The History of Rome, Book I

l Constitut

oman

ions that have been most susceptible of culture have diverged widely from each other in their conception and treatment of the natural distinctions which the household thus presents. By some they have been apprehended and wrought out more

ather and H

' daughters, along with all goods and substance pertaining to any of its members. The children of daughters on the other hand were excluded, because, if born in wedlock, they belonged to the family of the husband; and if begotten out of wedlock, they had no place in a family at all. To the Roman citizen a house of his own and the blessing of children app

o the community; and in the household itself she necessarily held a position of domestic subjection-the daughter to her father, the wife to her husband,(1) the fatherless unmarried woman to her nearest male relatives; it was by these, and not by the king, that in case of need woman was called to account. Within the house, however, woman was not servant but mistress. Exempted from the tasks of corn-grinding and cooking which according to Roman ideas belonged to the

xposure might appear, the prohibition of it soon changed its form from that of legal punishment into that of religious curse; for the father was, above all, thoroughly and absolutely master in his household. The father of the household not only maintained the strictest discipline over its members, but he had the right and duty of exercising judicial authority over them and of punishing them as he deemed fit in life and limb. The grown-up son might establish a separate household or, as the Romans expressed it, maintain his "own cattle" (-peculium-) assigned to him by his father; but in law all that the son acquired, whether by his own labour or by gift from a stranger, whether in his father's household or in his own, remained the father's property. So long as the father lived, the persons legally subject to him could never hold property of their own, and therefore could not alienate unless by him so empowered, or yet bequeath. In this respect wife and child stood quite on the same level with the slave, who was not unfrequently allowed to manage a household of his own, and who was likewise entitled to al

d might certainly pass by way of adoption into the power of another father, and the daughter might pass by a lawful marriage out of the hand of her father into the hand of her husband and, leaving her own -gens- and the protection of her own god to enter into the -gens- of her husband and the protection of his god, became thenceforth subject to him as she had hitherto been to her father. According to Roman law it was made easier for the slave to obtain release from his master than for the son to obtain release from his father; the manu

of a representative, character. Wife and child did not exist merely for the house-father's sake in the sense in which property exists only for the proprietor, or in which the subjects of an absolute state exist only for the king; they were the objects indeed of a legal right on his part, but they had at the same time capacities of right of their own; they were not things, but persons. Their rights were dormant in respect of exe

nd Clan

e deceased house-master by the whole of the nearest male members of the family; ordinarily, therefore, by sons over their mother and by brothers over their sisters. In this sense the family, once founded, endured unchanged till the male stock of its founder died out; only the bond of connection must of course have become practically more lax from generation to generation, until at length it became impossible to prove the original unity. On this, and on this alone, rested the distinction between family and clan, or, according to the Roman expression, between -agnati- and -gentiles-. Both denoted the male stock; but the family embraced only those individuals who, mounting up from generation to generation, were able to set

s of the

ed on them practical freedom. This relation had not the distinctive character of a strict relation -de jure-, like that of a man to his guest: the client remained a man non-free, in whose case good faith and use and wont alleviated the condition of non-freedom. Hence the "listeners" of the household (-clientes-) together with the slaves strictly so called formed the "body of servants" (-familia-) dependent on the will of the "burgess" (-patronus-, like -patricius-). Hence according to original right the burgess was entitled partially or wholly to resume the property of the client, to reduce him on emergency once more to the state of slavery, to inflict even capital punishment on him; and it was simply in virtue of a distinction -de facto-, that these patrimonial rights were not asserted with the same rigour against the client as against the act

man Co

n this account the Roman burgesses assumed the name of the "father's children" (-patricii-), inasmuch as they alone in the eye of the law had a father. The clans with all the families that they contained were incorporated with the state just as they stood. The spheres of the household and the clan continued to subsist within the state; but the position which a man held in these did not affect his relations towards the state. The son was subject to the father within the household, but in political duties and rights he stood on a footing of equality. The position of the protected dependents was naturally so far changed that the freedmen and clients of every patron

e

at once and by right, when the position had become vacant and the successor had been designated; but the community did not owe full obedience to the king until he had convoked the assembly of freemen capable of bearing arms and had formally challenged its allegiance. Then he possessed in its entireness that power over the community which belonged to the house-father in his household; and, like him, he ruled for life. He held intercourse with the gods of the community, whom he consulted and appeased (-auspicia publica-), and he nominated all the priests and priestesses. The agreements which he concluded in name of the community with foreigners were binding upon the whole people; although in other instances no member of the community was bound by an agreement with a non-member. His "command" (-imperium-) was all-powerful in peace and in war, on which account "messengers" (-lictores-, from -licere-, to summon) preceded him with axes and rods on all occa

