VI. THE SENATE…

VI. THE SENATE

The Roman constitution, in the form in which we have left it at the close of the period of its growth, was the chaotic result of attempts to arrest internal revolution, and of feeble and misdirected efforts to readjust the relations of outworn powers. A state in which three popular assemblies have each the right of passing binding acts of parliament, in which twenty magistrates with clashing authority have each the right of eliciting the sovereign will of the people, possesses no organisation which can satisfy the need for which constitutions exist—the ordered arrangement of all the wants of civic life by means of a series of uniform acts possessing perpetual validity. It is true that the search for a personal authority is the object of theoretic, not of practical, inquiry. The average man, who is fortunately the power that in the long run determines the shape that politics shall assume, seeks law alone and cares nothing for its source. The vagueness of the ultimate power does not affect him, if the rules it lays down are rigid and binding; he will accept principles in place of persons, and by doing so he proves that he is more scientific than the scientists. But the fundamental principles that lie behind the personal power in a state are too vast in their scope to apply immediately to the needs of human life. They require interpretation by means of legislative and executive authorities; and if these acts of interpretation are to have the character of principles, the dictating authorities must have a fixed character and a permanent life, and there must be some guarantee that they shall submit their judgments to the accumulated experience of the past. No such character and no such guarantee were to be found in the existing elements of the Roman state which had strict legal recognition. The comitia could, like a parliament in a modern state where no provision for a constituent assembly exists, go on in an endless career of constitution-making; the magistrates could interpret the laws at their own will, and by fighting out the merits of their rival interpretations amongst themselves paralyse the state or plunge it into anarchy. It was felt that a central power must reside somewhere, a power which should guide the people and control the magistrates, a power which should above all avert the terrible conflicts between rival authorities so amply encouraged by the existing law.

It was scarcely necessary, at any one point in the growth of the Roman constitution, to raise the question where this power was to be found. A chain of circumstances, some internal and some external, had provided a body of men possessing the three main qualifications necessary for the exercise of central authority—permanence, experience, and the free power of deliberation. With every step in the professed extension of popular privilege the power of the Roman Senate had increased; and the explanation of this anomaly is to be found in the fact on which we have already dwelt, that the distribution of authority amongst the popular assemblies, and the increase in the number of the magistracies, had involved such a weakening of the authority of magistrates and people as to render both incapable of any pretence at effective rule. The long series of wars in which Rome was engaged, from the commencement of the struggle with Pyrrhus to the close of the third contest with Carthage, and the new duties of administration entailed by the organisation of Italy and of the earlier provinces, exhibited this incapacity in a still more glaring light. But the growth of the Senate’s authority cannot be attributed mainly to the necessities of external administration; for the fundamental changes which conditioned its pre-eminence had come when Rome was little more than a city-state, and the Senate would have ruled had Rome continued to govern a tract of territory no larger than that possessed by a Cretan city. The Empire was the final ratification, the seal of the Senate’s authority; but the origin of this authority is to be found, not in the accident of conquest, but in the working of the Roman mind itself.

The circumstances which determined the growth of the power of this great council of state are connected, firstly, with the constitution of the council itself; secondly, with the changes in its presidency; and thirdly, with its absorption of isolated powers, some of which it drew from the incompetent hands of magistrates and people, others of which it created.

(i.) A nominee body, such as the Senate had originally been, may be moulded by the will of the nominator. The personal selection by the consuls of their intimate friends, the habit of omitting, at the annual revision of the list, the names of those who were alien to them in sympathy, while favouring the dignity of the aristocracy by making it appear as though exclusion were based on arbitrary preference and not on censure, yet diminished the independence and lessened the prestige of the councillors thus arbitrarily selected. It is true that the work of selection was performed by two consuls, and the judgment of the one might be balanced by the prejudice of the other; it is also true that public opinion would have been shocked by the choice of unworthy members of the magisterial council, and that the aristocracy itself would have resented the omission of a name distinguished by the great deeds of its possessor while in office; but the self-existence of this council could only be secured by the one great device of taking from the magistrate, whose duty it was to consult, the selection of the men whose duty it was to furnish him with advice. An opportunity for effecting this change was offered by the institution of the censorship. The selection of the Senate (lectio senatus) is indeed no part of the census, nor do we know when this highest of all the privileges of the censors was transferred to the new authority. But by the year 312 not only, as we have seen,[1301] had the transference been effected, but conditions of selection had been imposed which made the Senate partly a body of ex-curule magistrates, partly of nominees who had done good service to the state in the lesser grades of the magistracy or the higher ranks of the army. The vista that lay before the eyes of all aspirants to office was now no longer the annual magistracy, temporary in its nature and hampered by restrictions of every kind, but the seat in the Senate to which it was the stepping-stone. Within the charmed circle the grades of rank were still of importance, and the “servants of the order,”[1302] as the magistrates now tended to become, could find in the magnificent displays of the aedile, the high judicial functions of the praetor, the military leadership of the consul, and the moral control of the censor, the graduated satisfaction of the most diverse ambitions. But, even before the point of transition marked by the curule magistracy had been passed, the Roman noble tended to identify his interests with those of the house to which fate and the inevitable suffrages of the people had destined him. Interest even more than conviction would sanction such a choice; the vast nominal powers of the magistracy he could wield but for a year; of the clique of Three Hundred he was a life-long member. And the depressing influence, which contact with some scores of middle-aged and experienced men must have over youth even when blessed with genius, completed the work which interest and a vague class sympathy had begun. The new member moved in that narrow circle of ideas which through its very narrowness was strong enough to baffle Pyrrhus, Hannibal, and Philip, and to half complete the organisation of the world. The men that rose above it—Scipio, the Gracchi, Caesar—found endless difficulties in their path, and originality of conception, which is conspicuous by its absence in the organisation of the Roman Empire, led its possessors to exile, death, or monarchy. But the restraining influence was felt only in the essential principles of politics; in the control of details a free hand was still given to the administrator, and individuality of a uniform, decorous, and sober kind, combined with a high average level of practical ability, is to be found in the Roman senator of the best period. The narrowness of interest, the selfishness and the corruption, which are the besetting sins of a corporation with an assured tenure of rule, were also weakened in the case of the Roman Senate by the fact that, through the elective principle, it was always in constant touch with the people. It is true that the Senate was a parliament, the members of which were elected for life—a parliament, therefore, that might easily cease to represent the wishes of the electorate; but each member, until he obtained the coveted prize of the consulship, was ever submitting himself to the suffrages of the people in order to pass from grade to grade of honour. The susceptibilities of the “great tame beast” had to be respected; its eyes must be dazzled by occasional popular measures, by military achievements, at the worst by private bounty or by brilliant shows. The coterie system that worked the elections could do much, but it could not do everything; the race for honours provided stimuli sufficient—even when the public opinion of his own order failed—to keep a counsellor of Rome up to a high level of efficiency.

An order of nobility that is practically hereditary tends to attach to itself titles of nobility and external distinctions of dress. The democratic nomenclature of the Romans prevented the development of the first, and although within the Senate the grades of rank were clearly marked, and the distinctions between consulates, praetorii, aedilicii and the former holders of lesser magistracies were observed in the order of debate, these designations were not employed as constant epithets. But the desire of emphasising difference of functions by external signs, which is such a strongly marked feature in Roman public life, revealed itself fully in the senatorial garb. The present or past holder of curule office wore the purple-striped toga of the magistrate, the ordinary senator bore on his tunic a stripe of the same colour, which during the last century of the Republic was distinguished by its breadth from that worn by the order of the equites. Still more distinctly a part of the senatorial insignia is the senatorial shoe of red leather (calceus mulleus), which, distinct in shape as well as in colour, was worn by no other members of the state. The origin of the distinction is obscure; tradition explained the sandal as the royal footgear,[1303] which continued to be worn by the patrician senators in their character of potential kings (interreges).[1304] The gold ring the senators shared with the members of the equestrian order. Since the nobility of a senator ended with his life, it is needless to remark that the insignia could not be transmitted to descendants. Yet, as some of them—the gold ring and perhaps the latus clavus—had merely a social sanction, it is not improbable that the practically hereditary nature of the nobility had led to their being worn by members of senatorial families destined to follow their fathers’ career. There is, at least, no reason to suppose that the youthful order of laticlavii was an invention of the Emperor Augustus.[1305]

The identification of the magistracy with the Senate, which had been practically complete by the close of the third century of the Republic, was perfected in law by the dictator Sulla. The quaestorship was now made the stepping-stone to the Senate;[1306] the personal selection by the censors—which, in the face of unwritten custom, had been growing weaker year by year—was dispensed with; while their more important right of rejecting unworthy members could be resorted to only when the censorship was occasionally galvanised into new life. An automatic mode of recruiting the order should, if the power and dignity contemplated by the reactionary legislator were to be secured, have been accompanied by an equally automatic method of divesting of their rank those who had proved unworthy of it. But no such system was devised, and the morals of the Senate were for the first time left to chance, or rather to the reasonable hope that after the age of thirty-one (the lowest period of life at which senatorial dignity could be held) the character once formed would not deteriorate.

A more important factor in the change introduced by the Cornelian legislation was the permanent increase in the numbers of the Senate. Doubled by the immediate action of the dictator, the body continued to maintain its complement of about 600 members; for twenty annual additions of ex-magistrates of the usual quaestorian age would enable it to retain this normal level. The large size thus given to the senatorial body is one of its most surprising features, when we consider the business with which it had to deal. Secrets that are uttered with bated breath in a modern cabinet were proclaimed aloud at Rome to an assembly of the size of a modern parliament. But there were no reports of proceedings for the eyes or ears of the outside world, and secrecy about reasons for policy was sometimes only too well kept. Such secrecy was often treated as suspicious by the professed leaders of the people at the close of the Republic, and the consciousness of danger felt in the Senate seemed mere weakness to the mob. The history of the Senate, if it does not show the futility of secret diplomacy, may yet prove it to be unnecessary that this diplomacy to be effective should be entrusted to a few.

(ii.) The freedom and power of a deliberative assembly depends very largely on the unrestricted right of debate and initiative possessed by its individual members. In theory the Roman senator was sorely hampered in the exercise of both of these powers. The body to which he belonged ever retained its formal character of a council of advisers; the magistrate might summon it or not at his discretion, might refuse to lay a particular question before the house, or decline to elicit the opinions (sententiae) of some suspected members, opinions which they had no power to give unasked. So long as these powers were in the hands of two consuls, a conspiracy of silence might easily impede the expression of the Senate’s judgment; but when the right of summoning and of laying business before the house became the property of the praetors in virtue of their imperium, and was subsequently, by an anomalous recognition of a revolutionary power, extended to the tribunate, the number of possible presidents was increased to twenty, and the Senate again drew its strength from the dissensions of the magistrates. Twenty men, even if they all represent a nobility, must also represent different shades of opinion, and will attempt to elicit views corresponding to their own, which may then be submitted to the approval and the votes of the house. The practice having early arisen that it was only a definite expression of opinion coming from some quarter of the house that should be submitted to the approval of its members, the magistrate, eager to put the desired motion (relatio), is now to a large extent dependent on the senator. And the few gaps that still remain in the latter’s power of initiative are filled up by ingenious fictions of debate. The senator would rise, unburden his soul of cherished views on matters alien to the debate,[1307] and then make his speech conform to the rules of the house by concluding with a formal opinion on the direct issue put before it by the magistrate. In one instance at least we find the method reversed; the great political crime of Carthage’s destruction was prepared by the famous sententia of Cato,[1308] often repeated in speeches on unrelated topics, and having no connexion with the issue that was directly before the house.

To understand the facilities for information and the freedom of debate possessed by the Senate, we must have a clear view of the functions of its presidents and of the position of the ordinary magistrates in that assembly. The right of summons and the right of laying business before the body were inseparable; both were possessed by three orders of magistrates—consuls, praetors, and tribunes. But law, in the shape of the power given by the major potestas, made it impossible for the praetor to exercise his right of summons in defiance of the consul; while custom dictated that even the tribune should not exercise this right when the consul was at Rome. But, once the summons has been issued and obeyed, the convoker of the council is not its only president. The three classes of magistrates have each the right of reference, and each in an order prescribed by customary law. The consuls’ motions come first; they are followed by those of the praetors, and then the tribunes have their turn.[1309] This system of priority, although necessary to prevent confusion, was under ordinary circumstances a matter of comparative unimportance. It could only become a serious hindrance to the freedom of debate if the consul abruptly dismissed the meeting before a decision had been reached on some question of pressing importance,[1310] or if a method of systematic obstruction were adopted by some senator, who wasted the hours with prolix oratory until the setting of the sun made a suspension of business legally necessary. But the former device was revolutionary in its character, and on the occasion of its use a fit preparation for a revolution; while the latter seems to have been employed, as by the younger Cato during Caesar’s consulship, as a weapon against an offensive relatio already before the house.[1311] The president himself had ample powers for meeting such designs; in the case in question the consul had the obstructive stoic haled from the room.[1312]

A more serious danger would have been the absence of information from the officials who succeeded the consul in putting motions before the house; but this was obviated by the power which magistrates had of speaking (verba facere) without invitation at any period of the debate. This power was possessed as an admitted right by those magistrates who were themselves presiding; the quaestors, whose financial statements were indispensable, and the aediles may have exercised it only on sufferance. This privilege was the more necessary as the presiding magistrates at least could not be asked their opinion by the official who held the attention of the house; they could not give advice, for they were themselves seeking it of others.

