State and family in early Rome

UBRARY

OF

SAN DIEGO

STATE AND FAMILY

IN

EARLY ROME

LONDON : GEORGE BELL AND SONS
PORTUGAL ST. LINCOLN'S INN, W.C.
CAMBRIDGE : DEIGHTON, BELL & CO.
NEW YORK : THE MACMILLAN CO.
BOMBAY : A. H. WHEELER & CO.

IN

EARLY ROME

BY

CHARLES W. L. LAUNSPACH

OF THE MIDDLE TEMPLE
BARRISTER-AT-LAW

Nach ewigen, ehernen
Grossen Gesetzen
Miissen wir Alle
Unseres Daseins
Kreislauf vollenden.

GOETHE.

Yet I doubt not thro' the ages one increasing purpose runs.

TENNYSON.

LONDON

GEORGE BELL AND SONS

1908

•CHISWICK PRESS : CHARLES WHITTINGHAM AND CO.
TOOKS COURT, CHANCERY LANE, LONDON.

FOREWORD

r I ^HE present treatise deals only with Rome in
-L its infancy and adolescence. A considerable
portion of that period is prehistoric. Its reconstruc-
tion— faulty at the best — demands a strong effort of
synthesis; and whilst the subject is calculated to
stimulate the imagination, the paucity of the avail-
able authentic material has lent itself to many inter-
pretations provocative of controversy. The central
idea that has furnished my text is that the early
Roman State was a conscious imitation of the ancient
Gens or ancient Family, that its theory of Govern-
ment was founded upon the relations existing be-
tween kinsmen, and that these, again, were deter-
mined by religious notions which later became
transformed through developments within the City
and external influences. To call such a State, in
its earliest days, either a democracy, an autocracy,
or an aristocracy might be verbally true; but it
would be substantially false. It is not explainable
without reference to the religious notions of the
Romans before they came under the direct influence
of the Greek theogony. How largely the religious

vi FOREWORD

element underlies what on the surface appear to
be purely political and economic controversies, has
been shown by M. Fustel de Coulanges. Without
some such key, the struggles of the patrician and
plebeian orders, for instance, are to my mind merely
bewildering. But when we perceive how self-interest
is buttressed or antagonized by traditional, though
doubtless obsolescent, religious prejudices, politics
and economics drop into their proper perspective,
and we may impartially respect the standpoints of
all parties.

Such struggles could only have been waged with-
out mutual destruction in a community of consider-
able political maturity, which could appreciate the
nature of civic freedom and dignity. There was no
law-giver of transcendent genius to guide, and few
peoples have owed less to the teaching of their
leaders. If we would enumerate the men of surpass-
ing intellect who flourished under the Republic, our
tale (unless we include the " Uebermensch " Sulla)
must begin with the great Julius and end with his
august nephew, both of whom belong to a decadent
age. For earlier examples of eminence we are
thrown back upon splendid mediocrities like the
persevering Cunctative Fabius, the well-intentioned
Camillus, and the highly respectable Cato. Probably
the development of the Roman people was excep-
tional. Owing perhaps to the strategic accident of

FOREWORD vii

its position, Rome started almost at the outset of
its career as a conquering State; and before the
regal or oligarchical power had time to become
hereditary and despotic, as was probably the case
with most of the older Cities, the compulsory and
voluntary influx of plebeians into the rising com-
munity leavened the old burgher stock with immi-
grants who valued their hard-won rights as free
citizens in proportion to the trouble they had been
at to obtain them. Had the patriciate been less
profuse of its blood upon the battle-field, and the
new-comers less numerous or less mettlesome, the
former might have retained its privileges, or at most
grudgingly dispensed them upon a graduated scale,
and a caste-system, rigid and baleful, might, as in
Hindustan, have determined the development of
the later civilization.

It is for this reason that the history of early Rome
contrasts so strikingly with that of the ensuing ages.
The first epoch may be said to have closed on the
day — in the year of the City 490 (264 B.C.) — when
a fleet conveyed Roman troops across the Straits
of Messina, inaugurating a new era of extra-Italian
conquest. Theretofore the citizen-soldier had en-
countered, in peace and war, men whose habits, in-
stitutions and civilization in the main resembled
his own. It was not difficult to absorb, or at least to
manage, subject communities which presented so

viii FOREWORD

many points of contact; and so long as Roman ex-
pansion was confined to the Peninsula, domestic
strife and external warfare only developed and em-
phasized the national character. Very different were
the effects of the wars beyond seas. The Roman-
izing process in Italy was seriously disturbed by
the irruption of Hannibal, and the first two Punic
Wars exercised a disintegrating influence upon the
old- Roman system itself. The ensuing rapid expan-
sion brought about economic changes which trans-
formed the conditions of national life, whilst the
exotic elements crowding eagerly to the metropolis
assisted to modify and degrade the native character.
The home-keeping population was weaned from the
hardening process of war, but it did not appreciably
progress in the arts of peace. The leading class of
the Optimates found, indeed, unlimited opportunities
of enrichment, legitimate and otherwise. But the
stolid good sense of the humbler citizen was from
the beginning hopelessly outclassed by the nimble
brain and facile commercial morals of Greek, Syrian,
Egyptian, African, and Jew. A wise oligarchy would
have endeavoured by drastic measures to protect the
solid elements upon which the national greatness had
been reared. But politics had sunk to an unworthy
rivalry of coteries, which successively maintained
their power by flattering and bribing the populace at
the expense of the Commonwealth. It was to the

FOREWORD ix

convenience of all the parties contending for popular
favour that the individual citizen should be shallow,
improvident, unambitious, and consequently easily
led or cheaply purchasable. The franchise, in the
absence of representative government, was in prac-
tice confined to those of the electorate who either
resided within Rome, or had means and leisure to
travel thither upon occasion. To govern and specu-
late at will the Optimates needed but to buy the
favour of the few effective voters, and the resident
citizen was amused with shows, and fed at the ex-
pense of worthier populations. The inevitable con-
sequence was the extinction of the middle class, and
a widening of the gap between the higher and lower
orders. Never had the old-time patricians and ple-
beians found themselves at such opposite poles as
now stood " Known " and " Unknown " — " Nobiles "
and " Ignobiles."

It must not be supposed that the Roman nation
had become utterly worthless. The Marian and
Sullan proscriptions might decimate the leading
houses, and economic pressure drive the farmer off
the land; the places of the former largely fell to
adventurers, whilst hordes of slaves occupied what
had been the homesteads of a free peasantry. Yet
there survived sufficient administrative talent, honesty
of purpose, and dignity of character to save the
Republic, if only they could have had free play in

x FOREWORD

public life. But the process of pauperizing the urban
electorate had acquired a momentum which the best
elements were powerless to check, and the citizen
who lightly surrendered his liberty for free tickets
and free food had small heed for those who offered
only hard truths and unpalatable advice. Respect-
able men of the wealthier classes, disgusted, held
aloof from politics. The sturdier and more inde-
pendent of the poorer orders, finding no employment
at home, either emigrated or joined the legions.

The early Roman Populus had been both Army
and People, and only levies of allied and kindred com-
munities had fought side by side with Roman troops.
Frequent and protracted employment of large ex-
peditionary forces now necessitated a standing army,
partly recruited from non-citizen, and even non-
Italian elements. What remained of Roman virtue
was found beneath the eagles, where the linesman's
steady bravery still repaired the general's blunders,
the short sword still pierced its way to victory over
Asian dart and Keltic claymore. The Warrior be-
came distinct from the Burgher, and the time-
honoured form of address: Quirites! was degraded
to a term of reproach to lash self-respect into a
mutinous legion. The professional soldier had neither
cause nor will to disguise his scorn of the shiftless
civilian populace. He yielded obedience not to any
civil power but to his own military leaders, and

FOREWORD xi

scantily supplied the quality of disciplined patriotism
by a gladiator-like esprit de corps.

As the moral fibre of the civilian citizen weakened,
the Constitution fell into contempt, and in the
tumultuous assemblies of the people legislation was
carried as much by violence as by vote. From the
rioter's bludgeon to the soldier's sword is facile
transition, and mob rule passes easily through the
disorder of faction to a military dictatorship. The
reign of law was in the end restored. An all-powerful
Administration re-established decent government,
sheltered property and the amenities of life, and
permitted commerce, arts, science, and philosophy
to flourish with unheard-of splendour. But it was at
the price of freedom, which could no longer co-exist
with order and was willingly surrendered by a dis-
tracted nation. The Gabinian and Manilian Laws
had rehearsed the stratocracy of the first Triumvirate;
and after the renewed convulsions which followed
Caesar's murder the world gladly found refuge in
Octavian's ordered despotism.

Antiquity records struggles only outwardly dis-
similar from those in constant operation around us —
political and economic collisions between races blindly
working out their destiny, domestic conflicts between
privileged and unprivileged, rulers and ruled, rich
and poor, which at this distance of time we are able
to review without passion, remembering that every

xii FOREWORD

huge controversy, it has been well said, is not so
much between Right and Wrong, as between Right
and Right. I am conscious that the present-day
proneness to compare modern with ancient civiliza-
tion must be indulged with caution. In all ages long
periods of prosperity and luxury are attended with
similar resultant evils; but, to say nothing of the
influence of religion (with us happily still an active
force), the leading nations of to-day are several, and
their unwholesome tendencies are largely repressed
by mutual contemplation and a self-consciousness
denied to the Roman-Greek world. Nevertheless,
a study of the rise and decline of the Roman Com-
monwealth suggests reflections and conclusions which
may be applied to many present-day conditions, and
in dealing with some problems which now vex us,
ancient history provides warning, if not counsel.

All systems of human association have their day,
and yield to others. Back to the infancy of mankind,
which the mists of time conceal from mortal view, we
may imagine that every social institution, however
ancient, has at one time displaced a yet older. Yet
though Change be the Law, even where Stability
seems greatest, it is evident that the standard of
speed differs enormously. The Western world, dur-
ing its comparatively brief career, has witnessed re-
peatedly the rise, spread, and then the gradual de-
struction, of supposedly durable institutions, whilst

FOREWORD xiii

highly organized societies of Asia and backward
races of Africa have resembled each other in re-
maining only slightly affected by the passage of
time. Judged from a cosmopolitan standpoint, the
development of European culture, however excel-
lent in itself, has proceeded upon abnormal lines,
and the resulting uncertainty of its future affords
additional reason for careful scrutiny of its past.
Change is not necessarily identical with what we
call Progress, and even a real reform in one age
may survive to work havoc in the next. Moreover,
progress and retrogression appear to have co-existed
at every stage of European history; and although
human life nowadays is probably, upon balance,
more tolerable than at any known preceding period,
there is little to indicate whether we are still heading
towards perfection or already treading the backward
sweep of an enormous circle.

C. W. L. L.

PLOWDEN BUILDINGS, TEMPLE,
May, 1908.

CONTENTS

CHAPTER PAGE

TABLE OF ABBREVIATED REFERENCES . xvii

I. ORIGIN OF THE ROMANS i
II. THE RELIGIOUS BASIS OF ROMAN

SOCIETY . . . . . .15

III. THE GENTES ..... 48

IV. THE EARLY ROMAN CONSTITUTION . 65
V. THE REFORMED CONSTITUTION OF

SERVIUS TULLIUS . . . .81
VI. THE REVOLT OF THE ARISTOCRACY . 92
VII. THE STRUGGLE OF THE ORDERS BEGINS 100
VIII. THE DECEMVIRATE AND THE DAWN OF

WRITTEN LAW . . . .no
IX. FURTHER CONSTITUTIONAL DEVELOP-
MENTS TO THE BEGINNING OF THE

PUNIC WARS . . . . .131

X. MARRIAGE . . . . . .148

XI. PATRIA POTESTAS .... 202

XII. SUCCESSION ...... 249

INDEX .... . . 283

xv

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(Bale, 1843.)

BLACKSTONE, SIR WILLIAM. Commentaries on the Laws of Eng-
land. (Dublin, 1771.)
BOUCH£-LECLERCQ, AUGUSTE. Manuel des Institutions Romaines.

(Paris, 1886.)
BRYCE, JAMES. Studies in History and Jurisprudence. (Oxford,

1901.)

CAESAR, C. JULIUS. De Bello Gallico.
CATO, M. PORCIUS (CENSORIUS). De Re Rustica.
CATULLUS, C. VALERIUS. Carmina.
CICERO, M. TULLIUS. De Divinatione. De Natura Deorum. Pro

Domo Sua. De Legibus. De Republica. De Officiis. De

Oratore. Pro L. Murena. In Q. Caecilium.
CLARK, E. C. Early Roman Law. The Regal Period. (London,

1872.)
COHN (CONRAT), MAX. Beitrage zur Bearbeitung des romischen

Rechts.

COULANGES, FUSTEL DE. La Cite" Antique. (Paris, 1903.)
CUQ, EDOUARD. Les Institutions juridiques des Remains (L'An-

cien Droit). (Paris, 1904.)
CZYHLARZ, CARL VON. Lehrbuch der Institutionen des romischen

Rechtes. (Prague, 1889.)
DIONYSIUS (of Halicarnassus). French translation by Bellanger.

(Paris, 1807.)
FERRERO, GUGLIELMO. The Greatness and Decline of Rome.

(Zimmern's translation, London, 1907.)
FESTUS, SEXTUS POMPEIUS. De Verborum Significatione.
FLORUS, L. ANNAEUS. Epitome Rerum Romanarum.

b

xviii ABBREVIATED REFERENCES

FOWLER, W. WARDE. Roman Festivals of the Period of the Re-
public.

FRIEDLAENDER, LUDWIG. Darstellungen aus der Sittengeschichte
Roms. (Leipzig, 1888.)

GAIUS. Institutes. (Poste's edition, 1904.)

GELLIUS, AULUS. Noctes Atticae.

GIBBON, EDWARD. Decline and Fall of the Roman Empire.

GIDE, PAUL. Etude sur la condition privee de la femme. (Paris,
1867.)

GIRARD, PAUL FREDERIC. Manuel e"lementaire de Droit Remain.
(Paris, 1901.)

GLADSTONE, Rx. HON. W. E. Juventus Mundi. The Gods and
Men of the Heroic Ages. (London, 1869.)

HAECKEL, ERNST. Natiirliche Schopfungsgeschichte. (Berlin,
1879.)

HALLAM, HENRY. Europe during the Middle Ages. (Fourth
edition.)

HOELDER, EDUARD. Die Stellung des romischen Erben.

HOLMES, O. W., JUNR. The Common Law. (London, 1882.)

Q. HORATIUS FLACCUS. Carmina. Satirae.

HUNTER, W. A. A Systematic and Historical Exposition of
Roman Law. (London, 1903.)

IHERING, RUDOLPH VON. Entwickelungsgeschichte des rom-
ischen Rechts. (Leipzig, 1894.) Geist des romischen Rechts
auf den verschiedenen Stufen seiner Entwickelung. (Leip-
zig, 1852.) Vorgeschichte der Indo-Europaer. (Leipzig,
1894.)

IHNE, WILHELM. Forschungen auf dem Gebiete der romischen
Verfassungsgeschichte. (Frankfort-on-Maine, 1847.)

JUSTINIAN. Codex. (Krueger, Berlin, 1877.) Digest. (Momm-
sen, Berlin, 1870.) Institutes. (Moyle, 1903; Sandars,
1898.)

JUVENALIS, DECIUS JUNIUS. Satirae.

KARLOWA, OTTO. Romische Rechtsgeschichte. (Leipzig, 1885.)

KLEINEIDAM, FEODOR. Die Personalexecution der XII Tafeln.
(Breslau, 1904.)

LECKY, W. E. H. History of European Morals from Augustus
to Charlemagne. (London, 1892.)

ABBREVIATED REFERENCES xix

LEONHARD, RUDOLF. Institutionen des romischen Rechts. (Leip-
zig, 1894.)

T. LIVIUS PATAVINUS. Historiae ab Urbe Condita.

MACROBIUS, AMBROSIUS THEODOSIUS. Commentarius in Som-
nium Scipionis. Saturnalia.

MAINE, SIR HENRY SUMNER. Ancient Law. (London, 1907.)
The Early History of Institutions. (London, 1893.) Disser-
tations on Early Law and Custom. (London, 1891.)

MOMMSEN, TIIEODOR. Romische Forschungen. (Berlin, 1864.)
Romische Geschichte. (Berlin, 1903.) Romisches Staats-
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MUIRHEAD, JAMES. Historical Introduction to the Private Law
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NIEBUHR, B. G. Romische Geschichte. (Berlin, 1853.)

P. OVIDIUS NASO. Amores. Fasti. Metamorphoses.

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PICTET, ADOLPHE. Les Origines Indo-Europeennes. (Paris,

1859-)

C. PLINIUS SECUNDUS. Historia Naturalis.
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PRELLER, LUDWIG. Romische Mythologie. (Berlin, 1858.)
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ROSSBACH, AUGUST. Untersuchungen iiber die romische Ehe.

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Die Giiltigkeit der Plebiscite. (Berlin, 1884.)
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xx ABBREVIATED REFERENCES

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STATE AND FAMILY IN EARLY
ROME

CHAPTER I

ORIGIN OF THE ROMANS

" I ^HE principles underlying the primitive polities

JL of Greece and Italy are borrowed essentially

from the domestic system which appears to have

prevailed among Aryan l peoples for many ages be-

1 By "Aryan" I mean throughout collectively the great racial
group which embraces Keltic, Scandinavian, Teutonic, Graeco-
Italic, Slavic, Iranian and Hindu members. The name (said to be
derived from the Sanskrit Arya = lord, land-lord), though frequently
used on the Continent to designate only the Asiatic wing of the
family, is appropriately applied to the whole group of nations
whose most prominent members have so long controlled the
world's destiny. The denomination " Indo-Germanic " was once
preferred by German scientists, " for no other assignable reason,"
says Whitney (Life and Growth of Language, p. 180), "than
that it contains the foreign appellation of their own particular
branch, as given by their conquerors and teachers, the Romans."
It is not more, indeed it is less, justified than " Indo-Keltic," and
is now generally discarded on the Continent for " Indo-European."
But even the latter term labours under the objection that it appears
to exclude some races (e.g., Persians) which it is intended to
embrace, and to include others (e.g., Magyars and Finns) which
are racial strangers. Haeckel, Natiirliche Schopfungsgeschichte,
Vortrag xxiii, divided the " Mediterranean " or " Indo-Atlantic "

B

2 ORIGIN OF THE ROMANS

fore Athens and Rome had been heard of. Inas-
much as the State was a reflex of the Clan or the
Family, later radical changes in the body politic
almost necessarily reacted upon those root-ideas of
domestic association on which the framework of
society rested. The internal political development
of Rome during the first centuries of its existence
was at once the outcome of institutions which had
become unsuitable to the growing Commonwealth,
and the driving-power which in the end modified
those institutions almost beyond recognition. Con-
sequently, the study of Roman history — certainly of
early Roman history — is most usefully coupled with
an examination of the primitive rules and customs
(the expression " law " is somewhat premature)
which governed domestic relations among the most
remarkable people of antiquity.

For many centuries later, European culture was
dominated almost exclusively by classical influences.
And naturally so, for the European system, as gauged
by the standard of to-day, lagged far behind the
vanished Graeco- Roman civilization, until an assert-
ive middle class brought to a world impatient of
feudal trammels the same emancipation which the
restlessness of the Romanized plebs had accomplished
two thousand years previously for hide-bound ancient

species chiefly into "Indo- Germans" and " Hamosemites," sub-
dividing the former into " Slavo-Germans " and " Ario-Romans,"
and restricting the term Aryan to Iranians and Hindus. See also
Pictet, Origines Indo-Europ., i, 27 ff.

ORIGIN OF THE ROMANS 3

Latium. Yet only the modern world, relying less
upon brilliant hypothesis than upon patient research,
has bestowed upon ancient principles an amount of
analytical attention at all commensurate with their
importance. Without some understanding of the
internal working of archaic societies, ancient history
becomes (what, indeed, modern history, as taught in
schools, likewise and for a similar reason tends to
become) a string of highly-coloured biographies,
interspersed with more or less apocryphal accounts
of personal exploits and adventures. Every one has
heard of the Horatii and Curiatii, but few can ap-
preciate the habit of mind which rendered the fable
credible and intelligible to succeeding generations.
And whilst every schoolboy is familiar with the
battles of Poictiers and Azincourt, few adults have
reviewed the economic causes of the Hundred Years'
War, for which Edward's claim to the French throne
formed a convenient pretext.

For the purpose of this treatise it is sufficient to
confine it in point of time mainly to the epoch pre-
ceding the great Carthaginian struggle, and in point
of topic to the internal, domestic and constitutional
developments of Rome during that epoch. With
the deliberate knowledge that I Nam thereby alienat-
ing the sympathy of all those who, to use Mdrimee's
phrase, " n'aiment dans 1'histoire que les anecdotes,"
I purpose to rigidly exclude as irrelevant the merely
picturesque and dramatic. Further, I am constrained
to almost entirely disregard foreign politics, military

4 ORIGIN OF THE ROMANS

conquests, colonizations, biographical matter, and
various episodes of tradition or quasi-history which
bulk so largely in the Roman chronicles, and have
received from modern writers certainly not less than
their due share of attention. Some general know-
ledge of Rome's history is therefore necessarily im-
puted to the reader.

Beginning with the question of the origin of the
Roman people, I accordingly dismiss unnoticed the
romantic legends with which poets and historians of
after-times, writing in the glamour of a splendid
Empire, sought to explain the gradual transformation
of a ring of rustic habitations around the Palatine
Hill into the pivot of Occidental civilization and
the world's centre of gravity. The foundation of
Rome was not a marvellous, not even an unusual
event; the first Romans, springing from the same
stock and living under the same conditions as their
neighbours, surpassed the latter in intellect1 and
physique2 as little as they could claim superiority
by virtue of divine dispensation.

1 Mommsen, Romische Geschichte, i, 304: "Das ganze
romische Wesen lief darauf hinaus, die Burger durchschnittlich
zu tuchtigen Mannern heranzuziehen, geniale Naturen aber nicht
emporkommen zu lassen."

2 Probably the Latins were slighter men than the Etruscans,
"obesus Etruscus" (Catullus, Carm. 39). The huge forms of the
barbarian invaders are frequently alluded to in literature: "Pler-
umque omnibus Gallis prae magnitudine corporum suorum brevi-
tas nostra contemptui est " (Caesar, Bell. Gall., ii, 30); cf. Juvenal,
Sat. viii, speaking of the slaughtered Cimbri.

ORIGIN OF THE ROMANS 5

At some remote period, the approximate date of
which it is hazardous to estimate, one great branch
of the Aryan race, urged possibly by the progressive
desiccation of the country, betook itself from its
central Asian home westwards into Europe. An
offshoot, now called the Graeco- Italic family, separ-
ated, in the course of its wanderings, from its Keltic,
Slav, and Teutonic kinsmen, and, deflecting south-
wards, finally occupied what are now the Balkan and
Italian peninsulas.1

At the dawn of history we discern in what, for
convenience, we will call Italy, although that name
was originally confined to the southern extremity of
the peninsula,2 three racially distinct groups of in-
habitants: the Japigians, the Etruscans or Tyr-
rhenians, and the tribes of Central Italy, which latter

1 The Greeks and the Italians (applying the latter term pre-
maturely to all the tribes of Central Italy) are generally deemed
sister nations, a view supported by affinities of language and
institutions. But the Kelts are by some considered more closely
allied to the Graeco-Italic race than Slavs or Teutons, and to
stand (despite very divergent characteristics) in closer relationship
to the Italic tribes than even the Greeks. See Haeckel's Stamm-
baum der Indo-germanischen Rasse in his Natiirliche Schopf-
ungsgeschichte, xxiii. Vortrag. Cf. Mommsen's Romische Ge-
schichte, i, 327. It is of course possible, and even probable, that
the Aryan races known to us had been preceded by others, whom
the later invaders exterminated or absorbed.

2 The term "Italy" was gradually extended to include the
centre of the peninsula. Under Augustus, Italy was created an
official administrative unit, divided into eleven regions. It then
corresponded very nearly with the present Kingdom, plus Istria
and minus Sicily and Sardinia.

6 ORIGIN OF THE ROMANS

we are justified in collectively denominating the
Italic race. The vexed question of the " aboriginal "
inhabitants has no bearing upon our subject, and
need not detain us. Neither are we concerned with
the Japigians, who at a comparatively early period
became absorbed in the powerful Greekish com-
munities established by immigration from beyond
the sea. The origin and exact position in the Aryan
family of the Etruscans l ( = Ras-na or Rasena),
long the leading power in the peninsula, are still
doubtful. Our information of the Central Italic
tribes is less unsatisfactory, and with them alone we
are immediately concerned. They may be divided
into a Western (Latin) and an Eastern (Umbrian)
group, including, to the South, the powerful Samnite
nation, destined to become Rome's chief rival for
the supremacy over Italy. Language, customs,
political and religious institutions point to close
racial affinity between the Italiot communities, and
to the similarity of their social systems. A number
of individuals owning obedience to a common (real
or reputed) kinsman, generally long-deceased and
not always ascertainable, constituted a Gens, having
community of cult, sanctuary, altar, and festivals. The

1 Cf. Preller, Romische Mythologie, i, 12. As to the high
probability that the Etruscan language belonged to the Indo-
European group, see Whitney, The Life and Growth of Lan-
guage, p. 1 88. Mommsen, Romische Geschichte, i, 118-119, is
less positive. Schj^tt, Studien zur alten Geschichte, holds that
the Etruscans were racially allied with the Phoenicians; cf.
Tacitus, Ann., iv, 55.

ORIGIN OF THE ROMANS 7

exigences of a defensive policy, or the imperceptible
action of economics, sometimes produced coalitions
of gentes which, if they endured, evolved into civitates
or cities. Offshoots of these frequently arose through
voluntary or compulsory emigration of some mem-
bers of a community into the outside world, to
fare as the gods might direct. Most of those emi-
grants probably perished; the remnant, following
any indication which imagination might construe as
a sign from above, set up altars over sods of earth
brought from the old home, founded new settlements,
and under propitious circumstances emerged as new
communities, cherishing the institutions of the parent
stock and generally maintaining some connection
with it.

Although the notion of kinsmanship was at the
bottom of all institutions which bound men together,
the conventional basis of solidarity was not Kin nor
Race, but Ritual. The more frequently any two persons
found themselves associated in religious observances,
the closer was the bond between them. Members of
the same gens daily worshipped the manes of their
common ancestors. When the gentes began to break
up into families, relations between gentiles became
subordinated to the tie which claimed each man's
first duty for his actual living ancestor and his more
immediate forbears; but their association with each
other remained more intimate than with members of
other gentes, whom they joined in periodically wor-
shipping the tutelary deities of a common city. Finally,

8 ORIGIN OF THE ROMANS

a common cult, performed periodically though at in-
frequent intervals, held most of the cities of Latium
( = the " Broad Plain") in a loose connection, which
facilitated intermarriage and contractual intercourse
among the members, and in times of common danger
might induce united action.1

As presiding head and ritual-centre of the loose
Latin federation, Alba Longa (the " Long White
Town," or, as we should have said in England,
" Long Whitton ") stood towards the other tinier
States of Latium in the relation of a mother city
to its colonies. To Alba repaired periodically re-
presentatives of the federated cities for the joint
celebration of the feriae Latinae, and in all probability
also for the discussion of temporal matters of com-
mon interest. During these times, peace reigned
throughout Latium, and the cities granted each
other's members safe conduct: but otherwise, the
federal bond neither prevented individual cities from
warring together, nor, apparently, necessarily obliged
them to act as one in a federal campaign against an
external enemy.

Among the youngest of the Latin cities was Rome,2
to whose settlement three separate tribes, the Ram-
nians, Titians, and Luceres, are said to have contri-
buted. Ancient writers claim for them, respectively, a

1 Mommsen, Staatsrecht, iii, c. Der latinische Stammbund.

2 Cf. Livy, ii, 45. The taunt " upstart " would naturally sting a
community which asserted religious as well as political supremacy
over older subject cities.

ORIGIN OF THE ROMANS 9

Latin, Sabine, and Etruscan origin, apparently upon
the assumption that the astonishing development of
the Roman Commonwealth, almost from its very
commencement, required the concentration in the
new nation of characteristics of the sturdiest races.
The theory might appeal to Englishmen, who trace
their own descent from the fiercest and worthiest
peoples of the North, but the evidence supporting
it is distinctly inconclusive, and our positive know-
ledge of the earliest Romans points in the contrary
direction, namely, to a remarkable racial homo-
geneousness. That the Ramnians were Latins is
almost universally admitted, and as they gave their
name to the City, they may be safely regarded as the
predominant element. The Sabines belonged to the
Eastern, or Umbro-Sabellian, wing of the Italic
race, and differed from the Latins less, probably,
than the Danish invaders from Alfred's Saxons.
The Latin origin of the Luceres is not less likely
than any other: the evidence of their immigration
from Etruria is uncertain, and not very probable.
In point of race, language, and ritual, Etruscans
diverged widely from Latins and Sabellians, and
although the commercial intercourse existing from
time immemorial between the two sides of the
Tiber left numerous traces, there is nothing to
denote unmistakably the presence of any important
Etruscan element in the budding Roman nation.1

1 Cf. Mommsen, Romische Geschichte, i, c. 4: " die unverstan-

io -ORIGIN OF THE ROMANS

It is most probable that long before Rome existed,
the progenitors of its founders lived as colonists or
clients of Alba along the south bank of the Tiber,
and engaged in rude commerce (the chief export
being cattle) as well as in agriculture. Such a popu-
lation would naturally include the usual complement
of women and children. The theory of the founda-
tion of Rome by bands of male adventurers is in-
herently improbable, and discredited by circum-
stances. The legend of the rape of the Sabine
women, when analyzed, falls to the ground as his-
torically unnecessary and contrary to prevailing
contemporary notions.1

The generally received date of the foundation of
Rome is the year B.C. 753. In reality, it would per-
haps be difficult, if we knew the whole of the facts,
to assign any one year to the event. Rome was not
built in a day — nor in a year. A central position,
desirable from the point of view both of mercantile
convenience and of hygiene, attracted and united
the shrewd and thrifty riparian dwellers of Latium.

dige Meinung dass die romische Nation ein Mischvolk sei";
Soltau, Altromische Volksversammlungen, i, § 2. Ethnologically,
the vicus Tuscus can no more count as evidence than Hanover
Square or the Promenade des Anglais can determine the racial
constituents of England or Provence. Schj^tt would have it that
Rome was an Etruscan colony. Yet there is no certain instance
on record of an Etruscan gens having been received into the
Roman populus (like the Claudii and the Alban gentes) as we
should expect to find if kinship had existed.
1 Fustel de Coulanges, Cite Antique, 429.

ORIGIN OF THE ROMANS n

Upon the Palatine Mount, wattled and mud-daubed
habitations, sufficiently roomy to harbour numerous
inmates, sheltered cattle breeders and agriculturists,
who in certain seasons found it dangerous to dwell
in the swampy and fever-stricken plains. The settle-
ment developed on the normal lines of similar
associations, evolved a common cult, and emerged
as a new addition to the cities of Latium. As the
community advanced in importance and dignity, off-
shoots or suburbs of the City were established on the
neighbouring heights. An important accession of
political strength was derived from the coalescence
with the Palatine inhabitants of those occupying the
eminence afterwards known as the Quirinal Hill. It
may be that the union was not at first voluntary,
but the consequence of conquest by Sabine neigh-
bours.1

Agriculture, the economic mainstay of most non-
barbarous peoples, had been known to the Italic races
before their migration into the Peninsula, and the
Latin language contains many indications, some of
which are discernible in modern speech, of the ex-
tent to which husbandry entered into the daily life
of the people. But it would seem that from the
earliest period commerce, which, before the advent
of coined money, must have been mostly barter, was
also actively pursued in Rome, and the presence from
time immemorial of an important trading element
which might or might not also engage in husbandry, is
1 Ihne, Forschungen, 25, 33 ff.

12 ORIGIN OF THE ROMANS

proved by the comparatively large number of citizens
capable of bearing arms in a territory comprising
but a few score square miles. Possessed from very
early times of a seaport at the mouth of the Tiber,
the City itself lay sufficiently inland to be protected
against piratical incursions: the kindred Latin cities
lay to the south and east,1 and the Tiber, whilst af-
fording a fairly effective barrier against Etruscan
aggression, yielded a convenient vehicle of inter-
course with Etruscan trade and civilization. Com-
mercial activity, with its concomitants, a spirit of
enterprise and self-confidence, a steady influx of
wealth and population, and a progressing standard
of civilization, contributed largely to secure to Rome
in process of time the hegemony of Latium, the
supremacy over Italy, the conquest of the world.
But commercial advantages alone would not have
availed, if unaccompanied by the qualities of an
imperial race. The first impetus to the predomin-
ancy of Rome over the rest of Latium may, in-
deed, have been given by geographical accident.
The hills successively occupied by the new city
clustered too closely to admit permanently of separ-

1 " Friendly " Latium, however, despite religious, racial, com-
mercial, and social ties, was much more frequently than Etruria the
objective of the early Roman military expeditions. Excepting Veii,
with which the Romans waged constant war until its destruction
358 urbis, we find no important Etruscan town on the Tiber in
proximity to Rome. It is even doubtful whether the inhabitants
for some distance north of the Tiber were not themselves Latins
living under Etruscan overlords.

ORIGIN OF THE ROMANS 13

ate settlements, and when united, the Roman com-
munity appears to have been larger and more power-
ful than any of its neighbours. This result the
shrewd farmers and cattle-dealers could hardly have
foreseen. But they were not slow to discern the
economic advantages of the situation, once created,
and history during the ensuing centuries was moulded
by the recognition by all classes that the general
prosperity was best defended and extended by
military superiority. It was an anticipation (in an
unscrupulous and remorseless form) of the modern
doctrine that Trade follows the Flag. The rise and
progress of the Roman State appeals to us as es-
sentially a victory of national character, due not to
the genius of a few talented statesmen, but to the
high standard of the average citizen. " Moribus
antiquis stat res Romana virisque." Inferior in
brilliancy of imagination and intellectual power to
many of the peoples whom he ultimately enslaved,1
the Roman owed his triumphs first and foremost to
a deliberate blending of his private interest with
that of the State. The individual citizen was merely
a stone added to the cairn of empire. Hence his
steadfastness of purpose, his sobriety of judgement,
his sense of discipline reinforced by his family sys-

1 "Ueberall ist die romische Staatskunst mehr ausgezeichnet
durch Zahigkeit, Schlauheit und Konsequenz, als durch eine
grossartige Auffassung und rasche Ordnung der Dinge, worin ihr
vielmehr die Feinde Roms von Pyrrhos bis auf Mithradates oft
iiberlegen gewesen sind." Mommsen, Romische Geschichte,
P- 57°-

14 ORIGIN OF THE ROMANS

tem, and that moral strength which refuses to be-
lieve in failure.1 For the better appreciation of these
qualities it is now desirable to examine the con-
ditions of life amid which they evolved.

1 " Les Remains ont eu au plus haut degre cette vertu mait-
resse, la fermete de caractere, temperee par une autre vertu non
moins pre"cieuse, 1'esprit de mesure." Cuq, Institutions juridiques
des Remains, p. 74.

CHAPTER II

THE RELIGIOUS BASIS OF ROMAN SOCIETY

IN proceeding to investigate the primary institu-
tions of Rome, we must detach ourselves from
many habits of thought which we usually bring to
bear when considering modern, but which mislead
when applied to ancient, conditions. Within the
memory of middle-aged men, Europe has witnessed
two great national consolidations,1 but neither pre-
sents any true analogy with the development of the
Roman State. At bottom, the modern instinct of
nationality and patriotism mainly represents a widen-
ing of the sentiment of kinsmanship, operating as
an emotional force to consecrate, as it were, an
already existing, more or less intimate community
of material interests. But in Rome's early days
the widening process had scarcely commenced,
and, having commenced, it proceeded less upon a
theory of racial affinity than that of a common alle-
giance to and worship of determinate, special, and
(later) national gods. The Nation was essentially
an extension of the Gens, and the basis of gentile
organization was religious, or at least ritualistic.
Strangers in blood were brothers if they worshipped
1 The Kingdom of Italy and the German Empire.

16 THE RELIGIOUS BASIS

at the same house-altar; brothers by blood became
strangers when one was banished from it. And

o

again, men were fellow citizens when and so long
only as they adored the same City gods ; the exile,
excluded from the cult of his City, thereby forfeited
his citizenship.

Long before Rome was founded, the Aryan races,
at least those of Greece and Italy, had progressed
beyond the cruder stages of barbarism, and their
maturing intellect, though as yet untrained and in-
experienced, had already found time and strength
for those speculations which, with endless diversity,
colour and obscure their cults.

So far as we are able to discern, the religious
system of the Aryan races, appears under the three-
fold aspect of Ancestor-worship, Hero-worship, and
Nature-worship. It seems highly probable that the
first prompted the second. Whether the cult of the
Ancestor preceded that of Nature, or contrariwise,
we are not called upon here to decide.1 The com-

1 According to the Spencerian theory, all religions derive from
Ghost-worship, this being based upon the supposed existence of a
man's " other self," as manifested by dreams, insanity, disease, or
by involuntary movements, as sneezing or convulsions. To the
ghosts the savage will ascribe every abnormal and unexplained
occurrence, whether boon or misfortune, and he will desire to
placate them, as he himself would be placated, by offerings and
flattery. Out of ghost-worship in general there grew up a worship
of ancestral ghosts, to whom, under patriarchism, religious rites
became restricted. According to Spencer, Nature-worship itself
had no other origin. "The conclusion warranted by the facts
is that Nature-worship, like each of the worships previously

OF ROMAN SOCIETY 17

mon origin of the three worships, if it ever existed,
is concealed in the mists of remote antiquity. Cer-
tainly the connection is no longer distinguishable in
the religious system of Rome.1 It is therefore justifi-
able to treat the latter under the separate heads of
State or Public Religion, apparently founded upon
Nature-worship, and Family or Private religion,
which was equivalent to Ancestor-worship. Roman
notions, which claimed all the dead, however illus-
trious and however humble, for the family cult alone,
rejected the adoration, so common in Greece, of
heroes, or deified mortals, whose posthumous re-
nown had induced after-generations to associate
them with the public gods. The Romans never
elaborated any extensive cult of heroes, and such
beginnings as later ages introduced belong to a

analyzed, is a form of ancestor-worship, which has lost, in a still
greater degree, the external characters of its original. Partly by
confounding the parentage of the race with a conspicuous ob-
ject marking the natal region of the race, partly by literal inter-
pretation of birthnames, and partly by literal interpretation of
names given in eulogy, there have been produced beliefs in descent
from mountains, from the sea, from the dawn, from animals which
have become constellations, and from persons once on earth who
now appear as moon and sun. Implicitly believing the statements
of forefathers, the savage and semi-civilized have been compelled
grotesquely to combine natural powers with human attributes and
histories, and have been thus led into the strange customs of
propitiating these great terrestrial and celestial objects by such
offerings of food and blood as they habitually made to other
ancestors" (Sociology, § 193).

1 F. de Coulanges, Cite Antique, c. 4.

C

iS THE RELIGIOUS BASIS

different period from that under review.1 For present
purposes, hero-worship may be neglected.

The roots of the ancient Aryan belief must have
lain deep down in the human race. The infinity of
gods active for good and evil, the man's double or
shadow, the sacrifices, oracles, divination by signs
and portents, the shadowy after-life without adequate
provision for the reward of righteousness and punish-
ment of guilt, none of these is exclusively Aryan;
and ancestor- worship is to this day practised by
peoples so far apart, racially, intellectually, and
geographically, as the Japanese and the Bantu tribes
of Damaraland. Even the later development of cult
discloses parallelisms among Europeans and Semites
in their evolution from patriarchism to civiliza-
tion. Ancestor-worship, indeed, is not a feature of
Hebrew religion as it appears in the Bible. But the
tradition of human sacrifice, the use of flint knives
for religious purposes long after weapons of metal
were in vogue, the custom of purification, the ritual-
istic dance, the absence, in the pastoral stage, of
temples and professional sacerdocy, which then grew
up spontaneously under the influences of settled life,
the gradual transformation of the primitive deities
from moral abstractions into corporeal beings to
behold or to embrace whom is death to mortals,2

1 Preller, Romische Mythologie, i, 3; Mommsen, Romische
Geschichte, i, 165.

2 Exodus, xxxiii, 20-23. Ovid, Metam., iii:

"... Corpus mortale tumultus
Non tulit aetherios; donisque jugalibus arsit."

OF ROMAN SOCIETY 19

all these are Graeco- Roman features, yet all have
their counterpart with nations of the Old Testa-
ment.

Public Religion

The deification of natural phenomena, if it has
not lain at the root of all cults, must have originated
at a very early stage of human mind-development.
The savage, or barbarian at one remove from
savagery, living in constant, direct contact with
nature, warmed or scorched by the sun, cooled or
pierced by the wind, refreshed by the rain or drenched
by torrential downpour, now revelling in rude health,
and then a raving maniac or struck down by mys-
terious malady,1 recognizes in the unknown forces
which alternately comfort and afflict him a counter-
part of the capricious patronage and tyranny which
he unquestioningly accepts from his chief, and ex-
tends unresisted to his own dependents. He sees in
benefits and visitations the works of beings im-
measurably more potent than himself, yet not unlike
himself, since his feeble imagination cannot grasp,
nor his uncouth language express, anything removed
from the narrow scope of actual experience. Phe-
nomena, however striking, which do not directly
affect his well-being, will excite neither wonder nor
inquiry. But all things which visibly influence his
life are to him intelligently active, and therefore

1 It is curious that savages are inclined to regard all illness as
the product of malign enchantment. For them, the only " natural "
death is the violent one.

20 THE RELIGIOUS BASIS

alive. The sun, sky, earth, mountain, river, forest,
and plants, are either themselves gods or peopled
with gods, to whom are attributed every natural
disturbance — lightning, a thunderstorm, a deluge, a
drought, and all events not of an everyday descrip-
tion, as sickness caused by a poisonous herb, the
straying of cattle, or the accidental destruction of
chattels by fire. The instinct of the savage moves
him to placate by gifts and flattery the mysterious
powers, whose constant intervention evidences the
interest bestowed upon, and their irresistible sway
over, his own destiny and that of his neighbours.1

But the sharper-witted barbarian will not remain
content with a general propitiation of the gods by
offerings and adulation. He will endeavour to enlist
their sympathies, and, if possible, elicit from them
some expression of opinion as to the result, at all
events the wisdom, of any important action which
he may contemplate, a hunting expedition, a pitched
battle, a foray, a marriage, or the choice of an
abode. Strong as this impulse must be, even when
living regularly and quiescently amid familiar sur-
roundings, it must have become immeasurably in-
tensified during the wanderings of our Aryan
ancestors towards an unknown goal amid the diffi-
culties, the dangers, the terrors of vast unexplored

1 Cf. Gibbon, Decline and Fall, i, 229: "Fear has been the
original parent of superstition, and every new calamity urges
trembling mortals to deprecate the wrath of their invisible
enemies."

OF ROMAN SOCIETY 21

regions. Here, if ever, the science of consulting the
gods was precious, and would by constant practice
develop in time to a remarkable degree of virtuosity.
Events following upon certain signs would be nar-
rowly watched, and the tradition of generations would
gradually harden into a mass of set rules and for-
mulas, differing, of course, among various tribes in
accordance with divergent experiences encountered
by each. Where these experiences were communi-
cated among neighbours, certain similarities of ritual
naturally resulted, being less marked where, owing
to greater distance, inter-communication was infre-
quent. With some of the Aryan peoples the science
of divinity shows a tendency to become hereditary
in certain families. Whole tribes or groups of tribes
might, indeed, in course of time acquire the reputa-
tion of exceptional skill in divination, as was the
case with the Etruscans;1 and we learn from Caesar2
that Gaulish candidates ambitious for priestly dig-
nities sometimes crossed the sea to study divine
lore under the direction of British Druidical hiero-
phants.

Although the ancient Aryans habitually personified
natural phenomena familiar to all men, they never
clearly grasped and proclaimed the notion of a uni-
versal Deity. To them Nature, so far as it was visibly-
active, was a congeries of animated intelligences;
but a central directing Intelligence was as unthink-
able in the unseen as in the visible world. Even the

1 Cicero, De Div., i, 41. 2 De Bello Gall, vi, 13.

22 THE RELIGIOUS BASIS

same phenomenon was frequently deified under dif-
ferent names by tribes who failed to recognize that
their worship was in substance identical. One of the
most ancient deities was Mars. But although he
was worshipped under various and sometimes very
similar names throughout the Italian peninsula, each
city considered its own Mars as distinct from every
other. When the inhabitants of the Quirinal Hill
federated with the Palatine Romans, their god
Quirinus continued to enjoy a separate cult, with its
flamen and its priestly college, alongside that of the
Palatine Mars, from whom he was otherwise undis-
tinguishable. Yet, especially in very early times, the
Roman intellect seems to have dimly apprehended
the existence of an all-pervading World-principle.
There was a leaning towards monotheism, or rather
pantheism, and, unlike the highly individualized and
humanized deities of the Greeks, the old- Roman
gods, solemn, dignified, and abstract, appear rather
as personalized fragments of the universal, intangible
Godhead.1

The religious history of the heathen Roman State
is susceptible of division into four periods. The ori-
ginal Latino-Sabine system of the first period com-
bines with the pure and formless Latin nature-
worship the ceremonial said to have been introduced
by the Sabine Kings, Titus Tatius and Numa Pom-
pilius. Characterized by simplicity, exactness, and

1 See Preller, Romische Mythologie, i, 48, 54, 62 ff.; cf. Cic.,
De Nat. Deor., ii, 2, 25.

OF ROMAN SOCIETY 23

discipline,1 it supplied the school in which the des-
tiny of the young nation was forged; it infused the
qualities and enforced the training which were to
carry the victorious eagles through all lands from
Scotland to Egypt.

The second period roughly represents the space
of time from the advent of the Tarquins to the
second Punic war. It coincides with extensive po-
litical and commercial expansion, and the introduc-
tion of important foreign influences. Accordingly,
grafted upon the old Latin and Sabine stock, we
find Etruscan growths, and Hellenic elements, ac-
quired first through Etruria (always largely recept-
ive of Greek ideas), and later by direct intercourse
with Greece and Greekish colonies. Chiefly charac-
teristic of this period we note :

1. The multiplication of gods and cults, the direct
or indirect result of conquest. A number of stranger
gods are forcibly removed from surrounding cities,
to be installed as minor deities at Rome, and new
cults are set up by statesmen and generals in grati-
tude for political and military successes. Imported
deities were called Novensiles, the native gods being
Indigetes.

2. Increasing tendencies to splendour and display,

1 Preller, Romische Mythologie, i, 2 1 : " Die jungen Jahre Roms
wurden in eine Zucht getan, welche auf die Dauer freilich nicht
befriedigen und noch weniger den plebejischen Neubiirgern gefal-
len konnte, aber fur den Anfang eine ganz vortreffliche Schule
jener Gesinnung war, an welche wir bei Rom und den Romern
immer zuerst denken."

24 THE RELIGIOUS BASIS

corresponding with the growing wealth of the
Roman nobility, and the gradual promotion of the
City to the position of a world-power. Temples and
images, almost unknown to Pompilian citizens, now
abound. Religious observances become, if less
serious, much more spectacular, being usually ac-
companied by elaborate public games and banquets.

3. To the simple piety of the former age suc-
ceeds mysticism and an increasing disposition to-
wards sign-reading and occult learning. Etruscan
haruspices reinforce the Roman augurs, and a special
college — duoviri sacris faciundis — admittance to
which is clamorously^demanded by plebeians, guards
and on occasion interprets the Sibylline Books.

The third period, from the Punic wars to the end
of the Republic, witnesses the almost complete dis-
integration of the ancient Latino-Sabine religion by
foreign, now including African and Asiatic, elements.
Faith among the educated -turns to scepticism,1 or
at best surface-belief; with the vulgar it encourages
sloth, and the grosser forms of superstition. Quintus
Scaevola (Consul, 659 u.c.) openly asserts the ex-
istence of a double religion, the one rational and
philosophic for the educated, the other traditional
and superstitious for the ignorant. Sacral learning
is neglected and largely forgotten ; candidates for the
priestly offices are elected by popular vote, obtained

1 " Among the educated classes," says Warde Fowler (R. F.,
342), "the old beliefs were being eaten away by the acids of a
second-hand philosophy."

OF ROMAN SOCIETY 25

by sedulous canvassing or lavish bribery; the prac-
tices of religion subserve the intrigues of the poli-
tician, the pastimes of the frivolous, and the amours
of the lady of fashion. To the general mob of slaves,
pauperized townsmen, foreign adventurers, idle para-
sites, and crapulous millionaires, with their women-
kind, public devotions are merely pretexts for licence
and brutalities.

In the fourth or Imperial period, the centraliza-
tion of political power in the hands of one man
reacts upon the religious system. The City cults are
indeed celebrated more pompously than ever by an
imposing hierarchy, enjoying augmented dignity
and emoluments; but gods and men are alike abased
before Caesar, the focus of all adoration as of all
temporal power, to whom even Jupiter must hence-
forth surrender his title of Optimus Maximus. As
the despotic power of the head of the State gradually
discards its disguises, so the devotion paid to living
and dead princes becomes more exclusive, more
Oriental, and more contemptible. The divorce be-
tween religion and ceremonial is now absolute. The
spiritual yearnings of the few must be confined
within doors. The system must run its course until
the ground is cleared for the advent of that old-new
faith, once dimly perceived in Rome, and now an-
nounced by a despised handful of Jews, the faith of a
universal morality, enjoined by a universal Godhead.

Of these four periods, only the first two fall within
the limits assigned to this treatise, and in the brief

26 THE RELIGIOUS BASIS

review we are able to give them, they may be taken
together.

