But the formula implied a system of legal principles, and these could not easily be furnished by the civil law (jus civile) of each contracting state. It was not Roman pride that prevented the foreigner from participating in her native law; it was the unwillingness of the foreigner to be made subject to a code characterised by excessive cumbrousness, by danger and by delay, and the counter-objection of the Roman to be the victim of similar disadvantages in the contracting state. No merchant, to whom time meant money, would adopt the cumbrous form of conveyance known as the mancipatio, when ownership could be acquired by the simple transfer (traditio) known of all nations; none would care to repeat a formula (to be learnt only of the Roman pontiff), the least error in the utterance of which was sufficient to extinguish his claim; and the symbolic acts performed before the praetor, though possibly dear to the Roman mind, could not have been attractive to the foreigner. Convenience dictated a compromise, and this was found in the gradual collection of a body of rights (jus) from the customs of “the world” (gentes) as known to the Romans. This jus gentium, or body of rights possessed by man as a citizen of the world, was a code of private international law, and it cannot be regarded as being even purely Italian. A nation that borrowed its alphabet from a Chalcidian city, that imitated the military organisation of the Hellenes, that traded in the sixth century with Sicily, Sardinia, Libya and Carthage, must have been deeply imbued with the customs of the Greek and Phoenician world. Nor was this code a growth of Rome’s supremacy, for her commercial preceded her political greatness. Its origin dates back to a time probably anterior to the Republic, certainly far earlier than the institution of the praetorship. We have already noticed how for more than a century the same civil judge administered both laws, that of the state and that of the gentes,[1401] and how the jus civile was insensibly modified by contact with its younger relative.
But closer relations than those of commerce might exist between Rome and states connected with her by neighbourhood or kindred. The interchange of the rights of private law, of ownership and of marriage, which the Greeks called ἰσοπολιτεία, was a natural out-growth of the Italian tendency to close political association. Such communion rendered each member of the contracting states in private law a civis of the other; the conubium carried with it the patria potestas and all the family rights that flowed from this power; the commercium allowed the citizen of the contracting state to own Roman land, to convey property by Roman forms, to make a contract by the ceremonial of the sponsio, to inherit from a Roman or to make a Roman his heir, while it gave the citizen of Rome corresponding rights in the alien city. There could be no question here of mixed tribunals or of private international law. The courts of each state were fully competent; if we may judge from the early relations of Rome with the Latin cities, the place in which the contract had been concluded, or, in other words, the forms of the contract, determined the competence of the court.[1402]
Still more definite bonds of union than these relations of private law (although often their primary condition) were certain political creations which made the ties between the states something more than international. It was a nucleus approaching a federal government which gave the first impulse to the extension of Roman power in Italy. Rome, as known to us in legend, is never quite a city-state. She is an offshoot of Alba Longa, the titular head of the Latin league. Tradition says that her conquest of her mother city led to her occupying a singular position with respect to the thirty cities of this league. She was one of the contracting parties, the cities were the other; she was the equal, not the member, of the group. The acceptance of this position by the confederate cities shows their eagerness for the protection of the frontier town; but the protectorate became burdensome, a war ensued, and Roman rule was shaken off only to be reimposed on firmer lines by the strong hand of the Etruscan dynasty represented by the Tarquins. Rome now became one at least of the religious centres of the league, and the Diana of the Aventine symbolised the lasting union of the Latin folk.[1403] The expulsion of the kings, while it stripped Rome of territory, shook for a time the allegiance of the league, and it was not until 493 B.C. that the old conditions were renewed; for the details that might in historical times be read in the treaty attributed to Sp. Cassius were doubtless but a replica of the old terms of the alliance. Eternal peace was enjoined, mutual support was to be given in war, and each contracting party was to share equally in the booty. The supreme command in war was to be held now by the Roman general, now by the commander of the confederate forces.[1404] But the closest bond was that of ἰσοπολιτεία,[1405] the mutual participation in commercium and doubtless also in conubium, which was accompanied by the proviso that the court of the state, in which the contract had been concluded and the case was therefore tried, should give speedy satisfaction to the claimant from each community.[1406] Reciprocity such as this was naturally accompanied by freedom in choice of domicile. The Roman settled in the Latin city and the Latin in the Roman retained the private rights of both communities. It is doubtful whether at this period the transference of residence was accompanied by a share in the voting rights of the state in which the immigrant sojourned.[1407]
To this association a third factor was soon added in the Hernican league.[1408] The extension of the confederation beyond its ethnic limits was a grand strategic move; for by the inclusion of the Hernici, Rome now presented a compact chain of fortresses against her enemies of the east and south, the Aequi and the Volsci. Their military importance explains why the newly admitted members were raised to the level of the older allies. They boasted the same reciprocity of private rights with Rome, they shared in a third part of the spoils of war, and they joined with Romans and Latins in the work of common colonisation.