Custom had determined with equal care the method by which opinions should be elicited from the unofficial and advising members of the house. The question “what is your advice?” (quid censes?) was put by the president to each senator in an order corresponding to his official rank. In the days of the activity of the censorship, it was this magistracy which had determined the president’s first selection; the censors had placed at the head of their list the name of some distinguished man (often himself an ex-censor), and it was this “chief of the Senate” (princeps senatus) whose opinion was first sought. But, after Sulla’s reform in the constitution of the order, there is, in spite of the occasional revival of the censorship, no certain evidence of the perpetuation of this dignity. Henceforth a body of consulates holds the first place, and from these the presiding magistrate—at least the consul who opens the business of the house—chooses his first adviser, according to no settled rules, but with due regard to seniority or personal distinction.[1313] The only exception to this practice was to be found in the latter half of the year, when the consuls elect, either in virtue of their quasi-magisterial position or because they might themselves have to carry out the decrees which were being discussed, took precedence of the consulars.[1314] From the latter the question passed down through the praetorii to the men of aedilician or tribunician rank, and so finally to the lowest grade of all—the ex-quaestors; and it is probable that, in every grade, the rule of consulting a designated magistrate before an ex-magistrate was observed. It is obvious that this procedure, when rigidly adhered to, left the non-curule members of the Senate only an infinitesimal chance of a share in the debate. These had always been known as pedarii, in contradistinction to the curules; originally nominees of the censors, they included after the time of Sulla the former tribunes and plebeian aediles, and the members of quaestorian rank. As they were rarely reached in the debate, they seldom had the opportunity of expressing an opinion, and hence arose the erroneous notion of some antiquarians that the pedarii were given the right of voting but not the power of debate.[1315] But restrictions of this kind, arising from practice and not from law, were never pressed by the Romans. The repute of a man who had not reached curule rank might exceed that of all the other senators; the principle that would open the lips of a Bibulus and close those of a Cato was recognised as mischievous in certain emergencies, and it was the latter who as tribune elect—that is, as a pedarius—moved the resolution which condemned the Catilinarian conspirators to death.[1316]

From the mass of opinions elicited in the course of the debate, the president might choose any that he pleased to submit to the judgment of the house. The safeguard of the individual senator was here found in the number of the presiding magistrates. As a rule the same order was followed in putting sententiae to the vote as had been observed in eliciting them; but out of an aggregate of opinions that, with differences of detail, gave practically the same advice, the president might choose that which he considered most to the point or best worded as the one to be submitted to his council. It was certainly an unusual step when, in the historic debate of December 5 in the year 63 B.C., Cicero put to the vote the sententia of Cato in place of the similar but weaker resolutions of the consulares;[1317] but the consul in this exercise of his discretionary choice was acting well within his rights.

One is sometimes surprised, considering the rigidity of the procedure and the size of the body, at the amount of business that appears to have been transacted at a single meeting of the Senate. But both the rules of procedure and the Roman temperament account for the rapidity of the debate. As regards the former it must be remembered that no motion could be put unless pressed by a magistrate, that there was no distinction between substantive motions and amendments, that alternative proposals, therefore, had not to be submitted in detail to a division, that the carrying of one motion generally swept all sententiae on the same subject aside, that motions for adjournment did not take precedence of other motions, and that the business of the house was not interrupted by this modern device for wasting time. We must also remember that a division in the modern sense of the word was rare, and that it appears seldom to have been necessary to take the numbers of the members who respectively supported or were adverse to a motion.[1318] The estimate of the voting was in fact going on during the debate; it was the custom of the senator, often without rising, to express a few words of assent to a former speech,[1319] and it was not unusual to leave one’s bench and take up a position near the man whose opinion one supported.[1320] The sense of the house could thus often be taken before the debate had ended; where it was not obvious the consul urged to a division (discessio);[1321] even then it is improbable that recourse was had to counting, unless the parties on either side were very evenly balanced. Other reasons for rapidity were to be found in the Roman temperament and in the intellectual atmosphere of the house. The Roman, until his better nature was corrupted by the schools of Athens and Rhodes, was a man of few words; the Senate was the least likely body in the world to be swayed by florid eloquence; clearness and brevity were the qualities most in demand, and even at the close of the Republic, when the Senate had surrendered itself to the perilous pleasure of listening to carefully woven sentences, the “paint pots” of Cicero[1322] were still in all probability the exception and not the rule.

The voice of the majority of the Senate was embodied in a resolution (senatus consultum). Considered as the mere advice of the magistrates’ council it had no legal validity whatever; its binding character sprang from the fact that it was a decree of the magistrate applying to a sphere in which he was himself competent to issue such injunctions. Hence, as we have seen,[1323] the veto pronounced on a decree of the Senate by the colleague or superior of the magistrate who has elicited it, is no exception to the rule that the acts of corporations or of private individuals were not subject to this form of invalidation. So little was this the case that, when the decree had been vetoed, the advice of the Senate still remained unimpaired. The annulled resolution was still drawn up, but it had become an auctoritas merely.[1324] It was still of sufficient potency to bind constitutionally-minded magistrates, but it no longer imposed the duty of obeying it on the community. The consultum or auctoritas was drawn up at the place of meeting soon after the resolution which it embodied had been passed. As there were no permanent officials of a responsible character to see to its redaction, a small committee was appointed by the president to attest the genuineness of the document;[1325] this consisted usually of the author of the resolution and of some of his supporters.

(iii.) The Senate exerted its developed authority under two different aspects. It was the body which exercised the power of previous deliberation on matters which must be submitted to the judgment of a nominally higher authority, the people, and it was a council which professed to give final directions to the magistrates on the conduct of their administrative duties. It possessed no sphere of its own in which it could act unassisted by magistrates and people, and thus its formal independence is far less than that possessed by such a body as the Athenian Boulê. The only department of state in which it seems to have independent authority—the power of perpetuating the very life of the civitas by the appointment of an interrex—belongs strictly not to the Senate but to its patrician members; and even for the exercise of this right during the Republic the motive power had to spring ultimately from a magistrate of the Plebs.[1326]

The Senate by exercising a probouleutic authority showed its sense of its own limitations. Occasionally, as we shall see, it usurped isolated powers that belonged of right to the people; but as a rule its final authority was only felt in that vast sphere of executive influence that had been formerly entrusted to the magistrates. It could control, but it might not usurp, the sovereign powers of the people; it elected no magistrates; it possessed no legislative authority; it could not declare war or make peace; it dared not extend the limits of Roman citizenship by the conferment of the franchise; it made no claim to the exercise of jurisdiction or of the still more sovereign right of pardon.

Yet, when it is remembered that the activity of the comitia in all these matters could only be set in motion by the magistrate, and that the Senate’s advice had grown into a real power of control, it is easy to see that the first step in every measure of importance must come under the cognisance of this all-pervading council. Its probouleutic authority was based on the observance by the magistrate of certain unwritten rules, which regulated the exercise both of his positive and of his negative powers. It was held that no magistrate should question the people on any important matter without the Senate’s advice, and that he should not decline to exercise this power at its request; that the power of veto should be employed only at the discretion of the council, and that the request for its exercise should not be refused. These unwritten principles were, as a rule, strong enough to fetter a magistrate’s action by his conviction of their necessity; when this conviction was not sufficiently strong, the Senate resorted to its last constitutional weapon, the veto of a friendly magistrate. For this purpose the tribunician college was usually employed; its size offered the largest scope for differences of opinion, for of the ten legally supreme magistrates of the state one at least could generally be found to whom the Senate’s word was law. The blocking of legislation through the intercessio of a senatorial tribune may be illustrated by the attempt of Octavius to negative the agrarian legislation of the elder Gracchus:[1327] the effort to annul an administrative order of a sweeping kind by the veto pronounced against the proposal of the praetor Juventius when, without consultation of the Senate and without previous intimation to the consuls, he attempted to urge the comitia of the people into a declaration of war with Rhodes.[1328]

In dealing with the powers of the Senate two courses lie open before us; we may either treat them in the order of their growth and show how the successive usurpations were effected, or we may describe them as they existed in their developed form. The first method would have more of an historical interest, but, apart from its difficulty and obscurity due to the frequent lack of evidence, it would result in a wholly unsystematic classification of the aggregate of acquired rights. It is preferable, therefore, to deal with the Senate’s powers in their developed form, with a preliminary warning that they were gained at very lengthy intervals and by very different means. Some, such as the control of finance, were usurped from the magistrate; others, such as the dispensation from laws, were stolen from the people; to others again, such as the control of the details of provincial government, the Senate had an altogether peculiar right, such powers being created during the period of the growth of its ascendency.

With the election of magistrates the Senate of the later Republic had no direct concern, and the people alone claimed the perhaps not wholly constitutional right of deposing them. But towards the close of its tenure of power, when the struggle for existence caused it to strain its prerogatives to the utmost limit, we find the Senate claiming the very analogous right of suspending a magistrate from the exercise of the functions of his office. A charge of turbulent proceedings was the motive for the suspension of Caesar from the praetorship, and of Metellus Nepos from the tribunate in 62,[1329] and Caelius Rufus was ejected, on the allegation of similar misconduct, from the curule chair of the praetor in 48.[1330] The use of this power against the praetor, or indeed against any magistrate subject to the major potestas of the tribune, is comprehensible; for the latter might, at the bidding of the Senate, inhibit any official from the exercise of his customary functions; how the power could be employed against the tribunate itself is one of the hidden mysteries of senatorial usurpation.

The power of legislating, that is of establishing fundamental changes in civic relations, was never claimed by the Senate; nor had it ever possessed any legal right to suggest or impede the making of a law. The patrum auctoritas, like the interregnum, had resided only with the patrician members of that body; and the power of previous deliberation claimed by the later Senate as a whole was merely one of the inevitable results of the balance of power within the magistracy. Such slight approximations to law-making as are found were simply the result of consultation by the magistrates on questionable points. The Senate reaffirmed an ancient principle that the confession of a slave which might doom his master to death or exile should not be wrung from him by torture;[1331] it might even infringe so much on the freedom of contract as to suggest a current rate of interest[1332]—a principle which the praetor might respect if he cared or if his colleague obliged him to do so.

But here again we meet with the strange anomaly that the Senate can destroy where it cannot create. It claimed the sovereign privilege of exempting individuals from the operation of the laws, and the claim which was an admitted usurpation was sanctioned by custom. Formerly the sovereign people could alone grant such dispensations, but the motion submitted to the people was first approved by the Senate. Very gradually the second stage in the proceedings was dropped, for it was considered the merely formal sanction of an already accomplished act; and the senatorial right of dispensation was assured until it was attacked by the tribune Cornelius (67 B.C.). The proposal that it should be restored to the people was successfully resisted, but a compromise was arrived at by which it was agreed that no act of dispensation should be valid which had not been approved by a house of at least two hundred members.[1333] This provision, evidently meant to prevent the abuse of the power for purely personal or party ends, did not fulfil its purpose, for senatus consulta of this kind were gained by influential men on the slightest pretexts and for the most unworthy objects.[1334]

An observance of certain forms had always been necessary for the legislative activity of the people to be regular and valid. In countries which recognise the sovereignty of parliament, the guardian of such forms is in the first instance the legislative chamber itself, in the second the courts of justice, which can, or should, be allowed to refuse to put into effect any law that has been passed in disregard of such formalities. This was the case at Rome. The laws themselves contained clauses which pronounced their ineffectiveness in case they should be found to violate the principles of the constitution, and the courts of justice had the courage to resist the enactments even of the provisional government of the dictator Sulla. But the executive authority might also have doubts about the propriety of putting into force a measure which it recognised to be irregular; and of this executive authority the Senate was the guide. Hence its well-established claim to point out a flaw in a legislative enactment, to establish the fact that the magistrate had questioned the people improperly, and that the answer of the people was therefore null and void. The exercise of this revising power once led to the greatest upheaval that Roman history records. It was by pointing out that the law of the younger Livius Drusus, which contained amongst its other clauses the gift of civitas to the allies, was irregular as contravening the condition fixed by a lex Caecilia Didia (98 B.C.) that wholly different enactments should not be contained in the same rogatio,[1335] that the Senate brought to a head the formidable conspiracy which culminated in the outbreak of the social war. History also brings to our notice the attempted reversal by this means of a popular judgment of a far smaller kind. It was suggested in the Senate that a notice of the alleged irregularities of Clodius’ plebiscitum should be made the ground of Cicero’s recall; but the exiled orator, while thinking that there was “something in the notion,” yet preferred the far safer form of an abrogation of the enactment by the popular voice itself.[1336]

When we turn from legislation to its complement of jurisdiction we find little direct interference by the Senate with the regular course of either civil or criminal procedure. On exceptional occasions it might decide the sphere of the praetor’s activity,[1337] and by its practical weight in the declaration of a justitium it might suspend the operation of the business of the courts; but it did not interfere in the details of such business, and the appeals to the vetoing magistrates were left to their own discretion.

With respect to the criminal jurisdiction of the regular courts, although the Senate never assumed a faculty for determining the procedure or the sentence, it sometimes took the initiative in a prosecution by suggesting that a charge should be brought, and this implication might be contained in a senatorial judgment that a certain course of action was contra rem publicam.[1338] With respect to an extraordinary commission, the true theory of the Republic was that it could be established only by the people. The procedure adopted against Clodius for the violation of the rites of the Bona Dea is typical of the constitutional method that should always have been employed. The offence which he had committed—though vaguely designated “incest”—was one that in that particular form was unknown to Roman law. First the college of pontiffs is consulted, and pronounces the act an offence against religion (nefas); then a decree of the Senate is framed specifying the crime and the procedure, which is modelled as closely as possible on that of the ordinary criminal courts. This decree is then submitted for ratification to the judgment of the people.[1339] Acts of attainder are a lamentable confession of weakness in a political, social, and legal system; but it was right that this weakness should not be remedied by an administrative authority representing a single caste.

But there were certain emergencies which it was thought could not be met, even by the establishment of a special judicial commission. Epidemics of crime, such as poisoning, arson, murder, seemed to demand the immediate exercise of the magistrate’s imperium, and for this exercise the Senate is the directing and controlling force. Such an exercise of magisterial coercitio at the behest of the Senate is practically a declaration of martial law, although the Senate by its decree does not create a new power, but simply urges the magistrate to set free the forces latent in his imperium. The earlier Republic had provided a suspension of constitutional procedure in the form of the dictatorship as a means of meeting such an emergency; the later constitution had no such provision, and the burden of responsibility fell on the joint shoulders of Senate and magistrates. Whether the exercise of such summary capital jurisdiction was legal depended on the status and sex of the victims. If the 170 women put to death for poisoning in 331 B.C.[1340] were executed by magisterial decree, the act was legal, for women had no right of appeal. Similar legality attended its exercise over provincials;[1341] and, if similar sentences were inflicted on Italian allies,[1342] it was a gross violation of treaty obligations, but not of the laws of Rome. The male citizen alone might not be put to death in this summary fashion; and if the Roman members of the great criminal society of the Bacchanalian guild were executed without appeal,[1343] this was a judicial murder only justified by the horror excited in the public mind by the blackest crimes masquerading under the guise of religion. We still possess a fragmentary copy of the decree by which this “conspiracy” was repressed; in it the Senate thinks that “capital punishment should be inflicted,”[1344] but the decree does not by its wording suspend the ordinary laws of appeal.

