Chapter I: The Earliest Constitution of Rome (2)

The second kind of public will was the military testament (_in procinctu_),[106] but our authorities leave us in doubt as to whether this testament could be made in any gathering of the soldiers prepared to meet the enemy and in any place, or whether it was a formal act possible only in the great gathering of the _exercitus_ in the Campus Martius—that gathering which was finally organised as a legislative assembly, existed by the side of the assembly of the Curies, and came to be known as the _comitia centuriata_.

In the first case it may have been an old patrician form of testament, an informal will permitted in an emergency, perhaps to enable a childless soldier to transmit his inheritance. We do not know whether it had absolute validity, or only a validity dependent on circumstances, such as the absence of direct heirs, or the satisfaction of religious conditions approved by subsequent pontifical scrutiny; on this hypothesis the comrades of the testator could hardly have acted other than as witnesses to the will.

On the second hypothesis it would have a closer analogy to the testament made in the _comitia calata_, and may have been introduced only when Plebeians were admitted to political rights in this assembly. It is true that this is not a necessary conclusion, for the _patres_ gathered armed for war in the Campus long before the enrolment of the Plebs for military duties or their admission to political rights; but we may at least say that, when this enrolment and admission were effected, this form of testament could be used by the Plebeians. If we accept the traditional date for the Servian constitution, it was common to the two orders before the close of the monarchy.

But there was a third type of will, one purely plebeian, which from the comparative simplicity of its form and the readiness with which it could be employed (since it did not depend either on chance or formal gatherings of the people) gradually came, in its subsequent developments, to replace all others, and became the prevailing Roman form of testament-making. This was the testament _per aes et libram_, one use of the _mancipatio_ or solemn transference of property “by the copper and the scales.” In the form in which it is known to us, it is a late development, for the sale of the property has entirely ceased to be a real, and has become a fictitious sale; the mancipation in fact has become a mere formality, and its employment is said to have been dependent on the condition that the testator “subita morte urguebatur”[107]—a condition which implies that the comitial testament could in ordinary cases be resorted to. But as the Plebs had originally no access to this form of will, the testament _per aes et libram_ must have been in use among them long before its recognition as a form valid for the whole community. It was then regarded as a mere formal application of the mancipation to a special emergency, and as supplementary to the comitial testament; until its superior utility came to be recognised, the sentiment in favour of a free disposition of property grew to be strong, and the Twelve Tables, which effected the triumph of plebeian over patrician forms of procedure, recognised it as the normal mode of testate disposition.

By this act the testator, in the presence of five witnesses and the _libripens_, transferred the whole of his patrimony (_familia_) into the custody and guardianship of a person called “the purchaser of the family” (_familiae emptor_). In order to make a legal disposition of his property the vendor makes a formal announcement of the purport of the sale, and the buyer, as he pays the single copper coin for the patrimony, repeats the same form of words, “Let my custody and guardianship of your patrimony be purchased by this coin, to the effect that you may make a legal testament in accordance with public law.”[108] The words, which may not represent the most ancient formula, show that the _familiae emptor_ is a mere trustee. Although the transference does not appear to have been conditioned by any express stipulation on the part of the vendor,[109] it was understood that it should only take effect on the death of the testator. On this the _familiae emptor_ becomes guardian of the patrimony. He is not an heir but an executor, who distributes the property in accordance with the instructions of the testator from whom he has purchased.

The second stage is reached by the added importance given to the form of instruction (_nuncupatio_) uttered by the vendor. The Twelve Tables gave absolute validity to such instructions,[110] and the mere expression of the will of the testator came to be considered the essential part of the testament. In this announcement a true heir (_heres_) could be mentioned, and the _familiae emptor_ sinks into the background. It is true that his presence is still necessary to the ceremony; he still professes to take the patrimony into his guardianship; but, like the man who holds the scales and the five witnesses, he is merely a formal assistant. The testament has ceased to be a contract; it is a one-sided expression of will and an arbitrary disposition of property. It may be either verbal or written; the last stage in the history of the civil testament is reached when the testator is allowed to exhibit a document to the witnesses of the mancipation with these words, “These waxen tablets contain my will and bequest; I ask you, Quirites, for your testimony.”[111]

Thus at a very early stage of Roman history, perhaps as early as the middle of the fifth century B.C., a man could exercise the most absolute power over the disposal of his goods. The only limitation was that the direct heirs (_sui heredes_) must be formally disinherited if they were to lose their rights. A mere passing over of a _filius familias_ without formal disinheritance (_exheredatio_) rendered the will invalid; and in this case the _sui_ succeeded to the vacant estate.

