The History of Rome (Mommsen)/Book 1/Chapter 5
THE ORIGINAL CONSTITUTION OF ROME.
The Roman house. Father and mother, sons and daughters, home and homestead, servants and chattels—such are the natural elements constituting the household in all cases, where polygamy has not obliterated the distinctive position of the mother. But the nations that have been most susceptible of culture have diverged widely from each other in their conception and treatment of the natural distinctions which the household thus presents. By some they have been apprehended and wrought out more profoundly, by others more superficially; by some more under their moral, by others more under their legal aspects. None has equalled the Roman in the simple but inexorable embodiment in law of the principles chalked out by nature herself.
The House-Father and his household. The family formed an unity. It consisted of the free man, who upon his father's death had become his own master, and the spouse, whom the priests by the ceremony of the sacred salted cake (confarreatio), had solemnly wedded to share with him water and fire, with their sons and sons' sons and the lawful wives of these, and their unmarried daughters and sons' daughters, along with all goods and substance pertaining to any of its members. The children of daughters, on the other hand, were excluded, because, if born in wedlock, they belonged to the family of the husband; and if begotten out of wedlock, they had no place in a family at all. A house of his own, and the blessing of children, appeared to the Roman citizen as the end and essence of life. The death of the individual was not an evil, for it was a matter of necessity; but the extinction of a household or of a clan was an evil, even for the community itself, which in the earliest times, therefore, opened up to the childless the means of avoiding such a fatality by their adopting, in presence of the people, the children of others as their own.
The Roman family from the first contained within it the conditions of a higher culture in the moral adjustment of the mutual relations of its members. Man alone could be head of a family. Woman did not indeed occupy a position inferior to man in the acquiring of property and money; on the contrary, the daughter inherited an equal share with her brother, and the mother an equal share with her children. But woman always and necessarily belonged to the household, not to the community; and in the household itself she necessarily held a position of domestic subjection—the daughter to her father, the wife to her husband, the fatherless unmarried woman to her nearest male relatives; it was by these, and not by the king, that in case of need woman was brought to trial. Within the house, however, woman was not servant, but mistress. Exempted from the tasks of corn-grinding and cooking, which according to Roman ideas belonged to the menials, the Roman housewife devoted herself in the main to the superintendence of her maid-servants, and to the accompanying labours of the distaff, which was to woman what the plough was to man. In like manner, the moral obligations of parents towards their children wore fully and deeply felt by the Roman nation; and it was reckoned a heinous offence if a father neglected or corrupted his child, or if he even squandered his property to his child's disadvantage.
In a legal point of view, however, the family was absolutely guided and governed by the single, all powerful will of the "father of the household" (pater familias). In relation to him all in the household were destitute of legal rights—the wife and the child no less than the bullock or the slave. As it was by the free choice of her husband that the virgin became his wedded wife, so it rested with his own free will to rear or not to rear the child which she bore to him. This maxim was not suggested by indifference to the having a family; on the contrary, the conviction that the founding of a house and the begetting of children were a moral necessity and a duty of the citizen, had a deep and earnest hold of the Roman mind. Perhaps the only instance of a support accorded on the part of the community in Rome, is the enactment that aid should be given to the father who had three children presented to him at a birth; while their views regarding exposure are indicated by its religious prohibition, so far as concerned all the sons—deformed births excepted—and at least the first daughter. Censurable, however, and injurious to the public weal as exposure might be, a father could not be divested of his right to resort to it; for he was, above all, thoroughly and absolutely master in his household, and it was intended that such he should remain. The father of the household not only maintained the strictest discipline over its members, but he had the right and duty of exercising over them judicial powers, and of punishing them, as he deemed fit, in life and limb. A grown-up son might establish a separate household, or maintain, as the Romans expressed it, his "own cattle" (peculium) assigned to him by his father; but, legally, all that the son acquired, whether by his own labour or by gift from a stranger, whether in his father's household or in his own, remained the father's property. So long as the father lived the persons legally subject to him could never hold property of their own, and could not therefore alienate, unless by him so empowered, or bequeath. In this respect wife and child stood quite on the same level with the slave, who was not unfrequently allowed to manage a house of his own, and who was likewise entitled to alienate when commissioned by his master. Indeed, a father might convey his son as well as his slave in property to a third person: if the purchaser was a foreigner, the son became his slave; if he was a Roman, the son, while as a Roman he could not become a Roman's slave, stood at least to his purchaser in a slave's stead (in mancipii causâ).
In reality the paternal and marital power was subject to no legal restrictions at all. Religion, indeed, pronounced its anathema on some of the worst cases of abuse. For example, besides the already-mentioned restriction of the right of exposure, whoever sold his wife or married son was declared accursed; and in a similar spirit it was enacted, that in the exercise of domestic jurisdiction the father, and still more the husband, should not pronounce sentence on child or wife without having previously consulted the nearest blood-relations, his wife's as well as his own. But even such provisions involved no diminution, legally, of his powers, for the execution of the anathemas was the province of the gods, not of earthly justice, and the blood-relations called in to the domestic judgment were present, not to judge, but simply to advise the father of the household in his judicial office.
But not only was the power of the master of the house unlimited, and responsible to no one on earth; it was also, as long as he lived, unchangeable and indestructible. According to Greek as well as Germanic law, the grown-up son, who was practically independent of his father, was also independent legally; but the power of the Roman father could not be dissolved during his life, either by age or by insanity, or even by his own free will, except where a daughter passed by lawful marriage out of the hand of her father into the hand of her husband, and leaving her own gens and the protection of her own gods to enter into the gens of her husband and the protection of his gods, became thenceforth subject to him as she had hitherto been to her father. It was easier, according to Roman law, for the slave to obtain release from his master, than for the son to obtain release from his father; the emancipation of the former was permitted at an early period, and by simple forms; the release of the latter was only rendered possible at a much later date, and by very circuitous means. Indeed, if a master sold his slave and a father his son, and the purchaser emancipated both, the slave obtained his freedom, but the son by such emancipation simply reverted into his father's power as before. Thus the inexorable consistency with which the Romans carried out their conception of the paternal and marital power converted it into a real right of property.