This guardianship of the state against conspiracies (conjurationes) may have been the precedent for a power, the legality of which, as exercised by the Senate during the last century of the Republic, was hotly contested. This was the power of declaring the existence of a condition of things which the Greeks would have denominated στάσις, of singling out a party in the state and its leaders as enemies (hostes) to the Republic, the latter being professedly represented by the Senate itself and the magistrates who happened to be friendly to it, and of advising the magistrates who were its presidents, above all the magistrates with imperium, and sometimes even the pro-magistrates,[1345] to employ every means of summary coercion to ward off the impending danger. The formula for thus entrusting the guardianship of the community to a clique of friendly magistrates was expressed in the words “that the consuls, praetors, and tribunes of the Plebs (with the addition at times of other officials with the imperium) should see that the state took no harm.”[1346] After the passing of this decree the responsibility of the Senate ceases; the magistrates act at their own peril and cannot again devolve any responsibility for a judicial murder they may have committed in the execution of their instructions by again consulting the Senate on the guilt of their victims or on the method of execution to be employed.[1347] There were obvious reasons which rendered it impossible for this power to be based on any distant precedent; like the power last discussed it was a substitute for the vanished dictatorship, which was an integral part of the constitution, and subsequently to the decline of this office there was no revolution in Rome antecedent to that which was held by conservatives to have been inaugurated by the legislation of the Gracchi. But, even apart from the question of precedent, the absurdity of the Senate’s claim to be guardian of the Republic is manifested by the fact that the opposite party in the stasis might more truly represent the theory of the constitution, as the Gracchan party did, than the Senate’s government itself; a broad line separates political opposition, even with the utmost force to back it, from criminal conspiracy against society, and by the passing of this “ultimate decree” the Senate declared itself the author of a revolution. The controversy as to right is here insoluble: the insolubility depends on the fact that there was no permanent government at Rome except that of convention and of force.

Yet Roman sentiment would have declared that there were times when the decree and its consequences were justified. Force can only be met by force, and a gathering such as Catiline’s army in Etruria was a fair object of attack by the executive authorities; but sentiment would not have allowed the execution without appeal of a few prisoners captured within the city, however grave the danger. A state of war must be recognised, but there was no power in the Roman state that could declare martial law and execute its consequences.

The exercise of this unprecedented power evoked a vigorous protest from the true government, the people.[1348] The plebiscite passed by the younger Gracchus was aimed more directly at the magistrates, and it improved on the Valerian laws by enacting “that no judicium should be exercised on the caput of a Roman citizen without the consent of the people.”[1349] But it is possible that it made senators individually responsible for the decree authorising such conduct on the part of the magistrates,[1350] and it is almost certain that it abrogated a clause in the law of the Twelve Tables by declaring that the Plebs might exercise capital jurisdiction against a magistrate guilty of violating the provisions of the measure.[1351] Henceforth there could be no question of the illegality of the ultimum senatus consultum, for Cicero’s quibble that the Gracchan law only protected the lives of cives, and that individuals specified by the Senate had been declared hostes,[1352] is an argument in a circle. It is this latter possibility which the Gracchan law denied; and though common sense might interpret certain overt acts as a sign of war against society, no degree of treason could ipso jure make a citizen into an enemy unless that treason had been proved in a court of law.

More justifiable than the power which we have just considered was the police-control which the Senate exercised in Rome. Here, as in other matters of administration, its attention was confined to great and exceptional emergencies. In the absence of all facilities for the expression of public opinion in Rome, except through the medium of a magistrate, the ancient trade guilds (collegia artificum) formed convenient centres for electioneering in the democratic interest. The fact that towards the close of the Republic their weight was thrown into the anti-senatorial scale led the government to regard their existence as inimical to public order. A decree of the Senate of the year 64 B.C. summarily dissolved all but the most venerable guilds which were supposed to derive their origin from Numa;[1353] and this sudden suppression may be regarded as a last step in a long career of administrative interference, no record of which has been preserved by history. Private political clubs, on the other hand, such as were known by the names of sodalitates and decuriati, did not come under the immediate cognisance of the magistrate; for their coercion the Senate had to procure the passing of a law.[1354] But minor details connected with bribery and corruption were within its competence. It infringed the inviolability of the magistrate’s house by allowing search to be made there for incriminating proof of corruption, and it directed that whoever should be guilty of harbouring professional election agents (divisores) at his dwelling should be liable to a vote of censure and possible prosecution.[1355]

If we now turn from the corrective to the administrative activity of the Senate, we shall find that this was exhibited chiefly in the departments of foreign relations, finance, and religion.

The primary spheres of foreign activity are the declaration of war, the making of peace, and the framing of alliances. All these powers belonged of right to the people, and, as regards the first, there was never any question that the Senate’s position was merely that of a constant adviser. The two latter powers merge into one another, for a state that was not on some terms of alliance with Rome was, according to the rude notions of the prevailing international law, an enemy of the Republic. There appear at intervals during the Republic signs of a keen but advantageous controversy as to whether the right to conclude binding treaties in the name of the Republic was possessed by the imperator in the field, as well as by Senate and people. To profit by the oath of a general when it entailed success, to disavow it when it meant failure, and in this case to hand the unfortunate commander, who had saved Roman lives but not Roman honour, bound and naked as a scapegoat to the enemy, were the convenient results of this condition of juristic doubt. The Caudine Forks in Samnium, Numantia in Spain, and the neighbourhood of Suthul in Numidia saw Roman generals and their deluded adversaries equal victims of this controversy.[1356] But the opinion finally prevailed that without the consent of the Senate and the people no sworn treaty (foedus) could be binding.[1357] The practice as to the division of this authority between the council and the assembly varied from time to time. In the earliest period a treaty of peace seems to be within the competence of the magistrate, and therefore of the Senate; in the constitution of the middle Republic, as revealed to us by Polybius, such an agreement is always submitted to the people for ratification,[1358] but the close of Republican history shows cases where the Senate alone is mentioned as the deciding authority.[1359]

But the people had at all times merely the final ratifying authority in these matters. The diplomatic negotiations that preceded the conclusion of an agreement with a foreign nation had ever been in the hands of the Senate. When envoys approached an imperator in the field, his duty was to send them on to the consuls and their council; how far he himself entered into preliminary negotiations with them depended on his own discretion, but in the best days of the Republic he could make no definite agreement. The mode in which the Senate received the envoys from a state differed according as the community had already treaty relations with Rome, or was in a state of natural war. The permanent representation of a friendly nation—except through the vague relationship with a noble Roman house—was a device as yet unknown; but the concession was made to the envoys of such a state of receiving them within the town.[1360] The representatives of the enemy, on the other hand, had no claim to reception within the walls.[1361] The embarrassment inspired by the approach of the suspected Eumenes of Pergamus in 166 B.C. caused a passing regulation to be framed that no kings (the “carnivorous animals” of Cato) should be received at Rome in person.[1362] Towards the close of the Republican period (67 B.C.) a demand for the better ordering of business, as well as the suspicion created by the dealings of envoys lingering in Rome with the political coteries, caused a law to be passed that the month of February should be devoted to the reception of legations.[1363] As most of the envoys at this time came from states within the Roman sphere of influence, it was an advantage to the provincials to have a definite season set apart in which they could air their grievances.

The most pressing demand for entering into new relations with states naturally accompanied the organisation of a province. For the immediate attention to this demand the conquering general was competent, although he was sometimes assisted by ten commissioners (legati) appointed by the Senate.[1364] The whole work of organisation, known as the law of the province (lex provinciae), bore the name of the imperator, and the lex Rupilia of Sicily, the lex Pompeia of Bithynia, and the law of Metellus in Crete preserved the memory of individual victors and organisers. The lex in this case is a charter (lex data), not a comitial act (lex rogata), and when we remember that the organisation of the provinces took place during the period of senatorial ascendency, we are not surprised at the omission of the formality of the consultation of the people.

The assignment of external spheres of rule (provinciae) to magistrates was one of the most important powers connected with the senatorial administration of the provinces. We have already seen how the original theory that a magistrate chose his department gave way to senatorial selection. In spite of the fact that the provinces were not assigned to specified individuals, but to holders of certain offices, this right of bestowal put great patronage in the hands of the Senate; it might reward or punish consuls or proconsuls by the assignment of more or less important districts,[1365] and the lot (sortitio) by which the individual holders were determined was often tampered with.[1366]

The final organisation of Italy and the provinces also gave fresh spheres of influence to the Senate. The free cities, which extended over the whole of Italy, and were found as privileged units in the provinces, were subject to its controlling power. These had given up all claim to the exercise of external authority, and it was the Senate that adjusted the conflicting claims of states both within and without the bounds of Italy.[1367] When the rights of a free city were held, not by treaty, but by a precarious charter, the Senate might cancel certain grants, which, by the terms of the charter, were revocable at pleasure.[1368] In the details of provincial government and the relations of the subject cities to the governor the Senate seems seldom to have interfered directly. But we must remember that in every province the governor was accompanied by a senatorial committee in the form of a consilium composed of his legates and of any senator who happened to be in the province.[1369] It was his duty to refer every important matter to this council, and the most important questions it bade him reserve for the judgment of the Senate at home.[1370]

The power of the purse, which has been the guarantee of so many popular liberties, was not possessed by the people at Rome. By escaping so early the incidence of direct taxation they lost a formidable weapon with which they might have fought the Senate. For this reason the admitted incapacity of the latter body to impose a new tax on the community was no great limitation to its powers after the year 167 B.C., when the Italian tributum disappeared.[1371] The control of the details of finance, which had never belonged to the people but always to the executive, was the mainstay of its power in this department. The circumstance that the control of estimates had been given to occasional officials, the censors, and that the details of expenditure had been taken from the hands of the consuls and placed in those of the most subordinate of all magistrates, the quaestors, sufficiently explains the growth of a central directing authority, which may be considered in its three relations to the property of the state, the estimates, and the expenditure.

The chief property of the state in the later Republic was the income derived from the provinces, and it is obvious that the Senate determined its amount when it ratified the terms of the lex provinciae. But the older source of revenue—the public domains of the state—was also subject to its control. It granted the occupation or the use of public lands and decreed their alienation by sale or gift.[1372] It also accepted or rejected gifts and bequests to the state, and the proposal of Ti. Gracchus that the people should deal with the movable property left by Attalus III., king of Pergamus,[1373] struck at one of the most undisputed of senatorial prerogatives.

The most important estimates of those items of revenue and expenditure which varied from time to time were, as we have seen,[1374] made every five years by the censors. But the Senate exercised the right of directing, even of reversing, the arrangements made by these officials; the appeal against an oppressive contract was made to them,[1375] and during the vacancy in the censorship they designated the magistrates who were to preside over new financial assignments.[1376]

The control over the treasury, both in the voting of large supplies or in detailed expenditure for definite purposes, was complete. The provincial budget, comprising the allowances for the different governors, was voted by the Senate, and this senatus consultum de provinciis ornandis[1377] was one of its most effective means of controlling the magistracy. The special sums voted for military or any other purposes were either directly paid[1378] or credited by the quaestors to the commanders abroad or to the home officials.[1379] We have already seen that it was only the consul who could order the quaestors to pay without a permit from the Senate;[1380] but, as the consul after the time of Sulla rarely took the field, the Senate’s control of expenditure was finally uninterrupted even by this survival.

If we pass from the most material to the most spiritual element in human life, we find this also directed to a certain extent by the Senate. Although religion in its various departments was under the control of special guilds, yet these colleges possessed little power of initiative, and an executive authority was necessary to carry out their will. The announcement of prodigies was met by the Senate with forms of expiation suggested by the priestly colleges. In the Sibylline books above all answers might be discovered whose political was even greater than their religious import. When the dangerous annexation of Egypt could be staved off by a few lines on these mysterious leaves,[1381] it is no wonder that their own guardians, the decemviri, scarcely dared to unfold them without the authorisation of the Senate. The activity of the comitia was sometimes hampered by the Senate’s habit of decreeing extraordinary festivals (feriae),[1382] while the successful general was dependent on its will for the duration of the thanksgivings (supplicationes) which followed his victory.[1383] The reception of a new god into the Roman Pantheon was probably in strict law a popular right,[1384] but it is one that seems to have been tacitly conceded to the Senate.[1385]

Chapter VII

THE INTERNATIONAL RELATIONS OF ROME AND THE INCORPORATION OF ITALY

The peoples of Greece and Italy offer, amidst many general points of similarity, some striking differences in their conceptions of international relations. The pan-Hellenic sentiment, which created a shadowy law of nations, has no pan-Italic counterpart. Outside the Greek city-state there was but the sentiment of nationality to create rules for human conduct; but, for this very reason, the rules, when created, were of pan-Hellenic validity. In Italy we get narrower but closer groupings; its history is the history of leagues, and the inevitable result of this more concentrated life was a closeness of international ties between the federated members which stood in marked contrast to the vagueness of the relations between the isolated groups.

The ties of religion and of ethnic affinity, as expressed in an obvious similarity of institutions, were, in Italy as elsewhere, the strongest connecting forces between states; but in Italy they were but the first rude ligaments that gave place to a stronger political bond and that crumbled to pieces when the more enduring chain had been forged. The festival of the Alban Mount became to the Latins, as the sacred centre of Volsinii to the Etruscans, but the religious symbol of a lasting league. Beyond the limits of the league the national and religious sentiment was weak. There was no Delphi to direct the Italian peoples, and no Olympia at which they might meet.

This isolated grouping of the Italian peoples may have been partly due to the great mixture of the populations of Italy south of the Alps and south even of the Apennines; but the earliest Italian history reveals the fact that even the closely-related races of Latins, Umbrians, and Sabellians were not connected by much closer ties of an international character than those which bound each to the Etruscan, the Iapygian, the Gaul, and the Greek. It is true that with the progress of time something like an ethnic sentiment was created in the purely Italian group, with vast consequences to the history of the world. After the Umbrian power, which had once extended from sea to sea, had been weakened, on the left by the Etruscan, on the right by the Celt, Rome becomes the great frontier power, the bulwark of the group of blood-related nations against the foreign-speaking Tuscan and the Gaul whose kinship with herself she had forgotten; but the relation soon became political, and, therefore, more than international. That aggregation of vague human sentiments, which is called International Law, was not juristically stronger within the sphere of the blood-related than it was within the sphere of the Italian group of peoples.

