Roman Public Life

by A. H. J. Greenidge

There may have been an appeal from the delegates to the king, but tradition does not credit the king with any power of pardon. Whether the power of pardon resided anywhere depends on our interpretation of the trial of Horatius,[254] which was believed to furnish the archetype of the provocatio. From this story appears the belief, which is often stated by other authorities,[255] that the appeal to the people existed in the regal period, but one modified by the view that the citizens had no standing right of appeal against the king such as that secured against the Republican magistrate by the lex Valeria. The king, Tullus Hostilius, allows the appeal.[256] The early dictatorship was similarly exempt from the necessity of permitting it, and on one occasion the precedent of Horatius was appealed to for the purpose of showing that, as the king had allowed, so the dictator should allow, the appeal.[257] But the dictatorship is a revival of the military side of the monarchy with the military jurisdiction which the king exercises over Horatius. It is quite possible that before the close of the monarchy custom had established different spheres of criminal jurisdiction for the people and the king respectively;[258] in some the people might have had a right to be judges in the last resort, and it is the idea of calling away a case to another court that is suggested by the word provocatio, not the modern idea of pardon.[259] In other spheres the king could judge alone; the provocatio here is an act of grace. If, however, we consider the extent of the military and religious jurisdiction of the king, the competence of the people must have been small;[260] and the provocatio itself may be a growth of the later monarchical period, the result of custom, and of a custom based chiefly on the permit of the king.

Civil jurisdiction is said to have been based on the king’s judgment.[261] How far this royal jurisdiction was personal we cannot say, but under all circumstances the king was the chief source of the jus privatum, in so far as he and his pontiffs alone knew the formularies of action,[262] the most precise verbal accuracy in which was necessary for the successful conduct of a suit. It is probable that in many cases the king gave merely the formulary of action, that is, the ruling in law, and then sent the case before a private judge or arbitrator (judex privatus, arbiter), thus illustrating (although not, perhaps, on the scale recognised during the Republic) the fundamental division of judicial procedure into jus and judicium. This division of jurisdiction is probably primitive and not, as has sometimes been thought, a modification introduced by the later monarchy.[263] Even in Republican times the judex was chosen by consent of the parties.[264] He was an arbitrator between the litigants agreed to by a mutual compact,[265] and an outcome of the notion of self-help so prominent in early Greek and Roman law. But one who knows the forms of action has to stand by and see that the words of these forms are correctly repeated. This depositary of jus is the king or one of his pontiffs. Hence eventually the public official comes to assist at the appointment of the judge. From this it is but a slight step to give the formula of action which settles the law of the case, and to leave it to the judex to decide the question of fact.

§ 6. The Servian Constitution

At some period before the close of the monarchy the absurdity of the existing constitutional arrangements began to be felt. In matters of private law there was not a single important difference between a free Plebeian and a Patrician; and large numbers of that portion of the Plebs which had sprung from clientship were virtually in a condition of independence. Although their tenure of the soil might be precarious, their right of acting for themselves in the law courts questionable, it must have been practically impossible to avoid the appearance of full ownership where the lord had not asserted his right for generations, or to prohibit the personal enforcement of claims where the original patronage had been long forgotten or had lapsed through the extinction of the patrician family on which the original client had been dependent. It was, in fact, impossible to say where the class of free Plebeians ended and that of protected Plebeians began. It was better, for the purposes contemplated by the impending reform which bears the name of Servius Tullius, that they should be regarded as on an equality, and that both classes should make up a single order. The essence of this reform is, in fact, the recognition of equality of rights in landed property. Ownership of Roman land ex jure quiritium was guaranteed to the whole plebeian order—probably even to those dependants and emancipated slaves whose clientship, and therefore whose precarious tenure of the soil, was patent;[266] and with respect to the rights of commercium the order was put on a level with the Patriciate.