The chief public deities of early Rome were the
war-god, Mars-Quirinus, and, later, Jupiter (Dies-
piter),1 the latter representing the civic rather than the
warlike aspect of life. Agreeably with the old- Ro-
man order of ideas, which consistently subordinated
force to law and military to civil power, Jupiter and
not Mars became the chief god, the Stayer of the
State, and its champion against all comers. In ac-
cordance with the process of fission common to
nearly all important ancient gods, we encounter
Jupiter with many suffixes and varied qualities.
Roman statecraft was quick to recognize the im-
portance of specially identifying with itself the most
esteemed deity of Central Italy. A seeming religious
consecration of Rome's hegemony over Latium had
been afforded by its' presidency (after the over-
throw of Alba) over the immemorial cult of Jupiter
Latiaris, the common patron of the federated Latin
cities. Jupiter in another form soon throned as
Optimus Maximus upon the Capitol, his consort,
Juno, to the left, his daughter, Minerva, to the right.2

1 The old Latin Mars was, however, a god of vegetation, and
non-militant. Jupiter (Diespiter) contracted from Jovis (Diovis)
and pater. His worship at Rome probably only dates from the
absorption of the Esquiline into the Palatine City (Bouche-
Leclerq, Manuel, 488).

2 Images and temples were scarcely known in the earliest age
of Rome. Most worships took place in woods and groves, and
various trees were dedicated to certain gods, as the oak to Jupiter
(Livy, i, 10). The association with Jupiter of Juno and Minerva

OF ROMAN SOCIETY 27

Jupiter Stator was installed upon the Palatine. The
chief festivals were sacred to him, and he was pre-
sumed to preside in the vacant seat of honour beside
magistrates and senators over the solemn public
feasts. He was the guardian of international law
and guest-right. No foreign war could be under-
taken which had not been justified to Jupiter by the
solemn declaration of the enemy's wrong, and refusal
to redress it. When a victorious army returned, its
entry was a religious ceremonial in his honour. The
general to whom a triumph was accorded by his
countrymen borrowed the attributes of Jupiter, not
from pride but in token that to the god belonged
the victory; and to Jupiter were dedicated the Spolia
opima, when a Roman commander had, with his
own hand, slain and stripped the hostile leader.

Constantly, though not exclusively, associated
with Jupiter, is the notion of Light, allied to the no-
tion of Truth and Rectitude.1 The days of the full
moon were sacred to Jupiter Lucetius. To a people
so largely addicted to rustic pursuits, he naturally pre-
sented himself as a patron of agriculture, of the crops
and vintages, and therefore closely associated with

was borrowed later from Greece through Etruria, where the three
deities were known respectively as Tinia, Uni, and Menrfa.
Marriage and propagation could hardly be attributed to the early
Latin and Roman gods, before the primaeval religion had suc-
cumbed to the influence of Greek ideas.

1 Good and Evil seem with all nations to be bound up with
the ideas of Light and Darkness, e.g., the light of Heaven, the
Prince of Darkness. Similarly, Right seems always associated
with straightness, and Wrong with its opposite.

28 THE RELIGIOUS BASIS

meteorological manifestations.1 But as every prin-
ciple may be viewed under different aspects, the great
god himself had a maleficent side, and the Romans
scrupled not to adore Ve-diovis, the Evil Jove.2

Besides their principal deities, the Romans sacri-
ficed to gods of the Tiber, the harbour and sea
(after the possession of the seaport Ostia had opened
the commercial waterway), woods, and springs. The
Dii Termini were gods of the landmarks, which so
many peoples have concurred in regarding as pe-
culiarly sacred.3 Numberless abstractions derived

1 The different points of view from which most natural pheno-
mena are capable of being regarded, and the independent ob-
servations of different tribes, or groups of tribes, partly account
for the extraordinary confusion of ideas which strikes us at every
turn in the ancient mythology. The like natural phenomenon or
principle may be worshipped by different peoples under dissimilar
names, and different phenomena or principles are equally sus-
ceptible of being worshipped under the same name. Jupiter
Pluvius and Jupiter Tonans might be regarded as one and the
same, and even Jupiter Capitolinus might be imperfectly dis-
sociated from Jupiter Stator (on the Palatine); but there can have
been little, if any, connection, in the minds of the ancients,
beyond the abstraction of the universal Godhead, between the
first pair, originating in the play of natural forces, and the second,
carrying a purely political significance.

2 Mommsen, Romische Geschichte, i, 163. Preller, Romische
Mythologie, i, 264, recognizes in Ve-diovis merely a youthful
Jupiter, who was likewise regarded as a sun-god, and, in a country
like Latium, not unnaturally associated with epidemics at certain
seasons. His temple, between the two summits of the Capitoline
Hill, was an asylum for outlaws who had fled from justice.

3 " Cursed be he that removeth his neighbour's land-mark "
(Deut., xxvii, 17).

OF ROMAN SOCIETY 29

from everyday pursuits and events were personified
and deified: Satunus represented the seed-time,
Census and the goddess Ops the harvest, Ceres,
plenty, the Mater matuta, child-bearing. Abstraction
even went the length of imagining a Janus as god
of the Morning and of all Beginning, and dedicating
temples to the Public Conscience (Fides Populi
Romani) and, later, to notions like Fever and Mis-
fortune. Janus (Dianus, masculine of Diana = Luna,
the moon) was originally, like Jupiter, pre-eminently
a light or life-giving god. His temple was closed
in time of peace and open during war, for what
reason is not clear. His double face was retro-
spective of the bygone, and prospective of the com-
ing year. As god of the Beginning, Janus seems to
have been always mentioned first in the invocations
to the deities (Livy, viii, 9), but March, not January,1
was for centuries the first month of the Roman year.
As every family had its domestic hearth (vesta),
so was Vesta the hearth of the city, upon which
six 2 chaste virgins maintained the sacred fire. After
thirty years of service they were entitled to retire
into private life and marry ; but usually preferred to
retain the amenities of a highly privileged position.
They were exempt from patria potestas and tutelage
(though subject to disciplinary control of the ponti-
fex maximus) and could freely hold property and

1 It is uncertain whether January was named after Janus (Warde
Fowler, Roman Festivals, 33, 99).

2 In earliest times, four only.

30 THE RELIGIOUS BASIS

dispose of it by mancipation or testamentary dis-
position. They had the privilege of driving within
the City walls, of being preceded by lictors like high
officers of State, and of liberating any condemned
criminal who accidentally crossed their path. Like
the Family, too, the City had its Lares and Penates,
tutelary deities of mysterious powers, whose names
must never be disclosed, lest an enemy, by specious
promises or magic spells and incantations, should
seduce them from the City to its undoing. For, not-
withstanding their abstract character, the gods of a
city were susceptible of the temptation of bribes,
the coercion of a magic formula, and, when repre-
sented by material images, of bodily capture like
any other citizen. When Rome was sacked by the
Gauls, the Roman gods found hospitality with the
citizens of Caere. Every city of antiquity bore
two names, the one being that known to the world,
whilst the other and true appellation remained a
closely kept secret, lest the city's enemies should
find means to work charms1 against it.2 Niebuhr
believed the secret name of Rome to have been
Ouirium. The traffickings with the frail gods of
Veii are well known, and many Jupiters and Junos
have been removed from vanquished cities, to be ad-
mitted among the inferior deities of Rome, whilst their
whilom votaries swelled the ranks of the Roman plebs.

1 There is a fundamental difference between the Priest and the
Magician. The former serves his gods, the latter masters them.

2 Macrobius, Sat., iii, 9.

OF ROMAN SOCIETY 31

At the head of the Roman hierarchy stood, in the
regal period, the King (Rex). In republican times,
the priestly office of rex sacrorum was nominally the
most exalted, and actually the least significant.
Next in official rank to that shadowy dignitary were
the three flamines majores, ministering respectively
to Jupiter, Mars, and Quirinus, as did the rex
sacrorum to Janus. Chief of the flamines was that
of Jupiter, the flamen Dialis, of whom it was re-
quired that he must be married in first wedlock, his
wife being priestess to Juno, and whom widower-
hood disqualified from continuance in office. The
priests of the lesser gods were flamines minores,
and theirs were the first of the sacred offices to fall
to the pretensions of the plebeians. Last in dignity,
but politically far the most powerful, was the pontifex
maximus. He appointed and exercised disciplinary
power alike over rex sacrorum, flamines, and vestals.
His decision was invoked in all matters touching
public worship, his verdict was decisive of the
legitimacy or illegitimacy of marriages, and his
political importance may be judged by the obstinacy
with which the patricians contrived to retain the
office in the hands of their order for many years
after the lex Ogulnia had nominally opened it to
plebeians. With him wras associated a college con-
sisting of four (after 454 u.c. of eight) 1 pontifices
("bridge-builders," or possibly "road-makers"),2 a

1 Sulla raised the number to fifteen, and there were many later
variations. 2 Cf. Clark, Early R. L., 56.

32 THE RELIGIOUS BASIS

pre- Roman, originally lay institution of engineers,
whose avocations encouraged the habit and facility
of calculation, draughtsmanship, and writing. Ac-
cordingly, the pontiffs, under the direction of their
president, regulated the calendar (though with very
moderate success), appointed the dates of public
feasts, announced the days upon which public busi-
ness might lawfully be transacted, guarded most of
the archives, kept the City annals, and exercised a
general supervision over public ritual.

With the flamen Martialis and flamen Quirinalis
were associated colleges of twelve under-priests,
salii (leapers or dancers).1 Each curia had its special
altar, priesthood, and religious observances under
the care of a curio maximus. There were many less
important associations or brotherhoods, of imme-
morial antiquity and obscure origin, as the Luperci,
who administered the cult of the Palatine Faunus;
the Titii, who celebrated the memory of the king
from whom they derived their name; the Fratres
Arvales, who sacrificed each year to Dea Dia. Some
of these institutions had originally belonged to par-
ticular gentes prior to the formation of the City,
as the Luperci of the Fabian and the Ouinctilian
gentes. Trade guilds had their peculiar tutelary
gods and festivals, as the smiths, who adored Vulcan
and celebrated the volcanalia.

Two priests, duoviri sacris faciundis (increased
387 u.c. to ten, of whom half were required to be
1 Varro, De L. L., v, 85.

OF ROMAN SOCIETY 33

plebeians) kept the mystic Sibylline Books, which
were consulted in times of crisis when grave danger
threatened the State. Generally speaking, the oracle
demanded the establishment of some new cult or cere-
monial.

The Fetiales, under a chief called pater patratus,
were specially associated with the cult of Jupiter,
and fulfilled, though in a sacerdotal character, the
functions now usually discharged by a Foreign
Office. All diplomatic intercourse with foreign gov-
ernments fell within their department. They pro-
tected the interests of nationals who had suffered
wrong at the hands of alien States or subjects, bar-
gained for the amount of compensation, or the noxal
surrender of the offender, negotiated treaties, and
notified declarations of war. The institution was of
immemorial age and common to all Italic peoples.

In Rome, the distinction between priestly offices,
properly so-called, and divination, or the science of
consulting the gods, was always maintained well in
view. The augurs and haruspices were, like the pon-
tifices, inferior in rank to the flamines. They were
not necessarily inspired by the gods.1 The auspices
constituted an independent administrative depart-
ment, and, indeed, may have originated in the dis-
charge of purely secular duties during the remote ages
of the Aryan migration.2 The augurs (from avis and
garrio) interpreted the flights (or cries) of birds as

1 Cicero, De Div., i, 49.

2 Ihering (Vorgeschichte) propounds some ingenious theories

D

34 THE RELIGIOUS BASIS

manifestations of the heavenly will. Etruria was
apparently the classical home of the allied science of
the haruspices, whose prognostications were founded
upon an examination of the entrails of slaughtered
animals. Wild birds and sacrifices were not alone
in furnishing hints for the guidance of mortals.
A Roman army would be accompanied by sacred
chickens, whose appetite, or want of it, determined
the course of a campaign. The habit, from which
Roman soldiers never departed, of intrenching their
camp, even though pitched for a single night only,
may be ascribed to their fear of being forced to fight
at a time when the auspices were unfavourable.
The defeat and death of Flaminius was attributed
to the neglect of the warnings conveyed by the re-
fusal of poultry to eat, and other confirmatory signs.
No public business could be transacted without
having first consulted the gods,1 and the high-
est offices of State were resigned upon the dis-
covery of a defect in the auspices at the time of
installation.2 Dreams were regarded as inspired
from above.3 Lightning would be variously inter-
preted according to the direction whence it came.4
Every momentous event was heralded by prodigies,
as when a mule was delivered of a colt,5 the statues

concerning the non-religious origin of the auspicia. But his ex-
planation of the origin of the vestal virgins seems far-fetched.

1 Cicero, De Div., i, 16; Livy, i, 36.

2 Livy, iv, 7; v, 17. Cicero, De Nat. Deo., ii, 4.

3 Cicero, De Div., i, 2, 20, 26. 4 Ibid., ii, 18. 5 Ibid., ii, 22.

OF ROMAN SOCIETY 35

of gods were covered with sweat, or there fell a rain
of blood.1 Vergil describes the terrible portents of
the night preceding the assassination of Caesar,2
who, had he lived a few centuries earlier, would
assuredly have heeded the premonitions of nature
and the adverse auguries, so far as they were not
imagined after the event.

In all transactions with the gods scrupulous at-
tention was paid to form, and frequently a cere-
mony was repeated many times in succession to
ensure that nothing was omitted. Conversely, the
gods were held to the strict letter of the bargain,
however violated in the spirit. In addressing most 3
of the deities the worshipper covered his head.
Conversation with the unseen world was only to
be entered upon with a calm and serene mind,
and a body free of disorder. No person with any
physical blemish was eligible for the priesthood.
A sore or scab disqualified an augur until healed,
and the innumerable disabilities of a flamen Dialis
(who was forbidden to touch, among other things, a
horse, raw meat or beans, and dared not even name
a dog or goat) must have seriously detracted from
his enjoyment of office.

Family Religion.

The desire to propagate is, next to hunger, the
most active impulse in every department of animal

1 Cicero, De Div., ii, 27. 2 Georg. I.

3 Plutarch, Q. R., 10, n, 13.

36 THE RELIGIOUS BASIS

life, and only under the influence of a highly arti-
ficial civilization are considerations of prudence
occasionally permitted to override it. But the yearn-
ing for offspring was intensified in ancient peoples
by almost equally powerful external pressure.1 Two
tenets of belief, which the founders of Rome brought
with them, were perhaps as old as human-kind;
firstly, that the spirits of the dead, the Lares and
Penates, could and did direct for good or evil the
fate of the living, and, secondly, that they were largely
subject to the same needs as living mortals, upon
whom they were helplessly dependent for the assuage-
ment of hunger and thirst, and other ministrations
necessary for their happiness in the lower world.

There was no " better land " for the ancients,
unless after death they became gods. The expecta-
tion of the vast majority was to repose in a tomb, to
which they would be committed with due performance
of the rites, their wants being ministered to by period-
ical sacrifices of survivors. If the latter neglected to
provide for proper interment and for the regular
offerings, sanctified by the practice of ages, the for-
lorn spirit of the dead man was condemned to roam
upon earth, an unhappy and malevolent demon, who
wreaked vengeance upon the living by spreading
disease, by causing cattle to stray and crops to fail.2

1 Men would pray and sacrifice for whole days that their
children might survive them (Cic., De Nat. Deor., ii, 28).

2 More backward peoples (e.g., German tribes) would bury with
a dead man his principal and more necessary movable belongings

OF ROMAN SOCIETY 37

To insure against such a calamity was the uni-
versal desire, and every man was expected to pro-
vide in his lifetime a successor upon whom would
unmistakably devolve the duty -- enforceable, if
necessary, by the central authority — of attending to
the sacra. That a father should look to his own
children to fulfil the office is what we expect to find.
But then it became necessary to be quite certain who
were the children. Such certainty could only be se-
cured in ordered married life,1 the outward sign of
which was the nuptial ceremony, whereby the wife
became detached from her natural family to enter
her husband's. Hence the peculiar sanctity of the
marriage tie in early Rome, the reservation of the
sacra (and the inheritance) to children born in law-
ful wedlock, the prohibition of celibacy, and the
importance attached to female chastity.

Not all children were equally eligible to perform
the sacra to the manes of their ancestors. Daugh-

— slaves, weapons, horses, food, etc. But this can only have been
usual in the case of wealthy and important men.

1 The only legitimate conjugal union known to Romans and
modern Europeans, though not necessarily non-existent, must
have been of rare occurrence — the result of environment, not
inclination — among primitive peoples. Monogamy was favoured
by patriarchism, as patriarchism was favoured by a pastoral life,
tending, where pasture is scanty, to isolate individual families.
Ihering (Vorgeschichte, p. 63) holds that matriarchate had dis-
appeared from Aryan institutions before the great westward wan-
dering. Caesar, however (De Bello Gall., v, 14), asserts, though
one is reluctant to believe, the existence of polyandry among
Ancient Britons.

38 THE RELIGIOUS BASIS

ters, by marrying, were held to break all sacred con-
nection with their natural family, since to belong to
two families was deemed inadmissible. There was
probably another reason for placing daughters upon
a footing different from that of the sons ; it seems to
have been the belief of the ancient Aryans that the
power of generation was with males exclusively1 —
the female serving merely as a passive instrument or
incubator — that the blood of the father, and his
alone, rolled in the veins of his child. Thus cogna-
tion, or relationship through females (I use the word
in its narrower sense), counted for very little. To
the sons of the same father (possibly at one time to
the eldest son only) fell the duty of performing the
sacrifices to him and their remoter ancestors.

Private Religion centred in the Home.2 The
citizen's house was not so much his Castle as his
Chapel, which not even the officers of the State, in
the execution of their duty, dared to desecrate by
violent entry. Probably the deceased members of
the family were at first interred in the plot of ground
upon which the house stood, and to this circumstance
has been ascribed the origin of exclusive ownership
of land — with what right I cannot determine. For
obvious reasons, the custom cannot have generally
prevailed for very long in the growing city, though
some of the older families contrived to retain the
privilege. The practice of cremation arose at a very

1 F. de Coulanges, Cite Antique, p. 38.

* Cicero, Pro domo sua, 41; Val. Max., iv, 3, 14.

OF ROMAN SOCIETY 39

early period; and the XII Tables speak of burying
and burning the dead as if both were usual at the
time. No creditor could seize his debtor's house to
satisfy his claim, and when a criminal paid the ex-
treme penalty, forfeiting life and property, his habita-
tion was not confiscated, but razed to the ground.

Each house contained its hearth or altar (vesta,
ara, or focus) upon which the sacred fire was main-
tained. To have put this fire to any domestic use
would have desecrated it; nor was every kind of
fuel suitable to feed it. Prayers and devotions were
regularly offered before it at least twice in the day.
Once a year, on the ist of March (New Year's Day
with the early Romans) the fire was extinguished,
and forthwith rekindled with prescribed rites and
solemnities, at which the whole family assisted under
the presidency of the paterfamilias and his wife. It
is extremely probable1 that there was an intimate
connection between the altar rites and the cult of the
house Lares, that the adoration of the fire, the
emblem of purity as the ancients understood it, was
but an adjunct of the worship addressed to the
ancestral deities. The altar being the symbol of the
domestic Providence, its loss or defilement was the
greatest misfortune that could overtake the family,
and " pro aris et focis " was the expression used by
the Romans to signify that their all was at stake.

It is impossible to estimate at what epoch the

1 F. de Coulanges, Cite Antique, 29. Contra, Ihering, Vorge-
schichte, 348.

40 THE RELIGIOUS BASIS

belief in the virtue of the house-altar, the imminence
of the ancestors' presence, the reality of their material
needs, the efficacy of their protection and their power
for mischief, began to decline as living articles of
faith. The ritual itself had hardened into a rule of
life which left its impress upon the legislation of
more advanced ages, and through sheer force of habit
continued to be obeyed even when the strength of
belief had almost entirely spent itself. Enormous
inconvenience must have been entailed by a private
cult demanding the unfailing and unremitting atten-
tion of particular persons at one fixed spot. Yet,
long after the substance of faith had disappeared,
its outward forms and trappings commanded the
uncomprehending respect of the successive genera-
tions whom they puzzled and plagued.

It must be admitted that the religion professed
and practised by the Romans was not of the highest
order. It was characterized by a formalism pedantic
to the verge of puerility. Founded primarily upon
material considerations, adoration both of nature and
ancestors was largely the outcome of the votary's
fear, rather than the veneration of the humble and
contrite heart seeking spiritual communion with the
Higher Power. Primus in orbe deos fecit timor.
There was no place for the Christian's noblest
ideal — the ideal of an infinitely wise and good All-
Father, to whom all men are equally his children,
and whose solicitude disdains not even the brute

OF ROMAN SOCIETY 41

creation.1 There was no place for the doctrine of
after-life reward and retribution ; the Hereafter de-
pended not upon a man's own conduct, but upon the
diligence of descendants who attended to the sacra.
Piety, in Roman eyes the foundation of all moral
excellence, meant little more than the respect paid
to the memory of the dead. Virtue was synonymous
with valour, the quality pre-eminently requisite for
the defence of State and house, gods and altar
against external enemies. At first sight a low religion
indeed; but it was a religion adapted to the times,
with some positive and negative advantages of its
own which modern Europeans have secured only at
the price of centuries of strife and suffering. It per-
mitted as perfect a civil liberty as the ancients could
aspire to, and whilst developing the best qualities
then attainable to mankind, discountenanced the
worst features of the yet older barbarian worship.

i. It left public and private life free from the
curse of sacerdotal tyranny. At no time was pagan
Rome a priest-ridden community. The civil power
was as supreme in Rome as in the most enlightened
of modern States. Like the soldier, the priest and
the augur were by the Constitution unequivocally

1 Luke, xiv, 5 : " Which of you shall have an ass or an ox fallen
into a pit, and will not straightway pull him out on the Sabbath
day? " Matthew, x, 29: " Are not two sparrows sold for a farthing?
And one of them shall not fall on the ground without your
Father." Similarly the Kuran: "Do they look up at the birds
flapping their wings? None supporteth them but the Merciful:
verily he seeth all."

42 THE RELIGIOUS BASIS

subordinated to the Magistrate, and indirectly to
the People. The sacerdotal order was not a body
of fanatics ardent to convert the world with fire
and sword, nor a privileged caste cut off from the
generality of the nation, and ambitious solely for
the aggrandizement of its own estate. Apart from
the respect due to their functions, priests and augurs
personally claimed no special place in the scheme
of government. Nor was the priestly office cal-
culated, in private life, to inspire extravagant awe
in the plain paterfamilias who, as the central figure
of his own family circle, himself daily discharged
quasi-sacerdotal duties. Undistinguished from his
fellow citizens when not actually officiating in his
sacred capacity, the priest deliberated in the Senate,
voted in the comitia, fought in the field, cultivated
his property, transacted business, and brought up
his family.

2. Proscriptions for heresy are necessarily absent
from a community where all religions are considered
" by the people as equally true, by the philosopher
as equally false, and by the magistrate as equally
useful." l Each family guarded the ceremonial of its
own private cult as an institution independent of the
State. Each city, whilst worshipping its own gods,
not only recognized those of other cities, but even

1 Gibbon, Decline and Fall of the Roman Empire, i, c. 2.
But such philosophers had scarcely begun to exist in Rome in
the epoch under notice, when the families and cities were content
to take their own and each other's gods upon trust.

OF ROMAN SOCIETY 43

occasionally competed for their favours. A broad
spirit of tolerance characterized the public religion,
and in Imperial times the Roman pro-consul or
legate in the provinces would courteously sacrifice
upon the altar of the local god whose community
the fortunes of war had brought under Roman rule.
Uncompromising Monotheism has, unfortunately,
always tended towards intolerance, and religious
persecution, properly so called, remained unknown
only exactly so long as Rome remained pagan.
Political expediency, indeed, might occasionally
attempt the suppression of, or conveniently divert
public indignation to, a small sect which had osten-
tatiously sundered itself from the rest of mankind;
but the motives which condemned Christians to the
torch or the lions had nothing in common with those
which organized the Inquisition, and lighted the
fires of Smithfield.1

3. Whilst the Romans of the regal and Repub-
lican ages had not yet entered upon the era of
religious persecutions, they had outgrown those per-
secutions— no less terrible, though voluntarily suf-
fered— which marked the majority of barbarian, and
disgraced even some of the civilized cults of
antiquity.2 Animal blood, indeed, flowed at most,
though not at all, rites, but beyond the killing of the
sacrificial victim, wanton suffering to man or beast
was avoided by a people which had not yet learned

1 Cf. Bryce, Studies, i, 53 ff.
E.g., the Moloch-worship of Carthage.

44 THE RELIGIOUS BASIS

to love cruelty for its own sake. It is probable that
among Aryan societies the custom of human sacri-
fice, infrequent with pastoral and patriarchal groups,
developed later with the increasingly militant aspect
of life. It is to their credit that the Romans, amid
constantly warlike surroundings, contrived to throw
off habits which long continued to form an integral
part of the rites of other nations. The ver sacrum,
or offering of all children and animals to be born in
the ensuing spring, or later, still survived as an ex-
pedient for averting the wrath or enlisting the sym-
pathy of the deities in times of exceptional trouble and
perplexity.1 But as an alternative to their immolation,
the babies were allowed to grow to the age of self-
maintenance, and were then sent out of the com-
munity to wander whither the gods might direct,
and if favoured by them to found new cities. And
already in comparatively early times such emergency
offerings appear to have been confined exclusively to
animal firstlings.'2 Traces of primordial institutions
involving human sacrifice are indeed found in the
earlier Roman rites. Before Jus had become dif-
ferentiated from Fas and Crime from Sin, the male-
factor was scourged to death, or hurled from the
Tarpeianrock, not because he had transgressed against
society, but because an offence against the divine
law could only be purged by a sacrifice to the out-

1 Festus, Ver Sacrum; Smith's Dictionary of Antiquities ; Ihe-
ring, Vorgeschichte, 311 ff.

2 Livy, xxii, 10.

45

raged gods. But although in the case of specific
iniquities the devotion of the evil-doer himself was
regarded as the proper and natural expiation, the
wrath of the gods could be appeased, or their active
co-operation secured, by the voluntary self-immola-
tion of one or more brave and patriotic citizens.
The ill-boding chasm in the heart of the City closed
for ever when Curtius leapt into it; and more than
once did a Roman leader snatch a doubtful victory
by braving not only the ordinary death on the battle-
field, but the terrors of an unknown fate beyond the
grave.1 The savage ancient custom survived as a
sanction of public morality, or an incentive to the
sublimest of human acts. Otherwise, save at one or
two supreme crises of public peril and panic,2 the
Roman contrived to reconcile his higher instincts with
his respect for tradition by substituting, in his votive
offerings, the human image for the human body. The
gloomy and forbidding rites of Etruria,the cruelties of
Carthage and Britain, and the depravities of Assyria
have no place in his uncorrupted ritual.

4. Valuable far and beyond all else was the char-
acter-forming influence of a pure and simple worship
upon a naturally worthy people. We have already

1 Schjott thinks that the conduct of Leonidas and the three
hundred Spartans at Thermopylae was a similar act of voluntary
self-sacrifice to the gods to ensure ultimate victory. When Rome
was attacked by the Gauls, the leading men who remained behind
to be unresistingly massacred seem to have similarly " devoted "
themselves. Livy, v, 41; Florus, i, 13.

1 Plutarch, Q. R., 83.

46 THE RELIGIOUS BASIS

referred to the probably well-founded belief that all
worship was originally inspired by motives no more
respectable than fear and cupidity; but these are
not the predominant notes in early Rome. There
the gods were not contemplated with that abject ser-
vility which a professional clerisy, interposing itself
between Heaven and the laity, has in all ages pre-
sumed to exact. Rather did the relation consist in
interchange of mutual benefits, a hearty and busi-
ness-like reciprocity, and mortals not only drove
hard bargains with their gods, but even occasion-
ally overreached them. The Roman festivals, cele-
brated with the rough, but simple and decorous
mirth which we associate with village rejoicings,
rather represent the sentiment of gratitude for the
fullness of the earth, a serene reliance upon its con-
tinuance, and a cheerful resolve to use to the utmost
the gods' gifts. It was a ritual which, if it did not
consciously inculcate, was certainly reconcilable with
a fairly high standard of ethics.1 If our view of its
origin be correct, we must not indeed look upon it
as the fountain of morality. Nor is this necessary.
The fact that a society comprising a considerable
number of individuals has been voluntarily formed,
-and continues voluntarily to exist — the mere cohe-
sion without coercion — sufficiently demonstrates a
conscious or intuitive tendency in its members to
conform to certain rules of conduct, without which
all free association is an impossibility. The utmost

1 Cf. Warde Fowler, Roman Festivals, 344 ff.

OF ROMAN SOCIETY 47

that we can expect from a primitive religion, not
directly founded upon ethical teaching, is that it
shall clarify and not distort, fortify and not cor-
rupt, such primordial social instincts as are already
operative. With the Romans religion had struck
the deeper note of human life. Under the aegis of
the earlier cult grew and thrived the new notion
of duty to Country, and where patriotism is con-
spicuously and universally present, other virtues are
seldom wanting. The higher civilization starts at the
point where the immortal gods have become more
or less identified with moral precepts. Religion so
developed will blend with and sanction morality as
a superhuman principle commanding what is right,
prohibiting what is wrong.1 But the ancient Roman
faith sufficed to inspire filial piety and attachment
to the home, pervade family life with an atmosphere
of dignity and seriousness, and nourish an ardent
loyalty to kin and country. A Curtius, a Regulus,
a Decius, these are not freaks, but types. The
episodes connected with their names may be largely
legendary, but they truthfully illustrate the psyche
of the Roman people.

1 Cf. Cicero, De Leg., ii, 4 : Hanc igitur video sapientissimorum
fuisse sententiam, legem neque hominum ingeniis excogitatam,
neque scitum aliquod esse populorum, sed aeternum quiddam,
quod universum mundum regeret, imperandi, prohibendique sa-
pientia. Ita principem legem illam, et ultimam mentem esse dice-
bant, omnia ratione aut cogentis, aut vetantis Dei : ex qua ilia lex,
quam Dii humane generi dederunt, recte est laudata; est enim
ratio mensque sapientis, ad jubendum et ad deterrendum idonea.

CHAPTER III

THE GENTES

WHEN a group consists of persons bound to-
gether by ties of blood and religion, owing
obedience and allegiance to a kinsman, whose direct
and personal sway unites them in common depend-
ency, the autonomy of the group, at the least for all
purposes of internal government, appears from the
archaic standpoint not only appropriate, but dictated
by nature no less than by circumstance. Where the
instinct of blood-relationship has not yet broadened
into the notion of nationality, man's duty will be
solely to those among whom he has lived and moved
from infancy, whose traditions and observances are
interwoven with every action of his life, whose for-
tunes and adventures involve his own prosperity or
ruin, and constitute ordinarily the sole happenings
which his narrow purview cares to notice.

Aryan patriarchism was conditioned by nomadic l
life, and fashioned by the philosophy of a desolate
independence. Secure in his solitude at least against

1 It does not of necessity follow that the wandering was con-
tinuous.

48

THE GENTES 49

stranger rivals, the tent-dweller could permit con-
jugal affection to develop freely, and bestow a
father's care upon children whose legitimacy he was
not concerned to question. His segregation removed
the temptation, by minimizing the facilities, of war-
like enterprise, and the practice of bride-stealing
slowly yielded to less violent methods during the
long periods of migration, when peace was the rule
rather than the exception. With the increased es-
teem which was extended to the wife acquired by
the more tedious process of negotiation and rudi-
mentary courtship, arose the tendency to companion-
ship between the sexes and disrelish for the poly-
gynous life which such companionship negatives.
Already in very remote ages, monogamy (that is,
the union of one man with one woman) was appar-
ently almost universal. The plurality of wives,
which a chief might occasionally permit himself, was
prompted by the respectable motive of maintaining
peace by formal alliance with all those groups which
chance brought into contact with his own.1 The
position of the Aryan wife and mother — far superior
to that of her sisters of other races boasting a more
elaborate and complex civilization2 — reacted happily
upon the upbringing of the offspring,3 and powerfully

1 Similarly, Tacitus, Germ, xviii, claims that the German chiefs
practised polygyny as a policy, " non libidine."

2 Ihering, Vorgeschichte, 45; Lecky, Europ. Morals, i, 104.

3 Ernest Renan, Histoire du Peuple d'Israel, i, 8. Cf. Spencer's
Sociology, i, 667 ff.; Woods Hutchinson's article in "Contem-
porary Review," September, 1905.

E

50 THE GENTES

strengthened the sentiment of family upon which
Aryan morality was based.

Unlike the Israelitish patriarchs, the Aryans, in
their westward wandering, were not exposed to the
influences of any powerful and centralized civiliza-
tion. Political relations, peaceful or hostile, could
scarcely be said to exist in the limited and inter-
mittent communications between pastoral nomads or
semi-nomads, thinly spread over the spacious plains
of Eastern Europe. Exchange of commodities could
not develop systematically among self-contained
groups. If aboriginal inhabitants existed to cross
the path of the Aryans, or if strife arose among the
Aryan groups themselves, the fighting which ensued
must have been a series of mere scuffles for the best
grass, the most plentiful water, possibly the most
attractive women. Co-operation of groups under a
common leader, if it existed at all, must have been
infrequent and transitory. But with the occupation
of the Italian and Balkan peninsulas came the rise
of husbandry, and the marriage of the Group to the
Soil. Earth-hunger is a passion with all agricul-
turists. It proved the solvent of the primordial Aryan
societies which had theretofore mostly lived in a state
of nature. Territorial jealousy, intensified by the pro-
pinquity resulting from narrower boundaries and the
filling up of the more favoured lands, now evolved
those incipient political consolidations whence ulti-
mately arose the historic commonwealths of Greece
and Italy. Societies of peasant-brigands sought aid

THE GENTES 51

and countenance among those nearest allied with them
by marriage or intercourse. United action was, how-
ever, only possible where the various group-heads
voluntarily agreed to defer to one chosen chief, and
in the welter of struggling hordes those coalitions
thrived and solidified whose members had best
learned the elementary duty of political and mar-
tial discipline. The cardinal principle of patriarch-
ism — the absolute equality of the group-heads inter
se, and the absolute subjection of their dependants
—must perforce yield, in all matters of what we
may now call public interest, to the principle
of more or less qualified submission of all to a
central authority, a Prince or King. And since
no lasting association was conceivable without
community of cult, special deities were adopted
or invented as patrons of the new tribal agglomera-
tions.

The gentes which united to found Rome brought
with them the characteristic traits of their earlier
history, though the organization already exhibited
strong marks of decay. The theory of a common
descent of all the gentiles was upheld, however
much the blood-relationship might have become
diluted by the adoption of strangers. Indeed, in
reality it might have been wanting at the very
source in some of the gentes, and the members
might trace an alleged descent from an eponymous
hero-adventurer, whose name had been adopted by
companions-in-arms not connected by blood with

52 THE GENTES

him in any way. The common cult, not common
descent, cemented the gentile association.

When Rome was in course of foundation, the
gentes still subsisted as autonomous or quasi-autono-
mous groups, loosely confederated into tribes which
periodically celebrated common religious rites, and
occasionally took united action for offence or de-
fence under tribal chiefs. The internal economy of
the gens was quite without the purview of tribal
control, and naturally so. When by accident or de-
sign a considerable number of archaic groups, or as-
sociations of individuals, coalesce into an embryonic
State under a common chieftain, it is to be expected
that the latter should in the beginning look for sup-
port not to the masses but to a few persons in au-
thority over the groups. He will rely upon their
obedience and their fidelity, trusting that the in-
feriors will blindly follow their own familiar leaders.
Commands issued, or laws enacted, by him will be
commands addressed to, or laws binding upon, those
whom he will hold responsible for the conduct of
the different groups making up the nascent body
politic. Internal relations, whether personal or pro-
prietary, between the heads of groups and their
dependent members will not concern the central
government. Such a group will bear outwardly
some analogy with a modern protected State, the
sovereign of which is supreme in all internal affairs,
but must submit to have his " foreign " policy settled
for him by his suzerain. A disposition on the part

THE GENTES 53

of the central government to interfere in and regu-
late the internal conduct of the group will mark a
distinct advance in the community's history.1

It is improbable that the consolidation of the
three primitive tribes of Rome was at first more in-
timate than the previous coalitions of clans into
tribes. We have already seen that when once the
new City was fairly launched upon its political career,
experience demonstrated that a strong central gov-
ernment was the prime condition precedent to the
community's combined existence. That it was able
to withstand the repeated shocks of external and
domestic commotions is due to the thoroughness
with which the lesson was mastered. Nevertheless,
the State wisely meddled with the existing social
fabric only just as much as the public interest de-
manded and public opinion conceded. The ancient
gentile organization was indeed, at the birth of Rome,
already moribund, but the narrower family circle
which supplanted it long continued to exist for many
purposes as a State within the State.

At the moment when the gentile association first
emerges from darkness into the twilight of history,
it is found to consist in every case of a superior, or

1 Rossbach, Romische Ehe, 34: "Die Familienhaupter und
die grosseren Gruppen der Geschlechter standen noch fur sich
selbststandig da und traten nur dann zu einer Einheit zusammen,
erkannten nur dann ein Oberhaupt iiber sich an, wenn die Noth •
von aussen her dieses gebot. In alien iibrigen Angelegenheiten
blieben sie fiir sich bestehen." Cf. Maine, Ancient Law, c. V.
Ihering, Geist d. rom. Rechtes, i, 165 ff.

54 THE GENTES

patron, and a dependent or client class, and, in ap-
parent conformity with the custom of the age, only
the former had become invested with civic rights in
the newly-founded City. In this the Romans were
not singular, since the existence of a semi-servile
class appears to have been universal.1 Those were
members of the dominant order whose ancestry, how-
ever remote, disclosed no trace of servitude or de-
pendence. Towards each other the patrons and
clients of a gens were gentiles and gentilicii, the
former assuming a common descent by blood (or
adoption) from one ancestor, the latter claiming
the same descent derivatively. Although in Rome
clients were always accounted freemen, the principal
origin of clientage was, doubtless, slavery, and the
client usually the descendant of a slave, who had
been freed at some more or less remote period by
the head of the gens, or a branch of it, for the time
being.2 That the relation between master and slave
was not entirely snapped by the enfranchisement
was due to the fact that originally even the slave
participated in the sacra of his lord; it was not
competent to the latter without good cause to expel
or release therefrom any human creature once ad-
mitted.

It is no longer possible to elucidate whether the
headship of the gens may have belonged to the eldest

1 Caesar, Bel. Gall., vi, 13.

a Cf. Mommsen, Romische Forschungen, c. Die Romische
Clientel.

THE GENTES 55

male living at the death of the last chief, or the scion
of the senior branch of the clan, or what other qualifi-
cations may have determined the succession. The
Romans always recognized that " with the ancient
is wisdom, and in length of days understanding."
Seniority in some shape or form had certainly played
a leading part long before the Roman era, though'
possibly not in the very earliest Aryan institu-
tions.1 We have already seen that by the time the
City was founded, the constitution of the gens had
undergone important modifications. A gentile head
(princeps) now existed, if at all, only in an honor-
ary capacity, as dispensary of the religious rites;
matters affecting the internal well-being of the gens
as a whole were administered by a council or com-
mittee. For all other purposes the authority of the
gentile head had been displaced by the power of
the paterfamilias, the living male ancestor, over his
descendants in direct line.

The dominant members of a gens, if not under

1 Maine, Early Law and Custom, p. 193, says: "The patri-
archal theory is the theory of the origin of society in separate
families, held together by the authority and protection of the
eldest valid male ascendant." The question whether patriarchism
represents the very earliest form of primordial society need not
detain us. It is dealt with to some extent in Chapter VII of the
same work. Ihering (Vorgeschichte, pp. 54, 331) thinks that
the ancient Aryans put to death parents grown old and sickly,
a custom which may have lost its vogue when agriculture, by
increasing the supplies of food, rendered the experience of the
old available without the disadvantage of embarrassment to the
commissariat. Cf. Maine, Early Law and Custom, 22-23.

56 THE GENTES

the power of a living ancestor, were called with
respect to their sons and descendants by males
patres,1 with respect to their clients patroni ; and in
earliest Roman times the Senate may have been
merely an assembly of the " Elders," or patres.
Descendants of living patres were called patricii, a
term subsequently made to embrace the patres as
well. All patrician members of a gens (gentiles)
were ingenui,2 that is to say no one of their ancestors,
however far back they traced them, had ever been
a slave or a client. The Fabii, Claudii, Valerii,
Cornelii, Manlii are among the historically famous of
the Roman gentes.

In earliest Rome the gens was still to some extent
a self-contained community, cultivating in common
the land it occupied,3 and governed by the gentile
council of elders, who administered the joint pro-
perty, whilst exercising over the members, both patri-
cian and client, a disciplinary control which perhaps
furnished the model for the censura to which the
State subjected all its citizens. The council thus re-
lieved the central government of many duties which

1 Cicero, De Rep., ii, 12. The word pater, however, did not
exclusively or even primarily denote fatherhood, but rather lord-
ship. The gods and goddesses, even when celibate (as they were
in the primitive Latino-Sabine religious system), were still called
patres and matres.

2 Ingenuus — born in a gens. In later times the word was
applied to any one born free, irrespective of his ancestry or
legitimacy.

3 Mommsen, Staatsrecht, iii, 22.

THE GENTES 57

afterwards became part of the public administration.
It arbitrated upon disputes between gentiles. Where
necessary, it instituted guardians (tutores) over child-
ren, and withdrew family property from the hands of a
spendthrift parent. It enforced order by admonition
and fine. If the former were defied, and payment of
the latter refused, a refractory gentilis, whose offence
was not cognizable by the State authorities, could
be adequately dealt with by temporary or permanent
exclusion from the sacra, by expulsion from the gens,
and consequent loss of its protection, or by the threat
of execrating his memory when dead and prohibiting
gentiles from bearing his name. Similar sanctions l
were no doubt relied upon to enforce awards in civil
matters. The duties of the gentile council were not
repressive only, and each gentilis expected from his
gens succour for his person if a prisoner in the hands
of a creditor or foreign enemy, vengeance for his
memory (by retaliation or legal process) if slain by
a stranger, and protection for his unprovided or-
phaned children.

Clients were either freed slaves, and their de-
scendants, or families which at one time or other
had attached themselves by some species of " com-
mendation " to a gens 2 (adplicatio, susceptio clientis).

1 We are reminded of the excommunication formerly decreed by
our ecclesiastical courts. Blackstone, Comm., iii, 101.

2 Dionys. of Hal., ii, 4. As to the distinction of the two origins,
see Ortolan, Instituts de 1'Empereur Justinien, i, 27; iii, 33 ff.
Mommsen (Romische Forschungen) derives clients without ex-
ception from slavery. Contra^ Soltau, Volksversammlungen, 89 n.

58 THE GENTES

They were not gentiles, but gentilicii, deriving their
origin by a kind of artificial lineage from the gens
whose name they bore equally with their gentiles.
As their connection with the gens was indirect and
derivative, so also was their association with the
City. The law of earliest Rome took no direct cog-
nizance of the client's existence, or, rather, the
means by which the legal machinery could be set in
motion were inaccessible to him, save through the
intermediary of his patron, whose duty it was to
protect him from oppression and maintain him in
the enjoyment of such property as he might have
in possession.1

Material profit was by no means the sole, or even
the most important, consideration which determined
the patron's attitude. A large clientage was the
glory of a patrician family, and the number of ad-
herents in some degree the measure of its eminence;
and in the beginning the institution doubtlessly sub-
served the interest of the State by stimulating
among its leading men a healthy and public-spirited
emulation. Precisely what services were expected
from the client is not clear ; but that clientage was

Maine, Early Inst., 145, considers that some of the humbler com-
panions in arms of powerful chieftains may have originally taken
service as clients to share with him danger and booty.

1 Dionys. of Hal., ii, 4. But the entire property of the gens
must have originally vested in the hands of the princeps, and the
client's monetary obligations which Dionysius mentions can only
date from a period when the original gentile organization had
already reached an advanced stage of dissolution.

THE GENTES 59

not deemed dishonourable is evidenced by the nature
of some of the patron's obligations.1 It was among
the latter's solemn duties to instruct his client in the
law, which the latter had no direct means of studying,
to defend him when criminally indicted, to inter his
remains in the gentile tomb and generally to extend
to him the care of a parent. The father's preroga-
tive, the right of life and death, may have likewise
belonged to the patron, but abuse was restrained
by the religious nature of the bond.2 There existed
between patron and client a general duty of mutual
support, which obliged them to refrain from any act
of hostility, as by public accusation, giving adverse
evidence in court, or (possibly, on the client's part)
contrary voting in the comitia. In later times the
more idealistic and abstract nature of the association
seems to have been partly forgotten, and the client's
chief duty to have lain in the direction of occasional
money payments, which a wealthy patron would waive,
and originally all patrons had been wealthy. The
client assisted where necessary to dower the patron's

1 Aul. Cell., v, 13. " In officiis apud majores ita observatum est,
primum tutelae, deinde hospiti, deinde clienti, turn cognati, postea
affini." Cf. Vergil, ^neid, vi :

Hie quibus invisi fratres, dum vita manebat,
Pulsatusve parens, aut fraus innexa clienti.

Both Ihne and Niebuhr pay too little regard to the ethical element
in the relation which subsisted between patron and client, through
their association in a common cult.

2 The human agency of the XII Tables afterwards gave legal
sanction to the fas : " Patronus si clienti fraudem faxit, sacer esto."

60 THE GENTES

daughters, ransomed him and his children from cap-
tivity, paid his fines, and contributed to his expenses of
litigation, or the due upkeep of his rank and dignity.
The analogies between clientage and some medi-
aeval usages are by no means slight. The client's
relation to his patron was indeed personal and re-
ligious, rather than territorial, but certainly a number
of them must have tilled the gentile lands 1 under
conditions not dissimilar from early copyhold tenure,
or from villeinage. But we have seen that the
client's status in Rome (whatever the case else-
where) was far superior to serfdom. He followed
the patron to the wars, and the aids which he
owed him resemble those which the mediaeval
vassal rendered to his lord. It must, moreover, be
remembered that the client's civic disabilities, such
as the disqualification from sueing in his own name,
were shared equally by all Roman citizens in potes-
tate, and were the outcome not of his condition but
of the State's policy, which for civil purposes recog-
nized but one responsible head of each of its com-
ponent groups. The client appears in some respects
to have been less subject to the power of his patron
than the child to his father. He was not in potes-
tate and, it seems, could not be sold, or noxally
surrendered. The duties as between patron and
client were reciprocal, founded, as we have seen,
upon the sacra, and, whilst the institution retained

1 Clients, from colientes, or from cluere, to hear (obey)? Cuq,
Inst. jur. des R., 56; Mommsen, Rom. Forsch., i, 368.

THE GENTES 61

its vigour, conscientiously fulfilled by both parties.
Nor were the excesses of tyranny or caprice entirely
without temporal check, so long as the gentile coun-
cil of elders met as a miniature parliament to over-
look the internal affairs of the gens.

By analogy with the personal system of clientage,
it soon became the practice of conquered populations
and colonies to commend themselves to some
eminent Roman, and disputes between such com-
munities would frequently be remitted by the Senate
to the respective patrons, whose sentence it then
ratified.

In the struggle between the orders which con-
vulsed the first centuries of the Republic, clients
occupy an intermediate position between patricians
and non-attached plebeians. In general, traditional
allegiance probably proved stronger than the natural
desire for political equality ; and the client class, its
equivocal attitude derided as sycophancy by the
embittered plebeians,1 at last found itself practically
disfranchised by the Publilian plebiscitum excluding
it from the popular assemblies. The decay of
clientage as an institution was doubtlessly accelerated

1 How exquisitely Macaulay voices the sentiments of the
popular party in the throes of a furious class-struggle !

" That brow of hate, that mouth of scorn, marks all the kindred

still;

For never was there Claudius yet but wished the Commons ill;
Nor lacks he fit attendance; for close behind his heels,
With outstretched chin and crouching pace, the client Marcus

steals,

62 THE GENTES

by this enactment, which rendered clients politically
useless to their patrons.1 But in any case the insti-
tution must soon have languished from natural
causes. Many of the old gentes had perished in
the wars by the time Servius made military service
compulsory upon all landholders. The surviving
gentes lost their former solid organization after the
lands formerly held and administered as impartible
common property had been divided up among the
component families, and thrown upon the market. On
the other hand, the extension of the rights of citizen-
ship to all plebeians, and the growing power of the
Tribunes, lessened the client's dependence upon his
patron's protection. Many client families and de-
scendants of freedmen, rising to positions of dignity
and opulence, and themselves habitually holding and
enfranchising slaves, gradually withdrew themselves
from the influence of their gentiles. And since new
additions to client ranks among Roman citizens
became rarer in proportion as the institution lost its
vogue, the diminishing client class became con-

His loins girt up to run with speed, be the errand what it may,
And the smile flickering on his cheek, for aught his lord may say.
Such varlets pimp and jest for hire among the lying Greeks :
Such varlets still are paid to hoot when brave Licinius speaks.
Where'er ye shed the honey, the buzzing flies will crowd;
Where'er ye fling the carrion, the raven's croak is loud;
Where'er down Tiber garbage floats, the greedy pike ye see;
And wheresoe'er such lord is found, such client still will be."

Virginia.

1 In the comitia curiata and centuriata the patricians and
plebeian Conservatives were of themselves sufficiently powerful.

THE GENTES 63

founded amid the ever-increasing crowds of free
plebeians. Apparently by the end of the third cen-
tury of the City, the death of an intestate propertied
client leaving no child or agnate was almost the sole
occasion of practical advantage accruing to his patron.

