CHAPTER ITHE EARLIEST CONSTITUTION OF ROME
In the developed political life of Italy there is a survival of a form of association known as thepagus[1]—an ethnic or, at least, a tribal unit, which is itself composed of a number of hamlets (vici, οἶκοι). This district with its group of villages perhaps represents the most primitive organisation of the Italian peoples engaged in agriculture and pastoral pursuits.[2]Thepagusseems to resemble the tribe (tribus) of the fully formed city-state,[3]while thevicusmay often have represented, or professed to represent, a simple clan (gens). In the centre of the district lay a stronghold (arx,castellum), in which the people took shelter in time of danger.
There are, indeed, traditions of isolated units still smaller than thepagus. The clan is sometimes pictured as wandering alone with its crowd of dependants.[4]But migration itself would have tended to destroy the self-existence of the family; the horde is wider than the clan, and the germ of the latercivitasmust have appeared first, perhaps, in thepagus, later in thepopuluswhich united manypagi. The union may have beenslight at first, and may often have been based merely on the possession of some common shrine. Much of the civil and criminal law was administered within the family in the form of a domestic jurisdiction which survived in historical Rome; but a common market would involve disputes, and these would have to be settled by an appeal to an arbitrator (arbiter) even before the idea of a magistracy was evolved. Lastly come military necessities whether of defence or aggression. It is these that create a power which more than any other makes the state. The mild kingship of the high-priest of the common cult gives way to the organised rule of animperium, and the king,praetorordictator, is the result, the coherence of infant organisation being dependent on the strength of the executive power.
In the earliest city of Rome, to which we are carried back by tradition or archaeological research, this development has already been attained. The square city (Roma quadrata) was the enclosure of the Palatine, the “grazing-land” of the early Roman shepherd;[5]the bounds of the oldestpomeriumwere known in later times to have been the limits of this site,[6]and traces of the tufa ring-wall may yet be seen. From this centre the city spread in irregular concentric circles.[7]Traces of ritual have preserved a memory of a city of the seven hills (Septimontium)—not those of the Servian Rome, but five smaller elevations, three (Palatium, Cermalus, Velia) on the older city of the Palatine, and two (Oppius, Cispius) on the newly-included Esquiline; while two valleys on the latter (Fagutal and Subura) also bear the namemontes,[8]and are, with the sites that really deserve the name, inhabited by themontani, who are distinguished from thepagani, the inhabitants of the lower-lying land beneath. It is not impossible that these seven “hills” were once the sites of independent or loosely connected villages (vici, or perhaps evenpagi) which were gradually amalgamated under a central power, and, as the walls of the state could never have been coterminous with its territory, each successive enclosure must show theincorporation, voluntary or enforced, of a far greater number of smaller political units than those which the fortifications directly absorbed. Modern inquirers, following up a further hint supplied by the survival of a ritual, have held that there was another advance before the epoch of the Servian Rome was reached, and that what is known as “the Rome of the four regions” survives in the sites associated with the chapels of the Argei,[9]and is preserved in the administrative subdivisions of the city to the close of the Republic.[10]To form these regions the Caelian, the Quirinal, and the Viminal hills were added, while the Capitol with its two peaks now became, not indeed a part of the town, but, as the “head” of the state, its chief stronghold and the site of its greatest temples. The final step in the city’s growth was the enclosure associated with the name of Servius Tullius, a fortification extending beyond the limits of the truepomerium, which added to the city the whole of the Esquiline to the north-east, the Aventine to the south-west, stretched to the west to the bank of the Tiber where the Pons Sublicius crosses the river, and formed the enceinte of Republican Rome.
It is possible that an amalgamation of slightly different ethnic elements may be associated with this extension of the city. That a difference of race lay at the basis of the division of the primitive people into their three original tribes was believed in the ancient, and has often been held in the modern world. The Tities (or Titienses) were supposed to be Sabine,[11]the Ramnes (or Ramnenses) Roman; the Luceres were held by some to be also Latin, by others to be Etruscan. There is, however, a rival tradition of the artificial creation of these tribes by the first Roman king,[12]and, when we remember the arbitrary application in the Greek world of tribe-names that had once been significant,[13]we may hold it possible that the great συνοικισμόςtypified by the name of Romulus was not accompanied by any large alien intermixture with the primitive Latin population. The existence of Sabine gods like Sancus, or Sabine ritual as typified in Numa Pompilius, is no more evidence of Sabine intermixture than the early reception of Hellenic deities is of Greek;[14]and though it is possible that a Sabine tribe once settled on the Quirinal, and it is almost certain that at the close of the monarchical period an Etruscan dynasty ruled in Rome, yet the language, religion, and political structure of the early state were of a genuinely Latin type. There was, indeed, contact with peoples more developed in material civilisation or more gifted in their spiritual life, and to this contact the debt of Rome was great. Rome adopts the Chalcidian alphabet; she receives early Greek divinities such as Hercules, Castor, and Pollux; she models her statue of Diana on the Aventine on that of Artemis at Massilia; she imitates the Greek tactical organisation in her early phalanx. But it is very doubtful whether the obligation extended to the reception of the political ideas of Hellas. Parallels between Roman and Hellenic organisation may be observed in certain institutions such as theequitesand thecensus; but these are military rather than purely political, and in all the fundamental conceptions of public law—the rights of the citizens individually and collectively, the power of the magistrate and the divine character even of secular rule—Rome differed widely from the developed Greek communities with which she was brought into contact, and seems in her political evolution to have worked out her own salvation. The more developed civilisation of Etruria doubtless filled up certain gaps in her political and religious organisation both by contact and by rule. The strength of the religious guilds (collegia) of Rome may be due in part to an imitation of the Etruscan hierarchy; the refinements of the science of augury may also be Tuscan; and tradition, as we shall see, derives from the same source theinsigniaof the Roman king.
