex regionibus et 
 locis, ' tributa.' " 
 
I THE SERVIAN CONSTITUTION 69 
 
 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;^ 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.^ 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 ^;hey 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,^ and the 
 state was interested in all that was duly owned and was properly 
 the subject of assessment (res censui censendo) ; ^ 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 (pecimia). 
 
 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 seztantarii, being respectively 100,000, 
 75,000, 50,000, 25,000, 11,000 asses. 
 
 ' Servius himself is credited with the introduotion of aes signaivm — carefully 
 adjusted copper weights stamped by authority. Plin. ff.JV. xviii. 3 "Servius rex 
 ovum boumque effigie primus aes signavit." Momrasen ( RSmisches Munsswesen) 
 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 "• medium of barter the weight would be suflScient. Mommsen's opinion is 
 (op. oit. p. 175) that a regular cOpper coinage was not introduced at Eome until 
 about the period of the decemviri (450-430 B.C.), and more recent numismatists 
 pronounce even this date to be too early. ^ Momms. Staatsr. iii. p. 247. 
 
 ' The existence of the guilds in regal times (Plut. Ntim. 17) rather proves than 
 disproves the competing manufacture by slaves. 
 
 * Cio. pro Flaceo 32, 80. See p. 66. 
 
70 ROMAN PUBLIC LIFE chap. 
 
 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 (ceniuria), 
 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,^ 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.^ 
 
 ^ For this difference of armour see Liv. i. 43 ; Dionys. iv. 16, 17. It survived 
 into Polybius' time (Polyb. vi. 23 oi 5^ iwip ris fjivplas Ti/iii/n^yot SpaxM^s ivrl 
 rod Kapbia<pi\txKos (ri/v rots fiXXois a\vffid(i)Toiis irepLTiBevTaL dtbpaKas), 
 
 * Gellius vi. (vii.) 13 " 'Classici' dicebantur non omnes, qui in quinque ola,s.sibus 
 erant, sed primae tantum classis homines, qui centum et viginti quinque milia 
 aeris ampliusve censi erant. 'Infra classera' autem appellabantur secundae 
 classis oeterarumque omnium classium, qui minore summa aeris, quod supra dixi, 
 oensebantur " ; Festus p. 113 "infra olassem significantur qui minore summa 
 quam centum et viginti milium aeris censi sunt." 
 
 Belot {Hist. d. C'hev. Rom. i. 204, 205) thinks that the 125,000 asses mentioned 
 here was the figure of the lovfest census — the fifth class — at the time of the lex 
 Voconia (169 B.C.), mentioned in this connexion by Festus. The designation in 
 a.sses was still kept, but the as must now be multiplied by 10 (12,500x10 = 
 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 lav? referred to the census of the first 
 class, and that it was through an interpretation meant to limit its operation, when 
 
I THE SERVIAN CONSTITUTION 71 
 
 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.'- Such were the carpenters (fahri) 
 who formed two centuries, and the horn-blowers and trumpeters 
 (cornicinee and tiUcines) who formed one each. 
 
 THE SERVIAN CLASSIFICATION 
 
 The Oavaley 
 
 18 centuries, with no fixed property qualification. 
 
 The Infantry 
 
 1st Olassis — 100,000 asses (Livy and Dionysius),^ 120,000 asses (Pliny and 
 Festus).' 
 Seniores, 40 cent. \ an 
 Juniores, 40 cent. J ' 
 2nd Classis — 75,000 asses (Li v. and Dionys.). 
 Seniores, lOcent. "Igg 
 Juniores, 10 cent, j ' 
 Zrd Classis — 50,000 asses (Li v. and Dionys.). 
 Seniores, 10 oent.\nQ 
 Juniores, 10 cent. / ' 
 ith Classis — 25,000 asses. 
 Seniores, 10 cent. \„q 
 Juniores, 10 cent. / 
 5th Classis — 11,000 asses (Liv.), 12,500 (Dionys. 12J minae). 
 Seniores, 15 cent.lgQ 
 Juniores, 15 cent. / ' 
 Fabri — 2 cent, (voting with 1st class, Liv. ;' 
 
 with 2nd class, Dionys.) 
 Aecensi, comicines, tibicines, 3 cent. (Liv. ), 2 I 6 cent. (Liv.). 
 cent. (Dionys.) (voting with 4th class, 5 cent. (Dionys.). 
 Dionys.). 
 Capite censi, 1 cent. 
 
 Total, 193 centuries (Dionys.), 194 (Liv.). 
 
 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 (Sohol. 
 to Cio. Verr. ii. 1, 41, 104, p. 188 Orell.), i.e. 25,000 denarii (Dio Cass. Ivi. 10). 
 
 ' Plut. {Nwiii. 17) mentions riKTOvei and x"^"^'* amongst the collegia 
 (Momms. Staatsr. iii. p. 287 n. 1). ^ So too Polybius (vi. 23, cited p. 70). 
 
 ' Plin. H.N, xxxiii. 3 " Maximus census CXX a^sium fuit illo (Servio) rege, et 
 ideohaec prima classis." Festus p. 113 (cited p. 70). 
 
72 ROMAN PUBLIC LIFE chap. 
 
 THE CENSUS 
 
 As interpreted by Mommsen,* who holds that As interpreted by Belot,^ 
 the figures are given in asses sextantarii who holds that the 
 
 [i.e. osscs of two ounces weight — J of the figures are given in ass&s 
 
 libral as (the later sestertius) ]. Ubrales (the later ses- 
 
 tertii). 
 
 The older as 
 
 Later (ch-ca 269 
 
 B.C.) 
 
 
 (i denarius). 
 
 equivalent to ^ doiiariua. 
 
 
 \st Classis 40,000 
 
 100,000 
 
 
 100,000 
 
 2nd „ 30,000 
 
 75,000 
 
 
 75,000 
 
 3rd „ 20,000 
 
 60,000 
 
 
 50,000 
 
 Uh „ 10,000 
 
 25,000 
 
 
 25,Q00 
 
 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.' 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.* If, however, we believe in the originally military 
 character of the organisation, there seems no place for this 
 
 ^ Staaisreeht iii. pp. 249, 250. Boolch {Metrologisehe UntersudiAmgen p. 444) 
 also takes the view of the asses being sextantarii. He makes the qualifications in 
 terms of the libral cis and the a^ of two ounces respectively: 20,000 = 100,000, 
 15,000=75,000, 10,000 = 50,000, 5000 = 25,000, 2000 = 10,000. 
 
 ' Histoire des Chevaliers Romains (Table at commencement of vol. i.). 
 
 ' Festus p. 18 " accensi dicebantur qui in locum mortuorum militum subito 
 subrogabantur, dioti ita, quia ad censum adiciebantur " ; p. 369 "velati appella- 
 bantur vestiti et inermes qui exercitum sequebantur, quique in mortuorum militum 
 loco substituebantur." Of. p. 14 " adscripticii veluti quidam script! dicebantur, 
 qui supplendis legionibus adscribebantiir. Hos et accensos dicebant, quod ad 
 legionum censum essent adscripti. Quidam velatos, quia vestiti inermes 
 sequerentur exercitum." 
 
 * 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 12J minae Servius placed in one X6xos) ffTparelas re iiriXuae 
 Kal irdffTis el(T<j>opa.s iTolTjaev &Te\€ls. Cf. vii. 59 oUrot ffTpareLiov re ^irav 
 IXeidepoi ruv (k KaraMyov Kal et<r<(iopioi' tGiv Kwrh, Ti/n)/iOTa yevo/xivuv dreXt is kclI 
 5i' &fi^b) TavT 4v Tats ^T]<f>o(popiat$ dTifidraTOL. 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 attulissont, proletaries norninavit ; 
 ut ex lis quasi proles, id est quasi progenies civitatis, exspectari videretur. 
 lUanim autem sex et nonaginta oenturiarum in una centuria turn quidem plures 
 censebantur, quam paene in prima olasso tota." 
 
I THE SERVIAN CONSTITUTION 73 
 
 class which is not abeady 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,^ 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 dassici, 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.^ The others were the children - begetting citizens 
 {proletarii eives). 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 ca/pite 
 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.^ 
 
 The cavalry was an adaptation of the old patrician corps of 
 equites * to the new conditions. The six original centuries were 
 preserved and consisted as before of Patricians ; ^ they still bore 
 the names of the ancient tribes, and were called respectively 
 Titienses, Ba/nmes, Luceres, priores and posteriores.^ They continued 
 
 ' TJlpian in Fragm. Vat. 138 "ii qui In centuria accensorum velatorum 
 sunt, habent immnnitatem a tutelis et curis." 
 
 ^ The word is not technical enough to be used as an argument "that the classes 
 included only landholders. The favourite ancient derivation was from db asse 
 dando (Cic. de Rep. ii. 22, 40, see p. 72), whether for the payment of taxation 
 or for the furnishing of military equipment. 
 
 ' Oapite 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. I.e. ; Sail. Jug. 86). Aerarius, on the other hand, 
 seems to have preserved its old meaning of those excluded from the centuries 
 ■ — Ps. Asc. in Diiyim,. 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, tantumraodo ut pro capite sue tributi nomine aera 
 praeberet." * p. 41. 
 
 " It is not known when they ceased to be patrician ; Mommseu (Staatsr. iii 
 p. 254) thinks on the reform of the Servian constitution, circa 220 B.C. 
 
 « Liv. i. 36. 
 
74 ROMAN PUBLIC LIFE ohap. 
 
 to be known as the sex centuriae, or (after the centuries acquired 
 voting power) the sex mffragia?- 
 
 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 qualifica- 
 tion. This is explained by the fact that they are not a list of 
 men qualiiied 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 ^ (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.^ 
 
 Each of these centuries formed a troop of one hundred men 
 under a centmio,* and these eighteen centuries of Eoman knights 
 with public horses {eguites Bomani eguo 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 efiiciency for service. 
 
 This centuriate organisation seems to have little or no 
 connexion with the four Servian tribes,^ beyond the accidental 
 
 1 Cic. de Rep. ii. 22, 39. 
 
 2 Pestus p. 221 "paribus equis, id est duobus, Romani utebantur in proelio, 
 ut sudante altero transirent in siccum. Pararium aes appellabatur id, quod 
 eqnitibus duplex pro binis equis dabatur." 
 
 * Liv. i. 43 " ita pedestri exercitu ornate distributoqne equitum ex primoribus 
 civitatis duodeoim scripsit oenturias. Sex item alias oenturias . . . sub isdem, quihns 
 inauguratae erant, nomiuibus fecit : ad equos emendos dena millia aeris ex publico 
 data [i.e., as Livy understands it, 10,000 asses sextantaru= 1000 deuarii], et, 
 quibus equos alerent, viduae adtributae, quae biua mUia aeris in anuos singulos 
 penderent" [2000 asses =200 denarii]. Cf. Gains iv. 27. 
 
 ^ The number of the century was here fixed, and not, as in the case of the 
 classid, expansive. 
 
 ° Cf. Liv. i. 43 "neque eae tribus ad oenturiarum distributionem numerumque 
 quiequam pertinuere." There is no evidence, e.g., that each tribe furnished a 
 certain number of centuries. 
 
t THE SERVIAN CONSTITUTION 76 
 
 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 organisa- 
 tion) 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 {tributwm) was perhaps collected from the first by the 
 presidents of the tribes.^ 
 
 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 pre- 
 ponderance 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 cornUia of the curiae. 
 
 Firstly, it may have been the custom for the oath of 
 allegiance to the king, first expressed in the lex curiata,^ to have 
 been renewed at every taking of the census. This expression 
 of allegiance, asked for by the magistrate, was now a lex 
 centuriata.^ 
 
 Secondly, most of the popular utterances or leges of early 
 Kome must have referred to military matters, and convenience, 
 if not a sense of consistency, must soon have dictated that they 
 
 ' Tributwm, however, cannot be derived from tribus (as by Varro quoted p. 40). 
 The parallel words attribuere, contribuere, ultra tributa, etc. , seem to show that It 
 means something added to, conferred on, or collected for another, * p. 48. 
 
 " 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 volueruut ; nam 
 cum centuriata lex censoribus ferebatur, cum curiata ceteris patriciis magistratibus, 
 tum iterum de eisdem judicabatur." 
 
76 ROMAN PUBLIC LIFE ohap. 
 
 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, ■'^ this must soon have been 
 given by the centuries. The regal jurisdiction which the people 
 challenge by the provocatio is essentially military jurisdiction ; ^ 
 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 ^ would most appropriately be made ; it 
 was above all by this assembly, which represented the tax- 
 payers, that the war-tax (tributim) 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 Eepublic J for even the abolition of monarchy itself, revolu- 
 tionary 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 
 Eome 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;^ and Tarquin 
 the Proud, the last of the great Etruscan line, had broken through 
 the constitutional usages of the monarchy^ and had ruled without 
 challenging the allegiance of the people.^ 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 
 
 1 p. 43. " p. 63. 3 p. 60. 
 
 * Liv. i. 48 "id ipsum tam mite ao tarn moderatum imperium tamen, quia 
 unius esset, deponere eum in animo habuisse quidam auctoies sunt, ni scelus 
 iutestiuum liberandae patriae cousilia agitanti interveuisset." 
 
 » ib. 49. « Cic. de Rep. ii. 22, 44. 
 
I THE SERVIAN CONSTITUTION 77 
 
 made any one who aspired to monarchy an outlaw, '^ we may 
 Avithout 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? 
 
 * Cic. de Rep., ii. 30, 52 ; Liv. ii. 1 ; App. B.G. 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 tribimes was secured (p. 100). 
 
 * 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 praefedus v/rhi, who almost certainly had not the 
 jus rogandi (p. 61). Liv. i. 60 "duo consules inde oomitiis oenturiatis a 
 praefecto urbis ex commentariis Servii TuUii creati sunt, L. Junius Brutus et 
 L. Tarquinius CoUatinus." 
 
CHAPTEE 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 jvdices,^ while those 
 designations which denoted a single supremacy in the state, such 
 as dictator or magister popiili, were necessarily discarded. The 
 new magistrates were to hold office for a year and then to trans- 
 mit 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 ofi'ered themselves for this post, 
 although they could certainly decline to receive such names,^ 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.^ A far newer idea — one which distinguished 
 the consulship from the monarchy, and continued to differentiate 
 
 ' 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 ot indices, Varro L.L. vi. 88, who quotes from the com/mentarii considares 
 the formula used in summoning the cmnitia centwriaia, "qui exercitum impera- 
 turus erit, accenso dicito : ' C. Calpurni, voca in licium omnes Quiritea hue ad 
 me.' Accensus dicito sio 'Omnes Quirites in licium visite hue ad judices.' 
 ' C. Calpurni,' consul dioito, voca ad conventionem omnes Quirites hue ad me,' 
 Accensus dicito sic ' Omnes Quirites ite ad conventionem hue ad judices.' " 
 
 ^ See the section on the magistracy (p. 187). 
 
 ^ 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 patrvm auctoritas was still required to sanction each fresh appointment. 
 
CHAP, n GROWTH OF THE REPUBLICAN CONSTITUTION 79 
 
 it from the dictatorship subsequently created — was that of 
 colleagueskip,^ of two oflSicials 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. CoUeagueship, considered as the safeguard 
 against abuse of the imperium, grew to be so iirmly 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.^ 
 
 But this limitation was not sufficient. The unrestricted 
 military jurisdiction of the magistrate was felt not to be in 
 harmony with the new rdgime. 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 Eoman citizen. This kx Valeria 
 (509 B.C.) completed the popular jurisdiction which had been 
 growing up during the monarchy,^ and from this time no power 
 but the people has the right to pronounce the final death 
 sentence within the walls ; * 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 
 (miUtiae) y the limit between the spheres being originally the 
 pomerium, later the first mile-stone from the city.^ Without this 
 
 ' It it existed before it could have been only in the priestly colleges, but these 
 seem rather advising bodies to the king. 
 
 2 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. 
 
 ' Liv. ii. 8 (509 B.C.) " Latae deinde leges . . . ante omnes de provocatione 
 adversus magistratus ad populnin"; Cic. de Rep. i. 40, 62 "Vides . . . Tarquinio 
 exacto, mira quadam exsultare populum insplentia libertatis ; turn annul oonsules, 
 turn demissi popnlo fasces, tum provocationes omnium rerum " (i.e. the provocatio 
 became wiiversaZ instead of being confined to certain spheres). 
 
 ^ By this time the direct capital jurisdiction of the pontiffs had probably 
 become extinct. 
 
 " Liv. iii. 20 "neque provocationem esse longius ab urbe mille passunm, et 
 tribunoB si eo (lake Eegillus) veniant, in alia turba Quiritium subjectos fore con- 
 sulari imperio." But the question between the pomerivm and the first mile- 
 stone was in later times still a disputed one (Liv. xxiv. 9). 
 
80 . ROMAN PUBLIC LIFE chap. 
 
 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.^ 
 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,^ 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.* The "city 
 quaestors" (quasstores urbani), as they were subsequently called 
 to distinguish them from their provincial colleagues, were known 
 as guaestores parricidii^ 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.* The designation panicidii may, however, show that 
 they were employed in such criminal cases as did not directly 
 afi"eet the welfare of the state,* and by their side the duoviri 
 
 ' Cic. 1.0. 2 p g3_ 
 
 ' The quaestores parricidii and aerarii are identified by Zonaras (vii. 13), 
 following Dio. See p. 63. They were called quaestores, ot irpwrov iiiv rds 6ava,- 
 (rlfiovs diKas idlxa^ov (whence their title), inrepov Si Kal ttji/ twv koivQv xpVf^raii 
 dioUrja-w IXaxov. So Varro {L.L. v. 81), "quaestores a quaerondo, qui con- 
 quirerent publicas pecunias et maleficia." The ideutity of the two offices is 
 denied by Pomponius in Dig. 1, 2, 2, 22 and 23. 
 
 * Quaestores parricidii were mentioned in the Twelve Tables (Pompon, in 
 Die/. 1, 2, 2, 23). 
 
 " Liv. i. 26. 
 
 " They are mentioned in the trial of M. Volscius (459 B.O.) for an ordinary 
 criminal offence (Liv. iii. 24),. but also in the public trials of Sp. Ca.ssius in 485. B.C. 
 
II THE GROWTH OF THE REPUBLICAN CONSTITUTION 81 
 
 perduellionis reappear at intervals during the early Eepublic. 
 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.^ The public chest of Eome 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 Eome 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 Eoman character would lead us to believe that the 
 consuls had regular modes of acting through their quaestors, and 
 that these oflScials 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.^ 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 
 
 (Liv. ii. 41 ; Cic. de Rep. ii 35, 60), and of Camillus in 396 B.o. (Plin. H.N. xxxlv. 
 3, 13) ; but various accounts aie given of the procedure in these two trials. 
 
 ^ Plut. Public. 12 Ta/uetov /liv diridei^e riv tov Kpdvov vabv . . . ra/das Si rijj 
 S'^fiip Sio Tuiv viav ISuKcv iiroSei^ai. 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. 
 
 ^ Tac. Ann. xi. 22 " Sed quaestores regibus etiam turn imperantibus instituti 
 sunt, quod lex ciunata ostendit ab L. Bruto repetita. Mansitque consulibus 
 potestas deligendi, donee eum quoque honorem populus mandaret. Creatique 
 primum Valerius Potitus et Aemilius Mamerous sexagesimo tertio anno post 
 Tarquinios exactos, ut rem militarem comitarentur " (i.e. 447 B.o. ; hence 
 Mommsen, Staatsr. ii. p. 629, thinks the change was due to the Valerio-Horatian 
 laws of 449 B.O.). 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 cwriata. Another explanation is that the lex recited that the kings had 
 appointed quaestors and empowered the consuls to do so. Cf. Ulpiau in Dig. 
 1, 13. 
 
 G 
 
82 KOMAN PUBLIC LIFE cuap. 
 
 they were legally as unfettered as the king had been, and could 
 summon new members or omit to summon those already on the 
 list.^ 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 con- 
 stitution, 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 ; ^ but it does not appear that this choice could have 
 been often, if ever, exercised. The patrician elans 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),^ 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 — 
 
 1 Festus p. 246, cited p. 59. 
 
 " Zonaras (vii. 9) makes Servius Tullius introduce Plebeians into the Senate. 
 
 ' 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 : consoriptos 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 numeram senatorum trecentorum " (for these numbers cf. Plut. 
 Public. 11 Tois S' iyypaiphTas iir' airoS '\iyovcn.v iKarbv Kal i^iiKOVTa T4<T<ra.pas 
 yeviaBai). So adlecti, Festus p. 7 " adlecti dioebantur 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.") 
 
11 THE GROWTH OF THE EEPUBLICAN CONSTITUTION 83 
 
 expressed in the formula of summons "qui patres, qui con- 
 scripti (estis)" — was finally merged in the general appellation of 
 "conscript fathers."^ 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 
 Eepublic must be accepted for the origin of the term.^ 
 
 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 them- 
 selves free, is the patrum audoritas, 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 interregmim 
 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 ;^ 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 con- 
 nexion with finance. The new importance that foreign afiairs 
 assumed, in the constant wars in which Eome was engaged 
 with the nations of Italy, must certainly have strengthened its 
 control of this department. 
 
 ' Willems {Le Sinai ii. 39 ff.) makes patres conscripti simply equivalent to 
 " assembled fathers. " 
 
 ^ 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 " quern senatorem 
 concoquere civitas vix posset, regem ferret." ' p. 60. 
 
84 ROMAN PUBLIC LIFE chap. 
 
 But, on the whole, the earliest period of the history of the 
 Republic is the epoch of the power of the magistracy. The tradi 
 tions of the monarchy were so little forgotten that eight years 
 after the establishment of the Republic, kingship in a modified 
 form was again restored.-"^ 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^ 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 impermm, 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).^ 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 constitu- 
 tion. 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 
 
 ' Liv. ii. 18 ; Festus p. 198 ; Pompon, in Dig. 1, 2, 2, 18. 
 
 ' The title was, perhaps, originally praetor. This would naturally have heen 
 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 diotus populi magister esto." Cf. de Rep. 
 1. 40, 63 "Gravioribus vero beUis etiam sine collega omne imperinm 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, magistmm 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 Ttep. I.e.) ; (ii.) from dicto audiens (Varro L.L. v. 81 
 "quoi dicto andientes omnes essent") ; (iii.) from diciare (Priscian viii. 14, 78), 
 or (iv.) because they issued edicts (Dionys. v. 73). 
 
 ^Pompon, in Dig. 1, 2, 2, 19 " Et his dictatoribus magistri equitum 
 injungebantur sic, quo mode regibus tribuni celerum : quod officium fere tale 
 erat, quale hodie praefectorum praetorio, magistratus tamen habebantur legitimi." 
 
li THE GEOWfH OF THe REPUBLICAN OONSTITUTIOi^ it 
 
 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 institu- 
 tion, meant to control disobedient citizens as well as to oppose 
 the enemy,^ 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 Eepublican 
 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. 
 
 1 Cio. de Leg. iii. 3, 9 "Ast quando duellum gravius, discordiae oivium 
 esount, oenus, ne amplius sex menses, si senatus creveiit, idem juris, quod duo 
 consules, teneto"; Imp. Claudius Oratio i. 28 "Quid nunc oommemorem 
 diotaturae hoc ipso cousulari imperium valentius repertum apud majores nostros 
 quo in asperioribus bellis aut in civili motu diffioiliore uterentur ! " 
 
86 ROMAN PUBLIC LIFE chap. 
 
 A criminal case was an inquiry undertaken solely on the 
 initiative of the magistrate j 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 Eome 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.^ But there was no real 
 guarantee that even such questions could be forced from the 
 magistrate's court. The lex Falejia 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 Eome 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 
 
 ' Cicero {de Sep. ii. 31, 53) gives as the tenor of the first Valerian law "ne 
 quis magistratus oivem Bomanum adversus provooationem necaret neve verberaret." 
 Dionysius (v. 19) adds fij/iuoOK eis ■xpiiiJ.o.Ta to iiroKTeiveiv Ij juao-TiyoCv, and 
 Plutarch (PvU. 11) seems to give it the same wide scope. He also thinks that 
 Valerius fixed the multa supreina (I.e.), i.e. the largest fine the magistrate could 
 impose without appeal. These statements may, however, be deductions from the 
 later provocatio. 
 
II THE GROWTH OF THE REPUBLICAN CONSTITUTION 87 
 
 possibilities of judicial tyranny. For two hundred years (509- 
 304) the knowledge of the forms of procedure, the legis aciiones, 
 which formed the whole content of the civil law, was open to 
 the patriciaij pontiffs alone.^ 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.^ 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.^ Vows (vota), to be effective, must be 
 prescribed by them, and peculiarly efficacious were those fixed 
 forms of prayer (cerfae precationes) which they had dictated word 
 for word (de scripto pradre). 
 
 Against this phalanx of patrician power what forces could 
 the Plebeians boast ? 
 
 A certain amount of voting power in the comiiia was all 
 
 ' Pompon, in Die/. 1, 2, 2 (§ 3) " exaotis deinde regibus . . . omnes leges 
 hae exoleverunt itenimque coepit populus Komanus incerto magis jure et con- 
 suetudine aliqua uti quam per latam legem, idqiie prope qninquaginta (MSS. 
 "vigintl") annis passus est." After the Twelve Tables (§ 6) "ex his leglbus 
 . . . actiones oompositae sunt, quibus inter se homines disoeptarent : quas actiones 
 ne populus prout vellet institueret, certas soUemnesque esse voluerunt . . . 
 Omnium tamen harum et interpretandi scientia et actiones apud collegium 
 pontiflcum erant, ex quibus constituebatur, quis quoquo anno praeesset 
 privatis." " p. 64. 
 
 ' The later praetorian interdicts [de locia sacris, de mortuo infeirendo) are 
 really within the domain oifas and must at one time have been enforced by the 
 pontiffs. 
 
88 ROMAN PUBLIC LIFE chap. 
 
 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 smnmons and 
 expression of opinion on the patrician consuls, "^d 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.^ 
 But, even had these adverse circumstances been avoided, the 
 voting power of the Plebeians was small. The cornitia 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 aKke represented. 
 
 It has been proved beyond a doubt that at some period 
 during the first three centuries of the Eepublic Plebeians came 
 to be included in the cornitia ewriata.^ The change was the 
 result of two circumstances ; firstly, the perfect equality of 
 private rights between the members of the two orders — adroga- 
 tion 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 cwiales ; 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 cornitia 
 depended neither on land or wealth, but simply on personal 
 membership of a cwia, which was common to all the citizens. 
 But it is the very comparison of such a body with the thoroughly 
 timocratic organisation of the cornitia 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 
 
 ' p. 78. ' Mommsen Staatsr, iii, p. 93. 
 
II THE GROWTH OF THE REPUBLIOAIir CONSTITUTION 89 
 
 by the comitia curiata in historical times will be described else- 
 where. Its most distinctive right — the lex cwriata — 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 eenturiata 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 Eoman 
 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^ 
 qitaestoritLs) ; 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 
 
90 ROMAN PUBLIC LIFE chap. 
 
 state domain {ager publicus), and of allowing it to be lield in 
 usufruct (pccwpatio) by squatters who paid to the state for their 
 privilege a proportion of the produce (yedigal), 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 j and the theory was 
 started, or confirmed, that in this case Patricians alone could be 
 its occupants,^ a privilege that had probably originated with 
 the assumption that only the conquerors of the land could share 
 in the spoils of war.^ 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 main- 
 tenance 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.^ When the prescribed period had elapsed, the debtor and 
 
 1 p. 35. 
 
 ^ The privilege could not have beeu based on quiritarian ownership, since this 
 tenure was precarious. 
 
 ' 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 mancipatioTies Jlduciae caum 
 (Bnins Pontes), 
 
n THE GROWTH OF THE REPUBLICAN CONSTITUTION 91 
 
 Ms 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 Eoman public law,^ and the nexus remained 
 a burgess.^ 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 Eoman 
 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 injedio) and brought before the consul, by whom, if no 
 champion {vindex) presented himself to contest the debt, he was 
 bound over (addidus) 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 
 (mmdinae). 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.* If there were 
 
 ' Except as a penal measure ordained by the state. The Jurem mam/estvm 
 according to Gellius (xx. 1), "in servitutem tradit" (lex) ; he is more correctly , 
 described as addictus by Gains (iii. 189). The incenms might be sold as a slave 
 (Gio. pro. Oaecin. 34, 99). Later a free man who collnsively 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). = p. 24. 
 
 ^ Gell. XX. 1 " Aeris confessl rebusque jure judlcatis triginta dies justi sunto. 
 Post deinde manus injectio esto, In jus duoito. Ni judioatum facit ant quis endo 
 eo in jure vindioit, seoum ducito, vincito aut nervo ant compedibus. ... Si volet 
 suo vivito. Ni suo vivit, qui eum vinctum habebit, libras farris endo dies dato. 
 Si volet phis dato." The addictiis like the nexus did not become a slave, but 
 still retained his position in his census and in his tribe (Quinotil. Decl. 311). 
 
92 ROMAN PUBLIC LIFE chap, 
 
 more creditors than one,^ 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 efibrts 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 Eome 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.^ 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 Eome, 
 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.* A fierce stand against the con- 
 scription 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).^ A plan, carefully thought out in the 
 
 ' In tlie 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. 
 
 ^ Liv. ii. 23 " Fremebant se, foris pro libertate et imperio dimicantes, domi a 
 oivibus captos et oppresses esse ; tutioremque in bello quam in pace, et inter 
 hostes quam inter oives, libertatem plebis esse." 
 
 ' ib. 27. • Dionys. vi. 45. 
 
11 THE GROWTH OF THE REPUBLICAN CONSTITUTION 93 
 
 coteries and gatherings that had preceded the campaign,' 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.^ 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 Ux centuriata perhaps 
 passed in the very year of the secession (494 B.C.). The office 
 of the trihuni 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,* 
 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 concilivm 
 
 ' Liv. ii. 28. The senators complain " nunc in mille curias contionesque (cum 
 alia in Esquiliis, alia in Aventino iiant concilia) dispersam et dissipatam esse 
 rem publicam." 
 
 ^ Varro L.L. v, 81 "tribuni plebei, quod ex tribunis militum primum 
 iribnni plebei facti, qui plebem defenderent, in secessione Crustumerina." 
 
 ' The principle of cooptation was said to have been recognised in the carmen 
 TOgationis of the tribunate, and in this case it was held that Patricians were 
 eligible. Liv. iii. 65 (449 B.o.) "Novi tribuni plebis in cooptandis oollegis 
 patrum yoluntatem foverunt. Duos etiam patrioios consularesque, Sp. Tarpeium et 
 A. Atemiam, cooptavere." But, with the disuse of this principle, the plebeian 
 qualification was observed. 
 
 * Cic. ap. Ascon, in Cornd. p. 76 " Tanta igitur in illis virtus fuit, ut anno 
 
94 ROMAN PUBLIC LIFE chap. 
 
 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 plehiscita) from the plebeian concilium. The first power, 
 that of offering assistance (auxilium) to any Plebeian ^ who feels 
 himself aggrieved by the decree of the magistrate, and suspending 
 this decree by the exercise of the "veto," was the raison d'Ure of 
 the tribunate. The tribune was created to meet the consular 
 imperium (contra consulare imperium),^ and the fact that he could 
 only exercise this power in person imposed on' him certain obliga- 
 tions. The tribune might not stay a night without the walls, 
 and the doors of his house were open day and night.' It was 
 doubtless through the insuflSciency 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* — changes which were ratified by the centuries 
 and the Senate. 
 
 But a negative control over the magistrates of the state must 
 be wholly inefiective 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 
 
 xvi. post reges exactos propter nimiam domiuationem potentium secederent, . , . 
 duos tribunos crearent. . . . Itaque auspicate postero anno tr. pi. comitiis ouriatis 
 oreati aunt." (For the numljer 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 PvMilia transferring the elections of the tribunes 
 to the tribes), " quae patriciis omnem potestatem per olientium suflfragia oreandi, 
 quos yellent, tribunos auferret." 
 
 ^ 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. 
 
 ^ Cio. de Rep. ii. 33, 58 " contra consulare imperium tribuni plebis . . . con- 
 stitutL" 
 
 '' Gell. xiii. 12 "(tribunis) jus abnootandi ademptum, quoniam, ut vim fieri 
 vetarent, adsiduitate eorum et praesentium ooulis opus erat. " Cf. iii. 2. Pint. 
 Qu. Rom. 81 iBev oi&' oUtas airoB KXeleaBai. i/eci/uorai Bipav, oKKb, Kal piicrap 
 dv^tpye Kal iJieB' T]ii.ipav, Smirep \i,p,^v Kal Karatpvyii toIs Beofihois. 
 
 * For the increase to four see Diodor. xi. 68 (471 B.C. in connexion with the lex 
 Pvililia) ; other accounts represent the original number as five (Ascon. l.c. p. 93, 
 and Livy ii. 33 ; two elected, three ooopted ; of. note on p. 93). The increase to 
 ten is assigned by Livy and Dionysius to 457 B.O. (Livy iii. 30 ; the tribunes 
 allowed the levy "non sine pactione tamen ut . . . decern deinde tribuni plebis 
 creaientur. Expressit hoc necessitas patribus " ; cf. Dionys. x. 30). 
 
II THE GROWTH OF THE REPUBLICAN CONSTITUTION 95 
 
 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 Koman 
 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 co«mto-*-arrest, imprison- 
 ment, 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 accompani- 
 ment 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 jtis of the tribunes extended only to Plebeians.^ 
 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 jurisdic- 
 tion, 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 
 
 ■" Liv. ii. 35 " oontemptim primo Marcius audiebat minas tribunicias ; auxilii, 
 non poenae, jus datum illi potestati ; plebisque, non patrum, tribnnos esse. " 
 Coriolanus was probably impeached before the Plebs as a hostis trilmmciae potestatis 
 in consequence of his advice that the tribunate should be abrogated (Liv. ii. 34). 
 See Eein Criminahecht p. 484. Cf. Liv. ii. 56 (471 B.C. ; the tribune seizes 
 some ndbUes who would not yield to his viator) " Consul Appius negare jus esse 
 tribune in quemquam, nisi in plebeium ; non enim populi, sed plebis, eum magis- 
 tratum esse." 
 
96 ROMAN PUBLIC LIFE chap. 
 
 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 con- 
 templated 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 assem- 
 blies 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 tri- 
 bunate, under the presidency of the tribune Sp. leilius.^ 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 forth- 
 coming, 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 
 
 ' Dionys. vii. 17 Sri/idpxov yvii^i-qv iyopeiovrot iv SinMfi firjSels \eyiT(a /iriSh 
 ivavrlov ji-qSk /ieo-oXa^elrM rbv \br/ov. ikv Si m irapb, raSra irof/ia-ii, did&ru tois 
 Sri/iApxoi-s iyymirhi alTTjdels eh iKnaiv ^s &v indanv airif jjifilas. Any one who 
 does not give securities {iyyvriTat) is to be punished with death Kal ri, xfy^imj' 
 airrov lepci, (ittw. tuv S' &iJ.(j>ia-priToiiiTUii irpbs rairas Tas ^Ti/ilas al xpiffeis 
 la-TUirav iwl rov Siifiov. Cf. vi. 16, and Cio. pro Seat. 37, 79 " Fretus sauctitate 
 trihunatus, cum se non modo contra vim et ferrum, sed etiam contra verba atque 
 ioterfationem legibus sacratis esse armatnm putaret." 
 
n THE GROWTH OF THE REPUBLICAN CONSTITUTION 97 
 
 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,^ 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.* The same procedure must be imagined for 
 any plebiscita, which refer to matters affecting the whole com- 
 munity, 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, nomi- 
 nated successors and submitted their names to the Plebs. The 
 differences were that the voting was by curiae and not by 
 centwies, that the patrvm 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 ^ 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,* who bore the same 
 
 ' p. 66 note 5. 
 
 " Dionys. z. 31, 32 ; see Mr. Straohan-Davidson in Smith Diet, of Antiq. s.v. 
 plebiscitum, ^ p. 39. 
 
 ^ Dionys. vi. 90 &vdpas e/c tup STifioriKuJv 5i5o Kad^ ^Koarov iviavrhv diroSeiK- 
 v6vM Toits iirtiper^crojiTas rois SiiiJuipxots Sffiav hv Siiiii/Tai Kal SlKas, ds &v 
 iirirp^^tavTOi 4K€ivot, KpLvovvras lepwv re Kal STjfioffiuv Tb-jruv Kal rrjs Karh tt]v 
 dr/opi.v eier-qplas iiriiJ,ekriaop,hovs : Gell. xvii. 21 " tribunes et aediles turn 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. " 
 
 H 
 
«8 ROMAN PUBLIC LIFE chaj 
 
 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 con- 
 cerned 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.^ 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.^ After the tribunes had gained criminal 
 jurisdiction, they assisted them as delegates.^ 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 super- 
 vision 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.* 
 
 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 appoint- 
 ment which is known to us. The office was legalised with 
 the tribunate, and its holder possessed the same personal 
 
 ^ Dionysius (I.e.) suggests that they originally bore another title. Pomponius 
 (1.0. ) 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 privataa procuraret "), a derivation which Mommsen (Staatsr, 
 iL 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 Boman. For a different view of. Ohnesseit 
 Ztschr. dm- Savfigny-stiftvmg 1883, pp. 200 sq. 
 
 ^ Plut. CoHol. 18 (the tribune Sicinnius) Tpotrcra^e tois dyopai'dfioLs dvayaySyras 
 airbv itrl t^v &Kp(ip ei$ds &ffa,i /caret r^s inroKei^Tj^ ^Apayyos. So later in the 
 trial of P. Scipio. Liv. xiix. 20 ; xxxviii. 52. 
 
 2 Liv. iii. 31 (456 B.O. ; the consuls sell booty taken from the Aeqni) 
 "itaque ergo, ut magistratu abiere . . . dies dicta est, Eomilio ab C. Calvio 
 Cicerone, tribuno plebis, Veturio ab L. Alieno, aedile plebis." 
 
 * 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). 
 
II THE GROWTH OF THE KEPXJBLICAN CONSTITUTION 9S 
 
 sanctity as the tribune, conferred first by oath and then by 
 law.^ 
 
 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 Eomans 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 imperivm and the aiispicia, and therefore could 
 not be protected by the law of treason (perduellw), which avenged 
 wrongs done to the state in the person of its magistrate. A 
 substitute must be found in a religious sanction. Perhaps Eome 
 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 revolu- 
 tion; 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 hom^ ^ in its later sense 
 
 ' Livy, however (iii. 55, cited note 2), represents the sacrosanctitas of the 
 aetlUes as being based only on law. 
 
 ^ Dionys. vi. 89. The sacrosanctitas of the tribune is guaranteed i'6/i(j) re Kal 
 6pK({). Cf. App. JS. 0. ii. 108 i} tGip 5i;/i(£pxwv dpx^ ^^P^ Kal S.(rv\os fjv ix vdfiov 
 Kal SpKov. iraXttioB. Foi these two grounds of inviolability see Liv. iii. 55 
 (restoration of tribunate in 449) " et cum religione inviolatos eos, turn lege etiam 
 feoerunt, sanciendo 'ut qui tribunis plebis, aedilibus, judicibua, deoemviris 
 nocuisset, ejus caput Jovi sacrum esset, familia ad aedem Cereris, Liberi Liberaeque 
 venum iret.' Hao lege juris interpretes negant quemquam saorosanctnm esse ; 
 sed eum, qui eorura cuiquam uoouerit, sacrum sanoiri. Itaque aedilem prBndi 
 ducique a raajoribus magistratibus : quod etsi non jure fiat (nooeri enim ei, cui 
 hao lege non liceat) tamen argumentum esse, uon haberi pro sacro sanctoque 
 
100 ROMAN PUBLIC LIFE chap. 
 
 of " an outlaw " for the whole community, and the aediles and 
 the plebeian decemviri were protected by the same ban. Yet the 
 Eoman jurists held that this law did not give sacroscmctitas, 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 concilivm. 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 majestasj " 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 ^ 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.^ 
 
 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 decem viral legislation 
 (451) the tribunate is engaged in efforts to gain a better repre- 
 sentation 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 plebiscitiim passed by Publilius Volero in 471, which 
 enacted that the concilium of the Plebs, instead of meeting as 
 
 aedilem : tritanoa vetere jnrejurando plebis, cum primum earn potestatem 
 oreavit, saorosanctos esse " (cf. Liv. ii. 33 " sacratam legem latam " on the Mons 
 Sacer). 
 
 1 Resistance to the will of a magislratus populi is not perduellio in later 
 Roman law, but rather vis. But resistance to the tribune is always majestas, 
 
 2 Dionys. vii. 17. See p. 96. 
 
11 THE GROWTH OP THE REPUBLICAN CONSTITUTION 101 
 
 before by curiae, should now meet by tribes (tributim)} As tbis 
 was a purely self -regarding ordinance, it probably did not 
 require the consent of Senate and people,^ 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.3 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 Bomanus 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 fribus, 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;* 
 they must have been named from the clan settlements and were 
 obviously the first created. It is afiirmed by Dionysius ^ 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.* The Plebs may have petitioned the consuls to 
 add one more to the divisions of the state; for it was they 
 alone who could eflfect 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 
 
 ^ Liv. ii. 56 (Publilius Volero) "rogationem tulit ad populum, ut plebei 
 magistratus tributis oomitiis fierent " (followed by the words cited on p. 94). 
 
 ' This is Livy's view (I.e.), "neo, quae una vis ad resistendum erat, ut inter- 
 oederet aliquis ex coUegio . . . adducl posset." 
 
 " 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 cwriaia. 
 
 * Aemilia, [Camilla], Claudia, Cornelia, Fabia, [GaleriaJ Horatia, [Lemonia], 
 Menenia, Papiria, [Pollia], [Pupinia], Romulia or Bomilia, 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) 
 
 ' Dionys, vii. 64. * Momms. Staatsr. iii. p. 153. 
 
102 EOMAN PUBLIC LIFE c«At. 
 
 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 ;^ but the history of the great change which placed 
 a democratic assembly of the Populus by the side of the timo- 
 cratic 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 condliwn 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 ;^ 
 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 
 
 ' See Appendix. 
 
 ^ Livy (iii. 9) says, "utvviri creentur legibus de imperio oonsulari scribendis.'' 
 Even if this expression is due to a misunderstanding of the title of the decemvirs, 
 " consular! imperio legibus scribendis " (Momms. Staatsr. ii. p. 702), it no doubt 
 expresses a fact. For the nature and object of the deoemvirate see Pompon, 
 in Dig. 1, 2, 2, 4 (of the appointment of the decemvirs) " datumque est eis jus eo 
 anno in oivitate siimmum, uti leges et corrigerent, si opus esset, et interpretarentur 
 neque provooatio ab eis sicut a reliquis magistratibus fieret " ; ib. (of the publica- 
 tion of the laws) " quas in tabulas eboreas perscriptas pro rostris composuerunt, 
 ut possint leges apertius percipi." Cf. Dionys. x. 1, 60. 
 
11 THE GEOWTH OF THE EEPUBLIOAN CONSTITUTION 103 
 
 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,i 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;^ 
 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. Mean- 
 while 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 com- 
 mission 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 com- 
 promise. Plebeians might be admitted; but, as a matter of 
 fact, the patrician influence was so strong that the first board 
 elected by the comitia centwriata appears to have consisted wholly 
 of members of that order.^ The appointment of the commission 
 
 ' Livy (iii. 11, 25, 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. 
 
 2 LiT. iii. 31. ' ib. 33 ; of. Momms. Slaatsr. ii. p. 714. 
 
104 ROMAN PUBLIC LIFE chap. 
 
 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 Patri- 
 cians, and stipulated only that certain privileges which they had 
 already gained by law should not be abrogated.^ 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.^ 
 The work was done within the year, and the code posted up on ten 
 tablets {tabulae) and published to the masses. The people were sum- 
 moned and told that the commission had created equal rights for 
 all,^ and the whole body of law was passed as a lex by the comitia 
 centwiata. 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.* 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.^ 
 
 Although the law of the Twelve Tables {lex duodecim tdbu- 
 larvm) 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 par- 
 ticular plebeian law was preferred. The reason was not any 
 regard for plebeian rights (the decemvirs re-enacted the rule 
 
 ' Liv. iii. 32 " postremo ooncessum patribus, modo ne lex Tcilia de Aventino, 
 aliaeque sacratae leges abrogarentur." As to the sacratae leges, the aedileshlp 
 would have gone with the tribunate ; and there was nothing more to be protected 
 by the leges sacratae. 
 
 ^ Their title was Decemviri consulari imperio legibus scribendis (Capitoline 
 Fasti). Cf. Liv. ill. 32 (" placet creari xvlros sine provooatlone, et ne qiiis eo anno 
 alius magistratus esset ") and Pompon, in Dig. (cited p. 102). 
 
 ' Liv. iii. 34 " se . . . omnibus, summis infimisque jura aequasse. " 
 
 * Dionys. x. 58 ; liv. iii. 35. 
 
 " Liv. iii. 57. The accounts of the material of the " Tables " vary. Livy 
 (I.e.) says "in aes incisas in publico proposuemnt " ; Pomponius (in Dig., cited 
 p. 102) says "in tabulas eboreas perscriptas" (perhaps roboreas or aereas, Kipp, 
 QueUenkunde des S.E. p. 8). It is possible that they were of wood. 
 
II THE GROWTH OF THE REPUBLICAN CONSTITUTION 105 
 
 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 effect- 
 ing 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 Eoman in its 
 caution and good sense, its respect for the past, which it disre- 
 gards 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." ^ Its rhythmical sentences were learnt by heart by 
 school-boys in Cicero's time.^ Elaborate commentaries were 
 written on it by the republican lawyer Aelius, and the imperial 
 jurist Gains, and by Labeo, who stands at the meeting-point 
 between the two regimes; 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 Koman legislation. 
 
 The Twelve Tables contained the ''whole body of Eoman 
 law " {corpus omnis jRomani juris),^ 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 departs 
 ments of law, private, criminal, and public. 
 
 The ordinances of private law embraced regulations as to 
 marriage and family relations, testamentary disposition, inherit- 
 ance, debt, and usury. The marriage recognised was the consen- 
 sual 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 com- 
 munity, was thus made universal.* The law also facilitated the 
 emancipation of slaves who had purchased their freedom and so 
 helped to create the wealthy freedman class.^ Perfect freedom 
 
 ^ Liv. iii. 34 "fons omnls pubUci privatique est juris"; Tao. Ann. iii. 27 
 " creatique decemviri et accitis quae usquam egregia compositae duodecim tabulae, 
 finis aequi juris." 
 
 ' Cic. de Leg. ii. 23, 59 " Discebamus enim pueri XII, ut carmen necessarium; 
 quas jam nemo discit." 
 
 8 Liv. iii. 34. * p. 19. ' Ulpian Reg. ii. 4. 
 
106 ROMAN PUBLIC LIFE chap. 
 
 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. "^ 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.^ At the same time usiu-y 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.* 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 sur- 
 vivals of the old religious penalties ; the man who destroyed 
 standing corn was hanged as an offering to Ceres,* 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.^ The same penalty was inflicted on the jvdex who had 
 accepted bribes;® whUe for perdmllio in. the form of "rousing 
 an enemy against the state or handing over a citizen to the 
 enemy " the death penalty was also enjoined.' Reference must 
 have been made to criminal procedure since the qimedores 
 parricidii were mentioned in the law.® 
 
 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." * In two other particulars they limited 
 
 1 p. 10. ■' p. 91. s Cato R.R. praef. 
 
 " Plin. S.JSr. xviii. 3, 12. » Cic. de Rep. iv. 12. « Gell. xx. 1. 
 
 ' Maroian in Dig. 48, 4, 3 "Lex duodeoim tabularum jutet eum, qui hoatem 
 oonoitaverit quive civem hosti tradiderit, capite puniri." 
 
 * Pompon, in Dig. 1, 2, 2, 23. See p. 80. 
 
 ' Cic. de Rep. ii. 31, 54 "ab omni jiidicio poenaque provocari licere indicant 
 XII Tabulae compluribus legibus." 
 
n THE GROWTH OF THE REPUBLICAN CONSTITUTION 107 
 
 the jurisdiction of the people. It was maintained that no law or 
 Sriminal sentence (for this took the form of a lex) should be 
 directed against a private individual i^rivUegia ne i/nroganto), and 
 it was laid down that no capital sentence could be passed except 
 " by the greatest of the comitia " (nisi per maximum comitiatwm),^ 
 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 noctwni) ^ which had presumably treasonable designs, per- 
 mitted 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.' 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.* 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 con- 
 stitution; 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 issua 
 
 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 
 
 1 Cic. de Lea, iii. 4. 11 <m/.^.^ = Ded. in Catil. 19. 
 
 ' This rule is said to have been t^en 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 prohibitioii of 
 interment within the city. Gaius finds also a golonian parallel to the actio 
 fim/iv/m regundormn ordained by the law (Dig. 10, 1, 13). 
 
 '' Liv. vii. 17 " in duodeoim tabulis legem esse, ut quodcumque postremum 
 populuB jussisset, id jus ratumque osset." 
 
108 EOMAN PUBLIC LIFE chap. 
 
 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 choos- 
 ing, 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 provocaiio 
 (which meant the dissolution of the decemvirate) and of the 
 tribunician power.^ 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-estab- 
 lished, and, as no plebeian magistrate existed, the unusual step was 
 taken of having the election conducted by the jpontifex maxirmis? 
 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,^ 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 Videriae 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 
 
 1 Liv. iu. 53. 
 
 " ib. 54 "ibi extemplo, pontifice maximo comitia habente, tribunoa plebis 
 creaverunt." 
 
 2 ib. "Coufestim de consulibus oreandis cum provocatione M. Duilius 
 rogationem pertulit." Such a resolutiou would not need confirmation by the 
 people, as, aftei" 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 consuUum) passing the act of amnesty, iil. 54 
 "Tribunatu inito, L. Icilius extemplo plebem rogavit, et plebs solvit, ne oui fraudi 
 esset secessio ab deceraviris facta." Tr. later Euman law amnesty resides with the 
 Senate. 
 
n THE GROWTH OF THE REPUBLICAN CONSTITUTION 109 
 
 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." ^ 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,^ 
 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 poTnerivm or, at the utmost, 
 the first milestone from the city.* 
 
 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.* Another gave 
 a more binding character to the formal resolutions passed at the 
 amciliv/n 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 contro- 
 verted question whether resolutions of the Plebs were binding on 
 Patricians ; ^ and that it did this by enacting that " whatsoever 
 the Plebs commanded by its tribes should bind the people (ut, 
 quod tributim plebes jussisset, populvm 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 im- 
 plication 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 
 
 ^ Liv. iii. 55 "ne quis uUum magistratum sine provooatione crearet, qui 
 creasset, eum jus fasque esset occidi : neve ea caedes capitalis noxae haberetur. " 
 
 " p. 79. ' p. 79. * p. 99. 
 
 ° Liv. iii. 55 " omnium primum, cum velut in controverso jure esset, tener- 
 enturne patres plebiscitis, legem centuriatis comitiis tulere 'utquod,'" etc. Cf. 
 Dionys. xi, 45. 
 
no ROMAN PUBLIC LIFE chap. 
 
 the Populus, through an intermediary channel, consuls or Senate.' 
 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 vaHd for those outside the corpora- 
 tion. 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.^ We can hardly con- 
 ceive 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 dvm ne quid ex publica lege comimpant} 
 From this time onwards, down to 287, whenever we find 
 plebiscita affecting matters of national interest or creating changes 
 in the constitution,* 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." ^ It was a mode by which the Plebs 
 
 1 Mr. Straohan-Davidson in Smith Diet, of Antif[. s.v. plebiscUum, and English 
 Historical Review Nos. 2 and 19. 
 
 2 p. 97. » p. 107. 
 
 '' Types of such laws between 449 and 287 B.C. are the lex Terentilia (462) 
 OanuUia (445), lAcinia (367), Ogulnia (300). 
 
 ' Liv. iii. 55 " M. Duilius deinde tribunus plebis plebem rogavit, plebesque 
 scivit : ' qui plebem sine tribunis reliquisset, qiiique raagistratum sine provooa- 
 tione creasset, tergo ac capite puniretur. ' " 
 
ti THE GROWTH OF THE REPUBLICAN CONSTITUTION 111 
 
 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.^ 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.^ 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 pat/res." ^ 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 mjRriage between the 
 orders was legalised.* The tribunes followed up their victory 
 
 ' IJv. iv. 1 "de conubio patrum et plebis C. Cauuleius tribunus plebis 
 rogationem promulgavit." 
 
 ^ See p. 39 and cf. Liv. iv. 6 ; the consuls (in a contio) gave as the official 
 reason "quod nemo plebeius anspicia haberet ; ideoque decemviros connbinni 
 diremisse, ne incerta prole anspicia turbarentnr." 
 
 ' Liv. iv. 1 " et mentio, primo sensim inlata a tribunis, ut altemm ex plebe 
 oonsulem liceret fieri, eo prooessit deinde, ut rogationem novem tribnni promul- 
 garent, ' ut popnlo potestas esset, seu de plebe, sen de patribus vellet, consules 
 faciendi. ' " 
 
 * 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 inoitabat." At last (Liv. iv. 6) "victi tandem patres, ut de conubio 
 ferretur, oonsensere." 
 
112 ROMAN PUBLIC LIFE chap. 
 
 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 Eoman genius for adapta- 
 bility, 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 Eome'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 con- 
 cession to the Plebs, it was decided to replace the consulship by 
 the office of military tribune with consular power {tribmius 
 militum consulari potestate)?- The change, permission for which 
 may have been granted by a special lex,^ consisted in raising 
 some of the ordinary legionary delegates of the consul to a level 
 with the commanding officer and suppressing the latter.^ These 
 extraordinary officials were elected at the comitia centwiiata 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.* It rested formally 
 with the magistrate who guided the elections, practically perhaps 
 with the Senate, to determine how many of these officers should 
 
 1 Liv. iv. 6. " ib. 35. 
 
 ' Claudius in Tab. Lagd. "quid (commemorem) in pluxis distritutum 
 oonsulare imperium tribunosque militum consulari imperio appellatos, qui seni et 
 saepe ootoni crearentur." 
 
 * Livy sometimes speaks of eight (v. 1, vi. 27) ; of. Tab. Imgd. 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.Tj.o. C./.i. i. p. 428) six and two censors. 
 
II THE GROWTH OF THE REPUBLICAN CONSTITUTION 113 
 
 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.^ 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,^ 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 demonstra- 
 tion of the aristocratic character of elective offi.ce, 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? 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, 
 ihat of the consuls; they had the same jus, imperium, and 
 potestas,* and they enjoyed their insignia.^ 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 
 ampicato breaking down the last barriers of religious prejudice.^ 
 
 ^ Pompon, in Dig. 1, 2, 2, 25 "cum . . . plebs contenderet cum patribus et 
 vellet ex sue quoqne corpore consules create, et patres recusarent, factum est ut 
 tribunl militum crearentur partim ex plebe, partim ex patribus consulari potestate." 
 
 ^ Liv. V. 12. Tiiis is maintained to be an error by Mommsen, Rom. Forsch. 
 1. 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 Sinat i. 58-60. 
 
 ^ 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. 
 
 * Imperium (Tab. Lugd. quoted p. 112) ; potestas (Liv. iv. 6) ; jus (Tao. 
 Ann. i. 1). 
 
 ^ Liv. iv. 7 "et imperio et iusignibus consularibus usos." 
 
 » ib. V. 13, 52. 
 
 I 
 
114 EOMAN PUBLIC LIFE chap. 
 
 If this magistracy was considered inferior in dignity to the con- 
 sulship and only a " shadow " of that high office,^ 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.^ 
 
 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 ; ^ 
 but whether it exercised this function by law,* 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 oflBce ; but its military and 
 political convenience caused it practically to replace the consul- 
 ship 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.^ 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 
 
 ' " Proconsularis imago" (Liv. v. 2). ^ Zonar. vii. 19. 
 
 ' Liv. vf. 55 " pervincunt, ut seuatus consultam fiat de tribonis militum 
 creandis" ; iv. 12 "cum . . . obtinuisset, ut oonsulerentur patres, consulum an 
 tribunorum placeret comitia haberi." Dionysius (xi. 60) represents the people as 
 being consulted too. 
 
 ■* i.e. in accordance with the law, if there was one, establishing the office. 
 
 ° Momms. Staatsr. ii. p. 191. 
 
II THE GROWTH OF THE REPUBLICAN CONSTITUTION 116 
 
 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 familianm) 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 cerdwriata was determined. The recogni- 
 tion 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,^ 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,^ 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 
 
 ' Liv. iv. 8 "ortum autem initium est rei, quod in populo, per multos annos 
 inoenso, necpie differri census poterat, neque consulibus, cum tot populorum bella 
 imminerent, operas erat id negotium agere." Cf. Dionys. xi. 63. 
 
 " Liv. I.e. "Idem Wo annus censurae iaitium fuit, rei a parva origine ortae." 
 
116 ROMAN PUBLIC LIFE ohap 
 
 Mamercus Aemilius.^ 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 
 Eome. Admission to the centuries and to the tribes, and there- 
 fore 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 com- 
 munity, 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 cen- 
 sorship and the transference of the election of quaestors to the 
 newly created comitia tributa,^ 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 re- 
 forming 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 
 
 1 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 ofBce for five years, the period 
 of the lustrum (Liv. l.c., cf. ix. 34). « pp_ gj_ ^02. 
 
11 THE GROWTH OF THE EEPUBLIOAN CONSTITUTION 117 
 
 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. ^ 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.^ 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 oc- 
 casional 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,^ and who aspired 
 to the military , tribunate or quaestorship, were as wealthy as 
 
 ' 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." Tiie 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. " 
 
 ^ 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 patrioio K. 
 Fabio Ambusto relinquerei.ur locus." For the election at the comitia tributa 
 see p. 102. ' p. 83 note 2. 
 
118 ROMAN PUBLIC LIFE ohap. 
 
 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 
 {arniiius) was passed in 432 ; it prohibited a candidate from 
 whitening his toga with chalk before the elections ^ — 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,^ 
 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.^ When the next 
 year saw the burdens re-imposed, 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 phhiscUwm 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 hence- 
 forth be a Plebeian. This comprehensive measure, which attacked 
 land, capital, and office,* was easily met. The two tribunes 
 
 ' 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 artibiisque " of the Patricians. Hence •^ tribunician measure "ne 
 oui album in vestimentum addere petitionis liceret causa." After great resistance 
 "vicere tribuni ut legem perferrent." 
 
 ' " Principes plebis " (Liv. I.e.). 
 
 ' ib. vi. 31 " conditionea impositae patribus, ne quis, quoad bellatnm esset, 
 tributum daret, aut jus de pecunia credita diceret." 
 
 * ib. 35 " omnium igitur simul rerum, quarum immodica cupido inter mortalea 
 est, agri, pecuniae, honorum, discrimine proposito, conterriti patres, etc." 
 
II THE GROWTH OS THE REPUBLICAN CONSTITUTION 119 
 
 stood alone, and their eight colleagues were without diflSculty 
 induced to put their veto on the revolutionary measure. But 
 it was soon shown that, if the veto might he used against the 
 interest of the Plehs, 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 sacrosanctiias 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 
 duum/mri sacris facivmdis, 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.^ None of the tribunes of 368 seems to 
 have been prepared to offer any effectual resistance to any of 
 the provisions of the law,^ 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 dccemvirate 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 
 
 ' Liv. vi. 87 "Novam rogationem promulgant, ut pro duumviris sacris 
 faoiundU decemviri creentur ; ita ut pars ex plebe, pars ex patribus fiat." 
 
 ^ ib. 38. His statements are inconsistent. He speaks of the college as 
 being tinauimous, and yet of iniercessio being used at the meeting. 
 
120 ROMAN PUBLIC LIFE chap. 
 
 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 
 Eome, the body that exercised the whole of the highest pro- 
 hibitive 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 
 audoritas 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 Ourule 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 com- 
 promise between the orders, the Plebeians allowing a third 
 purely patrician magistracy to be created in exchange for the 
 confiscated consulship.^ But, even if we assume that the 
 praetorship was originally confined to the patres — a statement 
 which has with some reason been doubted ^ — 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 
 
 ^ Liv, vi. 42 " concessum ... a plebe nobilitati de praetore imo, 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 flnitimis neque esset, qui in urbe jus reddere posset, factum 
 est ut praetor quoque crearetur, qui urbanus appeUatus est, quod in urbe jus 
 redderet." 
 
 ^ Mommsen {Staatsr. ii. p. 204) doubts it, chiefly on the ground that no law 
 is mentioned as opening the oflace 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. 
 
II THE GROWTH OF THE REPUBLICAN CONSTITUTION 121 
 
 this regal prerogative were necessarily colleagues, tte praetor 
 was a colleague of the consuls. He was created, as the phrase 
 ran, "under the same auspices,"^ 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 inappro- 
 priateness 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,^ practice decided against his interference with it, 
 and the praetor was for more than 120 years (366-242) the sole 
 civil magistrate of Eome. At the close of this period a second 
 praetor was appointed, whose duty it was to decide cases 
 between foreigners (peregrini) and between Eoman 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.^ 
 
 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 
 
 ^ Liv. vii. 1 "coUegam consulibus atque iisdem auspiciis creatum.'' Cf. 
 Gell. xiii. 15. 
 
 " An instance of the exercise of a consular veto over a judicial decision of a 
 praetor in 77 b.o. is preserved by Valerius Maximus (vii. 7, 6). 
 
 ' Liv. viii. 15 "eodem anno Q. Publilius Philo praetor primus de plebe, 
 adversante Sulpicio consule, qui negabat rationem ejus se habiturum, est factus ; 
 senatn, cum in summis imperiis id non obtinuisset, minus in praetura intendente." 
 
122 ROMAN PUBLIC LIFE chap. 
 
 police and market regulations. It was an anomaly that these 
 duties, so far as they fell to the lot of any special oflScials, should 
 be in the hands of two plebeian assistants of the tribune.^ 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 oflScials 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 ; ^ 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.* 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;* 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 ; * 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.^ How difficult it would have been for 
 the Pleljs 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.^ With respect to the occupa- 
 
 1 p. 98. 
 
 ' Liv. vi. 42 "Factum senatos consultum, ut duo viros aediles ex patribns 
 dictator populum rogaret." 
 
 ' ib. vii. 1 (366 B.C.) " vereoundia inde imposita est senatui ex patribus jubendi 
 aediles curule? creari. primo, iit altemia 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]. 
 
 * ib. 17 "dictator C. Marcius Rutilus primus de plebe dictus" ; he appointed 
 a plebeian master of the horse. 
 
 ' ib. 22. The same C. Marcius Rutilus " professus oensuram se petere " was 
 elected. 
 
 * ib. viii. 12 "ut alter utique ex plebe . . . censor crearetur." 
 
 ' ib. Ep. 69 "Q. Pompeius et Q. MeteUua, tunc primum utriqne ex plebe 
 facti, censores lustrum condiderunt." 
 
II THE GROWTH OF THE REPUBLICAN CONSTITUTION 123 
 
 tion of both of the consular places by Plebeians, a doubt seems 
 to have existed of its legality, which was removed in 342 by a 
 pleUscitum passed into law which declared " uti liceret consules 
 ambos plebeios creari." ^ 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 prindpes had to storm. This was the circle of 
 the priestly colleges. The two religious guilds of paramount 
 political importance, apart from the decemvirate (sacris facitmdis) 
 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.^ The augural college, which should 
 have consisted of six, was also at this time reduced by some 
 accident to four members.^ 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.* 
 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 
 
 ' Liv. vii. 42. The law was proposed by the tribune L. Geniicius. It was 
 not, however, until the year 172 B.o. that both consuls were plebeian (Liv, 
 xlii. 9 ; Fast. Cap. G.I.L. i. 1 p. 26). " p. 52. 
 
 ' 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 ooopted {cooptamt) 
 one from each of the three tribes ; they were therefore four ; that Numa added 
 two (ib. il. 14, 26). This makes six, which Livy (l.c.) thinks the normal number 
 at the time of the passing of the Ogulnian law. 
 
 * Liv. X. 6. These numbers remained unaltered until the time of Sulla (81 B.C.), 
 who raised the colleges of pontiflFs and augurs to fifteen (Liv. Up. 89). A six- 
 teenth was added to both colleges by Julius Caesar (Dio Cass, xlii, 61). 
 
124 ROMAN PUBLIC LIFE chap. 
 
 kiumviri epuhnes, created in 196 B.c. for preparing the epulum 
 Jovis and banquets given in honour of the other gods i — seems 
 from its origin to have been composed wholly of Plebeians.^ 
 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.* 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.* 
 
 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 pleUscita binding on the people (ui 
 plebiscita omnes Quirites tenerent)? 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 ; ^ 
 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 plebisdtum to lex a matter of formal 
 and not of real importance.^ Another law passed by the same 
 
 ^ Liv. zzxiii'. 42. The number was afterwards increased to seven, from 
 which time the college was known as that of the vilviri epvZones, 
 
 " Marquardt Staatsverw. iii. p. 333. 
 
 ^ Liv. iii. 32 "augur (mortuus est) C. Horatius Pulvillus ; in cujus locum 
 C. Veturium eo onpidius, quia damnatus a plebe erat, augnres legere." The 
 pontifex maximus was early an exception to this rule ; see the comitia sacerdotum 
 in the section dealing with the people. 
 
 * Cio. de Leg. Agr. ii. 7, 18 ; Veil. u. 12. 
 
 » Liv. viii. 12. « p. 109. 
 
 ' Mr. Strachan-Davidson conjectures that the law of Puhlilius Philo " may have 
 struck out the intervening consultation of the Senate, and may have required the 
 
II THE GROWTH OF THE REPUBLICAN CONSTITUTION 125 
 
 dictator had reference to the patrum auctoritas. We have seen 
 what this power had become, probably from the dawn of the 
 Eepublic.^ 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 pleUscita, 
 and we know too little of the comitia tributa to say whether the 
 measures of that body were submitted to it or not;^ 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 l&w it was enacted that the consent to 
 laws passed by the comitia centwiata should be given before the 
 voting commenced.^ This provision was shortly afterwards 
 (perhaps in 338 B.C.) extended by a lex Maenia to elections.* 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 
 
 consul to tiring the petition of the Plebs at once before the Populus " (Smith 
 Diet, of Aniiq. s.v. plebisdtum, ii. p. 439). ' p. 83. 
 
 ^ The only evidence that they were is furnished by Livy's account of a lex 
 Manlia of 357 B.C. (Willems Droit Publie p. 183). See Liv. vii. 16 (Manlius the 
 consul) " legem, novo exemplo ad Sutriura in castris tributim de vicesima eorum, 
 qui manumitterentur, tulit. Patres, quia ea lege haud parvum veetigal inopi 
 aerario additum esset, auotores fuerunt. " 
 
 ' ib. viil. 12 "ut legum, quae comitiis centuriatis ferrentur, ante initura 
 suffragium patres auotores fierent." 
 
 * Cio. Brut. 14, 55. Of. Liv. 1. 17 "hodie . . . in legibus magistratibusqna 
 rogandis usurpatur idem jus (the patrum auctoritas), \ i adempta. " 
 
126 ROMAN PUBLIC LIFE chap. 
 
 of the people, making him in fact a magistrate of the com- 
 munity, and thus abolishing all distinction between Populus 
 and Plebs, or removing the impediments which still hampered 
 tribunician legislation in the conciliwn plebis. The conservatism 
 of the Eoman 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,^ but which seems to have been of a 
 very different and far more definite character. The lawyers ^ 
 regard the lex Hortensia as the measure which gave decrees of 
 the Plebs the full force of laws. Henceforth there is between 
 lex and plehiscitum merely a difference of form and name ; their 
 poiestas is the same,^ and even legal formulae use the -words as 
 practically identical.* A law could repeal a plebiscite and a 
 plebiscite a law ; ^ 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,* and it is only at times by care- 
 fully noting who is the presiding magistrate on the particular 
 occasion, that we can determine whether the ordinance he elicits 
 
 ' Laelius Felix ap. Gell. 15, 27 " (pleM soitis) ante patricii non tenebantur, 
 doneo Q. Hortensius dictator legem tulit, ut eo jure quod plebs statuisset, omnes 
 quirites tenerentur" ; Plin. H.K xvi. 10, 37 " ut quod ea (plebs) jussisset, omnes 
 quirites teneret." 
 
 ^ 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 plaouit et ea (plebiscita) 
 obsorvari lege Hortensia : et ita factum est, ut inter plebis scita et legem species 
 constituendi interesset, potestas autem eadem esset. " 
 
 ^ Pompon. I.e. 
 
 * The lex Agraria of 111 B.C. (Bruns Fontes) thus refers to a lex Semvpronia 
 of 123 B.C., "[ex] lege plebeive scito, quod C. Sempronius Ti. f. tr. pi. rogavit." 
 Cf. lex Ruhria (ib.) " ex lege Eubria seive id pi. sc. est." 
 
 ■■ Thus Cicero, exiled by a plebisdtum, was restored by a lex centuriata. See 
 the section on the people. 
 
 ° Of the many instances one of the most remarkable is to be found in Sail. 
 Jug. Si, "Marius . . . cupientissima plebe consul factus, postquam ei provinciam 
 Numidiam populus jussit." Here plebs should be pcipulus and populus, plebs. 
 
n THE GROWTH OF THE REPUBLICAN CONSTITUTION 127 
 
 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 ; ^ while the 
 comitia of the centuries and tribes were presided over by magis- 
 trates with the imperium, the conciliwm 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 coTuMium, were still a considerable 
 body, and the tribune had not yet become, like the magistrates 
 with imp&rivm, quite a servant of the Senate.^ 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 
 Eoman it is a sacred thing, an expression of Bomana fdes ; while 
 the Greek ir/aoo-raTijs struggled for others, the Eoman 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 {nanus injectio) of the usurer, 
 to recover the fourfold penalty for the illegal interest ; ^ 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 
 
 ' " Legislative " is here used in the modem sense. At Rome a judicial and 
 elective act of the people was equally a lex. 
 
 2 At least in 304 B.C. they had no right of rdatio vrith the Senate (Liv. ix. 46). 
 ^ Gains iv. 23. 
 
128 ROMAN PUBLIC LIFE chap. 
 
 that they had reasonable hopes of ultimately satisfying their 
 creditors ; ^ it therefore abolished most contracts on the security 
 of the person ; although the addidio and imprisonment of debtors 
 by order of the court continued through the Eepublic 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 On. Flavius, a freedman's 
 son. The fraudulent secretary also posted up a tablet containing 
 a list of court days (diss fasti) on which the legis actio was 
 possible.^ 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,^ and secular teaching 
 soon tore the veil from the hidden features of jurisprudence. 
 
 But, apart from these minor benefits, the mass of the Ple- 
 beians did not share to any very large extent in the triumph of 
 their order. The true reason of the individual Eoman 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 Eoman constitution. It must 
 suffice here to trace the painfully inadequate results which were 
 secured by these centuries of agitation by a glance at the dis- 
 tribution of power in the Eoman 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 
 
 ^ Varro L.L. viii. 105 "Hoe (the condition of nexum) C. Poetilio Libone 
 Visolo dictators (313 B.o.) snblatum 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 =i universal release of nexi: "jussique consules ferre ad 
 populnm, ne quis, nisi qui noxam meruisset, donee poenam lueret, in compedibus 
 aut in nervo teneretur : pecuniae creditae bona debitoris, non corpus obnoxium 
 
 ^ Liv. ix. 46 " Cn. Flavius . . . patre libertino . . . civile jus, repositum in pene- 
 tralibus pontificum, evulgavit, fastosque circa forum in albo proposuit, ut quando 
 lego agi posset, sciretur" ; Pompon, in Dig. 1, 2, 2, 7 "postea cum Appiua 
 Claudius oomposuisset (for "proposuisset") et ad formam redegisset has actiones, 
 Cn. Flavius scriba ejus libertini filius subreptnm librum populo tradidit ... hie 
 liber, qui actiones continet, appellatur jus civile Flavianiim. " 
 
 ' Pompon. 1.0. §§ 37, 38. Gaius Scipio Nasica was given a house for con- 
 sultations. The first professor, Ti. Coruucanius ("qui primus profiteri coepit," 
 circ. 280 B.C.), was also the first plebeian jjonii/ea: mammiis. 
 
n THE GROWTH OF THE REPUBLICAN CONSTITUTION 129 
 
 only to give room for the still firmer grasp of a new. This was 
 an aristocracy of mixed origin, composed indifi'erently 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 piu'pose 
 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 descend- 
 ants demanded. At such funerals actors were hired to repre- 
 sent the mighty dead; they wore their ima.gines, and were 
 adorned with the insignia of the ofiices 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.^ 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 imaginvm, was 
 a strictly legal privilege. It was possessed by all those who 
 had bean in possession of the toga praetexta and the sella cwulis^ 
 — 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.^ But this outward token of nobility, which at 
 Rome took the place of the modern title of honour, was of 
 
 ' Polyb. vi. 53. 
 
 ^ Cio. in Verr. v. 14, 36 "togara praetextam, sellam curulem, jus imaginis 
 ad meraoriam posteritatemque prodendae. " 
 
 ' In other words, images of other than curule ancestors might be set up in the 
 at/rium. 
 
 K 
 
130 EOMAN PUBLIC LIFE chap. 
 
 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 recog- 
 nised in the transmission of honours,^ 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 siemma by ignoble links.^ But the 
 Patriciate itself conferred a kind of nobility, and one that, what- 
 ever 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.^ 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 recog- 
 nition 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.* 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.^ 
 
 The idea of a privileged nobility, which closed its ranks to 
 new men, had become fixed by the date of the second Punic 
 
 ' p. 22. 
 
 ^ Sallust. Jug. 95 (of Sulla) "gentis patriciaa nobilis fuit, familia prope jam 
 exstiucta majomm ignavia." 
 
 ' Clo. ^ro Mur. 7. 16 ; Ascon. in Scaurian. p. 22. 
 
 * Dionys. vii. 71. 
 
 ' Of. Cio. de Off. ii. 17, 58 "Vitanda tamen suspioio est avaritiae. Mamerocv 
 homini divitissimo, praetermissio aedilitatis consulatus repiilsam attullt." 
 
11 THE GROWTH OF THE EEPUBLIOAN CONSTITUTION 131 
 
 war.^ 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. ^ 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 enumer- 
 ated and defended by the orator. Besides the shadowy and 
 ineffective powers of the patrum audoritas and the interregnum, 
 they possessed half the places in the great priestly colleges, 
 which were shared between the orders, and certain priests — the 
 Eex Sacrorum, the three great Flamines and the Salii — were 
 chosen exclusively from their ranks.^ The place of the Patri- 
 ciate in the theory of the constitution — as illustrated by the 
 audoritas 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. 
 
 1 Liv. xxii. 34 (of the election of Varro, 217 B.C.) "Patres summa ope 
 obstabant, ne se inseotando sibi aequari adsuesoerent homines." 
 
 ' Sallust. Jtiff. 63 " oousulatum nobilitas inter se per manus tradebat ; novus 
 nemo tam olarus neqiie tam egregiis faotis erat, quiii indignus illo honore, et 
 is quasi pollutes, haberetur." 
 
 ^ Cio. pro Domo 14, 38 "Ita populus Eomanus brevi tempore, ncque regem 
 sacrorum, neque IJamines, neque salios habebit, neo ex parte dimidia reliquos 
 saoerdotes, neque auctores centuriatorum et curiatorum comitiorum : auspiciaquo 
 populi Romani, si magistratus patricii creati non sint, intereaut necesse est, cum 
 iuterrex 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). 
 
CHAPTER III 
 
 THE CLASSES OF THE POPULATION AND THE THEORY OF THE 
 CONSTITXJTION IN THE DEVELOPED EEPUBLIO 
 
 § 1. The Classes of the Population 
 
 By the date of the lex Hortensia (287 B.C.) the Republican con- 
 stitution had, in all essential points (considered as the constitu- 
 tion 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 optima 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, cither 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 i.s 
 
CHAP. Ill THE CLASSES OF THE POPULATION 133 
 
 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 cmubiwm 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.^ 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 j the child of a civis Bomana 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 cimtas was only an exceptional 
 measure in so far as it required a special legislative act.^ 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 ^ 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 390, 736; in 85, after the incorporation of 
 the greater part of Italy, to 963,000.* 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,^ 
 
 ' Ulpian Reg. v. 8 " conubio interveniente liberi semper patrem sequuntur ; 
 non Interveniente conubio matris conditioni accecTunt, exoepto eo qui ex peregriuo 
 et cive Bomana 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 peregrine natum deterioris parentis conditionem sequi 
 jubet." 
 
 " Or, in the Principate, an administrative act. See the section on the powers 
 of the Prinoeps. * p. 6. 
 
 * Belooh Der Italische Bund pp. 101, 102. 
 
 ^ Tac. Ann. xi. 25 ; Belooh op. cit. p. 78. According to Belooh (I.e.) a com- 
 parison 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. 
 
134 ROMAN PUBLIC LIFE chap. 
 
 This gift of citizenship was, in the Eepublic, 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 pro- 
 secution ; ^ and, after the fall of the Eepublic, 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,^ or through commis- 
 sioners charged with the founding of colonies. These were 
 generally the specially-appointed iiimri coloniae deducendae; and 
 in all such cases of delegation the power was conferred by a lex.^ 
 In the last century of the Eepublic 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 Gornelia Gellia granted a similar power to 
 Pompeius during his Spanish campaigns.* 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 {rmnu- 
 missio justa) ^ he must observe certain rules of law. The most 
 usual form was the manumissio viTidicta. It was one of the 
 many fictitious forms of the old capture of property (vindicatio), 
 the primitive Eoman method of recovery. A man of straw, called 
 the adsertor in lihertatem, appeared before any magistrate, who could 
 claim the conduct of the legis adio,^ declared the slave to be free, 
 and touched his head with a staff (vindicta).'' The master yielded, 
 
 ' Lex Acilia Repdundamm 1. 76. 
 
 ^ Cic. pro Balho 10, 25 "quod iis . . . liceat, si populus Komanus permiserili 
 ut ab senatu, ab imperatoribus nostris, civitate donentur." 
 . " Cio. Brut. 20, 79 ; pro BMo 21, 48. 
 
 * See the section dealing mth the comitia. 
 
 " Suet. Aug. 40 ; Seneo. de Vit. Beat. 24. 
 
 ' It implied the imperium. At Eome these magistrates would be consul, 
 praetor, dictator, or interrex ; in the provinces the governors. 
 
 ' Gains iv, 16. 
 
Ill THE CLASSES OF THE POPULATION 135 
 
 and this cession of his rights {in jure cessio) was followed by the 
 declaration of the magistrate that the slave was free.^ 
 
 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 {manvmissio censu). It was the false declaration of the 
 master that the man was free which gave validity to this form.^ 
 
 The third and later form was manumission by testament 
 {manvmissio testamento), by which the master either commanded 
 the freedom of the slave in his will, or left it as a trust to 
 his heir.* 
 
 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).^ 
 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 Eepublic, 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 
 lihertimis — always its antithesis — was used to cover, not merely 
 the manumitted slave, but his descendant in the first degree.^ 
 
 ' "Praetor addioit libertatem.'' See Cio. ad Att. vii. 2, 8. 
 
 ^ 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. Seni publiai were manumitted 
 by the magistrates, but whether by the consul only or by any magistrate is un- 
 known (Momms. Staatsr. i. p. 321). The greatest instance of state emancipation is 
 that of the Volones in 214 B.o. (Liv. xxiv. 16). 
 
 ' In the first case it is called directa libertas [Dig. 40, 4, 35), in the second 
 Ubertas Jidei commissa (Dig. 40, 4, 11). 
 
 * Theophilua (i. 5, 4) calls them ^vo-^koI rpbiroi, iXevBeplas. 
 
 " Suet. Glaud. 24 (Claudius said that App. Caecus, censor in 312 B.C., had 
 chosen the sons of Ubertini for the Senate) " ignarus, temporibus Appii et deinceps 
 aliquamdiu, ' libertines ' dictos, nou ipsos, qui manu mitterentur, sed ingenuos ex 
 his procreates." 
 
136 ROMAN PUBLIC LIFE chap. 
 
 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." ^ 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.^ It was one of the many triumphs of 
 the law of nature over the law of the state. 
 
 The rights {jv/ra) of the citizen in the developed Republic were 
 those which we have enumerated as belonging to the free 
 Plebeian of the monarchy,^ 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 occupy- 
 ing domain land and the rights of suffrage and of office. The 
 Patricians still possessed some minor privileges,* 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 
 
 ' Justin. Inst. i. 4 " qui statim ut natus est liber est " ; Cio. de Nat. Dear. iii. 
 18, 45 "in jure oivili, 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. 
 
 ^ The s[ine) p(atre) filii of Gains (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 oSBcial designation, while liben 
 naturales denoted the natural relationship to the father (Meyer Der rSmisclu 
 Gonaitinat). 
 
 = p. 35. * p. 131. 
 
Ill THE CLASSES OF THE POPULATION 137 
 
 were probably defrayed by the personal labour of the citizens.^ 
 Even the financial burdens which afterwards pressed on property 
 (muTiera patrimonii) were largely defrayed by their enforced toil 
 {operae).'^ In the municipal legislation of the close of the Eepublic 
 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.^ But the tributwm, 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 Eepublic, 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.* 
 
 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 ; ^ later it was levied on all 
 property and was paid by all registered citizens who were sui 
 juris, the aes liordearium em.ployed for the support of the 
 knights being still paid by children and women who were also 
 sui juris.^ The lowest property taxed was, as we have seen, 
 one of 1500 asses.' 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 1 000 (^ 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.^ 
 The vast revenues accruing to the state as a result of the third 
 
 1 p. 45. '' p. 98. 
 
 ' Leu Ooloniae Genetivae (a fouuilation of Caesar's in 44 B.C. at Osuna in 
 Spain) u. 98 " Quamcumque munitionem decuriones hujujsce ooloniae decre- 
 verint . . . earn munitionem fieri liceto, dum ne amplius in annos singulos , . . 
 operas quinas . . . decernant." 
 
 * 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. 
 
 5 p. 69. ' p. 74. ' p. 73. 
 
 ' Liv. xxxiii. 42 (196 B.o.) "Pecunia opus erat, quod ultimam pensionem 
 pecuniae in bellnm conlatae persolvi placuerat privatis." Cf. v. 20 and Plin. 
 ff.if. xxxiv. 6. 
 
138 ROMAN PUBLIC LIFE chap. 
 
 Macedonian war in 167 B.C. caused the cessation of the tribute,' 
 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,^ and the citizen who did not present 
 himself for the conscription was sold as a slave* across the 
 Tiber.* 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 (eguites). 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 jwis at the census for the purpose of registration. 
 All who neglected this duty (the incensi) could be sold as slaves 
 across the Tiber. ^ 
 
 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 jv^a with which the citizen was 
 invested, and the mode in which the.y 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.* Gradually juris- 
 
 ^ Cio. de Off. ii. 22, 76 " Paulus tantum in aerarium pecuniae invexit, ut uniu9 
 imperatoris praeda finem attulerit tributonim " ; Plutarch, Paul. 38. 
 
 ^ Lex AeUia Repetundarum c. 79 ; amongst the rewards granted to a Latin 
 who prosecuted successfully under this law are " militiae munerisque poplioi in 
 sua quojusque oeivitate vocatio immunitasque." 
 
 ' Cic. pro Oaec. 34. 
 
 * Cic. I.e. ; de Orat. i. 40. 
 