So far the object of the reform seems to be to confer privileges on certain classes of the Plebeians. Its real meaning was wholly different. The intention of the reformer—one which explains the readiness with which the change seems to have been accepted by the Patricians[267]—was to impose burdens on the whole plebeian community. A recognition of the rights of property was a necessary preliminary to the imposition of taxation and of the full quota of military service. The patres, who welcomed this distribution of burdens, did not foresee that from these obligations would flow a fresh series of rights which would impair their monopoly of political power.

The Plebeians were being recognised for the first time as, in a sense, members of the state. The first problem was the choice of a medium through which they should be incorporated in it; for simple membership of a state which was not based on membership of some lower unit was inconceivable to the Graeco-Roman world. Many of the Plebeians had no clans; they could not, therefore, be made members of the three primitive tribes,[268] and when the change was first mooted, it was, probably for the same reason, thought impossible to make them members of the curiae.[269] New tribes must be invented which should include the whole community. The chief burden of taxation, now imposed equally on all classes, was to lie on land. What more natural than that the tribes should be territorial divisions, so defined as to include all the territory held in ownership by the Roman people? It is established that the tribes, which are specially described as local,[270] contained only that land which was subject to quiritarian ownership,[271] and from this fact the deduction has been drawn that all land subject to quiritarian ownership was included in the tribes. As the Servian tribes were believed only to have comprised the city itself, as enclosed by the Servian walls,[272] this view leads to the startling conclusion that no land was held in private ownership outside the city, as its limits were fixed by Servius—that the land outside, so far as it was not ager publicus, was held by some larger corporation such as the gens.[273] But such a conclusion is most improbable; it was the evolution of private ownership which had created the rich Plebeian, who had often no clan and could not hold in common with others, and such a holder was the least likely man in the world to have land in or near the city, even as its limits were fixed by Servius.

Consequently if, as seems to have been the case, the tribes did include all landowners, they must have extended far beyond the bounds of the city. Our authorities knew them at a time when their names indeed survived, but when they had become strictly divisions of the city, by the complete separation of the country from the urban tribes. If we believe in the urban character of the four original tribus, we must accept the clearly expressed but generally discredited belief preserved by Dionysius that besides these four tribes, which comprehended only the city, Servius established twenty-six others which took in the country districts.[274]

The view that the four tribes[275] comprised the country districts is preferable, and is not incompatible with the fact that they certainly designated parts of the city, nor even with the possibility of their having been engrafted in some way on the older divisions of the Ramnes, Tities, and Luceres.[276] Local creations of an artificial character, independent of juxtaposition, are not unknown in early legislations; they are found in the almost contemporary work of Cleisthenes of Athens. But even this hypothesis is unnecessary; each tribe may have stretched continuously with fairly definite boundaries beyond the city walls. The country portions of these tribes were for a moment wholly lost by the disastrous wars which followed the expulsion of the kings, and when the ager Romanus was again regained, a new organisation was adopted The territory outside the walls was parcelled out into country tribes,[277] and these grew in number as Rome’s conquests spread. The four Servian tribe-names were kept as designations only of regions within the city.

Although the tribes were divisions of the land, and individuals were registered in that tribe in which their land-allotment lay,[278] there is no good reason for accepting the current belief that the landless citizen was not enrolled in a tribe.[279] It has generally been assumed that the only object of the Servian tribes was to furnish a system of registration for taxation and the military levy. If this was the case, and we believe that these burdens were imposed only on landed property, it follows as a consequence that only holders of land were tribules. But there is no evidence that their scope was so limited. They appear to be divisions of the populus Romanus, and the disinherited or ruined Patrician who has lost his land is still a member of that populus. The tribe to which a landless man belonged would depend upon his domicile; it is a man’s local position in a tribe, not the land he holds in it, which is given as a criterion of his membership and of the political rights which it subsequently conferred.[280]

The system of registration, which was the central idea of the Servian reforms, was essentially military. It recognised only those persons who were qualified for service by wealth, regarded them as forming an army (exercitus), and divided this army into its two branches of infantry and cavalry. This military organisation recognised one primary and two secondary principles as the basis of classification; the first was wealth, the second age, the third took the form of a subdivision for strategic purposes, the military unit employed being the “hundred” (centuria).