THE ROMAN ASSEMBLIES

THE MACMILLAN COMPANY
NEW YORK. BOSTON. CHICAGO
ATLANTA. SAN FRANCISCO

MACMILLAN & CO., Limited
LONDON. BOMBAY. CALCUTTA
MELBOURNE

THE MACMILLAN CO. OF CANADA, Ltd.
TORONTO

THE
ROMAN ASSEMBLIES

FROM THEIR ORIGIN TO THE END
OF THE REPUBLIC

BY
GEORGE WILLIS BOTSFORD
PROFESSOR OF HISTORY IN COLUMBIA UNIVERSITY
AUTHOR OF “THE DEVELOPMENT OF THE ATHENIAN CONSTITUTION,”
“A HISTORY OF GREECE,” “A HISTORY OF ROME,”
“AN ANCIENT HISTORY,” ETC.

New York
THE MACMILLAN COMPANY
1909
All rights reserved

Copyright, 1909,
By THE MACMILLAN COMPANY.

Set up and electrotyped. Published September, 1909.

Norwood Press
J. S. Cushing Co.—Berwick & Smith Co.
Norwood, Mass., U.S.A.

To
MY WIFE

Οὐ μὲν γὰρ τοῦ γε κρεῖσσον καὶ ἄρειον,

Ἢ ὅθ’ ὁμοφρονέοντε νοήμασιν οἶκον ἔχητον

Ἀνὴρ ἠδὲ γυνή· πόλλ’ ἄλγεα δυσμενέεσσι,

Χάρματα δ’ εὐμενέτησι· μάλιστα δέ τ’ ἔκλυον αὐτοί.

PREFACE

This volume is the first to offer in monographic form a detailed treatment of the popular assemblies of ancient Rome. Necessarily much of the material in it may be found in earlier works; but recent progress in the field, involving a reaction against certain theories of Niebuhr and Mommsen affecting the comitia, justifies a systematic presentation of existing knowledge of the subject. This task has required patient labor extending through many years. The known sources and practically all the modern authorities have been utilized. A determination to keep free from conventional ideas, so as to look at the sources freshly and with open mind, has brought views of the assemblies not found in other books. The reader is earnestly requested not to reject an interpretation because it seems new but to examine carefully the grounds on which it is given. In general the aim has been to follow a conservative historical method as opposed to the radical juristic, to build up generalizations on facts rather than to estimate sources by the criterion of a preconceived theory. The primary object of the volume, however, is not to defend a point of view but to serve as a book of study and reference for those who are interested in the history, law, and constitution of ancient Rome and in comparative institutional research.

In the preparation of the volume, I have been generously aided by my colleagues in Columbia University. To Professor William M. Sloane, Head of the Department of History, I owe a great debt of gratitude for kindly sympathy and encouragement in the work. It is an especial good fortune that the proofs have been read by Professor James C. Egbert. Many improvements are due to his scholarship and editorial experience. Professor George N. Olcott has advised me on various numismatic matters, and I am indebted to Dr. John L. Gerig for information on two or three etymologies. The proofs have also been read and corrections made by Dr. Richard R. Blews of Cornell University. It is a pleasure to remember gratefully these able friends who have helped me with their special knowledge, and to add the name of Mr. Frederic W. Erb of the Columbia University Library, whose courtesy has facilitated the borrowing of books for the study from other institutions.

Notwithstanding every effort to make the work accurate, mistakes and inconsistencies will doubtless be found in it, and I shall thankfully welcome suggestions from any reader for its further correction and improvement.

GEORGE WILLIS BOTSFORD.

Mount Vernon, New York, June 7, 1909.

CONTENTS

THE ROMAN ASSEMBLIES

PART I
ELEMENTS OF THE COMITIAL CONSTITUTION

CHAPTER I
THE POPULUS AND ITS EARLIEST POLITICAL DIVISIONS

I. The Populus

The derivation of populus, “people,” “folk,” is unknown. Attempts have been made to connect it with populari, “to devastate,” so as to give it primarily a military signification—perhaps simply “the army.”[1] In the opinion of others it is akin to plēnus, plēbes, πλῆθος, πολύς, πίμπλημι,[2] in which case it would signify “multitude,” “mass,” with the idea of collective strength, which might readily pass into “army” as a secondary meaning.[3] Fundamentally personal, it included all those individuals, not only the grown men but their families as well, who collectively made up the state, whether Roman or foreign, monarchical or republican.[4] Only in a transferred sense did it apply to territory.[5] The ancient definition, “an association based on the common acceptance of the same body of laws and on the general participation in public benefits,”[6] is doubtless too abstract for the beginnings of Rome. Citizenship—membership in the populus—with all that it involved is elaborately defined by the Roman jurists;[7] but for the earlier period it will serve the purpose of the present study to mention that the three characteristic public functions of the citizen were military service, participation in worship, and attendance at the assembly.[8] In a narrower sense populus signifies “the people,” “masses,” in contrast with the magistrates or with the senate, as in the well known phrase, senatus populusque Romanus.

II. The Three Primitive Tribes

The Romans believed that the three tribes which composed the primitive populus were created by one act in close relation with the founding of the city.[9] For some unknown reason they were led to connect the myth of Titus Tatius, the eponymous hero of the Tities,[10] with the Quirinal,[11] and with the Sabines,[12] who were generally supposed to have occupied that hill.[13] Consequently some of their historians felt compelled to defer their account of the institution of the tribes till they had told of the union of the Sabines with the Romans, which at the same time gave them an opportunity to derive the names of the curiae from those of the Sabine women. Varro,[14] however, who protests against this derivation, refers the organization of the people in the three tribes to an earlier date, connecting it immediately with the founding of Rome. Though he affirmed that one tribe was named after Romulus, another after Titus Tatius, and the third, less positively, after an Etruscan Lucumo, Caeles Vibenna, who came to the aid of Romulus against Titus Tatius,[15] neither he nor any other ancient writer identified the Tities with the Sabines, whose quarter in the city was really unknown,[16] or the Luceres with an Etruscan settlement under Caeles whether in the Vicus Tuscus[17] or on the Caelian hill.[18] Since the Romans knew the tribe in no other relation than as a part of the state, they could not have thought of their city as consisting originally of a single tribe, to which a second and afterward a third were added, or that any one of these three tribes had ever been an independent community. These views are modern;[19] there is no trace of them in the ancient writers.[20] Even if it could be proved that they took this point of view, the question at issue would not thereby be settled; for no genuine tradition regarding the origin of the primitive tribes came down to the earliest annalists; the only possible knowledge they possessed on this point was deduced from the names of the tribes and from surviving institutions presumably connected with them in the period of their existence.[21] Under these circumstances modern speculations as to their independent character and diverse nationality seem absurd. The proper method of solving the problem is to test and to supplement the scant sources by a comparative study of the institution.

The low political vitality of the three primitive Roman tribes, as of the corresponding Greek phylae,[22] when we first meet with them in history, points to the artificiality of these groups—a condition indicated further both by their number and by their occurrence in other Italian states.[23] Far from being confined to Rome, the tripartite division of the community belonged to many Greek and to most Italian peoples,[24] and has entered largely into the organization of communities and nations the world over.[25] A derivation of tribus, Umbrian trifu, accepted by many scholars, connects it with the number three.[26] The wide use of this conventional number, and more particularly the regular recurrence of the same three Dorian tribes in many Dorian cities—as of the same four Ionic tribes in many Ionic cities[27]—and of the same three Latin (or Etruscan?) tribes in several old Latin cities, could not result from chance combinations in all these places, but point unmistakably to the systematic imitation of a common pattern. That pattern must be ultimately sought in the pre-urban populus, ἔθνος, folk. If we assume that before the rise of city-states the Ionian folk was organized in four tribes (phylae) and the Dorian and Latin folks in three tribes, we shall have a condition such as will satisfactorily explain the tribal organization of the city-states which grew up within the areas occupied by these three folks respectively. The thirty votes of the Latins may be best explained by assuming a division of their populus into three tribes, subdivided each into ten groups corresponding to the Roman curiae. Whereas in Umbria the decay of the pre-urban populus allowed its tribes to become independent,[28] in Latium a development in that direction was prevented by the rise of city-states, which completely overshadowed the preëxisting organization.

The Italian city-state grew not from a tribe or a combination of tribes, but from the pagus,[29] “canton,” a district of the pre-urban populus with definite consecrated boundaries,[30] usually centering in an oppidum—a place of defence and refuge.[31] In the beginning the latter enjoyed no superior right over the territory in which it was situated.[32] A pagus became a populus at the point of time when it asserted its political independence of the folk. The new state organized itself in tribes and curiae after the pattern of the folk. In the main this arrangement was artificial, yet it must have taken some account of existing ties of blood.[33] At the same time the oppidum became an urbs[34]—a city, the seat of government of the new populus. Thus arose the city-state. In the case of Rome several oppida with parts of their respective pagi[35] were merged in one urbs—that known as the city of the four regions.[36] Urbs and ager excluded each other, just as the oppidani contrasted with the pagani;[37] but both were included in the populus.

Most ancient writers represent the three tribes as primarily local,[38] and the members as landowners from the founding of the city.[39] Although their view may be a mere inference from the character of the so-called Servian tribes, the continuity of name from the earlier to the later institution points to some degree of similarity between them. It can be easily understood, too, how in time the personal feature might have so overcome the local as to make the old tribes appear to be based on birth in contrast with the territorial aspect of the new.[40]

It was probably on the institution of the later tribes that the earlier were dissolved. They left their names to the three double centuries of patrician knights.[41] Their number appears also as a factor in the number of curiae, of senators, and of members of the great sacerdotal colleges. Other survivals may be found in the name “tribunus,” in the tribuni militum, the tribuni celerum,[42] the ludus Troiae,[43] and less certainly in the Sodales Titii.[44]

III. The Curiae

The curia as well as the tribe was a common Italian institution. We know that it belonged to the Etruscans,[45] the Latins,[46] and several other peoples of Italy.[47] There were ten curiae to the tribe, making thirty in all.[48] The association was composed, not of gentes as many have imagined, but of families.[49] For the performance of its social and religious functions it had a house of assembly, also called curia,[50] in which the members—curiales—gathered for religious festivals. The place of meeting was a part of an edifice belonging to the collective curiae. In historical time there were two such buildings—the Curiae Veteres[51] on the northeast slope of the Palatine near the Arch of Constantine, containing seven curial meeting-places, and the Novae Curiae[52] near the Compitum Fabricium, containing the others. Their deities were Juno[53] and Tellus;[54] and their chief festivals were the Fornacalia and the Fordicidia.[55] As the worship was public, the expense was paid by the state.[56] At the head of the curia stood the curio—who in historical time was merely a priest[57]—assisted in his religious functions by his wife and children,[58] by a lictor[59] and a flamen.[60] The fact that the curio had these officials proves that he was originally a magistrate.[61] One of the curiones the people elected curio maximus to exercise general supervision over the worship and festivals of the association.[62]

Another function of the curiae was political. The grown male members, meeting in the comitium, constituted the earliest assembly organized in voting divisions—the comitia curiata—in which each curia cast a single vote.[63] Religious and political functions the curia continued to exercise far down into historical time; and for that reason they have never been doubted by the moderns. For the primitive period Dionysius[64] ascribes to them military functions as well. His idea is that the three original tribes furnished military divisions each under a tribune, and the curiae as subdivisions of the tribe furnished companies, commanded each by a curio chosen for his valor.[65] Doubtless the writer fairly describes the military system which Rome employed before the introduction of the phalanx,[66] and which corresponds closely with the system prevalent among the early Greeks,[67] Germans,[68] and other European peoples.[69] The military organization was everywhere a parallel of the civil. The Roman army, however, was by no means identical with the curiate assembly, for many belonged to the tribes and the curiae who for various reasons were exempt from military service.[70]

It is probable, too, that the curiae, as well as the tribes,[71] were territorial divisions. Not only have we the authority of Dionysius[72] that each curia occupied a district of the state, but also two of the seven known curial names—Foriensis and Veliensis[73]—are local. Though the two mentioned refer to places within the city, the country people were also included in the associations.[74]

Since Niebuhr the opinion has generally prevailed that the curia was composed of gentes. A passage which at first glance seems to have a bearing on the question is Dion. Hal. ii. 7. 4: “Romulus divided the curiae into decades, each commanded by a leader, who in the language of the country is called decurion.”[75] The word decurion proves, however, that in speaking of decades Dionysius is thinking of the military divisions called decuriae, each commanded by a decurion. In historical times the troop of cavalry—turma—was divided into three decuriae of ten each, as the word itself indicates. There were accordingly three decurions to the turma, and ten turmae ordinarily went with the legion.[76] From Varro[77] we learn that the three primitive tribes furnished turmae and decuriae of cavalry, the decuriae commanded by decurions. Dionysius accordingly refers to military companies—either to the well known decuriae of cavalry or to corresponding companies of footmen which probably existed before the adoption of the phalanx.[78] Had he meant gentes, he would have used the corresponding Greek word γένη. Niebuhr[79] inferred from this passage that each curia was divided into ten gentes, making three hundred gentes for the entire state; but a careful interpretation shows that no reference to the gentes is intended. We cannot infer therefore from this citation that the curia was divided into gentes.

The other passage relative to the question is Gellius xv. 27. 4,[80] in which Laelius Felix states that the voting in the comitia curiata was by genera hominum in contrast with the census et aetas of the centuriate assembly and with the regiones et loca of the comitia tributa. Niebuhr identifies genera with gentes.[81] It is clear, however, that in this passage Laelius is not concretely defining the voting units of the various assemblies, but is stating in a general way the principles underlying their organization into voting units. In the comitia centuriata the principle is wealth and age; census et aetas is not to be identified with centuria or with any other group of individuals in this assembly. In like manner regiones et loca expresses the principle of organization of the tribal assembly; or if used concretely, it must designate the tribes themselves, and not subdivisions of the tribes, for none existed. Correspondingly genera hominum signifies that the principle of organization of the curiate assembly is hereditary connection; but so far as the expression is applied concretely, it must denote the curiae themselves not subdivisions of these associations. The curia, a religious, social, and political group based on birth, might well be called genus hominum in contrast with the local tribe and with the century, composed artificially of men of similar wealth and age. It is well known, too, that voting within the curiae was not by gentes but by heads.[82] As no other passage from the sources, besides these two, has even the appearance of lending support to the proposition advanced by Niebuhr, and favored by others, that the curia was a group of gentes, we may conclude that this proposition is groundless. The result is that the gens had no connection with the comitial organization.

I. The Populus; the beginnings of Rome: Schwegler, A., Römische Geschichte, I. bk. viii; Peter, C., Geschichte Roms, i. 17 ff.; Niese, B., Grundriss der röm. Geschichte, 16 ff., 28 ff.; Jordan, H., Topographie der Stadt Rom im Altertum, I. i. 153 ff; iii. 34; Gilbert, O., Geschichte und Topographie der Stadt Rom im Altertum, i, ii; Richter, Topographie der Stadt Rom, 30 ff. (see review by H. Degering, in Berl. Philol. Woch. 1903. 1645 f.); Platner, S. B., Topography and Monuments of Ancient Rome, ch. iv; Schulze, W., Zur Geschichte lateinischer Eigennamen, 579-82; Pais, E., Ancient Legends of Roman History, ch. xii; Nissen, H., Das Templum, ch. v; Italische Landeskunde, ii. 488 ff.; Kornemann, E., Polis und Urbs, in Klio, v (1905). 72-92; Carter, J. B., Roma Quadrata and the Septimontium, in Am. Journ. of Archaeol. xii (1908). 172-83; Deecke, Wm., Die Falisker; Montelius, Die frühesten zeiten Roms, in Correspbl. d. deutsch. Gesellsch. f. Anthr. Ethn. u. Urgesch. xxxv (1904). 122; Pöhlmann, R., Die Anfänge Roms; Schrader, O., Sprachvergleichung und Urgeschichte, bk. IV. ch. xii; Heer, König, Sippe, Stamm in Reallexikon der indogermanischen Altertumskunde; Fustel de Coulanges, Ancient City, bk. iii; Leist, Graeco-italische Rechtsgeschichte, 103 ff.; Alt-arisches Jus Civile, i. 319-36; Meyer, E., Geschichte des Altertums, ii. 510 ff.; Mommsen, History of Rome, bk. I. chs. iii, iv; Röm. Staatsrecht, iii. 3 ff., 112-22; Marquardt, J., Röm. Staatsverwaltung, i. 3 ff.; Lange, L., Röm. Altertümer, i. 55-284; Das röm. Königtum, in Kleine Schriften, i. 77-104; Herzog, E., Geschichte und System der röm. Staatsverfassung, i. 3-23, 969 ff.; Willems, P., Droit public Romain, 17 ff.; Karlowa, O., Röm. Rechtsgeschichte, i. 30 ff.; Greenidge, A. H. J., Roman Public Life, ch. i; Bernhöft, F., Staat und Recht der röm. Königszeit, 69 ff.; Genz, Das patricische Röm, 51 ff.; Morlot, E., Les comices électoraux sous la république Romaine, ch. i.

II. The Primitive Tribes: Niebuhr, B. G., Röm. Geschichte, i. 300-321; English, i. 149-58; Schwegler, ibid. I. bk. IX. ch. xiv. § 2; Niese, ibid. 30 f.; De Sanctis, G., Storia dei Romani, i. 249-55; Gilbert, ibid. ii. 329-79; Nissen, Templum, 144-6; Ital. Landesk. ii. 7-15, 496 ff.; Jordan, H., Die Könige im alten Italien, 35-7; controverted by W. Soltau, in Woch. f. Kl. Philol. xxv (1908). 220-3; Mommsen, Röm. Staatsr. iii. 95-100, 109-12; Rom. Tribus, 1 f.; Lange, Rom. Alt. i. 81-101; Herzog, ibid. i. 23 ff.; Madvig, J. N., Röm. Staat, i. 95-8; Mispoulet, J. B., Les institutions politiques des Romains, i. 3-6; Soltau, W., Altröm. Volksversammlungen, 46-51; Willems, P., Le sénat de la république Romaine, I. ch. i; Bloch, G., Les origines du sénat Romain, 1-16, 32-8; Bernhöft, ibid. 79 ff.; Genz, ibid. 89-106; Meyer, ibid.; Der Ursprung des Tribunats und die Gemeinde der vier Tribus, in Hermes, xxx (1895). 1-24; controverted by Sp. Vassis, in Athena, ix (1897). 470-2; Kubitschek, W., De romanorum tribuum origine ac propagatione 1 ff.; Volquardsen, C. A., Die drei ältesten röm. Tribus, in Rhein. Mus. N. F. xxxiii (1878). 538-64; Bormann, E., die älteste Gliederung Roms, in Eranos Vindobonensis, 345-58; Holzapfel, L., Die drei ältesten röm. Tribus, in Beiträge zur alten Geschichte, i (1902). 228-55; Bertolini, C. I., I celeres ed il tribunus celerum; Zimmermann, A., Zu Titus, etc., in Rhein. Mus. N. F. 1 (1895). 159 f.; Schlossmann, S., Tributum, tribuere, tribus, in Archiv f. lat. Lexicog. xiv (1906). 25-40; Schulze, W., Zur Gesch. lateinischer Eigennamen, see index, s. Ramnenses, etc.

III. The Curiae: Pott, A. F., Etymologische Forschungen, ii. 373 ff.; Corssen, W., Ausspr. index, s. Curia; Vaniček, A., Etymologisches Wörterbuch der lat. Sprache, 160; Griech.-lat. etym. Wörterbuch, 1116; Niebuhr, ibid. i. 321-54; Schwegler, ibid. i. 610-12; Gilbert, ibid, index s. Curia; Richter, ibid. index s. Curia; Mommsen, Röm. Staatsr. iii. 89 ff.; Lange, ibid. i. 275-84, and index, s. Curia; Willems, P., Sén. Rom. ibid.; Bloch, G., Orig. d. sén. 290 ff.; Mispoulet, J. B., ibid. i. 7-9; Fustel de Coulanges, ibid. 154-7; Karlowa, ibid.; Genz, ibid. 32-50; Hoffmeister, K., Die Wirtschaftliche Entwickelung Roms, 5 f.; Soltau, ibid. 46-67; Müller, J. J., Studien zur röm. Verfassungsgeschichte, in Philol. xxxiv (1875). 96 ff.; Ihne, Wm., History of Rome, i. 113 f.; Newman, F. W., Dr. Ihne on the Early Roman Constitution, in Classical Museum, vi (1849). 15 ff.; Hoffmann, E., Patricische und plebeiische Curien; Kübler and Hülsen, Curia, in Pauly-Wissowa, Real-Encycl. iv. 1815-26; Pelham, H., The Roman Curiae, in (English) Journal of Philology, ix (1880). 266-79.

IV. The Gentes: Fustel de Coulanges, ibid. bk. ii; Leist, Graeco-ital. Rechtsgesch. 11 ff.; Alt-arisches Ius Gentium; Alt-arisch. Jus Civ. i. 461-76 (Irish Kin); Hirt, H., Indogermanen, ii. 409-56; Engels, F., Der Ursprung der Familie, des Privateigentums und des Staats, ch. v; Howard, G. E., History of Matrimonial Institutions, I. pt. i; Levison, W., Die Beurkundung des Zivilstandes im Altertum; Wildebrandt, M., Die politische und sociale Bedeutung der attischen Geschlechter vor Solon, in Philologus, Supplb. vii (1899). 135-227; Kovalevsky, M., La gens et le clan, in Annales de l’institut international de sociologie, vii (1900). 57-100; Ruggiero, E., La gens in Roma avanti la formazione del comune; Schwegler, ibid. i. 612-15; Lange, ibid. i. 211-59, and see index, s. v.; Mommsen, Röm. Forsch, i. 1-127; Röm. Staatsr. iii. 9-53, and see index s. v.; Mispoulet, ibid. i. 9-14; Willems, Sén. Rom. i. chs. i-iii; Müller, J. J., Studien z. röm. Verfassungsgesch. in Philol. xxxiv (1876). 96-104; Bloch, G., ibid. 102 ff.; Recherches sur quelques gentes patriciennes, in Mélanges d’archéologie et d’histoire de l’école Française de Rome, 1882. 241-76; Soltau, ibid. 58-64, 652-5; Bernhöft, ibid.; Genz, ibid. 1-31; Bloch, L., Die ständischen und sozialen Kämpfe in der röm. Republik; Holzapfel, L., Il numero dei senatori Romani durante il periodo dei rei, in Rivista di storia antica, ii. 2 (1897). 52-64; Marquardt, J., Privatleben der Römer, 1-26, 353 f.; Deecke, ibid. 275 ff. (on Italian names); Michel, N. H., Du droit de cité Romaine; Köhm, J., Altlateinische Forschungen, 1-21; Lécrivain, C., Gens, in Daremberg et Saglio, Dict. ii. 1504-16; Ruggiero, E., Diz. ep. iii (1906). 482-6; Casagrandi, V., Le minores gentes ed i patres minorum gentium; Staaf, E., De origine gentium patriciarum; Lieboldt, K., Die Ansichten über die Entstehung und das Wesen der Gentes patriciae aus der Zeit der Humanisten bis auf unsere Tage; Botsford, G. W., Some Problems connected with the Roman Gens, in Political Science Quarterly, xxii (1907). 663-92.

CHAPTER II
THE SOCIAL COMPOSITION OF THE PRIMITIVE POPULUS

This chapter[83] is primarily an inquiry into the social composition of the comitia curiata. At the same time it seeks to solve a problem which is doubtless the most fundamental in the early political and constitutional history of Rome. The result we reach will determine our conception of the whole course of constitutional development, and of the accompanying political struggles, to the complete equalization of the social ranks. For if we believe, as do many of the moderns,[84] that the primitive Roman state was made up exclusively of patricians, we are forced to the conclusion that the constitutional development to the passing of the Hortensian laws centred in the gradual admission of the plebeians and the clients to citizenship—perhaps even in the amalgamation of two distinct peoples. If on the other hand we take the ground that from the beginning the plebeians and the clients were citizens and voted in the comitia curiata, we must think of these inferior classes as struggling through the early history of their country for the acquisition not of citizenship but of various rights and privileges, social, economic, religious, and political, formerly monopolized by a patrician aristocracy. In attempting to solve the problem here proposed it will be advantageous to consider (1) the ancient view, (2) the conventional modern view, (3) the comparative-sociological view.

