Chapter I: The Earliest Constitution of Rome (3)

(i.) The control over priesthood and _cultus_ belongs to the history of religion rather than to that of constitutional law, and it chiefly presents a legal aspect in connexion with the question of religious jurisdiction. The difficult questions that arose in Republican times from the clashing of the religious and the civil power could hardly have been heard of as yet, for the supreme control of both was vested in the same man. But the very nature of this disciplinary jurisdiction over priests has been a matter of some dispute. The favourite hypothesis of a family jurisdiction has been applied to the case, and the hypothesis may conceivably be correct so far as the Flamens and the Vestals are concerned, although even in this sphere it is doubtful by what paternal right the head of religion could do the Vestal’s paramour to death. Other phases of the power are still more inexplicable on this ground. A right of punishing augurs for a breach of ritualistic rules survived into the Republic, and seems to be a jurisdiction exercised over them as members of a religious body. There is, however, no trace of the priesthood holding a privileged position, and in all secular matters its members are subject to the ordinary law. Such privileges as they possess rest on religious scruples. When the Flamen was caught (_captus_) for the god, he became free from the paternal power,[207] and the civil authority could not compel him to take an oath.[208] The persons of the Vestals were inviolable;[209] the sanctity of both Flamens and Vestals also invested them with the right of _asylum_. The bonds were struck off the prisoner who took refuge in the Flamen’s house; and, if the criminal on the way to punishment met him or the Vestal, he could not be scourged or executed on that day. But it is only in these two cases that the severance from the world is strongly marked; we have no reason for believing that, in the earliest period of Rome’s history, the members of the religious orders were isolated from the mass of the people with privileges and a jurisdiction all their own.

The control of the _cultus_, and the maintenance of its purity, are marked as one of the earliest duties of the _pontifex maximus_, and must have belonged to the king. It is he that sees that no ancestral right is neglected, no foreign one acquired.[210] Here we have a religious power that governs more than the priesthood; the maintenance of the _sacra privata_ are as important in its eyes as that of the _sacra publica_, and its supervision must have extended beyond the limits of the Patriciate; for it is impossible to believe that religion cared only for the _sacra_ of the patrician clans, and aimed only at preventing them from corrupting their ancestral worship. The Plebeian and the client were under the protection of the gods, and might bring down a curse on the community by reckless innovation or neglect.

(ii.) The control exercised by _fas_ over the citizens’ life in matters not immediately connected with ritual and worship may be first illustrated by its penal sanctions. We cannot, indeed, say that there was a time when the Roman law regarded every crime as a sin, for from the very first we are confronted with a dualism, and religious and secular sanctions exist side by side. But religion has left a deeper impress here than elsewhere—in the name given to punishment,[211] in the form of its infliction, in the still stranger fact that, by the disappearance of religious sanctions, breaches of obligation that the modern world regards as crimes remained unpunished by the secular arm.

The punishment for sin must be some form of expiation. This is the _piaculum_ adjudged in the monarchy as in Republican times by the head of religion; and not adjudged arbitrarily, for even by the close of the monarchical period classes of offences had doubtless been drawn up by the pontiffs with the equivalent expiation, which was directed to avert the anger of the gods from the whole community. Apart from the regularly recurring lustrations at the census—the consequence of the sense of universal sinfulness in the community—individual misdeeds could be expiated in this way. Such was a murder that was unintentional or in which mitigating circumstances were present,[212] and such was the violation of the chastity of Juno’s person through the touching of her altar by a _paelex_.[213] In graver cases expiation could only be accepted where there was no intent,[214] as in the wrong done to a god by swearing falsely in his name.[215] There was also a class of deadly sins for which the gods would accept no atonement but the life and the goods of the sinner himself. Amongst the acts which called forth this _consecratio capitis_ were the violation of the relations of client and patron,[216] the ill-treatment of elders by their children,[217] the pulling up or alteration of boundary stones,[218] the destruction of a neighbour’s corn by night.[219] The god thus appeased was often the deity who was held to be specially offended by the act; but sometimes the head and the goods were not dedicated to the same divinities. The person was adjudged to Jupiter, the dispenser of life; the landed property to the gods who nourish the human race, Ceres and Liber.[220] This custom of consecration gradually ceased to have its literal fulfilment. A man might still be declared _sacer_, but excommunication had taken the place of immolation. Such a man was cut off from all divine and, therefore, from all human help, and his slayer was blood-guiltless.[221] This theory, of a man being cut off from the community while his life was spared, became of great importance in the history of Roman criminal law. It survived in the “interdiction of fire and water” (_aquae et ignis interdictio_), and familiarised the Romans with the idea that the severest penalty did not require the sacrifice of life.

