CHAPTER XI

ITALY AND THE PROVINCES UNDER THE PRINCIPATE

§ 1. _The Organisation of Italy_

The chief feature of the organisation of Italy during the early Principate was the completion of the efforts made during the later Republic at incorporating its towns with Rome. The unity aimed at was chiefly that of jurisdiction, but we have no evidence of the steps which Augustus took to perfect the system of judicial centralisation, which had been devised at the close of the Republic.[2067] At the same time this Emperor adopted a device which, though its full details and effects are unknown, seemed to foreshadow the later principle of a close administrative unification of Italy with the capital. He divided the peninsula, exclusive of the immediate territory of Rome, into eleven regions (_regiones_).[2068] The immediate purpose contemplated by this division is unknown; but it laid the basis for subsequent distributions of many branches of Italian administration. The public domains, taxes paid by Roman citizens such as the _vicesima hereditatum_, and the results of the census, were organised or calculated by regions.[2069] They were employed, therefore, for work which necessarily fell on the central government, and this organisation so far implied no infringement on the communal autonomy of the towns. Such infringement came as a necessary result of the influence of the personality of the Princeps, which finally dominated Italy as effectually as it controlled Rome. But its coming was very gradual· The final change may be illustrated by the disappearance of the municipal _comitia_, the limitation of local jurisdiction, the loss of an independent system of local finance, and the control ultimately assumed by the central government of the actual administration of many of the Italian states.

Of these changes, the downfall of the _comitia_ is perhaps less remarkable than their continuance for so long a period after the assemblies had ceased to be a reality at Rome. A Latin colony in the time of Domitian still elects its magistrates at a _comitia curiata_,[2070] and the transference of this principle to Spain shows its prevalence at the time in Italy. The paucity of inscriptions of the early Principate which speak of elections by the only alternative body, the local Senate, is remarkable, and there are clear indications of the survival of the principle of popular election until the time of Antoninus Pius.[2071] It doubtless retained its hold on Italy as late as it did on the western provinces; its disappearance from the whole municipal sphere was the result of a new system of creating magistrates, the characteristics of which will be traced when we are dealing with the provinces of this period.[2072] The elective power of the assemblies no doubt survived all their administrative functions. The tendency even of the early Principate was to confine these to the local Senates, which were accounted more responsible bodies, and were far better instruments of the central controlling power of Rome.

The limitation of the local courts of law cannot be fully illustrated, but it is to some extent connected with the establishment of high individual authorities for jurisdiction in Italy, which begins with Hadrian. That Emperor divided Italy into four great circuits, and placed each of them under a _consularis_.[2073] These magistrates were replaced under Marcus Aurelius by _juridici_[2074] of praetorian rank, whose purely civil jurisdiction was finally concerned with that portion of Italy which was separated from the _urbica dioecesis_, the sphere of the praetor’s competence.[2075] These officials are mentioned only in connexion with extraordinary jurisdiction concerned with trusts, the nomination of guardians,[2076] or questions of administrative law, such as a controversy concerning the qualification for the decurionate.[2077] But, as extraordinary jurisdiction was gaining the upper hand of the _jus ordinarium_, and as such administrative questions would at an earlier period have been settled by the municipalities themselves,[2078] the powers of the _juridici_ may be regarded as a very real limitation of those of the local magistrates and senates. We have already seen that all the higher criminal jurisdiction of these towns had disappeared. Within the limit of a hundred miles from Rome such cognisance belonged to the praefect of the city, outside this limit to the praefect of the guard.[2079]

The financial difficulties under which many of the Italian towns laboured, invited a further system of imperial control. This took the form of the institution of _curatores rei publicae_, of senatorial or equestrian rank, whose existence is traceable from the close of the first century A.D., and who were given by the Princeps as extraordinary commissioners to reinvigorate the financial life of poverty-stricken municipalities.[2080]

But an even more vigorous control was impending, which was to bring Italy nearer to the condition of a province. The extraordinary commissioners known as _correctores_ (διορθωταί), whom the Principate often gave to free cities or districts in the provinces,[2081] were finally transferred to Italy.[2082] When its municipalities were placed under this tutelage, there was little more than a formal difference between their condition and that of the subject towns, and nothing but a more regular system of administration and the imposition of direct taxation was wanted to change Italy into a province. Both these changes were effected under the rule of Diocletian. Italy was, it is true, not divided into _provinciae_, but its districts were placed under regularly-appointed _correctores_, and its lands supplied revenues to the imperial court and to Rome. This climax of centralisation was probably the inevitable result of the imperial system and the external circumstances of the time. To the Princeps Italian and provincial problems were the same; Italy was not always the country in which the Emperor established his permanent residence, and, as the onset of the barbarians threatened even the Italian frontier, there was no possible reason why Italy should not pay its quota to the general taxation. But economic and social evils may have contributed to the imperial encroachments on Italian administration. The weaknesses which led to imperial control may have been those which the Emperors sought to cure. These were poverty and depopulation, and how earnestly they were grappled with may be seen by a glance at the system of state support known as the _alimentarium_. The leading idea of this institution is the endowment of a state or district with a fund which should give partial support to children, and by this means encourage production and relieve the responsibilities of parents or guardians. Such charitable efforts had, at an early period, been made by individuals;[2083] and from the reign of Nerva the state, as represented by the Princeps, took up the enterprise. Nerva’s example was followed by Trajan,[2084] who extended and organised the system, and similar efforts were made by Hadrian, Antoninus Pius, Marcus Aurelius, and Severus Alexander.[2085] The form usually taken by the endowment was an advance by the Princeps of funds which were deposited on good landed security at moderate interest, 5 or 2½ per cent. From this interest a certain number of boys and girls were to be supported, by the gift either of a certain amount of corn or of a sum of money—twelve, sixteen, or twenty sesterces—per month. This support was guaranteed until the boys had attained their eighteenth and the girls their fourteenth year.[2086] The details of this organisation were supervised in each locality by a _quaestor alimentorum_, while the general control of the funds over a large district was usually entrusted to the curators of the roads[2087] which ran through that domain, who sometimes bore the title _praefectus_, sometimes that of _curator alimentorum_.[2088] This wise method of charitable relief, which inspired an interest in agriculture while it relieved poverty and encouraged the growth of population, continued in force until the close of the Principate, and the _praefecti_, who administered this department, can be traced till the time of Diocletian.[2089]

§ 2. _The Organisation of the Provinces_

The imperial problem of the later Republic—the task of finding a frontier—occupied the unceasing energy of the early Principes, and in this, as in similar cases in the history of the world, delimitation involved extension. Sometimes the views as to the proper boundary altered, and advance was at times succeeded by retrogression. Thus Augustus sought the Elbe only to fall back on the Rhine, and Trajan adopted against the great eastern power a heroic policy of annexation which did not commend itself to his successor. In one instance, too—that of Britain—a forward movement was made which can scarcely be explained as the search for a scientific frontier. But, on the whole, the slow and ordered progress was one that sought not territories, but boundaries, and the movement necessitated expansion, whether it took the form of the annexation of the wild districts to the south of the Danube, or the gradual absorption of the kingdoms and principalities which intervened between the old Asiatic provinces and the Euphrates or the African dominions and the sea. The Danube, the Rhine, and the German Ocean; the Euphrates and the Syrian Desert; the Ethiopian kingdoms, the Sahara, and the Atlantic, were the limits within which the Principate was to strive to make the best of the means left by the victorious Republic for the government of the world. The Republic had indeed laid a solid foundation for ordered rule, and although we are accustomed to think of the Roman Empire chiefly in connexion with the three peaceful centuries of the Principate, it should not be forgotten that the work of the latter was chiefly the introduction, not of original ideas, but of those slight but decisive modifications which are sufficient to change a clumsy into a workable machine. A more effective, although far from perfect, system of military defence, a greater division of authority amongst the organs of government, a more careful estimate of provincial burdens, a competent although perhaps over-rigid civil service,—these were the immediate gifts of the Principate to the world. The results were comfort and peace; but a comfort that was too often divested of even local patriotism, and a peace that was singularly devoid of intellectual ideals. A universal citizenship was also amongst the hidden treasures of the Empire, but it was a gift conferred in proportion to its valuelessness, and the Princeps whose edict was to make the world a city was a calculating spendthrift bent only on increasing the taxes of his subjects. But, since the golden mean of Empire had yet to be found, we cannot blame the Principate for doing too much that which the Republic did too little. Every reaction is violent, and in this instance at least over-government was intended to be in the interest of the subject. The subject acclaimed it, at least in its initial stages,[2090] although his descendant was to find it a burden in comparison with which the yoke of the Republican proconsul would have seemed a trifle.

Augustus with characteristic modesty and discretion reserved his strength for the most difficult of the provinces—those on the frontier which demanded military occupation and unusual vigilance in administration—and thus created the distinction between Caesar’s provinces and those which were public (_publicae_) and were entrusted to the care of the Senate and people.[2091] There were occasional interchanges of provinces between the co-rulers. Thus Achaea and Macedonia were relinquished by the Senate in A.D. 15, but restored to it in A.D. 44,[2092] and Marcus Aurelius took over or surrendered districts according to the necessities of war.[2093] But in the middle of the Principate the Senate possessed but eleven,[2094] the Princeps twenty-one under regular governors,[2095] nine administered by procurators,[2096] one, Egypt, ruled by an equestrian praefect.

As in the Republic, the only true provincial _civitates_ were those which were _stipendiariae_. The free or free and allied communities were still technically exempt from the governor’s control. But the free cities were lessened in number and restricted in privileges. The supposed abuse of its self-governing powers by a _foederata civitas_ might cause the treaty to be rescinded and the state to be brought under direct provincial rule;[2097] while, even when _libertas_ was retained, its merits might be suspected, and the state might be placed under the financial tutelage of _curatores_ (λογισταί) or the administrative care of _correctores_ (διορθωταί) appointed by the Princeps.[2098] It is also certain that _libertas_ no longer conferred immunity from taxation. We know that, of the cities of Asia which are described as tributary in the reign of Tiberius,[2099] two, Magnesia ad Sipylum and Apollonidea, were _liberae_,[2100] while Byzantium, which had been in alliance with Rome during the Republic, also paid tribute in the reign of Claudius.[2101] This change, which is specially noticeable in the East, has been with great probability attributed to Pompeius. While granting or renewing charters and privileges, he reserved to Rome the right to tax,[2102] and thus dissociated the ideas of _libertas_ and _immunitas_, which had hitherto been inseparable. The new principle was so fully accepted by the Principate that even the possession of Latin rights could not have exempted a state from taxation,[2103] and the immunity of cities became more of an exceptional political privilege. Sometimes it took the form of exemption only from a special tax, such as the freedom from the port dues of Illyricum claimed by the state Tyras in Moesia.[2104] Less frequently it was a freedom from all external burdens, such as that enjoyed, on account of its historical associations, by the town of Ilium.[2105] But the favourite means of granting immunity to a state was to confer the right known as the _jus Italicum_—a right which implied that the members of the city were, like the inhabitants of Italy, in quiritarian ownership of their soil, and, therefore, exempt from the land-tax. This right generally accompanied the honorary designation of the town as a _colonia_, although the title might be conferred without the right,[2106] or be accompanied by only a partial immunity.[2107] Many states in Lusitania, Gaul, Germany, Syria, and Phoenicia were made _coloniae_ and granted the _jus Italicum_.[2108]

The two great problems in taxation which confronted the early Principate were the formation of an estimate of the resources of the Empire, and the apportionment of burdens by reference to the capacities of the various countries. Both tasks were undertaken vigorously by Augustus. To both belong his budget of the resources of the Empire,[2109] the geographical works undertaken under the auspices of Agrippa,[2110] and the comprehensive assessments made in various provinces. The right of making such assessments belonged to the Princeps,[2111] and seems not to have been limited to his own provinces, although it is to these that our definite information chiefly refers. The first known census of the kind was that undertaken in the three Gauls in 27 B.C.,[2112] which we find renewed in the years 14, 17, and 61 A.D.[2113] There is a trace of an Augustan census in Spain,[2114] and a similar task was undertaken in Syria.[2115] When these great preliminary estimates were over, provision had to be made for a periodical revision of the assessment. This was done under imperial control and for each province separately. A special imperial decree was issued, and under it the commissioner (_censor_, _censitor_, _ad census accipiendos_)[2116] made a renewed estimate, with the assistance of delegates, in the shape of equestrian officers and procurators, for the special communities or districts in the provinces subject to the census. Originally the chief officials were of senatorial rank, but after the end of the second century equestrian procurators were generally entrusted with the census[2117]—a circumstance which is probably to be accounted for by the fact that in the course of years the duty of making out the returns had become more automatic and therefore simpler.[2118] It is not known whether there were fixed dates for the regular recurrence of the census in each province;[2119] but there were taxes, such as the _tributum capitis_ in Syria, paid only by people of an age that fitted them for labour,[2120] which would have demanded renewed registration at somewhat short intervals; and in Egypt there was a cycle of fourteen years for the payment at least of the poll-tax, which goes back to the time of Tiberius and perhaps of Augustus.[2121] The careful nature of the estimate of the land-tax is shown by the official form of the schedule of returns (_forma censualis_), which has been preserved. This specified the community and _pagus_ in which the farm was situated, the names of two neighbours, and the character of the land assessed.[2122]

The taxes were either imposts on the land (_tributum soli_) or on the person (_tributum capitis_). The land-tax was in most provinces paid either in money or grain, more usually in the former; but in certain minor districts it was delivered wholly, or almost wholly, in kind. Cyrene sent its famous silphium, the Sanni in Pontus wax, and the Frisii of Germany the skins of oxen.[2123] The personal tax might be one on professions, income, or movable property. It was rarely a poll-tax pure and simple, although this is found in Egypt[2124] as a relic of the Ptolemaic organisation; amongst the Jews, when the δίδραχμον had been diverted from the Jewish temple to that of Jupiter Capitolinus;[2125] in Britain,[2126] where it would have been difficult to collect any other personal tax from the mass of the people; and in the tiny island of Tenos,[2127] whose poverty probably forbade any other method of assessment. It may, however, have existed in many provinces by the side of other personal taxes as a burden imposed on those whose property fell below a certain rating.

The collection of the chief imperial taxes was now direct, since the system of _decumae_ with the accompanying tax-farmers (_decumani_) had been abolished.[2128] But there seem to have been different degrees of directness in the method. A distinction is drawn between the _stipendium_ of the public and the _tributum_ of Caesar’s provinces,[2129] and as this distinction can scarcely be one of a method of taxation, it must be one based on the method of collection. Perhaps in the public provinces the taxes were still collected by the states themselves and paid by them to the quaestor, while in the imperial provinces the procurator came into direct contact with the tax-payer. But much was still left to the efforts of private companies, and the abolition of the _decumani_ was perhaps the sole infringement made on the vast operations of the _publicani_. The extent to which the system of contracting out was still employed may be illustrated by the facts that “companies of Roman knights” are said still to have gathered in the _pecuniae vectigales_—by which the _portoria_ are chiefly meant—and other _publici fructus_—the revenues from mines, salt-works, quarries, and the like—during the reign of Tiberius,[2130] that in the reign of Nero severe measures had to be taken to repress the exactions of the _publicani_,[2131] and that these state middlemen have a title devoted to them in the _Digest_ of Justinian.[2132] Even a tax which fell to an imperial treasury, such as the _vicesima hereditatum_, was collected by contractors in the reign of Trajan.[2133] The contracts were no longer leased by a central authority in Rome, but by the official who controlled the department with which the tax was concerned. In most cases it was an imperial procurator who leased the tax, and perhaps to some extent supervised its collection.[2134] The direct taxes were paid to the quaestor in the public provinces, and in the imperial were collected by the procurators, of whose functions and operations we have already spoken.[2135] In connexion with the fiscus of each province there was a bureau (_tabularium_)[2136] in which the assessments were kept.

The method of government in the public provinces underwent considerable modifications, but suffered little formal alteration. The tenure of office was still annual, and the regulation that a five years’ interval must elapse between home and foreign command,[2137] which had been neglected by Caesar,[2138] was revived by Augustus,[2139] but considerations of fitness and another method of determining seniority considerably interfered with the application of the latter principle. Some qualified candidates were set aside by the Senate either on its own motion or by the advice of the Emperor,[2140] and the _jus liberorum_ admitted some to the _sortitio_ in preference to others.[2141] All the governors of public provinces were now called proconsuls, whether they had previously held the consulship or not,[2142] in order to distinguish them from the legates of Caesar’s provinces, who all bore the title _pro praetore_. The two greatest of the public provinces, Asia and Africa, were always given to _consulares_, while the other governments might be held by men of praetorian rank. A definite allowance (_salarium_) was now given to the governor,[2143] which must have removed some of his temptation to extortion. Each proconsul was attended by lictors and had the other _insignia_ of his rank. But the _proconsulare imperium_ was in many respects a mere shadow of its former self. Its possessor did not wear the sword or the military dress,[2144] to show that his command was not a military one, and in deference to the full _proconsulare imperium_ possessed by the Princeps. It was an exception to this rule that until the time of the Emperor Gaius the legion in Africa was under the command of the governor of that province;[2145] but even here, where the employment of active military power was needed, the appointment of the proconsul was thrown practically on the Princeps.[2146] The governor was also hampered by assessors[2147] more carefully selected than the _legati_ of Republican times. The _legati proconsulis pro praetore_, three of whom were assigned to the higher class of provinces, such as Asia and Africa, and one to the lower, such as Sicily and Baetica, although nominally selected by the proconsuls themselves, had to be approved by the Princeps; and the fact that they bear a title which suggests the _imperium_ shows, that although they were still delegates of the governor, their jurisdiction was more definite and independent in the dioceses assigned them than it had been in Republican times. Even the quaestor now bears the title _quaestor pro praetore_,[2148] and exercises, besides his financial functions, a definite judicial charge—the kind of jurisdiction which was in the hands of the curule aedile at Rome.[2149] We have already shown the possibilities of imperial interference with the administration and jurisdiction of proconsular governors through the presence of procurators in their provinces, and through the tendencies which led to the Emperor’s becoming a court of appeal for the whole provincial world.[2150]

In his own provinces Caesar was the only possessor of the _proconsulate imperium_.[2151] Hence his governors were merely legates (_legati Caesaris pro praetore_). They were not, however, regarded as mere delegates. They exercised an independent jurisdiction, which they could delegate to their subordinates—a proceeding of which the mere mandatary is incapable.[2152] Their military command was delegated, but some at least of them exercised the power of life and death over the soldiers in their province.[2153] All the legates wore the military dress and sword,[2154] since all governed provinces in which legions were quartered. But even their military discretion was to some extent limited by the fact that the legions now had their own regular commanders (_legati legionum_), while their civil authority was lessened by the circumstances that the financial affairs of the province were chiefly in the hands of a procurator responsible to the Princeps or to a bureau, and that in many provinces after the time of Hadrian and the Antonines we find a special legate appointed for jurisdiction (_legatus juridicus_),[2155] who, though inferior to the governor in rank, was a delegate not of him but of the Princeps.

One of the secrets of the better administration of Caesar’s provinces was the length of time during which one of these legates might be kept in a single province. Thus in Tiberius’ reign Sabinus governed Moesia for twenty and Silius Gaul for seven years,[2156] while somewhat later Galba was in Spain for eight.[2157] In every case the tenure of such commands depended on the Emperor’s discretion,[2158] and the holders drew fixed salaries from the imperial treasury.[2159] To the higher class of provinces, such as Syria, _consulares_ were sent; those of a lower class, such as Aquitania and Galatia, might be governed by men of praetorian rank.

The sphere of imperial rule included a class of dependencies which had not yet become, or were not thought worthy of being, organised as definite provinces and placed under senatorial legates. They were governed by personal agents of Caesar, who were in this case known as _procuratores Caesaris pro legato_.[2160] Some of these districts, such as the three Alpine provinces, were comparatively small: but others, such as the Mauretanias, Thrace, Judaea,[2161] were of considerable size, and the presence of mere procurators in such countries must be accounted for by the fact that they were not important military stations but defended by some great command in a neighbouring province. The procurator was, indeed, sometimes under the partial control of the neighbouring imperial legate; thus Judaea was in some way attached to the larger province of Syria, and Pilate was deposed from office by Vitellius its governor.[2162] But even in this case the procurator is the delegate, not of the governor, but of the Princeps. Thus, when St. Paul appealed against the jurisdiction of Festus, the appeal was made directly to Caesar.

Anomalous methods of government were adopted for the two greatest military and strategic positions in the Empire—Germany, which was divided into an upper and a lower province, and Egypt. The two strips of land west of the Rhine, which contained the garrisons not merely of the river frontier but of Gaul, were not placed under the ordinary provincial legates. The two consular _legati_, not of the separate legions, but of the armies, were themselves the governors of the districts; they bore the title _pro praetore_,[2163] and, except when the supreme command over Gaul and the Germanies was assumed by a colleague of the Emperor,[2164] were not under the control of any governor of the neighbouring Gallic provinces. Egypt, in a sense a private domain of the Princeps,[2165] and, as the key of land and sea, guarded even from the approach of a man of senatorial rank,[2166] was entrusted to an equestrian praefect (_praefectus Aegypti_), who exercised the reality without the name of the _imperium_,[2167] wielded all the powers of a governor,[2168] and had an army under his control.

The Romanisation of the provinces was still effected by the insensible channels which had been operative during the Republic—social intercourse, commerce, and the forms of the provincial edict. But more conscious efforts in the same direction were made in the Western world. The foundation of municipalities of an Italian type, the encouragement given to a Latin-speaking foreigner to find a career in the imperial service, the state support given to Roman systems of education—all tended to make portions of provinces, such as Gaul and Spain, centres of as pure a Latinity as could be found in Italy itself. Even when the full _civitas_ was not at once conceded, preparation for it was made by the grant of Latin rights which were now conferred on whole provinces, such as Sicily, the Maritime Alps, and Spain,[2169] and made the dwellers in these regions participants in all the private rights of Roman law. The general tendency was to elevate the West at the expense of the East, or rather perhaps to decline the struggle with Hellenic civilisation, and to rest content with Romanising the barbarism of the lands that encircled Italy. In spite of this, the greatest triumphs of the legal genius were to be found in the East; the gift for theory seemed to be still peculiarly a property of the Greek or Oriental mind, and it was Asia, Phoenicia, and Syria that produced the names of Gaius, Ulpian, and Papinian. Such men had the signal advantage of comparing and even practising two perfected systems; for until the beginning of the third century, Graeco-Oriental forms were the common law of the Eastern half of the Empire, and the edict of Caracalla, which by the grant of the _civitas_ implied the future currency of Roman forms, must have created something like a legal revolution in this part of Rome’s dominions.[2170]

The omnipresence of Roman law was a fitting consequence and symbol of the even, harmonious, uneventful working of provincial life, and of the uniform machinery which was eliminating national characteristics and reducing all provinces to the same level of excellence or decadence. But, in spite of the highly organised character of provincial administration, it was the city-state (_civitas_) that was still the unit, and the character of its public life remained at all times the test of the effectiveness of the Roman system.