The social and political effects of such a dangerous liberty as the right of arbitrary testamentary disposition depend upon its use, and its use depends on the character of the people. The Roman character was, at all periods of history, devoted to the hereditary theory. It is one that was so strongly believed in that it asserted itself in spheres where it was never contemplated—during the later Republic in succession to office, in the early Empire in the succession to the Principate—and as applied to property it was an essential condition of the permanence of the Roman family. For the maintenance of a house a rigid system of intestate inheritance is bad; it may not produce great wealth, but it often produces great poverty. The only satisfactory system is a minute examination of each particular case by the state or by individuals. Such a control by the state was utterly alien to the _laisser faire_ principles of the Roman, and history shows that the Decemvirs were right when they entrusted this discretionary power wholly to the _pater_. His functions as trustee were but extended to a period beyond his lifetime, and freedom of bequest was used as a means of equitable adjustment of property to the circumstances of the members of the family. The son who had made a rich marriage need not receive so much; the one destined to carry on the family traditions of office might receive more than the others. To him the _heredium_ might be given, while the younger sons were drafted into colonies. We do not know the principles; but that the principles tended to the preservation of the family is proved by the long traditions of the noble Roman houses.

A legal view of the Roman family would be incomplete without consideration of the rights or infringement of rights dependent on it.

The full legal status of a Roman citizen was designated by the word _caput_. It denoted all the rights that he possessed, but primarily it is a conception of public law, for the possession of private was originally regarded as an annexe to the possession of public rights. Thus _caput_ is retained even though the exercise of private rights is hindered for a time, as it is in the case of a son under power; the _filius familias_ possesses a _caput_, although it is modified by his subjection to his father. This theory of the dependence of private on public rights, common to Greek and Roman law, probably accounts for the perpetual tutelage of women. The _materfamilias_ holds an honourable position in the household; she is its queen, as her husband is its king, but yet she is subjected by marriage to the legal position of her own daughter, and, on her husband’s death, is in the custody of her sons; for a primitive society cannot be brought to believe that a being who cannot fight, and may not fill offices of state or exercise a vote, is capable of looking after its own interests. Appearance before a court of law at Rome, whether for the purpose of defending one’s own or another’s rights, was regarded as a public act; and Roman sentiment so strongly disapproved a woman’s taking part in public life that, when one was found bold enough to plead her cause in the Forum, the Senate in alarm made an official inquiry of the gods what the portent signified.[112] It is possible that in the earliest stage of Roman law women were not regarded as having any rights to defend; later they are regarded as having rights, and therefore a _caput_, but as incapable of defending them. When, in the latest stage, the disabilities of sex disappear partly through enactment,[113] but chiefly through a series of legal fictions, the capacity of women to defend their own interests first emerges.[114]

The limitation by which a series of civil rights is destroyed is spoken of as a “lessening of _caput_” (_capitis deminutio_). It is in every case an infringement of rights already possessed by the individual. Now the loss of public rights could only follow on a loss of citizenship; but this is not the diminution but the annihilation of _caput_, and could not therefore in the earliest stage of Roman law (when there was no status recognised but that of citizenship) be called a _capitis deminutio_. The term must have been wholly confined to a loss of private rights, i.e. to the loss of the rights conveyed by the control of a _familia_.[115] Thus the _adrogatus_ suffers a lessening of _caput_ by passing into the power of another. But a change from a higher to a lower status (even when the higher did not imply active rights) may at an early period have been regarded as an infringement of _caput_. We know, for instance, that the _datio in mancipium_ of a son of a family was thought (at what period is uncertain) to involve it, because the child passes from a better to a worse station, although in his former condition he had no active rights of his own. It is stranger still that, certainly at an early period, the fact of a woman’s passing into her husband’s power (_conventio in manum_) was held to have this consequence. It is one that is scarcely intelligible in the case of a _filia familias_ who passes from one _potestas_ to another; but in the case of a woman only under the burden, lighter and ever tending to be more relaxed, of the _tutela_ of her relatives, it is a natural though not strictly legal conception.[116] Some other applications of the system are still more artificial, and are perhaps creations of late Roman jurists who came to consider that the essence of a loss of _caput_ was a change of status (_status commutatio_).[117] Thus adoption, which is the change from one _potestas_ to another, and even manumission, which is the freedom from power, were supposed to involve it. These applications contain some historical truth only in so far as both these changes involve a temporary mancipation.

The original _capitis deminutio_ is thus a purely private law conception and implies the distinction between persons _sui juris_ and _alieni juris_. To the first category belong those who are free from the power of another, to the latter those who are under the _potestas_, _manus_, and _mancipium_; amongst citizens, therefore, the son, the wife, and any one mancipated to another. The person _alieni juris_ is not altogether devoid of private rights, but they are singularly incomplete in their effects. Thus the son under power has the right of marriage (_conubium_), but the children of the marriage are not in his power but in his father’s; he has (if not in the earliest period, yet throughout the greater part of Roman history) the right of taking part in the legal business of trade (_commercium_), yet all that he acquires by this business belongs to his father. In his case, however, the condition is transitory, while in the case of the slave and the _mancipatus_ (apart from the possibility of emancipation) it is permanent.

Conversely, the fact of being _sui juris_ does not always imply freedom of action; this might be limited through consideration of age or sex. Minors and women may be free from _potestas_, but the former were subject to a temporary, the latter originally to a perpetual _tutela_.

