CHAPTER XIII

THE PRIMITIVE INSTITUTIONS OF ROME

I.

PRIMITIVE MONARCHY

ALTHOUGH the traditions of the Seven Kings of Rome consist largely of fiction, it is beyond doubt that the earliest constitution of the Roman state was a monarchy. Rome, in fact, was never without a king; for the senior in rank amongst the ancient priesthoods was that of the rex sacrorum, and in the entries in the calendar which relate to his functions he is indicated by the letter R only, in the formula Q(uando) R(ex) C(omitiavit) F(as). This fact, and such survivals as the ceremony of the Regifugium (to be discussed presently), and the institution of the interregnum, as well as the name regia, applied to the residence of the pontifex maximus, who succeeded to the position of the king as the chief authority in the religion of the State, permit no doubt of the existence in early times of a chief whose title is philologically identical with that of the rig of the Goidelic Celts— and, it may be added, the raj of the Aryan invaders of India. The traditions give us no help with regard to the origin of the kingship in Rome and contain little that is trustworthy concerning its history; but they have a negative importance in that they give no hint of a hereditary title enjoyed by a ruling family. In no instance does the succession pass from father to son; and however we interpret the account given by our authorities of the procedure on the demise of the crown, it is implied that the king’s power was derived from the expressed will of the community. Here Celtic analogies may be of some help; for it is well known that the office of the rig did not necessarily pass from father to son, though the circle of choice was limited within the clan (tuath). We cannot, however, furnish definite proof that the successor to the kingdom was selected by anticipation in Early Rome, like the Tanist’ in Ireland; while on the other hand, it would be rash to argue from the fact that under the Republican constitution the chief magistrate ‘nominated’ his successor (subject of course to the confirmation of his act by the assembled people) that the, king had designated the future holder of his powers in his lifetime.

In considering the functions of the rex we may set aside the traditions of the Seven Kings, of whom the first is credited with the establishment of civil government and the beginnings of military organization, while the second was recognized as founder of the religious institutions of Rome. We shall, however, not be rash if we assume that the imperium of the Republican chief magistrate, of which we shall speak more fully later, derived its features from the authority exercised by the rex. Cicero draws this inference in the passage of the de legibus relating to the consulship, which is worth giving in full1: ‘ Let there be two holders of kingly authority and inasmuch as they lead and give judgment and take counsel let them be called leaders, judges, and counsellors; in war let them enjoy supreme power, and obey no man: for them let the safety of the people be the highest law.

Cicero, it will be noticed, treats the regium imperium as comprehending the supreme command in war and the administration of justice in peace: he says nothing of the king as priest. The few facts which we know with regard to the duties of the later rex sacrorum do not give a complete picture of the religious functions of the king. The rex sacrorum proclaimed the festivals to be observed during each month on the Nones: he offered a sacrifice, probably to Janus, in the Regia, on 9 January; and on 24 March and 24 May he performed some ceremony in the comitium, indicated by the entry in the calendar Q(uando) R(ex) C(omitiavit) F(as). Lastly, on 24 February, he took part in the ceremony of the Regifugium, which was commonly misinterpreted as commemorating the expulsion of Tarquin. A gloss of Festus (unfortunately much mutilated) shows that Verrius Flaccus rightly rejected this view: he is also the author of the note in the Fasti of Praeneste on the entry Q.R.C.F., in which he controverts the view of those who believed the letters to signify Q(uod) R(ex) C(omitio) F(ugerit), and probably followed Varro, who gives the correct explanation of the letters. It seems certain that the Regifugium, like the Poplifugia of 5 July, was a ‘ritual flight’ like that of the priest who slew the ox at the Attic Buphonia, so that the ceremony was one belonging to a stratum of primitive religious ideas. There is, however, no trace at all of the conceptions of kingship familiar amongst primitive folk in the Roman institution, nor in fact, amongst the Italic peoples, except in the case of the rex nemorensis at Aricia. That the Roman king was originally a god is in no way proved by the fact that the garb of the triumphator was assimilated to that of Juppiter the Best and Greatest; and if the king-god of primitive magic has any representative in Rome, he is to be found rather in the flamen Dialis, whose precious life was hedged about with a host of taboos, than in the rex.

II.

PRIMITIVE DIVISIONS OF THE PEOPLE

The Romans clearly had little if any direct knowledge of the monarchical constitution; nor is it easy to reconstruct from the material supplied to us by tradition and survival the primitive society over which the rex held sway. To begin with the divisions of the people. It was an accepted fact that the system of local tribes which prevailed in historical times did not go back to the beginnings of Roman history. There were, however, three names which were applied to the six senior centuriae of the Roman equites, viz. Ramnenses, Titienses and Luceres, each being divided into priores and posteriores. They subsisted as voting-units in the assembly of the centuries and were therefore called sex suffragia, and it was a natural conjecture that they represented three primitive tribes. This is not the account given by Livy, who merely says that Romulus enrolled three centuries of horsemen after his reconciliation with the Sabines, and called one after himself, and one after Titus Tatius—the third name defied explanation—and that the number was doubled by Tarquin the elder; but Cicero , who explains the third name as derived from Lucumo, an ally of Romulus, definitely speaks of three tribes, and Varro tells us that the ager Romanus was first of all divided into three portions, from which the three tribes took their names. The derivation of tribus from tres which he implies has been rejected by modern scholars, who connect the word with the Celtic treb- (Modern Welsh tref) comparing the spelling trefi- in one passage of the Tables of Iguvium; but so far as the explanation of the tribus as local is concerned, he is likely enough to be right: it was not only the later Roman tribus that were territorial, for a district in Umbria is described as tribus Sapinia by Livy . But that the centuries of cavalry were named after tribes is not thereby proved. According to Varro the three names were explained as Etruscan, by one Volnius (Volumnius seems a more probable name) who wrote tragedies in Etruscan: and Schulze accepts this, pointing to the Etruscan family names Titie and Luchre, and explaining Ram-nenses from the stem expanded in the names Ramnius and Ramennius. If this is correct, the tribes (or cavalry-squadrons, as the case may be) would date from the period of Etruscan influence at Rome1.