Amidst the brilliant variety of the urban life of the Empire, some uniformity had been secured even during the days of the Republic by Rome’s leaning to aristocratic types of organisation. But a slight modification of existing forms of constitution was all that was needed to bring the local machinery into harmony with that of the central government, and there was no effort made to create a uniform type of administration or to regard the provincial state as a mere municipality adapted only to serve the purposes of the imperial system. The Principate ushers in this latter tendency, but at first it is very gradual. In its initial stages it manifests itself in the light of a paternal interest, whether on the part of governors or Emperors, in the affairs of local corporations, in minute regulations as to the responsibilities of magistrates, the use of public funds, and the care of public property.[2171] Perhaps for a time such measures were beneficial; certainly for nearly two centuries, in spite of the fact that there is here and there observable a tendency to shirk municipal office as a burden,[2172] the vitality of the towns, fostered by peace and the large revenues of commerce, was strong enough to resist the enervating effects of this interference, and hundreds of inscriptions show us a wealth, a splendour, a generosity in endowment, and a thirst for municipal fame, that seem a sufficient reward for the untiring exertions of an anxious government. But this government finally came to lean on what it had fostered. The same tendencies, still very imperfectly understood, which changed professions into corporations, trades into guilds, and made even military service a hereditary burden, fastened on the towns, and the government sought to find in them a class which would be solely responsible for local and imperial duties. This was found ultimately in the local Senate—the order of _decuriones_ or _curiales_—which had always formed the pivot of municipal administration controlled or created by Rome, but which now tended to become sharply severed from the other classes in the communities, and, while solely endowed with the privileges of office, held these privileges at a tenure which it would gladly have surrendered. The legal texts of our period do not yet show the crushed and broken aristocracy of a later date; but they reveal the beginning of the movement which was to lead men to regard membership of the Senate as certain ruin, and to flee from office as though it were the plague. In the first place, the local magistracy was ceasing to be a stepping-stone to the Senate. There is a tendency to recruit the order through an _adlectio_ of otherwise unqualified members,[2173] a tendency which reveals an anxiety to preserve the maximum numbers of the order. This admission is effected by the board itself, and prepares us for the practice of the later Empire by which the order recruits itself from all qualified persons who are bound to serve. In another way also the earlier relation of magistrate to senate was being reversed. The principle of the earlier law, in accordance with which the previous possession of office is a necessary qualification for the _curia_,[2174] has been changed for one in accordance with which none but a decurion can be a magistrate. A definite grade of municipal nobility has been evolved, an official caste has been created, and the decurions are sharply severed from the Plebs.[2175]

Each class has its burdens, and, though the severest of these were ultimately to fall on the _curiales_, the municipal law of the _Digest_ calls on all members of the communes to do their duties to their state and to the Empire. Each class has its appropriate duties; to the decurions belong the higher branches of administration, but every category of citizens has its _munera congruentia_.[2176] The legal writers divide the burdens of public life into two categories. The _munera personalia_ are those that demand the activity of the person; the _munera patrimonii_ those that are incumbent on wealth.[2177] To the former belong the functions of public officials such as those concerned with the finances of the state, with the inspection of the market, roads, buildings and aqueducts, with the maintenance of the peace or the representation of the interests of the city. But municipal duties by no means exhausted the category of such burdens. The state finally saddled the municipalities with the returns for the census and the raising of the revenue in corn or money, and made the collectors responsible for any deficit.[2178] The cost of the imperial transport and post had also become a municipal burden.[2179] These last obligations introduce us to the idea of the patrimonial burdens, which existed wherever by law or custom expense was incurred by the individual undertaking them. There were few in which such expenditure was not incurred, and the policy of the dying Principate was to lay heavy imposts on capital, which increased in proportion to the diminution in number of the wealthier classes. When exertion was met with this reward it tended to relax, and a decaying agriculture and an enfeebled commerce were the results of the oppression of the government. Whatever the primary cause of these evils was, whether military, social, or economic, they were doubtless aggravated by the relentless system of imperial administration, which marshalled citizens as though they were soldiers, treated all classes as the fitting instruments of official life, and regarded the subject as existing for the Empire rather than the Empire for the subject.

§ 3. _The Worship of the Emperor_

One result of the discipline which we have described was doubtless to create a strong, though not a warm, imperial sentiment. A gentler bond of union amongst the provinces and of attachment to the imperial house was to be found in the carefully cultivated world-religion which expressed itself in the form of Caesar-worship.

The cult of the Emperor, although stimulated and encouraged by the imperial government, was by no means a purely artificial product. Had it offended against Roman or Italian sentiment, it would have been strangled in its birth; and had it met with no genuine response from the subject nations, coercion[2180] and rewards would probably have given it merely a precarious and transitory existence. The worship assumed two forms, neither of which was a strain on the religious beliefs of the age. In its application to the living Emperor, it was merely a reverence permitted to his spiritual personality, that _numen_ or _genius_, the abstract duplicate of man, the ever-present guardian-angel to whom, as realised in the self, the Roman had often drunk or prayed. If to the mind of the barbarian the genius and the self were still more truly one, the conception of the new worship was simpler but by no means less strong. The reverence paid to the dead Caesar was a still more natural effort of grateful piety, not unwelcome to a cultured society which accepted Euhemeristic explanations of the gods, and indigenous at least amongst the Greek-speaking and oriental portions of the Empire. In the provinces, too, all the sordid aspects of imperial humanity were removed; to the provincial mind Caesar was a potent and unseen power, a distant incarnation of wisdom and order, a being whose sway was far wider than that of any local god, whose ordinances penetrated to the ends of the earth, and in whose hands the safety and happiness of the human race were set.[2181] The idealism which to-day makes of a king something more than a man, had, in a less fastidious religious environment, made of the Roman Emperor a god, and even in the more prosaic West, in countries such as Gaul or Spain or Britain, where Caesar-worship required a certain amount of cultivation, we must suppose an undercurrent of genuine belief.

The first step taken in the inauguration of the new worship was a happy one. It was a graceful act to honour a predecessor, who had been the ruler of the Roman world, and might be regarded as a martyr in its cause, and Octavian permitted the consecration of a temple to _divus Julius_,[2182] who was regarded, from a sentimental if not from a legal point of view, as the founder of the new dynasty. His own worship the Emperor prohibited in Italy, and he declined an altar in the _curia_.[2183] But in the year 20 B.C. a temple dedicated to him under the name of Augustus rose at Panium in Palestine,[2184] and in the next year the form of dedication to “Roma and Augustus,” which associated his _numen_ with that of the city, and whose modesty secured his consent,[2185] began to spread through the provinces. A temple with this rite sprang up at Pergamum,[2186] and in 12 B.C. a similar worship, which replaced that of the native sun-god Lug, was established for the Gallic nobles at Lugdunum.[2187] An attempt was also made to consolidate the infant organisation of the new province of Germany by establishing an altar at the Oppidum Ubiorum (Köln) as the centre of its religious life.[2188] Rome itself could not wholly be deprived of a cult that was becoming universal, and in 8 B.C. a recognition of the divinity of Augustus was permitted in the only form which he would allow during his lifetime. His _genius_ was associated with the household gods or _Lares_ in the worship of the _vici_ of the capital.[2189] The movement spread through Italy. The old _magistri vicorum_ become the _magistri Larum_, and soon gain the title _magistri Augustales_. They are found in every part of Italy, and beyond it in Sardinia, Narbonensis, Spain, Dacia, and even Egypt.[2190] On the death of the first Princeps his complete deification was accorded by the Senate,[2191] and the recognition was followed by the permission to erect temples in the provinces,[2192] while private as well as public initiative fostered the cult of _divus Augustus_. The precedent set in the cases of the first two emperors had firmly established the practice of posthumous deification, and its denial to a Princeps was almost equivalent to the condemnation of his reign.[2193] Although the merits of Claudius as a divinity might be questioned, and Vespasian, with sceptical tolerance, regarded his own deification as an inevitable consequence of his position,[2194] yet by the close of the second century the virtues of the Antonines had made the worship of the deified Emperor a more genuine cult than ever, and a man was regarded as impious who had not some image of Marcus Aurelius in his house.[2195] This worship of the Caesars had two lasting effects on the social and political life of the Roman, Italian, and provincial worlds.

(1) It established a priestly aristocracy. On the death and deification of Augustus a college of _Sodales Augustales_ was created for Rome, consisting of twenty-one nobles, and containing in its list members of the imperial house.[2196] _Flamines Augustales_ held the same dignified position in their provinces or in their native towns, and were drawn from the aristocracies of the states. The _Flamen_ of the worship of Roma and Augustus, that had its centre at Narbo, wore the _praetexta_, was attended by a lictor, had a front seat at games, and the right of taking part in the deliberations of the local Senate. His wife, the _Flaminica_, was clothed on festal days in white or purple, and, like the _Flaminica Dialis_ at Rome, might not be compelled to take an oath.[2197] The lower and middle classes were not forgotten in the distribution of these religious honours. From the _magistri Augustales_, whom we have already mentioned, developed an _ordo Augustalium_, which existed before the death of Augustus both in Italy and the provinces, and the cult with which it was associated was partly of spontaneous origin, partly cultivated by the imperial government, and may in some cases have been founded by the municipal towns themselves. The _Augustales_ were not priests, like the _Flamines_ and _Sacerdotes_, but merely an order with certain _insignia_—the _praetexta_, the _fasces_, the _tribunal_—which they displayed in the performance of their official duties, and they have been compared to magistrates without secular magisterial functions.[2198] The form which the organisation assumed was the appointment of _sexviri_ or _seviri_, probably by the senate of the municipal town; after the year of service they pass into the order of _Augustales_.[2199] The order was composed mainly of freedmen—of a class, that is, whose birth excluded them from the public offices of their states, but who, forming as they did a large portion of the trading population, contributed, perhaps more than any other, to the economic vitality of the towns. The worship of Augustus, by giving them _insignia_ and certain proud moments in which they appeared to dazzling effect before the public eye, compensated to some extent for the loss of privileges which the law withheld.

(2) Caesar-worship was the only force that gave a kind of representative life to the provinces. Great provincial diets (_concilia_, _communia_, κοινά) made their appearance both in the Eastern and Western world. Asia had already dedicated temples to kings, proconsuls, and to the city of Rome;[2200] and in the Hellenic world the national assemblies which survived the Roman conquest may have suggested, or may even at times have been continued in, these new amphictyonic gatherings. The favour shown by the imperial government to this proof of loyalty soon led the West to follow the example of the East, and the establishment of the worship of Roma and Augustus at Lugdunum, by creating a _concilium_ for the three Gauls, was the prototype of a similar organisation in other European provinces. Eventually every province of the Empire seems to have evolved a diet of some kind, and even Britain, the least organised of Roman dependencies, possessed at Colchester a temple to the deified Claudius.[2201] The high-priests of the cult (_sacerdotes provinciae_, ἀρχιερεῖς) were chosen annually from the most distinguished families, and delegates (_legati_, σύνεδροι) from the various districts or states, which made up the province, were despatched to the yearly meetings (_concilia_, κοινά). These delegates elected the high-priests and voted the sums required for the purposes of the cult. But they felt themselves to be representatives of the province; they voiced its nationality and represented its collective interests as no other power did, and it would have been impossible except by force to limit their utterances to purely religious questions. This compulsion the government did not attempt. It permitted, perhaps encouraged, these delegates to make representations about the condition of the province,[2202] and even to utter complaints about the conduct of Roman officials.[2203] It is a pity that the imperial government did not do even more to preserve the fast-waning sense of nationality; but the value of what it did is proved by the fact that these assemblies and the dignified orders which they created survived into the Christian Empire. Titles such as Asiarch, Syriarch, Phoenicarch, derived from the high-priesthood of Caesar’s cult, were respected by Constantine’s legislation,[2204] and survived like ghosts of the pagan past to haunt for a time the life of a new œcumenical church which, through a fuller faith and a higher allegiance, had effected its triumph over the old.

APPENDIX I

THE TWO ASSEMBLIES OF THE TRIBES

The existence of a _comitia tributa populi_, as distinct from the _concilium plebis tributim_, was first demonstrated by Mommsen (_Römische Forschungen, Die patricisch-plebejischen Tributcomitien der Republik_). The chief lines of evidence on which the proof of the existence of this parliament rests are as follows:—

(i.) We have a series of passages which prove the continued distinction of the Populus and the Plebs and of patrician and plebeian magistrates, and which show that these magistrates could only summon the bodies of which they were respectively the representatives. These passages are:—

Festus p. 293 “Scita plebei appellantur ea, quae plebs suo suffragio sine patribus jussit, plebeio magistratu rogante.”

ib. p. 330 “Scitum populi (est, quod eum magistra)tus patricius (rogavit populusque suis suf)fragis jussit.... Plebes autem est (populus universus) praeter patricios.”

ib. p. 233 “cum plebes sine patri(bus a suo magistratu rogatur) quod plebes scivit, plebi(scitum est: plebs enim cum) appellatur, patrum com(munio excluditur).”

(ii.) There are abundant evidences of the early existence of a _comitia_ of the tribes:—

(_a_) The law of the Twelve Tables (451 B.C.) ordained, with respect to jurisdiction, “de capite civis nisi per maximum comitiatum ... ne ferunto” (Cic. _de Leg._ iii. 4, 11). The mention of the “greatest _comitia_” clearly implies the existence of a lesser one with judicial powers; and as this is not likely to have been the _comitia curiata_ of the period, it can hardly be any other assembly than the _comitia_ of the tribes.

(_b_) The quaestors were first elected by the people in 447 B.C. (Tac. _Ann._ xi 22), and in later times their appointment was made by a _comitia_ of the tribes (Cic. _ad Fam._ vii 30).

(_c_) The first legislative act of the people gathered _tributim_ is attributed to the year 357 B.C. (Liv. vii. 16 (consul) “legem novo exemplo ad Sutrium in castris tributim de vicensima eorum, qui manu mitterentur, tulit”).

The _comitia tributa populi_ was probably created between 471 B.C., the date at which the Plebs began to meet _tributim_, and 451, the date at which the existence of such an assembly is hinted at in the Twelve Tables.

(iii.) In the developed Republic we find an assembly meeting by tribes—

(_a_) which is presided over by magistrates of the people, e.g. by the consuls Manlius (Liv. vii. 16) and T. Quinctius Crispinus (Frontinus _de Aquaed._ 129), by the dictator Caesar (Cic. _ad Fam._ vii. 30), and by P. Clodius as curule aedile (Cic. _pro Sest._ 44, 95; _ad Q. fr._ 2, 3);

(_b_) which elects magistrates of the people, e.g. the quaestors (Cic. _ad Fam._ vii. 30 “comitiis quaestoriis institutis ... ille (Caesar) ... qui comitiis tributis esset auspicatus”) and the curule aediles (Gell. vii. 9 “[Cn. Flavium] pro tribu aedilem curulem renuntiaverunt”);

(_c_) which legislates. This legislative power is shown by the _lex Quinctia de aquaeductibus_ of 9 B.C. (Frontinus _de Aquaed._ 129);

(_d_) and exercises judicial power. This judicial power is shown in the trial of Milo for _vis_ in 56 B.C. (Cic. _pro Sest._ 44, 95; _ad Q. fr._ 2, 3). The prosecutor was a curule aedile, and the trial took place in the Forum (“ejectus de rostris Clodius,” l.c. § 2).

Perhaps the most striking demonstration of the existence of this assembly is contained in the prescription to the _lex Quinctia de aquaeductibus_ (Frontinus l.c.), which runs as follows:—

“T. Quinctius Crispinus consul populum jure rogavit populusque jure scivit in foro pro rostris aedis divi Julii pr(idie) [k.] Julias. Tribus Sergia principium fuit, pro tribu Sex.... L. f. Virro [primus scivit].”

Here we find an assembly of the Populus, presided over by a magistrate of the people, meeting in the Forum and voting by tribes. It can, therefore, be none other than a _comitia tributa populi_.

Although the formal difference between this assembly and the _concilium plebis tributim_ was great—the one being summoned by magistrates of the people, the other by plebeian magistrates; the one electing to popular, the other to plebeian offices; the one passing _leges_, the other _plebiscita_—the material difference between the two bodies was small. This consisted in the exclusion of Patricians from plebeian gatherings. When the consul or praetor summoned the tribes, the members of the few patrician families could attend; when the tribune summoned the tribes, these members were bound to keep away.

APPENDIX II

A LIMITATION OF THE TRIBUNATE IN THE REIGN OF NERO

Tacitus in the _Annals_ (xiii. 28, 2), in describing certain limitations on the powers of tribunes and aediles which were introduced in the year 56 A.D., mentions one respecting the tribunate, the nature of which has never yet been explained. He expresses it in the words “prohibiti tribuni jus praetorum et consulum praeripere, aut vocare ex Italia cum quibus lege agi posset”—“the tribunes were forbidden to usurp the authority of praetors and consuls, or to summon out of Italy persons liable to legal proceedings.” It seems generally to be agreed that the _aut_ here is conjunctive, not disjunctive, i.e. that there is the closest connexion between “jus praetorum et consulum praeripere” and “vocare ex Italia,” and it seems that this must be the case; for Tacitus, vague as his references are in this chapter, could never have referred to anything so indeterminate as a “usurpation of the authority of praetors and consuls,” without some specification of the sphere or extent of this usurpation. I shall, therefore, assume that the second clause is explanatory of the first, and that the “summons from Italy” in some way defines the “usurpation”—although, as will be seen, this assumption is by no means necessary to my main argument, which will centre round the expression “vocare ex Italia.”

The remarks of commentators on this passage have been for the most part confined to expressions of bewilderment at the constitutional anomalies it displays. They make the inevitable comment that the tribune had properly no right of _vocatio_, although he sometimes exercised it (Varro ap. Gell. xiii. 12), and that, if even he possessed this right, it ought not to have been exercised outside the city walls. The only positive fact to be elicited from such statements is that the _vocatio_ here referred to is some kind of personal summons; who is summoned or for what purpose are questions which they seem to regard as incapable of an answer. The opinion of an eminent writer on Roman Law, who attempts to push his analysis deeper than this, exhibits only the desperate nature of the means which have to be applied to elicit a meaning from the passage. Karlowa (_Röm. Rechtsgesch._ i. p. 530) suggests that the tribunes had allowed accused persons to escape summonses in criminal trials which were to take place before the Senate—the initiation of such trials belonging properly only to the consuls and praetors. He does not seem to feel the obstacles that beset the path to this conclusion. He has to take _lege agere_ in the unusual sense of the legal fulfilment of a penal law; he does not show why Tacitus should have written “vocare ex Italia” in place of the more natural “vocare a senatu”; he fails to remember that the tribunician intercession in a criminal trial before the Senate was, even in the reign of Tiberius, becoming a power of pardon vested in the Princeps, and that its use by an ordinary tribune might bring death to the rash interceder (Tac. _Ann._ vi. 47; cf. xvi 26).

To discover the true sense of the passage we must seek for some sphere in which the tribunician veto continued unimpaired during the Principate; but, before doing this, we must ask whether the words used by Tacitus offer any suggestions of such a sphere. It is possible to translate the words “vocare ex Italia” as meaning “to summon from any part of Italy,” “to summon, i.e., from Rome and Italy”; but I venture to think that _ex Italia_ excludes the idea of Rome, and that the meaning of the words is “to summon from a municipal town of Italy to Rome.” On what grounds such a summons might be made is shown by the words “cum quibus lege agi posset.” The sphere of the summons is civil jurisdiction in the _municipia_ as divided between the Roman and the local authorities by statute on the settlement which gradually followed the close of the social war—a settlement known to us chiefly through the _lex Rubria_. The whole sentence, if literally though somewhat clumsily translated, would state that “the tribunes were prohibited from summoning litigants from an Italian town in cases where a civil action at law would have been possible in that town.”

On this hypothesis, the sphere of the tribune’s power referred to is the very familiar one of the veto on appeal in civil jurisdiction. How frequent the _appellatio_ to the tribunes in matters of civil jurisdiction was during the later Republic is shown by the fact that, out of the four private orations of Cicero, two—those for Quinctius and for Tullius—record the use of this appeal (Cic. _pro Quinct._ 7, 29; _pro Tullio_ 16, 38, 39); and that this appellate cognisance continued during the Principate is shown by the obvious interpretation of the well-known lines of Juvenal (vii. 228)—

Rara tamen merces quae cognitione tribuni Non egeat—

words which almost certainly mean “it is seldom that such _merces_ does not lead to a court of appeal.”

It may seem strange that the veto of these purely city magistrates should be thought of in connexion with municipal jurisdiction, until we remember the anomalous nature of the settlement made after the social war. By that settlement jurisdiction in Italy is a mere annexe to jurisdiction in Rome; technically it is jurisdiction in Rome, as is shown by Gaius (iv. 103-105), who recognises no interval between the jurisdiction of law _intra primum miliarium_ and the jurisdiction of the _imperium_ in the provinces. The praetor’s formula and the praetor’s writ run through the whole of Italy, although the praetor himself cannot quit Rome for more than ten days during his year of office (Cic. _Phil._ ii. 13, 31); and, if the appellate power of the tribune was to be preserved, it had to be regarded as coextensive with the _imperium_, of the magistrate whom he vetoed. The intercession of the tribune in municipal jurisdiction required no creation by law; it was still the veto of one city magistrate by another within the walls of Rome. If even the tribune’s ordinances and his _coercitio_ were valid without the walls, it could be explained in accordance with the prevailing fiction; but the supposition of such an extension is not absolutely necessary, as the following pictures of what probably took place in a conflict between the central and the local courts will show.

Suppose Aulus Agerius brings an action against Numerius Negidius in the town of Arpinum. The local magistrate decides to take the case. Numerius Negidius denies the competence of the court and appeals; to whom? In the first instance, probably to the colleague of the local magistrate, for the _lex Rubria_ (c. xx.) forbids the intercession only in the case where the local court is admittedly competent. This colleague pronounces the veto, the _judicium_ is quashed; all that the local magistrate can now do is to compel the parties to enter into a _vadimonium_ to appear before the praetor, and the case moves to Rome. But supposing, when it has got there, that the praetor decides that it was really within the competence of the municipal magistrate and issues an order that it shall go back? Now Numerius appeals to the tribune. The veto is issued and, if the case is to be tried at all, the praetor is bound to take it.