er ego-; but all official power existing by the side of the king's was derived from the latter, and every official held his office by the king's appointment and during the king's pleasure. All the officials of the earliest period, the extraordinary city-warden as well as the "leaders of division" (-tribuni-, from -tribus-, part) of the infantry (-milites-) and of the cavalry (-celeres-) were merely commissioned by the king, and not magistrates in the subsequent sense of the term. The regal power had not and could not have any external check imposed upon it by law: the master of the community had no judge of his acts within the community, any more than the housefather had a judge within his household. Death alo

erent stuff from other men: noble descent and relationship with earlier rulers were recommendations, but were not necessary conditions; the office might be lawfully filled by any Roman come to years of discretion and sound in body and mind.(4) The king was thus simply an ordinary burgess, whom merit or fortune, and the primary necessity of having one as master in every house, had placed as master over his equals-a husbandman set over husbandmen, a warrior set over warriors. As the son absolutely obeyed his father and yet did not esteem himself inferior, so the burgess submitted to his ruler without precisely accounting him his better. This constituted the moral and practical limitation of the regal power. The king might, it is true, do much that was inconsistent with equity without exactly breaking the law of the land: he might diminish his fellow-combatants' share of the spoil; he might impose exorbitant task-wo

Comm

art (-tribus-) of the whole community (-tota-in Umbrian and Oscan), and the original unit became multiplied by the number of such parts. This division had reference primarily to the personal composition of the burgess-body, but it was applied also to the domain so far as the latter was apportioned at all. That the curies had their lands as well as the tribes, admit

Rome; these had uniformly the number of a hundred councillors (-centumviri-). But the same normal numbers make their appearance throughout in the earliest

he Roman constitutional tradition quite deserving of credit in such matters, while it accounts historically for the other divisions of the burgesses, makes the division into curies alone originate with the origin of the city; and in e

ry tribunes did not command the contingent of a tribe; on the contrary each individual war-tribune, as well as all in conjunction, exercised command over the whole infantry. The clans were distributed among the several curies; their limits and those of the household were furnished by nature. That the legislative power interfered in these groups by way of modification, that it subdivided the large clan and counted it as two, or joined several weak ones together, there is no indication at all in Roman tradition; at any rate this took place only in a way so limited that the fundamental character of affinity belonging to the clan was not thereby altered. We may not therefore conceive the number of the clans, and still less that of the households, as a legally fixed one; if the -curia- had to furnish a hundred men on foot and ten horsemen, it is no

of the

he nominal honorary citizenship no further meaning than that of an obligation to befriend and protect the guest (-jus hospitii-), such as had always been recognized as incumbent in reference to foreigners. But this rigorous retention of barriers against those that were without was accompanied by an absolute banishment of all difference of rights among the members included in the burgess community of Rome. We have already mentioned that the distinctions existing in the household, which of course could not be set aside, were at least ignored in the community; the son who as such was subject in property to his father might thus, in the character of a burgess, come to have command over his father as master. There were no class-privileges: the fact that the Tities took precedence of the Ramnes, and both ranked before the Luceres, did not affect their equality in all legal rights. The burgess cavalry, which at this period was used for single combat in front of the line on horseback or even on foot, and was rather a select or reserve corps than a special arm of the service, and which accordingly contained by far the wealthiest, best-armed, and best-trained men, was naturally held in higher estimation than the burgess infantry; but this was a distinction purely -de facto-, and admittance to the cavalry was doubtless conceded to any patr

of the B

there may perhaps have been added a number of light-armed men, archers especially, fighting outside of the ranks.(11) The general was regularly the king himself. Besides service in war, other personal burdens might devolve upon the burgesses; such as the obligation of undertaking the king's commissions in peace and in war,(12) and the task-work of tilling the king's lands or of constructing public buildings. How heavily in particular the burden of building the walls of the city pressed upon the community, is evidenced by the fact that the ring-walls retained the name of "tasks" (-moenia-). There was no regular direct taxation, nor was there any direct regular expenditure on the part of the state. Taxation was not needed for defraying the burdens of the community, since the state gave no recompense for serving in the army, for task-work, or for public service generally; so far as there was any such recompense at all, it was given to the person who performed the service either by the district primarily concerned in it, or by the person who could not or wou