The free population of Rome as a developed city-state was composed of the two elements of Patricians and Plebeians. The ultimate source of this distinction, which is undoubtedlyanterior to the foundation of the city, can only be a matter of conjecture; but the origin of the Patriciate may probably be explained as the result partly of earlier settlement, partly of superior military prowess. The warriors within the pale receive the new settlers, but only on certain conditions; these conditions are perpetuated and become a permanent badge of inferiority. The happiest guess of the many made by Roman antiquarians as to the origin of the Patricians was that they were originally the “free-born” men (ingenui), the men who could point to fathers (patres) and in their turn become full heads of families[15]—the men in short who, at a time when the family with its juristic head, and not the mere individual, was the true unit of life, were the only full citizens of Rome. Such men alone could be partners in the true ownership of property, or sue and be sued in their own right,[16]and such an exclusive right to a full personality in private law they claimed in virtue of their public services or privileges—the duty of taking the field on horseback or in heavy armour, the right of uplifting their voices in the assembly when they acclaimed a king or ratified a law.
The whole free community, other than thepatresor Patricians, is regarded as the “complement” of the latter, “the multitude” (plebs,plebeii) which, with the fully privileged class, makes up the state.[17]It is possible that, in a very primitive stage of Roman history, these Plebeians may all have been in the half-servile condition of clientship; but, even when the earliest records of Rome are revealed to us, this has ceased to be the case. Not only has the son of the original client evolved a freedom of his own, but a man maybecomea plebeian member of Rome without subjecting himself to the degradation ofclientela. No less than five ways are described or can be imagined in which the non-citizen could become a citizen, and at least one of these reveals the possibility of the perfectly free Plebeian. In the old life of thepagusand thegens, the weaker sought protection of thestronger by a willing vassalage, which ripened, when the state was formed, into the Plebeiate which had its origin in clientship. A similar position was ultimately gained by the descendant of the manumitted slave. The stranger (hostis) from a city which had no treaty relations with Rome, or no relations which guaranteed a mutual interchange of citizenship, must, if he wandered to this new home, also make application to a patron and become his client. It is less certain what was the fate of the inhabitants of a conquered city who were violently deported to Rome. The annalists, indeed, represent such men as being received into the citizen body, and as becoming members of the tribe and thecuria;[18]but it is probable that in the prehistoric period they became clients, immediately of the king to whom they had made their subjection, ultimately perhaps of patrician houses to which he chose to attach them as dependants.[19]In all these cases clientship may have been the original lot of the Plebeian; but this could hardly have been the fate of the immigrant who moved to Rome from a city which already possessed thejus commerciiwith that state, and by the exercise of the right of voluntary exile from his native land (jus exulandi) claimed the Romancivitas. The existence of such relations between Rome and cities of the Latin league is attested for a very early period, and they may even have been extended to cities outside the league.[20]As thejus commerciiimplies the right of suing and being sued in one’s own person before Roman courts, there seems no reason why such an immigrant should make application to a Roman patron;[21]but, if he did not, he was in the chief aspects of private law a perfectly free man, andillustrated a status to which the quondam-client must from an early period have tended to approximate. Where the right of intermarriage (jus conubii), as well as the right of trade, was guaranteed in a treaty between Rome and some other town, it is questionable whether this gift ever implied the possibility of matrimonial union with members of the Patriciate. It is at least certain that, at the time of the Twelve Tables (451B.C.), and therefore probably from a very early period, a disability common to all the Plebeians was that they might not intermarry with members of patrician clans. Yet, although there was this great gulf parting the two orders, it was possible for either class to be transferred to the status of the other. We shall see that tradition represents a vote of the Patricians in their assembly as a means sufficient to recruit their order by the addition of a new family; while, after the Plebs had evolved an assembly of its own, atransitio ad plebemmight be effected by an act of that body.[22]Adoption from a patrician into a plebeian family produced the same result.