§ 4. _The Citizens and the Political Subdivisions of the State_

The whole collection of Roman citizens forms the _populus Romanus quiritium_,[118] or _populus Romanus quirites_.[119] Of the terms thus placed in apposition, _populus Romanus_ is the more general descriptive name, and _quirites_ the official title by which the citizens are addressed in the assembly. Yet both words appear to have the same signification; _populus_ is the armed host,[120] and the _quirites_ are the “_bearers of the lance_.”[121] If the latter etymology is correct, the word _quirites_ came, by a course of development which finds many parallels in Roman history, to mean exactly the opposite of its original signification. At the end of the Republic it signifies the citizens in their purely civil capacity, wearing the _toga_, the garb of peace, and exercising political functions within the city; Caesar once quelled a mutiny of his legions by addressing them as _quirites_, showing by this address that they were disbanded and were no longer soldiers.[122]

A more real historical difficulty with respect to the original connotation of these words, is to determine whether they denoted the whole people, Plebeians as well as Patricians. Roman records do not use _populus_ as equivalent to the patrician community alone; but these records all refer to a time after the Plebeians had won political rights, at least the rights of serving in the legions and of voting. If _populus_ and _quirites_ denoted the aggregate of fighting, and therefore privileged, men, they must have originally referred exclusively to the patrician community. After the Servian constitution the words denote the whole people (_universus populus_). _Populus_ and _plebs_ are henceforth only distinguished as the whole to the part—the distinction being necessary, since the Plebs continued to form a corporation apart, and this corporation excluded the patrician families.[123] So, in a later official formula, _senatus populusque Romanus_ denotes two corporations, the latter composed of all the members of the state, but in this the individual members of the smaller corporation are included.

_Civis_, a word of uncertain origin, signifies less definitely than _quirites_ the possession of active political rights. Hence its application to women and to the partially-privileged members of the state—to those who were, at certain periods of Roman history, given rights in private law, while debarred from the exercise of the suffrage or the attainment of office. It is possible that the distinction between the full citizen (_civis optimo jure_) and the partial citizen (_civis non optimo jure_), although probably not a primitive,[124] may yet be an ancient conception of Roman law. Those Plebeians who had never been, or who had ceased to be, entirely dependent on a _patronus_ for the exercise of their legal rights, would practically have belonged to this latter class. Before the reform of Servius, which gave them political privileges, they might have been called _cives_; it is only after this reform that they could have been called _quirites_. It was, perhaps, in consequence of this change in the constitution that _cives_ replaced _quirites_ as the designation of the full citizens with reference to all their rights.

If we ask what the original rights of the citizen of Rome were, it is impossible to frame a simple category applicable to all the _cives_. Taking our stand at a period just before the Servian reforms, we find that private rights were possessed in varying degrees by all the members of the community. These rights are generally summed up as those of trade and of marriage (_commercii et conubii_). The first is the legal capacity to acquire full rights in every kind of property, to effect its acquisition, and to transfer it by the most binding forms, and to defend the acquired right in one’s own person by Roman process of law (_legis actio_). This _commercium_ was possessed equally by the Patricians and the free Plebeians. It was no infringement of the right of commerce that the right of occupying domain-land wrested from the enemy may for a long time have been possessed only by the dominant order;[125] for such land was not acquired, but only held on a precarious tenure from the state, and the privilege was, perhaps, one of fact rather than of law. The _jus conubii_ is the right to conclude a marriage which is regarded as fully valid by the state (_matrimonium legitimum_ or _jure civili_), and which, therefore, gives rise to the _patria potestas_. This right was possessed by the Patricians and by at least the free Plebeians, but by each class only within itself. There was no right of intermarriage between the orders, and the member of each effected his position as a father by a different ceremony.[126] The rights consequent on membership of a clan—those of inheritance and of religious communion—were, as we saw, probably shared with the Patricians by those Plebeians at least whose ancestors had never been in a condition of clientship.

Public rights—those of voting, of serving as a fully-equipped soldier in the legions, and probably of holding office as a delegate of the king—were possessed exclusively by the Patricians; and to these privileges we must add the right of holding the fullest communion with the gods (_jus auspiciorum_).

_Auspicium_, or the divination by birds, came eventually to be applied to any circumstance that might be interpreted as an expression of the will of the gods. The capacities of human beings with reference to these signs are partly a right of invoking, partly a power of interpreting them. Both the right and the power rest on the assumption that there is a medium of intercourse between the national gods and the citizens of the state,[127] and the peculiarities of the conception which the Romans formed of this divine patronage are shown by their views both of the nature of the revelation and of the qualifications requisite for the “medium.”

(i.) The revelation is not an answer to a question about future events, for true divination is not an attempt to pry into the hidden counsels of the gods; this profession of the Chaldaeans was never looked on with favour at Rome, and no science of the future was encouraged by the state. The Roman consultation of the gods is only employed as the test of the rightness of an already formed human resolution.[128] It tells men only whether they are to carry out a course of action already purposed; it may confirm them in it or warn them from it; and it is the duty of men to seek a sign either of encouragement or of warning. It is of the highest importance to remember this view of the guidance of the gods, for it is the chief sign of the way in which the Romans, in spite of their genuinely religious spirit (nay, as an outcome of it), subordinated the theocratic to the lay element. The chief effect of this subordination is the unfettered use of human reason; religion is employed as a test, rather than as a guide, of rightness of action. This is a thoroughly lay view of the function of religion in life, very unlike that of the Jewish prophet who questions God in detail, but only for interpretation of a law which is the product of His, not of the human will. The belief that the gods do not give instruction, but merely advice, gave an “inward freedom” to the Roman, which made him at times resent the divine interference, and we shall find many instances of his forcing an interpretation to suit his wishes. The omen that is not seen need not be attended to, and precautions are taken that it shall not be seen. In undertaking acts of state, the magistrates are bound to ask for signs; but all the efforts of human ingenuity are directed to secure that the signs shall be favourable.[129]

