Theodor Mommsen - The History of Rome. Book II

We cannot fully determine the extent to which the curtailment of the rights of the more recent Latin towns was carried, as compared with the earlier. If intermarriage, as is not improbable but is in fact anything but definitely established (i. 132; Diodor. p. 590, 62, fr. Vat. p. 130, Dind.), formed a constituent element of the original federal equality of rights, it was, at any rate, no longer conceded to the Latin colonies of more recent origin.

35. II. V. League with the Hernici.

36. II. VI. Pacification of Campania.

37. II. VI. Victory of the Romans.

38.II. VII. The War in Italy Flags.

39.It is to be regretted that we are unable to give satisfactory information as to the proportional numbers. We may estimate the number of Roman burgesses capable of bearing arms in the later regal period as about 20,000. (I. VI. Time And Occasion of the Reform) Now from the fall of Alba to the conquest of Veii the immediate territory of Rome received no material extension; in perfect accordance with which we find that from the first institution of the twenty-one tribes about 259, (II. II. Coriolanus) which involved no, or at any rate no considerable, extension of the Roman bounds, no new tribes were instituted till 367. However abundant allowance we make for increase by the excess of births over deaths, by immigration, and by manumissions, it is absolutely impossible to reconcile with the narrow limits of a territory of hardly 650 square miles the traditional numbers of the census, according to which the number of Roman burgesses capable of bearing arms in the second half of the third century varied between 104,000 and 150,000, and in 362, regarding which a special statement is extant, amounted to 152,573. These numbers must rather stand on a parallel with the 84,700 burgesses of the Servian census; and in general the whole earlier census-lists, carried back to the four lustres of Servius Tullius and furnished with copious numbers, must belong to the class of those apparently documentary traditions which delight in, and betray themselves by the very fact of, such numerical details.

It was only with the second half of the fourth century that the large extensions of territory, which must have suddenly and considerably augmented the burgess roll, began. It is reported on trustworthy authority and is intrinsically credible, that about 416 the Roman burgesses numbered 165,000; which very well agrees with the statement that ten years previously, when the whole militia was called out against Latium and the Gauls, the first levy amounted to ten legions, that is, to 50,000 men. Subsequently to the great extensions of territory in Etruria, Latium, and Campania, in the fifth century the effective burgesses numbered, on an average, 250,000; immediately before the first Punic war, 280,000 to 290,000. These numbers are certain enough, but they are not quite available historically for another reason, namely, that in them probably the Roman full burgesses and the "burgesses without vote" not serving, like the Campanians, in legions of their own, - such, e. g., as the Caerites, - are included together in the reckoning, while the latter must at any rate de facto be counted among the subjects (Rom. Forsch. ii. 396).

40. II. VI. Battle of Sentinum.

41. II. VII. Commencement of the Conflict in Lower Italy.

42. II. VII. Quaestors of the Fleet.

43.Not merely in every Latin one; for the censorship or so-called quinquennalitas occurs, as is well known, also among communities whose constitution was not formed according to the Latin scheme.

44. This earliest boundary is probably indicated by the two small townships Ad fines , of which one lay north of Arezzo on the road to Florence, the second on the coast not far from Leghorn. Somewhat further to the south of the latter, the brook and valley of Vada are still called Fiume della fine , Valle della fine (Targioni Tozzetti, Viaggj, iv. 430).

45. In strict official language, indeed, this was not the case. The fullest designation of the Italians occurs in the agrarian law of 643, line 21; [ceivis] Romanus sociumve nominisve Latini, quibus ex formula togatorum [milites in terra Italia imperare solent] ; in like manner at the 29th line of the same peregrinus is distinguished from the Latinus , and in the decree of the senate as to the Bacchanalia in 568 the expression is used: ne quis ceivis Romanus neve nominis Latini neve socium quisquam . But in common use very frequently the second or third of these three subdivisions is omitted, and along with the Romans sometimes only those Latini nominis are mentioned, sometimes only the socii (Weissenborn on Liv. xxii. 50, 6), while there is no difference in the meaning. The designation homines nominis Latini ac socii Italici (Sallust. Jug. 40), correct as it is in itself, is foreign to the official usus loquendi , which knows Italia , but not Italici .

1.I. XI. Punishment of Offenses against Order.

2. II. I. Right of Appeal.

3. II. III. The Senate, Its Composition.

4.II. I. Law and Edict.

5.II. III. Censorship, the Magistrates, Partition and Weakening of the Consular Powers.

6.II. III. Laws Imposing Taxes.

7. I. VI. Class of metoeci Subsisting by the Side of the Community.

8.I. V. The Housefather and His Household, note.

9. II. III. Praetorship.

10. II. III. Praetorship, II. V. Revision of the Municipal Constitutions, Police Judges.

11.The view formerly adopted, that these tres viri belonged to the earliest period, is erroneous, for colleges of magistrates with odd numbers are foreign to the oldest state-arrangements (Chronol. p. 15, note 12). Probably the well-accredited account, that they were first nominated in 465 (Liv. Ep. 11), should simply be retained, and the otherwise suspicious inference of the falsifier Licinius Macer (in Liv. vii. 46), which makes mention of them before 450, should be simply rejected. At first undoubtedly the tres viri were nominated by the superior magistrates, as was the case with most of the later magistratus minores ; the Papirian plebiscitum , which transferred the nomination of them to the community (Festus, v. sacramentum , p. 344, Niall.), was at any rate not issued till after the institution of the office of -praetor peregrinus-, or at the earliest towards the middle of the sixth century, for it names the praetor qui inter jus cives ius dicit .

12. II. VII. Subject Communities.

13.This inference is suggested by what Livy says (ix. 20) as to the reorganization of the colony of Antium twenty years after it was founded; and it is self-evident that, while the Romans might very well impose on the inhabitant of Ostia the duty of settling all his lawsuits in Rome, the same course could not be followed with townships like Antium and Sena.

14.II. I. Restrictions on the Delegation of Powers.

15.People are in the habit of praising the Romans as a nation specially privileged in respect to jurisprudence, and of gazing with wonder on their admirable law as a mystical gift of heaven; presumably by way of specially excusing themselves for the worthlessness of their own legal system. A glance at the singularly fluctuating and undeveloped criminal law of the Romans might show the untenableness of ideas so confused even to those who may think the proposition too simple, that a sound people has a sound law, and a morbid people an unsound. Apart from the more general political conditions on which jurisprudence also, and indeed jurisprudence especially, depends, the causes of the excellence of the Roman civil law lie mainly in two features: first, that the plaintiff and defendant were specially obliged to explain and embody in due and binding form the grounds of the demand and of the objection to comply with it; and secondly, that the Romans appointed a permanent machinery for the edictal development of their law, and associated it immediately with practice. By the former the Romans precluded the pettifogging practices of advocates, by the latter they obviated incapable law-making, so far as such things can be prevented at all; and by means of both in conjunction they satisfied, as far as is possible, the two conflicting requirements, that law shall constantly be fixed, and that it shall constantly be in accordance with the spirit of the age.