Roman Public Life

by A. H. J. Greenidge

The tribute was, from the time of the Servian census, imposed on the property which formed the basis of the classes—originally, therefore, on res mancipi;[534] later it was levied on all property and was paid by all registered citizens who were sui juris, the aes hordearium and equestre for the support of the knights being still paid by children and women who were also sui juris.[535] The lowest property taxed was, as we have seen, one of 1500 asses.[536] The taxation was not, however, like military service, graduated according to the classes, but was collected uniformly, usually at a rate of one as in the 1000 (⅒ per cent). The tribute was an extraordinary tax and was imposed, like military service, only when the necessities of the state demanded it, practically when there was no reserve fund in the aerarium. The state regarded it as a loan rather than as its due, and sometimes considered itself bound, when its finances were more flourishing, to return the money to the contributors.[537] The vast revenues accruing to the state as a result of the third Macedonian war in 167 B.C. caused the cessation of the tribute,[538] and no further direct tax was collected at Rome until at the end of the third century A.D. it was reimposed by Diocletian and Maximian. Tribute was, indeed, inconsistent with Rome’s imperial position. It had been meant to defray the cost of the legions, but, with the creation of the empire, each province defrayed the expenses of its own military occupation.

Service in the legions (militia) was in theory a burden; exemptions from it were occasionally granted as though it were a troublesome duty,[539] and the citizen who did not present himself for the conscription was sold as a slave[540] across the Tiber.[541] But the treatment of the levy and the feeling of the citizens raised this burden (munus) into a privilege (honor); it was for this reason that free birth was always required as a qualification for a legionary, and that the ranks were never tainted by the admission of men of servile blood. The Servian census was still the scale by which military service was measured, both in the legio and in the select corps of citizen cavalry (equites). The legal duration of service throughout the greater part of the Republic was sixteen, or at the most twenty yearly campaigns (stipendia) for the foot soldier, and ten campaigns for the knight. The performance of the munera of tribute and military service required a third duty, which was the condition of both. This was the presence of the citizen who was sui juris at the census for the purpose of registration. All who neglected this duty (the incensi) could be sold as slaves across the Tiber.[542]

The concepts of the individual as the subject of rights, of their tenure and of their infringement, gave rise to a gradually developed theory of the jura with which the citizen was invested, and the mode in which they might be lost, which plays a large part in the speculations of the jurists. It attached itself to the primitive idea of a capitis deminutio, the lessening of status caused by the loss of family rights.[543] Gradually jurisprudence evolved the idea of a caput or personality possessed by every individual independent of citizenship, an idea running parallel with the conception of a law of the civilised world (jus gentium) independent of the jus civile. From this point of view loss of citizenship could be spoken of as a capitis deminutio. There was besides an infringement of personality greater even than the loss of citizenship of which the natural man might be the victim. This was the loss of freedom. These two great derogations of caput were spoken of as magna capitis deminutio;[544] but finally a more precise classification gave the following three grades of loss of status:[545]—

(i.) Capitis deminutio maxima was the loss of civitas and libertas, consequent on a man’s becoming a prisoner of the enemy. With the loss of freedom, political and therefore private rights[546] ceased ipso jure to exist. The obligations of international law might also produce this condition; the Roman general who concluded a treaty with the enemy, which the people would not accept, was handed over as a scapegoat for the broken faith of the community[547] (deditus), and similar treatment was meted out to one who had violated the sanctity of envoys,[548] or to a general who had made war with a state in alliance with Rome.[549] This loss of status was also produced by the civil law, in so far as it enjoined slavery as a penal measure—e.g. in the case of the incensi or of those who shirked military service[550]—or permitted the sale of the debtor or of the child into a foreign land.[551]

(ii.) Capitis deminutio media (or minor[552]) was the loss of civitas alone.

This might be voluntarily incurred by the assumption of the citizenship of another town, for the principle of the older Roman law was that a man might not be a member of two independent communities.[553] The exile from Rome which followed condemnation for a criminal offence was of this type of rejection of citizenship, for the exile was always assumed to be a voluntary act. Enforced abstention from the Roman civitas, which necessitated a continuance in exile, was produced by the decree of outlawry (aquae et ignis interdictio)[554] often passed by the people against an individual who was in voluntary banishment for a crime.

(iii.) Capitis deminutio minima—originally a loss of family rights—was improperly construed by the later jurists as a change of family status.[555] Its applications have been already considered.[556]

There were means of recovering the status lost in either of these three modes. The loss of familia in its original sense[557] might be recovered by emancipation; the loss of civitas, if enforced by the state, by a special act repealing this disability (the restitutio in integrum of the criminal law). Libertas could be regained by the exercise of a right known as the jus postliminii. The return, unintentional or premeditated, of the captive within the limits of his own country destroyed the state of bondage, and restored the ingenuitas and the rights of the former prisoner. Although described as a legal fiction[558] it was a direct consequence of the simple principle that a Roman could not be enslaved on Roman soil.

The Roman family had been subjected to many modifications since we last considered it.[559] The patria potestas, indeed, existed in all its old rigour, and the power of life and death over the children still found occasional expression; but the unity of the family had been largely dissolved by the laxity of the marriage tie. A modification of the usus marriage had come into vogue, which recognised the consent of the parties, without the prescriptive tenure by which the potestas was asserted, as the only bond—one, therefore, dissoluble at any moment by rejection on the part of the husband or by mutual consent. The wife remained a member of her father’s familia, and if she was sui juris, retained her own property; for the tutelage of women was out of accordance with the spirit of the age, and, though not abolished, was evaded by cunningly contrived legal fictions.[560] Never, perhaps, have women been freer from social trammels and legal bonds than they were in the last century and a half of the Republic, and one of the features of their independence was an indirect, but very powerful, influence on politics.

But the greatest change in Roman society was due to the growth of a slave population, which, in the city and that part of Italy which formed the Roman domain, reduced the free citizens to a minority.