 ' Cio. pro Oaec. 34 ; Dionya. iv. 15. " p. 32. 
 
HI THE CLASSES OF THE POPULATION 139 
 
 prudence 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 citizemhip could be spoken of as a capitis deminuiio. 
 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 deminuiio ; ^ 
 but finally a more precise classification gave the following three 
 grades of loss of status : ^ — 
 
 (i.) Capitis deminutio maxima was the loss of cintas and libertas, 
 consequent on a man's becoming a prisoner of the enemy. With 
 the loss of freedom, political and therefore private rights^ ceased 
 ipso jure to exist. The obligations of international law might 
 also produce this condition ; the Eoman general who concluded a 
 treaty with the enemy, which the people would not accept, was 
 handed over as a scape-goat for the broken faith of the com- 
 munity * (deditus), and similar treatment was meted out to one 
 who had violated the sanctity of envoys,^ or to a general who 
 had made war with a state in alliance with Borne.* 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 ^ — -or 
 permitted the sale of the debtor or of the child into a foreign 
 land.^ 
 
 (ii.) Capitis deminutio media (or minsr *) was the loss of dvitas 
 alone. 
 
 This might be voluntarily incurred by the assumption of 
 the citizenship of another town, for the principle of the older 
 Eoman law was that a man might not be a member of 
 two independent communities.^" The exile from Rome which 
 
 ' Eisele Beitrdge xwr rlimiscihen Rechtsgeschichte p. 205. 
 
 2 Gaius i. 169-162 ; Ulp. xi. 10-13. ' p. 31. 
 
 • For the form of deditio see Liv. ix. 10 ; App. de Reb. Hisp. 83. The refer- 
 ences are to the two great historic instances at the Caudine Forks (321) and 
 Nnmantia (137). 
 
 ' Liv. xxxviii. 42 (188 B.C.) "eo anno L. Minucius Myrtilus et L. Manlius, 
 quod legatos Carthaginienses pulsasse dioebantur, jussu M. Claudii praetoris urbani 
 per fetiales traditi sunt legatis, et Carthaginem avecti." 
 
 « ib. V. 36 ; Suet. Caes. 24. ' p. 138. 
 
 8 p. 91. 8 Gaius i. 159. 
 
 " Cio. pro Balho 11, 28 ; pro Oaec. 34, 100. 
 
140 ROMAN PUBLIC LIFE chap. 
 
 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 interdidio) ^ often passed by 
 the people against an individual who was in voluntary banish- 
 ment 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.^ Its applications have been already considered.^ 
 
 There were means of recovering the status lost in either 
 of these three modes. The loss of familia in its original sense * 
 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). Lihertas 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^ 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.* 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 pre- 
 scriptive 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 
 
 1 p. 55. 
 
 ^ UIp. Reff. xi. 13 "per quam, et clvitate et libertate salva, status dumtaxat 
 hominis mutatur." Cf. Gaius i. 162. 
 
 ^ p. 32. ^ i.e. by adrogaiio, see p. 32. 
 
 ' Justin. Inst. i. 12, 5 "postliminium flngit enm qui oaptus est semper 
 in clvitate fuisse"; Gaius i. 129 "hi qui ab hostibus capti sunt, si reversi 
 fuerint, omnia pristina jura recipiuut." 
 
 « p. 18. 
 
in THE CLASSES OF THE POPULATION 141 
 
 was out of accordance with the spirit of the age, and, though 
 not abolished, was evaded by cunningly contrived legal fictions.^ 
 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 gentiwm — 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.^ 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, immedi- 
 ately transferred from the ownership of the state to that of 
 private individuals. They were sold by the quaestors,^ often in 
 the camp,^ and the slave-dealer tracked the footsteps of a success- 
 ful general.* 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,^ and from the consequences of the cam- 
 paigns 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.^ 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, 
 
 ' Cic. pro Mwr. 12, 27 "mulieres onmes propter infirmitatem consilii 
 majores in tutornm potestate esse voluerunt ; hi iuvenerunt genera tutorum, quae 
 potestate mulierum continerentur." 
 
 ^ 'By ^ihe jus posiliminii ; seep. 140, 
 
 » Plant. Capt. Prol. 34. 
 
 ^ Liv. X. 42, 46. ^ Caesar B.G. iii. 16. 
 
 * Polyb. XXX. 15 (Paiilus) vivre Si xal S^Ka fJivpcdSas AvOpdiiruv l^avSpawodl- 
 
 >■ Strabo xiv. p. 668. 
 
142 ROMAN PUBLIO LIFE chap. 
 
 while professing to interpret, often guided and controlled, the 
 wills of their slower Eoman 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 Eome. Their cultivation of 
 the mechanical arts and crafts made the Eoman noble's household 
 self-suflS.cient •*■ 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.^ 
 After the acquisition of the province of Sicily, which supplied 
 cheap food to Eome, 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 emancipa- 
 tion which was ever open to the favourite. The Eoman 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 combina- 
 tion 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.^ The dominus 
 could sue on the contract, although the slave having no legal 
 
 ' Marquardt Privatleben pp. 135 sq, 
 2 Appian B.G. i. 8. 
 
 " Gaius in Dig. 50, 17, 133 "melior oondioio nostra per servos fieri potest- 
 deterior fieri non potest." 
 
Ill THE CLASSES OF THE POPULATION 143 
 
 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 quodjussu) ; if the slave had embarked his pecuUum 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 kihutoria). 
 Finally, any liability incurred by the pecvMum 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 domimis made 
 liable to that extent (actio de in rem verso)} 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 Eome 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.^ In case wrongs were done him, it was not he but 
 his master that demanded reparation ; ^ while his lord himself 
 was the judge of the delicts which he had committed against 
 himself or the household.* 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.^ 
 
 ' Gaius iv. 69-74 ; Justin, net, iv. 7. 
 
 ' Cio. Part. Oral. 34, 118 ; pro Clumt. 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. 
 
 8 Gaius iii. 210, 217, 222, 223. 
 
 * Cato R.R. 6 ; Dionys. vti. 69. 
 
 ' Cio. ad Fam. iv. 12 ; Tac. Ann. xiv. 42. 
 
144 ROMAN PUBLIC LIFE chap. 
 
 The state itself owned slaves who were known as servi puhlici. 
 Some were in the service of temples or of cclleges of priests. 
 Others were at the disposal of magistrates, such as the censors or 
 aediles/ for the minor duties of attendance and police. Their 
 agency in contract's 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,^ 
 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 lihertini, 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 ^ to his former master, who now 
 became his patronusf was to some extent modelled on that of the 
 ancient client to his lord. The freedman owed his manumitter 
 reverence and obedience (obsequium) ; * he could not prosecute, or 
 appear as a witness against him, in the criminal courts,^ and he 
 required the permission of the praetor to bring even a civil 
 action against his former master or that master's near relatives.* 
 The patron's right of succession to the freedman's estate if he died 
 intestate and without heirs,^ 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 circum- 
 stance 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 Eutilius,* which 
 practically confined them to the performance of certain personal 
 
 ' Liv. xliii. 16 ; Gell. xiii. 13. For semi puUici in the municipal towns 
 see Lex Coloniae Genetivae o. 62. 
 
 ^ Actor publicus, in Rome (Tao. Ann. ii. 30) ; in the municipal towns (Plin. 
 Ep. vii, 18, 2). 
 
 2 Libertinus describes the freedman's j)olitical position, libertus his relation to 
 his master. 
 
 * Ulp. in Dig. I, 16, 9, 3. ° Macer in Dig. 48, 2, 8 ; Paul. Sent. v. 1.5, 3. 
 
 ° Ulp. in Dig. 2, 4, 4, 1 " Praetor ait ' parentem, patronum, patronam, liberos 
 parentes patroni patronae in jus sine permissu meo ne quis vocet.' " 
 
 ' Gains iii. 40-44. 
 
 8 Ulp. in Dig. 38, 2, 1, 1. Mommsen {Staatsr. iii. p. 433) thinks tiat 
 author of the change was the famous P. Rntilius Rufus, consul 105 B.o. 
 
Ill THE CLASSES OF THE POPULATION 145 
 
 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 e . on at the close of 
 the Eepublic.^ 
 
 The political position of the Hbertini was probably better at 
 the beginning than at the end of the Republic. Under the 
 Servian rigime 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 ; ^ but when the comitia centwiata 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 trihuta 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,^ 
 spread them over all the tribes,* and probably, according to 
 their census, over all the centuries. In 304 B.C. the old arrange- 
 ment, which limited the freedman's vote, was reverted to.^ The 
 censors of 169 went further and restricted them all to a single 
 tribe. ^ 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." But the question of the freedman's vote 
 
 1 Suet. Cues. 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 
 liberii. The freedmen so punished may have been informally manumitted. For 
 the relegation of a freedman by his patronus see Tac. Ann. xiiL 26. 
 
 " Of. Pint. Poplic. 7. Plutarch, in this story of the imaginary freedman 
 Vindicius, represents his class as having no voting rights at the beginning of the 
 Eepublio, Appius Claudius (312 B.C.), he says, iirst gave them i^ovalav \jrii<tiov : 
 but he does not state the assemblies in which this right was exercised. 
 
 ^ See the section on the censor (p. 223). 
 
 * Liv. ix. 46. 
 
 ' ib. ; Val. Max. ii. 2, 9. Nothing is said about their division into classes; 
 according to the arrangement of the reformed comitia cemtimata (see the section 
 on the comitia), this restriction to four tribes would have given them the com- 
 mand of only forty centuries. ° Liv. xlv. 15. 
 
 ' Auct. de Vir. lU. 72 (M. Aemilius Scaurus) " consul legem de sumptibus et 
 libertinorum sufFragiis tulit " ; Willems Droit Public Rom. p. 123. 
 
 L 
 
146 KOMAN PUBLIC LIFE chap. 
 
 became a battle -cry in tbe last century of the Eepublic. In 
 88 B.C. the democratic tribune Sulpicius passed a law which 
 gave the libertinus the tribe of his patron.^ It was repealed by 
 the optimates ; but the second triumph of the democrats in 
 84 B.C. again restored the law,^ 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 mUitary service in the legions.^ 
 The same prejudice did not apply to the fleet, and for this 
 service Hhertini were freely employed.* 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.®- 
 
 § 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 constitu- 
 tional law and custom, through which even the keen eye of the 
 Eoman 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 
 
 ' Dio Cass, xxxvi. 25. ^ Liv. Bp. 84. 
 
 ' Exceptions doe 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. 
 
 * First mentioned in 217 B.o. (Liv. xxii. 11). 
 
 ' See the section on the magistracy (p. 184), 
 
Ill THE THEORY OF THE CONSTITUTION 147 
 
 imperial rule. The test was a severe one, and the constitution 
 which could not answer the strain need not be wholly con- 
 demned. 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 Eoman constitution will neglect, as 
 far as possible, this abnormal growth, and, although much of 
 its structure was the result of war.i will be able to show that 
 its essential peculiarities were not the effect of conquest. 
 
 The Eoman state was still a limited sovereignty of the 
 people ; so limited, indeed, that the people, i.e. the patricio- 
 plebeian populus Bomanus, 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 Eepublic 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 imperivm or auspicia — those of lesser 
 patrician magistrates were of no avail ; for the praetor, though 
 technically a colleague of the consuls,^ could not hold the 
 consular elections ^ — 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," * and it is they only who can restore 
 them. The first fundamental element, therefore, in the theory 
 of the Eoman constitution, however absurd it may seem, is that 
 ultimate sovereignty rests with the patrician members of the 
 Senate.^ 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 Eepublican i/nterregmim. 
 
 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. magistratvs populi, was another necessary pre- 
 liminary, for the auspices could not return to the patres so long 
 as they were held, whether as majora or minora auspicia,^ by a 
 
 ' e.g. the institution of the censor, praetor, ourule aediles, and (although they 
 are not a part of the developed constitution), the consular tribunes. 
 
 2 p. 121. 
 
 ' Cic. ad Alt. ix. 9, 3 "in libris (i.e. the augural books) habemus non 
 modo consules a praetore, sed ne praetores quidem oreari jus esse." 
 
 * p. 47. " p. 47. ° See the section on the magistracy (p. 165). 
 
148 ROMAN PUBLIC LIFE chap, 
 
 patrician magistrate.^ Hence, when a sudden occasion arose foi 
 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.^ The plebeian magistrates still remained in 
 the exercise of their functions. 
 
 It was, in the later Eepublic, the Senate which took all further 
 necessary action. In the early Eepublic 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.^ 
 
 The collegiate principle of the regal interregnum and the use 
 of the lot * had both disappeared ; the agreement of the patrician 
 senators took the form of the election (creatio) ^ of a single interrex 
 {prodere interregem). This magistrate nominated his successor, as 
 the consul nominated the dictator,* 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 ; ^ 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 ^ and a senator, and the instances 
 seem to show that he was invariably chosen from the past 
 
 ' Cio. de Leg. iii. 3, 9 "ast quando consules maglsterve popnli (i.e. dictator) 
 nee esount, auspicia patrum sunto, oUique ex se produnto qui oomitiatu create 
 consules rite possint"; ad Brut. i. 5, 4 "dum trnus erit patricius magistratus, 
 auspicia ad patres redire non possunt." 
 
 ^ In 43 B.C., on the deaths of Hirtius and Pansa, this comrauuication 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). 
 
 ^ The senatus consvlium containing this suggestion might be vetoed by one 
 of the tribunes. Asoon. in Milan, p. 32 " dum . . . Pompeius . . . et T. Munatius 
 tr. pi. referri ad senatum de patrioiis convocaudis qui interregem proderent non 
 essent passi. " ^ p. 47. 
 
 " Liv. V. 31, 8 "interrex creatur M. Furius Camillus." 
 
 * 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). 
 
 ' Liv. vi. 1 ; viii. 23. 
 
 ' Cic. pro Dom. 14, 38, quoted p. 131. 
 
Ill THE THEORY OF THE CONSTITUTION U9 
 
 holders of curule office.^ 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 perpetuat- 
 ing the magistracy. There was, indeed, one large section of 
 the people which had a continuity of existence as a corporation 
 — this was the condlium of the Plebs with its presidents, the 
 tribunes. From the year 287 this conciliwn 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-opera- 
 tion of the two assemblies — the separate fiat of each had the 
 force of law.^ 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 j when the consul or praetor summoned the people 
 by tribes, the Patricians could be present.* A fundamental 
 distinction in theory here produces little effect in practice. 
 
 While this dual sovereignty — harmless except for its in- 
 cidental 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 
 
 1 Willems le Slnat ii. pp. 14, 16. " p. 126. 
 
 ^ See Appendix on the comitia tributa. 
 
150 ROMAN PUBLIC LIFE chap. 
 
 as the second leading idea in the Roman constitution's period of 
 growth,^ 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 sui)ordination 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 magis- 
 trates and of people was equally impossible, and central govern- 
 ment must reside somewhere, its fitting place was not unnaturally 
 
Ill THE THEORY OF THE CONSTITUTION 151 
 
 sought in the single experienced, permanent, and deliberative 
 body in the state, the Senate.' 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. 
 
 ' 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. 
 
CHAPTEE 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 imperivm ; they had, perhaps, also 
 been expressed by the vaguer term potestas. When, in course of 
 time, magistracies were created which did not possess the imperivm, 
 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 imperivm or 
 of the consularis potestas, but only of the tribunicia potestas.^ 
 
 It is difficult to treat collectively of the special manifestations 
 of this authority ; for the magistracies were graduated by differ- 
 ences 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. Magis- 
 terial 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 
 
 1 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 dis- 
 junctive uses see Big. i, 6, 26, 2 " consulem praetorem oeterosque qui imperium 
 potestatemve quam habent." 
 
OH. IV GENERAL CHARACTERISTICS OF THE MAGISTRACY 153 
 
 abroad (militiae), the dividing line between the two being some- 
 times the pomerivm, sometimes the limit marked by the iirst 
 milestone outside the city.^ 
 
 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 ad- 
 ministration under the control of the magistrates, from the 
 quaestor to the consul.^ The edicts of all the magistrates cor- 
 responded 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 {p&rpetua), as 
 being called forth by ever-present necessities, and were there- 
 fore 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 Eoman morality, the 
 other developed a system of legal procedure. 
 
 The administrative duties abroad belonged exclusively to the 
 magistrates with imperiimi,i.e.m the ordinary course of things to the 
 consuls and praetors, in exceptional circumstances to the dictator.^ 
 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 magis- 
 trate 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 *) was that of the formation of an army by 
 
 1 p. 79. 
 
 ' 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. 
 
 ^ For the pro-magistrates see the sections on the consuls and the pro- 
 vinces. 
 
 * In the course of the Republic imperivm came to denote par excellence 
 command abroad, as was natural, since here alone the power was unshackled. 
 Hence the phrase cwm imperio esse descriptive of a magistrate who can assert this 
 latent power (Cic. ad Fam. vUi. 8, 8 " qui praetores fuerunt neque in provincia 
 
164 ROMAN PUBLIO LIFE chap. 
 
 enforced conscription (dileetus). 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.^ 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 Martins ; and under 
 their inspection the military tribunes selected whom they would 
 and bound the conscripts to obedience by a military oath {sacra- 
 mentwm). ^ Although this oath was in form one of personal allegiance 
 to special commanders, was tendered to both colleagues * and had 
 to be renewed with every change of command,* 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).^ 
 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.* 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'' and un- 
 checked by the veto of a colleague.* A further right pre- 
 liminary 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 Eepublic was to remove 
 selection to the higher military commands from the discretion of 
 
 cum Imperio fuerunt ") and the opposition between magistratus and imperium. 
 Lex Tab. Bant. 1. 16 "(in diebus) quibus quisque eoruni mag(istratum) imperiumve 
 iuierit " ; Zex A cilia Rep. 1, 8 " dum mag(istratum) aut imperium habebunt." 
 
 ^ Liv. iii. 42 ; xxviii. 45. 
 
 ' Polyb. vi. 19, 21. The tenor of the oath was (c. 21) ^ /iV TreiSapx^ireir koI 
 roL-^acLv t6 irpoiTTa.TTdfiei'ov {jirb tuv d.pxi>VTb)v Karb. bivafxiv. 
 
 ' The soldier is said " jurare in verba consulum " (Liv. ii. 52). 
 
 * Liv. iii. 20. 
 
 ' ib. viii. 34 " latrocinii modo caeca et fortuita pro sollemni et saorata militia 
 sit." ^ Dionys. xi. 43. 
 
 ' p. 79. ' See the section on the inierceasio. 
 
JV GENERAL CHAEACTEEISTIOS OF THE MAGISTKAOY 155 
 
 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;^ by the year 207 all of the 
 twenty-four had been thus elected,^ and the standing military 
 tribunate had become one of the regular minor magistracies of 
 the state.^ The tribunes for other legions that might be raised 
 were still nominated by the consuls,* and sometimes the people 
 gave up its right of election in their favour.* 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.^ 
 
 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 Eome without the consent 
 of the people ; the second received some slight limitation from 
 the appointment of military quaestors in 421 ;'^ the third was 
 theoretically unlimited throughout the whole history of the 
 Eepublic, 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 Eepublic 
 more chary of pronouncing capital sentences upon their oflicers 
 and soldiers.^ 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 ad- 
 ministration, and every provincial, when these spheres had 
 developed into standing provinces, were equally subjected to 
 martial law.* The provincial in fact was often in better case 
 
 ' Liv. vii. .5. ^ ib. xxvii. 36. * Lex Acilia 1. 2. 
 
 * They were called Rufuli (Liv. vii. 5 ; Festus p. 260). 
 
 ' Liv. xlii. 31 (171 B.o., commencement of war with Perseus) "consules ex 
 senatus consulto ad populum tulerunt, ne tribuni militum eo anno suffragiis 
 crearentur, sed consulum praetorumque in iis faoiendis judicium arbitriumque 
 esset." Cf. xliii. 12. « Polyb. vi. 13. ' p. 117. 
 
 ° See Greenidge, "The provooatio militiae and provincial jurisdiction'' in 
 Glassical Review x. p. 225. 
 
 ' 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 (Staalsr, i. p. 123). 
 For the proofs of unity in the conception of jurisdiction militiae see the article 
 cited in the last note. 
 
156 ROMAN PUBLIC LIFE chap. 
 
 than the Roman sojourning in the provinces. He could some- 
 times appeal to the liberties granted to his town by charter; 
 but the Roman, found that his jjalladia — the provocatio and the 
 intercessio — had vanished in this sphere.^ 
 
 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.^ Custom decreed that the honour should be 
 assumed only in consequence of a great and decisive victory ; ^ 
 but the ambition and rivalry of provincial governors i:nally 
 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 
 
 ' At the close of the Eepublio, however, custom dictated that the governor 
 should send capital cases in which Romans were involved to Eome. See the 
 section on the provinces. 
 
 " Tao. Ann. iii. 74 "Tiberius . . . Blaeso tribuit, ut imperator a legionibus 
 salutaretur, prisoo 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 Serviliiis had proposed su^licationes) " Sed 
 hoc primum faciam, ut imperatores appellem eos, quorum virtute . . . perioulis 
 . . . liberati suraus." For who, he aslcs, has received a supplicatio without 
 being called imperator within the last twenty years " aut minimis rebus gestis 
 ant plenimque nuUis " ? (cf. Cic. ad Att. y. 20, 3). 
 
 ' Dio Cass, xxxvii. 40. 
 
IV GENERAL CHARACTEEISTICS OF THE MAGISTRACY 157 
 
 dictator,- consul and praetor,^ and to the one of these who at the 
 moment of victory was in highest authority. Thus the dictator 
 usually excluded the consul,^ the consul the praetor ; and when 
 two consuls were in command, the right resided with the one 
 who had the imperium and the auspida on the day of the victory.^ 
 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,* 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 (promnda 
 pacata).^ The war must be a justum helium, not the mere 
 crushing a revolt of citizens or slaves ; * and finally, the custom 
 was fixed that it must be a war, the magnitude of which was 
 attested by the fall of 5000 foes.^ 
 
 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.^ 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 ; ^ and, though instances are not lacking 
 of magistrates who on their own responsibility successfully 
 asserted this right, i" the custom became fixed that permission 
 
 ^ For the consular tribune see p. 114. 
 
 ' An important exception is recorded in Liv. vii. 11 (360 B.o.). Here the 
 consul triumphs after the abdication of the dictator, and the honour is clearly a 
 concession of the latter. 
 
 2 Liv. xxviii. 9 (207 B.C.). 
 
 * In this case the lesser honour of an " ovation " was sometimes gi-anted 
 (Liv. xxvi. 21 ; xxviii. 9). ^ Liv. xxxix. 29 (185 B.C.). 
 
 ' Gell. V. 6 ; Val. Max. ii. 8, 7. In this case, too, the ovation was sometimes 
 granted, e.g. in the slave-wars ending in 99 and 71 B.o. (Cio. de Oral. 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. 
 
 ' Val. Max. ii. 8, 1. ^ Liv. xxxiii. 23 ; xlii. 21. 
 
 * Mommsen thinks the use of it as well {Staatsr. i. p. 132), e.g. that it was in 
 consequence of the absence of the 'promocatio that the cives Momani Oampani 
 were executed in 271 (Val. Max. ii. 7, 16). 
 
 '" e.g. L. Postumius Megellus in 294 B.o. (Liv. x. 37), App. Claudius in 143 
 B.C. (Suet. Tib. 2). 
 
158 • ROMAN PUBLIC LIFE ohap. 
 
 for this display should be accorded by the state. Originally it 
 may have been granted by the people,^ 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 morey which 
 paid the expenses of the triumph.^ The case was otherwise 
 with the pro-magistrate. The proconsul had only the imperium 
 militiae, and none within the walls, and it was impossible, there- 
 fore, 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 plebiscitvm sanctioning the arrangement.^ 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.* By the close 
 of the Eepublic 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.^ 
 
 (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 ;^ 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 
 
 ^ "Senatus consulto jussuque popnli" (Liv. iv. 20). 
 
 ^ Polyb. vi. 15 Tois . . . Spia/ijSous . . . oi Sivavrai. xetpl^eLv is vpiwa, iroTi Si 
 t6 ■rrapa.ira.v oiidi avvTeKeiv, icLv pi)] rb trvviSpiov (rvyKa.Ta,Bt)Tai, Kal Si} t^v els 
 Tavra SaTrdvTiv. 
 
 ^ Liv. xxvi. 21. Of. 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 Plehs had no power to confer the imperium. 
 
 * ib. xxviii. 38 ; of. xxxi. 20. 
 
 ' e.g. the two triumphs of Pompeius in 80 and 71 B.o. See Cic. pro Lege 
 Man. 21, 62 "quid tarn inoredibile, quam ut iterum eques Romanus ex senatus 
 consulto triumpharet ? " 
 
 " A shortened form of conventio. Cf. ,5. C. de Bacchanalibus (Bruns Pontes) 
 1. 23 " haice iiti io conventionid exdeicatis." 
 
IV GENERAL CHARACTERISTICS OF THE MAGISTRACY 159 
 
 which laws or pleUscita were passed,^ and was in fact an in- 
 dispensable 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 coniio was, in fact, the great vehicle for constitu- 
 tional agitation and, as such, the most democratic institution in 
 Eome. 
 
 But the use of the emtio was not confined to the prelimi- 
 naries of legislation. It was the form in which the people were 
 summoned to witness any public act,^ and to listen to the 
 magistrate's commands when these were expressed in the form 
 of verbal edicts.^ 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,* 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.^ 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.* 
 
 The Eoman constitution recognised no right of public meet- 
 ing ; 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 
 
 ^ Gell. xiu. 16 "ctun populo agere est rogare quid populum, quod suffragiis 
 suis aut Jubeat aut vetet, contionem autem habere est verba facere ad populum 
 sine ulla rogatione." 
 
 '■* It was, e.g., the mode in wliich the people were summoned to witness 
 public executions outside the Pomerium (Cic. pro Rah. i, 11 ; Tao. Ann. ii. 23). 
 
 ' S. 0. de Bacch. quoted p. 158. 
 
 * Liv. xxxix. 15 "contione advocata cum soUemne carmen precationis, quod 
 praefari priusquam populum adloquantur magistratus solent, peregisset, consul 
 ita coepit." 
 
 ° Messala ap. Gell. xiii. 16 includes the magistratus minores. Mommsen, 
 guided by the (in this case probably false) analogy of the jun own populo agendi, 
 would exclude the aediles and quaestors (Staatsr, i, p. 200). 
 
 « GeU. l.c. 
 
160 ROMAN PUBLIC LIFE chap 
 
 to any magistrate to introduce a citizen to the confio, and give 
 Mm a right to speak [producere in contionem, dare contionem) ; ■*■ it 
 was equally open to a colleague or superior to veto this per- 
 mission ; ^ but custom must have made such a use of the inter- 
 cessio very infrequent. The right of granting a emtio 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 ; ^ 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 con- 
 cession 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 Eome. 
 
 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 imperivm ; 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.* 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 pvvocatio 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 
 
 ^ Cic. ad Att. iv. 1, 6 "habui contionem, omnes magistratus praeter unum 
 praetorem ot duos tribunes pi. dederunt " ; i. 14, 1 " Pisonls consulis impulsu 
 levissimus tribunus pi. Fufliis in contionem producit Pompeium"; ii. 24, 3 
 "Caesar is qui olim, praetor cum esset, Q. Catulum ex inferiore loco jusserat 
 dioere, Vettium in rostra produxit." 
 
 ^ Sail. Jug. 34 "ubi Memmius (a tribune) diceudi finem fecit et Jugurtha 
 respondere jussus est, C. Baebius tribunus plebis . . . regem tacere jubet." 
 
 ^ See note 1. 
 
 ■• Cic. de Leg. iii. 4, 10 "cum populo patribusque agendi jus esto oonsuli 
 praetori magistro populi. equitumque eique quern patres produnt consulum 
 rogandorum ergo." For tlie 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. 
 
rv GENERAL CHARACTEBISTICS OF THE MAGISTRACY 161 
 
 their sentences before the comitia iributa;'^ the delegates of 
 the consular criminal jurisdiction, the quaestores parriddii, and 
 duvmmri perduellionis brought their judgments before the comitia 
 of the centuries.^ 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 
 p'oetore petere).^ When the praetor had named a day (diem 
 dixit) the tribune then appeared in the assembly as the accuser.* 
 
 The right of eliciting formal resolutions from the Plebs (jus 
 mm plebe agendi) belonged exclusively to the plebeian magistrates. 
 The tribunes alone had the presidency of the concilimn, but here 
 again the growth of popular jurisdiction rendered it necessary 
 that the plebeian aediles shoiild defend their sentences before 
 the Plebs.* 
 
 (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* 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 
 urbiJ 
 
 This right necessarily did not attach originally to the 
 tribunes of the Plebs, for they were first the outcome of a 
 
 ' For the cunile aediles see Cio. in Verr. i. 12, 36 ; Val. Max. viii. 1, 7. 
 
 ^ Liv. iii. 24 ; Dionys. viii. 77. 
 
 ' Liv. xliii. 16 (169 B.C., P. Rutilius tr. pi.) "C. Claudio diem dixit . . . et 
 utrique censori perduellionem se judicare pronuntiavit, diemque oomitiis a C. 
 Sulpioio praetore urbano petiit . . . absolute Claudio, tribunus plebis negavit se 
 Gracchum morari." Antias ap. Geli. vi. 9 " Lioinius tribunus plebi perduellionem 
 ei diem dixit et oomitiis diem a M. Marcio praetore peposcit." 
 
 * Whether the tribune presided over this assembly is uncertain. When the 
 tribune in Livy (I.e.) breaks up such an assembly the act may simply refer to 
 his retirement as a prosecutor (see last note). 
 
 ^ Liv. X. 23 ; xxv. 2 ; xxxiii. 42 ; Gell. x. 6. 
 
 " Be Leg. iii. 4, 10, cited p. 160. 
 
 ' Gell. xiv. 7 " (Varro ponit) per quos more majorum senatus haberi soleret 
 eosque nominat 'dictatorem, oousules, praetores, tribunos plebi, interregem, 
 praefectum urbi' . . . 'deinde extraordinario jure tribimos quoque militares qui 
 pro consulibus fuissent . . . jus consulendi senatum habuisse.' " 
 
 M 
 
162 ROMAN PUBLIC LIFE chap. 
 
 revolution, and then for centuries the presidents of a corporation 
 independent of the people. But, after the lex Horteoisia had 
 made the concilium plebis one of the legislative organs of the 
 community, it would have been dangerous to senatorial govern- 
 ment to deny the president of this assembly the right of consulting 
 the Senate.'- 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 puUica 
 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 ; ^ 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,* 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 pontiiTs or by the Sibylline books. Eoman 
 theology recognised five categories of auspices; four of these 
 belong to the class impetrativa, one to the class oblativa.^ The 
 latter, as being the simpler and the one common to all the 
 magistrates, may be considered first. 
 
 1 This right of the tribunes originated later than 304 B.C. ; see p. 127. 
 
 2 Liv. xxii._30 ; xl. 52. Cf. Wilmanns n. 27 "L. Mummi. L. P. Cos", duot(u) 
 auspioio imperioqiie ejus Aohaia oapt(a) Corinto delete Romam redieit triumnhans " 
 
 3 p. 39. ^ 
 
 ^ Festus p. 261 "quinque genera signorum observant augures publici, ex 
 ooelo, ex avibus, ex tripudis, ex quadripedibus, ex diris." 
 
IV GENERAL CHARACTERISTICS OF THE MAGISTRACY 163 
 
 (1) Dirae. — These were a heterogeneous collection of signs 
 of ill omen. Anything that broke the silence {dlentium) ^ when 
 the auspices were being taken was of this character, such as the 
 fall of anything in a temple (caducum auspicium),^ or a sudden 
 noise, such as the squeak of a mouse.' 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 ; * the struggle of birds 
 in the air ending in the defeat of those that had flown from the 
 direction of the general's camp;^ the seizing of the boundary 
 stones of a newly laid -out city by wolves,* 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 efiective 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 efiective of auspicia ohlativa. Less potent signs could be 
 ignored by veiling the senses. The augur, who is asked by the 
 ofiiciating magistrate if there is silence, does not look round 
 him, but straightway answers " yes " ; ^ in sacrifice flutes are 
 blown to drown all other sounds,^ and the general bent on 
 fighting takes the precaution of travelling in a closed litter.* 
 If another person forced the omen on the magistrate's notice, he 
 was bound to attend to it. This announcement (nuntiatio or 
 dbnwniiatio) 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 ambus), the oldest 
 form of augural discipline, as the very words augiires and aiispi- 
 cium prove, and one that in the early Republic was used in all 
 
 * Sileniium is defined negatively ; see Cio. de Div. ii. 34, 71 " id enim 
 silentium dicimus in auspiciis, quod omni vitio caret." Cf. Festus p. 351. 
 
 ' e.g. the fall of the cap from the head of the sacrificing priest (Val. Max. i. 
 1, 5). Cf. Festus p. 64. 
 
 ' Val. Max. i. 1, 5 " occentusque soricis auditus Fabio Maximo dictaturam , . . 
 deponendi causam praebuit." 
 
 * ib. 4, 2 (the omens that T. Gracchus encountered when seeking the 
 tribunate). 
 
 6 ib. 4, 7. ' Plut. C. Gracch. 11. 
 
 ' Cio. de Div. ii. 34, 72 " lUi autem, qui in auspicium adhibetur, cum ita 
 imperavit is, qui auspicatur ' Dicito, si silentium esse videbitur ' ; neo suspicit 
 nee circumspicit : statim respondet, ' silentium esse videri.' " 
 
 8 Plin. B.N. xxviii. 2, 11. » Cic. de Dw. ii. 3t), 77. 
 
164 ROMAN PUBLIC LIFE chap. 
 
 solemn acts of state, such as the summons of the comitia or the 
 appointment of a dictator.^ 
 
 (3) Closely akin to this was the augury from the motions 
 and sounds of four-footed beasts (signa ex guadrwpedUms) ; but by 
 the close of the Republic these forms of divination, which re- 
 quired 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 tripvdm.^ 
 
 (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 ; ^ but the course taken by the lightning determined 
 its significance — if on the watcher's left, it was lucky ; if on the 
 right, unlucky.* 
 
 (5) The auspicia ex tripudiis were signs given by the feeding 
 of tame birds {aves intermmtii Jovis) — generally domestic fowls. 
 If, while they ate, something fell from their mouths (tripudiwn 
 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 puUarii. 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.® 
 
 1 Liv. i. 36 ; Cio. de Leg. iii. 3, 9. 
 
 ^ Cio. da Div. ii. 33, 71 "haec certe quibus utimur, sive tripudio sive de coelo, 
 simulacra sunt auspioiorum, auspicia nulla modo." 
 
 ' Liv. xxiii. 31 (215 B.O., Maroellus) "cui iueunti consulatum cum tonuisset, 
 vocati augures vitio creatum videri pronunciaverunt." 
 
 * Cic. de Div. ii. 35, 74 " Fulmen sinistrum auspicium optimum habemus ad 
 omnes res, praeterquam ad comitia." 
 
 ^ ib. L 15, 27 "nam nostri quidem magistratus auspiciis utuntur coactis. 
 Necesse est enim, offa objecta, cadere frustum ex puUi ore, cum pascitur. (28) Quod 
 autem soriptum 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 Cio. de Div. i. 35, 77 ; Val. Max. i. 4, 3. 
 
IV GENERAL CHARACTERISTICS OF THE MAGISTRACY 165 
 
 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.^ 
 This was little more than a formal difiierence, 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 Eoman civil day 
 {dies civilis) began at midnight ^ 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 " ^ to do so. The ceremonial for all public auspication * 
 was as follows. A sacred enclosure (templum) was marked out on 
 the required spot — within or without the pomerivm, according to 
 the purpose in view — within which the magistrate pitched his 
 tent {tabernaculum capere),^ which had one side open for observa- 
 tion. After midnight he rose, and, seated on the floor, performed 
 the rite. Its validity depended on his personal observation 
 
 In the last passage the incident connected with P. Claudius Puloher (249 B.C.) is 
 described. 
 
 ' Messala ap. Gell. xiii. 15 " Patrioioruni auspicia in duas sunt divisa potestates. 
 Maxima sunt consulum, praetorum oensorum. . . . Eeliquorum magistratuam 
 minora sunt auspicia." ^ Gell. iii. 2. 
 
 ' "Oriens de nocte silentio" (Liv. viii. 23). 
 
 * That in the camp, by means of the sacred chickens, had naturally to be 
 exempted from these formalities. 
 
 ' Cie. de Nat. Dear. ii. 4, 11 ; these tents were called minora templa (Festus 
 p. 157). 
 
166 EOMAN PUBLIC LIFE chap. 
 
 alone ; but lie might invite skilled assistants to his aid.^ 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 (repdere avspida).^ If the act had been performed in spite 
 of ill omens, or if subsequent reflection showed a flaw in the cere- 
 monial, 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 creaius) had to resign his functions.* 
 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 
 auspicim-um) * 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 Eoman 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 av^pioia oblidiva, 
 and in reporting these even the initiative might, as we shall see, 
 be taken by an augur. 
 
 Since the avspicia pullica 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.^ In the field the effective auspices were in 
 
 ' The manipulation of auspices at the end of the Republic had caused the 
 skilled assistant to he neglected (Cic, de Biv. ii. 34, 71 "apud niajores nostros 
 adhibebatur peritus, nunc quilibet"). 
 
 2 Liv. ix. 39, etc. , 
 
 * See the section dealing with the powers of the people. The mtium effected 
 the elections even of tribunes of the Plebs — but purely as a result of aiispicia 
 dblatwa. See Liv. x. 47 (293 B.C.) "exacto jam anno novi tribuni plebia 
 magistratum inierant : hisque ipsis, quia vitio crea,ti erant, quinque post dies alii 
 subfecti." 
 
 * ib. V. 31, etc. 
 
 ° Mommsen thinks that the auspices of the consuls might have alternated, 
 like their fasces, from month to mouth (Staatsr. i. p. 95). 
 
IV GENERAL CHAEACTERISTICS OF THE MAGISTRAOY 167 
 
 the hands of the consul whose turn for command had come,^ 
 or, in case of joint command, in those of the higher magistrate ; 
 thus the auspices of the consul extinguished those of the praetor.^ 
 In the later Republic the difficulty scarcely existed, as joint 
 command of two magistrates with imperium became very infre- 
 quent, 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 per- 
 manent 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 juris- 
 diction 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;* 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 im/perivm, 
 but was rendered impossible by two Valerian laws of 509 and 
 
 ' Thns in 216 B.C. Varro might have acted in defiance of the ill-omens which 
 the observation of his colleague Paulus had revealed (Liv. xxii. 42). 
 
 ■■' Val. Max. ii. 8, 2. 
 
 " Cic. de Leg. iii. 3, 6 " magistratus neo oboedientera et noxinm civem multa, 
 vinoulls, verberibus coerceto, ui par majorve potestas populusve prohibessit, ad 
 quos provocatio esto." A lex Porda 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. 11. 31, 54). 
 
168 EOMAN PUBLIC LIFE chap. 
 
 449 B.C.1 A third lex Valeria of 300 B.C. prohibited the execu- 
 tion 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 improhe factum.'^ An 
 effective sanction seems first to have been supplied by one of 
 the three Porcian laws ; ^ certainly at the end of the Eepublic 
 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.* But in theory the coercion of the tribune, 
 when used in defence of the sanctity of his own person, was not 
 subject to appeal.^ 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.* 
 
 Scourging, which is found in the early Eepublic as a, punish- 
 ment employed in the military levy,'' was practically abolished as 
 a mode of coercUio by the third lex Valeria of 300 B.C.^ 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 {ahdiKtio in carcerem, in vincula), although not 
 recognised as a penalty in Eoman 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 
 
 1 pp. 79, 109. 
 
 ^ Liv. X. 9 " cum eum qui provocasset virgis caedi seciirique neoari vetuisset, 
 si quis adversus ea fecisset, nihil ultra quam improbe factum adjeoit." 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) 
 iutestabilisque esto." Mommsen {Strafrecht p. 632) takes the expression to 
 mean that the act of the magistrate would be regarded as " vuyustifled," i.e. aa 
 an ordinary criminal offence. ^ Cic. de Rep. ii. 31, 54. 
 
 * p. 95. Dio Cass. liii. 17. 
 
 « Plin. H.N. vii. 44 ; Liv. Ep. 59. ' Liv. ii. 55 ; vii. 4. 
 
 ' The virgis caedi in the third lex Valeria (note 2) probably refers to scourging 
 as well as to death by the rod 
 
IV GENERAL CHAEACTEEISTICS OF THE MAGISTRACY 169 
 
 rare ; ^ 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.^ 
 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.^ Preventive 
 imprisonment for the purpose of securing the appearance of an 
 accused at trial was rare at Eome. The custom of giving 
 sureties or bail (vades, vadimonium) was early recognised ; * but 
 it rested entirely with the magistrate whether he should accept 
 such a security.^ 
 
 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.* 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.^ The lex Menenia Sextia (452 B.C.) fixed the highest 
 fine that could be imposed by a magistrate on his own authority 
 (multa supremo) at two sheep or thirty oxen ^ — 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 Fapiria (de muUarum aestima- 
 tione) of 430 B.C. fixed 3000 libral asses as the extreme amount 
 
 ^ Capita ap. Gell. iv. 10 " Caesar consul viatorem vocavit eumque (Catonem), 
 cum finem non faceret (of speaking in the Senate) prendi loquentem et in caicerem 
 duci jussit. " Cf. Suet. Goes. 17. 
 
 ^ The earliest recorded case is in Liv. £!p. xlviii. (Momms. Staatsr. i. p. 154). 
 Atypical instance belonging to the year 60 B.C. is described in Cic. ad Att. ii. 
 1, 8 ; Dio Cass, xxxvii. 50. 
 
 ' 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. 
 
 * The annals introduce bail as early as the trial of Kaeso Quinotius in 461 B.C. 
 (Liv. iii. 13). 
 
 ^ Liv. XXV. 4 (212 B.O.) 
 
 * Mommsen (Staatsr. i. p. 143 n. 1) takes the view that the quaestor had no 
 power of coercUio through multa and pigrms. For an opposite opinion see 
 Karlowa Sechisgesch. i. p. 171 and Buschke Multa p. 36. 
 
 ' Dionys. x. 50 iirl rrjs Xox'"Sos iKKKrialai vb/iov iKiptuffav (the consuls Sp. 
 Tarpeius and A. Aternius) iva rats Apxah i^ irdaaLS rods &KO(rfj.oui/Tas ij irapa- 
 vo/ioOvras els r^v kavrCiv i^ovfflav irnuovv • rius yhp oix HiratTiv i^9jv dXXci rois 
 {iT&rois libvois. Cf Cic. de Rep. ii. 35, 60. 
 
 ^ Dionys. I.e. ; Gell. xi. 1. Dionysius (probably by an error of the copyist) 
 represents the fine as being two oxen or thirty sheep. 
 
170 ROMAN PUBLIC LIFE chap. 
 
 that a magistrate might impose.^ The infliction of a fine larger 
 than this multa suprema subjected the oflScial who pronounced it 
 to an appeal to the people.^ The p-ovocatio 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.^ 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.* 
 
 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 boru/rum), 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,^ and like other vanished relics of antiquity 
 was revived during the party struggles of the close of the Ee- 
 public. 
 
 Another mode of coercion, specially used against magistrates 
 and the official class, was the seizing of articles of their property 
 as pledges {pignoris capio).^ It was possessed by all the magis- 
 trates who had the coercitio, and was employed rather as a 
 
 ^ Cio. de Sep. ii. 35, 60 "levis aestimatio pecudum in multa lege C. Julii, P. 
 Papirii oonsulum constltuta est" ; Liv. iv. 30 " legem de multarum aestimatione 
 pergratam populo . . . ipsi (the consuls Julius and Papirius) praeoooupaverunt 
 ferre " ; Gell. xi. 1 " in oves singulas aeris deni, in boves aeris oenteni . . . 
 Suprema laulta est ejus numeri, . . . ultra quern multam dicere in dies singulos jus 
 uon est." Gellius, however, attributes the peouuiary estimate to the lex Atemia, 
 
 " 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 theie was one, how- 
 ever, is shown by Vaepromcatio ab omnijudicio allowed by the Twelve Tables (Cio. 
 de Rep. ii. 31, 54. See p. 106). ' p. 246. 
 
 ^ Lex Tab. Bant. 1. 12 "Sei quis mag(istratus) multam inrogare volet [quei 
 volet, d/um mmoris] partus familias taxsat, liceto. " 
 
 ° e.g. in case of continued resistance to the veto. See Liv. xliii. 16 (169 B.C., 
 P. Kutilius) " Ti. Gracchi primum bona oonsecravit, quod in multa pignoribusque 
 ejus, qui tribunum adpellasset, intercession! 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. I.e. ) as an instance of " furor tribuni plebis, ductus 
 ex nonnuUis perveterum temporum exemplis." P. Clodius (68 B.C.) consecrated 
 the goods of Cicero and of Gabinius the consul (ib. § 124). 
 
 ' Lex Quinctia de aguaeduciibus (Bruns Fontes) 1. 20 " turn is praetor . . , 
 multa pignoribus cogito ooerceto. " 
 
IV GENERAL CHAEACTEEISTICS OF THE MAGISTRACY 171 
 
 punishment than as a security for good behaviour. Hence the 
 pledges were often destroyed,^ 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.^ 
 
 Although, after the provocatio had limited the right of inflict- 
 ing 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).^ 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 * was so far preserved that he had only the 
 right of arrest.^ 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.^ By the close of the Republic the distinction was 
 obliterated, and the tribunes, without formal right, summoned 
 individuals before them.'^ 
 
 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. 
 
 ' Cio de Oral. iii. 1, 4, " pignora oaedere " or " oonoidere " ; the destruction was 
 performed as an example "in conspectu populi Romani." 
 
 ^ Anct. de Vir. lUustr. 72, 6. Of. the procedure of the consul ServUius 
 against the revolutionary praetor Caelius Bufus in 48 B.C. Dio Cass. xlii. 23 
 t6v re ditppov adrou ffVV^Tpi^ev. 
 
 ' Varro ap. Gell. xiii. 12 "vocationem (habent), ut consul es 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." * p. 94. ^ See Varro ap. Gell. I.e. 
 
 ' Aediles were used in the trial of Coriolauus (Dionys. vii. 26, see p. 98) ; 
 Gracchus sent one of his viatores to drag his colleague Octavius from the Rostra 
 (Plut. Ti. Gracch. 12). Of. Liv. xxv. 4 (case of Postumius 212 B.C.) "tribuni . . . 
 ni vades daret . . . preheudi a viatore . . . jusserunt. " 
 
 ' Varro, as an antiquarian, refused to obey such a summons on the ground of 
 its illegality (Gell, xiii. 12.) 
 
172 ROMAN PUBLIC LIFE chap. 
 
 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 isi only indirectly connected 
 with the jus auspicionim. It arose from a power possessed not 
 by the magistrate only but by every Eoman 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 ohlativa) to 
 give notice of this occurrence to any magistrate about to embark 
 on an important undertaking. The most frequent occasion on 
 which such obnuntiatio^ was employed was the holding of the 
 comitia. The respect paid to this announcement by the magis- 
 trate 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, ^ or by another magistrate, would usually be 
 respected. But, while the dbnurdiatio 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 spedio 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? A patrician magistrate had, therefore, only to give out 
 that "he would observe the heavens" {se servatwrum de coelo) to 
 • suspend all meetings of the comitia and of the concilium.^ Hence 
 the edict by which the consuls summoned the comitia centv/riata 
 contained the words " ne quis magistratus minor de coelo servasse 
 
 ^ Donatas ad Terr. Ad. iv. 2, 9 "qui malam rem nuntiat, obnuntiat, qui 
 bonam adnuntiat ; nam proprie otnuntiare dicuntur augures, qui aliquid raali 
 ominis soaevumque viderint." Cf. Cicero Phil. ii. 33, 83 ; rfe Div. i. 16, 29 
 (diirarmn dbrvwntmtio). 
 
 ^ The plebeian magistrates sometimes watched for such signs, for purposes of 
 obstruction, and were then improperly said servare de coelo (Cio. ad Ait. iv. 3, 
 3). The words are properly used only of the spectio. See Greenidge, "The 
 Repeal of the Lex Aelia Fufia" in Class. Rem. vii. p. 158. 
 
 » p. 163. 
 
 * Cio. pro Sest. 36, 78 ; Dio Cass, xxxviii. 13. To discuss, as has been done, 
 whether the patrician magistrates' dbnuntiatio was valid against the tribunes is 
 to raise rather an idle question. The lex Aelia Fvfia could not have artificially 
 regulated religious belief, and the Plebs was as susceptible to auspicia as the 
 Populus (see p. 39). 
 
IV GENERAL CHAEACTEKISTICS OF THE MAGISTEACY 173 
 
 velit." ^ 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.o. two laws, the lex Aelia and the lex Fufia, were 
 passed which, amongst other comitial regulations,^ professed to 
 give rules for the obnuntiatio.^ 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 spedio; the obnuntiatio was frequently 
 employed as a political engine after this date, but its authors 
 are tribunes and augurs,* 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 ofiicials 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 coerctiio, 
 the use of which was threatened if the command was disobeyed ; 
 
 1 Gell. xiii. 15 ; minor here simply means "inferior to the consul." 
 
 * They regulated the precedence of the comitia for elections and for laws 
 (Cio. ad Alt i. 16, 13). ' 
 
 * Cic. im Pis. i, S ; de Prm. Con. 19, 46 ; m Vat. 7, 18. 
 
 * do. Phil. ii. 32, 80 and 38, 99 ; ad Alt. iv. 9, 1 ; 16, 7, etc. &e 
 Rm. vii. p. 160, 
 
174 ROMAN PUBLIC LIFE chap. 
 
 hence, if the coerciiio was not effectively put forward, the act which 
 contravened the command was valid} 
 
 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 magis- 
 trate 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.^ The tribune 
 possessed it in a supreme degree, and it was a grave infringe- 
 ment of his majesty when any other official called away a 
 portion of the people whom he was addressing.* The consul 
 might hinder the praetor from introducing a rogatio* and to 
 guard against the possibility of the dbnuntiatio when he himself 
 was holding the comitia consistently forbade him to consult 
 the heavens on that day.^ 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,* or 
 the effort to prolong a magistracy beyond its appointed tenure.^ 
 
 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.^ Nor was the power confined to 
 
 ^ The exercise of the coereitio might of course he vetoed, and in this case the 
 prohibition was of no avail. See Liv. Ix. 34 (n. 7). ^ p. 159. 
 
 2 Liv. xliii. 16 (169 B.C., P. Eutilius tr. pi.) "C. Claudio diem dixit, quod con- 
 tionem ab se avocasset." 
 
 * 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. 5 p_ 272. 
 
 ' Cf. the story in Suet. Tib. 2, "Etiam virgo vestalis fratrem (App. Claudius, 
 consul 143 B.C.) injussu populi triumphantem, adscenso simul ourni, usque in 
 Capitolium proseouta est, ne vetare aut intercedere fas cuiquam tribunorum esset." 
 
 ' 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. 
 
 ' Attct. de mr. 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 
 
rv GENERAL CHARACTERISTICS OF THE MAGISTRACY 175 
 
 Rome. The provincial governor had a similar capacity for dis- 
 missing officials, who disgraced his administration, from the 
 country under his control.'- 
 
 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 {jmis statio). The 
 decree was usually pronounced by the highest magistrate present 
 in Rome who possessed the imperivm, by the dictator,^ or by the 
 consuls * ; and, as a rule, the justitivm was proposed on a vote of 
 the Senate * 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),'^ or a public mourning following on a national disaster, 
 or the death of a distinguished man.® The cessation of the 
 justitivm (Justitium remittere '') 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 aerarivm^ 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,® 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.^* 
 
 other penalties imposed by Servilius Isauricus on Caelius Rufus (see p. 171) was 
 the transference of his functions to another praetor, rd re vpoar'^KOPTa rg &pxv 
 airoS S,\\<p T<p tu>v trrpaT-qyOiv Tpoff^ra^e. 
 
 ' Cio. in Verr. iii. 58, 134 "quaestores, legates, praefectoa, tribunos suos, 
 nmlti missos fecerunt et de provincia deoedere jusscrunt, quod illorura culpa se 
 minus commode audire arbitrarentur, aut quod peccare ipsos aliqua in re 
 judicarent." ^ Liv. iii. 27 ; vii. 9. ^ c.I.L. vi. n. 895. 
 
 * Liv. iii. 3 ; Cio. PhU. v. 12, 31. " Liv. iii. 5 ; vi. 7 ; Cic. I.e. 
 
 ' Mommsen conjectures that, on the occasion of every public funeral in the 
 forum, a s\iQrt jiistiUvm was declared [Staatar. 1. p. 251 n. i). ' Liv. x. 21. 
 
 ' Cio. de liar. Resp. 26, 55 "justitium edici oportere, jiirisdiclionem inter- 
 mitti, claudi aerarium, judicia tolll." Of. Plut. Ti. Oracch. 10 ; Cio. ^o Plancio 
 14, 33. ' Liv. vi. 7. 
 
 '" Cic. Brut. 89, 304 "exeroebatur una lege judicium Varia, ceteris propter 
 bellum intermissis." 
 
176 ROMAN PUBLIC LIFE chap. 
 
 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 ; ^ 
 and his example was followed in the last century of the Eepublic 
 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.'"'^ The higher patrician 
 magistrates, the consul and praetor, could employ no such direct 
 weapon. They could, however, indirectly cheek the passing of 
 a plebiscitum by assigning to a comitial day one of those mov- 
 able feasts, the date of which was fixed by their authority,^ and 
 thus making it a dies fastus. 
 
 Intercessio, though sometimes employed to describe the power 
 of prohibition which we have just discussed,* 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 inequit- 
 able acts performed by magistrates, who were irresponsible during 
 their year of ofiice, 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 
 
 ' p. 119. 2 Plut. Ti. Gracch. 10. 
 
 ' " (Periae) imperativae sunt, quas consules vel praetores pro arbitrio potes- 
 tatis indicunt" (Macrob. Satwn. i. 16, 6). * e.g. by Livy (x. 37). 
 
IV GENERAL CHARACTERISTICS OF THE MAGISTRACY 177 
 
 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.'- 
 
 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 (edidum ^), 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 depart- 
 ments of administration such as the military levy. Intercession 
 in all these cases rested on appellatio, the request for help 
 
 ' No instance of suoh a veto being exercised at Rome is Imown ; but it is 
 recognised in the municipal law of Salpensa (Bruns Fontea) c. 27. 
 
 ^ Or decretwm. The formal difference is slight ; by the end of the Republic 
 tdictum is a general, deoratum a more special (and generally judicial) command. 
 
 N 
 
178 ROMAN PUBLIC LIFE chap. 
 
 {oMxilium) made by the individual vvlio 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,^ and a praetor taking up 
 his position close to the chair of his colleague, waiting for 
 appeals from his decisions.^ 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 {provinciobe)? 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 * 
 and criminal jurisdiction, and against the exercise of admini- 
 strative power, especially that of the consul. In such cases as 
 the consular conscription or the quaestor's collection of the taxes,' 
 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.® 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 irilunorum) ; '' the collegium weighs the 
 arguments and then gives its verdict, sometimes with the grounds 
 of its decision.* It is possible that the college may in these 
 cases have agreed to give the finding by a majority of votes, 
 
 ' Liv. iv. 55. 
 
 ^ Caes. Bell. Civ. iii. 20 (Caelius Rufus) "tribunal suum juxta C. Treboni 
 praetoris urban! sellam ooUooavit, et si quis appellavisset . . . fore auxilio pollice- 
 batur." For the consequent necessity of the presence of the tribunes in Rome 
 seep. 94. 
 
 ^ 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. I.e. 
 
 * Of the four private-law speeches of Cicero, two, those for Quiuctius and 
 TuUius, show the request for tribunioian interference with the pr&etor's jurisdiction. 
 Cf. Cic. Acad. Prior, ii. 30, 97 "postulant ut exoipiantur haeo inexplicabilia' 
 Tribunum aliquem censeo adeaut {ai. videant) ; a me istam exceptionem nunquam 
 irapetrabunt." 6 L;y_ xxxiii. 42. 
 
 8 The tribunes promise "cognituros se de quo appellati essent" (Liv. xlii. 32), 
 
 ' Liv. xlii. 33. 8 A^oon. in Milon. p. 47. 
 
IV GENERAL CHARACTERISTICS OF THE MAGISTRACY 179 
 
 although, if one tribune persevered in the veto, he might over- 
 rule 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,^ became 
 at a very early period of the Eepublio 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,^ against leges, including formal acts such as 
 the lex curiata,^ and against plebiscita* 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,® and indeed before the speeches 
 for and against the law had been made.^ 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 ; " in elections we 
 find the tribune interceding after the first tribe had voted. ^ 
 
 (iii.) The intercession against a decree of the Senate {senaius 
 consuUvm) was in theory a veto of the magistrate's decree on 
 which he had taken advice. It resided originally with the par 
 majorm potcstas. It was exercised by the tribune against the 
 tribune,^ consul,!' and praetor,^! and throughout the greater part 
 of the history of the Eepublic by the consul against the consul.^^ 
 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. i* But, when in course of time the 
 
 1 p. 174. '^ Liv. iv. 50 ; xxv. 2. 
 
 3 Cio. de Leg. Agr. ii. 12, 30. * Plut. Ti. Gracch. 10. 
 
 ' Cic. ad Att. iv. 16, 6 ; Ascon. in Cornel, p. 58. 
 
 ' Liv. xlv. 21 "cum ita traditum easet, ne quis prius interoeclat legi, quam 
 privatis suadendi dissuadendique legem potestas facta esset." 
 
 7 Morams. Staatsr. i. p. 285. ' Liv. xxvii. 6. 
 
 9 Cia. pro Sest. 31, 68. " ib. 34, 74. 
 
 " Cic. ad Fam. x. 12, 3 and 4. 
 
 ^^ Liv. XXX. 43. Consular intercession against tlie praetor was unnecessary, 
 since tlie praetor did not usually summon the Senate while the consul was at 
 
 13 Val. Max. ii. 2, 7 "lUud quoque memona repetendum est, quod tribunis 
 plebis intrare curiam non lioebat, ante valvas autera positia subselliis deoreta 
 patrum attentissima oura examinabant, ut, si qua ex eis improbassent, rata esse 
 non sinerent. Itaque veteribus senatus consultis C. litera subscribi solebat, 
 
180 ROMAN PUBLIC LIFE oitap. 
 
 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 sonatus comuUum 
 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.G.)} 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 declara- 
 tion often made by a magistrate in the Senate, e.g. by the consul, 
 that " he would not allow any business to proceed " {non passwrwm 
 quicguam agi)? 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 ^ or while the voting was in 
 progress.* 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 audoritas). 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),^ 
 and sometimes attached to a particular decree a general vote of 
 censure on any magistrate who should veto it.* The inter- 
 cession on certain kinds of senatus cmsuUa 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.'^ 
 
 eaque nota signifloabatur Ula tribunos quoque censuisse." In S.0.0. translated 
 into Greek it appears as ISofec {S.0.0. de Thisiaeis, Brans Forties). In those 
 given in Cio. ad Fam. viii. 8, 6, the letters " i. n." (sometimes interpreted 
 "interoessit nemo") are probably a corruption for censuere. 
 
 ^ Momms. Staatsr. i. p. 282 n. 7 ; combated by Willems Le Shiat p. 200 n. 2. 
 
 " Liv. xxvi. 26 ; xxx. 40 ; cf. xlii. 10 "Popillius . . . prae se ferens si quid 
 decernerent, intercessuruni, collegam deterruit." 
 
 » Val. Max. ii. 2, 7. 
 
 •• Cio. ad Fam. x. 12, 3. » Liv. xxxvi. 40. 
 
 * Cio. ad Fam. viii. 8, 6 " qui impedierit prohibuerit, eum senatum existimare 
 contra rem publicam fecisse." 
 
 ' Cic. de Prov. Oon. 8, 17 ; pro Domo 9, 24. Intercession in jurisdiction and 
 administration is sometimes forbidden in municipal laws : Lex Ruhria i. 50 • 
 Lex Ursonensis c. 72 (Bnins Fontes), 
 
IV GENERAL CHARACTERISTICS OF THE MAGISTRACY Ul 
 
 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 descrip- 
 tion 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 sjnA prensio (i.e. the quaestors 
 and aediles) could be summoned into the praetor's court.^ 
 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 
 eertain 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 primtus 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 furtwm; if he 
 assaulted him in a manner not justified by his power of coercitio, 
 it was injwia. 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 expansiye conception of perduellio, and punished 
 criminally.^ A few early laws, such as the fifth century lex de 
 ambitu, were directed exclusively against magistrates or candi- 
 dates for a magistracy ; these laws doubtless specified the 
 
 ^ Varro ap. Gell. xiii. ]3 "Qui potestatem neque vooationis 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. 
 
 * Nothing is Icnown 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 pMicus, For the 
 early procedure see Mommsen Strafrecht p. 768, 
 
182 ROMAN PUBLIC LIFE chap. 
 
 penalty to be imposed,^ but their interpretation was left to the 
 ordinary organs of criminal justice, the comitia. 
 
 But, as the foreign activity of Eome 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 de- 
 scribed 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.^ Their superior potestas and, when the 
 injury was done to their person, their sacrosanciitas 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.^ This political juris- 
 diction was not, however, directed solely against magistrates, 
 but against any individuals who held an official position, against 
 
 ' In Polybius' time bribery was a capital offence at Rome (Polyb. vi 
 56). 
 
 2 Polyb. vi. 14. The people are often judges of money penalties, when the 
 offence can be valued in money, Kal yndXurra rois ras 4wi<pav(is ((rxilK/n-as dpxds, 
 Bavdrov di Kpivei /i6vos. Cf. c. 15. The greatest source of the power of the 
 people is that d.Tron^e/j^i'ovs rijv apxr]" ip roirtfi Set rhs eiBinas i7r^x«i/ tuv 
 ireirpwyfiAviav, 
 
 ^ 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. Oaes. 23 (Caesar on leaving for Gaiil) " a L. Antistio, 
 tr. pi., postulatus, appellato demum oollegio, obtinuit, cum reipublicae causa 
 abesset, reus ne fieret." In the case of the trial of the censors of 169 B.C. (Liv. 
 xliii. 161 the accused agree to be put on their trial during their tenure of office. 
 
IV GENERAL CHARACTERISTICS OP THE MAGISTRACY 183 
 
 the staff-ofi&cers (legati) of a general,^ against envoys ^ and senators,^ 
 and even against the farmers of the revenue (publioani).^ The 
 usual victims, however, were consuls and praetors, and the 
 offences charged were mainly such as came under the conceptions 
 of treason,^ or were open violations of the rules governing 
 the magistracy ; ^ but sometimes they were wrongs done to 
 individuals, such as might have come before the civil courtsJ 
 
 The growth of Rome's provincial territory made the continu- 
 ance 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 Eome. 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 
 oflBce at Eome. 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 petendonmi) 
 
 '' Llv. xxix. 22 (204 B.O.). Pleminius and his colleagues were "productl ad 
 populum ab tribunis." 
 
 ^ ib. vi. 1 "Q. Pabio . . . ab Cn. Mardo tribuno plebis dicta dies est, quod 
 legatus in Gallos, ad quos missus erat orator, contra jus gentium pugnasset." 
 
 ' ib. Sp. 69 " L. Appuleius Satuminus . . . Metello Numidico, eo quod in 
 earn (the agrarian law) non juraverat, diem dixit." 
 
 * ib. XXV. 3 (Postumius a puUicanus, for shipwrecking and false reports 
 of shipwreck). 
 
 ^ e.g. waging war without authorisation (Ascon. in Oomelian. p. 80, 104 B.C.), 
 disgraceful flight imperilling the safety of others (Liv. xxvi. 2, 211 B.C.). 
 
 " 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. 
 
 ' Liv. xliii. 7, 8 (170 B.C.). 
 
184 ROMAK PUBLIC LIFE chap. 
 
 were based on the general principle that for patrician magis- 
 tracies any citizen was eligible,'- for plebeian only those of 
 plebeian birth. ^ 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 neces- 
 sary for the fulfilment of such responsible functions. 
 
 In the first place, citizenship had not its private-law con- 
 notation. Freedmen may not have been de jure excluded from 
 office;* 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.* 
 
 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 cend were wholly excluded from the magistracy. The 
 length of service required from the infantry soldier is unknown ; 
 from the egues equo pvhlico it was ten years' service " in the camp 
 or the province,"^ as late as the time of C. G-racchus (124 B.C.).® 
 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,^ 
 and the military qualification, although it stUl partially survived 
 in municipal law,* 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 
 
 ' Tao. Ann. xi. 22 "apud majores . . . cunctis civium, si bonis artibus 
 flderent, licitum petere magistratus. " 
 
 2 Festus p. 231 "plebeium magistratum neminem capere licet, nisi qui ex 
 plebe est." Cf. Suet. Aug. 10. 
 
 ' This seems sbown by Suet. Olwud. 24 (see p. 135). 
 
 * Momms. Staatsr. i. p. 488. Exceptional elections of the sous of freedmen 
 are found in 304 B.O. (Liv. ix. 46, Cn. Flavins (see p. 185) as aedile) and in the 
 year 100 B.O. (App. B.O. i. 83). 
 
 ^ Lex Julia Municipalis (Bruns Fontes) 1. 92 "in oastreis inve pro- 
 vincia. " 
 
 ° Pint. G. Gracch. 2. 
 
 ' There is also evidence for this as the minimum age at a period earlier than 
 Cicero's political career ; see Cie. in Verr. ii. 49, 122. 
 
 8 In Caesar's municipal law (45 B.C.) the qualification for a municipal magis- 
 tracy is either thirty years of age or a certain length of service — six years on 
 foot or three on horseback {L./.M. 1. 89). 
 
IV GENERAL OHAEAOTERISTICS 01 THE MAGISTRACY 185 
 
 as the trade or profession was exercised.''- This was, to some 
 extent, an outcome of the prejudice against /3avavo-ia found 
 amongst all military peoples ; ^ but, as offices at Eome 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 con- 
 demnation. It is a mistake to suppose that there was a definite 
 class of infames excluded from office at Eome. Certain criminal 
 laws made temporary or permanent exclusion from the magis- 
 tracy one of their sanctions. Exclusion on kindred grounds — 
 notorious moral lapses of the candidate, his previous condemna- 
 tion 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.^ 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 j* 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.^ 
 
 ' Liv. ix. 46 (of the election of Cn. Flavius to the curule aedileship) " Invenio 
 in quibusdam annalibus, cum adpareret aedilibus . . . neqne acoipi nomen, quia 
 scriptum faceret, tabulam posuisse et jurasse, se scriptum non factunim." 
 
 ^ Cio. de Off. i. 42, 150; in later Roman law spoken of as nlitaa; see 
 Greenidge Infmrda im Roman Law pp. 12, 193. 
 
 » Cio. pro Cluent. 42, 119 ; Sohol. Bob. in Cic. pro Sulla 5, 17, p. 361 Orell. ; 
 Cio. ^0 Rose. 0am. 6, 16 ; Tertall. de Sped. 22 ; Asoon. in orat. in Tog. Gand. 
 p. 115 ; Lex Julia Munic. 1. 104 ; Dig. 48, 7, 1. All these passages are discussed 
 in Greenidge Infamia in Roman Law pp. 18-40 and 187. 
 
 * Liv. iii. 35 "Ars haeo erat, ne semet ipse creare posset; quod praeter 
 tribunes 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.O. iii. 1, 1). 
 
 ' Cio. de Leg. Agr. ii. 8, 21 " Lioinia est lex atque altera Aebutia, quae non 
 raodo eum, qui tulerit de aliqua curatione ac potostate, sed etiam collegas ejus, 
 cognatos, afhues excipit, ne ois ea potestas curatiove maudetur," 
 
186 ROMAIf PUBLIC LIFE cHAp. 
 
 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.^ 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),^ 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 kx Villia, a plebiscitum 
 of a comprehensive character, was passed, which specified the 
 age at which each magistracy might be held ; ^ 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.^ Finally, Sulla in 81 B.C. re-enacted 
 the rules about the c&rtus 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.® 
 
 The validity of election was dependent on the observance 
 of certain forms, the first of which was concerned with the 
 
 ' Liv. vu. 42 "aliis plebiscitis cautum ne quis eundem magistratum intra 
 decern annos caperet ; neu duos magistratus uno anno gereret." Cf. x. 13. 
 
 " Cic. de Leg. Agr. ii. 9, 24 " ne in iis quidem magistratibus quorum certus 
 ordo est." 
 
 ' Liv. xl. 44 "eo anno rogatio primum lata est ab L. Villio tr. pL, quot 
 annos nati queraque magistratum peterent caperentque." It probably accepted 
 the age of twenty-eigbt for the^quaestorsbip ; the minimum age for the consulship 
 in the time of Cicero was forty-three (PhU. v. 17, 48) ; that for the praetorship 
 is quite unknown ; thirty-five and forty have been conjectured. 
 
 * Cic. ad Fam. x. 25, 2 "non e^.t annus hie tibi destiuatus, 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" (I.e.) or "suo anno" (Cic. ^o Mil. 9, 
 24). Momms. Slaatsr. i. pp. 527, 529. The principle of at least one year's intei:vai 
 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). 
 
 ^ App. B.O. i. 100 Kal (TTpa.T'qyelv aTrstire irpiv rafueufftu Kal itTrareieLV irpiv 
 (TTpaTiiyijirai, Kal ri/v ipxh" t^" aurriv a.S8is Apx^tv iKilAvire irpiu Stt) Sixa 
 dtayev^ffOai, 
 
/v GENERAL CHARACTEEISTICS OE THE MAGISTRACY 187 
 
 presiding magistrate. While the tribune alone could be the 
 president at the election of plebeian magistrates, the consuls and 
 praetors created the tnagistratus 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 nundimim, intra legitimos 
 dies) ^ before the date of election. A list of the candidates 
 was then prepared for the people^ 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 between the years 63 and 
 60 B.C. some unknown law enacted that they shoidd make the 
 professio in person,* and a similar clause was again inserted in 
 Pompeius' law de jwe magistratuum of 5 2 B.C.* 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 (can- 
 didatus), surrounded by a cortfege 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 
 
 ' Cio. ad Fam. xvi. 12, 3 "se praesentem trinum nundinum petiturura '" ; 
 Sallust, Cat. 18 "post paulo Catilina peouniarum repetundarum reus prohibitus 
 erat consulatum petere, quod intra legitimes dies profiteri nequiverit." The 
 interval was probably twenty-four days. See the section on the comitia. 
 
 2 Hut. Aem. Paul. 3 ; Sull. 5. 
 
 ' Cic. de Leg. Agr. ii. 9, 24 (63 B.O.) "praesentem profiteri jubet, quod nulla 
 alia in lege unquam fuit, ne in iis quidem magistratibus quorum certus ordo est " ; 
 Suet. Caea. 18 (60 B.C.) " cum ediotis jam oomitlis ratio ejus haberi non posset . . . 
 et ambienti ut legibus solveretur multi contradieerent, ooaotua est triumphum, 
 ne oonsulatu exoluderetur, diniittere." Cf. Plut. Caes. 13. 
 
 * Dio Cass. xl. 56 (Pompeius) rbv irepl t&v ipxai^pecnSv vbiiov rhv KeKeiovTo, 
 Toii apx'fl" Ti.va iirayyiWovras is riiv iKK\ricrtav irivTUS iwavTfV, &(TTe /iriSiva 
 airbvTa alpe^ffdat, irapTj/xekTjf/.ivoi' tws di^evedjaaro. 
 
188 ROMAN PUBLIC LIFE chap. 
 
 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,^ and a series of laws — 
 not longer, however, than the chain of enactments which Eome 
 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.^ 
 
 If we believe that the king during his lifetime nominated 
 his successor,^ 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 magis- 
 tracies; 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,* 
 
 ' Hence their association with sequestres — the agents in whose hands the 
 candidate deposited money. Cio. pro Plane. 18, 19 ; Q. Cic. de Pet. Oons. 14, 57. 
 
 ^ Lex Jul, Munie. 1. 132 "neve quis ejus rationem comitieis couoiliove 
 [habeto, nelve quis quem, sei adversus ea comitieis conciliove] oreatum est, 
 renuntiato." In 67 B.C. the consul Piso, questioned " Palicanum num suffragiis 
 populi consulem oreatum renuntlaturus esset," answered "uon renuutiabo" 
 (Val. Max. iii. 8, 3). 
 
 ' p. 47. 
 
 * Mommsen [Staatsr. i.p. 599) places this change in 222 B.C. Liv. xxxi. 5, etc, 
 
IV GENERAL CHARACTEKISTICS OF THE MAGISTRACY 189 
 
 from 153 B.C. on 1st January.^ 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.^ 
 
 During this interval the magistrate elect was dedgnatus, and, 
 though his im/pmvm or potestas was necessarily dormant, he had 
 a distinct position in the state and could exercise certain official 
 functions preparatory to the magistracy, such .^s issuing edicts, 
 which would be binding after his entrance on office.* Even 
 before the renuntiatio he had taken an oath of fealty to the state * 
 — 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 lexfi 
 Refusal to take it within the period of five days was followed 
 by loss of office ; * only the Flamen Dialis, who might not swear, 
 could claim exemption, and with the people's consent take the 
 oath by deputy.^ During the later Republic we also find evi- 
 dences of an oath which closed the tenure of office ; the magis- 
 trates, 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.® 
 
 The assumption of the magistracy carried with it the right — ^ 
 
 ^ Fasti Praenestini {O.I.L. i. p. 364) "[ann]u3 nov[us inoipit], quia eo die 
 mag[istratus] ineunt : quod coepit [p. R.] c. a. DCI." 
 
 ^ Quaestors (CSo. in Verr. Act. i. 10, 30 ; Lex de XX. quaest. In Bnins Fontes 
 1. 15) ; tritunes (Dionys. vi. 89). 
 
 ' Dio Cass. xl. 66 ; Cic. in Verr. i. 41, 105 ; liv. xxi. 63. 
 
 * The execratio is given ty Pliny {Pameg. 64), " explanavit verba quibus caput 
 oiium, domum suam, si sciens fefellisset, deorum (Jupiter and the Dii Penates) irae 
 consecraret." 
 
 " Cic. ad Att. ii. 18, 2 "habet . . . Campana Lex (of the consul Caesar in 59 
 B.C.) execrationem in contione candidatorum." 
 
 * 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. 
 
 ' Liv. I.e. 
 
 8 Cic. ad Fam. v. 2, 7 ; pro Sulla 1 1, 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. 
 
190 ROMAN PUBLIC LIFE ohap 
 
 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 imperivm, 
 on a scale, as will be seen when we describe the different magis- 
 tracies, proportioned to the strength of the imperium. The 
 other magistrates possessed only the servants — scribae, praecones, 
 aecensi, viaiores, servi publid — 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 in- 
 herited by the Republican magistrate ; but the royal robe could 
 be used only in the triumphal procession, where the other regal 
 insignia were revived,^ or for the celebration of festivals.^ 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) ^ 
 worn round his neck or on his waist, and the axes, which can 
 now be enclosed in the fasces, were added signs of the un- 
 trammeled 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 Re- 
 publican 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 
 
 > p. 45. " Liv. V. 41. 
 
 ' The dagger is mentioned more frequently than the sword [gladius] as the 
 distinctive sign of military power. Momms. Staatsr. i. p. 434 n. 1. 
 
[V GENERAL CHARACTERISTICS OF THE MAGISTRACY 19] 
 
 horse when they met a magistrate riding,^ 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 (jperduellio). 
 
 § 2. T}ie 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 lias not 
 been already anticipated. 
 
 The Dictator 
 
 The only true mode of creating a dictator (dicere dictatorem) 
 was through nomination by one of the consuls,^ who, as we have 
 seen, to avoid unfavourable omens, pronounced his selection 
 between midnight and morning.^ 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 {sortUio)A 
 But this purely consular function came in time, like all extra- 
 ordinary 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 
 
 1 Hence such phrases as decedere via, descendere equo, adswrgere 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). 
 
 2 A decree of the augurs in 426 B. 0. declared the consular tribunes capable of 
 this nomination (Liv. iv. 31). 
 
 3 p. 165. 
 
 ^ Liv. viii. 12 " Aemilius, cujus tum fasces erant, coUegam dictatorem dixit " ; 
 iv. 26 " Sors, ut dictatorem diceret (nam ne id quidem inter collegas convenerat) 
 T. Quinctio evenit"; iv. 21 "Verginius, dum collegam oonsuleret, moratus, 
 permittente eo, nocte dictatorem dixit." 
 
192 ROMAN PUBLIC LIFE chap. 
 
 third century B.C. to the earliest times.'^ Finally, the point was 
 reached at which the Senate not only suggested the advisability 
 of nomination but the name of the nominee ; ^ opposition to 
 these instructions was constitutionally possible,* 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.* The ancient provision that 
 the dictator could be nominated only on Koman 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 
 Bomanus was, in true Eoman fashion, liberally interpreted to 
 include the whole of Italy .^ After the nomination of the new 
 magistrate his imperiwn was confirmed by a lex curiata.^ 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;^ and the 
 axes were seen with the fasces even within the walls.* The 
 dictator appointed to meet an emergency either of war or revolu- 
 tion^ bore no special designation which had reference to this 
 emergency, but was aptly described as created for carrying on 
 the business of the state (m gerwndae causa)y 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 
 
 ' Liv. iv. 17 " .?enatus . . . dictatorem dioi Mam. Aemilium jussit " ; vii. 12 
 " dictatorem dici C. Sulpioium plaouit. Consul ad id adcitus C. Plautiua dixit." 
 
 " ib. xxii. 57 (216 B.C.) "dictator ex auctoritate patrum dictus M. Junius." 
 
 ^ ib. Mp. 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. 
 
 * Mommsen in G.I.L. i. p. 557. 
 
 " 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." ^ ib. ix. 38-39. 
 
 ' 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 feoerat, cum 
 fascibus viginti quatuor processit "). 
 
 ^ Liv. ii. 18 "Creato dictatore primum Eomae, postquam praeferri secures 
 viderunt, magnus plebem metus incessit." 
 
 » p. 85. 
 
 '" e.g. the dictator named by Livy (ix. 26) as "quaestionibvis exercendis" (314) ia 
 mentioned in the Fast. Capitol, as " rei gerundae causa " (Momms. Staatsr. ii. p. 
 157 n. 2) ; a dictator "seditionis sedandae et rei gernndae causa" is found in the 
 Fasti for 368. 
 
IV THE INDIVIDUAL MAGISTRACIES 193 
 
 (comitiorum hahendorum causa),^ on one occasion for making out 
 the list of tie Senate (legendo senatui),^ and others for purely- 
 ceremonial or religious purposes — for the celebration of games 
 {Ivdorum faeiendorum causa) ^ and the ordering of festivals 
 (feriarum constituendarum causa),* and for driving the nail (clams 
 annalis) into the temple of Jupiter {clavi figendi causa),^ an act of 
 natural magic which was supposed to be a specific against pesti- 
 lence. These dictators imminuto ju/re, appointed for a special 
 purpose, were expected to retire as soon as the function was 
 completed.* The six months' tenure of the dictator rei geru/ndae 
 causa'' 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.^ 
 
 The creation of a dictator did not abolish the other magis- 
 tracies 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,^ and 
 even those troops which were levied by the dictator took the 
 oath of obedience to the consuls as well.^" The praetors still sat 
 in the courts, and lesser officials continued to perform the sub- ■ 
 ordinate functions of government. But it was felt that under a 
 dictator all magistrates existed on sufferance, with the exception 
 of those of the Plebs.^^ It is certain that the presence of a 
 
 ^ Liv. vii. 24 "qui aegris oonsulibus comitia haberet." Cf. u. 26 (absence 
 of consuls in the field) and ix. 7. 
 
 " ib. xxiM. 22. In 216 B.o. M. Fabius Buteo was appointed dictator "qui 
 senatum legeret." ^ ib. viii. 40. 
 
 * ib.vii. 28 (for establishment of/ermeon the occasion oiaprodigivm); "dictator 
 Latinarum feriarum causa" in Fast. Cap. (O.I.L. i. p. 434) for the year 257 B.C. 
 
 ^ The first instance was on the occasion of the great pestilence in 363 B.O. 
 (Liv. vii. 3 " Lex vetusta est ... ut, qui praetor niaximus sit, Idibus Septem- 
 bribus clavum pangat "). Cf. Fest. p. 56. 
 
 ' Cic. de Off. ill. 31, 112 (see p. 183) ; cf. Liv. vii. 3. L. Manlius, appointed 
 " clavi figendi causa," acted " perinde ao reipublicae gerendae . . . gratia creatiis 
 esset," and was forced to abdicate. ' p. 84. 
 
 8 This is Mommsen's interpretation {Staatsr. ii. p. 1 60 n. 4) of Liv. xxx. 39. 
 C. Servilius Geminus had been appointed dictator comitiorum causa — -"Saepo 
 comitia indicta perfici tempestates prohibuerunt. Itaque, cum prid. Id. Mart, 
 veteres magistratus abissent, novi subfecti non essent, respublica sine curulibus 
 magistratibus erat.'' 
 
 ' Liv. Iv. 41. The consul is here said " auspioio dictatoris res gerere." 
 " ib. ii. 32 " quamquam per dictatorem dilectus habitus esset, taraen, quoniam 
 in consulum verba jurassent, sacramento teneri militem rati." 
 
 '■^ This view has led to the exaggerated statement of Polybius (iii. 87) that, on 
 the establishment of a dictator, irapaxpri^o. dia\6e(r8ai avfi^aii^eL Trdiras rhs cLpxct,s 
 iv tJ 'Pii/t2/ t'Mjv tQv drj/idpxdiv : which has been copied by later Greek writers. 
 
 
 
194 ROMAN PUBLIC LIFE chap. 
 
 dictator brouglit no legal diminution to the powers of the 
 tribune ; it is equally certain that constitutional custom dictated 
 that the auxilivm of these citj magistrates should not be effective 
 when the state was under martial law.^ 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 Eome, of taking 
 money from the aerarium without a decree of the Senate.^ 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.^ 
 
 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,* probably by 
 the lex Valeria of 300 B.C.^ — a change which, while not hamper- 
 ing 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 coUeagueship 
 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 
 
 ^ This is clearly shown by the attitude of the dictator L. Papiriiis Cxirsor 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 llomanura imperium "). Zonaras expresses the fact and 
 not the law (vii. 13 oUt iyKoA^irai ns airi} oBt' ivavrlov n Siairpa^aaBai. tax"^" 
 oiSk o! SiiiMpxfiC). 
 
 ^ Zouar. vii. 13 oifre iK t&v Si/jUoctIwc xP'IM"'''""' avoKGiaai n i^riv airif, d ii^ 
 
 2 Liy. Ep. 19 (249 B.C.) "Atilius Calatinus primus dictator extra Italiam 
 exercitum duxit " ; Dio Cass, xxxvi. 17 (the dictatorship was limited to Italy) Kal 
 oiiK &v evpeddt] dLKTdTOjp oideU dXXoce, ttX^v ivbs h XiKeXiav, Kal ravra (x-qSkv 
 irpd^avTos, alpedels. 
 
 * Festus p. 198 "optima lex in magistro populi faciendo, qui vulgo Dictator 
 appellatur, quam plenissimum posset jus ejus esse significabatur . . . postquam 
 vero provocatio ab eo magistratu ad populum data est, quae ante non erat, 
 desitum est adioi 'ut optima lege,' ut pote imminuto jure priorum magistrorum." 
 