Closely, however, as the power of the master of the household over wife and child approximated to his proprietary power over slaves and cattle, the members of the family were nevertheless separated by a broad line of distinction, not merely in fact but in law, from the family property. The power of the house-master, even apart from the fact that it appeared in operation only within the house, was of a transient and in some degree a representative character. Wife and child did not exist merely for the house-father's sake, in the sense in which property exists only for the proprietor, or in which the subjects of an absolute state exist only for the king; they were the objects, indeed, of a legal right on his part, but they had at the same time capacities of right of their own; they were not things, but persons. Their rights were dormant in respect of exercise, simply because the unity of the household demanded that it should be governed by a single representative; but when the master of the household died, his sons at once came forward as its masters, and now obtained on their own account over the women and children and property the rights hitherto exercised over these by the father. On the other hand, the death of the master occasioned no change in the legal position of the slave.
Family and clan (gens). So strongly was the unity of the family realized, that even the death of the master of the house did not dissolve it. The descendants, who were rendered by that occurrence independent, regarded themselves as still in many respects an unity; a principle which was made use of in arranging the succession of heirs, and in many other relations, but above all in regulating the position of the widow and unmarried daughters. As, according to the older Roman view, a woman was not capable of having power either over others or over herself, the power over her, or, as it was in this case more mildly expressed, the "guardianship" (tutela), remained with the house to which she belonged, and was now exercised, in the room of the deceased house-master, by the whole of the nearest male members of the family; ordinarily, therefore, by sons over their mother, and by brothers over their sisters. In this sense the family, once founded, endured unchanged till the male stock of its founder died out; only the bond of connection must of course have become practically more lax from generation to generation, until at length it became impossible to prove the original unity. On this, and on this alone, rested the distinction between family and clan, or, according to the Roman expression, between Agnati and Gentiles. Both denoted the male stock; but the family embraced only those individuals who, mounting up from generation to generation, were able to exhibit the successive steps of their descent from a common progenitor; the clan (gens), on the other hand, comprehended all those who claimed to be descended from a common ancestor, but were no longer able fully to point out the intermediate links, and thereby to establish the degree of their relationship. This is very clearly expressed in the Roman names: when they speak of "Marcus, son of Marcus, grandson of Marcus and so on, the Martian," the family reaches as far as the ascendants are designated individually, and where the family terminates the clan is introduced supplementarily, indicating derivation from the common ancestor, who has bequeathed to all his descendants the name of the "children of Marcus."
Dependents of the household. To these strictly closed unities of the family or household united under the control of a living master, and the clan which originated from the dissolution of such households, there further belonged the dependents or "listeners" (clientes, from cluere). This term denoted not the guests, that is, the members of similar circles who were temporarily sojourning in another household than their own, and still less the slaves, who were looked upon in law as the property of the household and not as members of it, but those individuals who, while they were not free burgesses of any commonwealth, yet lived within one in a condition of protected freedom. This class included refugees, who had found a reception with a foreign protector, and those slaves in respect to whom their master had for the time being waived the exercise of his dominium, and so conferred on them practical freedom. This relation had not properly the character of a relation de jure, like the relation of a man to his guest or to his slave: the client remained non-free, although good faith and use and wont alleviated in his case the condition of non-freedom. Hence the "listeners" of the household (clientes), together with the slaves strictly so called, formed the "menials" (familia) dependent on the will of the "burgess" (patronus, like patricius). Hence, according to the original law, the burgess was entitled partially or wholly to resume the property of the client, to reduce him on emergency once more to the state of slavery, to inflict even capital punishment on him; and it was simply in consequence of a distinction de facto that these patrimonial rights were not asserted with the same rigour against the client as against the actual slave, and that, on the other hand, the moral obligation of the master to provide for his own people and to protect them acquired a greater importance in the case of the client, who was de facto in a more free position, than in the case of the slave. More especially must the de facto freedom of the client have approximated to freedom de jure in those cases where the relation had subsisted for several generations: when the emancipator and the emancipated had themselves died, the dominium over the descendants of the emancipated person could not be, without flagrant impiety, claimed by the heirs at law of the emancipator; and thus there was gradually formed within the household itself a class of persons in dependent freedom, who were different alike from the slaves and from the members of the gens entitled in the eye of the law to full and equal rights.
The Roman community. On this Roman household was based the Roman state, both as respected its constituent elements and its form. The community of the Roman people arose out of the junction (in whatever way brought about) of such ancient clanships as the Romilii, Yoltinii, Fabii, &c.; the Roman domain comprehended the united lands of these clans (P. 38). Whoever belonged to one of these clans was a burgess of Rome. Every marriage concluded in the usual forms within that circle was valid as a true Roman marriage, and conferred rights on the children begotten of it. Whoever was begotten in an illegal marriage, or out of marriage, was excluded from the membership of the community. On this account the Roman burgesses assumed the name of the "fathers" (patres), or the "fathers' children" (patricii), inasmuch as they all, and only they, were or could be in the eye of the law fathers, and they alone, in the eye of the law, had a father. The clans, with all the families that they contained, were incorporated with the state just as they stood. The spheres of the household and the clan continued to subsist within the state; but the position which a man held in these did not affect his relations towards the state. The son was subject to the father within the household, but in political duties and rights he stood on a footing of equality. The position of the protected dependents naturally underwent a change to the effect that the freedmen and clients of every patron received on his account toleration in the community at large; they continued, indeed, to be immediately dependent on the protection of the family to which they belonged, but the very nature of the case implied that the protégés of members of the community could not be wholly excluded from the worship and the festivities of the community, although, of course, they were not capable of the proper rights or liable to the proper duties of burgesses. This remark applies still more to the case of the protected dependents of the community at large. The state thus consisted, like the household, of the persons properly belonging to it and of dependents, of "burgesses" and of "settlers" or metœci.