Within this wider sphere of humanity, that was not yet “Italian,” there are traces of the observance by Rome of customs relating to the conduct of war and to negotiations for procuring peace—customs which by their very existence show that, though the early Roman employed the same word to designate the stranger and the enemy, a state of war was not considered as the permanent relation even between hostes; which prove, by their elaboration, the antiquity of some sense of international obligation, and which exhibit, by the constancy with which they were applied, the existence of reciprocal forms and duties owed by the hostile state to Rome. The functions of the Fetiales, the priestly ambassadors (oratores)[1386] who demand reparation, declare war and ratify a peace, seem never to have been confined to those peoples with whom Rome had treaty relations, but to have been extended to any nation which had not by specific acts waged war on Rome. Four of the priestly guild of Fetiales were appointed to seek redress. These elected one of their number to become their representative, to be for the time the “ratifying father of the Roman people” (pater patratus populi Romani). At the borders of the offending tribe the pater with many imprecations called Jupiter to witness that the grievance was established, the demand reasonable. Three times did he make the same appeal—to the first sojourner he met in the stranger’s territory, to the sentinel at the gate, and to the magistrate within the walls. Thirty days were allowed for the reply; on the first of these the standard was hoisted on the citadel of Rome, and the burgess army gathered for the threatening war. If an appeasing answer were not returned within these days of grace, the pater again set forth and launched a charred spear (the prehistoric weapon of hardened wood) into the territory of the offender, with words setting forth the menace of war.[1387] When the struggle was over it was he who struck the peace and the sacrificial victim with a flint-stone which symbolised the watchful Jupiter (Jupiter lapis).[1388] The sanctity of envoys, other than these priestly messengers, was as rigorously observed in the Italian as in the Greek world. A violent death on an embassy was a martyrdom deserving of immortality, and the ancient Rostra in the Comitium showed a group of statues erected to those who had met their fate in the cause of peace.[1389] The neutrality of ambassadors was exacted with equal care, and the disaster of the Allia might be looked on as a retribution for the impious precipitancy of the Fabii who, forgetting their sacred character, fought in the ranks of Clusium against the Celtic hordes.[1390]

In the agreements made by generals and envoys with a foreign people, the idea, common to most primitive minds, that it is the oath which makes the promise binding is strikingly present. We have already touched on the vast constitutional import of this conception in its connexion with the question, posed but never completely answered by the too patriotic jurists: “Who could take the oath on behalf of the Roman people?” But the theory which on the whole prevailed, that it could not be taken by a general in the field, not only nullified the promise so made and rendered it a mere agreement (sponsio), valid between citizens but not between strangers, but exposed the rash swearer to the extremest penalties. With a strange inconsistency of judgment it was held that the oath, which was no oath, laid the guilt of perjury on the conscience of the people, unless the man who had caused the people unwittingly to sin was offered up as an atoning sacrifice. Naked and bound, like the sacrificial human victim of prehistoric times prepared for the altar, the imperator was surrendered to the offended people. It is not surprising that the latter—whether Samnites, Spaniards, or Numidians[1391]—refused to take the worthless gift from the hands of the pater patratus, and preferred to continue the conflict with a people still convicted of sin. The individual oath to return, made by a prisoner of war released on parole, though binding on his soul alone and, as a religious obligation, not punishable by the civil arm, was enforced by the public conscience. One—others said more than one—of the Roman captives sent by Hannibal after Cannae to negotiate an exchange of prisoners declined to return on the negotiations falling through. The pretext was that they had revisited the camp of the conqueror after the oath had been taken. Tradition varied as to the punishment imposed by Rome; some spoke of a summary arrest and enforced return to the Phoenician camp, others of a degradation by the censor and of a public detestation that drove the perjurer to suicide.[1392]

Such are some of the isolated specimens that have been handed down to us of rules of international right which Rome thought due to every nation. But, apart from such universal duties, the Roman mind, with its simple dichotomy of the world into enemies (hostes)[1393] and friends (amici), recognised varying degrees of obligation as due to either class. The hostes were all states or individuals with whom Rome had no treaty relations. With these there was no presupposition even of constant diplomatic relations, and their absence was symbolised by the manner in which envoys from such states were received. The tradition of “speaking with one’s enemy in the gate” was rigorously preserved to the end of the Republic, and the Senate had to meet a messenger from the enemy outside the walls.[1394] The friends of Rome were those with whom she had any relations that approximated to a federative character. There might be no definite treaty, no specified interchange of obligations; but the vague term amicitia with kindred titles of affection was applied to the vaguest association as well as to the closest alliance with Rome; it was indifferently a symbol of the greatest independence or of the practical subjection of the contracting state. The members of the military symmachy in Italy could share this title with distant Carthage,[1395] and even the barbarous Aedui are “kinsmen and brothers” of the Roman people.[1396] Even in the case of these communities the perpetual representation of mutual interests by means of permanent ambassadors—an institution still in its infancy in the seventeenth century of our era—was naturally unknown; but their recognition as friends granted their envoys or representatives an entrance and an audience of the Senate within the walls.[1397]

Closer relations between Rome and her “friends” were generally conditioned by ethnic and their corresponding religious ties. But the foreign element in early Rome shows that this was not universally the case. The rape of the Sabine women in its least significance reveals the fact of the close tie of intermarriage between Rome and a non-Latin community; the first treaty with Carthage reveals commercial relations, which were accompanied by some form of international jurisdiction, with a Phoenician power.[1398]

The first, because the most universal, ties which attract our attention as based on treaty relations are those of commerce. Commercial treaties with the foreigner led, in the very infancy of Roman history, to the development both of common courts and of a common code.

In the later Republic and in the Empire we have frequent mention of a civil court which was believed to have had an international origin. Attempts have been made to assign to this court of recuperatores a purely Roman source;[1399] but its essential peculiarities—the large uneven number of jurors, three or five, when the ordinary civil courts knew but one; the rapidity and simplicity of the procedure; the formula framed by a magistrate and not taken from the legis actiones of the civil law—are best explained as survivals of a time when it was a mixed court of international jurisdiction.[1400] The two or four jurors probably represented the contracting states in equal proportions, the third or fifth may have been an arbitrator chosen from another community; the magistrate who gave the formula would have been an official of the town in which the mixed court sat.

But the formula implied a system of legal principles, and these could not easily be furnished by the civil law (jus civile) of each contracting state. It was not Roman pride that prevented the foreigner from participating in her native law; it was the unwillingness of the foreigner to be made subject to a code characterised by excessive cumbrousness, by danger and by delay, and the counter-objection of the Roman to be the victim of similar disadvantages in the contracting state. No merchant, to whom time meant money, would adopt the cumbrous form of conveyance known as the mancipatio, when ownership could be acquired by the simple transfer (traditio) known of all nations; none would care to repeat a formula (to be learnt only of the Roman pontiff), the least error in the utterance of which was sufficient to extinguish his claim; and the symbolic acts performed before the praetor, though possibly dear to the Roman mind, could not have been attractive to the foreigner. Convenience dictated a compromise, and this was found in the gradual collection of a body of rights (jus) from the customs of “the world” (gentes) as known to the Romans. This jus gentium, or body of rights possessed by man as a citizen of the world, was a code of private international law, and it cannot be regarded as being even purely Italian. A nation that borrowed its alphabet from a Chalcidian city, that imitated the military organisation of the Hellenes, that traded in the sixth century with Sicily, Sardinia, Libya and Carthage, must have been deeply imbued with the customs of the Greek and Phoenician world. Nor was this code a growth of Rome’s supremacy, for her commercial preceded her political greatness. Its origin dates back to a time probably anterior to the Republic, certainly far earlier than the institution of the praetorship. We have already noticed how for more than a century the same civil judge administered both laws, that of the state and that of the gentes,[1401] and how the jus civile was insensibly modified by contact with its younger relative.

But closer relations than those of commerce might exist between Rome and states connected with her by neighbourhood or kindred. The interchange of the rights of private law, of ownership and of marriage, which the Greeks called ἰσοπολιτεία, was a natural out-growth of the Italian tendency to close political association. Such communion rendered each member of the contracting states in private law a civis of the other; the conubium carried with it the patria potestas and all the family rights that flowed from this power; the commercium allowed the citizen of the contracting state to own Roman land, to convey property by Roman forms, to make a contract by the ceremonial of the sponsio, to inherit from a Roman or to make a Roman his heir, while it gave the citizen of Rome corresponding rights in the alien city. There could be no question here of mixed tribunals or of private international law. The courts of each state were fully competent; if we may judge from the early relations of Rome with the Latin cities, the place in which the contract had been concluded, or, in other words, the forms of the contract, determined the competence of the court.[1402]

Still more definite bonds of union than these relations of private law (although often their primary condition) were certain political creations which made the ties between the states something more than international. It was a nucleus approaching a federal government which gave the first impulse to the extension of Roman power in Italy. Rome, as known to us in legend, is never quite a city-state. She is an offshoot of Alba Longa, the titular head of the Latin league. Tradition says that her conquest of her mother city led to her occupying a singular position with respect to the thirty cities of this league. She was one of the contracting parties, the cities were the other; she was the equal, not the member, of the group. The acceptance of this position by the confederate cities shows their eagerness for the protection of the frontier town; but the protectorate became burdensome, a war ensued, and Roman rule was shaken off only to be reimposed on firmer lines by the strong hand of the Etruscan dynasty represented by the Tarquins. Rome now became one at least of the religious centres of the league, and the Diana of the Aventine symbolised the lasting union of the Latin folk.[1403] The expulsion of the kings, while it stripped Rome of territory, shook for a time the allegiance of the league, and it was not until 493 B.C. that the old conditions were renewed; for the details that might in historical times be read in the treaty attributed to Sp. Cassius were doubtless but a replica of the old terms of the alliance. Eternal peace was enjoined, mutual support was to be given in war, and each contracting party was to share equally in the booty. The supreme command in war was to be held now by the Roman general, now by the commander of the confederate forces.[1404] But the closest bond was that of ἰσοπολιτεία,[1405] the mutual participation in commercium and doubtless also in conubium, which was accompanied by the proviso that the court of the state, in which the contract had been concluded and the case was therefore tried, should give speedy satisfaction to the claimant from each community.[1406] Reciprocity such as this was naturally accompanied by freedom in choice of domicile. The Roman settled in the Latin city and the Latin in the Roman retained the private rights of both communities. It is doubtful whether at this period the transference of residence was accompanied by a share in the voting rights of the state in which the immigrant sojourned.[1407]

To this association a third factor was soon added in the Hernican league.[1408] The extension of the confederation beyond its ethnic limits was a grand strategic move; for by the inclusion of the Hernici, Rome now presented a compact chain of fortresses against her enemies of the east and south, the Aequi and the Volsci. Their military importance explains why the newly admitted members were raised to the level of the older allies. They boasted the same reciprocity of private rights with Rome, they shared in a third part of the spoils of war, and they joined with Romans and Latins in the work of common colonisation.

This colonisation was at once a military and social measure, and the means by which the league extended its geographical and political limits. The custom of war, which permitted the Italian tribes to annex a third of all conquered land, had ever been used as a means of expansion by the powerful league. And this expansion was a very real one; for the Latin colonies (coloniae Latinae), as they were called, were full members of the society that gave them birth. Such towns as Suessa Pometia, Cora, and Velitrae had been military outposts in the territory of the Volsci; and now the Volscian, the Rutulian, and even the Etruscan were oppressed with the weight of new foundations by the three great powers. But the year 384 seems to mark a strange and unaccountable break in the history of this extension. Of all the Latin colonies founded after that date, but one is mentioned as a member of the confederacy—a circumstance which has led to the conclusion that Rome (whether with or without the consent of the other members) had cut off all future joint foundations from the religious and federal privileges of the league. Otherwise the consequences of this exclusion were not great; the new towns were military allies of the league, not of Rome, and their citizens still possessed those private rights which always remained of the essence of latinitas. Forty-seven cities—partly old Latin towns, partly Latin colonies earlier than 384—still participated in the Latin festival; that within this circle a distinction was drawn between thirty voting and seventeen not-voting members is an insecure conclusion based on the attempts of the annalists to reconstruct the traditional number of thirty Latin cities; there may still have been thirty votes, but these may well have been distributed in some way over the forty-seven cities of the league. That the closing of the Latin confederacy was due mainly to Roman pressure is perhaps shown by the series of dangerous revolts amongst its cities, which often sided with their ancient enemies the Volsci. The Hernicans were as eager to shake off the yoke; but Rome emerged from both crises with her power strengthened and her commonwealth enlarged. The latter result was due to a renewed employment of her old device of absorption. Tusculum in 381, and Satricum not long afterwards, had their commonwealths destroyed, and were forced, as a penal measure, to accept the full or partial Roman citizenship.[1409] At the close of the struggle in 358 the leagues were renewed and the relations of Rome with the two groups of states remodelled, probably on harder terms. In the Samnite war which followed, the Latin cities first clung to Rome, for they preferred a native to a Sabellian hegemony; but Rome’s rapid conclusion of a treaty of peace and alliance with the Samnites, which the league was asked to accept and not to ratify, was taken as the final proof of actual subjection concealed under the name of a hegemony. The Latins made their last demands; they gave up their position as a military confederacy, but they did not wish to be absorbed into the body politic of Rome. They asked for the golden mean—a system of federal government, but one that should still preserve the fundamental distinction between Rome and the confederate cities. One of the consuls was to be a Roman, the other a Latin, and half the Senate was to be chosen from Latium. But the civic feeling was too strong at Rome; she would not herself surrender the communal constitution which she had so often wrested from others; she rejected the alternative which would have paralysed her power as a conquering state and made of her but a federal capital. Her “No!” to the Latins was one of the turning-points in the history of Italy and of the world.

The battles of Veseris and Trifanum gave her the victory, but she was sorely puzzled as to the use to be made of it. The league was to be broken up, its members isolated, and this work of disintegration was carried through with thoroughness; not only were the federal assemblies (concilia) abolished, but no right of intermarriage or of commercial intercourse (jus conubii et commercii) was permitted between the cities.[1410] But how to deal with the individual communities was a far harder problem. The incorporation which had been the punishment of isolated revolt could not be applied to the disjecta membra of a whole league, for it would have changed the city-state into a nation. Hence the plan adopted was a compromise between the old policy of absorption and a new principle—that of alliance. Aricia, Pedum, and Lanuvium lost their independence and received the full Roman franchise; while Tibur, Praeneste, Lavinium were compelled to conclude separate treaties (foedera) with Rome, and formed the nucleus of the ever-growing class of civitates foederatae. Thirty years later (306 B.C.) a similar fate befell the remaining league of the Hernici. Their loyalty had not stood the test of the second Samnite war; but there were degrees of guilt amongst the cities. Anagnia, the chief centre of the revolt, and other incriminated towns, were given merely the private rights of citizenship; the full citizenship was indeed offered to the three loyal towns of Aletrium, Ferentinum, and Verulae, but, on their expressing a preference for their own local constitutions and codes, they were permitted to retain an autonomy guaranteed by separate treaties.[1411] The break up of the Hernican league was only an incident in a triumphant career of conquest that was never followed by annexation. The Samnite wars and the struggle with Pyrrhus had ended in the acknowledgment of Rome’s supremacy by every nation south of the Macra and the Rubicon. The three civilisations of Greece, Tuscany, and Italy furnished her indifferently with allies; the town and the tribal union were alike represented in her symmachy. Tibur and Praeneste in Latium, Aletrium and Ferentinum amongst the Hernici, Volaterrae and Clusium in Etruria, Iguvium in Umbria, the Picentes, Marsi, and Peligni amongst the Sabellians, and Greek cities like Neapolis in Campania or Rhegium amongst the Bruttii, are types of the states and peoples that she numbered amongst her socii.

