By the end of the republic the extent of Rome's dominions was every nearly as great as it ever became, and included already the greater part of the known world. This great empire was not, like that of Alexander, the work of a single conqueror, but the result of centuries of warfare and expansion, and its government was therefore not a coherent scheme imposed by a single mind, but an intricate structure embodying the expedients of many successive generations of rulers. Nor can it be said that the political institutions of Rome, though no doubt they helped her to acquire her empire, proved a success as a means of governing it. The city-state constitution broke under the strain imposed on it and had to be replaced by a military monarchy, for the constitution of Rome at the end of the republic, it must be remembered, was still that of a city-state. If the territories which we call the "Roman Empire" can be said to have a constitution at all, it must be described as a kind of federation of city-states of which the sole bond is their common subjection, though in varying degrees, to the supreme city, whose governing organs have to serve the purpose of governing also the whole federation.
In tracing the development of this federation it is best to distinguish three stages, those of the Latin league, the conquest of Italy, and the acquisition of the provinces beyond the seas and beyond the Alps. Not that these stages represent distinct periods; Rome had already conquered several Italian states before she finally suppressed the last revolt of the Latins, and she had acquired provinces overseas before she has finished with Italy, but it was only through her leadership in Latium that she was able to achieve her supremacy over Italy, and at the end of the republic, as well as during the early empire, Italy represented a privileged part of the Roman dominions contrasted with the subject territories beyond her borders.
- The latin league
The early history of federation among the Latin cities is shrouded in mystery. According to tradition there existed from the earliest times a league, both religious and political, with its centre at Alba Longa, and the headship of this league was wrested from Alba by the Romans under the third king, Tullus Hostilius. It seems however that the Alban league was but one of a number of shifting combinations and that, though Rome under the later monarchy exercised a clear hegemony in Latium, this was not due to her succession to the position of Alba. After the fall of the monarchy there followed a period of weakness in which the Latin cities combined against Rome. What were the headquarters of this combination cannot be determined, but the tradition of a treaty made after fighting with a Latin league in the early years of the republic is probably to be accepted, and in this treaty Rome appears, not as a member of the league, but as an equal. The league appears to have had some form of government for federal purposes, separate from the government of the individual cities, but in this Rome had no part, and the treaty provided for an equal division of booty between Rome on the one side and the league as a whole of the other. The command of the joint army was, it is said, to be held alternately by the Roman general and the commander of the federal forces.
One important joint activity of Rome and the league was the foundation of colonies. A colony in the Roman sense is primarily a military settlement planted on conquered land with the object of holding down the surrounding territory, though of course it served also the purpose of providing for surplus population, for the colonists were always given parcels of land in the new cities. The Roman or citizen of any Latin state who became a member of a Latin colony lost his original citizenship, for the colony was a separate state, and the rule was that no one could be a citizen of two states at the same time. At first the colonies became members of the league on the same footing as the original cities, but this appears to have changed even before the dissolution of the league, the newer colonies being allies, not members. Their citizens, however, like those of the older colonies, shared those rights in private law which were characteristic of "Latinity" and are of greater importance than the constitution of the league for the understanding of subsequent legal developments.
Chief of the private rights was commercium, which the Latin cities had originally not only with Rome but with each other. The general rule of antiquity was that the law of a community was for the members of that community only, and that the stranger was without rights. If there was no treaty to the contrary with the state the foreigner could be seized as a slave and his property taken by the first comer as goods without an owner. Where there was a treaty protection of the citizens of the contracting states could be arranged, and the development of the ius gentium secured protection even for those without a treaty. But the bond of commercium meant more than this. It meant that the Latin was admitted to the Roman methods of acquiring property and of contracting obligations, including not only mancipation, but probably also nexum and the literal contract. Latins could also, unlike other aliens, benefit under a Roman will, but this was probably not a result of their commercium. Similarly, no doubt, though we hear little about it from the other side, the Romans enjoyed the same privileges in the Latin cities.
The right to use mancipation for the adquisition of property did not mean that the Latin, when he acquired property, owned it ex iure Quiritium (by Roman right), or that he could use the legis actio (the old Roman method of procedure) to assert his ownership in a Roman court, for no one who is not one of the Quirites can own ex iure Quiritium. He was consequently debarred also from acquiring property by in iure cessio, which involved the use of the legis actio in a collusive manner. The difficulty that mancipation, as described by Gaius, also involves the assertion of ownership ex iure Quiritium is best met by assuming that there were two forms, one, that described by Gaius, for use between citizens, another, in which the words ex iure Quiritium did not occur, which was used when one of the parties was not a Roman.