That the clientship of which we have spoken was not peculiar to Rome, but was an old established Italian institution, is a truth reflected in the legend of thegens Claudiawhich moved from Regillum to Rome with a vast multitude of dependants.[23]It is separated by but a thin line from slavery. While the latter was based on conquest in war, the former was probably the result of voluntarily-sought protection in the turmoil of a migratory life, or perhaps at times the consequence of the suzerainty of a powerful village being extended over its weaker neighbours. In the developed state the principal object of this relation is legal representation by thepatronus, for the client possesses no legal personality of his own. For the condition of the client we can but appeal to that of the slave and the sonof the family. Such property as he possessed may have been merely apeculium, the small accumulation of cattle and means of husbandry which his master allowed him to form; had the client wronged a citizen, we may assume that his body might be surrendered in reparation of the damage (noxae deditio); the origin of Roman occupation of land on sufferance (precario) may perhaps be traced to the permission by the patron to till a little plot of land which might be resumed at will;[24]in default of direct heirs (sui heredes) such personal belongings as the client possessed may have fallen to the members of the protecting clan (gentiles), for it was to the clan rather than to the family that he was attached.
The description which we possess of the mutual obligations of patrons and clients,[25]although it contains many primitive elements, obviously refers to a time when the client was allowed to possess property of his own and was often a man of considerable wealth, but when, in spite of this power, he does not seem to have appeared in person in the public courts. It was the duty of the Patricians to interpret the law to their clients, to accept their defence in suits, and to represent them when they were plaintiffs.[26]The client, on the other hand, was bound to help to dower the daughter of the patron if the latter was poor; to pay the ransom if he or his son were captured by enemies; and, if his lord was worsted in a private action or incurred a public fine, to defray the expense from his own property. If any of these duties were violated by the client, he was held guilty of treason (perduellio), and as the secular arm suspended him from the unlucky tree, so the religious power devoted to the infernal gods the patron who had woven a net of fraud for his dependant.[27]Even after the effective infliction of religious sanctions had disappeared, the duty to the client ranked only second to that which was owed by a guardian to his ward.[28]The earliestclientship was strictly hereditary; but the bond must have become weaker with successive generations, after the evolution of plebeian rights, and at a time whenclientesthemselves possessed votes in thecomitia curiata.[29]Nay, the Plebeian at this period may himself be a patron, and his attainment of full citizenship in private law must have been held to qualify him for this duty of protection. Yet the client body still continues to be recruited by new members; for the antique form ofapplicatiostill exists, and the manumitted slave owes duties to his patron. We know too that in the fourth and third centuries the patronal rights over the freedman extended to the second generation.[30]
A faint trace of hereditary clientship, based on a purely moral sanction, and accompanied perhaps by the performance of some of the duties of the old relationship, still exists in the second century. The family of Marius, we are told, had been clients of the plebeian Herennii, and some of the rights of the relationship were held to extend to him. But we are also told that at this period a principle was recognised that this bond was for ever broken by the client’s attainment of curule office,[31]that is, by the ennoblement of him and his family.
The clan (gens) was an aggregate of individuals supposed to be sprung from a common source, a social union, with common rights in private law, which had as its theoretical basis the notion of descent from a single ancestor. According to the juristic theory of the clan, all its individual members would, if their descent could be traced through every degree, have sprung from two individuals who were within the power of this ultimateancestor, a sign of this originalpotestasbeing the common gentile name.[32]
The members of a clan are to one another eitheragnatiorgentiles. In many cases the difference of nomenclature was based merely on the degree of certainty in the relationship. They wereagnatiwhen the common descent could be traced through all its stages; they weregentileswhen the common descent was only an imagined fact, based on the possession of a common name. As a ruleagnatiare alsogentiles; but there might be groups of agnates who could never begentiles—groups, that is, of proved relationship through the male line, who could not, for reasons which we shall soon specify, form agens.
If we believe that the Roman Patriciate represented those who alone possessed the legal status of heads of families (patres)[33]—since, thefamiliabeing the unit of the clan, the rights of a clan-member (gentilis) imply the position of apaterfamilias—it follows that the Romangenteswere, as they are represented by tradition, originally exclusively patrician, and that the termsgentilis,gentilitasimplied a perfect equality of status among the only true members of the state.
The words became restricted to a certain section of the community in consequence of the evolution of plebeian rights, i.e. in consequence of the Plebeians becoming in strict lawpatres familias. The logical consequence of this should have been, where groups of such families bore a common name and were believed to have a common descent, that these groups should formgentes. But history is illogical, and this conclusion was not reached.
No such group could possibly form agensof its own, if it could be regarded as having been originally in dependence on a patrician clan. Although in course of time legally independent and freed from all trammels of clientship, it was yet disqualified from clan-brotherhood by this original connexion; it remained an offshoot (stirps), a mere dependent branch, and could never be a self-existentgens. This disqualification is exhibited in the definition ofgentilitasgiven by the jurist Scaevola (consul 133B.C.), which gives as two of its conditions free birth in the second degree, and the absence of servile blood in one’s ultimate ancestry.[34]This definition excludes from membership of agensall those Plebeians who had sprung originally from emancipated slaves. No one who could be proved to have the taint of servile blood could ever be agentilis. But there is every reason to believe thatservituswas interpreted in a further sense, that clientship was regarded as a quasi-servile position, and debarred a group of families, whose ancestor could be proved to be a client, for ever from being a clan.