The effect of this unification, and of the tendencies which had preceded it, was to divide the inhabitants of Italy into two broad classes—those of citizens (cives) and those of allies (socii) of Rome. The first class (far the smaller numerically) represented the earlier effort at incorporation; the second was the consequence of the later policy which founded a military league. Minuter distinctions of rights, which necessitate cross-divisions in the classification of the states, sometimes obscure this fundamental analysis; but it was never lost sight of and was the guiding light to the Roman lawyer, as it is to us, in his path through the labyrinth of the complex organisation of Italy.

The cives of Rome bear this name either in a full or a partial sense; they may be citizens with voting rights or citizens in private law alone (cives sine suffragio). If we fix our attention on the first of these classes, we find that historically there were two modes in which the civitas was gained by a commune outside the city. It might be due to the incorporation of an already existing state, or it might be the consequence of the planting of a Roman colony. The merging of some of the Latin communities in Rome[1412] has already furnished instances of the former mode of conferment; the Roman colonies which illustrate the second (coloniae civium Romanorum) were outlying fragments of the Populus, planted as a defensive garrison on the third of the conquered land, which was the legitimate spoil of the invader. A social was from the first combined with the military object; but the enforced exodus of portions of the burgess body on some occasions[1413] proves that, in this form of colonisation, the interest of the state came before that of the individual. It was, in fact, a military levy ordained by law, although voluntary profession usually took the place of the compulsory summons of the regular dilectus. In military array, with standards flying,[1414] the squadron marched to the appointed place under the leadership of the commissioners appointed by the people. When a new town was to be founded, or an old one reconstituted, it was done with the imposing ceremonies that marked the birth and enlargement of Rome. After the will of the gods had been tested and happy omens gained, the commissioners, with veiled heads and loins girt up, guided a plough, to which were yoked an ox and a cow. They thus drew the pomerium of the state, only staying the furrow where the gates of the city were to be.[1415] The greater number of these settlements of Roman citizens were for the protection of the Italian coasts, and the members of the maritime colonies (coloniae maritimae) were allowed exemption from active military service.[1416] Few in numbers (often but a handful of 300 men), and settled in an already existing political society, the colonists formed a privileged patriciate amongst its older members. The town-council, and such subordinate magistrates as Rome allowed them to possess, were probably chosen from the new settlers alone; but, as the autonomy which they enjoyed was not great, as they possessed no high judicial magistrates of their own, and as their voting power at Rome was more a potential than an actual right, they differed little from the native inhabitants, who as cives sine suffragio came equally under the jurisdiction of the Roman courts and their representatives.

Whether the commune of Roman citizens had had a natural or artificial growth, it was never in early times a true state (civitas). Roman law knew of ἰσοπολιτεία, but not of the closer bond of συμπολιτεία; and the principle that no Roman citizen could be a full member of another state, although in the later Republic it had given place to the theory of the municipal independence of the civis was always maintained in international relations with states of the outer world.[1417] As the negation of state life implied the negation of communal independence, we are not surprised to find that none of these communities of Roman citizens possessed a true civic organisation of its own. We cannot define the rights of their town-councils, we cannot assert the absolute non-existence of popular gatherings for certain purposes; but the absence of the imperium and of a true judicial magistracy is clearly discerned. These communes fell under the immediate civil jurisdiction, originally of the consuls, later of the praetor urbanus. Originally it may have been necessary for every case not settled by voluntary arbitration to be brought to Rome, but the distance of some of these towns from the capital would have soon rendered this principle of jurisdiction impossible. The modern solution, that the judge should go on circuit, could not be thought of in a state where the bench consisted of a single man, and where this individual was prohibited by law from leaving the city for more than ten days during his year of office.[1418] The only alternative was furnished by the favourite Roman device of delegation. The praetor nominated praefects for jurisdiction (praefecti juri dicundo), and these were sent, sometimes as standing magistrates, sometimes perhaps as mere circuit judges, through the Roman towns, which were thence known as praefecturae.[1419] Delegation implies either a division of competence or, in the case of the lower court possessing full jurisdiction, an appeal to the delegating authority. There is no trace of the latter practice at Rome, and a systematic division of authority, although motives of convenience may sometimes have led the praetor to permit it, is inconsistent with the Roman idea of jurisdiction flowing direct from the imperium. Possibly the praetor permitted the praefect to regulate almost every kind of contentious jurisdiction, subject to his own right of summoning any case he pleased from the delegate to Rome. By a legal fiction the courts of the praefecturae were held to be within the praetor’s sphere of competence, i.e. within a single milestone of the city; they were, to use the technical Roman expression, judicia legitima. No trace whatever has been preserved of the criminal procedure applied to such communities. The fact that the praefect was the delegate of a civil magistrate would not prove that he was incapable of exercising criminal jurisdiction, for jurisdictio of every kind is latent in the praetor’s imperium. All higher jurisdiction was reserved for the people; but there was only one populus Romanus, that of the city of Rome. Hence when the citizen of Ostia or Tusculum was accused of an offence, the penalty for which demanded a popular sanction, we may assume that he could either make the appeal, through a fiction like that underlying the civil jurisdiction, in spite of his local separation from Rome, or that he stepped, or was brought within, the first milestone of the city, the limit inside which the provocatio could legally be made.

The second type of cives are those without the right of suffrage (sine suffragio). There can be little question that the idea of this status was derived from Rome’s relations with the cities of the Latin league; in her process of absorption, however, she conferred it on towns to which she did not grant the other typically Latin rights; in this way she made of it an independent status. The Etruscan town of Caere is said to have won this right in 353 as a gift for good service to Rome. After the dissolution of the Latin league in 338 B.C. a group of Campanian townships, Capua, Cumae, Atella, and Calatia, were with (the then Latin) Fundi and Formiae brought into this relation with the now dominant city of Latium;[1420] others nearer home, such as Arpinum of the Volsci, were similarly rewarded or absorbed (303 B.C.),[1421] while the status was imposed as a means of degrading and reducing to impotence rebellious townships such as Anagnia, the leading city of the Hernici.[1422] The motive of the conferment, although it might make a difference to the rights of the towns, produced none in the relations of their respective cives to Rome.

The civis sine suffragio was known as a municeps, and the state, all of whose full members enjoyed this status, derived from its occupants the name of municipium. The name of this type of citizen—the “taker up of burdens”—aptly expresses his subjection to the chief duties (munera) of Roman citizenship, such as service in the Roman legions, forced labour in raising defences, the payment of the war-tax (tributum), and his exclusion from the usually corresponding rights of suffrage and of office;[1423] it emphasises the fact, strange to the early Roman mind, of public duties not balanced by public rights, but it contains no implication of the strangest characteristic of the municeps—one almost unknown in ancient legal systems—the possession of a personality in private which is not the result of a personality in public law. The municeps possesses commercium with all its consequences; he possesses conubium with Rome; he is, from the point of view of private law, in every sense a citizen.

This possession of citizenship carried with it as a necessary consequence his subjection to the praetor’s court. His home, the municipium, is therefore, equally with the community of full Roman citizens, a praefectura, and the rules of jurisdiction were the same in both classes of states. To the praefects nominated by the praetor were in course of time added others elected by the comitia tributa, and reckoned amongst the minor magistrates known as the viginti-sex-viri.[1424] These latter were the four praefects of Capua, Cumae, and the Campanian coast; but, in regard to the mode of election, there is no difference discernible between the judicial magistrates of the municipia and those of the communities of Roman citizens. Elected praefects visited the municipium of Capua and the Roman colony of Puteoli, while nominated praefects held their court in the colony of Saturnia and the municipal town of Anagnia.[1425]

But the praefect was far from representing the higher functions of government in every municipium. These towns fall into two broad divisions, not according to the rights which they receive, but according to the rights which they retain. The civitas sine suffragio might be granted honoris causa to a state which maintained its complete independence or its communal autonomy. It was thus conferred on Capua, Cumae, Formiae, and Fundi,[1426] and the gift of the partial citizenship under these conditions was a valued privilege. It enabled a Capuan to own Roman land, to settle on the ager publicus, to marry into the noble houses of Rome, and to serve, not in the auxiliary cohort, but in her army or in the legion raised from the municipes. But meanwhile his own magistrate, the meddix tuticus, administers in the Campanian courts the native Sabellian law,[1427] his senate deliberates, and his popular assembly decides. Sometimes, as in the case of Capua, the state is still bound by treaty relations to Rome, and the two conflicting principles of armed alliance and of absorption are for once commingled.[1428]

Yet, in spite of their independence, there is every reason to believe that the inevitable praefects visited these states. We must assume, at least in the cases where autonomy reached the grade which is visible in Capua, that a dual system of law prevailed in these communities; the court and the procedure would follow the form of contract, whether Sabellian or Roman, and the parties might appear indifferently before the Capuan meddix or the Roman praefect. In other cases, where a large measure of administrative autonomy is visible, but where no magistrate with a higher rank than that of aedile is found within the state,[1429] it is possible that Roman law alone prevailed and that the Roman praefect was the only judge.

The lower class of municipia was represented by states “whose whole commonwealth had been merged in that of Rome.”[1430] Of this class Anagnia, the degraded town of the Hernici, was a type.[1431] Stripped of all the active rights of citizenship, and under the direct government of a Roman praefect, the members of such towns possessed no personality in public law at all. Their position was that of the free Plebeians previous to their admission to the suffragium and the honores.

The second principle in Rome’s Italian policy, first projected after the close of the Latin war and carried to its completion after the struggle with Pyrrhus, resulted in a great military hegemony over states, whose treaty relations enabled them to call themselves the “allies” (socii) of Rome. Collective names were soon devised to indicate the closeness of the union thus formed; at first the confederates were “wearers of the toga” (togati), a name that applied equally to the Latin, Sabellian, and Etruscan. But the introduction of the Greek pallium into the league destroyed this basis of classification; and the later term Italici was evolved, a word whose geographical signification emphasises the idea of a territorial limit to certain rights—one which, as we shall see, was not rigorously preserved, but which marks the distinction, valid alike for the Republic and the Principate, between Italy as the privileged and the provinces as the unprivileged world.

The condition of a conquered town, whether in Italy or the provinces, before its alliance with Rome, is described by the word deditio, a term which implies absolute surrender to the power (ditio, potestas)[1432] or to the honour (fides)[1433] of the Roman people, the two latter expressions being to the Roman mind legally equivalent.[1434] Such a dediticia civitas is in the negative condition of an absolute suspension of rights, and remains in this case until some are given back by Rome with a guarantee of their permanence. Deditio is, therefore, a temporary status, although it might be occasionally prolonged as a penal measure, as it was in the case of the revolted Bruttii after the Hannibalic war.[1435] In Italy, as a rule, the terms that Rome dictated were those of a military alliance, the conditions for membership of this being, firstly, external sovereignty (libertas), as conditioned by the terms and objects of the league;[1436] secondly, internal independence—a condition which the Greek cities called αὐτονομία, and which, in a Latin charter to a provincial town, appears in the form of the permit suis legibus uti;[1437] thirdly, a basis for these rights, as also for the obligations which these states owed to Rome. In dealings, with the extra-Italian world this basis was either a charter (lex data), given by the Roman people and revocable by them, or a treaty (foedus), equally sanctioned by the people but irrevocable, as being sworn to by the two contracting parties; its revocation could only be the consequence of a genuine casus belli. In the first case the state is a libera civitas, in the second a libera et foederata civitas,[1438] or, in its more general and briefer designation, a foederata civitas.[1439] In Italy positive evidence furnishes us only with the foederatae, but the existence of the liberae civitates must be assumed, since, immediately on the beginning of provincial organisation in Sicily, this status is adopted.

In Italy also there was doubtless the distinction between the higher and the lower kind of foedus—the foedus aequum and the foedus iniquum. In all treaties concluded between Rome and cities in her symmachy there was a recognition of partial dependence in the latter; but some of these treaties contained a “suzerainty” clause to the effect that the state in question should “in a friendly spirit respect the majesty of the Roman people.” This clause did not diminish the libertas of the state accepting it, but merely strengthened the position of Rome.[1440] It was a characteristic of the iniquum foedus.[1441]

The duties of the federate cities expressed in their name (socii, σύμμαχοι) were primarily the furnishing of requisitions whether in men or ships. The latter were demanded from the Greek cities of the coast, but Italy as a whole furnished the auxiliary land armies of Rome, the togati liable to the levy.[1442] Every state had to keep a register of its effective strength in accordance with a principle of assessment (formula).[1443] The general demands of Rome were specified in the treaties; the special levies required at any given time were dictated by the Senate and consuls.[1444]

Military requisitions necessarily involve pecuniary burdens. But these were all indirect. Each city had complete control of its own finances; no tribute was imposed by Rome, and the antithesis to the socius is the stipendiarius.[1445] This immunity was originally based on the theory of treaty relations; later, when the view had grown up that the tribute paid by the stipendiary states was the result of their precarious tenure as possessores, the Italians were held to be owners of their land. The jus Italicum of the Principate confers on any state to which it is granted quiritarian ownership, and, therefore, immunity from taxation on land.

Enjoyment of their own laws and control of their own courts were other symbols of the autonomy of the allies. Rome could not legislate for the Italian socii, and they were beyond the judicial authority of the Roman magistrate in Italy.