We can also imagine a case with the same preliminaries in which Numerius appeals to the colleague of the local magistrate against the competence of the local court, but in which this colleague declines to interfere. Is Numerius left stranded? Unquestionably there must have been in such a case a further appeal to Rome, whether to the praetor or perhaps, in this case, to his higher colleague the consul. But the praetor or consul now decides against Numerius. The appeal is made to the tribune, and the decree of the consul or praetor may be quashed. The case, if it is to be tried at all, must be tried at Rome.

In both these instances the tribune pronounces his veto within the city, and yet in both, if his decision is improper, his position is one of “vocare ex Italia cum quibus lege agi posset.” In both cases it is not a true use of magisterial _vocatio_, and thus one of the difficulties discovered by commentators in this passage is removed; it is simply an illustration of the positive effects of a negative power. Just as the tribune can by a persistent veto force the praetor to alter his formula (Cic. _Acad. Prior._ ii. 30, 97; _pro Tullio_ 16, 38), so by a persistent denial of the praetor’s orders to the local magistrate he can force the praetor to judge. We do not know the method by which the positive effect of the veto was in this case secured, but it is clear that some means must have been provided for having a municipal action tried at Rome when the municipal court had been declared incompetent.

But, apart from the procedure springing from these rigid rules of competence, there is some evidence of a discretionary power of what is called _Romam revocatio_, which was exercised and abused by magistrates towards the close of the Republic. The _Fragmentum Atestinum_ (perhaps a part of the _lex Rubria_) enacts (l. 16 sq.) with reference to municipal jurisdiction—“ejus rei pequn[_iaeve_] quo magis privato Romae revocatio sit ... _ex hac lege nihilum rogatur_,” i.e. this law does not permit (or imply) a _revocatio_ to Rome in the specified cases. We do not know what magistrate effected this _revocatio_. With respect to criminal jurisdiction in the provinces, it was the duty of the consuls (Cic. _in Verr._ i. 33, 84); and, if they exercised this power in civil jurisdiction as well, the _jus consulum praeripere_ of our passage may refer to tribunician interference with this consular prerogative. It may be worth noting that Plutarch (_Caes._ 4) associates the power with the tribunes; his narrative of this trial of P. Antonius is almost unquestionably wrong, but it may be taken to show that in his belief (i.e. in a belief current during the Principate) the tribunes had something to do with summoning cases to Rome.

Hitherto we have been dealing with the praetor and the _judicia ordinaria_. Is it possible that the tribune also interfered with the extraordinary jurisdiction created daring the Principate, and thus with the judicial powers of the consuls? The consular jurisdiction in _fideicommissa_ had been given to praetors by Claudius (_Dig._ 1, 2, 2, 32), but not the whole of it. Quintilian shows that in greater matters it still belonged to the former (_Inst. Or._ iii. 6, 70 “non debes apud praetorem petere fideicommissum sed apud consules, major enim praetoria cognitione summa est”). If the consuls tried the case when the _fideicommissum_ was very large and the praetors when it was smaller, it is not altogether impossible that the municipal magistrates might have tried local cases when the sum, which was the subject of the trust, was insignificant It is thus possible that questions of the competence of local and Roman magistrates may have cropped up in reference to this question; although I should prefer to explain the _jus consulum praeripere_ of Tacitus on the already mentioned hypotheses of some consular right of _vocatio_ or _revocatio_ in matters of ordinary jurisdiction.

Much must remain obscure; we cannot get at the details of the procedure. All that we can do is to show that there is evidence for the tribune’s interference with the rights of magistrates in matters of municipal jurisdiction, and to suggest methods of interference. Nor can we determine the precise limitations of his authority introduced by the change of A.D. 56. But it clearly took from the tribune the final decision as to when a civil case should be summoned from a municipal town to Rome. Either his _intercessio_ in this matter of municipal jurisdiction was abolished, or his veto was made purely suspensory. In this very chapter of Tacitus we find that the enforcement of the tribunician _multa_ is subjected to the decision of the consul. Similarly, with reference to the power which we have discussed, the urban praetor or the consul may have been declared absolutely competent to decide, after cognisance, when a case should be tried in the local courts and when it should be reserved for the tribunals at Rome.

FOOTNOTES

[1] _Pagus_ (connected etymologically with πήγνυμι, _pago_, _pango_) implies the idea of “foundation” or “settlement.”

[2] Cf. Liv. ii. 62 “Incendiis deinde non villarum modo, sed etiam vicorum, quibus frequenter habitabatur, Sabini exciti.”

[3] So Servius Tullius is said, according to one account, to have divided the territory of Rome into twenty-six _pagi_. _Pagus_ is δῆμος in Greek (Festus p. 72), but this proves little as to its origin; it is the _pagus_ as part of a state that is thus translated. The δῆμος or δᾶμος in Greece had often been (as in Elis) a self-existent community.

[4] Liv. ii. 16. Yet even here the _Claudia gens_ is represented as expelled from a _civitas_.

[5] The ancients derived Palatine from the _balare_ or _palare_ of cattle (Festus p. 220) or from the shepherd’s god Pales (Solinus i. 15). It is perhaps derived from the root _pa_ (_pasco_). See O. Gilbert _Geschichte u. Topographie der Stadt Rom in Altertum_ i. p. 17.

[6] Tac. _Ann._ xii. 24.

[7] This tendency is best exhibited in Richter’s map showing the extension of Rome (Baumeister _Denkmäler_ art. “Rom” Karte v.).

[8] Festus pp. 340, 341. See Gilbert _Topographie_ i. pp. 38, 162.

[9] Varro _L.L._ v. 45 ff.

[10] i.e. in the four city tribes—_Palatina_ (Palatine, Cermalus, Velia), _Esquilina_ (Oppius, Cispius, Fagutal), _Suburana_ or _Sucusana_ (Coelius, Subura), _Collina_ (Quirinalis, Viminalis—a region outside the old Septimontium). See Belot _Histoire des Chevaliers Romains_ i. p. 401.

[11] The Sabine origin of the Tities rested perhaps on the Sabine _sacra_ of the _sodales Titii_ (Tac. _Ann._ i. 54). Cf. the Thracian origin ascribed to the Eumolpidae at Athens on account of the character of their cult.

[12] Cic. _de Rep._ ii. 8, 14 “populumque et suo et Tatii nomine et Lucumonis, qui Romuli socius in Sabino proelio occiderat, in tribus tris ... discripserat.”

[13] e.g. the manner in which the Ionic tribe-names were imposed at Athens after their primitive signification had been lost.

[14] Cf. Niese _Grundriss der röm. Gesch._ pp. 20 sq.

[15] Cincius ap. Festum p. 241 “Patricios Cincius ait in libro de comitiis eos appellari solitos, qui nunc ingenui vocentur.” Cf. Liv. x. 8 (300 B.C.; from the speech of Decius Mus) § 9 “Semper ista audita sunt eadem, penes vos auspicia esse, vos solos gentem habere, vos solos justum imperium et auspicium domi militiaeque”; § 10 “en unquam fando audistis, patricios primo esse factos non de coelo demissos sed qui patrem ciere possent, id est nihil ultra quam ingenuos?”

[16] Mr. Strachan-Davidson remarks (Smith _Dict. of Antiq._ ii. p. 354) that, on the evolution of the rights of the plebeians, these too should have been _patricii_, but that the word _patricius_ survived as a “token of an arrested development.”

[17] _Plebs_ is connected with the root which appears in _compleo_, _impleo_, πλῆυος.

[18] Liv. i. 28 “populum omnem Albanum Romam traducere in animo est, civitatem dare plebi, primores in patres legere.” Dionysius (ii. 35) represents the people of Caenina and Antemnae as being, after their subjection, enrolled εἰς φυλὰς καὶ φράτρας.

[19] Cf. Dionysius’ account of Romulus’ institution of clientship (ii. 9 παρακαταθήκας δὲ ἔδωκε τοῖς πατρικίοις τοὺς δημοτικούς, ἐπίτρεψας ἑκάστῳ ... ὃν αὐτὸς ἐβούλετο νέμειν προστάτην ... πατρωνείαν ὀνομάσας τὴν προστασίαν).

[20] The _jus commercii_ has been read into the relations of Rome with Carthage as depicted in Polybius’ second treaty [Polyb. iii. 24, 12 ἐν Σικελίᾳ, ἧς Καρχηδόνιοι ἐπάρχουσι, καὶ ἐν Καρχηδόνι πάντα καὶ ποιείτω καὶ πωλείτω (the Roman) ὅσα καὶ τῷ πολίτῃ (the Carthaginian) ἔξεστιν]. But jurisdiction here may have been the work of some international court, and the _jus commercii_, without the _jus exulandi_, would hardly have made a foreign immigrant a citizen of Rome.

[21] Cicero shows that there was a controversy whether _applicatio_ was consistent with _exilium_ (_de Orat._ i. 39, 177), “Quid? quod item in centumvirali judicio certatum esse accepimus, qui Romam in exilium venisset, cui Romae exulare jus esset, si se ad aliquem quasi patronum applicavisset intestatoque esset mortuus, nonne in ea causa jus applicationis, obscurum sane et ignotum, patefactum in judicio atque illustratum est a patrono?”

[22] Zonaras vii. 15. P. Clodius first tried this method; when it was opposed he resorted to the artifice of adoption. Courtly writers imagined a _transitio_ for the plebeian Octavii, Suet. _Aug._ 2 “Ea gens a Tarquinio Prisco rege inter minores gentes adlecta ... mox a Servio Tullio in patricias transducta, procedente tempore ad plebem se contulit.”

[23] Liv. ii. 16 (504 B.C.) “Attus Clausus (driven out from Regillum) magna clientium comitatus manu Romam transfugit. His civitas data agerque trans Anienem ... Appius inter patres (i.e. the Senate) lectus haud ita multo post in principum dignationem pervenit.” Cf. Suet. _Tib._ 1.

[24] Savigny _Recht des Besitzes_ (7th ed.) p. 202. On the general condition of the client see Ihering _Geist des röm. Rechts_ i. p. 237.

[25] Dionys. ii. 9, 10.

[26] ἐξηγεῖσθαι τὰ δίκαια ... δίκας λαγχάνειν ... τοῖς ἐγκαλοῦσιν ὑπέχειν (Dionys. ii. 10). If representation in the civil courts is meant, it must have resembled that of the _paterfamilias_, who sues in his own right, for procuratory was unknown in early Roman procedure (Just. _Inst._ iv. 10 “cum olim in usu fuisset alterius nomine agere non posse”).

[27] Verg. _Aen._ vi. 609 “fraus innexa clienti.” Cf. Servius ad loc.

[28] Gell. v. 13 “Conveniebat ... ex moribus populi Romani primum juxta parentes locum tenere pupillos debere, fidei tutelaeque nostrae creditos; secundum eos proximum locum clientes habere, qui sese itidem in fidem patrociniumque nostrum dediderunt.” The third place was filled by _hospites_, the fourth by _cognati_ and _adfines_.

[29] Liv. ii. 56.

[30] Suet. _Claud._ 24 “(Claudius) Appium Caecum censorem (312 B.C.) ... libertinorum filios in senatum allegisse docuit; ignarus temporibus Appii (312-280 B.C.) et deinceps aliquamdiu ‘libertinos’ dictos, non ipsos qui manu emitterentur, sed ingenuos ex his procreates.”

[31] Plut. _Mar._ 5.

[32] Festus p. 94 “gentilis dicitur ex eodem genere ortus et (?) is qui simili nomine appellatur.”

[33] p. 5.

[34] Cic. _Top._ 6, 29 “Gentiles sunt inter se, qui eodem nomine sunt; qui ab ingenuis oriundi sunt; quorum majorum nemo servitutem servivit; qui capite non sunt deminuti.”

[35] The test is illustrated by a controversy between the patrician Claudii and the plebeian Claudii Marcelli, Cic. _de Orat._ i. 39, 176 “Quid? qua de re inter Marcellos et Claudios patricios centumviri judicarunt, cum Marcelli ab liberti filio stirpe, Claudii patricii ejusdem hominis hereditatem gente ad se rediisse dicerent, nonne in ea causa fuit oratoribus de toto stirpis et gentilitatis jure dicendum.” Suetonius (_Tib._ 1) says of the clan of the Claudii Marcelli, as compared with their patrician namesakes, “nec potentia minor nec dignitate.”

[36] Liv. x. 8, quoted p. 5.

[37] p. 5.

[38] Cic. _in Verr._ i. 45, 115 “Minucius quidam mortuus est ante istum (Verrem) praetorem; ejus testamentum erat nullum. Lege hereditas ad gentem Minuciam veniebat”; _de Leg._ ii. 22, 55 “Jam tanta religio est sepulchrorum, ut extra sacra et gentem inferri fas negent esse; idque apud majores nostros A. Torquatus in gente Popilia judicavit.”

[39] The theory of the artificial origin of the _gens_ is based on the symmetrical figures given by tradition. The full numbers of the early _gentes_ are given as 300; these are symmetrically divided, ten into each of the thirty _curiae_, as the _curiae_ are divided into the three original tribes. Hence Niebuhr (_Hist. Rome_ i. p. 319) says, “The numerical scale of the _gentes_ is an irrefragable proof that they were not more ancient than the constitution, but corporations formed by a legislator in harmony with the rest of his scheme.”

[40] Niebuhr op. cit. p. 333; from Laelius Felix (ap. Gell. xv. 27) “Cum ex generibus hominum suffragium feratur, curiata comitia esse” (_genus_ because the assembly came to include Plebeians, some of whom had no _gentes_).

[41] Cic. _ad Fam._ ix. 21, 2.

[42] Momms. _Staatsr._ iii. p. 31.

[43] Cic. _de Rep._ ii. 20, 35 “(L. Tarquinius) duplicavit illum pristinum patrum numerum; et antiquos patres majorum gentium appellavit, quos priores sententiam rogabat; a se ascitos minorum”; Liv. i. 35 “(Tarquinius) centum in patres legit; qui deinde minorum gentium sunt appellati.”

[44] p. 3.

[45] The _gentes minores_ are sometimes identified with the _gentes_ of the last admitted of these tribes, the _Luceres_ (Ortolan _Hist. of Roman Law_ i. § 33).

[46] Momms. _Hist. of Rome_ bk. i. ch. v.

[47] Liv. i. 30; Dionys. iii. 29.

[48] Dionys. ii. 46.

[49] Liv. iv. 4 “nobilitatem vestram per cooptationem in patres habetis”; Suet. _Tib._ 1 “gens Claudia in patricios cooptata.” So Servius and Numa are said to have been transferred by the Populus from the ranks of the δῆμος to those of the πατρίκιοι.

[50] As is implied in Suet. _Aug._ 2 (quoted p. 7).

[51] Dionys. v. 13.

[52] Liv. ii. 2 “Brutus ad populum tulit ut omnes Tarquiniae gentis exsules essent”; Varro ap. Non. p. 222 “omnes Tarquinios ejicerent, ne quam reditionis per gentilitatem spem haberent.”

[53] Suet _Tib._ 1 “Patricia gens Claudia ... orta est ex Regillis, oppido Sabinorum ... post reges exactos sexto fere anno, in patricias cooptata. Agrum insuper trans Anienem clientibus, locumque sibi ad sepulturam sub Capitolio, publice accepit.” Cf. Liv. ii. 16 (cited p. 7).

[54] Dionys. v. 40.

[55] ib. ii. 7.

[56] Cic. _de Rep._ ii. 14, 26.

[57] Momms. _Staatsr._ iii. p. 23.

[58] Varro _R.R._ i. 10, 2; cf. Plin. _H.N._ xix. 4.

[59] Festus p. 53 “Centuriatus ager in ducena jugera definitus, quia Romulus centenis civibus ducena jugera tribuit.”

[60] It is possible, however, that _manus_ in such expressions is merely the symbol of power.

[61] “Si adgnatus nec escit gentiles familiam habento.”

[62] Suet. _Caes._ 1, of Caesar’s refusal to divorce Cornelia; as a consequence he was “uxoris dote, et gentiliciis haereditatibus multatus.”

[63] p. 10.

[64] “Si furiosus escit, ast ei custos nec escit, adgnatum gentiliumque in eo pecuniaque ejus potestas esto.”

[65] Cic. _pro Domo_ 13, 35.

[66] Suet. _Tib._ 1.

[67] Cic. _Phil._ i. 13, 32.

[68] Maine _Ancient Law_ pp. 6, 27.

[69] Cic. _pro Domo_ 13, 35 “Quas adoptiones (i.e. legal ones) ... hereditates nominis, pecuniae, sacrorum secutae sunt. Tu ... neque amissis sacris paternis in haec adoptiva venisti. Ita perturbatis sacris, contaminatis gentibus, et quam deseruisti et quam polluisti, etc.”; _de Leg._ ii. 19, 48 “haec jura pontificum auctoritate consecuta sunt, ut ne morte patris familias sacrorum memoria occideret, iis essent ea adjuncta, ad quos ejusdem morte pecunia venerit.” The transmission was thus a part of _jus pontificium_, not of _jus civile_. Cf. Serv. in _Aen._ ii. 156.

[70] Cf. the story of Verginia in Liv. x. 23 (296 B.C.) “Verginiam Auli filiam patriciam plebeio nuptam L. Volumnio consuli matronae, quod e patribus enupsisset, sacris arcuerant.” She then founds an altar to “Pudicitia plebeia,” in imitation of that to “Pudicitia patricia.”

[71] ἀνδρὶ κοινωνὸν ἁπάντων χρημάτων τε καὶ ἱερῶν (Dionys. ii. 25).

[72] Plut. _Qu. Rom._ 30 Διὰ τί τὴν νὺμφην εἰσάγοντες λέγειν κελεύουσιν· Ὃπου σὺ Γαΐος ἐγὼ Γαΐα;

[73] e.g. a testamentary adoption by a public act in the _comitia calata_.

[74] _Familia_ is etymologically a “household.” Cf. Sanskr. _dhâ_ “to settle,” _dhâman_ “settlement.”

[75] The original term was, perhaps, _manus_ signifying “power” (see p. 32), but this word came in course of time to be restricted to the control over the wife who had become a member of the _familia_.

[76] Plutarch (_Rom._ 22) quotes a law of Romulus allowing the divorce of the wife ἐπὶ φαρμακείᾳ τέκνων ἢ κλειδῶν ὑποβίλῃ καὶ μοιχευθεῖσαν.

[77] Dionys. ii. 15.

[78] This _jus noxae dationis_ first disappears finally in the law of Justinian (_Inst._ iv. 8, 7; _Dig._ 43, 29, 3, 4). Before its abolition a modification had been introduced by the rule that, when the child had acquired an equivalent for the damage he had caused (_quantum damni dedit_), the owner should be forced to manumit him.

[79] Even by Constantine the sale of new-born children (_sanguinolenti_) was permitted, but only _propter nimiam paupertatem_ (_Cod._ 4, 43, 2).

[80] “Pater si filium ter venum duuit, filius a patre liber esto.” It has been thought, however, that by the time of the Twelve Tables the sale had become merely fictitious.

[81] This _vindicatio filii_ was in later Roman law replaced by a writ issued by the praetor (_interdictum de liberis exhibendis_), the effects of which were like that of Habeas Corpus.

[82] Dionys. ii. 26, 27.

[83] Gell. v. 19, 9.

[84] Hadrian punished the killing of a son with deportation (_Dig._ 48, 8, 5); Constantine declared it _parricidium_.

[85] Instances are given in Voigt (_Zwölf Tafeln_ ii 94). M. Fabius Buteo (223-218 B.C.) put his son to death as a punishment for theft (Oros. iv. 13), and a certain Pontius Aufidianus his daughter for immorality (Val. Max. vi. 1, 3); there are also instances of banishment inflicted by the father, presumably under the threat of inflicting the death penalty if the children returned.

[86] We may cite two instances lying at the very extremes of Republican history, the semi-mythical one of L. Junius Brutus in 509 (Plut. _Popl._ 6, 7), and the historical one of A. Fulvius Nobilior, who in 63 B.C. put his son to death for partnership in the Catilinarian conspiracy (Sall. _Cat._ 39).

[87] Modern writers are inclined to reject the appeal made to the _sexus fragilitas_ by the Roman jurists, and to believe that the original motive lay in the desire to keep the property of the family together (cf. Czyhlarz _Inst._ p. 275); but, as this motive did not operate in the case of sons, it is difficult to see why it should have done so in the case of the wife or daughters, apart from a belief in the incapability of women to defend their own claims. For the motive underlying the _tutela mulierum_ see p. 31.

[88] p. 16.

[89] Ulp. _Reg._ 12, 2 “Lex xii. Tab. prodigum, cui bonis interdictum est, in curatione jubet esse agnatorum”; cf. Ulp. in _Dig._ 27, 10, 1 “Lege xii. Tab. prodigo interdicitur bonorum suorum administratio.” There can be no doubt of the antiquity of this interdiction of the “prodigus,” proceeding as it does from the theory that the property belongs to the family rather than to its head; but from what authority it proceeded in the earliest period of Roman history is uncertain.

[90] See the account in Val. Max. v. 8, 2 (p. 23) “adhibito propinquoram et amicoram consilio.”

[91] Val. Max. ii. 9, 2 “M. Val. Maximus et C. Junius Brutus Bubulcus censores ... L. Annium senatu moverunt, quod, quam virginem in matrimonium duxerat, repudiasset, nullo amicorum in consilio adhibito.” See Greenidge _Infamia in Roman Law_ p. 65.

[92] Dionys. ii. 26, 27.

[93] For the alleged lateness of divorce at Rome, even after the Twelve Tables had freely permitted it, see Gell. iv. 3 (_Infamia in Roman Law_ p. 65).

[94] _Dig._ i. 6, 9 (Pomponius) “filius familias in publicis causis loco patris familias habetur, veluti ut magistratum gerat, ut tutor detur.” Compare the story in Liv. xxiv. 44 (213 B.C.) “Pater filio legatus ad Suessulam in castra venit”—the consul went to meet him; and the old man on horseback passed eleven lictors—“ut consul animadvertere proximum lictorem jussit et is, ut descenderet ex equo, inclamavit, tum demum desiliens, ‘Experiri,’ inquit, ‘volui, fili, satin’ scires consulem te esse.” Cf. Gell. ii. 2.

[95] Festus s.v. _Duicensus_ (p. 66) “dicebatur cum altero, id est cum filio census.”