As a rule it would have been difficult, if not impossible, to furnish this proof; but there was one legal sign of it—the bearing by a plebeianstirpsof the same name as a patrician clan. The presumption of the law, in the case of the coexistence of a plebeian group of families with a patrician group of the same name, was apparently that the former had once been clients of the latter, and could never, therefore, form agensof their own.[35]
But, if there were plebeian families that had no origin in clientship, there was nothing to prevent these from beinggentes. It is true that Patricians sometimes made the claim that all the plebeian families had originated from clientship.[36]But this is, as we saw,[37]probably not true of the origin of many of the plebeian families, and there is abundant evidence that the theory was not recognised by law. We know, for instance, that gentile inheritances were shared by the plebeian Minucii, and gentile sepulchres by the plebeian Popilii.[38]
The foregoing description shows that thegensrests on a natural basis, that it professedly represents the widest limits of blood-relationship; hence it would seem to follow that it could not be artificially created or its members redistributed; that the numbers of the clans could not be regulated numerically,except conceivably by the addition to the existing number of a precise number of added clans—a most improbable procedure; and that, as being a natural and not an artificial creation, it was a union which was not likely to be of primary importance politically, and the rights of whose members were in all probability those of private rather than of public law. These expectations are verified, but the attempts to point out certain purely political characteristics of these associations deserve examination.[39]
(i.) It has been held that the clans were the unit of voting in the original popular assembly at Rome, thecomitia curiata.[40]But the passage on which this conclusion is based only implies that, originally, membership of thiscomitiadepended on possession of agens; eventually, at a time when thecuriaincluded Plebeians, on possession of afamilia, and therefore presumably of astirpsorgenus.
(ii.) A distinction is presented by ancient authorities between thegentes majoresandminores—a distinction within the patriciangentesthat survived into the Republic. Of thegentes minoreswe know but one name, that of the patrician Papirii;[41]a list of some of thegentes majoreshas been reconstructed with some plausibility from those clans which furnishedprincipes senatus; they are the Aemilii, Claudii, Cornelii, Fabii, Manlii, and Valerii.[42]Tradition is inclined to represent this distinction as having originated politically,[43]but it is a tradition working on the impossible hypothesis that the Patriciate derived its origin from membership of the Senate. This political distinction doubtless existed within the Senate; but it was probably derived merely from the respective antiquity, and therefore dignity, of thegentesfrom which its members were drawn. And this association with the Senate leads us naturally to the third question connected with the political character of thegentes, i.e. their relation to the primitive council of the state. The theory of an ultimate connexion between the two originates with the correspondence of the number of thegentesand of the Senate. Both are given by tradition as 300. The Roman community is said to have originated with the amalgamation of three domains (tribus) into one.[44]The rise of the Senate from 100, its original number as constituted by Romulus, to 300 as its final number, is accounted for by the gradual amalgamation of these three tribes with their 100genteseach.[45]A parallel to the original centumviral constitution of the Senate is found in thecentumviriof the Italian towns, and is supposed to be derived from the same invariable division of atribusinto 100gentes.[46]
The chief objections to this view are the symmetrical number into which it divides thegentes, and the fact that the Senate is, according to the best tradition, a body of nominees selected by the chief magistrate. But yet there is an element of truth in the theory. The Senate did rise from 100 to 300 in consequence of the incorporation of fresh elements into the community, and therefore in consequence of an increase of thegentes. The kings and early consuls would doubtless, in the exercise of their powers of selection, wish to see each of the patrician clans represented in their council. Hence the addition of new clans would add new members to that body, and hence the inferior place occupied in the Senate by thegentes minores, the younger branch of the Patriciate.
Although the clan itself was inexpansive, the number of the clans, even in the old patrician community, was not. It was possible for newgentesto be added to the community, and even for oldgentesto quit it. Tradition speaks of the reception of six clans that had once belonged to the parent state of Alba—the Cloelii, Curiatii, Geganii, Julii, Quinctilii (or Quinctii), and Servilii;[47]and Sabine races as well, such as the Valerii,[48]are also said to have been admitted. The reception of newgenteswaseffected by the Patricians and, as we should expect, by the assembly which represents the whole patrician body, thecomitia curiata, under the presidency of the king. They were coopted by their peers,[49]and it is improbable that the patrician order could have been recruited by the act of the king alone.[50]He might conceivably have chosen Plebeians as members of his advising body, the Senate, as the first consuls are said to have done,[51]although such a selection is extremely improbable; but even this act would not have raised such Plebeians to the Patriciate. The admission of newgentesimplies that foreigners, or even a portion of the plebeian body, might be coopted into the Patriciate; in the former case it might be the reception, in the latter the creation, of agens. This possibility of recruiting the patrician order—whether by the creation or reception ofgentes—ceased during the Republic, because the assembly of the Curies came eventually to admit Plebeians, and there was no political assembly composed exclusively of members who fulfilled all the conditions of beinggentiles. The only instance of the expulsion of agenspreserved by legend is that of the Tarquinii; and the decree that this whole clan had forfeited its right to be a member of the Roman state is said to have been passed by the Populus.[52]