Tradition has it that besides the three tribes thirty curiae were established by the founder of Rome; and here we are on firmer ground, for these subsisted throughout Republican history as the framework of an assembly of the people which evidently survived from primitive times. The Romans possessed no more characteristic institution than that of the group-vote. When the people were gathered together to hear proclamations or harangues from those in authority, the assemblage was described simply as a couentio (later contio); thus in the senatus consultum de Bacchanalibus (186 BC) the Senate gives instruction to publish its decisions in couentionid on three successive market-days. Varro also tells us that the censors summoned a conventio when they were about to perform the ceremony of the lustrum. When, however, the will of the people was to be formally expressed in binding terms, the contio was dismissed, and those about to vote were marshalled in groups, each of which cast a single vote: the assembly was now termed comitia. Messalla expounds the distinction between comitiatus and contio in a passage from the de auspiciis quoted by Gellius, who summarizes the doctrine in his comment: ‘ cum populo agere (i.e. in the comitia) is to put a question to the people, in answer to which it may by its votes enjoin or forbid, contionem habere is to deliver a speech to the people without putting any question.’ Now the primitive form of grouping (which must go back to the regal period) is that by curiae, described as comitia curiata in distinction from later groupings which will be described in due course. The derivation and original meaning of the term curia are obscure. The only dialectic variant known to us is couehriu, found on a bronze tablet from the Volscian town of Velitrae and possibly as early as the fourth century BC, and it is suggested that this is for couirium, but this is far from certain. It is indeed not unlikely that the word denoted a place of meeting rather than the group itself, for it was applied to the shrines at which the curiae performed their sacred rites and to other halls of assembly, such as the senate-house. The curiae took part in two festivals belonging to the primitive calendar. The first was the fordicidia or slaying of pregnant cows, one for each of the thirty, on 15 April; the victims were offered to Tellus, and the unborn calves were burnt and their ashes handed over to the Vestals to be mixed with the blood of the ‘October horse’ and used for the magic of the Parilia on 21 April. Of the other, the Fornacalia or Feast of Ovens, ending on 17 February, we have some account in the Fasti of Ovid who tells us that it was held in the Forum, where each curia had a place allotted to it; and Dionysius seems to refer to it where he speaks of having seen offerings of cakes and first-fruits on wooden tables of primitive shape in the several curiae. Each of them had its curio, who presided over its rites, and the curio maximus, elected by the people, proclaimed the festival.

It is by no means easy to explain the origin of the curia and the part which it played in the political organization of the Roman community. Our Greek authorities, such as Dionysius, equate it with the phratria, in order that the three-fold division gens-curia-tribus may correspond with genos-phratria-phyle, and Laelius Felix, in discussing the principles of grouping in the various comitia, said that the comitia curiata were those in which votes were cast ex generibus hominum. The Romans therefore held that the curia was an element in a social and political order based on kinship. It does not, however, seem that they went a step farther and completed the symmetry of the scheme by assigning ten gentes to each curia; for the obscure passage in which Dionysius speaks of a division of the curiae into dekades, though Niebuhr interpreted it in this sense, carries little weight: nor (as we shall see) do the ancient authorities connect the normal number of three hundred assumed for the Senate with any such arrangement.

The fact is that the curia is the only unit of grouping of whose existence in Early Rome we can be sure. It seems to have been found amongst other Latin peoples, for we find it at Lanuvium, and (as a survival) in towns enjoying Latin right, such as Malaca in Spain, where it takes the place of the tribus in Roman coloniae : and we shall probably not be far wrong if we regard it as a group of households formed for the purpose of political organization. Symmetrical divisions of this kind are apparently implied in the Tables of Iguvium, where we find tekvias (= decuriae), famedias (= familiae), pumpedias (=quincuriae, cf. the Oscan pumperiais at Capua), and though they are artificial, and no doubt often calculated on the basis of round numbers (as were the English ‘hundred’ and the Welsh cantref or ‘hundred settlements’), the principle of grouping is likely to have been local. Of the few names of the Roman curiae which survive, some, such as Foriensis and Veliensis, lend themselves readily to such an interpretation: the myth which related that Romulus christened his curiae after the raped Sabines very probably arose from the name Rapta.

As the earliest assembly of the people the comitia curiata was retained throughout Republican history in order to represent the community in its religious capacity. Thus it was summoned in order to witness the inauguratio of the rex and the greater flamines, and also to give the necessary assent of the people to private acts which might affect the due performance of sacra, such as adoption by adrogatio and the execution of the primitive form of will, of which more will be said later. In this capacity it was summoned by the pontifex maximus in Republican times and known as comitia calata, and we learn from a remark of Cicero in his speech on the Agrarian Law of Rullus that the formalities were duly witnessed by thirty lictors representing the thirty curiae.

It is more important to consider what was the position of this assembly in relation to the rex. In historical times the comitia curiata was regularly summoned to pass a lex de imperio, which formally conferred the imperium on the magistrates who had already been elected by the comitia centuriata. In the speech quoted above, Cicero explicitly says that the consul, if he has not secured the passing of such a law, cannot undertake military operations, ‘at-tingere rem militarem non licet’. Nor, again, could the magistrate exercise jurisdiction until he had thus been invested with imperium, and thus in 56 BC the courts were paralysed for a time because Clodius prevented the passing of leges curiatae. Lastly, the consul who had failed to secure his lex curiata was held to be incapable of holding valid elections for his successor, and on this ground the comitia held at Thessalonica in 49 BC by Pompey’s supporters were not recognized by Caesar’s party. At the same time, the formality of assembling thirty lictors and treating them as representatives of the sovereign people was probably not always observed in later times: in a letter of Cicero, Appius Claudius, the consul of 54 BC, is reported as expressing the view that the passing of the lex curiata ‘was requisite but not indispensable’, ‘opus esse, necesse non esse’. Common sense tells us that the ceremony was a survival from a time when the assembly of the centuries did not exist and the comitia curiata was the only organ by which the people expressed its will and conferred imperium on its rulers. But the accounts which we have of its function in the period of the kings are not so simple. All authorities agree that on the demise of the crown the Senate set up an interrex, who held office for five days, and was succeeded by others until the vacant throne was filled, and that this officer proposed the name of the future rex for the approval of the people. Livy tells us that the choice of the populus received the ratification of the Senate. But Cicero in the de Republica says nothing of this: on the other hand he states most explicitly that the newly-appointed rex took a second vote of the comitia curiata in order to secure the grant of the imperium. It is to be feared that we have in this curious doctrine an unintelligent explanation of the dual vote taken in historical times; the jurist from whom Cicero borrowed it supposed that the vote of the Republican comitia centuriata had been substituted for the first of two acts of the comitia curiata when that was the only assembly. We, on the other hand, conclude that it was the comitia curiata as the assembly of the Roman people which conferred upon the king the imperium., but that its choice was preceded by a nomination by the Senate’s interrex and ratified by the patrum auctoritas.

III.

THE STRUCTURE OF SOCIETY: PATRES AND GENTES: CLIENTS: PLEBEIANS

In order to explain the part played by the Senate we shall have to go farther afield. The Council of Elders, whose existence in a primitive community we should be obliged to assume, even were it not attested, is described by the term patres. Livy, for instance, says that on the death of the king res ad patres redit; Cicero, putting the matter from the point of view of the state-religion, uses the phrase ‘auspicia ad patres redire'. In the historical period patres in this context meant the patrician members of the Senate only. Asconius in his commentary on the pro Milone speaks of a motion made ‘de patriciis convocandis qui interregem proderent.’ It was likewise used in this special sense in connection with the patrum auctoritas, or act of ratification which (as Livy clearly states) was necessary to validate the election of the king, and which, down to the close of the Republic, was performed on the occasion of every vote of the people, whether in elections or in legislation, although (as will be shown later) it was in time reduced to a bare formality. This is made clear, not only by the passages in which Livy and Sallust use patricii for patres, but also by the fact that both Cicero and Livy, in passages which show a striking verbal resemblance, suggesting that they are derived from one and the same juristic source, state that the extinction of the patriciate would mean that no body would remain which could by its auctoritas ratify the decisions of the comitia. It is a legitimate inference that there had been a time when the Senate was composed entirely of patricians, and that after the admission of plebeians the body of patres in the old sense retained certain functions as its exclusive privilege. We are thus compelled to face the question, what was the ground of the distinction between patres and plebs, and in order to answer it we must examine the structure of Roman society.