[96] Probably by a _mancipatio fiduciae causa_, one, i.e., by which he had formally transferred (_mancipavit_) his body on the condition that it was not to be seized for a certain time, and that the transfer should be dissolved (_solutio nexi_) if the debt were paid within this time.

[97] Ulpian Reg. 19, 1; Gaius ii. 15. _Res mancipi_ at a later period included lands in Italy (with their servitudes), slaves and _quadrupedes quae dorso collove domantur_. In the expression _familia pecuniaque_, “familia” probably denotes the slaves. Pierron (_Du sens des mots familia pecuniaque_) has shown the theory of Ihering and Cuq, that the former denotes _res mancipi_, the latter _res nec mancipi_, to be untenable.

[98] Plut. _Cato maj._ 3.

[99] Plut. _Cor._ 24.

[100] See the section on the censor.

[101] Paulus in _Dig._ 28, 2, 11 “in suis heredibus evidentius apparet continuationem dominii eo rem perducere, ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui etiam vivo patre quodammodo domini existimantur.” What the _filius familias_ acquires by the death of his father is merely _libera bonorum administratio_.

[102] Gell. i. 9 “Tamquam illud fuit anticum consortium, quod jure atque verbo Romano appellabatur ‘ercto non cito’”; Serv. in _Aen._ viii. 642 “‘citae’ divisae, ut est in jure ‘ercto non cito,’ id est patrimonis vel hereditate non divisa.”

[103] Gell. xv. 27 “Isdem comitiis, quae ‘calata’ appellari diximus, et sacrorum detestatio et testamenta fieri solebant. Tria enim genera testamentorum fuisse accepimus; unum, quod calatis comitiis in populi contione fieret, alterum in procinctu, cum viri ad proelium faciendum in aciem vocabantur, tertium per familiae emancipationem, cui aes et libra adhiberetur”; Gaius ii. 101 “aut calatis comitiis faciebant, quae comitia bis in anno testamentis faciendis destinata erant; aut in procinctu, id est, cum belli causa arma sumebant.” Cf. Ulpian (_Reg._ 20, 2) on the _testamentorum genera tria_.

[104] This testament is never associated with adrogation, although this took place before the same assembly.

[105] In Gell. (cited n. 1) it is associated with the _sacrorum detestatio_ (see p. 16), and perhaps this was its main object. The pontiffs and people had to be satisfied that the _sacra_ would be continued and the family not become extinct.

[106] See the passages of Gellius, Gaius, and Ulpian, cited n. 1, and compare Festus p. 225 “procincta classis dicebatur, cum exercitus cinctus erat Gabino cinctu confestim pugnaturus.” In the second century B.C. we find some kind of military testament, called by this name, made by Roman soldiers in Spain (Velleius ii. 5 “facientibus ... omnibus in procinctu testamenta, velut ad certam mortem eundum foret”).

[107] Gaius ii. 102 “Qui neque calatis comitiis, neque in procinctu testamentum fecerat, is, si subita morte urguebatur, amico familiam suam, id est, patrimonium suum mancipio dabat, eumque rogabat, quod cuique post mortem suam dari vellet.”

[108] Gaius ii. 104 “Familiam pecuniamque tuam endo mandatela tutela custodelaque mea, quo tu jure testamentum facere possis secundum legem publicam, hoc aere esto mihi empta.” For _familia pecuniaque_ see p. 24.

[109] The stipulation that it was a trust would still have taken the patrimony wholly from the testator during the remainder of his life. We hear nothing about the formal reservation of a life interest.

[110] “Cum nexum faciet mancipiumque, uti lingua nuncupassit ita jus esto.”

[111] Gaius ii. 104 “Haec ita, ut in his tabulis cerisque scripta sunt, ita do, ita lego, ita testor, itaque vos, quirites, testimonium mihi perhibetote.”

[112] Plut. _Comp. Lyc. c. Num._ 4 λέγεται γούν ποτε γυναικὸς εἰπούσης δίκην ἰδίαν ἐν ἀγορᾷ πέμψαι τὴν σύγκλητον εἰς θεοῦ, πυνθανομένην, τίνος ἅρα τῇ πόλει σημεῖον εἴη τὸ γεγενημένον.

[113] Such as the _lex Claudia_, which abolished the _legitima tutela agnatorum_ (Gaius i. 171).

[114] A trace of the old disability survives in the prohibition of advocacy to women; the praetors declined to grant them a formula on behalf of others. A certain Carfania (Gaia Afrania) “inverecunde postulans et magistratum inquietans” is said to have been the occasion of this rule (Ulp. in _Dig._ 3, 11, 5).

[115] This usage was preserved in the praetor’s edict; he spoke of “qui quaeve ... capite deminuti deminutaeve esse dicentur” (_Dig._ 4, 5, 2, 1), meaning what the later jurists call _cap. dem. minima_, i.e. loss of _familia_.

[116] See Eisele “Zur Natur u. Geschichte der capitis deminutio” in _Beiträge zur Römischen Rechtsgeschichte_ p. 160. He combats the counter view that _capitis dem._ meant an annihilation of personality. Mommsen (_Staatsr._ iii. 8) takes this latter view—a natural result of juristic refinement, but a conception that would have been quite unintelligible to a primitive community.

[117] Gaius i. 162 “Minima capitis deminutio est, cum et civitas et libertas retinetur, sed status hominis commutator; quod accidit in his qui adoptantur, item in his quae coemptionem faciunt, et in his qui mancipio dantur, quique ex mancipatione manumittuntur.”

[118] Liv. i. 32.

[119] Gell. i. 12, 14; x. 24, 3.

[120] Mommsen (_Staatsr._ iii. 3, n. 2) connects the word with _populari_. The _magister populi_ (i.e. the dictator) is master of the infantry host.

[121] Varro ap. Dionys. ii 48. Other views derived it from the Sabine town Cures (Varro _L.L._ v. 51; Strabo v. 3, 1) or connected it with _Curia_ (Lange _Röm. Alt._ i. p. 89; Belot _Hist. d. Chev. Rom._ i. p. 312).

[122] Suet. _Jul._ 70.

[123] Capito ap. Gell. i. 20 “Plebes ... in qua gentes civium patriciae non insunt: plebiscitum ... est ... lex, quam plebes, non populus, accipit.” Cf. Festus p. 233.

[124] According to the primitive conception private are dependent on public rights; see p. 31. But the growth of the Plebs, and alliances with other states, had effected many modifications in this conception.

[125] Nonius, s.v. _plebitas_, p. 101 “Hemina in annalibus, ‘Quicumque propter plebitatem agro publico ejecti sunt.’” Cf. Liv. iv. 48.

[126] p. 17.

[127] Cic. _de Leg._ ii. 13, 32 (on the question whether auspices were merely directed to the _utilitas_ of the state, or formed a true method of divination) “si enim deos esse concedimus ... et eosdem hominum consulere generi, et posse nobis signa rerum futurarum ostendere; non video cur esse divinationem negem.”

[128] Cic. _de Div._ ii. 33, 70 (the difficulty of answering for results may appeal to a _Marsus augur_ but not to a Roman) “non enim sumus ii nos augures, qui avium reliquorumve signorum observatione futura dicamus.” Cf. i. 58, 132 “Non habeo ... nauci Marsum augurem, non vicanos haruspices, non de circo astrologos, non Isiacos conjectores, non interpretes somniorum. Non enim sunt ii aut scientia aut arte divini.”

[129] See the treatment of the auspices in the section on the magistracy (p. 163).

[130] Strangely enough the Greek belief in oracular or prophetic power did not lead to the conception of a priesthood set apart from the people. But the Greek science of divination, though associated with oracles and prophecy, did not aim much higher than the Roman. Its object was generally to win approval for a contemplated course of action.

[131] Cic. _de Leg._ ii. 8, 21 “Quaeque augur injusta, nefasta, vitiosa, dira defixerit, inrita infectaque sunto; quique non paruerit, capital esto.”

[132] Serv. ad _Aen._ vi. 190 “auguria aut oblativa sunt, quae non poscuntur, aut impetrativa, quae optata veniunt.” For the categories of these two kinds of auspices see the discussion of the auspices in the section on the magistracy (p. 162).

[133] Liv. vi. 41 “Auspiciis hanc urbem conditam esse, auspiciis bello ac pace, domi militiaeque omnia geri, quis est qui ignoret?”

[134] This view is most fully expressed in the formalities of the _interregnum_. See the section which treats of this institution (p. 147).

[135] Cic. _de Div._ i. 16, 28 “Nihil fere quondam majoris rei, nisi auspicato, ne privatim quidem, gerebatur: quod etiam nunc nuptiarum auspices declarant, qui, re omissa, nomen tantum tenent.” In i. 17, 31 we have the story of Attus Navius taking auspices by _aves_ in a private matter. Cf. Liv. vi. 41.

[136] Cic. _de Div._ i. 16, 28 (see last note); Suet. _Claud._ 26; Tac. _Ann._ xi. 27.

[137] Liv. iv. 2 “Quas quantasque res C. Canuleium adgressum? Conluvionem gentium, perturbationem auspiciorum publicorum privatorumque adferre.” Yet this passage has only an indirect reference to the matrimonial _auspicia_. The argument is that intermarriage would cause the pure Patriciate to disappear, and with it the general right of taking _auspicia impetrativa_.

[138] Cic. _de Div._ ii. 36, 76 “a populo auspicia accepta habemus.” The relation of _auspicia habere_ to the _spectio_ is that the former denotes the abstract right of questioning the gods, the latter its exercise in a particular case (Momms. _Staatsr._ i. 89 n. 3). The specification by the magistrate of the signs which he wished to see was known as _legum dictio_ (Serv. ad _Aen._ iii. 89; cf. p. 43 n. 2).

[139] A similar confusion was at an earlier period introduced with reference to the givers of the auspices. They are said to be given by the people (Cic. _de Div._ ii. 36, 76; p. 39), but the great bulk of the people (i.e. the Plebs) did not possess them.

[140] p. 3.

[141] Dionys. iv. 14 (Servius Tullius) τὰς καταγραφὰς τῶν στρατιωτῶν καὶ τὰς εἰσπράξεις τῶν χρημάτων ... οὐκέτι κατὰ τὰς τρεῖς φυλὰς τὰς γενικάς, ὡς πρότερον, κ.τ.λ. Varro _L.L._ v. 181 “Tributum dictum a tribubus, quod ea pecunia, quae populo imperata erat, tributim a singulis pro portione census exigebatur.”

[142] From _legere_, Varro _L.L._ v. 87.

[143] Varro _L.L._ v. 89 “milites quod trium milium primo legio fiebat, ac singulae tribus Titiensium, Ramnium, Lucerum milia singula militum mittebant.”

[144] ib. 81 “tribuni militum quod terni tribus tribubus Ramnium, Lucerum, Titium olim ad exercitum mittebantur.” On the other hand, Servius (in _Aen._ v. 560) says that the _tribuni_ were so called because they presided over one-third of the whole force.

[145] p. 12.

[146] Liv. i. 36.

[147] e.g. Calabra, Foriensis, Veliensis. Other names (such as Titia) may be eponymous.

[148] Festus p. 62 “curionia sacra, quae in curiis fiebant”; p. 64 “curiales flamines curiarum sacerdotes.”

[149] ib. p. 49 (s.v. _curia_) “locus est, ubi publicas curas gerebant.”

[150] See note 1.

[151] Festus p. 126; Liv. xxvii. 8.

[152] Festus p. 55 “Celeres antiqui dixerunt, quos nunc equites dicimus ... qui primitus electi fuerunt ex singulis curiis deni, ideoque omnino trecenti fuere.”

[153] Liv. i. 26; Cic. _de Rep._ ii. 31, 54.

[154] Dionys. ii. 14.

[155] “Generale jussum” (Capito ap. Gell. x. 20).

[156] _Lex_ is probably connected etymologically with the German _legen_ (Gothic _lagjan_) as θεσμός with τίθημι.

[157] In business we have _leges locationis, venditionis_, in the structure of corporations a _lex collegii_. On the other hand, in the _legum dictio_ of augury, which is the statement of the mode of the answer of the gods to a request, in the _lex data_ given to individuals by a magistrate (e.g. the _leges censoriae_) or granted by Rome as a charter to a subject state, there seems to be the idea of a purely one-sided ordinance.

[158] Dionys. iii. 62; Cic. _de Rep._ ii. 17, 31.

[159] Tac. _Ann._ xi. 22; Ulp. in _Dig._ i. 13.

[160] Varro _L.L._ v. 80 “Praetor dictus, qui praeiret jure et exercitu.” But the title is, perhaps, a purely military one (_prae-itor_, “the man who goes before the army”).

[161] Festus p. 198 “in magistro populi faciendo, qui vulgo Dictator appellatur.”

[162] Cic. _de Rep._ i. 26, 42. _Regnum_ denotes the position of the king as head of the state (ib. ii. 27), but not the regal power.

[163] _Lictor_ is probably derived from _licere_. For other attempts at derivation see Gell. xii. 8. They summon, not only to the assembly, but also to the courts, and are thus the chief mark of jurisdiction and coercive power (_coercitio_). The individual _curiae_ were probably summoned by the thirty _lictores curiatii_, who survive into the later Republic. See Momms. _Staatsr._ i. p. 392. For the number of lictors that accompanied the king see Cic. _de Rep._ ii. 17, 31; Liv. i. 8; Dionys. ii. 29; iii. 61, 62.

[164] Serv. in _Aen._ vii. 188, 612; xi. 334; Ov. _Fast._ ii. 503.

[165] Cic. _de Fin._ ii. 21, 69; Dionys. iii. 61.

[166] Festus p. 49 “currules magistrates appellati sunt, quia curru vehebantur.”

[167] Dionys. iv. 74.

[168] Festus p. 209 “Picta quae nunc toga dicitur purpurea ante vocitata est eaque erat sine pictura.” It was already _picta_ (διάχρυσος) in Polybius’ time (Polyb. vi. 53).

[169] Liv. i. 56.

[170] “Arvi et arbusta et pascui lati atque uberes” (Cic. _de Rep._ v. 2, 3). Cf. Liv. ii. 5.

[171] p. 8.

[172] Cic. _de Rep._ ii. 12, 24 “Nostri illi etiam turn agrestes viderunt virtutem et sapientiam regalem, non progeniem quaeri oportere.” Cf. App. _B.C._ i. 98.

[173] Liv. i. 7 and 18.

[174] Liv. i. 17; Cic. _de Rep._ ii. 17, 31.

[175] The _interregnum_, though only an occasional office in the Republic, is represented as an invariable part of the procedure in the transmission of the kingly power (Liv. i. 47).

[176] Dionys. v. 1; Liv. xl. 42.

[177] Tac. _Ann._ i. 14 and 81; Dio Cass. liii. 21, 7; lviii. 20, 3.

[178] Cic. _de Rep._ ii. 12, 23; Liv. i. 17; Dionys. ii. 57.

[179] [Cic.] _ad Brut._ i. 5, 4.

[180] Cf. Serv. in _Aen._ vi. 808 “Romulo mortuo cum ... Senatus ... regnasset per decurias.”

[181] Dionys. ii. 57 διακληρωσάμενοι.

[182] Dionys. ii. 57 τοῖς λαχοῦσι δέκα πρώτοις ἀπέδωκαν ἄρχειν τῆς πόλεως τὴν αὐτόκρατορ’ ἀρχήν: Liv. i. 17 “decem imperitabant, unus cum insignibus imperii et lictoribus erat.”

[183] In the accounts of this procedure an important element is probably omitted, i.e. that each individual _interrex_ nominated his successor. The first could not nominate the king, as he had not received the auspices in due form.

[184] Mommsen (_Staatsr._ i. pp. 213, 214) takes a different view, arguing that the king was in every case nominated, not by the _rex_, but by the _interrex_, on the legal ground that the appointment of a successor would have been one of those “actus legitimi qui non recipiunt diem vel condicionem” (such as _hereditatis aditio_, _tutoris datio_), and which “in totum vitiantur per temporis vel condicionis adjectionem” (Papin. in _Dig._ 50, 17, 77). But, even in the regal period, there may have been one condition which did not vitiate such acts, i.e. death (see p. 29).

[185] Liv. i. 17, 22, 32, 41, 47.

[186] Cic. _de Leg._ Agr. ii. 10, 26; ii. 11, 28; _ad Fam._ i. 9, 25.

[187] Cic. _de Rep._ ii. 13, 25 “Numam ... qui ... quamquam populus curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit.”

[188] Liv. i. 41 “Servius, praesidio firmo munitus, primus injussu populi, voluntate patrum regnavit.”

[189] Cic. _de Rep._ ii. 17, 31 “Tullum Hostilium populus regem, interrege rogante, comitiis curiatis creavit, isque de imperio suo ... populum consuluit curiatim.”

[190] The last _injustus dominus_ of Rome ruled “neque populi jussu neque auctoribus patribus” (Cic. _de Rep._ ii. 24, 45; Liv. i. 49).

[191] Thus Romulus takes his own auspices on the Palatine (Liv. i. 6).

[192] p. 39.

[193] Liv. i. 18 “de se ... deos consuli jussit.”

[194] Labeo ap. Gell. xv. 27, 1; Liv. xl. 42, 8.

[195] Dionys. ii. 14; iv. 74; Plut. _Ti. Gracch._ 15.

[196] Festus p. 185; Labeo ap. Gell. xv. 27; Ov. _Fasti_ ii. 21.

[197] This is shown by his sacrifices on the Kalends and on the Nones (_sacra nonalia_) and his offering of a ram to Janus in the _regia_ on the _Agonalia_ (Jan. 9) (Festus p. 10; Varro _L.L._ vi. 12; Ov. _Fasti_ i. 317).

[198] Festus p. 113; Macrob. i. 15, 19.

[199] Liv. i. 20 “Numa Pontificem ... Numam Marcium M. f. ex patribus legit, eique sacra omnia exscripta exsignataque attribuit, quibus hostiis, quibus diebus, ad quae templa sacra fierent, atque unde in eos suraptus pecunia erogaretur. Cetera quoque omnia publica privataque sacra Pontificis scitis subjecit, ut esset, quo consultum plebes veniret: ne quid divini juris, negligendo patrios ritus, peregrinos que adsciscendo, turbaretur, etc.” But afterwards (in 449 B.C.) Livy (iii. 54) implies the existence of a college, without mentioning its institution. Cf. iv. 44.

[200] Cic. _de Rep._ ii. 14, 26.

[201] Liv. x. 6.

[202] Bouché-Leclercq _Les Pontifes de l’ancienne Rome_ p. 9. That the king was pontiff is stated by Plutarch (_Numa_ 9), Servius (ad _Aen._ iii. 81), and Zosimus (iv. 36), but the evidence may be vitiated by the position of the Princeps as _pontifex maximus_.

[203] Liv. i. 20 (p. 51 n. 5); cf. Ambrosch _Studien_ p. 22.

[204] Cic. _de Rep._ ii. 9, 16; _de Div._ i. 2, 3.

[205] Liv. i. 20 “Tum sacerdotibus creandis animum adjecit, quamquam ipse plurima sacra obibat, ea maxime quae nunc ad Dialem flaminem pertinent.”

[206] As, e.g., the nomination of Flamines belonged to the Latin dictator (Ascon. in _Milon._ p. 32).

[207] Gaius i. 130. The same was the case with the Vestal (Gell. i. 12).

[208] For the Flamen see Liv. xxxi. 50; Festus p. 104. For the Vestal, Gell. x. 15.

[209] Plut. _Numa_ 10.

[210] Liv. i. 20 (cited p. 51).

[211] _Supplicium_, from _sub-placo_, death as a sin-offering (Festus p. 308 “supplicia ... sacrificia a supplicando”); _castigatio_ (“castum agere”) purification through atonement. On the other hand _poena_, _multa_, _talio_ bear witness to a theory of compensation and private vengeance. See Rein _Criminalrecht_ p. 39.

[212] Liv. i. 26; Dionys. iii. 22; Festus pp. 297 and 307.

[213] Festus p. 222; Gell. iv. 3.

[214] Macrob. i. 16, 10 “prudentem expiare non posse.”

[215] Cic. _de Leg._ ii. 9, 22.

[216] Dionys. ii. 10; Serv. ad _Aen._ vi. 609.

[217] Festus p. 230.

[218] Dionys. ii. 74; Festus p. 368.

[219] Plin. _H.N._ xviii. 3, 12.

[220] Bouché-Leclercq _Les Pontifes_ p. 196. In the _lex sacrata_ which protected the tribunes we meet with this distinction (Liv. iii. 55).

[221] Festus p. 318 “At homo sacer is est, quem populus judicavit ob maleficium; neque fas est eum immolari, sed qui occidit, parricidi non damnatur.” This is the meaning of _sacer_ as employed in the _leges sacratae_ of the early Republic (Liv. ii. 8; iii. 55).

[222] The _sacramentum_ (literally “oath”) in the _actio sacramento_ is best explained as an atonement (_piaculum_) in the form of a money payment for the expiable, because involuntary, perjury of the litigant who has maintained a false claim. When the process was secularised, the _sacramentum_ came to be considered a simple wager. See Danz _Der sacrale Schutz_ pp. 151 ff.

[223] Cic. _de Rep._ ii. 17, 31 “constituitque jus, quo bella indicerentur; quod per se justissime inventum sanxit fetiali religione, ut omne bellum, quod denuntiatum indictumque non esset, id injustum esse atque impium judicaretur.”

[224] Varro _L.L._ v. 86 “Fetiales ... fidei publicae inter populos praeerant; nam per hos fiebat ut justum conciperetur bellum et inde desitum, ut foedere fides pacis constitueretur. Ex his mittebantur, antequam conciperetur, qui res repeterent, etc.”

[225] Cic. _de Leg._ ii. 9, 21 “Foederum, pacis, belli, indutiarum ratorum fetiales judices nuntii sunto; bella disceptanto.” The word _fetialis_ is probably connected with _fateri_ (and Oscan _fatium_). Thus the “Fetiales” are speakers (_oratores_), cf. Festus p. 182. Dionysius (ii. 72) ascribes the creation of the Fetiales to Numa; Livy (i. 32) speaks as if they were due to Ancus Martius, but in another passage (i. 24) implies their earlier existence. Cicero attributes them to Tullus Hostilius (Cic. _de Rep._ ii. 17, 31). The ceremonies of the college are described in Dionys. ii. 72 and Liv. i. 32.

[226] Sometimes, the better to secure divine assistance, the enemy, his cities, and his lands were all devoted to the gods. For the incantation see Macrob. iii. 9, 10 “Dis pater Vejovis Manes, sive quo alio nomine fas est nominare ... uti vos eas urbes agrosque capita aetatesque eorum devotas consecratasque habeatis ollis legibus, quibus quandoque sunt maxime hostes devoti; eosque ego ... do devoveo.” The site of such cities was cursed, as in Republican times that of Fregellae, Carthage, and Corinth.

