This was

only to give room for the still firmer grasp of a new. an aristocracy of mixed origin, composed indifferently of the leading patrician and plebeian families. The test of nobilitas was the capacity to point to ancestors who had held office which carried with it the right to sit on the curule chair. Its outward sign was the possession of the so-called jus imaginum. The imagines themselves were portrait-masks in wax, modelled from the face of the dead, and their primary use was for the purpose of funeral ceremonies. The original was moulded to be placed on the face of the deceased, and so to perpetuate his life in another world; but a copy was kept to give verisimilitude to his fictitious resurrection, which the burial of one of his descendants demanded. At such funerals actors were hired to represent the mighty dead; they wore their imagines, and were adorned with the insignia of the offices which these had filled in life, with the toga praetexta of the consul or praetor, the purple robe or the toga picta of the censor, and they sat on curule chairs round the Forum to listen to the orator who reminded them of their own great deeds.1 As such a public funeral in the Forum was a concession of the state, the prospective right of having one's mask exhibited, which constituted the jus imaginum, was a strictly legal privilege. It was possessed by all those who had been in possession of the toga praetexta and the sella curulis? -the dictator, master of the horse, consul, censor, praetor, and curule aedile. But, even apart from the occasions of such solemn mummery, the imago was a sign of the rank of its possessor. When not funereally employed it was suspended on a bust in the wings of the central hall (atrium) of the noble's house. Beneath each portrait ran an inscription (titulus or elogium), which gave the names and deeds of the person represented. The portraits were joined by lines along the walls which showed the stemma or family tree. It is possible that this display in the atrium was looked on as a public exhibition, and it may originally have been limited by law; but in later times it seems best to conclude that the funerary exhibition alone was the subject of the specific jus. But this outward token of nobility, which at Rome took the place of the modern title of honour, was of 1 Polyb. vi. 53.

2 Cic. in Verr. v. 14, 36 "togam praetextam, sellam curulem, jus imaginis ad memoriam posteritatemque prodendae."

3 In other words, images of other than curule ancestors might be set up in the atrium.

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importance as emphasising the distinction between the nobiles and the ignobiles, in drawing the plebeian aristocracy closer to the patrician, which before the date of the Licinian laws had been in exclusive possession of this right, and in asserting the hereditary claim to office which the Roman electorate was only too ready to recognise. The acceptance of the claim was less dangerous than it is in most modern states, since primogeniture was not recog nised in the transmission of honours, and it was the capable and not the elder son whom the vote of the comitia raised to the curule chair. The claim too might become dimmed by disuse, and the Plebeian whose immediate ancestors had held high rank showed a brighter scutcheon than the Patrician who was connected with a noble stemma by ignoble links.2 But the Patriciate itself conferred a kind of nobility, and one that, whatever its basis, might have been justified by office, for there could have been few members of the order who could not point to curule ancestors in the past. Although the Plebeian who first secured curule office, and thus ceased to be ignobilis, was called a novus homo, the designation seems never to have been applied to the member of a patrician gens.3 Nobility, if once secured, could never be lost; but the hereditary claim to the suffrage of the electors was of little avail if unaccompanied by exceptional merit or by wealth. The claims of the latter were in fact given a kind of legal recognition by the rule established about the time of the first Punic war, that the cost of the public games should not be defrayed exclusively by the treasury. The aedileship, whether curule or plebeian, was, as we shall see, not an obligatory step in the ascending scale of the magistracies; but, as it was held before the praetorship and the consulship, it is obvious that the brilliant display given to the people by the occupant of this office would often render fruitless the efforts of his less fortunate competitors, and that this legitimised bribery would exclude from office both the poorer nobiles and the struggling novus homo.5

4

The idea of a privileged nobility, which closed its ranks to new men, had become fixed by the date of the second Punic

2 Sallust. Jug. 95 (of Sulla) "gentis patriciae nobilis fuit, familia prope jam exstincta majorum ignavia."

3 Cic. pro Mur. 7. 16; Ascon. in Scaurian. p. 22.

4 Dionys. vii. 71.

5 Cf. Cic. de Off. ii. 17, 58 "Vitanda tamen suspicio est avaritiae. Mamerco, homini divitissimo, praetermissio aedilitatis consulatus repulsam attulit."

war. By the close of that war the old stock had reached its maturity and had begun to decline; and, although men like Cato or Cicero might force themselves to the front by pertinacity and ability, or the belief in privilege might be rudely shaken by the people's thrusting into the coterie a Varro or a Marius, the aristocrats came to look on the introduction of new blood as a pollution to the order.2 Time, which purifies all things, had made the slave-blood of the successful Plebeian as blue as that of the descendant of kings by whom he sat.

But, in spite of this unholy alliance of the ancient foes, the distinction between the orders never was abolished. In Cicero's time the separate rights of the Patricians could still be enumerated and defended by the orator. Besides the shadowy and ineffective powers of the patrum auctoritas and the interregnum, they possessed half the places in the great priestly colleges, which were shared between the orders, and certain priests—the Rex Sacrorum, the three great Flamines and the Salii-were chosen exclusively from their ranks. The place of the Patriciate in the theory of the constitution-as illustrated by the auctoritas and the interregnum-is, as we shall see, very great indeed; but this theoretical importance conferred very little power, and the Plebeians, with their exclusive magistracies closed to the patres, with one place reserved for them in the consulship and censorship and the other accessible to their order, had won in the long race for honours.