This colonisation was at once a military and social measure, and the means by which the league extended its geographical and political limits. The custom of war, which permitted the Italian tribes to annex a third of all conquered land, had ever been used as a means of expansion by the powerful league. And this expansion was a very real one; for the Latin colonies (coloniae Latinae), as they were called, were full members of the society that gave them birth. Such towns as Suessa Pometia, Cora, and Velitrae had been military outposts in the territory of the Volsci; and now the Volscian, the Rutulian, and even the Etruscan were oppressed with the weight of new foundations by the three great powers. But the year 384 seems to mark a strange and unaccountable break in the history of this extension. Of all the Latin colonies founded after that date, but one is mentioned as a member of the confederacy—a circumstance which has led to the conclusion that Rome (whether with or without the consent of the other members) had cut off all future joint foundations from the religious and federal privileges of the league. Otherwise the consequences of this exclusion were not great; the new towns were military allies of the league, not of Rome, and their citizens still possessed those private rights which always remained of the essence of latinitas. Forty-seven cities—partly old Latin towns, partly Latin colonies earlier than 384—still participated in the Latin festival; that within this circle a distinction was drawn between thirty voting and seventeen not-voting members is an insecure conclusion based on the attempts of the annalists to reconstruct the traditional number of thirty Latin cities; there may still have been thirty votes, but these may well have been distributed in some way over the forty-seven cities of the league. That the closing of the Latin confederacy was due mainly to Roman pressure is perhaps shown by the series of dangerous revolts amongst its cities, which often sided with their ancient enemies the Volsci. The Hernicans were as eager to shake off the yoke; but Rome emerged from both crises with her power strengthened and her commonwealth enlarged. The latter result was due to a renewed employment of her old device of absorption. Tusculum in 381, and Satricum not long afterwards, had their commonwealths destroyed, and were forced, as a penal measure, to accept the full or partial Roman citizenship.[1409] At the close of the struggle in 358 the leagues were renewed and the relations of Rome with the two groups of states remodelled, probably on harder terms. In the Samnite war which followed, the Latin cities first clung to Rome, for they preferred a native to a Sabellian hegemony; but Rome’s rapid conclusion of a treaty of peace and alliance with the Samnites, which the league was asked to accept and not to ratify, was taken as the final proof of actual subjection concealed under the name of a hegemony. The Latins made their last demands; they gave up their position as a military confederacy, but they did not wish to be absorbed into the body politic of Rome. They asked for the golden mean—a system of federal government, but one that should still preserve the fundamental distinction between Rome and the confederate cities. One of the consuls was to be a Roman, the other a Latin, and half the Senate was to be chosen from Latium. But the civic feeling was too strong at Rome; she would not herself surrender the communal constitution which she had so often wrested from others; she rejected the alternative which would have paralysed her power as a conquering state and made of her but a federal capital. Her “No!” to the Latins was one of the turning-points in the history of Italy and of the world.