(ii.) It is plain that, on this theory of religious intervention, no priestly medium is required between the gods and their worshippers. Divination as the science of the future is an elaborate art, which cannot be possessed by the ordinary man. It requires the knowledge of ritual to compel the divine utterance; it assumes that the gods have special confidence in the select participators of an inner cultus, to whom they reveal what is hidden from the many; it requires the devotion of a lifetime, and often special rules of asceticism and purity, to interpret the hidden signs; it leads, in short, to the belief in oracular power, in the prophetic gift, in the claims of a priesthood specially set apart.[130] There was none of this at Rome. The right of invoking auspices is not a priestly gift; it is one that is possessed, in a higher degree by the magistrate, in a lower degree by all the full citizens of the primitive Roman community. It is true that there is a class of wise men, the augurs, whose chief function is the interpretation of signs, but their function is limited to interpretation; they have no more power than any private individual, and less power than the magistrate, of eliciting such a revelation. Yet, if the assistance of the augur was called in, and his interpretation given, this verdict was final. We are told that disobedience to it, at least by the magistrate in taking the public auspices, was in early times visited with a capital penalty;[131] a statement which probably means that the heads of the Roman religion, the pontiffs, reckoned such an impiety as one for which the gods would accept no expiation, and for which, therefore, the penalty of excommunication (_sacer esto_) was pronounced.

The right of taking the auspices is said to have been a gift peculiar to the Patricians; but the extent of this gift can be estimated only with reference to a fourfold division of the auspices, which, from its nature, must have been primitive and not a creation of the later _disciplina_ of the augurs.

The auspices were divided into _impetrativa_ (or _impetrita_) and _oblativa_.[132] The _auspicia impetrativa_ were those which were sought and asked for, and such signs might be taken from observation of the sky or from the flight or sounds of birds. The _oblativa_ were those which were forced on the attention, and which, since they were not sought, were generally regarded as an impediment to action, and, therefore, as unfavourable. They were gathered from a heterogeneous collection of signs of ill-omen (_dirae_). It is plain that the right to take or, as it is expressed, to have auspices (_habere auspicia_) can refer only to the first of these two categories; it was this right that was assumed to be peculiar to the Patricians; it was the members of the original clans alone, the primitive _patres_, who had the right of asking signs of the gods, and it was held that every important act of their lives, whether public or private, should be pervaded by this divine intercourse. It was believed that it was through auspices that the city had been raised, political development attained, and former victories won.[133] The existence of the patrician order is from this point of view a necessary condition of the existence of the state itself, for without it the right of eliciting the divine will would be wholly lost.[134] But no human power could prevent the Plebeians from following the religious scruples of their betters in giving heed to those warnings which were thrust upon their notice. The _auspicia oblativa_, whether the gods destined them for others besides the patrician body or not, must from the earliest times have been respected by the Plebeians, and have guided their political conduct when they became a corporation within the state.

The right of _taking_ auspices was neither a priestly nor even a magisterial function, but was possessed by every Patrician. But the man in a private capacity could exercise it only in his private concerns; the auspices destined to guide public action are vested in the person of the patrician magistrate. Hence the distinction between _auspicia publica_ and _privata_. There was a time when no important act of business or domestic life was undertaken without an appeal for divine guidance.[135] Marriage especially demanded the taking of the auspices; and even when the custom of such private divination had become wholly discarded, a survival of the custom is found in the presence of _auspices_, friends of the bridegroom who superintend the due performance of the rites.[136] The _confarreatio_ was older than the traditional institution of the augural college, and it is not probable that official intervention was brought to bear on marriage, still less on such concerns as were more strictly private. Hence it is difficult to see how the Plebeians could have been prevented from taking the _auspicia privata_, although their use of them was probably scoffed at by their patrician rulers. On the one hand, we find that the incapacity of the Plebeians to share in the auspices was one of the arguments used against the permission of _conubium_ between the orders;[137] on the other, that the _auspex_ continues to be an integral part of a ceremony which was founded on plebeian marriage law.