But the necessities of social and commercial intercourse rendered it advisable that the Italian allies—more especially the Latins—should be brought into close legal relations with Rome, and the acceptance by the latter of innumerable civil laws of the central state is attested by Cicero.[1446] The Italians are known to have been bound by a plebiscitum concerning loans[1447]—this, however, only made contracts of a certain kind between them and Romans invalid, and may not have demanded their consent; but their formal acceptance must have been required for the Didian law, which extended the sumptuary regulations of the lex Fannia to all the Italici.[1448] The “free” as well as the “federate” city has the right to accept or decline a legislative proposal put before it by the Roman government.[1449]

Closest of all to Rome were the Latins. As members of federate cities they were amongst the socii,[1450] and it is only as a class with special privileges that they are distinguished from the latter.[1451] Latinitas had, through the efforts of colonisation, long lost its geographical and ethnic significance. It was the name for a status often accepted by Roman citizens, which combined the anomalies of sovereignty and a partial Roman citizenship. The sovereign rights are those possessed by the socii, the civic privileges were originally those held by the municipia; but it is possible that on and after the foundation of Ariminum and the last twelve Latin colonies[1452] commercium alone was granted, conubium refused.[1453] The most distinctive privilege of the Latin had been the concession of facilities for acquiring Roman political rights. A Latin who migrated from his town and became a domiciled immigrant (incola) of Rome had retained his civic rights in private law, and gained a limited power of suffrage.[1454] He could even by complete expatriation (exilium) surrender his own civitas and attain the full Roman citizenship. But the conditions subsequently imposed on this right[1455] were evaded, immigration continued unchecked, and there was a danger of the depopulation of the districts from which the exiles came. This evil suggested the later method, which gave the Latins admission to the civitas. The holder of a magistracy in his native town was, by the mere fact of his position, to become a full citizen of Rome. It is improbable that this right replaced the right of exile possessed by already existing Latin towns, and the date of its origin is unknown; but it possibly accompanied the remodelling of Latin rights in 268 B.C., and is henceforth the typical privilege of the Latin colony.[1456] Another mode in which the individual Latin could acquire the Roman civitas was by conducting a successful prosecution under the Acilian and Servilian laws of extortion.[1457]

The freedom of the cities, whether Latin or Italian, seems to have won rigid respect from Rome and her magistrates. The burdens of military service were, indeed, unevenly distributed between the central city and her allies,[1458] while the spoils of war were mainly for the Roman. But it was a shock and a surprise when in 173 B.C. a consul made personal requisitions on the federate city of Praeneste.[1459] The lesson once learnt was only too faithfully followed, and the illegal demands of Roman officials were accompanied by acts of capricious violence.[1460] But the burden of service and the misuse of power were not the only motives urging the allies to seek the civitas of Rome; nor was it merely a sentimental desire to be invested with the Roman name. The citizenship had a positive value both as a protection and a source of gain. The protection against capital or corporal penalties tacitly accorded to Romans by provincial governors could not be claimed by the allies, and, although there is no evidence that Rome, in her final organisation of the Italian confederacy, continued her early policy of inhibiting commercium between the towns, yet citizenship had a commercial value. Ownership of land in the provinces was protected by the praetor and the proconsul, but only when it was held by a Roman. To the Roman trade with the barbarian was secure, to the Italian precarious; and everywhere he had to face the competition of the commercial companies of Roman knights. The grounds of interest coincided with those of sentiment in producing a demand which the progressive party amongst the Romans strove to meet. The first attempt was made through a law of the consul Flaccus in 125 B.C.,[1461] the second by one of C. Gracchus in 121, the latter law probably offering citizen rights to the Latins and Latin rights to the other allies.[1462] The final proposal of Livius Drusus in 91 was probably an unmodified extension of the civitas,[1463] and it was the failure of this measure that led to the Italian revolt. A new suggestion for a solution of the problem of the relations of Rome to Italy sprang from the organisation of the hostile states. A federal capital, Corfinium, now Italica, was created, and a provisional federation of eight states formed, one which was intended ultimately to embrace the whole of Italy. The Roman, or rather Italian, pattern was followed in the new constitution; it possessed two consuls, twelve praetors, and a senate of five hundred;[1464] but both the magistracies and the senate were of a federal type. The issue of the war was to determine whether Rome should remain the leading state or become a mere member of an Italian confederation, although the unlikelihood of the giant city’s settling down to this position may have appealed to some of the federal leaders.[1465] Unless a redistribution of territory and population had been effected, Rome would have been the Thebes of the league, and the fate of the Empire would have been in suspense, for a federal government’s capacity for imperial rule had yet to be tested. By timely concessions Rome saved her position as the head of the confederacy. By the lex Julia (90 B.C.) all the Italian states that had not revolted were offered the civitas,[1466] and this was followed by the lex Plautia Papiria (89 B.C.), which offered the civitas to the socii and incolae of the allied cities in revolt.[1467] These measures effected a considerable extension of the citizenship, but other means, of which we are ignorant, must have been adopted for the gradual incorporation of communities, many of which still remained for a considerable time in rebellion against Rome.[1468]

The work of incorporation immediately raised two problems. The first was the question of the voting rights of the new citizens. These rights were at first grudgingly accorded to prevent the new citizens swamping the old. The novi cives were enrolled in but eight of the existing tribes.[1469] But this compromise could not last long; redistribution became a party cry, and even the conservatives felt the damage done to their cause by a prolonged opposition to the Italian vote. The measure of Sulpicius (88 B.C.), which distributed the new citizens over all the tribes, was indeed repealed with his other laws; but its principle seems to have been adopted in a decree of the Senate of 84 B.C.,[1470] and the equality of the Roman and Italian vote was henceforth never questioned. The vote itself was not of the importance anticipated. It was, in the first place, rendered ineffective through lack of a system of representation. Even had such a system, planned on a small scale by Augustus,[1471] been realised, it is questionable whether it could have saved the Republic. The Empire had to be garrisoned by professional armies, and these could not be found in Italy. The military and the civil power would in any case have been opposed, and the conflict must have ended in a victory for the former. But, so far as the extension of the civitas did affect future politics, it was only to create a dualism between the Roman proletariate and the Italian country voters. They had different ideals and different leaders. But the former were on the spot, ready for any legislative work, and in the troubled politics that ushered in the monarchy it was they who supported those champions of freedom who replaced senatorial rule by a military despotism. The ideal of the Italian was quiescence; the scattered voters with no corporate organisation were more prone to look to persons than to causes; sometimes there was a wave of municipal enthusiasm, but many an Italian township recognised no leader but its Roman patron, and saw in his success at the polls the highest use to which they could put their suffrage.

The second great problem was that of the future administrative relations of Rome to these incorporated townships. The growth of the municipal idea was not a new one. Even as early as the beginning of the second century B.C. the possibility had been demonstrated of combining active internal independence with the possession of the full Roman civitas. Arpinum had received the full citizenship in 188 B.C., and its citizens vote henceforward in the Cornelian tribe;[1472] but its internal autonomy was not destroyed, for the town was still legislating for itself in 115 B.C.[1473] Meanwhile there are signs that a higher type of organisation was being given to Roman colonies; at least duovirs, who may be duoviri juri dicundo, are found at Puteoli in 105 B.C.[1474] This idea of some political and judicial independence being enjoyed by townships, which had become a part of Rome, was worked out on the grandest scale after the social war; but the turbulent times which followed were not suited to comprehensive municipal legislation, and it is not likely that a definite system, which adjusted local to central powers, was developed before the Augustan period. Something had however been done in Cicero’s time. Here and there we find a local constitution remodelled,[1475] and there is evidence that there was already some division of competence between the local magistrate and the praetor urbanus in civil jurisdiction—the defendant being in some cases compelled to give bail (vadimonium) to bring his case to Rome.[1476] This principle of a limitation of the power of the local courts is found fully developed in a lex Rubria which deals with the organisation of Cisalpine Gaul. This district had held an anomalous position from the time of the social war. Although still a province, its towns had been given Latin rights in 89 B.C.[1477] This was interpreted by the democratic party as a forecast of the citizenship, for Gallia Cisalpina was certainly enrolled in Rome by the revolutionary government of Cinna or his successors.[1478] The grant, however, was not approved at the Sullan restoration, and its validity was disputed until Caesar renewed the gift in 49 or 48 B.C.[1479] Two or three years earlier he had busied himself with the creation of an Italian organisation in the Gallic towns;[1480] but, even after his conferment of the citizenship, the incorporation of the district into Italy was not immediately accomplished. It remained technically a province until 42 B.C., when Octavianus gained the consent of the Senate to its “autonomy,”[1481] i.e. to its recognition as a group of Italian townships. It is doubtful whether the lex Rubria belongs to the epoch of the Julian or the Augustan organisation;[1482] but it is practically certain that it extends an already existing Italian system to the new district. The chief characteristic of the system is a division of power between the praetor at Rome and the magistrate in the municipal town. In the fragment of the law which we possess this division is manifested in two particulars. The right of declaring bankruptcy (missio in possessionem) is reserved for the praetor, although the provisional arrest of the debtor (duci jubere) may be ordered by the local magistrate. Again, in the action for the recovery of a loan and in those arising from some other obligations, all cases involving a sum over 15,000 sesterces must be remitted to Rome, the local magistrate having the right to enforce on the parties bail (vadimonium) for their appearance there.[1483] These fragmentary notices are an index to a principle which was doubtless fully elaborated in the Augustan legislation.

A tolerable degree of uniformity was also secured in the political structure of the towns of Italy. It was but a development of the typical Italian constitution of magistrates (magistratus potestatesve),[1484] senate (senatus, curia, composed of decuriones conscriptive), and popular assembly (comitia conciliumve, composed of municipes and sometimes of incolae); and the lex Julia municipalis of Caesar (45 B.C.) ordains a uniform qualification for the local magistracies and senates, and enjoins that the local census shall be taken in conjunction with that of Rome. But, though the general lines of organisation were the same, this uniformity was chiefly the result of growth, not of creation. No effort was made at securing a common nomenclature either for the states or for their officials. Caesar’s municipal law shows municipia, coloniae and praefecturae existing side by side,[1485] while inscriptions show titles for officials, such as dictator or praetor, which may be as old as those of Roman magistrates.[1486]

VIII. THE ORGANISATION AND GOVERNMENT OF THE PROVINCES

When Rome had asserted her supremacy over the greater part of Sicily at the close of the first Punic war, a new problem in organisation was presented to her. She held, perhaps rightly, that these new dependencies, with their transmarine position, fickle politics, and in some cases Carthaginian sympathies, could not safely be included in the military symmachy of Italy; so she substituted tribute for military service, placed the command of the cities of a wide district under the guidance of the personal imperium, and created the first permanent external department of administration (provincia). The government which had been adopted for Hellenic cities was still more necessary for the barbarians of Spain, a country which Rome had not sought but which military exigencies alone warned her not to leave. The recognition of Empire in the West was rapid and easy, for the effective government of Italy seemed to involve the control of the Tyrrhenian Sea. The Senate showed greater hesitancy in accepting a similar Adriatic policy, and declined to recognise that Rome had permanent interests even in eastern Europe of a magnitude that should lead to Empire. War followed war, Greece was once and Macedon twice at her feet, but on every occasion she declined to annex. It was not until experience had proved the costliness and the danger of a protectorate that in 146 B.C. Macedonia was recognised as a province with Achaea as its annexe. The troublesome relations with Carthage had meanwhile ended in war and annexation, and what had hitherto been rather a distant problem—Rome’s relations with the potentates of Asia—became, as the years rolled on and as Roman trade struck deeper roots in the East, one of paramount concern. The history of eastern Europe was repeated in Asia, and although Rome had already a foothold in Anatolia through her acceptance of the kingdom of Pergamus, the death-blow to the protectorate system in these regions was first struck by Pompeius’ organisation of the East at the close of the Mithridatic wars (65-63). Further extensions in the West and North, which resulted in the conquest of further Spain and of Gaul, were due to the enterprise of individual commanders, or to the search for a frontier which should be a permanent protection against barbarian invasion; and at the close of the Republic the list of Roman provinces had risen to fifteen.[1487]

The idea of a province was that of an aggregate of states (civitates); where Greek or Phoenician civilisation had penetrated, these states were cities, but sometimes, as in Gaul and Spain, they were cantons or tribes. Natural political associations were usually chosen as the units of government, although formidable combinations were broken up, and the numerical regulation of the government centres in a province was an integral part of its organisation. Thus the number of communal unions was in Sicily 68,[1488] in Asia 44,[1489] and 64 in Transalpine Gaul.[1490] Such aggregates probably include the free and federate states, which, although geographically, were not juristically within the province at all. The cities which were liberae and those which were liberae et foederatae differed, sometimes perhaps in the degree, but always in the basis, of their rights. The latter had the grant of their rights embodied in a sworn treaty (foedus), which was the product in the earlier Republic of Senate and people, in the later of either of these powers,[1491]—a guarantee which was meant to be perpetual, and the breach of which was either an act of war or its result. A charter (lex data), on the other hand,[1492] which made a city only “free” might be revoked at any moment. The rights common to both groups of states are practically those of the Italian communes[1493]—a control of their own finances, a free enjoyment of their land which exempted them from the payment of tribute, and above all a use and enjoyment of their own native law[1494]—and both agree in being entirely outside the sphere of the governor’s jurisdiction.[1495] He could enter such a privileged city only as a guest, and although for purposes of convenience great central cities which were free, as Antioch in Syria and Thessalonica in Macedonia, were, from their position as natural capitals, chosen as the residence of the governor, he merely exercised jurisdiction in these towns, not over their citizens. More distant still from provincial rule were the allied kings (reges socii) on the frontiers. Their independence was less conditioned than that of the free and allied cities, for they were bound to furnish less definite assistance to Rome in time of need, and their foreign activity was not wholly destroyed. But the chief reason why in a list of Rome’s friends they appear in a separate category[1496] is that a treaty with a king was not, like one with a Republic, regarded as eternal. It was a personal obligation, and its perpetual validity depended on its renewal with each successive occupant of the throne.

States which belonged to neither of these categories were subject or, as the phrase ran, tributary (stipendiariae), the test of subjection being the normal one in the ancient world of the payment of a tax to a superior. Yet these too had their rights and their charter. The guarantee, however, was no longer individual but collective, and was contained in the law of the province (lex provinciae). This law was usually the work of the conquering general himself, assisted by ten senatorial commissioners (decem legati) appointed by the Senate, and it continued to bear the name of its chief creator, as we see in the cases of the lex Rupilia of Sicily,[1497] the lex Aemilia of Macedonia,[1498] and the lex Pompeia of Bithynia.[1499] While it re-established the states of a conquered district, it also gave them certain ultimate rights. It defined the burden of the tribute, specified the particular circuit-courts which the citizens of the various towns were to attend, and framed regulations, which the governor was expected to observe, about national and international jurisdiction. But these regulations, slight and general as they were, are no sufficient test of the amount of autonomy, in administration and jurisdiction, actually enjoyed by the subject towns. Much of their independence was permissive and based on the will of the governor. But the ruler, whether honest or dishonest, was practically bound to grant it, for the Roman government had provided him with no staff which could take over the minuter duties of administration; if he was an enlightened man, he cherished the fiction that the states were free;[1500] if unenlightened, he at least knew that by permitting self-government he was saving himself trouble. In the case of the eastern cities the neglect of the governor was almost as great an evil as his exactions.[1501]

The theory of Roman taxation was in origin that it was a war indemnity. This accounts for the fact that in the early days of Rome’s dealings with conquered peoples a tax might be imposed even on nations which were declared free,[1502] and for the name stipendium (“payment for the army”) which was borne by the direct taxation imposed by Roman commissioners on provincials.[1503] This equitable theory, that the taxes collected should merely defray the expenses of the military occupation and administration of a province, seems to have been realised in practice where the Roman government took the trouble to organise a system of its own. The Macedonians were made to pay but half of what they had paid to their kings,[1504] the Spanish provinces must have cost more than they brought in, and in Cicero’s time it was only the Asiatic provinces, where taxes were imposed on quite a different system, that yielded a surplus.[1505] It was this system, which the Romans found existing in Sicily, Sardinia, and Asia, and with their characteristic negligence elected to preserve, which changed the whole theory of Roman taxation. The principle was that of the payment by the cultivator (arator) of a tithe (decuma) of the produce of his land. It was inevitable that the Roman lawyer should associate this due with the vectigal paid by the occupants of ager publicus, and should evolve from the comparison the strange theory that land in the provinces was not owned but merely “possessed” by its holders.[1506] The chief practical consequences of the tithe system were a surplus to the treasury, and the exactions of the middlemen (publicani) through the indirect system of collection which it involved.