The battles of Veseris and Trifanum gave her the victory, but she was sorely puzzled as to the use to be made of it. The league was to be broken up, its members isolated, and this work of disintegration was carried through with thoroughness; not only were the federal assemblies (concilia) abolished, but no right of intermarriage or of commercial intercourse (jus conubii et commercii) was permitted between the cities.[1410] But how to deal with the individual communities was a far harder problem. The incorporation which had been the punishment of isolated revolt could not be applied to the disjecta membra of a whole league, for it would have changed the city-state into a nation. Hence the plan adopted was a compromise between the old policy of absorption and a new principle—that of alliance. Aricia, Pedum, and Lanuvium lost their independence and received the full Roman franchise; while Tibur, Praeneste, Lavinium were compelled to conclude separate treaties (foedera) with Rome, and formed the nucleus of the ever-growing class of civitates foederatae. Thirty years later (306 B.C.) a similar fate befell the remaining league of the Hernici. Their loyalty had not stood the test of the second Samnite war; but there were degrees of guilt amongst the cities. Anagnia, the chief centre of the revolt, and other incriminated towns, were given merely the private rights of citizenship; the full citizenship was indeed offered to the three loyal towns of Aletrium, Ferentinum, and Verulae, but, on their expressing a preference for their own local constitutions and codes, they were permitted to retain an autonomy guaranteed by separate treaties.[1411] The break up of the Hernican league was only an incident in a triumphant career of conquest that was never followed by annexation. The Samnite wars and the struggle with Pyrrhus had ended in the acknowledgment of Rome’s supremacy by every nation south of the Macra and the Rubicon. The three civilisations of Greece, Tuscany, and Italy furnished her indifferently with allies; the town and the tribal union were alike represented in her symmachy. Tibur and Praeneste in Latium, Aletrium and Ferentinum amongst the Hernici, Volaterrae and Clusium in Etruria, Iguvium in Umbria, the Picentes, Marsi, and Peligni amongst the Sabellians, and Greek cities like Neapolis in Campania or Rhegium amongst the Bruttii, are types of the states and peoples that she numbered amongst her socii.
The effect of this unification, and of the tendencies which had preceded it, was to divide the inhabitants of Italy into two broad classes—those of citizens (cives) and those of allies (socii) of Rome. The first class (far the smaller numerically) represented the earlier effort at incorporation; the second was the consequence of the later policy which founded a military league. Minuter distinctions of rights, which necessitate cross-divisions in the classification of the states, sometimes obscure this fundamental analysis; but it was never lost sight of and was the guiding light to the Roman lawyer, as it is to us, in his path through the labyrinth of the complex organisation of Italy.
The cives of Rome bear this name either in a full or a partial sense; they may be citizens with voting rights or citizens in private law alone (cives sine suffragio). If we fix our attention on the first of these classes, we find that historically there were two modes in which the civitas was gained by a commune outside the city. It might be due to the incorporation of an already existing state, or it might be the consequence of the planting of a Roman colony. The merging of some of the Latin communities in Rome[1412] has already furnished instances of the former mode of conferment; the Roman colonies which illustrate the second (coloniae civium Romanorum) were outlying fragments of the Populus, planted as a defensive garrison on the third of the conquered land, which was the legitimate spoil of the invader. A social was from the first combined with the military object; but the enforced exodus of portions of the burgess body on some occasions[1413] proves that, in this form of colonisation, the interest of the state came before that of the individual. It was, in fact, a military levy ordained by law, although voluntary profession usually took the place of the compulsory summons of the regular dilectus. In military array, with standards flying,[1414] the squadron marched to the appointed place under the leadership of the commissioners appointed by the people. When a new town was to be founded, or an old one reconstituted, it was done with the imposing ceremonies that marked the birth and enlargement of Rome. After the will of the gods had been tested and happy omens gained, the commissioners, with veiled heads and loins girt up, guided a plough, to which were yoked an ox and a cow. They thus drew the pomerium of the state, only staying the furrow where the gates of the city were to be.[1415] The greater number of these settlements of Roman citizens were for the protection of the Italian coasts, and the members of the maritime colonies (coloniae maritimae) were allowed exemption from active military service.[1416] Few in numbers (often but a handful of 300 men), and settled in an already existing political society, the colonists formed a privileged patriciate amongst its older members. The town-council, and such subordinate magistrates as Rome allowed them to possess, were probably chosen from the new settlers alone; but, as the autonomy which they enjoyed was not great, as they possessed no high judicial magistrates of their own, and as their voting power at Rome was more a potential than an actual right, they differed little from the native inhabitants, who as cives sine suffragio came equally under the jurisdiction of the Roman courts and their representatives.