It was different with the auspices taken on behalf of the state (_auspicia publica_). It is the Patricians alone who have these auspices, and only a magistrate belonging to the order can exercise the right of looking for them (_spectio_).[138] This remains not only a purely magisterial, but a purely patrician privilege, and the so-called plebeian magistrates of later times, great as their power was, had not the gift. It is quite true that, after the Plebs had forced its way into the consulship, this right could not be denied to the plebeian holders of the supreme office. But the admission was based on the legal fiction that the holder of an office once reserved to the _patres_ was, for religious purposes, a patrician magistrate.[139]

The enjoyment of full political rights in ancient Rome was conditioned only by membership of a patrician _gens_; full citizenship here, as in most ancient states, being dependent on birth, and the membership of a purely private association satisfying all the demands that the state made as a condition of the attainment of its rights. But there were other forms of association of a definitely political character, amongst which the citizens were distributed, and as members of which they exercised active political rights or were subject to personal burdens. These were the three patrician tribes of Ramnes, Tities, and Luceres, and the thirty _curiae_. With reference to the question whether these were primary and natural associations of an ethnic character or artificial creations made by a supreme authority after the founding of Rome, we have already seen[140] that the _tribus_ are probably an ethnic survival artificially employed; in the case of the _curiae_, it must remain far less certain whether they were of spontaneous growth or purely artificial creations, or (what is perhaps more probable) in the main natural associations, artificially regulated in number and grouping to suit a political purpose.

The tribe, which was a division not merely of the citizen body but of the land, was the basis for taxation and the military levy.[141] We know nothing of the first burden, but it is probable that no detailed scheme of direct taxation existed in the early Roman state. The revenues from the king’s domains probably rendered him self-sufficing, while the patrician burgesses served in the army at their own cost, and were doubtless expected to defray the expenses of their retainers. It is probable that in cases of emergency a tax in kind was levied from the landholders of the tribes.

Of the military burdens tradition has preserved some plausible details. The army was known as the _legio_ or “gathering,”[142] and was composed of three “thousands” (_milites_),[143] one from each of the three tribes. These foot-soldiers were commanded by three or nine tribal officers, the _tribuni militum_.[144] The cavalry consisted of three hundred _celeres_, one from each of the three tribes, each commanded by three _tribuni celerum_. When the Patriciate was enlarged by the addition of the _gentes minores_,[145] these three hundreds (_centuriae_) were increased to six.[146]

Besides the heavy infantry and the cavalry, there may have been a corps of light-armed troops (_velites_ and _arquites_), and these would doubtless have been composed mainly of clients. We do not know whether the free Plebeians were forced to serve; but, if they did, it would only have been in this inferior capacity, which required no time for training and no cost of maintaining a panoply. It is evident that the whole burden of the regular levy, and of such war-taxation as then existed, fell upon the Patricians, and before the close of the monarchy an effort was made to remedy this unequal distribution of burdens—an effort which had as its result the abolition of the patrician tribes as the leading divisions of the state and a serious infringement of patrician rights.

The thirty _curiae_, originally local units, as is proved by their names,[147] were divided, ten into each of the three tribes. The members of the clans belonging to the same _curia_ were called _curiales_. But, although the _curiae_ had local centres, membership of these bodies did not depend on residence in a given locality. It was hereditary; and if the members of a _gens_ migrated from its _curia_, the _gentiles_ were still members of that state-division. The _curiae_ were religious as well as political associations, which had from the first, or finally developed, a close corporate life. Each had its peculiar _sacra_[148] and a place of worship, containing an altar and chapel, which itself bore the name _curia_;[149] and the religious affairs of each were conducted by a priest called _curio_, assisted by a _flamen curialis_.[150] The thirty _curiones_ formed a college, of which the _curio maximus_ was the president.[151]

It is difficult to say how far the religious organisation of the _curiae_ was a natural or artificial development. But artifice was certainly at work in determining their important political character. The primitive popular assembly at Rome is the _comitia curiata_, composed wholly of Patricians. Here each member of a patrician clan above the legal age—probably the age of eighteen, at which military service commenced—had the right of giving a single vote; a majority of the _curiales_ decided the vote of the particular _curia_, and the decision of the assembly was determined by the majority of the groups.

They also had, in a secondary degree, an importance of a military kind; for the supply of knights to the corps of _celeres_ is said to have been effected through the _curiae_.[152]

§ 5. _The Monarchical Constitution_

It is generally agreed that the monarchical constitution of early Rome rested on a limited sovereignty of the people, a power restricted by the extraordinary authority of their sole magistrate. This popular sovereignty was asserted in jurisdiction, in legislation, and in the ratification of magisterial power. The attribution of the right of appeal in criminal cases (_provocatio_)[153] to the people shows that with them rests either the sovereign attribute of pardon or some right of trying criminal cases in the last resort. Tradition makes the Roman people the sole source of law,[154] that is, of standing ordinances of a general kind which are to bind the community,[155] although the initiative in legislation can come only from the king; and apart from the rulings of the pontifical college, which did not require the sanction of the people, this theory of primitive legislation seems to be correct; for the very early laws passed by the _comitia_ on the downfall of the monarchy do not appear to mark any violent break in the theory of the constitution. We do not know whether the king employed the formula afterwards used by the Republican magistrates, which elicited the “will and command” of the burgesses (_velitis_, _jubeatis_, _quirites_); but law (_lex_) is from the first something “laid down” by a competent authority, and binding, therefore, in virtue of the power that ordains it.[156] After its ordinance it may or must create a contractual relation between individuals,[157] but there is no hint of its being the result of a contract or co-operation between independent authorities. The source of law is, therefore, simple; it is the people’s will; but, through the bar to utterance created by the magistracy, this will is very limited in its capacity for expression. The people are also affirmed to have been in a certain sense the source of honour, and typical illustrations of this power are presented by the traditional beliefs that the regal _insignia_ of Etruria, adopted by the kings of Rome, were only assumed by them with the consent of Senate and people,[158] and that the appointment of officers for special purposes, although these may have been in theory merely delegates of the king, had to be ratified by laws of the _curiae_. The quaestors, the earliest prototypes of the later magistrates at Rome, are said to have been so appointed.[159]

