A history and description of Roman political institutions

Front matter

ROMAN • POLITIC INSTITUTIONS

ABBOTT

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Preface

This book is intended to serve as an introduction to the study of Roman political institutions for those who may wish to carry on more extended investigations in that field, and to give a reasonable acquaintance with the subject to the student of Roman life and literature. It may be said with truth that the art and literature of Rome never had a distinctively national character. Both are hybrid products. Her political institutions, however, are essentially her own, and are, one might almost say, the only characteristic product of the Roman genius. We have tacitly recognized how large a place they fill in Roman history, and how valuable an inheritance they have been to modern civilization, but strangely enough we have almost entirely neglected the study of them in this country. This neglect seems the more surprising since, from the disciplinary point of view, perhaps no subject furnishes a better training in practical logic or gives us a clearer insight into the workings of the average human mind. These facts have been mentioned, not for the purpose of offering a plea for the study of Roman political institutions, but rather in explanation of the reasons which led to the writing of this book.

My aim has been to give a connected view of the development of the constitution from the earliest times down through the accession of Diocletian. Each one of the three iv PREFACE

periods in its history, — the monarchical, the republican, and the imperial, — is presented as a unit, and its institutions are treated first on the historical, then on the descriptive, side. The historical treatment seemed to me necessary because without it one cannot get a conception of the constitution as an organic whole nor can one understand how the relation of the several parts to one another determined in large measure the development of each. On the other hand, few students will get a complete view and a clear idea of any one institution without a separate description of it. The book is so arranged, however, that teachers who wish to do so may use either the historical or the descriptive part separately.

The brevity at which I have aimed has made it necessary at times in discussing controverted questions to content myself with stating what seemed to me the most probable theory. It has possibly at other points led to the omission of certain details whose presentation might modify the reader's conception of the institution in question. If this has given a dogmatic tone to any part of the work, I hope that the defect has been corrected by the fact that reference has been made to the sources for almost every important statement, and that modern literature has been freely cited, so that the reader may form an independent judgment or may acquaint himself with the views held by others on the matter in question.

Of the works which I have found of service in the preparation of this book I would mention my great indebtedness

PREFACE V

to the treatises on the Roman constitution by Mommsen,

Herzog, Willems, and Schiller, and to the general histories

of Niese, Schiller, and Pelham. I wish also to express my

gratitude to Professor F. G. Moore, of Dartmouth College,

to Professor Edward Capps and Dr. E. A. Bechtel, of the

University of Chicago, for the many valuable suggestions

which they have made while the book was passing through

the press, and to Dr. J. D. Wolcott and Mr. Tenny Frank,

of the University of Chicago, and to Dr. W. K. Clement,

of the Northwestern University, for assistance in verifying

the references.

FRANK FROST ABBOTT Chicago, July i, 1901

A separate treatment of the Roman judicial system did

not fall within the scope of this book as originally planned,

but in response to the request of teachers who are using

the work, a supplement upon the Roman courts is now

added to it. In the preparation of this supplement

Greenidge's Legal Procedure of Cicero's Time, Willems'

Le Droit Public Romain, Madvig's Die Ferfassung and

Verwaltung des Romischen Staates, and Schiller's Staats-

und Rechtsaltertilmer have been found of great service.

It is hoped that with this addition the book may deserve

still more the friendly reception which it has had in its

original form.

