Chapter III

THE ROMAN CONSTITUTION AND THE REFORMS

T

OF SERVIUS TULLIUS

HE basis of the Roman constitution was the family, and the constitution of the state was but an expansion of that of the family. The head of the household was of necessity a man, and his authority alike as father or husband was supreme, and in the eye of the law as absolute over wife and child as over slave. Though a woman could acquire property, she was under the absolute dominion of her father, or, if married, under that of her husband, or, if he died, under the guardianship of her nearest male relations. This authority of the pater familias was alike irresponsible and unchangeable; nor could it be dissolved except by death. Although a grown-up son might establish a separate household of his own, all his property, however acquired, belonged legally to his father; and it was easier for a slave to obtain release from his master than for a son to free himself from the control of his father. A daughter, if married, passed out of her father's hand into that of her husband, to whose clan or gens she henceforth belonged. On the father's death the sons still preserved the unity of the family, nor did it become broken till the male stock died out, but, as the connecting links became gradually weaker in succeeding generations, there arose the distinction between members of a family, agnati, and members of a clan, gentiles. The former denoted those male members of a family who could show the successive steps of their descent from a common progenitor, the latter, those who could no longer prove their degree of relationship by pointing out the intermediate links of connection with a common ancestor. Slaves belonging to a household were regarded by the law, not as living beings, but as chattels, whose position was not affected by the death of the head of the house. Attached to the Roman household was an intermediate class of persons called clients ("listeners "), or dependents. These consisted partly of refugees from foreign states; partly of slaves living in a state of practical freedom; partly of persons who, though not free citizens

of any community, lived in a condition of protected freedom. Although these formed with the slaves the familia, or "body of servants," and were dependent on the will of the head of the house or patron, their position was practically one of considerable freedom; and in the course of several generations the clients of a household acquired more and more liberty. Everyone who was a member of a Roman family, and therefore of one of the gentes, or clanships, whose union formed the state, was a true citizen or burgess of Rome. Everyone born of parents united by the ceremony of the sacred salted cake was also a full citizen; and therefore the Roman burgesses called themselves "fathers' children," patricii, as in the eye of the law they alone had a father. Thus the state consisted of gentes, or clans, and the clans of families, and although the relations of the various members of the household were not altered by their incorporation with the state, yet a son outside the household was on a footing of equality with the father in respect of political rights and duties. So, too, the various clients, though not admitted to the rights and duties proper to true burgesses, were not wholly excluded from participation in state festivals and state worship; and this would be especially true of those who were not clients of special families, but of the community at large.

Since the family served as the model for the constitution of the state, it was necessary to choose someone who should stand in the same relation to the body-politic as the head of the family did to the household. He who was so chosen rex, or leader, possessed the same absolute power over the state as the house-father had over his household, and, like him, ruled for life: there was no other holder of power besides him. His "command" (imperium) was all-powerful in peace and war, and he was preceded by lictors, or "summoners," armed with axes and rods on all public occasions. He nominated priests and priestesses, and acted as the nation's intercessor with the gods. He held the keys of the public treasury, and alone had the right of publicly addressing the burgesses. He was supreme judge in all private and criminal trials, and had the power of life and death; he called out the people for military service, and commanded the army. Any magistrates, any religious colleges, any military officers, that he might appoint, derived all their power from him, and only existed during his pleasure. His power only ended with death, and he appointed his successor, thus imparting a sense of permanence to the kingship, despite the per

sonal change of the holders of the sovereign power. But, although the king's authority was so absolute, he never came to be regarded by the Romans as other than mortal, nor, as by divine right, higher and better than his fellow-citizens. This view of the kingship was at once the moral and practical limitation of its power. The king was the people's representative, and derived his power from them, and was accountable to them for its use and abuse. Moreover, the legal limitation to his power lay in the principle that he was entitled only to execute the law, not to alter it. Any deviation from the law had to receive the previous sanction of the assembly of the people and the council of elders. There is no parallel in modern life to the Roman family, or Roman state, or Roman sovereign.