The direct tax (stipendium) was collected by a tribute assessed either on the land (tributum soli) or on the personalty of individuals (tributum capitis).[1507] The Romans of the Republic seem never to have attempted to form an accurate estimate of the resources furnished by the land and personal wealth of a province; doubtless in Hellenised districts they employed the systems which they found existing, such as the schedules which formed the bases of the εἰσφοραί: in Spain amongst other rough expedients they seem to have adopted a valuation tax on a proportion of the produce of the soil;[1508] while elsewhere, as in Macedonia,[1509] they fixed a total on the existing basis of collection. The direct tax was usually collected by the communes themselves and paid to the governor’s quaestor.

The tithe (decuma) was collected on the contract system, and the difference in its mode of collection in the vectigales provinciae depended on whether the site of the auction was in the province itself, where local companies or even communities[1510] could compete for its collection, or whether the tithes of the whole province must be put up to auction in Rome, in which case the province was likely to become the prey of a single Roman company. In Sicily the first system was adopted in accordance with the principles laid down by Hiero, its last great king (lex Hieronica);[1511] the second system was devised by C. Gracchus for Asia and was doubtless extended to eastern provinces subsequently organised such as Cilicia.[1512] The pretext for the change was no doubt the incapacity of the Asiatic cities to collect their own dues,[1513] and was welcome to the weakness of the states, which liked to have near them a body of Roman capitalists from whom they could borrow in emergency; but it created a pernicious connexion between capitalism and administration which made the government of the Asiatic dependencies the gloomiest scene of Roman rule. The tithe system in Asia, and perhaps in other provinces where it prevailed, was abolished by Caesar in 48 B.C.[1514] The harbour and frontier dues (portoria), the source of revenue next in value to the direct tribute or the tithe, were collected by private companies (portitores) perhaps throughout the whole imperial world, as they had been from the earliest times in Italy.[1515] Other dues demanded from the province were paid for by the Roman government. Such were the corn supplied for the praetor and his retinue (frumentum in cellam or frumentum aestimatum),[1516] and the second decuma sometimes required by the state (frumentum emptum) and raised by command of the Senate and people.[1517] In both these cases a reasonable price was fixed by the Roman government.

We pass now to the governor and his staff. The early institution of praetors and the later use of the pro-magistracy for provincial government have already been described.[1518] But we have seen that even Sulla did not formally dissociate the consulship and praetorship from provincial rule.[1519] The consequences of this continued association were curious. By a law of C. Gracchus, which aimed at destroying one of the most valuable pieces of patronage which the Senate had at its disposal, the consular provinces must be assigned before the election of their holders.[1520] They are strictly consular, and are technically entered on by their possessors on March 1 of their year of office, although no definite agreement need be come to as to their partition until the following December[1521]—the earliest date at which the consuls of the later Republic could quit their urban duties. March 1 was the beginning of the military and provincial year, as since 152 B.C. January 1 had been of the year of civil office at Rome. The reason why the 1st of March of the year of office at Rome was chosen, and not the same date in the following year, was that the pro-magistracy was not yet recognised as a separate office, and that, if this second solution had been adopted, the interval between December 29 and March 1 would have caused a break in the imperium.[1522] The anomaly resulted that a provincial governor held his command only for two months in his own right, and for ten months while waiting for his successor. It was harmless in practice, inasmuch as Sulla’s law had ordained that the governor should retain his imperium until he returned to Rome, and need only quit his province thirty days after the arrival of his successor,[1523] and was only accidentally disastrous as leading to the quarrel between Caesar and the Senate, and thence to the downfall of the Roman Republic. The pro-magistracy was first raised into a separate office by a Pompeian law of 52 B.C., which enacted that governors should seek their provinces five years after holding office at Rome. It was a law that, by diminishing the nearness of the prize, was intended to make the consulship and praetorship less an object of illegitimate ambition at Rome. It might, therefore, have conferred a slight indirect benefit on the provincials, but the speedy collapse of the Republican government prevented its adequacy being tested. The tenure of a provincial governorship was nominally annual, but, even after Sulla had raised the number of praetors to eight, there were but ten magistrates available for fifteen provinces, and we know of three propraetors—Verres in Sicily, Q. Cicero in Asia, and Fonteius in Narbonese Gaul—who severally held their provincial commands for three years in succession.

The chief members of the governor’s staff were one subordinate magistrate, the quaestor, and certain senatorial commissioners (legati), one of whom was usually assigned to a praetorian, and three to a consular province. The magisterial position of the quaestor did not entitle him to an independent sphere of duties. It is true that he was, in the main, a financial official, was entrusted by the Senate with money or a credit for meeting the expenses of the administration of his province,[1524] received the revenues from the stipendium, and had at the end of the year to give an account of income and expenditure in his own name and that of his superior;[1525] but even here the real responsibility was incurred by the governor, whose commands were irresistible, and in all other respects the quaestor is the merest delegate, who exercises jurisdiction, or any kind of administrative work, in obedience to a voice that was supposed to convey a paternal authority.[1526] He might even, like the legates, be dismissed for incompetence or maladministration before the term of his office had expired.[1527] The legati had originally been representatives of the government in Rome, but, to avoid friction, the custom grew up of allowing governors to suggest individuals for the post.[1528] Yet to the end of the Republic their names were submitted to the Senate, and they were supposed to be subordinate officials of the state. No special departments were, however, assigned them; any power which they exercised was delegated by the governor, whether it took the form of the command of a legion or the presidency of a court. A still more independent selection was made of the unofficial members of the staff. The “comrades” (comites) of the governor were young men, whom he initiated in the mysteries of official and diplomatic life, and whose services he employed for any purpose for which they seemed competent.[1529] But, however many instruments the governor might use, there was such a complete unity of responsibility that, in dealing with the administration of a province, we are treating of the powers of a single man.

These powers were exercised chiefly in three spheres—military, administrative, and judicial. In a province that seethed with war the summer months were spent in camp, the winter in more peaceful duties; but in a settled district the governor could map out his circuits as he pleased, and devote some time to the ungenial task of inspecting the affairs of the municipalities under his control. Apart from the necessary diplomatic intercourse with neighbouring potentates or protected chiefs, the amount of administrative work which the governor undertook was as much or as little as he pleased. Its quantity depended on his view as to how far self-government was a symptom of health or of disease. That it sometimes had the latter character is shown by the startling discovery made by Cicero when he undertook an unexpected investigation into the financial affairs of his subject states. He found that the native Greek magistrates of Cilicia had been plundering their respective treasuries for the last ten years.[1530] But the possibility of such a discovery is itself a testimony to the best aspect of provincial rule in the Republic—its noble but sometimes misguided belief in the capacity of people to govern themselves.

There was, however, one systematic function to which most of the governor’s energies were directed in time of peace, and that was jurisdiction, both civil and criminal. General regulations concerning jurisdiction were made in the charters of the provinces; but these could not be the same for every country, since the judicial machinery of some groups of states was far more perfect than that of others. Sicily, the only province the details of whose lex are known, was peculiarly favoured, and its privileges may be taken as the best type of those offered by Rome. It was ordained that, in a suit between two citizens of the same state, the trial should be held in that state and according to its laws,[1531] a regulation which certainly guaranteed the native judex and the native code, but which did not, perhaps, inhibit an appeal to the governor or take away his right of interpreting the law. The charter then provides for cases of inter-political jurisdiction. If a Sicilian of one state sues a Sicilian of another, the governor is to provide by lot the judex or judices,[1532] who are perhaps in this case to be Roman citizens.[1533] When litigation arises between an individual and a community not his own, the Senate of some third state should be the judge, when either litigant has challenged one of three senatorial bodies proposed.[1534] In suits between Roman citizens and Sicilians the judex was to be of the nationality of the defendant.[1535] In all other matters judices chosen by the magistrate (selecti) were to be appointed from the Roman citizens dwelling within the assize.[1536]

In Sicily it is clear that the peregrinus judex was a standing institution. Elsewhere, even in the Hellenised East, his existence was more dependent on the grace of the governor. Cicero, in his government of Cilicia, following the precedent of Mucius Scaevola, the ideal governor of Asia, allowed the greatest freedom to the native laws, courts, and judges, and remarks on the quickened life which their use inspired in the provincials.[1537] The attempt, indeed, to substitute her own for the native law was abhorrent to the political sense of Rome, and her most ambitious representatives never attempted to make their edicts into codes. The importance of the edict was chiefly felt in matters of private international law, administrative jurisdiction, and procedure. It stated principles which should regulate the relations between members of different states or between provincials and Romans, it issued rules for the settlement of claims made by the publicani, and it supplemented the law of the province by framing regulations for the conduct of private suits. The edict of each province was a separate entity, and drew its name from the country to which it directly applied,[1538] and it had a continuous existence, although the unity and continuity of its life depended too much on the discretion of the individual governor.[1539] The edict might be composed at Rome,[1540] and its author might copy from more than one original. The rulings of his predecessor would doubtless be well known; there were the edicts of other provinces, the work of famous administrators of the past;[1541] and, as a fruitful source of general rules of procedure, there was the edictum perpetuum of the capital In Cicero’s own edict, of which he furnishes a brief description, the principles regulating business and trading relations (especially as existing between Roman companies and provincials) were clearly and fully set forth. As much attention was devoted to the general rules of inheritance and bankruptcy, such as had been evolved by the imperium at Rome, and which were doubtless meant not to supersede the customs of the various communities, but to be a common law for the province as a whole. But much remained that could not be formulated. A province had boundless surprises in store, and Cicero found it wiser to leave the third part of his edict “unwritten.” The principles of the urban praetor were to be drawn upon as occasion required.[1542] The civil jurisdiction of the governor, which was based on the edict, was either personal or delegated, and in both cases required the visitation of circuits (conventus, διοικήσεις),[1543] into which the province had been divided at the time of its organisation. A programme of the assize was drawn up, the stay in each circuit was accurately determined,[1544] and the governor held a court (forum egit) in each of them in turn.[1545]

Delegated jurisdiction was performed usually by the quaestor and the legates; in both cases it was due to the mandate of the governor,[1546] who could assign them lictors, if he pleased,[1547] and could always control their sentences.[1548]

The governor possessed an unfettered criminal jurisdiction over the members of the stipendiary states; but it cannot be supposed that he often exercised it. He might summon any case into his court, but ordinary crimes he doubtless left to the judicial machinery of the states themselves.[1549] On the other hand, it was held that an offence might be of such import as to transcend even his competence; and although there was no legal means of escaping his jurisdiction, it was considered advisable that he should send cases of a grave political character—those, for instance, connected with sedition or a popular rising—to be tried at Rome.[1550] The only restraining influence on the governor’s jurisdiction was the necessity, imposed by custom, of consulting a council of advisers.[1551] This consilium, however, was purely Roman, being composed of Roman citizens residing in the conventus and of members of the governor’s retinue,[1552] and although a council composed wholly of the latter was usually avoided, there was no legal hindrance to such a narrow selection.[1553]

Over Roman citizens in the provinces the governor possessed the same autocratic power; for his jurisdiction here is on a level with that of the camp, and he gives judgment in a sphere to which the provocatio does not extend.[1554] Yet a strong customary law, which was seldom disobeyed, directed that he should remit to Rome all cases in which Roman citizens were to be tried on a capital charge, and that, if he pronounced judgment himself, he should inflict on them no degrading punishments.[1555]

Almost every item in the provincial organisation that we have sketched shows where its inherent weakness lay. It resided in the uncontrolled power of the governor. Yet it was a weakness more apparent in practice than in theory. There were many controlling forces at work which the organiser and the government hoped would be effective. There were the charters of cities and of provinces, and in the province a constant, if improvised, committee of the Senate, which the governor was supposed to consult before he ventured on any important step.[1556] There was an unparalleled amount of legislation intended for the protection of provincials and expressed in enactments dealing with the ordering of the provinces, the rights of magistrates, and with extortion (de provinciis ordinandis, de jure magistratuum, repetundarum); and, lastly, there was the criminal responsibility supposed to be enforced by the courts which carried out these laws. Some of these checks—the charters of the favoured cities, the senatorial commission—were real, but were not far-reaching enough seriously to affect the form of provincial rule. Those of the laws were almost nugatory, for though the government that proposed them had a collective conscience, its individual members who were bound by them had none, and the courts that were supposed to enforce these laws became the prey of party strife and the weapon of party fanatics. But a government that depends on protective legislation and the enforcement of criminal responsibility must be in a perilous state. The defect must be in the principle of rule, not merely in its working. And in truth the Republican theory of provincial rule represents a fundamental inconsistency of idea. The theory aimed at the impossible combination of martial law with municipal independence. Had the rights of all the states been provided with better safeguards, their self-government might have been more real, and the autocracy of the governor might have been proportionately checked. But this solution would have been an offence to the idea of the unlimited imperium, a clinging superstition which the Romans had inherited from the history of their own state and her days of conquest. The Roman Empire had been developed from a protectorate; it bears to the end of the Republican period the traces of its origin, and, in its lack of organisation, conveys the suggestion of being a merely provisional government. The merits of such system as there was cannot be ignored. The unrestricted imperium was necessary in time of war and, under a benevolent despot, might be useful even in days of peace, while the very absence of organisation betrays the noble belief that the aggregate of states which formed a province was rather a confederated suzerainty than an integral part of an empire. But its defects are more glaring and are to be found in the absence of some central authority at home, not interested in provincial misrule, which might enforce responsibility on governors; in the existence of annual commands, and the exaggeration of routine which rendered extraordinary appointments, such as that of Pompeius, inevitable; and in the lack of an organised civil service, which, with its mechanical routine and its self-evolved rules, is perhaps the surest of all checks on autocracy.