 ^ p. 168. It could not have been a consequence of the Valerio-Horatian laws 
 of 449 B.C. (see p. 109). 
 
IV THE INDIVIDUAL MAGISTRACIES 195 
 
 was elected dictator,^ presumably at the comUia centwiata 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.^ 
 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.* The last dictator (comitiorum habendorum causa) 
 was appointed in 202 ;* 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.^ 
 
 The Magister Equitvm 
 
 Every dictator, no matter for what purpose appointed,* 
 nominated as his delegate a master of the horse,^ who, unlike 
 other delegates, possessed the imperium, six fasces,^ and a rank 
 equal to the praetor.^ These distinctions justify the assertion 
 that he was a magistrate,^" and apparently one of curule rank, 
 even though his tenure of power was strictly dependent on that 
 of his nominator.il Like a magistrate he asked for a lex curiata 
 
 ' Liv. xxii. 8. 
 
 ^ Livy (xxii. 25) describes it as a rogatio "de aequaudo magistri equitum et 
 diotatoris jure." Of. c. 26 " de aequato imperio. " 
 
 * Liv. xxii. 57, M. Junius Pera. * Fast. Capitol. 
 
 ' 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 Cioero to be wholly unconstitu- 
 tional, ad Att. ix. 15, 2 (49 B.C.) "volet (Caesar) . . . vel ut consnles roget 
 praetor vel dictatorem dlcat, quorum neutrum jus est. Etsi si Sulla potuit 
 elficere, ab iuterrege ut dictator dioeretur, our hio uon possit ? " The nomination 
 of Caesar was regular in so far as a special lex was passed which empowered the 
 praetor to nominate (Caes. B. 0. ii. 21 ; Dio Cass. xli. 36). 
 
 ' An exception is found in 216 B.c. M. Fab. Buteo was appointed "dictator- 
 sine mag. eq. senatus legendi causa" (see p. 193). 
 
 ' In the single case of the election of a dictator, the magister equitum was also 
 elected (Liv. xxii. 8). 
 
 8 Dio Cass. xlii. 27 ; Antonius, as Caesar's magister egmtwm, had six lictors. 
 
 ' Cic. de Leg. lii. 3, 9 " equitatumque qui regat, habeto pari jure cum co, 
 quicumque erit juris disceptator." 
 
 1° Pompon, in Dig. 1, 2, 2, 19 "et his dictatoribus magistri equitum injungo- 
 bantur sic, quo modo regibus tribunl celerum : . . . magistratu.s tamen habebantur 
 legitimi." 
 
 ^' Liv. iv. 34 "jussoque magistro equitum abdicare se magistratu, ipse deinde 
 abdioat." 
 
196 ROMAN PUBLIC LIFE chap. 
 
 for the ratification of Ms imperium,'^ and he seems to have had 
 power to question the people and to transact business with the 
 Senate.^ In these three respects the office diifered from that of 
 the tribuni celerum of the monarchy. As the dictator was a lesser 
 king, the magister equitnm 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.* 
 Although originally employed, as the name signifies, for the sole 
 leadership of the eguites under the higher imperivm 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 Eome.* The office 
 was a useful one, as it gave two generals of tried military 
 capacity to Eome in time of danger, and obviated the dis- 
 advantages that might follow from the dictator's having to use 
 incompetent consuls or praetors as his subordinates. This con- 
 sideration also explains why, in order to secure experienced men 
 for the post, the custom became fixed of choosing ex-consuls or 
 ex-praetors.^ 
 
 The Consuls 
 
 The consuls, after they had ceased to be designate, 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 cv/riae. Their first act was the 
 taking of the auspices ; these were always favourable, for the 
 haruspex who stood by^ 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 
 
 1 Liv. ix. 38 "Papirius C. Junium Bubulcum magistrum equitum dixit : atque 
 ei, legem curiatam de iraperio ferenti, friste omen diem diffidit." 
 ^ Cio. de Leg. iii. 4, 10 ; see p. 160. 
 
 * Liv. viii. 32 eq. ; of. xxii. 27 "in . . . civitate, in qua magistri equitum 
 virgas ac secures dictatoris tremere atque liorrere soliti sint." 
 
 * ib. iv. 27 "reliotoque (at Eome) L. Julio magistro equitum ad subita belli 
 ministeria." 
 
 ^ ib. ii. 18 ; Dio Cass. xlii. 21 (Caesar rbv 'kvTiiviov, /mjS' iurparriyriKirTa, 
 iirirapx^v irpoa-eXd/xevos), 
 
 ' Dionys. ii. 6 tuv Si irapbvTuv Ti.vh ipviBocrKdiroiv luaSbv ix toO Sijiioirlov 
 ^cpifievoi. 
 
IV THE INDIVIDUAL MAGISTRACIES _ 197 
 
 was the summons of the Senate, ^ and was one which showed 
 that they were the magistrates who stood highest in the Eoman 
 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.^ The rank of the 
 consuls is sufficiently exhibited by the fact that it was chiefly 
 by their names that the years were dated,* and by the ceremonial 
 respect which was paid to them by the other magistrates.* 
 
 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,^ 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.^ 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 
 
 ' Cio. post Red. ad Quir. 5, 11. The first meeting of the Senate was in early 
 
 times held by the elder of the two consuls (6 Tpea-^irepos tOiv iir&Tinv Dionys. 
 
 vl. 57). 
 
 ^ Cic. pro Plane. 25, 60 " honorum populi finis est oonsulatus. " 
 
 ' App. B.G. ii. 19. In formal dating the names of the two chief praetors 
 
 were added. See the Senatus Consultum de Asclepiade (Bruns Pontes). 
 * Suet. Fib. 31 ; see p. 191. 
 
 " Liv. xliv. 17 (169 B.C.) "designates extemplo sortiri placuit provincias." 
 ^ ib. ii. 33 " consul alter Romae mansit, alter ad Volscum bellum missus " ; 
 
 cf. Dionys. vl, 91 ; Liv. ix. 42. 
 
198 ROMAN PUBLIC LIFE chap. 
 
 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,'- 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.^ 
 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.^ 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,* 
 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 com- 
 mands 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 con- 
 cerned 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 
 
 ' Cio. de Rep. ii. 31, 55. 
 
 ^ Pestus p. 161 " majorem oonsulem L. Caesar putat dici, vel eum penes 
 quein fasces sint, vel eum, qui prior faotus sit." The first explanation is doubtless 
 the correct one. 
 
 ' Suet, Gaes. 20. 
 
 * Polyb. vi. 12 7ra<rwi' elai, Kipioi Tuif 57jfiO(ricav Trpd^euv, 
 
IV THE INDIVIDUAL MAGISTRACIES 199 
 
 adjudicating on questions of property between the cities of 
 Italy.'- 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 ; ^ 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.* We also find the consul presiding over a 
 criminal inquiry (quMstio) 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.* 
 
 The unlimited imperium of the consul in the field {miliUae), 
 which was asserted when he had crossed the pomerium^ and 
 required the sanction of the lex curiata, was, in the early Eepublic 
 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.^ But this device was neces- 
 sary only when military considerations dictated that all the 
 
 ' Cicero furnishes an instance for the year 54 B.C., ad All. iv. 15, 5 "Eeatini 
 me ad sua Ti/iTr] duxerunt, ut agerem causam contra Interamnates apud con- 
 sulem et decern legatoa, quod lacus Velinus ... in Nar defluit." 
 
 2 p. 167. 
 
 ' Selection of a consul, Cic. de Fin. ii. 16, 54, in 141 B.C., "deoreta a senatu 
 est consul! quaestio"; of a praetor, Liv. xlii. 21, in 172 B.C., "C. Llcinius 
 praetor oonsuluit senatum quem quaerere ea rogatione vellet. Patres ipsum eum 
 quaerere jusserunt." 
 
 * Cio. de Rep. iii. 18, 28 (of the year 136 B.o.) " Consul ego quaesivi, cum 
 V03 mihi essetis in consilio, de Numantino foedere." Mommseu [Staatsr. ii. p. 
 112 n. 3) thinks that the conailwm was formed by the Fetiales (of. Cic. de Leg. 
 ii. 9, 21). 
 
 " For the question whether the jpomeriMm or the first milestone was the limit 
 of the full imperium see p. 79. 
 
 " For the rotation of the wmpenum before Cannae (216 B.C.) see Polyb. iii. 
 110, Liv. xxii. 41. 
 
200 ROMAN PUBLIC LIFE chap. 
 
 Eoman 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 (p-ovincia).^ 
 In a defensive war, such as that against Hannibal, Italy would 
 naturally fall into two consular provinces ; ^ but the practice 
 became even more essential when the Eoman 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.^ 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.* 
 
 The consuls settled the distribution of provinciae by agreement 
 or by lot,^ 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.^ 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 promncias) had, by the close of 
 the Hannibalic war, become the undisputed prerogative of the 
 
 ^ Liv. xxlL 27 " Ita (Fatius, after the appointment of Minucius as his colleague 
 in 217 B.o. ) obtlnuit uti legiones, sicut consulibus mos esset, inter se dividerent." 
 
 ^ ih. XXX. 1 (203 B.O. ) " oensuemnt patres, ut oonsules inter se compararent 
 sortirentnrve, uter Bruttios adversus Hannibalem, uter Etruriam ao Lignres 
 provinciam haheret." 
 
 ' Italy and Macedonia (ib. xxxii. 8, xlil. 31, xliii. 12), Italy and Greece 
 (xxxvii. 1). 
 
 * Italia and some foreign country are still consular provinaiae in 112 and 111 
 B.o. (Sail. 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. 
 
 ^ Liv. XXX. 1 "ut oonsules inter se oompafarent sortirentnrve. '' Of. ib. 
 xxxii. 8, xxxvii. 1, and the other passages cited in note 3. 
 
 ' ib. viii. 16 ; of. Cic. pro Domo 9, 24. In 205 B.C. Soipio was given Sicilia 
 extra sortem because his colleague was ponii/ex maximus (Liv. xxviii. 38). 
 
IV THE INDIVIDUAL MAGISTRACIES 201 
 
 Senate,^ 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.^ 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 oflSce 
 at Eome had expired. 
 
 We do not know the exact tenor of the lex Cornelia de pro- 
 vinciis 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 '' ; ^ but he devised some means 
 of separating home from foreign commands, which, by crystal- 
 lising the established custom, restricted the consuls and praetors 
 to the civil government of Eome 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^ 
 were thenceforth lost, and the consul at the close of the Ee- 
 public 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 con- 
 stitutional forms, was the chief interpreter of the Senate's will ; 
 while one who, like Gaesar 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 Eepublic,^ and the 
 competition was not wholly directed to secure the military 
 imperium which lay beyond it. The civil office might still make 
 
 ^ Liv. xxi. 17 (218 B.o.) "nominatae jam antea oonsulibus provlnciae erant ; 
 turn sortiri jussi." Cf. ib. zxviii. 38. 
 
 ' SaU. Jug. 27 ; Cio. pro Drnno 9, 24. 
 
 ' CSc. ad Att. viii. 15, 3 "oonsules qnibus mofe majorum concessum est vel 
 omnes adire provinciasl" LuouUus went as consul to Asia in 74 B.O. 
 
 * p. 153. 
 
 ' Tliat staunch conservative "Q. Catulu.s 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 improU Catulns meant 
 " radicals." 
 
202 ROMAN PUBLIC LIFE chap. 
 
 a capable man, supported by a powerful following, the guide of 
 the destinies of the state.^ 
 
 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.^ 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 dif- 
 ficult Spanish provinces biennial ; but this law was soon sus- 
 pended, and six praetors continued to be annually elected until 
 the time of Sulla (81 B.C.).^ It is true that between 198 and 
 81 many provinces had been added to the Roman Empire; but 
 the princij)le 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 conse- 
 quently 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 
 ofiice, 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 imperivm. They were then assigned 
 some special office, some definite provincia; but the exercise of 
 
 ^ The consul was the "legitimus tutor " of tlie state (Cic. post Red. ad Quir. 
 6, 11) and " quasi parens bonus a.it tutor fidelis " {de Or. iii. 1, 3). 
 
 2 p. 120. 
 
 ' Two praetors for Sicily and Sardinia (Liv. £p. xx.), two more for the 
 Spanish provinces (Li V. xxxii. 27). Fot fhe lex Baebia see Liv. xl. ii. For the 
 restoration of the number six see Veil. ii. 16. Pomponius says that four were 
 added by Sulla {Dig. 1, 2, 2, 32), but eight are found in 47 B.O. {Dio Cass, 
 xlii. 51). 
 
IV THE INDIVIDUAL MAGISTRACIES 203 
 
 this did not destroy their capacity for general action. For com- 
 mand in war, as well as for the exercise of at least civil juris- 
 diction — both attributes of the full impervwm^— they required a lex 
 cwiata. 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 hopie, he employed, or was 
 allowed, only two.^ The praetor's specific title was derived from 
 his province ; of the two original home praetors one was known 
 as the p-aetor qui inter cives jus dicit, or, in the colloquial phrase 
 which became titular, as praetor wrbanus ; the other as the 
 praetor qui inter peregrines jus dicit, known finally as the praetor 
 peregrinus. But both the home praetors were often spoken of as 
 having urbanaeprovinciae and exercising urhana jurisdictio.^ Their 
 rank was higher than that of their colleagues — hence their 
 names were, like those of the consuls, used for dating ^ — and of 
 the two the praetor urbanus was regarded as holding the more 
 distinguished position.* 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 Eome during his year of 
 office ^ made him miore 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 Eome, 
 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.* Such an injunction by the Senate was a 
 
 '■ The praetor had a right to six lictors l^arpaTiiyhi i^air^esvs, App. Syr. 15 ; 
 cf. Polyb. iii. 40) and appears with the full number in the province (Cic. in Vmr. v. 
 54, 142 " sex lictores circumsistunt ") ; but, in the exercise of his jurisdiction 
 within the city, he employed, or was allowed, only two (Oensorinus de Die Nat. 
 24, 3 ; cf. Cic. de Leg. Agr. ii. 34, 93). 
 
 ^ Praetor wrbanus {S. O. de Baech. U. 5, 8, 17, 21), praetor qui inter cives jus 
 dicet {lex Agraria of 111 B.O.), promneia or sors v/rhana (Liv. xxiv. 9, xxv. 3, 
 zzvii. 7, xxviii. 10, xxix. 13), jurisdictio uriana (ib. xxxii. 28, xlii. 31) — 
 praetor qui inter peregrines jus dicet {lex Acil. 11. 12 and 89 ; lex Jul. Munic. 
 11. 8 and 12), jurisdictio inter peregrimos (LiT. xl. 1), promneia peiregrina (ib. 
 xxvii. 7, xxviii. 10). Both these praetors, as distinct from those in foreign 
 command, are said to have urtanae promnciae (ib. xliii. 11), promneia urbana 
 (xxxii. \),jvnsdMtio mbana (xxv. 41, xxx. 1). 
 
 8 p. 197. 
 
 " App. B. C. ii. 112. 
 
 6 Cic. PhU. ii. 13, 31. 8 p. 174. 
 
204 ROMAN PUBLIC LIFE chap. 
 
 constitutional mode of coercing the consuls into doing their 
 duty. In this way the praetors might summon the Senate,^ 
 propose a rogatio,^ hold the levy,^ and exercise criminal jurisdiction 
 delegated by the people.* Usually, however, such duties were 
 performed by them only in the absence of the consuls, and the 
 praetor urbanus generally took the lead,^ although the summons 
 of the Senate by both home praetors, and even by a provincial 
 praetor, was not unknown.^ 
 
 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.^ 
 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,^ or the praetor peregrinus 
 might be given an Italian command, such as Cisalpine Gaul.^ 
 In this way a praetor could be spared for the command of the 
 fleet or for Gaul (at Ariminum). This disturbance of the sortitio 
 and the appointment of a praetor extra ordinem ^^ 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* civU. jurisdiction, whether of the urban or provincial 
 praetors, still adhered to the ancient form by which the ruling in 
 law {injure) was the duty of the magistrate, and the judgment 
 on the question of fact [in judicio) was the function of a single 
 
 ' Liv. xlii. 21. 2 ib. xxvii. 5. ' ib. xliii. 14. 
 
 * ib. xlii. 21 ; see p. 199. 
 
 ^ e.g. iu the dUectus (ib. xxv. 22, xxxix. 20, xlii. 35). 
 
 ° After Cannae the two urban praetors summoned the Senate (ib. xxii. 55). 
 In 197 B.C., on the news of troubles iu Spain, "decreverunt patres ut, oomitiis 
 praetorum perfectis, oui praetori provincia Hispania obvenisset, is primo quoque 
 tempore de bello Hispaniae ad senatura referret" (ib. xxxiii. 21). 
 
 ' The provinoiae 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). 
 
 ^ ib. xxv. 3 (212 B.C.) "Et praetores provinoias sortiti sunt; P. Cornelius 
 Sulla urbanam et peregrinam, quae duorum ante sors fuerat." Cf. ib. xxxvii. 
 50 (189 B.O.). 
 
 ' ib. xxix. 13 (204 B.o.) "M. Maroio urbana, L. Soribonib Liboni peregrina 
 et eidem Gallia." 
 
 1° ib. xxiv. 9 (215 B.o.) "oomitiis praetorum perfectis, senatus oonsultum 
 factum ut Q. Fulvio extra ordinem urbana provincia esset." 
 
IV THE INDIVIDUAL MAGISTRACIES 205 
 
 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 Admtia of uncertain date the 
 simpler formulary procedure almost wholly replaced the more 
 complicated provisions of the legis adiones} The formula was 
 a conditioned acquittal or condemnation ; the praetor said to the 
 judex, " If it appears that a debt is duB, 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 ofiice, 
 what their rulings would be in any given case. The edict was 
 the "living voice of the civil law";^ 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 Eoman 
 youth.^ 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." * 
 
 ' Gaius Inst, iv. 30 "per legem Aebutiam et duas Julias sublatae sunt istae 
 legis aotiones ; effectumque est ut per oonoepta verba, id est, per formulas, 
 litigaremus " ; Gell. xvi. 10, 8 "cum . . . omuis . . . ilia duodecim tabularum 
 antiquitas nisi in legis aotionibus centumviralium causarum lege Aebutia lata 
 oonsopita sit." 
 
 ^ Marcian in Dig. 1, 1, 8 " nam et ipsum jus honorarium viva vox est juris 
 civil is." 
 
 ^ Clc. de Leg. i. 5, 17 " Non ergo » praetoris edicto, ut plerique nunc, neque 
 a XII Tabulis, ut superiores . . . hauriendam juris disciplinam putas." Cf. de 
 Leg. ii. 23, 59 "disoebamus enim pueri XII, ut carmen necessariuni : quas jam 
 nemo discit." 
 
 * Papinian in Dig. 1, 1, 7, 1 "jus praetorium est, quod praetores intro- 
 duxerunt adjuvandi v^ .supplendi vel corrigendi juris civilis gratia propter 
 utilitatem publicam." 
 
206 ROMAN PUBLIC LIFE chap. 
 
 It was, therefore, not the jus civile of Rome, but the valid modifi- 
 cations of this expressed in what was currently known as 
 magistrates' law {jus honorarium). The ciyil law was of course 
 presumed as the background of these documents ; it found ex- 
 pression 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 daho). 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 there- 
 fore merely the recognition of practice which "had already crept 
 into use,^ 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) : ^ a 
 limitation that would have produced a most unsatisfactory 
 uncertainty as to its validity for future litigants and subse- 
 quent 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 juris- 
 diction. To use technical language, the edict was perpetuum et 
 tralaticium.^ 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* even before the passing of the lex Cornelia of 
 67 B.C., which obliged a magistrate to adhere to the rulings of 
 
 ' 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." 
 
 2 Cic. in Verr. i. i2, 109 " qui plurimum tribuunt edicto, praetoris ediotum 
 legem annuam diount esse." 
 
 ^ Asoon. in Oornel. p. 58 ; Cic. in Verr. i. 44, 114. Perpetuum means 
 "continuous," tralatidum "transmitted." > 
 
 ■■ Cic. in Verr. i. 46, 119. Cf. p. 178. 
 
IV THE INDIVIDUAL MAGISTRACIES 207 
 
 his own edict.i 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 Eoman 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 Eoman 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 gentivm) 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 (edidum 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,^ increased by Sulla to meet the growing number of 
 these courts. For criminal jurisdiction six praetors were avail- 
 able, whose provinces were possibly determined by the Senate 
 and were certainly distributed amongst the designated magistrates 
 
 ' Ascon. in Cornel, p. 58 " Aliam deinde legem Cornelius, . . , tulit, ut 
 praetores ex ediotis suis perpetuis jus dioerent, quae res . . . gratiam ambitiosia 
 praetoribus, qui varie jus dicere assueverant, sustulit." Cf. Dio Cass, xxxvi. 23. 
 
 ■•2 p. 202. 
 
208 ROMAN PUBLIC LIFE chap. 
 
 by the use of the lot.^ Although the general principle of distri- 
 bution made each praetor preside over the jurisdiction ordained 
 by a single law which created a quaestio, yet the spheres of juris- 
 diction were by no means fixed. Groups of quaestiones or of 
 their branches ^ 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.^ 
 
 The AedUes 
 
 The junction of the plebeian and curule aedUeships into a 
 single office is testified by their being spoken of together where 
 their duties are mentioned or prescribed by law,* 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 ; * 
 the former were elected by the Plebs, the latter by the comiiia 
 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; ® 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 
 
 ' Cio. in Verr. Act. 1. 8, 21 ; pro Mur. 20, 42. The fullest account that we 
 possess of the distribution of such functions amongst the memhers of the college 
 refers to the year 66 B.O. (ib. pro Cluent. 53, 147 ; Ascon. in Oomd. p. 59). 
 
 ^ e.g. the lex Cornelia de sicariis et venefids took cognisance of murder, 
 poisoning, and arson, that defalsis of the forgery of documents and of wills as well 
 as of coining. 
 
 ^ After the soriitio 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. 0. ) he had been summoned to a command in northern Italy. 
 
 * Cio. de Leg. iii, 3, 7 " Suntoque aediles, curatores urbis, annonae ludorumque 
 soUemnium : oUisque ad honoris amplioris gradum is primus ascensus esto." Of. 
 lex Jul. Munic. 1. 24. ' p. 122. 
 
 ' Cio. in Verr. v. 14, 36. 
 
IV THE INDIVIDUAL MAGISTRACIES 209 
 
 sacrosanditas which they shared with the tribunes — vanished as 
 a consequence of their employment as officials of the state. ■'^ 
 
 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.^ 
 
 (1) Their care of the state archives — originally possessed to 
 a limited extent by the plebeian aediles * — was still continued, 
 and they divided in some unknown way with the quaestors the 
 custody of senatus consiolta in the aerarivm Saturni.^ 
 
 (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.^ 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.* They controlled the water-supply and pro- 
 hibited private persons, with the connivance of the water- 
 inspectors (aquarii), taking more than their fair share from the 
 public conduits.^ 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 aedivm sacrarum 
 proewatio^ 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." Their police duties are 
 shown by the edicts which they issued for keeping order at the 
 
 ' 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. 
 
 2 Cio. de Leg. iii. 8, 7, cited p. 208. 
 
 » p. 98. * Dio Cass. liv. 36. 
 
 » Lex Jul. Munic. U. 20, 32-45, 29, 46. 
 
 " Suet. Yesp. 5 ; leac Jul. Munic. 1. 68. 
 
 ' Cio. ad Fam. viii. 6, 4 (Caelius Rufus, cunile aodile in 50 B.C., says) "nisi 
 ego cum tabemariis et aquariis pugnarem, vetemus civitatera ocoupasset." 
 
 ' ib. Ml Veirr, v. 14, 36 " mihi sacrarum aedium procurationem, mihi totam 
 urbem tuendam esse oommissam." 
 
 " 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 Hmr. Reap. 13, 27. 
 
 P 
 
210 ROMAN PUBLIC LIFE chap. 
 
 public gameSji and by their control of private places of utility 
 or amusement to which the public were admitted, such as baths, 
 taverns, and the like.^ 
 
 The aediles possessed the usual means of coercitio for enforcing 
 their decrees ; they seized pledges {pignord) and imposed fines 
 (muUae).^ When the latter surpassed the limit of the m/idta 
 swprema, the case went on appeal to the people ; the plebeian 
 aediles defended their fines before the concUmm 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 recwperatoresA 
 
 (3) Their care of the market is typified by Cicero in the 
 most important of its subdivisions — the care of the corn-supply 
 (cwra annonae).^ 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 ; ^ and 
 it was they who as a rule presided over the distributions 
 ordained by the later kges frumentariae.'' The supply of corn to 
 an army in Italy from the city magazines was also one of their 
 cares.* Other duties springing from their control of the market 
 were the enforcement of the sumptuary laws,^ the inspection of 
 
 ' Maorob. Sat. ii. 6 " lapidatus a populo Vatinius cum gladiatorium munus 
 ederet, obtinuerat ut aediles edicerent ne quis in arenam nisi pomum misisse vellet." 
 
 " Seneca Ep. 86, 10 "hoc qnoque nobilissimi aediles fungebantur officio 
 intrandi ea loca quae populum receptabant exigendique muuditias et utilem ao 
 salubrem temperaturam." Cf. Suet. Olaud. 38 ; Tac. Ann. ii. 85. 
 
 ' Tac. Ann. xiii. 28 (56 a.d.) " cohibita artius et aedilium potestas statutumque 
 quantum ourules, quantum plebei pignoris caperent vel poenae inrogarent." 
 
 ^ Dig. 21, 1, 40-42 (from the edict of the curule aediles) "ue quis canem, 
 ■yerrem vel minorem aprum, lupum, ursum, pantheram, leouem . . . qua vulgo 
 iter flet, ita habuisse velit, ut cuiquam nocere damnumve dare possit." 
 
 " p. 208 n. 4. 
 • ^ Liv. xxiii. 41 ; xxxi. 50 ; xxxiii. 42. Cic. de Off. ii. 17, 58 "ne M. quidem 
 Sejo vitio datum est, quod in caritate asse medium populo dedit : magna enim se 
 et inveterata invidia, neo turpi jactura, quaudo erat aedilis, neo maxima liberavit." 
 
 ' Cic. ad Fam. viii. 6, 5 (from Caelius Eufus in 60 B.C.) " alimentariam (legem), 
 qua jubet aediles metiri, jactavit (Curio)." 
 
 * Liv. xxvi. 10 (211 B.C., when Hannibal was at the gates of Rome) " Fulvius 
 Flaccus . . . inter Esquilinam Collinamque portam posuit caslra. Aediles plebis 
 commeatum eo comportarunt." 
 
 ' For this there is no direct evidence, but the aediles complain about the 
 transgression of sumptuary laws in Tao, Ann. iii. 52-55. 
 
IV THE INDIVIDUAL MAGISTRACIES 211 
 
 weights and measures with the maintenance of their normal 
 standard, 1 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 jvdex in such cases.^ 
 
 (4) The cwa 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,^ the oldest festival, the ludi 
 Romani, being in the hands of the curule,* the ludi plebeii in those 
 of the plebeian aediles.^ 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,*" the others seem to have been given in- 
 differently 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, there- 
 fore, do not spring from the ordinary coercitio. This criminal 
 jurisdiction was, like the civil jurisdictioii 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 Eome. 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 
 
 1 Momms. Staatar. ii. p. 499. He takes "cum tabernariia pngnarem" (Cic. 
 ad Fam. viii. 6, 4, cited p. 209) in this sense. 
 
 •^ Dig. 21, 1, 1 ; Gell. iv. 2. 
 
 ' Cio. Ml Verr. v. 14, 36. 
 
 ' Lit. i. 47 ; xxvii. 6. They were shared by both colleagues (Suet. Oaes. 10). 
 
 ° Liv. xxiii. 30. 
 
 ° Dio Cass, xliii. 48 (44 B.O.). Here by a decree of the Senate the Megalesia 
 are celebrated by the plebeian aediles. 
 
212 ROMAN PUBLIC LIFE chap. 
 
 met by a fine, such as a mild case of majestas ^ or the bribery of 
 a bench of judices; ^ and judgment on a breach of the peace (vis) 
 was in harmony ■with their police duties.* 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,* usury,^ illegal 
 speculations in corn,® and the offence of exceeding the amount of 
 domain-land which the laws permitted an individual to possess.^ 
 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.* 
 
 The Quaestors 
 
 We have already spoken of the criminal investigators (quaestores 
 parricidii), whom tradition attributes to the monarchy,^ and of 
 the more certain assistants of the consuls for criminal jurisdiction 
 and finance (quaestores parricidii et aerarii), who are assigned to 
 the early Eepublic^" We have seen that, first nominated by 
 the consuls, they were soon elected by the tribes," 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. ^^ 
 About the year 267 B.C. four more were added for the purposes 
 of Italian administration, and no further change is recorded 
 
 ^ When during the first Punic war Clodia uttered her ill-omened wish ahout 
 the Roman people, "C. Fundanius et Tl. Sempronius, aediles plebei, multam 
 dixerunt ei aeris gravis viginti quinque milia " (Gell. i. 6). Cf. Suet. Tib. 2. 
 
 " Cicero promises, as aedile, to prosecute those " qui aut deponere aut aocipere 
 aut recipere aut pollicere aut sequestres aut interpretes corrumpendi judicii soleut 
 ease " (in Verr. Act. 1. 12, 36). 
 
 ^ An instance is furnished hy Clodius' prosecution of Milo in 56 B.C. (Cic. pro 
 Seat. 44, 95 ; ad Q. fr. 2, 3). A prosecution hy the aedile in defence of his own 
 dignity or person is an outcome of his coercitio. An instance is famished by 
 Gell. iv. 14. 
 
 ^ Liv. viii. 22 ; xxv. 2. 
 
 ** ib. XXXV. 41. 
 
 " ib. xxxviii. 35. Here the offence was anmna compressa by the corn-dealers. 
 
 ' Condemnation "qiiiaplus, quam quod lege finitum erat, agi-i possidercnt" 
 (ib. X. 13). Condemnation oS pecuarii (x. 47). Cf. xxxiii. 42. 
 
 8 ib. xxxviii. 35 ; x. 23. 
 
 » p. 63. " p. 80. " p. 81. '» p. 117. 
 
IV THE INDIVIDUAL MAGISTRACIES 213 
 
 until Sulla raised their number to twenty, '^ although some inter- 
 mediate 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.^ The 
 rank of the quaestor was the lowest in the cursus Jionorum,* 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,* 
 and the individuals were then assigned to their several depart- 
 ments by lot ; although, probably always by a special grace of 
 the Senate, there are instances of commanders selecting their 
 own assistants.* 
 
 The departments may be grouped imder 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 dcariis had been established.* 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,^ the guardianship of the standards 
 that were kept there,* and, above all, of the great mass of state 
 papers and archives which it held. These contained laws ® and 
 
 ^ Tao. Arm. xi. 22 " post lege gnllae vigintl oreati supplendo senatui." 
 
 ^ C. Gracchus served as quaestor for three years ; one was spent in Rome and 
 
 two in Sardinia (Plut. C. Gracch. 2). 
 
 ' Cic. in Verr. Act. i. 4, 11 "quaestura primus gradus honoris." 
 
 ^ ib. i. 13, 34 " quaestor ex senatus consulto provinciam sortitus es." 
 
 ° Liv. XXX. 33 "Laelium, cujus . . . eo anno quaestoris extra sortem ex 
 
 senatusconsulto opera utebatur" (Soipix) in 202 B.C.); Cio. ad Att. vi. 6, 4 
 
 "Pompelus . . . Q. Cassium sine sorte delegit, Caesar Antonium ; ego sorto 
 
 datum offenderem ? " 
 
 " The first trace of a quaesiio de sicariis is in 142 B.a. (Cio. de Fin. ii. 16, 54). 
 
 ' Polyb. xxiv. 9a, 1. 
 
 * Liv. iii." 69 "signa ... a quaestoribus ex aerario prompta delataque in 
 
 eampum." 
 
 » Cio. de Leg. iii. 20, 46. 
 
214 ROMAN PUBLIC LIFE chap. 
 
 decrees of the Senate/ the list of judices,^ the public accounts 
 {tabulae puhlkae), which included the statements of moneys voted 
 to magistrates ^ and the reckoning of provincial governors with 
 the aerarmm in respect to direct tribute paid them by the pro- 
 vincials. Connected with this financial custody were the quaestors' 
 duties of collection. To them the publkani usually paid the sums 
 which they had guaranteed for the leasing of the public revenues.* 
 The collection of fines imposed by the judicia populi, and exacted 
 by the quaestiones for peculation and extortion, was also in their 
 hands.^ 
 
 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,^ and of that portion of 
 conquered land which was brought immediately under the 
 hammer (ager quaestmius).'^ This threefold function of guardian- 
 ship, 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.^ 
 
 (ii.) The general assistance which the quaestors were meant 
 to render to the consuls was extended, as we saw,* 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, 
 
 ' 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). 
 
 2 Cio. Pha. V. 5, 15. 
 
 ' ib. in Verr. iii. 79, 183 "eorum homiuum (the scribae of the quaestors) 
 fidei tabulae publioae perioulaque magistratuum committuutur. " 
 
 ^ The security was given to the aerarimn ("subsignare apud aerarium " 
 Cic. pro Flaeco 32, 80) ; hence the money was probably paid into that treasury. 
 
 ^ Liv. xxxviii. 58 "Hostilius et Furius damnati (tor peaulatus in 187 B.C.) 
 praedes eodem die quaestoribus urbanis dederunt." In the lex AcU, JRep. (1. 67) 
 it is said of the man convicted " q(uaestori) praedes facito det.' 
 
 « Plant. Oapt. i. 2, 111 ; ii. 3, 453. 
 
 ' Hygiu. de Gond. Agr. p. 115. 
 
 ^ Auct. ad Herenn. i. 12, 21 "Cum L. Saturninus legem frumeutariam de 
 semissibus et trientibus laturus esset, Q. Caepio, qui per id temporis quaestor 
 urbanus erat, docuit senatum aerarium pati non posse tantam largitionem." 
 
 " p. 117. 
 
IV THE INDIVIDUAL MAGISTRACIES 215 
 
 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,^ for the connexion 
 between the superior and inferior was regarded as being of 
 almost as personal a character as that between father and son.^ 
 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,^ and were constantly employed on 
 judicial and military business. 
 
 (iii.) The quaestors of Italy were probably identical with 
 those of the fleet (dassiei), and were a result of the organisation 
 of Italy (267 B.C.) which followed the war with Pyrrhus. For 
 the purposes of the Pyrrhine war twelve quaestors were created, 
 whose number, when they were given permanent stations, was 
 reduced to four.* 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 Eome.* The 
 second appears to have been the woods and forests (calles) of 
 Italy.® The third was in Cispadane Gaul,' perhaps at Eavenna 
 
 ' p. 213. If the quaestor was lacking through death or any other cause, the 
 governor appointed one of his legati us pro quaestors (Cio. in Verr. i. 36, 90). 
 
 * Cio. pro Eianc. 11, 28 " morem iUum raajorum qui praesoribit in parentum 
 loco quaestoribus suis praetores esse oportere." 
 
 ° ib. in Verr. i. 15, 40 "Tu, cum quaestor ad exercitum missus sis, custos 
 non solum pecuniae sed etiam consulis, particeps omnium rerum consilioruraque 
 fueris." 
 
 * Lydus de Mag. i. 27 Kpiv&vTcov 'Pwjua/wi' iroXefietv rols ffviiixax^aafft. IL^ppcp 
 T^ 'H7retpt6r7/ KareffKevdcrdTj (rrd'Kos Kal Trpoe^XiJ^T/cray ol Ka\o6fievot KkatrffiKol 
 {plovel favdpxat) r^ dpcdfju^ SvoKaideKa KvaiffTwpes. Lydus may be right about 
 the original number, although it has been sometimes thought a confused remini- 
 scence of the raising of the number from four to eight. 
 
 '^ Veil. ii. 94; cf. Cio. pro Mur. 8, 18 "tu illam (provinciam habuisti), oui, 
 cum quaestores sortiuntur, etiam acclamari solet, Ostiensem non tam gratiosam 
 et illustrem quam negotiosam et raolestam." 
 
 ' Tao. 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 (Slaatsr. ii. p. 671), following Lipsius, would read Cales, the oldest 
 Latiu colony in Campania, and therefore supposes that this quaestor's functions 
 extended over the whole of South Italy. The woods and forests was the pro- 
 vincia 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 "). 
 
 ' Plut. Sert. 4. 
 
216 ROMAN PUBLIC LIFE chap. 
 
 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 pro- 
 vincial post. The other three survived the Eepublic as spheres 
 of Italian administration.^ The functions of these quaestors 
 were chiefly the levying of contingents from the allies in ships 
 and men,2 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 p-ovincia 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.* 
 
 The Censors 
 
 We have already described the institution of the censorship 
 in 443 B C.,* 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.^ 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 ; ^ but it is not until the year 
 131 B.C. that we find two plebeian censors.^ 
 
 The election to this office, like that to the other higher 
 magistracies, took place in the comitia centwryita^ under pre- 
 sidency of the consul. The election was then ratified, not, as in 
 the case of other magistrates, by a lex cwriata, but by a lex 
 
 1 The last to remain were the Gallic and Ostian, whicli, as Italian provindae, 
 were abolished by the Emperor Claudius in 44 a.d. (Suet. Claud. 24). 
 
 ^ So Sertorius, as Gallic quaestor in the Marsic war, was instructed (rrpaTtiiras 
 . , . KaraX^yeij' Kal 6irKa iroiuadai (Plut. Sert. 4). 
 
 ^ 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. 
 
 ^ Liv. iv. 8 ; see p. 115. 
 
 ^ ib. vii. 22 (C. Marcius Eutilus) ; cf. x. 8. 
 
 ^ ib. viii. 12 "ut alter utique ex plebe, cum eo [ventum sit] ut utrumque 
 plebeium fieri lioeret, censor crearetur." Madvig and Mommsen would omit 
 " ventum sit," and so make the Publilian law open both places in the college to 
 Plebeians. 
 
 ' ib. Ep. lix. "Q. Pompeius Q. Metellas tunc primum utrique ex plebe facti 
 oensores lustrum condiderunt." 
 
 * Messala ap. Gell. xiii. 15, 4. 
 
IV THE INDIVIDUAL MAGISTRACIES 217 
 
 centwiata} a form of statutory approval which marks the censors 
 as peculiarly the ofScials concerned with the organisation of the 
 exercitus. 
 
 In rank the censor occupies an anomalous position. Although 
 lacking the imperiwm and the right of summoning people and 
 Senate, he is reckoned amongst the majores magistratus, he has 
 the " highest auspicia," ^ he sits in the curule chair, wears the 
 purple-striped toga, and (an honour accorded to no other magis- 
 trate) is buried in the full purple of the king.^ 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 ofiice are very important in deter- 
 mining its character. The first gave it the necessary authority, 
 the others created a healthful limitation of its powers. 
 
 (1) The censorship was an irresponsible ofiice.* 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 censaria 
 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.,^ and, although often challenged by the tribunes, was 
 maintained until the close of the Republic. One of the efiects of 
 the Glodian plebiscitum of 58 B.C., which limited the discretionary 
 power of the censors in the regimen morvm^ 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 
 
 ' Cic. d& Leg. Agr. iL 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 judioabatur. " 
 
 ^ Messala ap. Gell. ziii. 15. 
 
 ' Polybius (vi. 63) 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 life-time, 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. 
 
 * dpx'f) avvn-ii$vvo$ (Dionys. xix. 16). 
 
 » Liv. xxix. 37 ; Val. Max. vii. 2, 6. 
 
 ' Ascon. in Pison. p. 9. 
 
218 ROMAN PUBLIC LIFE chap. 
 
 was clearly invalid against the particular potestas exercised at the 
 census,^ although the obnuntiatio could be employed against the 
 summons of the people to the census and the lustrum, as against 
 any other contio.^ 
 
 (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. ^ 
 
 (3) Re-election to the censorship was forbidden, for a 
 continuous moral control exercised by the same men would have 
 been intolerable.* 
 
 (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.^ 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 ; ^ and, whether from grounds of convenience or 
 
 ^ Hence the helplessness of the tribune against censorial animadversion. Cf. 
 Liv. xliv. 16 "multis equi adempti, inter quos P. Eutilio, qui tr. pi. eos 
 violenter accusarat : tribu quoque is motus et aerarius factus." 
 
 ^ Cio. ad Alt. iv. 9, 1. 
 
 ^ For the later mode of regarding this limitation see Liv. iv. 24 " grave esse 
 iiadem per tot annos magna parte vitae obnoxios vivere." But, if the tenure was 
 fixed by the lex Aemilia (of the dictator Mamerous Aemilius, 434 B.C., Liv. I.e.), 
 it originated before the censorship had become a dangerous power. 
 
 * Liv. zxiii. 23 "neo censoriam vim uni permissam et eidem iterum." The 
 prohibition is attributed to a law of Maroius Rutilus Censoriuus, 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. 620. 
 
 ^ It is Cicero's business in \hepro Cluentio (43, 122) to represent this diverg- 
 ence of view as a weakness in the censorship; cf. Liv. xlii. 10 (173 B.C.) 
 "ooncors et e re publica censura fuit . . neque ab altero notatum alter probavit." 
 But it was a necessary condition of the continuance of the ofBoe in a free .state. 
 
 •i Liv. ix. 34 ' ' cum ita comparatum a majoribus sit ut comitiis ceusoriis nisi 
 duo coufeceriut legitima suffragia, non renuutiato altero comitia differantur." 
 
IV THE INDIVIDUAL MAGISTKACIES 219 
 
 from a religious scruple, it was enacted that, if one post was 
 vacated by abdication or death, the holder of the other should 
 resign.! 
 
 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 indi- 
 viduals 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 morvm ; 
 (iv.) the purification (lustnim), 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 morvm. 
 
 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 sena- 
 torial supervision.^ 
 
 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 
 selectijig their own consilium,^ and later still (216 B.C.) a dictator 
 could be chosen for the purpose of filling up gaps in the order.* 
 A lex Ovinia, a plebiscitvm of uncertain date, may have made the 
 
 ' Tradition attributed the origin of this rule to a religious scruple, "quia eo 
 lustro (in Tvhioh a suffectus was appointed) Eoma est oapta : nee deinde unquam 
 in demortui locum censor auffloitur" (Liv. v. 31). 
 
 ^ 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 oensento : urbis, tecta, templa, vias, aquas, 
 aerarium, vectigalia tueuto : populique partes in tribus discribunto : exin 
 pecunias, aevitates, ordines partiunto : equitum peditnmque prolem discribunto : 
 oaelibes esse prohibento : mores populi regunto : probrum in senatu ne 
 relinquunto. " 
 
 8 Liv. ix. 30. ■■ ib. xxiii. 22 ; see p. 193. 
 
220 EOMAN PUBLIC LIFE ohap, 
 
 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,^ 
 at the most that the whole list of magistrates (including the 
 plebeian aediles and the quaestors) should be scrutinised before 
 censorian nominees were appointed.^ 
 
 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,^ 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. 
 
 Eejection took the form of affixing marks (notae) against 
 names in the register ; these names were omitted in the revised 
 list. Then took place the subleciio of new names, and here the 
 censure was pronounced by omitting those who had a claim to 
 a seat in the house.* The veto, which operated in its constantly 
 negative manner, which enabled one censor to retain a name 
 omitted by the other,^ 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 {sub- 
 
 ' 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 ple^s and the guaestorii, lastly men of distinction 
 who had held no magistracy (Liv. xxiii. 23). 
 
 ' Pestus p. 246 "Ovinia tribunioia intervenit, qua sanctum est ut censores 
 ex omni ordine optimum quemque jurati [Ood. curiati, Mmnmsen ouriatim) in 
 sonatum legerent." If "ex omni ordine" means "from every grade of the 
 magistracy," the second interpretation is necessary. 
 
 ^ 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. 
 
 * The phrases for rejection and omission are movere, yicere, praeterire. The 
 last applies both to existing and to expectant senators, and has reference to the 
 public reading of the list {redtatio) (Cic. pro Domo 32, 84 " praeteriit in recitaudo 
 senatu "). 
 
 ' Liv. xli. 57 "retinuit quosdam Lepidus a coUega praeteritoa " ; cf. Clo. 
 pro Gluent. 43, 122. 
 
IV THE INDIVIDUAL MAGISTRACIES 221 
 
 scriptio censm'ia),^ 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 Jost 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.'^ 
 
 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 cap& censi, with their 
 votes in the tribes and their taxable capital, might be represented 
 only by the curatores tribuwm,^ although the censor could summon 
 any member of the burgess community whom he pleased.* 
 
 The financial examination at each census, which had as its 
 object the rating for the tributwm, 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 pub- 
 lished ; ^ 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,^ or expressed their disapprobation 
 
 ' For a type ot suiscriptio see Ascon. in or. in Tog. Cand. p. 84 "Antoniuin 
 Gellius et Lentiilua censores . . senatu moverunt causasque subsoripserunt, quod 
 socios diripuerit, quod judicium reousarit, quod propter aeris alieni magaitudinem 
 praedla manciparit bonaque sua in potestate non habeat. " 
 
 2 Usually the praetorship or quaestorsbip. Momms. Staatsr. i. p. 521 n. 3. 
 
 ' See the formula of summons in Varro (L.L. vi. 86), "omnes Quirites pedites 
 armatos, privatosque curatores omnium tribmim, si quis pro se sive pro altero 
 rationem dari volet, vooato in lioium buc ad me," 
 
 * Mommsen believes in a special summons to the capite censi (Staatsr. ii. p. 366). 
 
 " Liv. xliii. 14. 
 
 ' Cato in 184 assessed articles of luxury at ten times their value (Liv. xxxix. 
 44 ; Pint. Gat. Maj. 18). 
 
222 EOMAN PUBLIC LIFE chap. 
 
 of social or moral offences by an arbitrary and excessive rating 
 of the goods of the offenders.^ 
 
 All the property thus assessed must be the object of quiri- 
 tarian ownership. Originally it had been but the land and the 
 animals associated with it {res mancipi),^ 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.^ 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.* 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 land-holders,^ the 
 possessor of an allotment was naturally registered in the tribus 
 
 ' Liv. iv. 2-1 " Mamercum . . . tribu raoveraiit octuplicatoque censu aerarhim 
 fecerunt " ; Val. Max. ii. 9, 1 " Camillua et Postumius censores aera poenae 
 nomine eos, qui ad senectutera oaelibes pervenerant, in aerarium deferre 
 jusserunt." ^ See p. 69. 
 
 ' etc. de Leg, iii. 3, 7 " familias peciiniasqne censento " ; lex Jul. Munic. 
 1. 147 "rationem pecuniae . . . aooipito." Peeunia here applies to both res 
 mancipi and nee mancipi. 
 
 * Cio. I.e. "aevitates suholes . . . cen.sento"; lex Jvl. Munic. 1. 145 
 "eorum . . . nomina, praenomina, patres . . . et quot annos quisqi'.e eernm 
 hahet . . . accipito." 6 p_ gg_ 
 
IV THE INDIVIDUAL MAGISTRACIES 223 
 
 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 
 /actio ; 1 but in 304 B.C. the landless proletariate was again con- 
 fined to the tribus urbanae^ 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 practi- 
 cally 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 freed- 
 men, were accounted less distinguished. 
 
 The distribution into centuries naturally followed the distinc- 
 tions 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 seniwwm) undoubtedly 
 contained the names of those who were past the age of compul- 
 sory service. The sexagena/rii, although the young bloods might 
 object to their voting for a war in which they were not to share,^ 
 
 ^ Liv. ix. 46 "forensis faotio App. Claudi censura vires naota, qui . . . 
 humilitius per omne.i tribus divisis forum et campum corrupit." Cf. Diod. xx. 
 46 (App. Claudius) ^5wKe rots jroWrats Utol TpaatpotvTO rtfi-^aaffOat. Mommseu 
 imagines that it was in this year that the landless citizens jfirst found a place in 
 the tribes [Staaisr. ii. 392 sq., 402 sq.). 
 
 ^ Liv. 1.0. " aliud integer populus . . . aliud forensis factio tendebat. . . . 
 Fabius simul concordiae causa, simiil ne humilimorum in manu comitia essent, 
 omuem forensem turbam excretam in quattuor tribus conjecit urbanasque eas 
 appellavit." 
 
 ' Sexagenayrius de ponte. Of. Cic. pro Rose. Amer, 35, 100 "Habeo etiam 
 dicere, quem contra morem majorum, minorem annis LX de ponte in Tiberim 
 dejeoerit"; Pestus p. 334 "quo tempore primum per pontem coeperunt comitiis 
 Buffragium ferre, juniores conclamaverunt ut de ponte dejioerentur sexagenari, qui 
 jam nuUo publico munere fungerentur, ut ipsi potius sibi quam illl deligerent 
 imperatorem." If pons could be taken literally, a curious parallel is furnished 
 by early Slavonic procedure. "The veohis passed whole days in debating the 
 same subjects, the only interruptions being free lights in the streets. At Nov- 
 gorod these fights took place on the bridge across the Volchov, and the stronger 
 party sometimes threw their adversaries into the river beneath" (Kovalevsky 
 Modem Customs and Ancient Laws of Russia p. 138). 
 
224 ROMAN PUBLIC LIFE chap. 
 
 or electing a general by ■whom they would not be led, still had 
 the right of taking part in the deliberations of the comitia 
 cerduriata. 
 
 It is obvious that the complete census of tribes and centuries 
 included every voting unit of Eome, and, in spite of the fact 
 that an individual scrutiny of the aerarii may not have taken 
 place,^ we must suppose that there was a tribal list of all the 
 citizens which proved the right to vote at the comitia tribvta and 
 the concilium plebis. But it is almost certain that, when an 
 historian mentions a census of Eepublican times, he is repro- 
 ducing merely the army list,^ 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 
 seniffres themselves are not entered.* The proletarii are poten- 
 tially, and in a sense actually, members of the Eoman army ; * but 
 it is very questionable whether they appear in the Republican lists. 
 It was, perhaps, not until the Principate that the census con- 
 tained the names of all male Romans above the military age.* 
 
 III. The recognitio equitwm. — The word eguites primarily and 
 properly applied only to the citizen cavalry of 1800 men, serving 
 on horses supplied by the state.* These formed the centuriae 
 equitum eqiw publico, and this class was the ordo equester in the strict 
 sense. 
 
 It is true that eguites 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.^ 
 They were no definite body, but were selected for a particular 
 service by the commander, if the censors had admitted their 
 pecuniary qualification.^ The consequence was that the terms 
 
 ' p. 221. 
 
 ^ "Eorum qui arma ferre possent" (lav. i. 44), tSk ^bvrwv t^v m-paTeiiniiov 
 TJKiKlav (Dionys. xi. 63), rCiv iv rah ijKtKiais (Polyb. ii. 24), 
 
 ^ Momnis. Slaatsr. ii. p. 411. 
 
 * p. 72. 
 
 ^ Beloch der Italische Bund p. 78. 
 
 » p. 73. 
 
 ' The change- is put hy tradition at the time of the siege of Veii (403 B.C. 
 Liv. V. 7 "quibus census equester erat, equi publici nou erant adsiguati 
 senatum adeunt factaque dicendi potestate equis se suis stipeudia facturos pro- 
 mittunt "). Livy here assumes a censiis as existing for the eguites equo publico 
 but it is questionable whether it was not transferred from these new eguites (egm 
 privato as they ai'e called by modern historians) to the old equestrian centuries. 
 
 ' Polyb. vl. 20 irXovrliidriv ainav yeyevquivris iw6 rod Tt/«;ToC t^s iKXayiji. 
 
IV THE INDIVIDUAL MAGISTRACIES 225 
 
 eqws and even m-do 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 Eepublic, was 
 400,000 sesterces.^ The censorship was only concerned with 
 this wider body of knights as the authority wftich proved the 
 monetary qualification of its individual members. The only 
 body of eguites which it recognised and treated as a corporation 
 was that of the eighteen centuries. 
 
 The review of the knights (eqwitwm census,^ recognitio equitum ^) 
 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.* 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 Eepublic was 
 made incompatible with a seat in the Senate.^ In the Gracchan 
 period, as we have seen, ten years' service had to be proved 
 before the knight could claim his dismissal.* 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.'' 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),^ 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 
 
 ' There is no direct authority for this particular census earlier than the Prin- 
 cipate. The fact that a censits, approximating to or identical with the equestrian, 
 was required torjudices 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 eqidtes equoprivato. 
 
 " Cicero Chient. 48, 134. » Suet. Glaud. 16. 
 
 ■> Val. Max._ii. 9, 7. 
 
 ' Cio. de Rep, iv. 2, 2. So Pompeiua, a consul who had never been a senator 
 (70 B.O.), claims and obtains his discharge before he enters on his office (Plut. 
 Pomp. 22). 
 
 « Plut. 0. Gracch. 2. See p. 184. 
 
 ' Liv. xxvli. 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." 
 
 8 OeU. iv. 12 ; Festus p. 108. 
 
 Q 
 
226 ROMAN PUBLIC LIFE chap. 
 
 equum), of retention " lead it on " (tradiic eguum).^ 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 Martins. 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 anim- 
 adverted on new evils which they believed to be undermining 
 the life of the state.^ 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* 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.* The objects of censorian animadversion were 
 the cruel punishment of slaves,^ the wrong done to a client, 
 which had been formerly punished by pontifical law,* the bad 
 education of children, whether it took the form of undue harsh- 
 ness or of over-indulgence,'' and the non-performance of the sacra 
 of the clan. 8 The censors discountenanced celibacy,* imposing 
 additional taxation on persistent bachelors. i" They discouraged 
 misalliances such as unions between free-born citizens and freed- 
 women,^^ 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 ; ^^ but the censors 
 
 ^ Cio. pro Oluent. 48, 134 ; Liv. xxix. 37. Removal from the ranks is 
 described as a deprivation of tlie horse (adimere equum, Liv. xxiv. 18, xli. 2, 7). 
 
 ^ 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). 
 
 2 "Judex domesticus," "domesticus magistratus" (Sen. Oontrov. il. 3 ; de 
 Benef. iii. 11). 
 
 ■* Cio. de Rep. iv. 6, 16 " Neo vero mulieribus praefectus praeponatur, qui 
 apud Graecos creari solet ; sed sit censor qui viros doceat moderari uxoribus." 
 
 ^ Dionys. xx. 13. ' p. 55. ' Dionys. I.e. 
 
 8 Festus p. 344. 
 
 ' Cic. de Leg. iii. 3, 7 " coelibes esse prohibento." 
 
 " Val. Max. ii. 9, 1 " Camillus et Postumius censores aera poenae nomine eos. 
 qui ad seuectutem coelibes pervenerant, in aerarium defeire jusserunt. " 
 
 " Liv. xxxix. 19. '^ cjo. p;„7_ i^ 28, 69. 
 
IT THE INDIVIDUAL MAGISTRACIES 227 
 
 restrained a reckless exercise of this power, and we find a senator 
 degraded for divorcing his wife without taking advice of the 
 family council.^ They also punished bad husbandry, neglect of 
 property,^ and luxurious living,* 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 {tuteld),^ but their scrutiny extended 
 to all legal relations that were held to involve bona fides, such as 
 those of partnership, mandate, and deposit.^ 
 
 (ii.) Disqualifications were pronounced as a consequence of 
 certain modes of life, trades, or professions. Actors were per- 
 petually disqualified from all civic privileges,* and gladiators 
 were probably subject to a similar degradation.^ Amongst dis- 
 honourable employments was reckoned that of a money-lender 
 who exacted an excessive rate of interest.* 
 
 (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,^ for the 
 neglect of constitutional formalities, i" for a misuse of the auspices, ^^ 
 or even for the passing of a law likely to injure the morals of 
 the community.^^ The judex might be punished for accepting 
 
 ' Val. Max. ii. 9, 2 "M. Val. Maximus et C. Junius Brutus Bubulous 
 censores . . . L. Annium senatu moverunt, quod, quam virginem in matri- 
 monium duxerat, repudiasset, nullo amicorum in consilio adhibito. " 
 
 2 Plin. II. N. xviu. 3, 11. 
 
 ' 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. 
 
 * Cf. Gell. V. 13 " M. Cato in oratione, quam dixit apud censores in Lentulum, 
 ita soripsit : ' quod majores sanotius habuere defendi pupillos quam olientem non 
 fallere.' " 
 
 ^ Greenidge Infamia in Roman Law p. 67. 
 
 ' Even amateur performances might call down the Twta. See Suet. Dom. 8 
 (Domitian) " susoepta oorreotione morum . . . quaestorium virum, quod gesticu- 
 landi saltandique studio teneretur, movit senatu." 
 
 ' The lex Julia Mimiapalis excludes them, like actors, Crom the municipal 
 senate ; the lex Acilia repetwndajrum from the bench oijudices. 
 
 8 Suet. Aug. 39 " notavitque aliquos quod, pecuniae levioribus uauris mutuati, 
 graviori foenore collocassent." 
 
 8 Plut. Gai. Maj. 17 ; O. Oracch. 2. 
 
 '" Gell. xiv. 7 " opus etiam censorium fecisse existimatos, per quos eo tempore 
 (i.e. at an unlawful time) senatus consultum factum esset." 
 
 " Cio. de Div. i. 16, 29 "Appius . . . censor C. Ateium (tribune 55 B.C.) 
 notavit, quod ementitum auspicia subscriberet." 
 
 ^2 Val. Max. ii. 9, 5 " M. autem Antonius et L. Flaocus censores (97 B.O.) 
 Duronium senatu movemnt, quod legem de coercendis conviviorum sumptibus 
 latam tribunus plebi abrogaverat. " 
 
228 ROMAN PUBLIC LIFE chap. 
 
 bribes,^ the soldier or officer for shirking service or for showing 
 cowardice or disobedience,^ and the voting citizen for a misuse 
 of his judicial or elective power.* 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 {prmvaricatio, calumnia),* and attended false witness 
 and false oaths. Since there was no secular punishment for 
 perjury, its visitation was peculiarly the work of the censors.* 
 
 (iv.) The censors sometimes pronounced disqualifications as 
 the result of a judicial sentence.® Theft and other private 
 delicts were attended with infamy, and sometimes the censure 
 was independent of the judgment of a court.^ The censure, 
 which followed a criminal condemnation, might be either one 
 of the censors' own creation * or the mere fulfilment of a dis- 
 qualification already enjoined bj' law. Of the second kind were the 
 disabilities pronounced by the lex Cassia of 104 B.C. * or by the lex 
 Calpwrnia de ambitu of 67 B.C., the latter of which enjoined per- 
 petual exclusion from the Senate as a result of condemnation.^" 
 
 lY. The efiects 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 ofi'ence. The senator was 
 removed from the list, the knight from the equestrian centuries, the 
 commoner is said iribu moveri or aerarius fieri, or both." " Removal 
 
 1 Cio. pro CItwiU. 42, 119 ; 43, 121 ; Suet. Dmn. 8. 
 
 " Liv. xxiv. 18 ; xxvii. 11 and 25. 
 
 ' In 204 B.C. the censor M. Livius disfranchised for the purposes of the comitia 
 ceniuriata (aerarios rdiquU) thirty-four out of the thirty-five tribes "quod et 
 innocentem se condemnassent et condemnatnm oousulem et eensorem fecissent " 
 (Liv. xxix. 37). 
 
 * Lex Jul. Mwnic. 1. 120. 
 
 " Cic. de Off. iii. 31, 111 " indicant (the sanctity of the oath in former times) 
 notiones animadversionesque censorum, qui nulla de re diligentius qnam de jure 
 jurando judicabant." 
 
 ' To this form of disqualification the name " mediate infamia " has been given 
 by modern jurists. 
 
 ' Cic. pro Cluent. 42, 120 "quos autem ipsi L. Gellius et Cn. Lentulus duo 
 censores . . . furti et captarum peouniarum nomine notavernnt, ii non modo in 
 eenatum redieruut, sed etiam illarum ipsarum rerum judiciis absoluti sunt." 
 
 8 Liv. xxix. 37 (in 204 B.C., Claudius Nero) " M. Livium (his colleague), quia 
 populi judicio esset damnatus, equum vendere jussit. " 
 
 ' It enacted " ut quem populus damnasset cuive imperium abrogasset in senatu 
 ne esset " (Ascon. in Cornelian, p. 78). 
 
 '» Dio Cass, xxxvi. 21. 
 
 '^ Liv. xlv. 15 "omnes iidem ah utroque et tribu remoti et aerarii facti" • 
 xliv. 16 "tribu quoque is motus et aerarius faotus"; xxvii. 11; xxix. 37 
 "aerarios reliquit." 
 
IV THE INDIVIDUAL MAGISTRACIES 229 
 
 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 faeere implies exclusion from the centuries.^ 
 
 V. The lustrum. — After the ranks of the various orders had 
 thus been purified, the lustral sacrifice {lustratio) was ofiered for 
 the whole assembled army in the field of Mars.^ The ox, the 
 sheep, and the pig {suovetawrilia), 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.* 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 ofiice. 
 These were the leasing of the piiblic revenues, the main- 
 tenance 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 (publiccmi) of a pro- 
 spective 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 Campomus was dealt with in this waj', and 
 the royal domains of the kings whom Eome had supplanted 
 were, with the confiscated territory of Corinth, let on long leases 
 
 ^ See Greenidge Infarrma in Roman Law pp. 106«110. Mommsen {Staatsr. 
 ii. pp. 402 ff. ) makes the expressions tribu movere and in cteraHos re/erre identical 
 after 312 B.O. and interprets both as signifying the removal from a higher to a 
 lower tribe. ^ Liv. i. 44 ; Dionya. iv. 22. 
 
 ' At each lustrum vota were offered " quae in proximum lustrum suscipi mos 
 est" (Suet. Aiig. 97). Before the censorship of Soipio Aemiliauus it had been 
 the custom to pray " ut populi Bomani res meliores amplioresque facerent " ; after 
 it, on hia initiative, "ut eas perpetuo incolumes servent" (Val. Max. iv. 1, 10). 
 
280 ROMAN PUBLIC LIFE CHAr. 
 
 to puhlicoMi,'^ -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 fijced the 
 conditions under which the contract was to be undertaken.^ 
 
 The second kind of tax-farmer is a true middleman.* The 
 puUicanus 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 (occupatmius ager). It was either tilled 
 land (ager) enjoyed by a possessor, or pasture land (diva pasaia, 
 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.* The puMicani 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.^ 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 
 
 ^ 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 jjer annos [quinos], alii per annos centenos pluresve : finito illo tempore itenim 
 veneunt locanturque ita ut vectigalibus est consuetude "). 
 
 ' 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 
 (Pliu. S.N. xxxiii. 78). 
 
 ' The jurists inform us that this is the true sense of puUicanus ; the con- 
 ductores are ouly publicanoTum loco {Dig. 39, 4, 12, 13). In common parlance, 
 however, both are pvilicani, and this usage is etymologically justifiable, since 
 they are both concerned with a publicwm, a word which denotes state revenue 
 and state service {Dig. 39, 4, 1 ; Tac. Ann. xiii. 51 ; Liv. xxiii. 49, 1). 
 
 ^ Vectigal {dwoipopd Pint. Ti. Qracch. 8 ; of. App. B.C. i. 7). In the case of 
 pasture land it was called scriptura (Festus p. 833). 
 
 ^ Zex agraria 1. 85 " ex lege dicta, quam . . censores . . deixeruut, publicano 
 dare oportuit." 
 
IV THE INDIVIDUAL MAGISTRACIES 231 
 
 for this use, and the right of collecting this vectigal within a 
 given area is sold to a company of jpublicani. A great extension 
 was given to this system of tax-farming by its application to 
 provincial administration. The Eoman translated the tithe 
 (SeKttTTj, 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} Asia 
 was the first province to which the experiment of a collective 
 sale of the taxes in Eome was applied.^ 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 Eoman 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.^ 
 Their merely executive capacity is an explanation of the fact 
 that they could not alienate the property of the Eoman 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 fixe'd 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 state- 
 ment made by the quaestors, the permanent officials of the 
 aerariwm. 
 
 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 
 
 1 Cio. in Verr. u. 26, 63 ; 60, 147 ; iii. 7, 18. 
 
 ^ ib. iii. 6, 12 and 14. 
 
 ' Polyb. vi. 17. The Senate can avuTTii/MTos yevofnivov Kov^tcat Kal rb 
 irapdirav ^Swdrov Tivbs trvfJL^dvTos &Tro\v(rat ttjs ^pyojvias. Of. 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, £. C. ii. 13). 
 
232 ROMAN PUBLIC LIFE chap. 
 
 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 buUdings.^ 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.^ For the purpose of repairs or 
 new works a credit {peamia attributa) was granted by the Senate, 
 which directed the quaestors to employ this money at the 
 discretion of the censors.^ 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 ultra tributa,^ a 
 designation which may be a reljc of a time when such opera were 
 not leased, but were burdens (munera, moenia), owed as a voluntary 
 tribute by the community.* 
 
 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,^ or where public buildings had been usurped by 
 privatiJ 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 ; * 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 
 
 ' Cic. de Lsg. iii. 3, 7 "templa, vias, aquas . . tuento'' ; ad Fam. xiii. 11, 1 
 ' ' sarta tecta (i. e. the repairs of walls and roofs) aediam sacrarum locorumqiie 
 communium tiieri." 
 
 2 Cf. Liv. xxxix. 44 "ultro tributa infimis (pretlia) locaveruut." 
 
 ° ib. xliv. 16 "ad opera publloa faclenda cum eis (censoribus) dimidium ex 
 veotigalibns ejus anni attributum ex senatus oonsulto a quaestoribus esset " ; 
 xl. 46 "censoribus deinde postulantibus ut pecuniae summa sibi, qua in opera 
 publioa uterentur, attribueretur, yeotigal annuum decrefcum est." 
 
 * Less Jul. Munie. 1. 73 ; Liv. xxxix. 44 (quoted n. 2). 
 
 " Mommsen (Staatsr. ii. p. 446) takes tbe phrase to mean something ' ' volun- 
 tarily granted " by the Senate to the ma^strate. 
 
 ' Liv. xxxix. 44. The later tendency, however, was for such public rights 
 to be protected by the praetot's interdicts. 
 
 ' ib. xl. 51 "complura saoella publica quae fueraut occupata a privatis 
 publica sacraque ut esseut paterentque populo ourarunt." 
 
 8 ib. xliii. 16 "censores ad pignora capienda miserunt multamque pro 
 contione private dixerunt, " 
 
IV THE INDIVIDUAL MAGISTEACIES 233 
 
 defended by the latter magistrates. Jurisdiction bearing a 
 resemblance to that of civil law was concerned with the ultra 
 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,^ but some- 
 times, no doubt, 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 ultra 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-ofldcial position of a pubUcaims, the granting 
 of a judex or remperatores was, at least in the later Kepublic, 
 usual.^ 
 
 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 ; ^ while the tribunate is so intimately 
 bound up with every phase of the constitutional development 
 and organisation of Eome, 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,* and we have observed 
 the numbers of the holders of the office rising from two to 
 four, and finally to ten.^ The right of eliciting resolutions from 
 the Plebs and the coercive power and jurisdiction possessed by 
 this office have also been described.* 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'' and the right of taking auspicia vmpetraiiwa,^ 
 
 1 Lex agraria U. 35, 36. ^ ib. ''p. 20S. 
 
 < p. 93. » p. 94. ° pp. 95 ff. '< p. 190. = p. 162. 
 
234 ROMAN PUBLIC LIFE chap. 
 
 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 ; ^ 
 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 davdis assignamdis,^ but in the 
 closing years of the Republic actually conducted the election 
 of such officials.* Their power of prohibition and their right 
 of veto,* limited for a moment by Sulla but soon restored in 
 all its plenitude,^ became, when constitutionally employed, a 
 guardianship of the whole state against the illegal or uncon- 
 stitutional 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,® 
 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.'^ 
 
 The minor Magistrates 
 
 Prominent amongst the minor magistrates {minores magis- 
 tratus) ® stands a group known finally, and perhaps in Eepublican 
 
 > p. 126. 
 
 2 Cic. de Leg. Agr. ii. 7, 17 "totles legibus agrariis ouratores constituti sunt 
 triumviri quinqueviri decemviri." Cf. ib. ii. 12, 31 "eodem jure . . . quo 
 liabuerunt (pullarios) tresviri lege Sempronia." 
 
 * ib. ii. 7, 16 "jubet enim (the agrarian law of Eullus) tribunum plebis, 
 qui earn legem tulerit, creare deoemviros per tribus septemdecim, ut, quern 
 novem tribus feoerint, is decemvir sit." * pp. 174^ 177. 
 
 ° The nature of the SuUan limitations is unknown. Caesar says "Sullam 
 nudata omnibus rebus tribunicia potestate tameu interoessionem liberam reli- 
 quisse" (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 eases in which it could not be employed. There are instances 
 of the tribunician veto between 81 B.o. and 70 B.C., the date of the restoration 
 of the tribune's power. See Momms. Staatsr. ii. p. 308 nn. 1 and 2 
 
 °P-162. 'p. 182. * Cic. de"ie^. iii. 3, 6. 
 
IV THE INDIVIDUAL MAGISTRACIES 235 
 
 times, as the vigmti-sex-viri} 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 
 trihuta, although doubtless a separate elective act was required 
 for each college. 
 
 (a) The iiiviri capitales, sometimes called by the less technical 
 name of iiiviri nodwni, probably from their duty of extinguish- 
 ing fires, were introduced as a standing institution about the year 
 289 B.O.^ 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.^ 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.* They also heard ordinary police-court charges, such as 
 those of vagrancy or nocturnal disturbance of the peace,^ and 
 they exercised police duties in the town, such as that of preserv- 
 ing order in the streets.® 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 juris- 
 diction which would bring them into contact with the people. 
 
 (i) The triumvirate of the masters of the mint {iiiiiiri mone- 
 tales),'' originally an occasional, first becomes a standing ofiice 
 about the time of the social war.^ 
 
 (c) Six sanitary commissioners, acting probably as subor- 
 dinates to the aediles and bearing the titles iwiri viis in 
 urbe pwgandis (or viarum cwrandarwn), imri viis extra propiusve 
 urbem Bomam 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.® 
 
 1 Festus p. 233 ; Dio Cass. liv. 26. ^ Liv. Ep. xi. 
 
 s Cic. de Leg. iii. 3, 6 ; Sail. Cat. 55. 
 
 * Val. Max. vi. 1, 10 ; Cic. pro Glumt. 13, 38. 
 
 " Ascon. m Milan, p. 38. ^ Plaut. Amph. 1. 1, 3. 
 
 ' Pompon, in Dig. 1, 2, 2, 30. The full official title whioli first appears in 
 44 B.C. is aiflwoy a{rgen,to) a(ere) f{limdo) /[eriundo). For this title and its 
 variants see Momms. Staatsr. ii. p. 602 n. 3. 
 
 ' Momms. Staatsr. ii. p. 601. ' 
 
 " Verbally tlie second title might, and perhaps should, refer to the viae q[ 
 Italy. But the office is probably an urban magistracy. See ib. p. 604. 
 
236 ROMAN PUBLIC LIFE chap. 
 
 (d) The xviri stUtibus jvdicandis 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.,^ 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 Uberales causde, but they 
 have risen to the rank of independent magistrates.^ 
 
 («) The iiiiviri praefedi Capuam Ovmas^ 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 Eome after the 
 institution of the gymestiones perpetvae * 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 
 indices quaestionis is shown both by the fixed qualification — it is 
 generally, perhaps always, an ex-aedile that is appointed ^ — and 
 by the fact that, like the magistrate who takes the oath in leges,^ 
 these judices swear to observe the special law which they are 
 administering.'' They were probably elected by the people 
 in the comitia trilmta.^ 
 
 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.^ In the year 311 B.C. the appoint- 
 ment of consular delegates for the command and maintenance of 
 the fleet was also entrusted to the tribes, i" These iimri navales 
 
 ^ Liv. iii. 55. 
 
 ^ Cio. de Leg. iii. 3, 6. For their jurisdiction in cases of freedom in the 
 Ciceronian period see Cicero Caec. 39, 97 ; pro Domo 29, 78. 
 3 Festus p. 233. 
 
 * p. 207. 
 
 ° This was the case with C. Claudius Pulcher {G.I.L. i. p. 279), C. Junius 
 (Cio. pro Gluent. 29, 79), and C. Julius Caesar (Suet. Caes. 11). 
 « p. 189. 
 ' Cic. pro Cluent. 33, 91. 
 
 * Mommsen inclines to think that the office followed as a matter of course on 
 the aedUeship {Staatsr. ii. p. 590). 
 
 « p. 155. i» Liv. ix. 30. 
 
IV THE INDIVIDUAL MAGISTRACIES 237 
 
 were not annual officials, but, in obedience to the occasional 
 character of the Eoman 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 triluta, in 
 later times occasionally by the concilium pleUs,^ of minor magis- 
 trates with extraordinary functions. Such were the officials for 
 conducting a colony {coloniae deducendae), for the assignment of 
 land {agris dandis assigna/ndis), or for the dedication of a temple 
 (aedi dedicandae). To this category belong the occasional curatores 
 for the corn-supply and the roads (armonae, viarwn). 
 
CHAPTEE 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.^ 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 Eoman, 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 un- 
 limited. They could create new parliaments, as they did the 
 comitia tributa popuii; ^ they could delegate full powers of legis- 
 lation to parliaments already existing, as they did to the concilivm 
 plehis? They could devolve powers almost amounting to 
 sovereign rights on an individual, as they devolved them ulti- 
 mately 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 
 
 ' p- 43. = p. 102. » p. 126. 
 
CHAP. V THE PEOPLE AND ITS POWERS 239 
 
 — 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 esskt rogarier, ejus ea lege 
 
 NIHILUM ROGATUM.^ 
 
 Primarily this clause guarded a law against being a breach of a 
 religious obligation ; ^ but, as interpreted by Cicero, it was a 
 profession of respect even for certain ultimate secular rights — 
 the rigjit, 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),^ 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 hloc 
 {per satwram), a provision re-enacted by a lex Gaecilia Didia of 
 98 B.C.* 
 
 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 
 imperiwm prolonged by a plebisciimm;^ 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.* 
 
 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 
 
 ^ Cio. pro Gaec. 33, 95; of. pro Domo 40, 106 "Quae tua fuit oouseoratio? 
 Tuleram, inquit, ut mihi lioeret. Quid ? Non exoeperas ut, si quid jus non 
 esset rogari, ne esset rogatum ? " 
 
 ^ Va,lerius Probus gives the formula which emphasises this religious aspect of 
 the saving clause. It was si qoid saoki sancti est quod non jure sit rogatum, 
 
 EJUS HAG LEGE NIHIL EOQATUB. 
 
 3 See p. 107. 
 
 ^ Cio, pro Domo 20, 53 "quae (est) sententia Caeciliae legis et Didiae nisi 
 haec, ne populo necesse sit in oonjunotis rebus oompluribus aut id quod uolit 
 acoipere aut id quod velit repudiare ? " The principle had existed as early as the 
 lex Acilia Repetimdwrvm of 122 (1. 72). See Mommsen Staatsr. iii. p. 336. 
 
 5 Llv. viii. 23. 
 
 * ib. ix. 42. Compare, however, i. 22 (296 B.C.), where the plebiscitwm and 
 the senatus consultv/m are both mentioned in connexion with the prorogation 
 of the command of L. Volumnius. For the recognition of the imperiwm of the 
 consul for a single day to enable him to triumph, see p. 158, 
 
240 ROMAN PUBLIC LIFE ohap. 
 
 of this kind are found in 187,i 172,^ and 141 ^ 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.* 
 
 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,^ 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.® A mediate grant of the citizen- 
 ship 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 Mariua 
 to raise three persons to the citizenship in any colony which he 
 planted.'^ 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 ; ^ but Pompeius may provisionally have conferred the 
 citizenship during the campaign. Marius granted the boon on 
 the field of battle ; * he may have already had the power given 
 him by the people,^" 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, ^^ 
 could be effected, if at all, only by the people, and the people 
 
 ' Liv. xxxviii. 54-60. ' ib. xlii. 21 and 22. 
 
 ' Cio. de Fin. ii. 16, 54. 
 
 * The guaestio MamUia of 110 B.C. (Sail. Jug. 40). 
 i> p. 14. 
 
 ^ The lex Plautia Papvria (Cic. pro Arch. 4, 7 ; see p. 311) was the work of 
 two tribunes. 
 
 ' Cio. pro Balbo 21, 48 "lege Appuleia . . . qua lege Saturniaus C. Mario 
 tulerat, nt in singnlas oolonias ternos cives Romanos facere posset. " 
 
 8 ib. 8, 19 "lege quam L. Gellius Cn. Cornelius (ooss. 72 b.o.) ex senatus 
 sententia tulerunt . . . videmus satis esse sanctum ut cives Romani sint ii, qnos 
 Cn. Pompeius de consilii sententia singillatim civitate donaverit." 
 
 * Val. Max. v. 2, 8 "(C. Marius) duas . . . Camertium cohortes mira virtute 
 vim Cimbrorum sustinentis in ipsa aoie adversus condioionem foederis civitate 
 flonavit." 
 
 w Momms. Staatsr. iii. p. 135 n. 5. " Cic. ^o Gaec. 35 101. 
 
V THE PEOPLE AND ITS POWERS 241 
 
 might in this particular be represented by the Plebs. It was 
 this body which pronounced on the fate of Capua in 211 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.^ 
 
 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 municvpia 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.^ 
 
 The deprivation of voting power — tribu movere in the extreme 
 sense — seems to have been retained by the censor,^ although a 
 protest against its use to disfranchise a whole class was raised 
 in 169 B.C.* The people alone could impose a new burden on 
 itself, and taxation belonged wholly to the comitia.^ 
 
 Passing to legislation on private matters, we find that any 
 fundamental change in the legal relations of citizens to one another 
 must be efiected by the people. The law of the Twelve Tables is 
 itself a lex centuriata, and we need only think of laws, such as those 
 
 ' Liv. xxvi. 33 (speech of M. AtUlus Eegulus) " ' Per senatum agi de Campanls, 
 qui oives Bomani sunt, injussu populo non video posse. Idque et apud majores 
 nostras in Satrioanis factum est (319 B.C.), cum defeoissent, ut M. Antistiua 
 tribunus plebis prius rogationem ferret soisoeretque plebs uti senatui de Satrioanis 
 sententiae dicendae jus esset. Itaque censeo cum tribunis plebis agendum esse 
 ut eorum unus pluresve rogationem ferant ad plebem qixa nobis statuendi de 
 Campanis jus flat.' L. Atilius tribunus plebis ex auotoritate senatus plebem in 
 haeo verba rogavit . . . Plebes sic jussit, ' Quod senatus juratus, maxima pars, 
 censeat, qui adsidetis, id volumus jubemusque.' " 
 
 ^ ib. xxxviii. 36 "edocti populi esse, non senatus, jus suifragii quibus velit 
 impertiri, destiterunt inoepto." 
 
 » p. 229. 
 
 * Liv. xlv. 15 (169 B.O. ; on tie proposal of the censor Sempronius to dis- 
 franchise the freedmen, his colleague Claudius) "negabat . . . suffragii lationem 
 injussu populi censorem ouiquam homini, nedum ordini universo adimere posse : 
 neque enim, si tribu movere cosset, quod sit nihil aliud quam mutare jubere 
 tribum, ideo omnibus quinqne et triginta tribubus'emovere posse, id est oivitatem 
 libertatemque eripere." 
 
 " In Liv. vii. 16 (357 B.o.) we find the account of the creation of the mcesima 
 marmmissionis by the comitia tribnta populi. 
 
 R 
 
242 ROMAN PUBLIC LIFE chap. 
 
 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.^ 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;^ 
 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 (jyraescriptio), which described the formal circumstances 
 of its enactment ; ^ (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.^ 
 A law without a sanction was imperfecta.^ The method of repeal 
 most frequently practised at Eome was rather that of super- 
 session 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 pro- 
 
 ' This oliange was effected by a lex Aebwtia (Gell. xvi. 10, 8 ; Gaius iv. 30). 
 
 2 p. 205. ' 
 
 * Tlie fullest jaraescriptio which has been preserved Is that of the lex Quvndia 
 de aqtiaediictibus, a consular law of 9 B.O. (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]." 
 
 ^ Ulpiau Reg. prae/. 2 " Minus quam perfecta lex est, quae vetat aliquid fieri 
 et, si factum sit, nou resoindit, sed poenam injungit ei qui contra legem fecit." 
 The Licinio-Sextian agrarian law of 367 was apparently of this kind. 
 
 ' Macrob. Gomm. in Somn. Seip. ii. 17, 13 " inter leges quoque ilia imperfecta 
 dioitur, in qua nulla deviantibus poena sancitur." 
 
V THE PEOPLE AND ITS POWERS 243 
 
 nouncecl by some previous measure.-' Repeal might be either 
 complete or partial, and a series of technical terms was evolved 
 to express this difference.^ 
 
 The attempt of certain laws to secure finality by prohibiting 
 repeal was necessarily futile, as opposed to the whole theory of 
 parliamentary sovereignty.* It is possible, however, that the 
 leges sacratae of the early Republic, such a's 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,* 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,^ 
 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 resemb- 
 lance 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,^ had been 
 
 * Cic. ad Alt. iii. 23, 2 "alterum caput est tralaticium de impunitate SI QUID 
 CONTEA ALIAS LEQES EJUS LEQIS ERGO FACTUM SIT." 
 
 ' Ulpian op. cit. 3 " Lex ant rogatur, id est, fertxiv ; ant abrogatur, id est, 
 prior lex tollitur ; ant derogatnr, id est, pars primae (legis) toUitur ; aut sub- 
 rogatur, id est, adjicitur aliquid primae legi ; aut obrogatur, id est, mutatur 
 aliquid ex prima lege." Of. the clause in a law cited by Cicero {ad Att. iii. 23, 
 3) " SI QUID IN HAC ROQATIONE SORIPTUM EST, QUOD PER LEGES PLEBISVE SOITA 
 PROMULGARB, ABROGARE, DEEOGARE, OBROGARE SINE FRAUDS SUA NON LIOEAT." 
 
 ' Cic. I.e. 23,2 "neque enim ulla(lex) est, quae non ipsa se saepiat difficnltate 
 abrogationis. Sed, cnm lex abrogatur, illud ipsum abrogatnr, quo mode earn 
 abrogari [more] oporteat." 
 
 * p. 239. " See the section on the Senate. 
 
 ' 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 tribuui 
 . . . ut Quinctius consul de bello ad populum ferret : omnes centuriae jussere. " 
 
244 ROMAN PUBLIC LIFE chap 
 
 broken. Such a declaration could be made only by the people.^ 
 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 com- 
 munity. The comiMa centuriata seems invariably to have repre- 
 sented the people in this capacity.^ With respect to the 
 conclusion of international relations, we shall touch elsewhere 
 on the controverted question * 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 magis- 
 terial 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 bj!^ the people.* In 
 the middle Eepublic there was no question that treaty relations 
 were the prerogative of the people,^ and, unlike the case of the 
 declaration of war, the Plebs is here included in the conception 
 of the people.^ 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.' 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 
 
 '■ Polyt. vi. 14 iirip etp^vijs oStos (6 dijfios) /SouAei/erai Kal TroX^/tow. 
 ^ Mommsen Slaatsr. iii. p. 343. 
 
 * See the section on the Senate. 
 
