Abbildungen der Seite
PDF
EPUB

CHAPTER IIL

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.

The Roman State, regarded as a body of men politically organized, was, from the earliest period, regulated by three powers. 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), or in the regal period, the King (Resc).

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 supreme. To them belonged the Summum Imperium, and all power whatsoever emanated from them. (1.) They enacted and repealed laws (leges scribere). (2.) Elected magistrates (magistratus creare). (3.) Declared war (bellum indicere), and concluded peace (pacem facere). (4.) Decided, as a court of last appeal, all matters affecting the life, personal freedom, or permanent political privileges of a Roman citizen (de capite civis Romani iudicare). "The power of the Comitia was limited by two restrictions.

a. The Comitia could not meet unless summoned by one of the higher magistrates.

6. No private citizens could in these assemblies originate any law whatsoever. When called together, they were asked (rogabantur) to agree to some specific proposal, hence termed generally a Rogatio.

2. Magistratus.To the magistrates was entrusted 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 (Rex), who retained his office for life. But by the great revolution of A.U.C. 244, instead of one chief magistrate, two magistrates called Consules were chosen, whose period of office was limited strictly to the space of one year.

3. Senatus.—The Senate was a council of state, whose duty was to advise, watch over and guide the magistrates in the performance of state duties. To the Senate was committed the management of the public money; and they discharged many other important functions which will be more particularly described in Chapter VL

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

Again, freemen 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).

We shall here confine ourselves to (Ingenui), that is, persons free, and free-born.

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 Suffragii, the right of voting.
2. Ius Honorum, the right of being eligible to public offices.

3. Ius Provocationis, the right of appealing from the magistrates to the Comitia.

The Privata Iura were comprehended under two heads :-
1. Ius Connubii, the right of contracting a lawful 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 constituted the Ius Civitatis s. Ius Quiritium. 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 the Plebeians by the Lex Valeria, passed B.C. 509, the Ius Connubiï by the Lex Canuleia in B.C. 445; and the Ius Honorum was not gained until B.C. 367, when the consulship was thrown open by the Lex Licinia. 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 Prætorship, and in B.C. 300, the Lex Ogulnia threw open the priesthood also.

Mode of acquiring the Ius Civitatis.-The Ius Civitatis, or simply Civitas, was acquired in one of three ways

1. By birth. 2. By gift. 3. By manumission (Ut sit civis aut natus sit oportet aut factus).

1. Cives ( Nati.)— The child of two persons who could contract a lawful marriage (iustum matrimonium), that is, who had reciprocally the Ius Connubii, was by birth a Roman citizen, provided both his parents possessed the Ius Civitatis.

2. Cives (Facti.)—Foreigners (peregrini) might receive the Civitas as a gift (dare civitatem-donare civitate).

3. Manumission we shall discuss under the head of Slaves.

As the power of Rome extended, the privileges conferred by Civitas were bestowed chiefly as a reward for faithful services, sometimes on individuals, and occasionally on whole communities ; but during the more flourishing period of the Commonwealth, an express law was indispensable. Towards the close of the republic, the people occasionally delegated this power to some of their favourite leaders.

Civitas sine Suffragio.-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.

Aerarii.—But although the gift of the Civitas sine Suffragio was a valuable privilege to the Caerites, it was, of course, a degradation for a civis optimo iure. Hence, those citizens, who in this manner were deprived by the Censors of the Ius Suffragiż 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, though thus reduced, they were still bound to contribute as tax-payers to the public treasury.

This leads us to consider generally the various ways in which the Civitas might be forfeited

or impaired. Caput. Status.—

The Caput of an individual, in legal phraseology, denoted his personal privileges as a freeman, as a member of a familia, and as the possessor of certain political rights; his Status was the position which he occupied in the community in virtue of his Caput. Hence the expressions Crimen CapitaleIudicium Capitis Poena Capitalis do not necessarily imply a charge, a trial, or a penalty, in which the life of an individual was at stake, but one which involved the forfeiture or abridgment of his political and social rights. Any loss of this nature was termed Deminutio Capitis, and necessarily produced Status Permutatio.

The jurists distinguished three degrees

1. Deminutio Capitis maxima. 2. Deminutio Capitis minor. 3. Deminutio Capitis minima.

1. Deminutio Capitis maxima consisted in the loss of personal freedom, which implied the loss of Civitas. A Roman citizen might be sold into slavery for refusing to answer to his name when the consul was holding a levy, for deserting to the enemy, for mutilating himself in such a manner as to become incapable of

a

serving. A citizen might also be sold into slavery for wilfully avoiding enrolment in the censor's books, in order to escape taxation; and, according to the laws of the XII. Tables, an insolvent debtor was liable to the same penalty, but this was abrogated by the Lex Poetelia.