[227] Macrob. iii. 9, 7 “Si deus, si dea est, cui populus civitasque ... est in tutela, teque maxime, ille qui urbis hujus populique tutelam recepisti ... a vobis peto ut vos populum civitatemque ... deseratis ... proditique Romam ad me meosque veniatis, nostraque vobis loca templa sacra urbs acceptior probatiorque sit.”

[228] Cincius ap. Arnob. iii. 38 “solere Romanos religiones urbium superatarum partim privatim per familias spargere, partim publice consecrare.”

[229] e.g. the _evocatio_ at the siege of Veii, the _devotio_ on the fall of Carthage.

[230] Plut. _Ti. Gracch._ 15; Tac. _Ann._ iii. 26. See next citation.

[231] Tac. _Ann._ iii. 26 “nobis Romulus, ut libitum, imperitaverat: dein Numa religionibus et divino jure populum devinxit, repertaque quaedam a Tullo et Anco. Sed praecipuus Servius Tullius sanctor legum fuit, quis etiam reges obtemperarent.”

[232] Pomponius in _Dig._ 1, 2, 2 “et ita leges quasdam et ipse (Romulus) curiatas ad populum tulit; tulerunt et sequentes reges. Quae omnes conscriptæ extant in libro Sexti Papirii, qui fuit illis temporibus, quibus Superbus Demarati Corinthii filius, ex principalibus viris. Is liber, ut diximus, appellatur jus civile Papirianum, non quia Papirius de suo quicquam ibi adjecit, sed quod leges sine ordine latas in unum composuit.” This code was commented on by Granius Flaccus (Paul. in _Dig._ 50, 16, 144), a contemporary of Julius Caesar. C. Papirius is said to have been _pontifex maximus_ (Dionys. iii. 36), and Mommsen (_Staatsr._ ii. p. 41) thinks that the _leges regiae_ were simply pontifical ordinances, specifying amongst other things such offences as we have mentioned as coming under _fas_ (p. 54).

[233] Sall. _Cat._ 6 “imperium legitimum, nomen imperii regium habebant.”

[234] “Regium consilium” (Cic. _de Rep._ ii. 8, 14). The function of the Senate was περὶ παντὸς ὃτου ἂν εἰσηγῆται βασιλεὺς διαγινὼσκειν (Dionys. ii. 14).

[235] Festus p. 246 “Praeteriti senatores quondam in opprobrio non erant, quod, ut reges sibi legebant sublegebantque, quos in consilio publico haberent, ita post exactos eos consules quoque et tribuni militum consulari potestate conjunctissimos sibi quosque patriciorum et deinde plebeiorum legebant.”

[236] p. 13.

[237] Liv. i. 8.

[238] ib. 17 and 35; ii. 1. On the nature of this increase see Willems _Le Sénat_ p. 21.

[239] p. 13.

[240] p. 12.

[241] Liv. i. 32.

[242] Dionys. ii. 14. One of the privileges of the people was περὶ πολέμου διαγινώσκειν ὃταν ὁ βασιλεύς ἐφῇ.

[243] Cic. _de Rep._ ii. 9, 15 “Cum ipse (Romulus) nihil ex praeda domum suam reportaret, locupletare cives non destitit”; ii. 14, 26 “ac primum agros, quos bello Romulus ceperat, divisit viritim civibus.” Cf. Dionys. ii. 28 and 62.

[244] Liv. i. 49 “cognitiones capitalium rerum sine consiliis per se solus exercebat.”

[245] ib. 59; see p. 41.

[246] Tac. _Ann._ vi. 11 “namque antea, profectis domo regibus ac mox magistratibus, ne urbs sine imperio foret, in tempus deligebatur qui jus redderet ac subitis mederetur ... duratque simulacrum, quotiens ob ferias Latinas praeficitur qui consulare munus usurpet.” Cf. Liv. i. 59; Dionys. ii. 12.

[247] Yet Livy and Dionysius represent the _tribunus celerum_ as summoning the assembly (Liv. i. 59; Dionys. iv. 71).

[248] Dionys. ii. 14 (amongst the powers of the king were) τῶν τε ἀδικημάτων τὰ μέγιστα μὲν αὐτὸν δικάζειν, τὰ δ’ ἐλάττονα τοῖς βουλευταῖς ἐπιτρέπειν. It is difficult, however, to determine whether the reference is to civil wrongs or to crimes.

[249] ib. iv. 25 ἐκεῖνος (Servius Tullius) διελὼν ἀπὸ τῶν ἰδιωτικῶν (ἐγκλημάτων) τὰ δημόσια, τῶν μὲν εἰς τὸ κοινὸν φερόντων ἀδικημάτων αὐτὸς ἐποιεῖτο τὰς διαγνώσεις, τῶν δὲ ἰδιωτικῶν ἰδιώτας ἔταξεν εἶναι δικαστάς, ὅρους καὶ κανόνας αὐτοῖς τάξας, οὓς αὐτὸς ἔγραψε νόμους. The principle here described perhaps refers to delegation rather than to the distinction between _jus_ and _judicium_ in civil process.

[250] For derivations of _jus_ see Clark _Pract. Jurisprudence_ pp. 16-20; Bréal “Sur l’origine des mots designant le droit en Latin” in _Nouvelle Revue Historique de droit_ vol. vii. (1883) pp. 607 sq.

[251] Dionys. l.c.

[252] Liv. i 26.

[253] Zonaras vii. 13 (who attributes their institution to Publicola) identifies the _quaestores_ with the _quaestores parricidii_, οἷ πρῶτον μὲν τὰς θανασίμους δίκας ἐδίκαζον, ὄθεν καὶ τὴν προσηγορίαν ταύτην διὰ τὰς ἀνακρίσεις ἐσχήκασι καὶ διὰ τὴν τῆς ἀληθείας ἐκ τῶν ἀνακρίσεων ζήτησιν. Cf. Varro _L.L._ v. 81. Mommsen (_Staatsr._ ii. pp. 523 sq.) thinks the financial quaestors as standing officials originated with the Republic; but he believes (p. 539) that they had their origin in the criminal _quaestores_ (a word which bears the same relation to _quaesitores_ as _sartor_ to _sarcitor_ or _quaero_ to _quaesivi_, p. 537). Cf. Tac. _Ann._ xi. 22 (p. 81); Ulpian in _Dig._ i. 13.

[254] Liv. l.c.

[255] Cic. _pro Mil._ 3, 7; _de Rep._ ii. 31, 54; Festus p. 297.

[256] Liv. i 26 “Si a duumviris provocarit provocatione certato ... auctore Tullo, ... ‘provoco’ inquit.”

[257] ib. viii. 33.

[258] Cf. Ihering _Geist des röm. Rechts_ i. pp. 257 ff.

[259] _Provocatio_ seems to mean a challenge, i.e. a challenge by an accused to a magistrate to appear before another tribunal, on the ground that he is not acting within his own right; cf. Gaius iv. 93 (of the _actio per sponsionem_) “Provocamus adversarium tali sponsione.”

[260] “In this conflict of competence the position of the king was far more favourable than that of the people, since the people could only be summoned by the king. Hence the share of the people in criminal jurisdiction was reduced to a minimum” (Ihering _Geist des röm. Rechts_ i. p. 258).

[261] “Judiciis regiis” (Cic. _de Rep._ v. 2, 3).

[262] p. 56.

[263] Savigny _System_, vi. p. 287; Bernhöft _Staat und Recht der Königszeit_ p. 230. The idea of its being an innovation has sometimes been associated with Dionysius’s description (iv. 25, see p. 62) of a change in jurisdiction introduced by Servius Tullius.

[264] Cic. _pro Cluent._ 43, 120 “Neminem voluerunt majores nostri non modo de existimatione cujusquam, sed ne pecuniaria quidem de re minima esse judicem, nisi qui inter adversarios convenisset.”

[265] Ihering _Geist des röm. Rechts_ i. p. 169.

[266] Dionys. iv. 22 ὁ δὲ Τύλλιος καὶ τοῖς ἐλευθερουμένοις τῶν θεραπόντων ... μετέχειν τῆς ἰσοπολιτείας ἐπέτρεψε ... καὶ πάντων ἀπέδωκε τῶν κοινῶν αὐτοῖς μετέχειν, ὧν τοῖς ἄλλοις δημοτικοῖς.

[267] The change, however, was not supposed (except perhaps by Tacitus _Ann._ iii. 26, see p. 58) to rest on a _rogatio_. Mommsen (_Staatsr._ iii. p. 161) explains this tradition by noting that the alteration was a mere administrative act, which would fall within the competence of the king.

[268] It is possible that these three tribes would have been to some extent local; but locality was an accident. Membership of them was transmitted by birth.

[269] Dionysius (iv. 22) makes them at a later time members of the _curiae_.

[270] Dionys. iv. 14; Gell. xv. 27.

[271] Cic. _pro Flacco_ 32, 80 “sintne ista praedia censui censendo, habeant jus civile, sint necne sint mancipi?... in qua tribu denique ista praedia censuisti?” The _ager publicus_ was not included in the tribes, nor were the Capitol and Aventine, because they were not private, but public property (Liv. vi. 20; Dionys. x. 31 and 32).

[272] Liv. i. 43 “Quadrifariam urbe divisa, regionibusque et collibus, qui habitabantur, partes eas tribus appellavit”; Dionys. iv. 14 ὁ Τύλλιος, ἐπείδη τούς ἑπτὰλόφους ἐνὶ τείχει περιέλαβεν, εἰς τέτταρας μοίρας διελὼν τὴν πόλιν ... τετράφυλον ἐποίησε τὴν πόλιν εἶναι, τρίφυλον οὖσαν τέως.. So Festus p. 368 “urbanas tribus appellabant, in quas urbs erat dispertita a Ser. Tullio rege.” Cf. Varro _L.L._ v. 56. Mommsen (_Staatsr._ iii. p. 163) now holds that the tribes were “parts of the state-town limited by the _pomerium_.” Ostia, once thought to belong to Palatina, has been shown to belong to Voturia. But the reason for this may be the subsequent loss of the _territorium_ of the city. See p. 68.

[273] Momms. _Staatsr._ iii. p. 168. Rome was at this time a great commercial state (cf. treaty with Carthage, 509 B.C.). That such a primitive institution as gentile tenure could have existed at this time is inconceivable.

[274] Dionys. iv. 15 διεῖλε δὲ καὶ τὴν χώραν ἅπασαν, ὡς μὲν Φάβιός φησιν, εἰς μοίρας ἕξ τε καὶ εἴκοσιν, ἃς καὶ αὐτὰς καλεῖ φυλάς. Mommsen (_Staatsr._ iii. p. 169) seems to lean to the view that those country districts, comprising land not in quiritarian ownership, were _pagi_.

[275] _Sucusana_ (or _Suburana_), _Palatina_, _Esquilina_, and _Collina_. See p. 3.

[276] Cf. Momms. _Staatsr._ iii. p. 125 “The four tribes are probably nothing more than the three Romulian increased through the _territorium_ of the town on the Quirinal”; p. 164 “Servian Rome, probably a double town composed of the old city, Palatine and Esquiline, and the new town of the Colline.”

[277] Districts like Ostia, which must have belonged to the Servian tribes, now formed parts of the new creations (see p. 67).

[278] Servius is said for this reason to have prohibited transference of domicile or allotment. Dionys. iv. 14 (Servius) τοὺς ἀνθρῶπους ἔταξε τοὺς ἐν ἑκάστῃ μοίρᾳ τῶν τεττάρων οἰκοῦντας, ὥσπερ κωμήτας, μήτε μεταλαμβάνειν ἑτέραν οἴκησιν μήτ’ ἄλλοθι που συντελεῖν.

[279] Momms. _Staatsr._ iii. pp. 182, 184.

[280] Laelius Felix ap. Gell. xv. 27 “Cum ex generibus hominum suffragium feratur, ‘curiata’ comitia esse, cum ex censu et aetate ‘centuriata,’ cum ex regionibus et locis, ‘tributa.’”

[281] Servius himself is credited with the introduction of _aes signatum_—carefully adjusted copper weights stamped by authority. Plin. _H.N._ xviii. 3 “Servius rex ovum boumque effigie primus aes signavit.” Mommsen (_Römisches Münzwesen_) thinks that the stamp was a guarantee not of the weight but of the purity of the metal. In this case the metal must have been used as a medium of exchange; as a medium of barter the weight would be sufficient. Mommsen’s opinion is (op. cit. p. 175) that a regular copper coinage was not introduced at Rome until about the period of the _decemviri_ (450-430 _B.C._), and more recent numismatists pronounce even this date to be too early.

[282] Momms. _Staatsr._ iii. p. 247.

[283] The existence of the guilds in regal times (Plut. _Num._ 17) rather proves than disproves the competing manufacture by slaves.

[284] Cic. _pro Flacco_ 32, 80. See p. 66.

[285] For this difference of armour see Liv. i. 43; Dionys. iv. 16, 17. It survived into Polybius’ time (Polyb. vi. 23 ὁι δὲ ὑπὲρ τὰς μυρίας τιμώμενοι δραχμὰς ἀντὶ τοῦ καρδιοφύλακος σὺν τοῖς ἄλλοις ἁλυσιδωτοὺς περιτίθενται θώρακας).

[286] Gellius vi. (vii.) 13 “‘Classici’ dicebantur non omnes, qui in quinque classibus erant, sed primae tantum classis homines, qui centum et viginti quinque milia aeris ampliusve censi erant. ‘Infra classem’ autem appellabantur secundae classis ceterarumque omnium classium, qui minore summa aeris, quod supra dixi, censebantur”; Festus p. 113 “infra classem significantur qui minore summa quam centum et viginti milium aeris censi sunt.”

Belot (_Hist. d. Chev. Rom._ i. 204, 205) thinks that the 125,000 asses mentioned here was the figure of the lowest census—the fifth class—at the time of the _lex Voconia_ (169 B.C.), mentioned in this connexion by Festus. The designation in asses was still kept, but the _as_ must now be multiplied by 10 (12,500 × 10 = 125,000 asses). Belot starts from his hypothesis that the _as_ of the census is the old libral _as_. See the tables on the next page. Mommsen (_Staatsr._ iii. p. 249 n. 4), on the other hand, supposes that the law referred to the census of the first class, and that it was through an interpretation meant to limit its operation, when the value of money had altered, expressed in terms of the _centum milia aeris_ of libral asses. That it was so interpreted is shown by the fact that the _centum milia aeris_ of the Voconian law (Gaius ii. 274) became _centum milia sestertium_ (Schol. to Cic. _Verr._ ii. 1, 41, 104, p. 188 Orell.), i.e. 25,000 denarii (Dio Cass. lvi. 10).

[287] Plut. (_Num._ 17) mentions τέκτονες and χαλκεῖς amongst the _collegia_ (Momms. _Staatsr._ iii. p. 287 n. 1).

[288] So too Polybius (vi. 23, cited p. 70).

[289] Plin. _H.N._ xxxiii. 3 “Maximus census CXX assium fuit illo (Servio) rege, et ideo haec prima classis.” Festus p. 113 (cited p. 70).

[290] _Staatsrecht_ iii pp. 249, 250. Böckh (_Metrologische Untersuchungen_ p. 444) also takes the view of the asses being _sextantarii_. He makes the qualifications in terms of the libral _as_ and the _as_ of two ounces respectively: 20,000 = 100,000, 15,000 = 75,000, 10,000 = 50,000, 5000 = 25,000, 2000 = 10,000.

[291] _Histoire des Chevaliers Romains_ (Table at commencement of vol. i).

[292] Festus p. 18 “accensi dicebantur qui in locum mortuorum militum subito subrogabantur, dicti ita, quia ad censum adiciebantur”; p. 369 “velati appellabantur vestiti et inermes qui exercitum sequebantur, quique in mortuorum militum loco substituebantur.” Cf. p. 14 “adscripticii veluti quidam scripti dicebantur, qui supplendis legionibus adscribebantur. Hos et accensos dicebant, quod ad legionum censum essent adscripti. Quidam velatos, quia vestiti inermes sequerentur exercitum.”

[293] Liv. i. 43 “hoc minor census reliquam multitudinem habuit; inde una centuria facta est immunis militia”; Dionys. iv. 18 (the remaining citizens with a qualification under 12½ minae Servius placed in one λόχος) στρατείας τε ἀπέλυσε καὶ πάσης εἰσφορᾶς ἐποίησεν ἀτελεῖς. Cf. vii. 59 οὖτοι στρατειῶν τε ἧσαν ἐλεύθεροι τῶν ἐκ καταλόγου καὶ εἰσφορῶν τῶν κατὰ τιμήματα γενομένων ἀτελεῖς καὶ δι’ ἄμφω ταῦτ’ ἐν ταῖς ψηφοφορίαις ἀτιμότατοι. Cf. Cic. _de Rep._ ii. 22, 40 “in quo etiam verbis ac nominibus ipsis fuit diligens; qui, cum locupletes assiduos appellasset ab asse dando, eos, qui aut non plus mille quingentos aeris aut omnino nihil in suum censum praeter caput attulissent, proletarios nominavit; ut ex iis quasi proles, id est quasi progenies civitatis, exspectari videretur. Illarum autem sex et nonaginta centuriarum in una centuria tum quidem plures censebantur, quam paene in prima classe tota.”

[294] Ulpian in _Fragm. Vat._ 138 “ii qui in centuria accensorum velatorum sunt, habent immunitatem a tutelis et curis.”

[295] The word is not technical enough to be used as an argument that the _classes_ included only landholders. The favourite ancient derivation was from _ab asse dando_ (Cic. _de Rep._ ii. 22, 40, see p. 72), whether for the payment of taxation or for the furnishing of military equipment.

[296] _Capite censi_, if we trust Cicero (_de Rep._ ii. 22, 40, see p. 72), came to mean those below 1500 asses (the subsequent limit to the incidence of taxation). The limit of census for military service was also reduced to 4000 asses (Polyb. vi. 19), and finally to 375 (Gell. xvi. 10, 10), and those below this census continued to be called _capite censi_ (Gell. l.c.; Sall. _Jug._ 86). _Aerarius_, on the other hand, seems to have preserved its old meaning of those excluded from the centuries—Ps. Asc. in _Divin._ p. 103 “(Censores) prorsus cives sic notabant ... ut, qui plebeius (esset) ... aerarius fieret, ac per hoc non esset in albo centuriae suae, sed ad hoc [non] esset civis, tantummodo ut pro capite suo tributi nomine aera praeberet.”

[297] p. 41.

[298] It is not known when they ceased to be patrician; Mommsen (_Staatsr._ iii. p. 254) thinks on the reform of the Servian constitution, _circa_ 220 B.C.

[299] Liv. i. 36.

[300] Cic. _de Rep._ ii. 22, 39.

[301] Festus p. 221 “paribus equis, id est duobus, Romani utebantur in proelio, ut sudante altero transirent in siccum. Pararium aes appellabatur id, quod equitibus duplex pro binis equis dabatur.”

[302] Liv. i. 43 “ita pedestri exercitu ornato distributoque equitum ex primoribus civitatis duodecim scripsit centurias. Sex item alias centurias ... sub isdem, quibus inauguratae erant, nominibus fecit: ad equos emendos dena millia aeris ex publico data [i.e., as Livy understands it, 10,000 _asses sextantarii_ = 1000 denarii], et, quibus equos alerent, viduae adtributae, quae bina milia aeris in annos singulos penderent” [2000 asses = 200 denarii]. Cf. Gaius iv. 27.

[303] The number of the century was here fixed, and not, as in the case of the _classici_, expansive.

[304] Cf. Liv. i. 43 “neque eae tribus ad centuriarum distributionem numerumque quicquam pertinuere.” There is no evidence, e.g., that each tribe furnished a certain number of centuries.

[305] _Tributum_, however, cannot be derived from _tribus_ (as by Varro quoted p. 40). The parallel words _attribuere_, _contribuere_, _ultro tributa_, etc., seem to show that it means something added to, conferred on, or collected for another.

[306] p. 48.

[307] As such it was in the Republic given for the censors. Cic. _de Leg. Agr._ ii. 11, 26 “majores de singulis magistratibus bis vos sententiam ferre voluerunt; nam cum centuriata lex censoribus ferebatur, cum curiata ceteris patriciis magistratibus, tum iterum de eisdem judicabatur.”

[308] p. 43.

[309] p. 63.

[310] p. 60.

[311] Liv. i. 48 “id ipsum tam mite ac tam moderatum imperium tamen, quia unius esset, deponere eum in animo habuisse quidam auctores sunt, ni scelus intestinum liberandae patriae consilia agitanti intervenisset.”

[312] ib. 49.

[313] Cic. _de Rep._ ii. 22, 44.

[314] Cic. _de Rep._ ii. 30, 52; Liv. ii. 1; App. _B.C._ ii. 119. It is sometimes represented as a law which made any one who aimed at royalty _sacer_ (Liv. ii. 8). For the dual sanction of the oath and the law compare the means by which the _sacrosanctitas_ of the tribunes was secured (p. 100).

[315] It is strange that the _interregnum_, which would have secured a continuity, is not mentioned in this case. The election of the first consuls was supposed to have been conducted by the _praefectus urbi_, who almost certainly had not the _jus rogandi_ (p. 61). Liv. i. 60 “duo consules inde comitiis centuriatis a praefecto urbis ex commentariis Servii Tullii creati sunt, L. Junius Brutus et L. Tarquinius Collatinus.”

[316] For the title _praetores_ see Cic. _de Leg._ iii. 3, 8 “regio imperio duo sunto iique a praeeundo judicando consulendo praetores judices consules appellamino”; for that of _judices_, Varro _L.L._ vi. 88, who quotes from the _commentarii consulares_ the formula used in summoning the _comitia centuriata_, “qui exercitum imperaturus erit, accenso dicito: ‘C. Calpurni, voca in licium omnes Quirites huc ad me.’ Accensus dicito sic ‘Omnes Quirites in licium visite huc ad judices.’ ‘C. Calpurni,’ consul dicito, ‘voca ad conventionem omnes Quirites huc ad me.’ Accensus dicito sic ‘Omnes Quirites ite ad conventionem huc ad judices.’”

[317] See the section on the magistracy (p. 187).

[318] This ratification indeed remained. Even though elections were conducted before the centuries, a _lex_ was still passed by the _curiae_ ratifying this election (p. 49); and the _patrum auctoritas_ was still required to sanction each fresh appointment.

[319] If it existed before it could have been only in the priestly colleges, but these seem rather advising bodies to the king.