If clients were originally barely "law-worthy,"
still less so were slaves. But there was no striking
distinction, and often no distinction. at all, of race,
appearance, speech, or manners, no instinctive re-
pulsion between owners and owned, which, in other
regions, have supplied some of the most painful
chapters in the history of human relations. Chattels
at law, ritual included them not only within the pale
of humankind, but to a limited extent even of the
family, and the simple households of earliest Rome
may have witnessed little difference in the treatment
of slaves and sons. The slave's grave, like the
citizen's, was sacred; the foreigner's was not. Only
in later times, when the bond of worship had
slackened, and multitudes of war-captives cheap-
ened human flesh and blood, was the law called
in to supply a protection no longer accorded by reli-
gion and domestic fellowship.

The mere association of kinsmanship and a com-
mon cult had proved insufficient to preserve the
vigour of gentile institutions. They were displaced
by the Roman conception of the Family as an un-
divided entity, held by tradition and habit in alle-
giance to the living common ancestor. But the whole
life of the people remained coloured by the belief

64 THE GENTES

that the protection extended by a chief during life-
time to his dependent kinsmen, remained operative
after his death. The ancestor was still the tutelary
divinity of his house; his memory continued to be
held in veneration and propitiated by the rites and
sacrifices practised by former generations. The
gentile cults, and the cults of the narrower family
circles, existed side by side. Roughly, it may be
said that whilst the latter were addressed to known
or ascertained ancestors, the former survived to
memorize unknown progenitors, from whom the
various branches of the clan professed to derive a
common origin. So indispensable was the due
performance of the sacra that even the stern Roman
military discipline was in some respects subordinated
to it. The citizen summoned to join the forces of
the State might delay his obedience until he had
fulfilled his domestic religious duties, if perchance
the day had arrived for their observance, and a
Roman might shrink from neglecting the obligatory
obsequies even during a national crisis, or under cir-
cumstances of extreme danger to life and limb.1

The consideration of the Roman Family in the
narrower sense, under the regimen of the Patria
Potestas, maybe fittingly deferred to a later chapter.

1 Livy, v, 46; xxii, 18.

CHAPTER IV

THE EARLY ROMAN CONSTITUTION

A SCIENCE of constitutional law, or indeed of
any u law " in the strict and modern sense of
the word, was unknown to the regal period and early
Republic; and even the terminology of matured
Roman jurisprudence appears to have lacked an
expression exactly corresponding with our " Con-
stitution." i Yet the relations between private citizen
and governing power, like all relations in Rome
between dependant and superior, were tolerably well
defined with the aid of those customs and conven-
tions which the founders had brought ready-made,
and seemed happily calculated to hold the middle
way between the arbitrariness of a despotic, and
the insecurity of a feeble administration. To these
customs and conventions the term Constitution may,
without abuse of language, conveniently be applied.
As the internal governing organs of the gens were

1 Cicero could find nothing better than terms such as forma,
ratio, genus reipublicae. Ulpian says jus quod ad statum rei
Romanae spectat. Instead of developing with the other branches
of the law, the doctrine of constitutional checks upon the supreme
power fell into neglect with the decay of the popular Assemblies.

F

66 EARLY ROMAN CONSTITUTION

the general body of gentiles, the council of elders,
and (originally) the princeps, so the Roman State
was made up of the citizens in the Assembly of the
Curiae (comitia curiata), the Senate, and the King.
We are tempted to think of our own Commons, Lords
and Crown, but the analogy is misleading, and only
useful as an illustration of the fundamentally diver-
gent conceptions of the State in the ancient and the
modern polity.

England knows no higher authority than the King
in Parliament. Any bill, however far-reaching and
revolutionary, having passed both Houses and re-
ceived the royal assent, becomes part of the law of
the land, which it is the legal duty of all subjects to
obey, and of every judge to apply, though they and he
consider it a monument of folly or turpitude.1 The
ground-law, or if the expression be allowable, the
old common law of Rome, was rather assumed to
rest upon the Will of the Gods (fas), to whom
opportunity was given of manifesting dissatisfaction
at any proposed legislative or executive measure
by signs and portents, which would be interpreted
in the manner described in Chapter II. The Fas
represented those elementary social principles which
human-made law, or Jus, and Boni Mores, or the

1 Few Englishmen will nowadays care to dispute that misgovern-
ment and mislegislation, by however consecrated an authority, may
reach a point where open, violent rebellion by every means in his
power becomes the subject's right and duty. But the exact limit
of endurance is necessarily determined by temperament, and not
ascertainable by scientific methods.

EARLY ROMAN CONSTITUTION 67

practices customary among honest men, might upon
occasion be permitted to amplify, but never en-
tirely to abrogate. Normally immutable, it was sus-
ceptible of modification in individual cases where
divergency involved no desecration. Among such
cases were : Adrogation, whereby a paterfamilias di-
vested himself of that quality and became alieni juris,
when all the members of his family, if any, were
brought equally with him under the power of a
stranger; and Testament, or the procedure whereby
a man secured beforehand the devolution of his
property after his death in a manner not provided
by the received rules of succession. The co-opera-
tion of the State l was invoked to dispense with the
application, in a particular instance, of divinely-
appointed general regulations,2 and in all probability
this was never done except upon emergencies for
which they did not directly provide.

The Roman system, therefore, claimed to rest
upon elementary principles of preponderatingly di-
vine origin. Mortal activity, where not purely ad-

1 The function of the curiae on such occasions (in calatis) was
passive rather than active ; they merely registered the act, and the
acquiescence of the gods therein. But it is a likely supposition
that the active consent of the community in the form of a pro-
nouncement may at the very outset have been necessary. Cf. F. de
Coulanges, Citd Antique, p. 89, so far as concerns Testament.

2 So, in England, the civil dissolution of a marriage could be
effected from the eighteenth century onwards by private Act of
Parliament until, in 1857, divorce was made possible by proceed-
ings taken before a lay tribunal.

68 EARLY ROMAN CONSTITUTION

ministrative, was limited to such supplementary
legislation as was not already contained in the frame-
work provided by the higher powers, and, at the
most, to the issue by the whole people as a body of
particular commands dispensing, by way of excep-
tion, with the ordinary rules of Fas. It will at once
be seen that the Austinian definitions of Sovereignty,
State, and Law cannot possibly be made to square
with what, in early Rome, did duty for them ; but
it is permissible and convenient to employ these ex-
pressions whilst bearing in mind the peculiar condi-
tions of the age.

The body having the closest resemblance to a
legislative Convention was called comitia curiata,1 or
assembly of all adult male citizens. It was, there-
fore, even more comprehensive than the body which
constitutes the electorate of the United Kingdom
since the extensions of the franchise during the
nineteenth century. But whereas English constitu-

1 Curia = (i) a house of sacrifice, (2) the sacrificial community.
The curia was the political unit, a collection of gentes (or portions
of gentes) settled adjacently upon lands. (Soltau, Altromische
Volksversammlungen, i, i und 3.) "Curia" (said to be derived
from the Sabine town Cures) appears to be the most likely origin
of the word " Quirites," frequently translated " Spearmen." The
jus Quiritium was the temporal law of the City, in which, origin-
ally, only members of a curia had part. Cuq (Institutions juri-
diques, 21) disputes the derivation of Quirites from quir, pointing
out that Quirites designated, above all, the body of citizens in their
civil, as opposed to their military, capacity. And the usual Roman
expressions for spear and spearman were not quir, quiris, but
hasta, hastatus.

EARLY ROMAN CONSTITUTION 69

encies return representatives with unlimited power
to legislate for them in Parliament, representative
Government was unknown in the ancient world.1
The concurrence of the whole body of Roman citi-
zens was the indispensable preliminary to every act
savouring of legislation, and so deeply rooted was
this system that it was clung to even in later ages,
when the extension of the Roman frontiers rendered
the presence of the vast majority of voters a physical
impossibility.

The comitia curiata could lawfully only assemble
on the summons of the King (or during an inter-
regnum, the interrex) as chief Magistrate, and, as I
have said, could only act after the disposition of the
gods had been ascertained, by taking the public
auspices (auspicia populi Romani), to be favourable,
or at least acquiescent. The comitia could not initiate,
nor even discuss, measures, but voted Aye or No
without debate upon those submitted by the King.
It by no means follows that the Roman people had
not the right or the opportunity of public discus-
sion. In Republican times, at latest, general meet-
ings of the people (contiones) were frequently con-
voked by the magistrates for the purpose of making
public announcements or eliciting the trend of pub-
lic opinion. Apparently in furtherance of these ob-

1 That the Roman law of agency never progressed far beyond
the embryonic stage, may have underlain the same order of ideas,
viz., that no man should be bound politically or civilly, save by
his own act.

70 EARLY ROMAN CONSTITUTION

jects, attendance at a contio, though not compulsory
upon any one, was on the other hand allowable even
to non-citizens (being freemen) who had no place in
the comitia. A meeting of a section of the people
to consider and decide upon matters specially affect-
ing itself was called concilium.

Opinions conflict upon the original composition
and numerical strength of the Senate, or Elders.
Their number was certainly 300 at the time of
Tarquin, and for the ensuing centuries. If, as is
possible, the gentes, in the earliest times of Rome,
still retained each a visible and acknowledged head,
it is extremely probable that the Senate would be
composed of such heads, nor would this circumstance
point to a fluctuating number at a time when the
members of a gens were still sufficiently numerous
to preclude its extinction. But from a very early
period Senators appear to have been appointed for
life by the King, each vacancy being filled as it
arose, and the dignity was not descendible. The con-
stitutional function of the Senate was originally to act
as guardian of the fas. It deliberated whether a pro-
posed measure was reconcilable with general prin-
ciples, and it is characteristic of Rome that a decision
which might seem to fall peculiarly within the pro-
vince of sacerdotal authority was remitted to all its
leading citizens without distinction. TheSenate's con-
currence (auctoritas) was necessary to every enact-
ment proposed by the King to the comitia curiata and
accepted by the latter: Potestas in populo, auctoritas

EARLY ROMAN CONSTITUTION 71

in senatu. In course of time it became the practice,
though by no means the duty, of the kings to ask
the approval, and thereby ensure the auctoritas, of
the Senate before submitting legislation to the people.
The Senate thus gradually assumed, side by side
with original functions, those of a Council of State,
which discussed and influenced all matters affecting
the Commonwealth; and this character became ac-
centuated under the Republic by the admission of
plebeian members, who, having ,no knowledge of
the patrician sacra, could not concur in conferring
the auctoritas. Accordingly, in course of time the
Senate, in addition to its original passive function
as a mere check or clog upon the legislature, be-
came an active deliberative body.1

The regal resembled the senatorial dignity in that it
wasnothereditary. The magisterial power resided ulti-
mately in the Senate as a whole; its exercise by only
one of that body was dictated by political expediency
and the sense of what was fitting. The primordial
social organization had rested upon the allegiance
of the members of certain well defined group-units
each to one head. It would have appeared incon-
gruous that the executive power of the Common-

1 Senatus consulit, non jubet. But, in later times again, the Senate
usurped legislative power also and exercised it, first subject to the
veto of the Emperor, then as the passive instrument of the ruling
tyrant for the time being. By the time of Ulpian that jurist was
able to state: Non ambigitur senatum jus facere posse. Dig., i,
3, 9. As to the shifting relations between Senate and Magistracy,
see Mommsen's Staatsrecht, iii, 1252 ff.

72 EARLY ROMAN CONSTITUTION

wealth should be exercised jointly by a large num-
ber of men ranking equally with each other. Ac-
cordingly, the King alone was at one and the same
time sole representative of the State in its inter-
national relations, civil ruler, military commander-
in-chief, and chief priest of the community,1 but
with power of substitution with respect to most of
his functions. On his death his delegated powers
reverted to the Senate, and, until a successor had
been duly installed, there ensued an interregnum,
during which individual Senators, designated by lot
and termed interreges, successively discharged the
regal functions, each for a period not exceeding five
days. Each interrex formally nominated his suc-
cessor, according to a rotation already settled by
lot; and the King-elect, when at last the choice
had been made by the comitia in the form of a legis-
lative act, was nominated by the interrex for the
time being in power.2 The choice of the comitia,
like every other law, required confirmation by the
auctoritas of the Senate, after which formal allegi-
ance was declared at a second meeting of the popu-
lar Assembly.

Thus the King ruled the State as the father ruled
his family, or the gentile chief had originally ruled
his clan ; the extent and the limitations of the power
were correlative. Though supreme in everything

1 Mommsen, Rom. Staatsrecht, 6.

2 The first interrex, probably because he had not himself been
nominated, could not nominate to the throne.

EARLY ROMAN CONSTITUTION 73

touching the government of the State, he was in
the position of a trustee administering a trust, rather
than a despot irresponsibly disposing of the lives
and fortunes of his subjects. It is true that his
behests, however arbitrary, had to be carried out,
and no misconduct disqualified him from further
reigning; but though he could violate the law with
impunity, we have seen that he could not make it.1
That he did not rule by divine right is clear from
the manner of his appointment, nor did the dignity
impart sacredness to his person in the sense claimed
for the Stuarts and the Louis. The Roman notion of
kingship thus differed radically from that of the
seventeenth and eighteenth centuries, or even of
important portions of present-day Europe, where
royalty existed and exists apart from any question
of its inherent usefulness.

The root-notion of Roman political institutions
was, therefore, as we were justified in expecting,
identical with that upon which the Family System
was based. It started by postulating the natural
equality of all citizens and citizenesses ; but this
natural equality the Romans had no hesitation in
modifying, or even converting into its antithesis,

1 It is important to observe that a Roman enactment was
essentially an agreement between King and People, and was con-
cluded by question and answer, in form closely resembling the
private contract by stipulatio common in later ages. Lex (ligare
= to bind, whence also obligatio) meant any kind of obligation
voluntarily undertaken, and was applicable to private treaty as
well as to enactments by the comitia.

74 EARLY ROMAN CONSTITUTION

where practical considerations seemed so to require.
Women were not less esteemed than men, yet the
Romans, realizing that the former, in the then con-
ditions of life, were unable to discharge the chief duties
which a State necessarily imposed upon its citizens,
hesitated not, in relieving them of responsibility, to
deprive them also of the political power and influence
which responsibility connoted. So again the Romans,
whilst recognizing the equality of all citizens, cheer-
fully surrendered their fortunes and liberties into the
hands of one man in deference to what experience
had demonstrated to be, on the whole, the salutary
rule of undivided command. But every Senator was
eligible for the kingship or consulship, and every citi-
zen, at least from very early times, might aspire to
become a Senator.1 The whole of the political power
capable of being wielded by the community was re-
cognized as being in the last resort in the people, who,
through the medium of the Senate, transferred the
executive part of it to their acclaimed ruler for his life.
Accordingly Rome, even under its Kings, was never a
true monarchy, but a community of free citizens who,
in the interests of the common weal, submitted to
be controlled by one of their number. The abolition
of kingship, on the deposition of Tarquin the Proud,
merely signified that the powers and privileges
hitherto irrevocably vested in one person, were now
distributed among several, who, in the case of tem-

: Plebeian citizens, however, as we shall see later, were not ad-
mitted to the consulship until the fourth century of the City.

EARLY ROMAN CONSTITUTION 75

poral offices, held them for one year only. The
sovereignty of the people was, as we have already
seen, to some extent subjected to restraints which
no mundane power could override. In special cases
the comitia, in the teeth of fas and custom, would
allow the conversion of paterfamilias into filius-
familias, change the ordinary course of devolution
of property upon death, or pardon an offender whose
life was forfeit to the just anger of the gods. But
they could not deprive a citizen of his citizenship so
long as he remained in the City, or even in Latium;
to do so it was necessary to sell him as a slave
" beyond Tiber," that is, to the strangers and enemies
in the North. Neither, it would appear, could the
State at first demand from the citizen any part of his
property. Direct taxation, levied in times of stress
was. strictly speaking, repayable, and somewhat in the
nature of those forced "benevolences " with which our
own forefathers were painfully familiar. Service in
the field, and labour in times of peace, the King could
indeed require, though, as regards the former, again,
the people's assent was necessary before an aggres-
sive war could be undertaken ; but the State revenue,
apart from enforced gratuitous services, was ordin-
arily supplied chiefly by the income from the State
domains, the customs and dues levied at Ostia, fines
paid by unsuccessful litigants, and the proceeds of
campaigns against neighbouring cities.

Patrician membership of a gens was, in the first
centuries of Rome, the indispensable condition of

76 EARLY ROMAN CONSTITUTION

full citizenship. No client, nor person of patrician
descent but not belonging to a gens,1 could have
part or lot in the administration or hold public office;
and if clients were allowed in the comitia it must
certainly have been in the quality of attendants and
backers of their patrons, rather than of independent
coadjutors. In addition to client freemen having, in
strict law, no civic rights, but in practice indirectly
exercising them through the gentes to which they
were attached, there gradually grew up in and around
Rome a free, but non-citizen population without per-
sonal attachment. A vanquished town might some-
times make terms with the conquerors, and continue
its physical existence, together with the enjoyment of
all or part of its lands, at the price of the surrender
of its political importance and complete subserviency
of its own to the Roman foreign policy. But more
frequently the consequence of defeat was uncon-
ditional deliverance into the enemy's hand, and total
destruction of the city, or at least the expulsion of
its inhabitants, whose places were then taken by
needy Roman colonists. In the former case the van-
quished populations were disarmed,2 and placed
under the protection of Rome as " clients of the
King," that is, of the State. In the latter, they
were settled in Rome, where their gentes were fre-
quently admitted into the Roman patriciate, whilst
the common people became "the crowd" (plebs),

1 E.g., any one born of patrician parents but not ex justis
nuptiis. 2 Livy, iii, 19.

EARLY ROMAN CONSTITUTION 77

whose freedom indeed, as Latins, could not be taken
from them, but disentitled alike to patrician privilege
and the protection extended to clients.1 The de-
liberate annihilation of the Alban polity immensely
strengthened, materially and morally, the Roman
position in Latium. Not only did the survivors rein-
force the ranks of the victors, but Rome's ambition
to rule Latium now for the first time received re-
ligious sanction. For, agreeably with contemporary
notions, the Romans could claim to stand towards
the other States in the shoes of Alba, whose shadowy
presidency over Latium their practical spirit found
means to transfer into a substantial political pre-
dominance, which soon assumed the form of a suze-
rainty, and justified in appearance the fate of those
cities which were sufficiently impious or ill-advised
to rebel.

All accessions, however, were not gained by
violent means, for even during the first centuries
the commercial position of Rome attracted many
strangers, often accompanied by their families, whom
a far-seeing Government wisely suffered to abide
unmolested. The last-named class would naturally
be recruited chiefly from the intelligent and enter-
prising population of all the middle Italian lands,
and no doubt contributed materially to the mental
and physical strength of their adopted city. Thus
did Rome's growing might and prestige swell the
stream of voluntary and involuntary immigrants,

1 Livy, i, 33.

78 EARLY ROMAN CONSTITUTION

who, at a comparatively early period, must already
have outnumbered the old burgher element.

We are now able to sum up more or less ade-
quately the salient characteristics of the Roman
community at the outset of its long struggle for the
supremacy of the world. It was first and foremost a
community of agriculturists and cattle-farmers, pos-
sessed of all the qualities usually associated with a
thrifty peasantry, deeply imbued with religious feeling,
steeped in superstition, yet preserving withal a shrewd
judicial mind, even in its dealings with the gods ; very
acquisitive and litigious, very full of worldly wisdom
and plain common sense. But it was also a com-
munity which had become partially industrialized
through the influx of enterprising and frequently
wealthy immigrants, whom its liberal and stable
institutions attracted. Its leading politicians were
capitalists1 as well as soldiers, its aggressive wars
were fought for economic benefits as well as glory.
Allegiance to the City, the bulwark equally of mate-
rial and political prosperity, took its place quite
naturally beside the habitual allegiance to gens (if
any) and family. The first requirement of such a
community is public order and equal subordination
of all to the law.2 The harshest sanctions of proprie-
tary and contractual rights merited the approval of a
body of men who took themselves and their duties

1 "Seit Rom stand wa daselbst das Kapital eine politische
Macht" (Mommsen, Romische Geschichte, iii, 15).

2 Cicero, De Rep., i, 45; iv, 2.

EARLY ROMAN CONSTITUTION 79

seriously. The dread of their enforcement, usually
sufficient to secure respect for property and due
satisfaction of obligations, went far to supply the
want of a regular police, and cure the defects in-
separable from a cumbersome administration. Muni-
cipal law among most archaic peoples, and again in
the commotions of the Middle Ages, somewhat re-
sembled, in its uncertainty and the incompleteness of
its sanctions, the Public International "Law" of the
present day. The necessities of the Roman com-
munity hastened the formation and well-reasoned
development of definite judicial norms by the co-
operation of men standing in the very centre of
public affairs.1 Such a community allowed small
scope for individual idiosyncrasy or vagaries of
temperament. It scrutinized with true Republican
jealousy both the visible eccentricities of vanity and
the outward signs of pre-eminence. Within the City
all must go on foot, save the specially privileged
vestals and the King, and after the suppression of
the latter even the Consuls walked. The dress of
magistrates, senators, and private citizens, save for
trifling distinctions, was uniform.2 To wear unper-
mitted, save on occasions of special rejoicing, the

1 Cf. Cic., De Orat, i, 44.

2 The toga (tegere = to cover, perhaps allied with the Anglo-
Saxon teog, and the German zeug = stuff, material) was the char-
acteristic dress of Romans in times of peace. " Romanes, rerum
dominos, gentemque togatam" (Verg., Aen., i, 282). The Gauls
were called " breeched " (braccati).

So EARLY ROMAN CONSTITUTION

garland reserved for distinguished warriors on the
days of their triumph was accounted akin to treason.1
Even the ancestral cult might not be pushed to
capricious extremes, and only eminent families might
retain the waxen masks of departed forefathers, and
display their features in the funereal processions of
prominent members. The citizen must be frugal of
living,2 dignified of bearing,3 moderate of speech.
Above all, he must be sober of thought. The Roman
never snatched at the unattainable, and never cried
for the moon. Although he imported into his own
legal system whatever appeared practical and useful
of the known Hellenic institutions, he never, even in
later ages, really assimilated the philosophical and
idealistic products of the exuberant Greek imagina-
tion.

1 Pliny, Hist. Nat., xxi, 6. Caesar was grateful to the Senate
for allowing him habitually to cover his baldness with a chaplet.

3 See Cato's recipes, De Re Rustica, Ixxvi ff. Among the earliest
Romans a thick kind of gruel (puls) was the commonest food.
Meat was comparatively seldom eaten; bread or cake was used
only at sacrifices.

3 The citizen walked with stately gait; slaves bustled.

CHAPTER V

THE REFORMED CONSTITUTION OF SERVIUS TULLIUS

ROME'S elevation to the metropolis of Latium
brought with it the usual economic concomit-
ants: mercantile expansion, increase of wealth, and
a large accretion of strangers. The policy fol-
lowed respecting the last-named was, upon the
whole, not unworthy a State which aspired to a
spacious and splendid future, and Rome soon cir-
cumvented the rule (natural enough to the ancients)
that men who had no part in the City cult could
not invoke the City law.1 To Latins and aliens
(peregrini) was extended, in fact, if not in law, the
commercium; they were suffered not only to reside,
but unmolested to carry on business in Roman
territory, and enjoyed at the hands of a liberal
administration that protection of person, property,
and contractual rights which the law itself as yet
denied to non-citizens. Even the virtual ownership
of Roman soil was permitted to Latins, though prob-
ably not to peregrini. Religious, as well as political,
scruples may have prompted this last restriction, as

1 Die alte Zeit ruht auf dem Gegensatz einander ausschliessen-
der Gemeinden und Staaten. Sohm, Inst. d. Rom. Rechts., 80.

G

82 THE REFORMED CONSTITUTION

they certainly dictated the limited application of the
jus connubii. The desire to safeguard the sacra
had formerly prompted a jealous supervision of
matrimonial alliances which might endanger them,
and marriage between members of different groups
was still hampered by the ideas of more ancient
ages. A Roman citizen could not contract justae
nuptiae with an alien unless a special treaty author-
ized "just marriage" between the nationals of the
two States. Even unions between Romans and
Latins belonging to one of the anciently federated
cities were similarly treated, for since Rome had
become arbiter of Latium, connubium was only
granted as a favour. Within Rome the conditions
were still less satisfactory. No international treaty
could be concluded between the State and a portion
of its own citizens; hence inter-marriage of a Roman
patrician with a plebeian, although socially recog-
nized, failed to establish manus to the husband,
or patria potestas over his issue, and disqualified
him for the higher priestly dignities. Until the
nettle was firmly grasped three centuries after the
City's birth, the anomalous position endured that a
Roman citizen might contract with a foreigner a
marriage of full legality, which was under no cir-
cumstances possible with a large portion of his
countrywomen.

At some uncertain epoch of the regal period the
patriciate became alive to the necessity of modi-
fying the policy hitherto observed towards the

OF SERVIUS TULLIUS 83

" Uitlander " element. Deprived of the privileges of
citizenship, some of which were formal only, stranger
denizens also escaped its burdens, which were very
real. Enjoying all the material advantages of resi-
dence in a well ordered and commercially progres-
sive community, they were exempt from military
service, the corvees, and the compulsory loans which
then took the place of direct taxation. The patriciate,
with such assistance as they could claim from their
clients, furnished the labour for the public works, and
assisted the Government in its financial straits. And
upon the patriciate, as the Populus or people,1 de-
volved the heavy strain of maintaining by force of
arms the political supremacy which plebeian and
stranger joined them in exploiting. With the march
of events the position had become untenable. Con-
stant wars, waged partly from necessity and partly
from ambition, drained the patrician element of its
best blood, and threatened it with an ultimate exter-
mination, only temporarily retarded by occasional
admissions of new gentes into the Roman patri-
ciate from vanquished neighbouring cities, or as
voluntary recruits.

1 Populus, allied with populari (to ravage or devastate), sig-
nified as much Army as People, and under the earliest constitution
could only apply to the patriciate. After the recognition of the
centuriae as a legislative body, populus would include both patri-
cians and plebeians. It is only in much later times that populus
could be used, as " people " is often colloquially used in English,
to mean the commonalty, and sometimes the poorer commonalty,
only.

84 THE REFORMED CONSTITUTION

To meet these dangers was the avowed purpose
of the various reformatory measures, probably in-
augurated on the model of the Grecian colonies of
southern Italy, in the reign of the sixth King of
Rome, Servius Tullius, and named after him. The
Servian reforms may have been merely what on their
face they appeared to be — a makeshift dictated by
political exigences — or a scheme designed by far-
sighted statesmen, compelled to study, whilst dis-
daining, the narrow prejudices of the patricians,
and leaving to the logic of events the full fruition
of their plans.1 Their immediate effect, however,
was to cause the stranger population to share the
burdens of the burgher class without corresponding
increase of rights. The first act was probably to sub-
ject all residents, whether citizens or non-citizens,
and whether occupying land or not, to the imposi-
tions decreed by the King in the public interest.
This was succeeded by the step — vastly more
important in its ultimate consequences — of trans-
forming military service from a personal obliga-
tion of the citizen into an incident of land tenure,
irrespective of the holder. All landowners (assidui),
whether patrons, clients, or plebeians, together with
all adult males in their power, now alike served in
the ranks.2 The older division of the population

1 Cf. the various authors cited by Soltau in his Altrom. Volksvers.,
p. 231 ff.

2 Landowners, whom sex or youth disqualified from military
service, supplied horses for the cavalry, and their fodder.

OF SERVIUS TULLIUS 85

into patricians and clients was superseded, for the
purpose of the new reforms, by the division into
landholding burghers and their clients, landholding
Latins (foreigners other than members of the fed-
erated Latin cities being probably barred from
acquiring land interests), all of whom were now
liable to taxation and military service, and non-
landholding citizens and denizens, liable to taxation
only. Probably military service was graduated so
as to call the poorer classes, who could not leave
their farms without loss and suffering, less fre-
quently to the standards than the more fortunate
of the population, a relief which was held to justify
the preponderance of voting power accorded to the
latter in the later comitia centuriata. Yet plebeians
became either at once or very soon eligible for mili-
tary command, and what we know of the usual order
of battle-array certainly acquits the patricians of
any tendency to spare themselves.

Incidental to this reform was the institution, or, at
all events, the more regular practice of a system of
land registration, and the periodical enrolment of
citizens. It had become a matter of public import-
ance that there should be an authentic record of all
freeholders, and this was only possible by the estab-
lishment of a register, somewhat on the principle
of our Domesday Book, which was subjected to
periodical revision in order to record changes of
interest. Similarly, it became necessary that con-
veyances of land should take place with publicity,

86 THE REFORMED CONSTITUTION

and by certain unmistakable tokens. Hence the
important part played by Mancipation in the law of
property during the ensuing centuries. And it is
probable that the system of collective landowner-
ship, now almost the last mainstay of the gentile
organization, received its death blow from the Ser-
vian reforms.

Whether or not it had been intended that the
centuries, into which was divided the reinforced
Roman army, now increased to some 20,000 men,
should develop into a regular political assembly
and have a voice in affairs of State, such was the
inevitable outcome. The age-limits for military ser-
vice were from the seventeenth to the sixtieth (for
service in the field only to the forty-sixth) year;
but older men of course voted in the century in
which they had served when the citizens assembled
centuriatim as a political body. The Assembly of
the Centuries being, in theory, the mobilized army, •
always met outside the City wall, whilst the curiae
or Assembly of Burghers in their civil capacity, in-
variably met within.1 That the comitia centuriata,
the People in Warlike Array, should decide, in pre-
ference to the comitia curiata, upon the question of

1 More precisely, within the Pomerium. The exact meaning of
Pomerium has no bearing upon our subject; it is discussed in the
chapter, Der Begriff des Pomerium, in Mommsen's Rom. Forsch-
ungen, ii. The above rules were invariably followed by the older
Assemblies of the Curiae and Centuries. The later Comitia Tri-
buta and plebeian Concilia were less regular in their practice.
Mommsen, Staatsrecht, iii, 378 ff.

OF SERVIUS TULLIUS 87

Peace or War, was the first and most obvious step
towards legislative power; and this was succeeded
by gradual further encroachments. The comitia cen-
turiata comprised all the members of the older body
(save in those rare instances where a citizen pos-
sessed no land), as well as the newly admitted ele-
ments, containing many men equal in intelligence and
wealth with their patrician comrades ; they therefore
assumed from the first a character more representa-
tive of the community at large. Nor was the innova-
tion of a nature to greatly alarm the patricians. The
artificial organization of the centuries, and their
cunningly manipulated relative voting power, con-
ferred upon the wealthier classes an overwhelming
predominance; at the same time the presence of
plebeians in those classes, whilst tending (for the
present) to strengthen the position of the governing
order, deprived in appearance the new assembly of
the invidious exclusiveness which characterized the
old. To the Assembly of the curiae, when once the
new order of things had become established, re-
mained, besides formal State functions, for instance,
the declaration of allegiance on the appointment of
a new King (under the early Republic, Consul or
Dictator), only its legislative competency in curial,
gentile, family matters, such as Arrogation and testa-
mentary declarations. Upon the establishment of
the Republic its degradation was strikingly exposed,
and its ancient significance for ever destroyed, by
extending the suffrage even to plebeians who had

88 THE REFORMED CONSTITUTION

not availed themselves of the newly acquired right
to form plebeian gentes.

NOTE TO CHAPTER V

In his learned but highly controversial treatise Ueber die
Entstehung und Zusammensetzung der altromischen Volksver-
sammlungen, Dr. W. Soltau seeks to show that from the beginning
non-patricians formed part of, and voted in, the comitia curiata.
The intimacy of the religious bond uniting patrons and clients
might tend to support the proposition, so far as it relates to the
latter, but for the sharp distinction which we should expect the
earliest Romans to have drawn, and which apparently they did
draw, between public and private relations. One may admit (as
do Niebuhr and others) the participation of clients with the
patricians in the curial sacra, and even their presence in the
comitia curiata calata, and the contiones, but scarcely the active
influence over public policy which the suffrage in the comitia
implies. And it appears incredible that this latter right should
have been exercised by non-client plebeians in regal times, at
least in the more strictly constitutional period before Servius
Tullius. It is true that Soltau is careful to exclude from the
plebeian voters (i) residents enjoying only commercium and
connubium without political rights; (2) Forctes and Sanates, or
Latins forcibly converted into Roman subjects; and (3) the
majority of Roman freedmen (libertini). After making these de-
ductions, it is not clear what important class of plebeians, other
than clients, would remain to assist and vote in the assembly of
the curiae, but the acknowledgement of any non-client plebeian
element in the comitia curiata at so early a period involves
consequences, which the majority of modern Romanists concur
in rejecting; and although Soltau anticipates and ably deals with
the obvious objections to his theory, I cannot think that he con-
vincingly disposes of them.

i. The participation of non-client plebeians is opposed by reli-
gious obstacles which Soltau appears to insufficiently appreciate,

OF SERVIUS TULLIUS 89

if we bear in mind the characteristics of the period under review.
For instance, one of the chief functions of the comitia was to
supervise and control the individual gentes in vital matters like
Testament, Adrogation, and detestatio sacrorum. It is impossible
to suppose that the concurrence of plebeians, having no gens
and no recognized religion, could have been tolerated in such
functions. Soltau accordingly assumes (p. 89) that even non-
client plebeians may from time immemorial have had gentes of
their own. I can neither find sufficient support for the theory
nor approve his interpretation of Cicero's definition : " Gentiles
sunt, qui inter se eodem nomine sunt; non est satis: qui ab
ingenuis oriundi sunt; ne id quidem satis est: quorum majorum
nemo servitutem servivit : abest etiam nunc : qui capite non sunt
deminuti." On this head I must refer generally to subsequent
chapters.

2. It is highly improbable that any unattached plebeian element
existed in Rome till commerce and the fortune of war brought it
thither. Trading strangers, intent only upon their traffic, and con-
tingents from vanquished populations, ruined and rendered home-
less, godless and destitute of every tie which bound men together,
cannot have been admitted to the franchise to vote on equal
terms (viritim) with their conquerors upon internal and external
affairs of vital importance to the State, such as peace or war, and
the election of Kings. We know that the Romans wisely en-
couraged immigration, but no polity is sufficiently stable to endure
the presence in its sovereign body of masses of men entirely out
of sympathy with it. Therefore it would have been necessary, as
Soltau foreshadows, to sharply distinguish between various classes
of plebeians in order to eliminate the naturally disaffected; and
the absence of all allusion to so important an item in the scheme
of government is stranger than the failure of ancient historians to
deal with the admission of plebeians to the curiae in the post-
regal period with the clearness and prominence due to so import-
ant an event (p. 80).

3. To grant the above proposition involves an entire revision of
our view relating to the institution of the order of the Centuries,
as an enlightened measure tending to a juster distribution of
political power and responsibility, whilst materially strengthening

90 THE REFORMED CONSTITUTION

the Commonwealth. But the supersession of patricio-plebeian
comitia curiata, with equal voting power, by the oligarchically
ordered centuries would represent the most retrograde and re-
actionary step known to history, a deliberate transition from
advanced democracy, tempered by kingship, to the unbridled
rule of a wealthy monopolizing minority. The political acumen
displayed by the Commons, and the steady progress of the
popular power during the first three centuries of the Republic,
are in strange contrast with so sinister a process. It is prefer-
able to believe that the admission of plebeians to the comitia
curiata was only achieved when that body had already been
replaced for most purposes of practical politics by the comitia of
the centuries, in which the plebeians were already, albeit inade-
quately, represented. It was a further concession to the plebs,
which they had earned by their co-operation against the common
tyrant, and which, in the altered position of the assembly, no
longer appeared dangerous to the patriciate.

4. If the Constitution had permitted the presence of independ-
ent plebeians in the comitia, the Kings, whom the plebs would
always support as its natural protectors, would have habitually
utilized the popular body as a convenient counterpoise to the
Senate. There is no indication that any such policy was con-
sistently followed.

5. To mitigate the above and other considerations, Soltau finds
himself impelled to a course of reasoning which ends in denying
all political significance to the comitia curiata from the outset,
places all practical sovereignty entirely in the hands of King and
Senate, and degrades the Roman to the level of the Zulu polity
in the days of Tshaka. A lex curiata is no longer a pact or treaty
between King and People, binding both, but something imposed
by the mere will of the former upon the latter. Lex is derived
not from ligare but from legere. Yet we find this abject and
powerless body of citizens claiming to elect a king (Livy, i, 17),
and electing Tullus Hostilius (ibid., i, 22), Ancus Martius (ibid.,
i, 32), Tarquinius Priscus (ibid., i, 35), before their accession.
Servius Tullius, who first ascends the throne without the people's
order (injussu populi), but with their goodwill and consent (Cicero,
De Rep., ii, 21), as well as that of the Senate (Livy, i, 41), never-

OF SERVIUS TULLIUS 91

theless, after many years of a successful and popular reign, " regu-
larizes " his position by soliciting election at the hands of the
people (ibid., i, 46). Tarquin the Proud alone, in an age of grow-
ing disorder, though he condescends to canvass for popularity
(ibid., i, 47), affects to reign without the people's consent, and is
deposed for this and other violations of the Constitution. See
also the corresponding accounts of Dionysius, ii, 15; iii, i, 12, 15;
iv, i, 10.

CHAPTER VI

THE REVOLT OF THE ARISTOCRACY (CIRCA 243 URBIS,

510 B.C.)1

ORIGINALLY operating largely as an instru-
ment of class selfishness, the Servian Consti-
tution really represents the first step towards the
ultimate overthrow of patrician supremacy. The
abolition of the kingship, by accentuating the dis-
parities, precipitated the struggle between the privi-
leged and the non-privileged classes: the Servian
reforms supplied the vantage-ground from which
the latter conducted their fight for political equality.
The old simple division into citizens with equal
political rights, and a class with neither rights nor
liabilities, save such as were incidental to public
order and decorum, had yielded to an arbitrary
system which cast upon all men the burden, and
withheld from most the advantages, of civic life.
The most "democratic" (in the modern sense) of
societies, considered apart from the rest of man-

1 The date is open to doubt, as is the entire chronology of the
regal period. It seems improbable that only seven kings, three
at least of whom are said to have been removed by violent means,
should have reigned during nearly two centuries and a half, a
period not reached by any seven consecutive Roman emperors or
English monarchs.

92

REVOLT OF THE ARISTOCRACY 93

kind, the patriciate, through the effects of warlike
conquests and organic changes in the body politic,
had developed, as against the generality of the in-
habitants, into an aristocracy, with all an aristocracy's
usual virtues and failings — the latter as yet un-
checked by the criticism and the example of a powerful
middle class. The bulk of the non-patrician orders
resented their poverty, and all of them the degrada-
tion of their political and religious disabilities, the
more keenly as their own prowess contributed to
win for the City the glory and material advantages
of successful warfare, which the patricians then con-
trived nearly to monopolize. But so long as the
regal power overawed alike gentes and plebs, the
oppression of the latter was mitigated or disguised.
The hand of the King lay heavy upon all, but
heaviest upon those whom wealth and position
marked out as specially fit to bear the burdens
inseparable from a policy of foreign expansion;
whilst proximity to the throne exposed them to the
malice, caprice, and arrogance of a haughty despot,
whose growing sense of irresponsible power was
uncurbed by the conventions of former ages.

It has been urged with some plausibility that
Rome itself had fallen under the dominion of alien
invaders; that the conquests of the later reigns
had been achieved under foreign leadership, as
Saxon England, after having succumbed to the
Normans, itself subjugated Normandy and Ireland
under the first two Henrys; and that the aboli-

94 REVOLT OF THE ARISTOCRACY

tion of kingship was the consequence of success-
ful armed revolt resulting in the expulsion of a
foreign tyrant. Colour is lent to this theory by the
fact that the last three Roman Kings were almost
certainly of non-Roman extraction, that Etruscan
chiefs had succeeded in establishing their rule in
parts of Italy farther south than Latium, and by the
peculiar hatred of the mere name of king (as applied
to a temporal ruler) which later Romans consist-
ently manifested. Yet the revolution which cul-
minated in the expulsion of Tarquin the Proud, and
his gens, is also explainable by normal domestic
developments. Rome had become a ruling city, but
its empire was maintained by grievous imposts
upon the population, whilst the privileged class,
which alone derived countervailing benefit from the
political situation, was indignant and alarmed at the
lawless encroachments of the executive. The ac-
counts of Livy and others seem to demonstrate that
the reigns of the last three Kings were periods of
growing internal disorder. Warlike triumphs had
inflated their pride, developing an inclination for
pomp and sumptuousness, as well as contempt of
traditional usage and a dangerous disregard of con-
stitutional forms.

The legal machinery for dethroning a King, or
otherwise punishing his misrule, was wanting in
Rome as completely as it is wanting in England,
and the Romans had not invented those ingenious
checks which now guard our English liberties.

REVOLT OF THE ARISTOCRACY 95

Finally, the arbitrariness of the second Tarquin
brought about a compact between the patrician aris-
tocracy and the better-class plebeians, as the pre-
tensions of the second James produced the temporary
alliance between the parties afterwards known as
Tories and Whigs, which resulted in the English
Revolution, the Bill of Rights and the Act of
Settlement. The spirit in which the change was
effected eloquently testifies the sobriety and political
maturity of the Roman people. The* conservative
character of the English Revolution is rightly in-
sisted upon by Lord Macaulay. That of the Roman
was more so.1 Disguise it as they might, the English
gentlemen in Convention assembled were not a
legally constituted body, and the dynastic change
they effected was grounded upon a palpable sub-
terfuge. Less formidable difficulties confronted
L. Junius Brutus and his colleagues. No kingly
family had had time to establish a line of dynastic
descent, and the sovereign power residing in the
people, which they had theretofore transferred irre-
vocably to one man for life, could, without undue
straining of the Constitution, be conferred for a
limited period, and upon two or more persons.
Sacral law, indeed, it was deemed dangerous to
interfere with openly, and its requirements were
thought to be satisfied (or possibly the gods hood-
winked) by allocating the title of King(rex sacrorum)
to the least powerful official of the new government,
1 Cf. Bryce, Studies, i, 169.

96 REVOLT OF THE ARISTOCRACY

who was invested for life with certain of the religious
duties formerly discharged by the head of the State.
All executive functions, that is tosay all political powers
capable of being abused, were henceforward vested
for the period of one year jointly in two officers
of State, called in the beginning Praetores, Judices,
or Consules, the last of which titles soon prevailed.1
The Consuls were elected by the comitia cen-
turiata, and nominated by their predecessors, the
function of interrex being now exercised only in
cases where such nomination had for any reason
been omitted; and from this time probably dates
the definite recognition of the Assembly of Cen-
turies as the regular law-giving body. The com-
mand of either Consul was equally efficacious with-
out the assent of his colleague, but was annulled by
the latter's active dissent.2 In the field, the com-
mand of the troops alternated between the Consuls
daily, unless operating at a distance from each
other when, as frequently happened, hostilities were
proceeding in more than one theatre of war. Each
Consul appointed half the officers of the army. As
in the case of the King, no Consul was responsible
for his acts so long as he retained the imperium.
At the end of his term he became again a private

1 Consules may mean "those who leap or dance in company,"
alluding to the rites to be performed by both the magistrates.
More probably the expression implied co-deliberation, whence
consilium, " a sitting together," as distinguished from concilium,
"a calling together."

2 Mommsen, Rom. Staatsrecht, 28 ff.

REVOLT OF THE ARISTOCRACY 97

citizen, amenable to the law, and answerable for any
misdeeds committed during his tenure of office.

Apart from the check to tyranny which the re-
stricted term of the office afforded, some important
limitations of the consular power were devised by
the leading politicians :

1. Although the Consuls, and not the Rex Sacro-
rum, offered up prayers and sacrifices, and consulted
the auguries on behalf of the community, they
had not, like the King, the nomination to the priest-
hood. Vacancies in the priestly and augural colleges
were filled by cooptation. Non-collegiate priests, and
vestals, were appointed by the College of Pontiffs
under the presidency of its Pontifex Maximus.

2. Crimes being deemed to be committed against
the gods, even the King had had no prerogative of
pardon. On appeal by the criminal to the people
(provocatio), however, the latter might, in the exer-
cise of their supreme power, and provided the
auspices permitted, decide that the offence should
go unpunished. But if the King refused to permit
the appeal to be made, the people could not prevent
the sentence from taking effect. By the lex Valeria
245 urbis, it was taken out of the Consul's power to
refuse to allow such an appeal where the offence was
not military, and the decreed penalty was death, exile,
or stripes. The provision was extended by a later
enactment to the infliction of heavy fines; and these
legal safeguards of the citizen's person l and pocket
were subsequently re-enacted by the XII Tables.

1 Acts, xxii, 25 ff.
H

98 REVOLT OF THE ARISTOCRACY

3. The King, as the person in whom the sum
total of the executive power resided, had been able
to exercise it personally or to delegate it at will.
This discretion was now limited in important par-
ticulars. Already in the early years of the Republic,
civil suits were decided by inferior magistrates or pri-
vate citizens appointed for the purpose (in judicio),
the Consul taking an active part only in the inter-
locutory stages (in jure). Two Quaestors exercised
ordinary criminal jurisdiction as delegates of the
people, rather than of the Consuls. Treason was
dealt with by two extraordinary functionaries called
duoviri perduellionis. The Quaestors also acted as
guardians of the Exchequer, assuming a supervision
and an indirect control in matters of supply.

4. A natural consequence of the revision of the
Constitution was the abolition of the oppressive
privilege formerly enjoyed by the Kings of having
their land cultivated by the community free of charge
to themselves.

The comitia curiata, whose dwindling significance
is referred to in the foregoing chapter, had been now
superseded for most purposes as the chief legislative
body of the State by the Assembly of Centuries,
and citizenship had become the birthright of every
inhabitant of Rome, except slaves, and aliens enjoy-
ing only hospitium (guest-right), or commercium.

Notwithstanding general advantages, the new
constitutional changes brought detriment to import-
ant sections of the population. The King had stood

REVOLT OF THE ARISTOCRACY 99

in the position of overlord de jure to the State clients,
and de facto to all other plebeians, who had ex-
pected and received from him that protection which
the secular law generally refused them. Such a
position was clearly incongruous where the magis-
trates were private citizens invested temporarily
with limited executive power, and with the king-
ship fell the chief bulwark behind which the more
helpless of the plebs sheltered from the oppression
of the favoured caste.

Whilst in the City the Consuls were far less
despotic and awe-inspiring than their regal prede-
cessors, the community still recognized the danger of
dividing or curtailing the authority of the general in
the field. A Consul was freed from the new consti-
tutional checks whilst directing military operations.
He had, moreover, the right of nominating an
"Army-Master" (magister populi) or Dictator,1 in
whom were temporarily revived all the powers of
the former Kings, including even that of disallowing
the provocation, and who was not accountable for his
official acts when retiring into private life. But the
Dictator's term of office came to an end with that of
his appointer, and in any case after six months, the
period of a normal campaign. On the analogy of
Consul and Quaestor, the Dictator was bound to
appoint as subordinate coadjutor a Master of the
Horse, magister equitum.

1 Cicero, De Republica, i, 40. Though the occasion of a Dic-
tator's appointment was nearly always a warlike emergency, his
authority was not confined to the camp.

CHAPTER VII

THE STRUGGLE OF THE ORDERS BEGINS

FROM their own point of view the patriciate,
and, to a lesser extent, their wealthy plebeian
allies also, had successfully solved the constitutional
problem. Arbitrary government had been confined
to a point sufficiently guaranteeing the liberty of
the subject, whilst provision had been made for
emergencies where wide discretionary power could
not safely be dispensed with. The revolution made
the chief magistrates largely amenable to the Senate,
whose members alone in time became eligible for
the consulship. The Senate comprised since the
overthrow of the kingly power, and probably as the
reward, stipulated beforehand, of plebeian assist-
ance, a large number, perhaps a majority, of the
lower order, who, however, whilst entitled to vote on
a division, could not take part in the deliberations
(concilia), and being by reason of their religious dis-
abilities debarred from concurring in the auctoritas,1
naturally as yet only indirectly influenced the course
of government.

1 Plebeian Senators were called conscripti, the full Senate was
usually designated by the term patres (et) conscripti — "Lords and
Associates."

100

STRUGGLE OF THE ORDERS 101

Through their formal admission into the State, the
general body of the plebeians had acquired the citizen
privileges of jus Quiritium, patria potestas, Testa-
ment, curial and gentile organization. The differ-
entiation between civil and martial law had sub-
stantially progressed; and both were becoming dis-
entangled from ritual. The inclusion of all citizens
under the law of the City now sharply distinguished
Romans from Latins and foreigners, and further ac-
centuated the national and patriotic sentiment which
in Rome, even whilst internal discord raged, domin-
ated patrician and plebeian alike.

But the rigid gentile system, by prohibiting the
connubium, perpetuated the unnatural separation of
the two orders. A patrician woman intermarrying
with a plebeian lost the gentilitas, and a plebeian
woman intermarrying with a patrician did not gain
it. Such unions entailed important legal disadvan-
tages and were moreover decried as incomplete and
irregular by the more straight-laced of the patricians.
The only remedy would have been to override gen-
tile custom in one of its most sacred phases by a
purely secular enactment, and for this public opinion
was not yet ripe.

Not only were even the most eligible plebeians
practically debarred from intermarriage with pa-
trician families; religion stood in their way in
every department of civil life. Although the secu-
larization of the law was proceeding apace, no
plebeian could yet take any leading part in the

102 THE STRUGGLE OF THE

rites which dominated every public act; and the
privileged class alone knew the formulae for deter-
mining those days upon which public, particularly
judicial, business might or might not be lawfully
transacted1 (dies fasti, comitiales, nefasti). Offices
of the State therefore devolved as of course upon
patricians exclusively : the appointment of a plebeian
Pontiff or Consul would, in early republican days,
have appeared sacrilege, and scarcely less so the
admission of the plebs to the minor magisterial
offices.