2. Deminutio Capitis minor implied loss of the Civitas, or at least of the full Civitas, without loss of personal freedom. This might happen in various ways. A Roman citizen who became a member of a Colonia Latina, or of another state, ceased, ipso facto, to be a Roman citizen. When a Roman, to escape from the penalty incurred by a criminal trial, betook himself to some foreign country, he was said, mutare solumvertere solum-ire exsulatumire in exsilium, and his return was prevented by an order of the people, prohibiting him from the use of fire and water (aquae et ignis interdictio), so that he virtually forfeited all his political privileges as a Roman citizen. If the interdiction was removed (ex exsilio revocare), he might resume his former position. Thus, È xsilium is said by Cicero to be unknown in Roman law as the name of a punishment-exsilium enim non supplicium est sed perfugium portusque supplicii. Under the empire, however, there were two forms of banishment, Relegatio and Deportatio. Relegatio consisted in simply sending away an offender from Rome to some place where he was compelled to remain, enjoying, however, personal freedom, and retaining his Civitas. Deportatio, on the other hand, was accompanied with personal restraint, for he was usually conveyed to one of the small rocky islets off the coast of Italy, or in the Aegean, which were ip reality state prisons.

3. Deminutio Capitis minima was in no way connected with Libertas or Civitas, but resulted in certain cases from a change of family (mutatio familiae).

Infamia.—If a Roman citizen was found guilty of a crime which involved personal turpitude (turpi iudicio damnatus), such as theft (furtum), wilful fraud (dolus malus), or if he followed any disgraceful occupation, he became, in the eye of the law, Infamis, and incapable of holding any honourable office turpi iudicio damnati omni honore ac dignitate privantur.

Ignominia, again, was the result of the expressed disapprobation of the Censors, and persons who incurred their censure were said to be ignominia notati. This, in certain cases, involved the loss of the Ius Suffragii.

PEREGRINI. The term Peregrinus, with which in early times Hostis (i. e., stranger) was synonymous, embraced every one possessed of per sonal freedom who was not a Civis Romanus.

Generally, however, Peregrinus was not applied to all foreigners indiscriminately, but to those persons only, who, although not Cives, were connected with Rome.

Persons who belonged to states at war with Rome, or to states which had no connection with Rome, were not properly styled Peregrini, but either Hostes or Barbari, as the case might be.

Peregrini resident at Rome were incapable of exercising any political functions, and had no civil rights. Hence

1. They had no locus standi in a court of law, and could be heard only when represented by a patronus, under whose protection they had placed themselves (cui sese applicuissent), like the Clients of the early ages, who appear to have occupied, with regard to the Patricians, a position in many respects analogous to that in which, at a later period, the Peregrini stood in reference to the citizens at large.

2. They were prohibited from wearing the Toga, the national Roman dress.

3. They could be expelled from Rome as often as seemed good to the Senate or people.

Hospitium. Hospes.—In the earlier stages of society, when the population of Greece and Italy consisted of numerous independent tribes, every stranger was looked upon with suspicion, and he must have found it difficult to supply his wants or procure shelter. Hence, it became common for a person who visited a foreign country, to form previously a connection with a citizen of that country, who might be ready to receive him as a friend and act as his protector.

Such a connection was always strictly reciprocal. An alliance of this description was termed Hospitium, the parties who concluded it were termed Hospites, and thus the word Hospes denoted either an entertainer or a guest. The obligations thus imposed were sacred, and any treachery practised (sacra hospitii temerare) was deemed sacrilege of the worst kind, entailing the direct wrath of Jupiter Hospitalis, the guardian and avenger of these mutual duties.

The league of Hospitium was hereditary, descending from father to son (paternum hospitium), so that persons might be hospites who had never seen each other. In order to prevent suspicion and fraud, the parties who in the first instance concluded this alliance, interchanged a token of mutual recognition, called tessera hospitalis; and an individual claiming the rights of Hospitium in a foreign land, sought out his Hospes and exhibited his tessera, which entitled him to the good offices which he required. In process of time, among both the Greeks and Romans, it became common for a state, when it desired to pay a marked compliment to any individual, to pass a resolution declaring him the Hospes of the whole community. Such a person was termed Hospes Publicus.

« ZurückWeiter »