I. The Ancient View

The three social classes of freemen—plebeians, patricians, and clients—were formed within the citizen body by official recognition of existing distinctions not of nationality but of worth. The first step in the process was the differentiation of the patricians from the plebeians. According to Cicero, Romulus constituted a number of chief men into a royal council, the senate, whose members he so highly esteemed as to have them called patres, and their children patricians.[85] Cicero thinks of the multitude as existing at first without a politically recognized nobility, yet showing natural distinctions of worth. By calling into the senate the ablest and best men, the state ennobled them and their families.[86] Livy’s[87] view is similar: Romulus selected from the multitude a hundred senators, whom he named patres, and whose descendants were called patricians. They were chosen because of their wisdom;[88] on that ground the state granted them nobility,[89] which accordingly in Rome, as in every early community, was founded on personal merit.[90] In the more detailed theory of Dionysius,[91] Romulus “distinguished those who were eminent for their birth and celebrated for their virtue, and whom he knew to be rich in the account of those times and who had children, from the obscure and mean and poor. The lower class he called plebeians, Greek δημοτικοί, and the higher patres, either because they were older than the others, or had children, or were of higher birth, or for all these reasons.... The most trustworthy historians of the Roman constitution assert that owing to these facts they were called patres and their descendants patricians.” According to Plutarch,[92] “Romulus, after forming the army, employed the rest of the people as the citizen body (δῆμος); the multitude he called populus, and appointed a hundred nobles to be councillors, whom he called patricians, and their assembly the senate.”[93]

There can be no doubt, therefore, as to the opinion of the ancient writers. They believed that from the beginning social distinctions existed naturally within the populus Romanus, and that these distinctions were made the basis of an official division of the people into nobles and commons, patricii and plebs, by the government. This view is not only reasonable in itself, but is supported, as we shall see, by analogies drawn from many other states.

All the sources make the patriciate depend upon connection with the senate, Dionysius alone showing some inconsistency on this point.[94] Why the senators were called patres the ancients give various reasons. Cicero[95] thinks patres a term of endearment; Sallust[96] believes that the name was applied either because of age or because of the similarity of their duty; Livy[97] sets it down as a title of honor; Festus[98] thinks chiefly of their age and wisdom; Paulus,[99] his epitomator, suggests that they were so called because they divided their lands among the poorer class as fathers among children; Dionysius[100] gives three possible reasons, (1) greater age, (2) possession of children, (3) family reputation. The sources generally agree in representing the patres as men who in age, honor, authority and duty stood toward the rest of the citizens as a father toward his children, and in identifying these social-political patres with the senators.[101] An examination of the word itself will tend to confirm the ancient view. It seems to have originally signified “protector,” “keeper,” “nourisher,”[102] hence “owner,” “master.” Pater familias is nourisher, protector, and master of a household.[103] In late Roman law the term continued to refer not necessarily to actual parentage but rather to the legal position of the head of a household;[104] in fact it is only in a distantly derived sense that pater comes to signify the male parent. Ideas early attaching to the word, accordingly, are those of power or authority and age. The senate, as this word indicates, was originally made up of elderly men, senatores, maiores natu.[105] It would be natural to call them patres because of their authority over the community or of their age. As a designation of rank, pater, excepting in jest, is always plural—an indication that the authority and dignity did not attach to the individual noble but to the senators collectively; they were collectively patres of the community, not individually patres of children, clients or gentes.[106] But when in time a limited number of families monopolized the senate, the term could easily be extended to the entire privileged circle, meaning those with hereditary right to authority over the rest of the community.[107] Though in the sources the patres are generally senators the word is sometimes synonymous with patricii.[108]

Regarding patricius the Romans reasoned with somewhat less care. They were right in deriving it from pater, but they made it signify “descended from,” whereas in fact it means “belonging to,”[109] and designates accordingly the families of the political patres. Probably it was formed after patres began to be applied to the entire governing class—a development which would tend to throw the latter word back to its earlier and narrower sense.

Had the investigation of these words on the part of the ancients rested at this point, all would have been well; but an unfortunate guess as to the derivation of patricii by some unknown antiquarian has brought into the study of the social ranks unutterable confusion lasting down to the present day. This conjecture derives patricius from patrem ciere, making it signify “one who can cite a father.” The attempted etymology, clearly a failure, would perhaps have been harmless, had it not connected itself with the ambiguous word ingenuus. Cincius[110] says, “Those used to be called patricians who are now called ingenui.” Livy has the two ideas in mind when he represents a plebeian orator as inquiring, “Have ye never heard it said that those first created patricians were not beings sent down from heaven, but such as could cite their fathers, that is, nothing more than ingenui? I can now cite my father—a consul—and my son will be able to cite a grandfather.”[111] There should be no doubt as to the meaning of these passages; the antiquarian who conjectured that patricius was derived from patrem ciere, and therefore defined patricii as those who could cite their fathers, meant merely those who had distinguished fathers, and hence were of respectable birth. Ordinarily in extant Latin literature ingenui are simply the freeborn; and in making Appius Claudius Crassus in 368 include in the term the whole body of citizens Livy[112] dates this meaning back to the period before the Licinian-Sextian laws. Elsewhere are indications that in early times ingenui connoted rather respectable birth, and so applied especially to the patricians.[113] The quotations from Cincius and the attempted derivation of patricius from patrem ciere, accordingly, are sufficiently explained without resorting to the strange hypothesis, held by some, that in primitive Rome the patricians were the only men of free birth.

In summarizing the ancient view as to the origin and nature of the patriciate, it will be enough to say that the king chose from the people men who were eminent for the experience of age, for ability and reputation, to sit in his council, the senate; the men so distinguished were called patres, whereas the adjective patricius applied as well to their families—the patricii being those who could cite illustrious fathers.[114] From this point of view the Roman nobility did not differ from that of most other countries.

The plebs,[115] then, were the mass of common freemen, from whom the nobility was differentiated in the way described above. From the ancient point of view they existed from the beginning, prior even to the patriciate itself.

It is equally true that in the opinion of the ancients the plebs were prior to the clients. Cicero[116] records that Romulus distributed the plebs in clientage among the chief men; Dionysius[117] adds that he gave the plebeians liberty to choose their patrons from among the patricians. Thus far their view is in complete accord with modern sociology, which teaches that such class distinctions first arise through the differentiation of freemen. Although aware of the fact that clientage existed in other states which were presumably older than Rome,[118] her historians doubtless felt that the institution could have been legalized in their own country by recognition only on the part of the government. They did not, however, work out a consistent theory of the relation between this class and the plebeians. Certain passages[119] hint, though they do not expressly assert, that at one epoch all the plebeians were in clientage, whereas in their accounts of political struggles the ancient writers uniformly array clients against plebeians almost from the beginning of the state.[120] The latter view is historically better founded.

There must have been various origins of clientage, with corresponding gradations of privilege. The libertini were citizens with straitly limited rights; other clients, certainly the greater part of the class, not only followed their patron to war[121] and to the forum,[122] but also testified and brought accusations in the courts[123] and voted in the assemblies;[124] and when the plebeians gained the right to hold offices the clients were admitted along with them to the same privilege.[125] In his relation with the state, therefore, the ordinary client did not differ essentially from the plebeian.

From the preceding examination of the social ranks it at once becomes evident that the ancients made the populus comprise both patricians and plebeians; in further proof of their view may be cited the following juristic definition: “Plebs differs from populus in that by the word populus all the citizens are meant, including even the patricians, whereas plebs signifies the rest of the citizens, excepting the patricians.”[126] Since the sources generally consider the patricians the descendants of the hundred original senators,[127] they cannot help regarding the populus as composed chiefly of plebeians. In common speech the term, like our word people, often applies to the lower class as distinguished from the higher, in which sense it is interchangeable with plebs; often, too, it signifies the people in contrast with the senate.[128] It is clear, then, as Mommsen has pointed out,[129] that if populus signifies first the whole body of citizens and secondly the commons as distinguished from the nobles, it could not possibly have as a third equivalent the patricians as distinguished from the plebeians. In certain formulae found in addresses, wills, prayers, and oracles, populus is so joined with plebs (populus plebesque or the like) as to suggest the possible meaning patricians.[130] The combination of the two words with senatus,[131] however, reveals at once the overlapping of the terms so joined. In these passages reference is to the modes by which an individual may approach the state; he may address the consuls, praetors, or plebeian tribunes, and in the same way the senate, populus, or plebs.[132] Hence in these formulae, merely representing groups of institutions through which the state is accustomed to act, the word populus does not apply solely to the patricians, and the same may be said of its use in all other connections. We may conclude, therefore, that the Latin language gives no hint of an exclusively patrician populus.

Regarding the populus as made up of patricians, plebeians, and clients, our sources necessarily ascribe the same social composition to its divisions, the three old tribes and the thirty curiae.[133] With perfect consistency they mention repeated enlargements of the populus and of the tribes and curiae, through the admission of masses of aliens, most of whom must have remained plebeian. In fact the sources uniformly represent all the kings as freely admitting conquered aliens without exception to the citizenship and to the tribes and the curiae, even compelling some forcibly to enter this condition.[134]

Might the plebeians and clients belong in a restricted sense to the populus and curiae, and yet remain so far inferior to the patricians as to be excluded from the political meetings of the curiae—the comitia curiata? There can be no uncertainty as to the answer to this question, for the ancient writers agree that the comitia curiata included plebeians and clients as well as patricians.[135] Not only did the lower classes attend this assembly, but they also voted in it, and constituted the majority.[136]

II. The Conventional Modern View

The passages cited above suffice to prove that the ancient writers thought of the populus, and consequently of the comitia curiata, as composed from the earliest times of patricians, clients, and plebeians. Another question, far more difficult, is whether the ancients were right in their view.

As none of the authorities on whom we directly depend for our knowledge of Roman affairs lived earlier than the last century of the republic, they could have had no first-hand acquaintance with primitive Roman conditions, but must have drawn their information concerning the remote past from earlier writers—the annalists—now lost. Niebuhr, who in the opening years of the last century introduced the modern method of investigating Roman history, was convinced that writers of the late republic and of the empire, lacking historical perspective and interpreting their sources in the false light of existing or recent conditions, came to wrong conclusions in regard to the primitive Roman state. He believed he could point to instances of such misunderstanding, and he thought it within the power of a well-equipped modern historian to eliminate much of the error so as to come near to the standpoint of the earlier and more trustworthy annalists.[137]

The position of Niebuhr has in the main proved untenable. Notwithstanding all the source-sifting of modern times, pursued most zealously by the Germans, we are obliged to admit that it is rarely possible with any fair degree of certainty to discover the view of an annalist on a given subject excepting in the few cases in which the citation is by name. We must also admit that though Cicero and the Augustan writers might misinterpret Fabius Pictor in minor details, it is inconceivable that they should fail to understand his presentation of so fundamental a subject as the character of the original populus or the composition of the earliest assembly. Present scholarship accordingly insists that in such weighty matters there was no essential difference of view between earlier and later writers.[138]

These considerations have simplified but not solved the problem. Scholars now agree that no contemporary account of the regal period—ending 509 (?) B.C.—ever existed; and even if it be conceded that the earliest Roman annalist—Fabius Pictor, born about 250 B.C.—had access to traditional or documentary[139] information reaching back to the close of that period, no historian will admit such a possibility for the beginnings of Rome. It follows then that for the origin and character of her earliest institutions Cicero, Livy, and Dionysius, or their sources, have relied wholly on inference from later conditions, in so far as they have not resorted to outright invention. Though with their abundant material they were in a far better position for making such deductions than we are, they lacked the experience and the acute critical method of the moderns.[140] Of the three writers above mentioned—our main sources for the subject under discussion—Cicero was essentially an orator, Dionysius a rhetorician, and Livy, though historian in name, was in spirit rhetorical and dramatic rather than critical. Naturally therefore they or their sources, who on the whole were equally uncritical, made mistakes in the difficult work of drawing inferences as to the history and institutions of the regal period. Such is the view of historians today. It was formerly argued that Dionysius, a rhetorician and a Greek, failed in spite of his twenty-two years of preparation at Rome to understand the spirit and character of the Roman constitution and has therefore been an especial fountain of error;[141] but it is now clear that though in his treatment of early Rome he shows far greater amplitude than Livy and is for that reason proportionally more liable to error in detail, he follows good Roman sources for institutions, and is in this field, with the reservation here mentioned, not essentially inferior to the extant native writers.[142]

Considering the sources untrustworthy and following certain clues which he believed they afforded to a right understanding of the annalists, Niebuhr came to his theory as to the composition of the primitive Roman state. Although he asserts that it was made up of “patrons and clients,”[143] he does not rest satisfied with this view, but proceeds to trace clientage to the following origins, as though in his opinion this institution did not exist from the beginning: (1) some native Siculians perhaps, who were conquered by Latin invaders; (2) strangers settling on Roman territory and choosing a Roman as protector; (3) inhabitants of communities which were obliged to take refuge under Roman protection; (4) manumitted slaves.[144] Logically he goes back to a state made up exclusively of patricians.

He sought evidence for this hypothesis in the scheme of tribal organization of Rome. The primitive city was divided into three tribes, thirty curiae and, as he believed, three hundred gentes. As no one could be a citizen without membership in a gens,[145] and as the patricians alone were active members of the gentes,[146] it must follow that the patricians alone were citizens. It is doubtful whether he would have proposed this hypothesis had it not been for the analogy of the Attic tribal scheme. An imperfect quotation from the lost part of Aristotle’s Constitution of Athens[147] seems to signify that the Athenian state was once divided into four tribes (φυλαί), twelve phratries and three hundred and sixty gentes (γένη). On this authority Niebuhr supposes that the phratry was a group of gentes, and he assumes further that both phratries and gentes were composed exclusively of eupatrids.[148] But the suppositions (1) that there were three hundred and sixty gentes, (2) that the phratry was a group of gentes, (3) that both phratries and gentes contained only eupatrids are contradicted by well known facts. From the earliest times the Greek tribes and phratries included commons as well as nobles. This is true of the Homeric Greeks,[149] and a law of Draco[150] proves that the early Attic phratry comprised both nobles and commons. In historical times all citizens belonged to the phratries; whereas but few were members of the gentes.[151] Most of the gentes were in fact composed of the old landed nobility, though a few, like the Chalkidae and the Eupyridae, were apparently industrial guilds, which had received the privileges of the gentes. So far therefore from supporting Niebuhr in his peculiar view of the Roman gentes and curiae, the Attic analogy militates in every way against him. As his assumption that the curia was a group of ten gentes has already been disproved,[152] it remains only to consider whether the gens was an exclusively patrician institution. From the circumstance that patricianism is not given as an element of Scaevola’s definition, quoted by Cicero,[153] we may at once conclude that in their time plebeians, too, were gentiles. This conclusion is supported by a variety of evidence.

Several plebeian gentes are mentioned, including the Minucia and the Octavia,[154] the Lutatia,[155] the Calpurnia,[156] the Domitia,[157] the Fonteia,[158] the Aurelia,[159] and the Licinia.[160] Some gentes comprised both patrician and plebeian families, as the Cassia,[161] the Claudia,[162] the Cornelia,[163] the Manlia,[164] the Papiria,[165] the Publilia or Poplilia,[166] the Aebutia,[167] and the Servilia.[168] Not only do the sources refer to several plebeian gentes by name, but they clearly imply in other ways the existence of such associations. Livy[169] expresses the patrician sentiment that “it would seem an affront to the gods for honors to be vulgarized and for the distinction between gentes to be confused at auspicated comitia” (by the election of plebeians to the consular tribunate). “The distinction between gentes” can only mean the distinction between patrician and plebeian gentes—an interpretation confirmed by a similar statement of Cicero[170] to Clodius, who had passed by arrogation from a patrician to a plebeian gens: “You have disturbed the sacra and contaminated the gentes, both the one you have deserted and the one you have defiled” (by your admission into it). To our other proofs we may add the consideration that the very expression gentes patriciae[171] implies the existence of plebeian gentes. It is natural then that Varro[172] should make gentilitas a condition of men in general. In asserting that there were a thousand gentile names the same authority[173] must have included those of plebeians, for scarcely a hundred belonging to patricians could have been known to him. By no means the weakest argument in favor of the view here presented is the fact that the laws of the Twelve Tables concerning inheritance, tutelage,[174] etc.—which apply not to the patricians alone but to the whole citizen body—assume that every citizen in full possession of his civil rights belonged to a gens.

A passage often interpreted against the existence of plebeian gentes is Livy x. 8. 9: “Vos solos gentem habere.” In this case a plebeian speaker says the patricians claim that they alone have gens (not gentes). The context shows clearly, however, that gens does not here denote an association but is used in the sense of illustrious birth or pedigree,[175] as is sometimes our word family.[176] Wherever a nobility exists it necessarily lays greater stress on descent than do the people, and in all countries the nobles are in a far better position to keep up family connections than are the commons. Naturally therefore at Rome we hear more of patrician than of plebeian gentes. But in view of all the facts mentioned above there should be no doubt as to the existence of the latter. The result of this discussion is that neither in the composition of the gens nor in its position in the community can support be found for Niebuhr’s assumption of a patrician state.[177]

Other evidence for his hypothesis Niebuhr thinks he finds in a statement of Labeo,[178] that the curiate assembly was convoked by a lictor, the centuriate by a horn-blower; while Dionysius[179] says that the patricians were summoned by name through a messenger, the people by the blowing of a horn. Thus Niebuhr maintains that Labeo and Dionysius agree unequivocally in designating the curiae as the assembly of the patricians. But in fact these two sources refer to the customs of the historical age, when the curiate assembly was ordinarily attended by only three augurs and thirty lictors. Horn-blowing under these circumstances would have been absurd. The summoning of the patricians by their own name and that of their father, on the other hand, proves them too few to compose a popular assembly. These citations therefore are far from supporting his hypothesis. His last and greatest proof is the identification of the lex de imperio, passed by the curiae, with the patrum auctoritas. If these are merely two terms for the same act, the curiae must have been made up of patres. But by establishing the fact that the patrum auctoritas belonged to the senate or to its patrician members, Willems[180] and Mommsen[181] have deprived Niebuhr’s hypothesis of its main prop.

Niebuhr evidently believed that the curiae continued exclusively patrician through the whole republican period.[182] This idea, however, must be dismissed for the following reasons: (1) Our sources agree that in the early republic the plebeians and clients continued to vote in the curiate assembly.[183] (2) The plebeians were in the curiae in 208 B.C., when the first curio maximus was chosen from the plebs.[184] (3) In the time of Cicero thirty plebeian[185] lictors represented the comitia curiata, and gave the votes.[186] (4) Arrogations by plebeians took place in this assembly; in the well-known case of Clodius it must be borne in mind that it was a plebeian who arrogated him. (5) The extinction of the patriciate did not involve the downfall of the comitia curiata.[187] (6) The confirmation by the curiae (lex de imperio) of elections in the centuriate assembly was conceived as a second vote of the community.[188] (7) The resolutions of the comitia curiata are always thought of as resolutions of the populus, which Latin literature nowhere restricts to the patrician body. (8) In all ancient literature there is nowhere the slightest hint of a change in the social composition of the curiae or of the comitia curiata in the whole course of their history. What the ancients believed to be true of either institution at any particular period will hold therefore for its entire history.[189]

Of the arguments in favor of Niebuhr’s hypothesis either added by Schwegler[190] or brought by him into greater prominence, one only demands attention. He reasons that if the plebs were in the curiate assembly, it would be impossible to explain the political advance made by the institution of the comitia centuriata; and the constitutional history of Rome would be reduced to an insoluble riddle. Here we have to deal with a subjective argument—the rejection of sources because they do not agree with a preconceived theory. Arguments of the kind, however, which may be easily invented for the support or overthrow of every imaginable proposition, carry little weight. Besides it is easy to show by analogies from the history of other peoples that the presence of the commons in the primitive assembly does not make the constitutional history of Rome a real enigma. In the primitive German assembly, for instance, were included all the warriors; and yet in the more developed German states were monarchies and aristocracies which gave the people little or no voice in the management of public affairs.[191] The Homeric Greek assembly included all freemen, who, however, had little to do with the government in that period, and still less under the aristocracy which followed.[192] In like manner, although the plebeians attended the comitia curiata and had a majority of votes in this assembly, they could not thereby control the government, for they absolutely lacked initiative.[193] The comitia centuriata, a timocratic institution, elevated the rich and degraded the poor. Here as elsewhere the poor lost by the substitution of aristocracy for kingship; but a real constitutional advance was made in the gradations of privilege, which were based on wealth and which reached like a ladder from the humblest member of the proletarian century to the patrician knight in the sex suffragia.[194] These gradations prepared the way for an ultimate equalization of rights. We conclude, then, that the presence of the commons in the primitive assembly is perfectly compatible with a rational view of constitutional development.

With Schwegler, who grants however reluctantly that the commons were received into the curiae before 208,[195] the theory enters upon its present phase; for the great majority of writers since his time have accepted his view, yet with varying opinions as to the date of the change. Mommsen,[196] who more than any one else has made it clear that, so far back as our sources reach, the populus comprised both patricians and commons, nevertheless assumes that the latter were originally outside the populus but were admitted no later than the beginning of the republic.[197] In his reconstruction of the primitive state he supposes that the citizens were all patres, in so far as they, and they alone, could be fathers; or adjectively patricii, in so far as they, and they alone, had fathers.[198] Added to the citizens and their slaves was a class of persons termed clients, half way between freedom and slavery—a class made up from various origins but chiefly by the conquest of neighbors.[199] These clients belonged, as dependents of the gentes, to the curiae, but had no vote in the assembly.[200] Later the plebs were formed from the clients as the bond which united the latter with their patrons relaxed.[201] The plebs, who were free citizens of inferior rank, came into being at the moment when the patricio-plebeian comitia centuriata acquired the right to express the will of the community.[202]

Although Mommsen knows well the weakness of the evidence offered by earlier writers, he adopts the hypothesis of an original patrician state, without attempting a systematic defence. Here and there in his works, however, he mentions some fact or condition which he would like to have considered proof. The following are the chief passages of this kind:

(1) The lack of right to the auspicia[203] and to the imperium[204] on the part of the plebeians proves that the patriciate was the original citizenship.

But we could as reasonably say, with reference to the auspices, that the two Attic gentes which furnished the sacred exegetes contained the only Athenian citizens.[205] The auspicia, as Soltau[206] has noticed, belonged to the ius honorum, as did also the imperium; hence they were both privileges of the nobility. In brief Mommsen’s reasoning would make a governing nobility everywhere impossible.

(2) The cavalry were patrician; therefore the infantry must have been.[207]

With the same kind of reasoning we could conclude that because in the Homeric age of Greece chariots were used in war by nobles only, the infantry must also have been exclusively noble; whereas we know that the rank and file were common men.[208] That the Roman army before Servius was similarly composed is supported not only by this and many other analogies, but also by the unanimous testimony of the sources. As in other primitive states the warriors belonged to the assembly and were the citizens.

(3) Of the sixteen local tribes named after gentes it can be proved that ten have the names of patrician gentes, and not one name is known to be plebeian. This is evident proof that from the beginning the patriciate was not nobility but citizenship.[209]

His premises prove no more than that at the time when these tribes were instituted the patricians were influential enough to give their names to ten, probably to all sixteen. In all the three cases mentioned, Mommsen reasons that because the patricians alone enjoyed the honors, privileges, and influence usually considered appropriate to a nobility, they must therefore have constituted not the nobility simply but the whole citizen body.

(4) He identifies patres with gentiles and assumes that the primitive state was an aggregate of gentes, thus making the patres the only members of the state.[210]

These are not proofs but unsupported assumptions. The only connection of patres with gentes given in Latin literature is in the well-known phrases patres maiorum and minorum gentium; and Cicero[211] makes it clear that these patres were senators. The phrase means senators from, or belonging to, the greater or lesser gentes. Furthermore it has been proved (1) that the patricians were not the only gentiles,[212] (2) that the curia, and hence the state, was not an aggregation of gentes.[213]

(5) We are informed, says Mommsen, (a) that the body of full Roman citizens consisted originally of a hundred families, whose fathers, the patres, regarded more or less concretely as the ancestors of the individual gentes, composed the senate, and together with them their descendants, the patricians, made up the citizen body; or expressed in other words (b) patrician originally meant just what was afterward included under the term ingenuus.[214]

For (a) Mommsen cites those passages by which it has been shown[215] that the Romans looked upon the original hundred senators as the fathers neither of the “citizen body” nor of the “full citizens,” but of the nobility. His statement of the case is directly contradicted by the authorities he quotes. As regards (b) it has been sufficiently proved[216] that ingenuus when made equivalent to patricius most naturally signifies not “of free birth,” but “of respectable, noble birth.”