In matters of private law we have already witnessed the presence of religion in marriage, adoption, testament, and the transmission of the _sacra_. Its authority may be further illustrated by the formularies of civil procedure. Here the form of words was all-important, and in the early Republic all binding _formulae_, whether for oaths that were to be effectual, for vows or for consecration, were known only to the pontiffs. The solemn forms of law (_legis actiones_) issued from the same authority, and in one of their most frequent manifestations, the _sacramentum_, the procedure was distinctly religious.[222] But who could say whether the king, when he gave the prescribed form of words for an action, acted as a religious or a civil head, as the representative of _fas_ or _jus_? Here we are on the borderland between the two.

(iii.) Nations know no common _jus_, and _fas_ is the sole support of international law. Each people is protected by its own divine guardians; hence a war of two nations is a contest between their gods, and a treaty between two peoples a compact between their respective divinities. But each nation is to some extent under the protection of the other’s gods. Jupiter of Rome is powerless if the war commenced by Rome is unjust, and will punish his own people if they have stained his honour by violating a treaty. Even though there is no belief in community of guardianship, the rights of other peoples are still conceived to be under the protection of the Roman gods.

These beliefs necessitated elaborate religious preliminaries to the declaration of a war in order that it might be just and holy (_justum piumque_),[223] as well as ceremonies for the conclusion of a peace that was to bind the public conscience (_fides publica_).[224] Such a ritual may have been performed, originally, by the king himself; but tradition states that, at a very early period, a special guild of priests, the Fetiales or public orators, were appointed for this purpose.[225] Their chief functions were the declaration of war and the conclusion of peace, but the ritual observed in both of these acts may be more appropriately described when we are dealing with the international relations of Rome. There were other religious preliminaries to a war which, though not necessitated by divine law, it was highly expedient to observe, in order to increase the chances of victory. Vows (_vota_) were offered to the native gods, and for these to be valid they must be couched in a form prescribed by the pontifical college.[226] And sometimes the king, before a battle or a siege, chants an incantation (_carmen_), the purport of which is to weaken the loyalty of the enemies’ gods to their worshippers, and to bring them over to the side of Rome. He bribes them with temples, offerings, and the honours of a special cult.[227] If the bribery is effective and the city falls, he must carry out his pledge. The conquered gods are received at Rome; and their worship is guaranteed by the distribution of their cults over the patrician clans.[228] The instances preserved of this _devotio_ and _evocatio_ naturally date from the time of the Republic.[229] During this period the forms are prescribed by the pontiffs. But the antiquity of the procedure is beyond question. The results of evocation on the part of the king, who was his own pontiff, are manifested in the local worships of the conquered towns of Latium, which found an early home at Rome.

If we turn from the religious to the civil powers of the king, it is easier to estimate their extent than to determine the precise modes of their exercise. Later belief credited him with the sole executive power of the state. The Roman kings possessed πᾶσα ἀρχή, and exercised the _imperium_ at their own discretion.[230] Such statements are not surprising if we remember what is implied in the _imperium_, and that there appear to have been no legal limitations to its exercise during the monarchy. _Imperium_ implied the combination of the highest military and civil authority; it united jurisdiction with command in war, and it included the further right of intercourse with the people (_jus rogandi_); while the later restrictions on this power, the limitation of office by time or by colleagueship, had not yet been created. The king held office for life, and he had no colleague; for the other officials in the state must have been mere delegates whom, in the strict theory of the constitution, he permitted to exist.

But if the king’s power was legally free from restraint, and we do not believe that there was any large body of _leges_ binding his authority, it could not have been free from the limitations imposed by custom and constitutional usage. Customary law securing rights for the people is said to have been raised to the level of positive law by Servius Tullius.[231] But even the earlier usages must have formed a kind of code—such a code as that which contained the pontifical ordinances known as the _leges regiae_.[232] It was the belief in the existence of this early customary law which led to the later description of the king’s power as an _imperium legitimum_.[233] Amongst his constitutional obligations was that of consulting the Senate in any important matter.