ve been considerable. The ground won by arms, in particular, appears to have been constantly regarded as property of the state. Whether and how far the king was restricted by use and wont in the administration of the public property, can no longer be asce

of the

ity to be held regularly twice a year, on the 24th of March and the 24th of May, and as often besides as seemed to him necessary. The burgesses, however, were always summoned not to speak, but to hear; not to ask questions, but to answer. No one spoke in the assembly but the king, or he to whom the king saw fit to grant liberty of speech; and the speaking of the burgesses consisted of a simple answer to the question of the king, without discussion, without reasons, without conditions, without breaking up the question even into parts. Nevertheless the Roman burgess-community, like the Germanic and not improbably the primitive Indo-Germanic communities in gene

d a deviation from the ordinary consistency of the legal system. In the ordinary course of law any one might without restriction give away his property to whom he would, but only upon condition of its immediate transfer: that the property should continue for the time being with the owner, and at his death pass over to another, was a legal impossibility-unless the community should allow it; a permission which in this case the burgesses could grant not only when assembled in their curies, but also when drawn up for battle. This was the origin of testaments. In the ordinary course of law the freeman could not lose or surrender the inalienable blessing of freedom, and therefore one who was subject to no housemaster could not subject himself to another in the place of a son-unless the community should grant him leave to do so. This was the -abrogatio-. In the ordinary course of law burgess-rights could only be acquired by birth and could never be lost-unless the community should confer the patriciate or allow its surrender; neither of which acts, doubtless, could be validly done originally without a decree of the curies. In the ordinary course of law the criminal whose crime deserved death, when once the king or his deputy had pronounced sentence according to judgment and justice, was inexorably executed; for the king could only judge, not pardon-unless the condemned burgess appealed to the mercy of the community and the judge allowed him the opportunity of pleading for pardon. This was the beginning of the -prov

Se

acting for the people. Certainly that stage of independence when each clan was virtually a state was surmounted in the Latin stock at an immemorially early period, and the first and perhaps most difficult step towards developing the community out of the clan-organization-the setting aside of the clan-elders-had possibly been taken in Latium long before the foundation of Rome; the Roman clan, as we know it, is without any visible head, and no one of the living clansmen is especially called to represent the common patriarch from whom all the clansmen descend or profess to descend so that even inheritance and guardianship, when they fall by death to the clan, devolve on the clan-members as a whole. Nevertheless the original character of the council of elders bequeathed many and important legal consequences to the Roman senate. To express the matter briefly, the position of the senate as something other and more than a mere state-council-than an assemblage of a number of trusty men whose advice the king found it fitting to obtain-hinged entirely on the fact that it was once an assembly, like that described by Homer, of the princes and rulers of the people sitting for deliberation in a circle round the king. So long as the senate was formed by the aggregate of the heads of clans, the number of the members cannot have been a fixed one, since that of the clans was not so; but in the earliest, perhaps even in pre-Roman,

the Senate. Th

at once took his place and exercised the prerogatives of regal power. According to the immutable principle however that only one can be master at a time, even now it was only one of them that ruled, and such an "interim king" (-interrex-) was distinguished from the king nominated for life simply in respect to the duration, not in respect to the plenitude, of his authority. The duration of the office of -interrex- was fixed for the individual holders at not more than five days; it circulated accordingly among the senators on the footing that, until the royal office was again permanently filled up, the temporary holder at the expiry of that term nominated a successor to himself, likewise for five days, agreeably to the order of succession fixed by lot. There was not, as may readily be conceived, any declaration of allegiance to the -interrex- on the part of t

olutions of the Commun

the senate devolved the duty of examining every resolution adopted by the burgesses at the suggestion of the king, and of refusing to confirm it if it seemed to violate existing rights; or, which was the same thing, in all cases where a resolution of the community was constitutionally requisite-as on every alteration of the constitution, on the reception of new burgesses, on the declaration of an aggressive war-the council of elders had a right of veto. This may not indeed be regarded in the light of legislation pertaining jointly to the burgesses and the senate, somewhat in the same way as to the two chambers in the constitutional state of the present day; the senate was not so much law-maker as law-guardian, and could only cancel a decree when the community seemed to have exceeded its competence-to have violated by its decree existing obligations towards the gods or towards foreign states or organic institutions of the community. But still it was a matter of the greatest importance t