Most scholars have wisely avoided bringing the myth of the asylum[217] into the argument. Pellegrino,[218] however, identifies the refugees at that place with the entire plebeian body. As the asylum was not an Italian but a Greek institution,[219] the story connected with it is doubtless a myth. It seems to have been invented by the Greeks of southern Italy, most probably in the fourth century B.C. At that time they began to view with alarm the southward advance of the Romans, and to disparage them accordingly by falsifications representing their origin as obscure and disreputable.[220] Similar calumnies against other peoples were concocted by their Greek enemies.[221] Notwithstanding the fact that the story had not even a kernel of historical truth the Romans accepted it with more or less modification[222] and used it to some extent for partisan objects.[223] They could not oppose the plebs to patricians as foreigners to natives, however, for (1) they supposed that plebeians as well as patricians participated in the original settlement of Rome, (2) they derived patrician as well as plebeian families from foreign sources.[224] We are warranted in concluding that in adopting the Greek myth of the asylum they looked upon it as a cause of increase in the plebeian population without finding in it the origin of the plebeian class.

To the theory of an exclusively patrician populus the following objections may be summarily urged: (1) It is opposed by the unanimous testimony of the ancient authorities. (2) It rests upon a wrong explanation of the words patres, patricii, as designations of the nobles. (3) It is further propped up by reasons so feeble as to testify at once to its weakness, the more substantial basis having been overthrown partly by Mommsen himself. (4) The number of patricians is too small for the theory.[225] (5) It ignores the meaning of the word plebs, which evidently signifies “the masses,” in contrast with the few nobles, and hence could not apply to a class gradually formed by the liberation of clients, or by the admission of foreigners. No one who holds the theory has attempted to show what these liberated clients were called when they were but few compared with the patricians—before they became “the multitude.” (6) It is contradicted by everything we know of Rome’s attitude towards aliens. So far back as our knowledge reaches, she was extremely liberal in bestowing the citizenship, even forcing it upon some communities. Only when she acquired the rule over a considerable part of Italy did she begin to show illiberality in this respect. Down to 353 the citizenship thus freely extended included the right to vote.[226] (7) It assumes the existence of a community politically far advanced yet showing no inequalities of rank among the freemen—a condition outside the range of human experience. It aims to explain the origin of the social classes on purely Roman ground, ignoring the fact that distinctions of rank are far older than the city, and exist, at least in germ, in the most primitive communities of which we have knowledge.[227]

III. The Comparative-Sociological View

As social classes belong to all society,[228] they cannot be explained by the peculiar conditions of any one community. The only scientific approach to this subject is through comparative study; the inferences of the ancient historians relative to primitive Rome are not to be displaced by purely subjective theories, but are to be tested by comparison with conditions in other communities of equal or less cultural advancement.

Distinctions of rank depend ultimately upon physical, mental, and moral inequalities,[229] which differentiate the population of a community into leaders and followers.[230] The exhibition of physical strength and skill on the part of young men and of knowledge and wisdom on the part of the elders are often “the foundation of leadership and of that useful subordination in mutual aid which depends on voluntary deference.”[231] In an age in which men were largely under the control of religion the possession of an oracle or skill in divination or prophecy might contribute as much to the elevation of an individual above his fellows.[232] Leadership, once obtained, could display and strengthen itself in various ways. In primitive society the strong, brave, intelligent man was especially qualified to take command in war. Success brought the chief not only renown but a large share of the booty and in later time acquired land. The same result might be obtained by other means than by war;[233] but in any case wealth and influence inherited through several generations made nobility.[234] Primarily grounded on ability, wealth, and renown, this preëminence was often heightened by a claim to divine lineage or other close connection with the gods.[235]

There was evidently a stage of development—before the association of the nobles into a class—in which chieftains alone held preëminence. This condition is common in primitive society, as among the American Indians.[236] Also among the Germans, who had advanced somewhat beyond this stage, each chief or lord appears to have been noble “less with reference to other noblemen than with reference to the other free tribesmen comprised in the same group with himself.”[237] From Brehon law we infer that the Irish lords were individually heads of their several groups of kinsmen or of vassals;[238] and in Wales the nobles were a hierarchy of chieftains.[239] As soon as leadership became hereditary there arose noble families, in which the younger members were often sub-chieftains;[240] and finally through intermarriage among these families, as well as through the discovery of common interests, the nobles associated themselves into a class.

Among the ancient Germans,[241] the Greeks of the Homeric age,[242] and in some early Italian states[243] certain families had become noble, and others were on the way to nobility. For ancient Ireland the entire process can be followed. A common freeman enters the service of some chief, from whom he receives permission to use large portions of the tribe land.[244] By pasturing cattle, he grows wealthy, becomes a bo-aire (cow-nobleman) and secures a band of dependents. Supported by these followers, he preys upon his neighbors and, if successful, becomes in time a powerful noble.[245] After “a certain number of generations” he can no longer be distinguished from the blooded nobility.[246] Here is an instance of a common freeman’s becoming noble through service to a chief. In like manner among the Saxons who had conquered England the ceorl who “thrived so that he had fully five hides of land,” or the merchant who had “fared twice over the wide sea by his own means,” became a thane; “and if the thane thrived, so that he became an eorl, then was he henceforth worthy of eorl-right.”[247] “The thanes were the immediate companions of the king—his comitatus—and from their first appearance in English history they took rank above the earlier nobility of Saxon eorls, who were descended from ancient tribal chiefs. Thus the thanes as a nobility of newly rich corresponded to the cow-noblemen of an earlier time.”[248] In the way just described many rose from the lower ranks to nobility. In fact, eminent authorities assert that the inferior nobles, especially of the middle age, were more often of servile than of free origin, as the common freemen were inclined to think it degrading to be seen among the comites of a chief.[249]

It has now been sufficiently established that even in the tribal condition people were differentiated into social ranks. We have traced the beginning of nobility to leadership and have found, in both ancient and mediaeval society, new noble families forming by the side of the old. Social distinctions were well developed long before the founding of cities. When a community, whether a tribe or a city, is far enough advanced to begin the conquest of neighbors, “it has already differentiated into royal, noble, free, and servile families.”[250] This was true of Sparta. In her “the conquerors nevertheless, notwithstanding great differences among themselves, remain sharply separated in social function from the conquered.... The conquerors became a religious, military, and political class, and the conquered an industrial class.”[251] Even in the case of Sparta, however, which is perhaps our best example of the exclusiveness of a ruling city, there is evidence of mingling between the conquering Spartans and the conquered Laconians before the former became exclusive.[252] In like manner there was much mixing of the invading “Aryans” with the natives of India—the more intelligent of the natives rising to the higher classes and the less gifted of the invaders sinking to the lower—before the crystallization of the castes.[253] We find the same mingling of conquerors and conquered in varying degrees in ancient Ireland,[254] in England under the Normans,[255] and throughout the Roman empire in the period of Germanic settlements.[256] It becomes doubtful, therefore, whether a nobility was ever formed purely by the superposition of one community upon another. The effect of conquest was rather to accentuate existing class distinctions, and by a partial substitution of strangers in place of native nobles to stir up antagonism between the classes. Even where the differences between the social ranks seem to be racial, it would be hazardous to resort to the race theory in explanation; for such a condition could be produced in the course of generations by different modes of life, education, nurture, and marriage regulations of the nobles and commons respectively.[257]

The study pursued thus far will enable us to understand how there came to be social classes at Rome before the beginning of conquest. But for a long time after the Romans began to annex territory we may seek in vain for a distinction between conquerors and conquered, like that which we find in Laconia. We are forbidden to identify the plebs with the conquered and the patricians with the conquerors by many considerations mentioned above—for instance, by tradition,[258] by the derivation of several patrician gentes from various foreign states,[259] by the fewness of the patricians,[260] and by the fact that the latter show no differentiations of rank, such as we find among the conquering Spartans; they were not a folk but a nobility pure and simple. We are to regard Rome’s early annexations of territory and of populations not as subjugations, but as incorporations on terms of equality. The people incorporated were of the same great folk, the Latins, or of a closely related folk, the Sabines. Accordingly they were not reduced to subjection, but were admitted to citizenship, to the tribes and the curiae, and their nobles were granted the patriciate.[261] Only communities of alien speech, like the Etruscan, or distant Italian communities like the Campanian, were ordinarily given the inferior civitas sine suffragio; and this restricted citizenship does not appear in history before the middle of the fourth century B.C.

The analogies offered in this chapter, by proving that the conditions they illustrate are possible for early Rome, tend to confirm the authority of the sources. By similar comparative study it would be practicable to illustrate in detail and to corroborate the statements of ancient writers as to the organization of the plebs, as well as of the patricians, in tribes and curiae, the participation of the clients and plebeians in war and politics, and the deterioration of the free commons through the strengthening of the nobility—all of which are rejected by eminent modern historians, who merely imagine them incompatible with primitive conditions or with a rational theory of constitutional development. The inquiry has been pursued far enough, however, to indicate that from a comparative-sociological point of view the conception of early Rome handed down to us by the ancients is sound and consistent, and that the method of subjective reconstruction of history introduced by Niebuhr and still extensively employed by scholars is unscientific.

I. Roman Society: Niebuhr, B. G., Römische Geschichte, i. 321 ff.; English, 158 ff.; Schwegler, A., Römische Geschichte, I. bk. xiv; Wigger, J., Verteidigung der nieburschen Ansicht über den Ursprung der röm. Plebs; Peter, C., Geschichte Roms, i. 31-3; Verfassungsgeschichte der röm. Republik; Studien zur röm. Geschichte mit besonderer Beziehung auf Th. Mommsen; Ihne, W., History of Rome, i. 109 ff.; Early Rome, ch. ix; Asylum of Romulus, in Classical Museum, iii (1846). 190-3; Forschungen auf dem Gebiete der röm. Verfassungsgeschichte (also translated into English by Heywood); Lange, L., Röm. Alt. i. 414 ff., and see indices s. Patres, Plebs, etc.; Mommsen, Th., History of Rome, bk. 1. chs. v, vi; Röm. Forschungen, i. 131-284; Röm. Staatsrecht, iii. 127 ff., and see indices s. Patres, Plebs, etc.; Abriss d. röm. Staatsrechts, 3 ff.; Herzog, E., Geschichte und System der röm. Staatsverfassung, i. 32 ff.; Meyer, E., Geschichte des Altertums, ii. 515-7, 521 f.; v. 141-3; Plebs, in Handiwörterb. d. Staatswiss. vi. 98-106; Niese, B., Grundriss der röm. Geschichte, 36 f.; Ampère, J. J., Histoire Romaine à Rome, i. 440 ff.; ii. 15 ff.; Zöller, M., Latium und Rom, 163; Ridgeway, W., Early Age of Greece, i. 254 ff.; Oberziner, G., Origine della plebe Romana; Conway, R. S., I due strati di populazione Indo-Europea del Lazio e dell’Italia antica, in Rivista di storia antica, vii (1903). 422-4; Hüllmann, K. D., Ursprünge der röm. Verfassung durch Vergleichungen erläutert; Mispoulet, J. B., Institutions politiques des Romains, i. 14 ff.; Greenidge, A. H. J., Roman Public Life, 4 ff.; Abbott, F. F., Roman Political Institutions, 6 ff.; Naudet, M., De la noblesse et des récompenses d’honneur chez les Romains; Hoffmann, Patricische und plebeiische Curien; Pelham, H., Roman Curiae, in (English) Journal of Philology, ix (1880). 266-79; Soltau, W., Altröm. Volksversamml. 58 ff., 625 ff.; Bernhöft, F., Staat und Recht der röm. Königsz. 145 f.; Genz, H., Das patricische Rom; Clason, D. O., Kritische Erörterungen über den röm. Staat; Fustel de Coulanges, Ancient City, bk. iv; Pellegrino, D., Andeutungen über den ursprünglichen Religionsunterschied der röm. Patricier und Plebeier; Hennebert, A., Histoire de la lutte entre les patriciens et les plébeiens à Rome; Bloch, L., Die ständischen und sozialen Kämpfe in der röm. Republik; Wallinder, De statu plebeiorum romanorum ante primam in montem sacrum secessionem quaestiones; Neumann, K. J., Grundherrschaft der röm. Republik, Bauernbefreiung und Entstehung der servianischen Verfassung; Holzapfel, L., Die drei ältesten römischen Tribus, in Beiträge zur alten Geschichte, i (1902). 228-55; Heydenreich, E., Livius und die röm. Plebs, in Samml. gemeinverständlicher wissenschaftlicher Vorträge, xvii (1882). 581-628; Christensen, H., Die ursprüngliche Bedeutung der Patres, in Hermes, ix (1875). 196-216; Staaf, E., De origine gentium patriciarum commentatio academica; Terpstra, D., Quaestiones literariae de populo, etc., ch. i; Köhm, J., Altlateinische Forschungen, ch. i; Bröcker, L. O., Untersuchungen über die Glaubwürdigkeit der altröm. Verfassungsgeschichte, 3 ff.; Botsford, G. W., Social Composition of the Primitive Roman Populus, in Political Science Quarterly, xxi (1906). 498-526 (the present chapter is in the main a reproduction of this article); Some Problems connected with the Roman Gens, ibid, xxii (1907). 663-92.

II. Comparative View: Achelis, Th., Moderne Völkerkunde, deren Entwickelung und Aufgaben, (Stuttgart, 1896) 406 ff.; Ammon, O., Die Gesellschaftsordnung und ihre natürlichen Grundlagen, (Jena, 1895) Teil i; D’Arbois de Jubainville, La civilisation des Celtes et celle de l’épopée Homerique, (Paris, 1899) ch. ii; Arnd, K., Die materiellen Grundlagen und sittlichen Forderungen der europäischen Kultur, (Stuttgart, 1835) 444 f.; Barth, P., Die Philosophie der Geschichte als Sociologie, i. (Leipzig, 1897) 382; Bastion, A., Der Mensch in der Geschichte, iii. (Leipzig, 1860) 323-38; Allerlei aus Volks- und Menschenkunde, ii. (Berlin, 1888) 138-54; Rechtsverhältnisse bei verschiedenen Völkern der Erde, (Berlin, 1872) 8 ff.; Bluntschli, J. K., Theory of the State, (2d ed. from the 6th German: Oxford 1892) bk. II. chs. vi-xiii; Bordeau, L., Le problème de la vie: Essai de sociologie générale, (Paris, 1901) 95; Brunner, H., Grundzüge der deutschen Rechtsgeschichte, i (Leipzig, 1901); Bücher, C., Industrial Evolution, ch. ix; Buchholz, E., Homerische Realien, II. bk. i (Leipzig, 1881); Caspari, O., Die Urgeschichte der Menschheit, I. bk. ii. ch. 3 (Leipzig, 1877); Cherbuliez, A. E., Simples notions de l’ordre social à l’usage de tout le monde, (Paris, 1881) ch. vi; Combes de Lestrade, Éléments de sociologie, (Paris, 1896) bk. vi; Cooley, C. H., Human Nature and the Social Order, (New York, 1902) ch. ix (analysis of leadership); Craig, J., Elements of Political Science, i. (Edinburgh, 1814) 183-95; Duchesne, L., La conception du droit et les idées nouvelles, (Paris, 1902) 36; Demolins, E., Comment la route crée le type social, i (Paris); Farrand, L. F., Basis of American History, (New York, 1904) see index s. Social organization; Featherman, A., Social History of the Races of Mankind, ii. (London, 1888) see indices s. Classes; Thoughts and Reflections on Modern Society, (London, 1894) 291-6; Frazer, J. G., Lectures on the Early History of the Kingship (New York, 1905); Freeman, E. A., History of the Norman Conquest of England, iv (New York, 1873); Frohschammer, J., Ueber die Organisation und Cultur der Menschlichen Gesellschaft, (Munich, 1885) 84 f.; Funck-Brentano, Th., Civilisation et ses lois, morale sociale, (Paris, 1876) chs. v-viii; Fustel de Coulanges, Ancient City, bk. iv; De l’inégalité du wergeld dans les lois Franques, in Revue historique, ii. (1876) 460-89; Giddings, F. H., Principles of Sociology, (New York, 1896) bk. III. chs. iii, iv; Ginnell, L., Brehon Laws, a Legal Handbook, (London, 1894) chs. iv, v; Grave, J., L’individu et la société, (3d ed. Paris, 1897) ch. ii; Gumplowicz, L., Rassenkampf (Innsbruck, 1883); Harris, G., Civilization considered as a Science, (new ed. New York, 1873) ch. vii; Hellwald, Fr. von, Culturgeschichte in ihrer natürlichen Entwickelung bis zur Gegenwart, 2 vols. (Augsburg, 1876); Hirt, H., Indogermanen, 2 vols. (1905, 1907); Hittell, J. S., History of the Mental Growth of Mankind in Ancient Times, (New York, 1893) i. 228 f.; ii. 37, 72; Hodgkin, Italy and her Invaders, (2d ed. Oxford, 1892, 1896) ii, iii; Jenks, E., History of Politics (London, 1900); Kaufmann, G., Die Germanen der Urzeit (Leipzig, 1880); Krauss, F. S., Sitte und Brauch der Südslaven (Vienna, 1885); Lepelletier de la Sarthe, Du système social, ses applications pratiques à l’individu, à la famille, à la société, (Paris, 1855) i. 329 ff.; Letourneau, Ch., Sociology based on Ethnography, (new ed. London, 1893) chs. vi-viii; Maine, H. S., Lectures on the Early History of Institutions, (London, 1875) ch. v; Mismer, Ch., Principes sociologiques, (2d ed. Paris, 1898) 63 ff.; Müller-Deecke, Die Etrusker, 2. vols. (Stuttgart, 1877); Rhys, J. and Brynmor-Jones, The Welsh People (New York, 1900); Ridgeway, W., Early Age of Greece, i (Cambridge, 1901); Ross, E. A., Social Control (New York, 1901); Rossbach, J. J., Geschichte der Gesellschaft, 3 vols. (1868); Schrader, O., Reallexikon der indogermanischen Altertumskunde, (Strassburg, 1901) 802-19; Schröder, R., Lehrbuch der deutschen Rechtsgeschichte (4th ed. Leipzig, 1902); Schurtz, H., Urgeschichte der Kultur, (Leipzig, 1900) ch. ii; Seebohm, F., Tribal System in Wales (New York, 1895); Tribal Custom in Anglo-Saxon Law (New York, 1902); Seeck, O., Geschichte des Untergangs der antiken Welt, I. (2d ed. Berlin, 1897) bk. II. chs. i, iv; Seymour, Life in the Homeric Age, (New York, 1907) 106 f; Skeat and Blagden, Pagan Races of the Malay Peninsula, i (New York, 1906) 494-520; Spencer, H., Principles of Sociology, II. (New York, 1883) chs. iv-viii; Tarde, G., Laws of Imitation, trans. from the French, (New York, 1903) 233 ff.; Traill, H. D., Social England, i (New York, 1901); Tribhovandas, Hindu Castes, in Journal of the Anthropological Society of Bombay, v (1899-1901). 74-91; Vinogradoff, P., Growth of the Manor (New York, 1905); Waitz, Th., Anthropologie der Naturvölker, ii. (Leipzig, 1860) 126-67; iii. (1862) 119-28; v. (1870) 112 ff.

CHAPTER III
THE THIRTY-FIVE TRIBES

That among the Romans the conception of property first attached to movable objects is attested by the words “pecunia” and “mancipatio.”[262] There was probably a period during which the citizens cultivated the lots of arable land assigned them by the state without regarding these holdings as property either public or private. In view of the well-established fact that the gens was a relatively late institution, we should for this remote period exclude the idea of gentile tenure.[263] The land was distributed among the families according to tribes and curiae; and when the idea of ownership extended to the soil, it took the form of family ownership of the ager privatus and state ownership of the public domain.[264]

The condition of tenure anterior to the conception of property in land left little trace of itself in the language and institutions and absolutely none in tradition. The sources declare that family ownership existed in Rome from her foundation as well as in her earliest colonies—a view confirmed by the comparative study of language.[265] Each family, they assume, held two iugera—the heredium[266]—or we may more correctly say, at least two iugera.[267] This small lot has generally been explained[268] as the private landed property of the individual, in contrast with the public land and with the common land of the gens, and thus it is taken as evidence of a condition prior to the extension of private ownership to the arable fields. Should we grant this to be the true explanation, we might still assume that public and gentile tenure had developed into private ownership of arable land long before Servius, or that Servius himself converted the fields into private holdings. For the second alternative we could find apparent support in the sources, which have much to say of the distribution of land among the citizens by Servius.[269] For the continued absence of private ownership after the Servian reforms not even the shadow of an authority can be found.

But the explanation of heredium given above is by no means necessary; in fact the sources regard it not as the only private land, but rather as the smallest share allotted to any citizen, the rich and noble possessing more.[270] While accordingly the wealthy man owned many iugera, the poor man, limited to his heredium, was obliged to earn part of his living by labor as a tenant or as a wage-earner in the field of his rich neighbor;[271] and in the early colonies the bina iugera were granted on the same aristocratic principle. If this is the true explanation of heredium, the strongest argument in support of the theory of public ownership at Rome in the late regal period is taken away; we must either abandon the theory or relegate it to a time far anterior to the Servian reforms. Mommsen’s assumption[272] that the sixteen oldest rural tribes were instituted some time after the city tribes by the division of gentile lands is untenable on other grounds. The gens which gave its name to the tribe could not have owned all the land in the tribe; for in that case all but the sixteen gentes would have been landless. Again, assuming, as he does, that all the land belonged to the gentes, which he supposes to have been exclusively patrician, we should be forced to conclude that the division left the plebeians landless. And further, if we bear in mind that the gens developed from the family, we must also believe that the undivided gentile land was once a family estate, which according to Roman usage had to be registered in some tribe, even if the land of the gens was not so registered. Mommsen’s theory proves therefore not only to be unsupported by the sources but actually unthinkable. In conclusion we may safely say that though some land remained public, and though the gens after it had come into existence owned some common land, individual, or at most family,[273] ownership was in full force in the earliest times of which we have knowledge.

The clearest and most detailed account of the origin of the Servian tribes is given by Dionysius iv. 14. 1 f.: “When Tullius had surrounded the seven hills with one wall, he divided the city into four parts, and giving to the parts the names of the hills—to one Palatina, to another Suburana, to the third Collina, and to the fourth Esquilina—he made the city to consist of four tribes, whereas up to that time it had comprised but three.... And he ordained that the men who lived in each of the four parts should not change their abode or give in their census elsewhere. The enlistment of soldiers also and the collection of taxes, which they were to pay individually to the treasury for military and other purposes, were distributed no longer among the three gentile tribes but among the four local tribes instituted by him.... [15. 1:] And the whole country he divided, as Fabius says,[274] into twenty-six parts, also called tribes, adding to them the four city tribes; but Venonius is authority for thirty-one rural tribes, which with those of the city would complete the thirty-five of our own time. Cato, however, who is more trustworthy than either of these two, says that all the tribes in the time of Tullius amounted to thirty, though he does not separate the number of parts” (into urban and rural).

A great variety of opinion has arisen regarding the original number of the Servian tribes. Niebuhr[275] believed that Servius created in all thirty, afterward reduced by unfortunate war with the Etruscans to twenty. This view found supporters but was refuted by Huschke.[276] Those who rejected it generally agreed that Servius divided the city into four tribes and the country into districts, regiones, pagi.[277] Mommsen[278] gave a new phase to the theory of the subject by assuming that the four so-called city tribes, which all the sources agree in ascribing to Servius,[279] included the country as well as the city. According to this hypothesis Alba[280] and Ostia,[281] for instance, belonged to the Palatine tribe. His opinion has found wide acceptance.[282] Afterward changing his mind, he asserted that the four urban tribes were confined within the pomerium—a view which now seems to be established beyond doubt.[283] With this final position of Mommsen the creation of theories as to the number and limitations of the Servian tribes has not been exhausted; for against the view that Servius instituted only the four urban tribes may be placed that of Pais,[284] who assigns their origin to the censors of the year 304. The theory of Pais implies that the sixteen rural tribes which bore gentile names were far older than the four urban tribes.