This inequality had always existed, and since, at
all events, the Servian reforms it had existed as
a genuine grievance. But the full pitch of its
odiousness now for the first time appeared. Strained
relations between the Kings and the Senate had
driven the former to look for a measure of moral
support to the plebeians, whom in return they pro-
tected from the grosser forms of oppression. The
revolution had thrown all the power of the State
into the hands of the Senate and Magistrates, with
unlimited opportunities to abuse it. The Consuls,
themselves members of the patriciate, and raised
above their fellows only for a brief space of time,

1 Ille nefastus erit per quern tria verba silentur; Fastus erit,
per quern lege licebit agi. Ovid, F., i, 47. The three words (do,
dico, addico) represent the solemn form which preceded judge-
ment. Days nefasti (religiosi, vitiosi) were times of purification
or festival, or the anniversaries of some great disaster. And see
Varro, De L. L., vi, 29 ff. A secretary's indiscretion, in 450, put
the public in possession of most of the pontifical secret formulas.

ORDERS BEGINS 103

had neither sympathy with the non-privileged classes
nor power to protect them.

Most serious of all, in a community largely de-
pendent upon husbandry and cattle farming, was the
agrarian question, which thenceforward preoccupied
successive generations of politicians and, unsolved,
finally wrought ruin to the Commonwealth. The
land of the small freeholders was becoming exhausted
through intensive cultivation,1 and barely sufficed
for their needs. Yet the situation was aggravated
by the gradual monopolization of the common
grazing lands and other State domains, which ple-
beians had helped to conquer, and the enjoyment
of which they had formerly shared, by patrician and a
few wealthy plebeian families. These lands remained,
indeed, State property, but although the favoured
occupants were nominally bound to pay rent, their
friends and relatives in office were studiously careless
in collecting it. The loss of public revenue may not
have been serious ; but the abuse, by contracting the
scope of subsistence of the poorer classes, accelerated
the impoverishment of a peasantry already threatened
by frequent and not always fortunate wars.

The cup was made to overflow by the immodera-
tion with which many plutocrats exploited their
position. The creditor upheld his rights with a
rigour all the more hateful because the legal process
which enforced them was administered by patrician
judges, and regulated by secret forms removed from
1 Ferrero, Greatness and Decline of R., i, 4.

io4 THE STRUGGLE OF THE

the scrutiny of the defendant. Defaulting debtors
(whether by misfortune or other cause) became,
either under the original contract (nexum), or by
judicial award (addictio), the bondmen of their
creditors; and the insolence of wealth too frequently
vented itself in private imprisonment and personal
outrage. So long as a nexus abode in Rome he
could not indeed be deprived of his citizen rights;
but it was in his creditor's power, subject to certain
restrictions, to sell him as a slave beyond Tiber.

The chief remedy for which the poorer plebeians
clamoured was a juster participation in the enjoy-
ment of the lands at the Government's disposal ;
but this the patricians persistently evaded, and the
plebs, whose wealthier members were themselves
interested in the continuance of the abuses, were not
strong enough to enforce. From time to time, when
the political co-operation of the plebs was urgently
required, or when discontent approached the point
of open revolt, the Senate decreed heroic palliatives,
as an extinction of existing debts and the liberation
of bondmen debtors. Such measures of course only
afforded temporary relief, leaving the root evil un-
touched, and, by the action of economic laws (which
hold good at all times and everywhere), in the end
added to the depression of the debtor classes.

About the year of the City 260 (493 B.C.) plebeian
soldiers, returning from a successful campaign to their
poverty, and many to their prisons, and finding the
Senate again obdurate to their demands, marched

ORDERS BEGINS 105

under their plebeian officers to a hill between the
Tiber and the Anio, with the real or professed inten-
tion of founding a new city. The accomplishment of
the project, which might have given a widely different
course to European history, was frustrated by prompt
surrender of the governing classes. The two parties
agreed upon a compromise, in which, inasmuch as
the old abuses were not materially checked, nor the
law of debt modified, the advantage must be said to
have lain chiefly on the side of the more business-
like patricians. Nevertheless the compact was
hailed by the plebs as a great political victory; the
law ratifying it was called the Sacred Law,1 the place
temporarily occupied by the seceders the Sacred
Mount. Provision was made by this legislation for
the settlement of the poorest families upon public
lands; debts were remitted, imprisoned debtors
liberated, and immunity was secured to the seceders
for their sedition and desertion under arms. The
only permanent reform was an important political
measure whereby the institution of Tribunes of the
People (tribuni plebis) was either inaugurated or
definitely recognized. The two2 Tribunes, with whom
were associated two ^diles with similar but inferior
powers, were only eligible by and from the plebs,

1 All solemn compacts between the orders resembled inter-
national treaties, and were called leges sacratae.

2 Mommsen, Staatsrecht, ii, 274. Their number was increased
to four or five in A.U.C. 283 and to ten in A.U.C. 297. The original
number was doubtlessly adopted in analogy with the Consuls.
Soltau, Volksversammlungen, 494.

106 THE STRUGGLE OF THE

and not having the auspicia were not, legally, State
officials. They had no faculty to initiate or control
legislation. Their political significance lay in their
power (jus auxilii, intercessio) to hamper the execu-
tive, by forbidding any particular administrative act
about to be performed by a State officer. This power
was only exercisable within the City walls; in the
field it would have been obviously subversive of all
discipline. It was preventive only. At a word from
the Tribune, the unwilling recruit, so long as he
remained within the City, escaped punishment for
his desertion, proceedings against the debtor or
criminal were suspended, and the public officer was
rendered powerless to discharge his duties; but the
intercession must take place before the realization of
the act objected to, and at the request of the person
against whom it was directed. For this reason a
Tribune was required during his term of office never
to pass a night without the City, and never to close
the door of his house. The person of every Tribune
and ^dile was declared inviolable.1 Capital punish-
ment was threatened to any citizen offering him vio-
lence or resistance, and all officers of State were
included in the ban, contrary to the hitherto recog-
nized maxim that no magistrate, so long as he re-

1 Contact with a Tribune's or ^Edile's person may have been
unlawful because he was an object either of special reverence as
the creation of a sacred law, or of peculiar abhorrence as a monster,
whose quasi-magisterial authority desecrated the sacra. Probably
each order held its own view and both sensibly agreed to differ.

ORDERS BEGINS 107

mained in office, could lawfully be called to account
for his acts.

We are compelled to believe that the power
exercised by the Tribune developed very gradually
to the proportions we find it to have assumed later.
Originally, no doubt, his privilege was merely to
succour an individual plebeian in danger of oppres-
sion by a magistrate. This jus auxilii was necessarily
exercised by the Tribune on the instant, without
pausing to weigh the merits of the case, since he had
no power to remedy the alleged oppressive act once
performed. Even the concession of so much shows
the desperate straits in which the patricians and
wealthy plebeians found themselves as a result of
the threatened secession. The development of the
jus intercedendi, and the monstrous power of inter-
ference with thejprocedure of Legislature and Senate,
cannot possibly have been contemplated by the
governing classes at the outset.1

The plebs now emerged as a disciplined political
organization. Conventions (concilia plebis) were
habitually convoked by the Tribunes (under the
lex Icilia of 262) 2 to discuss affairs relating to
their order. Their resolutions (plebi scita) had
not yet indeed the force of law, for the Constitu-
tion, in theory at least, still refused legislative func-
tions to bodies not comprising the whole of the

1 Cf. Soltau, Volksversammlungen, 522 ff.

2 Another measure of the same name, in 298, appropriated the
unoccupied land on the Aventine for artizans' dwellings.

io8 THE STRUGGLE OF THE

citizens,1 but undoubtedly the plebeians treated their
own decrees as binding upon themselves, and they
soon, under the guidance of their Tribunes, assumed
an informal criminal jurisdiction over all citizens
without distinction, where offences against their own
order were in question, as, among others, Cnaeus
Marcius (Coriolanus) found to his cost.2

At first the plebeians voted curiatim in their
concilia; that is, they assembled at the summons of
their Tribunes in the same order as if the comitia
curiata had been convoked by the Magistrate, the
essential difference being of course the absence of
patrician citizens. But such an assembly would still
include clients and freedmen, whose traditional at-
tachment to their patrons was distasteful to the more
radical party. In 283 a measure, carried at the in-
stance of the Tribune, Publilius Volero, inaugurated
the system of voting by tribes, which confined the
suffrage to landowners, and political preponderance

1 "Es giebt nach romischen Staatsrecht keine Gemeindever-
sammlung ohne wenigstens theoretisch allgemeines Stimmrecht."
Mommsen's Romische Forschungen, chapter on Die Patricisch-
plebejischen Comitien, at p. 154. (The centuries did not at first
include non-freeholders, cf. p. 87 suflra, p. 138 infra.) Mommsen
characterizes the usurpation by the plebs of a criminal quasi-juris-
diction as " Lynch-justiz " (Forschungen, i, 179), which, however,
political necessity excused.

2 That famous prosecution, however, certainly took place later
than the date (263) assigned to it by Livy, ii, 35. Mommsen,
Romische Forschungen, ii, Die Erzahlung von Cnaeus Marcius
Coriolanus.

ORDERS BEGINS 109

to the independent plebeian peasantry.1 At the same
time the Senate confirmed the legality of the con-
cilia plebis, and the Tribunes' right to propose and
carry resolutions in them (jus agendi cum plebe).2

1 Momm'sen, Staatsrechtj iii, 152.

2 Prior to 283 u.c. it is possible that tribunes may only have
been appointed by co-optation. Soltau, Volksversammlungen,
502 ff.

CHAPTER VIII

THE DECEMVIRATE AND THE DAWN OF WRITTEN LAW l

/^CONCEIVABLY the simple plebeian peasant-
\*^s soldiery, whose secession to the Sacred Mount
threw the Government into such consternation, may
themselves have felt considerably embarrassed to
formulate their desiderations to the best advantage.
The evils from which they suffered demanded (in
the order of their importance) firstly, administrative
reform (regarding the State lands) ; secondly, reform
of the law of debt; thirdly, constitutional reform.
Neither the first nor the second object was perma-
nently achieved. The Constitution indeed, though
it remained in theory unchanged, had in practice
been subverted by the formation of a new State
within the State, the introduction of a co-ordinate
system of plebeian governance with an underlying
tendency to tyranny and the avowed purpose of
hampering the regular authorities. But whatever

1 " Written law " is, of course, not here used as the equivalent of
statute law. The commands of the old comitia curiata, and after-
wards of the Centuries, in substance no doubt represented activity
which would now be left to the Executive, but were certainly
statutes.

no

DECEMVIRATE AND WRITTEN LAW in

satisfaction plebeians derived from obstructing- the
executive and prosecuting persons in high places,
they soon realized that so long as the principles upon
which the law was administered remained a sealed
book to them, so long would they continue, notwith-
standing their organization, in hopeless inferiority
to their patrician adversaries.

Whereas custom which rests upon religion is in
its essence all but immutable, the wisdom of secular
institutions is uniformly subject to challenge and
review, and among a litigious people the science of
jurisprudence emerges whenever reverence or super-
stition has ceased to stifle criticism. More than the
correction of definite political abuses, therefore, the
preoccupation of the plebs was now to laicize the
law to the extent of bringing it within the intellectual
ambit of the meanest citizen. To this end political
agitation now became directed.

O

Weary of constant obstruction, and dreading the
further undermining of fundamental institutions,
the patricians, after eight years of stubborn resistance,
in 300 urbis, purchased the abolition of the hated
Tribunate by the promise of a written and pub-
lished Code. A mission was dispatched to the
Grecian colonies of Italy with the object of studying
Hellenic institutions. Two years later, upon the
return of the mission, the comitia centuriata, by a
remarkable enactment, temporarily transferred the
whole of the executive power to a college of ten
persons (decem viri consulari imperio legibus scri-

ii2 THE DECEMVIRATE AND THE

bundis) who were to prepare and publish the Code.
That plebeians were declared eligible for the Decem-
virate indicates the wane of ancient traditional in-
fluences, which however were, in the first instance,
still sufficiently powerful to secure the selection of
all the decemvirs from the patriciate. In 303, a Code
of Ten Tables had been elaborated, which, engraved
upon wood, were displayed in the Forum. Supple-
mentary provisions being then found desirable, a
new Decemvirate was appointed in 304, this time
comprising members (according to Niebuhr in equal
number) of both orders, and two new Tables were
added.

Unfortunately, only fragments industriously
gleaned from later writers remain to us of the
XII Tables. So much is clear, that they did not
profess to be a complete statement of the law,
and dealt only incidentally with fundamental in-
stitutions which, like patria potestas and patron-
age, were ingrained in the social system, and called
neither for express confirmation nor detailed ex-
position. The XII Tables were, in general, de-
claratory rather than remedial ; where remedial they
restrained more than enlarged ; and what innova-
tions there were seem to have been made in what
we should call the adjective, rather than the sub-
stantive law.

i. Procedure naturally occupies a prominent place
in all archaic legal systems where, in the absence of
an efficient police, the fiat of a court may be often

DAWN OF WRITTEN LAW 113

successfully defied, and a right is scarcely considered
in the abstract, as a thing apart from its actual en-
forceability. The XII Tables commence by regulat-
ing the various stages of an action at law with a
minuteness strangely in contrast with the later de-
tached references to the most important branches
of substantive law. Special attention is directed to
hampering the process of the recovery of debts, and
the judgment creditor seeking to enforce his right is
hedged around with conditions, restrictions, and
delays. But when these had been observed, the law
took its course, and bondage at home or slavery
abroad awaited, as hitherto, the debtor who, after all
the statutory respites, could neither himself discharge
his obligation nor find a sympathiser to do so. It is
even said to have been declared law or enacted by
the XII Tables, that an unsatisfied judgment creditor
might kill his defaulting debtor. Although supported
by weighty authority,1 we cannot think this inter-
pretation correct. At some very early epoch, indeed,
death may have been the lot of a defaulting promissor,
for inasmuch as every solemn bargain was originally
held to be witnessed by the gods, its breach would
be an affront to the latter, and might be thought to
demand the sacrifice of the delinquent. Between
nations recognizing no common gods, treaties were,
for this reason, strictly speaking, impossible. The
international practice (which I have already men-

1 See Ortolan, Instituts, i, 106, 126. Also Mommsen, Romische
Geschichte, i, 152. Contra, Muirhead, Roman Law, sect. 36.

I

ii4 THE DECEMVIRATE AND THE

tioned) of surrendering to the disappointed State
the author of a repudiated treaty probably also had
a religious origin. But what we know of the nexum,
as entered into between private parties at Rome,
certainly suggests no specially sacred character, and
the secularization, which was the life-blood of the
decemviral Code, would not countenance under
colour of religion a judicial award which amounted
to a death decree. There is no reason to suppose
that the nexus or addictus lost his patria potestas,
his capacity to make a will, or any other of his citizen
rights. His creditor, although enabled to detain
and turn his person to profit, had no dominion
over him, as over a child, slave, or noxally surren-
dered tortfeasor. The debtor's status, therefore, re-
mained a part of the public law of Rome. Putting
him to death was contrary to public policy as well as
against the good order of the City, and cannot have
been lawful in the then state of the community.
The passage imputed to the XII Tables, so far
as it is held to establish the creditor's power of life
and death, becomes entirely discredited by the
grotesque atrocity of the alleged provision immedi-
ately following. The law bore heavily indeed upon
the defaulting debtor, but the meaningless brutality
of a direction to partition his corpse among his
unsatisfied creditors, if several, is alien to the spirit of
Roman law, and irreconcilable with Roman common
sense. Nor could we account for the presence ot
such a provision in a Code so obviously inspired by

DAWN OF WRITTEN LAW 115

a very general desire to advantage the humbler
population.1

Without, I think, unduly straining what we are
told of the text of the Code, we may assume the
judgment debtor's position to have been substantially
as follows : He either paid with his head (i.e., person,
capite poenas dabat), that is he became a quasi-slave
of his creditor until he had worked off his debt, or he
could be sold as a true slave trans Tiberim. In neither
event could his property (if any) be attached. His
familia was in any case inalienable, and at that time
no means existed of sequestrating his pecunia.2 If he
died in bondage, however, his debt, so far as it was
still undischarged, would devolve, with his assets, upon
his heirs. Selling him into slavery created a different
situation. His debt was cancelled by the capitis
deminutio maxima, and the creditor could pursue
the claim no further. But neither could any one, as
the law then apparently stood, inherit of him either
ex testamento or ab intestate. Therefore, as the
State did not yet succeed to persons dying heirless,
his property was, strictly speaking, res nullius and
might be seized by the first comer. But even if
those who would have been sui heredes could have
been legally deprived of the familia, the religious
sanctity of the house and land pertaining to it pre-
cluded any violent entry by a stranger, and the

1 The Tables attempted (of course, unsuccessfully) to limit the
rate of interest to ten per cent, per annum.

2 As to familia and pecunia, see pp. 206 and 260 ff.

n6 THE DECEMVIRATE AND THE

small pecunia would be promptly appropriated by
next of kin. The creditor's claim, so far as it re-
mained unsatisfied, was thus defeated, and it is there-
fore highly probable that an insolvent debtor was
scarcely ever sold as a slave, except when the pur-
chase price covered the whole of the debt, or a
plurality of judgment creditors complicated the pro-
cess of recovering through the debtor's personal
services. Where there were several creditors, prob-
ably selling into slavery was the only practicable
course; and the words: partis secanto ... si plus
minusve secuerunt ne fraude esto, may refer to the
case where several creditors, or several co-heirs of
a deceased creditor, had proved their claims.1

2. The institution of the Agnatic Family was one
of the cardinal principles of religion as professed by
the Romans of the age. The power of the pater-
familias over descendants was now incorporated in
the avowedly human-made law, with the proviso
that it should cease over a son who had been thrice
sold by his father. Similarly, although a simple
device enabled the wife to defeat the husband's
acquisition of manus over her by prescription, the
principle of male control was affirmed alike over
maid, wife, and widow. While the ancestor lived,
the unmarried daughter, and the married daughter

1 The subject is dealt with by Muirhead, Roman Law, ss. 31,
36, and more fully by Kleineidam (Personalexecution der XII
Tafeln, notably p. 224 ff.) and Bachofen (das Nexum), though
some of the conclusions differ from those above.

DAWN OF WRITTEN LAW 117

not in manu, remained under his power. Upon his
death they became subject to the tutelage of the
nearest agnate, as did also the widow who had been
in manu of her husband or his ancestor. Only vestals
were freed, in honorem sacerdotii, alike from the
father's power and the tutor's control.1

3. The decemviral legislators, far from legalizing
the probably increasing practice of intermarriage be-
tween patricians and plebeians, expressly denied the
jus connubii between the two orders. So reactionary
a measure in an otherwise democratic Code must
have been indicated by strong reasons. Probably
the legists (who included plebeians, for this particular
provision was the work of the later decemvirs) fore-
saw that wedlock generally must tend to lose its
character of permanency in proportion as the looser
plebeian notions invaded the patrician circles which
set the fashion to Latium. If these misgivings were
really entertained they were only too well justified,
as we shall see later.

4. The law of intestate succession was clearly
established for patricians, clients, and plebeians ; and
every citizen was declared entitled to dispose of his
property by testamentary disposition, though not
yet, apparently, at his absolute discretion.

5. A further stage in the dissolution of the gens
is indicated by the insertion in a civil Code of the
religious sanction which protected a client from his
patron's oppression, and by assigning to the next of

1 Gaius, i, 145.

u8 THE DECEMVIRATE AND THE

kin functions theretofore exercisable by the gens
under its separate jurisdiction, such as the curator-
ship over lunatics and spendthrifts.

6. The XII Tables also dealt with the law of
contract, torts (including theft), property, and crime,
by provisions with which we are not here directly
concerned.

7. Some provisions, such as those regarding funeral
customs, the destruction of deformed or monstrous
offspring (portenta, monstra),1 and punishments allo-
cated to certain offences savour unmistakably of the
sacral law, and represent further encroachments of Jus
upon Fas, or the blending of the latter with the former.

8. With the following important exceptions, the
Code dealt on the whole but slightly with constitu-
tional questions and public law generally. The
criminal offender, being deemed an enemy of the
gods, and consequently of the State, fell to be judged
by those whose duty it was to fight the State's battles,
and capital punishment,2 which the concilia plebis
had theretofore presumed to inflict, was declared to be
the exclusive prerogative of the comitia centuriata.
The provocatio was confirmed. To the conquered
populations3 the Tables brought, or confirmed, at

1 Voigt, XII Tafeln, i, 250 ff.

2 That is to say, any punishment depriving a citizen of life,
liberty, or citizenship. Until late Republican times a citizen,
whose life was forfeit, was usually allowed to evade the extreme
penalty by voluntary exile, which was equivalent to civil death.

3 Called Forctes and Sanates (Festus, s. v. Sanates). The
former were those " firm " and upright communities who had not

DAWN OF WRITTEN LAW 119

least elementary civic rights by the grant of the
commercium, that is, the right to use Roman forms
of contract and conveyance, and (probably) Roman
actions to enforce them. To the plebeians generally
they promised freedom of association (sodalitas),
whilst sternly repressing seditious combinations ; and
the death penalty awaited alike the traitor to his
countrymen, the corrupt judge, and the false witness.

The great achievement of the XII Tables, was
to have laid down a set of rules knowable to every
man and binding upon the Magistrates. The divorce
of Religion, with its unknown and uncertain applica-
tion, from Law was complete, at least so far as con-
cerned that law with which the plain citizen was
brought into everyday contact. The value of such
a concession was enormous, and it was not at the
moment considered too dearly purchased by the
abolition of the Tribunate, and of the criminal juris-
diction which the plebeian concilia had usurped.

Internal commotion was not, however, at once
appeased by the promulgation of the XII Tables.
By surrendering the Tribunate, the plebs had thrown
down a bulwark of tremendous resisting power, in
exchange for paper (or rather, wooden) guarantees, of
which the value had yet to be worked out in practice.

revolted against their conquerors; the latter were subject peoples
who, having thrown off their allegiance in a fit of temporary de-
rangement, had returned to sanity and obedience, and were now
placed on the same footing as the faithful. The nomenclature
proves that Roman patriotism was capable of the same naive
egoism which foreigners affect to find in Englishmen.

120 THE DECEMVIRATE AND THE

On the other hand, the patricians had assisted to
transfer all the power of the State into the hands
of a small patricio-plebeian junta, without providing
constitutional means to dislodge and dissolve it when
the scope of its usefulness was exhausted. The De-
cemvirs, apprehending the strength of their posi-
tion, seemed determined by subterfuge and excuse
to indefinitely delay the surrender of the power with
which they had been invested. Such procrastination,
if persisted in, would have tended ultimately to
establish some prescriptive rights exceedingly dan-
gerous to public liberty, and a fresh political deadlock
now arose.

Obscurity shrouds the events leading up to the
revolution which swept away the Decemvirate,1 but
the revolt would seem to have proceeded more
naturally from the patriciate than from the plebs,
who temporarily enjoyed, through their comrades
among the Decemvirs, a share of magisterial power,
the retention of which, on the resumption of the
regular consulate, traditions of centuries would be
invoked to defeat. Be this as it may, the abortive
attempt to perpetuate decemviral rule synchronizes
with a renewal of the dissensions, culminating in a

1 Revolutions may arise from small occasions but not from
small causes ; and we cannot place reliance in the Virginian legend,
which, like the Lucretian, ascribes a general political upheaval to
a single outrage. These stories are, however, of value as illus-
trating the esteem in which the early Romans held female honour.
It is regrettable that the most beautiful of Macaulay's Lays should
lack historical authentication.

DAWN OF WRITTEN LAW 121

second secession of the plebs to the Sacred Mount
(about 305), and the re-establishment of the con-
sular dispensation (L. Valerius and M. Horatius
being nominated Consuls by an interrex) with some
modifications, nearly all favourable to the people,
by the legislation known as the leges Valeriae
Horatiae. The substance of these measures ap-
pears to have been as follows :

1. The Decemvirate was abolished and the former
Constitution restored.

2. The right of the plebs to elect Tribunes was
revived and solemnly guaranteed. In addition to
their former powers, Tribunes were now entitled to
watch from the door the senatorial debates and pre-
vent by their intercessio the passing of any obnoxious
resolution.1 The presence of the Tribunes ensured
that senatusconsulta were correctly promulgated
and duly acted upon. Similar power to impede the
passing of measures in the Centuries and Tribes
(I shall deal with the latter assembly presently)
had either already been usurped by, or were now
extended to, the Tribunes.

3. It was enacted that ten plebeians, who, like
Tribunes and yEdiles, were declared inviolable as
to their persons, should arbitrate upon disputes
between parties of their own order upon remit from
a Tribune. Such a separate informal or quasi-
judicial system the plebs had probably already en-

1 I.e., Senatusconsultum ; the auctoritas to be given to laws by
the patrician Senate was removed from the Tribunes' cognizance.

122 THE DECEMVIRATE AND THE

*

joyed. As they operated without the mysterious
forms by which procedure was bound in the State
Courts, these tribunals no doubt at first commanded
the sympathies of plebeian litigants, though their
decrees must have been difficult to enforce against
an unwilling and shifty loser. The plebeian judges
of course claimed no jurisdiction when one of the
parties was a patrician, and with the fusing of the
two orders the separate plebeian judiciary seems to
have disappeared.

4. The usurped criminal jurisdiction of the ple-
beian concilia had been abolished by the XII
Tables, at least in capital cases. But the Tribunes
were enabled to bring capital accusations before the
comitia centuriata, and they could still, with the con-
currence of the Assembly of Tribes, fine any citizen
to his utter ruin. Thus any Tribune, though stand-
ing constitutionally outside the hierarchy of regular
State officials, divested of all constitutional respon-
sibility and deprived of the most modest share in
constructive government, was nevertheless furnished
with enormous powers to work mischief, the sole
check to which was the intercessio of his own
fellows. In a State where either Consul could at all
times veto any act of his colleague, where all State
officials were subjected to the veto of any Tribune, the
Tribunes themselves could veto each other, and even
proceedings in the Senate were liable to similar con-
stant interruption, we might well marvel how gov-
ernment could have been carried on at all. That on

DAWN OF WRITTEN LAW 123

the whole the administration was nevertheless fairly
efficient, and the law not only carried out, but even
progressively developed, is due partly indeed to the
comparative simplicity of public affairs in those early
times, but, above all, to common sense and modera-
tion, coupled with an ardent patriotism, ever main-
tained at the highest pitch by the pressure of sur-
rounding foreign enemies.

5. When face to face with the foe the Romans
never hesitated to suspend constitutional safeguards,
and in the field the Dictator retained undisputed
sway over the citizens under arms. His orders no
Tribune can stay. From his death sentence, and his
alone, there is no appeal;1 under all other circum-
stances the citizen capitally condemned has the pri-
vilege of the provocatio.

6. Most important of all was the provision that
plebiscita, which by virtue of the lex Publilia (283
urbis) were already binding upon the whole body
of citizens without any reservation, where they
concerned individual plebeians or the internal ad-
ministration of the plebs only, should, even if they
impinged upon the province of the regular legislature,
nevertheless have the force of law, provided they
had been approved by senatusconsultum 2 before

1 This has been doubted, see Ihne, Rom. Verfassungsgeschichte,
65 n.

- A senatusconsultum or resolution of the whole (patricio-
plebeian) Senate, differed entirely from the auctoritas, which was
given on the passing of a lex by the comitia, as a guarantee that
the measure was not contrary to the fas, and accordingly could be

i24 THE DECEMVIRATE AND THE

the concilium plebis had actually voted upon them.
In the then state of party feeling the restriction
might have rendered the enactment nugatory but
for the growing force of public opinion and the
moderating influence of many patricians. Measures
demanded by the unanimous voice of the Commons
could usually no longer be safely rejected by the
Senate, which henceforward sought rather to evade
by dilatoriness and distractions whatever it dared
not expressly disallow. This provision of the leges
Valeriae Horatiae, therefore, effected an important
devolution of powers from the comitia centuriata to
the concilium plebis, as when a modern legislature
confers upon an inferior body authority to frame
by-laws, with the limitation that such by-laws, so
far as they concern the general public, shall be sub-
mitted to, and approved beforehand by, a Govern-
ment department.

The promulgation of a written code of law, the
resuscitation of the tribunate with increased powers,
and the recognition of the plebeian concilia had now
secured for the commonalty a formidable position in
the State. The " trimmers " of the plebs, the scions
of the plebeian plutocracy, whose inclinations had
hitherto leaned towards the patriciate, now threw

pronounced by the patrician Senators only. The larger body
decided upon purely temporal, the smaller (professedly) upon re-
ligious considerations, the sincerity of which the Commons would
have doubted when applied to plebiscita. For upwards of a century
and a half longer (until the lex Hortensia 467) the distinction
between lex and plebiscitum was carefully observed.

DAWN OF WRITTEN LAW 125

themselves into the popular movement, and adroitly
turned it to their own advantage. Already about
309 urbis their influence in Senate and forum wrung
from the reluctant patriciate their consent to the
famous plebiscitum of Caius Canuleius, which, by
establishing the jus connubii between the two orders,
repealed the one anti-popular measure of the XII
Tables. Henceforward marriage between a patrician
and a plebeian could be justum matrimonium; the
offspring was legitimatized, and the most invidious
of all class distinctions removed. We shall see later
how this measure profoundly modified the law of
husband and wife and influenced the whole of
society.

Affairs having come to this pass, it is matter for
wonderment that the governing classes did not, as a
preferable alternative to the unnatural and hybrid
position created for them, circumvent the religious
difficulties which still separated the orders by a
statutory enactment admitting plebeians en masse
into the patriciate. In regal times the admission of
gentes from outside into the Roman patriciate had
been not infrequent. A thoroughly broad-minded
policy would have similarly enrolled born citizens of
Rome the more readily as the plebs included men
who, notwithstanding all disadvantages, had risen
to affluence and eminence, men deemed worthy to
hold military commands, and even to sit in the
Senate. There are various explanations which, com-
bined, probably furnish the answer: The liability of

126 THE DECEMVIRATE AND THE

all freeholders to military service had stopped the
drain upon the blood of the patriciate, removing the
pressing necessity and the habit of new initiations.
Moreover, the position of a highly privileged minority
in a rising and powerful commonwealth had blunted
the ancient ideas of equality, and many patricians
who would not start at the notion of acknowledging
as equals strangers already holding patrician rank
abroad, might hesitate to exalt countrymen of their
own, whom constant intercourse had accustomed
them to treat as inferiors. And finally, there was
the technical difficulty that since the establishment
of the Republic, or very soon thereafter, there was
no body legally competent to legislate for the patri-
ciate alone,1 as the plebeian concilia, under the law
of 283 u.c., and possibly earlier, could legislate for
the plebs.

About or shortly after the period of the XII
Tables and the Valerio-Horatian legislation, dates
the rise of a new legislative body in Rome, the
comitia tributa.2 In imitation of the system adopted
since 283 in the plebeian concilia, the new body
consisted of freeholders only, with this difference,
that it included, whilst the plebeian assembly ex-
cluded, patricians. To it was at first referred the

1 Mommsen, Forschungen, i. Nichtexistenz patricischer Son-
derversammlungen in republikanischer Zeit.

2 Tribus = districts, or, as we might call them, " constituencies."
Their number was increased from time to time, and they had of
course lost all connection with the ancient tribal distinctions of
Ramnians, Titians, and Luceres.

DAWN OF WRITTEN LAW 127

election of (urban) Quaestors, hitherto nominated by
the Consuls, and of the military Quaestors, or officials,
created about this time, charged specially with the
administration of the war chest. In accordance with
the original design, the Tribal Assembly always bore
the outward marks of a subordinate legislative body
(comitia leviora), and although during the fourth
century of the City we find it gradually electing all the
minor magistrates, its legislative activity, properly
so called, and its limited criminal jurisdiction, do not
appear to have been habitually exercised until some
time after the institution, in 387, of the Praetor, who
convoked and presided over the Tribal Assemblies.1
No laws are extant creative of the comitia tributa
or defining their powers, but apparently their purely
legislative competency was limited by law or custom
to occasional general legislation on matters of private
law.2 It was a large step in the direction of enlight-
ened democracy. The system of voting in the tribes
was viritim,3 and it appealed to freeholders of moder-
ate fortune (whose influence, by the voting procedure
in the centuries, had been too frequently swamped
through the artificial preponderance of the wealthy),
whilst the exclusion of non-freeholders from the
tribes still kept at bay the riff-raff of the town, the

1 The oldest known lex tributa dates from 422; Mommsen,
Romische Forschungen, i, 160.

2 Muirhead, Roman Law, sec. 17.

3 That is, the freeholders of each district (tribus) voted equally,
and the vote of the majority was then the vote of the district. In
early Rome all voting was open.

128 THE DECEMVIRATE AND THE

enfranchised slaves and improvident proletariat.
Like those of the centuries, the tribal enactments
were leges, binding the whole people, subject to the
auctoritas of the patrician Senate.

NOTE TO CHAPTER VIII

The rise and progress of the comitia tributa and concilia plebis
have occasioned more controversy than any other of the Roman
institutions. Far from laying themselves open to the reproach,
sometimes addressed to writers on International Law, of " follow-
ing each other like sheep," it may almost be said of the modern
Romanists on this head, that tot homines quot sententiae. Most
of them defend their views with German thoroughness and Ger-
man disputatiousness, and he who has essayed to explore the
chaos of conflicting opinion may be pardoned if he find his task
more irksome than edifying. Regarding the gradual assumption
of legislative functions by the (patricio-plebeian) comitia tributa
and plebeian concilia respectively, and their relations inter se and
towards the State, I have ventured to prefer, on the whole, the
view elaborated by Soltau in his Gueltigkeit der Plebiscita, which,
though drawing somewhat upon the imagination to amplify, does
not go the length of arbitrarily altering the Livian text. We find
three separate enactments of the comitia centuriata, each using
almost identical language regarding plebiscita:

1. That introduced by the Consuls L. Valerius and M. Hora-
tius about 305 : ut quod tributim plebs jussisset, populum teneret.
(Livy, iii, 55, 67: Dionysius, xi, 8, gives a similar account.)

2. That introduced by Q. Publilius Philo, whilst Dictator in
415, of whom Livy says (viii, 12): "tres leges secundissimas
plebei, adversas nobilitati tulit : unam, ut plebiscita omnes Quirites
tenerent; alteram, ut legum, quae comitiis centuriatis ferrentur,
ante initium suffragium Patres auctores fierent: tertiam, ut alter
utique ex plebe, cum eb ventum sit ut utrumque plebeium con-
sulem fieri liceret, censor crearetur."

DAWN OF WRITTEN LAW 129

3. The lex Hortensia de plebiscitis in 467 to the effect, ut quod
plebs jussisset omnes Quirites teneret. (Livy, xi, 26; Pliny,
N. H., xvi, 15.)

Mommsen appeals to the dicta -of the Roman jurists on the
subject of the Hortensian law (Romische Forschungen, i, 200),
and points out (ibid., Die patricisch-plebejischen Comitien) the
absence of all trace of the rise and gradual growth of the (patricio-
plebeian) comitia tributa as a legislative body, unless the Valerian
and Publilian laws are referable thereto. Concluding that they are
so referable, he would have the Valerian enactment read : " ut quod
populus tributim jussisset populum teneret" (a most awkward
phrase), and considers the rendering of the Publilian measure to
have been mutilated (entstellt). It seems impossible to disregard
Soltau's misgivings (Giilt. d. Pleb., pp. 8, 113 ff.) at reconstruc-
tions of ancient texts by which their apparent meaning is vitally
changed without obvious necessity. Soltau plausibly explains the
non-existence of any special enactment creative of the patricio-
plebeian Tribal Assembly, by pointing (pp. 82 ff., 114 ff.) to the
probably accidental origin of that body, which, the precedent
once established for the elections of minor magistrates, it was
afterwards found convenient and (from a popular point of view)
advantageous to suffer to develop into a subordinate legislative
assembly (comitia leviora). Its enactments in all matters within
its limited competency were leges, like those of the centuriae, and
therefore distinct from plebiscita (Romische Forschungen, i, 155).
The effect of these several statutes, so far as they refer to the
validity of plebiscita, appears to have been as follows: By the
leges Valeriae-Horatiae a plebiscitum, which (by virtue of the lex
Publilia Voleronis, 283) already bound the plebs, but not the
patriciate where the rights of the latter body would have been
affected, was now made generally binding upon the whole Com-
monwealth, provided the bill (rogatio) had been sanctioned by
senatus-consult before the concilium voted upon it. But as there
were no means of forcing the Senate to declare itself for or against
any rogatio, popular demands could be and frequently were evaded
for years by procrastination, and probably the lex Publilia Philonis
of 415 (not to be confounded with the earlier lex Publilia) sought
to supply legal machinery for forcing the Senate to show its hand

K

130 DECEMVIRATE AND WRITTEN LAW

(Soltau, Giilt. d. Pleb., 148 ff.). At the same time it required that
the patrum auctoritas, which the Senate had theretofore been
accustomed to confer upon each lex after it had passed the
comitia curiata, centuriata, or tributa (as to the last, Soltau contra],
should be pronounced, or declared to be withheld, beforehand.
A later lex Maenia applied the same provision to the elections of
magistrates. But the ingenuity of the Senate still contrived to
evade the law (Livy, xi, 26), and after a third secession of the
plebs (this time to the Janiculum) the lex Hortensia at last placed
plebiscita upon the same footing as leges (Aul. Gellius, N. A., xv,
27; Gaius, i, 3; Just., Inst, i, 2, 4). The consequence was that a
senatus-consult, which had never been necessary to validate a lex,
was now equally unnecessary to validate a plebiscitum; and
consequently we find the plebeian scita, after 467, correctly called
leges. As, moreover, the patrum auctoritas had sunk to a mere
formality through the operation of the statute of 415, nothing
seemed now to stand between the popular Assemblies and supreme
power. We shall see that, in reality, the result was far different.

CHAPTER IX

FURTHER CONSTITUTIONAL DEVELOPMENTS TO THE
BEGINNING OF THE PUNIC WARS

DOMESTIC affairs during the first centuries
of the Republic pivot upon an incessant three-
cornered struggle. We find the patriciate, formerly
omnipotent in the nation, nay, the nation itself,
gradually pressed back from its vantage-ground by
sheer weight of numbers ; and unlike the English,
the Roman plebs is enabled to maintain with scarcely
any vicissitudes a continuous though deliberate pro-
gress in one direction. The masses, mainly swayed
by economic preoccupations, clamour for land, and
" novas tabulas," which mean partial repudiation of
their debts. The "nobility" of the plebs, like our
early Whigs, combine with jealousy for the rights of
property, and too great tolerance of jobbery, a robust
patriotism and sound though narrow political intelli-
gence. Those marked out by birth, wealth, or talent
for the leadership of the plebs, boldly aspire to the
reins of government, though in so doing they must
ride rough-shod over time-honoured considerations
of State and gentile religion. They would have
derided the modesty or caution of the mediaeval

132 DEVELOPMENTS TO BEGINNING

English Commons who deprecated advising upon
questions of State policy,1 as they would have con-
temned the poor spirit of the sleek bourgeois in
Faust, who was not ashamed to say :

Dankt Gott mit jedem Morgan

Dass ihr nicht braucht fur's Rom'sche Reich zu sorgen,
Ich halt' es wenigstens fur reichlichen Gewinn,
Dass ich nicht Kaiser oder Kanzler bin.

But as the domestic cult belonged exclusively to
the family, so, in the estimation of the patriciate, the
cult of the City belonged exclusively to those families
who had originally founded it. A magistrate who
neglected the sacred rites prescribed by ancient
form was unthinkable. Yet their performance by a
plebeian was accounted impious, and amid the wreck
of prerogative the patriciate still preserved its ex-
clusive privilege of magisterial office. Against this
palladium of the superior order ambitious plebeians
now levelled attacks which for many years convulsed
the Commonwealth. Most of the patricians pro-
fessed, sincerely or otherwise, to defend the State's
sacred institutions, whilst their opponents claimed
that personal merit must not be eclipsed by anti-
quated questions of form, and that, rightly con-
sidered, every part of the public cult was the birth-
right of the Roman citizen.

It seemed at first impossible that common ground
could ever be reached, and the consulate remained
patrician for further eighty years after the Valerio-

1 Hallam, Europe during the Middle Ages, p. 486.

133

Horatian Reform. As a kind of compromise, the
annual practice of electing Consuls was occasionally
departed from, and a number of war tribunes,1 who
might be patricians or plebeians, with consular
powers, were now annually chosen by the comitia
centuriata,on the plausible pretence that two generals
were insufficient to direct military operations simul-
taneously in several theatres of war.

The uniform successes of the popular party should
have demonstrated to the patriciate their powerless-
ness when confronted by the united forces of the
plebs, yet they persisted by manifold devices in
fighting a losing battle. Foreseeing the inevitable
conquest of the consulate by the Commons, they
contrived betimes to temporarily snatch an important
part of its power by creating the censorship2 (312
urbis), to which were transferred the administration
of the Exchequer, and the right and duty of period-
ically revising the lists of senators and citizens.
Compensation was found by the plebs when, in
333, the comitia tributa successfully insisted upon
the admissibility of plebeians to the quaestorship.

But the desiderated reforms were economic as
well as political. The wealthy plebeians, indeed,
though they aspired to complete equality with patri-

1 The number might vary as circumstances required, Livy, iv,
1 6. The tribuni militum consulari potestate must not be confused
with the older military tribunes, who were mere army officers, and
not magisterial officials.

2 The censors' term of office was originally five years, afterwards
reduced to eighteen months. Livy, iv, 24.

i34 DEVELOPMENTS TO BEGINNING

cians, had no incentive, beyond the public spirit and
probity of the more enlightened among them, to re-
form administrative abuses which redounded to their
own increasing advantage. To the poorer classes of
the plebs, on the other hand, the right of lawful in-
termarriage with the patriciate, or eligibility for high
office of State, seemed of small import when measured
with the demand for juster distribution of public
lands and mitigation of the debtor's burden.

The two currents clearly appear in the legislation
of the period, and particularly in the Licinian Roga-
tions, which, after years of obstinate opposition, the
united plebeian order ultimately (387 urbis) imposed
as laws upon the patriciate. They were: (i) Dis-
continuance of the consulary tribunate; (2) Resump-
tion of the consular regimen with the proviso that
henceforward at least one Consul should always be
a plebeian; (3) Admission of plebeians to the priestly
college having charge of the Sibylline books, the
number of members being increased from two to ten
(decemviri sacris faciundis), a demand probably
prompted by suspicion of the sincerity of patrician
priests; (4) Prohibition that any single citizen should
graze more than 100 head of cattle and 500 sheep
upon the State domains, or possess more than 500
jugera (about 330 English acres) of land; (5) Ob-
ligation upon landholders to employ a minimum
number of free labourers proportioned to the num-
ber of slaves; and (6) Relief to debtors by deduct-
ing from the unpaid principal of outstanding debts

OF THE PUNIC WARS 135

all interest theretofore paid, and by extending the time
for repayment of the balance. Even now the law it-
self, as between creditor and debtor, was not changed.
It was many years later (in 428 or 462) that the lex
Poetilia effected the release of all nexi, and, though
not abolishing nexal contract as between creditor
and debtor altogether, deprived it of most of its
advantages from the former's point of view, whilst
modifying in favour of the latter the process of law
whereby he could become addictus.1

Already in 312 the patriciate had sought to break
the fall by detaching censorial from consular powers.
With the like end in view, and with equal inefficacy,
the judicial functions of the Consul now (387) became
attributed to the praetorship, and curule2 -^Ediles were
created to discharge the duties of police and muni-
cipal administration over the heads of their plebeian
namesakes. From both these offices commoners
were disqualified for a time — but only for a time —
on religious considerations of more or less cogency.
These and other manoeuvres prolonged, without
modifying, the issue of the long class-struggle, and
it is tedious, and, for present purposes, unnecessary
to follow in detail the events whereby every politic-

1 Muirhead, Roman Law, sect. 31. The cessio bonorum,
which discharged the debtor entirely on his surrendering the
whole of his estate to his creditors, was only introduced towards
the end of the Republic, or later.

2 Only the superior magistrates could sit in the sella curulis, or
chair of high office, which was originally emblematic of the kingly
power.

:36 DEVELOPMENTS TO BEGINNING

ally important office of State was in turn rendered
accessible to the masses.1

Futile to effect the purpose aimed at, the success-
ive segregations of special functions from the consular
office nevertheless bore important constitutional con-
sequences. Under the oldest Constitution the executive
power, or imperium, was undivided and indivisible ;
and the King who entrusted the discharge of part of
his duties to a deputy, could revoke his commission

1 Following are the chief magisterial and sacral offices of politi-
cal importance, in the order in which they successively became
opened to plebeian candidates:

OFFICES.

Military tribunes with

Consular power . . .

Quaestor . . . circa

Military quaestor . .

Magister equitum circa

Consul .... circa
Curule aedile .

Dictator . . . circa

Censor

Praetor

Augur

Pontifex

Pontifex maximus circa

Interrex

Flamines majores . .
Rex sacrorum

INSTITUTED IN
A.U.C. B.C.

3°9 445

252 501

(as a permanent office)

PLEBEIANS MADE
ELIGIBLE IN

A.U.C. B.C.

3°7
252

243
387

252
312
387

447

366

309
333

386

387
387

445
421

368
366
366

442
366

immemorial

243

< immemorial

(patricians and plebeians to
be elected in alternate years)

398 356

4°3 35 i
4i7 337

454 3°°

(first pleb. pontifex
maximus actually
elected in 502)

Never

M

* Doubtful, see Livy, ii, 18.

OF THE PUNIC WARS 137

at pleasure. Even under the earlier consulate this
indivisibility was clung to in theory, each Consul
being invested with the full imperium without any
attempted apportionment, although the appointment
of Quaestors suggested that the old rule now stood
less firmly. But the deliberate creation of offices
having separate competencies of their own, and rank-
ing co-ordinately with the consulship, entirely dis-
posed of the old idea of undivided imperium, and
by weakening the magistracy, further confirmed and
amplified the influence of the Senate, which laws
like the Publilian and Hortensian had been delib-
erately designed to undermine.

Under the regal and the earliest republican Con-
stitutions, the chief Magistrates had largely dominated
the people, whilst themselves subjected in an increas-
ing degree to the influence of the Senate. The course
of ages had transformed them to little more than
adjuncts of that body. The old notion of single, un-
divided mastery, had given place to a system of
officialism in which duties and responsibilities were
departmentally apportioned in a manner not unlike
the practice of modern nations. Although the prin-
cipal Magistrates were chosen by the people, they
remained for the most part amenable to the Senate,
which could always checkmate a refractory Consul
by the exercise of its power to appoint a Dictator.
The tribunate lost its former special significance
when the political conditions which prompted its
creation no longer existed; and the Tribunes, once

i38 DEVELOPMENTS TO BEGINNING

the champions of the radical party, and constitution-
ally outside the magistracy, gradually assumed the
character of ordinary State officials, being recruited
almost exclusively from the plebeian aristocracy.

The State still consisted, as from the beginning,
of the National Assembly, the Senate and the Magis-
tracy, but their relative positions and influence had
shifted considerably. The oldest national assembly,
the comitia curiata, had practically passed out of
public life as a law-giving body, and was represented
at its formal sittings by a handful of lictors. The
comitia centuriata exercised supreme criminal juris-
diction, elected the chief Magistrates, and still ful-
filled their most ancient function of sanctioning
declarations of war. Since, probably, the lex Hor-
tensia, they also voted upon treaties of peace and
alliance. Nearly all other legislative power was
nominally exercised either by the patricio-plebeian
comitia tributa or the plebeian concilium, the dis-
tinction between the two bodies being wellnigh
effaced owing to the reforms of the last two cen-
turies and the enormous numerical preponderance
of the lower order. Originally the assemblies had
excluded from membership citizens not holding land.
These latter, who had meanwhile been made liable
to military service, in course of time were, after
some hesitation, admitted to Centuries and Tribes,
in such manner as to diminish, without however
quite destroying, the ancient predominance of wealth
in the former, and of the responsible middle classes

OF THE PUNIC WARS 139

in the latter. Yet it is curious to observe how the
nominally supreme popular bodies defeated their
own object by striving for more authority than they
could wisely administer. The fickle and superficial
Commons too palpably required the corrective of
superior foresight and expert knowledge, and the
Senate, besides absorbing in great part the powers
of the magistracy, even succeeded, by the middle of
the fifth century, in increasing its former formidable
influence over the Legislature, despite all previous
efforts to reduce it. We have already alluded to the
complete failure of the Roman mind to evolve a
method of government by popularly elected repre-
sentatives. The system by which all Roman burghers
assembled, when duly summoned, to vote negatively
or affirmatively upon any project of law by the
Magistrate submitted, had worked well enough in a
territorially and numerically diminutive community
of primitive habits and with an archaic administra-
tion. The growing complexity of political life de-
manded intelligent interest, consistent attention, and
constant intercommunication, if private citizens were
to make their influence felt in the State. This was
only possible when storm and stress supplied the
driving-power. After its victorious struggles, the
popular party was content to enjoy the comparative
prosperity afforded by internal reforms and expan-
sion abroad. The extension of the Roman territory
alone sufficed to hinder political organization by per-
manently ensuring the absence of large numbers ot

140 DEVELOPMENTS TO BEGINNING

citizens from the comitia. It likewise relieved the
pressure of population and drew off the more rest-
less elements. Under these circumstances, and with
rules of procedure which placed the assembly nearly
at the mercy of an energetic presiding magistrate,
the comitia lost both the prestige and the ability
to deal satisfactorily with any but the simplest
questions, unless with the guidance of officials,
who were themselves virtually nominees of the
Senate, and in case of need could, by a Tribune's
intercessio or the discovery of an unfavourable
augury, defeat any proposed independent action
of the citizens.