The king. As the clans resting upon a family basis were the constituent elements of the state, so the form of the body-politic was modelled after the family both generally and in detail. The household was provided by nature herself with a head in the person of the father, with whom it originated, and with whom it perished. But in the community of the people, which was designed to be imperishable, there was no natural master; not, at least, in that of Rome, which was composed of free and equal husbandmen, and could not boast of a nobility by the grace of God. Accordingly it appointed from its own ranks a "leader" (rex) and "commander" (dictator), a "master of the people" (magister populi), who was the master in the household of the Roman community. That this was indeed the true nature of his position is evident, for at a later period there were to be found in, or beside his residence, the always blazing hearth, and the well-closed store-chamber of the community, the Roman Vesta, and the Roman Penates; as indications of the visible unity of that supreme household which included all Rome. The regal office was constituted by election; but the community did not owe fidelity and obedience to the king until he had convoked the assembly of freemen capable of bearing arms, and formally challenged its allegiance. Then he acquired in its entireness that power over the community which belonged to the house-father in his household; and, like him, he ruled for life. He held intercourse with the gods of the community, whom he consulted and whom he appeased (auspicia publica), and he nominated all the priests and priestesses. The agreements which he concluded in name of the community with foreigners were binding upon the whole people; although in other instances no member of the community was bound by an agreement with a nonmember. His "command" (imperium) was all-powerful in peace and in war, on which account "messengers" (lictores, from licere, to summon) preceded him with axes and rods on all occasions when he appeared officially. He alone had the right of publicly addressing the burgesses, and it was he who kept the keys of the public treasury. He had the same right as a lather had to exercise discipline and jurisdiction. He ordained punishments for breaches of order, and, in particular, flogging for military offences. He sat in judgment in all private and in all criminal processes, and decided absolutely regarding life and death as well as regarding freedom; he could hand over one burgess to fill the place of a slave to another; he could even order a burgess to be sold into actual slavery, or, in other words, into banishment. When he had pronounced sentence of death, he was entitled, but not obliged, to allow an appeal to the people for pardon. He called out the people for service in war, and commanded the army; but with these high functions he was no less bound, when an alarm of fire was raised, to appear in person at the scene of the burning.
As the house-master was not simply the greatest, but the only power in the house, so the king was not merely the first, but the only holder of power in the state. He might indeed form colleges of men of skill composed of those specially conversant with the rules of sacred or of public law, and call upon them for their advice: he might, to facilitate his exercise of power, intrust to others particular functions, such as the making communications to the burgesses, the command in war, the decision of processes of minor importance, the inquisition of crimes; he might, in particular, if he was compelled to quit the bounds of the city, leave behind him a "city-warden" (præfectus urbi), with the full powers of an alter ego; but all magisterial power existing by the side of the king's was derived from the latter, and every magistrate held his office by the king's appointment, and during the king's pleasure. All the officials of the earliest period, the extraordinary city-warden, as well as those who were probably nominated regularly, the "trackers of foul murder" (quæstores paricidii), and the "leaders of division" (tribuni, from tribus, part) of the infantry (milites) and of the cavalry (celeres), were mere royal commissioners, and not magistrates in the subsequent sense of the term. The regal power had not, and could not have, any external checks imposed upon it by law: the master of the community had no judge of his acts within the community, any more than the house-father had a judge within his household. Death alone terminated his power. If he had not himself nominated a successor (which must have been not only his lawful prerogative but very probably part of his duty), the burgesses assembled unsummoned, and designated a "temporary king" (interrex), who, however, could only remain in office five days, and was not allowed to claim the allegiance of the people on his own behalf. This interrex, having been nominated without competent summons, and therefore informally, could not himself nominate the new king; but he nominated a second interrex for other five days, who then designated the new king. The interrex might of course, before making his nomination, consult the burgesses or the council of elders, and assure himself that the person to be designated was agreeable to them; but in the election of king no formal co-operation was requisite on the part of the council of elders, and the burgesses only concurred after the nomination. In the eye of the law the new king was always and absolutely appointed by his predecessor.
Thus "the august blessing of the gods, with which renowned Rome was founded," was transmitted from its first regal recipient in regular succession to his followers in office; and the unity of the state was preserved unchanged, notwithstanding the personal change of the holders of power. This unity of the Roman people, represented in the field of religion by the Roman Diovis, was in the field of law represented by the prince, and therefore his costume was the same as that of the supreme god; the state chariot even in the city where every one else went on foot, the ivory sceptre with the eagle, the vermilion-painted lace, the chaplet of oaken leaves in gold, belonged alike to the Roman god and to the Roman king. It would be a great error, however, to regard the Roman constitution on that account as a theocracy: among the Italians the ideas of god and king never faded away into each other, as they did in Egypt and the East. The king was not the god of the people; it were much more correct to designate him as the proprietor of the state. Accordingly the Romans knew nothing of special divine grace granted to a particular family, or of any other sort of mystical charm by which a king should be made of different stuff from other men: noble descent, and relationship with earlier rulers were recommendations, but were not necessary conditions; the office might be lawfully filled by any Roman come to years of discretion, and sound in body and mind. The king was simply an ordinary burgess, whom merit or fortune, and, above all, the necessity of having one as master in every house, had placed as master over his equals—a husbandman set over husbandmen, a warrior set over warriors. As the son absolutely obeyed his father and yet did not esteem himself inferior, so the burgess submitted to his ruler without exactly accounting him his better. This constituted the moral and practical check upon the regal power. The king might, it is true, do much that was inconsistent with equity, without exactly breaking the law of the land: he might diminish his fellow-combatants' share of the spoil; he might impose exorbitant task-works, or otherwise by his imposts unreasonably encroach upon the property of the burgess; but if he did so, he forgot that his plenary power came not from God, but, under God's consent, from the people, whose representative he was; and who was there to protect him if that people should in return forget the oath of allegiance which it had sworn? The legal check, again, upon the king's power lay in the principle that he was entitled only to execute the law, not to alter it: in reality, every deviation from the law had to receive the previous sanction of the assembly of the people; if it was not so sanctioned, it was a null and tyrannical act, carrying no legal effects. It thus appears that the power of the king in Rome was, both morally and legally, altogether different from the sovereignty of the present day. There is no counterpart in modern life either to the Roman household or to the Roman state.
The senate. The strongest outward check imposed by tradition and custom upon absolute power was expressed in the principle that it was not becoming either for the house-father or the king to decide matters of importance without having taken counsel of other men. The marital and paternal power had in this way been circumscribed by the family council; and it stands still more distinctly engraven as a rule for the magistracy of all ages, that in important cases, before any resolution is taken, friends must be asked for their opinion. The assembly of the friends of the king, which thus acquired a decisive influence over the most momentous affairs of the land without at the same time trenching in law on the absoluteness of the regal power, the council of state, which the king had to consult in all affairs not of a purely military or purely judicial kind, was called the Council of the Elders (Senatus). It was by no means, however, an assemblage merely of such confidants of the king as it was his pleasure to consult; it was a permanent political institution to which even in the earliest times a certain representative character appears to have attached. The Roman gentes indeed, in the form in which they are known to us, had no visible head: no individual was called to represent the common patriarch, from whom all the clansmen were, or believed themselves, descended. But it was probably otherwise at the period when the state developed itself out of the aggregate of clans: then, in all probability, the assembly of the elders of the several clans formed the original senate, and accordingly, at a later period, each senator might still be regarded as in a certain sense the representative of one of elementary units of the state—a gens. This explains why the once nominated senator ordinarily continued—not certainly de jure, but de facto,—a member of the senate for life. This further explains why the number of the seats in the senate remained a fixed one, and equal to the number of clanships belonging to the state; so that the amalgamation of the three original communities, each of which consisted of a number of clanships, was necessarily in constitutional law accompanied by an increase of the seats in the senate. This representation, however, of the clans by means of the senate was rather typical of the design of the institution than a legal reality; for in the selection of senators the king was entirely unrestricted: it depended wholly upon himself whether or not he would grant a seat in it even to non-burgesses. In saying this much, however, we do not mean either to affirm or deny that such a thing occurred during the regal period. So long as the individuality of the clans continued to be vividly realised, it probably continued to be at least the rule, that when a senator died, the king summoned in his room another experienced and elderly man of the same clanship; but with the gradual amalgamation and internal union of the community, the selection of senators came to be practically left to the free judgment of the king, who was regarded as abusing his trust only when he omitted to fill up vacancies.