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1 Liv. xxii. 34 (of the election of Varro, 217 B.C.) "Patres summa ope obstabant, ne se insectando sibi aequari adsuescerent homines."

2 Sallust. Jug. 63 "consulatum nobilitas inter se per manus tradebat; novus nemo tam clarus neque tam egregiis factis erat, quin indignus illo honore, et is quasi pollutus, haberetur."

3 Cic. pro Domo 14, 38 "Ita populus Romanus brevi tempore, neque regem sacrorum, neque flamines, neque salios habebit, nec ex parte dimidia reliquos sacerdotes, neque auctores centuriatorum et curiatorum comitiorum: auspiciaque populi Romani, si magistratus patricii creati non sint, intereant necesse est, cum interrex nullus sit, quod et ipsum patricium esse et a patriciis prodi necesse est." The passage is closely followed by Livy vi. 41, in the speech against the LicinioSextian laws, with which he credits Appius Claudius. We meet with other archaic survivals in connexion with the Senate-the distinction, e.g., between the "greater and lesser gentes" (p. 12) was never lost, and the chief of the Senate, the first member on the list, was always chosen from the gentes majores (see p. 12).

CHAPTER III

THE CLASSES OF THE POPULATION AND THE THEORY OF THE CONSTITUTION IN THE DEVELOPED REPUBLIC

§ 1. The Classes of the Population

By the date of the lex Hortensia (287 B.C.) the Republican constitution had, in all essential points (considered as the constitution of a city-state), completed its growth; but, before we proceed to examine the theory and practice of the developed polity, it is necessary to pause and inquire what changes these centuries of Republican development had made in the status of the citizen, and in that of the other classes of the city, who shared partially in, or were excluded from, his rights, and what modifications had been undergone by the few main legal rules which mark the outline of their social environment.

The merging of Patricians and Plebeians into one community created the necessity for a universal conception of citizenship applicable to the whole body which possessed active political rights, while the growing practice of granting partial civic rights to the members of certain Italian communities led to the distinction between the fully -privileged and the partiallyprivileged citizen. The former is the civis optimo jure, the latter the civis non optimo jure. It is only of the former that we shall speak here; the consideration of the latter will be more appropriately deferred to that portion of our work which treats of the Italian confederation.

The normal mode of the acquisition of citizenship was naturally birth, either from two citizens or from a citizen and a foreigner. The question of the necessity of the marriage of the parents for the full citizenship of the children we shall soon consider; the primary question that presents itself to a nation is

that of the allegiance of the child who is the product of a citizen and a foreigner. In such a case the older principle of Roman law (an instance probably of a universal principle of Italian law) was that, where conubium existed between the parents, the children followed the status of the father; where conubium did not exist, nature dictated that they should follow the condition of the mother.1 But an arbitrary exception to this principle was made at an unknown date in Roman law by a lex Minicia which enacted that, in case of unions without conubium between a Roman and a foreigner, the children should follow the status of the less privileged parent; the child of a civis Romana by a peregrinus was, therefore, himself a peregrinus.

The exceptional modes by which citizens were created were (i.) state-conferment of the civitas on peregrini or of full civitas on cives non optimo jure, and (ii.) the manumission of slaves.

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(i.) State-conferment of the civitas was only an exceptional measure in so far as it required a special legislative act.2 The extraordinary liberality of Rome in this respect, never equalled in the life of the ancient city-state-a liberality which spread the name of Roman citizen first over Italy and then over the greater part of the civilised globe-was not an outcome of any suddenly adopted policy, but persisted from the birth of the city to the world-embracing edict of Caracalla (212 A.D.). A few figures are sufficient to represent the extent of the increase effected by this means. The male citizens who appeared on the census rolls were, at the close of the first Punic war (240 B.C.), 260,000; in 124 they had risen to 394,726; in 85, after the incorporation of the greater part of Italy, to 963,000.4 Under Augustus (28 and 8 B.C. and 14 A.D.) the figures were 4,063,000, 4,233,000, and 4,937,000; and the census of Claudius (47 A.D.) gave a return of 5,984,072 civium capita.5

1 Ulpian Reg. v. 8 "conubio interveniente liberi semper patrem sequuntur; non interveniente conubio matris conditioni accedunt, excepto eo qui ex peregrino et cive Romana peregrinus nascitur, quoniam lex Mensia ["Minicia" has been read in the Veronese palimpsest of the parallel passage of Gaius i. 78, ed. Krueger and Studemund] ex alterutro peregrino natum deterioris parentis conditionem sequi jubet."

2 Or, in the Principate, an administrative act. of the Princeps.

4 Beloch Der Italische Bund pp. 101, 102.

See the section on the powers

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p. 6.

5 Tac. Ann. xi. 25; Beloch op. cit. p. 78. According to Beloch (1.c.) a comparison between the ante-imperial and post-imperial census is vitiated by the fact that the aerarii were excluded from the former, included in the latter. See the section on the censor.