The Senate was itself subjected to the influence
of the Censor, in whose discretion it lay, when pe-
riodically revising the lists of Senators and citizens,
to exclude unworthy and obnoxious persons. This
discretion, however, appears at the period which we
have now reached to have been exercised judicially,
and not independently of the Senate itself, and it
was further curtailed by the Ovinian law, which
enacted that no person having occupied at any time
the position of Consul, Praetor, or Curule -^Edile,
should be so excluded, unless for good reason as-
signed. Moreover, annulling the old rule that
patricians only might take part in the senatorial
debates, it was laid down that this right should now
belong, without distinction, to all higher ex-officials.
As the latter had been at one or other time elected
(at all events nominally) by the people, the Senate

OF THE PUNIC WARS 141

might not unjustly regard itself as a quasi-repre-
sentative body, which by reason of superior know-
ledge and matured experience was certainly more
fitted than the comitia for responsible rule. Not-
withstanding some corruption and nepotism, the
Senate of the fifth century stands out as one of the
most efficient governments the world had, or has,
seen. The fact that the more influential members
had themselves held high office, and might expect to
do so again, secured a fairly harmonious co-operation
with the acting magistrates, which ordinarily removed
complex questions of policy from the ken of a public
unable to appreciate their intricacies.

The legislation, of which the Licinian reforms are
the type, shows clearly the nature of the compromise
effected between the privileged patriciate, the rich
plebeians, and the masses. Social dignity and poli-
tically innocuous religious functions the patriciate
still affect to regard as their peculiar patrimony,
whilst sharing the substance and emoluments of office
with their plebeian rivals. The wealthy classes gener-
ally, to secure quiet enjoyment of their privileges,
consent to a certain amount of undisguised confisca-
tion, and to mitigate, though not entirely to remove,
the misuse of State property, by allowing to their
humbler fellow citizens a somewhat inadequate par-
ticipation.

Whilst approving the overthrow of an antiquated
system based upon decayed prejudices, it is idle to
deny that political contests, then as now, were seldom

142 DEVELOPMENTS TO BEGINNING

conducted with wholly clean weapons. Whether the
Licinian provision, ne quis amplius quam quingenta
agri jugera possideret, referred only to realty in
private ownership, or to State land as well, the ob-
ject of the restriction was to artificially depreciate
by compulsory sales the property of those who were
unfortunate enough to have invested capital in land
interests beyond the new statutory limit.1 Even less
defensible was the treatment meted out to creditors.
In this respect, not only the Licinian, but all the
popular legislation was frankly dishonest. The gen-
erous, but mischievous, tendency of ill-balanced
minds is to ignore the standpoint of the oppressor,
whilst extolling his victims as models of all the vir-
tues, and grave political errors have been committed
by assuming a capacity for just and efficient self-
government in backward communities, merely be-
cause they had been governed unjustly and ineffici-
ently by an autocracy. With the Roman capitalist,
hauteur frequently turned to insolence, and severity
to outrage; yet the so-called popular legislation,
whilst powerless to prevent either, actually en-
trenched his monopoly by depressing the middle
class; since men of moderate fortune dared not to

1 Ortolan, p. 181. One can scarcely refrain from sympathizing
with the words put by Livy (vi, 41) into the mouth of Appius
Claudius: "quia pecunias alienas, quia agros dono dant: tanta
dulcedo est ex alienis fortunis praedandi," referring to Sextius and
Licinius. But possideret might after all only apply to possessores
(precarious holders of State domains) not freeholders. Even so, it
was a great hardship to bonfrfide holders.

OF THE PUNIC WARS 143

engage in business with the knowledge that con-
tract and property were the football of politicians.
Failure to redeem a promise was considered dis-
graceful as between honourable men, and unde-
serving of sympathy. On the default of a debtor,
the first impulse would not be one of compassion,
and a creditor seeking to enforce his bond could only
proceed against the person of his debtor, who, if
fraudulently inclined, could not be compelled by any
process of law to surrender his property in satis-
faction;1 neither did execution involve any loss of
civic rights to the debtor, or bring his family within
the power of the creditor.2 The latter's remedy was
to obtain what he could by personal coercion, and,
in a hard age, duress would readily take the form
of physical mal-treatment. For the Legislature to
condone default, and declare that interest paid should
count as repayment of capital, was spoliation. To
prohibit interest altogether was folly. It is not
astonishing that the creditor's terms, and his con-
duct on their non-fulfilment, became harsher in
proportion to the risk he ran of seeing his rights
arbitrarily overridden for reasons of mere political
expediency. Finally, the popular movement, how-
ever justifiable in itself, was not conducted by its
leaders with that sincerity which inspires respect, even
where agreement is withheld. That it was largely

1 F. de Coulanges, Cite Antique, 75, writes in the same sense,
though apparently he is thinking of landed property only.

2 Livy, ii, 24.

144 DEVELOPMENTS TO BEGINNING

in the hands of well-to-do plebeian politicians, who
exploited the misery of the masses to further their
own political advancement, explains the obstinacy
with which the patriciate continued to hold aloof as
a privileged class long after the substance of privi-
lege had been destroyed.1 The author of the famous
Licinian Rogations was himself the first offender
against his own measure, for the dishonest evasion
of which he was heavily fined.2

The era of triangular class struggle practically
closed with the passing of the Licinian laws, and
it may be said that in the ensuing century Rome's
polity, though unsound at the base, for the time
approached nearer to the Republican ideal than any-
other community of classical or mediaeval times.
The age of elegant literature had scarcely dawned;
and that wonderful system of law which still sways
the legists of Continental Europe as yet awaited its
evolution under Praetorian Equity. But all the
essentials of a high civilization were present, if
some of its elegancies were lacking. It was a period
of solid, but not flamboyant, prosperity, a prosperity
which, albeit largely built upon the ruin of other
communities, yet tended to the ultimate good of
mankind. Old social barriers were removed, and

1 Mommsen is exceedingly severe upon the old aristocracy, but
one cannot help suspecting some of his strictures to have been
coloured for the benefit of his own Prussian Junker, a term he
constantly applies to the Roman patriciate.

2 Livy, vii, 16.

OF THE PUNIC WARS 145

the later class distinctions were as yet unobtrusive,
though present in embryo. The equestrian order
did not, until after the Punic Wars, emerge as a
separate, privileged ring of usurers, forestallers,
and tax-farmers. The families which swayed the
Commonwealth had not unlearned the lessons of
moderation, and the assertiveness of a superior class
is pardoned if equipoised by self-restraint. Although
we need not literally accept the accounts of Senators
leaving the plough to assume the command of armies,
and subsequently returning to it,1 still the Roman
gentry lived for the most part upon their estates as
simple country squires, who wisely refrained from
marking disparities of fortune by vulgar ostentation
of living. To battle they led forth troops of hardy
peasants, whose service in the field was now2 requited
by the State with money payments, strong in the
conviction of inner worth, fortified by the knowledge
of former triumphs, and their discipline as yet un-
spoilt by the lavishness of the war-god's favours.
Not the adventitious genius of individual leaders
but the disciplined valour of the people as a whole
successively overthrew Latin and Volsce, Tuscan
and Gaul, Samnite and Greek and Tarentine.3
Upon the nations of Italy, as upon a whetstone, the

1 Cf. Val. Max., iv, 4, 5.

2 Since the siege of Veii (captured 358 urbis) when for the first
time the Roman army kept the field for several years without
disbanding for the winter.

3 Cf. Bryce, Studies, i, 59.

L

146 DEVELOPMENTS TO BEGINNING

Romans sharpened not only their swords but their
wits. A wise diplomacy sought to perpetuate the
fruits of martial success by conferring upon van-
quished cities, and newly-established Roman Colo-
nies, a judiciously graduated scale of civic rights.
Above all, the unique juridical genius of the Romans
tended to fortify their dominion over peoples who
reluctantly admired the strength and symmetry of
the new dispensation. Only the prestige of acknow-
ledged moral superiority could have withstood the
terrible strain to which Hannibal was shortly to
subject the fidelity of the socii. It is significant that
when, towards the end of the Republic, the allied
and vassal nations revolted from Rome, they could
devise no political institutions which were not
slavishly copied from the conquerors.

Although earlier premonitory symptoms were not
wanting, the decadence of the old- Roman system
of politics and morals first gathered its momentum
in the reaction which succeeded the tremendous
tension of the first two Punic wars. If, at this turn-
ing-point, Roman ambition could have confined itself
within the limits of Europe, had Roman statesman-
ship at this stage exerted its peculiar virtues to con-
solidate its conquests rather than to extend them,
had Carthage l been left to work out its own destiny,
and the two leading civilizations — the European and
the Semitic — to develop on natural lines, the cor-
ruption of Western blood and culture could have
1 Cicero, De Rep., i, 48.

OF THE PUNIC WARS 147

been arrested, and a free, national Italy might have
found time to reclaim barbarian Europe before
yielding up the sceptre of empire. It was not to be.
The Punic wars displayed at its apogee the high
standard of citizenship which had erected Rome's
greatness. The Romans had owed their conquests
to their virtues; they were now to owe their vices
to their conquests. With the ensuing subjugation
of Africa and Greece and Egypt began freedom's
long drawn-out agony. Worse than the luxury which
the plunder of Empires supplied, worse even than
the strange depravities introduced from East and
South, was the destruction of mental balance in a
ruling coterie called suddenly to wield an all-wide
and irresponsible power at a moment when the old
morality was nearly dead, and the new as yet un-
born. Worst of all was the progressive demoraliza-
tion of a denationalized metropolitan populace, which
had forgotten how to work, think, or fight, and in the
end existed only to decide by its venal vote which
group of politicians, by maintaining it in pauperized
indolence, had purchased the privilege of exploiting
a subject world.

CHAPTER X

MARRIAGE

MARRIAGE (even if the term be restricted
to unions intended to be durable) is older
than any definite system of religion,1 and with the
most primitive, as with the most modern, of man-
kind, was probably a matter only of sentiment,
business, or convenience. Ancestor-worship placed
marriage upon a higher, or at least a different plane
when it taught that the repose and well-being of
the dead depended upon the ministrations of the
living, demanding the maintenance of the sacred
fire, and faithful performance of regular sacrifices,
by a never-ending line of legitimate descendants.
The old-Aryan conception of wedlock, as an incident
of the ancestral cult, was exclusively religious.
The ancestor-worshipper entered upon matrimony
in fulfilment of a sacred duty to raise up offspring
having both the right and the obligation to continue
the family. And this was the central idea which
coloured and pervaded the earlier Roman marriage-
practice.

Before the Italiot hordes had crystallized into

1 Cf. Westermarck, Human Marriage, 50.
148

MARRIAGE 149

cities and polities, the ceremonial constituting re-
cognized marriage would be the concern of the gens,
or at most, the two gentes, within which it took
place. Excepting unions by confarreatio, which we
shall specially consider later, marriage in Rome was
a private act, solemnized without any intervention of
the State, although the pontifical college had doubt-
less, in very early times, already laid down certain
ceremonies as the minimum necessary to establish
justae nuptiae l in Rome. In every case the essence
of legitimate union was the consent and approbation
of the gods, to obtaining and witnessing which
nearly the whole of the prescribed ceremonial was
directed. In this it must be taken that all Roman
citizens — patrician, client, and plebeian — stood alike.
It is unthinkable that such a community as archaic
Rome ever tolerated conditions under which irre-
gular unions were the sole sexual relations possible
to the majority. It is, to my mind, equally inad-
missible, having regard to what has been said in
former chapters, that any purely civil form of mar-
riage can have been recognized or widely practised
in the early days of the State. It was not until the
importance of the religious aspect had weakened in
the popular imagination before the encroachments

1 Originally nuptiae meant strictly the ceremonies attending
the formation of the marriage-tie; matrimonium, the tie itself.
The latter expression was at first employed to denote unions not
religiously consecrated (or at least which did not rely for their
validity upon ritual), which stricter patricians were inclined to
regard as a lower form of marriage.

150 MARRIAGE

of a self-reliant, mundane jurisprudence, that certain
civil attributes came in course of time to be held
necessary and sufficient to "just" marriage, without
inquiry whether divine approval had or had not been
sought and obtained. The later law ignored the
religious element, and prescribed as the sole essen-
tials of marriage: Connubium, Marriageable age,
Consent of the parties (usually manifested by the
domum deductio), and Consent of the eldest living
male ancestor where a contracting party was alieni
juris. The bridegroom, if more than one of his male
ancestors were alive, required the consent of all of
them. Although traceable in part to the jus sacrum
and the jus divinum, these essentials represent the
formalization of legists who apparently never at-
tempted to comprehend their history. Yet through
long ages of unbelief and materialism, ancient re-
ligious forms continued to be observed to an extent
which depended mainly upon public opinion and
individual predilection.

The luckiest time for weddings was considered to
be the second half of June, May being unsuitable
because of various solemn festivals, during some
of which sexual intercourse was forbidden. The
Roman wedding, like every important enterprise,
was preceded by taking the auspices,1 and the first

1 Cicero, De Div., i, 46. Plebeians had originally no right of
active participation in the public auspices, and remained to the
last ineligible for the higher priestly offices, but there was nothing
to prevent their taking auspices on private occasions, or, if

MARRIAGE 151

act of the marriage ceremony was the sacrifice.
Every form of life, animal and vegetable, was held
to be equally the gift of the gods, and procreation
being avowedly the exclusive object of the marriage,
the appeal on such occasions was directed chiefly to
the fertilizing and vitalizing divinities of husbandry.
Flowers decorated the house, and garlands were
worn by bridegroom and bride, kinsfolk and guests.
Great care was bestowed upon the preparation of
the bride. The day preceding the wedding she had
gone through the ceremony of solemnly discarding
the toga praetexta, worn by maidens and boys, which,
with her dolls and toys, were devoted to the gods as
a formal leave-taking of childhood. Invested in her
bridal raiment, the all- white1 toga pura and tunica
recta woven in the ancient fashion, girdled with the
woollen belt with the knot of Hercules — probably
the precursor of our " lover's knot " — her hair parted
into six locks with the hasta caelibaris,2 and ar-

ignorant of the formulae, employing an augur to do so. The
divinities consulted were the old Latin and Sabine gods, who,
though in many cases identical at bottom with the more specifi-
cally national deities, were on domestic occasions regarded more
in a homelike and familiar aspect. Thus, the chief patroness of
the nuptial festival was Juno pronuba.

1 White, the colour most agreeable to the gods (Cic., De Leg., ii,
1 8), was the usual wear in the early ages. Black was always
mourning wear until the Empire, when vivid hues had become so
fashionable that plain white was considered sufficiently funereal.

2 Plutarch, Q. Rom., 87. In earliest ages it may have been
customary to cut off the bride's hair with the hasta caelibaris, and
probably a feint was always made of doing so. That ancient

152 MARRIAGE

ranged with woollen bands (vittae), her head cov-
ered 1 by the flammeum or red veil, symbolizing the
sacred fire of the new home at which henceforward
she was to worship, and surmounted by a wreath of
flowers of her own gathering, she was led into the
circle of expectant guests by her pronuba, a married
friend who had assumed responsibility for her due
preparation. Upon joining of hands by bride and
bridegroom — dextrarum junctio2 — the sacrificial vic-
tim, a swine or sheep, was forthwith immolated; but
the ceremony would be interrupted, and the projected
union postponed or abandoned, upon the detection
of any adverse sign during the sacrifice, or any
natural disturbance, as a thunderstorm. If nothing
of bad omen occurred, the bride would thereupon
pace with the bridegroom around the house-altar,
preceded by a boy with the hymeneal torch of white-
thorn, and followed by other youths who had not yet

instrument was retained as a part of the time-honoured cere-
monial, but if, in historical times, a single tress was still severed, it
would be with a more modern and convenient appliance. The
hasta caelibaris, unlike the ordinary weapon of offence, was curved
in shape and did not symbolize the husband's proprietary right.
Rossbach, Romische Ehe, 286, 290 ff.

1 The act of covering the head (nubere, obnubere) gave its dis-
tinctive name to the religious marriage ceremonial. But it was
always usual to cover the head during worship.

2 Ad. Pictet, Origines Indo-Europ., ii, 336: "Le contact des
mains a ete de tout temps le symbole naturel d'une promesse
donnee, surtout en ce qui concerne le mariage. ... La dex-
trarum junctio faisait partie, chez les Romains, de la ceremonie
des noces." Cf. Pliny, H. N., xi, 45.

MARRIAGE 153

doffed the toga praetexta. Towards evening, after a
solemn repast, came the domum deductio, simulating
the ravishment of the bride from the parental
abode, undoubtedly a survival of bygone ages, when
nomad Aryan braves had been accustomed by force
and stealth to win their partners from neighbouring
camps. Fashion ordained that the bride should dis-
play reluctance and offer resistance. With mock
violence, amid tears and reproaches, she was torn
from her mother's arms, dragged from the house,
and led through the streets, between two of the
youths who had already officiated. Spindle and dis-
taff, symbols of her housewifely duties, were carried
after her, relatives and guests, and probably an un-
invited crowd, followed in a kind of triumphal pro-
cession. The bridegroom, going before, scattered
nuts to the children in token that he had put away
childish things, the wedding fescennines1 were
chanted and shouts of Talasse!2 rent the air. At

1 The name was said to be derived from the Etruscan town
Fescennium. Sometimes the opportunity would be seized to
grossly vilipend unpopular personages by singing libellous verses,
a practice against which one of the enactments of the XII
Tables is supposed to have been specially directed. But usually
the fescennini were merely rough popular doggerel, perhaps
largely improvised, in which the occasion was improved with
bucolic coarseness and plain speaking: "procax fescennina
locutio," Catullus, Carm., 61; "joci veteres obscoenaque dicta,"
Ovid, Fast., iii. In this form they may have somewhat resembled
the Schnadahiipfeln of the Tyrolese and Bavarian peasants. Fas-
tidious ears would probably prefer the latter.

2 The Romans continued to repeat formulas and invocations
long after their significance had been forgotten, and no classical

154 MARRIAGE

the entrance of her new home the husband advanced
to meet her, and upon his asking who she was, she
pronounced the solemn formula, Ubi tu Gaius, ego
Gaia.1 She bound the doorposts with wool to sym-
bolize her wifely duties in the household, and anointed
them, in sign of fertility, with wolf's or swine's fat.
She was then lifted over the threshold,2 fire and
water were offered to mark her introduction into the

writer has satisfactorily explained the meaning of Talasse. Prob-
ably Talassus was an ancient Sabine god, whom Rossbach believes
to have been identical with Consus. (Romische Ehe, 347.) Livy's
explanation is, of course, as mythical as the remainder of the
episode he describes.

1 Possibly this pronouncement may have been made a second
time when the marriage was coemptione. Perhaps the formula
denoted that the bride had now adopted her husband's name.
Mommsen, R. F., i, n; Karlowa, R. Rechtsg., ii, 156. A more
likely explanation, to my mind, is given by Rossbach (Rom.
Ehe, 355) following Plutarch. Gaius (oldest form Gavius) is con-
nected with a word signifying " cattle," which in primitive society
stood for wealth in general. The sentiment expressed is, there-
fore, "Where thou art Lord (the owner of cattle) there am I
Mistress." Rossbach mentions, only to reject, a less delicate inter-
pretation. Possibly, however, nothing more was meant than that
a man had found his complement. Gaius was a common name,
and the formula might have the homely meaning: Wherever
thou, Jack, art, there will I, Gill, be.

2 This is by some supposed to have been part of the mock
violence used towards the bride. But if the order of the events
is correctly given above, she had before entry already evidenced
by word and deed her acceptance of the situation, and further
force was meaningless. Perhaps she was lifted over to avoid an
omen; an unfortunate stumble upon the threshold would have
condemned the marriage as unhappy; cf. Catullus, Carm. 61,
" transfer omine cum bono limen aureolos pedes."

MARRIAGE 155

new cult, a coin was handed to the husband tq re-
present her dowry, and another presented as an
offering to the house Lares, a third having been
previously dropped in the street to propitiate the
spirits of the crossways — Lares compitales. She
then retired with the pronuba, who prepared the
nuptial bed, which the husband was not permitted
to approach until night had set in. On the following
morning, the guests having reassembled, the young
wife took her place beside her husband and performed
her first sacrifice at his ancestral altar.

The picturesque and impressive ceremony, of
which only the salient features have been handed
down to us, continued, though not without modifica-
tion, to form part of the nuptials of most Roman
maids throughout the pagan period. But in historical
times it was, except in confarreate marriages, without
influence upon the legal status of the spouses inter
se, and the secular law, which overlay sacral custom,
left auspices and ritual to be observed or neglected
at the caprice of the individual, demanding only
Connubium, Marriageable Age, or Puberty, and
Consent. We have now to inquire how far these
requirements were themselves the products of con-
siderations which had their root in prehistoric
conditions.

Conmibium. — Connubium was uxoris jus ducendae
facultas, the right of contracting a valid ("just")
marriage according to the civil law of Rome, and
founded upon sanctified custom (fas), statutory enact-

156 MARRIAGE

ment, or international treaty. Originally designed to
prevent intermarriage between persons too closely
related by blood, or strangers who were not asso-
ciated in cult, the rules of connubium were both
exogamous and endogamous. The table of pro-
hibited degrees was widely drawn, extending origin-
ally, it is believed, so as to include second cousins,
and in this respect it was immaterial whether the
relationship was agnatic or cognatic, and of the full
or half blood. It may have been that the ancient
Aryans understood the dangers arising from mar-
riages between persons very closely related by
blood; or that the precaution arose from sound
primordial instinct.1 But it seems equally easy to
assume that the true motive lay in moral, rather than
physiological considerations. The intimate associa-
tion which continued to exist among gentiles and
familiares in the early days of Rome admitted and
compelled, among closely related persons of opposite
sexes, a degree of familiarity which was considered
innocuous only so long as the mind was habituated
to regard them in the light of brothers and sisters,
repelling as incestuous any suggestion of sexual
intercourse.2 Accordingly, we are prepared to find,
and do find, the restrictions upon connubium due to

1 Cf. Westermarck, History of Human Marriage, cc. 14, 15.

2 Following this order of ideas, it seems reasonable to suppose
that the prohibited degrees were co-extensive with the circle of
the jus osculi. Cf. Plutarch, Q. R., 6; Muirhead, R. L., 26; Smith,
Dictionary, ii, 139; Bryce, Studies, ii, 411. But contra Rossbach,
R. Ehe, 434-

MARRIAGE 157

relationship relaxed in later ages,1 when the gentile
bond no longer involved habitual physical propin-
quity; a relaxation in no way connected with the
slackening of the moral sense among society at large.

Persons who, though strangers in blood, had be-
come agnatically related at law by adrogation or adop-
tion, were under the like disability, which, however,
ceased when the artificial agnatic tie was severed
by emancipation, except in regard to those who had
stood closest in the adoptive relationship.2 Parents
could not marry their children's widows or widowers,
nor step-parents their step-children.3

Perhaps the intimacy produced, if not by habitual
domestic fellowship, at least by frequent personal
intercourse, may have originally prompted the with-
holding of connubium between gentilis and gentilicia
(or gentilicius), as it would also explain why there
could be no just marriage between patron (or patrona)
and liberta (or libertus); notwithstanding that in
each case there was to some extent community of
cult. But in the historical period the bar to inter-
marriage was undoubtedly the servile descent, or
the quasi-servile position of one of the parties. The
old form of clientage was already obsolescent in the

1 The prohibited degrees were first narrowed in the sixth cen-
tury urbis, after the first Punic War. Subsequently, marriage be-
tween first cousins was permitted. Later still, for the convenience of
the Emperor Claudius, intermarriage with a brother's daughter was
legalized, but scarcely any one availed himself of the permission
(Suetonius on Claudius), and it was again prohibited byConstantine.

2 Gaius, i, 59, 61. * Ibid., i, 63.

158 MARRIAGE

early Republic, and the lex Canuleia did not exclude
clients from its benefits. But the taint of servile
birth forbade just marriages of freed with freeborn
persons generally, and they were not expressly
legalized until the early Principate.1

Whilst the Roman citizen was denied the right to
wed his near relatives, the policy of the older society
had been, nevertheless, to confine the scope of alli-
ances ; and marriage outside the gens — gentis ecnuptio
— when allowed, was originally subjected to special
supervision. Probably a client was at one time un-
able to look beyond his gens at all for a yokemate.
A gentilis could contract just marriage with the
member of another gens; and so could a citizen
with the citizen of a foreign State, if connubium
with its nationals had been established by imme-
morial custom or special treaty between the cities.2
The jus connubii had perhaps always existed between
Rome and most of the Latin cities, perhaps also with
some cities of Etruria. We have seen that all or
nearly all Latium was to some extent united in a
common cult, and that a large proportion of the
divine lore of Rome undoubtedly originated from be-
yond Tiber. Originally, as has already been pointed
out, the unattached Roman plebs had neither the
sacral community, which was the normal postulate

1 Dig., xxiii, 2, 23. Mommsen, Staatsrecht, iii, 429-30. Senators
and their descendants were still excepted.

2 Intermarriage with barbarians always remained in bad odour.
Milesne Crassi conjuge barbara turpis maritus vixit? Horace,
Odes, iii, 5.

MARRIAGE 159

of intermarriage, with patricians, nor the faculty ex-
tended to recognized political bodies, of concluding
solemn compacts in their corporate capacity. But the
Leges Sacratae, which were in form and substance
analagous with treaties between independent nations,
advantageously altered the status of the plebs, and
the lex Canuleia in 307 urbis removed the unnatural
barrier.

It seems difficult to escape the conclusion that
what is called confarreatio, which, according to the
Roman legists of a later age, was the distinguishing
characteristic of patrician marriage, was originally
the ceremony peculiarly applicable to inter-gentile
alliances only. The old Roman marriage service
must have been substantially as we have already
described it, for marriages of all kinds. The alleged
distinguishing incidents of confarreatio are the use
of the far, or sacred cake, the seating of the nubentes
upon a sheepskin, certain spoken formulas (certa et
solemnia verba),1 particulars of which have not been
transmitted to us, the assistance of the principal State
priests, and the presence of a prescribed fixed num-
ber of ten witnesses. But it is exceedingly doubtful
whether the cake of far, or spelt, though it gave its
name to the ceremony, was peculiar to confarreate
marriage; nor is it easy to assign to the sheepskin
its special significance, assuming it to have played
a part in the confarreate ceremony only. On the
other hand, the presence of representatives of the
1 Gaius, i, 112.

160 MARRIAGE

State is, without special exigency, inexplicable. If
anywhere, Government concurrence was superfluous
in ordinary marriages between patricians. Marriage
was entirely a domestic matter of the gens, and later
of the family; the gentile sacra, far from requiring
external assistance, had laid down the ceremony in
its essentials long before Rome had existed as a
political entity, and the whole trend of the gentile
tradition was antagonistic to the intrusion of the
State. I cannot help thinking Professor Cuq1 correct
in his conjecture that the presence of State priests and
the ceremony known as confarreation were usual only
with intermarriages between persons of different
gentes. On such occasions the presence both of high
priests and witnesses is useful and natural. A gentilis
was about to renounce her sacra, and deprive her
kinsmen of tutelage and other rights in posse. The
rule (which afterwards passed into law) that flamines

1 Cuq, Institutions juridiques, p. 208. " Le manage est reste un
acte d'ordre purement prive, qui n'est soumis pour sa formation a
d'autres regies que celles qui resultent des usages domestiques et
de la religion." The absence of a minister of religion from a mar-
riage ceremony need not denote that a slighter degree of sanctity
attached to it. Even under the Christian Emperors no eccle-
siastical benediction was required before the ninth century A.D.,
and then only in the East Roman Empire. In Western Europe,
privately celebrated marriages were recognized until a Decree of
the Council of Trent (A.D. 1563) expressly demanded the presence
of a priest and witnesses (Pothier, Traite du Mariage, in vol. iii,
284-291; Blackstone, Comm., i, c. xv, says: "The intervention
of a priest to solemnize this contract (i.e. marriage) is merely
juris positivi, not juris naturalis aut divini ").

MARRIAGE 161

majores and reges sacrorum must have been born of
confarreate marriage, perhaps sprang from jealous
precaution against the gradual monopolization of the
principal sacral offices by one or a few gentes, a
rivalry for which seems indicated by the retention of
separate colleges for the cults of Mars and Quirinus,
and of obsolete tribal distinctions. The number of
ten witnesses has so far baffled conjecture. They may
have represented the ten gentes comprised or repre-
sented in the bride's curia, or the number may have
been arrived at by doubling the minimum number of
witnesses required to validate an ordinary convey-
ance.1 The certa et solemnia verba, in so far as they
may have differed from the received formulas of the
ordinary marriage-service, probably had reference to
the detestatio sacrorum, by which the bride solemnly
dissociated herself from sacral community with her
own gens before entering her husband's.

Unions between persons lacking the jus connubii
with one another thus, in the eye of the public and
of the law, fell into two very distinct classes. Con-
jugal associations seriously entered into where con-
nubium, though wanting, was not expressly with-
held by morality — for instance, the union of a
patrician with a plebeian before the Canuleian Law,
or of a Roman citizen with a peregrina, with whose
State no connubial treaty existed — were readily dis-

1 Marriage was sacred to the benign (as opposed to the
destructive) deities, and even numbers were more agreeable to
the former.

M

162 MARRIAGE

tinguished by society from mere adventitious or
promiscuous intercourse, and soon attained to some
recognition by the State as matrimonia juris gentium,
though they could not confer either manus or patria
potestas. But unions of closely-related persons were
reputed incestuous: they were not only of no effect
civilly, but, whether existing under the form of
marriage or otherwise, involved the heaviest penal
consequences upon the parties. Children born of such
unhallowed loves were deemed accursed and devoted
as monsters to the gods. The Decemvirs, by their
express prohibition of marriages between patricians
and plebeians, which was the proximate cause of the
lex Canuleia, maladroitly gave themselves the appear-
ance of branding them as contrary to public decency,
and by affecting to cast opprobrium upon a number
of existing honourable unions, aroused a righteous
and intense indignation at a disability which only
now became intolerable.1

Marriageable Age. — In the prehistoric period
the age-limit, if fixed at all, would be established
by the custom of the gens. More probably no such
limit existed, and the sole test of nubility was ac-
tual puberty in the boy, and viripotency in the girl,
determined by physical examination. In course of
time the marriageable age became arbitrarily fixed
at fourteen for males and twelve2 for females, limits

1 Cicero, De Rep., ii, 37.

2 The earlier age for girls propter votorum festinationem, says
Macrobius, Som. Scip., i, 6.

MARRIAGE 163

which remained in force throughout the Empire,
and still hold good for some countries, including
England and Scotland, notwithstanding physical dif-
ferences induced by race, climate, and civilization.
Even marriage between impuberes, though null at the
time, became validated by cohabitation of the parties
with the intention of entering into marital relations
upon puberty. No doubt marriages were usually con-
tracted at what would now be considered a very early
age. At seventeen the youth assumed, with the toga
virilis,1 the responsibilities of a full citizen, and prob-
ably little time elapsed between that event and
taking a mate, for in ancient Rome the right was
practically synonymous with the obligation to marry.2
Economic objections did not, as now, exist against
early unions. A son's marriage did not generally
change his position in the father's household, where
married sons and grandsons with their families
continued, during the simpler ages, to reside under
one roof.3 Remaining under the patria potestas, his
personal services continued at the disposal of his
ancestor, and his very disability to hold property
independently strengthened his title to joint enjoy-
ment of the family possessions.

1 Aul. Gellius, Noct. Att, x, 28.

2 Cic., De Leg., iii, 3. Cf. Friedlander, Rom. Sittengeschichte,
i, 248 ff.

3 Valerius Maximus, iv, 4, 8, mentions the Aelii, who lived in
this manner at a period subsequent to the Punic Wars. It seems
that a similar custom has not yet died out in Eastern and South-
Eastern Europe ; Maine, Early Law and Custom, 239 ff.

1 64 MARRIAGE

As the advent of procreative power produced
a right and obligation to exercise it for the propa-
gation of legitimate offspring, liberorum quae-
rendorum causa, so the converse resulted from its
decay; marriage at an advanced age was repro-
bated by society, and at one period forbidden by
law.

Consent. — A man or woman under the power of
any person could not marry without that person's
consent. Apparently the rigidity of family discipline
at first admitted no exception, and children of an
imbecile or a madman, who was incapable of con-
senting, remained in enforced celibacy, pending his
decease or return to sanity.1 Moreover, a grandson
in potestate required the consent, not only of his
grandfather, but of his father, upon the principle
that no man should have an heir forced upon him
against his will, as might be the case were the father's
consent dispensed with, a precaution unnecessary
with women, who married out of their family alto-
gether.

1 Later this was doubted, and the view became general, in the
case of daughters at least, that the absence of the father's dissent
implied his consent. A constitution of Marcus Aurelius expressly
released children of imbeciles from the restriction, but it was
reserved to Justinian to finally settle the law in favour of the mad-
man's son, besides effectually providing for the coercion of an un-
reasonably recalcitrant parent of sound mind. Cod., v, 4, 25.
Children of an absent father might validly marry without his con-
sent if the absence lasted longer than three years, or even before
the expiry of the three years if the match were a suitable one.
Dig., xxiii, 2, 10-11.

MARRIAGE 165

Consent of the parties themselves, even though
alieni juris, was in historical times certainly equally
necessary to a valid marriage. But it has been
doubted whether in the earlier period the parent
had not the right of giving away his child in marriage
even without the child's consent. The more reason-
able view seems to be that upon this point the later
and the earlier law of Rome coincide. It is true that
duty and interest urged the ageing ancestor to make
timely provision for the continuance of the family,
and an unwilling adolescent was liable to sacerdotal
or censorial penalties for neglect of a sacred duty.
But there is a wide difference between a general
obligation to marry, and forced marriage with an
unfavoured partner. The ancient principle expressed
by the later maxim, Nemo invitus haeredes suos
habere potest, is not, however, of itself sufficient to
disprove the theory of compulsory marriage, since
the man might deprive himself of heirs by refusal to
perform the marital act, and the woman, who for
obvious reasons was not equally at liberty to do so,
could not originally have heirs at all. In practice,
recalcitrancy was probably as rare as it still is
among nations where parental authority assumes a
quasi-sacred character. Nor need we assume any
pronounced inclination for or against a given person
among the majority of youthful Romans, whose
opportunity of frequent intercourse with the opposite
sex was confined to relatives within the prohibited
degrees. But although consent might have been

1 66 MARRIAGE

occasionally extorted by pressure, I cannot think
that the ancients would usually conceive a marriage
ceremony performed by compulsion as other than
a desecration of the gods whom it professed to
honour.1

MANUS

What was the effect of the marriage act upon the
woman? It is undoubted that in the early ages of
Rome just marriage involved the submission of the
woman to her husband or his ascendant. At civil
law, a wife having passed under the Hand was in
respect of the husband loco filiaefamilias, co-ordinate
with her own daughters, and when a widow, the
ward of her nearest agnates, who would probably be
her own sons. Her subjection to the private juris-
diction of the family-head followed as a matter of
course, and even death was accounted not too grave
a penalty for an injured husband to mete out to the
unchaste or unduteous wife. Except the relationship
of gentilitas, which she retained when married within
her own gens, her civil relationship with her natural
family was snapped. She could no longer inherit ab
intestate of her father, but only, in equal shares with
her own children, of her husband. Property of course,
if alieni juris, she could not have held during her
spinsterhood, but if sui juris at the time of the
marriage cum manu, what property she might have

1 Cf. F. de Coulanges, Cite Antique, p. 429.

MARRIAGE 167

possessed passed to the husband, or, if himself in
potestate, to his ascendant. Property acquired by
her during coverture became the property of the
person in whose power she was; but neither she nor
her husband could be sued in respect of ante-nuptial
debts contracted by herself, until the equitable
jurisdiction of the Praetor came to the aid of the
creditor.1

Would a purely religious marriage, but without
confarreation, suffice to bring about this result? We
think there can be no doubt that membership of a
cult involved a subjection to its Head, only qualified
by the rules of the gens and the precepts of the fas ;
and as no person could simultaneously belong to the
cults of two families or gentes, it follows that the
marriage of a girl according to rite, and her sacrifice
at the husband's house-altar, operated in the earlier
ages to separate her from the control of her natural
father, and to create over her a new power strictly
analogous to, though not at first necessarily identical
in every effect with the manus produced by confarrea-
tion, coemption or usus.

I have already endeavoured to show that the
religious rite by which just matrimony was con-
tracted did not originally involve the presence of
State priests, or the other distinguishing character-
istics (if any) of the so-called confarreate ceremonial,
except in the case of an inter-gentile marriage.
Before we consider the incidents of inter-gentile
1 Gaius, iii, 84; iv, 38, 80.

1 68 MARRIAGE

alliances, it is desirable to study a little closer the
nature of manus at civil law.

Nothing is known to us in the nature of manus
which would of itself indicate a connection with the
ancient law founded upon and derived from religion.
The civil law, so far as it concerned itself with the
private relations of persons, recognized, as a general
rule, exclusively the Heads of Families, a principle
which, as we have already seen, had its foundation
in the process of the formation of the political com-
munity. Where, therefore, a person in potestate
was obtruded upon the notice of the law, there was
no alternative but to deal with him not directly, as
an individual, but relatively, as an integral part of
his family, and to throw upon the recognized head
of the latter all civil responsibility for his good
behaviour, whilst on the other hand admitting an
absolute right, equivalent to proprietorship, in the
head over his dependant. The same form of action
at law enabled the paterfamilias to recover a child,
slave, or beast which had been wrongfully withdrawn
from his possession, and the law condemned him to
make reparation for any damage wrongfully caused
by his child, slave, or beast. Manus was originally
the general term expressive of the property-owner's
dominion, and when human relations began to be
regulated by civil law, it was applied to the man's right
over his chiefest and most important belonging — his
wife. The theory of the law of course in no way
corresponded with the relations which existed in

MARRIAGE 169

practice between paterfamilias and his dependants.
The corrective of his dominion was left to be supplied
by the sacral law, which recognized and protected
wife, children, and even slaves, as individual partici-
pants of a family cult. Nor did the civil law remain
consistent with its own fiction. Affecting to acknow-
ledge no distinction between a wife or son and a
slave, in reality it distinguished very clearly between
all three. It had consciously attempted to graft a
relatively modern and purely secular law of Property
upon a more ancient religious law of Persons. A
law of property can only have begun to emerge with
any distinctness when the system of gentile com-
mon enjoyment was in its decadence, whereas the
authority of the Ancestor reached back into the
ages beyond the great Migration. Accordingly, the
application of proprietary to authoritative rules is
admittedly forced; and the position of the wife —
and to a somewhat lesser degree of the children
— towards the paterfamilias unmistakably discloses
the double set of principles derived from these two
widely separated sources. Thus by analogy with,
but notionally different from Dominium, Usucapio,
Mancipium, we have Manusand Potestas, Usus, Co-
emptio. The legal status of the wife is still further
discriminated, even at civil law, not only from the
position of a chattel, but from that of a child. Manus
and patria potestas, though constantly brought into
line, are readily distinguishable. Roman jurists
habitually used the words loco esse, to indicate not

170 MARRIAGE

an exact but a qualified similarity, and the termr
loco filiaefamilias,1 no more assigns to the wife for
all purposes the position of her husband's daughter,
than loco servorum is intended to allot to free
persons in mancipio the precise condition of slaves.
Thus, whilst the property of a person in potestate
was at civil law unreservedly at the disposal of the
Head, the property which the wife might bring into
marriage, res uxoria, either in her own right or as
the gift of her relatives, was not necessarily lost to
her for all time. In case of dissolution of the mar-
riage, she had a prima facie right to the return of
part or all. It is true that if the dissolution had been
induced by her own fault, the husband, in the exercise
of the judicium domesticum, might decree its for-
feiture, and the limits assigned by the sacerdocy to
his discretion are not ascertainable; but the dis-
tinction clearly marks the wife's status as a thing
apart. It is also doubtful whether manus included,
even at civil law, the right of sale, mancipation, or
noxal surrender of a wife.2 Again, the husband,
though entitled to appoint by will a tutor to his wife,
might also by will leave the choice of a tutor to

1 The wife in manu, although loco filiaefamilias, was neverthe-
less called materfamilias, a phrase which, though it correctly
denotes her position in fact, is in entire disagreement with that
which legal fiction affected to create for her. Aul. Gell., Noct.
Att., xviii, 6.

2 Karlowa, II, i, p. 153. The mancipation of the woman in co-
emption, particularly fiduciary coemption, was a clumsy contriv-
ance ad hoc.

MARRIAGE 171

herself (tutoris optio),1 a discretion not conferrable
by testament upon a person in potestate.2

The custom of acquiring manus by civil act may
have been introduced into Rome from neighbouring
cities, or have become gradually legalized by the
practice of the Roman plebs. Conveyance of pro-
perty by mancipation was in all probability well
known in Italy, and there is no adequate reason to
doubt that Roman plebeians, certainly from the time
of Servius Tullius, and probably before, enjoyed
rights of commercium, and could validly acquire and
vest property. But the status of plebeians during the
regal and early Republican periods was precarious,
and in matters touching sacra and auspices they were
generally helpless when the validity of any ceremony
was challenged. Moreover, clients who chafed at
the restriction obliging them to marriage within the
gens would welcome the establishment of a civil
practice which overrode it. Distrust of the sacer-
docy, and the desire for family relations of unassail-
able legitimacy, would suffice to suggest the practice
of blending with the religious ceremony a civil
procedure (coemptio) founded upon that by which
the transfer of the higher class of property was usually
effected. Defects in taking the auspices, or in the
later rites, were now cured when the woman had
passed into the hand of her husband by the known
formalities of the law.

The precise form in which coemption took place
1 Gaius, i, 150. * Karlowa, II, i, 154.

172 MARRIAGE

has not been preserved to us, but it may have been
somewhat as follows: The man asked the woman,
in the presence of at least five Roman citizens of
the age of puberty, besides a balance-holder, whe-
ther she would be to him materfamilias, to which
she responded affirmatively, and in her turn asked
whether he would be to her paterfamilias, receiving
also an affirmative reply. This marked the consent
of both to contract the marriage, and, on the part of
the woman, to so contract cum manu. The act of
mancipation then followed, the formula being perhaps
to the following effect: Te ego ex jure Quiritium in
manu mancipioque meo esse aio, tuque mihi coempta
esto, etc.; her answer being: Ubi tu Gaius, ego
Gaia. The ceremony was not complete without the
auctoritas of the father, or tutor if the bride were sui
juris.1 Already prior to the XII Tables, coemptive
marriages between patricians and plebeians (inci-
dentally a strong indication of wealth among the
latter) appear sometimes to have taken place.2 Had

1 Karlowa, II, i, 158. The fact that even the father is only men-
tioned as auctor is considered by Karlowa to show that the woman
acted as a principal, and that there was not even a pretence of her
being sold by him.

2 The act of coemption, of course, placed the woman in the
man's power (mancipium), but as, where connubium was wanting,
marriage was at most juris gentium, manus cannot have been created,
and the above formula would not be strictly appropriate. Karlowa,
II, i, 167, thinks that such marriages were " just " even before the
lex Canuleia, and conferred potestas upon the father over the issue,
though not gentilitas upon the latter, nor upon the wife if she were

MARRIAGE 173

the law remained neutral, connubium between the
orders would in course of time have grown up by
custom. The decemviral blunder, to which we have
already referred, violently precipitated the consum-
mation which it sought to check. The effect of the
lex Canuleia was to validate all marriages which
were non-just by reason only that the parties be-
longed to different orders, so that a plebeian wife
entered her patrician husband's gens, and became
patrician, as did also the issue of the marriage. The
inability of plebeians to take part in the ceremony
of confarreation was unaffected, for it involved public
sacrifice to the State gods, which plebeians were
only as yet entitled to perform in privacy.1 When
the City magistracies had, one by one, been opened
to the plebs by statute, this point was no longer
important. The sole remaining disadvantage was
the disqualification for the higher priestly offices 2 of
persons not being the issue of confarreate marriage,
and not being themselves so married; and as these
offices carried no great political power, the exclusion
was not resented by the plebeians.

We have now to consider the second means of
creating manus over the wife, which the secular law,
as declared in the XII Tables, afforded. If the

the plebeian. This seems to be allowing too little time for custom
to pass into law.

1 Karlowa, Rom. Rechtsges., II, i, 165.

2 The offices of flamen of Jove, Mars, Quirinus, and of rex
sacrorum. Gaius, i, 112.

174 MARRIAGE

application of Mancipation to marriage was arti-
ficial, still more so was that of Usucapion. Transfer
of persons in potestate by the copper and the scales
was a well-known process, and however essentially
coemption may have differed from mancipation, the
outward analogy was sufficiently discernible. The
analogy of usucapion with usus was much slenderer.
As a rule, usucapion gave quiritary dominion over
property, not originally taken violently or theftu-
ously, which the present possessor had received in
good faith and held under some just title for a full
year, in the case of movables, or for two years in
the case of immovables. It was a principle limited
to Things: there is no instance of the usucaptibility
of free persons in the law of Rome. Yet in the end
plebeian ingenuity created and established the Usus,
whereby a woman, after a full year's cohabitation
with her husband, was held, by analogy with usu-
capion, to have passed under the Hand.

We now turn to the power originally conferred
by Confarreation. We are given to understand by
the Roman jurists that this power was manus, and
in all respects equivalent to that created by coemption
or usus. But there seems reason to suspect some
confusion of thought if the statement is to hold good
for the most ancient times. The language of the
jurists was the language of the Roman civil law.
Marital relations similar to those expressed by manus
are much older than the Roman or any law, nor are
they confined to the Aryan race. The power of the

MARRIAGE 175

Roman husband was merely an incident of the
supreme authority which vested in him as chief
priest of the family, so much so indeed that so long
as an ascendant was alive, the latter, and not the
husband, wielded it.1 When the young girl had
formally dissociated herself from her natural ascend-
ant's cult with his concurrence, and had been admitted
to the cult of the husband, by marriage solemnized
conformably with the gentile family sacra, the union
by virtue of the sacra alone was what lawyers after-
wards called "just," and the issue, if approved by the
head of the cult, came, as members of it, under what
the law knew as the patria potestas. Indeed, so long
- as the patriarchal integrity of the gens was kept
nearly intact, a girl wedded within the gentile circle
remained under the authority of the gentile head,
and only changed her allegiance by marrying into
a strange gens. All this was older than Rome,
older perhaps than the Aryan race. The marital
and parental authority derived from the religious
rite was curbed by the rules of the gens, and by the
precepts of the fas as declared from time to time by
the sacerdocy — restrictions which were afterwards
ascribed to individual law-givers by the naiveness of
historians, trained like Dionysius, to seek the source

1 If a woman married cum manu a filiumfamilias, whose father
subsequently emancipated or gave him in adoption, the woman
remained in the power of her father-in-law, and upon his death
became sui juris. She could not fall again under the manus of
the husband, since he no longer belonged to his natural father's
family.

176 MARRIAGE

of all law in the manifested will of an omnipotent
autocracy. These restrictions of authoritative power
came in part to be incorporated with the civil law
of Rome. "

In the regal period plebeians had no gentes, or
had sprung from broken and ruined families, whose
sacra had been lost or partially forgotten. Most
of them were ignorant of divinity and incapable
of detecting the hidden sacral flaw which would
render their marriages unjust, degrade their wives
to concubines, and stamp their children as bas-
tards incapable of succeeding to the father's
heritage. Not inclination but bitter economic ne-
cessity directed the struggle of the plebs to secu-
larize the law, including the law of marriage.
Coemption must have become common when the
received religious dispensation of the community
had suffered its first great wrench in the abolition
of kingship, and plebeians had begun to miss the
aegis of the royal patronage. The Kings had in
part anticipated, the early Consuls wholly disdained,
the functions which a later age entrusted to a praetor
peregrinus. Instinctively, plebeians set about to
supply secular safeguards, and when once sufficiently
established, coemption and usus rendered unassail-
able the hitherto precarious justness of their mar-
riages.

Where manus was habitually acquired by a purely
civil act, the religious side of the marriage service
continued to be celebrated with a degree of con-

MARRIAGE 177

scientiousness which depended upon the individual,
and, among plebeians, became to some extent merely
decorative. Honour was still paid to the gods, and
the marriage was desisted from if the auspices were
palpably unfavourable; for the rest the plebeian,
whilst enjoying the beauty, was freed from the anxious
meticulosity of the patrician marriage service. The
more straight-laced patricians, though unable to gain-
say the legality, were reluctant to admit the equality of
the plebeian civil matrimonia with their own religious
nuptiae. Nevertheless, they could not fail to per-
ceive the convenience of a public ceremony which,
whatever defects might in other respects occur,
placed the lawfulness of the union beyond doubt,
legitimatized the expected offspring and conferred
marital power upon the husband. Moreover, the
desire was strong to differentiate their own from
plebeian unions by some striking feature. The in-
strument for achieving such a result lay close at
hand, and confarreation gradually became adopted
as the normal and distinguishing mark of all patrician
weddings.