In the developed legal system of historical Rome the only recognized holder of rights was the pater, or, to use the full expression, paterfamilias. He alone possessed juristic personality, and the members of his family could not (apart from legal fictions) own property or sue or be sued in the courts. The familia of which he was the head included both persons and things, though there is a trace of some distinction between movable goods (originally ‘stock’) and the remaining rights (including those over persons) in the phrase familia pecuniaque, used by the ‘buyer of the familia ’ in the fictitious sale which cloaked a testamentary disposition. The authority of the pater was variously described: his wife was said to be under his ‘hand’ (manus), his slaves were in his dominium, but the most characteristic expression of his power is contained in the patria potestas, which is especially used of the father’s authority over his descendants, including the ‘right of life and death’ (ius vitae necisque) which, though rarely exercised in historical times, was never extinguished by law. The execution by Brutus the First Consul of his two sons was the legendary prototype of this extreme manifestation of the father’s power over the family, which was only extinguished by his death, when his sons in their turn became patres familiarum.

Here, then, we have the ordinary use of pater in its legal sense as the subject of civil rights. But behind the house-father with his concentrated authority and indefeasible right of property stood a group with claims which might, in the absence of heirs, be revived at any time. The issue of the pater were in the first instance his ‘necessary heirs  (heredes necessary, also known as heredes sui or ‘heirs of his personality’): but in default of such heirs the familia, according to the Law of the Twelve Tables—our earliest evidence for the Roman customs of inheritance—was claimed by the ‘nearest agnatus,' that is to say (since agnatus denotes descent in the male line only) the nearest kinsman who could show that his ancestor and that of the deceased had been under the same patria potestas. But what if there were no person who could thus trace collateral descent through males ? Then, says the Code, ‘the gentiles shall have the familia’. This enactment introduces us to the gens, the place of which in early Roman society is not easy to determine precisely. The nomenclature of the Romans was based on the use of a personal name (praenomen), selected from a number which was never large, and was so much reduced in historical times that only fifteen were in common use, and the name proper (nomen). Of these nomina, according to a tract ascribed to Varro, there were 1000 in use, which is perhaps an exaggeration; but they were very numerous, and the same nomina are often found both among the Latins and other Italic stocks. The nomen denoted the gens—indeed a jurist of Cicero’s time says quite simply ‘gentiles mihi sunt qui meo nominee appellantur.’ But it was far from being true that all who possessed the same nomen could lay claim to the reversionary rights above mentioned. In Cicero’s Topics (6, 2 9), ‘ definition ’ is illustrated by the example of the word gentilis, the precise meaning of which had been laid down by Q. Mucius Scaevola, doubtless in an authoritative interpretation of the passage above quoted from the Code. Scaevola ruled thus: ‘gentiles sunt inter se (1) qui eodem nomine sunt, (2) qui ingenuis oriundi sunt, (3) quorum maiorum nemo servitutem servivit, (4) qui capite non sunt deminuti.’ This excludes all freedmen and their descendants, who, though according to the Roman practice they bore the nomen of the original manumitter, could lay no claim to a share in his familia, though of course his descendants were entitled to claim his succession ab intestato. The last limitation excludes other categories of persons. The caput of a Roman citizen was the sum of the rights which he enjoyed in virtue of his birth. These the lawyers of historical times defined as ‘citizenship, freedom and family (civitas, libertas, familia), and if any one of these were lost for whatever reason the sum was diminished and capitis deminutio took place. Civitas, for instance, was lost when a Roman joined another community—even a Latin colony; and familia was lost when he was adopted into another family.

Were the reversionary rights, thus limited, the survival of a system of joint-holding in which individual property had not yet emerged? The gens, as its name shows, was based on a presumed natural kinship; and the adjectival termination of Latin nomina in -ius seems to be patronymic, like the -eios of Epic and Aeolic Greek. It affords a natural ground of comparison with the formation of Goidelic clan-names in Scotland and Ireland by the use of the prefixes Mac- and O’ (Ua)-, and however fictitious the theory of common descent may have been, there is nothing improbable in the supposition that when migration gave way to settled life, tracts of land were occupied by gentes in the Roman sense, which gradually became disintegrated by the appropriation of cultivated areas to smaller kin-groups. The familiae in the common and non-technical use of that word, whose members were distinguished from those of the remainder of the gens by the use of an added name (cognomen), represent a stage in the dissolution of the clan; the independence of the paterfamilias and his highly-developed right of ownership form the term of the process, which has its analogies in the breaking-up of other tribal systems.

There is very little direct evidence of joint-holding by the gens at Rome. It may be implied in the well-known legend of Attius Clausus, the eponym of the gens Claudia, who was said to have migrated from his Sabine home in 504 BC, followed by a host of kinsmen and dependents, and to have received the Roman citizenship with patrician rank and an allotment of land beyond the Anio which formed the nucleus of the Claudian tribus. Mommsen inferred the primitive existence of common property in land from the use of certain terms of law. Thus heredium is explained by Varro as ‘the two iugera allotted by Romulus to each citizen as his hereditary property.’ The word was found in the Twelve Tables, and the elder Pliny tells us that it there had the sense of hortus, whereas hortus was used in that of villa. Since two iugera would scarcely suffice to maintain a family (though according to Livy allotments of this extent were given to the colonists of Anxur in 329 BC) it is suggested that the exclusive possession of the plot was supplemented by rights of common tillage and pasture in a wider area. We are of course in complete ignorance of the context in which heredium was found in the Tables, and can only conjecture that it was the homestead which could not be alienated from the natural heir. Nor can we draw any clear inference from the fact that mancipium was the oldest form of conveyance known to Roman law. The ‘taking with the hand’ which was necessary to transfer the right of property was a symbolical act, just as was the striking of the scales with the ingot of bronze, which represented the payment made. The terms of the bargain, according to the Twelve Tables, were expressed in the words which accompanied the formal ceremony. The theory that Romulus distributed the land taken by right of conquest viritim, shows that the Romans themselves regarded individual property as primitive. In the opinion of the present writer, therefore, the case for extensive joint-holding by the Roman gens is not made out.

There is better evidence for a religious tie uniting the members of the gens, and for the possession by gentes of a common place of burial. Ateius Capito mentioned that ‘in the sacrifices of the gens Claudia a propudialis porcus was offered as a purificatory victim; and we are told that during the siege of the Capitol by the Gauls one of the Fabii passed unharmed through the enemies’ lines to the Quirinal in order to perform the sacra of his gens. When a member of a gens placed himself under the potestas of one of another clan, he went through the form of sacrorum detestatio; and it was the duty of the pontifices to see that the transmission and maintenance of gentile sacra were not endangered by adoptions. That the place of worship was the common sepulchre might be inferred from the rule which forbade the burial of non-members extra sacra et gentem. We are told that the Claudii were allotted a burial-place at the foot of the Capitol; and Cicero speaks of the gens Cornelia as occupying the same sepulchre down to his own time: the well-known grave of the Scipios was of course the property not of the gens Cornelia as a whole, but of one of its familiae, the Cornelii Scipiones.