 * Polyb. i. 62 (agreement between Lutatius Catulus and the Carthaginians in 
 241 B.C.) 4tI To1aB€ tpLhiav etvai KapxTjSoviois Kal 'Pw/iafois, iav Kal tQ d'/jfitp ruv 
 'Pu/ialuv crwdoK^. The people rejected the treaty, but it was subsequently 
 maintained that, but for this saving clause, it would have been binding (ib 
 iii. 29). 
 
 ' ib. vi. 14 Kal W ""epl av/j-iJiaxlas Kal SioKiaeas Kal irivBriKQv oBtos (o 
 STJfJLOs) iffTiv 6 ^e^aiQv ^/cacrra toijtujv Kal /ct/pia TroLwv ^ Toivavrlov. 
 
 ^ 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 tiibus, uti 
 rogas jusserunt. " 
 
 ' So on the conclusion of the second Punic war (Liv. xxx. 43 " M". Acilius 
 et Q. Minuoius tribuni plebis ad popuhim tulerunt ' Vellent juberentne senatum 
 decernere ut cum Carthaginiensibus pax fieret, et quem earn pacem dare quemque 
 ex Africa exercitum deportare juberent ' "). 
 
V THE PEOPLE AND ITS POWERS 246 
 
 the work of a commander and a senatorial commission. On the 
 other hand, cities with treaties {civitates foederaiae) and cities with 
 charters {civitates liberae) have their rights given them by the 
 people. In the one case the rights are guaranteed by an irre- 
 vocable 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)?- 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 ; ^ 
 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 plebiseitwm 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,* 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,* 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 vmperium by law 
 would not pronounce a sentence, but would bring the case 
 immediately before the people. A trial before the people 
 {jvdicivm populi) took place when a magistrate recognised the 
 limitations on his power; the provocatio — an extremely rare 
 occurrence in the later Eepublic — 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. 
 
 ' See lex Antonia de Termessitms (Bruns Fonies). 
 " p. 47. ' p. 187. '' p. 63. 
 
246 KOMAN PUBLIC LIFE chap. 
 
 To this there is the exception furnished by the special capital 
 jurisdiction of the Plebs.^ 
 
 (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 per- 
 duellionis — although possessing no jus ageiidi cum populo, yet 
 guided the assemblies in which an appeal from their decision 
 was made ; ^ and secondly, the tribune, when conducting a 
 capital prosecution before the comitia centu/riatsi, approached, and 
 perhaps had the presidency of, this body.^ 
 
 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 coerdiio of consuls and praetors, when the fine which 
 they imposed passed the limit of the multa suprema* came before 
 the comitia trihuta populi. The jurisdiction of the aediles * was 
 always exercised before the tribes ; the curule aediles as magis- 
 tratus populi must have brought their case before the comitia 
 tr^uta populi; the plebeian aediles, who, as magistrates of the 
 Plebs, had no right of approaching the people, appeared before 
 the concilium pleUs. With regard to the tribunes, where their 
 jurisdiction was capital, it may in certain cases have been 
 exercised by the conciiium plebis, but usually necessitated an 
 appearance before the comitia centuriata; ® where it was pecuniary, 
 the tribune would invariably have brought the case before Ms 
 own assembly of the Plebs. 
 
 The procedure in a judidvm 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 (anguisitio).'' This is conducted with 
 the fullest publicity before an informal assembly or cmdio which 
 
 ' See below on the competence of the concilium plebis, 
 ' See Momms. Staatsr. i. p. 195 ; ii. p. 618. ' See p. 161 
 
 * p. 169. 6 p 211. e p 161. 
 
 ' AnquisiUo (a variant of the qxtaestio of the magistrate when he investigates 
 on his own authority) perhaps means an "inquiry on both sides," i.e. through 
 accusation and defence (Lange Rom. Alt. ii. p. 470 ; cf. Festus p. 22 "anquirere 
 est circum quaerere "). 
 
V THE PEOPLE AND ITS POWERS 247 
 
 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 (rogaUo), 
 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.^ 
 
 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 " (guarta accusatio).^ 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.* 
 
 Hitherto we have been treating the case of a jvdicivm popuU 
 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 dwwmviri perdwllionis 
 was, as we know from the case of Rabirius,* regulated at times 
 in such a manner that an appeal to the people was an essential 
 part of the procedure. 
 
 ' Liv. ii. 52 (the tribunes) "cum capitis anquisissent, dno milia aeris daranato 
 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." 
 
 ^ Cio. ^0 Dom. 17, 45 "cum tarn moderata judicia populi sint a majoribns 
 constituta . . . ne inprodicta die quis acousetur, ut ter ante magistratus 
 accuset intermissa die quam multam irroget aut judicet, quarta sit accnsatio 
 trinum nundinum prodicta die, quo die judicium sit futurum." Cf. App. 
 £.0. i. 74. 
 
 ' Cic. I.e. "si qua res ilium diem aut auspiciis aut excusatione sustulit, tota 
 cansa judiciumque sublatum sit." * Dio Cass, xxxvii. 27. 
 
248 ROMAN" PUBLIC LIFE chap. 
 
 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 anguisitio 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 Home. 
 
 The people is represented from a very early time as rescinding 
 its own sentences.^ 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.^ But, on the other hand, Metellus, " interdicted " 
 by a consular bill, which must have been passed at the comitia 
 centuriata,^ was restored by the rogatio of a tribune,* while Cicero 
 himself, banished by a tribunician enactment, was recalled from 
 exile by a consular law passed at the comitia centuriata.^ 
 
 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.® 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 con- 
 demned under the Pompeian laws of 52 B.C.'' The instances of 
 
 1 Cic. ^0 Dcfino 32, 86 "at vero . . . Kaeso ille Quinotius (cf. liv. iii. 13) et 
 M. Furius Camillus et M. Servilius Ahala (of. Liv. iv. 16, 21) . . . populi inoitati 
 vim iraoundiamque subierunt ; damnatique comitiis oenturiatis cum in exilium 
 profugisaent, nirsus at) eodem populo placato sunt in suam pristinam dignitatem 
 restituti." 
 
 2 Cio. Brut. 34, 128 ; post Red. in Sen. 15, 38. 
 s App. B.G. I 31. 
 
 * Cio. pro Plane. 28, 69 ; post Red. in Sen. 15, 38. 
 » Cio. ad Att. iv. 1, 4. 
 ® Auct. ad Herenn. ii. 28, 45. 
 
 ' Caes. B.O. iii. 1 "praetoribus tribunisque plebis rogationea ad popnlum 
 ferentibus ... in integrum restituit." Cf. Suet. Caes. 41 ; Dio Cass, xliii. 27. 
 
V THE PEOPLE AND ITS POWERS 249 
 
 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 con- 
 demned for an ordinary crime,^ and, therefore, presumably by 
 an ordinary quaestio perpetva, and it seems clear that by Cicero's 
 time this power of restitution by the comitia had come to be re- 
 garded 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.^ 
 
 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 interdidio, which was an act of the people and the confirma- 
 tion 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 plebiscUwm. 
 Marius pretended that such a permit was necessary for his 
 entrance into Rome in 87 b.c.,^ and Octavian in 43 B.C. had a 
 law passed which rescinded the outlawry of Dolabella.* 
 
 Amnesty is an act which implies that no trial and no con- 
 demnation, 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 pre- 
 rogative, 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.,* 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.* 
 
 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,^ neglect of either of which made a law ipso 
 
 1 " de alea oondemnatum " (Cio. PMl. ii. 23, 56), that is, probably, under the 
 lex OoTTieUa de fcHsis (Rein Grim/mcdrecht p. 833). 
 
 2 See p. 248. 
 
 8 Plut. Mar. 43 ; cf. Veil. ii. 21 ; App. B.C. i. 70. 
 
 * App. B.C. iii. 95. ^ Veil. ii. 58 ; cf. Cio. PMl. i. 1, 1. 
 
 8 Dio Cass. xlix. 48. ' pp. 166, 179. 
 
250 EOMAN PUBLIC LIFE chap. 
 
 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.^ In the earlier period of Eepublican 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 creaM forced to abdicate their office, 
 a renewal of the elective procedure following on their abdication ;^ 
 and even in the case of laws which oflFended against fundamental 
 principles of the constitution, it was at all times considered safer 
 to secure their formal repeal.* 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 conse- 
 quence of formal flaws. 
 
 When we turn from the " people " in general to its manifesta- 
 tions 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 Eoman 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,* but under the changing 
 forms there is a unity of personnel which forbids us regarding the 
 different assemblies as different sovereigns.^ The only disturbance 
 to this unity is found in the fact that the Patricians were always 
 excluded from the concilium of the Plebs.* 
 
 The comitia curiata, the oldest sovereign in Eome, was a mere 
 shadow of its former self. Its main constitutional function was that 
 
 ' When Varro eaya [L.L. vi. 30) "magistratus vitio creatus nihilo secius 
 magistratus " he is reflecting the practical procedure — ^hardly the constitutional 
 theory, unless the dictwm implies that repeal is impossible because uuuecessary, 
 and that there is no authority for determining the nullity of the election. 
 
 ' Cicero says, with respect to the law exiling him, that there was some point 
 in its being held invalid as a privUegivm, " sed multo est melius abrogari " {ad 
 Ait. iii. 15, 5). 
 
 * 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 loois, ' tributa.' " 
 
 " How easily one comitia could melt into another is shown by the words of 
 Cicero lad Fam. vii. 30 (44 B.C.)] "lUe autem (Caesar), qui comitiis tributis 
 esset auspioatus, centuiiata habuit. " 
 
 ' See Appendix on the comitia tributa. 
 
V THE PEOPLE AND ITS POWERS 251 
 
 of passing the lex curiata, which was necessary for the ratification 
 originally of the imperium^ and, with the creation of fresh 
 patrician magistracies, of the potestas which these involved.^ Yet 
 although in theory no magistracy was properly constituted (Justus) 
 until its holder had received the ratification of the cmiae, we 
 know that in the case of those with imiperiwm,, and we may con- 
 clude that in that of others, most of the ordinary functions could 
 be exercised without this sanction. It was only the full exercise 
 of the imperiwm, whether in jurisdiction, in military command, or 
 in the transmission of oflSce, that was in suspense until the lex 
 had been elicited. Without it the praetor could not give justice 
 from his tribunal,^ the consul could not hold an assembly for the 
 creation of his successor,* and whether as magistrate or pro- 
 magistrate could not exercise the full imperiwn in the field,* 
 until the ambiguous wording of the lex Cornelia de provinciis 
 ordinandis made the requirement in this last particular a doubtful 
 point.^ 
 
 For the purpose of this conferment the comitia mi/ridta was in 
 Cicero's day often represented by but thirty lictors,' 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 ealata.^ The public will and testament made at this 
 assembly was extinct at the close of the Eepublic; but the 
 comitia still met, under the presidency of the pontifex maximus, for 
 the inauguration of the rex sacrwvm and the flamines, and under 
 the same guidance for the detestatio sacrorvm made by one who 
 passed from his gens either by an act of adrogation or by transi- 
 tion from the patrician to the plebeian order.* 
 1 p. 49. 
 
 ' Messala ap. Gell. ziii. 15, 4 " Minoribus creatis magistratibus tributis 
 comitiis magistratua, sed Justus curiata datur lege." 
 
 ^ Dio Cass, xzxix. 19. * ib. xli. 43. 
 
 '' Cic. de Leg. Agr. ii. 12, 30 "consuli, si legem curiatam non habet, attingere 
 rem mllitarem non licet." 
 
 ° 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, uecesse non esse ; se, quoniam ex senatus consulto provinciam 
 haberet, lege Cornelia imperium habiturum quoad in urbem introisset " (Cic. ad 
 Fam. i. 9, 26). 
 
 ' Cic. de Leg. Agr. ii. 12, 31. ' p. 26. 
 
 " Gell. XV. 27, 1 "'oalata' comitia esse, quae pro oonlegio pontifioum haben- 
 tur ant regis aut flaminum inaugarandomm causa. Eorum autem alia esse 
 'curiata,' alia 'centuriata'. . , Isdem comitiis, quae ' calata ' appellari diximus. 
 
262 ROMAN PUBLIC LIFE cha.p. 
 
 The comitia centuriata, once known as the "greatest of the 
 comitia " (comitiatus maximiis),^ 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 imperiiim. 
 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.^ The 
 army alone could declare war,* 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.* 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 oi junior es — in a single tribe. 
 Each class thus had two votes in a tribe and seventy votes 
 
 et saororum 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). 
 
 ^ p. 107. ■' pp. 107, 246. = p. 244. 
 
 ^ Liv. i. 43 " Nee mirari oportet huno ordinem, qui nunc est post expletas 
 qulnque et triginta tribus duplicato eaium numero oenturiis juniomm seniorum- 
 que, ad institutam ab Servio Tullio summam non oonvenire. " Cf. Dionys. 
 iv. 21. The description of Cicero (de Rep. iL 22, 39 and 40) probably 
 refers to the Servian arrangement, idihough Mommsen (Staatsr. iii. p. 275) 
 holds that it refers to the reformed comitia. The description given in the 
 text is in essentials that of Pantagathua (died 1667) ap. Ursinum in Liv. i. 43. 
 For the different systems that have been adopted see Willems Le Droit Pvblic 
 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. 
 
V THE PEOPLE AND ITS POWERS 253 
 
 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.^ 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.^ The 
 equites seem still to have had the right of voting first,^ and the 
 first class took precedence of the others ; for the lot which 
 designated the centuria praerogatim * seems to have been cast only 
 amongst the seventy groups of seniores and juniores belonging to 
 this class.^ 
 
 The restoration by Sulla of the older method of voting 
 (88 B.C.) * 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 concilivm plebis, practically the sovereign body of the 
 state, differed from this last assembly in two respects. It could 
 
 » p. 73. 
 
 " (Jic. PM. ii. 33, 82 " Boce Dolabellae comitiorum dies : sortitio praeroga- 
 tivae : quiosoit. Eenuntiatur, tacet. Prima classis vocatur : renuntiatur. 
 Deinde, ita ut assolet, sulfragia ; turn seounda classis." 
 
 ' Liv. xliii. 16 "cum ex duodeoim centuriis equitum ooto censorem oondem- 
 nassent, multaeque aliae primae classis." It would seem as thougli tlie sex 
 svffragia (p. 73) voted with or after the first class. Drakenboroh would read 
 octodecim for duodecim, but this would seem to give too small a number of con- 
 demnators votes amongst the eguitea. * Cic. pro Plane. 20, i9. 
 
 ' Hence such expressions as Aniensis jvmiorum, Veturia jvmorwm, Galena 
 mniorum (Liv. xxiv. 7 ; xxvi. 22 ; xxvii. 6). 
 
 8 App. B.C. i. 59. 
 
254 ROMAN PUBLIC LIFE chap. 
 
 be summoned only by plebeian magistrates and it never included 
 the Patricians.^ Besides issuing universally valid decrees (plebis- 
 cita), 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,^ 
 but, besides instances of its capital jurisdiction at an early 
 period of its history, it continued to possess the unquestioned 
 right of pronouncing outlawry {aqwae et ignis interdictio) against 
 any one already in exile,* 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.* 
 
 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;^ but the old powers of unimpeded legislation 
 were restored in 70 B.c. 'If Sulla also took the right of prose- 
 cution from the tribune,* 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 
 Eepublic. 
 
 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 inter- 
 vention of the comitia. The electoral body was composed of 
 seventeen tribes selected by lot from the thirty-five, and this 
 
 ' See Appendix on the comitia trSmta. 
 
 " p. 107. 
 
 ' Liv. XXV. 4 (212 B.C.) " Tribani plebem rogaverunt plebesque ita soivit, ' Si 
 
 M. Postumius ante K. Maias non prodisset citatusque eo die non respondisset neque 
 
 ■ exousatns asset, videri sum in exilio esse, bonaque ejus venire, ipsi aqua et igui 
 
 plaoere interdioi " ; ib. xxvi. 3 (211 B.C.) " Cn. Fulvius exulatum Tarquinios 
 
 abiit. Id ei justum exilium esse scivit plebs." 
 
 * When Plutarch says (0. Gracch. 4) that C. Graoohus gave the right of trying 
 such cases ti? S'qii.if, this word may include the Plebs. Gracchus at least seems to 
 have banished the ex-consul Popilius by means of a plebiscitiim (Cic. pro Domo 
 31, 82 " ubi enim tnleras ut mihi aqua et igui interdiceretur ? quod Gracchus de 
 P. Popilio . . tulit "). 
 
 '■ App. B.C. i. 59. , 
 
 " This conclusion has been drawn from the words of Cicero {in Yen. Act i. 
 13, 38) "judiciis ad senatorium ordinem translatis sublataque populi Romani in 
 unum quemque vestrum potestate." 
 
V THE PEOPLE AND ITS POWERS 255 
 
 body, which was not the Populus,^ was presided over by a pontiff. ^ 
 This organisation was probably first applied about the middle of 
 the third century B.C. to the creation of the poniifex mcmmus ; 
 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 thet four 
 great guilds of pontiffs, augurs, quindecemvirs, and epulones. 
 The college in question presented, the people elected and gave 
 to the college again a congi cPMire, whereupon the chosen candi- 
 date was solemnly coopted by the members of his guild.^ 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.* 
 
 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 concilivm, 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 nimdinae, the first days of the eight-day week, on which 
 not even a contio could be held,^ 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 cv/riae met within the pomeriwrn, usually in the Comitium 
 on the north-west of the Forum.^ 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 
 
 ' Cio. de Leg. Agr. ii. 7, 18 " Quod populus per religionem sacerdotia maudare 
 non poterat, ut minor pars populi vocaretur." 
 
 ^ For this presidency by the youngest pontifez (the one, i.e., who stood the 
 lea^t chance of election) see Idv. zxt. 5 (212 B.O.). 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. 
 
 3 Cio. de Leg. Agr. ii. 7, 18 j Veil. ii. 12, 3. 
 
 ■• Dio Cass, xxxvii. 37. 
 
 ■^ Macrob. Sat. i. 16, 29 " Julius Caesar XVI auspiciorum libro negat nundinis 
 contionem advocari posse, id est cum populo agi ideoque nundinis Eomanorum 
 haberi comitia non posse." 
 
 * Varro L.L, v. 155 "comitium ab eo quod coibant eu comitiis curiatis et 
 litium causa." 
 
256 ROMAN PUBLIC LIFE chap. 
 
 found in other places such as " the Peteline grove outside the 
 river-gate," and an unknown site called the Ae_seuletum.i 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,^ and since that date the two assemblies 
 of the tribes were held within the first milestone. The open 
 space of the Capitol {area Ca/pitoUi) 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 
 of both 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 conMones, 
 was chosen as the site for the legislation of the tribes.^ 
 
 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,* 
 and describing the nature of the act which he meant to introduce. 
 This promulgation ^ assumed various forms in accordance with 
 the purpose of the projected meeting. In prosecutions it eon:- 
 tained 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 ; ^ 
 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 aerarivm as a guarantee that no 
 amendment was inserted before the people was asked to accept it.' 
 
 ' Liv. vi. 20 ; Plin. R.N. xvi. 10, 37. " Liv. vii. 16. 
 
 ' The change to the Foram is perhaps post-Gracohan ; see Momms. SioMtsr. 
 iii. p. 385. Cf. the prescription of the tec Qwinciia de aquaeducWms (p. 242). 
 
 ^ Gell. xiii. 15, 1 " In edicto consulum, quo edicunt quis dies comitiis centuri- 
 atis futurus sit." "Comitia edicere " (Liv. xxiii. 31) and "oomitia indicere" 
 (Liv. iv. 6) are employed as descriptive of thi.^ act. 
 
 " Pestns p. 224 " promulgari leges diountur cum primum in viilgus eduntur, 
 quasi provulgari." 6 Momms. Staatsr. iii. p. 370. 
 
 ' Schol. Bob. toCic.j?roSesi!. 64, 135 (p. 310) "(iex)Liciniaet Junia . . . illud 
 oavebat 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 
 
V THE PEOPLE AND ITS POWERS 267 
 
 The minimum interval between the promulgation and the 
 meeting was the space of three mmdina, i.e. 24 days, and this 
 condition was as necessary for jurisdiction and elections as for 
 laws.-"- 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 (temphim) which formed the centre of 
 the gathering. Celestial signs alone ^ seem to have been the 
 object of this morning watch; but no such observation was 
 necessary for plebeian gatherings ; they were disturbed only by 
 atbspicia oblativa.^ 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.* This 
 was sufficient for the corrdtia of the tribes.^ For the centuries 
 more elaborate preparations were necessary. Proclamation of 
 the meeting was made from the Eostra, and the red flag flew 
 from the Janicnlum to show that it was guarded while the army 
 was busy in the Campus.* 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.'' 
 
 When the people were assembled the president opened with 
 a prayer,^ and the rogatio was read with the request whether 
 the quirites "will and order it" {'Delitis, jubeaUs). The magis- 
 trate 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.® This discussion always preceded acts of 
 legislation.'^" When the eomitia met for jurisdiction there may 
 
 in 58 B.O. was amended (Cio. ad Att. iii. 2 "praesertim nondum rogatione 
 ocJIreota "), but whether before or after promulgation is not clear. 
 
 ' Dionysius, Plutarch, and Prisoian explain trirmm mmdrnmn as the third 
 market-day, an interval of trmarum mmdinarum, i.e. seventeen days ; but 
 Mommsen has made out a good case for its being three mmdima, i.e. intervals 
 of eight days {Slaatsr. iii. p. 375). ^ p. 164. ^ p_ gg_ 
 
 * Varro L.L. vi. 91 "oomitiatum praeco populum vooet ad te, et eum de 
 muris vocet praeco." 
 
 ' The herald is not mentioned in connexion with the concilium plebis. 
 The eomitia cwnata were summoned by a Uotor cwnatus. See Momms. Staatsr. 
 iii. p. 386. 
 
 « Gell. XV. 27 ; Dio Cass, xxxvii. 27. 
 
 ' Varro L.L. vi. 92 ; Plut. G. Gracah. 3. 
 
 * " SoUemne carmen precationis " (Liv. xxxix. 15). 
 
 ' Cio. de Leg. iii. 4, 11 "qui agent . . . rem populum docento"; Quintil, 
 Inat. Or. ii. 4, 33 " Romanis pro contione suadere ao dissuadere moris fuit." 
 
 " Except perhaps at the eomitia cemtv/riata (Momms. iii. p. 395), but this 
 body had almost ceased to be a legislative assembly. 
 
 S 
 
258 ROMAN PUBLIC LIFE chap. 
 
 have been some debate even in the quarta accusaiio ; ^ it was 
 probably only at elections that it was wholly absent. 
 
 When the discussion was over the emtio was dissolved. 
 Those who had no votes were dismissed from the enclosure ; ^ 
 to those with votes the magistrate said, "Si vobis videtur, 
 discedite, quirites," * 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 Koman 
 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 en- 
 closure, this high gallery being connected with the various 
 voting compartments by separate descending ^orate. 
 
 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 {pwruM).* 
 In legislation the affirmative answer was uti rogas, the negative 
 antiquo ; in jurisdiction acquittal and condemnation were pro- 
 nounced by liiero and damno ; in elections dico and fotcio seem to 
 have been employed.^ 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 
 Odbinia of 139, and for jurisdiction, with the exception of cases 
 of treason (perdwllio), by the lex Cassia of 137. The lex Fapiria 
 of 131 extended the principle to legislation, and finally the fex 
 Caelia of 107 admitted it for cases of treason.* 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.' The tabellae were now 
 
 * p. 247. ^ Originally liaium, later sa^ta or omle. 
 
 ' Lit. ii. 56 ; of. Aso. in Gomel, p. 70 " discedere, quod verbum . . . 
 signifioat . . . [ut] in suam quisque tribum discedat, in qua est suffragium 
 laturns." 
 
 ^ Hence the espression ferre jpundum (Cio. ^o Plane. 22, 53). 
 
 6 Liv. V. 13 ; iii. 21. 
 
 ' Cio. de Leg. ill. co. 1 5, 16. 
 
 ' Hence the discovery of a fraud at an election through tablets being /u^ 
 X^'pi yeypa/i./i.h'ats (Pint. Oat. Min. 46). 
 
V THE PEOPLE AND ITS POWERS 259 
 
 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 rogatwes, but were also spoken 
 of as diribitores.'^ The cistae were watched by public custodes, 
 and in the case of elections the candidates were allowed to 
 place one guardian at each urn.^ 
 
 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.^ In the two former assemblies 
 the order in which the votes of the groups were proclaimed had 
 thus to be decided by lot* The reading (prommtiatio, 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 eomitia 
 cmtitriata 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.^ 
 
 Eecords of the voting were kept for some time in case the 
 decision should be challenged.^ 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.' Little regular 
 
 1 Cio. am. Sen. Gr. eg. 11, 28 ; vti Pis. 15, 36. 
 
 "^ Plin. H.N. xxxiii, 2, 31 ; Cio. cum Sen. Gr. eg. 7, 17. ' p. 253. 
 
 * The first curia or tribe is the prinaipimm. See the presoription of the lex 
 Quinctia (p. 242). Even after the ballot was introduced the name of the first 
 voter in a division was specified {primtts scimt, I.c.). 
 
 ^ Tribus or centarias non expleire is said of such candidates (Liv. iii, 64 ; 
 xxxvii. 47). Of. Liv. xxii. 35. 
 
 * Cio. 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). 
 
 ' Cic. de Leg. iii. 20, 46 "Legum custodiam nuUam habemua. Itaque eaa 
 leges sunt quas apparitores nostri volunt ; a librariis petimus." 
 
260 EOMAN PUBLIC LIFE chap, v 
 
 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.^ 
 
 ' See the evidences collected by Mommsen (Staatsr. iii. pp. 418-419). It is 
 from this practice ihs.tjigere and rejigere are used of the publication and annulling 
 of lav/s. 
 
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 magis- 
 trates 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 
 
262 ROMAN PUBLIC LIFE chap. 
 
 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 explana- 
 tion 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 efiective 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 
 
VI THE SENATE 263 
 
 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 lae 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 
 distingnished 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,^ 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," ^ as the magistrates now tended to become, could find in 
 
 1 p. 219. 
 
 ^ Cio. pro Sest. 65, 137 " senatum reipublioae custodem, praesidem, pro- 
 piignatorem ooUooaverunt (majores) ;■ hujus ordinis anctoritate iiti magistratus et 
 quasi ministros gravissimi consilii esse voluerunt." 
 
264 ROMAN PUBLIC LIFE chap. 
 
 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 Eoman 
 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 coidd 
 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 bafile 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 diflB.culties 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 Eoman 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 every- 
 
VI THE SENATE 265 
 
 thing J the race for honours provided stimuli sufficient — even 
 when the public opinion of his own order failed — to keep a 
 counsellor of Eome up to a high level of eificiency. 
 
 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 Eomans prevented 
 the development of the first, and although within the Senate the 
 grades of rank were clearly marked, and the distinctions between 
 consulares, praetorii, aedilicii and the former holders of lesser 
 magistracies were observed in the order of debate, these designa- 
 tions Were not employed as constant epithets. But the desire 
 of emphasising diflference 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 Eepublic was dis- 
 tinguished 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 rrmlleus), 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, ^ which continued to 
 be worn by the patrician senators in their character of potential 
 kings (interreges).^ 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 clavm — 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 latidami was an invention of the Emperor Augustus.^ 
 
 ' Festus p. 142 " mulleoa genus caloeorum aiunt esse, quibus reges Albanorum 
 primi, deinde patricii sunt usi." 
 
 ^ Hence the distinction between the patrician and plebeian form of shoe 
 (Monunsen Staatsr. iii. p. 891). In the time of Cato the elder this footgear 
 was only worn by the plebeian senator ' ' qui magistratum ourulem cepisset " 
 (Festus 1.0.). 
 
 ' For an investiture of boys with the latus clavus earlier than the rule ol 
 Augustus, see Suet. Aug. 94. 
 
266 ROMAN PUBLIC LIFE chap. 
 
 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 ; ^ 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 censor- 
 ship 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 out- 
 side 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 
 
 ' Tao. Ann. xi. 22 "post lege SuUae viginti (quaestores) creati supplendo 
 seuatui." 
 
n THE SENATE 267 
 
 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 Seoate'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,^ 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 re- 
 versed ; the great political crime of Carthage's destruction was 
 prepared by the famous sententia of Oato,^ 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 
 
 ' Gell. iv. 10, 8 "Erat . . jus senatori ut sententiam rogatus dioeret ante 
 quicquid vellet aliae rei et quoad vellet." For this practice of. egredi rdationem 
 see Tac. Arm. ii. 33. 
 
 2 " Delenda est Carthago " (Floras ii 15) ; of. App. Lib. 69. 
 
268 ROMAN PUBLIC LIFE chap. 
 
 of debate possessed by the Seriate, 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 Eome. 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 tum.^ 
 This system of priority, although necessary to prevent confusion, 
 was under ordinary circumstances a matter of comparative un- 
 importance. 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,^ 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 busi- 
 ness 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 oflfensive relatio already before the house.^ 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.* 
 
 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 
 
 ' An attempt to violate this order was made in 56 B.C., "cum Lupus tribunus 
 pi. . . . intendere coepit ante se oportere discessionem facere quam consules. 
 Ejus orationi vehementer ab omnibus reclamatum est ; erat enim et iniqna et nova" 
 (Cio. ad Fam. i. 2, 2). 
 
 * The consul Marcellus thus dismissed the Senate in 50 B.c. on its favouring 
 the proposal that both Pompeius and Caesai should lay down their commancta 
 (App. B.C. ii. 30). 
 
 ' Gell. iv. 10, 8. * ib. I.e.; Suet. Caes. 20. 
 
VI THE SENATE 269 
 
 power which magistrates had of speaking (verha 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 f) 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 donmlwres 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.^ 
 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.^ From the latter the question 
 passed down through the praetorii to the men of aedilician or 
 
 ^ Gell. xiv. 7, 9 (from the Gomimenta/rms of Varro) "singulos autem debere 
 eonsuli gradatim inoipique a, consulari gradu. Ex quo gradu semper quxdem 
 antea primum rogari solitum qui princeps in senatum leotus esset ; turn autem, 
 cum haeo soriberet, novum morem institutum refert per ambitionem gratlamque 
 ut is primus rogaretur quern rogare vellet qui haberet senatum, dum is tamen ex 
 gradu consulari esset." For this novus mos of. Cio. ad Att. i. 13, 2 (61 B.o.) 
 "Primum igitur soito primum me non esse rogatum sententiam praepositumque 
 esse nobis paoifioatorem AUobrogum " (0. Calpumius Piso, a relative of the pre- 
 siding consul). 
 
 - Sail. Cat. 50 (iu the debate on the Catilinarian conspiirators) "D. Jiinius 
 Silanns primus sententiam rogatus quod eo tempore consul designatus erat." 
 
270 ROMAN PUBLIC LIFE chap. 
 
 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 anti- 
 quarians that the pedarii were given the right of voting but not 
 the power of debate.^ But restrictions of this kind, arising from 
 practice and not from law, were never pressed by the Eomans. 
 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. ^ 
 
 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 senteniiae to 
 the vote as had been observed in eliciting them ; but out of an 
 aggregate of opinions that, with difi^erences 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 
 
 • Festus p. 210 " (Pedarius senator) ita appellatur quia tacitus transeundo ad 
 eum, cujus sententiam probat, quid sentiat indioat." Cf. Gell. ili. 18. Tlie 
 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. I.e.). 
 
 ^ Veil. ii. 35 "Hie tribunus plebis designatus . . . paene inter ultimos 
 interrogatus sententiam"; Cic. ad Alt. xii. 21, 1 "Cur ergo in sententiam 
 Catonis ? Quia verbis luculentioribus et pluribus rem eandem (i.e. the opinion 
 already expressed by conmla/ns) comprehenderat," 
 
VI THE SENATE 271 
 
 63 B.C., Cicero put to the vote the sententia of Cato in place of 
 the similar but weaker resolutions of the consulares ; '^ 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 Eoman 
 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 adjourn- 
 ment 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. 2 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,^ and it was not unusual to leave one's bench and take 
 up a position near the man whose opinion one supported.* 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) ; ^ even then it is improbable that recourse 
 
 1 See p. 270 n. 2. 
 
 ^ 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, 6). On Curio's proposal in 
 50 B.O. that both Pompeius and Caesar should lay down their commands, 22 
 dissented, 370 approved (App. B.G. 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. 
 
 ' " Verbo adsentiri " (Sail. Oat. 52) ; of. Cic. ad Fam. v. 2, 9 " sedens iis 
 adsensi." 
 
 * "In alienam sententiam peilibus ire" (Gell. iii. 18, 1). 
 
 " The invitation to divide on the sententia was couched in the form "Qui hoc 
 censetis, illuc transite : qui alia omnia, in banc 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). 
 
272 ROMAN PUBLIC LIFE chap. 
 
 was had to counting, unless the parties on either side were very 
 evenly balanced. Other reasons for rapidity were to be found 
 in the Eoman temperament and in the intellectual atmosphere 
 of the house. The Eoman, until his better nature was cor- 
 rupted by the schools of Athens and Khodes, 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 ^ were still in all probability the exception and not the 
 rule. 
 
 The voice of the majority of the Senate was embodied in a 
 resolution {serudus consuUum). 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,^ 
 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 audorUas merely.* 
 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 audoritas was drawn up at 
 the place of meeting soon after the resolution which it embodied 
 had been gassed. As there were no permanent oflieials of a 
 responsible character to see to its redaction, a small committee 
 was appointed by the president to attest the genuineness of the 
 document;* this consisted usually of the author of the resolu- 
 tion and of some of his supporters. 
 
 (iii.) The Senate exerted its developed authority under 
 
 ^ Cic. ad Att. L 14, 3 "totum hunc locum, quem ego . . . soleo pingere, de 
 flamma, de ferro — nosti illas XriKiSovs." 
 
 2 p. 179. 
 
 8 Cic. ad Fam. viii. 8, 5 ff. In § 6 we find the formula " Si quis huio s. o. 
 intercesserit, senatui placere auctoritatem perscribi." 
 
 ■■ ib. I.e. § 6 "Pr. Kal. Octobrea in aede Acollinis scrib. adfuerunt L. Domitius 
 Cn. f. Fab. Ahenobarbus," etc. 
 
VI THE SENATE 273 
 
 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 direc- 
 tions 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 inde- 
 pendence is far less than that possessed by such a body as the 
 Athenian BmU. 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 Eepublic the 
 motive power had to spring ultimately from a magistrate of the 
 Plebs.i 
 
 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 Eoman 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. 
 
 » p. 148. 
 T 
 
274 ROMAN PUBLIC LIFE chap 
 
 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 tp 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 : ^ 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.^ 
 
 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 unsystem- 
 atic 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. 
 
 1 Plut. Ti. Gracch. 10 ; App. B.C. i. 12. 
 
 " Polyb. XXX. 4. For tte motive of the veto see Liv. xlv. 21 "M. Juventius 
 Thalna . . . praetor novo maloque exemplo rem ingressus erat, quod, ante non 
 eonsulto senatu, non consulibus oertioribus faotis, de sua unias sententia rogationem 
 ferret vellent juberentne Ehodiis bellnm indioi, cum antea semper prius senatus 
 de bello consultus esset, deinde ex auotoritate patrum ad populum latum. " 
 
VI THE SENATE 276 
 
 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 
 oflSce. 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,^ and Caelius Eufus was ejected, 
 on the allegation of similar misconduct, from the curule chair of 
 the praetor in 48.^ 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 patrwm 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 ; ^ it might even infringe so much on the freedom of 
 contract as to suggest a current rate of interest* — 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 
 
 ^ Suet. Cues. 16 (Caesar supported Metellus in carrying) " turbulentissimas 
 leges adversus oollegarum interoessionem . , . doneo ambo administratione 
 reipuWioae deoreto patrum snbmoverentur." 
 
 ^ In this case the prohibition was effected through the coercive power of the 
 consul springing from his maJUB mperium (Dio Cass. xlii. 23). 
 
 ' Tao. Arm. ii. 30 "vetere senatus consulto quaestio in caput domini 
 prohibebatuv." 
 
 * Cic. ad Att. v. 21, 13 (50 B.C.) "cum senatus oonsultum modo factum sit . . 
 in creditorum causa, ut centesiniae perpetuo faenore ducerentur." 
 
276 ROMAN PUBLIC LIFE chap. 
 
 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 con- 
 sidered 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. ^ 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.^ 
 
 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 pro- 
 nounced 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 enact- 
 ment, 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 
 
 * Ascon. in Cornel, p. 58. 
 
 ^ M. Brutus had gained from the Senate the validation of a bond {syTigrapha), 
 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 Kome, had been rendered illegal by u lex Qdbinia of 67 B.f, 
 (Cio. ad Alt. v. 21, 12). 
 
VI THE SENATE ^1) 
 
 once led to the greatest upheaval that Eoman history records. 
 It was by pointing out that the law of the younger Livius 
 Drusus, associated with his proposal to grant the civitas to 
 the allies, was irregular as contravening the condition fixed 
 by a lex Caecilia Didia (98 B.C.) that wholly different enact- 
 ments should not be contained in the same rogaiio,^ 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.^ 
 
 When we turn from legislation to its complement of juris- 
 diction we find little direct interference by the Senate with the 
 regular course of either civil or criminal procedure. On excep- 
 tional occasions it might decide the sphere of the praetor's 
 activity,* 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 deter- 
 mining 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.* 
 
 ' Cic. pro Domo 16, 41 "judioavit senatus M. Drusi legibus, quae contra 
 legem Caeoiliam et Didiam latae essent, populum non teneri." The account that 
 the Livian laws were shelved as contra auspicia (Asoon. in Gomel, 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. 
 
 ' Cic. ad Att. iii. 15, 5 " Quod te cum Culleone scribis de privilegio locutum, 
 est aliquid, sed multo est melius abrogari." 
 
 8 p. 204. 
 
 * Liv. XXV. 4 ; Sail. Gat. 50 ; Ascon. in Milan, p. 44. The Senate in this 
 way sometimes interprets a criminal law and extends its incidence. See Cic. de 
 Hair. 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 oppugnasseut (i.e. vi publica] teneri. " 
 
m EOMAK PUBLIC LIFE chap. 
 
 With respect to an extraordinary commission, the true theory of 
 the Eepublic 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.^ 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 th« Senate is the 
 directing and controlling force. Such an exercise of magisterial 
 coerdtio 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 Eepublic 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 responsi- 
 bility 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 1 70 
 women put to death for poisoning in 331 B.c.2 were executed 
 by magisterial decree, the act was legal, for women had no right 
 of appeal. Similar legality attended its exercise over pro- 
 vincials ; ^ and, if similar sentences were inflicted on Italian 
 
 ' Cic. ad Att. 1. 13, 3 "Credo enim te audisse, cum apud Caesarem pro 
 populo fieret, venisse eo muliebri vestitu virum . . . mentiouem a Q. Cornificio in 
 senatu factam . . postea rem ex senatus consulto ad pontiflces relatam, idque ab iis 
 nefas esse deoretum ; deinde ex senatus consulto consules rogationem promulgasse." 
 
 ' liv. viii. 18. 
 
 ' ib. xl. 43 (180 B.O.) "A. C. M&enio praetore (cui, provinoia Sardinia cum 
 
VI THE SENATE 279 
 
 allies,^ it was a gross violation of treaty obligations, but not of 
 the laws of Eome. The male citizen alone might not be put to 
 death in this summary fashion ; and if the Eoman members of 
 the great criminal society of the Bacchanalian guild were executed 
 without appeal,^ 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,"* but the decree does not by its wording 
 suspend the ordinary laws of appeal. 
 
 This guardianship of the state against conspiracies {coty'wa- 
 tiones) may have been the precedent for a power, the legality of 
 which, as exercised by the Senate durifig 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 crroo-ts, of singling out a party in the state and its 
 leaders as enemies (hostes) to the Republic, the latter being pro- 
 fessedly 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 invpervwm, 
 and sometimes even the pro-magistrates,* 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 m/perium) should see 
 that the state took no harm." ^ After the passing of this decree 
 
 evenisset, additum erat ut quaereret de veneficiis longius ab urbe decern 
 millibus passuum) literae adlatae sejam tria miJMa hom/i/nvm damnasse." 
 
 ^ Liv. xxxix. 41 (184 B.O.) ; cf.ix. 26 (314 B.C.) and the instance cited 
 in the next note. In such instances of guaestiones extended to Italy, it is not 
 clear whether socii as well as cives were executed summarily by Boman 
 magistrates. 
 
 * ib. xxxix. 18. On this point see Zumpt Orim/mcJ/recM der Rmner i. 2 p. 212. 
 ' G.I.L. i. n. 196 (a letter from the consuls to some unknown magistrates of 
 
 the ager Temranus in Brutii) 1. 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.' " 
 
 * The consul was armed against C. Gracchus, the consuls in 63 ; the consuls, 
 praetors, and tribunes in 100 B.o. ; the interrex, proconsul, and all other magis- 
 trates with vnype/riMm in 77 B.C. 
 
 " The decree proposed to meet the threatened revolution of M. Lepidus in 
 77 B.0, ran as follows : " quouiam M. Lepidus exercitum privato consilio paratum 
 
280 ROMAN PUBLIC LIFE chap. 
 
 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.^ 
 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, how- 
 ever grave the danger. A state of war must be recognised, 
 
 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 detriment! 
 capiat" (from speech of Philippus in Sail. 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 Satuminus (100), the first Sullan 
 restoration (88), by the anti-Sullans (82), at the threateneit 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). 
 
 ' Cf. Sail. Gat. 50 " consul . . . convocato senatu refert quid de eis fieri 
 placeat, qui in custodiam traditi erant. Sed eos paulo ante frequens senatus 
 judicaverat contra rem publicam fecisse." 
 
VI THE SENATE 281 
 
 but there was no power in the Eoman 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.^ 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." ^ But it is 
 possible that it made senators individually responsible for the 
 decree authorising such conduct on the part of the magistrates,^ 
 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.* Henceforth there could be no 
 question of the illegality of the ultimum senatus consuUum, 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,^ 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 con- 
 
 ' Although the vltimv/m senatus eonsuliwm had not been passed against Ti. 
 Gracchus, the condemnation of his adherents without appeal (Veil. ii. 7 ; Val. 
 Max. iv. 7, 1) was the exercise of the jurisdiction of martial law. It was this 
 jurisdiction which elicited the plebisdtwn of C. Gracchus. 
 
 ' Cic. ^0 Rab. i, 12 "C. Gracchus legem tulit ne de capite civium Eoman- 
 orum injussu vestro judicaretur." 
 
 ' Schol. Ambros. p. 370 " Quia sententiam (wrongly for "legem " ; see Zumpt 
 Cfriminalrec/U i. 2 p. 73) tulerat Gracchus ne quis in civem Bomanum capitalem 
 sententiam diceret. " Of. Cic. pro Sest. 28, 61 " Consule me, (Cato), cum esset 
 designatus tribunus plebis, obtulit in discrimen vitam suam : dixit earn sententiam, 
 cujus invidiam capitis perieulo sibi praestandam videbat." So Dio Cassius 
 (xxxviii. 14), in speaking of the first bill of Clodius against Cicero, says l^cpe /iiv 
 yet/) Kal iwl iraaav tV /SouXiji', Sri Tois re iTrdrois rrjc ^v\aK^v t^s iriXeus . . . 
 
 Trpoffererix^'- 
 
 * Plut. G. Gracch. 4 rbv di (ci/tov el<r4<pepe), et ns dpx'^" S,icpiTov iKKeatipixoi. 
 voKIttjv, ko.t' aiiTov Sid6vTa Kplffiv rip S-fiiup. Sij/iws here may mean eitheipopidus 
 or plebs ; but Gracchus, as tribune, put his own law into force against Popilius 
 (Cic. pro Domo 31, 82). 
 
 " Cic. in Cat. iv. 5, 10 "At vero C. Caesar intelligit legem Semproniam esse 
 de eivibus Eomanis constitutam ; qui autem rei publicae sit hostis eum oivem esse 
 auUo modo posse." 
 
282 ROMAN PUBLIC LIFE chap. 
 
 sidered 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 
 Eome, except through the medium of a magistrate, the ancient 
 trade guilds (collegia artificvm) 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 ; ^ 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.^ 
 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." 
 
 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 
 
 1 Cio. in Pis. i, 9 ; pro Sest. 25, 55 ; Dio Cass, xxxviii. 13. 
 
 ^ CSc. ad Q.fr. ii. 3, 5 (56 B.C.) " senatus consultum factum est ut sodalitates 
 decuriatique disoederent lexque de iis feiretur ut, qui non disoessissent, ea poena 
 quae est de vi tenerentur." The sodalitates were clubs of the type of the Greek 
 iraipSai, the deewriati probably electioneering associations. 
 
 ^ Cic. ad Att. i. 16, 12 (61 B.O.) " senatus consulta duo jam facta sunt odiosa 
 . . . unum, ut apud magi'stratus inquiri lioeret, alterum, cujus domi dirisores 
 habitarcnt, adversus rem publicam." 
 
v-i THE SENATE 283 
 
 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 dis- 
 avow 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.^ But the 
 opmion finally prevailed that without the consent of the Senate 
 and the people no' sworn treaty (foedus) could be binding.^ 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,^ 
 but the close of Republican history shows cases where the 
 Senate alone is mentioned as the deciding authority.* 
 
 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 
 
 1 Liv. ix. 8-12 ; Plut. Ti. Oracch. 7 ; Cio. de Off. iii. 30, 109 ; Sail. Jug. 39. 
 ' Sail. Jug. 39 " seuatus ita, uti par fnerat, decernlt suo atque populi injussu 
 nullum potuisse foedus fieri." 
 
 * Polyb. vi. 14 iirkp elp^vri^ oStos {6 Stj/ws) /SouXciierai Kal iro\4/iov. Kal iiAiv 
 Tepl (Tu/i/iox^as Kal SioMireus Kal avvSufKCiv t^lis i&riv 6 ^e^aiQiv iKaara Toiriav 
 Kal K6pia iroiujjf fl roivavTiov. 
 
 * The Gaditani approach the Senate for the renovation of a treaty made with 
 a pro-magistrate in 78 KO. 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 tg its right. 
 
284 ROMAN PUBLIC LIFE Chap. 
 
 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 Eome, 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.^ The representatives of the enemy, on the other hand, 
 had no claim to reception within the walls.^ The embarrass- 
 ment 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 Eome in person.^ Towards the close of the Re- 
 publican 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 Eome with the political coteries, caused a 
 law to be passed that the month of February should be devoted 
 to the reception of legations.* As most of the envoys at this 
 time came from states within the Eoman 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.® The whole 
 work of organisation, known as the law of the province {lex 
 provincias), bore the name of the imperator, and the lex Eupilia of 
 Sicily, the lex Pompeia, of Bithynia, and the law of Metellus in 
 Crete preserved the memory of individual victors and organisers. 
 
 ^ Hence the institution of the Graecostasis. Varro (Z.i. v. 155) describes it 
 as " sub dextra hujus (the Eostra) a comitio locus substructus ubi nationum sub- 
 sistereut legati, qui ad senatum essent missi ; is Graecostasis appellatua a parte 
 ut multa." 
 
 ^ So the Numantian envoys in 36 B.o. are received ?JwtoC relxom (Dio/r. 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. 1160. 
 
 * Liv. Ep. xlvi. "in commune lex lata est ne cui regi Eomam venire liceret." 
 Cf. Polyb. XXX. 17. 
 
 * Cic. ad Q. fr. il. 13, 3 "Appius interpretatur . . . quod Gabinia sanctum 
 sit, etiam cogi ex Kal. Febr. usque ad Kal. Mart, legatis senatum quotidie dare,"' 
 
 ' Polyb. xxii. 24 ; Liv. xlv. 17. 
 
VI THE SENATE 285 
 
 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,^ and the lot (sortitio) by which the individual holders 
 were determined was often tampered with.^ 
 
 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.* 
 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.* 
 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 com- 
 mittee in the form of a consilivm composed of his legates and of 
 any senator who happened to be in the province.^ It was 
 
 ^ For the attempt made by the lex Seinproma to ohviate this power see p. 201. 
 
 '' Cio. 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 insoiente esse factum." Cf. ad Att. i. 16, 8. 
 
 ' Liv. xlv. 13 ; Dittenherger 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). 
 
 * lex de Termessibus ii. 6 "Nei quis magistratus . . . meilites . . . intro- 
 ducito . . . nisei senatus nominatim . . . decreverit." 
 
 ° Sail. Jug. 62 "Metellus propere cunotos senatorii ordinis ex hibernis 
 aocersi jubet : eorum et alionim, quos idoneos duoebat, consilium habet." Cf 
 
286 ROMAN PUBLIC LIFE ohap, 
 
 his duty to refer every important matter to this ccuncil, and 
 the most important questions it bade him reserve for the judg- 
 ment of the Senate at home.^ 
 
 The power of the purse, which has been the guarantee of so 
 many popular liberties, was not possessed by the people at 
 Eome. 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.^ 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 ex- 
 penditure 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 Eepublic 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 provineiae. 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.* 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,* struck at one of the most undisputed of 
 senatorial prerogatives. 
 
 The most important estimates of those items of revenue and 
 
 0. 104 "Marius . . . SuUam (the quaestor) ab Utica venire jubet, item L. 
 BeUienum praetorem, praeterea omnes nndique senatorii ordinis, quibuscum 
 mandata Bocchi cognoscit." 
 
 ' Cio. ad Alt. 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 rejeoisse." 
 
 2 Cic. de Off. ii. 22, 76 "tantum in aerarium pecuniae invexit (Paulus) ut 
 unius imperatoris praeda finem attulerit tributorum." Cf. Plut. Paul. 38. 
 
 * Momms. Staatsr. iii. 2 pp. 1112-20. 
 ^* Plut. Ti. Gracch. 14 oiSkv (tjyri tj avyKK-lp-if povXeieixBai, -n-poff-qKuv, dXXc* 
 
VI THE SENATE 287 
 
 expenditure which varied from time to time were, as we have 
 seen,i made every five years by the censors. But the Senate 
 exercised the right of directing, even of reversing, the arrange- 
 ments made by these ofiicials ; the appeal against an oppressive 
 contract was made to them,^ and during the vacancy in the 
 censorship they designated the magistrates who were to preside 
 over new financial assignments.^ 
 
 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 
 consuUum de pr.ovinciis ornandis* 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 * or 
 credited by the quaestors to the commanders abroad or to the 
 home officials.^ We have already seen that it was only the 
 consul who could order the quaestors to pay without a permit 
 from the Senate ; ^ 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 depart- 
 ments 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 
 
 1 p. 229. 
 
 ^ The Senate iavalidated the locaiiones 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 puUicani of Asia 
 to remit their contracts in 60 B.C. (Cic. ad Att. i. 17, 9 ; of. ii. 1, 8). 
 
 ^ The business of draining the Pomptine marshes is entrusted to n, consul 
 (Liv. Ep. zlvi.), the building of an aqueduct to a praetor (Frontin. de Aquaed. 7). 
 
 * CSc. ad Att. iii. 24. 
 
 ' This was necessary when the supplies were destined for the army. See Sail. 
 Jug. 104 "(Eufxis) qui quaestor stipendium in Africam portaverat." Compare 
 the section on provincial government. 
 
 ' The phrase for opening this credit is attrCbtiere. See Liv. xliv. 16 "ad 
 opera publics facienda cum eis (censoribns) dimidium ex veotigalibus ejus anni 
 (169 B.C.) attributum ex senatus consulto a quaestoribus esset." ' p. 194. 
 
288 ROMAN PUBLIC LIFE chap, vi 
 
 of Egypt could be staved off by a few lines on these mysterious 
 leaves,^ 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),'^ 
 while the successful general was dependent on its will for the 
 duration of the thanksgivings (sujpplicationes) which followed his 
 victory.^ The reception of a new god into the Roman Pantheon 
 was probably in strict law a popular right,* but it is one that 
 seems to have been tacitly conceded to the Senate.* 
 
 ' Cio. ad Fam. i. 1 sq. 
 
 '^ Cic. ad Q. fr. ii. 6, 4 and 5 (56 b.o.) "consul est egregius Lentulus . . . 
 Dies comitiales exemit omnes. Nam etiam Latinae instaurantur : neo tamen 
 deerant supplioationes. Sic legibus perniciosissimis obsistitur." 
 
 ^ In the later RepubUo these periods of thanksgiving had reached the in- 
 ordinate length of fifteen, twenty, and even fifty days (Caes. Bdl. Gall. ii. 35 ; 
 iv. 38 ; Cio. 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 triumph! praerogativam putas 
 supplicationem et idcirco casum potius quam te laudari mavis, neque supplica- 
 tionem sequitur semper triumphns," etc.). 
 
 * Cic. pro Dcnno 49, 127 "video . . . esse legem veterem tribuniciam quae 
 vetat injussu plebis aedes, terram, aram oonsecrari." The jussusplebis probably 
 implies that of the popvlus as well. See Momms. Staatsr. iii. 2 p. 1050. 
 
 ^ The Senate alone is mentioned as decreeing the reception of the Magna 
 Matffr in 205 B.C., and as ordaining the erection of her temple (Liv. xxix. 10 tmd 
 11 ; xxxvi. 36). 
 
OHAPTEE 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 con- 
 centrated life was a closeness of international ties between the 
 federated members which stood in marked contrast to the vague- 
 ness 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 senti- 
 ment 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 
 
 u 
 
290 ROMAN PUBLIC LIFE chap. 
 
 closer ties of an international character than those which bound 
 each to the Etruscan, the lapygian, 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, 
 E(?me 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 for- 
 gotten; 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 
 Petioles, the priestly ambassadors (oratores) ^ who demand repara- 
 tion, 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 
 Eomani). 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 magis- 
 trate within the walls. Thirty days were allowed for the reply , 
 
 ' See p. 56. 
 
VII THE INTERNATIONAL RELATIONS OF ROME 291 
 
 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 
 olfender, with words setting forth the menace of war.^ 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 {JvipUer lapis).^ 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.^ The neutrality of 
 ambassadors was exacted with equal care, and the disaster of the 
 AUia might be looked on as a retribution for the impious pre- 
 cipitancy of the Fabii who, forgetting their sacred character, 
 fought in the ranks of Clusium against the Celtic hordes.* 
 
 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 agree- 
 ment (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 con- 
 science of the people, unless the man who had caused the people 
 
 1 Dionyg. ii. 72 ; Liv. i. 32 ; of. Plin. U.N. xxii. 2. 
 
 ^ 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 " (Straohan-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. 
 
 ' Liv. iv. 17 ; Middleton Ancient Rome i. p. 245. * Liv. v. 36, 
 
2a2 EOMAN PUBLIC LIFE chap. 
 
 unwittingly to sin was offered up as an atoning sacrifice. 
 Naked and bound, like the sacrificial human victim of pre- 
 historic 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 ^ — refused to take 
 the worthless gift from the hands of the pater patratus, and pre- 
 ferred 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 en- 
 forced 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.^ 
 
 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) ^ and friends (amid), 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.* 
 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 
 
 1 See p. 283. 
 
 2 Liv. xxu. 61. 
 
 ' Varro L.L. v. 3 " multa verba aliud nunc osteudunt, aliud ante significa- 
 bant, ut hostis : nam turn eo verbo dioebant peregrinnra qui suis legibns uteretur 
 nunc diount eum qnem turn dicebant perduellem." Cf. Cio. de Off i 12 37 
 
 4 p. 284. 
 
VII THE INTERNATIONAL RELATIONS OF ROME 293 
 
 to the vaguest association as well as to the closest alliance with 
 Rome ; it was indifferently a symbol of the greatest independ- 
 ence or of the practical subjection of the contracting state. 
 The members of the military symmachy in Italy could share 
 this title with distant Carthage,^ and even the barbarous Aedui 
 are "kinsmen and brothers" of the Eoman people.^ Even 
 in the case of these communities the perpetual representation of 
 mutual interests by means of permanent ambassadors — an insti- 
 tution 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.^ 
 
 Closer relations between Eome and her "friends" were 
 generally conditioned by ethnic and their corresponding 
 religious ties. But the foreign element in early Eome 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 Eome 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.* 
 
 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 Eoman history, to the development both of common courts 
 and of a common code. 
 
 In the later Eepublic 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 reawperatores a purely Eoman source j^ 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 
 
 ' Polyb. iii. 22. 
 
 ^ " Aeduos, fratres consanguineosque saepe numero a senatu appellatos" (Caes. 
 B.G. i. 33). 
 
 ' Cf. p. 284 for this rule and for the exception to it made in 166 b.o. . 
 
 * 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). 
 
 " Hartmann (0. E.) Der ordo judiciorum und die judicia extraordinaria den 
 R»mer Thl. i. pp. 229 ff. 
 
294 EOMAN PUBLIC LIFE OHAr. 
 
 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.^ 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 mandpafio, when ownership could 
 be acquired by the simple transfer (iradUio) known of all nations ; 
 none would care to repeat a formula (to be learnt only of the 
 Roman pontiflf), 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 Chaloidian 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 
 
 ' Festus p. 274 " Eeciperatio est, ut ait Galliis Aelius, cum inter populnm et 
 reges nationesque et civitates peregrinas lex oonvenit quomodo per reciperatoves 
 reddantur res reciperenturque resqiie privatas inter se persequantur." See Keller 
 Oarilprocess p. 36 ; Rudoril Rechtsgesckichte ii. p. 34. 
 
VII THE INTERNATIONAL RELATIONS OF ROME 295 
 
 noticed how for more than a century the same civil judge 
 administered both laws, that of the state and that of the gentes,^ 
 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 IcroiroXiTda, 
 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 
 eonubivm carried with it the patria potestas and all the family 
 rights that flowed from this power ; the cowmerdv/m allowed the 
 citizen of the contracting state to own Eoman land, to convey 
 property by Boman forms, to make a contract by the ceremonial 
 of the sponsio, to inherit from a Eoman 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 j 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.^ 
 
 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 
 
 1 p. 207. 
 
 ■■' In the treaty supposed to be the work of Spurius Cassius and to date from 
 493 B.C. the following clause was found : tuv t' ISioiTiKuy ffv/ipoXaluv al xplaeis 
 hi ijfi^pais ytr/viffduaav MKa^ Trap' oXs hv y^vTjTcu tri ffvfjL^6\atojf (Dionys. 
 vi. 96). 
 
296 ROMAN PUBLIC LIFE chap. 
 
 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.^ 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.^ But 
 the closest bond was that of ta-mrokiTda,^ the mutual participar 
 tion in eommerciwm 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.* 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.^ 
 
 To this association a third factor was soon added in the 
 Hernican league.^ 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. 
 
 ^ Dionys. iii. 34, 51. 
 
 ^ ib, vi. 95 ; Festus p. 241. 
 
 ' Dionys. viii. 70, 74. * p. 295. 
 
 " App.B.a.i. 23. Dionysius (vui. 72) speaks of the Latins and Hernicans exercis- 
 ing voting priyileges (^ri^o(popla) in Rome in the year 486 B.C. But it is impossible 
 that they could have heen enrolled in the centuries, which was a Roman army 
 list, and no assembly of the tribes had yet received state recognition. 
 
 ' Dionys. viii. 69, 72, 74. 
 
VII THE INTERNATIONAL RELATIONS OF ROME 297 
 
 They boasted the same reciprocity of private rights with Eome, 
 they shared in a third part of the spoils of war, and they joined 
 with Romans and Latins in th« 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 
 Laiinae), 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 Yolscian, 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 Eome (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 
 Eome, 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 seven- 
 teen 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 Eoman 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 
 
298 ROMAN PUBLIC LIFE chap. 
 
 were forced, as a penal measure, to accept the full or partial 
 Koman citizenship. ^ 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 Eome'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 (jvs conubii et 
 coTmnercii) was permitted between the cities.^ But how to deal 
 with the individual communities was a far harder problem. 
 The incorporation which had been the punishment of isolated 
 
 ' Livy, by attributing eimtas to Tusoulum (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 munidpium, the name it bears later (" muni- 
 cipium antiquissimum " Cicjpro Plane. 8, 19). Festus, however (p. 127), includes 
 Tusculum amongst the states with eimias sine suffragio, i.e. amongst the true 
 municipia, and we know that Livy (x. 1) uses eivitas for civitas Mne suffragio. 
 The Satricani are cives Romani in 319 B.C. (Liv. ix. 16). Satrioum had formerly 
 belonged to the thirty Latin cities (Dionys. v. 61). 
 
 ^ Liv. viii. 14 "Ceteris Latinis populis (i.e. other than those with whom 
 special arrangements were made) conubia commerciaque et concilia inter se 
 ademerunt." 
 
VII THE INTERNATIONAL RELATIONS OF ROME 299 
 
 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 Eoman 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 Hernioi. 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. ^ 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 Eome's 
 supremacy by every nation south of the Macra and the Eubicon. 
 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 Ehegium 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 (eives) and those of allies (socii) 
 of Eome. The first class (far the smaller numerically) repre- 
 sented the earlier effort at incorporation ; the second was the 
 
 ' Liv. ix. 43 " Hernicorum tribus populis, Aletrinati, Verulano, Ferentinati, 
 quia maluerunt quam oivitatem, suae leges redditae ; oonubiumque inter ipsos, 
 quod aliquamdiu soli Hernicorum habuerunt, permissum. Anagninis, quique 
 anna Bomanis intulerant, civitas sine suifragii latione data : concilia conubiaque 
 adempta, et magistratibns, praeterquam sacrorum curatione, iuterdictum." 
 
300 ROMAN PUBLIC LIFE chap. 
 
 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 Eoman lawyer, as it is to us, in his path 
 through the labyrinth of the complex organisation of Italy. 
 
 The cives of Eome bear this name either in a full or a partial 
 sense ; they may be citizens with voting rights or citizens in 
 private law alone {awes sine suffragio). If we fix our attention 
 on the first of these classes, we find that historically there were 
 two modes in which the dvitas 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 Eoman colony. The merging of some of the Latin communities 
 in Eome ^ has already furnished instances of the former mode 
 of conferment ; the Eoman colonies which illustrate the second 
 {coloniae civiwm Eomanorum) 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^ 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 diledus. In military array, with standards flying,^ 
 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 Eome. 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 pomerivm of the state, 
 only staying the furrow where the gates of the city were to be.* 
 The greater number of these settlements of Eoman citizens were 
 for the protection of the Italian coasts, and the members of the 
 
 ^ p. 299. " Dionys. vii. 13 ; Plut. Oar. 13. 
 
 ' Hyginns p. 176 "oum signis et aquila et primis ordinibus ao tribunis de- 
 ducebantur " ; Tao. Arm. xiv. 27 "non enim, ut olim, universae legiones dedace- 
 bantur cum tribunis et centurionibus et sui cujnsque ordinis militibus." 
 
 * Varro L.L. v. 143 ; Serv. ad Aen. v. 765. 
 
VII THE INTERNATIONAL RELATIONS OF ROME 301 
 
 maritime colonies (coloniae maritimae) were allowed exemption 
 from active military service.''^ 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 magis- 
 trates 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 magis- 
 trates 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 repre- 
 sentatives. 
 
 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 la-on-oXiTeia, but not of the closer 
 bond of avinroXiTeia ; 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 in- 
 dependence of the civis, was always maintained in "international 
 relations with states of the outer world.^ 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 wrbanus. 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 con- 
 sisted of a single man, and where this individual was prohibited 
 by law from leaving the city for more than ten days during his 
 
 ^ Liv. xxvii. 38 (207 B.C.) "oolonos etiam maritimos, qui sacrosanctam vaca- 
 tionem dicebantur habere, dare milites cogebant"; xxxvi. 3 (191 B.C.) "con- 
 tentio orta cum colonis maritimis . , . nam, cum oogerentur in classem, tribxinos 
 plebei appellarunt." 
 
 '^ Cic. pro Dalbo 11, 28 ; pro Caec. 34, 100. 
 
302 ROMAN PUBLIC LIFE chap. 
 
 year of office.^ The only alternative was furnished by the 
 favourite Roman device of delegation. The praetor nominated 
 praefects for jurisdiction {praefedi 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 praefedurae? 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 praefedwrae 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, 
 judida 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, 
 ioT jurisdiciio 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 ofience, 
 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 provo- 
 catio could legally be made. 
 
 The second type of cives are those without the right of 
 suflTrage (sine suffragio). There can be little question that the 
 
 1 p. 203. 
 
 ^ Festus p. 233 " Praefecturae eae appellabantur in Italia, in quibus et jus 
 dicebatur et nnndinae agebautur ; et erat quaedam earum res publioa, neque 
 tamen magistratus suos habebant ; in quas legibus praefecti mittebantur quod- 
 annis, qui jus dioerent. Quarum genera fuerunt duo : alterum, in quas solebant 
 ire praefecti quattuor, [qui] vigiuti sex virum numero populi suffragio creati erant 
 . . . alterum, in quas ibant quos praetor urbanus quodannis in qiiaeque loca 
 miserat legibus." Amongst the pi-aqfecturae which he enumerates are the Roman 
 colonies of Volturnum, Liternum, Puteoli, and Saturnia. 
 
vn THE INTERNATIONAL RELATIONS OF ROME 303 
 
 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 Eome. After the 
 dissolution of the Latin league in 338 B.C. a group of Campanian 
 townships, Capua, Cumae, Atella, and Oalatia, were with (the 
 then Latin) Fundi and Formiae brought into this relation with 
 the now dominant city of Latium ; ^ others nearer home, such 
 as Arpinum of the Volsci, were similarly rewarded or absorbed 
 (303 B.c.),^ while the state was imposed as a means of degrading 
 and reducing to impotence rebellious townships such as Anagnia, 
 the leading city of the Hernici.^ 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 Eome. 
 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 mvnicvpiwm. The name of this type of 
 citizen — the " taker up of burdens " — aptly expresses his 
 subjection to the chief duties {mwnera) 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 oflBce ; * 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 mwnic&ps possesses conmwrdum 
 
 ^ Liv. viii. 14 "Campanis . . . Fundanisque et Formianis . . . eivitas sine 
 sufiragio data. Cumanos Suessulanosque ejusdem juris oonditionisque, oujus 
 Capuam, esse placuit." For Atella and Calatia see Festus pp. 131, 233. 
 
 ^ Liv. X. 1. * ib. ix. 43, quoted p. 299. 
 
 * Festus p. 131 "municipes erant qui ex aliis civitatibus Eoniam venissent, 
 quibua non licebat magistratum capere sed tantum muneris partem, ut fuerunt 
 Cumani, Aoerrani, Atellani, qui et cives Eomani erant et in legione raerebant, sed 
 dignitates non capiebant"; cf. p. 127 "participes . . . fuevunt omnium rerum 
 ad munus fungendum una cum Bomanis oivibus praeterquam de suffragio ferendo 
 aut maglstratu capiendo." The words " qui ex aliis civitatibus Eomam 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. 
 
304 ROMAN PUBLIC LIFE chap. 
 
 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 praefedura, 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.^ 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 mimicipium of 
 Capua and the Roman colony of Puteoli, while nominated prae- 
 fects held their court in the colony of Saturnia and the municipal 
 town of Anagnia.^ 
 
 But the praefect was far from representing the higher func- 
 tions 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 
 dvitas 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 Fvindi,^ 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,* 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.^ 
 
 ' p. 235. 2 Festus p. 233, quotbil p. 302. 
 
 ^ Liv. viii. 14. ' ib. xxiv. 19 ; xxvi. 6. 
 
 5 The language of Livy makes it doubtful whether he conceives the foedus to 
 have continued after the civitaa 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, deindo couubio atque oognationibus, 
 
VII THE INTERNATIONAL RELATIONS OF ROME 306 
 
 Yet, in spite of their indepondence, 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 Eoman, 
 and the parties might appear indifferently before the Capuan 
 meddix or the Eoman 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,^ it is possible that Eoman law alone prevailed and 
 that the Eoman praefect was the only judge. 
 
 The lower class of mimicipia was represented by states 
 " whose whole commonwealth had been merged in that of 
 Eome."^ Of this class Anagnia, the degraded town of the 
 Hernici, was a type.* Stripped of all the active rights of 
 citizenship, and under the direct government of a Eoman prae- 
 fect, 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 Eome'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 Eome. Collective names 
 were soon devised to indicate the closeness of the union thus 
 formed; at first the confederates were "wearers of the toga" 
 {togaM), a name that applied equally to the Latin, Sabellian, and 
 Etruscan. But the introduction of the Greek pallivm into the 
 league destroyed this basis of classification ; and the later term 
 Italid 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 
 
 postremo civitate nobis oonjunxissemua " (of. xxiii. 6). The eivitas here is prob- 
 ably the full citizenship conferred on individual Capuans. They are spoken of 
 sa sooii in 216 B.o. (xxiii, 5), and though the word is sometimes loosely used, 
 it harmonises in its literal sense with the great constitutional privileges of the 
 town, 
 
 ' As at Arpinum (Cio. ad Fam. xiii. 11, 3). 
 
 ^ Festus p. 127 " quorum eivitas universa in civitatem Romanam venit." 
 ' It did not possess any magistracy for secular purposes (Liv. ix. 43 " magis- 
 tratibus, praeterquam sacrorum curatione, interdictum "). 
 
 X 
 
306 ROMAN PUBLIC LIFE chap. 
 
 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) ^ or to the honour (fides) ^ of the Roman 
 people, the two latter expressions being to the Roman mind 
 legally equivalent.^ Such a dediticia dvitas 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.* 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 ; ^ secondly, internal 
 independence — a condition which the Greek cities called avrovofiia, 
 and which, in a Latin charter to a provincial town, appears in 
 the form of the permit suis kgibus uti ; ® 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 con- 
 tracting parties ; its revocation could only be the consequence of 
 a genuine casus belli. In the first case the state is a libera dvitas, 
 in the second a libera el foederata dvitas,'' or, in its more general 
 and briefer designation, a foederata dvitas.^ In Italy positive 
 evidence furnishes us only with \h& foederaiae, 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 ditionem " (Liv. xxxvii. 45), "in potestatem " (xxxix. 54). 
 
 2 "in Mem " (ib. viii. 2). 
 
 ' Polyb. XX. 9, 12 Trapi, 'Pu/naiois hoSwa/ia t6 re eh rijv irlarLV airbv 
 iyXstpifTai Kal rb r^v ^vrpoiTT}v doOi^at Trepi aiirov tu KparouvTU 
 
 * Gell. X. 3, 19. 
 
 ^ Dig. 49, 16, 7, 1 "liber populus est is qui nullius alterius populi potestati 
 est subjeotus." 
 
 ' Lex Anionia de Termessihus i. 8. 
 
 ' Plin. Ep. ad Traj. 92 (93). 
 
 8 Cic. in Verr. iii. 6, 13 ; cf. App. B.C. i. 102 {4irl avre^Kats (vopKoi). 
 
VII THE INTERNATIONAL RELATIONS OF ROME 307 
 
 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 Eome 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.^ It 
 was a characteristic of the iniquiim foedus.^ 
 
 The duties of the federate cities expressed in their name 
 (socii, crv//.fj.axoi) 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.^ 
 Every state had to keep a register of its eifective strength in 
 accordance with a principle of assessment (formula).* 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.^ 
 
 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 Eome, and the 
 antithesis to the socius is the stipendiarius.^ 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 tenvue as possessores, the 
 Italians were held to be owners of their land. The jus Italicvm 
 of the Principate confers on any state to which it is granted 
 quiritarian ownership, and, therefore, immunity from taxation on 
 land. 
 
 ' Dig. 49, 15, 7, 1 "hoc adjicitur, ut intellegatur alterum populum superi- 
 orem esse, non ut intellegatur alterum non esse liberum." Cf. Cic. pro Balbo 16, 
 35 "Id habet banc vim, ut sit ille in foedere inferior." 
 
 ^ Dig. I.e. "is foederatus est item sive aequo foedere in amioitiam venit sive 
 foedere oomprehensum est ut is populus alterius populi majestatem oomiter 
 conservaret." 
 
 '■^ Lex Agraria 1. 21 "sooii nominisve Latini, quibus ex formula togatorum 
 [milites in teira Italia inperare solent]." 
 
 * Liv. xxii. 57 ; xxvii. 10 " milites ex formula paratos esse.'' 
 
 " 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 pro- 
 portion to its fighting strength. * Cic. pro Bcdbo 9, 24. 
 
308 ROMAN PUBLIC LIFE chap. 
 
 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.^ The Italians are known to 
 have been bound by a pleUscitum concerning loans ^ — this, how- 
 ever, 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 Famrda to 
 all the Italici? 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.* 
 
 Closest of all to Rome were the Latins. As members of 
 federate cities they were amongst the socii,^ and it is only as a 
 class with special privileges that they are distinguished from the 
 latter.® 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 munidpia ; but it is 
 possible that on and after the foundation of Ariminum and the 
 last twelve Latin colonies^ comm«raw?i alone was granted, comihivm 
 
 ^ Cic. pro Balbo 8, 21 " inniimeratiiles aliae leges de civili jure sunt latae ; quas 
 Latiiii voluerunt, adsciverunt." 
 
 ^ Liv. XXXV. 7 (193 B.C.) "M. Sempronius tribunus plebls . . . plebem 
 rogavit plebesque solvit ut cum sooiis ao nomine Latino oreditae 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. ' Maorob. Sat. iii. 17, 6. 
 
 ' Cic. pro Balho 8, 20 " foederatos populos fieri fundos oportere . . . non magis 
 est proprium foederatorum quam omnium liberorum." For the formula of ac- 
 ceptance ("fundi — i.e. auctores — faoti simt") cf. Festus p. 89. 
 
 ° Cic. pro Balbo 24, .54 " Latinis, id est foederatis." 
 
 ' The distinction is expressed in the familiar sodi ac nomvnis Latini (Llv. xli. 
 8), socii et Laiium (Sail. Hist. i. 17), and perhaps in socii Latini nominis, if this 
 last expression is to be regarded as an asyndeton. 
 
 ' These twelve colonies, with the dates of their foundations, are — Ariminum 
 (268 B.a.), Beneventum (268), Firmum (264), Aesernia (263), Brundisium (244). 
 
vu THE INTERNATIONAL RELATIONS OF ROME 309 
 
 refused.^ 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 Eome had retained his civic rights in 
 private law, and gained a limited power of suflFrage.^ He could 
 even by complete expatriation (exilivm) surrender his own civitas 
 and attain the full Roman citizenship. But the conditions 
 subsequently imposed on this right ^ 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 Eome. 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.* Another mode in which the individual Latin 
 could acquire the Eoman civitas was by conducting a successful 
 prosecution under the Acilian and Servilian laws of extortion.^ 
 The freedom of the cities, whether Latin or Italian, seems to 
 
 Spoletium (241), Cremona and Plaoentia (218), Copia (193), Valentia (192), 
 Bononia (189), Aquileia (181). 
 
 ^ The later Latin colonists have of right no comMum with Kome (Ulp. Reg, 
 V. 4 " Connbium habent oives Eomani cum oivibus Bomanis ; 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 com/nwrcivm possessed by these 
 colonies see Cic. pro Caec. 35, 102 " jubet enira (Sulla Volaterranos) eodem jure 
 esse quo fuerint Ariminenses, quos quia ignorat duodecim coloniarum fuisse et a 
 oivibus Bomanis hereditates capere potuisse ? " 
 
 ^ Appian {B.O. i. 23), speaking of C. Gracchus' proposal to extend the citizen- 
 ship, suggests a Latin right ^rjipoy hi rais 'Fw/mIuv x"/"""""''"' (pipeiv. Livy, 
 with reference to the year 212 b.o., speaks of the sortitio as to the tribe or tribes 
 in which the Latins should vote (xxv. 3, in ' the trial of Postumius " siteUa . . . 
 lata est ut sortirentur ubi Latini suflragiura ferrent "). 
 
 * Liv. xli. 8 "Lex sooiis ao nominis Latini, qui stirpem ex sese domi relin- 
 querent, dabat ut cives Bomani fierent. " 
 
 * This was the latinitas given to Cisalpine Gaul in 89 B.o. 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 manen- 
 tibus jus dedit Latii, ut possent habere jus quod ceterae Latinae coloniae, id est 
 ut gerendo magistratus civitatem Eomanam adipiscerentur." Consequently when 
 Caesar refounded Comum in this district, in accordance with the lex Vatinia (59 
 B.O.), the new civitas possessed this right (App. B.O. ii. 26). 
 
 * Lex Acilia 1. 77 ; Cic. pro Salbo 24, 54. The probable dates of these laws 
 are 122 and 111 B.o. respectively. 
 
310 ROMAN PUBLIC LIFE chap. 
 
 have won rigid respect from Eome and her magistrates. The 
 burdens of military service were, indeed, unevenly distributed 
 between the central city and her allies,^ while the spoils of war 
 were mainly for the Eoman. But it was a shock and a surprise 
 when in 173 B.C. a consul made personal requisitions on the 
 federate city of Praeneste.^ The lesson once learnt was only 
 too faithfully followed, and the illegal demands of Eoman 
 officials were accompanied by act^ of capricious violence.* But 
 the burden of service and the misuse of power were not the only 
 motives urging the allies to seek the civitas of Eome ; nor was it 
 merely a sentimental desire to be invested with the Eoman 
 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 Eomans by provincial governors 
 could not be claimed by the allies, and, although there is no 
 evidence that Eome, in her final organisation of the Italian 
 confederacy, continued her early policy of inhibiting commerdum 
 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 Eoman. To 
 the Eoman trade with the barbarian was secure, to the Italian 
 precarious ; and everywhere he had to face the competition of 
 the commercial companies of Eoman knights. The grounds of 
 interest coincided with those of sentiment in producing a demand 
 which the progressive party amongst the Eomans strove to meet. 
 The first attempt was made through a law of the consul Placcus 
 in 125 B.C.,* the second by one of 0. Gracchus in 121, the 
 latter law probably offering citizen rights to the Latins and 
 Latin rights to the other allies.^ The final proposal of Livius 
 
 ' The allies before the social war reckon as their chief grievance " per omnes 
 annos atque omnia bella duplici numero se militum equitumque fungi" (Veil. 
 ii. 15). 
 
 ^ Liv. xlil. 1 "(L. Postumius Albinus) . . . literas Praeneste misit, nt sibi 
 magistratus obviam exiret, locnm publice pararet, ubi deverteretur, jumentaque, 
 cum exiret inde, praesto essent. Ante huno consulem nemo unquam sooiis in 
 ulla re oneri aut sumptni fuit . . . Injuria consults . . . et silentium . . . 
 Praenestinorum jus, velut probato exemijlo, magistratibus fecit graviorum in dies 
 talis generis imperiorum." ' C. Gracchus ap. Gell. x. 3, 3. 
 
 * App. B.C. i. 21 and 84. According to Valerius Maximus (ix. 5, 1) Flaccus 
 proposed to give the provocatio to those " qui civitatem mutare uoluissent." 
 
 " App. B.O. i. 23. Plutarch makes it a simple proposal of citizenship for the 
 allies {C. Oracch. 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 cam paene usque Alpis." 
 
VII THE INOORPOEATION OF ITALY 311 
 
 Drusus in 91 was probably an unmodified extension of the 
 civitas,^ 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 Eome 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 Eoman, or rather Italian, pattern was followed in the new 
 constitution ; it possessed two consuls, twelve praetors, and a 
 senate of five hundred ; ^ but both the magistracies and the 
 senate were of a federal type. The issue of the war was to 
 determine whether Eome should remain the leading state or 
 become a mere member of an Italian confederation, although the 
 urflikelihood of the giant city's settling down to this position 
 may have appealed to some of the federal leaders.® Unless a 
 redistribution of territory and population had been effected, 
 Eome would have been the Thebes of the league, and the fate of 
 the Empire would have been in suspense, for a federal govern- 
 ment's capacity for imperial rule had yet to be tested. By timely 
 concessions Eome saved her position as the head of the con- 
 federacy. By the lex Julia (90 B.C.) all the Italian states that 
 had not revolted were offered the civitas,* and this was followed 
 by the lex Flautia Papiria (89 B.C.), which offered the cimtas to 
 the sodi and incolae of the allied cities in revolt.^ 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 Eome.^ 
 
 ^ App. B.C. i. 35 ; he promised to reintroduce the law iripl ttjs TroXire/as. Liv. 
 ilp. Ixxi. " socios et Italicos populos spe civitatis Romanae sollioitavit " ; Veil. ii. 
 14 " Turn oonversus Drusi animua ... ad daudam civitatem Italiae." 
 
 ^ Died, xxxvii. 2. 
 
 ' Cf. the words of Pontius Telesinus, the Samnite leader in the later struggle 
 at the Colline gate (Veil. ii. 27), "eruendam delendamque urbem . . . nuuquam 
 defuturoa raptores Italicae libertatis lupos, nisi silva, in quam refugere solerent, 
 esset exoisa." This, however, is an expression of Samnite rather than of Italian 
 feeling. ^ App. B.G. i. 49 ; Cic. ^ro Bcdbo 8, 21. 
 
 ^ Only one clause of this law is known — ^that by which the cimtas was granted 
 to ineolde 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 difiioult to believe that this cumbrous rule applied to the 
 citizens of the towns. 
 
 ' The gradual nature of the incorporation is attested by the expression 
 of Velleius (ii. 16), " paulatira deinde recipiendo in civitatem, qui arma aut non 
 ceperant aut deposuerant maturius, vires lefectae sunt." 
 
312 ROMAN PUBLIC LIFE chap. 
 
 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.^ But this com- 
 promise 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 overall 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.,^ 
 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 ineflfective through 
 lack of a system of representation. Even had such a system, 
 planned on a small scale by Augustus,* 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 
 
 ' Veil. ii. 20 " Itaque cum ita civitas Italiae data esset, ut in octo tribus con- 
 tribuerentur novi cives, ne potentia eorum et nmltitudo veterum civium dignitatem 
 frangeret plusque possent reoepti in benefioium qnam auotores beueficii, Cinna 
 in omnibus tribubua eos se distributurum poUioitus est." Appian {£.0. i. 49) 
 seems to speak of the creation of ten new tribes {ScKareiovTes i,iri(pTivav iripas iv aXs 
 ix^iporbvow la-xaroi.). 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 epigraphio support, but rests either on a correction of 
 Appiau's text or on the assumption that his account refers to ten of the old 
 tribes. 
 
 '^ Liv. JEp. 84 " Novis civibus senatus consulto sufiragium datum est,'" a care- 
 less phrase of the epitomiser or copyist for the distribution through the tribes 
 (Drakenborch). Sulla, in spite of his rescission of the rights of certam rebel 
 towns, did not disturb this arrangement. 
 
 ' Augustus formed the plan of giving to the senates {decwriones) 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. Aiig. 46). 
 
vn THE INOORPOKATION OF ITALY 813 
 
 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 Eoman 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 dmtas. Arpinum had received 
 the full citizenship in 188 B.C., and its citizens vote henceforward 
 in the Cornelian tribe ; ^ but its internal autonomy was not 
 destroyed, for the town was still legislating for itself in 115 
 B.O.^ Meanwhile there are signs that a higher type of organisa- 
 tion was being given to Eoman colonies ; at least duovirs, who 
 may be duoviri juri dicimdo, are found at Puteoli in 1 05 B.C.* 
 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,* 
 and there is evidence that there was already some division of 
 competence between the local magistrate and the praetor 
 wbanus in civil jurisdiction — the defendant being in some cases 
 compelled to give bail (vadimomum) to bring his case to Rome.^ 
 
 ' Liv. zxxviii. 36. 
 