FRANK FROST ABBOTT Chicago, April 30, 1907

Part II — Republican Period

III. The Patrician City 24

IV. The Struggle between the Orders .... 41 V. The Supremacy of the Nobilitas 63

VI. The Struggle between the Democracy and

the Nobilitas 94

VII. The Period of Transition 129

Section n — Descriptive

VIII. The Attributes of Magistracy 150

IX. The Several Magistracies 175

X. The Senate 220

XL The People 245

vii

Vlll CONTENTS

PART III — IMPERIAL PERIOD Chapter Page

XII. The Establishment of the Empire . . . . 266

XIII. From Tiberius to Nero 289

XIV. The Flavian Emperors 305

XV. From Nerva to Septimius Severus 317

XVI. The Empire of the Third Century and the

Reforms of Diocletian 329

Section II — Descriptive

XVII. The Emperor 341

XVIII. Imperial Officials 359

XIX. The Magistracies 374

XX. The Senate 381

XXL The People 388

Supplement. The Roman Judicial System ...... 400

Appendix I. Sententiae, Senatus Con sulta, and other

Documents 413

Appendix II. Some Passages, dealing with Political

Institutions, found in Latin Writers . . 426

Index 441

ROMAN POLITICAL INSTITUTIONS

Chapter I

I. The Gens. The basis of political organization among the early Romans was the gens or clan. This unit of organization, which in one form or another is common to the Indo-European peoples, retained many of its characteristics and some measure of its social and political importance to a very late period. Cicero describes the gentiles of his day, or the members of a clan, as those who could trace their lineage back to a common ancestor, who could claim that their ancestors had all been freemen, and who were in possession of their full rights. The civil and political rights of the individual came to him as a member of a family belonging to a gens, and, since membership in a particular gens was indicated by the possession of the nomen gentilicium y or clan name, the legal and social importance which attached to the name is readily understood. In fact, in the earliest period, even the right to use the land,

2 MONARCHICAL PERIOD: HISTORICAL

which was the property of the clan as a whole, was enjoyed by the individual only by virtue of his membership in one of those organizations. Attached to the various gentes, or to families belonging to the gentes, were hereditary dependents called clientes, who enjoyed some of the privileges of members of a clan, and in return therefor owed to their patronus such services as assisting in the payment of his ransom, if captured in time of war, and contributing to his daughter's dower. The control of clan affairs rested probably with the members of the clan, or with its representatives. Had the organization been under the headship of an individual, some traces of such a system would be discernible in historic times.

2. Pagi and their Confederation. The simplest purely political community was formed by the settlement of several clans about an arx or fortified point. These communities, called pagi, were, like the gentes, either purely democratic, or controlled by the elders. The union of "hill settlements" adjacent to one another for mutual protection in trade intercourse naturally followed. Perhaps several of these confederacies were formed in Latium, but of course the confederacy of greatest historic importance is the one having Alba Longa for its common point of meeting. The choice of that town as the place at which, even in historic times, the members of the confederacy met to offer a joint sacrifice to Jupiter Latiaris, shows plainly enough that Alba Longa was originally at the head of the league, but before the dawn of history Rome had succeeded her in the headship of at least this group of communities.

3. The Founding of Rome. According to the pictur-. esque account which Roman writers have left us in prose and verse of the founding of their native city, Rome was an offshoot of Alba Longa, since Romulus and Remus were grandsons of Numitor, the last of the line of Alban kings who traced their lineage back to Ascanius, the son of Aeneas. The tradition which traced the beginnings of Rome to a descendant of Aeneas is only one of the many accounts which sought to bring Rome into connection with Greece. The stories of Evander, of Heracles, and of the Pelasgi, as they are recounted, for instance, by Livy, illustrate the same tendency. Greek and Roman writers dated the founding of the city all the way from 753 to 747 B.C. The first mentioned date, which Varro adopted, is perhaps the one most commonly accepted by the ancients. From this time to the establishment of the republic, in 509 B.C., seven kings reigned, by name Romulus, Numa Pompilius, Tullus Hostilius, Ancus Marcius, L. Tarquinius Priscus, Servius Tullius, and L. Tarquinius Superbus.