The questions must now be asked (a) whether the patres familiarum of the gentes known as patrician formed the citizen body of the primitive Roman state to the exclusion of others, (b) whether the patres forming the Senate in the regal period directly represented these gentes. There was certainly a claim that the rights of gentiles belonged to patricians, and to them only. Livy puts into the mouth of Decius Mus a dramatic speech in which he tells the patres that they claim ‘vos solos gentem habere. ' Cicero mentions a lawsuit between the patrician gens Claudia and the Claudii Marcelli, who were plebeians, concerning the right of succession on intestacy to the estate of the son of a freedman of the Marcelli. They claimed the estate stirpe, the patrician Claudii gente: and from this it has been inferred that the Marcelli, as plebeians, could not form a gens, but must base their claim solely on descent. We do not know how the case was decided; and even if we suppose that the patrician Claudii were successful, this would only establish the rule that where patricians and plebeians bore the same nomen, the reversionary rights of gentilitas belonged to the former only, because it was presumed that the plebeian branch was sprung from a freedman, and thus excluded by the definition cited above.

Certain facts, however, are beyond dispute. In historical times there were true gentes which were plebeian. Verres, when praetor, tried a case in which the plebeian gens Minucia claimed their reversion to an intestate estate and the leading case which established the rule above-mentioned, that strangers might not be interred in the burial-place of the gens, concerned the plebeian gens Popillia: so too we read of the gentile Domitiorum monumentum belonging to the plebeian Domitii. There were, moreover, amongst these several which had the same nomen as a patrician gens. Cicero, in a letter to his friend Papirius Paetus, corrects his statement that all Papirii had been plebeian, and in fact advises him to claim no kinship with those familiae of the Papirian gens, who had a discreditable record, but to link his name with the patrician Papisii or Papirii who played a famous part in early Roman history. No doubt the connection in such cases was often fictitious : as we have already mentioned, the plebeian families of later times imagined a transitio ad plebem in order to trace descent from an extinct patrician gens. The case of the Marcii is noteworthy. The plebeian gens of this name furnished, in the person of C. Marcius Rutilus, the first member of the plebs to hold the offices of dictator and censor (his son was the only Roman to be re-elected to the latter office), and, what is more remarkable, a later Marcius actually became rex sacrorum and transmitted the cognomen of Rex to his descendants, although this priesthood was of right confined to patricians. But we also find a Marcius as the third king of Rome. Nor is he the only king to bear a plebeian name, for the historical Pompilii and Hostilii also belonged to the plebs. Again, three of the Seven Hills on which the ancient rites of the Septimontium were performed—Cispius, Oppius, and Caelius—bear names which are those of plebeian gentes. It is difficult in view of these facts to believe that Early Rome was a community the citizenship of which was confined to patrician gentes only.

This was a theory held by antiquarians at the close of the Republican period. Cincius is quoted by Festus for the explanation of patricii as ‘those who are now called ingenui’, i.e. free-born citizens; and this is obviously connected with the absurd derivation of the word from patrem ciere—‘those who can point to a father.’ It means in reality ‘those who belong to the class of patres, but patres here signifies, not patres familiarum in general, but the heads of the ruling families. That the long struggle of the plebs had as its object the admission to citizenship of a class outside the citizen body there is no evidence at all.

Whatever view the lawyers may have taken, the Roman writers of historical narrative regarded the patriciate as a kind of peerage created in the first instance by the kings. Romulus, says Livy, ‘made a hundred senators, either because that number sufficed, or because there were only 100 persons fit to be made patres. Patres, at any rate, they were called from the dignity of their office, and patricii was the name given to their descendants. When Alba fell and was incorporated with Rome, its plebs received the citizenship, but its chief families were added to the patres by Tullus Hostilius; six are named, including the Iulii. Tarquinius Priscus added to the patres 100, who were called minorum gentium; the Papirii, we are told, belonged to this group of ‘junior families,’ and in Suetonius’ Life of Augustus we meet with the strange theory that the Octavii were introduced (adlecta) by Tarquin among the minores gentes, then ‘raised to the patriciate’ by Servius Tullius, and in course of time ‘passed over to the plebs. Even after the fall of the kingdom, it was held, the Sabine gens of the Claudii had been co-opted into the patrician body by the Senate; and Livy, in the speech which he puts into the mouth of Canuleius in support of his proposal to permit conubium between patres and plebs writes thus: ‘the exalted rank which most of you, sprung from Alban or Sabine stocks, enjoy not by right of race or blood, but through co-optation into the body of the patres, whether by the choice of the kings or, after their expulsion, by the command of the people.’ It was a convenient theory, for it carried back to the beginnings of Rome the doctrine that the Senate was formed by free ‘choice’ (lectio) as it was in name throughout Roman history, and upon this fact it may have been based. But, whatever the origin of the theory, it is inconsistent with the doctrine that the patres were the only true cives. Selection no doubt there was among the gentes who settled on the ager Romanics, but it was the natural selection which inevitably takes place when a migratory folk takes to settled agriculture.

In the establishment of the supremacy of the patres the institution of clientship played a considerable part. A powerful economic group always attracts to itself a crowd of dependents who, in return for protection against the strong arm and grants of land for occupation and cattle for use thereon, render services fixed by custom or agreement. We have little direct information about the relation of the patroni and their clientes in Early Rome; but that it entailed mutual obligations enforced by moral and even religious sanctions the Romans never forgot. Vergil, in his Inferno, places beside him who strikes his father the man ‘who weaves a net of guile about his client,’ and the comment of Servius on the passage shows that the poet had in mind the Law of the Eighth Table, patronus si clienti fraudem fecerit sacer esto. The client, on the other hand, as we are told by Dionysius, was called upon to assist in dowering the daughter of his patron and in paying his ransom when made captive in war or the fines which he might incur in court. The moral aspect of the relation comes out clearly in the use of the word fifes: in the Lex Acilia Repetundarum the word cliens is not found, but instead we have ‘quoia in fide is erit maioresve in maiorum fide fuerint.’ It goes without saying that a large body of clientes was a source of strength to the gens, Attius Clausus and his Sabines, together with their clientes, were said to number 5000 souls. Livy writes under the date 468 BC ‘that the plebs in its anger refused to take part in the election of consuls and T. Quinctius and Q. Servilius were chosen by the votes of the patres and their clients’; and though the statement may have little claim to credence—and a similar remark about the elections of tribunes is even more suspect—we may infer from it that the struggle between patres and plebs was not conceived by the Romans as originating in the effort of a depressed class of clientes to free themselves from dependence. We must therefore reject the view that the plebs originated from the existence of non-citizen clientes in a wholly patrician state.