Where conubium existed in addiction to commercium this meant that if a Latin married a Roman woman the union was recognised by Roman law, with the result that the children followed the status of the father, whereas in unrecognised unions they followed the mother, and on the other hand if a Roman married a Latin woman with conubium the children were Roman citizens and in the power (patria potestas) of their father.
In addiction to commercium and perhaps conubium there were also some minor political rights; the Latins resident in Rome were permitted to vote in a tribe chosen by lot on each occasion, and there was also probably the right, which became very important later, by which Latins taking up their permanent residence in Rome and abjuring the citizenship of their homes could become Roman citizens. The Romans no doubt had corresponding rights in the Latin cities.
After the revolt of the Latins and Rome's victory in 338 B.C. there was a radical change in the situation. The league was dissolved and the federal government was abolished. Some of the cities were deprived altogether of their constitutions and given either full Roman citizenship or civitas sine suffragio (i.e. citizenship without the right to vote or to be elected to a magistracy), which meant that they had full rights in private law and bore all the burdens, especially military service and tributum, which fell on Romans, but could take no part in the government and were themselves subject to the Roman magistrates. In more favoured cases the local constitution and local citizenship were left intact, but the city was forced to conclude a separate treaty with Rome by which she surrendered her power both of making war against, and of concluding treaties with other states, whether Latin or not, and agreed to furnish contingents to serve with the Roman armies.
All commercium and conubium between Latin states was forbidden, but the Latins retained their right of commercium (and perhaps in some cases conubium) with Rome herself, together with the restricted voting rights and probably the right of exchanging their own for the Roman citizenship by taking up permanent residence at Rome.
The subsequent history of Latin rights is that of the Latin colonies. Settlements with rights similar to those of Latin cities continued to be made, and were among the chief methods adopted for securing Rome's hold on Italy, but it was, of course, now Rome alone which decided when and where they were to be sent, and who chose the colonists. These might be Romans or be taken from any of the allied states, but every colonist who was enrolled, the Roman included, lost his original citizenship on receiving that of the new city.
For the colonies founded after 268 B.C. the privileges of Latinity were somewhat curtailed, though it is not clear in precisely what respect. There were also restrictions on the right of the Latins (in indeed it had ever been unrestricted) to become Roman citizens by transferring their residence to Rome. A law of unknown date is said to have enacted that this should only be allowed provided the Latin left a son in his own city, and we find for the first time in 123 B.C. a reference to what is subsequently called minus Latium. Mommsen takes this to be a curtailment of the older general right (though there is no suggestion that migration was necessary) and to have applied only to colonies founded after 268 B.C.
In the course of republican history "Latinity" thus became a recognised status, privileged in comparison with that of the other allies by reason of the private rights and the chances of obtaining Roman citizenship, and this status could be granted not only to colonies in the original sense of the word but also to cities which were neither colonies nor had any connection with the Latin race.
It was thus granted in 89 B.C. to the inhabitants of Italy north of the Po (Gallia Transpadana) who were not yet considered ripe for the citizenship which was then extended to the rest of Italy, and it continued to be granted in the remainder of the republican period, especially by Caesar, and in the early empire to communities in the provinces as a kind of half-way house to citizenship. Latin rights were even, under the empire, taken as a model for the status granted to certain freedmen who did not become citizens on manumission, the "Junian" Latins; but this "Latinity", which did not imply membership of any community with Latin rights, is a mere anomaly from the point of view of republican law.
- The remainder of Italy
Towards the rest of Italy Rome pursues a policy similar to that adopted towards the Latins after the supremacy she dissolves and incorporates, others she binds to herself by treaties which, though leaving them technically autonomous, embody such restrictions on that autonomy that they become in fact dependent. Confederations are everywhere broken up and the allies of Rome are forbidden to conclude treaties with other powers.
