i. Br., 1855. Steinike, De equitatu Romano, Halle, 1864. Belot, Histoire des chevaliers romains, Paris, 1869-73. Müller, Die Eintheilung des servianischen Heeres und die sex suffragia equitum (Philologus, 1876, p. 126, sqq.) Gerathewohl, Die Reiter und die Centurias equitum zur Zeit der röm. Republik, München, 1883. Mommsen, Röm. Staatsr., III. p. 476, sqq.

Origin of the Senate.-References :-Mommsen, Röm. Forschungen, I. p. 218, sqq.; 250, sqq., Staatsrecht, III. 2. Lattes, Della composizione del senato romano nell' età regia, Milano, 1868. Willems, Le sénat de la République romaine, Louvain, 1878. Bloch, Les origines du senat romain, Paris, 1883.

CHAPTER III.

ON THE GENERAL PRINCIPLES OF THE ROMAN CONSTITUTION AND THE RIGHTS OF THE DIFFERENT CLASSES OF PERSONS WHO FORMED THE POPULATION OF THE ROMAN EMPIRE.

For REFERENCES to STANDARD AUTHORITIES on the subjects treated of throughout this Chapter, vide APPENDIX.

The Roman State, regarded as a body of men politically organised and in occupation of a certain territory, was, from the earliest period to which history or tradition extend, regulated and controlled by three powers, distinct from, but not independent of, each other. These were

1. The voice of the citizens (Cives) who formed the Populus Romanus, as expressed in their constitutional assemblies (Comitia.)

2. The magistrates (Magistratus.) When we speak of the regal period, we may say, the one supreme magistrate-the King (Rex.)

3. The Senate (Senatus) or great council of state.

1. Cives.-The voice of the Cives or Populus Romanus, as expressed in their Comitia, was, according to the theory of the Roman constitution, absolutely supreme. To them belonged the Summum Imperium, and all power whatsoever emanated from them either directly or indirectly. The chief points in which the citizens exercised their power directly were-(1.) In the enacting and repealing of laws (leges scribere.) (2.) In the election of magistrates (magistratus creare.) (3.) In the declaration of war, (bellum indicere,) and the conclusion of peace, (pacem facere,) to which we may add-(4.) In deciding, as a court of last appeal, all matters affecting the life, personal freedom, or permanent political privileges of one of their own body (de capite civis Romani iudicare.) We may observe that (3) and (4) are in reality included in (1); for all questions concerning a declaration of war and the ratification of a peace, as well as those which involved the criminal impeachment of a citizen, were submitted to the people in the form of proposed laws (rogationes.)

1

Such were the powers of the people, as recognised in the best period of their history, and exercised until the complete establishment of the imperial government under Tiberius. We cannot, however, suppose that these rights and privileges were fully developed, understood, and enforced during the ruder ages of the state, when they must have reposed much more upon traditional usage than upon written laws, and when the amount of power exerted by the kings, although controlled by public opinion, as in the case of the early Greek communities and of Arab tribes, must have depended to a considerable extent upon the temper and talents of the individual monarch.

See especially Polyb. VL 14.

It must be observed, moreover, that the power of the people, as exercised in their Comitia, was at all times limited by two restrictions.

a. The Comitia could not meet unless summoned, according to prescribed forms, by one of the higher magistrates.

b. In so far as the passing of laws was concerned, no private citizen could in these assemblies originate any measure whatsoever. When called together, they were asked (rogabantur) to agree to some specific proposal, hence termed generally a Rogatio, and this they could absolutely accept or absolutely reject, but they could neither change nor modify it.

2. Magistratus.-The magistrates formed the executive, being individuals chosen by, and responsible to, the citizens. To them was intrusted the duty of administering the laws and carrying into effect the orders of the people. For nearly two centuries and a-half after the foundation of the city there was one supreme magistrate, raised far above all others, who retained his office for life, and bore the title of Rex. But in the great revolution of A.U.C. 244, the reigning king was dethroned, the office abolished, and, instead of one chief magistrate, who held his power for life, two magistrates, called Consules, were chosen, who were upon an equality with each other, and whose period of office was limited strictly to the space of one year. By degrees, the various functions, discharged originally by the king alone and then committed to the consuls, were distributed among a number of other magistrates, new offices being instituted from time to time.