The account ofgentesbeing received into the Roman community is accompanied by a tradition of their keeping together in their new settlement. Thus the Claudii, on the reception of thecivitas, are said to have received a special tract of territory across the Anio for themselves and their clients.[53]Such a tradition at once suggests a close connexion between thegensand the soil, which there is no reason to doubt. But the further questions have been raised, whether thegensas a whole was the owner of the land on which it settled, and whether thiswas the form of common possession recognised in early Rome. It must be admitted that tradition knows nothing of such a tenure. Dionysius represents the territory given to the Claudii as destined to be divided up amongst the variousfamiliaeof thegens;[54]while in other accounts of land-assignments we hear of such being made to thecuria(φράτρα)[55]or to individuals (viritim),[56]but never to the clan. Yet a plausible theory of common possession has been based on the survivals both of legal terms and of clan rights.[57]Amongst the terms describing early territorial possession we have, apart fromager publicus, theherediumand theager privatus. The private possession of theherediumis attributed to Romulus,[58]and is thus regarded as a modification of some form of common tenure; and theherediumconsisted of only twojugera,[59]an amount obviously insufficient for the maintenance of a family. Hence there must have beenager privatusas well, owned by some larger unit, and this unit would naturally have been thegens. It has also been thought that the terms descriptive of individual ownership—manus,mancipium—referred originally to movables,[60]as though immovables belonged to a common stock. Lastly, we find connected with the clan the survival of a corporate right to property and collective duties connected with it. According to the rules of regular intestate succession, in default of thesuus heres, property lapses to theproximus agnatusand then to thegentiles;[61]and it was in connexion with this right, which lasted down to the end of the Republic,[62]that the definition of agentiliswas of such legal importance.[63]This inheritance is by thegentilesas a whole, for there is noproximus gentilis, and in historic times it must have been an inheritance by individuals, the property being divided amongst those who could prove their claim; but it may be the relic of an earlier inheritance by thegensas a corporation.
But thegentileshave rights in acorporatecapacity as well.By the Twelve Tables they have the guardianship of the insane[64]and a reversionary right of guardianship over women and children.[65]Guardianship (tutela) must have given them all the rights of a person in Roman law, to exercise which they must have had a personal representative. But this devolution itself shows thegensacting as a corporation.
Of corporate action in their own interests, or with a view to the interests of the state, there is little evidence, although there are traces of common activity for the purpose of keeping up the dignity of the family. The patrician Claudii repudiate by common agreement thepraenomen“Lucius,” because two of its bearers had been respectively convicted of highway robbery and murder,[66]and the patrician Manlii renounce thepraenomen“Marcus” in consequence of a crime committed by a clansman of that name;[67]but such an agreement could hardly in historical times have had other support than the will of individual members to observe it. Perhaps the closest of the later ties of thegenswere its common worship and sacrifices. They never, as in Greece, rose to the rank of great public worships, but excessive care was taken by the state to maintain them; chiefly from the view that, if the worship of a race died out, the community would lose the favour of the divinity to which it had belonged. Hence the close connexion of gentilesacrawith property and inheritance.[68]Property, in the last resort, passed to thegentiles; and thesacra, that they might be maintained, were a necessary burden associated with it. For thesacrato pass out of the family was of little importance; had they passed out of thegens, there was no security for their continuance. In cases of transition from a family of one clan to a family of another, it was the duty of thepontificesto inquire how the continuity of the sacred rites might be maintained,[69]and hence one of the forms observed in the case of a change ofgensby adrogation was thesacrorum detestatio, apublic declaration that the individual who sought this change had ceased to claim any participation in thesacraof his race. The care for the continuity of thesacraof the clan was long one of the professed, and perhaps real, bars to marriage between Patricians and Plebeians.[70]
This question of thesacrais an index to the fact that membership of agensmight be either natural or artificial. The natural mode of entrance was by birth; and in the case of the patrician clans, before the right of intermarriage was extended to the Plebs, marriage with a patrician mother and by the ceremony of theconfarreatiowas necessary to constitutegentilitasfor the child. Later any form of marriage sufficed, as it had doubtless always done in the case of the plebeian clans. The child, in accordance with the patriarchal principle, belonged to the clan of his father.
The form of religious marriage peculiar to the Patricians necessitated a change ofgenson the part of the wife; for a woman married by the ceremony ofconfarreatiobecame a partner in the property andsacraof her husband,[71]and there is even some trace of her having originally changed her gentile name as well.[72]The ordinary plebeian form of marriage by mere agreement (consensus), which ultimately became almost universal, did not lead to a woman’s falling into thepotestasof her husband, unless this power were assumed, originally by prescriptive right (usus), later by the ceremony of fictitious purchase (coemptio). In such a case she became a member of her husband’s family, but it is questionable whether the logical conclusion was pressed and she also became a member of hisgens. The anomaly, if it existed, may perhaps be explained by the fact that the Plebeians, who evolved these forms of marriage, had, as a rule, nogentes.