 ^ Cicero says that Ms grandfather, in or just before the consulship of Soaurus 
 (115 B.C.), "restitit M. Gratidio . . . ferenti legem tabellarianx " {de Leg. iii. 
 16, 36). » C.I.L. i. p. 163. 
 
 * 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 (Fragmentwn 
 Tarentirmm in L'AnnSe fyigraphique, 1896, pp. 30, 31). Arpinum was 
 undergoing reorganisation in 46 B.C. (Cio. ad Fam. xiii. 11, 3). 
 
 ° Cio. m Yerr. v. 13, 34 "unum illud, quod ita fuit illustre notumque 
 omnibus, ut nemo tam rusticanus homo L. Lucullo et M. Cotta consulibus (74 
 B.O. ) Eoraam ex uUo munioipio vadimonii causa venerit quin soiret jura omnia 
 praetoris urbani nutu . . . Chelidonis . . . gubernari." 
 
314 EOMAN PUBLIC LIFE chap. 
 
 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.^ This was interpreted by the democratic party as a 
 forecast of the citizenship, for Gallia Cisalpina was certainly 
 enrolled in Kome by the revolutionary government of Cinna or 
 his successors.^ 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.* Two or three years earlier 
 he had busied himself with the creation of an Italian organisation 
 in the Gallic towns ; * 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," * i.e. to its recognition as a group of Italian 
 townships. It is doubtful whether the lex Rvibria belongs to the 
 epoch of the Julian or the Augustan organisation ; ^ 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 (diwi jubere) may be ordered by the local magistrate. 
 Again, in the action for the recovery of a loan and in those 
 
 ^ Ascon. in Pison, p. 3. 
 
 " This is proved both \>j 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.o. 
 (Cic. ad Att. v. 11, 2 "Maroellus foede in Comensi : etsi ille magistratum non 
 gesserit, erat tamen Transpadanus "). 
 
 s Dio Cass. xli. 36. 
 
 ■" Cio. ad Att. v. 2, 3 "eratque rumor de Transpadanis, eos jussos miviros 
 creare. Quod si ita est, magnos motus timeo." 
 
 ^ App. B.O. V. 3 rliv re yap KcXtlk^jv tjjk ivrbs "AXttcwx idixa Ka((rapo! 
 d^iouvTOS (i.e. -Octavianus after Philippi) airdvofiov a^i^vatf yvtbixrt tqv irpor^pov 
 Katcrapos. Cf. iii. 30 and Dio Cass, xlviii. 12. 
 
 8 The name given to the district in the law OaSia Cisalpema, GaZKa cia 
 Alpeis (co. 22 and 23) suits both epochs equally well, for Caesar had not made it 
 a part of Italy. The fact that the praetor wbanus is the central authority in 
 jurisdiction (cc. 21 and 22) suits the Augustan epoch better. 
 
vii THE INCOEPORATION OF ITALY 815 
 
 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.^ 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 
 (magisiratus potestatesve),^ senate (senatus, curia, composed of 
 decwiones conscripUve), and popular assembly {comitia conciliumve, 
 composed of mwddpes and sometimes of incolae) ; and the lex 
 Julia municipalis of Caesar (45 B.C.) ordains a uniform qualifica- 
 tion for the local magistracies and senates, and enjoins that the 
 local census shall be taken in conjunction with that of Eome. 
 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 
 munidpia, coloniae and praefecturae existing side by side,^ while 
 inscriptions show titles for oJGBcials, such as dictator or praetor, 
 which may be as old as those of Roman magistrates.* 
 
 ' Lex Rubria oc. 21 and 22. For tlie vadimonium, of. Cio. in Verr. v. 13, 
 34 (quoted p. 313). 
 
 ^ Generally quattvmmri, this board being usually divided into two magistrates 
 with higher jurisdiction {duvmmiri jv/ri dicundo) and two police officials {duummri 
 aediles). Sometimes we find Illlm/ri jv/ri dicundo, perhaps a designation for the 
 joint board, or, where the magistrates with aedilician power alone are referred 
 to, linviri aediles or aedilicia potestate. See Wilmanns Index pp. 620-622. 
 
 ' Lea; Julia mun, 1. 84. Cf. Cic. in Pis. 22, 51 "neque enim regio uUa fuit, 
 nee municipium neque praefectura aut colonia, ex qua non ad me publice 
 vcneriut gratulatum." 
 
 * Wilmanns Index p. 618. 
 
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 coinmand 
 of the cities of a wide district under the guidance of the personal 
 ivvperium, and created the first permanent external department 
 of administration (jirovincia). 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 accept- 
 ing 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 mean- 
 while 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 
 
CHAP. VIII THE PROVINCES OF THE REPUBLIC 317 
 
 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 indi- 
 vidual commanderSjOr to the search for a frontier which should be a 
 permanent protection against barbarian invasion j and at the close 
 of the Republic the list of Eoman provinces had risen to fifteen.^ 
 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,^ in Asia 44,^ and 64 in Transalpine Gaul.* 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 Eepublic of Senate and. people, in the 
 later of either of these powers,^ — a guarantee which was meant 
 to be perpetual, and the breach of which was either an act of 
 war or its result. A charter Qex data), on the other hand,* 
 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 ^^a control of their 
 
 ' Sicily, Sardinia, Hither and Further Spain, Ulyrioum, Macedonia and Aohaea 
 (separated hy Caesar), Africa, Asia, Gallia Narbouensis, Gallia Cisalpina, 
 Bithynia, Gyrene with Crete, Cilicia and Syria. 
 
 ^ 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 Verrr. ii. 
 55, 137), two for each state (ib. 63, 133). 
 
 ' Cassiodorus Chron. ad a.u.c. 670 "Asiam in XLiiir. regiones Sulla distribuit." 
 
 • Tao. Ann. iii. 44. This division may be the work of Augustus. 
 
 ■> pp. 244, 283. ' p. 245. 
 
 ' 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 posses- 
 sion " is alone conferred. 
 
318 ROMAN PUBLIC LIFE ouai. 
 
 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''^ — and both agree in being 
 entirely outside the sphere of the governor's jurisdiction. ^ 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 inde- 
 pendence was less conditioned than that of the free and allied 
 cities, for they were bound to furnish less definite assistance to 
 Eome in time of need, and their foreign activity was not wholly 
 destroyed. But the chief reason why in a list of Eome's friends 
 they appear in a separate category * 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 (stvpevdiariae), 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 provindae). This law was usually the work of the 
 conquering general himself, assisted by ten senatorial com- 
 missioners {decern legaO) appointed by the Senate, and it con- 
 tinued to bear the name of its chief creator, as we see in the 
 cases of the lex EupUia of Sicily,* the lex AemUia of Macedonia,^ 
 and the lex Pompeia of Bithynia.* 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 
 
 ^ See the lex Antonia de Termessibus (71 B.C.), especially the clause -which 
 confers autonomy "so far sa is consistent with this charter" (i. 1. 7 "eique 
 legibus sueis ita utunto . . . quod advorsus hanc legem non flat"). 
 
 ^ Cio. de Prov. Cons. 3, 6. For the weakening of this respect for airovo/ila 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 jnstissinia atque optima populi liberi plane et vere erant liberi "). 
 
 = Festus p. 218. * Cio. in Verr. ii. 13, 32 ; 15, 37 ; 16, 39 ; 24, 59. 
 
 ^ Liv. xlv. 17 and 32. e pji^. ad Traj. 79 (83), 1. 
 
VIII THE PROVINCES OF THE REPUBLIC 319 
 
 particular circuit-courts which the citizens of the various tovt^us 
 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 Eoman 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 werefree;^ 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.^ 
 
 The theory of Eoman taxation was in origin that it was a 
 war indemnity. This accounts for the fact that in the early 
 days of Edme's dealings with conquered peoples a tax might be 
 imposed even on nations which were declared free,^ and for the 
 name stipendiwn ("payment for the army") which was borne by 
 the direct taxation imposed by Eoman commissioners on pro- 
 vincials.* 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 Eoman 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,^ the Spanish 
 provinces must have cost more than they brought in, and in 
 
 ^ As Cicero did in his government of Cilicia. See ad Att. vi. 2, 4 "omnes 
 (civitates), suis legibus et judiciis usae, airovo/i-iap adeptae, revixerunt " ; vi. 1, 
 15 "multaque sum secutus Seaevolae (governor of Asia drca 98 B.C.) ; in iis 
 iUud, in quo sibi libertatera oensent Graeci datam, nt Graeci inter se disceptent 
 suis legibus . . . Graeci vero exsultant quod peregrinis judicibns utuntur." 
 
 ^ 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 decern 
 proximis magistratum gesserant ; aperte fatebantur "). 
 
 3 On the conquest of Bpirus in 167 B.O., although all the lUyrians were 
 declared libeH, only some were pronounced "non solum liberi sed etiam immunes" 
 (Liv. xlv. 26). 
 
 * Cf. Tac. Hist. iv. 74 " nam neque quies gentium sine armis neque arma sine 
 stipendiis neque stipendia sine tributis haberi queunt." 
 
 " Liv. xlv. 29. 
 
320 ROMAN PUBLIC LIFE chap. 
 
 Cicero's time it was only the Asiatic provinces, where taxes were 
 imposed on quite a different system, that yielded a surplus.^ It 
 was this system, which the Eomans found existing in Sicily, 
 Sardinia, and Asia, and with their characteristic negligence 
 elected to preserve, which changed the whole theory of Eoman 
 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 Eoman lawyer should associate this 
 due with the vedigal 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.^ The chief practical consequences of the tithe system 
 were a surplus to the treasury, and the exactions of the middle- 
 men {pvhlicani) through the indirect system of collection which 
 it involved. 
 
 The direct tax (stijiendium) was collected by a tribute assessed 
 either on the land (triiutvm soli) or on the personalty oi 
 individuals {Mbutwn capitis).^ 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 el(r(j>opaL : in Spain amongst other rough 
 expedients they seem to have adopted a valuation tax on a 
 proportion of the produce of the soil ; * while elsewhere, as in 
 Macedonia,^ they fixed a total on the existing basis of collection. 
 
 ' Cic. pro Leg. Man. 6, 14 " ceteramm provinciaruin vectigalia, Quirites, tanta 
 sunt ut lis ad ipsas provincias tutandas vix contenti esse possimus, Asia veto tain 
 opima est et fertilis nt . . . facile omnibus terris anteoellat." 
 
 ^ Gaius ii. 7 "in eo (provinciali) solo dominium populi Romani est vel 
 Oaesaris, nos autem possessionem tantum vel usumfructum habere videmur." 
 The theory is perhaps as old as the Gracohan period. C. Gracchus' association of 
 the Asiatic taxes with the censor (of. 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). 
 
 ^ These expressions are known only from the literature of the Empire ; it may 
 be a mere accident that iu Republican literature tributum seems never to be used 
 of imperial taxation. The form stipendium is preferred. In Liv. xxiii. 32 we 
 have the trSmtum of Sardinia mentioned with reference to Republican times. 
 The venditio trUnitorum and the dival of Cilicia (Cio. ad Fam. iii 8, 5 ; ad Att. 
 v. 16, 2) probably refer to local taxes improperly sold to puUicani. 
 
 ^ Liv. xliii. 2 " (Hispani) impetraverunt ne frumenti aestimatlouem magistratus 
 Roraanus haberet." 
 
 » p. 319. 
 
nu THE PEOVINCES OF THE REPUBLIC 321 
 
 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 vedigales prownciae 
 depended on whether the site of the auction was in the province 
 itself, where local companies or even communities ^ could com- 
 pete for its collection, or whether the tithes of the whole province 
 must be put up to auction in Eome, in which case the province 
 was likely to become the prey of a single Eoman company. In 
 Sicily the first system was adopted in accordance with the 
 principles laid down by Hiero, its last great king (lex Hieronica) ; ^ 
 the second system was devised by 0. Gracchus for Asia and was 
 doubtless extended to eastern provinces subsequently organised 
 such as Cilicia.^ The pretext for the change was no doubt the 
 incapacity of the Asiatic cities to collect their own dues,* and 
 was welcome to the weakness of the states, which liked to have 
 near them a body of Eoman capitalists from whom they could 
 borrow in emergency; but it created a pernicious connexion 
 between capitalism and administration which made the govern- 
 ment of the Asiatic dependencies the gloomiest scene of Eoman 
 rule. The tithe system in Asia, and perhaps in other provinces 
 where it prevailed, was abolished by Caesar in 48 B.C.^ 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 {portitpres) perhaps throughout the whole 
 imperial world, as they had been from the earliest times in Italy.* 
 Other dues demanded from the province were paid for by the 
 Eoman government. Such were the corn supplied for the 
 praetor and his retinue {frumentvm in cellam or frumenivm 
 aestimatum)^ and the second decuma sometimes required by the 
 state (JrumenMim emptum) and raised by command of the Senate 
 
 1 Cic. in Verr. iii. 33, 77. ^ ib. ii. 13, 32 ; 26, 63, etc. 
 
 2 ib. iii. 6, 12 "inter Siciliam (jeterasqne provincias . . in agrorum 
 veotigalium rations too interest, quod ceteris aut impositum veotigal est certum 
 . . . aut oensoria locatio oonstituta est, ut Asiae lege Sempronia." 
 
 ^ 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 disoripserat." The reference is to Sulla's temporai-y abolition of the 
 Gracohan principle of collection. 
 
 5 App. B.G. V. 4 ; Dio Cass. xlii. 6. 
 
 8 Nothing seems to be known about the conditions of sale of the provincial 
 portoria, e.g. whether those of Asia were put up at Borne like the decumae. 
 
 1 Cic. in Verr. iii. oc. 81-96, 188-222. 
 
 Y 
 
322 ROMAN PUBLIC LIFE chap. 
 
 and people.^ 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.^ But 
 we have seen that even Sulla did not formally dissociate the 
 consulship and praetorship from provincial rule.^ The conse- 
 quences 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.* They are strictly consular, and are 
 technically entered on \ff 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 ® — 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 163 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.^ 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,^ and was 
 
 ' Cio. in Verr. iii. 70, 163. Cf. Liv. xxxvi. 2 "idem L. Oppio de alteris 
 decumis exigendis in Sardinia imperatum." Sometimes tliis enforced sale of com 
 (fmmmtiim, imperatum) was required from free cities sucli as Halaesa, Centuripae, 
 and Messana in Sicily (Cic. in Verr. iii. 73f 170 ; iv. 9, 20). 
 
 2 pp. 201, 202. 3 p. 201. 
 
 * Sail. Jwff, 27 ; Cic. de Prov. Cons. 2, 3 ; pro Domo 9, 24. 
 
 = Cic. ad Fam. i. 9, 25. 
 
 ^ Cf. Cic. de Prm. Cons. 15, 37 (if the consul of 65 B.C. succeeds Caesar on 
 March 1, 54 B.C.) "Puerit toto in consulatu sine provincia, cui fiierit, ante- 
 quam designatus est, decreta provincia ? Sortietur, an non ? Nam et non 
 sortiri ahsurdnm est, et quod sortitus sis non habere. Proficiscetur paludatus ? 
 Quo? Quo perveuire ante certam diem non lioebit. Januario, Februario pro- 
 Tinciam non habebit. Kalendis ei denique Maitiis nascetur repente provincia." 
 
 ' Cic. ad Fam. i. 9, 25 ; xii. 4, 2. 
 
vin THE PROVINCES OF THE REPUBLIC 32? 
 
 only accidentally disastrous as leading to the quarrel between 
 Caesar and the Senate, and thence to the downfall of the Eoman 
 Republic. The pro-magistracy was first raised into a separate 
 oflSce 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 oflBcial, was 
 entrusted by the Senate with money or a credit for meeting the 
 expenses of the administration of his province, '^ 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 ; ^ 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.* He might even, like the legates, be dismissed for 
 incompetence or maladministration before the term of his office 
 
 1 Cio. in Verr. i. 13, 34 "peounia attributa, numerata est. Profeotus est 
 qnaestor in provinoiam (Verres). Venit exspeotatus in Galliara ad exeroitiim 
 consularem cum pecunia." 
 
 ^ Rationes referre (Cio. m Verr. i. 13, 36). In accordance with a, lex Julia 
 (perhaps repetundarwm) of Caesar's, the accounts had to be deposited at the 
 aera/rium, and two copies in two cities of the province (Cic. ad Fam, v. 20, 2 ; 
 Plut. Cato Mim. 38). 
 
 3 p. 215. 
 
324 ROMAN PUBLIC LIFE chap. 
 
 had expired.^ The legati had originally been representatives of 
 the government in Eome, but, to avoid friction, the custom grew 
 up of allowing governors to suggest individuals for the post.^ 
 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 stillmore 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.^ 
 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 
 
 ' Cic. in Verr. iii. 58, 134 "Quaestores, legates . . . nralti missos fecerunt 
 et de provincia decedere jusserunt, quod illorum culpa se minus commode audire 
 arbitrarentuT aut quod peocare ipsos aliqua in re judicarent." 
 
 2 The transition is marked in 169 B.C. (Liv. xliv. 18 " Senatus On. Servilio 
 consuli negotium dedit, ut is in Macedoniam, quos L. Aemilio videretur, 
 legaret"). 
 
 ^ Cicero delegates even jurisdiction to one of his comites, Volusius {ad Alt. 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 contubemales, 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. 
 
viil THE PEOYINCES Of THE EEPUBLIC 325 
 
 had been plundering their respective treasuries for the last ten 
 years.^ But the possibility of such a discovery is itself a testi- 
 mony 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 regula- 
 tions 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 accord 
 ing to its laws,^ a regulation which certainly guaranteed th% 
 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 jvdex 
 or judices,^ who are perhaps in this case to be Roman citizens.* 
 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.^ In suits between Roman citizens and Sicilians the 
 jitdex was to be of the nationality of the defendant.* In all 
 other matters judices chosen by the magistrate (selecti) were to 
 be appointed from the Roman citizens dwelling within the assize.'' 
 
 ' p. 319, note 2. 
 
 ^ Cie. in Verr. ii. 13, 32 "Sioull hoc jure sunt ut, quod oivia cum cive agat, 
 domi certet suis legibus." 
 
 * ib. "quod Sioulua cum Sioulo non ejusdem oivitatis (agat), ut de eo 
 praetor judices ex P. RupUii deoreto . . . sortiatur." 
 
 ■• It is possible, however, that the principle here adopted was that the judex 
 should be of the nationality of the defendant. 
 
 * Cic. 1.0. " quod privatus a populo petit aut populus a privato, senatus ex 
 aliqua civitate, qui judioet, datur, oum alternae civitates rejectae sunt." 
 
 ' ib. " quod oivis Romanus a Sioulo petit, Siculus judex datur, quod Siculus 
 1 civi Eomano, civis Eomanus datur." 
 
 ' ib. "ceterarum rerum selecti judices ex conventii civium Eomanorum pro- 
 ponl Solent." 
 
326 ROMAN PUBLIC LIFE chap. 
 
 In Sicily it is clear that the pei-egrinus 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 Mucins 
 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.^ 
 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,^ 
 and it had a continuous existence, although the unity and 
 continuity of its life depended too much on the discretion of 
 the individual governor.* The edict might be composed at 
 Rome,* and its author might copy from more than one original. 
 The rulings of his predecessor would doubtless be weU known ; 
 there were the edicts of other provinces, the work of famous 
 administrators of the past ; ^ and, as a fruitful source of general 
 rules of procedure, there was the edidum perpduvm of the capital. 
 In Cicero's own edict, of which he furnishes a brief descrip- 
 tion, 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 
 
 ^ Cic. ad Att. vi. 1, 15 "multaque sum secutus Soaevolae ; in iis illud, is 
 quo sibi libertatem ceiisent Graeci datam, ut Graeci inter se dlsceptent suis legibus 
 . . . Graeci vero exsultant quod peregrinis judicibus utuntur " ; ad Att. vi. 2, 4 
 " omnes (civitates), suis legibus et judiciis usae, avrovo/ilav adeptae, reTixerunt." 
 
 " "Bdictum Sieiliense" (Cio. m V^-r. i. 45, 117). 
 
 ' 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 
 itiaere bis terve . . . literas miserat, quod quaedam a se constituta resoinderera " 
 {ad Att. vi. 1, 2). 
 
 * Cic. ad Fam. iii. 8, 4. 
 
 * Thus Cicero, governor of Cilicia, followed in some respects the edict oi 
 Mucius Scaevola, the former governor of Asia (Cic. ad Alt. vi. 1, 15). 
 
viii THE PROVINCES OF THE REPUBLIC 827 
 
 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.^ 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 (corwentus, 5iotK'^o-£is),^ 
 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,^ and the governor 
 held a court {forum egit) in each of them in turn.* 
 
 Delegated jurisdiction was performed usually by the quaestor 
 and the legates ; in both cases it was due to the mandate of 
 the governor,^ who could assign them lictors, if he pleased,® and 
 could always control their sentences.'^ 
 
 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.^ On the other 
 
 ' Cic. ad Att. vi. 1, 15 "unum (genus) est provinoiale, in quo est de 
 rationibns civitatum, de aere alieno, de usura, de syngraphis ; in eodem omnia 
 de publicanis. Alteram, quod sine edioto satis commode transigi non potest, de 
 hereditatum possessionibus, de bonis possidendis vendendis, magistris faciendis : 
 quae ex edioto et postulari et fieri solent. Tertium, de reliquo jure dicundo 
 dypa^io" reliqui. Dixi me de eo genere mea decreta ad ediota urbana aocommoda- 
 turum." 
 
 2 Cio. ad Fam. iii. 8, 6. » Cic. ad Att. v. 21, 6. 
 
 * Cic. ad Att. v. 20, 1 ; ad Fam. iii. 8, 4 and 5. 
 
 * Suet. Goes. 7 "Quaestori (Caesari) ulterior Hispania obvenit ; ubi cum, 
 mandatu praetoris, jure dicundo conventus circumiret, etc." Quaestorian juris- 
 diction was more frequent in Sicily than in other provinces, on account of the 
 presence of the second quaestor at Lilybaeum. 
 
 " Cic. ad Fam. xii. 30, 7 " lUud non niniium prbbo quod scribis . . . te tuis 
 etiam legatis lictores ademisse." 
 
 ' Thus Verres quashes either a decision, or the execution of a decision, given 
 by his quaestor (Cio. Div. in Caec. 17, 66 "Lilybaeum Verres venit postea: 
 rem cognoscit : factumimprobat : cogit quaestorem suum pecuniam . . . adnumerare 
 et reddere "). 
 
 * Possibly certain kinds of criminal jurisdiction were guaranteed to cities by 
 the lex provinciae. The Senate of Calina in Sicily tried a, slave (Cio. in Verr. 
 iv. 45, 100). 
 
328 ROMAN PUBLIC LIFE chap. 
 
 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 Eome.^ The only restraining 
 influence on the governor's jurisdiction was the necessity, imposed 
 by custom, of consulting a council of advisers.^ This consilium, 
 however, was purely Roman, being composed of Roman citizens 
 residing in the conventm and of members of the governor's 
 retinue,* and although a council composed whoUy of the latter 
 was usually avoided, there was no legal hindrance to such a 
 narrow selection.* 
 
 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.^ 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.^ 
 
 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 
 
 ^ Cic. in Verr. i. 33, 84 (of an ImeiUe at Lampsacus) ' ' Non te ad seuatum 
 causam deferre . . . non eos homines, qui populum concitarant, consulum Uteris 
 evooandos curare oportuit ? " 
 
 ^ The council was not, however, legally necessary. Cf. Cic. in Verr. ii. 30, 75 
 " Reus plorare . . . ut cum consilio cognosceret. " 
 
 s ih. ii. 29, 70 ; 30, 75. 
 
 * ib. ii. 30, 75 "hominem innocentem de sententia scribae, medici haruspicis- 
 que condemnat." 
 
 " 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. 
 
 ' Cic. in ferr. v. 66, 170 " Faoinus est vincire oivem Romanum ; scelus, 
 verberare : props parricidium, necare : quid dioam in crucem toUere ! " Cf pro 
 Bah. 5, 17. 
 
viti THE PROVIKCES OF THE EEPUBLIO 329 
 
 important step.^ There was an unparalleled amount of legisla- 
 tion 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 
 magistratuiim, repetwndarvm) ; 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 legisla- 
 tion 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 Eepublican 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 imperiwn, 
 a clinging superstition which the Romans had inherited from the 
 history of their own state and her days of conquest. The 
 Eoman Empire had been developed from a protectorate ; it bears 
 to the end of the Eepublican 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 
 • 
 
 ' See p. 285. 
 
330 ROMAN PUBLIC LIFE chap, vin 
 
 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, vi^hich, 
 with its mechanical routine and its self-evolved rules, is perhaps 
 the surest of all checks on autocracy. 
 
CHAPTER IX 
 
 THE REVOLTJTION 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 consti- 
 tution, by gradually creating a stronger executive organ than 
 had beeu known since the time of the monarchy, had two dis- 
 tinguishing 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 pre- 
 sented 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 sufiicient 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 — top powerful for the users — are the invperator, the 
 
332 ROMAN PUBLIC LIFE chap. 
 
 army, and the camp. Henceforth we find a perpetual associa- 
 tion 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 0. 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 (joopulares) 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 some- 
 what dangerous policy of playing off Italian rights against those 
 of the city proletariate. But, as belief usually follows accept- 
 ance, 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 Eome, 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 improU 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 
 
IX THE REVOLUTION 333 
 
 supposed that there was any clear lino 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 oxdinum, merely a means 
 of bolstering up the existing constitution by means of a union 
 of the propertied and therefore "loyal" classes (fioni). The 
 municipal statesman did, indeed, wish to see an " Italian " rather 
 than a " Eoman " government, but he had no scheme by which 
 Italy could have secured representation at Eome, and before 
 the close of his life he had accepted the inevitable solution of 
 personal rule. There was to be a moderator rei puhlicae, a 
 princeps civitatis;^ 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, 
 hid come to be known as egmtes? 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 
 
 1 Cic. de JRep. v. 6, 8 (,ad Att. viii. 11, 1) ; v. 7, 9.. = p. 224. 
 
SM ROMAN PUBLIC LIFE chap, 
 
 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 disafiTection 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 revolu- 
 tionary 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 Pompeins 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 t^ 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 two-fold 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,i 
 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 
 
 ' p. 314. 
 
ix THE REVOLUTION ■ 335 
 
 world by individual gi-ants and recruiting for the legions. The 
 laws of debt were emended by the just bankraptcy laws of 
 Caesar and Augustus, and even the leges frv/mentariae required 
 but a slight modification to make them a genuine scheme of 
 poor-relief.^ 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 work- 
 able or really democratic institution ; and personal rule, as the 
 only expression of democracy, had asserted itself at the be- 
 ginning 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 irwperium. 
 
 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 
 
 ' Caesar reduced the numter of the recipients of the corn-dole from 320,000 
 to 150,000 (Suet. Oaes. 41). In the Principate it stood at about 200,000. Sea 
 Marquardt Staatsverw. ii. p. 118. 
 
336 • ROMAN PUBLIC LIFE chaf 
 
 the municipal towns. ^ Help might also have been looked for 
 from a reformed assembly^ one that had been made representa- 
 tive of the whole Italian people. The allies nearly worked out 
 this means of salvation for themselves,^ 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 indi- 
 viduals 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 Eoman citizens of the legions who made 
 the Princeps^ 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,* were merely efi'orts for tiding 
 
 • p. 312. 2 p. 311. 
 
 ^ It is true, however, that the Princeps was often made by an army, not by tht 
 army. 
 
 * Dio Cass. xlii. 20. The (iiotatorship of 49 B.o. had been held only for eleven 
 days and was probably conferred merelv comitiorum habendorum cavsa. See p. 193, 
 
IX THE TRANSITION TO THE PRINCIPATE 337 
 
 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.i But in the last year of his life (44 B.C.) he entered 
 on a perpetual dictatorship,^ a revival of the Koman 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.* But every educated 
 Roman knew that the Roman monarchy had been nothing else 
 than the unlimited inyperium, 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,* and there was no concealment of its military 
 character, for the title imperator was now borne by the regent 
 within the walls.^ This designation was a mere symbol of 
 military command and the fullest jurisdiction ; it was no descrip- 
 tion of a basis actual or future on which Caesar's power could 
 rest, for the unqualified invperiwm 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.,* has the 
 appearance of a special conferment for a given purpose ; but the 
 trihinicia 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 imperiwm, valuable for the inviol- 
 ability 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 
 
 ' Dio Cass, xliii. 14 and 33. It has been interpreted as a dictatorship m 
 publicae constitveTidae causa. 
 
 2 C.I.L. i. p. 452. 
 
 8 Plut. Caea. 61 ; Ant. 12 ; Cio. PMl. ii. 34, 85. 
 
 * Cf. Cic. ad Fam. xi. 27, 8 " si Caesar rex fuerit . . . quod mihi quidem videtur." 
 
 ° Dio Ca!!S. xliii. 44. Caesar probably used it after his Dame and not a-s 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. 
 
 ° Dio Cass, xliii, 14, 
 
 Z 
 
338 ROMAN PUBLIC LIFE chap. 
 
 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 irrvperium. 
 
 The murder of Caesar had, in words of the time, abolished 
 the rex but not the regiivm} 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 ; ^ but so purely was it an agreement 
 between the contending personalities that its renewal was con- 
 trived in 38 B.C. without any reference to the comitia.^ 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," * 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.,^ 
 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,® and he fixed January 1, 27 B.C. as the date 
 
 ' Cic. ad Fam. xii. 1, 1 "nam, ut adhuo quidem actum est, non regno, sed 
 rege libertiti videmur." 
 
 2 Mormmmium Anayranum i. 8-9 "Populus . , . me . . . trium virum rei 
 publicae constituendae creavit. " ^ App. B.C. v. 95. 
 
 * Mon. Anc. vi. 13-15 "In consulatu sexto et septimo, bella ubi civilia 
 exstinxeram, per consensum universonim potitus rerum omnium, rem publicam 
 ex mea potestate in senatus populiqiie Bomani arbitrium transtuli." 
 
 * Die Cass. xlix. 15. 
 
 ° Tac. Ann. iii. 28 "sexto . . , consulatu . . . quae triumviratu jusserat 
 abolevit." 
 
IX THE TRANSITION TO THE PRINOIPATE 336 
 
 on which he would divest himself of his extraordinary power.' 
 On this day " he gave back the commonwealth to the diycretionary 
 power of Senate and people." ^ 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 sur- 
 rendered. 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,^ was 
 given irrvperiwrn for ten years with the government of certain 
 specified provinces,* while at the same time he was made com- 
 mander-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.^ Yearly consulships were still the chief basis of his 
 dignity, if not of his authority, in the capital, while the tribun- 
 ician power still continued but was as yet sparingly employed. 
 
 Such was the settlement that was greeted, officially and 
 unofficially, as a restoration of the Eepublic,** but which later 
 writers held, with equal reason, to be the commencement of the 
 legitimate monarchy.'' 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 coUeagueship, 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, 
 
 ' Cf. Tao. Ann. i. 2 "posito triumviri nomine." 
 
 ^ Hon. Anc. I.e. 
 
 " ib. vi. 16 (after the words on p. 338 note 4) "Quo pro merito meo 
 senatus oonsulto Aug. appellatus sum." 
 
 * Dio Cass. liii. 12. Augustus uses the expression considare imperium for his 
 position at this time (Mon. Anc. ii. 5, 8). It resembled a pro-consular command, 
 but was held within the city. Compare the position of Pompeius in 52 B.o. 
 
 " Strabo p. 840 i/ irarpls iirirpe^iv airQ tt)v xpoaraixiav ttjs iiyefioi'las Kal 
 wo\4/j,ov Kal elpiriiiris KariaTi) Kipws Sia. ^lov. 
 
 ^ 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. 1. 689 
 " redditaque est omnis populo provincia nostro " ; Veil. ii. 89 " prisca ilia et 
 antiqua rei publicae forma revooata." 
 
 ' Dio Cass. lii. 1 ix Si toijtov p.ova.px^'icScu aSBis ixpi^Sis ilp^avro. . In the 
 Oenotaphia Pisana (a.d. 2) ii. 1. 12 Augustus is called "custos imperi Bomani 
 totiusque orbis terrarum praeses " (Wilmanns n. 883). 
 
340 ROMAN PUBLIC LIFE chap, ix 
 
 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 Eome and Italy, 
 and that an imperivm, which must now be described as proconsulare, 
 was renewed and perhaps increased.-'- 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. 
 
 ' Dio Cass. liii. 32. 
 
CHAPTER X 
 
 THE PEINCIPATE 
 
 § 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 Eome 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 Eome and her Italian 
 dependencies now merged in the city, was to conceal as care- 
 fully as possible the military basis of his rule. The unlimited 
 im/periwn was to be felt only by his army and his provincial 
 subjects. 
 
 It needed little reflection to show that this principle, al- 
 though in appearance the most important that underlay the 
 Principate, was practically unworkable. Government in Eome 
 was inconceivable without an imperium, and supreme govern- 
 ment 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 Eepublican history, the Emperor 
 was allowed to retain the full imperium within the walls ; ''■ 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 IJepublic — that the Emperor was not debarred 
 by his presence in Eome from holding command abroad. It 
 
 ' Dio Cass. liii. 32. 
 
342 ROMAN PUBLIC LIFE chap, 
 
 might signify that the limitations imposed by the city walls 
 now rendered the pro-consular 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 Eome 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 imperivm he gives justice, as 
 a court of first instance or a coxu-t 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 con- 
 ferred ; ^ 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.^ 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,* we find 
 the Emperor credited with the heterogeneous powers of mak- 
 ing 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 opera- 
 tion of certain enactments and gives him certain privileges, not 
 
 > Dio Cass. liv. 10. 2 ib. liii. 32. 
 
 ' O.I.L. vi. n. 930. It describes itself as a law and ia generally knoivn as the 
 lex de imperio Vespasiani. But its wording bears more analogy to that of a 
 senaias consulium. See Mommsen Staatsrecht ii. p. 878. 
 
X THE POWERS OF THE PRINCEPS 343 
 
 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 imperktm, 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 imperivm; for the imperial biographies 
 frequently speak of the gift of the proconsulare i/m/perivm (by 
 the Senate) and of the tribunicia potestas (by Senate and People) 
 without any hint of a general law conferring the "imperium."^ 
 Yet the gift of the imperivm is sometimes mentioned,^ and if 
 the passages of jurists of the second and third centuries, 
 which speak of imperivm being conferred through a hx^ 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 supple- 
 ment 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 {sacrammtmn), which dur- 
 ing the closing years of the Eepublic 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 
 
 ' Vitae Macrini 7 ; Alexandri 8 ; ProH 12 ; Maximi et BtMini 8. 
 
 ^ " Dato imperio "( rite Keri 4), "accepit imperiuin " (Fite^teantiri 1). It 
 is possible, however, that these are references merely to the reception of the title 
 vmperatm ; of. Vita JuUani 3 " imperator est appellatus " ; Vila ProH 12 
 "nomen imperatorium." For the view that there was always a lex de imperio' 
 see Karlowa Rdmische Rechtsgeschichte i. pp. 493 If. 
 
 ' Gaius Inst. 1. 5 (on the imperial constituiio) "nee unquam dubitatum est 
 quin id legis vicem obtineat, cum ipse imperator per legem imperium accipiat " ; 
 Ulpian in Dig, 1, 4, 1 "Quod priiioipi plaouit, legis habet vigorem : ntpote 
 cum lege regia, quae de imperio ejus lata est, populus ei et in eum omne suum 
 imperium et poteetatem oonferat. " The view that these passages are interpola- 
 tions is possible but hazardous. A genuine expression of belief in the lex regia 
 appears in Justinian {Cod. i. 17, 1, 7). 
 
344 ROMAN PUBLIC LIFE chap. 
 
 commander.! 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 ; ^ 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.' The fact that a soldier's oath bound the 
 whole Eoman 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 
 Eoman lawyer cared or dared to evolve a complete theory of 
 the Imperial constitution, and that here, as in so many other 
 departments of Eoman 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 im/periwm, others are attached more closely 
 to the tribunician power, while others again are associated with 
 the relics of Eepublican offices held by the Princeps, or flow from 
 certain extraordinary rights conferred on him by statute. 
 
 (i.) The first rights connected with the mvperiv/m 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 Eepublic. The Princeps has 
 the right to raise levies,* to nominate officers, and to confer 
 miKtary distinctions. In declaring war he has replaced the 
 comitia of the centuries ; and the statutory recognition of his 
 right to conclude a treaty ^ settled a vexed question of Eepublican 
 
 ' 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). 
 
 " "Romae ruere in servitium oonsules, patres, eques " (Tac. Ann. 1. 7). 
 
 ' Tac. Mist. i. 55 "Inferioris tamen Germaniae legiones sollemni Kalen- 
 darum Januariarum saoramento pro Galba adactae." For the renewal of the oath 
 on the anniversary of accession .see Plin. ad.Traj. 52. 
 
 * Cf. Tac. Ifist. iii. 58 (Vitellius) " vocari tribus jubet, dantes nomina Sacra- 
 mento adigit." 
 
 5 Lex de imp. Vesp. 1 "foedusve cum quibus volet faoere lioeat." These 
 
X. THE POWERS OF THE PRINCEPS 846 
 
 procedure.^ This recognition of the federative power was not 
 earlier than the reign of the first Claudius,^ but had already 
 become a permanent element in the imperial authority by the 
 accession of Vespasian, The right to extend the pommivm of 
 the city, which dates also from the reign of Claudius, is also 
 found amongst the list of imperial prerogatives in 69 A.D.* 
 
 The Republican general had often followed up a suoqessf ul 
 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,* 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 civitaies,^ and 
 citizenship to Latin towns, while he may alter the nominal status 
 of a community by changing a mimicipium into a colony, or a 
 colony into a municipiwm.^ His right of conferring citizenship 
 on individuals was equally unquestioned,' and he might remedy 
 the defect of birth by giving ingermitas to a freedman.® 
 
 With the imperiwm too is obviously connected the adminis- 
 tration 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 
 iwperiwn, while his power of legal interpretation, although 
 
 powers are summed up by Dio Cassius liii. 17 (a.s imperators the Emperors have 
 the right) /taToX670us re iroietirBai, . , . To\i/M>vs re &vaipetaBai, xal dp^viiv 
 airivSecdai. ' p. 283. 
 
 ^ Dio Cass. Ix. 23 (after Claudius' conquest of Britain) i\j/ri(pl(TOiii tIls ffvfipdireis 
 airdffaSf 6aas B.v 6 K\a08tos ff Kal ol 6.vTL<rTp6n"qyoi aOrou Tp6s rivas troi'^crtavTati 
 Kvplas, u)S Kal Tpbs t^v ^ov\^ii t6v re dij/ioi' ehai, 
 
 * Lex de imp, Vesp. 15 "utique ei lines pomerii proferre promovere cum ex 
 republica oensebit esse, lioeat ita, uti liouit Ti. Claudio Caesari Aug(usto} Ger- 
 mailico." Cf. Tao. Ann. xii. 23. 
 
 « p, 240. " Gains Inst. i. 96. 
 
 " Gell. xvi. 13, 5. '• Gains Inst. iii. 72 and 73. 
 
 ' This was effected, either indirectly by the gift of the gold ring (,;«j 
 aureorvm anulorum), or directly by the fiction that the freedman was natalilMS 
 restitutua. See Dig. 2, 4, 10, 3 ; 40, 11, 2 ; Plin. ad Traj. 72 and 73. 
 
346 ROMAN PUBLIC LIFE chap. 
 
 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 out- 
 ward support of his authority in 23 B.C.,i continued to serve 
 the Emperors as the ostensible means by which all other magis- 
 tracies were subject to their control,^ and possessed an artificial 
 prominence from its employment as a means of dating the years 
 of their reign. Positively it conferred the sacrosanditas, which 
 had encompassed the Eepublican tribune,^ the right of approach- 
 ing 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.* But its 
 negative were now, as ever, of more value than its positive 
 powers. The Mercessu) made its possessor the moderator of 
 the state,* 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 condemlaed.^ The right of help {aiixilium) "^ 
 based on the appeal (appellatio) becomes also, as we shall see, 
 one of the means of establishing the first true appellate jurisdic- 
 tion which the E.oman world had seen. 
 
 (iii.) With respect to other Eepublican offices in which the 
 
 ' Dio Cass. xliz. 15 ; li. 19 ; liu. 32. See pp. 338, 340. 
 
 ^ Tac. Ann. iii. 56 "id summi fastigii vooabulum Augustus repperit, ne 
 regis aut diotatoris uomen adsumeret ac tamen appellatione aliqua cetera imperia 
 praemineret." 
 
 ' Dio Cass, xlix 15 Kal rb /hiJtc Ipyip /i'^re Xdyifi ti i^pij^eaBai- el Si ii.ii, rots 
 aiiTots t6v roLOurd tl dpdffavra iv^etrdiu oltTTep M. T(f dTjfidpxt^ ir^TaKTO, 
 
 * The additional rights granted to the Emperor in connexion with the Senate 
 (see p. 348) assume a right of intercourse with it. 
 
 " Dio Cass. liii. 17 (the tribunician power) SlSaal a^uri. rd re yiyvdfKva {i<t>' 
 kripov Tiy6s, B.v fi^ (rvveiratvutn, TraiJet;'. 
 
 * Tao. Ann. iii. 70 "recipi Caesar (Tiberius) inter reos vetuit . . . per- 
 stititque intercedere " ; xiv. 48 " credebaturque haud perinde exitinm Autistic 
 quam imperatori gloriam quaeri ut condemnatum a senatu intercessione tri- 
 bunicia morti eximeret " (Nero). 
 
 ' d/iiveiv (Dio Cass. li. 19) ; cf. Tac. Ann. i. 2 (of Augustus) "ad tuendam 
 plebem tribuuicio jure contentum. " 
 
£ THE POWERS OF THE PEINCEPS 347 
 
 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 ; ^ 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 Eepublican office, and 
 we might have expected that its vast powers combined with 
 its Republican traditions would have made it a valuable supple- 
 ment 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 Eepublican 
 sentiment ; while the fact that the assessment of the Eoman 
 people for the comitia and the army soon ceased to be necessary 
 made its absence scarcely felt. On the analogy of the tribunicia 
 poiestas, the powers of the office without the office itself were, 
 in the form of a cwa legwn et mwum, offered to Augustus, but 
 declined by him.^ 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.^ 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).^ His precedent was not followed because it 
 was unnecessary. The revision of the list of the Senate and 
 eguites — the only meaning that the cwa morum now had — was 
 established by consent as an admitted right of the Princeps,® and 
 even the power of creating Patricians came to be recognised as 
 one inherent in his office. This power had been conferred on 
 
 1 p. 340. 
 
 ' The statement of Suetonius (Auff. 27 " Reoepit et morum legumque regimen 
 aeque perpetuum ") is not borne out by tlie McniUTnentum Ancyranum or by 
 Augustus' titular designations. 
 
 ' Suet. Aug. 35 ; Mon. Anc. ii. 5 "consular! cum imperio lustrum solus 
 feci. " 
 
 * Dio Cass. Ixvii. 4 ti/oittis di Sid /Sioi/ tt/jutos 5t) xal ii6vos koX iSioiTuv xal 
 avTOKpaTbpav ix^tporor^STj. 
 
 ^ ib. liii. 17 Kal roi/s fj.h KaToKiyovai koX is tt]v linrdSa Kal h rb ^ovkev- 
 TiKdv, Tois 5^ Kal AiraXetipovffLV, Sirujs Siv aCirots Sd^j]. 
 
S48 ROMAN PUBLIC LIFE chap. 
 
 Caesar and Augustus by law ; Claudius and Vespasian exercised 
 it as censors ; ^ but, apparently without further enactment, thif! 
 power of ennobling, extinct since the beginning of the Republic ^ 
 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.* 
 
 (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 {rdaiionem facere) when the Senate 
 meets under the presidency of another magistrate.* In such 
 a meeting the Emperor as a rule only claims priority for one 
 item in a single sitting (jus primae relationis) ; hence we some- 
 times find, as a special privilege, the right of priority given him 
 for three, four, or five.^ The power which he possesses of divid- 
 ing the house upon his motion without debate (senatits consuUum 
 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 remitter^) ; and thirdly, 
 the privilege of ordering the Senate to meet under the presid- 
 ency of another magistrate. 
 
 The second special right has reference to the elections of 
 
 ' Tac. Ann. xi. 25 " Isdem diebus in numerum patriciorum adsoMt Caesar 
 (Claudius as censor) vetnstissimum quemque e senatu aut quibus clari parentes 
 fuerant . . . exhaustis etiam quas (familias) dictator Caesar lege Cassia et 
 princeps Augustus lege Saenia sublegere." Cf. Suet. Ollw 1 ; and for Vespasian's 
 censorship Vita Marci 1 " Annius Verus . . . adscitus in patricios ... a Ves- 
 pasiano et Tito censoribus." 
 
 « p. 14. 
 
 ' Vita Jvliani 3 "in patricias familias relatus" ; Macrini 7 "senatus . . . 
 Macrinum . . - in patricios allegit novum hominem." Cf. Dio Cass. Ixxviii. 17. 
 
 * Lex de imp. Vesp. 1. 3 " utique ei senatum habere, relationem facere, remit- 
 tere, senatus consulta per relationem discessionemque facere liceat." In 1. 7 we 
 find the right of the Princeps to summon the Senate ex mandatu. 
 
 ° Jus tertiae relationis ( Vita PrM 12), giMrtae ( Vita Pertinads 5), quintal 
 ( Vita Marei 6, Alexandri 1). 
 
X THE POWERS OF THE PEINCEPS 349 
 
 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 
 Republician magistrate of receiving names and excluding un- 
 qualified 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 candi- 
 dates whom he nominated was, at least in the early Principate, 
 limited.^ The practical effect of the Prince's noinination on the 
 election might be great, but its legal influence was nil.^ Com- 
 mendatio, 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.^ 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.* Magis- 
 trates, who had gained their position by this act of imperial 
 favour, were designated candidati Caesaris.^ The highest office 
 of all, the consulship, seems, at least in the early Principate, 
 never to have been awarded on a formal imperial recommenda- 
 tion ; 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.^ This 
 may have been a limitation of practice, not of theory, for the 
 
 ' Tao. Arm. i. 14 " oandidatos praeturae duodeoim nominavit (Tiberius), 
 numerum ab Augusto traditum, et hortante senatu ut augeret jure jurando ob- 
 strinxit se nou excessurum." 
 
 ^ This practical effect seems sometimes to have been obviated by the Emperor's 
 selecting his candidates for nomination by lot (Die Cass. Iviii. 20). See Mr. 
 Strachan- Davidson in Smith Diet, of Antiq, ii. p. 237. 
 
 ' Lex de imp. Vesp. 1. 10 "utique quos magistratum potestatem imperium 
 ourationemve cujus rei petentes senatui populoque Eomano commendaverit, 
 quibusque suffragationem suam dederit promiserit, eoriim comitis quibusque 
 extra ordinem ratio habeatur." Cf. Tao. Aym. i. 15 "sine repulsa et ambitu 
 designandos. " For the precedent set by Caesar's use of it see Suet. Caes. 41. 
 
 * Tao. Ann. i. 15 "moderante Tiberio no plures quam quattuor candidatoa 
 oommendaret, sine repulsa et ambitu designandos." 
 
 " e.g. praetor, tribunus, quaestor candidatus (Wilmanns Index pp. 551 ff. ). 
 
 ' Tao. Ann. i. 81 "plerumque eos tantum apud se professes disseruit, 
 quorum noniina consulibus edidisaet ; posse et alios profiteri, si gratiae aut 
 
350 ROMAN PUBLIC LIFE • chap 
 
 words of the law as we have it exempt no office from this im- 
 perial control, and it is certain that from the time of Vespasian 
 onwards the consulship too was subject to the commendatio.^ 
 
 The Princeps, according to the enactment which confers 
 powers on Vespasian, was dispensed from certain laws Qegibus 
 solutus).^ 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 
 Eepublican 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 ; ^ he could 
 manumit without the vindida * and. was not subject to the dis- 
 abilities of the Julian and Papian law.* 
 
 (v.) The separation of religious from political duties, which 
 had been a characteristic of the Republic, was continued theoreti- 
 cally 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 divinv/m,^ 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.^ "We have not, however, merely 
 the phenomenon of the civil assisting the religious arm, for the 
 
 mentis oonfiderent. " It may have been a person so .ippointed who inaccurately 
 describes himself as "per commendation(eni) Ti. Caesaris Augusti ab senatu 
 co(n)s(ul) dest(inatus) " (Inscr. Reg. Neap. n. 4762 ; G.l.L. ix. n. 2342). 
 
 ' G.l.L xiv. n. 3608 "hunc . . . Caesar Aug. Vespasianus iterum cos. fecit" ; 
 Plin. PoTiej. 77 (of Trajan) "praestare consulibns ipsum qui consules facit." 
 Mommsen (Staatsr. ii. p. 925) thinks that the change came with Nero. 
 
 " Lex de imp. Vesp. 1. 22 " utique quibus legibus plebeive scitis scriptum fuit, 
 ne divus Aug(ustns), Tiberiusve Julius Caesar Ang(ustus), Tiberiusqne Claudius 
 Caesar Aug(ustus) Germanicus tenerentur, iis legibus plebisque scitis imp(erator) 
 Caesar Vespasianus solutus sit." 
 
 ' Tao. Hist. i. 15 (Galba to Piso on the latter's adoption) "si te privatus 
 lege curiata apnd pontifices, ut moris est, adoptarem." 
 
 * Paulus in Dig. 40, 1, 14, 1. = Ulpian in Dig. 1, 3, 31. 
 
 ^ Dio Cass. liii. 17 ^v ■Jr6.aais rats Uptacyvvaii UpQcBai. 
 
 ' Lex de imp. Vesp.l. 17 "utique quaecnnque ex usu rei publioae majestateque 
 Aivinarnm . . . rerum esse censebit, ei agere facere jus potestasque sit." 
 
X THE POWERS OF THE PRINCEPS 351 
 
 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,^ 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.^ 
 When the Principate came to admit the principle of colleagueship, 
 only one of the Augusti was made chief pontiff,* and the associa- 
 tion of the highest religious and civil power continued until the 
 stole was rejected by the piety of Gratian.* 
 
 It is obvious that the attempt to keep the r61es 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,^ and when the jmsio principis speaks on a 
 question of burial law," 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 
 noinination or by his commendation to the electing body.' 
 
 § 2. Titles, Insignia, and Honows 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 
 
 ' p. 254. ^ Mommsen Staatsr. ii. p. 31. 
 
 ' Dio Cass. liii. 17. In the decrees to Maximus and Balbinua tla.e pontijicatvs 
 maximus is mentioned ( Vita 8), and it is possible that it was held by Ijoth these 
 emperors conjointly. * Zosimiis iv. 36. 
 
 " Suet. Dom. 8 " Incesta Vestalium virginum . . . varie ac severe coercuit : 
 priora oapitali supplicio ; posteriora, more veteri." 
 
 « Ulpian in Xli^. 11, 7, 8. 
 
 ' 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 quara me provexit Indulgentia tiia, vel auguratum vel septemviratum, quia 
 vacent, adicere digneris " 
 
352 ROMAN PUBLIC LIFE chap. 
 
 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,^ 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.^ It was above all a title which 
 tended to emphasise the continuance of the life of the Republican 
 government under the new rigime, and suggested a mental con- 
 trast, at once to the Emperor's position as the commander of his 
 legions, expressed in the title im/perator, and to that absolute 
 headship which, as exercised in family life at Rome, was 
 known as dominium.^ The name, indeed, of dominvs 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,* and Tiberius 
 insisted that he was dominus only to his slaves.^ 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 dominvs on 
 his coins.^ It is probable that these niceties of western nomen- 
 clature were always lost on the oriental mind. To it the 
 Principate is a monarchy, and Caesar, when he is not a god, is 
 either avTOKparoip or /3atriA,£i;s. 
 
 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 
 
 ' Cic. ad Alt. viii. 9, 4 " nihil malle Caesarem quam prlucipe Pompeio sine metu 
 vlvere"; odFam. vi. 6, 5 "esset hie qnidem (Caesar) olarus in toga et princeps." 
 Cf. Veil. ii. 124 " una tamen veluti luctatio oivitatis fait, piignantis cum (Tiberio) 
 Caesare senatus populique Komani, nt stationi patemae suocederet, illius, ut potius 
 aeqnalem civem quam eminentem lioeret agere principem. " 
 
 ^ Tao. Ann. iii. 63 (Tiberius says) "non aedilis aut praetoris aut oonsulis 
 partes sustineo, majus aliquid et excelsius a principe postulatur." 
 
 ' Dio Cass. Ivii. 8 (see note 5); Ovid Fasti ii. 142 "Tu (Romule) domini 
 nomen, principis ille (Augustus) tenet. " 
 
 * Suet. Aug. 53. 
 
 ° Dio Cass. Ivii. 8 ffetrTriri^s fJi^v tQv SoiJAwi/, airOKpdrujp Bk twv aTparittiTwv^ 
 Tuv 5^ St} \oltwv wptiKpirh dfit. Cf. Tac. Ann. ii. 87. 
 
 ' See Mommsen Staatsr. ii. p. 760. 
 
X TITLES, INSIGNIA, AND HONOURS OF THE PRINCEPS 853 
 
 the two J for while denoting no office, it signifies the possession 
 of an active and untrammelled imperivm. 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^) during 
 the later years of his life, and as a praenomen it was used by most 
 succeeding emperors.^ But it appears a second time in the titular 
 designation of the Princeps with its old Eepublican significance — 
 that of an appellation borne by a commander who had been 
 acclaimed after a victory.* 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, con- 
 sequently, after the first victory won under his auspices, he 
 appears as irnperator ii. 
 
 A more distinctive title of office is that oi proconsul. Although 
 it merely expresses the fact of a proconsulare im/perium, 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,* and was not borne even by that subordinate 
 partner on the throne (consors imperii), the holder of the proconsu- 
 lare imperium or tribv/nicia potestas, through whose assistance the 
 earlier emperors sometimes lightened the burden of their admin- 
 istration. 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 
 
 ' Caesar had been irnperator since his first salutation in Gaul ; but the right to 
 use the title as a nomen seems first to have been granted hira in 45 B.C. after the 
 victory of Mimda (Die Cass, xliii. 44 iKclvif rbre irpdirif re xal irp&Tov, Siairep n 
 Kiptov, wpoaiBeaav). It does not seem, however, that he employed it as a 
 praenomen, as is stated by Suetonius {Oaea. 76). Cf. p. 337. 
 
 2 Dio Cass. l.c. » p. 156. 
 
 * Dio Cass. liii. 16 Myovaros <Ss Kal irKeXbv n ij kotA ivBpdiTovs &v iveKMidri. 
 
 2a 
 
354 ROMAN PUBLIC LIFE chap. 
 
 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 suc- 
 cessors 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.^ 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 ; ^ 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.^ After the beginning of the third century the name 
 appears as nobilissimus Caesa/r, 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 Gerrmmicus, Pius, Felix, 
 were, even when transmitted, purely personal, although their 
 adoption was now reserved for the Emperor, and such designa- 
 tions 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.* 
 
 The order of the imperial titles admits of variations, but, as 
 finally fixed, was usually pontifex maximus, trihmida potestate 
 
 ^ Karlowa RechtsgeschichU 1. p. 508. 
 
 2 Vila L. Veri, 2. 
 
 ' Mommsen Staatsr. ii. p. 1140. 
 
 * App.B.O. ii. 7 oidi yd,p rolirde Kulirep oB<ri patriXevaiv cidis iir" &pxv^ S/ia 
 Tols S,\\ai! iiruvvidais, AXXi aby XP^"'/ A^^'S f(5e us ivrcMis 4irl /leylffTots Sij 
 liaprvpla ^i;</i£feTat : Vita Hadriani 6 " patris patriae nomen delatum sibi 
 
X TITLES, INSIGNIA, AND HONOURS OF THE PRINOEPS 355 
 
 (ii. III. etc.), imperator (ii. ill. etc.), consul (li. ill. etc.), censor (when 
 ttis office was assumed, as it was by Claudius, Vespasian, Titus 
 and Domitian), proconsul (a title adopted by Trajan and occupy- 
 ing the last place after the reign of Hadrian).'- 
 
 The usual insignia of the Princeps are those of a Republican 
 magistrate. Within the walls he wears the scarletstriped gown 
 {toga praetexta) ; outside them he may don the scaxletpahdamenl/wm. 
 But the laurel crown, which he might wear anywhere and at any 
 time,^ and the laurel-wreathed fasces ^ 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 * and viafores, 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,^ by the consuls and the colleges of 
 priests; his birthday and the days of his victories were cele- 
 brated as public festivals ; ' his statue and image are sacred and 
 may not be profaned even by juxtaposition with unclean things ; '' 
 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 
 
 statim, et iterum postea, distulit quod too nomen Augustus sero meruisset. '' It 
 was declined altogether by Tiberius (Suet. Tib. 26 and 67) and was not bome by 
 the transitory emperors Galba, Otho, and Vitellius. See Mommsen Staatsr. li. 
 p. 780. 
 
 ' See Mommsen Staatsr. ii. pp. 782-786. As typical instances we may cite an 
 inscription of Vespasian giving the praenomen imperatons : " Imp. Caesar. 
 Vespaaianus Aug, pontif. max. tribunic. potest, vi. imp. xiiii. p.p., cos. vi. desig. 
 vii. censor " (Wilmanns n. 866), and one of Caracalla showing the title proconsrd : 
 " M. Aurellius Antoninus Kus Felix Augustus . . , pontif. max., trib. pot. xviii. 
 imp. iiiL cos. uii. p.p. procos." (ib. n. 2868). Pater patriae appears sometimes 
 before, sometimes after consul. 
 
 ^ Dio Cass. xlix. 15. 
 
 ' On Gordian's revolt in Africa the laurelled /oscas were immediately assumed 
 (Herodian vii. 6 ; Vita Maxirmni 14). 
 
 * Originally twelve, later twenty-four (Dio Cass. Ixvii. 4). 
 
 " Dio Cass. li. 19. « ib. 
 
 ' For the reverence to the statue of the deified Emperor see Suet. Tib. 58 
 ' ' genus calumniae (so. majestatis) eo processit ut haeo quoque capitalia essent : 
 circa Augusti simulacrum servum ceoidisse, vestimenta mutasse, nummo vel 
 annulo effigiem impressam latrinae aut lupauari iutulisse." For the right of 
 asyVu/m attaching to the living Emperor's image see Tac, Arm. iii. 86 ; Gains 
 Inst. i. 53. 
 
356 ROMAN PUBLIC LIFE chap. 
 
 earth.^ Coins, whether struck by the Senate or the Emperor, 
 show only his head or that of members of the imperial house. 
 
 The dmnus 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 Koman idea of the umty of the household 
 even led to the inclusion of the name of Caesar's relatives in the 
 soldier's oath of fealty. ^ Their eflBgies, 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.^ 
 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 jwoentuiis).*' 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.* The name Augusta 
 came, however, to be employed merely as an honorary designa- 
 tion, to be borne by such a woman as Marciana, the unaspiring 
 sister of Trajan.* A stranger title was developed by the ambition 
 
 1 TertuU. Apol. 28 " citius . . . apud vos per omnes deos quam per unnm genium 
 Caesaris pejeratnr." In the official oath taken by the magistrates of Salpensa and 
 Malaca the deified Caesars and the genius of the living Caesar* come between 
 Jnpiter and the di Pereato. (Bruns Monies.) 
 
 ^ On Seneca's question with reference to Agrippina (69 A.D. ) "an militi 
 imperanda caedes esset," the answer is *' praetorianos toti Caesarum domni 
 obstrictos . . . nihil . . . atrox ausuros " (Tac. Ann. xiv. 7). Caligula speci- 
 fically included the names of his sisters in the sacramenhim (Dio Cass. lix. 9). 
 
 •* Mommsen Staatsr. ii. p. 831. 
 
 ^ Mon. Anq/r. iii. 5 ; Dio Cass. lix. 8. 
 
 * The name Augusta as assumed by Victorina in Gaul (a.d. 268) certainly 
 meant that .she claimed to be Empress. ' Plin. Paneg. 84. 
 
X TITLES, INSIGNIA, AND HONOURS OF THE PRINGEPS 357 
 
 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 castrorvm). 
 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 Eoman 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.^ 
 
 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."^ Yet, although 
 the entowage of the early Principes was simplicity itself, the 
 stately life of the Republican noble had already furnished pre- 
 cedents 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 ; ^ 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 amid of the Princeps were 
 those "received at court," and were divided into friends of the 
 first and second "audience."* 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 
 
 ' Tac, Ann. iii. 49-61. 
 
 =• Gibbon oh. iii. 
 
 ' Seneca de Ben. vi. 34, 2 " Apud nos primi omnium Gracchus et mox Livius 
 Drusus instituerunt segregare tiirbam suam et alios in seoretum reoipere, alios cum 
 pluribus, alios universos. Habuerumt itaque isti amicos primos, habuerunt 
 secundos, numquam veros." 
 
 * Seneca de Glem. i. 10 "eohortem primae admissionis " ; Vita Alex. 20 
 " moderationls tantae fuit . . . ut amicos non solum primi aut secundi loci sed 
 etiam inferioris aegrotantes viseret. " 
 
358 ROMAN PUBLIC LIFE chap. 
 
 consisted of senators or knights, he selected a group for a special 
 journey,^ and employed them as delegates in matters adminis- 
 trative, 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,^ but it was not necessary that there 
 should be a Princeps. Hence there was no institution such as 
 the Eepublican interregnum to fill up the gap left by the vacancy 
 of the throne,* and the fact that such gaps did occur in the 
 history of the Principate shows that the possibility of govern- 
 ment 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 ofiice, but about the 
 nature of the office which he assumes ; * and, although on the 
 accession of his successor. Gains 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 difierent, both in form and in 
 matter, from those made to Emperors of the first.^ 
 
 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 power- 
 lessness of this sovereign is of the very essence of the history of 
 
 ' Hence such titles as "comes divi Hadrian! in orients,'' "comes Imp. 
 Antonini Aug. et divi Veri bello Germanico " (Wilmanns nn. 1184, 637). 
 
 ^ p. 147. 
 
 ' Interregnum might te used metaphorically of the interval between the death 
 of one Princeps and the accession of another. See Vita Taciti 1. 
 
 * Tao. Ann. i. 12 "dixit forte Tiberius se ut non toti rei publioae parem, ita 
 quaecumque pars sibi mandaretur, ejus tutelam suscepturum." 
 
 » p. 343. 
 
X CREATION OF THE PRINCIPATE 359 
 
 the Principate. As a rule, all that it can do is to recognise an 
 imperium already established by the army, whether this estab- 
 lishment 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.^ 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.^ 
 
 Yet although the history of the Empire furnishes an un- 
 paralleled 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 Eome, 
 and even in the third century was welcomed with relief by an 
 army sick of its own lawless violence.^ 
 
 But whether we lay more stress on the de facto or the de jv/re 
 element in the act of election, we must admit that the elective 
 
 1 Henzen Act. Fr. Aro. p. 64. Hadrian, after his salutation ty the soldiers, 
 wrote to the Senate that he had heen jyraepropere addressed as impeirator ( Vita 
 Had/riam 6). Pertinax, after his appointment had heeu accepted by the 
 praetorian guards, laid down his power in the Senate and was elected again (Bio 
 Cass. Ixxiii. 1). 
 
 2 Suet. Vesp. 6. 
 
 ' Vita Taaiti 2 (after the murder of Aurelian) "exercitus, qui creare im- 
 peratorem raptim solebat, ad senatum literaa misit . . . petens ut ex ordine suo 
 prinoipem legerent. Verum senatus, soieus lectos a se principes militibus non 
 plaoere, rem ad milites rettnlit, dumque id saepius fit, sextus peraotus est mensis." 
 
360 ROMAN PUBLIC LIFE chap. 
 
 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 proconsula/re imperiiim,, the tribunicia potestas, or 
 both. It was thus that Augustus at difierent times designated 
 Agrippa and Tiberius for the throne,^ that Tiberius pointed to 
 Germanicus and Drusus as his destined successors, that Nerva 
 nominated Trajan, Trajan Pius, and Pius Marcus Aurelius.^ 
 Although such a position is described as one of coUeagueship 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 aU the Caesarian provinces,^ 
 unless these rights were conferred by special mandate, as they 
 were on' Tiberius during the closing years of Augustus' life ; * 
 nor had the colleague, although in possession of an independent 
 imperivm, any right to triumph, except by the will of the 
 Princeps,^ for his victory had been due to legions which had 
 
 • In 13 B.C. Agrippa received tribunicia potestas for five years (Dio Cass, 
 liv. 12). For Tiberius' claims see Tao. Arm. i. 3 "filius, collega imperii, consors 
 tribuniciae potestatis adsumitur." 
 
 ^ Tao. Ann. i. 14 (Tiberius on his accession, a.d. 14) "Germanico Caesari 
 proconsulare imperium petivit " ; iil 56 (a.d. 22) " Tiberius mittit literas ad 
 senatum quia potestatem tribuniciam Druso petebat." For Trajan see Plin. 
 Paneg. 8 "ante pulvinar Jovis optimi maximi adoptio peracta est . . . simul 
 filias, 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"; TUa'Marai 6 (Marcus before he came to the 
 throne) "tribunicia potestate donatns est atque imperio extra urbem pro- 
 consulari." 
 
 ' Mommsen Staatsr. ii. p. 1158. 
 
 * Veil. ii. 121 "cum . . . senatus populusque Romanus postulante patre 
 ejus, ut aeqnum ei jus in omnibus provinciis exercitibusque esset quam erat 
 ipsi, deoreto oomplexus esset." 
 
 ' 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 Piinceps (Tac. Ann. L 58, Germanicus in a.d. 15, "exercitum 
 reduxit nomenque imperatoris auctore Tiberio accepit "). 
 
X TRANSMISSION OF THE PRINOIPATE 361 
 
 taken the sacramentum to another. The name imperator was not 
 borne by this assistant to the throne unless it was specially con- 
 ferred, as it was by Vespasian on Titus and by Hadrian on 
 Antoninus Pius.^ It is uncertain whether the possessor of the 
 Mhvnicia potestas and of the proconsula/re im/periwn in its lower 
 form had to have these powers reconferred on his accession to 
 the throne. In the case of the imiperiwm, 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 con- 
 tinuity 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 
 (paMmonivm) which accompanied the Principate. Gains at- 
 tempted to employ this mode of designation in favour of his 
 sister Drusilla,^ and Tiberius showed either that he had left the 
 succession open, or that he contemplated a joint Augusta te, by 
 making his great -nephew Gains and his grandson Tiberius 
 Gemellus joint heirs.* 
 
 Adoption was as effective a means of emphasising one's in 
 tentions. Such an adoption by the Princeps might be by testa- 
 ment, but it need not follow the legal forms, and required only 
 a public announcement through a emtio whether in the Forum, 
 the Senate, or the camp.* 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,® 
 
 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.' This 
 
 1 Mommsen Staatsr, ii. p. 1154. 
 
 ' Suet. Gams 24 " (Gaius DrusUIam) heredem quoque bonorum atque imperii 
 aeger institult." 
 
 ' ib. 14. Compare Domitiau's contention after the death of Vespasian 
 " reliotum se partioipem imperii sed fraudem testamento adhibitam " (Suet. 
 Dom. 2). 
 
 < Tao. Hist. i. 15 (see p. 350) ; i. 17 (of the adoption of Piso by Galba) "con- 
 sultatum inde pro rostris an in senatu an in castris adoptio nuncuparetur " ; Suet. 
 Oalba 17 "(Galba Pisonem) perduxit in oastra ac pro oontione adoptavit." 
 Nerra proclaima on the Capital his adoption of Trajan (Dio Cass, Ixviii. 3), 
 
 » Bee p. 360, n. 2. « p. 354. 
 
362 ROMAN PUBLIC LIFE chap. 
 
 was a constitutional recognition of a principle of designation 
 whicli 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 Tunms 
 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 de- 
 thronement, tyranny by death or posthumous disgrace; and 
 although such expulsions, executions, and censures were practi- 
 cally 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.i Deposition was followed by death, and then 
 came the condemnation of the reign, one that might follow even 
 
 ' Plut. GaUa 7 (a messenger announces that) 6 S^iios Kal ij aiyKKifros airroxpi- 
 Topa rbv TdX^av avayopeOffetev : Herodian ii. 12 (the Senate) ^ipi^eraL rbv fih/ 
 ('lovXiavbv) ivaipeBijiiai, dirodaxBijyaL 8i iibvov airoKpiropa rbv ^otnjpov : Vita 
 
X ABROGATION OF THE PRINCIPATE 363 
 
 when the death of the tyrant had not been directly ordered by 
 the government.! In its extremest form this was a condemna- 
 tion of the memory (damnatio memoriae) of the late ruler on the 
 ground that he was a traitor (perduellis).^ His acta were re- 
 scinded, 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.^ 
 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 two- 
 fold form of an oath to observe the acta of the dead Emperor * 
 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,^ 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 Comiiia, 
 and the Senate 
 
 (1) The Magistracy 
 
 As the Republican constitution continued in form unimpaired, 
 so its most essential feature, the magistracy, although subjected 
 
 Maximini 15 "Ubi haec geata sunt (i.e. after the recognition of the Gordians) 
 seuatus magis timens Maximinum aperte ac llbere hoates appellat Maximinum et 
 ejus filiuin." 
 
 ' This was the case with Caligula, although the damnatio was incomplete. 
 See Suet. Claud. 11 "Gaii quoque etsi acta omnia resoidit, diem tamen necis, 
 quamvis exordium principatus sui, vetuit inter festos referri." 
 
 ^ The deposed Nero was thus treated as a tractor (Suet. Jfer. 49 " codicillos 
 praeripuit legitque se hostem a senatu judicatum et quaeri ut puniatur more 
 majorum "). 
 
 ^ The acta of Tiberius were not sworn to (Dio Cass. lix. 9), although his 
 memory was not condemned. His reign appears amongst the legitimate pre- 
 cedents for the authority of Vespasian in the lex de imperio, those of Gaius, Nero, 
 Galba, Otho, and ViteUius being omitted. 
 
 * Dio Cass. Ivii. 8 (Tiberius) iirl rais toC AiyoiffTov irp&fyn rois re dWovs 
 TrdvTas SipKov Kal airbs H/ivve. 
 
 " Tiberius characteristically enough would not have his acta sworn to during 
 his lifetime (Tao. Ann. i. 72 ; Suet. KS. 67), and some thought the motive was 
 " ne mox majore dedecore impar tantis honoribus inveniretur " (Suet. I.e. ). His 
 objection to his own deiiication was interpreted by some as a sign "degeneris 
 animi " (Tac. Ann. iv. 38). 
 
S6i ROMAN PUBLIC LIFE chap. 
 
 to modification, was still an integral element in the administra- 
 tion of Eome 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 curms honorwm, and one of the steps in the 
 certiis ordo magistratwwm. The minimum age for the quaestorship 
 was now twenty-five years,^ for the praetorship thirty,^ and two 
 new qualifications were necessary before the quaestorship could 
 be held. One was membership of the vigintivirate, the aggre- 
 gate of lower magistracies to which the sex-et-mgintiviratus of 
 the Republic had now shrunk.* The other, perhaps originally 
 a practical rather than a legal qualification, was the tenure of 
 the military tribunate,* the latter being held generally ^fter 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 yoimg 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 (Jegatus 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 
 
 ^ Dio Cass. lii. 20. Here it is made the age for entrance into tie Senate ; 
 tut the completion of the twenty-fifth year is meant. Of. Quintil. Inst. Or. xii. 
 6, 1 "qnaestoria aetas." 
 
 ^ Dio Cass. l.c. Dispensations from these rules might he given hy the Senate, 
 in accordance with the jus liberorum (" ut singuli anni per singnlos liberos re- 
 mittantur " Dig. 4, 4, 2), or to members of the imperial house (Tac. Anri. iii. 
 29 "Per idem tempus (a.d. 20) Neronem e liberis Germanici jam ingressum 
 juventam (Tiberius) commendavit patribus, utque munere capessendi vigintiviratus 
 solvoretur et quinquennio maturius quam per leges quaesturam peteret , , . 
 postulavit "). 
 
 ' Dio Cass. liv. 26 ; cf. Tac. Ann. iii. 29, quoted in the last note. 
 
 * 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. 
 
X THE MAGISTRACY OF THE PRINOIPATE 366 
 
 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 un- 
 wavering respect to the sacramentvm — of men to whom Caesar 
 was not Princeps but Imperator. 
 
 With respect to the steps in office which followed the quaestor- 
 ship, a further change was due to the unwillingness of candi- 
 dates to burden themselves with the aedileship, now that its 
 powers of bribery were of no avail, and with the now undis- 
 tinguished tribunate of the Plebs. It was laid down that, while 
 a Patrician might advance immediately from the quaestorship to 
 the praetorship, a Plebian must hold one of the two aedileships 
 or the tribunate.^ An exemption from this lengthy course could, 
 however, be given by an exercise of the imperial right of adledio. 
 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 adledio also had the effect of qualifying for the 
 magistracy immediately above the rank thus artificially assigned. 
 One who was adkctus inter quaestorios was qualified for the 
 tribunate, one adledus inter trihmicios for the praetorship, and 
 one adledus inter praetorios for the consulship. The consulship 
 was amongst civic magistracies still the crown of a political 
 career ; hence the rarity of adlection inter consuhres? 
 
 A smaller honour was the conferment by the Senate, generally 
 on the proposal of the Princeps, of the omamenta of a magistracy 
 (qitaestoria, praetoria, cmmlaria) 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,^ but merely the privilege of 
 wearing the insignia of an office at festivals and on other public 
 occasions ; * 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.^ 
 
 1 Dio Cass. lii. 20 ; Mommsen Staatsr. i. p. 565. 
 
 ^ Its use by Macrinus in the third century excited opposition (Dio Cass. Ixxviii. 
 13). See Mommsen Staatsr. ii. p. 942. 
 
 ' Dio Cass. liv. 19 (of Tiberius in 16 B.o.) icTparir/'n''^ y^P, Kalirep t6.s (rrpa.- 
 rrjyiKli.! n/iis (xwv (Tiberius had received the ornamenta praetoria in 19 B.C., 
 see c. 10) ; c. 32 Druaus dyopap6/ios . . . xatwep tcIs arpaTtiyiKiis ti/ii4s Ixwc 
 airedclxSv • cf. 0. 22. 
 
 * Suet. Aug. 35 ; Dio Cass. Iviii. 12. ' Mommsen Staatsr. i. p. 458. 
 
366 ROMAN PUBLIC LIFE chap. 
 
 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 ^ and of the watch,^ or to provincial procurators.^ Claudius 
 granted it to imperial freedmen,* and we find that even senators 
 excluded from the curia were sometimes left the ornamenta of 
 their rank.^ 
 
 The permission to use the ornaments of a triumph (ornamenta 
 trivmphalia) 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,^ 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.^ The triumphal insignia might, however, be 
 granted by the Senate on the proposal of the Princeps.* 
 
 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 Eepublic, with the exception that the jus jwrandum 
 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.* 
 
 ' The consular insignia were granted to Nymphidius and to Crisplnus under 
 Nero (Tao, Ann. xv. 72 ; rvi. 17) ; the praetorian insignia to Sejanus and to Macro 
 under Tiberius (Dio Cass. Ivii. 19 ; Iviii. 12). 
 
 ^ Quaestorian insignia were granted to Laco under Tiberius (Dio Cass. Iviii. 12), 
 
 ' Tac Ann. xii. 21 "consularia insignia Ciloni (procurator of Pontus) . . . 
 deoemuntur " ; Suet. Glaud. 24 " ornamenta consularia etiam procuratoribus 
 ducenariis indulsit." 
 
 * As the praetorian insignia to Pallas, the quaestorian to Narcissus (Tac. Ann. 
 xii. 53 ; xi. 38). Cf. Suet. Claud. 28. 
 
 ■^ Snet. Aug. 35 (Augustus) "qnosdam ad excusandi se vereoundiam compulit : 
 servavitque etiam exousatis insigne vestis et spectandi in orchestra epulandique 
 publioejus." ^ p. 156. 
 
 ' In an exceptional case, such as Junius Blaesus' command in Africa, the pro- 
 consul might be saluted imperator on the permission of the Princeps (Tao. Ann. 
 iii. 74), aud the first condition of a triumph be fulfilled. But this incident, dating 
 from A.D. 22, was the last of its kind on record. 
 
 ' Suet. Aug. 38 " super triginta ducibus justos triumphos et aliquanto pluribus 
 triumphalia ornamenta decernenda curavit"; Wilmanns n. 11451. 19 "senatus 
 . . . triumphalibus ornamentis honoravit auctore imp. Caesare Augusto Vespasi- 
 ano " ; Index p. 609. 
 
 ' 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 
 
X THE MAGISTRACY OF THE PRINCIPATE 367 
 
 If we turn now to the individual ofiBces, we find that the 
 CONSULS are still the officially recognised heads of the Eepublic 
 and of the Senate. On the suspension of the Principate they 
 are the representatives of the state, ^ 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,^ and it was by the surrender of his dagger to a 
 consul that the abdication of Vitellius was efiected.* 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.* 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 acljpd as its com- 
 missioners. 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 contri- 
 buted to this end ; for the increase in the number of occupants 
 would lessen the pecuniary burden imposed by the celebration 
 of games.^ Even the half-yearly consulships of the early 
 Principate become in course of time very infrequent, and we 
 
 renewed during the triumvirate (Dio Cass, xlvii. 18), the formula running se 
 nihil contra acta Caesarris facbwrum. For the obligation as continued in the 
 Principate of. p. 363. 
 
 ^ Herodian (ii. 12), with reference to the downfall of Didius Julianus, speaks 
 of the consuls oX t4 T9[i 'Piiiiijs Siomeiv eldSoffiv dirrjvlKa ftc Ttt ttjs /SoiriXeias 
 lieriapa, v- " PI"*- <?«'*« 8. » Tao. Rist. iii. 68. 
 
 * Plin. Paneg. 77 "comitia consulum obibat ipse (Trajanus) ; tantum ex 
 renuntlatione eorum voluptatis quantum prius ex destinatione capiebat . . . 
 Adibat aliquis ut principem ; respondebat se consulem esse." 
 
 ' 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. Ivi. 46 ; lix. 20). 
 
368 ROMAN PUBLIC LIFE ohap. 
 
 subsequently find a tenure of but four or two months.^ Those 
 appointed for 1st January were ordinarii, tbe others mffedi,^ 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 stiU maintaining itself in the time of Hadrian.^ The reason 
 for this expansion of their numbers was their utility for the 
 enlarged jurisdiction of the period. The Republican functions 
 of the praetor wlanus and the praetw peregrinus continued, 
 until those of the latter became extinct, perhaps soon after the 
 conferment of citizenship on the whole Eoman world by Cara- 
 calla (212 a.d.);* while other praetors were guides of the 
 guaestimes perpetvae, until the disappearance of these commissions 
 towards the close of the second century.^ But new spheres of 
 extraordinary jurisdiction claimed the attention of others. Thus 
 Claudius instituted two praetors for adjudication on trusts 
 (Jidei commissarii),^ Nerva one for the decision of cases arising 
 between the fiscus and private individuals (fiscalis),'' and Marcus 
 Aurelius another for the granting, and perhaps for the control, 
 of guardians {tutelwris)? For a short time the administration of 
 the aerarimn was also in the hands of praetors.® 
 
 Most of the specific functions, which the AEDILES had exer- 
 cised during the EepubUc, now passed to other hands or were 
 shorn of their importance. The history of the later Eepublic 
 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 praefec- 
 ture of the city, but they still destroyed books condemned by the 
 
 ^ See Mommsen Slaatsr. ii. pp .84-87. The climax was readied with twenty- 
 five consulships in a single year (189 a.d.) under Commodus (Dio Cass. Ixxii. 12 ; 
 Vita Oommodi 6). 
 
 ^ Vita Aleseandri 43. ' Pompon, in Dig. 1, 2, 2, 32. 
 
 * Marini Atti Arvali p. 784. 
 
 " Dio Cassius, lii. co. 20, 21 (speech of Maecenas), may mean to imply their 
 existence in his own time. Geib {Cfriminalprocess pp. 392-397) assigns their dis- 
 appearance to the end of the first century. 
 
 8 Pompon, in Dig. 1, 2, 2, 32 "divus Claudius duos praetores adjeoit qui de 
 fidei commisso jus dicerent, ex quibus unum divus Titus detraxit : et adjecit divus 
 Nerva qui inter fiscum et privates jus dioeret." ' See last note. 
 
 ' Vita Mara, 10 " praetorem tutelarem primus fecit, cum ante tutores a con- 
 snlibus poscerentur, nt dUigentius de tutoribus traotaretur." 
 
 » See § 5. 
 
X THE MAGISTRACY OF THE PRINCIPATE 369 
 
 Senate,^ and attempted to carry out the sumptuary laws.^ The 
 cura whis still entailed on them the duty of keeping clean the 
 streets of Rome ^ and a supervision over places of public resort.* 
 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 ^ — and the special 
 civil jurisdiction of the curule aediles still continues.* 
 
 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 Augustvis.'' For a time two quaestors had the, 
 guardianship of the aerariv/m,^ and others were in the public 
 provinces the financial and judicial assistants of the proconsuls.^ 
 Four more were assigned to the consuls, two to each, as their 
 agents and assistants ; ^^ while the Princeps himself employed 
 two, commended by himself (quaestores Augusti, qvaestores ccmdidati 
 prmcipis), chiefly for the purpose of reading his despatches to the 
 Senate." During the reign of Claudius a step was taken which 
 " put up the quaestorship for sale," '^ 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,^^ a 
 
 1 On the condemnation of the history of Ctemutiiis Cordns in a.d. 25 "lihros 
 per aediles oremandos censuere patres " (Tao. Arm. iv. 35). 
 
 » Tao. Arm. iii. 52-55 (A.D. 22). 
 
 ' We hear of Vespasian during the reign of Caligula ir/opavofio^ivTis re . . . 
 Kal T^s TiSi' (rrevwTwv KaBapeidrriTos iiri/ieXoviidyov (Dio Cass. lix. 12). Cf. Suet. 
 Vesp. 5. 
 
 * Tac. Ann. ii. 85 (a.d. 19) " Vistilia praetoria familia genita lioentiam stupri 
 apud aediles vulgaverat." 
 
 ' ib. xiii. 28 (A.D. 56) "oohibita artius et aedilinm potestas statutumque 
 quantum ourules, quantum plebei pignoris caperent vel poenae inrogarent." 
 
 ' Gains Inst. i. 6 (of the jus edMiendi) " amplissimum jus est in ediotis duorum 
 praetorum . . . item in ediotis aedilium ourulium." Their edict was codified 
 under Hadrian, and appears in Dig. 21, 1. 
 
 ' 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. 
 
 8 See § 5. ' See chap. xi. 
 
 w The practice first began in 38 B.C. (Dio Cass, xlviii. 43). Cf. Tao. Ann. xvi. 
 34 "Turn ad Thraseam in hortis agentem quaestor oonsulis missus." They were 
 selected by the consuls themselves (Plin. Ep. iv. 15, 8). 
 
 1' Dig. 1, 13, 1, 2 and 4 "sane non omnes quaestores provincias sortiebantur, 
 verum exoepti erant candidati prinoipis . . . qui . . . epistulas ejus in senatu legunt. " 
 
 " Tao. Ann. xi. 22 (a.d. 47) "quaestura . . . velut venundaretur." 
 