It is of course clear that, as the older patrician gentes suffered the incidents of dissolution and decay to which families, whether ancient or modern, are liable, their clients, while acquiring economic independence, would remain excluded from the privileged class, and join the ranks of the plebs. The extinction of the patrician families is a process which can be clearly traced in the Republican period. From the Fasti and narratives of the Early Republic we can compile a list of about seventy such gentes (including those only known at a later time as plebeian, whether sprung from clients, or, as they so often claimed, reduced in status by transitio ad plebem). From 366 BC, the date at which the first plebeian became consul, to 179 BC only twenty-four of these are represented in the higher grades of the magistrature, and four of them disappear after 287 BC. From 179 to 55 BC the number is eighteen, and from 55 BC to the close of the Republic fourteen or fifteen. We shall not be wrong, then, in thinking that the relaxation of the tie of clientship was a substantial factor in the rise of the plebs. But the view put forward by Cicero (de Rep. 11, 9, 16) and others, that the founder of Rome ‘allotted’ the whole of the plebs as clients to the patricians1 2, is too narrow. The growth of Rome as a centre of trade and handicraft, and her absorption of the village-communities of the surrounding districts of Latium, inevitably resulted in the growth of the ‘multitude’ which was excluded by the ruling caste from representation in the Council of Elders and the conduct of the State’s relations with its gods, except in so far as the more powerful families in the territories incorporated in the Roman community were admitted on equal terms by the patres. The plebeians, therefore, comprise members of gentes which had fallen behind in the race for eminence; clients, many of whom had lost their patroni, the peasants from neighbouring villages which had been absorbed by Rome and immigrants to the growing city. The plebs is a composite body, but Roman by birth or naturalization, and, in the opinion of the present writer, the theory that the difference between patrician and plebeian is due to a difference of race is unacceptable, the more so as the Romans seem to have recognized no racial distinction between the orders in historical times1.

IV.

CIVIC RIGHTS OF PLEBEIANS

We cannot deny to the plebeian element in Rome the title of cives Romani, although the rights associated with the franchise of later times were not possessed in their entirety by the ‘commons.’ Those whom the Romans admitted to their citizen body in the later periods of their history enjoyed both private rights and public privileges. The former are summed up in the words commercium and conubium. Of these the first signifies much more than the right to trade. It implies the right to acquire a title to property, whether in land or in goods, ex iure Quiritium, and to defend that title in court by the methods appropriate to the ius civile—the law which holds good between citizens. The forms of procedure by which rights of property are acquired and maintained against all comers form the most important part of Early Law, and are jealously guarded by primitive communities against usurpation by strangers; but there is no reason to think that plebeians were ever debarred from their use, though the client who had placed himself under the protection of a Roman patronus was represented by him should he sue or be sued. Conubium implied the power to contract a marriage with a Roman citizen, the issue of which would themselves be citizens, subject to the p atria potestas of the father, and inheriting his familia in due course. In this respect the rights of the plebs were curtailed, since the patres, we are told, refused conubium to plebeians. They themselves practised a form of religious marriage known as confarreatio, so-called from the cakes of spelt (far) which were offered to Jupiter. The pontifex maximus and flamen Dialis were present at the ceremony together with ten witnesses. The dissolution of such a sacramental union (diffarreatio) was hedged about with difficulties2, and was entirely forbidden to the flamen Dialis, who, like the holders of other great priesthoods, was required to be sprung from such a marriage. The patricians, who denied community of religion to plebs, naturally declined to contract such unions with those outside the pale.

The forms of marriage which were open to the plebs were two: coemptio, which, although reduced to a symbolical conveyance, was, as its name shows, derived from the primitive practice of marriage by purchase, and usus, in which the possession of the wife by the husband was, after the lapse of a year, converted by prescription into ownership. We do not know whether these forms were also used by patricians in early times, though it is impossible to prove the contrary. It is maintained by De Sanctis that coemption being a survival of savage custom, is the oldest form, and that confarreatio belongs to a society—or, as at Rome, to a social caste—which had developed higher religious conceptions. However this may be, it is not to be doubted that plebeian marriages were, in the eye of the civil law, iustae nuptiae, and gave to the husband the full rights of patria potestas.

In the matter of public rights the plebs was in a very different position. The question whether the plebeians exercised a vote in the comitia curiata has been debated, but their exclusion from the curiae can only be maintained on a priori grounds; not only were the plebs members of this body in historical times—it is recorded that a plebeian was elected for the first time to fill the office of curio maximus in 208 BC, and of course the thirty lictors who formally cast the votes of the curiae in Cicero’s day were plebeian—but the Roman historians imply that this was so in the days of patrician ascendancy in the state and even in the regal period. Livy, for example, tells us that Servius Tullius, when he created the new assembly, presently to be mentioned, retained the traditional practice of the kings by giving a vote ‘of equal force and right’ to all citizens without exception; and Dionysius adds that his reform was undertaken ‘because the poor outvoted the rich’ in order that the decisive voice might rest with wealth. The proposal made in 472 BC, according to the annalistic tradition, that tribunes of the plebs should be elected in an assembly of tribes and not, as before, in the comitia curiata, is described by Livy as one which ‘took away from the patricians the power of securing the election of tribunes agreeable to themselves by means of the vote of their clients.’ But though the plebeian possessed the ius suffragii, he was for ever debarred from holding such offices as may have existed under the kingship and especially from sitting in the council of patres.

This leads us to consider the second question which we set out to answer—in what sense, if any, were the patres who formed the primitive Senate representative of the patrician gentes? There is no suggestion in ancient tradition of the direct representation of each gens by its head. As we have already seen, the curia is the only group which, in the belief of the Romans themselves, played a part in the political organization of the people; and there was in fact a theory that the Senate was formed in such a way as to give representation to the thirty curiae. There is a passage in Festus which states that at a later date the censors were charged with the duty of placing on the senatorial roll optimum quemque curiati, and if we write curiati(m), as several editors have done, we might hold that this continued a previously existing practice; but too much stress cannot be laid on this passage, since it seems very probable that iurati should be written, signifying that the censors were put on oath to choose the persons best qualified in their judgment to serve, just as in later times the praetor was bound by a similar oath in empanelling a jury. Again, if the primitive Senate represented the curiae, one would expect to find its number divisible by three. Now this was in fact the case in the Republican period, for there is good evidence that the normal number of senators was regarded as 300 down to the time of Sulla. But tradition was unanimous in ascribing to Romulus the formation of a Senate of one hundred only, which is not easily reconciled with the representation of curiae, although Dionysius gives an ingenious scheme—derived from what source we know not—according to which Romulus first nominated a praefectus urbi to take charge of the city during his absence on campaign, and then gave each tribe the right to elect three and each curia nine senators. This smells strongly of the lamp; and the same must be said of the statements made with regard to the increase in the numbers of the Senate. Livy assumes that on the death of Romulus the interregnum was organized by the Senate of one hundred, divided into ten decuriae (which obviously could not represent curiae): but Dionysius tells us (continuing no doubt to copy the same annalist) that after the peace between Romulus and Tatius and the incorporation of the latter’s Sabine followers in the state ‘the kings’ decided to double the number of patricians by the admission of those later called minores gentes, and that one hundred additional senators were chosen, their names being put forward by the curiae. He is consistent in putting the number of the Senate at 200 when the first interregnum took place. Livy’s account, on the other hand, is that Tarquinius Priscus added a hundred senators, ‘afterwards called those of the minores gentes, while Dionysius makes him raise the number of senators to 300 by his new creations. At all events, it is assumed that this was the normal figure in our accounts of the revision of the roll on the expulsion of the kings.