The principle on which the division of the burgesses rested was that ten houses formed a clan, ten clans a wardship (curia), ten wardships the community. Each householder furnished a footsoldier and each clan a horseman and senator. If communities combined, each was a part or tribe of the whole community. Originally each household had its own portion of land, but when households combined into a gens, each clan had its lands, and this system naturally extended to curies and communities, whether single or combined. Thus clan-lands formed in primitive times the smallest unit in the division of land. Although this division into ten curies early disappeared in Rome, we find it in later Latin communities, which always had one hundred acting councilors, each of whom was "head of ten households." This constitutional scheme did not originate in Rome, but was a primitive institution, common to all Latins. What the precise object and value of this division was we cannot now determine, and it is clear that any attempt to rigidly fix the number of households and clans must, through ordinary human accidents, have failed. The really important unit in the division was the curia, the members of which were bound by religious ties, and had a priest of their own. Military levies and money valuations were made according to curial divisions, and the burgesses met and voted by curies. Although all full citizens or burgesses were on a footing of absolute equality as regarded one another, the distinction between those who were burgesses and those who were not was most sharply and rigidly defined. If a stranger were adopted into the burgess-body he could not retain his rights as citizen elsewhere. If he did, he merely possessed honorary citizenship at Rome and was entitled to the privileges

and protection of a guest, not to the exercise of full citizen rights. There were no class privileges at Rome. All wore the simple woolen toga in public, although certain officers by virtue of their office were distinguished by dress. As the Latin immigrants had no conquered race to deal with, the nobility of Greece and the caste of India were unknown to them. The most important duty of the burgesses was military service, as they alone had the right of bearing arms. Hence the name populus ("body of warriors,' connected with populari, " to lay waste"); hence, too, the name of quirites ("lancemen"), given them by the king. Other duties incumbent on the burgesses were such as the king laid upon them; among these was the all-important task of building walls, to which the name of moenia (" tasks") was given. As there was no state pay for services so rendered, there was no direct state expenditure of state taxation. The very victims for sacrifice were provided by the deposit, or cattle-fine, which the defeated party in a lawsuit was bound to pay. In cases of urgent need a direct contribution was levied, but this was regarded as a loan and repaid when times improved. Although the king managed the state exchequer, the state property, e. g., the land won in war, was not identified with the private property of the king. His exchequer was filled partly by the land-taxes, i. e., the scriptura, or pasture tribute, paid by those who fed cattle on the common pasture, and the vectigalia, or payment in 1 in place of rent, by those who were lessees of the state lands; partly by gains in war; partly by harbor dues levied on the exports and imports of Ostia; partly, perhaps, by the tax which the non-burgesses settled at Rome paid him for protection. In addition to these duties the burgesses had also rights. They were convoked by the king in formal assemblies (comitia curiata) twice a year, or in such other meetings as the king thought fit to hold. They had no right of speech on such occasions, unless the king saw fit to grant it; their duty was merely to listen and return simple answers without discussion to the king's questions. As long as the king was executor of existing laws, no intervention was necessary on the part of the citizens; but where abnormal events arose which necessitated any change of or deviation from existing laws, the coöperation and assent of the burgess body was essential. The king put the question and the people returned answer; and the lex, or law, which was the outcome of this process, was not in its origin a command of a king, but a contract proposed by the king and

accepted or refused by his hearers. The citizens alone could allow a man to make such a will as transferred his property on his death to another; they alone could sanction the adoption of a man into the burgess-body, or allow a burgess to surrender his rights as citizen; they alone could pardon a condemned criminal, whence arose the right of appeal, which was allowed only to those who pleaded guilty. Thus far the assembly of the community, restricted and hampered as it first appears, was yet from antiquity a constituent element of the Roman commonwealth, and was in law superior to, rather than coördinate with, the king.

The origin of the senate can with probability be ascribed to that remote period when each clan in Latium was under the rule of its own elder. As the clans became amalgamated, the position. of such an elder was necessarily subordinated to that of the head or king of the community; but that the senate was not a mere conclave of trusty councilors called into being by the king, but an institution as old as that of king and burgess-assembly, admits of little doubt. It resembled the assembly of princes and rulers, gathered in a circle round the king as described by Homer. The number was fixed at three hundred, corresponding to the three hundred clans of which the three primitive communities, forming the whole state, were composed. All senators sat for life; they were chosen by the king, and it is only natural to suppose that, if originally the senate consisted of the ancient body of clan elders, the king always chose, when a senator died, a man of the same clan to fill his place. The senators were, therefore, so many kings of the whole community, although the chief power, as in the household, was vested in one of their body, namely the king; their insignia, though inferior to those of the king, were of the same character; the purple border being substituted for the purple robe of the king, and the red shoes of the senator being lower and less striking than those which the king wore. Should the king die without appointing a successor, one of the senators, chosen by lot as interrex, exercised his authority for five days, and this interrex appointed the next, thus passing on the five days' sovereign power to one of his own body. Finally, one of these interreges, but never the one first chosen, nominated the king, and his choice was ratified by the whole assembly of the citizens. Thus the senate was the ultimate holder of the ruling power, and was a guarantee of the permanence of the monarchy. Further, it was the guardian of the constitution, ex