The clan might also be changed by adoption.Adrogatio—perhaps the only form known to the old patrician community—was the method by which the head of a family voluntarily submitted himself to thepotestasof another.Adoptio, on the other hand, was the change from onepotestasto another. If there wasa form of true adoption by patrician law,[73]it has been lost to us, and the earliest that we hear of is the plebeian form by threefold sale recognised in the Twelve Tables. At a later period it might also be effected by a written testament.
The family (familia)[74]in its original and proper meaning is the aggregate of members of a household under a common head; this head was thepaterfamilias—theonlymember of the household who possesses legal rights.
The two ideas underlying the Roman conception of the family are those of unity and power, and both are singularly perfect. The former is attained, and the latter exercised, by the head. It is through him alone that the family is a person; and the authority he wields over the members subordinated to his will is calledpotestas.[75]The power over the children is described aspatria potestas, as over the slave it isdominica. The two do not differ legally; there is only a difference of ethical signification. Under thispotestasfall, firstly, the children, both sons and daughters; secondly, the descendants of these children; thirdly, the wife united to her lord by a form of marriage which makes her a member of the family; fourthly, the wives of the sons and grandsons who have entered thefamiliaby a similar binding form of marriage. There is a complete absence of independent rights amongst these members of the household. As to the wife, any property that she might be possessed of, or which she acquired, passed absolutely into the power of her husband. He was responsible for her conduct and possessed the right of moderate chastisement. Severer punishment for wrongs to the household required the support of the family council. No legal action might be brought by the woman against her lord, for they were not two personalities, but one. He might divorce her on good grounds,[76]but if she were married under a form which subjected her to his power, she had no legal means of freeing herself from his tyrannous rule. Her position is that of a daughter and she inherits equally with her children. The decision as to whether thechild of the marriage was to be reared (liberi susceptio) belonged to the father, but was, in the interest of the state, subjected at an early period to certain modifications. The “laws of Romulus”—that is, the early pontifical law—enjoined the rearing of every male child and of the first-born of the females; the exposure of offspring was to receive the assent of five neighbours,[77]and disobedience of these canons was to be visited with severe penalties on the parent who neglected the welfare of the state. The children and their descendants are never released from the absolute rule of the father as long as he lives. They cannot own property; for all that they acquire belongs to the common stock and is at the disposal of the head of the family. At best the father might permit the son, as he might permit the slave, to employ his own earnings for his own use. This is thepeculium. Yet the grant is a mere concession, and one which may be withdrawn at any moment. If the son dies it lapses to the father; if the father dies it falls to the heir.
The child, as having no property, cannot give satisfaction for wrongs which he has committed. He is regarded as irresponsible, and responsibility for his conduct devolved on the father, who might either give compensation to the injured man, or surrender the delinquent for him to visit with his vengeance, or to use as a means of working out the damage (noxae deditio);[78]in the latter case the child becomes for ever the property of another. The father might sell him; if beyond the limits of the country, the son becomes a slave; if within the limits, he is one in private though not in public law (in causa mancipii), and exchanges servitude to the father for that to the purchaser. In an age which recognised no free contract of labour, the sale of the son was a means of putting him out to business.[79]The injunction of the Twelve Tables (perhaps the recognition of a custom far earlier than this law) that the thrice-repeated sale of a son involved loss of thepatria potestas,[80]was an attempt to put anend to an inhuman traffic. The child as a thing might be stolen or detained, and as such be the object of recovery. In this case the father “vindicates” him as he would a chattel or a beast that had strayed from the homestead.[81]
The father might scourge or imprison his child,[82]even put him to death. The formula employed in adrogation (the procedure by which a man puts himself into the paternal power of another) shows that thejus vitae necisquewas the most distinctive aspect of thepatria potestas.[83]It was a power never questioned throughout the whole of Republican history, and which received no legal limitations until the time of the Middle Empire.[84]Sometimes it was employed as a means of saving the honour of the family, and there are instances of the son guilty of theft, the daughter of unchastity, being thus put to death;[85]sometimes it was enforced in the interest of the state to punish a public crime.[86]
Although law is in a sense an outline of life, it would be very misleading to fill up the content of Roman private life by analogy with this harsh outline. Like most of the theory of Roman law it had little correspondence with the facts; and this non-correspondence of fact and theory is the source of the strength and the beauty of Roman family life. If legal obligations do not exist between husband and wife, father and child, their place, in a civilised community, must be taken by moral obligations; and the very absence of legal sanctions will make these moral bonds peculiarly strong. It was so with the Roman family. It was an isolated, self-existent unit. The members clung closely to one another and to their head. The power of the father—the source of the unity of the household—fostered the devotion to the hearth, the love of home, whichis such a distinctive attribute of the Roman. It created the belief that the members of the household, owing allegiance to a common chief, should act loyally by one another in all the relations of life, and loyalty to a living head begat loyalty to his predecessors; traditions of this union as persisting under the rule of a long line of deceased ancestors, account for the hereditary policy of Roman houses—the championship of principles advocated for centuries by such clans as the Valerii, the Porcii, and the Claudii.