The tenure of the senatorial seats for life, however, and the fact of their being based upon the essential elements of the Roman state, secured to the senate a very different measure of importance from that which would have belonged to a mere assemblage of the king's own confidants. Formally, indeed, the privilege of the senators was limited, as respected the king, simply to the giving advice when they were asked. The king convoked the senate when he pleased, and laid before it his questions; no senator might declare his opinion unasked, still less might the senate meet without being summoned. The advice tendered was not a command; the king might omit to comply with it, while the senate had no means at its disposal for giving practical effect to its "authority." "I have chosen you," the king said to his senators, "not that ye may be my guides, but that ye may do my bidding." Yet it was, beyond all doubt, practically regarded as a flagrant abuse of the king's power when he omitted to consult the senate in important affairs. Thence the senate probably took part in imposing task-works and extraordinary services in general, in the disposal of the conquered territory, and other such matters; in all cases, moreover, where it was necessary to consult the community, as on the admission of non-burgesses to citizenship, and in the declaring aggressive war. If the Roman community was injured by a neighbour and redress was refused, the Fetialis invoked the gods to be witnesses of the wrong, and concluded with the words, "But on these matters we shall consult the elders at home how we may obtain our rights;" thereupon the king, after having consulted with the senate, reported the matter to the community: it was only when the senate and community had consented to it that the war was reckoned a righteous one, on which the blessing of the gods might reasonably be expected. On the other hand, no trace is to be found of the consultation of the senate in its collective capacity regarding the management of the army or in the administration of justice. It appears, indeed, that when the king sat in judgment himself and called in assessors, or committed the decision of processes at law to sworn deputies, he took these assessors or deputies from the ranks of the senate; but he seems to have taken them entirely of his own selection, and never to have consulted the senate as a body regarding such matters; and, for this reason no jurisdiction of the senate existed in Home so long as it was free.
The community. The division of the body of burgesses was based on the primitive normal principle that ten houses formed a clan (gens), ten clans or a hundred households formed a wardship (curia, probably related to curare, coerare—κοίρανος), ten wardships or a hundred clans or a thousand households formed the community; and further, that every household furnished a foot-soldier (hence mil-es, like equ-es, thousand-walker), find every clan a horseman and a senator. When communities combined, each of course appeared as a part (tribus) of the whole community (tota in Umbrian and Oscan), and the original unit became multiplied by the number of such parts. This division had reference primarily to the personal composition of the burgess-body, but it was applied also to the domain so far as that was distributed at all. That the curies had their lands, as well as the tribes, admits of the less doubt, since among the few names of the Roman curies that have been handed down to us we find along with some apparently derived from gentes, e. g. Faucia, others certainly of local origin, e. g. Veliensis. Besides, we meet with a very old measure of land, corresponding to the curia of a hundred households, the "hundred" (centuria), comprising a hundred homesteads of two jugera[errata 1] each. The clan's lands, of which we have already spoken (P. 38), must in this primitive period of joint possession have been the smallest unit in the division of land.
We find this constitution under its simplest form in the scheme of the Latin or burgess communities that subsequently sprang up under the influence of Rome: these had uniformly the number of a hundred acting councillors (centumviri), and each of these councillors was called "head of ten households" (decurio). The same normal numbers make their appearance throughout the earliest edition regarding the tripartite Rome, which assigns to it thirty curies, three hundred gentes, three hundred horsemen, three hundred senators, three thousand households, and as many foot-soldiers.
Nothing is more certain than that this earliest constitutional scheme did not originate in Rome: it was a primitive institution common to all the Latins, and perhaps reached back to a period long anterior to the separation of the stocks. The Roman constitutional tradition, in such points quite deserving of credit, while it accounts historically for the other divisions of the burgesses, makes the division into curies alone originate with the origin of the city; and in entire harmony with that view, not only does the curial constitution present itself in Rome, but in the recently discovered scheme of the organization of the Latin communities it appears as an essential part of the Latin municipal system.
It is difficult, on the other hand, to arrive at a satisfactory view of the object and practical value of the scheme now before us. The distribution into curies manifestly constituted its essence. The tribes cannot have been an element of essential importance, for the simple reason that their occurrence at all was, not less than their number, the result of accident; where there were tribes, they certainly had no other significance than that of preserving the remembrance of an epoch when such tribes had themselves been wholes. There is no tradition that the several tribes had special presiding magistrates or special assemblies of their own; and it is extremely probable that, in the interest of the unity of the commonwealth, the tribes out of which it had become fused together were never in reality allowed to have such institutions. In the army, it is true, the infantry had as many pairs of leaders as there were tribes; but each of these pairs of military tribunes did not command the contingent of a tribe; on the contrary, each individually, as well as all in conjunction, exercised command over the whole infantry. The clans and families also must in like manner with the tribes, although for reasons very different, have had a theoretical more than a practical significance under this type of constitution. The limits of the stock and of the household were furnished by nature. The legislative power might interfere with these circles in the way of modification; it might subdivide a larger clan and count it as two, or it might join several weak ones together; it might, indeed, enlarge or diminish even the household in a similar way. Nevertheless, affinity in blood always appeared to the Romans to be at the root of the connection between the members of a clan, and still more between those of a family; and the Roman community can only have interfered with those circles to a limited extent consistent with the retention of their fundamental character of affinity. While, accordingly, the number of households and clans in the Latin communities was origiginally perhaps regarded as fixed, it must very soon have i liable to vary amidst the accidents of human affairs, and tbe normal scheme of exactly a thousand households and exactly a hundred clans, can only have had more than a mere theoretical significance in its earliest infancy—the infancy of an institution which meets us matured on the threshold of history. The practical unimportance of these numbers is palpably evinced by the entire absence of instances where they were really applied. It is not affirmed by tradition, nor is it credible, that one foot-soldier was taken precisely from each house, and one horseman and one senator precisely from each clan; although three thousand of the former and three hundred of the latter were selected in all, the selection in detail was doubtless determined from the remotest times wholly by practical considerations, and if the Romans did not allow these normal numbers to fall entirely into abeyance, the reason of their retention lay simply in the tendency deeply implanted in the Latin character towards the systematic adjustment of proportions. If these views be correct, the only member that remains, and that really fulfilled important functions in this primitive itutional organization, is the curia. Of these there were ten, or, where there were several tribes, ten to each tribe. Such a "wardship" was a real corporate unit, the members of which assembled at least for holding common festivals. Each wardship was under the charge of a special warden (curio), and had a priest of its own (flamen curialis); beyond doubt, also, levies and valuations took place according to curial divisions, and the burgesses met in judgment by curies and voted by curies. This organization, however, cannot have been introduced primarily with a view to voting, for in that case they would certainly have made the number of subdivisions uneven.