Light will be thrown on this obscure subject by an inquiry into the relation of the sources to one another. It seems certain that Fabius derived his information concerning the tribes and the entire centuriate organization from the “discriptio centuriarum”—a document in the censors’ office. Though ascribed to Servius Tullius as author,[285] it set forth the centuriate system as it existed in reality before the reform—that is in the time of the first war with Carthage.[286] It was this late form of the centuriate organization which Fabius had in mind. He must have been prevented, however, from ascribing to Servius the institution of all the thirty-three tribes then existing, by the recollection that two tribes were added as recently as 299 from territory too far from Rome to have formed a part of her domain under Servius; and perhaps the curiate organization led him to favor the number thirty. He made Servius the author of thirty tribes, accordingly, in spite of the fact that this number was not reached till 318. His error is not more absurd than the ascription to Servius of the whole centuriate organization as it stood at the opening of the First Punic War, or the assumption that in the first Servian census were enrolled eighty thousand men fit for military service.[287] Cato, who also states the original number as thirty, without separating them into rural and urban,[288] may have been influenced by Fabius, though it is likely that he drew from the same source. Vennonius in making Servius the author of all thirty-five tribes but slightly exceeds the absurdity of earlier writers.[289] Evidently Fabius and Cato were the sources for all future annalists. While depending on them, Varro seems to have noticed the error of ascribing twenty-six rural tribes to Servius, as there were but seventeen of this class before 387. To avoid the difficulty and at the same time to retain the Fabian number, he supposed that the country districts of Servius were not yet tribes but the regiones from which the tribes were afterward formed[290]—a superficial explanation in the true Varronian style.[291] Following Varro, however, later authorities generally speak of the four urban tribes of Servius without mentioning those of the country.[292] So Dionysius, after referring to the four city tribes, proceeds to describe their character and functions, as though these were all the tribes then existing.[293] Thus far he depends upon Varro. Fortunately, however, he gained from Fabius the information that there were also twenty-six rural tribes, his description of which[294] is slightly troubled by the Varronian notion that these country districts were not so much tribes as regiones, πάγοι, but which served all the purposes of tribes including the taking of the census.[295]

The various contradictory statements of the ancients regarding the original number of Servian tribes can now be appreciated at their respective values. In the course of the discussion it has become evident, too, that Fabius and Cato, the sources of later annalists, had no tenable ground for their assumption of thirty original tribes. Had they examined the records, perhaps the succeeding parts of their own chronicles, they would have found that before 387 there could have been only twenty-one tribes in all.[296] A less certain indication of the admission of one or possibly two tribes still earlier in the republic may have existed;[297] but here we reach the extreme limit of their knowledge. Any investigation of the number in the regal period, whether by the ancients or by the moderns, must rest not upon contemporary records but upon inference pure and simple. We may inquire, accordingly, whether the view of Mommsen[298] and Meyer[299] that the four city tribes were created first and existed for a time before the institution of the rural tribes, having no trustworthy foundation in the sources, can be deduced from our knowledge of the general conditions of the time. We must by all means avoid the supposition of Mommsen[300] that in the time of Servius there was no private property in land outside of the city.[301] If then we bear in mind two points which Mommsen has himself established, (1) that the local tribe was an aggregate of private estates,[302] (2) that the four urban tribes of Servius were limited to the city,[303] we must conclude that in the time of Servius the country estates were registered in rural tribes—in other words that Servius instituted rural as well as urban tribes.[304] The view of Meyer that all the citizens lived in the city and the dependents in the country[305]—which would afford a ground for assuming the urban tribes to have been earlier than the rural—has no basis either in institutions or in tradition. If originally the country was all-important,[306] and if at the dawn of history we find the country and city politically equal, as is actually the case, we have no motive for the insertion of an intermediate stage in which the city was all-important. There was indeed a tendency toward the concentration of political power within the city, but it did not advance beyond the equalization of city and country.[307] To maintain Meyer’s view we should be obliged to complicate the early history of Rome with two revolutions—one by which the city gained supremacy over the country, and the other in which the supremacy was lost. It is mainly to defend the early history of the comitia, and of the constitution in general, against this complication that the present discussion of the early land tenure and of the origin of the Servian tribes is offered.

The original number of tribes, as has been stated, is unknown. It was increased by the acquisition of territory. Possibly the annalists found an obscure trace of the admission of the sixteenth rural tribe—the Claudia—in 504. To that year Livy assigns the coming of Attius Clausus with his host of clients, who were formed into the Claudian tribe.[308] Wissowa[309] suggests that the immigration of the Claudian gens, the date of which did not appear in the original tradition,[310] was arbitrarily assigned to the year in which was recorded the admission of the tribe. This conjecture is supported by the situation of the Claudia, which would place it among the latest of the twenty.

With more confidence we may assign the admission of the seventeenth rural tribe—the twenty-first in the entire list—to 495.[311] It must have been the Clustumina.[312] We are certain that there were only twenty-one till 387, when four new tribes were formed, bringing the number up to twenty-five.[313] The twenty-sixth and twenty-seventh were admitted in 358,[314] the twenty-eighth and twenty-ninth in 332,[315] the thirtieth and thirty-first in 318,[316] the thirty-second and thirty-third in 300[317], the thirty-fourth and thirty-fifth in 241.[318] To the year 90 that number is known to have remained unchanged, and the evidence of a temporary increase during the Social War is obscure. On this point Appian[319] states that “the Romans did not enroll the newly admitted citizens in the existing thirty-five tribes for fear that, being more numerous, they might outvote the old citizens in the comitia; but by dividing them into ten parts (?) they made new tribes, in which the new citizens voted last.” This view of an increase in number is confirmed by a statement of Sisenna[320] as to the creation of two new tribes at about that time. Velleius[321] however informs us that the new citizens were enrolled in eight tribes. In the object of the arrangement he agrees with Appian. Next he mentions the promise of Cinna to enroll the Italians in all the tribes. From the connection we should naturally infer that in the opinion of Velleius the new citizens were enrolled before Cinna in eight old tribes; and yet it is difficult to understand how the assembly could be persuaded to visit any group of rural tribes with this disgrace and political disability.[322] As the authority of Sisenna, if not that of Appian, compels us to accept the fact of new tribes, it is better to interpret Velleius in that light.[323] We may suppose then that the eight tribes which he mentions were provided for by the Julian law of 90; and we must accept the statement of Sisenna that in 89 the Calpurnian law “ex senati consulto” created two other new tribes, in which were to be enrolled the citizens admitted under this law. Thus we could account for the ten (?) new tribes mentioned by Appian. As regards the Lucanians and the Samnites, who held out obstinately against Rome, the same historian[324] states that they were respectively enrolled in tribes, as in the former instances. He does not inform us, however, that for this purpose other new tribes were instituted. At all events there seems to be no essential disagreement among our sources; and we have no reasonable ground for doubting an increase, though we may remain uncertain as to the number added.[325]

The arrangement was only temporary. In 88 Sulpicius, tribune of the plebs, carried a law containing a provision for the distribution of the new citizens and the libertini among all the thirty-five tribes.[326] His plebiscite was annulled by the senate on the ground that it had been passed by violence;[327] but the provisions contained in it were afterward legalized by a senatus consultum, and it was finally carried into effect by Cinna as consul in 84.[328] This settlement of the question was approved by Sulla[329] for all the Italians excepting the Marsians and the Paelignians, who were enrolled in one tribe—the Sergia.[330]

The nature of the tribes may be inferred from their object. The intention of the organizer was to introduce the Greek military system, comprising heavy and light infantry, in which the kind of service to be performed depended upon financial ability to provide equipments.[331] Seeing that a classification of citizens with respect to property was necessary for this purpose, Servius instituted the tribes as a basis for the census. That they contained the ager privatus only is indicated by the exclusion from them of the Capitoline and Aventine hills.[332] Their local character is established by the concurrent testimony of ancient writers.[333] Yet even in the beginning they could but roughly be described as districts, for they excluded all public land and all waters and waste places claimed neither by individuals nor by the government. They retained the approximate character of districts so long only as the territory of annexed communities continued to be formed into new tribes. The process came to an end in 241; and it was as early at least as this date that the Roman colonies, not originally in the tribes, were incorporated in them.[334] Thereafter the annexation of new territory tended more and more to render the tribes geographically indeterminate.[335] The process was far advanced by the admission (90-84) of the Latins and Italians with their lands to the existing tribes,[336] which were further enlarged in the imperial period by the incorporation of provincial communities.[337] As consisting of lands, though no longer necessarily adjacent, they were still considered local.[338]

The tribe was also a group of persons; in fact the word applies far more frequently to persons than to territory.[339] During the early republic a considerable degree of harmony was maintained between the two aspects of the institution (1) possibly by a restriction on the transfer of residence,[340] (2) by the change in membership from tribe to tribe, through the censors, on the basis of a transfer of domicile, (3) by the assignment of new citizens to the tribe in or near which they had their homes, (4) by the creation of new tribes for new citizens who did not live in or near the existing tribes. This harmony experienced its first serious disturbance through the enrolment of the landless, irrespective of domicile, in the urban tribes in 304,[341] but continued to such a degree that a hundred years later the rural voters generally still resided in their own tribes.[342] In the last century of the republic the personal tribe, emancipated from the local, depended solely on inheritance and the will of the censors.[343]

The original composition of the personal tribe is determined by its purely military object. It comprised accordingly those only who were liable to service in war. From the early Roman point of view those citizens were qualified who found their livelihood in agriculture.[344] Not all landowners were enrolled in the tribes; for Latin residents,[345] freedmen,[346] widows and orphans,[347] all of whom might possess land, lacked membership. Those proprietors, too, were excluded whom the censors assigned to the aerarii as a punishment. Tribesmen were all the other landowners—adsidui[348] et locupletes[349]—together with the male descendants of military age under their potestas.[350]

Another object of the tribes, referred to Servius by our sources, was the collection of taxes.[351] We know that they afterward served this purpose; and the ancient writers, who could have had no direct knowledge of the intentions of Servius but who assigned to him without hesitation all the later developments of his organization, were in this case especially misled by their false derivation of tributum from tribus or vice versa.[352] A brief study of the facts in the case will prove their inference to be wrong. The most obvious consideration is that had Servius intended the tribes for the levy of taxes as well as for military purposes, he would have included all who were subject to taxation as well as all who were liable to service in the army, whereas in fact he admitted those only who were to serve. It is to be noted that primitive Rome imposed no regular direct taxes on the citizens in general. Every man equipped himself for war even after the introduction of the phalanx;[353] doubtless at first the knights provided their own horses;[354] and in short campaigns the soldiers carried their provisions from their own farms.[355] Fortifications and public buildings were erected by forced task-work. The king supported himself partly by gifts from his subjects and partly from the public property, including land.[356] Other early sources of revenue were tolls levied for the use of harbors, boundaries, temples, bridges, roads, sewers, and salt works.[357] In time the idea arose, too, that the person who did not perform military service should help with his property in the defence of the country. The estates of widows and orphans were accordingly taxed to support the horses of the knights.[358] Those men, also, who were exempt from service because they possessed no land[359] and yet had other property were required to pay on it a regular tax. From this connection with the public treasury (aerarium) they were termed aerarii. This class comprised shopkeepers and merchants. Sometimes the censors assigned to it as a punishment men who owned land. The fact that such persons were at the same time removed from their tribes is sufficient proof that the aerarii were originally outside these associations.[360] The cives sine suffragio, or Caerites, after this class had come into existence in 353, were like the aerarii in (1) that they did not belong to the tribes, (2) that they paid a regular tax, (3) that men were placed on their list as a punishment. They may accordingly be regarded as a special class of aerarii, enrolled as they were in a distinct list.[361] Whereas the cives sine suffragio either wholly lacked the franchise, as the phrase implies, or at most had but the right of the Latins,[362] the other aerarii must have voted in the proletarian century.[363]

The ordinary taxes sufficed for the usual light expenses; but in case of especial need an extraordinary tax was imposed upon the citizens. It was called tributum from tribuere, “to apportion,” because it was distributed among the citizens in proportion to their ratable property.[364] We hear of such a tax levied for ransoming the city from the Gauls[365] and another for the building of a wall;[366] but the most common use was for the payment of soldiers, hence the tributum was thought of primarily as a war tax.[367] For this reason tributum came to be correlative with stipendium.[368] It was not often imposed before the introduction of pay in 406.[369] Even then it was not levied every year; it was sometimes refunded when the condition of the treasury permitted; and it fell into disuse after 167.[370] As it was imposed on those only who were liable to military duty,[371] the tribe lists were followed in its collection, and in this sense we may say that it was collected tributim.[372] The work was done by state functionaries, as the tribe, so far as we know, had neither fiscal officers[373] nor a treasury; and possessing no property, it could not be held financially responsible.

An epoch in the history of the tribes was made in 312 by Appius Claudius Caecus the censor, who enrolled the landless citizens, proletarians as well as aerarii, in the existing thirty-three tribes without discrimination.[374] Cives sine suffragio were alone excepted.[375] By giving the landless the upper hand in the assemblies this measure roused the animosity of the proprietors, and thus endangered the peace of the state. In order to soothe the excited feelings of the better class, Q. Fabius Rullianus, censor in 304, supported by his colleague Decius, removed the landless from the rural tribes; but not to deprive them wholly of tribal privileges, he registered them in the four urban tribes. Hence his measure is spoken of as a compromise. Thereafter the landholding and hence more respectable citizens were preferably enrolled in the rural tribes,[376] whereas the landless were confined to those of the city.[377] It was a permanent gain that henceforth tribal membership was a test of perfect citizenship. The censors still had the power to transfer a man from one tribe to another, for instance, from a rural to an urban tribe; but they could not exclude him wholly from the tribes, for that would be tantamount to depriving him of the citizenship.[378] There were still aerarii; individuals and sometimes large groups of citizens were still assigned as a punishment to this class, which, however, was henceforth included in the tribes of the city.[379] Although the ordinary urban tribesmen were usually exempt from military duty, the aerarii were required to serve, at times under especially hard conditions,[380] and were not disqualified for office.[381] In registering them in the tribes Claudius made them, like the landowners, liable to military service and to the tributum according to their means. To effect this object he necessarily assessed their personal property on a money valuation; and in order to treat all tribesmen alike, he must have changed the terms of valuation of the landholders’ estates from iugera to money.[382]

Niebuhr, B. G., Römische Geschichte, i. 422-50, Eng. 200-12; Schwegler, Römische Geschichte, I. bk. xvii; Huschke, Ph. E., Verfassung des Königs Servius Tullius, ch. iii; Ihne, W., History of Rome, i. 62, 114; Nissen, H., Templum, 144 ff.; Italische Landeskunde, ii. 503 f.; Beloch, J., Italischer Bund unter Roms Hegemonie, ch. ii; Soltau, W., Altröm. Volksversammlungen, 375-548; Meyer, E., Ursprung des Tribunats und die Gemeinde der vier Tribus, in Hermes, xxx (1895). 1-24; controverted by Sp. Vassis, in Athena, ix (1897). 470-2; Neumann, K. J., Grundherrschaft der röm. Republik; Siebert, W., Ueber Appius Claudius Caecus; Mommsen, Th., History of Rome, bk. I. ch. vi; Röm. Tribus; Röm. Staatsrecht, iii. 161-98; Abriss des röm. Staatsrechts, 28-36; Marquardt, J., Röm. Staatsv. ii. 149-80; Willems, P., Droit public Romain, 40 ff., 98 ff.; Mispoulet, J. B., Institutions politiques des Romains, i. 37-42; Études d’institutions Romaines, 3-48; Lange, L., Röm. Altertümer, i. 501-22, and see index s. Tribus; Madvig, J. N., Verfassung und Verwaltung des röm. Staates, i. 100-8; Herzog, E., Geschichte und System der röm. Staatsverfassung, i. 39, 101 ff., 1016-31; Grotefend, C. L., Imperium romanum tributim descriptum; Kubitschek, J. W., De romanorum tribuum origine ac propogatione; Imperium romanum tributim discriptum; Pauly-Wissowa, Real-Encycl. i. 674-6: Aerarius (Kubitschek); 682-4: Aes equestre (idem); 780-93: Ager (idem); iii. 1281-3: Caere (Hülsen); 2650 f.: Claudia (Wissowa); iv. 117 f.: Clustumina (Kubitschek); Daremberg et Saglio, Dict. i. 125: Aes equestre and hordearium (Humbert).

CHAPTER IV
THE CENTURIES AND THE CLASSES

The ancient authorities represent Servius Tullius as the founder of an organization at once military and political—on the one hand the army composed of classes and centuries, and on the other the comitia centuriata. According to Livy[383]—

“From those whose rating was 100,000 asses or more he made 80 centuries, 40 of seniors and 40 of juniors, and termed them all the first class. The seniors were to be ready for guarding the city and the juniors were to serve in the field. The arms required of them were a helmet, round shield, greaves, and cuirass,—all bronze,—for the protection of the body. Their offensive weapons were a spear and a sword. To this class were added two centuries of sappers who were to serve without arms. Their duty was to convey the engines of war. The second class was made up of those whose rating was between 75,000 and 100,000 asses, 20 centuries of seniors and juniors together. They were equipped with an oblong shield (scutum) instead of a round one, and they lacked the cuirass, but in all other respects their arms were the same. The minimal rating of the third class was 50,000 asses, and the number of centuries was the same with the same distinction of age, and there was no change in arms excepting that greaves were not required. In the fourth were those appraised at 25,000 asses. They had the same number of centuries but their arms were changed, nothing being assigned them but a spear and a long javelin. The fifth class was larger, composed of 30 centuries. They carried slings and stones for throwing. Among them were counted the accensi, the hornblowers, and the trumpeters, 3 centuries. This class was appraised at 11,000 asses. Those whose rating was less formed one century exempt from military service. Having thus armed and organized the infantry, he levied 12 centuries of equites from among the chief men of the state. Also the 3 centuries instituted by Romulus he made into 6 others of the same names as those under which the three had originally been inaugurated.” Afterward Livy speaks of the votes of the centuries in the comitia.

The ultimate source of this description, as well as of the similar account given by Dionysius, is the censorial document already mentioned,[384] sometimes termed the “discriptio centuriarum,”[385] sometimes “Commentarii Servi Tullii”[386] on the supposition that Servius was the author. In reality it belonged to the Censoriae Tabulae[387] of the period immediately following 269.[388] The document gave a list of the classes, centuries, and ratings, and furnished directions for holding the centuriate assembly. As the military divisions and equipments mentioned by Livy in the passage above had been discarded long before this date,[389] they could not have been described in the document. The account of them found in our sources must, therefore, have been supplied by antiquarian study.[390] The annalist who first used these Tabulae in the censorial archives was Fabius Pictor.[391] Whether Livy and Dionysius derived their account directly from him or through a later annalist cannot be determined.[392] Though Cicero’s source may ultimately have been the same, he seems to have depended largely on his memory and is chronologically, though not in substance, less exact. In assigning seventy rather than eighty centuries to the first class he most probably has in mind a stage of transition from the earlier to the reformed organization.[393]

A brief analysis of this description, as presented by Livy or Dionysius, will prove that it could not apply at the same time to an army and a political assembly: (1) The century of proletarians, which formed a part of the comitia, and which according to Dionysius was larger than all the rest together, was exempt from military service.[394] (2) The unarmed supernumeraries termed accensi velati must in their military function have lacked the centuriate organization, as will hereafter be made clear.[395] (3) The musicians and the skilled workmen who accompanied the army must also be eliminated from the centuriate organization of the army.[396] (4) The seniors, too, lacked the centuriate military organization.[397] (5) Thus the only pedites in the original centuriate system were the juniors. Even the military century of juniors was not in the beginning strictly identical with a voting century; and as time progressed, the one group diverged more and more widely from the other.[398]

Chiefly from these facts, which will become clear in the course of this study, we are warranted in concluding that the army was at no time identical with the comitia centuriata. As one was necessarily an outgrowth of the other, the military organization must have been the earlier. If therefore the original form of the centuriate system is to be referred to Servius Tullius, he will be considered the organizer of the phalanx, which the military centuries constituted,[399] not of the comitia.[400] This result harmonizes with the view of the ancient writers that the comitia centuriata exercised no functions—hence we have a right to infer that it had no existence—before the beginning of the republic.[401]

The following sketch of the development of the Roman military system from the earliest times to the institution of the manipular legion includes those features only which are essential to an understanding of the origin and early character of the centuriate assembly. The view maintained in this volume is, as suggested in the preceding paragraph, that the comitia centuriata in the form described by Livy and Dionysius developed from the early republican military organization, which was itself the result of a gradual growth. Reference is made to equipments chiefly for the purpose of throwing light on the relation of the Roman to the Greek organization and of the various Roman military divisions to one another.

I. The Primitive Graeco-Italic Army and the Origin of the Phalanx

Recent research has brought to light a period of Italian history during which the military system of the Latins and Etruscans closely resembled that of the Mycenaeans, the former doubtless being derived in large part from the latter.[402] The nobleman,[403] equipped in heavy armor, rode forth in his chariot[404] to challenge his peer among the enemy to personal combat. The mass of common footmen were probably grouped in tribes and curiae (Greek phratries, brotherhoods),[405] as in Homeric Greece[406] and among the early Europeans[407] before the development of an organization based on a numerical system. The arms of the footmen must have been lighter, and probably varied with the individual’s financial resources. These common troops could have had no special training or discipline, as they counted for little in war.[408] Yet in the Homeric age of Greece some attempt was made to keep the fighters in line, and to prevent the champions from advancing beyond it to single combat.[409] A similar tendency to even, rhythmic movement may be inferred for the Latin army.[410] The great innovators in this direction were the Lacedaemonians, to whom the honor of inventing the phalanx is chiefly due.[411] This improvement, which made an epoch in European warfare, could not have been later than the eighth century B.C. The phalanx was a line, several ranks deep, of heavy-armed warriors, who moved as a unit to the sound of music.[412] The depth varied as the occasion demanded; it was not necessarily uniform throughout the line, but for Lacedaemon eight may be considered normal.[413] The heavy-armed trooper carried a large shield, which covered the entire body, a helmet, and greaves; his offensive weapons were sword and spear.[414] Tyrtaeus mentions also a coat of mail though not as an essential part of the equipment.[415] The metal of their defensive armor was mostly bronze; their swords and spear-points were probably iron, which the mines of Laconia abundantly supplied.[416] Although it is well known that the phalanx was composed of smaller units, the original organization can only be conjectured. It is not unlikely that in the beginning there were tribal regiments,[417] divided into companies of fifty or perhaps a hundred,[418] which were made up of still smaller groups. The military age extended from the twentieth to the sixtieth year.[419]

The phalanx was readily adopted by other Greek states, which modified it to suit their several conditions. In Athens and probably elsewhere the army had a tribal organization,[420] but a census was introduced in order to determine who possessed sufficient wealth for service on horseback, in the heavy infantry, and in the light infantry; and when once the census classes were adopted, it was easy to extend them to political uses. In this way the four property classes at Athens, probably instituted about the middle of the seventh century B.C.,[421] became under Solon if not earlier a basis for the distribution of offices and other political privileges. Naturally the Greeks of Sicily and Italy adopted the phalanx, and it is reasonable to suppose that the Romans derived it, through the Etruscans,[422] from one of these neighbors.

II. The Servian Army

As the heavy troops of the Greek line were all armed alike, the Romans probably at first composed their phalanx in a similar way, without gradations of equipment. The complex system of census groupings in the army as we find it immediately before the institution of the manipular legion could only have resulted from a long development. The statement last made finds justification in the fact that the term classis[423] was originally limited to the first or highest census group, all the rest being “infra classem.”[424]

Not only was the organization like that of the Greeks, but the arms, too, were in the main Greek. The soldiers of the classis were equipped with helmet, shield, greaves, spear, and sword; as they wore a cuirass, they used a large round Etruscan buckler[425] instead of the man-covering Dorian shield. They were grouped in centuries,[426] forty of which composed the classis in the fully developed phalanx.[427] The age of service of the juniors, who alone fought in the field, extended from the completed seventeenth to the completed forty-sixth year,[428] whereas the seniors from the forty-seventh to the sixtieth year formed a reserve.