4. The Regal Period. According to tradition, the first king laid the political foundations for the city, by creating the senate, and by dividing the people into curiae. He also extended Roman power by successful wars. Numa Pompilius is the antithesis, in many ways, of Romulus. He organized priesthoods, established religious rites, and sought to develop the religious life of the people. It was the main purpose of Tullus Hostilius, as it had been that of Romulus, to extend the material power of Rome. Ancus Marcius, the fourth king, represents in a way the two types in combination. The peaceful development of Rome was farthered in his reign by the founding of Ostia and the bridging of the Tiber, while her prestige in war was maintained with success. To L. Tarquinius, who was a Greek by descent, but came to Rome from Tarquinii in Etruria, many of the great public works of Rome, notably the Circus and the Cloaca Maxima, were attributed. He

4 MONARCHICAL PERIOD: HISTORICAL

distinguished himself likewise in wars against the Latins and Etruscans.

After Romulus, Servius Tullius was regarded as the great political organizer of the Romans. To him tradition ascribed the division of the people into classes and centuries, the introduction of the tribus as a local unit of organization, and the completion of the great encircling wall. Tarquinius Superbus is the typical tyrant, and the outrage of Lucretia by his son Sextus marked the climax of the autocratic course pursued by his family, and led to the overthrow of the monarchy.

5. Sources of the Traditional Account. As has been stated already, the part which the Greeks played in the creation and elaboration of the story of the founding of Rome, and of its history under the kings, is discernible at many points. More or less cleverly dovetailed into these productions of the Greek fancy, or into the tales borrowed from Greek history, are folklore stories, explanations invented at a comparatively late date to account for the existence of ancient monuments, of old customs and longestablished institutions, and some residuum of authentic tradition. These are the main elements in the traditional accounts set down, for instance, by Livy in the first book of his history, and by Cicero in his de Re Publico,. So far as we know, a literary form was first given to the story by Fabius Pictor in his history of the Punic wars in the third century. Out of this account the finished productions of the late republic and early empire developed, thanks to the additions and embellishments of successive generations.

6. The Making of Rome. It would take us too far from our purpose to analyze the traditional accounts of the early history of Rome, and to separate from one another the constituent elements mentioned above. It is important for us, however, to note certain parts of the story which can be established with certainty, or with a high degree of probability. We can, for instance, rely upon the fact that the original settlement out of which the city of Rome developed was made on the left bank of the Tiber, about fifteen miles from the mouth of the river. Some portions of the wall of the old Palatine settlement are still in situ, and from them the compass of the early city can be fairly well determined. Independent settlements existed on the Quirinal, the Esquiline, the Capitoline, and the Caelian also. These hills with the citadels upon them were places of refuge also, in case of necessity, for the settlers upon the adjacent plains, and at a very early date all these hill settlements were fused into a single city. The territory of this unified community was first extended, by conquest, to the south of the city, and along the left bank of the Tiber to its mouth. Tradition is undoubtedly right in dating expansion in this direction from the early part of the regal period.

7. Its Population. The various traditions connected with the founding of the city agree in stating that the population of Rome was divided into three parts. According to the commonly accepted form of the tradition, these three parts, the Ramnes, Tities, and Luceres, were independent elements of different origin, the Ramnes being the original settlers of Roma quadrata, the Tities a Sabine community, while the identity of the Luceres was a matter of as great uncertainty to the ancients as it is to us to-day. Some modern writers are inclined to accept this view of the case. Others find in the division of the community into three " tribes " only an instance of the adoption of a system of political organization which was not unknown to

6 MONARCHICAL PERIOD: HISTORICAL

other Italian communities. The term tribus can of course be. urged in support of the latter view. The exact truth in the matter will probably never be known. It may be regarded as highly probable, however, that the original Latin community was reinforced by a colony of Sabine invaders, which in course of time was completely fused with the Palatine settlements into a harmonious political organization.

8. Early Form of Government. We have already seen reason to believe that the affairs of the clan were managed by the members or by the elders, who represented it. With the founding of the city a new and predominant element was introduced into the political organization. The clans which were fused into a single community agreed in accepting a single political head, called a rex, who was to hold his position for life, while the elders or patres of the various gentes formed the king's council. To this body the control of the state fell on the death of the king.