 IS The obligation imposed in 47 was modified in 54 a.d. (Tao. Ann. xi. 22 ; 
 xiii. 5), but was renewed under Domitian (Suet. Dom. 4). 
 
 2b 
 
370 KOMAN PUBLIC LIFE chap. 
 
 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 spec- 
 tacles, the cost of the games given by the others being defrayed 
 from the Jiscus.^ 
 
 The TRIBUNES OF THE Plebs were not colleagues of the 
 Princeps, for the trihwnicia 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 Prineipate. Like the office itself, 
 -however, they were but a shadow of thos.e of the Republic.^ 
 The intercessio against decrees of the Senate might be attempted 
 when unimportant matters, such as the right to scourge actors, 
 were under discussion,' or might be employed as a warning to 
 the Senate that the Princeps should be consulted on the business 
 in hand.* In higher matters of state its exercise might mean 
 danger or death to the tribune who mistook the fictitious for 
 the real Eepublic, or who, recognising the tyranny, chose to 
 brave the anger of the Emperor.* The right of auxilium was still 
 exercised against a praetor in 56 A.D.,^ and appealed to by an 
 Emperor in 69.' But this, too, soon disappeared to leave no trace. 
 In the early Prineipate the tribunes seem to have possessed some 
 
 ' Vita Alexandri 43 "quaestores candidates ex sua pecunia jussit munera 
 populo dare . . . aroarios vero instituit, qui de area fisci ederent munera eademque 
 parclora." 
 
 '•* The tribunate is to the younger Pliny " inanis umbra et sine honore nomen " 
 (Bp. i. 23). 
 
 * Tao. Ann. i. 77 (a.d. 15, on the proposal of jiis mrgarum in histriones) 
 "interoessit Haterius Agrippa tribunus plebei iucrepitusque est Asinii Galli 
 oratione, silente Tiberio, qui ea simulacra libertatis senatni praebebat." 
 
 ^ Tac. Hist. iv. 9 (a.d. 69, on the praetors of the aerarium announcing a 
 deficit) "cum perrogarent sententias consules, Voloatius TertuUinus tribimus 
 plebis interoessit, ne quid super tanta re prinoipe absente statueretur. " This is 
 the last recorded instance of the intercessio (Momms. Staatsr. ii. p. 309 n. 1). 
 
 ^ Tac. Ann. vi. 47 [53] (in A.D. 37 a woman was accused of majestas) " qua 
 damnata cum praemium accusatori decemeretur, Junius Otho tribunus plebei 
 interoessit, 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). 
 
 , * ib. xiii. 28 " inter VibuUium praetorem et plebei tribuuum Antistinm ortum 
 certamen, quod immodestos fautores histrionum et a praetore in vincla ductos 
 tribunus omitti jussisset." 
 
 ' Tac. Sist. ii. 91 (Vitellius, when Emperor, attacked by Helvidius Prisons in 
 the Senate) " commotus . . . non tamen ultra quam tribunos plebis in auxilium 
 sprctae potestatis advocavit." 
 
X THE COMITIA OF THE PRINCIPATE 371 
 
 right of summoning civil cases from the Italian towns to Rome,^ 
 probably through an exercise of the veto ; and, although their 
 criminal jurisdiction had disappeared with the comiiia, they 
 retained some power of inflicting fines (mullae), which was limited 
 during the reign of Nero.^ There is also evidence that they still 
 possessed the right of veto in civil jurisdiction.^ Amongst posi- 
 tive 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 Jumorvm,* and sometimes 
 to more drastic measures such as the selection of ex-quaestors by 
 lot under Augustus,^ or the reception of members of the eques- 
 trian order under Claudius.^ Yet, with all its disadvantages, 
 the tribunate survived the Principate, and tribunes are named in 
 imperial despatches of the fourth century.'' 
 
 (2) The Comiiia 
 
 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.^ 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 
 
 ' In A.D. 56 fhey were fortidden " vocare ex Italia cum quibus lege agi posset " 
 (Tao. Ann. xlii. 28). See Appendix. ^ Tao. I.e. 
 
 ' Juvenal vii. 228 "Earatamen merces, quae ooguitione tribuni J. on egeat." 
 The words doubtless mean " wMoh 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. 
 
 ■1 p. 365. ^ Dio Cass. liv. 26. " ib. Ix. 11. 
 
 ' e.g. Cod, 6, 60, 1 (a.d. 319) "Imp. Constantinus A. consulibus, praetoribus 
 tribunis plebia senatui salutem." 
 
 ' Suet. Aug. 40 " Comitiorum quoque pristinum jus reduxit." 
 
372 ROMAN PUBLIC LIFE chap. 
 
 comitia had been transferred wholly to the Princeps ; for to him 
 belonged the rights of declaring war, of making peace, and of 
 forming alliances j^ while the criminal jurisdiction which the 
 people exercised at the end of the Eepublic was no longer 
 necessary, for while the more definite portion of it was handed 
 over to the quaestiones,^ 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.^ 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 ; * 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,' the formal renuntiatio of 
 the successful candidates (an integral part of the election) ^ still 
 continued to be made to the people down to the third century.' 
 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 con- 
 trol 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.* There can be little question, how- 
 ever, that in the later Principate the consular, like all other, 
 
 1 p. 344. 
 
 2 Dio Cass. Ivi. 40 (Augustus) ix . . . toO S^fxov rb SianpLTov iv rats Siayvii- 
 (TefTiv es T^v tCov dtKaa-TTjpitav AKpl^eiav /ieratrr^cras. 
 
 ' e.g. the Julian laws passed by Augustus _m the concilium plMs, the lex Junta 
 Norbana of the reign of Tiberius, plebiscita of Claudius. The last known lex is 
 an agrarian law of Nerva {Dig. 47, 21, 3, 1). 
 
 * Dio Cass. liii. 21 (when the election was entrusted to the people, Augustus) 
 ^jre/iieXetTO Sttois ii.ijr' avciriT-qSaoi /i-^r' eK vropaKeXeiitreus 1) Kal SeKairfwD airo- 
 SeiKviiiivTOi. Cf. Tao. Ann. i. 15 "potissima arbitrio prinoipis, quaedam tamen 
 Studiis tribuum fiebant." 
 
 * Tao. Ann. i. 15. The change was, we are told by Velleius (ii. 124), in 
 accordance with the instructions of Augustus. 
 
 " p. 188. 7 Dio Cass. Iviii. 20. 
 
 " p. 349. In O.I.L. wi. 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 celebraus omnem inlimae plebis nimorem in theatro ut spectator in 
 circo ut fautor adfoctavit "). On the othf-r hand, we have ai senatu destinalus in 
 
X THE SENATE OF THE PEINOIPATE 873 
 
 elections were vested in the Senate. The survival of the comitia 
 into the third century, whether for the purpose of the remmtiaiio 
 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.^ 
 
 (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 Eepublic, 
 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 Ee- 
 public, chiefly through the magistracy, the tenure of the quaestor- 
 ship 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,^ 
 the principle was something more than a mere theory. But we 
 shall see that he often gave the lattts elavus which admitted to 
 the senatorial order; we have seen that he advanced to the military 
 tribunate, which became one of the qualifications for the quaestor- 
 ship ; * he might also have exercised an influence in the formal 
 nomination of candidates for this ofiice ; while his right of adlectio,^ 
 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. ^ The 
 
 the inscription quoted on p. 349 n. 6. Dio Cassias (lix. 20), in speaking of the 
 temporary restoration of popular elections by Caligula, mentions them in con- 
 nexion with the consulship. 
 
 1 Dio Cass, xxzvii. 28. 
 
 2 p. 369. ^ p. 364. ' p. 365. 
 
 5 p. 364. Hence the expression "nondum senatoria aetate" (Tao. Ann. xv. 
 28 ; Eist. iv. 42). 
 
374 ROMAN PUBLIC LIFE chap. 
 
 census required, though it varied from time to time during the 
 reign of Augustus, was finally fixed at a million sesterces.^ 
 IngenuUas was required — Claudius even demanded free birth 
 through three generations ^ — and it was counted one of the abuses 
 of tyrannical rule when the favour of Emperors admitted freed- 
 men into the Senate.* For a time the council maintained its 
 mainly Boman character, but " new men " from Italy and the 
 provinces crept in with the censorships of Claudius and Vespasian,* 
 and the former Emperor even granted admission to the Gallic 
 Aedui, perhaps by an employment of his right of adledio.^ 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,® a 
 quota that was changed by Marcus Aurelius to one-fourth.^ 
 
 Eemoval from the Senate belonged to the Emperor either as 
 censor, when he exercised the discretionary moral judgment 
 which had been associated with the Eepublican lectio,^ or in 
 virtue of that power of revision which, as we have seen, became 
 associated with the Principate.* The chief grounds of exclusion 
 were lack of the requisite census, refusal to take the oath in acta 
 Gaesaris which was demanded of senators as of magistrates,^" 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 ; ^^ it might 
 even make this expulsion a punishment for calumnious accusa- 
 tion.^^ The revised list of the Senate (album senatorivm) was 
 
 * Dio Cass. liv. 17, 30 ; Tac. Ann. i. 75, ii. 37. 
 
 ^ He declared "non lecturum se senatorem nisi civis Eomani abnepotem'' 
 (Suet. acmd. 24). 
 
 ° Vita Commodi 6 "ad cnjus (Cleandri) nutum etiam Ubertini in senatum 
 atque in patrioios leoti sunt " ; Vita Elagabali 11 " Fecit litertos praesides, legates, 
 consules, duces." 
 
 * Tac. Ann. iii. 4 "simul novi homines e municipiis et coloniis atque etiam 
 provinciis in senatum crebro adsumpti " ; Suet. Vesp. 9 " Amplissimos ordines 
 . . . puTgavit supplevitque, recenso senatu et equite , . . honestissimo quoque 
 Italicorum ao provincialium adlecto." 
 
 ^ Tac. Ann. xi. 25 ; Prof. Pelham in Classical Reiyiew ix. p. 441. 
 
 8 Plin. Ep. vi. 19. ' Vila Marci 11. 
 
 * For the infliction of such a nota by Domitian see Suet. Dom. 8, " quaestorium 
 virum, quod gesticulandi saltandique studio teneretur, movit senatu." 
 
 » p. 347. 
 
 " Tac. Ann. iv. 42 (Tiberius) "Apidium . . . Merulam, quod in acta divi 
 Augusti non juraverat, albo senatorio erasit." 
 " ib. iii. 17 ; vi. 48. 
 '!* ib. iv. 31 ; xii. 59. 
 
X THE SENATE OF THE PRINOIPATE 375 
 
 posted up publicly every year,^ and the Emperor appeared at 
 the head of this list as princeps senatus.^ The number of the 
 Senate was fixed by Augustus at 600,^ 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.* Even to these meetings, however, there was 
 a summons through an edict.^ Extraordinary sittings {senatus 
 indicii) could also be held whenever the magistrate deemed 
 them necessary.' The presidency and summons belonged chiefly 
 to the consuls, but, as in the Eepublie, were possessed also by 
 the praetors and tribunes.^ When the Senate had been sum- 
 moned, 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.® 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.® We 
 have already noticed the singular privileges which he possessed 
 in the matter of bringing business before the house. ■'^'' 
 
 ^ Dio Cass. Iv. 3 ; Tao. Ami. iv. 42. 
 
 2 Dio Cass, liil 1 (Augustus in 28 B.O. during the oensorsMp of himself 
 and Agrippa) ii> aiiraU {rais iiroypa^ats) vpdKpiTos t9js yepovcrlas iireKMiBri : 
 cf. Ixxiii. 5, where Pertinax irpdKpiTOS . . . rijs yepovffias /card rb AfrxO'tov 
 iirusvoiiAaBri : an expression which seems to show that it was not a constant 
 designation of the Princeps at this period. 
 
 s ib. Hv. 13, 14. 
 
 * ib. Iv. 3 ; Suet. Aiig. 35 ; Merkel ad Ovid. Fast. p. vi. 
 
 " Lex de imp. Vesp. 1. 9 "ac si e lege senatus ediotus esset hahereturque." 
 
 ' Vita Qordiammvm, 11 ; Vita Hadriani, 7 ; Dio Cass. liv. 3. 
 
 ' For the summons by a praetor see Tao. Sist. iv. 39 ; by tribunes, Dio Cass. 
 Ivi. 47, Ix. 16, IxxviiL 37 ; by tribunes and praetors, ib. lix. 24. 
 
 ^ 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 (Ivii. 7) ical yhp ainbs ^rj^iov iroWdKis iSlSov. 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 senteniiae (Tac. Anm. iii. 17). The question is not of much 
 importance for the Principate as a whole, as in its later period the Emperol 
 usually consulted the Senate by letter. See p. 369. 
 
 ^ See Tac. Ann. i. 74, quoted in the last note. " p. 348. 
 
376 ROMAN PUBLIC LIFE chap. 
 
 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 ; ^ 
 but its nominal exercise was an expression of the view that the 
 sovereignty of the Eoman 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,* or in administrative 
 matters such as the right of forming associations.* The elective 
 power which the Senate enjoyed from the beginning of the 
 reign of Tiberius * 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,* 
 it has lost all independent rights of war, peace, and alliance. 
 But it receives envoys from the provinces which are under its 
 control,* and from the towns of Italy/ 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 ; ^ Vespasian waived 
 an embarrassing ofier of help from the Parthian s by urging them' 
 to send an embassy to the Senate ; and Decebalus, after his con- 
 quest by Trajan, obtained his final terms of peace by the same 
 means.® 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 
 
 ' p. 359. 2 p. 350. 
 
 ' The formula for the formation of a collegium legUimum runs 'qnibtis 
 senatus c(oire) o(onTooari) o(ogi) permisit e lege Julia ex auctoritate Augusti" 
 (O.I.L. TL n. 4416). 
 
 " p. 372. 
 
 ^ Dlo Cass. Ixviii. 29. 
 
 ' Tac. Arm. iii. 60 ; xii. 62. 7 h,. xiii. 48. 
 
 8 "de legendoTel exauotorando milite, aclegionum et auxUiorum desoriptione " 
 (Suet. Tib. 30). 
 
 • Tao. Hist. iv. 51 ; Dio Cass. Ixviii. 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). 
 
X LEGISLATION IN THE PEINCIPATE 377 
 
 reserve for the next section, in which we shall attempt to 
 illustrate the theory of a dual control which pervades the con- 
 stitution of the Principate. 
 
 § 5. The Chief Depwrtments of the Slate; 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.^ 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.^ 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.^ 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 Eepublican Senate 
 had often tendered to the magistrate, and in the interpretation of 
 
378 ROMAN PUBLIC LIFE chap. 
 
 customary law or of enactments wMch often accompanied this 
 advice.^ It has, indeed, been noted ■ that the senatus consulta of 
 ,the Principate, which prescribe general commands such as in the 
 Eepublic would have been the subject of kges, are often expressed 
 in this advisory form ; 2 decrees of the Senate never attained the 
 formal structure of a law ; ^ they also lack its imperative mode of 
 utterance, and for these two reasons they were never described 
 as kges. The highest degree of validity which the jurist could 
 give them was "the binding force of laws" j* but this force was 
 sufficient to make them sources of the jus civile,^ and down to the 
 third century such general commands as tended to alter the 
 fundamental legal relations of Eoman 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 irwperium of every Eoman 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 imperivm by explicitly declaring that 
 whatever ordinances the Princeps might lay down should (with 
 certain limitations fixed by precedents) be considered valid.^ 
 Whether the edict of one Princeps bound Ms successor must have 
 depended to some extent on the degree of formality in the 
 utterance. Tiberius professes respect even for the obiter dicta of 
 
 1 p. 275. 
 
 " Thus the S. 0. VeUdanunu, which limited the ohligations which women might 
 incur, begins, "Quod Marcus Silanus et Velleus Tutor consules yerba fecerunt 
 . . . quid de ea re fieri oportet, de ea re ita censuere " (Dig. 16, 1, 2, 1) ; cf. Dig. 
 36, 1, 1, 2 (S. G. Frebellianwm), 14, 6, 1 (<S. O. Macedonianum), and see 
 Kipp QueUenhunde des rBm. Rechts p. 27. 
 
 ' The jurists refer to them by the names of their proposers ; hence such 
 designations as Vdldanum, Trebdlianum (see last note), But such designations 
 are not official. The IS. 0. Macedonianum is called after the offender who had 
 been the occasion of the decree. 
 
 * Gaius i. i " Senatus consultum est, quod senatus jubet atque oonstituit : idque 
 legis vicem obtinet, quamvis fuerit quaesitum." 
 
 6 Dig. 1, 1, 7 ; 1, 3, 9. 
 
 ' Lex de imp. Vesp. 1. 17 " utique quaeounque ex usu rei publicae majestateque 
 divinarum humanarum publioarum privatarumque rerum esse censebit, ei agere 
 facere jus potestasque sit, ita uti divo Augusto . . . fuit." 
 
X LEGISLATION IN THE PEINCIPATE 379 
 
 Augustus ; 1 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 ; ^ 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.^ 
 
 The decretmm was, in its strict sense, the sentence of the 
 Princeps when sitting as a high court of justice ; * 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.^ 
 
 The third mode of utterance is by means of the letter (epistdla) 
 or rescript (resoripimn).^ 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,^ 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, 
 
 ' Tao. Ann. i. 77 "divus Augustus immunes verberum histriones quondam 
 respouderat, neque fas Tiberio infringere dicta ejus. " 
 
 2 p. 363. 
 
 ' Paulus in Dig. 28, 2, 26 " Filius familias, si militet . . . aut teres scribi aut 
 exheredari debet, jam sublato edicto divi Augusti, quo cautum fuerat ne pater 
 filium militem exheredet." 
 
 * It was sometimes used in a more general sense for constitviio prmcipis, as 
 wlien Papinian says "Jus . . . civile est quod ex legibus, plebis scitis, senatus 
 consultis, decretis principum, auctoritate prudentium venit " [Dig. 1, 1, 7). 
 
 " Dig. i, 2, 13 " Exstat enim deoretum divi Marci in haec verba, etc. . . ■ 
 Caesar dixit, etc. " 
 
 ' " Eesoript " is properly an answer to a letter, but it soon came to be used as 
 ezquivalent to epistola. See Kipp op. cit. p. 37. 
 
 ' Cf. Dig. 1, 16, 4, 5 "imperator noster Antoninus Augustus ad desideria 
 A^ianorum rescripsit " (on tbe mode in which the proconsul should arrive at the 
 province of Asia). 
 
380 EOMAN PUBLIC LIFE chap. 
 
 and was the chief mode in which the uniformity of its adminis- 
 tration 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 {libellits, swpplicatio) of one of 
 the parties to a suit. In the latter case they were often a con- 
 venient 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 " (^wnstitutiones priricipwm), 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.'- 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 jm civile and was repeated by 
 successive emperors, it doubtless came to have the force of a 
 rescript;^ 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 man- 
 
 ' Gaius i. 5 " Constitutio prinoipis est, quod iraperator deoreto vel edioto vel 
 epistola constituit ; neo unquam dubitatum est quin id legis vioem obtineat." 
 Cf. Ulplan in Dig. 1, 4, 1, 1 "Quodoumque . . . imperator per epistulam et 
 subsoriptionem statuit vel cognoscens decrevit . . . Tel edicto piaecepit, legem 
 esse constat. Haec sunt quas vulgo constitutiones appellamus." 
 
 ^ 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 coutulit : eamque et Trajanus 
 secutus est et exinde mandatis inseri coepit caput tale. Caput ex mandatis, etc." 
 (Ulpian in Dig. 29, 1, 1) . 
 
K JURISDICTION IN THE PRINCIPATE 381 
 
 date stands higher than the rescript, for it is as a rule more 
 general in form, and a rrumdatwn 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 treat- 
 ment 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 th« 
 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.) Jwisdiction. — 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 exercis- 
 ing 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. 
 
382 ROMAN PUBLIC LIFE chap. 
 
 The civil jurisdiction of the Eepublic, with its division into 
 jus and judicmm, 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 ardinaria 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 begin- 
 ning of the Principate, and was soon extended to provincial 
 governors and to his great delegates, the praefects. This juris- 
 diction 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^ is wholly dififerent in character 
 from the judex ordinaiius of the older form of process. The new 
 procedure does not admit the distinction between jus and judi- 
 dvm ; the judex is a true delegate, is appointed without a /ormMte, 
 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.^ 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 (fdei commissvm) 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.* 
 
 The civil courtsof appeal existingunderthe 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 com- 
 
 ' Gell. xii. 13, 1 "Cum Romae a, consulibus judex extra ordinem datus 
 pronuntiare . . . jussus essem." 
 
 " Dio Cass. li. 19 (in 30 B.C. it was decreed) rip Kairapa 7t}i/ re l^ovalav ttiv 
 tCiv Sriii.6.pxiav Sii, |8(ou ^xeiK . . . iKKKTfrbv re StKd^eLV. It is probable that the 
 last words only describe the establishment of the Princeps as a high court 
 of voluntary jurisdiction. See Greenidge in OlassiccU Review viii. p. 144. 
 
X JURISDICTION IN THE PRINCIPATE 883 
 
 pletely reverse the decisions of a lower court, which has its origin 
 mainly in an attempt at centralising the higher provincial 
 jurisdiction in Eome. From the decision of & judex in the jvdicia 
 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 
 jv/re an appeal lies as before to an equal or higher authority,^ and 
 the veto in virtue of the major potestas or majm 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.^ His presence seems to 
 show that the limitations of the old mmliwrn — which must be 
 offered in person^ — 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 Eepublican inter- 
 cession 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.* He can, therefore, supplement his negative 
 by a positive judgment, and this unique combination of the power 
 
 ' Paulus in Dig. 5, 1, 58 " Judioium solvitur vetante eo qui judicare jusserat 
 vel etiam eo qui majus imperium in eadem jurisdiotione habet." The veto in 
 virtue of par potestas is here omitted on account of its disappearance in the time 
 of Paulus (ekca, 200 A.D.). See Merkel Gesch. der Uassichen Appellation 
 ii. p. 19. 
 
 ^ Tao. Ann. i. 75 "judiciis adsidebat in comu tribunalis, ne praetorem curuli 
 depelleret j multaque eo coram adversus ambitum et ^otentium preces constituta " ; 
 Dio Cass. Ivii. 7 ^irc^oira Sk koI iirl ri, twv ipxivriiiv SiKaa-Hipia, Kal irapa- 
 KoXoi/nevos iir' airdv Kal d.Trapi.KKiyroi, Kal . . . (\eysv Stra iSdKei airifi, c!)s irdpeSpos. 
 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 oonsiliarium ; adsidebatque juxtim vel 
 exadversum in parte primori." According to Suetonius (1.0.) he exercised a similar 
 influence over the jurisdiction of the gwaestiones. 
 
 8 p. 178. * p. 382. 
 
384 ROMAN PUBLIC LIFE chap. 
 
 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 Eepublic could put pressure on a praetor to 
 induce him to alter his formula,^ and we can hardly imagine the 
 praetor withstanding the suggestion accompanying a veto pro- 
 nounced by the holder of the tribv/nicia 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.^ These municipal 
 courts were technically those of the praetor wrbanus, and the 
 Princeps probably interfered (if at all) with their jurisdiction only 
 through his control of the rulings of the praetor in Eome. We 
 shall trace elsewhere the mode in which the extraordinary juris- 
 diction 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 mandat- 
 aries, and there is necessarily an appeal from the mandatary to 
 the higher authority, unless this authority distinctly asserts that 
 no appeal wiU lie.* 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 wrbanus and consulares 
 for home and foreign appellationes,* a word which in this context 
 
 ^ Clo. pro TuUio 16, 38 "quid attinuit te tam multis verbis a praetore 
 postulare ut adderet in judicium 'injueia,' et, quia non impetrasses, tribunes plebis 
 appellare et hio in judicio queri praetoris iniquitatem quod de iiyuria non 
 addiderit ? " So the tribunioian veto might be employed to elicit an exception. 
 Cic. Acad. Prior, ii. 30, 97 "Tribunum aliquem censeo adeant \(d. videant]: a 
 me istam exceptionem nunquam impetrabunt." 
 
 ^ Tao. Ann. xiii. 28 (a.d. 56). See Appendix. 
 
 ^ Dio Cass. lix. 8 6 fikv ykp Ti^^ptos oUtojs auriv (Silanus) ^rtfiTiffev, &(m 
 li-qr ^KKkTyrbv TT&re d7r' airrov 8iKd(rat i&eXijffaif AXV ^Kcivi^ irdvra aSdts T& 
 Toiaura 4yxei-pl<rai. "We do not know what position Silanus held. If, as is 
 generally supposed, he was consul, the reference may be to appeeils from juris- 
 diction iu Jidei commism delegated by the Princeps to the consul. 
 
 * Suet. Aug. 33 " Appollatioues quotannis urbanorum quidem litigatorum 
 praetori delegabat urbano : at provinoialium consularibus viris, quos singuloa 
 cujusque provinciae negotiis praeposuisset." That the conjecture pratefedo 
 
X JUKISDICTION m THE PEINOIPATB 385 
 
 probably means simply " requests for cognisance " made to the 
 Princeps. The imperial jurisdiction in matters of trust {fdei 
 commissa) was delegated to consuls or to praetors.^ But, apart 
 from this regular delegation, the Emperor might instruct any one 
 to be his jvdex extra ordinem, when he did not care to take the 
 case himself. 
 
 The appeal from provincia;l 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 Eepublican 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.^ 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 (Eomam revocatio) ; ^ 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 
 
 ddegdbat la-bis is untenable has been pointed out by Mommsen (Staatsr. ii. p. 985 
 note 1). 
 
 ^ 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." 
 
 ^ Tac. Ann. xiii. i "teneret antiqua munia senatus, consulum tribunalibus 
 Italia et publioae provinciae adsisterent. " 
 
 ' Cio. in Verr. iii. 60, 138 ; ad Fam. xiii. 26, 3 ; Fragmentum Aiestm-um 
 (Bruns Fontes) 1. 10. 
 
 2 
 
386 ROMAN PUBLIC LIFE chap. 
 
 over the proconsuls of the public provinces ; for the statement 
 that he possessed majibs imperium over such governors ^ 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 guaestiones, so long as it continued,^ 
 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.^ 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 oflFence. The 
 Senate tried ordinary crimes, such as murder, adultery, incest, 
 when they were committed by the members of the upper classes 
 in society,* and there was a growing feeling, which subsequently 
 
 ^ When the Senate granted the proamsulare imperium to Augustus in 23 B.o. 
 iv tQ {iTTiKdifi rb w'Keioy rue iKaaraxbOL AfixSyTUv l(7x<iei.v iirerpe^ev (Dio Cass. 
 liii. 32). .Of. Ulpian in Dig. 1, 16, 8 [" (proconsul) majus Imperium in ea pi-ovinoia 
 habet omnihus post principem "] and in 1, 18, 4. It is a passive rather than 
 an active Tnajus 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. 2 p_ 3gg_ 
 
 * Ulpian in Dig. 49, 2, 1, 2 "sciendum est appellari a seiiatu non posse 
 principem, idque oratione divi Hadriani effeotum." It was doubtless the original 
 principle, oonflrnied and not created by Hadrian, 
 
 * Tao. Ann. iii. 14, xvi. 8 ; Suet. Axig. 5. 
 
X JURISDICTION IN THE PRINCIPATE 387 
 
 obtained something like legal recognition, that a senator should 
 be tried by his peers. ^ 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,^ tended to come before 
 it. It was the usual court for extortion or other misuse of 
 powers by provincial governors ; ^ it judged offences against the 
 majesty of the state ; * 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.^ Its utility was 
 assisted by the unlimited and arbitrary character of its juris- 
 diction. 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 ; * and the principle, 
 forbidden in the quaestiones, of uniting several crimes in the same 
 charge, was here admitted.^ This jurisdiction was technically, 
 
 ' There was no legal principle of the kind. According to Dio Cassius (liii. 
 17) the monarchical power extended so far flcrre Kal ivrii tov Troifuripiov xal rois 
 iTircas Kal toi)s ^ovXevri,! BavaTovti SivaaBai, 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 conaultum to be passed that the Emperor 
 should not be allowed to put a senator to death without the will of the Senate 
 (Dio Cass. Ixxiv. 2 ; Vita Severi 7). The principle had been stated earlier by 
 Hadrian {Vita Hadriani 7 "juravit se nunquam- senatorem nisi ex senatiis 
 sententia puniturum "). 
 
 ^ Augustus in 29 B.C. brought Antiochus of Commagene, Tiberius in a.d. 17 
 Archelaus of Cappadocia before the Senate (Dio Cass. Iii. 43, Ivii. 17 ; Tac. Ann. 
 ii. 42). In a.d. 19 Ehesouporis of Thrace was accused there (Tac. Ann. ii. 67). 
 
 ' Cases of extortion are to be found in Tac. Ann. iii. 66, xii. 69 ; Hist. iv. 
 45. In A.D. 23 we find the imperial procurator [patrimonii) of Asia brought 
 before the Senate for exceeding his powers (Tac. Arm. iv. 15). 
 
 * Tac. Ann. iv. 13 (a.d. 23) "Carsidius Saoerdos, reus tamquam frumento 
 hostem Tacfarinatem juvisset, absolvitur, ejusdemque oriminis C. Gracchus. " 
 
 5 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. 
 Iviii. 9, 10). 
 
 * In A.D. 37 we find that a mother, who had caused her son to commit suicide, 
 " aocusata 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 pramomcatio, "quod reos, ne apud praefectum urbis arguerentur, ad 
 praetorem detulisset" (ib. xiv. 41). 
 
 ' 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 ("Bespondit Pronto Catius deprecatnsque est ne 
 quid ultra repetundamm legem quaereretur . . . Magna contentio, magni utrimque 
 clamores, aliis cognitionem senatus lege conclusam, aliis liberam solutamque 
 dioentibus "). 
 
388 KOMAN PUBLIC LIFE chap. 
 
 perhaps, a cognitio of the consuls.^ But the Senate was their 
 constant advising body, and the sentence took the form of a 
 senatus consultvm. 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 under- 
 take the cognisance (cognitionem suscijaere) at the request of one 
 of the parties,^ or refer the case to the ordinary court, 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 pro- 
 cedure 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 fi-om the Princeps, it was practically, although 
 not legally, impossible for the Senate to decline.^ 
 
 But, although any request for cognisance might be listened 
 
 1 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 (Arm. ii. 28 "Statim corripit reum, adit consules, 
 cognitionem senatus poscit"). 
 
 2 Plin. Ep. vi. 31, 8 (in a case of a forgery of a will) " Heredes, cum Caesar 
 (Trajanus) esset in Dacia, communiter epistula scripts, petierant ut snsciperet 
 cognitionem." 
 
 * Tac. Ann. ii. 79 " Marsus . . . Vibius nuntiavit Pisoni Romam ad dicendam 
 causam veniret. Ille elndens respondit adfutumm, ubi praetor, qui de veneficiis 
 quaereret, reo atque accusatoribus diem prodisisset " ; ib. iii. 10 " petitum . . . 
 est ft prinoipe cognitionem exciperet ; quod ne reus quidem abnuebat, stodia 
 populi et patrum metuens . . . baud fallebat Tiberium moles cognitionis quaque 
 ipse fama distraheretur. Igitui paucis familiarium adhibitis minas accusantium 
 et hinc preces audit integramque causam ad senatum remittit." " Eemittit " does 
 not imply that the Senate was bound to take the case. For the technically 
 volunbiry nature of its jurisdiction cf. ib. iv. 21, xiii. 10, where we find the 
 expressions " receptus est reus," " recepti sunt inter reos." 
 
X JURISDICTION IN THE PEINCIPATE 389 
 
 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.^ 
 The Emperor might, of course, delegate this jurisdiction, 
 although the delegation of special cases seems to have been 
 unusual.^ 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.^ 
 
 A peculiar right of the Princepn to try cases from the pro- 
 vinces in which the lives of Eoman 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 Eoman citizens should be sent to Rome, are 
 indeed furnished by such cases as those of the Bithynian 
 Christians in the reign of Trajan,* and perhaps of St. Paul's 
 appeal in the reign of Nero ;^ and perhaps such a demand for a trial 
 at Eome 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 Eoman knight in the province of Africa, 
 and Galba, when governor of Tarraconensis, crucified a guardian, 
 who was a Eoman citizen, for poisoning his ward.® There are, 
 however, signs that the right to kill (jus gladii), if this expression 
 refers tootdinary as well as to military jiurisdiction, was specially 
 
 * Dio Casa. 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. 3p. vi. 31, 6 " Caesar et nomen centurionis et oommemorationem 
 discipliuae militaris sententiae adjecit, ne omnes ejusmodi causas revocare ad se 
 videretui "). 
 
 ' An instance is mentioned by Pliny (^. vii. 6, 8 " mater, amisso filio . . . 
 libertos ejus eosdemque coheredes sues falsi et veneflcii reos detulerat ad prin- 
 cipem judicemque impetraverat Julium Servianum "). 
 
 ' See the section on the functionaries of the Princeps (p. 406 sq. ). 
 
 * Plin. ad Traj. 96, 4 " quia cives Bomani erant, adnotavi in urbem remittendos." 
 ■^ It is not properly an appeal but a denial of jurisdiction. But on what 
 
 ground the jurL<!diction of the procurator was denied is not clear. The Eoman 
 citizenship, in virtue of which St. Paul claimed exemption from scourging at 
 Philippi and Jerusalem, is not mentioned here. See Qlass. Sev. x. p. 231. 
 ' Plin. Ep. ii. 11 ; Suet. Galba 9. 
 
390 ROMAN PUBLIC LIFE chap. 
 
 given by the Emperor at least to the administrators of his own 
 provinces,^ 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,^ and this 
 jurisdiction, reserved for the Princeps, was exercised by the 
 praefedus praetorio without appeal. 
 
 The Princeps was (especially in the early Principate) by no 
 means a universal court of criminal appeal for the whole Eoman 
 world. There was no appeal to him from the quaestiones perpetuae, 
 although he may have had some right of rescinding the inequit- 
 able judgments of such courts (m integrum restiiutio) ; 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.* In the matter of juris- 
 diction delegated to his praefects, the appeal lies unless he wills 
 it away, as he does in favour of the jpraefedus praetotio. With 
 respect to the provinces, the principle of the dual control, which 
 we have illustrated with reference to civil jurisdiction,* must 
 have originally been supposed to hold good with reference to 
 criminal jurisdiction as well ; but the dyarchy was, in this par- 
 ticular, 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 
 Eoman world. 
 
 Besides the right of appeal, there is in most political societies 
 a power residing somewhere which is, or approximates to be, a 
 
 ^ For its attacliment to procurators and to persons with extraordinary com- 
 mands see the instances given by Mommsen (Staatsr. ii. p. 270). So the praefec- 
 tures of the guard, the vigiles andthe 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 nniversas provin- 
 cias regunt, jus gladii habent et in metallum dandi potestas iis permissa est ") 
 
 2 Dio Cass. lii. 22, 33 ; Dig. 48, 19, 27, 1 and 2. 
 
 ' 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 oonsultum, ne decreta patrum ante diem decimum ad 
 aerarium deferrentur idque vitae spatium damnatis prorogaretur " • cf Dio Cass 
 Ivii. 20 ; Suet. Tib. 75). 
 
 * p. 385. 
 
X THE POWER OF PARDON 391 
 
 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 Eepublic and the 
 Princeps. 
 
 The Senate possessed no general power of pardon beyond the 
 right, inherited from the Eepublic, of annulling charges and 
 thus releasing people, who are on their trial, on certain public 
 and festal occasions.^ This right of declaring abolitiones publicae 
 was one expression of its right of amnesty.^ But the Senate had 
 besides, as a high court, the right of rescinding its own former 
 sentences {in integrum restitutio).^ 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.* 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 Eome, possessed 
 the fuU power of restitutio only over his own sentences and those 
 of his predecessors in office.^ 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 * or the execution of the judgment, was merely a 
 
 * "Ob laetitiam aliqiiam vel honorem domus divmae vel ex aliqiia causa, ex 
 qua sonatas oensuit abolitionem reorum fieri " (Ulp. in Dig. 48, 16, 12 ; of. 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). 
 
 2 p. 249. 
 
 ' Ulp. in Dig. 3, 1, 1, 10 "De qua autem restitutione praetor loquitur? 
 Utrum de ea quae a prinoipe vol a senatu ? Pomponius quaerit : et putat de ea 
 restitutione sensum, quam princeps vel senatns indulsit." 
 
 * It is said of Claudius (Suet. Olaud. 12) "neminem exulum nisi ex senatns 
 auctoritate restituit"; and of Antoninus Pius (Vita 6) "His quo.s Hadrianus 
 damnaverat in senatu indulgentias petit, dicens etiam ipsum Eadrianum hoc 
 fuisse facturum." 
 
 ^ Such acts are mentioned under Claudius (Dio Cass. Ix. 4), Otho (Tao. Hist. 
 i. 90 ; Plut. Othx) 1), Vitellius (Tac. Hist. ii. 92), Vespasian (Dio Cass. Ixvi. 9), 
 Nerva (Plin. Ep. iv. 9, 2), Antoninus Caracalla (Vita 3), and Gordian (Herodian 
 vii. 6, 4). 
 
 ' Tac. Awn. ii. 50 " (Tiberius) liberavit . . . Appuleiam lege majestatis, adulterii 
 graviorem poenam deprecatus." 
 
392 ROMAN PUBLIC LIFE chap. 
 
 practical and accidental consequence of the application of the 
 tribunician power to a decree of the Senate.^ Nor is there any 
 distinct evidence of his possessing the power of rescinding the 
 sentences of the quaestiones perpefuae, 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)? "With respect to the ordinary civil courts, the 
 praetor possessed the power of equitable restitution,^ but there is 
 evidence that the Princeps, also as a court of equity, might 
 rescind inequitable sentences both of ordinary judices and of 
 centwrnviri.*' 
 
 The Princeps also possessed a power of quashing indictments 
 (abolUio), which does not seem to have been confined to 
 his own jurisdiction, but to have been extended to other 
 criminal courts as well.^ 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,* and it is very improb- 
 able 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,' 
 and it is obvious that the triburdcia 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,^ so the revision of the sentences of 
 
 1 p. 390. 
 
 ^ Gordiau is spoken of as iraKi.i'di.Klav diSois rois dS/zcws KaraKpiBetn (Herodian 
 vii. 6, 4). 
 
 3 Ulp. in Dig. 3, 1, 1, 10. 
 
 ^ Suet. Glaud. 14 " (Claudius) iis, qui apud privates judioes pius petendo 
 formula exoidissent, restitult actiones " ; Bom. 8 " (Domitianus) ambitiosas oen- 
 tumTiroruin sententias rescidit." 
 
 ' This power was employed by Augustus (Suet. Aug. 32 "Diuturnorum 
 reorum . . . nomina abolevit "), Gaius (Suet. Oalig. 15 " oriminum ... si quae 
 residua ex priore tempore manebant, omnium gratiam fecit " ; of. Dio Cass. lix. 
 6), Vespasian (Dio Cass. Ixvi. 9), and Domitian (Suet. Dom. 9). 
 
 ' p. 388. ' Cio. in Vat. 14, 33. s p. 390. 
 
X THE DYARCHY IN ADMINISTRATION 393 
 
 the local courts, where revision is suggested by the judge/ as 
 well as the infliction of punishments denied to the judge — such 
 as the capital penalty on decurions or deportation on any one ^ 
 — centre finally in the hands of the Princeps. All right of 
 revision and restitution is not, indeed, denied to the provincial 
 governor,* but while this was finally restricted by certain well- 
 defined rules, the Emperor's power of restitution appears ulti- 
 mately to have been unlimited. " This power might be so 
 employed by the Emperor as to take the form of a free pardon,* 
 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 con- 
 stitutional right of a sovereign." ^ 
 
 (iii.) Administration. — The principle of a dual control is as 
 manifest in administrative matters as in any other. The spheres 
 of administration are Eome, 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 
 
 ' Dig. 48, 19, 9, 11 "referre ad prinoipem detet, ut ex auctoritate ejus poena 
 aut permutetur aut liberaretur. " 
 
 ^ The capital punishment of decurions was prohibited by Hadrian {Dig. 48, 
 19, 15), and the earliest mandata, directing the procedure of governors in such 
 oases, proceed from the dim fratres (ib. 48, 19, 27, 1 and 2). The punishment 
 of deportation had been confined to the Princeps and the praefects of the prae- 
 torian guard and the city by the time of Septimius Severus (ib. 48, 19, 2, 1 and 
 48, 22, 6, 1 ; cf.'§ 7). 
 
 * 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. 
 
 * A passage in Justinian's Code (9, 51, 1) shows us Antoninus (Caracalla) 
 sajring to a man, who had been deported to an island, " Eestituo te in integrum 
 provinciae tuae." 
 
 ^ Greenidge in Classical Review viii. p. 437. 
 
394 ROMAN PUBLIC LIFE chap. 
 
 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.'^ 
 There is no particular ground for believing that the Princeps 
 managed departments such as Eome 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 pro- 
 vinces into public and imperial implied of itself the existence of 
 two separate financial departments. The Senate still asserts 
 control over the aerariwm, 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 ^ until Augustus in 28 B.C. in- 
 stituted two praefecti aerarii Satwrni, chosen yearly from the ex- 
 praetors by the Senate.^ 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.* 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.^ Finally under Nero (56 a.d.) th« elements of 
 
 ' Cf. Tao. Ann. iii. 53 (quoted p. 352). 
 
 ^ Dio Cass, xliii. 48 ; Momms. Staatsr. li. p. 557. 
 
 * Tao. Ann. xiii. 29 ; Dio Cass. liii. 2 ; Suet. Aug. 36. 
 
 * Tao. 1.0. ; Dio Cass. liii. 32. 
 
 * Tao. 1.0. ; Dio Cass. Ix. 24 ; Suet. Claud. 24. For the election by the 
 Prinoeps see the inscription to Ti. Domitius Decidius " electo (Mommsen, " adlecto " 
 Wilmanns) a, T. Claudio Caesare . . . qui primus quaestor per trieunium citra 
 ordinem praeesset aerario Satumi" (Wilmanns n. 1135). 
 
x. FINANCE IN THE PRINCIPATE 395 
 
 the Augustan and the Claudian arrangements were combined ■■ 
 in the provision that two ex-praetors should be appointed as 
 praefects of the treasury, but that these should be named, gener- 
 ally for three years, by the Princeps.^ 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.^ 
 
 The Princeps was rendered financially independent of the 
 Senate through the possession of his own treasury {fiscus or 
 fiscus Caesaris)* 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 {bma damnatorwm, 
 bona vacantia), in the claim to which the Jiscm finally replaced 
 the aerarium. The Princeps was the owner of the Jisciis, but 
 was regarded as a trustee of the wealth which it contained. To 
 sue the Jisms 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 (paMmonium or patrimoniwn 
 privatum), the use of which for private purposes was vested in 
 the Princeps.^ The patrimoniwn doubtless commenced by being 
 the strictly personal property of the first family of Caesars, and 
 much of it was acquired by bequest ; ^ but, when the Principate 
 had ceased to be hereditary in the Julian line, it seems to have 
 
 * Momms. Staatsr. ii. p. 559. 
 ' Tac. I.e. ; Mommseu I.e. 
 
 ' Dio Cass. Ixxi. 33 koI xp^/tara iK tov Stifwfflov 'QTijae ttjv PovMpi. 
 
 * For the meaning of the word — the great basket in which money was kept 
 in the state treasuries — see Mommsen Stofdsr. ii. p. 998 n. 1. At the be- 
 ginning of the Principate there were, perhaps, fisci rather than a fiseus (of. Suet. 
 Aug. 101), although there must always have been a central controlling depart- 
 ment. 
 
 * Tiberius in 23 B.o. says of Luoilius Capito, procurator of Asia, "non se jus 
 nisi in servitia et pecunias familiares dedisse" (Tac. Ann. iv. 16). He was 
 doubtless a "procurator patrimonii." Cf. Tac. Ann. xii. 60 ("cum Claudius 
 libertos, quos rei famUiari praefecerat, sibique et legibus adaequaverit ") ; xiii. 1 
 "P. Celer eques Eomanus et Helius libertus, rei familiar! principis in Asia 
 inpositi." 
 
 8 Marquardt Staatsverwaltung ii. p. 256. 
 
396 ROMAN PUBLIC LIFE chap. 
 
 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 patrimonivm 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,^ the administration of which was kept quite distinct 
 from that of the patrimonium. AU 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,^ and to which, as fixed sources of revenue, the two 
 taxes of the vicesima hereditatum and the centesima rerum venalium 
 were assigned.^ The administration of this chest was given to 
 three praefects (praefecti aerani militaris), who remained three 
 years in ofiice, and were chosen from ex-praetors, originally by 
 lot but later by the Princeps.* 
 
 ' Vita Severi 12 " interfeotis innumeTis Abani partium viris . . . omnium 
 bona pnblioata sunt . . . Tunoque primum privatarmn rerum proouratio con- 
 stituta est." The ordinarily accepted view of the relations of these two depart- 
 ments to one another Is that of Hirsohfeld and Marquardt, viz. that the patri- 
 monium was the inalienable crown property, the res privata the strictly personal 
 property of the Princeps. Karlowa {Mechtscgeshichte i. p. 605) takes an exactly 
 opposilive 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 prro- 
 cwator patrimonii. 
 
 ^ Mon. Anc. iii. 39 "HS milliens et septingeutiens (170 million sesterces) 
 ex patrimonio meo detuli." 
 
 * Dio Cass. Iv. 25 ; Tac. Ann. i. 78. 
 
 • Dio Cass. 1.0. ; of. Tac. Ann. v. 8 (vi. 3). 
 
X CULTUS AND COINAGE 397 
 
 (v.) Culhis. — 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.' 
 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,^ and on the right of asylum 
 in the provinces.* Claudius questions it on the subject of the 
 restoration of the college of hwruspices,^ and Aurelian asks it 
 for a pontifex to dedicate the great temple of the sun-god at 
 Palmyra.^ 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 posses- 
 sion 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.^ 
 
 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 ; '' the independence of senatorial juris- 
 diction is often infringed by the tribunician power of the 
 
 1 p. 351. ^ Tao. Ann. ii. 85. » ib. iii. 61. 
 
 * ib. xi. 15. " Vita Awrel. 31. 
 
 ' Mommsen RSmiscIies Miinzwesen pp. 742 if. 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. 
 
 ' Diff. 2, 15, 8 "divus Marcus oratione in senatu reoitata effecit ne, etc." Cf. 
 24, 1, 23 ; 27, 9, 1. 
 
398 ROMAN PUBLIC LIFE chap. 
 
 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 Eome and Italy, while his pro- 
 curators are a check on the activity of the proconsuls of the 
 public provinces ; his influence over the aerarmm 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. •'^ 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 aU 
 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 <md 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 Eepublican 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 wiU. We 
 
 ' Tacitus {Ann. vi. 2 [8]) remarks, with reference to proposals carried in the 
 Senate in 32 A.D., " et bona Sqani ablata aerario ut in fiscnm cogerentur, tanqnam 
 referret." 
 
X THE SENATORIAL AND THE EQUESTRIAN NOBILITY 399 
 
 have already considered his control of oflB.ce, 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 magis- 
 trates 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 Eepublic society had already 
 recognised the right of the prospective senator to wear the broad 
 scarlet stripe (latits claims) 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 Eo- 
 publican 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 latm clavus and to 
 attend the meetings of the crm-ia, in which he will one day take 
 an active part ; ■*■ 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 difl^ered, in service and 
 in title, from his purely equestrian compeer. The tribwni laticlavii ^ 
 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.^ The possessors of the latus clavus must 
 always have been expected to pursue a senatorial career ; * by the 
 time of Claudius they might be compelled to this course, the 
 penalty of refusal being the deprivsttion of the broad stripe, but 
 sometimes of equestrian rank as well.^ 
 
 * Suet. Atig. 38 " Liberia senatorum, quo celerius rei puHioae assuescerent, 
 protinus . . . latum clavum induere et curiae interesse permisit." 
 
 " Wilmanns Index p. 602 ; of. Suet. Dom. 10. 
 
 ' Augustus had given the post of praefectus aloe as well as that of iriiunus 
 mUitum 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 vfhen they first joined the 
 standards. 
 
 ^ The poet Ovid, vfho 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). 
 
 ^ Suet. Glaud. 24 "Senatoriam dignitatem recnsantibus equestrem quoque 
 ademit." 
 
400 ROMAN PUBLIC LIFE chap. 
 
 Great care was taken to preserve the dignity and purity of 
 this senatorial order. The latus claims 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.^ The Julian marriage laws prohibited marriage with freed- 
 women or actresses, not only to senators, but to their sons, 
 grandsons, and great-grandsons.^ "The order" was reckoned 
 to include the wives of senators and all descendants in the male 
 line,^ together with adoptive children, until they were emanci- 
 pated, and even those natural children who had been emancipated.* 
 The commercial disabilities of senators were perpetuated and 
 sharpened. The Republican prohibition that they should not 
 be purchasers of public contracts ^ was renewed by an edict of 
 Hadrian.^ They were permitted to invest capital at a moderate 
 rate of interest, but at times even this was disallowed.^ 
 
 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 con- 
 sidered, and the rule was fixed that, while they were allowed to 
 retain their domicile of origin (origo), they owed no public duties 
 (rminera) to the cities of their birth.* "We have already mentioned 
 the growth of the principle which reserved criminal jurisdiction 
 on a senator to the senatorial court.* 
 
 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 
 claiissima is even given to women of senatorial rank.^* A dis- 
 tinction in office and dignity but no distinction in rank separates 
 
 ^ Suet. Claud. 24 " Latum olavum (quamvis initio afSrmasset non leotuniui se 
 senatorem nisi oivis Eomaui atnepotem) etiam libertini filio tribuit, sed snb 
 conditione si prius ab equite Bomano adoptatos esset. " Claudius tben appealed 
 to the famous precedent set by Ms ancestor Appius Caecus. 
 
 2 Dig. 23, 2, 44. » ib. 1, 9, 8 ; 50, 1, 22, 5. 
 
 * ib. 1, 9, §§ 5, 6, 7, 10. 
 
 ' Asc. in or. in Tog. Cand. p. 94. 
 
 ' Dio Cass. Ixix. 16 ivoiwOirriae Si . . . tva /ii;5e!s /SouXein-ijs /iiJT' airis fi.'^e 
 8l eripov t4\qs n fitadOrai. 
 
 '' Severus Alexander at first forbade the talung 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." 
 
 * Dig. 50, 1, 23 "municeps esse desinit senatoriam adeptus dignitatem, 
 qnantum ad munera ; quantum vero ad honorem, retinere oreditur originem " 
 Cf. ib. 1, 9, 11 ; 50, 1, 22, 5 ; God. 10, 40 [39], 8. 
 
 ' p. 387. " Friedlander Sittengesch. i. 3. 
 
X THE SENATORIAL AND THE EQUESTRIAN NOBILITY 401 
 
 the Princeps from the senators. They are his " peers " (o/ior6/ioi),i 
 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 procur- 
 ators 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 (cv/rationes) 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 
 (ewratores aguarum, viarum, opervm piblicorwm, alvei ei riparwm 
 Tiberis).^ 
 
 We have already spoken of the military training and attitude 
 of this nobility,^ and also of its gradually increasing provincial 
 character.* 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 Eome or Italy 
 until his declining years. If his early military service was real 
 and not nominal,^ 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.* The praetorship 
 and consulship qualified him for long terms of service in succes- 
 sive Caesarian provinces, and for the annual governorship of those 
 stiU under the control of the Senate.^ This identification with 
 provincial life was an identification with the Principate, for there 
 were few Eepublican associations to impress the mind when the 
 bounds of Italy had been passed. The principles of selection, 
 
 ' Dio Cass. lii. co. 7, 15, 31 ; Ixvii. 2. " See p. 413. 
 
 ' p. 364. " p. 374. 
 
 ° Suet. Glaud. 25 " stipesdiaque instituit (Claudius) et imagisariae niilitiae 
 genus, quod vooatur 'supra numerum,' quo absentes et titulo tenus fungerentur." 
 
 ' Ib a.d. 16 a proposal was made in the Senate "ut . . . legionum legati, 
 qui ante praeturam ea militia fungebantur, jam tum praetores destiuarentur " 
 (Tao. Ann. ii. 36). 
 
 ^ Galba's is a good instance of a distinguished senatorial career. He obtained 
 office amte legitmvum 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. Oalba 6, 7, 8. 
 
 2 D 
 
402 ROMAN PUBLIC LIFE chap. 
 
 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,^ 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 ^ — a gift which, as early as the time 
 of Hadrian, had come to confer free birth (ingemuMas) merely and 
 not equestrian rank,* 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.* 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 elites eguo publico, 
 
 ' Tac. Ann. iv. 6 "(the state contracts) societatibus equitum Eomanorum 
 agitabantur. " 
 
 ^ Dio Cass. liii. 30. On Antonias Musa, who had saved Augustus' life, was 
 conferred t6 x/jutroJs Sa/cruXfois (ATreXeiSepos yip Jjf) XP?""^"! : ib. xlviil. 45 
 (Augustus, on the reception of Menas the former freedman of Sez. Pompeius) 
 SaKTv\iois re xpuffots iKda-foiire Kal is rb twv iiririaii tAos iaiypa^e. These words 
 tnay mean that Menas was made an. eques eguo publico as well. 
 
 ' 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. 
 
 * 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 (Ivi. 42) 
 speaks of ot re iTrireis, o'l re ix toO t^Xous xai ol &\\oi, it is not clear who "the 
 others " are, but the passage shows that persons other than those in the corps 
 were called " equites." 
 
X THE SENATORIAL AND THE EQUESTRIAN NOBILITY 403 
 
 whicii 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,^ 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.^ Selection for the order was entirely in the hands of the 
 Princeps,^ 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,* the selection and elimination of equites may have 
 followed the rules prevailing under the Republican system of 
 revision ; ^ 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 equiiimi Romanorvm, and seems to have 
 been a branch of the general department of petitions (a libellis).^ 
 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, eiFected, now as 
 in the Eepublic, by a solemn and public act. The act, although 
 a Republican survival, was not employed with its Republican 
 meaning. The parade of the knights (transvecHo equitum) on the 
 Ides of July had, during the Eepublic, been a mere procession ; 
 it was now given the significance of the censorian review in the 
 
 ' Dionys. vi. 13. 
 
 ^ The seviri would seem to show that there were siz turmae. See Hirsohfeld 
 VerwaUv/ngsgesch. p. 243 n. 1. 
 
 ^ Hence such expressions as a divo Hadriano equo publico honoratus (Wilmanns 
 1825), equo pvilico exomatus ab Impp. Severo et Antonino Augg. (ib. 1695). 
 
 p. 347. 
 
 * 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. 
 
 * a censibus equitum Rumanorum (Wilmanns 1275), u, censiius a libellis Aug. 
 (ib. 1249 6), a libellis et censibus (ib. 1257). 
 
404 ROMAN PUBLIC LIFE chap. 
 
 Forum/ and became the means of testing the qualifications of 
 members of the order (probatio eguitmri).'^ 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 per- 
 mitted all members of the age of thirty-five, who were unwilling 
 to continue in the corps, to return their public horses ; ^ but the 
 knights were still questioned and made to give an account of their 
 conduct,* and those whose answers were unsatisfactory were 
 dismissed from the ranks.' 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.* But, although this parade is found in 
 the reigns of subsequent Emperors,^ and can be traced as late as 
 the fourth century a.d.,* the serious duty of rejection was prob- 
 ably 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 eqw pvhlico 
 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.* 
 
 1 p. 225. 
 
 " Suet. Aug. 38 "equitum turmas frequenter recognovit, post longam inter- 
 capedinem reduoto more transvectionis." 
 
 ' ib. 38 "mox reddendi equi gratiam fecit eis, qui majores aunorum quinque 
 et triginta retinere eum nollent." 
 
 * ib. 39 " XTnuin quemque equitum rationem vitae reddere coegit." 
 
 ^ Suet. Califf. 16 "palam adempto equo, quibus aut probri aliquid aut 
 ignominiae iuesset." ^ Suet. Aug. 37, 39. 
 
 ' In those of Caligula (Suet. Oalig. 16) and Nero (Dio Cass. Ixiii. 13), and 
 perhaps in those of Vitellius (Tao. JSist. ii. 62) and Severus Alexander ( Vita 15). 
 
 ^ Zosimus ii. 29. 
 
 ^ By the side of such titles as egtio publico judex selectus ex V decuriis 
 (Wilmauns 2110) and equum publicum habens adlecius in V decurias (ib. 2203) 
 
X THE SENATORIAL AND THE EQUESTRIAN NOBILITY 405 
 
 ■ It was natural that an order thus definitely constituted, aud 
 which became more rigid as time went on, should end by enjoy- 
 ing 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 eminentissim/us ; the second the other equestrian praef ects 
 and higher procurators, who bore the title perfedissimi ; the third 
 — the possessors of all other equestrian posts — were egregii} 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 Eepublican and non-official epithet of splendidi.^ 
 The more definite, but equally non-official, epithet of illustris may 
 have been applied to individuals who possessed the senatorial 
 census and the latus dams, but who were passing through the 
 equestrian service in the army {equestris militia), which was 
 preparatory to entrance into the Senate.^ 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 praef ectures.* 
 
 § 7. The Fvndionaries 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, 
 
 we find the title quin. decur. J'udi{cum) {inter) quatrimgenarios (Henzen 6469), in 
 which a purely monetary qualification is expressed. 
 
 1 Wilmanns nn. 1639, 2841, Index p. 664 ; Mommsen Staatsr. iii. p. 665. 
 
 " WUmanns n. 2858 ; Mommsen ib. n. 3. 
 
 ' These might have been included in the equites illustres whom Augustus 
 forbade to set foot in Egypt (Tao. Ann. ii. 59 " vetitis nisi permissu ingredi 
 senatoribus ant equitibus Bomanis illustribus "), but the Icnights cliiefly referred to 
 here are doubtless distinguished permanent members of the order. 
 
 * The variants used by Tacitus would apply to both of these classes. He uses 
 insignis {Ann. xi. 5) and speaks of primorea equitvm {Hist. i. 4). Two ex- 
 praefects of the praetorian guard are described as equites Romani dignitaie senatoria 
 {Ann. xvi. 17). Of. note 3. 
 
406 ROMAN PUBLIC LIFE chap. 
 
 praefects, and curators, find analogies in the Eepublican con- 
 stitution ; 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 ofiices of the central government, which are either peculiar 
 to Eome 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 {urhi), the praetorian guard (jpraetorio), the 
 corn-supply (annonae), and the watch (vigihim). 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 oflSces the praefecture of the praetorian guard was the 
 highest in rank, next came that of the corn-supply, and thirdly 
 that of the watch.i 
 
 The praefecture of the city was the continuation in name, and 
 to some extent in functions, of one of the oldest oflBices in Rome ; ^ 
 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 appoint- 
 ment of the first praetor,^ 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.* 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 
 
 ' For the promotions from one praefecture to another, see Mommsen Staatsr. 
 ii. p. 1042 n. 1. 
 
 ^ p. 61. s p. 120. 
 
 ■• Tao. Ann. vi. 11 [17] "duratqne simulacrum, quotieus oh ferias Latinas 
 praefioitur qui oonsulare muuus usurpet." 
 
X THE FUNCTIONARIES OF THE PEINCEPS 407 
 
 praefecH in Rome to administer the affairs of the city during his 
 absence ; ^ Maecenas had had a similar, though less definite, 
 position given him by Augustus ; ^ and when the latter became 
 Princeps, the praefecture between the years 27 and 24 b.o. 
 became a more regular, although still an occasional office, and was 
 renewed from time to time by Augustus during his absences from 
 the capital.^ Tiberius' long periods of retirement made it practi- 
 cally perpetual,* and under subsequent reigns the praefeot remains 
 in office even when the Princeps is present in Eome.^ It was, 
 perhaps, due to its associations with the Republican magistracy 
 that this office was filled by a senator and a consular.® 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,^ is yet accounted a magistrate, and is 
 even credited with impermtn.^ 
 
 One of the early occupants of the office * sent in his resignar 
 tion six days after his appointment on the ground that he had 
 held an incivilis potesfas ; 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-Eepublican authority. The praefect was 
 briefly the guardian of the city {custos urbis), and nothing that 
 could be construed as a part of that tutela^" was exempt from 
 his control. It was his duty to keep order everywhere, at the 
 
 ' Suet. Caes, 76 " praefeotos . . . pro praetoribus oonstituit, qui absente se res 
 urbanas administrarent " ; Dio Cass, xliii. 28 iroXtand/iois nrlv 6/CTii, ffis mn Sokci, 
 fl f|, lis liSXKov ireirlffrevrai, invrpiij/as. 
 
 ^ Tao. Ann. vi. 11 [17]. 
 
 ' Tac. 1.0. ; cf. Dio Cass. liv. 19. 
 
 * In Tao. Arm. vi. 10 [16] it is said of L. Piso (died 32 a.d.) "praefeotus 
 urbi reoens continuam potestatem et insolentia parendi graviorem mire tempera vit." 
 
 " We find Maximus as praefeot during Caligula's presenoe in Eome in 39 a.d. 
 (Dio Cass. lix. 13). 
 
 ° Tao. Ann. vi. 11 [17] " (Augustus) sumpsit e oonsularibns." 
 
 ' Vita Commodi 14 " praefectos urbi eadem faoilitate mutavit " ; Viia Pii 8 
 " suocessorem viventi bono judioi nuUi dedit nisi Orfito praefeoto urbi, sed petenti." 
 For the frequent life-long tenure of the oiEoe see Dio Cass. lii. 24. 
 
 8 Paulus in Dig. 5, 1, 12, 1 "(Judioem dare possunt) hi quibus id more 
 oonoessum est propter vim imperii, siout praefeotus urbi oeterique Bomae 
 magistratus " ; contrast Pompon, in Dig. 1, 2, 2, 33 "nam praefeotus annonae 
 et vigilum non sunt magistratus, sed extra ordinem utilitatis causa oonstituti 
 sunt." 
 
 • Messala Corvinus, praefeot circa 25 B.o. (Jerome in Euseb. Gh/i'on. a. 
 1991). • 
 
 '" Seneca Up. 83, 14 "L. Piso urbis oustos . . . officium . . . suum, quo 
 tutela urbis oontinebatur, diligentissime administravit. " 
 
108 ROMAN PUBLIC LIFE chap. 
 
 games as in the market, and for this purpose he had at his 
 disposal the city cohorts (cohortes urbanae) established by 
 Augustus/ three divisions of which were quartered in Eome 
 during the reign of Tiberius.^ 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.^ 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* 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.* He might 
 at this time inflict the severest punishments, even deportation 
 or condemnation to the mines.® His police control and criminal 
 jurisdiction extended to the limit of a hundred miles from 
 Eome.^ Within the city he might judge in person ; jurisdiction 
 in Italy he exercised through delegates.* He also possessed a 
 certain civil jurisdiction connected with his functions of pre- 
 serving order,* and finally became the court of appeal, in civil 
 cases, from of&cials in Eome.^" But he was not a final court, for 
 a further appeal lay from the praefect to the Emperor. 
 
 1 Suet. Aug. 49. " Tao. Ann. iv. 5. ' Dig. 1, 12. 
 
 ' Tao. Ann. xiv. 41 (a.d. 61) "pari ignominia (interdiction from Italy) 
 Valerius Pontious adficitur, quod reos, ne apud praefectum urbis arguerentur, ad 
 praetorem detulisset, interim specie legum, mox praevarioando ultionem elusunis." 
 
 ^ Dio Cass. lii. 21 Koi rhs SUas, rds re irapa irdvruv &v ehrov apx6vTU3V 
 i^Gfflfiovs T€ Kal dvaTTOfiirifiovs Kol Tas tov davdrov, rots re iv r§ irdXei, ttX^j* Cbv 
 &y eiirbtf Kal tols ^^u a&TTJs fJ.i'Xpi irevT'^KovTa Kal eTrraKofficiiv araSluv oUouffi 
 Kplvr); Ulp. in Dig. 1, 12, 1 "Omnia omniifo crimina praefectura urbis sibi 
 vindicavit [a praefectura urbis sibi vindicari, Momms.'\, neo tantum ea, quae 
 intra urbem admittuntur, verum ea quoque, quae extra urbem intra ItaUam 
 [intra o lapidem, Momms., of. 1, 12, 1, 4] epistula divi Severi ad Fabium Cilonera 
 praefectum urbi missa declaratur." ^ Dig. 1, 12, 3 ; 48, 19, 8, 5. 
 
 ' Gollatio 14, 3, 2 ; Dig. 1, 12, 1, 4. Of. note 5. 
 
 ' Ulp. in Dig. 1, 12, 3 " Praefectus urbi, cum terminos urbis exierit, potestatem 
 non habet : extra urbem potest jubere judicare." 
 
 ' Dig. 1, 12, 1, 6 " Sed et ex interdiotis quod vi aut clam aut interdicto unde 
 vi audire [aut unde vi adiri, Momms.'] potest." 
 
 " Dio Cass. lii. 21 (quoted n. 5); God. 7, 62, 17 (Constantine, A.D. S22) "si 
 apud utrumque praetorem, dum quaestio ventilatur, ab aliqua parte auxilium pro- 
 vocationis fuerit objectum, praefecturae urbis judicium sacrum appellator observet." 
 
X THE FUNCTIONARIES OF THE PRINOEPS 409 
 
 The praefedm praetmio was in origin the commander of the 
 Emperor's bodyguard. This corps d'ilite, 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./ 
 and became the police of Italy, the selected home force composed, 
 unlike the legions, mainly of Italian citizens,^ 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 ofScials, 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 ofiice illustrates its power, and this 
 was recognised when Vespasian sought security by giving the 
 praefecture to his own son Titus,^ or Severus married his elder 
 son to the daughter of his praefect Plautianus.* 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.* 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 ofiice 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 
 
 ^ Dio Cass. liii. 11. 
 
 '■' Tao. Arm. iv. 5. Otho speaks of the corps as "Italiae alumni et Eomana 
 vere juventus " (Tac. Uist. i. 84). 
 
 » Suet. Tit. 6. '' Vita Severi 14. 
 
 " T4o are regarded as the normal number hy Dio Cassius (lii. 24). Three are 
 found under Commodus, Didius Julianus, and Severus Alexander. See Mommseu 
 Staatsr. ii. p. 867. 
 
no ROMAN PUBLIC LIFE chap. 
 
 Severus. The judicial aspect of the office was now paramount. 
 The praefect has become the highest criminal judge in Italy 
 outside the hundredth mile-stone ; ^ he is the court of appeal 
 in criminal cases from all provincial governors,^ and judges in 
 those cases which the provincial governor was not competent to 
 decide.* He is also the court of appeal from provincial governors 
 in civil cases.* This extensive jurisdiction was a result of the 
 centralisation of judicial power in the Emperor, which we have 
 already traced.^ 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.* This did not mean that the Emperor ceased to 
 ju.dge ; 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,'' which attained a definite organisation in the reign of 
 Hadrian;* and this probability is scarcely shaken by the fact 
 that we find special consiliarii nominated for the praefect,^ 
 for he exercised a varied jurisdiction and might be holding 
 a court at the same time as the Emperor. Apart from jurisdic- 
 tion, his general mandates and ordinances had legal force, 
 
 ' Oollatio 14, 3, 2. The right was given by constitutions ("jam eo perventum 
 est constitutionibus "). The citation is from XJlpian, and this jurisdiction had 
 doubtless been attained before the time of Caracalla. Of. Vita Alex. 21. 
 
 2 God. 9, 2, 6, 1 (Gordian, a.d. 243, with reference to appeal against apraeses 
 promnciae on the ground of condemnation in absence) "praefectos praetorio 
 adire cura." 
 
 ' ib. 4, 65, 4, 1 (Alexander, A.D. 222) "si majorem animadversionem exigere 
 rem deprehenderit (praeses provinoiae), ad Domitium XJlpianum praefeotum 
 praetorio et parentem meum reos remittere cnrabit " ; cf. 8, 40 [41], 13. 
 
 * Diff. 12, 1, 40 " Lecta est in auditorio Aemilii Papiniani praefecti praetorio 
 juris oonsulti cautio hujusmodi " ; cf. 22, 1, 3, 3. 
 
 5 p. 386. 
 
 * Dig. 1, 11, 1, 1 (Arcadius in early part of fourth century A.D.) " praefectornm 
 auotoritas ... in tantum meruit augeri ut appellari a praefectis praetorio non 
 possit. Nam cum antea quaesitum fuisset an liceret . . . et extarent exempla 
 eorum qui provocaverlnt, postea publice sententia principal! leota appellaudi 
 facultas interdicta est;" Ood. 7, 62, 19 (Constantine, a.d. 331) "a praefectis 
 autem praetorio provocare non sinimus." 
 
 ' Cf. Vita Marci 11 "habuit secum praefectos, quorum et auctoritate et 
 periculo semper jura dictavit." 
 
 ' See bejow on the consilium. 
 
 ' 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. 
 
X THE FUNCTIONARIES OP THE PRINCEPS 411 
 
 provided that they did not conflict with laws or imperial 
 constitutions.'^ 
 
 During the greater part of the Principate equestrian rank 
 was a necessary qualification for this praefecture. Senators 
 first began to hold this ofiice from the time of Severus Alexander, 
 who gave his praefects senatffria dignitas and the title clarissimm,^ 
 for it was held that one who pronounced judgment on a senator 
 should himself be of senatorial rank.^ At the time when the 
 praefect was a knight, dismissal from ofiice often took the form 
 of making him a senator or a member of the senatorial order.* 
 
 The praefedus 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.,^ 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.^ In the early Principate the duty belonged 
 technically to the aediles cereales instituted by Caesar;^ but 
 epochs of scarcity led to its being taken over by the Princeps. 
 Augustus accepted the task in 22 B.C.,® but whether as a per- 
 manent cura is uncertain,^ 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.^" Finally, as a definite cv/ra of the 
 Princeps, it was given to a praefect. The cwra amnonae as under- 
 taken by the Princeps involved two charges ; firstly, the gratui- 
 tous distribution of corn to the poorer classes at Rome, and 
 secondly, the placing of corn on the Roman market for pur- 
 chasers as well as recipients. It was with the latter of these 
 duties that the praefect was chiefly, perhaps exclusively, con- 
 
 ' Ood. 1, 26, 2 (Alexander, a.d. 235) " Formam a praefecto praetorio datam, 
 etsi generalis sit, mmime legibus vel constitutionibus contrariam, si nihil postea 
 ex auotoritate mea innovatnm est, servari aequuin est." 
 
 2 Vita Alex. 21. 
 
 ' ib. " Alexander autem idciroo senatores esse voluit praef. praet., ne quis non 
 senator de Eomauo seuatore judioaret. " 
 
 * ib. "si quis imperatorum sucoessorena praef. praet. dare vellet, latiolaviam 
 eidem . . . summitteret " ; cf. Vita Oommodi i ; Vita Sadriani 8 " cum Attianum 
 ex praefecto praetorii ornamentis consularibus praeditum faceret senatorem." 
 
 ° Cic. ad Att. iv. 1, 7 ; Die Cass, xxxix. 9. 
 
 ' Die Cass. xlvi. 39. ' Dig. 1, 2, 2, 32. 
 
 8 Dio Cass. liv. 1 ; Mon. Anc. Gr. iii. 6. 
 
 ' Mommsen Staatsr. ii. p. 1038 n. 1; Hirsohfekl Verwaltungsgesch. p. 130 n. 1; 
 Karlowa Rechtsgesch. i. p. 553. 
 
 " Dio Cass. liv. 17 ; Iv. 26. 
 
412 ROMAN PUBLIC LIFE chap. 
 
 cerned.^ 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.^ Assistance was furnished him by subordinate 
 officials in Eome 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 navicudarii,^ "associations that originally leased 
 their services to the state and finally became its instruments." * 
 The praefect possessed a jurisdiction arising from his adminis- 
 trative duties. He listened to criminal informations touching 
 the public supply of corn,^ and seems even to have heard certain 
 civil actions arising out of the corn trade.* The appeal from his 
 judgment went immediately to the Emperor.' 
 
 The institution of the praefectus vigilum was equally the result 
 of the Emperor's undertaking a special department of adminis- 
 tration that had formerly belonged to Republican magistrates. 
 The guardianship of the town against fires and nocturnal dis- 
 turbances had belonged chiefly to the triumviri capitales,^ and in 
 a more general way to the aediles. But the Republican appli- 
 ances were found insufficient, and Augustus formed an early 
 scheme for giving the curule aediles a fire-brigade of six hundred 
 slaves.® Even this did not prove satisfactory, and in a.d. 6 he 
 undertook the new cwra — 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. i* 
 This praef ecture was, like that of the corn-supply, equestrian, and 
 the two differ little in rank ; for, although the p-aefedura annonae 
 was reckoned superior, direct promotion from the command of 
 the vigiles to that of the praetorian guard is found. ^^ The 
 
 ' Praefecti frumenii dandi are found, apparently for the purpose of distribu- 
 tion, as late as the second century. They were generally ex-praetors and 
 appointed ex senatus consuUo, probably because the aerwrium bore or contributed 
 to the cost. See Mommsen Staatsr. ii. p. 673 ; Karlowa Rechtsgesch. i. p. 553. 
 
 * Dio Cass. lii. 24 ; Seneca de Brev. Vitae 19, 1. 
 ' Hirschfeld in PhUologm 1870, pp. 79 If. 
 
 * Karlowa Rechtsgesch. i. p. 556. 
 
 = Dig. 48, 2, 13 ; cf. 48, 12, 1. » ib. 14, 5, 8 ; 14, 1, 1, 18. 
 
 ' ib. 14, 5, 8 "sententiam (praefecti annonae) conservavit imperator"; cf. 
 Dio Cass. lii. 33. 
 
 ' p. 235. 9 Dio Cass. liv. 2. 
 
 '» Paulus in Dig. 1, 15, 1 and 3. " Karlowa Rechtsgesch. i. p. 558. 
 
X THE FUNCTIONARIES OF THE PRINOEPS 413 
 
 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 ; ■"• but the higher jurisdiction in such cases 
 belonged to the p-aefectvs v/rbi, and the praefect of the watch 
 could not try Eoman citizens on capital charges.^ In the third 
 century he possessed some civil jurisdiction in matters connected 
 with leases and house-rent.^ 
 
 (ii.) Tlie Gwrators. — There were certain cwae undertaken by 
 Augustus which he did not give to equestrian praefects, but to 
 senatorial ewratores. These cwae of the roads of Italy, of the 
 public worts, of the public water-supply, and of the channel and 
 banks of the Tiber {viarvm, (yperwmpvMicorwm, aqmrvmpublicarwm, 
 alvei et riparum Tiberis), were filled by nomination of the Princeps, 
 but their holders were perhaps, like the praefects of the aerariwii, 
 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, cpera puUica, and the like was concerned with sohim 
 publicwn, and " the public soil in Kome and Italy was, even after 
 the foundation of the Principate, not the property of the Em- 
 peror but of the people or the Senate." * Hence in the early Princi- 
 pate the pecuniary means for this administration was guaranteed 
 from the aerarmm, the fiscus merely contributing.* Hence too the 
 occupation of these posts by senators and their method of 
 appointment. In 1 1 B.C. Augustus nominated curatores aguarwm 
 with the consent of the Senate {ex consensu senatus, ex senatus 
 auctoritate) ; " the ewratores operwm pMicorum and via/rum were per- 
 haps nominated in the same way, and the ewratores of the Tiber 
 were in Tiberius' reign appointed by lot.'' 
 
 1 Dig. 1, 15 ; cf. 12, 4, 15 ; 47, 2, 57 [56], 1. 
 
 2 ih. 1, 15, 3 and 4; Cod. 1, 43,1. 
 
 ' Dig. 19, 2, 56 ; 20, 2, 9. Praefecti mgilum (one of whom is the jurist 
 Herennius Modestinus) talce part in a controversy which has come down to us 
 known as the lis fuUormm (Bruns Pontes; O.I.L. vi. n. 266). The case has 
 been discussed by Bethmann-Hollweg Givilprozess ii. p. 767 n. 60 and Mommsen 
 in C.I.L. I.e. ; Staatsr. ii. p. 1058 n. 3. 
 
 * Karlowa Mechtsgesch. i. p. 539. 
 
 ^ Coins of 16 B.C. exist (Bckhel 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 " aerarinm in suum statnm restltnit. Ad opera 
 piiblica certum sumptum constituit. Eeformandis viis pecuniam oontulit. " 
 
 " Frontinus de Aquaed. 100 and 104. ' Dio Cass. Ivii. 14. 
 
414 ROMAN PUBLIC LIFE cuap. 
 
 (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 
 prindpatus^ were concerned, the Princeps adopted the analogy 
 of the Roman house, not of the Roman state, and employed 
 either general agents (procuraiores) or assistants designated by 
 the secretarial or other duty which they performed {ab epistulis, 
 a rationihus, 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 approxi- 
 mate to the condition of a mere bailiif, 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),^ 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 ac- 
 cordance with this distinction, the officials of the Principate who 
 bear such titles as ab epistulis, a lihellis, 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,* 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 ; * but no comprehensive attempt seems to have 
 been made to reorganise the bureaucracy on this footing until 
 the time of Hadrian.® Henceforth the higher grades were held 
 as a rule by knights, only the lower being possessed indifi"erently 
 by equites or freedmen.* The procuratorship was the patent of 
 
 1 Tao. Hist. i. 58. ■■= Cio. pro Caec. 20, 57. 
 
 ' Tao. Ann. iv. 6 "intra paneos libertos domus." 
 
 * Tao. Hist. i. 58 "Vitellius ministeria principatus per libertos agi solita in 
 equites Romanos disponit." In Otlio's reign we find a mention of Secundus the 
 rhetor inl rfiv iiruxroKiav yevdfievos (Pint. Otho 9). 
 
 ° The evidence for Hadrian's change is mainly epigrapliio. See Hirschfeld 
 Verwaltungagesch. i. p. 32. Two instances of it are found in Vita Badr. 22 " ab 
 epistulis et a libellis primus equites Romanos habuit." * Dio Cass. Iii. 25 
 
X THE FUNCTIONARIES OF THE PEINCEPS 415 
 
 equestrian nobility (equestris nohilitas)} and we have seen that 
 titles were finally devised to express the differences in procura- 
 torial rank.2 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,^ and who, after the second 
 century, had generally filled every grade before they took the 
 procuratorship.* 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 sus- 
 pecting 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 freed- 
 man, although a more corrupt, was, on the whole, a more capable 
 administrator. The military supply was not, however, altogether 
 suflBcient, 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 
 ofiicial power. Tiberius' emphatic statement that his procurator's 
 business was merely to manage the Emperor's slaves and personal 
 property^ 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 manage- 
 ment " was the limit of their power.* It was only when they 
 kept within these bounds that their acts had all the authority 
 
 ^ Tao. Agrie. 4 " Cn. Julius Agrioola . . . utrumque avum proouratorem 
 Caesarum habuit, quae equestris nobilitas est." • 
 
 2 p. 405. 
 
 " i.e. the posts of praefeetus cohortis, tribunus rmlitum, praefedus alae. Sea 
 Suet. Claud. 25. 
 
 * Hirsohfeld op. cit. p. 248. 
 
 !> Tao. Arm. iv. 15. See p. 395. 
 
 ' 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 geiere 
 oonimissum est " 
 
416 ROMAN PUBLIC LIFE chap. 
 
 of those of the Princeps himself.i But the extending spheres 
 of their operations rendered it impossible for these limits to he 
 rigorously preserved. Claudius asked and obtained that his 
 procurators should be permitted jurisdiction within their own 
 financial departments^ — an almost necessary result of the fact 
 that in the provinces (and especially in those under senj-torial 
 management) there was no convenient court of arbitration to 
 decide when money was or was not owing to the Princeps.^ 
 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 govern- 
 ment 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 refer- 
 ence to the central department at Eome. Such are procurator 
 summarum found in an inscription of Nero's time and borne by 
 a freedman,* pivcuratores rationum snimmarwrn,^ rationalis summae 
 rei,^ dispensator or dispensator summarum,'' and mlieus summarum.^ 
 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 rationihus was reserved for the chief 
 controller of the fiscus. After the reign of Hadrian this post 
 was reserved for equites,* and the members of the central bureau 
 had a higher standing than the financial agents in the provinces. 
 The title procuratm' rationum swmmarwm, 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.^" 
 
 » Dig. 1, 19, 1. 
 
 ^ Suet. Olavd. 12 "ut . . . rata essent, quae proeuratores sui in judioaudo 
 statuerent, preoario 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). 
 
 ^ 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." 
 ■ < Henzen 6525. " Wilmanns 1259, 1262. 
 
 « Cod. 3, 26, 7. ' Suet. Vcsp. 12 ; Henzen 6396. 
 
 * C.I.L. V. n. 737. ' Hirschfeld VerwaUungsgesch. i. p. 32. 
 
 "> ib. p. 35. 
 
X THE FUNCTIONARIES OF THE PRINCEPS 417 
 
 The title rationalis, which was often identical with prociwator,^ 
 seems at some period within the third century to have replaced 
 a raivmibus as the designation of the chief officer of the ^sints.^ 
 
 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 jkcuis, 
 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 (Jiscus castrensis), and at the head of it a 
 procurator castrensis, who superintended the payments made to the 
 soldiers,^ 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.* Such were lapsed 
 legacies and the goods of the condemned (bona caduca and 
 damnatorum), after the Jiscus had asserted its claim to these 
 revenues,^ and the taxes owed by Roman citizens everywhere, 
 such as the vicesima hereditatum and the centesima rervm venalivm. 
 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 cvira 
 annonae, and even the most peacefijl 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 patrimomi 
 privati).^ We have already noticed that after the time of Severus 
 a distinction was drawn between the res privata and the patri- 
 monivm of the Emperor.^ From this time onward the procurator 
 rervm privatarvm is distinct from the procmator patrimonii.^ 
 
 ^ Of. the title of Dig. 1, 19 "De officio proouratoris Caesaris vel rationalis." 
 ' Hirschfeld, op. cit. p. 37 ; Lietenam Beitr&ge zw Verwaltungsgesch. p. 32. 
 ' Strabo iii. p. 167. The title a copiis militaribas is found in inscriptions 
 (Orelli 2922, -3505) 
 
 * Tac. Arm. ii. 47. Here it is said of cities of Asia, "quantum aerario ant 
 fisoo pendehant, in quinquennium remisit (Caesar)." The proawrator Asiae of 
 Ann. iv. 15 is probably a, procwator patrimonii. See p. 395. 
 
 * p. 395. For procurators ad bona dammatorum see Wilmanns 1278, 1291. 
 For a procurator a caducis, G.I.L. iii. n. 1622. 
 
 6 Wilmanns 1257, 1272, 1273, 1275, 1285. 
 '' p. 396. 
 
 8 Timesitheus, the father-in-law of Gordian, wasproc. tarn patrimoni guain rat. 
 privatar. in one district, proc. ration, primat. in another (Wilmanns 1293). 
 