A still nearer connection can be found between the Roman and the Greek horsemen. As is proved by archaeology, the earliest Greek knights had no specialized weapons or armor and were not accustomed to fight on horseback, but were heavy infantry who used their horses simply as conveyance.[429] The same is true of the earliest Roman equites, whose equipment closely resembled that of the Greek horsemen. On account of their swiftness they were primitively called celeres.[430] Although these mounted footmen are generally known as equites, which in this sense may but loosely be translated knights, the Romans did not institute a true cavalry till the period of the Samnite wars.[431] It is a curious fact that some horsemen, Roman as well as Greek, were provided each with two horses,[432] one for the warrior and the other for his squire,[433] and that the mounted soldiers of Etruria were in these respects the same.[434] A further resemblance between the earliest Greek and Roman horsemen lies in the fact that they were noble.[435]

In their account of the growth of the mounted service during the regal period the ancient authorities show great inconsistencies. It seems probable that the early annalists pictured the increase in the knights in a way analogous to that of the senate: at first Romulus formed a troop, or century, from the Ramnes; afterward a second was added from the Tities; and still later the Luceres furnished a third.[436] Then Tarquinius Priscus doubled the number, making six in all, and Servius finally increased it to eighteen centuries. This simple development, itself a reconstruction, was complicated by the desire of the historians to make the number of knights under Servius agree with the number under Augustus, given by Dionysius[437] at about 5000; hence the assumption of 200 or even 300 knights to the century as early as the reign of Romulus.[438] It is possible by clearing away these evident misconceptions to discover the approximate truth.

When the chariot gave way to the horseback rider is not definitely known; at all events the change seems to have taken place under Hellenic influence, and could hardly therefore have been earlier than the beginning of the seventh century B.C.[439] The idea of the sources is that there came to be three troops of horsemen, furnished by the tribes,[440] as well as three regiments of foot, that before Servius the number of troops of horse was doubled, and that the six troops thus formed were named accordingly after the tribes Ramnenses, Titienses, and Lucerenses priores and posteriores respectively.[441] The priores had each two horses, the posteriores one.[442] Hence the essential difference between these divisions was in rank and wealth rather than in the relative time of their institution. Long after Servius both divisions continued to be patrician.[443] As the centuriate organization of Servius applied to the infantry, the cavalry remained little affected by it. The six troops with their old names survived, and eventually became a part of the comitia centuriata. In the military sphere, however, the troop no longer retained its identity; but the whole body was divided into twenty turmae, each composed of three decuries commanded by decurions.[444] When with the institution of the republic the phalanx was split into two legions, ten turmae of cavalry were assigned to each legion.[445] As in historical time the number of horsemen to a legion did not exceed 300,[446] and as we have no reason to suppose that at an earlier period this arm of the service was proportionally stronger, we may conclude that in the Servian phalanx, or double legion, the number did not exceed 600.

From the foregoing discussion it appears clear that the Servian military system rested upon a division of the citizens into four groups, closely corresponding to the Athenian census divisions: (1) the equites priores, like the pentacosiomedimni, (2) the equites posteriores, like the hippeis,[447] (3) the classis, like the zeugitae, (4) the light troops infra classem, like the thetes. The distinction between priores and posteriores rested not upon an assessment but upon a less precise difference in wealth, whether determined by the individual concerned or by the state we cannot know; it represented, too, a gradation of nobility. The distinction between the knights and the classici was one of rank; that between the classis and the soldiers infra classem was alone determined by the census.

III. The Development of the Five Post-Servian Military Divisions on the Basis of Census Ratings

This arrangement was by no means final. Further changes were made in both foot and horse which were to have a bearing on the organization of the comitia centuriata. After a time[448] two additions of men less heavily armed than the classici were made to the phalanx, whether simultaneously or successively cannot be determined. There were now forty centuries of classici, and the additions comprised ten centuries each, the second less heavily armed than the first, though they may both be considered heavy in contrast with the light troops. Perhaps the state according to its ability made up the deficiency in the equipment, so as to render the entire phalanx as evenly armed as possible.[449] It numbered sixty centuries of heavy infantry, composed of three grades which depended upon the census rating.[450] The light troops were also grouped in two divisions on the same principle. The first comprised ten centuries; originally the second may have contained the same number, in which case four were afterward added to make the fourteen known to exist in the fully developed system.[451] There were five divisions of infantry amounting to eighty-four centuries of a hundred men each. Undoubtedly the growth of the army to this degree of strength was gradual, though the successive steps cannot be more minutely traced.[452]

In making the levy the military tribunes selected the soldiers from the lists of tribesmen, taking one tribe after another as the lot determined.[453] The early Romans must have striven to distribute the population as equally as possible among the tribes in order to render them approximately equal in capacity for military service. As long as this equality continued, the officials could constitute the army of an equal number of men from each tribe. These considerations explain the close relation in early time between the number of tribes and of centuries as well as the suggestions offered by our sources as to an early connection between the centuries and the tribes.[454] While there were but twenty tribes we may suppose that the legion comprised but 4000 men, which was raised to 4200 when the twenty-first tribe was added. In this way can we account for the number of centuries to the legion. If but half the available military strength was required, the magistrates might draw by lot ten tribes from which to make the levy.[455] It was an easy matter as long as the heavy troops were limited to the classis;[456] but when two other ratings were added, and when meantime the tribes must have grown unlike in population, it became practically impossible to maintain for each rating a just proportion from the tribes;[457] and perhaps this was the chief reason for the modification in the method of recruiting. When therefore the tribes were increased to twenty-five, and it was deemed inexpedient to make a corresponding enlargement of the legion,[458] a new principle was adopted for the levy: after determining the ratio between the number of men needed and the whole number available, the officers drew from each tribe a number proportionate to its capacity.[459] It would agree well with all the known facts to suppose that the addition of the second and third ratings, followed by a more thorough organization of the light troops, belongs to the early republic (509-387),[460] when Rome needed all her strength in her life and death struggle with hostile neighbors. At the same time the purchase of armor and the increased burden of military duty would help account for the desperate economic condition of the poorer peasants of that epoch.

The proportions of the five ratings—20-15-10-5-2½ or 2—to be discussed hereafter,[461] suggest an explanation of their origin. It would be reasonable to assume that the normal holding of the well-to-do citizen was a twenty-iugera lot and that the Servian phalanx was composed of possessors of that amount, the light-armed being their sons and others distinctly inferior in wealth. In course of a few generations as the population grew, with no corresponding territorial expansion or colonization or industrial development, and with only a limited conversion of waste to arable land, many of the lots became divided and subdivided. The result was a weakening of the phalanx at a time when the state was in the most pressing need of military resources. The institution of the five ratings as a basis for the reorganization of the army was a temporary expedient for meeting the crisis, to be superseded not long afterward by a better system founded on military pay. In all probability the introduction of the five ratings, or at least the beginning of the movement in that direction, should be closely connected with the institution of the censorship in 443 or 435.[462] The supposition would give us a sufficient reason for the creation of this new office at that time, and the strengthening of the army would explain the success of the Romans in the wars immediately following.

How the five ratings were arrayed in battle is unknown. If the front counted a thousand men (milites),[463] the classis comprised four ranks (4000), the second and third ratings one rank each, making in all six ranks of heavy troops (6000).[464] Twenty centuries could be drawn from the two ratings of light troops to complete the eight ranks when needed.[465] But the Romans undoubtedly exercised the same good judgment as the Lacedaemonians in varying their formation to suit the emergency;[466] and for that reason it is wrong to assume the same depth for all occasions or an even depth for any one occasion. The management of long lines one-man deep must have been extremely difficult, if not impossible.[467] The explanation already suggested, that the state supplied the deficiency in equipment,[468] would greatly simplify the case, for there would then exist no need of arraying the census groups in successive lines. Whatever may have been the tactic arrangement, it did not continue long, for soon after the introduction of regular pay, about 400 B.C.,[469] the distinction between the ratings ceased to have an importance for military affairs.

IV. The Question as to the Connection of the Supernumeraries and the Seniors with the Military Centuries

A number of supernumeraries termed accensi velati accompanied the army. The epithet accensi proves them to have been outside the five ratings, while velati describes them as wearing civilian dress. We are informed by the sources that they carried water and weapons to the fighting men, stepped into the places of the dead and wounded, and acted as servants to the lower officers.[470] These men could not have been organized in centuries,[471] for they were drawn up in the rear behind the light troops; they extended along the entire breadth of the army,[472] and must have greatly exceeded one hundred or even two hundred. The musicians,[473] too, who accompanied the army were not grouped in two centuries, for they were distributed throughout the army.[474] There is no reason for assuming exactly two hundred musicians[475] or exactly two hundred workmen,[476] or for supposing that any of the men of this description were organized in centuries in the army. Reasoning in a similar way in regard to the seniors, we conclude that their organization in centuries could not have belonged to the original Servian system. A military century, as the name indicates, must have contained a hundred men.[477] But in any static population there are three times as many men between seventeen and forty-six as between forty-six and sixty[478]—in Rome there were three times as many juniors as seniors; and as the number of junior and senior centuries was equal, the latter could have contained only about thirty-three each, on the supposition that the whole male population between seventeen and forty-six years was organized in centuries.

The mere fact that the senior century contained so few men suggests that it was not a military institution. This impression is confirmed by the information that the seniors were reserved for the defence of the city, while the juniors took the field in active service.[479] When we reflect that even in the early republic the seniors could not often have been called on for defence, as the juniors were ordinarily sufficient for the purpose,[480] that the manning of the walls did not necessarily require a division into companies or an equipment like that for field service, and that when it was thought expedient for the seniors to serve in centuries or cohorts, their enrolment in these companies is especially mentioned, our conviction that the senior centuries did not belong to the original Servian organization grows into a certainty.[481]

V. Conclusions as to the Servian and Early Republican Organizations; Transition to the Manipular Legion

In our search for the Servian and post-Servian schemes of military organization we found it necessary to eliminate from the discriptio centuriarum all the centuries of pedites with the exception of the juniors. But even a military century of juniors could not have remained identical with a voting century; for the former comprised a fixed number and the same for all ratings, whereas in the comitia of historical time the centuries varied greatly in size, many of them containing far more than a hundred men each. In the four lower classes each century contained as many men as the entire first class;[482] and individuals constantly shifted from one class to another as their several properties increased or diminished.[483] It is a mistake, therefore, to think of the army as identical with even the junior centuries of the comitia.[484] Doubtless when the Servian army was first introduced, its organization was made to fit actual conditions, so that all who were liable to service found their place in it; but as the political assembly of centuries was instituted many years afterward, the army with its various enlargements could have kept meanwhile no more than approximate pace with the changing population, and at no time could it include the physically disqualified, who nevertheless had a right to vote in the junior centuries of the political assembly. On the other hand there were soldiers in the army too young to be in the comitia centuriata.[485]

The conclusion as to the strength of the army in the first years of the republic, before the latter had acquired any considerable accession of territory, corresponds closely with a moderate estimate of the population under the conditions then existing. The area of the state was about 983 square kilometers (equivalent to 379.5 sq. mi. or 242,899 acres).[486] Estimating the population of this agricultural community at its maximum of sixty to the square kilometer, we should have less than 60,000 for the entire area.[487] The number of men from seventeen to sixty, the Roman military age, should be about thirty per cent of the population[488]—less therefore than 18,000. If the ratio of juniors to seniors was about three to one,[489] we should have about 13,000 juniors to 5000 seniors. But a deduction must be made for slaves and for the physically incapacitated, leaving perhaps 9000 or 10,000 juniors and 3000 or 4000 seniors. These results are not unreasonable. Making allowance for several hundred supernumeraries,[490] we should then have no more than enough juniors to fill the eighty-four centuries of foot and the six troops of horse. It is clear, therefore, that all available forces were included in the army and that the junior centuries could not have contained more than a hundred men each.

Even before the phalanx had thus been brought to perfection, modifications were being made in the equipment under the influence of the Gallic invasion.[491] The introduction of pay, about 400 B.C., as has been said,[492] broke down the distinction of equipment based on degree of wealth, and not long afterward, probably in the time of the Samnite wars, the phalanx gave way to the manipular legion, which reached its full development in the Punic wars.[493]

VI. The Five Classes and their Ratings

Though originally denoting the men of the first rating, who possessed the fullest equipment,[494] the term classis with an explanatory adjective came to apply to the entire army[495] or to its component parts.[496] The plural “classes” came finally to mean the five census groups, represented by the five timocratic gradations of the comitia centuriata. What had formerly been the classis then came to be known as classis prima, and the “infra classem” ratings were numbered downward second, third, fourth, and fifth. Probably this extension in the use of the word was not made till after the disappearance of the ratings from the army—how much later we do not know. In a speech delivered in 169 in favor of the lex Voconia the elder Cato more than once examined into the meaning of classicus and infra classem.[497] A hasty inference would be that at this late date classis was still strictly limited to the first rating. It is to be noted, however, that the early meaning might be retained in a legal formula long after it had disappeared from general use, that classicus certainly preserved its original meaning notwithstanding the new development of the noun from which it is derived, and especially that the early sense of the terms classicus and infra classem was not generally known in 169, else Cato would not have taken such pains to define them. We know that the ratings were termed classes in 111,[498] and from what has just been said on the Voconian law it seems probable that the development took place long before 169. The circumstance that in their “discriptio centuriarum” Livy and Dionysius make no reference to the distinction between classis and infra classem would favor the supposition that they found no such distinction in their common source—ultimately Fabius Pictor. Hence it is not unlikely that classis was used in its historical meaning of property class in the censorial document from which Fabius derived his knowledge of the fully developed comitia centuriata, and which belonged to the period immediately following 269.[499]

Before the censorship of Appius Claudius Caecus, 312, military service within the census ratings was based on the possession of land, and the gradations of equipment, while they lasted, must therefore have been determined by the size of the estate reckoned in iugera.[500] Huschke[501] rightly inferred that the number of iugera marking the lower limit of each division must have been proportioned to the later money ratings, and assumed accordingly 20, 15, 10, 5, 2½ or 2 iugera as the respective minimal holdings of the five divisions. Although absolute certainty is unattainable, most scholars accept his conclusions as probable.[502] Before the change was made in the appraisements from amount of land to money, the census gradations ceased to serve a military purpose. In the further discussion of these groups reference is therefore solely to their political character, especially as expressed in the organization of the comitia centuriata. Till the time of Marius, however, the soldiers were ordinarily recruited from the classes—that is, from the citizens who possessed at least the qualification of the lowest group.[503]

The money ratings of 312 are not recorded; we know those only of the time following 269. The ratings of the earlier date must have been in the nominally libral asses then current. For a long time, probably down to 312, the as remained at eleven to nine ounces in weight, then sank rapidly to four, three, and two ounces, reaching the last-mentioned weight in or shortly before 269. In this year or the following was legally adopted the lighter as, weighing two ounces, or a sixth of a pound, and hence termed sextantarian, and the heavier asses still in circulation were henceforth reckoned as sesterces, which now became the unit of value.[504] Two and a half sextantarian asses made a sesterce, and four sesterces made a denarius.[505] The as continued to be copper, whereas the sesterce and the denarius were silver. In consequence of the use of the sextantarian as the ratings must have been elevated to correspond with the decline of the standard; and the result of this change is the well-known series, 100,000, 75,000, 50,000, 25,000, 11,000.[506] There can be no doubt that under the standard used in 312 the ratings were lower than those given. It is incredible that the classis should ever have been appraised so high as 100,000 asses of ten-ounce weight or even of the value of sesterces (5 oz.).[507] But the ratings of 312 have not been definitely ascertained. Assuming but one elevation between the two dates and in the proportion of 4:10:: sextantarian as: heavy as or sesterce, Mommsen[508] concludes that the appraisements of 312 were 40,000, 30,000, 20,000, 10,000, and 4400 asses respectively for the five classes. The adjustment however may have been gradual, as was the decline of the standard, and the former need not have corresponded exactly with the latter. But in so far as the Romans failed to bring about this adjustment, the censors must have found it necessary continually to advance the citizens from the lower to the higher divisions.

The ratings mentioned above as established on the basis of the sextantarian standard, namely 100,000, 75,000, 50,000, 25,000, and 11,000 asses for the five classes respectively, are those given by Livy.[509] Several variations affecting the highest and lowest classes are offered by other writers. Dionysius[510] states the appraisement of the fifth class at 12½ minae, which would be 12,500 asses. The usual explanation is that he is dealing in round numbers without especial regard to accuracy, for which reason Livy should be given the preference. It is doubtful however whether Dionysius was so inexact. More probably his estimate depended ultimately on the idea that the minimal number of iugera of the highest class was twenty-five,[511] taken in connection with the decimal ratio between the extreme classes—an interpretation which would help explain variations in the rating of the highest class to be mentioned hereafter; or with less reason we might assume that the statements of Dionysius and Livy represent earlier and later conditions.[512] The limit of 400 drachmas given by Polybius[513] proves a lowering of the minimal rating between 269 and the publication of his history.[514] It may have been made in 217, when the money system was again changed. As Polybius probably considered the drachma, or denarius, to be worth ten asses,[515] the limit which he mentions would be 4000 asses. Cicero states the minimal limit at 1500 asses,[516] and a still lower sum of 375, mentioned by Gellius,[517] marked the line of division between the taxable proletarians and the capite censi, who were exempt from taxation. As the differentiation between the two groups last named must have been effected before 167, when the Romans were relieved of the tributum,[518] the rating given by Cicero could not have been later than that vouched for by Polybius. The limit of 4000 asses, accordingly, had reference merely to military service, whereas 1500 marked at once the political and tributary line of separation between the fifth class and the taxable proletarians.[519] The limit of 375 asses, on the other hand, was far below the fifth class, and had nothing to do with it.[520] The relation of these numbers to one another may be summarized as follows: Those assessed at 4000 or more asses belonged to the fifth class, enjoyed the political rights of that class, and were subject to military service as well as to taxation (tributum); those rated at 1500-4000 asses also belonged to the fifth class, enjoyed the political rights of that class, and were subject to taxation but exempt from military service; those rated at 375-1500 asses were proletarians, below the fifth class but subject to taxation; those rated below 375 asses, the capite censi, were exempt from taxation.

As regards the rating of the highest class, the elder Pliny[521] states it at 110,000 asses, which may be a copyist’s error for 100,000 or for 120,000; the estimate of Paulus Diaconus[522] is 120,000 and of Gellius[523] 125,000. If the manuscripts have correctly preserved these numbers, they may represent computations based on a varying number of iugera, from twenty-two to twenty-five[524] at the rate of 5000 asses a iugerum—a valuation which may have been given in the original annalistic source (Fabius Pictor). From the fact that Pliny assigns this rating to Servius as author, and that Gellius speaks of it in the past, we must infer that it was not due to a relatively late change. Indeed the rating must have remained unaltered to the time of Polybius,[525] who states that those appraised at 10,000 drachmas wore the cuirass—according to Livy[526] and Dionysius,[527] the distinctive equipment of the first class.[528] In the same age the Voconian law, 169, provided that a man registered by the censors as worth 100,000 asses or more should not bequeath his property to a woman.[529] While speaking in favor of the measure the elder Cato expounded the distinction between the classici and those who were “infra classem.”[530] Strictly following Cato’s definition, Gellius[531] explains the classici as those of the first class in contrast with the members of the lower classes, who are infra classem. Evidently the classici are to be identified with those rated at 100,000 asses, as given by Gaius.[532] The sum of 100,000 sesterces, in place of asses, represented by later writers[533] as the one fixed by this law, is due either to a late interpretation or to an amendment.[534] The minimal qualification of the first class must therefore have continued unchanged from 269 to the passing of the Voconian law, 169, and the composition of the History of Polybius.[535] From the latter event to the tribuneship of Tiberius Gracchus little time was left for an increase, which certainly the Gracchi and their successors would take no interest in bringing about. Further depreciation in the weight of the as, by the reduction to a half ounce through the Papirian law of 89,[536] had no effect on the valuation, as the standard was the silver sesterce, the as having merely the fiduciary value of a quarter sesterce. Apart from the accounts of Livy and Dionysius already considered, no reference is made to the valuation of the intermediate classes, unless it be a passage in Livy[537] to the effect that freedmen possessing country estates worth at least 30,000 sesterces were enrolled in the rural tribes by the censors of 169, which is interpreted by Mommsen[538] to refer to the qualification of the second class. This is true if, as has been assumed above, the censors still reckoned two and a half asses to the sesterce.[539]

VII. Belot’s Theory as to the Ratings

Notice must be taken of a theory proposed by Belot,[540] that at the time of the First Punic War, owing to an economic revolution which enhanced prices, and to the decrease in the weight of the as, the five ratings as stated by Dionysius for the earlier period were multiplied by ten, giving for the future 1,000,000, 750,000, 500,000, 250,000, 125,000 asses for the five classes respectively.[541] The theory is supported with remarkable learning and skill. There can be no doubt as to the lowering of the weight of the as or of the economic revolution which increased prices. Large valuations of estates such as he mentions are found in the sources. For example in 214 the government ordered[542] that—

Belot’s attempt to identify the highest of these appraisements with the rating of the first class is unsuccessful, as will immediately appear. The object of the order issued by the government in 214 was to provide crews for the fleet of that year. Although the hundred and fifty ships to be manned[543] seem to have been triremes, we may consider them quinqueremes so as not to underestimate the number of men necessary. Reckoning 375 men to the ship,[544] we should have 56,250 men for the entire fleet. But according to Belot[545] there were 22,000 knights at this time, whose census rating was 1,000,000 asses, and who accordingly would have to furnish seven men each for the navy, which would amount to 154,000, or more than enough to man three such fleets as that of the year under consideration. But as the knights constituted only a twelfth of the total number of registered citizens of that period,[546] most if not all of whom must according to Belot have been assessed at 50,000 or above, we shall be obliged at least to double the 154,000 sailors furnished by the knights to obtain the whole number demanded by the government. The absurdity of the result condemns the premises. The minimal census of the knight could not have been materially if at all above 100,000 asses,[547] and the great mass of citizens must have been rated below that sum. Other features of his theory need not be considered here. The truth is that the great accumulation of wealth benefited but few; and notwithstanding the advance in the money value of property, the mass of people remained so poor that the state could not disturb the census ratings, however out of harmony with the new conditions they seem to have become. No suspicion should be thrown on the continuance of these small valuations by the circumstance that occasionally the state compelled the wealthy to contribute to the burden of war according to their ability, as in 214, and increased the penalties for the crimes and misdemeanors which the rich and powerful were wont to commit.[548]

VIII. The Post-Servian Equites

The classes, as developed after Servius, have now been considered sufficiently for an appreciation of their relation to the comitia centuriata. It remains to discuss from the same point of view the post-Servian alterations in the equestrian organization.

In the earliest period when the warriors in general equipped themselves at their own expense,[549] the equites provided their own horses. But in time as the patricians ceased to be the only wealthy class in the community, and as they began to lose their political advantages, their duty of keeping one or two horses came to be felt as onerous, and some means of lightening it was sought for. The only private property which was free from the burden of supporting military service was that of widows and orphans. The government determined accordingly to levy a regular contribution on this class of estates in the interest of the equites. The eques was allowed ten thousand asses, or one thousand denarii (aes equestre), with which to purchase his horse or horses for the ten years of service and two thousand asses (aes hordearium) annually for maintenance.[550] He was not paid the money in advance, but was given security for the required sums,[551] which were gradually to be made good from the special kind of tax here described. When these equestrian funds were first granted cannot be absolutely determined. Cicero[552] assigns their institution to Tarquinius Priscus, Livy[553] to Servius, Plutarch[554] to Camillus in the year of his censorship, 377. For obvious reasons the earlier dates are suspicious, whereas the last has the advantage of connecting the institution of these funds with the general movement for the public support of military service. When in the war with Veii regular military pay was introduced, the eques on account of his more burdensome duty, perhaps too because of his higher rank, was allowed three times the pay of the legionary.[555] It was afterward decided to deduct the aes hordearium, probably also the aes equestre, from his pay.[556] Meanwhile as wars were waged on an ever increasing scale, the patricians, who were dwindling in number, could not furnish all the cavalry needed. This want was especially felt in the struggle with Veii, whereupon wealthy plebeian youths[557] came forward and offered to serve with their own horses.[558] This is the first known instance of voluntary equestrian duty, doubtless often repeated at crises during the remainder of the republican period. In the first case at least the state provided for the keep of the horses. The volunteers were of the same grade of wealth as the conscripts; they were held in equal honor,[559] and most probably their years of voluntary service were counted in with their regular duty in making up the required number.[560] Service equo privato could also be imposed as a punishment. The only known instance, however, was that required by the censors of 209 of the equites who had disgraced themselves at Cannae. Their horses were taken from them, their campaigns equo publico were not counted to their credit, but they were required to serve ten years equis privatis.[561] These are the only instances of service with private horses mentioned in history. In all ancient literature is no suggestion that the equites equo privato formed a rank by themselves or were an institution.[562] It should also be said that the injustice of furnishing some with horses and of compelling others to go to war at their own expense, unless by way of punishment, was contrary to the spirit of the constitution. This conclusion is supported by the elder Pliny’s[563] definition of the military equites, which makes the public horse an essential. From the time therefore when the state began to support the mounted service in the way described above, the equites equis publicis continued to be the only regular citizen horsemen.