There can be little doubt that the original council of elders (_senatus_) was a body of nominees selected by the king as his permanent advising body (_consilium publicum_).[234] In consequence the position of senator could not have been a life-office; there could neither have been any definite mode of attaining the dignity, nor any claim on the part of an individual to retain it. A new king might decline to summon some of his predecessor’s councillors; he might even, perhaps, change the _personnel_ of his advisers during the course of his reign. It was in later times believed that the freedom of selection was so great that no stigma attached to members who were “passed over” (_praeteriti_) by the king.[235]

Yet tradition attributes a definiteness to the Senate which is not consistent with the idea of a purely arbitrary selection. Its numbers at any given time are fixed, and it is to some extent made representative of the whole patrician community—for an increase in the number of full burgesses involved a corresponding increase in the numbers of this body.[236] The number, originally 100,[237] was raised by successive steps to 300 before the close of the monarchy.[238] The two obvious units of representation were the _curiae_ and the clans; but the latter, from their larger numbers, formed a better basis for reflecting the opinion of the whole community, and tradition does seem to have imposed a kind of constitutional necessity on the king of distributing his councillors as evenly as possible amongst the patrician _gentes_.[239] It was thus that the distinction between the older and the newer clans was perpetuated in the procedure of the Senate;[240] but the clan-influence left its strongest mark by giving a name to the members of the body itself. It was the leading heads of families (_patres familias seniores_) that the king summoned; and, in asking their advice, he addressed them as “heads of houses” (_patres_).

The primitive Senate is credited with two standing powers—the _patrum auctoritas_ and the initiation of an _interregnum_. Neither of these prerogatives was directly contemplated by the constitution, and the Senate never becomes a corporation possessing powers in its own right until the time of the Empire. Tradition mentions the “authority of the fathers” as being necessary for the appointment of a new king; it leaves it to be inferred that it was required for the validity of laws as well, an inference probably not true of the period of the monarchy. As we have already explained, it was a legal right only in so far as it was an extreme instance of the necessity the magistrate was under of taking advice. Perhaps towards the close of the monarchy, with reference to the choice of a successor to the throne, custom had made it a standing prerogative. The _interregnum_ rests on a somewhat different basis; it was a power which religion enjoined should be in the hands of the whole patrician community—usage had delegated the power to the patrician Senate; so here again we have a prerogative which rested wholly on custom.

A privilege only less constant than these was probably the control of foreign policy. The formula of the Fetiales, which is said to have dated from their institution during the monarchy, contains the clause: “But on these matters we will consult the elders at home, how we may obtain our rights.”[241] It was thus the duty of the king to consult the Senate in all matters affecting the international relations of the state. For a declaration of war, perhaps, even this was not sufficient. Tradition believed that, in this matter, reference must be made to the people assembled in the _comitia curiata_.[242]

On the other hand, the right of making treaties (_foedera_) with states could not have been limited in this way. For the treaty made in time of peace the Senate, and perhaps the people, were consulted; but this could hardly have been the case with the treaty which closed a war and which was made on the field of battle. In the Republic there survives a shadowy and disputed right of the _imperator_ in the field to make a treaty which shall bind the people. The right was denied, but only on the ground that the general could not take an oath binding on the public conscience. But the king was at once general and high-priest; he could doubtless take this oath even without the assistance of his servants, the Fetiales.

There were other manifestations of the king’s power as general over which the people would have no control. The disposal of the booty taken in war and of the conquered lands was one of these,[243] and the statements which record this right find support in Republican survivals. The control of the spoils of war (at least of the movable portions) belongs to the Republican general, subject to the advice of his council of war and sometimes to subsequent ratification by the Senate. The first condition may have been necessary in the time of the monarchy, but hardly the second.

The council of war was a type of the smaller special _consilia_, which the king doubtless employed to advise him in different branches of the administration; and such special councils must have been chosen from the great _consilium publicum_, the Senate. One of the most important of these was that which furnished his assessors in jurisdiction. That it became the custom, in the more important cases judged by the king in person, to employ a _consilium_ of some sort, is stated in the charge brought by tradition against Tarquinius Superbus that he neglected this essential guarantee of even justice.[244] In the secular criminal jurisdiction of the king such a council would doubtless have been taken from the Senate. In the religious jurisdiction, which we have considered, the pontiffs would have been the advising board.

Senators also must have been chiefly chosen as delegates of the king, except, perhaps, those appointed for subordinate command in war;[245] there military fitness would be chiefly looked to.