Equality of the burgesses. Complete as was the sharply defined contrast between burgess and non-burgess, the equality of rights within the burgess-body was as complete. No people has ever, perhaps, equalled that of Rome in the inexorable rigour with which it has carried out these principles, the one as fully as the other. The sharpness of the distinction between burgesses and non-burgesses is nowhere perhaps brought out with more clearness than in the treatment of the primitive institution of honorary citizenship, which was originally designed to mediate between the two. When a stranger was, by resolution of the community, adopted into the circle of the burgesses, he might, indeed, surrender his previous citizenship, in which case he passed over wholly into the new community; but he might also combine his former citizenship with that which had just been granted to him. Such was the primitive custom, and such in Hellas it always remained, where, even in later ages, the same person not unfrequently held the freedom of several communities at the same time. But the greater vividness with which the conception of the community as such was realized in Latium, could not tolerate the idea that a man could simultaneously belong in the character of a burgess to two communities; and accordingly, when the newly-chosen burgess did not intend to surrender his previous franchise, it attached to the nominal honorary citizenship no further meaning than that of an obligation to befriend and protect the guest (jus hospitii), such as had always been recognized as incumbent in reference to foreigners.
But this rigorous retention of barriers against them that were without was accompanied by an absolute banishment of all diversity of rights among the members included in the burgess community of Eome. We have already mentioned that the distinctions existing in the household, which of course could not be set aside, were at least ignored in the community; the son, who as such was subject in property to his father, might, in the capacity of a burgess, come to have command over his father as master. There were no privileges of rank: the fact that the Tities took precedence of the Ranines, and both ranked before the Luceres, did not affect their equality in all legal rights. The burgess cavalry, which at this period was used for single combat in front of the line on horseback or even on foot, and was rather an élite or reserve troop than a special arm of the service, and which accordingly contained by far the wealthiest, best-armed, and best-trained men, was naturally held in higher estimation than the burgess infantry; but this was a distinction purely de facto, and admittance to the cavalry was doubtless conceded to any patrician. It was solely the constitutional subdivision of the burgess-body that gave rise to any distinctions in the eye of the law. The legal equality of all the members of the community was carried out even in their external appearance. Dress indeed served to distinguish the president of the community from its members, the senator from the burgess who did not belong to the senate, the grown-up man under obligation of military service from the boy not yet capable of enrolment; but otherwise, the rich and the noble as well as the poor and low-born were only allowed to appear in public in the like simple wrapper (toga) of white woollen stuff. This complete equality of rights among the burgesses had, beyond doubt, its original basis in the Indo-Germanic type of the constitution, but in the precision with which it was thus apprehended and embodied it formed one of the most characteristic and influential peculiarities of the Latin nation. It is well, in connection with this, to recall the fact that in Italy we do not meet with any race of earlier settlers, less capable of culture, that had become subject to the Latin immigrants (P. 9). They had no conquered race to deal with, and therefore no such condition of things as that which gave rise to the Indian system of caste, to the nobility of Thessaly and Sparta, and indeed, of Hellas generally, and probably also to the Germanic distinction of ranks.
Burdens of the burgesses. The maintenance of the state economy devplved, of course, upon the burgesses. The most important function of the burgess was his service in the army; for the burgess alone had the right and duty of bearing arms. The burgesses were at the same time the "body of warriors" (populus, related to populari, to lay waste, and popa, the butcher): in the old litanies it is upon the "spear-armed warrior-body" (pilumnus poplus) that the blessing of Mars was asked to descend; and the king, when he addressed them, called them "lance-men" (quirites). We have already stated how the army of aggression, the "gathering" (legio), was formed. In the tripartite Koman community it consisted of three "hundreds" (centuriæ) of horsemen (celeres, "the swift," or flexuntes, "the wheelers "), under the three leaders of division of the horsemen (tribuni celerum), and three "thousands" of footmen (milites), under the three leaders of division of the infantry (tribuni militum). To these there may perhaps have been added a number of light-armed, archers especially, fighting apart from the regular ranks. The general was ordinarily the king himself; as the cavalry had regularly a colonel of their own (magister equitum) appointed over them, it would appear that the king led mainly the infantry, and that this accordingly, as is probable also on other grounds, formed from the first the chief part of the armed force. Besides service in war, other personal burdens might devolve upon the burgesses; such as the obligation of undertaking the king's commissions in peace and in war (P. 68), and the tasks of tilling the king's lands or of constructing public buildings. How heavily in particular the burden of building the walls of the city pressed upon the community, is evidenced by the fact that the ring-walls retained the name of "tasks" (mœnia). There was no regular direct taxation, nor was there any direct regular expenditure on the part of the state. Taxation was not needed for defraying the burdens of the community, since the state gave no recompense for service in the army, for task-works or for public service generally; so far as there was such recompense at all, it was given to the person who performed the service by the district concerned in it, or by the person who could not or would not serve himself. The victims needed for the public service of the gods were procured by a tax on actions at law; the defeated party in an ordinary process paid down to the state a cattle-fine (sacramentum) proportioned to the value of the subject of dispute. There is no mention of any standing presents to the king on the part of the burgesses, but the non-burgesses settled in Rome (ærarii) appear to have paid to him a tax for protection. Besides this, there flowed into the royal coffers the port-duties (P. 50), as well as the income from the domain-lands—in particular, the pasture-tribute (scriptura) from the cattle driven out upon the common pasture, and the quotas of produce (vectigalia), which the lessees of the lands of the state had to pay instead of rent. To this was added the produce of cattle fines and confiscations, and the gains of war. In cases of need, in fine, a contribution (tributum) was imposed, which was looked upon, however, as a forced loan, and was repaid when the times improved; whether it fell upon all settlers whether burgesses or not, or upon burgesses alone, cannot be determined; the latter supposition is, however, the more probable.