Whether the commune of Roman citizens had had a natural or artificial growth, it was never in early times a true state (civitas). Roman law knew of ἰσοπολιτεία, but not of the closer bond of συμπολιτεία; and the principle that no Roman citizen could be a full member of another state, although in the later Republic it had given place to the theory of the municipal independence of the civis was always maintained in international relations with states of the outer world.[1417] As the negation of state life implied the negation of communal independence, we are not surprised to find that none of these communities of Roman citizens possessed a true civic organisation of its own. We cannot define the rights of their town-councils, we cannot assert the absolute non-existence of popular gatherings for certain purposes; but the absence of the imperium and of a true judicial magistracy is clearly discerned. These communes fell under the immediate civil jurisdiction, originally of the consuls, later of the praetor urbanus. Originally it may have been necessary for every case not settled by voluntary arbitration to be brought to Rome, but the distance of some of these towns from the capital would have soon rendered this principle of jurisdiction impossible. The modern solution, that the judge should go on circuit, could not be thought of in a state where the bench consisted of a single man, and where this individual was prohibited by law from leaving the city for more than ten days during his year of office.[1418] The only alternative was furnished by the favourite Roman device of delegation. The praetor nominated praefects for jurisdiction (praefecti juri dicundo), and these were sent, sometimes as standing magistrates, sometimes perhaps as mere circuit judges, through the Roman towns, which were thence known as praefecturae.[1419] Delegation implies either a division of competence or, in the case of the lower court possessing full jurisdiction, an appeal to the delegating authority. There is no trace of the latter practice at Rome, and a systematic division of authority, although motives of convenience may sometimes have led the praetor to permit it, is inconsistent with the Roman idea of jurisdiction flowing direct from the imperium. Possibly the praetor permitted the praefect to regulate almost every kind of contentious jurisdiction, subject to his own right of summoning any case he pleased from the delegate to Rome. By a legal fiction the courts of the praefecturae were held to be within the praetor’s sphere of competence, i.e. within a single milestone of the city; they were, to use the technical Roman expression, judicia legitima. No trace whatever has been preserved of the criminal procedure applied to such communities. The fact that the praefect was the delegate of a civil magistrate would not prove that he was incapable of exercising criminal jurisdiction, for jurisdictio of every kind is latent in the praetor’s imperium. All higher jurisdiction was reserved for the people; but there was only one populus Romanus, that of the city of Rome. Hence when the citizen of Ostia or Tusculum was accused of an offence, the penalty for which demanded a popular sanction, we may assume that he could either make the appeal, through a fiction like that underlying the civil jurisdiction, in spite of his local separation from Rome, or that he stepped, or was brought within, the first milestone of the city, the limit inside which the provocatio could legally be made.
The second type of cives are those without the right of suffrage (sine suffragio). There can be little question that the idea of this status was derived from Rome’s relations with the cities of the Latin league; in her process of absorption, however, she conferred it on towns to which she did not grant the other typically Latin rights; in this way she made of it an independent status. The Etruscan town of Caere is said to have won this right in 353 as a gift for good service to Rome. After the dissolution of the Latin league in 338 B.C. a group of Campanian townships, Capua, Cumae, Atella, and Calatia, were with (the then Latin) Fundi and Formiae brought into this relation with the now dominant city of Latium;[1420] others nearer home, such as Arpinum of the Volsci, were similarly rewarded or absorbed (303 B.C.),[1421] while the status was imposed as a means of degrading and reducing to impotence rebellious townships such as Anagnia, the leading city of the Hernici.[1422] The motive of the conferment, although it might make a difference to the rights of the towns, produced none in the relations of their respective cives to Rome.