9. Treatment of Conquered Peoples. The history of Rome under the kings falls naturally into two epochs. The second of these two periods covers the reigns of the last three kings, and is characterized by the extension of Rome's territory, by the development of the plebs and their partial incorporation in the body politic, by the appearance on the throne of kings of foreign birth, and by the fact that the monarchy became hereditary. The ambitious policy of conquest which the Tarquins adopted was attended with success, but it brought the Romans face to face with difficult political questions of great importance. What disposition should be made of conquered territory ? What standing should conquered peoples have in the state ? The first problem was solved in most cases by the permanent occupation of a part of the newly acquired territory by the Roman state as ager publicus, and the assignment of the rest to the conquered people with the right of use, under certain conditions, but not of full ownership. A majority of those who lived in these subjugated districts probably accepted these conditions and remained upon the land, but some of them came to Rome and settled there. In a few cases the most prominent families among the newcomers were admitted to the full rights of citizenship. This was perhaps the plan adopted in the case of Alba Longa. According to Livy's narrative, after the destruction of that city, its leading clans were admitted among the gentes, and their representatives were made patres. Such generous treatment of conquered peoples was, however, exceptional. Ordinarily, if we except those who were brought to Rome as slaves, newcomers, whether they came to the city after the conquest of their native land, or were attracted to it by the possibilities of gain which its growth held out, assumed one of two positions in the community. They either attached themselves as clientes (cf. p. 2) to the representatives of prominent Roman families and gained certain rights and privileges through their patroni, or, while maintaining their personal freedom, they were thought of as bearing to the king a relation similar to that which the client bore to his patron. This second class of inhabitants was probably augmented by the gradual release of many clients from the performance of the duties which they owed to their patrons. In these two ways a new element developed in the community, which had no part in the management of affairs, an element whose very name of plebes indicated its lack of organization.

10. Plebeians enrolled in the Army. But this narrow policy, which not only denied to a large part of the community all political privileges, and civil rights in some measure,

8 MONARCHICAL PERIOD: HISTORICAL

but also exempted the same element from the necessity of performing military service, was entirely out of harmony with the career of conquest on which the Roman state had entered. The farther the limits of the Roman territory were extended, the more pressing became the need of more fighting men to hold in check the newly subdued peoples within its confines, and to ward off the attacks of enemies from without. The king, as chief executive of the state and commander-in-chief of the army, felt the necessity first and most keenly, and tradition is undoubtedly right in stating that on one or two. occasions he took the initiative, with more or less success, in admitting some plebeians to the rights of citizenship. The citizens were naturally loath to lose part of their privileges by sharing them with others, but the military necessities of the case forced them to make certain concessions, and under the constitution which is connected with the name of Servius Tullius the plebeians as well as the patricians, the members of the old ge?ites, were enrolled in the army. We cannot say with certainty what concessions on the part of the patricians made the plebeians willing to undergo the hardships and expense of military service, and insured their loyalty to the state. It would seem, however, to have been the concession of the right to the full ownership of land, which had probably been denied to them before. From this time on, the plebeians had a stake in the community, and it was to their interest to maintain order within its limits and to protect it from its enemies. This change in their position was of no immediate political significance. They were still excluded from any share in the management of the state, but the establishment of an organization, of which plebeians as well as patricians were members, even though it was a body of a military character, had political possibilities for the future.

11. The Results of Rome's Narrow Policy. It may have been well for the ultimate development of Rome that the members of the old ge?ites adopted the narrow policy of retaining all political power in their own hands. Had they followed the precedent which Tullus Hostilius seems to have set in the case of Alba Longa, and admitted new gentes on a par with the old ones, the narrow tribal basis of the state might have lasted for an indefinite time. Under the ungenerous policy which was adopted, the right to control the internal and the foreign affairs of the state was the hereditary privilege of a comparatively small body of men. Over against them was a large and rapidly growing element in the community whose intolerable position would force it to break down the opposing barriers, and thus to overthrow the tribal system on which the state was based. In this connection it is significant that the new Servian organization recognized the individual as an individual and not solely as a member of a certain clan, and that the members of the new body were classified on the basis of their property and not of their family connections.