IX. THE REVOLUTION AND THE TRANSITION TO THE PRINCIPATE

The party of reform which, during the last century of the Republic, gave a new development to the elastic Roman constitution, by gradually creating a stronger executive organ than had been known since the time of the monarchy, had two distinguishing features. One was an opposition, sometimes rational, sometimes blind, to the senatorial government; the other the exposition of a positive programme for remedying evils which all but the most callous or careless could see. The nature of their attack varied with the assailable features presented by its object. At first it was directed against the assumed indifference of the Senate to internal reform and its failure to suggest hasty remedies for economic grievances. This was the essential feature of the Gracchan movement; but, although its example was perilous, the immediate effects of this first revolution were transitory in the extreme. The Senate emerged from the attack shaken but victorious. Italy was but of little account when the world lay at the feet of the noble families who composed the great council of state, and the Senate could be made to appear the only true government for an empire. Unfortunately this theory was rudely shaken. A miserable war in a protected state, into which the government was most unwillingly dragged, was thought sufficient to show that the merits of the senatorial administration of the empire were an illusion. The epoch of the Jugurthine war is the turning-point of the history of this period. A reforming party with an imperial policy must associate itself with the military power. The change was rapidly effected. Tribunes, commons, assemblies still represent the nominal sovereigns, but their weapons—too powerful for the users—are the imperator, the army, and the camp. Henceforth we find a perpetual association of militarism with democracy which could have but one issue, a monarchy resting on the sword.

But to the reformers of the times the ultimate solution of the constitutional problem was something far less present than the programme of reform, which was being handed on from leader to leader with scarcely an item altered since the time when the genius of C. Gracchus had given it birth. It contained agrarian laws, measures for corn distribution and for colonies beyond the sea, means for relieving social distress and the plethora of the great capital, and at times it admitted—the most pressing need of all—proposals for remedying the iniquitous relations that the law permitted to exist between debtor and creditor. A new and unexpected development was given to the activities of the party by the introduction into their programme of proposals for enfranchising the Italians. This was a measure that, like so many others in popular programmes, was a creation of the demagogue and was profoundly distasteful to his followers. Its acceptance by the Liberals (populares) was a pure accident—one due to the desire of breaking a formidable weapon employed by the Whig opposition, who, like Scipio Aemilianus, had adopted the somewhat dangerous policy of playing off Italian rights against those of the city proletariate. But, as belief usually follows acceptance, there is some reason for regarding the franchise question as, at least finally, a plank in the democratic programme. In the multiform efforts of the discontented we can also discern the spasmodic attempt to create a competent central military authority for Rome, as the only means of securing corn, commerce, and the empire.

It was by no means a homogeneous party which developed this programme and attempted to replace a government which they deemed incompetent. Even its more thorough-going members cannot be described by a single name. Amongst the populares were many Liberals who had nothing to gain by revolution; but amongst them were also to be found many who were democrats by necessity as well as by conviction, the revolutionary element which was often a thorn in the side of the reforming constitutionalists, the class of improbi which supplied Catiline’s so-called “conspiracy” and made it a genuine democratic movement, and whose aspirations were subsequently represented by Caelius Rufus and Dolabella. Nor must it be supposed that there was any clear line of demarcation between populares and senators. Nowhere was the Senate more bitterly attacked than from within its own body. The leaders of the extreme party had attained the magistracies that entitled them to a seat in the Curia, and elections, so far as they were not gained by family influence or bribery, were fought on party lines. Nor even amongst the constitutionalists was there a lack of would-be reformers of a more moderate type. The elder Cato and the Scipionic circle, while eager to maintain senatorial ascendency, had been conscious of some of its defects; and, as the cry for innovation gathered in strength, a party was formed which, by borrowing wholesale from the radical programme, attempted to reconcile the privileges of their order with concessions to Italy, purity in imperial administration, and care for the poor of Rome. This attempt was shattered by the fate of the younger Drusus, and henceforth there is no senatorial party of reform. Even Cicero, with his wide sympathies and his acute sense of the evils of the time, can suggest only a concordia ordinum, merely a means of bolstering up the existing constitution by means of a union of the propertied and therefore “loyal” classes (boni). The municipal statesman did, indeed, wish to see an “Italian” rather than a “Roman” government, but he had no scheme by which Italy could have secured representation at Rome, and before the close of his life he had accepted the inevitable solution of personal rule. There was to be a moderator rei publicae, a princeps civitatis;[1557] but this monarchy is not to destroy the constitution; his prince is to be a loyal coadjutor of the Senate, not the exponent of a military despotism.

It is probable that with parties so evenly balanced as the populares and optimates no very decisive result would have been attained, had it not been for the existence in the state of a perfectly homogeneous body of men with few ideals but very decided wants. This was that upper middle class of large and moderate capitalists which, through an accident in nomenclature, had come to be known as equites.[1558] It was a class that possessed the tradesman’s narrow honesty and complete indifference to all politics not connected with business. Like all classes, they were quite willing to plunder the provinces while state officials did the same; but they desired strong government more than plunder. They longed for an administration which should secure them adequate protection in the conquered world over which they had spread the network of their trade, and which should also ensure a freedom from revolution at home. Hence their wavering and yet always decisive attitude. To secure their first end they join the attacking party, to secure their second they attach themselves to the government, and their adherence or disaffection always turns the fortune of the day. It was the equites who helped the democrats to raise Marius to power, who forced their own creature to abandon his revolutionary colleague Saturninus, who ruined the schemes of the younger Drusus and set the Varian commission on the track of his adherents; it was their hostility that proved equally fatal to the schemes of Sulla and of Catiline, their commercial instincts which lifted Pompeius into power and led them at the crisis of 60 B.C. to abandon the Senate and give their whole support to Caesar. There is something tragic in the ruthless massacre of equites which ushers in the Augustan monarchy; for no class had done more for its existence and to none did it prove a greater boon.

To appreciate the issue of this struggle in which all parties were engaged, we must recognise its twofold aspect as a struggle for social and political renewal, and consider separately the fate of the detailed programme of reform and the change in the constitution to which the attacks on the Senate led. From the first point of view the efforts of the democratic party ended in an unqualified success; for every item of its programme was carried out, with the requisite modifications, by Caesar and the Principate. The agrarian question reached as near an approach to settlement as such eternal questions can attain, especially when it became absorbed into the movement of transmarine colonisation which was employed in the Principate for poorer citizens and for veterans. The extension of the franchise was completed, so far as the territory south of the Alps was concerned, by Caesar’s renewal of the gift of citizenship to the Transpadanes and Augustus’ incorporation of their territory as a part of Italy,[1559] while the Principate was liberal with the conferment of Latin rights on provinces, such as Sicily, the Maritime Alps, and Spain, and the full citizenship gradually won its way in the provincial world by individual grants and recruiting for the legions. The laws of debt were emended by the just bankruptcy laws of Caesar and Augustus, and even the leges frumentariae required but a slight modification to make them a genuine scheme of poor-relief.[1560] The equites, too, the class to whom C. Gracchus had given an official recognition, became a still more recognised order under the Principate and a most useful wheel in the administrative machinery.

It is more difficult to decide whether the radical change of government to which the agitation led can be considered a genuine triumph for the reformers. Military monarchy may be regretted by those who see in it a confession of incapacity to combine imperial government with Republican institutions; but, from the point of view of the reforming party, it was only a disappointment if we conceive that their leaders thought that government by comitia might replace the rule of the Senate. But there is hardly a trace of this idea. No effort was made throughout the whole of this period to make the comitia a workable or really democratic institution; and personal rule, as the only expression of democracy, had asserted itself at the beginning of the movement. The only open question was whether it should be a Periclean tyrannis of the type enjoyed by C. Gracchus or a Napoleonic rule such as that of Caesar. As a matter of fact the Principate learnt a lesson from both solutions—that of the Gracchan and that of the Marian epoch—and established itself on a joint basis of the tribunicia potestas and the proconsulare imperium.

If we look round for other possible solutions, we find two faintly foreshadowed, but both doomed to failure. The first was a reformed Senate, not merely the existing body artificially bolstered up, as it had been by Sulla, but a body really made representative of Italy through the free inclusion of novi homines. The idea was held by Cicero, but no scheme was ever considered which would have made it a reality. For such an object to be attained, election to those magistracies from which the Senate was recruited must cease to be in the hands of the Roman comitia; but no one to our knowledge, with the exception of the Emperor Augustus, thought of the possibility of election by the municipal towns.[1561] Help might also have been looked for from a reformed assembly, one that had been made representative of the whole Italian people. The allies nearly worked out this means of salvation for themselves,[1562] but the magnitude of Rome was itself a stumbling-block to the solution of the problem on federal lines. We can hardly blame the thinkers of the day for not seeing the possibility of a representative assembly of a national kind; for the Italian, like the Greek mind, though familiar enough with the idea of the representation of cities, had not advanced to the conception of the representation of individuals through electoral districts.

The reason why the creation of an Italian senate or an Italian assembly might have warded off the monarchy is that such a body might have commanded respect even from the army of the provinces. This correspondence in sentiment might, it is true, have required that the army should remain mainly Italian; and Augustus’ attempt to give Italy something of a representative character may have been abandoned through fear of a conflict between an army which was becoming provincial in personnel and an Italian proletariate, when the choice of a Princeps had to be decided. Yet, although circumstances were hostile to a fusion of Italy and the provinces, and the Principate was not to be Italian, one should not forget that it had something of a popular character. The Roman citizens of the legions who made the Princeps[1563] were of a better type than the plebs urbana of Rome; for not only was the freedman element eliminated, but discipline had with them replaced demoralisation, their life was lived under healthier influences, and although they were often moved to their selection by a mere esprit de corps, they generally succeeded in placing a very capable man on the throne.

Caesar was the first sole ruler of Rome; and we might be inclined to imagine that the powers which he enjoyed were consciously assumed merely as those of a provisional government, were there not signs that towards the close of his life he was satisfied with the solution which he had adopted. The early dictatorships of 49 and 48 B.C., the second and longer of which was only for the term of a year,[1564] were merely efforts for tiding over a crisis; and the same may perhaps be said of a later tenure of this office, which was conferred on him for ten years in 46 B.C.[1565] But in the last year of his life (44 B.C.) he entered on a perpetual dictatorship,[1566] a revival of the Roman monarchy both in reality and in name. It is true that the title rex was not assumed, out of deference to the feelings of the masses who saw in it merely a synonym of oriental despotism; and for the same reason the diadem was declined.[1567] But every educated Roman knew that the Roman monarchy had been nothing else than the unlimited imperium, and many may have believed that dictator or “master of the people” was the most significant of the titles of the king. It was, therefore, a regnum under which Rome was living,[1568] and there was no concealment of its military character, for the title imperator was now borne by the regent within the walls.[1569] This designation was a mere symbol of military command and the fullest jurisdiction; it was no description of a basis actual or future on which Caesar’s power could rest, for the unqualified imperium had no existence to the Roman mind, and, if it was to be unlimited, it must be either regal or dictatorial.

With respect to the other powers which Caesar assumed, the praefectura morum, given for three years in 45 B.C.,[1570] has the appearance of a special conferment for a given purpose; but the tribunicia potestas was granted early in his period of rule (48 B.C.) and given for life; it must have been regarded even now as the ideal complement of a lasting imperium, valuable for the inviolability it conferred and for the “civil” and popular colouring which it gave its holder. To realise the nature of Caesar’s authority by an inspection of the bases of his power needed some reflection; but none was wanted to mark the external symbols of royalty—the triumphal robe, the portrait-head on coins, the statue placed amongst those of the seven kings in the Capitol. These were the symbols that were taken as tests of what the future monarchy was to be, and which reduced, not merely rigid constitutionalists, but even moderates and men of compromise, to despair. With Caesar conciliation was not accompanied by its requisite complement, compromise; he was tender of everything but sentiment, and did not care to estimate the force of what he must have considered mere prejudice; but, in spite of the modifications introduced into his theory of government by Augustus, it was he who pointed out that the necessary basis for the future Principate was the tribunician power combined with some kind of military imperium.

The murder of Caesar had, in words of the time, abolished the rex but not the regnum,[1571] and the Triumvirate of 43 B.C. was but a suspension of hostilities between the rival claimants. In form it was a provisional government, like that of the early Decemvirate, for the reform of the constitution, and received the sanction of the people;[1572] but so purely was it an agreement between the contending personalities that its renewal was contrived in 38 B.C. without any reference to the comitia.[1573] For ten years (38-28 B.C.) Octavian’s position was far more irregular than that of Caesar had ever been, and, even after the defeat and death of Antonius, his sole claim to power was an imperium, which had never been conferred, irregularly continued from a usurped Triumvirate. These indefinite powers resting, as he himself describes them, “on universal consent,”[1574] were essential to the accomplishment of the work that had to be done before the forms of the constitution were restored. The consulships which he held did not give the requisite authority, and the value of the tribunicia potestas, which he had possessed from 36 B.C.,[1575] was negative rather than positive. In the course of his sixth consulship (28 B.C.) he considered the time to be ripe for a final settlement. It assumed the form of a surrender. He issued a solemn decree in which he cancelled the irregular ordinances of the Triumvirate,[1576] and he fixed January 1, 27 B.C. as the date on which he would divest himself of his extraordinary power.[1577] On this day “he gave back the commonwealth to the discretionary power of Senate and people.”[1578] A return was expected, and had doubtless been arranged, but the gift made by the grateful Senate seemed small in comparison with what had been surrendered. It was enough, however, to make the abdicating monarch a very powerful head of the executive of the state. Augustus, as he was now for the first time designated,[1579] was given imperium for ten years with the government of certain specified provinces,[1580] while at the same time he was made commander-in-chief for life of all the forces of the state, with the sole right of raising levies and of making war and of declaring peace.[1581] Yearly consulships were still the chief basis of his dignity, if not of his authority, in the capital, while the tribunician power still continued but was as yet sparingly employed.

Such was the settlement that was greeted, officially and unofficially, as a restoration of the Republic,[1582] but which later writers held, with equal reason, to be the commencement of the legitimate monarchy.[1583] The weak point in the arrangement was the authority of the prince within the capital. The consulship had admirable Republican associations, but was hemmed in by awkward limitations. Its jurisdiction had become almost extinct, its initiative was fettered by colleagueship, it was technically not the highest power in the state, and the constant usurpation by the Princeps of one of the two offices of highest titular rank was a bar to the legitimate ambition of aspiring nobles. Hence the need for the new settlement which was attained in 23 B.C. The details of the change, which gave the Principate its final form, will be described elsewhere. Its essential features were that the constant investiture with the consulship was dispensed with, that the tribunicia potestas was shifted from the background to become the chief symbol of authority for the Princeps in Rome and Italy, and that an imperium, which must now be described as proconsulare, was renewed and perhaps increased.[1584] Further isolated grants were made to fill up the gaps in this heterogeneous association of powers, and to elevate the new extraordinary magistrate of the Republic to the requisite height above the ordinary officials of the state.