If we look at the position in 266 B.C., when her victory over Pyrrhus in 275 and subsequent victories over her Italian enemies have made Rome supreme in Italy south of the Apennines, we find that the inhabitants fall already into four classes:
+ Roman citizens with full rights
These include not only the inhabitants of Rome itself, but also those of the communities incorporated with the full citizenship and the members of the Roman colonies, for Rome used settlements of citizens with full rights as well as those with Latin rights for securing her hold on conquered territory, the former being in the earlier period smaller and more definitely military in character. As the colonists in these cases remained Romans, the foundation was not, like that of a Latin colony, the creation of a new State. The land given to them became a res mancipi, fully theirs ex iure Quiritium, and was incorporated in one of the Roman tribes, just as the owners themselves remained on the Census lists, lived under Roman Law and were subject to the jurisdiction of the praetor. A minor degree of self-government perhaps originally of a military nature, was, however, given to the colony, and the colonists were commonly dispensed from military service with the Roman armies because they were in fact intended to act as a standing garrison where they lived.
+ Cives sine suffragio
Citizenship without the right of voting, such as had been forced on some of the Latin cities, continued to be given to conquered communities which were too dangerous to be left independent even under a treaty of alliance, and the penal nature of this grant was usually made clearer by the confiscation of a considerable proportion of the conquered land. Now if Roman citizenship was, as the Romans certainly sometimes said themselves, incompatible with any other citizenship, such incorporation, no less than incorporation with full rights, would have implied the utter extinction of the conquered city as a separate state, and this view was in fact taken by Mommsen. It is, however, now very generally held that Mommsen applied the rule of incompatibility of citizenship more rigidly than the Romans themselves, and it seems that in fact considerable powers of self-government were exercised by the local authorities, not merely by delegation from Rome, but as a relic of their former sovereignity. Thus, while at Anagnia we are told that no local magistrate with secular functions was left at all, at Capua (the second largest city of Italy), in spite of the grant of citizenship, powers almost equal to those of independent federated states were left to the local magistrates, such, for instance, as the right of assessment for taxation and the raising of troops for the levy. According to Roman ideas, however, Roman citizenship implied the use of the Roman law (though some local rules managed to survive) and subjection to the jurisdiction of the praetor urbanus, but with the increase in the number of citizens it was obviously impossible to send every case to Rome for trial; nor could the praetor go on circuit, for he might not be absent from Rome for more than ten days during his year of office. The device of delegation was therefore adopted and praefecti iure dicundo were appointed by the praetor to take the civil cases in outlying communities. It probable that these delegates also exercised general functions of government in those cities which were allowed no local magistrates. In cities with local self-government they exercised some supervision over the local administration, but their main task was jurisdiction, and for this therefore they were sent to cities whose inhabitants had the full citizenship as well as to these sine suffragio, at any rate where the city was so far from Rome that to send every case before the praetor would have been an intolerable hardship.
Originally all prefects were nominated by the praetor whose delegates they were, but, as we have already seen, four were in later times elected in the comitia tributa and counted as minor magistrates of the Roman people.
The recognition of local self-government among communities of citizens implies a departure from the general principle, which applied in Italy as well as in Greece, that state and city are convertible terms, for it means that a man may be a citizen of Rome and also have rights as a member of a subordinate community. This double citizenship is at the bottom of the Roman conception of municipium in the later sense of the term, i.e. a township of citizens with minor rights of self-government. In the period of which we are speaking the word had not yet this technical meaning, but the fact was there and was to be of the greatest importance in the history of Roman, and indeed European, governmental institutions.
+ Latins
This term now means almost exclusively the inhabitants of the Latin colonies, for the original Latin cities had nearly all obtained Roman citizenship. The Latins were, strictly, like other "allies", members of autonomous states bound to Rome by treaty; they were free from tributum, sent separate contingents to the army which served under their own officers, and owned their own land according to their own law, but their position was more favourable than that of the other allies on account of their privileged position in private law and their tie with Rome closer in other ways also. The newer colonies had been planted by Rome alone; their legal and social system was modelled on the Roman, and they looked upon Rome as their mother city and their support against the frequently hostile populations of alien race among whom they were settled.
+ Socii (allies)
The position of the "allied" states, though less favourable than that of the Latins, was in this period better than that of cives sine suffragio. The provisions of the treaty which bound them to Rome no doubt varied in the different cases, but in general the allied state gave up her right of concluding treaties or making war separately from Rome and agreed to send troops, the number of which was probably fixed by the treaty, to serve with the Roman forces. The coinage of silver (first undertaken at Rome in 269 B.C.) was in effect reserved to Rome, but for the rest the states were independent. They retained their own constitutions (though these might be remodelled to suit Rome), their own systems of law, their own finance and administration (except that Romans were dispensed from paying import and export duties), and their ownership of their territory was recognised by Rome. They need not admit Roman garrisons and were free from Roman taxation except in so far as the provision and payment of troops necessarily involved expense.