 2 E 
 
418 ROMAN PUBLIC LIFE chap. 
 
 The non-financial procurators, who were actually governors of 
 districts, will be discussed when we are dealing with the organis- 
 ation 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,^ 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 trecenarms, duce- 
 narius, 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 procwatio 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 procwatio.^ Promotion 
 seems to have been dejtermined 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,^ 
 but, as a rule, several procuratorships were passed through before 
 this summit of equestrian ambition was attained.* 
 
 (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 a6 epistulis 
 and a libeUis, might be suspected of treasonable designs.^ These 
 
 ^ Herodian vii. 1 (Maximin) t-^v re Bepairdav irdcrav, fj (ruyyeyocei rep 'AXe^di/Spqi 
 TO(rQ&riov irStVj ttjs ^acnXeiou ai\TJs dir^irefi^e : cf. Vita P&rt, 12 "Sane nullum 
 ex eis, quos Commodus rebus gerendis imposuerat, mutavit, exspectans urbis 
 natalem, quod eum diem rerum prinoipium volebat esse." 
 
 ^ Liebenam op. eit. p. 55. 
 
 ' Vita Nigri 7 "cum unus ad memoriam, alter ad libellos paruisset, statim 
 praefecti faoti sunt (Paulus et Ulplanus)." 
 
 * This may be illustrated by the careers of Burrus {proc,. Augustae, proc. Ti. 
 Oaesams, proc. dim Olawdii, praefecto praetori, C.I.L. xii. 6842), of Vibianus 
 TertuUus (ah epistulis Graecis, proc. a rationibus, praefectus vigilum, C.I.L. iii. 
 6574) and of Sex. Var. Marcellus {proc. aquwrum, proc. Brittaniae, proc. rationis 
 privatae, vice-prae/ectus praetorio, Orelli 946). 
 
 ^ Tac. Ann. xv. 35 (under Nero, in a.d. 64, Torquatus Silanns was forced to 
 death on various grounds) " quin eum inter libertos habere, quos ab epistulis et 
 libeUis et rationibus appellet, nomina summae curae et meditamenta " ; cf. ib. 
 xvi. 8 (a.d. 65) " Ipsum dehinc Silanum increpuit isdem quibus patruum ejus 
 
X THE JTUNCTIONARIES OF THE PKINCEPS 419 
 
 secretaryships became, in fact though not in law, great oflSces 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 consuUationes of officials, to the despatches of generals and 
 provincial governors, or to deputations from foreign com- 
 munities, together with the nomination of officials and officers 
 and the conferment of privileges, passed through his hands.^ 
 
 The official a IMUs drew up the answers to petitions (p-eces, 
 libelli) ^ made by private individuals to the Emperor. The 
 answer was generally given in a short subscriptio appended to the 
 document.^ 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.^ The office was in existence at the 
 beginning of the third century,^ but is thought to have been 
 subsequently merged in that a Ubellis.^ 
 
 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) "^ such 
 
 Torquatum, tanquam disponeret jam imperii ouras praefioeretque rationibus et 
 libellis et epistulis libertos." 
 
 ^ Dio Cass. lii. 33 ; Stat. Silv. v. 1, esp. 83-107 ; Justinus xliii. 5, 12 ; Suid. s.v. 
 
 2 Seneca Cons, ad Polyb. vi. 4 and 6. 
 
 ^ Vita Oanm 16 "fastidium subsoribendi tautum habuit ut inpurum quendam 
 . . . ad subsoribendum 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 subsoriberet." 
 
 * Karlowa Rechtsgesch, i. p. 545. 
 
 " Dio Cass. Sp. Ixxviii. 13. 
 
 ° Karlowa l.c. 
 
 ' Vita Carini 8 " Julius Calpurnius, qui ad memoriam dictabat." He attended 
 the Princeps with the other secretaries ; see Vita Alex. 31 " Postmeridianas horas 
 subsoriptioni et leotioni epistularum semper dedit, ita ul ab epistulis, a libellis et 
 a memoria semper adsisterent." 
 
420 ROMAN PUBLIC LIFE chap. 
 
 speeches and verbal decisions of the Emperor as did not fall under 
 the competence of the other oflBcials. 
 
 (y.) The Consilium. — The consilmm of the Princeps ^ was merely 
 a renewed manifestation of that eternal principle of Eoman public 
 life which directed that a magistrate should seek advisers. A 
 council was necessary for public confidence, but an imperial con- 
 dlivm was originally no part of the constitution of the Principate. 
 Tiberius imitated Augustus in seeking advice before coming to a 
 decision on important matters ; ^ yet when he sat as a high 
 court of criminal jurisdiction, his board of assessors could be 
 described as consisting of a " few friends." ^ 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.* 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.* They 
 included both senators and equites,® and some bore the title 
 jwrisperiti.'' Others may not have been gifted with special know- 
 ledge 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 
 
 ^ This consilmm must not be confused with the committee of the Senate which 
 had heen 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 wa."! 
 devised by Mamaea in the reign of Severus Alexander (Dio Cass. Ixxz. 1 ; 
 Herodian vi. 1). 
 
 2 Dio Cass. Iv. 27 ; Ivii. 7. 
 
 ' Tac. Ann. ili. 10 " pauois familiarium adhibitis '' (in the trial of Piso, a.d. 
 20). In Nero's trial of Ootavia in a.d. 62 his body of advisers ("amioos quos 
 velnt consilio adhibuerat princeps " Tac. Ann. xiv. 62) may have been regarded 
 as a consiliimi domeatiau/m. 
 
 * Vita Hadr. 18 "cum judicaret, in consilio habuit non amicos suos aut 
 comites solum, sed juris consultos . . . quos tamen senatus omnes probasset. " 
 
 ^ Hirschfeld VerwaUwngsgesch. i. p. 215. Probably only the equestrian 
 members of this board received salai^es (Mommsen Staaisr. ii. p. 990). 
 
 ' Cf. Vita Hadr. 8 "erat . . . tunc mos, ut, cum princeps causas agnosceret, 
 et senatores et equites Romanos in consilium vocaret et sententiam ex omninm 
 deliberatione proferret." 
 
 ' e.g. " centenario consiliario Aug(usti) . . . juris perito " (Wilmanns 1286). 
 
X THE FUNCTIONARIES OF THE PEINCEPS 421 
 
 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 constUutiones,^ and we are told that for this puipose 
 Severus Alexander was assisted by twenty jurisperiti out of a con- 
 silivm numbering seventy in all.^ 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.^ The 
 mode of consultation was wholly informal and depended on the 
 discretion of the Princeps. Augustus in the exercise of his juris- 
 diction distributed voting tablets (tabellae) to his councillors, on 
 which they could inscribe acquittal or condemnation or a 
 modified verdict.* We cannot imagine that the votes were 
 reckoned as in the jury system. The tabellae were for the en- 
 lightenment 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.® Under Severus Alexander opinions were given 
 verbally and taken down in short-hand.® 
 
 We have already shown that it is probable that the imperial 
 consUmm in its developed form was employed by the praefect of 
 the praetorian guard when he gave judgment vice the Princeps.^ 
 
 1 p. 380. 
 
 ' Vita Alex. 16 "neque ullam constitutionem saoravit sine viginti jurisperitia 
 et doctissimis ac sapientibus viris isdemque disertissimis nan minus quinquaginta." 
 
 ' In Maecenas' supposed advice to Augustus, which in this, as in other respects, 
 probably reflects the practice of the time of Dio Caasius, it is said of the consiUam 
 dXXoi SkKore SiayivuixKiTiiKxav (Dio Cass. lii. 83). 
 
 * Suet. Aug. 33. 
 
 » Suet. Nero 15. 
 
 ' Vita Alex. 16 "ut iretur per aententias singulorum ao soriberetur quid 
 quisque dixisset." 
 
 ' p. 410. 
 
CHAPTEE XI 
 
 ITALY AND THE PROVINCES UNDEE THE PEINCIPATE 
 
 § 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 Eepublic 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.^ 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 unifi- 
 cation of Italy with the capital. He divided the peninsula, 
 exclusive of the immediate territory of Rome, into eleven regions 
 (regiones).^ 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.' They were employed, therefore, for work which neces- 
 sarily 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 domi- 
 nated Italy as efiectually as it controlled Rome. But its coming 
 was very gradual. The final change may be illustrated by the 
 
 1 p. 314. 
 
 ^ Plin. ff.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 regioiies xi." 
 
 ^ See the references in Marqnardt Staatsverw. i. p. 220. 
 
CHAP. XI ITALY UNDEK THE PRINCIPATE 423 
 
 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 
 cwriata} 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 alter- 
 native 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.^ 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.^ The elective power of the assemblies no doubt 
 survived all their administrative functions. The tendeucy 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 illus- 
 trated, 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 consularisA 
 These magistrates were replaced under Marcus Aurelius by 
 juridici ^ 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.^ 
 
 ' Lex Medacitana a. lii. ff. 
 
 ^ Kuhn Verfassung des riimischen Reiches i. pp. 236, 237. In an inscription 
 of Hadrian's time we find in Ostia II. vir . . . in comitiis f actus (O.I.L. xiv. 375). 
 For this and other instances see Liebenam StadUverwaltung p. 479. 
 
 3 p. 438. 
 
 * Vita Badr. 22 "quattuor consulares per omnem Italiam jndices constituit." 
 Of Antoninus Pius, -vrho was one of these, it is said "cum Italiam regeret" (Vita 
 Anton. 3). Cf. App. U.O. i. 38. 
 
 ^ Vita M. Anton. 11 "datis juridicis Italiae consuluil ad id exemplum, quo 
 Hadrianus consulares viros rsddere jura praeceperat." 
 
 « Ulpian in Fragmenta Vaticana 205, 232, 241. 
 
424 ROMAN PUBLIC LIFE chap. 
 
 These oflBcials are mentioned only in connexion with extraordinary 
 jurisdiction concerned with trusts, the nomination of guardians,^ 
 or questions of administrative law, such as a controversy 
 concerning the qualification for the decurionate.^ But, as extra- 
 ordinary jurisdiction was gaining the upper hand of the jus ordm- 
 wrium, and as such administrative questions would at an earlier 
 period have been settled by the municipalities themselves,^ the 
 powers of the jwridici 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 Home 
 such cognisance belonged to the praefect of the city, outside this 
 limit to the praefect of the guard.* 
 
 The financial difiiculties 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 pMicae, 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.^ 
 
 But an even more vigorous control was impending, which was 
 to bring Italy nearer to the condition of a province. The extra- 
 ordinary commissioners known as corredores (SiopOoyrai), whom 
 the Principate often gave to free cities or districts in the pro- 
 vinces,® were finally transferred to Italy .^ 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 administra- 
 tion 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 
 
 1 UIp. 1.0. ; Dig. 40, 5, 41, 5. 
 
 ^ Fronto ad Amicos ii. 7. 
 
 ' Marqnardt {Staatsverw. i. p. 227) remarks that such a question as the quali- 
 fication of a deourion belongs under Caesar's legislation {lex Ursonensis a. 105) to 
 the municipal courts. 
 
 * pp. 408, 410. 
 
 ^ Mommsen Staatsr. ii. p. 1082, Liebenam StOdteverw. p. 480, and in Philo- 
 logus Ivi. 290 ff. How far this curatorship became a standing office is'uncertaln 
 
 « p. 428. 
 
 ' 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 Staats- 
 verw. i. pp. 228, 229). 
 
XI ITALY UNDEE THE PRINCIPATE 425 
 
 provinciae, but its districts were placed under regularly-appointed 
 corredores, and its lands supplied revenues to the imperial court 
 and to Eome. This climax of centralisation was probably the 
 inevitable result of the imperial system and the external circum- 
 stances 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 almenfanwn. 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 ; ^ and from the reign of Nerva the 
 state, as represented by the Princeps, took up the enterprise. 
 .Nerva's example was followed by Trajan,^ who extended and 
 organised the system, and similar efforts were made by Hadrian, 
 Antoninus Pius, Marcus Aurelius, and Severus Alexander.^ 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 2|- 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.* The details of this organisation 
 
 ' See the inscription of Atina of the time of Augustus (Wilmanns 1120), "T. 
 Helvio . . . legato Caesaris August!, qui Atinatibus HS . . . legavit, ut liberis 
 eorum ex reditu, dum in aetatem pervenirent, frumentum et postea sestertia 
 singula millia darentnr." 
 
 ^ Victor Spit. 12 ; Dio Cass. Ixviii. 5. 
 
 ' Marqnardt Staaisverw. ii. pp. 143, 144. Pius, in honour of his wife Faustina, 
 created a fund for piiellue Fausimianae (Vita 8) ; Alexander, in honour of Ms 
 mother, one for pjteH pueUaeque Mammaeani ( Vita 57). 
 
 * Our knowledge of this institution is derived chieily from two metal tables, 
 the Tahida Veleias (of Veleia in Cisalpine Gaul) and the Tabula Saebianorum (of 
 
426 ROMAN PUBLIC LIFE CH-4.P. 
 
 were supervised in each locality by a qvaestor alimentwum, while 
 the general control of the funds over a large district was 
 usually entrusted to the curators of the roads -^ which ran through 
 that domain, who sometimes bore the title praefedus, sometimes 
 that of curator alimentorum.^ 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 imtil the close of the Principate, and the praefedi, who 
 administered this department, can be traced till the time of 
 Diocletian.^ 
 
 § 2. Ths Organisation of tlie Provinces 
 
 The imperial problem of the later Eepublic — 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 view9 
 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 Ehine, 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 ex- 
 pansion, 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 ocean. The Danube, the Rhine, and the North Sea; 
 the Euphrates and the Syrian Desert ; the Ethiopian kingdoms, 
 the Sahara, and the Atlantic, were the limits within which 
 
 the Ligures Baebiani near Beneventum). See E. Desjardins Be tdbvlis alimen- 
 tariis, Mommsen m I.R.N. 1354, Wilmanns 2844, 2845. On the institution see 
 Marquardt Staatsverw. ii. pp. 141-147, Liebenam Siddteverw. pp. 105, 360. 
 
 1 p. 413. 
 
 ^ e.g. curator viae Appiae^praefectusaliimntorum: curator viarum et pra^ectui 
 aiimentorum Olodiae et colwentium : curator viae Aemiliae et aHmentorum (Wil- 
 manns 1189, 1215, 1211). See Marquardt, Liebenam U.oc., and Mommsen Staaisr. 
 ii. p. 1079. In districts not pierced by the great roads, procurators (aiimentorum, 
 ad alimenta) were employed. ' Marquardt I.e. p. 147. 
 
XI THE PKOVINCES UNDER THE PRINCIPATE 427 
 
 the Principate was to strive to make the best of the means 
 left by the victorious Pepublic 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 
 efifective, 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 im- 
 mediate 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,^ 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 vigil- 
 ance in administration — and thus created the distinction between 
 Caesar's provinces and those which were public (jmUicae) and 
 were entrusted to the care of the Senate and people.^ There 
 were occasional interchanges of provinces between the co-rulers. 
 
 ' Tac. Ann. i. 2 " Neque provinciae ilium remm statum abnuebant, suspecto 
 senatus populique Imperio ob oertaniina potentium et avaritiam magistratuum, 
 invalido legum auxilio, quae vl, ambltu, postremo peounia turbabantur. " 
 
 ' Brj/jLos Kal yepovtrla (Dio Cass. liii. 12). These provinces are " propriae popnli 
 Romani" as opposed to those "propriae Caesaris " (Gaius ii. 21). 
 
428 EOMAN PUBLIC LIFE chap. 
 
 Thus Achaea and Macedonia were relinquished by the Senate in 
 A.D. 15, but restored to it in A.D. 44,^ and Marcus Aurelius took 
 over or surrendered districts according to the necessities of war.^ 
 But in the middle of the Principate the Senate possessed but 
 eleven,^ the Princeps twenty-one under regular governors,* nine 
 administered by procurators,^ one, Egypt, ruled by an equestrian 
 praefecl. 
 
 As in the Republic, the only true provincial dvitaies 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-govern- 
 ing powers by a foederata civitas might cause the treaty to be 
 rescinded and the state to be brought under direct provincial 
 rule ; ® while, even when libertas was retained, its merits might 
 be suspected, and the state might be placed under the financial 
 tutelage of curatm-es (Aoywrrat) or the administrative care of 
 corredores {SiopOwraC) appointed by the Princeps.^ 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,® two. Magnesia ad Sipylum 
 and Apollonidea, were liherae,^ while Byzantium, which had 
 been in alliance with Rome during the Republic, also paid tribute 
 in the reign of Claudius.^" This change, which is specially 
 noticeable in the East, has been with great probability attributed 
 to Pompeius. While granting or renewing charters and privi- 
 
 1 Tac. Ann. i. 76 ; Dio Cass. Ix. 24 ; Suet. Claud. 25. 
 
 " Vita Mara, 21 "Provmoias ex prooonsularibus consulares (i.e. governed by 
 consular legati) aut ex oousiUaribus proconsulares aut praetorias pro belli neces- 
 sitate fecit." 
 
 ' Asia, Africa, Baetioa, Narbonensis, Sardinia and Corsica, Sioilia, Macedonia, 
 Achaea, Creta and Cyrene, Cyprus, Bithynia. 
 
 * 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. 
 
 " Alpea Maritimae, Alpes Cottiae, Alpes Poeninae, Raetia, Noricum, Tliracia, 
 Epirus, Mauretauia Tingitana, Mauretania Caesariensis. See Marquardt I.e. 
 
 ' Suet. Aug. 47, Glaud. 25, Fesp. 8. 
 
 ' Mommsen Staatsr. ii. p. 858 ; Marquardt Staatsverw. i. p. 358. The earliest 
 known commissioner dates from the time of Trajan. He was "missus in pro- 
 viuoiam Aohaiam ... ad ordinandum statum liberaj-um civitatum " (Plin. £^ 
 riii. 24). 
 
 * Tac. Ann. ii. 47. 
 
 » Strabo xiii. p. 621 ; Cie. pro Flacco 29, 71. " Tac. Ann. xii. 63. 
 
XI THE PROVINCES UNDER THE PRINCIPATE 429 
 
 leges, he reserved to Eome the right to tax,^ and thus dissociated 
 the ideas of Ubertas and immwiitas, 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,^ 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 lUyricum claimed by the state 
 Tyras in Moesia.^ 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.* 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,^ 
 or be accompanied by only a partial immunity.® Many states in 
 Lusitania, Gaul, Germany, Syria, and Phoenicia were made 
 coloniae and granted the jus Italicum.'^ 
 
 The two great problems in taxation which confronted the 
 early Principate were the formation of an estimate of the re- 
 sources 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,^ the geographical works 
 undertaken under the auspices of Agrippa,' and the comprehensive 
 assessments made in various provinces. The right of making 
 such assessments belonged to the Princeps,^" 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 
 
 1 Mommsen Staatsr. iii. p. 684. 
 
 "^ Mommsen points out (ib. p. 685) that, if it did, Spain after the time of 
 Vespasian would have paid no taxes. ° O.I.L. iii. u. 781. 
 
 * Dig. 27, 1, 17 ; of. Suet. Olaud. 25. 
 
 " Dig. 50, 15, 8, 5 "Divus Antoninus Antioohenses oolonos fecit salvis 
 tributis." 
 
 ^ ib. 7 "Divus Vespasianus Caesarienses oolonos fecit non adjeoto ut et juris 
 Italici essent, sed tributum his remisit capitis ; sed divus Titus etlam solum 
 immune factum interpretatus est." ' Dig. I.e. 
 
 8 "Eationes imperii" (Suet. Oal. 16), \oyur/ioi5 tQiv Stfiusaluv x/wjM''''"' (Dio 
 Caas. lix. 9). Cf. Tao. Ami. i. 11. 
 
 ' Marquardt Staatmerw. ii. pp. 207-211. " Dio Cass, liii, 17. 
 
430 ROMAN PUBLIC LIFE chap. 
 
 census of the kind was that undertaken in the three Gauls in 27 
 B.C.,^ which we find renewed in the years 14, 17, and 61 A,D.^ 
 There is a trace of an Augustan census in Spain,* and a similar 
 task was undertaken in Syria.* When these great preliminary 
 estimates were over, provision had to be made for a periodical 
 revision of the assessment. This was done under imperial con- . 
 trol and for each province separately. A special imperial decree 
 was issued, and under it the commissioner (censor, censitor, ad census 
 ocdpieTidos) ® 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 * — 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.'^ It is not known whether there 
 were fixed dates for the regular recurrence of the census in each 
 province ; * but there were taxes, such as the iributum capitis in 
 Syria, paid only by people of an age that fitted them for labour,' 
 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.^" 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 
 
 ' Liv. Ep. 134 ; cf. Dio Cass. liii. 22. 
 ' Tao. Ann. i. 31 and 33 ; ii. 6 ; xiv. 46. 
 
 ' Dio Cassius (liii. 22), after saying that Augustus made airoypa^al in the Gallic 
 provinces, adds K^VTevdev ?s re tt^j* 'l^Tjpiav oupiKero^ Kai KaTetrr^aaTO Kal 4Keivrjv, 
 
 * St. Luke ii. 2 ; Joseph. Antiq. xviL 355. 
 
 ^ See the inscriptions collected by Kuhitscliek in Pauly-Wissowa Real- 
 Enegdopadie, s.v. census. 
 
 * The tres GaUiae honour a procurator as " primus umqnam eq(ues) E(omanus) 
 a censibns accipiendis " (Wilinanns 1269). The inscription is attributed to the 
 Joint rule of Severus and Caracalla. ' Kubitschek I.e. 
 
 * The chief evidence that there was comes from the province of Dacla. 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 Pontes). 
 
 ° JHg. 50, 15, 3 " in Syriis a quattuordecim annis masculi, a duodeoim feminae 
 usque ad sexagensimum quintum annum tribirto capitis obligantur." 
 "• Grenfell and Hnnt Oxyrhynchu? Papi/ri ii, pp. 207 II. 
 
XI THE PKOVINCES UNDER THE PRINCIPATE 431 
 
 situated, the names of two neighbours, and the character of the 
 land assessed.^ 
 
 The taxes were either imposts on the land {tributum soli) or on 
 the person {tributvm ca/pitis). 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 silphiura, the Sanni in 
 Pontus wax, and the Frisii of Germany the skins of oxen.^ 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 ^ as a relic of the Ptolemaic organisation ; 
 amongst the Jews, when the SiSpaxfiov had been diverted from 
 the Jewish temple to that of Jupiter Capitolinus ; * in Britain,* 
 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,* 
 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 decv/mae with the accompanying tax-farmers 
 {decvman^ had been abolished.^ 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 trihutvm of 
 Caesar's provinces,* 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 
 
 ^ Dif. 50, 15, 4 "Forma censuali cavetur, ut agri sic in censum referantur. 
 Nomen fundi oiijusque : et in qua oivitate et in quo pago sit : et quos duos vioinos 
 proximos habeat. Et arvum . . , vinea . . . olivae . . . pratum . . . pasoua 
 ■ . . silvae caeduae. " 
 
 2 Plin. H-N: xix. 40 ; xxi. 77 ; Tao. Arm. Iv. 72. 
 
 ' Josephus Bdl. Jud. ii. 16, 4 ; of. Grenfell and Hunt I.e. 
 
 * Josephus Bell. Jud. vii. 6, 6. The Jews seem, however, to have paid other 
 personal taxes as well. See App. ^r. 60 ; Marquardt Staatsverw. ii. p. 202. 
 
 * Boadicea is made to say that, besides the land-tax, run/ ffu/idruy airav 
 dacr/ibv ir^ficnon <l>ipoixev (Dio Cass. Ixii. 3). 
 
 e 0. 1. Or. 2336. 
 ' p. 321. 
 
 * Gains ii. 21 " (prornneialia praedia) quorum alia stipendiaria, alia tributaria 
 vocamus. Stipendiaria sunt ea, quae in iis proyinoiis sunt quae propriae populi 
 Eomani esse intelliguntur. Tributaria sunt ea, quae in his provinoiis sunt quae 
 propriae Oaeswns esse creduntur." 
 
432 ROMAN PUBLIC LIFE chap. 
 
 quaestor, while in the imperial provinces the procurator came 
 into direct contact with the tax-payer. But much was still left 
 CO the efforts of private companies, and the abolition of the 
 decwmani was perhaps the sole infringement made on the vast 
 operations of the pvMicani. The extent to which the system of 
 contracting out was still employed may be illustrated by the 
 facts that "companies of Eoman knights" are said still to have 
 gathered in the pemniae vectigales — by which the portoria are 
 chiefly meant — and other pvhlici frudus — the revenues from 
 mines, salt-works, quarries, and the like — during the reign of 
 Tiberius,! ^jia^t j^ tjjg reign of Nero severe measures had to be 
 taken to repress the exactions of the publicani,^ and that these 
 state middlemen have a title devoted to them in the Digest of 
 Justinian.* Even a tax which fell to an imperial treasury, such 
 as the vicesima hereditatvm, was collected by contractors in the 
 reign of Trajan.* 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.^ 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.* In connexion with the 
 fiscus of each province there was a bureau {tabularivm) '' 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 com- 
 mand,* which had been neglected by Caesar,* was revived by 
 Augustus,!" Ij^t; considerations of fitness and another method of 
 determining seniority considerably interfered with the application 
 
 ' Tac. Arm. iv. 6 "frumenta et pecuniae vectigales, cetera publicorvun 
 fruotuum, societatibus equitum Romanorum agitabantur." Ct "societates 
 veotigaXium " (xiii. 50). ^ ib. xiii. 50, 51. 
 
 3 Dig. 39, i. * Plin. Paneg. 37. 
 
 " Procwatores and pvilicani are fonnd concerned witb the same taxes in the 
 same province, e.g. procurator nil. publicorum Africae (G.I.L. iii. 3925 ; 
 Wilmanns 1242), conductor nil. p. Afr. [G.I.L. vi. 8588). 
 
 8 p. 417. 
 
 ' Tahilarium censuale (C.I.L. ii. 4248). For the officials connected with it, 
 called tdbvlarii, see Wilmanns Index p. 572. 
 
 ' p. 323. Dio Cass. xiii. 20. >» ib. liii. 14. 
 
XI THE PROVINCES UNDER THE PRINCIPATE 433 
 
 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,^ and the jus liberorum admitted some to the smiitio in 
 preference to others.^ , All the governors of public provinces were 
 now called proconsuls, whether they had previously held the 
 consulship or not,^ in order to distinguish them from the legates 
 of Caesar's provinces, who all bore the title pro praetore. The 
 two greatest 6f 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,* 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 proconsniare 
 imperium was in many respects a mere shadow of its former self. 
 Its possessor did not wear the sword or the military dress,^ to 
 show that his command was not a military one, and in deference 
 to the full proconsulare imperiwm 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 ; ^ but even here, where the employ- 
 ment of active military power was needed, the appointment of 
 the proconsul was thrown practically on the Princeps.^ The 
 governor was also hampered by assessors ^ more carefully selected 
 than the legati of Eepublican times. The legati proconsulis pro 
 praetors, 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 juris- 
 diction was more definite and independent in the dioceses assigned 
 them than it had been in Eepublican times. Even the quaestor 
 now bears the title quaestor pro praetore,^ and exercises, besides his 
 
 ' Tac. Ann. iii. 32. In A.s, 22 it was determined a&esh that the Flamen Dialis 
 might not leave Italy, " ita sors Asiae in eum qui consnlarium . . . proximns 
 erat oonlata " (ib. iii. 71). 
 
 2 Dio Cass. liii. 13. " ih. 
 
 * "Salarium proconsulare" (Tao. Agric. 42). 
 
 ' Dio Cass. I.e. * Tac. Hist. iv. 48. 
 
 ' Tac. Arm. 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." 
 
 8 wdpeSpoi (Dio Cass. liii. 14). ' Wilmanns Index p. 553. 
 
 2 F 
 
434 ROMAN PUBLIC LIFE chap. 
 
 financial functions, a definite judicial charge — the kind of juris- 
 diction which, was in the hands of the curule aedile at Eome.^ 
 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.^ 
 
 In his own provinces Caesar was the only possessor of the 
 proconsulare impeiium? 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.* Their military 
 command was delegated, but some at least of them exercised the 
 power of life and death over the soldiers in their province.^ 
 All the legates wore the military dress and sword,® 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 Qegati 
 legionvm), while their civil authority was lessened by the circum- 
 stances 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 juris- 
 diction (legatus jwidicus),'' 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,^ while somewhat later Galba was in Spain for eight.' 
 In every case the tenure of such commands depended on the 
 Emperor's discretion,^" and the holders drew fixed salaries from 
 
 1 Gaius i. 6. On the changed position of these assistants of the proconsuls, see 
 Bethmann-HoUweg Oimlprozess ii. p. 102 ; Greenidge in Glass. Rev. ix. p. 258. 
 I pp. 417, 385. 
 '" Except when a colleague was occasionally appointed. See p. 360. 
 
 * Dig. 1, 21, 5. 
 
 ' Dio Cassius (lii. 22) attributes this power is iilivov rbv v-n-aTevKdra HpxavTO., 
 Le. to a legatus eonsularis. 
 
 * Dio Cass. liii. 13. ' Wilmanns Index p. 559. 
 8 Tac. Ann. i. 80 ; vi. 39 ; iv. 18. ' Pint. Galba 4. 
 
 1" Dio Cass. liii. 13 ; Tac. Ann. i. 80. 
 
XI THE PROVINCES UNDER THE PRINCIPATE 436 
 
 the imperial treasury.^ 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 proewratores Caesaris p-o legato.^ Some of 
 these districts, such as the three Alpine provinces, were com- 
 paratively small ; but others, such as the Mauretanias, Thrace, 
 Judaea,^ 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 procur- 
 ator 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.* 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 
 kgati, not of the separate legions, but of the armies, were them- 
 selves the governors of the districts ; they bore the title pro 
 praetore,^ and, except when the supreme command over Gaul and 
 the Germanies was assumed by a colleague of the Emperor,^ were 
 
 1 Dio Cass. liii. 23 
 
 ^ Wilmanns 1267 ; procurator vices agens legali (ib. 1622 a). The title pro- 
 cwrator et praesea 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). 
 
 3 See p. 428 ; and cf. Tac. Hist. i. 11. 
 
 ■* Josephns Anti^. Jnd. xviil. 4, 2. 
 
 ^ Leg. pro pr. exercitus Germanici superioris, legato pro pr. Germaniat 
 swperiioris) et exercitus in ea tendentis (Wilmanns 867, 1186). Cf. Tac. Ann, 
 vi. 30 " Gaetulicus ea tempestate superioris Germaniae legiones curabat." 
 
 « Tac. Ann. i. 31. 
 
436 ROMAN PUBLIC LIFE chap. 
 
 not under the control of any governor of the neighbouring Gallic 
 provinces. Egypt, in a sense a private domain of the Princeps,^ 
 and, as the key of land and sea, guarded even from the approach 
 of a man of senatorial rank,^ was entrusted to an equestrian 
 praefect (praefectus Aegypti), who exercised the reality without 
 the name of the imperivm,^ wielded all the powers of a governor,* 
 and had an army under his control. 
 
 The Eomanisation of the provinces was still effected by 
 the insensible channels which had been operative during the 
 Eepublic — social intercourse, commerce, and the forms of the 
 provincial edict. But more conscious efforts in the same direc- 
 tion 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 fulLcmte 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,^ 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 Gains, Ulpian, and Papinian. Such men had the signal 
 advantage of comparing and even practising two perfected systems; 
 
 ^ Tao. Hist. i. 11 "Aegyptum copiasque, quibus coeroeretur, jam inde a divo 
 Augusto equites Romani obtinent loco regum : ita visum expedire provinciam 
 aditu difficilem, aunonae fecundam . . . domi retinere." 
 
 ^ Tao. Ann. ii. 59 "Augustus . . . vetitis nisi permissu ingredi senatoribus 
 aut equitibus Eomanis illustvibus, seposuit Aegyptum, ne fame urgueret Italiam, 
 quisquis earn provinciam claustraque terrae ac maris . . , insedisset." 
 
 ' Ulpian (in Dig. 1, 17, 1) speaks of his having an "imperinra ... ad 
 similitudinem proconsulis. " 
 
 * Tao. Ann. xii. 60 "divus Augustus apud equestres, qui Aegypto praesiderent, 
 lege agi decretaque eorum proiude haberi jusserat, ac si magistratus Romani 
 coustituissent." 
 
 Cic. ad Att. xiv. 12, 1 ; Tac. Ann. xiii. 32 ; PHn. ir.A\ iii. 30. 
 
XI THE PEOYINCES UNDER THE PRIKCIPATE 437 
 
 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 Eoman forms, must have created something 
 like a legal revolution in this part of Rome's dominions.^ 
 
 The omnipresence of Eoman law was a fitting consequence 
 and symbol of the even, harmonious, uneventful working of 
 provincial life, and of the uniform machinery which was elimin- 
 ating 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 Eoman system. 
 
 Amidst the brilliant variety of the urban life of the Empire, 
 some uniformity had been secured even during the days of the 
 Eepublic 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 pro- 
 vincial 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.^ 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,^ 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 inscrip- 
 tions show us a wealth, a splendour, a generosity in endowment, 
 and a thirst for municipal fame, that seem a sufficient reward for 
 
 ' See Mitteis Reichsrecht und VolksrecM. 
 
 2 Cf. Plin. JSpp. ad Traj. 17 (28), 37 (46), 39 (48), 47 (56), 54 (62), 111 (112). 
 
 ' The lex Malacitana (the charter of a Latin colony in Spain founded between 
 81 and 84 a.d.) contains (o. 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 decuriou6»" (Plin. ^p. ad Traj. 113 [114]). 
 
438 ROMAN PUBLIC LIFE chap 
 
 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 decwriones or 
 curiales — which had always formed the pivot of municipal 
 administration controlled or created by Eome, but which now 
 tended to become sharply severed from the other classes in the 
 communities, and, while solely endowed with the privileges of 
 ofiice, 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 aristoci'acy 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 
 adledio of otherwise unqualified members,^ a tendency which 
 reveals an anxiety to preserve the maximum numbers of the 
 order. This admission is effected by the board itself, and pre- 
 pares 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 accord- 
 ance with which the previous possession of office is a necessary 
 qualification for the curia,^ 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.3 
 
 ' See Marquardt Staatsverw. i. p. 190 ; Kuhn Verfassung des rSmischen Reichs i. 
 p. 238. Cf. Plin. ad Traj. 112 (113) "ii quos indulgentia tua quibusdam civitati- 
 bus super legitimum numerum adioere permisit." Contrast with this the principle 
 of admission to local senates recognised by the lex Julia Munic. 1. 85 "nei quis 
 eorum quem . . . legito neve sublegito . . . nisi in demortuei damnateive locum." 
 
 ^ Lex Julia Munic. I. 135 "il vir(atum) mi Tir(atum) aliamve quam potes- 
 tatem, ex quo honore in eum ordinem perveniat." 
 
 ' Paulus in Dig. 50, 2, 7, 2 "Is, qui non sit decurio, dnumviiatu vel aliis 
 honoribns fungi non potest, quia decurionum honoribus plebeii fungi prohibentur." 
 
XI THE PROVINCES UNDER THE PRINCIPATE 439 
 
 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 adminis- 
 tration, but every category of citizens has its munera congruentia} 
 The legal writers divide the burdens of public life into two 
 categories. The mwn&ra personalia are those that demand the 
 activity of the person ; the munera patrimonii those that are 
 incumbent on wealth.^ 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 representa- 
 tion 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.^ The cost of the imperial 
 transport and post had also become a municipal burden.* 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. 
 
 1 Dig. 50, 2, 1. 
 
 ^ ib. 50, 4, 1, 3 "Illud tenendum est generaliter personale qnidem munus 
 esse, quod corporibus labore oum soUicitudiue animi ao vigilantia soUemniter 
 extitit, patrimonii vero, in quo snmptus maxime postulatur." But the two ideas 
 •were often inseparable. Hence the recognition of mixta munera by Aroadius 
 (50, 4, 18). For a complete enumeration of munera see Kuhn Verfassung i. pp. 
 35 ff. 
 
 3 Dig. 50, 4, 1, 2 ; 50, 4, 18, 8, 16 and 26. * ib. 60, 4, 1, 1. 
 
440 EOMAN PUBLIC LIFE 
 
 § 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 i 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 imimen or genius, the 
 abstract duplicate of man, the ever-present guardian -angel to 
 whom, as realised in the self, the Eoman 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 eflfort 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.^ The idealism 
 which to-day makes of a king something more than a man, had, 
 
 * That coercion was soraetimea employed is shown by Tacitus Ann. iv. 36 
 " objects publico Oyzicenis inouria caerimoniarum dlvi Augusti, additis violentiae 
 criminibus adversum oives Bomanos. Et amisere libertatem." 
 
 ^ Cf. Plin. Pameg. 80 " velocissimi sideris more omnia invisere, omnia andire, 
 et undeoumque invocatum statim, velut nnmen, adesse et adsistere. Talia esse 
 crediderim quae ipse mundi parens temperat nutu . . . tantum caelo vacat, post- 
 qnam te dedit, qui erga omne bominum genus vice sua fungereris." Boissier 
 
xf THE WORSHIP OP THE EMPEEOR 441 
 
 in a less fastidious religious environment, made of the Eoman 
 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 under- 
 current 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 Eoman world, and might be 
 regarded as a martyr in its cause, and Octavian permitted the 
 consecration of a temple to divus Julius,^ 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 cwria.^ But in the year 
 20 B.C. a temple dedicated to him under the name of Augustus 
 rose at Panium in Palestine,^ and in the next year the form of 
 dedication to " Roma and Augustus," which associated his nwnen 
 with that of the city, and whose modesty secured his consent,* 
 began to spread through the provinces. A temple with this rite 
 sprang up at Pergamum,^ and in 1 2 B.C. a similar worship, which 
 replaced that of the native sun-god Lug, was established for the 
 Gallic nobles at Lugdunum.* An attempt was also made to 
 consolidate the infant organisation of the new province of 
 Germany by establishing an altar at the Oppidum Ubiorum 
 (Koln) as the centre of its religious life.^ Eome 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 life-time. His 
 genius was associated with the household gods or Lares in the 
 worship of the vici of the capital.^ The movement spread 
 through Italy. The old magistri vicwum become the magistri 
 Larvm, and soon gain the title magistri Augustales. They are 
 
 (La Religion, Romainei. pp.206, 207) quotes a very simUar passage from Bossuet, 
 which concludes " qu'il faut obeir aux princes oomme k la justice mSme ; ils sont 
 des dieux et participent en quelque faQon a I'ind^pendance divine." 
 
 1 Dio Cass. li. 22. " ib. liv. 25. 
 
 ' Joseph. Antic[. xv. 10, 3. 
 
 • Suet. Aug. 52 " templa, quamvis soiret etiam prooonsulibus decerni solere, 
 in nulla tamen provinoia nisi communi sue Eomaeque nomine recepit." 
 
 ' Eckhel Doctrina Nwmorwm ii. 466. 
 
 « Dio Cass. liv. 32 ; Rhys Eiblert Lectures pp. 409, 421, 424. 
 
 ' Tac. Ann. i. 57. 
 
 8 Bgger Examen critique des historiens du regne d'Auguste App. ii. pp. 360- 
 375. 
 
442 EOMAN PUBLIC LIFE oh&p. 
 
 found in every part of Italy, and beyond it in Sardinia, Nar- 
 bonensis, Spain, Dacia, and even Egypt.i On the death of the 
 first Princeps his complete deification was accorded by the 
 Senate,^ and the recognition was followed by the permission to 
 erect temples in the provinces,^ while private as well as public 
 initiative fostered the cult of divus August'us. 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.* Although 
 the merits of Claudius as a divinity might be questioned, and 
 Vespasian, with sceptical tolerance, regarded his own deifica- 
 tion as an inevitable consequence of his position,^ 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.® 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 Eome, consisting of twenty- one nobles, and containing in 
 addition members of the imperial house.' 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 delibera- 
 tions of the local Senate. His wife, the Flaminica, was clothed 
 on festal days in white or purple, and, like the Flaminica Dialis 
 at Eome, might not be compelled to take an oath.* The lower 
 and middle classes were not forgotten in the distribution of these 
 religious honours. From the magistri Augustales, whom we have 
 
 ' Mourlot Histowe de I'Augustalitl dans V Empire JRomain pp. 29-33. 
 
 " Tac. Ann. i. 73. 
 
 " Thus in 15 A.D. a temple was erected at Tarraco (Tae. Ann. i. 78). 
 
 " p. 363. 
 
 » Suet. Vesp. 23 "Prima quoque morbi accessione, 'Vae,' inquit, 'puto, 
 Deus flo.' " 
 
 ^ Vita Marci 18. ' Tac. Ann. i. 54. 
 
 ^ See the inscription of Nartonne in Rushforth Latin HistoricaZ 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 toivus. See Marquardt Staatsverw, 
 i. p. 174. 
 
XI THE WORSHIP OF THE EMPEEOR 443 
 
 already mentioned, developed an ordo Augustalmm, 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 praetezfa, the fasces, the tribunal — which they displayed in 
 the performance of their official duties, and they have been com- 
 pared to magistrates without secular magisterial functions.^ The 
 form which the organisation assumed was the appointment of 
 sexviri or semri, probably by the senate of the municipal town ; 
 after the year of service they pass into the order of Augustales.^ 
 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, commimia, Koivd) made their appearance both in the 
 Eastern and Western world. Asia had already dedicated temples 
 to kings, proconsuls, and to the city of Rome ; * and in the 
 Hellenic world the national assemblies which survived the Eoman 
 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. 
 
 ' Mommsen Staatsr, iii. p. 455. 
 
 ^ 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 semri et 
 Augustales, where the ex-sevir retains his title. In southern Italy Augustalis is 
 used for smir. See Mourlot op. cit. pp. 69-72 ; Rushforth op. at. p. 64. 
 
 ' for a " templuni et monumentum " in honour of the governor see Cio. ad Q. 
 fr. 1, 1, 9, 26. A temple to Eoma was erected by Smyrna as early as 195 B.C. 
 (Tao. Ann. iv. S6). 
 
444 ROMAN PUBLIC LIFE chai-. xi 
 
 Eventually every province of the Empire seems to have evolved 
 a diet of some kind, and even Britain, the least organised of 
 Eoman dependencies, possessed at Colchester a temple to, the 
 deified Claudius.^ The high-priests of the cult {sacerdotes 
 provinciae, apxi^epeh) were chosen annually from the most dis- 
 tinguished families, and delegates (legati, a-vveSpoi.) from the 
 various districts or states, which made up the province, were 
 despatched to the yearly meetings (concilia, koivo). 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 ; tbey 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,^ and even to utter complaints about the conduct of 
 Roman officials.* 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,* and survived like 
 ghosts of the pagan past to haunt for a time the life of a new 
 oecumenical church which, through a fuller faith and a higher 
 allegiance, had effected its triumph over the old. 
 
 1 Tac. Arm. xiv. 31 "templum divo Clautlio constitutum quasi arx aetemae 
 dominationis aspioiebatur." 
 
 ^ Imperial rescripts to concilia or Koivi are frequent. See Dig. 47, 14, 1 ; 49, 
 1, 1 ; 48, 6, 5, 1. Cf. 1, 16, 4, 5. 
 
 ' Plin. Ep. iii. 4, 2. Where, as in this passage, the legati of "• province are 
 represented as making a complaint, they doubtless represent the concUiwm. In 
 A.D. 62 a senatus consultvm was passed " ne qnis ad concilium soolorum referret 
 agendas apud senatum pro praetoribus prove consullbus grates" (Tac. Ann. 
 XV. 22). 
 
 " Cod. 5, 27, 1 (a.d. 3361. 
 
APPENDIX 1 
 
 THE TWO ASSEMBLIES OF THE TRIBES 
 
 The existence of a comitia tributa popuU, as distinct from the con- 
 cilmm plebis tributim, was first demonstrated by MonmiBen (BSmische 
 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 dis- 
 tinction 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 suflfragio 
 sine patribus jussit, plebeio magistratu rogante." 
 
 ib. p. 330 " Scitum populi (est, quod eum magistra)tns patricius 
 (rogavit populusque snis 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(mumo 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. 
 
 (6) The quaestors were first elected by the people in 447 B.C. (Tac. 
 Ann. XL 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 
 
446 ROMAN PUBLIC LIFE 
 
 attributed to tlie year 357 b.c. (Liv. vii. 16 (consul) "legem nova 
 exemplo ad Sutrium in castris tributim de vicensima eorum, qui 
 manu mitterentur, tulit"). 
 
 The comitia trihuta populi was probably created between 47 1 B.C., 
 tbe 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, ag. by 
 the consuls Manlius (Liv. vii. 16) and T. Quinctius Crispinus (Frontinns 
 de Aquaed. 129), by the dictator Caesar (Cic. ad Fam. vii. 30), and by 
 P. Clodius as cumle aedile (Oic pro Seat. 44, 95 ; ad Q. fv. 2, 3) ; 
 
 (5) which elects magistrates of the people, e.g. the quaestors (Oic. 
 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 rennntiaverunt ") ; 
 
 (c) which legislates. This legislative power is shown by the lex 
 Quinctia de aquaeductiius of 9 B.C. (Frontinus de Aquaed. 129) ; 
 
 (d) and exercises judicial power. This judicial power is shown 
 in the trial of Milo for ms in 56 B.C. (Cic. pro Sest. 44, 95 ; ad 
 Q. jr. 2, 3). The prosecutor was a curule aedile, and the trial took 
 place in the Forum (" ejectus de rostris Clodius," Lc. § 2). 
 
 Perhaps the most striking demonstration of the existence of this 
 assembly is contained in the prescription to the Im Quinctia de aquae- 
 ductiius (Frontinus Lc), 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: £ 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 trihuta populi. 
 
 Although the formal difference between this assembly and the 
 concilium plehis 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 ofiices ; 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 bcfund to keep 
 away. 
 
APPENDIX II 
 
 A LIMITATION OF THE TRIBUNATE IN THE REIGN OF NERO' 
 
 Tacitus in tte 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 
 "prohibit! 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 prae- 
 ripere " and " vocare ex Italia," and it seems that this mi.]|t 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 wiU 
 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 &ct 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 Eoman 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 (ffiom. Bechts- 
 
418 ROMAN PUBLIC LIFE 
 
 i. p. 530) suggests that the tribunes had themselves issued 
 summonses to accused persons in criminal trials which were to take 
 place before the Senate — the initiation of such trials belonging properly- 
 only to the consuls and praetors. This apparently means that the 
 prosecutor approached the tribunes as presidents of the Senate, instead 
 of, as was usual, the consuls (Tac. Ann. ii. 28, " adit consules ") and 
 perhaps the praetors, and that the tribunes issued the citation follow- 
 ing the nominis delatio and preceding the cognisance of the Senate. 
 But, besides the difficulty of taking lege agere in the unusual sense of 
 the fulfilment of a penal law, this interpretation gives no explanation 
 of the phrase "vocare ex Italia," for the criminal jurisdiction of the 
 Senate extended to the provinces, and " ex Italia " does not even seem 
 to include Rome itself. 
 
 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 Eome and 
 Italy " ; but I venture to think that ex Italia excludes the idea of 
 Eome, and that the meaning of the words is "to summon from a 
 municipal town of Italy to Eome." On what grounds such a summons 
 might be, mac^ is shown by tlie words " cum quibus lege agi posset" 
 The sphere of the summons is civil jurisdiction in the municipia as 
 divided between the Soman 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 Bubria. 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 juris- 
 diction was during the later EepubUc 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) — 
 
 Bfira tamen merces quae cognitione tribuni 
 
 Non egeat — 
 
 words which almost certainly mean "it is seldom that such tnereei 
 does not lead to a court of appeal." 
 
APPENDIX II 449 
 
 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 Qaius (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 
 stiU 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 pre- 
 vailing 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 Bubria (c xx.) forbids the inter- 
 cession only in the case where the local court is admittedly competent. 
 This colleague pronounces the veto, the judiciv/m is quashed ; all that 
 the local magistrate can now do is to compel the parties to enter into 
 a vadmmnimn 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 aU, the praetor is bound to take it. 
 
 We can also imagine a case with the same preliminaries in which 
 Numerius appeals to the coUeague 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. 
 
 2 G 
 
450 ROMAN PUBLIC LIFE 
 
 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 diffi- 
 culties discovered by commentators in this passage is removed ; it is 
 simply an illustration of the positive efifects of a negative power. 
 Just as the tribune can by a persistent veto force the praetor to alter 
 his formula (Cic. Acad. Prior. iL 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 Eome 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 Bomam revocatio, which was exercised and abused by 
 magistrates towards the close of the EepubUc. The Fragmentnm 
 Atestinum (perhaps a part of the lex Bubria) enacts (L 16 sq.) with 
 reference to municipal jurisdiction — " ejus rei ■peqxa][iaeve] quo magis 
 privato Eomae revocatio sit . . . ex hac lege rdhilwm rogatur," ie. 
 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 eonsiiVwm 
 praeripere of our passage may refer to tribunician interference with 
 this consiJar 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 (Le. in a belief current during the 
 Principate) the tribunes had something to do with summoning cases 
 to Borne. 
 
 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 during 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. QuintUian shows that in greater 
 matters it stiU belonged to the former (Inst. Or. iii. 6, VO "non 
 debes apud praetorem petere fldeicommissum sed apud consules, major 
 enim praetoria oognitione summa est "). If the consuls tried the case 
 when the fldeieommismm, was very large and the praetors when it was 
 smaller, it is not altogether impossible that the municipal magistrates 
 
APPENDIX II 451 
 
 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 
 procedura 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 enforce- 
 ment of the tribunician multa is subjected to the decision of the 
 consul. Similarly, with reference to the power which we have dis- 
 cussed, 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. 
 
INDEX OF SUBJECTS' 
 
 (T/ie rf/ereiuxa are to tile pages) 
 
 Administrative functions, of people, 
 
 243 ; of magistrates, 153 ; of Senate 
 
 and Prinoeps, 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 Bome, origin, 299 ; status, 
 
 305 foil. ; federated, 311 
 Amalgamation of races, 3 
 Amnesty, a prerogative of the Senate, 
 
 249 
 Anti-senatorial party, 331 foil. 
 Appeal, 106, 109, 410 ; from the 
 
 King, 64 ; from the consul, 79, 167 ; 
 
 from the dictator, 194 ; against 
 
 fines, 170 ; not applicable to tri- 
 
 bunician coercion, 168 ; nor after 
 
 decretum ultimum, 279 foil. ; 
 
 courts of appeal under Principate, 
 
 382, 390, 412 
 Army, 41, 68 foil., 154 ; auxiliaries, 
 
 307 ; controls appointment of 
 
 Princeps, 359 
 Augurs, 37, 1^3 
 Augury, see Auspices 
 Auspices, 86-40, 162-167, 172, 196, 
 
 257 
 Autonomy of Eoman subject states, 
 
 325 ; inconsistent with imperium, 
 
 829 ; its dangers, 324 
 
 Ballot, 258 
 Banausia, 185, 400 
 
 Caosar, 141, 142, 198, 201, 235, 248, 
 
 249, 314, 315 ; nature of his dic- 
 tatorships, 336 foil. ; his other 
 powers, 337 ; a title of the Prin- 
 oeps, 363, 354 
 
 Caesar-worship, 440 
 
 Capital punishment within the walls, 
 see Appeal ; without the walls, 
 see Jurisdiction, military ; Sem- 
 pronian law, 281 
 
 Caput, 81, 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 foil. ; how conferred, 133, 
 134, 240, 300, 303, 304 ; complete 
 or partial, 300 foil. ; exclusiveness 
 of Roman, 301 
 
 City, growth of, 2, 3 
 
 Clan, 1, 9-17 
 
 Claudian gens, 1, 6, 14, 16 
 
 Clientship, 5, 7, 8, 45 
 
 Codification, 102 
 
 Coercion, a magisterial prerogative, 
 167-171 ; of tribunes, 95, 98 ; rela- 
 tion to jurisdiction, 167 ; how 
 affected by the ultimum decretum, 
 279 
 
 CoUeagueship, 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, 
 
 1 References to subjects will also be found in the Index of Latin words. 
 
454 
 
 KOMAN PUBLIC LIFE 
 
 238-260 ; in Principate, 371 foil. ; 
 
 munioipal, 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 
 
 quaestorsMp, 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 foil. 
 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 foil. 
 Dispensation from laws, 276 
 Divine right, 45, 77 
 Domitian law, 255 
 
 Economic condition of Italy, 90 
 foU., 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 magis- 
 trates, 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 foil. ; the Budget, 231, 
 287, 429 ; finance in allied cities, 
 307, 424 ; in provinces, 417, 429 ; 
 the flscus, 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 Princi- 
 pate, 414 
 
 Germany, administration of, 435 
 Gracchus, Gains, 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 foil. 
 Interregnum, 47, 48, 83, 147 
 Italy, organisation of, 285, 422 foil. ; 
 
 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 cognis- 
 ance of praetor, 382 ; and of Prin- 
 ceps, 382, 419 ; by procurators, 416 ; 
 by consuls and Senate, 385 ; tri- 
 
INDEX OF SUBJECTS 
 
 buna's intercession, 178, 371, 383, 
 384, and Appendix 
 
 Jurisdiction, criminal, 62, 167 ; exer- 
 cised by king, 62 ; by duumviri, 63, 
 161 ; consuls, 86, 199 ; aediles, 211, 
 369 ; people, 86, 88, 372 ; quaestors, 
 63, 80, 211 foil. ; 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 
 
 tbe 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 aedUes, 246 ; pro- 
 cedure in judicia popali, 246 
 
 domestic, 2 
 
 international, 294 foil. 
 
 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 foil. ; status of 
 Latins, 308 
 
 Law, religious, 23, 51-67 ; judge - 
 made, 206 ; form of a, 242 ; influence 
 of Eoman law on the Empire, 437 
 
 Legates, 434 foil. 
 
 Legislation, procedure in, 256 foil. 
 
 Legislative powers, of Popnlus, 5, 42, 
 239, 377 ; limited by magisterial 
 initiative, 43, 88 ; by veto, 86, 
 179 ; by encroachments of Princeps 
 and Senate, 372, 377 foil. 
 
 of Plebs, 96-97, 109, 124, 126 
 
 Licinio-Sextian laws, 120, 130, 216 
 
 Lot, 47, 124, 148, 191, 198, 200, 204, 
 213, 285, 433 
 
 455 
 
 _istraoy, 84, 150, 152-191, 363 
 foil.; qualifications, 183 ; candida- 
 ture, 187 foil. ; minor magistracies, 
 234 foil., 364 
 
 Manumission, 133, 134 
 
 Marius, 134, 240, 249 
 
 Marriage, 17, 39, 111, 136 ; inter- 
 marriage 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 foil. ; in the pro- 
 vinces, 437 
 
 Nobility, in later Republic, 129, 265 ; 
 
 in Prinoipate, 398 foil. 
 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 Re- 
 public, 86, 87 ; alliance with 
 plebeian aristocracy, 129 foil. ; 
 created by Princeps, 347, 399 ; 
 special powers of patrician sena- 
 tors, 265, 273, 275 
 
 Plebeians, origin of, 5, 6 ; generally 
 excluded from clans, 10, 11 ; mem- 
 bers of Populus, 66 ; gradual rise 
 to power, 92 foil.. Ill, 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 tri- 
 bunes, 108 ; in Prinoipate, 350, 
 351, 397 
 
 Pontifical college, in monarchy, 50 
 foil. ; 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 Prinoipate, 364, 368 ; see 
 Edict 
 
 Priestly orders, 442 
 
 Primogeniture, 22, 130 
 
 Prisoners of war, 141 
 
456 
 
 EOMAN PUBLIC LIFE 
 
 Procurators, 414 
 
 Prohibition, magisterial right of, 
 119, 173-176 
 
 Property, tenure of, 5, 8, 35 ; Servian 
 classification, 69 foil.; registration 
 by censor, 221-223 ; tenure by 
 foreigners, 295 
 
 Provinces, 317 foil., 426 foU. ; juris- 
 diction, 155, 325 ; revenues, 231, 
 286, 417, 429 foil. ; formation, 284, 
 285 ; arrangements of Sulla, 201, 
 251, 322 ; of Gracchus, 180, 201, 
 322 ; of Pompeius, 323 ; of the 
 Prinoipate, 345, 401, 428 
 
 Public works, 209, 232, 413 
 
 PubliUan 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 ; func- 
 tions, 212, 216 ; no vocatio or 
 prensio, 181 ; appointment, 81, 
 102 ; qualifications, 184, 364, 373 ; 
 under Principate, 369 
 
 Eamnes, 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 foil., 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 foil. ; to consuls and 
 other magistrates, 81 foil., 264, 267; 
 to Princeps, 348, 359, 362, 376 ; 
 powers, 59 foil., 83, 273, 276, 282 
 foil., 395, 397 ; control of legisla- 
 tion and elections, 125, 254, 273 
 foil., 377 ; procedure, 268 foil., 
 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 foil. , 138, 145 
 Servius TuUius, 58, 62, 138 
 Slavery, 24 foil., 105, 141 foil. ; 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 foil., 106, 135, 136, 
 144, 251, 295 
 
 Titles, 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 foil. ; Republican, 101, 
 223, 252 
 
 Tribunate, consular, 112-114 ; mili- 
 tary, 364, 373 ; of the Plebs, 93 
 foil., 108, 365 ; inviolability, 99, 
 345 ; power of prohibition, 119, 
 176 ; intercession, 178 foil., 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 foU., 430 
 
 Triumph, 156-158 
 
 Triumvirate (43 B.C.), 338 
 
 Twelve Tables, 7, 16, 19, 26, 29, 87, 
 91, 92, 102, 104 foU., Ill, 126, 
 161, 205, 241, 281 
 
 Valerio-Horatian laws, 108 foU., 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 WOEDS 
 
 (The references are to (Ke pages) 
 
 Abductio in caroerem, 168 ; in vin- 
 
 oula, 168 
 Abolitio, 392 
 Abolitiones publicae, 391 
 Absolve, 205 
 Aooensi, 72, 73, 190, 253 
 Acpusationes, 247 
 Acta, 363, 366, 374, 379, 381 
 Actio, de in rem verso, 143 ; de peoulio, 
 
 143 ; quod jussu, 143 ; tributoria, 
 
 143 
 Actionem dare, 206 
 Actor publious, 144 
 Addictio, 128 
 Addictus, 91 
 
 Adlectio, 365, 373, 374, 399, 438 
 Adlectus, 82, 365 
 Adoptio, 17 
 Adrogatio, 17 
 Adrogatus, 32 
 Adsoriptioii, 72 
 Adsertor in libertatem, 134 
 Aedi dedicandae, 237 
 Aediles, 98 ; cereales, 411 ; eurules, 
 
 122 
 Aedilicii, 265 
 
 Aedium saorarum proouratio, 209 
 Aerarii, 73, 224, 228 
 Aerarium, 81, 155, 173, 194, 209, 213, 
 
 214, 231, 256, 259, 368, 369, 394, 
 
 395, 398, 413 ; militare, 396 
 Acs, 73 ; equestre, hordearium, 74, 
 
 137 ; aes et libram (per), 28, 90, 
 
 106 
 Ager, assignatua, 89 ; Campanus, 
 
 229 ; oooupatorius, 230 ; privatus, 
 
 15 ; publious, 15, 67, 69, 90, 304, 
 
 320 ; quaestorius, 89, 214 ; Komanus, 
 
 68, 101, 192 
 
 Agere cum patribus, 161 ; cum plebe, 
 
 96, 161 ; cum populo, 158, 160, 161, 
 
 246 
 Aguati, 10, 106 
 
 Agris dandis assignandis, 234, 237 
 Album senatorium, 374 
 Alieni juris, 33 
 Alimentarium, 425 
 Alter ego, 61, 409 
 Ambitio, 187 
 Ambitus, 118, 181 
 Amioi, 292, 357 
 Amicitia, 292 
 Anquisitio, 246, 248 
 Antique, 258 
 
 Appellatio, 177, 346, 382, 384 
 Applioatio, 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 ; sextaatariua, 
 
 69 
 Assidui, 73 
 Asylum, 53 
 Atrium, 129 
 
 Auctoritas, 46 48, 125, 180, 272 
 Augures, 163 
 Augustales, 443 
 Auspex, 39 
 Auspicatio, 136, 257 
 Auspicate, 113 
 Auspicia, 36, 37, 38, 39, 50, 99, 136," 
 
 147, 148, 157, 162, 163, 217, 233 ; 
 
 caduca, 163 ; coelestia, 164 ; ex 
 
158 
 
 EOMAN PUBLIC LIFE 
 
 tripadiis, 164 ; majora, minora, 
 
 147, 165 ; maxima, 165 ; privata, 
 
 39 ; publioa, 39, 166 
 Auxilium, 92, 94, 96, 178, 194, 346, 
 
 370, 383 
 Aves internuntii Jovis, 164 
 Avooare contionem, 172 
 
 Beneficia, 380 
 
 Bona cadaca, 417 ; damnatorimi, 395, 
 
 417 ; fides, 227 ; vacantia, 395 
 Boni, 333 
 
 Cadnoa, 163, 417 
 
 Caesar dixit, 379 
 
 Calceus muUeus, 265 
 
 Galles, 215 
 
 Galumnia, 228 
 
 Candidatus, 187 ; Caesaris, 349 
 
 Capite censi, 73, 184, 221 
 
 Capitis deminutio, 32, 33, 138, 139, 
 
 140 
 Captus, S3 
 Caput, 31, 32, 33, 73, 86, 138, 139, 
 
 281 
 Carmen, 57 
 Castellum, 1 
 Casus belli, 306 
 Celeres, 41, 42 
 Censibus equitum Eomanorum (a), 
 
 403 
 Censitor, 430 
 
 Censor, 115, 355, 430 ; jjerpetuus, 347 
 Censoria potestas, 217 
 Census, 4, 75, 135, 217, 218, 219, 220, 
 
 221, 223, 229, 263, 374 
 Census aooipiendos (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, 35, 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 
 suETragio, 304 
 
 Civium capita, 133 
 
 Clarissimus, 400, 411 
 
 Classici, 73 
 
 Classis, 69, 70, 72, 74, 75, 137 
 
 Clavi fingendi causa, 193 
 
 Clarus annalis, 193 
 
 Clientela, 5, 45 
 
 CUentes, 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 cogni- 
 tionibus, 419 
 
 Cognomen, 353, 354 
 
 Cobortes urbanae, 408 
 
 Collega, 360 ; major, 193 
 
 Collegia, 4, 71, 107, 114, 178, 235, 
 255, 282 
 
 Colonia, 315, 429 ; civium Eoman- 
 orum, 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 
 
 Commeroium, 22, 33, 35, 295, 296, 
 304, 308, 310 
 
 Communia, 443 
 
 Commutatio, 32 
 
 Comparatio, 191, 198 
 
 Conceptivae, 255 
 
INDEX OF LATIN WORDS 
 
 459 
 
 Concilia, 93, 299, 315, 443, 444 
 
 Concilium plebis, 93, 94, 96, 97, 98, 
 100, 102, 108, 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 
 
 Congrnentia, 439 
 
 Conjurationes, 279 
 
 Consaepta, 268 
 
 Conscripti, 82, 83, 315 
 
 Oonsecratio 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, 68, 61 
 
 Censors imperii, 353, 360 
 
 Consortes, 26 
 
 Constitutiones principum, 380, 421 
 
 Consul, 79, 355 ; major, 198 
 
 Consulare imperium, 94, 152 
 
 Consulares, 265, 269, 271, 865, 384, 
 423, 433, 485 
 
 Consularis potestas, 162 
 
 Consultatio, 380, 419 
 
 Consultum, 272 
 
 Contio, 168, 159, 191, 218, 246, 247, 
 255, 256, 257, 361 ; contionem dare, 
 160 
 
 Contra rem publicam, 277 
 
 Conubium, 33, 36, 39, 133, 296, 296, 
 304, 308 
 
 Conventio in manum, 32 
 
 Conventus, 327, 328 
 
 Comicines, 71, 253 
 
 Corpus Eomani juris, 106 
 
 Correctores, 424, 425, 428 
 
 Creatio, 78, 148 
 
 Cnltus, 51, 68, 64, 209 
 
 Cura, 412, 418 ; alvei et riparum 
 Tiberis, 413 ; annonae, 210, 368, 
 411 ; aquarum, 413 ; legum et mor- 
 um, 347 ; morum, 219, 347; operum 
 publicorum, 413 ; viarum, 413 
 
 Curatio, 401 
 
 Curatores, 411, 413, 428 ; alimentor- 
 um, 426 ; alvei et riparum Tiberis, 
 401 ; annonae, 237 j aquarum, 401, 
 413 ; operum publicorum, 401, 413 ; 
 rei publioae, 424 ; tribuum, 221 ; 
 viarum, 237, 401, 413 
 
 Curia, 6, 15, 40, 41, 42, 43, 49, 59, 
 75, 88, 93, 97, 101, 102, 196, 222, 
 251, 256, 269, 816, 399, 438, 441 
 
 Curiales, 41, 42, 88, 438, 439 
 
 Curiatim, 89, 98 
 
 Curio, 42 
 
 Cursus honorum, 213, 364, 371 
 
 Curules, 270 
 
 Custodes, 269 ■ 
 
 Custos urbis, 407 
 
 Damnatio memoriae, 368 
 
 Damno, 258 
 
 Datio in mancipium, 32 
 
 Decemviri, 100, 108, 288 ; sacris 
 
 faciundis, 119, 123; stlitibus judi- 
 
 candis, 236 
 Decretum, 379 
 Deouma, 231, 320, 321, 431 
 Decumani, 431, 432 
 Decuriae, 47 
 Decuriati, 282 
 Decurio, 315, 438 
 Dediticia oivitas, 306 
 Deditio, 306 
 Deditus, 139 
 
 Deminutio capitis, 32, 33, 138 
 Designatus, 189 
 Detestatio sacrorum, 251 
 Devotio, 57 
 Dioere 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 ; ne- 
 
 fasti, 266 
 Dilectus, 164, 800 
 Dirae, 163, 172 
 Diribitio, 259 
 Diribitores, 269 
 Discessio, 271 
 Disciplina, 38 
 
 Dispensator sumraaium, 416 
 Ditio, 306 
 Divisores, 188, 282 
 Divus, 441, 442 
 Domi, 79, 153, 166, 197 
 Dominica potestas, 18, 26 
 Dominium, 24, 26, 144, 352 
 Dominus, 25, 26, 142, 143, 144, 352, 
 
 414 
 Domus Caesaris, 356 
 Ducenariua, 418 
 
i60 
 
 ROMAN PUBLIC LIFE 
 
 Diicijubere, 314 
 
 Duo Augusti, 353 
 
 Duumviri juri dioundo, 313 ; navales, 
 236 ; perduellionis, 63, 80, 161, 
 246, 247 ; sacris faoiundis, 119 ; 
 viis purgandis, 235 
 
 Edictum, 177, 378 ; provinoiale, 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; 
 
 Eomani equo publico, 74, 184, 402, 
 
 404 
 Equitum census, 225 
 Evooatio, 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 ; 
 
 Bomana, 127 ; fidei commissa, 367, 
 
 382, 385 ; fidei commissarii, 368 
 Filia familias, 32 
 Filius familias, 30, 31 
 Fisoalis, 368 
 Fiscus, 368, 370, 395, 418, 417 ; 
 
 oastrensis, 417 
 Flamen Augustalis, 442 ; curialis, 
 
 42 ; Dialis, 189 
 Flamines, 51, 52, 131, 251, 443 
 Flaminica Augustalis, 442 ; Dialis, 
 
 442 
 Floialia, 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 
 Forura agere, 327 
 Frumentum aestimatum, 321 ; 
 
 emptum, 321 ; in ceUam, 321 
 Furiosus, 22 
 Furtum, 181 
 
 Genius, 355, 440, 441 
 
 Gens, 1, 6, 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 
 
 lUustris, 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 
 
INDEX OF LATIN WORDS 
 
 461 
 
 Infames, 185 
 
 Infamia, 221 
 
 Infra classem, 70 
 
 Ingenui, 5, 135, 136 
 
 Ingenuitas, 135, 136, 140, 345, 374, 
 
 402 
 Injudicio, 204 
 Injure, 178, 204, 383 
 Injuria, 181 
 Insignia, 4, 43, 44, 45, 99, 113, 233, 
 
 265, 342, 355, 366, 402, 443 
 Interoeasio, 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 
 luterrex, 46, 47, 48, 108, 265, 273 
 Italioi, 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;,privatns, 64 
 
 Judicium, 64, 281, 382 ; dare, 206 ; 
 legitimum, 302 ; ordinarium, 382, 
 383; populi, 181, 214, 245, 246, 
 247 ; publioum, 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 sen- 
 atus, 161 ; conubii, 7, 298 ; di- 
 vinum, 350 ; edicendi, 153 ; exu- 
 landi, 6 ; gentium, 139, 141, 207, 
 294 ; gladii, 389 ; honorarium, 
 206 ; honorum petendorum, 183 ; 
 imaginum, 129 ; Italicum, 307, 
 429 ; liberorum, 433 ; multae dic- 
 
 tionis, 169 ; ordinarium, 424 ; 
 poenae, 95 ; postliminii, 140 ; 
 primae relationis, 342, 348 ; pri- 
 vatum, 64 ; publioum, 23, 62 ; 
 referondi ad senatum, 161 ; ro- 
 gandi, 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 
 
 Latiolavii, 265, 399 
 
 Latinitas, 297, 308 
 
 Latrocinia, 154 
 
 Latus olavus, 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 ; frumentariac, 
 210, 335 ; regiae, 58 ; repetun- 
 darum, 329 ; Valeriae Horatiae, 108 
 
 Legibus solutus, 350 
 
 Legio, 41, 112, 138 
 
 Legis actio, 35, 67, 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 
 (Mameroi), 115 ; Aemilia (Soauri), 
 145 ; Aemilia (provinciae Mace- 
 doniae), 318; annua, 206;- Ap- 
 puleia, 240 ; Aternia Tarpeia, 169 ; 
 Baebia, 202 ; Caecilia Didia, 239, 
 277 ; Caelia, 258 ; Calpurnia de 
 ambitu, 228 ; Cassia (104 B.C.), 
 228 ; Cassia (137 B.o. tabellaria), 
 258 ; oeusoria, 230 ; oensui con- 
 sendo, 221 ; centuriata, 75, 93, 217, 
 241 ; Cornelia de provinciis ordin- 
 andis, 201, 251 ; Cornelia de vene- 
 ficis, 388 ; Cornelia Gellia, 134 ; 
 Cornelia (67 B.O.), 206 ; ouriata, 
 
162 
 
 ROMAN PUBLIC LIFE 
 
 48, 49, 75, 89, 179, 192, 195, 199, 
 203, 216, 251 ; data, 246, 285, 306, 
 317, 380 ; de ambitu (5th century), 
 181 ; de imperio, 343 ; dicta, 230 ; 
 Domitia, 124 ; duodecim tabu- 
 larum, 104 ; Fannia, 308 ; Fufia, 
 173 ; Gabinia, 258 ; Hieronica, 231, 
 321; Hortensia, 126, 132, 162; 
 imperfecta, 242 ; Julia (90 B.C.), 
 311 ; Julia (mniiicipalis), 316 ; 
 Julia Papiria, 169 ; Maenia, 126 ; 
 Marcia, 127 ; Menenia Sextia, 169 ; 
 Minieia, 133 ; minus quam per- 
 fecta, 242; Ogulnia, 61, 123; 
 Ovinia, 219 ; Papiria, 258 ; per- 
 feota, 242 ; Plautia Papiria, 311 ; 
 Poetilia, 127 ; Pompeia (de jure 
 magistratuum), 187 ; Pompeia 
 (provinoiae Bithyniae), 284, 318 ; 
 provinciae, 244, 284, 286, 318; 
 publica, 110 ; rogata, 245, 285 ; 
 Kubria, 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, 116, 229 
 
 Lustrum, 76, 218, 219, 221, 231 
 
 Magister ' equitum, 84, 196 ; Larum, 
 
 441 ; populi, 44, 78, 84 
 Magistratus populi, 147, 187, 245, 
 
 246 ; potestatesve, 316 
 Magistri Angustales, 441, 442 ; 
 
 vicorum, 441 
 Majestas, 100, 212 
 Major potestas, 173, 176, 176, 179, 
 
 268, 275, 383 
 Majores magistratus, 217 
 Majus imperium, 383, 38B 
 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 
 Mauus, 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 
 Monlani, 2 
 Montes, 2 
 
 Morbus comitiaHs, 163 
 Mos majorum, 22, 63 
 Mul^.a, 169, 170, 210, 211, 232, 371 ; 
 
 suprema, 169, 170, 210, 246 
 Munera, 45, 136, 138, 232, 303, 400, 
 
 404, 439 
 Munioeps, 303, 304, 315 
 Municipium, 241, 303, 304, 305, 308, 
 
 315, 345 
 Munitio, 137 
 
 Naturalis obligatio, 143 
 Navieularii, 412 
 Nefas, 278 
 Nexum, 90 
 
 Nexus, 24, 91, 92, 127 
 Nobiles, 130 
 
 Nobilissimus Caesar, 354 
 Nobilitas, 129 
 Nomenclator, 183 
 Nominare provincias, 200 
 Nominatio, 849 
 Notae, 220 
 Novi cives, 312 
 Novus homo, 130, 336, 362 
 Noxae deditio, 8, 19 
 Numen, 440, 441 
 Nuncupatio, 29 
 Nundina, 257 
 Nundinae, 91, 255 
 Nuntiatio, 163 
 
INDEX OF LATIN WOEDS 
 
 463 
 
 Obiter dicta, 378 
 
 Oblativa, 88, 162, 168, 166, 172, 173, 
 
 257 
 Obnuntiatio, 163, 172, 173, 174, 218 
 Obsequium, 144 
 Oooupatio, 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 ; saoerdotum, 51 
 Origo, 400 
 Ornamenta, 365 
 
 Paoata provincia, 157 
 
 Paelex, 55 
 
 Pagus, 1, 2, 5, 430 
 
 Pallium, 305 
 
 Paludamentum, 190, 355 
 
 Par potestas, 176, 179 
 
 Paret (non paret), 205 
 
 Parricidium, 218 
 
 Pasoua, 230 
 
 Passus mille, 235 
 
 Pastor, 230 
 
 Pater, 21, 26, 30; familiaa, 10,' 21, 
 
 23, 30, 45, 59, 115 ; patiatus, 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 
 Patrimojiium, 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 
 Peoulium, 8, 143, 144 
 Peounia, 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 
 
 Ferfectissimi, 405 
 
 Perpetua (ediota), 153, 206 
 
 Personalia (munera), 439 
 
 Piaoulum, 54, 87,- 106 
 
 Pignoris oapio, 170 
 
 Plebiaoita, 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, 361, 354 
 Pontifioes, 16 
 Populares, 332, 383 
 Populus, 1, 88, 34, 68, 109, 147, 
 
 802 
 Portitores, 321 
 Portoria, 230, 321, 432 
 Possessor, 229, 230, 233, 307 
 Postliminii (jus), 140 
 Potestas, 10, 17, 18, 25, 32, 38, 52, 
 
 113, 126, 140, 152, 166, 182, 189, 
 
 218, 251, 306 
 Praeoones, 190 
 Praefecturae, 302, 304, 815 ; annonae, 
 
 412 ; morum, 337 
 Praefeotus, 407, 426 ; Aegypti, 436 ; 
 
 aerarii militaris, 396 ; aerarii Sa- 
 
 turni, 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 
 Pfaevaricatio, 228 
 Preoario, 8, 45 
 Preces, 419 
 Prensio, 171, 181 
 Princeps, 123, 351 ; civitatis, 333 ; 
 
 juventutis, 366 ; senatus, 12, 269, 
 
 875 
 Privatus, 181, 232, 233 
 Privilegia, 107, 239 
 Probatio equitum, 404 
 Prooinctu, in, 27 
 Proconsul, 353, 355 
 
464 
 
 ROMAN PUBLIC LIFE 
 
 Proconsulare imperium, 335, 340, 341, 
 343, 353, 360, 361, 433 
 
 Proouratio omnium rerum, 414 ; ra- 
 tionis privatae, 418 
 
 Procurator Caesaris pro legato, 435 ; 
 castrensis, 417 ; fisci, 416 ; patri- 
 monii, 417 ; patrimonii privati, 
 417 ; rationis summae rei, 416 ; 
 rationum summarum, 416 ; sum- 
 marum, 416 . 
 
 Procuratores, 414, 417, 434 
 
 Prodere iuterregem, 148 
 
 Prodigus, 22 
 
 Producere in contionem, 160 
 
 Profeasio, 187 
 
 Profiteri, 187 
 
 Proletarii, 72, 73, 224, 253 
 
 Pronuntiatio, 259 
 
 Pro praetore, 433, 435 
 
 ProTincia, 178, 200, 202, 208, 213, 
 285, 316, 394, 401, 425 ; aquaria, 
 216 ; publioa, 427 
 
 ProTooatio, 42, 63, 64, 76, 86, 92, 95, 
 106, 108, 154, 156, 167, 170, 171, 
 194, 245, 247, 254, 328 
 
 Publioani, 183, 214, 229, 230, 231, 
 
 233, 320, 326, 432 
 Publioi fructus, 432 
 Pugio, 190 
 PuUarii, 164 
 Puncta, 258 
 
 Quadrata (Koma), 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 ; ali- 
 
 mentorum, 426 ; Augusti, 369 ; 
 
 candidati principis, 369, 370 ; 
 
 classici, 215 ; parrioidii, 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 
 
 Reeitatio, 259 
 
 Recognitio equitum, 224, 225 
 
 Recuperatores, 205, 207, 210, 233, 
 293 
 
 Referre, 348 
 
 Reges sooii, 318 
 
 Regimen morum, 116, 217, 219 
 
 Regina saororum, 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 
 
 Eepetere auspicia, 166 
 
 Res, 24 ; censui censendo, 69, 70 ; 
 judicata, 379 ; mancipi, 69, 137, 
 222 ; nee mancipi, 26 ; privata, 
 396, 417 
 
 Resoriptum, 379, 381 
 
 Restituere, 249 
 
 Restitutio in integrum, 140, 390, 391 
 
 Retraotatio, 392 
 
 Rex, 44, 47, 52, 76, 337, 338; sao- 
 rorum, 44, 47, 50, 51, 131, 251 
 
 Rogatio, 97, 109, 111, 125, 174, 177, 
 179, 180, 204, 238, 247, 248, 256, 
 257, 277 
 
 Rogator, 186, 258, 259 
 
 Romam revocatio, 385 
 
 Sacer, 38, 55, 99, 109, 154 
 
 Sacerdos, 443 ; provinciae, 444 
 
 Sacra, 16, 17, 42, 54, 55, 226 ; pri- 
 vata, 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 ; consultum 
 ultimum, 281 ; de provinciis ordi 
 
INDEX OF LATIN WORDS 
 
 466 
 
 nandis, 287 ; per disoessionem 
 
 faeere, 348 ; indiotus, 375 ; legiti- 
 
 mus, 375 
 Seniores, 70, 224, 252, 253 
 Sententia, 267, 270, 271 
 Septimontiuiu, 2 
 Servare de caelo, 172 
 Servi publici, 144, 190 
 Servitus, 11 
 Sestertius, 72 
 Seviri, 403, 443 
 
 Sex oenturiae, 74 ; suffragia, 74 
 Sexagenaiii, 223, 418 
 Sex-et-vigintiviratus, 364 
 Sextantarii, 69, 72 
 Signa ex avibus, 163 ; ex quadru- 
 
 pedibus, 164 
 Silentium, 163, 165 
 Silva, 230 
 
 Sooii, 299, 305, 307, 308, 311 
 Sodales Augustales, 442 
 Sodalicia, 107 
 Sodalltates, 188, 282 
 Solatium, 142 
 Soliti honores, 358 
 Solium, 44 
 Solum pubUcum, 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 
 Sublectib, 220 
 
 Subscriptio, 419 ; censoria, 221 
 Subsellia tribunorum, 178 
 Suffeotus, 188, 368 
 Suffiragium, 305 
 Suis legibus uti, 306 
 SuoTetaurilia, 229 
 Supplioatio, 288, 380 
 Susoeptio (liberi), 19 
 
 Tabellae, 258, 421 
 Tabernaoulum capere, 165 
 Tabulae, 104, 231 ; publicae, 214 ; 
 seniomm, 223 
 
 2 
 
 Tabularium, 432 
 
 Templum, 165, 257 
 
 Testamentum, 26, 135 
 
 Tibioines, 71, 253 
 
 Titulus, 129 
 
 Toga piota, 45, 129 ; praetexta, 129, 
 
 855 
 Togati, 305, 307 
 Trabea, 44 
 Traditio, 294 
 Traduo equum, 226 
 Tralaticium, 153, 206 
 Transitio ad plebeip, 7 
 Transveotio equitum, 403 
 Treceuarius, 418 
 Tribules, 68 
 Tribunal, 443 
 Tribuni celerum, 41, 196 ; latiolavii, 
 
 399 ; militum, 41 ; militum con- 
 
 sulari potestate, 112 
 Tribunioia 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 
 Tribntum, 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 dediicendae, 134 ; epu- 
 
 lones, 124 ; monetales, 235 ; noc- 
 
 turni, 235 
 Tumultus, 175 
 Turmae, 403 
 Tutela, 16, 21, 23, 32, 33, 227, 382, 
 
 407 
 Tutelaris, 368 
 
 Ultro tributa, 232, 233 
 
 Unciarium fecus, 106 
 
 Universus populus, 34 
 
 Urbana jurisdictio, 203 ; provincia, 
 
 203 
 Urbica dioecesis, 423 
 Usus, 17, 105, 140 
 Uti rogas, 258 
 
 Vades, 169 
 H 
 
466 
 
 ROMAlSr PUBLIC LIFE 
 
 Vadimonium, 169, 313, 315 
 Veotigal, 90, 230, 231, 320 
 Vectigales provinoiae, 321 
 Velati, 72, 73 
 Velites, 41 
 
 Velitis jubeatis, 43, 257 
 Vende equiun, 225 
 Verba faoere, 269 
 Vestis triumphalis, 355 
 Viatores, 171, 355 
 Vice principis, 410 
 Vioesima hereditatum, 396, 417, 422, 
 432 
 
 Vicus, 1, 2 
 Vigiles, 412 
 Vigintisexviri, 235, 304 
 Villous 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, 356 
 
INDEX OF AUTHOES CITED 
 
 I. Latin Authors 
 
 Aknobius 
 
 iii. 38 . 
 
 57 
 
 ASCONITJS 
 
 in Oornelianam 
 
 p. 58 179, 206, 207, 276 
 
 59 . . . 208 
 
 68 . . . 277 
 
 70 . 258 
 
 76 93, 94 
 
 78 . 228 
 
 80 . . 183 
 
 in, Milomanam 
 
 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 
 
 Sdhol. in Dimnationem 
 p. 103 . . . 73 
 
 Cabs A E 
 
 Bellum Gallicum 
 
 i. 33 . . . 293 
 
 ii. 36 
 iii. 16 
 
 PAGE 
 
 . 288 
 . 141 
 
 1. 
 
 ii. 21 
 
 iii. 1 
 
 20 
 
 Bellum Civile 
 
 7 . . .234 
 
 . 195 
 
 . 185, 248 
 
 . 178 
 
 Cassiodoeus 
 Chronicon . . 317 
 
 Cato 
 
 de Re Rustica 
 
 5 . . 143 
 
 Cbnsorinu.s 
 
 de Die Natali 
 
 24, 3 . . . 203 
 
 CiCEEO 
 
 Brutus 
 
 14, 55 . . . 125 
 
 20, 79 . . . 134 
 
 34, 128 . . 248 
 
 89, 304 . . . 175 
 
 Auct. ad Herenmium 
 
 i. 12, 21 . . 214 
 ii. 28, 45 . 248 
 
 de Imientione 
 
 ii. 22, 67 . . 206 
 
 de Oratore 
 i. 39, 176 . 11 
 
 39, 177 . 6 
 
 
 PAGE 
 
 i. 40 . 
 