The chief of these delegates was the prefect of the city (_praefectus urbi_), an _alter ego_ left behind in the capital by the king when he himself was absent in the field.[246] To him must have been delegated the whole of the executive power, and with it the right and duty of consulting the Senate. It is not probable that the right of questioning the people was or could be delegated.[247] In criminal jurisdiction a distinction was believed to have been made in the cases brought before the king; the more important were tried by himself in person, the less important transmitted to judges chosen from the Senate.[248] This may be the germ of a distinction which is said to have been perfected by Servius Tullius. Crimes affecting the public welfare he tried himself; wrongs done to private individuals he entrusted to others.[249]

This principle of delegation is mentioned only in connexion with criminal jurisdiction. But, whatever its extent, it necessitated the grant by the magistrate to his delegate of a _formula_ or _lex_, which was the expression of _jus_. This _jus_, “that which is right or fitting,” expressed the order of society, as realised through human agency, not directly through the divine will.[250] It is possible that even in early Rome it was treated as a right, a faculty of action (_facultas agendi_) or liberty enjoyed by one man against another, by individuals against corporations or by corporations against individuals. The differentiation between the rights of the state and the rights of the individual, always marked in procedure long before it is formulated in theory, finds expression in the change which tradition attributes to Servius.[251] But there was never any clear line of demarcation between the two spheres. Much of what we call criminal law was at Rome a matter for civil actions dependent on private initiative, and such actions could in early times be brought only by the head of the family. But in so far as the early Romans had a criminal law, in so far, that is, as an offence against the individual could be regarded as a wrong done to society, this law was a part of the _jus publicum_.

The king was the sole exponent of this sense of violated right, and the sole interpreter of the _jus_ fixed by custom or by law. Over the penalty he probably had little control. It was enjoined in his ruling and carried out by his lictors; but, in its various forms—death by the _arbor infelix_ or from the Tarpeian rock—it was fixed by the _mos majorum_. The trial was a personal investigation (_quaestio_) undertaken by the king, with the assistance of a chosen body of advisers; and he might give judgment himself. But sometimes his judgment was conditioned. He specified the crime under which the accused was to be tried, and the penalty to be inflicted, but left the finding on the facts to his delegates.[252] Two such classes of delegates are attributed to the regal period, the _duumviri perduellionis_ and the _quaestores parricidii_.[253]

There may have been an appeal from the delegates to the king, but tradition does not credit the king with any power of pardon. Whether the power of pardon resided anywhere depends on our interpretation of the trial of Horatius,[254] which was believed to furnish the archetype of the _provocatio_. From this story appears the belief, which is often stated by other authorities,[255] that the appeal to the people existed in the regal period, but one modified by the view that the citizens had no standing right of appeal against the king such as that secured against the Republican magistrate by the _lex Valeria_. The king, Tullus Hostilius, _allows_ the appeal.[256] The early dictatorship was similarly exempt from the necessity of permitting it, and on one occasion the precedent of Horatius was appealed to for the purpose of showing that, as the king had allowed, so the dictator should allow, the appeal.[257] But the dictatorship is a revival of the _military_ side of the monarchy with the military jurisdiction which the king exercises over Horatius. It is quite possible that before the close of the monarchy custom had established different spheres of criminal jurisdiction for the people and the king respectively;[258] in some the people might have had a right to be judges in the last resort, and it is the idea of calling away a case to another court that is suggested by the word _provocatio_, not the modern idea of pardon.[259] In other spheres the king could judge alone; the _provocatio_ here is an act of grace. If, however, we consider the extent of the military and religious jurisdiction of the king, the competence of the people must have been small;[260] and the _provocatio_ itself may be a growth of the later monarchical period, the result of custom, and of a custom based chiefly on the permit of the king.

Civil jurisdiction is said to have been based on the king’s judgment.[261] How far this royal jurisdiction was personal we cannot say, but under all circumstances the king was the chief source of the _jus privatum_, in so far as he and his pontiffs alone knew the formularies of action,[262] the most precise verbal accuracy in which was necessary for the successful conduct of a suit. It is probable that in many cases the king gave merely the formulary of action, that is, the ruling in law, and then sent the case before a private judge or arbitrator (_judex privatus, arbiter_), thus illustrating (although not, perhaps, on the scale recognised during the Republic) the fundamental division of judicial procedure into _jus_ and _judicium_. This division of jurisdiction is probably primitive and not, as has sometimes been thought, a modification introduced by the later monarchy.[263] Even in Republican times the _judex_ was chosen by consent of the parties.[264] He was an arbitrator between the litigants agreed to by a mutual compact,[265] and an outcome of the notion of self-help so prominent in early Greek and Roman law. But one who knows the forms of action has to stand by and see that the words of these forms are correctly repeated. This depositary of _jus_ is the king or one of his pontiffs. Hence eventually the public official comes to assist at the appointment of the judge. From this it is but a slight step to give the formula of action which settles the law of the case, and to leave it to the _judex_ to decide the question of fact.