We cannot therefore affirm with any confidence that the Council of the kings was formed by the heads of all the patrician gentes— if indeed they had such an officer, for which there is no evidence —though its members were all of patrician rank. In view of the plebeian names borne by several of the kings and some of the Seven Hills (Cispius and Oppius are derived by Festus, following Varro, from the names of immigrants from Anagnia and Tusculum), coupled with the fact that the earliest ‘rustic’ tribes, of which we shall speak presently, are called after patrician gentes^ it has been suggested that the patriciate was formed by a group of powerful families which succeeded in overthrowing the Etruscan monarchy and monopolizing the government of the newly-founded Republic. But this theory runs counter to all ancient beliefs. The claim of the patricians to be the depositaries of all the traditional knowledge of divine and human law, and especially of the means whereby the pax deorum, or the right relation between the Roman state and its gods, could be maintained, was not seriously challenged, as it surely would have been if it had been due to a late usurpation. Thus the Senate was a body of advisers, perhaps selected by the kings, which, in the aggregate, represented the ruling families.

V.

RELIGIOUS INSTITUTIONS

Tradition, which ascribed to Romulus the civil constitution of Rome, was unanimous in assigning her religious institutions to Numa. The ‘religious experience’ of the Romans (to use Warde Fowler’s phrase) will be more suitably described elsewhere1; but something must be said of the organs through which religion as a function of the state expressed itself. It was characteristic of the Romans that they never possessed a priestly caste, excluded from secular activities, but claiming authority over the conscience and conduct of the individual. Just as the Roman paterfamilias was a priest in his own house and was subject to no external control in the conduct of the family rites, so the Roman magistrate performed priestly functions, especially that of securing the favour of the gods by due observance of the signs which they vouchsafed before taking any important action, whether in peace or war, on behalf of the state. Nor was the highest civil office incompatible with the tenure of any of the special priesthoods to which the cults of the individual gods of the state were allotted. These flamines, as they were called, were fifteen in number, and their antiquity is shown by the fact that several of them served half-forgotten divinities of whose nature (and sometimes of whose names) we know little or nothing. Three of them, the flamines of Jupiter, Mars and Quirinus, ranked above the rest, and the flamen Dialis, of whom we know most, was subject to a formidable series of taboos. He might not ride a horse, nor see an army in battle-array, nor take an oath, nor wear a ring or knots on his clothing, nor do or see done any secular work, nor bare his head even indoors, nor go near a dead body, nor eat (or even mention) a variety of things, e.g. a she-goat, a dog, raw meat, ivy, beans. His hair and nails must be trimmed by a free man with- a bronze knife and the parings buried under a lucky tree. The use of bronze is clearly a survival from the age when iron was unknown, and the taboos are all capable of simple explanations in accordance with the laws of primitive magic; and we may rest assured that they go back to days much earlier than those of Numa. Beside the single flamines, there were the colleges of Salii, the dancing priests of Mars, who had charge of the ancilia or shields believed to have fallen from heaven, and sang a hymn the text of which is only partly intelligible to philologists and was meaningless to the Romans of the Empire. There were two such colleges, originally no doubt belonging to distinct communities; we find similar priests in other Latin cities, and it was even held that they were earlier at Tusculum than at Rome. The hearth of Vesta was served by the Six Virgins, the rites of whose cult were simple yet extremely primitive.

But all these priesthoods, though essential to the maintenance of the cults which kept Rome in right relation with her gods, were concerned with the ritual which perpetuates—often without the slightest understanding—primitive magic. They exerted no authority over the public or private life of the Roman, and were in fact subject to a certain measure of disciplinary control, exercised by the head of the state religion, the pontifex maximus. It has been inferred from the fact that this officer ‘took’ the flamen for the god whom he was to serve, thus freeing him from the patria potestas of his father if living, and himself exercised the patria potestas over the Vestal Virgins, that he succeeded to the position of the primitive chief, whose sons and daughters tended the sacred hearth of the community and performed the needful rites; but this is quite fanciful. The pontifex maximus was the head of an ecclesiastical college the creation of which was ascribed to Numa. Livy tells us that he chose Numa, son of Marcius, from the patres to be pontifex, and entrusted to him a written statement of all ceremonies, setting forth the victims to be offered, the dates of the festivals, the temples at which they were to be celebrated, and the revenues from which the expenses were to be defrayed. Cicero makes Numa set up five pontifices, and as there were four in 300 BC, when the number was raised to nine by the Lex Ogulnia, it has been supposed that Numa himself was reckoned in by Cicero’s authority. The origin of the name provoked fruitless speculation in ancient as well as in modern times. If the obvious connection with pons is historical, we must take that word to include all causeways and not merely (as some have suggested) the bridge which connected the pile-village or the terramara with the land, and suppose that it was not merely technical knowledge which belonged to the pontifices, but acquaintance with the pleasure of the gods in regard to the settlements and migrations of the Italic stocks.

We are here concerned with the functions of this priestly college in historical times, and especially those which affected the life of the state and of its citizens. The Romans possessed from very early times the conception of ius, which is wider than that of positive law (lex) laid down by authority, and denotes an order morally binding on the members of the community, both human and divine. They distinguished ius divinum from ius humanum, and the pontifices were the natural guardians of the former. They alone could distinguish fas from nefas, properly that which might be uttered from that which might not; these terms were especially applicable to the utterances of authority, and hence the calendar, which was drawn up by the pontifices, distinguished dies fasti, upon which, as Varro explains, the praetor might ‘ utter ’ his three pronouncements—do, dico, addico—from dies nefasti, when the judge was perforce silent. On some few days his power of utterance was restored after certain ceremonies had been duly performed, hence such an entry as Q.S.D.F. = Q(uando) S(tercus) D(elatum) F(as), i.e. after the Vestal Virgins had swept out the refuse of the House of the Hearth. In course of time fas came to signify in general that which the gods permitted, and eventually the word seems to have acquired the meaning of a sort of code of ius divinum, as in Vergil’s fas etiura sinunt. Livy puts into the mouth of T. Manlius Torquatus the rhetorical appeal audite,  Ius Fasque, and this personification is borrowed from the curious "pastiche of formulae ascribed to the fetiales in his first book.

The border-line between divine and human law is not easy to draw in the matter of crime, which is regarded by the conscience of the community as a breach of the pax deorum, entailing an act or offering of expiation (piaculum). Sometimes the offender escaped with the sacrifice of a victim: the ‘law of Numa’ said that ‘the harlot shall not touch the altar of Juno: should she touch it, she must let down her hair and sacrifice a female lamb to Juno.’ But in graver matters the criminal and his goods themselves formed the expiatory offering. In this case the term sacer is used of both; and this puzzled the learned Romans of the late Republic, for, as Aelius Gallus says: ‘the man who is sacer is he whom the people has condemned for crime: and it is not fas for him to be sacrificed, but the man who slays him is not condemned for murder.’ He is not, that is to say, a victim meet for the gods, who can be slain at the altar; and, in fact, though subject to a taboo which, if observed by the community which has cast him out, would practically cut him off from the means of life, and liable to death at the hands of any citizen, he was nominally left to the power whom he had offended to deal with—except in cases where economic interest was involved like that of the harvest-thief ‘whom they ordered to be hanged and slain for Ceres.’ Since the pontifices were the authority which determined that which was nefas, it was they who elaborated the earliest criminal code.