 . 138 
 
 40, 183 . 
 
 . 135 
 
 ii. 47, 195 . 
 
 . 157 
 
 iii. 1, 3 
 
 202 
 
 1,4 
 
 . 171 
 
 Oratoriae pariitiones 
 34, 118 . . 143 
 
 Topica 
 
 6, 29 
 
 10 
 
 pro ArcJiia 
 4, 7 . . 240, 311 
 
 pro 
 
 Balio 
 
 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 
 
 Dimnatio 
 
 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 
 
468 
 
 EOMAK PUBLIC LIFE 
 
 35, 102 
 39, 97 
 
 PAGE 
 
 . 309 
 . 236 
 
 in GatiUnam 
 
 iv. 5, 10 
 
 . 281 
 
 fw Chuntio 
 
 13, 38 
 29, 79 
 33, 91 
 42, 119 
 
 42, 120 
 
 43, 120 
 43, 121 
 43, 122 
 48, 134 
 53, 147 
 63 
 
 . 235 
 
 . 236 
 
 . 236 
 
 185, 228 
 
 . 228 
 
 . 64 
 
 . 228 
 
 218, 220 
 
 225, 226 
 
 . 208 
 
 . 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 
 Sesponsis 
 
 8, 15 . . 277 
 
 13, 27 . 209 
 
 26, 55 . 175 
 
 de Lege Agraria 
 
 it. 7, 8 . . .124 
 
 7, 16 . 234 
 
 7, 17 . . 234 
 
 7, 18 . . 255 
 
 8, 21 . . 185 
 
 9, 24 186, 187 
 
 FAQE 
 
 . 49 
 
 75, 217 
 
 . 49 
 
 179, 251 
 
 234, 251 
 
 . 230 
 
 . 230 
 
 . 230 
 
 . 203 
 
 pro Lege Mwnilia 
 
 6, 14 . . . 320 
 21, 62 . . . 168 
 
 pro Milone 
 
 ii. 10, 
 
 26 
 
 11, 
 
 26 
 
 11, 
 
 28 
 
 12, 
 
 30 
 
 12, 
 
 31 
 
 19, 
 
 50 
 
 19, 
 
 51 
 
 29, 
 
 81 
 
 34, 
 
 93 
 
 3,7 . 
 
 9, 24 . 
 
 pro Mwrena 
 
 7, 16 . 
 
 8, 18 . 
 12, 27 . 
 20, 42 . 
 
 . 63 
 
 . 186 
 
 . 130 
 
 . 215 
 . 141 
 . 208 
 
 FMlippicae 
 
 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 
 
 xlv. 4, 11 . . 156 
 
 11, 29 . 288 
 
 in Pisonem 
 
 3, 6 
 
 4,9 
 
 12, 26 
 
 15, 36 
 
 16, 37 
 22, 51 
 
 . 189 
 173, 282 
 . 191 
 . 259 
 . 318 
 . 315 
 
 pro Flancio 
 
 8, 19 . . , 298 
 
 11, 28 . . . 215 
 
 14, 33 . . 175 
 
 18, 19 . . 188 
 
 20, 49 . . 253 
 
 22, 53 
 25, 60 
 28, 69 
 
 PAGE 
 
 . 258 
 . 197 
 . 248 
 
 de Provinciis Con- 
 sularibus 
 
 2, 3 . . .322 
 
 3, 6 . 318 
 8, 17 . 180 
 
 15, 37 . . 322 
 
 19, 46 . . . 173 
 
 pro Quinctio 
 
 7, 29 . . . 448 
 
 pro RaMrio 
 
 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 Roseio Amer. 
 
 36, 100 . . . 223 
 
 pro Roseio Com. 
 
 6, 16 . . 185 
 
 pro 
 
 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 
 
 286 
 
 pro Tullio 
 
 16, 38 . 384, 448, 450 
 16, 39 . ... 448 
 
INDEX OF AUTHORS CITED 
 
 in Vatinium 
 
 
 PAGE 
 
 PAGE 
 
 
 PAGE 
 
 iv. 9, 20 . 
 
 . 322 
 
 ii. 16, 4 . . 286 
 
 5, 12 . 
 
 . 216 
 
 45, 100 . 
 
 . 327 
 
 18, 2 . . 189 
 
 7, 18 . 
 
 . 173 
 
 V. 13, 34 . 
 
 313, 315 
 
 24, 3 . 160 
 
 9, 21 . 
 
 . 169 
 
 14, 36 . 
 
 129, 208 
 
 iii. 2 . . .257 
 
 14, 33 . 
 
 . 392 
 
 
 209, 211 
 
 15, 5 . 250, 277 
 
 
 
 54, 142 . 
 
 .'203 
 
 23, 2 . . 243 
 
 in Verrem 
 
 66, 170 . 
 
 . 328 
 
 23, 3 . . 243 
 
 Actio i.— 
 4, 11 . 
 
 . 213 
 
 ad Familiares 
 
 24 . . . 287 
 iv. 1, 4 . . 248 
 
 8, 21 . 
 
 . 208 
 
 i. 1 . 
 
 . 288 
 
 1, 6 . . 160 
 
 10, 30 . 
 
 . 189 
 
 2,1 . 
 
 . 271 
 
 1, 7 . . 411 
 
 12, 36 . 
 
 . 212 
 
 2,2 . 
 
 . 268 
 
 3, 3 . . 172 
 
 13, 37 . 
 
 . 152 
 
 9, 25 49 
 
 , 251, 322 
 
 9, 1 . 173, 218 
 
 13, 38 . 
 
 . 254 
 
 iii. 8, 4 
 
 326, 327 
 
 15, 5 . . 199 
 
 
 
 8,5 . 
 
 320, 327 
 
 16, 6 . . 179 
 
 Actio ii. — 
 
 
 8,6 . 
 
 . 327 
 
 16, 7 . . 173 
 
 i. 12, 36 
 
 . 161 
 
 iv. 12 . 
 
 . 143 
 
 V. 2, 3 . . 314 
 
 13, 34 
 
 213, 323 
 
 V. 2, 3 
 
 208, 285 
 
 11, 2 . . 314 
 
 13, 36 
 
 . 323 
 
 2,4 
 
 ' . 208 
 
 16, 2 . . 320 
 
 15, 40 
 
 . 215 
 
 2,7 . 
 
 . 189 
 
 20, 1 . . 327 
 
 33, 84 
 
 328, 450 
 
 2, 9 . 
 
 . 271 
 
 20, 3 . . 156 
 
 36, 90 
 
 . 215 
 
 20, 2 
 
 . 323 
 
 21, 6 . . 324 
 
 41, 105 
 
 . 189 
 
 vi. 6, 5 
 
 . 352 
 
 21, 9 . 327 
 
 42, 109 
 
 . 206 
 
 vii. 30 250 
 
 445, 446 
 
 21, 12 . . 276 
 
 44, 114 
 
 . 206 
 
 viii. 6, 4 
 
 209, 211 
 
 21, 13 . . 275 
 
 45, 115 
 
 . 11 
 
 6, 5 
 
 . 210 
 
 vi. 1, 2 . . 326 
 
 45, 117 
 
 . 326 
 
 8, 5 
 
 . 272 
 
 1, 15 319,326,327 
 
 46, 119 
 
 178, 206 
 
 8, 6 
 
 180, 272 
 
 2, 4 . 319, 326 
 
 ii. 3, 7 
 
 . 320 
 
 8, 8 . 
 
 . 153 
 
 2,5 . .319 
 
 13, 32 
 
 318, 321 
 
 ix. 21, 2 
 
 . 12 
 
 6, 4 . . 213 
 
 
 325 
 
 X. 12, 3 
 
 179, 180 
 
 vii. 2, 8 . . 135 
 
 15,37 
 
 . 318 
 
 12, 4 
 
 . 179 
 
 viii. 9, 4 . 352 
 
 16, 39 
 
 . 318 
 
 25, 2 
 
 . 186 
 
 11, 1 . 333 
 
 24, 59 
 
 . 318 
 
 xi. 27, 8 
 
 . 337 
 
 15, 3 . .201 
 
 26, 63 
 
 231, 321 
 
 xii. 1, 1 
 
 . 338 
 
 ix. 9, 3 . . 147 
 
 29,70 
 
 . 328 
 
 4, 2 
 
 . 322 
 
 15, 2 . 195 
 
 30, 75 
 
 . 328 
 
 30, 7 
 
 . 327 
 
 xii. 21, 1 . 270 
 
 49, 122 
 
 . 184 
 
 xiii. 11, 1 
 
 . 232 
 
 xiv. 12, 1 . . 436 
 
 53, 133 
 
 . 317 
 
 11, 3 
 
 305, 313 
 
 ' 
 
 55, 137 
 
 . 317 
 
 26, 3 
 
 . 385 
 
 ad Quintum fratrem 
 
 60, 147 
 
 . 231 
 
 XV. 5, 2 
 
 . 288 
 
 i. 1, 4, 12 . . 324 
 
 iii. 6, 12 
 
 231, 321 
 
 xvi. 12, 3 
 
 . 187 
 
 1, 9, 26 . . 443 
 
 6, 13 
 
 . 306 
 
 
 
 1, 11, 33 . . 321 
 
 6, 14 
 
 . 231 
 
 ad Atticum 
 
 2, 5 . . .328 
 
 7, 18 
 
 . 231 
 
 i. 13, 2 . 
 
 . 269 
 
 ii. 3 . . 212, 446 
 
 33,77 
 
 . 321 
 
 13, 3 . 
 
 . 278 
 
 3, 5 . . .282 
 
 58, 134 
 
 175, 324 
 
 14, 1 . 
 
 . 160 
 
 6, 4 . . 288 
 
 60, 138 
 
 . 385 
 
 14,3 . 
 
 . 272 
 
 6, 5 . . .288 
 
 70, 163 
 
 . 322 
 
 14, 5 . 
 
 . 271 
 
 13, 3 . . . 284 
 
 73, 170 
 
 . 322 
 
 16, 8 . 
 
 . 285 
 
 ad Brutum 
 
 79, 183 
 
 . 214 
 
 16, 12 . 
 
 . 282 
 
 i. 5 4 . . 148, 255 
 
 cc. 81-96 
 
 . 321 
 
 16, 13 . 
 
 . 173 
 
 *» «-* J J. * p J. ^\J y ArfVl/ 
 
 89, 207 
 
 . 318 
 
 17, 9 
 
 . 287 
 
 Academia priora 
 
 00. 188-2S 
 
 2 . 321 
 
 ii. 1, 8 . 
 
 169, 287 
 
 ii. 30, 97 178,384,450 
 
470 
 
 ROMAN PUBLIC LIFE 
 
 de Di 
 
 vinatione 
 
 
 PAGE 
 
 
 
 PAGE 
 
 
 PAGE 
 
 iii. 30, 109 . 283 
 
 9, 2, 6, 1 
 
 . 410 
 
 i. 2, 3 
 
 . 62 
 
 31, 111 . 228 
 
 9, 51, 1 . 
 
 . 393 
 
 15, 27 
 
 . 164 
 
 31, 112 . . 193 
 
 9, 62, 19 
 
 . 410 
 
 16, 28 
 
 . 39 
 
 
 10, 40, 8 
 
 . 400 
 
 16, 29 
 
 172, 227 
 
 de Sepublica 
 
 
 
 17, 31 
 
 . 39 
 
 i. 26, 42 . .44 
 
 COLLATIO 
 
 58, 132 
 
 . 36 
 
 40, 62 
 
 . 79 
 
 leg. Mos. 
 
 et Rom. 
 
 ii. 33, 70 
 
 36 
 
 40, 63 
 
 . 84 
 
 14, 3, 2 . 
 
 . 408, 410 
 
 33, 71 
 
 . 164 
 
 ii. 8, 14 
 
 3, 58 
 
 
 
 34, 71 
 
 163, 166 
 
 9, 15 
 
 . 61 
 
 DiGESTA 
 
 34, 72 
 
 163, 164 
 
 9, 16 
 
 52, 123 
 
 
 
 35, 73 
 
 . 164 
 
 12, 23 
 
 . 47 
 
 1, 1, 7 . 
 
 . 378, 379 
 
 35, 74 
 
 . 164 
 
 12, 24 
 
 . 45 
 
 1 
 
 1,8 
 
 . 205 
 
 35,77 
 
 163, 164 
 
 13, 25 
 
 . 4fl 
 
 1 
 
 1, 71 . 
 
 . 206 
 
 36, 76 
 
 39, 40 
 
 14, 26 15, 51, 61, 123 
 
 1 
 
 2,2 . 
 
 . 68 
 
 de Finihus 
 
 17, 31 43, 44, 46, 49 
 56, 67 
 
 1 
 1 
 
 2, 2, 3 
 2,2,4 
 
 . 87 
 102, 104 
 
 ii. 16, 54 
 
 199, 213, 240 
 
 20, 35 . .12 
 
 1 
 
 2, 2,6 
 
 . 87 
 
 21, 69 
 
 44 
 
 22, 39 74, 252 
 
 1 
 
 2, 2, 7 
 
 . 128 
 
 
 
 22, 40 72, 252 
 
 1 
 
 2,2,8 
 
 . 126 
 
 de Legihus 
 
 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, 69 . 105, 206 
 iii. 3, 6 167, 234, 236 
 
 3, 7 208, 209, 219 
 
 222, 226, 232 
 
 3, 8 . .78 
 
 3, 9 84, 85, 145 
 
 164, 195 
 
 4, 10 160, 161, 195 
 
 22, 44 . .76 
 24, 45 . .49 
 
 30, 62 . .77 
 
 31, 53 . .86 
 31, 54 42, 63, 106 
 
 167, 168, 170 
 
 31, 55 . . 198 
 
 33, 58 . .94 
 
 36, 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 
 
 1 
 1 
 1 
 1 
 1 
 1 
 1 
 1 
 1 
 
 1 
 1 
 1 
 1 
 1 
 1 
 1 
 
 2, 2, 18 
 2, 2, 19 
 2, 2, 21 
 2, 2, 22 
 2, 2, 23 
 2, 2, 25 
 2, 2, 27 
 2, 2, 30 
 2, 2, 32 
 
 2, 2, 33 
 2, 2, 37 
 
 2, 2, 38 
 3,9 . 
 
 3, 31 . 
 4,1 . 
 6, 9 
 
 . 84 
 
 . 84, 195 
 
 . 97 
 
 . 80 
 
 . 80, 106 
 
 . 113 
 
 . 120 
 
 . 235 
 
 202, 368 
 
 411, 450 
 
 . 407 
 
 . 128 
 
 . 128 
 
 . 378 
 
 . 350 
 
 343, 380 
 
 . 23 
 
 4, 11 
 
 . 107, 266 
 257, 445 
 
 Q. Cicero 
 
 1 
 
 1 
 
 9, 5 
 9, 6 . 
 
 400 
 400 
 
 9, 22 
 
 . 234 
 
 de Petitione Consulatus 
 
 1 
 
 9, 7 . 
 
 400 
 
 15 . 
 
 . 258 
 
 14, 57 . . . 188 
 
 1 
 
 9, 8 
 
 400 
 
 16 . 
 16, 36 
 
 . 258 
 . 313 
 
 Codex JtrsTiNiAirtrs 
 
 1 
 1 
 
 9, 10 . 
 9, 11 . 
 
 400 
 400 
 
 20, 46 
 
 . 213, 259 
 
 1, 17, 1, 7 . . 343 
 
 1 
 
 11, 1, 1 
 
 410 
 
 de Nat. Deor. 
 
 1, 26, 2 . . . 411 
 
 1 
 
 12 . 
 
 . 408 
 
 
 
 1, 43, 1 . . . 413 
 
 1 
 
 12, 1 . 
 
 . 408 
 
 ii. 4, 11 
 
 . 165 
 
 3, 26, 7 . . 416 
 
 1 
 
 12, 1, 4 
 
 . 408 
 
 iii. 18, 45 
 
 136 
 
 4, 43, 2 . . . 19 
 
 1 
 
 12, 1, 6 
 
 . 408 
 
 de 
 
 Officiis 
 
 4, 66, 4, 1 . 410 
 
 5, 27, 1 . . 444 
 
 1 
 1 
 
 12, 3 . 
 13 
 
 . 408 
 43, 63, 81 
 
 i. 12, 37 
 
 . 292 
 
 6, 60, 1 . . . 371 
 
 1 
 
 13, 1, 2 
 
 . 369 
 
 42, 150 
 
 . 185 
 
 7, 18, 1 . . 91 
 
 1 
 
 13, 1, 4 
 
 . 369 
 
 ii. 17, 58 
 
 . 130, 210 
 
 7, 62, 17 . . 408 
 
 1 
 
 15 . 
 
 413 
 
 22, 76 
 
 . 138, 286 
 
 8, 40 (41), 13 
 
 . 410 
 
 1 
 
 16, 1 . 
 
 . 412 
 
INDEX OF AUTHORS CITED 
 
 471 
 
 
 PAGE 
 
 
 PAQB 
 
 
 PAGE 
 
 1, 15, 3 . 
 
 . 412, 413 
 
 40, 5, 41, 5 . 
 
 424 
 
 p. 18. 
 
 Aooensi . 72 
 
 1, 15, 4 . 
 
 . 413 
 
 40, 10, 6 
 
 402 
 
 22. 
 
 Anquirere . 246 
 
 1, 16, 4, 5 
 
 379, 444 
 
 40, 11, 2 
 
 345 
 
 49. 
 
 Curia . . 42 
 
 1, 16, 8 . 
 
 . 386 
 
 40, 13, 3 
 
 91 
 
 49. 
 
 Currules . 44 
 
 1, 16, 9 . 
 
 . 416 
 
 43, 29, 3, 4 . 
 
 19 
 
 53. 
 
 Centuriatus 15 
 
 1, 16, 9, 3 
 
 . 144 
 
 47, 2, 57 (56) 1 
 
 413 
 
 65. 
 
 Celeres . 42 
 
 1, 17, 1 . 
 
 . 436 
 
 47, 14, 1 
 
 444 
 
 56. 
 
 Clavus annalis 
 
 1, 18, 4 . 
 
 . 386 
 
 47, 21, 3, 1 . 
 
 372 
 
 
 193 
 
 1, 18, 6, 8 
 
 . 390 
 
 47, 22, 4 
 
 107 
 
 62. 
 
 Curionia sacra 42 
 
 1, 19 . 41 
 
 5, 416, 417 
 
 48, 2, 8 . 
 
 144 
 
 64. 
 
 Curiales 
 
 1, 21, 5 . 
 
 . 434 
 
 48, 2, 13 
 
 412 
 
 
 flamiues . 42 
 
 2, 4, 4, 1 
 
 . 144 
 
 48, 3,- 2, 1 
 
 391 
 
 64. 
 
 Caduca 
 
 2, 4, 10, 3 
 
 . 345 
 
 48, 4, 3 . 
 
 106 
 
 
 auspicia . 163 
 
 2, 15, 8 . 
 
 . 397 
 
 48, 6, 5, 1 
 
 444 
 
 66. 
 
 Duicensus . 23 
 
 3, 1, 1, 10 
 
 391, 392 
 
 48, 7, 1 . 
 
 185 
 
 72. 
 
 A?/iot . . 1 
 
 3, 11, 5 . 
 
 . 32 
 
 48, 8, 5 . 
 
 20 
 
 89. 
 
 Fundus 308 
 
 4, 2, 13 . 
 
 . 379 
 
 48, 12, 1 
 
 412 
 
 94. 
 
 Gentilis . 10 
 
 4, 4, 2 . 
 
 . 364 
 
 48, 16, 12 
 
 391 
 
 104. 
 
 Jurare . 53 
 
 4, 5, 2, 1 
 
 . 32 
 
 48, 16, 16 
 
 391 
 
 108. 
 
 Impolitias . 225 
 
 4, 6, 26, 2 
 
 . 152 
 
 48, 19, 2, 1 
 
 393 
 
 113. 
 
 Inarculum . 51 
 
 5, 1, 12, 1 
 
 . 407 
 
 48, 19, 8, 5 . 
 
 408 
 
 113. 
 
 Infra classem 
 
 5, 1, 58 . 
 
 . 383 
 
 48, 19, 9, 11 . 
 
 393 
 
 
 70, 71 
 
 10, 1, 13 
 
 107 
 
 48, 19, 15 
 
 393 
 
 126. 
 
 Maximus 
 
 11, 7, 8 . 
 
 . 351 
 
 48, 19, 27, 1 . 390 
 
 393 
 
 
 curio . 42 
 
 12, 1, 40 
 
 . 410 
 
 48, 19, 27, 2 . 390 
 
 393 
 
 127. 
 
 Municipium 298 
 
 12, 4, 15 
 
 413 
 
 48, 22, 6, 1 
 
 393 
 
 
 303, 305 
 
 14, 1, 1, 18 
 
 . 412 
 
 49, 1, 1 . . . 
 
 444 
 
 131. 
 
 Municeps . 303 
 
 14, 5, 8 . 
 
 . 412 
 
 49, 2, 1, 2 . 
 
 386 
 
 142. 
 
 MuUeos . 266 
 
 14, 6, 1 . 
 
 . 378 
 
 49, 15, 7, 1 . 306 
 
 307 
 
 157. 
 
 Minora 
 
 16, 1, 2, 1 
 
 . 378 
 
 50, 1, 22, 5 . 
 
 400 
 
 
 templa . 166 
 
 19, 2, 56 
 
 . 413 
 
 50, 1, 23 
 
 400 
 
 161. 
 
 Majorem 
 
 20, 2, 9 . 
 
 . 418 
 
 50, 2, 1 . 
 
 439 
 
 
 oonsulem 198 
 
 21, 1 
 
 . 369 
 
 50, 2, 7, 2 
 
 438 
 
 182. 
 
 Oratores . 56 
 
 21, 1, 1 . 
 
 . 211 
 
 50, 4, 1, 1 
 
 439 
 
 185. 
 
 Ordo sacer- 
 
 21, 1, 40-42 
 
 . 210 
 
 50, 4, 1, 2 . 
 
 439 
 
 
 dotum . 51 
 
 22, 1, 3, 3 
 
 . 410 
 
 50, 4, 1, 3 . 
 
 439 
 
 198. 
 
 Optima lex 44 
 
 23, 2, 44 
 
 . 400 
 
 50, 4, 18 
 
 439 
 
 
 84, 194 
 
 24, 1, 23 
 
 . 397 
 
 50, 15, 3 
 
 430 
 
 209. 
 
 Picta . . 45 
 
 27, 1, 17 
 
 . 429 
 
 50. 15, 4 
 
 431 
 
 210. 
 
 Pedarius . 270 
 
 27, 9, 1 . 
 
 . 397 
 
 50, 15, 8, 5 
 
 429 
 
 218. 
 
 Postliminium 
 
 27, 10, 1 
 
 . 22 
 
 50, 16, 8, 7 . 
 
 429 
 
 
 318 
 
 28, 2, 11 
 
 . 26 
 
 50, 16, 144 . 
 
 58 
 
 220. 
 
 Palatium . 2 
 
 28, 2, 26 
 
 . 379 
 
 50, 17, 77 
 
 48 
 
 221. 
 
 Paribus equis 74 
 
 29, 1, 1 
 
 . 380 
 
 50, 17, 133 . 
 
 142 
 
 222. 
 
 Pellices . 55 
 
 36, 1, 1, 2 
 
 . 378 
 
 
 
 224. 
 
 Promulgari 256 
 
 38, 2, 1, 1 
 
 . 144 
 
 DONATUS 
 
 
 225. 
 
 Procincta 
 
 38, 2, 3 . 
 
 402 
 
 ad Terentii Adelp 
 
 ws 
 
 
 classis . 27 
 
 39, 4 
 
 432 
 
 
 172 
 
 230. 
 
 Plorare . 55 
 
 39, 4, 1 . 
 
 . 230 
 
 iv. 2, 9 . 
 
 231. 
 
 Plebeium ma- 
 
 39, 4, 12 
 39, 4, 13 
 
 . 230 
 . 230 
 
 Festus (ed. Miiller) 
 
 233. 
 
 gistratum 184 
 Praefecturae 235 
 
 40, 1, 14, 1 
 
 . 350 
 
 p. 7. Adlecti 
 
 82 
 
 
 236, 302, 304 
 
 40, 4, 11 
 
 . 135 
 
 10. Agonium . 
 
 51 
 
 233. 
 
 Populi 
 
 iO, 4, 35 
 
 . 135 
 
 14. Adsoripticii 
 
 72 
 
 
 commune 445 
 
472 
 
 ROMABT PUBLIC LIFE 
 
 p. 241. 
 
 Patricios 5 
 
 PAGE 
 
 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 ceii- 
 
 
 
 setis 
 
 271 
 
 274. 
 
 Reoiperatio 
 
 294 
 
 293. 
 
 Soita plebei 
 
 445 
 
 297. 
 
 Sororium 
 
 
 
 tigillum 55, 63 
 
 307. 
 
 Sororium 
 
 
 
 tigillum . 
 
 55 
 
 • 308. 
 
 Supplicia . 
 
 54 
 
 318. 
 
 Saoer . 
 
 55 
 
 330. 
 
 Scitum 
 
 
 
 populi . 
 
 445 
 
 333. 
 
 Scriptuarius 
 
 
 
 ager 
 
 230 
 
 334. 
 
 Sexagenaries 
 
 223 
 
 340. 
 
 Septimontium 2 
 
 341. 
 
 Septimontium 2 
 
 344. 
 
 Stata saorifioia 
 
 
 
 226 
 
 351. 
 
 Sinistrum . 
 
 163 
 
 368. 
 
 Termino 
 
 55 
 
 368. 
 
 Urbanas 
 
 67 
 
 Florus 
 
 ii. 15 
 
 267 
 
 Fkagmenta Vaticana 
 
 205 ... 423 
 232 ... 423 
 241 ... 423 
 
 Fbontinus 
 de Aquaeductibus 
 
 1 . . .287 
 
 100 ... 413 
 
 104 ... 413 
 
 129 ... 446 
 
 Fbonto 
 
 ad Amicos 
 
 ii. 7 . . . 424 
 
 Gaitjs 
 Institutiones 
 
 3 . 
 
 4 . 
 
 5 . 
 
 6 . 
 53 . 
 64 . 
 78 . 
 96 . 
 
 129 . 
 
 130 . 
 159-162 
 162 . 
 171 . 
 
 15 . 
 21 . 
 
 101 . 
 
 102 . 
 104 . 
 274 . 
 
 7 . 
 40-44 
 
 72 . 
 
 73 . 
 189 . 
 210 . 
 217 . 
 
 222 . 
 
 223 . 
 
 16 . 
 23 . 
 27 . 
 30 . 
 69-74 
 93 
 
 103-105 
 
 . 126, 
 . 378 
 
 343, 380 
 
 369, 434 
 . 355 
 . 136 
 . 133 
 . 345 
 . 140 
 . 53 
 . 139 
 32, 140 
 . 31 
 . 24 
 
 427, 431 
 . 27 
 . 28 
 29, 30 
 . 71 
 . 320 
 . 144 
 . 345 
 . 345 
 . 91 
 . 143 
 . 143 
 . 143 
 . 143 
 . 134 
 . 127 
 . 74 
 
 205, 242 
 . 143 
 . 64 
 . 449 
 
 Gbllius 
 
 11. 
 iii. 
 
 12 . 
 12, 14 
 
 2 . 
 
 2 . 
 18 . 
 18, 1 
 
 2 . 
 
 3 . 
 10 . 
 10, 8 
 12 . 
 14 . 
 
 . 26 
 33, 53 
 . 33 
 . 23 
 94, 165 
 . 270 
 . 271 
 . 210 
 23, 56 
 . 169 
 267, 268 
 . 225 
 . 212 
 . 157 
 
 
 
 PAGE 
 
 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 . 
 
 9i 
 
 , 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 
 
 Htgib 
 
 US 
 
 p. 115 . 
 
 
 . 214 
 
 176 . 
 
 
 . 300 
 
 JuSTlNIi 
 
 i.NDS 
 
 Institutt 
 
 ones 
 
 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 
 
 JirVENALIS 
 vii. 228 . . 371, 448 
 
INDEX OF AUTHORS CITED 
 
 473 
 
 
 jivitis 
 
 
 PAOE 
 
 
 
 PAOE 
 
 
 PAGE 
 
 iii. 24 
 
 . 80, 161 
 
 vi. 20 . 
 
 
 66, 256 
 
 i. 6 
 
 . 50 
 
 27 
 
 . 175 
 
 26 . 
 
 
 . 298 
 
 7 
 
 . 45 
 
 29 
 
 . 103 
 
 27 . 
 
 
 . 112 
 
 8 
 
 . 44, 59 
 
 30 
 
 . 94 
 
 31 . 
 
 
 . 118 
 
 17 
 
 46, 47, 48, 59 
 
 31 
 
 98, 103 
 
 35 . 
 
 
 . 118 
 
 
 125 
 
 32 
 
 104, 124 
 
 36 . 
 
 
 . 298 
 
 18 
 
 45, 50 
 
 34 
 
 104, 105 
 
 37 . 
 
 
 . 119 
 
 20 
 
 51, 52, 54 
 
 35 
 
 104, 185 
 
 38 . 
 
 
 . 119 
 
 22 
 
 . 48 
 
 42 
 
 . 154 
 
 41 3S 
 
 ,39 
 
 131, 148 
 
 24 
 
 . 57, 291 
 
 53 
 
 . 108 
 
 42 . 
 
 
 120, 122 
 
 26 
 
 42, 55, 63, 80 
 
 54 
 
 . 51, 108 
 
 viL 1 . 
 
 
 121, 122 
 
 28 
 
 . 6 
 
 55 
 
 55, 99, 109, 110 
 
 3 . 
 
 
 . 193 
 
 30 
 
 . 13 
 
 
 209, 236 
 
 4 . 
 
 
 . 168 
 
 32 
 
 33, 48, 56, 57 
 
 57 
 
 . 104 
 
 5 . 
 
 
 . 155 
 
 
 60, 291 
 
 64 
 
 . 259 
 
 9 . 
 
 
 . 175 
 
 35 
 
 12, 59 
 
 65 
 
 . 93 
 
 11 . 
 
 
 . 157 
 
 36 
 
 41, 73, 164 
 
 69 
 
 . 213 
 
 12 . 
 
 
 . 192 
 
 41 
 
 48, 49 
 
 iv. 1 
 
 . Ill, 112 
 
 16 125,241,256,446 
 
 43 
 
 66, 70, 72, 74 
 
 2. 
 
 14, 39, 111 
 
 17 . 
 
 . 
 
 107, 122 
 
 
 252 
 
 6 . 
 
 111, 112, 113 
 
 22 
 
 
 122, 216 
 
 44 
 
 . 224, 229 
 
 
 256 
 
 24 . 
 
 
 . 193 
 
 47 
 
 46, 48 
 
 7 
 
 . 113 
 
 26 . 
 
 
 . 193 
 
 48 
 
 . 76 
 
 8 
 
 . 115, 216 
 
 27 . 
 
 
 . 196 
 
 49 
 
 49, 61, 76 
 
 12 
 
 . 114 
 
 28 . 
 
 
 . 193 
 
 56 
 
 . 45 
 
 15 
 
 . 82 
 
 42 . 
 
 
 123, 186 
 
 59 
 
 . 61 
 
 16 
 
 . 248 
 
 viii. 2 . 
 
 
 . 306 
 
 60 
 
 . 77 
 
 17 
 
 . 192, 291 
 
 12 . 
 
 122, 
 
 124, 125 
 
 ii. 1 
 
 59, 77, 82 
 
 20 
 
 . 158 
 
 
 
 191, 216 
 
 2 
 
 . 14 
 
 21 
 
 . 191 
 
 14 . 
 
 298, 
 
 303, 304 
 
 5 
 
 . 45 
 
 24 
 
 . 116, 218, 222 
 
 15 . 
 
 
 . 121 
 
 8 
 
 55, 77, 79 
 
 25 
 
 . 118 
 
 16 . 
 
 
 . 200 
 
 16 
 
 . 1, 7, 14 
 
 26 
 
 . 191, 192 
 
 18 . 
 
 
 . 278 
 
 18 
 
 . 84, 192, 196 
 
 27 
 
 . 196 
 
 22 . 
 
 
 . 212 
 
 23 
 
 . 92 
 
 30 
 
 . 98, 170, 243 
 
 23 . 
 
 148 
 
 164, 239 
 
 27 
 
 . 92 
 
 31 
 
 . 191 
 
 28 . 
 
 
 . 128 
 
 28 
 
 . 93 
 
 34 
 
 . 195 
 
 32 . 
 
 
 . 196 
 
 32 
 
 . 193 
 
 35 
 
 . 112 
 
 33 . 
 
 
 . 63 
 
 33 
 
 . 94, 100, 197 
 
 41 
 
 . 193 
 
 34 . 
 
 
 154, 194 
 
 34 
 
 . 95 
 
 43 
 
 . 117 
 
 40 . 
 
 
 . 193 
 
 35 
 
 . 95 
 
 44 
 
 . 51 
 
 ix. 7 , 
 
 
 . 193 
 
 41 
 
 . 80 
 
 48 
 
 . 35 
 
 8-12 
 
 
 283 
 
 52 
 
 . 154, 247 
 
 50 
 
 . 179 
 
 10 . 
 
 
 . 139 
 
 55 
 
 . 168 
 
 54 
 
 . 117 
 
 16 . 
 
 
 . 298 
 
 56 
 
 . 9, 94, 95, 101 
 
 55 
 
 . 114, 175 
 
 20 . 
 
 
 . 285 
 
 
 258 
 
 V. 2 
 
 . 114 
 
 26 . 
 
 
 192, 279 
 
 62 
 
 . 1 
 
 7 
 
 . 224 
 
 30 . 
 
 
 219, 236 
 
 iii. 3 
 
 . 175 
 
 12 
 
 . 82, 113 
 
 33-34 
 
 
 . 174 
 
 5 
 
 . 175 
 
 13 
 
 . 113, 258 
 
 34 . 
 
 
 116, 218 
 
 6 
 
 . 98 
 
 20 
 
 . . . 137 
 
 38-39 
 
 
 , 192 
 
 9 
 
 . 102 
 
 31 
 
 . 148, 166, 219 
 
 39 .. 
 
 
 . 166 
 
 11 
 
 . 103 
 
 36 
 
 . 291 
 
 ■ 42 . 
 
 
 197, 239 
 
 13 
 
 . 169, 248 
 
 41 
 
 . .190 
 
 43 . 
 
 299, 
 
 303, 305 
 
 20 
 
 . 79, 154 
 
 vi. 1 
 
 . 148, 183 
 
 46 . 
 
 126, 
 
 128, 145 
 
 21 
 
 . 258 
 
 7 
 
 . 175 
 
 
 184, 
 
 186, 223 
 
474 
 
 SOMAN PUBLIC LIFE 
 
 
 PAGE 
 
 
 
 PAGE 
 
 
 
 PAGE 
 
 X. 1 
 
 . 298, 303 
 
 xxvi. 
 
 6 
 
 . 304 
 
 xxxvii. 
 
 50 
 
 . 204 
 
 6 
 
 . 51, 122 
 
 
 10 
 
 . 210 
 
 xxxviii. 
 
 35 
 
 . 212 
 
 8 5 
 
 11, 136, 216 
 
 
 21 
 
 . 157, 158 
 
 
 36 
 
 . 241, 313 
 
 9 
 
 5, 167, 168 
 
 
 22 
 
 . 253 
 
 
 42 
 
 . 139 
 
 10 
 
 . 5 
 
 
 26 
 
 . 180 
 
 
 52 
 
 . 98 
 
 13 
 
 . 186, 212 
 
 
 33 
 
 . 241 
 
 
 54-60 . 240 
 
 21 
 
 . .146, 175" 
 
 xxvii. 
 
 5 
 
 174,192,204 
 
 
 58 
 
 . 214 
 
 22 
 
 .■ 239 
 
 
 6 
 
 179,211,253 
 
 xxxix. 
 
 15 
 
 . 159, 257 
 
 23 
 
 17, 161, 212 
 
 
 7 
 
 . 203 
 
 
 18 
 
 . 279 
 
 37 
 
 . 157, 175 
 
 
 8 
 
 . 42 
 
 
 19 
 
 . 226 
 
 42 
 
 . 141 
 
 
 10 
 
 . 307 
 
 
 20 
 
 . 204 
 
 46 
 
 . 141 
 
 
 11 
 
 . 225, 228 
 
 
 29 
 
 . 157 
 
 47 
 
 166,211,212 
 
 
 19 
 
 . 156 
 
 
 41 
 
 . 279 
 
 xxi. 17 
 
 . 201 
 
 
 25 
 
 . 228 
 
 
 42 
 
 . 220 
 
 63 
 
 . 189 
 
 
 36 
 
 . 155 
 
 
 44 
 
 . 221, 227 
 
 xxii. 8 
 
 . 195 
 
 
 38 
 
 . 301 
 
 
 
 232, 287 
 
 11 
 
 . 146 
 
 xxviii. 
 
 9 
 
 . 157 
 
 
 54 
 
 . 306 
 
 25 
 
 . 195 
 
 
 10 
 
 . 203, 204 
 
 xl. 
 
 1 
 
 . 203, 204 
 
 26 
 
 . 195 
 
 
 38 
 
 158,200,201 
 
 
 42 
 
 47, 50 
 
 27 
 
 . 196, 200 
 
 
 45 
 
 . 154 
 
 
 43 
 
 . 278 
 
 30 
 
 . 162 
 
 xxix 
 
 10 
 
 288 
 
 
 44 
 
 . 186, 202 
 
 34 
 
 . 131 
 
 
 11 
 
 . 288 
 
 
 51 
 
 . 232 
 
 35 
 
 . 259 
 
 
 12 
 
 . 244 
 
 
 52 
 
 . 162 
 
 41 
 
 . 199 
 
 
 13 
 
 . 203, 204 
 
 X'li. 
 
 2 
 
 . 226 
 
 42 
 
 . 167 
 
 
 20 
 
 . 98 
 
 
 5 
 
 . 307 
 
 55 
 
 . 204 
 
 
 22 
 
 . 183 
 
 
 8 
 
 . 308, 309 
 
 57 
 
 192,195,307 
 
 
 37 
 
 217,226,228 
 
 
 57 
 
 . 220 
 
 61 
 
 . 292 
 
 XXX 
 
 1 
 
 . 200, 203 
 
 xlii 
 
 1 
 
 . 310 
 
 xxiii. 5 
 
 . 305 
 
 
 33 
 
 . 213 
 
 
 9 
 
 . 122 
 
 22 
 
 . 193, 219 
 
 
 39 
 
 . 193 
 
 
 10 
 
 . 180, 218 
 
 23 
 
 . 218, 220 
 
 
 40 
 
 . 180 
 
 
 21 
 
 . 157, 199 
 
 30 
 
 . 211 
 
 
 43 
 
 . 179, 244 
 
 
 
 204, 240 
 
 31 
 
 . 164, 256 
 
 xxxi 
 
 5 
 
 . 188 
 
 
 22 
 
 . 240 
 
 32 
 
 . 320 
 
 
 20 
 
 . 158 
 
 
 31 
 
 155,200,203 
 
 41 
 
 . 210 
 
 
 31 
 
 . 304 
 
 
 32 
 
 . 178 
 
 49 
 
 . 230 
 
 
 50 
 
 53, 189, 210 
 
 
 33 
 
 . 178 
 
 xxiv. 7 
 
 . 253 
 
 xxxii 
 
 1 
 
 . 203 
 
 
 35 
 
 . 204 
 
 9 
 
 79, 203, 204 
 
 
 8 
 
 . 200 
 
 xliii 
 
 2 
 
 . 320 
 
 16 
 
 . 135 
 
 
 27 
 
 . 202 
 
 
 7 
 
 . 183 
 
 18 
 
 226, 228 
 
 
 28 
 
 . 203, 204 
 
 
 8 
 
 . 183 
 
 19 
 
 . 304 
 
 xxxiii 
 
 21 
 
 . 204 
 
 
 11 
 
 . 203 
 
 43 
 
 . 182 
 
 
 23 
 
 . 157 
 
 
 12 
 
 . 155, 200 
 
 44 
 
 . 23 
 
 
 25 
 
 . 244 
 
 
 14 
 
 . 204, 221 
 
 XXT. 1 
 
 . 209 
 
 
 42 
 
 124,137,161 
 
 
 16 
 
 144,161,170 
 
 2 
 
 161,179,212 
 
 
 
 178,210,212 
 
 
 
 174,182,231 
 
 3, 
 
 . 183, 203 
 
 XXXT 
 
 7 
 
 . 308 
 
 
 
 232, 253 
 
 
 204, 309 
 
 
 41 
 
 . 212 
 
 xliv 
 
 . xe 
 
 . 217, 228 
 
 4 
 
 . 169, 171 
 
 xxxvi 
 
 2 
 
 . 322 
 
 
 
 232, 287 
 
 
 254, 277 
 
 
 3 
 
 . 301 
 
 
 17 
 
 . 197 
 
 5 
 
 . 255 
 
 
 36 
 
 . 288 
 
 
 18 
 
 . 324 
 
 22 
 
 . 204 
 
 
 40 
 
 . 180 
 
 xlv 
 
 . 13 
 
 . 285 
 
 41 
 
 . 203 
 
 xxxvii 
 
 . 1 
 
 200 
 
 
 15 
 
 145,228,241 
 
 xxvi. 2 
 
 . 183 
 
 
 45 
 
 . 306 
 
 
 17 
 
 . 284, 318 
 
 3 
 
 . 247, 254 
 
 
 17 
 
 259 
 
 
 21 
 
 . 179, 274 
 
INDEX OF AUTHORS CITED 
 
 475 
 
 xlv. 26 . 
 29 
 32 
 35 . 
 
 PAGE 
 
 . 319 
 . 319 
 . 318 
 . 158 
 
 Epitmne 
 
 11 
 19 
 20 
 46 
 48 
 49 
 59 
 69 
 71 
 83 
 84 
 89 
 134 
 
 . 235 
 192, 194 
 
 . 202 
 284, 287 
 
 . 169 
 
 . 216 
 
 122, 168 
 . 183 
 . 311 
 . 185 
 
 146, 312 
 
 123, 192 
 430 
 
 11. 
 iii. 
 
 Maceobius 
 Saturnalia 
 
 15, 19 
 
 16, 6 
 16, 10 
 
 16, 29 
 6 . 
 9,7 
 9, 10 
 
 17, 6 
 
 51 
 176 
 
 55 
 255 
 210 
 
 57 
 
 57 
 308 
 
 Commentaria in 
 
 somnium Scipionis 
 
 ii. 17, 13 . . 242 
 
 Maktialis 
 
 V. 8 
 
 Nonius 
 
 222 
 
 s.v. plebitds 101 
 
 Orosius 
 
 . 402 
 
 14 
 35 
 
 iv. 13 
 
 OVIDIUS 
 
 Fasti 
 
 317 
 589 
 21 
 142 
 603 
 383 
 
 20 
 
 51 
 339 
 
 51 
 352 
 
 44 
 
 Tristia 
 iv. 10, 29 . 
 
 PAGE 
 
 , 399 
 
 Paulus 
 
 Sententiae 
 
 V. 15, 3 . . 144 
 
 Plautus 
 
 Capteivei 
 i. 2, 111 . . 214 
 
 ii. 3, 453 . . 214 
 
 Capteivei : Prologus 
 
 34 . . . .141 
 
 Amphitrvo 
 
 i. 1, 3 . . . 235 
 
 Plinifs 
 Ristoria Naturalis 
 
 iii. 30 
 
 46 
 
 88 
 
 vii. 44 
 
 xvi. 10, 
 
 xviii. 3 
 
 3; 
 
 xix. 4 
 
 40 
 
 xxi. 77 
 
 xxii. 2 
 
 xxyiii. 2 
 
 xxxiii. 2 
 
 . 436 
 
 . 422 
 
 . 317 
 
 168, 170 
 
 126, 256 
 
 55 
 
 xxxiv. 3, 13 
 
 Plinitjs 
 
 i. 23 . 
 
 ii. 11 . 
 
 11, 3 ff. . 
 
 iii. 4, 2 
 
 19, 8 
 
 iv. 9, 2 
 
 15, 8 
 
 vi. 19 . 
 
 31, 6 
 
 31, 8 
 
 227 
 106 
 
 15 
 431 
 431 
 291 
 163 
 259 
 
 71 
 230 
 
 81 
 137 
 
 . 370 
 
 . 389 
 
 387 
 
 . 444 
 
 . 400 
 
 . 391 
 
 . 369 
 
 374 
 
 389 
 
 . 388 
 
 vii. 6, 8 
 
 18, 2 
 
 viii. 24 . 
 
 144 
 428 
 
 Epistolae ad Trajam/wm 
 
 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 
 
 Panegyrieus 
 
 8 . 
 
 . 360 
 
 37 . 
 
 432 
 
 64 . 
 
 189 
 
 77 . 
 
 367 
 
 80 . 
 
 . 440 
 
 84 . 
 
 . 356 
 
 Pmscia 
 
 NUS 
 
 viii. 14, 78 
 
 . 84 
 
 QtTINCTIL 
 
 lANUS 
 
 Declar/ha 
 
 Hones 
 
 311 
 
 . 91 
 
 Institutiones Oratoriae 
 . 257 
 
 ii. 4, 33 
 iii. 6, 70 
 
 10, 1 
 vii. 2, 20 
 xii. 6, 1 
 
 385, 450 
 . 387 
 . 387 
 . 364 
 
 Sallustius 
 Oatilina 
 
 18 
 
 58 
 187 
 
476 
 
 ROMAN PUBLIC LIFE 
 
 
 
 PAGE 
 
 
 
 PARE 
 
 de Clemi 
 
 ntia 
 
 
 39 . . . .20 
 
 13 
 
 
 419 
 
 
 PAGE 
 
 50 . . 269, 277, 280 
 
 14 
 
 
 407 
 
 i. 10 . 
 
 357 
 
 52 . . . .271 
 
 
 
 
 
 
 55 . . . .135 
 
 
 Viia Elagabali 
 
 
 Consolatio ad Pohjl 
 
 ium 
 
 Historiae 
 
 11 
 
 • 
 
 374 
 
 vi. 4 . 
 
 419 
 
 i. frag. 77 . . 308 
 i. frag. 77 § 22 . 280 
 
 
 Vita Gordianorwm 
 
 5 
 
 419 
 
 11 
 
 . 
 
 375 
 
 Controversiae 
 
 
 Jugurtha 
 
 
 Vita Hadriani 
 
 
 ii. 3 . 
 
 226 
 
 27 
 34 
 
 200, 201, 322 
 . 160 
 
 6 
 
 7 
 
 . 354, 
 . 375, 
 
 359 
 
 387 
 
 JSpistulae 
 
 
 89 
 
 . 283 
 
 8 
 
 . 411, 
 
 420 
 
 83, 14 . . . 
 
 407 
 
 40 
 
 . 240 
 
 18 
 
 
 420 
 
 86, 10 . . . 
 
 210 
 
 43 
 
 
 . 200 
 
 22 
 
 '. '. '. 414, 
 
 423 
 
 
 
 62 
 
 
 285 
 
 
 
 
 de Vita Beata 
 
 
 63 
 
 
 '. 130 
 
 Vita Marci or Vita M. 
 
 24 . 
 
 134 
 
 84 
 
 
 . 126 
 
 
 Antonim 
 
 
 
 
 86 
 
 
 . 73 
 
 6 
 
 . 
 
 360 
 
 Servius 
 
 
 95 
 
 
 . 130 
 
 10 
 
 
 368 
 
 
 
 104 
 
 
 286, 287 
 
 11 
 
 . 374, 410, 
 
 423 
 
 ad Vergilii Aeniidem 
 
 
 18 
 
 . 
 
 442 
 
 ii. 156 
 
 16 
 
 SoRiPTOKBs Historiae 
 
 
 Vitd Maximini 
 
 
 iii. 81 
 
 
 52 
 
 AUGUSTAE 
 
 Vita Alexandri 
 
 14 
 15 
 
 
 355 
 363 
 
 89 
 
 V. 560 
 
 755 
 
 
 39 
 
 41 
 300 
 
 15 . 
 
 16 . 
 20 . 
 
 
 . 404 
 . 421 
 . 357 
 
 7. 
 
 Vita Nigri 
 
 418 
 
 vi. 190 
 609 
 80S 
 
 
 38 
 
 8, 55 
 
 47 
 
 21 . 
 
 
 410, 411 
 
 
 Vita Pertinacis 
 
 
 vii. 188-612 
 
 
 44 
 
 26 . 
 31 . 
 43 . 
 
 
 . 400 
 
 . 419 
 
 368, 370 
 
 9 
 
 12 
 
 
 413 
 
 418 
 
 viii. 642 
 si. 334 
 
 
 26 
 
 44 
 
 49 . 
 
 57 . 
 
 
 . 390 
 . 42!; 
 
 
 Vita Severi 
 
 
 SOLINUS 
 
 
 
 7 
 
 
 387 
 
 i. 15 
 
 2 
 
 VUa Ant. Oaracallae 
 
 12 
 
 
 396 
 
 
 
 3 . . . .391 
 
 14 
 
 . 
 
 409 
 
 Statius 
 
 
 Vita Antonini Pii 
 
 
 Vita Taciti 
 
 
 Silvae 
 
 
 3 . . . .423 
 
 1 
 
 
 358 
 
 V. 1 
 
 419 
 
 4 . .360 
 
 2 
 
 
 359 
 
 
 
 6 . . . 391 
 
 
 
 
 Suetonius 
 
 
 8 . . . 407, 425 
 
 
 Vita L. Veri 
 
 
 
 
 Vita Aurelani 
 
 2 
 
 , 
 
 354 
 
 Augustus 
 
 
 31 . . . .397 
 
 
 
 
 2 
 
 7,14 
 
 
 
 Seneca , 
 
 
 5 
 
 386 
 
 Vita Carini 
 
 
 
 
 10 
 
 184 
 
 8 . . . .419 
 
 
 de Beneficiis 
 
 
 27 
 
 347 
 
 16 . . . .419 
 
 iii. 
 
 11 . . . 
 
 226 
 
 32 
 
 892 
 
 
 Ti. 
 
 34, 2 
 
 357 
 
 33 . . 384 
 
 . 421 
 
 Vita Oommodi 
 4 . . . .411 
 
 
 de Brevitate Vitae 
 
 35 347,365,366,375,420 
 
 36 . . . 394 
 
 6 . 
 
 
 368, 374 
 
 19, 
 
 1 . . . 
 
 412 
 
 37 
 
 
 404 
 
INDEX OF AUTHORS CITED 
 
 477 
 
 
 
 PAOE 
 
 
 
 PAGE 
 
 
 FACZ 
 
 38 . 366, 399, 404 
 
 9 
 
 
 392 
 
 i. 14 . 47 
 
 , 349, 360 
 
 39 
 
 . 227, 404 
 
 10 
 
 
 399 
 
 15 . 
 
 349, 372 
 
 40 
 
 
 134, 371 
 
 
 
 
 17 . 
 
 . 361 
 
 46 
 
 
 . 312 
 
 
 Galba 
 
 
 31 . 
 
 430, 435 
 
 47 
 
 
 428 
 
 6 . 
 
 . 
 
 401 
 
 33 . 
 
 . 430 
 
 49 
 
 
 . 408 
 
 7 . 
 
 . 
 
 401 
 
 54 . 
 
 3, 442 
 
 52 
 
 
 . 441 
 
 8 . 
 
 
 401 
 
 57 . 
 
 . 441 
 
 53 
 
 
 . 352 
 
 9 . 
 
 
 389 
 
 58 . 
 
 . 360 
 
 94 
 
 
 . 265 
 
 17 . 
 
 
 361 
 
 72 . 
 
 . 363 
 
 97 
 
 
 . 229 
 
 
 
 
 73 . 
 
 . 442 
 
 101 
 
 
 . 395 
 
 
 Julius 
 
 
 74 . 
 
 . 375 
 
 
 70 . 
 
 ■ 
 
 34 
 
 75 . 
 
 374, 383 
 
 Caesar 
 
 
 
 
 76 . 
 
 . 428 
 
 1 . . . .15 
 
 
 Nerva 
 
 
 77 
 
 370, 379 
 
 7 . 
 
 
 . 327 
 
 15 . 
 
 . 
 
 421 
 
 78 
 
 396, 442 
 
 10 . 
 
 11 . 
 
 
 . 211 
 . 236 
 
 49 . 
 
 
 363 
 
 80 . 
 
 81 . 
 
 . 434 
 47, 349 
 
 13 . 
 
 
 . 187 
 
 
 Tiberius 
 
 
 ii. 6 . 
 
 . 430 
 
 16 . 
 
 
 . 275 
 
 1 . 
 
 . 7, 11, 14. 16 
 
 23 . 
 
 . 159 
 
 17 . 
 
 
 . 169 
 
 2 . 
 
 157, 174, 192 
 
 212 
 
 27 fF. 
 
 .387 
 
 19 . 
 
 
 . 215 
 
 26 . 
 
 
 365 
 
 28 . 
 
 . 388 
 
 20 . 
 
 
 198, 268 
 
 27 . 
 
 
 355 
 
 30 . 
 
 144, 275 
 
 23 . 
 
 
 . 183 
 
 30 . 
 
 
 376 
 
 33 . 
 
 . 267 
 
 24 . 
 
 
 . 139 
 
 31 . 
 
 
 197 
 
 36 . 
 
 . 401 
 
 41 
 
 248, 335, 349 
 
 33 . 
 
 
 383 
 
 37 . 
 
 . 374 
 
 48 . 
 
 . 145 
 
 55 . 
 
 
 420 
 
 38 . 
 
 . 366 
 
 76 . 
 
 . 337. 353. 407 
 
 58 . 
 
 
 355 
 
 42 . 
 
 . 387 
 
 
 67 . 
 
 
 363 
 
 47 . 
 
 . 417, 428 
 
 Caligula or Gains 
 
 75 . 
 
 
 390 
 
 50 . 
 
 387, 391 
 
 14 . . . -361 
 
 15 . . . .392 
 
 16 . . 404, 429 
 24 . . . .361 
 
 6 . 
 
 Titus 
 Vespasianus 
 
 409 
 
 59 . 
 67 . 
 79 . 
 
 85 . 21( 
 87 . 
 
 405, 436 
 
 . 387 
 
 . 388 
 
 ), 369, 397 
 
 . . 352 
 
 de Claris Rhetoribus 
 
 5 . 
 
 . 209 
 
 369 
 
 iii. 4 . 
 10 . 38' 
 
 . 374 
 ', 388, 420 
 
 1 . . . .226 
 
 6 . 
 
 . 
 
 359 
 
 14 . 
 
 . 386 
 
 Claudius 
 
 8 . 
 
 9 . 
 
 '. '. 374 
 
 428 
 403 
 
 17 . 
 26 . 
 
 374, 375 
 58, 66 
 
 11 . . . . 363 
 
 23 . 
 
 . 
 
 442 
 
 27 . 
 
 . 105 
 
 12 . . . 391,- 416 
 
 
 
 
 28 . 
 
 . 338 
 
 14 . . . .392 
 
 
 Tacitus 
 
 
 29 . 
 
 . 364 
 
 16 . . . 225, 403 
 24 9, 135, 184, 216, 366 
 
 
 Agricola 
 
 
 32 . 
 35 . 
 
 . 433 
 . 433 
 
 374, 394, 399, 400 
 
 4 . 
 
 . 
 
 415 
 
 36 . 
 
 . 355 
 
 25 401,402,415,428,429 
 
 42 . 
 
 
 433 
 
 44 . 
 
 . 317 
 
 26 . . . .39 
 
 
 
 ' 
 
 49-51 
 
 . 357 
 
 28 . . . .366 
 
 
 'Armales 
 
 
 51 . 
 
 . 390 
 
 38 . . . . 210, 
 
 i. 1 
 
 . 
 
 113i 
 
 52-55 
 
 210, 369 
 
 
 2 
 
 '. 339, 346 
 
 i27' 
 
 53 . 
 
 352, 394 
 
 . Domitiamis 
 
 3 
 
 
 360 
 
 56 . 
 
 . 346,360 
 
 2 .■ . . . 361' 
 
 7 
 
 
 344 
 
 60 . 
 
 . 376 
 
 4 . . . .369 
 
 11 
 
 
 429 
 
 61 . 
 
 . 397 
 
 8 227, 
 
 228,3 
 
 51,374,392 
 
 12 
 
 . 
 
 358 
 
 66 . 
 
 . 387 
 
478 
 
 EOMAK PUBLIC LIFE 
 
 iii. 70 
 71 
 74 
 
 13 
 15 
 18 
 21 
 27 
 .81 
 34 
 35 
 36 
 38 
 42 
 56 
 72 
 V. 8 
 
 vi. 2 
 10 
 11 
 30 
 39 
 47 
 48 
 49 
 
 xi. 5 
 15 
 22 
 
 . 346 
 
 . 433 
 
 156, 366 
 
 . 408, 409 
 
 402, 414, 432 
 
 . 387 
 
 387, 395, 415 
 
 . 434 
 
 387, 388 
 
 . 215 
 
 374 
 
 . 387 
 
 369, 387 
 
 . 440 
 
 . 368 
 
 374, 375 
 
 . 443 
 
 . 431 
 
 (16) 
 
 25 
 
 27 
 
 xii. 10 
 
 .21 
 
 23 
 
 .24 
 
 53 
 
 59 
 
 60 
 
 62 
 
 63 
 
 xiii. 1 
 
 4 
 
 5 
 
 10 
 
 26 
 
 28 
 
 29 
 32 
 
 48 
 50 
 51 
 
 . 407 
 
 (17) 61,406,407 
 
 . 435 
 
 . 434 
 
 370, 448 
 
 . 374 
 
 . 387 
 
 . 405 
 
 . 397 
 
 . 43, 63, 81, 184 
 
 213,266,369,445 
 
 82,133,348,374 
 
 . 39 
 
 . 376 
 
 . 366 
 
 . 345 
 
 2 
 
 . 366 
 
 374, 387 
 
 395, 416, 436 
 
 . 376 
 
 428 
 
 . 395 
 
 . 385 
 
 . 369 
 
 . 388 
 
 . 145 
 
 210, 369, 370 
 
 371, 384, 447 
 
 . 394 
 
 . 436 
 
 . 376 
 
 . 432 
 
 230, 432 
 
 xiv. 11 
 27 
 31 
 41 
 42 
 46 
 62 
 XV. 22 
 28 
 35 
 72 
 
 xvi. 8 
 17 
 26 
 34 
 
 PAGE 
 
 . 344 
 
 300 
 
 . 444 
 
 387, 408 
 
 . 143 
 
 430 
 
 . 420 
 
 . 444 
 
 . 373 
 
 . 418 
 
 . 366 
 
 386, 418 
 
 366, 405 
 
 . 370, 448 
 
 . 369 
 
 Historiae 
 
 i. 4 
 ' 11 
 15 
 55 
 58 
 77 
 84 
 90 
 ii. 62 
 91 
 92 
 
 iii. 58 
 68 
 
 iv. 9 
 39 
 42 
 45 
 48 
 51 
 74 
 
 . 405 
 
 435, 436 
 
 350, 361 
 
 . 344 
 
 . 414 
 
 351 
 
 409 
 
 391 
 
 . 404 
 
 370, 372 
 
 . 391 
 
 . 344 
 
 . 367 
 
 . 370 
 
 . 375 
 
 372 
 
 . 387 
 
 433 
 
 376 
 
 . 319 
 
 Tektulliantts 
 
 Apologeticus 
 
 28 . . . 356 
 
 22 . 
 
 2 
 
 2, 4 
 3 
 5,4 
 
 . 185 
 
 Ulpiantts 
 Regulae 
 
 . 242 
 
 . 105 
 
 243 
 
 . 309 
 
 
 PAGE 
 
 5,8 . 
 
 . 133 
 
 11, 10-13 
 
 . 139 
 
 11, 13 
 
 . 140 
 
 12, 2 
 
 22 
 
 19, 1 
 
 . 24 
 
 20, 2 
 
 . 27 
 
 Valeritis Maximtts 
 
 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 
 
 iT. 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 
 
 Tiii. 1, 7 
 
 . 161 
 
 ix. 5, 1 
 
 . 310 
 
 Vark 
 
 
 
 de Lingua j 
 
 ''jatina 
 
 V. 3 
 
 . 292 
 
 45 ff. 
 
 3 
 
 51 
 56 
 
 80 
 81 
 
 87 
 
 89 
 
 95 
 
 143 
 
 155 
 
 181 
 
 33 
 
 67 
 
 . 44 
 
 41, 63, 80, 84 
 
 93, 98 
 
 . 56 
 
 . 41 
 
 . 41 
 
 . 181 
 
 . 300 
 
 255, 284 
 
 . 40, 75 
 
INDEX OF AUTHORS CITED 
 
 479 
 
 
 PACK 
 
 
 PAOB 
 
 vi. 12 
 
 51 
 
 ii. 7 
 
 . 281 
 
 30 
 
 250 
 
 12 
 
 . 124 
 
 86 
 
 221 
 
 12 
 
 255 
 
 88 
 
 78 
 
 14 
 
 . 311 
 
 91 
 
 257 
 
 15 
 
 . .310 
 
 92 
 
 257 
 
 16 
 
 . 202, 311 
 
 viii. 105 
 
 128 
 
 20 
 
 . 312 
 
 
 
 21 
 
 . 249 
 
 de Be Bustica 
 
 
 27 
 
 . 311 
 
 i. 10, 2 
 
 15 
 
 35 
 
 . 270 
 
 iii. 5, 18 
 
 259 
 
 58 
 
 . 249 
 
 Vellbius 
 
 
 89 
 94 
 
 . 339 
 
 . 215 
 
 ii. 5 . 
 
 27 
 
 121 
 
 . 360 
 
 6 . 
 
 310 
 
 124 
 
 . 352, 372 
 
 Veegilhts 
 Aeneis 
 vi. 609 . 
 
 ViCTOK 
 
 Itome 
 
 12 
 
 . 425 
 
 DE ViEIS IHUSTBIBUS 
 
 72 . . 145, 171, 174 
 
 II. Greek Authors 
 
 Appianus 
 
 V. 4 . 
 
 . 321 
 
 xl. 66 
 
 . 189 
 
 Bella eivilia 
 
 95 . 
 
 . 338 
 
 xli. 36 
 43 
 
 . 195, 314 
 . 251 
 
 i. 7 . 
 
 . 230 
 
 Iberica 
 
 xlii. 6 
 
 . 321 
 
 8 . 
 
 . 142 
 
 83 . 
 
 . 139 
 
 20 
 
 . 336, 432 
 
 12 . 
 
 . 274 
 
 
 
 21 
 
 . 196 
 
 21 . 
 
 . 310 
 
 Syriaca 
 
 23 
 
 171,174,275 
 
 23 . 29 
 
 6, 309, 310 
 
 15 . 
 
 . 203 
 
 51 
 
 . 123, 202 
 
 31 . 
 
 . • . 248 
 
 50 . 
 
 . 431 
 
 xliii. 14 
 
 . 337 
 
 34 . 
 
 . 310 
 
 
 
 16 
 
 . 353 
 
 35 . 
 
 . 311 
 
 Zibyc 
 
 a 
 
 27 
 
 . 248 
 
 38 . 
 
 . 423 
 
 69 . 
 
 . 267 
 
 28 
 
 . 407 
 
 49 . 
 
 311, 312 
 
 
 
 33 
 
 . 337 
 
 59 . 
 
 253, 254 
 
 Dio Cassitis 
 
 44 
 
 . 337, 353 
 
 70 . 
 
 . 249 
 
 
 
 48 
 
 . 210, 394 
 
 74 . 
 
 . 247 
 
 xxxvi. 21 
 
 . 228 
 
 xlvi. 39 
 
 . 411 
 
 98 . 
 
 . 45 
 
 23 
 
 . 207 
 
 45 
 
 . 148 
 
 100 . 
 
 . 186 
 
 25 
 
 . 146 
 
 xlvii. 4 
 
 . 355 
 
 102 . 
 
 . 306 
 
 xxxvii. 9 
 
 . 314 
 
 18 
 
 . 367 
 
 ii. 7 . 
 
 . 354 
 
 27 
 
 247, 257 
 
 xlviii. 12 
 
 . 314 
 
 13 . 
 
 . 231 
 
 28 
 
 . 373 
 
 43 
 
 . 369 
 
 19 . 
 
 . 197 
 
 37 
 
 . 255 
 
 45 
 
 . 402 
 
 26 . 
 
 
 40 
 
 . 156 
 
 xlix. 15 
 
 338,346,355 
 
 30 . 
 
 268, 271 
 
 50 
 
 . 169 
 
 43 
 
 . 249 
 
 106 . 
 
 . 366 
 
 XXX viii. 13 
 
 172, 282 
 
 Ii. 19 
 
 346,355,382 
 
 112 . 
 
 . 203 
 
 14 
 
 . 281 
 
 22 
 
 . 441 
 
 119 . 
 
 . 77 
 
 xxxix. 9 
 
 . 411 
 
 Iii. 1 
 
 . 339 
 
 iii. 30 . 
 
 . 314 
 
 19 
 
 . 251 
 
 7 
 
 . 401 
 
 95 . 
 
 . 249 
 
 39 
 
 . 169 
 
 15 
 
 . 401 
 
 V. 3 . 
 
 . 314 
 
 xl. 56 
 
 . 187 
 
 20 
 
 . 364, 365 
 
480 
 
 ROMAN PUBLIC LIFE 
 
 
 PAGE 
 
 
 PAGE 
 
 
 PAGE 
 
 lii. 21 . 
 
 . 408 
 
 Ivii. 19 . 
 
 . 366 
 
 ii. 9 . 
 
 . 6, 8 
 
 22 389,390,434] 
 
 20 . 
 
 . 390 
 
 10 . 
 
 8, 55 
 
 24 . 
 
 407, 412 
 
 Iviii. 9 
 
 . 387 
 
 12 . 
 
 . 61 
 
 25 . 
 
 . 414 
 
 10 . 
 
 . 387 
 
 14 42,51 
 
 ,58,60,62 
 
 31 . 
 
 . 401 
 
 12 
 
 365, 366 
 
 15 . 
 
 . 18 
 
 33 389,390,412 1 
 
 20 . 
 
 349, 372 
 
 25 . 
 
 - . 17 
 
 
 419, 421 
 
 20, 3 
 
 . 47 
 
 26 . 
 
 20, 23 
 
 43 . 
 
 . 387 
 
 lix. 6 
 
 . 392 
 
 27 
 
 20, 23 
 
 iii. 1 
 
 . 375 
 
 8 
 
 356, 384 
 
 28 . 
 
 . 61 
 
 2 
 
 . 394 
 
 9 356,363,366] 
 
 29 
 
 . 44 
 
 11 . 
 
 . 409 
 
 
 429 
 
 46 . 
 
 . 13 
 
 12 . 
 
 339, 427 
 
 12 
 
 . 369 
 
 48 . 
 
 . 33 
 
 13 . 
 
 433, 434 
 
 13 
 
 . 407 
 
 57 . 
 
 47, 48 
 
 14 . 
 
 432, 433 
 
 20 
 
 367, 372 
 
 62 
 
 . 61 
 
 17 168,345,346 
 
 24 
 
 . 375 
 
 72 . 56, 57, 291 
 
 347,350,351 
 
 Ix. 4 
 
 . 391 
 
 74 . 
 
 . 55 
 
 
 387, 429 
 
 11 
 
 . 371 
 
 iii. 22 . 
 
 . 55 
 
 21 . 
 
 372, 420 
 
 16 
 
 375 
 
 29 . 
 
 . 13 
 
 21,7. 
 
 . 47 
 
 23 
 
 . 345 
 
 34 . 
 
 . 296 
 
 22 . 
 
 . 430 
 
 24 
 
 394, 428 
 
 36 . 
 
 58 
 
 23 
 
 . 435 
 
 Ixii. 3 
 
 . 431 
 
 51 . 
 
 . 296 
 
 30 . 
 
 . 402 
 
 Ixiii. 13 
 
 . 404 
 
 61 . 
 
 . 44 
 
 32 340,341,342 
 
 Ixvi. 9 
 
 . 391, 392 
 
 62 . 
 
 43, 44 
 
 346 
 
 , 386, 394 
 
 Ixvii. 2 
 
 . 401 
 
 It. 14 . 
 
 40, 66, 68 
 
 liv. 1 
 
 . 411 
 
 4 
 
 . 347 
 
 15 . 
 
 . 67, 138 
 
 2 . 
 
 . 412 
 
 Ixviii. 3 
 
 . 361 
 
 18 . 
 
 . 72 
 
 3 . 
 
 . 375 
 
 5 
 
 . 425 
 
 21 . 
 
 . 252 
 
 10 . 
 
 342, 365 
 
 9 
 
 376 
 
 22 . 
 
 35, 66, 229 
 
 11 . 
 
 . 360 
 
 10 
 
 . 376- 
 
 .25 . 
 
 . 62, 64 
 
 12 . 
 
 . 360 
 
 29 
 
 376 
 
 71 . 
 
 . 61 
 
 13 . 
 
 . 375 
 
 Ixix. 16 
 
 . 400 
 
 74 
 
 . 45, 51 
 
 14 
 
 . 375 
 
 Ixxi. 33 
 
 . 395 
 
 V. 1 . 
 
 . 47 
 
 17 
 
 374, 411 
 
 Ixxii. 12 
 
 . 368 
 
 13 . 
 
 . 14 
 
 19 
 
 365, 407 
 
 Ixxiii. 1 
 
 . 359 
 
 19 . 
 
 . 86 
 
 22 
 
 . 365 
 
 5 
 
 . 375 
 
 40 . 
 
 . 15 
 
 24 
 
 . 360 
 
 Ixxiv. 2 
 
 . 387 
 
 61 . 
 
 . 298 
 
 25 
 
 . 441 
 
 Ixxviii. 13 
 
 . 365, 419 
 
 73 . 
 
 . 84 
 
 26 2 
 
 55,364,371 
 
 17 
 
 . 348 
 
 vi. 13 . 
 
 . 403 
 
 30 
 
 . 374 
 
 37 
 
 . 3.75 
 
 16 . 
 
 . 96 
 
 32 
 
 365, 441 
 
 Ixxx. 1 
 
 . 420 
 
 45 . 
 
 . 92 
 
 36 
 
 . 209 
 
 
 
 89 . 
 
 . 99, 189 
 
 It. 3 
 
 . 375 
 
 Fra 
 
 9- 
 
 90 . 
 
 . 97 
 
 25 
 
 . 396 
 
 79 . 
 
 . 284 
 
 91 . 
 
 . 197 
 
 26 
 
 . 411 
 
 DiODO 
 
 lOTS 
 
 95 . 
 
 . 295, 296 
 
 27 
 
 . 420 
 
 
 
 vii. 13 . 
 
 . 300 
 
 Ivi. 10 
 
 . 71 
 
 xi. 68 
 
 . 94 
 
 17 . 
 
 . 96, 100 
 
 40 
 
 . 372 
 
 XX. 46 
 
 . 223 
 
 59 . 
 
 . 72 
 
 42 
 
 . 402 
 
 xxxyii. 2 
 
 . 311 
 
 64 . 
 
 . 101 
 
 46 
 
 . 367 
 
 5, 2 
 
 . 328 
 
 69 . 
 
 . 143 
 
 47 
 
 . 375 
 
 DiONT 
 
 SItJS 
 
 71 . 
 
 . 130 
 
 Itu. 7 3 
 
 75,383,420 
 
 
 
 viii. 69 . 
 
 . 296 
 
 8 
 
 . 352, 363 
 
 Antiquitates 
 
 Romanae 
 
 70 . 
 
 296 
 
 14 
 
 . 413 
 
 ii. 6 . 
 
 . 196 
 
 72 . 
 
 . 296 
 
 17 
 
 . 387 
 
 7 . 
 
 . 15 
 
 74 . 
 
 . 296 
 
INDEX OP AUTHORS CITED 
 
 481 
 
 
 PAOE 
 
 
 Oato major 
 
 
 Paulus 
 
 
 viii. 77 . . . 161 
 
 
 PAGE 
 
 
 
 PAGE 
 
 ix. 16 . 
 
 . 70 
 
 3 . 
 
 . 25 
 
 3 . 
 
 . 
 
 187 
 
 17 . 
 
 . 70 
 
 17 . 
 
 . 227 
 
 38 . 
 
 . 138, 
 
 286 
 
 X. 1 . 
 
 . 102 
 
 18 . 
 
 . 221, 227 
 
 
 
 
 SO . 
 
 . 94 
 
 
 
 
 Pompeius 
 
 
 31 . 
 
 66, 97 
 
 
 Cato minor 
 
 22 . 
 
 . 
 
 225 
 
 32 . 
 
 66, 97 
 
 17 . 
 
 214 
 
 
 
 
 50 . 
 
 . 169 
 
 38 . 
 
 323 
 
 
 Publicola 
 
 
 58 . 
 
 . 104 
 
 46 . 
 
 , 258 
 
 6 . 
 
 
 20 
 
 60 . 
 
 . 102 
 
 
 
 7 . 
 
 '. '. 20, 
 
 145 
 
 xi. 43 . 
 
 . 154 
 
 
 Coriolanus 
 
 11 . 
 
 . 82, 86 
 
 45 . 
 
 . 109 
 
 
 
 12 . 
 
 
 81 
 
 60 . 
 
 . 114 
 
 1 . 
 
 . 218 
 
 
 
 
 63 . 
 
 115, 224 
 
 13 . 
 
 . 300 
 
 QuaesHones Eoinanae 
 
 xix. 16 . 
 XX. 13 . 
 
 . 217 
 . 226 
 
 18 
 24 . 
 
 . 98 
 . 25 
 
 30 
 
 58 
 
 
 17 
 82 
 
 EUSBBIUS 
 
 
 Galba 
 
 103 
 
 
 136 
 
 Chronicon 
 
 4 . 
 
 7 . 
 
 . 434 
 . 361 
 
 
 Eomulus 
 
 
 a. 1991 . . .407 
 
 8 . 
 
 . 367 
 
 13 . 
 
 22 . 
 
 
 82 
 18 
 
 Herodij 
 
 ii. 12 . 
 vi. 1 . 
 vii. 1 . 
 
 6 . 
 
 6,4 
 
 INUS 
 
 . 362, 367 
 . 420 
 . 418 
 . 355 
 
 . 391, 392 
 
 2 . 
 
 3 . 
 
 4 . 
 
 5 . 
 11 . 
 
 0. Gracchus 
 
 185, 213, 225, 227 
 
 . 257 
 
 . 254, 281 
 
 . 310 
 
 . 163 
 
 4 . 
 
 5 . 
 
 Sertorius 
 Sulla 
 
 215 
 187 
 
 JOSBPHUS 
 
 
 Ti. Gracchus 
 
 
 POLTBIUS 
 
 
 ArUiquitates 
 
 7 . 
 
 . 283 
 
 i. 
 
 62 
 
 244 
 
 XV. 10, 3 . . 441 
 
 8 . 
 
 . 230 
 
 ii. 
 
 24 
 
 224 
 
 xvii. 355 . . 430 
 
 10 . 
 
 . 176, 179, 274 
 
 iii. 
 
 22 
 
 293 
 
 xviii. 4, 2 . . 435 
 
 14 . 
 
 . 227, 286 
 
 
 24,12. 
 
 6 
 
 Bellum Judaicum 
 
 15 . 
 
 51, 58 
 
 
 25 
 29 
 87 . 192 
 
 291 
 244 
 193 
 
 ii. 16, 4 . . 431 
 
 
 Marius 
 
 
 vii. 6, 6 . . .431 
 
 5 . 
 24 . 
 43 . 
 
 9 
 
 
 110 
 
 199 
 
 Lydus 
 
 '. 195 
 . 249 
 
 vi. 
 
 12 
 13 
 
 198 
 155 
 
 de Magistralibus 
 
 
 
 
 14 182,244,238 
 
 i. 27 . . . 215 
 
 
 Numa 
 
 
 15 . 158, 
 17 
 
 182 
 231 
 
 38 . . .81 
 
 9 . 
 
 . 52 
 
 
 19 73, 
 
 154 
 
 
 10 . 
 
 . 53 
 
 
 20 
 
 224 
 
 Plutarohus 
 
 17 . 
 
 69, 71 
 
 
 21 
 
 154 
 
 Antonius 
 12 . . . .337 
 
 Gomj. 
 
 . Lijc. cum Numa 
 
 
 23 . 70, 71 
 53 45, 129, 217 
 
 
 4 . 
 
 . 31 
 
 
 56 
 
 182 
 
 Caesar 
 
 
 
 X. 
 
 4 
 
 122 
 
 4 . ■ . .450 
 
 
 Otho 
 
 XX. 
 
 9, 12 . 
 
 306 
 
 13 . . 187 
 
 1 . 
 
 . 391 
 
 xxii. 
 
 24 
 
 284 
 
 61 . 
 
 . 337 
 
 9 . 
 
 . 414 
 
 xxiv. 
 
 9a, 1 . 
 
 213 
 
 2 I 
 
482 
 
 EOMAN PUBLIC LIFE 
 
 
 PAGE 
 
 
 PAGE 
 
 ZONAEAS 
 
 XXX. 4 
 
 . 274 
 
 xiii. p. 621 . 
 
 428 
 
 I- AGE 
 
 15 
 
 . 141 
 
 xiv. 668 . 
 
 141 
 
 vii. 9 . . .82 
 
 17 
 
 . 248 
 
 840 
 
 339 
 
 13 . 63, 80, 194 
 15 . . .7 
 
 Strabo . 
 
 
 Thbophiltjs 
 
 
 ZOSIMUS 
 
 iii. p. 167 . 
 
 . 417 
 
 
 
 ii. 29 . . 404 
 
 V. 3, 1 
 
 33 
 
 i. 5, 4 . 
 
 135 
 
 iv. 36 . . 351 
 
 III. Inscriptions 
 
 Cenotaphia Pisana 
 li. 1. 12 . . . 339 
 
 Corpus Inscriptionum 
 Graecakum 
 
 2336 
 
 431 
 
 Corpus Inscriptionum 
 Latinarum 
 
 11. 
 iii. 
 
 V. 
 
 vi. 
 
 IX. 
 
 xii. 
 xiv. 
 
 D. 25. 
 
 163. 
 
 279. 
 
 312. 
 
 364. 
 
 428. 
 
 434. 
 
 452. 
 
 557. 
 
 ). 196 . 
 
 4248. 
 
 781 . 
 1622. 
 3925. 
 6574. 
 
 737. 
 
 266. 
 
 895. 
 
 930. 
 4416. 
 8588. 
 10213 . 
 2342. 
 5842. 
 
 375. 
 3608. 
 
 . 123 
 313 
 236 
 339 
 
 . 189 
 112 
 
 . 193 
 337 
 192 
 279 
 432 
 429 
 417 
 432 
 418 
 
 . 416 
 
 . 413 
 175 
 342 
 
 . 376 
 432 
 372 
 350 
 418 
 
 . 423 
 
 . 350 
 
 DiTTENBERGBR 
 
 Sylloge Inscriptionum 
 
 Graecarum 
 
 no. 240 
 
 285 
 
 Fragmentum 
 
 
 Lex Rubria de Gallia 
 
 Atestinum 
 
 
 CiSALPINA 
 
 10 
 
 385 
 
 c. 21 . 314, 315 
 
 16 
 
 450 
 
 22 . 314, 315 
 
 23 . . 314 
 
 Lex Acilia 
 
 
 Lex Salpensana 
 
 Repetundarum 
 
 
 
 
 c. xxvi. . . 189 
 
 12 . . . 
 
 203 
 
 
 72 . 
 
 239 
 
 Lex de Imperio 
 
 77 
 
 309 
 
 Vbspasiani 
 
 89 
 
 203 
 
 1. 1 . . .344 
 3 . . .348 
 
 Lex Julia 
 
 
 7 . . .348 
 
 Munioipalis 
 
 
 9 . . 375 
 
 8 . 
 
 203 
 
 10 . . 349 
 
 12 
 20 
 
 203 
 209 
 
 15 . . 345 
 17 . . 350, 378 
 
 24 
 
 208 
 
 22 . . . 350 
 
 29 
 
 32-46 
 46 . 
 
 209 
 209 
 209 
 
 monumentum 
 Ancyranum 
 
 68 
 
 209 
 
 {Latino) 
 
 73 . 
 
 232 
 
 i. 8-9. . . 338 
 
 84 
 
 315 
 
 ii. 5 . . . 339 
 
 85 
 
 438 
 
 8 . . .339 
 
 89 . 
 
 184 
 
 iii. 5 . . .356 
 
 92 
 
 184 
 
 39 . . . 396 
 
 104 
 
 185 
 
 vi. 13-15 . . 338 
 
 120 
 
 228 
 
 
 132 
 
 188 
 
 {Graeca) 
 
 135 . 
 145 . 
 
 438 
 222 
 
 iii. 6 . . .411 
 
 147 . . 222 
 
 227 
 
 Oeelli-Henzen 
 Inscriptionum Latin- 
 
 Lex Malaoitana 
 
 arum selectarmn coUectio 
 
 li. . 
 
 437 
 
 946 .. . 418 
 
 Iii. . 
 
 423 
 
 2922 . . .417 
 
INDEX OF AUTHORS CITED 
 
 483 
 
 3505 
 6396 
 6469 
 6519 
 6525 
 
 PAGE 
 
 . 417 
 . 416 
 . 405 
 . 410 
 . 416 
 
 S. C. DE Baochanahbus 
 
 1. 5 
 
 8 
 
 17 
 
 21 
 
 23 
 
 . 203 
 . 203 
 . 203 
 . 203 
 . 158 
 
 Tabula Bantina 
 1. 12 . . . 170 
 
 Tabula Lugdunbnsis 
 i. 28-35 . 85, 112, 113 
 
 "WiLMANNS 
 
 '.a Inscriptionum 
 Latinarum 
 
 PAOE 
 
 637 
 
 855 
 
 867 
 
 883 
 1120 
 1135 
 
 1145 1. 19 
 1184 
 1186 
 1189 
 1211 
 1215 
 1242 
 12496 
 1257 
 1259 
 1262 
 
 . 358 
 . 355 
 . 435 
 . 339 
 . 425 
 . 394 
 . 366 
 . 358 
 . 435 
 . 426 
 . 426 
 . 426 
 . 432 
 . 403 
 403, 417 
 . 416 
 . 416 
 
 
 PAGE 
 
 1267 
 
 . 435 
 
 1269 
 
 . 430 
 
 1272 
 
 . 417 
 
 1273 
 
 . 417 
 
 1275 
 
 403, 417 
 
 1278 
 
 . 417 
 
 1285 
 
 . 417 
 
 1286 
 
 . 420 
 
 1291 
 
 . 417 
 
 1293 
 
 . 417 
 
 1595 
 
 . 403 
 
 1622a 
 
 . 435 
 
 1639 
 
 . 405 
 
 1825 
 
 . 403 
 
 2110 
 
 404 
 
 2203 
 
 . 404 
 
 2841 
 
 , . 405 
 
 2844 
 
 . 426 
 
 2845 
 
 . 426 
 
 2858 
 
 . 405 
 
 2868 
 
 . 355 
 
 THE END 
 
 Printed in Great Britain by R. & E.. Clahk, Limited, Edinburgh-