The number of equites with public horses is approximately determined for any time by the number of legions then enrolled. The Servian phalanx, as has been noted,[564] consisted of two legions, which remained the normal number through the fifth century. But in the wars with Samnium and Pyrrhus Rome was able regularly to support four legions.[565] The military force could not have been doubled before the incorporation of the Veientan territory early in the fourth century;[566] most probably the enlargement belongs to still later time. The increase in the infantry required a corresponding enlargement of the mounted service. At least twelve hundred equites were henceforth required for active duty. Making allowance for reserves and ineffectives, the government raised the number of equites equo publico to eighteen hundred. The twelve new centuries were open alike to patricians and plebeians, whereas the old six remained for a time exclusively patrician. This seems to have been the condition at the opening of the first war with Carthage. During the Punic wars the number varied greatly, sometimes reaching a total of more than five thousand in the field, not counting reserves.[567] After the war with Hannibal the state, drained of men and money, allowed the cavalry to dwindle.[568] Viewing this condition with alarm, the elder Cato[569] urged that the number should be increased, and that a minimal limit be fixed at 2200. Probably at the same time he proposed that the legion should be strengthened. His measure must have been adopted, for after his censorship we find the legion regularly consisting of 5200 foot and 300 horse.[570] Under Augustus there were times when 5000 equites[571] equo publico took part in the parade which he revived.[572] As no reason can be found why Augustus should suddenly increase this class, we must conclude that there were probably about 5000 equites equo publico in the late republic.

As long as the cavalry remained exclusively patrician, a census qualification was precluded. Though Cicero and Livy refer the equestrian census to Servius Tullius, their vagueness on this point shows that they lacked definite information.[573] It must have been introduced at the time when the patriciate ceased to be an essential qualification, when the levy came to be made on the basis of wealth rather than of blood. This change should be assigned to the early part of the fourth century B.C.[574] For a time the census was that of the first class.[575] In 214 it was still 100,000 asses, or not much above, as has already been proved.[576] In the late republic and under the emperors the minimal rating was 400,000 sesterces.[577] When it was raised to this amount is unknown.

I. The Early Graeco-Italian Phalanx: Busolt, Griechische Geschichte, i, ii (see Contents); Bauer, A., Griechische Kriegsaltertümer; Droysen, H., Kriegsalterthümer der Griechen, in Hermann’s Lehrb. der griech. Antiquitäten, ii. 1-74; Gilbert, Constitutional Antiquities of Sparta and Athens (see Index and Contents); Lammert, E., Geschichtliche Entwickelung der griech. Taktik, in N. Jahrb. f. kl. Alt. iii (1899). 1-29; Die neuesten Forschungen auf antiken Schlachtfeldern im Griechenland, in N. Jahrb. f. d. kl. Philol. xiii (1904). 195-212, 252-79, contains some matters of interest for the present subject, though it treats mainly of the time after Alexander; Fröhlich, F., Beiträge zur Kriegsführung und Kriegskunst der Römer zur Zeit der Republik; Schiller, Röm. Kriegsaltertümer, in Müller’s Hdb. d. kl. Altwiss. iv. 707 ff.; on earlier literature, 714 f., 728 f., 733, 737, 741, 744; Leinveber, A., Die Legion von Livius, in Philol. lxi. N. F. xv (1902). 32-41, a specialist in military science; Nitzsch, K. W., Das Verhältniss von Heer und Staat in der röm. Republik, in Hist. Zeitschr. vii (1862). 133-58; Liers, H., Kriegswesen der Alten; Delbrück, Geschichte der Kriegskunst im Rahmen der politischen Geschichte, bks. i, iv, best authority; Die römische Manipulartaktik, in Hist. Zeitschr. N. F. xv (1884). 239-64; Niese, B., Ueber Wehrverfassung, Dienstpflicht, und Heerwesen Griechenlands, ibid, xcviii (1907). 263-301, 473-506; Arnim, H., Ineditum Vaticanum, in Hermes, xxvii (1892). 118-30, the portion of Greek text used is on p. 121; Wendling, E., Zu Posidonius und Varro, in Hermes, xxviii (1893). 335-53, on the source of the Ined Vat.; Bruncke, H., in N. Philol. Rundschau (1888) 40-4; Müller-Deecke, Etrusker, i. 364-72; Müller, J. J., Studien zur röm. Verfassungsgeschichte, in Philol. xxxiv (1876). 96-136; Helbig, Sur les attributs des saliens, in Mémoires de l’académie des inscriptions et belles-lettres, xxxvii² (1905). 205-76; on the same subject, in Comptes rendus de l’acad. etc. 1904. ii. 206-12.

II. The Military and Political Centuries and Classes: Niebuhr, B. G., Röm. Geschichte, i. 451-511, Eng. 197-236; Schwegler, Röm. Geschichte, I. bk. xvii; Huschke, Ph. E., Verfassung des Königs Servius Tullius, especially chs. iv, vii, viii; Peter, C., Epochen der Verfassungsgeschichte der röm. Republik; Studien zur röm. Geschichte, controverts Mommsen’s view as to the military character of the Servian institutions; Mommsen, History of Rome, bk. I. ch. vi; De apparitoribus magistratuum romanorum, in Rhein. Mus. N. F. vi (1846). 1-57, includes some account of the accensi; Röm. Tribus, 59-72, 121-143, 160 ff.; Röm. Staatsr. iii. 240 ff.; Röm. Forschungen, i. 134-40; Willems, P., Droit public Rom. 40, 43, 84-92; Mispoulet, J. B., Institutions politiques des Romains, i. 203-7; Lange, L., Röm. Altertümer, i. 522-66; Cicero über die servianische Centurienverfassung, in Kleine Schriften, i. 227-234; Herzog, Geschichte und System der röm. Staatsverfassung, i. 37-43, 1066 f.; Ihne, W., History of Rome, bk. I. ch. vii; Early Rome, 51-4, 79, 132-9; Entstehung der servianischen Verfassung, in Symbola Philologorum Bonnensium (1864-1867). 629-44; Breda, Die Centurienverfassung des Servius Tullius; Genz, H., Servianische Centurien-Verfassung; Soltau, W., Altröm. Volksversammlungen, 229-96; Ullrich, J., Centuriatcomitien; Le Tellier, M., L’Organisation centuriate et les comices par centuries, ch. i; Hallays, A., Les comices à Rome; Morlot, É., Les comices électoraux, ch. iii; Moye, M., Élections politiques sous la république Rom. chs. iii, iv, vii; Müller, ibid.; Neumann, K. J., Grundherrschaft der röm. Republik, die Bauernbefreiung, und die Entstehung der servianischen Verfassung, speculative but very suggestive; Greenidge, A. H. J., Roman Public Life, 65-76; Legal Procedure of Cicero’s Time, 307 ff.; Schott, P. O., Röm. Geschichte im Lichte der neuesten Forschungen; Smith, F., Röm. Timokratie; Pardon, De aerariis; Maue, H., Der praefectus fabrum; Bloch, A., Le praefectus Fabrum, pt. ii, in Musée Belge, ix (1905). 352-78; Babelon, E., Monnaies de la république Rom. I. pts. i, ii; Traité des monnaies Grecq. et Rom. i; Origines de la monnaie; Samwer-Bahrfeldt, Geschichte des alten röm. Münzwesens; Hill, G. F., Greek and Roman Coins, 45-9; Regling, Zum älteren röm. und ital. Münzen, in Klio, vi (1906). 489-524; Belot, É., De la révolution économique et monétaire ... à Rome; articles in Pauly-Wissowa, Real-Encycl.: Accensi, i. 135-7 (Kubitschek); Adscriptivi, i. 422 (Cichorius); Adsiduus, i. 426 (Kubitschek); Aerarius, i. 674-6 (idem); As, ii. 1499-1513 (idem); Capite censi, iii. 1521-3 (Kübler); Census, iii. 1914-24 (Kubitschek); Centuria, iii. 1952-62 (Kübler, Domazewski, Kubitschek); Classis, iii. 2630-32 (Kübler); Collegium, iv. 380-480 (Kornemann); Comitia, iv. 679-715 (Liebenam); Cornicines, iv. 1602 f. (Fiebiger); Denarius, v. 202-15 (Hultsch); articles in Daremberg et Saglio, Dict.: Accensus, i. 16 ff. (Humbert and others); As, i. 454-64 (Lenormant); Census, ii. 1003-17 (Humbert); Centuria, ii. 1017 (idem); Classis, i. 1224 f. (idem); Comices centuriates, s. Comitia, ii. 1378 ff. (idem); articles in Ruggiero, E., Dizionario epigrafico: Accensus, i. 18-21; Aerarius, i. 311-3; Aes, i. 313 f.; Centuria, ii. 183-9; Censor, ii. 157 ff.; Census, ii. 174-7; Cornicines, ii. 1213-6; Fabri, iii. 4-18 (Libenam); Olcott, Thes. ling. lat. ep. i. 51: Accensus; Pais, E., Ancient Legends of Roman History, ch. vii.

III. The Equites: Niebuhr, ibid. i. 415-22, Eng. 197-200; Schwegler, ibid. i. 756-60; Lange, Röm. Alt. i. 444-7, 523, 547-51; Recension über K. Niemeyer, De equitibus romanis commentatio historica, in Kleine Schriften, i. 113-37; Mommsen, Röm. Staatsr. ii. 397-400; iii. 106-9, 253-62; Madvig, J. N., Verfassung und Verwaltung des röm. Staates, i. 155-82; Mispoulet, J. B., Études d’institutions Rom. 151-226; Bloch, G., Origines du sénat Rom. 46-95; Marquardt, J., Historiae equitum romanorum libri iv; Gomont, M. H., Chevaliers Rom. depuis Romulus jusqu’à Galba; Niemeyer, K., De equitibus romanis commentatio historica; Rubino, J., Ueber das Verhältniss der VI Suffragia zur röm. Ritterschaft, in Zeitschr. f. d. Altertumswiss. iv (1846). 212-39; Bertolini, C. I., I celeres ed il tribunus celerum; Belot, É., Histoire des chevaliers Rom. 2 vols.; Gerathewohl, H., Die Reiter und die Rittercenturien zur Zeit der röm. Republik, valuable; Kubitschek, J. W., Aes equestre, in Pauly-Wissowa, Real-Encycl. i. 682-4; Kübler, Equites Romani, ibid. vi. 272-312; Martin, A., Equites (Greek), in Daremberg et Saglio, Dict. ii. 752-71; Cagnat, R., Equites (Roman), ibid. ii. 771-89; Helbig, W., Observations sur les ἱππεῖς Athéniens, in Comptes rendus de l’académie des inscriptions et belles-lettres, 1900. 516-22; Les ἱππεῖς Athéniens, in Mémoires de l’acad. etc. xxxvii¹ (1904). 157-264; Die ἱππεῖς und ihre Knappen, in Jahreshefte des österr. archäol instituts, viii. 2. 185-202; Peterson, E., Zu Helbigs ἱππεῖς, etc., ibid., 125 f.; Helbig, Zur Geschichte des röm. Equitatus, A. Die Equites als berittene Hopliten, in Abhdl. d. bayer. Akad. d. Wiss. xxiii (1905). 267-317; Die Castores als Schutzgötter des röm. Equitatus, in Hermes, xl (1905). 101-15; Contribution à l’histoire de l’equitatus, in Comptes rendus de l’acad. des inscriptions et belles-lettres, 1904. ii. 190-201; Pellegrini, G., Fregi arcaici etruschi in terracotta, etc., in Milani, L. A., Studi e materiali archeol. e numis. i. 87-118.

CHAPTER V
THE AUSPICES

I. Auspicia Privata

Auspices (auspicia) were signs sent by the gods through which they declared their will to men. Those given in answer to prayer were impetrativa (or impetrita), those sent unasked oblativa. The first were necessarily favorable; the second might be either favorable or the contrary.[578] To take or to hold auspices was to seek such signs in due form. Auspicia, or the singular auspicium, also designated the right or the power to perform the function. They were not a means of prophecy of future events but of ascertaining whether the deity approved a proposed action.[579] With reference to their object and to the persons qualified to take them, they were of two kinds, private and public. Whereas the public auspices, taken in behalf of the state, belonged exclusively to magistrates, the private were open to all;[580] and in early times a Roman always resorted to them before beginning any important business.[581] Though it was permissible to consult any deity,[582] the greatest weight attached to the approval of the supreme god Jupiter.[583]

The plebeians, who as long as they were excluded from the magistracies were necessarily debarred from the auspicia publica, enjoyed equally with the patricians all private rights of religion; in fact if the nobles had wished, they possessed no legal means of preventing the holding of auspices or the performance of any other sacred rite in private plebeian houses. Not only is it stated that all had a right to auspicate,[584] but the formula for summoning troops given by Cincius[585] implies that the soldiers, who were mainly plebeian, were accustomed to perform the rite. We find accordingly the elder Cato, a plebeian, attending to the ceremony in his own home.[586] The patricians, however, who believed themselves to be nearer and dearer to the gods than were the plebeians, and who in their struggle to keep themselves a closed caste and the offices barred against the lower social class, declared that conubium if granted would disturb the private as well as public auspices.[587] But this assertion need not signify that the plebeians had no private auspices, it might indicate merely a difference between the plebeian and patrician ceremonies, naturally implying the superiority of the latter. Again when on a certain occasion according to Livy a tribune of the plebs inquired of a patrician why a plebeian could not be made consul, the reply was that no plebeian had the auspices, reiterating that the decemvirs had forbidden conubium to prevent the disturbance of the ceremony by uncertainty of birth.[588] Reference might here be simply to the auspicia publica, with which alone the consul was concerned. However this may be, the patrician claim was indignantly repudiated by the plebeians, and the historian can say no more than that it was “perhaps true.” Another passage from Livy usually interpreted in support of the theory that the patricians alone had private auspices represents them, before the opening of the offices to the commons, as saying, “So peculiar to us are the auspices that not only the patrician magistrates whom the people choose are elected under the auspices, but we ourselves under the sanction of the same rite without a vote of the people appoint the interrex, and we as private persons hold auspices, which they do not hold even as magistrates.”[589] This passage is perfectly intelligible to one who bears in mind that in the late republic private auspices had disappeared,[590] and that therefore when the word auspicia is used without qualification by a late republican or imperial writer, it always has reference to the public ceremonies.[591] In the quotation just given, accordingly, nothing more is meant than that the patricians, who have the exclusive right to the offices, are alone competent to perform the public religious ceremonies which belong to the magistrates. Reference in the quotation to the auspices of private persons signifies that when there was no magistrate competent to hold the election of consuls, the public auspices returned to the senate, the patrician members of which proceeded under auspication to appoint an interrex for holding the elections. In this case the senatorial patricians, it was asserted, attended to the ceremony not as magistrates but as private persons, though the rites were themselves public. As distinguished from magistrates, the senators were privati. It was not, then, as mere citizens but as patrician members of the senate that they performed the rite. Further light is thrown on this subject by the fact that in the agitation for the opening of the augural and pontifical colleges to the plebeians in 300, the patricians repeated the assertion that with them alone were auspices, they alone had family (gens), they alone possessed true imperium and auspicium in peace and war.[592] This claim they had the effrontery to make despite the fact that plebeian consuls had been taking public auspices for more than sixty years. In the pride of their blood they claimed that theirs alone were strictly legal (iustum). Notwithstanding such partisan assertions the facts thus far adduced lead unmistakably to the conclusion that the plebeians equally with the patricians enjoyed the right to private auspices.[593]

II. Auspicia Publica Impetrativa

The right to public auspices belonged primarily to patrician magistracies[594]—those which in the early republic were filled only by patricians, but which continued to be called patrician after they were open to plebeians. All elections and appointments to such offices were auspicated;[595] and their incumbents were expected to seek the previous approval of Jupiter for every important act of their administration.[596] The king, interrex, dictator, consuls, praetors, and censors had the auspicia maxima; the others the minora.[597] The praetor, as colleague of the consuls, was elected under the same auspices with them, that is, in the same meeting of the assembly, whereas the censors, not being colleagues of the consuls, were elected under different auspices. Between magistrates who were not colleagues there could be no collision in the auspicia impetrativa; those of the censors neither strengthened nor vitiated those of the consuls or praetors, nor were strengthened or vitiated by them. In case of a conflict between colleagues, the greater auspices annulled the lesser, and equal auspices annulled each other.[598] For the exercise of a function properly belonging to a magistracy, the incumbent performed the ceremony at his own will and pleasure, unless expressly forbidden by a superior;[599] but one who undertook a deputed duty had to ask the auspicium of a magistrate who was competent to perform the duty in his own right. Thus the quaestor, who was not qualified by right of his office to call the comitia centuriata, found it necessary to do so in his capital prosecutions. In such a case he asked of the praetor or consul the right to hold auspices for summoning this assembly.[600] Whether the pontifex maximus held auspices in his own name, or was obliged, like the quaestor, to apply for them to a higher secular official, is unknown; at all events it was necessary for him to auspicate the comitia calata, over which he presided.[601] It seems probable that the tribunes originally did not have the right as they were not magistrates; but when they came to be so considered, they acquired the auspicium. All magistrates—necessarily including the tribunes—who convoked the senate had previously to perform the ceremony;[602] Cicero[603] seems to include the tribunes among the magistrates who had the auspicium; and as further proof the very expression “patriciorum (magistratuum) auspicia”[604] used by Messala implies the existence of “plebeiorum magistratuum auspicia.” It was not the custom of the tribunes, however, to auspicate their assemblies of the plebs.[605]

For assistance in auspication the magistrate summoned any person he pleased, who was rarely if ever a public augur.[606] An augur,[607] whether private or official, was a person who knew how to hold and to interpret auspices.[608] A college of public augurs[609] for the service of the state was established in the most primitive times. Probably comprising three members, one from each tribe, it was gradually increased till under Sulla it reached fifteen.[610] The members of the college were neither magistrates[611] nor prophets. They were rather the wise,[612] experienced[613] keepers and expounders of a sacred science and art[614]—the “interpreters of Jupiter All-Great and Good.”[615] Having to do with religion, they were sacerdotes, like the pontiffs, though not offerers of sacrifice (flamines).[616] The functions which they exercised independently of the magistrates included the inauguration of religious officials (inaugurare sacerdotes), the blessing of fields twice a year, and of the people after the close of a war.[617] In attending to such duties (auguria) only did they exercise their right to the auspices.[618] In a dependent though far more influential position they acted as the professionally skilled advisers and assistants of the magistrates in all matters of peace and war.[619] If a magistrate was not himself an augur,[620] it was of the utmost importance to have their service; for the science of discovering and interpreting the divine omens was intricate, mistakes were easy, and the slightest oversight might vitiate the whole business in hand. When in doubt as to the validity of the ceremony, either the magistrate to whom it belonged or the senate could refer the case to the college of augurs, which thereupon gave an opinion in the form of a decree. The senate then acted on the matter according to its judgment.[621] In case a law had been passed, a magistrate elected, or any public act performed against its wishes, it could inquire of the college of augurs whether the election or other act had been duly auspicated; and should a defect be alleged, the senate could annul the act or request the magistrate to resign. It required unusual courage in a man to keep himself in office in defiance of the authority of the senate and of the religious feeling of the whole people.[622] These considerations account for the great importance attaching to the presence of augurs in the comitia—a subject to be treated in another connection.[623]

The service of augurs was most needed in establishing the terrestrial templum[624]—a carefully marked out, oriented spot which the magistrate occupied while performing the rite.[625] Whereas the commander of an army generally made use of chicken auspices (signa ex tripudiis), which did not require their assistance,[626] they were doubtless always called upon to institute templa in or near the city.[627] For the exercise of their art they divided the world, so far as known to them, into augural districts. The central district was the city, limited by the pomerium,[628] beyond which, probably extending to the first milestone,[629] lay a zone termed ager effatus,[630] whose boundaries were marked by cippi.[631] The rest of the world within their sphere of knowledge they divided into ager Romanus, which in its larger sense included the two districts above mentioned, Gabinus, peregrinus, hosticus, and incertus.[632] For the comitia the two inner regions were alone important: (1) the auspication of assemblies held in the city had to be performed within the pomerium; (2) as often as the magistrate in passing from the city to the Campus Martius to hold the comitia centuriata crossed the pomerium,[633] or more strictly the brook Petronia,[634] he was obliged to take the special auspices of crossing. Beyond the ager effatus assemblies were not ordinarily held.

Originally the most common form of divination must have been the watching of the flight of birds, for it is from this ceremony that the word auspicium is derived.[635] Legend accordingly asserts that Romulus founded the city on the Palatine under the auspices of twelve vultures.[636] Before the end of the republic, however, all other forms of public auspicia impetrativa in the city had given way to the caelestia, especially the lightning and thunder.[637] The reason is that the heavenly signs could be most easily understood and carried greatest weight; whereas other auspices had to be held for each individual act, the celestial omens of the morning served the magistrate for all his undertakings during the entire day.[638] The effect of heavenly signs on assemblies of the people, however, was peculiar. Not only were comitia and contiones interrupted by storms;[639] not only was it impious to hold an assembly while it was lightning or thundering,[640] but even while the magistrate was auspicating at daybreak, if a flash of lightning appeared on the left—a sign favorable for every other undertaking—he dared not hold the assembly on that day.[641] Some favorable comitial sign the magistrate was supposed to perceive,[642] but what it was we do not know.

The general rule that the auspices should be taken for an act on the very spot on which the magistrate intended to perform the act applied to the comitial auspices. For meetings on the Capitoline Hill they probably used the temple of Jupiter, dedicated for all time;[643] for assemblies in the comitium the rostra, also a templum;[644] and for the comitia centuriata the president’s platform in the Campus Martius.[645] Not only patrician magistrates but also tribunes of the plebs occupied templa in transacting business with the people.[646]

Between midnight and morning[647] on the day of assembly the magistrate repaired to the templum.[648] There, placing himself on a solid[649] seat at the door, usually facing eastward, he watched the heavens (spectio). Meanwhile he first asked the attendant, who always sat near,[650] whether there was silence.[651] If the answer was affirmative, he prayed Jupiter for a sign, which he described in a formula termed legum dictio,[652] whereupon the attendant declared he saw it.[653] In case of non-appearance of the sign or of a disturbance of the observation, the auspication was deferred to another morning.[654] Before the time of Cicero, however, the ceremony had been so reduced to a pretence as practically to eliminate the possibility of failure.[655]

Both curiate[656] and centuriate[657] assemblies were auspicated. Although for the tribal assemblies the question is more difficult, it seems reasonably certain that whereas a patrician magistrate took the auspices for the comitia tributa,[658] plebeian magistrates (tribunes and aediles of the plebs) did not.[659]

As to whether contiones were auspicated we are not clearly informed. The question concerns those only which were held by patrician magistrates. The auspication of comitia necessarily extended to the contio immediately preceding.[660] It is known, too, that the censors auspicated the lustral gathering of the centuries,[661] hence we may infer that magistrates and sacerdotes were accustomed to take auspices for formal religious assemblies.[662] With these exceptions contiones were doubtless held without auspices by patrician as well as by plebeian magistrates.

III. Auspicia Publica Oblativa

If Jupiter had approved the holding of an assembly, the magistrate was not for that reason necessarily done with auspices. Though the impetrativa may have favored, prohibitive oblativa were still possible, for circumstances might cause the god to change his mind so as to forbid what he had previously sanctioned; and the warning omen might come at any time before the act was completed. Sometimes the magistrate himself discovered, or for the accomplishment of his purpose pretended to discover, the evil omen. When for instance Pompey was holding an assembly for the election of praetors, and Cato, a political opponent, offered himself as a candidate, Pompey, seeing the assembly unanimous for this man, declared that he heard a clap of thunder, and thus by an adjournment succeeded in preventing the election.[663] Sometimes the magistrate was informed of the omen by (1) a private person, (2) an augur, or (3) another magistrate. In the first two cases the report was termed nuntiatio, in the third obnuntiatio.[664] Information received from a private citizen the president could credit or not as he saw fit, or he could declare it irrelevant;[665] but the law compelled him to accept the nuntiatio of an augur or the obnuntiatio of another magistrate.