The people, therefore, possessed certain sovereign rights, but each right was limited by the vast authority of their personal representative, who wielded the whole of the executive, and so much of the legislative power as is implied in the sole right of initiative. We cannot even speak of the people as _vesting_ this power in their king; for their right of election was, as we shall see, probably as limited as their power of legislation.

This personal head possessed a variety of titles which marked the various aspects of his rule—titles which survived into the Republic, and, on the differentiation of the functions which he united, were applied to various magistrates. As supreme judge he was _judex_, as leader and commander in war _praetor_,[160] _dictator_, and _magister populi_.[161] The most general title which marked him out as universal head of the state, in religious as in civil matters, was that of _rex_, the “regulator” of all things human and divine—a title which survived in the _rex sacrorum_, the heir of the king in sacrifice and in ritual. The powers on which this position was based were summed up in the word _imperium_.[162]

The severance of the king from the state, over which he ruled, was also expressed in certain outward signs (_insignia_), which distinguished him from the rest of the burgesses. He was preceded by twelve “summoners” (_lictores_),[163] each carrying a bundle of rods (_fasces_), and the axe-head gleamed from these bundles even within the walls, for the king’s military jurisdiction could be exercised within the city. His robe was of “purple,” or rather of scarlet—the colour in which most nations have seen an emblem of sovereignty—but his dress probably varied with the ritual which he was performing, and the three kinds of striped garment (_trabea_) which survived in the Republic—that of purple for the priestly office, of purple and saffron for augury, of purple striped with white for the _rex_[164]—were probably all vestments of the king. Tradition also assigns him the eagle-headed sceptre, the golden crown, the throne (_solium_),[165] and the chariot within the walls, from which the curule chair (_sella curulis_) was believed to be derived.[166] The statement that the triumphal _insignia_ of the Roman magistrate were but the revival of the ordinary adornments of the king[167] is extremely probable; for the crown, the _toga picta_ (a development of the purple robe),[168] and the chariot reappear in the Roman triumph.

Other royal prerogatives were connected with the primitive conception of a patriarchal monarchy. The king, although he lacks the absolutism of the _paterfamilias_, occupies much the same position in the state as the father does in the family. In a sense he is owner of the whole community, and as such capable of commanding the _munera_ of the burgesses.[169] But a large portion of the public domain was more peculiarly set apart for his own private use.[170] This crown-land must have been worked mainly by the king’s own clients, who held it _precario_ from him;[171] for there seems no reason to doubt the belief that a large proportion of the half-free Plebeians were in the immediate _clientela_ of the king, connected with the community chiefly through him, its representative. These may have been captives who had submitted to the _fides_ of the state, and whom their conqueror had not attached as dependants to other leading families of the community.

The theory of a kingship is best expressed in the mode in which the monarch ascends the throne. The alternative principles that have usually been recognised are the hereditary, the elective, or that of divine right.

Of the hereditary principle there is no trace at Rome. It is contradicted by the facts of the traditional history, which believed that, when the hereditary principle was first realised in the last king, the monarchy came to an end; and it is expressly denied by later authors who reflected on the character of the early monarchy.[172] There is rather more to be said for the theory of divine right. Romulus is the son of a god and awaits the verdict of heaven before he assumes his rule. Numa, his successor, insists that the same verdict shall be appealed to.[173] But, if the taking of the auspices be the sign of a divine origin, then everything in Rome proceeds almost equally from the gods. Probably in earlier as in later Rome religion played a most important subsidiary part in public life, but we have no warrant for believing that it was ever the sole guiding power. As we shall see, in discussing the question of the inauguration of the king, this theory raises into a primary and material what was merely a secondary and formal element in the transmission of the monarchy, although this formal element was one of the utmost necessity and importance.

The Roman thinkers were thus thrown back on the theory of election. Tradition is unanimous in representing the monarchy as elective—depending, i.e., on free popular election, or on such election guided by the Senate.[174] On the death of a king there is no immediate successor with a title to rule; an interim-king (_interrex_) is appointed for a few days, and on his proposal a king is elected by the patrician burgesses at the _comitia curiata_, subject to the sanction of the patrician Senate (_auctoritas patrum_).[175]

In the expression of these views the Roman thinkers were attempting to reconstruct the monarchy from a knowledge of their own magistracy; for they rightly believed that this magistracy was a very slight modification of the original kingship. The elective principle of the Republic was not regarded as a novelty in the theory of the magistracy, and there were two reasons for this view. The first was that there was a real continuity, for the elective process was always subsidiary to another, that of nomination by the magistrate who guided the elections. The latter became an almost formal process in the Republic, but the question was not asked whether at one time it may not have been the material element. Secondly, there was really an elective element in the monarchy, which survived as a form into the Republic, a form which the hypothesis of monarchical election adopted by Roman antiquarians could not explain. It is strange that, in seeking for their theory of regal appointment, they should not have appealed to the clearest survival of the monarchy, the dictatorship, on which so much of the rest of their reconstruction of the monarchical power was based.