Much speculation has been expended upon the
relative age of the various modes of creating marital
power. The above theory, if correct, supplies the
answer. The ancient religious marriage, according
to the rites of the gens, reaches far back into pre-
Italiotages; but confarreation can hardly be more
than coeval with the settlement of the Tribes and
the growth of some regular system of international,

N

178 MARRIAGE

or extra-gentile, relations. The practice of celebrating
intra-gentile, as well as inter-gentile, marriages by
confarreation was, probably, firmly established in the
infancy of the Republic, and is more recent than the
rise of coemption. Coemption, as we have seen, was
a plebeian device for avoiding the danger of defeat to
the intention of entering upon a just marriage, owing
to some flaw in the ceremony. It is impossible to
attribute to it extreme antiquity. Coemption, it is
true, has been held to have been the original form
of Roman marriage. I have already submitted that,
to my mind, the non- religious element of the marriage
service represented at first merely a supplementary
and precautionary measure, until its proved suffici-
ency dwarfed the importance of the religious rites.
But the connection of coemption with mancipation
equally negatives the antiquity of the former. If
coemption had always been practised by the ple-
beians, we must imagine them an order of men with
great laxity of religion and, comparatively, a highly
developed jurisprudence. Neither is characteristic
of the early Latins, and we should be thrown back
upon the theory — now rejected by overwhelming
authority — of an original non-Latin, probably non-
Aryan, conquered population — a population, more-
over, which although more civilized than the Ro-
mans, has, nevertheless, left no authentic trace of
its existence. Coemption most likely obtained recog-
nition soon after the Servian reforms had invested
plebeians with a status in the community which

MARRIAGE 179

the State could not, and the King from motives of
interest would not, ignore. When coemption was
recognized side by side with mancipation, usus took
its place side by side with usucapion.

It is relevant to enquire whether any real connec-
tion existed between coemption and the custom of
bride-purchase, which complemented and then super-
seded that of bride-stealing. Both practices had no
doubt once counted among the normal institutions of
old- Aryan society; and although neither can have sur-
vived the establishment of settled and ordered political
communities, the mimic ravishment of the woman
portrayed in the domum deductio may, with toler-
able certainty, be considered a remnant of the ancient
usage of bride-stealing. A similar claim, which has
been set up in favour of coemptio as a survival of
bride-purchase, rests upon less trustworthy founda-
tion. Bride-purchase was a very ancient practice,
and coemption, relatively, a new one. Generally
speaking, however numerous the exceptions, women
and, still more, children, during the migratory
period, must necessarily have constituted a con-
stant source of danger by embarrassing the move-
ments of the camp, besides increasing the difficul-
ties of food supply. Consequently, the woman was of
account only as the indispensable wife and mother.
The boys were tolerated in anticipation of their
future importance, but girls under the nubile age
were mere useless encumbrances. There was accord-
ingly a natural tendency to abandon girl babies, and

i8o MARRIAGE

import one's wives ready grown, if necessary by
violence, from weaker or more timorous neighbours.
But such an usage, if universally followed, would
have speedily ended in the complete extirpation of
females, and consequently of the whole race, since
to bring up one's girls was to invite constant and
disastrous attentions from outside. A counter in-
ducement was found in the practice of infant be-
trothals— the forerunner of the Latin sponsalia;1 and
peaceful courtships ended in a suitable gift to the
father, compensating him for the danger and expense
of rearing his child. Thus the instinct of racial
preservation evolved bride-purchase, and saved the
girl babe's life by investing her from birth with a
future or prospective value. Of the two methods,
peaceful and violent acquisition, the more forcible
was probably the less usual, and the first to disap-
pear. The abduction of a stranger life-partner, and
her violent installation at the family shrine, could not
fail to shock all but the rudest spirits among a re-
ligiously-inclined and ancestor-worshipping race. A
mere captive could not often aspire to the dignity
of an Aryan wife, and female spoils would be usually
relegated to the position of slaves, whilst their de-
scendants might rise to that of clients. When the
tribes became territorial, international comity must

1 The formula of the sponsalia was: Spondesne Seiam filiam
tuam Lucio filio meo uxorem dari? Dii bene vortant! Spondeo.
Originally it gave a right of action in Latium, but soon lost
its binding character in Rome, when marriage itself became
easily dissoluble.

MARRIAGE 181

have put an end to the ravishment of stranger
women for the purpose of making them wives.1
Regular warfare between the cities took the place
of former raids and forays, and the consequences
were far more serious, involving, as they usually
did, the complete political destruction and social
enslavement of one of the belligerents. The con-
ditions which had evoked bride-purchase entirely
passed away when a stable political State guar-
anteed to each citizen his belongings.2 Women be-
came plentiful as female infanticide tended to dis-
appear; and budding civilization recognized that
the maintenance of a wife in due comfort and
dignity involved moral and intellectual gain, in-
deed, but also material expenditure, towards which
the father — in lieu of receiving compensation — was
now expected to contribute.3 The transition from
the old order to the new is probably represented by
the practice which gradually grew up for the father,
instead of allocating his daughter's purchase-price
to his own advantage, to bestow all or part upon
her as a wedding gift. But when the wife came
under the marital power, as at first she invariably
did, the gift passed absolutely to the husband or his

1 As Rossbach points out, the legendary rape of the Sabine
maidens is founded upon the domum deductio, instead of vice
versa.

2 Cf. Wester marck, History of Human Marriage, 222.

3 Evidently this stage had not yet been reached by the Teutonic
tribes in the first century of our era, of whom Tacitus says:
" Dotem non uxor mariti sed maritus uxori confert."

182 MARRIAGE

ascendant ; and it therefore became usual to stipu-
late l beforehand that the fund, instead of falling into
the husband's family property, should be administered
by him as a thing apart, and revert to the donor on
the death either of husband or wife, or be forfeited
by the husband in certain contingencies, for instance,
unjust repudiation. With this stage the era of regu-
lar marriage settlements was practically reached, and
the Dos, or dowry, which figures so prominently in
the later law of marriage, took its place as a recog-
nized legal institution. Later jurisprudence not only
made the promise to provide a dos, promissio dotis,
enforceable by action at law, but acknowledged the
woman's right to be dowered by her father or as-
cendant if he could afford it. The Roman wife
doubtless owed not a little of her dignity to the
economic independence which her marriage portion
guaranteed.

We are therefore driven to suspect a hiatus be-
tween the disappearance of bride-purchase and the
rise of coemption. Coemption is admitted on all
hands to have been grafted upon mancipium or
nexum, but this was only possible with the aid of a
legal fiction as alien to the untaught Italiot intelli-
gence as barring the entail would have appeared
to early English feudal tenants. But even nexum
itself bears the stamp of a fairly developed mer-

1 Agreements of this kind could be made binding in law when
the XII Tables had authoritatively laid down : Cum nexum faciet
mancipiumque, uti lingua nuncupassit, ita jus esto.

MARRIAGE 183

cantilism, and, although possibly older than Rome,
seems necessarily to belong to a social stage in
which wife purchasing had become an anachronism.

• CONSENSUAL MARRIAGE (MATRIMONIUM CONSENSU,
SINE MANU)

From time immemorial marital power — exercised
however by the husband's ascendant if living — had
constituted the most important incident to the
ancient religious marriage-tie, whether contracted
with or without confarreation. A condition of just
marriage was now capable of arising by the purely
civil ceremony of coemptio, or the operation of usus,
each of which was creative of manus. In the earlier
Roman conception, therefore, marital power was in-
separable from just marriage of any kind. The
power had, however, originated not as an essential
of marriage itself but solely as a consequence of the
bride's initiation into her husband's family cult, and
this initiation was no longer indispensable to just
marriage when coemption and usus had become firmly
established. Many circumstances were concurring to
relax, especially in the plebs, the strictness of ancient
customs, and particularly the notions bound up in
domestic worship. With the increasing authority
and importance of the State the temples of the City
gods had begun to overshadow the house-altars.
Prestige and conquest had swelled the population
with involuntary recruits — some, men of broken

1 84 MARRIAGE

fortune, of wrecked homes, adventurers of all kinds,
free-thinkers by force of circumstance, whose looser
habits condoned a partial or total neglect of sacred
ritual. Religious consecration sank to a perfunc-
tory and increasingly disregarded office when the
civil law expressly made just marriage possible with-
out it. Nor could it long escape notice that if just
marriage could be contracted at all without religious
rites, it could be equally well contracted without
manus. And here at last we join hands with the
classical jurists, who laid down connubium, marriage-
able age, and consent1 as the sole indispensables of
just marriage.

Incidentally, as the civil gradually bore down
the sacral aspect of wedlock, and manus became
inseparably associated with one of three possible
modes of acquisition — confarreation, coemption, or
usus — a new order of ideas arose which withheld the
woman from the manus of the husband, even though
she had consented to sacrifice at his house-altar.
A marriage only religiously solemnized, if without
confarreation, which was possible to patricians only,
became of itself no longer creative of manus. The
wife, although she might nominally sacrifice to her
husband's ancestors, did not enter his agnatic circle,
but retained unimpaired her agnatic connection with

1 Ulpian, v, 2: Justum matrimonium est, si inter eos, qui
nuptias contrahunt, connubium sit, et tarn masculus pubes quam
foemina (viri)potens sit, et utrique consentiant, si sui juris sint,
aut etiam parentes eorum, si in potestate sint. Dig., xxxv, i, 15:
Nuptias non concubitus sed consensus facit.

MARRIAGE 185

her natural family. A wife married sine manu, there-
fore, remained under her natural father's potestas,
so much so, that he could at any time recall her from
the husband's custody,1 and even surrender her nox-
ally to a third party — abuses of authority which were
no doubt forbidden by custom and sacerdocy, though
they remained unchecked by the civil law until far
into Imperial times.2

Speculation has been aroused by the fact that the
marital power, which anciently undoubtedly accom-
panied every just marriage, should so soon have
become neither essential nor usual, and have ultim-
ately disappeared without a struggle. A solution
has been sought in the theory of an express enact-
ment elevating unions sine manu from marriages
juris gentium to the dignity of just marriages.3 Such
a statute would merit to stand beside the lex Canuleia
for importance, but without disputing the possibility
of its one-time existence and subsequent vestigeless
disappearance, the gradual and spontaneous evolu-
tion of society, such as we know to have taken
place, seems to furnish a less far-fetched though
equally sufficient explanation.

The XII Tables afforded the first statutory con-
firmation of the definite breach with the ancient
order of ideas. The analogy of usus with usucapion
was pursued to its logical conclusion by the enact-
ment that a wife not already under Hand could pre-

1 Cuq, Just. jur. des Rom., in. 2 Cod., v, 17, 5.

3 Karlowa, ii, 168; contra Sohm, § 79.

186 MARRIAGE

vent manus arising through usus by absenting her-
self for three consecutive nights (usurpatio trinoctii)
from her husband's abode before the completion of
an unbroken year of cohabitation,1 provided such
absence took place usurpandi causa, with the de-
liberate intention of breaking the use. Henceforward
manus gradually fell with women into a disfavour
proportioned to the ease with which it was defeated.
Coemption, having sunk into disrepute, was retained
only to further designs entirely foreign to its original
purposes. The vogue of free and just marriages
soon found its way into the charmed circle of the
patriciate. Confarreation, once the distinguishing fea-
ture of inter-gentile, and, later, of patrician marriages
generally, was increasingly rejected by Roman
ladies. The result was a scarcity of eligible candi-
dates for the higher priestly offices, which were only
open to those born in confarreate wedlock, and
themselves so married.2 Finally, in the early Princi-
pate, statutory enactments were made to limit the
effect of confarreation.3 Henceforward a woman
married farreo changed her family and came under

1 A father could not force his married daughter to break the
use, except indirectly by reclaiming her from her husband before
manus had arisen. The provision of the XII Tables seems to me
to dispose of any doubt as to the justness of marriages sine manu
at that period. To facilitate the perpetuation of non-just mar-
riages would have been not only contrary to public policy, but
apt to defeat one of the chief purposes which the plebs strove to
effect.

2 Gaius, i, 112. 3 Tacitus, iv, 16.

MARRIAGE 187

the marital power only " sacrorum causa." Her civil
status remained unaltered, and she neither lost her
ties of agnation in her father's family, nor acquired
any in her husband's.

Although marriage by mere consent of both
parties, and lasting only as long as such consent en-
dured, arose at a comparatively early period, some
ages must have elapsed before the full effect of the
modernized union had been translated from legal
theory into the received practice of society. During
the period now under review, the stringency of the
ancient conception of the family still remained strong
enough to hold in check that deplorable licence
which found free vent in the corrupt luxury of a
later civilization. It is therefore not within our pre-
sent purpose to investigate in how far the legal
instability of the marriage-tie was responsible for
those social phenomena which ultimately wrought
ruin to the classical world, and the process by which
that instability arose is only very briefly indicated
in the following section.

DISSOLUTION OF MARRIAGE

Originally there may have been no complete dis-
solution of marriage possible during the lifetime of
the parties.1 A wife had no remedy against the

1 In later times the indissolubility of marriage still held good
with regard to flamens. Festus: "flaminis uxor, cui non licebat
facere divortium."

i88 MARRIAGE

misconduct of her lord. A paterfamilias1 had the
alternatives of putting an erring wife to death or ex-
cluding her from the domestic sacra. Such a sent-
ence, which far transcended the bounds of moderate
correction, was not pronounced arbitrarily, but deliber-
ately, with due regard to the fas and the rules of the
gens, in his capacity of priest-judge presiding over
the domestic tribunal.2 The judicium domesticum
ordinarily consisted of all the male adults of the
family, but where a materfamilias stood arraigned for
a serious offence, natural relationship was admitted
to its rights, and humane custom demanded the con-
currence of all the accused's cognatic kinsmen.

Divortium under the civil law was dissolution of
marriage by mutual consent of the parties. Being
possible only when the wife was not in manu,
it was of more recent date than Repudium, where
the husband put away his wife for some grievous
fault. Repudiation, when it became established,
lay within the domestic imperium of the pater-
familias. But confarreate marriages, which had
been celebrated with the concurrence of the State
priests, were dissolved (also with their concurrence)
by a prescribed ritual styled the diffareatio, which

1 It must be constantly borne in mind that the paterfamilias
need not be the husband of the offending woman; he might be
the husband's ascendant.

2 Gide, Etude, 104: Les anciens Romains consideraient les
devoirs de famille comme d'une nature trop noble et trop delicate
pour les livrer au controle indiscret des tribunaux et aux debats
d'une procedure publique.

MARRIAGE 189

contemporaneously destroyed the marriage-state and
the manus.1 The dissolution of a coemptive marriage
did not of itself break the manus, and the wife
was entitled to a remancipation.2 Repudiation was
allowable broadly upon any act by the wife which
struck at the root idea of conjugal association.
Unchastity threatened to introduce into the family
under false pretences spurious issue, whose offer-
ings at the house-altar would have outraged the
Lares and Penates. Such conduct was necessarily
ground for repudiation,3 but equally so was the father-
ing upon a paterfamilias of a stranger child, or the
taking of magic potions with the object of procuring
offspring, since so to violate the course of nature
was a grave affront to the gods.4 But repudiation
might also follow upon far lesser lapses, such as im-
modesty of bearing or indulgence in fermented

1 The rites were of a frightful and odious nature (Plut., Q. R.,
50) and evidently designed to discourage frequent repetition.

a Gaius, i, 137.

3 Sterility has been mentioned as a ground for repudiation,
seeing that it defeated the object of the marriage (Coulanges,
Cite" Antique, 52). But a remedy lay to hand in Adoption, a
course which imposed itself when the sterility lay with the hus-
band. The cited case of Carvilius Ruga belongs to an age when
the restrictions of the fas had weakened, and only custom
continued to hold the husband, and the wife not in manu. It is
impossible to suppose that divorce, however seldom, had pre-
viously been unknown.

* The incident of the female " poisoners," narrated by Livy,
viii, 1 8, is probably such a case. At all events the facts are
incredible as described, cf. Ihering, Vorgeschichte, 422.

190 MARRIAGE

liquors. No more heinous crimes were possible to
the Roman materfamilias than incontinence l and
drunkenness2; and so great was the horror they ex-
cited that a woman was expected by her conduct and
demeanour to avoid the suspicion, or even the sug-
gestion, of guilt. A woman, apprehended in the act of
adultery, might, together with her paramour, be forth-
with slain by the wronged husband.3 In all other cir-
cumstances the faithless or intemperate wife was put
upon her trial before the domestic tribunal, and only
upon due conviction suffered the extreme penalty.

The new institution of consensual marriage worked
a slow and silent revolution in the law of divorce.
If we may consider consensual marriage in the light
of a contract at all,4 at the period when it first
emerged into recognition, it was a contract between
the man and woman to live as spouses so long as
both concurred in the desire to continue the cohabita-

1 Cicero, De Rep., iv, 6. Men refused to salute a female relative
of bad character.

2 But we cannot accept Cato's suggestion that the purpose of
the jus osculi was to detect by the smell any recent indulgence in
strong liquor (cf. Aul. Cell., x, 23).

3 Horace, Sat., ii, 7, 61. Cato, apud Cell., x, 23. The first
breach in the privilege was not made until the early Principate.

4 The nature of marriage, regarded as a contract, is discussed
in pp. 46, 47 of Poste's edition of Gaius; Hunter's R. L., 681-2, etc.
But it must not be forgotten that marriage, as an institution, is older
than even the earliest species of contract, Conveyance. Certainly
in the earlier centuries of Rome there can have been no conscious
identification of marriage with any kind of contract. Coemptio was
a clumsy adaptation of civil law, but even with the plebs the true
inwardness of marriage was sought in its religious aspects.

MARRIAGE 191

tion. Children conceived during the union were ex
justis nuptiis and fell under the patria potestas. The
only thing now needed to create marriage, when the
parties were otherwise capable of intermarrying, was
the consent of both parties ; the only thing needed to
dissolve it was the withdrawal of the consent of either
spouse, and both were deemed to be proved by any
act sufficiently demonstrative of the intention. It was
therefore sometimes necessary to decide whether the
circumstances in a given case had or had not actually
operated to constitute a marriage (just or non-just),
and where the question was in doubt the presence
or absence of a dos might serve as the test whether
the union was marriage or concubinage: the law
soon recognized the institution of the dos in con-
nection with matrimonium juris gentium, as well as
just marriage. Cohabitation without the affectio
maritalis was neither matrimonium justum nor juris
gentium, and remained a criminal offence until the
toleration of a latitudinarian society overcame the
scruples of the ancient law, and led to its regulation
under the name of concubinage. The woman who
condescended to an illicit albeit enduring union
had been branded by the ancients with the oppro-
brious epithet of pellex; she now received the
gentler name arnica, and in certain circumstances
concubinage was deemed the only proper associa-
tion.1 But cohabitation during an appreciable period

1 The issue of such unions were not entirely without rights as
against the father. Concubinage, though a lower form of union

192 MARRIAGE

of a man and woman in the same station of life
was usually held conclusive of the affectio maritalis.
Dissolution of a marriage was similarly effected by
manifestation of will. The most unmistakable was re-
marriage with another party, which of itself dissolved
the former union, so that the offence of bigamy was
unknown to the criminal law of Rome.1 A usual

than marriage, was assimilated to it in some respects. Sohm,
Inst, 274, goes the length of describing it as "eine Ehe minderen
Rechts," and Pothier, Traite du Mariage, in vol. iii, 131, says
practically the same. No man could legally have two amicae,
nor a wife and an arnica, at the same time. Ulpian's dictum
(Dig., xxv, 7) "cum honestius sit patrono libertam concubinam
quam matremfamilias habere," illustrates how the moral and social
tone of the Imperial civilization had changed for the worse.

1 Causeless repudiation is said, though on doubtful authority,
to have been penalized in very early times. Statesmen of the late
Republic attempted to check changefulness and caprice by laws
which they themselves too often disregarded; and even the
more strenuous efforts of Christian emperors were but moder-
ately successful. The vagaries of wealthy women, in particular, in
the eighth and ninth centuries of the City must have been extra-
ordinary. Yet we may not accept, as of general application, the
statement that in lieu of the practice of calling the years after the
Consuls, ladies kept count of time by the tally of their divorced
husbands. And some exaggeration may be suspected when a pro-
fessional castigator of society writes :

Imperat ergo viro; sed mox haec regna relinquit,
Permutatque domos, etflammea content; inde
Advolat, et spreti repetit vestigia lecti.
Ornatas paulo ante fores, pendentia linquit
Vela domus, et adhuc virides in limine ramos.
Sic crescit numerus; sic fiunt octo mariti,
Quinque per auctumnos : titulo res digna sepulcri.

(Juvenal, Sat. vi.)

MARRIAGE 193

formula of repudiation began: tua res tibi habetur
("takeaway thy property"), and ended with a demand
for return of the house keys.

We have already seen that under the earlier law
a father could divorce his daughter in potestate
against her own and her husband's will by an action
against the latter for the recovery of her person, a
right which he, of course, lost if manus had been
acquired by usus. Marriage was also dissolved
against the will of both the spouses if either of them
suffered capitis deminutio maxima, losing both citizen-
ship and liberty. If the minutio, being media, en-
tailed only loss of citizen rights, the marriage,
though no longer just, was juris gentium, provided
the affectio maritalis on the man's, and uxoris
animus on the wife's part continued to subsist.

With the weakening of the religious sentiment,
and increase of luxury, there arose among the
men of the comfortable classes a growing unwill-
ingness to incur the responsibilities of matrimony,
which excited among the leaders of the State the
same apprehensions which similar phenomena have
aroused in the modern world. In the last century
of the Republic we find the Censor, Q. Caecilius
Metellus, anticipating the strictures of President
Roosevelt,1 and appealing to the patriotism of his

1 Aul. Gell., Noct. Att., i, 6. Quoniam ita natura tradidit, ut nee
cumjllis (i.e., women) satis commode, nee sine illis ullo modo vivi
possit, saluti perpetuae potius, quam brevi voluptati consulendum.
The composite lex Julia et Papia (about the middle of the eighth

O

194 MARRIAGE

hearers to undertake an admittedly disagreeable
duty. It is significant that neither Metellus nor his
critics ventured to assert that marriage was a de-
sirable object in itself, though some of the latter
thought he spoke truth too boldly.

SOCIAL POSITION OF THE MATERFAMILIAS

Religious nations and trading nations entertain
peculiarly strict notions of wedlock, and the Romans
were both. But underlying this seriousness of view
we may also trace a noble and elevating female
influence. " It is in the interest of the woman that
the law of marriage should be strict, and that mar-

O

riage should be single." l We have already seen
that, in contrast with other racial groups, polygyny
seems never to have been practised to any consider-
able extent among Western Aryans, and certainly
never at all by the Romans. Yet monogamy was
by no means an inevitable result of the association
of the man and woman at the house-altar. Avowedly
the sole purpose of marriage was to perpetuate the

century of the City) annulled or curtailed the right of most " celi-
bate " or childless persons to take as legatees under a will. Any
man between twenty-five and sixty, or woman between twenty and
fifty, for the time being unmarried, was " coelebs," though he or
she might have been married previously. For an instructive list
of laws and ordinances framed with the like object, see Voigt,
R. RG., ii, 48 ff. For the State to bring pressure upon widowers
and widows to make them re-marry would have appeared mon-
strous to Romans of the old school.

1 W. E. Gladstone, Juventus Mundi, p. 406.

MARRIAGE 195

sacra, and where it was thought, as there is some
reason to believe was the case, that the male alone
possessed the faculty of active propagation, a plur-
ality of wives might have appeared in harmony
rather than antagonistic with that end. But the
earnest dignity of the patriarchal house-mother
maintained the old- Aryan notion of the fundamental
equality of the sexes, and disdained to share either
the privileges or the burdens of her estate. The
very impressiveness of the Roman marriage cere-
mony discouraged its multiplication.1 So hallowed
was the nuptial tie/ that the ancient law forbade
the remarriage of flamens and widows. The latter
were afterwards freed from the prohibition, provided
a space of ten, later twelve, months intervened be-
tween the first husband's death and the remarriage,
to prevent confusion of the bloods, turbatio sanguinis.
But the initiation of the woman into successive cults
continued to shock the sense of religious propriety,
and the old-Roman nicety disrelished the presence
of children born of the same mother to different
fathers. A woman's second nuptials were celebrated
without ostentation, as it were shamefacedly, and
lacked most of the solemnly-joyous ceremonial of
her first. No widow or twice-married woman could
be a pronuba. The objections to the remarriage of

1 F. de Coulanges, La Cite Antique, 48. La ceremonie des
noces etait si solonelle et produisait de si graves effets qu'on ne
doit pas etre surpris que ces hommes ne 1'aient crue permise et
possible que pour une seule femme dans chaque maison. Une
telle religion ne pouvait pas admettre la polygamie.

196 MARRIAGE

widowers were less pertinent, as they did not change
cult; yet a bimaritus never became eligible as rex
sacrorum, flamen dialis, or pontifex maximus, and a
flamen whose wife died during the term of his office
was compelled to resign it for lack of an associate.
For the " house of him who has married a wife is
entire and perfect, but his house who once had one
and now has none is not only imperfect but also
disabled." x

Marriage was therefore a highly honourable es-
tate,2 so much so that the privilege was altogether
denied to slaves, whose cohabitation as man and
wife was respected by the masters, and, in later
times, in some degree protected by law,3 but never
attained even to the dignity of matrimonium juris
gentium, however long and faithfully continued. On
the other hand, the vestal virgins, out of regard for
their sacerdotal quality, were co-ordinated with mar-
ried women, and wore the red veil to symbolize, in
their case, devotion to the City altar. The title of

1 Plutarch, Q. R., 50. So, also, children could not actively
assist at the marriage-rite unless both parents had been "justly "
married and were alive. At least, this is the most probable
meaning of patrimi ~et matrimi. The aversion with which the early
Christian church regarded second marriages sprang, of course, from
a different order of ideas. To the pagan Roman, marriage was so
sacred that it was profaned by repetition ; the Christian reluctantly
tolerated one union as a deplorable but necessary concession to
the weakness of the flesh.

2 Nuptiae sunt conjunctio maris et feminae et consortium omnis
vitae, divini et humani juris communicatio. Dig., xxiii, 2, i. Uxor
socia humanae rei atque divinae. Cod., ix, 32, 4.

3 Lecky, i, 304; Cod., v, 3; Dig., xxi, i, 35.

MARRIAGE 197

materfamilias was denied to the wife not in manu,
and in any case it was lost on the husband's death.

Thus the woman of the old- Roman family system
offers, at first sight, the glaring anomaly of a posi-
tion of undoubted dignity and esteem, coupled with
an almost uncontrolled subjection to a house-tyrant.
We have already seen that religion, custom, the
supervision of the gens, and the support of the wife's
cognates tended to check exorbitant abuses of marital
power. But when all allowances are made, that power
remained real and imminent, and even venial wifely
indiscretions might be and were occasionally visited
with almost grotesque severity.1 It is true that the
wife's subjection to the family head was but an inci-
dent of a system which bore equally upon all persons
in potestate. Yet the XII Tables demonstrate con-
clusively that the early Roman law did in practice
differentiate the sexes to the disadvantage of females.
At no period of her life was a woman entirely with-
drawn from male control. Subject in her girlhood
to the potestas, and during coverture to the manus,
a woman on becoming a widow or spinster orphan
was still amenable to tutors, whose authority was

1 See instances mentioned, Valerius Max., vi, 3, 9-12. But
rhetoricians of a lax age, who regard effect more than accuracy,
are prone to exaggerate the rigour of their forebears, and to accept
any anecdote which will colour their text. Pothier, writing under
the Ancien Regime, goes quite as far as the most autocratic of
Roman husbands : La puissance du mari sur la personne de la
femme consiste, par le Droit naturel, dans le droit qu'a le mari
d'exiger d'elle tous les devoirs de soumission qui sont dus a un
superieur (iii, 455). This is not the spirit of the Roman law.

198 MARRIAGE

required to validate every important transaction of
her life.

Nevertheless, the subjection of the woman was
free from any intentional obloquy or abasement.1 We
must distinguish questions of principle from those of
expediency. To the latter belonged the law-assumed
inferiority of women, which, accordingly, disappeared
with the political and social conditions upon which it
was founded. Rome's early politics were so mixed
up with warfare, her very existence so often staked
upon the issue of desperate venture, that the helm
of State perforce remained entrusted exclusively to
the hardier and more actively courageous moiety
of the nation. Nature and the circumstances of the
then world combined to assign the woman to the
domestic sphere. The Roman wife was not, indeed,
condemned to the seclusion of the hareem, or even of
the gynaeconitis. But custom, which denied to her
neither freedom of movement nor the amenities of
social intercourse, withdrew public affairs and most
private business from her orbit of activity, as unbe-
coming the modesty of the sex.2 Except as a vestal,
flaminica, or consort of the pontifex maximus, no
woman could hold a position in the public service.
Midwifery may have been practised by freewomen
at all periods, and in Imperial times princesses
may have employed female secretaries.3 Apparently
teaching as a profession was entirely in the hands
of men; and isolated instances of women who scan-

1 Cf. Gide, Etude, 108, 125, etc. 2 Cf. Dig., Ill, i.

3 Suetonius, Vespasian, iii.

MARRIAGE 199

dalized society by pleading at the Bar are naturally
attributable to a sophisticated age.1

Women's direct influence in public life was there-
fore infinitesimal. Yet it is probably no exaggera-
tion to say that the whole social fabric was moulded
by the forceful character of house-mothers in the
serene atmosphere of the home,2 and that the de-
cline of the State dates from the active intervention
of women in the bustle of public affairs.3 In the
household, the materfamilias barely yielded in dig-
nity to the master, with whom she was associated as
chief priestess for the purposes of the family ritual,
and in whose absence the government of the family
devolved upon her. Though she superintended the
household and kept the keys, her duties did not ex-
tend to services which savoured of the menial.
Spinning was the constant and seemly occupation of
a Roman lady 4 ; it was left to inferiors to dress the

1 Val. Max., viii, 3; Plut., Lycurgus andNuma; Livy, xxxiv, 1-4.

'2 Rossbach, 36. Je waiter wir in das Altertum zuriickgehen,
desto abhangiger ist zwar das Weib vom Manne, aber auch eine
um so wiirdigere Stellung nimmt es in der Familie ein, desto
grosseren Einfluss hat es auf die Gestaltung der gesellschaft-
lichen Verhaltnisse. Dieser Satz muss als ein allgemein giil-
tiger fur den ganzen indogermanischen Stamm aufgestellt werden.

3 Roman women have on occasion displayed a breadth of mind
which politicians might envy. Verginia, a patrician lady of stain-
less reputation, who had espoused a distinguished plebeian, was,
because of her marriage, denied access to the Patrician Women's
Temple of Chastity. She nobly revenged herself by erecting at
her own expense a new Temple for chaste plebeian women, whom
she invited to emulate the virtue of their sisters.

4 Ovid, Fast. ii. (Lucretia) Nebat, ante torum calathi, lanaque
mollis, erant. Wool was constantly worn by the Romans, who

200 MARRIAGE

meat and grind the corn.1 Unworldliness did not
excuse ignorance, and the mother was expected to
educate her children. Their respect remained un-
impaired by the knowledge that the letter of the law
ranked her with themselves, and even subjected
her, as widow, to the tutelage of her own sons.
Swayed by the habit of filial reverence, warriors and
statesmen have been turned from their purpose by
a mother's admonitions.2 Not contempt for sup-
posed defects of character, but solicitude to protect
unworldly habits, and shield from contact with the
rougher sides of life, prompted the political and
contractual disabilities of the early law. The retire-
ment of women from public life was honestatis
privilegium. The levitas animi feminarum is a mis-
description of the jurists.3 There was little levity of
mind among those matrons of ancient Rome, whose
hard-favoured virtue the poets of a gentler civiliza-
tion would pertly ridicule 4 for the amusement of
lady friends who were nothing if not "Graeculae."

introduced the habit into Britain (Tacitus, Agric., c. 21). The
swampy plains of Latium made warm clothing advisable; more-
over, it is thought that the Italian climate was colder than nowa-
days. Silks were not worn in the early Republic.
' Plut, Q. R., 85.

2 For instance, Coriolanus, or (a more authentic case) Gaius
Graccus.

3 See Gaius, i, 144, 190. Cicero, pro Mur. 12, speaks of in-
firmitas consilii; Ulpian, xi, i, et propter sexus infirmitatem et
propter forensium rerum ignorantiam.

* For instance, Ovid, Amores, i, 8. Forsitan immundae, Tatio
regnante, Sabinae noluerint habiles pluribus esse viris. Or again,
ii, 4, Aspera si visa est, rigidasque imitata Sabinas.

MARRIAGE 201

Speaking broadly, and admitting the possibility
of not unimportant exceptions, it may be said with
some confidence that the standard of any nation's
civilization is determinable by the degree of esteem
in which it holds its womankind. But though this be
conceded, the generalization is of small value where
the degree of esteem is sought to be ascertained by
bringing modern habits of thought to bear upon a
radically different perception of life and its problems.
Certainly the state of the law regarding women at
any given period is less apt to instruct than to mis-
guide. It will not, I think, be asserted that English-
women of the early Victorian period, for instance,
stood in slighter personal regard with men than
since the passage of the Married Women's Property
Acts. Whatever be the state of the law, when sal-
vation hangs upon the numbers, and the physical
and mental vigour of its citizens, no enlightened
community will depreciate its women. The proud
acceptance of wifehood and motherhood was the
glory and reward of the Roman matron. In the
heyday of manus and tutela she may have com-
manded a deeper respect than at the end of her suc-
cessful struggle for emancipation, when women as-
pired to elegance without usefulness, substituting a
voluntary and genuine self-abandonment for the
fictitious abjection of the law.1

1 Gide, Etude, 147. Les progres de la corruption dans Rome
ont ete plus rapides chez les femmes que chez les hommes: les
Bacchanales ont precede de plus d'un siecle la conjuration de
Catilina.

CHAPTER XI

PATRIA POTESTAS

THE constitution of the primitive patriarchal
group had its roots in the remotest epochs; and
its earliest stages are but dimly surmised, though
its later developments may be followed with toler-
able confidence. Originally the patriarch's ascend-
ancy over his kinsmen, as over his slaves, can
scarcely have rested in the last resort upon other
sanction than brute force, and, unless voluntarily
surrendered, authority and life itself were liable to
violent termination by the same agency when
physical decay set in. Various causes, but above all
the reverence begotten of ancestor-worship, in the
course of ages softened and moulded manners to the
elder's advantage. On the other hand, the subtle
influence of a humanizing cult by slow gradations
transformed the group-tyrant into a true father, and
intensified a sentiment of solidarity, and interdepend-
ence which became accustomed to behold in the
head less the ruthless master and oppressor than the
responsible Administrator and just Judge. And the
limitations followed the power when the gentes be-
gan to fall asunder, and each eldest ancestor grad-

202

PATRIA POTESTAS 203

ually assumed to himself exclusive authority over
the persons of his descendants, leaving to the head
of the gens (or a committee of its seniors) a few
disciplinary powers, the care of the gentile sacra,
and the representation of the group towards other
groups, and, latterly for a time, the State.

It has already been pointed out that by the time
Rome had become consolidated into a State there
was no longer any effective head of the gens. The
civil unit of the State was the Agnatic Family, or
group of related individuals under the headship of
the living common ancestor. Agnation, or relation-
ship (natural or adoptive) through males, was, gener-
ally speaking, the sole relationship recognized by the
early civil law. Agnates were all individuals subject
for the time being to the same patria potestas, or
who would have been so subject were the common
ancestor alive. Brothers and sisters, with their
uncles, aunts, nephews, nieces, and other collaterals,
not having been received by adoption or marriage
into another family, if related through males, were
each other's agnates, whether patrician or plebeian.
Gentiles, the patrician members of the same gens,
were each other's agnates ; towards their clients they
were gentiles only, since no agnation was possible
between patron and client. Agnation (where not
artificially created, as by marriage, adoption, or ar-
rogation) presupposed cognation, or natural rela-
tionship by blood ; cognates who were not agnates
(as the sons of one mother by different husbands)

204 PATRIA POTESTAS

were not civilly related, for they had no common
family altar. But cognation was effective as a bar
to marriage within the prohibited degrees, and was
recognized by the custom of summoning all the
blood relatives of the inculpated wife to witness
the trial of their kinswoman before the domestic
tribunal.1

The strictly agnatic character of the Roman family
was a consequence and a necessity of its internal con-
stitution. Civilly, the State knew only patresfamilias
and those (if any)2 subject to their power. It would
have been subversive of the principles upon which
society was built to subject the same individual to
two different powers at the same time, and, accord-
ingly, a female remained only so long under the
power of her ancestor as she had not by marriage
entered another family, and come under the power
of the new paterfamilias, who might or might not
be her own husband. Such females were deemed
to have entirely renounced their natural family;
the release from the power under which they had
hitherto lived was as complete as their subjection to
the newly-acquired allegiance, under which their
children and descendants likewise fell. Thus the
family constantly absorbed within itself the wives
introduced by its males. Descent, therefore, was

1 Extenuating circumstances could be pleaded on her behalf.
In public trials the only defence was Not guilty.

2 Unmarried males and childless husbands, if sui juris, were
also in law patresfamilias.

PATRIA POTESTAS 205

never traced through females. Mulier familiae suae
et caput et finis est. (Ulpian.)

The vitality of patria potestas was probably due
to the fact that it responded to the temper and needs
of the early City. Even if stripped of its religious
element, the Roman Agnatic Family would still
appear a military and political necessity. The Home
afforded, and the Camp emphasized, the teaching of
discipline and obedience; and within the City walls
the responsibility of a family Head for those under
him was a better guarantee of order than our own
Frank-pledge or Ten men's tale. As the continuance
of the system appeared to correspond with, so its
chief limitations were dictated by, considerations of
public efficiency. It formed no part of the jus pub-
licum. In the seclusion of the family the chief was
supreme; in field and forum father and son exercised
their civic privileges, or discharged their duties to
the State, upon a footing of equality. As citizen,
the son voted if he listed contrary to his ancestor
in the Comitia.1 As military officer, he commanded,
and where necessary punished, the soldiers com-
mitted to his leadership, including perchance his

1 I know no sufficient reason why male adult citizens in potestate
should not have voted in the comitia curiata; and the centuries, as
originally constituted, would naturally comprehend them, unless
they were specially excluded for legislative purposes. The fact
that the amount of his property determined the century of each
citizen, and that sons in potestate owned none, is not cogent, if
we keep in view the original conception of property as belonging
to a group rather than to an individual.

206 PATRIA POTESTAS

own father. As magistrate he might give judg-
ment in a suit to which his father was a party, and
even sit in criminal jurisdiction over him.

As employed by classical writers, the word familia
has various significations : (i) Usually it denotes the
Agnatic Family or group of free persons in the
potestas of a living male Ancestor; or (2) such Ag-
natic Family, plus slaves and persons loco servorum,
and clients attached to the family. In a wide sense
(3) familia may include every human being and every
movable and immovable for the time being under
the power or dominion of a citizen sui juris, together
with all rights of action acquired by himself directly
or through his dependants. But familia is also used
to denote (4) only the slaves of a household, or
(5) generally the objects of dominium, as land and
slaves or other chattels, as distinct, for instance,
from objects of potestas, as children. (6) Some-
times the last signification is narrowed by contra-
distinguishing familia and pecunia; in this sense
familia would mean that part of the family estate
which in early times was expected to remain per-
manently in the family possession, as the ancestral
habitation, the land appurtenant to it and the slaves
and animals necessary for cultivation; whilst pecunia
denoted those objects of property, such as grazing
herds (pecus), which were regarded as eminently
merchantable and constantly changing. (7) Occa-
sionally familia is synonymous with gens, or (8) a
branch or stirps of a gens.

PATRIA POTESTAS 207

In Rome, private law regarded the familia, both
persons and things, as a mere appendage of the
paterfamilias. A flliusfamilias was not, indeed, dis-
abled from performing certain acts capable of pro-
ducing legal effects. He had connubium, and could
contract just marriage, though his wife and offspring
fell under the power of the ancestor. He had also
commercium and could validly take by mancipation,
though the property thus acquired vested in the
ancestor. He had testamentifactio to the extent that
he could be witness to a will, libripens or even familiae
emptor; though he could make no will himself, since
he had no property within his disposition, and was
unable even to dispose of his future interest in the
patrimony. If he took under a will as heir1 or legatee,
the succession or legacy vested in the ancestor.
Originally he could not sue or be sued, and although
the practice of a more enlightened age enabled him
if necessary to bring an action in his own name,
when he had suffered such injury as seemed to cast
a slur upon his honour, it was again to the ancestor
that pecuniary damages were payable. He could not
incur a debt, or other contractual obligation, for
failure to satisfy it would, under the early law, have
involved bondage to the creditor, depriving the an-
cestor of his dependant's services. Thus he could
by his acts improve the condition of his ancestor;

1 The Roman instituted heir was of course a very different
person from the heir of English law. He united, among other
qualities, those of the English executor and residuary legatee.

208 PATRIA POTESTAS

he could not worsen it, save in the case of delict in-
volving his surrender to an injured party, as to which
I shall have more to say later.

The denial of proprietary rights to the citizen for
perhaps the greater part of his life was not conson-
ant with the character of a progressive and trading
community, and custom mitigated the harshness of a
deprivation in which the first formal breach was not
made by the law until after the dissolution of the
Republic.1 It was usual — no doubt from very early
times — fora father to set aside portions of his stock,
and assign them to the exclusive control and use
of his grown-up and married sons. In primitive
Roman society wealth most usually took the form of
cattle (pecus), and the son enjoyed his quasi-property
under the name of peculium.

The authority of the Roman paterfamilias was
exercisable in five different forms:

i Under Augustus, filiusfamilias became the absolute master of
what he had acquired through military service (peculium cas-
trense). Analogous rights, though not, until Justinian, quite so
far-reaching, were subsequently conferred upon officers of the
palace, and later upon certain other functionaries, persons in the
liberal professions, and ecclesiastical dignitaries, over their emolu-
ments or earnings (peculium quasi-castrense). Another kind of
peculium, called adventitium, which was introduced under Con-
stantine, consisted of everything received by a filiusfamilias from
his mother at her death, and of this the father had the usufruct
only. Under subsequent Emperors the scope of the peculium
adventitium was gradually extended until, under Justinian, it
included every kind of property (other than castrense and quasi-
castrense peculium) which had not been derived from the paternal
estate.

PATRIA POTESTAS 209

1. Marital power, of the Hand, manus, over his
own wife;

2. Parental power, patria potestas, over his un-
married female descendants,1 his male descendants,
married or not, and their wives; 2

3. Mancipium, or temporary power over free per-
sons not being kinsmen by birth or adoption ;

4. Dominica potestas, or power over slaves;

5. Dominium, or ownership over cattle, land,3 and
all other non-human property, animate and inanimate.

The earliest Romans, indeed, cannot have scien-
tifically appreciated the distinctions implied in this
enumeration. " Manus," afterwards employed to
denote only the power over a wife, had originally
served to sum up the totality of authority as hus-
band, father, master, and (using the expression very
loosely) proprietor. The family head, anciently
called herus, was, as the name indicated, monarch
of his little kingdom. Even in much later times the
control of paterfamilias over his cattle is, in theory,
hardly more complete and far-reaching than over
his slaves, or his children and children's children.
He is entitled to enjoy and turn to account the
services of all. Until well into Imperial times his
proprietary right is carried out to its logical con-
clusion in the jus (in early law, potestas) vitae ac

1 If not in manu, married female descendants would also
remain under the patria potestas.

2 Married with manus.

3 Land originally vested in the gens, and could not be freely
disposed of like movables.

P

210 PATRIA POTESTAS

necis. Having the power of life and death, he has
complete control and disposition over their living
persons for purposes of profit or chastisement. The
XII Tables contain the statutory confirmation of
his right to imprison, scourge, keep to agricultural
labour in chains, sell and slay his children, and this
even though they might hold high office of State.
It is true that the law did not permit a Roman
citizen to be divested of his freedom in his own
country, unless he had forfeited it by crime, and,
therefore, free persons in potestate could only be
sold as slaves beyond the Roman territorial bound-
aries ; l but this restraint appears to have been
prompted by considerations first of religion and
then of public policy, rather than any desire to
limit the patria potestas.

Nevertheless, though unexpressed and unexpress-
ible by the simple terminology of archaic ages,
religion had long guided the Aryan instinct to differ-
entiate between rights of Persons and rights of
Things. The Roman paterfamilias derived his
authority over man, and over beast and chattel, from
two distinct sources : the sacred law of ages im-
memorial, and the law which resulted from the per-
manent attachment of tribal communities to the soil,

1 Cod., viii, 46, 10. Libertati a majoribus tantum impensum
erat, ut patribus, quibus jus vitae in liberos necisque potestas
olim erat permissa, eripere libertatem nori liceret. But this only
held good within Rome itself. That the paterfamilias could send
his son into a foreign country as a slave appears indubitable.
Cf. Cicero, De Oratore, i, 40, 181.

PATRIA POTESTAS 211

the rise of settled polities and increasing inter-com-
munication of their citizens. The latter law, indeed,
at first claimed to be sacred also. But it was visibly
moulded by human intellect, or at least by human
agency acting upon alleged divine inspiration, and
it was enforced not by an outraged Ancestor but by
a King or Consul, whom the citizens themselves had
elected. The human or temporal aspect of the law
of the City constantly asserted and distinguished
itself from the spiritual law of the pre-Roman family.
Closely considered, the dual capacity of the Roman
father, as Family Head and Master of the House, is
still discernible in historic times. His authority as
the former, however liable to abuse, was not, ac-
cording to prevailing notions, absolute, but rather
subject to conventions ] which, apart from their
divine sanction, received materiality from the voice
of kinsmen in family council. By virtue of the fas,
backed by the sentiment of the family and by public
opinion generally, the paterfamilias was the trustee
rather than the arbiter of his kinsmen dependants.
But all early Trusts, by whatever name they may be
known, are binding only upon the conscience, and
unenforceable at law. The earliest law of the Roman
State was itself chiefly founded upon religious prac-
tices, but the State interfered with great reluctance

1 Patria potestas in pietate debet, non atrocitate consistere,
Dig., xlviii, 9, 5. The father whom Hadrian punished could
surely plead intolerable provocation, but the killing of the son was
irregular: latronis magis quam patris jure eum interfecit.

212 PATRIA POTESTAS

in internal matters pertaining to the family cult, and
patria potestas was of the very essence and the main-
stay of the latter. Only some of the more atrocious
excesses were checked by the State, ostensibly on
religious grounds, in reality because they were con-
trary to public policy. There was no public tribunal
to protect a son against the harshest of fathers. No
person under power could sue in his own name for
any cause soever, and far from possessing a right to
own separate property, children, however mature
their years, as we have seen, were themselves, in
the City law, virtually the property of their eldest
living ancestor.

It is desirable for the better understanding of
primitive Roman society to keep in view this double
character of the paterfamilias as head of the family
and master (dominus) of the house. In leaving wife
and child at the mercy of their lord, the policy of
the State was not deliberately to deny to all minors
the elementary rights of human beings. But in the
earliest ages the Roman consistently shrank from
curtailing by any compulsitor of law an authority
with which every fibre of his intellectual being was
intertwined. Moreover, the machinery of archaic
government, working slowly and clumsily, is the more
effective the less frequently it is set in motion. The
law of primitive societies is often extremely tech-
nical, but usually Procedure has nearly monopolized
the legislator's attention. Substantive law must con-
tent itself with a few principles of sweeping applica-

PATRIA POTESTAS 213

tion : it is impatient of distinctions and qualifications.
And among men emerging from barbarism it cannot,
without challenging resistance and jeopardizing the
existence of the State, attempt to enforce artificial
rules of conduct not sanctioned by a prevalent
superstition.

The State therefore tolerated the merger of the
individual in the group, for the purposes of the
private law, because it was not yet prepared to
substitute its own authority for the time-consecrated
authority of the ancestor, and because it trusted to
other forces than that of the law for good adminis-
tration within the home. Considering how decisively
the immigrant elements influenced the career of the
City in many directions, it might have been expected
that the plebeians, most of whom had no distin-
guished family connections to boast of, would soon
have undermined the foundations of the patria po-
testas. In reality, they seem upon the whole to
have aided in its preservation, since we know that
the father's power, though it naturally declined in
the course of ages, remained to the last strictest in
Rome, a proof that the patrician spirit of conserva-
tism, when non-political, was not uncongenial to the
commoners.1

1 Ferrero (Greatness and Decline of Rome, p. 5) says : " Ancient
Roman society may perhaps fitly be compared to life in one
of the monastic orders in the Middle Ages. Both systems dis-
play the same methodical combination of example and precept,
of mutual vigilance and unremitting discipline. Both show us

2i4 PATRIA POTESTAS

Imperfect human nature will occasionally disre-
gard dictates of religion and precepts of law, and
in large communities the ultimate safeguard of
all good government lies in the power and will
of the governed to revolt when tyranny reaches a
certain point. But in the miniature Roman family-
kingdom, natural affection1 and the influence of

a community in which the individual is entirely at the mercy of
the feelings and opinions of his fellows, and where it is impossible
for him to become emancipated from the tyranny of the group.
Both succeeded in drawing out from their numbers, in the narrow
sphere allotted to their labours, an energy, a devotion, and a self-
control far greater than could be expected from anyone of them
in his individual capacity. In early Rome everything conspired
to maintain and increase among the upper classes the influence of
this powerful and minutely organized system. We find it in the
distribution of wealth, in religion, in the public institutions, in the
severity of the legal code: we find it in a public opinion which
demanded a relentless exercise of authority by fathers against
their children, or by husbands against their wives. We find it
above all in the family, which gave the earliest and most deep-felt
lessons in this stern and difficult discipline of the spirit. ... It
was the family which taught even the richer Roman, from the
days of his youth, to be content with small enjoyments, to keep
pride and vanity in check, to own submission, not to another man
like himself — for monarchy he abhorred with a fanatical loathing
— but to the impersonal authority of law and custom." Perhaps
there is a tendency to exaggerate the early Roman austerity. At
least we know that public opinion did not always support father
against child (cf. Livy, vii, 4).

1 Mr. Gladstone, in Juventus Mundi, 396-7, says : " The point
in which the ethical tone of the heroic age stands highest of all is,
perhaps, the strength of the domestic affections." " Perhaps even
beyond other cases of domestic relation, the natural sentiment, as
between parents and children, was profoundly ingrained in the

PATRIA POTESTAS 215

daily personal contact, impossible between a terri-
torial ruler and the generality of his subjects, supple-
mented by religion, habit, and the family council,
appear to have sufficed to render the family tie
tolerable to the early Romans, though later ages
considerably relaxed it.