Prohibitive auspicia oblativa included evil omens of all kinds. When in 310 the dictator called the curiae for passing the lex de imperio, it chanced that the Curia Faucia was the first to vote (principium). Now this curia was ill omened because on two earlier occasions it had happened to be principium at a time of great national disaster. The dictator accordingly adjourned the meeting till the following day, when he again summoned it after renewing the auspicia impetrativa.[666] A case of epilepsy, by vitiating the business of the assembly, required an adjournment; and for that reason the malady was called the comitial sickness.[667] In the later republic the chief oblativa had come to be caelestia; and it could happen that the auspicia impetrativa of any magistrate might as oblativa vitiate the comitia of another. For this reason when a higher magistrate was about to hold an assembly, he forbade the taking of auspices by all inferior to him, for fear they might annul his proceedings.[668]

Although the augurs had neither the auspicia impetrativa nor the right to watch the sky for unfavorable omens,[669] they were competent to report (nuntiatio) unexpected oblativa to the magistrates.[670] Their object in attending the comitia accordingly was not only to assist the president with their special knowledge,[671] but also to witness the religious legality of the proceeding. In the latter function the augur derived great influence[672] from the possibility of an investigation into such legality by the augural college and the senate, which might result in the annulment of the act.[673] For this reason witnessing augurs were granted the privilege of adjourning the assembly in case they perceived unfavorable omens.[674] Cicero[675] describes in detail such an adjournment of an electoral assembly of centuries: “Behold the day for the election of Dolabella! The prerogative century is drawn by lot, he (the augur) remains quiet. The vote is announced, he is silent. The first class is called and the announcement made. Then as usual the suffragia (of the equites?) were summoned; then the second class is called. All this happened more quickly than I have told it.

“When the business is over, that excellent augur says, ‘We adjourn to another day.’ O remarkable impudence! What (omen) had you seen? What had you felt? What had you heard?” Antony, who was both consul and augur, presiding over the electoral assembly, allowed the voting to continue till a majority was nearly reached in favor of Dolabella, when, making use of the augural formula, he adjourned the meeting. This procedure was in itself legal; but Antony had from the beginning of the year boasted of his intention to prevent through augury this man’s election. As only magistrates, through their right to the spectio, to be explained hereafter, could with certainty predict an evil omen,[676] it was evident that Antony, acting merely as augur, made a fictitious report.

Augurs were always present at meetings of the curiae,[677] of the centuries,[678] and of the tribes under the presidency of a patrician magistrate.[679] That they attended the meetings of the plebs as well and had the same relation to the plebeian as to the other assemblies is necessarily implied in Cicero’s[680] question, “What shows greater religious power than to be able to grant or refuse to grant the right to transact business with the people or with the plebs?”

If the person who reported the evil omen was not an augur but a magistrate, the president was equally bound to heed it and to dismiss the assembly;[681] and the force of the obnuntiatio was not in any way affected by the relative official rank of the two persons concerned. When accordingly a higher magistrate had set a day for an assembly, he forbade all inferior magistrates not only to take the auspicia impetrativa,[682] but also to watch the sky—de caelo servare—for any purpose on that day, for fear that some omen unfavorable to the comitia might be seen.[683] A consul for instance could prevent a quaestor from scanning the heavens on any particular day; and the senate on the rare occasions when it felt itself sufficiently strong, suspended for a particular act of the assembly the right of all magistrates to receive and to announce unfavorable omens.[684] In the absence of senatorial interference it remained possible for any higher magistrate to scan the heavens—de caelo servare—on an assembly day appointed by another, and to vitiate the comitia by reporting an unfavorable omen. We find accordingly a consul obnuntiating against a colleague[685] and against the pontifex maximus,[686] a praetor against a tribune of the plebs,[687] and a tribune against a consul[688] or a censor,[689] as well as against a colleague.[690]

So certain was it that a magistrate who looked for a bad omen would see one that the expression “to watch the sky” became equivalent to discovering an unpropitious sign. The rule was therefore formulated that “religion forbade the transaction of any business with the people when it was known that the sky was watched.”[691] If accordingly a magistrate announced that he intended to scan the heavens on the day appointed for an assembly, this declaration was in itself sufficient in the ordinary course of events to compel a postponement. In the year 57 Milo, a tribune of the plebs, pushed the custom to extremes by declaring his intention to observe the sky on all comitial days.[692] Strictly the observation had to be made and reported before the assembly met. “Can any one divine beforehand,” Cicero[693] asks, “what defect there will be in the auspices, except the man who has already determined to watch the heavens? This in the first place the law forbids to be done in the time of an assembly; and if any one has been observing the sky, he is bound to give notice of it, not after the comitia are assembled, but before they meet.” In the case belonging to the year 57 referred to above, Milo, the tribune, came into the Campus Martius before midnight in order to anticipate the arrival of the consul Metellus, who wished to hold the elections. The assembly ordinarily met at sunrise, and could not convene after midday. Milo accordingly remained on that day till noon, without seeing the consul. Then Metellus demanded that for the future the obnuntiatio should be served on him in the Forum; it was unnecessary, he said, to go to the Campus before daybreak; he promised to be in the comitium at the first hour of the day. As Milo was coming into the Forum before sunrise on the next comitial day, he discovered Metellus stealing hurriedly to the Campus by an unusual route. The tribune came upon him and served the notice.[694]

The consul’s announcement of intention to watch the sky might be strengthened by a proclamation declaring certain or all comitial days for the remainder of the year to be holidays, on which the people could not legally transact business in assembly.[695]

Although the obnuntiatio doubtless originated in the early republic, it played no considerable part in political strife till after the Gracchi. A great impetus to the abuse of the power was given by the Aelian and Fufian laws, which were probably two plebiscites[696] passed about 150.[697] What features of these statutes were new has not been precisely determined. It is certain, however, that they made possible the condition in which we find the spectio and obnuntiatio before the legislation of Clodius on the subject in 58. As the tribune did not originally have the obnuntiatio, we may infer that in all probability these laws granted him the right to exercise it against patrician magistrates in the way described above. Similarly from the fact that the plebeian tribal assembly was not originally subject to religious obstruction on the part of the government, it is reasonable to conclude that the Aelian and Fufian statutes gave the patrician magistrates the obnuntiatio against that body.[698] It was equivalent to a power of veto, which the aristocracy could now exercise upon tribunician legislation, hence Cicero[699] regards the two statutes as most holy[700] means of “weakening and repressing the fury of the tribunes,” and as the “surest protection of the commonwealth.”[701] Notwithstanding the opinion of Lange,[702] that the obnuntiatio was restricted to legislation, it seems clear from the words of Cicero,[703] as well as from the lack of reference in the sources to such a limitation, that it applied equally to elections. So long, however, as the nobility could depend for support upon the tribunes, it had little need of such a power. But in the last years of the republic, after the tribunician veto had been undermined by Ti. Gracchus and Appuleius Saturninus, and the tribunes were again acting independently of the senate as in the early history of their office, optimates and populares, taking full advantage of the Aelian and Fufian laws, alike exploited the auspices recklessly for partisan objects. Their behavior was a sign of both religious and political disintegration. Vatinius, tribune of the plebs in 59, had the boldness utterly to disregard these statutes;[704] and in 58 the tribune Clodius repealed them in so far as they affected legislation,[705] whereas for elections the obnuntiatio still remained in force.[706] The misuse of auspices for political purposes dates back, according to Livy,[707] to the beginning of the Samnite wars. Although this may be an anticipation of later conditions, there can be no doubt as to the attitude of statesmen toward the custom in the closing years of the Punic wars.[708] In the time of Clodius and Cicero, while some maintained a sincere belief in these ceremonies, doubtless the great majority of public men saw in their use nothing more than political chicanery calculated, by deceiving the multitude, to keep the real power in the hands of a few.[709]

Rubino, J., Untersuchungen über röm. Verfassung und Geschichte, 34-106; Nissen, H., Das Templum; Mommsen, Röm. Staatsrecht, i. 76-116; Marquardt, J., Röm. Staatsverwaltung, iii. 397-415; Lange, L., Röm. Altertümer, 3 vols, index s. Augures, Auspicia, Inauguratio, etc.; De legibus Aelia et Fufia commentatio, in Kleine Schriften, i. 274-341; Herzog, E., Geschichte und System der röm. Staatsverfassung, 621-30, see also index s. Augures, Auspicien; Müller-Deecke, Etrusker, ii. 114-27; Gilbert, O., Geschichte und Topographie der Stadt Rom im Altertum, 3 vols., index s. Auguraculum, Augures; Wissowa, G., Religion und Kultus der Römer, 450-60; Augures, in Pauly-Wissowa, Real-Encycl. ii. 2313-44; Auspicium, ibid. ii. 2580-7; Aust, E., Religion der Römer, index s. Auguraculum, Augurn, Auspicia, etc.; Iuppiter Elicius, in Roscher, Ausführliches Lexikon der griech. und röm. Mythologie, ii. 656-61; Bouché-Leclerq, A., Histoire de la Divination dans Antiquité, iv. 134-285 (sources and modern literature, p. 180 f.); Augures, in Daremberg et Saglio, Dict. i. 550-60; Auspicia, ibid. i. 580-5; Spinazzola, V., Augures, in Ruggiero, Dizionario epigrafico, i. 778-810; Ruggiero, ibid. i. 950 f.; De Marchi, A., Il Culto privato di Roma antica, i. 152 ff., 232 ff.; Valeton, I. M. J., De modis auspicandi Romanorum, in Mnemosyne, N. S. xvii (1889). 275-325, 418-52; xviii. 208-64, 406-56; De iure obnuntiandi comitiis et conciliis, ibid. xix (1891). 75-113, 229-70; De templis Romanis, ibid. xx (1892). 338-90; xxi. 62-91, 397-440; xxiii. 15-79; xxv. 93-144, 361-85; xxvi. 1-93 (papers in the last two vols. are on the pomerium); Luterbacher, F., Der Prodigienglaube und Prodigienstil der Römer, 2 ed.; Wülker, L., Die geschichtliche Entwickelung des Prodigienswesens bei den Römern; Willoughby, W. W., Political Theories of the Ancient World, ch. xv.

PART II
THE ASSEMBLIES
ORGANIZATION, PROCEDURE, AND FUNCTIONS, RESOLUTIONS, STATUTES, AND CASES

CHAPTER VI
COMITIA AND CONCILIUM

In treating of the distinction between comitia and concilium scholars have invariably begun with the juristic definition of Laelius Felix,[710] quoted by Gellius,[711] “He who orders not the whole people but some part of it to be present (in assembly) ought to proclaim not comitia but a concilium;” they have limited themselves to illustrating this definition, and to setting down as lax or inaccurate the many uses of the two words which cannot be forced into line with it. The object of this discussion, on the contrary, is to consider all the occurrences of these words in the principal extant literature, especially prose, of the republic and of the Augustan age—a period in which the assemblies were still in existence—for the purpose of testing the definition of Laelius, and of establishing new definitions by induction in case his should prove wrong.

It is convenient to begin with Livy, who though an imperial writer, and under the stylistic influence of his age, probably adhered in the main to the technical terminology of the republican annalists from whom he drew. The first point which will be established is that in Livy’s usage the difference between comitia and concilium is not a difference between the whole people and a part of the people.[712]

The plebeian tribal assembly is termed comitia in Livy ii. 56. 1, 2; ii. 58. 1; ii. 60. 4; iii. 13. 9 (“Verginio comitia habente conlegae appellati dimisere concilium,” in which comitia and concilium in one sentence are applied to the same assembly); iii. 17. 4 (the comitia for passing the Terentilian law, which from Livy’s point of view was the plebeian assembly);[713] iii. 24. 9; iii. 30. 6; iii. 51. 8 (comitia of plebeian soldiers for electing military tribunes and tribunes of the plebs); iii. 54. 9, 11: (plebeian comitia under the pontifex maximus); iv. 44. 1; v. 10. 10; vi. 35. 10 (“Comitia praeter aedilium tribunorumque plebi nulla sunt habita”); vi. 36. 9 (the comitia for voting on the Licinian-Sextian laws); vi. 39. 5; xxv. 4. 6; xxxiv. 2. 11; xlv. 35. 7. Other examples of comitia of a part of the people are Livy ii. 64. 1 (as the plebeians refused to participate in the consular election, the patricians and clients held the comitia); xxvi. 2. 2 (comitia held by the soldiers, and hence by only a part of the people, for the election of a propraetor). Still more to the point are the comitia sacerdotum: for electing a chief pontiff, Livy xxv. 5. 2; for electing an augur, xxxix. 45. 8; for electing a chief curio, xxvii. 8. 1. Comitia sacerdotum were composed of seventeen tribes, and hence of only a part of the people.[714] Lastly is to be noted the fact that the plebeian assembly met on a comitialis dies; Livy iii. 11. 3.

It is now sufficiently established that Livy often applies the term comitia to the assembly of plebs and to other assemblies which included but a part of the people. It is equally true that he uses concilium to denote an assembly of the whole people. The principal instances of Roman assemblies are:

(1) Livy i. 8. 1: “Vocataque ad concilium multitudine, quae coalescere in populi unius corpus nulla re praeterquam legibus poterat, iura dedit.”

(2) i. 26. 5: “Concilio populi advocato” (for the trial of Horatius).

(3) i. 36. 6: “Auguriis certe sacerdotioque augurum tantus honos accessit, ut nihil belli domique postea nisi auspicato gereretur, concilia populi, exercitus vocati, summa rerum, ubi aves non admississent, dirimerentur.”

(4) ii. 7. 7: “Vocato ad concilium populo” (representing the consul as calling the people to an assembly).

(5) iii. 71. 3: “Concilio populi a magistratibus dato” (for settling the dispute between Ardea and Aricia).

(6) vi. 20. 11: “Concilium populi indictum est” (an assembly of the people which condemned Marcus Manlius).

These instances are well known, and have often been discussed. It is enough for our purpose to note here that they prove Livy’s willingness to designate assemblies of the whole Roman people as concilia. But Mommsen[715] was not satisfied with regarding all these cases as inaccurate. In spite of Laelius he believed that concilium could sometimes properly apply to assemblies of all the people. With reference to the first example given above he says that where concilium denotes an assembly of all the people, the contio is meant—in other words, a concilium of all the people is an assembly which has not been summoned with a view to voting, and is not organized in voting divisions. This new definition might explain example (1), for possibly Livy did not think of the first Roman assembly as voting on the laws which Romulus gave, or even as organized. Unfortunately Mommsen tries to support his definition by example (2), which refers to the assembly for the trial of Horatius. But in ch. 26. 12 the same assembly, which must have been the gathering of the curiae, and which Cicero[716] speaks of as comitia, voted the acquittal of the accused. Hence it could not have been a mere contio. Another passage cited in support of his view, Livy ii. 7. 7, example (4), represents the consul as calling the people to a concilium. First he addressed them (“in contionem escendit”), and afterward laws were passed on the subject of which he treated in his speech—evidently by the same assembly; hence the concilium populi here mentioned was something more than a contio. Another illustration which Mommsen offers, but which, having to do with a Roman assembly only by implication, is not included in the list of examples given above, is Livy v. 43. 8: “When he had pushed into the midst of the contio, though hitherto accustomed to keep away from such concilia.”[717] The passage refers to a meeting of the Ardeates for consulting in regard to the sudden approach of the Gauls. Gatherings of the kind were called concilia, but the word contio is also introduced into the passage with reference to a speech made in the assembly. The implication is that such concilia of all the people for deliberation were held also at Rome. The circumstances indicate that it met with a view also to taking action, and that it was therefore not a simple contio. This passage accordingly offers no support to Mommsen’s view that when applied to the whole people concilium is merely a listening, not an acting, assembly.[718] Summing up the evidence for the new definition of concilium, we may say that, were it true, it might apply to Livy i. 8. 1, though it is unessential to the explanation either of this passage or of any other. A single case, too, even if it were clear, is not a sufficient basis for a generalization; and though we must agree with Mommsen that the juristic definition does not cover the cases cited above, it is necessary to reject his amendment as unsatisfactory.[719]

In fact Mommsen soon discovers cases which, from his own admission, neither his definition nor that of Laelius will explain, for instance, Livy i. 36. 6, example (3). On this citation Mommsen[720] remarks that concilia in this connection could not mean contiones, with which in his opinion the auspices had nothing to do; it could not refer to the plebeian assemblies, which he also assumes to have been free from the auspices.[721] He concludes, therefore, that it denotes the “patricio-plebeian” tribal assemblies.[722] But why Livy should here be thinking merely of the tribal assemblies, especially in connection with a time before they had come into existence, no one could possibly explain. It is far more reasonable to assume that he intended to include all kinds of assemblies, curiate, centuriate, and tribal, which required the auspices. The next citation which Mommsen finds difficult is Livy iii. 71. 3, example (5)—an assembly of the tribes meeting under the consuls to decide the dispute between Ardea and Aricia over a piece of territory. The assembly voted (ch. 72. 6) that the land in question belonged to the Roman people. Mommsen’s[723] explanation of concilium in this connection is that the resolution adopted by this assembly affected foreign states only, and was not binding on Rome; hence he assumes that comitia are an assembly whose resolutions are binding on the Roman state. Here then we have a third definition of concilium based like the second on a single case. But Mommsen thinks he finds some evidence for his last definition in the fact that assemblies of foreign states are usually termed concilia; and he assumes the reason to be that their resolutions were not binding on Rome. It would be strange, however, if in calling foreign institutions by Latin names (rex, senatus, populus, plebs, praetor, dictator, etc.) Roman writers attempted to show a connection between these institutions and Rome, seeing that in most cases no such connection could exist. The proposed explanation of this use of concilium becomes actually absurd when it is extended to foreign comitia; Mommsen certainly would not say that the resolutions of the Syracusan comitia, mentioned by Livy, were binding on Rome.

His last and most difficult case is Livy vi. 20. 11—the concilium populi which condemned Marcus Manlius, example (6), p. 121. Evidently this was the centuriate assembly, which alone had the right to try capital cases, and which alone had to meet outside the pomerium. Various feeble explanations have been proposed; but Mommsen, with others, prefers to consider the word wrongly used. It is true that if we accept the juristic definition, we must conclude that Livy is guilty of error not only in this case but wherever he applies the term concilium to an assembly of all the people, Roman or foreign; but as we shall proceed by induction, we must, at least provisionally, consider all the cases correct, and frame our definitions accordingly.

We have now reviewed a number of passages in Livy in which concilium includes all the Romans. There remains a large group of passages which refer to foreign assemblies. In considering these cases we are to bear in mind that the Romans apply to foreign institutions in general the Latin terms with which they are familiar, and in the same sense in which these terms are used of Roman institutions; in this way only could they make themselves understood.

Concilium populi and concilia populorum are frequent (e.g. Livy vii. 25. 5; x. 10. 11; 14. 3; xxi. 14. 1; xxiv. 37. 11), and most of the assemblies of foreign states designated as concilia are known to have admitted both nobles and commons.

Instances of concilia in foreign states are: Alba Longa, Livy i. 6. 1; Latins, Livy i. 50-52; vi. 10. 7; vii. 25. 5; viii. 3. 10; xxvii. 9. 2; Aequians, Livy iii. 2. 3; ix. 45. 8; Antium, Roman colony at, Livy iii. 10. 8; Veii, Livy v. 1. 8; Etruria, Livy v. 17. 6; x. 10. 11; 13. 3; 14. 3; Gauls, Livy v. 36. 1; xxi. 20. 1; Hernicans, Livy vi. 10. 7; Samnites, Livy x. 12. 2; Saguntines, Livy xxi. 14. 1; Iberians, Livy xxi. 19. 9, 11; xxix. 3. 1, 4; Enna, Livy xxiv. 37. 11; Aetolians, Livy xxvi. 24. 1; xxvii. 29. 10; xxxi. 29. 1, 2, 8; 32. 3, 4; xxxiii. 3. 7; 12. 6: xxxiv. 41. 5; xxxv. 32. 3, 5; 33. 1, 4; 34. 2; 43. 7; xxxvi. 26. 1; 28. 7, 9; xxxviii. 9. 11; 10. 2; xlii. 6; Achaeans, Livy xxvii. 30. 6; xxxi. 25. 2; xxxii. 19. 4, 5, 9; 20. 1; 21. 2; 22. 3, 9, 12; xxxv. 25. 4; 27. 11; 48. 1; xxxvi. 31. 9, 10; 32. 9; 34. 1; 35. 7; xxxviii. 31. 1; 32. 3; 34. 5; 35. 1; xxxix. 33, 35, 36, 37, 48, 50; xli. 24; xlii. 12; xliii. 17; Epirus, Livy xxxii. 10. 2; xlii. 38. 1: Boeotians, Livy xxxiii. 1. 7; 2. 1, 7; xxxvi. 6. 3; xlii. 43, 44, 47; Acarnanians, Livy xxxiii. 16. 3, 5, 8; xliii. 17; Thessalians, Livy xxxiv. 51. 5; xxxv. 31. 3; xxxvi. 8. 2; xlii. 38; Argos, Livy xlii. 44; Macedonians, Livy xlv. 18.

Though most of these concilia are known to have been assemblies of the whole people, nobles and commons, very rarely, as in Livy x. 16. 3, the word signifies a council of a few men—in this case, of the leading men of Etruria (cf. xxxvi. 6. 6); and twice, at Capua, we hear of a plebis concilium; Livy xxiii. 4. 4; xxvi. 16. 9. From the frequency of the first-mentioned use we must conclude that Livy does not hesitate to designate as concilia assemblies of the whole people.

Comitia, on the other hand, more rarely applies to foreign assemblies. We hear of comitia of the Veientans (Livy v. 1. 1), of the Syracusans (Livy xxiv. 23. 1; 26. 16; 27. 1), of the Argives (Livy xxxii. 25. 2), of the Boeotians (Livy xxxiii. 27. 8), and of the Thessalians (Livy xxxiv. 51. 5).

The conclusions thus far reached are as follows:

I. As to Comitia:

1. Livy frequently uses comitia to denote the tribal assembly of the plebs.

2. He always uses comitia to denote the assembly for the election of priests, consisting of but seventeen tribes, and hence of a minority of the people.

II. As to Concilium:

1. He frequently uses concilia (rarely comitia) to denote foreign assemblies of all the people.

2. Less frequently he uses concilia to denote Roman assemblies of all the people.

Mommsen and others admit, however, that Livy’s usage does not conform strictly to the definition of Laelius Felix; they assume accordingly that the exact meaning of comitia was lost in imperial times, that for the correct usage we should look to the republican writers.

As Caesar has little occasion for employing the terms in relation to the Roman assemblies, his usage on purely Roman grounds cannot be made out. Foreign assemblies—that is, of Gauls—he generally designates as concilia: B. G. i. 30, 31; iii. 18; v. 2, 6, 24, 56 f.; vi. 3, 20; vii. 63, 89; viii. 20 (Hirtius). In all these cases the concilium is a tribal or national assembly including both nobles and commons; more rarely the word signifies a council of chiefs; B. G. i. 33; vii. 75; and perhaps vii. 1. Once he applies comitia to Gallic assemblies; B. G. vii. 67. So far, therefore, as his usage can be determined, it does not differ from Livy’s. From Macrobius, Sat. i. 16. 29 (“Contra Julius Caesar XVI auspiciorum negat, nundinis contionem advocari posse: id est cum populo agere: ideoque nundinis Romanorum haberi comitia non posse”), it appears that in Lucius Julius Caesar’s[724] augural language, which must certainly have been conservative, contio was a general word including comitia. This passage, with the similar one in Cicero, Att. iv. 3. 4, suggests that the distinctions between contio, comitia, and concilium, far from breaking down in late republican times, were only then taking form.

The material furnished by Sallust is more conclusive. In Hist. ii. 22, concilium Gallorum doubtless signifies a national assembly; and although generally comitia refers to the centuriate gathering (Cat. 24, 26; Iug. 36, 44), in Iug. 37 (“P. Lucullus and L. Annius, tribunes of the plebs, against the efforts of their colleagues strove to prolong their office, and this dissension put off the comitia through all the rest of the year”)[725] it clearly designates the assembly of the plebs. His usage accordingly, which allows concilium sometimes to apply to an assembly of the whole people and comitia to an assembly of a part of the people, does not differ from that of Livy.