In private law the influence of the pontifices was chiefly exerted in connection with the forms of procedure, but as in most early systems of law correct procedure is all-important, the fact that the pontifical college determined the form of words to be used in oaths and binding covenants, as well as in the solemn ‘pleadings’ afterwards called legis actiones, made their influence very powerful. The sacramentum which gave its name to the simplest form of legis actio, though it came in time to be regarded as no more than a stake deposited by the suitor and forfeited if he lost his case, must, as the name shows, have been in origin a penalty provided in advance for the breach of an oath. The pontifices, as we have already seen, summoned the assembly of the curiae which gave its assent to such private acts as might affect the maintenance of family sacra. The description given by Gellius of the procedure in the solemn form of adoption by adrogatio shows that the pontifices took their duties in this respect seriously, and Q. Mucius Scaevola, the most famous of the jurists who held the office of pontifex maximus, framed an oath which he administered to the adopter before putting the formal question to the comitia curiata. The sanction of such rudiments of international law as existed in early times was naturally religious; and in order to satisfy as well as to bind the public conscience a special ritual was performed. In this the pontifices did not play a direct part, but a special college of fetiales, the origin of which is variously ascribed to Numa, Ancus Marcius and Tullus Hostilius, asserted the claims of Rome, and if they were denied, conveyed the declaration of war with ceremonies described in detail by Livy and others. The formulae which Livy gives suggest a late origin, or at any rate considerable modernization. The fetiales also concluded the treaties which put an end to the state of war, and the use of a flint knife in the sacrifice of the victim points to the primitive origin of the ceremony of treaty-making. Though the pontifical college was not concerned here, it was responsible for the solemn formulae of devotio and evocatio by which the Roman commander sought to win over the gods of the enemy: in a supreme emergency he might ‘devote’ not only the enemy’s person, lands and goods, but his own life in order to secure the victory to Rome.

The origin of the second great priestly college, that of the Augurs, is ascribed by tradition to Romulus. Cicero’s account is that Romulus ‘co-opted’ (presumably in addition to himself) three Augurs, one from each of his three tribes, and that Numa added two more. Livy notes that when the college was raised in number to nine by the Lex Ogulnia of 300 b.c. four patricians were in office, to whom five plebeians were added, and is puzzled by this, since ‘the augurs are agreed’ that the number must always be divisible by three, in order that the Ramnes, Tities and Luceres may be equally represented—though of course this can only have been achieved by a legal fiction in later times. Their name, as well as the word auspicium which denotes their function, shows that the primitive form of divination practised by the Romans was based on the observation of the flight of birds; and this is very natural with a migratory race such as that to which the Italic populi belonged. It follows that the use of augury is earlier than the period of Etruscan influence, although, as has been pointed out in the previous chapter, its later development may have owed much to Etruscan practice, especially as regards the observation and interpretation of lightning which was grafted upon the auspicium proper. There was a compilation known as Etrusca disciplina, of which the first part dealt with the specially Etruscan form of divination by examination of the entrails of victims (extispicium) practiced by haruspices, whom the Romans summoned from Etruria when necessary, while the second—libri fulgurales— treated of lightnings and their interpretation. What we know of its contents—chiefly from Seneca’s Quaestiones naturales—seems to show Greek influence at work, and it is noteworthy that in the bilingual inscription from Pesaro fulguriator corresponds with the Etruscan frontac. The same man was also a haruspex, but in the inscription he says nothing of augury proper; and it appears that the Etruscans borrowed the Italic aviekl when they spoke of auspices.

The object of Roman augury, and of divination in general, was not so much to ascertain the future as to secure that the favour of the gods was with them in the business in hand—to put it bluntly, to ‘get the luck on their side.’ With this end in view they scanned the heavens for a sign, either such as the gods might vouchsafe unasked (oblativum auspicium), or one sent in answer to prayer (impetrativum auspicium). The observation must be taken by a person duly qualified, in other words, by one who ‘ possesses the auspices’; and the sign must be noted and interpreted by a skilled diviner, the augur. It would obviously be impossible in practice to ensure that a favourable sign was vouchsafed at the required moment—the opposite might well happen: but such contretemps were prevented by two complementary and highly convenient principles of augury, (1) that a bad omen has no application to one who denies that he has seen it—which enables the augur to turn a blind eye to unwelcome signs; (2) that the omen which counts is the omen as reported irrespective of its actual occurrence— which enables the augur to give the magistrate the assurance which he requires that heaven approves his contemplated action. It is evident that although it was the magistrate who ‘had the auspices,’ the case in which no magistrate had been duly elected being covered by the principle mentioned above by which ‘the auspices return to the patres’, the augural college could pronounce an authoritative decision on the question whether the action of a magistrate was in accordance with or in defiance of the signs vouchsafed, and that this right might be used for political ends.

The machinery of the state religion, then, so far as it was politically important, was controlled by the two great colleges— ‘sacris pontifices, auspiciis augures praesunt,’ says Cicero—and was thus in the hands of the patres, who were alone eligible. That the practice of augury was prior to any Etruscan influence has already been indicated, and the early establishment of these two colleges with their monopoly of religious authority is an additional argument against the doctrine that the patriciate was a group of families which owed their predominance to a successful revolt against monarchical rule.

VI.

MILITARY INSTITUTIONS

The traditions regarding the army of the kings are vague and conflicting. There were, in the organization of the people by centuries, to be described presently, eighteen centuriae equitum, and six of those bore the names of the three primitive tribes already mentioned, Ramnes, Tities and Luceres priores and posteriores. It was an obvious inference from this fact that they were the primitive units in the mounted force of Rome, and so we find that Livy attributes the creation of the first three to Romulus. His account of the gradual increase in the number of equites is confused; 300, he tells us, were added by Tullus Hostilius after the conquest of Alba Longa, while Tarquinius Priscus, having been forbidden by the augur Attus Navius to increase the number of centuriae, doubled their strength, ‘so that there were 1800 horsemen in three centuries.’ Yet Servius Tullius adds twelve centuries to the existing six. Cicero seems to make the force, as doubled by Tarquin the elder, 1200 strong; and Festus speaks of the sex suffragia as ‘added to the tale of the centuries established by Tarquinius Priscus.’ But it is more reasonable to suppose that these were the three pairs of centuriae named after the primitive tribes, and this was clearly what Livy understood by the ‘six centuries’ of Tarquinius Priscus. Attempts were naturally made to connect the equites with the thirty curiae, the theory being that each of these contributed a decuria of ten horsemen; but this no doubt is pure speculation. It is certain, however, that the earliest name for the force was celeres. The foolish etymologies proposed by ancient writers may be disregarded in favour of the plain meaning of the word. As Helbig showed, they are to be regarded as mounted infantry rather than cavalry1. Some confusion seems to have existed in the mind of Livy between the celeres (whom, together with others, he treats as the bodyguard of Romulus) and the equites proper; but other authorities explicitly identify them, and the name survived in the title of the tribuni celerum, who officered the force, and were retained (like the rex sacrorum) under the Republican constitution with certain religious functions, which (as we learn from the Fasti set up at Praeneste and compiled by Verrius Flaccus) they still discharged under the Empire on 19 March. The office of tribunus celerum was regarded by the Roman historians as having possessed very high importance under the kings, and was said to have been held by Tarquinius Priscus, Servius Tullius and (according to one version) by L. Junius Brutus, the founder of the Republic. The infantry, in the theory of the Romans, were termed milites, and had their own tribuni; and it was natural to derive the name from mille, and by an easy transition, to consider the ‘levy’ (legio) as consisting in a force of 3000 drawn in equal numbers from the three tribes; this was the view of Varro, and of course the supposed derivation of tribus from tres was used to explain tribunus. In later times the Greeks translated tribunus militum by Chiliarches (the word is found for the first time in Polybius) on the ground of the supposed etymology of miles.