The king managed the finances. The property of the state, however, was not identified with the private property of the king (which, judging from the statements regarding the extensive landed possessions of the last Roman royal house, the Tarquins, must, as a rule, have been considerable). The lands won by arms, in particular, appear to have been constantly regarded as property of the state. Whether and how far the king was restricted by use and wont in the administration of the public property, can no longer be ascertained; only we may infer from the subsequent course of procedure, that the burgesses can never have been consulted regarding it; whereas it was probably the custom to consult the senate in the imposition of the tributum, and in the distribution of the lands won in war.
Rights of the burgesses. The burgesses, however, do not merely come into view as furnishing contributions and rendering service; they also bore a part in the public government. For this purpose, all the members of the community (with the exception of the women, and the children still incapable of bearing arms), in other words, the "spearmen," as in addressing them they were designated, assembled at the seat of justice, where the king convoked them for the purpose of making a communication (conventio, contio), or formally cited them (calare, comitia calata) for the third week (in trinum noundinum), to consult them by curies. He appointed such formal assemblies of the community to be held regularly twice a year, on the 24th of March and the 24th of May, and as often besides as seemed to him necessary. The burgesses, however, were always summoned, not to speak, but to hear; not to ask. but to answer. No one spoke in the assembly but the king, or he to whom the king saw lit to grant liberty of speech; and the speaking of the burgesses consisted of a simple answer to the question of the king, without discussion, without reasons, without conditions, without breaking up the question even into parts. Nevertheless the Roman burgess community like the Germanic and, not improbably, the primitive Indo-Germanic communities generally, formed the real and ultimate basis of the political idea of sovereignty. But in the ordinary course of things this sovereignty was dormant, or only had its expression in the fact that the burgess-body voluntarily bound itself to render allegiance to its president . For that purpose the king, after he had entered on his office, simultaneously with his receiving inauguration from the priests, addressed to the assembled curies the question whether they would be to him true and loyal subjects, and would in the wonted way acknowledge himself as well as his servants, the inquisitors (quæstores) and messengers (lictores); a question which undoubtedly might no more be answered in the negative than the parallel homage in the case of a hereditary monarchy might be refused.
It was in thorough consistency with constitutional principles that the burgesses, being the sovereign power, should not on ordinary occasions take part in the course of public business. So long as public action was confined to the carrying into execution of the existing constitutional regulations, that which was, properly speaking, the sovereign power in the state could not, and might not, interfere: the laws governed, not the lawgiver. But it was different where a change of the existing constitutional regulations, or, it might be merely, a deviation from them in a particular case, was necessary. In every such case the Roman constitution exhibits the burgesses as exercising their power. If the king died without nominating his successor, the command (imperium) and the divine protection (auspicia) of the orphaned commonwealth devolved for the time upon tho burgesses, till a new master was got; and, in that case, that body unbidden nominated the first interrex (P. 68). It was only exceptionally, however, and when need required, that the burgesses thus acted of their own motion; and, therefore, the interrex chosen by the community unsummoned was not regarded as having been quite validly chosen. Ordinarily, on the other hand, the sovereignty of the state was only exercised by the burgesses and the king or interrex in co-operation. As the legal relation between ruler and ruled was itself ratified like a contract by oral question and answer, so every sovereign act of the community was completed by means of a question (rogatio), which the king—but only he, never his alter ego (P. 68)—addressed to the burgesses, and to which the majority of the curies gave an affirmative answer. In this case their consent might undoubtedly be refused. Among the Romans, therefore, law was not primarily, as we conceive it, a command addressed by the sovereign to the whole members of the community, but, primarily, a contract concluded between the constitutive powers of the state by address and counter-address. Such a legislative contract was requisite in the eye of the law in all cases which involved a deviation from the ordinary consistency of the legal system. In the ordinary course of law any one might, without restriction, give away his property to whom he would, but only upon condition of its immediate transfer: that the property should continue for the time being with the owner, and at his death pass over to another, was a legal impossibility—unless the community should allow it; a permission, which, in this case, the burgesses could grant, not only when assembled in their curies, but also when drawn up for battle. This was the origin of testaments. In the ordinary course of law the free man could not lose or surrender the inalienable blessing of freedom, and therefore he who was subject to no house-master could not subject himself to another in the character of a son—unless the community should grant him leave to do so. This was the adrogatio. In the ordinary course of law burgess-rights could only be acquired by birth, and could never be lost—unless the community should confer the patriciate, or allow its surrender; neither of which acts, doubtless, could validly take place originally without a decree of the curies. In the ordinary course of law the criminal whose crime deserved death, when once the king or his deputy[errata 2] had pronounced sentence according to judgment and justice, was inexorably executed; for the king could only judge, not pardon—unless the condemned burgess appealed to the mercy of the community, and the judge allowed him the opportunity of pleading for pardon. This was the beginning of the provocatio, which accordingly was especially permitted, not to the transgressor who had refused to plead guilty and been convicted, but to him who confessed his crime and urged reasons in palliation of it. In the ordinary course of law the perpetual treaty concluded with a neighbouring state might not be broken—unless the burgesses allowed its breach on account of injuries inflicted. Hence it was necessary that they should be consulted when an aggressive war was contemplated, but not on occasion of a defensive war when the other state had broken the treaty, nor on the conclusion of peace; it appears, however, that the question was in such a case addressed, not to the assembly of curies, but to the army. Thus, in fine, it was necessary to cons ult the burgesses whenever the king meditated any innovation, any change of the existing public law; and in so far the the right of legislation was from antiquity a right of the community, not of the king. In these, and all similar cases, the king could not act with legal effect without the co-operation of the community: the man whom the king alone declared a patrician remained a non-burgess as before, and the invalid act could only carry consequences de facto, not de jure. Thus far, then, the assembly of the community, restricted and hampered as it at first appears, was yet from antiquity a constituent element of the Roman commonwealth, and its prerogatives and action were by no means, like those of the senate, made ultimately to depend on the arbitrary will of the king.