e As Stat

atives which we have previously described, that the subsequent extensive powers of the senate were developed; but it was in its origin insignificant and really amounted only to the prerogative of the senators to answer, when they were asked a question. It may have been usual to ask the previous opinion of the senate in affairs of importance which were neither judicial nor military, as, for instance-apart from the proposals to be submitted to the assembly of the people-in the imposition of task-works and taxes, in the summoning of the burgesses to war-service, and in the disposal of the conquered territory; but such a previous consultation, though usual, was not legally necessary. The king convoked the senate when he pleased, and laid before it his questions; no senator might declare his opinion unasked, still less might the

l Constitut

to overturn the illegal decrees of the community. The royal power itself was, as Sallust says, at once absolute and limited by the laws (-imperium legitimum-); absolute, in so far as the king's command, whether righteous or not, must in the first instance be unconditionally obeyed; limited, in so far as a command contravening established usage and not sanctioned by the true sovereign-the people-carried no permanent legal consequences. The oldest constitution of Rome was thus in some measure constitutional monarchy inverted. In that form of government the king is

bitrary and unjust proceeding. Far more restricted still was the power of the community in respect of the rights of property and the rights of family which were coincident, rather than merely connected, with these; in Rome the household was not absolutely annihilated and the community aggrandized at its expense, as was the case in the police organization of Lycurgus. It was one of the most undeniable as well as one of the most remarkable principles of the primitive constitution of Rome, that the state might imprison or hang the burgess, but might not take away from him his son or his field or even lay permanent taxation

ent must have intervened between such constitutions as the poems of Homer and the Germania of Tacitus delineate and the oldest organization of the Roman community. In the acclamation of the Hellenic and in the shield-striking of the Germanic assemblies there was involved an expression of the sovereign power of the community; but a wide interval separated forms such as these from the organized jurisdiction and the regulated declaration of opinion of the Latin assembly of curies. It is possible, moreover, that as the Roman kings certainly borrowed the purple mantle and the ivory sceptre from the Greeks (not from the Etruscans), the twelve lictors also and various other external arrangements were introduced from abroa

r Book I

ideas of "formal delivery" (-coemptio-), and "prescription" (-usus-), were applied without ceremony to such a marriage. Till he acquired it, and in particular therefore during the period which elapsed before the completion of the prescription, the wife was (just as in the later marriage by -causae probatio

to a much later period, is not unworthy to ha

ntes nominarunt Claudiam, Suom mareitum corde dilexit sovo, Gnatos duos creavit, horunc alterum In terra linqu

nscr. La

ulcherrima, lanifica pia pudica frugi casta domiseda-. Orelli, 4861: -modestia probitate pudicitia obsequio lanificio diligentia fide par similisque cetereis probeis femina fuit-. Epit

I. Clan-

ship was a condition for the regal office as well as for the consulate, is so very self-evident as

I. Clan-

the very same formality which we have other reasons for regarding as the oldest of all those that are mentioned in our legal traditions, the -confarreatio-. It seems sca

jurists know, simply that which has once been or may hereafter come

rimitive Ra

as divinities that hurl the spear; and, employed in reference to men, -quiris- is the warrior, that is, the full burgess. With this view the -usus loquendi- coincides. Where the locality was to be referred to, "Quirites" was never used, but always "Rome" and "Romans" (-urbs Roma-, -populus-, -civis-, -ager Romanus-), because the term -quiris- had as little of a local meaning as -civis- or -miles-. For the same reason these designations could not be combined; they did not say -civis quiris-, because both denoted, though from different points of view, the same legal conception. On the other hand the solemn announcement of the funeral of a burge

ty was once confronted by a Quirite community of a similar kind, and that after their incorporation the name of the newly recei

tias (in Dionys. i. 13, comp. iii. 41) assigns to the earliest Roman cavalry a leader, Celer, and three centurions; whereas in the treatise De viris ill. i, Celer himself is termed -centurio-. Moreover Brutus is affirmed to have been -tribunus celerum- at the expulsion of the kings (Liv. i. 59), and according to Dionysius (iv. 71) to have even by vi

was nominated only on extraordinary occasions and was in later times no longer nominated at all, cannot possibly have been identical with the magistracy that was required for the annual festival of the 19th March and was consequently a standing office. Laying aside, as we necessarily must, the account of Pomponius, which has evidently

y old forms -velites-and -arquites-and by

V. Th

he Tibur and

a contract whose terms the proposer dictates and the other party simply accepts or declines; as was usually the case, e. g. with public -licitationes-. In the -lex pu