§ 6. _The Servian Constitution_

At some period before the close of the monarchy the absurdity of the existing constitutional arrangements began to be felt. In matters of private law there was not a single important difference between a free Plebeian and a Patrician; and large numbers of that portion of the Plebs which had sprung from clientship were virtually in a condition of independence. Although their tenure of the soil might be precarious, their right of acting for themselves in the law courts questionable, it must have been practically impossible to avoid the appearance of full ownership where the lord had not asserted his right for generations, or to prohibit the personal enforcement of claims where the original patronage had been long forgotten or had lapsed through the extinction of the patrician family on which the original client had been dependent. It was, in fact, impossible to say where the class of free Plebeians ended and that of protected Plebeians began. It was better, for the purposes contemplated by the impending reform which bears the name of Servius Tullius, that they should be regarded as on an equality, and that both classes should make up a single order. The essence of this reform is, in fact, the recognition of _equality of rights in landed property_. Ownership of Roman land _ex jure quiritium_ was guaranteed to the whole plebeian order—probably even to those dependants and emancipated slaves whose clientship, and therefore whose precarious tenure of the soil, was patent;[266] and with respect to the rights of _commercium_ the order was put on a level with the Patriciate.

So far the object of the reform seems to be to confer privileges on certain classes of the Plebeians. Its real meaning was wholly different. The intention of the reformer—one which explains the readiness with which the change seems to have been accepted by the Patricians[267]—was to impose burdens on the whole plebeian community. A recognition of the rights of property was a necessary preliminary to the imposition of taxation and of the full quota of military service. The _patres_, who welcomed this distribution of burdens, did not foresee that from these obligations would flow a fresh series of rights which would impair their monopoly of political power.

The Plebeians were being recognised for the first time as, in a sense, members of the state. The first problem was the choice of a medium through which they should be incorporated in it; for simple membership of a state which was not based on membership of some lower unit was inconceivable to the Graeco-Roman world. Many of the Plebeians had no clans; they could not, therefore, be made members of the three primitive tribes,[268] and when the change was first mooted, it was, probably for the same reason, thought impossible to make them members of the _curiae_.[269] New tribes must be invented which should include the whole community. The chief burden of taxation, now imposed equally on all classes, was to lie on land. What more natural than that the tribes should be territorial divisions, so defined as to include all the territory held in ownership by the Roman people? It is established that the tribes, which are specially described as local,[270] contained only that land which was subject to quiritarian ownership,[271] and from this fact the deduction has been drawn that all land subject to quiritarian ownership was included in the tribes. As the Servian tribes were believed only to have comprised the city itself, as enclosed by the Servian walls,[272] this view leads to the startling conclusion that no land was held in private ownership outside the city, as its limits were fixed by Servius—that the land outside, so far as it was not _ager publicus_, was held by some larger corporation such as the _gens_.[273] But such a conclusion is most improbable; it was the evolution of private ownership which had created the rich Plebeian, who had often no clan and could not hold in common with others, and such a holder was the least likely man in the world to have land in or near the city, even as its limits were fixed by Servius.

Consequently if, as seems to have been the case, the tribes did include all landowners, they must have extended far beyond the bounds of the city. Our authorities knew them at a time when their names indeed survived, but when they had become strictly divisions of the city, by the complete separation of the country from the urban tribes. If we believe in the urban character of the four original _tribus_, we must accept the clearly expressed but generally discredited belief preserved by Dionysius that besides these four tribes, which comprehended only the city, Servius established twenty-six others which took in the country districts.[274]

The view that the four tribes[275] comprised the country districts is preferable, and is not incompatible with the fact that they certainly designated parts of the city, nor even with the possibility of their having been engrafted in some way on the older divisions of the _Ramnes_, _Tities_, and _Luceres_.[276] Local creations of an artificial character, independent of juxtaposition, are not unknown in early legislations; they are found in the almost contemporary work of Cleisthenes of Athens. But even this hypothesis is unnecessary; each tribe may have stretched continuously with fairly definite boundaries beyond the city walls. The country portions of these tribes were for a moment wholly lost by the disastrous wars which followed the expulsion of the kings, and when the _ager Romanus_ was again regained, a new organisation was adopted The territory outside the walls was parcelled out into country tribes,[277] and these grew in number as Rome’s conquests spread. The four Servian tribe-names were kept as designations only of regions within the city.