12. Etruscan Supremacy. It is very difficult to understand the foreign relations of Rome during the reigns of the last three kings, which we are now considering. According to tradition, the first of the three, Tarquinius Priscus, during the reign of his predecessor, Ancus Marcius, came to Rome from Tarquinii in Etruria, and on the death of the king succeeded to the throne. It has been suspected that under the guise of the Etruscan ancestry of Tarquin the conquest of Rome by the Etruscans has been concealed, and it is true that many changes attributed to the Tarquins may be urged in support of this hypothesis, but this conclusion is at least open to serious doubt. The favorable location of the city and its rapid growth would

IO MONARCHICAL PERIOD : HISTORICAL

undoubtedly attract many strangers to the city. These newcomers, as we have already observed, were in some cases admitted to the full rights of citizenship, and it would not have been an extremely difficult thing for one of these naturalized citizens, if he were a leader of skill and ability, to gain the throne. Such a leader the first of the Tarquins seems to have been, and there is no sufficient reason forrefusing to accept the tradition of Tarquinius Priscus at its face value.

13. Political Changes. The form of government underwent a noteworthy change under the Tarquins in the substitution of an hereditary for an elective monarchy, and in the subordination of the senate to the king. The first of these two changes is indicated plainly enough by the kinship existing between the last three kings, and by the passage of the scepter to Servius Tullius and to Tarquinius Superbus without the observance of the interregnum. The fact just mentioned illustrates also the autocratic attitude which the reigning family assumed toward the senate. On the death of the king under the old regime the auspicia reverted to the senate, and that body, through representatives chosen from its own number, exercised the supreme executive power. The assumption of power by Servius Tullius and Tarquinius Superbus, neque populi iussu neque auctoribus patribus (Liv. I. 49. 3), made a serious breach in the theory that the senate was the ultimate depositary of supreme power, gave a dangerous continuity to the king's office and prevented the choice by the senate of a monarch satisfactory to it.

The jealousy which the patricians felt at this usurpation of power by the king led to the overthrow of the monarchy. There are some indications of a rapprochement between the

ROME UNDER THE KINGS II

king and the plebeians, but the plebeians were exhausted and embittered by long-continued service in the army and by forced labor in the construction of public works, so that they either did not come to the defense of Tarquinius Superbus, or helped the patricians to overthrow him.

SECTION II — DESCRIPTIVE

Chapter II Monarchical Institutions

14. Sources of Information. The same difficulties which beset one's path in seeking to trace the course of political events during the regal period bring to naught in some respects every effort to gain a clear conception of the political institutions of the epoch in question. Our knowledge of these institutions is derived in the main from tradition, from the explanatory statements of Latin writers, and from an investigation of the political institutions of the republican period. Some further light is thrown on early institutions by an investigation of early laws, treaties, legal and religious formulae, and by a study of the fundamental meaning of the titles of the several offices, as in the case of the quaestor es parricidii.

Let us confine our attention for the present to the three principal sources, noting at the outset some of the points at which these sources must be used with caution. Many of the descriptions which we find in Livy of the Roman constitution under the kings owe their existence to a deliberate attempt at a later date to account for a political term or usage or institution, which in course of time had lost its original meaning. This same inventive tendency vitiates in some measure the explanations made by the later antiquarians, whose views are also more or less colored by their