3. Senatus.-The Senate was a council of state, interposed, as it were, between the people and the magistrates. Its duty was to advise, although it could not control, the former, and to watch over and guide the latter in the performance of the duties assigned to them. To the Senate was committed the management of the public money; and it discharged many most important functions connected with the administration of public affairs, which will be described at large hereafter.

We have repeatedly used the words "citizens" and "Roman people" in the above remarks, and before proceeding farther it is necessary to ascertain what constituted a Romanus Civis. For this purpose we must consider the classification of mankind adopted by the Romans, in so far as political and social privileges were concerned.

The first grand division was into (1.) Freemen, that is, persons possessed of personal freedom, (liberi,) and (2.) Slaves (servi.)

Again, free men might be either persons born free (ingenui) and who had never been in slavery to a Roman, or persons who had once been slaves but had been emancipated (libertini.)

Omitting, for the present, the consideration of Servi and Libertini, who will form the subject of a separate section, we shall confine ourselves to Ingenui, that is, persons free and free-born, and who had never been in slavery to a Roman. Ingenui might be either (1.) Romani Cives, that is, members of the Roman state, or (2.) Peregrini, that is, persons not members of the Roman state, or (3.) Latini, a class who occupied a sort of intermediate place between Romani Cives and Peregrini.

ROMANI CIVES. IUS CIVITATIS.

The characteristic rights of Roman citizens were divided into-1. Publica Iura. 2. Privata Iura.

The Publica Iura were comprehended under the three following heads :

1. Ius Suffragi, the right of voting in the popular assemblies.

2. Ius Honorum, the right of being eligible to all public offices, whether civil, military, or sacred.

3. Ius Provocationis, the right of appealing from the magistrates to the Comitia when impeached of any crime involving life, personal freedom, or a permanent loss of political and social privileges.

The Privata Iura were comprehended under two heads :—

1. Ius Connubii, the right of contracting a regular marriage.

2. Ius Commercii, the right of acquiring, transferring, and holding property of all kinds according to the Roman laws.

Any one who was in full enjoyment of all these rights was a Civis Optimo
Iure;
and these rights, taken collectively, constituted the Ius Civitatis s. Ius
Quiritium.1

It is evident from what has been said in the second chapter, that, in the earliest ages of the state, the Patricians alone were Cives Optimo Iure. The Plebeians did not enjoy the Ius Suffragii at all until included in the Classes of Servius Tullius. The Ius Provocationis was first bestowed upon them by the Lex Valeria, passed B.C. 509, immediately after the expulsion of the kings; they were not admitted to the Ius Connubii until after the passing of the Lex Canuleia in B.C. 445; and the Ius Honorum was not gained without many desperate struggles, which were not brought to a close until B.C. 367, when the consulship was thrown open by the Lex Licinia. Within a few years from that date, in B.C. 337, the last civil barrier between the Patricians and the Plebeians was broken down by the admission of the latter to the Praetorship, and in B.C. 300, the Lex Ogulnia threw open the priesthood also."

Mode of acquiring the Ius Civitatis.-The lus Civitatis, or, as it is very frequently termed, simply Civitas, was acquired in one of two ways

1. By birth. 2. By gift. To these we might add, 3. By manumission which we shall discuss under the head of slaves. (Ut sit civis aut natus sử oportet aut factus.) 3

3

1. Cives (Nati.)-The child of two persons who could contract a regular marriage, (iustum matrimonium,) that is, who had reciprocally the lus Connubii, was by birth a Roman citizen, provided both his parents possessed the Ius Civitatis. The position occupied by the children of parents who could not contract a regular marriage, in consequence of the absence of the Ius Connubii, will be explained fully when we treat of the law of marriage, (p. 294).

2. Cives (Facti.)-Foreigners (peregrini) might receive the Civitas as a gift, (dare civitatem-donare civitate,) either individually or as members of a community. The power of conferring this gift, at the period when the Civitas belonged exclusively to the Patricians, seems to have been vested in the King, acting with the consent of the Comitia Curiata; and the rapid increase of Rome in the earliest epoch, must be in a great measure ascribed to the liberality with which this gift was bestowed, numbers having been received freely into the 1 A distinction was drawn by the lawyers of the empire between the Ius Civitatis and the Iue Quiritium; but it is uncertain, and of no practical importance in so far as the classical writers are concerned.