Cicero, however, is the author on whom scholars rely in support of the definition of Laelius. Following Berns,[726] they say Cicero has violated the rule but once, Att. i. 1. 1, in which occurs the phrase comitiis tribuniciis. Berns’ examination of Cicero must have been exceedingly hasty, as he has left a number of instances unnoticed. The following passage is especially to the point, Q. Fr. ii. 14 (15 b). 4:

“The candidates for the tribuneship have made a mutual compact—having deposited five hundred sestertia apiece with Cato, they agree to conduct their canvass according to his direction, with the understanding that any one offending against it is to be condemned by him. If these comitia, then, turn out to be pure, Cato will have been of more avail than all laws and jurors put together.”[727]

The tribunician comitia are the only comitia concerned in Cato’s transaction. Again in Att. ii. 23. 3 (“It is of great interest to me that you should be present at Rome, if not at the comitia for his election, at least after he has been declared elected”)[728] Cicero is thinking of the election of Clodius to the tribuneship, and hence the comitia he refers to are the assembly of plebs. In Fam. viii. 4. 3, “aedilium plebis comitiis” must refer to the plebeian assembly, in which the plebeian aediles were elected.[729] Another important passage is Sest. 51. 109:

“I come now to the comitia whether for electing magistrates or for enacting laws. We often see laws passed in great numbers. I say nothing of those which are enacted in such a manner that scarcely five of each tribe, and those not from their own tribe, voted for them. He (Clodius) says that at the time of that ruin of the republic he carried a law concerning me, whom he called a tyrant and the destroyer of liberty. Who is there who will confess that he gave a vote when this law was passed against me? But when in compliance with the same resolution of the senate, a law was passed about me in the comitia centuriata, who is there who does not profess that then he was present, and that he gave a vote in favor of my safety? Which cause, then, is the one which ought to appear popular? That in which everything that is honorable in the city, and every age, and every rank of men agree? Or that to the carrying of which some excited furies fly as if hastening to a banquet on the funeral of the republic?”[730]

The law which Cicero dwells on with such bitterness at the beginning of this passage and recurs to at the end is the tribunician law which pronounced on him the sentence of exile; in this connection, therefore, comitia distinctly includes the plebeian assembly in its legislative capacity.

Even more telling is Leg. iii. 19. 44-45:

“They (our ancestors) forbade the enactment of laws regarding particular persons except by the comitia centuriata. For when the people are organized according to wealth, rank, and age, they use more consideration in giving their votes than when summoned promiscuously by tribes. In our case, therefore, a man of great ability and of consummate prudence, Lucius Cotta, truly insisted that no act whatever had been passed regarding us; for in addition to the fact that those comitia had been held wholly under the fear of armed slaves, the comitia tributa could not legally pass capital sentences or privilegia. Consequently there was no need of a law to reinstate us, against whom exile had not been legally pronounced. But it seemed better both to you and to other most illustrious men that all Italy should show what it felt concerning that same person against whom some slaves and robbers declared they had passed a decree.”[731]

Cicero is here contrasting the comitia centuriata, which recalled him, with the tribal assembly of the plebs, which pronounced the sentence of exile. Now as he was condemned by the plebeian assembly, it is clear that in this passage Cicero calls the plebeian assembly comitia. How Mommsen[732] can make this citation refer to his “patricio-plebeian” comitia tributa no one can possibly explain. In Att. iii. 12. 1, comitia expressly includes the tribunician elections. The same elections are twice called comitia in Att. iii. 14; and in iii. 13. 1, Cicero, again mentioning these comitia, says: “In tribunis plebis designatis reliqua spes est.” From all these passages it becomes evident that Cicero regards the plebeian assembly as comitia. In many passages comitia seems to include all the elections of the year, of plebeian as well as of patrician magistrates; for the elections were usually held in the same season, and could not well be separated in thought.[733] In fact, according to Cicero’s usage, comitia includes all kinds of national assemblies which do not come under the term contiones; cf. Sest. 50. 106:

“In three places can the judgment and the will of the Roman people be best discovered, in contio, in comitia, and in the gathering for the festivals and the gladiatorial shows.”[734] Cf. also 54. 115; 59. 125.

The very phrase comitia populi (Rep. ii. 32. 56; Div. ii. 18. 42) implies the existence of other comitia, for instance comitia plebis. It is not strange, therefore, that Cicero should use the following expression; Rep. i. 33. 50: “The nobles who have arrogated to themselves this name, not with the consent of the people, but by their own comitia.”[735] Here he makes it evident that there may be comitia of the nobles in contrast with the “consent of the people.” Should the senate usurp the elective function, Cicero would not hesitate to call that small body comitia, as appears from his ironical expressions in Phil. xi. 8. 19 (“Quod si comitia placet in senatu haberi” and “Quae igitur haec comitia”), in which he anticipates imperial usage; cf. Vell. ii. 124; Tac. Ann. i. 15.

Furthermore he speaks of comitia, consisting of but seventeen tribes, for the election of sacerdotes; Cael. 8. 19; Leg. Agr. ii. 7. 18; Ad Brut. i. 5. 3 f.; 14. 1; Fam. viii. 12. 4; 14. 1.

From his point of view, a tribal assembly of the whole people was one which consisted of all thirty-five tribes, irrespective of the number present in the several tribes, irrespective, too, of the rank of those who attended. An assembly tributim of a part of the people, on the other hand, was one in which some of the tribes were unrepresented. All this is clearly expressed in Leg. Agr. ii. 7. 16 f.:

“For it orders the tribune of the plebs who has passed this law to elect ten decemvirs by the votes of seventeen tribes in such a way that he shall be decemvir whom nine tribes (a majority of the seventeen) have elected. Here I ask on what account he (the proposer of the law) has made a beginning of his measures and statutes in such form as to deprive the Roman people of their right to vote.... For since it is fitting for every power, command, and commission to proceed from the entire Roman people, those especially ought to do so which are established for some use or advantage of the people, in which case they all together choose also the man who they think will look out more carefully for the interest of the Roman people, and each one by his own zeal and his own vote assists to make a road by which he may obtain some individual benefit for himself. This is the tribune to whom it has occurred, more than to any one else, to deprive the entire Roman people of the right to vote, and to summon a few tribes, not by any fixed legal condition, but by the favor of sortition, to usurp the liberty of all.”[736]

Even if the tribes were represented by no more than five men each, and these men not voting in their own tribes, the assembly was nevertheless comitia tributa populi.[737] This distinction—recognized by Cicero and his contemporaries—between an assembly of the whole people as represented by all the voting divisions and an assembly of a part of the people as represented by some of the voting divisions, is incompatible with the distinction formulated by Laelius. Though an antiquarian might make much of the presence or absence of a few patricians, a man who lived in the present, as did Cicero, probably never troubled himself about such unpractical matters.[738]

From the evidence as to Cicero’s usage given above, we must draw the following conclusions:

1. He often uses comitia to denote the plebeian tribal assembly, just as Livy does.

2. He regularly uses comitia to denote the assembly of seventeen tribes for the election of sacerdotes. In this respect his usage is the same as Livy’s.

3. He is ready to call the senate comitia, should it usurp the elective function—an anticipation of imperial usage.

4. His distinction between an assembly of the whole people and an assembly of a part of the people is incompatible with the definition of Laelius.

Concilium is comparatively rare in Cicero’s works. In a few cases he seems to make concilia include all kinds of organized national gatherings; cf. Rep. vi. 13 (3). 13: “Nihil est enim illi principi deo ... acceptius quam concilia coetusque hominum iure sociati, quae civitates appellantur (Nothing is more agreeable to the Supreme Being than assemblies and gatherings of men which are joined in societies by law and which are called states”); Fin. iii. 19. 63: “Natura sumus apti ad coetus, concilia, civitates.” In the first citation concilium must, and in the second it may, include all the citizens. Cicero could hardly mean that we are by nature adapted to assemblies of a part of the people, or that nothing could be more satisfactory to the Supreme Being than the concilium plebis which interdicted him from fire and water. In Fin. ii. 24. 77 (“To me those sentiments seem genuine which are honorable, praiseworthy, and creditable, which may be expressed in the senate, before the people, and in every gathering and concilium”) he could not be thinking simply of the plebeian assembly, for he placed far greater value on the opinions expressed in and by the comitia centuriata.[739]

From all that has been said it is evident that Cicero’s usage as well as Sallust’s does not differ from that of Livy. In fact no variation can be found in all the extant literature of the republic.[740] But it may be asked whether there was not a juristic tradition separate from the literary and preserving from early time the true distinction between the two words under discussion. A negative answer is compelled by the fact that history had its origin with jurisprudence in the pontifical college, that from the beginning historian and jurist were often united in the same person.[741] Hence the juristic usage was the same as the literary. It is thoroughly established, therefore, that in the late republic, as well as in the early empire, the distinction between comitia and concilium was not a distinction between the whole and a part; in fact, it becomes doubtful whether the definition of Laelius was known to the writers of this period.

The results thus far reached are of great importance; the definition of comitia and concilium formulated by Laelius has been set aside, and the ground prepared for the establishment of new definitions by induction. From the material afforded by the authors under discussion, the following conclusions relative to the general uses of the two words may be drawn:

I. (a) The phrases comitia curiata, comitia centuriata, comitia tributa constantly occur; whereas (b) the phrases concilium curiatum (or -tim), concilium centuriatum (or -tim), concilium tributum (or -tim) cannot be found.

(a) The former is too well known to need illustration; (b) the latter may be sufficiently established by an examination of the references for concilium given in this chapter.

II. (a) Concilium may apply to a non-political as well as to a political gathering; (b) comitia is wholly restricted to the political sphere.

(a) Concilium is non-political in Cicero, Div. i. 24. 49 (deorum concilium); Tusc. iv. 32. 69; N. D. i. 8. 18; Off. iii. 5. 25; 9. 38: Senec. 23. 84; Fin. ii. 4. 12 (virtutum concilium); Rep. i. 17. 28 (doctissimorum hominum in concilio); Sest. 14. 32 (applied to the meeting of a collegium); Livy i. 21. 3 (Camenarum concilia); ii. 38. 4; xxvii. 35. 4.[742]

III. Within the political sphere, again, (a) concilium is the more general term,—it suggests neither organization nor lack of organization; whereas (b) comitia is restricted to the organized assembly.

(a) Concilium is the more general term in Cicero, Fin. iii. 19. 63; ii. 24. 77; Rep. vi. 13 (3). 13.[743] In all these citations concilia, denoting assemblies of the whole people, must certainly include organized meetings, without excluding the unorganized. In Leg. iii. 19. 42 (“Invito eo qui cum populo ageret, seditionem non posse fieri, quippe cui liceat concilium, simul atque intercessum turbarique coeptum sit, dimittere”) concilium is probably the organized assembly. On the other hand, the concilium of all the people mentioned by Livy, i. 8. 1, may have been unorganized.

IV. Within the province of organized national gatherings, on the other hand, (a) comitia is the wider term, applying as it does to all assemblies of the kind, whatever their function; whereas (b) concilium as an organized national assembly is wholly restricted to legislative and judicial functions.[744]

(a) Comitia is used in its most general sense in Cicero, Div. i. 45. 103; ii. 18. 42 f.; 35. 74; Tusc. iv. 1. 1.[745]

V. (a) Applied to foreign institutions, comitia always designates electoral assemblies; (b) as at Rome, concilia are always legislative or judicial assemblies.[746]

(a) Comitia is used of foreign states in:

Caesar, B. G. vii. 67; Cicero, Verr. II. ii. 52. 128 (three occurrences), 129, 130; 53. 133; 54. 136; Fam. viii. 1. 2; Livy v. 1. 1; xxiv. 23. 1; 26. 16; 27. 1; xxxii. 25. 2; xxxiii. 27. 8; xxxiv. 51. 5.

(b) Foreign concilia are mentioned by:

Caesar, B. G. i. 18, 19, 30, 31, 33; iii. 18; v. 2, 6, 24, 56 f.; vi. 3, 20; vii. 1, 14, 15, 63, 75, 89; viii. 20 (Hirtius); Sallust, Hist. ii. 22; Nepos, Tim. iv. 2; Livy i. 6. 1; 50-52; iii. 2. 3; 10. 8; v. 1. 8; 17. 6; 36. 1; vi. 10. 7; vii. 25. 5; viii. 3. 10; ix. 45. 8; x. 10. 11; 12. 2; 13. 3; 14. 3; xxi. 14. 1; 19. 9, 11; 20. 1; xxiv. 37. 11; xxvi. 24. 1; xxvii. 9. 2; 29. 10; 30. 6; xxix. 3. 1, 4; xxxi. 25. 2.; 29. 1, 2, 8; 32. 3, 4; xxxii. 10. 2; 19. 4, 5, 9; 20. 1; 21. 2; 22. 3, 9, 12; xxxiii. 1. 7; 2. 1, 7; 3. 7; 12. 6; 16. 3, 5, 8; xxxiv. 41. 5; 51. 5; xxxv. 25. 4; 27. 11; 31. 3; 32. 3, 5; 33. 1, 4; 34. 2; 43. 7; 48. 1; xxxvi. 6. 3; 8. 2; 26. 1; 28. 7, 9; 31. 9, 10; 32. 9; 34. 1; 35. 7; xxxviii. 9. 11; 10. 2; 31. 1; 32. 3; 34. 5; 35. 1; xxxix. 33, 35, 36, 37, 48, 50; xli. 24; xlii. 6, 12, 38, 43, 44, 47; xliii. 17; xlv. 18. Most of these concilia are known to have been assemblies of the whole people, noble and common.[747]

VI. In the Roman state, in a great majority of cases comitia are electoral assemblies; in fact, the word may generally be understood to signify that kind of assembly, or simply elections, unless the context indicates a different meaning.

Comitia are electoral in:

Caes. B. C. i. 9; iii. 1, 2, 82; Sall. Cat. 24; Iug. 36, 37; Cic. Imp. Pomp. 1. 2; Leg. Agr. ii. 7. 18; 8. 20; 10. 26; 11. 27; 12. 31; Mil. 9. 24, 25; 15. 41; 16. 42; Mur. 1. 1; 17. 35; 18. 38; 19. 38; 25. 51; 26. 53; Phil. ii. 32. 80, 81; 33. 82; 38. 99; viii. 9. 27; xi. 8. 19; Planc. 3. 7, 8; 4. 9, 10; 6. 15; 8. 21; 20. 49, 50; 22. 53, 54; Verr. 1. 6. 17; 7. 19; 8. 22, 23; 9. 24, 25; 18. 54; II. i. 7. 19; Frag. A. vii. 48; Rep. ii. 13. 25; 17. 31; 31. 53; Att. i. 1. 1, 2; 4. 1; 10. 6; 11. 2; 16. 13; ii. 20. 6; 21. 5; 23. 3; iii. 12. 1; 13. 1; 18. 1; iv. 2. 6; 3. 3, 5; 13. 1; 17. 7; 19. 1; xii. 8; Ad Brut. i. 5. 3; 14. 1; Fam. i. 4. 1; vii. 30. 1; viii. 2. 2; 4. 3; 14. 1; x. 26; Q. Fr. ii. 1. 2; 2. 1; 11. 3; 15. 3; iii. 2. 3; 3. 2; Varro, R. R. iii. 2. 1; Nepos, Att. v. 4; Livy i. 32. 1; 35. 1; 60. 4; ii. 8. 3; 56. 1, 2; 58. 1; 60. 4, 5; iii. 6. 1; 19. 2; 20. 8; 24. 9; 30. 6; 34. 7; 35. 1, 7, 8; 37. 5, 6; 39. 8; 51. 8; 54. 9, 11; iv. 6. 9; 16. 6; 25. 14; 35. 6; 36. 4; 41. 2; 44. 1, 2, 5; 50. 8; 51. 1; 53. 13; 54. 8; 55. 4, 8; 56. 1; 57. 9; v. 9. 1, 8; 10. 10; 14. 1; 31. 1; vi. 1. 5; 22. 7; 35. 10; 36. 3, 9; 37. 4; 39. 5; 42. 9, 14; vii. 9. 4; 17. 10, 13; 19. 5; 21. 1; 22. 7, 11; viii. 3. 4; 13. 10; 16. 12; 20. 1; 23. 11, 14, 17; ix. 7. 12, 14; x. 5. 14; 11. 3; 15. 7; 16. 1; 21. 13; 22. 8; xxi. 53. 6; xxii. 33. 9, 10; 34. 1, 3, 9; 35. 2, 4; xxiii. 24. 3; 31. 7, 12; xxiv. 7. 11; 9. 5, 9; 10. 2; 11. 6; 43. 5, 9; xxv. 2. 3, 5; 5. 2; 7. 5; 41. 10; xxvi. 2. 2; 18. 4; 22. 2; 23. 1, 2; xxvii. 4. 1; 8. 1; xxviii. 10. 1, 4; 38. 11; xxix. 10. 1, 2; 11. 9, 10; xxx. 40. 5; xxxi. 49. 12; 50. 6; xxxii. 7. 8, 12; 27. 5, 6; xxxiii. 21. 9; xxxiv. 42. 3, 4; 44. 4; 53. 2; xxxv. 6. 2; 8. 1; 10. 1, 9; 20. 7; 24. 3; xxxvi. 45. 9; xxxvii. 47. 1, 6; xxxviii. 35. 1; 42. 1, 2, 4; xxxix. 6. 1; 23. 1; chs. 32, 39, 40, 41, 45; xl. 18, 37, 45, 59; xli. 6, 8, 14, 16, 17, 18, 28; xlii. 9, 28; xliii. 11, 14; xliv. 17.

Comitia are legislative or judicial in:

Cic. Dom. 28. 75; 30. 79; 32. 86; 33. 87; Har. Resp. 6. 11; Mil. 3. 7; Phil. i. 8. 19; x. 8. 17; xiii. 15. 31; Pis. 15. 35, 36; Red. in Sen. 11. 27; Sest. 30. 65; 34. 73; 51. 109; Leg. iii. 19. 45; Rep. ii. 31. 53; 35. 60; 36. 61; Att. i. 14. 5; ii. 15. 2; iv. 1. 4; xiv. 12. 1; Livy iii. 13. 9; 17. 4; 20. 7; 24. 17; 29. 6; 55. 3; vi. 36. 9; viii. 12. 15; xxv. 4. 6; xxvi. 3. 9, 12; xxxi. 6. 3, 5; xxxiv. 2. 11; xlii. 30; xliii. 16; xlv. 35.

As these lists are nearly exhaustive, they represent substantially the relative frequency of the two uses of comitia.

VII. (a) Rarely is either the centuriate assembly or the so-called patricio-plebeian tribal assembly termed concilium; (b) the plebeian tribal assembly is rarely termed comitia except when electoral.

The principal instances of the rare use of concilium under (a) are Livy i. 26. 5; 36. 6; iii. 71. 3; vi. 20. 11.[748] (b) In its legislative or judicial capacity the plebeian tribal assembly is called comitia in Cicero, Leg. iii. 19. 45; Sest. 51. 109; Livy iii. 13. 9; 17. 4; vi. 36. 9; xxv. 4. 6; xxxiv. 2. 11; xlv. 35.

This classification covers without exception all the cases in the authors under discussion. An attempt may now be made to trace the development of these uses.

The first thing to be considered is that whereas concilium is singular, comitia is plural. Undoubtedly it is a plural of the parts of which the whole is composed; in other words, the curiae, or centuries, or tribes were originally thought of as little assemblies, whose sum total formed the comitia. Comitia therefore always has reference to the parts—the voting units—of which the assembly is composed, whereas concilium as a singular views the assembly without reference to its parts. For this reason, whenever it is advisable to add a modifier to indicate the kind of organization of the assembly, comitia is always used. We find, accordingly, comitia curiata, comitia centuriata, and comitia tributa in common use, but never concilium curiatum (or -tim), concilium centuriatum (or -tim), or concilium tributum (or -tim). These last expressions, which are modern inventions, do not accord with the Roman way of viewing the assemblies. This consideration satisfactorily explains the first general use.[749]

As a non-political gathering is not made up of groups—similar to the voting divisions of the national assemblies—it cannot be called comitia. Concilium is the only term appropriate to it; hence we have the second general use of the two words.[750]

The same consideration makes concilium the more general term within the political sphere; the assembly it designates may be organized or unorganized, whereas comitia applies only to assemblies organized in voting divisions. This is the third general use.[751]

For explaining the four remaining uses it is necessary to inquire into the fundamental meaning of concilium. Although the etymology is uncertain, probability favors the ancient conjecture which derives it from “con-calare.”[752] People could only be called together for a purpose, which would most naturally be conversation, discussion, deliberation. Whatever may have been its origin, concilium certainly developed this meaning.[753] In the manuscripts and editions it is frequently interchanged with consilium,[754] and in the sources these two words are often placed in punning juxtaposition.[755] Possibly their close resemblance, founded on no etymological connection of the roots, helped create in concilium the idea of deliberation. At all events in the prose authors of the period under discussion this is the primary meaning. The deliberative character of most non-political concilia is very evident.[756] With this meaning the word could not designate an electoral assembly, which did not allow discussion;[757] it was restricted to legislative and judicial assemblies, in which the voting was preceded by deliberation. This is the fourth use.[758]

Rarely did a Roman writer have occasion to mention an election in a foreign state. Whenever he did so, however, he always used comitia. Most of the business of foreign assemblies referred to by Roman writers was concerned with international affairs—was legislative—and hence foreign assemblies are usually termed concilia.[759] This consideration accounts for the fifth general use.[760]

The sixth[761] may be easily explained. The tendency was to restrict comitia to electoral assemblies, just as concilium was restricted to legislative and judicial assemblies, though this tendency never became a rule.

The seventh[762] may be accounted for by the fact that after the passing of the Hortensian Law, the centuriate comitia came to be almost wholly electoral, while the plebeian tribal gathering became the chief statute-making body in the state. Furthermore the assembly over which the tribunes presided was far more deliberative than any other. Hence the centuriate assembly became the comitia, and the plebeian tribal assembly the concilium.[763]

The cause of the error into which Laelius[764] fell is now apparent. Finding the plebeian tribal assembly frequently termed concilium and the centuriate assembly of the whole people generally termed comitia, he hastily concluded that comitia should be restricted to assemblies of the whole people and concilia to assemblies of a part of the people. This discussion has proved, against Laelius, that for the republic and for the age of Augustus the distinction between the two words was not a distinction between the whole and a part, and that all the uses of comitia and concilium in this period may be explained by two simple facts: (1) that whereas concilium is singular, comitia is plural; (2) that concilium suggests deliberation, discussion.

A result of this inquiry is to banish the expressions “concilium tributum plebis” and “patricio-plebeian comitia tributa”—the former as impossible, the latter as unnecessary—from the nomenclature of Roman public law. There were but three forms of organized assembly—curiate, centuriate, and tribal—all equally entitled to the name “comitia.” The difference between the “comitia tributa populi” and “comitia tributa plebis” was chiefly in the presidency, as will be shown in a later chapter.[765] Contio, on the other hand, denotes the listening or witnessing assembly, unorganized or organized but never voting, whereas concilium, overlapping contio and comitia, may include voting in addition to deliberation.

Mommsen, Th., Röm. Forschungen, i. 129-217; Berns, C., De comitiorum tributorum et conciliorum plebis discrimine; Soltau, W., Altröm. Volksversammlungen, 37-46; Humbert, G., Comitia, in Daremberg et Saglio, Dict. i. 1374 ff.; Concilium, ibid. 1432 f.; Liebenam, W., Comitia, in Pauly-Wissowa, Real-Encycl. iv. 679 ff.; Kornemann, E., Concilium, ibid. iv. 801 ff.; Vaglieri, D., Concilium, in Ruggiero, Diz. ep. ii. 566 ff.; see also indices s. Comitia, Concilium, in the works of Niebuhr, Schwegler, Lange, Mommsen, Marquardt, Willems, Herzog, etc. The authorities thus far named represent the usual theory as to the distinction between comitia and concilium based on the definition of Laelius Felix discussed in this chapter. A new view is presented by Botsford, G. W., On the Distinction between Comitia and Concilium, in Transactions of the American Philological Association, xxxv (1904). 21-32—a paper reproduced with additions in the present chapter. See also Lodge, G., Lexicon Plautinum, i. 277 f. (Comitia), 289 (Concilium); Forcellini, Totius Latinitatis Lexicon, ii. 297 f. (Comitia), 347 f. (Concilium); Gudeman, Concilium, in Thesaurus linguae latinae, iv. 44-8.