[320] From _con-salio_, i.e. people who leap or dance together, “partners” (in a dance). Momms. _Staatsr._ ii. p. 77 n. 3; he compares _praesul_ and _exul_.

[321] Liv. ii. 8 (509 B.C.) “Latae deinde leges ... ante omnes de provocatione adversus magistratus ad populum”; Cic. _de Rep._ i. 40, 62 “Vides ... Tarquinio exacto, mira quadam exsultare populum insolentia libertatis; tum annui consules, tum demissi populo fasces, tum provocationes omnium rerum” (i.e. the _provocatio_ became _universal_ instead of being confined to certain _spheres_).

[322] By this time the direct capital jurisdiction of the pontiffs had probably become extinct.

[323] Liv. iii. 20 “neque provocationem esse longius ab urbe mille passuum, et tribunos si eo (lake Regillus) veniant, in alia turba Quiritium subjectos fore consulari imperio.” But the question between the _pomerium_ and the first milestone was in later times still a disputed one (Liv. xxiv. 9).

[324] Cic. l.c.

[325] p. 63.

[326] The _quaestores parricidii_ and _aerarii_ are identified by Zonaras (vii. 13), following Dio. See p. 63. They were called _quaestores_, οἵ πρῶτον μὲν τὰς θανασίμους δίκας ἔδίκαζον (whence their title), ὕστερον δὲ καὶ τὴν κοινῶν χρημάτων διοίκησιν ἔλαχον. So Varro (_L.L._ v. 81), “quaestores a quaerendo, qui conquirerent publicas pecunias et maleficia.” The identity of the two offices is denied by Pomponius in _Dig._ 1, 2, 2, 22 and 23.

[327] _Quaestores parricidii_ were mentioned in the Twelve Tables (Pompon. in _Dig._ 1, 2, 2, 23).

[328] Liv. i. 26.

[329] They are mentioned in the trial of M. Volscius (459 B.C.) for an ordinary criminal offence (Liv. iii. 24), but also in the public trials of Sp. Cassius in 485 B.C. (Liv. ii. 41; Cic. _de Rep._ ii. 35, 60), and of Camillus in 396 B.C. (Plin. _H.N._ xxxiv. 3, 13); but various accounts are given of the procedure in these two trials.

[330] Plut. _Public._ 12 ταμιεῖον μὲν ἀπέδειξε τὸν τοῦ Κρόνου ναόν ... ταμίας δὲ τῳ δήμῳ δύο τῶν νέων ἔδωκεν ἀποδεῖξαι. The first quaestors appointed were Publius Veturius and Marcus Minucius. Pomponius (p. 80) puts the creation of the financial quaestors after the first secession of the Plebs; Lydus (_de Mag._ i. 38) attributes them to the Licinian law of 367.

[331] Tac. _Ann._ xi. 22 “Sed quaestores regibus etiam tum imperantibus instituti sunt, quod lex curiata ostendit ab L. Bruto repetita. Mansitque consulibus potestas deligendi, donec eum quoque honorem populus mandaret. Creatique primum Valerius Potitus et Aemilius Mamercus sexagesimo tertio anno post Tarquinios exactos, ut rem militarem comitarentur” (i.e. 447 B.C.; hence Mommsen, _Staatsr._ ii. p. 529, thinks the change was due to the Valerio-Horatian laws of 449 B.C.). Plutarch (see note 1) thinks they were elected from the first. The meaning of the passage of Tacitus seems to be that the king nominated his quaestors after his own election, and their appointment was then ratified by the _lex curiata_. Another explanation is that the _lex_ recited that the kings had appointed quaestors and empowered the consuls to do so. Cf. Ulpian in _Dig._ 1, 13.

[332] Festus p. 246, cited p. 59.

[333] Zonaras (vii. 9) makes Servius Tullius introduce Plebeians into the Senate.

[334] Liv. ii. 1 “Deinde, quo plus virium in senatu frequentia etiam ordinis faceret, caedibus regis diminutum patrum numerum primoribus equestris gradus lectis ad trecentorum summam explevit: traditumque inde fertur, ut in senatum vocarentur qui patres quique conscripti essent: conscriptos videlicet in novum senatum appellabant lectos”; Festus p. 254 “‘Qui patres, qui conscripti’: vocati sunt in curiam, quo tempore regibus urbe expulsis P. Valerius consul propter inopiam patriciorum ex plebe adlegit in numerum senatorum C. et LX. et IIII. ut expleret numerum senatorum trecentorum” (for these numbers cf. Plut. _Public._ 11 τοὺς δ’ ἐγγραφέντας ὑπ’ αὐτοῦ λέγουσιν ἑκατὸν καὶ ἑξήκοντα τέσσαρας γενέσθαι). So _adlecti_, Festus p. 7 “_adlecti_ dicebantur apud Romanos, qui propter inopiam ex equestri ordine in senatorum sunt numero adsumpti: nam patres dicuntur qui sunt patricii generis, conscripti qui in senatu sunt scriptis adnotati.” Plutarch (_Qu. Rom._ 58, _Rom._ 13) makes the added members Plebeians. Tacitus (_Ann._ xi. 25) wrongly identifies these added members with the _minores gentes_. (Claudius creates Patricians A.D. 48—“paucis jam reliquis familiis, quas Romulus majorum et L. Brutus minorum gentium appellaverant.”)

[335] Willems (_Le Sénat_ ii. 39 ff.) makes _patres conscripti_ simply equivalent to “assembled fathers.”

[336] The first clear instance of a plebeian senator dates from the year 401. Liv. v. 12. P. Licinius Calvus, created military tribune with consular power, was “vir nullis ante honoribus usus, vetus tantum senator et aetate jam gravis.” Cf. Liv. iv. 15. Of Sp. Maelius (439 B.C.) it is asked “quem senatorem concoquere civitas vix posset, regem ferret.”

[337] p. 60.

[338] Liv. ii. 18; Festus p. 198; Pompon. in _Dig._ 1, 2, 2, 18.

[339] The title was, perhaps, originally _praetor_. This would naturally have been the case if Mommsen’s theory is right that they were regarded as superior colleagues of the consuls (_Staatsr._ ii. p. 153). The earliest official title known to us is _magister populi_, and it was the technical title in the augural books. Cic. _de Leg._ iii. 3, 9 “isque ave sinistra dictus populi magister esto.” Cf. _de Rep._ i. 40, 63 “Gravioribus vero bellis etiam sine collega omne imperium nostri penes singulos esse voluerunt, quorum ipsum nomen vim suae potestatis indicat. Nam dictator quidem ab eo appellatur quia dicitur; sed in nostris libris vides eum, Laeli, magistrum populi appellari.” The later title, _dictator_, was perhaps adopted in deference to Republican sentiment; Mommsen (_Staatsr._ ii. p. 145) conjectures, in imitation of the Latin dictator, a constitutional survival of the monarchy. The meaning of the word is wholly uncertain. Ancient guesses say (i.) from _dicitur_ (Cic. _de Rep._ l.c.); (ii) from _dicto audiens_ (Varro _L.L._ v. 81 “quoi dicto audientes omnes essent”); (iii.) from _dictare_ (Priscian viii. 14, 78), or (iv.) because they issued edicts (Dionys. v. 73).

[340] Pompon. in _Dig._ 1, 2, 2, 19 “Et his dictatoribus magistri equitum injungebantur sic, quo modo regibus tribuni celerum: quod officium fere tale erat, quale hodie praefectorum praetorio, magistratus tamen habebantur legitimi.”

[341] Cic. _de Leg._ iii. 3, 9 “Ast quando duellum gravius, discordiae civium escunt, oenus, ne amplius sex menses, si senatus creverit, idem juris, quod duo consules, teneto”; Imp. Claudius _Oratio_ i. 28 “Quid nunc commemorem dictaturae hoc ipso consulari imperium valentius repertum apud majores nostros quo in asperioribus bellis aut in civili motu difficiliore uterentur?”

[342] Cicero (_de Rep._ ii. 31, 53) gives as the tenor of the first Valerian law “ne quis magistratus civem Romanum adversus provocationem necaret neve verberaret.” Dionysius (v. 19) adds ζημιοῦν εἰς χρήματα to ἀποκτείνειν ἢ μαστιγοῦν, and Plutarch (_Publ._ 11) seems to give it the same wide scope. He also thinks that Valerius fixed the _multa suprema_ (l.c.), i.e. the largest fine the magistrate could impose without appeal. These statements may, however, be deductions from the later _provocatio_.

[343] Pompon. in _Dig._ 1, 2, 2 (§ 3) “exactis deinde regibus ... omnes leges hae exoleverunt iterumque coepit populus Romanus incerto magis jure et consuetudine aliqua uti quam per latam legem, idque prope quinquaginta (MSS. “viginti”) annis passus est.” After the Twelve Tables (§ 6) “ex his legibus ... actiones compositae sunt, quibus inter se homines disceptarent: quas actiones ne populus prout vellet institueret, certas sollemnesque esse voluerunt ... Omnium tamen harum et interpretandi scientia et actiones apud collegium pontificum erant, ex quibus constituebatur, quis quoquo anno praeesset privatis.”

[344] p. 64.

[345] The later praetorian interdicts (_de locis sacris_, _de mortuo inferendo_) are really within the domain of _fas_ and must at one time have been enforced by the pontiffs.

[346] p. 78.

[347] Mommsen _Staatsr._ iii. p. 93.

[348] p. 35.

[349] The privilege could not have been based on quiritarian ownership, since this tenure was precarious.

[350] The contract of _nexum_ was in fact a conditioned mancipation, like a testament, the _nuncupatio_ being made by the vendor, who perhaps purchased with a single coin (_nummo uno_), as in the later _mancipationes fiduciae causa_ (Bruns _Fontes_).

[351] Except as a penal measure ordained by the state. The _furem manifestum_ according to Gellius (xx. 1), “in servitutem tradit” (lex); he is more correctly described as _addictus_ by Gaius (iii. 189). The _incensus_ might be sold as a slave (Cic. _pro. Caecin._ 34, 99). Later a free man who collusively allowed himself to be sold as a slave, in order to share the purchase money with the vendor, was adjudged a slave as a punishment for his fraud (_Dig._ 40, 13, 3; _Inst._ 1, 3, 4; _Cod._ 7, 18, 1).

[352] p. 24.

[353] Gell. xx. 1 “Aeris confessi rebusque jure judicatis triginta dies justi sunto. Post deinde manus injectio esto, in jus ducito. Ni judicatum facit aut quis endo eo in jure vindicit, secum ducito, vincito aut nervo aut compedibus.... Si volet suo vivito. Ni suo vivit, qui eum vinctum habebit, libras farris endo dies dato. Si volet plus dato.” The _addictus_ like the _nexus_ did not become a slave, but still retained his position in his census and in his tribe (Quinctil. _Decl._ 311).

[354] In the case of a nexal contract there could not be more creditors than one. A man could not, by the nature of the case, mancipate himself to several people at once.

[355] Liv. ii. 23 “Fremebant se, foris pro libertate et imperio dimicantes, domi a civibus captos et oppressos esse; tutioremque in bello quam in pace, et inter hostes quam inter cives, libertatem plebis esse.”

[356] ib. 27.

[357] Dionys. vi. 45.

[358] Liv. ii. 28. The senators complain “nunc in mille curias contionesque (cum alia in Esquiliis, alia in Aventino fiant concilia) dispersam et dissipatam esse rem publicam.”

[359] Varro _L.L._ v. 81 “tribuni plebei, quod ex tribunis militum primum tribuni plebei facti, qui plebem defenderent, in secessione Crustumerina.”

[360] The principle of cooptation was said to have been recognised in the _carmen rogationis_ of the tribunate, and in this case it was held that Patricians were eligible. Liv. iii. 65 (449 B.C.) “Novi tribuni plebis in cooptandis collegis patrum voluntatem foverunt. Duos etiam patricios consularesque, Sp. Tarpeium et A. Aternium, cooptavere.” But, with the disuse of this principle, the plebeian qualification was observed.

[361] Cic. ap. Ascon. _in Cornel._ p. 76 “Tanta igitur in illis virtus fuit, ut anno xvi. post reges exactos propter nimiam dominationem potentium secederent, ... duos tribunos crearent.... Itaque auspicato postero anno tr. pl. comitiis curiatis creati sunt,” (For the number two Ascon. _in loc._ quotes Tuditanus and Atticus.) Cicero apparently understands by this the mixed assembly of the _curiae_; and so does Livy (ii. 56, on the _lex Publilia_ transferring the elections of the tribunes to the tribes), “quae patriciis omnem potestatem per clientium suffragia creandi, quos vellent, tribunos auferret.”

[362] It must have been so restricted at first. Later (as we shall see in dealing with the intercession) the _auxilium_ was extended to the whole people.

[363] Cic. _de Rep._ ii. 33, 58 “contra consulare imperium tribuni plebis ... constituti.”

[364] Gell. xiii. 12 “(tribunis) jus abnoctandi ademptum, quoniam, ut vim fieri vetarent, adsiduitate eorum et praesentium oculis opus erat.” Cf. iii. 2. Plut. _Qu. Rom._ 81 ὅθεν οὐδ’ οἰκίας αὐτοῦ κλείεσθαι νενόμισται θύραν, ἀλλὰ καὶ νύκτωρ ἀνέῳγε καὶ μεθ’ ἡμέραν, ὤσπερ λιμὴν καὶ καταφυγὴ τοῖς δεομένοις.

[365] For the increase to four see Diodor. xi. 68 (471 B.C. in connexion with the _lex Publilia_); other accounts represent the original number as five (Ascon. l.c. p. 93, and Livy ii. 33; two elected, three coopted; cf. note on p. 93). The increase to ten is assigned by Livy and Dionysius to 457 B.C. (Livy iii. 30; the tribunes allowed the levy “non sine pactione tamen ut ... decem deinde tribuni plebis crearentur. Expressit hoc necessitas patribus”; cf. Dionys. x. 30).

[366] Liv. ii. 35 “contemptim primo Marcius audiebat minas tribunicias; auxilii, non poenae, jus datum illi potestati; plebisque, non patrum, tribunos esse.” Coriolanus was probably impeached before the Plebs as a _hostis tribuniciae potestatis_ in consequence of his advice that the tribunate should be abrogated (Liv. ii. 34). See Rein _Criminalrecht_ p. 484. Cf. Liv. ii. 56 (471 B.C.; the tribune seizes some _nobiles_ who would not yield to his _viator_) “Consul Appius negare jus esse tribuno in quemquam, nisi in plebeium; non enim populi, sed plebis, eum magistratum esse.”

[367] Dionys. vii. 17 δημάρχου γνώμην ἀγορεύοντος ἐν δήμῳ μηδεὶς λεγέτω μηδὲν ἐναντίον μηδὲ μεσολαβείτω τὸν λόγον. ἐὰν δὲ τις παρὰ ταῦτα ποιὴσῃ, διδότω τοῖς δημάρχοις ἐγγυητὰς αἰτηθεὶς εἰς ἔκτισιν ἧς ἂν ἐποθῶσιν αὐτῷ ζημίας. Any one who does not give securities (ἐγγυηταί) is to be punished with death καὶ τὰ χρήματ’ αὐτοῦ ἱερὰ ἔστω. τῶν δ’ ἀμφισβητούντων πρὸς ταύτας τὰς ζημίας αἱ κρίσεις ἔστωσαν ἐπὶ τοῦ δήμου. Cf. vi. 16, and Cic. _pro Sest._ 37, 79 “Fretus sanctitate tribunatus, cum se non modo contra vim et ferrum, sed etiam contra verba atque interfationem legibus sacratis esse armatum putaret.”

[368] p. 66 note 5.

[369] Dionys. x. 31, 32; see Mr. Strachan-Davidson in Smith _Dict. of Antiq._ s.v. _plebiscitum_.

[370] p. 39.

[371] Dionys. vi. 90 ἄνδρας ἐκ τῶν δημοτικῶν δύο καθ’ ἕκαστον ἐνιαυτὸν ἀποδεικνύναι τοὺς ὑπηρετήσοντας τοῖς δημάρχοις ὅσων ἂν δέωνται καὶ δίκας, ἅς ἂν ἐπιτρέψωνται ἐκεῖνοι, κρινοῦντας ἱερῶν τε καὶ δημοσίων τόπων καὶ τῆς κατὰ τὴν ἀγορὰν ἐυετηρίας ἐπιμελησομένους: Gell. xvii. 21 “tribunos et aediles tum primum per seditionem sibi plebes creavit”; Pompon. in _Dig._ 1, 2, 2, 21 “Itemque ut essent qui aedibus praeessent, in quibus omnia scita sua plebs deferebat, duos ex plebe constituerunt, qui etiam aediles appellati sunt.”

[372] Dionysius (l.c.) suggests that they originally bore another title. Pomponius (l.c.) derives the name from their office in the temple of Ceres; Varro from their care of the repair of _aedes_ both sacred and private (Varro _L.L._ v. 81 “aedilis, qui aedes sacras et privatas procuraret”), a derivation which Mommsen (_Staatsr._ ii. p. 480) favours. Their relation to the aediles of the Latin towns is wholly uncertain. Mommsen (ib. p. 474) holds strongly to the view that the Latin aedileship was borrowed from the Roman. For a different view cf. Ohnesseit _Ztschr. der Savigny-stiftung_ 1883, pp. 200 sq.

[373] Plut. _Coriol._ 18 (the tribune Sicinnius) προσέταξε τοῖς ἀγορανόμοις ἀναγαγόντας αὐτὸν ἐπὶ τὴν ἄκραν εὐθὺς ὦσαι κατὰ τῆς ὑποκειμένης φάραγγος. So later in the trial of P. Scipio. Liv. xxix. 20; xxxviii. 52.

[374] Liv. iii. 31 (456 B.C.; the consuls sell booty taken from the Aequi) “itaque ergo, ut magistratu abiere ... dies dicta est, Romilio ab C. Calvio Cicerone, tribuno plebis, Veturio ab L. Alieno, aedile plebis.”

[375] Yet Livy attributes both to the fifth century; they perform police-duties in the year 463 (Liv. iii. 6), and are entrusted with the care of the state religion in 428 (Liv. iv. 30).

[376] Livy, however (iii. 55, cited note 2), represents the _sacrosanctitas_ of the aediles as being based only on law.

[377] Dionys. vi. 89. The _sacrosanctitas_ of the tribune is guaranteed νόμῳ τε καὶ ὅρκῳ. Cf. App. _B.C._ ii. 108 ἡ τῶν δημάρχων ἀρχὴ ἱερὰ καὶ ἄσυλος ἦν ἐκ νόμου καὶ ὅρκου παλαιοῦ. For these two grounds of inviolability see Liv. iii. 55 (restoration of tribunate in 449) “et cum religione inviolatos eos, tum lege etiam fecerunt, sanciendo ‘ut qui tribunis plebis, aedilibus, judicibus, decemviris nocuisset, ejus caput Jovi sacrum esset, familia ad aedem Cereris, Liberi Liberaeque venum iret.’ Hac lege juris interpretes negant quemquam sacrosanctum esse; sed eum, qui eorum cuiquam nocuerit, sacrum sanciri. Itaque aedilem prendi ducique a majoribus magistratibus: quod etsi non jure fiat (noceri enim ei, cui hac lege non liceat) tamen argumentum esse, non haberi pro sacro sanctoque aedilem: tribunos vetere jurejurando plebis, cum primum eam potestatem creavit, sacrosanctos esse” (cf. Liv. ii. 33 “sacratam legem latam” on the Mons Sacer).

[378] Resistance to the will of a _magistratus populi_ is not _perduellio_ in later Roman law, but rather _vis_. But resistance to the tribune is always _majestas_.

[379] Dionys. vii. 17. See p. 96.

[380] Liv. ii 56 (Publilius Volero) “rogationem tulit ad populum, ut plebei magistratus tributis comitiis fierent” (followed by the words cited on p. 94).

[381] This is Livy’s view (l.c.), “nec, quae una vis ad resistendum erat, ut intercederet aliquis ex collegio ... adduci posset.”

[382] The ground of objection given by Livy (ii. 56, cited p. 94) rests on the belief that the tribunes had been formerly elected by the _comitia curiata_.

[383] Aemilia, [Camilia], Claudia, Cornelia, Fabia, [Galeria], Horatia, [Lemonia], Menenia, Papiria, [Pollia], [Pupinia], Romulia or Romilia, Sergia, [Voltinia], Voturia or Veturia (from Momms. _Staatsr._ iii. p. 168; the names he encloses in brackets are those to which there are no extant patrician _gentes_ to correspond).

[384] Dionys. vii. 64.

[385] Momms. _Staatsr._ iii. p. 153.

[386] See Appendix.

[387] Livy (iii. 9) says, “ut vviri creentur legibus de imperio consulari scribendis.” Even if this expression is due to a misunderstanding of the title of the decemvirs, “consulari imperio legibus scribendis” (Momms. _Staatsr._ ii. p. 702), it no doubt expresses a fact. For the nature and object of the decemvirate see Pompon. in _Dig._ 1, 2, 2, 4 (of the appointment of the decemvirs) “datumque est eis jus eo anno in civitate summum, uti leges et corrigerent, si opus esset, et interpretarentur neque provocatio ab eis sicut a reliquis magistratibus fieret”; ib. (of the publication of the laws) “quas in tabulas eboreas perscriptas pro rostris composuerunt, ut possint leges apertius percipi.” Cf. Dionys. x. 1, 60.

[388] Livy (iii. 11, 26, and 29) seems to speak of the law not being allowed to pass the Plebs; but then he does not recognise the two stages of legislation. See p. 97.

[389] Liv. iii. 31.

[390] ib. 33; cf. Momms. _Staatsr._ ii. p. 714.

[391] Liv. iii. 32 “postremo concessum patribus, modo ne lex Icilia de Aventino, aliaeque sacratae leges abrogarentur.” As to the _sacratae leges_, the aedileship would have gone with the tribunate; and there was nothing more to be protected by the _leges sacratae_.

[392] Their title was _Decemviri consulari imperio legibus scribendis_ (Capitoline Fasti). Cf. Liv. iii. 32 (“placet creari xviros sine provocatione, et ne quis eo anno alius magistratus esset”) and Pompon. in _Dig._ (cited p. 102).

[393] Liv. iii. 34 “se ... omnibus, summis infimisque jura aequasse.”

[394] Dionys. x. 58; Liv. iii. 35.

[395] Liv. iii. 57. The accounts of the material of the “Tables” vary. Livy (l.c.) says “in aes incisas in publico proposuerunt”; Pomponius (in _Dig._, cited p. 102) says “in tabulas eboreas perscriptas” (perhaps _roboreas_ or _aereas_, Kipp, _Quellenkunde des R.R._ p. 8). It is possible that they were of wood.