A further powerful check to family misrule arose
incidentally at an early period in the institution of the
censura, a creation of law originally exercised by
King or Consul, and subsequently made a distinct
office of State. It is in so far related with our modern
notion of the census, as one of its objects was the
careful enumeration of the citizens, though chiefly
with regard to their right (and duty) to serve in the
army and vote in the comitia. But the Censor exer-
cised another less positive but indirectly perhaps
more influential jurisdiction, the regimen morum. He
watched over the morals of the citizens, investigated
cases of misconduct, and visited with graduated
marks of censure (notae censuriae), in grave cases
with expulsion from Senate or Comitium, delin-
quencies which could not be reached by the arm of
the law.1 Although the lighter reproofs of the Censor

morality of the heroic age." Though the period alluded to is
prior even to earliest Rome, the words are not inapplicable to the
latter.

1 Cuq, Inst. jurid. des Romains, p. u. L'observation des de-
voirs qui en resultent [from fas and mos] n'a d'autre sanction que
la colere des dieux ou la crainte de 1'opinion publique, parfois
une peine religieuse, et, a partir d'une certaine epoque, le blame
du censeur.

2i6 PATRIA POTESTAS

were of moral effect only, they were always dreaded,
and exercised a salutary influence over the conduct
of a too arbitrary or an unconscientious paterfamilias.

CREATION AND EXTINCTION OF PATRIA POTESTAS

Patria potestas could be acquired or lost naturally,
by events happening in the ordinary course of nature;
voluntarily, by acts done by a paterfamilias, with or
without the concurrence of the person in potestate,
having that object in view; and it could be lost
adventitiously, by acts done or suffered by a pater-
familias, or person in potestate, not having such
object in view. The other kinds of power over free
persons were Manus and Mancipium. The former
has been dealt with in the chapter on Marriage;
mancipium is incidentally considered below so far
as is necessary for our purpose.

Loss or Gain of Patria Potestas in the Course
of Nature

i. The death of a paterfamilias operated to trans-
mit his power to his sons, ex justis nuptiis or
adopted, each of whom was henceforward pater-
familias over his own descendants and acquired in
his own right such portion of the parent's property
as he inherited, or took under the latter's will when
the power of testamentary disposition had become
established. One family thus might split up into

PATRIA POTESTAS 217

several, but all the members remained agnatically
related to each other through their whilom common
subjection to the deceased.

2. The birth of offspring conferred patria po-
testas upon the father, if himself paterfamilias; if
not, upon the ancestor having power over him.
This, however, was subject to the following con-
ditions :

(a) The marriage itself must be matrimonium
justum. If this condition were satisfied it was im-
material that the wife was not in manu, as although
the latter remained either sui juris or in potestate of
her own ancestor, her children were nevertheless in
potestate of their father or eldest male paternal
ancestor. All children conceived out of wedlock, or
the offspring of some form of marriage not recognized
in Roman civil law, were born sui juris. The law
gave the father no power over them, and the mother
was incapacitated by her sex from exercising it.
This was the case, for instance, with the children of
unions between patricians and plebeians before the
lex Canuleia. Plebeian citizens could, of course,
always contract just marriage with each other. Be-
fore they had conquered full political rights, plebeians
cannot have been held, in strict law, capable of ac-
quiring patria potestas, which was the prerogative
of a Roman citizen, but it is to be assumed that
custom remedied the law's deficiency.

(6) The child must have been conceived during
the marriage. For this reason the legitimacy of

218 PATRIA POTESTAS

children born before the one hundred and eighty-
second day after the marriage was assailable.

Although conception during the marriage was ne-
cessary, actual birth was not, provided it happened
within ten months of the dissolution of the marriage.
In the latter case, the father's ancestor, if living,
would have power over the child. If there were no
living ancestor, the child was under no power, and
thus himself paterfamilias. A posthumous child,
whose father had been a paterfamilias, did not enter
the family, and was consequently unable to inherit.
This injustice was afterwards removed by the inter-
preters of the XII Tables.

(c] The child lawfully born under the above con-
ditions must be formally recognized by the family
chief, at whose feet the babe was laid. The act of
recognition was marked by his raising the child in
his arms (tollere, suscipere).

(d) It then only remained to associate the child
with the family sacra by the ceremony of purifica-
tion (lustratio), involving a sacrifice to the family
gods. A name was given to the child, if a boy on
the ninth, if a girl on the eighth day after the birth.

A Roman citizen intermarrying justly with a
foreigner (peregrina), with whom he had connubium,
acquired potestas over issue begotten of the marriage.
If married cum manu, the wife came under the Hand
and became herself a Roman citizen;1 if sine- manu,

1 Karlowa, Rom. Rechtsges., ii, 70; but contra, Muirhead,
R. L., 108.

PATRIA POTESTAS 219

the children still fell under the potestas, but the wife
became neither a citizen nor her husband's or child-
ren's agnate. If a Roman woman justly married a
peregrinus, he did not acquire manus at Roman law,
but only such rights as his own State gave him.
Children born of just marriage followed the condition
of the father and, in the case last noted, would be
foreigners. If born of marriage jure gentium, or
any other lower intercourse, they followed the con-
dition of the mother;1 until, in the sixth century of
the City, through the operation of a special law (the
lex Mensia or Minicia) children born of a Roman
woman who had condescended to a lower form of
marriage with a foreigner, were made to follow the
status of the "inferior" parent (deterioris parentis
conditionem sequi jussit 2).

Voluntary Acquirement or Surrender of Pair ia
Potestas

i. Adrogatio*. The primary care of the Roman
citizen was to perpetuate his family. The horror of
dying and leaving no one whose duty it would be to
perform the religious offices due from the living to
the dead was ingrained in the Roman character, and
known to many other ancient, as well as modern
nations.3 But Rome did not recognize the practice
of begetting successors vicariously by calling in a

1 Dig., i, 5, 24; Gaius, i, 76 ff. 2 Ulpian, v, 8.

3 Czylharz, Lehrbuch der Institutionen, 239. " Der Grundge-
danke der adoptio ist bei den verschiedensten Volkern ein sacraler."

220 PATRIA POTESTAS

kinsman or stranger to cohabit with a wife, or by
" appointing " a daughter to bear a " son " to her
father, or by marriage of the widow with the kins-
man of a husband who had died childless, devices
common to other Aryan and non-Aryan races.1
Before testamentary dispositions became usual, a
childless man commonly supplied the want by adopt-
ing some young relative, or, failing that, a stranger
as his son. If the person adopted were himself
paterfamilias, the transaction was called Adrogatio,
from having been originally 2 carried out by rogatio
populi in comitiis calatis.

To guard against loss of the family sacra of the
adrogatus, the pontifices had first to be satisfied
that there were others to continue them. They then
convened the comitia, which sat pro collegio, under
the presidency of the pontifex maximus acting as
rogator. He asked the adrogator : an velit eum, quern
adoptaturus sit, justum filium sibi esse. On an
affirmative reply, the question was put to the adro-
gandus: an id fieri patiatur. The rogatio was then
made to the people in the following terms: Velitis,
jubeatis uti L. Valerius L. Titio tarn jure legeque
filius sibi siet, quamsi ex eo patre matreque familias
ejus natus esset, utique ei vitae necisque potestas
siet, uti patri endo filio est, haec ita, uti dixi, ita vos,

1 Cf. Maine, Early Law and Custom, 100 ff.

2 Adrogation by will, if it existed at all before the second cen-
tury B.C., must have been very rare. Caius Octavius (Augustus)
was so adrogated by Julius Caesar.

PATRIA POTESTAS 221

Quirites, rogo.1 The question was then put to the
vote. All the property of the adrogatus went to his
new paterfamilias, into whose power his children (if
any) likewise came nepotum loco. For his and their
torts the paterfamilias became henceforward noxally
liable, but the personal debts of the adrogatus lapsed
through the capitis deminutio, until the Praetor gave
equitable relief to creditors.

The object of adoption, viz., the perpetuation of a
particular family, was kept in view much more closely
in adrogation than in the adoption of a person already
in potestate, and therefore during the Republic and
early Principate:

(a) Females were never adrogated, for they could
not continue a family;2

(6) Only one person could be adrogated by the
same adrogator;

(c] The adrogator must be at least sixty years
old, i.e., at an age when the birth of a natural heir
had become improbable.

Moreover, under the old law, impuberes, when
sui juris, could not be adrogated, for they had not
the free disposal of their caput.

2. Adoption in its narrower sense, i.e., of persons

1 Aul. Gell., N. A., v, 19. A declaration by the adrogatus that
he renounced the sacral association of his old family (sacrorum
detestatio) was also made at some stage of the proceedings. It
was an immemorial rule that no person could be deprived of the
position of paterfamilias against his will.

' Apart from this reason, females were ineligible for adrogation
on the ground that they had not the comitiorum communio.

222 PATRIA POTESTAS

alien! juris, was accomplished in one of the following
modes:

(a) It is highly probable that originally the adop-
tion of a person already in potestate could be effected
comitiis calatis by a ceremony similar to that of ad-
rogation. This method fell into desuetude as soon
as jurists had invented, with the aid of the XII
Tables,

(6) Datio in adoptionem. It was now possible by
mancipation to withdraw the whole transaction from
the control of pontifices and comitia, and make it a
purely private bargain. The consent of the adopt-
andus was apparently at first not required, and there
was no limitation of the number of persons who
could be adopted.

It is here the place to consider Mancipation
(mancipium) in connection with the device by which
adoption was effected by a fictitious sale on the part
of the natural father of the adoptandus.

For the purpose of bargain and sale all alienable
property belonged to one of two classes,1 res man-
cipi and res nee mancipi. The former comprised,
and the latter excluded, all property which, to a
citizen of the earlier times, would appear most essen-
tial to the subsistence, comfort, and dignity of a
family: beasts of draught and burden, such as plough-
oxen and horses, lands and houses (included in the
familia when they became alienable), with appur-

1 A distinction which, though in increasingly attenuated form,
survived until Justinian.

PATRIA POTESTAS 223

tenances and servitudes, and slaves. Whilst res nee
mancipi were transferable by mere tradition, res
mancipi in quiritarian right could pass only by sur-
render in court (in jure cessio), or by mancipium,
by means of the ceremony of the copper and the
scales (per aes et libram).

The legal distinction between res mancipi and nee
mancipi is probably no more recent than the time of
Servius, or whichever legislator first regulated the
practice of Mancipation. Doubtlessly the latter was
of high antiquity, however, and referable to an age
when separate property in immovables was unknown,
and the only commodities were things (chiefly slaves
and animals) which could be grasped with the hand.1
Originally, therefore, mancipation could suitably be
applied to all things capable of being merchanted,
which in time came to include immovables, and no
doubt habitually took place in large transactions,
because, when performed before witnesses, it was a
convenient mode of securing notoriety to the bar-
gain, and fixing in the memory of disinterested
parties the fact that the purchaser had lawfully ac-
quired possession, and the liability of the vendor to
be vouched to warranty in respect of the title. For
the purposes of the census, when it became of im-
portance to ascertain with some precision the private

1 Muirhead, R. L., 59-60, derives mancipium from manum
capere (to acquire dominion or ownership) rather than manu
capere (to grasp with the hand). But this is by no means con-
clusive, and the procedure forms in real actions are scarcely
explainable except on the more generally received theory.

224 PATRIA POTESTAS

fortune of each citizen, an enactment attributed to
Servius Tullius demanded the use of the copper and
scales, the presence of witnesses, and the utterance
of set forms of speech, whenever there was a transfer
of property in those objects which, in the then esti-
mation, were of the highest importance. Subse-
quently, it appears to have been assumed at Rome
that those objects alone were capable of mancipation.
Mancipation had probably had its vogue through-
out Italy during the period when trade among the
recently-settled communities had developed beyond
the stage where cattle formed the sole or predomin-
ant currency, whilst coined money still remained an
unknown or exceptional medium of exchange. Dur-
ing that period, raw copper and, later, rough ingots
of the same metal, sometimes guaranteed by a
Government stamp, provided a general and com-
paratively convenient standard of value. The price
was accordingly not counted, but weighed out to the
seller.1 After the use of coined money had become
general, the weighing of the purchase price was
represented by striking the scales with a single coin
symbolizing the price, and handing it to the seller.
Even in earlier times the purchase price, when large,
must have been frequently weighed beforehand, and
the ceremony of weighing before witnesses merely

1 I know no reason for supposing that mancipation was con-
fined to Rome or Europe, though the legal incidents would of
course differ. The weighing of the purchase price and the pre-
sence of witnesses would suggest themselves anywhere under
similar circumstances. Cf. Genesis, xxiii, 16; Jeremiah, xxxii, 9 ff.

PATRIA POTESTAS 225

denoted by touching the scales with a piece of
metal.

We have already seen that paterfamilias could
not at his discretion wholly divest himself of au-
thority over his child. The law of the City, in-
deed, repudiated any general duty to protect child
against parent, and .sanctioned duly solemnized bar-
gains disposing of the former's person.1 But reli-
gion, safeguarded by the pontiffs and the domestic
tribunal, forbade the arbitrary extinction of a child's
birthright, and heinous crime against his kin would
alone justify the permanent exclusion of the offender
from the family sacra. By the copper and the scales
a child could be transferred like a commodity to a
strange master, but the new relationship was civil,
not sacral. For religious purposes he was still a
member of his father's, not of his master's, family. If
by any means he became released from his bondage,
his natural ancestor resumed the full potestas over
him, and until 303 urbis this might happen again
and again. But whether to confirm an already exist-
ing custom, or to introduce a new principle of law,
the XII Tables enacted that if a father sold his son
three times the son should be free from the father

1 It is doubtful whether by the law of the City a man might
mancipate his wife or daughter-in-law in manu, and such trans-
actions are said to have been prohibited in regal times. Even
without any express prohibition it must have constituted a
hideous violation of the fas, and have been visited accordingly. It is
possible, also, that a father was immemorially unable to mancipate
a married son, or any child born of confarreate marriage.

Q

226 PATRIA POTESTAS

(si pater filium ter venum duit, films a patre liber
esto). The precise object of this enactment is ob-
scure. Sales by fathers of their children were not
uncommon where the parents were poor, and the
decemviri may have had it in their minds to punish
an unnatural father who cared for his son only as a
source of commercial profit.1 Having regard, how-
ever, to the general trend of the decemviral legisla-
tion, it is not improbable that the enactment was
meant to serve merely the object which it purported
to intend, namely, to permit the irrevocable destruc-
tion, after the deliberation necessitated by a three-
fold transaction, of the hitherto indissoluble bond of
union between father and son. The ancient authority
of family sacral institutions had by this time become
seriously impaired, and it may be assumed that the
procedure indicated by the secular law now for the
first time enabled the connection between Ancestor
and Descendant to be entirely severed by the sole
volition of the former.

As no freeman could be sold for a slave in Rome,

1 "Venumduit" is generally rendered "sold." Cuq is of
opinion that " hired out " is more correct, that the mancipation of
a son (contrary to the ordinary rule of property transferred by the
copper and the scales) was ad tempus only, and that the term of
hiring came to an end with each lustrum. The object of the
enactment was to allow the father to exploit his son's marketable
services for a maximum term of fifteen years and no more. In
support of this theory it is plausibly urged that if the sale were
out and out the enactment would be mostly inoperative, and there-
fore meaningless.

PATRIA POTESTAS 227

a free person in mancipio was not servus but servi
loco. We have already seen that the bondage was
probably not indefinite, and the bondsman only suf-
fered capitis deminutio minima (not maxima, as with
slavery, nor media, which entailed the loss of civic
rights), but in most other essentials the incidents
of his position followed the law relating to slaves.
He was not agnatically related with the children of
his dominus, and far from sharing in the inheritance
on the latter's death, he was himself part of the
estate, and became the property of the heirs for the
residue of the term of his servitude. A legacy left
to him, like one left to a slave, was valid only if at
the same time he were manumitted by testament.
Like the slave he could also be manumitted vin-
dicta by a fictitious action claiming that he was in
reality free; or, since the institution of the census,
by his master acquiescing in the enrolment of his
name as a free citizen. The restrictions subse-
quently imposed upon the manumission of slaves by
the leges Aelia Sentia and Fufia Caninia did not
apply to him.

If a person in mancipio had children born to him,
they fell with him into his father's power upon his
manumission, provided of course that (subsequently
to the XII Tables) he had not been mancipated
three times.

When the ancestor's right to divest himself of the
whole of the potestas had become established, resort
to the comitia, where the adoption of a child in

228 PATRIA POTESTAS

potestate was in question, became unusual, and the
object was accomplished by the means furnished
by the XII Tables. A father having arranged for
the adoption of his son would mancipate him in the
first instance to a friend. The friend immediately
manumitted the son, who relapsed under the father's
potestas. Second sale and second manumission, and
then a third sale followed, when the father's power
was destroyed, the son remaining in mancipio of the
friend. The adopter now appeared upon the scene
as plaintiff in a fictitious lawsuit, in which (as with
our old English Recoveries) judge, litigants, and
onlookers joined in a solemn farce. The adopter
claimed the son as his own from the friend by the
formula: Aio hunc hominem ex jure Quiritium filium
meum esse. The friend admitted that he had no an-
swer to the claim, whereupon the son was awarded
(addictus) to the adopter, under whose potestas he
thenceforward remained. By adding one stage to
the transaction the co-operation of a friend could be
dispensed with. The son would be mancipated each
time to the adoptive father. The latter, after the third
mancipation (which destroyed the patria potestas),
remancipated the adoptandus to the natural father,
who, instead of a friend, became the defendant in
the fictitious action which was thereupon brought.

A plebeian might by adrogation or adoption enter
a patrician family and acquire gentilitas. Conversely,
there appears to have been no legal hindrance to
the adrogation or adoption of a patrician by a pie-

PATRIA POTESTAS 229

beian.1 But in the earlier ages both events would be
regarded with disfavour. Particularly the passing
from a patrician to a plebeian family would be dis-
tasteful to old-patrician notions, and the pontiffs
would, save in very special cases, refuse their con-
currence, where such concurrence was necessary.
During the latter half of the Republic, however,
translations from the higher to the lower order
became more frequent, as a convenient mode of
rendering the scion of a patrician house eligible for
the tribunate.

In addition to subserving the purposes of an
adoption, the transaction creating the relation of
mancipium 2 between a free person in potestate and
a stranger was usually entered into with one of the
following objects :

(a) Where a father sold his son (or rather hired
out his services) in Rome for purposes of gain. The
son's bondage lasted only until the next census,
when he was entitled to reinstatement as a full
freeman,3 subject of course to the father's right
to sell him again, unless (after 303 urbis) such right

1 Mommsen, Romische Forschungen, i, 74 ff.

2 A distinction between mancipium and nexum seems to be
indicated by the passage in the XII Tables : Cum nexum faciet,
mancipiumque, uti lingua nuncupassit, ita jus esto. Nexum was
apparently a contract for the repayment of a money loan, the
security for which was the debtor's own person. We have already
seen how the treatment of prisoners for debt was among the
foremost causes of domestic strife during the early Republic.

3 Cuq, Inst. jur., 56.

23o PATRIA POTESTAS

had already been exercised three times, when he
became sui juris.

(<5) To effect a noxal surrender (infra].

(c] It was very usual for a child to be placed in
the family of a friend for the purpose of education.
This was especially the case with clients, who sent
their children to be brought up as alumni in the
houses of their patrons. In such cases the child was
generally given in mancipio, and manumitted on
leaving the house of his foster-father.

We have already seen that a son given in man-
cipio did not thereby become agnatically related
with his new master's family,1 and it seems that
he could complain to the magistrate if subjected to
ill-treatment by his master. A person in mancipio
remained (as has already been said) a citizen, though
what became of his political capacities during bond-
age is uncertain. Though in bondage to his master,
he was free in respect of the rest of the world. The
status of mancipium was relative, whereas the status
of slavery was absolute, since a man might be a
slave without an owner, as when condemned to
slavery for a capital crime, or abandoned by his
master.2

(d) With a view to emancipating the son (infra).
3. Noxal surrender (noxae deditio). We have al-
ready noted the responsibility of the head for the

1 Nor of course a nexus, or paterfamilias whose person had
been seized in default of satisfaction of a debt.

2 Poste's edition of Gaius, p. 76.

PATRIA POTESTAS 231

torts of the members of his family; but it is prob-
able that the original nature of this responsibility
had become profoundly modified. The early law dis-
tinguished but dimly Breach of Contract from Tort,
or private wrong; Tort from Crime, or offence against
the State; and Crime from Sin, or offence against
the gods. It made no difference in principle whether
a citizen broke his contract or his neighbour's head,
and it was immaterial that the breach or fracture
had been unwilling or inadvertent. Probably the
consequences of default, trespass, murder, and sacri-
lege in each case had their root in the notion of
Expiation.1 The religious element must certainly
have predominated in the practice of surrendering
to the enemy a representative who had concluded a
treaty which the Senate refused to ratify, since
treaties were sacrosanct. The duty to avenge a kins-
man's wrongs was part of the sacred fundament
upon which had rested the primitive group. The
duty had a double aspect: the group had not only to
satisfy its own rough sense of justice, but was the
instrument designated to exact retribution for an
outrage against the gods. The blood-feud, though
certainly a part of the gentile tradition, could not
long have been tolerated in an orderly community.2

1 Cf. Florus, Epit., ii, 18 (deditione Mancini); Livy, viii, 39,
cited in Holmes, Common Law, c. i, but Holmes seems to have
held that redress was only due for intentional torts.

2 Among the turbulent German tribes the talionic law died
hard, and the Frankish kings followed it constantly, though

232 PATRIA POTESTAS

Yet though the State stepped in to substitute its
own regulated justice for the unregulated vengeance
of the injured party or his relatives, the punishment
long retained its character as an expiatory act, and
authors of crimes accounted serious, who were put
to death, or became civilly dead by voluntary ban-
ishment, were considered to have been sacrificed to
the gods. But in the case of private wrongs and
defaults which were not directly subversive of the
State or of religion, the notion of expiation was re-
legated to the background by an ordered adminis-
tration, solicitous above all to prevent a breach of
the peace by appeasing the anger of the injured
party. Mutilation of a freeman was, by the law of
the XII Tables, still visited by similar mutilation of
the aggressor, but the parties might agree to a com-
promise, and later a fine became substituted for the
lex talionis. The defaulting debtor, or thief caught
upon the spot,1 was handed over as a bondsman to
his creditors, or the person robbed. A wrongdoer,
who was paterfamilias, if he had the means, could
in most other cases be compelled to offer, and the
injured party to accept, money compensation for
the trespass. But the object sought was retribution
of some kind upon the offender personally : slaves
and animals, and originally persons in potestate,

probably from mixed motives. " Deadly feud " was recognized in
England till Canute's time at least.

1 Gaius, iii, 184. A slave, however, under similar circumstances
suffered, after scourging, death.

PATRIA POTESTAS 233

had no property of their own, and money paid on
their behalf constituted only a vicarious punish-
ment. Accordingly, where a son,1 slave, or animal,2
had committed injury, the father or master, unless
he were himself the author of, and actionable for
it, was obliged to surrender the delinquent into the
hands of the party injured. In course of time ad-
vancing civilization allowed the father or master to
save his son or property from the claimant, on making
good the damage, but still left to the former the option
of surrender, if the liability were more than he could
or cared to discharge.3 The liability (failing pay-
ment of damages) to be surrendered still clung to

1 Daughters were similarly liable, and I do not know that the
law placed wives in an exceptional position. The alleged pro-
hibition, in the regal period, to mancipate a wife in manu may
have referred to voluntary mancipations only. Cuq, Inst. jur. des
Romains, in. But women in early Rome had small opportunity
to bring themselves into conflict with strangers. In some cases
penalties threatened by the State were mitigated when the offender
was a child of tender years.

2 The same may have applied even to inanimate objects from
which a person had received bodily injury. The idea of satisfying
a desire for revenge is not incompatible with such a course, for
(i) primitive man can scarcely conceive anything as otherwise
than sentient, and (2) even if he did, his instinct would still be
to mutilate or destroy the tree or other object which had raised
his ire. The same reason would prompt the surrender of the
offender's dead body, or part of it, although a distinction seems to
have been observed between the body of a human being and that
of an animal. Cf. Poste's edition of Gaius, p. 524; Cuq, Inst.
Jur. des Romains, 114.

3 Holmes, Common Law, p. 9: The right of surrender was not
introduced as a limitation of liability, but, in Greece and Rome

234 PATRIA POTESTAS

the tortfeasor, even though he meanwhile changed
his master, for the obligation to surrender or com-
pensate lay with his superior for the time being (noxa
caput sequitur). Thus, if a paterfamilias, after com-
mission of a tort, by adrogation fell under the power
of another, the direct action for damages, which would
have lain against him, now lay against the adrogator,
who could only absolve himself by payment, or sur-
render of the adrogatus; conversely, where filius-
familias, after commission of the act, had become
paterfamilias, a direct action lay against himself.

A slave who had been noxally surrendered merely
changed his master; a filiusfamilias became in man-
cipio, but, under the later law, was entitled to his
release after having by his work and services given
adequate compensation for the injury which had
caused his surrender.

It is probable that one single noxae deditio, and
not three, sufficed to free the son from the father's
potestas.1

In the transactions so far examined, an existing
power has been merely transferred from one person
to another without being extinguished. The only
exception is the obvious one of death, which de-
stroyed absolutely the power of the deceased over
his sons, transferring, however, to the latter power
over their respective descendants. Abdication attenu-

alike, payment was introduced as the alternative of a failure to
surrender.

1 Gaius, iv, 79.

PATRIA POTESTAS 235

ated, sale as a slave and emancipation destroyed, the
power in one without vesting it in another.

4. Abdication, Repudiation. Short of selling
the child abroad as a slave, the most ancient law
knew no means of destroying the rights of the
ancestor by voluntary act. A paterfamilias could,
however, as a punishment banish from his house1 a
member of his family, and thus exclude him from
participation in the private sacra. This was called
abdicatio where the culprit was a male, and repudi-
atio where she was a female, for instance a daughter-
in-law in manu, her husband being powerless to
forbid her repudiation. Legally the act was inopera-
tive, the chief retained even against his will his pro-
prietary rights, and the child his quality of suus
heres. This method of punishment became obsolete
when the law made emancipation possible.2

5. In ancient times a father could sell his son as a
slave 3 " beyond Tiber " — that is, into a foreign
State having no sacral connection with Rome.

O

According to the original notions, it was not in any
mortal's discretion to confer freedom upon a slave,
or impose slavery upon a freeman, otherwise than by
a fiction. A slave could only achieve liberty through
a fictitious action brought at the suit of a citizen, and
postulating that he was in reality free. A child sold
abroad was reputed civilly dead: his subsequent
fate was no longer a matter of solicitude for the

1 Val. Max., v, 8, 3 : "protinus e conspectu meo abire jubeo."
- Cod., viii, 46, 6. 3 Cic., De Orat., i, 40, 181.

236 PATRIA POTESTAS

State, and unlike one who, having fallen a prisoner
into the enemy's hand, had escaped back to his
countrymen, a cast-off son recovered none of his
rights on returning to Rome.

6. Emancipation. Though it be open to doubt
whether the conservatively-inclined Decemvirs ever
intended a father to be enabled either to give his
son in adoption without the concurrence of the
comitia, or to make him sui juris under any circum-
stances, yet both these results were achieved by the
instrumentality of the enactment already noticed:
Si pater filium ter venum duit, films a patre liber esto.
The first case of emancipation is said to have taken
place in the year of the City 398, when C. Licinius
Stolo, in order to evade his own law prohibiting the
holding of more than 500 jugera of land by one
person, emancipated his son, and then conveyed the
surplus land to him. He was fined for it, on the
legally not very sound ground that emancipando
filium fraudem legi fecisset,1 but the transaction itself
could not be upset.

The father desiring to emancipate his son went
three times through the form of giving him in man-
cipio, by the copper and the scales, to a friend in the
manner already described, the son being each time
manumitted. The friend was called, in respect of the
fictitious purchase, parens fiduciarius, in respect of
the manumission, extraneus manumissor. By the
act of manumission, the manumittee became his
1 Livy, vii, 16.

PATRIA POTESTAS 237

client, and in order to reserve to the father the privi-
leges of patronage over his son, it became usual for
the parens fiduciarius, after the third sale, to re-sell
him to the natural parent, who now acquired power
in mancipio over the son in place of the patria
potestas, which he had irrevocably lost. The father
then himself manumitted the son, whereby he became
the son's patron, and the expectations of succession to
each other's property were to some extent reversed.
The emancipation of a daughter, grandchild, or
great-grandchild was accomplished by a single sale
only, followed by manumission by the extraneus
manumissor, or by re-sale to and manumission by
the natural parent. With the object of simplifying
the procedure, the enactment of the XII Tables,
which mentioned a son (films), but not a daughter
(filia), was construed to mean that the treble sale in
the case of daughters and other descendants not
being sons, was unnecessary ; and that these, having
been once sold, could not again automatically relapse
into the power of their natural ancestor.1 Whatever
may be thought of this construction, there was some
reason for it. The State being based upon the family
system, public interest could not brook frivolous or
capricious changes of the family status, and the com-
pulsory treble sale insured that degree of delibera-
tion which must accompany so important a trans-

1 Gaius, i, i32a. Possibly the decemviri purposely neglected
daughters and grandchildren as unimportant, leaving them under
the old law.

238 PATRIA POTESTAS

action. But females were incapable of perpetuating
or initiating a family, and their emancipation might
reasonably be carried out more summarily. For in-
stance, a daughter, who was promised in marriage to
a Roman living in one of the colonies, might be
emancipated with a view to rejoining him in the new
home and marrying him there; or a daughter-in-law
might, under similar circumstances, be emancipated
to follow an already emancipated son. When grand-
children, male or female, were alienated from the
ancestor's power it would usually be for the purpose
of transferring them to the power of their already
emancipated natural father, and in this case also a
single sale might conveniently be deemed to satisfy
the law.

Through the severance from the family the eman-
cipatus lost all agnatic rights, including that of in-
heritance. Instead of being his father's heir, the
latter, if (as was usually the case) he had manu-
mitted him, now, in certain circumstances, became
his, by virtue of the patronage. Through the change
of status he suffered capitis deminutio, and therefore,
if a patrician, lost gentilitas. For the same reason, he
did not by his emancipation acquire patria potestas
over children already born to him. So long as the
patrician privileges retained their importance, and
fathers did not freely use their testamentary power
of appointing as heirs persons outside their family
(e.g., an emancipatus), emancipation entailed serious
consequences for the son. But with the advance of

PATRIA POTESTAS 239

civilization the fetters of sonship must have been felt
to be increasingly galling, and emancipation no
doubt in time became the reward and privilege of a
dutiful or distinguished son.

The acquisition of patria potestas by legitimation
of illegitimate offspring as a consequence of the sub-
sequent marriage of the parents, or, in the case of
Latini Juniani, as a corollary to the acquisition of
citizenship, belongs to a much later epoch.

Adventitious Loss of Patria Potestas

1. A paterfamilias might suffer loss of citizenship,
and even of liberty, from various causes : by way of
punishment at the hands of the State; by capture on
the part of a foreign enemy ; by surrender to a foreign
State upon non-ratification of a treaty in the manner
already mentioned; by neglect to perform his mili-
tary duties or to register himself on the census;
or by being sold into slavery by his creditors. Loss
of citizen rights extinguished the potestas, but a
Roman prisoner of war who was fortunate enough to
escape back to his country became reinstated in his
former position by virtue of the jus postliminii. Con-
versely, the ancestor's power over a descendant who
had been captured by the enemy was similarly
paralysed.1

2. Where a filiusfamilias had been guilty of vio-
lence to a tribune, he could be summoned before the

1 Gaius, i, 129.

24o PATRIA POTESTAS

comitia tributa and punished for treason. And a filius-
familias guilty of manifest theft, after being beaten,
was delivered into the bondage of the injured party.1
In these cases the State exceptionally over-rode the
father's private jurisdiction.

3. Flamens used to have the assistance of their own
children in performing the public rites. If left child-
less, they appear to have been permitted to take for
the purpose the children of other parents, who must
be living at the time,2 even against the will of the
latter. Similarly, unmarried girls could be impressed
as vestals. In such cases, the ancestor's power was
suspended so long as the child remained consecrated
to the service of the gods, but revived when the
service terminated. The vestal, although freed from
the ancestral power, was not strictly sui juris, but
under the power of the pontifex maximus. She was
not subject to wardship.

WARDSHIP (TUTELA) AND CURATEL

Children became sui juris upon the death of their
father, if paterfamilias, and remoter descendants
upon the death of their ancestor, if their more im-
mediate ancestors had predeceased him. Where
they were still of tender years something was re-
quired in the place of the expired potestas, and this
was partially supplied by Tutory or Guardianship
(tutela). Tutory was a trust of great sanctity, which

1 Gaius, iii, 189. 2 Rossbach, Romische Ehe, 140.

PATRIA POTESTAS 241

the incumbent was expected to discharge reasonably
and honestly. Originally the gens (where the ward
was a patrician), and later the censor, no doubt exer-
cised some supervision, but regular legal remedies
for a tutor's maladministration probably did not
exist in the first few centuries.

A tutor's duties were twofold. He assumed the
ancestor's potestas to this extent, that he was en-
titled and bound to care for the proper nurture and
education of his young ward (pupillus) and to exer-
cise the amount of personal control necessary to that
end, though the ward did not usually reside with the
tutor if his mother still lived. In addition, he acted
in circumstances which could not have arisen whilst
the child was alieni juris. He brought and defended
actions on behalf of the ward, administered his affairs,
and by concurrence enabled him where necessary to
enter into valid business transactions. The tutor
could not in such transactions represent the ward :
it was necessary that the latter should himself go
through the prescribed forms, and if unable to .do so
through extreme youth (infans 1 or infantiae proxi-
mus) the tutor could only validate a bargain which
was unmistakably to the ward's benefit.2 In all other
transactions the will of the tutor was not substituted

1 Infans was a child who was not yet able to speak plainly, and
consequently could not pronounce the requisite formulas. In
time the period of infantia came to be arbitrarily fixed as the first
seven years of life.

2 Gaius, iii, 109.

R

242 PATRIA POTESTAS

for the will of the ward; the tutor by his concurrence
merely increased (augebat) the measure of the pupil's
will to the extent legally necessary to bind him.

Tutory, as we know it, probably did not become
a well-defined institution, nor did the need of it arise,
until the ancient gentile constitution was in an ad-
vanced stage of decay. Originally, tutory was prob-
ably exercised either by the gens as a corporate
body, which perhaps delegated the duty to one or
more kinsmen, or as of right by the nearest adult
male agnate or agnates of the ward, and the latter
were the persons designated by the XII Tables
(and hence called tutores legitimi), failing contrary
directions on the part of the deceased parent. But
the latter's right to choose a guardian was acknow-
ledged long before his right to choose an heir, and
the appointment of tutors by a father (tutores testa-
mentarii) was no doubt the earliest and, to ancient
notions, the most legitimate of mortis causa dis-
positions. The appointment, however, only held
good for those descendants who became sui juris on
the death of the appointor : a grandson, for instance,
on the death of his grandfather came under his own
father's power if the latter were then alive. As
guardianship was deemed a public office, filiifamilias
were eligible as tutors.

Tutelage over a male ward ceased with the
advent of puberty, which, though afterwards fixed
at the completion of the fourteenth year,1 was

1 Just. Inst., i, 22.

PATRIA POTESTAS 243

originally determined by the family after bodily
inspection.

Tutelage over adult women sprang from a differ-
ent order of ideas. A girl's normal destiny was to
remain under the ancestral potestas until nubile,
when she was provided with a dos out of the family
stock and married. Her kinsmen were then con-
sidered to have done their duty by her, and she lost
her agnatic relation and quality of sua heres; since
as we have seen, in early times marriage invariably
meant for the woman the exchange of one family for
another. Her sphere of activity — and it was often a
large one — was in any case the home; all serious
transactions with the outside world fell to her father
or husband, and at no period did the Roman law
encourage women to engage in business affairs.1
But a wife might at any time be widowed, and,
however infrequently, an adult girl might become
fatherless whilst still unmarried. There is no reason
to assume that either was considered intellectually
inferior, or deficient in strength of character. Neither
need we follow those who would derive the necessity
for perpetual wardship over females from the woman's

1 Dig., xvi, i. Velleiano senatus consulto plenissime compre-
hensum est, ne pro ullo feminae intercederent. Nam'sicut moribus
civilia officia adempta sunt feminis et pleraque ipso jure non
valent, ita multo magis adimendum eis fuit id officium, in quo
non sola opera nudumque ministerium earum versaretur, sed
etiam periculum rei familiaris. The date of the senatusconsult
is A.D. 46, but the same object had been aimed at by older
edicts.

244 PATRIA POTESTAS

inferior physique and courage; for Rome was a well-
ordered community, and property was far more secure
there than in Plantagenet England. But in addition
to ordinary prudence and intelligence, technical skill
and experience were required for all important busi-
ness in an age when ignorance of a mere form might
entail the gravest legal consequences, which, how-
ever iniquitous, the administrators of the law were,
strictly speaking, powerless to avert.1 And in early
times the breach of a solemn covenant was visited
with such terrible effects that we can well understand
the general desire of men to lift their womenfolk
altogether above the perils which lurked in most
business transactions.

Thus (apart from certain technical sex-disabilities)
the dangers involved in worldly inexperience, and
the old-Roman delicacy at the frequent appearance
of women in public, pointed to the necessity of a
protection similar to that extended to children when
dealing with strangers. Originally, no doubt, another
reason may have been the desire of the brothers,
who in any case had to provide for their sister on
their father's death pending her marriage, to prevent
her from dissipating her share of the common stock
by ill-considered gifts, or transferring it elsewhither

1 The Praetors did, however, sometimes stretch the law on
purely technical points for the benefit of women, young persons,
soldiers, and illiterate peasants. In fact, the indulgence allowed
women became in after ages so unfair as to require restriction by
Imperial Ordinance.

PATRIA POTESTAS 245

by an undesirable alliance; but to this consideration
too much weight should not be given.

A husband could by will appoint a tutor to his
widow, or confer upon her the right to choose her
own tutor, thus ousting the kinsmen from the privi-
lege. A slave could be appointed tutor by a will
whereby he became enfranchised. Where a woman
had neither testamentary nor statutory tutor, which
would happen, for instance, where a female slave had
been manumitted by her mistress, a tutor appointed
under the lex Atilia (the date of which is uncer-
tain), and named after it, was nominated by the
magistracy.

The tutor of an adult woman did not administer
her property, but he was bound to represent her be-
fore the courts, and his auctoritas was necessary to
validate transactions per aes et libram. A woman
could not marry coemptione without the auctoritas
of her tutor, and if subject to a testamentary or
statutory tutor could not (until Imperial times)
make a will even with it,1 a disability which will be
further considered in the following chapter. There
was an exception in this latter respect in the case
of a freedwoman under the tutory of her patron,
the latter being enabled to validate by his authority
the will of a liberta made per aes et libram.

In later times, with the change of the social atmo-

1 Gaius, i, 1 1 50. This view is widely, though not universally,
accepted. Cohn (Conrat), Beitrage zur Bearbeitung des romischen
Rechts., 1-17.

246 PATRIA POTESTAS

sphere and increasing liberality of the law, tutory
over adult freeborn women lost what justification it
may have originally had, and by the invention of
fiduciary tutorship the law, whilst obeyed in the let-
ter, came in time to be more or less satisfactorily
evaded. The ceremony of coemption broke the
tutory by placing the woman in the manus of the
husband : the woman, therefore, with her tutor's
auctoritas (which in course of time she became en-
titled to enforce), went through the ceremony of a
coemptional marriage with one who had promised
not to claim any marital privilege but forthwith to
remancipate her to a person of her own selection —
perhaps the very tutor from whose control she was,
with his consent, about to escape. The latter there-
upon manumitted her. Thus she again became sui
juris and her manumittor her quasi-patron and, as
such, her tutor. The tutory of the quasi-patron per-
mitted, and a trust previously undertaken bound, him
to sanction any acts of his nominal ward. Gaius
mentions that such a coemption might be for the
general purpose of avoiding the guardianship, co-
emptio fiduciaria tutelae evitandae causa (i, 114), or
for the special purpose of making a will, testamenti
faciendi gratia (i, i i$a).1 By hiring an old and frail

1 We are informed (Cic., Pro Murena, xiii, 27) that fiduciary
coemption was sometimes employed by a female heir to an estate
to extinguish the sacra attaching to it (interimendorum sacrorum
causa). Apparently this was done by mock coemptional marriage
(followed by mancipation and manumission) with a destitute,
heirless, and aged trustee, who thereby acquired the universitas

PATRIA POTESTAS 247

man (senex coemptionalis) in humble circumstances,
perhaps a slave freed for the purpose to act the
bridegroom for a reasonable consideration, the lady
obviated the danger of awkward consequences
which might have arisen out of a breach of faith on
the part of the nominal husband. The ultimate
effect of this indecorous practice, which evidently
belongs to a more sophisticated age than that which
has claimed our chief attention, was to bring tutelage
over adult females into contempt and desuetude.

Curatel originally denoted the power of the gen-
tiles or agnates to administer the affairs of a kinsman
sui juris and of the age of puberty, whom lunacy, im-
becility, a recklessly wasteful disposition, or bodily in-
firmity rendered unfit to control his own property. Any
male not so disqualified, and being sui juris, attained
on puberty full contractual capacity, and when man-
ners became less simple, men of business — especially,
we may imagine, usurers — would not scruple to ex-
ploit the follies of youth. Legislation of the sixth
century A.C. penalized those who overreached inex-
perienced young men, and it then became usual for
the Praetor to appoint a person — who was called a

of the estate, including the sacra, and was bound by his trust to
return the property to her in instalments. The trustee was then
left quiritary owner of the bare universitas with the sacra. Upon
his death the sacra became extinguished, since there was no heir
to succeed him. The woman was not his heir, as the fiduciary
coemption had not the effect of making her his filiafamilias, and
even if it had, the mancipation would have destroyed the technical
relation.

248 PATRIA POTESTAS

Curator — to advise a minor in respect of a particular
contemplated transaction. Under the Empire, cura-
torship in this sense was made general, and to
endure until the minor had completed his twenty-
fifth year (perfecta aetas). So long as tutelage over
women was permanent, a woman might have both
a tutor and a curator at the same time, since their
functions were considered to be distinct.

CHAPTER XII

SUCCESSION

r I ^HE old- Aryan family was an economic, as
J. well as a religious, entity. The family estate
was inseparable from the sacra, and co-associates in
the cult of the family were necessary co-partners in
its worldly assets and liabilities, or rather their in-
dividualities were merged in and formed an integral
part of the joint and undivided family, whose chief
managed the joint possessions. The family fortune
and the family sacra formed an agglomeration of
rights and duties which remained stable, though its
administrators shifted.

The establishment of States by the coalescence of
considerable numbers of gentes entailed a gradual
decay of the gentile system, and the recognition of
the Family in the narrower sense grouped under the
eldest living male ancestor. But even the latter was
never regarded as an owner of the family property
in anything like the modern meaning of the word.
The irresponsibility of the Roman head in the eye
of the secular City law only masked the character of
his sacred Trust; and paterfamilias, who, in his life-
time, could not capriciously deprive his dependants
of their right to worship at the family altar, was also

249

25o SUCCESSION

precluded from arbitrarily influencing the devolution
of the patrimony upon his death so as to prefer
some at the expense of others. Filiusfamilias was
heres suus et necessarius 1 — the expression suus heres
may be considered equivalent with sibi heres or
heres sui ipsius: "self-successor." He was said to
assume, or sustain, the ancestor's persona, though
what is exactly meant by the phrase has never been
established with certainty.2 It is evident that at no
time in Rome, nor, so far as I know, with any of the
Aryan races, did a successor assume the deceased's
personality to the extent of standing in his shoes for
all purposes whatsoever. Magistracy in Rome, even
in the regal period, was never heritable. No heir
was obliged or expected to marry the defunct's
widow,3 even if there were no bar of blood-relation-
ship, and the control which a son might as tutor

1 Cf. Gaius, ii, 157; Voigt, XII Tafeln, ii, 387.

2 Hoelder, in an article, Ueber die Stellung des romischen
Erben (Zeitschrift d. Savignyschen Stiftung fur Rechtsgeschichte,
vol. xxix), disputes that the heir represented the persona of the
defunct, and considers that the phrase was applicable to the
inheritance as a connecting link between its dead and its living
possessor.

3 To the ancients, however, such a suggestion was by no means
inherently absurd, and, but for the objection against mating a
woman with her nearest blood-relative, might have been con-
sidered eminently desirable of realization. Where the patriarchal
system and ancestor-worship were still in full force, women could
not be continuers of the cult, and so could not become heirs.
Therefore the best way of providing for a girl whom her father
had not portioned and given in marriage during his lifetime, was
to marry her to the heir, whom, if already married, the old law of

SUCCESSION 251

exercise over his mother, sisters, and younger
brothers was more indirect than direct, and very
different from manus or potestas. The word per-
sona itself suggests a double explanation. It meant,
among other things, a mask as worn by stage
actors to personate the characters they represented,
and also the waxen impression which it was usual
to take of the face of a dead man, to be preserved
by his posterity and displayed at the funerals of his
descendants. The heir might be said to sustain the
persona of the deceased, in that upon the stage of
life he represented him in his character of dominus,
creditor, and debtor against the outside world. But
a more likely explanation seems to be that the
heir, who in the most ancient times was invariably

Athens obligingly permitted to divorce his wife for the purpose.
Where a son and a daughter were left, the same law even went
the length of permitting their union if they had been born of
different mothers. The idea that a man's womenfolk went with
his property, however alien from Roman law, may have widely
prevailed in remoter ages. Absalom was advised to take his
father's concubines, apparently that he might irrevocably commit
himself to an act of usurpation (2 Samuel, xvi, 21), and the
prohibition of Deut., xxii, 30, may indicate that the practice
of espousing a father's wife had at one time been not uncommon.
Moreover, Solomon's indignation when asked to bestow Abishag,
his father's widow, upon Adonijah, was evidently political, not
moral. He perceived in the request a manoeuvre to advertise his
brother's claim to the throne in the eyes of the people. "Ask for
him the kingdom also, for he is my elder brother " (i Kings, ii, 22),
is his bitter retort, and he proceeds instantly to arrange for the re-
moval of one who had before intrigued for the throne (i Kings, i),
and has now again convicted himself of treasonable intent.

252 SUCCESSION

a natural or adoptive son, literally took and set up
in the ancestral abode the image of his father's
dead features. On the other hand, the inheritance
itself, as an aggregate of rights and duties, might
equally well be said to represent the persona of
the deceased. However this may be, in taking over
the deceased's property, the heir became charged
with all his debts, as well as the obligation to con-
tinue the family cult. Far from being a necessary
beneficiary, an heir might be called upon to assume
an empty honour, or even a grievous burden (since
the estate might conceivably represent a minus quan-
tity), from which the most ancient law offered no
escape, even if it had occurred to him to seek one.

Sui heredes were all those persons in the power
of the deceased at his death, who thereby became sui
juris. Grandchildren whose father had predeceased
their grandfather, were therefore sui heredes, as well
as any living children of the defunct. In a still
primitive community one would have expected each
of the sui to take the same share, for as all had been
equally subject to the power, so all might have been
deemed equally interested in the heritage. But the
XII Tables — which cannot be supposed to have
changed the law on so important a point — declared
that descendants of the defunct took per stirpes, not
per capita. Thus grandsons whose father had pre-
deceased the defunct only divided their father's por-
tion among themselves, instead of sharing equally
with their uncles.

SUCCESSION 253

The women of the family, the widow, unmarried
daughters, and widowed daughters-in-law, were
accounted to rank with the men as sharers in the
patrimony.1 Yet in practice they were subjected
to rules which effectually deprived them of free
disposition over their fortunes, as well as to some
extent even over their persons, and the anomaly of
their position suggests that the earliest known canons
of succession among the Romans represented modi-
fications of a yet older system. Perpetuation of the
sacra could not have been realized through daughters,
who were unable to continue them beyond their own
lifetime at the most, since upon- their marriage they
quitted for ever the paternal family, to which their
offspring were born strangers. It is therefore evident
that the primordial group constituted upon a patri-
archal basis cannot have contemplated as a legitimate
contingency the devolution of an estate solely to
females. But so long as the ancient and indivisible
gens remained the normal type of the social group,
such a contingency could hardly arise. The original
gens had a single head, perhaps designated by the
rule of primogeniture,2 perhaps by that of tanistry,
or possibly in some cases appointed by the free will
of his fellows, for it is unnecessary to assume a

1 This was only fair to the widow, as she could not claim to
receive back any part of her dos if it had become incorporated
in the husband's or husband's ancestor's possessions. Voigt,
XII Tafeln, ii, 388 n.

' F. de Coulanges, 90 ff., 120.

254 SUCCESSION

universal rule of succession for all gentes ; and even
if, among its usually numerous male members, the
supply of eligibles threatened to run short, the
remedy of adoption from another gens would be
timeously applied.

When the gentile bond had become loosened by
City association, new family units were constantly
constituted, and each son on his father's death
claimed an independent temporal and sacral head-
ship over his own descendants, though he con-
tinued a member of, and in many respects subject
to, the control of his gens. Among these smaller
groups, especially amid perpetual wars waged with
the outside world, failure of natural male heirs be-
came far more likely, and the practice of Adoption
or (where a whole family was absorbed) Adroga-
tion consequently more frequent. Thus there was
a gradual breaking with the ancient rule of fixed
devolution, and the choice of an adopted son,
although no doubt it usually fell upon a blood
relative, was, subject to the consent of the comitia,
remitted to the adopter's discretion. But the persons
adopted were invariably males, and female succes-
sion, we are constrained to believe, was still a thing
unknown.