Although the tribes were divisions of the land, and individuals were registered in that tribe in which their land-allotment lay,[278] there is no good reason for accepting the current belief that the landless citizen was not enrolled in a tribe.[279] It has generally been assumed that the only object of the Servian tribes was to furnish a system of registration for taxation and the military levy. If this was the case, and we believe that these burdens were imposed only on landed property, it follows as a consequence that only holders of land were _tribules_. But there is no evidence that their scope was so limited. They appear to be divisions of the _populus Romanus_, and the disinherited or ruined Patrician who has lost his land is still a member of that _populus_. The tribe to which a landless man belonged would depend upon his domicile; it is a man’s local position in a tribe, not the land he holds in it, which is given as a criterion of his membership and of the political rights which it subsequently conferred.[280]

The system of registration, which was the central idea of the Servian reforms, was essentially military. It recognised only those persons who were qualified for service by wealth, regarded them as forming an army (_exercitus_), and divided this army into its two branches of infantry and cavalry. This military organisation recognised one primary and two secondary principles as the basis of classification; the first was wealth, the second age, the third took the form of a subdivision for strategic purposes, the military unit employed being the “hundred” (_centuria_).

For the moment we may overlook the cavalry and fix our attention on the bulk of the citizens who form the infantry. These are split up into five divisions, which were at a later period called _classes_. The basis of division was wealth, and the crucial question is “what kind of wealth?” It is almost certain that it could not have been wealth reckoned in money. Although Rome was a seaport and a trading state, it is doubtful whether even the old libral _as_, which was used as a medium of exchange by weight, was in current use at this time;[281] and therefore the detailed accounts given of the money valuations by which the classes were fixed must refer to a later period in the history of this organisation. The alternative that has been suggested is land.[282] There would be no difficulty in accepting this substitute, paralleled as it is by the similar organisation of Solon, were it not that the hypothesis ignores sources of wealth which the earliest Roman law seems to have classed with land, i.e. slaves and domesticated beasts. These _res mancipi_ are as much the object of quiritarian ownership as land, and they may exist without it. A man might own no land and yet be rich in cattle and sheep which he drove on the _ager publicus_, or in slaves engaged in productive handicrafts,[283] and the state was interested in all that was duly owned and was properly the subject of assessment (_res censui censendo_);[284] the Servian census must have been based on _res mancipi_, and to a certain degree it was a census based on currency, for cattle (_pecus_) were recognised as a medium of exchange (_pecunia_).

On the basis of such a census five classes were distinguished; the census of each, in terms of the later assessment, which was probably expressed in _asses sextantarii_, being respectively 100,000, 75,000, 50,000, 25,000, 11,000 asses.

Each of these divisions was subdivided into two with reference to age, the _juniores_ (from eighteen to forty-five) being the effective fighting force, the _seniores_ (forty-five to sixty) the home defence. The final division is into the military unit, the century (_centuria_), consisting nominally of a hundred men. This was the minimum strength of the lowest unit, but the census list did not represent the effective fighting force of the legion organised for battle, but the numbers qualified for service; consequently the centuries of a particular class were raised to the quota required to include all the members of that class. The numerical proportion of the centuries of the different classes to one another is very striking. The centuries of the first class (eighty in number) are almost equal to those of the four other classes put together (collectively ninety in number). If this table exhibits the real proportion of social classes to one another, it would show a wonderfully equal distribution of land in the state, one so equal as to cause most of the landholders to be placed in the same class, for the list would mainly represent holders of land (the other _res mancipi_ not being usually divorced from its possession). But the proportions of the classes may only show that the centuries of richer citizens were still regarded as forming the more permanent force, the other divisions, not much more numerous though drawn from a larger population, being merely supplementary. We know that members of the first class were more perfectly equipped,[285] and the fact of their being the main strength of the army would be proved if it were true that this class alone was originally _classis_ (“the line”) and that all the others were _infra classem_.[286]

As will be seen from the accompanying table of the census, the mass of citizens whose property fell below that of the lowest class was not wholly unprovided for. They were organised, according to Livy, into six, according to Dionysius into five, centuries. Some of these were composed of professional persons, whose services were indispensable to an army, and who were, perhaps, members of the trade guilds (_collegia_) which are said to have existed in the regal period.[287] Such were the carpenters (_fabri_) who formed two centuries, and the horn-blowers and trumpeters (_cornicines_ and _tibicines_) who formed one each.