The moral influence on thepaterwas also great. He defends, not his own selfish rights, but the rights of a corporation dependent on him; “self-help” is the essence of the principles of early Roman law. In private matters the authority of the state is weak, that of the individual strong. The rule of the Roman father was the benevolent despotism that embraces many within the sphere of its despotic interests, that forces others to observe its rights because its interests arenotpersonal, that produces a deep sense of moral and religious responsibility towards the weak, a stern unyielding attitude towards the man who would infringe upon their rights. The only “individual” known to Roman law is thepaterfamilias, but his was a glorified individuality, which, through its rule over the family, gathered strength to rule the world.
If it be thought that the loss of character must have been proportionally great in the case of the dependent members of the household, it must be remembered that thepatria potestasis, for the individual, a transitory condition of things. Each subject member is preparing himself to be apaterin his own right. With the death of the existing head,allthe hitherto dependent members are freed from thepotestas; each forms afamiliaof his own; even his grandchildren by predeceased sons become heads of houses; the daughters are also freed from power, although, out of deference to the weakness of the sex, they are still under guardianship (tutela).[87]The family splits up into a number offamiliae, and none of these is of more importance than theother. For the evils of primogeniture were unknown to Roman law. No hereditary caste based on the accident of birth was ever formed; and when we find an aristocracy of birth arising, it is the fittest son who can succeed his father in political office; for the bulk of the property, on which political influence was based, has not passed into the hands of some incapable elder brother.
But, apart from the moral checks on the authority of the father, which the absence of legal restraints made peculiarly strong, the civil law, public opinion, and the positive morality which found expression through certain religious or semi-religious organs, did impose certain restraints on a possible abuse of power. If the father is a lunatic (furiosus) he is, with his property, put under the care of his next of kin;[88]if he is wasteful (prodigus) and is squandering the property, of which (though legally it is his own) he is regarded only as the trustee, he is debarred from all commercial relations (commercium)[89]and prohibited from disposing of goods of which he is an unworthy administrator.
A very real customary control, one not actually enjoined by the civil law, but enforced by the powerful sovereign, which the Romans called the custom of their ancestors (mos majorum), was the obligation incumbent on the father of consulting a council of relatives (consilium domesticum) before taking any extreme step with respect to the members of his family. This was never limited to the agnatic circle; it admitted blood relations and relatives by marriage, while personal friends outside the family might be summoned as well.[90]Any severe punishment of a child and the divorce of a wife had to be submitted to the judgment of this assembly. How strong the sentiment in favour of this procedure was may be judged from the fact that in later times we find the censor (in Republican times the personal exponent of the moral sense of the community) degrading a senator who had divorced his wifewithout taking advice of the family council.[91]The sentiment was but one expression of the principle which runs through the whole of Roman life, that no man should act in an important matter without taking counsel of those best qualified to give it.
Certain extreme abuses of the paternal power were prohibited by religious law (fas), which in such cases enjoinscapitalpenalties. By a supposed law of Romulus, a man who sells his wife is to be sacrificed to the infernal gods; if he divorces her without due cause, half of his property is to be confiscated to his wife and half to the goddess Ceres.[92]With the secularisation of Roman law such penalties disappeared, and it is questionable whether they often required enforcement,[93]for such religious bans are mainly the expression of a strong moral sentiment.
Lastly, there was the principle that the paternal power cannot interfere with thejus publicum. It is a principle that applies both to persons and to property. In its first application it means that the son can exercise his vote independently of the paternal control; that he can fill a magistracy which subjects his father to his command; that, at least in later times, even the function of guardianship (tutela) can be exercised without the father’s will; for this, too, is a public duty.[94]With respect to property, public law, though not infringing on the theory that all goods belong to thepaterfamilias, yet does not regard them as the object of purely individual ownership. The father is rather a trustee than an owner, and even under the Servian constitution, that is, according to tradition, before the close of the monarchy, the value of a freehold is taken to qualify the members of thefamilia, not merely its head, for service to the state, and ultimately for the exercise of political rights.[95]
An instance of the triumph of the state in its conflict with private property is furnished by the position of the bondsman (nexus). It may be appropriately discussed here; for thenexusis in private law practically in the position of the son under power. He was a man who had contracted a debt on the security of his person,[96]and who, on non-fulfilment of that obligation, had had his body and his services attached by the creditor. In private law he is a slave; in public law he is a free-born Roman citizen, and may be summoned for service in the legions when the state needs his help.
It would be an anachronism to enter on a full treatment of Roman slavery in connexion with the beginnings of Roman history. Almost all that we know of the legal relations of slaves to their masters, of their capacities and their disabilities, their hopes of freedom, their position in the home, and their influence on the public life of the city, refers to a far later period. Yet the class doubtless existed from the earliest times, and as Roman legal conceptions became modified but never completely altered by the course of time, it is possible to give a faint outline of the conditions of slavery in the Regal and early Republican periods.