[396] Liv. iii. 34 “fons omnis publici privatique est juris”; Tac. _Ann._ iii. 27 “creatique decemviri et accitis quae usquam egregia compositae duodecim tabulae, finis aequi juris.”

[397] Cic. _de Leg._ ii. 23, 59 “Discebamus enim pueri XII, ut carmen necessarium; quas jam nemo discit.”

[398] Liv. iii. 34.

[399] p. 19.

[400] Ulpian _Reg._ ii. 4.

[401] p. 10.

[402] p. 91.

[403] Cato _R.R._ praef.

[404] Plin. _H.N._ xviii. 3, 12.

[405] Cic. _de Rep._ iv. 12.

[406] Gell. xx. 1.

[407] Marcian in _Dig._ 48, 4, 3 “Lex duodecim tabularum jubet eum, qui hostem concitaverit quive civem hosti tradiderit, capite puniri.”

[408] Pompon. in _Dig._ 1, 2, 2, 23. See p. 80.

[409] Cic. _de Rep._ ii. 31, 54 “ab omni judicio poenaque provocari licere indicant XII Tabulae compluribus legibus.”

[410] Cic. _de Leg._ iii. 4, 11.

[411] _Decl. in Catil._ 19.

[412] This rule is said to have been taken from a law of Solon’s (Gaius in _Dig._ 47, 22, 4). Other traces of Greek influence are perhaps to be found in the sumptuary regulations, especially those about funerals, and perhaps in the prohibition of interment within the city. Gaius finds also a Solonian parallel to the _actio finium regundorum_ ordained by the law (_Dig._ 10, 1, 13).

[413] Liv. vii. 17 “in duodecim tabulis legem esse, ut quodcumque postremum populus jussisset, id jus ratumque esset.”

[414] Liv. iii. 53.

[415] ib. 54 “ibi extemplo, pontifice maximo comitia habente, tribunos plebis creaverunt.”

[416] ib. “Confestim de consulibus creandis cum provocatione M. Duilius rogationem pertulit.” Such a resolution would not need confirmation by the people, as, after the fall of the decemvirs, an _interregnum_ would naturally ensue; and this was a matter for the Senate. But Livy also represents the tribune as (in accordance with a _senatus consultum_) passing the act of amnesty, iii. 54 “Tribunatu inito, L. Icilius extemplo plebem rogavit, et plebs scivit, ne cui fraudi esset secessio ab decemviris facta.” In later Roman law amnesty resides with the Senate.

[417] Liv. iii. 55 “ne quis ullum magistratum sine provocatione crearet, qui creasset, eum jus fasque esset occidi: neve ea caedes capitalis noxae haberetur.”

[418] p. 79.

[419] p. 79.

[420] p. 99.

[421] Liv. iii. 55 “omnium primum, cum velut in controverso jure esset, tenerenturne patres plebiscitis, legem centuriatis comitiis tulere ‘ut quod,’” etc. Cf. Dionys. xi. 45.

[422] Mr. Strachan-Davidson in Smith _Dict. of Antiq._ s.v. _plebiscitum_, and _English Historical Review_ Nos. 2 and 19.

[423] p. 97.

[424] p. 107.

[425] Types of such laws between 449 and 287 B.C. are the _lex Terentilia_ (462), _Canuleia_ (445), _Licinia_ (367), _Ogulnia_ (300).

[426] Liv. iii. 55 “M. Duilius deinde tribunus plebis plebem rogavit, plebesque scivit: ‘qui plebem sine tribunis reliquisset, quique magistratum sine provocatione creasset, tergo ac capita puniretur.’”

[427] Liv. iv. 1 “de conubio patrum et plebis C. Canuleius tribunus plebis rogationem promulgavit.”

[428] See p. 39 and cf. Liv. iv. 6; the consuls (in a _contio_) gave as the official reason “quod nemo plebeius auspicia haberet; ideoque decemviros conubium diremisse, ne incerta prole auspicia turbarentur.”

[429] Liv. iv. 1 “et mentio, primo sensim inlata a tribunis, ut alterum ex plebe consulem liceret fieri, eo processit deinde, ut rogationem novem tribuni promulgarent, ‘ut populo potestas esset, seu de plebe, seu de patribus vellet, consules faciendi.’”

[430] The situation at the beginning of the year thus is described by Livy (iv. 2), “eodem tempore et consules senatum in tribunum, et tribunus populum in consules incitabat.” At last (Liv. iv. 6) “victi tandem patres, ut de conubio ferretur, consensere.”

[431] Liv. iv. 6.

[432] ib. 35.

[433] Claudius in _Tab. Lugd._ “quid (commemorem) in pluris distributum consulare imperium tribunosque militum consulari imperio appellatos, qui seni et saepe octoni crearentur.”

[434] Livy sometimes speaks of eight (v. 1, vi. 27); cf. _Tab. Lugd._ cited note 3. It is probable that this number includes the six tribunes and the two censors (Momms. _Staatsr._ ii. p. 184); e.g. Livy gives eight for the year 403, the Fasti Capitol. for the same year (351 A.U.C. _C.I.L._ i. p. 428) six and two censors.

[435] Pompon. in _Dig._ 1, 2, 2, 25 “cum ... plebs contenderet cum patribus et vellet ex suo quoque corpora consules creare, et patres recusarent, factum est ut tribuni militum crearentur partim ex plebe, partim ex patribus consulari potestate.”

[436] Liv. v. 12. This is maintained to be an error by Mommsen, _Röm. Forsch._ i. 66; _Staatsr._ ii. p. 188. He holds that in 445 B.C. one L. Atilius Longus was a Plebeian, and that in 400, 399, 396 the Plebeians had a majority. Livy’s view is upheld by Willems _Le Sénat_ i. 58-60.

[437] If it be taken to prove that the preponderance of voting power in the _comitia centuriata_ was still on the side of the Patricians, it would throw a valuable side-light on the relative economic position of the two orders.

[438] _Imperium_ (_Tab. Lugd._ quoted p. 112); _potestas_ (Liv. iv. 6); _jus_ (Tac. _Ann._ i. 1).

[439] Liv. iv. 7 “et imperio et insignibus consularibus usos.”

[440] ib. v. 13, 52.

[441] “Proconsularis imago” (Liv. v. 2).

[442] Zonar. vii. 19.

[443] Liv. iv. 55 “pervincunt, ut senatus consultum fiat de tribunis militum creandis”; iv. 12 “cum ... obtinuisset, ut consulerentur patres, consulum an tribunorum placeret comitia haberi.” Dionysius (xi. 60) represents the people as being consulted too.

[444] i.e. in accordance with the law, if there was one, establishing the office.

[445] Momms. _Staatsr._ ii. p. 191.

[446] Liv. iv. 8 “ortum autem initium est rei, quod in populo, per multos annos incenso, neque differri census poterat, neque consulibus, cum tot populorum bella imminerent, operae erat id negotium agere.” Cf. Dionys. xi. 63.

[447] Liv. l.c. “Idem hic annus censurae initium fuit, rei a parva origine ortae.”

[448] Liv. iv. 24. Mommsen indeed thinks (_Staatsr._ ii. p. 349) that this _lex Aemilia_ first made the censorship an independent magistracy with a fixed tenure. It was probably an independent magistracy before, but with no fixed tenure. Hence the belief that the censors originally held office for five years, the period of the _lustrum_ (Liv. l.c., cf. ix. 34).

[449] pp. 81, 102.

[450] Liv. iv. 43 (discord between the Patres and the Plebs) “exorta est, coepta ab duplicando quaestorum numero ... praeter duos urbanos quaestores duo ut consulibus ad ministeria belli praesto essent.” The tribunes demanded “ut pars quaestorum ... ex plebe fieret.” The compromise arrived at was that “quattuor quaestores promiscue de plebe ac patribus libero suffragio populi fierent.”

[451] ib. 54. The Plebs, indignant at the election of consuls in place of military tribunes, “eum dolorem quaestoriis comitiis simul ostendit, et ulta est, tunc primum plebeiis quaestoribus creatis: ita ut, in quattuor creandis, uni patricio K. Fabio Ambusto relinqueretur locus.” For the election at the _comitia tributa_ see p. 102.

[452] p. 83 note 2.

[453] Liv. iv. 25. The _principes plebis_, in despair at the choice of the military tribunate always falling on Patricians, came to the conclusion that it was “ambitione artibusque” of the Patricians. Hence a tribunician measure “ne cui album in vestimentum addere petitionis liceret causa.” After great resistance “vicere tribuni ut legem perferrent.”

[454] “Principes plebis” (Liv. l.c.).

[455] ib. vi. 31 “conditiones impositae patribus, ne quis, quoad bellatum esset, tributum daret, aut jus de pecunia credita diceret.”

[456] ib. 35 “omnium igitur simul rerum, quarum immodica cupido inter mortales est, agri, pecuniae, honorum, discrimine proposito, conterriti patres, etc.”

[457] Liv. vi. 37 “Novam rogationem promulgant, ut pro duumviris sacris faciundis decemviri creentur; ita ut pars ex plebe, pars ex patribus fiat.”

[458] ib. 38. His statements are inconsistent. He speaks of the college as being unanimous, and yet of _intercessio_ being used at the meeting.

[459] Liv. vi. 42 “concessum ... a plebe nobilitati de praetore uno, qui jus in urbe diceret, ex patribus creando,” probably by a clause introduced into the Licinian rogations when they were submitted by the consul to the Populus (see p. 97). The true motive is given by Pomponius in _Dig._ 1, 2, 2, 27, “Cum consules avocarentur bellis finitimis neque esset, qui in urbe jus reddere posset, factum est ut praetor quoque crearetur, qui urbanus appellatus est, quod in urbe jus redderet.”

[460] Mommsen (_Staatsr._ ii. p. 204) doubts it, chiefly on the ground that no law is mentioned as opening the office to Plebeians thirty years later. Probably the same doubt hung over the praetorship as over the second place in the consulship, i.e. whether the Licinian law, by reserving one consulship to the Plebs, had left the other posts open to both orders or not.

[461] Liv. vii. 1 “collegam consulibus atque iisdem auspiciis creatum.” Cf. Gell. xiii. 15.

[462] An instance of the exercise of a consular veto over a judicial decision of a praetor in 77 B.C. is preserved by Valerius Maximus (vii. 7, 6).

[463] Liv. viii. 15 “eodem anno Q. Publilius Philo praetor primus de plebe, adversante Sulpicio consule, qui negabat rationem ejus se habiturum, est factus; senatu, cum in summis imperiis id non obtinuisset, minus in praetura intendente.”

[464] p. 98.

[465] Liv. vi. 42 “Factum senatus consultum, ut duo viros aediles ex patribus dictator populum rogaret.”

[466] ib. vii. 1 (366 B.C.) “verecundia inde imposita est senatui ex patribus jubendi aediles curules creari. primo, ut alternis annis ex plebe fierent, convenerat; [this was the rule in 213 (Polyb. x. 4)]. postea promiscuum fuit” [Mommsen (_Staatsr._ ii. p. 482) thinks as late as the last century of the Republic].

[467] ib. 17 “dictator C. Marcius Rutilus primus de plebe dictus”; he appointed a plebeian master of the horse.

[468] ib. 22. The same C. Marcius Rutilus “professus censuram se petere” was elected.

[469] ib. viii. 12 “ut alter utique ex plebe ... censor crearetur.”

[470] ib. _Ep._ 59 “Q. Pompeius et Q. Metellus, tunc primum utrique ex plebe facti, censores lustrum condiderunt.”

[471] Liv. vii. 42. The law was proposed by the tribune L. Genucius. It was not, however, until the year 172 B.C. that both consuls were plebeian (Liv. xlii. 9; Fast. Cap. _C.I.L._ i. 1 p. 25).

[472] p. 52.

[473] Livy (x. 6) marvels at the fact; he thinks that it must have been accidental (“morte duorum”), since the augural college should have consisted of three or of a multiple of three. Cicero (_de Rep._ ii. 9, 16) says that Romulus coopted (_cooptavit_) one from each of the three tribes; they were therefore four; that Numa added two (ib. ii. 14, 26). This makes six, which Livy (l.c.) thinks the normal number at the time of the passing of the Ogulnian law.

[474] Liv. x. 6. These numbers remained unaltered until the time of Sulla (81 B.C.), who raised the colleges of pontiffs and augurs to fifteen (Liv. _Ep._ 89). A sixteenth was added to both colleges by Julius Caesar (Dio Cass. xlii. 51).

[475] Liv. xxxiii. 42. The number was afterwards increased to seven, from which time the college was known as that of the _VIIviri epulones_.

[476] Marquardt _Staatsverw._ iii. p. 333.

[477] Liv. iii. 32 “augur (mortuus est) C. Horatius Pulvillus; in cujus locum C. Veturium eo cupidius, quia damnatus a plebe erat, augures legere.” The _pontifex maximus_ was early an exception to this rule; see the _comitia sacerdotum_ in the section dealing with the people.

[478] Cic. _de Leg. Agr._ ii. 7, 18; Vell. ii. 12.

[479] Liv. viii. 12.

[480] p. 109.

[481] Mr. Strachan-Davidson conjectures that the law of Publilius Philo “may have struck out the intervening consultation of the Senate, and may have required the consul to bring the petition of the Plebs at once before the Populus” (Smith _Dict. of Antiq._ s.v. _plebiscitum_, ii. p. 439).

[482] p. 83.

[483] The only evidence that they were is furnished by Livy’s account of a _lex Manlia_ of 357 B.C. (Willems _Droit Public_ p. 183). See Liv. vii. 16 (Manlius the consul) “legem, novo exemplo ad Sutrium in castris tributim de vicesima eorum, qui manumitterentur, tulit. Patres, quia ea lege haud parvum vectigal inopi aerario additum esset, auctores fuerunt.”

[484] ib. viii. 12 “ut legum, quae comitiis centuriatis ferrentur, ante initum suffragium patres auctores fierent.”

[485] Cic. _Brut._ 14, 55. Cf. Liv. i. 17 “hodie ... in legibus magistratibusque rogandis usurpatur idem jus (the _patrum auctoritas_), vi adempta.”

[486] Laelius Felix ap. Gell. 15, 27 “(plebi scitis) ante patricii non tenebantur, donec Q. Hortensius dictator legem tulit, ut eo jure quod plebs statuisset, omnes quirites tenerentur”; Plin. _H.N._ xvi. 10, 37 “ut quod ea (plebs) jussisset, omnes quirites teneret.”

[487] Gaius i. 3 “olim patricii dicebant plebi scitis se non teneri, quia sine auctoritate eorum facta essent; sed postea lex Hortensia lata est, qua cautum est, ut plebi scita universum populum tenerent, itaque eo modo legibus exaequata sunt”; Pompon. in _Dig._ 1, 2, 2, 8 “pro legibus placuit et ea (plebiscita) observari lege Hortensia: et ita factum est, ut inter plebis scita et legem species constituendi interesset, potestas autem eadem esset.”

[488] Pompon. l.c.

[489] The _lex Agraria_ of 111 B.C. (Bruns _Fontes_) thus refers to a _lex Sempronia_ of 123 B.C., “[ex] lege plebeive scito, quod C. Sempronius Ti. f. tr. pl. rogavit.” Cf. _lex Rubria_ (ib.) “ex lege Rubria seive id pl. sc. est.”

[490] Thus Cicero, exiled by a _plebiscitum_, was restored by a _lex centuriata_. See the section on the people.

[491] Of the many instances one of the most remarkable is to be found in Sall. _Jug._ 84, “Marius ... cupientissima plebe consul factus, postquam ei provinciam Numidiam populus jussit.” Here _plebs_ should be _populus_ and _populus_, _plebs_.

[492] “Legislative” is here used in the modern sense. At Rome a judicial and elective act of the people was equally a _lex_.

[493] At least in 304 B.C. they had no right of _relatio_ with the Senate (Liv. ix. 46).

[494] Gaius iv. 23.

[495] Varro _L.L._ viii. 105 “Hoc (the condition of _nexum_) C. Poetilio Libone Visolo dictatore (313 B.C.) sublatum ne fieret; et omnes, qui bonam copiam jurarunt, ne essent nexi dissoluti.” Livy (viii. 28), who attributes the measure to 326 B.C., makes it a universal release of _nexi_: “jussique consoles ferre ad populum, ne quis, nisi qui noxam meruisset, donec poenam lueret, in compedibus aut in nervo teneretur: pecuniae creditae bona debitoris, non corpus obnoxium esset.”

[496] Liv. ix. 46 “Cn. Flavius ... patre libertino ... civile jus, repositum in penetralibus pontificum, evulgavit, fastosque circa forum in albo proposuit, ut quando lege agi posset, sciretur”; Pompon. in _Dig._ 1, 2, 2, 7 “postea cum Appius Claudius composuisset (for “proposuisset”) et ad formam redegisset has actiones, Cn. Flavius scriba ejus libertini filius subreptum librum populo tradidit ... hic liber, qui actiones continet, appellator jus civile Flavianum.”

[497] Pompon. l.c. §§ 37, 38. Gaius Scipio Nasica was given a house for consultations. The first professor, Ti. Coruncanius (“qui primus profiteri coepit,” circ. 280 B.C.), was also the first plebeian _pontifex maximus_.

[498] Polyb. vi. 53.

[499] Cic. _in Verr._ v. 14, 36 “togam praetextam, sellam curulem, jus imaginis ad memoriam posteritatemque prodendae.”

[500] In other words, images of other than curule ancestors might be set up in the _atrium_.

[501] p. 22.

[502] Sallust. _Jug._ 95 (of Sulla) “gentis patriciae nobilis fuit, familia prope jam exstincta majorum ignavia.”

[503] Cic. _pro Mur._ 7. 16; Ascon. _in Scaurian_. p. 22.

[504] Dionys. vii. 71.

[505] Cf. Cic. _de Off._ ii. 17, 58 “Vitanda tamen suspicio est avaritiae. Mamerco, homini divitissimo, praetermissio aedilitatis consulatus repulsam attulit.”

[506] Liv. xxii. 34 (of the election of Varro, 217 B.C.) “Patres summa ope obstabant, ne se insectando sibi aequari adsuescerent homines.”

[507] Sallust. _Jug._ 63 “consulatum nobilitas inter se per manus tradebat; novus nemo tam clarus neque tam egregiis factis erat, quin indignus illo honore, et is quasi pollutus, haberetur.”

[508] Cic. _pro Domo_ 14, 38 “Ita populus Romanus brevi tempore, neque regem sacrorum, neque flamines, neque salios habebit, nec ex parte dimidia reliquos sacerdotes, neque auctores centuriatorum et curiatorum comitiorum: auspiciaque populi Romani, si magistratus patricii creati non sint, intereant necesse est, cum interrex nullus sit, quod et ipsum patricium esse et a patriciis prodi necesse est.” The passage is closely followed by Livy vi. 41, in the speech against the Licinio-Sextian laws, with which he credits Appius Claudius. We meet with other archaic survivals in connexion with the Senate—the distinction, e.g., between the “greater and lesser _gentes_” (p. 12) was never lost, and the chief of the Senate, the first member on the list, was always chosen from the _gentes majores_ (see p. 12).

[509] Ulpian _Reg._ v. 8 “conubio interveniente liberi semper patrem sequuntur; non interveniente conubio matris conditioni accedunt, excepto eo qui ex peregrino et cive Romana peregrinus nascitur, quoniam lex Mensia [“Minicia” has been read in the Veronese palimpsest of the parallel passage of Gaius i. 78, ed. Krueger and Studemund] ex alterutro peregrino natum deterioris parentis conditionem sequi jubet.”

[510] Or, in the Principate, an administrative act. See the section on the powers of the Princeps.

[511] p. 6.

[512] Beloch _Der Italische Bund_ pp. 101, 102.

[513] Tac. _Ann._ xi. 25; Beloch op. cit. p. 78. According to Beloch (l.c.) a comparison between the ante-imperial and post-imperial census is vitiated by the fact that the _aerarii_ were excluded from the former, included in the latter. See the section on the censor.

[514] _Lex Acilia Repetundarum_ 1. 76.

[515] Cic. _pro Balbo_ 10, 25 “quod iis ... liceat, si populus Romanus permiserit, ut ab senatu, ab imperatoribus nostris, civitate donentur.”

[516] Cic. _Brut._ 20, 79; _pro Balbo_ 21, 48.

[517] See the section dealing with the _comitia_.

[518] Suet. _Aug._ 40; Senec. _de Vit. Beat._ 24.

[519] It implied the _imperium_. At Rome these magistrates would be consul, praetor, dictator, or interrex; in the provinces the governors.

[520] Gaius iv. 16.

[521] “Praetor addicit libertatem.” See Cic. _ad Att._ vii. 2, 8.

[522] For the censor as such had no power to confer freedom (Mommsen _Staatsr._ ii. p. 374). Cicero (_de Orat._ i. 40, 183) mentions the juristic controversy whether the slave was free from the moment of the announcement or from the _lustrum_, which gave validity to the censorian ordinances. _Servi publici_ were manumitted by the magistrates, but whether by the consul only or by any magistrate is unknown (Momms. _Staatsr._ i. p. 321). The greatest instance of state emancipation is that of the _Volones_ in 214 B.C. (Liv. xxiv. 16).

[523] In the first case it is called _directa libertas_ (_Dig._ 40, 4, 35), in the second _libertas fidei commissa_ (Dig. 40, 4, 11).

[524] Theophilus (i. 5, 4) calls them φυσικοὶ τρόποι ἐλευθερίας.

[525] Suet. _Claud._ 24 (Claudius said that App. Caecus, censor in 312 B.C., had chosen the sons of _libertini_ for the Senate) “ignarus, temporibus Appii et deinceps aliquamdiu, ‘libertinos’ dictos, non ipsos, qui manu mitterentur, sed ingenuos ex his procreatos.”

[526] Justin. _Inst._ i. 4 “qui statim ut natus est liber est”; Cic. _de Nat. Deor._ iii. 18, 45 “in jure civili, qui est matre libera, liber est.” This is the sense in which Cincius (_ap. Fest._ p. 241) and Livy (x. 8) declare _patricius_ to have been originally equivalent to _ingenuus_. See p. 5.

[527] The _s(ine) p(atre) filii_ of Gaius (i. 64) and Plutarch (_Qu. Rom._ 103) was a conjecture of the jurists based on the abbreviated form of _sp(urii) filii_ (Momms. _Staatsr._ iii p. 72 n. 4). _Spurii filii_ was the official designation, while _liberi naturales_ denoted the natural relationship to the father (Meyer _Der römische Concubinat_).