VII.

REFORM OF SERVIUS TULLIUS: THE COMITIA CENTURIATA AND THE CENSUS

Roman tradition is unanimous in asserting that Servius Tullius was the author of a reform of the first importance, by means of which the ‘nation in arms’ was reorganized for military and at the same time for political purposes. The principal assembly of the Roman people in historical times was the comitia centuriata, in which the group-vote was cast by centuries. These were not tactical units of the army, nor even muster-rolls from which such units could be drawn: yet the assembly was essentially military in conception and aspect. It is termed exercitus urbanus by Varro; it was summoned by blast of trumpet, and met without the wall in the Field of Mars, and during its sessions red flags were hoisted on the Arx and the Janiculum, which were struck on the tidings, true or feigned (as happened in 63 BC), of an enemy’s approach, a fact which points to the antiquity of the institution. After the centuries of e quite s, which voted apart, came those of the ‘seniors’ and ‘juniors,’ the latter naturally furnishing the striking force of the army. These were grouped in five classes or ‘summonings,’ graduated according to their equipment. The full panoply of the hoplite—bronze helmet, shield, cuirass and greaves, with spear and sword—was worn by the first class only, the second lacked the cuirass, the third and fourth (according to Livy) had no defensive armour, the last were armed only with slings and stones. Besides these combatants, the assembly contained centuries of armourers, trumpet- and horn-blowers and other unarmed categories, and one formed by the proletarii, who had no taxable property and whose only contribution to the commonwealth consisted in their progeny. For the graduation of the classes, expressed in a military sense by the difference in equipment, was based on a registration of property, the census, which was instituted, according to tradition, by Servius Tullius, and took place, according to the later view (apparently embodied in the Fasti of the Regia) four times during his reign.

The Romans believed that Servius was the author of a ‘timocratic’ constitution somewhat like that of Solon; it was suggested, however, that his object was to prevent the poor from out-voting the rich as they had done in the comitia curiata. There is some variation in the details given by our authorities with regard to the ratings of the five classes; but they are expressed in asses., and range from 100,000 (or 120,000) to 11,000 (or 12,500) of these units. It is not in dispute that the as, or ‘unit,’ was originally one pound of bronze; but the earliest ingots of this weight, bearing the stamp of official guarantee in the types of the Janus head and ship’s prow on obverse and reverse, and thus fulfilling the function of a true coinage, are very little earlier than 300 BC), nor can we be at all certain that our authorities appreciated the fact that the pound of bronze ceased to be the unit of account in the third century BC), and that the as underwent a series of reductions which brought it down to one-twelfth of its original weight. But if (as is quite possible) the qualifications of the classes have been translated into terms of a later currency, there can be no doubt that it is an essential part of the scheme that property should be the basis of classification, and furthermore, that the highest class should be given a preponderating influence, since it contained eighty centuries (forty of ‘seniors’ and forty of ‘juniors’), while the second, third and fourth had twenty each and the fifth thirty, so that as there were 193 in all, the votes of the equites and the first class sufficed to give a clear majority. Now the property recognized for registration was property in land, and when the census was taken, its situation was defined by the tribus in which it lay. The censors not only placed a man in the list of his Centuria, but they enrolled him in a tribe; and the tribe was in origin a division of the ager Romanus. Those, then, who attributed the origin of the census and of the centuriate organization which was based thereon, to Servius Tullius, were consistent in ascribing to him the creation of the local tribes which took the place of the three tribes of Romulus with their supposed racial distinctions.

Here questions of some difficulty arise. Tradition ascribes to Servius Tullius the division of the city of Rome into four tribus —Succusana, Esquilina, Palatina, Collina—which were known as the tribus urbanae, but there was evidently much doubt as to his part in the further division of the ager Romanus into tribus rusticae. Livy states that in 495 BC ‘the number of tribes at Rome was made twenty-one,’ and this is taken to mean that the first seventeen of the ‘rustic tribes’ were then added to the city tribes of Servius Tullius. Sixteen of these bear the names of gentes. most of which are among the leading patrician houses, while others no doubt belong to families later extinct. It has been argued that since (as was pointed out above) plebeian gentile names appear in the list of kings, whereas the tribe-names are patrician, the patres represent an oligarchical group which seized the reins of power on the fall of monarchy: but this is a hazardous speculation. The tribus Lemonia may, it is true, be called after an extinct gens Lemonia, but if this was one of the families which brought about the overthrow of the kings, it is strange that its members do not appear in the Fasti; and as we hear of a pagus Lemonius, it is far easier to suppose that the sixteen rustic tribes are named after pagi, and that these in turn were known by the principal gentes settled therein. Besides the tradition which placed the creation of the ‘rustic tribes’ in 495 BC, there was another, which Dionysius ascribes to the earliest of the annalists, Fabius Pictor, according to which Servius Tullius divided the ager Romanus outside the city into twenty-six tribes, and a writer of the Gracchan period, Vennonius, went so far as to ascribe all thirty-five tribes (the last two of which were actually formed in 241 BC) to that king. Moreover, there is a passage in Livy which is so worded that it may be taken to mean that the ‘city’ tribes were later than the rest1 and were formed by Q. Fabius Rullianus, censor in 304 BC, and some modern writers have based theories upon this. The most reasonable view seems to be that the census, the centuriate organization, and the creation of twenty tribes are coeval.

But this is not to say that the organization of the comitia as described by our authorities was the work of a moment. There are traces of a terminology in which one classis only, forming no doubt the fully-equipped phalanx, was recognized, the rest of the populus being denoted by the term infra classem. A The tactics implied in the system are at any rate clearly phalanx-tactics; for the view that the army consisted of equites alone, fighting in the Homeric manner and followed by a crowd of lightly-armed clients, has little to commend it. What the Romans at any rate believed was that the organization of the nation in arms, including both  patricians and plebeians (for there is no suggestion that the latter were excluded or even placed in an inferior position), was the work of the later monarchy. That the comitia centuriata of Servius Tullius was the legislative organ of the populus seems to be the view underlying the statement of Tacitus  that Servius Tullius gave his sanction to laws ‘which even kings must obey.’ That he designed it to fulfil the function of electing supreme magistrates is no doubt a fiction of the constitutionalists; it is expressed by saying that the first consuls of the Republic were elected ‘ex commentariis Servii Tullii.’ But this carries us beyond the fall of the monarchy, and belongs to the next chapter.

CHAPTER XIV

THE EARLY REPUBLIC