4

2 We must bear in mind that a considerable portion of the community, although unques. tionably members of the Roman state, and entitled to the appellation of Cires, were not Cives Optimo iure. No youth, until he was of age to serve in the army, could exercise the suffrage; and Roman women, although strictly Cires Romanae, were under no circum stances admitted to the Ius Suffragii nor to the Ius Honorum.

3 Quintil I O. V 10 § 65.

Dionys. I 9. Liv. IV. 4. Cic. pro. Balb. 13.

1

ranks of the Patricians, (per cooptationem in patres,) when the parties brought an accession of strength to the community. One of the most notable examples upon record was the admission of the whole Gens Claudia, six years after the expulsion of the kings. As the power of Rome extended, the privileges conferred by Civitas, became more valued, were sought with eagerness and obtained with difficulty. It was bestowed chiefly as a reward for faithful and efficient services, sometimes on individuals, and occasionally on whole communities; but during the more flourishing period of the commonwealth, an express law, passed regularly by either the Tribes or the Centuries, was indispensable. Towards the close of the republic, the people occasionally delegated this power to some of their favourite leaders, such as Marius and Pompeius, while Sulla and Cæsar, when they obtained unconstitutional supremacy, exercised it freely, and apparently without challenge; but this was after the privilege had become less valuable, in consequence of the admission of all the Italian states at the close of the social war. Under the empire the power was assumed by the prince, and at length Caracalla bestowed the Civitas on all the free inhabitants of the Roman world.

Civitas sine Suffragio. Caerites.-It sometimes happened that the Civitas was bestowed upon a state, with a limitation excluding the Ius Suffragii, and, as a necessary consequence, the Ius Honorum. The first example of this on record was the honour conferred upon the inhabitants of Caere, in consequence of their having received and hospitably entertained the Vestal Virgins and their Sacra at the time when Rome was captured by the Gauls-Primos autem municipes sine suffragii iure Caerites esse factos accepimus, concessumque ut civitatis Romanae honorem quidem caperent sed negotiis tamen atque oneribus vacarent pro sacris bello Gallico receptis custoditisque *—and a similar distinction was granted to the Acerrani, B.C. 332.—Romani facti Acerrani lege ab L. Papirio praetore lata qua civitas sine suffragio data.

illis

Aerarii. But although the gift of the Civitas sine Suffragio was a high compliment and a valuable privilege to the Caerites, it was, of course, a degradation for a civis optimo iure to be placed upon the same footing with them, since it implied the loss of an important portion of his rights. Hence, one of the modes in which the censors marked their displeasure towards a citizen, was by omitting his name from the roll of the Tribe or Century to which he belonged and entering it in a separate register. Those who in this manner were deprived of the Ius Suffragii were said referri in tabulas Caeritum; and Horace designates men of small worth as Caerite cera digni. The constitutional name for this class of persons was Aerarii; because, although reduced to an inferior position, they were still bound to contribute, as tax-payers, to the public treasury. The censors, when they inflicted this penalty, were technically said referre aliquem in aerarios s. inter aerarios s. in numerum aerariorum; and on the other hand, when they reinstated an aerarius in his former position, eximere ex aerariis. €

1 Liv. II. 16. Suet. Tib. 1.

2 Dionys. V. 40. Liv. III. 29. IV. 4. VIIL 11. Cic. pro Balb. 8. 9. 2. 3. 24

3 See Cic. pro Balb. 8. 20. 21. and indeed the whole speech, pro Arch. 10. ad Fam. XIII. 36. Dion Cass. XLL 24.

4 Aul. Gell. XVI. 13. The Schol. Cruq on Hor. Epp. I. vi. 62. gives a somewhat different account. Compare also Liv. V. 50. VII. 19.

5 Liv. VIII. 17.

The account of the aerarii given above seems to be simple and rational; but our infor. mation on this topic is sadly defective. The chief authorities are, Pseud. Ascon. in Cla divin. in Q. C. 3 Schol. Cruq. in Hor. Epp. I. vi. 62. Aul. Gell. XVL 13. comp. Liv. IV. 24 XXIV 18. Cic. pro Cluent. 43. de Orat. 66. Val. Max. 11. ix. 6. 7.