MONARCHICAL INSTITUTIONS I 3

knowledge of the form which an ancient institution had taken in their own day. So, for instance, historians and antiquarians of the first century b.c. may have been led by their knowledge of the constitutional character of the consulship to assume erroneously that certain corresponding constitutional restrictions were put on the power of the king. It is evident that in using the third source of information, that is, in reconstructing the political institutions of the regal period from our knowledge of the forms which they had taken in republican times, we must make due allowance for development or decay, and must not be guilty of the same mistake which the Roman antiquarians made. The way in which the nature of the interregnum is determined illustrates the use which may be made of these different sources of information. First of all, the technical term itself indicates the period elapsing between the death, resignation, or dethronement of one king and the accession of his successor. This general notion is amplified by the traditional account given in more or less detail by Livy, Dionysius, and Cicero of the way in which the affairs of state were conducted after the death of each one of the first four kings ; explanatory remarks on the institution have been made by the commentators Asconius and Servius, and these three sources of information have been supplemented by the contemporaneous accounts which Cicero and other writers have left us of the method of procedure during the interregnums of 53 B.C.

15. The Senate as the Ultimate Source of Authority. As we have already had occasion to notice (p. 2), in the prehistoric tribal community the control of affairs was largely, if not entirely, vested in the clan elders. On the establishment of the monarchy, the supreme power was transferred to a single individual, to be exercised by him

14 MONARCHICAL PERIOD: DESCRIPTIVE

during his lifetime. At his death the sovereignty naturally reverted to the elders. This view of the situation Livy has expressed, when, after mentioning the death of Tullus Hostilius, he remarks (I. 32. 1), res, ut institutum iam ihde ab initio erat, ad patres rediit. This view that the senate was the ultimate source of authority was the aristocratic theory of the constitution down to the end of the republican period, and was the cause of violent and protracted struggles, first between patricians and plebeians, and later between the nobilitas and the democracy.

16. Method of Selecting a King. The supreme executive power, which thus reverted to the senate, and in the later republican period to the patrician senators, was exercised by that body in a peculiar fashion. A member of the senate, bearing the title of interrex, and chosen in a way not entirely clear to us, assumed charge of affairs for a period of five days. He nominated a second interrex, and this system was continued until a king was selected. The choice was made by the interrex in harmony with the wishes of the senate, and was submitted by him for approval to the people assembled by curiae. The senate then ratified the selection by passing the auctoritas patrum, and the candidate was formally declared king by the interrex. The ceremony ended when the newly elected king had taken the auspices and had been vested with the imperium by the lex curiata de imperio. The selection of a king rested essentially with the senate. His election or confirmation by the people was a matter of form, although, since the king was primarily the leader of the army, the hearty support of the fighting men of the community was a matter of great importance. Since the real selection of the king was made by the senate through one of its own number, the auctoritas patrum had a formal significance

MONARCHICAL INSTITUTIONS I 5

only, although it was a safeguard which might take on a real meaning in the case of a usurper or a headstrong interrex. The passage of the lex de imperio, which is not properly a part of the ceremony attending the choice, and the inauguration of the king, were also matters of form in so far as the choice of the king was concerned, since the refusal of the curiae to pass the measure is inconceivable. 17. Powers of the King. Sallust characterizes the power of the king as an imperium legitimum. This can mean little more than that the king was to observe the mos maiorum. So, for instance, he was expected, although not required, to consult the senate on important matters. This general limitation on the power of the king found definite expression, perhaps, in the lex de imperio, which was probably in the nature of a contract, on the part of the people to render obedience, on the part of the king to observe the practices of the forefathers. Except for the limitations just mentioned, the king was a supreme ruler, — the chief executive, the chief priest, the lawgiver, and the judge of the state. After war had been declared he had sole power to levy and organize troops, to choose leaders, and to conduct the campaign. The property of the state was under his control, and he was authorized to dispose of conquered territory and to take charge of public works. He was the official representative of the community in its relations with the gods, as well as in its dealings with other communities. Changes of a permanent or far-reaching character, however, such as the introduction of new deities, could only be made with the consent of the priests. It would be unwarrantable to import modern notions into our conception of the king's position and to speak of him as legislating for the people, but undoubtedly he formulated and executed such measures as he thought essential to the community, l6 MONARCHICAL PERIOD: DESCRIPTIVE