THE SERVIAN CLASSIFICATION

THE CAVALRY

18 centuries, with no fixed property qualification.

THE INFANTRY

_1st Classis_—100,000 asses (Livy and Dionysius),[288] 120,000
asses (Pliny and Festus).[289]
Seniores, 40 cent. } 80
Juniores, 40 cent. }

_2nd Classis_—75,000 asses (Liv. and Dionys.).
Seniores, 10 cent. } 20
Juniores, 10 cent. }

_3rd Classis_—50,000 asses (Liv. and Dionys.).
Seniores, 10 cent. } 20
Juniores, 10 cent. }

_4th Classis_—25,000 asses.
Seniores, 10 cent. } 20
Juniores, 10 cent. }

_5th Classis_—11,000 asses (Liv.), 12,500 (Dionys. 12½ minae).
Seniores, 15 cent. } 30
Juniores, 15 cent. }
_Fabri_—2 cent. (voting with 1st class, Liv.; }
with 2nd class, Dionys.) }
_Accensi_, _cornicines_, _tibicines_, 3 cent. } 6 cent. (Liv.).
(Liv.), 2 cent. (Dionys.) (voting with 4th } 5 cent. (Dionys.).
class, Dionys.). }
_Capite censi_, 1 cent. }

Total, 193 centuries (Dionys.), 194 (Liv.).

THE CENSUS

As interpreted by Mommsen,[290] who holds As interpreted by Belot,[291]
that the figures are given in _asses who holds that the
sextantarii_ [i.e. _asses_ of two ounces figures are given in
weight—⅙ of the libral _as_ (the later _asses librales_ (later
_sestertius_)]. _sestertii_).

The older _as_ Later (_circa_
(¼ denarius) 269 B.C.)
equivalent to
⅒ denarius

_1st Classis_ 40,000 100,000 100,000
_2nd ” _ 30,000 75,000 75,000
_3rd ” _ 20,000 50,000 50,000
_4th ” _ 10,000 25,000 25,000
_5th ” _ 4,400 11,000 12,500

Another century was formed by the _accensi_ or _velati_. These were men with no heavy armour, who might be enrolled as occasion required (_adscripticii_), or who marched to battle as light-armed troops ready at any moment to take the armour and places of the fallen legionaries.[292] No property qualification was required for these three groups, the reason being that their place in the army did not demand it. But to these Livy and Dionysius add another unpropertied class, the century of _proletarii_, which included the whole mass of the people not registered in the _classes_.[293] If, however, we believe in the originally military character of the organisation, there seems no place for this class which is not already filled by the _accensi_ and _velati_. At a later period the _accensi_ became a more definite body, acting as assistants to the magistrates and forming a corporation with certain immunities,[294] and at this period the _proletarii_ may have been recognised as the class liable to taxation, which fell below the minimum census. But they probably do not belong to the original Servian organisation.

The citizens included in the census list were collectively described as _classici_, and were spoken of as _locupletes_ and _assidui_, the latter word probably meaning people “settled on land,” “landholders,” as most of those originally enrolled in the _classes_ were.[295] The others were the children-begetting citizens (_proletarii cives_). The use of the census for purposes of taxation gave other names to this class. In contrast to the _assidui_, who were registered on their property, they were called _capite censi_ as being registered on their _caput_ or mere headship of a family; and further, when the incidence of taxation extended below the minimum census, they were spoken of as _aerarii_, because their participation in the burdens of the state was shown only by the payment of taxes (_aes_). The word _aerarii_ seems always to have denoted those outside the census list.[296]

The cavalry was an adaptation of the old patrician corps of _equites_[297] to the new conditions. The six original centuries were preserved and consisted as before of Patricians;[298] they still bore the names of the ancient tribes, and were called respectively _Titienses_, _Ramnes_, _Luceres_, _priores_ and _posteriores_.[299] They continued to be known as the _sex centuriae_, or (after the centuries acquired voting power) the _sex suffragia_.[300]

To these were added twelve new centuries (_centuriae equitum_), composed, like the _classes_, of Patricians and Plebeians. But, unlike the _classes_, they were not enrolled on a property qualification. This is explained by the fact that they are not a list of men qualified for service but actually in service, a standing corps selected by the king and whose expenses were largely defrayed by the state. In later times, each knight was on his entrance into the corps given the means wherewith to furnish himself with a pair of horses[301] (_aes equestre_), and also a regular sum of money for their support (_aes hordearium_), the latter money being defrayed by unmarried women and orphans, who were possessed of property but could not by the nature of the case be rated in the census.[302]

Each of these centuries formed a troop of one hundred men under a _centurio_,[303] and these eighteen centuries of Roman knights with public horses (_equites Romani equo publico_) continued unaltered in numbers and (with the exception that the _sex suffragia_ ceased to be chosen from the Patricians) in character to the end of the Republic. Although no definite census was required for the class, it was probably chosen from the first from the richest and most distinguished citizens; for its permanent existence implies leisure. The class was not divided by age into _seniores_ and _juniores_, for an obvious military reason. They were all _juniores_, and probably young men, whose release from the centuries was granted as soon as age had impaired their efficiency for service.