In the two definite survivals of the Roman monarchy election was not recognised; the dictator was nominated by the consul, not by his predecessor, for it was only an occasional office; and the _rex sacrorum_ was nominated by the _pontifex maximus_,[176] no longer by the preceding _rex_; for this office simply continued the priestly functions of the king, the religious headship being vested in the _pontifex_. This oldest principle of appointment survived in Republican Rome as an integral part of the elective process, to reappear again in the Principate, in cases where election had become a mere form, as the living principle.[177] It is, in fact, the one principle that has a continuous history; election is the Republican interlude.

If, therefore, we are led to consider the monarchy as not purely an elective office, and substitute for election the principle of nomination, we must consider that it was the right, and probably the duty, of the king of Rome to nominate his successor. If there had been no due nomination during his lifetime, and consequently no distinctly marked out successor to the monarchy, the duty of providing such a successor lapsed to the Senate, from which body the _interrex_ was appointed. The _interregnum_ is said by tradition to have dated from the first vacancy in the regal office, after the death of Romulus.[178] When such a vacancy had occurred, the auspices, under which the state had been founded, and which were the mark of divine acceptance of the kingly rule, “returned to the _patres_,”[179] and we are told that this was from the first interpreted to mean, not to the _comitia curiata_, but to the patrician Senate. The earliest _interregnum_ is represented as an exercise of collective rule by the Senate; but, on the analogy of the sole magistracy, it took the form of a creation of a succession of _interreges_. The first step was the division of the Senate into _decuriae_;[180] each decury had fifty days of government allotted to it; within this period each individual member of the _decuria_ exercised rule for five days, and, according to one account, the succession of the decuries was determined by lot (_sortitio_).[181] The rule is represented as collegiate, the whole decury possessing the _imperium_, while the individual who ruled for five days had the _fasces_ and the external emblems of the royal power.[182] In later times we shall see that, though the _interregnum_ was retained, the whole procedure was simplified by the abandonment of the collegiate principle. If it ever existed, we must suppose that, as soon as ever the resolution of the Senate was taken, the collective rule could be interrupted by any _interrex_, except the first, nominating the king.[183] The _interregnum_, although represented by our authorities as an invariable part of the procedure in the appointment of a king, was probably from the first a makeshift, only resorted to when the ordinary procedure had been interrupted through unforeseen causes, and there was no definitely designated successor.[184]

Yet, though the monarchy was not strictly elective, certain quasi-elective processes were connected by tradition with the appointment of the king, on the part both of Senate and people.

The authority of the Senate (_auctoritas patrum_) is mentioned in connexion with all the transmissions of the supreme office.[185] It is an authority, however, which did not spring from any theory of the Senate’s possessing elective powers, but was simply a result of the universal principle that no man in authority should act without taking advice of his _consilium_, and was merely an outcome of the constitutional necessity which the king was under of consulting the Senate on all great measures affecting the popular welfare. The greatest of these would be the appointment of a successor.

Secondly, we are told of a formal ratification of the king’s power by the people assembled in the _comitia curiata_, one which continued into the Republic under the title of the _lex curiata_, a formal sanction always required for the ratification of an _imperium_ already assumed.[186] It is said to have had this character even in the time of the monarchy, and this was thought to be shown by the fact that the king himself proposed the _lex curiata_ which was to give the sanction for the exercise of his own power.[187] Such procedure was, indeed, necessary, since no one but the king had the right of putting the question to the people; consequently we must accept the view that the _lex curiata_ was not absolutely necessary for the exercise of power, and might be legally, though not perhaps constitutionally, withheld, as it was by King Servius during the early part of his reign.[188]

The Roman jurists, who believed that the king was elected, credited the people with two distinct acts in the creation of a king—first, his election, and then the formal ratification of this election.[189] A parallel for this seemed to be furnished by Republican usage, where the _lex_ was taken by magistrates already elected as a necessary preliminary to the exercise of the _imperium_. But at this period the magistrates were not elected by the _comitia curiata_, and the _lex_ of this assembly is a mere survival, a reminiscence of the formal sovereignty which continued to be vested in the _curiae_. The _lex curiata_ is much more comprehensible in origin if the king was first nominated independently of the people and then challenged their allegiance. It was probably little more than an acclamation on the first summons of the _curiae_ by the king. The preceding king must have already made known to the people his choice of a successor, and the popular sentiment would have been already expressed; thus there was little chance of adverse shouts when the new king challenged the allegiance of his burgesses. If there was a chance of the challenge not being accepted, it might, as we saw, be withheld. But an exercise of the regal _imperium_ which was not sanctioned by these two acts of Senate and people—the expressed will of the one and the declared allegiance of the other—was regarded by later authorities as unconstitutional.[190]

There was also a religious aspect of the king’s appointment. His assumption of power was regarded as incomplete until it had been shown that the gods sanctioned the rule which he had assumed. This was done by the first taking of the auspices[191]—a ceremony observed by magistrates of the Republic before entering on the exercise of their office. This was the final test for the right to exercise secular power; but the king’s position as high-priest of the community was supposed to require another initiatory act.