A century after the defeat of Pyrrhus, when the third period into which Mommsen divides his History comes to an end with the battle of Pydna (168 B.C.), the condition of the Italians has changed considerably for the worse. This is due, in the main, to the great struggle with Carthage in which Rome had been forced to employ ruthlessly all the resources at her disposal and particularly to the measures of punishment meted out to those of her allies who had made common cause with the enemy. Most severe of all was the treatment of Capua and of the rest of Campania with the exception of a few faithful cities. The Capuan constitution was entirely destroyed and nearly all her territory confiscated and made ager publicus. Many of the Campanians themselves and others in the south of Italy, the Bruttii for instance, did not even obtain the citizenship sine suffragio, but remained dediticii. This meant that the condition of surrender (deditio) into which they had fallen when subdued by the Romans, instead of being exchanged for incorporation or alliance, was perpetuated. They were not rightless in private law, for they remained free, and all free persons were regarded as having rights under the ius gentium, but they had no status in public law at all, and were simply subjects with whom the Roman government could do what it liked.
But even apart from these cases of exceptionally harsh treatment the Roman yoke began to bear more heavily on the Italian "allies" and even on the Latins. Many cities had to submit to an unfavourable revision of the treaties which bound them to Rome; military burdens were imposed on Latins and allies more heavily than on Romans, and they were not given a fair share of the spoils of war. Roman legislation and Roman administrative measures were sometimes extended without legal justification to both classes, and Roman magistrates, knowing that there could be no effective resistance, did not scruple to behave like foreign conquerors in "federated" cities.
One symptom of the changed attitude of the Romans was that they became much less generous with the grant of their citizenship. They were now definitely the masters in Italy, not merely the leading state, and they did not want to diminish the value of their privileges by sharing them with too many others. At the same time the citizenship which had, in earlier days, often been imposed as a measure of punishment on comunities whose constitutions were destroyed, came to be the chief object of ambition to the Italian peoples who could now no longer hope for any real independence.
The claim of the allies to the citizenship was favourably viewed by the leaders of the democratic party at the beginning of the revolutionary period (in particular C. Gracchus) and from 125 B.C. onwards proposals were brought forward for granting it. All, however, failed because of the united opposition of the senatorial party and the city mob who were jealous of their privileges and in this matter refused to follow their usual leaders.
The climax was reached in 95 B.C. when the reactionary consuls of the year carried a proposal (lex Licinia et Mucia) which, so far from granting the citizenship to the Italians, curtailed the existing privileges of the Latins, apparently by taking away their right (in so far as it existed) of acquiring the citizenship by settling at Rome, and resulted in wholesale expulsions from the city. This measure and the failure of a proposal of Drusus in 91 to extend the citizenship to the allies resulted in the Social war (91-88 B.C.). Though the Romans succeeded, after more than two years hard fighting, in suppressing this revolt, in which the greater part of Italy took up arms against them, it was only at the cost of relinquishing the principle for which the struggle had been begun.
Two laws were proposed and passed before the war was over, one a lex Iulia by the consul L. Caesar in 90 B.C. which gave the citizenship to all allies who had not yet revolted, the other, a lex Plautia Papiria in 89 B.C. by two tribunes allowing two months to any person domiciled in Italy during which he could obtain the citizenship by giving in his name to a Roman magistrate. These measures clearly did not include Italians still in revolt, but in fact citizenship was extended shortly after their submission to all cities in Italy proper, and this extension remained the solid achievement of the Social war. As a result double citizenship, Roman and local, became the rule in Italy. The Latin or Italian city which had previously been, at least in theory, a sovereign state in alliance with Rome, became what municipia in the strict sense had long been, merely a community for the purpose of local government, and the difference between coloniae, municipia and praefecturae became one of name only. The acquisition of the Roman citizenship by the Italians also brought with it, in principle, the application of Roman law, and the new citizens, like the old, were subject to the jurisdiction of the praetor or his delegates. But the powers of local self-government remaining to the cities, or newly bestowed on them, are considerable. Local assemblies elect magistrates, local senates deal independently with their own finances; criminal jurisdiction is largely local, and there comes into existence a civil jurisdiction under Roman law exercised by local magistrates in subordination to the praetor at Rome.
----------
Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 56 - 66.