The original constitution of Rome. Let us now sum up the results. Sovereignty, as conceived by the Romans, was inherent in the burgesses; but they were only entitled to act alone in case of necessity, and only entitled to act along with the king when there was to be a departure from existing rules. The royal power was, as Sallust says, at once absolute and limited by the laws (imperium legitimum); absolute, so far as the king's commands whether righteous not, must, in the first instance, be unconditionally complied with; limited, in so far as a command and contravening established usage, and not sanctioned by the true sovereign—the people—carried no permanent legal consequences. The oldest constitution of Rome was thus, in some measure, constitutional monarchy inverted. In that form of government the king is regarded as the possessor and bearer of the plenary power of the state; and accordingly acts of grace, for example, proceed solely from him, while the administration of the state belongs to the representatives of the people and to the executive responsible to them. In the Roman constitution the community of the people exercised very much the same functions as belong to the king in England: the right of pardon, which in England is the prerogative of the crown, was in Rome the prerogative of the community; while the ordinary operations of government devolved entirely on the crown.
If, in conclusion, we inquire as to the relation of the state itself to its individual members, we find the Roman state equally remote from the laxity of a mere defensive combination, and from the modern idea of an absolute omnipotence of the state. Checks from without, indeed, could still less be imposed upon the power of the state than upon the power of the king; but, as the very idea of legal right implies a limitation of that right, the power of the state was by no means without its limits. The community doubtless exercised power, over the person of the burgess in the imposition of public burdens, and in the punishment of offences and crimes; but any special law inflicting, or threatening to inflict, punishment on an individual on account of acts not universally recognized as penal, always appeared to the Romans, even when there was no flaw in point of form, an arbitrary and unjust proceeding. Far more restricted still was the power of the community in respect of the rights of property and the rights of family which were coincident rather than merely connected with these. In Rome the household was not absolutely annihilated, and the community aggrandized at its expense, as was the case in the police organization of Lycurgus. It was one of the most undeniable as well as one of the most remarkable principles of the primitive constitution of Borne, that the state might imprison or hang the burgess, but might not take away from him his son or his field, or even lay taxation on him. No community was so all-powerful within its own sphere as the Roman; but in no community did the burgess who conducted himself unblameably live in an equally absolute security from the risk of encroachment on the part either of his fellow-burgesses or of the state itself.
These were the principles on which the community of Rome governed itself—a free people understanding the duty of obedience, disowning all mystical ideas of divine right, absolutely equal in the eye of the law and one with another, bearing the sharply defined impress of a nationality of their own while, at the same time (as will be afterwards shown), they wisely as well as magnanimously opened their gates wide for intercourse with other lands. This constitution was neither manufactured nor borrowed; it grew up amidst and along with the Roman people. It was based, of course, upon the earlier constitutions—the Italian, the Græco-Italian, and the Indo-Germanic; but a long succession of phases of political development must have intervened between such constitutions as the poems of Homer and the Germania of Tacitus delineate, and the oldest organization of the Roman community. In the acclamation of the Hellenic, and in the shield-striking of the Germanic assemblies, there was involved an expression of the sovereign power of the community; but a wide interval separated forms such as these from the organized jurisdiction and the regulated declaration of opinion of the Latin assembly of curies. It is possible, moreover, that as the Roman kings certainly borrowed the purple mantle and the ivory sceptre from the Greeks—not from the Etruscans—the twelve lictors also, and various other external arrangements, were introduced from abroad. But that the development of the Roman constitutional law belonged decidedly to Rome, or, at any rate, to Latium, and that the borrowed elements in it are but small and unimportant, is clearly demonstrated by the fact that all its ideas are uniformly expressed by words of Latin coinage.
This constitution practically established the fundamental conceptions on which the Roman commonwealth was thenceforth to be based; for, as long as there was a Roman community, in spite of changes of form its settled principles were:—that the magistrate had absolute command; that the council of elders was the highest authority in the state; and that every exceptional resolution required the sanction of the sovereign, or, in other words, of the community of the people.
- This was not merely the case with the old religious marriage (matrimonium confarreatione); the civil marriage also (matrimonium consensu) originally gave to the husband proprietary power over his wife; and accordingly, the principles that regulated the acquisition of property, the legal ideas of "formal delivery" (coemptio), and "prescription" (usus), were applied without ceremony to the nuptial contract. In cases where the nuptial consent existed but the marital power had not been acquired, and in particular therefore during the period which elapsed before the completion of the prescription, the wife was (just as in the later marriage by causæ probatio, until that took place), not uxor, but pro uxore. Down to the period when Roman jurisprudence became a completed system the principle maintained its ground, that the wife who was not in her husband's power was not a married wife, but only passed as such (uxor tantummodo habetur. Cicero, Top. iii. 14).
- The following epitaph, although belonging to a much later period, is not unworthy to have a place here. It is the stone that speaks:—
"Hospes, quod deico, paullum est. Asta ac pellege.
Heic est sepulcrum haud pulcrum pulcrai feminæ,
Nomen parentes nominarunt Claudiam,
Suom mareitum corde deilexit sovo,
Gnatos duos creavit, horunc alterum
In terra linquit, alium sub terra locat;Sermone lepido, tum autem incessu commodo,
Domum servavit, lanam fecit. Dixi. Abei.
(Burmanni Anthol. iv. 147.)
Still more characteristic, perhaps, is the introduction of wool-spinning among purely moral qualities; which is no very unusual occurrence in Roman epitaphs. (Orelli 4639; optima et pulcherrima, lanifica pia pudica frugi casta domiseda. Orelli 4861; modestia probitate pudicitia obsequio lanificio diligentia fide par similisque cetereis probeis femina fuit.)
- Evidence of a direct nature regarding the constitutional procedure at the election of king in Rome is not to be looked for. But the nomination of dictator took place exactly in the mode here described, and the nomination of consul varied from it only in the circumstance of a binding right of posal being conceded to the community, a concession which beyond dispute bears the stamp of a later origin. The nomination itself in the case of the consulate was without exception made by the predecessor in office, or the interrex; and as the consulate and the dictatorship were in substance simply continuations of the regal office, the hypothesis which we have embodied above must be regarded as quite certain. Election by the curies was (to judge from the accounts) admissible, but by no means necessary, as the story of Servius Tullius proves. It was probably the custom to make the nomination in public (contione advocata), and the acclamation with which it was received might easily be viewed by later writers in the light of an election.