This was the inauguration, which differed from the taking of the auspices. In the ordinary form of the _auspicia_ the individual entering on office has himself the right of _spectio_;[192] in the Republic it belonged to magistrates as such, and was never regarded as a merely priestly function. In the special inauguration, on the contrary, the _spectio_ is taken by some other than the person inaugurated. The priest-king Numa is naturally associated with this ceremony by tradition; by him an appointed augur is employed to watch for signs,[193] and this ceremony of inauguration by one of the priesthood, other than the person so inaugurated, is represented as being from this time onwards a standing part of the procedure requisite for entrance on the regal office. But this legend of Numa is rendered somewhat incredible by the fact that the augurs have no right of _spectio_, and that of all the priests of the Republic it is only the semi-magisterial _pontifex maximus_, the head of the state religion, who has the right of taking auspices. The fact that the _rex sacrorum_ in the Republic had a special inauguration[194] might lend support to the legend, were it not that this _rex_ had become wholly a priest and thus lost his right of intercourse with the gods through the _spectio_. The question of the inauguration of the king, unimportant in itself, runs up into two wider questions; the first is whether there was a separation in idea between the king’s magisterial and his priestly functions; the second, whether the king was himself _pontifex maximus_ and thus the supreme head of the Roman religion.

For an answer to the first question it is not safe to appeal to later examples, for the priesthood and the magistracy may have been first sundered during the Republic. But tradition[195] and survivals represent the king as the _first priest_ in the community. His successor, the _rex sacrorum_, ranks, as a priest, above the three great _flamines_ and the _pontifex maximus_ in the order of the priesthood (_ordo sacerdotum_);[196] the religious duties of this _rex_ point to the fact that the king’s functions were a regular _cultus_, not the occasional religious duties of a Roman magistrate,[197] while his wife, the _regina sacrorum_, had her own simultaneous sacrifices.[198]

But the position of first priest did not in the Republic imply the headship of the Roman religion; the chief pontiff, who is its head, comes, as we saw, low in the order of the priesthood. The importance of _cultus_ and of religious authority springing from higher knowledge are not the same. The pontiffs are only secondarily a priestly, primarily they are a religious order, whose position is based on the knowledge of religious law (_fas_). The separation between the true priesthood and the presidency of religion may, indeed, have been a Republican development, due to the secularisation of the magistracy; the priestly functions of the magistrate being continued in the _rex sacrorum_, and the religious presidency being also separated from the civil power, but vested in another official, the chief pontiff. But it is possible that the separation may have been primitive, and that _cultus_ and the knowledge of religious law did not go together. It is evident that great uncertainty prevailed as to the king’s relation to the pontifical college. While one account speaks of Numa selecting Numa Marcius as “_the_ pontiff,”[199] another describes the same king as instituting five pontiffs,[200] and we are further told that, before the _lex Ogulnia_ (300 B.C.), the college consisted of four members.[201] The discrepancy between the two last accounts has been reconciled by supposing that the king himself was reckoned as a member of the college, and that the expulsion of the king reduced the number from five to four.[202] It is possible that the king did not bear the title _pontifex maximus_ and was yet head of the college; it is even possible that, as one account which we have quoted seems to indicate,[203] there was a chief pontiff as his delegate. We can hardly refuse him a place at this board in face of the evidences which point to his universal headship of religion. The creation of the augurate and the priesthoods is his work. Romulus appoints the augurs;[204] Numa institutes the three great Flamines, the Salii, and the Pontifex, although most of the important ceremonies of religion are performed by himself personally.[205] Consequently we may conclude that the appointment of special individuals to these priesthoods must have been a part of the king’s office.[206] It has even been held (chiefly as an inference from the fact that the Vestals and Flamens were in the _potestas_ of the _pontifex maximus_ of the Republic) that the former were the king’s unmarried daughters who attended to the sacred fire of the state in the king’s house, the latter his sons whose duty it was to kindle the fire for the sacrificial worship of particular deities, Jupiter, Mars, and Quirinus. This pleasing picture may have represented the primitive state of the patriarchal kingship; but this had been long outgrown before the close of the monarchy. There we find a fully developed hierarchy and the existence of religious guilds, such as those of pontiffs and augurs, who cultivate the science, not the mere ritual of religion, and who have no possible connexion with the king’s household arrangements.

At the head of this imposing organisation stands the _rex_, and, in virtue of this position, he is the chief expounder of the rules of divine law (_fas_). It is a law which has hardly any limits, running parallel with civil justice (_jus_) but far beyond its bounds. Three methods of its operation may conveniently be distinguished. One is purely religious and ritualistic and is expressed in the control of priesthoods, religious colleges, and cults. The second asserts itself in a control over the life of the ordinary citizen in matters criminal and civil. The third is that which connects the Roman state with other independent communities and forms the international law of the period.