This centuriate organisation seems to have little or no connexion with the four Servian tribes,[304] beyond the accidental one that the basis of qualification was mainly land, and that all land which was private property was registered in the tribes. Its primary meaning was the assembly and registration of those liable for military service. It acquired a secondary meaning when (at what period we do not know but perhaps from its first organisation) it was used as a scheme for the collection of taxes on the registered wealth of the citizens in the _classes_. The act of registration (_census_) was a solemn religious function conducted by the king. He numbered his fighting force, saw that each warrior was in his due rank, excluded from these ranks men who were stained with sin, and then concluded the examination with a ceremony of purification (_lustrum_). It is only with reference to the collection of taxes imposed at this levy that the tribe would be of importance. The century was a military unit, dissolved as soon as the army was disbanded; the tribe was permanent, hence the war-tax (_tributum_) was perhaps collected from the first by the presidents of the tribes.[305]

A transference of political rights from the patrician body to this new assembly was so far from being the motive of the change that it was probably never contemplated. But such a transference was from the nature of things inevitable. Apart from the general fact that a citizen army must gain the preponderance in political power, there were certain public acts which were inevitably performed from the first by the assembly of the centuries, or were very soon found to be more rapidly, easily, and appropriately performed by that assembly than by the _comitia_ of the _curiae_.

Firstly, it may have been the custom for the oath of allegiance to the king, first expressed in the _lex curiata_,[306] to have been renewed at every taking of the census. This expression of allegiance, asked for by the magistrate, was now a _lex centuriata_.[307]

Secondly, most of the popular utterances or _leges_ of early Rome must have referred to military matters, and convenience, if not a sense of consistency, must soon have dictated that they should be pronounced by the army. The choice of officers rested with the king; but if the appointment of the higher delegates required the ratification of the people,[308] this must soon have been given by the centuries. The regal jurisdiction which the people challenge by the _provocatio_ is essentially military jurisdiction;[309] and consequently the exercise of this jurisdiction, when the king allowed the appeal, must soon have been felt to belong to the army. It was to this assembly that the announcement of a proposal to declare war[310] would most appropriately be made; it was above all by this assembly, which represented the taxpayers, that the war-tax (_tributum_) would most appropriately be assessed.

We cannot trace the successive steps in the acquisition of power by the centuries or its growth from an army into a _comitia_. They must have been the chief political changes which filled the closing years of the monarchy and the early days of the Republic; for even the abolition of monarchy itself, revolutionary as it was, was less of an alteration in the structure of the constitution than this transference of the attributes of sovereignty from one assembly to another, from a single to a mixed order. The _comitia curiata_ was not suddenly stripped of its powers; but the organising genius of a single supreme magistrate had prepared the way for a change, which was a prototype of the gradual insensible revolutions through which Rome was to pass.

The change which closes the history of this period, although not so radical, was far more sudden and violent. The monarchy itself was overthrown. History has tried to invest this revolution with all the legal grounds and legal forms which it could summon to its assistance. Servius had had it in his mind to complete his democratic work by laying down the full _imperium_;[311] and Tarquin the Proud, the last of the great Etruscan line, had broken through the constitutional usages of the monarchy[312] and had ruled without challenging the allegiance of the people.[313] That there was some fearful abuse of the kingly power, typified in the associations that gathered round the words _rex_ and _regnum_ and in the oath which made any one who aspired to monarchy an outlaw,[314] we may without hesitation allow; for Rome, as shown by the power she continued to entrust to her magistrates, had not outgrown the idea of royalty. But there was no constitutional mode of deposing a king. The auspices had returned to the fathers in unhallowed fashion, and the war waged by Tarquin and Etruria is a war for the maintenance of the principle of divine right. But yet Rome held that the divinity of the magistracy still remained; the auspices again left the fathers’ hands and were conferred on two citizens chosen from the _patres_.[315]