- Dionysius affirms (v. 25) that lameness excluded from the supreme magistracy. That Roman citizenship must have formed an indispensable condition for the regal office as well as for the consulate, is so self-evident as to make it scarcely worth while to refute formally the notions respecting the burgess of Cures.
- Even in Rome, where the simple constitution of ten curies early disappeared in other respects, we still discover one practical application of it, and that, singularly enough, in the very same formality which we have other reasons tor regarding as the oldest of all those that are mentioned in our legal traditions, the confarreatio. It seems scarcely doubtful that the ten witnesses in that ceremony had the same relation to the constitution of ten curies as the thirty lictors had to the constitution of thirty curies.
- This is implied in their very name. The "part" (tribus) is, as jurists know, just that which has once been or may hereafter come to be a whole; and so has no real standing of its own in the present.
- In Slavonia, where the patriarchal economy is retained up to the present day, the whole family, often to the number of fifty or even a hundred, remains together in the same house, under the control of the house-father chosen by the whole family for life (Goszpodár). The property of Che household, consisting chiefly of cattle, is managed by the house-father; the surplus is distributed among the different family branches. Private acquisitions by industry and trade remain separate property. Instances of quitting the household occur, even in the case of men, e. g., by marrying into a stranger household (Csiplovics, Slavonien, i. 106, 179).
Under such circumstances, which probably are not very widely different from the earliest condition of Rome, the household approximates in character to a community, and a fixed number of households can certainly be conceived. We may connect with such a state the primitive adrogatio.
- The original expression for this was patronum cooptari, which, as patronus like patricius by itself denoted simply the full burgess (p. 65), did not differ from the in patres or in patricios cooptari (Liv. iv. 4; Suetun. Tib. 1), or the later in patricios adlegi.
- Quĭris, quirītis, or quirinus, literally means " lance-bearer," from quĭris or cŭris = lance and ire, and in that respect agrees with samnis, samnitis, and sabinus, which even among the ancients were derived from σαύνιον, spear. Kindred forms are arquites, milites, pedites, equites, velites, those respectively who go with the bow, in bodies of a thousand, on foot, on horseback, without armour in their mere over-garment; only in the latter forms, as in dederĭtis, homĭnis, and numerous other words, the i, originally long, has been shortened. In this way the Juno quiritis, the (Mars) quirinus, the Janus quirinus, are primarily characterized by that epithet as divinities that hurl the spear; and, when used in reference to men, quiris denotes the warrior, that is, the full burgess. With this view the usus loquendi coincides. Where the locality was meant to be referred to, "Quirites," was never used, but always "Rome" and "Romans" (urbs Roma, populus, civis, ager Romanus), because the term quiris had as little of a local meaning as civis or miles. For the same reason these designations could not be combined; they did not say civis quiris, because both denoted, though from different points of view, the same conception inlaw. On the other hand, the solemn announcement of the funeral of a burgess ran in the words "this warrior has departed in death" (ollus quiris leto datus), and in like manner the party aggrieved employed this word in calling the burgesses to aid him (quiritare); the king addressed the assembled community by this name; and, when he sat in judgment, he spake according to the law of the warrior-freemen (ex jure quiritium), quite similar to the later ex jure civili. The phrase populus Romanus, Quirites, thus means "the community and the individual burgesses," and therefore in an old formula (Liv. i. 32) to the populus Romanus are opposed the prisci Latini, to the Quirites the homines prisci Latini (Bekker, Handb. ii. 20 seq.); populus Romanus Quiritium corresponds to the well-known phrases colonia colonorum, municipium municipum.
In the face of these facts it is only ignorance of language and of history that can still adhere to the idea that the Roman community was once confronted by a Quirite community of a similar kind, and that after their incorporation the name of the recently received community supplanted in ritual and legal phraseology that of the receiver.—Comp. note p. 57.
- Among the eight ritual institutions of Numa, Dionysius (ii. 64), after naming the Curiones and Flamines specifies as the third the leaders of the horsemen (οἱ ἡγεμόνες τῶν Κελερίων). According to the Progestine Calendar a festival was celebrated at the Comitium on the 19th March [adstantibus pon]tificibus et trib(unis) celer(um). Valerius Antias (ap. Dionys. ii. 13, cf. iii. 41) assigns to the earliest Roman cavalry a leader, Celer, and three centurions. Moreover Brutus is affirmed to have been tribunus celerum at the expulsion of the kings (Liv. i. 59), and according to Dionysius (iv. 71) to have even by virtue of this office made the proposal to banish the Tarquins. And, lastly, Pomponius (Dig. i. 2, 15, 19) and Lydus in a similar way, partly perhaps borrowing from him (De Mag. i. 14, 37), identify the tribunus celerum with the Celer of Antias, the magister equitum of the dictator under the Republic, and the Præfectus prætorio of the Empire.
Of these the only statements which are extant regarding the tribuni celerum, the last mentioned not only proceeds from late and quite untrustworthy authorities, but is inconsistent with the meaning of the term, which can only signify "divisional leaders of horsemen." Above all, the master of the horse of the republican period, who was nominated only on extraordinary occasions, and was in later times no longer nominated at all, cannot possibly have been identical with the magistracy that was required for the annual festival of the 19th March and was consequently a standing office. Laying we necessarily must, the account of Pomponius, which has evidently solely out of the anecdote of Brutus dressed up with ever-increasing ignorance as history, we reach the simple result, that the tribuni celerum entirely corresponded in number and character to the tribuni militum, and that they were the leaders of division of the horsemen, and therefore quite distinct from the magister equitum, an office which forming as it did a necessary appanage of the dictator must likewise have existed in the regal period. Out of the three tribuni celerum there subsequently arose, in consequence of the well-known doubling of the centuries of the cavalry, the seviri equitum Romanorum.[see Errata]
- This is indicated by the evidently very old forms, velites and arquites, and by the subsequent organization of the legion.
- Lex, properly speech, sentence spoken (from λέγειν, to speak), denotes, as is well known, a contract in general, along, however, with the connotation of a contract whose terms the proposer dictates and the accepter simply adopts or declines; as is the case, e. g., with government contracts. In the lex publico populi Romani, the proposer was the king, the accepter the people; the limited co-operation of the latter was thus significantly indicated in the very language.