[528] p. 35.

[529] p. 131.

[530] p. 45.

[531] p. 98.

[532] _Lex Coloniae Genetivae_ (a foundation of Caesar’s in 44 B.C. at Osuna in Spain) c. 98 “Quamcumque munitionem decuriones hujusce coloniae decreverint ... eam munitionem fieri liceto, dum ne amplius in annos singulos ... operas quinas ... decernant.”

[533] The other chief personal burdens are guardianship (_tutela_) and serving on juries; but the consideration of both belongs rather to civil and criminal than to public law.

[534] p. 69.

[535] p. 74.

[536] p. 73.

[537] Liv. xxxiii. 42 (196 B.C.) “Pecunia opus erat, quod ultimam pensionem pecuniae in bellum conlatae persolvi placuerat privatis.” Cf. v. 20 and Plin. _H.N._ xxxiv. 6.

[538] Cic. _de Off._ ii. 22, 76 “Paulus tantum in aerarium pecuniae invexit, ut unius imperatoris praeda finem attulerit tributorum”; Plutarch, _Paul._ 38.

[539] _Lex Acilia Repetundarum_ c. 79; amongst the rewards granted to a Latin who prosecuted successfully under this law are “militiae munerisque poplici in sua quojusque ceivitate vocatio immunitasque.”

[540] Cic. _pro Caec._ 34.

[541] Cic. l.c.; _de Orat._ i. 40.

[542] Cic. _pro Caec._ 34; Dionys. iv. 15

[543] p. 32.

[544] Eisele _Beiträge zur römischen Rechtsgeschichte_ p. 205.

[545] Gaius i. 159-162; Ulp. xi. 10-13.

[546] p. 31.

[547] For the form of _deditio_ see Liv. ix. 10; App. _de Reb. Hisp._ 83. The references are to the two great historic instances at the Caudine Forks (321) and Numantia (137).

[548] Liv. xxxviii. 42 (188 B.C.) “eo anno L. Minucius Myrtilus et L. Manlius, quod legatos Carthaginienses pulsasse dicebantur, jussu M. Claudii praetoris urbani per fetiales traditi sunt legatis, et Carthaginem avecti.”

[549] ib. v. 36; Suet. _Caes._ 24.

[550] p. 138.

[551] p. 91.

[552] Gaius i. 159.

[553] Cic. _pro Balbo_ 11, 28; _pro Caec._ 34, 100.

[554] p. 55.

[555] Ulp. _Reg._ xi. 13 “per quam, et civitate et libertate salva, status dumtaxat hominis mutatur.” Cf. Gaius i. 162.

[556] p. 32.

[557] i.e. by _adrogatio_, see p. 32.

[558] Justin. _Inst._ i. 12, 5 “postliminium fingit eum qui captus est semper in civitate fuisse”; Gaius i. 129 “hi qui ab hostibus capti sunt, si reversi fuerint, omnia pristina jura recipiunt.”

[559] p. 18.

[560] Cic. _pro Mur._ 12, 27 “mulieres omnes propter infirmitatem consilii majores in tutorum potestate esse voluerunt; hi invenerunt genera tutorum, quae potestate mulierum continerentur.”

[561] By the _jus postliminii_; see p. 140.

[562] Plaut. _Capt. Prol._ 34.

[563] Liv. x. 42, 46.

[564] Caesar _B.G._ iii. 16.

[565] Polyb. xxx. 15 (Paulus) πέντε δὲ καὶ δέκα μυριάδας ἀνθρώπων ἐξανδραποδίσασθαι.

[566] Strabo xiv. p. 668.

[567] Marquardt _Privatleben_ pp. 135 sq.

[568] Appian _B.C._ i. 8.

[569] Gaius in _Dig._ 50, 17, 133 “melior condicio nostra per servos fieri potest, deterior fieri non potest.”

[570] Gaius iv. 69-74; Justin. _Inst._ iv. 7.

[571] Cic. _Part. Orat._ 34, 118; _pro Cluent._ 63, etc. As, however, the master’s consent had to be obtained, the evidence and torture of slaves in the public courts were rare. In domestic jurisdiction the inquisition on slaves was held before a family _consilium_.

[572] Gaius iii. 210, 217, 222, 223.

[573] Cato _R.R._ 5; Dionys. vii. 69.

[574] Cic. _ad Fam._ iv. 12; Tac. _Ann._ xiv. 42.

[575] Liv. xliii. 16; Gell. xiii. 13. For _servi publici_ in the municipal towns see _Lex Coloniae Genetivae_ c. 62.

[576] _Actor publicus_, in Rome (Tac. _Ann._ ii 30); in the municipal towns (Plin. _Ep._ vii, 18, 2).

[577] _Libertinus_ describes the freedman’s political position, _libertus_ his relation to his master.

[578] Ulp. in _Dig._ 1, 16, 9, 3.

[579] Macer in _Dig._ 48. 2, 8; Paul. _Sent._ v. 15, 3.

[580] Ulp. in _Dig._ 2, 4, 4, 1 “Praetor ait ‘parentem, patronum, patronam, liberos parentes patroni patronae in jus sine permissu meo ne quis vocet.’”

[581] Gaius iii. 40-44.

[582] Ulp. in _Dig._ 38, 2, 1, 1. Mommsen (_Staatsr._ iii. p. 433) thinks that the author of the change was the famous P. Rutilius Rufus, consul 105 B.C.

[583] Suet. _Caes._ 48; Val. Max. 6, 1, 4. Willems (_Droit Public_ i. p. 125 n. 8) remarks that there is nothing to show that this power was exercised over _justi liberti_. The freedmen so punished may have been informally manumitted. For the relegation of a freedman by his _patronus_ see Tac. _Ann._ xiii 26.

[584] Cf. Plut. _Poplic._ 7. Plutarch, in this story of the imaginary freedman Vindicius, represents his class as having no voting rights at the beginning of the Republic. Appius Claudius (312 B.C.), he says, first gave them ἐξουσίαν ψήφου: but he does not state the assemblies in which this right was exercised.

[585] See the section on the censor (p. 223).

[586] Liv. ix. 46.

[587] ib.; Val. Max. ii. 2, 9. Nothing is said about their division into _classes_; according to the arrangement of the reformed _comitia centuriata_ (see the section on the _comitia_), this restriction to four tribes would have given them the command of only forty centuries.

[588] Liv. xlv. 15.

[589] _Auct. de Vir. Ill._ 72 (M. Aemilius Scaurus) “consul legem de sumptibus et libertinorum suffragiis tulit”; Willems _Droit Public Rom._ p. 123.

[590] Dio Cass. xxxvi. 25.

[591] Liv. _Ep._ 84.

[592] Exceptions due to the stress of times are mentioned for the years 296 (Liv. x. 21) and 217 (Liv. xxii. 11). Even in the social war they formed cohorts separate from the legions.

[593] First mentioned in 217 B.C. (Liv. xxii. 11).

[594] See the section on the magistracy (p. 184).

[595] e.g. the institution of the censor, praetor, curule aediles, and (although they are not a part of the developed constitution), the consular tribunes.

[596] p. 121.

[597] Cic. _ad Att._ ix. 9, 3 “in libris (i.e. the augural books) habemus non modo consules a praetore, sed ne praetores quidem creari jus esse.”

[598] p. 47.

[599] p. 47.

[600] See the section on the magistracy (p. 165).

[601] Cic. _de Leg._ iii. 3, 9 “ast quando consoles magisterve populi (i.e. dictator) nec escunt, auspicia patrum sunto, ollique ex se produnto qui comitiatu creare consules rite possint”; _ad Brut._ i. 5, 4 “dum unus erit patricius magistratus, auspicia ad patres redire non possunt.”

[602] In 43 B.C., on the deaths of Hirtius and Pansa, this communication could not be made in time. Hence the extraordinary measure of appointing two _privati_ with _consularis potestas_ to hold the election for the consulship (Dio Cass, xlvi. 45).

[603] The _senatus consultum_ containing this suggestion might be vetoed by one of the tribunes. Ascon, _in Milon._ p. 32 “dum ... Pompeius ... et T. Munatius tr. pl. referri ad senatum de patriciis convocandis qui interregem proderent non essent passi.”

[604] p. 47.

[605] Liv. v. 31, 8 “interrex creatur M. Furius Camillus.”

[606] The technical expression _prodere interregem_ refers in Republican times, not only to the appointment of the first interrex by election, but to the nomination of each of the other _interreges_ by his predecessor (Liv. vi. 41; v. 31).

[607] Liv. vi. 1; viii. 23.

[608] Cic. _pro Dom._ 14, 38, quoted p. 131.

[609] Willems _le Sénat_ ii. pp. 14, 16.

[610] p. 126.

[611] See Appendix on the _comitia tributa_.

[612] p. 89.

[613] The power of this body was much increased by the long wars waged in West and East; but its ascendency was assured before these wars began. See the section on the Senate.

[614] For an instance of its cumulative use see Cic. _in Verr._ act. i. 13, 37 “erit tunc consul Hortensius cum summo imperio et potestate”; for one of its disjunctive uses see _Dig._ 4, 6, 26, 2 “consulem praetorem ceterosque qui imperium potestatemve quam habent.”

[615] p. 79.

[616] Mommsen (_Staatsr._ i. p. 203) denies the right of the quaestor to issue edicts; but the absence of distinct mention of quaestorian edicts is no ground for denying him what appears to have been a common magisterial right.

[617] For the pro-magistrates see the sections on the consuls and the provinces.

[618] In the course of the Republic _imperium_ came to denote _par excellence_ command abroad, as was natural, since here alone the power was unshackled. Hence the phrase _cum imperio_ esse descriptive of a magistrate who can assert this latent power (Cic. _ad Fam._ viii. 8, 8 “qui praetores fuerunt neque in provincia cum imperio fuerunt”) and the opposition between _magistratus_ and _imperium_. _Lex Tab. Bant._ 1. 16 “quibus quisque eorum mag(istratum) imperiumve inierit”; _Lex Acilia Rep._ 1. 8 “dum magi(stratum) aut imperium habebunt.”

[619] Liv. iii. 42; xxviii. 45.

[620] Polyb. vi. 19, 21. The tenor of the oath was (c. 21) ἧ μὴν πειθαρχήσειν καὶ ποιήσειν τὸ προσταττόμενον ὑπὸ τῶν ἀρχόντων κατὰ δύναμιν.

[621] The soldier is said “jurare in verba consilium” (Liv. ii. 52).

[622] Liv. iii. 20.

[623] ib. viii. 34 “latrocinii modo caeca et fortuita pro sollemni et sacrata militia sit.”

[624] Dionys. xi. 43.

[625] p. 79.

[626] See the section on the _intercessio_.

[627] Liv. vii. 5.

[628] ib. xxvii. 36.

[629] _Lex Acilia_ 1. 2.

[630] They were called _Rufuli_ (Liv. vii. 5; Festus p. 260).

[631] Liv. xlii. 31 (171 B.C., commencement of war with Perseus) “consoles ex senatus consulto ad populum tulerunt, ne tribuni militum eo anno suffragiis crearentur, sed consulum praetorumque in iis faciendis judicium arbitriumque esset.” Cf. xliii. 12.

[632] Polyb. vi. 13.

[633] p. 117.

[634] See Greenidge, “The provocatio militiae and provincial jurisdiction” in _Classical Review_ x. p. 225.

[635] The fact that the delegates and sometimes the crimes were distinct in the two cases does not make the military jurisdiction of the _imperator_ differ from his ordinary criminal jurisdiction, as Mommsen seems to think (_Staatsr._ i. p. 123). For the proofs of unity in the conception of jurisdiction _militiae_ see the article cited in the last note.

[636] At the close of the Republic, however, custom dictated that the governor should send capital cases in which Romans were involved to Rome. See the section on the provinces.

[637] Tac. _Ann._ iii. 74 “Tiberius ... Blaeso tribuit, ut imperator a legionibus salutaretur, prisco ergo duces honore, qui bene gesta republica gaudio et impetu victoris exercitus conclamabantur.” The earliest instance recorded is that of the elder Scipio Africanus (Liv. xxvii. 19). At the close of the Republic the title might be conferred by the Senate. Cic. _Phil._ xiv. 4, 11 (to emphasise the fact that Antonius was a public enemy Servilius had proposed _supplicationes_) “Sed hoc primum faciam, ut imperatores appellem eos, quorum virtute ... periculis ... liberati sumus.” For who, he asks, has not been called _imperator_ within the last twenty years “aut minimis rebus gestis, aut plerumque nullis”? (cf. Cic. _ad Att._ v. 20, 3).

[638] Dio Cass. xxxvii. 40.

[639] For the consular tribune see p. 114.

[640] An important exception is recorded in Liv. vii. 11 (360 B.C.). Here the consul triumphs after the abdication of the dictator, and the honour is clearly a concession of the latter.

[641] Liv. xxviii. 9 (207 B.C.).

[642] In this case the lesser honour of an “ovation” was sometimes granted (Liv. xxvi. 21; xxviii. 9).

[643] Liv. xxxix. 29 (185 B.C.).

[644] Gell. v. 6; Val. Max. ii. 8, 7. In this case, too, the ovation was sometimes granted, e.g. in the slave-wars of 99 and 71 B.C. (Cic. _de Orat._ ii. 47, 195; Gell. v. 6). For this reason Caesar’s triumph in 46 was over Gaul, Egypt, Pontus and Africa; that of Augustus in 29 over Dalmatia and Egypt. In neither case was it held over the citizens whom they had crushed.

[645] Val. Max. ii. 8, 1.

[646] Liv. xxxiii. 23; xlii. 21.

[647] Mommsen thinks the use of it as well (_Staatsr._ i p. 132), e.g. that it was in consequence of the absence of the _provocatio_ that the _cives Romani Campani_ were executed in 271 (Val. Max. ii. 7, 15).

[648] e.g. L. Postumius Megellus in 294 B.C. (Liv. x. 37), App. Claudius in 143 B.C. (Suet. _Tib._ 2).

[649] “Senatus consulto jussuque populi” (Liv. iv. 20).

[650] Polyb. vi. 15 τοὺς ... θριάμβους ... οὐ δύνανται χειρίζειν ὡς πρέπει, ποτὲ δὲ τὸ παράπαν οὐδὲ συντελεῖν, ἐὰν μὴ τὸ συνέδριον συγκατάθηται καὶ δῷ τὴν εἰς ταῦτα δαπάνην.

[651] Liv. xxvi. 21. Cf. Liv. xlv. 35, where the Senate’s request to the tribune is made through a praetor. One cannot say in this case that the _imperium_ is conferred for the day, since the Plebs had no power to confer the _imperium_.

[652] ib. xxviii. 38; cf. xxxi. 20.

[653] e.g. the two triumphs of Pompeius in 80 and 71 B.C. See Cic. _pro Lege Man._ 21, 62 “quid tam incredibile, quam ut iterum eques Romanus ex senatus consulto triumpharet?”

[654] A shortened form of _conventio_. Cf. _S. C. de Bacchanalibus_ (Bruns _Fontes_) l. 23 “haice uti in conventionid exdeicatis.”

[655] Gell. xiii. 16 “cum populo agere est rogare quid populum, quod suffragiis suis aut jubeat aut vetet, contionem autem habere est verba facere ad populum sine ulla rogatione.”

[656] It was, e.g., the mode in which the people were summoned to witness public executions outside the Pomerium (Cic. _pro Rab._ 4, 11; Tac. _Ann._ ii. 23).

[657] _S. C. de Bacch._ quoted p. 158.

[658] Liv. xxxix. 15 “contione advocata cum sollemne carmen precationis, quod praefari priusquam populum adloquantur magistratus solent, peregisset, consul ita coepit.”

[659] Messala ap. Gell. xiii. 16 includes the _magistratus minores_. Mommsen, guided by the (in this case probably false) analogy of the _jus cum populo agendi_, would exclude the aediles and quaestors (_Staatsr._ i. p. 200).

[660] Gell. l.c.

[661] Cic. _ad Att._ iv. 1, 6 “habui contionem, omnes magistratus praeter unum praetorem et duos tribunos pl. dederunt”; i. 14, 1 “Pisonis consulis impulsu levissimus tribunus pl. Fufius in contionem producit Pompeium”; ii. 24, 3 “Caesar is qui olim, praetor cum esset, Q. Catulum ex inferiore loco jusserat dicere, Vettium in rostra produxit.”

[662] Sall. _Jug._ 34 “ubi Memmius (a tribune) dicendi finem fecit et Jugurtha respondere jussus est, C. Baebius tribunus plebis ... regem tacere jubet.”

[663] See note 1.

[664] Cic. _de Leg._ iii. 4, 10 “cum populo patribusque agendi jus esto consuli praetori magistro populi equitumque eique quem patres produnt consulum rogandorum ergo.” For the question whether the praefect of the city had this right see p. 61; an argument for his possession of it in the Republic is his right of consulting the Senate.

[665] For the curule aediles see Cic. _in Verr._ i. 12, 36; Val. Max. viii. 1, 7.

[666] Liv. iii. 24; Dionys. viii. 77.

[667] Liv. xliii. 16 (169 B.C., P. Rutilius tr. pl.) “C. Claudio diem dixit ... et utrique censori perduellionem se judicare pronunciavit, diemque comitiis a C. Sulpicio praetore urbano petiit ... absoluto Claudio, tribunus plebis negavit se Gracchum morari.” Antias ap. Gell. vi. 9 “Licinius tribunus plebi perduellionem ei diem dixit et comitiis diem a M. Marcio praetore peposcit.”

[668] Whether the tribune presided over this assembly is uncertain. When the tribune in Livy (l.c.) breaks up such an assembly the act may simply refer to his retirement as a prosecutor (see last note).

[669] Liv. x. 23; xxv. 2; xxxiii. 42; Gell. x. 6.

[670] _De Leg._ iii. 4, 10, cited p. 160.

[671] Gell. xiv. 7 “(Varro ponit) per quos more majorum senatus haberi soleret eosque nominat ‘dictatorem, consules, praetores, tribunos plebi, interregem, praefectum urbi’ ... ‘deinde extraordinario jure tribunos quoque militares qui pro consulibus fuissent ... jus consulendi senatum habuisse.’”

[672] This right of the tribunes originated later than 304 B.C.; see p. 127.

[673] Liv. xxii. 30; xl. 52. Cf. Wilmanns n. 27 “L. Mummi. L. F. Cos. duct(u) auspicio imperioque ejus Achaia capt(a) Corinto deleto Romam redieit triumphans.”

[674] p. 39.

[675] Festus p. 261 “quinque genera signorum observant augures publici, ex coelo, ex avibus, ex tripudis, ex quadripedibus, ex diris.”

[676] _Silentium_ is defined negatively; see Cic. _de Div._ ii. 34, 71 “id enim silentium dicimus in auspiciis, quod omni vitio caret.” Cf. Festus p. 351.

[677] e.g. the fall of the cap from the head of the sacrificing priest (Val. Max. i. 1, 5). Cf. Festus p. 64.

[678] Val. Max. i. 1, 5 “occentusque soricis auditus Fabio Maximo dictaturam ... deponendi causam praebuit.”

[679] ib. 4, 2 (the omens that T. Gracchus encountered when seeking the tribunate).

[680] ib. 4, 7.

[681] Plut. _C. Gracch._ 11.

[682] Cic. _de Div._ ii. 34, 72 “Illi autem, qui in auspicium adhibetur, cum ita imperavit is, qui auspicatur ‘Dicito, si silentium esse videbitur’; nec suspicit nec circumspicit: statim respondet, ‘silentium esse videri.’”

[683] Plin. _H.N._ xxviii. 2, 11.

[684] Cic. _de Div._ ii. 35, 77.

[685] Liv. i. 36; Cic. _de Leg._ iii. 3, 9.

[686] Cic. _de Div._ ii. 33, 71 “haec certe quibus utimur, sive tripudio sive de coelo, simulacra sunt auspiciorum, auspicia nullo modo.”

[687] Liv. xxiii. 31 (215 B.C., Marcellus) “cui ineunti consulatum cum tonuisset, vocati augures vitio creatum videri pronunciaverunt.”

[688] Cic. _de Div._ ii. 35, 74 “Fulmen sinistrum auspicium optimum habemus ad omnes res, praeterquam ad comitia.”

[689] ib. i. 15, 27 “nam nostri quidem magistratus auspiciis utuntur coactis. Necesse est enim, offa objecta, cadere frustum ex pulli ore, cum pascitur. (28) Quod autem scriptum habetis, tripudium fieri, si ex ea quid in solidum ceciderit: hoc quoque, quod dixi, coactum, tripudium solistimum dicitis.” Cf. ii. 34, 72; 35, 73. For their use in camp see Cic. _de Div._ i. 35, 77; Val. Max. i. 4, 3. In the last passage the incident connected with P. Claudius Pulcher (249 B.C.) is described.

[690] Messala ap. Gell. xiii. 15 “Patriciorum auspicia in duas sunt divisa potestates. Maxima sunt consulum, praetorum censorum.... Reliquorum magistratuum minora sunt auspicia.”

[691] Gell. iii. 2.

[692] “Oriens de nocte silentio” (Liv. viii. 23).

[693] That in the camp, by means of the sacred chickens, had naturally to be exempted from these formalities.

[694] Cic. _de Nat. Deor._ ii. 4, 11; these tents were called _minora templa_ (Festus p. 157).

[695] The manipulation of auspices at the end of the Republic had caused the skilled assistant to be neglected (Cic. _de Div._ ii. 34, 71 “apud majores nostros adhibebatur peritus, nunc quilibet”).

[696] Liv. ix. 39, etc.

[697] See the section dealing with the powers of the people. The _vitium_ effected the elections even of tribunes of the Plebs—but purely as a result of _auspicia oblativa_. See Liv. x. 47 (293 B.C.) “exacto jam anno novi tribuni plebis magistratum inierant: hisque ipsis, quia vitio creati erant, quinque post dies alii subfecti.”

[698] ib. v. 31, etc.

[699] Mommsen thinks that the auspices of the consuls might have alternated, like their fasces, from month to month (_Staatsr._ i. p. 95).

[700] Thus before Cannae Varro takes the field in spite of the ill-omens which the observation of his colleague Paulus had revealed (Liv. xxii. 42).

[701] Val. Max. ii. 8, 2.

[702] Cic. _de Leg._ iii. 3, 6 “magistratus nec oboedientem et noxium civem multa, vinculis, verberibus coerceto, ni par majorve potestas populusve prohibessit, ad quos provocatio esto.” A _lex Porcia_ prohibited the scourging of a Roman citizen by a _gravis poena_ (Liv.