TESTATION

It is doubtful whether, among the earliest Romans,
even a limited power of Testation in the modern
sense was exercised, save on very extraordinary occa-

SUCCESSION 255

sions. We know that in Rome patrician wills could
be made from very early times before the comitia
curiata, which sat in calatis twice yearly for the
purpose, or in procinctu, that is before one's com-
rades in arms, when ready to join battle with the
enemy ("procinctus est expeditus et armatus exer-
citus"; Gaius, ii, 101). But we are led to suppose
that the nature of such "wills " did not correspond
with what we now understand by that term. More-
over, it is highly probable that originally the express
consent (not a mere witnessing) of the comitia, or
assembly of citizens presided by the pontiffs as
guardians of the sacral law, was necessary to validate
the will, and this consent was by no means asked as
of right. The will upon the eve of battle was a con-
trivance to meet a specially urgent case, when a
citizen, desiring to appoint an heir, had been called
to arms before there was an opportunity of applying
to the comitia calata, or had neglected such oppor-
tunity as he had had. Even here some forms had
doubtless to be satisfied, including the taking of the
auspices.

From the point of view of the public interest, the
institution of an heir charged to continue the family
sacra was the vital element and primary object; the
disposition of the family estate (so far as competent
to the testator) and the appointment of guardians
over the females and minor male children of the
household, were only incidentally determined. Where
a paterfamilias had a suus heres, almost his only

256 SUCCESSION

object in going to the comitia at all (since he could
not, save under very special circumstances, exhere-
date him) would be to ensure the due observance of
some special duties, such as the payment of legacies
or bringing up of infants, which he desired to impose
upon the heir. But it is very probable that Testament
in its earliest known form was most usually a mere
modified Adoption,1 which was resorted to by an aged
paterfamilias, or by a youthful paterfamilias on active
service, who, being sonless, and fearing, by reason
of his age or imminent danger, to die in that condition,
now besought his fellow citizens to sanction a publicly
appointed heir. Such a successor would require no
further proof of title to enter upon the deceased's
estate, nor, if the estate fell short of his expectations,
was he permitted to disclaim it and neglect the sacra.
Whilst our conceptions of the original gentile
system drive us to reject both free testation and the
capacity of women to inherit as original patrician
institutions, the evidence is still stronger which leads
us to recognize in them, at all events partly, the out-
come of conditions in which the unattached plebeians
found themselves in the primitive City. Undoubtedly
many even of the earliest immigrant plebeians were
or became men of some substance, who could not be
indifferent to the manner of bestowal of their pos-
sessions upon their decease. But to them no law as
yet applied. They or their ancestors had lost the
citizenship of their vanquished or abandoned States

1 Clark, Early R. L., 27 ff., 116 ff.

SUCCESSION 257

without gaining that of Rome, and public policy
required the suppression of any quasi-gentile or
other association calculated to crystallize the dis-
content of a subject population. The plebeian father
already represented what the patrician father was only
just becoming through the disintegration of his gens
— an independent paterfamilias — and he was very
willing to imitate within his own household patrician
institutions like manus and potestas, whilst his free-
dom of action was untrammelled by the powerful
checks of gentile custom. When such a man died,
his dispositions, in the absence of legal sanction,
would be followed as piety and interest dictated, and,
failing special directions, his estate would be most
naturally divided, according to the rough and ready
rule that " equality is equity," among those who, in
addition to natural right, had the first opportunity to
handle it: his wife, and his children of both sexes, or
failing such, among his nearest agnates, and possibly
even his cognates also, since non-client plebeians
were not bound by gentile rules. To such a course
the City magistracy, who took no cognizance of
plebeian sacra, could raise no objection founded on
religion or public policy; and although in the be-
ginning neither the unattached plebeians nor their
belongings were technically under the wing of the
law, in practice a man's nearest relatives would be
treated as entitled to the enjoyment of his estate.
Later, when plebeians had become full citizens,
actual enjoyment, when continued a sufficient time,

s

258 SUCCESSION

was converted into legal or quiritary ownership by
usucaption.

But to such a man it would occur much more
readily than to the disciplined mind of a custom-
worshipping gentilis to innovate in regard to the
distribution of his estate when fancy or seeming ne-
cessity so demanded. So long as he remained with-
out the City law he could not secure the sanction of
the comitia to his testamentary dispositions, and had
to rely upon the interest or piety of his next-of-kin for
their faithful observance. But when plebeians be-
came liable to military service there was no ground
for disputing their right of testation in procinctu;
and when full citizenship had been achieved, I know
no reason why a plebeian's testament should not
have been considered and adjudicated upon even
by a comitium in which he himself had as yet no
right to sit. And it is extremely probable that in
such cases more latitude would be given to the
plebeian than to the patrician. There were no gentile
interests to protect; the private sacra of a plebeian
family scarcely challenged inquiry from such a body,
and a plebeian estate which, upon intestacy, was
suffered to pass in a manner contrary to patrician
canons, might a fortiori be permitted to be so dealt
with at the expressed wish of a testator. Hence it
was that the Romans familiarized themselves with
an ever-widening discretion on the part of the tes-
tator, a discretion which gradually extended to patri-
cians. But it does not follow that the process was

SUCCESSION 259

rapid, or even continuous. When the plebeians had
secured for themselves an acknowledged and im-
portant place in the community, the wealthier ele-
ments, through closer intercourse with the patriciate,
imbibed much of its conservatism, and the move-
ment toward complete freedom of testation, instead
of constantly progressing, may even have experienced
a temporary set-back until the growing liberality of
patrician sentiment enabled the nation to advance
in one body towards a set of rules of universal
application.

The relative enactments of the XII Tables mark
a long step towards this goal, though they probably
only legalized by statute what had already become
recognized custom. By this time, among the patri-
cians, the Agnatic Family had definitely ousted the
gens in the prevailing social system. The gens still
held corporate property, still celebrated religious
rites, and still, as a body, was the repository of some
potential rights in regard to individual members.
Otherwise the patrician paterfamilias governed his
family, and administered his (or its) property, as
independently as his free plebeian fellow citizen.
Special dispositions of property mortis causa had
now become the rule rather than the exception, and
the XII Tables recognized in every citizen a right
to dispose of part of his estate independently of the
assent of the comitia. I say part of the estate, for
even now testamentary power does not appear to
have been absolute. The intention of the new laws

26o SUCCESSION

was not to aid the father to defeat the son's natural
birthright. The enactment wisely enabled a testator
to appoint whomsoever he considered most trust-
worthy to the guardianship of his wife and child-
ren, without reference to the relationship, and also
allowed him to make bequests at his discretion.
But such bequests could only be made out of the
pecunia, or floating and transitory property of the
family : flocks, herds, and other marketable chattels,
and any interest in lands belonging to the State. He
does not appear to have been allowed full discretion
to will away the familia — that part of the estate which,
as its name denotes, was more particularly identified
with the family group, and had presumably been
maintained by the combined exertions of all: the
homestead, with freehold lands, and the instruments
commonly employed for their cultivation. As to
these latter, therefore, the last word still lay with the
comitia calata.1

1 Legare and testari were therefore two distinct functions;
cf. Cuq. It must be confessed that the theory rests to some
extent upon the assumed correctness of the rendering uti (pater-
familias) legassit super pecunia tutelave suae rei, ita jus esto, and
would be more difficult to uphold if it could be shown that the
words in italics were merely an interpolation or gloss of later
interpreters (Muirhead, R. L., nyn., i58n.). And the view has
failed to find favour in some authoritative quarters (e.g., Voigt, XII
Tafeln; Girard, Manuel de Droit Remain, 795 ff., who, however,
favours the inclusion of the words super pecunia tutelave in the
text). Nevertheless an absolutely unlimited right to exclude one's
nearest relatives according to whim and caprice is, I think, almost
confined to English law, and even in England the expression

SUCCESSION 261

The intention of the Legislature to protect the
interests of persons in potestate was liable to be
defeated by lavish gifts on the part of a paterfamilias
during lifetime. It was probably to prevent as far as
possible such a result that the XII Tables gave
legislative force to an old gentile rule, by enacting
that a spendthrift father might be placed, like a
madman, under curatory, and his estate administered
by kinsmen for the family's benefit. That the State
should have ventured upon so decided an invasion
of the father's privileges is proof of its anxiety to
safeguard the natural rights of his helpless depend-
ants, and perhaps also indicative of a rising tend-
ency, under plebeian influence, on the part of fathers,
to a more arbitrary bestowal of the property com-
mitted to their charge.

The XII Tables sought to establish as far as pos-
sible uniform rules of conduct for both orders, and
the enactment which widened the patrician's testa-
mentary liberty may have curtailed to some extent
the freedom with which the plebeian in actual fact
had been suffered to dispose of his property mortis
causa. The expression — Si intestate moritur, cui

" to be cut off with a shilling " shows how hard the notion died
that a father must leave something to his son. So complete a
flouting of family sentiment as absolute freedom of testation is
scarcely conceivable in a still primitive society founded upon
patriarchism. That a testator was expected never to abuse his
freedom is no answer to the objection. Communities will not
legalize with their eyes open what they consider to be a heinous
crime, however unlikely its perpetration.

262 SUCCESSION

suus heres nee escit, adgnatus proximus familiam
habeto (" If a man die intestate without suus heres,
let his nearest agnate have the familia ") — is sufficient
evidence that among Romans generally the suus
heres still succeeded as of course, failing express
contrary disposition. It is allowable to suppose that
the testament (as distinct from legacies) of a plebeian
was now subjected to the same degree of scrutiny as
that of a patrician, and that causeless disherison of
a suus heres was liable to be opposed. Nor, when
we remember the character of those sections of the
plebs which were primarily affected, is it difficult to
explain acquiescence in such a restriction, even on
the part of men triumphantly emerging from a tre-
mendous constitutional struggle. The small 'ple-
beian farmers, the toiling husbandmen, had remained
poor, and how to bestow their property was the last
of their anxieties. The richer plebeians, who con-
trolled the popular movement, would not be pre-
dominantly freeholding farmers, but dealers and
traffickers who depastured their cattle upon the
comparatively extensive State lands — men who had
risen to affluence by such rude commerce as was
then practised in Latium and Etruria.1 The bulk
of their property was pecunia, the disposal of

1 That commerce and trafficking was originally largely identified
with a certain class of plebeians probably explains the unreasoning
contempt affected by the Roman upper classes of later centuries for
the trading and speculative occupations which they themselves so
ardently pursued.

SUCCESSION 263

which the new law left entirely in their discretion.
But even plebeian landed proprietors might con-
ceivably submit without reluctance to a curtailment
of their liberties. In England, where for upwards
of four centuries l the right of the tenant in tail to
bar the entail has been firmly established, an elabor-
ate method of settlement has been devised, and from
time to time modified to suit shifting legislation, for
tying up property in land by which it is continued in
one family from generation to generation. In every
free community the tendency of each class is to ap-
proach as nearly as possible to that next above it.
Barbarous or semi-barbarous men will readily copy,
or bodily adopt in lieu of their own, an alien institu-
tion, or even an alien language, when stamped with
the prestige of a dominant class or race, with which
they have been compelled by circumstances to
familiarize themselves; and a plebeian whose home-
stead had been purchased by himself or his grand-
father would not object to its being classed with the
heredia of families who claimed to have held them
since the building of the City.

Testamentum per aes et libram. — Originally a
testament could be made only before the comitia
sitting in calatis twice yearly; and when the neces-
sity for a will arose, the best part of a year 2 might

1 That is dating from Taltarum's case, temp. Edward IV, but
the practice is still older.

2 The assemblies in calatis, though they took place twice
yearly, were not held at regular intervals of six months. Mommsen,
Staatsrecht, iii, 319.

264 SUCCESSION

elapse between intention and accomplishment, unless
in the interim opportunity presented itself in pro-
cinctu. In these circumstances, a citizen who feared
to die before his last dispositions could be declared,
would supply the deficiency by transferring with the
copper and the scales to a trusted friend, called a
"purchaser of the familia" (familiae emptor) in the
manner of an ordinary conveyance, the whole of his
estate, familia pecuniaque, upon trust to deal with it
on the death of the grantor in accordance with direc-
tions there and then orally given. The transfer was
of the totality of the grantor's rights and obligations,
considered as one aggregate (universitas), the pe-
cunia, which comprised things non-mancipable when
treated singly, being thereby carried along with the
familia. The intention, of course, was that the familiae
venditor should retain full control and disposition
over his belongings during life, the conveyance only
operating upon his decease. The intervention of a
stranger, where the dispositions were for the benefit
of a man's wife and children, was necessary because
mancipation could not take place between a pater-
familias and those in his power.

The so-called testament per aes et libram may
have been known as early as the regal period, but
though patricians might avail themselves of it in
emergencies, it must have appealed chiefly to ple-
beians as a preferable alternative to troublesome
proceedings before an unsympathetic assembly.
Originally its strict legal effect must have been to

SUCCESSION 265

forthwith divest the grantor of the whole of his
estate in favour of the alienee, whose acceptance
was esteemed an adequate guarantee that he would
not abuse the advantage to oust the grantor during
life, or defraud the intended beneficiaries or creditors
of the estate upon his decease. So tremendous a
Trust seems to have been conferred without hesita-
tion in those simple times, in reliance upon the
Fides Romana and the moral atmosphere of the
City life, with a minatory priesthood in the back-
ground.

In course of time, however, the missing legal pro-
tection came to be supplied by the enactment of the
XII Tables: cum nexum faciet mancipiumque, uti
lingua nuncupassit, ita jus esto. The directions to
the familiae emptor contained in the .nuncupatio, or
public oral declaration (nuncupare est palam nomi-
nare, Gaius, ii, 104; Varro, De L. L., vi, 60), before
five witnesses and a balance-holder, being all Roman
citizens and puberes, now gave legal effect to the
grantor's reservation of a life-interest and all dis-
positions to be observed upon his death.1

Both methods of quasi-testamentary disposition
sanctioned by the XII Tables — the declaration of
legacies in comitiis, and civil conveyance of the familia
by copper and scales with reservation of life-interest
and directions attached — failed in what to Roman

1 Creditors apparently remained unprotected against fraudulent
alienations inter vivos until the Praetor's equity furnished the
remedy.

266 SUCCESSION

notions was the chief purpose and indispensable char-
acteristic of a true Will — the institution of an Heir,
charged with the care of the family sacra. A legatee
under the statute was not an heir, a familiae emptor
was not an heir,1 nor did a beneficiary, on whose
behalf the latter took, thereby become an heir.
Testamentum per aes et libram was therefore not at
first a satisfactory mortis causa disposition of the
family property where there was no suus heres. But,
contrary no doubt to the spirit and intention of the
statute, it was in time perceived that even if " uti
legassit . . . ita jus esto " still withheld from the
settlor the uncontrolled right of passing over his
natural heirs to the extent of leaving the familia away
from them, the words, "uti lingua nuncupassit, ita jus
esto," could be stretched to cover not only the un-
controlled bestowal of the whole family estate, but the
institution of any stranger as heir, without reference
to the comitia. The Decemvirs had overreached
themselves in their efforts to broaden the law.

Glaring abuse of the new complete freedom of
testation was probably rare in the earlier ages, for
in the then state of public opinion the publicity which
was still unavoidable might cause hesitation to an
unnatural father who contemplated defrauding his
children of their heritage. The introduction of the
Written and Secret Will swept away this last safe-
guard. Here the nuncupatio consisted merely of the

1 Heredis locum obtinebat (Gaius, ii, 103) does not mean that
he was heir in the ancient sense of continuer of the cult.

SUCCESSION 267

usual formal transfer to the familiae emptor, with a
reference to provisions declared to be inscribed upon
tablets folded and tied up (codex) which the testator
held in his hand and displayed to the witnesses.

The further development of the law relating to
wills belongs to the maturity of Roman jurisprud-
ence. The whole ceremony of mancipation was
now meaningless, and whether it had been properly
performed or not was immaterial, provided there was
no reason to suspect the identity of the tablets pro-
duced. Of this, in time, the seals of seven wit-
nesses l came to be considered sufficient evidence.
Accordingly, by a change in the judicial procedure,
it was made impossible for the opponent of a will so
authenticated to inquire into the circumstances of
its making. Thus, whilst professing to respect the
strict legal right of an exheredated heir-at-law to
upset a will on the ground of informality in the
mancipation, magistrates practically defeated his
claim by granting to the persons designated by the
will beneficial enjoyment of the estate, which the
heir-at-law was powerless to disturb, and which
thus ripened by usucapion into full quiritary owner-
ship.

As the civil law developed and moulded itself

1 And, later, their signatures in addition. The number is sup-
posed to have been made up from the five witnesses and the ba-
lance-holder required for a mancipation, plus the person who had
originally represented the familiae emptor, but there is some doubt
as to the last named. See Muirhead, R. L., 272 n., and the
authorities there cited.

268 SUCCESSION

during the ensuing centuries, a mass of rules grew
up around the subject of testation. The latitude ac-
quired by the testator had no doubt outrun the
intention of the legislators who were responsible
for the XII Tables. But in the growing community,
increasing fluidity of wealth had attenuated the an-
cient semi-sacred significance of the familia, as dis-
tinguished from pecunia, and progressive economic
conditions favoured a wide discretion in owners of
large fortunes. Yet, although the heir-at-law's
natural rights henceforward remained largely at the
mercy of the testator, they were never lost sight of
by legislature or judiciary. No exclusion of sui
heredes was suffered to operate unless pronounced
unmistakably, and in prescribed form, and disheri-
son depended upon rules which, unless strictly
observed, might completely avoid the will, or at
least nullify the testator's intentions so far as they
were aimed against the interests of sui heredes.1
If these rules were observed, then indeed the clear
intention of the will must perforce prevail. But
even so, the ingenuity of later jurisconsults did not
permit matters to remain as they were. In the
course of time the doctrine of the Unduteous Will
stumbled into recognition under the equitable juris-
diction of the centum viral judges, and gave rise to a
special form of action, in which the unjust testator

1 This benefit was subsequently extended to natural children
who, having been emancipated by the testator, had at civil law
lost their rights of agnation.

SUCCESSION 269

was treated as if he had been deranged,1 unless
good cause could be shown for the manner of his
disposition. Out of this fiction grew the portio
legitima. Countries which have adopted the Roman
law still recognize in certain next-of-kin some in-
defeasible right to the family succession.

INTESTATE SUCCESSION.

" Where wills are recognized, it is necessary, upon
each decease, to examine first whether a will exists,
and then, whether it is valid. Only when one of
these questions is negatived does the law proceed
itself to designate the heir. The legal succession
is then called hereditas ab intestate delata. It is
a substituted succession, which only falls to be con-
sidered secondarily."2

Such was the position under the later Republic
and the Empire. But when we deal with the first
centuries of Rome, the statement is more correct in
an inverted form. We have seen that " testation "
in its earliest sense probably meant merely the public
institution by a sonless man of an heir, as an altern-
ative to adopting him outright, or at most the public
confirmation of certain directions charging an heir-at-
law, whose discretion would be otherwise unlimited.

1 Actual insanity was not assumed, as that would have upset
the will altogether, whereas the law only aimed at diverting some
portion of the inheritance to the next-of-kin.

2 Leonhard, Inst. d. rom. R., 370.

270 SUCCESSION

Such directions would generally refer to legacies
payable out of the pecunia, and to the wardship of
the testator's womenfolk and male children of tender
years. The latter business was of frequent occur-
rence, for where an heir-at-law was himself dis-
qualified by youth or defects of character, a pater-
familias would naturally desire to appoint as tutor
a more distant agnate, or even a legal stranger, as
for instance a kinsman of his wife's. On such matters
it is permissible to suppose that the legislation of
the XII Tables was contented merely to declare
what was already law, or at least long-standing
custom. Complete liberty of testation, if we have
correctly apprehended the situation, was the result
of accident, not a deliberately foreseen conclusion.
Testation, when it first came to regulate heirship at
all, represented an artificial succession as substituted
for the natural succession of sui, and its considera-
tion, but for reasons of convenience, should have
been postponed to, instead of preceding, that of the
latter.

The language of the XII Tables, "Si intestato
moritur cui suus heres nee escit, adgnatus proximus
familiam habeto," to which attention has already
been drawn, is evidence that at the beginning of
the fourth century urbis, testation was not uncom-
mon, but at the same time the natural right of sui
heredes to succeed, failing special provision to the
contrary, is so firmly established as to be merely
indicated by allusion as something self-understood.

SUCCESSION 271

Failing sui the nearest male agnate would most
usually be a brother. The enactment was probably,
like most of the provisions of the XII Tables, de-
claratory of existing law, or of custom,1 which was
itself the natural outcome of economic conditions.
In regal times and the early Republic, the lands
and herds, which formed the bulk of a family's pro-
perty, were tilled and tended by all male members
not disabled by age or infancy, whilst the women
taught the children, spun, and managed the interior
of a large household.2 To break up what was vir-
tually an extensive business organization each time
a senior partner died would often have entailed loss
and grave inconvenience, and it appears to have
been usual on the ancestor's death for the new family
heads to continue living and working together. If,
then, one of the sons died childless, the association
still endured ; his interest went to the survivors by
accrual, and they cared for the widow. The custom
was, however, itself a development of the City, for
under the older system it is difficult not to suppose
that, in the rare event of a paterfamilias dying

1 Muirhead, R. L., 118, mentions Ulpian's dictum that agnatic
inheritance derived (descendit) from the XII Tables. I have several
times shown cause for limiting the amount of innovation in that
exceedingly cautious code.

2 Cf. Cicero, De Off., i, 17. Prima societas in ipso conjugio
est; proxima in liberis; deinde una domus, communia omnia.
Id autem est princip'ium urbis. . . . Sequuntur fratrum conjunc-
tiones; post, consobrinorum, sobrinorumque; qui cum una domus
jam capi non possint, in alias domos, tanquam in colonias, exeunt.

272 SUCCESSION

heirless, the gens would take as a corporate body.
Moreover, it had already begun to lose its vogue
with the growth of prosperity, and particularly the
increased fluidity of wealth; and we find the XII
Tables, which allowed great freedom of contract
and testation, logically confirming in the co-heirs a
right of partition enforceable at law (actio familiae
erciscundae). Failing sui and testament, the adgnatus
in the nearest degree l took, and this was interpreted
strictly to mean only the nearest agnate, or agnates
if more than one were in the same degree. Sur-
viving brothers and sisters of the deceased took the
whole of the inheritance, to the exclusion of any
children of predeceased brothers and sisters ; and
in the event of refusal of the nearest agnates to
enter upon an inheritance it was not open to remoter
kinsmen to do so. Cognates, however near in de-
gree, still remained entirely outside the circle of
possible successors ab intestato.

It is a widely held view 2 that the subsidiary clause,
Si adgnatus nee escit gentiles familiam habento
(or words to that effect), was intended to refer to
patricians having no agnates, and since all patrician
members of a gens were actually or assumedly de-
scended from a common ancestor, it is supposed that

1 This could not be the father, for a son in potestate had
nothing to leave, and an emancipated son was no longer agnatic-
ally related. But a father, whose emancipated son died intestate
and heirless, might take as patron.

2 Following Gaius, iii, 17.

SUCCESSION 273

" agnation," as then recognized by law, was already
confined within certain degrees, or else that the
enactment provided for those cases where, though
the gentility was established, the exact degree or
nature of the kinsmanship had in course of time
become lost to sight. Both suppositions are difficult
to reconcile with our view of the gentile association,
and with the social conditions of the period. The
classical jurists, writing at a period when the gens was
but a memory of the past, are very uncertain guides.
When the XII Tables were enacted, the privileged
order was engaged in a passionate struggle for the
defence of its political preponderance over the gen-
erality, and its social precedence before the wealthier,
of the plebeians. It is not likely that at such a time
artificial inner circles of kinsmen should have grown
up within the gens in such manner as to confine
rights of agnation to members of each circle inter se,
whilst those outside were gentiles only. Neither is
it very probable that at that period wider kinsman-
ship should have been frequently lost to sight among
patricians, proud, possibly to exaggeration, of their
ancestry and connections.

A more probable explanation has been offered of
the sentence, Si adgnatus nee escit, gentiles familiam
habento, namely, that it was intended to cover the
case of deceased clients and descendants of those
who were known to have been freedmen. Clients
certainly could own property in their own right from
the moment they had achieved citizenship. A client

T

274 SUCCESSION

also enjoyed rights of family. But if he died without
sui or remoter agnates, his property upon intestacy
went to his gentiles, from whom his own family
derived its status, and whose name it bore. Where
a client's family had remained from time immemorial
in a state of clientage to a gens, the whole of the
gentiles succeeded to his estate, probably as a cor-
porate body. But after the gens had for most pur-
poses become subdivided, a client might have origin-
ally commended himself to a patron who represented
the head of one patrician family, or a branch (stirps)
of a gens. Here only the patron and his descendants
succeeded, in the circumstances related, to the client
and his descendants ; and only upon failure of the
patron stirps was the entire gens entitled to the suc-
cession. Freedmen, who had been slaves of a patri-
cian, and their descendants, were practically in the
same position as those clients who derived from a
particular gentile family or stirps. The freedman
and his descendants became clients to the manu-
mittor and his descendants. But since plebeians had
become citizens, they also could own slaves and
enfranchise them. To his freedman, a plebeian,
whether himself a client or not, stood in the position
of patron. If he predeceased the freedman the
patronage vested in his descendants ; but it did not
devolve by operation of law upon collaterals, nor
could it be bequeathed by testament.1 But the

1 When it became possible to enfranchise a slave by testament,
the slave's patron was considered to be not the instituted heir

SUCCESSION 275

patronage was distinct from gentilitas; for whilst
patricians were gentiles to their clients, no client or
plebeian (at least in the earlier ages) could be gen-
tilis to any one. Now, a man just released from
slavery had no legal family, though he had the
faculty of founding one, because in earlier times he
became a citizen at once upon enfranchisement.
Accordingly, a deceased freedman and former slave
of a plebeian, who died leaving neither will, widow,
nor children, was succeeded by his patron or patron's
children. In the rare event of the plebeian patron
family having itself become extinct during the freed-
man's lifetime, or whilst the patronage still subsisted
over his descendants, it was necessary to look for suc-
cessors among the gentiles of the patron family, who
were considered to be derivatively gentiles of the
freedman. Where the extinct patron family had been
unattached to a gens there could be no gentiles;
there was consequently total failure of succession
and the estate was derelict.1

The manumittor's patronage over his freedman
was continued in the former's children. But custom
soon broke with the hereditary quality of the freed-
man's subjection, and by the fifth or sixth century
of the City his descendants at least from his grand-

but the deceased testator. But the instituted heir might be directed
by the will to enfranchise the slave, and he then became the
patron by obeying the injunction.

1 Upon the whole subject see Ortolan's Commentaries, Inst. de
1'Empereur Justinien, vol. iii, pp. 30-49, and compare chapter,
Die romische Clientel, in Mommsen's R. F., i.

276 SUCCESSION

children downwards had become entirely free and
unattached plebeians.

As time progressed, the identity of individual
families, save the most distinguished, became increas-
ingly difficult to establish; and amid the turmoil of
political dissensions it was impossible to preserve
clientage or its incidents in their original form.
Family ties became loosened or altogether broken.
Many of the older gentes died out. New gentes and
quasi-gentes emerged, some founded by immemorially
free plebeian families, whilst others were of more
questionable title. Towards the end of the Republic
the relationship of gentilis and gentilicius had almost
disappeared, and clientage was the name of a newer
and baser association. Patronage over freedmen was
longer lived, since the former enfranchisement of a
still living man was easily remembered and prov-
able. It was frequently regulated, mostly in the
patron's interest, by later jurisprudents, and sur-
vived even the attentions of Justinian's reformers.

An inheritance vested in suus heres immediately
upon the death of the ancestor — whether he had
been instituted heir by will or had become so by
operation of law, made no difference — and we have
seen that it was not in his option to decline the suc-
cession with its attendant burdens.1 Likewise, a

1 This was remedied by later legislation. Under the praetorian
practice, the beneficium abstinendi enabled suus heres to decline
an insolvent inheritance, and the beneficium separationis entitled
a slave-heir to retain his earnings made since the testator's

SUCCESSION 277

slave who had been instituted heir by his owner
was heres necessarius, though his compulsory succes-
sion to a probably insolvent estate was sweetened
by the gift of freedom.1 The object of the latter
institution was usually to save a testator, whose
affairs were involved, from the possible disgrace of
post mortem bankruptcy, and it was customary to
mention the slave as heir in the will only after one
or more of the testator's kinsmen and friends, to
whom the hereditas was offered. A person not
being suus or necessarius heres, who succeeded by
virtue of agnation or testament, could decline an
inheritance, and consequently some act of accept-
ance (aditio) on his part was necessary to vest it in
him. Until this occurred the estate was hereditas
jacens.

A succession might be left derelict either because
no one was lawfully entitled to claim it, or because
the person so entitled, being neither suus nor neces-
sarius heres, omitted or declined to do so.2 There
would then be no one to continue the persona

death. Justinian's beneficium inventarii enabled an heir, whilst
taking over a doubtful estate, to keep it separate from his own,
so that he enjoyed any surplus of assets, but was not responsible
for any excess of liabilities. Beneficium separationis might also
be granted to creditors whose interests were threatened by merger
of a deceased's solvent estate into that of an insolvent heir.

1 The enfranchisement was at first required to be express; later
it was implied. Just. Inst., ii, 14.

2 Under the ancient law the State did not take over a deceased's
effects failing lawful successors.

278 SUCCESSION

of the deceased or attend to the sacra, and
creditors would be unable to benefit by whatever
assets there were. In such circumstances, the law
permitted any stranger who cared to do so, to enter
upon the estate ; if he remained for twelve months
in unchallenged possession, he was considered to
have constituted himself the heir (usucapio pro
herede), charging himself with the sacra and, no
doubt, the obligation of compounding with creditors.
Later, in the sixth and seventh centuries, to meet
the case where the heir or heirs did not beneficially
take the bulk of the succession, the duty of the sacra
was made to devolve upon whichever legatee or
usucapient had become possessed of the major part
of the estate.1 It is reasonable to suppose that the
same person was answerable to the creditors, at least
in proportion to the beneficial interest acquired.

In the foregoing chapter I alluded to the position
of women under the early law of testation and
tutelage, which gave right of testation by the copper
and scales to the liberta, subject only to her patron-
tutor's auctoritas, whilst withholding it altogether

1 Qui majorem partem pecuniae capiat. The distinction be-
tween pecunia and familia was no longer preserved. A debtor to
the estate who could not discharge his obligation was, in the last
resort, burdened with the sacra, since he was rightly held to have
benefited to the extent of the debt. Cicero, De Leg., ii, 19, 20, 21.
The old principle, that the sacra followed the family property,
was still maintained as far as possible, although the family pro-
perty now so often went to strangers. The old religion, however,
would not have permitted a stranger to perform the family rites.

SUCCESSION 279

from freeborn women (except vestals) — an anomaly
which further marks the haphazard growth of the law
relating to wills. In the most ancient times we are
obliged to believe that no woman could become heir
to an estate under a will or ab intestate, or dispose
of her own property by will. Both disqualifications
were necessary consequences of the social system,
which it would have been superfluous to enun-
ciate. No woman could have made good her title
to heirship, because to the heir fell the duty of
continuing the sacra; but the point never arose,
since care was always taken to secure male suc-
cession. In the absence of express prohibition, the
practice of tolerating women as co-heirs no doubt
afterwards crept in, as a consequence of the looser
plebeian ideas of succession and sacra, at a time
when the status of the plebeian was still in a tran-
sition stage. Then the citizen's subsequent, acci-
dentally-acquired freedom of testation enabled him
even to institute a woman as heir. Similarly, in
the first centuries of Rome, testation by a woman
was, apart from principle, impossible on practical
grounds, since no woman ever found herself in pro-
cinctu, and to publicly appear before the comitia was
an unheard-of proceeding. But when testation with
copper and scales had become general, it is not easy
to understand why any woman might not have made
her will with a tutor's auctoritas in the same way as
she could transfer property. The explanation that
the males were interested in retaining her property

28o SUCCESSION

in the family does not seem satisfactory. When a
woman could become heir under a will or on in-
testacy, why should she not make a will herself?
Female heirship continued, indeed, to be regarded
as an abuse, and was discouraged by various enact-
ments in the last centuries of the Republic.1 Yet it
may be asked why a woman, whose right to be in-
stituted heir had become so well established that
it required special legislation to curb it, apparently
could at no time, until special legislation was
brought to her aid,2 herself dispose of her estate
by will, unless (a further anomaly) she were a
freedwoman, or a freeborn manumittee, acting with
the concurrence of her patron.3 The second contra-
diction forms the subject of one of Dr. Conrat's
studies,4 and he explains it by assuming that tutela
over freeborn women being more ancient, was con-
sequently stricter than that over libertae and manu-
missae e mancipio. Like emancipation, the former
was undoubtedly older than the XII Tables which
confirmed it, whilst the new tutela which flowed
from the patronage of a manumittor, although also
called legitima, was the work of the later jurists who
interpreted the enactment (Gaius i, 165) at a time

1 For instance, the lex Voconia, 585 urbis.

2 Gaius, i, 1150; ii, 112, 113. There had always been an ex-
ception in favour of vestals.

3 Such is the prevailing opinion, which is also adopted by Dr.
Max Cohn (Conrat) in Beitrage zur Bearbeitung des romischen
Rechts., 1-17.

4 Ibid.

SUCCESSION 281

when the "patron's power had become enormously
attenuated. Dr. Conrat considers that the older
tutela approached so near to potestas that a faculty
of testation on the part of the ward would have
been repugnant to its principles. Without adopting
the explanation, I think the distinction he draws
between the patron-tutor and other tutors may con-
tain the solution of the whole question. But if we
distinguish the various kinds of tutela, I am rather
led to conclude that a difference had always existed,
and that the patron's was the most, not the least,
powerful. The liberta enjoyed her advantage, not
because the authority of a patron-tutor was alone
insufficient to withhold, but because it alone was
sufficient to confer, the special privilege. A guardian
was not necessarily even a kinsman, and without
further proof I am not prepared to admit that his
authority over his freeborn ward ever represented
even a modified potestas or manus. On the other
hand, it is reasonable to expect the lord's former
authority over his enfranchised slave to have origin-
ally continued in a modified form; and we know
that the old gentile patronage (which did not differ
essentially from that of an enfranchising master),
though it may have stopped short of the jus vitae
necisque, exerted a wide authority over the client.
A dominus could not, of course, have authorized his
female slave to make a will, since she had neither
property of her own, nor capacity to go through the
legal forms. But when the ancilla had been con-

282 SUCCESSION

verted by manumission into a freedwoman sui juris,
there is no reason why the remnant of his authority1
— the patronage — might not suffice to validate her
will, and it is easy to imagine that this power was
included among the functions with which the inter-
preters of the XII Tables invested the patron. By
means of fiduciary coemption with a trustee, followed
by mancipation to another trustee and manumission,
in the manner already described, freeborn women
afterwards contrived to reach the same position. By
analogy with the patron-tutor (however different in
reality) a manumittor-trustee was, like the former,
held entitled, and he was by the terms of his trust
bound, to validate by his auctoritas whatever will
his nominal ward chose to make per aes et libram.
The whole of the irrational procedure was swept
away under the Empire, when the Legislature recon-
ciled itself to the necessity of formally acknowledg-
ing in women the right of testation, which they had
long exercised in practice.

1 Cf. Sohm, Inst. d. rom. R., 77, Die Freilassung ist eine Art
von Wiedergeburt. Der Herr (patronus) tritt daher zu seinem
Freigelassenen in ein vaterahnliches Verhaltniss.

INDEX

A BDICATIO, 235.
•**• Addictio, 104, 228.
Adoption and Adrogation, 67, 2 19 flf.,

254.
^Ediles, institution of, 105 ; curule,

135-

Agnates, 203, 242, 270, 272.

Agriculture, in Latium, n.

Alba Longa, 8, 77.

Ancestor-worship. See Religion.

Army (see Military Service), origin-
ally Army = People, 83 n.

Aryans, meaning, i ; patriarchism
among, 48 ff. ; uninfluenced by
advanced civilizations, 50.

Auctoritas, of Senate, 70, 123, 130;
of tutor, see Tutory.

Augurs. See Divination.

Beneficium abstinendi, separationis,

inventarii, 276 ».
Blood-feud, 57, 231.

Capitis deminutio, 193, 227.

Censor, census censura, 133, 140,
214, 223, 229, 239.

Cities (civitates), formation of, 44, 5 1 .

Citizenship (see also Roman Con-
stitution), how lost, 75 ; originally
only patricians had, 75.

Clients (see also Gentes), position in
gens, 57 ; origin of, 57 ; rights and
duties of, 58-61 ; decline of client-
age, 61, 276; originally not citi-

zens, 76; how their number in-
creased, 76; client communities,
61; of the State, 76, 99; patron
succeeded to, when?, 274.

Coemptio, 169, 171 ff., 179, 246.

Cognates. See Agnates.

Comitia centuriata, origin of, 86 ;
supersedes c. curiata for most
purposes, 87 ; diminished signifi-
cance of, 139.

Comitia curiata, oldest popular
assembly, 66; witnessed wills and
adoptions, 67 ; how assembled,
69; decay of, 87, 138; composi-
tion and powers, 88 ff. ; adoptions
and wills in calatis, 67, 219, 260,
263.

Comitia tributa, 126, 138.

Commerce, trading element in R.,
u; with Etruria, 12.

Commercium, with Latins and
peregrins, 81.

Concilium, difference between, and
comitium, 70.

Concilium plebis,beginnings, 107-8;
suffrage restricted in, 108; posi-
tion in State, I28ff., 138.

Concubinage, 191.

Confarreation, 159, 178.

Connubium (see also Marriage), with
Latins, 8, 158; none with non-
Romans unless authorized by
special treaty, 82 ; with plebs, 82,
101; meaning of

283

284

INDEX

Consuls, how created, 96 ; limits of |
power, 97 ff. ; plebeians elegible '
as, 134; decline of powers, 136 ff.

Contiones, difference between, and
comitia, 69.

Coriolanus, C. Marcius, 108.

Creditor. See Debtor and Creditor.

Crimes, pardonable by comitia, 75,
97, 1 1 8 ; partly dealt with by XII
Tables, 118; criminal jurisdiction '•
of cone, plebis, 108, 118; not
readily distinguished from Sins
or Torts, 230.

Curatel, 247, 261.

Curia, 68 n.

Daughters. See Women.

Dea Dia, 32.

Debtor and Creditor, debtor's house '
could not be seized, 39; harshness \
of creditors, 103 ; debtor could
be made bondman or slave, 104 ;
could debtor be killed?, 113;
debtor's property could not be j
seized, 115; relief to debtor, 135, )
142 ; position of creditor to in- !
solvent estate, 115, 278.

Decemvirate, inff. ; abolition of,
121.

Dextrarum junctio, 152.

Dictator (Magister populi), 99, 123.

Dies fasti, nefasti, comitiales, 102.

Dii Termini, 28.

Divination among Aryans, Etrus-
cans, Gauls, Britons, 20 ff. ; in •
Rome, 33-35.

Divortium. See Marriage.

Dominica potestas, 209.

Dominium, 209.

Dos, 181.

Duoviri (decemviri) sacris faciundis,

32, 134-
Duoviri perduellionis, 98

Emancipation, 236.

Etruscans, 5 ; no large element in

Rome, 9; influence on Roman

religion, 23.
Expiation, 231.

Family System (see also Religion,
Rome, House, Patria Potestas,
Agnates, etc.), formed basis of
State, 73, 116,204,213; meanings
of familia, 206; familia and
pecunia distinguished, 115, 206,
260 ; character of, 35, 63, 73, 249,
271.

Fas. See Religion, Law, etc.

Fescennines, 153.

Fetiales, 33.

Flamen Dialis, 31, 35, 195.

Flamines majores and minores, 31.

Forctes and Sanates, 117.

Foreigners, position in Rome, 81 ;
modified, 82 ; marriage with
Roman citizens, 218 (and see
Connubium).

Fratres Arvales, 32.

Freedman, freed woman. See Patron.

Gentes, 6; nation an extension of,
15; basis of gentile system, 48;
system already decaying when
Rome founded, 53; headship of,
54 ; patron and client, 54, 203 ;
government within, 56; rites
strictly observed within, 64 ; how-
affected by XII Tables, 117-8;
plebs had at first no recognized,
88, 176, 276; guardianship of,
242 ; right to succession, 272.

Haruspices. See Divination.
Heir (heres). See Succession, Testa-
ment.

INDEX

=85

Hero-worship, scarcely existent in

Rome, 17.

Herus (erus, esus), 209.
Hospitium, 98.

House, sacredness of, 38, 115.
Human sacrifices, 43, 44, 55 n.

Indigites, 23.

Infans, 241.

Interrex, 72, 96.

Intestate Succession. See Succes-
sion.

Israelites, 50.

Italy, Italiots, definition of, 5 ; simi-
larity of institutions, 6.

Janus, 29.
Japigians, 5, 6.
Juno, 26, 151 «.
Jupiter, 26 ff.
Jus. See Law, Religion.
Jus osculi, 156 n.
Jus postliminii, 239.
Jus Quiritium, 68 «.

Kelts, i, 5.

King, kingship, attributes of, 71 ;
abolition of, 74, 92.

Land, originally held jointly, 56;
when made partible, conse-
quences, 62 ; could be owned in
Rome by Latins, but not for-
eigners, 81; registration of, 85;
State domains monopolized by
wealthy, 103; freeholders made
liable to military service, 84.

Lares, 30, 36, 39, 189.

Latin Federation, 8.

Latini Juniani, 239.

Latins, Latium, 6, 8; position in
Rome, 8 1.

Law (and see Religion), character
of Roman, 66 ff.

Leges Sacratae, 105, 159.

Leges Valeriae-Horatiae, 124, 128.

Lex, meaning of, 73 «., 90.

Lex Aelia Sentia, 227.

Lex Atilia, 245.

Lex Canuleia, 125, 162, 173, 217.

Lex XII Tabularum. See Twelve

Tables.

Lex Fufia Caninia, 227.
Lex Gabinia, xi.
Lex Hortensia, 124, 129, 138.
Lex Icilia (u.C. 262), 107.
Lex Icilia (u.C. 298), 107.
Lex Julia et Papia, 193.
Lex Liciniae-Sextiae, 134, 141, 144,

236.

Lex Maenia, 130.
Lex Manilia, xi.
Lex Minicia, 219.
Lex Ogulnia, 31.
Lex Ovinia, 140.
Lex Poetilia, 135.
Lex Publilia (of 283), 61, 108, 123.
Lex Publilia (of 415), 128.
Lex talionis, 57, 231.
Lex Valeria (de provocatione), 97,

118.

Lex Voconia, 280 n.
Luceres, 9.
' Luperci, 32.

! Magister Equitum, 99.

| Magister Populi. See Dictator.

Mancipium, Mancipation, 86, 209,
222 ff.

Manus (see Marriage), original
meaning of, 168, 209.

Marriage, monogamy nearly uni-
versal among Aryans, 37, 49,
194; religious aspect of, 148 ff,
177 ; connubium with Latins
and foreigners, 8, 82, 101, 158;
with plebs, 101, 117, 125; pro-
hibited degrees, 157; juris gen-

286

INDEX

tium, 162; marriageable age, 162;
consent required, 164; secular-
ization of, 176, 183; manus, 116,
i66ff., 183, 197; acquired by
usus, 169, 174; usurpatio trin-
octii, 1 86; mock marriage, 246;
dissolution of, 187, 190; position
of wife, 166, 169, 194.

Mars, 22 ; originally god of vegeta-
tion, 26 n.

Materfamilias. See Marriage,
Patria Potestas, etc.

Minerva, 26.

Military service, only (patrician)
citizens originally liable to, 83;
liability extended to all land-
owners, 83 ; period of, 86.

Nature-worship. See Religion.
Nexum, nexus, 104, 114, 229, 265.
Novensiles, 23.
Noxal surrender, 170, 230.
Nuncupatio, 265.

Ostia, 28, 75.

Palatine settlement united with
Quirinal, 1 1 ; P. Faunus, 32.

Pater patratus, 33.

Patres. See Gentes, Senate, etc.

Patria potestas, i66ff., 202 ff., 250;
over daughter married sine manu,
l%5i 193; did not extend to jus
publicum, 205 ; power over child-
ren, 116, 207, 210, 235; dual as-
pect of, 210; how gained and
lost, 2i6ff. ; only over children
born ex justis nuptiis, 217.

Patriciate, patrician (see Gentes),
originally the only citizens, 75.

Patron, patronage, 53 ff., 274, 280.

Peculium, 208.

Per aes et libram. See Mancipa-
tion.

Persona, 25off., 278.

Plebiscita. See Concilium plebis.

Plebs, plebeians, origin of, 76-77
no connubium with patricians,
77 ; not originally in com. curiata,
88 ; formed part of com. cen-
turiata, 86; members of Senate,
100; citizen privileges definitely
acquired, 101, 171; religious dis-
abilities, 101-102, 132; poverty
of, 103 ; autonomy of, 107 ; first
secession, 105 ; second secession,
12 1 ; third secession, 130; con-
nubium with patricians acquired,
125 ; could be adopted by pa-
tricians, and vice versa, 228 ; ad-
mitted to magisterial offices,
133 ff.; how protected, 102, 176;
succession among and testa-
mentary capacity of, 257; patria
potestas among, 257; formed
gentes, 88, 279.

Pontifex Maximus, 31, 97, 196.

Pontiffs, college of, 31, 97.

Portio legitima, 269.

Praetor, 135.

Pronuba, 152, 195.

Provocatio. See Crimes.

Quaestores, 98, 127.
Quirinus, 22.
Quirinal Hill, II.
Quirites, 68 n.

Ramnians, 9.

Religion in Rome, I5ff. ; ancient
ritual, 18; public religion, 19 ff.;
family religion, 35 ff. ; deification
of nature, 19; divination, 19;
epochs of, 22 ff. ; Etruscan and
Greek influences, 23 ; character
of Roman gods, 22, 30; decline
of, 24, 25 ; formality of ritual, 35;

INDEX

287

ancestor worship, 18, 37, 148,
202 ; house-altar, 39 ; tolerant
character of, 42 ; worship gener-
ally of a cheerful character, 46 ;
religious basis of society, 15, 51 ;
how connubium prevented, 82 ;
funerals, 38, 1 1 8 ; formed part of
the Constitution, 66.

Repudium. See Marriage.

Rex. See King.

Rex sacrorum or sacrificulus, 95,
136, 196.

Roman Constitution, earliest, 65 ff.;
term justified, 65 ; compared
with English, 66; religious char-
acter of, 66 ff.; Servian reforms,
81 ff., 92 ; kingship abolished,
95; modified through sub-division
of magisterial power, 136.

Rome, Romans, origin, 4, 8, 9;
character, 4, 13, 45 ff., 78-79, 101,
145 ; a Latin city, 8 ; foundation,
10; advantage of position, 12;
religion in, 1 5 fF. ; not a priest-
ridden community, 41; gentes,
51; fas, 66; large influx of
strangers, 77 ; deterioration of
national character, 147.

Sabines, 9 ; rape of, 10.

Senate, Senators, number and char-
acter, 70; senators eligible for
kingship, 74 ; plebeians admitted,
100; growing power of, 137 ff.

Senex coemptionalis, 247.

Servius Tullius, 84, 223. See Roman
Constitution.

Sibylline Books, 33, 134.

Slaves, originally possessed rights,
63 ; could not contract marriage,
196 ; status of, 230, 235 ; could
be appointed tutors, 245, and
heirs, 277.

Sodalitas, 119.

Spolia opima, 27.

Sponsalia, 180.

Succession, generally, 249 ff.; in-
testate, 117, 252, 261, 269 ff.;
position of heir, 252 ; partition
of, 272.

Sui heredes. See Succession, Tes-
tament.

Talassus, 153.

Tanistry, 253.

Tarquin the Proud, 74, 95.

Taxation, 75.

Testament, generally, 254 ff. ; how
made originally, 67, 255 ; how
affected by XII Tables, 117;
meaning of heres, 207 ; position
of heres under, 255, 266, 269; a
modified form of adoption, 256,
269; among plebeians, 258; ex-
tension of testamentary capacity,
258, 266; per aes et libram, 263;
later developments of, 267 ; "un-
duteous will," 268 ; portio legitima,
269.

Titii, 32.

Tribunes (of war), 133, 134.

Tribunes (of the plebs), tribunate,
institution of, 105 ; powers of,
106-7, 122; abolished, in; re-
stored, 121 ; nature of office
modified, 137.

Tuscans. See Etruscans.

Tutory, tutela, 170, 197, 240 ff., 281;
legitimi, testamentarii, 242 ; over
women, 243, 279; fiduciary, 246.

Twelve Tables, resolved upon, in;
character of, 1 1 2 ff. ; freed a thrice-
sold son, 225, and a once-sold
daughter or grandchild, 237 ; how
far lex talionis permitted by, 232.

Tyrrhenians. See Etruscans.

288

INDEX

Umbrians, 6.

Usucapio, 169; u. pro herede, 278.

Usus. See Marriage.

Ver sacrum, 44.

Vesta, 29, 39.

Vestals, status and privileges of,

29, 79, 240, 279, 280 n.
Vulcan, Volcanalia, 32.

Wardship. See Tutory.

Will. See Testament.

Women (see also Marriage, Patria

Potestas, Succession, Tutory,
etc.), daughters on different foot-
ing from sons, 38, 253 ; position
of, among Aryans, 49 ; business
pursuits of, very limited, 198;
influence of, in Rome, 200, 271 ;
when mancipable, 170, 225; nox-
ally surrenderable, 233; could
not continue family, 204; ward-
ship of, 243 ; testamentary capa-
city of, 246, 278; succession to
an estate, 253, 256.

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