Slavery may at all periods of the history of Rome be defined as an absence of personality. The slave was a thing (res) and belonged to that more valuable class of chattels which the Romans calledres mancipi, and which included land and beasts of burden. He was, therefore, a part of the homestead (familia),[97]the transfer of any portion of which required the most solemn forms of Roman law. As a thing, the master is said to exercisedominiumover him; he might deal with him as he pleased, and had over him the power of life and death. The slave, on the other hand, has not only no rights against his master, but cannot conclude legal relations with others. He has no legal relatives, no legal wife; he may be permitted to retain the fruits of hisown labour, but even his master’s will cannot make it his property. How far this “thing” possessed a potential personality we do not know—how far, that is, the personality inherent in him could be realised by subsequent emancipation. Liberation could at best have raised the slave to the condition of the client at this early period—a slight ascent in the scale of actual rights, but one that might have been valued for the greater personal freedom and the surer guarantee of religious protection which it gave. But the fact that the slave is a part of the homestead, and at the same time an intelligent being, makes him in the truest sense a member of the family. The owner is said to have power (potestas) over him, a word which is used only of rule over reasonable beings; and thisdominica potestasdoes not differ essentially from thepatria potestaswhich is exercised over the son. The treatment of the two was doubtless different, for the one would some day be a lord, the other would remain a slave, but their legal relation to thedominuswas the same.
But the legal status of the slave is no true index of his condition. This will depend on two factors, his origin and hissocialrelations to his master; and on both these grounds the early slavery of Rome must have compared favourably with that of later times. The slave trade was probably unknown, and the condition must have been mainly the result of capture in war from neighbouring states. Slavery is not altogether degrading when it is wholly the consequence of the laws of war. The slave was an Italian, perhaps of as noble birth as his master, and this, though it may have aggravated the bitterness of the lot, must have rendered possible an intimate social intercourse which would not have been possible with the barbarian, and must have forced on the master’s mind the conviction that a sudden turn in fortune’s wheel might placehimin the same position in the city of his serf. Again, the servitude was domestic; whether employed in the home, or on the common lands of the clan, or on the petty plot of ground that the master called his own, the slave was never severed from his master or his master’s kindred. We hear in early times of his sitting at his master’s table,[98]and of his being the tutor and playmate of his lord’s children.[99]He may in some cases have been better off than the client or the unattached Plebeian engaged in some petty trade. Certainly the opportunities for the primitive cultureafforded by the Roman household were more open to him than to the other orders excluded from the Patriciate. In the case of domestic slavery extending over a small area, public opinion is generally a powerful restraint on the master’s caprice. We do not know whether this opinion found a religious expression in such principles as those which protected the client’s rights; but the fact that the censor of the later Republic, who perpetuates the obligations of religious law, punishes acts of cruelty committed by thedominus,[100]may show that the slave was not wholly without the pale of divine protection.
If, as we have seen, the Roman’s chief mode of livelihood, the land, was not his own property but that of the clan, no individual disposition of it during lifetime or after death was possible, although there may have been some right of bequest over the movables classed asres nec mancipi. When the theory of common possession was modified by the recognition of a heritable allotment, bequest may have become possible; but doubtless intestate inheritance still continued to be the rule. A law of inheritance is first known to us from the Twelve Tables, which allowed the utmost freedom of bequest and legacy; but there was a survival both of theories and practices which show that testamentary disposition was originally regarded as the exception and not the rule.
First, we may notice that even in later times the immediate heirs of a man were regarded as having a claim to property, a kind of potential ownership, during the lifetime of thepater, and that inheritance is regarded merely as a continuation of ownership (dominium);[101]and in accordance with this view we find the practice of holding an inheritance in joint ownership, the co-heirs bearing the name ofconsortes.[102]
Secondly, the earliest testaments of which we have knowledge were public acts performed before thecomitiaof the people. The most ancient was the patrician form of testament—thetestamentum comitiis calatis—effected at thecomitia curiatawhichwere summoned (calata) twice a year for this purpose.[103]The original purpose of this public testament is obscure. It is possible that originally it took place when there was no direct heir (suus heres) to receive the inheritance, and that it was accompanied by some form of adoption of a successor. The person adopted might have been the son belonging to another family; although of such a procedure there is no further trace in Roman law.[104]
The publicity of the act and the infrequency of its occurrence show how exceptional a will must have been, and that the normal mode of succession was that by intestacy. But we have no warrant for saying that this testament at thecomitia calatawas an act of private legislation and was permitted by the assembled burgesses. The gathering was perhaps merely a form, and the persons assembled may have acted only as witnesses;[105]but the very publicity would have made it almost impossible to pass over a son of the family, unless there were expressed grounds for his disinheritance.
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 theexercitusin 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 thecomitia 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 thecomitia 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 thepatresgathered 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 testamentper aes et libram, one use of themancipatioor 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 testamentper aes et librammust 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 mancipationto 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 thelibripens, 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 thefamiliae emptoris 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 thefamiliae emptorbecomes 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 thefamiliae emptorsinks 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 centuryB.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 afilius familiaswithout formal disinheritance (exheredatio) rendered the will invalid; and in this case thesuisucceeded 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 thelaisser faireprinciples of the Roman, and history shows that the Decemvirs were right when they entrusted this discretionary power wholly to thepater. 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 theherediummight be given, while the younger sons were drafted into colonies. We do notknow the principles; but that the principles tended to the preservation of the family is proved by the long traditions of the noble Roman houses.